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 T 
 A PRACTICAL EXPOSITION '^^* 
 
 OF THE 
 
 PRINCIPLES OF EQFITY, 
 
 ILLUSTIlATEff nv TIIK 
 
 LEADING DECISIONS THEREON. 
 
 >tUL)fnl'j ;niL) j^lriutilioiicrs. 
 
 II. AltTIIUU SMITH, M.A., 1.I..B. (Lonr) 
 
 \i\ THE Minni.R TEUrUE, BARRI.->TER-AT LAW. 
 
 L( )N 1 )( >X : 
 
 STEVENS AND SONS. 119, CHANCERY LANE, 
 
 3falu publisbrrs anb SoohsrlTfrs, 
 1882.
 
 I 
 
 4 
 
 )KVV
 
 PREFACE. 
 
 In tlie course of liis own reading for law examinations, and in 
 (lirectins: the studios of othere, tlie author has often experienced 
 a difficulty in distinjj^uishing between the principles of law and 
 equity for the time being in force, and doctrines which have 
 been rendered obsolete by the course of recent decisions or the 
 current of legislation ; and he has observed that this difficulty 
 is often traceable to the fact that though the standard books 
 in use have, whilst passing through their many editions, re- 
 corded the bare results of changes, yet no attempt has been 
 matle to modify accordingly the general outline and classifica- 
 tion of the subject. 
 
 Another frequent difficulty has been to meet the require- 
 ments of examiners by esUiblishing a clear association of leading 
 princijiles with lea<ling cases. It is indeed true that many 
 works designed to effect this object are before the public, all, as 
 far as e(|uity is concerned, deriving their inspiration from the 
 invaluable work of Messrs. White and Tudor. But this work, to 
 which almost all living writers on the subject must acknowledge 
 their obligations, is too voluminous for convenient use by 
 students, and, moreover, it makes no pretension to a classification 
 of its admirably selected cases, or to any systematic exposition 
 of the principles of equity. The other works referred to are, 
 on the contrary, .all of them too small and elementary to be 
 relied on alone. Readers have, therefore, been compelled to 
 refer to f»ne book as their main informant on their subject, and 
 to another as a means of cementing the association between its 
 leading doctrines and its leading decisions. 
 
 It has been the author's especial design in the preparation of 
 this work to meet both these difficulties. With respect to the 
 former of them, such an eflbrt has been rendered all the more 
 necessary by the extensive and radical change which Avas effected 
 by the Judicature Acts of 1873 and 1875. Not only is detailed 
 
 a 2
 
 V PEEFACE. 
 
 reference to the provisions of these statutes necessary under 
 almost every branch of the subject, but the fusion of equity 
 and law thereby effected demands a fundamental change in the 
 general classification and division thereof. It is evidently no 
 slight advantage to the reader to have before him a classification 
 based on existing conditions, rather than one which, having been 
 devised under very different circumstances, has been from time to 
 time corrected and modified in an unsystematic and disjointed 
 manner. 
 
 But besides these statutes of supreme importance, there 
 are many others which, not being retrospective, have intro- 
 duced new law without rendering the old obsolete. In such 
 cases the student has to learn two sets of doctrines, one of which 
 is applicable to one set of cases, another to another. In order 
 to avoid confusion in these circinnstances the author has been 
 careful to indicate the difference by the use of appropriate 
 tenses, as well a,s by marking the change conspicuously in the 
 division of the various cliapters and sections. This may be 
 illustrated by reference to the recent Real Property and Convey- 
 ancing Act (1881), the provisions of which, so far as bearing 
 upon the matters discussed, have been fully set out. 
 
 With the view of bringing important leading cases promi- 
 nently before the eye of the reader, they have been conspicu- 
 ously printed under their respective headings. The selection 
 of Alessvs. White and Tudor has been followed in the main, as 
 not only being excellent in itself, but as being familiarly 
 known by the profession, and more or less so by all who have 
 entered upon the study of equity. It has, however, been 
 supplemented by many additional cases bearing on matters 
 not treated of by those learned authors. 
 
 It is hoped that the designs thus attempted will prove to 
 have been accomplished, at least to a sufficient degree to confer 
 some benefit upon the present and future members of the 
 profession. 
 
 H. A. S. 
 
 1, New Square, Lincoln's Inn. 
 Janiuir<i, 1882.
 
 TABLE OF CONTENTS. 
 
 INTRODUCTION . 
 
 I. Design <>f the Work 
 II. Division of the Subject 
 
 PAGE 
 
 1—5 
 
 PART I. 
 
 WHERK THK JURISDICTION RESTS ON THE DISTINCT 
 SUBSTANTIVE PRINCIPLES OF EQUITY. 
 
 Intbooiction . ' ^' 
 
 I. Meaning of the word Equity 
 
 II. Distinction between E-juity and Law 
 
 1. Equity acts I npfrw'/Ki HI 
 
 2. „ looks to the Intent rather than to the Fonii 
 
 3. Equality is E<iuity 
 
 CHAPTER I. 
 
 TRUSTS. 
 
 Skction I. (;ener.m, ViKW 18—31 
 
 I. Historical Outline 
 
 II. What may be the Huljject of a Ti-u«t . . 
 
 III. Who may be a Trustee ... ... 
 
 IV. Who may he tk ecttui que trii;it 
 
 Charities ....•• 
 
 V. Classification of Trusts 
 
 Section II. Expre.s.s Trusts 32—62 
 
 I. The creation of the Tnist 
 
 II. Distinction between executed and executory Trusts . . . 
 III. Voluntary Conveyances and Trusts 
 
 Section III. Resi'ltino Trists 64—78 
 
 Definition and Classification 
 
 I. Parting with Legal and retaining Equiteble Interest 
 II. Purchase in the names of Third Persons .... 
 
 III. Exceptions. Presumption of Advancement .... 
 
 IV. Joint Purchases
 
 VI TABLE OF CONTENTS. 
 
 PAGE 
 
 Section IV. Constructive Trusts 79—100 
 
 I. Definition ........■•• 
 
 II. Renewal of Leases by Trustees ..,.•• 
 III. Purchase of Trust Property by Trustees 
 
 Section v. Duties and Liabilities of Trustees • 101—124 
 
 I. Getting in Trust Property. Perishable Property and 
 Reversions ,........•• 
 
 II. Custody of Trust Property 
 
 III. Investment .......•• 
 
 IV. Liability of Co-trustees ...... 
 
 Section VI. Remuneration of Trustees 1-24—133 
 
 I. General Principle 
 II. Limits of the Principle 
 III. To whom it applie.s 
 
 CHAPTER IT. 
 
 FRAUD 131—175 
 
 Distinction between Law and Equity 
 Classification of Frauds 
 
 I, Actual Fraud 
 
 1. Arising from wrongful Act." 
 . 2, „ „ „ Omissions 
 
 II. Transactions deemed on general grounds Ineqiutablo 
 
 1. Fraud prcsiuuod from the nature of the Transac- 
 
 tion .... 
 
 2. „ circumstances of the 
 Parties ...... 
 
 III. Frauds on Public Policy .... 
 
 IV. Frauds on the private rights of Third Persons . 
 
 CHAPTER III. 
 
 MISTAKE AND ACCIDENT. 
 Section I. Mistake . 17& — 197 
 
 Description 
 I. Mistakes of Law 
 II. Mistakes of Fact 
 
 1. Fundamental Mistakes 
 
 2. Unilateral Mistakes as to Subject-matter 
 
 3. Mistakes of Expression ....... 
 
 Rectification of Instnmients 
 Defective execution of Powers 
 Section II. Accident .... 198 — 204 
 
 I. Remedy at Law 
 
 II. Remedies in Enuity
 
 TABLE OF CONTENTS. Vll 
 
 CHAPTER IV. 
 
 RELIEF AGAINST PENALTIES AND FORFEITURE 205-213 
 Principle of granting Relief 
 
 I. Relief, when given .■•••'■' 
 
 II. Liiiiita of the Principle 
 
 CHAPTER V. 
 
 MORTGAGES AND LIENS. 
 Skction L Mortgages at Law and in EyuiTY . . • • ^^* 
 I. Mortgages at Common Law 
 
 II. The Equity of Redemption 
 
 III. Assignment <>f Mortgages . • • • • " 
 
 IV. Persons entitled to redeem . • • • 
 V. Time of Redemption 
 
 VI. Mortgages of a Wife's Property 
 VIL Mortgagee of Personalty. Bills of Sale 
 Section II. Rights of Mobtoagob and Mortgagee . 234—255 
 
 I. Rights of a Mortgagor in Possession 
 II. Accounting 
 
 III. Remedies of Mortgagees 
 
 IV. Tacking ... 
 
 V. Consolidation. 
 
 or.g 9(54 
 
 Section III. EgiiTABLK Moktoaoe.s 
 
 I. By Agreement 
 II. By Deposit of Title Decd.s 
 
 Section IV. Liens ^^ 
 
 (tenerally . 
 I. LieuH at Law 
 II. Equitable Liens ..•■••■■ 
 
 1 . Charges ...■••■ 
 
 2. Vendor'8 Lien .••■••' 
 8. Vendee's Lien 
 
 Section V. Equitable Principles pabticularlt affecting Mortgages 
 
 c, . 278 — ol5 
 
 AND Sales .... • • • • 
 
 >-277 
 
 I. Notice 
 
 1. Effects of Notice 
 
 2. What constitutes Notice - ■ • • 
 
 Actual Notice 
 
 Constructive Notice .... 
 
 II. Defence of Purchase for Value without Notice . 
 
 III. Liability of Purchasers for application of Purchase-money 
 
 IV. Assignment of Possibilities and Choses in Action .
 
 Vlll TABLE OF CONTENTS, 
 
 CHAPTER VI. 
 
 PAGE 
 
 SURETYSHIP 316—333 
 
 I. Contrast between Legal and Eqviitable Doctrines . . . . 
 II. General Principles of Equity ....... 
 
 III. Releases and Compositions. ........ 
 
 IV. Continuing Suretyship or Guarantee ...... 
 
 V. Contribution between Co-sureties ....... 
 
 VI. Right of Surety to Securities. ....... 
 
 VII. Rights of Suiety in Bankruptcy 
 
 CHAPTEli VJI. 
 
 MARRIED WOMEN. 
 
 Section 1. Separate Estate 334 — 361 
 
 General Comparison of Law and Ecjuity ..... 
 
 I. 'J'he Creation of Separate Estate ....... 
 
 II. The characteristics of separate et-tate ..... 
 
 Voluntary Dispositions ........ 
 
 Liability to Debts ........ 
 
 III. Restraint on Anticipation ..... 
 
 IV. Statutory Separate Estate ..... 
 
 Mairied Women's Property Acts 
 V. Pin-money ....... .... 
 
 VI Paraphernalia .......... 
 
 Section II. Equity to a Settlement 36J— 385 
 
 I. Histoi-y of the Doctrine ....... 
 
 II. Characteristics of the Principle ....... 
 
 1. Rights of Children 
 
 2. Out of what Property Settlement may be claimed 
 
 3. Waiver of Settlement ........ 
 
 4. Equity, when barred ....... 
 
 5. Amount of Settlement ........ 
 
 6. Form „ ., ....... 
 
 III. Reduction into I'ossession of Wife's Property by Husband 
 
 IV. Fraud on Marital Rights 
 
 CHAPTER VIII. 
 
 INFANTS 386—403 
 
 I. Guardianship ........ 
 
 Parents ........... 
 
 Testamentary Guardians ....... 
 
 Appointment by the Court ....... 
 
 II. ^laintenance . .......... 
 
 III. Advancement ........... 
 
 Note. 
 Jurisdiction as to Lunatics 403 — 5
 
 TABLK OF CONTENTS. ix 
 
 CHAPTEK IX. 
 
 PACK 
 
 ELECTION, CONVERSION, SATISFACTION, AND PER- 
 FORMANCE. 
 
 Section I. Election 407 — 42-2 
 
 I. General Principle .......... 
 
 II. Conditions of Election ......... 
 
 III. Election under Powers ......... 
 
 IV. ,, as to Dower ......... 
 
 V. MiscellaneouH Ca.ses ......... 
 
 VI. Election, how effected ......... 
 
 VII. Effects of Election 
 
 Section II. Conversion and Reconversion .... 423 — 443 
 
 General Principle .......... 
 
 I. Conversion, how effected ......... 
 
 II. Effects of Conversion ......... 
 
 HI. Time from which it takes place ....... 
 
 IV. Failure of Piiq'oses of Conversion ...... 
 
 V. Character of Resulting Property ....... 
 
 Reconver-sion. 
 
 Skction III. Satisfaction and Performance .... 444 — 465 
 
 Satibfaction. 
 1. Where the Satisfied Claim arises from Bounty 
 
 Legacies. Portions ........ 
 
 II. SutiNfaction of Debts ......... 
 
 Performance. 
 
 PART II. 
 
 MIIKKE THE JURISDICTION RESTS ON THE DISTINCTIVE 
 PROCEDURE OF EQUITY. 
 
 Introduction 467 — 472 
 
 CHAPTER I. 
 
 THE GENERAL PRINCIPLES OF ACCOUNT .... 473—483 
 
 I. Appropriation of Pajnnents ........ 
 
 II. Set-ofif 
 
 III. Apportionment. 
 
 IV. Contributifin .......... 
 
 V. Defences to an Action for iVLCount .......
 
 TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 PAGE 
 
 THE ADMINISTRATION OF ASSETS. 
 
 Section I. Administration Generally 484 — 515 
 
 I. What is meant by Assets .....••■ 
 
 Legal and Equitable Assets ....... 
 
 II. Priority of Debts 
 
 III. Order of Administration . 
 
 IV. Marshalling of Assets 
 
 V. „ „ Securities 
 
 Section II. Matters Relative to Administeation . . . 516 — 532 
 I. Legacies ........•■•• 
 
 1. Specific .......... 
 
 2. Demonstrative ......... 
 
 3. Time of Payment and Interest ..... 
 
 II. DonaLioncs Mortis Causa ......... 
 
 CHAPTER III. 
 
 PARTNERSHIP 533-552 
 
 Grounds of Jurisdiction 
 
 I. The Nature and Formation of Partnerships ..... 
 TI. Partnership Property ......... 
 
 III. Rights of Partners inter se 
 
 IV. The Relation of Partners to Third Persons . . ... 
 V. The Dissolution of Partnership 
 
 CHAPTER IV. 
 
 PARTITION AND SETTLEMENT OF BOUNDARIES. 
 
 Section I. Partition 555 — 567 
 
 I. Who may claim Partition ........ 
 
 II. What is subject to „ ........ 
 
 III. Mode of effecting „ . 
 
 IV. The Partition Acts 
 
 V. Costs 
 
 Section II. Settlement op Boundaries 568 — 570 
 
 CHAPTER V. 
 
 SPECIFIC PERFORMANCE. 
 
 Section I. Principles of the Jurisdiction .... 571 — 578 
 I. Generally ............ 
 
 II. Grounds for refusing Relief ....... 
 
 III. Statutory Modifications
 
 TABLE OF CONTENTS. XI 
 
 PA6E 
 
 Section II. To what Contracts the Remedy is Applied . 579 — 590 
 I. Contracts relating to Land ........ 
 
 II. „ „ „ Personal Chattels 
 
 III. „ „ „ Personal Acts 
 
 Section III. Defence of the Statute of Frauds . . 591 — 602 
 
 I. Part Performance .......... 
 
 II. Other Grounds for Relief ........ 
 
 III. Evideuce as to Parol Variations ....... 
 
 Section IV. Specific Pekfokmance with a Variation . . 603 — 618 
 Contrast of Law and Equity ........ 
 
 I. ^Vhe^e the Dispute relates to Time ...... 
 
 II. „ ., ,, „ „ Quantity or Quality . . . 
 
 CHAPTER VI. 
 
 INJUNCTIONS. 
 
 Generally .......... 619 — 622 
 
 Section I. Rehtkaining Equitable Wrongs .... 623 — 633 
 
 I. I'reventiny Abuse of Legal Processes . . . . . . 
 
 II. Protecting Equitable Ebtates and Interests ..... 
 
 Section II. Restraining Legal Wrongs .... 634 — 674 
 I. Protecting Rights in Land .... .... 
 
 1. Waste .......... 
 
 2. Tre.spa.ss .......... 
 
 3. Nuisances .......... 
 
 II. Protecting Patent-rights, &c. ....... 
 
 1. Patents .......... 
 
 2. Copyright ......... 
 
 3. Trade-Marks ......... 
 
 CHAPTEIt VII. 
 
 INSTANCES OF JURISDICTION ANALOGOUS TO INJUNC- 
 TION 675—691 
 
 T. Cancellation and Delivery up of Documents 
 
 II. Actions to Establish Wills 
 
 III. Actions Quia Timet .......... 
 
 IV. Actions in the Nature of BiUs of Peace 
 
 V. Writ of Xc Exeat Rcjno ....••••• 
 
 VI. Actions to Perpetuate Testimony
 
 TABLE OF STATUTES. 
 
 PAGE 
 
 20 Hen. III. c. 4 (Commons) 685 
 
 1 Kich. Iir. c. 1 (Uses) 20 
 
 19 Hen. VII. c. 15 (Uses) 20 
 
 26 Hen. VIII. c. 13 ( „ ) 20 
 
 27 Hen. VIII. c. 10 ( „ ) 20—2 
 
 31 Hen. VIII. 0. 1 (Statute of Partition) 555 
 
 32 Hen. VIII. c. 32 (Partition) 555, 557 
 
 13 Eliz. 0. 5 (Fraudulent Conveyances) 56, 60, 380 
 
 27 Eliz. c. 4 (Voluntary „ ) ;,3, 60, 223, 263 
 
 43 Eliz. c. 4 (Charities) 27 
 
 21 Jac. I. c. 3 (Patents) 662 
 
 c. 16 (Limitations) .......... 224 
 
 12 Car. II. c. 24 (Testamentary' Guardians) 389 
 
 29 Car. II. c. 3 (Frauds) 
 
 s. 4 (Agreements in Writing) 257, 580, 591, 595 
 ss. 7 — 9 (Tru.sts) 32, 33 
 
 3 & 4 Will. & M. c. 14 (Fraudulent Devises) .... 248, 485, 488 
 
 4 & 5 Will. & M. c. 20 (Dockets) ' 49I 
 
 8& 9 Will. III. c. 11 (Penaltiesof Bonds) 207 
 
 3 & 4 Anne, c. 4 (Assignment of Notes) ........ 305 
 
 4 & 5 Anne, c. 16 (Penalties of Bonds ; Account) 207, 469 
 
 6 Anne, c. 2 (Irish Registration) ......... 279 
 
 7 Anne, c. 25 (Assignment of Notes) ........ .305 
 
 4 Geo. II. c. 28 (Leases) ........... 208 
 
 8 Geo. II. c. 13 (Copyright) 670 
 
 9 Geo. II. c. 36 (Mortmain) 27, 271, 573 
 
 11 Geo. II. c. 19 (Apportionment) 481 
 
 17 Geo. II. c. 38 (Poor Kates) 189 
 
 7 Geo. III. c. 38 (Copyright) ....... 670 
 
 13 Geo. IIL c. 63 (Evidence) 691 
 
 17 Geo. III. c. 57 (Copyright) 670 
 
 33 Geo. III. c. 21 (Roman Catholic Relief) 390 
 
 41 Geo. III. c. 109 (General Inclosure) 98 
 
 46 Geo. III. c. 69 (Assignment of Salaries) 313 
 
 47 Geo. IIL c. 25 ( „ „ ) 313 
 
 c. 74 (Real Assets) 485
 
 XIV TABLE OF STATUTES. 
 
 PAGE 
 
 54 Geo. III. c. 56 (Copyright) 670 
 
 55 Geo. III. c. 192 (Surrender of Copyholds) 193 
 
 4 Geo. IV. c. 76 (Marriage of Infants) 393 
 
 1 Will. IV. c. 22 (Evidence de bene esse) ........ 691 
 
 c. 40 (Undisposed of Residue) ....... 130 
 
 c. 46 (Illusory Appointments) . . . . . . . 174 
 
 2 & 3 Will. IV. c. 71 (Pre.scription) 656, 658 
 
 3 & 4 Will. IV. c. 15 (Copyright) 670 
 
 c. 27 (Limitations) 224, 225, 244, 247 
 
 c. 42 ( „ ) 244, 247 
 
 c. 74 (Fines and Recoveries) . . 342, 374—5, 440, 441 
 
 0. 104 (Real Assets) 248,485,488 
 
 c. 105 (Dower) 417, 429 
 
 c. 106 (Descents) 499 
 
 4 & 5 Will. IV. c. 40 (Building Societies) 489 
 
 5 Will. IV. c. 22 (Apportionment) 481 
 
 5 & 6 Will. IV. c. 65 (Copyright) 668 
 
 1 Vict. c. 26 (Wills), 193, 195, 244, 271, 390, 418, 427, 436, 501, 502, 517, 
 
 519, 530, 597 
 
 1 & 2 Vict. c. no (Judgments) 57 
 
 2 & 3 Vict. c. 54 (Custody of Infants) 389 
 
 4 & 5 Vict. c. 35 (Partition) 557 
 
 5 & 6 Vict. c. 45 (Copyright) 667, 670—2 
 
 c. 69 (Perpetuation of Testimony) ...... 690 
 
 c. 100 (Copyright, Designs) 670 
 
 6 & 7 Vict. c. 65 ( „ „ ) • ■ 670 
 
 7 & 8 Vict. c. 76 (Purchase-money) ......... 301 
 
 8 & 9 Vict. c. 18 (Lands Clauses) 82, 106, 428, 437 
 
 c. 19 (Railway Bonds) 305 
 
 c. 76 (Legacy Duty) 532 
 
 c. 89 (Registry of Ships) 586 
 
 c. 106 (Real Property) 49,301,307,374 
 
 c. 118 (Commons' Inclosure) . . . 98 
 
 10 & 11 Vict. c. 96 (Trustee Relief) 393 
 
 12 & 13 Vict. c. 26 (Leasing Powers) 193 
 
 13 & 14 Vict. c. 17 ( „ „ ) 193 
 
 c. 60 (Trustee Act, 1850) 564 
 
 c. 104 (Copyright, Designs) 670 
 
 14 & 15 Vict. c. 83 (Lords Justices) 403 
 
 15 & 16 Vict. c. 12 (Copyright, Lithographs, &c.) 670 
 
 c. 76 (C. L. P. Act) 200, 208 
 
 c. 83 (Patents) 664 
 
 c. 86 (Chancery Amendment) ...... 240 
 
 16 & 17 Vict. c. 70 (Lunacy) 403, 405 
 
 17 & 18 Vict. c. 36 (BUls of Sale) 229—31, 261 
 
 c. 90 (Usury) 149
 
 I 
 
 TABLE OF STATUTES. XV 
 
 PAGE 
 
 17 & 18 Vict. c. 104 (Merchant Shipping) 70,586 
 
 c. 113 (Mortgage Debts) 272, 502, 506 
 
 c. 125 (C. L. Procedure) . . . 200, 470, 589, 624, 638, 645 
 
 18 & 19 Vict. c. 43 (Infants' Settlements) 396 
 
 c. Ill (Bills of Lading) 305 
 
 19 & 20 Vict. c. 97 (Mercantile Law Amendment) ..... 331 
 
 c. 120 (Settled Estates) 564 
 
 20 & 21 Vict. c. 57 (Malins' Act) 374, 375, 422 
 
 c. 77 (Court of Probate) 681 
 
 c. 85 (Divorce, &c.) 340, 341, 354 
 
 21 & 22 Vict. c. 27 (Cairns' Act) 576 
 
 c. 70 (Copyright, Designs) ....... 670 
 
 c. 94 (Partition) 557 
 
 c. 108 (Protection Order) 354 
 
 22 & 23 Vict. c. 35 (Lord St. Leonards' Act) 
 
 8. 4 (Insurance) ........ 208 
 
 ss. 12, 13 (E.xecution of Deeds) 195 
 
 88. 14—18 (Charge of Debts) .... 302—3 
 
 8. 23 (Trustee's Receipts) 301 
 
 8. 31 (Indemnity) 121 
 
 8. 32 (Investments) 112 — 3 
 
 23 & 24 Vict. c. 38, 88. 3—5 (Judgments) 223, 286. 491 
 
 88. 10— 12 (Investments) 112,113 
 
 c. 83 (Infants' Settlements) 396 
 
 c. 126 (C. L. Procedure) 207,209 
 
 c. 127 (Solicitors) 268 
 
 0. 145 (Lord Cran worth's) ........ 
 
 88.11 — 16 (Mortgagees' Powers) 242 
 
 s. 25 (Investments) 113 
 
 8. 26 (Maintenance) 398, 400 
 
 8. 29 (Trustee's Receipts) 301 
 
 8. 30 (Compounding Debts) 102 
 
 24 & 25 Vict. c. 73 (Copyright, Designs) 670 
 
 25 & 26 Vict. c. 28 ( „ Paintings) 670 
 
 c. 42 (Rolfs Act) 577, 654, 686 
 
 c. 53 (Land Regi.stry) 259 
 
 c. 63 (Merchant Shipping) . . . . . 70 
 
 c. 89 (Companies) 95, 535 
 
 c. 108 (Reserving Minerals) 195 
 
 26 & 27 Vict. c. 57 (Regimental Debts) 489 
 
 27 & 28 Vict. c. 112 (Judgments) 223,286 
 
 c. 114 (Improvement of Land) . . . .114 
 
 28 & 29 Vict. c. 86 (Bovill's Act) 536—7, 548 
 
 30 & 31 Vict. c. 47 (Companies) 535 
 
 c. 59 (Relief from Forfeiture) 208 
 
 c. 69 (Vendor's Lien) 272, 508
 
 XVI 
 
 TABLE OF STATUTES. 
 
 30 & 31 
 
 31 Vict. 
 31 & 32 
 
 32&33 
 
 •33 Vict. 
 33 & 34 
 
 Vict. c. 131 (Companies) 
 c. 132 (Investments) 
 c. 144 (Life Policies) . 
 c. 4 (Sales of Keversions). 
 Vict. 0. 40 (Partition) .... 
 
 c. 86 (Marine Policies) . 
 Vict. c. 46 (Specialty Debts) 
 
 c. 62 (Debtora) . . . . 
 
 c. 71 (Bankruptcy) 
 
 s. 15 
 
 s. 29 
 
 s. 40 
 
 s. 91 
 
 ss. 125—6 ... 
 c. 114 (Companies) 
 c. 14 (Naturali.sation) . . . . 
 Vict. c. 23 (Felon's E.state) . 
 
 c. 28 (Solicitor's Kemuneration) 
 c. 35 (Apportionment) 
 c. 76 (Absconding Debtors) 
 c. 93 (Married Women's Property) 
 ss. 1, 7, 8 
 
 ss. 2—6, 10 . . . 
 
 ss. 9, 11,12 . . . . 
 ss. 13, 14 . 
 0. 27 (Debenture Stock) . . . . 
 Vict. c. 48 (Roman Catholic Relief) . 
 c. 12 (Infants' Custody) . . . . 
 
 34 Vict. 
 34 &35 
 36 Vict. 
 36 & 37 Vict. c. 66 (Judicature) 
 
 PAGE 
 
 . . 535 
 
 113—4 
 
 . 56, 305 
 
 . 146 
 
 428, 437, 559—67 
 
 56, 305 
 
 . 488—9 
 
 . 687 
 
 . 310 
 
 .129, 132 
 
 . 264, 493 
 
 57, 58, 356 
 
 . 325 
 
 . . 535 
 
 . -25, 26, 429 
 
 . . 223 
 
 98,314 
 
 . . 481 
 
 . 688 
 
 341, 364, 487 
 
 . 355 
 
 . . 356 
 
 . 357 
 
 72, 347, 400 
 
 . 114 
 
 . . 390 
 
 387—9 
 
 135, 205, 290, 292, 624, 680, 686, 688 
 
 s. 18 (Appeal to Privy Council) 
 s. 24 (Concurrent Jurisdiction) . 
 
 § 2 (Equitable Defences) 
 
 § 5 (Injunctions) 
 
 § 6 (Legal and Equitable Claims) . 
 .s. 25, § 3 (Waste) .... 
 
 § 5 (Mortgagor's Rights) 
 
 § 6 (Assignment of Choses in Action 
 
 § 7 (Stipulations in Contracts) 
 
 § 8 (Injunction, Receiver) . 
 
 § 11 (Equity to prevail) . 
 s. 34 (Jm-isdiction of Chancery Div 
 
 291, 
 
 404 
 
 2 
 
 291 
 
 624 
 
 . 368 
 
 . 638 
 
 . 235 
 
 56, 312 
 
 . 604 
 
 . 651, 684 
 
 118,639 
 
 2, 217, 386, 533, 
 
 553, 577 
 
 O. XXXI 202, 689 
 
 37 & 38 Vict. c. 37 (Exclusive Powei-s) 175 
 
 c. 50 (Married Women's Property) 354, 358 
 
 c. 57 (Limitations) 225, 245, 650
 
 TABLE OF STATUTES. 
 
 XVll 
 
 41 & 42 Vict. 
 
 42 & 43 Vict. 
 
 37 & 38 Vict. c. 62 (Infants' Relief) .... 
 
 c. 78 (Vendor and Purchaser) 
 
 38 & 39 Vict. c. 60 (Friendly Societies) 
 
 c. 77 (Judicature) ..... 
 
 8, 7 (Lords Justices) 
 
 8. 10 (Administration) 
 c. 87 (Land Transfer) .... 
 c. 91 (Trade Marks) 
 
 39 & 40 Vict. c. 17 (Partition) 
 
 c. 33 (Trade Marks) 
 
 40 & 41 Vict. 0. 33 (Contingent Remainders) 
 34 (Mortgage Debts) .... 
 
 c. 31 (Hills of Sale) 
 
 76 (Companies) ..... 
 
 43 Vict. c. 19 (Companies) 
 
 44 & 45 Vict. c. 41 (Conveyancing and Law of Property') 
 
 8. 14 (Forfeiture of Leases) 
 8. 15 (Conveyance by Mortgagor) 
 8. 17 (Con.solidation) 
 8. 18 (Leases by Mortgagor and Mortgagee) 
 88. 19, 20 (Mortgagees' Powers) 
 8. 21 (Application of Purchase-money) 
 8. 30 (Descent of Trust Property) . 
 B. 36 (Trustee's Receipts) . 
 8. 37 (Compounding Debts, &c.) 
 8. 39 (Restraint on Anticipation) 
 8. 42, 3 (Infants' Maintenance) 
 B. 65 (Ixing Tenns) .... 
 c. 44 (Solicitors' Remuneration) 
 
 PAGE 
 
 . 152 
 
 . 252, 604 
 
 . 489 
 
 . 292, 624 
 
 . 404 
 
 264, 488, 493 
 
 . 253, 259 
 
 . . 673 
 
 565—6 
 
 . . 673 
 
 . 644 
 
 . 272, 508 
 
 229—33, 261 
 
 . . 535 
 
 . 535 
 
 . . 113 
 
 209, 211, 213 
 
 . . 223 
 
 . 255 
 
 , . 234 
 
 . 242 
 
 . . 237 
 
 . 221 
 
 , . 302 
 
 . 102 
 
 353, 422 
 
 . 398 
 
 . Ill 
 
 . 98
 
 TABLE UF CASES. 
 
 Abbot, Erp., 339 
 
 Alxly V. Loveday, 292 
 
 Aberan.an Iron Works v. W ickens, 277, 
 
 610 . ^. 
 
 Aberdeen r. Chitty, 264 
 Abemethy r. Hutchinson, 6b8 
 Abrahal r. Bnbb, 640 
 ACKBOYU V. Smithson, 65, 4^4 
 Acton V. White, 350 
 
 . r. Woodgate, 62 
 
 Adair r. Shaw, 118 
 Adams v. Claxton, 248, 259 
 
 V. Fenrick, 522 
 
 V. Gamble, 342 
 
 Adamson, i'jp., 548 
 
 y. Armitage, .540 
 
 Adderley r. Dixon, 582, 583 
 Adey v. Arnold, 491 
 Adlington r. Cann, 597 
 Adney v. Field, 194 
 Agar V. Fairfax, 556, obb 
 Agassiz V. Squire, 3 73 
 Agra &c. Bank,_i?f, 312 
 Aguilar r. A., 377 
 Ainaworth, Exp., 262 
 Aitcheson v. Dixon, 381 
 Albert (Prince) v. Strange, 669 
 Albion &c. Co., /Jf, 495 
 
 . r. Maitm, 94 
 
 Alcock V. Sloper, 105 
 
 Alderson J'. White, 219 
 
 AMis r. Fraser, 651 
 
 Aldred's Ca., 657 
 
 Aldrich r. CoorER, ..09 
 
 Alexander v. D. of Wellmgton, 314 
 
 V. Young, 351 
 
 Alf.yn v. Belchikr, 169 
 AlMay r. Fletcher, 373 
 Allen r. A., 562 
 
 V. Jackson, 162 
 
 V. Knight, 249, 273, 288 
 
 V. Martin, 651 
 
 V, M'Pherson, 681 
 
 V. Seckham, 283 
 
 Alley V. Deschamps, 610 
 Alven V. Bond, 93 
 Amand v. Bradboume, 127 
 Ames r. Parkinson, 107 
 Amis V. Witt, 529 
 Amphlett v. Parke, 4-36 
 Ancaster v. Mater, 496, 505 
 Anderson v. Radcliffe, 314 
 Andrew v. Trinity Hall, 413 
 
 V. Wrigley, 293, 295 
 
 Andrews v. Partington, 397 
 
 r. Salt, 388, 392 
 
 Angell v. A., 689 
 Angiis V. A., 12 
 
 V. Dalton, 658 
 
 Anon (1 Atk. 521), 687 
 
 (3 Atk. 314), 222, 224 
 
 {Freem. 137), 281 
 
 (Freem. 145), 305 
 
 (Freem. 224), 193 
 
 (Jac. 265, n.), 394 
 
 (2 K. & J. 441), 545 
 
 (6 Mad. 10), 633 
 
 (1 Salk. 155), 222 
 
 (2 Vem. 706), 381 
 
 (2 Ves. sr. 629), 588 
 
 (3 Ves. 515), 125 
 
 (5 Vin. Abr. 522), 600 
 
 Antrobns u. Smith, 51 
 
 Appleton V. Rowley, 343 
 
 Apreece v. A., 521 
 
 Ap-Rice's Case, 637 
 
 Arab, The, 515 
 
 Arbuthnot v. Norton, 31 3 
 
 Arccdeckne v. Howard, 329 
 
 Archer v. Hudson, 155 
 
 r. Preston, 12 
 
 Ardesoife r. Bennett, 422 
 
 Armitage v. Baldwin, 331 
 . — V. Coates, 351 
 
 Armstrong v. Burnet, 523 
 
 Arnold, Exp., 432 
 
 V. A., 527 
 
 V. Hardwicke, 170, 173 
 
 h2
 
 XX 
 
 TABLE OF CASES. 
 
 Arnold v. Woodhams, 353 
 Ashburner v. Macgiiire, 521, 524 
 Ashburnham v. A., 420 
 Ashby V. Palmer, 429, 440 
 Ashenhurst ?'. James, 221 
 Asliton V. A., 522 
 
 V. Carrigan, 589 
 
 V. Dalton, 261 
 
 V. McDougall, 341, 385 
 
 Ashurst V. Mill, 183 
 
 Ashwell V. Lomi, 159 
 
 Askew V. Rooth, 341 
 
 Assoc, of Land Financiers, Re, 495 
 
 Astbury, JSxp., 261 
 
 Astley V. Weld on, 207 
 
 Aston V. A., 359, 640, 641 
 
 Atcheson v. A., 377 
 
 Atkins r. Hntt, 568 
 
 Atkinson v. Littlewood, 460 
 
 ■ V. Rawson, 492 
 
 Atterbury v. Wallis, 285 
 Att.-G. V. Alford, 115 
 
 V. Aspinall, 635 
 
 V. Bovvyer, 568 
 
 V. Bristol, M. of, 66 
 
 r. Cashel, Corp. of, 99 
 
 V. Clarendon, 90 
 
 v. Cleaver, 652 
 
 V. Crofts, 223 
 
 V. Day, 596, 614 
 
 V. Dixie, 99 
 
 V. Doughty, 657 
 
 V. Dudley, 100 
 
 V. Edmunds, 132 
 
 V. Forbe.s, 652 
 
 V. Fullerton, 569 
 
 V. Grote, 523 
 
 r. Hardy, 99 
 
 ?•. Herrick, 66 
 
 V. Holford 429 
 
 • r. laoxMONGEEs' Co., 29 
 
 V. Kingston, M. of, 660 
 
 V. Leeds Corp., 660 
 
 V. Lonsdale, 660 
 
 V. D. of Marlborough, 642 
 
 V. Mountmorris, 514 
 
 V. Norwich, M. of, 127 
 
 V. Plymouth, Corp. of, 99 
 
 V. Ray. 166 
 
 r. Sheffield Gas Co., 652 
 
 V. Sitwell, 598 
 
 V. South Moulton, 66 
 
 V. Stamford, M. of, 99 
 
 V. Stephens, 569, 570 
 
 V. St. John's Hosp., 24 
 
 V. Syderfin, 28 
 
 V. Terry, 660 
 
 V. Tonner, 66 
 
 V. U. K. Telegraph Co., 652, 654 
 
 V. Weymorith, 429, 435 
 
 Att.-G. of Jamaica v. Manderson, 474 
 Att. and Sol. Act, 1870, Re, 314 
 Attwood r. Small, 139, 142, 575, 618 
 Atwell V. A., 425 
 Atwood V. Maude, 550 
 Aubin V. Holt, 545 
 Austen v. Halsey, 397 
 
 V. Taylor, 41, 47 
 
 Ayerst v. Jenkins, 69, 679 
 Ayles V. Cox, 614 
 Aylesford's Ca., 593 
 Aylesford r. Morris, 146, 148 
 Aylifle v. Murray, 129 
 Aynsley v. Glover, 657 
 
 V. Woodsworth, 481 
 
 Aynsly v. Reed, 223 
 
 Baber's Trusts, In re, 63 
 Bach V. Andrew, 75 
 Back V. Stacey, 656 
 Backhouse v. Charlton, 264, 549 
 Bacon r. B., 118 
 
 V. Jones, 666 
 
 Baddeley v. B., 53 
 Badnall v. Samuel, 321 
 Baggett r. Meux, 349, 350 
 Bagnall v. Carlton, 95 
 Bagot v. B., 648 
 
 V. Oughton, 227 
 
 Bagshaw v. Winter, 379 
 Bade v. B.. 268 
 Bailey r. B., 500 
 
 V. Edwards, 325 
 
 • V. Finch, 480 
 
 V. Richardson, 283 
 
 BaiUie v. B., 630 
 
 Baily v. Taylor, 667, 672 
 Bain v. Sadler, 487 
 Bainbrigge v. Blair, 131 
 
 V. Browne, 155 
 
 Baker's Trusts, Re, 347 
 Baker v. Bradley, 350 
 
 V. Gray, 254 
 
 V. Hull, 380 
 
 V. Martin, 128 
 
 V. Monk, 99 
 
 V. Peck, 90 
 
 V. Sebright, 648 
 
 V. White, 163 
 
 Baldwin v. Rochford, 1 47 
 Balfour v. Welland, 297 
 Ball V. B., 388 
 
 V. Coggs, 582 
 
 V. Coutts, 376, 396 
 
 V. Harris, 299 
 
 V. Montgomery, 376 
 
 Balls V. Strutt, 633 
 Balmain v. Shore, 541 
 Balsh V. Higham, 127
 
 TABLE OF CASES. 
 
 XXI 
 
 Balsh V. Symes, 268 
 Bank of England Case, 540 
 Bank of Ireland v. Beresford, 320 
 Bank of London v. Tyrrell, 97 
 Bank of Scotland i\ Christie, 476 
 Banks v. Scott, 427, 432 
 Barclay, Exp., 261 
 Bardswell v. B., 34, 35 
 Baring v. Nash, 555, 557 
 
 V. Noble, 547 
 
 Barker, Re, 267 
 Barker v. Goodair, 549 
 
 V. Lea, 367 
 
 V. Rayner, 524 
 
 V. St. Quentin, 268 
 
 V. Smart, 275 
 
 V. Vansommer, 148 
 
 Barling v. Bishop, 57 
 Barlow v. Grant, 400 
 Barnard's Case, 639 
 Barnard v. Ford, 373 
 Barnes v. Eacster, 515 
 Barnewell v. Cawdor, 499 
 Barnhart v. Greenshields, 280 
 Barrack v. McCulloch, 341 
 Barret v. Blagrave, 213, 590 
 Barrett v. Hartley, 125, 156 
 Barriugton v. Tristram, 526 
 Barrow v. B., 422 
 Barrow's Trade Marks, Jie, 673 
 Barrs v. Fewke, 65 
 Barry v. Crosket, 141, 166 
 Bartlett v. B., 310 
 
 V. Pickersgill, 68 
 
 Barton v. Cooke, 521 
 
 Basan v. Brandon, 525 
 
 Basingstoke (M. of) v. Bolton, 569 
 
 Basnett v. Moxon, 564 
 
 Basset v. Noswortht, 286, 290 
 
 Bastard r. Proby, 47 
 
 Hatard v. Hawes, 318 
 
 Bate V. Hooper, 105 
 
 Bateman v. Hotchkin, 647, 648 
 
 V. Willoe, 627 
 
 Bates V. Mackinley, 522 
 Bateson v. Gosling, 325 
 Bath (E. of) V. Sherwin, 686 
 Batstone v. Salter, 72 
 Bawtree r. Watson, 267 
 Bayley v. Williams, 158 
 Bayspool v. Collins, 59 
 Baxter v. Conolly, 586 
 
 V. West, 551 
 
 Beadel v. Perry, 656 
 Beak's Estate, Be, 529 
 Beale v. Symonds, 130 
 Beanland v. Bradley, 158 
 Beard v. Travers, 633 
 Beauchamp v. Winn, 182 
 V. Huntley, 630 
 
 Beauclerk v. Mead, 431 
 
 Beaufort r. Patrick, 168 
 Beaufo3''R Estate, In re, 106 
 Beaumont, Be, 196 
 Beaumont i'. Carter, 372 
 Beavan v. E. of Oxford, 59, 309 
 Beckford i;. B., 71 
 
 V. Tobin, 526 
 
 Beckley v. Newland, 306 
 Beecher r. Major, 72 
 Beere v. Hoff mister, 171 
 Beeston r. Stutely, 574 
 Beevor v. Luck, 253 
 Bell V. L. & N. W. E., 308 
 
 V. Phyn, 543 
 
 Bellairs v. B., 162 
 Bellamy v. Sabine, 286 
 Bellasis' Trust, In re, 43 
 Bellasis i>. Compton, 69 
 
 V. Uthwatt, 453 
 
 Bendyshe, Be, 372 
 Benett v. Wyndham, 127 
 Bennet v. B., 72 
 Bennett, Exp., 89, 90, 94 
 Bennett v. Biddies, 372 
 Bennitt v. Whitehouse, 666 
 Benson v. B., 440, 441 
 
 • V. Whittam, 34 
 
 Bentley v. Craven, 97 
 Benyoni'. Fitch, 148, 149 
 Berminghara v. Sheridan, 588 
 Berry v. Bryant, 398 
 Best V. Dra^e, 651 
 Bethell v. Abraham, 453 
 Betts V. Kimpton, 335 
 Beverley v. Att.-Gen., 66 
 Bickford r. Skewes, 666 
 Bidwell's Settmt., Be, 411 
 Biedermann v. Seymour, 499 
 Biel's Estate, In re, 93 
 Biggs r. Terry, 394 
 Bigland v. Huddlestone, 420 
 Bill V. Cureton, 679 
 
 — V. Sierra &c. Co., 631 
 Billinghurst v. Walker, 505 
 Bingham v. B., 180 
 Birch V. Blagrave, 65 
 
 V. EUames, 279, 281 
 
 V. Joy, 611 
 
 Birchall v. Pugin, 268 
 Birch-Wolfe v. Wolfe, 649, 650 
 Bird V. Boulter, 596 
 
 V. Fox, 298 
 
 Birkett, Be, 37 
 
 Birley r. B., 170 
 
 Birmingham v. Kirwan, 416, 417 
 
 Bisco V. E. of Banbury, 283 
 
 Bishop, Exp., 58 
 
 Bishop V. Wall, 343 
 
 Blackborn v. Edgeley, 155
 
 XXll 
 
 TABLE OF CASES. 
 
 Blackburn v. Stables, 42 
 
 Blacket v. Lamb, 415 
 
 Blackett v. Bates, 589 
 
 Blackie v. Clark, 158 
 
 Blacklow ^'. Laws, 339 
 
 Blackwood v. London &c. Bank, 288 
 
 Blagden, £:vp., 479 
 
 Blagden v. Bradbear, 595 
 
 Blake v. Bunbury, 411 
 
 V. Peters, 644 
 
 Blakely Ordnance Co., He, 312 
 Blanchet v. Faster, 384 
 Bland v. Dawes, 339 
 Blandy v. Widmore, 464 
 Blenkinsopp v. B., 57 
 Blennerhasset v. Day, 98 
 Blogg V. Johnson, 126 
 Blore V. Sutton, 596 
 Blount V. Barrow, 530 
 Bloye's Trust, In re, 93 
 Blue V. Marshall, 102 
 Blunt V. Bestland, 381 
 Boast V. Firth, 199 
 Bock V. Gopisson, 266 
 Boehm v. Wood, 606 
 Bold r. Hutchiason, 190 
 Bolton V. Ward, 557 
 Bonar v. Macdonald, 324 
 Bond V. England, 505 
 
 V. Kent, 275 
 
 V. Simmons, 380 
 
 Bone V. Pollard, 78 
 Bonham v. Newcomb, 220 
 Bonithon v. Hickmore, 127 
 Bonner v. B., 373, 512 
 Bonney v. Ridgard, 294 
 Bonser v. Cox, 323 
 Booker v. Allen, 447 
 Booth V. Blundell, 497, 498 
 Bootle V. Blundell, 682 
 Bosanquet r. Dashwood, 678 
 
 V. Wray, 546 
 
 Bostock V. Floyer, 109 
 Bothamley r. Sherson, 518, 521 
 Boughton*'. B., 415, 418 
 Boultbee v. Stubbs, 322 
 Boulton V. Bull, 663 
 
 V. Jones, 185 
 
 Bourne ?'. B., 425 
 Boursot V. Savage, 285 
 Bouverie v. Prentice, 569 
 Bovill V. Crate, 666 
 
 V. Hammond, 544 
 
 Bowker v. Bull, 332 
 Bowles' Case, 637 
 Bowles V. Stewart, 84 
 Bowmaker v. Moore, 317 
 Bowra v. Wright, 560 
 Bowser v. Maclean, 652 
 Bowsher v. Watkins, 684 
 
 Boyd's Sett. Est., Re, III 
 
 Boyd V. Dickson, 608 
 
 Boyes v. Liddell, 607 
 
 Boynton v. Parkhurst, 501, 510 
 
 Boyse v. Rossborough, 151, 682 
 
 Bozon V. BoUond, 267 
 
 Brace v. D. of Mablborough, 289 
 
 Brace v. Wehnert, 587 
 
 Bracebridge v. Buckley, 211 
 
 Bradbury v. Morgan, 326 
 
 Bradford i\ Romney, 191 
 
 Bradish v. Gee, 442 
 
 Bradly v. Westcott, 343 
 
 Bradshaw v. B., 393 
 
 Brain, Me, 211 
 
 Braham v. Bustard, 673 
 
 Brandon v. Robinson, 349 
 
 Brantom r. Griffits, 232 
 
 Brassey v. Chalmers, 558 
 
 Breadalbane v. Chandos, 190 
 
 Brecon (M. of) v. Seymour, 251 
 
 Breed's Will, Be, 398 
 
 Brennan v. Bolton, 593 
 
 Breslauer v. Brown, 333 
 
 Breton v. Woollven, 51 
 
 Brette, Re, 353 
 
 Brewer v. Swirles, 344 
 
 Brice's Case, 552 
 
 Brice v. Stokbs, 116, 119, 120, 123 
 
 Bridge v. B., 54 
 
 Bridges v. Hales, 390 
 
 V. Highton, 660 
 
 Bridgman v. Dove, 497 
 
 ^'. Green, 158 
 
 Bridson v. Benecke, 666 
 
 V. Macalpine, 666 
 
 Briggs V. Chamberlain, 441 
 
 V. Merchant &c. Assoc, 266 
 
 V. Penny, 36 
 
 Bright i\ Larcher, 436 
 
 ■ V. North, 127, 632 
 
 Brighton Arcade Co. v. Dowling, 480 
 
 Briscoe v. B., 421 
 
 Bristow V. B., 526 
 
 Bristowe v. Ward, 412 
 
 Britten v. B., 372 
 
 Broad v. B., 227 
 
 Brocksopp V. Barnes, 125 
 
 Brodie v. Barry, 347, 419 
 
 Bromfield, Exp., 427 
 
 Bromley v. Brunton, 50 
 
 ■('. Holland, 677 
 
 r. Smith, 146 
 
 Brook V. Badley, 429 
 
 V. Hertford, 555 
 
 Brooke v. B., 341 
 
 V. Garrod, 219, 606 
 
 V. Warwick, 524 
 
 Brooking v. Jennings, 491 
 Brookman v. Rothschild, 97
 
 TABLE OF CASES. 
 
 XXIU 
 
 Brooks V. Stuai't, 317 
 Broughton v. B., 131 
 Broun v. Kennedy, 156 
 Brown v. B., 584 
 
 V. Cole, 224 
 
 V. G. E. R. Co., 2Q9 
 
 V. Gellatly, 106 
 
 V. Higgs, 37, 38 
 
 V. Litton, 133 
 
 V. Oakshot, 541 
 
 V, Peck, 164 
 
 V. SeweU, 237 
 
 V. Temperley, 399 
 
 V. Wales, 569 
 
 Browne, Re, 388 
 
 V. Carr, 325 
 
 Browning v. Wright, 18-8 
 Bruce, Exp., 260 
 Bruin v. Knott, 401 
 Bryan v. Clay, 491 
 Bryant, Exp., 267 
 Brydges v. Phillijjs, 497 
 
 V. Stevens, 641 
 
 Bryson v. Whitehead, 165 
 Buchanan v. Harrison, 438 
 Buck V. Robson, 490 
 Buckell V. Blenkhom, 196 
 Buckland v. Pocknell, 270 
 Buckle V. Mitchell, 59 
 Buckmaster v. Harrop, 595 
 Budge V. Gnmmow, 111 
 Buggins V. Yates, 35 
 Bull V. Hutchens, 286 
 Bullock V. Dommitt, 201 
 
 V. Menzies, 377 
 
 V. Wheatley, lai 
 
 BuUpin V. Clarke, 345 
 Bulteel V. Jan-old, 317 
 
 V. Pliunmer, 174 
 
 Bunbury's Estate, Re, 61S 
 Bunbury v. B., 12 
 Bunn V. Grey, 164 
 Burden v. B., 131 
 Burdon v. Barkus, 540 
 
 V. Dean, 369 
 
 Burge V. Brutton, 132 
 Burgess v. B., 673 
 
 V. Eve, 327 
 
 V. HUls, 674 
 
 V. Wheate, 129 
 
 Burgh V. Langton, 242 
 Burgoyne v. Hatton, 283 
 Burke v. Greene, 314 
 Burlase v. Cooke, 290 
 Burley v. Evelyn, 435 
 Burlinson's Case, 539 
 Burn V. Carvalho, 308 
 Burridge v. Bradyl, 500 
 Burrough v. Philcox, 38 
 Burro wes v. Lock, 140 
 
 Burt V. Hellyar, 556 
 
 Burton v. Gray, 259 
 
 Bury V. Bedford, 672 
 
 Bushell V. B., 279, 286 
 
 Butcher v. Kemp, 417 
 
 Bute V. Glamorgan Canal Co., 569 
 
 Butler V. Carter, 122 
 
 V. Cumpston, 341 
 
 V. Freeman, 393, 399 
 
 Buttanshaw v. Martin, 352 
 Butterfield v. Heath, 60 
 Buttricke v. Thurgood, 420 
 Buxton V. B., 102 
 
 V. Lister, 582 
 
 Byam v, B., 44 
 
 V. Munton, 436 
 
 Byne v. Blackburn, 397 
 
 V. Vivian, 677 
 
 Caballero v. Henty, 282, 617 
 Cafe V. Bent, 105 
 Caffrey v. Darby, 102, 127 
 Calcraft v. Roebuck, 611, 614, 617 
 Caldwell v. Vanvlissingen, 666 
 Calisher v. Forbes, 310 
 Calvert v. Gordon, 327 
 
 V. London Dock Co., 323, 324 
 
 Campbell v. Allgood, 640 
 
 V. Dalhousie (E. of), 690 
 
 V. French, 192 
 
 V. Home, 171 
 
 V. Leach, 195, 196 
 
 V. Walker, 90, 91, 100 
 
 Campion v. Cotton, 361 
 Canadian fee. Co., In re, 95 
 Cane v. Allen, 98 
 Canning v. C, 559 
 Cannon v. Johnson, 567 
 Capel V. Butler, 330 
 Cap23er v. Spottiswoode, 275 
 Carr's Trust, Re, 370, 371 
 Carr v. Eastabrook, 376 
 
 V. EUison, 440 
 
 Carrick v. Errington, 65 
 Carrodus v. Sharp, 612 
 Carron &c. Co. v. Maclaren, 629, 630 
 Carter v. C, 249 
 
 V. Palmer, 98 
 
 V. Taggart, 376, 379 
 
 V. Wake, 264 
 
 Carteret v. Pettus, 12, 13 
 Cartwright v. Pultney, 556 
 Carver v. Bowles, 414 
 
 V. Richards, 170 
 
 Gary v. C, 90 
 Casberd v. Ward, 262 
 Casborne v. Scarfe, 220 
 Castle V. Warland, 109 
 V. Wilkinson, 616
 
 XXIV 
 
 TABLE OF CASES. 
 
 Catling V. King, 598 
 Caton V. a, 594, 595 
 
 V. Hideout, 347 
 
 Cator V. E. of Pembroke, 272, 2/4 
 Cavan r. Pulteney, 419 
 Cavander v. Bulte«l, 282 
 Cave V. C, 396 
 Cavendish v. Greaves, 311 
 Cawdor v. Lewis, 168 
 Cecil V. Jnxon, 340 
 Central R. Co. r. Kisch, 141 
 Chalk V. Danvers, 68 
 Chapman v. C, 259 
 
 V. Gibson, 193, 196, 197 
 
 V. Hart, 524 
 
 Charlton v. Coombes, 162 
 
 V. West, 460 
 
 Charnley v. Grundy, 200 
 Chartered Bank &c. v. Henderson, 312 
 Chase v. Box, 476 
 Chatteris v. Young, 457 
 Chatterton v. Cave, 669, 670 
 Chattock ?'. MuUer, 574 
 Chancey's Case, 458, 460 
 Chambers u Goldwin, 133, 218, 221 
 
 V. Howell, 97 
 
 V. Minchin, 119 
 
 V. Waters, 94 
 
 Champneys v. Burland, 250 
 Chichester v. Bickerstaffe, 431 
 
 V. Coventry, 449, 451, 452, 
 
 453 
 Child v.C.,UO 
 
 V. Elsworth, 526 
 
 Childers r. C, 75 
 Chillmer v. C, 212 
 Chinnock v. Gainsbury, 588 
 Chitty V. Parker, 438 
 Cheale v. Kenward, 585 
 Cheetham v. Ward, 326 
 Cherry v. Mott, 514 
 Chertsey Market, Jle, 633 
 Chesterfield v. Janssen, 55, 136 
 Chorley, Exp., 312 
 Christian v. Field, 223 
 Christophers v. White, 131 
 Christy v. Courtenay, 74 
 Churchill v. C, 414 
 
 V. Small, 361 
 
 City Bank, Exp., 312 
 
 City Disct. Co. v. McLean, 474, 476 
 
 City of London Brewery v. Tennant, 
 
 577, 656 
 Civil Service Supply Ass. v. Dean, 
 
 674 
 Clack V. Carlon, 132 
 Clarendon v. Hornby, 559 
 Clark V. Gird wood, 191 
 
 V. Holland, 102 
 
 V. Sewell, 459, 526 
 
 Clark V. Taylor, 30 
 Clarke v. Boyle, 270 
 
 V. Cobley, 152, 168 
 
 V. Cort, 479 
 
 V. Franklin, 431, 439 
 
 v. Hart, 211 
 
 V. Henty, 317, 324 
 
 V. Tipping, 483 
 
 V. Wright, 60 
 
 Clavering v. C, 638 
 
 Clay, Exp., 548 
 
 Clayton's Case, 474, 476 
 
 Clayton r. Illingworth, 581 
 
 Clegg V. C, 645 
 
 V. Edmondson, 69, 85 
 
 V. Fishwick, 84, 540 
 
 Clements v. Hall, 84 
 
 Clementson v. Gandy, 411 
 
 Clermont v. Tasburgh, 575 
 
 Clifford V. Lewis, 500 
 
 V. Turrell, 583 
 
 Clifton V. Burt, 500 
 
 ■;;. Cockbum, 182 
 
 Clinan v. Cooke, 593, 600 
 
 Clinton v. Hooper, 227 
 
 Clive V. Carew, 123, 344, 353 
 
 Close V. C, 322 
 
 Clough V. Bond, 110, 204 
 
 V. Lambert, 52 
 
 Clowes V. Higginson, 600 
 
 V. Staff. Potteries Co., 660 
 
 Coal Consumers' Assoc, Re, 495 
 
 Coard v. Holderness, 525 
 
 Cochran's Estate, He, 332 
 
 Cochrane v. Willis, 181, 186 
 
 Cock V. Ravie, 687 
 
 V. Richards, 163 
 
 Cockbum v. Peel, 115 
 
 Cockcroft V. Black, 492 
 
 Cocker v. Be vis, 241 
 
 V. Quayle,lll, 123 
 
 Cockerell v. Cholmeley, 123, 195 
 
 Cocking V. Pratt, 1 55 
 
 Cocks V. Chandler, 673 
 
 Coffin V. C, 640, 645 
 V. Cooper, 610 
 
 Cogan V. Duffield, 43 
 
 V. Stephens, 435, 439 
 
 Cogent t: Gibson, 583 
 
 Colburn v. Simms, 672 
 
 Cole V. Gibbons, 149, 618 
 
 V. Gibson, 163 
 
 V. Wade, 39 
 
 V. White, 594 
 
 V. Willard, 459 
 
 Coleman r. Winch, 247, 248 
 
 Coles V. Trecothick, 91 
 
 Collier v. Jenkins, 614 
 
 Collins V. Archer, 291 
 
 V. C, 105, 270
 
 TABLE OF CASES. 
 
 XXV 
 
 Collins V. Lewis, 501 
 
 V. Stutely, 577 
 
 V. Wakeman, 434, 437 
 
 CoUingwood v. Row, 433 
 Collinson v. C, 74 
 Collis V. Robins, 498 
 CoUyer v. Finch, 288 
 Colman v. D. of St. Albans, 234 
 Colston V. Morris, 392 
 Combe v. Hughes, 48 
 Coming, Exp., 259 
 Comyns v. C, 218 
 Consterdine v. C, 112, 115 
 Conway v. Shrimpton, 225 
 Conyers v. Abergavenny, 685 
 Cood V. Pollard, 275 
 Cook V. Black, 309 
 
 V. Gregson, 486 
 
 V. Hutchinson, 67 
 
 Cooke V. Clayworth, 151, 575 
 
 V. C, 589 
 
 V. Wilton, 252 
 
 Cookes V. Hellier, 409 
 Cookson V. C, 443, 541 
 Coombe, Exp., 260 
 
 V. Stewart, 241 
 
 Coope V. Creswell, 299 
 
 V. Twynam, 329 
 
 Cooper V. C. (5 Ch. 203), 171 
 
 V. — (6 Ch. 21 ; 7 L. R. H. L. 
 
 53), 419 
 
 V. — (8 Ch. 813), 453 
 
 V. Day, 457 
 
 V. Evans, 323 
 
 V. Gostling, 428 
 
 V. Jenkins, 330 
 
 V. Laroche, 351 
 
 V. Martin, 194 
 
 V. Phibbs, 82, 179, 601 
 
 Coote V. Boyd, 456 
 
 V. Lowndes, 508 
 
 Cooth V. Jackson, 593, 598 
 Cope V. Wilmot, 402 
 Copis V. Middleton, 331 
 Coppin V. Fernyhough, 283 
 Corbett v. Brock, 157, 158 
 Cordingley v. Cheeseborough, 617 
 Cork (E. of) V. Russell, 223 
 Cory V. C, 182 
 
 Cosens v. Bognor &c. Co., 271 
 Cosser v. Radford, 62 
 Coster V. C, 378 
 Cotterell v. Purchase, 219 
 Cottesworth v. Stephens, 626 
 Cottington v. Fletcher, 37 
 Cotton, Re, 400 
 Couch V. Stratton, 465 
 Coulson V. Allison, 157 
 Court V. Buckland, 436 
 Coutts V. Ackworth, 158, 410 
 
 Couturier v. Hastie, 185 
 Coventry v. C, 504 
 Cowdry v. Day, 218 
 Cowell V. Edwards, 318 
 Cowley V. Harstonge, 425 
 
 V. Wellesley, 649 
 
 Cowman v. Harrison, 35 
 Cowper V. Clerk, 686 
 
 V. Mantell, 37 
 
 V. Scott, 409 
 
 Cox V. Coventon, 284 
 
 — V. Dolman, 245 
 Cox V. Hickman, 535 
 Crabtree v. Bramble, 442 
 Cradoch v. Owen, 430 
 Cradock v. Piper, 131, 513 
 Cragg V. Holme, 575 
 Cragoe v. Jones, 324 
 
 Crampton v. The Varna R. Co., 589 
 Crane v. Drake, 294 
 
 V. Price, 663 
 
 Cranmer's Case, 460 
 Cranstown v. Johnston, 12 
 Craven v. Brady, 162 
 Crawshay v. Maule, 540, 541 
 Craythorne v. Swinburne, 317, 329 
 Creuze v. Hunter, 388 
 
 Crickett r. Dolby, 399 
 Croft V. Day, 673 
 
 V. Golds mid, 211 
 
 V. Lumley, 210 
 
 V. Lyndsey, 628 
 
 Croker v. Martin, 61 
 
 Crompton v. Sale, 459 
 
 Crook V. Corp. of Seaford, 593, 595 
 
 Croome v. Lediard, 601 
 
 Crosby v. Church, 344 
 
 Cross V. Berridge, 601 
 
 Crosse v. Smith, 628 
 
 Crossley v. Oerby Gas Co., 667 
 
 V. Lightowler, 659 
 
 Croughton's Tr., Re, 353 
 
 Crowder v. Stewart, 493 
 
 Crowe V. Ballard, 92 
 
 Crowle V. Russell, 628 
 
 Croxton v. May, 379 
 
 Croydon Gas Co. v. Dickinson, 322 
 
 Cruttwell V. Lye, 586 
 
 CUDDEE V. RUTTER, 581 
 
 Culpepper v. Aston, 298 
 Gumming, Re, 368 
 Cummins ^\ Fletcher, 255 
 Cunninghame v. Moody, 429 
 Cunningham v. Thurlow, 169, 170 
 Cunynghame v. Anstruther, 170, 195 
 Curling v. May, 425 
 
 V. Townsend, 148 
 
 Currant v. Jago, 71 
 Curtis v. C, 388 
 V. Piatt, 665
 
 XXVI 
 
 TABLE OF CASES. 
 
 Curwyn v. Miller, 146 
 Ciistance v. Bradshaw, 543 
 Cuthbert i'. Baker, 614 
 Cutler, Re, 379 
 Cutts, Exp., 596 
 V. Thodey, 607 
 
 D'Abbadie v. Bizoin, 171 
 
 Dacre v. Patrickson, 507 
 
 Daglish, Exp., 232 
 
 Daking v. Whimper, 59, 61 
 
 Dalby v. Pullen, 611 
 
 Dale V. Sollet, 477 
 
 Dance v. Goldinghain, 633 
 
 Dane's Estate, In re, 85 
 
 Dangerfield r. Jones, 663 
 
 Daniels v. Davison, 282 
 
 Darbey v. Whitaker, 615 
 
 Darby r. D., 542 
 
 Darke v. Martyn, 109, 110 
 
 Darley v. D., 402 
 
 Damley v. L. C. & D. R., 601 
 
 Davenport v. Coltman, 438 
 
 V, Stafford, 108 
 
 Davey v. Prendergrass, 317 
 Davidson v. Macgregor, 324 
 
 V. Wood, 347 
 
 Davies v. Ashford, 443 
 
 V. Austin, 4(i0 
 
 r. Bowsher, 266 
 
 V. Bush, 500, 503 
 
 V. D., 188, 191 
 
 v. Goodhew, 426 
 
 r. Hodgson, 122 
 
 V. Humphreys, 329 
 
 V. Morgan, 521 
 
 T. Penton, 213 
 
 V. Sear, 283 
 
 1,. Thomas, 283 
 
 V. Topp, 499 
 
 • V. Wattier, 204 
 
 Daubeny v. Cockbum, 172, 173 
 Davis V. Dowding, 241 
 
 V. Marlborough (D. of), 676, 683 
 
 V. May, 236 
 
 V. Page, 421 
 
 V. Spurling, 118 
 
 V. Symonds, 189, 599, 600 
 
 V. Turvey, 560 
 
 V. Uphill, 173 
 
 V. WietUsbach, 562 
 
 Davy V. Barber, 612 
 Daw V. TeiTel, 260 
 Dawes v. Bagnall, 653 
 Dawson V. Clarke, 65, 121 
 
 V. D. (1 Atk. 1), 482 
 
 V. D. (8 Sim. 346), 219 
 
 V. D. (7 Ves. 173), 687 
 
 Dawson v. Kearton, 52 
 
 V. Paver, 655 
 
 V. Prince, 290, 343 
 
 Day V. Brownrigg, 661 
 
 V. Croft, 457 
 
 V. Luhke, 606 
 
 Dayreli v. Champneys, 643 
 Deacon v. Smith, 463 
 Dean v. Thwaite, 653 
 Deane v. Teste, 521 
 Dear, IJxp., 548 
 Dearie v. Hall, 309 
 De Bay v. Griffin, 268 
 De Beil v. Thomson, 164 
 Debeiiham v. Ox, 164 
 Debeze v. Mann, 447, 448, 454 
 De Bussche v. Alt, 96 
 Deere r. Cust, 652 
 
 v. Guest, 620 
 
 Deeth v. Hale, 442 
 Deg V. D., 413 
 
 De Gendre v. Kent, 522 
 
 De la Garde v. Lempriere, 367, 370 
 
 De Lancy, Re, 429 
 
 Delane v. D., 69 
 
 Delhasse, Exp., 537 
 
 De MandeviUe r. Crompton, 385 
 
 De Manneville v. De M., 389, 394, 633 
 
 Dent V. Bennett, 156, 157, 158 
 
 De Pothonier v. De Mattos, 305 
 
 Derbishire v. Home, 353 
 
 Dering v. E. of Winchelsea, 324, 327 
 
 Descrampes v. Tompkins, 399 
 
 Devaynes v. Noble, 121 
 
 V. Robinson, 300 
 
 Devese v. Pontet, 459, 464 
 De Visme, Re, 72 
 
 De Visme v. De V., 611 
 De Vitre r. Betts, 667 
 Devonsher r. Newenham, 686 
 Devoy v. D., 78 
 Dewar v. Maitland, 421 
 Dickens v. Lee, 669 
 Dickenson v. D., 297 
 Dillon V. Coppin, 51, 56 
 
 V. Parker, 410, 421 
 
 Dimech v. Corlett, 213 
 Dingwell v. Askew, 525 
 Dinham v. Bradford, 587 
 Dinn v. Grant, 277 
 Diplock V. Hammond, 308 
 Dipple V. Corles, 50, 53 
 DLsher v. D., 430 
 Ditton, Exp., 626 
 Dixon V. Gayfere, 442 
 
 V. Muckleston, 260 
 
 Docker v. Somes, 126, 470 
 Dodds V. Gronow, 566 
 Doe V. Manning, 59 
 
 Doe d. Jones v. Hughes, 299, 302
 
 TABLE OF CASES. 
 
 XXVll 
 
 Doe d. Leach v. Micklem, 1S8 
 
 Roby V. Maisy, 234 
 
 D'Oechsner v. Scott, 353 
 Doherty r. W. & L. Ry., 580 
 Doloret v. Rothschild, 605 
 Dolphin V. Aylward, 58 
 Donaldson v. D., 55 
 Doncaster v. D., 44 
 Donne v. Lewis, 499 
 Dor an v. Wiltshire, 298 
 Dormer v. D., 39S 
 
 V. Fortescue, 202, 203 
 
 Douglas V. Andrews, 400 
 
 V. Archbutt, 128 
 
 V. Cooksey, 514 
 
 V. D., 420 
 
 Dover v. Buck, 90 
 Dowell ('. Dew, 193 
 Dowling V. Betjemann, 584 
 Downe v. Morris, 223 
 Downes v. Grazebrook, 91, 93 
 
 V. Jennings, 384, 385 
 
 Downs V. Collius, 588 
 Downshire (M. of) v. Sandys, 640 
 Doyley v. Att.-Genl., 38 
 Drant v. Vause, 271, 433 
 Drew V. Corp., 613 
 
 V. Lockett, 330 
 
 V. Martin, 72, 74 
 
 Drinkwater v. Falconer, 521 
 
 V. Ratclitfe, 562, 563 
 
 Driver v. Ferrand, 498 
 Drosier v. Brereton, 112 
 Drover v. Beyer, 688 
 Drunimond v. Tracy, 24 
 Drury v. Smith, 530 
 Dryden v. Frost, 271 
 Drysdale v. Mace, 575 
 Dubost, Exp., 55, 445 
 Duckworth, Ee, 480 
 Duddell V. Simpson, 617 
 Duffield r. Elwes, 528, 529 
 Duffy r. Orr, 321 
 Dugdale v. D., 501 
 Duggan V. Kelly, 161 
 Du Hourmielin v. Sheldon, 429 
 Dummer v. Pitcher, 73 
 Dunbar v. Tredinnick, 279 
 Duncombe v. Greenacre, 369 
 Duncuft V. Albrecht, 585 
 Dundas v. Dutens, 60 
 Dunkley v. D., 377, 378 
 Dunnage v. White, 182 
 Dunne v. English, 96 
 Durell V. Pritchard, 577 
 Durham v. Friend, 524 
 
 (E. of) V. Legard, 617 
 
 V. Wharton, 448 
 
 Diu-sley v. Fitzhardinge, 690 
 Dyee v. Dyer, 65, 71, 427 
 
 Dyer v. Hargrave, 141 
 Dykes' Estate, Ee, 432 
 
 Eade v. E., 35 
 
 Eads V. Williams, 575 
 
 Earlom v. Saunders, 425 
 
 East V. Cook, 419 
 
 East I. Co. V. Boddam, 202 
 
 Eastwood V. Vinke, 459 
 
 Eaton V. Lyon, 210 
 
 Ebrand v. Dancer, 71 
 
 Echliff V. Baldwin, 633 
 
 Eccl. Com. r. N. E. R. Co., 653 
 
 Ede V. Knowles, 263 
 
 Edelsten v. E., 672 
 
 Edge r. Worthington, 260 
 
 Edgeberry r. Stephens, 663 
 
 Edmonds v. Peake, 109 
 
 Edmunds v. Low, 460 
 
 V. Townshend, 372 
 
 Edwards v. Aubrey, 347 
 
 r. Freeman, 203 
 
 V. Jones, 51, 53, 339, 528, 532 
 
 V. Lewis, 84 
 
 V. Meyrick, 98 
 
 V. M'Leay, 142 
 
 V. Pike, 35, 598 
 
 V. Warwick (C. of), 429, 442 
 
 Edwards-Wood v. Marjoribanks, 616 
 Eedes v. E., 378 
 Egerton v. Brownlow, 40, 165 
 Eland v. Baker, 172 
 
 V. E., 296, 300 
 
 Eley V. Norwood, 248 
 EHas V. Griffith, 638 
 Elibank v. Montolieu, 364 
 Ellard v. Llandaff, 142 
 
 Elliot v. Mekryman, 293, 294, 295, 
 
 298 
 Elliott V. Brown, 540 
 
 V. Cordell, 370 
 
 r. E., 75 
 
 V. Fisher, 429 
 
 — — V. N. E. R. Co., 655 
 EUice V. Roupell, 689 
 Ellison V. Airey, 128 
 Ellison v. E., 52, 54 
 
 V. El win, 382 
 
 EUis's Ti-ust, Ee, 353 
 
 Ellis V. Barker, 182 , 
 
 V. Lewis, 416 
 
 V. Selby, 28 
 
 V. Walker, 521 
 
 V. Wilmot, 325 
 
 Elsey V. Lutyens, 279 
 Elworthy v. Wickstead, 372 
 Emery, Exp., 266 
 Emmerson's Ca., 186, 586
 
 XXVIU 
 
 TABLE OF CASES. 
 
 Emmet v. E., 126 
 Emussr. Smith, 433, 511 
 England, Re, 389 
 
 V. Codrington, 219 
 
 V. Curling, 538, 588 
 
 V. Downs, 384 
 
 Ennor v. Barwell, 666 
 
 Eno V. Tatham, 507 
 
 Erlanger r. New Sombrero Co., 85 
 
 Errington v. Aynesley, 587 
 
 Erskine's Tr., Be, 373, 378 
 
 Esdaile v. Stephenson, 614 
 
 Esposito V. Bowden, 550 
 
 Essel V. Hayward, 550 
 
 Essex V. Atkins, 342 
 
 V. Baugh, 279 
 
 V. E., 542 
 
 Etches V. Lance, 686 
 Evans v. Bagshawe, 556 
 
 V. Bremridge, 323 
 
 v. Cockeram, 503 
 
 V. Llewellyn, 151, 158, 181 
 
 V. Massey, 402 
 
 Everitt r. E., 156 
 Ewer V. Corbet, 293, 294 
 Exhall Coal Co., Re, 127 
 Eykyn's Tr., Re, 72 
 Eyre v. Everett, 320 
 
 V. Hughes, 218, 237 
 
 V. McDowell, 257 
 
 Eyke v. C. of Shaftesbury, 387, 390, 
 
 391 
 Eyton V. Denbigh &c. Co., 271 
 
 Fairer v. Park, 459, 520 
 Fairfax v. Montague, 224 
 Fairthome v. Weston, 545 
 Falcke v. Gray, 575, 584 
 Fall V. Elkins, 556 
 Fane v. F., 143 
 Farebrother v. Welchman, 627 
 
 . V. Wodehouse, 332 
 
 Farley, Exp., 262 
 Farmer v. Curtis, 223 
 
 V. Dean, 91 
 
 V. Martin, 170, 173 
 
 Farquharson v. Cave, 529 
 
 V. Floyer, 501 
 
 Farrant v. Lovcl, 235, 642, 645 
 Farrar v. E. of Winterton, 271 
 Farrow v. Vansittart, 652 
 
 V. Wilson, 199 
 
 Fawcett v. Lowther, 220 
 Faulkner v. Daniel, 133 
 Fawkner v. Watts, 400 
 Fearon v. Desbrisay, 171 
 Featherstonehaugh v. Fenwick, 84, 133, 
 260, 549 
 
 Fell V. Brown, 223 
 Fellows V. Mitchell, 110, 119 
 Fells V. Read, 584 
 Feltham v. Clarke, 309 
 Fenner v. Taylor, 367 
 Fenton v. Browne, 139, 575 
 Fenwicke v. Clarke, 109 
 Fereday v. Wightwick, 541 
 Ferrand v. Corp. of Bradford, 659 
 Ferrars v. Cherry, 283 
 F"'erris v. Mullins, 258, 259 
 Fetherstone v. West, 122 
 Fettiplace v. Gorges, 336, 341 
 Fields. Brown, 649 
 
 V. Donoughmore, 63 
 
 V. Evans, 350 
 
 V. Lonsdale, 70 
 
 V. Megan, 308 
 
 V. Moore, 396 
 
 V. Sowle, 345 
 
 Fielding r. Preston, 500, 520 
 Finch V. ¥., 71, 73 
 
 V. Shaw, 291 
 
 Finden v. Stephens, 35 
 Fishmongers' Co. v. East India Co., 
 655 
 
 Fisk V. Att.-Gen., 30 
 
 Fitch V. Weber, 434 
 
 Fitzgerald v. Stewart, 308 
 
 Fitzgibbon v. Blake, 353 
 
 Flamang's Case, 650 
 
 Flamank, Exp., 428 
 
 Flanagan v. G. W. R., 94 
 
 Fleming v. Armstrong, 560 
 i: Buchanan, 502 
 
 Fletcher, Exp., 233 
 
 Fletcher v. Ashburner, 423 
 
 Fletcher v. V., 491 
 
 Flory V. Denny, 49 
 
 Flower r. Buller, 257 
 
 Foley V. Biirnell, 48 
 
 Forbes v. Adams, 441 
 
 V. Peacock, 296, 298 
 
 V. Ross, 99, 110, 126 
 
 V. Steven, 542 
 
 Ford V. Beech, 189 
 
 V. Fleming, 521 
 
 V. Olden, 93,^220 
 
 V. Peering, 679 
 
 V. White, 280 
 
 Fordyce v. Ford, 614 
 Forrester v. Cotton, 410 
 Forster v. Hale, 33 
 
 V. Patterson, 226 
 
 Fortescue v. Barnett, 53, 56 
 Foster v. Dennj% 391 
 
 V. F., 428, 437 
 
 and Lister, In re, 60 
 
 t:, Mackinnon, 184 
 
 Fothergill v. F., 194, 196
 
 TABLE OF CASES. 
 
 XXIX 
 
 Fowkes V. Pascoe, 67, 69, 447 
 Fowler's Trust, Be, 412 
 Fowler v. F. (4 De G. & J. 250), 189, 
 190 
 
 V. F. (3 P. Wins. 353), 460, 461 
 
 V. Garlike, 65 
 
 Fox V. Mackreth, 88, 142, 154 
 
 V. Scard, 212 
 
 V. Wright, 147 
 
 Frail v. Ellis, 264, 274 
 France v. F., 562 
 Francis, Re, 233 
 
 V. Brooking, 378 
 
 V. F., Ill 
 
 V. Wigzell, 346 
 
 Franco v. Bolton, 678 
 Franklin v. Green, 402 
 Franklyn v. Fern, 222 
 Franks v. BoUans, 91, 401 
 Fraser v. Wood, 611 
 Freeman v. Bishop, 146 
 
 V FairUe, 679 
 
 V. Lomas, 479 
 
 V. Pope, 57 
 
 Freemantle v. Bankes, 449 
 French v. Davison, 402 
 
 V. F., 61 
 
 V. Macale, 212, 213, 572 
 
 Frere v. Moore, 272 
 Friswell r. King, 267 
 Frost V. Brewer, 617 
 Fry V. Capper, 351 
 
 — V. Porter, 161 
 Fuller V. Bennett, 284 
 
 V. Knight, 111 
 
 Fynn, Re, 388, 392 
 Fytche v. F., 422 
 
 Gaffee's Settlement, 352 
 Gale V. Lindo, 164 
 Gallop, Exp., 70 
 Galton V. Hancock, 511 
 Gambart v. Bull, 670 
 Gardiner v. Fell, 418 
 Gardner v. G., 348 
 
 ■ V. Hatton, 524 
 
 V. Marshall, 378 
 
 V. Parker, 528 
 
 Garforth v. Bradley, 373 
 Garrard v. Dinorben, 491 
 
 V. Lauderdale, 62 
 
 Garret v. Wilkinson, 74 
 Garth v. Cotton, 642, 643, 644, 646, 
 648 
 
 V. Meyrick, 455 
 
 V. Townsend, 193 
 
 Garthshore v. Chalie, 464 
 Gascoigne v. Thwing, 68 
 Gaskell's Trusts, 353 
 
 Gaskell v. G., 555 
 Gaskin v. Balls, 651 
 Gedge v. Montrose, 612 
 Gee V. Pearse, 610 
 — V. Pritchard, 668 
 General Share Co. v. Chapman, 267 
 Gent V. Harris, 379 
 
 V. Harrison, 647 
 
 George, Re, 398 
 
 V. Milbanke, 57 
 
 Ghost V. Waller, 109 
 Giacometti v. Prodgers, 373, 378 
 Gibbs V. Harding, 589 
 Gibson, Re, 519, 524 
 
 V. G., 416 
 
 V. Goldsniid, 545 
 
 V. Ingo, 584 
 
 V. Smith, 635 
 
 Gibbens v. Eyden, 501 
 Gibbons v. Hills, 521 
 Giddings v. G., 85, 86 
 Gilbert v. Lewis, 340 
 
 V. Overton, 54 
 
 V. Smith, 564 
 
 Gilbertson v. G., 498 
 Gilchrist v. Cator, 377 
 
 V. Herbert, 594 
 
 Giles r. G., 192 
 Gillespie ?'. Hamilton, 549 
 Gillett V. Peppercorne, 97 
 Gillies V. Longiands, 443 
 Giffard v. Hart, 684 
 Gififord, £xp., 326 
 Gleaves v. Paine, 369 
 Glegg 2\ Rees, 63 
 Glendinning, Exp., 322 
 Glenorcht v. Bosville, 39 
 Glyn, Exp., 261 
 Glynn v. B. of England, 203 
 Goddard v. Snow, 384 
 Godfrey r. G., 34 
 
 V. Harben, 346 
 
 V. Littel, 569 
 
 V. Watson, 247 
 
 Godin V. Lond. Ass. Co., 266 
 Goldicutt V. Townsend, 594 
 Goldsmith v. Russell, 380 
 Goldsworthy, Re, 389 
 Goleborn v. Alcock, 288 
 Gompertz v. Pooley, 624 
 Good, Exp., 266 
 Goodenough v. G., 557 
 
 V. Tremamondo, 105 
 
 Goodlad v. Burnet, 518 
 Goodman v. ' Whitcomb, 551 
 Goodright v. Hodges, 69 
 Goodwin v. Waghorn, 259 
 Goodwyn v. G., 197 
 Gordon v. Calvert, 324, 327 
 V. Cheltenham R. Co., 653
 
 XXX 
 
 TABLE OF CASES, 
 
 Gordon r. G., 143, 182 
 Gore, Exp., 94 
 
 r. Knight, 341 
 
 Goring r. Nash, 676 
 Gosling V. Carter, 299 
 
 i\ War burton, 416 
 
 Gould V. Eobertson, 63 
 
 Goulton r. London &c. Co., 211 
 
 Gower r. Main waring, 38 
 
 Gowland v. De Faria, 92, 146, 147, 149 
 
 Grace, Exp., 84 
 
 V. Newman, 667 
 
 Graham, Re, 393 
 
 V. Londonderry, 340, 360, 361 
 
 Granard v. Dunkin, 669 
 Grant v. G. (34 Beav.), 50, 340, 341, 
 360 
 
 V. — (3 Russ. 598), 687 
 
 Grave's Case, 670 
 Graves Minor, Re, 433 
 
 V. Ashford, 670 
 
 V. Dolphin, 37 
 
 Gray v. Johnston, 294 
 
 Grayburn r. Clarkson, 108 
 
 Great Luxembourg R. Co. r. Magnay, 
 
 133 
 Great W. R. Co. v. Cripps, 601 
 
 V. Rushout, 631 
 
 Greedy v. Lavender, 376 
 Green v. Bridges, 208 
 
 r. Britten, 339 
 
 r. Fanner, 266 
 
 V. G., 409 
 
 V. Otte, 378 
 
 V. Smith, 574 
 
 V. Symonds, 524 
 
 V. Wynn, 325 
 
 Greene v. Cole, 641 
 
 V. G., 498 
 
 Greenhill v. G., 429 
 Greening r. Beckford, 311 
 Greenslade v. Dane, 282 
 Greenway, Exp., 201, 202 
 Greenwell r. G., 400 
 Gregory v. G., 90, 100 
 V. Mighell, 574 
 
 V. Wilson, 210 
 
 Gretton r. Haward, 410 
 Grey v. G., 73, 74 
 
 Grierson r. Cheshire Lines Com., 580 
 Grieveson v. Kirsopp, 426 
 Griffies r. G., 560 
 Griffin v. De Veulle, 156 
 
 r. G., 81, 84 
 
 Griffith V. Ricketts, 62, 431, 439 
 Grigby v. Cox, 342 
 Grimstone, Exp., 427 
 Grissell's Ca., 480 
 Grissell r. Swinhoe, 419 
 Groom v. Booth, 297 
 
 Grosvenor v. Sherratt, 98 
 Grove v. Comyn, 562 
 Groves v. G., 69, 70 
 
 V. Perkins, 367 
 
 Gitigeon V. Gerrard, 224 
 Guest V. Homfray, 609 
 
 r. Smythe, 97 
 
 Gurnell v. Gardner, 308 
 Guy V. Sharp, 457 
 Gwynne, Exp., 270 
 V. Heaton, 145 
 
 Hack ■;;. Leonard, 210 
 Haddon r. Fladgate, 340 
 Hadow V. H., 397 
 Haigh V. Kaye, 37 
 Haines v. Taylor, 635, 655 
 Hale V. Webb, 203, 480 
 Hales V. Cox, 515 
 Halfhide v. Fenning, 589 
 Hall V. Barrows, 672 
 
 — V. H. (3 Atk. 721), 391 
 
 — V. H. (12 Bei.v. 414), 545, 549, 552 
 
 — V. H. (1 R & M. 481), 159 
 
 — V. Hallett, 93, 100 
 
 — V. Hardy, 589 
 
 — V. Hill, 416, 453, 461 
 
 — V. Hutchons, 325 
 
 — V. Laver, 267, 268 
 
 — V. Palmer, 52 
 
 — V. Thynne, 163 
 
 — V. Warren, 579 
 
 — V. Waterhouse, 342 
 Halsey v. Grant, 614 
 Hamilton v. Mohun, 163 
 
 V. Royse, 284 
 
 V. Watson, 319 
 
 Hammersley r. De Biel, 594 
 Hampton v. Hodges, 637 
 
 V. Hohnan, 49 
 
 Hanbury v. Kirkland, 119 
 
 V. Spooner, 128 
 
 Han by v. Roberts, 511, 512 
 Hancox v. Abbey, 503 
 Hankey v. Vernon, 256 
 Hansard v. Hardy, 224 
 
 V. Robinson, 200, 203 
 
 Hansen v. Miller, 380 
 Hansom v. Allen, 112 
 Hanson, Exp., 274 
 
 V. Gardiner, 635, 650, 685 
 
 V. Keating, 369 
 
 V. Reece, 267 
 
 V. Stubbs, 493 
 
 Harbidge v. Wogan, 191 
 Harbin v. Darby, 128, 129 
 Harcourt r. Knowel, 288 
 Harding, In the goods of, 335, 382
 
 TABLE OF CASES. 
 
 XXXI 
 
 Harding v. H., 508 
 
 V. Glyn, 39 
 
 V. Met. R. Co., 432 
 
 Hardingham v. Thomas, 445 
 Hardwicke v. Wright, 330 
 Hardy, £xp., 281, 432 
 
 V. Martin, 208, 212 
 
 V. Met. &c. Co., 116 
 
 Harewood r. Child, 498 
 Harford v. Carpenter, 260 
 
 V. Purrier, 612 
 
 Hargreaves r. Rothwell, 284 
 Harland v. Trigg, 35 
 Harlock r. Ashberry, 244 
 Harmer v. Priestley, 224 
 Harmood v. Oglander, 511 
 Harms v. Parsons, 165 
 Harnett v. Yeilding, 573, 616 
 Harrington v. Du Chastel, 165 
 
 V. H., 48 
 
 V. Wheeler, 610 
 
 Harris, Exp., 548 
 
 V. H, 112 
 
 V. Fawcett, 327 
 
 Harrison, Uxp. (18 Ch. D.), 240 
 
 V. Barton, 77, 78 
 
 V. Forth, 280 
 
 V. Guest, 99, 145 
 
 r. Gurney, 629 
 
 V. H. (2 H. & M. 237), 130 
 
 V. H. (1 Keen, 765), 416 
 
 V. H. (1 R. & M. 71), 271 
 
 V. Nettleship, 627 
 
 V. Tennant, 550 
 
 Harrop's Est., Re, 429 
 Harrop r. Howard, 350 
 Hart V. Herwig, 586 
 Hartford r. Power, 339, 340 
 Hartley v. Ostler, 455 
 Hartopp V. H., 448 
 Hartridge, Exp., 590 
 Hartwell r. H., 165 
 Harvey's Estate, He, 346 
 Harvey v. Aston, 161, 162 
 
 V. Jebbutt, 247 
 
 V. Met. R. Co., 580 
 
 V. Mount, 158 
 
 Haselfoot's Estate, hi re, 248 
 Haslewood v. Pope, 498, 511 
 Hatch V. H., 156 
 Hatchell v. Eggleso, 369 
 Hatchett v. Pattle, 204 
 Hawes v. Wyatt, 151, 158 
 Hawkes v. Hubback, 352 
 Hawkins, Exp., 432 
 
 V. Day, 203 
 
 V. Holmes, 593 
 
 V. Maltby, 586 
 
 Hawksworth v. H., 394 
 Hawthorn v. Shedden, 502 
 
 Hay V. Palmer, 481 
 Haycraft v. Creasy, 139 
 Hayes v. Caryll, 610 
 Hayman, Exp., 549 
 Haynes v. H., 432 
 
 V. Mico, 464 
 
 Hays, Exp., 403 
 Hay ward v. Pile, 87 
 Haywood v. Cope, 574, 575 
 Head v. H., 377 
 
 Heams v. Bance, 248 
 Heap r. Tonge, 60 
 Heard v. Pilley, 68 
 Hearle v. Greenbank, 418 
 Heath v. Crealock, 291 
 
 V. Lewis, 162 
 
 V. Unwin, 665 
 
 Heathcote v. N. S. R. Co., 631 
 Heaton v. Marriott, 119 
 Hele V. Bexley, 234 
 Henderson v. Mclver, 128 
 Henley v. , 98 
 
 and Co., Re, 489 
 
 Hensman v. Fryer, 501 
 Hep worth v. H., 73 
 
 V. Hill, 507 
 
 Herbert's Ca., 395 
 Hercy v. Birch, 538 
 Hermann v. Hodges, 580 
 Hervey v. H., 196 
 
 V. Smith, 283 
 
 Hewison v. Guthrie, 266 
 
 V. Negus, 60 
 
 Hewitt V. Kaye, 529 
 
 V. Loosemore, 273, 281 
 
 V. Wright, 431, 439 
 
 Heysham v. H., 391 
 Hibbert v. Jenkins, 126 
 Hickley v. H., 91 
 
 Hicks V. Hastings, 570 
 Hide r. Haywood, 126 
 Higginbotham v. Hawkins, 650 
 Higinbotham v. Holme, 37 
 Higgins V. Frankis, 255 
 Hill V. Barclay, 210, 211 
 
 V. Boyle, 314 
 
 V. Buckley, 615 
 
 V. Caillovel. 312 
 
 V. Cock, 434 
 
 V. Edmondis, 369 
 
 V. Gomme, 392 
 
 V. Gray, 141 
 
 V. H., 83 
 
 V. Simpson, 294 
 
 V. Thompson, 665 
 
 V. Turner, 633 
 
 V. Wilson, 50 
 
 V. Wormsley, 507 
 
 Hillmann, Exp., 58 
 Hillman v. Mayhew, 578
 
 XXXll 
 
 TABLE OF CASES. 
 
 Hills V. H., f;30 
 
 r. Rowhmd, 211 
 
 Hilton r. Barrow, 676 
 
 r. Granville, 634, 635 
 
 r. Scarborough, 686 
 
 V. Woods, 315 
 
 HiNCHCLIFFE V. H., 450 
 
 Hinchinbroke r. Seymour, 170 
 Hinde v. Blake, 306 
 Hindson v. Weatherill, 159 
 Hinton r. Priske, 521 
 Hinves v. H., 103 
 Hirst V. Tolson, 480 
 Hitchman v. Stewart, 318 
 Hobbs V. Hull, 589 
 
 V. Norton, 167 
 
 Hobday v. Peters, 98 
 Hobson r. Blackburn, 30 
 
 V. Ferraby, 396 
 
 r. Sherwood, 555 
 
 r. Trevor, 306 
 
 Hockley v. Bantouk, 260 
 
 Hodgens v. H., 347, 367 
 
 Hodge's Sett., Jte, 393 
 
 Hodges r. Peacock, 456 
 
 Hodgkinson v. The National &c. Co., 94 
 
 Hodgson V. Dean, 286 
 
 r. H., 342 
 
 r. Shaw, 331 
 
 Hodkinson v. Qninn, 299, 300 
 Hogg V. Jones, 48 
 
 V. Kirby, 662 
 
 Hoggart r. Scott, 607 
 Hoghton V. H., 158 
 Holden V. Webber, 96 
 Holderness v. Lamport, 70 
 Holdich V. H., 416 
 Holdsworth v. Macrae, 670 
 Hole r. Thomas, 645 
 Holford r. Wood, 455 
 Hollier v. Burne, 87 
 HoUoway r. Radcliffe, 442 
 Holmes r. Dring, 110 
 
 r. H., 4,50 
 
 V. Kidd, 312 
 
 V. Penny, 57 
 
 Holms V. Coghill, 502 
 Holroyd v. Marshall, 306 
 Holt, Bxp., 122 
 
 Holt V. Dewell, 286 
 
 V. Everall, 356 
 
 V. H., 86 
 
 Homfray v. Fothergill, 545 
 Honywood v. Forster, 411 
 
 V. H., 637, 648 
 
 Hood V. Claphain, 107 
 
 V. Easton, 238 
 
 r. H., 272, 507 
 
 Hooman, Etp., 233 
 Hooper r. Smart, 312, 616 
 
 Hope V. Carnegie, 626 
 
 V. H., 387 
 
 Hopgood V. Parkin, 112 
 Hopkins, Exp., 387 
 Hopkinson v. Forster, 308 
 
 V. Roe, 128 
 
 Hopton V. Dryden, 492 
 Hora V. H., 397 
 Horn V. H., 295 
 
 Horncastle v. Charlesworth, 557 
 Horniblow v. Shiiley, 614 
 Hornsby r. Lee, 381 
 Horwood V. Griffith, 523 
 
 V. West, 35 
 
 Hotchkin, Exp., 255 
 
 Hotten V. Arthur, 667 
 
 Houlton's Ca., 552 
 
 Hovey v. Blakeman, 117, 121, 350 
 
 How V. Wheldon, 153 
 
 Howard v. Digby, 359, 360 
 
 Howard v. Harris, 218, 223 
 
 Howarth, Ee, 399 
 
 Howe v. Ld. Dartmouth, 103, 107, 520 
 
 ?'. McKeman, 667 
 
 Howel V. H., 43 
 Howell V. Coupland, 199 
 
 V. Price, 215 
 
 Howman v. Corie, 381 
 Howorth V. Dewell, 34 
 Hubbard v. Alexander, 456 
 Hudson V. Bartram, 606 
 
 V. Carmichael, 227 
 
 V. Temple, 605, 606 
 
 Hue V. Richards, 551 
 Hughes V. Empson, 108 
 
 V. Howard, 85, 86 
 
 V. Jones, 616 
 
 V. Kearney, 270 
 
 V. Met. R. Co., 210 
 
 V. Morris, 586, 593 
 
 V. Williams (3 Mac. & G. 690), 
 
 515 
 
 V. Williams (12 Ves. 493), 237, 
 
 238 
 HuGUENiN V. Baseley, 155, 157 
 Huish's Charity, Ee, 171 
 Hull V. Christian, 128 
 Hulme V. Coles, 321 
 HuLME V. Tenant, 336, 339, 345 
 Hulse, Exp., 207 
 Humberston v. H., 49 
 Hume V. Edwards, 521 
 Humphrey v. Olver, 171 
 Humphreys v. Harrison, 642 
 Hungerford v. Clay, 234 
 Hunt V. Elwes, 292 
 
 V. Peake, 653, 653 
 
 V. Rousmaniere, 181 
 
 Hunter v. Atkins, 158 
 
 V. Daniel, 31 4
 
 TABLE OF CASES. 
 
 I 
 
 Hunter v. Nockolds, 247 
 
 V. Walters, 185 
 
 Hurry v. H., 566 
 Hurst V. Beach, 456, 457 
 
 V. H., 241 
 
 Hutchinson v. Tenant, 34 
 Hyde v. Dallaway, 226 
 Hylton V. H., 98, 156 
 
 Ibbotson r. Rhodes, 167 
 
 Ilchester, Exp., 391 
 
 Imbert, Exp., 47 i 
 
 Imperial &c. Assoc, v. Coleman, 94 
 
 Inchiquin v. French, 497 
 
 Incledon v. Northcote, 399 
 
 Ingle r. Partridge, 119 
 
 V. Richards, 90 
 
 Inglefield r. Coghlan, 333, 339 
 Inman r. Wearing, 240 
 Innes v. Sayer, 30, 196 
 International &c. Soc, Re, 514 
 lonides v. Pender, 143 
 Irnham r. Child, 180, 601 
 Irons V. Smallpiece, 49 
 Irvine v. Sullivan, 65 
 Irving V. Young, 482 
 Isaac r. Wall, 82 
 Iven V. Elwes, 490 
 Ivie V. I., 679 
 
 Jackman r. Mitchell, 144 
 Jackson, Exp., 240 
 Jackson v. Butler, 584 
 
 V. Cator, 635 
 
 r. J., 541 
 
 V. James, 228 
 
 V. D. of Newcastle, 656 
 
 Jacob V. Lucas, 107 
 Jacobs, Exp., 325 
 Jacomb v. Knight, 620 
 Jacques v. Chambers, 526 
 James, Exp., 90, 93 
 James v. Dean, 81 
 
 V. J. (13 Eq. 425), 673 
 
 V. J. (16 Eq. 153), 264 
 
 V. Lichfield, 617 
 
 V. May, 127 
 
 Jay, Exp., 233 
 Jeans v. Cooke, 75 
 Jeffereys v. Small, 540 
 Jeffery's Tr., Re, 523 
 Jefferys v. Boosey, 667 
 
 r. J., 56, 573 
 
 Jeffreys v. Connor, 106 
 
 Jeffrys v. Vanteswarstwarth, 394 
 
 Jeffs r. Day, 624 
 
 Jegon V. Vivian, 653 
 Jenkins v. Hiles, 298 
 
 V. Robertson, 321 
 
 Jenkinson v. Harcourt, 504 
 
 V. Pepys, 599 
 
 Jenner v. Morris, 679 
 
 V. Tracy, 224 
 
 Jennings v. Baddeley, 551 
 
 V. Broughton, 139, 141 
 
 Jerrard v. Saunders, 290 
 
 Jersey v. Briton &c. Co., 271 
 
 Jervis r. Wolferstan, 121, 492 
 
 Jervois v. Duke, 161 
 
 Jervoise v. J., 360 
 
 Jessop V. Watson, 435 
 
 Jesus Coll. V. Bloom, 646 
 
 Jewson ?'. Moulson, 363, 378 
 
 Job V. J., 628 
 
 Johnson v. Ball, 53 
 
 V. Gallagher, 345 
 
 V. J. (2 Coll. 441), 104 
 
 V. J. (1 J. & W. 472), 366 
 
 — V. Kennett, 295, 296, 297 
 
 V. Kershaw, 63 
 
 — V. Legard, 60 
 
 r. Medlicott, 151 
 
 V. Newton, 109 
 
 r. S. & B. R. Co., 588 
 
 Johnston v. Lloyd, 111 
 r. Renton, 677 
 
 Johnstone r. Baber, 558 
 V. Beattie, 395 
 
 JoUand i: Stainbridge, 280 
 
 Jones, Exp., 152 
 
 Jones V. Alephsin, 687 
 
 V. Badley, 597 
 
 V. Chennell, 111 
 
 V. Foxall, 126 
 
 V. Geddes, 630 
 
 V. Gibbons, 309 
 
 V. Green (5 Eq. 555), 525 
 
 (3 Y. & J. 298), 213 
 
 V. Higgins, 344 
 
 V. Hoy, 550 
 
 V. J. (1 Q. B. D. 279), 161, 162 
 
 V. J. (3 Sim. 633), 311 
 
 V. J. (12 Ves. 186), 581 
 
 V. Lewis (3 De G. & S. 471), 111 
 
 V. (2 Ves. .sr. 240), 108, 204 
 
 V. Lloyd, 550 
 
 V. Meredith, 223 
 
 V. Mitchell, 437 
 
 V. Powles, 288 
 
 V. Price, 609 
 
 V. Sampson, 687 
 
 V. Selby, 529 
 
 V. Smith (1 Ha. 43), 283, 284 
 
 (2 Ves. jr. 372), 229, 
 247, 255 
 V. Starkey, 308
 
 XXXIV 
 
 TABT.E OF CASES. 
 
 Jones V. Tapling, 657 
 
 V. Williams, 258 
 
 Jope r. Morshead, 556 
 Jordan v. Money, 595 
 Joy V. Campbell, 118, 120 
 Joyce V. Do Moleyns, 290 
 Joynes v. Statham, 597, 600 
 Jupe V. Pratt, 663 
 
 Kate, Re, 393 
 
 V. Moore, 679 
 
 Keane, Re, 853 
 Keat V. Allen, 163 
 Keating v. Sparrow, 211 
 Keble, Hxp., 399 
 
 V. Thompson, 122 
 
 Keech v. Hall, 234 
 Keech v. Sandfoed, 80 
 Kekewich v. Manning, 55 
 Kelk V. Pearson, 656 
 Kelland r. Fulford, 428, 437 
 Kelly V. Hooper, 668 
 
 V. K., 81 
 
 V. Morris, 671 
 
 V. Wyman, 672 
 
 Kemble i\ Farren, 209 
 Kemp V. L. & B. R. Co,, 652 
 
 V. Prior, 677 
 
 V. Westbrook, 229 
 
 Kendall, Exp., 514 
 
 V. Granger, 27 
 
 V. Hamilton, 547 
 
 Kennedy, £xp., 548 
 
 V. Green, 184, 282, 285 
 
 V. Panama, &c. Mail Co., 
 
 Kennell v. Abbott, 1S2 
 Kenney ?'. Browne, 100 
 
 V. Wexham, 583 
 
 Kensington, Exp., 262, 263 
 
 V. Dollond, 339 
 
 Kerr v. Corp. of Preston, 632 
 Kerr's Policy, Re, 262 
 Kestril, The, 239 
 Kettleby v. Atwood, 430 
 Key V. Bradshaw, 163 
 
 V. Flint, 478 
 
 Keys V. Williams, 260 
 Kidney ?'. Coussmaker, 413, 436 
 Kildare v. Eustace, 12 
 Killick, Exp., 340 
 
 V. Flexney, 92 
 
 Kilpatrick ?-. K.,"388 
 Kimber i'. Barber, 96 
 Kincaid's Tr., Re, 378 
 Kinnoul v. Money, 227 
 King I'. Bromley, 220 
 
 (The) r. Coggan, 130 
 
 V. Cotton, 384 
 
 185 
 
 King V. Denison, 67 
 
 V. Hamlet, 148 
 
 V. K., 415 
 
 V. Smith, 235, 642 
 
 V. Voss, 355, 356 
 
 V. Wilson, 607, 616 
 
 Kingdon v. Bridges, 72 
 
 V. Castleman, 108 
 
 Kinsman v. Rouse, 226 
 Kingston, Exp., 479 
 Kirby v. Potter, 518, 521, 526 
 Kirk V. Clark, 60 
 
 V. Eddowes, 449, 454, 461 
 
 Kirkman r. Booth, 102, 131 
 
 V. Miles, 442 
 
 Knight V. Bowyer, 283 
 
 V. K, 34, 373 
 
 V. Marjoribanks, 91, 93 
 
 Knott, Exp., 250 
 
 V. Cottee, 115, 391 
 
 Knox V. Gye, 85, 133 
 Kronheim v. Johnson, 33 
 
 Lacey, Exp., 88, 90, 91, 94 
 
 V. Hill, 417, 548 
 
 Lacon v. Liflfen, 258 
 Lacy V. Ingle, 247 
 Lake v. Brutton, 330 
 Lamb v. L., 420 
 
 r. Milnes, 370 
 
 Lambarde v. Older, 479 
 Lambe v. Eames, 34 
 Lambert v. Thwaites, 38 
 Lamport's Case, 305 
 Lamplugh v. L., 73, 75 
 Lance v. Norman, 384 
 Lancefield v. Iggulden, 501 
 Lander v. Weston, 111 
 Lane, Re, 403 
 
 V. Dighton, 69 
 
 V. Jackson, 286 
 
 Lanesborough v. Jones, 478 
 Langdale's Est,, Re, 562 
 Langdale t\ Briggs, 518 
 Langford v. Burnett, 217 
 
 V. Gascoyne, 117 
 
 V. Pitt, 610 
 
 Langham v. Sanford, 65 
 Langslow v. L., 415 
 Lang.staffe r. Fenwick, 218 
 Langston, Exp., 262 
 
 V. Ollivant, 111 
 
 Lanoy v. D. of Athol, 400, 515 
 Lansdown v. L., 178 
 Lascelles v. Butt, 568 
 
 Latham v. Chartered Bk. of India, 321 
 Law V. E, I, Co,, 330 
 Law.ler r. L., 327
 
 TABLE OF CASES. 
 
 XXXV 
 
 I 
 
 Lawes v. Bennett, 432 
 Lawrence v. L., 416 
 Lawrenson r. Butler, 194, 616 
 Laweon v. Laude, 5!>9 
 
 V. L., 505, 528 
 
 r. Stitch, 520 
 
 Leake v. L., 687 
 
 Leary v. Shout, 551 
 
 Leather Cloth Co. v. Amei'ican &c. Co., 
 
 673 
 Leavers v. Clayton, 28, 65 
 Lechmere v. Brasier, 611 
 Lechmere v. E. of Carlisle, 443, 462 
 Lee r. Alston, 647 
 
 — V. Brown, 402 
 
 — V. D'Aranda, 464 
 
 — V. Fernie, 172 
 
 — V. Haley, 673 
 
 — V. Jones, 320 
 
 — V. L., 524 
 
 — V. Nuttall, 492, 495 
 
 — V. Prieaux, 339 
 Leech v. Schweder, 656 
 Leeds (D. of) v. Amherst, 650 
 
 V. Barnard iston, 395 
 
 (D. of) r. Powell, 568 
 
 Lees V. Nuttall, 96 
 
 V. Patterson, 688 
 
 Legal V. Miller, 600 
 Legg v. Goldwire, 190 
 Leggatt V. Met. Ry. Co., 611 
 Lehmann v. McArthur, 609 
 Leigh V. Barry, 120 
 
 r. Macaulay, 684 
 
 Leighton v. L., 448, 686 
 Leith V. Irvine, 133 
 Lench v. L., 68, 69, 464 
 Le Neve v. Le N., 279 
 Leonard r. Sussex, 46 
 Leslie v. Baillie, 179 
 
 V. Crommelin, 616 
 
 Lester r. Foxcroft, 592 
 Lethbridge v. Thurlow, 453 
 Lethem r. Hall, 394 
 Lett V. Morris, 308 
 Lewers v. Shaftesbury, 576 
 Lewis, Exp., 233 
 
 V. Fullarton, 671, 672 
 
 V. Hillman, 96 
 
 i: Hopkins, 58 
 
 V. Jones, 317 
 
 r. L. (1 Co.x, 162), 402 
 
 r. L. (13 Eq. 219), 509 
 
 V. Matthews, 340 
 
 V. Nangle, 222, 227 
 
 r. Rees, 59 
 
 Life Ass. of Scotland r. Siddal, 92, 368 
 Lightfoot r. Heron, 575, 601 
 Lillia V. Airey, 345 
 Lincoln ?'. Windsor, 131 
 
 Lincoln v. Wright, 117, 597 
 Linden, Exp., 270 
 Lindsay v. Gibbs, 306 
 Lingen v. Simpson, 545 
 
 V. Sowray, 441, 443 
 
 Lister r. Hodgson, 50 
 Littlehales v. Gascoyne, 116 
 Liverpool &c. Co. v. Hunter, 630 
 Livesey v. Harding, 311, 402 
 Llewellyn r. Cobbold, 384 
 
 V. Mackworth, 409 
 
 Lloyd r. Atwood, 251, 259 
 
 V. Clark, 629 
 
 V. Cocker, 402 
 
 V. Collett, 609 
 
 V. L. (2 My. & Cr. 192), 602 
 
 V. —(2 Sim. N. S. 255), 162 
 
 V. Mason, 267, 367 
 
 V. Pughe, 75 
 
 V. SpiUet, 33, 65 
 
 V. Wait, 222 
 
 V. Williams, 367 
 
 Lloyds V. Harper, 326 
 Llynvi Co. r. Brogden, 653 
 Lock r. Venables, 522 
 Lockhart r. Hardy, 242, 503 
 Lodge r. Pritchard, 548 
 Loffus V. Maw, 164 
 Lugan V. Fairlie, 394 
 Lomax r. L., 400 
 Londesborough r. Somerville, 526 
 London Chartered Bank ?'. Lempriere, 
 195, 34.3, 346 
 
 V. Wliite, 266 
 
 London & B. R. Co. v. Winter, 602 
 
 & N. W. R. r. L. & Y. R., 651 
 
 & S. W. R. V. Black more, 189 
 
 Long, Ee, 402 
 
 V. Fletcher, 614 
 
 V. L., 396 
 
 r. Short, 522 
 
 Longbottom v. Berry, 261 
 Limgman r. Winchester, 668 
 Longmate v. Ledger, 99, 151 
 Lord V. Godfrey, 104 
 
 V. Jeffkins, 146 
 
 V. L., 526 
 
 Lorimer r. L., 559 
 Loscombe v. Russell, 545 
 Lovegrove, Exp., 127 
 Loveridge v. Cooper, 309 
 Lovett V. L., 682 
 Lowndes v. Bettle, 644, 651 
 
 V. Norton, 637 
 
 Lows V. Telford, 239 
 Lowson V. Cnpeland, 102 
 Lowther v. C. of Andover, 611 
 
 V. Gordon, 279 
 
 V. L., 96 
 
 Lowthian v. Hasel, 252 
 
 c2
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Loyd, Exp., 261 
 
 V. Mansel, 242 
 
 V. Reid, 73 
 
 V. Spillet, 33, 65 
 
 Luard's Case, 539 
 
 Lucas r. Dorrien, 260, 266 
 
 r. L., 361 
 
 Lumb V. Milnes, 339 
 Lumley r. Wagner, 590, 619 
 Lush's Trust, lie, 376 
 Lushington v. Boldero, 640, 648 
 Lyon V. Home. 157 
 
 V. Tweddle, 551 
 
 Lyons, i?e, 393 
 
 V. Blenkin, 392 
 
 Lyster v. Dollond, 540 
 Lyttleton r. Cross, 491 
 
 Maber v. Hobbs, 385 
 Macaulay v. Philips, 363 
 Macbryde v. Weeks, 605 
 Macclesfield v. Fitton, 221 
 Mackay v. Douglas, 57 
 Mackenzie, Exp., 311 
 
 V. Johnston, 470 
 
 V. Robinson, 235 
 
 Mackinnon v. Stewart, 63 
 Mackrell v. Hunt, 612 
 Mackreth v. Marlar, 608 
 Mackketh v. Symmons, 269, 275, 279 
 Maclaren v. Stainton, 522 
 Macleod v. Annesley, 112 
 Macnamara v. Carey, 108 
 
 V. Jones, 128 
 
 Macrae v. Holdswoi-th, 672 
 Maddison v. Chapman, 411 
 Maddy r. Hale, 87 
 Madeley v. Booth, 614 
 Magennis r. Fallon, 607, 612 
 Mahon v. Stanhope, 640 
 Mainwaring ?•. Newman, 546 
 Maitland v. Irving, 158, 320 
 Major r. Lansley, 342 
 Malcolm v. O'Callaghan, 127, 161 
 Maiden v. Merrill, 201 
 Mallock V. Galton, 241 
 Manby v. Bewicke, 150 
 Manchester & L. R. Co. v. G-. N. R. 
 Co., 652 
 
 & S. R. Co., Re, 432 
 
 Mann v. Fuller, 457 
 Manning, Exp., 612 
 
 ■ V. Gill, 55 
 
 V. Pureell, 521 
 
 Manningford v. Toleman, 262 
 Manton v. Parker, 664 
 March v. Russell, 121 
 
 Mare r. Sandford, 144 
 
 Margetts v. Barringer, 339 
 
 Marker v. M., 653 
 
 Marlborough (D. of) v. St. John, 637 
 
 Marples v. Bainbridge, 161 
 
 Marriott v. The Anchor &c. Co., 239 
 
 Marryat v. Townly, 48 
 
 Marsack r. Lyster, 371 
 
 Marsden, ^e, 171 
 
 V. Kent, 102 
 
 Marseilles &c. Co., In re, 285 
 Mar.sh v. Hunter, 115 
 Marsh v. Lee, 245 
 
 Mar.sh v. Wells, 641 
 Marshal v. Crutwell, 76 
 Marshall r. Colman, 544 
 
 V. Holloway, 129, 399 
 
 V. Shrewsbury, 243 
 
 V. Watson, 545 
 
 Marson v. L. C. & D. R., 580 
 Martin, Exp., 262 
 
 V. Drink water, 456 
 
 V. Nutkin, 590 
 
 V. Py croft, 602 
 
 V. Reid, 229 
 
 Mary Smith, Re, 427 
 Mason r. Bogg, 494 
 
 V. Morley, 110 
 
 Massam v. Thorley's &c. Co., 673 
 
 Massey v. Parker, 339 
 
 Massy r. Rowen, 338, 339, 340 
 
 Master v. Fuller, 345 
 
 Masters v. M., 456 
 
 Mathew v. Brise, 391 
 
 Mathews r. M., 460 
 
 Mathias v. M., 464 
 
 Matthew v. Bowler, 270 
 
 Matthewman's Case, 345 
 
 Matthews v. Bagshawe, 133 
 
 V. Baxter, 151 
 
 V. Cartwright, 247 
 
 — V. Wallwyn, 221, 483 
 
 Matthison v. Clarke, 132 
 
 Maugham r. Mason, 435 
 
 Maunder v. Lloyd, 12 
 
 Maunsell v. White, 595 
 
 Mawman v. Tegg, 665, 671 
 
 Ma.wson v. Fletcher, 617 
 
 Maxfield v. Burton, 249, 281 
 
 Maxwell v. Montacute, 219 
 V. Wettenhall, 527 
 
 May V. Hook, 632 
 
 V. M., 75 
 
 Mayd v. Field, 345, 453 
 
 Mayhew v. Crickett, 321, 330, 332 
 
 McCalmont v. Rankin, 586 
 
 M'Carogher v. Whieldon, 452 
 
 M'Clellan, Exp., 387 
 
 McCormick v. Garnett, 179 
 
 V. Grogan, 35, 597
 
 TABLE OF CASES. 
 
 XXXVll 
 
 M'Culloch V. Bland, 50 
 M'Donnell v. Hesilrige, 54 
 McFadden v. Jenkyns, 53 
 McHenry v. Davies, 345 
 McKay's Case, 95 
 McKenzie r. Hesketh, 616 
 M'Queen r. Farquhar, 172, 615 
 Meaden v. Sealey, 264 
 Medworth v. Pope, 37 
 Meek v. Devenish, 442 
 
 V. Kettlewell, 55 
 
 Meeley v. Webber, 481 
 Meggott V. M., 557 
 Megrath v. Gray, 325 
 Meinertzhagen v. Walters, 449 
 Mellish V. De Costa, 390 
 
 V. Vallins, 508 
 
 Meluish v. Milton, 681 
 Mendes v. Guedalla, 110 
 Mercer v. Graves, 268 
 Merchants' Co. v. Banner, 590 
 Meredith v. Heneage, 34 
 
 V. Vick, 443 
 
 Merewether v. Shaw, 140 
 M etrop. Bank v. Heiron, 85 
 Met. Counties Soc. v. Brown, 188 
 Meure v. M., 47 
 Meux V. Jacobs, 261 
 
 V. Smith, 271 
 
 Mews V. M., 340 
 Miall V. Brain, 417 
 Micklethwait v. M., 641 
 Middleton v. Greenwood, 587 
 
 V. M., 196 
 
 V. Spicer, 130 
 
 Midland C. R. Co. v. Ogwin, 428 
 Mildmay v. Hungerford, 601 
 
 V. Quicke, 437 
 
 Mildred v. Neate, 626 
 Miles V. Durnford, 294 
 
 V. Thomas, 545 
 
 Mill V. Hill, 86, 100 
 Miller v. Cook, 146, 149 
 
 V. Craig, 189 
 
 V. Harris, 390 
 
 V. Huddlestone, 500 
 
 V. Mackay, 132 
 
 V. M., 528 
 
 V. Thurgood, 420 
 
 V. Warmington, 559, 569 
 
 Millett V. Davy, 238 
 Millington v. Fox, 671 
 
 Mills V. Farmer, 28 
 
 V. Fowkes, 474, 475 
 
 V. Jennings, 254 
 
 — ^v. Osborne, 110 
 Milltown V. Stewart, 678 
 MUner v. Colmer, 373 
 
 V. M., 191 
 
 Milnes v. Gery, 587 
 
 Milroy v. Lord, 51, 531 
 Mil ward v. E. of Thanet, 609 
 Mirehouse v. Scaife, 500 
 Mitchel T. Reynolds, 164 
 Mitchell, Exp., 395 
 
 V. Dors, 650 
 
 V. Smith, 531 
 
 Mitford V. Reynolds, 37 
 Moet V. Causton, 674 
 Mogg V. Hodges, 514 
 
 V. M., 651 
 
 Moggridge v. Thackwell, 28, 29 
 
 Mole V. Mansfield, 559 
 
 MoUwo, March & Co. v. C. of Wards, 
 
 536 
 Molony v. Kennedy, 343 
 Mompesson's Case, 662 
 Monck V. M., 447 
 Mondey v. M., 241 
 Money's Trusts, In re, 87 
 Montague v. Dodman, 632 
 Montefiore v. Brown, 63 
 
 V. Guedalla, 449 
 
 Montfort v. Cadogan, 123 
 Moodie v. Reid, 197 
 Moorcroft v. Dowding, 33 
 Moore v. Blake, 575 
 
 V. Clark, 670 
 
 V. Darton, 529, 530 
 
 V. Fisher, 314 
 
 V. Frowd, 129 
 
 V. Greg, 263 
 
 V. M., 508, 530 
 
 V. Morris, 352 
 
 V. Painter, 247 
 
 Moores v. Choat, 263 
 More V. M., 395 
 Morecock v. Dickens, 279 
 Morell V. Wooten, 308 
 Morgan r. Dillon, 391 
 
 V. Hatchell, 390 
 
 ■ — V. Malleson, 51, 531 
 
 V. Minett, 156 
 
 V. M., 104 
 
 V. Surman, 174 
 
 Morice v. Bishop of Durham, 27 
 Morison v. Moat, 545 
 
 V. M., 127 
 
 Morland v. Cook, 283 
 Morley v. Bird, 77 
 
 V. Rennoldson, 162 
 
 Mornington v. Keene, 463 
 Morony v. O'Dea, 256 
 Morres v. Hodges, 87 
 Morret v. Paske, 222, 249, 251 
 Morrice v. B. of England, 628 
 Morris v. Barrett, 541 
 
 V. Kearsley, 545 
 
 V. M., 640, 641, 650 
 
 V. Wright, 671
 
 XXXVIII 
 
 TABLE OF CASES. 
 
 Morrison i-. M., 129 
 
 . r. Universal &;c. Co., 143 
 
 Morse r. Martin. 195, 197 
 
 r. Palmer, 92 
 
 v. Royal, 91 
 
 Mortimer v. Capper, 188 
 
 V. Orchard. 574 
 
 Mortimore i: M-, 111 
 
 Mortlock r. Buller, 135, 194, 616 
 
 Moss, Ejcp.. 25S 
 
 Motley v. Downman, 673 
 INIountfort. £xp., 229, 388 
 Mower's Tr., Re. 515 
 Mower i: Orr, 424 
 Muckle--t.>n v. Brown, 35, 597 
 Mucklow r. Fuller, 117 
 Mulkem i: Ward, 661 
 MuUins V. Smith, 527 
 Mulvauy i: DiUon, 81, 86 
 Mimiford i: Gething, 164 
 
 V. Stohwasser, 249 
 
 Mundy r. Howe, 400 
 V. Jolliffe, 593, 594 
 
 r. M., 557 
 
 Mimns r. I. of W. R, Co., 271 
 Miiriess r. Franklin, 75 
 Mvutjv r. Barlee, 335, 345 
 McrkIt r. Elib-VSK, 365 
 Murray v. Palmer, 92, 149 
 
 '- v. Parker, 189 
 
 Murrell i: Goodyear, 610 
 Miisprat V. Gordon, 306 
 
 Nairne r. Prowse, 275 
 Nandick r. Wilkes, 43 
 Napier v. X., 378 
 Nash V. Hodsrson, 475, 476 
 
 r. N., 381 
 
 National &c. Co., Re, 211 
 r. Prudential Ass. Co., 
 
 657 
 National Pro v. Bk. r. Harle, 313 
 Navlor v. Mangles, 267 
 
 — ^: V. Winch, 182 
 
 Neap r. Abbott, 600 
 Neesom v. Clarkson, 163 
 Neilson v. Betts, 667 
 
 v. Harford, 664 
 
 Nelson v. Buncombe, 150 
 
 r. Page, 509 
 
 r. Stocker, 140, 152 
 
 Nelthorpe r. Holgate, 617 
 Nerot i: BmTiard, 550 
 Nevill's Case, 324 
 
 Nevill V. N., 48 
 
 NevUle V. Fortescue, 105 
 
 r. Wilkinson, 595 
 
 Nevin r. Drvsdale, 448 
 
 Newbery's Case, 669 
 
 Newberv, Re. 394 
 
 New Bninswick &c. Co. i. Muggeridge, 
 
 5S5 
 Newcastle r. Lincoln, 44 
 Newcomb i: Bonham, 220 
 Newlauds v. Paynter, 338, 352, 629, 632 
 Newman, Re, 98 
 
 r. Rogers, 605 
 
 i: Selfe, 241 
 
 v. Wilson. 371 
 
 New Sombrero &c. Co. r. Erlanger, 95 
 Newstead r. Searles, 60, 284 
 Newton, Exp., 132 
 
 V. Marsden, 162 
 
 V. N., 289 
 
 f. Vaiicher, 664 
 
 Nichol r. Stockdale, 671 
 Nicholls r. Maynard, 207, 218 
 Nicholson r. ReviU, 325, 326 
 
 V. Tutin, 125 
 
 Nisbet r. Smith, 320 
 Norhurv, Re, 390 
 Norfolk's (D. of) Case, 37 
 Norfolk (D. of) v. Myers, 685 
 Nonis r. Chambers, 23 
 
 r. Frazer, 35 
 
 r. N.. 524 
 
 r. Wilkinson. 260 
 
 r. Wright, 111 
 
 NoiTish r. MarshaU, 309 
 
 North B. Insce. Co. r. Lloyd, 320 
 
 r. Gnman, 557 
 
 Northern Assam Tea Co., Re, 312 
 Northumberland (E. of) v. Aylesford 
 
 (E. of), 421 
 Norton, Exp., 363 
 
 r. Mascall, 589 
 
 Nott r. Hill, 147 
 Nottley r. Pabner, 416 
 NOTS i: MOBDAUN-T, 407, 417 
 Nugent r. Tetzera, 395 
 Nvmn r. Fabian, 594 
 
 Oakde^ v. Pike, 607 
 Oakes, Exp., 263 
 Obee r. Bishop, 122 
 O'Brien v. O'B., 641 
 O'Connor v. Spaight, 470 
 Odessa &c. Co. r. Mendel, 573 
 Offord V. Davies, 326 
 Oglander v. Baston, 381 
 O'Hara v. Chaine, 417 
 O'Keeffe v. Casey, 390 
 Oldham v. Hughes, 440 
 OUve r. Smith, 478 
 Oliver r. Brickland, 465 
 V. Court, 96
 
 TABLE OF CASES. 
 
 XXJQX 
 
 Olliver r. King, 57 
 
 Orby V. Trigg, 219 
 
 Ord V. White, 311 
 
 Oriental &c. Co. r. Briggs, 585 
 
 Corp. r. Overend & Co., 
 
 322 
 
 Omierod r. Hardman, 602 
 Ormond v. Kvnnersley, 64" 
 O'Rorke r. Bolingbroke, li", 148 
 Orr r. Newton, 107 
 OrreU r. 0., 419 
 Orrett, Exp., 260 
 
 V. Corser, 122 
 
 Osbom V. Lea, 167 
 V. Morgan, 368 
 
 Osborne v. Williams, 678 
 Oswald i: M. of Berwick, 324 
 Oswell V. Probert, 363, 369 
 Ouseley v. Anstruther, 498 
 Overton v. Banister, 152 
 Owen V. Homan, 140, 320, 345 
 
 V. WilUams, 86 
 
 Owens V. Dickenson, 345, 347, 487 
 Oxenden v. Compton, 405, 427 
 
 V. 0., 378 
 
 Oaford's (E. of) Case, 13, 623 
 Oxford V. Rodney, 504 
 Oxiey V, Holden, 664 
 
 Padbuet r. Clarke, 410, 411, 421 
 Paddon v. Richardson, 108 
 Pad'ivick v. Stanley, 470 
 Page V. Adam, 296, 298, 618 
 
 V. Bennett, 209 
 
 V. Home, 157 
 
 V. Leapingwell, 522, 523 
 
 Paget r. Ede, 12 
 
 V. Read, 118 
 
 Pain V. Coombs, 593 
 Pale V. P., 73 
 Pahner v. Bate, 313 
 
 V. Danby, 223 
 
 V. Hendrie, 242 
 
 V. Newell, 454 
 
 V. Wakefield. 401 
 
 V. WTieeler, 172 
 
 V. Young, 83 
 
 Panama &c. Co. v. India Rxibber &c. 
 
 Co.. 96 
 Pankhurst v. Howell, 448 
 Papillon V. Voice, 45 
 Pardo V. Bingham, 487, 502 
 Parfitt r. Lawless, 159 
 Paris Skating Rink Co., He, 314 
 Parker v. Brooke, 338, 348 
 
 r. Butcher, 212 
 
 V. Clarke, 263 
 
 r. Frith, 606 
 
 Parker 
 
 V. McKenna, 96 
 V. Taswell, 601 
 r. Watkins, 237 
 
 Parke s, Exp., 274 
 
 V. White, 91, 92, 350 
 
 Parkin v. Thorold, 574 
 Parkinson v. Hanbury, 237 
 Pamall r. P., 34 
 PameU, In the goods of, 390 
 
 V. Hingston, 66 
 
 Parrot r. Palmer, 646 
 Parsons v. Briddock, 331 
 Parteriche v. Powlet, 227 
 Partridge v. P., 522, 525 
 Passingham v. Sherborne, 90 
 Patch r. WUd, 236 
 Patent &c. Co. v. Walter, 667 
 Patman v. Harland, 283 
 Payne v. Mortimer, 490 
 Peachey's Case, 68 
 Peachy r. D. of Somebset, 205 
 Peacock, He, 450 
 
 v. Burt, 250 
 
 V. Evans, 146 
 
 V. Monk, 337, 342 
 
 V. Penson, 574 
 
 Peake r. Highfield, 677 
 Pearce r. Crutchfield, 395 
 
 V. Loman, 51-3 
 
 V. Morris, 223 
 
 Pearl v. Deacon, 330 
 Pearse v. Green, 126 
 
 Pearson v. Ajnicable Ass. Co., 53 
 
 V. Benson, 100 
 
 Peckham v. P., 393 
 Pedder's Sett., Re, 443 
 Peers v. Ceeley, 127 
 
 V. Lambert, 615 
 
 Pegg V. Wisden, 607 
 
 Pegler r. White, 574 
 
 Peirce v. Corf, 596 
 
 Pell V. Northampton R. Co., 271 
 
 Pemberton v. Barnes, 562 
 
 V. M'Gill, 344 
 
 V. Oakes, 476 
 
 Pembroke v. Friend, 507, 508 
 
 V. Thorpe, 593 
 
 Penfold V. Mould, 372 
 
 Pexn v. Ld. Baltimore, 11, 23, 579 
 
 Penn v. Bibby, 667 
 
 Pennington r. Brinsop &c. Co., 655, 659 
 
 r. Dalbiac, 564 
 
 Percival v. Phipp, 669 
 Perkins v. Ede, 615 
 Perrin r. Lyon, 161 
 Perrot r. P., 644 
 Perry v. Marston, 225 
 
 V. P., 102 
 
 V. Truefitt, 672 
 
 Peter v. Nicolls, 61
 
 xl 
 
 TABLE OF CASES. 
 
 Peters v. Bacon, 566 
 Peto V. Hammond, 273 
 Petre r. P., 523 
 Peyton v. M. of London, 658 
 Philipps V. Homfrey, 653 
 Phillips, Exp., 405, 427 
 Beal, 520 
 
 — V. Edwards, 593, 596 
 
 — V. Foxhall, 327 
 
 — V. Gutteridge, 253 
 
 — r. Hudson, 685 
 
 — V. MiUer, 617 
 
 — V. Parry, 499 
 
 — V. P. (4 De G. r. & J. 208), 
 
 289 291 
 
 — V. P. (i My. & K. 649), 541 
 
 — V. Smith, 637 
 V. Vaughan, 222 
 
 PhiUipson v. Gatty, 123 
 
 V. Kerry, 191 
 
 Philpot V. Brian t, 321 
 
 V. Jones, 475 
 
 Phipps V. Lovegrove, 311 
 Pickard v. Anderson, 111 
 
 r. Roberts, 375 
 
 Pickering v. 1. R. Co., 309 
 
 V. P., 103, 182 
 
 V. Voules, 82 
 
 Pickup V. Atkinson, 105 
 
 Pidcock V. Bishop, 319 
 
 Pierce v. Webb, 677 
 
 Pierse v. Waring, 156 
 
 Pierrepont v. Cheney, 401 
 
 Pigot V. Bullock, 647 
 
 Pike V. Fitzgibbon, 257 
 
 Pilcher r. Rawlins, 250, 287, 288 
 
 Pinchin v. Simms, 460 
 
 Pincke v. Curteis, 607 
 
 Pinney v. Hunt, 3, 681 
 
 Piper V. P., 507 
 
 Pisani v. Att.-G. of Gibraltar, 97 
 
 Pitcaim v. Osbourne, 600 
 
 Pitt V. Cholmondeley, 483 
 — V. Jones, 564 
 
 Pitt v. Mackreth, 88 
 
 Pitt V. P., 227 
 
 Playford v. P., 575 
 
 Pledge r. Buss, 330 
 
 Plimpton V. Malcolmson, 664, 666 
 
 V. SpHler, 666 
 
 Plumb r. Fluitt, 280 
 
 Plunket V. Penson, 487 
 
 Plunkett V. Lewis, 460, 461 
 
 Plymouth (Corp. of) w.Throgmorton,481 
 
 Pocock V. Att.-G., 28 
 
 r. Redington, 110 
 
 Pole r. P., 82 
 
 Pollard r. Clayton, 575 
 
 Pomfret (E. of) v. Ld. Windsor, 179, 
 252, 285 
 
 Poole, Exp., 463 
 
 V. Bolt, 161 
 
 V. Middleton, 585 
 
 r. Pass, 127 
 
 V. Shergold, 612, 615 
 
 Pooley V. Budd, 583 
 
 V. Driver, 537 
 
 V. Harradine, 317 
 
 V. Ray, 204 
 
 Pope V. Curi, 668 
 
 V. P., 35 
 
 Popham V. Eyre, 606 
 Portarlington v. Soulby, 626, 630 
 Portland i: Topham, 169 
 Portmore v. Taylor, 146 
 
 Post V. March, 573 
 Pott r. Todhunter, 59 
 Potter, Ee, 396 
 Potts V. Curtis, 147 
 
 V. P., 48 
 
 V. Smith, 657 
 
 Powel V. Cleaver, 392 
 Powell, Exp., 261 
 
 V. Aikin, 652 
 
 V. Evan.s, 101 
 
 V. Glover, 98 
 
 V. Hankey, 348 
 
 V. Knowles, 314 
 
 r. Merrett, 130 
 
 V. Price, 188 
 
 V. Riley, 498 
 
 V. Smith, 601 
 
 Powell &c. Co. r. Taff R. Co., 590 
 Powlett V. Balton, 648 
 Powys V. Blagrave, 641 
 
 V. Mansfield, 447, 450 
 
 Frees r. Coke, 93 
 Prendergast r. Eyre, 614 
 Prescott, Exp., 478 
 
 Price, Exp., 261 
 
 V. Barker, 326 
 
 r. Dyer, 602 
 
 V. Jenkins, 59, 593 
 
 V. Macaulay, 614, 617 
 
 V. North, 616 
 
 V. Penzance (Corp. of), 588 
 
 V. Perrie, 218 
 
 Priestman v. Tindall, 122 
 Printing &c. Co., He, 495 
 
 r. Sampson, 306 
 
 Prosser v. Edmonds, 314 
 
 r. Rice, 249 
 
 Proudfoot V. Montefiore, 143 
 
 Proudley v. Fieldes, 343 
 
 Pro\'ident P. B. Soc. v. Greenhill, 212 
 
 Prowse V. Abingdon, 513 
 
 Priidential Ass. Co. v. Knott, 661 
 
 Pryce v. Bury, 261, 264 
 
 Pulbrook r. Richmond &c. Co., 235 
 
 PuUen V. Ready, 180
 
 TABLE OF CASES. 
 
 Xli 
 
 Pulsford V. Richards, 140 
 
 Pulteney v. Darlington, 431, 442, 443 
 
 Pulvertoft V. P., 59 
 
 Purdew v. Jackson, 375, 382 
 
 Purse V. Snaplin, 522 
 
 Ptisey V. Desbouverie, 181, 182, 420 
 
 PusET V. P., 584 
 
 Pybus V. Smith, 349, 350 
 
 Pte, Exp., 55, 445, 447, 523 
 
 Pym V. Blackburn, 201 
 
 V. Bowreman, 222 
 
 V. Campbell, 189 
 
 V. Lockyer, 447, 449 
 
 Quarrel v. Beckford, 127, 237 
 Queensberry r. Shebbeare, 669 
 Quennell v. Turner, 497 
 
 Radcliffe v. D. of Poi-tland, 657 
 Raggett V. Findlater, 673 
 Raikes r. Ward, 397 
 Rakestraw v. Brewer, 84 
 Ralston v. Smith, 663 
 Ramsbottom r. Gosden, 601, 602 
 Ramsden v. Dyson, 168 
 Ramuz v. Crowe, 200 
 Rancliffe v. Parkyns, 515 
 Rand v. Cartwright, 223 
 Randall v. Errington, 92, 123 
 
 V. Morgan, 594 
 
 V. R., 543 
 
 V. Russell, 520 
 
 Rankin v. Huskisson, 590 
 Ransome v. Burgess, 400 
 Raphael v. Boehm, 527 
 
 V. T. V. R. Co., 588 
 
 RatcUfEe v. Winch, 102 
 Raven v. Waite, 527 
 Ravenscroft v. Jones, 449, 450 
 Rawe V. Chichester, 81, 86 
 Rawlins v. Powell, 459 
 
 v. Wickham, 140, 551 
 
 Rawlinson v. R., 524 
 Raworth r. Parker, 63 
 
 Ray, £xp., 340 
 Read v. Bailey, 548 
 
 V. Lowndes, 325 
 
 V. R., 687 
 
 V. Strangeways, 523 
 
 Reade v. Lacy, 670 
 Redington r. R., 69, 72, 73, 75 
 Reece v. Trye, 584 
 Reed v. Norris, 331 
 Rees v. Berrington, 320 
 Rees V. Keith, 380 , 
 
 Reese River &c. Co. v. Smith, 140 
 
 Reeve v. Hicks, 228 
 
 Reeves v. R., 679 
 
 Rehden v. Wesley, 121 
 
 Reid's Case, 74 
 
 Reid V. Shergold, 194 
 
 Renard v. Levinstein, 666 
 
 Rex V. Pease, 660 
 
 Reynell v. Sprye, 141 
 
 Reynolds, Ex}}., 100 
 
 V. Godlee, 439 
 
 Rhodes v. Bate, 158 
 Rice r. Gaultier, 687 
 
 V. R., 272 
 
 Rich V. Cockell, 338, 341, 342, 348, 419 
 
 i: Whitfield, 426 
 
 Richards & Co., Jie, 495 
 
 V. Cooper, 264 
 
 V. Delbridge, 51, 53, 54, 531 
 
 V. Lewis, 59 
 
 V. R., 521, 526 
 
 V. Rose, 659 
 
 Richardson v. Greese, 460 
 
 V. Horton, 299 
 
 — V. Merrifield, 396 
 
 V. R., 51 
 
 r. Smith, 615 
 
 Richie v. Couper, 97 
 Richmond v. X. S. R. Co., 432 
 
 r. White, 492, 495 
 
 Rickard r. Barrett, 511 
 Rideout v. Lewds, 360 
 Rider i: Wager, 524 
 Ridges V. Morrison, 456, 514 
 Ridgway v. Clare, 548 
 
 - — -r. Gray, 613 
 
 Ridley, Re, 351 
 
 Rigden r. Vallier, 76, 77, 531 
 
 Ripon r. Hobart, 635 
 
 Rishton v. Whatmore, 596 
 
 River Dun &c. Co. v. K M. R. Co., 652 
 
 Roach V. Garvan, 391, 401 
 
 V. Trood, 171 
 
 Roadley v. Dixon, 417 
 Roberts v. Berry, 606 
 
 V. Croft, 258 
 
 V. Dixwell, 47, 343 
 
 V. Eberhardt, 540 
 
 V. Kuffin, 483 
 
 V. R., 163 
 
 V. Williams, 247 
 
 Robinson, Exp., 551 
 
 V. Briggs, 233 
 
 V. Chartered Bk., 585 
 
 V. Gee, 227 
 
 V. Geldard, 514 
 
 V. Gov. of London Hosp., 30 
 
 V. Litton, 644 
 
 V. Lowater, 296, 299, 302 
 
 V. Page, 602
 
 xlii 
 
 TABLE OF CASES. 
 
 Robinson v. Pett, 124, 131 
 
 r. E. (11 Beav. 371), 118 
 
 V. R. (19 Beav. 494), 440 
 
 ,.. R. (1 De G, M. & G. 247), 
 
 107. 115 
 
 V. Smith, 34 
 
 r. Wheelwright, 353, 422 
 
 Robson r. Kemp, 266 
 Roch V. Callen, 456 
 Roche V. O'Brien, 92 
 Rochford v. Fitzmaurice, 42, 43 
 
 r. Hockman, 394 
 
 Rodick V. Gandall, 308 
 Rogers r. Acaster, 382 
 
 V. Challis, 576, 589 
 
 V. Driver, 671 
 
 r. Jones, 410 
 
 V. South, 447 
 
 V. Waterhouse, 574 
 
 Rolfe V. Chester, 248 
 
 V. Peterson, 212 
 
 Rolls V. Pearce, 530 
 Rolt V. Somerville, 640 
 
 V. White, 311 
 
 Rook r. Worth, 443 
 Rooke r. Kensington, 190 
 Roper-Curzon v. R., 402 
 Rose V. R., 555 
 
 V. Watson, 277 
 
 Ross's Tr., Re, 350 
 Roswell's Ca., 193 
 Roughton V. Gibson, 562, 564 
 Rous V. Noble, 684 
 Rouse's Est., He, 527 
 Routledge v. Dorril, 172 
 
 V. Low, 667 
 
 Row V. Dawson, 307 
 Rowbotham v. Dunnett, 597 
 Rowe V. Gray, 562 
 
 . V. Jackson, 367 
 
 V. R., 50, 460 
 
 V. Wood, 238 
 
 Rowland v. Cuthbertson, 417 
 Rowley v. Adams, 543 
 
 V. R., 173 
 
 V. Unwin, 348 
 
 Roy V. Beaufort, 151 
 RumboU r. R., 73 
 Rundell v. Murray, 671 
 Ruscombe v. Hare, 228 
 Rush V. Higgs, 628 
 Ru.shforth, £xp., 332 
 Rushworth's Case, 84 
 Russel V. Dickson, 456 
 RussEL V. R., 257 
 
 V. Jackson, 597 
 
 V. Smith, 670 
 
 Rutter V. Bartley, 292 
 Ryal V. R, 68 
 Ryall v. Rowles, 310 
 
 Ryan v. JVIackmath, 676 
 Rycroft ?'. Christy, 55 
 Ryland v. Smith, 379, 380 
 
 Sackville v. Smyth, 509 
 Saddler v. Hobbs, 117 
 Sagitary v. Hyde, 513 
 Sale V. Moore, 35, 36 
 Salter ?'. Bradshaw, 149 
 Salusbiiry v. Denton, 38 
 Salway v. S., 109, 373 
 Samuel v. Howarth, 321 
 Samwell v. Wake, 497 
 Sanders v. Hooper, 127 
 Sanderson v. Aston, 324 
 
 V, Walker, 100 
 
 Sandon v. Hooper, 237, 238 
 Sanger v. S., 358 
 Sanson v. S., 314 
 Saull I'. Browne, 632 
 Saunders v. Dehew, 288 
 
 V. Leslie, 275 
 
 V. Smith, 635 
 
 Savage v. Foster, 123, 166, 168, 344 
 
 Savile v. Blacket, 522, 525 
 
 Savill V. S., 396 
 
 Sawrey r. Rumney, 456 
 
 Saxby V. Easterbrook, 667 
 
 Sayer v. S., 30 
 
 Sayre v. Hughes, 72 
 
 Scarfe v. Morgan, 265 
 
 Scattergood v. Harrison, 131 
 
 Scholefield r. Heap, 449 
 
 V. Lockwood, 236 
 
 Schroder v. S., 418 
 Scott V. Beecher, 504, 505 
 
 V. Hastings, 309 
 
 V. Porcher, 308 
 
 V. Payment, 588 
 
 V. Spashet, 363 
 
 V. Stanford, 669 
 
 Scott v. Tyler, 160, 161, 294 
 Scriven v. Tapley, 367 
 Scroggs V. S., 172 
 Scrutton v. Patello, 381 
 Scudamore v. S., 428, 430 
 Sculthorpe v. Tipper, 108 
 Seaborne v. Powell, 85 
 
 Seagram v. Knight, 91, 638, 648, 649, 
 
 650 
 Scale V. S., 45 
 Seaman v. Vaudrey, 614 
 Searle v. Law, 51 
 Sedgwick v. Daniell, 544 
 Seed V. Higgins, 664 
 Seeley v. Jago, 440, 442 
 Seixo V. Provizende, 673
 
 TABLE OF CASES. 
 
 xliii 
 
 Selby V. Pomfret, '253, 255 
 Sells V. S., 190 
 
 Semple v. L. & B. R. Co., 652 
 Serle v. St. Eloy, 499, 503 
 Seton r. Slade, 603, 607 
 Sewell's Estates, Ee, 104 
 Sewell V. King, 53 
 Seymore i>. Tresilian, 361 
 Shaftesbury v. S., 525 
 Shafto V. Adams, 149 
 
 V. 8., 505 
 
 Shaftoe v. S., 687 
 Shakeshaft, £xp., 122 
 Shallcross v. Finden, 500 
 
 V. Oldham, 132 
 
 Shand v. Du Buisson, 308 
 Shannon r. Bradstreet, 193, 194 
 Sharp V. Leach, 158 
 
 V. St. Sauveur, 440, 442 
 
 Sharpe v. Toy, 285 
 Sharpies v. Adams, 249 
 Shaw V. Borrer, 298, 299 
 
 V. Bunnv, 93 
 
 r. Fisher, 585 
 
 V. Foster, 260 
 
 V. Jefifry, 220 
 
 V. Lawless, 35 
 
 V. Neale, 249, 251 
 
 Sheddon v. Groodrich, 418 
 
 Sheffield v. Buckinghamshire (D. of), 
 
 681 
 Sheldon v. Cox, 284 
 Shelly V. Nash, 147 
 Shelley v. S., 48 
 
 V. Westbrooke, 389 
 
 Shepheard v. Walker, 610 
 Shepherd v. Churchill, 560 
 
 V. Elliott, 236 
 
 V. Mouls, 115 
 
 V. Titley, 251, 262 
 
 Sherriff v. Axe, 131 
 
 Sherrington v. Yates, 380 
 
 Sherwin v. Selkirk, 489 
 
 Shipbrook v. Hinchinbrook, 119 
 
 Shirley r. Stratton, 575 
 
 Shirreff v. Hastings, 493 
 
 Shovelton v. S., 34 
 
 Shower v. Pilck, 49 
 
 Shrewsbury &c. R Co. v. S. & B. R. 
 
 Co., 635 
 Shuttleworth v. Laycock, 248 
 Sibberiug v. Balcarras, 149 
 Sichel r. Mosenthal, 589 
 Sidmovith v. S., 67, 75 
 Sidny r. Ranger, 97 
 Siggers v. Evans, 49, 62 
 Silk V. Prime, 500 
 Sillem V. Thornton, 143 
 Simmons v. Pitt, 435 
 Simpson v. Denifeon, 631 
 
 Simpson v. Fogo, 630 
 
 V. Howden, 627, 677 
 
 V. Lamb, 314 
 
 V. Ritchie, 567 
 
 V. Vaughan, 318 
 
 Simson v. Ingham, 475 
 V. Jones, 879 
 
 Singer &c. Co. v. Wilson, 6QQ, 673 
 Sisson V. Giles, 440, 441 
 Skidmore v. Bradford, 74 
 Skillett r. Fletcher, 324 
 Skip V. Harwood, 266 
 Slade V. Barlow, 556 
 
 V. Rigg, 242 
 
 Slaney v. Watney, 128 
 Slanning v. Style, 684 
 Sleech v. Thorington, 377 
 Sleeman v. Wilson, 391 
 Slim V. Croucher, 140 
 Slocombe v. Glubb, 385 
 Sloman r. Walter, 206, 208 
 Sloper, Jie, 428 
 Smallman r. Onions, 645 
 Smart ,'. Hunt, 225, 236 
 Smee v. Martin, 403 
 Smith, £xp. (3 Bro. C. C. 1), 324 
 
 Exp. (2 M. D. & De G. 587), 
 
 262 
 
 V. Aykwell, 633 
 
 i: Bate, 391 
 
 V. Bruning, 163 
 
 V. Burnam, 609 
 
 V. Casen, 532 
 
 V. Chichester, 84 
 
 V. Claxton, 438 
 
 r. Clay, 575 
 
 V. Cooke, 646, 679 
 
 V. Evans, 275 
 
 V. (Garland, 61 
 
 V. Hibbard, 270 
 
 V. Hughes, 186 
 
 V. Iliffe, 191 
 
 ■(.'. Jeyes, 550 
 
 V. L. & S. W. R. Co., 667 
 
 V. Matthews, 33, 369 
 
 r. Morgan, 495 
 
 V. Peters, 587 
 
 r. S. (3 Atk. 305), 395 
 
 V. S. (21 Beav. 385), 118 
 
 V. S. (5 Ves. 193), 540, 543 
 
 V. Wheatcroft, 602 
 
 Smyth V. Griffin, 677 
 Sneed v. S., 194, 196 
 Snelgrove v. Bailey, 529 
 Snowdon, £xp., 329 
 Soames v. Edge, 577 
 Soar V. Foster, 72 
 Sobey v. S., 688 
 Sockett V. Wray, 343 
 Solomon v. S., 507
 
 xliv 
 
 TABLE OF CASES. 
 
 Soltau V. De Held, 654 
 
 Somerset V. Cookson, 584 
 
 Sopwith v. Maugham, 421 
 
 Soutliall, Exp., 2t)5 
 
 South W. R. Co. r. Wythes, 587, 
 
 588 
 Southey v. Sherwood, 668 
 Sowden r. S., 463 
 Spalding v. Shalmer, 298 
 Sparke v. Foy, 280 
 Sparkes v. Cator, 453 
 Sparks v. Liverpool Waterworks, 211 
 Sparrow v. Friend, 558 
 
 r. O. W. & W. E. Co., 635 
 
 Spence, Re, 388, 393 
 
 Spencer v. Chesterfield, 390 
 
 V. Peek, 690 
 
 Spinks V. Robins, 448, 450 
 Spire V. Smith, 456 
 
 Spirett V. Willows, 56, 378, 379 
 
 Spoile V. Whayman, 260 
 
 Spring V. Pride, 90 
 
 Sproule V. Prior, 276, 511 
 
 Spurgeon v. Collier, 60 
 
 Spurway v. Glynn, 522 
 
 Squib V. Wyn, 305 
 
 St. Albans (D. of) v. Beauclerk, 455 
 
 St. George v. Wake, 385 
 
 St. Helens Smelting Co. v. Tipping, 
 
 657 
 St. John V. Boughton, 226 
 
 V. St. J., 678 
 
 V. Wareham, 221 
 
 St. Luke's V. St. Leonard's, 568 
 Stacey v. Elph, 92 
 Stackhouse v. C. of Jersey, 289 
 Stackpole v. Beaumont, 161 
 Stackpoole v. Beaumont, 372 
 Stamford &c. Bk. v. BaU, 341 
 Stanford v. Roberts, 679 
 Stanhope v. Manners, 207, 218 
 Stanley v. Potter, 523, 524 
 Stansfield v. Habergham, 644 
 
 V. Hobson, 226 
 
 Stanton v. Hall, 338 
 
 V. Percival, 583 
 
 Stapilton r. S., 182 
 Stead ('. Hardaker, 499 
 
 V. Mellor, 36 
 
 V. Nelson, 342 
 
 V. Newdigate, 429 
 
 Stebbing r. Walker, 191 
 Steed r. Preece, 437 
 Steedman v. Poole, 350 
 Steel V. Dixon, 330, 331 
 Stephens, Exp., 479, 673 
 Stephenson v. Chiswell, 548 
 
 V. Heathcote, 498 
 
 Stevens v. Bagwell, 314 
 Stevenson v. Blakelock, 267 
 
 Steward v. Blakeway, 343 
 Stewart v. G. W. R. Co., 135 
 
 V. Hoare, 127 
 
 V. S., 178 
 
 Stickland v. Aldridge, 573, 597 
 Stickney v. Sewell, 111, 112 
 Stikeman v. Dawson, 168 
 Stiles V. Cowper, 596 
 
 V. Guy, 117 
 
 Stirling v. Forrester, 326, 328 
 Stock V. M'Avoy, 74 
 Stockdale v. Onwhyn, 668 
 Stockton &c. Co., Re, 240 
 Stokoe r. Cowan, 57 
 Stone, Re, 174 
 
 V. Lidderdale, 313 
 
 r. S., 122 
 
 Stonehewer v. Thompson, 222 
 Storer v. G. W. R. Co., 587 
 Story V. Johnson, 559 
 Storry v. Walsh, 299 
 Stourton V. S., 394 
 
 Strang, Exp., 480 
 Strange v. Fooks, 330 
 Stratford x. Powell, 421 
 
 r. Tvvynam, 94 
 
 Str.\thmore v. Bowes, 382 
 Stratton v. Best, 411 
 Streatfield r. S., 42, 409, 420 
 Street r. Digby, 589 
 Strickland v. Turner, 186 
 Strovighill V. Anstey, 296, 300 
 Stuart V. Bute (M. of), 395 
 
 V. Kirkwall, 345 
 
 Stubbs V. Sargon, 30, 372 
 Sturge V. Starr, 289 
 
 Sturgis V. Champneys, 369, 370 
 
 . r. Corp, 341 
 
 Sty an. Re, 310 
 Suart r. Toulmine, 257 
 Suffolk V. Green, 690 
 Sugden v. Ci'ossland, 125 
 Suisse V. Lowther, 446, 455 
 Sullivan v. Jacob, 574 
 Supple V. Lawson, 174 
 Surcombe v. Pinniger, 594, 595 
 Sutherland v. Briggs, 594 
 Swain r. Wall, 329, 330 
 Swain.son v. S., 505 
 Swaisland r. Dearsley, 574 
 Swan V. S., 559 
 Swayne r. S., 311 
 Sweetapple r. Bindon, 45, 429 
 Swift V. S., 387 
 Syers v. S., 538 
 Sykes' Trusts, 54, 345, 349 
 Sykes v. Hastings, 125 
 Synge v. Hales, 48
 
 TABLE OF CASES. 
 
 xlv 
 
 Tapf Vale Co. v. Nixon, 470 
 Taggart y. T., 43 
 Tait V. Leithead, 55 
 
 V. Northwick, 498 
 
 Talbot V. Frere, 248 
 
 V. Hope-Scott, 640 
 
 r. Marshman, 398 
 
 Talbot v. D. of Shrewsbury, 394, 458, 
 
 459 
 Talbot V. Stainforth, 148 
 Tankerville r. Fawcett. 505 
 Tanner v. Smith, 618 
 
 r. Wise, 679 
 
 Tardiffe r. Scrughan, 270 
 Tarsey's Trust, Re, 340 
 Tasburgh's Case, 372 
 Tate V. Hubert, 528, 529, 531 
 
 V. Williamson, 99 
 
 Tatham r. Piatt, 574 
 Taunton v. Morris, 371, 377 
 Tayleur, Ee, 690 
 Taylor, Be (4 Ch. D. 157), 389 
 
 Ee (8 Ch. D. 188), 495 
 
 V. Allen, 683 
 
 V. Caldwell, 199 
 
 V. Cartwright, 450 
 
 V. Coenen, 56 
 
 v. Eckersley, 590 
 
 V. Hawkins, 294 
 
 V. Haygarth, 130, 430 
 
 V. Johnson, 399 
 
 V. Meads, 342 
 
 V. Mills, 332 
 
 r. Plumer, 464 
 
 V. Portington, 574 
 
 V. Pugh, 384, 385 
 
 r. Stibbert, 282, 283 
 
 V. T. (10 Eq. 477\ 121 
 
 V. — (10 Ha. 475), 525 
 
 V. Wheeler, 196 
 
 Teague's Settlement, Ee, 351 
 Teall V. Watts, 565 
 Teasdale r. Braithwaite, 60 
 
 r. T., 168 
 
 Tebbs V. Carpenter, 126 
 Tendril r. Smith, 155 
 Tenham r. Herbert, 685 
 Tennant's Case, 663 
 Tennant, Exp., 538 
 
 V. Brail, 164 
 
 V. Trenchard, 100, 264 
 
 Tennent v. T., 145 
 
 Terry r. T., 110 
 
 Thelluson v. Woodford, 410, 418 
 
 Therry v. Henderson, 401 
 
 Thomas v. Bennett, 360 
 
 ■ V. Dering, 574 
 
 V. Griffiths, 492 
 
 V. Roberts, 389 
 
 r. T., 227 
 
 Thompson v. Ashbee, 92 
 
 I'. Bennett, 487 
 
 V. Bowyer, 226 
 
 V. Burra, 417 
 
 — V. Fisher, 47 
 
 V. Griffin, 400 
 
 V. Hudson, 236 
 
 i\ Lack, 326 
 
 i: Stanhope, 669 
 
 V. Tomkins, 311 
 
 Thornborough v. Baker, 220 
 Thorndyke r. Hunt, 116, 290 
 Thornhill v. Manning, 241 
 Thornton, Exp., 286 
 
 — - V. Dixon, 541 
 
 i'. Hawley, 426 
 
 V. Howe, 37 
 
 Thorley's Cattle Food Co. v. Massam, 
 
 661 
 Threfall v. Borwick, 266 
 Threlfall r. Lunt, 677 
 Thynn v. T., 35 
 
 Thynne v. E. of Glengall, 450, 459 
 Tibbits V. T., 421 
 Tidd V. Lister, 370, 371, 381, 515 
 Tilley v. Thomas, 606, 607 
 Tinkler's Est., Ee, 526 
 Tinsley v. Lacy, 669 
 Tipping V. T., 361, 501, 510 
 Titley v. Davies, 253, 254 
 Todd r. Wilson, 483 
 Toft V. Stephenson, 271 
 Toker v. T., 158 
 Tollemache r. T., 649 
 Toller r. Carteret, 12 
 Toilet V. T., 194, 196 
 Tolson V. Collins, 460 
 Tombes r. Elers, 395 
 Tomkins v. Colthurst, 501 
 Tompson v. Judge, 156 
 Tooker v. Annesley, 649 
 Tooth V. Hallett, 311 
 Topham v. Portland, 171, 173 
 Torrance r. Bolton, 276 
 Tourville r. Naish, 280 
 Tower t\ Rous, 497 
 Townend r. T., Ill, 126 
 Townley v. Bedwell, 432 
 Townley t. Sherborne, 116 
 Townsend r. Barber, 117 
 
 V. Devaynes, 541 
 
 V. Mostyn, 504 
 
 1'. Westacott, 56 
 
 Townshend Peerage Ca., 690 
 Townshend v. Stangroom, 598 
 Townshend v. Windham, 359 
 Tracy v. T., 643 
 Trafiford v. Boehm, 122, 441 
 Tremain's Case, 391 
 Trethowan, Ee, 261
 
 xlvi 
 
 TABLE OF CASES. 
 
 Trevelyau v. Charter, 96 
 Trevor v. T., 42, 47 
 Trident, The, 515 
 Trimbleston v. Hamill, 238 
 Trimmer r. Bayne, 276, 448 
 
 — V. Danby, 529 
 
 Troutbeck v. Boughey, 343 
 Trowell v. Shenton, 60, 61 
 Truloek v. Eoby, 226 
 Trumper v. T., 82, 87 
 Trutch r. Lamprell, 110 
 Tubbs ?'. Broadwood, 463 
 Tucker v. Barrow, 71 
 
 V. Laing, 321 
 
 r. Wilson, 229 
 
 Tudor r. Anson, 197 
 Tuer r. Turner, 441 
 Tuflfnell V. Page, 30 
 Tnlloch r. Hartley, 13, 568 
 TuUet r. Armstrong, 342, 349, 351 
 Turner, Exp., 122 
 
 V. Blamire, 652 
 
 V. Buck, 527 
 
 V. Collins, 155 
 
 V. Harvey, 142 
 
 V. Letts, 262, 268, 584 
 
 i; Major, 544 
 
 V. Morgan, 558 
 
 -y. Spooner, 657 
 
 V. T., 82 
 
 V. Wright, 644 
 
 Turton r. Benson, 163, 311 
 T-weddell r. T., 149 
 Tvveedale's Settmt., He, 372 
 Tweedale r. T., 254, 284 
 Twining r. Powell, 449 
 Tyler v. Lake, 339 
 
 V. Yates, 146, 629 
 
 Tynt V. T., 501, 510 
 Tyrrell r. Hope, 339 
 Tyson v. Cox, 321 
 V. Jackson, 315 
 
 Ungley v. U., 594 
 
 Union Bank &c. v. Ingram, 218 
 
 Unity &c. Co. v. King, 258 
 
 Univ. of 0. & C. V. Richardson, 665, 
 
 671 
 Upperton r. Nickolson, 609, 614 
 Uvedall v. U., 647, 648 
 
 Vachell r. Roberts, 105 
 Vance v. V., 73 
 Vandeleur i\ V., 504 
 Vane v. Barnard, 638 
 V. Dungannon, 174 
 
 Vaughan v. Buck, 371 
 
 V. Noble, 90 
 
 V. Vanderstegen, 344, 345, 
 
 346 
 
 V. Welsh, 630 
 
 Veal I', v., 529 
 Vernon v. Vawdry, 483 
 Vickers v. Cowell, 77 
 
 V. Pound, 525 
 
 Vigers v. Pike, 144 
 Villareal v. Mellish, 388 
 Villiers v. Beaumont, 679 
 Vine r. Mitchell, 143 
 Viner v. Vaughan, 638 
 Vint V. Padget, 253 
 Vorley v. Cooke, 185 
 VuUiamy v. Noble, 479 
 Vyse V. Foster, 133 
 
 W. r. B. (11 Beav. 621), 161 
 W. V. B. (32 Beav. 574), 678 
 Wade V. Hopkinson, 396 
 
 V. Paget, 1 95 
 
 Wagstaffe v. Smith, 338 
 Wain r. Bailey, 200 
 Wake v. Conyeks, 568 
 
 V. Harrop, 189 
 
 V. W., 420, 421 
 
 Walcot V. Walker, 668 
 Waldo V. W., 649 
 Waldy V. Gray, 285, 291 
 Walford v. Gray, 594 
 Walker r. Denne, 429, 442 
 
 V. Flamstead, 286 
 
 — V. Laxton, 522 
 
 r. Micklethwait, 632 
 
 V. Preswick, 272 
 
 ,.. Symonds, 119, 123 
 
 r. Ware &c. Co., 271 
 
 V. WethereU, 400 
 
 Wall V. Tomlinson, 380 
 Wallace v. Auldjo, 367 
 
 ^^ Pomfret, 461 
 
 Waller v. Dalt, 148 
 Walley v. W., 85, 86 
 Wallinger v. W., 413 
 Wallis r. D. of Portland, 314 
 Walmsley r. Child, 202 
 Walsh r. Wallinger, 39 
 
 r, W., 402 
 
 Walter r. Maunde, 426 
 
 r. Selfe, 656 
 
 Walwyn v. Coutts, 62 
 
 V. Lee, 290 
 
 Ward's Tr., Be, 402 
 Ward r. Audland, 49 
 
 r. Baugh, 421 
 
 V. Beck, 586
 
 TABLE OF CASES. 
 
 xlvii 
 
 Ward V. Gray, 500 
 
 V. Turner, 530 
 
 Warden v. Jones, 60, 594 
 Wardle v. Carter, 147 
 Ware v. Gardner, 57 
 
 V. Grand Junction Co., 590 
 
 r. Regent's Canal Co., 654 
 
 Wakmstrey v. Tanfield, 306 
 Warner, Exp. (4 Bro. C. C. 101), 633 
 Exp. (1 Rose, 286), 258 
 
 V. Baynes, 558 
 
 Warr v. W., 402 
 Warren v. Davies, 500 
 
 V. Rudall, 413 
 
 Warriner v. Rogers, 53 
 r. W., 531 
 
 Waring v. M. S. & L. R. Co., 574 
 
 V. Ward, 498 
 
 Waterer v. W., 541, 542 
 Waterfall v. Penistone, 232 
 Waters v. Taylor, 550 
 Wathen v. Smith, 459 
 Watkins v. Steevens, 58 
 
 V. Williams, 556 
 
 Watson V. Allcock, 332 
 
 t'. Brickwood, 497 
 
 V. Knight, 63 
 
 r. Marshall, 372 
 
 V. Marston, 574 
 
 V. Reid, 608 
 
 V. Swift, 429 
 
 V, W., 450 
 
 Watt V. Grove, 97 
 Watts V. Bullas, 197 
 
 V. Creswell, 168 
 
 V. Girdlestone, 1 1 
 
 V. W., 432 
 
 Way V. East, 37 
 Webb V. Grace, 162 
 
 V. Hewitt, 322, 325 
 
 V. Hughes, 606, 607 
 
 V. Jones, 499 
 
 V. L. & P. R. Co., 574 
 
 V. E. of Shaftesbury, 125 
 
 T'edderburn v. W., 93 
 
 iWedgwood v. Adams, 574 
 
 [Weeding v. W., 433 
 
 IWeeks v. Gore, 492 
 
 IWeiss V. Dell, 128 
 
 |\Veld V. Hornby, 657 
 
 ]Wellesley v. Beaufort, 388, 389, 393 
 
 V. Mornin^ton, 170 
 
 V. W., 397, 641, 647 
 
 IWells V. Maxwell, 606, 607 
 
 [West of E. Bk., Re, 495 
 
 [West V. Errissey, 190 
 
 ■ V. Francis, 670 
 
 ■ V. Shuttleworth, 28 
 ^Westby v. W., 183 
 
 '^astern of Canada &c. Co., fn re, 95 
 
 Westley v. Clarke, 120 
 
 Weston's Case, 74 
 
 Wetherall, Exp., 258 
 
 Wheateley c. Slade, 616 
 
 Wheatley v. Westminster &c. Co., 589 
 
 Wheeler v. Caryl, 379 
 
 Wheelton r. Hardisty, 143 
 
 Wheldale v. Partridge, 424, 431, 439, 
 
 442 
 Whichcote v. Lawrence, 90 
 Whieldon x. Spode, 497 
 Whistler v. Newman, 123 
 
 r. Webster, 409, 414, 415 
 
 Whitbread, Exp., 262 
 Whitchurch v. Bevis, 593 
 White f. Baugh, 109 
 
 v. Briggs, 34 
 
 V. Carter, 47 
 
 V. Hillacre, 254 
 
 V. Simmons, 264 
 
 V. Wakefield, 273, 275 
 
 V. W., 497 
 
 Whitfield r. Fausset, 200, 203 
 Whiting V. White, 225 
 Whitney ?•. Smith, 132 
 Whittaker v. Howe, 544 
 Whittencore v. W., 617 
 Whitton V. Russell, 201 
 Whit well V. Arthur, 550 
 Whitworth v. Gangain, 250, 262 
 Whorwood v. Simp.son, 610 
 Whyte V. W., 456 
 
 Wicks V. Hunt, 576 
 Widgery v. Tepper, 381 
 Wigg f. W., 280 
 WiLCOCKs V. W., 462 
 Wild V. Wells, 557 
 Wilday v. Sandys, 105 
 Wilding V. Richards, 62 
 Wilkes V. Holmes, 196 
 Wilkinson x. Charlesworth, 371 
 
 X. Dent, 411, 420 
 
 X. Duncan, 107 
 
 X. Joberns, 562, 567 
 
 V. Parry, 123 
 
 V. Sterne, 475 
 
 X. W., 127 
 
 Willan X. W., 181 
 Willesford v. Watson, 589 
 Willcock X. Terrell, 314 
 Williams, Exp., 240 
 
 r. Bolton, 648 
 
 X. Davies, 479 
 
 V. Games, 563 
 
 X. Higden, 616 
 
 X. Lambe, 291 
 
 X. Lonsdale, 130 
 
 X. Owen, 219, 333 
 
 V. Sorrell, 221 
 
 r. W. (32 Beav. 370), 73
 
 xlviii 
 
 TABLE OF OASES. 
 
 Williams v. W. (15 Eq. 270), 490 
 
 _ v. W. (2 Dr. & Sm. 596), 596 
 
 V. W. (2 Dr. & S. 378 ; 2 Ch. 
 
 294), 182 
 
 V. W. (15 Ves. 419), 637 
 
 Williamson r. Barbour, 96 
 
 — V. Gordon, 241 
 
 Willie V. Lugg, 254 
 Willis r. Jeniegan, 482 
 
 V. Keble, 128 
 
 Willmott V. Barber, 573 
 Willock r. Noble, 341 
 WiUoughby r. W., 289 
 Wills r. Slade, 555 
 
 V. Stradling, 593 
 
 Wilmot r. Pike, 252, 289 
 Wilson r. Cluer, 236, 237 
 
 V. Dunsany, 490 
 
 r, Furness R. Co., 588 
 
 V, Maddison, 526 
 
 V. Metcalfe, 236, 237 
 
 V. O'Leary, 456 
 
 V. Piggott, 195 
 
 V. Townsend, 421 
 
 V. W. H. E. Co., 595 
 
 . V, W., 589 
 
 Wilton V. Hill, 353 
 Wiltshire v. "Rabbits, 311 
 Winch t\ Winchester, 601, 615 
 Winchester (B. of) v. Knight, 647 
 
 V. Paine, 285 
 
 Windham r. Jennings, 252 
 
 V, w., 455 
 
 Wing V. Harvey, 210 
 Winter r. Anson, 270, 272 
 Withernsea Brickworks, Re, 495 
 Witty r. Marshall, 394 
 WoUaston v. King, 413, 416 
 
 r. Tribe, 60 
 
 Wollen r. Tanner, 415 
 Wood's Estate, Re, 86 
 Wood V. Briant, 460 
 
 r. Griffith, 616 
 
 V. Ordish, 499 
 
 V. Penoyre, 526 
 
 r. Rowcliffe, 583 
 
 r. SutcUffe, 635 
 
 V. Zimmer, 663 
 
 Woodhouse r. Shepley, 163 
 
 V. Walker, 641 
 
 Woodmeston v. Walker, 352 
 
 Woods V. Huntingford, 505 
 Woodward v. W., 348 
 Wooldridge v. Norris, 684 
 Woollam V. Hearn, 599 
 Woolridge v. W., 415 
 Woolscombe, Re, 393 
 Woolstencroft v. W., 507, 508 
 Wortham r. Pemberton, 369, 395 
 Worthington v. Evans, 281 
 
 .^ V, Morgan, 273 
 
 Worrall r. Harford, 121, 126 
 Wray's Tr., Re, 379 
 Wray v. Hutchinson, 551 
 Wren v. Bradley, 164 
 Wright, Exp., 258 
 
 V. Atkyns, 645 
 
 V. GoS, 188 
 
 V. Hitchcock, 665 
 
 V. Hunter, 544 
 
 r. Laing, 475 
 
 V. Lambert, 107 
 
 — V. Morley, 370 
 
 V. Pearson, 41 
 
 V. Rose, 427 
 
 r. Rutter, 373 
 
 V. Simpson, 684 
 
 V. Vanderplank, 92, 155 
 
 V. w. (2 J. & H. 655), 352 
 
 V. W. (16 Ves. 188), 438 
 
 Wrigley v. Sykes, 299 
 Wyatt r. Sharratt, 111 
 Wyke V. Rogers, 322 
 Wyllie V. Pollen, 284, 285 
 Wyndham v. Richardson, 252 
 
 V, w., 394 
 
 Wynne v. Hawkins, 35 
 
 r. Price, 585 
 
 Wynstanley v. Lee, 655 
 Wythe r. Hfenniker, 276 
 Wythes r. Lee, 276, 277 
 
 Yem v. Edwards, 83 
 
 York &c. Co. r. Artley, 264 
 
 Buildings Co. v. Mackenzie, 100 
 
 (M. of) V. Pilkington, 632, 685 
 
 Young V. English, 474 
 
 ??. Macintosh, 43 
 
 V. Y., 558, 562 
 
 Younge v. Furze, 161
 
 THE PRINCIPLES OF EQUITY. 
 
 INTRODUCTION. 
 
 I. Design of the Work. 
 II. Division of the Subject. 
 
 I. The design of this work is to present within mode- Design of 
 rate dimensions as complete a view of English equitable 
 jm-isprudence as is necessary for meeting the requirements 
 of the examinations in this subject, and for a clear under- 
 standing of the cases which most frequently present them- 
 selves in the practice of the profession. 
 
 For this purpose it has not been deemed necessary to Not his- 
 enter into the attractive subject of the history of equity. 
 To do this effectively would require more space than could 
 well be spared in a work of moderate dimensions, the 
 contents of which must necessarily extend over a wide 
 field of inquiry; and to attempt to compress so extensive a 
 subject within very narrow limits would perhaps be worse 
 than useless. Occasionally, indeed, something in the 
 nature of an historical retrospect is necessary for the 
 explanation of certain features of the jurisprudence ; and 
 in these cases, for instance in introducing the subject of 
 trusts, we have, as concisely as has seemed to us consistent 
 with clearness, narrated the steps by which the jurisdic- 
 tion has become established. Such glances at history, 
 however, are only introduced as ancillary to the compre- 
 hension of the principles concerned, and are not designed 
 
 B
 
 INTROnUCTION. 
 
 Classifica- 
 tion and 
 division of 
 the sub- 
 ject. 
 
 Story's 
 division 
 obsolete. 
 
 Jud. Act. 
 1873, 
 ss. 24, 25. 
 Exclusive 
 jurisdic- 
 tion. 
 
 to serve the purposes of those who desire to be well in- 
 formed respecting the origin and growth of the jurisdiction 
 of the Court of Chancery. 
 
 II. It is a truism to say that a treatise designed as an 
 exposition of so complex and intricate a subject as 
 equitable jurisprudence requires to be systematic in form. 
 Its multitude of details can only be brought within the 
 reach of an ordinary memory through the means of a most 
 careful classification. Yet to devise a system of classifi- 
 cation which shall be at once logical, adequately compre- 
 hensive, and simple, is a problem of no slight difficulty ; 
 and scarcely two writers have agreed in its solution. 
 
 The division which is perhaps most familiar to modern 
 students is that of Story, which distinguishes be- 
 tween the concurrent, the exclusive, and the auxiliary 
 jurisdiction of the Courts of equity. This classifica- 
 tion has in the main been followed in Snell's " Principles 
 of Equity." It would be a presumption here to praise or 
 criticise the conclusion of so great a writer, and it argues 
 no disrespect for it that it is not here followed. However 
 excellent a division at the time at which it was devised, it 
 has, we think, ceased to be appropriate, simply because 
 recent legislation has caused it to cease to be true. Since 
 it has been enacted (a) that in every civil cause or matter 
 commenced in the High Court of Justice law and equity 
 shall be administered concurrently, and that whenever 
 there is a conflict between the rules of common law and 
 those of equity the rules of equity shall prevail, it is 
 plainly an anachronism to speak of the exclusive jurisdic- 
 tion of Courts of equity. It is indeed true that by the 
 same Act {h) certain matters are specially assigned to the 
 Chancery Division, and to the other divisions of the High 
 Court respectively; but that this special assignment does 
 not establish anything of the nature of an exclusive juris- 
 diction is plain : " All the judges of the High Court have 
 
 25. 
 
 ((() 36 & 37 Vict. c. 66, ss. 24, (h) s. 34.
 
 DIVISION OF THE SUBJECT. 3 
 
 the same jurisdiction, and it is clear that any judge may, 
 if he chooses, when an action has been brought in the 
 wrong division, retain the action and exercise the juris- 
 diction " (c). 
 
 Still more completely have the Judicature Acts put an Auxiliary 
 end to the auxiliary jurisdiction of equity as such. For- ^0^^ ^''' 
 merly there were many cases in which, though the common 
 law remedies were sufficient, and the jurisdiction of Courts 
 of common law was accordingly exclusive, yet it was 
 necessary for one of the parties to have recourse to equity 
 in order to procure requisite evidence for the successful 
 assertion of the legal right. The jurisdiction of equity in 
 these cases rested on the peculiarities of its procedure, and 
 extended no further than was necessary to enable the party 
 to maintain his position at law. The most important 
 illustration of this branch of the jurisdiction was afforded 
 by the stringent powers of equity to enforce discovery. 
 But the Judicature Acts having established a system of 
 procedure common to Courts of law and to those of 
 equity, giving to the former identically the same powers as 
 are enjoyed by the latter, it can no longer be necessary for 
 any one whose action lies at law to seek for any prelimi- 
 nary or auxiliary aid in equity. 
 
 Not only, moreover, is the division of equitable jurisdic- 
 tion into exclusive, concurrent, and auxiliary now obsolete, 
 but we may perhaps venture to remark that it somewhat 
 tended to confuse the student by treating as co-ordinate 
 matters of substance and matters of form ; placing side by 
 side as correlative divisions of the subject titles so incon- 
 gruous as trusts and injunctions, mortgages and inter- 
 pleaders. 
 
 Yet, notwithstanding the fusion of law and equity which I^^w and 
 
 1 n 1 T T » 1 • ££• X 1 equity still 
 
 has by the Judicature Act been m a great measure errected, distinct, 
 the distinction between the two systems must still, for 
 many purposes, be regarded. As long, at least, as the 
 
 (c) Finney v. Ilimf, 6 Ch. D. 98, 100, 101, per Jessel, M.R. 
 
 b2
 
 INTRODUCTION. 
 
 terms law and equity are contrasted by examiners, the 
 student must continue to contemplate them as distinct. 
 And further than that, notwithstanding their present 
 concurrent adminiistraUon, the distinction remains sub- 
 stantial and real. The differences between legal and 
 equitable estates and interests and principles continue to 
 exist, and to produce most important results, and if we 
 were to cease to indicate the contrast by the terms legal 
 and equitable, we should have to invent some others for 
 the purpose. 
 
 Accordingly it has been found repeatedly necessary for 
 the purposes of classification to refer separately to the 
 treatment of questions by law and by equity, and in other 
 respects to contrast the two systems. It would have been 
 tedious in every such case to remind the student of the 
 provisions of the Judicature Act : it suffices once for all to 
 call attention most emphatically to the change. 
 
 It is perhaps impossible in dealing with such a subject 
 as equity to avoid cross-divisions. The principle of trusts, 
 for instance, reaches to almost all parts of the jurisdiction. 
 The whole subject of mortgages might be treated as one 
 sub-division of it; the remedies for fraud chiefly operate 
 through its application ; the law respecting married women 
 and infants continually makes reference to it ; and yet it 
 would be obviously absurd in writing of equity not to treat 
 such matters as mortgages and the separate estate of 
 married women under completely distinct titles. 
 
 A mutually exclusive classification of the subject matter 
 of equity must not, then, be expected. The best that can 
 be done is to lay hold of the leading distinctions between 
 the various branches of the jurisprudence, and in the 
 separate investigation thereof to clearly indicate their 
 relation one to another. Story has sub-divided his head- 
 ing of concurrent jurisdiction into two branches, the one 
 where the subject matter constitutes the principal ground 
 founded on of the jurisdiction ; the other where the peculiar reme- 
 difference ^^igg administered in equity constitute the principal ground 
 
 Cross- 
 divisions 
 unavoid- 
 able. 
 
 Distinc- 
 tion 
 
 })etween 
 the juris- 
 diction
 
 DIVISION OF THE SUBJECT. O 
 
 of iurisdictiou (e). Under the chang-ed circumstances °^ ^"^" 
 
 1 r- 11-11 -1 ... stantive 
 
 above referred to, which have made all equitable jurisdic- principle, 
 
 tion concurrent, this now commends itself as an exceed- ^"0^1^^^' 
 iugly apt and expressive division of the whole subject, founded on 
 It will be observed that it coincides with Bentham's remedies. 
 famous division of law into substantive and adjective law. 
 Though it will often, and indeed generally, be seen that 
 the distinctive principles and the distinctive remedies of 
 equity have acted in combination in establishing the 
 various branches of its jurisdiction, yet the contrast between 
 those matters in which the substantive doctrines of equity 
 form the most conspicuous feature, and those in which the 
 peculiarities of its procedure are most prominent, is suffi- 
 ciently marked to form the groundwork of a scientific 
 classification of the whole jurisprudence. 
 
 Adopting this as our main division, the work naturally Adopted. 
 divides itself into two parts. Part I. will comprise those 
 subjects the jurisdiction of equity respecting which origi- 
 ginated in, or chiefly rests on, a substantive difference 
 between its principles and those of the ancient common 
 law. Part II. will comprise those branches of the juris- 
 diction which have arisen chiefly from the peculiarities of 
 its procedure or remedies. 
 
 (e) See Story's Eq. Jur. preface, and s. 77.
 
 PART I. 
 
 WHERE THE JURISDICTION RESTS ON THE DISTINCT 
 SUBSTANTIVE PRINCIPLES OF EQUITY. 
 
 INTRODUCTION. 
 
 I. Meaning of tlie ivord Equity. 
 II. Distinctions between Equity and Law. 
 
 1. Equity acts "in Personam." 
 
 Penn v. Lord Baltimore. 
 E. of Oxford's Case. 
 
 2. Equity looks to the Intent rather than 
 to the Form. 
 
 8. Equality is Equity. 
 III. Contents of Part I. 
 
 I. Meaning of the ivord Equity. 
 
 Almost every writer on equity has been careful to guard Ambiguity 
 against the errors which are latent in the ambiguity of the word 
 term equity. Equity, in common parlance, or what may "equity. 
 be called its ethical sense, is an abstract name for that ggnse 
 which is just, honest, and right, answering very closely to 
 the definition given in Justinian's Institutes of Justice, 
 " Justitia est constaiis et perpettta voluntas jus suum 
 cuique tribuendi." 
 
 It is sufficiently evident that in this broad sense e(][uity far too 
 includes a multitude of matters which are altogether tensive for
 
 8 MKANING OF '' Kt^UlTV. 
 
 jurispni- bevond the cognizance of practical jurisprudence. It 
 reaches quite across the field of morality, over only a 
 small portion of which have legal tribunals ever asserted 
 authority. 
 
 It is equally plain that were a Court established to 
 decide disputes under the very indefinite guidance of this 
 wide principle, the character of its decisions would be 
 continually varying in accordance with the characters of 
 the judges. Different views on philosophical questions of 
 great intricacy would lead to conflicting sentences respect- 
 ing the same course of conduct. Such a tribunal might 
 usefully mete out a rude justice to an uncivilised tribe, 
 but could only be productive of wild disorder in the 
 complex circumstances of organised and civilised society. 
 
 Equity a The term equity has also been used to indicate 
 
 principle .., „ ... t- -tip 
 
 of peueral a prmciple ot general justice as distinguished irom strict 
 justice. jg^^y . Qj. ^g modifying or mollifying the operation of the 
 hard and fast rules of law, in consideration of certain 
 circumstances, in which their rigid application would work 
 hardship. To this effect is Papinian's definition of the 
 praetorian law, " Adjuvandi, vel supplendi vet corrigendi 
 juris civilis gratia" (/). This doubtless comes some- 
 what nearer to the true definition of ec[uity as a technical 
 term of English jurisprudence ; and as a matter of history 
 some of the branches of equitable jurisprudence doubtless 
 arose from efforts of the chancellors which might be well 
 Also too described in this languao-e. But it is nevertheless very 
 
 wide and . . . . 
 
 indefinite, far from beiug an accurate expression of what is now 
 meant by equity. On the contrary, it is probable that 
 more cases of admitted hardshiiJ now occur in the Courts 
 of equity themselves than in the Courts of common 
 law : not indeed because equitable principles are more 
 defective than those of law, but because the facts to which 
 they have to be applied are of a more complex and ever 
 varying description. From this reason it constantly 
 
 (/) Dig. I. 1. 7.
 
 MEANIXG OF " EQUITY." 9 
 
 happens that cases come before the Court which have not 
 been foreseen and provided for by legislation, whether 
 judicial or statutory, but which must nevertheless be 
 decided on fixed principles, in order to avoid the greater 
 evil of a general ignorance or uncertainty as to what is, 
 and what is not, lawful. 
 
 In short, it is necessary in an advanced and civilised ^^^^'^ °^"8* 
 community that the laws administered by its Courts minate, 
 should be fixed and determinable at least approximately ; 
 the more clearly determinable, the more perfect the juris- 
 prudence.. This being so, it is obviously impossible to and cannot 
 summarise those laws in a oeneral definition or maxim. ^""\' . 
 
 * mansed m 
 
 No one would dream of describino- the law of England or a defini- 
 of anj^ country in a single sentence. No more possible is 
 it to describe the equity of England in a single sentence. 
 It is indeed sufficiently difficult to do so in a large volume. So equity 
 All that can be said respecting equity in a general form is defined. 
 that it is that portion of the law of England which in the Its mean- 
 course of a long history gradually came to be administered En^dish 
 in the High Court of Chancery. In so far as the Judi- jurispru- 
 cature Act has fused equity and law, equity has no longer 
 any distinctive meaning, except as indicating those prin- 
 ciples which were previously distinct from those of common 
 law^ 
 
 II. Distinction betiveen Equity and Law. 
 
 But the distinction between law and equity has been 
 clearly marked, and has exercised a very important influence 
 in the development of our legal system. Upon it the Distinc- 
 division of our subject is based, and it is therefore at the clpLs^" 
 outset incumbent upon us to indicate what the leading law and 
 principles are in which equity for generations so far differed 
 from common law as to have constituted a separate branch 
 of the science of jurisprudence. Hereafter it will be neces- 
 sary to advert to the peculiarities of equitable procedure ; 
 at present the question is, what are the substantive diflfer-
 
 10 
 
 UISTIN'CTION BETWEEN LAW AM) EQUITY, 
 
 expressed 
 by maxims. 
 
 Different 
 meanings 
 of " in 
 personam,' 
 
 JUS m 
 personam, 
 
 actio in 
 personam, 
 
 judgment 
 in per- 
 sonam. 
 
 enccs between equity and law which have been chiefly 
 material in building up the most conspicuous parts of 
 equitable jurisdiction. 
 
 These principles have usually been expressed by text- 
 writers in a series of maxims, which are often quoted by 
 judges in Courts of equity. It is only requisite here to 
 allude to and explain the most important of these. Others 
 of less influence will be referred to in the subsequent por- 
 tions of our investigation. 
 
 1. Equity acts " in personmn." 
 
 The expression "in personam" is employed in juris- 
 prudence in a variety of connexions, and with a variety 
 of shades of meaning. In this maxim its signification is 
 somewhat different from that which it bears in other and 
 equally familiar contexts. Students of jurisprudence are 
 familiar with the distinction between jus in rem and jus 
 in personam, the former indicating a right available 
 against all the world, or people generally ; such rights, for 
 instance, as that which a man has to his life, his property, 
 and his reputation ; the latter indicating a right which 
 can only be asserted against a particular person or a 
 definite number of persons, such as a right arising from 
 contract, or a right to damages against a person who has 
 infringed or violated a jus in rem, or in other words has 
 committed a tort. Analogous to this distinction is that 
 between an actio in rem and an actio in personam, so 
 often appearing in the study of Koman law, the former 
 being an action in which the plaintiff claims as against all 
 the world that some particular thing corporeal or in- 
 corporeal is his, the latter an action in w^hich he asserts 
 his claim to an act or forbearance on the part of the indi- 
 vidual defendant. The same expression appears also in 
 English common law, which once recognised a distinction 
 between real and personal actions, and which still dis- 
 tinguishes between a judgment in rem and a judgment 
 inn personam, the former being a judgment executed by 
 a compulsory delivery of the specific subject matter in
 
 EQUITY ACTS IN PERSONAM. 11 
 
 dispute to the plaintiff, the latter a judgment executed 
 by constraining the person of the defendant. 
 
 But in saying that equity acts in personam, we use these In these 
 words with a meaning somewhat different from any of^^^!,tL„ 
 
 tj */ colli 111 On 
 
 these. Equity protects j ura in rem as well as jura in ^a^ acts in 
 personam. In the sense which distinguishes actions in as well as 
 rem from actions in personam, common law quite as often ^'i^"*y- 
 and as fully as equity acts i7i personam. It is ec[ually 
 concerned with rights in personam, and it equally enforces 
 its decisions by judgments and processes in persona^mi. If 
 this were all that it meant, the maxim under considera- 
 tion would guide us to no differentiating principle what- 
 ever. 
 
 But this is not all ; there are at least two senses in which Equity 
 equity acts in personam in which it was not imitated by decrees as 
 the Courts of common law. In the first place, regarding personal 
 
 commands, 
 
 its decrees as commands addressed to the defendant per- 
 sonally, rather than as decisions directly affecting the 
 subject matter of the dispute, it carried the consequences and carries 
 
 of this view much further than did the Courts of common conse- 
 quences OI 
 
 law. this farther 
 
 Of this there are two conspicuous illustrations. First 
 
 the jurisdiction of equity in suits respecting land situated 
 
 out of its jurisdiction. Secondly its jurisdiction to restrain 
 
 proceedings at law. 
 
 The leading authority on the first of these matters is — Illustra- 
 tions. 
 
 PENN V. LORD BALTIMORE. Pewnv. 
 
 [I Ves. sr. 444; 2 W. & T. L. C. 939.] Baltimore. 
 
 This case was founded on articles entered into between 
 the plaintiffs and the defendant containing particular provi- 
 sions for settling land in America by drawing certain lines 
 as therein specified, and that commissioners should do this 
 within a specified time. The bill sought specific per- 
 formance and execution of these articleSi 
 
 Lord Hardwicke, after an elaborate judgment, decreed 
 that the relief sought might be granted, on the ground
 
 12 
 
 EQUITY ACTS IN PERSONAM. 
 
 Situs ot the 
 subject 
 matter im- 
 luaterial. 
 
 if defen- 
 dant is 
 within the 
 jurisdic- 
 tion. 
 
 Remedies 
 granted 
 respecting 
 property 
 out of the 
 jurisdic- 
 tion. 
 
 Limits f)f 
 the juris- 
 diction. 
 
 (inter alia) that though the agreement could not be en- 
 forced in rem, tlie strict primary decree in that Court was 
 in personam; and the defendant being in England it 
 could be enforced by process of contempt in 'personaTYi 
 and sequestration, which was the proper jurisdiction of the 
 Court. But the Court refused to decree quiet enjoyment 
 of the lands, application for that purpose being proper 
 only to Courts having jurisdiction over the land itself 
 
 There are a great number of cases in which the jurisdic- 
 tion here explained and established has been exercised, and 
 they show that it is not confined to cases where the pro- 
 perty in question appertains to the English Crown, as was 
 the case there. It is evident from the principle and modus 
 operandi of that judgment that it would be as applicable 
 where the property concerned was strictly foreign as where 
 it was in Scotland or in the colonies. The sole require- 
 ment is that the party should be within the jurisdiction, 
 and so subject to the jDrocess of the Court (g). 
 
 In the exercise of this jurisdiction the English Chancery 
 has with regard to foreign lands decreed an account of 
 rents and profits between joint tenants (h), enforced specific 
 performance of contracts of sale (i), foreclosed mort- 
 gages (j), declared proprietors trustees (k), ordered recon- 
 veyances and releases of lands fraudulently acquired (l), 
 entertained bills for discovery of rents, profits, and deeds, on 
 the ground of fraud (m), and restrained by injunction the 
 prosecution of suits commenced in the situs for the recovery 
 of immoveables (n). 
 
 The limits of this jurisdiction also well illustrate the 
 maxim in question. They have been concisely laid down 
 
 {ff) Maunder v. Lloyd, 2 J. & H. 
 718 ; ToUer v. Carteret, 2 Vera. 494 ; 
 Paget v. Ede, 18 Eq. 118. 
 
 (h) Carteret v. Pettiis, 2 Ch. Ca. 
 214 ; 2 Swanst. 323, n. 
 
 (i) Archer v. Preston, cited 1 
 Vern. 77 
 
 (j) Toller V. Carteret, 2 Vern. 
 494. 
 
 {k) Kildare v. Eustace, 1 Vern. 
 419. 
 
 (?) Cranstcnvn v. Johnston, 3 Ves. 
 170. 
 
 {m) Angus v. -4 w^?<s, West's ca. t. 
 Hardw. 23. 
 
 (n) Bunhunj v. Eunhuri/, 1 Beav. 
 318.
 
 EQUITY ACTS IN PERSONAM. 13 
 
 as follows '. " The claim to affect foreign lands through the 
 person of the party must be strictly limited to those cases 
 in which the relief decreed can be entirely obtained 
 through the party's personal obedience ; if it went beyond 
 that, the assumption would not only be presumptuous 
 but ineffectual." And again, though this power is not 
 restrained by the absence of a similar equity in the lex 
 situs, it cannot be exercised where it is absolutely excluded 
 thereby. " If the lex situs excludes such equity, then the 
 right to hold the land free from it becomes one of the 
 incidents of property " (o). 
 
 Thus, where the lands are out of the jurisdiction, although Reme- 
 
 , , . , 1 • 1 /-( T 1 ^r> ^^^^ which 
 
 they be m the colonies, the Court cannot directly anect will not be 
 them. Its action in such cases is strictly and solely in S'^^^^'^'^- 
 personam. It follows that a suit which would require 
 direct dealing with foreign or colonial land cannot be 
 entertained. Thus a partition of land in Ireland will 
 not be decreed in England, as no power could be given to 
 a commission to take the necessary steps there for carrying 
 out the decree (p). The distinction between such a bill 
 and that in Pcnn v. Lord Baltiiniore is sufficiently clear ; 
 for though in this case the ultimate result might be 
 expected to be a somewhat similar dealing with foreign 
 land, the matter expressly and immediately before the 
 Court was simply the agreement of the parties. Its 
 decree was directed merely to the enforcement of the 
 articles, and could not involve the Court in any direct 
 dealino- with the lands. It has been observed that on this 
 
 o 
 
 ground Lord Hardwicke would not include in the decree 
 a direction for quiet enjoyment, and that he expressly 
 disclaimed any original jurisdiction of the Court to settle 
 boundaries out of the jurisdiction {q). 
 
 As to the jurisdiction to restrain proceedings at law, the 
 most celebrated authority is — 
 
 (o) Westlake's Pr. Inter. Law, (7) See, however, Tidlock v. 
 
 64, 65. Ilartle;/, 1 Y. & C. C. C. 114. 
 
 {p) Carteret v. Pettns, s«p.
 
 14 EQUITY ACTS IN PERSONAM, 
 
 £arlof THE EARL OF OXFORD'S CASE. 
 
 case. [1 Ch. Rep. 1 ; 2 W. & T. L. C. 590.] 
 
 Restraint In this case a bill was filed in equity in respect of a 
 ingratlaw' flatter which had been already tried at law ; and after the 
 filing of the bill judgment was entered at law. The 
 defendants demurred, relying mainly on the judgment as 
 barring the relief in Chancery ; but it was overruled by 
 Lord Chancellor Ellesmere, who said that there was no 
 opposition to the judgment, nor would the truth or justice 
 of the judgment be examined, but yet the chancellor 
 might, where a judgment was obtained by oppression, 
 wrong, or a hard cod science, restrain the person in whose 
 favour it was issued from proceeding upon it. 
 
 We shall elsewhere (pp. 623-31) have to consider what 
 remains of this peculiar jurisdiction. At present it suffices 
 to refer to it as an illustration of the extent to which equity 
 carries the principle that its decrees are personal com- 
 mands. 
 
 Both of these cases, it is true, were based upon the 
 peculiar remedies of the Court; but it has nevertheless 
 been considered convenient to refer to them here as 
 striking illustrations of the general maxim. 
 Equity Equity, however, acts in persotiam in another sense, 
 
 conscience, fi'om which proceeds a large proportion of the substantive 
 distinctions between equity and law. Equity acts on the 
 conscience of the parties before it. It regards them not as 
 mere passive subjects, whose position is arbitrarily deter- 
 mined by the application of categorical rules of law, but 
 as moral agents, bound in conscience to act in good faith 
 one with another. As already said, this is far from seek- 
 ing to miscellaneously enforce moral duties. The limits 
 of the jurisdiction of equity are now clearly defined, and 
 beyond them it is as powerless as common law. But as an 
 historical fact many of the doctrines and much of the prac- 
 tice of equity have originated in this moral view which it
 
 OTHER MAXIMS. 15 
 
 has taken of the parties before it. Thus originated its Conse- 
 
 ^ , *^ . queiices of 
 
 enforcement of the execution of trusts, its narrow scrutiny this, 
 of all circumstances that savour of fraud, its relief against 
 hardships arising from unavoidable accidents and innocent 
 mistakes. As these various subjects and others have 
 presently to be considered in detail, it is now only neces- 
 sary to mention them as illustrations of those views which 
 have been, until recently, peculiar to Courts administering 
 equity^ as distinguished from law. 
 
 Springing from this maxim, as considered in this sense, Derivative 
 If 1 • T 1 TT 1 maxims. 
 
 are others of a more detailed character, such as " He who 
 seeks equity must do equity," " He who comes into equity 
 must come with clean hands." " Vigilantihus non dor- 
 mieiitibus ceqidtas siibvenit." The particular application 
 of these will be hereafter seen. It suffices now to remark 
 that they evidently spring from the broad equitable prin- 
 ciple of imposing on its suitors a due regard for the obliga- 
 tions dictated by conscience. 
 
 2. Equity looks to the intent ratlier than to the form. 
 
 This maxim is also of great importance and of wide 
 application. It would indeed be a great error to suppose 
 that its converse would truly describe the principle of the 
 common law. In many respects the Courts of law have This also 
 been indifferent to matters of form in their vigilance to farther in 
 carry out the true intentions of parties. But equity has equity 
 
 . . . . . . than m 
 
 certainly carried the j^rinciple much further. Thus origi- law. 
 nated tlie extensive jurisdiction as to mortgages : law, 
 guided by the form only, treated such assurances as abso- Conse- 
 lute conveyances, and they have accordingly always ope- 
 rated as conveyances of the legal estate ; but equity, 
 considering the intention of the transaction to be only to 
 effect a security for a money loan, relieved from the con- 
 sequences of the legal transfer by creating the estate known 
 as the equity of redemption. From the same principle 
 has sprung the jurisdiction to relieve against penalties and 
 forfeitures generally. 
 
 From this maxim also two others have sprung as Derivative
 
 IQ OTHER MAXIMS. 
 
 corollaries : " Equity looks on that as done which ought 
 to have been done:" and " Equity imputes an intention 
 to fulfil an obligation." Applyii g the principles thus 
 expressed, agTeements to convey have been treated as 
 equitable conveyances, effect being given to them through 
 the medium of the doctrine of trusts ; the doctrine of con- 
 version has arisen, by virtue of which money covenanted 
 or devised to be laid out in land has been treated as land, 
 and vice versa. The doctrines of satisfaction and per- 
 formance may be traced to a similar origin. 
 
 EquaUty is 3. Equality IS Equity. 
 
 equity. rpj^^-^ jj^^^im is certainly of a narrower scope than those 
 
 we have been considering ; but its influence is nevertheless 
 
 lUustra- apparent in many branches of the jurisdiction. Under the 
 
 tions. head of resulting trusts we see an instance of this in the 
 tendency to regard a survivor of joint tenants as trustee 
 for the representatives of those who are deceased, as well 
 in the case of joint mortgages as in that of a joint purchase 
 where the money has been advanced in unequal shares. 
 In the administration of assets, also, the same principle 
 finds an illustration in the continual efforts of equity to 
 secure an equal division of assets among creditors of dif- 
 ferent degrees. The equitable doctrine of contribution in 
 cases of suretyship is of a similar character. 
 
 Minor 4, Other maxims are often quoted in connexion with 
 
 these as elucidating the general principles of equity : such 
 are " Equity follows the law ; " " Where equities are equal 
 the law shall prevail," " Qui prior est temijore, potior est 
 jure." But these are evidently of much less general 
 application than those above cited. To illustrate them 
 here would necessitate either a repetition, or a trespass 
 upon matter which falls much more appropriately under 
 the detailed consideration of the various subjects before 
 us. They, moreover, add but little information to our 
 present inquiry, which has been to ascertain what are the 
 distinctive principles of equity. 
 
 III. For our present purpose we think this inquiry is 
 
 maxims.
 
 CONTENTS OF PART I. 17 
 
 sufficiently answered by the three leading maxims above 
 quoted, with the illustrations given under each. These Contents 
 direct us to the following subjects as falling under the first 
 division of our work ; that is to say, as falling within the 
 jurisdiction of equity chiefly on the ground of its distinctive 
 substantive principles. 
 
 1. Trusts. 
 
 2. Frauds. 
 
 3. Equitable relief against the consequences of Accident 
 
 and Mistake, 
 
 4. Relief against Penalties and Forfeitures. 
 
 5. Mortgages and Liens. 
 
 6. Sui'etyship. 
 
 7. Modifications of the Law as regards Married Women's 
 
 Property. 
 
 8. The Guardianship of Infants. 
 
 9. The peculiar doctrines of Election, Conversion, Satis- 
 
 faction, and Performance,
 
 18 
 
 CHAPTER I. 
 
 TRUSTS. 
 
 Section T. — General View. 
 
 I. Historical Outline. 
 II. What may he tlie Subject of a Trust. 
 
 III. Wlio may he a Trustee. 
 
 IV. Who rifiay he a cestui que Trust. 
 
 Charities. 
 V. Classification of Trusts. 
 
 I. Historical Outline. 
 
 Fklei- 1. Students of Roman law are familiar with the device 
 
 irEoman which was resorted to in the later days of the Republic for 
 law. enabling testators to dispose of their property in favour of 
 
 persons who were unable to take it directly by way of 
 inheritance or legacy. Where the civil law threw any 
 impediment in the way of such a disposition as was 
 desired, the practice arose of bequeathing the property to 
 someone who could legally take it, in reliance on, or 
 trusting to his good faith, to carry out the donor's intention 
 with respect to it. Such gifts were known as fidei-com- 
 missa. At first, the only security for their proper execution 
 was the honour of the person so entrusted ; but in the reign 
 of Augustus, though no legal action could be brought for 
 their enforcement, jurisdiction was conferred upon a 
 special praetor to take cognisance thereof, and to carry them 
 into execution. From that time the operation of fidei-
 
 HISTORICAL OUTLINE. 19 
 
 commissa revolutionised the testamentary law of the State, 
 and prepared the way for its later develojDment in directions 
 little thought of at the time of their introduction. 
 
 2. The history of English law presents to us a very Common 
 similar chapter. The common law imposed many restric- strictions 
 tions upon the conveyance and devisinor of landed property, °?^ *^® . 
 
 ■•■ •' _ ° . . alienation 
 
 which the possessors thereof continually exercised their of land 
 ingenuity to escape. Ownership in land the law has never 
 recognised. Whoever was in immediate enjoyment of it 
 could claim only an interest of greater or less extent and 
 duration, subject to the rights of a superior lord, or at any 
 rate of the Crown, as chief and paramount lord of all the 
 soil of the country. It is plain that in many circumstances 
 the power of free disposal of these interests might greatly 
 interfere with such rights, especially with the ultimate 
 right of receiving back the land itself. Particularly was 
 this the case where land was transferred or assigned to a 
 corporate body, such as an ecclesiastical order, or a bishopric, 
 which subsisted perpetually, so that such land could never 
 again revert as vacant or undisposed of to a superior lord. 
 Accordingly, by the statutes of mortmain, lands were pro- Mortmain. 
 hibited from being given for religious purposes. 
 
 3. It was with a view to elude such restrictions that 
 trusts, or as they were anciently called, uses, were intro- 
 duced in England. The device was that the transferor, 
 
 while retaining the legal estate, or conveying it as the law Introduc- 
 allowed, should declare the use of the estate to some third nature of 
 person, affixing on the conscience of the legal owner the ^^^^' 
 duty of carrying into effect such declared intention. By 
 this means it was sought to transfer the beneficial interest 
 in a manner v\,rhich the law would not sanction, or to persons 
 or corporations whom the law would have forbidden to 
 receive it. 
 
 4. As in the case of the fidei-conimiissa of Eoman law, at first 
 these uses or trusts were originally dependent for their on good 
 execution entirely upon the good faith or honour of the ^^^*^- 
 legal owner or trustee. But in the reign of Richard II., 
 
 c 2
 
 20 TRrSTS : GENERAL VIEW. 
 
 Writ of John Waltham, Bishop of Salisbury, who was then Lord 
 sii >pu na. j^ggpg^,^ invented the writ of suhpcena, by which a refrac- 
 tory trustee might he summoned before the Court of 
 Chancery, there to answer on oath the charges of the bene- 
 ficiary or cestui que use. This Court, claiming a special 
 jurisdiction in matters of conscience, enforced the execution 
 of the use or trust, though without affecting to interfere 
 with the ownership at common law. 
 
 The addition of this security for the enforcement of uses 
 soon led to their extensive employment. Though arising 
 from the restrictions on the assignment of freehold land, 
 Extension their principle was equally applicable to other kinds of 
 tnistr ^" property, and trusts of real and personal chattels came into 
 common use. Trusts came also to be employed for other 
 purposes than the beneficial transfer of property. It was 
 often convenient to give an interest to a trustee for the per- 
 formance of some specific duty, such as to convey in a 
 given manner, or to sell for payment of debts, &c. More 
 important still was the application of the doctrine by 
 which landowners obtained the power of devising their 
 estates by will. 
 Statutory 5. go extensive were the inroads thus made on the 
 ferences policy of the law, especially as to the legal incidents of 
 therewith, ^^gj^yrg ajj(j t,he rights of creditoi's and purchasers, that uses 
 and trusts soon became the subjects of statutory inter- 
 ference (a). It is not, however, now necessary to do more 
 than refer to matters so completely obsolete. 
 
 At length it was determined to abolish the application 
 
 of uses to freehold land entirely, and with that intent the 
 
 Statute Statute of Uses (6) enacted that where any person stood 
 
 H Vlii seised of any hereditainents to the use, confidence, or trust 
 
 t'- i^^- of any other person, or of any body politic, such person or 
 
 body politic as had any such use, confidence, or trust, should 
 
 be deemed in lawful seisin of the hereditaments in such 
 
 (a) 1 Rich. III. c. 1 ; 19 Hen. (b) 27 Hen. VIIT. c. 10. 
 \'II. c. 15 ; 26 Hen. VIII. c. 13.
 
 HISTORICAL OUTLINE. 21 
 
 like estates as they had in use, trust, or confidence. The 
 effect of this was at once to convert all uses into legal 
 estates, and thus to bring them within the rules of law. 
 
 The technical meaning of the words employed, however, I'o what 
 prevented the statute from entirely subverting the doctrine referred, 
 of trusts. The words "seised," "seisin," and "heredita- 
 ments " being only applicable to freehold estates, the statute 
 was adjudged not to affect any trusts of personal property "^^t to 
 or chattels, or even leasehold interests in land, or copy- copyholds,' 
 holds. Seeing also that the statute referred only to cases 
 in which one person was " seised, &c., to the use of any 
 other person," it obviously could not affect special uses, i.e., or n'^^^^l 
 uses in which the conveyance was to the trustee for some 
 limited or specific purposes, such as have been mentioned. 
 These trusts, therefore, in which the trustee was not a mere 
 passive owner of a legal estate the benefit of v/hich was 
 secured to someone else, but had active duties to perform, 
 remained as valid as before the statute. 
 
 6, This sweeping Act was, however, no sooner passed Ktfect of 
 than its effect was destroyed by the construction put destroyed * 
 upon it by the judges of common law ; aud the old uses 
 in real property at once reajjpeared under the modern 
 name of trusts. This came about as follows. If there was 
 a feoffment to A. and his heirs to the use of B. and his 
 heirs, then before the statute A. took a legal fee simple, 
 and B. was a cestui que use, who could only seek his 
 remedies in Chancery. After the statute the same limita- 
 tion would secure not only the use but also the legal estate 
 to B. The use would, in short, at once draw to itself the 
 legal estate. But the judges held that where there was a 
 limitation to A. and his heirs to the use of B. and his heirs 
 to the use of (or in trust for) C. and his heirs, then the 
 statute had no effect beyond the use limited to B. It 
 converted the use first declared into a legal estate, but in 
 so doing its power was exhausted, and a second use or 
 trust, declared upon or after the first, remained unaffected 
 thereby. Such being the decision of tlje judges, the Court and con-
 
 22 TRUSTS: GENERAI- VIEW. 
 
 sequent of Chancery asserted the same authority over the first 
 
 ance^or cestui que use as it had previously exerted over the 
 
 trusts. primary assignee, and enforced upon him the execution 
 
 of the second use or trust. Thus it has been said that the 
 
 whole effect of the Statute of Uses was to add four words, 
 
 " to the use of," to every conveyance. 
 
 Trusts having been thus curiously revived, have con- 
 tinued down to the present day; and under the development 
 of the doctrines respecting them which took place under 
 the later chancellors, especially Lord Nottingham, now 
 constitute one of the most advantageous branches of 
 equitable jurisdiction. 
 
 7. It is not necessary to add to this brief sketch a history 
 of the various steps by which trusts have attained their 
 Definition present position in our juris23rudence. Sufficient has been 
 said to indicate the nature of a trust, and to render a more 
 formal definition intelligible. A trust has been defined as 
 a beneficial interest in, or ownership of, real or personal 
 property, unattended with the possessory or legal owner- 
 ship thereof (c). But this is rather a definition of an equit- 
 able estate than of a trust, and it omits to take account 
 of special trusts, such as have been already referred to, in 
 which the object of the trust is the performance of some 
 particular duty rather than the vesting of the beneficial 
 ownership in some person other than the legal owner. A 
 trust is rather a duty deemed in equity to rest on the con- 
 science of a legal owner. This duty may be either passive, 
 such as to allow the beneficial ownership to be enjoyed by 
 some other person, named the cestui que trust, in which 
 case the legal owner is styled a bare trustee ; or it may be 
 some active duty, such as to sell, or to administer for the 
 benefit of some other person or persons ; such as the duties 
 of a trustee in bankruj^tcy. 
 
 (c) 2 Spence, 875.
 
 WHAT PROPERTY MAY BE THE SUBJECT OF A TRUST. 23 
 
 II. What Property may he the subject of a Trust. 
 
 As a general rule property of any kind, legal or personal, Generally 
 may be made the subject of a trust. perty may 
 
 We have seen that trusts arose chiefly in connexion ^f ^toust* 
 with freehold estates. They are equally applicable to Land of 
 copyholds, or to lands subject to any special customs, such any tenure, 
 as gavelkind or borough English. In such cases equity as 
 usual follows the law in its treatment thereof : thus equit- 
 able estates will be guided by the same rules, as to descent 
 for instance, as legal estates in the same land. 
 
 Courts of equity will also, as seen in Penn v. Lord Colonial 
 Baltimore {sup. p. 11), enforce natural equities in and foreio-n 
 contracts respecting colonial or foreign land, provided the ^'^^ °"^y 
 parties be within the jurisdiction and the case admits of a 
 remedy by action in personam (d). But trusts, strictly so 
 called — that is, trusts of the nature of the ancient uses — 
 cannot, it would seem, be engrafted upon foreign real 
 estate, the tenure of which may have no harmony with the 
 principles of English law (e). 
 
 Trusts are applicable to leaseholds, personal chattels, Personal 
 
 • 1 •• r property. 
 
 choses m action, and every description oi personal property, 
 and on the principle that mobilia sequuntur personam, 
 as long as the party is domiciled within the jurisdiction of 
 the Court, it matters not where the property in question 
 is situate. The only limit is that in the case of property 
 lying beyond the reach of the Court the practical obstruc- 
 tions in the way of executing the trust may be sometimes 
 a bar to relief 
 
 (d) No7-ris v. Chambers, 3 De G. (e) Lewin, p. 45, 7th edit. 
 
 F. & J. 584.
 
 24: TRUSTS: GENbKAL VIEW. 
 
 III. Who may be a Trustee. 
 
 Proper In Order to a person being a trustee, he must be capable 
 
 ti^^^l^or" °^ taking and holding the property of which the trust is 
 trustee. declared, and competent to deal therewith. He should 
 also be within the reach of the arm of the Court, or in 
 other words, domiciled within its jurisdiction. 
 Sovereign- (1.) The sovereign may sustain the character of a trustee, 
 so far as regards the capacity to take the estate and to 
 execute the trust. It is not clear, however, by what 
 machinery a trust so vested could be enforced. Probably 
 the only resource for such a purpose would be a petition 
 of right (/). 
 Corpora- (2.) A corporation may now be a trustee, since the 
 ancient doctrine that trusts rested on the foundation of 
 personal confidence has evaporated. There is ample juris- 
 diction in the Coiuts to enforce the performance of its 
 duty by such a trustee (g). The only restriction is that 
 the license of the Crown is necessary for the conveyance 
 of real estate to a corporate body ; and this restriction is 
 as applicable to a bare legal estate as to a beneficial 
 interest, 
 
 A married (3.) A married woman is legally capable of being a 
 trustee ; but her general amenability to the influence of 
 her husband, the fact that he would be liable in case she 
 should commit a breach of trust, and would thus for his 
 own protection be prone to interfere with her in the dis- 
 charge of her duties, and the impediments in the way of 
 her execution of legal assurances, afford suflicient grounds 
 for considering such an appointment undesirable, except 
 for special reasons (h). On similar grounds it is not 
 genemlly advisable to make an unmarried woman a trustee, 
 
 tiOD. 
 
 woman. 
 
 (/) Lewin, 7th e<L, p. 30. (h) Drummond v. Tracy, Johns. 
 
 {y) Att.-Gen. v. St. John's Hosp., 60S, 611. 
 2 De G. J. 4: S. 621.
 
 WHO MAY BE A TltUSTEE. ^-^ 
 
 since, if she should marry, the above disadvantages would 
 at once arise. 
 
 (4.) An infant is under still greater disabilities, having An infant, 
 no legal capacity or discretion. Any of his acts, beyond 
 such as were merely ministerial, would be void. He could 
 not be held guilty of a breach of trust. A case, therefore, 
 is scarcely conceivable in which circumstances could warrant 
 such an appointment. 
 
 (5.) Formerly an alien, being disabled from holding An alien. 
 Eno-lish freeholds or chattels real, could not be a trustee of 
 such. There was never, however, any legal objection to 
 his appointment as trustee of chattels personal ; and since 
 the NatTiralisation Act, 1870 (i), an alien may hold pro- 
 perty of any description, and may accordingly be trustee 
 thereof 
 
 (6.) Bankrupts are not absolutely disqualified from Bank- 
 
 1 • 1 111 1 J.* rupts. 
 
 being trustees, and a person s bankruptcy has no operation 
 upon the trust estate vested in him. The undesirableness, 
 however, of entrusting property to such hands is sufficiently 
 apparent. 
 
 (7.) Lastly, it is a maxim that equity never wants a Equity 
 trustee ; and wherever by the declaration of a party or by ^^^^ a 
 operation of law a trust exists, equity will follow the legal trustee, 
 estate, in whatever hands it may be (except those of a 
 purchaser for value without notice), and enforce the execu- 
 tion of the trust. The lapse of the legal estate has no 
 influence upon the trusts to which it is subject. If the 
 persons named as trustees fail, either by death, or refusal 
 to act, or otherwise, the Court will provide a trustee; and 
 if no trustees are appointed at all, the Court itself assumes 
 the office, and will execute the trust. 
 
 (/) 3-3 Vict. c. 14.
 
 26 
 
 TRUSTS : GENERAL VIEW. 
 
 Generally 
 any one 
 who can 
 hold 
 legally. 
 
 Married 
 women's 
 separate 
 estate. 
 
 The 
 
 sovereiim. 
 
 Alien. 
 
 Corpora- 
 tion. 
 
 Charities. 
 
 IV. Who may he a cestui que Trust. 
 
 1. As a general rule anyone who is capable of taking a 
 legal interest in property may, through the medium of a 
 trust, enjoy an equitable interest therein. But this is not 
 all; for in certain cases persons may take an equitable 
 interest to whom a legal estate could not be similarly 
 limited. 
 
 (1.) Thus an equitable interest may be conferred upon a 
 married woman to her separate use, free from the control 
 or participation of her husband ; while at law no property 
 could be so limited as to exclude the rights of her husband 
 during the coverture. 
 
 (2.) A trust may be declared in favour of the sovereign, 
 without the restriction which formerly existed, that the 
 title of the property so limited should be matter of 
 record. 
 
 (3.) An alien might always have been a cestui que trust 
 of personalty, and therefore, as it was held, of the proceeds 
 of land directed to be sold, which was in equity considered 
 as if it already were in the form of money. Before the 
 Naturalisation Act, 1870 {h), a trust of realty might have 
 been declared in favour of an alien, and might have been 
 enforced by him against all save the Crown. The Crown, 
 however, might have secured the beneficial interest by 
 suit against the trustee. By that Act real property was, 
 as we have seen, placed in this respect on the same footing 
 as personalty, 
 
 (4.) A trust of lands cannot be limited to a corporation 
 save by license from the Crown. There is no such restric- 
 tion to the enjoyment by a corporation of an equitable 
 interest in personalty. 
 
 (5.) A legal estate cannot be limited to the objects of a 
 
 (A) 33 Vict. c. 14.
 
 WHO MAY BE A CESTUI QUE TRUST. 27 
 
 charity, as to the poor of a parish in perpetual succession ; 
 but in a Court of equity, where feudal rules do not apply, 
 the intention of the donor will be carried into effect, unless 
 within the prohibitions of the Mortmain Act (l) as to 
 alienations of land. 
 
 2. Trusts in favour of charities, beincr in some respects Charitable 
 
 Trusts. 
 
 peculiar, require a separate consideration, for which this is 
 a convenient place. 
 
 (1.) Whatever may have been the origin of the equitable ^^ Ehz. 
 jurisdiction as to charities, it was by the statute 43 Eliz. 
 c. 4, that its limits and iniodubs 02')erandi were first clearly 
 established ; and it is to that statute that we must look for 
 a definition of what objects are included under the term 
 " charity " (m). In the preamble thereof the foUowinef What are 
 
 . . . charitable 
 
 objects are mentioned : " The relief of aged, impotent, and objects, 
 poor people ; the maintenance of sick and maimed soldiers 
 and mariners ; schools of learning, and scholars in uni- 
 versities ; the repair of bridges, ports, havens, causeways, 
 churches, sea banks, and highways ; the education and 
 preferment of orphans ; the relief, stock, or maintenance of 
 houses of correction ; the marriages of poor maids ; the 
 supportation, aid, and help of young tradesmen, handi- 
 craftsmen, and persons decayed ; the relief or redemption 
 of prisoners or captives ; the aid or ease of any poor in- 
 habitants concerning payments of fifteens, setting out of 
 soldiers, or other taxes." The term charity in the sense 
 in which it is used in Courts of equity includes only such 
 bequests as are within the letter and spirit of this enume- 
 ration {n). The tendency has been to give to these words 
 a liberal interpretation, and that being so, they will be 
 seen to cover a very wide range of objects. There are, 
 however, many cases in which relief has been refused on 
 ■.he ground that the objects were not such as could be What not 
 )rought under any of the terms employed. Thus no 
 
 so. 
 
 (/) 9 Geo. II. 0. 36. Ves. 399, 405 ; 10 ih. 522, 541 ; 
 
 (m) Story, 1145, 1155. Kendall v. Granger, 5 Beav. 300, 
 
 n) Morice v. Bp. of Durham, 9 302; Story, 1155, 1158.
 
 28 TRUSTS: GENERAL VIEW. 
 
 superstitious uses, such as to pay for prayers for the 
 dead (o), or the maintenance of a himp in a church or 
 chapel (j)), are within its purview ; nor will general ex- 
 pressions of intended benevolence be carried into execu- 
 tion (q). 
 Charitable (2.) But wherever a valid charitable trust appears, a 
 rei'arded Court of equity is always disposed to treat it with favour, 
 
 with r^jj(^ j^ jiiany circumstances it applies to them a more 
 
 favour. . . . . 
 
 liberal construction than it would in the case of a gift to 
 
 an individual. The following cases afford illustrations of 
 
 this :— 
 
 l^iius (i.) If a testator gives his property to such person as he 
 
 prevent a shall hereafter name to be his executor, and afterwards 
 
 lapse, appoints no executor, or having appointed one, he dies in 
 
 the testator's lifetime, such bequests will fail, and the next 
 
 of kin will take the estate, as in a case of intestacy. But 
 
 if a like bequest be given to an executor in favour of a 
 
 charity, the Court will supply tlie place and carry it into 
 
 effect (v). 
 
 (ii.) If an estate is devised to such an individual as the 
 executor shall name, and no executor is appointed, or one 
 being appointed dies in the testator's lifetime, the dis- 
 position fails. But such a gift in favour of a charity 
 would be executed (s). 
 and supply (iii.) If a testator has expressed an absolute intention 
 directions, to give a legacy to charitable purposes, but has left un- 
 certain, or to some future act, the mode by which it is to 
 be carried into effect, then a Court of equity will of itself 
 supply the defect and enforce the charity (t). 
 Doctrine (iv.) Where the literal execution of the trusts of a 
 charitable gift becomes inexpedient or impracticable, the 
 Court will execute them cy-pres, i.e., following as nearly as 
 
 (o) West V. Shuttlewm-th, 2 My. k. 1 Mer. 55, 96 ; Pocock v. Att.-Gcn., 
 
 K. 684. 3 Ch. D. 342. 
 
 (j9) Storj', 1164. (s) Story, 1168; Moijrjrhl'je v. 
 
 (g) Ellis V. <S'c%, 7 Sim. 352 ; 1 Thackwdl,"? Ves. 36. 
 My. & Cr. 286 ; Leavers v. Clayton, {t) Att.Gcn. v. Si/dei'Jin, 1 Vcrn. 
 
 8 Ch. D. 584. 224 ; 2 Freem. 261. 
 
 ()•) Story, 1168; Mills v. Parmer,
 
 CHARITABLE TRUSTS. 29 
 
 it can the original purpose. This important principle of 
 cy-pres is thus expressed by Lord Eldon : " If a testator 
 has manifested a general intention to give to a charit}^, 
 the failure of the particular mode in which the charity is 
 to be executed shall not destroy the charity ; but if the 
 substantial intention is charity, the law will substitute 
 another mode of devoting the property to charitable pur- 
 poses, though the formal intention as to the mode cannot 
 be accomplished " (u). 
 
 Thus where a charitable bequest is so given that there 
 can be no objects, the Court will order a new scheme to 
 execute it ; or when the specified objects cease to exist the 
 Court will new model the charity. A commonly quoted 
 and striking illustration of this is seen in the case of 
 
 ATT. GEN. V. THE IRONMONGERS' CO. 
 
 [2 Beav. 313], 
 
 where there was a bequest of the residue of a testator's 
 estate to a company to apply the interest of a moiety 
 " unto the redemption of British slaves in Turkey or 
 Barbary," one-fourth to charity schools in London and its 
 suburbs, and one-fourth towards necessitated freemen of 
 the company. There being no British slaves in Turkey 
 or Barbary to redeem, the Court directed a master to 
 approve of a new scheme cy-pres, and sanctioned a scheme 
 which gave the moiety thus undisposed of to the donees 
 of the other fourth parts (v). 
 
 All these doctrines proceed upon the .same ground ; 
 namely, that it is the duty of the Court to effectuate the 
 general intention of the testator. And accordingly the Particular 
 application of them ceases whenever such general inten- desi^giTdis- 
 tion is not found. If, therefore, it is clearly seen that the t'ngnislied 
 testator had one particular object in his mind, as, for ex- general, 
 ample, to build a church at W., and that purpose cannot be 
 answered, the next of kin will take, there being no general 
 
 (m) Moggridye v. ThackweU, 7 Ves. (v) Story, 1170 a. 
 
 36, 69.
 
 30 
 
 trusts: genp:ral view. 
 
 Defective 
 convey- 
 ances 
 remedied. 
 
 charitable intention (w). Also if the charity be of a general 
 indefinite or merely private nature the disposition will be 
 treated as utterly void. In such a case, as the trust is not 
 ascertained, the fund must go either as an absolute gift to 
 the individual selected to distribute it, or to the next of 
 kin : and it is a general principle that if a testator means 
 to create a trust, and does not effectually do so, the trustee 
 may not benefit thereby ; the next of kin therefore will be 
 entitled (x). 
 
 (v.) In further aid of chai-ities, the Court will supply all 
 defects of conveyances where the donor has a capacity and 
 a disposable estate, and his mode of donation does not 
 contravene the provisions of any statute. Thus it used to 
 supply the want of a surrender of copyholds, and it has dis- 
 pensed with a strict compliance with the terms of a power ; 
 but it would not carry into execution a will not made with 
 the formalities required by the Wills Act (y). 
 Assets not The general favour shown by equity for charities does 
 
 marshalled j ^ j 
 
 infavourof not, howcver, go SO far as to permit of the marshalling of 
 chanties, assets in their favour. Thus if a testator give his real 
 and personal estate to trustees upon trust to sell and pay 
 his debts and legacies and apply the residue to a charity, 
 equity will not marshal the assets by throwing the debts 
 and legacies upon the proceeds of the real estate and 
 chattels real in order to leave the pure personalty for the 
 charity. The fund will be appropriated as if no legal 
 objection existed as to applying any portion of it to the 
 charity ; and such proportion of the charity legacies will 
 be held to fail as would in that way fall to be paid out of 
 the prohibited fund (z). 
 
 {w) Story, 1182 ; Clark v. Taylor, 
 
 1 Drew, 642 ; Fisk v. Att.-G., 4 Eq. 
 521. 
 
 (x) Story, 1183 ; Stulhs v. Sargon, 
 
 2 Keen, 255. 
 
 (y) 1 Vict. c. 26 ; Story, 1171 ; 
 
 Tuffnell V. Pac,e, 2 Atk. 37 ; Sayer 
 V. S., 7 Ha. 377 ; Innes v. Sayer, 3 
 Mac. & G. 606. 
 
 (s) Hobson V. Blackburn, 1 Keen, 
 273 ; Hobinson v. Gov. of London 
 IIosp, 10 Ha. 19.
 
 CLASSIFICATION OF TRUSTS. 31 
 
 V. Classification of Trusts. 
 The leadinsf division of trusts adopted by Mr. Lewin (a) Lewin's 
 
 . classifica- 
 
 distinguishes between those trusts which are created by tion. 
 the act of a party, and those which arise from the operation 
 of law. This classification recommends itself in that it 
 not only calls attention to the very prominent distinction 
 between the different kinds of trusts as regards their 
 creation, but also in that it coincides with an equally 
 prominent distinction in the nature of the trusts them- 
 selves. It therefore has all the merit that can be looked 
 for in a classification. 
 
 The first species of trusts may be concisely described as Express 
 express trusts. Trusts which arise from the operation of 
 law are of two kinds, Resulting Trusts and Constructive 
 Trusts. In certain cases, from the manner of a party's 
 dealing with his property, equity presumes an intention 
 on his part to sever the legal and equitable interest by 
 creating a trust. Such trusts are Resulting Trusts, In J^esultmg 
 
 * _ ° Trusts. 
 
 other cases, without any reference to the expressed or pre- 
 sumed intention of the parties, equity will, in order to 
 satisfy the demands of justice and good conscience, assume 
 the severance of the legal and equitable interests, and 
 create a trust. Such trusts are Constructive Trusts. Construc- 
 
 mi 1 ^ • n -n ti • i i tiveTrUStS. 
 
 Ihese three several species of trusts will naturally yield 
 to further analysis as they are separately considered. 
 
 It may be well here to state that the trusts above Ambiguity 
 described as Resulting Trusts are by some writers de- piied 
 signated Implied Trusts (h). The nomenclature here em- *^*^^*''- 
 ployed is that of Mr. Lewin, by whom the term " implied 
 trusts " is used to describe a sub-division of express trusts, 
 namely those trusts which are created by the use of in- 
 formal precatory expressions. 
 
 (a) 7th ed., p. 21. (h) Snell's Principles of Equity.
 
 32 EXPKKSS TRUSTS. 
 
 Section II. — Express Trusts. 
 
 I. Tlte Creation of the Trust. 
 II. Distinction between Executed and Executory 
 Trusts. 
 
 Glenorchy v. Bosville. 
 III. Voluntarii Conveyances and Trusts. 
 
 A. Gifts. 
 
 B. Unexeciited intentions to give. 
 
 C. Voluntary Trusts. 
 
 Ellison V. Ellison. 
 
 D. Statutory Modifications. 
 
 E. Trusts for Payment of Debts. 
 
 I. Tlie Creation of the Trust. 
 As a general rule, any person who is competent to deal 
 with the legal estate may vest it in a trustee for the pur- 
 pose of executing his intention. 
 Statute of 1. Before the Statute of Frauds, trusts of every species 
 29 Gir II o^ property might have been created or transferred by 
 c- 3. parol ; but by that statute (c) it was enacted, 
 
 8. 7. " That all declarations or creations of trusts or confidences 
 
 of any lands, tenements or hereditaments, shall be mani- 
 fested or proved by some writing signed by the party who 
 is by law enabled to declare such trusts, or by his last will 
 in writing " {d). 
 s- 9- " That all grants and assignments of any trust or confi- 
 
 dence shall likewise be in writing, signed by the party 
 granting or assigning the same, or by his last will" (e). 
 
 (c) 29 Car. II. c. 3. (e) s. 9. 
 
 {d) s. 7.
 
 THE CREATION OF THE TRUST. 33 
 
 " Provided always, that where any conveyance shall be r. 8. 
 made of any lands or tenements by which a trust or confi- 
 dence shall or may arise or result by the implication or 
 construction of law, or be transferred or extinguished by 
 an act or operation of law . . . such trust or confidence 
 shall have the like force and effect as ... if this statute 
 had not been made" (/). 
 
 Thus a trust of freeholds, or of copyholds or of lease- Scope of 
 
 111 n 1 1 n A ^L^ 1^ thestatute. 
 
 holds, can no longer be created or transierred without a 
 written instrument. But a trust of personal chattels may 
 still be generally created by parol ; and resulting and con- 
 structive trusts are unaffected by the Act. 
 
 These rules are applicable whatever be the object of the 
 trust, whether it be of a private or jiublic or charitable 
 nature (</). 
 
 It is to be observed that the statute does not require Requires 
 
 1 1 • 1 • • • 1 11 1 only evi- 
 
 more than that the trusts withm its purview shall be dence in 
 manifested and proved by writing. It is satisfied by ^^iti"^- 
 written evidence of a trust which may not necessarily have 
 been originally declared in writing (h). It is necessary, 
 however, that in such eases the evidence should clearly be 
 shown to relate to the subject of the alleged trust (i) ; and 
 not only the fact of the trust, but also the terms of it, must 
 be supported by evidence under signature {h). 
 
 2. No particular form of expression is necessary to the ronnal 
 
 -Till expres- 
 
 creation of a tru^t, if, on the whole, it can be gathered that sions not 
 a trust was intended. " As a general rule, when property ^^^"^"^^ • 
 is given absolutely to any person, and the same person is 
 by the giver, who has power to command, recommended or 
 entreated, or wished to dispose of that property in favour 
 of another, the recommendation, entreaty or wish shall be 
 held to create a trust, first, if the words are so used that 
 on the whole they ought to be construed as imperative ; 
 
 (/) s. 8. 314. 
 
 iff) Loyd V. Spillet, 3 P.Wms. 344 ; (i) Forster v. Hale, sup. 
 
 2 Atk. 148. U') J^bid. ; Smith v. Mattheics, 3 De 
 
 {h) Forster v. Hale, 3 Ves. 696 ; G. F.fe J. 139; A'?-o?i/icm v. /o/i?)Son, 
 
 Moorcroft v. Doialing, 2 P. Wms. 7 Cli. D, 60. 
 
 D
 
 EXPRESS TRUSTS. 
 
 secondly, if the subject of the recommendation or wish 
 be certain ; thirdly, if the objects or persons intended to 
 have the benefit of the recommendation or wish be also 
 certain" (l). 
 
 (1.) The ivords must he inqoeratlve. 
 
 As illustrating what expressions are deemed to be suffi- 
 ciently imperative, we find that the words "wish and 
 request" (m), "have fullest confidence" (n), "heartily 
 beseech " (o), " well know " ( p), " of course he will give " (q), 
 have been so considered. But the leaning of the Court is 
 against construing merely precatory or recommendatory 
 words as creating trusts. Thus, if such expressions as the 
 above are accompanied by other words which indicate an 
 intention that the first taker should have a discretionary 
 power over the subject, or that the donor did not intend 
 the wish to be imperative, no trust will be created (r). 
 The tendency of modern decisions is still more pronounced 
 in this direction, and such cases as Bardsicell v. B. and 
 Rohinson v. Smith would very probably not now be 
 followed (s). 
 
 Moreover, clear words of gift to a devisee for his 
 own benefit, free from control, will not be cut down by 
 subsequent words which amount to an expression of 
 desire (t). 
 
 A person apparently taking property by devise or bequest 
 from a testator, with the knowledge of the existence of 
 another instrument, which he actually or impliedly under- 
 takes to carry into efll:ect, will be fixed as a trustee with 
 the performance of the directions given in such instru- 
 ment, when the Court is satisfied that he has fraudulently 
 induced the testator to confide to him the duty which he 
 
 (/) Per Lord Langdale, Knigltt v. 
 K., 3 Beav. H8, 172 ; 11 CI. & F. 
 513. 
 
 {m) Godfrey v. G., 11 W. R. 554. 
 
 (w) Shovclton V. S., 32 Beav. 143. 
 
 (o) Meredith v. Heneage, 1 Sim. 
 542 553. 
 
 Cxj) BardsiceU v. B., 9 Sim. 319. 
 
 (5) Rohinson v. Smith, 6 Mad. 194. 
 
 (r) Howorth v. Dewell, 29 Beav. IS ; 
 Benson v. WJiittam, 5 Sim. 22. 
 
 (s) Lamhe v. Eamcs, 10 Eq. 267 ; 
 Hutchinson v. Tenant, 8 Ch. D. 540 ; 
 Parncdl v. P., 9 Ch. D. 96. 
 
 (t) Meredith v. Heneage, sup.; 
 White V. Briggs, 15 Sim. 33.
 
 THE CREATIOX OF THE TRUST, 35 
 
 undertook to perform (u). In such cases the existence of 
 fraud induces a departure from the usual rule against 
 allowing any force to a document of a testamentary nature 
 not properly executed. In other words, fraud creates a 
 right to the discovery of secret trusts, notwithstanding the 
 Wills Act (x), and such trusts may be proved by parol 
 evidence (?/). 
 
 If, however, a secret trust of such a nature arises from a Illegal 
 
 secret 
 
 bargain which designs to contravene the policy of the law, trust. 
 for instance, in attempted circumvention of the Mortmain 
 Acts, the trust will be set aside in favour of the heir (z). 
 
 (2.) The subject-matter must be certain. 
 
 Thus where a testator devised real property to his wife Subject 
 
 ... must be 
 
 to be sold for the payment of his debts and legacies m aid certain, 
 of his personal estate, and added that he " did not doubt 
 but his wife would be kind to his children," no trust was lUustra- 
 created, because no right to any particular part of the 
 estate was conferred (a). So in a similar case where the 
 words used were " not doubting, as she has no relations of 
 her own, but that she will consider my near relations 
 should she survive me, as I should consider them myself 
 should I survive her," the result was the same (6). Similarly 
 the expressions " well knowing he will remember " certain 
 objects (c), " do justice to," or " deal justly and properly 
 with" (cl), or a recommendation to give " what shall be left 
 at his death" (e), or "what he may have saved" (/), are 
 considered too indefinite to create a trust (g). 
 
 (3.) The objects or cestuis que trust must be certam. Objects 
 In Harlancl v. Trigg (h), where a testator gave lease- certain, 
 holds to his " brother for ever, hoping he will continue 
 
 ((/) Godefroi on Ti-usts, p. 79 ; (d) Pope v. P., 10 Sim. 1. 
 
 McCormich v. Grorjan, 4 L. R. H. L. (e) Wynne v. Hawkins, 1 Bro. C. C. 
 
 82. 179. 
 
 (x) Thynn v. T., 1 Vern. 295; (/) Cowman \. Harrison, 10 Ha. 
 
 Karris v. Fraza; 15 Eq. 318, 330. 234. 
 
 [y] Edwards v. Pike, 1 Ed. 267. (.'/) See also Eade v. K, 5 Madd. 
 
 (.-) Muckleston v. Broim, 6 Ves.69. 118 ; Finden v. Stephens, 2 Ph. 142 ; 
 
 («) Bugyins v. Yates, 9 Mod. 122. Horicood v. West, 1 S. & S. 387 ; 
 
 {b) Sale V. 3Ioore, 1 Sim. 534. Shaw v. Lawless, 5 CI. & F. 129. 
 
 (f) Bardswell v. B., sap. (h) 1 Bro. C. C. 141. 
 
 D 2
 
 30 
 
 EXPRESS TRUSTS. 
 
 l)istiac- 
 tion where 
 trust is 
 manifestly 
 intended. 
 
 Then 
 trustee 
 cannot 
 take bene- 
 ticially. 
 
 Object 
 must be 
 lawful. 
 
 them in the family," Lord Thurlow held that no trust was 
 created, and said : " I take the rule of law to be this, that 
 two things must concur to constitute these devises, — the 
 terms and the object. Hoping is in contradistinction to 
 a direct devise ; but whenever there are annexed to such 
 words precise and direct objects the law has connected the 
 whole together, and held the words sufficient to raise a 
 trust ; — but then the objects must be distinct." Similarly 
 the expression " near relations " (i) has been considered 
 too indefinite to create a trust. 
 
 The distinction must, however, be carefully observed 
 between those cases in which, as above, it was held that no 
 trust was created, and therefore the lecratee might hold the 
 estate or bequest beneficially, and other cases in which, 
 though the terms are not sufficiently certain and definite 
 to create an effectual trust, it is, nevertheless, the mani- 
 fest intention of the testator that there shall be a trust 
 of some kind, and that the donee shall not take bene- 
 ficially. It is an unfailing principle that if a trust is 
 clearly intended, the intended trustee cannot take bene- 
 ficially. In Brigtjs v. Penny (Ic), Lord Truro said : " If a 
 testator gives upon trust, though he never adds a syllable 
 to denote the objects of that trust, or though he declares 
 the trust in such a way as not to exhaust the property, or 
 though he declares it imperfectly, or though the trusts are 
 illegal, still, in all these cases, as is well known, the legatee 
 is excluded, and the next of kin " or the heir " takes." In 
 Stead V. Mellor (I) it was intimated that the precise words 
 used in Briggs v. Penny were barely sufficient to indicate 
 a clear intention to create a trust, but the principle above 
 quoted was not questioned. 
 
 (4.) The object of the trust onust he laivfid. 
 
 The Court will not permit the system of trusts to be 
 directed to any object that contravenes the policy of the 
 law. Thus a trust of personalty cannot be limited to A. 
 
 (i) Sale V. 3Ioore, 1 Sim. 534. & G. 546. 
 
 (k) 3 De G. & Sm. 525 ; 3 Mac. (?) 5 Ch. D. 225.
 
 THE CPxEATION OF THE TRUST. 37 
 
 and his heirs, nor can it be entailed. If such words are 
 used, they will vest an absolute interest in A. (m). 
 
 Similarly, trusts which contravene the Mortmain Acts, Mortmain 
 whether openly or secretly (n), or the law of per- ^ ^' 
 petuities (o), or the policy of the law of bankruptcy (29), are 
 void. Nor can property be settled on trust for illegitimate 
 children to be thereafter born (q), nor on any trust adverse 
 to religion or morality {r) or which savours of simony (s). 
 
 Where a trust is created for an unlawful or fraudulent Court will 
 purpose, the Court will neither enforce the trust in favour assist 
 of the parties intended to be benefitted, nor will assist the ^/^^"' '^"'^ 
 
 ■■• ' _ _ trtcst nor 
 
 settlor to recover the estate (f). But if the object be author of 
 partly lawful and partly unlawful, and the Court can 
 sever the two, it will hold good and execute the lawful 
 part (u.) 
 
 3. Poiver in the nature of a tnist. 
 
 In addition to the cases in which upon words of recom- Power in 
 mendation a trust simply has been held to be created, trust. 
 there is another class of cases in which powers are given 
 to persons accompanied with such words of recommenda- 
 tion in favour of certain objects, as to confer upon them 
 the nature of trusts ; so that if the donees fail to exercise Executed 
 such powers in favour of the specified objects, the Court Court, 
 will take upon itself to a certain extent the duties of the 
 donees. 
 
 In order to induce the Court so to do there must be 
 something more than a mere power of disposing (v) ; but When, 
 if there appears, in connexion with the words creating the 
 power, a general intention in favour of a class, and a par- 
 ticular intention in favour of individuals of that class to be 
 selected by another person, and the particular intention 
 
 {m) Dulce of NorfoJVs Ca., 3 Ch. (s) Co«'^erv.ilfanfe?/',22Beav.231. 
 
 Ca. 9 ; 1 Vern. 164. (t) Cottington v. Fletcher, 2 Atk. 
 
 (ii) Way V. East, 2 Drew, 44. 155 ; Haiyh v. Kayc, 7 Ch. 473. 
 
 (0) D. of Norfolk'' s Ca., supra. (u) Mitfordv. Eeynohls, 1 Ph. 185; 
 
 (p) Graves v. DolpMn, 1 Sim. 6G ; Re Blrkett, 9 Ch. D. 576. 
 
 Higinhotham v. Holme, 19 Ves. 88. (c) Brown v. Higgs, 8 Ves. 561, 
 
 (5) Medworth v. Pope, 27 Beav. 71 . 570. 
 
 (r) Tko^mtonv, Howe, 31 Beav. 14.
 
 38 EXPRESS TRUSTS. 
 
 fails from that selection not being made, the Court will 
 carry into effect the general intention [x). In such a case 
 the power is so given as to make it the duty of the donee 
 to execute it, and the Court will not allow the objects to 
 suffer from his negligence (?/). 
 
 Further, if in such a case a rule is laid down for the 
 guidance of the donees of the power, which they do not 
 act upon, the Court will act upon it, exercising the same 
 judgment' as the trustees should have done {z). There the 
 trustees were to give the residue of the property to the 
 testator's friends and relations where they should see most 
 necessity, and as they should see most equitable and just. 
 On the surviving trustee refusing to act, the Court con- 
 sidered that it could follow the rule indicated and judge 
 of the necessity. In the absence of such guidance, the 
 Court would distribute the fund equally among the objects 
 of the trust {a) on the principle that equality is equity. 
 The same principle was followed in Salushury v. Denton (6), 
 Avhere a widow was directed to ajiply on her death part of 
 a fund for a charity, the remainder to be at her disposal 
 among the testator's relations in such proportions as she 
 might be pleased to direct. 
 Distinc- There is a distinction which shoidd be noticed between 
 
 there Is ^no thoso cases in which there is a gift to a class with a subse- 
 express qucnt powcr of apjDointment amongst the class, and those 
 class. ' in which there is no gift to the class except in or by means 
 of the power. In the first instance, the property vests 
 until the power is exercised in all tlie members of the 
 class, and in default of appointment they Avill all take (c). 
 The property is, in other words, vested in the whole class, 
 subject to be divested by the exercise of the poAver. But 
 in the second case, there being no such primary gift to the 
 class, those only can take in default of appointment who 
 
 (x) Burroufjh v. Philcox, 5 My. & sr. 87. 
 
 Cr. 72. (n) Doylcy v. Att.-Gen., 2 Eq. Ca, 
 
 {y) Broivn v. Hlffr/s, 8 Ves. 576 ; 5 Ab. 194. 
 
 My. & Cr. 92. _ (b) 3 K. & J. 529. 
 
 (z) Gowerv, Ma'mwaring, 2 Ves. (r) Lamherty.Thxcaites,2'E({.15\, 1
 
 EXECUTED AND EXECUTORY TRUSTS. 39 
 
 might have taken under an exercise of the power. Thus 
 the children of a deceased object of the power would not 
 take in default of appointment (d). 
 
 There is, again, a distinction between those cases in Time of 
 which the donee of the power has a life interest in the ing class 
 fund, and those in which he has not. If he has, the class jj^fj^her"" 
 to take in default of appointment is determined by the donee 
 state of facts at the death of the donee of the power (e). interest or 
 If he has not, it will be determined by the state of facts not. 
 at the death of the donor of the power (/). 
 
 II. Executed and Executory Trusts. 
 
 One of the most important of the sub-classifications of Distinc- 
 express trusts is that which distinguishes between executed tween 
 and executory trusts. On this subject the leading executed 
 
 , . . , „ and exe- 
 
 authority is the case of cutory 
 
 trusts. 
 GLENORCHY v. BOSVILLE. 
 
 [Ca. t. Talb. 3 ; 1 W. & T. L. C. 1.] 
 
 In this case A. devised real estate to his sisters B. and C. 
 their heirs and assigns upon trust until his granddaughter 
 D. should marry or die to receive the profits, and thereout 
 to pay her £100 a year for her maintenance ; the residue to 
 pay debts and legacies, and after payment thereof in trust 
 for the said D. ; and upon farther trust, that if she lived to 
 marry a Protestant of the Church of England, and at the 
 time of such marriage were of the age of 21 or upwards, 
 or, if under that age, such marriage were with the consent 
 of the said B., then to convey the said estate with all con- 
 venient speed after such marriage to the use of the said D. 
 for life, without impeachment of waste, remainder to her 
 husband for life, remainder to the issue of her body, 
 remainders over. It was held that tliough D. would have 
 
 (c?) Walsh V. WaUivr/er, 2 Russ, (e) Harding v. Gli/n, 1 Atk. 469. 
 
 & My. 78. (/) Cok v. Wack, 16 Ves. 27,
 
 40 EXPRESS TRUSTS. 
 
 taken an estate tail had it been the case of an immediate 
 devise, yet that the trust being executory was to be exe- 
 cuted in a more careful and accurate manner; and that a 
 conveyance to D. for life, remainder to their first and every 
 other son, with remainder to the daughters, would best 
 serve the testator's intent. 
 
 This case is the foundation of a long series of decisions 
 
 in which the distinction between executed and executory 
 
 trusts is recognised. 
 
 Definition A ti'ust is said to be executed when no further act is 
 
 cutecr required to give effect to it, the terms of the trust being 
 
 trust. completely declared by the instrument creating it; as 
 
 where an estate is conveyed or devised unto and to the 
 
 use of A. and his heirs in trust for B.and the heirs of his body. 
 
 Executory A trust is said to be executory when some further act 
 
 *™*'*' must be done by the author of the trust or by the trustees 
 
 to give effect to it, as in the case of marriage articles, 
 
 which require a settlement to follow to declare fully the 
 
 limitations of the trust, or as in the case of a will by which 
 
 property is devised to trustees upon trust to settle or convey 
 
 in a more perfect and accurate manner. 
 
 The distinction between an executed and an executory 
 trust does not rest merely on the fact that the trustee may 
 be required to execute some further instrument to give 
 full effect to his trust. For instance, a mere direction to 
 convey upon certain specified trusts will not render those 
 trusts executory, so as to give to a Court of equity the 
 latitude of construction which we shall see to be applicable 
 in the case of executory trusts. The true distinction 
 depends on the question whether the creator of the trust 
 has been what is called his own conveyancer ; whether, 
 that is to say, he has so defined his intention that you 
 have nothing to do but to take the limitations he has 
 given you, and convert them into legal estates, or has left 
 it to the Court to make out from general expressions what 
 his intention is ((/). 
 
 {y) Egerton v. Broivriloio, 4 H. L. 1, 210. 
 
 I
 
 EXECUTED AND EXECUTORY TRUSTS. 41 
 
 It is clearly established that in the case of executed Construe- 
 
 ~ „ . .,, 1-1 1 • ^i°n of 
 
 trusts a Court of equity will construe technical words m executed 
 the same manner as a Court of law would construe them ^^^^^^'^ '■ 
 
 equity 
 
 when applied to legal estates. If, for instance, an estate follows the 
 is vested in trustees and their heirs in trust for A. for life 
 without impeachment of waste, with remainder to trustees 
 to preserve contingent remainders, with remainder in trust 
 for the heirs of A. 's body, the trust being executed, A. will, 
 according to the rule in Shelley's case, take an equitable 
 estate tail, just as he would have taken a legal estate' tail 
 in case similar words of limitation had been used in a 
 conveyance direct to himself without the intervention of 
 trustees (A). 
 
 In cases, however, of executory trusts where something is Construe- 
 left to be done — viz., the trusts are left to be executed in executory 
 a more careful and more accurate manner — a Court of*,™^*'^, 
 
 depends on 
 
 equity does not consider itself bound to construe technical the mstru- 
 expressions with the same legal strictness. If, from the ^eatin"- 
 nature of the instrument or from the circumstances of the them. 
 case, the intention of the creator of the trust can be ascer- 
 tained, the Court will, in supplying or directing the further 
 act necessary for the execution of the trusts, mould the 
 trusts according to such intention. 
 
 The effects of the distinction between executed and The prin- 
 executory trusts are most conspicuous in two classes of same in 
 cases : 1. Those arising under marriage articles, 2. Those ^^J.'^,^^ ^^ 
 
 . ° . . *^ articles : 
 
 arising under wills. It is sometimes represented that 
 these two classes of cases are treated on different prin- 
 ciples. This is not strictly true. The principle in both viz., to 
 cases is that the executory trusts are to be carried into testator's 
 execution in accordance with the intention of the creator intention; 
 of the trust. The difference between the two cases is but in 
 that marriage articles from their very nature afford an intention 
 indication of that intention, which is wanting in the ™^y '^^, 
 
 inferred. 
 
 case of a will. In the former the presumed object of 
 
 (/() Wr-ight v, Pearson, 1 Eden, 119; A^^sten v. Taylor, ihkl. 3G1.
 
 42 
 
 EXPRESS TRUSTS. 
 
 Secus in 
 wills. 
 
 Construc- 
 tion of 
 articles. 
 Real 
 estate. 
 
 Issue 
 treated 
 as pur- 
 chasers. 
 
 the instrument is to make provision for the issue of the 
 marriage ; in the latter there is no reason to suppose that 
 a testator intends his beneficiary to take one quantum of 
 interest rather than another, an estate for Ufe rather than 
 an estate in tail or in fee (i). If, however, even in the 
 case of a will, it can be ascertained from the language 
 employed that the testator did not mean to use the 
 expressions he has employed in their strict technical 
 sense, the Court in decreeing such settlement as he has 
 directed, that is, in executing the executory trust, will 
 depart from his words in order to execute his intention (j). 
 The precise nature of the contrast between the two cases 
 will fully appear in the detailed separate consideration of 
 executory trusts under marriage articles and those arising 
 under Avills. 
 
 A. Executory trusts under onarriage articles. 
 
 (1.) If, in articles before marriage, for making a settle- 
 ment of the real estate of either the intended husband or 
 wife, it is agreed that the same shall be settled upon the 
 heirs of the body of them or either of them, in such terms 
 as would, if construed with legal strictness according to 
 the rule in Shelley's case, give either of them an estate 
 tail, and so enable him or her to defeat the provision 
 for the issue by barring the entail, Courts of equity, 
 considering that the special object of the articles is to 
 make provision for the issue of the marriage, will in con- 
 formity with the presumed intention of the parties, 
 decree a settlement to be made upon the husband or wife 
 for life only, with remainder to the issue of the marriage 
 in tail as purchasers (/v). When the words " heirs of the 
 body," or " issue," are held to indicate an intention that 
 the issue of the marriage should take as purchasers, a 
 settlement will be decreed in favour of daughters as well 
 
 (i) Eochford v. Fltzmavrice, 2 Dr. B. 369. 
 & W. 1. (A) Trevor v. T., 1 P. Wins. 622 ; 
 
 (j) Blackburn v. Stables, 2 V. & Streatfield v. S., ca. t. Talb. 176.
 
 EXECUTED AND EXECUTORY TRUSTS. 43 
 
 as sons ; thus the form of the limitation will be to the first Form of 
 and other sons successively in tail, with remainder to the 
 daughters as tenants in common, with cross remainders 
 between them (l). 
 
 Though the principle on which the Courts a,ct in these Modifying 
 
 1 1 . . f, , . f> 1 circum- 
 
 cases IS to make such provision tor the issue oi the stances, 
 marriage as it shall not be in the power of either parent 
 to defeat, where articles are so framed that the concur- 
 rence of both parents is requisite in order to defeat the 
 provision for the issue, the Court has refused to interfere, 
 considering that it may have been the intention of the 
 parties to the articles that the husband and wife should 
 jointly have such power. And so, where it appears on the 
 face of the articles that the parties themselves knew and 
 made a distinction betAveen limitations in strict settlement, 
 and limitations leaving it in the power of one of the 
 parents to bar the issue, a strict settlement of the whole 
 will not be decreed (m). 
 
 Where words are used in articles which would, if inter- Tenancy 
 preted strictly, create a joint tenancy among the children preferred 
 of the marriage, equity will decree a settlement upon ^° J*^"^^ 
 
 . 1 . , . . tenancy. 
 
 them as tenants m common, either with provisions for 
 limiting over the shares of any who die under age and 
 without issue (n), or for making the interests of the 
 children contingent on their attaining 21, being sons, or 
 being daughters, attaining that age or marrying (o). But 
 surrounding circumstances ma,y modify the operation of 
 this rule Q)). 
 
 The same rules of construction apply generally to post- Same rules 
 nuptial as to ante-nuptial settlements (q). ^^^^^f ° 
 
 (2.) Where chattels are settled immediately or by a trust nuptial 
 executed, upon the same trusts that have been declared of ments. 
 
 (I) Nandick v. Wilkes, Gilb. Eq. 445; Cogan v. Buffield, 2 Ch. D 
 
 Rep. 114. 44, 50. 
 
 (in) Howel v. H., 2 Ves. sr. 358, (p) In re BeUasis" Trust, 12 Eq. 
 
 359. 218. 
 
 {n) Taggart v. T., 1 S. & L. 84, 89. (?) Rochford v. Fitmaurice, 2 Dr 
 
 (o) Young v. Macintosh, 13 Sim. & W. 1, 19.
 
 4-i EXPRESS TRUSTS. 
 
 Person- j-gal estate in strict settlement, that is. on the first and 
 altv • . . . ' 
 
 other sons successively in tail, if there is no restriction as 
 
 to tlie attainment of 21 years or the fulfilment of any 
 other condition, such chattels will vest absolutely in the 
 first tenant in tail at his birth, whether the limitation of 
 the chattels be expressed in extenso or created by refer- 
 ence to the limitations of the realty (>'). But in the case 
 of an executory trust by settlement, as where a person has 
 agreed or covenanted to settle chattels upon similar trusts 
 to real estate in strict settlement, a Court of equity, upon 
 the principle of carrying into effect the intention of the 
 parties as far as possible, will order a clause to be inserted 
 in the settlement of the chattels to the effect that the 
 Absolute ^gj^^^^^ ij^^ tail shall not be entitled to the absolute pro- 
 potponed perty in the chattels unless he shall attain the age of 21 
 tin attain- ^^^^^^ ^^ ^^.^ Under that age leaving issue (s). 
 twenty- Thoucyh a settlement ought to be executed in order to 
 
 one years. ° , . . p . i • t • j_ 
 
 Declara- carry the executory provisions ol marriage articles into 
 
 tion in effect, the Court has, where the property was personal, at 
 
 settle-" the request of the parties, in order to save expense, made 
 
 ment. ^ declaration as to the true meaning of the articles, upon 
 
 which the parties were able to act, without needing a 
 
 formal instrument to be prepared and executed (t). 
 
 B. As to executory trusts in quills. 
 
 (1.) As to real property. 
 
 In wills Unless the intention of the testator appears from the 
 
 construed will itself that he meant the words " heirs of the body," or 
 
 as at law, ig ^f similar import, to be words of purchase. Courts of 
 
 unless con- ""-"^-i-^ " x ' j- 
 
 trary in- equity will direct a settlement to be made according to 
 
 Apparent, the strict legal construction of those words ; but if such an 
 
 intention is apparent on the face of the will, the Court will 
 
 give effect to it. The principles involved cannot be better 
 
 illustrated than by comparing the cases of Sweetapple v. 
 
 Ir) Boncaafcr v. B., 3 K. & J. coin, 3 Ves. 387. 
 20. _ (0 J^yam V. B., 19 Beav. 58; 
 
 (.s) D. of Neu-castlc v. C. of Lin-
 
 EXECUTED AND EXECUTORY TRUSTS. 45 
 
 Bindon {ii), and Papillon v. Voice (v). In the former, B. What 
 gave by will £300 to her daughter Mary to be laid out by indication 
 her executrix in lands, and settled to the only use of her 1^.^°^' 
 daughter Mary and her children, and if she died without intention, 
 issue, the land to be equally divided between her brothers 
 and sisters then living. Lord Cowper said that had it 
 been an immediate devise of land, Mary, the daughter, 
 would have been by the words of the will tenant in tail : 
 and in the case of a voluntary devise, the Court must take 
 it as they found it, and not lessen the estate or benefit of 
 the legatee; although uj)on the like words in marriage 
 articles it might be otherwise. Here there was an execu- 
 tory trust indeed, inasmuch as the executrix was required 
 to execute a settlement to give effect to the testatrix's 
 intention ; but, occurring in a will, which conferred a benefit 
 voluntarily on Mary, there was nothing to lead one to sup- 
 pose that a lesser quantum of interest rather than a greater 
 was intended to be conferred : therefore the Court had no 
 ground for attributing to the words used any other than 
 their strict legal meaning (x). In PapUlon v. Voice, A. 
 bequeathed a sum of money to trustees in trust to be laid 
 out in a purchase of lands and to he settled on B. for life, 
 without impeachment of waste, remainder to trustees and 
 their heirs during the life of B. to preserve contingent re- 
 mainders, remainder to the heirs of the body of B., remain- 
 der over, with power to B. to make a jointure ; and by the 
 same will A. devised lands to B. for his life, without im- 
 peachment of waste, remainder to trustees and their heirs 
 during the life of B, to support contingent remainders, 
 remainder to the heirs of the body of B., remainder over. 
 Lord Chancellor King declared as to that part of the case 
 where lands were devised to B. for life, though said to be 
 without impeachment of waste, with remainder to trustees 
 to support contingent remainders, remainder to the heirs 
 of the body of B., this last remainder was within the 
 
 (m) 2 Vern. 536. (x) Seale v. ,S'., 1 P. Wms. 290. 
 
 (r) 2 P. Wms. 471-
 
 4G EXPRESS TRUSTS. 
 
 general rule, and must operate as Avords of limitation, and 
 consequently create a vested estate tail in B.; but as to the 
 other point, he declared the Court had a power over the 
 money directed by the will to be invested in land, and that 
 the diversity was where the will passed a legal estate, and 
 where it was only executory, and the party must come to 
 the Court in order to have the benefit of the will ; that in 
 the latter case the intention, and not the rules of law must 
 be followed ; so that as to the lands to be purchased, they 
 should be limited to B. for life, with power to B. to make a 
 jointure, remainder to trustees during his life to preserve 
 contingent remainders, remainder to his first and every 
 other son in tail male successively, remainder over. It will 
 be observed that the great distinction between this case 
 and Sweetapple v. Bindon lay in the fact that here the 
 testator had divided his lands with which he intended to 
 benefit B. into two parcels, one of which he devised to B. 
 on certain limitations which were construed legally to carry 
 an estate tail, and the other of which he directed to be 
 settled on B. on the same limitations. This division 
 afforded an index to the testator's intention, for there could 
 have been no object in it if the limitations of both parcels 
 were to be interpreted in the same way. There was here, 
 therefore, an indication of intention which was lacking in 
 Siveetapple v. Bindon ; and therefore the executory trust 
 was interpreted, not strictly, as in that case, but in a 
 manner similar to that in wliich it Avould have been treated 
 had it occurred in marriage articles. 
 Paitiniikr There are many ways in which a testator may so indi- 
 sions. cate his intention as to lead the Court in construing an 
 executory trust to depart from the strict legal signification 
 of the words he employs ; for instance, by instructing 
 trustees to take "special care in such settlement that it 
 shall not be in the power of A. to dock the entail of the 
 estate given to him during his life" (i/), or by directing that 
 
 (.v) Leonard v. E. of Sussex, 2 Verii. 526.
 
 EXECUTED AND EXECUTORY TRUSTS. 47 
 
 the heirs of the body or issue shall take " in succession or 
 piiority of birth/' or that the settlement shall be made 
 "as counsel shall advise," or "as executors shall think 
 tit " (z) ; or again, " in such manner and form as that if A. 
 should happen to die without leaving lawful issue, then 
 that the property might descend after his death unin- 
 cumbered" («) ; so where a testator directed a coirveyance 
 to his daughter for her life, and so as she alone, or 
 such person as she should appoint, should take the 
 rents and profits, and so that her husband should not 
 intermeddle therewith, and from and after her decease in 
 trust for the heirs of her body for ever. Lord Hardwicke 
 considered that as there was a plain intention to exclude 
 the husband ftom all benefit present or future interest, 
 the words "heirs of her body" should be construed as 
 words of purchase, and that the wife was entitled to a life 
 estate only ; because otherwise if the wife predeceased her 
 husband, he would get a considerable benefit contrary to 
 the testator's intention, as tenant by the curtesy (&). It "Heirs "is 
 requires, however, a stronger case to lead the Court to this word'm*^'^ 
 interpretation when the word "heirs" is used than it does favour of a 
 when " issue " is the term employed, the Avord " heirs '' stniction 
 being naturally a word of limitation (c). And where the *^^^^ ^^^^^' 
 trusts and limitations of land to be settled are expressly 
 declared by the testator, the Court has no authority to 
 make them different from what they would be at law (d). 
 
 In wills, as in marriage articles, when the words " heirs Daughters 
 of the body " or " issue " are construed as words of purchase, equ°a]iT 
 they will be held to include daughters as well as sons, and ^^^^ ^o^^- 
 the settlement will be decreed to be made in default of 
 sons and their issue upon daughters as tenants in common 
 in tail general, with cross remainders between them (e); and Children 
 although, in the ordinary construction of a gift by will to parenls, " 
 
 iz) White r. Carter, 2 Eden, 306 ; (c) Meure v. M., 2 Atk. 265. 
 
 Bastard v. Prohy, 2 Cox, 6. (rf) Austen v. l\tylor,\ Eden, 361. 
 
 (a) Thompson v. Fisher, 10 Eii. (e) Bastard v. Prohi/, sup. ; Trevor 
 207. V. T., 13 Sim. 108 ; i H. L. 239. 
 
 (b) Roberts v. Dixwell, 1 Atk. 607.
 
 48 EXPRESS TRUSTS. 
 
 rather j^ ^yifg ^ikI children, they would take as joint tenants (/), 
 
 as joint where there has been a direction to secure the fund for the 
 
 tenants, jjcnefit of the wife and children, the Court has inferred 
 
 an intention that the fund should be settled in the 
 
 usual manner upon the wife for life, remainder to her 
 
 children {g). 
 
 Where in a vjIU there are directions for a settlement in 
 terms which are ordinarily construed to create a joint 
 tenancy, the Court has no authority, as in the case of 
 marriage articles, to vary them in execution by giving 
 a tenancy in common in the settlement unless there is 
 something to indicate that such was the intention (h). 
 (2.) As to personalty. 
 Personalty "Where chattels are given by will, and directed to go by 
 vests reference to hmitations of real estate m strict settlement 
 
 at bh-th or as heirlooms, either simply or " as far as the rules of law 
 and equity will permit," Courts of equity will not, even 
 though the legal estate be in executors, construe the trusts 
 of the will as executory, so as to prevent the chattels vest- 
 ing absolutely in the first tenant in tail upon his birth, as 
 we have seen would be done in the case of marriage 
 C(jutri3ry articles (i). But if a plain intention be expressed that no 
 followed if person shall take the chattels absolutely who does not live 
 expressed, ^q become entitled to the possession of the real estate, the 
 Court will execute that intention (Ji) ; and then the execu- 
 tion of a disentailing deed of the real estate by a tenant 
 in tail who does not live to become entitled to the chattels, 
 will not prevent their vesting in the person who would 
 have been entitled to the real estate in possession, if such 
 disentailing deed had not been executed (l). 
 C. The doctrine of cif-jjves. 
 Execution Where an executory trust in articles or in a will if 
 carried literally into effect would be void for illegality, as 
 
 (/) Nmill V. N., 7 Ch. 253, 256. 274 ; Harrington v. H., 5 L. R. H. 
 
 (fj) Comle V. Hughes, 14 Eq. 415. L. 87. 
 
 (/i) Marryat v. Toimhj, 1 Ves. sr. {1-) Potts v. P., 1 H. L. 671. 
 
 102; <S'(/?K/cv. i/«?fs, 2Ba. &Be. 499. (/) Hogri v. Jones. 32 Bear. 45; 
 
 (/) Foley V. Bimull, 1 Bro. C. C. Shelley v. S., 6 Eq. 540. 
 
 ly-pres.
 
 VOLUNTARY CONVEYANCES AND TltUSTS. 49 
 
 by infringing the rule against perpetuities, the Court will, 
 in order to carry the testator's intention into effect as far as 
 possible, apply the principle of cy-pres, and direct a settle- 
 ment to be made as strictly as the law will permit (^i). 
 
 III. Voluntary Conveyances and Trusts. 
 
 The questions which arise in connexion with gifts, con- 
 veyances and declarations of trust which are unsupported 
 by consideration, are so numerous and so important as to 
 require separate and careful investigation. 
 
 One of the most important questions which require I^istmc- 
 attention in this connexion is the distinction between a between 
 gift, an intention to give which is not completely carried Executed 
 into effect, and the creation of a voluntary trust. intentions 
 
 A. First, what is necessary to constitute a complete gift, ^nd voiun- 
 or donatio inter vivos ? tary trusts 
 
 1. In order to effect a gift of lauds, it is necessary that of laml 
 the transfer should be effected by deed. A feoffment (unless 
 made under a custom by an infant) is void without this 
 evidence (n). 
 
 2. As to a gift of chattels, the best opinion seems to be °^ chattels, 
 that it must either be perfected by delivery, or evidenced 
 
 by deed (o). A mere verbal gift of a chattel to a person 
 in whose possession it already is has been held not to pass 
 any property therein (jj). There are, however, cases in 
 which it has been considered sufficient to complete the gift 
 that the conduct of the parties evidences a change of 
 ownership (q). Where such a gift is evidenced by deed 
 without delivery, it is complete unless and until disclaimer 
 by the donee (r), which may be by parol. 
 
 (m) Humherston v. H., 1 P. Wms. (p) Slioioer v. Pilck, 4 Exch. 478. 
 
 332 ; and see Hampton w. Holman, 5 [q] Plory v. Benny, 7 Exch. 583; 
 
 Ch. D. 183. Ward v. Audland, 16 M. & W. 862. 
 
 («) 8 & 9 Vict. 0. 106, s. 3. (?') Si'jgcrs v, Evans, 5 E. & B. 
 
 (o) Irons V. SmuUpiece, 2 B. & 367. 
 Aid. 551, 552. 
 
 E
 
 50 
 
 EXPRESS TRUSTS. 
 
 Between 
 husband 
 and wiie. 
 
 of seen- 3. The delivery by the donor to the donee of securities 
 
 "'^"^^' transferable by delivery, with words of gift, and an inten- 
 tion on both sides to pass the property, constitutes a valid 
 donation (s). 
 
 4. A gift of chattels may be made by a husband to his 
 wife without the intervention of a trustee, but in order to 
 establish an allegation of such a gift there must be clear 
 and distinct evidence corroborative of the wife's testi- 
 mony (t) ; but the tendency of the Court is to regard slight 
 circumstances as sufficient corroboration of the wife's claim 
 where money which was originally her separate estate has 
 come into her husband's power (u). 
 
 B. Unexecuted intentions to give. 
 
 There is a marked and important distinction between 
 that class of cases in which a settlor without consideration 
 creates a trust in favour of others, and those in which he 
 has ineffectually attempted by an imperfect gift to confer 
 his whole interest ujDon volunteers. 
 
 1. It is clear that a mere expression of intention to divide 
 property with, or to leave it to others, or a mere promise 
 to give, will not be enforced {x). 
 
 2. But where the donor has gone farther than that, and 
 has actually taken some steps with a design of transferring 
 
 to pve will j^-g property, which steps are, however, ineffectual at law 
 
 not crc3»tG ^ 
 
 a trust. for that purpose, the question has arisen whether equity 
 ought not in such circumstances to come to the assistance 
 of the intended beneficiaries, and to give effect to the 
 imperfect legal assignment by treating it as creating a 
 trust of the property in their favour. This question has 
 given rise to a great number of cases which it is not always 
 easy to reconcile, but the general result seems to be that 
 the most clear intention to confer a direct interest will not 
 be sufficient to create a trust in favour of a volunteer. 
 
 Uiiexe- 
 cuted 
 intentions 
 to give. 
 
 Mere pro 
 mise not 
 enforced. 
 
 Clear evi 
 dence of 
 intention 
 
 (s) M'Culloch V. Bland, 2 Giff. 
 428 ; Bromley v. Brunton, 6 Eq. 275 ; 
 Hill V. Wilson, 8 Ch. 888. 
 
 (<) Grant v. G., 34 Beav. 623, 
 
 (a) Rowe v. R., 2 De G. & S. 
 294. 
 
 (oj) Dipple V. Corles, 11 Ha. 183 
 Lister v. Uodyson, 4 Eq. 30.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 51 
 
 Thus where a person endorsed upon the receipt for one lUustra- 
 of the subscriptions in the F, & C. Navigation Company, 
 — " I hereby assign to my daughter B. all my right, title 
 and interest of and in the enclosed call, and all other calls 
 in the F, & C. Navigation Compan}^," but never parted 
 with the paper, the Court refused to hold that a trust was 
 created. He might have assigned the property if he 
 chose, but he did not ; and there was no power to compel 
 him to do so. His act amounted to some evidence of 
 intention to transfer the property, but there was a locus 
 Ijenitentiw as long as the act was incomplete {ij). 
 
 So where the obligee of a bond signed a memorandum 
 not under seal, which was indorsed upon the bond, and 
 purported to be an assignment thereof without considera- 
 tion to a person to whom at the same time the bond 
 was delivered, it was held that the gift being not complete, 
 the Court could not give effect to it as a trust {z). 
 
 There are indeed some cases which seem to be incon- There 
 sistent mth the above rule, and which indicate an inch- intention 
 nation to hold that to amount to a declaration of trust *" create a 
 which according to ordinary rules of construction would 
 amount only to an imjjerfect assignment («). But the 
 more recent and emphatic decision in Richards v. 
 Delbr'idge (h) follows the more powerful current of 
 authorities, and thus expresses their principle, — " The true 
 distinction seems to be plain and beyond dispute ; for a 
 man to make himself a trustee, there must be an 
 expression of intention to become a trustee, whereas 
 words of present gift show an intention to give over 
 property to another, and not to retain it in the donor's 
 own hands for any purpose, fiduciary or otherwise " (c). 
 
 3. Where a voluntary instrument, although effecting no ^Vhere a 
 
 {y) Antrohus v. Sniifli, 12 Ves. Mm'gaa v. Malkson, 10 Eq. 47'). 
 39 ; Searle v. Z«h', 15 Sim. 95. (b) 18 Eq. 11. 
 
 (s) Edwards v. Jones, 1 My. & \c) See also MUroy v. Lord, 4 Do 
 
 Cr. 226 : Dillon v. Coppin, 4 ibid. G. F. & J. 274 ; Breton v. WooUven, 
 
 647. 17 Ch. D. 416. 
 
 (a) Richardson v. E., 3 Eq. 686 ; 
 
 E 2
 
 52 EXPRESS TRUSTS. 
 
 valid legal \(_.ga\ tiaiislt'i' uf property, creates a valid legal obligation, 
 creaTed,"'^ cqiiitj wiU givo cffect to it ((/). Thus where a person 
 etiuity will covenants, without consideration, to pay a sum of money, 
 
 give effect ' , . „ , 
 
 to it. if the covenant is complete, and the Court is not called 
 
 upon to do any act to make it perfect, it will give effect 
 to a trust declared thereupon (e). 
 
 Imperfect Where a paper is of a testamentary character, but 
 
 uut aided, invalid from Avant of proper execution, it cannot be 
 enlarged or converted into a declaration of trust (/) ; 
 and if a testator by will gives property upon trusts 
 afterwards to be declared, he cannot make any valid 
 declaration of such trusts, except by an instrument duly 
 executed as a will or codicil. In the absence of such an 
 instrument, the property would fall into residue (g). 
 C. Voluntary trusts. 
 
 Voluntary Where the plaintiff's claim rests not on the allegation of 
 
 trusts. . . . 
 
 a gift, complete or incomplete, but of a trust created in his 
 favour, it is clearly settled that where a trust is actually 
 created, and the relation of cestui qite trust established, a 
 Court of equity will in favour of a volunteer enforce the 
 execution of the trust against the person creating it and 
 all subsequent volunteers ; but it will not on behalf of 
 volunteers interfere for the purpose of establishing the 
 relationship of trustee and cestui que trust by creating a 
 trust. The leading authority which expressly decides this 
 point is 
 
 ELLISON V. ELLISON. 
 
 [G Ves. 6.56 ; 1 W. & T. L. C. 273.] 
 
 The rule is sufficiently simple, but its application is 
 often by no means free from difficulty, as it is frequently 
 a question of much nicety to determine whether or not 
 the relation of trustee and cesiui que trust has been 
 established. 
 
 {d) Hall V. Palmer, 3 Ha. 532; (/) Warriner v. Poc/ers, 16 Eq. 
 
 Dawson v. Kcarton, 3 Sm. & Giff. 340, 353. 
 186. (y) JoJmson v. Ball, 5 De G. & 
 
 (e) Clovfjh V. Lamhert, 10 Sim. 171. Sm. 85,
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 53 
 
 It may be well, before considering in detail the cases Voluntmv 
 Avhich illustrate the principle, to remind the reader that witiiin 
 voluntary trusts are, equally with others, within the pur- ^♦^-'^t^tc o( 
 view of the Statute of Frauds. If lands are concerned, 
 therefore, such trusts must by sect. 7 of that statute be 
 evidenced by some writing ; but a trust of pure personalty 
 may be validly created by a parol declaration (h). In 
 these cases, however, if doubt or difficulty arises respecting 
 the words alleged to have been used, the Court may give 
 weight to the suggestion that the words, not being com- 
 mitted to writing, may not express the deliberate senti- 
 ments of the party (i). 
 
 2. There seems at first sight to be but a narrow dis- Narrow 
 tinction between some cases where equity has given effect between 
 to such voluntary trusts, and those cases which have been *^^^® 
 
 1 ., . • 1 • 1 1 /-( trusts, and 
 
 described as imperfect gifts, m which the Court would imperfect 
 not interfere on behalf of the would-be beneficiaries, ^ 
 
 Thus in Fortescue v. Barneft {k), J. B. made a voluntary 
 assignment by deed of a policy of assurance effected upon 
 his own life to trustees upon certain trusts, and delivered 
 the deed to one of the trustees. The grantor kept the 
 policy in his own possession, and no notice of the assign- 
 ment was given to the assurance office. It was held that 
 an enforceable trust was created, since no act remained to 
 be done by the grantor which, to assist a volunteer, the 
 Court would not compel him to do. The facts and the 
 result were similar in Pearson v. Amicable Ass. Go. (l). 
 A comparison of these cases with Edwards v. Jones and 
 Richards v. Delbridge (m) will show that while they agree 
 in the fact that the action of the grantor was incomplete, The true 
 
 in-, chstinc- 
 
 they differ in the crucial fact that in the former the steps tion. 
 which were taken tended, though not complete, to the 
 creation of a trust, while in the latter the intention 
 
 (A) McFadden v. JenTcyns, 1 Ph. [l) 27 Beav. 229 ; see alsoBaddelcy 
 
 153. V. jB., 9 Ch. D. 113 ; Seu-ell v. Kiriff, 
 
 (i) Dipple V. Corks, 11 Ha. 183. 14 Ch. D. 179. 
 
 {Jc) 3 My. & K. 36. (m) Supra, p. 51.
 
 54 EXPRESS TRUSTS. 
 
 evidenced did not point to a trust at all. The distinction 
 
 is, in short, that already quoted from the judgment in 
 
 Richards v. Delhridfje. 
 Two waj-s 3. There are two ways in wliich a settlor may deal with 
 ft vohm-"° his property so as to create an irrevocable trust in favour 
 tary trust, ^f volunteers ; and they are equally applicable, mutatis 
 
 mutandis, whether his interest in the property is legal or 
 
 merely equitable. 
 Transfer Q \ jijiHsou V. Ellisoii establishes that where there has 
 
 of Ic'^fll 
 
 iiitirest been an actual bond fide transfer of a legal interest upon 
 
 with trusts ^j.^g^g declared in favour of volunteers, these trusts will be 
 
 enforced in equity. It goes further, and is a clear authority 
 
 for the proposition that the enforcement of the trusts will 
 
 not be prevented by the fact that the legal estate by 
 
 accident gets back into the hands of the donor, to whom, 
 
 if it were transferred by the trustees, they would be guilty 
 
 of a breach of trust {n). 
 
 Locus _ As long, however, as the trusts have not been determined 
 
 asTon<^ as by the settlor, notwithstanding a transfer to trustees, he 
 
 trusts are ]^j^g g^ locus peniientice, and may call for a re-transfer of 
 
 dtclared. the legal estate, there being no remedy for or equity in 
 
 the would-be cestui que trusts until the declaration of the 
 
 terms of the intended trust (o). 
 
 2. Com- ^2.) Similarly, if his estate be equitable, and he assigns 
 
 assignment his equitable interest without consideration, doing all that 
 
 abfe^^^*" ^^ ^'^ ^^^ his power to do to pass the property, the transac- 
 
 interest. tion is irrevocable. As to realty a contrary doctrine was 
 
 indeed expressed in Bridge v. B. (p); but the subsequent 
 
 case of Gilbert v. Overton (q), supported as it is by 
 
 other authorities, among them the opinion of Lord St. 
 
 Leonards (r), is to be regarded as of greater weight. As 
 
 to personalty also, it was formerly held that an assignment 
 
 under seal of that which did not pass at law by the opera- 
 
 {n) M'Donndl v. Ilesilrige, 1(3 (/>) 16 Beav. 315, 327. 
 
 Beav. 346. (q) 2 H. & M. 110, 117. 
 
 (o) Re Sykcs' Trusts, 2 J. & H. (r) Sugd. V. & P. 719, 14th ed. 
 
 415.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 55 
 
 tiou of the assignment itself, unaccompanied by other acts, 
 was no better than a covenant or agreement to assign, and 
 was therefore not enforceable (r/i). But the case of Keke- 
 wich V. Manning {n), speaking with the authority of the 
 Lords Justices Knight-Bruce and Lord Cranworth, must 
 be considered as in effect overruling it. 
 
 (3.) On the other hand, it is not necessary, in order to 3. Settlor 
 render a trust in favour of volunteers enforceable, that himself 
 there should have been an actual transfer of the legal trustee, 
 
 and 
 
 mterest to trustees. It suffices if the settlor has con- declares 
 stituted himself a trustee and declared the trusts (o). trusts. 
 
 (4.) And similarlv, if the interest be equitable a valid f Dn-ect- 
 
 , . . "ig trus- 
 
 trust may be created by the owners du'ection to the tees to hold 
 
 trustees to hold the property in trust for the donee (p). t"ust1^^^^^ 
 
 Notice to the trustees in whom the legal estate is vested Notice 
 
 is necessary to protect the donee against third parties (q) ; °^J "eces- 
 
 but the trust is good as against the donor without it (7") ; against 
 
 nor is notice to the cestui que trust of the declaration of parties. 
 
 trust necessary (s). 
 
 4. Although if a conveyance in favour of a volunteer ^^i^take 
 
 . . or fraud 
 
 be complete it will usually be executed by the Court, vitiates 
 
 it will not be so if it arose from mistake (t) or fraud (u). ^ctions"^' 
 
 On the contrary, in such cases it will usually be 
 
 rescinded. 
 
 Again, Courts of equity will not only refuse to carry In absence 
 
 into effect a merely voluntary agreement, contract, or elements, 
 
 covenant to transfer property, by which the relation of™'^"*^" 
 
 ■■■■•■ ^ •' *' . . nous con- 
 
 trustee and cestui que trust is not fully constituted, but it sideratiou 
 
 will not be moved to assist a donee by the existence of a s^^ient 
 
 meritorious consideration only. Thus it will not enforce 
 
 a voluntary agreement or covenant, or give effect to an 
 
 (m) Meek v. Kettlewell, 1 Ha. 464, (5) Donaldson v. R, Kay, 711. 
 
 474. (r) Ibid. 
 
 (n) 1 De G. M. & G. 176. (s) Tait v. Leitliead, Kay, 658. 
 
 (0) Exp. Pye; Exp. Duhost, 18 Ves. {t) Manning v. Gill, 13 Eq. 485. 
 
 140, 150. (u) Chesterfield V. Janssen, 2 Ves. 
 
 {p) Rycroft v. Christy, 3 Beav. 238. sr. 125.
 
 66 
 
 EXPRESS TRUSTS. 
 
 Doctiine 
 affected by 
 statutes'. 
 
 Fraud on 
 creditors, 
 13 Eliz. 
 c. 5. 
 
 Fraudu- 
 
 lentintent, 
 
 express, 
 
 or 
 
 implied. 
 
 imperfect gift, tliongli designed as a provision for a wife or 
 children after marriage (x). 
 
 The main question to be decided in all the cases is that 
 above quoted from the judgment in Fortescue v. Barnett, 
 "whether any act remained to be done by the grantor 
 which, to assist a volunteer, the Court would not compel 
 him to do." And it should be remarked that this question 
 is considerably affected by several recent statutes by which 
 many kinds of property have been made assignable at law 
 which formerly were not so : e.g., policies of life assurance 
 by 80 & 81 Vict. c. 144, policies of marine assurance by 
 31 & 32 Vict. c. 86, debts and other legal choses in action 
 by the Judicature Act, 1873, sect. 25, sub-s. 6. It may 
 well happen under these statutes that an incomplete assign- 
 ment will be refused support, which, previous thereto, 
 might have obtained it on the ground that the grantor 
 had done all that he could do at law to pass the property. 
 
 D. Btatiiiory modijications. 
 
 1. By 13 Eliz. c. 5, " all covinous conveyances, gifts, 
 alienations of lands or goods, whereby creditors might be 
 in any way disturbed, hindered, delayed, or defrauded of 
 their just rights," are declared utterly void; but the Act 
 is not to extend to any estate or interest in lands, &c., on 
 good consideration, and bond fide conveyed to any person 
 not having notice of such covin. 
 
 Hence a voluntary settlement of real or personal property 
 may be set aside by a creditor of the settlor upon his 
 showing an intent on the part of the settlor to delay, 
 hinder, or defraud his creditors. This intent may be 
 actual and express (y), or it may be inferred in different 
 ways, as, for instance, by showing that the settlor was 
 insolvent at the time of the settlement, or even that he 
 was largely indebted (z), or that after deducting the settled 
 property, sufficient available assets were not left for pay- 
 
 la;) Jefferys v. /., Cr. & Ph. 138 ; 
 Dillon V. Coppin, 4 My. & Cr. G47. 
 
 (y) Spirett v. WUloivs, 3 De G. J. 
 & S. 293. 
 
 (s) Totvnsend v. Westacott, 2 Beav. 
 340; Tayloi' v. Coenen, 1 Ch. D. 
 C36.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 57 
 
 ment of the debts (a). To quote the Avords of Lord Wien 
 Hatherley in Holmes v. Penny (b), " The settlor must liave ""^* 
 been at the time, not necessarily insolvent, but so largely 
 indebted as to induce the Court to believe that the inten- 
 tion of the settlement, taking the whole transaction to- 
 gether, was to defraud the persons who, at the time of the 
 settlement, were creditors of the settlor." 
 
 It has been decided, however, that the protection of the Extends 
 Act is not limited to those who were creditors " at the creditors, 
 time of the settlement." A deed designed to defraud 
 future creditors, such as a settlement of all or nearly all 
 his present and future property, especially by a person 
 about to engage in trade, is void as against such credi- 
 tors (c). 
 
 A creditor may, by his concurrence with or acquiescence Creditor's 
 in a deed voidable under 13 Eliz. c. 5, preclude himself and lost b^f 
 his representatives from impeaching such deed (d), and an •'^cquies- 
 inquiry may be directed to ascertain whether any creditors 
 of a settlor had so acquiesced (e). 
 
 A purchaser from a volunteer under a deed void under Purchaser 
 the statute will be preferred to the general creditors who volunteer 
 have no specific charge (/). T^'^^^rtV 
 
 Choses in action, having since 1 & 2 Vict. c. 110, become choses in 
 
 available for the payment of debts under an execution, are '^^}\^}^ , 
 
 ": . withm the 
 
 withm the statute (g). statute. 
 
 A voluntary deed executed pendente lite for the purpose VoUmtary 
 of defeating any process in the nature of execution will be ^pendente "^ 
 set aside in equity {h) ; and also a cleed executed when ^''f ^et 
 a man knows that a decision is about to be pronounced 
 against him (i). 
 
 2. The Bankruptcy Act, 1809 {k), contains a clause more Bank- 
 
 («) Freeman v. Pope, 5 Ch. 538. (/) George v. Millanke, 9 Ves. 
 
 (6) 3 K. & J. 90. 190. 
 
 (c) Ware v. Gardner, 7 Eq. 317 ; (g) Stohoe v. Coican, 29 Beav. G37. 
 Mackay v. Douglas, 14 Eq. lOG. {/;) Blenkimopp v. B., 12 Bea\-. 
 
 (d) Olliver v. King, 8 De G. M. 568 ; 1 De G. M. & G. 495. 
 
 & G. 110. (i) Barling v. Bishop, 29 Beav. 
 
 (e) Freeman v. Pope, 9 Eq. 206, 417. 
 
 212. (A) 32 & 33 Vict. c. 71.
 
 58 
 
 EXPEESS TRUSTS. 
 
 ruptcyAct, 
 32 & 33 
 Vict. c. 71. 
 
 Excep- 
 tions in. 
 
 Fraud on 
 pur- 
 chasers. 
 27 Eliz. 
 c. 4. 
 
 Applies to 
 lands only. 
 
 Who are 
 pur- 
 chasers. 
 
 stringent in some respects against voluntary settlements 
 than 13 Eliz. c. 5, in that, with the exceptions to be men- 
 tioned, it makes void as against ci editors any settlement 
 made by a trader within two years previous to his bank- 
 ruptcy ; and in case of bankruptcy within ten years of 
 such settlement it throws upon the parties claiming under 
 the settlement the burden of proving that the settlor was 
 at the time of making it able to pay his debts (I). 
 
 It, however, excepts from its operation settlements made 
 before, and in consideration of marriage, or made in favour 
 of a purchaser or incumbrancer in good faith and for valu- 
 able consideration, or a settlement made on or for the 
 wife or children of the settlor of property which has 
 accrued to him after marriage in right of his wife. Such 
 settlements will, therefore, be upheld, irrespective of any 
 question of solvency (in). 
 
 The word "purchaser" in this section has been held to 
 mean a " buyer " in the commercial sense, not a purchaser 
 in the wide legal meaning of the word, this section differing 
 in this respect from 27 Eliz. c. 4 (ii). 
 
 3. By 27 Eliz. c. 4, it is enacted that every conveyance, 
 grant, charge, lease, limitation of use of, in or out of any 
 lands, tenements, or other hereditaments whatsoever, for 
 the intent and purpose to defraud and deceive such persons, 
 &c., as shall purchase the said lands, or any rent or profit 
 out of the same, shall be deemed only against such persons, 
 their heirs, &c., who shall so purchase for money or any 
 good consideration the said lands, &c., to be wholly void, 
 frustrate, and of none effect. 
 
 Thus a voluntary settlement of lands will be held void 
 against subsequent purchasers for value by the settlor, in- 
 cluding mortgagees (o), lessees (p), and trustees taking under 
 settlements for valuable consideration (q), even with notice 
 
 (?) Sect. 91. 
 
 (m) Exp. Bishop, 8 Ch. 718. 
 
 (n) Exp. EiUmun, 10 Ch. D. 622. 
 
 (o) Dolphin V. Ayhmrd, 4 L. R. 
 
 H. L. 486. 
 
 (|)) Leivia V. Hopkins, 9 East, 70, 
 cited. 
 
 (fj) Watkins V. Steevens, Nels. 160.
 
 I 
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 59 
 
 of the settlement (;•) ; and it is no support to a settlement 
 that it is a fair provision for a wife and children (s). 
 Volunteers, moreover, cannot restrain their settlor from 
 selling the settled estates (t). A judgment creditor is not 
 deemed to be a purchaser within the Act (it). 
 
 A conveyance apparently voluntary may be supported 
 by collateral evidence showing a contract for value (x). 
 
 A bond fide settlement, though voluntary, cannot be 
 defeated b}'" the conveyance for value of the heir or devisee 
 of the settlor (?/). Nor can a person who purchases for 
 value from one claiming under a second voluntary convey- 
 ance, or from any other than the person who made the 
 voluntary conveyance in his lifetime, claim the benefit of 
 the statute (z). 
 
 Where a voluntary settlement of land is avoided by a Volun- 
 subsequent sale for "^^aluable consideration, the volunteers ^^^^^ ^j^^ '^ 
 have no equity against the purchase money payable to the o^^ P""^- 
 
 Settlor («). I mo^ney. 
 
 It should also here be mentioned that a small and inade- Small con- 
 quate consideration is sufficient to support a settlement ^^^'■''!'^^'"i 
 against a purchaser (h). Thus, though leaseholds are to support 
 within the Act, if a person takes them subject to onerous chaser, 
 covenants, the liability so incurred is deemed a sufficient 
 consideration to support his title against a subsequent 
 purchaser (c). 
 
 There has been much discussion as to the sufficiency Considera- 
 and scope of the consideration of marriage under this !i*,°^.?!„„ 
 Act. 
 
 Marriage has always been recognised in both law and Valuable, 
 equity as a valuable consideration ; and it is quite clear 
 
 I 
 
 ()•) Doe V. Manning, 9 East, 59. {z) Richards v. Leids, 11 C. B 
 
 (s) Ihid. 1035. 
 
 (t) Pidvertoft V. P., 18 Ves. 84; (a) BaUny v. Whimper, 26 Beviv. 
 
 Buckle V. Mitchell, ihid. 100. 568. 
 
 {u) Beavan v. E. of Oxford, 6 De (6) Bayspool v. Collins, 6 Ch. 228, 
 
 G. M. & G. 507. 232. 
 
 [x) Pottv. TocUnmter, 2 Coll. 76; (c) Price v. Jenkins, 5 Ch. D. 
 
 Townend v. Toker, 1 Ch. 446. 619. 
 
 {y) Leu-is v. Bees, 3 K. & J. 132.
 
 60 
 
 EXPRESS TRUSTS. 
 
 Nut sup- 
 porting 
 post- 
 nuptial 
 settle- 
 ment. 
 
 Scope of 
 the con- 
 sideration. 
 
 Comp<ari- 
 son of 13 
 Eliz. c. 5, 
 and 27 
 Eliz. c. 4. 
 
 tliat an ante-nuptial written agreement, followed l)y mar- 
 riage, puts the wife and children of the settlor in the 
 position of purchasers within the statute (d). Whether a 
 post-iuiptial settlement made in consideration and pursu- 
 ance of an ante-nuptial parol agreement is good as against 
 a subsequent purchaser for value, even with notice, is doubt- 
 ful (e). In the case of such a settlement made without 
 referring to any previous agreement, though a previous 
 agreement had been made by the husband while an infant, 
 it was held that the settlement could not prevail against 
 a subsequent purchaser (/), and it is clear that a mere 
 post-nuptial settlement, without any ante-nuptial agree- 
 ment, is void against a subsequent purchaser even with 
 notice (g), though such a settlement will be supported on 
 very slight consideration (h). 
 
 As to the scope of the marriage consideration, it has 
 been held not to extend to collaterals, or the children of 
 a future marriage (i). But children of a former marriage, 
 and even a previously born illegitimate child of the wife, 
 were held to be entitled as against a subsequent purchaser 
 (Ji). A limitation in favour of collaterals, indeed, has been 
 supported where there has been a party to the settlement 
 who has purchased on their behalf (l). 
 
 4. It is convenient here to call attention to some import- 
 ant distinctions between 13 Eliz. c. 5, and 27 Eliz. c. 4, and 
 also to some matters which are common in their applica- 
 tion to both of those statutes. 
 
 (1.) It will have been observed that while 13 Eliz. c. 5, 
 applies to all covinous conveyances, and thus includes 
 
 (d) Kirk v. Cktrl; Prec. in Ch. 
 275 ; Teasdale v. BraitJnvaite, 4 Ch. 
 D. 85 ; 5 Ch. D. 630. 
 
 (e) Dundas v. Uutens, 2 Cox, 235 ; 
 Spurr/eon v. Collier, 1 Eden, 55; 
 Warden v. Jones, 2 De G-, & J. 
 7G. 
 
 (/) TromH v. Shenton, 8 Ch. D. 
 318. 
 (7) ButterfieUl v. Heath, 15 Beav. 
 
 408. 
 
 (/() Ilewison v. Nerjus, 16 Beav. 
 594 ; In re Foster d; Lister, 6 Ch. 
 D. 87. 
 
 (i) Wollaston v. Tribe, 9 Eq. 44 ; 
 Johnson V. Lerjard, 3 Madd. 283. 
 
 (k) Newstead v. Searles, 1 Atk. 
 265 ; Clarke v. Wrirjht, 6 H. & N. 
 849. 
 
 (/) Heap V. Tonr/e, 9 Ha. 104,
 
 I 
 
 VOLUNTARY CONVEYANCES AND TRUSTS. GL 
 
 chattels and choses in action as well as lands, 27 Eliz. c. 4, 
 relates only to fraudulent conveyances of lands (leaseholds, 
 however, included). Subsequent purchasers of chattels 
 personal, therefore, have no remedy under the statute 
 against a person claiming such under a prior voluntary 
 settlement. 
 
 (2.) A voluntary settlement under either statute is only Voluntary 
 interfered with as far as the purposes of the statute in ments only 
 question require. It may be void ao-ainst creditors in one ^^^'^'^^'^ 
 
 ^ ^ . , . . ^s far as 
 
 case, or purchasers in the other, but it is, nevertheless, necessary 
 valid against and irrevocable by the settlor or grantor him- po'g^^Tthe 
 self. He can not only not set aside the settlement, but he statutes, 
 cannot come into a Court of equity to enforce on an 
 unwilling purchaser the specific performance of a contract 
 for sale of an estate which he has previously settled (ni), 
 though the purchaser might so enforce the very same con- 
 tract (ii). It has, however, been decided that if the jDur- 
 chaser is willing to complete on a good title being shown, 
 the vendor may get a decree (o). 
 
 Similarly, also, if only a part of the settled estate has 
 been sold, and the settlement is set aside as to that part, 
 it nevertheless remains good as to the remainder (^j*) ; and 
 where a man by a voluntary deed, void against creditors, 
 conveyed real estate for the benefit of his wife and children 
 and afterwards became bankrupt, the surplus of the estate 
 so settled was held bound by the trusts of the settle- 
 ment (q). 
 
 E. Trusts for the payment of debts. 
 
 Voluntary trusts for the payment of debts are regulated Trusts to 
 by principles quite distinct from those which have been 
 above discussed, and must be considered separately. 
 
 A legal transfer of property for payment of the debts of Revocable 
 the ownef, as long as it is not known or concurred in by nuuiicated 
 
 (/rt) S/dith V. Garland, 2 Mer. (ij) Crohcr v. Martut, 1 Bligh, 
 
 123. N. S. 573; 1 D. & C. 15. 
 
 [h) Daldnfj v. Whimper, 26 Beav. (q) French v. F., 6 De G. M. k. 
 
 568 ; Troweil v. Shenton, sup. G, 95. 
 o) Peter v. NkoUs, 11 Eij. 391.
 
 62 
 
 EXPRESS TRUSTS. 
 
 to credi- 
 tors, 
 
 or acted 
 upon; not 
 80 after- 
 wards. 
 
 What is 
 sufficient 
 communi- 
 cation. 
 
 Creditor 
 party to 
 the deed. 
 
 the creditors, does not invest creditors with tlie character 
 o( cestui que trusts. It is considered merely as a direction 
 to the trustees as to the method in which they are to 
 apply the property vested in them for the benefit of the 
 owner of the property, who alone stands in the relation of 
 cestui que trust, and can vary or revoke the trusts at his 
 pleasure (7'). Courts of equity, therefore, will not, at the 
 instance of creditors, who are looked upon as mere 
 strangers, compel the trustees to execute the trusts for the 
 payment of debts (s). 
 
 Where, however, such a settlement has been acted 
 upon (t), or even, it seems, if it has been communicated 
 to the creditors, it can no longer be revoked by the settlor, 
 since the creditors, being aware of such a trust, might be 
 thereby induced to a forbearance in respect of their claims 
 which they would not otherwise have exercised, and after 
 which it would be unjust to disappoint them (u). And 
 if one of the creditors is made trustee for himself and 
 the other creditors, and the assignment has been com- 
 municated to him and received his assent, it cannot after- 
 wards be revoked by the assignor (a;). Again, where pro- 
 perty had been conveyed upon trust for payment of debts, 
 to a person who was surety for some of the debts, though 
 the creditors were neither parties nor privy thereto, the 
 trustee was held entitled to retain it until discharged 
 from his liability as surety (y). If also the trust has been 
 communicated to some creditors, it apparently cannot 
 after their debts are satisfied be revoked as to the remain- 
 ing creditors (z). 
 
 Where a creditor is party to a deed whereby his debtor 
 conveys property to a trustee to be applied in liquidation 
 
 (>•) Wulmjn V. Coiitts, 3 Mer. 707 ; 
 3 Sim. 14. 
 
 (s) Ibid. ; Garrard v. Lauderdale, 
 3 Sim. 1 ; 2 Russ. & M. 451 ; Acton 
 V. Woodfjate, 2 My. & K. 492. 
 
 (() Cosser v. Radford, 1 De G. J. 
 & S. 585. 
 
 (ii) Acton V. Woodgate, 2 My. & 
 K. 492, 495. 
 
 (.t) Slgijers v. Evaiis, 5 E. & B. 
 367. 
 
 ((/) Wildinf) V. Richanls, 1 Coll. 
 655. 
 
 (c) Griffith V. RicMts, 7 Ha. 307.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. G3 
 
 of the debt due to that creditor, the deed is as to him 
 irrevocable ; a valid trust in his favour is created (a) ; and 
 what is true where a single creditor is cestui que trust, is 
 of course equally so where there are many such. It suf- 
 fices also if a creditor is party to a deed^ though in 
 another right than as cestui que trust for the amount of 
 his debt (b). In a case where an assignment was made to 
 a trustee for the benefit of creditors, but no creditor was 
 aware of such assignment, it was held that the trustee 
 might sue in equity against a third party to recover pro- 
 perty of the settlor outstanding in such third party (c). 
 
 Though there is a time limited in the deed within 
 which creditors are directed to execute it, yet if by acci- 
 dent any of them fail to do so, they will not necessarily 
 lose the benefit of the trusts, if they eventually act under 
 or upon the faith of the deed, or acquiesce in it (d). 
 
 A creditor, however, who for a long time delays (e), or Long delay 
 who refuses to execute the deed, and does not retract his (j^ed or 
 refusal within the time limited (/), and d fortiori if he conduct 
 sets up a title adverse to the deed (g), will not be allowed the deed 
 to claim the benefit of its provisions. And generally the ^^^t^ , 
 
 ■■• _ ° -^ creditor s 
 
 Court before it permits a creditor to claim the benefit of claim. 
 a deed will see that he has performed all the fair condi- 
 tions of the deed ; and if he has taken any step incon- 
 sistent therewith, he will be deprived of all advantage 
 therefrom (h). 
 
 (a) Mackinnon v. Stewart, 1 Sim. (c) Gould v. Robertson, 4 De G. & 
 
 N. S. 88. Sm. 509. 
 
 {h) Montefiorc v. Bvoivn, 7 H. L. (/) Johnson v. Kershmo, 1 De G. 
 
 241, 266. & Sm. 260. 
 
 (c) GJegg v. Rees, 7 Ch. 71. (rj) Watson v. Knifjht, 19 Beav. 
 
 (d) Raworth v. Parker, 2 K. & J. 869. 
 
 16-3 ; In re Baler's Trusts, 10 Eq. (/() Field v. Donoiir/Jimore, 1 Dm. 
 
 554. & W. 227.
 
 G-k 
 
 IIESULTING TIIUSTS. 
 
 Section III. — Resulting Trusts. 
 
 DefLnition and Classification. 
 I. Parting luith Legal and retaining Equitable 
 
 Interest. 
 II. Purchase in name of TJdrd Persons. 
 
 III. Exceptions. 
 
 Preswinptlon of Advancement. 
 Dyer v. Dyer. 
 
 IV, Joint Purchases. 
 
 Lake v. Gibson. 
 
 Definition, 
 
 Classifica- 
 tion. 
 
 On what 
 
 groxmds 
 
 intention 
 
 to retain 
 
 equitable 
 
 interest is 
 
 presumed. 
 
 Express 
 
 intention. 
 
 Where the owner of property so deals with it that 
 eqviity presumes an intention on his part to sever the legal 
 and equitable interest, it gives effect to such presumed 
 intention by applying the principle of trusts. These 
 trusts are termed resulting (or, by some authors, implied) 
 trusts. 
 
 There are two leading classes of resulting trusts. First, 
 where an owner parts with the legal estate by conveyance, 
 devise, or bequest, and equity presumes that he had no 
 intention to part with the equitable interest. Secondly, 
 where a purchaser directs a conveyance of the legal estate 
 to be made to a third person, but equity presumes an in- 
 tention to retain the equitable interest. 
 
 I. Resulting trusts where an owner parts with the legal 
 interest intending to retain the equitable. 
 
 The inquiry suggested by this class of cases is, on what 
 oTounds the Court will now hold that a settlor or testator 
 did not intend to part with the equitable interest ? 
 
 (1.) WJtere such intention is exjjvessed. 
 
 The clearest case is where an intention not to benefit
 
 PARTING WITH BARE LEGAL ESTATE. 05 
 
 tlie grantee, devisee, or legatee is actually expressed upon 
 the instrument which transfers the legal estate. 
 
 We have already seen that where a trust is evidently ^^ "o trust 
 
 . 1111 specified, 
 
 intended to be created, the person into whose hands the it i-eHults 
 legal estate is transferred cannot hold it beneficially (p. 80). **" '^^"^'"^ 
 Thus where a bequest is made to a person " upon trust," 
 and no trust is declared (i), or the trusts declared are too 
 vague to be executed (/v), or are void for unlawfulness (/), 
 or fail by lapse (r/i), the trustee can have no pretence for 
 claiming the beneficial ownership, the whole property being 
 clearly impressed with a trust. In such cases, therefore, 
 the trust will result to the settlor or his representatives, or his re- 
 tire heir as to realty, the next of kin as to personalty ; and tives. 
 the trustee cannot defeat the resulting trust by parol 
 evidence in his favour (n). 
 
 (2.) Where the intention is i^ resumed. Presumed 
 
 ,. N T • T 11 1 • • 1 f •, intention. 
 
 (i.) It was an ancient and well known principle ot equity 
 before the Statute of Uses, that when a feoffment of real 
 estate was made to a person without consideration, the 
 use at once resulted to the feoffor, and in equity he con- 
 tinued to enjoy the beneficial interest. The same prin- Resulting 
 ciple is still applicable, but, as we shall see, upon some- 
 what different terms from those which were anciently 
 regarded with respect to uses. Formerly, a consideration, 
 however trifling, was sufficient to entitle the feoffor to the 
 use of the lands of which he was enfeoffed. Modern con- 
 equity, however, makes a wnder inquiry than as to the ^fj]^ 
 mere payment or non-payment of a nominal consideration, modern 
 before it decides as to the title to the beneficial enjoy- 
 ment; and it is especially vigilant to observe any indications 
 of fraud or mistake having affected the transaction (o). 
 
 (0 Dawson v. Clarle, 18 Ves. 247, C. C. 503, ct infra, p. 434, et seq. 
 254 ; Barrs v. Fewke, 2 H. & M. 60. {n) Langham v. Sanford, 17 
 
 (Z) Foioler v. Garlihe, 1 R. & M. Ves. 442 ; 19 ib. 643 ; Irvine v. 
 
 232 ; Leavers v. Clayton, 8 Ch. D. Sallkan, 8 Eq. 673. 
 584. (o) Birch v. Blagrave, Amb. 264 ; 
 
 (?) Carrich v. Errington, 2 P. Lloyd v. Spillet, 2 Atk. 150. As 
 
 Wms. 361. to tiie doctrine of advancement, see 
 
 (m) Ackroijd v. Synithson, 1 Bro. Dyer v. Dyer, infra, p. 71. 
 
 F
 
 GG 
 
 RESULTING TRUSTS. 
 
 Where 
 tleclareil 
 trusts do 
 not cx- 
 h.aust the 
 property. 
 
 Special 
 rules as to 
 charities. 
 No result- 
 ing trust 
 where a 
 general in- 
 tention of 
 charity 
 expressed ; 
 
 nor where 
 
 trusts 
 declared at 
 the time 
 exhaust 
 the pro- 
 ceeds. 
 
 But trust 
 results 
 where all 
 is not at 
 first dis- 
 posed of. 
 
 Contrast 
 between 
 
 (ii.) Porhaps the most iinpoitant class of cases under 
 this head are those in which a settlor conveys property on 
 trusts which do not exhaust the whole property. In such 
 cases generally there will be a resulting trust in favour of 
 the settlor of so much of the i^roperty as is unaffected by 
 the trust declared {p). 
 
 With respect, however, to gifts to charities, there are 
 certain special rules which must be observed (g). 
 
 Where a person makes a valid gift, whether by deed or 
 will, and expresses a rjeneral intention of charity, but 
 either particularises no objects (r), or such as do not 
 exhaust the proceeds (.s), the Court will not suffer the 
 property in the first case^ or tlie surplus in the second, to 
 result to the settlor or his representative, but will take 
 upon itself to execute the general intention, by declaring 
 the particular purposes to which the fund shall be applied. 
 
 Where a person settles lands, or the rents and profits of 
 lands, to purposes which at the time exhaust the proceeds, 
 but in consequence of an increase in the value of the 
 estate an excess of income subsequently arises, the Court 
 will order the sui'plus, instead of resulting, to be applied 
 in the same or a similar manner with the original 
 amount (t). 
 
 But even in the case of a charity, if the settlor do not 
 give the land or the whole rents of the land, but, noticing 
 the property to be of a certain value, appropriates part 
 only to the charity, the residue will then, according to the 
 circumstances of the case, either result to the heir-at- 
 law {u), or if the donee be itself an object of charity (as 
 in tlie case of a charitable corporation) will belong to the 
 donee subject to the charge {x). 
 
 (iii.) The distinction must be observed between a devise 
 
 {p) Parnell v. Hinrjaton, 3 Sm. & (t) Beverley v. Att.-Gen., 6 H. L. 
 
 G. 337, 344. 310. 
 
 (g) Lewin, 7th edit. p. 147. (u) Att.-Gen. v. 3f. of Bristol, 2 
 
 (r) Att.-Gen. v. Herrkl; Amh. J. & W. 308. 
 712. {x) Beverley v. Att.-Gen., sup.; 
 
 (s) Att.-Gen. v. Tanner, 2 Ves. Att.-Gen. v. South Moulton, 5 H. 
 
 jr. 1. L. 1.
 
 PARTING WITH BARE LEGAL ESTATE. G7 
 
 to a pers()n for a particular purpose Avith no intention uf ^I'^rgo ami 
 conferring a beneficial interest, and a devise with a view special 
 of conferring a beneficial interest, but subject to a par- P^'l'os*^^ 
 ticular direction. If a testator gives to A. and liis heirs 
 all his real estate charged with his debts, that is a devise 
 which includes a particular purpose, but is not restricted 
 to it. The devisee, therefore, takes the beneficial interest 
 subject to the debts ; but if the testator devises all his 
 real estate to A. and liis heirs upon trust to pay his debts, 
 that is a devise solely for a particular purpose, with no 
 intention to confer a beneficial interest. If there be any 
 surplus, therefore, after payment of the debts, it results to 
 the heir of the testator (i/). 
 
 3. This sj)ecies of resulting trust being dej)endent upon Parol evi- 
 presumption of law, may be rebutted as to instruments jeeds inter 
 inter vivos by parol evidence of the settlor's intention (z). *■''.'<>'*. ^^■ 
 
 • n 1- 1-111 missible to 
 
 For the extensive class oi resultnig trusts which depend rebut the 
 upon the doctrine of conversion, and which Avould in a strict [-q*!^"'"^'' 
 classification be here treated of, see infra, p. 434', d seq. 
 
 II. Purchases in the Names of Third Persons. 
 
 (I.) The second order of resulting trusts comprises those Where 
 which arise when a person purchases an estate but takes takes a 
 a conveyance in the name of another person. ance m' 
 
 The general principle on which they rest may be thus name of a 
 illustrated. Suppose A. advances the purchase-money of pglJ^j 
 a freehold, copyhold, or leasehold estate, and a conveyance, iii»«- 
 surrender, or assignment of the legal interest in it is made 
 either to B., or to B. and C, or to A., B. and C, jointly or 
 successively ; in all these cases if B. and C. are strangers, a 
 trust will result in favour of A. The doctrine applies 
 equally to real and personal property («)• 
 
 (y) King v. Denlson, 1 V. & B. 42, 50; Foides v. Pascoe, 10 Cii. 343. 
 272. (a) Sidmouth v. S., 2 Beav. 447, 
 
 (z) Cook V. Hutchinson, 1 Keen, 454. 
 
 F 2
 
 68 lil::SL'LTING TKUSTS. 
 
 Ill connexion therewith it will be convenient first to 
 consider some important rules of evidence respecting these 
 trusts. 
 When (2.) General rules of evidence. 
 
 dence ad- (i-) If the advancc of the purchase-money by the real 
 prov^b ^"^ pwichaser does not appear on the face of the deed, and 
 whom pur- cven if it is stated to have been by the nominal purchaser, 
 money is P^^'o^ evidence is admissible to prove by whom it was 
 paid. actaally made {h), resulting trusts being, by sect. 8, 
 
 expressly excepted from the operation of the Statute of 
 Frauds. 
 
 But where the trust does not arise on the face of the 
 deed itself, the parol evidence must prove the fact of the 
 advance of the purchase-money very clearly {c) ; and doubt 
 has been expressed whether such evidence is admissible 
 after the death of the nominal purchaser {d). It is not, 
 however, easy to see how his death affects the principle (e). 
 If the nominal purchaser admits the payment of the money 
 by the real purchaser, a trust will doubtless result (/) ; and 
 where he, by answer to a bill, denied such payment, parol 
 evidence was admitted to contradict him {g). 
 
 In a case in which a defendant purchased an estate in 
 his own name with his own money, and the plaintiff 
 alleged that he did so as agent for him, which the defendant 
 denied, parol evidence tendered by the plaintiff to prove 
 a verbal agreement constituting the agency was rejected, 
 on the ground that such a case was not within the exceji- 
 tion of the statute, since no trust there arose by operation 
 of laAv, but it was sought to raise one by parol evidence of 
 an agreement (A). But this decision has been questioned 
 as being inconsistent with the principle that the Statute of 
 Frauds is not to be made an instrument of fraud (/). 
 
 [h) Peachnfs Case, Sugd. V. & P. (t) Lench v. L , 10 Ves. 511, 517. 
 
 910, 11th ed. (/) Eyal v. li., 1 Atk. 58. 
 
 (c) Gascoirjne v. Thioiny, 1 Vera. {fj) Gascoigne v. Thwing, sup. 
 
 366 ; Willis v. W., 2 Atk. 71. [h) Barthtt v. Piclersgill, 1 Eden, 
 
 {d) Sandars on Uses, 1, .354, 5th 515. 
 
 ed. ; CliaJk v. Darners, 1 Ch. Ca. li) Heard v. Pilley, 4 Ch. 548. 
 310.
 
 PURCHASES IN THE NAMES OF THIIJD PERSONS. 69 
 
 (ii.) Parol evidence is admissible to prove that a pur- 'i'"' F'^^'o 
 
 111 ^ • ^ IHircliase 
 
 chase has been made witli trust money, and upon that with tmst 
 being proved a trust will result in favour oi the cestui que ™""^">- 
 trust, the real owner of the money (/■). 
 
 (iii.) Since rcsultino- trusts arise from equitable pre- ?"° ^'"^^^' 
 
 • 1 11 1 , , • T 1-1 intention 
 
 sumption, they may be rebutted by parol evidence which ofadvancc- 
 shows an intention in the person advancing the purchase- ™^"*' 
 money that the person to whom the property was trans- 
 ferred should take for his own benefit (0 ; and such an 
 intention existing at the time of the purchase cannot be 
 subsequently altered (m). Resulting trusts may also be Presnmp- 
 rebutted as to part and prevail as to the other part, as butted'in 
 where an intention is proved to confer a life interest on P^i't- 
 the nominee (v). 
 
 (iv.) Parol evidence of interested parties is admissible to Evidence 
 rebut a resulting trust, but in order to be sufficient for that i-ested 
 purpose it must be at least corroborated by surrounding parties, 
 circumstances (o). 
 
 (v.) The presumption of a resulting trust will be Acquies- 
 
 CGT1C6 
 
 rebutted by acquiescence for a considerable time in the 
 enjoyment of the property by the person in w^iose name it 
 was purchased (p). 
 
 (vi.) And where there is an express trust declared upon Express 
 a purchase made in names of strangers, though but by evidenced, 
 parol, there can be no resulting trust ; for resulting trusts, 
 though excepted from the Statute of Frauds, were only 
 left as they were before the Act, and a bare parol 
 declaration before the Act would have prevented any 
 resulting trust (q). 
 
 (k) Lench v. L., sup. Foicles v. Pascoe, 10 Ch. 343. 
 
 (?) GoodHght v. Hodfjes, 1 Watk. (o) Fowles v. Pascoe, sup. 
 
 Cop. 227, Lofft. 230; Redlnrjton v. {p) Delane v. D., 7 Bro. P. C. 
 
 R., 3 Eidg. P. C. 178. 279 ; Clegg v. Edmondson, 8 De G. 
 
 (m) Groves v. G., 3 Y. & J. 163, M. &G. 787. 
 
 172. (q) Bellasis v. Comptov, 2 Vern. 
 
 («) Lane v. Digldon, Amb. 409 ; 294; Aijerst v. /ch^-///.s16 Eff. 275.
 
 70 RESULTING TRUSTS. 
 
 III. Exceptions from the General Rule in such 
 Purchases. 
 
 Where it 1 . There will be no resulting trust where the policy of 
 travene an an Act of Parliament would be thereby defeated. Thus 
 i^°^"^ it was held that no trust resulted in favour of a person 
 
 Parha- , . . T , 
 
 ment. advancing the purchase-money of a ship registered in the 
 name of another, for the register, according to the policy of 
 the old Registry Acts, was conclusive evidence of owner- 
 ship both at law and in equity (/■). By the Merchant 
 Shipping Act, 1854 (.s), however, after enacting that not more 
 than thirty-two individuals shall be entitled to be registered 
 at the same time as owners of any one ship, it is provided 
 that that rule shall not affect the beneficial title of any 
 numbers of persons, or of any company represented by or 
 claiming under or through any registered owner or joint- 
 owner. S. 37 (2). Where, moreover, a person having no 
 title to a ship procures it to be registered in his name, 
 the Court of Chancery will compel liim to retransfer it to 
 the rightfid owner, and account for the earnings, even 
 though there have been no fraud, and notwithstanding the 
 Merchant Shipping Act (t). 
 
 On a similar principle, a trust will not, it seems, result in 
 favour of a person who has purchased an estate in the name 
 of another in order to give him a vote in electing a mem- 
 ber of Parliament (?(). Where, moreover, a person having 
 deposited moneys in a savings bank up to the full amount 
 allowed by statute, made further deposits to an account in 
 his own name in trust for his sister, giving her no notice of 
 the investment, it was held that the only intention being 
 to evade the Act of Parliament, no trust was created, and 
 the claim of the sister was refused (*■). 
 
 ()•) Ex2^. Gallop, 15 Ves. 60, 68. 129. 
 
 (s) 17 & 1 8 Vict. c. 104, amended (u) 6Vows v. fr'., 3 Y.& J.163, 175. 
 
 by 25 & 26 Vict. c. 63. {x) Field v, Lonsd<de, 13 Bcav. 78. 
 (t) Holder ness V , La7nport, 29 Beav.
 
 EXCEPTIONS FBOM GENERAL RUEE IN SUCH PURCHASES. 7l 
 
 2. Presumption of advancement. 
 
 A more important class of cases is that which springs Presump- 
 from the doctrine of advancement. On this a leading aXance- 
 aiithority is ment. 
 
 DYER V. DYER. 
 
 [2 Qox, 92 ; 1 ^Y. & T. L. C. 223.] 
 
 There copyholds were granted to A. and B. his wife and 
 C his younger son to take in succession for their lives and 
 the life of the survivor. The purchase-money was all paid 
 by A. Nevertheless, C. being a son of A. was held not to be 
 a trustee of his life interest for A., but to take beneficially, 
 the presumption being that the purchase was intended by 
 the father to effect an advancement of the son. 
 
 (1.) The general rule applying equally to real and per- General 
 sonal property is that where a purchase is made in the 
 name of a child there will ijrimd facie be no resulting 
 trust for the parent, but, on the contrary, a presumption ^" favoixr 
 arises that an advancement was intended. For this Dyer dren, 
 v. Dyer is a very strong authority, since there the purchaser 
 had given some indication of an intention contrary to 
 advancement by having actually devised the purchased 
 property {y). 
 
 (2.) The j)resumption of advancement arises not only in or where 
 favour of children, but also in that of persons towards whom stands in 
 the purchaser has put himself in loco parentis. Thus an ^'^'''^ 
 
 T)CtV€)ltlS 
 
 illegitimate child (z), a grandchild («), and the nephew of a 
 wife (b), and many others in similar circumstances, have 
 been held entitled to the benefit of property purchased in 
 their name. In the case of a grandchild, however, it is 
 important to inquire whether his father is living, as it has 
 been held that if so the locus loarentis of the grandfather 
 will not avail to raise the presumption (c). 
 
 (y) Finch \. F., 15Ves. 43 ; Sid- (h) Currant v. Jarjo, 1 Coll. 261. 
 
 moxdk V. S., 2 Beav. 454. [r) Tacler v. Burron; 2 H. & M. 
 
 (-) Bed-ford v. B., Lofft. 490. 515. 
 («) Ebrandv, Dancer,2 Ch. Ca.26.
 
 72 
 
 RESULTING THUSTS. 
 
 or of a 
 
 wife. 
 
 Not where 
 a mother 
 purchases 
 in the 
 name of a 
 child, 
 
 or of a 
 husband. 
 
 Vendor 
 must 
 convey to 
 a wife or 
 child if 
 purchase 
 is in their 
 name. 
 
 (:>.) The presumption also rises in fiivour of a wife (d); 
 and also where there has been a purchase in the joint 
 names of the purchaser, his wife, and a stranger (e). 
 
 But tlicre is no similar presumption if the purchaser 
 stands merely in loco mar it i, and has purchased in the 
 name of a woman with whom he has been cohabiting, or 
 has illegally gone through tiie form of marrying, such as a 
 deceased Avife's sister (/'). 
 
 No presumption of advancement a,rises in the case of a 
 purchase by a manied woman out of her separate estate in 
 the names of her children, she being under no legal obliga- 
 tion to provide for them (g) ; and though by sect. 14 of the 
 Married Women's ProjDerty Act {li) married women are 
 made liable to maintain their children out of their separate 
 property, the obligation is not of the same nature as that of 
 the father, and no presumption of advancement arises in 
 the absence of other evidence of such intention (i), A 
 fortiori it is submitted that notwithstanding the similar 
 provision in sect. 13, no presumption would arise in case of 
 a purchase in the name of a husband. A widowed mother, 
 however, is, it seems, a person standing in such relation 
 to her child as to raise a presumption in favour of her 
 child {j); and of course in all such cases, if apart from 
 the relationship an intention to advance is proved, there 
 is no resulting trust (/.;). 
 
 Where a contract is entered into to purchase real pro- 
 perty in the name of a wife or child, although the wife or 
 child, being volunteers, could not sue for specific perform- 
 ance of the contract, nevertheless, if the vendor enforces, 
 or is entitled to payment out of the husband's estate, the 
 conveyance must be made to the wife or child {I). A 
 
 G7. 
 
 17. 
 
 {d) Klngdon v. Brklrjes, 2 Vern. 
 h 
 
 (e) Re Eykyn's Tr., G Ch, D. 115. 
 
 (/) Soar V. Foster, 4 K. & J. 152. 
 
 ((j) Re de Visme, 2 De G. J. & S. 
 J. 
 
 (h) 33 & 34 Vict. c. 93. 
 
 (i) Bennet v. B., 10 Ch. D. 474, 
 
 0) Sayre v. Iluyhcs, 5 Eq. 376 ; 
 Batstone v. Salter, 10 Ch. 431. 
 
 (A) Beecher v. Major, 2 D. & Sm. 
 431. 
 
 (l) Redington v. R., 3 Ridg. P. C. 
 196 ; Dre^c v. Martin, 2 H. & IM. 
 130.
 
 DOCTRINE OF ADVAXCEMENT. 7:j 
 
 binding contract to i^urcliase in the joint names of a man 
 and his wife has been held to entitle the wife to the bene- 
 fit of the purchase as survivor {m). 
 
 3. Many circumstances have been taken into considera- Circum- 
 tion as rebutting the presumption of advancement ; but ffir^e^i 
 most of those formerly of weight are not now regarded, rebutting 
 Thus at one time the infancy of the child was a circumstance sumption 
 against the purchase being considered an advancement ; ^° "°* ^"^ 
 at present it tells strongly m the opposite direction (n). 
 Again, it was once an argument against advancement 
 that the property purchased was reversionary, and there- 
 fore not a proper provision for a child ; but this would not 
 now be of any avail (o). Lord Hardwicke regarded a 
 purchase in the joint names of the parent and child as a 
 weaker case for advancement than a purchase in the name 
 of a son alone (p). Such a circumstance would now have 
 little if any weight. The stranger, in such a purchase, 
 would hold his share in trust for the father; the child would 
 be considered advanced to the extent of his interest (q). 
 
 If a child has been already fully advanced, this affords Presump- 
 an objection to the presumption, and the child may butted'if 
 be held a trustee for its father ; but such a circumstance is child fully 
 by no means conclusive (r). Partial advancement is of no ^'^ ^^'^^^ 
 weight against a child (s). It has been sometimes regarded 
 as evidence of the absence of intention to advance, if the 
 father remains in receipt of the rents or profits of the 
 estate or fund purchased. The objection is, however, now 
 v/ithout weight, certainly if the child is an infant (t), and 
 apparently also if he is adult, unless strengthened by the 
 additional circumstance of his being already fully ad- 
 vanced (u). 
 
 (in) Vance v. V., 1 Beav. 605. 599 ; Dummer v. Pitcher, 2 My. & 
 
 (w) Lamplwjh v. L., 1 P. Wms. K. 262, 272. 
 Ill ; Finch V. F., 15 Ves. 43. ()•) Ilcpworth v. H., 11 Eq. 10. 
 
 (o) Rmnholl v. R., 2 Eden, 15, 17 ; (•?) Redinrjton v. R., sup. 
 
 Williams v. W., 32 Beav. 370. (t) Loyd v. Reid, 1 P. Wms. 688. 
 
 (p) Pah V. P., 1 Ves. sr. 70. («) Grey v. G., 2 Swanst. 594, 
 
 (9) Grey v. G., 2 Swanst. 594, 600,
 
 74 
 
 RESULTING TRUSTS. 
 
 Advance- 
 ment void 
 against 
 creditors. 
 
 Child 
 Solicitor 
 for the 
 parent. 
 
 Son may 
 repudiate 
 onerouH 
 property. 
 
 Unpaid 
 purchase- 
 money 
 payable 
 out of 
 father's 
 assets. 
 
 Evidence 
 to rebut 
 the pre- 
 sumption. 
 
 Contem- 
 poraneous 
 acts of 
 father. 
 
 Sub- 
 sequent 
 acts not 
 admissible. 
 
 Where an advancement is made by a person largely in- 
 debted at the time, it will be void as against creditors 
 nnder 13 Eliz. c. 5 (?') ; but 27 Eliz. c. 4, has no similar 
 application in favour of purchasers (x). 
 
 And where the relation of client and solicitor subsists 
 between the parent and child, tlie ordinary presumption in 
 favour of advancement will be excluded, and the burden 
 of proving its validity will bo thrown on the son acting as 
 solicitor (y). 
 
 Where a father makes a purchase in the name of a son, 
 of property which is attended with risk of loss, the Court 
 may on the part of the son repudiate his interest, in which 
 case the father remains liable (z). 
 
 In a case of advancement, where part of the purchase- 
 money remains unpaid, it is a debt payable out of the 
 assets of the father ((/). 
 
 4. Rides of evidence as to presuinption of advance- 
 ment. 
 
 (1.) The jDresumption of advancement may be rebutted 
 by evidence of facts showing the father's intention that the 
 son should take the property as a trustee, and not for his 
 own benefit. Such facts must, however, have taken place 
 antecedently to, or contemporaneous and in immediate 
 connexion with, the same transaction (6). For instance, 
 if there is, on the purchase, an immediate and formal 
 taking possession by the father, as by entering into a shop 
 and putting his name over the door, that would be suffi- 
 cient to establish ownership in the father and trusteeship 
 in the son (c). 
 
 Subsequent acts, however, are not admissible in evidence 
 against the son's interest. Thus a devise as in Dyer v. Dyer, 
 
 ((•) Christy v. Courtenay, 13 Beav. 
 90. 
 
 (x) Drew v. Martin, 2 H. & M. 
 130, 133. 
 
 (y) Garrett v. Wifhinson, 2 Pe G. 
 & Sm. 244. 
 
 (-) lieid's Case, 24 Beav. 318 ; 
 
 Weston's Case, 5 Ch. 614. 
 
 (rt) Skidmore v. Bradford, 8 E(|. 
 134. 
 
 {b) Grey v. G., 2 Swanst. 594 ; 
 CoUinson v. C, 3 De G. M. & G. 409. 
 
 (c) Stock V. M'Aroy, 15 Eq. 5.'), 
 59.
 
 DOCTRINE OF ADVANCEMENT. 75 
 
 or a mortgage ((/), or other such disposition of the property 
 is of no avail (e). 
 
 (2.) The presumption of advancement may also be Parol 
 rebutted by evidence of parol declarations of the father tjons con- 
 contemporaneous with the purchase ; but not of any decla- tempo- 
 
 raneous; 
 
 rations made subsequently (/ ). not sub- 
 
 (3.) A fortiori parol evidence may be given by the son ^^.'^^i*- 
 to show the intention of the father to advance him, such to support 
 evidence being in support of both the legal interest of the sumption, 
 son, and the equitable presumption (g). 
 
 (4.) The acts and declarations of the father subsequent Acts and 
 to the purchase, though not admissible in his favour, are tions of 
 admissible ao^ainst him in favour of the son CA), and it ^'^^'^^^ ^^^" 
 
 ° . sequent. 
 
 seems that subsequent acts and declarations of the son can 
 be used against him by the father ; though they would not 
 be sufficient to counteract clear evidence of the father's 
 original intention to advance the son (i). 
 
 (5.) The father may not tender evidence in support of Evidence 
 the trust, the effect of which would be to show that the fraud on 
 transfer was intended to effect a fraud on the law, such as *^! ^^7 • 
 
 ' not admis- 
 
 a conveyance of lands to the son for the purpose of quali- sible for 
 
 fying him for an office or a vote (/v). 
 
 (6.) Any surrounding circumstances may be taken into Surround- 
 
 consideration to rebut the presumption of advancement, cum-"* 
 
 Thus where a husband pays money into a bank to an stances 
 
 ,.,..„, , . con- 
 
 account opened m his wite s name, and it appears that the sidered. 
 
 account was opened for convenience sake, the intention 
 
 being not to give the wife any interest in the money, but 
 
 to enable her to act as agent, the money will remain the 
 
 property of the husband (l.) In another case, where it 
 
 was considered that the ti'ansfer of tlie husband's account 
 
 into the joint names of himself and his wife was made in 
 
 (d) Bach V. Andrew, 2 Vern. 120. (h) Balington v. R., .3Ilidg. P. C. 
 
 (e) MurlessY. Franklin,! Swanst. 195, 197. 
 
 13. (/) Sklnioutk V. S., sup. ; Jeans v, 
 
 if) Elliott V. E., 2 Ch. Ca. 231 ; Cooke, 24 Beav. 513, 521. 
 
 Sidmouth V. ,S'., 2 Beav. 447, 456. {k) Childers v. C, 3 K. & .J. 310 ; 
 
 (g) Lampluyh v. /.. 1 P. Wms. Mag wM., 33 Beav. 81. 
 
 113. (I) Llotjd V. I'vghe, 8 Ch. 88.
 
 70 
 
 RESULTING TRUSTS 
 
 order to enable the Avife to draw cliC(|ueR, the same con- 
 clusion ■\vas reached {m). 
 
 General 
 rule at 
 law. 
 
 How 
 
 viewed in 
 equity. 
 
 Leaning 
 against 
 joint 
 tenancy. 
 
 Unequal 
 
 IV. Resulting Trv.f^is arising from Joint Parchasefi. 
 
 The principal authority on this species of trusts is 
 
 LAKE V. GIBSON. 
 LAKE V. CRADDOCK. 
 
 [.3 P. Wms. 158 ; 1 W. & T. L. C. 200.] 
 
 In this case five persons purchased an estate as joint 
 tenants in fee, but contributed rateably towards the pur- 
 chase, after which some of them died. They were held to 
 be tenants in common in equity ; and though one of the 
 five deserted the partnership for 30 years, yet he was let 
 in afterwards on terms. 
 
 1. It is an invariable rule at law that when purchasers 
 take a conveyance to themselves and their heirs they will 
 be joint tenants and upon the death of one of them the 
 estate will go to the survivor. The judgment of Sir J. Jekyll 
 in the above case, expresses as clearly as possible how 
 equity regards and treats this rule. Equity follows the 
 law, except where circumstances exist which give rise to 
 the presumption that the parties did not intend the rule 
 of law to apply (n). This case shows that an unequal 
 advance of the purchase money is regarded in equity as 
 such a circumstance. In applying the rule thus stated, it 
 must be remembered that in equity there is a strong 
 leaning against joint tenancy ; and it readily seizes on any 
 circumstance from which it can be reasonably implied that 
 a tenancy in common was intended, so that it may hold 
 the survivorsof joint purchasers trustees of the legal estate 
 for the representatives of the deceased purchaser. 
 
 Sir J. Jekyll qualified the general rule which he laid 
 
 (m) Mo-shal v. CrutiveU, 20 Eq. 2 Ves. sr. 258 ; AvcVinrj v. Knipc, 
 328. 19 Ves. 441. 
 
 (n) Iltgden v. VaUier, 3 Atk. 735;
 
 ARISING FROM JOINT PURCHASES. ll 
 
 down by requiring, in order to justify the interference of •'^'^^^^^^*^° "^ 
 equity with the rule of law, not only an unequal advance money, 
 of purchase-money, but also that this should appear from 
 the deed itself. Lord Hardwicke, however, lays doAvii the 
 same rule v,'ithout this qualification (o). 
 
 2. Other circumstances than unequal advances mav ''^"'"'' 
 
 on • ^ • 1 • ^ mortgages. 
 
 siimce to raise the presumption that tenancy m common 
 was intended. Perhaps tlie most important class of such 
 cases are those which arise in what are at law joint mort- 
 gages. At law the debt and security belong to the sur- 
 vivor. In equity, whether the money was advanced 
 equally or unequally, mortgagees are deemed to be tenants 
 in common, and the survivor is held to be a trustee for the 
 personal representatives of the deceased mortgagee (25). It 
 follows that the personal representatives of a deceased mort- 
 gagee are necessary parties in an action for foreclosure or 
 redemption {q), and although the entire legal interest is in 
 the survivor, they are necessary jjarties to a reconveyance, 
 as they alone can give a valid discharge for their predeces- 
 sor's share of the mortgage money ; that is, of course, 
 unless the mortgage deed contained a clause rendering the 
 receipt of the survivor sufficient. And if joint mort- 
 gagees purchase or foreclose the equity of redemption, 
 they will still be held in equity tenants in common, on the 
 ground of presumed intention (y). 
 
 In Robinson v. Preston (s) a similar intention was pre- 
 sumed in the case of a purchase of stock and the opening 
 of a bank account in their joint names by two sisters who 
 resided together. The monies so dealt with arose from 
 rents of land of which they were tenants in common. On 
 this ground, strengthened by the facts that other monies 
 similarly arising were invested on mortgage, the deed of 
 whicli contained a declaration against joint tenanc}', and 
 
 (o) Rlgden v. Vallier, sup. ; Harrl- 529. 
 
 son V. Barton, 1 J. & H. 287, 293. (r) R'njden v. Vallier, siqx 
 
 (t>) Morky v. Bird, 3 Ves. 631. (s) 4 K. & J. 505. 
 (q) VicJcers v. 'Cowelf, 1 Beav,
 
 78 RESULTING TRUSTS. 
 
 further that the survivor (against whom, oi' course, her own 
 declaration might be read), by her will, executed iu the lite- 
 time of the deceased, spoke of " her share " of the property 
 iu question, and affected to dispose of it in favour of her 
 sister, Vice-Chancellor Page Wood declared that the sisters 
 Avcre tenants in common in equity of the stock and bank 
 balance. It should be mentioned, however, that in a some- 
 what similar, though distinguishable case, Lord Romill}" 
 came to a different conclusion (t). 
 Parol cvi- It seems that parol evidence of subsequent dealings, as 
 missible to Well as of surrounding circumstances, is, on a purchase by 
 show in- ^^Q persons contributing equally, admissible to prove an 
 hold intention to hold in severalty ; but that such evidence as 
 
 severa y. ^^ statements of intention is not admissible (it). 
 
 8. As to the operation of the principle of resulting trusts 
 in cases of lands held as partnership assets, see Partnership 
 (infra, iDp. 539 — Sil). 
 
 (t) Bone V. PoUunl, 24 Beav. 283. 1 J. & H. 287, and Devoi/ v. D., 3 
 (u) Compare Harrison v. Barton, Sm. & G. 403.
 
 DEFINITION AND DESCRIPTION. 
 
 Section IV. — Constructive Trusts. 
 
 I. Definition. 
 
 II. *Reneival of Leases hi/ Trustees. 
 
 Keech v. Sandford. 
 
 III. Purchase of Trust Property hij Trustees. 
 
 Fox V. Mackreth. 
 
 I. Definition and Descriiotion. 
 
 When oil the grounds of justice and good, conscience, Definition, 
 without reference to the intention of the parties, equity- 
 severs the legal from the equitable interest, a constructive 
 trust is raised. 
 
 The usual circumstances from which these trusts proceed Trustees, 
 are where a trustee or any person clothed with a fiduciary -^^J fdvan- 
 character gains some personal advantage by availing him- t*g? ^''om 
 self of his situation as a trustee. As soon as such an 
 advantage is acquired through the medium of a trust, the 
 trustee, however good a legal title he may have, will be 
 decreed in equity to hold for the benefit of the cestui que 
 trust. 
 
 The principle of constructive trusts enters into so many 
 departments of equity, that it is desirable under this 
 especial heading to deal only with some of the leading 
 and most characteristic illustrations of it. In other parts 
 of the work, for instance in considering the remuneration 
 of trustees, and in the chapter on fraud, it will be necessary 
 again to refer to the principle, and further illustrations 
 thereof will be afibrded. 
 
 The trusts by which efl:ect is given to the liens of 
 vendors and purchasers, though frequently classed as con- 
 structive trusts, are of a distinct nature. From their
 
 80 CONSTRUCTIVE TRl'STS. 
 
 intimate relation to mortgages, we have preferred to deal 
 
 witli them in connexion with that branch of the subject. 
 
 Uenewal II. Of Constructive trusts, one extensive class arises from 
 
 trusrees ^ lenGwals of leases by trustees and other persons clothed 
 
 &(;• with a fiduciary character, in their own names. The 
 
 leading authority among cases of this description is 
 
 KEECH V. SANDFORD 
 
 [Sel. Ca. in C'li. 01 ; 1 W. & T. L. C. 4G] ; 
 
 also commonly known as the Mumford Market Case. 
 
 In this case a person being possessed of a lease of the profits 
 of a market devised his estate to a trustee in trust for an 
 infant. Before the expiration of the term the trustee 
 applied to the lessor for a renewal for the benefit of the 
 infant. This was refused on the ground that, it being 
 only the profits of a market, there could be no distress, 
 and must rest simply in covenant, which the infant could 
 not make. There was clear proof of the refusal to renew 
 the lease for the benefit of the infant. On this refusal 
 the trustee got a lease made to himself. A bill was 
 brought by the infant to have the lease assigned to him, 
 and for an account of the profits. The plaintiff relied on 
 the principle that wherever a lease is renewed by a trustee 
 or executor it shall be for the benefit of the cestui (juc 
 use. The defendant admitted the princijole, but denied 
 that it was applicable to this case, because of the proof of 
 an express refusal to renew to the infant. Lord Chancellor 
 King said : " I must consider this as a trust for the infant ; 
 for I very well see, if a trustee, on the refusal to renew, 
 might have a lease to himself, few trust estates would be 
 renewed to a cestui qne use. Though I do not say there is 
 fraud in this case, yet the trustee should rather have let 
 it run out than have had the lease to himself. This may 
 seem hard, that the trustee is the only person of all man- 
 kind who might not have the lease ; but it is very proper 
 that the rule should be strictly pursued, and not in the
 
 RENEWAL OF LEASES BY TRUSTEES. bi 
 
 least relaxed; for it is very obvious what would bo the 
 consequences of letting the trustees have the lease on a 
 refusal to renew to the cestui que use." 
 
 So it was decreed that the lease should be assigned to 
 the infant, and that the trustee should be indcmniticd 
 from any covenants comprised in the lease, and on account 
 of the profits made since the renewal. 
 
 The rule laid down by Lord King has been invariably 
 followed ; the ground of the decisions being the public 
 policy of preventing persons in such situations from acting 
 so as to take a benefit to themselves (x). 
 
 1. As to the persons to lultom the doctrine extends. 1'" whom 
 
 Ihis doctrine oi constructive trusts extends to the trine 
 general inclusion of all persons standing in a fiduciary •^'^t^"^^- 
 relation with respect to the proj^erty affected. 
 
 (1.) The leading case is sufficient authority for its appli- Trustees, 
 
 vi J. X executors 
 
 cation to express trustees. An executor stands in precisely and ad- 
 
 the same position. Similarly an administratrix of a "i^'stra- 
 ^ -^ _ tors. 
 
 deceased yearly tenant, who obtained a new tenancy from 
 year to year, was held to be trustee thereof for the next of 
 kin of the intestate, though there was no suspicion of 
 fraud {y). As to an executor de son tort renewing a lease 
 in his own name, see Mulvany v. Dillon (z), Grifjin v. G. (a). 
 
 (2.) Another class, which is the subject of a great Tenants 
 number and variety of decisions, is that of tenants for life, 
 or others having a limited interest in renewable leaseholds, 
 who renew the leases in their own names. In these cases 
 they will be held trustees for those entitled in remainder 
 to the old lease (5). Thus in James v. Dean (c), a testator 
 bequeathed leaseholds for years determinable upon lives to 
 his widow (who was his executrix and residuary legatee) for 
 life, with remainder over : the term expired during the 
 testator's life, but he continued to hold as tenant from year 
 to year : the widow obtained a new lease to herself, but it 
 
 (x) Griffin V. G., 1 S. & L. 354. (a) 1 S. & L., 352. 
 
 (t/) Kelly V. K. 8 \. R. Eq. 403. (b) Jioice v. Chichester, Arab. 715. 
 
 (z) 1 Ba. & Be. 409, 417. (c) 11 Ves. 383; 15 Ves. 23G. 
 
 G
 
 82 CONSTRUCTIVE TRUSTS. 
 
 was held to be subject to the trusts of the will, as the 
 residue of the term at the testator's death, however short, 
 would have been. (See also Trmnpev v. T. (d).) But if the 
 testator had been only a tenant at will or on sufferance, 
 Not to a ii^Q case would have been different. Then the tenancy 
 
 tenant at 
 
 will. would have been determined by the death of the testator, 
 
 and thus no interest would have passed by the will to the 
 persons designated to take in remainder, and therefore 
 they could not set themselves up as cestui que trusts against 
 the tenant who availed herself of her position to get 
 a renewal in her own name. But Lord Eldon (c) was 
 inclined to think that had not the tenant for life in that case 
 been residuary legatee, she would have been held a trustee 
 for the residuar}^ legatee, considering it impossible that the 
 executrix (the life tenant) could hold for herself after 
 availing herself of the position which she held for the 
 benefit of the whole estate for the purpose of procuring the 
 renewal. A renewal, then, under such circumstances, 
 would have the effect of creating an accretion to the 
 general estate (/). 
 
 Although the tenant for life under a settlement be the 
 settlor himself, if he renew in his own name he will be a 
 trustee for the parties interested under the settlement (g). 
 As to the effect of the purchase of the reversion by a 
 tenant for life, see Isaac v. Wall (It). 
 
 Tenant for Similar in principle to these cases is that in which a 
 
 lifG I'GCGIV* 
 
 ing pay- tenant for life receives a sum of money for withdrawing 
 
 ment for i^[^ opposition to a bill in Parliament, and the Act then 
 
 not oppoa- -^ ^ , , ' 
 
 ing a bill passes authorising the taking of the land in settlement. 
 
 Whether, then, the land is taken or not, and whether the 
 
 Act is proceeded upon or not, the money so received must 
 
 be held for the benefit of all parties interested (i). 
 
 In Coo2^er v. PMbhs (j), Cooper, being in possession of 
 
 certain estates and a fishery, which he had covenanted to 
 
 (d) 14 Eq. 295; 8 Ch. 870. C. 197. 
 
 (e) 11 Ves. 393. (/,) (5 Ch. D. 700. 
 (/) Lewin on Trusts, 7th ed., p. (i) Pole v. P. 2 U. & Sni. 420 ; 
 
 167 ; Turnej- v. T., 14 Ch. D. 829. and see 8 & 9 Vict, c. 18, s. 73. 
 
 {(j) Picker in f/ v. Voules, 1 Bro. C. (J) 2 L. R. H. L. 1 i'J. 
 
 in Parlia- 
 ment
 
 RENEWAL OF LEASES BY TRUSTEES. 83 
 
 settle, after previous limitations to himself and his issue oUainmga 
 
 ' ^ _ _ _ _ _ parliamen- 
 
 male, on his brother for life, with remainder to his issue tary title, 
 male, procured an Act of Parliament, which, after recit- 
 ing that the estates and fishery had descended to and were 
 vested in Cooper, and that the said Cooper was desirous ot 
 constructing canals, &c., at his own expense, in considera- 
 tion of the exclusive right of fishery being vested in him, 
 his heirs and assigns, enacted that the said powers to make 
 canals and cuts should be granted to iiim, provided that the 
 cuts should be altogether situated on the estates and pro- 
 perty of the said Cooper. In all the provisions of the 
 Act, Cooper was spoken of as the o"^^^ler of the estate. 
 Cooper having died without issue male, the House of Lords 
 held that under the Act of Parliament Cooper took the 
 fishery, bound by the trusts of the settlement, Lord West- 
 bury remarking, with characteristic irony : " I must of 
 necessity assume that Cooper had the intention of stating 
 the truth and the fact to the Legislature .... therefore 
 you cannot impute to him that he intended to conceal the 
 trusts of the settlement. Then if he stood before Parlia- 
 ment as a trustee, the powers conferred are conferred upon 
 him in his character as trustee, and Avould be subject 
 to the trusts which affected the donee of those powers" (A). 
 
 (3.) Joint tenants are subject to a similar equity. If Joint 
 one of several persons jointly interested in a lease renews 
 it in his own name, he will hold it in trust for the others 
 according to their respective shares (/). Where a tenant 
 for life, and a remainderman of a lease for lives, took a 
 renewal thereof to themselves as joint tenants, in the 
 absence of anything showing a contrary intention, equity 
 regarded their prior interests as remaining unaltered (ni). 
 If a person jointly interested with an infant renew, and 
 the renewed lease turn out to be not beneficial, the person 
 renewing must sustain the loss ; while if it prove bene- 
 
 (h) See also Yem v. Edwards, 27(3. 
 K. & J. 564 ; 1 De G. & J. 598. [m) llUl v. IL, 8 I. R. Y.^y 140. 
 
 (?) Palmer v. Younrj, 1 Vern. 
 
 g2
 
 84 
 
 CONS TRUCnVE TKU STS. 
 
 Pa,rtncr3. 
 
 Agents. 
 
 Slort- 
 t'agree. 
 
 Mort- 
 gagor. 
 
 ficial the infant can claim his share of the benefit, pro- 
 vided that he contribute his due proportion to any sums 
 which may have been paid for the renewal (n). 
 
 (4;.) So, likewise, if a partner renew a lease of the part- 
 nership premises in his own name, he will, as a general rule, 
 be held a trustee of it for the firm (c). But this rule has 
 been departed from in certain cases where the business of 
 the partnership in cpiestion has been of a specidative 
 nature, such as a mining concern. In such circumstances, 
 when a surviving partner has renewed a lease in his own 
 sole name, and carried on the business with his own capital, 
 the Court has refused to assist the representative of the 
 deceased partner unless he has come forward promptly, and 
 is ready to contribute a due proj)ortion of money for the 
 purpose of the business ; since it would be clearly imjust 
 to let the executor of the deceased partner remain passive 
 while the survivor is incurring all the risk of loss, and only 
 claim to participate after the affairs have jDroved to be 
 prosperous (ij). In order, however, to gain the benefit of 
 this exception, the surviving partner must make full dis- 
 closure as to the state of the concern, such as will enable 
 the representative to exercise a sound discretion as to the 
 course he ought to pursue (q). 
 
 Similarly, a person acting as agent, or in any similar 
 capacity for a person having an interest in a lease, cannot 
 renew for his own benefit (r). 
 
 (5.) If a mortgagee renew a lease of the mortgage pre- 
 mises, the renewal, whether before or after the expiration of 
 the lease, shall be for the benefit of the mortgagor, on condi- 
 tion of his paying the mortgagee his charges (s). Vice 
 versa, if the mortgagor obtains a new lease of the mort- 
 gaged property, the new lease will be held a graft on the 
 
 (n) Exp. Grace, 1 B. & P. 376. 
 
 (o) Fcatlterdonehaugh v. Fanvicl; 
 17 Ves. 298, 311 ; Cleyy v. Fishwick, 
 1 Mac. & G. 294. 
 
 (p) Clements v. Hall, 2 De G. & J. 
 173. 
 
 (?) Ihid., 188. 
 
 (?•) Griffin V. G., 1 S. & L. 353 ; 
 Edicards v. Leicis, 3 Atk. .538. 
 
 (s) Jiuxhicorth' s Case, Freein. 12 ; 
 RaJcestraw v. Brewer, 2 P. Wms. 
 511.
 
 EEXEWAL OF LEASES BY TRUSTEES. 85 
 
 old one, for the benefit of tlie mortgagee (t). On tlie same 
 principle, if a person entitled to a lease Avliich is subject 
 to debts, legacies, or annuities, renews either in his own 
 name, or in that of a trustee, the incumbrances will remain 
 a charge on the renewed lease (u). 
 
 (6.) The same remedies which may be had against trustees, Voiun- 
 executors, and persons with limited interests, renewing ciafminrr 
 leases in their own names, may also be had against through 
 volunteers claiming through them, and against purchasers «^c. ' 
 from them with notice, express or implied (x). 
 
 2. The extent a/acl incidents of the doctrine. 
 
 These have to some degree been inevitably indicated in 
 reciting the cases which show to whom the doctrine 
 applies. But there remain some further comments neces- 
 sary to a full exposition of the matter. 
 
 (1.) Though a person in the fiduciary positions described Constmc- 
 is termed a trustee, he is not in all respects treated like a trustee 
 trustee who is such by virtue of an express trust. The not treated 
 
 r< p T • • • -n p • • t ■ r as an ex- 
 
 btatute ol Limitations will, lor instance, run m his favour, press 
 against persons claiming the benefit of the constructive t"^^*®^- 
 trust {y). And the cestui que trust may, apart from the in his 
 statute, be bound by acquiescence and lapse of time ; ^^^o"^- 
 especially, as we ha.ve seen in respect of partnership cases, 
 where the property sought to be affected with the trust is 
 subject to extraordinary contingencies, or is capable of 
 being rendered productive only by a large and hazardous 
 outlay {£). 
 
 (2.) The remaindermen and others who seek the benefit Entitled to 
 of a constructive trust, are required to indemnify the ^° ^"^"^ ^ ' 
 trustee against any covenants he may have entered into 
 with the lessor (a) ; and the trustee will have a lien upon 
 
 (t) Smith V. Chiclmter, 2 Dr. & W. Eq. 498 ; Knox v. Gye, 5 L. R. H. 
 
 393 ; Hughes v. Howard, 25 Beav. L. 656, 675 ; Met. Banlc v. Heiron, 
 
 575. 5 Ex. D. 319. 
 
 («) Seaborne v. Pov:el, 2 Vern. (:) C'kgg v. Edmondson, 8 De G. 
 
 11. M. & G. 787 ; Erlanyerx. Nevj Sum- 
 
 {x) Bowles V. Steicart,! S. & L. Irero dr. Co., 3 App. C. 1218. 
 
 209 ; WaUey v. W., 1 Vera. 484. («) Giddinfji v. G., 3 Russ. 241. 
 
 (y) In re Bane's Estate, 5 I, R,
 
 86 CONSTRUCTIVE TRUSTS. 
 
 and hen \]^q estate for tlic costs and expenses of renewing: the lease, 
 for outlay . . ^ . . 
 
 on im- With interest (h), and for the cost of lasting improve- 
 ments' and ^^"^c^^s (^)' though Dot for alterations adopted as a matter 
 costs. of taste or personal convenience (d). 
 Per contra Qj^ i]^q contrary, charges in the nature of waste and for 
 
 IS charge- . . "^ " , . i • i 
 
 able for deterioration must be set off against anything thus found 
 rratifand '^"° (^"^ > ^^^® trustee must account for the mesne rents and 
 I'l-ofits. jDrofits (/), such account in the case of a tenant for lifo 
 
 of course commencing only from his decease (g), and must 
 
 assign the lease free from incumbrances. 
 
 Court IS /3 N ^\^Q Court is viqilant to prevent any fraudulent 
 
 vigilant to ^ / i i • p • mi 
 
 prevent evasioii of the doctrine of constructive trusts. The case 
 evasion. ^£ (JQQpfyy y pjiilljs above commented on is a good illus- 
 tration of this. Where, therefore, a lessee by collusion 
 with his landlord incurred a forfeiture of his lease, and 
 then obtained a new lease, the former trusts were held to 
 attach thereto (h). So if a person who has a right of 
 renewal sells such right, the money produced by the sale 
 will be subject to the same trusts as the leaseholds if 
 renewed would have been (i). 
 Cases of ^^ -^ Where renewable leaseholds are taken by a railway 
 
 pulsory or other company under compulsory powers, a tenant for 
 life will only be entitled to the interest arising from the 
 purchase money, although the custom to renew may not 
 have ceased until after the premises were thus taken; at 
 any rate, when the primary intention of the settlor appears 
 to have been to create a perpetual estate {k). 
 Renewal /- \ \y]^e]^ [^ jg impossible to obtain the renewal of a 
 
 impossible; ^ ^ _ ■•■ _ 
 
 accumu- lease, if there be no predominant trust for renewal over- 
 riding the disposition in favour of the subsequent tenant 
 for life, the latter will, it seems, be entitled to the sum 
 accumulated by the direction of the settlor for that pur- 
 
 {h) Heme V. CliirJiester, Anil). 71.'). B. 409. 
 
 (r) l/olt V. //., 1 Ch. Ca. 190; (,7) Gi(hlinf/s v. G., 3 Bms. 2il. 
 
 Wdlloj V. n^, 1 Vern. 487. (k) Hiitjhes v. ffoward, 25 Beav. 
 
 (d) Mill V. inil, 3 H. L. 828, 575. 
 
 869. (0 On-en v. WiUiams, Amb. 734. 
 
 (c) Ihid. (k) Be Wood's I'Jstate, 10 Eq. 572. 
 
 (/) Mvh-avy V. Dillon, 1 Ball & 
 
 lated 
 sums.
 
 RENEWAL OF LEASES BY TRUSTEES. 87 
 
 pose (/). But where it appears to liave been the paramount 
 intention of the testator that those entitled in reversion 
 expectant upon the decease of a tenant for hfe shoukl 
 succeed to the enjoyment of substantially the same estate, 
 the tenant for life, upon the renewal becoming impracti- 
 cable, will only be entitled to the income of the sum set 
 apart for renewal and of the sum produced by the sale of 
 the leaseholds (m). 
 
 And where a trustee, or person in a fiduciary position, 
 who has acquired the legal possession of and dominion 
 over an estate, subject to a covenant for perpetual renewal, 
 so deals with the property as to make the renewal impos- 
 sible, by his own act, and with a view to his own benefit, 
 he is bound to give full effect to the charges on the trust 
 estate, and to satisfy those charges out of the acquired 
 estate, so far as may be necessary (n). 
 
 (G.) Although trustees with power to renew have power to Purchase 
 purchase the reversion in leaseholds under 23 & 24 Vict. sioiTiir* 
 c. 124, the Court will not sanction such a purchase if it lieu of re- 
 will have the effect of unduly burdening any particular 
 person, as by considerably reducing the income of the 
 tenant for life (o). But where a trust for renewal of lease- 
 holds is absolute and overrules the interest of the tenant 
 for life, he is not entitled to object on the ground of the 
 reduction of his income, to any arrangement in lieu of 
 renewal which may be made when renewal ceases to be 
 joracticable, as long as the best possible terms are 
 made (p). 
 
 (I) Morres v. Hodges, 27 Beav. (n) Trumper v. T., 14 Eq. 295, 
 
 625 ; In re Mone>/'s Trusts, 2 D. & 310 ; 8 Ch. 870. 
 
 Sm. 94. (o) Haiimtrd v. Pile, 5 Ch. 214. 
 
 (m) Maddy v. Ihde, 3 Ch. D. {p) IloUier v. Btmie, IG Ec\. U3. 
 327.
 
 88 CONSTRUCTIVE TRUSTS. 
 
 rurchase III. Constructive Trusts aris'ing fvom a Purchase of 
 ''^^l^^^^ Trust ProjMTty by a Trustee. 
 
 tniruo. This class of trusts is usually illustrated by reference to 
 
 the important case of 
 
 FOX V. MACKRETH, 
 PITT V. MACKRETH, 
 
 [2 Bro. C. C. 400 ; 2 Cox, 320 ; 1 W. & T. L. C. 123] 
 in which a mortgagee who purchased the mortgaged 
 property himself by taking an undue advantage of the 
 confidence reposed in him, and sold it at a higher price, 
 was decreed to be a trustee for the mortgagor of the sum 
 produced by this sale. 
 
 This case is usually referred to as having established the 
 statement rule, ever since recognised and acted upon by Courts of 
 ()_fthepnn- gq^^j^y^ ^j^jj^^ ^ purchase by a trustee for sale from his 
 cestui que trust, although he may have given an adequate 
 price, and gained no advantage, shall be set aside at the 
 option of the cestui que trust, unless the connexion be- 
 tween them most satisfactorily appears to have been dis- 
 solved, and unless all knowledge of the value of the 
 property acquired by the trustee has been communicated 
 to his cestui que trust The principle of the rule is, how- 
 ever, more clearly expressed by Lord Eldon in ex parte 
 Lacey (q). He says : " It is founded upon this : that though 
 you may see in a particular case that the trustee has not 
 made advantage, it is utterly impossible to examine upon 
 satisfactory evidence, in ninety-nine cases out of a hundred, 
 whether he has made advantage or not. Suppose a trustee 
 buys any estate, and by the knowledge acquired in that 
 character discovers a valuable coal mine under it, and, 
 locking that up in his own breast, enters into a contract 
 with his cestui qice trust, if he chooses to deny it, how can 
 the Court try that against his denial ? The probability is 
 that a trustee who has once conceived such a purpose will 
 never disclose it, and the cestui que trust will be effectually 
 
 (q) 6 Ves. 625, 027.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 89 
 
 defrauded." The decision then, in the principal case, 
 depended not on whether the defendant purchased at an 
 under vaUie, but on the fact that he purchased it from his 
 cestui que trust while that relation continued to subsist. 
 and without a full disclosure. There are indeed many 
 passages in Lord Thurlow's judgment wliich seem to point 
 to the other as the ground of his decision, but as to these 
 he subsequentl}^ admitted himself to have been mistaken, 
 and declared the latter to be the true principle. Upon this Value _ 
 principle the value was immaterial ; for if the original material, 
 transaction was right, it was of no consequence at what 
 price Mackreth sold the estate afterwards ; if it was wrong, 
 Mackreth, not having discharged himself from the character 
 of trustee, if an advantage was gained by the most fortui- 
 tous circumstance, still it was gained for the benefit of the 
 cestui que trust, not of the trustee (r). We j^roceed to con- 
 sider the application of the principle under the varying 
 circumstances which have occurred in practice. 
 
 This inquiry conveniently resolves itself into two divi- 
 sions. First, What are the limits of the application of the 
 principle ? Or, in other words, Is bargaining between a 
 trustee and a cestui que trust ever supportable in equity, 
 and if so, when ? Secondly, What persons come so far 
 within the definition of a trustee as to be affected by the 
 principle which forbids such transactions ? Subsidiary to 
 these questions, it will be advisable to consider the nature 
 of the relief afforded by equity in such cases. 
 
 1. Wliat are the limits of the aj)plication of the Limits oi 
 
 • 7 o the prin- 
 
 principle ? ciple. 
 
 (1.) The cases already referred to are suflScient autho- Direct 
 rity for the proposition that a trustee cannot by a direct contract, 
 and private contract with his cestui que trust become 
 a purchaser of the trust estate. The rule is the same 
 as to both real and personal estate, and, as has been 
 seen, the question is not one of price (though naturally, if 
 
 (r) See Lord Eklon's judgment Ves. 381, 394. 
 above qnnted, and exp. Bennett, 10
 
 90 CONSTRUCTIVE TRUSTS. 
 
 an adequate price was given, it would not probably be 
 challenged), but of the position of the parties. Similarly, 
 a trustee can no more take a lease than he can purchase 
 from himself (ft). 
 Purchase (2.) A purchase by trustees at a public auction will not 
 
 at auction. , . • t r- t • i -j. i. 
 
 be sustained ; for if persons m such a capacity were pre.sent 
 at an auction as bidders, their mere presence would 
 operate as a discouragement to others. The knowledge 
 that certain persons who naturally have superior means 
 of information are bidding must inevitably check compe- 
 tition (t). 
 tlirou^iror C'^-) ■^*-*^' ^^ ^^ admissible for a trustee to purchase through 
 as an an agent, even at an auction (lo). On the other hand, he 
 ° ' is equally disqualified from purchasing as an agent for 
 or from CO- another person (v). A purchase from co-trustees is equally 
 
 trustees. . ■, ^ / \ 
 
 objectionable {x). 
 Retiring M ) Nqj- can a trustee be allowed to purchase the trust 
 
 from trust ..„ , •ii ^ • • 
 
 on pur- property, by retiring from the trust with that object m 
 
 pose. Yiew (J). 
 
 Purchase (5.) Similarly it has been held that a trustee cannot pur- 
 
 decrTe^ chase before the Master under a decree for sale (z) ; 
 
 Prom (6.) And that he cannot purchase from the trustee in 
 
 banf:-'^ '"^ bankruptcy of his cestui que trust, under an agreement to 
 
 ruptcy. divide the profits, more especially if the purchase money 
 
 consists of part of the trust funds (<i). 
 Pair sale (7.) Qn the contrary, where a trustee has fairly sold an 
 purchase, estate, a subsequent homo fide purchase of the estate from 
 
 the purchaser is unobj'ectionable {h). 
 Trust (3) And though a trustee cannot purchase from himself, 
 
 mined and he caii purchase from a cestui que trust who is sui juris 
 
 (s) Att.-Gen. v. E. of Clarendon, 400 ; Gregory v. G., Coop. 204. 
 
 17 Ves. 491, 500; Passingham v. [x) Whichcote \. Lawrence,^ Yen. 
 
 SJierboi-ne, 9 Beav. 424. 740. 
 
 {t) Exp. Lacey, 6 Ves. 629 ; Exp. (?/) Sprmg v. Pride, 4 De G. J. & 
 
 James, 8 Ves. 348. S. 395. 
 
 (v^ Campbell v. Walker, 5 Ves. (z) Car >/ v. C., 2 S. & L. 17 B. 
 
 678 ; 13 Ves. 601 ; Ingle v. Richards, {a) Vaughan v. iXohle, 30 Beav. 34. 
 
 28 Beav. 361. (b) Baler v. Peel; 9 W. R. 472 ; 
 
 (r) Exp. Bennett, 10 Ves. 381, ih. im ; Dover v. Buel;:>(J,m. a7.
 
 PURCHASE OF TRUST TROrERTY BY A TRUSTEE. 91 
 
 and has discharged him from the obligation which attached ftsudqw 
 uponnim as trustee {<■) ; but such a transaction is subjected jkc/s. 
 to jealous scrutiny, and must be free from all suspicion of 
 fraud, concealment, or undue advantage on the part of the 
 trustee (<?). A solicitor of a cestai que irus.t has, in general, 
 no authority to consent to a purchase by a trustee {e) ; but 
 a 23urchase has been allowed in a friendly suit by the 
 trustees of a settlement from a surviving trustee who was a 
 solicitor, and who acted in conduct of the purchase (/). 
 
 (9.) A trustee for infants, moreover, or persons under dis- Purchase 
 ability, may sometimes purchase the trust estate, by leave of Conrt. 
 of the Court. Such cestui que trusts not being sni juris 
 could not enter into any contract by which to release him 
 from the character of trustee ; but where an action has Leave 
 been commenced, and the Court has fully examined the Tnl^^i 
 circumstances of the case, and a trustee, saying so much is 
 bid, offers to give more, permission may be given to the 
 purchase (g). 
 
 (10.) The existence of the relation of trustee and cestui Property 
 que trmt does not affect any dealing between the parties nected 
 as to property entirely unconnected Avith the subject of the ^^'ith the 
 trust (jt). 
 
 (11.) A cestui que trust who wishes to set aside a sale, Acqnies- 
 must apply within a reasonable time, which depends upon ^^^"^,^- ^„^ 
 the circumstances of each particular case (/). He may lose ^'""s'- 
 his right to impugn the transaction by long acquies- 
 cence (j), such acquiescence being taken as evidence that 
 as between the trustee and cestui que trust the relation 
 had been abandoned in the transaction (Ji). And acquies- 
 
 ce) Coles V. Trecothid; 9 Ves. 234 ; Than, 32 Beav. 327. 
 
 Exp. Larfi), swp. {h) J{7iif/ht v. Marjorihanls, 2 Ma,c. 
 
 (d) See Morse v. Eoynl, 12 Ves. & G. 10. 
 
 355 ; Franks v. Bollans, 3 Ch. 717. (/) Campbell v. Waaler, sup. 
 
 (e) Doiones v. Grazchruok, 3 Mer. (/) Morse v. lioi/a/, sup. 
 
 209. (h Paries v. W/iite, 11 Ves. 226; 
 
 (/) Ilickki/ V. //., 2 Ch. D. 190. Seagram y. Knl'/lit, 3 E^[. 398 ; 2 
 
 [g) Campbell v. Walker, 5 Ves. Ch. 628. 
 678, 682 ; 13 Ves. 601 ; Farmer v.
 
 92 
 
 CONSTRUCTIVE TRUSTS. 
 
 t'oriflitinns 
 of. 
 
 Confirma- 
 tion. 
 
 Condi- 
 tions of. 
 
 Princii^le 
 applies to 
 express 
 trustee. 
 
 Not 
 nominal 
 
 trustee. 
 
 cencc may be evidenced by other circumstances than mere 
 lapse of time (0- 
 
 In order, however, to fix acquiescence on a party, it 
 sliould be unequivocally shown that he knew the fact 
 upon which the supposed acquiescence is founded, and to 
 which it refers (in). Time will in general not run against 
 a party so long as his interest is contingent or rever- 
 sionary (n), nor as long as he remains ignorant of his title 
 to relief. 
 
 (12.) A cestui que trust when sui juris may confirm an 
 invalid sale so that it cannot be set aside afterwards (o). 
 But in order to constitute a valid confirmation, a person 
 must be aware that the act he is doing will have the 
 effect of confirming an impeachable transaction (p). Nor 
 will the confirmation be valid if done in circumstances of 
 distress or difficulty, or under the force or pressure and 
 influence of the previous transaction (q). It must, of 
 course, be an act separate from the impeachable transac- 
 tion. 
 
 2. To what ijersons the 'principle applies. 
 
 (1.) The strongest case is where the would-be purchaser 
 is an express trustee. In the principal case Mackreth was 
 invested with the office directly by means of a trust deed, 
 which created the relation for the express purpose of giving 
 a power of sale ; and nothing is more firmly established 
 than that in such and such -like cases a trustee will not 
 be suffered to purchase from himself (;•). 
 
 A mere nominal trustee, however, for instance one 
 who has disclaimed without ever acting in the trust, or a 
 trustee to preserve contingent remainders, may become a 
 purchaser (s). 
 
 (?) Wriylit V. Vandeiylanl; 2 K. 
 & J. 1. 
 
 (m) Randall v. Err'myton, 10 Ves. 
 423, 428. 
 
 (n) Gowland v. Le Fana, 17 Ves. 
 20 ; Life Af.Hor. of Scotland v. Sid- 
 (Jal, 3 i)e G, F. k J. 58. 
 
 (o) Morse v. Palmer, 12 Ves. 353; 
 Roche V. O'Brien, 1 Ba. & Be. 353. 
 
 (p) Murray v. Palmer, 2 S. & L. 
 486 ; Thompsonv. Askbee, 10 Ch. 15. 
 
 (q) Crowe V. Ballard, 3 Bro. C. C. 
 117. 
 
 (?■) Killich V. Flcxney, 4 Bro. C. C. 
 161. 
 
 (.s) Staceij V. Elph, 1 My. & K. 
 195 ; Paries v. ]Yldte, 11 Ves. 209, 
 226.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 93 
 
 (2.) A mortgagee or an annuitant with a power of sale, ^^'^>^*^- 
 being in fact a trustee for sale, cannot either directly or 
 by his solicitor purchase the charged estate, except with 
 the express authority of a cestiu que trust who is sul 
 juris (t). 
 
 A mortgagee, however, does not ordinarily stand in a Turcliasc 
 fiduciary position towards the mortgagor, so as to render a ^f redumj- 
 purchase of the equity of redemption by him from the ^i^n. 
 mortgagor (u), or from a prior mortgagee selling under a 
 power of sale (x) impracticable. 
 
 Nevertheless all transactions between a mortgagor and 
 mortgagee are viewed with jealousy, and the sale of an 
 equity of redemption will be set aside where, by the 
 influence of his position the mortgagee has purchased for 
 less than others would have given, or if there are any 
 circumstances of misconduct in obtaining the purchase (?/). 
 The same principles apply to the case of the granting of 
 a lease from the mortgagor to the mortgagee (s). 
 
 (3.) Executors or administrators will not be permitted, Executors 
 either immediately or by means of a trustee, to purchase fstratoiT"' 
 for themselves any part of the assets, but will be con- 
 sidered as trustees for the persons interested in the estate, 
 and must account to the utmost extent of the advantage 
 
 o 
 
 made by them of the subject so purchased («). Nor can 
 an executor purchase a legacy from a legatee, even though 
 a co-executor (h). So if they compound debts or mort- 
 gages, or buy them in for less than is due ujoon them, 
 they may not retain any benefit out of the transaction 
 for themselves (c). Upon the same principle a receiver can- 
 not purchase {d). 
 
 (t) Doicnes v. Grazchrool; 3 Mer. (:) Ford v. Olden, sup. 
 
 200 ; In re Bhi/e's Trust, 1 Mac. & («) Hall v. Hallett, 1 Cox, 134 ; 
 
 a. 488 ; 3 H. L. 607, 630. Weddei-burn v. W., 4 My. & Cr. 41. 
 
 (u) Kniijlitw. Marjorihanl-s,2Mac. (h) In re BieVs Estate, 16 Eq. 
 
 & G. 10. 577. 
 
 (.r) Shaw v. Bunny, 33 Beav. 494, (r) E.rp. James, 8 Ve.s. 337, 346. 
 
 2 Ue G. J. & S. 463. (c^ Alvcn v. Bond, 1 ily. & K. 
 
 (>/) Ford V. Olden, 3 Eq. 461 ; 196. 
 Pries V. Coke, 6 Ch. 645, 649.
 
 94 CONSTRUCTIVE TRUSTS. 
 
 'i'lustee in (4 ) A trustee of a bankrupt cannot purchase his pro- 
 niptcy. pei'ty (e). A purchase by a trustee on being found bene- 
 ficial has, however, been confirmed by the Court (/). He 
 cannot, moreover, purchase the debts of the estate, since 
 to do so would put his duty and his interest in confiict(^). 
 The rule applies with ecpial force to a commissioner of 
 bankrupts (A). 
 Execution A creditor who has taken out execution is not pre- 
 may pur- cluded from becoming a purchaser of the property seized 
 chase. under it (/). 
 
 Directors (5.) There is a very large number of cases based on the 
 motera^of ti'^^^t relationship existing between the directors and 
 companies, shareholders of companies, which comprise a great variety 
 of transactions regarded by the Courts as unwarrantable 
 or suspicious. Thus — 
 Purchase ([\ Such directors cannot iDurchase shares from the 
 
 of shtirGS 
 
 from chair- chairman of the company, who is in fact their co- trustee, 
 man. unless authorised so to do by the deed of settlement or 
 
 constitution of the company (/r). 
 Purchase (ii.) Nor can a director acting for the company deal 
 partners of with himself or a firm in which he is a partner. If he 
 a director, ^q^^ ^q \^q j^^^gt account to the company for all the profits 
 
 of such dealing (l). 
 Qualifying ^iii.) Persons about to become directors of a proposed 
 from in- Company will not be allowed to accept money or to pur- 
 tendmg- chase shares to qualify them for office, from a person 
 
 vendor. 1 j ' r 
 
 about to become a vendor to the company, and with 
 whom it was their duty to deal as trustees for the com- 
 pany ; such money if received Avill be held to belong to 
 the company, and if it has been applied in the purchase 
 of shares, such shares would be considered unpaid for, 
 
 (c) £xp. Lacey, 6 Ves. 623. 42. 
 
 if ) Exp. Gwe, G .Jur. 11, 18; 7 (I) Uodgkinson v. The National 
 
 ib. 136. (tr. Co., 26 Beav. 47-3 ; De G. & J. 
 
 (g) Pooleij V. Qullter, 2 De G. & 422 ; Imperial d-c. Assoc, v. Coleman, 
 
 .J. 327. G Ch. 558 ; 6 L. R. H. L. 189. 
 
 (/() Exp. Bennett, 10 Ve.s. 381. (I) Flanagan v. G. W. JR. Co., 7 
 
 (i) Stratford v. Twj/nam, J a.c. 41S. Eq. 116; Albion dr. Co. y. Martin, 
 
 See also Cltamhcrs v. Waters, 3 Sim. 1 Ch. D. 580.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 95 
 
 and the directors liable on tlie winding up of tlie company 
 to be put on the list of contributories in respect of 
 them (m). Where, however, directors received not money 
 but fully paid-up shares, allotted to the vendor as con- 
 sideration for the sale, although it was held that they 
 were liable to the company for a breach of trust, they 
 Avere not placed on the list of contributories in respect of 
 the shares (?i). 
 
 (iv.) Schedule 1, Table A., of the Companies' Act, 18G2 (o) Companies 
 provides that "the office of director shall be vacated if Sched. i,"' 
 he hold any other office or place of profit under the com- '^'^^^^ ^^• 
 pany," or " if he is concerned in or participates in the 
 profits of any contract with the company " Qj), but it is 
 provided that no director shall vacate his office by reason 
 of his being a member of any company which has entered 
 into any contracts with or done any work for the company ^ 
 
 of which he is director ; he cannot, however, vote with 
 respect to any such contract or work (q). 
 
 (v.) The promoters of a company are also considered to Pio- 
 bear such a fiduciary relation to the company that profits 
 made by them out of contracts concealed from the com- 
 pany cannot be retained by them (/'). And persons who 
 create a company to purchase property from themselves, 
 are required faithfully to inform the company of facts 
 which would influence the company in their decision as 
 to the reasonableness of purchasing it. If there is any 
 concealment the contract of sale will be set aside (s) ; 
 but the company must in such cases apply with reason- 
 able promptitude (t). 
 
 (6.) An agent apjiointed to sell, including an auctioneer, Agents for 
 cannot as a rule purchase from his principal unless he 
 make it jjerfectly clear that he furnished his employer 
 
 {m) III re Canadian ttr. Co., Hai/'.-i (q) Ibid. 
 
 Case, 10 Ch. 593 ; McKay's Case, 2 (r) Bar/nail \. Carlton, Ch. L). 
 
 Ch. D. 1. 3/1. 
 
 (n) In re Western of Canada iL-e. (s) New Somhrero iL-c. Co. w 
 
 Co., 1 Ch. D. 115. Eriawjcr, 5 Ch. 1). 73. 
 
 (o) 25 & 26 Vict., c. 89. {t) Ibid. 
 
 [p) s. 57.
 
 96 CONSTRUCTIVE TEUSTS. 
 
 with all tliu knowledge whicli he himself possessed (u). 
 If there be any suspicious dealing on the part of an agent, 
 such as his purchasing in the name of a third person, the 
 transaction will not be allowed to stand, however fair it 
 may be in other respects (v). 
 
 So also an agent for sale nvIio takes an interest in a 
 jDurchase negotiated by himself, is bound to disclose to his 
 l^rincipal the precise nature of his interest, and the burden 
 of proving such full disclosure is on the agent (x). 
 
 When, however, the contract for sale has been completed 
 and the agency determined, there is nothing then to pre- 
 vent his repurchase of the property {y), provided there be 
 no suspicion of fraud ; but as long as the contract remains 
 executory, the agent having power to enforce or rescind it 
 at his pleasure, there can be no such repurchase (z). 
 Agent for If an agent employed to purchase, purchases for himself, 
 pure lase. |^^ ^^^^^ ^^ ^^^y ^ trustee for his principal (a), and he will 
 
 not be permitted, except wath the plain and exj^ress con- 
 sent of his principal, to make any jorofit by becoming a 
 seller to him (6). 
 
 ^^^^' So also if an agent employed by his principal to do 
 
 contractor. . o i J J i i 
 
 work for him, e.(j. as a sub-contractor, enters into a contract 
 at a preposterous price, with a view to dividing the profits 
 with the sub-contractor, the transaction will impress such 
 profits with a trust in favour of the defrauded principal (c), 
 and if an agent employed to contract, enters into any sur- 
 reptitious dealings with the otlier contracting party, so as 
 to cause a conflict between his duty as agent and his 
 interest, equity will regard the transaction as fraudulent, 
 and will not suffer the agent to retain any advantage thus 
 gained (cZ). 
 
 (v) LoKtJier V. L.,lZYes.95 ; Oliccr («) Lees v. NuttaV, 1 R. & My. 
 
 V. Court, 8 Price, 127, 160. 53. 
 
 (;■) Trereli/an v. Cliaricr, 9 Beav. (h) Kimher v. Barber, S Ch. 5C. 
 
 140 ; 11 01. & V. 714 ; Lewis v. IfiU- (c) Hohlcnv. Webber, 29 Beav. WT. 
 
 mm, 3 H. L. G07. [d) Panama <Lc. (Jo. v. India Jivb- 
 
 (.,•) Dunne v. EwiUsli, 18 Eq. 524. ler <Cr. Co., 10 Ch. 515. See also 
 
 (il) Parker \. Mckcnna,lO Qh.\2Q. J)e Bussche v. Alt, 8 Ch. D. 286; 
 
 ('-) Ibid. WilliamsonY. B:u bour, 9 Ch. D. 629.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 07 
 
 The case of a stock-jobber employed to purchase, selling 
 his own stock without his principal's knowledge, is within 
 the principle, and will be set aside (e). 
 
 (7.) Upon the same principle a partner employed to Partner, 
 purchase for the firm may not make a profit by purchasing 
 for himself and selling to the firm (/). There is no rule, 
 however, which prevents a surviving partner from purchas- 
 ing the share of a deceased partner from his represen- 
 tatives ((/). 
 
 (8.) The relation of solicitor and client also gives rise Solicitors, 
 to the application of the doctrine. A solicitor employed 
 to sell cannot purchase from his client without full dis- 
 closure (It); and on the other hand, if employed to purchase, 
 he is accountable to his client for any benefits which he 
 may have clandestinely derived from the sale {i). 
 
 A solicitor or other person, who has the conduct of 
 a sale under a decree, is under an absolute incapacity to 
 purchase thereat; and even though he may not actually 
 have the conduct, if he is so far interested as that it is his 
 duty to assist in procuring the best price for the property 
 offered, he ought not to be allowed to purchase for him- 
 self (k) ; but the mere fact of his being concerned in the 
 suit is not sufficient to incapacitate him (/). 
 
 A solicitor is not incapable of contracting with his client ; ^^^t in- 
 
 •111 T • 1 capable of 
 
 but II such a contnict is challenged a solicitor can only contract- 
 support it by clear proof of its fairness and of the absence "j^^ '^^^'^ 
 of any concealment (m) ; and it is always preferable for a but shouiil 
 solicitor contemplating a purchase from his client to insist generally 
 
 "■^ ° J- , not do so. 
 
 on the intervention of another legal adviser (n). 
 
 And although he may have ceased to act as the client's Even after 
 adviser, he may not use to his advantage the knowledge ^ct as^' 
 
 (e) BrooTcman v. Rothschild, 3 Sim. (i) Bank of London v. Tyrrell, 27 
 
 153 ; Gilktt V. Pcppercorne, 3 Beav. Beav. 273 ; 10 H. L. 26. 
 
 78. {k) Sidny v. Hanger, 12 Sim. 118. 
 
 (/) Bentley v. Craven, 18 Beav. (I) Guest v. Simjthe, 5 Ch. 551. 
 
 75 ; Richie v. Couper, 28 Beav. 344. {m) PisaniY. Att.-O .for Gibraltar, 
 
 (g) Chambers v. Ilowdl, 11 Beav. G. 5 P. C. 516. 
 
 (h) Watt V. Grove, 2 S. & L. 492. (n) Ibid. 
 
 H
 
 98 
 
 CONSTRUCTIVE TRUSTS, 
 
 Counsel. 
 
 Solicitor's 
 Act, 1870. 
 
 Arbi- 
 trator. 
 
 Guardian 
 and ward. 
 
 Inclosure 
 Commis- 
 sioners. 
 
 of the client's affairs acquired during the continuance of 
 the relation, and which is concealed from the client (o). 
 
 The same rules apply to counsel as to solicitors (p), and 
 it matters not that the adviser acted gratuitously (q). 
 
 Formerly an agreement by a solicitor to receive a fixed 
 sum for costs for business thereafter to be done was not 
 binding on the client, who might in spite of it require a 
 bill of costs and taxation (r). But by 33 & 34 Vict. c. 28, 
 such contracts were rendered valid, subject to the provisions 
 of the statute (.s) ; and by an Act of the last session this 
 power has been extended (t). 
 
 (9.) An arbitrator is unable to purchase the unascer- 
 tained claims of any of the parties to the reference (u). 
 He has, in fact, a similar position to a judge, who cannot 
 deliver a valid judgment in the subject-matter of which 
 he has an interest. 
 
 (10.) Transactions between a guardian and ward during 
 the existence of the relationship are considered invalid (v), 
 and even after the ward has become of age the Court 
 regards such dealings with suspicion (x). If, however, full 
 consideration has been paid, they could not be set aside (?/). 
 Where a guardian bought up incumbrances on the ward's 
 estate at an undervalue he was held trustee for the ward, and 
 was only allowed to charge him what he actually paid (z). 
 
 (11.) Acting on the same principle, the Legislature has 
 rendered commissioners under the General Inclosure Act 
 incapable of purchasing any estate in the parish in which 
 the inclosure is made until five years after the date and 
 execution of the award («). Under the Commons' Inclo- 
 sure Act a similar clause prevents valuers from purchasing 
 land until seven years after the award (6). 
 
 (o) Cane v. Alleii, 2 Dow. 289; 
 Edwards v. Me y rick, 2 Hare, 69. 
 
 ip) Carter v. Palmer, 8 CI. & F. 
 657. 
 
 (q) Hobday v. Peters, 28 Beav. 349. 
 
 (r) Re Newman, 30 Beav. 196. 
 
 (s) ss. 4, 7—10. 
 
 (<) 44 & 45 Yict. c. 44, s. 8. 
 
 (■u) Bknnerhasset v. Day, 2 Ba. & 
 
 Be. 16. 
 
 (v) Powell V. Glover, 3 P. Wms. 
 251 n. 
 
 (x) Grosvenor v. Sherratt, 28 Beav. 
 659. 
 
 (y) Hylton v. H., 2 Ves. Sr. 549. 
 
 (2) Henley v. — — , 2 Ch. Ca. 245. 
 
 (rt) 41 Geo. III. c. 109, s. 2. 
 
 {h) 8 & 9 Vict. c. 118, s. 219.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 99 
 
 (12.) Governors and trustees of a charity cannot grant a Govemora 
 lease to or in trust for one of themselves (c), nor insert in trustees of 
 a lease any stipulation for their own private advantage (d). '-'^Jarities. 
 The same rule applies to a member of a corporation taking 
 a lease of tlie corporate property (e). 
 
 It has been held, though difficult to reconcile with 
 principle, that a trustee of a charity can become a mort- 
 gagee of the charity property (/). 
 
 (13.) Where no definite relationship such as those we Any rela- 
 have considered exists between the parties, yet nevertheless, confidence 
 if there exists a confidence between them of such a 
 character as enables the person in whom such confidence 
 is reposed to exert exceptional influence over the person 
 trusting him, the Court will not allow any transaction 
 between them to stand unless there has been full explana- 
 tion and communication of every particular in the know- 
 ledge of the person v^^ho seeks to establish the contract (g). 
 In the case referred to there was great disparity of age 
 between the parties, and the younger was known to be in 
 pecuniary distress. In the absence of any such relationship 
 and of fraud, mere inadequacy of consideration will not be 
 a sufficient reason for setting aside a sale (h), but gross in- 
 adequacy of price coupled Avith want of due protection and 
 advice, precipitation in carrying out the bargain, especially 
 when the vendor is poor and illiterate, has often been con- 
 sidered sufficient evidence of fraud to enable the vendor to 
 set aside a contract (i). See Fraud, Infra, p. 155, et seq. 
 
 3. The nature of the relief afforded hy equity. Nature of 
 
 A cestui que trust (under which term are now included 
 all persons who on the above grounds are entitled to 
 set aside a sale) has usually a choice of two courses. 
 
 (c) Att.-G. V. Dixie, 13 Ves. 519, 338. But see Forbes v. Ross, 2 Cox, 
 534. 113. 
 
 (d) Att.-G. V. Mayor of Stamford, ((/) Tate v. WiUianison, 2 Ch. 55. 
 2 Suanst. 592 ; Att.-G. v. Corp. of {h) Harrison v. Guest, G De G. M. 
 Pli/mouth, 9 Beav. 67. & d. 424, 8 H. L. 481. 
 
 (e) Att.-G. V. Corp. of Cashel, 3 [i) Longmate v. Ledr/er, 2 Giff. 
 Dr. & W. 294. 157 ; Baker v. Monk, 33 Beav. 419. 
 
 (/) Att.-G. V. Hardy, 1 Sim. N.S. 
 
 H 2
 
 100 
 
 CONSTRUCTIVE TRUSTS. 
 
 Option. 
 
 Recon- 
 veyance 
 witli com- 
 pensation. 
 
 Resale. 
 
 Account of 
 profits. 
 
 Costs. 
 
 (1.) He may insist on a reconveyance of the property 
 from the trustee who purchased it (if it remains in his 
 hands unsold), or from a person who has purchased it from 
 him with notice of the breach of trust (j). Such recon- 
 veyance will be decreed on the terms of his repaying the 
 purchase money with interest at four per cent., and all sums 
 which may have been expended in repairs and improve- 
 ments of a permanent nature. On the other hand, there 
 will be allowance made for all acts tending to deteriorate 
 the value of the estate ; and the trustee must account 
 for all rents and profits received by him, and pay an 
 occupation rent for such part of the estate as he has 
 retained in his actual possession (Jc). In some cases, 
 liowever, where sales have been set aside for actual 
 fraud, allowance for money laid out in improvements has 
 been refused (l). 
 
 (2.) But if the cesfMi que trust does not wish for a 
 reconveyance, an order will be made that the expense of 
 repairs and improvements, after making allowance for 
 deteriorating acts, shall be added to the purchase money, 
 and that the estate shall be put up at the accumulated sum. 
 If any one makes an advance upon that sum the trustee 
 shall not have the estate ; if not, he will be held to his 
 purchase (tji). 
 
 (3.) Where the trustee has resold the estate to a purchaser 
 without notice, the cestui que trust can, as in the principal 
 case, make him account for his receipts with interest. 
 
 (4.) The costs of the suit where the sale has been set 
 aside must be paid by the trustee (n), unless there has 
 been great delay on the part of the cestui que trust (o) ; 
 and where a suit has failed on account of such delay the 
 trustee has been refused his costs (p). 
 
 (j) York Buildings Co. v. Mac- 
 l-enzie, 8 Bro. P. C. 42 ; Pearson v. 
 Benson, 28 Beav. 598. 
 
 (k) Hall V. Hallctt, 1 Cox, 134 ; 
 Campbc'l V. Walker, f> Ves. 678, 
 682 ; Mill V. Hill, 3 H. L. 828, 869. 
 
 {I) Kenney v. Browne, 3 Ridg. 518. 
 
 (m) Exp. Reynolds, 5 Ves. 707; 
 Tennant v. Trenchard, 4 Ch. 537, 
 546. 
 
 {n) Sanderson v. Walker, 13 Ves. 
 601. 
 
 (o) Att.-G. V. Dudley, Coop. 146. 
 
 {p) Oreyory v. (?., Coop. 201.
 
 GETTING IN OUTSTANDING TRUST PROPERTY. 101 
 
 Section V. — Duties and Liabilities of Trustees. 
 
 I. Getting in trust property, perishable property 
 and reversions. 
 
 Howe V. Lord Dartmouth. 
 II. Custody of trust property. 
 III. Investment. 
 ly. Liability of Go-trustees. 
 
 Towuley v. Sherborne. 
 Brice v. Stokes. 
 
 In considering the position of trustees, we will first 
 discuss their duties with respect to the trust property. 
 And this naturally divides itself under three heads : 1st. 
 As to the getting in of outstanding property of the trust. 
 2ndly. As to the custody of such property. 3rdly. As to 
 its proper investment. 
 
 I. Getting in Outstanding Trust Property. 
 
 It is among the most important of the duties of a trustee Getting in 
 to take such ste)3s as are necessary for the security of the ?"tstancl- 
 trust property; and the first of such steps is to get all such perty. 
 property into his hands, or under his control. In other 
 words, all outstanding property must be reduced into 
 possession. 
 
 1. (1.) Debts due to the trust must therefore, with all Debts 
 reasonable diligence, be collected. Money may not be left 
 outstanding upon personal security ; and it is not a suffi- 
 cient reason that the debt arises from a loan made by the 
 creator of the trust on a security which he considered suffi- 
 cient (q). 
 
 They are allowed the exercise of a fair discretion, and are 
 not expected to commence legal proceedings unnecessarily, 
 (rj) Powell V. Evans, 5 Ves. 839 ; Bullock v. Wkcatkj/, 1 Coll. 130.
 
 102 DUTIES AND LIABILITIKS OF TRUSTEES. 
 
 nor where such proceedings would be useless (r), but they 
 will not be justified in granting any great indulgence (s). 
 Tnistee In casB a loss to the estate is occasioned by neglect of this 
 lossby"'^ duty, a trustee or executor will be personally answerable, 
 neglect. (2.) But although a loss may have taken place by non- 
 
 He may conversion of the assets by an executor, he will not be 
 reasonable liable if the delay was caused by the exercise of a reason- 
 discretion, able discretion ; and if there be more than one executor, 
 each one is entitled to exercise such discretion without 
 risk, notwithstanding the opposition or difference of opinion 
 of another (t). 
 Releasing (3.) In the exercisc of a sound discretion trustees might 
 poumUng Q'VQ'^^ before 23 & 24 Vict. c. 14.5, release or compound a 
 
 debts. debt (u), and by that statute this power was confirmed and 
 2,3 & 24 
 
 Vict. c. extended. Now by 44 & 45 Vict. c. 41, s. 37, executors and 
 l4o, s. 30. trustees are authorised to accept any composition, or any 
 Vict. c. 41, 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 or to the trust, and for any of those purposes to 
 enter into, give, execute, and do such agreements, instru- 
 ments of composition or arrangement, releases and other 
 things as seem expedient, without being responsible for any 
 loss occasioned by anything so done in good faith. 
 Money 2. Money employed b}' a testator in trade may not be 
 
 in"tracle. Suffered to remain so invested by his executors, without 
 express authority (v). Reasonable time is of course allowed 
 for the purpose of winding up the concern ; and the Court 
 has jurisdiction in an administration suit to direct that a 
 trade or business in which infants are interested shall be 
 continued, and will so direct if it be for their benefit (x). 
 
 ()■) Chirk V. Holland, 19 Beav. (m) Blue v. MarshaH, 3 P. Wms. 
 
 271. 381; RatcUffe v. Winch, 17 Beav. 
 
 [s] Lowion V. C'ojidand, 2 Bro. C. 216. 
 C. 156; Caffrcy y. IJarbi/, a Ye>i. 488. (r) Kirkimm v. Booth, 11 Beav. 
 
 (I) Baxton v. B., 1 My. & Cr. 80; 273. 
 Marsden v. Kent, 5 Ch. D. 598. {x) Perry v. P., 3 I. R. Eij. 452.
 
 GETTING IN OUTSTANDING TRUST PEOPERTY. 103 
 
 3. Very frequently we find in a will personal property Perishable 
 of a perishable nature bequeathed to a person for life with with life 
 remainder over. In such a case the question arises whether "^terests 
 the intention was that the first legatee should enjoy the 
 property specifically, with the possible consequence that by 
 the consumption or falling in of the property the remainder- 
 man will receive no benefit at all; or whether, for the 
 equal treatment of both, the property should be sold, and 
 the proceeds laid out on permanent investments. Con- aJi^i rever- 
 
 1 . . . . ., , sionary 
 
 versely, reversionary property is sometimes similarly property, 
 bequeathed, and the question is whether it is to remain in 
 its existing state, with the possible consequence of its not 
 falling into possession during the lifetime of the first 
 tenant, so that though named as a beneficiary he will 
 receive nothing from it, or whether again for the equal 
 treatment of both it should be sold and invested so as to 
 produce an immediate income. 
 
 On these questions the case of General 
 
 '■ rule 
 
 requires 
 HOWE V. LORD DARTMOUTH conver- 
 
 [7 Ves. 137 ; 2 W. & T. L. C. 296] ^^°"- 
 
 is a leading authority. From it we gather that whenever 
 there is a general bequest of property of a wasting nature, 
 such as long annuities or leaseholds, to persons in succes- 
 sion, the general rule is that it should be forthwith con- 
 verted, and laid out in permanent securities; and again, that 
 reversionary property, or property the enjoyment of which 
 is not to commence until a future time, or until the happen- 
 ing of a contingency, ought to be similarly converted. 
 
 The principle is thus expressed in Hinves v. H. (z) : 
 " The result of the rule laid down by Lord Eldon in Hoive v. 
 Lo7xl Dartmouth (a), and by Lord Cottenham in Pickering 
 V. P. (h), is that where personal estate is given in terms 
 amounting to a general residuary bequest to be enjoyed by 
 persons in succession, the interpretation which the Court 
 
 (2) 3 Ha. 609, 611. (6) i My. & Cr. 289. 
 
 (a) Supra.
 
 104 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Subject to 
 testator's 
 inteiitii)n 
 if ascer- 
 tainable. 
 
 What 
 amounts to 
 indication 
 of contrary 
 intention. 
 
 Absence of 
 direction 
 to convert 
 does not. 
 
 Court 
 will not 
 interfere 
 with dis- 
 cretion if 
 fjiven. 
 
 puts upon the bequest is that the persons indicated arc to 
 enjoy the same thing in successicn ; and in order to effec- 
 tuate that intention, the Court as a general rule converts 
 into permanent investments as much of the personalty as 
 is of a wasting or perishable nature at the death of the 
 testator, and also reversionary interests." 
 
 This general principle is simple enough; but like all 
 general principles it is subject to the paramount rule that 
 in the construction of wills the testator's intention is, if 
 ascertainable, to prevail. He may of course direct, if he 
 chooses, that his property, however wasting, shall be specifi- 
 cally enjoyed in the first place by a life tenant, and that 
 the remainder- man shall take only what chance may leave 
 for him ; and difficulties often arise in ascertaining whether 
 such is, or is not, the testator's intention. 
 
 This question is one which evidently depends upon the 
 language of each particular instrument, so that no general 
 formula can be laid down for its decision. We can only 
 illustrate from actual cases what has and what has not been 
 considered sufficient to entitle the legatee to enjoyment of 
 perishable property in specie. 
 
 The mere absence of a direction to convert the property 
 has never been considered to mean that it should be enjoyed 
 in specie (c). On the other hand, if there is a specific gift 
 of such property, then the mere fact that trustees have a 
 discretionary power to sell it is not a reason for converting 
 it. The discretion is deemed to be given only for the 
 security of the property, not with a view to vary or affect 
 the relative rights of the legatees (d). But where there 
 was a direction in a will that trustees should in their sole 
 discretion sell so much and such parts of the residuary estate 
 as they might think necessary, the Court declined to 
 interfere with their discretion so as to prevent a tenant for 
 life enjoying leaseholds in specie (e). An express direction 
 
 (c) Johnson v. /., 2 Coll. 441 
 Morgan v. M., 14 Beav. 72, 83. 
 
 [d) Lord V. Godfrey, 4 Madd. 455. 
 (c) Re SeiveWs Estate, 11 Eq. 80.
 
 I 
 
 GETTING IN OUTSTANDING TRUST PROPERTY. 105 
 
 'for sale at a given period indicates an intention that there 
 should be no previous sale or conversion (/). 
 
 There has been much discussion as to whether the use Use of 
 of such particular words as " rents " and " dividends," in ^rynL " 
 describing the proceeds of property bequeathed, amounts to ^^^ " divi- 
 a sufficient indication of intention against conversion. 
 The result of the cases seems to be that where there is in General 
 a residuary gift a trust to pay " rents " to persons in succes- 
 sion, and the residue comprises no other property except 
 leaseholds to which it is applicable, then the leaseholds 
 are to be enjoyed in specie (g). But if the residue comprised 
 freeholds as well as leaseholds, the word " rents " would be 
 sufficiently accounted for without supposing it to apply 
 to the leaseholds, and its presence would not sufficiently 
 indicate an intention to avoid the usual rule as to their 
 conversion (Ji). 
 
 The word " dividends " has been considered sufficient to 
 entitle a legatee for life to the enjoyment of long annuities 
 in specie (i). But it would not suffice to qualify an 
 express direction to convert preceding it (k). 
 
 A direction that power of attorney should be given to Power of 
 cestui que trusts entitled to receive in succession the directed to 
 income of property, may show an intention that they should '^f *^** ^^ 
 enjoy it ^n specie (l). 
 
 A direction to divide property after the death of the Direction 
 tenant for life has been held to indicate a similar inten- after death 
 tion (m). So an exception from a general direction to °^ tenant 
 
 ^ ' ■*• . . '^ . . for life. 
 
 convert may show an intention that long annuities are 
 to be enjoyed in specie (n). 
 
 Where a tenant for life is entitled to the enjoyment of Effect of 
 
 (/) Alcoch V. Sloper, 2 My. & K. (k) Bate v. Hooper, 5 De G. M. & 
 
 699. G. 338. 
 
 ([/) Goodenough v. Trcniaiiwndo, 2 (I) Neville v. Forksciw, 16 Sim. 
 
 Beav. 512; Vachell v. Roberts, 32 333. 
 
 Beav. 140 ; Cafe v. Bent, 5 Ha. 24, {m) Collins v. C, 2 My. & K. 
 
 36. 703. 
 
 (A) Pickup V. Atkinson, 4 Ha. (n) Wilday v. Sandys, 7 E(i. 
 
 624. 455. 
 
 {i) Alcock V. Sloper, sup.
 
 / 
 
 106 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 leaseholds leaseholds in specie, and they are taken by a company 
 in specie Under compulsory powers, and the purchase money paid 
 purchased j^^^ Court, he IS entitled to the same benefit thereout as 
 compul- he would have had from the lease (o) ; the mere interest 
 powers. ^^ t^^^ money would not be an adequate compensation (p). 
 And where the tenant for life in such case outlives the 
 term for which he was entitled as tenant for life, he will 
 become absolutely entitled to the whole fund (q). 
 Rule Where property, the subject-matter of a bequest given 
 
 version to persons in succession, is found by the trustees of a 
 su°t in ^ testator to be so laid out as to be secure, and to produce a 
 I0S.S. large annual income, but is not capable of immediate con- 
 
 version without loss and damage to the estate, there the 
 rule is not to convert the property, but to set a value upon 
 it, and to give the tenant four per cent, on such value ; 
 j the residue of the income must then be invested, and the 
 income of the investment paid to the tenant for life, the 
 corpusheing secured to the remainder-man (r). The same 
 case decides also that when, according to the construction 
 of a will, the executors have full power to retain certain 
 securities as long as they think advantageous, or to invest 
 the monies of the estate upon similar securities, while any 
 such securities remain a part of the testator's estate, the 
 tenant for life is entitled to the specific income arising 
 therefrom ; and also that when trustees do not convert 
 unauthorised securities, the tenant for life will onl}^ be 
 entitled to an income from the testator's death equal to 
 the dividends of the consols which would have been pro- 
 duced by a sale and investment in consols at a year from 
 the testator's death, and not, as in Robinson v. R. (s), 
 to interest at four per cent, on their value. 
 Power of Where trustees were made liable to a remainder-man 
 when for having improperly allowed perishable property to 
 
 (0) 8 & 9 Vict. c. 18, s. 74. & G. 20. 
 
 (p) J^ffi'eys V. Coniwr, 28 Beav. {r) Brown v. Gellatly, 2 Ch. 751. 
 
 328. (s) 1 De G. M. & G. 247. 
 
 (q) In re Beaufoy's Estate, 1 Sm.
 
 GETTING IN OUTSTANDING TRUST PROPERTY. 107 
 
 remain in specie, and to be enjoyed by the tenant for life, made 
 they were allowed by means of an inquiry in the same recover 
 suit to recover back against the estate of the tenant for ^^^^ ^^"''^ 
 
 ,.-,, ., i'/\ All tenant for 
 
 hfe the amount overpaid to hini (r). And where trustees, life, 
 having a discretion as to the time of conversion, allow 
 reversionary property to remain unsold until it falls into 
 possession, the tenant for life will be entitled to have paid 
 to him in respect of interest out of the property, the 
 amount which he would have received had the trustees 
 sold the property at the end of one year after the testator's 
 death {u). 
 
 4. Money invested on good real securities is not required Money in- 
 to be called in, unless, of course, it is necessary for the o-ood 
 
 payment of debts (x) ; and in an administration action the security to 
 . . remain so. 
 
 Court would not permit a real security to be called in 
 without inquiry as to its expediency {y). It has been held 
 that a trustee is not bound to call in a fund invested upon 
 a second mortgage {z) ; but seeing that such a security. Second 
 however apparently ample, is continually liable to damage 
 from the operation of the doctrines of tacking and con- 
 solidation (as to which see infra, pp. 245 — 55), such invest- 
 ments are manifestly undesirable. If, moreover, a trustee 
 has reason to suppose that any real security is not good, 
 it is his duty to call it in at once («). 
 
 5. It is the duty of trustees also to place the trust Property 
 property beyond the power of any third parties. Thus if of^hird'^ 
 the trust fund is an equitable interest of which the legal parties, 
 estate cannot be at present transferred, the trustees must 
 
 at once give notice of their interest to the person in whom 
 the legal estate is vested, in order to avoid a subsequent 
 purchaser gaining priority by giving the first notice (6). 
 Similarly a trustee of a settlement which requires registra- 
 
 (t) Hood V. Clapham, 19 Beav. 7 Ves. 137,150. 
 90. (z) Robinson v. R., 1 De G. M. & 
 
 («) Wilkinson -v. Duncan, 2mea,v. G. 252. 
 
 469 ; Wright v. Lambert, 6 Ch. D. («) Ames v. Parkinson, 7 Beav. 
 
 649. 384. 
 
 (x) Orr V. Newton, 2 Oox, 276. (b) Jacob v. Lucas, 1 Beav. 436. 
 
 (y) Howe v. Earl of Dartmouth,
 
 108 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Con- 
 sequences 
 of neglect 
 to realise 
 generally. 
 
 Under 
 order of 
 Court. 
 
 Where 
 they have 
 special 
 discretion- 
 ary i>ower, 
 
 tion is responsible for any loss arising from a neglect to 
 procure registration (c), 
 
 6. Where executors have neglected to realise outstanding 
 assets, the pri'nifl facie rule is that they are liable for any 
 loss which arises after the expiration of a year from the 
 testator's death, and executors who have not completed the 
 conversion by that time must be prepared to justify their 
 delay {d). The rule, however, is not an absolute one, and 
 if in the circumstances of any case a longer delay seemed 
 reasonable, no liability is incuri'ed thereby (e). 
 
 When trustees are ordered by the Court to realise 
 securities, and they neglect to do so, they will be liable for 
 any loss sustained by their neglect ; such direction over- 
 rides their discretion (/). 
 
 On the other hand, if by the instrument creating the 
 trust trustees are given a special discretion as to whether 
 funds shall be called in or not, this will override the usual 
 operation of the rule ; and then, in order to charge them 
 with loss, it will be necessary to establish a clear case of 
 misconduct against them {g). 
 
 General 
 principle. 
 
 Not liable 
 for acci- 
 dent. 
 
 II. As to the custody of Trust Property. 
 
 1. The general principle is that trustees or executors are 
 bound to take the same care of trust property as they 
 would of their own. If a loss thereof occurs by unavoid- 
 able accident, if, for instance, without any fault of theirs 
 it is stolen from them or from any one to whom it was 
 properly entrusted, they are not liable (Ji). 
 
 2. Similarly if in the ordinary discharge of their duty 
 they deposit assets in a bank, and the bank fails, they are 
 
 (c) Macnamara v. Carey, 1 I. R. 
 Eq. 9. See also Kingdon v. Castle- 
 inan, W. N. 1877, p. 15. 
 
 (d) Graijhurn v. Clarkson, 3 Ch. 
 606; Sculthorpe v. Tipper, 13 Eq. 
 232. 
 
 (e) lIiKjkes V. Enipson, 22 Beav. 
 
 181. 
 
 (/) Davenpwt v.Staford, 14 Beav. 
 319, 338. 
 
 (u) Paddon v. Ridiardson, 7 De 
 G. M. & G. 563, 582. 
 
 (/() Jones V. Letvis, 2 Ves. sr. 240 ; 
 Job V. /., 6 Ch. D. 562.
 
 AS TO THE CUSTODY OF TRUST PROPERTY. 109 
 
 not liable (i). In such cases, however, it is most material ^^ ordi- 
 to inquire whether there was good reason for allowinof the duct of"" 
 money so to remain. The cases quoted show that it is business. 
 considered a sufficient reason if it is necessary for the ordi- 
 nary purposes of the trust that a certain sum should be 
 kept in hand, as for the payment of debts, or current ex- 
 penses or legacies ; or if the money is so deposited pending- 
 negotiations for its more secure investment. Such monies 
 must remain somewhere, and in the usual course of busi- 
 ness one would utilise a bank for the purpose. It is also 
 similarly reasonable to allow a deposit on a sale to remain 
 in the hands of an auctioneer (k). 
 
 If, however, monies be left unnecessarily in the hands Liable for 
 of third parties, as in the hands of a banker or solicitor, necessarily 
 more than a year after a testator's death, and after the incurred, 
 debts and legacies are paid, and a loss occurs, the trustees 
 or executors are liable (I). 
 
 If money be handed to a solicitor to invest and he mis- 
 applies it, the trustees will be liable (m) ; or if, after having 
 sold property, they place the conveyance executed by 
 them in a solicitor's hands and he receives and misapplies 
 the money (n). 
 
 3. A trustee who, without entirely parting with control Associat- 
 over the trust fund, associates another person with him in others in 
 its management, and so loses the exclusive power over it, control of 
 v/ill be liable for any loss which results from such a step (o). 
 
 An illustration of this occurs where a sole trustee in- 
 vests a fund in the joint names of himself and another, 
 and so deprives himself of an unfettered discretion as to its 
 removal (p). 
 
 4. A trust fund should not be left under the entire con- or leaving 
 trol of a co-trustee. Thus trust money should, where control of 
 
 co-trustee. 
 
 (i) Johnson v. Newton,ll Ha. 160; (m) Bostock v. Flayer, 1 Eq. 26. 
 
 Fcmoicke v. Clarice, 31 L. J. N. S. (n) Ghost v. Waller, 9 Beav. 497. 
 
 Ch. 728. (o) Sahmy v. S., 2 TX. k My. 
 
 {k) Edmonds v. Peake, 7 Beav. 215. 
 
 239. (^)) White v. Baurjh, 3 CI. & F. 
 
 (0 Darke v. Martyn, 1 Beav. 525 ; 4-4. 
 Castle V. Warland, 32 Beav. 660.
 
 110 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 there is more than one trustee, be invested or deposited in 
 the joint names of all, and payable only to their joint 
 order or cheque (q). 
 
 In the case of trust funds which consisted of stocks or 
 securities payable to bearer, and of which the interest was 
 payable upon coupons, it was hekl that a trustee might 
 without breach of trust deposit such securities in a box at a 
 banker's, on account of all the trustees, one being allowed 
 to keep the key ; and that on the latter misappropriating 
 the fund, the former was not liable (r). 
 Trust pro- 5 j^ jg ^j^g duty of a trustee to keep trust property 
 
 perty must . 
 
 be kept distinct from his own It he mixes them together tlic 
 
 distinct, onus will lie upon him of distinguishing one from the 
 other, and if he fail to do so the whole will be held to 
 belong to the trust (s). 
 
 in. As to Investment. 
 
 Not to in- 1. As we have seen that an executor or trustee may not 
 vest on f^^iffer the trust fund to remain outstanding on personal 
 
 personal _ . 
 
 security, security, though the credit may have been given by the 
 creator of the trust, so it is clear that he is not justified in 
 lending trust-money on personal security, even to a person 
 to whom the creator of the trust had been accustomed so 
 to lend money if). Neither a joint personal security (it) nor 
 a loan on a bond with sureties (x) is a proper investment. 
 Save with In Order to warrant investment on personal security the 
 authority express authority of the creator of the trust is necessary {y) ; 
 mere general expressions giving to trustees a discretion are 
 not sufficient {z). 
 
 (q) Clou'jh V. Bond, 3 My. & Cr. Darke v. Martyn, 1 Beav. 526. 
 
 490 ; Trutch v. Lam2:>rdl, 20 Beav. [u) Holmes v. Bring, 2 Cox, 1. 
 
 116. [x) Watts V. Girdlestone, 6 Beav. 
 
 (7-) Mendes v. Guedulla, 2 J. & H. 188. 
 
 259 ('/) Forbes v. Hos.i, 2 Bro. C. C. 
 
 (.«) Fcllo^cs V. Mitchell, 1 P. Wnis. 430 ; Child v. C, 20 Beav. 50. 
 
 83 ; Mason V. Morlci/, 34 Beav. 475. (r) Pocock v. Redditii/ton, 5 Ves. 
 
 See infra, p. 126. 794 ; Mills v. Osborne, 7 Sim. 30. 
 
 {t) Terry v. T., Free. Ch. 273 ;
 
 AS TO INVESTMENT. 1 1 1 
 
 Even if trustees are authorised to lend upon personal Not even 
 security they may not lend to one of themselves (a), or to one of 
 a relation for the purpose of accommodating him (b). And <^liem- 
 any terms specified in the authority so to lend must be Authority 
 strictly complied with ; for instance, if the consent of any *'^ ]^^ 
 person is required, or the security of a bond is directed (c). complied 
 The term " personal security " has a wider meaning than "" 
 the security of personal property. It has been held to 
 include a loan upon mere personal credit (d). 
 
 2. Permission to invest in real securities does not " Real 
 authorise the purchase of railway mortgages or debenture tj^g""' 
 stock (e). Nor does such permission include the security What ? 
 of a judgment upon lands (/), or upon an estate for life((/). 
 Copyholds would be available (h), and now doubtless land 
 held for a long term of years, if free from onerous covenants 
 and at a pepper-corn rent (i), but not short leaseholds (h). 
 
 Where trustees or executors are authorised to advance Loan on 
 money upon mortgage, they should only advance two-thirds ^oukT"^ 
 of the value of property even of a permanent value, as free- o^^y be to 
 hold land. A still less proportion should be advanced upon two-thirds, 
 fluctuating property, such as houses and buildings, especially 
 if used in trade (J). If they have had the property duly 
 surveyed and valued by a competent person, and then bond 
 fide and to a reasonable extent advance money thereon, 
 they will not be liable, although eventually less may be 
 realised than the sum advanced (m). Evidence of value 
 must, however, be procured from an impartial person (n). 
 
 For the reasons elsewhere given (o) money should not Second 
 
 mortgages. 
 
 (a) Francis V. F., 51)6 G.M. &G. (i) Toioncnd v. T., 1 Giff. 211; 
 
 108. Jones v. Chennell, 8 Ch. D. 493, 507 ; 
 
 (6) Langstonw. OUivant, G.Cooix 33. In re Boyd's Settled Est. ,14 Ch. ] ). 626. 
 
 (c) Cocker v.Quaijk, IRuss.&My. Now, see 44 & 45 Vict. c. 41, s. 65. 
 535. (k) Ibid., Fuller v. Knight, 6 
 
 (d) Pickard v. Anderson, 13 Eq. Beav. 209. 
 
 608. (0 Stickney v. Sewell, 1 My . & Cr. 
 
 (e) Mortimore v. M., 4 De G. & J. 8; Budge v. Gummow, 7 Ch. 719. 
 472. (m) Joiu's v. Lewis, 3 De G. & Sni. 
 
 (/) Johnston V. Lloyd, T. J. Eii. 471. 
 Rep. 252. (/() Norris v. Wright, ] 4 Beav. 
 
 (g) Lander v. Weston,d Drew, 389. 291, 301. 
 (h) Wyatt v.Sharratt,3 Bes,v. 498. (o) P. 107 and 245—256.
 
 112 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 be lent on a second mortojago, unless, at least, the legal 
 
 Mortgage estate can be promptly secured (^j). Nor should money 1)6 
 
 trustee. lent on mortgage to a co-trustee (q). 
 
 Loss by If in consequence of the ignorance or negligence of a 
 
 negli-*''^ solicitor employed by trustees to prepare a mortgage a loss 
 
 gence. occurs, the trustees must personally make it good (r). 
 
 Security of 3. A power to iuvest upon the security of the funds of 
 
 incorpo- ^i^J Company incorporated by Act of Parliament will not 
 
 rated com- warrant the purchase of preference railway shares (s). A 
 jjanies. '■ . ^ . . 
 
 power, however, to mvestupon the stock, shares or securities 
 
 of any incorporated company paying a dividend, has been 
 
 held to authorise an investment in railway stock bearing a 
 
 fixed rate of interest (t). 
 
 Statutory 4. Previous to certain statutes now to be referred to, a 
 
 invest- trustoo's general power of investment was exceedingly 
 
 ment. circumscribod. In fact, the tenor of some cases seems 
 
 such as almost to have confined him to government or 
 
 bank annuities {u). But it is not now necessary to consider 
 
 restrictions whicli have long been obsolete. 
 
 22&23 (1.) By 22 & 23 Vict. c. 35, s. 32 (Lord St. Leonards' 
 
 g 32'/' ' Act), it is enacted that "When any trustee, executor, or 
 
 administrator shall not, by some instrument creating his 
 
 trust, be expressly forbidden 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 funds on such securities 
 
 or stock ; and he shall not be liable on that account as for 
 
 a breach of trust, provided that such investment shall in 
 
 other respects be reasonable and proper." It having been 
 
 held that this section did not apjDly to trustees appointed 
 
 by instruments executed before the passing of the Act, it 
 
 has been made retrospective by 23 & 24 Vict. c. 38, s. 12. 
 
 { p) DrosUr v. Brereton, 15 Beav. (r) IIop;iood v. Parlin, 11 Eq. 71 ; 
 
 221. Sutton V. Wiklers, 12 Eq. 373. 
 
 (q) Stichiey v. Seivell, 1 My. &Cr. (s) Harris v. //., 29 Beav. 107. 
 
 8; Macleoil v. Anneshy, 10 Beav. (<) CojistercZiwe v. C^., 31 Beav. 330. 
 
 600. [u] Hansom v. Allm, 2 Dick. 498
 
 AS TO INVESTMENT. ' 11 3 
 
 (2.) Agciin, by a general order, made in pursuance of 23 G. O. 
 & 24 Vict. c. 38, s. 10, on February 1st, 1861, " Cash fg^i.^'*' 
 under the control of the Court may be invested in Bank 
 Stock, East India Stock, Exchequer Bills and 2| per cent, 
 annuities, and upon mortgage of freehold and copyhold 
 estates respectively in England and Wales, as well as in 
 Consolidated, Eeduced, and New 3 per cent, annuities." 
 And since the making of this general order, trustees, 
 executors, or administrators, having power to invest their 
 trust funds upon Government securities, or upon Parlia- 
 mentary stocks, funds, or securities, or any of them, may 
 invest such trust funds or 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 invested (x). 
 
 (3.) By 23 & 24 Vict. c. 145, s. 25 (Lord Cranworth's 23 & 24 
 Act), it was enacted that trustees having trust money in ^^^ 'g^s. 
 their hands Avhich it is their duty to invest at interest, 
 should be at liberty, at their discretion, to invest the same 
 in any of the parliamentary stocks or public funds, or 
 in Government securities, and should also be at liberty, 
 at their discretion, to call in any trust funds invested 
 in any other securities than as aforesaid, and to in- 
 vest the same in any such securities as aforesaid (except 
 in the 3 per cent. Consolidated Bank annuities) ; and no 
 such change of investment as aforesaid should be made 
 where there was a person under no disability entitled in 
 possession to receive the income of the trust fund for his 
 life, or for a term of years determinable with his life, or 
 for any greater estate, without the consent in writing of 
 such person. This section has now been repealed by 
 44 & 45 Vict. c. 41. 
 
 (4.) Doubts having arisen as to the legal effect and sig- 30 & 31 
 nification of the words " East India Stock " in 22 & 23 J^f\\ 
 Vict. c. 35, s. 32, it was by 30 & 31 Vict. c. 132, s. 1, 
 enacted that the said words should include and express as 
 
 (re) 23 & 24 Vict. e. 38, s. 11. 
 
 1
 
 114 DUTIES AND LIABILITIES OF TRUSTEES, 
 
 well the East India Stock which existed jDreviously to the 
 13th of August, 1859 (the date of the passing of the 
 former Act), as East India Stock charged on the revenues 
 of India, and created under and by virtue of any Act or 
 Acts of Parliament passed on or after the 13th of August, 
 1859; and that it should be lawful for every trustee, 
 executor, or administrator, to invest any trust fund in his 
 possession or under his control in the stock created by the 
 last-mentioned Act or Acts, to the same extent, and for 
 the same purposes and objects, as he can now invest such 
 trust fund in the East India Stock which existed previously 
 
 e. 2. to the 13th of August, 1859. By s. 2 of the same Act it 
 
 is enacted that " it shall be lawful for every trustee, execu- 
 tor, or administrator, to invest any trust fund in his posses- 
 sion or under his control in any securities the interest of 
 which is or shall be guaranteed by Parliament, to the same 
 extent and in the same manner as he may invest such 
 trust funds in such securities as aforesaid." 
 
 27 & 28 ^5) By the Improvement of Land Act, 1864 (x), trustees 
 
 114, s. (io. having a power to lend on real securities are enabled 
 (unless the contrary be provided), at their discretion, to 
 invest their trust funds on charges under the Act or on 
 mortgages thereof. This, however, is not retrospective. 
 
 34 Vicn (G.) By the Debenture Stock Act, 1871 (y), it is enacted 
 
 that " where a power has before the passing of this Act 
 been or shall at any time hereafter be given to trustees 
 (including executors, administrators, and any other persons 
 holding funds in a fiduciary capacity) to invest trust funds 
 in the mortgages or bonds of a railway company, or of any 
 other description of company, such power shall, unless the 
 contrary is expressed in the instrument creating the power, 
 be deemed to include a power to invest such funds in the 
 debenture stock of a railway company, or such other com- 
 pany as aforesaid, and an investment of trust funds in 
 debenture stock may be made accordingly." 
 
 Effect of These statutes have extended the number of invest- 
 
 {x) 27 & 28 Vict. c. 114, s. GO. (y) 34 Vict. c. 27.
 
 AS TO INVESTMENT, 115 
 
 meuts wliicli may be utilised by trustees, iu their discretion, the 
 but they do not at all affect the principles by which that "^ ^ " '^^' 
 discretion must be guided, nor do they at all diminish the 
 discretion or responsibility of trustees (z). Their invest- 
 ments must be such as are equally just to all objects of the 
 trust. They may not show favour to a tenant for life by Invest- 
 in vesting upon securities which command a higher rate of j^^^g^ ^g 
 interest, in consequence of their being determinable ; nor J"^* to all 
 
 .„ , „ . , , „ . , . the cestui, 
 
 Will the Court, m the absence ot special circumstances, que trusts 
 authorise a transfer from Consols or New 3 per cents., 
 into another investment producing a larger income, if it 
 may be injurious to those in remainder. The Court will, 
 however, be intiuenced by facts showing it to be for the 
 interest of children that the income of their parents should 
 be increased (a), 
 
 5, If trustees are expressly bound by the terms of their Remedies 
 trust to invest money in public funds, and instead of doing so trustees 
 they retain it in their hands, the cestui que trust may elect 
 to charge them either with the amount of money, or with the 
 amount of stock which they might have purchased there- 
 with [h). An executor so retaining money will, however 
 only be charged with simple interest at 4 per cent., unless 
 there are circumstances showing that he has jDrofited by 
 his misconduct (c). If there is an express trust for ac- 
 cumulation, however, a trustee retaining trust funds in his 
 hands wdll be charged 4 per cent, with annual rests ((?). If 
 trustees are directed to invest trust money on Government 
 or real securities, and they do neither, the cestui cjite trusts 
 will not be allowed the option of charging them with the 
 monies which would have been produced by investment 
 iu the funds : they are only entitled to have the trust fund 
 replaced with 4 per cent, interest (e). 
 
 (2) Consterdine v. C, 31 Beav. 330, (<■) Att.-Gen. v. Alford, 4 De G. M. 
 
 833. & G. 843, 
 
 (a) Coclburn v. Peel, 3 De G. F. (d) Knott v, Cottee, 16 Beav. 77, 80. 
 
 & J. 170, 174. (f) RoUnson v. R.. 1 De G. M. & 
 
 (6) Shepherd v. Moids, 4 Ha. 500, G. 247 ; cf. Shepherd v. 3fouIs, 
 
 504. sup. ; Marsh v. Hunter, 6 INIad. 295. 
 
 I 2
 
 116 
 
 DUTIES AXD LIABILITIKS UF TRUSTEES. 
 
 Trustee 
 may not 
 set otF 
 profits 
 ugaiiist 
 1 osacs. 
 
 TlcmuJy 
 against 
 third 
 parties. 
 
 If there are several distinct unauthorised invest- 
 ments by trustees, in sonic of which a loss is incurred, for 
 which the trustees are chargeable, and ou others a gain, 
 they cannot set off the gain against the loss. The 
 cestui que trud may retain the gain that has been made 
 and still claim to have the loss entirely made good (/). 
 
 Where trustees have adv^anced trust moneys in an un- 
 authorised manner, proceedings may be taken in Chancery 
 to recover the moneys so advanced by a breach of trust (r/). 
 If, however, a trust fund fraudulently or improperly alien- 
 ated gets into the hand of a third person without notice, 
 it cannot be recovered from him, his equity being equal, 
 and being strengthened by his legal possession (/<). The 
 only remedy in such cases is the personal one against the 
 defaulting; trustee. 
 
 IV. Liahilitij of Co-trustees. 
 The case of 
 
 TOWNLEYv. SHERBORNE 
 
 [Bridg. Rep. 35 ; 2 \V. & T. L. C. 870] 
 
 has been long referred to as a leading authority on the 
 general liability of a trustee for the acts and defaults of 
 his co-trustee. 
 
 BRICE V. STOKES 
 [11 Ves. 319; 2 AV. & T. L. C. 877] 
 
 illustrates the particular case of the liability which arises 
 
 fx'om the joining of trustees in giving receipts. 
 General The former case establishes the general principle that a 
 
 affainsttLe trustcc is not to be held liable for the acts or defaults of a 
 liability, co-trustee, in which he himself has not participated. As 
 
 betvv'oen co-executors also the same rule applies (i). 
 
 There are, however, many circumstances which will take 
 
 a case out of this general rule. Thus a trustee or executor 
 
 (/) Ruhinson v. IL, 11 Beav. 371, (A) Thormlijkc v. Hunt, 3 De G.& 
 
 375. J. 563. 
 
 (y) Jlanhj V. Met. <tr. Co., 7 Ch. ((') Litthhaks v. Gascoyne, 3 Bro. 
 
 427. C. C. 73. 
 
 Excep- 
 tions.
 
 LIAr.ILITV OF C'O-TllU.STKKS. ]I7 
 
 who, tliough ho has not participated in the act which has 
 resulted in loss to the trust estate, has been guilty ofNcgli- 
 negligence, or has stood by and been cognisant of witliout ^^'^^i 
 interfering with a devastavit or breach of trust committed cence. 
 by his co-trustee or co-executor, will be held responsible 
 for it (/i'). In the latter of these cases, an executor, who 
 took no active part in the trusts, was held liable for per- 
 mitting his co-executor to retain the testator's monies in a 
 business in which the testator had been partner with the 
 co-executor. Both had proved the will, and having thus 
 undertaken the duty of properly attending to the trusts 
 were bound to diligence therein. Permitting a co-executor 
 to receive the assets and retain them in his hands without 
 proper investment, will also render an executor liable for 
 any loss thus incurred : proper measures ought to be 
 promptly taken to prevent such a breach of trust (/). 
 
 Still more certainly if a trustee or executor is guilty of Fraud, 
 any fraud in the matter of the trust, he will not be able 
 to escape liability by throwing the blame on a colleague in 
 the office. 
 
 Executors being jointly responsible for the management Unduly 
 of the funds of their testator, questions as to liability often co"exT-^ 
 arise when one pays over to his co-executor, or allows him cutors. 
 to receive the whole or part of the assets, so that he 
 acquires an exclusive control over them, and they are after- 
 v/ards lost through his misconduct. The liability in these 
 cases depends upon circumstances. Generally, if an execu- 
 tor thus puts the funds into the power of his co-executor, 
 and they are lost through his bankruptcy, or are embezzled 
 by him, the former is liable to make good the loss (m). 
 And it matters not wdiether this power is given by an 
 absolute j^ayment to a co-executor, or otherwise, as by join- 
 ing him in indorsing or drawing negotiable instruments (??). 
 
 {k) MucMow V. Fuller, Jac. 198 ; 356 ; Langford v. Gascoyne, 11 Ve?. 
 
 Booth V. B. 1 Beav. 125. 333. 
 
 (l)Lincolnv.Wr'iglit,i'S>ea.v.A1'; (n) Ilovey v. Blaleman, 4 Vep. 
 
 Stiles V. Guy, 1 Mac. & G. 422. COS ; Saddkr v. Ilobbs, 2 Bro. C. C. 
 
 (m) Tou-nscnd V. Barhcr, 1 Dick. 114.
 
 118 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 When a 
 co-execu- 
 tor may be 
 rightly 
 tnisted. 
 
 Husband 
 of exe- 
 cutrix 
 liable for 
 
 devastavit. 
 
 At law. 
 
 Equity. 
 
 Trustees 
 joining in 
 receipts. 
 
 Where it 
 is for- 
 mally 
 necessary. 
 
 But if, in the usual course of the management of the 
 trust, it is necessary for an executor to pay over some of 
 the assets to his colleague, if, for instance, one of them 
 resides in a neighbourhood where a debt has to be paid, 
 and money is remitted to him for that purpose by the 
 other, the executor so remitting money incurs no liability (o). 
 Nor will an executor be liable for payment over of a fund 
 which he had no legal right to retain (p). 
 
 If a married woman who is executrix or adminis- 
 tratrix commits a devastavit during the coverture, her 
 husband will be liable for the loss (q), as he will be pre- 
 sumed to have authorised the dealings of his wife (?•), and 
 this, notwithstanding that she may have been living sepa- 
 rate from him at the time (.s). At law, formerly, in case 
 of such devastavit, as well as of a devastavit committed 
 before the coverture, the husband's liability entirely ceased 
 at the wife's death, unless a judgment had already been 
 recovered against him, or goods remained in his hand in 
 specie so as to be recoverable by trover or detinue ; but in 
 equity, and now therefore in law also {t), the husband 
 surviving the wife is liable to the extent of assets coming 
 to his hands, upon the ground that all persons who come 
 into possession of property subject to a trust, with notice 
 of the trust, are bound by it (u). 
 
 Where a trustee joins with a co-trustee in signing 
 a receipt for trust money, it is necessary in order to 
 estimate the liability thus arising, to inquire into the 
 circumstances of the particular case. Every case will on 
 examination be found to fall under one or other of the 
 following heads. 
 
 (1.) If the signature of all the trustees is formally neces- 
 sary to the receipt, the signature of a trustee to whose 
 hands the money docs not come will not suffice to render 
 
 (o) Bacon v. B., 5 Ves. 331 ; Joij 
 V. Campbell, 1 S. & L. 341. 
 
 (jP) Davis V. tipurUivj, 1 Russ. & 
 My. 61. 
 
 (7) Adair v. Shaw, 1 S. & L. 243. 
 
 ()■) Smith V. -S". 21 Beav. 385. 
 (s) Pa'jct V. Read, 1 Vern. 143. 
 (t) Jud. Act, 1873, s. 25. 
 (h) Adair v. Shaiv, sup.
 
 LIABILITY OF CO-TEUSTEES. 119 
 
 him liable to account for it («). It is but reasonablo 
 that in a case in which he has no power to refuse to sign, 
 his signature should not without more fix him with a 
 liability. 
 
 And the rule as to executors is the same in similar cir- Executors, 
 cumstances. It is true that it is not so often necessary 
 for a co-executor to join in a receipt or discharge for con- 
 formity's sake ; but where, as in the case of a sale of 
 stock standing in the names of executors, the concurrence 
 of both is necessarj^, the one to whose hands the funds 
 do not come will not be liable (?/). 
 
 But in these cases where the signing is alleged to have Burden of 
 been for mere conformity, the burden is on a trustee seek- person"" ^ 
 ing to clear himself, to prove that his co-trustee's were the ^Jgiiino- 
 actual hands which received the money. The signature 
 thus creates Vi primd facie liabihty in all cases {z). 
 
 Where, moreover, the transaction of which the receijDt Where the 
 forms part is, as it was in Brice v. Stokes (a), wholly unne- tjon jg ^n- 
 cessary, and the trustee signing then permits his co-trustee necessary. 
 to deal with the monies contrary to the trust, he will be 
 charged with any loss thus occasioned. The entire trans- 
 action being unnecessary, the fact that the mere signature 
 was for conformity is not sufficient to discharge him (b). 
 And it is the duty of a trustee to inquire as to the necessity Trustee 
 of a transaction respecting the trust money ; he may not quh-e as to 
 escape by alleging ignorance of the state of the trust (c). ^^^ neces- 
 
 And similarly an executor will not be justified in those 
 cases where his formal concurrence is necessary, in joining 
 in a transaction ujDon the mere representation of his co- 
 executor that it is necessary for the j^urposes of adminis- 
 tration. He must make proper inquiries ; if he does not, 
 he will be liable for any misappropriation (c?). 
 
 (x) Ilcaton V. Marriott, cited Prec. (a) sup. 
 
 Ch. 173 ; Fellows v. Mitchell, 1 P. {h) See Brlce v. Stolces. sup. ; 
 
 Wms. 8 1 . Walker v. Sijmonds, 3 Swanst. 1 ; Iivjlc 
 
 (?/) Ckamlers v. Minclun, 7 Ves. v. Partridge, 32 Beav. 661. 
 
 186, 197. (c)JIaniiurij\.KirUand,SSim.26iJ. 
 
 (z) See Brice v. Stoles,!! Ves. 319; (d) Shipbrooh v. Himhlnhrook, 11 
 
 Fellows V. Mitchell, sup. Ves. 252, 16 Ves. 477.
 
 12:) DUTIES AND LIAIUI.ITIES OF TRUSTEES. 
 
 Voluntary (2.) Wlicro, Oil tlic Contrary, a person joins voluntarily 
 
 a"recefpt? ii^ ^ receipt, in which his concurrence is not formally 
 
 requisite, such interference being unnecessary, he is to be 
 
 considered as assuming a power over the fund, and is 
 
 therefore answerable for the application thereof, as far as 
 
 it is connected with the particular transaction in which ho 
 
 joins (e). 
 
 Distinc- ^his difference usually distinguishes the case of receipts 
 
 tween by oxccutors from that of receipts by trustees. In the 
 
 trustees ^^^^ ^^ trustees it is commonly requisite that all should 
 
 and execu- -^ •■ 
 
 tors. join in order to effect a complete discharge. They arc, 
 
 therefore, usually not liable for monies not coming to their 
 hands. On the contrary, one executor being generally 
 competent to give a valid receipt, the joining of a co- 
 executor is as a rule unnecessary ; and as a rule, therefore, 
 executors who so sign are bound by their signatures. 
 
 Excep- But there are exceptions to this. Where the act of 
 
 signing is merely nugatory and has not the effect of putting 
 the trust funds in the hands of a co-executor, for instance, 
 if he has already previously received the money, such 
 signature will not raise a liability (/). This is a very 
 extensive exception, and reduces the rule almost to this, 
 that the question really to be decided is whether the money 
 w'as ever under the control of both executors ((/). 
 
 General The general conclusion, then, as to the receipts of 
 
 " executors seems to be, that where funds belongiiify to 
 executors are not under the separate control of each, 
 although one of them joins with his co-executor in any 
 act or receipt which will have the effect of putting the 
 funds into his hands, as the joining is absolutely ne- 
 cessary, and is not therefore evidence that the executor 
 so joining thereby assumes a control over the fund, the 
 principle which governs the case of trustees will be ap- 
 plicable, and he will net be liable, if he has used due 
 
 (c) See Brice v. StoJccs, 11 Ves. 357. 
 319 ; Lci'jh V. Bamj, 3 Atk. 584. (f/) Jmj v. Camnhcll, 1 S. & L 
 
 (/) Westky v. Clarle, 1 Eden. 341.
 
 LIABILITY OF CO-TRUSTEES. 121 
 
 caution, for tlio misapplication of the fund by his co- 
 executor (/i). 
 
 An express clause was formerly usually inserted in trust Indemnity 
 deeds, providing that one trustee should not be answer- ^ ''^"^'^*'- 
 able for the receipts, acts, or defaults of his co-trustees. 
 Equity infused such a proviso into every trust deed, 
 whether expressed or not (<!'), and no better right was given 
 by the expression of that which if not expressed was 
 implied (k). And now Lord St. Leonards' Act (I), s. 31, 22 & 23 
 
 "Vict c ^^i 
 
 enacts that every instrument creating a trust shall be s. 31] ' 
 deemed to contain the usual indemnity and reinvestment 
 clauses. It is no longer, therefore, necessary to introduce 
 such clauses; and in some respects it may be deemed un- 
 desirable, since it may happen that the clause may be so 
 framed as to receive a narrower construction than would 
 be applied to the statute itself. 
 
 Independently also of any express indemnity, a trustee 
 who accepts office at the request of a cestui que trust is 
 entitled to be indemnified by him personally against any 
 loss which may accrue in the j)roper execution of the trust : 
 for instance, if he is made contributory on the failure of a 
 company in which he holds shares in the character of 
 trustee (m). 
 
 Remedies against trustees. 
 
 (1.) Proceedings in equity in respect of a breach of trust Generally 
 may be taken not only against trustees or executors but fn°g^n 
 also against their representatives, even though the loss equity 
 may not have occurred until after the death of such trustees r-r 
 trustees (n), and although they may have distributed the *'^^^'" ^f" 
 
 ; '' _ "^ ./ ^ preseiita- 
 
 assets without notice of the breach of trust, unless they tives. 
 have done so by order of the Court (0), or pursuant to 
 22 & 23 Vict. c. 35, s. 29 ; and the Statutes of Limitations 
 
 (/() Ilovey V. Blaheman, 4 Ves. [m) Jcriis v. Wo?fersta7i, IS Eij. 
 
 596, 608. 18. 
 
 (i) Bauson V. Clarice, ISYes. 254. (n) Dcvaiinc& v. Noble, 2i Beav. 
 
 (/.) Worrall v. Ilarfm-d, 8 Ves. 4, 86. 
 8 ; Behden v. Wesley, 29 Beav. 213. (o) March v. liitssell, 3 My. & Cr. 
 
 (0 22 & 23 Vict. c. 35. 31 ; Taijlor v. T., 10 Eq. 477.
 
 122 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Statutes of 
 Limita- 
 tions not 
 applicable. 
 
 Effect of 
 decree. 
 
 Contribu- 
 tion. 
 
 Cestui que 
 trust ac- 
 quiescing 
 in breach 
 of trust. 
 
 Bank- 
 ruptcy of 
 trustee. 
 
 Neglect to 
 prove. 
 
 arc no more available for the representatives than for 
 trustees themselves (p). Nor will a settlor, who has 
 covenanted to pay a sum of money and so constituted 
 himself trustee thereof, be able to set up the statute in 
 defence ((/). 
 
 Where several trustees are all guilty of a breach of 
 trust, although the cestui que trust may have obtained a 
 decree against them jointly, its effect is several also, and 
 he may proceed to take out execution against any one of 
 them alone (r) ; but as between the trustees themselves, 
 any one so paying is entitled to contribution, which may in 
 a proper case be ordered in the same suit (s). As between 
 the trustees themselves the loss may be thrown primarily 
 upon the trustee most in fault, or his estate (t). 
 
 Where a cestui que trust derives any jDrofit from a 
 breach of trust, he will to that extent be bound to recoup 
 the trustee (?() ; and if a cestui q^ie trust, with knowledge 
 of the fact, receives the income from an improper invest- 
 ment, he is bound to give credit for the difference between 
 it and the income which would have arisen from a proper 
 investment of the trust fund (x). 
 
 (2.) When a trustee becomes bankrupt, what he owes to 
 the trust may be proved against his estate (y), deducting, 
 however, the value of any beneficial interest which he him- 
 self may have in the trust estate (z). Although the original 
 debt is barred when a bankrupt trustee obtains his order 
 of discharge (<'.), nevertheless it having been the trustee's 
 duty to prove the debt for the benefit of the cestui que 
 trust, he will, if he has neglected so to do, be liable for the 
 consequent loss, notwithstanding his discharge (h). The 
 
 (p) Ohec V. B!sJio2->, 1 De G. F. & 
 J. 137 ; Butler v. Carter, 5 Eq. 270 ; 
 Jud. Act. 1873, s. 25, sub.-?. 2. 
 
 (f/) Stone V. S., 5 Ch. 74. 
 
 ()•) Ex2x Shalceshaft, 3 Bro. C. C. 
 197. 
 
 (s) Priestman v. Tindnll, 21 Bcav. 
 244. 
 
 (0 Fctherstone v. West, 6 I. K. 
 
 Eq. 86. 
 
 («) Traford v. Boehn, 3 Atk. 440. 
 
 (x) Davies v. Ilodrjson, 25 Bcav. 
 177. 
 
 (y) Exp. Shalceshaft, sup, 
 
 (z) Exp. Turner, 2 De G. M. & 
 G. 927. 
 
 ^rt) Exp. Ilolt, 1 Deac. 248. 
 
 {h) Orreit v. Corser, 21 Beav. 52.
 
 REMEDIES AGAINST TRUSTEES. 123 
 
 original debt is not indeed revived, but a fresh liability 
 springs from the negligent breach of trust. 
 
 Where all the trustees are bankrupt, proof may be made 
 against the estates of all, provided that not more than 
 20s. in the pound is recovered (c). 
 
 (3.) The remedy of a cestui que tj-io4 who is sui juris Remedy of 
 
 , , 111- • cestui que 
 
 may be barred by his acquiescence, or concurrence, trust when 
 or by his executing: a release (d). But persons under barred by 
 
 ■^ ■=* \ / X acquies- 
 
 disability do not so lose their remedy unless they have by cence, cou- 
 th eir own fraud induced the breach of trust (e). A married o^rg^i^ase 
 woman, however, being treated as a feme sole as regards 
 her separate estate, may bind it by her concurrence in a 
 breach of trust (/), unless she Avas either herself deceived, 
 or under undue influence ([/), or was restrained from 
 anticipation (h). 
 
 Misrepresentation or concealment on the part of trustees 
 will prevent their defending themselves on the ground of 
 the cestui que trust's acquiescence {i). And mere conniv- 
 ance of a cestui que trust at a breach of trust from which 
 he derives no benefit, will not prevent his complaining of 
 the transaction long after he first discovered it (k). 
 
 Similarly the execution of a release or confirmation will 
 not prevent his taking action unless he has full knowledge 
 of the facts of the case (I) and of their legal effect (in). 
 
 (4.) Fraudulent breaches of trust are not only actionable 
 but also indictable (n), after leave obtained from the Attor- 
 ney-General or from the judge before whom any civil pro- 
 ceedings resi3ecting the trust have been taken (o). 
 
 (c) Kehle v. Thompson, 3 Bro. C. {h) Coclccr v. Qiiayle, 1 Russ. & 
 
 C. 112. My. 535. 
 
 (cZ) See Brice v. Stairs, 11 Ves. [i) Wallccrv. Symonds, sup. 
 
 319; Walker Y. Symonds, Z ?^w.xn>it. (k) PhilUpson v. Gatty, 7 Hare, 
 
 1, 64. 516. 
 
 (e) Montfort v. Cadogan, 19 Yes. (I) Randcdl v. Erring/ton, 10 Ve-i. 
 
 635, 639, 610 ; ^yilJcinson v. Parry, 423. 
 
 4 Russ. 272, 276 ; Savaga v. Foster, (m) Cockcrell v. Cholmdey, 1 Ens?, 
 
 9 Mod. 35. & My. 425. 
 
 (/) Clive V. Carew, 1 J. & H. 199. {n) 24 & 25 Vict. c. 96. 
 
 ((j) Whistler v. Newman, 4 Yea. {o) s. SO. 
 
 129.
 
 12-1 ];k.mi'N'i:i!Ati()N of tuustkk«. 
 
 SErxiON VI. — Remuneration of Trustees. 
 
 I. General iivinciple. 
 E-obinson v. Pett. 
 ir. Limits of the iwinciple. 
 III. To whom it applies. 
 
 I. General prlaciple. 
 The leading case of 
 
 ROBINSON V. PETT 
 
 [3 P. Wilis. 249 ; 2 W. & T. L. C. 207] 
 
 is usually cited as establishing the rule that the Court of 
 Chancery will not allow an executor or trustee to claim 
 payment for his time and trouble in executing his trust, 
 especially when an express legacy is provided for his pains. 
 
 It is a well-established principle in equity that a trustee 
 shall not be permitted to profit by his trust, and one of 
 the most important deductions therefrom is the rule 
 illustrated by this case. 
 
 The acceptance of the office of trustee being optional, no 
 hardship is occasioned by requiring that the performance of 
 its duties shall be gratuitous ; while if remuneration was 
 allowed, it is evident that it would be difficult if not im- 
 possible to keep it within reasonable bounds, and to pre- 
 vent the frequent and excessive burdening of trust estates. 
 
 The rule thus enunciated is sufficiently simple, but in 
 order to an adequate appreciation of its scope it is neces- 
 sary to observe carefully some instances of its application 
 to the ever-varying circumstances which occur in practice. 
 The first inquiry will be. What are the limits of the 
 application of the principle ? Secondly, To what persons 
 does it extend ?
 
 LIMITS OF THE PRINCIPLE. 125 
 
 II. W/tat are the limits of the applicatiun of the 
 principle 1- 
 
 1. It matters not to what extent the trustee may have Extent of 
 devoted himself to the duties of the trust, or to what extent and of the 
 the trust has been thereby benefited. As we shall pre- ijc'iefit re- 
 
 1 • -111 • 1 • suiting im- 
 
 sently see, he is entitled to be repaid pecuniary expenses material, 
 actually and properly incurred, but though he may have 
 even carried on a trade or business at a great sacrifice of 
 time and thought, he can claim no compensation for his 
 personal trouble or loss of time {p). 
 
 2. Not only is a trustee not entitled to direct remunera- Indirect or 
 tion for time and trouble devoted to the trust, but he is benefitr 
 not suffered by any indirect or collateral means to obtain ^^^ 
 
 1 p 1 • • • m • 1 allowed. 
 
 an advantage out oi his position. Iwo extensive classes 
 of cases coming under this head have already been con- 
 sidered in dealing with constructive trusts, where we have 
 seen tliat a trustee is disabled from taking advantage of 
 his position to benefit himself by means of any dealings 
 with the trust estate or with his cestui que trust. But the 
 cases go farther than that. Thus, though the lesfal estate Such as 
 in land is vested in a trustee, it has been held that he ov°r t"ust 
 cannot by means thereof claim the right of sporting over estate, 
 the land. If the sporting could be let for the benefit of 
 the cestui que truest, it should be ; if not, the game would 
 belong to the heir (q). A trustee cannot sell his office. Selling hla 
 If he attempts to do so, any money so paid to him will be ° ^®' 
 considered part of the trust fund (r). 
 
 A trustee also will not in general be appointed receiver Being ap- 
 with a salary (s), but he may be so employed if no one receiver 
 else can be procured who will act with the same benefit to ^ith a 
 the estate (f). If he even offers to act as receiver Avithout 
 
 (p) Broclcsopp V. Barnes, 5 Madd. G. 192. 
 
 90; Barrett v. Hartley, 2 Eq. 789. (s) Anon, 3 Vep. 515; Nicholson 
 
 {q) Webb v. E. of fHiaftesburi/, 7 v. Tiitin, 3 K. & J. 159. 
 
 Ves. 480, 488. (0 Sykes v. Ilastinrjs, 11 Ves. 363, 
 
 {r) Swjden v. Crossland, 3 Srn. & 304.
 
 126 llEMUNERATION OF TRUSTEE. 
 
 a salaiy, lie will only be appointed on the ground tbat it is 
 for the benefit of the estate, because it is the trustee's 
 duty to see critically that the receiver does his duty (u). 
 He may 3. Nor can a trustee utilise the trust funds in any way for 
 
 not use the ,. ■, /->iTri- i j.* ^ • \ ■ 
 
 trast funds ^^is own benefit. If he improperly retains such m his own 
 for bi.s liands, even though it be not shown that he made any 
 
 benefit. ^ ' , , .„ , , , . , . , 
 
 profit thereby, he will be charged with interest there- 
 upon (.X"). If he employs them in any trade or adventure 
 of his own, the cestui que trust may either insist on having 
 the profits made by such trade or on having the trust fund 
 replaced with interest (y). Thus if the adventure be suc- 
 cessful the cestui que trust gets all the benefit; if it fail the 
 trustee must account for the fund with interest, ordinarily 
 at 4 per cent., but not hmited thereto (z). Should a diffi- 
 culty arise in any case as to the tracing and apportioning 
 of the profits derived by a trustee or executor from the 
 employment of trust funds together with his own in any 
 trade or speculation, it may be a reason for preferring a 
 fixed rate of interest to an account of the profits ; and it 
 seems that the usual rate in such cases would be 5 per 
 cent, with yearly rests ; i.e. compound interest (a). For 
 further review of a trustee's liability in respect of invest- 
 ments see su'pra, pp. 110 — 116. 
 
 Such being the general doctrine in its full extent, we 
 now inquire Avhat allowances to trustees are not deemed to 
 be profits within the meaning of the rule, and which, there- 
 fore, they are entitled to claim, and also what circum- 
 stances may suffice to raise exceptions to the rule. 
 But 4, Trustees are allowed all proper expenses out of 
 
 areallowed pocket, whether jDrovided for in the instrument creating 
 "'^V^t ^^^^ trusts or not (6), and none the less that remuneration 
 exijenses. for their trouble has been allowed them by the author of 
 
 (u) Jlibhert v. Jcniclns, 11 Vei^.oGS, {:.) Tells v. Carpenter, 1 Madd. 
 
 cited. 290; Foo-lcs v. Ross, 2 Cox, 116. 
 
 (x) Pearse \. Green, 1 J.& W. 135; (a) Jones v. Foxall, 15 Beav. 392. 
 
 Blow V. Johnson, 2 Ch. 225, 229. But see Emmet v. E. 17 Cb. D. 142. 
 
 - " " "-'"-- {I) Hkley. Haywood, 1 Aik.l2Q: 
 
 Worrall v. Harford, 8 Ves. 4, 8. 
 
 (y) Docl-er v. Somes, 2 My. & K. 
 555 ; Toxvnend v. T. 1 Giff. 201.
 
 LIMITS OF THE PEINCIPLE. 127 
 
 the trusts (o). Thus they are allowed travelling expenses (<?) ; 
 law expenses (e), unless they were improper, or the litiga- Properly 
 tion arose from their own fault or negligence (/) ; all ^'^*^""*^ ' 
 necessary and proper expenses incurred in protecting the 
 trust property, for instance, watching or opposing a bill in 
 Parliament for that purpose (g) ; all proper outlay for the 
 improvement of the proj^erty, witli interest thereon (A), for 
 paying of incumbrances thereon (i), or defending the title 
 thereof (A;). They are also entitled to be indemnified by and are 
 their cestui que trust from any liability arising from their ij"(]fjiinitv 
 holding shares in his name (/), and from the costs of any for liabili- 
 action commenced against them in their fiduciary character incurred. 
 or in relation to the trust estate {m). 
 
 Not only is a trustee entitled to such expenses, but he Lien for 
 has a lien on the trust estate to secure them, which must ^^P^^^^ea 
 be satisfied before the cestui que trust can compel a recon- 
 veyance from the trustees (n). Such lien has priority and 
 over the costs of a suit for the administration of the trust ^^^^°" ^' 
 fund (o). If the trust estate no longer exists the trustees 
 may proceed against the cestui que trust personally (2>). 
 
 5. Though the office of trustee, being one of personal When 
 confidence, cannot be delegated, trustees may in . special j^^y i,e 
 cases employ agents whose expenses will be allowed out of employed, 
 the estate. Thus, upon making out a proper case, a trustee 
 may employ a bailiff to manage an estate and receive the 
 rents (q), even though a recompense may have been given 
 him by the creator of the trust for his trouble (r). So a 
 
 ((■) Wilkinson V. W., 2 S. & S.237. ^ (I) James v. 3Ia>/, 6 L. R. H. L. 
 
 (d) Exp. Loregrove, 3 D. & C. 763. 328. 
 
 (e) Poole V. Pass, 1 Beav. 600 ; (to) Benett v. Wyndham, 4 De G, 
 Amand v. Bradbourne. 2 Ch. Ca. ¥. k, 3.2^^; Att.-Gen.Y. M.of Nov- 
 138. wicli, 2 My. & Cr. 406. 
 
 (/) Peers V. Ceeley, 15 Beav. 209; [n) Re Exhall Coal Co., 35 Beav. 
 
 Caffrey v. Darhy, 6 Ves. 488 ; Mai- 449. 
 
 colm V. O'Callaghan, 3 My. & C. 52. (o) Morison v. M., 7 De G. M. & 
 
 (fj) Bright v. ^ North, 2 Ph. 216. G. 214, 226. 
 
 (h) Quarrel v. Bedford, 1 Madd. (2?) Balsh v. Iligham, stq). 
 
 269, 282. iq) Bonithon v. Hiclmore, 1 Vera. 
 
 (i) Balsh V. Higham, 2 P. Wms. 316; Stewart v. Iloare, 2 Bro. C. C. 
 
 453. 663. 
 
 (Ic) Sarulers v.IIoo2xr,G BeSiV.2i6. ()•) Wilkinson, y. W., siqh
 
 128 KEMUNEKATION OF TKUS'lEE. 
 
 solicitor or an accountant may be employed where neces- 
 sary («), or an agent to collect debts at a reasonable com- 
 mission (t). But if a solicitor or other such agent is 
 employed to do things which the trustee ought strictly 
 to have attended to himself, his charges will not be 
 alloAved (u). 
 Remunera- G. It is quite open for the creator of the trust to autho- 
 tion may ^.j^^ ^ trustee to charo'c for services rendered, and in doing 
 
 be author- " . , . 
 
 ised by so either to fix the amount of compensation or to leave it 
 thrtrustf open. The most ordinary case of such allowances 
 beino- authorised is where a solicitor is appointed trustee, 
 with power to charge for professional services rendered. 
 If the amount of the sum or salary to be paid in con- 
 sideration of such services is specified, no question can 
 arise ; if the compensation is not so fixed a reference will 
 be directed to settle what is a proper allowance (v). It 
 appears that such authorisation may arise from implication 
 if clear (x). 
 
 An annuity given to an executor for his trouble until a 
 general settlement of the testator's affairs, was held not to 
 cease on the institution of an administration suit (y) ; but 
 where an annuity was given to a trustee as long as he 
 should continue to execute the oflEice of trustee, it was held 
 that it ceased upon the termination of all active duties 
 upon the payment of the whole of the trust fund to a 
 person absolutely entitled (z). If such an annuity or other 
 remuneration is authorised, and the trustee does not act, 
 even though he be rendered incajjable of so doing by the 
 act of God, he is not entitled to receive it (a). 
 
 Where a solicitor is authorised to charge for professional 
 services, this is considered only to include services strictly 
 
 (s) Macnamara v. Jones, 2 Dick. Willis v. Kihhle, 1 Beav. 559. 
 
 587 ; Henderson v. Mclver, 3 Madd. (x) JJouylas v. Archhutt, 2 De G. 
 
 275. & J- 148. 
 
 (t) Hopkinson v. Roe, 1 Beav. ISO; (y) lialicr v. Martin, 8 Sim. 25. 
 
 Weiss V. Dill, 3 My. & K. 26. {:) Hull v. Christian, 17 Eq. 546. 
 
 (u) Harbin v. Darby, 28 Beav. (ft) Hunbvry v. Spooncr, 5 Beav. 
 
 325. 630; Slaney v. Watney, 2 Eq. 418. 
 
 ((•) Ellison \: Aire y, 1 Ves. Jr. 115 ;
 
 LIMITS OF THE PRINCIPLE. 129 
 
 professional, and not matters which an ordinary executor 
 ought to do without the intervention of a solicitor (6). 
 
 7. A trustee may contract with his cestui que trust to Or trustee 
 
 , • f> , • , 1 r may cou- 
 
 receive some remuneration lor acting or to make proies- tj-g^^^ f,)^ 
 sional charges for so doing. But such a contract would be remunera- 
 jealously watched by the Court, and would be set aside, the cestui 
 unless it were perfectly fair, and obtained without any ^"^ *''"*'• 
 undue influence (c) ; and the contract must in distinct 
 terms take the trustee out of the general rule ((/), 
 
 8. A trustee may also contract with the Court that he Or with 
 will not undertake the trust without proper compensation ; ® """^ ' 
 and if he undertakes the trust upon the understanding 
 
 that apjjlication should be made to the Court for compen- 
 sation, a reference %vill be made to chambers to ascertain 
 and settle what would be a reasonable allowance for his 
 past and future services (e). The principle is the same as 
 that of section 29 of the Bankruptcy Act, 1869, by which 
 a solicitor trustee may contract for remuneration. 
 
 9. Lastly, a trustee may sometimes, from accidental cir- Accidental 
 cumstances, profit by his trust in a manner quite irres- accrues in 
 pective of any claim for remuneration or compensation. ^'^^^ "r- 
 Where, for instance, a cestui que trust dies intestate and stances. 
 without heirs, the trustee is entitled to the benefit of any Lapse of 
 realty vested in him as such, subject to the rights of 
 creditors of the deceased cestui que trust. This accidental 
 benefit accrues to him, however, not from the strength of 
 
 any title of his own, but because no other person can 
 show any title at all (/). The only person who could j)ut 
 in any claim would be the lord or the Crown, on the 
 ground of escheat ; and in that case it was decided that 
 where the legal estate was already vested there was no 
 escheat, or right to compel a conveyance from the trustee. 
 On the same principle where a mortgage in fee is made, 
 
 {I) Uarlin v. Darly, sup. 432, 453; Morrison v. M., 4 My. & 
 
 (c) AijUfe V. Murray, 2 Atk. 58. C. 215. 
 
 (d) Moore v. Frowd, 3 My. & C. (/) Burgess v. Wheate, 1 Eden, 
 45. 177. 
 
 (e) Marshall v. Hollowty, 2 Swanst.
 
 130 REMUNEIIATION OF TRUSTEE. 
 
 and the mortgagor dies intestate and without heirs, the 
 
 equity of redemption does not escheat, but belongs to the 
 
 mortgagee, subject to the mortgagor's debts (g). And 
 
 where land is devised to trustees upon trust to convert into 
 
 money for purposes which either fail or never take effect, 
 
 and the testator dies without heirs, the land if unconverted, 
 
 or if it has been unnecessarily converted the proceeds 
 
 thereof, will belong absolutely to the trustee (h). 
 
 But then Nevertheless, in such cases the trustee cannot come into 
 
 cannot^ ^^ equity as plaintiff to assert his right (i) : the Court of 
 
 come as King's Bench, however, has by mandamus compelled an 
 
 plaintiff to . . n t t -i ■ t ,i\ 
 
 assert his aduiission on the mere force of the legal title (A;). 
 
 right. j^ trustee of personalty can reap no such advantages as 
 
 spending those above described ; since if in this case a cestui que 
 
 advantages fy^/^^i (\[q^ intestate and without next of kin, the Crown by 
 m case of _ ^ _ _ _ "^ 
 
 personal virtue of its prerogative can claim the chattels as bona 
 estate. /• /7\ 
 
 vacantia {(). 
 ] Will. IV. Before 1 Will. IV. c. 40, where a testator made no 
 '"' ' express disposition of the residue of his jiersonalty, the 
 
 executors were at law entitled thereto ; nor did Courts of 
 equity interfere with their enjoyment, unless it appeared 
 to be the testator's intention to exclude them from interest 
 therein. By that Act, however, as to wills made since the 
 1st Sept., 1830, executors are declared to be trustees of 
 such undisposed of residue for the next of kin under the 
 Statute of Distributions, unless it should appear by the will 
 that the executors were intended to take it beneficially. 
 The onus of proving an intention in their favour is thus 
 thrown upon them (m). 
 
 ig) Beale v. i:iijmonds, 16 Beav. 431. 
 
 406. (I) Powell V. Mcrrett, 1 Sm.&G.381 ; 
 
 (/() Taylor v. Haygartli, 14 Sim. 8. Middleton v. Spker, 1 Br. C. C. 201. 
 
 (t) 1 Eden. 212; Williams v. Lons- {m) Harrison v. H., 2 H. & M. 
 
 dale, 3 Ves. 752. 237. 
 
 (A) The King v. Coggan, 6 East,
 
 TO WHAT PERSONS THE DOCTRINE APPLIES. 131 
 
 III. — To what i')ersotis the doctrine apjMes. 
 
 1. In Robinson v. Pett (n), under circumstances some- Trustees 
 what strongly in favour of allowing remuneration if possible, f execu 
 it was refused to one who was apjjointed to the office of 
 trustee and executor, notwithstanding that he had re- 
 nounced the executorship. Express trustees and executors 
 
 are, therefore, seen to be most fully under the operation of 
 the rule. 
 
 It matters not that the executor has been carrying on the Of what- 
 business of a deceased partner (o), nor wdiat his occupation patLn"^^' 
 or employment in life ; for instance, neither a factor (jj), 
 nor a commission agent (q), nor an auctioneer (?•), is allowed, 
 without such authority as has been above mentioned, to 
 make business or professional charges for work done in the 
 execution of a trust which he has undertaken. 
 
 2. A solicitor who is appointed executor or trustee is with- Solicitor 
 
 tmstiGG 
 
 in the rule («), but this case requires special consideration. 
 
 Not only is such a solicitor personally disqualified from 
 receiving remuneration, but it has been held that the firm 
 to which he belongs is equally unable to charge the cestui 
 que trust save for out of pocket costs and expenses (t), even 
 though the business was actually attended to by a partner 
 who was not a trustee (u). 
 
 There are, however, certain special limitations of the 
 principle as applied to solicitors. Thus — 
 
 (1.) Under peculiar circumstances, for instance, in case of Excep- 
 a protracted successful litigation Avhich the solicitor in ques- ^°^_ 
 tion was alone qualified to conduct, an inquiry was directed stances, 
 to give some remuneration or compensation to him (x). 
 
 (n) 3 P. Wms. 249. & G. 160. 
 
 (o) Burden v. B., 1 V. & B. 170. (t) Ibid. 
 
 {p) Scattcrc/ood v. Harrison, Mos. (v) Christojihas v. fUiife, 10 
 
 128. Beav. 523 ; Lincoln v. Windsor, 9 
 
 (q) Shcrriffv. Axe, 4 Kuss. 33. Ha. 158; but see Cradodc v. Pijiir, 
 
 (?•) Kirkman v. Booth, 11 Beav. 1 Mac. & G. 664. 
 
 273. [x) Bainhvir/fje v. Blair, 8 Beav. 
 
 (s) Brotirjhton v. B., 5 De G. M. 588, 595. 
 
 K 2
 
 132 
 
 REMUNERATION OF TRUSTEE. 
 
 inent of 
 partner. 
 
 Ghai'ges 
 against 
 third 
 persons. 
 
 Town 
 agent's 
 costs. 
 Mort- 
 gagees. 
 
 Trustee in 
 bank- 
 ruptcy. 
 
 Accents. 
 
 Chairman 
 and direc- 
 
 (2.) An agreement between solicitors in partnership, that 
 the one who is appointed trustee is not to participate in 
 any of the profits or to derive any benefit from the business 
 done for the trusts, has been considered sufiicient to admit 
 of his partner being employed as solicitor on usual 
 terms {y). 
 
 (3.) A solicitor trustee is allowed any charges or profits 
 he may make which are not chargeable against the cestui 
 que trust, but against some person with whom he deals on 
 behalf of the trust ; for instance, against a mortgagor to 
 whom he advances the trust money on security {z). 
 
 (4.) The costs of the town agent of a solicitor trustee are 
 allowed (a). 
 
 3. A mortgagee with power of sale stands in a fiduciary 
 relation with regard to the mortgagor, and so will not be 
 allowed, either alone or conjointly with his partner in any 
 business, e.g. as auctioneers, to derive any profit from the 
 sale (6). 
 
 4. The trustee of a bankrupt, who acted as solicitor to 
 the fiat, though allowed to charge for his clerk's time 
 employed in the business of the bankruptcy, was not 
 allowed to make any profit thereupon (c). As to trustees 
 under the Bankruptcy Act, 1869, see supra, II. 8, p. 129. 
 
 5. An agent entrusted with money or any other property 
 for the purpose of using it for the owner's benefit, cannot 
 make any profit by the use thereof. Instances of such 
 disqualification being considered to attach to agency are 
 seen in the cases of a vendor of public stamps {d), the 
 master of a ship (c), and a part-owner of or partner in a 
 ship acting as ship's liusband (/). 
 
 6. A chairman or director of a company stands in a 
 fiduciary relation towards the company, and will not as a 
 
 ()/) Clacl: V. Carlon, 7 Jnr. N. S. 
 441. 
 
 (2) W/tituei/ V. Smith, 4 Ch. .513. 
 
 («) Jhirr/e V. Brutton, 2 Ha. 373. 
 
 (h) Matthison v. Clarice, 3 Drew. 
 3. 
 
 (c) Exp. Neicton, 3 De G. & Sm. 
 
 584. 
 
 (d) Alt. -Gen. v. Edmunds, 6 Eq. 
 381 
 
 (e) Shalkross v. Oldham, 2 J. & H. 
 609. 
 
 (/) 3IiUcr V. MacUy, 31 Beav.
 
 TO WHAT PERSONS THE DOCTRINE APPLIES. loS 
 
 nile be allowed to derive any profit beyond his salary from tors of 
 his office (g) ; and see also pp. 94, 95. companies. 
 
 7. The principle does not apply in all its strictness to Construc- 
 a person who is merely a constructive trustee. Though trustees 
 he must account for the profits of trust money employed, °"^ *"' 
 he will have an allowance made to him for his expenditure treated. 
 of time, skill, and trouble (h). Thus a surviving partner Surviving 
 is in a sense a trustee for the estate of the deceased ^^^ ^^^' 
 partner, but the trust is limited to the performance of the 
 obligation. Time runs in his favour (i), and if he continues 
 
 the business, though he must account for the profits, 
 he is entitled to a proper allowance for the trouble 
 of management (Jc). 
 
 8. There is a marked exception from the usual rule Managers 
 in the case of trustees and guardians managing the estates j^^^^^j* 
 of West Indian proprietors. By the West Indian Acts estates 
 of Assembly such managers are entitled to a commission ^^^^'^ ^'' 
 not exceeding 6 per cent, as long as they personally take 
 
 care of the management and improvement of the estates 
 committed to their charge (l). A mortgagee of West India 
 estates, as long as he is out of possession, may stipulate for 
 the consignment of the produce, and charge commission 
 on the net produce as his compensation. But v/hen he 
 is in possession he stands in the same position as a mort- 
 gagee in possession in England ; and therefore, if he chooses 
 to be consignee himself, he has no commission (m). 
 
 Formerly an executor appointed in the East Indies was 
 entitled, on passing his accounts in this country, to a 
 commission of 5 per cent. ; but this law is now altered, and 
 no commission will be allowed to such an executor unless 
 expressly given by the testator (n). 
 
 (g) Great Luxemhourg Ry, Co. v. H. L. 318, 329. 
 Magnay, 25 Beav. 586. (/) Chambers v. Ooldimn, 5 Ves. 
 
 (A) Bromi v. Litton, 1 P. Wms. 834 ; 9 Ves. 254. 
 140. (m) Faulkner v. Daniel, 3 Ha. 
 
 (i) Knox v. Gye, 5 L. E. H. L. 199, 218 ; Leitk v. Irvine, 1 My. & 
 
 656. K. 277. 
 
 {k) Featherstonehaugh V. Fenwick, (n) MattJieics v. Bagsliawe, 14 
 
 17 Ves. 298 ; Vyse v. Foster, 7 L. R. Beav. 126, and note.
 
 134 
 
 CHAPTER II. 
 
 FRAUD. 
 
 Distinction between Lavj and Equity. 
 Classification of Frauds. 
 
 Chesterfield v. Janssen. 
 I, Actual Fraud. 
 
 1. Arising from lurongfid acts. 
 
 Attwood V. Small. 
 
 2. Arising from wrongful omissions. 
 
 II. Transactions deemed on general grounds 
 inequitable. 
 
 1. Fraud 2>resumed from the nature of the 
 
 transaction. 
 
 2. Fraud presumed from the circumstances 
 
 or relation of the parties. 
 Huguenin v. Baseley. 
 
 III. Frauds on imblic iJolicy. 
 
 Scott V. Tyler. 
 
 IV. Frauds on the private rights of third j^ersons. 
 
 Barry v. Crosskey. 
 Savage v. Foster. 
 Aleyn v. Belchier. 
 
 There is no part of equitable jurisprudence more bene- 
 ficial, and probably none of more ancient date, than its 
 jurisdiction to give relief in circumstances of fraud. In 
 the early days of the Court of Chancery it would seem 
 that no cause more frequently induced suitors to seek its
 
 CLASSIFICATION OF FItAUDS. 135 
 
 assistance than the fact that it relieved against many trans- 
 actions which would not have been deemed fraudulent in 
 the Courts of Common Law. 
 
 It has never been possible to draw a precise line between Fraud at 
 those cases in which common law would give complete equity "^ 
 relief and those in which it would be necessary to resort 
 to equity. The broad outline of the distinction may 
 be thus expressed : In order to constitute fraud at 
 common law, it is not enough to show that fraud in the 
 sense of misrepresentation and undue advantage of the 
 position of the parties said to be imposed upon has been 
 committed, but the extent of the fraud must be broughti 
 home to the party to the action who is charged with it. 
 A Court of equity will take into account all the circum- 
 stances of the case, — not only the act and intention of the 
 party, but the circumstances imder which the act was 
 done, the position of the party who is said to be imposed 
 upon, his being inops consilli, his being in a state of 
 bodily and therefore mental weakness, and so on. Non 
 constat that these are sufficient to constitute legal 
 fraud (a). Since the Judicature Act, 1873 (/>), it has 
 become unnecessary to enter into this question. 
 
 Neither is it possible to formulate any definition of Fraud not 
 fraud, as that term is understood in Courts of equity, since define L 
 judges have of set purpose avoided hampering themselves 
 by laying down in general terms what shall constitute 
 fraud. It has been said that "Fraud is infinite; and 
 were a Court of equity once to lay down rules how far 
 they would go, and no farther, in extending their relief 
 against it, or to define strictly the species or evidence of it, 
 the jurisdiction would be cramped and perpetually eluded 
 by new schemes which the fertility of man's invention 
 would contrive " (c). 
 
 In the absence of any authoritative definition recognised 
 
 (rt) Stewart v. G. W. R. Co., 2 Dr. {c) Parke's Hist, of Chanc, p. 
 
 & Sm. 438. 508 ; Story, 186 ; Mortlock v. BaUer, 
 
 (b) 36 & 37 Vict. c. 66. 10 Ves. 292, 306.
 
 136 DISTINCTION BETWEEN LAW AND EQUITY. 
 
 in English equity, little purpose can be served by quoting 
 from foreign jurists attempted definitions, which usually 
 contain terras as much requiring explanation as the term 
 purporting to be defined. It is by a consideration 
 of the various classes of cases in which relief has been 
 afforded, and by this alone, that we can arrive at a prac- 
 tical idea of the character of this branch of the jurisdic- 
 tion. In this the memory will as usual be much assisted 
 by a classification of the cases. 
 In the leading case of 
 
 CHESTERFIELD v. JANSSEN 
 
 [2 Ves. Sr. 125 ; 1 W. & T. L. C. 592] 
 
 Lord Lord Hardwicke enumerated the different species of fraud 
 wicke's which Sufficed to induce the interference of equity to the 
 ciassifica- following effect :— 
 
 1. Actual fraud or dolus mains ; fraud arising from facts 
 and circumstances of imposition. 
 
 2. Fraud apparent from the intrinsic nature and subject 
 of the bargain itself; a class comprising inequitable and 
 unconscientious bargains generally. 
 
 8. Fraud which may be presumed from the circum- 
 stances and condition of the parties to the transaction. 
 
 4. Fraud which is so considered from circumstances of 
 imposition on other persons not parties to the transaction. 
 
 5. Fraud which is imputed in cases of catching bar- 
 gains with heirs, reversioners, or expectants in the life of 
 the fathers, &c. ; a class of cases usually compounded of 
 all or several of the other species of fraud, since in them 
 there is generally either actual deception, weakness on one 
 side and extortion on the other, or are unconscionable con- 
 ditions and some deceit and illusion on other persons not 
 privy to the agi'eement, such as the father or ancestor. 
 
 The last of these divisions is admittedly compounded of 
 the others, and it will simplify the arrangement for our 
 present purpose to treat the cases which would fall within 
 it under the several headings to which they may be
 
 CLASSIFICATION OF FRAUDS. 1,S7 
 
 respectively referred. Moreover, the tliird class of fraiuls 
 here specified seems rather to be a subdivision of the 
 second than a distinct and correlative class. We shall 
 therefore take as the second division, inequitable and 
 unconscientious transactions generally; of these, some 
 being deemed fraudulent on account of their intrinsic 
 nature or subject-matter ; others, on account of the peculiar 
 circumstances or condition of the parties. 
 
 Again, the fourth class comprises two species of trans- 
 actions so distinct as to warrant the consideration of each 
 as correlative with the other main divisions. Some 
 transactions are deemed fraudulent as being inconsis- 
 tent with the general policy of the law ; others from 
 their tendency to unfairly compromise the private rights 
 of individuals not parties thereto. These we shall sepa- 
 rately consider. 
 
 We are accordingly left with four leadhig divisions, Division 
 
 under one or other of which all the various transactions "^*!^®, 
 
 siibject. 
 
 regarded in equity as fraudulent may be classed. It will 
 be observed that this classification does not expressly 
 recognise the distinction often taken between actual and 
 constructive fraud ; but it will be found tha.t those trans- 
 actions which have been treated as constructively fraudu- 
 lent are fully comprised in and will fall under one or other 
 of the three last divisions. Constructive frauds, which are Construc- 
 so called from their infringing public policy or some *^^® , 
 
 ,^1 ooi^ 1 J frauds. 
 
 artificial policy of the law, are indeed markedly dis- 
 tinguished from frauds which are so esteemed from the 
 proved or presumed covinous intention of the parties ; 
 but the other transactions which have been styled con- 
 structive frauds, namely frauds arising from some fiduciary 
 relation between parties and frauds so considered be- 
 cause of their injurious effect on the private rights of 
 third persons, differ from actual frauds rather in respect of 
 the evidence by which the fraud is proved than in any 
 substantive characteristic of the fraud itself; and at any 
 rate the distinction is often so fine as to be, in our view, a
 
 138 FRAUD. 
 
 liiiuhaiico rather than a help to a clear concej)tion of the 
 subject. 
 
 The entire division of the subject will then be as 
 follows : — 
 
 I. Actual Fraud (Dolus Malus). 
 
 1. Arisin<T from wronoful acts. 
 
 2. Arising from wrongful omissions. 
 
 IT. Inequitable and unconscientious transactions. 
 
 1. Fraud presumed from the character or subject- 
 
 matter of the transactions. 
 
 2. Fraud presumed from the circumstances or 
 
 condition of the parties. 
 
 (1.) Contracts with persons under duress, 
 lunatics, imbeciles, infants, &c. 
 Contracts between persons in fiduciary 
 relations. 
 (2.) Gifts between parties in unequal 
 positions. 
 
 III. Frauds so considered on grounds of public policy. 
 (1.) As to marriage. 
 
 (2.) Restraint on trade. 
 (3.) Sale of offices, tS:c. 
 (4.) Champerty. 
 
 IV. Frauds on the private rights of third persons. 
 
 (1.) Fraudulent misrepresentations and concealments, 
 (2.) Frauds on powers. 
 
 I. Actual Fraud (Dolus Malus), arising from Facts and 
 Ci rcumstcuices of Imposition. 
 
 Actual Fraud itself being undefinable it is useless to attempt 
 
 ImpliHi- ^" define actual fraud ; and one does not gather much infor- 
 tion. raation from being told that " actual fraud is something .... 
 
 which the party must have known to be a positive 
 
 fraud" {d). 
 
 [d) Smith's Manual of Equity, GG ; Snell, p. 449.
 
 ACTUAL FRAUD. 139 
 
 Tlie term actual fraud as here used indicates those 
 frauds in which an attempt to impose upon the aggrieved 
 party by some wrongful act or omission is expressly proved. Expresnly 
 We shall distinguish frauds arising from wrongful acts P"^"^®^ • 
 from those arising from wrongful omissions. 
 
 1. Actual Fraud arising from Wrongful Acts. 
 
 The largest class of transactions falling under this head Suggestio 
 is that in which the fraud consists in active misrepresenta- 
 tion, or suggestio falsi. 
 
 In the case of 
 
 ATTWOOD V. SMALL 
 
 [6 CI. & F. 232, 4i4] 
 
 Lord Brougham gave expression to three rules respect- RuIch in 
 ing the degree of misrepresentatioii which would justify s^^aiL 
 the rescission of a contract in equity : — 
 
 1 . The representation must have been contrary to fact. 
 
 2. The party making it must have known it to be con- 
 
 trary to fact. 
 
 3. It must have given rise to the contract {dans locum 
 
 contractui). 
 
 The first of these rules needs but little comment, 
 since it is but a bare definition of the most essential Represen- 
 element of misrepresentation — its falsity. It is only must be 
 necessary to point out the distinction between a mis- ^^^®®- 
 representation as to a fact and a mere expression of Expres- 
 opinion. A- representation which amounts only to a state- q^q'Io^^ 
 ment of opinion, judgment, probability, or expectation, or distin- 
 is merely a conjectural or exaggerated statement, is of no ^ 
 effect, for a man is not justified in placing reliance on 
 it (fi). This includes language of puffing or commendation, 
 commonly resorted to by vendors, on which purclrasers are 
 not presumed to place reliance (/). 
 
 The second rule is subject to some exceptions. Thus, Reckless 
 
 (c) Kerr on Fraud, 39 ; Haycraft 134. 
 V. Creasy, 2 East, 92 ; Jennings v. (/) Fenton v, JJroxcne, 14 Ves. 
 
 Broughton, 5 De G. M. & G. 126, 144.
 
 140 FRAUD. 
 
 state- though a person may not know his statements to be false, 
 
 or neg- this ignorance will not protect him if he has been guilty 
 
 hgent Qf- recklessness in stating that to be a fact as to which he 
 Ignorance. _ ^ 
 
 had no knowledge ; or if he has been guilty of negligence, 
 and is thus ignorant of that which he would have known 
 if he had rightly discharged his duty. 
 
 That statements recklessly made in ignorance may 
 
 have the same consequences as wilful deception is seen 
 
 from Reese liiver, cC'C, Co. v. Smith (fj), and Oiveyi v. 
 
 Homan (h). Negligent ignorance is illustrated by Ravj' 
 
 this V. Wickham (i), Burroives v. Lock {k), and Slim v. 
 
 Croucher (I). 
 
 Represen- It would thus be more strictly accurate to say that a 
 
 muston representation false in fact, but which the person making 
 
 reasonable it honestly and upon reasonable grounds believes to be 
 
 grounds be .,, • ^ i ^ n ^ 
 
 believed to true, Will not, independently ot a duty cast on him to 
 be true. know the truth, entitle the party misled to impeach the 
 transaction as fraudulent (m). Such misrepresentations 
 may indeed give a title to relief on the ground of mistake, 
 as to which see infra, p. 184, et seq. 
 Must be Thirdly, the misrepresentation must have given rise to 
 
 ro)UractuT *^® coiitract ; or, in somewhat more general terms, misre- 
 i.e.oia presentation in order to justify the rescission of a con- 
 fact, tract must be as to some material fact constituting an 
 inducement or motive to the act or omission of the 
 other party {n). This rule excludes cases in which 
 the misrepresentation only extends to some unim- 
 portant detail, or to something merely collateral to the 
 Must have contract. And it follows from it, that misrepresentation 
 
 in fact -g Qf j^Q effect unless it has in fact misled the person com- 
 
 misled the ... . . 
 
 party. plaining of it. If he knows it to be false it cannot have 
 
 influenced his conduct (o). It does not indeed suffice for 
 
 (g) L. R. 4 H. L. 64, 79. 121, 134. 
 
 (A) 4 H.L. 997, 1035. («) Story, 195; Puhford v. 
 
 ((■) 3 De G. & J. 304, 313. Richards, 17 Beav. 87, 96. 
 
 {k) 10 Ves. 470. (o) Nelson v. 6'tocte-, 4 De G. & 
 
 (Z) 1 De G. F. & J. 518, 525. J. 458. 
 
 (?«) Mercwetfter v. SMw, 2 Cox,
 
 ACTUAL FRAUD. 141 
 
 the defendant to say that the plaintiff had the moans of 
 knowledge within his reach, and that by inquiry he might 
 have ascertained the truth; for "no man can complain 
 that another has too implicitly relied on the truth of what 
 he has himself stated " (p). If, however, having such means 
 of knowledge, the plaintiff has used them, and having 
 made inquiries he eventually acts on his own judgment, 
 he cannot complain of the misrepresentation {q). 
 
 Notwithstanding, again, that injury arises from mis- The injury 
 representation, there will be no case for relief if the injury |f "j^^^g^^Qt^ 
 be but a remote consequence of the misrepresentation (v). con- 
 
 The result of the cases has been thus summed up : — - thereof!^ 
 " A contract is voidable at the option of a party who has Summary, 
 been induced to enter into it by a statement contrary to 
 the fact made by the other party without reasonable 
 grounds for believing it; though he does in fact be- 
 lieve it." 
 
 " A contract is not voidable on the ground of misrepre- 
 sentation, if the party seeking to set it aside has made 
 independent inquiries in the matter of the representation 
 and acted on his own judgment" (s). 
 
 Another class of cases very similar to those considered Active 
 under the head of misrepresentation is where the fraud '^o^^f'^^' 
 
 ^ . ment. 
 
 consists in what has been called " active concealment; " as 
 where a person uses some contrivance to hide a defect of 
 something offered for sale. In every such contrivance 
 there is fraud (i^), provided, as in the case of misrepresenta- 
 tion, that the concealment has been of some material fact, 
 and is dans locum contractui- 
 
 2. Actual Fraud arising from Wrongful Omission. 
 
 Under this head fall those cases in which fraud is im- Suppressio 
 puted from the circumstance of a wrongful though passive ^^''*' 
 
 (p) Reynell v. Sprt/e, 1 De G. M. (r) Barry v. Crosl-oj, 2 J. & 
 
 & G. 656, 710 ; Central Raihvaij Co., H. 1. 
 
 tt-c, V. Kisch, 2 L. R. H. L. 99, 120. (s) Pollock, Contracts, ^j. -101, 
 
 (5) Jenniivjs v. Broughton, 5 Do 2nd edit. 
 
 G. M. & G. 126, 140 ; Dijcr v. Har- {t) Hill v. Grcuj, 1 Stark, 434. 
 grave, 10 Ves. 505.
 
 142 FRAUD. 
 
 concealment, or siq^i^'^'cssio veri. In certain circumstcxnces 
 silence may be as fraudulent and fatal as falsehood. 
 
 The first and third of the rules ajDplied to misrepresen- 
 tation in Aitwood v. Small (ii), apply equally, mtdatis 
 onntandis, to passive concealment. It must relate to a 
 material fact, and must be instrumental in bringing 
 about the contract. 
 
 But there is this further restriction, that silence will not 
 
 amount to fraud unless the fact suppressed is one which 
 
 the party concealing it is under some legal or equitable 
 
 obligation to disclose. 
 
 Fact sup- If parties are dealing at arm's length, either may avail 
 
 musrbo himself of his sujDerior knoAvledge without being required 
 
 one in to disclosc it to the other ; the vendor may have ascertained 
 
 confidence some defect, for instance, the unproductiveness of the land 
 
 is rejiosed. ^^ ^ farm which he is selling ; or the purchaser may have 
 
 information of something which confers on the land 
 
 exceptional value, such as a mineral deposit under it ; but 
 
 neither is required to communicate such knowledge (x). 
 
 Such cases are very different from those already referred 
 
 to, in which some actual artifice or contrivance is resorted 
 
 to to conceal a defect. 
 
 £".5^. defects But if a vendor conceals a material fact as to which, from 
 
 of title. ^YiQ nature of the case, confidence is reposed in him, the 
 
 transaction may be set aside on the mere ground of his 
 
 silence. Thus the concealment of an incumbrance on an 
 
 estate (y), or of the death of a person on whom the title 
 
 depends (z), or of other defects of title, will invalidate a 
 
 transaction. 
 
 Patent The distinction has been expressed as being between 
 
 defects^'^* patent defects and latent defects. As to patent defects, or 
 
 such defects as may be discovered by the exercise of 
 
 ordinary vigilance, there is no duty to disclose them ; each 
 
 party may be reasonably required to rely on his own judg- 
 
 {u) Sup., p. 139. ('/) Edwards V. AI'Lccnj, 2 Swanst. 
 
 (x) Fox V. Mackreth, 2 Bro. C. C. 2S7. 
 
 420; Turner v. Harvey, Jac. 169, (:) EUardw Llandaf,lBA. kBe. 
 
 178. 241.
 
 ACTUAL FRAUD. 143 
 
 ment. Latent defects, or such as one party lias no means 
 of discovering save through the other, must be disclosed. 
 
 These rules are generally applicable, but certain contracts Specialij^ 
 are, from their nature, more narroAvly protected from the contracts, 
 consequences of concealment. 
 
 Thus in contracts of insurance, it is considered that as Insurance, 
 the insurer necessarily reposes confidence in the insured as 
 to all facts and circumstances which are j^eculiarly within 
 his own knowledge ; and in marine insurance especially, 
 not only misrepresentation but concealment of a material 
 fact which is not a matter of general knoAvledge, though 
 Avithout any fraudulent intention, vitiates the policy ; that is, 
 makes it voidable at the underwriter's election (a) ; and the 
 obligation to make full disclosure extends not only to facts 
 actually known to the assured, but to facts which he ought 
 to and with proper diligence would have known (b). 
 Apart from express provisions of policies, it seems that the 
 rule is not so strictly applied in cases of life and fire 
 insurance (c). 
 
 In the contract of suretyship, also, the duty of making Surety- 
 full disclosure is strictly insisted on (d). ^ "P" 
 
 On the same principle, in family settlements, in which Family 
 parties may be expected to deal in a spirit of mutual trust ^gnts' 
 and confidence, full communication must be made; and if 
 it is not, though there may have been no fraudulent motive 
 or intent, the transaction is liable to be set aside (e). 
 
 Where also a person makes a composition with his Composi- 
 creditors he must deal openly and equally with them all. ^°^ 
 If by misrepresentation or concealment he creates a false 
 impression as to the amount of his property, the transaction 
 cannot be sustained (/). Neither is it lawful for the debtor 
 to permit or for any creditor to obtain any secret or undue 
 
 («) lonkles v. Pender, 9 L. E. 868. 
 Q. B. 531, 537 ; Morrison v. Unirer- {d) See infra, pp. 318, et scq. 
 
 sal, &€., Co., 8 L. R. Ex. 197, 205. (t) Gordon v. G., 3 Swanst. 400, 
 
 (6) Proudfoot V. Montejiore, 2 473, 477 ; Fane v. F., 20 Eq. 698. 
 L. R. Q. B. 511. (/) Vine v. Mitchell, 1 Mood. & 
 
 (c) Wkeeltonv.Hardisty,8T<:,.&'B. R. 337. 
 232 ; Sillem v. Thornton, 3 E. & B.
 
 144 
 
 FRxVUD. 
 
 Ratifica- 
 tion. 
 
 advantage. Equality between all the creditors is the very 
 basis of composition deeds, and if there is any secret 
 arrangement by ^vhich the concurrence of some or one of 
 them is obtained by means of any exceptional concession, 
 or if for any reason preference is shown, such arrangements 
 arc utterly void ; they cannot be enforced even against the 
 assenting debtor (//), and any money paid under them may 
 be recovered back (h). 
 
 It must be remembered that in all cases of actual fraud, 
 the defrauded party may lose all right to relief by ratifica- 
 tion of the fraudulent act ; and this may be effected by 
 continuing to deal with the person who has defrauded him, 
 as well as by a formal release. But it is evident that no 
 acts, however formal, can amount to such a ratification 
 unless the party does them after acquiring full knowledge 
 of the fraud and its natural consequences (/). 
 
 Sub-_ 
 division. 
 
 Catcliing 
 bargains 
 with heirs. 
 
 II. Inequitable and Unconscientious Transactions. 
 
 This is necessarily a very wide and somewhat indeter- 
 minate class, which is scarcely susceptible of systematic 
 analysis. We may, however, approach somewhat nearer to 
 this than we should by a mere enumeration of cases, if wc 
 separate those transactions in which the chief ground for 
 suspecting the fraud consists in the character or peculiar 
 subject-matter of the bargain in question, from those in 
 which the presumption of fraud arises more especially from 
 the peculiar circumstances or relations of the parties con- 
 cerned. 
 
 1. Where fraud is presumed from the nature of the 
 transaction. 
 
 Under this heading, one of the most important classes 
 consists of transactions with expectant heirs and reversioners 
 
 (rj) Jachnan v. Mitchell, 13 Ves. (/) V;<jcrs v. Pil:e, S CI. & F. 502, 
 
 381. 630. 
 
 (/() Mure V. Snndford, 1 Giff. 288.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 145 
 
 respecting their future interests. These dealings do, indeed, Complex 
 involve the consideration of fraud on tliird persons, namely, „f thosJ^'^ 
 the parents or predecessors in title of the heirs or rever- frauds, 
 sioners in question ; and at the same time a frequent 
 ingredient in the fraud imputed is the suspicion of duress 
 arising from the distress of the vendor, and the consequent 
 unequal position of the parties. For these reasons Lord 
 Hardwicke, as we have seen (k), included these bargains in 
 a separate class compounded of the others. Nevertheless, 
 for simplicity's sake, we have preferred rather to treat of 
 them here, in consideration that the leading element of 
 fraud in them is the suspicion attaching to the very nature 
 of the bargains themselves. 
 
 In these cases the question is usually raised as to the Effect of 
 effect of inadequacy of price. Now it is well established quacy of 
 that in dealings with interests in possession mere con.sidera- 
 inadequacy of price is not, generally speaking, of itself 
 a sufficient ground for setting aside a purchase (I). 
 The inadequacy may, indeed, be so gross as to amount 
 to clear evidence of actual fraud, but to this end it 
 must be " so stronsf, Sfross, and manifest that it must be 
 impossible to state it to a man of common sense without 
 producing an exclamation at the inequality of it " (m). 
 
 A striking illustration of this is supplied by the case of Harrison 
 Harrison v. Guest (n), where an illiterate, bedridden old 
 man 71 years of age conveyed away without professional 
 advice property of the value of £400 for the consideration 
 of board and lodging during his life. He lived only six 
 weeks afterwards ; yet the inadequacy of consideration 
 was not deemed sufficient to warrant the disturbance of 
 the transaction. 
 
 But of dealings with reversions and expectancies equity Seais as to 
 
 rcvGrsioTis 
 
 is much more suspicious. Previously to the statute before 31 
 l^rcsently to be mentioned, fraud was in these cases ^^^^- ^- ^ 
 
 (I) p. 136. (Sc.) 6. 
 
 (0 Oivyrhne v. Hcaton, 1 Bro. C. C. {m) Gwynne v. Ileaton., supra. 
 
 1, 8 ; Tennent v. T., 2 L. R. H. L. [n) 6 De G. M. & G. 424.
 
 146 FRAUD. 
 
 commonly presumed from inaiUH|iiacy of consideration (o) ; 
 and such transactions were frequently set aside on this 
 ground without proof of any other ingredients of fraud, 
 such as misrepresentation, undue influence, &c. (p). And 
 the fact that the expectant was of mature age, or well 
 understood the nature and extent of the transaction, was 
 immaterial (q). From the fact of a person selling such an 
 interest, the Court presumed that he was under pecuniary 
 pressure ; and it was not incumbent on him to prove that 
 it was so. The onus was on the purchaser to show that 
 the transaction was just and reasonable (r). 
 Under 31 By the Sales of Reversions Act (s), however, it is enacted 
 that " no purchase made bond fide, and without fraud or 
 unfair dealing, of any reversionary interest in real or per- 
 sonal estate, shall hereafter be opened or set aside merely 
 on ground of undervalue." This Act came into operation 
 on the 1st of January, 1868 ; but a series of decisions has 
 clearly shown that it has not affected the jurisdiction of 
 equity in cases of unconscientious purchases of rever- 
 sions (t). In the latter case Lord Hatherley said : " The 
 legislature has not repealed the doctrines of this Court by 
 which protection is thrown around unwary young men in 
 the hands of unscrupulous persons ready to take advantage 
 of tlieir necessities. I conceive the reason why the law as 
 to sales of reversions was altered to be that the doctrines 
 of this Court had been carried to an extravagant lensrth on 
 that subject " (u). 
 
 The effect of the statute seems to be that in future the 
 inadequacy of consideration must be so gross as to amount 
 to evidence of fraud; but it has been held that the burden 
 
 (o) Peacoch v. Erans, 16 Ves. 512. (r) Gowland v. De Faria, 17 Ves. 
 
 (p) Curwyn v. Miller, 3 P. Wms. 20 ; Lord v. Jeffkins, 35 Beav. 79. 
 
 293 n. ; Aylesford v. Morris, 8 Ch. {s) 31 Vict. c. 4. 
 
 484 ; Freeman v. Bishop, Barn. Ch. (t) Miller v. Cool; 10 Eq. 641 ; 
 
 R. 15 ; 2 Atk. 39. Tyler v. Yates, 11 Eq. 265 ; 6 Ch. 
 
 iq) Fortmore v. Taylor, 4 Sim. 665. 
 
 182 ; Bromley v. Smith, 26 Beav. [u) See also Aylesford v. Morris, 
 
 644, 
 
 snp.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 147 
 
 of proof is still on the purchaser (x), the circumstances of 
 the case still rendering the Court more suspicious respect- 
 ing such bargains than in case of a sale of an interest in 
 possession. 
 
 Neither before nor since the statute has there been or 
 is there any precise rule as to what difference between the 
 real value and the price paid constitutes inadequacy. In 
 Eoraan law it was considered that anything above half the 
 value was a sufficient price to sustain the transaction ; 
 but in English equity it is a question of which the Court 
 decides on the facts of the case (t/). 
 
 In ascertaining the value of a reversion, the Court is Rever- 
 guided by the evidence as to the market-price at the time valued °^ 
 of the transaction, rather than by the calculations of 
 actuaries (z). The question is not affected by facts subse- 
 quent to the contract. Whether the reversion falls in 
 unexpectedly soon or is unexpectedly long delayed, though 
 of course greatly affecting its actual value in the result, 
 is not material to the inquiry as to what was an ade- 
 quate value according to everybody's knowledge at the 
 time (a). 
 
 Where a sale of a reversionary interest takes place by Sale of 
 public auction, the nature of the case supplies strong ^y auction. 
 evidence that the market price has been paid (5). But 
 care will be taken to ascertain that the auction has been 
 fairly conducted. Thus if the purchaser knows that the 
 vendor is selling under pressure, and without the usual 
 precautions against a sacrifice of the property, it will still 
 be incumbent on him to prove that the price given was 
 a fair one (c). 
 
 Post obit bonds, or bonds conditioned for payment of a Post obits. 
 sum of money on the death of a person from whom the 
 obligor has expectations, are on similar principles regarded 
 
 [x) O'Eorl-e v. Bolingbroke, 2 App. (2) Potts v. Curtis, You. 543 ; 
 
 C. 814. Wardle v. Carter, 7 Sim. 490. 
 
 (y) Baldwin v. Rochford, 2 "Ves. («) Gouiand v. Be Faria, sup. 
 
 sr. 517, cited ; Nott v. Hill, 2 Ch. [b] Shelly v. Nash, 3 Madd. 232. 
 
 Ca. 121. (c) Fox V. Wright, 6 Madd. 111. 
 
 L 2
 
 148 
 
 FRAUD. 
 
 Fraudu- 
 lent pre- 
 tence of 
 trading'. 
 
 Terms of 
 relief. 
 
 with suspicion in equity, and if of an unconscionable 
 character will be suffered only to stand as security for the 
 actual sum lout thereon, with proper interest (d). And 
 the same applies to other securities of a kindred 
 nature. 
 
 The ingenuity of money-lenders has often led them to 
 disguise usurious loans to expectant heirs under the mask 
 of trading, goods being supplied merely for the purpose of 
 being at once re-sold. Such transactions are, however, 
 within the reach of Courts of equity, and will be set aside 
 upon payment of what the goods actually produced upon 
 a re-sale, with interest (e). 
 
 A leading case in dealings of this kind is King v. Hamlet 
 (/), where Lord Brougham stated that relief in these cases 
 should be refused if either the father or other person stand- 
 ing in loco parentis to the defrauded person was aware of 
 and did not oppose the transaction, or if the person him- 
 self so acted upon the bargain as to alter the situation of the 
 other party or of his property, after the pressure which 
 induced it had ceased. But these rules have been ques- 
 tioned by Lord St. Leonards ([/) ; and it seems that the 
 acquiescence of a father will have no more effect than to 
 lead more or less strongly, according to the facts of the 
 case, to the inference that a bargain so authorised was 
 fair and innocent (A). The repeal of the usury laws 
 does not affect the jurisdiction of the Court in these 
 cases (i). 
 
 Li all such cases as we are considering equity proceeds 
 on the maxim that " He who seeks equity must do equity," 
 and only gi'ants relief on the terms of the plaintiff paying 
 the sum actually advanced with interest and any sums 
 
 (d) Curling v. Town send, 19 Ves. 
 628 ; Benyon v. Fitch, 35 Beav. 570. 
 
 (e) Waller v. Dult, 1 Ch. Ca. 276, 
 1 Dick, 8 ; Barker v. Vansommcr, 1 
 Bro. C. C. 149. 
 
 (/) 2 Mv. & K. 456 ; 3 CI. & F. 
 218. 
 
 (7) Sued. V. & P. p. 316, 11th ed. 
 
 (/O Talbot V. i^tainforth, 1 J. & H. 
 484, 502. 
 
 (/) O'Eorl-e v. Bolinfjhroke, 2 Apji. 
 C. 814 ; A i/lesfr/i-d v. i¥w/.s, 8 Ch. 
 484.
 
 INEQUITABLE AND UNCONSCIENTIOUS TliANSACTIONS. 1 tO 
 
 reasonably expended by the defendant in improvements, 
 and of proper costs (k). Only simple interest at 5 per 
 cent, is allowed (/), and a defendant will disentitle him- 
 self to costs by any improper conduct, such as refusal 
 to accept a full sum in discharge before action 
 brought (m). 
 
 Transactions originally impeachable may, moreover, be Confirma- 
 rendered valid by subsequent confirmation or acquies- acquies- 
 cence (n). But such confirmation or acquiescence is only cence. 
 effectual when it has taken place after a complete cessa- 
 tion of the original pressure (o), and with a full cognizance 
 of the right to rehef. And a transaction which is not 
 merely voidable, but absolutely void, as were usurious 
 contracts before 17 & 18 Vict. c. 90, and as are marriage 
 brokage contracts still, cannot be set up by any subsequent 
 confirmation. 
 
 Family arrangements do not come within the restrictions Family 
 respecting dealings with reversionary interests, unless, of '^'''^'^^^'®" 
 course, induced by undue influence of a parent over a excepted, 
 child (p) ; nor do settlements made in consideration of 
 natural affection {q). 
 
 2. The second and larger class of inequitable and uncon- Fraud 
 scientious transactions comprises those in which the chief, P^'®™™^*^^ 
 or it may be the sole element of fraud, consists in the position of 
 j)eculiar circumstances or relations of the parties con- '^P^'^^*^"- 
 cerned. 
 
 Under this head we have to deal with two very distinct Contracts 
 classes of transactions, namely, contracts and donations or ^^'^ S^fts. 
 gifts, which, though to some extent subject to the same 
 principles, are sufficiently contrasted to require separate 
 consideration. And, first, of contracts. 
 
 (k) Murray v. Palmer, 2 S. & L. (n) Cole v. Gibbons, 3 P. Wms. 
 
 474, 490 ; Salter v. JJradshaw, 26 289 ; Slbberimj v. Balcarras, 3 De 
 
 Beav. 161, 165. G. & Sm. 73o. 
 
 (I) Gowland v. Dc Farla, 17 Ves. (o) Gowland v. De Faria, sup. 
 
 20 ; Miller v. Cool; 10 E(). 647. {p) Twcdddl v. T., T. & R. 1, 13 ; 
 
 (m) Bemjon v. Fitch, 35 Beav. 570, inf. p. 155. 
 578. {fi) Hhafto V. Adamn, 4 Giff. 492.
 
 150 FIIAUD. 
 
 (1.) ContracU. 
 Contract The vcry foundation of contract is consent or agree- 
 co?iseiiT nient. There can be no true consent or agreement 
 anil without a capacity to understand the terms of the 
 
 freedom. \ ^ ,. ^ . . i- j.-u 
 
 agreement, and also ireedom to accept or to retuse tne 
 terms proposed. 
 
 If, then, a person induces another who lacks either this 
 capacity or this freedom, to enter into an apparent contract, 
 however it may be fenced by formal observances, equity 
 will not recognise the transaction ; but, deeming it fraudu- 
 lent, will generally grant relief against it at the suit of the 
 party imposed upon. 
 Contracts [ Thus from their want of a capacity to understand 
 lunatics proposals Submitted to them, the contracts of idiots and 
 and idiots; j^^^rj^^icg^ and other persons iton compotes mientis, are gene- 
 rally deemed invalid in Courts of equity. In order to 
 sustain a contract entered into with a lunatic, the person 
 supporting it must be prepared to show the most perfect 
 good faith, and that it was for the benefit of the lunatic. 
 Equity will not interfere where the contract was entered 
 into without knowledge of the incapacity and it is evident 
 that no advantage has been taken of the weaker party (r) ; 
 and it will follow the law in sustaining contracts for 
 providing the lunatic with necessaries (s). It may be that 
 applying the strict test of jurisprudence such contracts 
 would be equally void with others in which there has been 
 palpable imposition ; but the practical contrast is suffi- 
 ciently apparent. 
 ]^'t^i ii. Equity will, moreover, often interfere where the person 
 
 persons; imposed upon has not suffered from such aberration of 
 mind as amounts to insanity, but has nevertheless from 
 old age or other infirmity been so deficient in wit as to be 
 an easy subject of imposition and undue solicitation or in- 
 fluence. The burden of proving fairness of dealing with 
 such people is on him who ventures on it, and if he fails 
 
 ()•) Manhy v. Bewicke, 3 K. & J. (s) Nelson v. Duncoinbe, 9 Beav. 
 
 342. 211.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 151 
 
 the transaction will be set aside, and any advantage made 
 thereout must be disgorged (t). 
 
 iii. Drunkenness will in some cases invalidate a contract with 
 entered into during its influence. If, in the first place, a personT- 
 person has designedly contrived to draw another into 
 intoxication for the purpose of imposing upon him while 
 in that state, equity will interfere to prevent the enjoy- 
 ment of the advantage thus fraudulently conceived. But 
 in the absence of any such premeditated designs, equity 
 will only interfere in cases where the drunkenness of one 
 of the parties has been so excessive as to practically deprive 
 him of all reason and understanding. In cases of slighter 
 intoxication it will refuse to interfere either to enforce or 
 to rescind the contract, being equally unwilling to assist . 
 the one person who has immorally incapacitated him- 
 self, and the other who has immorally taken advantage 
 of the incapacity (u). At law it has been held that a 
 contract made under excessive drunkenness is voidable 
 but not void, and is therefore capable of ratification by the 
 person when sober (x). 
 
 iv. In the cases above referred to the absence of the with 
 capacity to understand the proposal was the chief ground of un^fgr"^ 
 interference. The absence of freedom to accept or reject duress, 
 the proposal is of like effect. The general test of what 
 amounts to such duress or undue influence as to invalidate 
 a contract is the question whether the party was or was 
 not a free agent. Though there may not be actual com- 
 pulsion or duress, if a person is under the influence of 
 extreme terror, or of extreme necessity, and any advantage 
 is taken of his position, equity will grant him relief (y). 
 A fortiori, if the person is actually under imprisonment 
 at the time, any dealings with him will be narrowly 
 scrutinised in his favour {z). 
 
 (t) Longmate v. Ledger, 2 Giff. 157, Ex. 1.32. 
 
 164. [y) Evans v. Llewellyn, 1 Cox, 333, 
 
 (m) SeeCooi'ev. Clayworth,18Yeis. 340; Hmvesv. Wyatt, 3 Bro. C. C. 
 
 12 ; Johnson v. Medlicott, 3 P. Wms. 156, 158 ; Boyse v. Rosshorough, 6 
 
 130, cited note a. H. L. 2, 49. 
 
 (x) Matthews V. Baxter, 8 L. R. (:) Roy v. Beaufort, 2 Atk. 190>
 
 152 FRAUD. 
 
 Infants. V. There is no necessity for discussing at length the 
 
 contracts of infants in a work especially devoted to the 
 exposition of the distinctive doctrines of equity, the law 
 respecting them being now regulated by the Infants' 
 Relief Act, 1874 (a)-, which enacts that thenceforth all 
 contracts " entered into by infants for the repayment of 
 money lent or to be lent, or for goods supplied or to be sup- 
 plied (other than contracts for necessaries), and all accounts 
 stated with infants shall be absolutely void ; provided 
 ahvays that this enactment shall not 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" (6). "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 during infancy, whether there 
 shall or shall not be any new consideration for such promise 
 or ratification after full age " (c). 
 
 Wliere, however, an infant'induces persons to deal with 
 him by falsely representing himself as of full age, he is 
 bound in equity by payments made and acts done at his 
 request and on the faith of such representations, and is 
 liable to restore any advantage he has obtained by such 
 representations to the person from whom he has obtained 
 it (d). The princij)le is that an infant shall not take 
 advantage of his own fraud (e). But in order to its appli- 
 cation, there must have been an actual false representa- 
 tion, not mere dissimulation ; and the party must have 
 been in fact deceived (/). 
 
 It has recently been held that the Infants' Relief 
 Act applies to trading contracts ((j), but it expressly 
 saves all such contracts as were not previously void- 
 
 (a) 37 & 38 Vict. c. 62. (e) Ovei-ton v. Banister, 3 Ha. 503 ; 
 
 lb) s. 1. Clarke v. Coblcy, 2 Cox, 173. 
 
 (c) s. 2. (/) Nelson v. Stocka; 4 De G. 
 
 {d) Pollock Contr. 35, 56, 2nd & J. 458. 
 ed. (y) Exp. Jones, 18 Ch. D. 109.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS, 153 
 
 able at law. The detailed discussion of what contracts 
 were not so voidable is a matter more appropriate to a 
 treatise on law than to one on equity. It suffices here to 
 state that they comprise contracts for necessaries, a term 
 which is interpreted according to the infant's degree and 
 station in life, and contracts in other respects essentially 
 beneficial to the infant, such as contracts of service, and of 
 apprenticeship. The law as to infants' settlements is else- 
 where treated (h). 
 
 vi. Many of the important distinctions between law and Married 
 ■^ ^ . women. 
 
 equity as regards the contracts of married women have 
 been removed by the Married Women's Property Act, 
 1870 (i). This statute, and the principles of equity touch- 
 ing the matters not affected thereby, are fully considered 
 elsewhere (j). 
 
 vii. A somewhat unique exception from the ordinary rules Common 
 applicable to contracts is made in favour of common ' 
 sailors. In consideration of their characteristic careless- 
 ness and improvidence, equity carefully scrutinises any 
 contracts made with them respecting wages or prize money 
 due to them, and often gi'ants relief when it appears that 
 undue advantage has been taken of them (k). 
 
 Hitherto the contracts we have been considering have 
 come under review in connexion with the subject of 
 fraud, on account of some absolute incapacity total or 
 partial in one of the parties ; that is to say, an incapacity 
 not due to the existence of any particular relation between 
 the contracting parties. The fraud imputed in these cases 
 has usually been deemed a species of actual fraud (^). 
 
 viii. But there is another large class of contracts usually Contracts 
 esteemed to come under the head of constructive fraud, ^^^g under 
 in which the incapacity which raises the suspicion of fitluciary 
 fraud is wholly due to a special relation between the 
 parties, such as that of trustee and cestui que trust, or 
 solicitor and client. These cases we have fully considered 
 
 (h) p. 396. (k) How V. Wheldo7i, 2 Yes. sr. 
 
 (i) 33 & 34 Vict. c. 93. 516. 
 
 ij) pp. 354—6. (I) Story, 228—243.
 
 154 
 
 FRAUD. 
 
 t'oiistruc- 
 tivu trusts. 
 
 Voluntary 
 
 gifts. 
 
 What 
 relation 
 raises the 
 presump- 
 tion. 
 
 under the head of constructive trusts. All that was there 
 said might with equal a})propriatencss have been inserted 
 here. 
 
 It is a good illustration of the interdependence of the 
 various branches of equitable jurisprudence that such a 
 complete class should fall so aptly under two distinct 
 headings. Because of its jurisdiction in, and its jealous 
 scrutiny of all matters tainted with fraud, equity has 
 created, for the purpose of securing even justice, an exten- 
 sive class of trusts. Or, viewing the same question from 
 the other side, we may say that in devising a remedy 
 for cases of fraud equity has utilised the principle of 
 trusts, which was originally designed for very different 
 purposes. 
 (2.) Gifts. 
 
 Our next consideration is that of voluntary gifts or 
 donations which are deemed fraudulent through the 
 presumption of undue influence which is raised by the 
 relations between the donor and donee. 
 
 These, again, might well have been dealt with under 
 the heading of constructive trusts, the principles illus- 
 trated by the case of Fox v. Mackreth (m) being precisely 
 analogous to those which now present themselves. Not- 
 withstanding this, we have preferred to consider these 
 cases under the head of fraud. The very separation of 
 things so similar will perhaps serve a good purpose in 
 emphasizing the relation of the various branches of the 
 subject to each other; while any confusion of arrange- 
 ment will be completely avoided by a careful attention to 
 this explanation, and to the reference made under each 
 head to the other. 
 
 The first subject of inquiry respecting voluntary 
 donations induced by fraud is as to what relationship 
 between the parties will raise a presumption of undue 
 influence. 
 
 One of the most frequently cited cases on this subject is 
 
 {m) p. 88.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 155 
 
 HUGUENIN V. BASELEY. 
 
 [14 Yes. 273 ; 2 W. & T. L. C. 547.] 
 
 Here there was a voluntary settlement by a widow 
 upon the defendant, who was a clergyman, and who had 
 been appointed by her as her agent to manage her affairs. 
 On her subsequently marrying, a bill was filed on behalf of 
 herself and her husband praying that the settlement might 
 be set aside, and this relief was granted on the ground 
 that the defendant had exercised undue influence, and 
 abused the confidence reposed in him. 
 
 The first question is, what relationship between a donor 
 and donee is within the principle of this case. 
 
 i. Parent and child. 
 
 Donations from a child to a parent have always been Parent 
 jealously regarded in equity, and of course especially so''' 
 when they take place but a short time after the attain- 
 ment of majority. They will be set aside if it appears 
 that any advantage has been taken of the parental autho- 
 rity (ii) ; but the mere fact of the relationship will not be 
 sufficient ground for interference when the transaction 
 appears to be reasonable and bond fide (o) ; and cb fortiori 
 if it is of the nature of a family arrangement, as to which 
 see p. 182. If there has been undue influence, a volunteer, 
 or a purchaser with notice claiming through the father, is 
 in no better position than the father himself (p). 
 
 In this, as in many other cases, a person standing in Per.sou in 
 loco ixirentis is within the same rules as a parent {q). pf^^cntis 
 The meaning of the expression in loco parentis is suffi- 
 ciently explained elsewhere (r). 
 
 ii. Guardian and ward. 
 
 A gift from a ward to a guardian is always suspected ; Guardian 
 and if made immediately on the ward's attaining his ma- '^"' ^^*' ' 
 jority it is liable to be set aside upon the presumption of 
 
 (n) CocMng v. Pratt, 1 Ves. sr. 2 Atk. 86. 
 400; Wright v. Vanderpl/mk, 2 K. (p) Bainhriyrjc v. Browne, IS Ch. 
 
 & J. 1; 8 De G. M. & G. 1-33 ; D. 188. 
 Turner v. Collins, 7 Cb. 329. (q) Archer v. Hudson, 7 Beav. 
 
 (o) Blackhorn v. Ed<jelcy, 1 P. 551. 
 Wins. GOO, 606; Tcndnl v. ^ndth, (r) pp. 71, 447.
 
 15G FRAUD. 
 
 undue influence (r). Even when a considerable time has 
 elapsed before the gift, if undue influence can be proved, 
 the same relief will bo given (s). A guardian is not 
 suffered to set up his trouble in the execution of the 
 guardianship as a consideration for such a gift (t). The 
 case against the guardian is strengthened if his accounts 
 have not been closed, and the donation takes place while 
 he still retains the ward's property in his hands (u). 
 
 But where the authority and influence of the guardian 
 have ceased, equity will not set aside a reasonable gift 
 made to him (x). 
 
 Following the analogy of the rule which considers persons 
 in loco 'parentis as under the same restrictions as parents, 
 the principle applies as well to a person who has assumed 
 the office and functions of a guardian as to a guardian 
 legally appointed (2/). 
 
 iii. Trustee and cestui que trust. 
 Trustee, Tlie relationship of trustee and cestui que trust is within 
 
 que trust. tli*3 same doctrine as fully with respect to donations as we 
 have seen that it is with respect to contracts {z), and a 
 mortgagee being a trustee for his mortgagor is included {a). 
 iv. Legal adviser and client. 
 Legal A solicitor has alwaj^s been disabled in equity from 
 
 and client, taking any gifts from his client, pending a suit, or at any 
 time while the relationship subsists, beyond his proper 
 remuneration (6) ; and a counsel has been held to be within 
 the same rule (c). 
 
 V. Medical adviser and patient. 
 Doctor and The relation between a doctor and his patient has been 
 pa len . considered sufficient to support a claim for relief against a 
 voluntary gift, on the ground of undue influence {cl). 
 
 (r) Everitt v. E., 10 Eq. 405. [z) pp. 88—100 ; Barrett v. Hart- 
 
 (s) Hylton v. H., 2 Ves. sr. 547, ?cy, 2 Eq. 789. 
 
 549. '(rt) Ihkl 
 
 [t) Ibid. (h) Tompson v. Jndyc, 3 Drew. 
 
 (u) Picrse v. Waring, 1 P. Wms. 306 ; Monjan v.Minrt/, 6Ch. I).C38. 
 
 121 n. ; 2 Ves. sr. 549, cited. ('•) Broun v. Kcuncdij, 33 Beav. 
 
 (.0) Hatch V. //., 9 Ves. 296. 133 ; 4 De G. J. & S. 217. 
 
 hj) Griffin V. De Veullc, 1 P. Wms. (d) Bent v. Bennett, 4 My. & Cr. 
 
 131 n. ; 14 Ves. 279, cited. 269.
 
 I^'EQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 157 
 
 vi. Religious advisers. 
 
 The above cited case of Huguenin v. Baseley (e) is Tiitst and 
 sufficient authority to show that a clergyman or other re- ^^''"^ '^" " 
 ligious adviser is within the principle under considera- 
 tion. 
 
 vii. Other relations of confidence. 
 
 The jurisdiction of equity in respect of donations under Fidndary 
 undue influence is by no means confined to cases in whicli generally, 
 there is some certain and definite relationship such as we 
 have been considering. Any circumstances which give 
 one person the power of exercising pressure on another 
 may suffice to substantiate a claim for equitable relief 
 In fact, just as the Court has refused to define fraud itself, 
 so it has refused to commit itself to an enumeration or 
 description of the persons within the doctrine now in 
 question (/). 
 
 Thus a gift from an engaged lady to her suitor is liable 
 to be carefully scrutinised, and to sustain it the gentleman 
 must be prepared to show that it was made without imdue 
 solicitation or pressure (ff). A professor of spiritualism has 
 also been considered to stand in a position of undue 
 authority with respect to a believer in his art, and a gift 
 made to him has been set aside (h). The same rule has 
 been applied in the case of a person claiming the benefit 
 of a settlement from his deceased wife's sister on his 
 going through the form of marriage with her (/). 
 
 The next question is, what generally amounts to undue What is 
 
 influence ; and this, again, is a matter in which no formal fll^enceT" 
 
 definition can be drawn. It is decided by the Court in 
 
 its discretion on the circumstances of each particular case. 
 
 But there are certain circumstances frequently found in Circum- 
 
 cases of this class which weigh heavily with the Court f^^^^^^- „ 
 
 in the exercise of this discretion, and which serve well the pre- 
 
 smni)tioii. 
 
 (e) Sii}}. p. 155. (/() Lyon v. Ilmne, G Eq. G55. 
 
 (/) Dent V. Bennett, s"p. (i) Coulson v. Allison, 2 De G. F. 
 
 {;/) Pac/e v. Home, 11 Beav. 227 ; & J. 521. 
 Cnrhett V. Brocl; 20 Beav. 524.
 
 158 
 
 FRAUD. 
 
 Absence of 
 indepen- 
 dent 
 advice ; 
 
 false state- 
 ment of 
 considera- 
 tion; 
 
 absence of 
 power of 
 revocation; 
 impro\-i- 
 dence. 
 
 Duress. 
 
 Fraud pre- 
 vails 
 against 
 volunteer 
 claiming 
 through 
 the donee. 
 
 to illustrate the moiU- of reasoniDg on which relief is 
 panted. 
 
 Thu.s the absence of any disinterested or professional 
 advice on the side of the plaintift", especially where there 
 is a confidential relation between the parties, or con- 
 siderable disparity between their powers of judgment and 
 means of knowledge, gives rise to a strong suspicion of 
 fraud (A:). So also a fictitious statement of consideration 
 is a material indication of an undue advantage having 
 been taken (/). The absence of a power of revocation in a 
 voluntary settlement (in), and even the mere improvidence 
 of the transaction (n), are of influence in the same direc- 
 tion. But such circumstances as these will not, in the 
 absence of some such relation of confidence as those above 
 enumerated, always dispense with the necessity of the 
 plaintiff"s explicitly proving the fact of undue influence (o). 
 It at least requires a strong case where no such relation 
 exists to throw upon the donee the burden of proving the 
 innocence of the transaction (j)). 
 
 A gift as well as a contract made under circumstances of 
 duress, such as threats of prosecution or other forms of 
 intimidation, will clearly be set aside (q). 
 
 As a rule, where a gift is tainted with fraud, the trans- 
 action cannot be sustained on behalf of a third person 
 claiming through the donee any more than by the donee 
 himself {/•). But it is otherwise in the case of a bcmdjide 
 purchase from the donee without notice of the fraud. A 
 person so accj^uiring the property having an ec^ual equity 
 with the donor, may, in accordance with the usual principle, 
 shelter himself behind his legal title and possession (s). 
 
 (k) Mhodes V. Bate, 1 Ch. 252 ; 
 Dent V. Bennett, 4 My. & Cr. 269, 
 273. 
 
 (I) ffawes V. WyaU, 3 Bro. C. C. 
 156 ; Sharp v. Leach, 31 Beav. 491. 
 
 (m) Coutts V. Achrorth, 8 Eq. 558. 
 
 (n) Harvey v. Mount, 8 Beav. 439. 
 
 (o) Huntet- V. Atlcins,Z Mv. & K. 
 113; Toler v. T., 31 Beav. 629. 
 
 (p) Beanhind v. Bradley, 2 Sm. 
 
 & G. 339 ; Iloghton v. H., 15 Beav. 
 278, 299. 
 
 (q) Evans v. Lhuellyn, 1 Cox, 
 333, 340 ; Bai/ley v. Williams, 4 Giff. 
 638 ; 1 L. R.H. L. 200. 
 
 ()•) Bridgman v. Green, 2 Ves. sr. 
 627 ; Maitland v. In-ing, 15 Sim. 
 437. 
 
 (s) Blachic v. Clark, 15 Beav. 595 ; 
 Cwhet V. Brock, 20 Beav. 524
 
 FRAUDS ON PUBLIC POLICY. 1 5l» 
 
 The consideration of undue influence employed in ob- Uiulue 
 tainino- testamentary benefits is not within the jurisdiction l"*^"';"?*^ 
 
 o J J in obtain- 
 
 of Courts of equity ; but it may here be mentioned that a i"g ^^iHs. 
 stronger case is required to set aside a will obtained by 
 undue influence than is needed for the avoidance of a gift 
 inter vivos. Thus a solicitor who has himself prepared a 
 will may take a legacy therein, unless there is evidence of 
 mistake, or of some misapprehension caused by him {t). 
 In the absence of similar evidence a legacy to a Roman 
 Catholic confessor has been sustained (ic). In the case, 
 however, of a bequest to a medical attendant under some- 
 what suspicious circumstances, it was said that the onus of 
 proof lay heavily on him to maintain the validity of the 
 will (x) ; and it has been laid down generally that though 
 persuasion is not unlawful, pressure, of whatever character, 
 if so exerted as to overpower the volition without con- 
 vincing the judgment of the testator, will constitute undue 
 influence, though no force is either used or threatened (y). 
 
 III. Frauds so Considered from their Inconsistency with 
 the Policy of the Laiv. 
 
 The third species of fraud in our enumeration comprises 
 those cases which fall under the disapprobation of equity 
 on account of their inconsistency with general public policy, 
 or with some artificial policy of the law. Under this head 
 might be appropriately considered almost the whole subject 
 of unlawful agreements ; but it will here sufiice to deal in 
 detail with those only in which the Courts of equity are 
 particularly concerned. 
 
 1. TraTisactions respecting marriage. 
 
 (1.) One important class of cases coming under this head Fraud 
 consists of those in which the action of one or more of the ^^^ 
 
 marnase. 
 
 {t) Himhon v. Weatherill, 5 De G. {x) Ashrrll v. Lomi, 2 P. & T^i. 
 
 ^L & a. 301. 477. 
 
 (u) Parfitt V. LawlesK, 2 P.& M. 402. (y) Hall v. //. 1 P. & M. 48L
 
 160 FRAUD. 
 
 parties conccrnorl is disconntenanced on accmmt of its 
 miscliiovous interference with the policy of tlie law re- 
 specting marriage. 
 
 jNIarriage is encouraged by the law, and the marriage 
 contract should above all others be the result of full and 
 free consent. Generally speaking, then, transactions which 
 tend to restrain or prevent marriage, or which tend to the 
 deception of one or both of the parties thereto, are treated 
 as against public policy. 
 
 Transactions in restraint of marriage are either in the 
 form of conditions attached to voluntary gifts, or of the 
 nature of contracts. 
 Conditions Conditions in restraint of marriage were the subject of 
 
 ill restraint i i , , • , i i t p 
 
 of mar- elaborate argument m tlie leadnig case ot 
 
 ria^^e. 
 
 SCOTT V. TYLER. 
 
 [2 Bro. C. C. 431 ; 2 Dick, 712 ; 2 W. & T. L. C. 115.] 
 
 In considering their effect, it is necessary to advert to 
 certain consequences which spring from the fact that in 
 dispositions of real property the Courts are guided by 
 the principles of common law; whereas in bequests of 
 personalty the rules of ecclesiastical law, derived from the 
 law of Rome, form the basis of our jurisprudence. This 
 distinction alone accounts for the different treatment of 
 certain conditions according to whether they appear in 
 dispositions of real or of personal property. 
 Condition The distinction also between conditions precedent and 
 ortub-^"*^ conditions subsequent must be observed. In the former 
 sequent, case the estate does not vest in the beneficiary until the 
 condition is complied with. Thus the condition opens 
 the door to a benefit, and is therefore entitled to a favour- 
 able construction, and to support if at all reasonable. 
 But a condition subsequent only operates after the estate 
 has vested in the beneficiary ; and its effect being thus 
 penal, it is to be strictly construed. The difference in 
 effect of these two cases will best be seen by the aid of 
 the illustration afforded by actual decisions. 
 
 i
 
 FRAUDS ON PUBLIC POLICY. KU 
 
 First as to conditions precedent. Conditions 
 
 A condition precedent attached to a voluntary disposi- ij^uifts^of 
 tion of land is illustrated by cases in which a devise is land. 
 made, or a portion directed to be raised out of land, on the 
 condition of the beneficiaries marrying only with the con- 
 sent of certain persons. Such a condition is valid, and no 
 estate vests until it is complied with (z). 
 
 As regards conditions precedent, moreover, the rules In gifts of 
 applicable to gifts of personalty are the same (d) ; with ' " ' 
 
 perhaps the single difference that in this case if consent is 
 required, the restriction can only be applied until the 
 attainment of a reasonable age, unless there is a gift over 
 of the property in case of marriage at any time without 
 consent (/_>). 
 
 The case of conditions subsequent is more complex. It Conditions 
 is necessary here to distinguish between a condition im- sequent 
 posinof a particular restraint and one which would have the ^^ P^''" 
 
 L o 1 ^ ^ ^ ticular 
 
 effect of restraining marriage generally. Whether the pro- restraint, 
 per ty concerned be real or personal, it is permissible to bestow 
 it subject to a condition subsequent prohibiting marriage 
 with a particular person (c), or with a native of a particu- 
 lar country (d), or belonging to a particular religious body (e) ; 
 or marriage may be forbidden until the attainment of a 
 reasonable age, which is not restricted to majority (/). 
 But it seems that at least with regard to personal property 
 the condition in this case will be considered as merely in 
 terrorem, and will not be insisted on, unless there is a gift 
 over on breach of the condition (g). 
 
 Conditions subsequent in general restraint of marriage In general 
 attached to a gift of personal property are primd facie 
 
 {z) Fry V. Porter, 1 Ch. Ca. 138 ; 1 (e) Buggan v. Kelly, 10 Ir. Eq. 
 
 Mod. 300 ; Harvey v. Aston, 1 Atk. Rep. 295. 
 
 361. (/) Staclpole v. Beaumont, 3 Ves. 
 
 (a) Scott V. Tyler, sup.; Younge v. 89 ; Younge v. Furze, sup. 
 
 Furze, 8 De G-. M. & G. 756. ('/) See note to Harvey v. Aston, 
 
 {b) Malcolm v. ff Callarjlian, 2 1 Atk. 380 ; W. v. B., 11 Beav. 621 ; 
 
 Madd. 349. Pooh v. Bott, 11 Ha. 33 ; Marples v. 
 
 (c) Jerrois v. Dulce, 1 Vern. 19. Bainlridqe. 1 ^radd. 590 ; Jones v. 
 
 (d) Perrin v. Lyon, 9 East, 170. /., 1 Q. B. D. 279.
 
 102 FRAUD. 
 
 gifts of void, aud the gift remaius unalfected thereby. An instance 
 personalty. ^^^ ^|^-^ -^ whcre a testator makes a bequest to a legatee 
 with a direction that in case of his or her marriage the 
 property sliall pass to another (g). And the same rule 
 applies in the case of a mi.Ked fund, and also it seems to a 
 legacy to be raised by the conversion of land (h). The fact 
 that there is a gift over will not in any of these cases save 
 the condition. 
 Limitation But, nevertheless, where the gift is to a woman, and 
 mirrliU. t^^® intention of the donor appears to be not to restrain 
 marriage, but merely in good faith to make a provision 
 for her as long as she remains single, a limitation of per- 
 sonal property until marriage has been sustained (i). The 
 distinction of principle between these two cases is clear 
 enough, though its application may on the facts often be 
 di fficult. 
 In gifts of A condition subsequent in general restraint of marriage, 
 real estate, j^^^-^gi^g^^l ^q ^ g^f^ of real estate, is, it seems, valid (k) ; 
 cl fortiori if in this case, the intention appears to be to 
 create a provision for a woman until marriage (/). 
 Second It must be observed that conditions in general restraint 
 
 ^oTwtfwn ^^ marriage are always valid in gifts to widows, and are 
 the rule, indeed matters of every-day occurrence (m) ; and this not 
 only in the case of a bequest by a testator to his own widow, 
 but also in a gift to the widow of another person (n). A 
 gift over on the second marriage of a man has also been 
 sustained (o). 
 Contracts (2.) Contracts in restraint of marriage are, on the same 
 of ^nai-^^"^* principles as conditions to that effect, considered fraudu- 
 riage. lent and void. 
 
 (a) Morley v. Kennoldson, 2 Ha. {m) Craven v. Brady, 4 Eq. 209; 4 
 
 570. Ch. 206. 
 
 (A) Bellairs v. B., 18 Eq. 510 ; (n) Charlton v. Coombes, 11 W. R. 
 
 Lloyd V. L., 2 Sim. N. S. 25.') 1038 ; Neivton v. Marsden, 2 J. & H. 
 
 (l) Webb V. Grace, 2 Ph. 701 ; 356. 
 
 Heath V. Lewis, 3 De G. M. & G. 954. (o) Allen v. Jacison, 1 Ch. D. 399. 
 
 (it) Harvey v. Aston, 1 Atk. 380. For a concise summai-y of tliese rules 
 
 note. respecting conditions, see Pollock on 
 
 (/) Jones V. /., 1 Q. B. D. 279. Contracts, p. 307, 2nd ed.
 
 FRAUDS ON PUBLIC POIJCY, 1 Go 
 
 Thus where a woman gave a bond conditioned tu be paid 
 in case she married again, it was on her marriage ordered 
 to be delivered up (-p). 
 
 Similarly a contract to marry a paiticular person who Contracts 
 is not bound by a corresponding obligation is invalid as *^" '"''^''•■y> 
 opposed to public policy (q). A contract by which per- 
 sons are mutually bound to marry is valid at law (r), but 
 will be set aside in equity if it amounts to a fraud upon a frauds on 
 parent or person in loco parentis, as in Woodhouse v. 1^'^°*^' 
 Shepley (s), where the father of the lady was known to be 
 opposed to the match, and the suitors clandestinely entered 
 into mutual bonds to marry each other after liis death, 
 under a penalty of £600. 
 
 Transactions also know^n as marriage Ijrokage contracts, Marriage 
 in which a person undertakes for a stipulated reward to ^i t ^"^ , 
 bring about a certain marriage, are void as frauds upon 
 public policy, and as necessarily involving the decej)tion of 
 one of the parties to the marriage or of the parents (t). 
 Such contracts being void are incapable of confirmation (li), are voiH, 
 and money paid thereunder may, it seems, be I'ecovered 
 back (x). 
 
 On the same principle every contract by which a parent or so con- 
 guardian seeks to obtain any remuneration for promoting or tending to 
 
 consenting to the marriage of his child or ward is void (y). deceive 
 A 1 .1 1, . n • one of the 
 
 And generally all contracts upon a treaty oi marriage parties. 
 which tend to deceive or mislead one of the parties to it 
 or their relatives are deemed fraudulent and void. Thus 
 a security given by a son without the privity of his parents 
 to return part of the portion of his wife was held to be 
 invalid (z); and where a man, on the treaty for the marriage 
 of his sister, lent her money, in order to increase her 
 
 (■p) Baker v. White, 2 Vern. 215. 76. 
 
 (5) Key V. Bradshaw, 2 Vern. (m) Cole v. Gtbson, 1 Ves. sr. 503. 
 
 102. (x-) Smith V. Bruniny, 2 Vern. 
 
 (r) Cock V. Richards, 10 Ves. 429, 392. 
 438. (y) Keat v. Allen, 2 Vern. 588 ; 
 
 (s) 2 Atk. 535. Hamilton v. Mohun, ib. 652. 
 
 \t) Roberts v. R., 3 P. Wms. 65, (z) TurU)n v. Benson, 1 P. Wms. 
 
 76 ; Hall v. Thynne, 9 Show. P. C. 496. 
 
 M 2
 
 1G4 FRAUD. 
 
 apparent portion, and she gave a bond for its repayment, 
 this bond was decreed to be given up (a). In such trans- 
 actions as these, relief will be given even on the suit of a 
 'particei')8 crimmis, the public interest causing a departure 
 from the usual rule that a plaintiff in equity must come 
 with clean hands. 
 Attempts (3.) With equal or greater reason any attempts to effect a 
 husband^ Separation between a husband and wife through the means 
 and wife, of a conditional gift, are discountenanced. If a bequest is 
 made on condition of such a separation, the condition is 
 absolutely void, and the bequest remains unfettered (6). 
 In a much more recent case, where an annuity was con- 
 ditioned on a married woman continuing to live apart from 
 her husband, the Court refused to give effect to the con- 
 dition after a reconciliation had taken place (c). 
 A^ee- 2. On a somewhat analogous principle, agreements to 
 
 influence ^^^® influence with a testator in favour of a particular person 
 testators, or object are considered void (cT) ; though a man may validly 
 bind himself by contract to make a particular testamentary 
 disposition (e). 
 Contracts 3. Another class of transactions void as contravening the 
 of Trade"^ policy of the law are contracts in general restraint of trade. 
 This part of the subject does not indeed present for con- 
 sideration any principles distinctively equitable, the Courts 
 of law having long been as jealous as those of equity 
 of any agreement tending to promote monopolies or dis- 
 courage industry and just competition (/). Equity also 
 recognises the same exceptions as prevailed at law, to the 
 effect that special and limited restraints are lawful ; for 
 instance a restraint against carrying on business at a 
 particular place or within a defined area, or with certain 
 
 (ft) Gale V. Lindo, 1 Vera. 475. 469 ; 12 CI & F. 45 ; Loffusv. Maw, 
 
 (6) Tennant v. Brail, Toth. 141 ; 3 Giff. 592. 
 
 Broicn v. Peck, 1 Ed. 140. (/) See Bunn v. Grey, 4 East, 
 
 (c) Wrev V. Bradley, 2 De G. & 190 ; Mumford v. Gethinr/, 7 C. B. 
 Sm. 49. (X. S.) 305, and the leading autho- 
 
 (d) Dehenham v. Ox, 1 Ves. sr. rity of Mitchel v. Retpiolds, 1 P. 
 276. Wms. 181 ; 1 Sm. L, C. 406. 
 
 (e) De Beil v. Thomson, 3 Beav.
 
 FRAL'DS ON PUBLIC POLICY. 165 
 
 specified persons, or for a limited time. In all such cases 
 the Court will judge of the reasonableness or otherwise of 
 the restriction, and support or subvert the contract accord- 
 iDgly. Similarly a person may sell the secret of a par- 
 ticular process of business and restrain himself from using 
 it in future {g). 
 
 4. Another class of transactions which here invites atteu- Agi-ee- 
 tion comprises those discountenanced on account of their fudkLl'to' 
 tendency to interfere ^^^th the proper administration of f^^ adiuin- 
 
 ■, - . . . istration of 
 
 government and oi justice. Agreements to corrupt or govern- 
 improperly to influence any officer of State, whether execu- ™®"* ^^'^ 
 tive or judicial, are obviously void ; and so suspicious is to in- ' 
 the law of everything which threatens danger of this kind, ^^^ers of 
 that any agreements which have an apparent tendency State, 
 in that direction are equally held void, though an intention 
 to use unlawful means be disclaimed (li). 
 
 Similarly, apart from the provisions of statutes which buying and 
 are very comprehensive in their extent, agreements for the offices', 
 buying, selling, or procuring of public offices are wholly 
 void as well at law^ as in equity (*). 
 
 As to assignments of salaries, pensions, &c., and agree- 
 ments savouring of maintenance or champerty, see 
 "Mortgages," sect. V., IV., .5, p. 313. 
 
 IV. Frauds on IJiird Persons. 
 
 The last species of fraud which remains to be considered 
 comprises frauds so considered from their iuequitable inter- 
 ference with the private rights of third persons not parties 
 to the fraudulent transaction. 
 
 These are of two classes : first, where such third person 
 is deceived by the misrepresentation or concealment of 
 
 (g) Bnjson v. Whitehead, 1 S. & S. Egerton v. Broivnlow, 4 H. L. 1— 
 
 74 ; Harms v. Parsons, 32 Beav. 250. 
 
 328. See generally Pollock on Con- (i) Harrington v. Da Chattel, 2 
 
 tracts, 309—317, 2nd ed. Swanst. 159 n. ; Hartwdl v. //., 4 
 
 (h) Pollock Cont. 286, 2nd ed. ; Ves. 811.
 
 IGG 
 
 FRAUD. 
 
 Deception 
 of third 
 person 
 
 by fraudu- 
 lent mis- 
 represen- 
 tation. 
 
 Rules in 
 Barrij v. 
 Grosskeij. 
 
 By con- 
 cealment. 
 
 Saccvje v. 
 Foster. 
 
 one of the parties to the transaction : secondly, the 
 fraudulent exercise of powers for purposes other than those 
 intended by the donor of the power. 
 
 1. Deception of Third Persons. 
 
 The consideration of this subject brings before us again 
 questions very similar to those dealt with under the first 
 head, or actual fraud ; and generally speaking the charac- 
 teristics of misrepresentation and concealment there 
 exhibited are equally applicable here. There are, however, 
 some important cases touching the particular application 
 of them in the circumstances now under view, to which it 
 behoves us to advert. 
 
 Both misrepresentation and concealment may be treated 
 as fraudulent, not only by a party to the transaction who 
 is deceived, but also in some circumstances by third par- 
 ties who suffer thereby. 
 
 As to misrepresentation as affecting third parties, the 
 following rules were laid down by Lord Hatherley in 
 
 BARRY V. CROSSKEY. 
 
 [2 J. & H. 1, 22.] 
 
 (1.) "Every man must be held responsible for the 
 consequences of a false representation made by him to 
 another, upon which a third person acts, and so acting 
 is injured or damnified — provided it appear that such 
 false representation was made with the intent that it 
 should be acted upon by such third person in the manner 
 that occasions the injury or loss." 
 
 (2.) " The injury must be the immediate and not the 
 remote consequence of the representation thus made" [l). 
 
 As to concealment as injuriously affecting third parties, 
 a leading authority is 
 
 SAVAGE V. FOSTER 
 
 [9 Mod. 35 ; 2 W. & T. L. C. 620], 
 
 which decided that a person knowing his own title, and 
 
 (0 Pollock Contracts, 484, ed. 2 ; Alt.-G. v. Rmj, 9 Cli. 397.
 
 FRAUDS ON THIRD PERSONS. 167 
 
 not giving notice of it to a purchaser, could not be allowed 
 to set it up against the purchaser; and that the coverture 
 of the person was no protection to the transaction. 
 
 In this case a married woman, knowing herself to be 
 tenant in tail of property subject to her mother's life 
 interest, upon the marinage of her half-sister, inducetl her 
 mother to convey the lands to her for life, with 
 remainder to the intended husband in fee. The husbcind 
 under this title, and with no notice of the tenancy in tail, 
 sold to a bond fide purchaser. It was held that the 
 married woman could not set up her title against the 
 purchaser, and that her right was extinguished. 
 
 In this case there was active interposition to induce the 
 conveyance ; but the same principle has been applied 
 where a person has simply stood by and permitted others 
 to deal with the property in a manner inconsistent with 
 his rights. If knowing of such a transaction, he does not 
 give the purchaser notice, he cannot afterwards avoid the 
 purchase (m). 
 
 So, if upon inquiry being made, a person denies an Denying 
 incumbrance, he cannot afterwards set it up against the l^ances, 
 purchaser {n). But in this case mere silence has been 
 held not sufficient to avoid the incumbrance, unless at 
 least inquiry is made (o). The distinction between this 
 and the case of an owner lying by is plain, since there is 
 nothing inconsistent in the sale of property subject to an 
 incumbrance, and the incumbrancer might have assumed 
 that the transaction was of that character. 
 
 Even if a person in ignorance of his rights misleads a Purchaser 
 purchaser, the purchaser will be relieved against him if ignorance, 
 the circumstances were such that he ought to have known 
 his rights ; as where a father stands by and allows his son 
 to dispose of a fee simple, supposing the fee was in the 
 
 (m) Hobhs v. Norton, 1 Vern. 554. 
 136. (o) Osborii v. Lea, 9 Mod. 96. 
 
 (n.) Ibhotson v. Ehodes, 2 Vern.
 
 168 FRAUD. 
 
 son, while in fact it was in the father himself, subject to 
 the son's life estate (p). 
 Suffering The Same principle applies to a case in which a person 
 
 money to , . 
 
 be ex- stands by and suiters another to lay out money on his 
 pended m property, supposing it to be his own. At law he could 
 still have asserted his title without making compensation 
 for the improvements ; but in equity the person who had 
 so expended money would be entitled to be indemnified 
 either by a pecuniary compensation, or sometimes, as in 
 the case of a lessee under a defective lease, by a con- 
 firmation of his title (g). The case is strengthened if 
 there is some fiduciary relation such as that of agency 
 between the parties (r). 
 
 But a person spending money by mistake upon the 
 property of another has no equity against the owner, if he 
 was ignorant of the expenditure ; except in so far that if 
 it is necessary for the owner himself to seek the assistance 
 of equity with respect to the property, he will be required 
 to do equity by making compensation as a condition of 
 obtaining relief (s). And if after notice of an adverse title, 
 a person proceeds to lay out his money, equity will not 
 assist him merely because no active steps have been taken 
 to establish the title (t). 
 Coverture The case of Savage v. Foster (u) shows that coverture 
 or infancy jg j^q excuse for such instances of fraud as those we are 
 
 no excuse. 
 
 now considering : it is equally well established that infancy 
 affords no better protection (x). An infant cannot, it is 
 true, be made answerable in equity any more than at law 
 for a contract which he has made during his minority, on 
 the mere ground tliat without any assertion on his part 
 the other party believed him to be of full age {y) ; but he 
 is never suffered to take advantage of his own wrong {z). 
 
 (p) Teasdale v. T., Sel. Ch. Ca. zn^, 6 Ha. 273 ; Ramsden v. Dyson, 
 
 59. 1 L. R. H. L. 129, 141. 
 (q) Beaufort v. Patrick, 17 Beav. (m) 9 Mod. 35. 
 
 60, 75. (x) Watts v. CressweU, 2 Eq. Ca. 
 (r) Caiodor v. Lewis, 1 Y. & C. Ab. 515. 
 
 Ex. 427. (y) Stikenuin v. Dawson, 1 De G. 
 
 (s) Neesom v. Clnrksmi, 4 Ha. 97. & Hm. 90. 
 (0 Master of Clare Ball v. Hard- (z) Clarke v. Cobley, 2 Cox, 173.
 
 FRAUDS ON POWERS. 169 
 
 2, Frauds on Poiuers. 
 
 It is an established principle of equity that a donee of a Powers 
 limited power must execute it bond fide for the end™"^*.*'®, 
 
 ■•■ "^ exercised 
 
 designed. Otherwise the appointment, though good in bond fide. 
 law, will be held corrupt and void in equity. 
 The leading case on this subject is 
 
 ALEYN V. BELCHIER. 
 
 [1 Eden, 132; 1 W. & T. L. C. 415.] 
 
 A power of jointuring was executed in favour of a wife, 
 but with an agreement that the wife should only receive a 
 part as an annuity for her own benefit, and that the residue 
 should be applied to the payment of the husband's debts. 
 It was held that this agreement was a fraud upon the 
 power, and the execution was set aside, except so far as 
 related to the annuity. 
 
 The appointor must, in exercising such a power, act 
 with good faith and sincerity, and with an entire and 
 single view to the real puri^ose and object of the power. 
 He cannot carry into execution any indirect object, or 
 acquire any benefit for himself either directly or indi- 
 rectly {a). And though the donee of a limited power 
 may validly release it, he may not do so fraudulently any 
 more than he can appoint fraudulently (6). 
 
 Such is the general principle ; and it includes cases 
 in which there is not, as well as those in which there 
 is an antecedent agreement with the appointee to effect 
 purposes not within the scope of the power ; as well 
 cases in which a benefit is sought to be attained for 
 third parties foreign to the power, as those in which 
 the appointor seeks to benefit himself. We may thus 
 illustrate its application by four classes of cases. 
 
 (1.) Where there is an antecedent agreement. 
 
 (i.) For a benefit to the appointor himself. Ante- 
 
 A frequent instance of this is where a father has a fraudulent 
 
 (a) Portland v. Topham, 11 H. L. (6) Cunniwjham v. Thurloiv, 1 E.. 
 
 32. & M. 436, n.
 
 170 
 
 l-'RAUD. 
 
 agree- 
 ment. 
 For benefit 
 of the 
 appointor. 
 
 For the 
 benefit of 
 strangers. 
 
 Fraudu- 
 lent 
 
 design of 
 appointor 
 to benefit 
 himself. 
 
 Fraudu- 
 lent 
 release. 
 
 power of appointment among children, and he bargains 
 with some of them for some benefit for himself, e.g., 
 the payment of his debts in consideration of the ajipoint- 
 ment in their favour. Such an appointment is deemed 
 fraudulent and void (c). The same was held where the 
 appointor bargained that the appointed fund should be 
 lent to him {d), and also where the appointment was 
 exercised in consideration of an agreement for the pur- 
 chase of other expectant shares belonging to them (e). 
 
 (ii.) For the benefit of third parties foreign to the 
 power. 
 
 Instances of this are where the donee of a power of 
 appointment among children stipulates for a benefit for 
 his or her wife or husband, as in Carver v. Richards (/) ; 
 or conversely where a power of jointuring is exercised 
 under a bargain for the benefit of the children. And 
 of course, a case in which there is not such close rela- 
 tionship between the parties stands on no better 
 ground {g). 
 
 (2.) Where there is no antecedent agreement, 
 
 (i.) and the appointor seeks his own advantage. 
 
 Perhaps the most flagrant example of this form of 
 fraudulent appointment is where a father, having a power 
 of raising portions for children, directs a portion to be 
 raised long before it is required, or in favour of a sickly 
 child, with a view to acquiring the money as next of 
 kin of the child on its decease {h). 
 
 The case already cited of a fraudulent release may also 
 bo referred to in this connexion. There a father released 
 his power as to a part of the fund so as to vest it in him- 
 self as representative of a deceased son. The Court, how- 
 ever, refused to give effect to the release (/). 
 
 Martin, 2 Sim. 
 
 (c) Farmer 
 502. 
 
 (d) Arnold v. Hardwick, 7 Sim. 
 343. 
 
 (c) Cimynijliame v. Anstruther, 2 
 L. II. Sc. & b. 223. 
 
 (/) 1 De G. F. & J. 548. 
 
 {(/) Birley v. B., 25 Beav. 299. 
 
 (/() Ilinckinr/brokev. Seymour,! Bro. 
 C. C. 395 ; Wellesky v. Mornimjton, 
 2 K. & J. 143. 
 
 ({) Cunningham v. Thurloiu, 1 R. 
 & M. 436, n.
 
 FRAUDS ON POWERS. 
 
 171 
 
 But an appointment is not necessarily invalid because 
 the appointee is an infant (k), nor because the appointor 
 may derive some benefit from the appointment. If tlic 
 whole transaction when looked at together shows no 
 appearance of mala fides, but only an intention to improve 
 the whole subject-matter of the appointment, there is no 
 reason why the appointor should not participate in the 
 improvement (I). So also an ultimate limitation in favour 
 of the appointor may be unobjectionable (ni). 
 
 In such cases the burden of proving a corrupt purpose 
 is generally on the person who attempts to impeach the 
 transaction (n), though the circumstances may be so strong 
 against the appointor, for instance, where one appointment 
 has already been set aside for fraud, that this position will 
 be reversed, and the appointor will be required to show 
 the innocence of his act (o). 
 
 (ii.) Where the appointor intends benefit for strangers 
 to the power. 
 
 The intention of the donor of the power in limiting the Benefit- 
 objects thereof must be strictly followed, and that inten- y"^j^j^,gj.g 
 tion extends as well to the persons entitled in default of 
 appointment as to the objects themselves. To allow the 
 appointor to depart from the terms of the power would be to 
 substitute his purpose for that of the donor in the disposi- 
 tion of the donor's property (p). Thus an appointment 
 amongst children is invalidated by a reservation of a 
 benefit for another person, for instance a husband, though 
 it may never have been communicated to him (q). And 
 an attempt to impose upon the appointee a condition not 
 authorised by the power falls within the same principle (r). 
 Nor does it make any difference that the settlor himself 
 
 {k) Beere v. Hoffmister, 2-3 Beav. (o) TopJiam v. Portland, 5 Ch. 40, 
 
 101 ; Fearon v. Desbrisay, 14 Beav. 62 ; Humphrey v. Olver, 28 L. J. 
 
 635. Ch. 406. 
 
 [l) Re Huish's Chariti/, 10 Eq. 5 ; {p) Topham v. Portland, 1 De G. 
 
 Jloach V. Trood, 3 Ch. t). 430. J. & S. 517; 11 H. L. 32. 
 
 (m) Cooper- V. C, 5 Ch. 203. (q) Re Marsden, 4 Drew. 594. 
 
 (n) Campbell v. Hoim, 1 Y. & C. \r) D'Abbadk v. Blzoitt, 5 I R. 
 
 Ch. 664. Eq. 205.
 
 172 FRAUD. 
 
 is the donee of the power; having declared the trusts he 
 must follow them (s). 
 
 The mere fact that the appointee, soon after the appoint- 
 ment re-settles the property on other persons, not objects 
 of the power, will not in the absence of some further 
 evidence of a bargain to that effect, invalidate the appoint- 
 ment. Such re-settlement is quite consistent with perfect 
 good faith in the appointor (t). 
 Fraud It is further to be observed that a fraudulent execution 
 
 against" of a povver will be set aside, not only as against the ap- 
 ^'*!i^'^*^fr^ pointer, but also as against persons claiming under him as 
 donee. volunteers, or even as purchasers for valuable considera- 
 tion, unless they acquire the legal estate without notice of 
 the fraud {u). If he takes the legal estate with notice, 
 or the mere equitable estate even without notice, he can- 
 not sustain his purchase against the persons entitled in 
 default of appointment (x). But it seems that where he 
 secures the legal estate, actual notice must be brought 
 home to him ; a mere suspicion will not suffice (y). 
 Fraudu- An appointment is equally invalid where the consent of 
 
 consent. Certain persons is required, and such consent has been 
 obtained by fraud (z), or on the other hand has been 
 fraudulently given (a). 
 Partial (3.) The quostion often rises, whether a fraudulent 
 
 when arrangement as to part of the property appointed vitiates 
 wholly the appointment in toto, or only as to the part to which 
 anappofnt- the fraud extends. In the leading case of Aleyn v. 
 meat. Belckiev we find an authority for the severance of the 
 appointment, a part being sustained, and only the part 
 intended for a corrupt or illicit purpose being set aside (6). 
 In this case, the power was one of jointuring, and there 
 was thus only a single lawful object of the power. But 
 
 (s) Lee V. Fernie, 1 Beav. 483. (y) M'Queen v. Farquhar, 11 Ves. 
 
 (t) Routledrje v. Doi-ril, 2 Ves. jr. 467. 
 
 357. {z) Scroygs v. ,S'., Anib. 272, 812. 
 
 (m) Palmer v. Wheeler, 2 Ba. & («) Eland v. Baker, 29 15eav. 137. 
 
 Be. is. (i) See also Lane v. Paye, Amb. 
 
 {x) Daubeny v. Cockiurn, 1 Mer. 233. 
 626.
 
 FRAUDS ON POWERS. 173 
 
 in the case of a power of appointment to several objects 
 an appointment fraudulent in part will usually be wholly 
 set aside (c). The distinction seems to be sound and well 
 established. For in the case of a power of jointuring where 
 there is evidently an intention to exercise the power, there 
 can be no mistake as to the benefit to be received by the 
 donee ; but where there are several objects among whom 
 the appointor may select at his discretion, and he appoints 
 improperly, there is no means of ascertaining in what way 
 he would have divided the fund had his intention been 
 innocent (d). 
 
 The exception to this rule illustrates the principle of this 
 distinction ; for we find that where there is evidence by 
 which the Court can distinguish what is attributable to an 
 authorised purpose from what is tainted with fraud, the 
 appointment may be severed, part being sustained, and 
 part set aside (e). This is the case where, though the two 
 appointments are contemporaneously made, the proper 
 can be clearly distinguished from the improper transac- 
 tion (/). 
 
 (4.) The case of an appointor executing an appointment Contracts 
 in pursuance of a bargain inconsistent with the terms of apnoi^t'ees. 
 the power, and therefore corrupt and invalid, must be 
 distinguished from a case in which the appointees con- 
 tract with each other to allow some benefit to the 
 appointor. This is frequently the case where a parent has 
 a power to appoint among children, and the children agree 
 to deal with the fund by way of a family arrangement 
 under which the parent is benefited. Such an arrange- 
 ment will, indeed, be carefully scrutinised (r/), but if it is 
 found to be hondjide it will not be disturbed (A). 
 
 Another distinction which it is important to indicate is Motive of 
 that between the intention or purpose and the motive of ''^PP""i*'' 
 
 (c) Dauheny v. Cockburn, 1 Mer. J. & S. 517; 11 H. L. 32. 
 626. (/) Eowley v. Ji., Kay, 242. 
 
 (d) Farmer V. Martin, 2 Sim. ^02 ; (<j) A(jassiz v. Squij'c, 18 Beav. 
 Arnold v. Hardwicke, 7 Sim. 343. 431. 
 
 (f) Topham v. Portland, 1 De G. (/() Davis y. Uphill, 1 Swanst. 129.
 
 174 FRAUD. 
 
 ment im- an appointor. A corrnpt purpose, as we have seen, vitiates 
 the appointment ; but if the appointment be within the 
 terms of the power, the Court will not advert to circum- 
 stances of anger or resentment which may have induced 
 an unequal appointment (i). 
 
 Illusory (5.) Formerly, indeed, where a person had a non-exclu- 
 
 meiits! si'^s power of appointment among a class, although with 
 unfettered discretion as to the amount of the shares, and 
 he appointed to some of the objects a merely nominal 
 share, the appointment w^as set aside as being illusory and 
 not hondjide following the intention of the power. This 
 was done, for instance, where in appointing a fund of 
 £100,000 amongst a class, the donee gave to one of 
 the class five shillings only (k); and it was not necessary 
 that the discrepancy should be so glaring as this. The 
 difficulty, however, of determining the limits of what was 
 illusory and what was not, was very great, and much litiga- 
 
 1 Will. IV. tion was occasioned. To avoid the inconveniences which 
 were thus occasioned, the legislature interfered, and by 
 1 Will. IV. c. 4G, it was enacted that after the passing of 
 the Act, no appointment made in exercise of any power of 
 appointment amongst several objects should be invalid or 
 impeached in equity on the ground that an unsubstantial, 
 illusory, or nominal share only should be thereby appointed 
 or left to devolve as unappointed. 
 
 Still there was nothing in the statute authorising an 
 appointor under a non-exclusive power to omit entirely any 
 one of the objects of the power. It was sufficiently absurd 
 that an appointment should have been good if it gave 
 £1000 to A., £1000 to B., and a shilling to C, but bad if 
 the shilling was not given to C. ; yet such was the law (I). 
 The reasoning was that the gift of the shilling to C. was 
 at least evidence that there had been no oversight in the 
 execution (m). But now this distinction has disappeared, 
 
 (i) Vane v. Duwjannon, 2 S. & L. 289. 
 
 118, 130; Supple v. Lawson, Amb. [l) Bidteelv. Flummer, 6 Ch. 164. 
 
 729. (m) Re Stone, 3 T. R. Eq. 621. 
 
 (A) Mwgan v. Sur 111071, 1 Tannt. 
 
 c. 46
 
 FRAUDS ON POWERS. 175 
 
 and since 87 & 38 Vict. c. 37, the difference between 37 & 38 
 exclusive and non-exclusive powers has ceased to exist, ^'^■^•■'• 
 an appointment under a power of the latter kind being 
 no longer invalid on account of the omission of any of 
 the objects.
 
 170 
 
 CHAPTER III. 
 
 MISTAKE AND ACCIDENT. 
 
 Section I. — Mistake. 
 
 Description. 
 I. Mistakes of Laiu. 
 
 1. Generally. 
 
 2. Special circumstances entitling to relief. 
 II. Mistakes of Fact. 
 
 1. Fundamentctl Mistakes. 
 
 2. Unilateral Mistakes as to suhject-mcttter. 
 
 3. Mistakes of expression. 
 
 Rectification of instruments. 
 Defective execution of poivers. 
 
 Mistake MISTAKES between parties to the various transactions of 
 able ^ ^^^® ^^ course assume an immense variety of forms, and 
 present innumerable differences in degree. If it is danger- 
 ous to define fraud, lest the definition should be evaded by 
 newly conceived devices, it is impossible to define mistake 
 in such a manner as to indicate when it will and when it 
 will not legally affect a transaction, because it is impossible 
 to foresee or provide for the infinite variety of forms which 
 it will assume in the accidents of business. Since no 
 formal expression is needed to make clear the meaning of 
 the word, and since no formula can be framed which shall 
 generalise the legal effects of mistake, little advantage can 
 be gained by attempting a definition. It is only by a
 
 DEFINITION. 177 
 
 detailed analysis that we can learn when mistakes produce 
 material legal effects, and when they do not ; and this being 
 so, it can scarcely be other than illusory to pretend to 
 convey any knowledge respecting it by the use of vague 
 and general expressions. 
 
 In case, however, the student should wish such a definition 
 as the nature of the case admits, we may quote that of 
 Story, Avho, distinguishing mistake from accident, describes 
 it as " some unintentional act, or omission or error, arising' 
 from ignorance, surprise, imposition, or misplaced con- 
 fidence " (a). This definition serves, as intimated, to dis- 
 tinguish between mistake and accident ; but it fails to 
 clearly mark the distinction which must be observed 
 between mistake, pure and simple, and fraud. 
 
 Most of the cases in which questions arise as to the Classifica- 
 effects of mistake relate to transactions in which two or mistakes, 
 more parties are engaged or concerned, such as contracts, 
 or disj^ositions of property. For purposes of classification 
 we may, for the present, consider all such transactions as 
 if they were between two parties only. It is evident, then, 
 that there are three distinct species of mistake which may 
 arise : — - 
 
 (1.) Mistake may be induced in one of the parties by an 
 act or omission of the other party ; 
 
 (2.) One of the parties may be mistaken apart from any 
 consideration of the conduct of the other ; 
 
 (3.) The mistake may be common to both parties. 
 
 The first of these species introduces considerations and Misrepre- 
 principles quite distinct from those which relate to the di^tin-^""^ 
 remaining two. Mistakes thus induced by one of the guished 
 parties amount to misrepresentations. It depends on a mistake, 
 variety of circumstances whether or not they will be 
 regarded as amounting to frauds. These circumstances we 
 have made the subject of investigation under the heading 
 of Fraud (6). 
 
 («) Story, 110. (Jj) Tp. 139, et scri. 
 
 N
 
 17« MISTAKIC. 
 
 Two species of mistakes remain, the examination of 
 which is not complicated by the admixture of the elements 
 of fraud. The importance of distinctions between them 
 will appear when we enter on the consideration of mistakes 
 of fact. 
 Mistakes xiie luost familiar classification of mistakes is that which 
 of Fact. disiingnishes between Mistakes of Law and Mistakes of 
 Fact. The contrast between these two classes is sometimes 
 expressed by saying that relief is given against mistakes of 
 fact, but not against mistakes of law. But this statement 
 is very far indeed from accuracy. On the one hand, there 
 are many circumstances in which relief will be granted 
 against mistakes of law. On the other hand, a mistake of 
 fact does not of itself, even ]irimd facie, entitle a person to 
 be relieved from the consequences of his acts. 
 
 I. Mistakes of Law. 
 
 jf/nornntia 1. The familiar maxim " Ignorantia juris tieminem ex- 
 '^' ' ' cusat" expresses a principle which is necessary to the ad- 
 ministration of justice. It has sometimes been stated that 
 its operation is confined to the domain of criminal law (c) ; 
 but it has long since been held as well in equity as at 
 common law that parties may not, generally speaking, 
 demand the rescission of their bargains or the reversal of 
 their solemn acts on a ground so uncertain and difficult of 
 determination as an alleged ignorance of law (jl). 
 Limitation The principle expressed by the maxim viewed thus 
 maxim. broadly must certainly be assented to. But a close 
 observation at once shows that a general expression in this 
 form is far too vague to admit of being employed as a 
 practical test. It presupposes an accurate knowledge of 
 w^hat is meant by law, and an unfailing power of discerning 
 the precise boundary which distinguishes mistakes of law 
 
 (c) Lansdoicn v. L., Mos. .364; 2 (d) Stewart v. S., 6 CI. & F. 911, 
 
 J. & \V. 205, 966.
 
 MISTAKES OF LAW. 179 
 
 from mistakes of fact. Furthermore, it omits to take account 
 of many peculiar circumstances which may render its appli- 
 cation repugnant to common sense and to the elementary 
 principles of equity. Before we can safely apply the maxim, 
 we must, therefore, first inquire in what sense the term law 
 is here used ; and secondly, we must advert to certain 
 special circumstances which are deemed to render a 
 demand for relief both reasonable and equitable. 
 
 (1.) The maxim evidently applies only to English law. NotappH- 
 No one is presumed to know the laws of foreign countries, forei-^n 
 They are invariably treated as matters of fact, to be ^''^^^• 
 elucidated, like other matters of fact, by evidence. And 
 it is to be observed that the laws of Scotland and of the 
 colonies, are in this, as in other respects, deemed foreign 
 laws (e). 
 
 (2.) Although public statutes are as fully presumed to Nor to 
 be known as the general principles of civil and criminal statiites. 
 law, this is not the case with respect to private Acts of 
 Parliament. In the absence of notice of these latter, 
 ignorance or disregard of them amounts to a mistake of 
 fact, and may be relieved against (/). 
 
 (3.) It was said by Lord Westbury in Cooper v. Phihhs Its cappli- 
 (g), that in the maxim under consideration the word private 
 'jus ' was used in the sense of denoting general law, rights con- 
 
 sitlcrGfl. 
 
 the ordinary law of the country ; but that when the word 
 'jus ' was used in the sense of denoting a private right, the 
 maxim had no application, private right of ownership being 
 a matter of fact. But this qualification seems to be more 
 apparent than real. Of course if ignorance of the private 
 rights of another is due to ignorance of the matters of fact 
 which have led to those rights, the mistake is then merely 
 one of fact, and falls outside the present question alto- 
 gether. But if the facts are known, the legal consequences 
 of those facts are most clearly presumed to be known ; for 
 
 (e) Leslie v, BailUe, 2 Y. & C. (/) Earl of Pom fret v. Lm-d Wind- 
 
 Ch. 91 ; McCormicTc v. Garnett, 5 De sor, 2 Ves. sr. 472, 480. 
 G. M. & G. 278. iu) 2 L. R. H. L. 149, 170. 
 
 N 2
 
 MISTAKE. 
 
 those consequences are matters of general law, and must be 
 included in the maxim if anything is. This is well illus- 
 trated in the case of PuUen v. Beady (h), where a devise 
 was made to a woman upon condition that she should 
 marry with her parents' consent : she married without such 
 consent, whereupon a forfeiture accrued to other parties, 
 who, though cognisant of the marriage without consent, 
 executed an agreement which had the effect of waiving the 
 forfeiture. They sought relief from this agreement, alleg- 
 ing that they were ignorant of the fact that forfeiture had 
 been occasioned by the marriage without consent ; but it 
 Avas refused them on the ground that the forfeiture was a 
 legal consequence of the facts before them, that their 
 mistake was thus one of law, and was not entitled to 
 relief (/). 
 
 2. Secondly, there are certain special circumstances 
 under which, though the mistake alleged is undeniably one 
 grounding of law, it is deemed both reasonable and equitable to grant 
 
 title to T f> • , • , 
 
 relief. rebel against it. 
 
 (1.) It is quite conceivable that the two parties to an 
 agreement may both be labouring under a false impression 
 as to a matter of law, the effect of which would be to make 
 the agreement something entirely different from that which 
 they intended. In such a case there is indeed no contract 
 at all, the mutual agreement being different in substance 
 from that which legally springs from their acts. It can 
 scarcely be supposed that the law would in these circum- 
 stances enforce an agreement which was in truth never 
 made by the parties at all. The question here is not 
 whether a mistake of law will avoid a contract, but whether 
 there ever was a contract (k). 
 
 Mistake in The case is quite analogous where, an agreement having 
 ^^^ been made, it is erroneously expressed through a mistake 
 of law. Here again, to refuse relief against the erroneous 
 
 (/O 2 Atk. .587, 591. sr. 126. 
 
 (t) See also IrvJiam v. CJiihl, 1 (k) See Pollock Contr. 394-.'j, 
 
 Bro. C. C. 92; Bhujlam v. B., 1 Ves. 
 
 expiesBion.
 
 MISTAKES OF LAW, 181 
 
 expression would be to hold the parties to an agreement 
 which they never made (/). 
 
 (2.) We have already excluded from the present consi- Misrepre- 
 
 , . . , . , . . sentation 
 
 deration cases m which erroneous impressions respecting actual 
 the law have been actively produced in the mind of one of "'^' 
 the parties by the other. Persons so deceived are entitled 
 to relief, for in such a case there exist the most conspicuous 
 elements of actual fraud, and equity is ever ready to relieve 
 against fraud, whatever form it may assume (m). 
 
 But circumstances less strong than active and wilful Implied 
 deception may suffice to evidence such a fraudulent disposi- 
 tion as to warrant the interference of equity for its discom- 
 fiture. For instance, if one of the parties to a transaction 
 parts with his property in manifest ignorance of a plain 
 and settled principle of law, the fact of allowing him so to 
 act is often deemed to be sufficient evidence of an unfair 
 advantage having been taken to call for equitable inter- 
 position. This has been illustrated by the case of an eldest 
 son of an intestate agreeing, in ignorance of his rights of 
 heirship, to divide the estates with a younger brother (n). 
 But here, as before, the true ground of relief is not the fact 
 of a mistake of law, but the fraud which is implied. 
 
 (3.) There are cases also in which a formal and solemn Surprise. 
 act performed in ignorance of a legal right has been re- 
 versed on the ground of mere surprise ; for instance, where 
 a woman who was entitled to elect, hastily decided in ignor- 
 ance of her right to an account (o). Where the surprise has 
 been common to both the parties to a transaction, there is 
 of course still stronger ground for granting relief Such 
 cases approach more or less closely to those already men- 
 tioned, in which the error goes to the very foundation of 
 the contract (p). 
 
 (4.) The maxim has no application where the alleged Matters of 
 
 (/) Ibid. (o) Pusei/v. Deshoiirerie, SV-WinH. 
 
 (m) Willan v. W., 16 Ves. 72. 315, 321 ; and Evans v. L/ewel/i/n, 
 
 (n) Story, 122; Hunt v. Rous- 2 Bro. C. C. 150 ; 1 C.x, 333. 
 
 manierc, 1 Peters. Sup. C. U. S. 1, {p) See Cochrane v. IVU/is, 1 Ch. 
 
 15, 16. 58.
 
 182 
 
 MISTAKE. 
 
 doubtful 
 construc- 
 tion. 
 
 Family 
 com- 
 promises 
 upheld. 
 
 ignorance is not that of a well-known rule of law, but that 
 of a matter of law arising upon a doubtful construction of 
 an instrument. In this case relief may be given (q). But 
 where in such circumstances a fair compromise is entered 
 into without any circumstances of fraud or surprise it will 
 not be afterwards disturbed (r). 
 
 (5.) Especially is this the case where such compromise is 
 of the nature of a fiiniily arrangement (s). In Westby v. W. 
 (t), Lord St. Leonards said : " Wherever doubts and disputes 
 have arisen with regard to the rights of different members of 
 the same family, and fair compromises have been entered 
 into to preserve the harmony and affection, or to save the 
 honour of the family, those arrangements have been sus- 
 tained by this Court ; albeit, perhaps, resting on grounds 
 which would not have been considered satisfactory if the 
 transaction had occurred between mere strangers "(u). Long 
 course of dealing and acquiescence by the parties concerned 
 may suffice to sustain an arrangement of the nature of a 
 family compromise, where there has been no written 
 contract (x). 
 Unless But an agreement cannot be sustained, even as a family 
 
 with fraud, arrangement, if in the least degree tainted with fraud ; 
 there must be full disclosure of all material circumstances 
 known to one of the parties (^), and especially so if the 
 parties are not on equal terms, or there is any confidential 
 relation between them (z). Nor will a family arrange- 
 ment be sustained if one of the parties has entered into it 
 under a simple misunderstanding of his interests, respect- 
 ing which there could be no reasonable doubt (a). Of 
 course such circumstances as threats, or undue influence of 
 any kind, will in these, as in other cases, invalidate an 
 agreement (b). 
 
 {q) Beauchamp v. Winn, G L. R. 
 H. L. 223. 
 
 (r) Piclicring v. P., 2 Beav. 56 ; 
 Naylor v. Winch, 1 S. & S. 564. 
 
 (.s-) Stapilton v. ^S^., 1 Atk. 2. 
 
 (<) 2 Dr. & W, 503. 
 
 («) See Cory v. 6'., 1 Ves. sr. 19. 
 
 («) WiUiauis V. W., 2 Dr. & S. 
 
 378 ; 2 Ch. 294 ; Clifton v. Cock- 
 lurn, 3 My. & K. 76. 
 
 (y) Gordon v. G., 3 Swanst. 400. 
 
 (z) Pusey V. Dcsbouveric, 3 P. 
 Wms. 315. 
 
 (a) Dunnaye v. White, 1 Swanst. 
 137. 
 
 (/-) EUisv. Barlcr, 7 Ch. 104
 
 MISTAKES OF FACT. 183 
 
 Mistakes of expression in the instrument embody iiig- Mistakes 
 such compromises will be relieved against just as similar "^ '^'"^P'"*^^" 
 mistakes occurring elsewhere (c). com- 
 
 With these explanations and limitations, the principle P'^°'^^^'^^" 
 that equity will not relieve against a mistake of law may 
 be safely accepted ; and it will have been observed that 
 those cases in which relief is given do not really amount 
 to exceptions from the principle, since in all of them the 
 relief is grounded not on the mere fact that there has been 
 a mistake, but on some other fact which is, independently 
 of that, efficacious to call forth the remedial power of 
 equity. 
 
 II. Mistakes of Fact 
 
 The inquiry as to the effects of mistakes in matters of Mistake as 
 fact is more complex and important. It must always be ggg^t"^ "" 
 borne in mind that those cases, numerous though they are, 
 in which transactions are deemed void or voidable on the 
 ground of mistake, all constitute exceptions to the general 
 rule, which is that as regards private law, " mistake as 
 such has no legal effects at all " ((?). It will be found 
 that in all cases in which legal effects follow, some other 
 ingredient is present beside the mere fact that one or both 
 of the parties have acted uuder an erroneous belief. In 
 one large class of cases the effect of the mistake is to pre- 
 vent any real contract from being formed at all ; in these 
 the agreements, though seemingly and formally valid, are 
 in effect void. In another, though a valid agreement has 
 been formed, owing to mistake in its expression, an equity 
 is raised for its rectification, which though it could not be 
 formerly effected in the Courts of common law, was pro- 
 vided for in those of equity. A third and important class 
 comprises cases in which application is made to a special 
 and discretionary jurisdiction of equity, in the exercise of 
 
 (c) Ashurst V. Mill, 7 Ha. 502. (d) Pollock, Coutvacts, p. 384, 2ud ed.
 
 184« MISTAKE. 
 
 which Courts of equity are particularly careful that their 
 decrees shall not be productive of hardship. This class 
 applies almost exclusively to suits for specific performance ; 
 and though the classification of the subject here would be 
 clearly incomplete without reference to it, its full discussion 
 falls more appropriately under the heading of specific per- 
 formance (c). 
 
 1. Fundamental mistakes. 
 Where By fundamental mistakes, we mean those the effect of 
 
 prevents a which is to prevent any real contract from being formed 
 contract between the pai'ties. Contract requires consensual agree- 
 
 froin being , . r^ . i i • i 
 
 formed. ment ; and it owmg to some error on one or on both sides 
 the parties have never had a common intention, it follows 
 that no contract is formed. 
 
 Fundamental errors of this description being as effica- 
 cious at common law as in equity to prevent an apparent 
 agreement producing the effects of a legal contract, do 
 not require exhaustive exposition here. It suffices to illus- 
 trate them from cases which from their nature or their 
 accompaniments have usually fallen under the special 
 notice of equity. 
 Mistake as (1.) First, there may be a fundamental mistake as to 
 nature of the nature of the transaction itself Mistakes of this 
 the trans- description may be peculiar to one, or common to both 
 
 parties. 
 Execution An instance of the former is seen where a person exe- 
 mist'ake. ^ cutes a deed or signs an instrument under a mistaken 
 belief as to its contents. Naturally cases of this descrip- 
 tion usually raise questions of fraud as well as of simple 
 mistake ; but it is clear that without fraud such a transac- 
 tion may even at law be invalidated on the ground of 
 mistake alone (rf). A strong illustration of this is aftbrded by 
 a case in which a person executed a mortgage deed under 
 the mistaken belief that it was only a covenant to produce 
 deeds. This mortgage, having been assigned to a pur- 
 
 (c) q. V. p. 603, et seq. C. P. 704, 711 ; Kenmdy v. Oreen, 
 
 [d) Foster v. Macklnnon, 4 L. R. 3 My. & K. 699, 717, 718.
 
 MISTAKES OF FACT. 185 
 
 chaser for value without notice, was nevertheless decreed 
 to have been wholly void, and ordered to be delivered up 
 to be ca,ncelled (e). In this case had the deed only been 
 voidable for fraud, no relief would have been given as 
 against the bond fide purchaser for value. See also Hunter 
 V. Walters (/). 
 
 A fortiori, if in such cases both parties are mistaken as 
 to the nature of the deed or writing, the fact of a mere 
 formal signature will not suffice to establish a contract. 
 
 (2.) Secondly, one of the parties may be mistaken as to Mistake as 
 the person of the other party. Such mistakes are almost 
 necessarily unilateral. It is evident that they are not in 
 all cases fundamental, since in many transactions the per- 
 sonality of the parties is quite immaterial ; for instance, 
 where a person sells goods for ready money, or a railway 
 traveller takes a ticket. But in other cases it is of the 
 very essence of the intention of one of the contracting 
 parties to deal with another particular person, and if so, 
 a mistake as to the person will invalidate the agree- 
 ment ((/); but it is at least questionable whether the same 
 principle applies to deeds (Ji). 
 
 (3.) Thirdly, the error may relate to the subject-matter Mistake as 
 
 /• ,1 . , to subject- 
 
 ot the contract. j^^^tt^J 
 
 If a person intends by his contract to acquire one thing, 
 he cannot be required to accept another. If, however, the 
 mistake is as to a specific article, the agreement in English 
 as in Roman law is not void unless there is a complete 
 difference of substance (i). 
 
 One important class comprised under this heading consists If subject- 
 of those cases in which the subject-matter in the contem- i||\xtst-^° 
 plation of the parties does not in fact exist at the time of ence con- 
 
 -iTTi • 1 • 1-1 ti-act is 
 
 the agreement. Wherein these circumstances the mistake void, 
 is common to both parties, the agreement is void {k). 
 
 (e) Vorley v. Coohc, 1 Gift'. 230. (0 Kennedy v. Panama d;c. Mail 
 
 if) 7 Ch. 75, 88. Co., 2 L. R. Q. B. 580. 
 
 iff) Boidton V. Jones, 2 H. & N. (k) Couturier v. UaMic, 5 H. L. 
 
 564. 673. 
 (/i) Hunter v. Walters, sup.
 
 186 MISTAKE. 
 
 On this principle an apreement for the sale of shares in 
 
 a company is void if, at the time of the agreement, a 
 
 winding-np petition has been presented of which neither 
 
 the vendor nor the purchaser knew (l). Similarly an 
 
 agreement for the sale of a life interest after it has in fact, 
 
 though without the knowledge of the parties, expired, is 
 
 void (rn). 
 
 Not if it is If in such cases the mistake is confined to one of the 
 
 one i)arty° P'^^rtics, the agreement is prima facie valid ; but it will 
 
 usually be found that there is some ingredient of fraud 
 
 involved which will render it voidable at the option of the 
 
 mistaken party ; these cases are quite distinguishable 
 
 from those now under view, 
 
 Mistake as Again, " a material error as to the kind, quantity, or 
 
 to quality q^^^litv of a subiect-mattcr which is contracted for by a 
 
 or quantity ^ / . . . 
 
 when generic description may make the agreement void " (n). 
 ma eria . Here again the agreement is only void in case the error 
 is common to both parties (o). If only one is mistaken, it 
 depends on circumstances presently considered whether or 
 not it is voidable at his option (p). And the further limi- 
 tation must be understood, that the difference is such as 
 in the ordinary course of dealing and use of language 
 amounts to a difference of kind. 
 Eemedy as Where an agreement is void on the ground of funda- 
 a°i-ee- mental error, it is open to either party to bring his action 
 ments. in the Chancery Division to have the transaction declared 
 void, to have any deeds or written instruments executed 
 or signed therein set aside or cancelled, and to be relieved 
 from any possible claims in respect thereof 
 2. Unilateral mistakes as to subject-matter. 
 Agree- Though a strict regard for our classification would re- 
 
 when^oid- ^l^ire US here to deal only with cases in which seeming 
 
 able owing agreements are made void owing to mistake, this is a con- 
 to mistake. • , ^ ±^ • i . • 
 
 venient place to consider certain cases m many respects 
 
 {L) Enimersons Case, 1 Ch. 433. (n) Pollock, Contr. 418. 
 
 (;ni) titrlcldand v. Turner, 7 Ex. (o) ^Staith v. IIu(//u's,6'L.B,.Q,.'B. ^97, 
 208 ; Cochrane v. Williis, 1 Ch. 58. (p) p. 187.
 
 MISTAKES OF FACT. 187 
 
 analogous to them, in which the mistake, though not 
 actually involving fraud, produces a similar effect, and the 
 agreement becomes only voidable at the option of the 
 mistaken party, or perhaps, more strictly speaking, 
 one of the parties is estopped from asserting that it is 
 void. 
 
 This, as we have intimated, is often the case when a Unilateral 
 mistake which, if common to both parties would make the "^^^ ^ ^' 
 agreement void, is in fact confined to one of them. We 
 have not to consider cases in which there is a distinct 
 element of fraud, these being elsewhere investigated ; our 
 inquiry lies on the border line between them, and the 
 cases which have been up to the present occupying our 
 attention. 
 
 The circumstance that one of the parties has entered to be of 
 into an agreement under the influence of a mistake of ^^^''*^ °^^^* 
 fact has no legal effect unless — 
 
 (i.) The fact is material to the transaction, or in other as to a 
 words, is essential to its character. ^ct*'"''^ 
 
 What is or what is not a material or essential fact is a 
 question which scarcely admits of solution in general 
 terms. Perhaps the closest practicable definition is that a 
 fact is said to be material when the formation of the con- 
 tract is conditional upon its existence ; but whatever the 
 general expression employed, the ultimate decision must 
 remain a matter of opinion. It must suffice here to 
 state by way of illustration that defects of title, extensive 
 difference as to the locality of an estate, or as to its 
 extent, will give a claim to a rescission of a contract in 
 equity (q). 
 
 (ii.) The mistake is not due to the negligence of the not due to 
 mistaken party. negh- 
 
 r J ^ gence ; 
 
 Equity will never encourage negligence ; and it accord- 
 ingly will not grant any relief against a mistake of fact, 
 however material, if it be such that the complainant might 
 have avoided it by the exercise of reasonable diligence. 
 
 (2) Story, 141 ; infra, pp. 613, ct seq.
 
 188 
 
 MISTAKE. 
 
 as to a (iii.) The fact is one which the part}^ who has knowledge 
 
 there\s'aii *^^ ^^ '^^ Under an obligation to disclose, 
 obligation This excludes facts the means of information as to which 
 ' are open to both parties ; and cases in which each party is 
 presumed to exercise his own skill and judgment and 
 there is no confidence reposed ; and also facts which are 
 in their nature doubtful, and as to the probabilities of 
 which each may be supposed to calculate in his own dis- 
 cretion {')'). 
 
 It is evident that this qualification almost if not quite 
 amounts to the statement that a unilatei'al mistake is only 
 relieved against when ? non-disclosure by the better in- 
 formed party amounts to fraud (s). 
 
 In cases arising out of transactions voidable on account of 
 unilateral mistake, it must be remembered that equity will 
 not interfere against a person who has an equal claim to its 
 consideration. In these circumstances it will leave the law to 
 prevail. Thus no relief will be granted against a bond 
 fide purchaser for valuable consideration {t). 
 
 3. Mistakes of expression. 
 
 Mistakes of the kind last mentioned could from their 
 nature only occur in mutual agreements. Those to which we 
 now proceed may be found either in agreements or in 
 voluntary dispositions of property. They occur whenever 
 an ag]'eement or disposition is sought to be embodied in a 
 formal instrument, and the instrument is so framed as not 
 to express clearly or truly the intention of the parties or party. 
 
 (1.) At common law as well as in equity the simplest 
 cases of this description have long been provided for by 
 established rules of construction, which it suffices here to 
 refer to in general terms. Thus at law clerical errors and 
 omissions which could be certainly supplied from the con- 
 text, and all mere grammatical mistakes were remedied {ii) ; 
 
 No relief 
 
 against 
 
 persons 
 
 with an 
 
 equal 
 
 equity. 
 
 How far 
 law 
 
 remedies 
 mistakes 
 of expres- 
 sion. 
 
 ()•) Mortimer v. Capper, 1 Bro. 
 C. C. 158 ; 6 Ves. 24. 
 
 (s) See Wr'iyld v. Goff, 22 Beav. 
 207 ; Met. Coantks Soc. v. Brown, 
 26 Beav. 454. 
 
 {t) Poivdl V. Price, 2 P. Wms. 
 535 ; Bavies v. D., 4 Beav. 54. 
 
 (m) Doe d. Leach v. Mickhni, 6 
 East, 486.
 
 MISTAKES OF FACT. 189 
 
 the context of a doubtful expression miglit be referred to 
 to ascertain its meaning (x), and the general intent was 
 alwaj^s regarded as jarevailing over the particular expres- 
 sion (2/). 
 
 (2.) Both at law and in equity indeed the rule has lonsf Oral evi- 
 
 . . . dence. 
 
 been established that oral evidence is not generally ad- 
 missible to vary a written instrument. But notwithstand- 
 ing the existence of a written instrument, such evitlence 'For what 
 might even at law have been adduced to show that there admissible 
 was not in fact any agreement at all (0). In equity ^^ ^a^- 
 the general rule has been subjected to certain modifi- 
 cations which require particular notice. 
 
 Thus in equity oral evidence is admitted to show that In equity, 
 either by accident, mistake or fraud, a written instrument 
 does not truly express the intention and meaning of the 
 parties (a) ; and if accident or mistake is clearly proved by 
 such evidence, or is admitted by the other side, or is evident 
 from the nature of the case, equity will rectify it (h). 
 
 Again, equity has resorted to extrinsic evidence to 
 modify the meaning of general words where there has been 
 reason to suppose that they were not intended to bear 
 their full and natural mea,ning. For instance, in constru- 
 ing a release, the general words are always limited to the 
 matter or matters especially within the contemjilation of 
 the parties at the time when the release was given (c). 
 One of the most important applications of this is seen in 
 cases where a release is executed on the footing of accounts, 
 which are subsequently found to be erroneous (d). 
 
 (3.) Perhaps the most striking illustrations of the juris- Rectifica- 
 diction of equity to rectify instruments which erroneously *^°"j"^ 
 express the intention of the parties thereto, are found in ments. 
 cases respecting the rectification of marriage settlements, 
 
 (x) Brou-nhiff v. Wrl^jJit, 2 B. & 305, 308, 
 P. 13, 26. {b) Davis v. Si/uwmh, 1 Cox, 402, 
 
 (y) Ford v. Beech, 11 Q. B. 866. 404; Fotuler v. >., 4 De G-. & J. 
 
 (■) P)/m V. Campbell, 6 E. & B. 250. 
 370 ; Wake v. Ilarrop, 6 H. & N. (e) L. d: S. W. B. v. Blackmore, 4 
 
 775. L. R. H. L. 610, 623. 
 
 («) Murray v. Parker, 19 Beav. {d) Miller v. Craig, 6 Beav. 433.
 
 190 MISTAKE. 
 
 which cases usually arise when there is a discrepancy 
 between the preliminary articles and the settlement as 
 finally executed. 
 Rules. The principal rules which regulate these cases are clearly 
 
 stated in the leading authority of 
 
 LEGG V. GOLDWIRE, 
 
 [Ca. temp. Talb. 20; 1 W. & T. L. C. 17], 
 
 and are to the following effect : — 
 
 (i.) If both the articles and the settlement were executed 
 before the marriage, and there are discrepancies between 
 them, then the settlement will generally be considered to 
 express the true agreement, and equity will not interfere 
 to make it conform to the articles. 
 
 (ii.) But if, even in this case, the settlement purports to 
 be in pursuance of the articles, then, if there be a discrep- 
 ancy, it will be presumed to have arisen from mistake, and 
 equity will interfere to rectify it (e). 
 
 (iii.) And further, even though the settlement does not 
 upon the face of it purport to be in pursuance of the 
 articles, extrinsic evidence maybe resorted to to show that 
 such was the intention, and that the discrepancy arose 
 from mistake (/). 
 
 (iv.) If the articles preceded the marriage, and the 
 settlement was executed after the marriage, then equity will 
 in all cases consider that the articles express the true 
 agreement, and will rectify the settlement to make it con- 
 form therewith. The principle in this case is that after 
 the marriage the parties are no longer in the same un- 
 fettered position, and that the agToement as expressed when 
 they were free should be regarded as the true one (g). 
 Generally Generally speaking, in cases coming under the third of 
 mus^be these rules, the Court will only interfere on evidence of a 
 common, mistake common to all parties (h), and the extent of the 
 
 (e) West V. Errissey, 1 Bro. P. C. (g) Legg v. Golduire, supra. 
 
 225. (A) Sells v. S., 1 Dr. & Sm. 45 ; 
 
 (/) Bold V. Hutchinson, 5 De G. Jlooke v. Kensington, 2 K. & J. 753, 
 
 M. & G. 558 ; Breackdlanev. Chan- 764 ; Foivler v. F., 4 De G. & J. 
 
 dos, 2 My. & Cr. 711, 739. 265.
 
 KECTIFICATION OF INSTRUMENTS. 191 
 
 rectification required must be clearly ascertained and de- ^^^ "^^^^ 
 
 , , , . . , . defined and 
 
 fined by evidence cotemporaneous with or anterior to the proved, 
 deed (i). But there are cases in which on proof of a clear 
 mistake of one party only, the Court has taken upon itself 
 to rectify a settlement (k), and it is especially disposed to do 
 so by any unfair or underhand dealing on the part of the 
 husband (l). A settlement has indeed been rectified even 
 against previous articles on the settlor's uncontradicted 
 evidence of mistake ())i). 
 
 Courts of equity will not reform a voluntary deed as Eectifica- 
 against the grantor (■??), nor will they decree a settlement voluntary 
 as against purchasers for valuable consideration (including deeds, 
 mortgagees) who have had no notice of the articles ; but 
 if they have had such notice, a settlement may be decreed 
 against them (o). 
 
 (4.) The jurisdiction of equity to rectify mistakes in wills Rectifica- 
 rests on widely different principles. In no case can oral ^l^" 
 evidence or any evidence dehors the will be admitted to 
 vary or control the terms thereof. It is only when a mis- 
 take is apparent on the face of the will itself that the 
 Court will interfere ; oral evidence may be resorted to 
 to explain a latent ambiguity. 
 
 Thus where a residue was directed to be divided between 
 the testator's " two daughters equally," and in fact he had 
 three daughters when the will was made, it was held that 
 the three were entitled to share the property (p). A mis- 
 take in computing the amount of a legacy has similarly 
 been set right (q). 
 
 A mere misdescription of a legatee will not defeat a 
 legacy ; but if a legacy is given to a person for a particular 
 motive dependent on a supposed character which he has 
 falsely assumed, he will not be suffered to demand his legacy. 
 
 (/) Bradford v. Romney, 30 Beav. 628. 
 
 431. (o) Davies v. D., 4 Beav. 54. 
 
 (h) Harbidfje v. Wogan, 5 Ha. 258. (p) Stebhiny v. Walker, 2 Bro. C. 
 
 {I) Clark V. Gird wood, 7 Ch. D. 9. C. 857. 
 
 (m) Smith v. Iliffe, 20 Eq. 660. (q) Milncr v. M., 1 Ve.". sr 106. 
 (n) PhlUhpaon v. Kerry, 32 Ijeav.
 
 192 MISTAKE. 
 
 This was the case where a woman gave a legacy to a man 
 supposing him to be her husband, whereas in fact the mar- 
 riage was bigamous and void (/•). Vice versa, if a legacy is 
 revoked upon a mistake of facts, for instance, on the 
 supposition that the legatee is dead, equity will grant 
 relief (s). But in cases of this description, whether the 
 suit be to set aside or to establish a legacy on the ground 
 of mistake, the Courts proceed with great circumspection. 
 It does not follow that because one motive is expressed or 
 is apparent, that the legacy is intended to depend upon it 
 alone. The testator may be in some degree moved to 
 confer a benefit by an erroneous supposition of relation- 
 ship between himself and the beneficiary ; but never- 
 theless the primary motive may be a personal love 
 and affection which exist altogether apart from the fact 
 of such relationship ; and if this seems to be the case, 
 equity will not, on mere proof that the supposed relation- 
 ship did not exist, interfere to take away the benefit {t). 
 Still less will proof that a testator has formed a false 
 estimate of the character of a person form a ground for 
 interfering with his testamentary dispositions. Equity 
 never assumes to punish moral delinquencies by taking 
 away civil rights (u). 
 
 (5.) Defective execution of powers. 
 
 One of the most useful heads of the jurisdiction of 
 equity in relieving against accident and mistake, is its 
 power to interfere in aid of the defective execution of 
 powers. The principles on which it acts in these cases 
 have been thus expressed by an eminent authority: " When- 
 ever a man having power over an estate, whether owner- 
 ship or not, in discharge of moral or natural obligations, 
 shows an intention to execute such powei% the Court will 
 operate upon the conscience of the heir (or other person 
 benefiting by the default) to make him perfect this in- 
 
 (r) Kennell v. Ahhott, 4 Ves. 808 ; [t) Kenvell v. AUott, sup. 
 
 Giles V. G., 1 Keen, 692. («) Giles v. G., sup. 
 
 (s) Campbell v. French, 3 Ves. 321.
 
 DEFECTIVE EXECUTION OF POWERS. 193 
 
 tention " {x). It was on the same principle that when a 
 surrender of copyholds to the use of a will was legally- 
 requisite in order to an effectual testamentary disposition 
 thereof, the want of such surrender was supplied in equity ; 
 but this interference has long been rendered unnecessary 
 by statute (?/). 
 
 The investigation of this subject resolves itself into the 
 following inquiries : — 
 
 (i.) To what powers the principle applies ; (ii.) What 
 defects or mistakes will be relieved against ; (iii.) In 
 whose favour equity will so interfere. 
 
 (i.) Generally speaking it matters not what is the nature To what 
 of the power respecting which the assistance of equity is p^^clpie^'^ 
 sought. The cases in which it is material are exceptional, applies. 
 Thus powers of sale, of raising portions, of jointuring, of re- 
 voking uses, and of appointment generally, are continually 
 the subjects of equitable relief. 
 
 Powers of leasinof were at one time thought to form Powers of 
 
 . 1 -■ (3- 
 
 an exception to the general rule, but it has long been '^''^'''"»' 
 established that this is not so, and that a defective execu- 
 tion may in this as in other cases be aided (z). In certain 
 cases of deviation from the terms of a power of leasing 
 there is a special relief afforded to the intended lessee by 
 statute (a), and such relief is available even if the power 
 has been derived under an Act of Parliament. 
 
 But generally speaking powers arising under an Act of Powers 
 Parliament are construed strictly, and a defect in their ^"^'"S 
 
 J ' under an 
 
 execution will not be relieved against in equity (h). Act of 
 
 (ii.) What defects Avill be relieved against. maut. 
 
 The first and most essential condition of relief against a intention 
 
 defect in the execution of a power is that there shall have "^"^*^ ^^'^ 
 
 ^ clear, 
 
 been a clear intention on the j^art of tlie donee of the 
 power to execute it (c). 
 
 {x) Chapmmi v. Gibson, 3 Bro. C. 345. 
 
 C. 229, per Lord Alvanley. (a) 12 & 13 Vict. c. 26, 13 & 14 
 
 (y) 55 Geo. III. c. 192, 1 Vict. c. Vict. c. 17. 
 
 26. (b) Roswdl's Ca., per Hutton Ro. 
 
 (.r) Shannon v. Brachtreef, 1 S. & Abr. 379, fol. 6 ; Anon., Freem. 2J4. 
 
 L. 52 ; Boivdl v. Deio, 1 Y. & C. Ch. (c) Garth v. Townseml, 7 Eq. 220. 
 
 O
 
 194 
 
 MISTAKE. 
 
 and con- 
 formable 
 to the in- 
 tention of 
 creator of 
 the power. 
 
 Defects of 
 form 
 relieved 
 asrainst. 
 
 Substitu- 
 tion of a 
 will for a 
 deed. 
 
 Equitable 
 appoint- 
 ment. 
 
 Secondly, the granting of relief against a defective 
 execution is always conditional upon the general rule that 
 equity will not assist in defeating the intention of the 
 person creating the power. It will not therefore dispense 
 with any conditions imposed upon its execution which are 
 not merely formal. Thus if the consent of any person is 
 required, a power exercised without such consent will not 
 be supported (cZ). And if a given time is prescribed 
 within which the power must be exercised, this direction 
 must be complied with (e). Still less will equity assist in 
 setting up a defective execution which amounts to a 
 breach of trust (/). 
 
 The defects to which assistance of equity is afforded 
 may be described generally as defects of form. The rule 
 is that where an intention to execute the power is mani- 
 fest, a mere non-compliance with prescribed forms will be 
 remedied {g). 
 
 Perhaps the most conspicuous illustration of the rule is 
 the case in which a power, directed to be exercised by 
 deed only, is in fact executed by will. This is regarded as 
 a merely formal variation, and is relieved against (Ji). But 
 the converse case is different ; a power directed to be 
 exercised by will only cannot effectually be exercised by 
 deed ; for a deed being an irrevocable instrument, to allow 
 it to be used instead of a will would be to depart in sub- 
 stance from the intention of the donor of the power {i). 
 
 Another large class of cases in which relief is afforded 
 comprises those in which there has been an appointing 
 instrument competent on the general principles of equity, 
 but ineffectual at law ; as where the donee of a power has 
 covenanted or agreed to execute it (Ic), or has given a 
 
 id) Lawrtnson v. Butler, 1 S. & 
 L. 13. 
 
 (e) Cooper v. Martin, 3 Ch. 47. 
 
 (/) Mortlock V. Buller, 10 Ves. 
 292, 317. 
 
 (g) Shannon v. Bradstreet, 1 S. & 
 L. 63 ; FothergiU v. F., Freem. 256. 
 
 (h) Toilet V. T., 2 P. Wms. 489 ; 
 Sneed v. 8., Amb. 64. 
 
 (0 Reid V. Sheryohl, 10 Ves. 370; 
 Adney v. Field, Amb. 654. 
 
 (k) Fothevjill V. F., sup. ; MorthrJ; 
 V. Buller, sup.
 
 DEFECTIVE EXECUTION OF POWEES. 195 
 
 written promise to grant an estate, which he can only fulfil 
 by the exercise of a power (/). A recital in a deed has 
 been considered a sufficient indication of intention to 
 amount to an equitable execution (rii). 
 
 Other defects more formal still are d fortiori aided ; As to 
 for instance, the presence of less than the prescribed num- witnesses. 
 ber of witnesses, or an omission to seal an instrument 
 which the donor of the power has directed to be signed and 
 sealed (n). But the Wills' Act itself prevents any relief 
 being given in case of non-compliance with its pro- 
 visions (o). 
 
 By 22 & 28 Vict. c. 35, s. 12, it is now provided that a 
 deed executed in the pi^esence of and attested by two or 
 more witnesses, shall so far as respects execution and attest- 
 ation be a valid execution of any power of appointment 
 by deed, notwithstanding that the instrument creating the 
 power shall have required some additional or other forms 
 of execution and attestation. This enactment covers 
 many cases in which relief was formerly purely equitable. 
 
 Where trustees have a common power of sale over land, Reserva- 
 
 , , • 1 r • 1 1 IT • ^ 1 tions under 
 
 and they execute it deiectively by selling without the powers of 
 timber or with a reservation of the minerals, the Court • 
 cannot, apart from authority conferred on it by statute, 
 remedy the defect (jo). But now, in the case of a reserva- 
 tion of timber, the Court is empowered, by 22 & 23 Vict. 
 c. 35, s. 13, to aid the defect in its discretion, at the pur- 
 chaser's expense ; and by 25 & 2G Vict. c. 108, unless in the 
 instrument creating the powder a reservation of minerals is 
 expressly forbidden, no sale, exchange, or partition made in 
 exercise of the power is to be deemed invalid merely on the 
 ground that the power did not expressly authorise such 
 reservation ; and hereafter such reservation may be made 
 
 (I) CmnplcU V. Leach, Arab. 740 ; (n) Wade v. Pa;/et, 1 Bro. C. C. 
 
 London Chartei-cd Bankv. Lemp'iere, 363; 31orse v. Martin, 34 Eeav. 
 
 4 L. K. P. C. 572. 500. 
 
 (m) Wilson V. Piygott, 2 Ves. jr. (o) 1 Vict. c. 2G, s. 10. 
 
 35i ; C'uni/ni/Jiaine v. Anstruthcr, (p) Oockerd/ v. Cliolmcly, 1 CI. & 
 
 2 L. R. Sc' & U. 223. F. 60, 1 R. & M. 418. 
 
 o2
 
 196 MISTAKK. 
 
 by trustees and others, inclnrling mortgagees, with the 
 sanction of the Court, to be obtained on petition (q). 
 Non-exe- It is clearl}^ settled that the principle which supplies a 
 reHeTecr* defect in the execution of a power does not extend to a 
 against, non-execution. Thus if a person has been prevented from 
 effecting an execution or an attempted execution by any 
 accident such as sudden illness or death, there is no juris- 
 diction whatever to take the property from those entitled 
 in default of appointment (r). The only possible exception 
 to this would be a case in which execution was prevented 
 by fraud, the general rule being that equity considers that 
 as done which has been fraudulently prevented from being 
 done. But there does not seem to be any express decision 
 on the point (s). 
 
 (iii.) In whose favour equity will interfere. 
 
 It has in many places been observed that equity will 
 
 not interfere in favour of pure volunteers ; and that 
 
 Relief principle applies here. It requires at least a meritorious 
 
 purchasers, consideration to support the claim of the person seeking 
 
 relief. 
 
 The strongest claim is that of a purchaser, which term 
 
 creditors, includes a mortgagee and a lessee (t). Creditors are also 
 
 charities, entitled to relief (it), and charities, which are generally 
 
 wife, favoured in equity (x). In the leading case of Toilet v. 
 
 Toilet (y) similar assistance was afforded in favour of a 
 
 wife ; a legitimate child is in the same position (z) ; and 
 
 in these cases it matters not that the claim is made upon 
 
 a meritorious consideration only, as, for instance, upon a 
 
 provision made after marriage («) ; nor is the relief barred 
 
 by the fact that the wife or child is otherwise provided 
 
 for {h). 
 
 (q) Re Beaumont, 12 Eq. 86. Camphell v. Leach, Amb. 740. 
 
 (r) Toilet V. T., 2 P. Wms. 489 ; («) Wilkes v. Holmes, 9 Mod. 485. 
 
 Bucicell V. Blenhhorn, 5 Ha. 131, [x) Innes v. Sayer, 7 Ha. 377. 
 
 141. {(/) Sup. 
 
 (s) See Middleton v. M., 1 J. & {:) Sneed v. S., Amb. 64. 
 
 W. 94. («) Jleri-ey v. ff., 1 Atk. 567. 
 
 {t) Fothertiiil v. F., Freem. 256 ; [h] Ibid. ; Chapman v. Gibson, 3 
 
 Taylor V. meelcr, 2 Vern. 564 ; Bro. C. C. 229.
 
 i 
 
 DEFECTIVE EXECUTION OF POWERS. 197 
 
 But in the absence of some natural or moral obligation 
 on the part of the donee of the power to provide for the 
 person in whose favour the defective execution has been 
 made, no aid will be given (c). Thus a husband (d), a No relief 
 grandchild (e), and collateral relations (f) have no title to band ^" 
 relief; and d fortiori a volunteer, even though he be the grandchild, 
 creator of the power himself (g). Voi'un- 
 
 The interference of equity is also subject to the further *^®^^- 
 
 condition that it will not be afforded if the person entitled 
 
 in default of appointment has a claim on the donee equal ^^ against 
 -^ ^ '■a, person 
 
 to that of the person who seeks to have the execution having an 
 aided (h). In other words, as between equal claimants, l^^^^y. 
 equity will not interfere. This limitation is chiefly illus- 
 trated by cases in which a child has been entitled in 
 default of appointment, and the effect of the appointment 
 would be to leave him totally unprovided for (/). 
 
 (c) Farwell, 276. (:j) Watts v. BuUas, 1 P. Wms. 
 
 (d) Moodie v. Eeid, 1 Madd. 516. 60, note. 
 
 (e) Tudor v. Anson, 2 Ves. sr. (A) Farwell, 277. 
 
 582. (0 Chapman v. Gibson, siqy. ; 
 
 (/) Goodivyn v. G., 1 Ves. sr. Morse v. Martin, 34 Beav. 500. 
 228.
 
 198 
 
 ACCIDENT. 
 
 Accident 
 defined. 
 
 Distin- 
 guished 
 from 
 mistake. 
 
 Jurisdic- 
 tion to 
 relieve 
 condi- 
 tional on 
 defect of 
 legal 
 remedy. 
 
 Section II. — AcciDENr. 
 
 Definition. 
 I. Extent of remedy at Law. 
 II. Characteristics of remedy in Equity. 
 
 Accident, in the sense in which the word is used in Courts 
 of equity, lias been defined as comprising " such unforeseen 
 events, misfortunes, losses, acts, or omissions, as are not 
 the result of any negligence or misconduct in the party" (/t;). 
 
 The distinction between accident and mistake is manifest 
 and important. Mistake has reference to a state of things 
 at the time at which the contract or other transaction in 
 question takes place. Accident refers to some event which 
 occurs subsequently to the transaction. Mistake is essen- 
 tially subjective ; it indicates a mental condition of one or 
 both of the parties concerned. Accident is objective ; it 
 relates to facts Avholly external to the parties. Mistake 
 affects the quality or character of the transaction itself 
 Accident introduces some modification in the remedy which 
 would otherwise be available, or gives rise to some particular 
 claim for relief 
 
 The jurisdiction of equity to grant relief in certain cases 
 of accident is of very ancient date. In its inception it only 
 extended to cases in which no adequate relief was attainable 
 in a Court of law. From time to time Courts of law have 
 acquired new powers of granting relief; but in this as in 
 other blanches of equity, the jurisdiction having once arisen 
 was never afterwards affected by the increased powers of 
 the law. The study of equity, therefore, still requires an 
 examination of the jurisdiction as formerly contrasted with 
 that of common law. 
 
 {k) Story, 78.
 
 REMEDY AT LAW. 199 
 
 I. Remedy at Laiu. 
 
 In the iuquiry, tlien, whether in any particular case of Extent of 
 accident, equity had jurisdiction to grant relief, the first H^^^ ^ ^ 
 question was whether there was an adequate remedy at law. 
 To answer this a brief resume of the legal jurisdiction in 
 cases of accident is required. 
 
 1. Courts of law have always recognised the j)lea of "vis Vis mahr. 
 major," or " the act of God." These terms are not indeed 
 understood in a wide sense; but only as including "events 
 which as between the parties, and for the purpose of the 
 matter in hand, cannot be definitely foreseen or con- 
 trolled"©. 
 
 Thus where the performance of a contract depends on Destmc- 
 the existence of a specific thing, and by the accidental subject- 
 destruction of that thing j)erformance becomes impossible, matter of 
 the contract is no longer enforceable at law (^n). The law 
 in such a case implies a condition that the contract shall be 
 off if a thing necessary to its performance perishes without 
 default of the contractor. 
 
 Similarly a contract for a future specific product is or non- 
 deemed at law to be conditional on such product eventually thereof. 
 coming into existence. For instance, a contract to deliver 
 200 tons of a particular crop of potatoes was held to be 
 2yro tanto discharged by a failure of the crop to reach that 
 amount {n). 
 
 Thus again, a contract for personal service is deemed to Personal 
 be conditioned upon the continuance of the life and health 
 of the contracting party (o). 
 
 It scarcely need be said that these principles have no Warranty 
 application where there is a warranty or express covenant ^^^^ ||ig.' 
 against the loss or destruction of the thing in question, tinguished 
 In such cases the destruction being evidently contemplated 
 
 (?) Pollock, Contr. 361-2. Q. B. 462 ; 1 Q. B. D. 258. 
 
 (m) Taylor v. Caldwell, 3 B. & S. (o) Farmw v. Wilson, 4 L. E. 
 
 826. C. P. 744 ; Boast v. Firtlt, ibid. 1. 
 (w) HowtU V. Coupkmd, 9 L. E.
 
 200 
 
 ACCIDENT. 
 
 destruction 
 of deeds. 
 
 Bonds. 
 
 and expressly provided for, does not fall within the 
 definition of an accident ; and we shall observe that in this 
 respect there is no distinction between equity and law. 
 Loss and 2. In many cases the loss or destruction of deeds was 
 remediable at law, evidence being admitted of the loss or 
 destruction and of the contents (p). But in the case of 
 bonds the legal remedy was long inadequate, owing to the 
 technical rule that the defendant was entitled to demand 
 that it should be read in open court : in other words, 
 liTojert and oyer of the bond were necessary to its enforce- 
 ment. Hence an equitable jurisdiction to grant relief in 
 such cases arose, which, as usual, has not been displaced by 
 the amendment of the law in the same direction (g). 
 
 3. A bill or note which was not negotiable might, it seems, 
 notwithstanding its loss or destruction, have been proved 
 and sued upon at law (z-) ; but an acceptor of a negotiable 
 bill or note could not have been compelled to pay it to any 
 one who could not deliver it up («). By 17 & 18 Vict. c. 
 12.5, s. 87, it is, however, enacted that "in any action 
 founded upon a bill of exchange or other negotiable instru- 
 ment, it shall be lawful for the Court or a judge to order 
 that the loss of such instrument shall not be set up, pro- 
 vided an indemnity is given to the satisfaction of the Court 
 or judge, or a master, against the claims of any other person 
 upon such negotiable instrument." But this extension of 
 the legal remedy did not, of course, affect the equitable 
 jurisdiction which had before arisen. 
 
 Bills, 
 notes, 
 
 17 &18 
 Vict. c. 
 125. 
 
 II. Remedy in Equity. 
 
 These few illustrations will perhaps suffice to indicate, 
 as far as our present purpose requires, the extent and 
 character of the legal jurisdiction to grant relief in cases 
 
 (p) Whitfield V. Favsset, 1 Ves. 
 sr. 387, 392. 
 
 (q) C. L. Proc. Act, 1852, 15 & 16 
 Vict. c. 76, s. 55. 
 
 (r) Charnlcy v. Grundy, 14 C. B. 
 
 608, 614 ; Wain v. Baiky, 10 Ad. & 
 E. 616. 
 
 (s) Hansard v. Robinson, 7 B. &C. 
 90 ; Ramuz v. Croicc, 1 Ex. 167.
 
 REMEDY IN EQUITY. 201 
 
 of accident. From them we may ascertain whether or 
 not the first condition of equitable relief, namely, the 
 inadequacy of the legal remedy, is complied with. 
 
 There is a second condition, equally important ; Second 
 namely, that the party seeking relief must show a consci- [^ con- '^ 
 entious title thereto. scientious 
 
 If, therefore, the party seeking relief has been guilty of relief, 
 gross negligence, or of other misconduct in the transaction. Effect of 
 he cannot successfully appeal to equity (t). Or if both or mfs- 
 parties stand upon an equal footing in equity, in accord- conduct, 
 ance with the common maxim, equity will not interfere equ"\.'^^ 
 with their legal position. Thus no relief will be given 
 against an heir-at-law where accident has prevented the 
 making of a will, or the will has been imperfect (u). And, 
 generally, against a bond fide purchaser for value without 
 notice, a Court of equity will not interfere on the ground 
 of accident {x). 
 
 On similar grounds equity will not relieve against Matters of 
 accident in matters of positive contract, where the possi- contract, 
 bility of the accident may fairly be considered to have 
 been within the contemplation of the contracting parties. 
 Thus a lessee who covenants to pay rent, or to keep the 
 demised premises in repair during a given term will remain 
 bound by his covenants as well in equity as at law, not- 
 withstanding an accidental destruction of the premises; 
 for such express contracts indicate an intention to secure 
 the lessor against the consequences of accident ; or at 
 least it may be said that the lessee has been guilty of negli- 
 gence in not protecting himself, by requiring exceptions 
 from the general liability which he has deliberately under- 
 taken [y). 
 
 Bearing in mind these two leading principles on which 
 the equitable jurisdiction in matters of accident rests, we 
 
 (t) Exp. Greemvai/, 6 Ves. 812. Story, 108. 
 
 (u) WJiitton V. Russell, 1 Atk. (//) Bullock v. Dommitt, 6 T. R. 
 
 148 ; 1 Mad. 46 ; Story, 106. 650 ; P/jin v. Blackburn, 3 Ves. 34, 
 
 {x) Maiden v. Merrill, 2 Atk. 8 ; 38 ; Story, 101.
 
 202 ACCIDENT. 
 
 are now prepared to notice in greater detail some parti- 
 cular instances of its application. 
 
 1. We have already briefly observed the nature and 
 
 limits of the jurisdiction of Courts of law in the case of lost 
 
 deeds and other instruments. We shall now investigate 
 
 that of equity as dealing with the same class of cases. 
 
 Relief in Equitable interposition is very common and very be- 
 
 Sit'ifouds iieficial in the case of lost bonds. Not only was there claim 
 
 to relief on the ground that originally the Courts of law 
 
 refused to dispense with the profert and oyer of the bond, 
 
 but there was the further ground that Courts of equity 
 
 alone had the power of imposing just conditions on the 
 
 party seeking relief. The maxim, " He who seeks equity 
 
 must do equity," is conspicuously applicable to such cases ; 
 
 Indem- and equity gives effect to it by requiring a plaintiff who 
 
 "^ ^' seeks to enforce a bond while alleging its loss, to give a 
 
 Proof of suitable bond of indemnity (0). The procedure of equity 
 
 oath*^" also had the advantage of enabling it to require the 
 
 plaintiff to maintain the fact of the alleged loss by 
 
 affidavit (a). 
 
 Former There was formerly a distinction between the position 
 
 bet^^eeir"^ of a plaintiff merely seeking discovery and that of one 
 
 suit for ^,}-^Q 0^^ \\yQ same time asked for relief. Where the plaintiff 
 
 discovery n t- • i i i t • i 
 
 and for asked Only for discovery equity would make a decree with- 
 rehef. ^^^ ^^^^, affidavit of loss or offer of indemnity (6), the 
 ground of the distinction being that in suits for discovery 
 the interference of equity was merely auxiliary, and did 
 not interfere at all with the original jurisdiction of the 
 Courts of law. Under the new procedure, however, the 
 reason of the distinction has disappeared, and the distinc- 
 tion itself become of no importance (c). 
 Lost title 2. Another illustration of the superiority of the relief 
 afforded by equity is supj)lied by those cases in which a 
 title deed of land has been destroyed or concealed, and the 
 
 (2) Exp. Greenway, 6 Ves. 812 ; {h) Dormer v. Fortescue, 3 Atk. 
 
 E. I. Company v. Boddam, 9 Ves. 132 ; Walmsley v. Child, 1 Ves. sr. 
 
 464. 344. 
 
 (a) Exp. Greemuay, sup. (r) Jud. Act, 1873. Ord. XXXI. 
 
 deed
 
 REMEDY IN EQUITY. 203 
 
 suffering party does not know which alternative is correct. 
 In such a case equity can decree possession of the land to 
 the plaintiff until the defendant shall either produce the 
 deed or admit its destruction (d). Courts of law having 
 had no power to put a defendant upon such terms, could 
 afford no adequate relief in such a case. On similar princi- 
 ples a plaintiff in possession might have had his possession 
 established under a lost deed in a suit for discovery (e). 
 
 3. In the case of lost negotiable instruments, as in that l^-^st nego- 
 of lost bonds, a Court of equity was the proper forum in struments. 
 which to seek relief, because of its power to provide for 
 
 an adequate indemnity to protect the defendant (/). 
 
 4. We have observed that contracts of personal service Contracts 
 were at law deemed to be conditioned on the life and service, 
 health of the contracting parties. In equity this princij)le 
 
 is carried further. Thus where an apprentice has paid a 
 premium in consideration of receiving instruction for a 
 certain time, and before the expiration thereof the master 
 becomes bankrupt, equity will apportion the premium and 
 decree repayment of that for which, owing to the bank- 
 ruptcy, the consideration has failed ((/). 
 
 5. Other cases of accident fall still more peculiarly Payments 
 within the cognisance of Courts of equity. Thus iftOTs^^&cT' 
 an executor or administrator pays the debts and legacies 
 
 of his testator or intestate in full, in confidence that the 
 
 assets are sufficient, but it is eventually found that from and acci- 
 
 . T , .. ,-, 1 r • , dental loss 
 
 some accident or untoreseen occurrence they are dencient, „£ te^t^- 
 equity alone can relieve; and it will do so where the *°'''^ P''°" 
 
 . . . perty. 
 
 deficiency has resulted from an innocent accident or 
 mistake (h). 
 
 Instances of this kind are supplied by cases in which 
 the goods of the testator have been stolen without any 
 
 (d) Whitfield V. Fausset, 1 Ves. ([/) Hale v. Webb, 2 Bro. C. C. 
 sr. 392. 78. 
 
 (e) Dormer v. Forfescue, sujh (/*) Edwards v. Freeman, 2 P. 
 (/) Hansard v. Rolnnsnn, 7 B. & Wnis. 447; Hawkins v. Bay, Amb. 
 
 C. 90 ; Glynn v. B. of Ewjland, 2 160. 
 ib. 38.
 
 204 
 
 ACCIDENT. 
 
 Anniuties 
 accident- 
 ally re- 
 duced. 
 
 negligence on the part of his executor (i), or have been 
 destro^'Cd, or damaged by fire, or otherwise (k) ; and also 
 by cases in which an executor has reckoned as an asset a 
 debt which he supposed to be still due, but which proves 
 in fact to have been paid to the testator (/). 
 
 6. If, again, an annuity given by a will is secured by 
 public stock which is afterwards reduced by Parlia- 
 ment (on), or becomes unproductive owing to a revolu- 
 tion (n), equity will grant relief as against the residuary 
 legatees on the ground of accident. 
 
 (i) Jones V. Lewis, 2 Ves. sr. 
 240. 
 
 {/t) Clough V. Bond, 3 My. & Cr. 
 490, 496. 
 
 (/) Pooley V. Jlay, 1 P. Wms. 355. 
 {m) Davies v. Wattier, 1 S. & S. 
 463. 
 
 (w) Hatchett v. Pattle, 6 Madd. 4.
 
 205 
 
 CHAPTER IV. 
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 Principle of granting relief. 
 Peachy v. Somerset. 
 Sloman v. "Walter. 
 I. Relief when given. 
 II. Limits of the jyrinciple. 
 
 Relief against penalties and forfeitures was originally 
 obtainable exclusively in equity, and this having been so, 
 its jurisdiction remains, notwithstanding that its principles 
 have from time to time been embodied in statutes, and thus 
 become operative in Courts of Common Law ; and whatever 
 distinctions between the two jurisdictions continued up to 
 the passing of the Judicature Act, 1878, have by that 
 statute been rendered unimportant. 
 
 There are two leading authorities on the doctrine of 
 relief against penalties and forfeitures. In 
 
 PEACHY V. THE DUKE OF SOMERSET, 
 
 [1 Strange, 447 ; 2 W. & T. L. C. 1100,] 
 
 a person having incurred a forfeiture of a copyhold by 
 making leases contrary to the custom of the manor, and 
 by felling timber, digging stones, and grubbing up hedges, 
 although he offered by his bill to make a recompense, was 
 held not entitled to relief in equity. It was expressed 
 that the true ground of relief against penalties was from
 
 206 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 the original intent of the case ; if the penalty was designed 
 only to secure money, then on recompense being given the 
 Court would grant relief. But in 
 
 SLOMAN V. WALTER 
 [1 Bro. C. C. 418 ; 2 W. & T. L. C. 1112] 
 
 a somewhat wider view was taken ; and the rule was laid 
 down that " where a penalty is inserted merely to secure 
 the enjoyment of a collateral object, the enjoyment of the 
 object is considered as the principal intent of the deed, 
 and the penalty only as occasional, and therefore only to 
 secure the damage really incurred." So that whenever 
 this is the case, even though the object of the penalty may 
 be something more than to secure a payment of money, 
 equity is wont to decree compensation in lieu thereof, to 
 the extent of the damage really sustained. 
 Relief not The test question therefore becomes, whether compensa- 
 fined to ^io^^ "2^^ effectually be made. Penalties to secure pay- 
 penalties rnents of money are doubtless the simplest cases, since in 
 
 to secure . , . 
 
 money them payment with interest is a complete compensation. 
 
 payments. |3^^^ there are other cases in which dcimages for a non- 
 compliance with a condition to perform some collateral 
 act may be assessed with sufficient accuracy to render 
 compensation equitable, and thus to avoid the extreme 
 consequences of forfeiture. 
 
 We shall first illustrate the operation of the princij)le 
 by referring to those classes of cases in which it is most 
 frequently applied ; and secondly, shall indicate the limits 
 of the principle by referring to certain cases in which it 
 has not been considered applicable. 
 
 I. Relief when given. 
 
 Bonds. 1. Among the most frequent cases in which in the early 
 
 times of English equity this jurisdiction was exercised, 
 were the cases of common bonds, in which the payment of 
 a given sum and interest was secured by a conditional
 
 RELIEF WHEN GIVEN. 207 
 
 penalty of double the amount, or some other excessive 
 sura. Relief in such cases was continually given in e([uity 
 on the terms of paying the principal, interest, and costs, 
 until the statutes 8 & 9 Will. III., c. 11, and 4 & 5 Anne, 8 & 9 
 c. 16, rendered applications to equity for this purpose no c. i{. 
 longer necessary. i & 5 
 
 The same principle naturally applies where a penalty is c. 16.' 
 inserted in any deed to secure a payment of money, for C'ovenarits 
 instance, purchase money (a). And relief in cases of this 
 description is now provided for by the Common Law C. L. P. 
 Procedure Act, 1860 (6), which permits payment into ^''*' ■^^^^• 
 Court to be pleaded by leave of the Court or a judge in 
 any action on any bond which has a condition to make 
 void the same ujDon payment of a lesser sum at a day or 
 place certain (c). 
 
 2. Relief is, as we shall elsewhere observe, also given Interest 
 when the penalty takes the form of requiring a higher rate ^Ja^g"^*^" 
 of interest in case the principal or interest shall not be paid 
 
 at the stated time or times (d) ; but if the agreement is 
 that on condition of punctual payment a lower rate of 
 interest shall be payable, then on breach of this condition 
 the higher rate may be insisted on, and there is no equity 
 to interfere with the claim (e). 
 
 In short it may be regarded as a principle of universal 
 application that where the payment of a smaller sum is 
 secured by a larger, the larger sum will be regarded as a 
 penalty, the enforcement of which will be relieved 
 against (/). 
 
 3. Where in a lease there was a clause of forfeiture for Forfeiture 
 nonpayment of rent at a stated time, equity always held pal'm'^Jiit 
 that the right of entry was only intended as a security for of rent, 
 the rent, and continually relieved against it on the lessee's 
 paying the arrears of rent accrued due with interest 
 
 (a) Exp. Ilulse, 8 Ch. 1022. (e) Nicholh v. Maynard, 3 Atk. 
 
 (6) 23 & 24 Vict., c. 126. 519. 
 
 (c) Sect. 25. (/) Astley v. Weldon, 2 B. & P. 
 
 ((/) Stanhope v. Manners, 2 Ed. 350-355. 
 199, infra p. 218.
 
 208 
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 Mort- 
 gages. 
 
 Penalties 
 to secure 
 collateral 
 acts. 
 
 Covenants 
 to insure. 
 
 22 & 23 
 Vict. c. 35, 
 s. 4. 
 
 thereon. This principle has now long been recognised by 
 statute, but its application has been thereby limited to 
 cases in which rehef is sought within six months after 
 execution [g). 
 
 4. Similarly relief is continually given against the for- 
 feiture of a mortgaged estate by default of payment at the 
 time named in the deed ; the mortgagor having neverthe- 
 less an equity to redeem on payment of the principal, 
 interest and costs. 
 
 5. The case of Sloman v. Walter (A) affords another 
 illustration of relief against a pecuniary penalty to secure 
 a collateral act. There the condition of the penalty was 
 that the defendant should have the use of a particular 
 room in a house whenever he thought proper ; on his 
 seeking to recover the penalty, he was restrained by 
 injunction on the bill of the plaintiff, pending the decision 
 of an issue to ascertain the actual amount of damage 
 sustained. In a similar case, a bond with a penalty of 
 £600 not to carry on business save as therein specified 
 within a given area, was relieved against, and actual 
 damages only awarded (i). 
 
 0. Apart from legislation, Courts of equity had no power 
 to relieve against forfeiture for breach of a covenant to 
 insure, on the ground that the risk occasioned was of such 
 a nature as to be incapable of estimation in damages (k). 
 But owing to the hardship often occasioned by the strict 
 interpretation of such covenants, it was enacted (I) that 
 "a Court of equity shall have power to relieve against 
 a forfeiture for breach of a covenant or condition to insure 
 against loss or damage by fire, w^here no loss or damage by 
 fire has happened, and the breach has in the opinion of the 
 Court been committed through accident or mistake, or 
 otherwise without fraud or gross negligence, and there is 
 an insurance on foot at the time of the application to the 
 
 (i/) 4 Geo. II. c. 28 ; 15 & 16 
 Vict., c. 76, ss. 210, 211 ; 30 & 31 
 Vict. c. 59. 
 
 (A) Su;pra, p. 206. 
 
 (/) Hardy v. iMarthi, 1 Bro. C. C. 
 419, n. 
 
 (k) Green v. Brichjes, 4 Sim. 96. 
 (0 22 & 23 Vict. c. 35.
 
 RELIEF, WHEN GIVEN. 209 
 
 Court, in conformity with the covenant to insnre, upon 
 such terms as to the Court may seem fit " (m). By s. 6 
 it is provided that the Court shall only have power to 
 relieve the same person once in respect of the same con- 
 dition (n). Similar power was conferred on Courts of 23 & 24 
 common law by 28 & 24 Vict. c. 126, ss. 2, 3. These cases ^ 126. 
 are now included in the more comprehensive measure 
 recently passed; see p. 213. 
 
 7. Where there are in a deed several covenants or pro- One sum 
 visions for the performance of several acts or a succession severa"^ 
 of acts, and a certain sum is by the same instrument stipu- ^^^^ , , 
 
 regarded 
 
 lated to be paid upon the breach of any or of all such as penalty; 
 stipulations, the sum will be considered as a penalty, and 
 only the actual damage sustained can be recovered. This 
 is well illustrated by KemhJe v. Farren (o), where the con- 
 tract was that the defendant should act at Covent Garden 
 Theatre for four seasons, receiving £3 6s. ScZ. for every 
 night the theatre was open. There was a proviso that if 
 either party should neglect or refuse to fulfil the said 
 agreement or any part thereof, such party should pay to the 
 other the sum of £1000, and it was agreed that this sum 
 should be considered as liquidated damages, and not as in 
 the nature of a penalty. Nevertheless, on a breach of the 
 agreement in the second season, the Court held that this 
 sum was a penalty, since there was no attempt at propor- 
 tioninof it to the extent of the breach. 
 
 It will be seen that this case further establishes the ride notwitb- 
 that even an express agreement between the parties that !'in^ express 
 a certain sum shall be considered as liquidated damages, agreemtnt. 
 and not as a penalty, will not override the principle of 
 equity in cases where it clearly applies. 
 
 8, Another illustration of a similar kind is afforded b}^ 
 those recent cases in which the Courts have refused to 
 enforce a bye-law of a railway company to the effect that 
 a passenger who travels without a ticket beyond the 
 
 (m) s. 4. 117. 
 
 [n) See Piuje v. Benmt, 2 Giff. (0) 6 Bing. 141.
 
 210 
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 distance for which his ticket is issued must pay the whole 
 fare from the place from which the train started (j?). The 
 principle resembles that of Kemhle v. Farren (q), it being 
 considered that the same sum cannot be reasonably 
 demanded as damages for breaches of contract differing in 
 degree. 
 Accident, 9. In cases in which relief might not otherwise have 
 fraud!^^' "^"^ been given, if there have been auy unavoidable accident, 
 surprise, excusable ignorance, or fraud, which has prevented 
 the execution of a covenant, the Court will interfere upon 
 compensation being made (r). Under such circumstances 
 as these, relief has been given against a forfeiture of a 
 breach of a covenant to rejDair (s) ; and similarly where the 
 act of forfeiture has been committed in reliance on the as- 
 surances of an agent of the defendant (t), and where the 
 right to claim forfeiture has been waived {u). 
 
 II. Limits of the Principle. 
 
 1. It being a condition of granting relief against a 
 penalty or forfeiture that proper compensation for the 
 breach of the agreement shall be made, it follows that 
 where there is no means of ascertaining what amount of 
 compensation would be equitable, no relief will be given. 
 
 Thus in the case of a breach of a general covenant to 
 
 to repair; j-^pair, by which a forfeiture has been incurred, equity has 
 
 hitherto usually refused to interfere (x). The case of a 
 
 covenant not in general terms, but to lay out a specific sum 
 
 in a given time, has been sometimes distinguished (y), but 
 
 Compen- 
 sation 
 must be 
 ascertain- 
 able. 
 
 Covenant 
 
 (p) Broivn v. G. E. R. Co., 2 Q. B. 
 D. 406. 
 
 (<?) 'S'Mi'- 
 
 {r) Eaton v. Lyon, 3 Ves. 690, 
 693 ; HiU v. Barclay, 18 Ves. 56, 62. 
 
 (s) Hwjhes V. Met. JR. Co., 1 C. P. 
 D. 120 ; 2 App. C. 439. 
 
 (t) Wing V. Harvey, 5 De G. M. 
 & G. 265. 
 
 (m) Croft V. Lumley, 5 E. & B. 
 648. 
 
 (x) Grerjwy v. Wihon, 9 Ha. 683, 
 689. 
 
 [y) Hack v. Leonard, 9 Mod. 90.
 
 LIMITS OF THE PRINCIPLE. 211 
 
 it seems that even in such cases relief would only have 
 been given under special circumstances (z). On similar to build, 
 grounds relief has been refused in case of a breach of a 
 covenant to build houses (a), and of a covenant to cultivate 
 land in a husband-like manner (6). All these cases are, 
 however, now provided for by statute (see p. 213), and 
 relief in accordance with its terms may be given notwith- 
 standing the breach of any covenant, excepting those 
 therein expressly excepted. 
 
 2. It is a common stipulation in public undertakings Forfeiture 
 
 that shareholders shall forfeit their shares on non-payment for^non-^ 
 
 of calls. It might at first sight seem that this presented payment 
 11 r> T f> ^1 . . of calls. 
 
 a reasonable case lor reliet on payment ol the arrears with 
 interest ; but equity has, on grounds of public policy, re- 
 fused to interfere in these cases (c). What distinguishes 
 them from the case of a lessee who allows his rent to fall 
 into arrear, is that in the former case the undertaking is 
 usually of a more or less speculative character, and it 
 would be inequitable to allow a shareholder to lie by and 
 withhold his calls indefinitely until the chances of success 
 were fully ascertained. The danger of a multiplicity of 
 actions arising in case relief was so afforded has also been 
 of weight in the decisions. Where, however, in the articles 
 of association of a public company there is no stipulation 
 or clause conferring upon directors a power to declare 
 shares forfeited, they have no implied power to do so (d) ; 
 nor have the managers of a cost book mine (e). And 
 wherever such a power of forfeiture is provided, it will be 
 strictly construed, and every condition prescribed for its 
 exercise must be complied with (/). 
 
 3. The Court has no jurisdiction to grant relief against statutory 
 any penalties imposed by statute (g). Within this principle ^^^^ *^^®' 
 
 (z) Hill V. Barclay, sup.; Brace- (d) Re National d-c. Co., 7 W. 
 
 indge v. Buckley, 2 Price, 200, 215. R. 369. 
 
 (a) Croft v.Goldsmid, 24Beav.312. (e) Clarice v. Ea/rt, 6 H, L. 633. 
 
 (6) Hills V. Rowland, 4 De G. M. (/) Ihkl. ; Goidton v. London dbc. 
 
 & G. 430. Co., W. N. 1877, p. 141. 
 
 (c) Sixtrks V, Liverpool Watei-- (g) Keating v. Sparroiv, 1 Ba. & 
 
 xoorlcs, 13 Ves. 428. Be. 367 ; Re Brain, 18 Eq. 389. 
 
 p 2
 
 212 BELIEF AGAINST PENALTIES AND FOBFEITURES. 
 
 fall penalties imposed by benefit building societies in 
 
 accordance with their rules under 6 & 7 Will. IV. c, 92 (i). 
 
 Persons 4. Though in many cases, as above shown, equity relieves 
 
 ele^t be- against a penalty or forfeiture which has been incurred by 
 
 tween an ^^ breach of contract, it will not suffer a person who has 
 
 agreement ,i i v x- r 
 
 and a entered mto an agreement, to escape the obligation ot 
 penalty, specifically performing it by electing to pay the penalty 
 stipulated in case of non-performance. The case of 
 French v. Macule (k) is usually referred to on this ques- 
 tion. There it was laid down by Lord St. Leonards that 
 " if a thing be agreed upon to be done, though there is a 
 penalty annexed to its performance, yet the very thing 
 must be done ;" and the rule applies whether the contract 
 be to do or to abstain from doing anything (J). 
 Contiacts But care must be taken to distinguish between such 
 Il^r,-!" °^ cases and those in which a certain sum is agreed to 
 conditions. \,q paid as the price of or consideration for doing or 
 abstaining from doing a given act — for instance, where a 
 lessee covenants to reside on the premises or not to plough 
 land, and if otherwise to pay an additional rent. Here 
 the additional rent will not, on the one hand, be regarded 
 as a penalty, so as to be relieved against, nor on the other 
 hand can the lessee be restrained from exercising the 
 option given to him {m). Where the contract is of this 
 nature, the Court will not infer from the fact of the addi- 
 tional sum reserved being disproportioned to the actual 
 damage resulting that it is in the nature of a penalty (n) ; 
 but if together with a covenant for additional payment 
 there is also a clause of forfeiture, the payment will then, 
 it seems, be deemed a penalty (o). 
 Liquidated 5. The cases last discussed illustrate the distinction 
 " ° ^' between a penalty and liquidated damages, on which dis- 
 tinction the whole of the present question turns. It has 
 
 (i) Parher v. Butcher, 3 Eq. 762 ; 327. 
 Provident P. B. Soc. v. Greenhill, (m) Rolfe v. Peterson, 2 Bro. P. C. 
 
 9 Ch. D. 122. 436 ; Hardy v. Martin, 1 Cox, 27. 
 
 (k) 2 Dr. & W. 269. (n) Chilliner v. C, 2 Ves. sr. 528. 
 
 [l) Ibid. ; Fox v. Scard, 33 Beav. (o) French v, Macale, sup.
 
 LIMITS OF THE PRINCIPLE. 213 
 
 already been seen that the mere use of the term liquidated 
 damages, or even an express agreement that a sum shall 
 be considered as such, is not conclusive as to its character. 
 The Court will look at the whole transaction in order to 
 determine whether the payment provided for is rightly to 
 be regarded as a penalty or not (q) ; and the leaning of 
 the Court is in favour of the construction which regards 
 the sum named as a penalty (/'). 
 
 6. By the recent Conveyancing Act (s) the powers of 
 the Court to relieve against the forfeiture of leases has 
 been largely increased. It is thereby enacted that a right 
 of re-entry or forfeiture under any proviso or stipulation 
 in a lease, or a breach of any covenant or condition therein, 
 shall not be enforceable by action or otherwise until the 
 lessor serves on the lessee a notice specifying the particular 
 breach complained of, and, if the breach is capable of 
 remedy, requiring the lessee to remedy the breach, and in 
 any case requiring the lessee to make compensation in 
 money for the breach, and the lessee fails, within a reason- 
 able time thereafter to remedy the breach (if capable of 
 remedy), and to make reasonable compensation in money, 
 to the satisfaction of the lessor. Where the lessor is pro- 
 ceeding by action or otherwise to enforce such right of 
 re-entry or forfeiture, the lessee may apply to the Court 
 for relief, which the Court may grant or refuse on such 
 terms as it may think fit. The statute expressly excepts 
 from its operation covenants or conditions against assign- 
 ing, underletting, or parting with the possession, or dis- 
 posing of the land leased, and also covenants or conditions 
 in mining leases to allow the lessor to inspect the mine or 
 its books, &c., and it does not affect the law relating to re- 
 entry or forfeiture or relief for non-payment of rent. It 
 relates to existing as well as to future leases, and repeals 
 22 & 23 Vict. c. 35, ss. 4—9, and 23 & 24 Vict. c. 126, s. 2. 
 
 (5) Dimech v. Corktt, 12 Moo. P. (r) Davies v. Penton, 6 B. & C. 
 
 C. 199 ; Jones v. Green, 3 Y. & J. 216. 
 298, 304. («) 41 & 4o Vict. c. 4], s. 14.
 
 214 
 
 CHAPTER V. 
 
 MORTGAGES AND LIENS. 
 
 Section I.— Mortgages at Law and in Equity. 
 
 I. Mortgages at Common Laiu. 
 II. The Equity of Redemiption. 
 
 Howard v. Harris. 
 
 Casborne v. Scarfe, 
 
 Thornborough v. Baker. 
 
 III. Assignment of Mortgages. 
 
 IV. Persons entitled to Redeem. 
 V, Time of Reder)iption. 
 
 VI. Mortgages of a Wife's Property. 
 VII. Mortgages of Personalty. — Bills of Sale. 
 
 vadium. 
 
 I. Mortgages at Go'inmon Laiu. 
 
 1. The common law recognised two kinds of landed 
 security, vivmn vadium and mortuum vadium. The 
 
 Vivum vivum vadiuin consisted of a feoffment to the creditor and 
 his heirs until out of the rents and profits he had satis- 
 fied himself his debt. The creditor took possession, 
 received the rents, and applied them in liquidation of the 
 debt. When it was satisfied the debtor might re-enter 
 and maintain ejectment. It seems to have been called 
 vivwm vadium because neither debt nor estate was lost. 
 
 Mortuum 2. The mortuum vadium was a feoffment to the credi- 
 tor and his heirs to be held until the debtor paid his debt, 
 
 vadium.
 
 MORTGAGES AT COMMON LAW. 215 
 
 until which time the creditor received the rents without 
 account. The estate was unprofitable or dead to the 
 mortgagor in the meantime, the original debt remaining 
 undiminished. As in the vivum vadium, so in this 
 security, the estate was never lost to the debtor. 
 
 3. Both these securities have long been obsolete, but 
 there still exists a form of security which somewhat 
 resembles each of them, namely, the Welsh mortgage. Welsh 
 This consists of a conveyance of an estate to the creditor " ' 
 and his heirs to be held until the debt is discharged, the 
 creditor meanwhile receiving the rents and profits as an 
 equivalent for interest, while the principal remains un- 
 diminished. No covenant for the payment of the debt is 
 inserted in the mortgage-deed, and the mortgagee has no 
 power to compel redemption or foreclosure, though the 
 mortgagor may redeem at any time (a). The Statute of 
 Limitations (b) would probably bar the right of redemp- 
 tion at the expiration of twelve years from the satisfaction 
 
 of the debt, but would not commence to run until then, 
 the possession being up to that point not adverse (c). 
 
 4. In the place of the ancient contracts of vivum vadium The 
 and Tnortuum vadium, arose the modern mortgage, which ^orteage 
 is thus described by Littleton (d) : " If a feoffment be 
 
 made upon such condition that if the feoffor pay to the 
 feoffee at a certain day, &c., forty pounds of money, 
 then the feoffor may re-enter ; in this case the feoffee is 
 called tenant in mortgage. ... If the feoffor doth not pay, 
 then the land, which is put in pledge upon condition for 
 the payment of the money, is taken from him for ever 
 .... and if he doth pay the money, then the pledge is dead 
 as to the tenant, &c." 
 
 The mortgage was thus an estate upon condition ; a How 
 feoffment was made to the creditor with a condition in the ^Uaw.^ 
 deed of feoffment, or in a deed of defeazance executed at 
 
 (a) Howell v. Price, Prec. Ch. (c) Coote, p. 327, ed. 4. 
 
 423. (d) s. 332. 
 
 (6) 37 & 38 Vict. c. 57.
 
 216 MORTGAGES AT LAW AND IN EQUITY. 
 
 the same time, by which it was provided that on payment 
 by the mortgagor or feoffor of a given sum at a time and 
 place certain, it should be lawful for him to re-enter. 
 Immediately on the livery made, the mortgagee or feoffee 
 became the legal owner of the land, and in him the legal 
 estate vested, subject to the condition. If the condition 
 was performed the feoffor re-entered, and was in possession 
 of his old estate. If the condition was broken, the feoffee's 
 estate became absolute and indefeasible. 
 Conditions The common law generally required strict performance 
 required ^^ conditions ; and with respect to conditions in mort- 
 strictly gagos, the rules on which it acted were, if not so rigid as 
 pel oime . ^gj^.g observed in some cases, nevertheless sufficiently so to 
 work great hardship on mortgagors. There were unbend- 
 ing requirements as to the time and manner of payment, 
 any neglect of which resulted in the irremediable loss of 
 the estate, however much it might exceed in value the sum 
 advanced. 
 
 II. The Equity of Redemption. 
 
 General 1. It is evident that tlie above stated principles of com- 
 
 prii.cipe, ^^^^ j^^ ^^^^ repugnant to the general doctrines of Courts 
 of equity, according to which unreasonable penalties ought 
 always to be relieved against. In the jurisprudence of the 
 praetors at Rome, it had been established that where pro- 
 perty was pledged for a debt, the debtor might redeem 
 the estate on payment of the debt at any time before the 
 passing of a judicial sentence confirming the creditor in 
 his estate. The Court of Chancery could not, indeed, 
 alter the legal effect of the forfeiture at law; it could 
 not deprive the conveyance of its legal effect ; but it brought 
 the Roman principle into operation by another means. 
 how esta- A.cting in personam on the conscience of the mortgagee, 
 equity declared it unreasonable that he should retain for 
 
 blished.
 
 THE EQUITY OF REDEMPTION. 217 
 
 his own benefit what was intended merely as a pledge, 
 and it adjudged that the mortgagor had an " equity to 
 redeem " the estate on payment within a reasonable time of 
 the principal debt with proper interest and costs, notwith- 
 standing the forfeiture at law (e). Thus was established, 
 without direct interference with legal doctrines, the right 
 known as the equity of redemption. So beneficial was 
 this equitable interference found to be, and so tenaciously 
 did the Courts of law still adhere to their rigid system, that 
 mortgages soon fell almost entirely within the jurisdiction Mort- 
 of the Court of Chancery, and have so continued to the within ^ 
 present time. Now, by s. 34, sub-s. 3, of the Judicature jy"«dic- 
 Act, 1873 (/), the redemption and foreclosure of mortgages equity. 
 are expressly assigned to the Chancery Division of the 
 High Court of Justice. 
 
 2. No sooner, however, was the equity of redemption 
 established, than another bold decision was required to 
 confirm the principle in its utility. It was found that Attempts 
 creditors, eager to regain the unjust advantage which the the equity 
 law had afforded them, attempted to evade the fairer ^^ ^°^'^' 
 
 ••I'll nant. 
 
 doctrine of equity by requiring their debtors expressly to 
 
 preclude themselves by agreement from their right to 
 redeem. Fortified by this express stipulation, they sought 
 to rely on the maxim rrnodus et conventio vincunt legem, 
 and to assert this in opposition to the interference of 
 equity. But the firmness of the Courts of equity pre- 
 vented this result. Always looking at the intent rather 
 than at the form of things, these Courts laid it down that 
 the debtor could not by any engagement entered into at 
 the time of the loan preclude himself from his right to 
 redeem, and generally that it was inequitable that a 
 creditor should obtain, through the necessities of his 
 debtor, and under colour of a mortgage, a collateral advan- 
 tage beyond the payment of principal, interest, and costs. 
 
 (e) Lamjford v. Burnard, Tothill, (/) 36 & 37 Vict. c. 66. 
 134; decided in 1594.
 
 218 MORTGAGES. 
 
 On this point the case of 
 
 HOWARD V. HARRIS 
 
 [1 Vern. 190; 2 W. & T. L. C. 1058] 
 
 " Once a is a leading authority. It established the rule, curtly 
 always!*^ exjjressed in the phrase " once a mortgage always a mort- 
 mortgage." gage," that the same deed could not at one time be a 
 mortgage, and at another an absolute conveyance. Other 
 authorities have added to this other principles of a similar 
 Invalid nature. Thus it has been established that a stipulation 
 tions. in a mortgage that if the interest is not paid at the end of 
 a year it shall be converted into principal, is invalid {g) ; 
 so also is a stipulation that the mortgagor shall not pay 
 the mortgage debt, or institute proceedings for redemption 
 for twenty years (li), or that the mortgagee shall be receiver 
 of the rents of the estate with a commission (i), or that 
 the mortgagee in possession shall receive a certain sum for 
 management {j). And though it is admissible, while 
 reserving a given rate of interest, to agree that on punctual 
 payment the interest shall be reduced {h), if it is stipulated 
 that the rate of interest shall be raised unless punctually 
 paid, this the Court will consider to be of the nature of a 
 penalty, and will relieve against, even in a case of gross 
 default (l). If there is a proviso for reduction of interest 
 on punctual payment, a mortgagee in possession through 
 the mortgagor's default is entitled to the higher rate (rn). 
 
 In accordance with the same principle, equity will not 
 allow a mortgagee to contract with the mortgagor at the 
 time of the loan, for the absolute purchase of the lands 
 at a specified sum in case of default in payment at a stated 
 time {n). He may, however, agree for a preference of pre- 
 
 (g) Chambers v. Gold/min, 9 Ves. (k) Nicholls v. Maynard, 3 Atk. 
 
 271. 519. 
 
 {h) Cowdry v. Day, 1 Gifif. 316. {I) Ibid.; Stanhope v. Manners, 
 
 (i) Lamjstaffe v. Femvick, 10 Ves. 2 Ed. 199. 
 
 405. (m) Union Bank &c. v. Ingram, 
 
 0) Comyns v. C, 5 I. R. Eq. 16 Ch. D. 53. 
 
 583 ; Eyre v. Hughes, 2 Ch . D. (w) Price v. Perrle, Freem. 258. 
 198. 

 
 CONDITIONAL SALES. 219 
 
 emption in case of sale, and this will be enforced if claimed 
 within a reasonable time (o). 
 
 3. The important distinction must also be observed Distinc- 
 between a mortgage and an absolute sale of an estate tween 
 with a proviso for the vendor to repurchase upon certain mortgage 
 terms. If the Court considers that the transaction was on condi- 
 not intended as a mortgage, but as such a conditional sale, ^^^^ 
 it will bind the vendor strictly to his contract Q:)). So 
 also where there is an absolute conveyance with a subse- 
 quent agreement that if the vendor desires it he may 
 have his estate again upon repayment of the purchase 
 money with interest or costs (q). 
 
 There being this important distinction between the depends 
 effect of a mortgage and that of a conditional sale, it is ^^_ ^ 
 necessary to consider what circumstances will furnish a stances of 
 criterion by which to distinguish between the two transac- ticular 
 tions ; since it is evident that they will often prwid facie ^^^®- 
 much resemble one another. There is no positive rule of 
 law for this purpose ; it depends upon the particular circum- 
 stances of each case. Parol evidence will always be admitted Parol 
 to show that an apparent conveyance was intended as a 
 security only (r). If the money alleged to be purchase 
 money is grossly inadequate as a price for the estate, or 
 if interest is paid on the money, or the gi'antee accounts 
 for the rents, or the grantor remains in possession, these 
 are circumstances tending to show that the transaction 
 was really a mortgage, and not a sale (s). The general 
 principle is that iirimd facie an absolute conveyance, 
 containing nothing to show the relation of debtor and 
 creditor, does not cease to be a conveyance, and become a 
 mortgage, merely because the vendor stipulates that he 
 shall have a right to repurchase. The question is, what 
 
 (o) Orhy v. Trigg, 2 Eq. Ca. Abr. (>•) England v. Codrington, 1 Ed. 
 
 699; Daiosonv. D., 8 Sim. M6. 169; Maxivell v. Montacute, Prec. 
 
 (p) Aklerson v. White, 2 De G. & Ch. 526. 
 
 J. 97. (s) Brooke v. Garrod, 3 K. & J. 
 
 (q) Cotterdl v. Purchase, Ca. t. 608 ; 2 De G. & J. 62 ; WiUiams v. 
 
 Talb. 61. Owen, 5 My. & Cr. 303.
 
 220 
 
 MORTGAGES. 
 
 Release or 
 sale of 
 equity of 
 redemp- 
 tion. 
 
 Mortgage 
 by way of 
 family 
 settlement. 
 
 Equity of 
 redemp- 
 tion an 
 estate. 
 
 Legal 
 personal 
 represen- 
 tative of 
 mortgagee 
 entitled to 
 mortgage 
 debt. 
 
 upon a fair construction is the meaning of the instru- 
 ment (t). 
 
 There may also be a valid sale or release of the equity of 
 redemption by the mortgagor to the mortgagee, and even 
 if the consideration is inadequate, it will be enforced in the 
 absence of fraud or duress (u). 
 
 Where the conveyance of an estate to a person by way 
 of mortgage is intended to be in the nature of a family 
 settlement, the equity of redemption may, contrary to the 
 general rule, be confined to the life of the settlor or mort- 
 gagor, and his heirs will not be allowed to redeem (x). 
 
 4. The case of 
 
 CASBORNE V. SCARFE 
 
 [1 Atk. 603; 2 W. & T. L. C. 1051] 
 shows that an equity of redemption is not a mere right, as 
 was considered in some early cases. It is, on the contrary, 
 an estate in the land, and may be dealt with as such ; for 
 instance, it may be devised, granted, or entailed with 
 remainders, and such entail and remainders might be 
 barred by fine and recovery. Or it may be settled or 
 mortgaged ; only so, however, that all incumbrancers subse- 
 quent to the first, if he has the legal estate, will take 
 subject to his prior right. 
 
 Further, the owner of an equity of redemption being 
 considered as owner of the land, on his death intestate the 
 descent of the equity of redemption will be governed by 
 the same rules of law as the legal estate, whether the 
 general rules of law or those of a special custom, such as 
 gavelkind or borough English (y). 
 
 5. The leading case of 
 
 THORNBOROUGH v. BAKER 
 
 [1 Ch. Ca. 283 ; 3 Swanst. 628 ; 2 W. & T. L. C. 1046] 
 illustrated another incident of the equity of redemption : 
 namely, that while in the case of a mortgage in fee, on the 
 
 (t) Coote, 22; Skate v. Jcffry, 13 7; Bonliani v. Neivcomb, ib. 214; 
 
 Mo. P. C. 432. ' King v. Bromley, 1 Eq. Ca. Abr. 595. 
 
 (u) Ford V. Olden, 3 Eq. 461. (//) Faivcett v. Lowther, 2 Ves. sr. 
 
 (x) Neiccoinb v. Bonliam, 1 Vern. 301, 301.
 
 ASSIGNMENT OF MORTOAGES. 221 
 
 decease of the mortgagee, his heir must reconvey, on pay- 
 ment of the mortgage money, interest and costs, yet his 
 legal personal representative will be entitled to the money. 
 Now, however, power is conferred on the personal repre- 
 sentatives to convey, the estate being deemed to vest in 
 them as if it were a chattel real {y). In the case of an 
 absolute conveyance with a collateral agreement for repur- 
 chase, if the purchaser dies, and the person who conveyed to 
 him exercises his option of repurchase, the heir, and not the 
 executor, of the purchaser will be entitled to the money {z). 
 
 III. Assignment of Mortgages. 
 A mortgagee has power a,lone at any time to assign the Mortgagee 
 mortgage ; but the assignee should for his own protection aione^-^^'^" 
 always obtain the concurrence of the mortgagor. This is but 
 necessary because the assignee can only take subject to ^j^sigiiee 
 all equities, and to the state of the account as between the require 
 mortgagor and mortgagee. If the mortgagor does not rence^of 
 concur, he is not bound by the amount of the debt appear- mortgagor, 
 ing upon the face of the mortgage. If, in fact, the mort- 
 gage debt has been paid off, the security is determined ; 
 if partly paid, it is determined pro tanto (a). Further, if or at least 
 a mortgage is assigned, and the assignee fails to give notice notice, 
 of the transfer to the mortgagor, his security is liable to be 
 prejudiced by any payments made by the mortgagor to the 
 mortgagee subsequent to the assignment (h). A fortiori a 
 mortgagor cannot be prejudiced by any agreement between 
 a mortofaofee and his assignee to increase the amount of the 
 principal due, as by converting interest into principal (c) ; 
 but if the assignment is with the concurrence of the mort- 
 gagor, and there is an arrear of interest thereon, any interest 
 paid by the assignee to the mortgagee will be taken as 
 principal, and will carry interest (d). 
 
 (y) a & 45 Vict. c. 41, s. 30. (h) C'ha)nbersv.Goklwin,9Ves.25i. 
 
 (z) St. John V. Wareham, cited, 3 (c) E. of Macclesfield v. Fitton, 1 
 
 Swanst. 631. Vern. 169. 
 
 (a) Mattlmcs v. Walhvi/n, 4 Ves. {d) Ashenhurst v. James, 3 Atk. 
 
 118 ; Williams v. Sorrell, ibid. 389. 271.
 
 222 
 
 MORTGAGES. 
 
 Mortgagee 
 in posses- 
 sion ac- 
 countable 
 after 
 assign- 
 ment. 
 
 Assignee 
 
 may 
 
 usually 
 
 recover 
 
 the whole 
 
 mortgage 
 
 debt. 
 
 Secus if 
 there is a 
 fiduciary 
 relation. 
 
 Moreover, if a mortgagee is in possession, he is con- 
 sidered in equity for many purposes as a trustee ; and then 
 if he assigns the mortgage without the consent of the mort- 
 gagor he will still remain liable to account for the profits, 
 on the principle that it would be a breach of trust to assign 
 to an unreliable person (e). 
 
 It has been questioned whether, in cases in which an 
 assignee purchases a mortgage for less than is due upon it, 
 he is entitled to claim from the mortgagor the whole of the 
 original sum, or only the amount which he has paid. As a 
 general rule, it appears that he is entitled to the benefit of 
 his purchase, and may claim the whole debt(/). But if 
 the purchaser stands in any fiduciary relation towards the 
 owner of the estate, as trustee, executor, guardian, or agent, 
 he will be considered as having purchased for the benefit 
 of the estate, and will only be allowed repayment of what 
 he actually gave (g). 
 
 Persons 
 entitled to 
 redeem : 
 
 Heir. 
 
 Devisee. 
 Assignee. 
 
 Trustee in 
 bank- 
 ruptcy. 
 
 IV. Persons entitled to Redeem. 
 
 Having discussed some of the principal characteristics of 
 an equity of redemption, the next inquiry is as to what 
 persons are or may be entitled to redeem. 
 
 (1.) We have seen that the equity of redemption may 
 descend to an heir. In other words, an heir may redeem ; 
 and it is suflScient for him to show a primd facie title (k). 
 
 (2.) An equity of redemption may be devised — i.e., a 
 devisee may bring an action to redeem (i). 
 
 (3.) An equity of redemption may be assigned ; thus, an 
 assignee may redeem (j). 
 
 (4.) An equity of redemption, being an estate in the 
 mortgagor, devolves upon his bankruptcy upon the trustee ; 
 thus a trustee in bankruptcy is entitled to redeem (Z;). 
 
 (e) 1 Eq. Ca. Abr. 328. 
 
 (/) Phillips V. Vaurjhan, 1 Vern. 
 336 ; A7ion, 1 Salk. 155. 
 
 ( g) Morret v. PasJce, 2 Atk. 52, 
 54. 
 
 (h) Pym V. Botm-eman, 3 Swanst. 
 
 241 n. ; Lloijd v. Wait, 1 Ph. 61. 
 
 (i) Lewis v. Nanyle, 2 Ves. sr. 
 431. 
 
 {j) Anon, 3 Atk. 314. 
 
 (k) Franiclyn v. Fern, Barnard. 
 Ch. 30.
 
 PEESONS ENTITLED TO REDEEM. 223 
 
 (5.) Judoinent creditors, who have a lieu on an equity of J"*^&™ent 
 
 . . . . creditors 
 
 redemption, are entitled to redeem (/) ; but it is necessary when their 
 that they should have issued execution under 23 & 24 ^'^^ *? ^ 
 
 •^ complete. 
 
 Vict. c. 38, or 27 & 28 Vict. c. 112 (m), as otherwise their 
 lien on the land is not complete. 
 
 (6.) A plaintiff in a creditor's suit for administration Plaintiff in 
 may, after a decree for sale of the real estate, bring an action tratiou 
 against the mortgagee to redeem, in order to carry out the '*"^*- 
 sale {n). 
 
 (7.) When an equity of redemption became forfeited to Crown on 
 the Crown, the Crown or its grantee might redeem (o). 
 Under 33 & 34 Vict. c. 23, the administrator or interim 
 curator of the estate of the felon may presumably do so. 
 
 (8.) So a lord claiming the reversion by escheat may Lord on 
 redeem a mortgage term Q^). 
 
 (9.) Although a voluntary conveyance be void under "Volun- 
 27 Eliz. c. 4, as against purchasers, and so against the mort- 
 gagee, who is ^3ro tanto a purchaser, nevertheless a volun- 
 teer under such a conveyance of an equity of redemption 
 may redeem (q). 
 
 (10.) In short, any person interested in the equity of Any 
 redemption may redeem — e.g., a dowress (r) ; a tenant for terestecnn 
 life, remainderman or reversioner (s), the tenant for life equity of 
 
 1 ' T n • 11 redemjj- 
 
 havmg the first option ; a tenant by the curtesy (t) ; and a tion. 
 jointress (u). 
 
 (11.) Lastly, a subsequent mortgagee may redeem, mak- A sub- 
 ing the mortgagor or his heir a party to his action (x). mortgagee. 
 
 Where any person entitled to redeem tenders the mort- 
 gage money and interest, he is entitled to a delivery of the 
 title deeds, and to have a conveyance of the property (y). 
 
 A mortgagor entitled to redeem has power to require the 
 
 (I) StoneTievxr v. Tliompson, 2 Atk. 59. 
 440. (r) Palmer v. Lanhy, Prec. Ch. 
 
 [m) E. of Cork v. Russell, 13 Eq. 137. 
 210, 215. (s) Aynsly v. Reed, 1 Dick, 249. 
 
 («) Christian v. Field, 2 Ha. 177. {t) Jones v. Meredith, Bunb. 357. 
 
 (o) Att.-Gen. v. Crofts, 4 Bro. P. C. {u) Hon-ard v. Harris, sup. 
 
 136. (x) Fell V. Brown, 2 Bro. C. C. 
 
 (f>) Domne v. Mon-is, 3 Ha. 394. 276 ; Farmer v. Curtis, 2 Sim. 466. 
 
 (5) Rand v. Carturight, 1 Ch. Ca. (y) Pearce v. Moms, 5 Ch. 227.
 
 224 MORTGAGES. 
 
 mortgagee, instead of reconveying, to assign the mortgage 
 debt, and convey the property to any third person {y). 
 
 V. Tiine of Redemption. 
 No power 1. A person cannot redeem before the time appointed in 
 to redeem ^^ mortfTaffe deed, althoiioh he tenders to the mortgagee 
 
 beinre the o o ' o o o 
 
 time both the principal and the interest due up to that time {z). 
 
 jj ^*^ ■ If he does not pay the debt at the appointed time, he must 
 then, six give six months' notice of his intention to do so, since it 
 notiW^ would evidently be unfair to the mortgagee to compel him 
 to accept his money without giving him an opportunity of 
 providing for its reinvestment. 
 
 If due notice is given, and then the mortgagee refuses 
 to accept a full tender of the principal, interest, and costs, 
 thus compelling the mortgagor to seek a remedy in an 
 action for redemption, the mortgagee will be compelled to 
 pay the costs of the action (a). 
 Limitation 2. Independently of the Statute of Limitations (1)), a 
 thestatute. mortgagee could not generally be disturbed after twenty 
 years' possession without any acknowledgment of the 
 Disability, mortgagor's title (c). The imprisonment, infancy, cover- 
 ture, or absence beyond seas of the mortgagor were re- 
 garded as exceptional circumstances entitling him to 
 exceptional consideration, and, after the analogy of the 
 older statute {d), ten years were allowed after the removal 
 Acknow- of the disability (e). Moreover, even in the absence of 
 " ^ ■ fraud or oppression, a very slight act of acknowledgment 
 of title on the part of the mortgagee, such as keeping 
 private accounts of the profits, sufficed to preserve the 
 equity of redemption (/). A fortiori the keeping of 
 accounts with the mortgagor or his heir, or an acknowledg- 
 ment of the equity of redemption in a conveyance or 
 
 iy) 44 & 45 Vict. c. 41, s. 15. (rf) 21 Jac. I. c. 16. 
 
 (z) Brmvn v. CoU, 14 Sim. 427. (e) Jenner v. Tracy, 3 P. Wms. 
 
 (a) Grugeon v. Gerrard, 4 Y . & C. 287, n. 
 
 Ex. 119, 128; Harnicr v. Priestley, (/) Fairfax v. Montague, cited, 2 
 
 16 Beav. 569. Ves. jr. 84 ; Hansard v. llardtj, 18 
 
 (6) 3 & 4 Will. IV. 0. 27. Ves. 455. 
 
 (c) Anon, 3 Atk. 313.
 
 TIME OF REDEMrXION. 225 
 
 devise would suffice for that jDurpose (g) ; and even parol Parol 
 evidence of the conversation of the mortgagee has been 
 admitted on behalf of a mortgagor seeking redemption (h). 
 
 3. But the many difficulties which thus arose were in a ^t-'itute 
 great measure put an end to by 3 & 4 Will. IV. c. 27, Will. IV. 
 which fixed the limitation of the mortgagor's equity at *^' ^'^' ^" ^^' 
 twenty years after the time at which the mortgagee ob- 
 tained possession or receipt, unless in the meantime an 
 acknowledgment of the title of the mortgagor or of his 
 right of redemption should have been given to the mortgagor 
 or some person claiming his estate or to an agent of such 
 mortgagor or person, in writing signed by the mortgagee 
 or the person claiming through him. The same statute 
 further provides that if there be more than one mortgagor, 
 or more than one person claiming through the mortgagor 
 or mortgagors, such acknowledgment if given to any of 
 such mortgagors or persons, shall be as effectual as if given 
 to all ; but that if there shall be more than one mortgagee, 
 &c., the signature of one shall be only effectual against 
 himself and the persons claiming through or under 
 him (i). 
 
 This section has now been replaced by the provisions of a 37 & 38 
 more recent statute (Jc) which came into operation on the 
 1st January, 1879, and which enacts that when a mortgagee 
 shall have obtained possession or receipt of the profits of 
 land, or of any rent comprised in his mortgage, the mort- 
 gagor or any person claiming through him shall not bring 
 any action or suit to redeem the mortgage, but within 
 twelve years next after the time at which the mortgagee 
 obtained such possession or receipt, unless in the mean- 
 time an acknowledgment in writing of the title of the 
 mortgagor or of his right to redemption shall have been 
 given to the mortgagor or to some person claiming his 
 
 {g) Smart v. Hunt, 4 Ves. 478 n. ; See Whiting v. White, 2 Co.x, 290. 
 
 Conway v. Shrim.pton, 5 Bro. P. C. (0 s. 28. 
 
 187. (i--) 37 & 38 Vict, c 57. 
 
 (h) Perry v. Marston, 2 Cox, 295. 
 
 9
 
 226 
 
 MORTGAGES. 
 
 Time only 
 runs when 
 possession 
 is adverse. 
 
 What is 
 sufficient 
 acknow- 
 ledgment. 
 
 estate, or to the agent of such mortgagor or person, signed 
 by the mortgagee or the person chiiminti; tlirongh him ; 
 and in such case no action shall be brought but within 
 twelve years after such acknowledgment. The provisions 
 for the cases of an acknowledgment by one of two or more 
 mortgagors or to one of two or more mortgagees correspond 
 to those of the earlier act. 
 
 Time will not run under these acts against the mortgagor 
 while the possession of the mortgagee is not adverse, but 
 may be referred to another title ; thus for instance, if a 
 mortgagee purchased the estate of a tenant for life who 
 had joined the remainderman in mortgaging the estate, 
 and entered into possession, time would not run against the 
 remainderman during the life of the tenant for life (I). 
 
 4. There are numerous cases respecting the question as to 
 what is a sufficient acknowledgment within the statutes. 
 It will be observed that by the language of both Acts the 
 acknowledgment must be given to the mortgagor himself, 
 or to those claiming his estate ; an admission to a third 
 person does not suffice, except indeed to an agent or 
 solicitor of the mortgagor or claimant (m). No particular 
 form of acknowledgment is required, nor need the amount 
 due be stated (7i) ; an acknowledgment will not, however, 
 be inferred from equivocal expressions (o). 
 
 It has been decided that the sections suspending the 
 running of the statute pending disability do not apply as 
 between mortgagor and mortgagee (p). 
 
 VI. Mortgage of Wife's Property by Husband and 
 
 Wife. 
 Wife's j^ ig a well-established rule that whenever a husband 
 
 sidered and wifo join in mortgaging the wife's estate of inheritance 
 
 {/) Hyde v. DaUaway, 2 Ha. 528. 
 
 (;n) Tridock v. Jiobi/,' 12 Sim. 402 ; 
 2 Ph. 39.5 ; Stansfiel'd v. Bohson, 3 
 De M. & G. 620. 
 
 (n) Ibid. ; St. John v. Boughton, 9 
 
 Sim. 219. 
 
 (o) Thompson v. Bowyo; 9 Jur. 
 N. S. 863. 
 
 {p) Kinsman v. Rouse, 17 Ch. D. 
 104 ; Forster v. Patterson, ib. 132.
 
 MORTGAGE OF WIFE's PROPERTY. 227 
 
 for the benefit of the husband, her estate will be con- only a* a 
 sidered only as surety for his debt ; and on the husband's ""'^^ ^* 
 death the wife or her heir will be entitled to have her 
 estate exonerated out of his property, and may if necessary 
 prove with other creditors for the debt (q). 
 
 Upon the same principle where a wife paid her husband's If wife 
 mortgage debt by a loan out of her separate estate, she f,lll ^^^^' 
 was held entitled to stand in the place of the mortgagee (r), she may 
 and where she joined with him in charging her estate she place of 
 was similarly entitled (s). A fortiori if she alone mort- *^® ™*''"*" 
 
 , . gagee. 
 
 gages her separate estate to raise money for her husband, 
 
 she is in the same position as any other of his creditors (t). 
 
 But in order to claim exoneration from the husband's But the 
 
 estate, the debt must be distinctly his debt. A mortgage 'y^l his""**' 
 
 of the wife's estate in order to pay debts contracted by ^1*^^*- 
 
 her before marriage (;:), or a mortgage effected before her 
 
 marriage, which the husband afterwards covenants to pay, 
 
 will not be charged against the husband's property to 
 
 exonerate that of the wife (a-). And the same rule applies 
 
 if the wife receives into her own hands or has the absolute 
 
 disposal of the mortgage money (y). The burden of proof The 
 
 is not, however, on the wife, to show that the money was proof on 
 
 applied for her husband's benefit, but it is for his represen- j:'^'' l'""' 
 
 tatives to show that it was not so (z) ; and they may avail represen- 
 
 themselves of parol declarations of the wife for this pur- ^ '^^^" 
 
 jiose (ft). 
 
 Where the wife's estate is mortgaged, notwithstanding Resulting 
 
 fff 
 that the equity of redemption is reserved to the heirs of t^e wife. 
 
 the husband, there will be a resulting trust for the wife 
 
 and her heirs (6). The mere form of reservation is not 
 
 (q) Hudson V. Carmickael, Kay, (.r) Bagot v. Oughton, 1 P. Wms. 
 
 613, 620 ; Pitt v. P., T. & R. 180. 347. 
 
 ()•) Parteriche v. Potvlet, 2 Atk. (y) Clinton v. Hoopei; 1 Ves. jr. 
 
 384. 173 ; 3 Bro. C. C. 20L 212 ; Thomas 
 
 (s) Ibid. ; Robinson v. Gee, 1 Yes. v. T., 2 K. & J. 79. 
 
 sr. 252. (z) Kinnoul v. Money, 3 Swanst. 
 
 (i) Hudson v. Carmickael, sup. 202, 208 n. 
 
 (m) Lewis V. Nangle, 1 Cox, 240 ; (a) Clinton v. Hoopei; sup. 
 
 Amb. 150. (b) Broad v. B., 2 Ch. Ca. 161, 
 
 Q 2
 
 228 MOKTOAGES. 
 
 sufficient to alter tlie previous title, but is considered as 
 an inaccuracy or mistake to be corrected by the state of 
 the title as it was before the mortgage (c). 
 
 Nevertheless, if it appears to have been the intention of 
 the wife to alter the limitation of the equity of redemption, 
 effect will of course be given to it. The presumption is 
 the other way, but may be rebutted by satisfactory evi- 
 dence (d). 
 
 VII. Mortgages of Personalty. — Bills of Sale. 
 
 For the protection of creditors against secret disposi- 
 tions of property to their prejudice, and at the same time 
 for the protection of debtors against the machinations of 
 money-lenders, mortgages of personal chattels have been 
 made the subject of special legislation. 
 
 Before, however, directing attention to the provisions of 
 the Acts by which such transactions are regulated, it is 
 necessary to refer to certain rules which, apart from the 
 statutes, distinguish mortgages of personalty from mort- 
 gages of real estate. 
 Mortgage First, the distinction must be observed between a mort- 
 wUh^''*'^ gage and a pledge, a distinction analogous to that of 
 pledge. Roman Law between the contracts of hypotheca and 
 ly'igniis. 
 
 We have seen that a mortgage is a conveyance or transfer 
 of property upon condition, becoming absolute if the con- 
 dition is not performed, but subject to be avoided by per- 
 formance of the condition. And this definition is as 
 applicable to mortgages of personalty as to those of 
 realty. 
 Pledges. A pledge or pawn, on the other hand, is a security 
 
 created by the actual or constructive delivery of the 
 possession of a personal chattel to a bailee, or pledgee, the 
 
 (c) Ruscombe v. Hare, 6 Dow. 1 ; ((/) Jackscm v. James, 1 Bli. 104 ; 
 
 2 Bli. N. S. 192. Reeve v. Hicks, 2 S. & S. 403.
 
 MORTGAGES OF PERSONALTY — RILLS OF SALE. 229 
 
 general property in the chattel remaining in the pledgor; 
 the pledgee having only a special property or right of 
 retainer until the payment of the debt secured (e). Tlie 
 law as to pledges does not require detailed exposition here, 
 falling rather under the head of bailments at Common 
 Law than under any doctrine of equity. 
 
 A pled.iree may indeed sue in equity for foreclosure and Kemedies 
 sale of his pledge (/), and if a time for redemption has l^^'^*^^- 
 been fixed by the contract, he may, on giving due notice 
 to the pledgor, sell without applying for the authority of 
 a judicial decree {g). A Court of Common Law is, how- 
 ever, the proper forum for a pledgor seeking to redeem, 
 unless the need of some special equitable relief, such as 
 account or discovery, or an assignment of the pledge 
 necessitates an appeal for equitable assistance (/<). 
 
 Mortgages of leaseholds generally follow the analogy of Lease- 
 those of freeholds, giving rise to the same remedies of 
 foreclosure or sale on the one hand, and redemption on 
 the other. There is, however, an important distinction Personal 
 between such mortgages and mortgages of personal chattels. 
 The latter are indeed subject to redemption in the usual 
 way {i) ; but the mortgagee, after breach of condition, has 
 a right to sell, upon giving due notice, without suing for 
 foreclosure (A'). 
 
 But the chief distinctions relating to such mortgages Bills of 
 are those which arise from the provisions of the Bills of '^ ^ ' ^^^' 
 Sale Acts, 1854 and 1878 {I). The former Act applies to 
 all bills of sale executed before the 1st of January, 1879 ; 
 the latter to all since that date. Their provisions are in 
 the main the same, the later Act differing from the earlier 
 chiefly in the stringency of the regulations required, and 
 
 (e) Jones v. Smith, 2 Ves. jr. (li) Jones v. Smith, sup. 
 
 372, 378. (0 Kemp v. Wcsthrook, sup. 
 
 (/) Exp. Mountfort, 14 Ves. (k) Tucker \. Wilson, 1 P. Wms. 
 
 606. 261. 
 
 (g) Martin v. Reid, 11 C. B. N. S. (l) 17 & 18 Vict. c. 36 ; 41 & 42 
 
 730 ; Kemp v. Wcsthrook, 1 Ves. sr. Vict. c. 31. 
 278.
 
 230 MORTGAGES. 
 
 in its greater comprehensiveness and clearness of defini- 
 tion. 
 17 & 18 The causes and purposes of the Acts are well indicated 
 
 'in the preamble of that of 1854, which recites that, " Frauds 
 are frequently committed upon creditors by secret bills of 
 sale of personal chattels, whereby persons are enabled to 
 keep up the appearance of being in good circumstances 
 and possessed of property, and the grantees or holders of 
 such bills of sale have tlie power of taking possession of 
 the property of such persons to the exclusion of the rest 
 of their creditors." 
 Section 1. To check such dishonest obtaining of credit, and to 
 tion!^ " place at least within the reach of the inquiries of creditors 
 and purchasers, knowledge of all transactions of the kind 
 respecting personal chattels, the Act of 1854 provided that 
 every absolute or conditional bill of sale of personal chattels, 
 whereby the grantee or holder should have power, with or 
 without notice, immediate or future, to seize or take 
 possession of any property and effects subject to such bill 
 of sale, should unless registered as therein directed within 
 twenty-one days after the making thereof, be void as 
 against the assignees in bankruptcy, or under an assign- 
 ment for the benefit of creditors of the person whose 
 goods were comprised in the bill of sale, and as against all 
 sheriffs' officers and other persons seizing any property or 
 effects comprised therein in the execution of any process 
 of the Courts of law or equity, so far as regarded the pro- 
 perty in or right to the possession of any personal chattels 
 comprised in such bill of sale, which at or after the time 
 of such bankruptcy, or the execution of such assignment 
 for the benefit of creditors, or of the executing such 
 process, and after the expiration of the twenty-one days 
 should be in the possession, or apparent possession, of the 
 person making such bill of sale (m). 
 Bill of sale A bill of Sale was defined as comprising assignments, 
 defined. transfers, declarations of trust without transfer, and other 
 
 (nl) S. 1.
 
 MORTGAGES OF PERSONALTY — BILLS OF SALE. 231 
 
 assurances of personal chattels, and also powers of attorney, 
 authorities, or licenses to take possession of personal 
 chattels as security for any debt; but not comprising 
 certain other specified dispositions, the most important of 
 which are assignments for the benefit of creditors, and 
 marriage settlements. 
 
 Personal chattels were somewhat vaguely defined as Personal 
 meaning goods, furniture, fixtures, and other articles defined! 
 capable of complete transfer by delivery, and as not 
 including chattel interests in real estate, nor shares in 
 stocks or public companies. 
 
 Apparent possession was also dimly explained as mean- Apparent 
 ing the remaining or being in or upon any house, mill, P"^"'^'**''""- 
 &c., or other premises occupied by the giver of the bill of 
 sale, or as being used or enjoyed by him in any place 
 whatever (n). 
 
 The great number and difficulty of the questions arising 
 respecting the interpretation of this Act necessitated 
 further legislation for their satisfactory solution. At the 
 same time it was equally necessary to provide for and 
 counteract some ingenious evasions of the Act which had 
 been invented by keen practitioners. Hence the more 
 detailed and stringent measure of 1878 (o). 
 
 It would occupy too much space here to quote in par- 41 & 42 
 ticular the j)rovisions of this important statute, to which 
 every student should refer for himself It must suffice to 
 summarize its effects. 
 
 1. As to registration. This Act requires that the execu- Reffistra- 
 tion of every bill shall be attested by a solicitor of the 
 Supreme Court, and that the attestation shall state that 
 before its execution its effect was explained by the solicitor 
 to the grantor ; also that the bill with every schedule and 
 inventory annexed thereto, with true copies of such bill 
 and schedule or inventory, and of every attestation of its 
 execution, and with an affidavit of the time of its execution 
 and attestation, and a description of the residence and 
 
 (») s. 7. (o) 41 & 42 Vict. c. 31.
 
 2:52 JKJKTGAGKH. 
 
 occupation of the person giving the same and of the attest- 
 ing witnesses, shall be filed with the registrar within seven 
 clear days after the making or giving of such bill of sale. 
 If two or moi-e bills of sale are given comprising in whole 
 or in part the same chattels, they shall have priority in 
 order of the date of their registiation as regards such 
 chattels (p). Moreover, the registration of a bill of sale 
 must be renewed every five years (q) ; and where a sub- 
 sequent bill of sale is executed within or on the expiration 
 of seven days after the execution of a prior unregistered bill 
 of sale, and comprises all or any part of the personal chattels 
 comprised therein, and is given as security for the same or 
 any part of the same debt, such subsequent bill shall be 
 absolutely void as regards such chattels and debt, unless 
 proved to have been given hond fide to correct some 
 material error in the prior bill of sale (r). 
 Definitions 2. The definition of the term " bill of sale " is in the 
 bill of sale, j^^^ ^^ jj^yg somewhat amplified, being in particular ex- 
 pressed to include " inventories of goods with receipt thereto 
 attached or receipts for purchase monies of goods," " and 
 also any agreement 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" (s). 
 Personal 3. The expression " personal cliattels " is also more fully 
 explained. Growing crops were held not to be within the 
 Act of 1854 (t); and great difficulties arose in deciding 
 what was a bill of sale of fixtures within the Act (u). The 
 Act of 1878 has expressly provided for these cases by enact- 
 ing that fixtures and growing crops when separately 
 assigned or charged shall be deemed personal chattels; but 
 not fixtures (except trade machinery as elsewhere described) 
 when assigned together with a freehold or leasehold in- 
 terest in any land or building to which they are affixed; 
 
 chattels. 
 
 {p)s. 10. 
 
 349 ; 2 lb. 212. 
 
 (q) S. 11. 
 
 (u) Exp. DagUsh, 8 Ch. 1080 ; 
 
 {?•) s. 9. 
 
 Waterfall v. Perristone, 3 Jur. N. S. 
 
 (s) s. 4. 
 
 17 ; 6 E. & B. 876. 
 
 {t) Brantom v. Grlffits, 1 C. P. D. 

 
 MORTGAGES OF PERSONALTY — BILLS OF SALE. 2o3 
 
 nor growing crops when assigned together with any interest 
 in the land on which they grow (x). Fixtures and growing 
 crops are not to be deemed to be separately assigned or 
 charged by reason only that they are assigned or charged 
 by separate words, or that power is given to sever them, if 
 by the same instrument any freehold or leasehold interest 
 in the land or building to which they are affixed or in the 
 land on which such crops grow, is also conveyed or assigned 
 to the same persons or person (y). 
 
 Trade machinery is the subject of important new pro- 
 visions. A detailed and exhaustive definition thereof is 
 given, and it is expressly declared to be within the expres- 
 sion personal chattels. 
 
 4. The definition of the term " apparent possession " Apparent 
 remains in the Act of 1878 the same as in that of 1854. P°''^®^*^°^- 
 The " occupation " must be a de facto occupation ; mere 
 tenancy without residence will not suffice (z), but if the 
 debtor is allowed the use of the goods, notwithstanding the 
 formal putting a man into possession for the grantee, the 
 debtor is none the less deemed to be in apparent posses- 
 sion (a). Secus, however, if the man in possession really 
 has control of the goods (6). Wrongful possession takes a 
 case out of the Act (c). 
 
 It is enacted (d) that chattels comprised in a bill of sale 
 which has 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. 
 
 It must suffice here to specify these salient points of import- 
 ance in connexion with the Bills of Sale Acts,but the student 
 is recommended to refer carefully to the Acts themselves, and 
 he will find an exhaustive comparison and ex^Dosition of the 
 two statutes in Coote on Mortgages, pp. 459 — 480, 4th edit. 
 
 (x) s. 4. Ch. 626. 
 
 {y) s. 7. (6) lie Francis, 10 Ch. D. 408, 
 
 (z) Robinson v. Bvvjgs, 6 L. R. 414. 
 Exch. 1. (c) Exp. Fletcher, 5 Ch. D. 809. 
 
 (a) Exp. Jay, 9 Ch. 697 ; Exp. (</) s. 20. 
 
 Hooman, 10 Eq. 63 ; Exp. Lewis, 6
 
 2:34 UKillTS OF MORTGAGOR AND MORTGAGEE. 
 
 Section II. — Rights of Mortgagor and Moutgagee. 
 
 I. Mortgagor in Possession. 
 
 II, Accounting. 
 
 III. Remedies of Mortgagees. 
 
 IV, Tacking. 
 
 Marsh v. Lee. 
 Brace v. Duchess of Marlborough. 
 V. Consolidation. 
 
 I. Rights of a Mortgagor in Possession. 
 
 Not ac- While a mortgagor remains in possession he is not 
 
 for profits, required to account for the rents and profits of the mort- 
 gaged estate (e); nor is his agent, or any person claiming 
 under his voluntary revocable deed (/). 
 
 He has not, however, an unrestricted power of dealing 
 After with the estate as its owner. As soon as default has been 
 liable to ^lade, he is in the position of a tenant at will of the 
 eviction, mortgagee ; he is liable to eviction without any notice (g) ; 
 and, herein differing from a tenant at will, he has no right 
 to the emblements, these being part of the security (h). 
 Powers of By 44 & 45 Vict. c. 41, s. 18, a mortgagor in possession 
 44 * 4'! ^^ enabled to make certain leases valid against any in- 
 Vict. c. 41 cumbrancer, and a mortgagee in possession is enabled to 
 make similar leases valid against all prior incumbrancers 
 and the mortgagor. The leases so authorised are agri- 
 cultural leases for twenty-one, and building leases for 
 ninety-nine years, taking effect in possession not later than 
 twelve months after date ; they must reserve the best 
 reasonable rent, and in other respects comply with the 
 provisions of the Act. The Act comes iuto operation on 
 the 1st Jan., 1882, and only applies to mortgages made 
 
 (c) Caiman v. I), of St. Albans, 3 ('/) Doe d. Roby v. Maisi/, 8 B. & 
 
 Vcs. 25. C. 767. 
 
 (/) Ude V. J^cxlcy, 20 Beav. 127. (A) Kccch v. Hall, Doug. 22.
 
 MORTGAGOR IN POSSESSION. 235 
 
 after that date. These powers may, moreover, be excluded 
 or increased by express contract. In cases not within the 
 statute, neither mortgagor nor mortgagee could alone 
 make a valid lease, unless, of course, power so to do was 
 reserved by the deed (i), or under exceptional circum- 
 stances (/i'). 
 
 Since the produce of the land is considered as part Mortgaj,'or 
 of the security, a mortgagor in possession may be re- resh-aiLd 
 strained by ini unction from committing: waste on the ^'""^ 
 
 waste 
 
 estate (I). A mortgagee is not indeed, as a matter of if the' 
 course, entitled to such an injunction ; it is necessary for ^^"l^"^^! 
 him to show that his security is likely to be prejudiced endan- 
 thereby, being already, or in consequence of the waste ^^^^ ' 
 in danger of becoming, insufficient (»i). 
 
 Mortgaged shares may qualify the mortgagor to act 
 as a director of a company [n). The mortgagor of an 
 advowson has, on the living becoming vacant, a right to 
 nominate, and may compel the mortgagee to present his 
 nominee, notwithstanding an express agreement to the 
 contrary (o). 
 
 Previous to the Jud. Act, 1873 [p], a mortgagor, though Can sue in 
 
 in possession, could not sue in his own name to recover the name 
 
 land or its rent against a lessee to whom he had leased the under Jud. 
 
 ° Act, 1873, 
 
 land before the mortgage, nor could he sue a trespasser or s.25,s.-8. 5. 
 
 other wrong -doer in his own name for damages. By this 
 statute this disability has been removed, and it is enacted 
 that " a mortgagor entitled for the time being to the pos- 
 session or receipt of the rents and profits of any laud, as 
 to which no notice of his intention to take possession, or 
 to enter into the receipt of the rents and profits thereof 
 shall have been given by the mortgagee, may sue for such 
 possession or the recovery of such rents and profits, or to 
 prevent or recover damages in respect of any trespass or 
 
 {i) KeecK v. Hall, Doug. 22. 9 Ch. D. 610. 
 
 \k) Hungerford v. Clay, 9 Mod. 1. (u) Mackenzie v. Robinson, 3 Atk. 
 
 ll) Farrant v. Lonll, 3 Atk. 723. 558. 
 
 (m) King V. Smith, 2 Ha. 239. {p) 3G & 37 Vict. c. 66. 
 
 {n) Pidbrook v. Richmond ttc. Co.,
 
 23G 
 
 RIGHTS OF MOKTGAGOll AND MORTGAGEE. 
 
 other wrong relative thereto, in his own name only, unless 
 the cause of action arises upon a lease or other contract 
 made by him jointly with any other person (q). 
 
 Mortgagee 
 in posses- 
 sion must 
 account 
 strictly. 
 If no 
 arrears 
 when pos- 
 session 
 taken, 
 annual 
 rests. 
 
 Except in 
 mortgage 
 of lease- 
 holds 
 where 
 security is 
 deficient. 
 
 If interest 
 in arrear, 
 annual 
 I'ests not 
 directed. 
 
 Until 
 
 II. Accounting between Mwtgagor and Mortgagee. 
 
 1. The mortgagee, when in possession, must strictly 
 account for the rents and profits of the mortgaged estate, 
 and if he occupies any part of it himself he will be charged 
 an occupa,tion rent (r). If there be no arrears of interest 
 due at the time he takes possession, and the rents and 
 profits exceed the amount of the interest, the account will 
 generally be taken with annual rests, so that the excess of 
 rent may be annually applied in reducing the principal (.s). 
 And this applies as well in the case of an occupation rent 
 as in that of other rents and profits (t). 
 
 In the case, however, of a mortgage of leasehold property, 
 where there is no reasonable certainty that the ground 
 rent and insurance will be duly paid, or the houses kept 
 in repair, the mortgagee is entitled to enter into possession 
 even though no interest is in arrear ; and in such a case 
 annual rests wall not be directed against him (u). The 
 burden of proving the reasonableness of his entry into 
 possession is, however, upon the mortgagee (x). 
 
 If the interest is in arrear when the mortgagee enters 
 into possession, annual rests will, as a rule, not be 
 directed (y) ; and where the liability to account without 
 annual rests has thus once commenced it continues on the 
 same footing until changed by some further agreement (s). 
 The fact that the arrears of interest are subsequently paid 
 off does not of itself entitle the mortgagor to have rests 
 directed in his favour («). If, however, the whole of the 
 
 (q) s. 25, sub-s. 5. 
 (r) Smart v. Hunt, 1 Vem. 418, n. 
 (s) Shepherd v. Eniott, 4 Mod. 254. 
 \t) Wils(m V. Mdccdfe, 1 Russ. 
 530. 
 (n) Patch V. Wild, 30 Beav. 99. 
 
 (x) Ibid. 
 
 (y) Wilson v. Cluer, 3 Beav. 136. 
 
 (z) Scholejidd v. Lockwood, 32 
 Beav. 439. 
 
 (a) Davis v. Mai/, G. Coop. 238 ; 
 19 Ves. 383.
 
 ACC01TNT1N(1. -I'M 
 
 debt is paid off by the recei[)t of the rents, from that ylmle debt 
 time annual rests will be decreed (b). 
 
 2. A mortgagee in possession who sells part of the Ai>plifa- 
 mortgaged property under a power of sale in the mort- cgg'^g X*^' 
 gage, must apply the proceeds of sale, first in payment of ^ale. 
 interest and costs, and then either pay the balance to the 
 mortgagor, or apply it in reduction of the principal due 
 
 on the mortgage (hh). A rest will always be directed at the 
 time of the sale if any surplus of sale money beyond the 
 interest and costs is retained by the mortgagee, notwith- 
 standing that interest may have been in arrear when he 
 entered into possession (c). 
 
 3. A mortgagee in possession liolding over after payment IM^i'tgagee 
 
 n 1 • ^ ■ •^^ T \ i • i • holding 
 
 or his claims will be charged with any surplus receipts, and over after 
 
 with simple interest at four per cent, thereon (d). The ^"^^ P*'^" 
 
 Court may in its discretion direct compound interest (e). 
 
 In accounting, a mortgagee in possession is, as a rule, Mortgagee 
 
 only liable for fair rents and profits, or for what he has chaVo-ed 
 
 actually received. If, however, he has been guilty of wil- "^^^^ ^*^f* 
 „,,„,. . . » J he actually 
 
 ful default in not receiving them, as by turning out a good receives. 
 
 tenant, or by letting at less than is offered, he will be 
 
 charged with what he might have received (/). 
 
 4. A mortgagee in possession is liable to account for any Account of 
 damage done to the property, as by pulling down buildings exIJeif-^*'' 
 improperly (g), or by destroying or losing the title deeds (Ji). Jiture, 
 On the other hand, he will be allowed for money laid out 
 
 in necessary repairs, with interest thereon (/). So also he 
 will be allowed the costs of protecting the title of the 
 mortgagor (k). 
 
 5. Further, he will be allowed for moneys laid out with ^^^'^^ 
 
 J , / moneys 
 
 the mortgagor s consent or acquiescence in the improve- paid for 
 
 (6) Wilson V. Clue); sup. 493 ; Parkinson v. Hanhury, 2 L. 
 
 (hh) And see 44 & 45 Vict. c. 41, R. H. L. 1. 
 
 s. 21. [g) Sandon v. Hooper, 6 Beav. 
 
 (c) Thompson v. Hudson, 13 Eq. 246. 
 
 497. [h) Broivn v. Sewell, 11 Ha. 49. 
 
 (d) Quarrel v. Brcl-ford, 1 Madd. (i) Sandon v. Hooper, sup. ; Ei/re 
 269. V. Hughes, 2 Ch. D. 148. 
 
 (e) Wilson v. Metcalfe, sup. (k) Sandon v. Hooper, sup. ; Par- 
 
 (f) Hughes v. Williams, 12 Ves. . ker v. Watkins, Johns. i33.
 
 238 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 improve- 
 ments con- 
 sented to. 
 
 Specu- 
 lative out- 
 lay not 
 required, 
 or proper. 
 
 Waste 
 only 
 allowed 
 when 
 
 security in- 
 sufficient. 
 
 44 & 45 
 Vict. c. 41. 
 
 Property 
 must be 
 preserved. 
 
 Smploy- 
 ment 
 of mort- 
 gaged ship, 
 
 ment of the property {I). He may not, however, lay out 
 money so as largely to increase the value of the property, 
 and thus place it beyond the power of the mortgagor to 
 redeem (m). 
 
 He is not bound to engage in any speculative adventure 
 for the benefit of the estate, as by opening mines or quar- 
 ries (n), Avhich must be at his own risk and hazard. If 
 mines are already opened, he should not make large outlay 
 in improving them (o). 
 
 G. Until recently it was only when a mortgaged estate 
 was insuflficient in value to pay the mortgage, that a mort- 
 gagee in possession might open mines and cut timber (p). 
 If, having a sufficient security, he committed such waste, 
 he was charged with the gross receipts, and disallowed the 
 expenses of working (q). Now he is empowered when in 
 possession to cut and sell timber and other trees ripe for 
 cutting, not planted or left for shelter or ornament. This 
 applies only to mortgages made after Dec. 81st, 1881. 
 
 A mortgagee in possession is responsible for the in- 
 tegrity of the property ; thus a mortgagee was required 
 to account for the proceeds of coal dug from the mort- 
 gaged laud by the trespass of adjacent coal-owners (r). 
 Formerly a mortgagee of houses could not insure them 
 against fire at the mortgagor's expense in the absence of 
 an express agreement with him, nor could he require the 
 mortgagor to insure them. The power to insure and add 
 the premiums to the mortgage debt was given by Lord 
 Cran worth's Act (s) ; and by 44 & 45 Vict. c. 41, ss. 19 
 and 23, this power is confirmed and regulated, the in- 
 surance money being limited, in the absence of stipulations 
 to the contrary, to two-thirds the value of the property. 
 
 7. The mortgagee in possession of a ship is not charge- 
 able, if in the exercise of a fair discretion he refrains from 
 
 (/) Trimleston v. HaniiU, 1 Ba. & 
 Be. 385. 
 
 (m) Sandon v. Hooper, 6 Beav. 
 246. 
 
 (n) Ilughesv. Wmiams,12Yes. 493. 
 
 (o) Roire V. Wood, 2 J. & W. 553. 
 (p) MlUett V. Davy, 31 Beav. 470. 
 (q) Ibid. 
 
 (r) I/ood V. Easton, 2 Gifif. 692. 
 (s) 23 & 24 Vict. c. 145, s. 11.
 
 REMEDIES OF THE MORTGAGEE. 239 
 
 selling it; and if he cannot reasonably etfoct a sale, ho 
 may employ the ship in accordance with the ordinary 
 course of business (t). 
 
 8. A mortgagee is allowed his costs of an action of re- Costs as 
 demption or foreclosure ; they will be taxed as between '^artv and 
 party and party (it). party. 
 
 III. Remedies of the Mortgagee. 
 1. A mortgagee, being the legal owner of the estate, is Mortgagee 
 
 entitled to 
 possession. 
 
 on default of payment entitled at law to immediate posses- ^^^ ^ ^ 
 
 sion, or to the receipt of the rent if the land be in lease ; 
 and equity will not interfere to prevent him from pursu- 
 ing his remedy. He may enter into possession at any 
 time, and without notice (v). 
 
 2. He has also, of course, a right at any time after pay- May sue 
 ment of the debt has become due, to sue the mortgagor n'bt^^ 
 for the money. Moreover, as it would be unjust that a 
 mortgagee should be subject to a perpetual account by the 
 perpetual continuance of the mortgagor's equity of redemp- 
 tion, he is allowed, after giving a reasonable notice for the 
 payment of the debt, to come into equity and sue for the 
 foreclosure of the equity of redemption ; in other words, and for 
 he may seek a decree which will give him the entire equit- closure oi 
 able as well as the legal interest in the property ; or in the '^^le- 
 alternative, he may seek the enforcement of a sale of the 
 estate. 
 
 3. An additional remedy is sometimes provided for a Attorn- 
 mortgagee by the insertion in the mortgage deed of an ™ause. 
 attornment clause, that is, a proviso that in case default 
 shall be made in payment of the mortgage debt, the 
 mortgagor shall co\itinue to remain in possession as a 
 tenant of the mortgagee, paying a certain specified rent, 
 
 (t) Marriott v. The Anchor iL-c. E. 8. 
 Co., 2 Giff. 457 ; 3 De G. F. & J. (r) Per Sir W. Grant, M. R. 2 
 
 177. Mer. 359 ; Loios v. Telford, 1 App. 
 
 (u) The Kestril, 1 L. R. A. & C. 414.
 
 240 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 usually the same in amount as the interest. This provi- 
 sion enables the mortgagee, if necessary, to utilise the 
 special remedy provided for the recovery of rent by land- 
 Distraint, lords; namely, distraint. Whether the rent reserved equals 
 or exceeds the interest, the mortgagee has a prmid facie 
 right to apply the proceeds of a distress in satisfaction of 
 Rent miist principal as well as interest (w). The rent reserved must, 
 be reason- j^Q-^gyer, be of reasonable amount with regard to the value 
 not of the premises (a-). If it is exorbitant, or the attornment 
 
 amounting ^^ expressed only to come into operation on bankruptcy, it 
 lent pre- will be deemed a fraudulent preference and void (y). 
 erenee. ^ rpj^^ remedies of foreclosure and sale being equitable 
 
 are subject to equitable conditions which require detailed 
 consideration. 
 Action for (l.j The usual course pursued on foreclosure is for the 
 closure. mortgagee to bring his action praying that an account 
 Usual j^-^g^y ]3Q taken of the principal debt and interest, that the 
 defendant may be decreed to pay the same with costs by 
 an early day to be appointed by the Court, and that in 
 default thereof he may be foreclosed his equity of redemp- 
 tion. If there are prior incumbrances, he must also offer 
 to redeem them (z). On the defence coming in there is 
 a reference to chambers to take the account, and a judg- 
 ment is made for payment of principal, interest, and costs 
 within six calendar months after the chief clerk's certificate 
 of what is due on the account, or in default that the 
 mort£aofor shall stand foreclosed. If default is made the 
 order for foreclosure is made absolute ; and on being signed 
 and inrolled the foreclosure is complete (a). 
 Sale (under (9.) Before the passing of the Chancery Amendment 
 Vict. c. 86) Act (6), Courts of equity would not, as a rule, decree a 
 may be g^jg instead of a foreclosure of the mortgaged estate against 
 
 directed • ^ n ^ ro ^ • • 
 
 in discre- the wish 01 the mortgagor, it the estate was situate m 
 
 {w) Exp. Harrison, 18 Ch. D. 127. (z) Inman v. Wearing, 3 De G. & 
 
 (a;) lie Stockton <vc. Co., 10 Ch. Sm. 729. 
 D. 335. {a) Coote, 991. 
 
 {y) Exp. Williams, 7 Ch. D. 138 ; (6) 15 & 16 Vict. c. 86. 
 
 Exji. Jackson, 14 Ch. D. 725.
 
 REMEDIES OF THE MORTGAGEE. 241 
 
 Ireland or the Colonies, or if it was a dry reversion or an ^\on of the 
 advowson, or the security was insufficient, they might 
 have done so (c). But by that Act the Court of Chancery 
 was empowered to direct a sale in any case, on such terms 
 as it might think fit (d). Wherever there is such compli- 
 cation of interests that the common foreclosure decree 
 cannot be conveniently worked, or it is manifestly for 
 the benefit of all parties, a sale has since been usually 
 directed (e). And it may be directed at once, without the 
 concurrence of the mortgagor (/). 
 
 (3.) Even before the statute, in the case of a foreclosure Where 
 suit against an infant heir or devisee of the mortgagor, there devisee of 
 was, with the mortgagee's consent, usually an inquiry mortgagor 
 whether foreclosure or sale would be more beneficial for infcant. 
 the infant (g) ; though the mortgagee might have insisted 
 on a foreclosure (h). The decree is binding on the infant, Day to 
 unless on being served with a subpoena to show cause l^^e 
 against the same, he shall within six months after attaining 
 his majority show to the Court good cause to the contrary. 
 This he must do by putting in a new defence, and showing 
 error in the decree (i). The same rule, however, does not 
 apply to married women, against whom the ordinary pro- 
 cedure is employed, without a day being given to show 
 cause (k). 
 
 (4.) Even after a foreclosure has been absolutely decreed. Time may 
 signed, and enrolled, the Court will show indulgence to the laro-ed 
 mortgagor by enlarging the time for payment, if a proper ^^*®'' 
 case can be shown, and the security be not deficient (/). 
 There must, however, be a strong reason shown, and an 
 immediate payment of interest and costs (m). A decree or decree 
 
 (c) Coote, 992-3. 352 ; Davis v. Dowding, 2 Keen, 
 
 (d) s. 48. 245. 
 
 (e) Hurst v. H., 16 Beav. 372. (h) Malloclc v. Gallon, sup. 
 
 (/) Neimnan v. Selfe, 33 Beav. [l] TJiornhill v. Manninfj, 1 Sim. 
 
 522. N. S. 451 ; Cocker v. Beds, 1 Ch. 
 
 {g) Mondey v. M., 1 V. & B. 223. Ca. 61. 
 
 (h) Williamson V. Gordon, 19 Ves. (m) Coomhe v. Stewart, 13 Beav. 
 
 114. 111. 
 
 {)) Mallock V. Gallon, 3 P. Wms.
 
 242 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 reopened 
 under 
 special 
 circum- 
 stances. 
 
 Power of 
 Bale, and 
 appoint- 
 ment of a 
 receiver, 
 under 
 23 & 24 
 Vict. 0.145, 
 incident to 
 every 
 mortoage. 
 
 44&45 
 Vict. c. 41. 
 
 remedies 
 may be 
 pursued 
 con- 
 currently. 
 
 of foreclosure has been reopened even after the mortgagee 
 has been in possession sixteen years (n) ; but only under 
 special circumstances, such as fraud or collusion in obtain- 
 ing the decree (o). 
 
 (5.) The necessity for a foreclosure suit is gene- 
 rally obviated by the insertion of a power of sale in 
 the mortgage deed ; a power, however, which in no way 
 prejudices the right to foreclosure (p). By Lord Cran- 
 worth's Act (q), a power of sale, and a power to require the 
 appointment of a receiver, were rendered incident to every 
 mortgage or charge by deed affecting any hereditaments 
 of any tenure or any interest therein, executed after the 
 28th August, 18G0. By 44 & 45 Vict. c. 41, ss. 19, 20, 
 these powers have been confirmed. The power of sale, 
 however, cannot be exercised until notice requiring pay- 
 ment of the mortgage money has been served on the 
 mortgagor, and default has been made in payment thereof 
 for three months after such service, or until some interest 
 under the mortgage is in arrear and unpaid for two 
 months after becoming due, or until there has been a 
 breach of some provision contained in the mortgage or 
 in this Act other than a covenant for payment of the 
 mortgage money and interest. Under the previous Act, 
 which still governs mortgages executed previously to the 
 1st of January, 1882, six months' notice in writing was 
 required, and the power could not be exercised until the 
 principal debt had been due a year, or the interest was in 
 arrear six months. In both cases the powers in question 
 may be excluded by express stipulation. 
 
 5. The general rule of equity has been that a party 
 suing at law cannot sue in equity at the same time. A 
 mortgagee has, however, always been permitted to pursue 
 all his remedies at the same time. He may at once eject 
 
 (w) Burgh v. Lancjton, 5 Bro. P. 
 C. 213. 
 
 (o) Lo7jd V. Mansd, 2 P. Wms. 16 
 73. 
 
 (i?) Slade V. I^igrj, 3 Ha. 35. 
 (q) 23 & 24 Vict. 0. 145, ss. 11-
 
 REMEDIES OF THE MORTGAGEE. 24'3 
 
 the mortgagor, sue on the covenant for payment in his 
 deed, and on a bond given as a collateral security, and also 
 proceed in equity for foreclosure or sale. If he obtains 
 full payment on the bond or covenant, or by receipt of 
 the rents and profits, the mortgagor is entitled to redeem 
 the estate, and there can be no foreclosure or sale ; but if 
 only partially paid, he may still go on and foreclose (u). 
 
 On the other hand, if he first forecloses, it depends on But action 
 circumstances whether, on alleainff that the estate is "^" ^T"^'., 
 
 I o o ment after 
 
 insufficient to satisfy his debt, he will be allowed to go on foreclosure 
 with a personal action for the balance. The effect of such the^fore- 
 a personal action must be to reopen the foreclosure, and closure, 
 give the mortgagor a renewed right to redeem. If, then, and 
 the mortgagee still has the estate in his power, there is no f^^'^^^f,/"^ 
 objection to his action ; only on payment of the whole unless 
 debt he must reconvey the estate to the mortgagor. If, can^stuf^^ 
 on the contrary, he has so dealt with the mortgaged estate convey tlic; 
 as to be unable to restore it on tender of full payment — for 
 instance, if he has sold it — he can no longer sue for the 
 mortgage money (cc). Hence it is evident that his safest 
 course is first to pursue his legal remedies, and then to 
 have recourse, if necessary, to those of equity. 
 
 6. If a mortgagor sues for redemption of a legal mort- Dismissal 
 gaffe, and the action is dismissed for any reason except for ^f redemp- 
 
 o o > J i tion action 
 
 want of prosecution, the dismissal operates as a decree of operates as 
 foreclosure against him. The action admits the debt and ofig,,^^'j 
 admits the mortgagee's title ; being dismissed he cannot 
 again sue for the same object, and the result is in effect 
 foreclosure (y). The dismissal, however, of the similar but not of 
 action respecting an equitable mortgage would not have a°ie'^"' " 
 the same effect (0). mortgage. 
 
 7. The following limitations affect the remedies of the Limlta- 
 mortgagee : 
 
 tioi). 
 
 (u) Palme)' v. Hcndrie, 27 Beav. 28 Beav. 341. 
 
 349, 351. (y) Marshall v. Shreivsbvri/, 10 
 
 (i) LocJchart v. Harchj, 9 Beav. Ch. 250. 
 
 349 ; Palmer v. I/cvcb-ic, sup. ; (") Und. 
 
 u2
 
 244 EIGHTS OF MORTGAGOR A.ND MORTGAGEE. 
 
 3 & 4 By 3 & 4 Will. IV. c. 27, it is enacted that after the 31st 
 
 c. 27, s. 40. of December, 1833, no action, suit, or other proceeding shall 
 be brought to recover any sum of money secured by any 
 mortgage, judgment, or lien, or otherwise charged upon or 
 payable out of any land or rent, but within twenty years 
 next after a present right to receive the same shall have 
 accrued, unless in the meantime some part of the principal 
 money or some interest thereon shall have been paid, or 
 some acknowledgment of the right thereto shall have been 
 given in wi'iting, signed by the person by whom the same 
 shall be payable, or his agent, to the person entitled thereto 
 or his agent ; and in such case no such action or suit or 
 proceeding shall be brought but within twenty years after 
 37 & 38 such payment or acknowledgment (a). By 37 & 38 Vict. 
 ^° '^' c. 57, this is repealed, but is re-enacted with the substitu- 
 tion of twelve years for twenty as the period of limitation. 
 It has been recently held that a foreclosure action is an 
 action to recover land, and not money secured (b) ; but by 
 the combined effect of 1 Vict. c. 28, and 37 & 38 Vict. c. 57, 
 the period of limitation is the same as that for the recovery 
 of money. 
 3 & 4 Again, s. 42 of 3 & 4 Will. IV. c. 27, provides that no 
 
 Will. IV. . . 
 
 c. 27, s. 42. rewt or interest in respect of any sum of money charged 
 
 upon land or rent shall be recovered by any distress or 
 
 action but within six years next after the same shall have 
 
 become due, or shall have been formally acknowledged by 
 
 the debtor or his agent. 
 
 3 & 4 And by 3 & 4 Will. IV. c. 42, it is enacted that all 
 
 Will. IV. 
 
 c. 42. actions of covenant or debt upon any bond or specialty 
 
 shall be sued and brought within twenty years after the 
 
 cause of such actions and suits, or within twenty years after 
 
 an acknowledgment by deed, or part payment, or part 
 
 satisfaction. 
 
 Effect of These limitations remain unaffected by the more recent 
 
 the . . 
 
 Btatutes. statute. The result is, that in the absence of a covenant or 
 collateral bond securing a mortgage debt, an action for its 
 
 (n) s. 40. (b) Ifarlock v. AsJihcrry, 18 Ch. D. 229.
 
 REMEDIES OF THE MOlirOAGKE. 245 
 
 recovery must be brought within twelve years from the 
 accruing of the right, or of an acknowledgment or payment 
 on account thereof ; an action for foreclosure must be 
 brought within the same period ; and an action for arrears 
 of rent or interest within a period of six years. If, how- 
 ever, there is tlie additional security of a bond or covenant, 
 the period of limitation of the personal remedy thereunder 
 is twenty years. 
 
 Formerly, if a trust term was created or agreed to be Trust term 
 assigned for securing the payment of principal and interest, mentT^' 
 express trusts being excepted from the Statutes of Limita- fo"nt=rl.y 
 tion, the amount of arrears recoverable was not limited from 
 to six years ; nor was an action for the principal limited "^^^it^tioo- 
 to twenty years (b). But by s. 10 of 37 & 38 Vict. c. 
 57, this effect of the security of an express trust was 
 removed, and in such a case the limitation as against the 
 land is now the same as if there were no trust (c). As 
 against the trustee it remains as before the statute. 
 
 IV. Tacking of Mortgages. 
 
 The case usually cited as the leading authority on the 
 doctrine of tacking is 
 
 MARSH V. LEE. 
 [2 Ventr. 337 ; 1 W. & T. L. C. G.59.] 
 
 In this case one English being seized of the manor of 
 Wicksall and of the manor of Monfield, mortgaged in 
 1649 part of the manor of Wicksall to Burrell for £1000. 
 Afterwards, in 1655, he acknowledged a statute to Burrell 
 of £800 for the payment of £400. In 1662 Englisli mort- 
 gaged both the manors to Mrs. Duppa for £7000. In 1665 
 English mortgaged the manor of Wicksall to Lee for 
 £7000. Lee had no notice of the former mortgages, but 
 he subsequently purchased Burrell's incumbrances. 
 
 The Lord Keeper Bridgeman, assisted by Hale, C.B., 
 and Eainsford, J., held that Lee might make use of these 
 
 (b) Cox V. Dolman, 2 De G. M. & G. o92. 
 
 (c) Fisher, Mtg., p. 365, ed. 3.
 
 24G RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 iucumbrauces to protect his own mortgage, for that he had 
 both law and equity on his side. He had law for that he 
 had a precedent mortgage in 1649, and also the statute in 
 1G55 ; so that, while these remained in force Marsh could 
 not come in. He had equity, for he having a subsequent 
 mortgage, yet it being without notice, he ought to be 
 relieved in this Court. 
 
 Principle The doctrine of tacking rests upon and illustrates two 
 "^' familiar maxims of equity — (1.) He who seeks equity must 
 do equity : (2.) Where equities are equal the law shall 
 prevail. It is equity that a debtor who has received a loan 
 on the security of an estate shall, when he seeks to redeem 
 his estate, pay all the debts which he owes to his creditor. 
 If in the meantime the debtor has borrowed money from 
 other persons on the same security, and the first creditor 
 having the legal estate therein has subsequently without 
 notice made further advances to the debtor, he has law and 
 equity on his side, and may tack his subsequent advance 
 to his original debt, notwithstanding that it may happen 
 to prejudice an intermediate incumbrancer who has only 
 an equitable security. Further, if a person lends his money 
 only upon an equitable security, but without notice of any 
 prior charge, he may, after receiving notice of such a charge, 
 protect his security by purchasing the legal estate from a 
 first incumbrancer ; his loan without notice giving him an 
 equal equity, and his securing the legal estate giving him 
 a preference at law. The subject naturally resolves itself 
 into two inquiries : first, as to the principles of tacking as 
 against the mortgagor and his representatives; secondly, 
 as to the principles of tacking as against mesne or inter- 
 mediate incumbrancers. 
 
 Mortgagor 1 . Tcickhig CIS cigcdnst the mortgagor and his represen- 
 
 oii redemp- , , • 
 tion must '^<^tlVeS. 
 
 pay prin- A mortgagor must, before redemption, pay not merely 
 
 interest, the principal and interest of the mortgage debt, but also 
 
 and costs. ^Y[ the proper costs incurred by the mortgagee. And these 
 
 included, costs include not only his costs of suits for redemption or
 
 TACKING OF MORTGAGES. 247 
 
 foreclosure, but all costs necessarily incurred by the mort- 
 gagee in maintaining the title to the estate (c), and 
 generally those costs to which we have above seen that he 
 is entitled in his accounts. 
 
 A mortgagee may, however, not only be refused his Mortgagee 
 costs, but may even have to pay the costs of the mortgagor have to 
 if he has necessitated a suit by refusing a tender of the full P^y ^°^^^- 
 amount due (d), or by setting up a groundless defence (c), 
 or has otherwise been guilty of vexatious conduct (/). 
 
 Again, the mortgagee cannot be deprived of his pledge Mortgcagor 
 without payment of all sums of money due to him from ^^jj J^.{|tf 
 his debtor which form a general or specific lien on the forming a 
 
 SDGcific 
 
 land ; if, therefore, the mortgagee advance money by way iien on 
 of further charge or on a judgment, neither the mortgagor, ^^^'^' 
 nor, as a rule, any one claiming under him, though for 
 valuable consideration and without notice, can redeem 
 without payment of the full amount (</). And equitable Eciuitable 
 liens and charges may, equally with legal ones, be thus ^^J^^ ^ 
 tacked to the original mortgage debt ; for instance, an 
 agreement for a mortgage, or an informal mortgage (h). 
 
 The test as to the application of the doctrine of tacking. As against 
 as against the mortgagor, is whether the further advance *^*^ °^"\'*' 
 
 o o o ' ^ gagiir the 
 
 was made on the security of the land. If so it may be question 
 tacked; if not, as against the mortgagor it cannot (')• the fuller 
 Thus, though under a covenant in his mortgage, a mort- advance 
 gagor may, by virtue of 3 & 4 Will. IV. c. 42, be able to scduity of 
 recover twenty years' interest, yet since by 3 & 4 Will. IV. *^'^ ''"^_'^- 
 c. 27, he is only entitled to six years' arrears against the years' 
 land, he cannot tack more than this against the mortgagor, "iterest 
 
 ' . ° ® *= ' can be 
 
 for the covenant creates no lien upon the land (k). On tacked. 
 the same principle a bond debt, and a fortiori a simple Not bond 
 
 '- '■ . "^ ^ or simple 
 
 contract debt, cannot be tacked as aganist a mortgagor (/). contract 
 
 debts. 
 
 (c) Godfrey v. Wai.wn, 3 Atk. 518. {h) Matthcicsw. Cartv>ri<jht, 2 Atk. 
 
 {d) Roberts v. Willimns, 4 Ha. 347. 
 129. (i) LoA-tj V. Injle, 2 Ph. 413. 
 
 (e) Harvey v. Jchhutt, 1 J. & W. (k) Hunter v. Nockolds, 1 Mac. <S. 
 
 197. G. 640. 
 
 (/) Mo(yre v. Painter, 6 Jur. 903. (I) Coleman v. Winch, 1 P. Wnis. 
 
 [y) Ooote, 807. 777 ; Jones v. Smith, 2 Ves. jr. 37G.
 
 248 lUGHTS OF .MOlCKiAGOR AND MORTGAGEE. 
 
 Scciis as gy^ ^j, against the representatives of a mortgagor the 
 
 mort- case rests on a different principle. Thus in the case of a 
 
 represen- ^^^^^ ^^^^> whether prior or subsequent to the mortgage, 
 tatives. the heir and beneficial devisee of the debtor having been 
 them^'ali ^^^^"^^^ by 3 & 4 Will. & M. c. 14, jointly liable for its pay- 
 debts may ment, in order to avoid circuity and multiplicity of actions 
 the bond debt was allowed to be tacked to the mortgage 
 as against them (m). And on the same principle twenty 
 years' arrears of interest may be tacked as against the heir 
 or devisee of the mortgagor, if secured by a covenant 
 in the mortgage deed binding the heirs {n), though only 
 six years' arrears could be tacked as against the mortgagor 
 himself. 
 
 Again, since 3 & 4 Will. IV. c. 104, which made real 
 estate liable to simple contract debts, such debts may be 
 tacked by any mortgagee of freehold or copyhold against 
 the heir or devisee, in any cases in which there is not a 
 devise for payment of debts (o). And similarly a mort- 
 gagee of a lease may tack a simple contract debt against 
 the executor (^y). But in neither case can a simple 
 contract debt be tacked as against a creditor coming to 
 redeem (q). 
 
 2. Tacking as against mesne incumbrancers. 
 In this branch of the subject perhaps the most important 
 authority that can be cited is the well-known case of 
 
 BilA.CE V. THE DUCHESS OF MARLBOROUGH 
 
 [2 P. Wins. 491], 
 
 Rules ia in which Sir Joseph Jekyll, M.R., laid down the following 
 Duchess of series of rules in exposition of the whole doctrine : — 
 Marl- n\ "jf a third mortgagee buys in the first morto-ao-e, 
 
 borov///i. . , o o > 
 
 1. Third though it be pendente lite, pending a bill brought by the 
 
 (m) Heams v. Bance, 3 Atk. 630 ; (p) Coleman\. Winch, 1 P. Wms. 
 
 Shuttlewwth V. Laycoch, 1 Vera. 77 Q ; In re Haselfoot's £state, 13 ISiq. 
 
 245. 327. 
 
 (h) Elvy V. Nm'wood, 5 De G. & [q) Adams v. Claxton, 6 Ves. 226 ; 
 
 S. 240. Talbot v. Frere, 9 Ch. D. 568. 
 
 (o) Holfe V. Chester, 20 Beav. 610.
 
 TACKING OF MORTGAGES. 249 
 
 second mortgagee to redeem the first, yet the third mort- mortgagee 
 gagee having obtained the first mortgage and got the law first mort-^' 
 on his side and equal equity, lie shall thereby squeeze out p°^ ^^^ 
 the second mortgagee ; and this Lord Chief Justice Hale 
 called a plank gained by the third mortgagee, or a tabida 
 in naufragio, which construction is in favour of a pur- 
 chaser, every mortgagee being such pro tanto." 
 
 This rule is that established by the earlier case of A fortiori 
 Marsh v. Lee (r), and includes the stronger case of a first !!a^*ee"*^'*' 
 and legal mortgagor making a further advance without making 
 notice of a second mortgage. There are certain limita- advance 
 tions of the rule which require attention. Thus there without 
 
 notice may 
 
 can be no tacking unless both the securities are held by tack ; 
 the creditor in the same right. He cannot tack a mort- ^"* ^''^<^^' 
 gage which he holds for his own benefit to one assigned hold both 
 to him as trustee for another person (s). Similarly the f*^'^""*^^^ 
 executor of a first mortgagee who had the legal estate in same right. 
 his own right, was not suffered as against a mesne incum- 
 brancer to tack a mortgage of the equity of redemption 
 which had vested in his testator as executor of another. 
 
 No priority can be gained by the transfer of the legal Convey- 
 estate by a person who holds it on an express trust for the ^^^^^ g^^^^j.^ 
 first incumbrancer. The purchaser, in such a case, himself hy express 
 becomes a trustee (t). Similarly an incumbrancer getting does not 
 in the legal estate from a person who is trustee for all B'^y*' . 
 the incumbrancers, with notice of their rights, gains no 
 priority. The trustee is not to alter the priorities by 
 preferring one of his cestui que trusts and conveying the 
 legal estate to him (^lo). On the same principle it has Nor does 
 been held that no priority is gained by the transfer, with ^ satisfied 
 notice of other incumbrances, of a satisfied mortgage, the mortgage, 
 legal mortgagee becoming on payment of his debt a mere 
 trustee without any pecuniary interest (x) ; but in some 
 
 ()•) 2 Ventr. 337. 563. 
 
 (s) Morret v. Paske, 2 Atk. 52; («) Sharpies v. Adams, 32 Beav. 
 
 Shaw V. Neale, 6 H. L. 581. 213; Maxfidd v. Burton, 17 Eq. 15. 
 
 (t) Allen V. KnvjU, 5 Ha. 272; (x) Carter v. C, 3 K. & J. 617; 
 
 Mmnford v. Stohwasser, 18 Eq. 556, Prosser v. Rice, 28 Beav. 68, 74.
 
 250 EIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 circumstances the Court has refused to interfere to 
 Notice by take awaj the privilege of the legal estate {y). It is 
 mort'f-ao-ee clearly settled that notice given to the first niortgagee by 
 to first the second, w^ill not prevent the third mortgagee from 
 prevent tackiug tliB third mortgage to the first if he purchases 
 
 tacking by U /^\ 
 the third ^M-A 
 
 mortgagee. (2.) The second rule is, "If a judgment creditor, or cre- 
 2. Judg- ditor by statute or recognizance, buys in the first mortgage, 
 creditor he shall not tack or unite the mortgage to his judgment, &c., 
 tack if ^^^ thereby gain a preference ; for such a creditor cannot 
 mortgage be Called a purchaser, nor has he any right to the land ; 
 judgment; ^^ ^^s neither a jus in re nor a, jus ad rem. All that he 
 the first has by the judgment is a lien upon the land, but non 
 beincrTent co7istat whether he will ever make use thereof, &c. 
 on the Besides which the judgment creditor does not lend his 
 
 security of , . , . . i • p i 
 
 the land, money on the immediate view or contemplation ot the 
 land, nor is he deceived or defrauded though his debtor 
 had before made twenty mortgages of his estate ; whereas 
 a mortgagee is defrauded or deceived if the mortgagor 
 before that time mortgaged his land to another." 
 
 The distinction here drawn between the specific lien of 
 a mortgagee and the general lien of a judgment creditor, 
 as regards tacking, seems to be sound in principle, and is 
 well established (a) ; it has not been affected by 1 & 2 
 Vict. c. 110 (6). Since 27 & 28 Vict. c. 112, the land is 
 not affected by a judgment, and no right to tack could be 
 supposed to arise, until the land is delivered in execution 
 by writ of elegit or otherwise ; and when there has been 
 actual delivery, even a prior viortgctgee, though without 
 notice of the elegit, could not tack a subsequent charge to 
 his first mortgage (c). 
 
 The rule would seem to apply equally to prevent a prior 
 judgment creditor from ta^cking a subsequent incumbrance, 
 
 [y) Pllcher v. Rawlins, 7 Ch. 259, 
 
 (b) Wkitworth v. Gaayain, 3 Ha 
 
 274; and seep. 288. 
 
 416. 
 
 {z) Peacock v. Burt, 4 L. J. N. S. 
 
 (c) Champneys v. Burland, 19 
 
 Ch. 33. 
 
 W. E. 148 
 
 («) Exx). Knott, 11 Ves. 617. 

 
 TACKING OF MORTGAGES. ^51 
 
 and to prevent a subsequent judgment creditor from tack- 
 ing a prior incumbrance (c). 
 
 (3.) The third rule is that if the first mortgagee lends 3. Amort- 
 (without notice) a further sum to the mortgagor upon a lack a 
 
 statute or iudgment, he shall retain a'^ainst a mesne ju^lgment 
 
 Mill- • • ^ n -i t" l^i^ 
 
 mortgagee until both his securities are satisfied. mortgage. 
 
 This is the converse of the last rule, and is supported by 
 the converse of the reasoning there employed, for in this 
 case the mortgagee does originally lend his money espe- 
 cially upon the security of the laud, and may be considered 
 to rely thereupon for all his debt (d). If, however, the Unless the 
 mortgage is paid off before the judgment is recovered, h^i^^b^eerT 
 although no reconveyance may have been made, the judg- satisfied. 
 ment cannot be tacked (e). 
 
 It will be observed that in all these cases there is no In these 
 right to tack if at the time of advancing his money the tacldno' 
 mortgagee had notice of an existing incumbrance. It is prevented 
 the same in the case of a third mortgagee purchasing the 
 first legal mortgage, and in the case of a first mortgagee 
 seeking to tack a further advance, even if the first mort- 
 gage was expressly made to secure a sum and further 
 advances (/). Thus a first mortgagee cannot tack a subse- 
 quent debt incurred 'pendente lite (the lis joendens being 
 duly registered), because the suit would affect him with 
 notice of the mesne incumbrance {g). The fact is that if 
 there is notice at the time of the advance the equities are 
 not equal ; and then the possession of the legal estate will 
 not prevail. 
 
 (4.) The last rule in Brace v. The Duchess of Marl- 4. Where 
 borough is: "When a puisne incumbrancer buys in a prior estate'^is 
 mortofacje in order to unite the same to the puisne incum- «"*- , 
 
 , . . . standing 
 
 brance, but it is proved that there was a mortgage prior thepriority 
 to that, the Court clearly holds that the puisne incum- f»iJov/s the 
 
 ' "^ -^ order of 
 
 time, 
 
 ((•) Coote, 820. 26 Beav. 548. 
 (cZ) See also Shepherd v. Titlcy, (/) Slum v. Neale, 20 Beav. 157 ; 
 
 2 Atk. 348, 352 ; Lloyd v. Atwood, 6 H. L. 581. 
 
 3 De G. & J. 614. (g) Morret v. Paske, 2 Atk. 53. 
 (e) Marquis of Brecon v. Seymour,
 
 252 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 brancer where he had not got the legal estate, or where the 
 legal estate was vested in a trustee, could there make 
 no advantage of his mortgage ; but in all cases where the 
 lesfal estate is standing out, the several incumbrancers 
 must be paid according to their priority in point of time." 
 In other words, where, owing to the outstanding of the legal 
 estate, the maxim " where there is equal equity the law 
 must prevail " does not apply, then the maxim " qui 
 iwior est tempore potior est jure " applies, 
 unless one There is, however, a modification of this rule when one 
 incum- q£ ^Y\e incumbrancers, though he has not the legal estate, 
 
 brancei'has . . 
 
 a better lias from the circumstances of the case a better right to 
 
 calHor*it ^^^^ ^°^' ^^ than another ; for instance, if a declaration of 
 
 trust has been made in his favour, or if he has secured 
 
 possession of the title deeds {h). If this is the case, 
 
 equity will place him in the same situation as if he had an 
 
 actual assignment (i). And the result is the same where 
 
 an incumbrancer obtains the legal estate after advancing 
 
 his money in pursuance of a contract for a legal mortgage 
 
 entered into at the time of the advance {¥). 
 
 Bond and We have seen that bond and simple contract debts, not 
 
 simple being specific liens on the land, cannot be tacked as 
 
 contract o a • t a r • • ^ 
 
 debts not against the mortgagor himself. A fortiori, whether prior 
 a^/ainst a ^^' subsequent to the mortgage, they cannot be tacked as 
 mesne against any intervening incumbrancer, whether a mortgagee 
 brancer. 01' judgment or bond creditor (I). 
 
 37 & 38 The whole doctrine of tacking was displaced for a short 
 
 Vict. c. 78. ^-^^^g i^y ^l^g Vendor and Purchaser Act, 1874 (m), which 
 enacted that from the 7th of August, 1874, no priority 
 should be given or allowed to any interest in land by reason 
 of such interest being protected by or tacked to the legal 
 estate in such land. This enactment was, however, only 
 
 {/() Wyndlmmv. Richards(»i,2Ch. [h) Cooker. WiZtow, 29Beav. 100. 
 
 Ca. 213. {I) Windham v. Jenniwjs, 2 Ch. 
 
 (i) Pomfret v. Windsor, 2 Ves. sr. Rep. 247 ; Loivthian v. Hasel, 3 Bro. 
 
 472, 486; Wilmot v. Pike, 5 Ha. 14, C. C. 162. 
 
 22. («i) 37 & 38 Vict. c. 78.
 
 CONSOLIDATION OF MORTGAGES. 253 
 
 in operation until the 31st of December, 1875, from which ^^ ^^ ^^ 
 
 . Vict c 87 
 
 time it was repealed by the Land Transfer Act, 1875 (n). 
 
 V. Consolidation of Mortgages. 
 
 1. The doctrine of the consolidation of mortgages must be Consoiida- 
 carefully distinguished from that of tacking. The principle tin^'ished 
 of tacking applies as between successive incumbrances on from 
 one estate. The term consolidation of mortgages is applied 
 
 to the general rule that where a mortgagor has mortgaged 
 more than one estate to his mortgagee, he cannot claim to 
 redeem one mortgage without redeeming all. This rule, 
 which apj)lies equally to redemption and foreclosure suits, 
 to legal and equitable mortgages, and to real and personal 
 property, may be thus concretely illustrated : A. mortgages Illustra- 
 Blackacre to B. for £1C00, Blackacre being worth say 
 £1500. Then A. further mortgages Whiteacre to B. for 
 ii500, and Whiteacre is found to be worth only £100. A. 
 cannot then claim to redeem Blackacre, where the security 
 is ample, alone. If he seeks to do so, he must also be pre- 
 pared to redeem Whiteacre, which is an insufficient security 
 for the money originally charged upon it (o). 
 
 2. And this doctrine of consolidation has been carried far Effect of 
 beyond the simple case of a mortgage of two estates by one 
 person to another. Thus if A. sells Blackacre, or mortgages 
 
 the equity of redemption of it to C, whether with or with- 
 out notice of the existence of the other mortgage, the pur- 
 chaser is just as much as A. himself bound by B.'s right to 
 consolidate (p). Even where the mortgage of Whiteacre 
 was effected after the sale or second mortgage to C, B. 
 was held entitled to consolidate (q). That this may work 
 great hardship on a second mortgagee or purchaser is very 
 
 (n) 38 & 39 Vict. c. 87. Tltki/ v. Baries, 2 Y. & C. Ch. 
 
 (o) Selhy v. Pomfret, 1 J. & H. 399, n. 
 336 ; 3 De G. F. & J. 595 ; Phillips (q) Vint v. Padt/et, 1 Giff. 446 ; 
 
 V. Gutterklrje, 4 De G. & J. 531. 2 De G. & J. 611. 
 
 (p) Beevor v. Lucl; 4 Eq. 537 ;
 
 254 RIGHTS OF MORTGAGOR AND MORTGAGEE, 
 
 evident. Thus, referring again to the figures above employed 
 in iUustration, C, not having any notice of the improvident 
 mortgage of Whiteacre, may imagine that he is perfectly 
 secure in giving £400 for, or lending it on a second mort- 
 gage of Black acre. He would clearly be so if that estate 
 could be redeemed alone. But he finds on seeking to do 
 this, that B. can consolidate with the mortgage of Blackacre 
 the mortgage of Whiteacre, which is worth £400 less than 
 what was lent thereupon ; and the result is that C.'s pur- 
 chase or security is worth him nothing at all. 
 First mort- Again, the principle applies although the first mortgages 
 made to ^^ ^^^® Several estates were originally made to different mort- 
 diflEerent gagecs, but have by transfer come into the hands of one 
 mortgagee ; for instance, if A. mortgages Blackacre to B., 
 and Whiteacre to C, and C. afterwards assigns his mort- 
 gage to B (r), or, vice versa, B. assigns his mortgage to C. 
 (s). But it has been held that consolidation cannot be 
 insisted on if the equity of redemption of the one estate 
 has been sold or mortgaged previous to the transfer which 
 brings the two mortgages to the same hand (t) : a fortiori, 
 if such sale or mortgage takes place previous to the creation 
 of the mortgage of the other estate (u). In this case the 
 knowledge of the possibility of the mortgages coalescing 
 cannot be imputed to the second mortgagee or purchaser of 
 the first estate. The case is yet stronger if at the time of 
 the assignment the assignee had notice of the puisne 
 mortgage (cc). These cases in effect overrule the decision 
 in Tassel v. Smith {]/), and to a certain extent that in 
 Beevor v. Luch (z), cases which for a long time bore very 
 hardly upon purchasers and mortgagees of equities of 
 redemption. 
 ConsoHda- 3. A mortgagee may on the bankruptcy of the mortgagor, 
 bank" if bis trustee does not at once redeem, take a transfer of a 
 
 mptcy. 
 
 (r) TitrnfaZe V. r., 23 Beav. 341. Exch. 597; Mills v. Jennings, 13 
 
 (s) Titley V. Davies, 2 Y. & C. Ch. Ch. D. 639, 646. 
 399, n. ix) Baker v. Gray, 1 Ch. D. 491. 
 
 (0 Willie V. Lugg, 2 Ed. 78. {y) 2 De G. & J. 713. 
 
 {v) White V. Hillacre, 3 Y. & C. [z) 4 Eq. .^)37.
 
 CONSOLIDATION OF MORTGAGES. 255 
 
 morto^aofe on another of his estates and consoHdatc it with 
 a debt due on his own mortgage, and may thus hold the 
 two estates as a security for both debts (a). He could not, 
 however, take an original mortgage after notice of in- 
 solvency, as that would amount to a fraudulent prefer- 
 ence (b). 
 
 4. There can be no consolidation where the transactions ^'f^^f i" 
 
 wbuh con- 
 
 m question are not between the same parties or persons solidation 
 claiming through them (c) ; so there can be no consolida- ™^^ "j*^^ 
 tion where one mortgage is by a firm, and the other by one 
 of the partners thereof (c?). This case also decides that 
 there can be no consolidation where there has been no 
 default in respect of one of the mortgages, for until default 
 the estate is not at law forfeited. 
 
 5. The recent Conveyancing and Law of Property Act 44 & 45 
 in effect abrogates the principle of Consolidation as far as g. 17". " 
 concerns mortgages executed after Dec. 31st, 1881. It 
 enacts that a mortgagor seeking to redeem any one mort- 
 gage shall be entitled to do so without paying any money 
 
 due under any separate mortgage made by him, or by auy 
 person through whom he claims, on property other than 
 that comprised in the mortgage which he seeks to redeem, 
 provided that no contrary intention is expressed in the 
 mortgage deeds or one of them. But the Act only applies 
 where the mortgages are or one of them is made after the 
 above-mentioned date (e). 
 
 (a) Selby v. Pomfret, 1 J. & H. 329 ; 10 Jur. 328. 
 
 336; 3 De G. F. & J. 595. (d) Cummins v. Fletcher, 14 Ch. 
 
 (b) Exp. HotchUn, 20 Eq. 746. D. 699. 
 
 (c) Jones V. Smith, 2 Ves. jr. 376 ; (e) 44 & 45 Vict. c. 41, s. 17. 
 Higyins v. Frankis, 15 L. J. Ch.
 
 256 EQUITABLE MORTGAGES. 
 
 Section III. — Equitable Mortgages. 
 
 I. By Agreevient. 
 II. By Deposit of Title Deeds. 
 
 Russel V. Russel. 
 III. Remedies. 
 
 Classifica- There are two species of equitable mortgages, which, 
 *^""' though in many respects similar, are sufficiently distinct 
 
 to require separate consideration. 
 
 The first class comprises those transactions viewed and 
 
 treated in equity as mortgages, in which a person by 
 
 agreement or mandate creates a charge uj)on his property. 
 
 The second and more peculiar class comprises equitable 
 
 mortgages arising from the deposit of title deeds. 
 
 I. Equitable Mortgages by Agreement or Mandate. 
 Informal 1. Any agreement in writing, however informal, by which 
 agree- ^^^ property, real or personal, is to be a security for a 
 mortgages, sum of money, is a charge, and amounts to an equitable 
 mortgage. Thus an agreement that a creditor shall hold 
 land at a fair rent to be retained in satisfaction of the 
 debt, is in the nature of a mortgage, and will be sup- 
 ported as such (e). 
 
 On the principle that what is agreed to be done is 
 considered in equity as done, an express written agree- 
 ment to effect a mortgage is treated as a mortgage (/). 
 So a written instrument promising to pay a sum of 
 money with interest " out of the estate of the deceased 
 W. H.," and signed by all the persons interested in his 
 estate has been held (the personalty being exhausted) 
 
 (e) Morony v. 0' Dea, 1 Ba. & Be. (/) Hankey v. Vernon, 2 Cox, 12, 
 
 109 ; Coote, 305. 14,
 
 BY AGREEMENT. '2') t 
 
 to amount to an equitable mortgage of the real estate (g). 
 And an agreement by a married woman to charge her 
 expectancy under the will, or as one of the next of kin 
 of a living person, was on similar grounds enforced after 
 that person's death (/i). A covenant also that, if payment 
 of a certain debt be not made, the creditor may by entry, 
 foreclosure, sale, or mortgage, levy the amount from the 
 lands of the debtor, is an equitable mortgage (i). 
 
 2. Another species of equitable mortgage is seen in Mortgages 
 mortgages of the equity of redemption of an estate which e(iuity of 
 has been already legally mortgaged. But it is not redemp- 
 necessary to enter into a separate discussion of such 
 equitable mortgages, inasmuch as any particulars in which 
 they differ from legal mortgages are fully explained under 
 the heads of Notice and Tacking (k). 
 
 II. Equitable Mortgages by Dei:>osit of Title Deeds. 
 
 It is a well-known provision of the Statute of Frauds {I) Statute of 
 that no action shall be brought upon any contract or sale ^^"' "' 
 of lands, tenements, or hereditaments, or any interest in 
 or concerning them, unless the agi'eement upon which 
 such action shall be brought, or some memorandum or 
 note thereof, be in writing and signed by the party to 
 be charged therewith, or his duly authorised agent (m). 
 
 In the case of 
 
 RUSSEIi V. RUSSEL Rassd v. 
 
 [1 Bro. C. C. 269 ; 1 W. & T. L. C. 726] ^'"•'''■'''• 
 
 this was relied on as an answer to an action which sought 
 to establish a charge on the mere fact of the deposit of 
 a deed. But the objection did not avail ; and it has long 
 
 (cj) Suart V. Toulmine, 2 Pow. (i) Eyre v. McDowell, 9 H. L. 
 
 Mtg. 1049 a, ed. 6. 620. 
 
 [h) Flower v. Buller, 15 Ch. D. (Ic) See pp. 245 et scq., 278 ct scq. 
 
 665. But see also Pike v. Fitzgibbon, (I) 29 Car. If. e. 3. 
 
 14 Ch. D.'837 ; 17 Ch. D. 454. (m) s. 4. 
 
 S
 
 2o8 
 
 EQUITABLE MORTGAGES. 
 
 Deposit 
 sufficient 
 evidence of 
 an agree- 
 ment. 
 
 What 
 
 deposits 
 
 sufficient. 
 
 Deposit of 
 part of 
 deeds. 
 
 Of receipt 
 
 for pur- 
 
 been established that if the title deeds of an estate are, 
 without even verbal communication, deposited by a 
 debtor in the hands of his creditor, such deposit is of 
 itself evidence of an agreement executed for a mortgage 
 of the estate; and the creditor may avail himself of it 
 as of an agreement in writing for that purpose, and may 
 bring an action for the completion of his security by a 
 legal conveyance (%). These bold decisions have given 
 rise to transactions which now form a conspicuous feature 
 in equitable jurisprudence, and which require attentive 
 consideration. 
 
 (1.) What constitutes such a mortgage. 
 
 (i.) It has already been stated that a deposit of title 
 deeds, unaccompanied by any verbal agreement, is evi- 
 dence of an agreement for a mortgage which may be 
 enforced ; and this proposition may be abundantly illus- 
 trated. Thus a deposit of a copy of Court rolls (o), of an 
 a,greement for a lease (/:»), of a policy of insurance {q), 
 of a registered mortgage of a ship (?■), or of a certificate of 
 shares in a public company (.s), may constitute an equitable 
 mortgage. 
 
 (ii.) An equitable mortgage may be created by a 
 deposit of part of the title deeds only, and it is not 
 necessary that the deeds deposited should show a good 
 title in the depositor {t). But a deposit of deeds relat- 
 ing to part of an estate, with a representation that they 
 relate to the whole, will only effect a mortgage of the 
 part actually comprised in the deeds {%i). If the deeds 
 are deposited, some with one creditor, some with another, 
 each may have a valid charge (x). Moreover, if there 
 are no title deeds or conveyances in the depositor's 
 
 [n) Exp. Wright, 19 Ves. 258. 
 
 (o) Exp. Warner, 1 Rose, 286. 
 
 (%>) Unity ti-c. Co. v. King, 25 
 Beav. 72. 
 
 (5) Ferris v. MuUins, 2 Sm. & G. 
 878. 
 
 (r) Lnccn v. Liffen, 4 Giff. 75. 
 
 (s) Exp. Mos.% 3 De G. & Sm. 599. 
 
 (t) Exp. Wetherall, 11 Ves. 398 ; 
 Roberts v. Croft, 24 Beav. 223 ; 
 2 DeG. & J. 1. 
 
 (m) Jones V. Williams, 24 Beav. 
 47. 
 
 (x) Roberts v. Croft, sup.
 
 I 
 
 DEPOSIT OF TITLH: DEEDS. SoO 
 
 possession, an equitable mortoaoe may be created by the ct»ase- 
 
 . p , • n 1 • • 1 money. 
 
 deposit of the receipt tor purchase-money, contaming the 
 terms of the agreement for sale Q/). 
 
 (iii.) Where land had to be registered under the Land Registered 
 Registry Act (z), an equitable mortgage might be created 
 by a deposit of the land certificate (a), but not by that 
 of the title deeds (b). The same provision is continued 
 under the Land Transfer Act (c). 
 
 (iv.) A deposit of the deeds with a third person for Deposit 
 the benefit of the creditor will be sufficient to create a ^' 
 
 person. 
 
 security ; and the possession of the agent of the debtor 
 may suffice, if there is a memorandum of deposit showing 
 an intention to make him a trustee (d). But a deposit 
 with the wife of the debtor, to be kept by her for the 
 creditor, was held insufficient (e) ; and where the deeds 
 remain in the hands of the debtor, accompanied by a 
 memorandum of deposit, there is no valid mortgage (/) 
 unless indeed the debtor in fact holds them as the servant 
 of the creditor (g). 
 
 (v.) But though a dej)osit of title deeds or their equiva- Depositor 
 lent is evidence of an agreement for a mortgage which ^^^^ ^j^^^ 
 may suffice to establish a claim for relief in equity, it does was no 
 
 , „ . mi 1 • 1 agreement, 
 
 not itseii constitute an agreement, i he depositor may show and that 
 that the deposit was not made with the view and intent *^^® P"""' 
 
 ■^ , . . pose was 
 
 to effect a security, but with some other intent or for some not to 
 other purpose. The mere possession of the title deeds is, gg^f^^ri^y 
 therefore, not enough to create an equitable security (h). 
 For instance, deeds may be deposited merely for the pur- 
 pose of safe custody ; or on some definite condition (i) ; or 
 there may be attendant circumstances showing that there 
 Avas no intention to create a mortgage, as, for instance, 
 where deeds have been left with a banker after he has 
 
 (y) Goodwin v. Waghorn, 4 L. J. J. 614, 619. 
 
 N. S. Ch. 172. (e) Exp. Coming, 9 Ves. 115. 
 
 (z) 25 & 26 Vict. c. 53. (/) Aclams v. Claxton, 6 Ves, 
 
 (a) s. 73. 226, 230. 
 
 [h] s. 63. [g] Ferris v. Mullins, sup. 
 
 (r) 38 & 39 Vict. c. 87, s. 81. (h) Chapman v. C, 13 Beav. 308, 
 
 (d) Lloyd V. Attwood, 3 De G. & (/) Burton v. Gray, 8 Ch. 932. 
 
 S2
 
 2G() 
 
 EQUITAISLE MORTGAGES. 
 
 Deposit 
 for purpose 
 of creating 
 a legal 
 mortirasfe. 
 
 Written 
 memoran- 
 dum suffi- 
 cient with- 
 out de25osit. 
 
 What pro- 
 
 refused to advance money on them (k) ; or the deposit may 
 be accompanied by a memorandum showing that there 
 was not an intention to create a security (l). In none of 
 these cases will an equitable mortgage be created ; but 
 where the possession of the deeds cannot be accounted 
 for save on the supposition that a mortgage was intended, 
 it amounts to a presumption of such intention so strong 
 that it may be acted upon (m). 
 
 (vi.) Where deeds are deposited for the purpose of pre- 
 paring a legal mortgage, a presumption arises of an inten- 
 tion to create an equitable mortgage. At one time it was 
 sought to distinguish between the case where the inten- 
 tion was to secure an antecedent debt, and where it was 
 with a view to secure only a future advance, it having been 
 held that in the latter case no equitable mortgage arose 
 from the deposit (n). But it seems that this distinction 
 cannot be sustained, and that now in all cases an equitable 
 mortgage will result from the deposit (o). This will clearly 
 be the case if an agreement to give a mortgage accom- 
 panies the deposit ('p). 
 
 (vii.) A valid equitable mortgage may, as we have seen, 
 be created by a written agreement apart from any deposit; 
 and a written memorandum of deposit is a sufficient agree- 
 ment {q), especially if the deeds be already in the posses- 
 sion of a third party (?•). But in no case can a mere oral 
 agreement without an actual deposit create an equitable 
 security (s). 
 
 (2.) The effects of an equitable mortgage by deposit. 
 
 i. As to the property affected. 
 
 Prima facie, the deposit of deeds by a debtor constitutes 
 
 [k) Lucas V. Borricn, 7 Taunt. 
 278. 
 
 (I) Shaw V. Foster, 5 L. R. H. L. 
 340 ; Spoile v. Whayman, 20 Beav. 
 607. 
 
 (m) Featherstone v. Fenwich, Har- 
 ford V. Carpenter, 1 Bro. C. C. 270, n ; 
 Dixon V. Mucldeston, 8 Ch. 155. 
 
 (n) Norris v. W{lk-inso7i, 12 Ves. 
 192. 
 
 (o) Edffe V. Worthhi/jton, 1 Cox, 
 211 ; Exp. Bruce, 1 Eose, 374. 
 
 (p) HocMey v. Bantock, 1 Russ. 
 141 ; Keys v. WilUams, 3 Y. & C. 
 Ex. 55. 
 
 (q) Exp. Orrctt, 3 Mont. & A. 
 153. 
 
 (r) Daw V. Terrcl, 33 Beav. 218. 
 
 (s) Exp. Coomhe, 4 Madd. 349.
 
 DEPOSIT OF TITLE DEEDS. 2G1 
 
 a mortg-acye of all the property comprised in them (t). But P^^y ^^ 
 
 ^, '^ ? 1 1- • 1 1 • T deemed to 
 
 the security may be Imiited by a written memorandum to be mort- 
 that effect (u). If, on the contrary, the memorandum re- ^■'^sed. 
 fers to deeds which are not deposited, it does not effect a 
 mortgage of the property comprised in them (x). Thus Memoran- 
 the memorandum may limit but may not extend the effect liniTt the" 
 of the deposit, unless, of course, the memorandum is in <^ff*^ct of 
 such a form as in itself to constitute an equitable mort- 
 gage. 
 
 A. deposit of title deeds will comprehend any interest After ac- 
 which the depositor may afterwards acquire in the pro- perty! ^^'' 
 perty (y), and will include not only fixtures existing at the Fixtures, 
 time, but also those subsequently erected thereon, whether 
 the fixtures are mentioned or not (z). And the result is 
 the same whether the deposit is made by the owner in fee 
 who is also owner of the fixtures, or by a lessee who is 
 owner of the fixtures, although as between landlord and 
 tenant they are removable (a). On the bankruptcy of the i" bank- 
 depositor of a lease, the fixtures will not be considered as ™^' ^^' 
 being in his order and disposition, but will belong to the 
 mortgagee (b) ; but a doubtful distinction has been drawn 
 in the case of the deposit of an assignment of a lease, no 
 mention being made of fixtures (c). The same case also 
 intimated that such a. mortgage, in order to pass the fix- 
 tures, would require registration under the Bills of Sale 
 Act, 1854 (d), but see Meux v, Jacobs {e). Registration 
 will, under the Act of 1878 (/), be clearly necessary {g). 
 
 A deposit of title deeds can only affect the interest of Interest uf 
 the depositor. Thus if the deposit be by a trustee, and ^^^p*"**^^" 
 there is no consent or acquiescence of the cestui que trust, affected. 
 
 (t) Ashton V. Dalton, 2 Coll. 566. 12-3 ; Meux v. Jacobs, 7 L. R. H. L. 
 
 (m) Exp. Glyn, 1 M. D. & De G. 481. 
 
 29. [h) Exp. Bardau, 5 De G. M. & 
 
 (x) Exp. Powell, 6 Jur. 490. G. 403. 
 
 (y) Pryce v. Bury, 16 Eq. 153. (c) In re Trctlwwan, 5 Ch. D. 559. 
 
 (2) Exp. Price, 2 M. D. & De G. (d) 17 & 18 Vict. c. 36. 
 
 518 ; Exp. Astbury, 4 Ch. t 30. (e) Sup. 
 
 (a) Exp. Loyd, 3 D. & C. 765 ; (/) 41 & 42 Vict. c. 31. 
 
 Longbottom v. Berry, 5 L. R. Q. B. (ij) ss. 4, 5 ; sup. p. 233.
 
 2G2 
 
 EQUITABLE MOirfGAGES. 
 
 Prima 
 
 deposit 
 secured. 
 Circum- 
 stances or 
 evidence 
 may ex- 
 tend this. 
 
 the security extends only to any beneficial interest whicli 
 the trustee may have Qi) ; and a deposit by a tenant for 
 life cannot aifect the interest of remainder-men (i). 
 ii. What debts it may secure. 
 
 It is a matter of evidence what debts are to be deemed 
 debtsTd^ to be comprised in the security of an equitable mortgage, 
 vanced at Prima fade only the sum advanced at the time of the 
 deposit is considered to be secured thereby (k) ; but the 
 circumstances of the case may suffice to show an inten- 
 tion to secure antecedent advances, and if so it will be 
 carried into effect {I) ; and either written or parol evidence 
 of intention may suffice to extend the security to subse- 
 quent advances (m) ; and generally a verbal agi'eement to 
 make a subsequent advance, on a deposit of deeds already 
 made for another purpose, is sufficient to constitute an 
 equitable mortgage as to the subsequent advance (7?.). 
 
 A debt secured by an equitable mortgage, although 
 originating in a simple contract, bears interest from the 
 date of the deposit, even without an express agreement to 
 that effect (0). 
 
 iii. Against whom the security prevails. 
 A deposit of title deeds creates a security valid as 
 against the against the Crown, if made before the depositor became a 
 Crown. Crown debtor by record or specialty {■p). 
 
 The security is also good against the debtor's trustee in 
 bankruptcy, unless being made so near the bankruptcy as 
 to amount to a fraudulent preference {q). 
 
 It also prevails against the interest of a subsequent 
 judgment creditor, although he may have acquired legal 
 seisin under an elegit and without notice (r). 
 
 An equitable mortgagee being a purchaser for value, his 
 
 Interest. 
 
 Security 
 I'alid 
 
 Trustee in 
 bank- 
 ruptcy. 
 
 Judgment 
 creditor. 
 
 Prior 
 volunteers. 
 
 (h) Manningford v. Toleman, 1 
 Coll. 670 ; Exj). Smith, 2 M. D. & 
 De G. 587. 
 
 (?) Turner v. Letts, 20 Beav. 185. 
 
 (k) Exp. Martin, 4 D. & C. 457 ; 
 2 M. & A. 243. 
 
 (l) Exp. Farley, 1 M. D. & De G. 
 683, 689. 
 
 (m) Exp. Laiigston, 17 Ves. 230 ; 
 
 Shepherd v. Titlei/, 2 Atk. 348. 
 
 (n) Exp. Kensington, 2 V. & B. 
 79 ; Exp. Whit bread, 19 Ves. 209. 
 
 (o) Re Kerr's Policy, 8 Eq. 331. 
 
 (p) Casberd v. Ward, 6 Pri. 411. 
 
 (q) Exp. Ainstvorth, 3 M. & A. 
 457. 
 
 ()•) Whitvorth v. Gavgain, 3 Ha. 
 416, 1 Ph. 728.
 
 DEPOSIT OF TITLE DEEDS. 2(Jo 
 
 charge will, by 27 Eliz. c. 4, be effectual against a prior 
 voluntary settlement (s). 
 
 But he is liable to all prior equities affecting the de- Subject to 
 positor ; for instance, as we have seen, a deposit of title eq!lities 
 deeds given in breach of trust, though without notice, does 
 not affect the claim of the beneficiaries ; and where a 
 mortgage was obtained without consideration, and then 
 transferred with notice to a person who deposited it to 
 secure a debt, it was held that the depositee could not be 
 in a better situation than the depositor, and his security 
 was therefore useless (t). 
 
 iv. Generally, 
 
 The benefit of an equitable mortgage by deposit may be Benefit 
 subsequently extended to persons who were not originally "'^^■^g. '^ 
 depositees. If a deposit of deeds is made to a firm, the quently 
 general supposition is that it is not intended to enure for 
 the benefit of future members of that firm ; but if an 
 intention that it should so operate is expressed on the 
 memorandum of deposit, or is proved by parol evidence 
 or is evidenced by continued dealings with the new firm, 
 the new firm may gain the benefit of the security (it). 
 The special features of the liens of bankers, &c., are 
 stated elsewhere (x). 
 
 The rules as to priority, as between equitable mort- 
 gagees and others, are fully discussed under the headings 
 of notice, and tacking of mortgages (i/). 
 
 It was formerly supposed that a cestui que trust or Equitaiile 
 depository of a lease was liable for the rent and covenants ^lea^elfot 
 in a suit by the lessor ; but the contrary is now clearly I'^ble to 
 established ; and the landlord cannot compel him to take 
 or the mortgagor to execute an assignment so as to bring 
 him within the liability of the covenants, even if he has 
 been in possession and paid rent (z). 
 
 (s) Ede V. Knoides, 2 Y. & C. Ch. (x) p. 266. 
 
 172. {!/) See pp. 245 ct seq., 278 et seq. 
 
 (t) Parker v. Clarke, 30 Beav. 5i. (z) Moores v. Choat, 8 Sim. 508 ; 
 
 (u) Exp. Kensington, 2 V. & ['>. 79, Moore v. Greg, 2 De G. & Sm. 304 ; 
 
 8.3; Exp. (Jakes, 2 M. D. & De G. 2-34. 2 Ph. 717.
 
 2G4 
 
 EQUITABLE MORTGAGES. 
 
 Fore- 
 closui'e the 
 ])roper 
 remedy. 
 
 The 
 
 remedy is 
 sale ia case 
 of a charge 
 or pledge 
 of chattels. 
 Receiver. 
 
 Under 
 Bank- 
 ruptcy 
 Act. 
 
 III. Remedies of an EquitaNe Mortgagee. 
 
 (1.) It has been much discussed whether the proper 
 remedy of an equitable mortgagee is foreclosure (after the 
 analogy of a legal mortgage) or sale (after the analogy of 
 a charge). It is now settled that in the case of a mortgage 
 of lands the proper remedy is foreclosure {a), whether the 
 mortgage arises from an agreement for a legal mortgage (h), 
 or from a deposit of title deeds with or without a written 
 memorandum (f ), or is a mortgage of an equity of redemp- 
 tion {d). If there is a deposit of title deeds, accompanied 
 by a written agreement for a mortgage, the mortgagee is 
 entitled to either sale or foreclosure (e). 
 
 Where there is a mere charge or lien, the remedy is sale, 
 and not foreclosure (/) ; sale is also the proper remedy in 
 the case of a pledge of personal chattels {g). 
 
 An equitable mortgagee is entitled to a receiver, and one 
 may be appointed on motion before defence, and even 
 before appearance in cases where a risk of loss is shown {h). 
 
 (2.) The remedies of mortgagees (including equitable 
 mortgagees) in bankruptcy, and also in the administration 
 of insolvent estates, and in the wanding-up of companies, 
 are now regulated by s. 40 of the Bankruptcy Act, 1869 (i). 
 The general principle is that the mortgagee may either 
 give up his security and prove for his whole debt, or retain 
 his security and prove for whatever deficiency there may 
 be. The jurisdiction of Chancery is, however, not taken 
 away by the Bankruptcy Act, so that the mortgagee may 
 still proceed in Chancery against the trustee in bank- 
 ruptcy for the realisation of his security {!{). 
 
 (a) Pryce v. Bury, 2 Di-ew 41 ; 18 
 Jur. 967 ; James v. /., 16 Eq. 153. 
 (h) Frail v. Ellis, 16 Beav. 350. 
 
 (c) Carter v. ^yake, 4 Ch. D. 605, 
 606, per M. R. ; Backhouse v. Charl- 
 ton. 8 Ch. D. 444. 
 
 (d) Richards v. Cooper, 5 Beav. 
 304. 
 
 (e) Yorkd:c. Co. v. Artkii, 11 Ch. 
 D. 205. 
 
 (/) Tennant v. Trenchard, 4 Ch. 
 537. 
 
 (g) Carter v. WaJce, sup. 
 
 (h) Aberdeen v. Chitty, 3 Y. & C. 
 Ex. 379 ; Meaden v. Sealey, 6 Ha. 
 620. 
 
 (i) 32 & 33 Vict. c. 71 ; Jud. Act, 
 1875, 38 & 39 Vict. c. 77, s. 10. 
 
 (k) White V. Sivi7nmis, 6 Ch. 555.
 
 GENERALLY. 265 
 
 Section IV. — Liens. 
 
 Oenerally. 
 I. Liens at Laiv. 
 II. Equitable Liens. 
 
 1. Charges. 
 
 2. Vendors lAcn. 
 Mackreth v. Symmons. 
 
 3. Vendee's Lien. 
 
 Analogous in many respects to mortgages are those Definition, 
 charges of various kinds which are designated by the 
 general term " liens." A lien is not, however, like a mort- 
 gage, a jus in re, or a jus ad rem, but is simply a right 
 to possess and retain the property subject thereto, until 
 some charge attaching to it is paid or discharged (I). 
 
 Liens are either legal or equitable ; that is to say, some Liens legal 
 liens have always been recognised by the common law ; abit^"^*' 
 others, apart from recent legislation, could be enforced 
 only in Courts of Equity. 
 
 I. Of liens recognised at law some are specific, others Specific 
 general. It will not be necessary here to do more than ^^®"^' 
 briefly indicate some examples of such liens. Familiar 
 illustrations of specific liens are, the right which an artisan Artisan. 
 has to retain an article delivered to him to work on until 
 he is paid for the labour expended thereon {'tn), the lien of 
 an accountant upon books entrusted to him for examination Accoimt- 
 and arrangement {n), the lien of a ship-owner who has paid ^° ' 
 a sum for salvage, ujDon the goods on board for the amount owner. 
 
 {I) Story, 506. (n) Exp. Southall, 17 L. J. Bk. 
 
 [m) Scarf e v. Morgan, 4 M. & W. 21. 
 270.
 
 2(30 
 
 LIENS. 
 
 Partner. 
 
 General 
 liens, 
 
 when 
 maintain- 
 able. 
 
 Liens by 
 usage : 
 Bankers. 
 
 Brokers. 
 
 Inn- 
 
 kee[iers. 
 
 Factors. 
 
 Wljarfin- 
 ger-s. 
 
 of contribution to which the owner of the goods is liable (o), 
 and the lien of a partner on the partnership property for 
 what may be found due to him on taking the partnership 
 account (27). 
 
 A general lien differs from one that is specific in that it 
 entitles the creditor to retain the property in question as a 
 security, not merely for a particular charge, but for the 
 general balance due to him. It has been held that a general 
 lien can only be maintained in particular trades where its 
 existence has been judicially declared (q). Lord Mansfield 
 stated that a general lien would be upheld in four cases : 
 (1) where it is an express contract; (2) where it is implied 
 from the usage of trade ; (3) where it is implied from the 
 manner of dealing between the parties on the particular 
 case ; (4) where the party has acted as a factor (r). 
 
 An important instance of a lien by usage is the lien of 
 a banker over all the bills, papers, and securities of a 
 customer in his hands, which right subsists unless there be 
 an express contract or circumstances showing an implied 
 contract inconsistent with the lien (s). An instance of a 
 circumstance showing such an implied contract is the case 
 of a lease being accidentally left with the banker after he 
 had refused to lend money upon it (t). 
 
 A broker has a similar lien(u), and an innkeeper has a 
 general lien on articles belonging to his guests, which come 
 into his possession as innkeeper (x). 
 
 A factor has a general lien on goods consigned to him 
 for sale, and on the pvu'chase-money thereof (y), as well as 
 a specific lien on goods bought for the purchase-money and 
 freight paid in respect thereof (s). A wharfinger has also 
 
 (o) Briqgs v. Merchant dr. Assoc, 
 18 L. J. Q. B. 178. 
 
 (p) Skip V. Harirood, 2 Swanst. 
 586. 
 
 iq) Bock V. Gopisson, 6 Jur. N. S. 
 547 ; 7 ih. 8L 
 
 (r) Green v. Fdrmer, 4 Burr. 2221. 
 
 (s) Dalies v. Bowshcr, 5 T. K. 488 ; 
 London Chartered. Bank v. White, 
 4 App. C. 41:J. 
 
 (t) Lucas V. Doi'rien, 7 Taunt. 278. 
 
 (m) Hewison v. Guthrie, 2 Bing. 
 N. C. 755. 
 
 (.r) Thrcfall v. Borvick, 7 L. R. 
 Q. B. 711; 10 ib. 210. 
 
 (i/) Godin V. London Ass. Co., 
 1 Bur. 490 ; Robson v. Kemp, 4 Esp. 
 236. 
 
 (:) E.rp. Einrrij, 2 Ves. sr. 674 : 
 Exp Good, 3 M. & A. 246.
 
 LIENS AT LAW. 267 
 
 the same general lien as a factor for the balance of his 
 wharfage dues and freight (a). 
 
 The lien of a solicitor is of such a nature as to require Solicitors' 
 especial consideration. A solicitor has a general lien on f^^^^ 
 the papers of his client in his hands for his costs, charges, 
 and expenses {&) ; and in consequence thereof every client 
 is entitled to have his costs taxed, though there may be no 
 item in the account relating to an action at law or in 
 equity (c). This lien is merely a right to retain, and cannot 
 be actively enforced (d). It appears not to be waived by 
 an order for payment, or by an attachment for non-payment 
 of costs, nor by any proceeding against the person of the 
 debtor (e). It is not confined to deeds and papers, but What it 
 extends to other articles delivered to the solicitor for the ^^^^ '^^' 
 purposes of the action ; for instance, to books, shares in 
 a company, &;c. (/). 
 
 A solicitor has also a specific lien on the fund recovered Specific 
 by him in an action for the costs of the action (g), and funds 
 similarly, also, upon money of the client in his hands to '■^''"^^^■'^<^ ' 
 abide the result of the action (h). The lien is limited to the bow 
 interest in the fund of the party who retained the solicitor(i), ''' 
 
 and is subject to any equity between the parties, so that if 
 there is a set-off of costs of suit payable by the defendant 
 against the sum found due from the plaintiff, the lien of 
 the defendant's solicitor only extends to the amount of the 
 ultimate balance due from the plaintiff (k). The lien upon how 
 a judgment is merely a claim to the equitable interference 
 of the Court to have the judgment held as a security for 
 the costs. It is not equivalent to an equitable assignment 
 or charge on the judgment, nor does it constitute the client 
 a trustee for the solicitor so as to prevent a set-off by a 
 
 (a) Naylor v. Mangles, 1 Es25. 109 ; (/) Frlsvell v. King, 15 Sim. 191 ; 
 25 & 26 Vict. c. 63, s. 76. General Share Trust Co. v. Chapman, 
 
 (b) Stevenson v. BlaMock, 1 M. & 1 C. P. D. 771. 
 
 S. 535. (,'/) Bozon v. BoUond, sup. 
 
 (c) Re Barker, 6 Sim. 476. (h) Ifaiison v. Reece, 3 Jur. N. S. 
 
 (d) Bozon V. BoUond, 4 My. & C. 1204. 
 
 357. (i) ffedl V. Laver, 1 Ha. 571. 
 
 (e) Lloyd v. Mason, 4 Ha. 132 ; (k) Bantree v. Watson, 2 Keen, 
 Exp. Bryant, 1 Mad. 19. 713.
 
 LIENS. 
 
 defendant of another judgment against the cHent (I). But 
 see also Exj). Cleland (m). 
 
 The solicitor of a trustee has no lien upon the trust fund 
 for the general costs of the trust, though the trustee upon 
 paying those costs might take them out of the fund(u). 
 The solicitor for an executor, however, has a lien on the 
 deeds of the estate if the executor or his estate is not 
 indebted to the estate of the testator (o) . 
 
 Previous to 23 & 24 Vict. c. 127, a solicitor had no lien 
 for his costs against real estate either at law or in equity. 
 By s. 28 of that Act it is enacted that it shall be lawful for 
 the Court or judge, before whom any suit or matter has 
 been heard, to declare that the solicitor employed therein 
 is entitled to a charge upon the property recovered or pre- 
 served by his instrumentality in such suit or matter ; and 
 that all conveyances and acts done to defeat such charge 
 shall, unless made to a bond fide purchaser without notice, 
 be absolutely void and of no effect as against such charge 
 or right. This Act applies to property of all kinds (2')), and 
 a liberal construction is placed upon the word " preserved." 
 The appointment of a receiver of the real estate of an infant 
 has been held to bring the property within the section (q). 
 
 A solicitor who takes a security is considered to have 
 abandoned his lien (7-), but for this purpose a charging order 
 under the Act is not deemed a security so as to interfere 
 with the lien which he enjoys apart from the Act (s). 
 
 II. Equitable Liens. 
 
 1. The most conspicuous and important among equitable 
 liens are those arising from charges of legacies and portions 
 
 (I) Barker v. St. Quentin, 12 
 M. & W. 451 ; Mercer v. Graves, 7 
 L. K g. B. 499, 505-6. 
 
 (m) 2 Ch. 813. 
 
 (n) Hall V. Larer, 1 Ha. 571. 
 
 (o) Turner v. Letts, 7 Be G. M. & 
 G. 243. 
 
 (^5) Birchall \. Pwjin, 10 L. E. 
 C. P. 399. 
 
 (q) Baile v. B., 13 Eq. 497. 
 
 (r) Balsh v. Symes, T. & R. 92. 
 
 (s) De Bay v. Griffiyr, 10 Ch. 
 294 n.
 
 EQUITABLE LIENS. 209 
 
 upon real estate. Such liens create a trust which equity 
 will enforce against the person creating the lien, and 
 persons claiming as volunteers or with notice under him. 
 The effect of such charges is more fully considered else- 
 where {t). 
 
 2. The lien of a vendor for unpaid purchase-money and Lien of 
 that of a vendee for prematurely paid purchase- money are 
 also characteristic instances of equitable liens, and therefore 
 require detailed investigation. 
 
 In discussing the application of the well-known equit- 
 able principle known as the vendor's lien, it is necessary 
 to distinguish between its operation as between the vendor 
 and purchaser, and as between the vendor and third per- 
 sons claiming through or under the purchaser. As, how- 
 ever, persons claiming under the purchaser as volunteers 
 are in the same position as himself, the most convenient 
 distribution of the subject is to include volunteers in the 
 first inquiry, and then to consider the extent of the ven- 
 dor's lien as against those whose title is derived from the 
 purchaser for valuable consideration. 
 
 (1.) Vendor s lien against a purchaser, his heirs, and 
 voluntary assignees. 
 
 The general principle as to the lien of the vendor of an General 
 estate is fully expressed in the judgment of Lord Eldon in 
 
 MACKRETH v. SYMMONS, 
 
 [15 Ves. 329 ; 1 W. & T. L. C. 324,] 
 
 which is to the following effect : Where a vendor, in com- 
 pliance with a contract for the sale of an estate, executes a 
 conveyance thereof, but the purchase-money is wholly or 
 partially unpaid, then, notwithstanding that on the face of 
 the conveyance it is expressed to be paid, or that a receipt 
 for it is endorsed thereon, the vendor has a lien on the 
 estate for the money remaining due to him 
 
 The same case further shows that the mere circumstance 
 of taking an additional security is not inconsistent with 
 
 (t) pp. 298, et seq., 497—9.
 
 270 
 
 LIKNS. 
 
 Applies to 
 copyholds 
 and lease- 
 holds, 
 
 not to per- 
 sonal 
 chattels, 
 
 when con- 
 sideration 
 is an 
 annuity. 
 
 Lien 
 
 doubtful 
 
 where 
 
 there is 
 
 other 
 
 security. 
 
 Lien ex- 
 tends to 
 moneys 
 advanced. 
 
 the continuance of the lion. The circumstances which are 
 considered to amount to a waiver or abandonment of the 
 lien are hereafter separately discussed. It suffices now to 
 say that the taking of a bond, or bill, or promissor}^ note, 
 is not of itself evidence of an intention to waive the 
 lien (u). 
 
 The lien applies to copyholds and leaseholds as well as 
 to freeholds (x), and attaches when possession of the estate 
 has been delivered to the purchaser, though there has been 
 no conveyance to him (y). It does not, however, apply to 
 personal property other than chattels real. As soon as a 
 purchaser has possession (actual or constructive) of such 
 property, the lien is gone (z). The question of stoppage 
 in transitu depends on a different principle, not relevant 
 to the present inquiry. 
 
 Where the consideration for the sale of an estate is in 
 the form of an annuity, the lien attaches to secure the 
 annuity, at least if no other security for that purpose is 
 taken. Where the annuity has been secured by a bond or 
 covenant, the cases have been somewhat conflicting. In 
 the principal case, Lord Eldon held that there was no lien 
 for the annuities ; but he did so rather in consideration of 
 the special circumstances of the case, than as a general 
 principle of law. In Tardiffe v. Scrughan (a) the lien was 
 allowed, and this case has never been overruled, though in 
 somewhat similar circumstances some judges have been 
 slow to follow it (b). See also in favour of the lien Matthew 
 V. Bowler (c), Sugden V. & P. 676, ed. 14. 
 
 If a vendor agrees to lend money to the purchaser for 
 improving the estate, his lien extends to the advances so 
 made, as well as to the purchase (d). 
 
 Special consideration is required of those cases in which 
 
 (u) Collins V. C, 31 Beav. 346 ; 
 Iluf/hes V. Kearney, 1 S. & L. 134. 
 
 (ic) Winter v. Ansson, 3 Russ. 492 ; 
 Mattheic V. Bowler. 6 Ha. 110. 
 
 (y) Smith v. Hihhard, 2 Dick 730. 
 
 (2) 15 Ves. 344 ; Exp. Gwynne, 12 
 Ves. 383. 
 
 (rt) 1 Bro. C. C. 423. 
 
 (6) Clarke v. Boyle, 3 Sim. 502 ; 
 Bucklarid v. PockneU, 13 Sim. 412. 
 
 (c) Sup. 
 
 \d) Exp. Linden, 1 M. D. & De G. 
 435.
 
 vendor's lien. 271 
 
 a vendor asserts his lien with respect to a sale to a railway 
 or other company. 
 
 As a general rule, the lien attaches to lands purchased Lien &?> 
 by such companies, whether by agreement or in the exer- ^fiiway 
 cise of compulsory powers (e) ; and it includes unpaid a"*^ ft;her 
 
 ,. companies 
 
 compensation as well as purchase-money, unless such com- generally, 
 pensation is the subject of a separate agreement. Although 
 a railway may have been made over the land, the lien may 
 be enforced by sale(/); but not by an injunction restrain- 
 ing the use of the railway (g). 
 
 Where, however, the consideration for the purchase is a Where the 
 rent-charge on the lands, there is no lien for securing its tion\s^a* 
 payment (h), but the owner of the rent-charge is entitled ^^^^- 
 to a receiver of the tolls and net earnings of the under- 
 taking, and may distrain on the lands (i). 
 
 A vendor's lien is so far regarded as an interest in land Lien 
 as to be within the Mortmain Act (k), and a bequest of Mortmain 
 money due thereupon is therefore void (/) ; and it seems ^^^' 
 that a mere parol assignment of it would be ineffectual, as and 
 within the Statute of Frauds, unless accompanied by a Frauds, 
 deposit of title deeds (m). The lien, however, is not such but not an 
 an interest in land as to come within sect. 23 of the Sa^d^^fthhi 
 Wills' Act (n). So, if, after devising an estate, the devisor Wills Act. 
 contracts to sell it, the purchase-money will belong to the 
 personal representatives and not to the devisee (o). 
 
 A vendor's lien not being an express trust, the right to Lien 
 enforce it may be barred by the Statute of Limitations at statute of 
 the end of twelve years (p), unless the case is taken out of Limita- 
 
 • p 1 1 rti • tions. 
 
 the operation ot the statute by a sumcient acknowledg- 
 ment (q). 
 
 (e) Walker v. Ware d:c. Co., 1 Eq. (1) Harrison v. H., 1 R. & M. 71. 
 
 195. \m) Dryden v. Frost, 3 My. & Cr. 
 
 (/) Cosens v. Bognor cSsc. Co., 1 Ch. 670 : Meux v. Smith, 11 Sim. 421. 
 
 594 ; Munns v. /. of Wight R. Co., (n) 1 Vict. c. 26. 
 
 5 Ch. 414. (o) Farrar v. E. of Winterton, 5 
 
 (g) Pell V. Northampton &c. R. Co., Beav. 1. But see Drant v. Vause 
 
 2 Ch. 100. 1 Y. & C. Ch. 580. 
 
 (A) E. of Jersey v. Briton dx. Dock {p) 3 k 4 Will. IV. c. 27 ; 37 & 
 
 Co., 7 Eq. 409. 38 Vict. c. 57. 
 
 {i) Eytonv. Denbighd-c. Co., 6Eq.li. (q) Toft v. Stephenson, 1 De G. M. 
 
 (k) 9 Geo. II. c. 36. & G. 28 ; 5 ih. 735.
 
 Whom the 
 lien binds. 
 
 272 LIENS. 
 
 Not within A vendor's lien was held not to be a mortgaoje within 
 1 7 & 18 o <=> 
 
 Vict. c. Locke King's Act (>•), so that the personal estate of a 
 '^' deceased purchaser was primarily liable for the payment 
 
 cimled in ^^ ^^® purchase-money (s) ; but, by 30 & 31 Vict. c. G9, the 
 amending word " mortgage " was declared to include any lien for un- 
 paid purchase-money upon any lands purchased by a 
 testator ; and by 40 & 41 Vict. c. 34, the same construction 
 was applied in case the purchaser died intestate. 
 (2.) Vendor's lien as against purchasers for value. 
 The equitable lien for unpaid purchase-money binds the 
 estate, as well in the hands of persons claiming for valuable 
 consideration under the purchaser with notice, as in the 
 hands of the purchaser himself, his heirs, and voluntary 
 assignees (t) ; but the lien will not prevail against a bond 
 fide purchaser who buys without notice that the purchase- 
 money remains unpaid, and acquires the legal estate (w). 
 If, however, the legal estate is outstanding, then, as the 
 second purchaser has only an equitable interest subsequent 
 in time to the equitable lien, the equitable lien will have 
 precedence, conformably to the maxim " Qui prior est tem- 
 pore potior est jure {x). But this again is subject to modi- 
 fication, since priority in time will not avail unless the 
 Lien may equities are equal. If, therefore, the vendor has been 
 negUo-ence. S'^^^^J ^f negligence, he may lose his lien. Thus in Rice 
 V. Rice (y), certain leaseholds were assigned to a purchaser 
 by a deed which recited the payment of the whole of the 
 purchase-money, and had the usual receipt endorsed on it ; 
 the title deeds were delivered up to the purchaser, but the 
 whole of the purchase-money was, in fact, not paid. The 
 purchaser forthwith deposited the assignment and title 
 deeds to secure an advance. It was held that the equity 
 arising from the deposit ought to prevail against the lien, 
 on the ground that the vendor had, by his negligence, 
 
 (r) 17 & 18 Vict. c. 113. (u) Cator v. E. of Pemhroke, 1 Bro. 
 
 (s) Hood V. H., 3 Jur. N. S. 684. C. C. 302. 
 
 {t) Walker v. Presivick, 2 Ves. {x) Frere v. Moore, 8 Pri. 475. 
 
 622 ; Winter v. Anson, 3 Pai.sf. 488 ; (?/) 2 Drew, 73. 
 1 S. & S. 434.
 
 vendor's lien. ~ 273 
 
 placed it in the power of the purchaser to deal with the 
 estate as absolute owner at law and in equity. 
 
 The results are : — 
 
 i. That the lien prevails against a second purchaser 
 with notice, even though he acquires the legal estate ; and 
 as against a purchaser without notice, if the legal estate 
 is outstanding, and the vendor has not been guilty of 
 negligence. 
 
 ii. That the lien does not prevail against a bond fide 
 purchaser, who acquires the legal estate without notice ; 
 nor against a purchaser of an equitable interest, where the 
 first vendor has been guilty of negligence. Or perhaps it 
 may be said still more generally that the lien will not 
 prevail against a subsequent equitable mortgagee who 
 strengthens his equity by acquiring possession of the title 
 deeds. 
 
 The force of the lien being thus in a great measure What 
 dependent upon the question of notice, we may here add ^^ notice, 
 some illustrations, especially touching this class of cases, of 
 what does and does not constitute notice, though this 
 subject is more fully considered elsewhere (0). 
 
 Where a subsequent purchaser or mortgagee omits to Omission 
 make inquiries for the title deeds of the property in ques- for"i*ti'e'^^ 
 tion, or accepts an insufhcient excuse for their absence, the deeds. 
 Court will impute to hira notice of a prior claim, and will 
 enforce it against him, although he may acquire the legal 
 estate (a). Not so, however, if he has made inquiry, and a 
 reasonable excuse has been given for the non-appearance 
 of the deeds (b). 
 
 Where the vendor has acknowledged the receipt of the Effect of 
 purchase-money in the body of the deed and by endorse- pj^^gg* 
 ment, the fact of his remaining in possession of the estate 
 as lessee will not amount to notice of the purchase-money 
 remaining unpaid (c). 
 
 (z) See p. 280 et seq. (b) Allen v. Knight, 5 Ha. 272 ; 
 
 (a) Worthington v. Morgan, 16 Hewitt v. Loosemore, 9 Ha. 449. 
 
 Sim. 547; J'eto v. Hammond, 30 (f) Wliite v. WaJceficld, 7 i^im. 401. 
 
 Beav. 495.
 
 274 LIENS. 
 
 Recitals. A recital showing that the title is deduced from the first 
 vendor, but not showing that the purchase-money has not been 
 paid, is not sufficient to afiect a purchaser with notice (d). 
 Trustee in The trustee in bankruptcy of a purchaser will be 
 ruptcy affected by the lien of a vendor, though he may have had 
 bound. j-^Q notice, since he takes subject to all equities attach- 
 ing to the bankrupt (e). 
 
 (3.) What amounts to waiver or ahandonmient of the lien. 
 Lien not We have seen that the mere fact of the vendor taking 
 takhio- a^ ^^ additional security for his money is not per se a waiver 
 security gf his lien. Lien depends on an implied contract, and the 
 
 ipso facto. • • 1 1 /• 1 • o ^ J.-L 
 
 question is, whether trom the circumstances oi the case the 
 Court will infer that the lien was intended to be reserved, 
 or that the intention was to give credit exclusively to the 
 person from whom the security was taken. 
 It is a The general rule is that although the mere taking of a 
 
 mttntion" ^ond, bill, promissory note, or covenant for the purchase- 
 money will not destroy the lien, yet where it appears that 
 the bond, note, or covenant was substituted for the consi- 
 deration money, and was in fact the thing bargained for, 
 the lien ceases to exist. In other words, if the considera- 
 tion for which the estate is sold is the bond, note, or 
 covenant, then on the giving of this security, the vendor 
 gets all that he bargained for, the transaction is complete, 
 and he cannot thereafter assert a lien. It is evident that 
 as a rule the intention of the vendor is not by taking one 
 security to lose another. It requires, therefore, clear 
 evidence to show that a lien was not intended (/ ). An 
 express agreement is, however, not required, and a few 
 illustrations will serve to indicate what acts short of that 
 will be considered sufficient for the purpose. 
 What Where there was a stipulation that payment of the pur- 
 
 tosuffi-^ chase-money should be deferred until a certain time after 
 cient indi- q, resale of the property, the vendor was considered to have 
 
 cation of , , , , . , . . 
 
 intention abandoned his lien {g). 
 
 (d) Cator v. K of Pembroke, 1 Bro. (/) 15 Ves. 341 ; Frail v. Ellis, 
 C. C. 302. 16 Beav. 350. 
 
 (e) Exp. Hanson, 12 Ves. 349. [g) Exp. P<irkes, 1 G. & J. 228. 
 
 •
 
 vendor's lien. 275 
 
 A mortcrasfe of other lands for the whole or part of the *« waive 
 
 J^ the hen. 
 
 purchase-money {h), or a mortgage of the purchased estate Deferred 
 for part of the purchase-money, permitting the rest to payment, 
 remain on personal security, has been thought sufficient to ^f g'ther^^ 
 discharge the lien — in the first instance wholly, in the lands, 
 second to the extent of the money remaining on the 
 personal security {i). The former of these cases was, 
 however, not considered conclusive by Lord Eldon in 
 Mackreth v. Symmo'ris (Jc), and it would seemingly be 
 necessary to look further at the whole circumstances of the 
 case (l). 
 
 If a vendor, knowing the purchase-money to be trust Suffermg 
 money, suffers one of the trustees to retain part of it "^^^^gg ^^ 
 without the knowledge of the co-trustees or the cestui que retain 
 trust, he has no lien for the part so retained (m). Where, money, 
 again, the vendor, without receiving the purchase-money, 
 executes a conveyance for the purpose of enabling the 
 purchaser to execute a mortgage, he will lose his lien as 
 against the mortgagee (n). These cases are, however, 
 rather illustrative of the loss of the lien by negligence than 
 of its intentional waiver. 
 
 We have already seen that where the consideration for slight evi- 
 the purchase is an annuity, slighter evidence will suffice to g^^^^clent 
 show an intention to abandon the lien than in other cases ; where con- 
 if it may not even be said that in these circumstances the jg ^n 
 presumption is against the lien. annuity. 
 
 A vendor, herein differing from a mortgagee, cannot pro- Vendor 
 ceed to enforce his lien and his collateral securities at the "^y °°\ . 
 
 eniiirce his 
 
 same time (o) ; and he will be postponed to a mortgage lien and 
 of the estate made to secure a part of the purchase-money securities 
 advanced by such mortgagee, if he is an assenting party to together. 
 the mortgage (p). 
 
 (h) Nairne v. Prowse, 6 Ves. 752. (m) White v. Wcikefield, 7 Sim. 401. 
 
 (i) Bond V. Kent, 2 Vern. 281 ; \n) Smith v. Evans, 28 Beav. 59. 
 
 Capper v. Spottisivoode, Taml. 21. (o) Nairne v. Prowse, sup.; Barker 
 
 (k) 15 Ves. 329. v. Smart 3 Beav. 64. 
 
 (I) Saunders v. Leslie, 2 Ba. & Be. (p) Good v. Pollard, 9 Bri. 544 ; 
 
 509. 10 ih. 109. 
 
 t2
 
 LIEXS. 
 
 (4.) Marshalling for lien. 
 
 The general principles of marshalling are expounded 
 elsewhere (p. 509 et seg.), and it is therefore only necessary 
 here to refer to its application in the particular case of a lien. 
 
 Following the rule that if one person has two funds to 
 which he may resort, he shall not disappoint another 
 person who can only resort to one of the funds, the Court 
 will, in the event of the death of the vendee, marshal the 
 assets in favour of third persons, so as in case of necessity 
 to compel the vendor to resort to the purchased estate for 
 his money (q). At one time it was thought that to do 
 this would be to invade the Statute of Frauds, but it is 
 now well established that, as well in favour of legatees as 
 of creditors, the principle of marshalling will be applied. 
 Legatees, however, can, of course, in this, as in other cases, 
 demand the benefit of marshalling only against those 
 whose claim is weaker than their own — e.g., against the 
 heir taking by descent — not against devisees, who are as 
 much an object of bounty as themselves (r). 
 
 3. Lien of a "purchaser for prematurely paid pur- 
 chase-money. 
 
 Quite analogous to the lien of a vendor on the estate for 
 unpaid purchase-money is the lien of the purchaser in case 
 he has paid the purchase-money or any part of it pre- 
 maturely. If the contract is after such payment rescinded, 
 or cannot be enforced owing to want of title in the vendor, 
 or is for any proper reason disclaimed by the purchaser, he 
 has a lien on the estate in the hands of the vendor for the 
 money so paid, with interest thereon, and for his costs (s). 
 
 The principles applicable to a vendor's lien are equally 
 so here. Thus the taking of another security for the 
 money is not inconsistent with the lien (t) ; it obtains not 
 only against the vendor, but against a subsequent mort- 
 gagee who has notice of the payments having been 
 
 (q) Trimmer v. Bayne, 9 Ves. 209 ; 
 Sproule V. Prior, 8 iSim. 189. 
 
 (r) Wythe v. Henniler, 2 My. & 
 K. 635. 
 
 (s) Wythes V. Lee, 3 Drew, 396 
 Torrance v. Bolton, 14 Eq. 124 ; { 
 Ch. 118. 
 
 {t) Wytlie.-i V. Lee, sup.
 
 vendee's lien. 277 
 
 made {u) ; and there is no lien where the contract goes off 
 through the purchaser's own default {x). 
 
 If the first purchaser of an estate sells the estate while Sale of 
 subject to alien for prematurely paid purchase-money, and L^^ ^ ^^e 
 the second purchaser also pays his purchase-money pre- ^i*^". 
 maturely, and afterwards the first contract goes off, the 
 second purchaser then has a lien upon the first purchaser's 
 interest — that is, a lien upon the sum for which the first 
 purchaser has a lien {y). 
 
 If the vendor is a mortgagee selling under a power of 
 sale, the purchaser's lien attaches only upon the interest 
 of the mortgagee, not to the prejudice of the mortgagor {z) ; 
 but it may affect the interest of persons for whom the 
 mortgagee is a trustee (a). 
 
 [u) Rose V. Watson, 10 H. L. 672. Wickens, 4 Ch. 101. 
 
 (x) Dinn v. Grant, 5 De G. & Sm. {z) Wythes v. Lee, sup. 
 
 451. (a) Ibid. 
 {y) Aberaman Iron Works v.
 
 MORTGAGES AND SALES. 
 
 Sfxtiox Y. — Equitable Pkixciples Particltlarly 
 Affecting Mortgages and Sales. 
 
 I. Notice. 
 
 1. Effects of Notice. 
 
 2. What constitutes Notice. 
 
 (1.) Actual Notice. 
 (2.) CoTistT^ctive Notice. 
 8. Matters ancdogous to Notice. 
 II. Defence of Purchase for Value without Notice. 
 
 1. Where Defendant has Legal Estate. 
 
 2. Where Legal Estate is outstanding. 
 
 3. Where Plaintiff has Legal Estate. 
 
 4. Active Relief to bona fide Purchaser. 
 
 III. Liability of Purchasers for Application of Pur- 
 chase-money. 
 
 1. As to Personalty. 
 
 2. As to Realty. 
 
 3. Statutory Modifications. 
 
 IV. Assignment of Possibilities and Chosesin Action. 
 
 1. Contrast of Law and Equity. 
 
 Warmstrej v. Tanfield. 
 Row V. Dawson. 
 
 2. Notice. 
 
 Ryall V. Rowles. 
 
 3. Assignee subject to Equities. 
 
 4. Judiccdure Act, s. 25, sub-s. G. 
 
 5. Unlavjful Assignments. 
 
 I. Notice. 
 
 1. The effects of notice. 
 
 (1.) A purchaser for value without notice is, as we 
 have seen, in many resf)ects favoured in equity. It is 
 well established that a person who purchases an estate 
 after notice of a prior equitable right makes himself a 
 mcddfide purchaser, and will not be able to defeat the
 
 xoTKjJi:. 279 
 
 prior right by getting in the legal estate for his protec- 
 tion. On the contrary, he will be held a trustee for the 
 benefit of the person whose right he sought to defeat ; and 
 he secures no better position than that of the person who 
 conveys to him. 
 
 Perhaps the most frequent illustrations of the principle 
 are afforded by cases in which a person purchases, or takes 
 a legal mortgage of an estate with notice of a prior equit- 
 able mortgage by deposit of title deeds (6), or of a prior 
 equitable Hen for unpaid purchase-money (c) ; and those 
 cases in which a person purchases with notice of a 
 trust (d). 
 
 (2.) It is established that where registration is required EflFect of 
 an earlier registration will not sufiice to gain priority in trfti^on 
 the face of notice of the um-egistered deed (e). But if the 
 second transaction was without notice at its inception, 
 priority may then be gained by a registration made 
 after knowledge of the earlier unregistered, or defectively 
 registered, deed has been acquired (/). Registration, Registra- 
 moreover, is, under the English Acts, not of itself notice ; ^g^ce^* 
 so that a prior equitable incumbrance will not, though 
 registered; affect a subsequent purchaser without notice 
 who obtains the legal estate (g). The Irish Registration Secus in 
 Act (Ji) is differently fmmed, and expressly gives priority ^^ ^ ' 
 to instruments in the order of their registration (i). 
 
 (3.) AMiere a person purchases for valuable considera- Purchase 
 tion, but with notice of a prior charge, from a person Avho f).|,jn ^^ '^ 
 acquired his interest without notice of it, he may protect i^rscjn 
 himself behind the bona fides of the first purchaser {h). notice. 
 At first sight this seems inconsistent with the principle 
 that personal Tnala fides disentitles to protection ; but 
 it is evident that if it were otherwise the first hand fide 
 
 (6) Birch V. Ellames, 2 Anst. 427. Essex v. Baurjli, 1 Y. & C. Ch. C. 
 
 (c) Mackrith v. Symmons, 15 Ves. 620. 
 
 349. {(/) Moreaxk v. Dictins, Amb. 
 
 (d) I^unbar v. Tredinnick, 2 BuU. 678. 
 
 & B. 319. (/() 6 Anne, c 2. 
 
 (e) Le Xeve v. Le N., Amb. 436. (;) BushM v. B., 1 S. & L. 98. 
 (/) Elsey V. Lutyens, 8 Ha. 159 ; (k) Lowther v. Gordon,^ At^. 242.
 
 280 
 
 Mortgages a^d sales. 
 
 Purchase 
 without 
 notice 
 from 
 
 person who 
 has notice : 
 where the 
 title is 
 
 where 
 equitable. 
 
 Notice 
 effectual 
 if before 
 actual pay- 
 ment or 
 before 
 actual 
 convey- 
 ance. 
 
 Notice 
 actual 
 or con- 
 structive. 
 
 Actual 
 notice. 
 
 Con- 
 structive 
 notice. 
 
 purchaser would be the sufferer, being so far hindered in the 
 exercise of his innocent right. 
 
 Conversely, if a person who has notice sells to a 
 bond fide purchaser without notice, and the latter secures 
 the legal title, he is protected against the prior charge {I). 
 If, however, a merely equitable interest is dealt with in 
 this case, the result is different, since persons purchasing 
 equitable interests take them subject to all the equities 
 affecting them. Thus the assignor could not give the 
 assignee a better interest than he himself had — namely, an 
 interest subject to the charge of which he had notice {vi). 
 
 (4.) Notice before actual payment of the purchase- 
 money is sufficient to bind a purchaser, as well as notice 
 previous to his contract, since after such notice he may 
 rescind his contract in equity (w). And, conversely, notice 
 before the execution of the conveyance is binding, 
 although the purchase-money may have been paid before 
 notice, since the purchaser may secure himself by retaining 
 the legal estate (o). 
 
 2. What constitutes notice. 
 
 Notice is either actual or constructive. 
 
 (1.) Actual notice, or, in other words, express notice, is 
 a term sufficiently clear to need no explanation. It 
 may be either written or oral (except in cases in which a 
 written notice is stipulated for). Vague reports from 
 persons not interested in the property do not, however, 
 amount to notice ; nor do mere general assertions that 
 some other persons claim a title (p). In order to be 
 binding upon a purchaser the information must proceed 
 from some person interested in the property (g). 
 
 (2.) Constructive notice is nothing other than evidence 
 of notice so strong that the Court will act upon it in the 
 absence of contradiction (r). Such being the nature of con 
 
 (I) Harrison v. Forth, Prec. Ch. 51. 
 
 (m) Ford v. White, 16 Beav. 120. 
 
 (n) Toarville v. Naish, 3 P. Wms. 
 307. 
 
 (o) Wvig v. W., 1 Atk. 382; 
 Sparke V. Foy, i Ch. 35. 
 
 ( p) JoUand v. Stainbridge, 3 Ves. 
 478. 
 
 (q) Bmnihart v. Greenshields, 9 
 Moo. P. C. 18, 36. 
 
 (r) Piu7nb V. Fluitt, 2 Anst. 438.
 
 NOTICE. 281 
 
 structive notice, it is evidently impossible to formulate a 
 concise description of what shall be sufficient to amount 
 thereto. A clear conception as to this can only be reached 
 by means of illustration, and this will be facilitated by the 
 following classification. 
 
 i. Notice of a fact is notice of its causes ; or, in other Notice of a 
 words, where there has been actual notice of a fact which ^^f^^^^^^'^ 
 would have the effect of putting a reasonable person upon causes. 
 further inquiry, the result will be constructive notice of 
 other facts which would be elicited by such inquiry. 
 
 (a.) The simplest illustration of this is where a purchaser Notice that 
 is informed that the legal estate is in a third person. He jg^o^t^^ 
 is then bound to inquire the reason ; and if he does not, standing, 
 he will, nevertheless, be presumed to know the circum- 
 stances which have occasioned it, or the terms of a trust 
 attached to the legal estate (s). Similarly, actual notice or that the 
 that the title deeds are in the hands of another man will ^re heWby 
 in general be constructive notice of any charge which he a third 
 may have thereon (t). If, however, in such a case a bond 
 fide inquiry is made for the deeds, and the purchaser is 
 then deceived and put off by a plausible and reasonable 
 excuse for their absence, constructive notice will not be 
 imputed to him (u). The Court will clearly impute fraud 
 or gross and wilful negligence in a case where after such 
 notice the purchaser omits all inquiries (pc). Where the 
 title deeds are in the possession of a solicitor, this does not 
 amount to a constructive notice of the solicitor's lien there- 
 upon, since such possession is ordinary in the course of 
 business, and as a rule the possession is the cause of the 
 lien, rather than the lien the cause of the possession. 
 
 (6.) Any marked peculiarity in a deed — for instance, the Peculiari- 
 absence or peculiar position of a receipt clause — is con- deeds. 
 sidered sufficient to put a person upon inquiry ; and if it 
 proves to be connected with the circumstances for which 
 
 (s) Anon, Freem. 137. 449 ; Exp. Hardy, 2 D. & C. 
 
 (t) Birch V. EUames, 2 Anst. 427 ; 393. 
 
 Maxfidd V. Burton, 17 Ecj. 15. (x) Worthington v. Morgan, 16 
 
 (u) Hewitt V. Loosemore, 9 Ha. Sim. 547.
 
 282 
 
 MORTGAGES AND SALES. 
 
 Occupa- 
 tion })y 
 third 
 person. 
 
 Actual 
 notice of 
 tenancy. 
 
 the deed might be set aside, it will be held constructive 
 notice of such circumstances {y). It will not, however, 
 be constructive notice of other irregularities in the trans- 
 action (z). 
 
 (c.) As a general rule, if a person purchases an estate 
 which he knows to be in the occupation of another than 
 the vendor, the fact of such occupation is sufficient to put 
 him upon inquir}^ He will therefore be presumed to be 
 aware of and will be bound by all equities which such 
 occupier may have in the laud. The purchaser has, in 
 short, actual notice of a fact affecting the property and 
 constructive notice of the circumstances which give rise to 
 it. If the tenancy is under a lease, he will be held to 
 have notice thereof, and of its contents (a). If the tenant 
 in possession has entered into a contract for the purchase 
 of the estate, a subsequent purchaser will be held to 
 have notice of the contract (Jj). If two persons are 
 together carrying on business on the property, their 
 possession is constructive notice of the title of the 
 partnership (c). The same notice is not, however, implied 
 as between the vendor and purchaser while the matter is 
 still in contract : that is to say, though the subsequent 
 purchaser, if he completes his contract, is bound by the 
 equities of the previous purchaser, he cannot be compelled 
 by the vendor to complete a contract which he had entered 
 into in ignorance of those equities, on the ground that the 
 possession was constructive notice thereof (d). It is plain 
 that an innocent first incumbrancer does not stand on the 
 same footing as a vendor, who is under at least a moral 
 obligation to make full disclosure of any burdens on the 
 property of which he is negotiating a sale. 
 
 On the same principle, actual notice that an occupier 
 holds as a tenant of a particular person is constructive 
 
 {y) Kennedy v. Green, 3 My. & 437, 440. 
 
 K. d99. (b) Daniels v. Davison, 16 Ves. 
 
 (2) Grccndade v. Dane, 20 Beav. 249, 17 Ves. 433. 
 
 284. (c) Carander v. Bidteel, 9 Ch. 79. 
 
 [a) Taylor v. Stibbcrt, 2 Ves. jr. (d) CabcOlcro v. Henty, 9 Ch. 447.
 
 NOTICE. 288 
 
 notice of the title of the latter (e) ; and actual notice that 
 the tenants pay their rents to a particular person is con- 
 structive notice of the terms of their tenancy (/). But 
 notice of tenancy is not, it seems, generally notice of the 
 lessor's title (g). 
 
 (d) The visible appearance of the property in question Visible 
 may be such as to put a purchaser upon inquiry, thus ance of 
 amounting to constructive notice of certain rights respect- property, 
 ing it. Thus the fact that there were fourteen chimney- 
 pots upon a house in which there were only twelve flues 
 was held to amount to constructive notice of an easement 
 for the passage of the smoke of an adjoining owner (h). 
 The existence of an archway was considered notice of a 
 right of way under it (i) ; and the existence of a sea-wall, 
 notice of an obligation for its maintenance and repair (k). 
 The existence of windows is not, however, constructive 
 notice of an agreement giving a right to the access of light 
 to them, since windows are frequently made where they 
 are liable to be obstructed, the builder being content to 
 take his chance of acquiring a right by prescription (I). 
 
 ii. Notice of a deed is notice of its contents. Notice of a 
 
 It is immaterial whether from the description of the noticeofits 
 parties, or from the recitals or from any other part of the contents. 
 deed, the purchaser woidd be enabled to discover an 
 interest prior to his own. He must be presumed to be 
 acquainted with the whole contents, and therefore with 
 other deeds to which it necessarily refers {ni). Thus a 
 conveyance by persons interested as devisees is notice of 
 the will by which they claim {n); notice of a lease is notice 
 of the covenants therein (o); and notice of a post-nuptial 
 
 (e) Bailey v. Richardson, 9 Ha. 790. 
 
 734. (m) Bisco v. E. of Banbury, 1 Ch. 
 
 (/) Knight v. Bowyer, 2 De G. & Ca. 287 ; Coppin v. Fernyhowjh, 2 
 
 J. 421. Bro. C. C. 291 ; Danes v. Thomas, 
 
 {g) Jones v. Sviitk, 1 Ha. 43. 2 Y. & C. Ex. 234. 
 
 (A) Hervey v. Smith, 22 Beav. 299. (n) Burgoyne v. Hatton, Barn. Ch. 
 
 {i) Davies v. Sear, 7 Eq. 427. Rep. 237. 
 
 \k) Morland v. Cool; 6 Eq. 252. (o) Taylor v. Stihhert, sup.; Pat- 
 
 Ll) Allen v. Seckham, 11 Ch. D. man \ . Harland, 17 Ch. D. 353.
 
 284 
 
 MORTGAGES AND SALES. 
 
 Notice to 
 agent is 
 notice to 
 principal. 
 
 Limitation 
 of this 
 principle. 
 
 Notice 
 must be in 
 the same 
 transac- 
 tion, 
 
 and of 
 
 material 
 
 facts. 
 
 Solicitor 
 
 settlement was held to be notice of an agreement before 
 marriage for a settlement, even though not recited (p). 
 
 A person is not, however, presumed from one deed to 
 have notice of another referred to therein which does not 
 necessarily affect the property in question, and which he 
 is told does not affect it (g). Where in particulars 
 of sale there is a bare reference to a deed which the 
 purchaser can inspect, he Avill be bound by its contents : 
 but if the vendor purports to state what the contents are, 
 the purchaser may reasonably rely thereupon, and will 
 not be affected by any inaccuracies in the vendor's state- 
 ment (r). 
 
 iii. Actual notice to an agent is constructive notice to 
 his principal. 
 
 It is well established that notice to the agent, solicitor, 
 or counsel of a purchaser is constructive notice to him- 
 self (s) ; and the same rule applies though the same person 
 may act as agent of both vendor and purchaser (t). 
 
 But this principle must be understood with some limi- 
 tations. Thus — 
 
 (a.) In order to affect the principal with constructive 
 notice the actual notice must have been given to the agent 
 in the same transaction (u), or at least in a transaction so 
 closely connected with the one in question as to be ne- 
 cessarily present to the mind of the agent when engaged 
 therein (x). 
 
 (6.) The notice, in order to be imputed to the principal, 
 must be notice of facts material to the question at issue, 
 and such as it is the duty of the agent to communi- 
 cate (y). 
 
 (c.) The employment of a solicitor to do a merely minis- 
 
 (p) Ferrars v. Chen'y, 2 Vein. 
 383. 
 
 iq) Jones v. Smith, 1 Ha. 43. 
 
 (?•) Cox V. Coventon, 31 Beav. 378. 
 
 (s) Sheldon v. Cox, 2 Ed. 228 ; 
 Neivstead v. Series, 1 Atk. 265. 
 
 (t) Fuller V. Bennet, 2 Ha. 402 ; 
 
 Tweedale v. T., 23 Beav. 341. 
 
 (u) Warivkh v. W., 3 Atk. 294; 
 Hamilton v. Royse, 2 S. & L. 327. 
 
 (.e) Hanjreaves v. Rothwell, 1 Kee. 
 159. 
 
 (y) Wyllie v. Pollen, 32 L. J. Ch. 
 N. S. 782.
 
 NOTICE. 285 
 
 terial act, such as to procure the execution of a deed, does employed 
 not so constitute him an agent as that notice to him shall terially. 
 be constructive notice to his employer (z). 
 
 (d.) If a solicitor acting for both parties is guilty of a Solicitor 
 concealment from one of them with the cognisance of the framhilent 
 other, the former is not affected with constructive notice («); conceal- 
 nor if he is himself the author of a distinct fraud in the 
 same transaction is his knowledge tliereof imputed to the 
 employer (6), since it is not to be presumed that the solicitor 
 would make a disclosure of such a fact (c). The mere fact 
 of his having been guilty of fraud at some other time in 
 respect of the same property will not prevent the imputa- 
 tion of his knowledge in accordance with the ordinary 
 rule (d). 
 
 (e.) The mere fact of two companies having the same Two com- 
 
 solicitor or one or more directors in common does not P^'^ies 
 
 ££> • T • n 1 nn f ^^*^ Same 
 
 atiect each company with notice of the affairs of the solicitor or 
 
 other (e). ? '^"'^^*«'' 
 
 ^ ■' in com- 
 
 (3.) Matters analogous to constructive notice. mon. 
 
 Knowledge is sometimes, by presumption of law, imputed Analogous 
 to parties after a manner analogous to the principle of"^^"'^''^' 
 constructive notice. 
 
 (i.) Everyone is presumed to know the law. Ignorantia public 
 legis neminem excusat. And this is as applicable to public statutes, 
 statutes as to the general principles of law, civil and 
 criminal. But a private Act of Parliament is not pre- 
 sumed to be known. In order to bind there must be actual 
 notice thereof (/). 
 
 (ii.) The registration of an action as a lis pendens is Lis 
 binding on subsequent purchasers, taking its effect from ^^" ^"*"' 
 the service of the writ (g). The -statement of a special 
 case amounts to a lis pendens, and is binding wdien regis- 
 
 {z) Wyllie v. Pollen, sup. (e) In re Marseilles d-c. Co., 7 
 
 (a) Sharpe v. Foy, 4 Ch. 35. Ch. 161. 
 
 (b) Kennedyv.Green,SMy.SiK.699. (/) E. of Pomfret v. Lord Wind- 
 
 (c) Wcddy V. Gray, 20 Eq. 238. sor, 2 Ves. sr. 480 ; sup. pp. 178 et 
 
 (d) Atterbury v. WaUis, 8 De G-. seq. 
 
 M. & G. 4.54 ; Boursot v. Savage, 2 {g) R. S. C, O. II., r. 1 ; P. of 
 
 Eq. 134. Winchester v. Paine, 11 Ves. 1C7.
 
 286 
 
 MORTGAGES AND SALES. 
 
 effect of. 
 
 Registra 
 tion of 
 deeds. 
 
 tered (A). The principle applies as well to dealings of the 
 plaintiff as to those of the defendant. Neither party may- 
 alien the property in dispute to the prejudice of the 
 other (i). It is necessary, however, that some specific 
 claim should have been made in the suit to the particular 
 property in question (/<;). Thus an action for a general account 
 does not bind all the real and personal estate to which it 
 relates {I). A lis pendens, again, does not create a charge or 
 lien upon the property ; it merely puts a purchaser upon 
 an inquiry as to the validity of the plaintiff's claim (m). 
 
 (iii.) It has been seen that the registration of deeds is 
 not constructive notice so as to affect a purchaser taking 
 the legal estate (n) ; but if a purchaser search the register 
 he will be presumed to have notice thereof, unless he can 
 show that the search did not extend to the time of the 
 actual registration (o). Similarl}^ under the former law, 
 judgments were not notice unless a search had actually 
 been made (p). By 23 & 24 Vict. c. 38, it was enacted 
 Vict.c.^38; that no judgment, statute, or recognisance should affect any 
 land as to a bond fide purchaser for value, although with 
 actual notice, unless a writ of execution was issued within 
 three months of the registration; and now, by 27 & 28 Vict. 
 c. 112, no judgment, statute, or recognisance affects any land 
 until such land shall have been actually delivered in execu- 
 tion by virtue of a writ of elegit or other lawful authority. 
 
 Judg- 
 ments. 
 
 23 & 24 
 
 27 &28 
 Vict. c. 
 112. 
 
 General 
 rule. 
 
 II, Defence of Purchase for Value without Notice. 
 A general rule laid down in the important case of 
 
 BASSET V. NOSWORTHY 
 
 [Rep. t. Finch, 102 ; 2 W. & T. L. C. 1] 
 is that equity will give no assistance to the legal title 
 
 [h) R S. C, O. XXXIV. 
 
 {i) Bellamy v. Sabine, 1 De G. & 
 J. 566, 580. 
 
 [k) Holt V. Dewdl, 4 Ha. 446. 
 
 {l) Walker v. Flanutead, 2 Ld. 
 Ken., pt. 2, 57, 59 ; Exp. Thwiiton, 
 2 Ch. 176. 
 
 (m) Bull V. Hutckens, 32 Beav. 615. 
 
 {n) See Bushell v. B., 1 S. & L. 
 103. 
 
 (o) Hodgson v. Dean, 1 S. & S. 
 221. 
 
 (p) Lane V. Jackson, 26 Beav. 
 535.
 
 PURCHASE FOR VALUE WITHOUT NOTICE. 287 
 
 against a bond Jide purchaser without notice of an adverse 
 title. 
 
 Three cases may arise in which a defendant may plead 
 that he is a purchaser for valuable consideration without 
 notice. Either the plaintiff in equity may have an equit- 
 able title, and may seek the assistance of the Court to 
 establish it against a defendant who has secured the legal 
 estate ; or the legal estate may be outstanding, and the 
 parties before the Court set up conflicting equitable in- 
 terests ; or the plaintiff may himself have the legal estate, 
 and may be seeking to add to it the equitable interest as 
 well. 
 
 1. Where the defendant has the legal estate. 
 
 No maxim is better known than that where the equities Where 
 are equal the law shall prevail. Acting in conformity j^as legal 
 with this rule, Courts of equity will uniformly acknowledge estate 
 the defence of a defendant who has the legal estate, and not relieve, 
 who pleads that he is a purchaser for value without notice. 
 It will in such a case refuse to assist the plaintiff, but will 
 leave the parties to the position in which the law places 
 them (r). This may be thus illustrated : — A., the owner 
 of an estate, contracts to sell it to B., and B. pays a part of 
 the purchase-money before the estate is legally conveyed 
 to him. A. then sells the estate to C, who has no know- 
 ledge of the transaction with B. ; C. pays his purchase- 
 money, and the estate is legally conveyed to him. If, then, 
 B. comes into equity to seek to enforce against the estate 
 the lien to which as a purchaser equity would under 
 other circumstances have held him entitled, the relief will 
 be refused to him. It will be held that C. has as good a 
 right in conscience to the full enjoyment of his estate as 
 B. has to security for his prematurely paid purchase-money ; 
 equity, therefore, will refuse to interfere with the advan- 
 tage which he derives from his legal position. 
 
 If the defendant who pleads his bond fide purchase for Legal 
 value without notice has not secured the legal estate at sequently 
 (r) Pitcher v. Ravlins, 7 Ch. 259. acquired.
 
 288 MORTGAGES AND SALES. 
 
 the time of his purchase, but has subsequently acquired it, 
 his plea is equally good ; and this notwithstanding that in 
 the interval between his purchase and his acquiring the 
 legal title he may have had notice of the prior transaction 
 of the plaintiff (s). His own equity being equal to the 
 plaintiff's, he will not be deprived of the advantage which 
 he gains through his superior activity and diligence. In- 
 deed, where his original position in equity has been secured 
 in good faith, the Courts have been little scrupulous to 
 inquire how he has come by the legal estate. Where it 
 was acquired by fraud (t), and where it depended on a 
 forged will(u), it was still considered sufficient to strengthen 
 the equity against a plaintiff. Moreover, a purchaser will 
 not be deemed to have notice of a prior equity merely 
 because he gets the legal estate through an instrument 
 which discloses that equity, if he had no knowledge of 
 such instrument at the time of his purchase (x). Sir W. M. 
 James, L. J., there said : " When once you have arrived at 
 the conclusion that the purchaser is a purchaser for valuable 
 consideration without notice, the Court has no right to ask 
 him how he is going to defend himself, or what he is going 
 to rely on." 
 Legal There is, however, this limitation upon the power of a 
 
 estate no , i • i p i i • • i 
 
 protection purchaser to secure himself by subsequently acquirmg the 
 if acquired jg^al estate : he cannot do so by becoming a party to a 
 
 by a breach " .... 
 
 of trust, breach of trust. Thus it will not avail him to take a con- 
 veyance from a trustee when he has knowledge of the 
 trust. If he does so, he himself becomes a trustee, and the 
 legal estate will be no assistance to him (y). Thus a 
 trustee for successive incumbrancers cannot, by conveying 
 the legal estate to one of them, confer on him priority 
 over the others (z). 
 
 (s) Goleborn v. Alcock, 2 Sim. 552; (x) Pilcher v. Emolins, 7 Ch. 259. 
 
 Blackwood V. London, dr., Bank, 5 (y) Saunders v. Dehew, 2 Vern. 
 
 ].. E. P. C. C. 111. 271 ; Allen v. Kniglit, 5 Ha. 272 ; 
 
 (t) Harcourt v. Knoxvel, cited 2 11 Jur. 527. 
 
 Vern. 159. (2) Collyer v. Finch, 19 Beav. 500 ; 
 
 (w) Jones V. Poivles, 3 My. & K. 581. 5 H. L. 905.
 
 PURCHASE FOR VALUE WITHOUT NOTICE, 289 
 
 Not only where the defendant purchaser has the legal Where 
 estate, but where he has the best right to call for it, equity has best 
 will not grant relief against him. This will be the case "^!^* *° 
 where one of two or more persons who are interested in legal 
 equity has, in addition to the interest which he holds in ®^*^*^- 
 common with the others, a special equity peculiar to him- 
 self — for instance, a particular declaration of trust in his 
 favour (a). 
 
 Where, moreover, there are circumstances which give ^^™^ "^® 
 
 ... •11/. -11 where the 
 
 rise to a mere equity as distinguished from an equitable plaintiff 
 estate — as, for example, to set aside a deed for fraud, or to ^^^^^'^^ ^ 
 
 > IT ' ' mere 
 
 correct a mistake — and the purchaser under the instrument equity. 
 maintains the plea of purchase for valuable consideration 
 without notice, the Court will not interfere against him (h). 
 
 2. Where the legal estate is outstanding. 
 
 Where the legal estate is outstanding, another maxim is wtere 
 
 1- 11 ^ • . • • rrn legal estate 
 
 applicable — Qui prior est tempore i^ot^or est jure. Thus is out- 
 the defence of a purchase for value without notice will not *^*^^"'^}i"g' 
 
 ^ priority 
 
 avail against a prior equitable incumbrancer. It is a well deter- 
 known principle, elsewhere fully expounded (c), that a third ^^"g_ ^ 
 mortgagee Avho lent his money without notice of the 
 second mortgage may gain priority over that incumbrance 
 by buying in the first mortgage with the legal estate. 
 But no such priority would be gained if the first was a 
 merely equitable mortgage (fZ). 
 
 Where, however, a fund is in Court, or the legal estate is l^und in 
 outstanding in a trustee, and the estate is claimed by legai estate 
 several adverse but innocent purchasers for value without "^ trustee, 
 notice, the Court will declare the right to the fund, will 
 make a decree against some one or more of the purchasers 
 for value, and will then, to give effect to its decree, order 
 the delivery up of the title deeds to the person held to 
 have the best title (e). 
 
 («) WiUourjhhy V. W., 1 T. R. (d) Phillips v. P., sup.; Brace v. 
 
 763 ; Wilmot v. Pike, 5 Ha. 14. D. of MarJhorough, 2 P. Wins. 491. 
 
 {h) Phillips V. P., 4 De G. F. & J. (c) Slackhouse v. C. of Jersey, 1 
 
 208 ; Sturge v. Starr, 2 My. & K. J. & H. 721 ; Newton v. N., 4 Ch. 
 
 195. 144. 
 
 (r) Svp. pp. 245, et seq, 
 
 U
 
 290 
 
 MORTGAGES AND SALES. 
 
 Trustee 
 making 
 good one 
 breach of 
 trust by 
 another. 
 
 Where th( 
 plaintiff 
 had legal 
 estate, 
 
 and ap- 
 pealed to 
 auxiliary 
 jurisdic- 
 tion, 
 Court 
 would not 
 assist hina. 
 
 Secus 
 where he 
 appealed 
 
 Where a trustee has committed a breach of trust, and 
 has afterwards made that default good by applying another 
 trust fund for that purpose, the Court will not deprive the 
 first cestuis que trusts of the fund thus placed at their 
 disposal at the expense of the cestuis que trusts of the 
 second fund. The former are considered as purchasers for 
 value without notice, and so entitled to protection (/). 
 
 8. Where the idaintiff has the legal estate. 
 
 Previous to the Judicature Act {g), when a plaintiff who 
 had the legal estate sought the assistance of equity to 
 perfect his interest, and the defendant pleaded a bond fide 
 purchase for value without notice, a distinction was taken 
 according to the nature of the relief which he asked. 
 
 It might be that, as in Basset v. Nosworthy (h), he desired 
 to obtain from the defendant discovery of some instrument 
 relating to the title, or some similar assistance which could 
 not be aiforded to him by a Court of law. In other words, 
 his application might be to the auxiliar 7/ jurisdiction of 
 the Court. Or, on the other hand, the plaintiff might sue 
 in equity in a matter in which the Court of Chancery 
 exercised a legal jurisdiction concurrently with the Courts 
 of law. 
 
 In the former case it was well established that if the 
 defendant successfully maintained a plea of purchase for 
 value without notice, equity would not assist the plaintiff 
 against him (i). It mattered not that the plaintiff was 
 actually in possession of the property under a legal title (k), 
 or whether the property in question was legal or personal 
 estate (l). The reasoning was that the defendant had an 
 equal claim with the plaintiff in equity, and that equity 
 would therefore not interfere with his rights. 
 
 In the latter case, however, it was held that the same 
 plea would not avail. Where a widow filed a bill claiming 
 
 (/) Thorndijke v. Hunt, 3 De G. 
 
 J. 563. 
 
 {</) 36 & 37 Vict. c. G6. 
 
 (/t) Sujx p. 286. 
 
 (*) H-ida-fe v. Cooke, Freem. 24 ; 
 
 Jcrrard v. Saandifs, '2 Ves. 454. 
 
 (A-) Wallwi/n v. Lee, 9 Ves. 24 ; 
 Joyce V. Be Moleyns, 2 J. & L. 874. 
 
 (I) Danson v. Prince, 2 De G. 
 & J. 41.
 
 PURCHASK FOK VALUE WITHOUT NOTICE. 291 
 
 dower against a purchaser for value without notice from *o t^® con- 
 
 CHITCIlfi 
 
 her husband, the plea of the purchase was overruled (m) ; jurisdic- 
 and the same was the case in a bill for tithes {71) ; the true *^°°" 
 ground for the decisions being that the Court was not there 
 asked to give to the plaintiff any equitable as distinguished 
 from legal relief (0). 
 
 The case of a legal mortgagee seeking foreclosure was Legal 
 in some respects exceptional. It was held that he was ^eking^^^ 
 entitled to a decree Si^ainst a, bond Jide purchaser, notwith- foreclosure 
 standing that the latter had advanced his money without relief, 
 notice of the prior incumbrance ('p). In this case the plaintiff 
 seeks an equitable remedy attached to his legal right, with 
 respect to which he cannot be told to seek his remedy at 
 law ; so that his position differs from that of a plaintiff 
 who through the medium of a Court of equity seeks to 
 enforce a legal claim. But though he might get his fore- 
 closure decree, it was held that he was not entitled at the 
 same time to an order for the delivery of title deeds, as to 
 which the defence would avail just as if a suit had been 
 instituted for that purpose alone (q). And for the same 
 reason the Court would not decree a sale instead of a 
 foreclosure, under 15 & 16 Vict. c. 8(5, since the com- 
 pletion of the sale would involve a surrender of the title 
 deeds, which the Court would not insist on (r). 
 
 But by the Judicature Act (s) every Court can now Effect of 
 enforce both legal and equitable claims (t), and recognise jsTS e. 24 
 equitable defences (u). There is, therefore, no longer any ^^^-s- ^• 
 distinction between the auxiliary and the concurrent juris- 
 diction of the Courts of equity; and the same reasoning 
 which applied to WilliaTns Y.Lamhe and CollinsY. Archer 
 would now apply to such cases as Basset v. Nosivovthy 
 and Wallwyn v. Lee. It does not seem to have been 
 
 {vi) Williams v. Lamb, 3 Bro. C. 500. 
 C. 264. (fy) Heath v. Crcalock, 10 Ch. 22. 
 
 (n) Collins V. Archer, 1 R. & M. (r) Wakhj v. Gray, 20 Eq. 238. 
 
 284. (s) 36 & 37 Vict. c. 66. 
 
 (o) Phillips V. P.. 4 De G. F. & J. (t) S. 24, sub-s. 6. 
 
 208, 217. [v.) Sub-s. 2. 
 
 [p) Finch V. lihau; 19 Beav. 
 
 u 2
 
 292 MORTGAGES AND SALES. 
 
 decided that this enactment has the effect of requiring the 
 Courts now to consider on their merits all cases in which 
 this defence is raised ; but this will probably be the result. 
 Formerly, in cases where discovery was sought, equity 
 declined to assist the plaintiff on the ground that he had 
 his remedy at law, and that it would not add its relief to 
 this remedy against a hond fide purchaser. Now the 
 plaintiff may insist on his legal remedy in the same Court 
 and at the same time that he seeks his equitable relief, 
 and to allow the defence of a ho7id fide purchase to bar 
 him would be to deprive him of an acknowledged legal 
 right (oc). 
 
 4. Mode of raising the defence. 
 
 Form_ of Previous to the Judicature Acts (y) the defence of being 
 a purchaser for value without notice was raised by plea. 
 Now the form of pleading is different. If the statement of 
 claim shows that the defendant is a purchaser for value 
 without notice, the defendant may now, it would seem, 
 object by demurrer. If, however, as will almost always be 
 the case, the statement of claim does not so admit the 
 defendant's position, his course will be to plead it by 
 statement of defence. But whatever deeds he purports to 
 set forth in his pleading he may be required to produce 
 for the inspection of the plaintiff, who has a right to see 
 whether they are correctly stated (0). 
 
 5. Where a bond fide purchaser is plaintiff. 
 
 The pur- In some cases equity will allow more than a merely 
 mrvTome- iiGgative force to the position of a bond fide purchaser for 
 times come value. It wiU Suffer him to come as a plaintiff to seek the 
 ' delivery up and cancellation of documents which stand in 
 the way of his complete security. Thus sleeping mort- 
 gages or incumbrances, under which no claim has been made 
 for a long time, will be vacated in his favour (a). 
 
 (x) Coote, 864. 2 De G. F. & J. 578. 
 
 (y) 36 & 37 Vict. c. 66 ; 38 & 39 (a) Eutter v. Bartley, Toth. 160 ; 
 
 Vict. c. 77. Ahdy v. Lovcday, Rep. t. Finch, 
 
 (z) Hunt V. Elwes, 27 Beav. 62 ; 250.
 
 APPLICATION OF PURCHASE-MONEY. 293 
 
 III. Liability of Purchasers for Aijplication of Purchase- 
 Money. 
 
 Since the decision in 
 
 ELLIOT V. MERRYMAN, 
 
 [2 Atk. 4 ; 1 W. & T. L. C. 64,] 
 
 which has always been quoted as a leading authority on 
 the liability of purchasers from trustees to see to the 
 application of the purchase-money, the whole law on the 
 subject has been put on a different footing by the statutes 
 to be presently referred to. These statutes, however, 
 being of comparatively recent date, and not retrospective, 
 there still occur many cases to which the old law is applic- 
 able. It is, therefore, necessary to consider first the 
 principles applied by Courts of equity in cases where the 
 statutes are not applicable ; secondly, the operation of the 
 statutes. 
 
 1. As to personal property. 
 
 (1.) However personal estate may be bequeathed, it 
 must be applied in the first place by the executors or 
 administrators for payment of the testator's debts, in a due 
 course of administration. The general rule is abundantly Purchaser 
 established that a person who purchases or takes a mort- goi^ity not 
 gage of leaseholds or other personalty from an executor or ?eueraUy 
 administrator is not bound to see to the application of the 
 purchase or mortgage money. The sale or mortgage of a 
 chattel by an executor will be good against both the resi- 
 duary and pecuniary legatees, as well as against the 
 creditors of the testator. Their remedy, in case of the 
 misapplication of the money by the executor, would be not 
 against the purchaser or mortgagee, but against the execu- 
 tor himself ; neither notice of the will, nor of the bequest Notice im- 
 contained therein, would be prejudicial to the purchaser or 
 mortgagee (6). And the fact that a mortgage of part of 
 
 (6) Ewer v. Corhctt, 2 P. Wms. C. C. 125. 
 148 ; Andreio v. Wriglcy, 4 Bro.
 
 294 
 
 MORTGAGES AND SALES. 
 
 So a 
 banker 
 may pay 
 cheques of 
 executor. 
 
 Excep- 
 tions : 
 1. Where 
 there is a 
 particular 
 trust of 
 personalty, 
 
 2. Where 
 purchaser 
 is party to 
 a fraud, 
 which may 
 be inferred 
 from cir- 
 cum- 
 stances. 
 
 Acquies- 
 cence by 
 legatees 
 and 
 creditors. 
 
 the assets has been made to secure a debt originally con- 
 tracted on the personal security of the executor, and with- 
 out reference to the assets, is immaterial (d). 
 
 Upon the same principle as that applicable to sales by 
 executors, a banker will not be held liable for paying the 
 cheque of an executor who banks with him, and who mis- 
 applies the money ; unless the banker is cognisant of an 
 intended misapplication amounting to a breach of trust (e). 
 
 (2.) The Master of the Rolls, in Elliot v. Merryman (/), 
 recognised two exceptions from the general rules. First, 
 the personal estate may be clothed with such a particular 
 trust that the Court may require a purchaser thereof to 
 see the money rightly applied. See also Bonney v. 
 Ridgard (g). 
 
 Secondly, where there is fraud on the part of a pur- 
 chaser or mortgagee he remains answerable. Fraud may 
 be inferred from circumstances ; for instance, where an 
 executor disposes of or pledges his testator's assets in 
 payment of, or as security for, his own debt. In such a 
 case the purchaser or pledgee would take subject to the 
 claims of creditors, and also of the specific and general 
 legatees of the testator (h). In the absence, however, of 
 a fraud or collusion, or of knowledge on the part of the 
 assignee that the debts of the testator were not all paid, 
 the assignment by an executor as a security for his own 
 debt of a chattel specifically bequeathed to him would be 
 good (i). Sale at an undervalue may suffice to raise a pre- 
 sumption of collusion, so as to render a purchaser liable (A;). 
 On the other hand, length of time and acquiescence will 
 prevent creditors and legatees from asserting their claim 
 against purchasers ; and the fact of the legacies being contin- 
 gent would be no sufficient excuse for the legatees lying by, 
 
 {d) Miles V. Durnford, 2 De G. 
 M. & G. 641. 
 
 (f) Gray v. Johnston, 3 L. R. H. 
 L. 1. 
 
 (/) 2 Atk. 4. 
 
 (g) 4 Bro. C. C. 140. 
 
 (h) Hill V. Simpson, 7 Ves. 152. 
 
 (i) Taylor v. Ilatckins, 8 Ves. 
 209 ; Crane v. Drake, 2 Vern. 616. 
 
 {k) Ewer v. Corbet, 2 P. Wms. 
 148; Scott V. Tyler, 2 Dick. 725.
 
 APPLICATION OF PURCHASE-MONEY. 295 
 
 if they had such an interest as entitled them to know what 
 debts the testator owed, and what part of his estate had 
 been applied in payment of them (I). 
 
 2. As to real property. 
 
 (1.) Land devised on trust for sale for payment of T-ami 
 
 J devised for 
 
 debts, &C. pavnient 
 
 At law trustees in whom real property was vested ^^ debts. 
 could of course give a valid discharge for the purchase- ^^.w and 
 money. But the persons amongst whom the produce of equity. 
 the sale was to be distributed being considered in equity 
 the owners, Courts of equity held that a purchaser must 
 obtain a discharge from them, unless the power of giving 
 receipts was either expressly or by implication given to 
 the trustees. And if no such discharge was given, and 
 the trustees had no power to give receipts, the estate, 
 upon a misapplication of the purchase-money, remained 
 chargeable in the hands of the purchaser. 
 
 Where a power of giving receipts was in express terms Where 
 conferred upon trustees, the purchaser was not, in the power to 
 absence of fraud or collusion, bound to see to the applica- »^^®. , 
 
 ' J- ■*■ _ receipts 
 
 tion of the purchase-money. If no such power was given provided, 
 in express terms, there was frequent difficulty in deter- 
 mining whether such a power could be implied. 
 
 As to this, one of the rules laid down in Elliot v. Power, 
 
 when 
 
 Merry man (m), and which was invariably followed, was implied. 
 that if the testator directed lands to be sold for the payment 
 of certain debts, mentioning in particular to whom those 
 debts were owing, the purchaser was bound to see that the 
 money was applied for the payment of those debts. And Not in case 
 the same rule was applicable where there was a trust for (ii,]ea 
 payment of legacies or annuities, which from their nature <lebt« and 
 
 . . 1 1111 legacies. 
 
 were placed on the same footing as specified or scheduled 
 debts (n). In cases coming within this rule, the trusts 
 being of a limited and definite nature, and such as a 
 
 (?) Andrew v. Wrlyley, 4 Bro. (h) Johnson v. Kennett, 3 My. & 
 
 C. C. 135. K. Q-li, 630 ; Horn v. H., 2 S. & S. 
 
 (m) 2 Atk. 4. 148.
 
 296 MORTGAGES AND SALES. 
 
 purchaser might without inconvenience see properly per- 
 formed, a power to give receipts could not be implied. 
 But other- Another rule was that if the testator directed the land to 
 trust was ^6 sold for the payment of debts generally, the purchaser 
 for pay- -^r^g jiot bound to soo the money risfhtly applied. In such 
 
 ment of . tiip i 
 
 debts cases it was esteemed that the trust was oi too general 
 
 generally ; ^^^ unlimited a nature to be undertaken by a purchaser ; 
 
 and it was therefore held that an implied power was 
 
 bestowed on the trustees to give receipts in full discharge 
 
 for the purchase- money. 
 
 though jf tj-je trust included at the same time the payment of 
 
 followed . . . P 1 , 1 
 
 by trust to legacies and annuities and the payment oi debts, the 
 P^y . latter principle was clearly the one to be applied, since it 
 
 legacies. r r j sri ' 
 
 was only after the execution of the general trust to pay 
 
 debts that the limited trust to pay legacies would arise. 
 
 The purchaser's position, therefore, would be just the same 
 
 as in a general trust for pa3anent of debts only (o). 
 
 Annuities 111 some cascs it was sought to distinguish annuities from 
 
 euishable' legacies {p), but neither on principle or authority could 
 
 from such a distiucton be supported. And if there was a 
 
 general charge of debts it was held immaterial that one 
 
 Immate- particular debt was mentioned {q). And, again, where 
 
 rial that there was a trust for payment of debts generally and 
 
 debts have _ ■"■ -^ . 
 
 in fact also legacies, a purchaser, even after the debts had in fact 
 
 en paic , j^ggj^ paid, was held not liable to see to the application 
 
 of the purchase-money in payment of the legacies (r). 
 
 Lord Lyndhurst in so deciding pointed out that the 
 
 rule had reference to the state of things at the death of 
 
 or that the testator (s). Suppose, then, there were no debts when 
 
 no^debts. ^^^ testator died. Lord St. Leonards considered this in 
 
 Stroughill v. Anstey (t), and said that all these cases 
 
 must stand on one of two grounds — either that there were 
 
 no debts within the knowledge of the purchaser (and then it 
 
 (o) Johnson v. Kennett, 3 My. & 592 ; 5 De G. M. & G. 272. 
 K. 624 ; Page v. Adam, 4 Beav. 269. (r) Johnson v. Kennett, sup. 
 
 (jy) Johnson v. Kennett, sup.; (s) See also Forbes v. Peacock, 1 
 
 Eland v. E., 1 Beav. 235. Ph. 717. 
 
 (9) Robinson v. Lowatcr, 17 Beav. (t) 1 De G. M. & G. 635.
 
 APPLICATION OF PURCHASE-MONEY. 297 
 
 was indifferent whether there were no debts at the death 
 of the testator or no debts at the time of the purchase), 
 or (which was more satisfactory and open to no ambiguity) 
 on the ground that when a testator by his will charged his 
 estate with debts and leofacies, he showed that he meant 
 to entrust his trustees with the power of receiving the 
 money, anticipating that there would be debts, and thus 
 providing for the payment of them. It was by implica- 
 tion a declaration by the testator that he intended to 
 entrust the trustees with the receipt and application of 
 the money, and not to throw any obligation at all upon 
 the purchaser or mortgagee. That intention did not cease 
 because there were no debts. Basing the principle, there- 
 fore, not on this or that state of facts, but on the indica- 
 tion afforded of the testator's intention, his lordship 
 decided that whenever there was a trust for the payment 
 of debts generally and legacies, a purchaser or mortgagee 
 was under no obligation to see to the application of the 
 money raised. This enunciation of the principle recom- 
 mends itself by its simplicity and certainty in application. 
 
 AlthouGfh there was no trust for the general payment Direction 
 
 nil ? Ill 1 • i-ii- 1- to sell at 
 
 01 debts, it would have been implied that it was the m- jjarticuiar 
 tention of the settlor or testator to confer upon the trustees *^°^®' 
 a power to give receipts, if they Avere directed to sell at 
 a time when the persons amongst whom they were to dis- 
 tribute the proceeds of the sale were either not ascer- 
 tainable or not of age (u), and it was not deemed material 
 that the objects of the trust might have been actually 
 ascertained before the sale. The deed must receive its 
 construction as from the moment of its execution. The 
 purchasers not having been originally liable could not be 
 made so by any subsequent event {x). If, however, an 
 estate was charged with a sum of money payable to an 
 infant on his attaining his majority, the purchaser was 
 bound to see the money duly paid (y). 
 
 (u) Bcdfour V. Wclland, 16 Ves. (x) Groom v. Booth, 1 Drew, 548. 
 
 1.51. (y) Dickenson v. I)., 3 Bro. C. C. 1 9.
 
 298 
 
 MORTGAGES AND SALES. 
 
 or trusts 
 
 declared 
 
 iiiVdlving 
 
 personal 
 
 discretion. 
 
 Purchaser 
 not bound 
 to inquire 
 whetiier 
 sale was 
 necessary, 
 
 unless 
 power to 
 sell only 
 arose on 
 deficiency. 
 
 Land 
 
 charged 
 with debts: 
 same rules 
 apply. 
 
 Where money to arise from a sale was not merely to be 
 paid to certain persons, but was to be applied by the 
 trustees upon trusts requiring care and discretion, the 
 presumption was that the settlor intended to confide 
 the execution of the trust to the trustees solely, and the 
 purchaser was not then bound to see to the application 
 of the purchase-money (z). 
 
 A purchaser was not bound to ascertain how much land 
 it was necessary to sell for payment of the debts (a). 
 And where lands were devised to trustees upon trust to 
 raise so much money as the personal estate should fall 
 deficient in paying the testator's debts and legacies, a pur- 
 chaser was not bound to inquire whether the real estate 
 was wanted or not. Seciis, however, if the trustees had 
 merely a power to raise money upon the deficiency of the 
 personal estate, for then, unless there was a deficiency the 
 power never arose, and consequently the purchaser could 
 take no estate by the supposed execution of it (h). 
 
 (2.) Land devised charged with debts, &c. 
 
 It was laid down in Elliot v. MerryTnan (c) that the 
 rules as to a purchaser's liability were the same where land 
 was devised charged with debts or legacies, or both, as 
 where it was devised expressly upon trust for these 
 purposes, the charge being considered equivalent to a 
 trust {d). The authorities already mentioned as referring 
 to one case may, therefore, generally be considered as also 
 ilhistrating the other. There are, however, certain matters 
 particularly relating to such charges which require separate 
 consideration. Prominent among these is the question 
 whether a charge of debts authorised a sale of real estate 
 by executors. 
 
 It was laid down by Sir L. Shadwell, V.C., in Forbes v. 
 Peacock (c), that if a testator charged his real estate with 
 
 (2) Doran v. WiUshlrc, 6 Swanst. 
 699. 
 
 (a) Sjxddinf/ v. Shalmer, 1 Vern. 
 303. 
 
 (h) Cvlpeppcr v. Aston, 2 Ch. Ca. 
 115 ; Bird v. Fox, 11 Ha. 40. 
 
 (c) 2 Atk. 4. 
 
 (f^) See also Jenkins v. Ililcs, 6 
 Ves. 654, note ; Page v. Adam, 4 
 Beav. 269 ; Shaw v. Borrcr, 1 Kee. 
 559. 
 
 (e) 12 Sim. 528, 541.
 
 APPLICATION OF PURCHASE-MONEY, 299 
 
 payment of his debts, that, primd facie, gave the executor Whether it 
 power to sell the real estate, and to give the purchaser a power of 
 good discharge for the purchase-money. This was sus- ^^^^ *" 
 
 tixticutors 
 
 tained to a certain extent in Shaiu v. Borrer (/) and in 
 Ball V, Harris (g), but it has been questioned whether 
 such a charge conferred a legal power to sell, and whether, 
 in consequence, a defendant in a suit for specific perform- 
 ance ought to be compelled to complete the purchase with- 
 out a conveyance from the heir-at-law (/<-). The decisions 
 on this point have been somewhat conflicting (i). The Equitable 
 conclusion to be drawn from them seems to be that where leo-ai. 
 there was a general charge of debts upon real estate the 
 executors had in equity an implied power to sell it, and 
 they alone could give a valid receipt for the purchase- 
 money ; but that they did not take by implication a legal 
 power to sell, and could not, therefore, convey the legal 
 estate, it being necessary to complete the purchaser's title 
 that the persons in whom it was vested (if not already in 
 the executors by devise or otherwise) should concur in the 
 conveyance (k). 
 
 Real estate in the hands of an alienee of a devisee or Where no 
 heir-at-law, where there had been no charge of debts, was lands^' 
 discharged from the debts, the heir or devisee alone remain- exempt in 
 ing personally liable (l). But a mere conveyance to new alienee 
 trustees was not such an alienation as would have pre- ^'"°? ¥^'' 
 
 -,. , . ^ or devisee. 
 
 vented the interest so aliened from being affected by an 
 execution at the suit of the devisor's creditors (m). 
 
 Where, however, there luas a charge of debts upon real Secus 
 estate, a purchaser from the heir or devisee, or their alienee, deMTwere 
 could not safely complete without either the concurrence charged. 
 of the executors or without being satisfied that all the 
 debts had been paid (n). The general opinion seems to 
 
 (/) Sup. H. 303, 309. 
 
 (g) 4 My. & Or. 264. (I) Richardson v. Ilorton, 7 Beav 
 
 (k) GosUmj V. Carter, 1 Coll. 644. 112. 
 
 {i) Doe. d. Jones V. Huijhcs, 6 ^xcli. (in) Coojk v. CresivcU, 2 Ch. 112, 
 
 223 ; Robinson v. Lowater, 17 Beav. 122. 
 532 ; Wrigley v. Sykes, 21 Beav. 337. (») Storry v. Wnlsh, 18 Beav. 559. 
 
 {I) Hodkinson v. Quinn, 1 J. &
 
 300 
 
 MORTGAGES AND SALES. 
 
 Purchaser 
 always 
 liable if 
 party to a 
 breach of 
 trust, 
 
 or has 
 notice of 
 adminis- 
 tration 
 suit. 
 
 have been that where, subject to a charge of debts, an 
 estate was devised to persons either beneficially or as 
 trustees for special purposes, a sale could be effected by 
 them alone. And where there was an express trust for 
 sale at a particular period which had arrived, the trustees 
 could sell without the concurrence of the executors, who 
 might previously have sold under the implied power 
 arising from a general charge of debts (o). 
 
 The rule that a purchaser was not bound when the debts 
 were charged generally, was subject to the obvious excep- 
 tion that if he was a party to a breach of trust he would 
 receive no protection ; for instance, where a devisee, having 
 a right to sell, sold to pay his own debt, and the purchaser 
 had notice of these facts (p). The fact, however, that an 
 executor who was also devisee mortgaged his private 
 property, together with property devised to him charged 
 with payment of debts, would not have raised a presump- 
 tion against him that he was not acting in the ordinary 
 discharge of his duty as executor. Where trustees, 
 instead of selling under a power in a will, raised money by 
 mortgage in a manner not authorised by the power, many 
 years after the testator's death, the mortgagee being party 
 to a breach of trust, his security was invalid (q) ; but the 
 mortsfagee in such a case was entitled to stand as a creditor 
 in respect of the produce of the estates, to the extent to 
 which the mortgage money was rightly applied (r). 
 
 Another exception was where the purchaser had notice 
 of a suit having been instituted which took the administra- 
 tion of the estate out of the trustees' hands (s). 
 
 3. Statutory modifications of the principles. 
 
 It now remains to consider how these principles, which 
 rested on the decisions of the Courts, have been affected by 
 statutory enactments. 
 
 (o) Hodklnson v. Quinn, 1 J. & 
 H. 303. 
 
 (p) Eland v. E., 4 My. & Cr. 427. 
 (q) Strowjhill V. Anstcy, 1 De G. 
 
 M. & G. 635. 
 
 (r) Dcvayncs v. Rohinson, 24 Beav. 
 86. 
 
 (a) Lloijd V. Baldwin, 1 Vcs. 173.
 
 APPLICATION OF PURCHASE-MONEY. 301 
 
 (1.) As to purchasers' liability. -^^ *f 
 
 • T-. o TT hT • purchasers 
 
 1. By 7 & 8 Vict. c. 7G, s. 10, it was enacted that the liability. 
 bond fide pa3nnent to and receipt of any person to whom ^ ^^^ 
 any money should be payable upon any express or implied 
 trust, or for any limited purpose, should effectually dis- 
 charge the person paying the same from seeing to the 
 application, or being answerable for the misapplication 
 thereof, unless the contrary should be expressly declared 
 by the instrument creating the trust or security. This Act, 
 however, only remained in operation from December 31st, 8 & 9 Vict 
 1844, to October 1st, 184.5, it having been repealed by 
 8 & 9 Vict. c. 106. It therefore affects only such wills, &c., 
 as were executed between these two dates. 
 
 ii. The law is now chiefly regulated by the provisions 
 in this respect of Lord St. Leonards* Act {t), which was 22 & 23 
 passed and came into operation on August 13th, 1859. ^°*- ''^ ^^• 
 By sect. 23 of this Act it is enacted " that the bond fide s- 23. 
 payment to, and the receipt of, any person to whom any 
 purchase or mortgage money 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 instrument creat- 
 ing the trust or security." It seems the better opinion that 
 this clause applies only to trusts created since the Act(?<-). 
 
 iii. A more comprehensive power, in that it is not con- 23 & 24 
 fined to purchase or mortgage money, was given by Lord 145 g^gg. 
 Cranworth's Act {x), which enacted that the receipts in 
 writing of any trustees or trustee for any money payable 
 to theTYi or him by reason or in the exercise of any trusts 
 or powers reposed or vested in them or him, should be 
 sufficient discharges for the money therein expressed to be 
 received, and should effectually exonerate the persons paying 
 such money from seeing to the application thereof, or from 
 being answerable for any loss or misapplication thereof." 
 
 (t) 22 & 23 Vict. c. 35. (x) 23 & 24 Vict. c. 145, s. 29. 
 
 (11) Lewin, 7 ed. 270.
 
 302 MORTGAGES AND SALF'^S. 
 
 s. 34. gy ggpj^ 34 Qf ^}^jg same Act, its operation was expressly 
 
 declared to be not retrospective. It therefore extended only 
 to persons entitled or acting under a deed, will, codicil, or 
 other instrument executed after the 28th of August, 18G0, 
 or under a will or codicil confirmed or revived by a codicil 
 executed after that date. 
 44 & 45 This is now replaced by a still more comprehensive 
 
 s. '36*^' ' section in the Conveyancing and Law of Property Act, 
 1881, which extends the power to any securities, or other 
 personal property or effects payable, transferable or 
 deliverable to any trustees or trustee (x). 
 (2.) As to the power of sale. 
 As to Lord St. Leonards' Act also contains important pro- 
 
 salT"" ^ visions respecting the powers of trustees and executors to 
 
 sell, in various circumstances. Thus, 
 22 & 23 Sect. 14 provides that " Where by any will which shall 
 
 s ^ll' ^' come into operation after the passing of this Act the testator 
 shall have charged his real estate or any specific portion 
 thereof with the payments of his debts, or with the pay- 
 ment of any legacy or other specific sum of money, and 
 shall have devised the estate so charged for the whole of 
 his estate and interest therein, and shall not have made 
 any express provision for the raising of such debt, legacy, 
 or sum of money out of such estate, it shall be lawful for 
 the said devisee or devisees in trust, notwithstanding any 
 trusts actually declared by the testator, to raise such debts, 
 legacy, or money as aforesaid by a sale and absolute dispo- 
 sition by public auction or private contract of the said here- 
 ditaments or any part thereof, or by a mortgage of the 
 same, or partly in one mode and partly in the other; 
 and any deed or deeds of mortgage so executed may 
 reserve such rate of interest, and fix such period or periods 
 of repayment, as the person or persons executing the same 
 shall think proper." This, it will be observed, disposes of 
 the difficulty which caused so much discussion in Doe v. 
 Hughes and Rohinson v. Lovater (y). 
 
 {x) 44 & 45 Vict. c. 41, s, 36. (//) Svpra, p. 299.
 
 APPLICATION OF PURCHASE-MONEY. 803 
 
 Sect. 1 5 provides that " The powers conferred by the last ^- l^- 
 section shall extend to all and every person or persons in 
 whom the estate devised shall for the time being be vested 
 by survivorship, descent, or devise, or to any person or 
 persons who may be appointed under any power in the 
 will, or by the Court of Chancery, to succeed to the trustee- 
 ship vested in such devisee or devisees in trust as afore- 
 said." 
 
 Sect. 16 confers a similar power of sale in the circum- s- 16. 
 stance therein mentioned on executors. It enacts that 
 " If any testator who shall have created such a charge as is 
 described in the 14th section shall not have devised the 
 hereditaments charged as aforesaid in such terms as that 
 his whole estate and interest therein shall become vested 
 in any trustee or trustees, the executor or exec^itors for the 
 time being named in such will (if any) shall have the 
 same or the like power of raising the said monies as is 
 hereinbefore vested in the devisee or devisees in trust of 
 the said hereditaments, and such power shall from time 
 to time devolve to and become vested in the person or 
 persons (if any) in whom the executorship shall for the 
 time being be vested ; but any sale or mortgage under this 
 Act shall operate only on the estate and interest, whether 
 legal or equitable, of the testator, and shall not render it 
 unnecessary to get in any outstanding subsisting legal 
 estate." 
 
 It will be observed that this section does not entrust 
 any such power to an administrator. 
 
 By sect. 17 purchasers and mortgagees are declared not s. 17. 
 to "be bound to inquire whether the powers conferred by 
 sections 14, 15, and 16 of this Act, or either of them, shall 
 have been duly and correctly exercised by the person or 
 persons acting in virtue thereof." 
 
 Sect. 18 provides that "The provisions contained in sects, s. 18. 
 14, 15, and 16 shall not in any way prejudice or affect any 
 sale or mortgage already made or hereafter to be made 
 under or in pursuance of any will coming into operation
 
 304 MOETGAGES AND SALES. 
 
 before the passing of this Act, but the validity of any such 
 sale or niortfrawe shall be ascertaiuud and determined in all 
 respects as if this Act had not passed ; and the said several 
 sections shall not extend to a devise to any person or per- 
 sons in fee or in tail, or for the testator's whole estate and 
 interest charged with debts or legacies, nor shall they affect 
 the power of any such devisee or devisees to sell or mort- 
 gage as he or they may by law now do." 
 
 To make this section consistent with sect. 14 the 
 "devise" referred to therein must mean a beneficial 
 devise ; and " devisee or devisees," beneficial devisee or 
 devisees ; and the inference would seem to be that, in the 
 view of the frarner of the Act, no legislative assistance was 
 needed in the case of a beneficial devise subject to a 
 charge. Indeed the concluding words of the section are 
 tantamount to a declaration of the legislature that bene- 
 ficial devisees subject to a charge have power to sell or 
 mortgage (z). 
 General The general effect of the statute may thus be summed 
 
 effect of . 
 
 the statute, np : — It has removed the difficulty created by the decisions 
 in two cases : 1st, by giving a devisee of the fee, who is a 
 trustee for totally foreign purposes, a power to sell or mort- 
 gage for the satisfaction of the charge of debts ; and, 
 2ndly, by giving the executor a power to sell or mortgage 
 when the estate is cut up by successive limitations without 
 the intervention of a trustee of the legal fee. But in cases 
 where the testator died before the 13th of August, 1859, 
 or where there is a devise, subject to a charge of debts, to 
 a beneficial owner in fee or in tail, or for all other the 
 testator's interest in the estate, the Act leaves this question 
 in the same doubt and perplexity as before. No testator, 
 then, ought to create a charge of debts upon his real estate 
 without at the same time expressly creating a trust or 
 power for giving effect to the charge, and distinctly point- 
 ing out the persons by whom the trust or power is to be 
 exercised. 
 
 (c) Lewin, 7 ed. 421.
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 305 
 
 IV. Assignment of Possibilities and Glioses in Action. 
 
 1. It was an ancient and well established principle of com- Possibili- 
 mon law that no possibility, right, title, nor thing in action choserin 
 could be granted or assigned to strangers (a) ; and accord- action not 
 ingly, if there was what purported to be an assignment of at law. 
 such interests, the assignee could not sue at law for them in 
 his own name. 
 
 The necessities of commerce, however, long ago effected Excep- 
 a modification of this principle, even at law. Some choses tomary 
 in action, of which bills of exchange are a type, became ^^<^ 
 
 111 1 1 n • -1 Statutory. 
 
 assignable by custom ; others have from time to time been 
 expressly made so by statute — for instance, promissory 
 notes, by 3 & 4 Anne, c. 9, 7 Anne, c. 25; railway bonds, 
 by 8 & 9 Vict. c. 19; endorsed bills of lading, by 18 & 19 
 Vict. c. Ill; and, as we have elsewhere observed, policies 
 of life and marine assurance, by 30 & 31 Vict. c. 144, 
 and 31 & 32 Vict. c. 86 (b). But in all cases not so 
 provided for, it until recently remained necessary for 
 an assignee suing at law to use the name of the original 
 creditor (c). 
 
 Courts of equity, on the other hand, have been wont Assign- 
 from an early period to recognise the validity of the assign- ^comistd 
 ment of possibilities and choses in action generally ; and in equity. 
 have continually carried such assignments into effect, when 
 made for valuable consideration (cZ). 
 
 We are thus led to the consideration of a striking and 
 fundamental contrast of principles between law and equity, 
 which remains of importance, notwithstanding the pro- 
 visions of the Judicature Act presently quoted. 
 
 First, it will be desirable to cite in detail, by way of 
 illustration, some instances of rights which have been 
 deemed assignable in equity, though not so in law. 
 
 (a) Lampet's Case, 10 Co. 47. Bl. & Ell. 467. 
 
 (6) p. 56. (d) Anon, Freem. 145; S(imh v. 
 
 (c) Dc Pothonier v. Be Mattos, Ell. Wt/n, 1 P. VVms. 381. 
 
 X
 
 306 
 
 MORTGAGES AND SALES. 
 
 Possi- 
 bilities 
 
 Expect- 
 ancies. 
 
 Non- 
 existent 
 property 
 
 Of these there are two principal classes, the first com- 
 prising possibilities ; the second, debts of various kinds. 
 
 (1.) In respect of the former, one of the leading authori- 
 ties is the case of 
 
 WARMSTREY v. TANFIELD. 
 
 [1 Cli. Kep. 29 ; 2 W. & T. L. C. 724.] 
 
 There, one William Freeman, being possessed of the third 
 part of a parsonage for the whole term to come, granted 
 all his interest therein to one Alborough, in ti'ust for the 
 use of the said Freeman and his wife during their lives, and 
 after to the use of such issue male of their bodies as the 
 said Freeman should by will appoint. Freeman appointed 
 the premises after the death of his wife to his son Richard, 
 wlio during the life of his mother assigned the premises to the 
 plaintiff. The defendant claimed under a lease made by the 
 said Richard Freeman two years after the said assignment. 
 
 It was held that though the assignment was of a mere 
 possibility (being dependent on Richard's surviving his 
 mother), and therefore not good in law, yet it was valid in 
 equity, and the plaintiffs claim was allowed, as arising 
 under a deed precedent to that through w^hich the defend- 
 ant claimed. 
 
 (2.) On grounds analogous to this we find equity enforc- 
 ing assignments of mere expectancies, such as that of an 
 heir-at-law (e), or the next of kin of a living person (/), or 
 the interest which a person expects under the will of a living 
 person {g), or the share to which a person may become 
 entitled under an appointment (It). 
 
 (3.) By a somewhat further extension of the same 
 princij^le, non-existent property, or property to be acquired 
 at a future time, has been held assignable in equity ; such 
 as the future cargo of a ship (i), future patent rights {j), 
 machinery yet to be erected {h). 
 
 (e) Hohsonv. Treror,2'P. Wras. 191. 
 (/) Hinde v. Blake, 3 Beav. 235. 
 (fj) Beckley v. Newlund, 2 P. Wms. 
 182. 
 
 (/() Musp'at V. Om-don,! Anst, 34. 
 
 [i] Lindsay v. Gihhs, 22 Beav. 522. 
 
 (j) Printing tt'c. Co. v. Sampson, 
 19 Eq. 462. 
 
 (A) Ilolroyd v. Marshall, 10 H. L. 
 191.
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 807 
 
 (4) The jurisdiction of the Courts of law was extended 8 & 9 Vict. 
 by 8 & 9 Vict. c. 106, by s. 6 of which it was enacted that ' ' ^" " 
 thereafter contingent, executory and future interests and 
 possibilities, coupled ivith an interest in real estate, might 
 be assigned at law by deed. But this Act left untouched 
 assignments of contingent interests in chattels, aud mere 
 naked possibilities not couj^led with an interest. As to 
 such, therefore, equity alone continued to recognise the 
 validity of assigmnents. 
 
 (5.) One of the principal authorities on the assignment Choses in 
 of debts is ^'^t^^"- 
 
 ROW V. DAWS02T. 
 
 [1 Ves. sr. 331 ; 2 W. & T. L. C. 726.] 
 
 In this case Tonson and Conway lent money to Gibson, 
 who gave them a draft in the following terms : " Out of 
 the money due to me from Horace Walpole out of the 
 Exchequer, and what will be due at Michaelmas, j)ay to 
 Tonson and Conway ; value received." Gibson having 
 become bankrupt, the question was whether this draft 
 created a specific lien upon the sum due to his estate. 
 
 Lord Hardwicke distinguished between this draft and a 
 bill of exchange, the draft being not to pay generally, but 
 out of a particular fund, and creating no personal demand ; 
 and he held that there being an agreement for vaUiable 
 consideration beforehand to lend money on the faith of 
 being satisfied out of the fund, the draft was a credit on 
 the fund, and amounted to an assignment of so much of 
 the debt; and that though the law did not admit an 
 assignment of a chose in action, equity did, and that any 
 words would do, no particular form being necessary 
 thereto. 
 
 The first question which arises in cases of this nature is 
 as to what does and what does not amount to a valid equit- 
 able assignment. 
 
 The above case establishes the principle that any words No par- 
 which show an intention to appropriate the chose in action ^^'^^^^^ 
 
 x2
 
 308 
 
 MORTGAGES AND SALES. 
 
 form 
 required. 
 
 Intention 
 must be 
 clear. 
 
 Assign- 
 ment 
 conjplete 
 only on 
 communi- 
 cation to 
 creditor. 
 
 Must be 
 aildressed 
 to debtor. 
 
 to the assignee, are, if supported by valuable consideration, 
 sufficient to eifect a valid assignment. In other words, an 
 agreement between a debtor and a creditor that the debt 
 owing shall be paid out of a specific fund coming to the 
 debtor (I), or an order given by a debtor to his creditor 
 upon a third person, who has funds of the debtor, to pay 
 the creditor out of such funds (rii), will effect a complete 
 assignment in equity of so much money. See also 
 Diploch V. Hammond (n), Lett v. Morris (o). Writing, 
 even, is not necessary, if tliere is clear proof of an oral 
 charge (79). 
 
 The intention to create a charge must, however, be clear. 
 A promise to pay when the debtor receives a debt due 
 to him from a third person is not sufficient (q), nor is a 
 statement that the arrival of a certain cargo would put 
 him in funds (r) ; nor is a cheque or bill of exchange an 
 equitable assignment of the drawer's balance at his 
 bank (s). 
 
 Again, an equitable assignment is not complete until it 
 is communicated to the creditor. Thus a mere mandate 
 from a principal to his agent to pay a debt out of a certain 
 fund gives the creditor no specific charge on that fund (t). 
 Until such mandate is communicated to the creditor, and 
 assented to by him, it may be revoked (u). But after such 
 communication the agent becomes the debtor of the 
 assignee, and the order cannot then be countermanded (v). 
 
 On the other hand, a mere power of attorney^ or autho- 
 rity to a person to receive money, not addressed to the 
 debtor, does not amount to an equitable assignment (*■). 
 
 (I) Rodklc V. Gandell, 1 De G. M. 
 & G. 763, 776. 
 
 (m) Burn v. Carvalho, 4 My. & Cr. 
 702. 
 
 (n) 2 Sm. & G. 141 ; 5 De G. M. 
 & G. 320. 
 
 (0) 4 Sim. 607. 
 
 (p) Gurnell v. Gardner, 7 Jur. N. 
 S. 1220. 
 
 (q) Field V. ilAcyrtw, 4 L. R. C. P. 
 6G0. 
 
 (r) Jones v. Starke;/, 16 Jur. 510. 
 
 (s) Hojil'lnson v. Fwster, 19 Eq. 
 74 ; Shand v. I)u Buisson, 18 Eq. 
 283. 
 
 {t) Mm-ell V. Wooten, 16 Beav. 197. 
 
 («) Scott V. PorcJter, 3 Mer. 652. 
 
 (v) Fitzgerald v. Steicartj^B,. & M. 
 457. 
 
 (x) liodich V. Gandell, stip. ; Bell 
 V. L. (i- N. W. B., 15 Beav. 548.
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 309 
 
 2. Notice, how far required. Notice not. 
 
 11GGQ.GQ. HiS 
 
 (1.) An equitable assignment is complete as between between 
 
 assioiior and assionee, though no notice thereof is given to ^ss^&'^or 
 o o > o o ^ and 
 
 the depositary or holder of the fund (y) ; nor is notice assignee, 
 necessary as against a person standing in the same position 
 as the assignor, such as a judgment creditor (z), or a creditor 
 under a garnishee order (a). Such a creditor will there- 
 fore be postponed to an equitable assignee, notwithstanding 
 that he may have, after the assignment, but before notice 
 to the depositary, obtained an order charging the fund (h). 
 
 (2.) But to complete the security of the assignee, it is But is 
 
 P PI- J.1 J. • required to 
 
 lor many purposes necessary tor nim promptly to give cmpiete 
 notice of the assignment to the holder of the fund. security ; 
 
 First, in the absence of such notice the holder of the otherwise 
 fund may effectually discharge himself by paying the may safely 
 assignor, and if he does so the charge of the assignee will, P^J' 
 
 ° '^ c> assignor, 
 
 of course, be lost (c). 
 
 Secondly, if the assignor make a subsequent assignment ^^ ^"^' 
 
 ^ ° _ . . sequent 
 
 of the debt, and the second assignee gives notice before the incum- 
 first does so, the second thereby gains priority (d), whether jjj^ay'^<^ain 
 the interest of the assignor be present or future, vested or priority, 
 contingent. The principle is the same as that which 
 requires the assignee of a personal chattel to take every 
 step in his power to reduce it into possession, and in case 
 of his neglect postpones him to a subsequent assignee for 
 value, who takes without notice. Of the two parties one 
 must suffer ; and equity will not assist the one prior in time 
 if by his negligence the possessor has been enabled to 
 deceive the second assignee. If, however, the former has 
 done all he could to secure possession, he will not lose 
 his priority (e). If the notices of the assignments are 
 
 {>/) Jones V. Gibbons, 9 Ves. 410 ; J. 633. 
 Cook V. Black, 1 Ha. 390. (c) Norrish v. Marshall, 5 Madd. 
 
 (z) Beavan v. Ld. Oxfm-d, 6 De G. 475. 
 M. & G. 492. (d) Dearie v. Hall, Loveridge v. 
 
 [o) Pickering v. /. R. Co., 3 L. R. Coo^jer, 3 Russ. 1, 30, 48. 
 C. P. 235. (c) Feltham v. Clark, 1 De G. & 
 
 (6) Scott V. Ld. Hastings, 4 K. & Sm. 307.
 
 310 MORTGAGES AND SALES. 
 
 simultaneous they will take priority accoi'ding to their 
 dates (/). 
 Reputed Again, notice is often requisite to protect an assignee 
 in bank- against the effect of the reputed ownership clause of 
 ruptcy. the Bankruptcy Act. Under the present Act {g) all 
 goods and chattels being at the commencement of the 
 bankruptcy in the possession, order or disposition of the 
 bankrupt, being a trader, by the consent and permis- 
 sion of the true owner, of which goods and chattels the 
 bankrupt is reputed owner, or of which he has taken upon 
 himself the sale or disposition as owner, are treated as the 
 property of the bankrupt divisible among his creditors; and 
 debts due to him in the course of his trade or business are 
 deemed goods and chattels (k). 
 
 An assignee of chattels is only protected against this 
 clause by taking every step he can to secure possession. 
 Similarly, an assignee of a chose in action is only secured 
 by giving notice to the debtor of the assignment. Such 
 was the decision in the leading case of 
 
 RYALL V. ROWLES 
 
 [1 Ves. sr. 348; 2 W. & T. L C. 729], 
 
 which is still applicable, mutatis mutandis, to cases under 
 the present Bankruptcy Act ; and the principle thereof has 
 been held to extend to a bankrupt's reversionary interest 
 not falling into possession till after his bankruptcy (i). 
 
 It has been held that it is sufficient protection for the 
 assignee if he gives notice between the act of banlo-uptcy 
 and the petition for adjudication, bond fide dealings with 
 the bankrupt during that time being especially pro- 
 tected (/v). 
 Equitable The distinction must be observed between such cases as 
 land dis- these, in which priority is determined by the time of notice, 
 tinguished. ^^^ ^he case of equitable interests in land, priority as to 
 
 (/) Calishcr V. Forhes, 7 Ch. 109. 127. 
 
 {<j) 32 & 33 Vict. c. 71. [k) s. 94, (3). ReStyan, 1 Ph. 105 ; 
 
 (/() s. 15, (5). 2 M. D. & De G. 219. 
 
 {i) Bartktt v. B., 1 De G. & J.
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 311 
 
 which is fixed by the order in time of the incumbrances, 
 and is not affected by notice (/). 
 
 For the reasons above given an assignee of a chose in 
 action should always promptly give written notice of the 
 assignment to the trustees or debtor in whose hands the 
 fund is, since by this means alone can he secure a right 
 in rem to the subject-matter of the assignment. If new 
 trustees of the fund are appointed, notice must again be 
 given to them, as they are not affected by notice to their 
 predecessors (m). The assignee can completely protect his Dlstrinyas. 
 security from the danger thus arising, only by having his 
 deed indorsed on the original deed, or by obtaining a 
 distringas upon the funds, or a transfer of them into 
 Court {n). If the fund is already in Court the assignee Transfer 
 should at once obtain a stop order, or he is liable to be stop order.' 
 postponed to a subsequent assignee who takes this step 
 before him (o). This has just the same effect as notice to 
 a trustee while the fund is in his hands, and if the fund is 
 paid in after such notice, it is secure, even without a stop 
 order {p). 
 
 3. The assignee of a chose in action, whether it be a debt Assignee 
 or a trust fund, generally takes it subject to all equities subject to 
 which affect it as against the assignor. Thus a bond void equities ; 
 as against the assignor does not become valid in the hands 
 of an assignee {q) ; if the assigned debt is subject to a set 
 off by the debtor the assignee is liable to the set off (r) ; if 
 the debt is payment only on condition, the condition is 
 binding on the assignee (s) ; and generally, the assignee 
 takes subject to the state of accounts between the assignor 
 and the debtor (t). Similarly, an assignee of a legacy or 
 
 (I) Jones V. /., 8 Sim. 633 ; Wilt- Sm. 8. 
 
 shire V. Rabbits, 14 Sim. 76. [q) Turton v. Benson, 1 P. Wms. 
 
 (m) Phipps V. Lovegrovc, 16 Eq. 496. 
 
 80. (r) Exp. Mackenzie, 7 Eq. 240 ; 
 
 (n) Ibid. Cavendish v. Greaves, 24 Beav. 163 
 
 (o) Greening v. Beckford, 5 Sim. 173. 
 
 195 ; Swayne v. ,S'., 11 Beav. 463. (s) Tooth v. HaJlett, 4 Ch. 242. 
 
 {p) Livesey v. Hardim/, 23 Beav. (t) Ord v. White, 3 Beav. 357 ; 
 
 141 ; Thompson v. Tomk'ins, 2 Dr. & Rolt v. Wliite, 31 ib. 520.
 
 312 MORTGAGES AND SALES. 
 
 residue, though for vahie and without notice, takes subject 
 
 to the testator's debts {u). 
 except in There are, however, two classes of exceptions to this rule. 
 negotiable First, as to negotiable instruments, such as bills of exchange, 
 
 instm- which, on grounds of commercial convenience or necessity, 
 
 ments, ■ , i i • t n r 
 
 carry with them a title tree irom any equities or cross- 
 claims as between the parties thereto (*•). On similar 
 grounds, indorsed bills of lading (y) and debentures payable 
 to bearer (z) have been similarly treated. Bills of exchange 
 indorsed when overdue are not, however, within the 
 exception (a). 
 
 or of Secondly, equities affecting the chose in action may be 
 
 lost by the release, either express or implied, of the person 
 entitled thereto (6) ; or by his neglect to enforce them 
 against the assignee. Enjoyment undisturbed for a con- 
 siderable lapse of time always tends to strengthen the 
 position of the assignee (c). 
 
 Jud. Act, 4. The law as to the assignment of choses in action has 
 
 ^■^^^' recently been placed on a different footing by the Judi- 
 
 cature Act, 1873. It is thereby enacted (d) that "Any 
 absolute assignment by writing under the hand of the 
 assignor (not purporting to be by way of charge only) of 
 any debt or other legal chose in action, of which express 
 notice in writing shall have been given to the debtor, 
 trustee, or other person from whom the assignor would have 
 been entitled to receive or claim such debt or chose in 
 action, shall be, and shall be deemed to have been, effectual 
 in law (subject to all equities which would have been 
 entitled to priority over the right of the assignee if the 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 a power to 
 
 (u) Hooper v. Smart, 1 Ch. D. 90, (h) In re Noo'tfierii Assam Tea Co., 
 
 {x) Exp. City Banl; 3 Ch. 758. 10 Eq. 458 ; In re Agra d-c. Bank, 
 
 (y) Chartered Bank etc. v. Hen- 2 Ch. 391. 
 
 dersmi, 5 L. R. P. C. 501. (c) HiU v. CaiUovel, 1 Ves. sr. 122; 
 
 (z) In re Blakely Ordnance Co., 3 Exp. Chorley, 11 Ecj. 157. 
 
 Ch. 154. (cZ) 36 & 37 Vict. c. 66, s. 25, 
 
 (a) Holmesv. Kidd, 3 H. & N. 891. sub-s. 6.
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 313 
 
 give a o-ood discharo-e for the same without the concurrence 
 of the assignor." 
 
 It is only necessary with respect to this to observe Effect of. 
 that — 
 
 (1.) It applies only to absohite assignments. Mortgages, 
 therefore, of debts remain on the same footing as before 
 the Act, and the assignee of a debt by way of charge cannot 
 sue at law (e) . 
 
 (2.) It applies only to legal choses in action. Equitable 
 choses in action, whether absolute or by way of charge, are 
 unaffected by this section, and if assigned can be sued for 
 in all Courts, the assignor and assignee being before the 
 Court. 
 
 (3.) Express notice in writing of the assignment must 
 have been given by the assignor. Previous, however, to 
 this Act an oral assignment of a legal chose in action was 
 valid in equity, and will now, it seems, be regarded as 
 valid in all Courts, the mode of transfer under the Act not 
 being compulsory (/). 
 
 5. This is a convenient place in which to comment on Illegal 
 certain assignments similar to those just now considered, ments.' 
 but which are on grounds of public jDolicy deemed void 
 both at law and in equity. 
 
 (1.) Pensions and salaries payable to public officers are Pensiong, 
 considered as given for maintaining the dignity of their 
 offices, and for securing the proper discharge of the duties 
 thereof. Effect will not, therefore, be given to an 
 attempted assignment of such pensions or salaries. Within 
 this principle fall the pay of a military officer ((/), of a 
 clerk of the peace (Jt), of a judge (^), and in fact the 
 emoluments of any public office (k). 
 
 (e) National Prov. Bank v. Harle, {i) Arbuthnot v. Norton, 5 Moo. 
 
 6 Q. B. D. 626. P. C. 219. 
 
 (/) Coote Mortgages, 499. (A.) See 46 Geo. III. c. 69, .s. 7 ; 
 
 (o) Stone V. Lldderdale, 2 Anstr. 47 Geo. III. sess. 2, c. 25, s. 4 ; 
 
 533. Davis v. D. of Marlborough, I 
 
 (A) Palmer v. Bate, 6 Moo. 28 ; 2 Swanst. 74. 
 Br. & B. 673.
 
 314 
 
 MORTGAGES AND SALES. 
 
 What 
 pensions 
 are assign- 
 able. 
 
 Cham- 
 perty and 
 mainte- 
 nance. 
 
 Purchase 
 pendente 
 lite, when 
 admissible, 
 
 Where, however, no particular service is to be rendered 
 to the public, an assignment of an interest or pension is 
 valid. Thus prize money was held assignable (1) ; so also 
 the pension of a County Court Judge for past services (w), 
 and civil service pensions generally (n). 
 
 (2.) Public policy, again, is opposed to assignments which 
 partake of the nature of champerty or maintenance — that 
 is, the buying of disputed or pretended titles. 
 
 Thus an assignment of a share of prize money, the sub- 
 ject of a then depending suit in the Admiralty Court, in 
 consideration of the assignee paying the costs of the suit, 
 was held void (o) ; the assignment of a bare right to file a 
 bill in equity was similarly treated (p). 
 
 But in certain cases a purchase or mortgage of an 
 interest pendente lite, or an advance of money for carry- 
 ing on a suit, is admissible. It is so if the parties 
 have a common interest (q), or if there exists between 
 them the relation of father and son (r), ancestor and 
 heir (s), or master and servant {t). The purchase pendente 
 lite of the subject matter of a suit by an attorney is, how- 
 ever, always invalid (u), unless at least it be by way of 
 security for payment of his costs (x) ; and the law in this 
 respect is unaffected by 33 & 34 Vict. c. 28, which enables 
 attorneys and solicitors in certain cases to make agree- 
 ments with their clients as to remuneration in lieu of 
 costs (y). 
 
 The strict rule as to champerty seems to have been 
 sometimes relaxed in special circumstances ; for instance, 
 the assignment of a legacy by a person too poor to sue for 
 
 {/) Alexander v. D. of Welling- 
 ton, 2 R. & M. 35. 
 
 (m) Willcock v. Terrell, 3 Ex. D. 
 323. 
 
 (w) SMison V. S., 4 P. D. 69. 
 
 (o) Stevens v. Bagwell, 15 Ves. 139. 
 
 (p) Prosser v. Edmonds, 1 Y. & 
 C. Ex. 481 ; Poivell v. Kmwles, 2 
 Atk. 226 ; Hill v. Boyle, 4 Eq. 260, 
 263 ; In re Paris Skating Rinh Co., 
 5 Ch. D. 959. 
 
 (q) Hunter v. Daniel, 4 Ha. 420. 
 
 (r) Burke v. Greene, 2 Ba. & B. 
 521. 
 
 (s) Moore v. Fisher, 7 Sim. 384. 
 
 (t) Wallis V. D. of Portland, 3 
 Ves. 503. 
 
 («) Simpson v. Lconi), 7 E. & B. 84. 
 
 (x) Anderson v. Radcliffe, 6 Jur 
 N. S. 578. 
 
 (y) In re Alt. tO Sol. Act, 1870, 1 
 Ch. D. 573.
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 315 
 
 it, to another, who sought to enforce payment by suit, was 
 upheld {z). And it is to be observed that a person who 
 has originally a good title to sue will not lose it by 
 entering into a bargain tainted with champerty (a). 
 
 (2) Tyson v. Jackson, 30 Beav. 384. (a) Hilton v. Woods, 4 Eq. 432.
 
 31 G 
 
 CHAPTER VI. 
 
 SURETYSHIP. 
 
 I. Cuntrast hehueen Legal and Equitable Doctrines. 
 II. General Principles of Equity as to Suretyship. 
 
 1. In the formation of the Contract. 
 
 2. As to subsequent departui-efrora the Terms. 
 
 E,ees V. Berrington. 
 III. Releases and Compositions. 
 
 1. As to Debtor. 
 
 2. As to Sureties. 
 
 IV. Continuing Sicretyship) or Guarantee. 
 V. Contribution betvjeen Co-stireties. 
 
 Dering- v. E. of Winchelsea. 
 VI. Rigid of Surety to Securities. 
 VII. Mights of S'lireties in Bankruptcy. 
 
 I. Coritrast betiveen Legal and Eepiitablc Doctriries. 
 
 The distinctions wliich fonneily existed between the 
 
 principles of common law and those of equity respecting 
 
 suretyship, may be concisely summarised under the 
 
 following headings : — 
 
 Proof of 1. Where it did not appear on the face of the instrument 
 
 whe/noif Creating the suretyship that a person was surety — if, for 
 
 apparent instance, in a bond the principal debtor and surety were 
 
 on the face , . . , 
 
 of the bound jomtly and severally — the surety could not, at law, 
 instru- aver by pleading that he was bound oidy as a surety, nor
 
 CONTRAST BETWEEN LEGAL AND EQUITABLE DOCTRINES. 317 
 
 was parol evidence admissible to prove it (a). But in 
 equity, although they both appeared as principals, parol 
 evidence was always admissible to show that one was only 
 a surety (Ij). The consequence was that upon the creditor 
 giving further time to the principal debtor, knowing liim 
 to be such, the surety, upon proving that fact, might have 
 relief in equity, although at law, where he appeared only 
 as principal, he would formerly have been held bound (c). 
 When equitable pleas became available at common law 
 this distinction disappeared (<:/). 
 
 2. In o^eneral an oblicjation created by an instrument Release of 
 could at law only be dissolved by one of equal force. Thus, antler 
 time given by a mere parol agreement, although for deeds, 
 valuable consideration, would not at law have discharged a 
 surety whose obligation arose from an instrument under 
 
 seal (e), or by matter of record, such as a recognisance (/). 
 
 In equity, however, this rule of law was disregarded ; and 
 
 as what is agreed to be done is looked upon as done, relief 
 
 is in such cases given (g). Conversely, by the operation Con- 
 
 of the same rule, a principal creditor might have been Juret/con- 
 
 held at law to have released a surety, where in equity the tinuiug 
 
 surety would still be considered liable — for instance, release. 
 
 where the creditor had by deed, with the parol consent 
 
 only of the surety, released the principal debtor (h). 
 
 3. The general principle of contribution between sureties Principles 
 at law originally rested on the ground only of an express bution at 
 contract between the parties. Subsequently jurisdiction ^^^• 
 was assumed to compel contribution in the absence of 
 positive contract, on the ground of implied assumpsit. 
 
 But though this assumption approached the equitable 
 principle of dealing with such cases, since it was held that 
 separate actions might be brought against the sureties 
 
 (a) Leivis v. Jones, 4 B. & C. 506. (e) Davey v. Prendcnjraxs, 5 B. & 
 
 [h) Clarice v. Henty, 3 Y. & C. Aid. 187. 
 
 Ex. 187. (/) Bvltcel v. Jarrnid, 8 Price, 
 
 (c) Craythorne v. Swinburne, 14 467. 
 
 Ves. 160, 170. (//) Bowmaker v. Moore, .3 Price, 
 
 (fZ) Pooley V. Harradine, 7 E. & 214. 
 
 B, 431, (h) Brool-s v. Stuart, 1 Beav. .512.
 
 318 
 
 SURETYSHIP. 
 
 Insolvency 
 of one of 
 more 
 sureties ; 
 
 or death. 
 
 for their respective quotas and proportions, there was 
 great inconvenience iu working out the legal remedy 
 where the sureties were numerous. Hence the equitable 
 relief by bill for contribution remained the best mode 
 which could be resorted to. 
 
 4. Where there were several sureties, and one became 
 insolvent, a surety who paid the entire debt could at law 
 have recovered only an aliquot part of the whole, calculated 
 according to the original number of the co-sureties (i). In 
 equity he can compel the remaining sureties to contribute 
 equally with himself (k). Thus if there were three 
 sureties, one of whom became insolvent, and one of the 
 remaining two paid the entire debt, at law he could only 
 recover one-third from the remaining solvent surety ; in 
 equity he can recover one-half. 
 
 So, also, if one of several co-sureties died, at law an 
 action only lay against the surviving sureties for their 
 proportions ; but in equity contribution can be enforced 
 also against the representatives of the deceased surety (l). 
 
 It was owing to the imperfection of the legal remedy in 
 these and other respects, which will be hereafter noticed, 
 that the jurisdiction of equity in matters of suretyship 
 arose ; and being once established, it was not affected by 
 the subsequently extended jurisdiction of the Courts of 
 law. Cases of suretyship, therefore, continue to come 
 chiefly under the cognisance of the Chancery Division of 
 the High Court. 
 
 II. The General Principles of Equity respecting 
 
 Suretyship. 
 
 1. As to the original formation of the contract 
 utmost The intimate nature of the relation between the parties 
 
 required. ^^ ^^^^ contract of suretyship requires that the utmost good 
 faith should be adhered to by them. Whenever there is, 
 
 (i) Coivdl V. Edwards, 2 B. & P. 271. 
 268. [1) Simpson v. Vaughan, 2 Atk. 
 
 (A-) Hitclman v. Stewart, 3 Drew. 31 ; Batard v. Haives, 2 E. & B. 287.
 
 GENERAL PRINCIPLES OF EQUITY. 319 
 
 with the knowledge and assent of the creditor, any mis- 
 representation to, or concealment from, the surety of 
 material facts, or any undue advantage taken of the 
 surety, as by surprise, the contract will be considered in- 
 valid, and the surety discharged from liability. 
 
 It is impossible to lay down in general terms any rule ^''^* ^'l^- 
 
 ^ ./ o o ^ cealment 
 
 by which to determine what degree of concealment or mis- annuls the 
 representation is necessary to annul the obligation of the i^'^^^^ioiJ- 
 contract. Equity has always refused to formulate a defini- 
 tion of fraud, lest, having done so, its jurisdiction should be 
 eluded by new schemes of man's ingenuity. Some 
 guidance is, however, afforded by the well authorised 
 statement that " if a party taking a guarantee from a 
 surety conceals from him facts which go to increase his 
 risk, and suffers him to enter into the contract under false 
 impressions as to the real state of facts, such concealment 
 will amount to fraud " (m). But it appears that this 
 broad statement is subject to certain limitations, and it 
 has been held that the true criterion as to whether any 
 disclosure ought to be made voluntarily, is to inquire 
 whether there was anything which might not naturally 
 have been expected to have taken place between the 
 parties ; that is, whether there was a contract between 
 the debtor and creditor to the effect that his position 
 should be different from that which the surety might 
 naturally expect (n). 
 
 A surety is entitled to be informed of any private Private 
 bargain between a vendor and vendee which can in any increasing 
 way increase his responsibility (o) ; and, moreover, if there ^^^ ^^.- 
 are any circumstances which afford ground for suspecting bility. 
 that fraud is being practised upon the surety by the Fraud, 
 debtor, the creditor cannot shelter himself under the plea 
 that he was not called upon to ask, and did not ask, any 
 questions on the subject. In such cases wilful ignorance is 
 
 (»i) Story's Eq. Jur., s. 215. (o) Pidcock v. Bishop, 3 B. & C. 
 
 (n) Hamilton v. Watson, 12 CI. & 605. 
 r. 109.
 
 320 
 
 SUHETYSIIIP. 
 
 not to be distinguished in its equitable consequences from 
 knowledge (q). 
 Rules not It has been decided, however, that the rules as to 
 in insiu'- guarantee are not so strict as those which are applicable 
 aiice. to the contract of insurance. A creditor, therefore, is not 
 
 bound, in the absence of inquiry by the surety, to acquaint 
 him with every circumstance in his knowledge affecting 
 the credit of the debtor, or of any matter unconnected 
 with the transaction which might render it hazardous (r). 
 2. Effects of subsequent departure from the terms of the 
 contra d. 
 
 (1.) Giving time to the debtor. 
 The case of 
 
 REES V. BERRINGTON 
 
 General 
 rule as to 
 giving 
 time. 
 
 Mere pas- 
 siveness 
 not suffi- 
 cient, 
 
 unless 
 there is 
 an express 
 stipulation 
 to that 
 effect. 
 
 [2 Ves. jr. 540 ; 2 W. & T. L. C. 992] 
 
 is a leading authority for the general proposition that if a 
 creditor, without the assent or knowledge of the surety, 
 agrees to give to the principal debtor a longer time than 
 was specified in the contract to which the surety was 
 party, he thereby loses his claim against the surety (s). 
 The cases, however, show that in the application of this 
 principle many circumstances must be considered. 
 
 Mere passiveness by the creditor — for instance, his not 
 taking proceedings against the debtor — will not, in the 
 absence of a binding stijjulation in the contract of surety- 
 ship requiring activity and promptness on his part, release 
 the surety. He himself must use diligence {f). If there 
 be a stipulation that on default the creditor is to sue 
 without delay, then failure to do so will discharge the 
 surety (w). In Rees v. Berrington the creditor was not 
 merely passive, but entered into a binding contract 
 to give further time, without the surety's consent. In 
 
 (q) Oiien V. Homan, 4 H. L. 997 ; 
 Mattlaml v. Iriim/, 15 Sim. 437. 
 
 (?•) iV. £. Insce. Co. v. Lloyd, 
 lOExch.523 ; Lee v. Jones, 14 C. B. 
 N. S. 386; 17 ib. 482. 
 
 (s) See also N islet v. Smith, 2 Bro. 
 C. C. 579. 
 
 (/) Ejire V. Everett, 2 Euss. 381. 
 
 (») B. of Ireland v. Beresford, 6 
 Dow. 233.
 
 GENERAL PRINCIPLES OF EQUITY. 321 
 
 such a case it is immaterial that the delay is given in con- 
 sequence of the debtor's inability to pay, or that no injury 
 could thereby accrue to the surety. Tlie surety is not Surety 
 required to prove damage. If there is a default he is pj-^^g 
 entitled to be consulted as to what steps shall be taken (x). damage. 
 
 A surety will not be discharged if time is given to the 
 principal debtor with his consent or subsequent approval (y) ; Time 
 and a subsequent promise to pay the debt will revive a surety's 
 liability which might otherwise have been discharged (z). consent. 
 
 An agreement with the debtor to give him further The agree- 
 
 ,., , ^1 ..,., ment to 
 
 time will not discharge the surety unless it is bind- give time 
 ing upon the creditor. A mere voluntary promise, not y^"*^* ^^^^ 
 acted upon, and which cannot be enforced, will not have creditor, 
 that effect (a). Nor will an agreement which is conditional 
 upon the performance of an act which in the event the 
 debtor does not perform (6). 
 
 A surety will not be discharged by the creditor giving Surety's 
 time, if the remedies of the surety are not diminished or must be 
 affected, d fortiori if they are accelerated (c). affected. 
 
 It seems that when a creditor has obtained a decree Surety not 
 
 , , ,,.... released by 
 
 against the surety, no subsequent dealings givmg time to dealings 
 
 the debtor will have the effect of releasing the surety, j^*®"" 
 
 , , decree ; 
 
 His liability in fact no longer rests on his suretyship, but 
 on the decree (d). 
 
 Nor will the surety be discharged if the creditor, on nor if the 
 giving further time to the principal debtor, reserves his ai^ainst tlie 
 right to proceed against the surety ; and it is immaterial surety are 
 whether the surety is informed of the arrangement or not. 
 The reason is, that when the right is reserved, the principal 
 debtor cannot say that it is inconsistent with giving him 
 
 {x) Samuel v. Hotvarth, 3 Mer. (b) Badnal\.Samuell,Z'PricQ,b2\. 
 
 272 ; Latham v. Chartered Bank of {r) Ilulme v. Coles, 2 Sim. 12, 
 
 India, 17 Eq. 205. where a creditor took a cognovit in 
 
 (y) Tyson v. Cox, T. & R. 395 ; an action brought against the credi- 
 
 Duffy V. Orr, 5 Bli. N. S. 620. tor with stay of execution until a 
 
 (z) Mayhew v. Crickett, 2 Swanst. day earlier than that on which 
 
 185, 192. judgment could have been obtained 
 
 (a) Philpot V. Briant, 4 Bing. in the regular course. 
 
 717 ; Tiirker v. Lainr/, 2 K. & J. (d) Jenkins v. Robertson, 2 Drew 
 
 74.5. 3i)l.
 
 322 
 
 SURETYSHIP. 
 
 Divisible 
 contract. 
 
 Givinfj 
 time to the 
 surety. 
 
 De- 
 partures 
 
 time tliat the creditor should be at liberty to proceed 
 against the sureties, and that they should turn round 
 upon the principal debtor, notwithstanding the time so 
 given him ; for he was a party to the arrangement by 
 which that right was reserved to the creditor (e). It is 
 evident that in such a case, notwithstanding the time given 
 to the principal debtor by the creditor, if the creditor at 
 once proceeds against the surety, the surety may forthwith 
 proceed in his turn against the debtor, and so the benefit 
 of the extended time may not in effect be realised by him ; 
 but of this he cannot complain. The right of the surety 
 against the principal debtor can only be lost by the surety's 
 contract to abandon it (/). It seems that parol evidence 
 is admissible to prove the reservation of right against the 
 surety {g), unless the time is given by deed, in which case 
 tlie reservation should appear thereon (Ji). 
 
 Where a contract is divisible — as, for instance, where 
 successive jiayments are to be made at fixed periods — if the 
 creditor contracts to give time as to one of such payments, 
 he will release the surety as to that payment only, not as 
 to subsequent ]oayments {i). 
 
 (2.) Under this heading may be conveniently mentioned 
 the analogous case in which the holder of a security agrees 
 with the principal debtor to give time to the surety. It 
 has been held that to do so effects the discharge of the 
 surety {k). It was considered that this was a stronger case 
 than an agreement to give time to the principal, which 
 only implies an agreement not to sue the surety ; but an 
 express agreement not to sue the surety prevents the 
 creditor from doing that which would throw the surety 
 upon the principal. 
 
 (3.) Other variations in the contract. 
 
 Where there is in the contract between the principal 
 
 (e) Wehh v. Hewitt, 3 K. & J. 
 442 ; Boulthee v. Stubbs, 18 Ves. 20. 
 
 (/) Close V. C, 4 De G. M. & G. 
 176. 
 
 (7) Wi/ke V. Roc/ers, 1 De G. M. 
 & G. 408. 
 
 (A) Exp. Glendinning, Buck. 517. 
 
 (i) Croydon Gas Co. v. Dickinson, 
 2 C. P. D. 46. 
 
 (k) Oriental ti:c. Corp. v. Overend, 
 Qumey & Co., 7 Ch. 142. 
 
 X
 
 p 
 
 GENERAL PRINCIPLES OF EQUITY. 323 
 
 debtor and the creditor a departure from that which the from the 
 surety stipulated for and contemphited when he entered generally 
 into the obhgation, the surety will, as a general rule, be ^f*^^^^ 
 released (l). 
 
 Thus where a person had agreed to become surety for lU^^tea- 
 another in a joint and several bond to A. and B. upon 
 having a counter-bond from A. and C. to indemnify him, 
 and the first bond was executed by the surety only, A. and 
 B. having neglected to procure the signature of the 
 principal, it was held that the surety was not bound, 
 though he received the bond of indemnity from A. and C. 
 The surety had a material interest in the extent of the 
 rights and remedies of the creditor against the principal 
 debtor ; and these being different from what he contem- 
 plated and contracted for, there was no claim against 
 him (m). But if in such circumstances the principal 
 debtor had executed some other instrument on which the 
 surety might sue him and become his specialty creditor, he 
 would have remained bound (n). 
 
 So where a surety executed a deed prepared by the 
 creditor which appeared to contain a joint and several 
 covenant by two co-sureties, but no other signature was 
 provided by the creditor as co-surety, the surety who signed 
 was discharged (o). 
 
 Where a person gave a promissory note as surety, upon 
 an agreement that the amount should be advanced to the 
 principal debtor by draft at three months, and the creditor, 
 without the concurrence of the surety, paid the amount at 
 once, the surety was discharged, on the ground of the 
 variation of the agreement (p). Where persons agreed to 
 become sureties for a contractor who was undertaking 
 certain works, and the contract was that three -fourths of 
 the work, as finished, should be paid for periodically, and 
 the remainder upon completion, paj'ments having been 
 
 (I) Bonser v. Cox, i Beav. 379 ; (n) Cooper v. Evans, 4 Eq. 45. 
 
 6 ib. 110. (o) Evans v. Bremridge, 2 K. & J. 
 
 (m) Ibid. Calvert v. London Dock 174 ; 8 De Gr. M. & G. 101. 
 Co., 2 Keen, 638. (f) Bonser v. Cox, 6, sup. 
 
 Y 2
 
 324 SURETYSHIP. 
 
 made exceeding three-fourths of the work done, the sure- 
 ties were released (g). 
 
 Where, as in Bering v. E. of Winchelsea (r), there is a 
 bond of suretyship for the fidelity of an officer, and the 
 nature of the office or its duties are materially changed so 
 as to affect the peril of the sureties, the bond will be 
 avoided (s). It is necessary, however, that the alteration 
 should be such as to materially affect the surety (t). It 
 may also be that the wording of the bond is extensive 
 enough to continue the liability notwithstanding a material 
 change (u). 
 
 Where a creditor takes a second security in satisfaction 
 of the first, the surety is discharged (x). But the taking 
 of an additional security not in lieu of the former one has 
 no such effect (y). 
 
 III. The Effects of Releases and Compositions. 
 
 Release or 1. Release of or composition with, the debtor. 
 
 ticnl^diLs^- Where a creditor releases, or compounds with the prin- 
 
 charges cipal debtor, without the concurrence of the surety, and 
 
 surf^ty, 11-1 1 . 
 
 unless although it may be done by mistake or for the benefit of 
 concurs or *^^® Surety, he will thereby discharge the surety unless 
 the con- there is a stipulation to the contrary (z). It would be a 
 stipulated, manifest fraud on the debtor to profess to release him, and 
 or surety then to suc the surety, who could forthwith sue the 
 
 has already / \ to ^ i i ■ i 
 
 partially debtor («). if, howevor, the surety has, previously to the 
 
 d^bt*^^ release given to the debtor, paid part of the debt and 
 
 given security for the remainder, the general rule will not 
 
 {q) Calvert v. London DocTcs Co., H. L. 856. 
 
 2 Keen, 638 ; Exp. Rushforth, 10 (x) Clarke v. Henty, 3 Y. & C. 
 
 Ves. 409. Ex. 187. 
 
 (r) 1 Cox, 318. (y) Goi-don v. Calvert, 4 Russ. 
 
 (s) Bonar v. Macdonald, 3 H. L. 581. 
 
 226. (z) Exp. Smith, 3 Bro. C. C. 1 ; 
 
 {t) Sandersonv. Aston, 8 Eq. L. R. Davidson v. MacGregm; 8 M. & W. 
 
 Ex. 73 ; Skillett v. Fletcher, 1 L. R. 755 ; Cragoe v. Jones, 8 L. R. Ex. 
 
 C. P.217. 81. 
 
 (v.) OswaM V. M. of Bcrwicl; 5 {a) NeviJVs Case, 6 Ch. 47.
 
 THE EFFECTS OF RELEASES AND COMPOSITIONS, 325 
 
 apply. The liability of the surety will then rest on the 
 security given, rather than on the original contract, and 
 will remain in force (6). *' "^ 
 
 A surety may, by further contract with the creditor, or surety 
 convert himself, in relation to the debt for which he was verted 
 surety, into a principal debtor ; and then, upon a release ^""*^!^l^ 
 being given to the party who was in the first instance the principal 
 principal, he will lose the benefit of the doctrine that the '^®°*°'^- 
 release of the principal releases the surety (c). 
 
 A creditor, if he has given an absolute legal or equitable Eight 
 release for a debt, cannot reserve his right to proceed g^'j?"ty 
 against the sureties {d). Where, however, a release can be cannot be 
 construed as a covenant not to sue, a reservation of remedies after ab- 
 against the surety is admissible. The covenant operates salute 
 
 ^ . release. 
 
 only as far as the rights of the surety are not affected ; Sccus in 
 and since the surety remains liable, he retains his remedies covenant 
 over against the principal debtor {e). "ot to sue. 
 
 A surety is not discharged by the creditor's signing the Surety not 
 certificate of a bankrupt debtor after proving his debt, by^J^^na- 
 although the surety may have given him notice not to ture of 
 sign it (/). And so, when a principal debtor is discharged certificate!' 
 by a resolution to which the creditors are parties, in 
 liquidation proceedings under sect. 125 of the Bankruptcy 
 Act, 1869, the surety remains liable, though the resolution 
 contains no reservation of rights against sureties. In this 
 case, as in an ordinary bankruptcy, the surety might have 
 paid the debt and proved under the liquidation {g). The So in com- 
 same rule seems to apply in the case of compositions under under^ths 
 sect. 126 of the same Act (/<-). Such compositions are Bank- 
 quite distinct from compositions under a deed of agree- ^ct. 
 ment such as have been already referred to. 
 
 (6) HaU V. Hatchons, 3 My. & K. 774 ; Green v. Wynn, 4 Oh. 204. 
 
 426. (/) Broicne v. Carr, 7 Bing. 508, 
 
 (c) Read v. Loiondes, 23 Beav. 361. 514. 
 
 {d) Nicholson V. Reiill, 4 Ad. & E. (y) EUis v. Wilmot, 10 L. R. Ex. 
 
 675 ; Webb v. Heivitt, 3 K. & J. 10, 15. 
 
 438. (h) Mcfjratk v. Crraij, 9 li R. C. 
 
 (e) Batcson v. Goslin;/, 7 L. R. C. P. 216; £xp Jacobs, 10 Ch 211. 
 P. 9 ; Bailey v. Edmirds, 4 B. & S.
 
 326 SURETYSHIP. 
 
 2. Release of, or composition with, one of two or more 
 
 co-sureties. 
 
 Eelease of It is a settled principle that the release or discharge of 
 
 dlschar'^es ^^^^ Surety by a creditor operates as a discharge of the 
 
 others; others, and this notwithstanding that it arises from a 
 
 mistake of law (i). 
 not so It has, however, been held in equity that a mere compo- 
 
 ti'on^^^^^' sition with one of the sureties would not have that effect, 
 and that at the same time the remedy against the co- 
 surety might be expressly reserved (/v). In such cases the 
 co-surety is not damnified ; for the creditor, by giving a 
 discharge to one surety for the proportion which he 
 was liable to contribute towards payment of the debt, has 
 no right to proceed against the other sureties for more 
 than their proportion of it (I). 
 nor a And if the release can be construed as a mere covenant 
 
 not to sue. ^^^ ^^ sue, it will not operate as a discharge of the co- 
 sureties (m). 
 
 IV. Continuing Suretyship or Guarantee. 
 
 Cases in which the suretyship is not for a definite debt, 
 but for a possible but uncertain liability, such as for dis- 
 counting bills, or for the due performance of certain duties, 
 give rise to special questions, especially with regard to 
 revocation. 
 Guarantee Sucli Contracts are not necessarily revoked by the death 
 voked by of the Surety (n), but are usually revocable at any time 
 death, before a liability has been incurred in respect thereof (o) ; 
 
 butusually '' . i i i • 
 
 revocable and liave been treated m equity as revoked when it was 
 before ^-^^ duty of the representatives of the guarantor, with the 
 
 (i) Cheetham v. Ward, 1 B. & P. 540, 552. 
 633 ; Nicholson v. Revlll, 4 A. & E. (w) Bradbury v. Morgan, 1 H. & 
 
 675. C. 249 ; Lloyd's v. Harper, 16 Ch. 
 
 (k) Exp. Clifford, 6 Ves. 805. D. 290. 
 
 (/) Stirling v. Forrester, 3 Bligh. (o) Offord v. Davies, 12 C. B. N. 
 
 591. S. 748. But see 31 Law Journ. 
 
 (»«.) Price V. Barker, 4 E. & B. Exch. 462. 
 760 ; Thoinp>son v. Lacic, 3 C. B.
 
 CONTINUING SURETYSHIP OR GUARANTEE. 327 
 
 knowledge of the creditors to whom the guarantee was liability 
 
 . . . 1 / ^ incurred. 
 
 given, to have given notice to determine the same {'jj). 
 
 A person, however, who by a continuing guarantee be- Seats 
 comes surety for the honesty of a servant, cannot ordinarily, for honesty 
 during the continuance of the service, discharge himself °^ servant, 
 by merely giving notice that he will be no longer liable (q). 
 But if the guarantor discovers acts of dishonesty in the 
 person for whom he has made himself answerable, he can 
 at once revoke his guarantee (?'). 
 
 Where a master, who has in his employ a servant whose Master 
 conduct has been guaranteed, discovers that the servant benrfit of 
 has been guilty of dishonesty, but nevertheless without p^rautee 
 the knowledge or consent, express or implied, of the ceaiment. 
 guarantor, continues such servant in his employ, he cannot 
 claim anything from the guarantor in respect of subsequent 
 acts of dishonesty (s). But it seems that if in such a case 
 the person suing the guarantor is not in a position which 
 gives him power to dismiss the employee, the guarantee 
 remains in force (t). 
 
 V. Contribution between Go- sureties. 
 In the important case of 
 
 BERING V. THE EARL OF WINCHELSEA 
 
 [1 Cox, 318; 1 W. & T. L. C. 106] 
 
 it was laid down that the right of contribution between Principle 
 co-sureties depended on the general principles of equity, 1^^^"^^''"" 
 and not on the form or nature of the contract between equity, 
 the parties. In that case, Thomas Dering, having been ap- 
 pointed collector of Customs duties, entered into bonds to 
 the Crown with three sureties for the due performance 
 of his office. His brother, Sir Edward Dering, together 
 
 {p) Hamss v. Fmocett, 8 Ch. 866. (s) Phillips v. Foxhall, 7 L. R. Q. 
 
 Iq) Calvert v. Gwdon, 7 B. & C. B. &m. 
 
 809 ; Gordon v. Calvert, 4 Russ. 581. {t) Laialer v. Z., 7 I. R. C. L. 57 
 (r) Burgess v. Eve, 13 Eq. 457.
 
 328 SURETYSHIP. 
 
 with the Earl of Winchelsea and Sir John Rous, became 
 sureties for him accordingly. Thomas Dering and Sir E. 
 Bering executed one joint and several bond in a penalty 
 of £4000, Thomas Dering and the Earl of Winchelsea 
 executed another similar bond, and Thomas Dering and 
 Sir Jolm Kous a third; all conditioned alike upon the due 
 performance by Thomas Dering of his duty as collector. 
 Thomas Dering being in arrear to the Crown to the 
 amount of £8883 14s. Od., the Crown put the first bond 
 in suit against Sir E. Dering, and obtained judgment 
 thereon for that sum. Thereupon Sir E. Dering filed this 
 bill against the Earl of Winchelsea and Sir John Rous, 
 claiming from them contribution towards the sum so re- 
 covered against him. It was held by Lord Chief Baron 
 Eyre that there must be equal contribution by the de- 
 fendants. Notwithstanding that the parties were bound 
 in different instruments, they were co-sureties for the same 
 principal, and in the same engagement, and were bound in 
 conscience to contribute proportionally to the penalties of 
 the bonds. In that case the penalties were equal, but the 
 principle would have been the same if they were bound 
 in different sums, except that contribution in that case 
 could not be required beyond the sum for which they had 
 become bound. 
 
 In Stirling v. Forrester (u), Lord Redesdale again held 
 that the right and duty of contribution was founded in 
 doctrines of equity ; that the principle was the same as in 
 cases of average, and that it would be against equity for a 
 creditor to exact or receive payment from one, and to 
 permit, or by his conduct to cause, the other debtors to be 
 exempt from payment ; he was bound, seldom by con- 
 tract, but always in conscience, as far as he was able, to 
 put the party paying the debt upon the same footing with 
 those who were equally bound. The principle may now, 
 therefore, be considered as firmly established. It seems, 
 even, that the right of a surety to enforce contribution 
 
 ((/) .3 Bligh. 590.
 
 CONTRIBUTION BETWEEN CO-SUBETIES. 329 
 
 will not be affected by his ignorance at the time he became 
 surety that there were co-sureties (x). 
 
 Such transactions as that in Bering v. E. WineJielsea must, Principle 
 however, be distinguished from those in which sureties are cable^^' 
 bound by different instruments for distinct portions of a where 
 debt due from a principal. If the suretyship of each is a bound by 
 separate and distinct transaction, the doctrine does not ^Serent 
 
 . . . . mstru- 
 
 apply, and there will be no right of contribution among ments. 
 the sureties (y). A surety is not entitled to call upon his 
 co-surety for contribution until he has paid more than his 
 proportion of the debt due by the creditor, even though 
 the co-surety has not been required to pay anything, unless, 
 indeed, the co-surety has been released by the creditor (z). 
 
 Although the principle of contribution is not founded Principle 
 upon contract, still a person may by contract qualify or ^u^ggd qj. 
 take himself out of the reach of the principle : for instance, excluded 
 where three co-sureties agreed among themselves that in tract, 
 case of the failure of the principal debtor to pay they 
 would each contribute his respective part, one of them 
 having paid the debt and another become insolvent, it was 
 held that the remaining one could only be required to 
 contribute one-third, not one half, which, in the absence of 
 such an agreement, would have been his liability (a). 
 
 Similarly a person may contract himself entirely out of 
 the princij^le, and become a merely collateral surety by 
 limiting his liability to payment in case of the default of 
 the princij^al and other sureties (6). 
 
 Parol evidence is admissible to show what the real con- Parol e^-i- 
 tract was, so as to avoid the application of the doctrine of ad^fssible, 
 contribution (c). 
 
 Sureties who have paid the debt are not only entitled Sureties 
 to contribution from the other sureties, but also to the securities 
 
 (x) Crai/thorne v. Swinburne, li W. 153; Exj). Snowdon, 17 Ch. D. 
 
 Ves. 160, 163. U. 
 
 {y) Coope V. Twynam, 1 T. & K. (a) Swain v. WaU, 1 Ch. Rep. 80. 
 
 426; Arcedeckne v. Howard, 20 W. (b) Craifthrjrne \. Sioinburne, sup. 
 
 R 879. (<•) Ibid. 
 
 {z) Davies v. Uuriipihreys, 6 M. &
 
 330 SURETYSHIP. 
 
 benefit of any security whicli any of them may have taken 
 from the principal debtor by way of indemnity {d), unless, 
 at least, there was originally a contract for the special 
 indemnity to one of the number (e). The principle is the 
 same as that more fully expounded in the next section. 
 
 VI. The Right of Surety to Securities. 
 
 A surety is entitled, on the payment of the debt, to all 
 the securities which the creditor has against the principal 
 debtor, whether given at the time of the contract or sub- 
 sequently, and whether given with or without the know- 
 ledge of the surety or of the principal (/). 
 Loss of Consequently, if a creditor who has had, or ought to 
 
 securities \^q^q hdA, such Securities, loses them, or suffers them to get 
 
 by creditor ' ' ' _ ° 
 
 diacharges back into the possession of the debtor, or fails through 
 
 sure y. neglect to make them effectual, as by failing to give proper 
 
 notice, the surety will, to the extent of such security, be 
 
 discharged {g). If the security has become worthless 
 
 otherwise than by the act or neglect of the creditor, its 
 
 loss, of course, effects no discharge (/t). 
 
 Surety A Surety who pays off a debt is entitled not only to all 
 
 au'^ecuities ^^^® equities which the creditor could have enforced against 
 
 against the principal debtor, but also to those available against 
 
 claiming pcrsous claiming under him. Thus where A. mortgaged 
 
 under the a,n estate to C, and B. became A.'s surety for the debt, 
 
 debtor ; ' . 
 
 and afterwards A. mortgaged the estate again to D., who 
 had notice of the first mortgage, the first mortgage being 
 paid off partly by B., he was held to have priority over D. 
 for the amount so paid, notwithstanding that D. got a 
 transfer of the legal estate {i). 
 
 (d) Swain v. Wall, 1 Ch. Rep. 81. Pledcje v. Buss, Johns. 663, 668. 
 
 (e) Cooper v. Jenkins, 32 Beav. (y) Capd v. Butler, 2 S. & S. 457 ; 
 337 ; Steel v. Dixon, 17 Ch. D. 825. La^o v. E. I. Co., 4 Ves. 824; Strange 
 
 (/) Mayheiv v. CricJcett, 2 Swanst. v. Fooks, 4 Giff. 408. 
 
 185; Pearl v. Beacon, 24 Beav. 186; (h) JIardvnck v. Wri(/ht, 35 Beav. 
 
 1 De G. & J. 461 ; Lake v. Brutton, 133. 
 
 18 Beav. 34 ; 8 De G. M. & G. 440 ; (i) Drew v. Lockett, 32 Beav. 499.
 
 THE RIGHT OF SURETY TO SECURITIES. 331 
 
 On the other hand, if a surety discharges an oblisfation can only 
 
 . ' -^ ^ . ® claim what 
 
 at less than its full amount, he cannot, as against tlie he actually 
 principal debtor, claim the whole amount, but only what P^^^^- 
 he has actually paid in discharge (j). 
 
 If a surety obtains from the principal debtor a counter- 
 security for the liability which he has undertaken, he 
 must bring into hotch-pot for the benefit of the co- 
 sureties whatever he receives from that source, even 
 though he consented to be surety only upon the terms 
 of having the security, and the co-sureties were at the 
 time of the contract ignorant of the security having been 
 given (/v). 
 
 The principle has been applied to almost every kind Principle 
 of security. Where the creditor obtained a judgment afmnds'of 
 against the principal debtor, and the surety paid the debt, securities. 
 it was held that he was entitled to an assignment of^"^|g 
 the judgment (l). But it was questioned whether such 
 assignment was of any effect, since the payment had been 
 considered to discharge the judgment, and so make it 
 valueless (m). 
 
 Similarly where a debt was secured by a bond, it was Bonds, 
 one time considered that a surety who paid it was entitled 
 to an assignment of the debt and bond. But in Copis v. 
 Middleton (n), and Hodgson v. Shatu (o), it was decided 
 that on payment of the debt the bond ceased to exist, and 
 was no longer available as a security. 
 
 By the Mercantile Law Amendment Act, 1856 (p), how- 19 & 20 
 ever, the law both as to judgments and bonds was estab- 
 lished in favour of sureties, it being, by sect. 5 thereof, 
 enacted that a surety who pays off a debt so secured shall 
 be entitled to have assigned to him every judgment, 
 specialty, or security which shall be held by the creditor 
 
 (i) Reed v. Nor7'is, 2 My. & Cr. 278 ; Hodgson v. SJmiv, 3 My. & K. 
 
 361, 375. 183, 191. 
 
 (k) Steel V. Dixon, sup. (n) 1 T. & R. 229. 
 
 {1} Parsons v. BriddocTc, 2 Vern. (o) Sup. 
 
 608. {p) 19 & 20 Vict. c. 97. 
 
 (m) Armitage v. Baldwin, 5 Beav.
 
 332 SURETYSHIP. 
 
 in respect of such debt, whether such judgment, &c., shall 
 or shall not at law be deemed to have been satisfied by 
 the payment of the debt. This Act is applicable to a 
 contract made before it was passed, where payment has 
 been made by a surety since that time {q). 
 
 A creditor who takes out execution against the debtor 
 is a trustee of it for all parties interested. If, therefore, he 
 withdraws it without the knowledge of the sureties, he 
 thereby discharges them (?'). So, also, if he loses the 
 benefit of it by neglect (s). 
 Further Where a creditor advances a further sum upon a security, 
 
 security, a Surety cannot compel him to assign it, unless he pays off 
 the further sum as well as the sum for which he became 
 Distinct Surety (t). And where separate debts are due upon dis- 
 for^se^^lT-^ tinct securities from the principal debtor to the creditor, 
 rate debts, the latter will not lose his right to tack from the fact that 
 a third party who has become surety for one of the debts 
 has paid off that debt (u), unless, at any rate, the mort- 
 gagee has been guilty of some concealment or misrepre- 
 sentation (v). 
 
 Tacking. 
 
 VII. Rights of Sureties in Bankruptcy. 
 
 Sureties Under the old bankrupt law, unless a surety had actually 
 
 rupicy. ' P^^^ *^® creditor before the bankruptcy of the principal 
 debtor, he could not himself prove under the bank- 
 ruptcy (x). But if the surety paid the debt after the 
 creditor had proved against the principal's estate, the 
 creditor, on receiving dividends, was held to be trustee 
 thereof for the surety {y) ; and a surety might compel the 
 creditor to go in and prove the debt under the bank- 
 
 (q) In re Cochran's Estate, 5 Eq. 597. 
 
 209. (u) Farebrother v. Wodchouse, 23 
 
 (r) Mayhcw v. C'rickett, 2 Swanst. Beav. 18. 
 
 185, 190. (v) Boickcr v. Bull, 1 Sim. N. S. 
 
 (s) Watson V. Allcoi-k, 1 S. & G. 29. 
 
 319 ; 4 l)e G. M. & G. 242. (x) Taylor v. Mills, Cowp. 525. 
 
 (t) William v. Owen, 13 Siui. (//) Exp. Rushforth, 10 Ves. 409.
 
 EIGHTS OF SURETIES IN BANKRUPTCY. 333 
 
 ruptcy {z). By various Bankruptcy Acts subsequent to 
 these cases, the surety was enabled to prove in his own 
 right for a debt which he had paid after the bankruptcy. 
 Neither the Act of 1869 nor the general rules made there- 
 under contain express provision for such proof; but by 
 sect. 78 thereof it is provided that in so far as the rules 
 made thereunder do not extend, the principles, practice, 
 and rules previously in force shall be observed. By sect. 
 31, also, provision is made for the proof of future and 
 contingent liabilities of the bankrupt, through the making 
 of an estimate of their value at the time of the bank- 
 ruptcy. By virtue of one or other of these sections, it is 
 submitted that the right of sureties to prove still exists ; 
 and it seems to have been assumed in Breslauer v. Broivn 
 that such was the case {a). 
 
 (s) Ibid. 414. (a) 2 C. P. D. 314 ; 3 App. C. 672.
 
 334 
 
 CHAPTER VII. 
 
 MARRIED WOMEN. 
 
 Sect. I. — Separate Estate. 
 
 General Comparison of Law and Equity. 
 Hulme V. Tenant. 
 I. TJie Creation of Separate Estate. 
 II, TJie Characteristics of Separate Estate. 
 (1.) Voluntary Dispositions. 
 (2.) Involimtary Dispositions. 
 (3.) Permissive Dispositions. 
 
 III. Restraint on Anticipation, 
 
 IV. Statutory Separate Estate. 
 
 Married Women's Property Acts. 
 V. Pin-Money. 
 VI. Paraphernalia. 
 
 General Comparison of Law and Equity. 
 
 1. Position of a married woman at common lavj. 
 
 Husband's (1.) By the common law, a husband on his marriage 
 
 hi wife's became entitled absolutely to all his wife's chattels per- 
 
 property. soual in possession. If he reduced her choses in action 
 
 ^erson- ^^^^ possession during the coverture, he similarly became 
 
 entitled to them ; if he survived his wife without having 
 
 reduced them into possession, he was entitled to recover 
 
 them as her administrator on taking out administration.
 
 POSITION OF MARRIED WOMAN AT COMMON LAW, 
 
 335 
 
 But if he died before his wife without having reduced 
 them into possession, the wife was entitled. He also 
 acquired full power over her legal chattels real, in posses- 
 sion and reversion ; but if he died before his wife without 
 having aliened them, they survived to her. He was like- Realty, 
 wise entitled to receive the rents and profits of the wife's 
 real estate during their joint lives. 
 
 Such were the extensive rights with which a husband 
 was by law invested in consideration of the obligation 
 which he incurred by the marriage of maintaining his 
 wife. Yet at the same time the wife had no legal remedy in 
 case of his refusing or neglecting to perform the duties in 
 consideration of which he acquired these rights, nor could 
 she claim any relief in the case of his insolvency or bank- 
 ruptcy. The property which had been hers, however large, 
 was as much at the mercy of his creditors as of himself. 
 
 (2.) On the other hand, the wife could not be sued in Wife could 
 
 p . ^ not be 
 
 any way, even tor necessaries. In certain cases her con- sued. 
 tracts for necessaries might bind her husband, but never 
 herself or the property which had been hers. Her 
 separate existence was not contemplated ; it was merged 
 by the coverture in that of her husband, and she was no 
 more recognised in Courts of law than a cestui que trust or 
 a mortgagor (a), 
 
 2. The position of the married woman in equity. 
 
 Such being the rigid rules of law as to the status of a 
 married woman, it is not surprising that Courts of equity 
 should have found ample ground for interference, and 
 should have established a system of doctrines more con- 
 sonant with reason and justice. 
 
 These doctrines are reducible to two leading principles — 
 first, the recognition by equity of the separate estate of a 
 married woman, with reference to which she is regarded 
 and treated as if she were a feme sole ; secondly, the prin- 
 
 (a) Blackstone, II., 433, 435 
 Coke upon Littleton, 300ff, 3516 
 Betts V. Kimpton, 2 B. & Ad. 277 
 
 Murray v. Barlee, 2 My. & K. 220, 
 222 ; In the goods of- Harding, 2 P. 
 & D. 394.
 
 336 MARRIED WOMEN. 
 
 ciple which requires a husband who receives property in 
 the right of his wife to make a proper settlement thereout 
 on his wife and children. The doctrines respecting sepa- 
 rate estate form the subject of the present section. 
 
 Equity differing therein from the ancient common law, 
 considers a married woman capable of owning property, 
 whether real or personal, in possession or reversion, to 
 her own use independently of her husband, and holds her 
 entitled to enjoy such property with all its privileges and 
 incidents, including the jus disponendi (h). 
 
 The leading case of 
 
 HULME V. TENANT 
 [1 Bro. C. C. 16 ; 1 W. & T. L. C. 521] 
 
 is usually referred to as most fully establishing and illus- 
 trating this principle. 
 
 In this case a bill was filed by the obligee of a bond to 
 secure £180 entered into by the defendants, husband and 
 wife, against the husband, wife, and her surviving trustee, 
 to recover the sums secured out of the wife's separate 
 estate. Upon the marriage the estates of the wife had 
 been conveyed to trustees, one part consisting of freehold 
 and leasehold lands, in trust to receive and pay the rents 
 and profits to the wife for her separate use, and to convey 
 the estate itself to such use as she should by will or deed 
 appoint, and, in default of appointment, to the use of her 
 heirs and assigns ; other parts to be sold, and out of the 
 produce £1000 to be laid out according to the directions 
 of the wife, the interest and profits to be paid to her, and 
 the principal to her or her order by note or writing under 
 her hand ; and for want of such appointment, to her execu- 
 tors, administrators, and assigns. This £1000 had been 
 raised, and the whole or the greatest part applied, so that 
 the question in the cause was with respect to the remedy 
 against the other estate. In 17G9 the husband borrowed 
 of the plaintiff, Mrs. Hulme, £50 upon his and his wife's 
 
 (b) Fettiplace v. Gorrjes, 1 Ves. jr. 46.
 
 SEPAKATE ESTATE. 337 
 
 bond. In 1770, having occasion for a further sum, the 
 wife herself applied to the plaintiff and borrowed £130, 
 paid the interest due upon the former sum of £50, and 
 gave a new bond for the £180. 
 
 Lord Chancellor Thurlow said that the rule had been 
 laid down in Peacock v. Monk (c) that a feme covert, acting 
 with respect to her separate j)roperty, was competent to 
 act in all respects as if she were a feme sole, and that this 
 rule was necessary to support the decisions on the subject. 
 The question here went a little beyond that : it was not 
 only how far she might act upon her separate property, but 
 how far her general personal engagement should be 
 executed out of her separate property. If she had by 
 instrument contracted that this or that portion of her 
 separate estate should be disposed of in this or that way, 
 she and her trustees might have been decreed to make 
 that disposition. But if she entered into an engagement 
 which would have made a fe^ne sole liable to the whole 
 extent of the contract as to her person, &c., in every 
 respect, such an engagement would not bind a feme covert 
 as such ; but determined cases seemed to show that her 
 general engagement should operate upon her personal 
 property, should apply to the rents and profits of her real 
 estate, and that her trustees should be obliged to apply 
 personal estate, and rents and profits when they arose, to 
 the satisfaction of such general engagement. The Court 
 had not used any direct process against the separate estate 
 of the wife ; the manner of coming at such proj)erty had 
 been by decree to bind the trustees as to personal estate in 
 their hands, or rents and profits according to the exigency 
 of justice, or of the engagement of the wife to be carried 
 into execution. Beyond this the Court had not gone. It 
 had never ordered a conveyance, or sale, or mortgage of real 
 estate to satisfy such an engagement, nor would he order 
 the execution of the power, so as to reach the real 
 estate. 
 
 (c) 2 Ves. sr. ] 90. 
 
 z
 
 338 
 
 MARRIED WOMEN. 
 
 The result, therefore, was that the personalty, including 
 leaseholds, and the rents and profits of the realty in the 
 hands of the trustees, were hold to be liable. 
 
 Our first inquiry will be as to the manner of creating 
 separate estate ; then as to the characteristics of separate 
 estate. 
 
 Gifts to 
 separate 
 lose. 
 
 Trustees 
 
 not 
 
 needed. 
 
 Form of 
 words im- 
 material. 
 
 lllustra- 
 tions. 
 
 I. The Creation of SeiDcirate Eddie. 
 
 (1.) The separate estate of a married woman most 
 usually arises from property being settled upon or devised 
 or bequeathed to her, expressly limited to her separate 
 use. 
 
 Notwithstanding former doubts, it is now clear that the 
 interposition of trustees is not necessary to the creation of 
 separate estate (cZ). As a matter of convenience it is of 
 course desirable, and the practice of appointing trustees of 
 property limited to the separate use is accordingly all but 
 invariable. But if no such appointment is made, equity 
 will still effectuate the intention, and will hold the husband, 
 who acquires the legal estate, trustee for his wife (e). 
 
 No particular form of words is required to vest property 
 in a married woman to her separate use, as long as the 
 intention to give her such an interest in opposition to the 
 legal rights of her husband is clear and unequivocal (/ ). 
 
 The followdug expressions have been held to be sufficient 
 to exclude the marital rights of the husband — a gift or 
 settlement to the wife, or to trustees for her, for her " sole 
 and separate use " (g) ; " for her separate use " Qi) ; " for 
 her own use, and at her own disposal " {i) ; " for her own 
 use, independent of her husband " (h) ; " for her own use 
 
 [d) Neivlands v. Paynter, 4 IMy. 
 & Cr. 408. 
 
 (e) Farker v. Brool:e, 9 Ves. 583 ; 
 Rich V. Cockell, 9 Ves. 375. 
 
 (/) Stanton v. Hall, 2 R. & My. 
 180. 
 
 {(/) Parker v. Brooke, sup. 
 
 [h) Massy v. Rowen, 4 L. R. H. 
 L. 288, 294. 
 
 (i) Inglefield v. CofjliJav, 2 Coll. 
 247. 
 
 (k) Wagstafe v. Smith. 9 Ve.«. 
 520.
 
 CREATION OF SEPARATE ESTATE. 389 
 
 and benefit, independent of any other person " (l) ; " that 
 she should receive and enjoy the issue and profits" (m) ; or 
 where there is a direction that the "interests and profits 
 he paid to her, and the principal to her, or to her order by 
 note in writing under her hand " (n) ; or " her receipt to 
 be a sufficient discharge " (o) ; or that the husband " is to 
 have no control " (p). 
 
 On the other hand, since an unequivocal intention to Intention 
 exclude the husband's rights must be shown, it has been ^{^^l '^*^ 
 held that no separate use is created by a direction " to 
 pay to a married woman and her assigns " (q) ; or to pay 
 a fund " into her own proper hands to and for her own use 
 and benefit" (/); or where property is given "to her 
 own use and benefit" (s) ; "to her absolute use" (t) ; or 
 " to her own proper use and benefit " (a) ; or " to be under 
 her sole control " (x). 
 
 A distinction must be observed between the effect of Distiuc- 
 certain words used in a gift to a woman already married, tween gifts 
 and the same words in a gift to a feme sole or widow. The t^o /''"'«■ «o^e 
 expression " separate use has a technical meaning, and is covert. 
 sufficient, whether the gift be to a married or to an unmar- 
 ried woman, with or without the intervention of trustees, 
 to impress the property given with the character of sepa- 
 rate estate (y). But the expression " sole use " has no 
 such technical meaning, and its interpretation depends on 
 circumstances. The result of the cases is that if the words 
 " sole use and benefit " are apphed to a gift to a woman 
 already married, they will suffice to exclude the husband's 
 marital right, and to create a separate estate (z). Also if 
 
 (I) Margetts v. Barringer, 16 Sim. & K. 184. 
 568. (t) Exp. Abbot, 1 Dea. 3-38. 
 
 (m) Tyrrell v. Hope, 2 Atk. 558. (u) BlacHoiv v. Laws, 2 Ha. 49. 
 
 (n) Hulme v. Tenant, 1 Bro. C. (x) Massey w. Parlcer, 2 My. &K 
 
 C. 16. 174. 
 
 (o) Leex.Prieaux, 3 Bro. C. C. 381. {y) See Massy v. Roiven, sup. 
 
 \-p) Edward v. Jones, 14 W. E, (2) Inglefield v. Coghlan, 2 Coll. 
 
 815. 247 ; Green v. Britten, 1 De G. J. & 
 
 {q) Lumb V. Milnes, 5 Ves. 517. S. 649 ; Hartford v. Pmver, 2 I. R. 
 
 (r) Tyler v. Lake, 2 R. & My. 183. Eq. 212 ; Bland v. Bawes, 17 Ch. D. 
 
 (s) Kensington v. Bollond, 2 My. 794. 
 
 z2
 
 340 MARRIED WOMEN. 
 
 the intended beneficiary be a woman about to marry, or 
 there are other expressions in the instrument from which 
 it can be gathered that a future marriage was contem- 
 plated by the settlor or donor, these v/ords will import exclu- 
 sion of the husband, and will create a separate estate (a). 
 Further, if in any case these words are used, and the property 
 is at the same time vested in trustees, it seems that they 
 will be considered sufficient to create a separate estate (6). 
 But if the gift is to a woman unmarried, and not in con- 
 templation of marriage, or to a widow, and without the 
 interposition of trustees, the words " sole use and benefit " 
 will not import exclusion of a future husband, and will 
 not suffice to impress on the property the character of 
 separate estate (c). 
 Agree- ^2.) Where, apart from the Married Women's Property 
 
 tween hiis- Act (d), a husband and wife agreed to live separate, and 
 wife ^'^^ ^^ interfere with property which each might subse- 
 
 quently acquire, the wife's subsequently acquired property 
 was considered as her separate estate (e). Apart also from 
 Desertion. 20 & 21 Vict. c. 85 (/), where a husband deserted his 
 wife, equity considered property acquired by her as sepa- 
 rate estate (r/). 
 Presents (3.) Presents from a husband to his wife will be deemed 
 
 to wife. separate estate where they are made absolutely, and not 
 merely to be worn as personal ornaments (Ji). So a 
 husband may make himself trustee for his wife of property 
 to be held as her separate estate (i). It seems, also, that 
 a gift from a stranger to a married woman, though not 
 expressed to be for her separate use, would be considered 
 separate estate (/>;). 
 
 (a) Exp. Ray, 1 Madd. 199, 207; {d) Infra, p. 354. 
 
 In re Tarsey's Trust, 1 Eq. 561 ; (c) Haddon v. Fladgatc, 1 Sw. & 
 
 Exp. KiUick, 3 M. D. & De G. 480. Tr. 48. 
 
 (6) Adamson v. Armitage, 19 Ves. (/) Infra, p. 354. 
 
 416. {rj) Cecil V. Juxon, 1 Atk. 278. 
 
 (c) Gilbert v. Leivis, 1 De G. J. & {h) Graham v. Lrmdonderri/, 3 
 
 S. 38; Lcuis v. Matthev-s, 2 Eq. Atk. 393; Grant v. G., 34 Beav. 
 
 177 ; Massy v. Roiven, 4 L. R. H. L. 623. 
 
 288 ; Ilarifc/rd v. Pmcer, 2 I. R. Eq. (i) Mevs v. 7>/., 15 Beav. 529. 
 
 212. [h] Graham v. Londonderry, sup.
 
 CREATION OF SEPARATE ESTATE. 341 
 
 (4.) The savings which a married woman may make Savings 
 out 01 separate property are considered as separate separate 
 estate (I). She has the same power with respect to them, P^'operty. 
 and they are subject to the same liabiUties (rri). Similarly, 
 arrears of separate estate in the hands of trustees will 
 be considered as retaining their original character (n). 
 Where, also, a husband living separate from his wife 
 remits money to her for her support and maintenance, 
 such money, and any savings which the wife may make 
 out of it, will be considered separate estate (o). 
 
 (5.) A married woman is entitled as to separate estate Outlay on 
 to any outlay made by her husband on real property property 
 settled to her separate use — for instance, to houses which he 
 builds thereon, or improvements made (p). 
 
 As to separate estate under 20 & 21 Vict. c. 85, and 33 
 &L 34 Vict. c. 93, see infra, pp. 354 et seq. 
 
 II. The Characteristics of Separate Estate. 
 
 In considering the question of the alienation or disposi- 
 tion of her separate estate by a married woman, it is con- 
 venient to distinguish first between voluntary disposi- 
 tions and involuntary dispositions which dej)end ujjon the 
 liability of the property to debts. 
 
 (1.) Voluntary dispositions. 
 
 (i.) Where the married woman has an absolute interest. 
 
 As to personalty settled upon a married woman for her Personalty 
 separate use, it is well established that she may enjoy it ^^■'^^^^ 
 with all its incidents, and may dispose of it either by acts alienable. 
 inter vivos or by will {q) ; and this whether the property 
 be in possession or reversion (r). 
 
 (0 Goj-e V. Knif/kt, 2 Vern. 535 ; 623. 
 
 Askew V. Rooth, 17 Eq. 426. (q) Fettiplace v. Gorges, 1 Ves. jr. 
 
 (m) Butler v. Cumpston, 7 Eq. 16. 46 ; 3 Bro. C. C. 8 ; Rich v. CockeU, 9 
 
 (n.) Asliton v. McDougcdl, 5 Beav. Ves. 369 ; WUlock v. Noble, 7 L. R. 
 
 56. H. L. 580. 
 
 (o) Brooke V. B., 25 Beav. 342. (r) Sturgis v. Coi-p, 13 Ves. 190 ; 
 
 \p) Barrack v. McGulloch, 3 K. & Stamford d-c. Bank v. Ball, 4 De 
 
 J. 110, 124; Grant v. G., 34 Beav. G. E. & J. 310, infra, p. 374.
 
 342 
 
 MARRIED WOMEN. 
 
 Life 
 
 interest in 
 realty. 
 
 Realty 
 alienalile 
 by will, 
 
 and by 
 deed. 
 
 Intestacy 
 as to 
 personal 
 estate. 
 
 As to real estate, it has always been admitted that a 
 married woman has the same power over her life interest 
 in real estate settled to her separate use as if she had 
 been a feme sole. She may without restriction give or 
 sell or mortgage it (s). 
 
 It was, however, long doubtfvil whether real estate could 
 be disposed of by will, unless an express power of appoint- 
 ment was given, or by act inter vivos otherwise than by 
 fine and recovery, or (since 3 & 4 Will. IV. c. 74) by deed 
 acknowledged. But it was clearly decided in the im- 
 portant case of Taylor v. Meads (t) that it is not now 
 necessary to the devise of such estate that there should be 
 any express power to that end, nor is it necessary to an 
 alienation by act inter vivos that there should be a deed 
 acknowledged under the statute. This case, which may 
 be referred to for a full discussion of the whole subject 
 now under view, confirmed the previous decisions of Pea- 
 cock V. MonJc (u), Tvbllet v. Armstrong (x), Adams v. 
 Gamble (y), and others. 
 
 The married woman has this power equally when trus- 
 tees are interposed and when they are not (z). If there 
 are trustees, their assent to the disposition is not necessary, 
 unless expressly made so by the instrument creating the 
 trust (a). 
 
 She may transfer her interest also as well to her hus- 
 band as to anyone else (b), though a husband so receiving 
 property must be prepared to show that it was clearly in- 
 tended as a gift (c). 
 
 On the death of a married woman without having dis- 
 posed of her separate estate, the old rules of common law 
 still apply. Thus personalty in possession will belong to 
 
 (s) Stead V. Nelson, 2 Beav. 245 ; 
 Majw V. Lansley, 2 R. & M. 357. 
 
 (t) 34 L. J. Ch. 203 ; 4 De G. J. 
 & S. 597. 
 
 (u) 2 Ves. sr. 190. 
 
 (a;) 1 Beav. 1 ; 4 My. & C. 377. 
 
 (y) 12 Ir. Ch. R. 102. 
 
 {z) Hall V. Watei'Jiousc, 13 W. R. 
 633. 
 
 (a) Essex v. Atkins, 14 Ves. 542 ; 
 Hodgson v. H., 2 Keen, 704. 
 
 {h) Griyhy v. Cox, 1 Ves. sr. 518. 
 
 (c) Rich V. Cockell, 9 Ves. 375.
 
 CHARACTERISTICS OF SEPARATE ESTATE, 343 
 
 her husband jure mariti {d) ; personalty not reduced into 
 possession will belong to him on his taking out administra- 
 tion (e) ; real estate will descend to her heir, subject to 
 the husband's curtesy (/). 
 
 It may be here conveniently mentioned that if a hus- -^ssign- 
 
 , , . . . ." . , . . ment by 
 
 band, in exercise of his legal right, assigns his wife's sepa- husband, 
 rate property to a purchaser for value without notice, she 
 has no remedy against the purchaser ((/). 
 
 (ii.) Where the married woman has a partial interest. 
 
 It is scarcely necessary to say that where there is a gift 
 absolutely to a married woman, but only the life interest 
 is limited to her separate use, the corpus of the estate, 
 being unaffected by the separate use, is not in her power, 
 and an attempted devise thereof would be invalid (Ji). 
 
 There is more difficult}^ with respect to the cases in Life 
 
 which there is an express estate for life given to the sepa- with power 
 
 rate use of a wife, with a power of appointment over the "^ appoint- 
 
 1 1 r« • • ment. 
 
 corpus alter her death, formerly the opinion seems to 
 
 have been that the capital could then only be disposed of 
 by an execution of the power strictly in compliance with 
 the provisions of tlie instrument conferring the estate (i). 
 Modern decisions, however, have continually been bringing 
 such cases nearer to the principle of Taylor v. Meads (k) ; 
 and now, where there is a gift to a wife to her separate use 
 for life, remainder as she shall, notwithstanding her cover- 
 ture, by deed or will appoint, high authority shows that it 
 will be treated as an absolute gift to her sole and sepa- 
 rate use, so as to fully vest in her the entire coiyas for 
 all purposes {I). 
 
 (2.) Involuntary dispositions. 
 
 The law as to the liability of separate estate to the debts Liability 
 
 (d) Molony v. Kennedy, 10 Sim. (h) Troutbeckv.Boughe!/,2'Eq.o'3'i. 
 •254. (t) Bradly v. Westcoit, 1-3 Vts. 
 
 (e) Proudlei/ v. Fieldes, 2 My. & 445, 451 ; Sockett v. Wray, 4 Bro. 
 K. 57. ■ C. C. 483. 
 
 (/) RoheHs V. Bixwell, 1 Atk. 607 ; (A) Sup. 
 
 Appleton V. Rowley, 8 TLq. I'i9 ; Stcii:- (I) London Cltartered Bank of 
 
 ard V. Blakeway, 4 Ch. 603. Australia v. Lemprlerc, 4 L. R. P. C. 
 
 (y) Dawson v. Prince, 4 De G. & 572 ; Bishop v. Wall, 3 Ch. D. 194. 
 J. 41.
 
 344 MARRIED WOMEN. 
 
 of separate and engagements of married women has steadily and 
 
 debts. continually developed in the direction of favouring creditors, 
 and treating the separate estate just as the absolute pro- 
 perty of a man would be treated. 
 
 Fraud. (i.) The strongest case for attaching liability to separate 
 
 estate is where a married woman has been giiilty of fraud. 
 Long before the capability of a married woman to bind her 
 separate estate by contracts was recognised, it was settled 
 that she was capable of committing fraud, and was liable 
 to the usual consequences of such an act. Thus in Savage 
 V. Foster (m), where a married woman knowing her own 
 title to property, suffered a purchaser to acquire it for 
 valuable consideration by concealing her title, she was not 
 allowed afterwards to set up her title against the pur- 
 chaser. In cases of fraud, moreover, property settled on 
 her for life with a general power of appointment which she 
 exercises, is, equally with property settled on her absolutely, 
 liable to supply any deficiency {n). 
 
 Breach of (ii.) A married woman will render her separate estate 
 liable by concurring with her trustees in a breach of 
 trust io), and she cannot call upon the trustees to rejDlace 
 it {p). So by herself committing a breach of trust in 
 respect of other property under the trust {q) she renders 
 her separate estate liable, unless she is restrained from 
 anticipation (as to which generally, see infro,, p. 348 et seq.) ; 
 and, notwithstanding such restraint, arrears of income under 
 the trust are also liable (r), but not future income (s). 
 
 (iii.) It was long after the recognition for many pur- 
 poses of separate estate, that a married woman was first 
 deemed capable of contracting debts in resj)ect of such 
 estate ;. and it is only quite recently that her capacity to 
 do so has been fully accepted with all its consequences. 
 
 specialty ^g might havo been expected, the first step was to hold 
 
 debts. 
 
 (m) 9 Mod. 35. (p) Crosbijv. ChurcJi, 3 Beav. 485. 
 
 (n) Vavffhan v. Vanderstegen, 2 (q) Clive v. Careiv, 1 J. & H. 199. 
 
 Drew, 165. (?■) Femlej-ton v. M'Gill, 1 Dr. & 
 
 (o) Breioer v. Swlrlcs, 2 Sin. & G. Sm. 266. 
 
 219 ; Jones v. Higrjins, 2 £q. 538. (s) Ibid.; Clive v. Carcw, supra.
 
 CHARACTERISTICS OF SEPARATE ESTATE. 345 
 
 that specialty debts, such as those secured by a bond 
 under her hand and seal, should be binding on her to the 
 extent of her separate property. As to this the principal 
 case of Hulme v. Teiutnt is a leading authority. There 
 she had joined with her husband in the bond ; but cases 
 are numerous, from Lillia v. Airey (t) down to Mayd v- 
 Field (lb), in which the same has been held under various 
 circumstances. 
 
 (iv.) Then the principle was extended to instruments of a Negotiable 
 less formal character, such as a bill of exchange accepted {x) cents' 
 or endorsed {y), and to a promissory note [z). 
 
 (v.) The next step was its application to general written Written 
 agreements — for instance, an agreement to pay additional ^g^^g 
 rent for a house {a) ; also to the payment of the costs of a generally, 
 solicitor whom she had instructed (b). 
 
 (vi.) Up to this point the principle on which the sepa- Verbal 
 rate estate was held to be liable was often represented to ^'^^ ^^'^ ^' 
 be that the written engagements in question ojDerated as 
 appointments of the settled property, and acquired their 
 validity as such, rather than as contracts ; and as long as it 
 rested on this ground it is clear that no liability could arise 
 from merely verbal contracts. But by many authoritative 
 decisions this view of the question has been com23letely 
 exploded (c), and it is now well established that separate 
 estate will be bound by general verbal engagements, 
 whether in the form of express contract or of the nature 
 of an assumpsit {d) ; though of course the fact of the party 
 being a married woman will not dispense with the neces- 
 sity of a written contract, where it is otherwise required (e). 
 
 (vii.) It yet remained to be decided whether a married Life estate 
 
 [t) 1 Ves. jr. 277. (6) Murray v. Barlee, 3 My. & K. 
 
 (m) 3 Ch. D. 387. 210. 
 
 {x) Stuart V. Kirkwall, 3 Madd. (c) Murray v. Barlee, 3 My. & K. 
 
 387; Owetiv. Homan, 4 H. L. 997. 210, 223; Owens v. Dickenson, Cr. 
 
 ((/) M'Uem-y v. Davies, 6 Eq. 462 ; & Ph. 53. 
 
 10 Eq. 88. (rf) Vaughan v. Vandersteyen, 
 
 (z) jBidlpin V. Clarke, 17 Ves. 365 ; sup. ; Johnson v. Gcdlarjher, 3 De 
 
 Field V. Sowle, 4 Russ. 112. G. F. & J. 494 ; Mattheinnan's 
 
 (a) Master v. Fidler, 4 Bro. C. C. Case, 3 Eq. 787. 
 
 19 ; 1 Ves. 513. (c) Re Sykes' Trust, 2 J. & H. 415.
 
 34G 
 
 MARRIED WOMEN. 
 
 with 
 
 general 
 power of 
 appoint- 
 iiU'iit by 
 deed or 
 will. 
 
 By will 
 only. 
 
 Extent of 
 the lia- 
 bility. 
 
 Liability 
 of husband 
 to maiu- 
 
 womau's general engagements would bind property settled 
 on lier for life with a general power of appointment which 
 .she has exercised. At length, in an important case already 
 referred to (/), it was held that where such general power 
 of appointment was exerciseable by deed or %vill, the 
 property might be charged by her act. There the charge 
 liad a special reference to the separate property ; but 
 reading that case along with Vaughan v. Vanderstegen 
 and others above cited, we should be led to the conclusion 
 that property so settled would be subject to general en- 
 yao-ements. We are not, however, now left to such an 
 inferential conclusion, for it has recently been decided, 
 where property was settled on a married woman for her 
 separate use for life, with remainder to such persons as 
 she should by her ivill appoint, she having made a testa- 
 mentary appointment, that the property was liable to the 
 payment of her debts, as if it had been settled on her 
 absolutely (g). It will be observed tliat here the power of 
 appointment could only be exercised by luill. A foHiori, 
 therefore, would property be liable which was subject to 
 appointment by will or deed. Of course it will also be 
 noted that such liability only arises in cases where the 
 power has been exercised ; it cannot affect persons entitled 
 under a gift over in default of appointment. 
 
 (viii.) The extent of the liability was by Hulme v. 
 'Tenant shown to reach to the whole of any personal pro- 
 perty settled, and to the rents and profits of the realty. 
 But since the case of Taylor v. Mead.s (Ji) it will be con- 
 sistent that it should be extended to the corpus of the 
 realty as well as to that of personalty. In no case can a 
 personal decree in respect of debts be made against a 
 married woman (i). 
 
 The fact of a married woman having separate estate does 
 not affect the legal liability of her husband to provide for 
 
 (/) London Chartered Bank tCr. v. 
 Letnpriere, 4 L. R. P. C. 572. 
 
 (7) /« re Harvey'' s Estate ; Godfrey 
 V. i/a»-6ew, 13Ch."D. 216. 
 
 [h) -i De G. J. & S. 597. 
 (i) Francis v. Wiyzell, 1 Madd. 
 264.
 
 CHARACTERISTICS OF SEPARATE ESTATE. 347 
 
 and maintain her and the family (k). She may, if neces- tain wife 
 sary — for instance, in case of her husband's lunacy — pledge f^iniiy 
 his credit for her own maintenance, and his estate will be 
 liable (I). And though she is now liable to the parish for 
 the maintenance of her husband and children, this does 
 not relieve him from his primary liability (m). 
 
 In special circumstances, however — for instance, where a Allowance 
 married woman was lunatic, and the husband was in poor separate 
 circumstances — an allowance has been made out of the estate for 
 separate estate to meet extraordinary expenses incurred in purpose. 
 maintenance (n). And it would not, it seems, be necessary 
 to show extreme poverty on the part of the husband to 
 justify such an allowance (o). 
 
 After the death of Sbfeme covert having separate estate, Adminis- 
 creditors may proceed against her separate estate for the married" 
 payment of their debts (p). If she has left a will, her woman's 
 estate will be administered according to the ordinary 
 rules in creditors' suits. 
 
 (3.) Fcrmissive dispositions. 
 
 Intermediate in character between those cases in which 
 a married woman by her own direct conveyance or transfer 
 alienates her separate estate, and those in which the law 
 lays its hand upon it as satisfaction for her debts and en- 
 gagements, there is a class of dispositions, which if not 
 exactly correlative with the others named, is yet of a 
 sufficiently distinctive character to justify a separate 
 consideration. 
 
 (i.) It often happens that, without any formal disposition Authority 
 of the corpus of her property, a married woman expressly f u^^band to 
 authorises monies arising therefrom to be paid to her receive 
 husband ; perhaps it is still more frequent that there is a 
 tacit permission of such payments. A leading authority 
 in such circumstances is the case of Caton v. Rideout (^q), 
 
 (k) Hodgms v. H., 4 CI. & F. 323, In re Baker's Trusts, 13 Eq. 168. 
 
 373. (o) Brodie v. Barry, 2 V. & B. 39. 
 
 {I) Davidsoiiv. Wood, 11 W. R. 561. (p) Owens v. Dickenson, Cr. & Ph. 
 
 (Mi) 33 & 34 Vict. c. 93, ss. 13, 14. 48. 
 
 [n) Edivards v. Aubrey, 2 Ph. 37 ; (q) 1 Mac. & (J. 601.
 
 34-8 MAIUIIED WOMEN. 
 
 which establishes the general rule that whether there has 
 been express authurity or tacit permission for the husband 
 to receive the income of the separate estate, he cannot 
 after receiving it be called upon to account for it, and the 
 wife cannot claim any reimbursement out of his estate. 
 Especially would this be the case where the husband had 
 been in the habit for a considerable time of receiving the 
 monies, and applying them without question for the benefit 
 of the family (r). Even if the circumstances of the case 
 are not sufficiently strong to warrant absolute immunity 
 from account, such account will not be extended beyond one 
 year's receipts (s). If, however, the wife has not expressly 
 authorised payment to the husband, nor tacitly acquiesced 
 therein, or if the circumstances are such that her consent 
 cannot be presumed, she will be entitled to be reimbursed 
 out of his estate any payments that may have been im- 
 properly made to him (t). 
 No pre- It has already been stated that as regards the corpus of 
 
 of o-ift to ^^16 separate estate, no presumption arises upon its transfer 
 husband as ^g the husband that a gift was intended. The onus of 
 
 to corpus. .. . . 
 
 proving it so is on the husband, and m the absence of 
 proof he will be deemed a trustee for the wife (u). Suffi- 
 cient proof may be deduced from acts of the wife evidencing 
 intention, without showing an express gift {x). 
 Loan to (ii.) If a married woman makes a loan to her husband of 
 
 by wife, t)^' *^^^t of her separate propety, she can recover the same as 
 a creditor by proof in an administration suit (_y). 
 
 III. — Restraint on Anticipation. 
 
 Origin of It is not surprising that the fact of its being held, as in 
 on antici- Hulwic V. Tenant, that the sejoarate property of a married 
 pation. woman should be enjoyed by her with as much freedom of 
 
 (»•) See also Powell v. Uankey, 2 («) Rich v. Cockell, 9 Ves. 369. 
 
 P. Wms. 82 ; Rowle^J v. Unwin, 2 (x) Gardner v. G., 1 Giff. 126. 
 
 K. & J. 138. [y) Woodward v. W., 3 De G. J. 
 
 (.b) Roidcy V. Unicin, niipra. & S. 672. 
 
 [t) Parker v. Brooke, 9 Ves. 583.
 
 RESTRAINT ON ANTICIPATION. 34 9 
 
 disposition, and subject to the same liabilities as if she were 
 St, feme sole, should have exercised the ingenuity of con- 
 veyancers to devise means for preventing such results, and 
 to preserve the settled property at once from voluntary 
 alienation, in which the husband's influence might be 
 exercised prejudicially to the wife's interest, and from 
 liability to destruction through the wife's improvidence. 
 To this end a clause was framed to the effect that the 
 wife should not have power to alienate the property, or to 
 anticipate the enjoyment of the income thereof {z). The 
 only question was whether this direction would be sustained 
 in equity. Such a clause would certainly have no effect 
 in a limitation of property to a man or to an unmarried 
 woman (a), from whom the jus disponendi cannot be 
 taken away by a mere prohibition ; but when the matter 
 came before the Courts, the case of a married woman's 
 separate estate was held to be distinguishable, and re- 
 straint on anticipation was deemed just and reasonable, 
 inasmuch as it tended to further the object for which 
 separate estate was first created (6). The clause is accord- 
 ingly valid and efficacious in a settlement or a devise to a 
 married woman, whether the property in question be real 
 or personal estate, whether limited in fee or absolutely, or 
 for life only (c). 
 
 1. What ivords will restrain alienation. How 
 
 As in the case of separate use, no particular form of ^^^''''^"• 
 1 . • T • -p 1 • ■ ^ No par- 
 
 words IS necessary to restrain alienation it the intention be ticular 
 
 clear. In addition to the common forms of expression, ""^t 
 
 1 ' words 
 
 which are equivalent, with the addition of more or less needed. 
 conventional verbiage, to the clear words " without power 
 of anticipation," it has been held that effectual restraint 
 is imposed by a direction that a trustee shall during the 
 lady's life receive the income " when and as often as the 
 
 (,-) Pylus V. Smith, 3 Bro. C. C. 22. 
 
 3.39. [c) Baggett v. Menx, 1 Coll. 138 ; 1 
 
 (rt) Brandon v. Rohiason, IS Ves. Ph. 627 ; Be Si/kes' Trusts, 2 J. & 
 
 429. H. 415. 
 
 (6) Tullett V. Armstrong, 1 Beav.
 
 350 MARRIED WOMEN. 
 
 same shall become due," and pay it as she shall appoint, 
 or permit her to receive it to her separate use, and that 
 her receipts, or the receipts of any person to whom she 
 may appoint the same after it shall become due, shall 
 be valid discharges for it (d). So, also, if the property is 
 " not to be sold or mortgaged (e), or if it is declared that 
 the wife shall "not sell, charge, mortgage, or encumber it," 
 though this may be followed by a declaration that she 
 should take it to her own sole and separate use and benefit 
 and disposal, and have the sole management thereof (/). 
 It is not necessary that negative words should be intro- 
 duced in the receipt clause ; this must be construed to 
 relate to the income, subject to such restraints as are im- 
 posed in the words of limitation (g). 
 Expres- On the other hand, the following expressions have been 
 
 sufficient Considered insufficient to show a clear intention to restrain 
 anticipation : Where there has been a bequest of stock for 
 the separate use of a wife for life, with a direction that it 
 should " remain during her life and be under the orders of 
 the trustees made a duly administered provision for her, 
 and the interest given to her on heo' iwrsonal appearance 
 and receipt " (h) ; and Avhere the wife is to receive separate 
 property "with her own hands from time to time," or 
 " so that her receipts alone for what shall be actually paid 
 into her own proper hands shall be good discharges " (i). 
 In short, words which amount only to an amplification of 
 the sense embodied in the expression " separate use " will 
 not add to the force of that expression by effecting a re- 
 straint on anticipation (k). Hovey v. Blaheman {I), which 
 seems contrary to this principle, has been virtually over- 
 ruled by the other cases referred to. Where, again, it was 
 provided in a gift to a wife for her separate use for life, and 
 
 {d) Field V. Evans, 15 Sim. 375 ; {Ji) In re Ross's Trust, 1 Sim. N. 
 
 Baker v. Bradley, 7 De G. M. & G. S. 196. 
 
 597. (1) Paries v. White, 11 Ves. 222 ; 
 
 (e) Stccdman v. Poole, 6 Ha. 193. Acton v. White, 1 S. & S. 429. 
 
 (/) Ba'jgett v. Meux, 1 Coll. 138 ; (Ic) Pyhvs v. Smith, 1 Ves. jr. 189 ; 
 
 1 Ph. 627. 3 Bro. C. C. 340. 
 
 {g) ffarrop v. Howard, 3 Ha. 624. (/) Cited, 9 Ves. 524.
 
 RESTRAINT ON ANTICIPATION. 351 
 
 after her decease to her appointees, that " in case any 
 appointment should be made by deed, the same should not 
 come into operation until after her death," it was held that 
 there Avas no restraint on anticipation, and that she might 
 appoint the fund by an irrevocable deed (m). 
 
 It must be carefully observed that a clause restraining Must 
 anticipation will be invalid if its effect would be to trans- j-^ig 
 gross the rule as to perpetuities (n). against _ 
 
 ° . . p perpetvii- 
 
 It was also held that in a bequest to persons in esse for ties, 
 life with remainder to their unborn children, with a general 
 direction that the females should take for their separate 
 and inalienable use, the restriction was void on the ground 
 of its remoteness (o). 
 
 2. The effects of restraint upon anticipation. 
 
 It has already been observed tliat property in the hands Restraint 
 of a feme sole cannot be made inalienable. The question, on second 
 therefore, has arisen whether, Avhen on the death of the mamage. 
 husband of a married woman so restrained the restraint was 
 discharged, it attached again on the occasion of a second 
 marriage. This was decided in the affirmative in Tullett v. 
 Armstrong (p). From that case the state of the law may 
 be deduced as follows : If the gift be made for her sole 
 and separate use, without more, she has, during the cover- 
 ture, an alienable estate, independent of her husband. If, 
 in addition to the limitation to her separate use, there is 
 a restraint on anticipation, she has during the coverture 
 the present enjoyment of an inalienable estate independent 
 of her husband. In either case, she has when discovert a 
 power of alienation, since the restraint on anticipation is 
 incident only to separate estate, and there can be no such 
 thing as separate estate apart from coverture. But the 
 restriction being a modification of the separate estate is 
 inseparable from it, and it accordingly again comes into 
 
 (m) Alexander V. Foim^/, 6 Ha. 393. In re Ridley, 11 Ch. D. 6i5 ; Cooper 
 
 (n) Fry v. Capper, Kay, 163 ; In re v. Laroche, 16 Ch. D. 368. 
 
 Teaf/ue's Settlement, 10 Eq. 564; {ii)Arinitaffev.Coafes,'35Jiea,v.l, 
 
 which wex-e I'eUictantly followed in (p) 1 Beav. 1.
 
 352 
 
 MARRIED WOMEN. 
 
 Substitu- 
 tion of 
 other 
 property. 
 
 When sub- 
 stituted 
 property 
 under 
 restraint, 
 and when 
 not. 
 
 Separate 
 use, &c., 
 may be 
 confined to 
 one cover- 
 ture. 
 
 operation when, on a second .coverture, the property again 
 becomes separate estate (q). 
 
 This being the case, the question often arises, in 
 cases where the woman has while discovert aliened the 
 property, and replaced it by other property, or otherwise 
 dealt with it so as to alter its condition, whether such acts 
 do not effectually discharge the property from all con- 
 ditions, so that she in future holds it, whether sole or covert, 
 discharged from all trust or restraint. The answer to this 
 inquiry depends on circumstances. 
 
 If the property remains during the time of the discover- 
 ture, and until a second coverture, in the hands of trustees 
 in statu quo, no question arises. If even there be 
 no trustees, and the property has not in the interim been 
 dealt with, upon her subsequent marriage the separate 
 use and the restriction attached revive {r). If, on the 
 other hand, property vested in trustees has been sold 
 during the discoverture at the woman's request, and the 
 proceeds handed to her, the identity of the settled estate or 
 fund is clearly gone, and accordingly the separate use, with 
 all its incidents, completely ceases (s). Or if even the 
 property is converted by means other than sale into pro- 
 perty of a different kind, the trust ceases, and with it all 
 the conditions thereof (^). The test question as to the 
 continuance of the separate use and restraint on anticipa- 
 tion is whether the property can be identified, or whether 
 it has lost its individuality in the meanwhile by the 
 woman's dealing with it. 
 
 It is, of course, quite possible to confine the trust for the 
 separate use of a married woman to a particular cover- 
 ture {u), but this will not be presumed when the words 
 employed indicate an intention that it should continue 
 during her life {x). 
 
 (q) See also Woodmestonv. Walker, 
 2 E. & My. 197 ; Ilmckes v. Hub- 
 back, 11 Eq. 5. 
 
 (r) Neidands v. Payntcr, 4 My. 
 & Cr. 408. 
 
 (s) WrUjld V. W., 2 J. & H. 655. 
 
 {t) Ibid. BiittansJiaw v. Martin, 
 Johns. 89. 
 
 (v) Moore v. Morris, 4 Drew, 33. 
 
 (x) G<(ffce's Settlement, 1 Mac. & 
 G. 541 ; JlawkeH v. Bvbback, srtp.
 
 RESTRAINT ON ANTICIPATION. oOd 
 
 A clause restraiuiiig anticipation will effectually prevent ^j.®"';'^'^^ 
 a married woman from alienating or charging any part' of restraint, 
 the corpus of the settled estate or fund during the cover- 
 ture. So if the fund be in Court she cannot call for a 
 transfer of it to herself (y). She can only deal with the 
 interest after it has become payable, not having power even 
 to assign an apportioned part of unpaid interest up to the 
 date of the assignment (-). 
 
 The clause is equally efficacious to prevent an involun- 
 tary alienation by operation of law of the corpus or the future 
 income of a fund, during the coverture. Thus not even for 
 her fraud is such property chargeable («). A fortiori it 
 will not be liable for her debts or general engagements (h). 
 The only cli?a-ge which can affect a fund so restricted is the 
 costs properly incurred by the trustees in the administration 
 of the trust (c). But see iufra, p. 358, as to the effect of 
 o3 & 34 Vict. c. 93, s. 12, in these cases. 
 
 So strictly was the restraint on anticipation regarded that Restraint 
 it could not until recently be dispensed with by a Court of until re- 
 eqnity, even where it was manifestly for the benefit of the f.^^^y ^^ 
 
 I- ^ ' J dispensed 
 
 married woman to do so, as where she Avas put to her elec- with even 
 tion between her settled property and a bequest of much (J^y^^^^^ 
 greater value (cZ). But now, by 4-]< & 45 Vict. c. 41, s. 89, 
 the Court is empowered, with her consent, to bind her 
 interest, where it appears to be for her benefit, notwith- 
 standing the restraint. 
 
 It appears that the clause restraining anticipation does Acquies- 
 
 . , r .^ f cence and 
 
 not exempt a married woman from the consequences oi com- 
 lapse of time and acquiescence (e), nor prevent her from promise, 
 binding herself by a compromise with her trustees (/). 
 
 (y) In re Ellis's Trust, 17 11(1. i09; (c) I)' OecJmier v. Scott, 24 Beav. 
 
 but see also Be Crovjjldons Tr., 239; In 7'c Keanc, 12 Hq. 115. 
 
 8 th. D. 460. (d) Robinson v. Whcdicright, 21 
 
 (2) In re Brcite, 2 De G. J. & S. Beav. 214 ; 6 De G. M. & G. 535 ; 
 
 79. GaskcU's Trusts, 11 Jur. N. S. 780. 
 
 (a) Olive v. Careiv, 1 J. & H. 199 ; (c) Derbishire v. Home, 3 De G. 
 
 Arnold v. Woodhanis, 16 Ecj. 29. M. & G. 80. 
 
 {b) Fitzjibbon V. Blalc, 3 Ir. Ch. ( f) Wilton v. Uill, 25 L. J. (Ch.) 
 
 Rep. 528. 156. 
 
 A A
 
 354 3IARRIED ^YOMEN. 
 
 IV. Statutory Separate Estate. 
 
 20 & 21 1. 20 & 21 Vict. c. 85 ; 21 & 22 Vict. c. 108. 
 
 21 & 22^^' By sect. 21 of 20 & 21 Vict. c. 85, amended by sect. 8 
 
 Vict. c. of 21 & 22 Vict. c. 108, a wife deserted by her husband 
 108. ,. . T • "^ . . . 
 
 may, on application to a ponce magistrate or to justices m 
 
 petty sessions, or to the Court, obtain an order for the 
 
 protection of any money or property she may earn or 
 
 become possessed of after such desertion against her 
 
 husband or any person ckximing under him ; and such 
 
 earnings and property will belong to the woman as if she 
 
 were a /erne sole (g). 
 
 Again, by 20 & 21 Vict. c. 8.5, s. 25, after a judicial 
 
 separation is decreed between husband and wife, she is to 
 
 be considered as a feme sole with respect to property of 
 
 every description which she may acquire, or which may 
 
 come to or devolve upon her ; and if she shall die intestate 
 
 the property shall go as if her husband had been then 
 
 dead : if, moreover, she should again cohabit with her 
 
 husband, all such property as she may be entitled to when 
 
 such cohabitation shall take place, shall be held to her 
 
 separate use, subject, however, to any agreement in writing 
 
 made by her husband and herself while separate. 
 
 2. The Married Woniens Property Acts (h). 
 
 ]M. w. These statutes have very greatly extended the principle 
 
 I'T- ^ ^- Qf ii^Q separate use of her property by a married woman, 
 
 and at the same time have considerably changed the legal 
 
 relation of a husband and wife to each other and to third 
 
 parties. It will be convenient to consider separately those 
 
 clauses which relate to the creation of new classes of 
 
 separate property and its investment, and those clauses 
 
 which extend the legal remedies available between and 
 
 asainst a husband and wife. 
 
 ([/) See also 21 & 22 Vict. c. 108, (/,) 33 & 34 Vict. c. 93, and 3/ & 
 
 ss, 6—10. 38 Vict. c. 50.
 
 STATUTORY SEPARATE ESTATE. 355 
 
 (1.) SejKcrate projjerti/ under the Statutes. ^.^^ ^^^^ 
 
 By sect. 1 of 33 & 34 Vict. c. 93: "The wages and earn- ^.V 
 iugs of any married woman acquired or gained by lier 
 after the passing of this Act in any employment, occupa- 
 tion, or trade in which she is engaged, or which she carries 
 on separately from her husband, and also any money or 
 property 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 her separate 
 use, independent of any husband to whom she may bo 
 married, and her receipts alone shall be a good discharge 
 for such wages, earnings, money, and j^roperty." 
 
 By sect. 7: "Where any woman married after the pass- s. 7. 
 ing of this Act shall, during her marriage, become entitled 
 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 exceed- 
 ing £200 under any deed or will, such property shall, 
 subject and without prejudice to the trusts of any settle- 
 ment affecting the same, belong to the woman for her 
 separate use, and her receipts alone shall be a good dis- 
 charge for the same." 
 
 It will be observed that this section, while it gives a 
 wife the separate use of property to any extent coming 
 to her through an intestacy, does not affect any gift by 
 deed or will other than sums of money not exceeding 
 £200 (/). But this enactment will not in the least affect 
 her equity to a settlement out of funds coming to her or 
 to her husband in her right by deed or will : as to which 
 see infra, pp. 3G2 et seq. 
 
 By sect. 8: " Where any freehold, copyhold, or customary- s. 8. 
 hold property shall descend upon any woman married 
 after the passing of this Act, as heiress or co-heiress of an 
 intestate, the rents and profits of such jDroperty shall, 
 subject and without prejudice to the trusts of any settle- 
 ment affecting the same, belong to such woman for her 
 
 (i) Kbuj V. Voss, 13 Ch. D. 504. 
 
 A A 2
 
 s. 10. 
 
 3oG MARRIED WOMEN. 
 
 separate use, and her receipts alone shall be a good dis- 
 charge for the same." 
 
 From the fact that the rents and jjrofits here mentioned 
 arc not limited to those arising during the life of the 
 married woman, it has been questioned whether this sec- 
 tion does not apply to the corpus of descended estates {k). 
 
 ss. 2—5. Sects. 2 to 5 of the same statute relate to the invest- 
 ment of separate estate by married women. Their effect 
 is to admit of such separate property being invested in 
 the name of the married wom.an in savings banks (post- 
 office or otherwise), and government annuities (?); in the 
 public stocks and funds {m) ; in shares and debentures to 
 which no liability is attached, of any incorporated or joint- 
 stock company {n) ; or in similar shares or debentures of 
 any duly registered friendly or benefit society (o). 
 
 Ey sect. 10, a married woman is empowered to effect 
 an insurance on her own or her husband's life to her 
 separate use ; and similarly a married man may effect an 
 insurance on his own life on trust for the benefit of his 
 wife for her separate use, and of his children, as may be 
 expressed on the policy ; and such insurance will then be 
 free from the control of himself or his creditors, and will 
 not form part of his estate. 
 
 It has been held that a policy on his own life effected by 
 a trader under this section for the benefit of his wife, or 
 his wife and children, will be valid, notwithstanding s. 91 
 of the Bankruptcy Act {p), but will be subject to the 
 liability of repaying any premiums thereon which may 
 have been paid out of the husband's estate, in fraud of his 
 creditors (r/). 
 
 s. 0. And by sect. 6 of the Act under consideration, tlie 
 
 rights of a husband's creditors are expressly protected 
 against any of his property which may be invested by him 
 in his wife's name under the above sections, in fraud of 
 
 (A) Klnrj V. Toss, 13 Ch. D. 504. (o) s. 5. 
 
 (/) s. 2. (j>) 32 & 33 Vict. c. 71. 
 
 (m) s. 3. (q) Holt V. Everall, 2 Ch. D. 266, 
 
 (n) s. i. 276.
 
 STATUTORY SEPARATE ESTATE. 357 
 
 his creditors, and any monies so deposited or invested 
 may be followed as if the Act had not been passed. 
 
 (2.) Extension of legal renfiedies by the Statutes. 
 
 (i.) Between husband and wife. 
 
 Sect. 9 of 33 & 34 Vict. c. 93, provides that in any s. 9. 
 question between husband and wife as to any property 
 declared by the Act to be the separate property of the 
 wife, either j)arty may apply by motion or summons in a 
 summary way to the Court of Chancery or to a County 
 Court (irrespective of the value of the property), and that 
 thereupon the judge may make such order, direct such 
 inquiry, and award such costs as he shall think fit, subject 
 to appeal as in the case of a suit or equitable plaint. 
 
 (ii.) Between husband and wife, and third person. 
 
 Sect. 11 enacts that "A married woman may maintain ?. n. 
 an action in her own name for the recovery of any wages, 
 earnings, 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 marriage as her separate property, 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, chattels, and property belonged to her as an 
 unmarried woman ; and in any indictment or other pro- 
 ceeding, it shall be sufficient to allege such wages, earnings, 
 money, chattels, and property to be her property." 
 
 By sect. 12: "A husband shall not by reason of any s. 12. 
 marriage which shall take place after this Act has come 
 into operation, be liable for the debts of his wife con- 
 tracted 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."
 
 358 MAimiED WOMEN. 
 
 This section, under which it has been hekl that a 
 restraint upon anticipation was no bar to a creditor's 
 rights (r), required and has received legislative amend- 
 ment. For if any property which the wife may have 
 possessed before her marriage was not reserved on the 
 marriage to her separate use, there remained no remedy 
 for debts contracted by her before marriage. The husband 
 was not liable, because the section expressly exempted 
 him. The wife's property was not liable, because, not 
 being reserved to her separate use, it did not come within 
 
 37 & 38 the latter clause of the section. It was, therefore, enacted 
 
 Vict c 50 . 
 
 8. 1.' ' ' by 37 & 38 Vict. c. 50, that as to persons married after 
 
 the 30th of July, 1874, the husband and wife shall be 
 
 liable to be jointly sued for her ante-nuptial debts (s). 
 
 s. 2. Again, by sect. 2 of the same statute, " The husband 
 
 shall, in such action, and in any action brought for 
 
 damages sustained by reason of any tort committed by 
 
 the wife before marriage, or by reason of the breach of 
 
 any contract made by the wife before marriage, be liable 
 
 for the debt or damages respectively to the extent only of 
 
 the assets hereinafter sj^ecified." 
 
 s. 5. Sect. 5 specifies the assets so liable 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 
 
 with reasonable diligence might have reduced into posses- ' 
 
 sion. 
 
 (3.) " The value of the chattels real of the 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 contem- 
 
 (r) Sanrjer v. S., 11 Eq. 470. (s) s. L
 
 PIN-MONEY. 359 
 
 plation of lier 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 contemiDlation of her marriage with the hus- 
 band shall, with his consent, have transferred to any 
 person with the view of defeating or delaying her existing 
 creditors." 
 
 V. Pin-Money. 
 
 Analogous to separate estate, but in some respects 
 requiring separate consideration, is what is termed the 
 pin-money of the wife. It has, indeed, been said to be 
 impossible precisely to express the distinction been pin- 
 money and separate estate {t). 
 
 Pin-money may, however, be sufficiently described as an Definition, 
 allowance settled upon a wife before marriage for the pur- 
 pose of her separate personal expenditure. It is designed 
 to defray her personal expenses, and to purchase dress and 
 ornaments suitable to her husband's rank, so that it shall 
 not be necessary for these purposes that she should be 
 continually aj)plying to her husband for money. Gifts 
 and payments of money made for the same purposes by 
 the husband during the coverture, are also considered as 
 pin-money. 
 
 Almost the only questions respecting pin-money which 
 come under judicial notice are those connected with claims 
 for payment of arrears after a husband's death. The rules 
 respecting such claims sufficiently distinguish pin-money 
 from ordinary separate estate. 
 
 As a rule, when a wife permits her pin-money to run Arrears, 
 considerably in arrear, she cannot on the death of her y-^J^^^l, 
 husband claim payment for more than one year prior to able. 
 his death (u). The income of her sej^arate estate she may 
 
 {t) Hoicard v. Dlghy, 8 Bli. N. R. Tojmshcml v. Windham, 2 Ves. 
 259. sr. 7. 
 
 {u) Aston V. A., 1 Ves. si-. 267 ;
 
 :3G0 MARRIED WOMEN. 
 
 Norightto save or spend as she pleases; but the purpose for which 
 late. pin-money is provided is lor expenditure as may be neces- 
 
 sary ; and if not required, if, for instance, the husband 
 chooses to defray the expenses which would fairly come 
 within it, the wife has no right to accumulate it. If, 
 indeed, the husband has actually paid for all the wife's 
 apparel, and provided for all her private expenses, it has 
 been held that her pin-money is thereby satisfied, and 
 that she cannot claim any arrears at all at his death (y). 
 Again, pin-money being required only for the wife per- 
 sonally, her executors have no right to claim any 
 arrears (x). 
 
 The only case in which more than one year's arrears has 
 been allowed was where it appeared that the wife had 
 complained of short payments of the money, and her 
 husband had promised that she should have it at last. 
 There she was held entitled to all the arrears due at her 
 husband's death (?/). 
 
 VI. ParapJiernal la . 
 
 Defined. Such apparel and ornaments of a wife as are suitable to 
 her condition in life, such as jewels, &c., given to her to 
 be worn on her person, are called her paraphernalia (z). 
 The family jewels of the husband, though worn by the 
 wife, are not included, unless she acquires them as such 
 by gift or bequest (a). As to gifts of jewels by a husband 
 to his wife after marriage, it apparently depends on the 
 intention whether they shall be deemed paraphernalia or 
 separate estate. If given only for the express purpose of 
 her wearing them, they are paraphernalia (6) ; if given to 
 her absolutely, they become separate property (c). Such 
 
 (v) Thomas v. Bennett, 2 P. Wins. 394. 
 341 ; Hoimrd v. DUjly, 8 Bli. N. R. («) Jrrrohe v. /., 17 Beav. 570. 
 
 269. (b) Ibid. 
 
 {x) Ibid. (c) Graham \. Londonderry, su}!.; 
 
 ly) Rideout v. Lewis, 1 Atk. 269. Grant v. G., 13 W. R. 1057. 
 
 (z) Graham v. Londmulemj, 3 Atk.
 
 PARAPHERNALIA. 3G1 
 
 articles given by a person other than the husband, are 
 usuall}' deemed to constitute separate property (d). 
 
 During the life of the husband and wife, the husband Husband's 
 may disjiose of the wife's paraphernalia either by sale or pa^^pher-*^' 
 gift inter vivos ; but he cannot dispose of them by will (e). ^^^i^- 
 ]f, however, he purports to do so, and by the same will 
 confers other benefits upon his wife, she will be put to 
 her election between her paraphernalia and such 
 benefits (/). The wife has no power to dispose of her 
 paraphernalia, either by gift or will, during the husband's 
 lifetime (//). 
 
 The parapliernalia are liable to the debts of the hus- Liability 
 band (A), but in the administration of the assets of a band's 
 deceased husband, his widow's claim to paraphernalia is tl^bts. 
 preferred to the general legacies (i). She is, therefore, 
 entitled to marshal the assets in lier favour in all cases 
 in which a general legatee can do so (h). Where, more- 
 over, the husband in his lifetime has not alienated but 
 has merely pledged his wife's paraphernalia, on his death 
 she is entitled to have them redeemed, if the estate be 
 sufficient, even to the prejudice of his legatees ; her claim 
 being higher than that of pure volunteers (/). 
 
 (d) Lucas V. L., 1 Atk. 270. (h) Campion v. Cotton, 17 Ve?, 
 
 (e) ijcymore v. Trcsilian, 3 Atk. 273. 
 
 358. (0 Tippiny v. T., 1 P. Wms. 729. 
 
 (/) Churchill V. Small, 2 Kenyon, (/(■) See infra, pp. 501, 510. 
 
 pt. 2, p. 6. [I) Graham v. Londotuhrri/, Siqx 
 
 (<j) 1 Bright. H. & W. 287.
 
 3G2 wife's equity to a settlement. 
 
 Section II. — A Wife's Equity to a Settlement. 
 
 I. History of the Doctrine. 
 II. Characteristics of the Principle. 
 Elibank v. Montolieu. 
 Murray v. Elibank. 
 
 1. The Rights of the Children. 
 
 2. Out of vjhat Property Settlement may he 
 
 claimed. 
 
 3. Waiver of Settlement. 
 
 4. What circumstances v:ill bar the Equity. 
 
 5. Amount of the Settlement. 
 G. Form of Settlement. 
 
 7. Uoiufar Settlement hinds Creditors. 
 
 III. Reduction into Possession by Husband of Wife's 
 
 PropeHy. 
 
 IV. Fraud on Marital Rights. 
 
 Strathmore v. Bowes. 
 
 1. Statement of the Principle. 
 
 2. When undisclosed Settleraents valid. 
 
 The second of the great principles by which equity has 
 modified the doctrines of common law respecting the 
 status of married women, is that known as the wife's equity 
 to a settlement. 
 P.ights of As we have seen, at common law (apart from recent 
 at'laf legislation) a husband on marriage became entitled to 
 receive the rents of the Avife's real estate during their 
 joint lives, and entitled absolutely to all her chattels per- 
 sonal in po.ssession, and to her choses in action if he 
 reduced them into possession during the coverture. These 
 rights, moreover, have always been recognised in equity,
 
 HISTOKY OF THE DOCTRINE. 363 
 
 and apply equally to both legal and equitable property. 
 Priiiul facie, therefore, the wife's property, whether in 
 law or in equity, becomes the husband's on the marriage. 
 
 But though equity so far followed the law as not to Progress of 
 take the initiative in any interference with the husband's doctrine. 
 legal rights, yet in cases in which it was necessary for Settlement 
 the husbaad to seek the assistance of the Court in order j^usband 
 to obtain possession of the wife's property, the Court, wjien 
 
 , • 11 -1 plaintiff. 
 
 acting upon the maxim that " he who seeks equity must 
 do equity," long ago adopted the practice of refusing that 
 assistance unless the husband consented to make an 
 adequate settlement out of such property for the benefit 
 of the wife and children. 
 
 But the jurisdiction which was thus first exercised Against 
 only when the husband came before the Court as a of insol- 
 plaintiff, did not long remain so confined. The next step ^ent hus- 
 in its develoiDment was its application against the assignees 
 of a bankrupt or insolvent husband, or under a general 
 assignment for the payment of his debts ; these being 
 held entitled to relief only on the same terms on which 
 it would have been granted to the husband himself (m). 
 
 The Court of Bankruptcy has, it seems, jurisdiction 
 to order a settlement to be made upon the wife of a 
 bankrui3t who insists upon her right {n). 
 
 Then, on the ground that it was absurd to allow a Against 
 husband by an assignment for valuable consideration to ^"'^'^ 
 put the assignee in a better position than himself, and 
 thus indirectly to defeat the equity of the wife, the Court 
 maintained the same doctrine in suits by purchasers (o) 
 and mortgagees {ij). 
 
 Lastly we come to the full development of the prin- Settlement 
 ciple in the leading case of ElibanJc v. Montolieu (q), in ^f ^j]g ' 
 which a wife was permitted to assert her right in equity ^^''fe. 
 
 {m) Osicell V. Prohcrt, 2 Ves. jr. (o) Macaiday v. I'hU'ips, 4 Ves. 
 
 680; Jewson v. Moulson, 2 Atk. 15, 19. 
 
 417, 420. (p) Scott V. Spasltct, 3 Mac. & G. 
 
 [n\ Exp. Norton, 8 De G. M. & G. 599. 
 
 258. ' (q) Infra, p. 364.
 
 1 
 
 )G4! wife's equity to a settlement. 
 
 as a plaintiff, -without the necessity of waiting until the 
 husband miyht need the aid of the Court. 
 
 From the provisions of the Married Women's Property 
 Act (r) already leferred to, it is evident that the import- 
 ance of the doctrine in cpiestion has been much diminished, 
 the several species of property therein mentioned being 
 now entirely set apart for a wife's separate use. The Act, 
 however, does not in the least prejudice her rights with 
 respect to property not included in the Act, as to which 
 her equity to a settlement remains on the same footing 
 as before. Nor has it any application to persons married 
 before the 9th August, 1870. 
 
 II. Cliaracteristics of the Frincij^Ic. 
 
 LADY ELIBANK v. MONTOLIEU 
 
 [5 Yes. 737 ; 1 W. & T. L. C. 464] 
 
 is the leading authority which decides that a married 
 woman is entitled on her bill in equity to a provision in 
 favour of her and her children out of personal estate 
 comino" to her as next of kin of an intestate. The facts 
 were briefly as follows : — 
 
 In 1795, Lady Cranstown died intestate, possessed of 
 large personal property, leaving two brothers and two 
 sisters her next of kin. Lewis ]\Iontolieu, one of her 
 brothers, took out letters of administration to her. The 
 bill was filed by Lady Elibank, one of the sisters, against 
 her husband Lord Elibank, and against Montolieu, praying 
 an account of the plaintiff's share, and that it might be 
 settled on her and her family, 
 
 Montolieu by his answer claimed to retain Lady Elibank's 
 share towards satisfaction of a debt due to him by Lord 
 Elibank upon certain bonds, upon the ground that a provi- 
 sion was made for the plaintiff by a settlement previous to 
 her marriage. 
 
 ()•) 33 & 34 Vict. c. 93.
 
 CHARACTElllSTlCS OF THE PRINCIPLE. 365 
 
 Loixl Chancellor Louguhorough decided that the ad- 
 ministrator had no right to retain ; he was trustee for tlie 
 next of kin, and the plaintiff being one of them, if she had 
 any equity against her husband with regard to tlie mone}', 
 that equity would clearly bar any right of retainer on the 
 part of the administrator. The only difficulty in the case 
 was whether a married woman, by her next friend, could 
 be the plaintiff in that Court ; but if she was entitled, 
 and there was no way of asserting her right against her 
 husband except by a bill, that objection did not weigh 
 much. If Montolieu had done the right thing, and what 
 he certainly would have done but for his own interest, he 
 would have been the plaintiff desiring the Court to dispose 
 of the fund. Then it was very clear that it would have 
 been a matter of course to have pronounced upon the 
 wife's equity. The money would not have been suffered to 
 be paid to Lord Elibank without making a provision for 
 her, the provision upon her marriage being clearly not 
 adequate to her fortune. 
 
 It was declared that Montolieu was not entitled to retain 
 in satisfaction of the debt due from the defendant, Lord 
 Elibank, to him, but that the distributive share accruinp" 
 to the plaintiff was subject to a further provision in favour 
 of her and her children ; and it was referred to the Master 
 to take the accounts and see that a proper settlement was 
 made accordingly. 
 
 The interest of children in their mother's ecpiity was the 
 subject of discussion in 
 
 MURRAY V. LORD ELIBANK 
 
 [10 Ves. 84 ; 13 V'es. 1 ; 1 W. & T. L. C. 471]. 
 
 Lady Elibank, the plaintiff in the above-mentioned case, 
 having died intestate before the Master had made the 
 report therein directed, a bill was filed by the infant 
 children of Lord Elibank, stating the proceedings in that 
 case, and praying that it might be declared that the 
 plaintiffs and the defendant Alexander Murray, another
 
 WIFE S EQUITY TO A SETTLEMENT. 
 
 cliild of Lord and Lady Elibank, had a right to have a 
 provision made for them out of their mother's share of the 
 personal estate of Lady Cranstowii, and that it might be 
 referred to the Master to approve of a proper settlement 
 accordingly. 
 
 To this bill the defendant Montolieu demurred, on the 
 ground that the equity to a settlement out of a married 
 woman's property depended entirely on her desire, and that 
 the Court would not refuse her the power of giving the 
 property to her husband. 
 
 Lord Eldon overruled the demurrer, observing that 
 by the filing of the bill the Court became a trustee of 
 the property, and thus the former trustee had no longer a 
 right of dealing with the property ; that decrees of the 
 Court were only declarations of the rights of the parties 
 when they began to sue. The wife had been declared to 
 have a right to a provision for herself and her children, and 
 had never waived that right. Though the right of the 
 children depended upon the will of their mother, yet where 
 an order had been made, and there had been no change of 
 opinion exj)ressed by her, it was not the practice to allow 
 the husband to avail himself of the death of his wife to 
 take the fund. The principle must be that the wife 
 obtained a judgment for the children, liable to be waived 
 if she thought proi3er ; otherwise to be left standing for 
 their benefit at her death. 
 
 1. Tlie rights of the children. 
 
 The right to a settlement enjoyed by a married woman, 
 may not as a rule be insisted upon by her, for her exclusive 
 benefit. When from the nature of the estate or fund in 
 question, provision can at the same time be made for her 
 children, this is invariably done. Her equity and the 
 equity of the children arc treated as one equity, and if 
 asserted it must bo asserted for their common benefit (s). 
 but uuiy Nevertheless, the power of asserting it is strictly personal 
 
 (s) Johnson v. /., 1 J. & W. 472, 479.
 
 RIGHTS OF THE CHILDREN. 367 
 
 to the wife. It rests completely in her option whether it wife can 
 shall be enforced or not. If, therefore, she dies without 
 having taken any steps to claim it, the children cannot set 
 up a claim (t). Further, the wife may at any time before 
 the settlement is completed, waive her right to it, and thus She mcay 
 defeat the interest of her children (u). But if, as in the ^^'^^ 
 case of Murray v. Elihank, a decree of reference has been 
 made to approve a proper settlement, and then the wife 
 dies without having waived it, the children are then entitled 
 to the benefit of the decree, even though they may not 
 have been mentioned therein {x). 
 
 The making of the decree marks the exact point at Children's 
 which the right of the children attaches. The fact that "ttaches 
 proceedings have been commenced by the wife to secure a on decree, 
 settlement is not sufficient {y). Still less would notice given 
 by her to trustees in whom the fund was vested avail {£). 
 But the right of the children will attach when the Avife or on con- 
 has entered into a contract with her husband or with *'"'?'?,* ^"^^ 
 
 settle- 
 
 her husband's assignees for a settlement of her pro- ment. 
 perty {a). 
 
 Where, therefore, such a decree has been made or con- 
 tract entered into, the children have a vested right to a 
 provision, which is, however, liable to be divested by a 
 waiver of the right by the wife (6) ; but her death without 
 waiver will not prejudice it. This position continues until 
 the execution of the settlement decreed or agreed upon ; 
 from which time, the right of the children becomes 
 indefeasible, the wife having no longer the power to 
 waive it (c). 
 
 Having already seen that a married woman's equity to a 
 settlement may now be generally asserted by her as against 
 
 [t] Scrlren v. Tapleij, 2 Eden, 337. Beav. 344 ; Llo>/d v. Mason, 5 Ha. 
 
 (m) Hod'jens v. //., 11 Bli. N. S. 149. 
 104 ; Lloyd v. Williams, 1 Madd. {z) Wallace v. Auldjo, 2 Dr. & S. 
 
 450, 467. 216, 222. 
 
 {x) Roioe V. Jackson, Dick. 604 ; {a) Lloyd v. Williams, sup. 
 
 Grovesv. Perkins,Q 8im.58i; 1 Kee, (b) Fenncr v. Taylor, 2 Kuss. & 
 
 132. M. 190. 
 
 {y) De la Garde v. Lcmpriere, 6 (c) Barker v. Lea, 6 Madd. 330.
 
 'SGS wife's equity to a settlement. 
 
 her husband and his assignees whether in bankruptcy or 
 for valuable consideration, the next consideration is as to 
 Avhat proj^erty is affected by her right. 
 
 2. Out of what lyroiJcrty a settlement can he claimed. 
 
 In the consideration of the different species of property 
 
 affected by a wife's equity to a settlement, we shall be 
 
 assisted by first observing two general principles respecting 
 
 the doctrine. 
 
 The equity (1.) The equity to a settlement does not attach on what 
 
 attaches ^ "^^'^^^ takes in her own right, but upon what the husband 
 
 t.. wliat takes in right of the wife. Thus if property descends upon 
 
 takes iu a married woman as tenant in tail, whatever her right to a 
 
 Avife's provision out of the income, which her husband would at law 
 
 right. ■•• 1-11 • 1 
 
 be entitled to receive, she would have no equity to a settle- 
 ment out of the covims, to which the law gave him no 
 claim in right of his wife (a). 
 It only (2.) The equity to a settlement attaches not on the pro- 
 
 the^ri'^ht*^^ pei'ty itself, but on the right to receive it; that is to say, it 
 to receive only ai'ises on the husband's legal right to present possession. 
 l)erty!^° Thus a wifo caiiiiot claim a settlement out of a rever- 
 sionary interest in property as long as it continues rever- 
 sionary (e). 
 
 Bearing in mind these general principles w^e shall the 
 more easily follow the classification of those species of 
 property subject to the obligation of a settlement. 
 Generally From the nature of the case it is evident that we have 
 ableesHtes ^^ ^ ^'^^^*^ ^^^^^ ^^ ^'^^ with equitable estates and interests, 
 considered, Such property as the husband could recover at law without 
 the assistance of a Court of equity is unaffected by a 
 doctrine which took its rise merely in the form of a condi- 
 tion imposed by equity on the granting of its assistance (/). 
 And though by the Judicature Act {g) equitable estates 
 and interests are now recognisable in Courts of law, this 
 
 (d) Life Assoc, of Scotland v. Sid- {f)'BntseeEuffles v. Ahton, 19 Er. 
 did, 3 De G. F. & J. 271 ; Be Cum- 539, 546. 
 
 mint/, 2 ibid. 376. (y) 36 & 37 Vict. c. 66. 
 
 (e) Osborn v. Morgan, 9 Ha. 434.
 
 CHAKACTElilSTlCS OF THE PRINCIPLE. 369 
 
 makes no difference, inasmuch as, by the same authority, 
 the wife's equity would likewise be enforceable there. If, though 
 however, the property, though in its nature legal, becomes pi'rty,^\T' 
 from collateral circumstances the subject of a suit in equity, subject to 
 
 11,.,. r a • rn " ^^it, is 
 
 it was held m the important case oi oturgis v. ijlicnn'p- liable. 
 neys (It) that the wife's equity attached, Lord Cottenham 
 considering that whatever cause brought the parties before 
 the Court brought them within the operation of the 
 maxim, " That he who seeks equity must do equity " {I). 
 Thus, also, wliere a married woman was legal tenant in 
 tail in possession of an estate which was subject to an 
 equitable term of 3'ears to secure a jointure, the existence 
 of the term was considered sufficient to entitle the wife to 
 claim a settlement, the title to the rents being equitable 
 as long as the term lasted {]). 
 
 The equity to a settlement, then, clearly attaches upon Ecjuitable 
 equitable choses in action to which the husband becomes action and 
 entitled in the ridit of his Avife (A). Though in some estates fee 
 circumstances a settlement for life may be made out of an 
 equitable estate of inheritance, equity wall not interfere 
 with the possible estate by curtesy of the husband (/). 
 The fact, moreover, of a legacy being charged upon land, 
 with a power of entry and receipt of the rents and profits, 
 does not so deprive it of its equitable character as to in- 
 terfere with the wife's right {in). 
 
 Where a husband in the right of his wife becomes Leaseholds 
 entitled to a legal interest in leaseholds, the wife cannot ^^^ ' 
 claim a settlement thereout, and the husband can effectually 
 dispose of them by sale or mortgage {n). But if the legal equitable, 
 estate of leaseholds is in a trustee for the wife, it is now 
 clearly decided that any disposition the husband may make 
 is subject to his wife's equity (0). 
 
 [h) 5 My. & Cr. it7 ; and see & J. 139. 
 Gleaves v. Paine, 1 De G. J. & S. 87. (/) t^'mith v. Mattheus, sup. 
 
 {(') See also Ostrell v. Probert, 2 (m) Dunccmle v. Greenacre, 28 
 
 Ves. jr. 680. Eeav. 472 ; 2 De G. F. & J. 509. 
 
 (j) Wortham v. Pcmlcrton, 1 De (») JlatcJiell v. Eqqlcss, 1 Ir. Cb. 
 
 G. & Sm. 644. 21.^ ; Hill v. Edmonds, 5 De G. & S. 
 
 (k) Burdon v. Dean, 2 Ves. jr. 603. 
 607 ; Smithv. Matthens, 3 De G. F. {o) Hanson v. Keating, 4 Ha. \. 
 
 B 15
 
 370 wife's equity to a settlement. 
 
 Life There are some important observations to be made 
 
 interests , ^ '- 
 
 when sub- with rcspect to a wife's right to a settlement out of property 
 settlement ^^ ^vliich she has Only a life interest. It is clear that if a 
 husband fails to maintain his wife, whether by desertion 
 or through becoming bankrupt, she will then be entitled to 
 a settlement out of an equitable life interest as against him, 
 and also against any one claiming under him by virtue of 
 an assignment for value made previously to the desertion or 
 bankruptcy (p), and, therefore, a fortiori against his general 
 assignees in bankruptcy (q). It is also clear that if the 
 husband is living with and maintaining his wife, she can- 
 not claim a settlement out of a life interest against a jDar- 
 ticular assignee for value of her husband (/') ; and if such an 
 assignment has been made it cannot be disturbed by any 
 subsequent misconduct of the husband in not maintaining 
 her (s). The right of a general assignee in bankruptcy 
 only arises in case of the husband's incapacity to maintain 
 his wife, and that incapacity at the same time raises the 
 wife's 'equity, so that her claim is good against such general 
 assignee {t). The only case which remains to be considered 
 is whether a wife can claim her equity out of a life interest 
 as against the husband himself as long as he continues to 
 live with and maintain her. It is for two reasons submitted 
 that she cannot. In the first place, the equity to a settle- 
 ment is as a rule exerciseable by a wife only on behalf of 
 herself and her children together, so much so that out of a 
 fund in which she has an absolute interest she cannot claim 
 a settlement on herself alone, to the exclusion of her 
 children (w). But her children can have no provision made 
 out of an interest which ceases with her life ; so that her 
 equity does not in this case stand on the sp.me ground as 
 in the other. Secondly, in consideration of maintaining 
 
 (p) Stun/is V. Cliampneijs, 5 My. (.v) Ihkl. 870 ; In re Carr's Tr., 
 
 & Cr. 97 ; Wright v. Morley, 11 Ves. VI Eq. 609. 
 
 12 ; Elliott V. Cor.!ell, 5 Mad. 149. (t) Elliott v. Cordell, svp. 
 
 (q) Lumb V. Milnes, 5 Ves. 517. («) De la Garde v, Lcmprierc, 6 
 
 (r) Tidd V. Lister, 3 De G. M. & Beav. 344. 
 G. 857, 869.
 
 TO WHAT PROPEIxTY IT ATTACHES. 371 
 
 his wife, the law vests the income of a legal interest entirely 
 in the husband, and equity so far follows the law that in 
 the absence of some special circumstance, such as desertion 
 or insolvency, the practice is, even in the settlement of an 
 absolute interest, to direct payment of the entire income 
 to the husband. It would follow, therefore, that if there 
 is no interest beyond an income for life, the wife cannot, as 
 long as her husband maintains her, claim payment of any 
 portion of it to herself It was, moreover, so decided in 
 Yanglian v. Buck (x), even though the wife there alleged 
 that her maintenance was inadequate, and that her husband 
 was in embarrassed circumstances. If this be correct, the 
 head-note to the recent case of Taunton v. Morris (y) is 
 misleading. The question did not in that case strictly arise, 
 as the dispute there was between the wife and the husband's 
 general assignee, he being insolvent, and turned exclusively 
 on the amount which was proper to be settled. It decides 
 that as to the amount of the settlement there is in a case 
 of a husband's insolvency no difference to be regarded 
 between corpus and income, or between an absolute and a 
 life interest ; but it does not purport to, nor does it in fact, 
 overrule the case of Vaughan v. Buch (s), already referred 
 to. It is true that this case was dissented from in Wilkin- 
 son V. CharlcsworfJt and Marsack v. Lyster (a) ; but those 
 cases W'Cre decided on other grounds, and are, as far as 
 the present question is concerned, more than counteracted 
 by the subsequent and higher authority of Tidd v. Lister (h). 
 
 It is clear, moreover, that a wife is not entitled to any Arrears of 
 settlement out of arrears of income accruing due before 
 she has set up any claim thereto. Such income will be 
 paid to her husband or his assignees (c). 
 
 3. Waiver of settlement. 
 
 We have seen that as a general rule it is within the 
 
 (x) 13 Sim. 404. (b) 10 Ha. 140; 3 De G. M. & 
 
 (,y) 11 Ch. D. 779. G. 857, 869, 870. 
 
 {z) Sup. {c) Neivman v. Wilson, 31 Beav. 
 
 (ft) Reported together, 10 Beav. 34 ; In re Carrs Tr., sup. 
 324, 327. 
 
 B B 2
 
 •372 wife's equity to a settlement. 
 
 option of a married woman to bar lier own equity and tliat 
 of licr children by waiving ber right to a settlement. It 
 is, therefore, material in the next place to inquire by what 
 means the waiver maybe exercised, and to what limitations 
 it is subject. 
 Consent to n\ Generally her consent to her husband receiving her 
 
 waive ^ ' "^ ... 
 
 settlement property must be formally taken by her examination in 
 "iken by ^^ourt ((?), or before a commission issuing from the Court (e). 
 Court or Neither her husband nor any person connected with him 
 si(,n^ * should be present at the examination (/). 
 imless The consent of the wife is not requisite where the fund 
 
 less than ^^ Under £200, though in these, as indeed in all cases (g), 
 £200. before payment, it must be shown that it is not already in 
 
 settlement (h). 
 \\Len /2.) It is not in all cases and at all times open to a 
 
 there , . , ■"■ 
 
 cannot be married woman to Vv'aive her right. Thus she cannot do 
 ^^'^^^^^' so during infancy (/). A female ward of Court married 
 
 Infant. . Y i • 
 
 ■^y.,j.j of Without its authority cannot consent {/i), except, perhaps, 
 Court. where the marriage has been with the consent of her 
 guardian (I). When, moreover, a ward of Court is 
 domiciled in a country where the principle of an equity 
 to a settlement is not recognised, the Court will not part 
 Avith her funds unless satisfied that a proper provision has 
 been made fur her (r^i). 
 Fund must Further, consent will not be taken until the amount of 
 
 be ascer- -i n t ■ ■ ■ • -ti • -i i • ^ 
 
 tained. the luiid in question is ascertained {7}) ; nor will it be bind- 
 ing if it has been made under the influence of mistake (o). 
 Consent to Notwithstanding that consent has been o-iven, it may be 
 
 waive o > J 
 
 may be retracted at any time before the payment to the husband 
 is made, or the transfer completed (y^) ; and ajmrt from 
 
 {d) Beaumont v. Cartel', 32 Beav. (/,) Stackpoole v. Beaumont, 3 Ves. 
 
 586, 590 ; zn/m, p. 374. 89. 
 
 (r) Tasburr/h's Case, 1 V. & B. (?) Bennett v. Biddies, 10 Jur. 534. 
 
 507. (m) In re Ticeedales Settlement, 
 
 (f) In re Bendijshe, 3 Jur. N. S. Johns. 109. 
 
 727. [n) Edmunds v. Tow nshcnd,! Anst. 
 
 iff) Britten v. B., 9 Beav. 143. 93. 
 
 *(A) Ehrortliy v. Wickstead, 1 J. & (o) Watson v. Marshall, 17 Beav. 
 
 W. 69. 363. 
 
 (0 Stulbs V. Sarjon, 2 Beav. 496. { p) Pcnfold v. Mould, 4 Eq. 562. 
 
 waive 
 may 1: 
 retracted.
 
 WHEN BARRED. .'5/'^ 
 
 that, the Court has power to postpone in its discretion tlie 
 payment or transfer (g). 
 
 4. What circumstances ivill bar the equity to a settle me tit. 
 
 Not merely may a married woman deprive herself of her 
 equity to a settlement by a voluntary waiver, but there 
 are many circumstances apart from such consent which will 
 effectually^ prevent her assertion of the right. Thus, — 
 
 (1.) Where the property, whether corpus or income, has Reduction 
 once come to the hands of the husband, the wife can no "'*"• ^^^^' 
 
 ' session. 
 
 longer claim her equity. And no transfer or payment so 
 made by a trustee before action brought can be afterwards 
 disturbed (r). 
 
 (2.) When a woman, at the time of her marriage, owes Wife in- 
 more than the whole amount of her property, she has no ^" ^'"*" 
 equity to a settlement out of it {s). But the mere fact of 
 her having been indebted at that time would not prevent 
 her claiming a settlement out of so much of the fund as 
 remained after making provision for the jDayment of the 
 debts {t). Her equity is also lost when her husband is 
 indebted to the estate to an amount exceeding the wife's 
 interest {u). 
 
 (3.) If an adequate settlement has already been made Atlequate 
 upon her, the wife's equity to a settlement is thereby barred lireaX''"*^ 
 for the future (v). It may also be barred by an express ^^''e- 
 stipulation to that effect made before marriage, even thouo-h 
 the settlement were inadequate {x). If the original settle- 
 ment is adequate, it is not essential that it should have 
 been made by the husband (?/). 
 
 (4.) The equity to a settlement may be lost by the Alienation 
 alienation by the wife of the propert}'- concerned. It is ^J.^^^^ 
 necessary, therefore, here to consider by what means such 
 alienation may be effected. 
 
 (q) Wrigid v. Ruttcr, 2 Ves. 673, (m) KnigU v. K, 18 Eq. 487. 
 
 677. {'■) In re ErsUnc's Tr., 1 K. & J. 
 
 [r) Milner v. Calmer, 2 P. Wnis. 302. 
 
 639, 641 ; Allday v. Fletcher, 1 De [x) Sahvay v. S., Amb. 692 ; Gar- 
 
 G. & J. 82. ' forth v. Bradley, 2 Ves. .sr. 675. 
 
 (s) Bonner v. B., 17 Beav. 86. (y) Giacometti v. Prodjers, 8 Ch 
 
 {t) Barnard v. Ford, 4 Ch. 247- 338.
 
 0/4 WIFES K()UITY TO A SETTLEMENT. 
 
 ^^*° (i.) As to realty. By virtue of the Fines and Recoveries 
 
 realty. ^ ' j j 
 
 3 & 4 Act (c), and the Real Property Amendment Act (a), a mar- 
 p l^, ' ried woman may now dispose of her estates of freehold, and 
 8 & 9 Vict, may also release or assign any sum of money charged on 
 lands, or the produce of land directed to be sold, whether 
 her interest be in possession or reversion, by a deed duly 
 acknowledged by her, after separate examination before 
 a judge or two commissioners, and made with the concur- 
 rence of her husband. 
 
 She may also dispose of her copyholds by surrender, 
 jointly with her husband, on being separately examined by 
 the steward or his deputy, 
 (ii.) As to personalty. 
 I'er- A married woman's personal estate, as we have seen, 
 
 sonaltj. > • T 1 1 1 1 • 1^ • 1 
 
 vests m her husband on the marriage. Durmg tlie marriage, 
 therefore, she has no power of disposition over it, except in 
 case of property or powers falling within 20 & 21 Vict. 
 c. -57, presently mentioned. If her husband reduces her 
 choses in action into possession they become his. If not, 
 and his wife survives him, she will be entitled to them. 
 
 ^,°."-^^^_. By 20 & 21 Vict. c. 57 (commonly known as Malins' 
 Act), it IS enacted that, after the 31st of December, 1857, 
 it shall be lawful for a married woman to release or ex- 
 tinguish any power which may be vested in or limited to 
 or reserved to her in regard to any personal estate, as fully 
 and effectually as she could do if she were a feme sole, and 
 also to release or extinguish her right or equity to a 
 settlement out of any personal estate to which she, or her 
 husband in her right, may be entitled in possession, under 
 any instrument made after the 31st of December, 1857 (h). 
 Her husband must, however, concur in the deed effecting 
 this purpose, and the deed must be acknowledged in the 
 manner prescribed by the Fines and Recoveries Act above 
 quoted. 
 
 Kever- j^ ^las already been stated that a wife has no equity to 
 
 (2) 3 & 4 Will. IV. c. 74. {h) s. 1. 
 
 («) 8& 9 Vict. c. 106.
 
 ALIENATION BY MARRIED WOMEN. 375 
 
 a settlement out of reversionary interests, the equity swnary 
 
 '' 1 • 1 interests, 
 
 attaching not to the pro2oerty itself, but to the right to 
 receive it. Nevertheless, this is a convenient place in 
 which to consider her jDOwer of disposition over such in- 
 terests. 
 
 Previous to the year 1858 a married woman had no how 
 power to part with her reversionary interests in personal ' 
 property. Not even with the assistance of the Court could 
 she dispose of them (c). 
 
 But by 20 & 21 Vict. c. 57, above quoted, it was further 
 enacted that, "After the 31st of December, 1857, it shall 
 be lawful for every married woman by deed to dispose of 
 every future or reversionary interest, whether vested or 
 contingent, of such married woman, or her husband in her 
 right, in any personal estate whatsoever, to which she shall 
 be entitled under any instrument made after the said 
 31st day of December (except such a settlement as after 
 mentioned), and also to release or extinguish any power 
 which may be vested in or limited or reserved to her in 
 regard to any such personal estate as fully and effectually 
 as she could do if she were a feme sole . . . provided 
 always that nothing herein contained shall extend to any 
 reversionary interest to which she shall become entitled 
 by virtue of any deed, will, or instrument by which she 
 shall be restrained from alienating or affecting the 
 same " (cZ), 
 
 " Every deed to be executed in England or Wales by a 
 married woman for any of the j^urposes of this Act shall 
 be acknowledged by her in the manner prescribed by 3 & 4 
 Will. IV. c. 74 . . . and all and singular the clauses 
 and provisions in the said Act concerning the disposition 
 of lands by married women, including the provisions for 
 dispensing with the concurrence of the husbands of married 
 women . . . shall extend and be applicable to such 
 
 (c) PicJcard v. Roberts, 3 Mad. 5G. 
 384 r Purdeiv v. Jaclson, 1 Russ. 1, (cZ) s. 1.
 
 376 
 
 wife's equity to a settlement. 
 
 Fraud. 
 
 interests in personal estate as maybe disposed of by virtue 
 of this Act " (e). 
 
 " The powers of disposition hereby given to a married 
 woman shall not enable her to dispose of any interest in 
 personal estate settled upon her by any settlement or 
 agreement for a settlement made on the occasion of her 
 marriage " (/). 
 
 These provisions precisely define the extent of a married 
 woman's power over her reversionary interests in personalty, 
 and require to be strictly complied w4th in any assign- 
 ment thereof. 
 
 (5.) A married woman's equity to a settlement may be 
 barred by her fraud ; for instance, by her concealing the 
 fact of her marriage from a purchaser (g). 
 Adultery. ((J.) If a wife is living in adultery apart from her 
 husband, her right is generally barred (h) ; but if the 
 husband also is living in adultery, it is not so (/) ; nor if, 
 being a ward of Court, she marries without its consent (k). 
 
 Moreover, it seems that even in the absence of such cir- 
 cumstances, the husband will not be allowed to receive the 
 whole of the property of a wife who is living in adultery, if 
 he does not maintain her (I). 
 
 5. Amount of the settlement. 
 
 Where a wife has established her equity to a settlement, 
 and the amount to be settled is not agreed upon between 
 the husband and wife, the Court, in determining this, is 
 guided by a consideration of the circumstances of the 
 whole case (?)i). We shall consider separately the settle- 
 ment of income and the settlement of corpus. 
 
 (1.) As to income. 
 
 As a general rule, where the husband is solvent and has 
 been guilty of no misconduct, the Court will not interfere 
 
 Husband 
 usually 
 
 62. 
 
 (e) s. 2. 
 
 (/) s- 4. 
 
 ((j) In re Lash's Tr., 4 Ch. 591. 
 
 (h) Carrv. Eastah'oal; 4 Ve^. 14G. 
 
 (i) Greedy v. Lavender, 13 Beav. 
 
 (/.•) Ball V. Coidts, 1 V. & B. 292, 
 302, 304. 
 
 {1.) Ball V. iVon'i/omcri/, 2 Ves. jr. 
 191. 
 
 (m) Carter v. Taj(/arl, 1 De G. 
 M. & G. 289.
 
 AMOUNT OF THE SETTLEMENT. 377 
 
 with his legal right, but will allow him to receive the ^^^^^ 
 whole income of the property. Tt is satisfied with retain- 
 ing the capital, so as to give the wife a chance of taking it 
 by survivorship (n). 
 
 But if the husband deserts his wife and leaves her un- •^<'ci"< if lie 
 provided for, she is entitled to the payment of the income her. 
 of her property to herself [o]. 
 
 We have already seen that with respect to a life in- 
 terest, a wife is entitled, in the case of desertion by, or the 
 bankruptcy of, the husband, to a settlement on herself as 
 against the husband, or his trustee in bankruptcy, or 
 against an assignee for value, if the assignment has been 
 made subsequent to the desertion. And it has been 
 decided that such settlement may extend to the whole 
 of the income (p). As long as the husband supports 
 her, she cannot claim a settlement as against him, or 
 against his assignee for value (q). Even in the case of 
 a husband's insolvency, a settlement of income was refused 
 where the wife had already an adequate provision for her 
 separate use (r). 
 
 A woman cannot represent herself as deserted when she 
 refuses to accompany her husband on his removing to 
 another residence in the course of his business (s). If, 
 moreover, a husband having separated from his wife, a 
 decree has been made alloAving her a separate maintenance 
 out of income, on his subsequently consenting to cohabit 
 with and maintain her, the Court has refused to continue 
 the separate maintenance (t). The Court will, in short, 
 always encourage reconciliation and cohabitation between 
 husband and wufe, and is thus indisposed to allow a sepa- 
 rate maintenance to the wdfe unless the husband's neglect 
 
 (n) Sleechy.Thori)iyton,2Vesi.sir. (7) Supra, pY>. S70—1. 
 
 561 ; Atcheson v. A., 11 Beav. 48.5. (?•) Agu'dar v. A., 5 Madd. 414. 
 
 (0) Gilchrist V. Catoi; 1 De (jr. (s) Bullock \. Menzies, 4 Ves. 
 
 Sm. 188 ; Dunkley v. I)., 4 De G. 798. 
 
 & S. 570 ; 2 De G. M. & G. 390. {t) Head v. //., 3 Atk. 296 ; Gil 
 
 {p) Taunton v. Mwrist, 11 Cb. D. clo-iat v. Color, sup 
 779.
 
 378 
 
 WIFES EQUITY TO A SETTLEMENT. 
 
 One half 
 of capital 
 the rule, 
 
 l)ut subject 
 to discre- 
 tion. 
 
 Clrcum- 
 stanf'es of 
 infiueiice. 
 
 Usual 
 limitr- 
 tions. 
 
 ov cruelty, or other improper conduct, is such as to render 
 his wife's leaving him necessary or justifiable (ii). 
 
 (2.) As to capital. 
 
 The general rule, in the absence of special circum- 
 stances, is that one half of the wife's property shall be 
 settled upon her, and the other half go to the husband or 
 his assignees [x). 
 
 This is, however, quite a matter for the discretion of the 
 Court, which will take into consideration the amount of 
 the wife's fortune already received by the husband ; any 
 previous settlement which may have been made {y) ; 
 whether the wife has received any benefit out of the 
 husband's property {z); the conduct and circumstances of 
 the husband (a) ; and the conduct of the wife (6). 
 
 Circumstances may appear under these considerations 
 which will induce the Court to go so far as to settle the 
 whole fund on the wife. Where the husband has already 
 received a considerable fortune from her (c), where he 
 has become insolvent and no settlement hras been made {d), 
 and where he has deserted or behaved cruelly to his wife (e), 
 the whole fund has been settled ; and the same was done 
 where, in the absence of such circumstances, the fund was 
 small and barely sufficient for a provision for the wife and 
 children (/). 
 
 G. Form of the settlement. 
 
 The design of the settlement being to provide for the 
 wife and children, the Court will, as far as possible, accom- 
 plish this, but will not interfere with the marital legal 
 right farther than is necessary for this purpose. The usual 
 limitations will be, therefore, as to personalty, to give the 
 
 ((f) See Oxenden v. 0., 2 Vern. (i) Giacometti \. Prod[/ers, 14 'Eci. 
 
 493 ; Eedes v. £., 11 Sim. 569. 253 ; 8 Ch. 338. 
 
 {x) Jeivson v. Moidson, 2 Atk. (c) Gardner v. Marshall, 11 Sim. 
 
 417, 423 ; Spirett v. Willoxvs, 1 Ch. 575. 
 
 520. (d) Francis v. Brooding, 19 Beav. 
 
 {y\ Green v. Otte, 1 S. & S. 250 ; 347. 
 
 Napier v. N., 1 D. & W. 407. \e) Dunklcy v. D., 2 De G. M. & 
 
 (z) In re Ershines Tr., 1 K. & J. G. 390. 
 
 302. (/) In re Kincaid's Tr.. 1 Drew, 
 
 (a) Coster v. C, 9 Sim. 597. 326; 17 Jur. 106.
 
 FORM OF THE SKTTLE.MENT. 379 
 
 incomo either to the husband, or his assignee, or to the 
 wife for life for her separate use without power of anticipa- 
 tion, according to the circumstances above discussed, and 
 the corpus to her chikh-en after her death (7) ; if there 
 should be no issue the ultimate remainder will, it seems, 
 be to the husband absolutely, whether he survives the 
 wife or not {h). See, also, for a full discussion of the 
 subject, Spirett v. Willoios (Q. The fact of the husband's 
 insolvency, or his having assigned his interest, or of the 
 wife's relations being in humble circumstances, is not 
 sufficient reason for deviating from this rule in favour of 
 the wife, or her next of kin (/.;). 
 
 In the case of a small fund the expense of a settlement Settle- 
 has sometimes been avoided by ordering the fund to be sometimes 
 brought into Court, and directing payment of the dividends dispensed 
 to the wife during her life, and either declaring the trusts 
 at her death, or giving liberty to the persons entitled to 
 apply (/). 
 
 7. How far the settlement binds creditors. 
 
 Where the Court decrees a settlement upon a wife, it Settlement 
 will be supported as a good settlement for valuable con- ^^^^ coq. 
 sideration (m). sideration. 
 
 Further, if after marriage property accrues to the hus- 
 band in right of the wife, which the husband cannot reach 
 without the aid of the Court, and by agreement he consents 
 to such a settlement as the Court would have ordered, 
 this settlement will be maintained against creditors (n). 
 
 Even if trustees in possession of the property of a 
 married woman should, on the mere request of her hus- 
 band, transfer it to new trustees upon trust for her sepa- 
 rate use, such trust will be good as against his creditors (o). 
 
 (.7) Gent V. Harris, 10 Ha. 383. 220. 
 
 (h) Carter v. Taggart, 1 De G. M. [vi) Wheeler v. Caryl, Amb. 
 
 & G. 286 ; Croxton v. Matj, 9 Eq. 121 ; Simson v. Jones, 2 R & M. 
 
 404 ; Walsh v. Wason, 8 Ch. 482. 365. 
 
 {i) 4 Ch. 407. (n) Wheeler v. Caryl, sup.; Lire 
 
 (k) Carter v. Taggart, 1 De G. M. Wray's Tr., 16 Jur. 1126. 
 
 & G. 286. (n) RyJnnd v. Smith, 1 My. & Cr. 
 
 (I) Bagshaw v. Winter, 5 De G. & 53. 
 Sm. 468 ; In re Cutler, 14 Beav.
 
 380 
 
 WIFK's KQriTY TO A SETTLEMENT. 
 
 But if the husband has once reduced into possession 
 the equitable choses in action of his wife, any subsequent 
 settlement of them must conform to 13 Eliz. c. 5, or it will 
 be void as against creditors (p). 
 
 Payment 
 to hus- 
 band. 
 
 Transfer 
 into his 
 name. 
 
 Suit by 
 husband 
 and wife. 
 
 III. licduiilov Into Possession hy Hndxriid of Wifes 
 Proiievty. 
 
 Havinef seen that a husband's right to his wife's choses 
 in action depends upon his reducing them into possession, 
 we are led by this case to inquire what acts amount to a 
 reduction into possession. 
 
 1. The clearest case is of course where the husband 
 actually receives payment of the sum in question — for 
 instance, a sum due to her on a mortgage {q). If, however, 
 he so receives money in the character of trustee, this will 
 not amount to a reduction into possession (r). 
 
 2. The transfer of a wife's stock into her husband's solo 
 name, or even a transfer by his direction into the names 
 of trustees, upon trusts inconsistent with his wife's equity 
 amounts to a reduction into possession (s). But if such 
 transfer, or the investment of stock belonging to the wife, 
 be effected in a manner consistent with her equities, the 
 case will be otherwise, and her right by survivorship will 
 remain (f). 
 
 3. If a husband and wife together sue to recover choses 
 in action which belonged to the wife before marriage, 
 judgment in the action amounts to reduction into posses- 
 sion by the husband {u) ; though if he dies after judgment, 
 but before execution, the judgment will survive to the 
 wife (.r). But if the husband sues in his OAvn name for a 
 chose in action accruing to his wife during the marriage, 
 
 [p) llkl. Goldsmith v. Russell, 5 
 De G. M. & G. 547. 
 
 (q) Rees V. Keith, 11 Sim. 388. 
 
 (?•) Baler V. ffvM, 12 Ves. 497 ; 
 Wall V. Tomlinsoir, 16 Ves. 413. 
 
 (s) Havsen v. Miller, 14 Sim. 22. 
 
 (0 Rylaml v. Smith, 1 My. & C. 
 53. 
 
 (ii) Shervirt'jton v. Yeites, 12 M. & 
 W. 855. 
 
 (.r) Bond v. Simmons, 3 Atk. 21.
 
 KEDUCTION INTO POSSESSION. 381 
 
 and dies after judgment, his representatives, and not the 
 wife, will be entitled {ij). 
 
 4. Where the income of a married woman's life estate Receiver, 
 had been ordered to be received and applied by a receiver 
 
 in a suit in payment of her husband's incumbrances, it 
 Avas held that arrears of income in the receiver's hands 
 which had not been paid as directed Avere by the effect of 
 the order reduced into possession {z). 
 
 5. A sale by a husband of his wife's choses in action, Sale by 
 followed by the purchaser's taking possession, will amount 
 
 to a reduction into possession («). 
 
 The general result is that any act which has the effect Geneial 
 of changing the property in the choses in action will P""^*^^!' *^- 
 amount to a reduction thereof into possession (&). But 
 acts which do not amount to this will not suffice. Thus 
 there has been held to be no reduction into possession 
 where there was a fund set apart for payment to the 
 husband (c), where interest only had been paid to the 
 husband (J), where the husband proved against the estate 
 of a bankrupt indebted to his wife, but died before the 
 declaration of a dividend {e). On the same principle, 
 payment of a part of a fund only amounts to reduction, 
 into possession 'pro tanto (/). As to a reversionary interest, 
 an assignment, whether particular or general, could not 
 suffice to bar the wife's right by survivorship (g). 
 
 If a husband fail actually to reduce his wife's choses in 
 action into possession during her lifetime, he wdll, upon her 
 death before him, be entitled to them as her administrator, 
 provided that he has not already made an assignment of 
 them, which though ineffective against her if she survived 
 him, would be valid as against himself. If he dies with- 
 
 (y) Otjhuuler v. Baston, 1 Vern. (c) Blunt v. Bestlnnd, 5 Ves. 515. 
 
 396. ((/) IhicL; Iloicman v. Cone, 2 
 
 (z) Tidd V. Lister, 2 W. R. Vern. 190. 
 
 18-i ; 3 De G. M. & G. 857. (e) Avon, 2 Vern. 706. 
 
 (fl) Widjery v. Tepper, 5 Ch. D. (/) Nash v. N., 2 Madd. 133, 
 
 516. 139 ; Scrutton v. Patcllo, ly Ec^. 369, 
 
 (b) Aitchesoii v. Dixon, 10 Eq. 373. 
 
 5S9. iy) Hornsby v. Lee, 2 Madd. 16.
 
 382 wife's equity to a settlement. 
 
 out taking out letters of administration, his personal repre- 
 sentative may become entitled by doing so (h). 
 Assifrn- ''p}^Q 1-^1^3 is now well established that a husband by 
 
 ment by ..,..„,, . . . i. ax ' 
 
 husband, assignmg his wiie s choses m action can give no better 
 right to another than he has himself. If the wife survives 
 the husband the assignee of a reversionary interest can 
 take nothing. If the husband survives the wife the 
 assignee is entitled to the property (i). 
 Keversion- ^g to reversionary interests in particular, whether the 
 terests. liusband after the assignment dies in the lifetime of the 
 tenant for life, so that the chose in action cannot be re- 
 duced into possession, or whether he survives her without 
 having actually reduced it into possession, the result is the 
 same — the chose in action will survive to the wife (/i;). 
 Moreover, a release by a husband of a reversionary chose 
 in action of his wife is as inoperative against his wife as 
 his assignment would be (/). 
 
 IV, Fraud on Marital Rights. 
 
 In the principles we have discussed respecting the 
 separate estate of a married woman and her equity to a 
 settlement, we have found the interference of equity 
 directed to the design of granting relief in favour of the 
 wife against the operation of the strict rules of ancient 
 common law. From the case of 
 
 STRATHMORE v. BOWES 
 
 [1 Ves. sr. 22 ; 1 W. & T. L. C. 446] 
 
 we learn that on the other hand ecpiity will sometimes assist 
 a husband to the assertion of a right in circumstances in 
 which he would have been without any remedy at law. 
 In this case, Lady Strathmore, being possessed of con- 
 siderable property, real and personal, pending a treaty of 
 
 (A) In the rjoods of Ilardnig, 2 P. (/,) imison v. Elwin, 13 Sim. 309. 
 
 & D. 394. (/) lio'jers v. Acaster, 14 Beav. 
 
 ((■) P'urdew V. JacJo'oii, 1 Riiss, 1, 445,
 
 FRAUD ON MARITAL RIGHTS. 383 
 
 marriage with Mr. Grey, conveyed, and assigned, with the 
 approbation of Mr. Grey, all her estate to trustees for her 
 sole and separate use, notwithstanding any future cover- 
 ture. 
 
 A few days after, hearing that Mr. Bowes had fought a 
 duel on her account, she determined to marry him, and 
 did so on the next day. Bowes had no notice of the 
 settlement. 
 
 There were two bills — an original bill by Lady Strathmore 
 to set aside a deed revoking the settlement, as having been 
 obtained by duress, and a cross-bill by Bowes to set aside 
 the settlement as against the rights of marriage, and to 
 establish the deed of revocation. 
 
 An issue having been directed to try whether the deed 
 of revocation had been obtained by duress, the venlict 
 was against the deed. The cause coming on upon the 
 equity reserved, there was a decree in favour of Lady 
 Strathmore dismissing the cross-bill with costs. It came 
 on again for a rehearing and reversal of that decree so far 
 as it dismissed the cross-bill. 
 
 It was held under the circumstances that the settle- 
 ment should be established, there being insufficient evidence 
 of fraud ; the principle was, however, fully recognised that 
 a husband may in a proper case come into equity, and 
 claim its assistance against a settlement of the wife's pro- 
 perty which is concealed from him. 
 
 1. Statement of the 2'>nnclple. 
 
 This case, though under the circumstances there was General 
 held to be no fraud on marital rights, is usually referred P^'^'^'^^P ^~- 
 to as a leading authority on the subject, because of the 
 lucid statement therein contained of the principle con- 
 cerned. The chief ground on which the decree rested 
 was that there the settlement was not made in the course 
 of the treaty of marriage with Bowes. There was, there- 
 fore, no fraud upon him, and the deed being prinid facie 
 good, remained so, he having no equity to set it aside. 
 
 The first corollary from that case, therefore, is that it
 
 384 FRAUD ON MAIUTAL RIGHTS. 
 
 is necessary for a person impeaching a settlement to prove 
 that at the time of its execution he was the then intended 
 husband. He must to show tliat the settlement was made 
 during the course of the treaty for marriage with him (in). 
 If this is so, and the woman during the treaty for 
 marriage holds herself out as entitled to property, and 
 then convej's or settles it witliout the knowledge or con- 
 currence of the intended husband, actual fraud Avill be 
 imputed to her, and the deed will be set aside in 
 equity (riV 
 
 The principle has been can led in some cases farther 
 than this. In Goddard v. Sauiu (o) there was no active 
 deception of the intended husband, Avho was, it seems, not 
 aware of the existence of her j^roperty. Yet a settlement of 
 which he had not been informed was set aside after an interval 
 of ten }'ears, as being a Iraud upon his marital right (p). 
 
 It has been (piestioned whether a meritorious considera- 
 tion will suffice to support a settlement, notwithstanding 
 concealment from an intended husband — for instance, the 
 fact that the settlement has been made in favour of children 
 of a former marriage. If such a settlement is made pre- 
 vious to a treaty for a second marriage it is doubtless 
 good (q), but it seems that if made during the treaty for 
 marriage, the fact of there being a provision for children 
 will not render valid a settlement which would on other 
 grounds be fraudulent (r). 
 
 2. What circumstances vjill render the settlement 
 
 valid. 
 
 Valuable 1. A transfer for valuable consideration to a purchaser 
 
 tion^^ ^^' ^^'ithout notice of any intended derogation of the marital 
 
 right will be held g(jod (s), and probably the purchaser's 
 
 right would be sustained even if he acted with notice (t). 
 
 (ill) Enfjlaml v. Downs, 2 Beav. (7) Klny v. Cotton, 2 P. Wins. 
 
 622. 674. 
 
 [u) Ibid.; Lance v. Norman, 2 Ch. (/•) Taylor v. Pwjh, sup. 
 
 Rep. 79. (.s) BJanchct v. Foster, 2 Ve,s. .«r. 
 
 (0) 1 Russ. 485. 264 ; Llewellyn v. Cobbold, 1 Sm. & 
 
 (p) Doicncs V. Jenninr/s, 32 Beav. G. 376. 
 
 290 ; Taylor v. Pwjh, 1 Ha. 608. (t) Ibid.
 
 FRAUD ON MARITAL RIGHTS. 385 
 
 2. If the husband knew of the gift or settlement during Know- 
 the treaty for marriage, although he may not have been husband, 
 informed of it by the intended wife, he will not be able 
 
 to set it aside (ii) ; much less if he concurs in it (x). If, 
 moreover, after marriage he acquiesces in or confirms the 
 settlement, he will not be allowed to dispute it (?/). Mere 
 delay in seeking relief, however, will not necessarily 
 amount to acquiescence (z). 
 
 3. If the husband has before marriage seduced his in- Seduction, 
 tended wife, and so deprived her of her liberty of action, 
 
 any settlement she may have made will be sustained 
 against him (a). 
 
 4. In the absence of any representation made as to Limits of 
 specific proj^erty, tliere is no implied contract of the lady ^ipi^"'^" 
 that her property shall be in no way diminished during 
 
 the treaty for marriage. It is for the Court to determine 
 Avhcthcr, having regard to the position of the parties and 
 the circumstances of tlie case, the transaction should be 
 treated as fraudulent or not (h). 
 
 {u) St. Gcm-f/ev. Wale, 1 My. & 317. 
 
 K. 610 ; Ashton v. McDowjall, 5 (:.) Downcs v. Jenninys, sup. 
 
 Beav. 56. {a) Tat/lor v. Pugh, sup. 
 
 {x) Slocombe v. Gluhb, 2 Bro. C. C. (b) De MandevlUe v. Crompton, 1 
 
 545. V. & B. 354 ; Taylor v. Pwjh, 
 
 [y) Maber v. Hohhs, 2 Y. & C. Ex. sup. 
 
 C C
 
 386 
 
 CHAPTER VIII. 
 
 INFANTS. 
 
 I. Guardianshii'). 
 
 Eyre v. Countess of Shaftesbury. 
 
 1. Obsolete species of Guardianship. 
 
 2. Guardianship of Parents. 
 
 3. Testamentary Guardians. 
 
 4. Guardians appointed hy a Stranger. 
 
 5. Guardians appointed by the Court. 
 II. Maintenance. 
 
 1, Out of what Property directed. 
 
 2. In ivhat circur)istances. 
 III. Advancement, 
 
 1. Under a Poiver. 
 
 2. In absence of a Poiver. 
 
 Note. — Jurisdiction as to Lunatics. 
 
 Guardian- I. APARTfrom statutory enactments, the Court of Chancery 
 ^^^' from the earliest times exercised a very beneficial juris- 
 
 diction over infants ; and that jurisdiction has now 
 been conferred upon the Chancery Division of the High 
 Court of Justice (a). The greater part of the law respecting 
 this subject relates to the incidents and characteristics of 
 guardianship ; the first and most important duty before 
 us, therefore, is to enumerate the different species of 
 
 ('0 36 & 37 Vict. c. 66, s. 34,
 
 GUARDIANSHIP. 387 
 
 guardians which are recognised in equity, and to ascer- 
 tain the powers and responsibilities of each. 
 
 The fullest discussion of the subject is found in the 
 leading case of 
 
 EYRE V. THE COUNTESS OF SHAFTESBURY 
 
 [2 P. Wms. 103; 2 W. & T. L. C. 633], 
 
 in which the whole jurisdiction of the Court in matters of 
 guardianship was passed under elaborate review. We 
 shall presently have to advert to the precise points raised 
 and settled in this case; but before doing so there are 
 some matters requiring consideration which were only in- 
 cidentally referred to therein. 
 
 1. Obsolete species of giiardiansldp. 
 
 At different periods of the history of equity, several Obsolete 
 species of guardianship were recognised which have now o^,a*i^dfaQ. 
 little more than an antiquarian interest. Some having ship, 
 been expressly abolished by statute, and others having 
 fallen into desuetude, it is only necessary here to enumerate 
 them : we refer to guardianship in chivalry, guardianship 
 in socage, guardianship by the appointment of the Eccle- 
 siastical Courts, guardianship by election and by custom, 
 and guardianship under 4 & 5 Ph. & Mary, c. 8. 
 
 2. Tlte guardiansJiij} of imrents. 
 
 By nature and nurture the father is indisputably the Guardian- 
 guardian of his children (6), and he may exercise the rights r 'P ^ 
 of guardianship even in oj)position to their mother (c). 
 Until quite recently the Courts so respected this natural right 
 as to refuse, save under very exceptional circumstances, to 
 enforce a contract entered into by a father to give up to 
 his wife the custody and education of their children (d), on 
 the ground that it was opposed to public policy. But by 
 36 Vict. c. 12, it has been enacted that no agreement con- 36 vict. 
 tained in a separation deed made between the father and ^' ■^^• 
 
 [h] Exp. Hopkins, 3 P. Wms. (d) Hope v. H, 8 De G. M. & G. 
 
 Ia2. 731 ; Sioift v. S., Zi Beav. 266. 
 
 (c) Exp. M'Cldlan, 1 Dowl. 81. 
 
 cc2
 
 388 
 
 INFANTS. 
 
 mother of an iufimt shall bo held to be invalid by reason 
 only of its providing that the father shall give I'.p the 
 custody or control of such infant to the mother, provided 
 that no Court shall enforce such agreement if it shall be 
 of opinion that it will not be for the benefit of the infant 
 to do so. 
 
 But an agreement by a husband before man-iage that 
 his children shall be brought up in a particular religion is 
 not binding on him, and will not be enforced (e), unless, 
 indeed, he has abandoned his right to educate his children 
 in his own religion (/). 
 Of mother. jj-^ case of the death of a father without his having ap- 
 pointed a testamentary guardian, the mother, if surviving, 
 becomes the natural guardian of the children (g). 
 
 Though no Court has power actually to deprive a 
 father of Ids legal right as guardian, his exercise of his 
 natural guardianship is subject to the superintendence of 
 the Court, which will, if necessary, interfere between him 
 and his children by appointing a person to act as guardian. 
 This part of its jurisdiction was well established in the 
 case of Wellesley v. Beaufort (h) ; but in order to justify 
 such interference there must be strong circumstances show- 
 ing that it will be for the benefit of the children. 
 
 Thus, prior to 36 Vict. c. 12, the mere fact of the father's 
 poverty, or even insolvency, would not sutfice (i) ; nor would 
 acts amounting to severity or harshness, unless extreme, or 
 of such a nature as to corrupt the morals of his children (IS). 
 Even where a father was living in adultery, but did not 
 bring his children into contact with his paramour, the 
 Court refused to deprive him of their custody (l). 
 
 But where, coupled with insolvency, the character of the 
 father is bad (rii), or he has deserted his children (n), or 
 
 Court 
 Hviper- 
 iij tends 
 guardian 
 ship. 
 
 When 
 
 giiardian- 
 
 ghip of 
 
 father 
 
 interfered 
 
 with. 
 
 Insol- 
 vency, 
 desertion, 
 
 (c) Be Broicne, 2 Ir. Ch. E. 151. 
 
 (/) Andrews v. Salt, 8 Ch. 622, 
 637. 
 
 (rj) ViUarccd v. Mdlish, 2 Swanst. 
 533. 
 
 (/() 2 Russ. 1, 2 Bli. N. S. 124. 
 
 (i) Kilpntrk/i V. A'., Macph. 143; 
 
 In re Fipin, 2 De G. & Sm. 457. 
 
 (A-) (JurUs V. C, 5 Jur. N. S. 1147 ; 
 Re Spenrc, 2 Ph. 252. 
 
 (/) Ban V. B., 2 Sim. 35. 
 
 (m) Exp. Mountfort, 15 Ves. 445. 
 
 (n) Creuze v Hunter, 2 Cox, 242.
 
 GUARDIANSHIP. 389 
 
 is endangering their property or neglecting their educa- 
 tion (o), there is sufficient ground for interference. 
 
 Even in the absence of any pecuniary difficulties of the immo- 
 father, if his habits are notoriously immoral, and such as 
 are likely to corrupt his children, or imbue them with irre- 
 liofious notions, the Court has not hesitated to remove 
 them from his control (j;). Habits of habitual drunken- 
 ness and profanity have led to the same result {rf). 
 
 The power of the Court in this direction has been con- 2 & 3 Vict. 
 siderably and advantageously extended by statute. First, 
 by 2 & 3 Vict. c. 54 (z-), the Court was enabled to give to a 
 mother access to her children, and even custody of them, 
 up to the age of seven years, in case of ill-treatment by her 
 husband. More recently this Act has been replaced by 
 86 Vict. c. 12, which empowers the Court upon petition of 30 Vict. 
 a mother by her next friend, to give her a right of access to 
 any infant under sixteen years of age at such times and 
 subject to such regulations as may seem proper, or to 
 order that any such infant shall be delivered to the 
 mother and remain under her custody and control until 
 it shall attain that age, subject to such regulations as 
 may seem proper. The principles upon which the Court 
 administers this Act are expounded in B.e Taylor (s). 
 
 Since by the Judicature Act the rules of equity as to 
 the custody of infants now prevail in ali divisions of the 
 High Court, a father can no longer, as formerly, obtain at 
 common law a writ of habeas covpus for the possession of a 
 child, where there are equitable reasons against it (t). 
 
 3. Testamentary guardians. 
 
 By 12 Car. II. c. 24, power was conferred upon a father. Testa- 
 
 ••111 •!! naentary 
 
 even though a mmor, oi appomtmg by deed or will guardians. 
 
 guardians for his legitimate children during minority, ■^"^„^'^^- ■'■■'■• 
 
 c. 24. 
 
 (o) Re England, 1 K. & M. 499 ; Ves. 62. 
 
 Thomas v. Roberts, 3 De G. & Sm. (»•) Commonly known as Tal- 
 
 758. fourd's Act. 
 
 {p) Shelley v. TTesfirooi-e, Jac. 266 ; (s) 4 Ch. D. 157. 
 
 WeUesley v. Beaufort, sup. (t) Re Goldsivortliy, 2 Q. B. D. 75. 
 
 (2) De MannevUle v. De M., 10
 
 390 
 
 INFANTS. 
 
 How 
 
 appointed. 
 
 Passes by 
 survivor- 
 ship. 
 
 Dis- 
 claimer. 
 
 Testa- 
 mentary 
 
 Now, hy 1 Vict. c. 26, a minor can no longer make an 
 efFectual will for any purpose ; but the power of a minor 
 to appoint a guardian by deed still remains. Under the 
 earlier statute Roman Catholics could not be appointed 
 guardians, but this disability, with others, has long been 
 removed («). 
 
 The statute conferred no corresponding power on a 
 mother, and her natural guardianship is superseded by 
 the father's testamentary ajjpointment : the mother, how- 
 ever, may of course be appointed herself to the office. 
 
 No particular form of words is required for the appoint- 
 ment of a testamentary guardian. Such expressions as 
 " my son and daughter to be under the care and direc- 
 tion of A. and B." (x), and a direction to C. to " take the 
 care and management of my children " (y), have been 
 held sufficient. But where the words used refer only to 
 the property of the children — e.g., " to be guardian of the 
 estate " of the children — they will not constitute a person 
 a guardian (z). A person is not disqualified from being 
 appointed guardian by being a witness to the will appoint- 
 ing him (r/). 
 
 The leading case of Ei/re v. Sliafteshvbry (h) decides that 
 where more than one guardian is appointed by will the 
 office passes to the survivor. A testator may, under the 
 statute, give to the survivor the power of nominating 
 a successor to one who has died (c) ; but guardianship is 
 not assignable. Delegatus non potest delegare (d). 
 
 It is open to a testamentary guardian to disclaim the 
 office before acting therein (e) ; but after acting in the 
 office he cannot renounce it (/). 
 
 A testamentary guardian is a trustee ; so that the Statute 
 
 {u) 33 Geo. III. c. 21 ; 34 & 35 
 Vict. c. 48. 
 
 (x) Bridges v. Hales, Mos. 108. 
 ly) Miller v. Harris, 14 Sim. 540. 
 (z) He Norhury, 9 I. R. Eq. 134. 
 
 (a) Morgan v. Ratchell, 19 Beav. 
 86. 
 
 (b) Supra, p. 387. 
 
 (f) In the goods of Parncll, 2 L. 
 R. P. & D. 379. 
 
 [d) MeUish v. De Costa, 2 Atk. 
 14. 
 
 (e) O'A'cf/e V. Casey, 1 S. & L. 106. 
 (/) Spencer v. Chesterfield, Amb. 
 
 146.
 
 GUARDIANSHIP. 391 
 
 of Limitations does uot rim in his favour in an account ffuardiau 
 between him and his ward {g). The claim of the ward ' 
 may, however, be lost by a long acquiescence in the acts 
 of the guardian (h). 
 
 Testamentary guardianship is clearly not determined by Office not 
 the marriage of a male ward ( /), nor, it would seem, by the mined by 
 marriage of a female ward {h). "f^ward^ 
 
 The powers of a testamentary guardian are extensive. Powers of 
 He is generally entitled to the custody of the persons of S^^^*^^^"* 
 his wards Q) ; and unless some contrary wish is expressed by 
 the father {m), he may regulate and superintend their 
 education, and compel their obedience {n). 
 
 Parental guardianship being subject to the superintend- Sup^rin- 
 ence of the Court, a fortiori so also is a testamentary of the 
 guardian. It seems that there is no jurisdiction to remove ^°^^*'- 
 such a guardian from his office ; but under certain cir- 
 cumstances he may be susj^ended from exercising the 
 powers thereof, and a proper person appointed to act in his 
 place (o). And it requires less stringent circumstances to 
 induce interference in this case than in that of a father. 
 
 Thus bankruptcy or insolvency will justify the appoint- Bank- 
 ment of a person to take the place of a testamentary 
 guardian {p) ; but the mere fact of a guardian having a 
 pecuniary interest in the death of his ward, will not, as 
 in Roman law, disqualify him for his office, or be a 
 ground for superseding him [q). 
 
 In the superintendence of testamentary guardians by 
 the Court there is an element to be considered which is 
 wanting in the case of parental guardianship, namely, 
 that the wishes of the father, both expressed and implied, 
 are regarded with respect ; but since in cases where ques- 
 
 (r/) Matheio V. Brise, 14 Beav. 341. («) Hall v. //., 3 Atk. 721 ; Trc- 
 
 (k) Sleeman v. Wilson, 13 Eq. 36. viain's C'a., 1 Stra. 173. 
 
 (i) Eyre v. Shaftesbury, siq). (o) Foster v. Denny, 2 Ch. Ca. 
 
 (k) Roach V. Garmn, 1 Ves. sr. 327 ; 1 Eq. Ca. Ab. 260, pi. 3. 
 
 160. (p) Smith v. Bate, 2 Dick. 631; 
 
 {I) Exp. E. of Ilchester, 7 Ves. Ileysham v. //., 1 Cox, 179. 
 
 381. i'j) Morgan v. Dillon, 9 Mod. 135. 
 
 (m) Knott V. Cottee, 2 Ph. 192.
 
 392 INFANTS. 
 
 tions as to these arise the principles ap|)lied are identical 
 with those which regulate the conduct of guardians 
 appointed by the Court itself, we shall, to avoid repetition, 
 postpone their discussion until dealing with this last 
 species of guardianshij). 
 
 4. Guardians appointcl hy a stranger. 
 
 Guardians The power of a stranger to appoint guardians of an 
 
 appoin e j^fv^^^^ during his father's life can only be derived through 
 
 strangers, the waivcr of his right by the father. One of the cases 
 
 fathe^'^ ^ ™*^^* frequently cited with reference to this is Powel v. 
 
 Cleaver (r), where a testator gave considerable legacies to 
 
 his sister, her husband, and their infant children, upon the 
 
 express condition that his executor should be guardian of 
 
 the children during minority. The father acquiesced in 
 
 the arrangement, accepted the benefits conferred upon him, 
 
 and received the maintenance provided for the cliildren. 
 
 Afterwards he wished to resume the guardianship himself. 
 
 This was refused, as not being consistent with the interests 
 
 of the children (s). 
 
 It is necessary in such cases that there should have been 
 a voluntary waiver of his rights by the father. The Court 
 will not interfere to compel him to do this simply because 
 a stranger offers to maintain the children (t) ; and it is 
 open to a father to rescind and abandon an agreement of 
 this nature at any time before it has been acted upon so 
 as to alter the status of the child (it,). 
 
 Guardianship created in this manner is of course subject 
 to the supervision of the Court, on the same principles as 
 testamentary guardianship. 
 
 5. Guardians appointed hy the Court. 
 
 Guardians Whatever may have been its origin, as to which there 
 
 by^the ^^^^ been much learned dispute, it was a well established 
 
 Court. part of the jurisdiction of the Court of Chancery to 
 
 appoint guardians of infants when necessary ; and this 
 
 (r) 2 Bro. C. C. 499. {t) Lyons v. Blcnlin, Jac. 245, 
 
 (s) See also Colston v. Morrii, Jan. 264 ; A'e F>/nn, 2 De G. & S. 457. 
 
 257, n.; Andrews v. Salt, 8 Ch. 022, (u) Hill v. Gonme, 1 Beav. 540; 
 
 640. 5 My. & Cr. 680.
 
 GUAEDIANSHIP. 393 
 
 jurisdiction is now, as we have seen, vested in the Chan- 
 cery Division of the High Court of Justice. 
 
 The jurisdiction arises whenever an action is commenced When the 
 in Chancery relative to the estate or person of an infant, til^i^'.^'i^i^i «, 
 and none the less because the father or a testamentary 
 guardian is alive (.t) ; or if without suit an order for main- 
 tenance is made on summons in Chambers (y), or on a 
 petition respecting money belonging to an infant paid into 
 Court under the Trustee Relief Act (;::). In all these cases 
 an infant is said to become a ward of Court. But in order 
 to the exercise of the jurisdiction there must be some 
 property of the infant in its power («) ; and thus when it 
 is desired to make an infant a ward of Court it is usual to 
 settle a sum of money or other property on him for the 
 purpose (h). 
 
 Without any suit pending, and although the infant has Um.ier 
 no property, the Court may upon petition aj^point a ^ 7^ ' 
 guardian under 4 Geo. IV. c. 70, s. 17, to give consent to 
 a marriage (c), or make an order for the delivery of an 
 infant to a person who has a right to its custody (c7) ; or it 
 may appoint a guardian of the person and estate of an 
 infant ; but an infant does not in any of these cases become 
 a ward of Court. 
 
 The Court will not ordinarily appoint a married woman Married 
 
 , -, T / \ -v-iTi i 1 • Avoman not 
 
 to be a sole guardian (c). When two or more guardians appointed 
 are appointed by the Court, the office does not upon the ^'^l"'^^- 
 death of one survive, as in the case of testamentary Office 
 guardianship ; there must be a new appointment (/). survive. 
 
 In the appointment of a guardian the wishes of the Father's 
 father of tlie infant, if alive, are regarded, even in the case followed, 
 of natural children (g) ; and in their education, his wishes, 
 whether expressed or implied, are usually followed. In 
 
 (x) Butler v. Freeman, Amb. 303. (J) Re Lyons, 22 L. T. N. S. 770. 
 
 (?/) Re Graham, 10 Eq. 530. (c) Re Woolscomhe, 1 Madd. 313. 
 
 (.:) 1 J & 11 Vict. 0. 96 ; Re (d) Re Spence, 2 Ph. 247. 
 
 llodyes Sett., 3 K. & J. 213. (c) Re Kaye, 1 Ch. 387. 
 
 («') Wellesley v. Beaufort, 2 Russ. (/) Bradshaw v. B., 1 Russ. 528. 
 
 21. (u) Peclcham v. P., 2 Cox, 46.
 
 394 INFANTS. 
 
 the absence of a direction to the contrary, the Court pre- 
 sumes that he desires liis children to be educated in his 
 own religion (h). And it is immaterial that his religion is 
 not that of the Established Church (i). No pecuniary 
 benefit to the child will induce the Court to depart from 
 the course of religious instruction pointed out by the 
 fether (k). 
 Change of Where, however, children have been brought up in a 
 discounte- particular religion until they have reached such an age as to 
 nanced. have formed definite religious opinions, even though in oppo- 
 sition to the wishes of the father, the Court is very reluctant 
 to interfere, because of the peril of unsettling the founda- 
 tions of all faith by a compulsory change ; and the Court 
 has sometimes conversed with the infant to ascertain the 
 extent of its knowledge and the character of such opinions 
 as it has formed (/). 
 Wards not In general the Court will not allow its wards to be taken 
 
 to be taken ..,.. ,. i • r n • t • 
 
 (lufc of out 01 its jurisdiction {m) ; and it trom special circum- 
 jurisdic- stances the removal is allowed, security will be required for 
 
 tion, save "^ . -^ 
 
 under their retum (?i), and the Court must be kept informed as 
 
 cinnnn- ^^ their whereabouts and treatment (o). The health of a 
 
 stances. ward (jj), the desirability of children living with their 
 
 parents (q), and the enlistment of a ward in the army (r), 
 
 have been deemed sufficient grounds for permitting a 
 
 temporary residence beyond the jurisdiction. To remove 
 
 a ward from the jurisdiction without leave of the Court is 
 
 a contempt which will be severely visited on the 
 
 offender (s). 
 
 Guardians The Court will appoint guardians of a foreign infant 
 
 (It) Re Newbn-y, 1 Eq. 431 ; 1 (n) Jeffrys v. Vantesivarstwarth, 
 
 Ch. 263 ; Hawkswm-th v. //., 6 Ch. Barn. Ch. 'R. 141 ; Bir/gs v. Tei-ry, 
 
 539. 1 My. & Cr. 675. 
 
 (/) Talbot V. ^hrevshvry, 4 My. & (o) Anon, Jac. 26.^), n. ; Logan v. 
 
 Cr. 672. Fairlie, Jac. 193. 
 
 (k) Ibid., 686. (p) Wyndliam v. W., 1 Kee. 467. 
 
 (?) Witty V. MarsliaU, 1 Y. & C. [q) Lethemv. Hall, 7 Sim. 141. 
 
 Ch. 68 ; Stourton v. S., 8 De G. M. {?•) Rochford v. Hodman, Kay, 
 
 & G. 760. 308. 
 
 (m) Be Mannevilh v. De M., 10 (s) Ibid. 
 Yes. 52.
 
 GUARDIANSHIP. 395 
 
 resident within its iurisdiction, and this notwithstandinsf of foreign 
 
 1 1,1 • 1 • 1 infant. 
 
 that guardians may have been already apponited m the 
 child's own country (t) ; and though foreign guardians 
 are eligible to be appointed, the Court usually prefers 
 a person within its jurisdiction and control (u). The 
 Court will give effect to the orders of foreign Courts with 
 respect to such children, unless they conflict with our own 
 jurisprudence. 
 
 The Court reasonably acts with great circumspection and Marriage 
 strictness respecting the marriage of its wards. Whether 
 they be male or female, and whether or not they have 
 parents or guardians living, it is necessary to apply to the 
 Court for j)ermission before their marriage can take |)lace(a;). 
 To marry a female ward Avithout such permission is a gross 
 contempt of Court, and the husband, together with all 
 persons aiding and abetting the marriage, are liable to 
 imprisonment (y) ; ignorance of the fact that the infant 
 is a ward does not excuse the contempt (z). Where 
 there is reason to suspect an unauthorised marriage, the 
 Court will, by injunction, restrain it, and interdict any 
 communication between the ward and her suitor (a). 
 
 A guardian appointed by the Court is commonly Guardian 
 required to give security that the ward under his care shall security, 
 not marry without leave of the Court; and if he is suspected 
 of any connivance at an unsanctioned intimacy, the ward 
 will be removed from his care and custody and committed 
 to the care of others (Jj). 
 
 AVhen the Court grants leave for a marriage to take Marriage 
 place, it is careful to see that a proper settlement of the ments. 
 ward's property is made ; and to this end it will direct 
 an inquiry in Chambers as to what settlement is proj)er (c). 
 
 (t) Stuart V. M. of Bute, 9 H. L. Atk. 173. 
 
 440, 464 ; Nugent v. Vetzera. 2 Eq. (z) More v. M., 2 Atk. 157 ; 
 
 704. Herbert's Ca., 3 P. Wms. 116. 
 
 (m) Johnstone v. Beattie, 10 CI. & [a) Pearce v. Crutchfield, 14 Ves. 
 
 F. 42. 206. 
 
 {x) Smith V. ,S'., 3 Atk. 305. (b) Tombes v. Elers, Dick. 88. 
 
 [y] Wortham v. Pemberton, 1 De (c) Smith v. S., sup. ; Leeds v. 
 
 G. & Sm. 644 ; Exp. Mitchell, 2 Barnardiston, 4 Sim. 538.
 
 396 INFANTS. 
 
 The nature of the settlement depends upon many circum- 
 stances, such as the fortune, station, and conduct of the 
 husband, and the extent of the property of the ward {d). 
 
 Where a marriage has taken place without the permis- 
 sion of the Court, the husband will be compelled to 
 execute a proper settlement, and can only purge his con- 
 tempt by doing so. Such a case will of course be treated 
 more strictly against the husband than where he has acted 
 openly ; usually the settlement will entirely exclude the 
 marital right and interest (e); but this rule has been relaxed 
 where there has been no great difference in fortune 
 between the parties (/) and where the husband has acted 
 in ignorance {g). 
 Settlement When a female ward of Court comes of age, she may 
 by female generally settle her property as she pleases ; but the 
 majority. Court will SO far retain her property as to see that her 
 action is free (Ji). An improper settlement, though made 
 after her attaining majority, may be rectified at her 
 request (i), and this has been done after a considerable 
 lapse of time {h). Where the Court has approved a 
 settlement it will not allow its purpose to be defeated by 
 i]\Q parties delaying the marriage until the lady is of age (/). 
 18 & 19 Previous to 18 & 19 Vict. c. 43, infants could not make 
 
 Vict. c. 43. binding settlements on their marriage, nor could the Court 
 give validity to their settlements by adding its sanction {if)i). 
 By that statute (explained by 23 & 24 Vict. c. S3), infants 
 not being under 20 if male, or 17 if female, can now, with 
 the approbation of the Court, make binding settlements of 
 their real and personal estate in possession or otherwise on 
 their marriage. This statute, however, does not empower 
 the Court to make a settlement of an infant's property after 
 marriage {n). 
 
 (d) BaU V. Coutts, 1 V. & B. 303; (/<) Austen v. Uahey, 2 S. & S. 
 
 Field V. Mom-e, 7 De G. M. & G. G91. 123, n. 
 
 ■e) Wade v. Ilopkinson, 19 Beav. {i) Lcmg v. L., 2 S. & S. 119. 
 
 613. (/■) Care v. C, 15 Beav. 227. 
 
 (/) Ball V. Coutts, sup. {I) If Olson v. Ferrahy. 2 Coll. 412. 
 
 g) Richardson v. Mcrrlfield, 4 De (m) Savill v. S., 2 Coll. 72. 
 
 G & S. 161. (n) Fc Potter, 7 Eq. 484.
 
 MAINTENANCE. 397 
 
 II. Maintenance. 
 
 Another prominent feature in the jurisdiction of the 
 Chancery Division of the High Court of Justice respecting 
 infants is its power in certain cases to make provision for 
 their maintenance out of the income of their property (o). 
 The first question is out of what property maintenance Mainte- 
 can be directed ; the second, in what circumstances it will ^ " ^' 
 be directed. 
 
 1. Out of u'hat property maintenance can he directed. ""* of 
 
 (1.) The clearest case is where a fund is expressly given directed, 
 to a person for the maintenance of children. This may or Express 
 may not be so done as to create a trust for the children : 
 in the former case the person so receiving the fund is 
 accountable for its proper application ; in the latter he is 
 not {y). It is a matter of course depending upon the 
 language of each particular instrument whether there is a 
 trust or not ; but where the gift is made to a person who 
 is already legally bound to maintain the cliildren^for 
 instance, to their father — it requires a strong case to 
 establish it as a trust ; the presumption is that it is in- 
 tended to confer a beneficial interest {q). 
 
 (2.) More commonly the income only of a fund is left Income <.f 
 for the maintenance of children : and in tliis case the fund!^** 
 person to whom it is so given is entitled to receive it as 
 long as he continues properly to maintain them (r), and 
 even though the language be such as to create a trust for 
 maintenance, no account will be directed unless a special 
 case is made out showing that some of the children have 
 not been provided for (s). When some of the children 
 originally comprised in such a gift have come of age, the 
 whole fund remains applicable, if necessary, to the main- 
 
 (o) Wdlcdey v. W., 2 Bli. N. S. {q) Bijncy.BIacl:burn,2QBea,vA\. 
 
 133. (r) Hadoiv v. H., 9 Sim. 438. 
 
 (p) Andreicsv, Partington, 2 Cox, (s) Hora v. //., 33 Beav. 88 
 
 223. Raikes v. Ward, 1 Ha. 450.
 
 398 INFANTS. 
 
 tenance of those who are still infants ; but if this is not 
 
 necessary, the shares of the adults may be paid them (t). 
 
 Under (3.) It is iisual in wills and settlements which confer 
 
 property on infants, to insert powers for their maintenance ; 
 
 and under such powers trustees can safely apply either 
 
 income or capital for that purpose, provided, of course, that 
 
 their exercise of the power is hondfide and reasonable {u). 
 
 23 & 24 It having been found that hardship was often occasioned 
 
 Vict. c. . . 
 
 145. ' by the omission of such powers, a general power of aj)plying 
 
 an infant's property for his maintenance and education was 
 
 44 & 45 given by Lord Cranworth's Act {x). And by 44 k, 45 Vict. 
 
 Vict, c 41 
 
 s. 43'. ' ' c. 41, s. 43, it is enacted, that 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 previous to 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 and education the income 
 of that property, or any part thereof, whether there is any 
 other fund applicable to the same purpose, or any other 
 person bound by law to provide for the infant's mainten- 
 ance or education, or not. This power may be excluded by 
 the expression of a contrary intention in the instrument 
 conferring the infant's interest, but the section apj)lies 
 whether the instrument comes into operation before or 
 after the commencement of the Act. 
 Effects of The power of maintenance given by the similar section 
 torypower. J^^ Lord Cranworth's Act has been held to extend only up 
 to the age of twenty-one years (s) ; and that Act conferred 
 no power to allow maintenance where the infant would 
 not in any event become entitled to the income. Thus 
 where a legacy was given to a child contingently on his 
 attaining twenty-one, but the income was meanwhile to be 
 
 (0 Berry v. Bryant, 2 Dr. & Sm. 1. (x) 23 & 24 Vict. c. 145, s. 26. 
 
 \xi) Talbot V. Marshman, 3 Ch,622. [z] Re Breed's Will, 1 Ch. D. 228.
 
 MAINTENANCE. 399 
 
 accumulated as jDart of the residuary personal estate, main- 
 tenance could not be allowed thereout, since the child was 
 not even contingently entitled to the income (a). The 
 wording of the present Act is, however, apparently wide 
 enough to cover such a case, as the power is not, as before, 
 restricted to income to which the infant may be entitled. 
 
 (4.) In the absence of any such power directory or Mainte- 
 statutory, the Court has been wont to allow as maintenance directed 
 the rents, profits, or income of real or personal property ^ ^^^ 
 which is vested in possession in an infant (6) ; and if it be Out of 
 so vested, maintenance may be allowed, notwithstanding ^^^^ ^™«^- 
 that it is liable to be divested by a condition subsequent (c). 
 
 Maintenance cannot usually be given out of a vested 
 legacy payable at a future day, since it does not carry 
 interest until that time (d) ; still less out of the income of 
 a contingent legacy (e). But to these rules there is this 
 important exception, namely, that if a parent or person in 
 loco iKirentis leaves to a child or to children as a class a 
 vested legacy payable in futuro, or a contingent legacy, 
 and the child or children is or are otherwise unprovided 
 for, the interest will be allowed as maintenance, from the 
 death of the testator (/). But maintenance will not be so 
 allowed if the testator has made an independent provision 
 for it {g). 
 
 When there are equal legacies to a class of children, to 
 be paid at 21, with survivorship to the others in case of the 
 death of any under that age, the Court will, notwithstand- 
 ing a direction to accumulate the interest, apply the 
 interest for the maintenance of the whole class, if neces- 
 sary Qi) ; but it cannot do so if there is a gift over in 
 certain events to a stranger (i), nor if the class comjjrises 
 
 (a) Re George, 5 Ch. D. 837. (e) Butkr v. Freeman, 3 Atk. 58. 
 
 (6) Dormer v. D., Rep. t. Finch, (/) Indedon v. Northcote, 3 Atk. 
 
 432 ; Re Ilowarth, 8 Ch. 415. 438 ; £rown v. Temperky, 3 Russ. 
 
 (c) Taylor v. Johyison, 2 P. Wms. 263. 
 
 504. _ (a) Ibid. 
 
 {d) Bescrampesv.Tomjikms, iHro. [h) Marshall v. IloUoivay, 2 
 
 C. C. 149, n. ; CrickeU v. Dolby, 3 Ves. Swanst. 436. 
 
 10. (i) Exp. Keble, 11 Ves. 604,
 
 400 INFANTS. 
 
 unborn cbildrenj who may thus become entitled to the 
 whole (k). 
 
 The Court will only in extreme cases resort to or autho- 
 rise the employment of an infant's capital for his main- 
 tenance (on). 
 
 2. In what circum stances maintenance will he directed. 
 When In both Lord Cranworth's Act (n) and 44 & 45 Vict. c. 41, 
 
 under the the grantiijg or withholding of maintenance is expressed 
 .statute, iq \yQ " g^^ i\^Q gQJg discretion " of the trustees ; and it was 
 
 discretion -, . t . , . ^ . -i • n t n i i 
 
 of trustees, decided that they might pay it to the mlant s lather, who as 
 natural guardian was held to come within the words of the 
 Act (o). The present Act expressly provides for such a case. 
 Apartfrom In cases uot within the Act, the Court has acted on the 
 mainten- pi'iiiciple that the father is bound to maintain his children, 
 auce not ^ud lias accordingly refused to allow maintenance out of 
 father. their property, except in cases where the father has been 
 unable to provide for them in a manner suited to their 
 fortune and position (p). 
 Exception; ]3ut if the property in question is the subject of a 
 fuad*^ marriage settlement, the trusts of which are a matter of 
 contract, then if the settlement contains a trust for main- 
 tenance, a father is entitled to receive a proper sum for the 
 purpose, without reference to his ability (q). A mere 
 ^.ower so to apply the income is not, however, sufficient to 
 entitle the father to this (r). 
 
 A married woman having separate estate is now legally 
 liable for the maintenance of her children, and might 
 therefore, perhaps, be considered to fall within the same 
 Widow rules (.s); but a widow has been held entitled to mainte- 
 nance for her children without reference to her ability, 
 whether remaining unmarried [t), or marrying again (»), 
 
 {k) Ibid.; Lomax v. Z., 11 Ves. 48. (q) Mundy v. Howe, sup.; Eansome 
 
 [m) Dav'ies v. Austin, 1 Ves. jr. v. ^wr^ress, 3 Eq. 773. 
 247 ; Walker v. WethereU, 6 Ves. (r) Ibid. 
 
 473 ; Barloiv v. Grant, 1 Vern. 255. (s) 33 & 34 Viet. c. 93, s. 14. 
 
 (n) Sujyra, p. 398. (<) Lanoy v. I), of Athol, 2 Atk. 
 
 (o) Re Cotton, 1 Ch. D. 232. 447. 
 
 (p) Faiokner v. Watts,l Atk. 408 ; (a) Grccimcll v. G., 5 Ves. 194 ; 
 
 Mvndy v. IIoxcc, 4 Bro. C. C. 224 ; Dovylas v. Andreivs, 12 Beav. 310. 
 Thompson v. Griffin, Cr. & Ph. 317. 
 
 is entitled.
 
 ADVANCEMENT. 401 
 
 In deciding as to the necessity for maintenance, and its Condition 
 amount, the Court will consider the state and condition of family con- 
 the whole family {x), as well as the circumstances of the ^^'^®^'6^- 
 parents {y), so as to enable an elder son to provide for his 
 brothers and sisters, or a child to administer to the com- 
 forts and necessities of its father and mother. 
 
 In questions of future maintenance, of course the principal Distinc- 
 considerations are the extent of the fund and the position in tween^past 
 life of the infant ; but whatever these may be, in allowing »°<^ future 
 
 c • 11 1 • 1 1 1 11 ™ainte- 
 
 tor past mamtenance, only that which has been actually nance, 
 and properly expended will be repaid {z). 
 
 III. AdvanceTYient. 
 
 For maintenance, as we have seen, the capital of an Advance- 
 infant can rarely be resorted to. But in many cases it is ^®"*^.*^is- 
 
 _ '' _ _ _ -^ tmgiushed 
 
 evidently to his interest that his capital should to some from 
 
 extent, or even entirely, be laid out for the purpose of jjance^' 
 
 providing an occupation for him in the world. Such an 
 
 application of capital is termed advancement, and is subject 
 
 to rules quite different from those regulating payments for 
 
 maintenance and education. 
 
 1. Where there is an express power of advancement. 
 
 Very frequently the instrument conferring property on Under 
 an infant contains a power expressly authorising advance- ^''P'"^^'^ 
 
 . ° power. 
 
 ment. Where this is the case the terms of the power 
 must be strictly complied with {a), and if it prescribes the 
 amount which may be so disposed of, that amount cannot Power to 
 be exceeded, unless, at least, the person to be advanced is fon^ji^^^g^ 
 absolutely entitled to the fund, or the persons entitled in 
 default consent to the application (h). If the power is 
 discretionary, the Court will not usually interfere in its 
 
 (x) Pierrepont v. Cheney, 1 P. Wms. (a) Palmer v. Wakefield 3 Beav. 
 
 493. 227. 
 (y) Roach V. Garvan, 1 Ves. by. 160. (h) Therry v. Henclersor., 15 L. T. 
 
 (z) Bruin v. Knott, 1 Ph. 572. 452. 
 
 ' D D
 
 402 INFANTS. 
 
 exercise (c), unless, indeed, the trustees wholly refuse to act 
 or to exercise their discretion (d). 
 What com- ^ wide Construction is put upon the words "advancement 
 
 prised in ^ ^ 
 
 advance- or preferment." They have been held to warrant the 
 ment. purchase of a commission in the army (g), apprenticing in 
 the mercantile navy (/), the making of marriage settle- 
 ments ((/), and payment of the expenses of emigration (h). 
 Limited But if a power of advancement is given for a limited 
 
 power. purpose — e.g., to buy a commission in the army — and that 
 purpose becomes impossible of execution, the power (differ- 
 ing in this from a bequest for a special purpose) cannot be 
 exercised in any other way (i). 
 
 2. Where there is no express power. 
 Authority jj^ \\^q absence of an express power, trustees can only 
 
 of Court . . „ , . ^ . ^ . , ... .^ 
 
 required in advance an miant at their own risk, since they will not be 
 absence of allowed the sum paid unless the Court approves (k). It is 
 
 a power. ^ ^^ ^ ' 
 
 always, therefore, desirable in the first place to seek the 
 authority of the Court. 
 
 The purposes for which the Court will authorise ad- 
 vancement are similar to those mentioned in the last sec- 
 tion (Z), and need no further illustration. 
 Out of ^g jj^ xvXq, advancement can only be made out of a fund to 
 
 what funds , . , . - . . 
 
 aihwed, which the infant is absolutely entitled, but it has been 
 sanctioned in the case of equal legacies to a class with an 
 equal chance of survivorship, after the analogy of main- 
 tenance under similar circumstances {m). Where, however, 
 there is a limitation over to third parties, trustees can 
 never safely, nor will the Court, break in upon the capital 
 for any purpose, without the consent of those parties (-n,). 
 
 Advance- It being a father's duty to advance as well as to main- 
 tain his children, he will not be allowed to repay himself 
 
 (c) Lwesey v. Harding, Taml. 460 ; (i) Re Ward's Tr., 7 Ch. 727. 
 
 French v. Davidson, 396. (k) Lee v. Broivn, 4 Ves. 362, 368. 
 
 {d) Lewis v. L., 1 Cox, 162. (0 Evans v. 3Iasse2j, 1 Y. & J. 196 ; 
 
 (c) Cope V. Wilmot, 1 Coll. 396, n. Franklin v. Green, 2 Vern. 137 ; 
 
 (/) Warr v. W., Free. Ch. 12, 13. Walsh v. W., 1 Drew, 64. 
 
 iy) Lloyd v. Cocker, 27 Beav. 645 ; {m) Franklin v. Green, sup. 
 
 Roper-Curzon v. R., 11 Eq. 452. (n) Lee v. Brown, sup. ; Evans v. 
 
 [h] Re Long, 38 L. J. Ch. 125. Massey, sup.
 
 LUNATICS. 403 
 
 what he has advanced, out of the property of his child (o) ; f^^^^^f *« 
 and it is doubtful whether the same would not apply to 
 a mother (p) ; but an advancement will clearly be made 
 for the child if the father is unable to do it {q). 
 
 NOTE. 
 
 Jurisdiction as to Lunatics. 
 
 This is a convenient place in which to mention a matter 
 which does not, strictly speaking, fall within the limits of 
 this work — namely, the jurisdiction exercised by the Lord 
 Chancellor and Lords Justices over the persons and pro- 
 perty of lunatics or persons of unsound mind. 
 
 The student cannot be too strongly reminded that this Jurisdic- 
 subject formed no part of the jurisdiction of the High ly^atics ° 
 Court of Chancery, nor is it now exercised by the Chancery ^^ ^^ 
 Division of the High Court of Justice. The Crown, by but dele- ' 
 virtue of its prerogative, has the right to assume the care f^^Q ^^ 
 and custody of the persons and estates of those who are of to the 
 unsound mind. For the purpose of its exercise, the Crown chancel- 
 by sign manual delegated its authority usually to the Lord ^°^- 
 Chancellor, as its highest judicial officer, not, however, ex 
 officio as president of the High Court of Chancery. In Lords 
 1851 the Lords Justices were appointed to constitute a 
 Court of Appeal in Chancery, with all the original and 
 other jurisdiction of the Lord Chancellor in the Court of 
 Chancery (r) ; and shortly afterwards they were entrusted 
 by a warrant under the Queen's sign manual with the care 
 and custody of lunatics. On the passing of the Lunacy 16 & 17 
 Regulation Act (s) in 1853 this jurisdiction was confirmed ^° • °- ' • 
 and continued concurrently with that of the Lord Chan- 
 
 (o) Barley v. D., 3 Atk. 397. 48,5 ; Re Lane, 17 Jur. 219. 
 
 (p) Smee v. Martin, Bunb. 136, (r) 14 & 15 Vict. c. 83, s. 5. 
 
 (q) Exp. Hays, 3 De G. J. & S. (») 16 & 17 Vict. c. 70. 
 
 D D 2
 
 404 NOTE. 
 
 cellor. By the Judicature Act, 1875 (t), s. 7, it is enacted 
 that " Any jurisdiction usually vested in the Lords Justices 
 of Appeal in Chancery, or either of them, in relation to 
 the persons and 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 
 entrusted by the sign manual of Her Majesty or her suc- 
 cessors, with the care and commitment of the custody of 
 such persons and estates." 
 
 Thus from the earliest times down to the present, the 
 jurisdiction in lunacy of certain judges appointed for that 
 purpose by the Crown, has been and is something perfectly 
 distinct from the jurisdiction of the Courts of Chancery or 
 of the Chancery Division, and this distinction is illustrated 
 by the fact that in matters of lunacy the appeal from the 
 Lords Justices lies, not to the House of Lords, but to Her 
 Majesty in Council, or, in other words, to the Judicial 
 Committee of the Privy Council (u). If further illustration 
 is required it is well afforded by the case of Beall v. 
 Smith (x), where after the institution of a Chancery suit 
 for the purpose of winding up the business of a person of 
 unsound mind not so found by inquisition, an inquisition 
 was granted on petition in lunacy, a verdict of lunacy 
 obtained thereon, and a committee appointed. Further 
 proceedings having been taken in the Chancery suit after 
 this, it was held by the Lords Justices that all such pro- 
 ceedings should be set aside as a contempt upon the 
 jurisdiction in lunacy. 
 Unsound- The fact, then, that a person is of unsound mind has no 
 mind does ©ffect whatever on the jurisdiction of the Chancery 
 not affect Division. In itself it neither creates nor destroys any 
 tion of power to deal with such a person or his property. It 
 ancery. fQJ^Q^g ^j^^^t, ^f q^^- object is simply to inquire into the dis- 
 tinctive principles or procedure of the Court of Chancery 
 as heretofore existing, or as now represented in the High 
 
 (0 38 & 39 Vict. c. 77. {x) 9 Ch. 85. 
 
 (u) Jnd. Act 1873, s. 18. 
 
 I
 
 LUNATICS. 405 
 
 Court of Justice, the question of lunacy or unsoundness of 
 mind suggests nothing for our consideration. There is, 
 however, this point to be observed, that when, on inquisition 
 held at the direction of the Court in Lunacy, a verdict has 
 been found, and a committee appointed, such committee 
 becomes an officer of the Court, and as such a delegate of 
 the prerogative of the Crown. From that time forward 
 the affairs of the lunatic are under the direction of the 
 Court of Lunacy ; in it all proceedings respecting the 
 lunatic's person or estate must be taken ; and, as we have 
 seen, the Courts of Chancery have then no longer power to 
 interfere therewith, except under the direction of the 
 judges in lunacy. 
 
 If inquiry be made as to the principles which guide the Court of 
 jurisdiction of the Court in cases of lunacy, the answer is adminis- 
 very brief. The function of the Court is purely administra- *^'^*"'^- 
 tive, and the sole and constant aim and object of attention 
 in the administration is the interest of the lunatic him- 
 self (?/). In dealing with the lunatic's property, the Court 
 will not suffer itself to be hampered by considering the 
 interests of the real or personal representatives claiming 
 through him ; and if, as is elsewhere seen, a conversion is 
 necessary for his interest, there is no equity as between 
 the representatives giving a right on either side to claim 
 a reconversion {z). 
 
 It would be inappropriate here to enter into any 
 examination of the practice of the administration in lunacy, 
 such a subject being foreign to the scope and purpose of 
 this work. Reference, however, may be made to the Act 
 already mentioned («) as being the foundation of the pro- 
 cedure as at present followed. 
 
 iy) Oxcnden v. Compton, 2 Ves. (2) p. 428. 
 
 jr. 72 ; Exp. Phillips, 19 Ves. 118. {a) 16 & 17 Vict. c. 70.
 
 400 
 
 CHAPTER IX. 
 
 ELECTION, CONVERSION, SATISFACTION, AND PERFORMANCE. 
 
 It is a matter of some difficulty to determine the proper 
 place to assign to the subject-matter of this chapter in our 
 classification. In some respects the doctrines of election, 
 conversion, satisfaction, and performance might be conveni- 
 ently treated under the heading of Administration; since it 
 is almost exclusively in the working out of the adminis- 
 tration of estates that the questions which they involve 
 arise. With almost equal propriety they might have found 
 a place under the heading of Trusts, since effect is gene- 
 rally given to them by the application of the theory of 
 Trusts. But it would have greatly encumbered those 
 subjects, already sufficiently comprehensive, to have added 
 so much matter as is necessary for the proper elucidation 
 of the doctrines now in view. On the whole, therefore, it 
 has been thought best, though it may, perhaps, involve 
 some sacrifice of logical precision, to assign a separate 
 chapter to these peculiarly equitable principles. Their 
 relation to the other branches of the subject which we 
 have mentioned will be sufficiently manifest to prevent 
 any confusion resulting from their isolated treatment ; 
 while the near relation of these matters inter se affords an 
 additional warrant for presenting them to the reader in as 
 close a connexion as possible.
 
 ELECTION. 407 
 
 Section I. — Election. 
 
 I. General Principle. 
 
 Noys V. Mordaimt. 
 II. Conditions of Election. 
 III. Election under exercise of Powers. 
 IV. Election as to Dower. 
 V. Miscellaneous matters. 
 VI. Mode of effecting Election. 
 VII. Effects of Election. 
 
 One of the most important cases by which the doctrine 
 of election has been established is that of 
 
 NOYS V. MORDAUNT 
 
 [2 Vera. 581 ; 1 W. & T. L. C. 367], 
 
 in which the facts were as follows : — John Everard, havins 
 two daughters, made his will, devising to Margaret, his eldest 
 daughter, his lands in Beeston and £800 in money ; to 
 Mary, his second daughter, his lands in Stanborn and £1300 
 in money, provided and on condition that she released, con- 
 veyed, and assured Beeston lands to her sister Margaret. 
 Provided, if he should have another daughter, then he gave 
 the £800 devised to Margaret to such after-born daughter; 
 and the lands at Stanborn and the £1300 devised to 
 Mary to the said Mary and such after-born daughter 
 equally between them. 
 
 Another daughter, Elizabeth, was born shortly after his 
 death. Mary married Higgs, and died without issue, 
 without having given any release to Margaret, as required 
 by the will. 
 
 Elizabeth claimed not only the lands devised to her by 
 the will, and a moiety of what was devised to Mary, but
 
 ELECTION. 
 
 also a moiety of the Beeston lands devised to Margaret, 
 these having been, on the testator's marriage, settled on 
 himself for life, and his wife for her jointure, and to the 
 first and other sons, and in default of issue to the heirs of 
 his body. The question was whether she should be at 
 liberty so to do, or ought not either to acquiesce in the will, 
 or renounce any benefit thereby. 
 
 Lord Keeper Cowper said that in all eases of this kind, 
 where a man is disposing of his estate amongst his children, 
 and gives to one fee simple lands, and to another lands 
 entailed or under settlement, it is upon an implied condi- 
 tion that each party quit and release the other. 
 
 I. General Principle. 
 
 lUustia- 1- The simplest illustration of the well-known equitable 
 
 tion. principle of election may be given in the following form : — 
 
 If A. gives to B. by will or deed property belonging to C, 
 and by the same instrument gives to C. property belong- 
 ing to himself, then a Court of equity will allow C. to 
 take the gift made to him by A. only upon the condition 
 of his conforming to the instrument by giving up his own 
 property to B. He must choose or elect whether he will keep 
 his own property and forego the gift, or will accept the gift 
 and give effect to the benefit intended for B. by giving up 
 his property. 
 Contrast 2. This doctrine rests on the gi'ound that it is inequitable 
 of English ^^^ ^ beneficiary at the same time to receive a benefit from 
 
 and -^ 
 
 Eoman a donor and refuse to give effect as far as possible to the 
 oc nne. (-j^j^^j-'g rnanifest intention. The limitations to which it is 
 subject in application will presently be seen. In two 
 important particulars the English doctrine of election 
 differs from the corresponding principle in Roman law 
 from which it is probably derived. First, whereas the 
 Roman prsetors only applied it in the case of testamentary
 
 GENEEAL PRINCIPLE. 
 
 409 
 
 dispositions, in English Courts of equity it affects equally 
 dispositions by will and dispositions by deed inter vivos (a). 
 Secondly, no case of election arose in Roman law where a 
 testator made a bequest of the property of a person under 
 the erroneous supposition that it belonged to himself. 
 Such a bequest was considered void, and the property so 
 referred to might be retained by the person whose it was, 
 while at the same time he received a benefit under the 
 same will. In English equity, however, it is immaterial 
 whether a donor intentionally or under a misapprehen- 
 sion affects to give away property belonging to another 
 person. In either case the person whose property is thus 
 dealt with must conform to the instrument if he would 
 receive a benefit under it (6). This may perhaps be less 
 logically consistent than the Roman rule, but it has the 
 manifest advantage of avoiding the necessity of an inquiry, 
 which is often likely to be exceedingly difficult, as to the 
 degree of knowledge existing in the mind of the donor. 
 
 3. If in circumstances which give rise to the doctrine of Compensa- 
 
 o tion, not 
 
 election, the beneficiary elects to conform to the instrument forfeiture, 
 and part with his own property, no question arises. But 
 it is of course quite open to him to elect against an instru- 
 ment which can have no intrinsic power to deprive him of 
 what is his own. It was for some time a question what 
 was the consequence of such an election. In many cases 
 it has been held that by refusing to comply with the 
 donor's expressed intention, a person entirely forfeits the 
 benefit which the donor conditionally bestowed upon 
 him (c). On the contrary, the well-known case of Streat- 
 field V. Streatjield (d), followed by a long line of authorities, 
 may be taken now to have established that forfeiture does 
 not result from such non-compliance, and that all that is 
 required from the beneficiary is to make or allow compen- 
 
 [a) Llewellyn v. MacJcworth, Barn. (c) Coivper v. Scott, 3 P. Wms. 
 Ch. 445 ; Green v. G., 2 Mer. 86. 124 ; Cookes v. Hellier, 1 Ves. sr. 
 
 (b) Whistler v. Webster, 2 Ves. 235. 
 
 370. (d) Ca. t. Talb. 176.
 
 ELECTION. 
 
 sation to the person who is disappointed by his election (e). 
 Illustration will, perhaps, make this clearer. If, then, A. 
 gives to B. an estate which belongs to C. and is worth 
 £10,000, and at the same time gives to C. a legacy of 
 £20,000, C. by refusing to part with his estate will not 
 forfeit the whole of his legacy, but may receive £10,000 
 thereof, the remaining £10,000 being paid to B. as a com- 
 pensation for his disappointment in not receiving the 
 estate which was intended for him. The result of the 
 cases has been thus summed up : — 
 
 " Firstly : In the event of election to take against the 
 instrument, Courts of equity assume jurisdiction to 
 sequester the benefit intended for the refractory donee, in 
 order to secure compensation for those whom his election 
 disappoints." 
 
 " Secondly : The surplus after compensation does not 
 devolve as undisposed of, but is restored to the donee, the 
 purpose being satisfied for which alone the Court controlled 
 his legal right" (/). 
 
 II. Conditions of Election. 
 
 Such being the general character of the doctrine, it is 
 now necessary to examine more minutely what circum- 
 stances are necessary in order to call it into operation, or 
 to justify its application. 
 
 1, There must appear in the instrument itself a clear 
 intention on the part of the donor to dispose of what is 
 not his own (g) ; and, as has been mentioned, if there is 
 such a clear intention, it is immaterial whether he knew 
 the property not to be his own, or erroneously conceived it 
 to be so (h). 
 
 (e) Gretton v. Haward, 1 Swanst. 531 ; Dillon v. Parker, 1 Swanst. 
 
 433 ; Padbury v. Clarke, 2 Mac. & 359; Jac. 505. 
 
 G. 298 ; Rogers v. Jones, 3 Ch. D. (h) Thelluson v. Woodford, 13 
 
 688. Ves. 221 ; Coutts v. Achoorth, 9 Eq. 
 
 (/) Gretton v. Haward, sup. 519. 
 
 {y) Forrester v. Cotton, 1 Eden,
 
 CONDITIONS OF ELECTION. 411 
 
 There is often, liowever, considerable difficulty in ascer- Where 
 
 . . testator 
 
 taming precisely what the intention of the instrument is. has a 
 Thus if a testator has a partial interest in the property f^^lf^^ 
 dealt with, it will often be doubtful whether his language 
 is designed to refer to the whole property, and so to affect 
 the interest of another person, or whether it is to be con- 
 fined to his own partial interest only. In these circum- 
 stances the general tendency of the Court is to consider 
 the words as applying only to his own actual interest, and, 
 therefore, against the supposition of an intended elec- 
 tion (i) ; but if there is shown a clear intention to pass 
 the entirety, effect will be given to it ; and if the owner of 
 the other part takes other benefits by the will, he will be 
 put to his election (k). 
 
 Again, a mere general devise or bequest will only com- General 
 
 o > o . . J devise not 
 
 prehend property of which the devisor is owner, and extended 
 extrinsic evidence is not admissible to show that a testator ^J^^^'^ 
 considered property to be his own which was not so, and evidence ; 
 thus intended to comprise it in his general devise or 
 bequest (l). But the will itself may show such an inten- but may _ 
 tion to include in a general expression property not his evMence!^° 
 own as to give rise to a case of election. Thus an heir 
 in tail has been put to his election by a devise which 
 included an estate tail (m), the words used being " all my 
 real estates " and " all the lands occupied by me." " If," 
 said Sir John Romilly, in that case, " a testator says, ' I 
 give all the property I have in the world to A. B.,' and he 
 leaves a large legacy to his heir in tail, that will not raise 
 a case of election against such heir, because that testator 
 only gives what he has;" but it is otherwise when " there 
 is an intention shown on the face of the will to dispose of 
 the entailed estate away from the heir in tail." 
 
 (i) Maddison v. Chapman, 1 J. & (l) Blake v. Bunbury, 1 Ves. 523 ; 
 
 H. 470 ; Re Bidwell's SettmL 11 W. Stratton v. Best, 1 Ves. jr. 285 ; 
 
 R. 161. Clcmentson v. Gandij, 1 Kee. 309. 
 
 {k) Padhury v. Clark, sup. ; Wil- (m) Honywood v. Forster, 30 
 
 klnson v. Bent, 6 Ch. 339. Beav. 14.
 
 412 
 
 ELECTION. 
 
 There 
 must be a 
 fund avail- 
 able for 
 compensa- 
 tion. 
 
 Appoint- 
 ments 
 under 
 powers. 
 
 No elec- 
 tion be- 
 tween two 
 claims 
 arising 
 under the 
 same in- 
 strument. 
 
 2. As the doctrine of election depends upon compensa- 
 tion, it will not be applicable unless there be an available 
 fund from which compensation can be made. In other 
 words, there will be no ground for election unless the 
 testator or settlor bestows some property actually and 
 absolutely his own on the person who is required to 
 elect. 
 
 This limitation of the principle is most frequently illus- 
 trated by cases in which benefits are conferred by the 
 exercise of powers of appointment. A fund over which a 
 person has a mere power of appointment, there being a 
 gift over on default of the exercise of the power, is not the 
 absolute property of the donee of the power. There- 
 fore where a person under a power to appoint among 
 children made an appointment contrary to the terms 
 of the power, a child entitled in default of appointment 
 was allowed to set it aside, notwithstanding that a 
 share had been by the same instrument appointed to 
 him (n). He was not required to elect, because there was 
 no free disposable property of the appointor given to him 
 w^hich could be laid hold of to compensate the person dis- 
 appointed. So where a testator had an exclusive power 
 of appointment over an estate to his children and grand- 
 children, and an exclusive power to appoint a fund to his 
 children only, and he appointed the estate to some of his 
 children, and the fund to his children and a grandchild, 
 the children were not called upon to elect in favour of the 
 grandchild, the appointment to whom was ult7'a vires ; no 
 property of the testator's own having been given to them 
 by the will (o). 
 
 3. There is no case for election between two or more 
 separate dispositions contained in one instrument. In 
 other words, election only applies between a gift given by 
 some instrument, and a claim dehors that instrument. 
 Thus a testatrix who had a power to appoint a fund in 
 
 (n) Bristowe v. Ward, 2 Ves. (o) la re Fowler's Trust, 27 Beav. 
 
 336. 362.
 
 CONDITIONS OF ELECTION, 413 
 
 favour of her children, appointed by her will a portion 
 thereof to her son for life, with remainder as he should by 
 will appoint; and there followed a general residuary ap- 
 pointment of the settled fund, subject to all other appoint- 
 ments, to her daughters, to whom benefits out of the 
 testatrix's own property were at the same time given. 
 It was held that the appointment in favour of the ap- 
 pointees of the son was void for remoteness. That 
 portion, therefore, passed under the residuary appointment 
 to the daughters. It was then argued that as the 
 daughters received independent gifts from the testatrix, 
 the appointees of the son could put them to their elec- 
 tion between such gifts and the fund accruing to them 
 in consequence of the previous decision ; but it was decided 
 that there was no case for election, both claims arising 
 from the same instrument {p). 
 
 On a similar principle, a person to whom by the same Beneficial 
 will a beneficial and an onerous bequest or devise are rous be- 
 made, is not required to elect whether he will accept ^^®^*^- 
 both or neither. He may, if he pleases, accept the benefit 
 and reject the burden {q), unless, indeed, the will shows 
 a clear intention that the acceptance of the burden 
 should be a condition of receiving the benefit (7"). 
 
 4. Election only applies to cases of bounty, not to cases Election 
 of debt. If, therefore, there is a devise to creditors for the able to^ ^°* 
 payment of their debts, they can accept the benefit of it debts, 
 without any prejudice to their legal rights against other 
 funds disposed of by the will (s). Such was the law be- 
 fore real property was liable to all debts. Since 3 & 4 
 Will. IV. c. 104, general creditors having a right to 
 proceed against all the property of the deceased, such 
 questions can rarely arise. 
 
 The principle of election is in itself sufficiently simple 
 and clear, but its application in the ever varying circum- 
 
 (p) Wollastonx. King, 8 Eq. 165; (r) Warren v. Rudall, 1 J. & H 
 
 Wallinger v. W., 9 Eq. 301. 13. 
 
 (q) Andrews. Trinity Hall, 9Ves. (s) Kidney v. Cortssmaker, 12 Ves. 
 
 525. 136 ; Ley v. D., 2 P. Wnis. 412.
 
 414 ELECTION. 
 
 stances of practice often involves questions of considerable 
 difficulty. It is only possible here to add as a further 
 illustration some notice of the leading classes of cases on 
 which discussion has taken place. 
 
 III. Election arising from the exercise of Powers. 
 Appoint- 1. We have already seen that no election is necessitated 
 
 ment ultra , , • , . ^ ^ c 
 
 vires and by an improper appointment under a power, wnere no tree 
 gift to disposable property of the donor of the power is at the 
 
 person r i. t. >j a ^ 
 
 entitled in same time bestowed. If, however, an appointment is made 
 ® ^^ '■ to a person who is not an object of the power, and at the 
 same time a gift of the donor's property is made to a 
 person entitled in default of appointment, the principle of 
 election applies. Here, the appointment itself being in- 
 valid, the property would naturally pass as if there had 
 been no appointment, to the person entitled in default. 
 But since an independent benefit has been conferred upon 
 him by the same instrument, the conditions upon which 
 the principle of election rests are precisely complied with; 
 and he must either conform to the instrument by giving 
 up his title to the appointed property, or if he insists on 
 that, he will not be suffered to receive the gift conferred 
 upon him {t). 
 Appoint- 2. But it will not suffice to raise a case of election, if 
 direction ^ after appointing to persons who are objects of the power, 
 to transfer and at the same time giving them propert}^ of his own, 
 to mo^dify.^ the appointor directs them to settle the property on per- 
 sons who are not objects of the power (u). In short, 
 where there is an absolute appointment to an object of the 
 power, followed by attempts to modify the interest so 
 appointed in a manner which the law will not allow, the 
 Court reads the instrument just as if such attempts had 
 
 it) Whistler v. Wcbsto', 2 Ves. jr. (u) Carver v. Bowles, 2 R. & M. 
 
 367. 304 ; Churchill v. C, 5 Eq. 44. 
 
 J
 
 ARISING FROM THE EXERCISE OF POWERS. 415 
 
 not been made (x). A fortiori merely precatory words, 
 requesting appointees, objects of the power, to leave the 
 fund appointed to others not objects of the power, will not 
 put them to their election (y). A clause of forfeiture on 
 non-compliance may, however, suffice to necessitate elec- 
 tion (z). 
 
 3. If the donee of a power by the same instrument Appoint- 
 appoints to a stranger, and confers benefits out of his own ™,^°*a,nd''" 
 property upon an object of the power, the position is gift to 
 different from that in which the appointment is made to power, 
 the person entitled in default of appointment. The ap- 
 pointment being invalid, the property passes to the person 
 entitled in default of appointment. He cannot be required 
 
 to elect, because no gift of the appointor's property is made 
 to him. Nor, it seems, can the object of the power be 
 required to elect, because no part of the property subject 
 to the appointment comes to him. It is, indeed, laid down 
 in Blacket v. Lamb (a) that such an appointment would 
 give rise to election ; but it is submitted that this cannot 
 be so, since the two funds in question never come to the 
 same hand at all. Of course, if the same person is both 
 object of the power and entitled in default of appoint- 
 ment, the case falls within the principle of Whistler v. 
 Webster (b), already discussed, and he must elect between 
 the gift and the fund which comes to him in consequence 
 of the invalidity of the appointment. 
 
 4. If the donee of a non-exclusive power of appoint- 
 ment among a class (to whom the property was limited in 
 default of appointment) appointed exclusively to one object, 
 and by the same instrument conferred benefits on the others 
 out of his own property, the latter were formerly put to their 
 election (c). Now, by 37 & 38 Vict. c. 37, however, such 
 an appointment is valid, and the question cannot arise (d). 
 
 (x) Woolndge v. W., John. 63. (a) Sup. 
 
 (y) Blacket \. Lamb, WSieiiv. i%2; [h) Sup. 
 
 Langslow v. L., 21 Beav. 552. (o) Sugd. Pow. 579 ; Wollen v. 
 
 (2) Kinrjy. K., 15 Ir. Ch. R. 479; Tanner, 5 Ves. 218. 
 Boughton v. B., 2 Ves. sr. 12. (d) See p. 175.
 
 ELECTION. 
 
 5. Where there is an attempt by the instrumentality of 
 a power to transgress the policy of the law — for instance, to 
 evade the rule against perpetuities — the Court will not aid 
 such an attempt by applying the doctrine of election (e). 
 
 IV, Election with reference to Dower. 
 
 1. At law a widow might by express words be put to 
 her election between her dower and a gift conferred upon 
 her by will (/). In equity she may be put to her election 
 by manifest implication, showing an intention of the donor 
 to exclude her from dower (g). The principal questions 
 which have arisen in this subject have been as to what 
 amounts to a sufficient indication of intention to bar the 
 lesral right to dower, 
 
 2. It has been decided, where the widow was married 
 before 1834, that a devise to a widow of part of the 
 lands of which she is dowable was not inconsistent to 
 her claim to dower in the remainder (h). Nor is a devise 
 upon trust for sale of lands subject to dower sufficient 
 to show an intention against her right, even though the 
 interest of a part of the proceeds of sale is given to her 
 (?) ; and it is immaterial that in such a case there is a 
 direction that the rents and profits are in the meantime 
 to be applied in the same way as the income to arise 
 from the produce of the sale (k). Nor is a gift by the 
 husband to the widow of an annuity or rent-charge 
 charged upon such lands so inconsistent with her claim 
 to dower as to put her to her election (I). 
 
 On the other hand, where wills have contained pro- 
 visions which prescribed a mode of enjoyment incon- 
 sistent with the exercise of dower rights, these have 
 
 (c) Wollaston v. King, 8 Eq. 165. 
 
 (/) Gosling v. Warburton, Cro. 
 Eliz. 128 ; Nottley v. Palmer, 2 Drew, 
 93. 
 
 (g) Birmingham v. Kirwan, 2 S. 
 & L. 452; Hall v. Hill, 1 Dr. & 
 
 W. 94, 103. 
 
 (h) Lawrence v. L., 2 Vern. 365. 
 
 (?) Ellis V. Lewis, 3 Ha. 310. 
 
 (1-) Gibson V. G., 1 Drew, 42, 57. 
 
 (I) Holdich V. H.,2 Y. & C. C. C. 
 19; Harrison v. H., 1 Keen, 765.
 
 MISCELLANEOUS CASES. 417 
 
 been held sufficient to show an intention that the widow incon- 
 should forego her dower, and thus to put her to her elec- with 
 tion. For instance, a power of leasing given to persons *^°^''^''' 
 other than the widow sufficed to necessitate election (wi). 
 The same effect was ascribed to a devise of a farm to 
 trustees with a direction for them to carry on the busi- 
 ness, or let it on lease (n) : so where the widow has been 
 directed to pay rent for and not to aliene lands legally sub- 
 ject to dower (o), and where occupation by persons other 
 than the widow has been directed (p), and where there 
 was a direction to cut down timber on the estate (q). 
 This last case refers, indeed, to freebench, which is, how- 
 ever, in this respect subject to the same principles as 
 dower. 
 
 3. Since the Dower Act, 1834 {>•), came into operation. Dower 
 cases as to election respecting dower have naturally become " ' 
 of less frequent occurrence, dower being now much more 
 easily barred than previously. Thus by sect. 9 thereof a 
 devise of the land is, in the absence of indication of con- 
 trary intention, sufficient to bar dower (s). A gift of per- 
 sonalty, however, made to the widow, or of any land not 
 subject to dower, will not prejudice her right unless a 
 contrary intention is declared (t). 
 
 V. Miscellaneous Cases. 
 
 1. Although under the old law a devise to the heir was Devise 
 in a sense inoperative, inasmuch as he was held still to take 
 by descent, and not by purchase as devisee, the leading case 
 of Noys V. Mordaunt (u) decided that such a devise was a 
 sufficient gift to raise a case of election between such 
 
 (to) O'Hara v. Chaine, 1 J. & H. (<?) Thompson v. Burra, 16 Eq. 
 
 662. 592. 
 
 {n) Butcher v. Kerap, 5 Mad. 61. (r) 3 & 4 Will. IV. c. 105. 
 
 (o) Birmingham v. Kirivan, 2 S. & [s) See Rowland v. Cuthbertson, 8 
 
 L. 444. Eq. 466; Laceij v. Hill, 19 Eq. 346. 
 
 (p) Miall V. Brain, 4 Madd. 119; {t) s. 10. 
 
 Roadley v. Dixon, 3 Russ, 192. ((() Supra, p. 407. 
 
 E E
 
 wills. 
 
 ELECTION. _ 
 
 property and other gifts conferred by the will, and this 1 
 decision was consistently followed until by 3 & 4 Will. IV- 
 c. 106 it was enacted that such devises should cause the 
 land to pass to the heir as a purchaser. Since this statute 
 there is, d fortiori, a necessity for election under such 
 devises (v). 
 Imperfect 2. Where there is a want of capacity to make an effectual 
 will, effect will not be given to an invalid disposition by 
 applying the doctrine of election ; unless, indeed, the 
 alternative gift is made by way of express condition. 
 
 Thus, prior to the Wills' Act (x), when an infant whose 
 will was valid as to personalty, but invalid as to real 
 estate, gave a legacy to his heir-at-law, and devised his 
 real estate to another person, the heir was not required to 
 elect (y). 
 
 3. Again, where a testator prior to the Wills' Act, by a 
 will valid as to personalty, but not sufficiently attested to 
 devise freeholds, gave to his heir a legacy, and purported 
 to devise the real estate to another, the heir was not 
 required to elect, but might at the same time take the 
 legacy and claim the real estate (z). If, however, the 
 bequest was made conditional upon compliance with the 
 devise, election was required («). And in a case in which 
 a testator purported to devise after-acquired property away 
 from his heir, and at the same time left him a legacy, he 
 was required to elect (6). 
 
 But since 1 Vict. c. 26, which remodels the whole law of 
 wills, making the mode of attestation uniform as to both 
 realty and personalty, and giving power to effectually 
 devise after- acquired property, such cases can no longer 
 occur. 
 
 An heir of heritable property in Scotland, who becomes 
 entitled to it on account of the invalidity of a will accord- 
 
 (v) Schroder v. S., Kay, 578. 481 ; Gardiner v. Fell, 1 J. & W. 
 
 (a;) 1 Vict. c. 26. 22. 
 
 [y) Hearle v. Greeribank, 1 Atk. {a) Bowjldon v. B., 2 Ves. sr. 12. 
 
 715. (b) Thelluson v. Woodford, 13 Ves, 
 
 [z) Sheddon v. Goodrich, 8 Ves, 209.
 
 MISCELLANEOUS CASES. 419 
 
 ing to the solemnities required by Scotch law, and who 
 takes by the same will real or personal property in this 
 country, will be required to elect (c). 
 
 Where there is incapacity to make a will owing to 
 coverture, as where a married woman makes a valid 
 appointment by will to her husband, affecting at the same 
 time to bequeath to another a fund not included in the 
 power, there is no case for election, and the husband is 
 entitled to take the bequeathed fund jure mariti, without 
 foregoing the benefit of the appointment {d). 
 
 4. A person is not obliged to elect between benefits con- Derivative 
 ferred upon him by an instrument, and an interest which 
 
 he takes derivatively from another who has elected to take 
 in opposition to the instrument. Thus where a wife had 
 elected to retain an estate tail against a will, which con- 
 ferred benefits upon her husband, the husband was held 
 entitled to curtesy in the estate (e). Nor is election 
 required where a benefit is conferred by an instrument, 
 and the recipient at the same time claims against the 
 instrument but derivatively from the real owner, who 
 received no benefit therefrom ; for instance, where a gift is 
 made to a husband in his own right, and his adverse claim 
 is made as representative of his wife (/). 
 
 5. Where special directions are given as to election, it Qualified 
 may be confined to particular gifts, so as to prevent elec- 
 tion as to other parts of the instrument. Thus in East v. 
 
 Cooh (g) a testator devised property belonging to his eldest 
 son to his second son, and amongst other gifts to the eldest 
 son he gave him a piece of property which he stated to be 
 in lieu of the piece of property which he pur]3orted to take 
 away from him. The eldest son was held to be put to his 
 election only as to those two pieces of property, so that he 
 
 (c) Brodie v. Barry, 2 V. & B. (/) Grissell v. Sidnhoe, 7 Eq. 291 ; 
 127; OrrellY. 0., 6 Ch. 302. but see Cooper v. C, 6 Ch. 21; 7 
 
 (d) Rich V. CocMl, 9 Ves. 369. L. R. H. L. 53. 
 
 (c) Caran v. Pidteney, 2 Ves. 544; {y) 2 Ves. sr. 30. 
 3 ib. 384. 
 
 E E 2
 
 420 
 
 ELECTION. 
 
 Devise to 
 co-owner. 
 
 might retain his own without foregoing the other benefits 
 conferred by the will {h). 
 
 6. If a testator who has an undivided interest in a par- 
 ticular property devises that property specifically to his 
 co-owner, the devisee must elect between his interest in the 
 property and the interest he takes under the will. General 
 words, however, would, as we have seen, be taken to apply 
 only to the testator's own interest, and would not necessi- 
 tate an election (i). 
 
 VI. Mode of effecting Election. 
 
 Account 1. Persons who are put to their election are entitled to 
 Squired, ascertain the respective values of their own property and 
 of that conferred upon them, and may commence an action 
 to have all requisite accounts taken {j). If, however, a 
 cause relative to the same matter is already in existence, 
 the necessary inquiries may be directed therein without 
 the initiation of fresh proceedings (A;). An election made 
 under a mistake or in ignorance will not be binding (/). 
 
 2. Special rules apply to cases of election by persons 
 under disability. 
 Election Where an infant is required to elect, one of two courses is 
 
 y m an s. ^p^^^ rpj^^ election may, as in Streatfielcl v. Streatfielcl (m), 
 be deferred until the attainment of full age. Or there 
 may be an immediate reference to Chambers to inquire 
 what course would be most beneficial to the infant (n). 
 Sometimes an order has been made without such refer- 
 ence (o). 
 
 The practice, also, as to election by married women has 
 not been uniform. Usually an inquiry has been directed as 
 
 Married 
 women. 
 
 (h) See Wilkinso7i v. Dent, 6 Ch. 
 339, 341. 
 
 (i) Miller v. Tliurf/ood, 33 Beav. 
 496. 
 
 ( /) Buttricke v. Broadhurst, 3 Bro. 
 C. C. 88. 
 
 {k) Dourjlas V. D., 12 Eq. 617. 
 
 (/) Pusey V. Desbouvrie, 3 P. Wms. 
 315 ; Wake v. Tl'., 3 Bro. C. C. 255. 
 
 (m) Ca. t. Talb. 170. 
 
 (n) Biglcmd v. Huddlestone, 3 Bro. 
 C. C. 285, n. ; Ashhurnham v. A., 13 
 Jnr. 1111. 
 
 (o) Lamh v. L., 5 W. R. 772.
 
 THE EFFECTS. 421 
 
 to what course is most beneficial, and they are required to 
 elect within a limited time after the report (p). 
 
 3. Election may be implied from circumstances, and there ^J^pI^^^ 
 18 often much difficulty in deciding as to what acts will 
 amount to implied election. As we have seen, any such 
 acts, to be binding on a person who is required to elect, 
 must be done with a knowledge of his rights. They must 
 also be done with a knowledge of the right to elect (q), 
 and with an intention of electing (r). Mere continuance 
 in receipt of the rents and profits of, or the exercise of acts 
 of ownership over, both properties, by a person who has not 
 been called upon to elect, cannot evidently be construed 
 into an election to take one and reject the other (s). 
 
 Acquiescence in the enjoyment of one of the properties Acquies- 
 by other persons may be so long continued as to render it 
 inequitable to disturb them on a plea of ignorance of 
 rights (t) ; but no precise rule can be laid down to limit 
 such time (tt). 
 
 Where a specific time has, as in Streat/ield v. Streat- Time. 
 Jield (y), been limited for election, a person who does not 
 elect within such time will be deemed to have elected 
 against the instrument. 
 
 VII. The effects of Election. 
 
 1. Election, whether ex|)ressed or implied, by a person Whom 
 siii jaris and absolutely entitled, of course binds all who i^j^^^ 
 claim under him as well as himself The election, how- generally, 
 ever, of a person having a limited interest, will not bind 
 others who are entitled in remainder {iv), and each of the 
 successive remainder-men has a separate right of election {x). 
 
 [p) Davis V. Page, 9 Ves. 350 ; {t) Tihhits v. T., 19 Ves. 663 ; 
 
 Wilson V. Toivnsend, 2 Ves. 693. Bewar v. Maitlaml, 2 Eq. 834. 
 
 ('^) iJriscoe V. A, 7 Ir. Eq. R. 123; («) See Wake v. IF., sup.; Sop- 
 
 1 J. & L. 334. ^vith v. Mawjham, 30 Beav. 235. 
 
 (r) Stratford v. PoikU, 1 Ball. & [v) Sup. 
 
 B. 1 ; BiUoji V. Parker, 1 Swanst. (iv) Ward v. Baur/h, 4 Ves. 623 ; 
 
 380, 387. -£". of Northumberland v. E. of Aijles- 
 
 (s) Padhury v. Clark, 2 Mac. & J. ford, Amb. 540, 657. 
 
 298. {x) 1 Swanst. 408, n.
 
 422 ELECTION 
 
 Similarly each member of a class — for instance, next of kin 
 — has a distinct right to elect ; the majority cannot bind 
 anyone (y). 
 Election 2. Election by a married woman binds both her real and 
 woman. personal estate in the hands of her heirs and representa- 
 tives (z), and may be effected without deed acknow- 
 ledged (a). Where she has so elected the Court can order 
 20 & 21 a conveyance to be made accordingly (6), Prior to 20 & 
 Vict. c. 57. 21 Vict. c. 57, a married woman could not elect to relin- 
 quish a reversionary interest in personalty (c), but there 
 seems to be now no reason why such a restriction should 
 continue to exist. She could not, until recently, elect to 
 part with property which is subject to a restraint on 
 anticipation (d). Now the Court has power to dispense 
 with the restraint with her consent, when it appears to be 
 for her benefit to do so (e). 
 
 (y) Fytche v. F., 7 Eq. 494. (c) Robinson v. Whedivright, 6 De 
 
 {z) Ardesoife v. Bennet, 2 Dick. 463. G. M. & G. 535, 546. 
 
 (a) Barroio v. £., 4 K. & J. 409. (d) Ibid., supra, p. 353. 
 
 (&) Ibid. (c) 44 & 45 Vict. c. 41, s. 39.
 
 GENERAL PRINCIPLE. 423 
 
 Section II. — Conversion and Reconversion. 
 
 Conversion. 
 
 General Principle. 
 
 Fletcher v. Ashbiirner. 
 I. How effected. 
 II. Effects of Conversion. 
 
 III. Thne from which Conversion takes place. 
 
 IV. Effects of failvure of pui'poses of Conversion. 
 
 Ackroyd v. Smithson. 
 V. Cliaractey of resulting propeHy. 
 
 Reconversion. 
 
 General Principles. 
 
 1. Persons electing must he sui juris. 
 
 2. Election does not aff\'ct interests of others. 
 
 3. What amounts to election. 
 
 Conversion, 
 
 It is a familiar maxim that equity looks upon that as 
 
 clone which ou^ht to have been done. There is uo better Statement 
 
 ft) 
 illustration of the meaning of this than that supplied by princLie 
 
 the equitable doctrine of conversion, which is thus ex- 
 pressed by Sir Thomas Sewell in the leading case of 
 
 FLETCHER v. ASHBUBNEB 
 [1 Bro. C. C. 497 ; 1 W. & T. L. C. 896]:— 
 
 " Money directed to be employed 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
 
 CONVERSION. 
 
 maaner the direction may be given — whether by will, by 
 way of contract, marriage articles, settlement, or otherwise — 
 and whether the money is actually deposited, or only cove- 
 nanted 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." These words are quoted and supported by Lord 
 Alvanley in Whelclale v. Partridge (e). 
 
 The consequences of this doctrine are of very great 
 interest and importance, and being often not a little intri- 
 cate, they require full and careful consideration. The first 
 inquiry naturally is, how conversion may be effected. 
 
 Conver- 
 sion by- 
 express 
 intention. 
 
 Implied 
 intention 
 
 must be 
 clear. 
 
 I. Conversion, how effected. 
 
 Conversion may arise either from the intention of the 
 owner of the property in question, or by the act of the 
 Court or of third persons. 
 
 1. Conversion arising by intention of the oiuner. 
 
 The intention to effect a conversion may be either ex- 
 press or implied. An express direction needs no special 
 consideration ; and the leading case already quoted suffi- 
 ciently illustrates the rule that a direction in a deed or 
 will for the conversion of land into money or money into 
 land will have the effect of impressing upon the property 
 in equity the changed form intended. 
 
 It has also been decided that even without express direc- 
 tion conversion may be effected by a clear indication of in- 
 tention — as, for instance, where a testator gives real estate 
 too-ether with personal estate to be divided into equal 
 shares, and directs some of such shares to be invested in 
 government funds (/). The intention must, however, be 
 clearly apparent ; mere ambiguous language will not 
 suf&ce (g). 
 
 (e) 5 Ves. 388, 396. 
 
 (/) Mower v. Orr, 7 Ha. 475. 
 
 (g) Coi-nick v. Pearce, 7 Ha. 477.
 
 HOW EFFECTED. 425 
 
 Difficulty is often occasioned by the use of expressions Optional 
 
 . . , c 1 • powers of 
 
 wnicn give to trustees an optional power ot sale or invest- sale 
 meiit. Generally speaking no conversion is effected unless 
 the language is imperative. Thus a gift of money upon 
 trust to lay out the same upon a purchase of lands or to 
 put the same on good securities {h), or a devise of realty 
 with a discretion to sell {%), will not effect conversion. The 
 property will remain in the same state in which it is 
 found. 
 
 But in accordance with the rule that the intention of sometimes 
 the party if discoverable is to prevail, there are cases in version, 
 which language giving an apparent option has by the con- 
 text been considered sufficiently imperative to effect con- 
 version. This has been the case where, after a direction to 
 lay out money in the purchase of land or other securities, 
 words of limitation have been used which are applicable 
 only to real estate (1\). The same was held in Earlom v. 
 Saunders (I), where Lord Hardwicke said : — " This Court 
 never admits trustees to have such election to change the 
 right unless it is expressly given to them. Here the 
 money is to be laid out in lands or securities for such uses 
 as the land is before settled. If it is laid out in securities 
 (which are personal) all the limitations might not take place. 
 ... . The only way to make the clause consistent is that 
 the money be laid out on securities till lands are purchased, 
 and the interest and dividends in the meantime to o'o to 
 such persons as would be entitled to the land." Where 
 trustees had an express option given to them to sell real 
 property and to reinvest on realty or personalty, the new 
 purchase to follow the same trusts, estates, and limitations 
 as the original estate, and they sold and invested on mort- 
 gage, it was held that there was a conversion {m). The 
 distinction apparently was that in the latter case the 
 trustees had an express power of sale in the first instance, 
 
 {h) Curliny v. May, cited 3 Atk. 361. 
 255. (I) Amb. 241. 
 
 (i) Bourtie v. B., 2 Ha. 35. [m) Ativell v. A., 13 Eq. 23. 
 
 (^■) Coivley V. Harstowje, 1 Dow.
 
 42li CONVERSION. 
 
 ^vhL'reas in the former the money was given to them to 
 invest on express limitations, so that their election was 
 only as to temporary investment, not as to the general 
 treatment of the fund. 
 Direction A somcwliat similar distinction is taken when there is 
 oil the '^ direction to convert at the request of certain persons, 
 request of jf ^j,g words of recjuest are merely inserted for the pur- 
 persons, pose of enforcing the obligation to convert, then, although 
 conversion takes place without a request having been made, 
 it will be considered to have been properly effected (n). It 
 was there said : " Nothing is more common than to direct 
 money to be laid out upon request. The object of that is 
 only to ensure that the act shall be done when the request 
 is made, not to prevent it until request " (o). But if the 
 words requiring the request or consent are inserted for the 
 purpose of giving a discretion to the persons concerned, 
 and then a sale takes place without such request, it will be 
 considered improper, and there will be no conversion (_p). 
 Partial Where, again, a mere discretionary power to convert 
 
 under property is given to trustees, and only a partial con- 
 discretion- ygj-sion is made before the power is extinguished by the 
 
 ary power. ^ ° "^. . 
 
 death of the trustees, the property must be taken as it is 
 found by those entitled, according to its character (q). It 
 is otherwise in the case of an imperative power in the 
 nature of a trust (/■). 
 Express Where from the nature of the transaction there is 
 
 power of . • , , • i J r 1 
 
 sale does evidently no intention to convert, an express power or sale 
 not t2^so ^^,-^1 j^,j^ effect conversion. 
 
 jacto con- 
 vert. This is the case in mortgages. The general intention of 
 
 ^■'^■' a mortgagor is to raise money, not to alter the condition or 
 
 the mode of devolution of the property. On the death of 
 
 a mortgagor, therefore, the equity of redemption devolves 
 
 upon his heir or devisee, notwithstanding a power of sale 
 
 in the mortgage, and a provision that the surplus monies 
 
 {n) Thwnton v. Hawley, 10 Ves. {q) Walter v. Mannde, 19 Ves. 
 
 129. 424 ; Rich v. Whitfdd, 2 Eq. .583. 
 (o) Per Sir W. Grant, M. R. (»•) Grieveson v. Kirsopp, 2 Keen, 
 
 {p) Davies v. Goodliew, 6 Sim. 585. 653.
 
 HOW EFFECTED. 427 
 
 arising from a sale shall be paid to the mortgagor, his 
 executors, or administrators. Thus if the sale does not 
 take place till after the death of the mortgagor, his heir or 
 devisee will be entitled to the money ; though if the sale 
 takes place in the mortgagor's lifetime the conversion will 
 be complete, and the money will become the personal estate 
 of the mortgagor (s). 
 
 2. By act of Court, or third parties. 
 
 There are also cases in which conversion takes place Conver- 
 apart from any intention of the owner of the property. from the 
 
 Thus if the real estate of a bankrupt is in his lifetime ^'^^er^s 
 
 1 1 • • -1 11 intention. 
 
 contracted to be sold, it is considered to be converted ; and i^ bank- 
 upon his death intestate his heir-at-law will not be entitled r^ptcy. 
 to it, or to any part of it not required for the satisfaction 
 of his debts {t). 
 
 In the case of a lunatic, the Court will not generally Forbenetit 
 alter the state of the property so as to affect his successors, 
 but it may do so when it is for the benefit of the lunatic 
 himself (u), and when it does so the conversion produces 
 all its natural consequences {x). 
 
 The law with regard to infants seems now to be on the or infant, 
 same footing. Previous to the Wills' Act (y), when an 
 infant might bequeath his personalty at an earlier age than 
 he could devise his realty, there was great indisposition in 
 the Court to interfere with this right by converting his 
 property, and it was only done in cases of urgent 
 necessity {z). But this reason now no longer exists, and 
 there is, therefore, nothing to distinguish the case from 
 that of a lunatic (a). 
 
 In the absence of special clauses for that purpose, the 'Pnrchase 
 effect of a Railway Act is not to alter the devolution of Railway 
 property without the consent of the owner ; and, therefore, •^^*- 
 
 (s) Wright v. Rose, 2 S. & S. 323. 10 Ch. 79. 
 
 {t) Banks v. Scott, 5 Mad. 493. (y) 1 Vict. c. 26. 
 
 (m) Oxenden v, Compton, 2 Ves. jr. (~) Exp. Grimstone, sup. 
 
 72 ; Exp. Phillips, 19 Ves. 124. (a) Dyer v. D., 34 Beav. 504 ; and 
 
 (x) Exp. Grimstone, Anib. 706 ; 4 see Exp. Bromfield, 1 Ves. jr. 461 ; 3 
 
 Bro C. C. 235 ; In re Mary Smith, Bro. C. C. 515.
 
 428 
 
 CONVERSION. 
 
 Purchase 
 under 
 compul- 
 sory 
 powers ; 
 8 & 9 Vict. 
 c. 18. 
 Lunatic. 
 Infant. 
 
 Sale under 
 
 Partition 
 
 Acts. 
 
 Married 
 woman. 
 
 if a company contract with an incapacitated person, as a 
 lunatic, the purchase-money of land will not be deemed to 
 have been converted (6). 
 
 When land was taken by virtue of comj)ulsory powers 
 under the Lands Clauses Consolidation Act, 1845 (c), from 
 a person of unsound mind not so found by inquisition, and 
 the money was paid into Court, it was held that there was 
 a conversion, and on the owner's death intestate his personal 
 representatives were entitled {d). But more recently, 
 where the land of an infant was taken by a railway com- 
 pany under sect. 69 of this Act, it was held that the 
 purchase-money retained its character of real estate, and 
 descended to the infant's heir-at-law {e). 
 
 In the case of a sale of infant's property under a decree 
 in a partition action, it was also held that there was no 
 conversion and the proceeds of sale retained their character 
 of realty, by virtue of sect. 8 of the Partition Act, 
 1868 (/). _ 
 
 A married woman may, under sect. 7 of the Lands 
 Clauses Act ((/), dispose of a reversionary interest in real 
 proj)erty to a railway company so as to convert the proceeds 
 into personalty (It). 
 
 Money 
 converted 
 into land 
 acfjuires 
 
 II. The effects of Conversion. 
 
 These may be most conveniently discussed by distin- 
 guishing the case of the conversion of money into land 
 from that of land into money. 
 
 1 . Of money into land. 
 
 Generally speaking, money directed to be laid out in 
 land, whether by contract or will, acquires all the properties 
 of land. Thus it will descend as land to the legal heir (i). 
 
 (6) M. C. R. Co. V. O'jivin, 1 Coll. 
 74, 80 ; Re Sloper, 22 Beav. 198, 
 cited. 
 
 (c) 8 & 9 Vict. c. 18. 
 
 (d) E.cp. Flamank, 1 Sim. N. S. 
 260. 
 
 (e) Kdland v. Fulford, 6 Ch. D. 
 
 491. 
 
 (/) 31 & 32 Vict. c. 40. Foster v. 
 F., 1 Ch. D. 588. 
 
 (5?) 8 & 9 Vict. c. 18. 
 
 (h) Coojjer V. Gostling, 4 Giff. 449. 
 
 (t) Sciulamore v. S., Prec. Ch. 543.
 
 THE EFFECTS OF. 429 
 
 In what character it will be taken by an heir will be else- properties 
 where considered (k). It will pass by a general devise (l), 
 and not by a general bequest (m). It will be subject to 
 tenancy by the curtesy (n) ; but was not subject to dower, 
 while it did not attach on equitable estates (o). Now, by 
 virtue of 3 & 4 Will. IV. c. 105, it presumably will be so. 
 
 But in some respects money directed to be laid out in Excep- 
 land is not impressed with the quality of land. It is not 
 deemed land for fiscal purposes, but is liable to legacy, not 
 to succession, duty(2>). Upon the death of a person 
 entitled without heirs, it will not escheat to the Crown (q), 
 nor was it formerly forfeited to the Crown for felony (r). 
 All such forfeiture is now abolished (s). 
 
 2. Of land into money. 
 
 Following the analogy of the converse case, land Land 
 notionally converted into money will pass to the personal money, 
 representatives of a deceased person it), or will be included 
 under a general residuary bequest (u), and will not be 
 affected by a devise of land [x). An alien, even previous 
 to 33 Vict. c. 14, was entitled to the proceeds of sale of 
 land devised to be sold for his benefit (y). The proceeds 
 of sale of a real estate directed to be sold are liable to legacy 
 duty(0); but not to probate duty («). 
 
 There are exceptions also in this case : thus monies to How far 
 arise from sales of land are within the provisions of the [^^amv^of 
 Mortmain Act (6). It, however, does not escheat to the land. 
 Crown upon a failure of heirs, nor has the Crown any right 
 to come into equity to ask that the land shall be converted 
 
 (h) p. 430. (s) 33 & 34 Vict. c. 23, s. 1. 
 
 \l) Greenhill v. G., 2 Vern. 679. (t) Ashby v. Palmer, 1 Mer. 296. 
 
 {m) Edwards v. C. of Warivick, 2 (u) Stead v. Newdigate, 2 Mer. 
 
 P. Wms. 171. 521. 
 
 {n) Siveetapple v. Bindon, 2 Vern. (x) Elliott v. Fisher, 12 Sim. 505. 
 
 586. (y) Du Hourmielin v. Sheldon, 1 
 
 (o) Cunningham v. Moody, 1 Ves. Beav. 79 ; 4 My. & Cr. 525. 
 
 sr. 174, 176. [z) 55 Geo. III. c. 184 ; Att.-Gen. 
 
 [j)) ReDeLancy,6'L. E. Ex. 102. v. Holford, I Pri. 426. 
 
 (?) Walker v. Denne, 2 Ves. jr. {«) Watson v. Sidft, 8 Beav. 368. 
 
 170, 185. {h) 9 Geo. II. c. 36; Att.-Gen. v. 
 
 (?•) Re ffarrop's Estate, 3 Drew, WeymouthfAmh. 2Q; Brookv. Badley 
 
 726. 4 Eq. 106 ; 3 Ch. 672.
 
 430 CONVERSION. 
 
 in order that it may take as bo7ia vacantia. Even if it 
 has been actually converted, but unnecessarily so, the Crown 
 cannot make good its claim ; the money will belong to the 
 trustees (c). 
 
 3. Character of converted i^roperty. 
 
 Nature of We have seen that money dii^ected to be laid out in 
 
 property. ^^^^^ acquircs the descendible property of land, so as to 
 
 pass in case of intestacy to the heir. The question then 
 
 often arises as to the character in which the heir receives 
 
 it — that is, whether it becomes his real or his personal 
 
 property. This is evidently an all-important inquiry as 
 
 between his representatives, when the heir thus receiving 
 
 the converted money dies without having made any dis- 
 
 Depends position thereof. The nature of the property in the hands 
 
 on manner ^ , , . , , i i t i i i 
 
 of con- 01 the heir has been held to depend upon the manner m 
 
 version. which the conversion has taken place. 
 
 First, if the converted money was bequeathed to be 
 invested in land for the use of A. and his heirs, or on his 
 marriage money has been paid by him, or paid or cove- 
 nanted to be paid by a stranger to trustees, to be laid out 
 in land and settled in strict settlement, with remainder to 
 the heirs of A., then A. will hold the converted money as 
 land, and on his decease his heir will be preferred to his 
 personal representative {d). 
 
 Secondly, if A. has covenanted to lay out a sum of 
 money in land to be settled on himself for life, remainder 
 to his wife for life, remainder to the issue of the marriage, 
 and he dies leaving his wife or any issue of the marriage 
 surviving him, then also the conversion continues to 
 operate ; and on the death of the wife and issue, the heir 
 of A. will be entitled to it (e). 
 
 But if, in such a case as the last, A. does not leave 
 any wife or issue him surviving, then on his decease his 
 personal representative will be entitled ; the distinction 
 
 (c) Taylor v. Hayrjartli, 14 Sim. 543 ; Dklicr v. D., 1 P. Wms. 204. 
 8 ; Oradoch v. Owen, 2 Sm. & G. (e) Kettleby v. Atwood, 1 Vern. 
 241. 298, 471. 
 
 (d) Scudamoix v. <S'., Prec. Ch.
 
 TIME FROM WHICH (CONVERSION TAKES PLACE. 431 
 
 being, that in this case the obligation to lay out the 
 money and the right to call for it have become centered 
 in the same person, so that the covenant may be con- 
 sidered discharged. There is then no equity left in his 
 heir to call for the money from his personal represen- 
 tative (/). 
 
 The principle may perhaps be thus expressed : if at the Principle 
 death of the person first entitled to the converted fund distinc- 
 there still exists an enforceable obligation to convert it, *'°"'^- 
 the effect of the conversion continues, and the heir takes ; 
 but if previous to his death this obligation ceases, the 
 right to demand and the duty to effect the conversion 
 centering in the same person, then the effect of the con- 
 version ceases, and on his death his personal represen- 
 tative takes (g). 
 
 III. Time from ivhlch Conversion takes place. 
 
 Many important questions depend upon the question as General 
 to the precise time from which the doctrine of conversion ^in^e of 
 begins to operate upon the property concerned. The cpnver- 
 general principle is that where an absolute conversion is directed, 
 directed to be made, it takes effect at the time at which 
 the instrument directing it comes into operation. Thus in 
 the case of a will the conversion takes place at the death 
 of the testator (A). In the case of a deed it takes place 
 at the date of the execution and delivery (?) ; and this 
 notwithstanding that the actual transmutation is directed 
 not to take place until a future time (Ji). 
 
 When conversion takes place not under the intention of In bank- 
 the owner, the time of its operation depends upon circum- 
 stances. Thus in the case of the sale of a bankrupt's real 
 estate, if such sale takes place after the death of the 
 
 (/) Chichester v. Bickerstaffe, 2 {h) Beauclerh v. Mead, 2 Atk. 167. 
 
 Vern. 295 ; Pulteney v. Darlington, (i) Griffith v. Riclcetts, 7 Ha. 299. 
 
 1 Bro. C. C. 223. (/•) Hewitt v. Wright, 1 Bro. C. C. 
 
 {y) Wheldale v. Partridge, 8 Ves. 86 ; Clarke v. Franklin, 4 K. & J. 
 
 235. 257.
 
 432 
 
 CONVERSION. 
 
 In com- 
 pulsory 
 purcbases. 
 
 Where 
 conversion 
 depends 
 on the 
 option of 
 a third 
 person. 
 
 bankrupt, no actnal conversion having taken place in his 
 lifetime, whatever remains after satisfying the creditors 
 will belong to his heir-at-law (I), though, as we have seen, 
 if the sale took place in his lifetime the surplus would 
 pass to his next of kin. Thus conversion only takes place 
 at the time of the contract for sale. 
 
 A mere notice to treat by a company having compulsory 
 powers of purchasing land will not operate as a conversion 
 thereof into personalty (m). As soon, however, as the 
 quantity and price is fixed between the landowner and the 
 company, conversion takes place (n). The same is the 
 case when the price is fixed by arbitration (o), by valu- 
 ation (j»)), or b}^ verdict of a jury (q). The actual time of 
 conversion seems to be the completion of a binding agree- 
 ment if voluntary, or the ascertaining of the definite 
 terms of the transaction if compulsory (>'). 
 
 In a case in which the conversion is not absolutely 
 directed, but is made to depend upon the option of 
 another person, the same general rule applies. Thus 
 where a farm was leased to A. for seven years, and on the 
 lease was endorsed an agreement that A. should have an 
 option within a given time of purchasing the inheritance 
 for £3000, it was held that the conversion took place as 
 from the execution of the lease ; and the lessor having- 
 died before the option of purchase was exercised, the 
 money was treated as part of his personal estate (s). 
 Nevertheless, until the option in such a case is exercised, 
 the rents and profits go to the person entitled to the real 
 estate (t). The result therefore is that the ultimate desti- 
 nation of the property depends entirely upon the choice 
 of the person who has the option of purchase. If he elects 
 
 (I) Banks v. Scott, 3 Madd. 493. 
 
 (m) Haynes v. H., 1 Dr. & Sm. 
 426 ; Exp. Arnold, 32 Beav. 591 ; 
 Richmond v. N. L. R. Co., 5 Eq. 
 352. 
 
 (n) Exp. Hcmhins, 13 Sim. 
 569. 
 
 (o) Harding v, Met, Ry. Co., 7 Ch. 
 154. 
 
 (p) Watts V. W., 17 Eq. 217. 
 
 (q) I/aynes v. //., sup. 
 
 (r) See also Re Di/l'es' Estate, 7 Eq. 
 337 ; Re M. & S. R. Co., 19 Beav. 
 365. 
 
 (s) Lawes v. Bennett, 1 Cox, 167. 
 
 {t) Toicnley v. Bedwell, 14 Ves. 
 591 ; Exp. Hardy, 30 Beav. 206.
 
 EFFECTS OF FAILURE OF PURPOSES OF CONVERSION. 433 
 
 not to purchase, it remains real estate ; if he elects to 
 purchase, it is deemed converted into personal estate, and 
 the conversion is deemed to relate back to the time when 
 the option was given. 
 
 Such is the case where there is nothing to indicate a Intention 
 contrary intention on the part of the original owner ; but jf ascer- 
 like all secondary rules respecting the construction of ^^i'^^^^'-'- 
 instruments, it is subject to the primary rule that the 
 intention of the owner, Avhere it can be ascertained, is to 
 prevail. If, therefore, in the instrument by which the 
 option is given, there is an express direction that the 
 purchase-money shall be paid to the person who is then 
 the owner of the estate, he alone will be entitled to it (a). 
 And if, after having given an option of purchasing certain 
 real estate, a testator specifically devises the same estate, 
 this amounts to a sufficiently clear indication of intention 
 respecting it to entitle the devisee to the purchase-money 
 when the option has been exercised {x). No such intention 
 would be inferred from a mere general devise, after the 
 agreement {y) ; nor if the agreement for the optional pur- 
 chase is made subsequently to the will containing a specific 
 devise of the property {z). 
 
 IV. Effects of failure of the purposes for tvhich Conversion 
 is directed. 
 
 1. Where conversion is voluntary. 
 
 The general rule is that when a conversion is directed 
 bywill, and the purpose for which the conversion was 
 intended totally fails before the will comes into opera- Total fail- 
 tion, that is in the testator's lifetime, no conversion 
 will take place, and the property so directed to be con- sion. 
 verted will result to the testator in its orioinal form 
 
 («) Ee Graves Minoi; 1.5 Ir. Ch. 722. 
 
 Rep. .3.57. (y) CoIIingwood v. Row, 5 W. R. 
 
 (x) Drant v. Vause, 1 Y. & C. Ch. 484. 
 
 580 ; Emuss v. Smith, 2 De G, & S. (-') Weediny v. TT'., 1 J. & H. 424. 
 
 F F 
 
 conver-
 
 4o4 CONVERSION. 
 
 unchanged («). "Every conversion, however absolute in 
 its terms, will be deemed to be a conversion for the 
 purposes of the will only, unless the testator distinctly 
 indicates an intention that it is, on the failure of those 
 purposes, to prevail as between the persons on whom the 
 law casts the real and personal property of an intestate, 
 namely, the heir and next of kin " (h). 
 Partial jf ^[jg failure is but partial, conversion will take place 
 
 failure; . rv j xi r 
 
 conversion Only to such extent as IS necessary to etiect the purpose ot 
 *^^®^ , the will And, in as far as it is not required for that 
 
 place only ' _ -^ 
 
 so far as purposc, it will result unchanged. Thus in 
 
 necessary. 
 
 ACKROYD V. SMITHSON 
 
 [1 Bro. C. C. 503 ; 1 W. & T. L. C. 949] 
 
 a testator gave several legacies, and ordered his real and 
 personal estate to be sold, and his debts and legacies to be 
 paid out of the proceeds of the sale : he gave the residue 
 thereof to certain legatees in the proportion of their 
 legacies. Two of these residuary legatees died in the life- 
 time of the testator. It was held that these lapsed shares, 
 « so far as they were constituted of personal estate, should 
 go to the testator's next of kin, and so far as they were 
 constituted of real estate to his heir, notwithstanding the 
 directed sale. Even where there was a direction that the 
 proceeds of real estate should be deemed personalty, and it 
 was expressly declared that it should not lapse for the 
 benefit of the heir-at-law, the heir-at-law was held not to 
 be excluded. It was considered that the declaration was 
 only intended to apply as far as conversion was required 
 for the purposes of the will, and that it did not prevent the 
 law from dealing with a surplus in accordance with its 
 usual rules (c). The heir will only be excluded by a gift 
 over, in case of a lapse (d). 
 
 The same result follows where money arising from land 
 
 («) Hillv. Cod; 1 V. & B. J7'>; {<■) Fltrh v. Wehci; sup.; Collins 
 
 Pitch V. Weber, 6 Ha. 145. v. Wakeman, 2 Ves. jr. 683. 
 
 (b) 1 Jarni. Wills. 530, 2nd ed. (</) Ibid.
 
 EFFECTS OF FAILURE OF PURPOSES OF COXVERSION. 435 
 
 directed to be sold is given over on an event which never 
 happens (e), and where the whole or a part of the purpose 
 for which it is given fails for illegality, as, for instance, 
 being void under the Mortmain Act (/), or being so limited 
 as to transgress the rule as to perpetuities {g). 
 
 The rule that conversion takes place only so far as the ^"\^ 
 
 . applies 
 
 purposes of the will require, applies equally whether it be whether 
 land converted into mone}^ or money into land (/<). And it ^.Q^^g^^g^j 
 will have been seen from the cases of Achroyd v. S'iiiithson into money 
 and Jessop v. Watsoi}, above referred to, that it is imma- i-crsd. 
 terial that there is a blending of the proceeds of sale of Blending 
 
 1, •.! ,1 1, of proceeds 
 
 realty with the personalty. of^ale and 
 
 So far we have considered only those cases in which, personalty 
 there being a failui-e of the purposes for which conversion rial, 
 is directed, the conflict as to who shall take the lapsed Effect of 
 property is only between the heir and next of kin. The 
 testator, however, may provide for a lapse by making a 
 gift over of the property which may be thus released. If Specific 
 such a gift over is specific and clear, no difficulty arises ; 
 but conflict is often occasioned where the only gift over is 
 in the form of a residuary devise or bequest ; it being 
 frequently open to question whether such residuary gift 
 was intended to comprise the undisposed-of shares. 
 
 One class of cases is that in which the dispute is between Residuary 
 the heir and a residuary legatee. In Maugha/in v. Mason (i) ^°^^^' 
 a testator devised freeholds to trustees and their heirs upon 
 trust to sell and to apply the proceeds of sale towards the 
 payment of debts and legacies, the rents until sold to be 
 applied to the same uses, and, after giving some pecuniary 
 and specific legacies, as to the rest residue and remainder 
 of his personal estate after payment of his debts, legacies, 
 and funeral expenses, he bequeathed the same to his 
 trustees, their executors, administrators, and assigns, upon 
 
 (e) Jessop V, Watson, 1 My. & K. 290. 
 665. (k) Cor/an v. Stephens, 1 Beav. 
 
 (/) Att.-G. V. ZotyZ Weymouth, 482, n ; Sinwions v. Pitt, 8 Ch. 978. 
 Amb. 20. (i) V. & B. 410. 
 
 {(/) Burleij V. EveJyn, 16 Sim. 
 
 F F :i
 
 436 CONVERSION, 
 
 trust, to convert all the said residue into ready money, and 
 to lay out the same in the purchase of freehold property 
 to be settled as therein mentioned. The executors in fact 
 paid all the debts, legacies, and funeral expenses out of 
 the personal estate, and did not sell the freeholds. It was 
 held that tlie freeholds resulted to the heir-at-law, and 
 were not comprised in the residuary bequest. The prin- 
 ciple was that the conversion vi^as only directed for a parti- 
 cular purpose, and as that purpose never required it, there 
 was no conversion, and consequently none of the results of 
 conversion followed. If, however, the testator had declared 
 expressly that the proceeds of the real estate should be 
 considered a part of the personalty, the case would have 
 been otherwise ; that would have shown that the conversion 
 was not merely intended to be for a particular purpose, 
 but to be absolute, carrying with it all its consequences ; 
 and the proceeds of sale would accordingly be included in 
 the residuary bequest (k). Apart even from such an 
 express declaration, there may be in the circumstances of 
 the case such an indication of intention as will lead to the 
 same result ; the blending of the proceeds of sale Avith the 
 personalty supplies an argument in favour of such an 
 Intention intention (I). The intention to exclude the heir must, 
 the^heir howevcr, be clear. The true test is, whether the conver- 
 must be gJQj^ ig directed only for particular purposes or is intended 
 
 clear. 
 
 to be absolute (m). 
 
 Kesiduary The cases are now rare in which there is a conflict 
 dcvis©. 
 
 between the heir and the residuary devisee, since, by the 
 Wills Act (n), sect. 25, it is enacted that unless a contrary 
 intention appears in the will, such real estate or interest 
 therein as shall be comprised, or intended to be comprised, 
 in any devise in such will contained, which shall fail or be 
 void by reason of the death of the devisee in the lifetime 
 
 (k) Kidney v. Coussmalcer, 1 Ves. 605. 
 
 jr. 436 ; Brifjht v. Lurcher, 3 De G. (m) Amphlett v. Parke, 2 R. & M. 
 
 & J. 1.56. 221. 
 
 {/) Byain v. Mnnton, 1 R. & M. (n\ 1 Vict. c. 26. 
 503; Court v. BucUand, 1 Ch. D. 
 
 I
 
 EFFECTS OF FAILUilE OF PURPOSES OF CONVERSION. 437 
 
 of the testator, or by reason of such devise being contrary 
 to law, or otherwise incapable of taking effect, shall be 
 included in the residuary devise (if any) contained in such 
 will. As to the law in cases not within this Act, refer- 
 ence may be made to Coll ins v. Wakernan (o), Jones v. 
 Mitchell (p). 
 
 In the case of a failure of the purposes of conversion Failure of 
 under an instrument inter vivos, the property results to of'con'-'^^ 
 
 the settlor or grantor. In what character he takes it, as 'version in 
 
 . settlemeiit 
 
 between his real and personal representatives, we shall inter vivos 
 presently inquire. toTettlOT 
 
 2. Conversion by order of the Court. 
 
 It has been decided that the doctrine of Ackroyd v. Sale under 
 Sriiithson does not appl}^ to the case of a sale under an the Court, 
 order of the Court. Where lands were sold in order to 
 raise the costs of an infant's partition suit, it was held that Complete 
 the personal representative was entitled to the surplus (q). notwith- 
 The sale being properly made there was an immediate standing 
 conversion, and there was no equity to effect a recouver- failure, 
 sion. The case, therefore, rather resembles in principle an 
 instance of conversion under a deed, than the case of a 
 partial failure of the purposes of conversion under a will. 
 
 This rule, however, is of course subject to any statutory unless 
 provisions which apply iu particular cases. Thus where direct the 
 real estate to which infants were entitled was sold under contrary, 
 a decree in a partition suit, the proceeds of sale were, 
 by section 8 of the Partition Act, 1868 (r), treated as Partition 
 realty (s). The same was the case in a sale under the 
 same circumstances of the separate estate of a married 
 woman {t). The same again was held in a sale under the L. C. C. 
 Lands Clauses Act, 1845, s. 69 (it). '^'^*' ^^^^• 
 
 (o) 2 Ves. jr. 683. {t) Mildmay v. Quicke, 6 Ch. D. , j /> j^ 
 
 (p) 1 S. & S. 290. 553. ^^- ' ■'• ^'^" ' '^--^^ ,. /*^*-< /^^t. 
 (5) Steed V. Prtece, 18 Eti. 192. (m) Kelland v. Fulford, 6 Ch. D. 
 
 ('/•) 31 & 32 Vict. c. 40. 491. 
 («) Foster V. P., 1 Ch. D. 588.
 
 438 CONVERSIOX. 
 
 V. In ivkat Character Unconverted Property results. 
 
 The next inquiry is, whether an heir who takes land 
 directed to be sold, on failure of the purposes of conversion, 
 takes it as real or as personal property ; and a similar 
 inquiry follows respecting the next of kin taking under 
 analogous circumstances. The questions often arise be- 
 tween the real and personal representatives of the persons 
 thus benefitting by the resulting trust. 
 
 1. First as to an heir taking land directed to be sold on 
 a lapse. 
 Heir takes Where conversion is directed by will, and there is a 
 land there failure of the purposes for which it is directed, the quality 
 conversion ^^ which it results to the heir depends upon the question, 
 by wiU ; whether an actual sale is required for the purposes of the 
 if sale is ^^^q_ jf g^^j-^ ^ g^^jg jg necessary, then, whether it has 
 necessary, i p i i p i i • 
 
 as person- actually taken place or not before the death oi the heir, 
 
 *^*^' the property results in a converted form as personalty ; 
 
 and will, on the death of the heir intestate, pass to his 
 
 next of kin (x). 
 
 If sale not On the contrary, if there is no necessity for any sale in 
 
 aslancr^' Order to carry out the trusts of the will — if, for instance, 
 
 there is a total failure of the purposes of conversion — then 
 
 the property results to the heir as realty, and will on his 
 
 death intestate descend to his heir (,?/). And if a sale has 
 
 unnecessarily been effected, this will not vary the rights of 
 
 the parties (z). 
 
 Under in- In the case of a conversion arising under an instrument 
 
 huer^viros '^''>^^^^' 'VIVOS, the questioii takes a somewhat different form. 
 
 if purpose In tliis casc, if there be an entire failure of the purposes 
 
 fails « ^^ conversion ah initio, no conversion is deemed to have 
 
 t^xxvio^ no 
 
 conversion taken place at all, and the property results to the settlor 
 
 (x) Smith V. Claxton, 4 Madd. H. 673. 
 
 492 ; Wright v. W., 16 Ves. 188. (:) Davenport v. Coltman, 12 Sim. 
 
 (ij) Vhitty V. Parker, 2 Ves. jr. 610. 
 27i ; BvcJuDKin v. Harrison, 1 J. <.V
 
 I 
 
 IX WHAT CHARACTER UNCONVERTED PROPERTY RESULTS. 439 
 
 or grantor in its original form (a). If there is only a partial *^^®s 
 failure, then the conversion operates, in accordance with j£ faiuire 
 the usual rule, from the execution and delivery of the deed, i« only _ 
 and having once taken place, whatever results, results in results in 
 its converted form (b). It will be observed that the ^*^^ ^°^' 
 
 . . . verted 
 
 underlying principle is just the same as in the case of a fonn. 
 will. In each case the quality of the resulting property 
 depends upon the question of the necessity for actual 
 conversion. 
 
 2. When money is directed to be laid out in land, and Money 
 the purposes for which conversion was directed fail wholly ^|, ^^ jj^j^j 
 or partially, the money in so far as not required results as out in 
 to the personal representative (c). But whereas, as we 
 have seen in the case of a resulting trust of realty, the 
 question as to the quality in which it results depends upon Whatever 
 whether a conversion has been necessary or not ; in the £^11"^ ^^ 
 case of a resulting trust of personalty there is no similar results as 
 condition. In all cases, whether a partial conversion has 
 been necessary or not, whatever results, results as per- 
 sonalty {d). The reason of the distinction is, that in the 
 case of lapsed realty the law carries it to the heir, who is 
 entitled to it whether it remains in its original condition 
 or not. But in the case of laj)sed personalty it comes to 
 hand not of the next of kin, but of the executor ; and 
 whatever he gets in qua executor, he must hold as 
 personalty. 
 
 Reconversion. 
 
 Although land directed or agreed to be converted into Election 
 money, or money directed or agreed to be converted into uncon^ ^^ 
 land, are, as we have seen, at once impressed in equity verted 
 with a new character, still it is open to a person receiving 
 the converted property, if not under disability, to elect to 
 
 (a) Hewitt v. Wri'jld, 1 Bro. C. C. (c) Cogan v. Stevens, 1 Beav. 482, 
 86 ; Clarke v. FrankUii, 4 K. & J. n. 
 
 257. (d) Reynolds v. Oodlce, 1 Johns. 
 
 (b) Griffith v. Micketts, 7 Ha. 299 ; 536. 
 WMdale v. Partridge, 8 Ves. 236.
 
 440 
 
 RECONVERSION. 
 
 Presump- 
 tion 
 against 
 recon- 
 version. 
 
 Person 
 electing 
 nrnst be 
 sui juris. 
 Lunatic. 
 
 Married 
 woman. 
 
 take it in its original state. It has been said that " equity, 
 like nature, will do nothing in vain " (e) ; and it would evi- 
 dently be vain and useless to insist that a person should 
 take a fund in the quality of land, when he prefers it in 
 the form of money, and can at any moment reduce it to 
 that form by a sale. It is necessary to consider certain 
 rules which regulate this power of electing against an 
 instrument which directs conversion. 
 
 The right of electing to reconvert is simple enough 
 when the person claiming to do so has an absolute interest 
 in the property in question. It is to be observed, how- 
 ever, that the presumption is against reconversion. In 
 case of any dispute as to the fact, the onus of proof 
 is on those who allege that the owner has elected to 
 take in the original form rather than in that directed 
 by the instrument which effected the conversion (/). 
 Further : — 
 
 1. The person aj^ecting to elect must he sui juris. 
 
 Tims a lunatic cannot elect (</) ; neither can an infant (h) ; 
 but in some cases, where it has been manifestly for his 
 advantage, the Court has elected for him (i). 
 
 A married woman with respect to her separate estate is 
 regarded as sui juris, and is competent to elect (k). With 
 regard to property not so limited, the law depends upon 
 the Fines and Recoveries Act (/). Previous thereto, she 
 could not, where money was directed to be laid out in land, 
 alter its nature by contract or deed (m). She might, 
 however, elect to take it as money by consent after 
 examination in Court (;?), and the same result was some- 
 times reached by the device of making a sham purchase. 
 By section 77 of the above Act, she may now by deed 
 
 (e) Seeley v. Jaf/o, 1 P. Wms. 389. 
 
 (/) Sisson V. Giles, 3 De G. J. & 
 S.614; nW. B.. 971; Benson V.B., 
 1 P. Wms. 130. 
 
 (g) Ashhy v. Palmer, 1 Mer. 296. 
 
 (A) Cai-r V. Ellison, 2 Bro. C. C. 
 66. 
 
 (t) Robinson v. R., 19 Beav. 494. 
 [k) tSliarp V. St. Sauveur, 7 Ch. 
 343. 
 
 (/) 3 & 4 Will. IV. c. 74. 
 
 (»i) Oldham v. Huyhes, 2 Atk. 453. 
 
 (m) Ibid.
 
 WHO MAY ELECT TO RECONVERT. 441 
 
 acknowledged efFectiially elect to take as mouey (o). Under 
 the same section, she may in the same manner elect to take 
 in its original form real estate directed to be converted into 
 money ( j:)), even though it be reversionary (q). 
 
 2. No one can so elect as to bind any interests save Person can 
 his own and those of persons claiming through him. Thus his^owl^ 
 a remainder-man cannot elect to take as money a fund "^terest by 
 
 . election. 
 
 directed to be laid out in land, against the wish of the 
 tenant for life, who has a right to insist on having it laid 
 out as directed (r). And in the same case it was laid down 
 that even if a remainder-man purported so to elect, he could 
 not do so, so as to affect the rights of his real and personal 
 representatives in case of intestacy ; and that, therefore, his 
 heir would, notwithstanding his attempt, be entitled to the 
 money. He may, of course, by deed or will dispose of his 
 own interest in such a manner as he pleases (s). 
 
 A tenant-in-tail of money directed to be invested in Tenant-in- 
 land might as against his issue elect to take as money (t), ^ ' 
 but he could not prejudice the rights of remainder-men (u). 
 Now, by the Fines and Recoveries Act (cc), section 71, 
 money directed to be laid out in lands to be settled in tail 
 is for the purposes of that Act to be treated as the lands 
 to be purchased would be treated, and to be considered 
 subject to the same estates as the lands to be purchased 
 would, if purchased, have been actually subject to. 
 
 The same principle applies when the property in question Person 
 is bestowed on a number of persons in undivided shares. |^ ui^iif 
 If election to take it in its original form can be made with- ■"'i^'i 
 out prejudice to the others it is allowable ; if not, it is not -en .■' 
 so. The application of this leads to the following distinc- oi one may 
 tion. If money is directed to be laid out in land and fudice^' 
 devised to a number of tenants in common, then any one others. 
 
 (o) Forbes v. Adams, 9 Sim. 462. (s) Llivjen v. Sowrai/, 1 P. Wms. 
 
 (p) Bri;jgsv. Chamberlain, 11 Ha. 172. 
 
 69 ; Franks v. Botlans, 3 Ch. 717. {t) Bciison v. B., sup. 
 
 («7) Tuer v. Turner, 20 Beav. 560. («) Trafford v. Boehm, 3 Atk. 440. 
 
 (r) Sissoii V. Giles, sup. (x) 3 & 4 Will. IV. c. 71.
 
 442 
 
 RECONVERSION. 
 
 Person 
 entitled 
 contin- 
 gently. 
 
 Intention 
 expressed. 
 
 Intention 
 
 implied 
 
 from 
 
 lanffua^e ; 
 
 from acts. 
 Illustra- 
 tions. 
 
 or more may elect to take his or their shares as money ; 
 since this will in no wa}^ interfere with the others having 
 the money laid out in land if they so choose {y). But if 
 land is directed to be sold and the money divided equally, 
 then it is not open to one of the co-legatees to elect to take 
 his share as land ; for to allow this would prejudice the 
 sale, and so interfere with the rights of the others (s). 
 
 A person contingently entitled to the proceeds of real 
 estate directed to be sold may, pending the contingency, 
 elect to take the estate as realty, and such election will 
 become operative upon the contingency happening before 
 or upon his death {a). 
 
 3. How an election to reconvert 'may he effected. 
 
 (1.) When there exists an election to reconvert, this may 
 of course be effected by an express declaration of intention. 
 A parol declaration has been often held sufficient (&), but 
 was refused in Bradish v. Gee (c). 
 
 (2.) Election m9,y be implied from language which does 
 not amount to an express declaration ; for instance, where 
 a fund had been agreed to be laid out in land, a description 
 thereof in a will as money amounted to an election to take 
 it as personalty (d). Similarly a devise of land as such 
 amounted to an election to take as land, notwithstanding 
 that a sale had been directed (e). 
 
 (3.) Election may be implied from the acts of the party 
 entitled ; and very slight circumstances will suffice. Thus 
 keeping land unsold for a long time raises a presumption 
 of an election to take as land (/). Two years' retention 
 was, however, considered insufficient (g). The granting of 
 a lease and reserving a rent was held sufficient evidence of 
 an intention to reconvert (Jt) ; and the same was the case 
 
 {y) Seeleyv. Jago, 1 P. Wras. 389 ; 
 Walker v. Denne, 2 Ves. jr. 1 82. 
 
 (s) Deeth V. Hale, 2 Mall. 317 ; 
 Holloway v. Itadcliffe, 23 Beav. 163. 
 
 (a) Meek v. Devemsh,6 Ch. D. 566. 
 
 (6) Edwards v. Warwick, 2 P. 
 Wms. 174 ; PuUeney v. BarUnrjton, 
 1 Bro. C. C. 237 ; WheldaU v. Part- 
 ridge, 8 Ves. 236. 
 
 (c) Amb. 229. 
 
 id) PuUeney v. Darlington, sup, 
 
 (e) Sharp v. St.Sauveur, 7 Ch. 343. 
 
 (/) Dixon V. Gayfei'e, 17 Beav. 
 433 ; Mutlow v. Bigg, 1 Ch. D. 385. 
 
 {g) Kirkman v. Miles, 13 Ves. 
 338. 
 
 (A) Orabtree v. Bramble, 3 Atk. 680.
 
 HOW THE ELECTION MAY BE EFFECTED 443 
 
 where the cestui que trust of lands settled on trust for sale 
 obtained possession of the title deeds, and retained them 
 together with possession of the land until his death (?'). 
 Acts, however, which show an intention to reconvert lands 
 directed to be sold, in which a person has an immediate 
 interest, were held not applicable to lands devised by the 
 same will, the direction to convert which was only to come 
 into operation after a life interest still in existence. The 
 intention to reconvert those in possession did not imply a 
 similar intention as to others in remainder (Jy). 
 
 When money directed to be laid out in land is received 
 by the beneficiary from the trustees, it is deemed to 
 be reconverted (/) ; but the receipt of the income for a 
 long time was not considered sufficient (m). Where 
 securities for monies were assigned to trustees, to be invested 
 in land to be settled upon a man and his wife with an 
 ultimate limitation to the man's right heirs, and the husband 
 died after some of the money had been laid out on other 
 personal securities in trust for him, his executors, and 
 administrators, there was held to be an election to take 
 the money as personalty (n). 
 
 The mere neglect of trustees to perform their duty of 
 efifecting a conversion which is directed, will not affect the 
 rights of others through the medium of the principle of 
 reconversion. It falls rather withia the doctrine of 
 primary conversion, which rests, as we have seen, on the 
 maxim that equity regards that done which ought to have 
 been done (o). 
 
 (i) Davksv. Ashford, 15 Sim. 44. & Sm. 372 ; Re Pedders Settlement, 
 
 (k) Meredith v. Vick; 23 Beav. 5 De G. M. & G. 890. 
 
 559. (h) Linr/en v. Sowray, 1 P. Wms. 
 
 [1] Pidteney v. Darlington, snjh; 172; Coolson v. C, 12C1. &F. 121. 
 
 Eook V. Worth, 1 Ves. si\ (o) Lechmere v. E. of Carlisle, 3 
 
 {m) Gillies v. Longlands, i De Gr. P. Wms. 215.
 
 444 SATISFACTION. 
 
 Skctiun ill. — Satisfaction and Performance. 
 
 Satisfaction. 
 
 Definition. 
 I. Where the claim alleged to be satisfied arises from 
 bounty. 
 
 1. Satisfaction of legacies by portions (Ademp- 
 
 tion). 
 
 Exp. Pye. 
 
 2. Satisfaction (f portions by legacies. 
 
 Hinchcliffe u Hinchcliffe. 
 Thynne v. Earl of Glengall. 
 
 3. Repetition of legacies. 
 
 Hooley v. Hatton. 
 II. Satisfaction of Debts. 
 
 1. By legacies. 
 
 Talbot V. Shrewsbury. 
 Chancey's Case. 
 
 2. By portions. 
 
 Performance. 
 
 Contrasted tcitJi Satisfaction. 
 
 1. By act of the party. 
 
 Wilcocks V. Wilcocks. 
 Lechmere v. Earl of Carlisle. 
 
 2. By opercdion of laiv (Intestacy). 
 
 Blandy v. Widmore. 
 
 Definition. In the Construction of instruments equity often re- 
 cognises a principle known as the doctrine of satisfaction. 
 It arises in cases where a donor, being already under 
 some obligation to the donee, effects a donation under
 
 ADEMPTION OF LEGACIES. 
 
 44; 
 
 circumstances which indicate an intention that this shall be 
 taken in satisfaction of the prior obligation. 
 
 When this intention is expressed, no comment is re- Intention 
 quired ; for where the subsequent gift is expressly bestowed 
 in extinguishment of the prior demand, the donee clearly 
 cannot claim both (p). 
 
 But in many cases this intention has to be implied from Intention 
 circumstances, and then considerable difficulty is often 
 experienced. In dealing with them it will be convenient Division 
 to distinguish between those cases in which the prior " ^^ ^ 
 obligation arises from an act of bounty and those in which 
 it is of the nature of a debt. 
 
 In the former class fall the cases of the satisfaction of 
 legacies by portions (commonly named ademption), and 
 conversely the satisfaction of portions by legacies. From 
 the similarity of the principles involved, we sliall here 
 also consider the case of the repetition of legacies in the 
 same instrument, sometimes referred to as the satisfaction 
 of legacies by legacies. 
 
 The latter head comprises the satisfaction of debts by 
 legacies and by portions. After discussing this, we shall 
 contrast it with the somewhat similar but distinctive 
 doctrine of performance. 
 
 I. Where the claim alleged to be satisfied arises from 
 
 bounty. 
 
 1. The satisfaction of legacies by 2')ortion8 (Ademiit'wn). 
 This subject was elaborately discussed and expounded in 
 the leading case 
 
 EX PARTE PYE, EX PARTE DUBOST 
 
 [18 Ves. 140 ; 2 W. & T. L. C. 338], 
 
 where it was laid down as a general rule, that where a 
 parent gives a legacy to a child, not stating the purpose 
 
 (p) Hardinyham v. Thomas, 2 Drew, 353.
 
 446 
 
 SATISFACTION. 
 
 Founda- 
 tion of the 
 l)rinciple. 
 Leaning 
 against 
 double 
 portions. 
 
 for which he gives it, he is understood to give a portion ; 
 and, since equity regards double portions with disfavour, 
 if the parent afterwards advances a portion on the mar- 
 riage of the child, the presumption arises that it was 
 intended to be a satisfaction of the legacy, either wholly 
 or in part. 
 
 (1.) From this case it is seen that the principle of 
 ademption generally rests on the leaning of equity against 
 double portions. The rule of presumption against double 
 portions applies only as between a child and a parent, or 
 person who has placed himself in loco parentis. It has 
 been thus commented on by a learned judge : " A parent 
 makes a certain provision for his children by will, if they 
 attain twenty-one or marry, or require to be settled in 
 life ; he afterwards makes an advancement to a particular 
 child. Looking at the ordinary dealings of mankind, the 
 Court concludes that the parent does not, when he makes 
 that advancement, intend the will to remain in full force, 
 and that he has satisfied in his lifetime the obligation 
 which he would otherwise have discharged at his death ; 
 and having come to that conclusion as the result of general 
 experience, the Court acts upon it, and gives effect to the 
 presumption that a double provision was not intended. If, 
 on the other hand, there is no such relation either natural 
 or artificial, the gift proceeds from the mere bounty of the 
 testator, and there is no reason within the knowledge of 
 the Court for cutting off anything which has in terms been 
 given. The testator may give a certain sum by one 
 instrument, and precisely the same sum by another ; there 
 is no reason why the Court should assign any limit to that 
 bounty which is wholly arbitrary. The Court, as between 
 strangers, treats several gifts as prima facie cumula- 
 tive " {q). 
 
 With the exception hereafter to be noticed, then, a 
 parent and ^^^^^J is deemed to be satisfied by a portion only when 
 
 Relation 
 ship ; 
 
 (5) Suisse V. Loiother,'! Ha. 424, 435.
 
 ADEMPTION OF LEGACIES. 
 
 447 
 
 they are bestowed on a child by a parent or a person in child 
 loco parentis (r). The cases show that in this instance a fsg^^^^ij/ 
 mere natural relationship is not regarded, an illegitimate 
 child being deemed at law a stranger to its father (s). 
 The consequence is that an illegitimate child may happen 
 to find itself better provided for than it would have been 
 if legitimate. 
 
 (2.) It is often a matter of some difficulty to decide Locus 
 whether a person has placed himself in loco parentis to how'cle-' 
 another or not. This depends on the intention of the termined. 
 person. The question is whether he meant to put himself 
 in the situation of the lawful father of the child, as regards 
 his office and duty to make provision for the child (t) ; and 
 this question is of course one which must be decided 
 according to the facts of each particular case. It is not 
 possible to frame any precise formula by which to test the 
 intention of the donor. It is at any rate not necessary 
 that the person should in all respects adopt the child as 
 his own, or that there should be any actual relationship 
 between him and the child (u) ; and it is immaterial that 
 the father of the child is living, if he does not maintain 
 it (oc). 
 
 (3.) It appears that the only case in which a legacy not Exception; 
 given by a parent or person in loco parentis will be ^®=^^y ^°^ 
 
 ° •' J- ^ _ ^ _ express 
 
 adeemed by a subsequent portion, is where the legacy is purpose, 
 expressed to be given for a particular purpose, and money 
 is subsequently advanced for the same purpose {y). Where implied 
 a person left a legacy of £200 to his wife to be paid l^y^^g^f^ 
 within ten days after his decease, and afterwards at the cient. 
 request of his wife, within a few days of his death, gave 
 her a cheque for £200, in order that she might have a sum 
 at her immediate disposal on his death, there was held to 
 
 (r) Booker v. Allen, 2 E. & M. («) Roger v. South, 2 Kee. 598. 
 
 270. [x) Pym v. Lochjer, 5 My. & Cr. 
 
 (s) Exp. Pye, 18 Vea. 152. 29 ; Fo%fkes v. Pascoe, 10 Ch. 350. 
 
 {t) Exp. Pye, sup.; Powys v. {y) Debeze v. 3{ann, 2 Bro. C ('. 
 
 Mansfield, 6 Sm. 528 ; 3 My. & Cr. 165, 519 ; Monck v. M., 1 Ball &B. 
 
 359. 298, 303.
 
 448 
 
 SATISFACTION. 
 
 Portion 
 need not 
 be given 
 on mar- 
 riaye. 
 
 Presump- 
 tion not 
 repelled 
 by slight 
 differ- 
 
 or even 
 consider- 
 able dif- 
 ferences. 
 
 be no ademption, there being no expression in the will as 
 to the puqjose of the legacy (2). A fortiori there will be 
 no ademption Avhere the purpose of the legacy does not 
 correspond with that of the advancement (a), or the legacy 
 and advancement are given upon different contingencies (//. 
 
 (4.) Dismissing, then, this exceptional case, and remem- 
 bering that for our present purpose a person in loco 
 parentis is to be regarded as equivalent to a parent, we 
 have now only to consider the operation of the principle of 
 ademption as applying to gifts between a parent and child. 
 
 Advancements are naturally made and portions given 
 most frequently in connexion with the marriages of 
 children ; but this is by no means necessary to bring into 
 operation the leaning against double portions and the rule 
 of ademption (c). 
 
 The presumption in favour of ademption is so strong 
 that it will not be repelled by the fact that there are slight 
 differences of cu'cumstance between the legacy and the 
 portion. Differences between them as to the times of pay- 
 ment will not suffice ; thus where neither the legacy nor 
 the portion was payable till after the testator's death, but 
 the legacy was to vest in possession at the age of twenty- 
 one years or marriage, while the provision by the settlement 
 was payable within six months after the death, there was 
 an ademption ((/). 
 
 Nor wijl a material difference between the limitations 
 of the will and those of the settlement suffice (e). The 
 case of Durham v. Wharton (/) shows that ademp- 
 tion may take place in the face of very considerable 
 differences between the gifts. There a life interest in 
 £10,000 was given to a daughter by will, and after her 
 decease to all her children as she should appoint. On her 
 subsequent marriage, £15,000 was paid by the testator to 
 
 (2) Panlchurst v. Houell, 6 Ch. 
 136. 
 
 (a) Deheze v. Mann, 2 Bro. C. C. 
 165, 519. 
 
 {b) Spinks v. Robins, 2 Atk. 491. 
 
 (c) Leigkton v. L., 18 Eq. 458 ; 
 JVevin v. Drysdale, 4 Eq. 517. 
 (fZ) Hartopp v. H., 17 Ves. 184. 
 (e) Trimmer v. Bayne, 7 Ves. 508. 
 (/) 3 CI. & F. 146.
 
 ADEMPTION OF LEGACIES. 449 
 
 her husband, he securing by settlement pin money and a 
 jointure for his wife and portions for the younger children 
 of the man-iage. Still the legacy was held to have been 
 adeemed (g). A legacy to a daughter would not, however, 
 be adeemed by a simple gift made to her husband after 
 marriage not in pui'suance of a contract made before the 
 marriage {h). 
 
 Where after a legacy of a larger amount, a smaller Ademp- 
 sum is given by way of advancement or portion, it does tcmto. 
 not totally, but only jJ^o tanto, adeem the legacy (?'). It 
 will presently be observed that this strongly distinguishes 
 the principle of ademption from that of the satisfaction 
 of a debt by a legacy. 
 
 It was formerly considered that a residuary bequest, By a re- 
 being of an uncertain amount, was not susceptible ofjjequeit. 
 ademption (A;) ; but it has now long been established that 
 such a bequest may be adeemed either totally or pro tanto, 
 as the case may be (I). 
 
 It seems that the doctrine of ademption does not rest Where 
 solely on the ground that equity desires to secure equality ^l^^^ ^^l 
 between children, and for this reason discountenances ctikl. 
 double portions, as unduly favouring one; inasmuch as it is 
 applicable even in cases where the testator leaves only one 
 child (m). Where part of a resuhiary bequest to children 
 and a stranger is adeemed by an advance to one of the 
 children, the stranger will not be suffered to gain by the 
 ademption, the adeemed part being divisible amongst the 
 children only {n). Secus, however, where a pecuniary 
 legacy is adeemed (o). 
 
 (5.) The following cases will indicate the limits of the Limits of 
 application of the principle of ademption; and they serve ^ipie^" 
 
 (g) See also 3fonteJiorev. Guedalla, 85. 
 
 1 De G. F. & J. 93; Chichester v. [l) Schnlefield v. Heap, 27 Beav. 
 
 Coventry, 2 L. R. H. L. 71, 92. 93 ; Monteficn-e v. Guedalla, sup. 
 
 [h) Rarenscroft v. Jones, 32 Beav. [m) Ticiningv. Pouell, 2 Coll. 262; 
 
 669 ; 4 De G. J. & S. 224. and see 1 De G. F. & J. 103. 
 
 (i) Pyni V. Lockyer, 5 M_y. & Cr. (n) Meinertzhagen v. Walters, 7 Ch, 
 
 29 ; Klrh v. Ecldoices, 3 Ha. 509. 670. 
 
 {k) Freemantle v. Bankes, 5 Ves. (o) Kirk v, Eddowes, svp. 
 
 G G
 
 or purpose. 
 
 450 SATISFACTION. 
 
 well to show that ademption depends upon the presumed 
 intention of the testator. 
 No ademp- ^ legacy by a parent is not adeemed even pro tanto by 
 occasional occasional gifts made subsequently in the testator's life- 
 ^'^'^' time ; nor will the Court take an account of small sums 
 
 so given, to show that they were intended as a portion {p). 
 nor by a There is no presumption of law that the payment of a 
 madr" sum of money to a child previous to the making of the 
 before the ^^,-j| ^^^^^l operate as an ademption of a legacy therein con- 
 tained (g). But if a legacy has been once adeemed by a 
 subsequent advance, it will not be re-established by a 
 codicil made after it which purports to confirm the will 
 and all the bequests therein {r). 
 nor where There will be no ademption where the gifts in question 
 diffe^in ^^® ^^ different characters, or are expressed to be given for 
 character different purposes. Thus a legacy of £500 was not adeemed 
 by a subsequent gift of a part of the testator's stock in 
 trade (s) ; a legacy was held to be not adeemed by the 
 grant of an annuity (f), or by an advancement which 
 depended upon a contingency {u). 
 
 2. The satisfaction of j^ortions by legacies. 
 In the above cases, the question was whether a gift 
 having been made by will was satisfied by a subsequent 
 advancement made or portion given inter vivos. We now 
 come to the converse question, whether a portion having 
 been contracted to be given is satisfied by a subsequent 
 legacy. 
 
 One of the leading authorities on this branch of the 
 subject is 
 
 HINCHCLIFFE v. HINCHCLIFFE 
 
 [3 Ves. 51Gj, 
 
 from which we learn that most of the rules which we have 
 
 (p) Watson V. W., 33 Beav. 574 ; (r) Powys v. Mansfield, 3 My. & 
 
 Jie Peacock, 14 Eq. 236 ; Ravenscroft Cr. 359, 376. 
 
 V. Jones, 32 Beav. 669 ; 4 De G. J. (.s) Holmes v. H., 1 Bro. C. C. 
 
 & S. 224. 555. 
 
 (7) Taylor v. Cartwright, 14 Eq. (t) Watson v. W., sup. 
 
 167, 176. ((/) Spinks v. Robins, 2 Atk. 493,
 
 PORTIONS SATISFIED BY LEGACIES. 451 
 
 seen to be applicable in cases of ademption are of equal 
 authority here. Thus here also the foundation of the 
 doctrine is the distaste with which equity regards double 
 portions; and consequently this species of satisfaction, as 
 well as ademption, is, prima facie applicable only as 
 between children and a parent or person in loco "parentis. 
 From the same case, also, we observe that slight circum- 
 stances of difference will not suffice to prevent the opera- 
 tion of the usual presumption. 
 
 The similarity between the two classes of cases is further 
 seen from the important case of 
 
 THYNNE V. EARL OF GLENGALL 
 
 [2 H. L. 131], 
 
 in which a residuary bequest was held to be a satisfaction 
 of a covenant to bestow a certain portion on a daughter, 
 notwithstanding some important differences in the limita- 
 tions. 
 
 It does, however, seem that in these cases, where the Presump- 
 settlement precedes the will, the presumption against easily re- 
 double portions will be more easily rebutted than where t>"tted 
 
 . ^ "^ . than m 
 
 the will precedes the settlement. Thus in a well-known ademption, 
 case it has been said : — " The rule against double portions is 
 but a rule of presumption, and there is much less difficulty 
 in supposing that it was not intended to prevail where the 
 person to whose dispositions it is to be applied had not the 
 power to enforce it without the consent of others, than in 
 a case where the whole was under his absolute control. 
 When the will precedes the settlement, it is only necessary 
 to read the settlement as if the person making the provision 
 had said, ' I mean this to be in lieu of what I have given by 
 my will.' But if the settlement precedes the will, the testator 
 must be understood as saying, ' I give this in lieu of what 
 I am already bound to give, if those to whom I am so 
 bound will accept it.' It requires much less to rebut the 
 latter presumption than the former " {x). 
 
 [x) Per Lord Cran worth, in Chichester v. Coventry, 2 L. R. H. L. 71. 
 
 G G 2
 
 452 
 
 SATISFACTION. 
 
 Principle 
 resemblea 
 ademp- 
 tion, 
 
 rather 
 than sati'!' 
 faction of 
 debts. 
 
 Partial 
 satisfac- 
 tion. 
 
 The.se expressions indicate the principal difference 
 between these cases of the satisfaction of a portion by a 
 legacy, and the ademption of a legacy by a portion. Where 
 the settlement comes first, the persons entitled under it 
 are purchaser-s, and no presumed intention of the testator 
 can deprive them of their rights thus acquired. At least 
 they have a right to elect between the benefit which by 
 the settlement is already theirs, and that conferred by the 
 will. If the beneficiary elects to take under the will, then, 
 unless something rebuts the presumption against double 
 portions, the settlement is superseded, and is not to be 
 performed at all. If he elects to claim his rights under 
 the settlement, then, in the same circumstances, he must 
 to that extent give up his rights under the will to com- 
 pensate those whom his election disappoints {y). 
 
 It might, perhaps, be supposed that the recipient of a 
 portion under a settlement being a purchaser, this species 
 of satisfaction would be more analogous to the satisfaction 
 of a debt by a legacy than to the ademption of a legacy 
 by a portion. This, however, is not the case. For though 
 a portion is in its legal aspect a debt, equity still regards 
 it as a benefit conferred ; and thus it falls within the pre- 
 sumption against double portions, which has of course no 
 application in the case of an ordinary debt. The con- 
 sequence is that the leaning of equity is strongly in favour 
 of the satisfaction of a portion by a legacy; while, as we 
 shall presently observe, it is equally decided against the 
 satisfaction of a debt by a legacy. This distinction is in 
 itself abundantly sufficient to bring the cases we are now 
 considering nearer to the doctrine of ademption than to 
 that of satisfaction, as applied to ordinary debts. 
 
 A provision made by a will may satisfy one part of a 
 covenant without satisfying the whole. Thus if the cove- 
 nant gives a life interest to a daughter, with remainder to 
 children, a legacy to the daughter may satisfy her life 
 
 (y) Chichester v. CoveiUry, 2 L. R. 
 H. L. 71 ; M'Caror/Jiei- v. WMeldon, 
 
 3 Eq. 236.
 
 PORTIONS SATISFIED BY LEGACIES. 453 
 
 interest, but cannot satisfy the claim of the children (z). 
 And similarly, there may be a satisfaction of the children's 
 portion, not touching that of the parent (a). 
 
 Where a settlement contained a declaration that an Gift by 
 advancement by the parent in his lifetime should be con- Jquivrient 
 sidered as satisfaction of a portion covenanted to be to advance- 
 bestowed, a legacy given by will was cunsidered not to be lifetime. 
 equivalent to an advancement in the lifetime so as to 
 come within the declaration ; and there was held to be 
 no satisfaction (6). 
 
 Save as here excepted, it may be generally understood 
 that the limitations and conditions of the principle above 
 stated as applicable to ademption, are applicable also in 
 the case of satisfaction of a portion by a legacy (c). 
 
 There has been a great deal of learned argument touch- Rules as 
 ing the admissibility of extrinsic evidence (that is, evidence gj^ evi""^' 
 of facts not contained in the instruments themselves) in dence. 
 order to decide for or against the application of the doc- 
 trine of satisfaction ; but the results of the cases are 
 reducible to a few simple principles. 
 
 (1.) Parol evidence of extrinsic circumstances is not l. Not 
 admitted to alter, add to, or vary a written instrument, or l^ ^^^^ 
 to prove with what intention it was executed. In Hall v. written 
 Hill (d) the question was whether a portion had been ments. 
 satisfied by a legacy. It was clear that in the absence of 
 extrinsic evidence of the testator's intention when he made 
 his will there would be no satisfaction. Evidence was 
 tendered which clearly showed that the testator in fact 
 intended the legacy to satisfy the portion. The evidence 
 was rejected on the ground that it had nothing to do 
 with the debt, but applied to the will only, and, in fact, 
 amounted to the insertion in the will of a declaration which 
 was not there. 
 
 (z) BetheU v. Abraham, 3 Ch. D. (c) Bellasis v. Utlnmtt, 1 Atk. 
 
 590. 427 ; Lcthbridgc v. Thurlow, 15 
 
 (a) Chichester v. Coventry, 2 L. R. Beav. 334 ; Sparkes v. Cator, 3 Ves. 
 H. L. 71, 92 ; Mayd v. Field, 3 Ch. 530. 
 
 D. 587. (d) 1 D. & War. 94. 
 
 (b) Cooper v. C, 8 Ch. 813.
 
 454 SATISFACTION. 
 
 2. Ad- (2.) But where tl 10 laAV presumes a certain intention from 
 rebut pre- Collateral circumstances, such as a certain relationship 
 siimption bg^Yveen the parties, then extrinsic evidence is admissible 
 
 to rebut this presumption. It was said in Kirk v. 
 Eddoiues (e), that where " the law raises a presumption 
 that the second instrument was an ademption of the gift 
 by the instrument of earlier date, evidence may be gone 
 into to show that such presumption is not in accordance 
 with the intention of the author of the gift " (/). 
 
 3. When (3.) Where evidence is admissible to rebut such pre- 
 mitted sumption, counter-evidence is admissible (g). 
 
 counter- jj^ Kirk V. Eddoiues (h) the question was whether a 
 
 admissible, legacy was 2?''0 tanto adeemed by a subsequent gift of a 
 promissory note made without any writing. Evidence was 
 tendered which related to this gift, not to the written 
 instrument; and it was held that evidence of such a 
 na,ture being admissible to rebut the presumption of 
 law, counter-evidence was admissible in support of the 
 presumption (i). 
 
 3. Repetition of legacies. 
 Repetition In many respects similar to the ademption of legacies 
 ° 'by portions, and the satisfaction of portions by legacies, 
 are the cases which arise when two legacies are given by 
 the same will, or by a will and codicil, and it is doubtful 
 whether the second legacy is intended to be additional to 
 the first, or to be merely a repetition. 
 
 The case most usually referred to on this subject is 
 
 HOOLEY V. HATTON 
 
 [1 Bro. C. C. 390, n. ; 2 W. & T. L. C. 321]. 
 
 In this case Lady Finch gave to Lydia Hooley, the 
 plaintiff, £500 by her will. She made a codicil in these 
 words : " I add this codicil to my will : I give Lydia Hooley 
 £1000." The plaintiff filed a bill claiming these legacies, 
 
 (e) 3 Ha. 509. (/,) Supra. 
 
 if) See, also, Debeze v. Mann, (/) See Palmer v. Neicell, 20 Be&v. 
 
 2 Bro. C. C. 165, 519. 32, 39. 
 
 {g) Ibkl
 
 REPETITION OF LEGACIES. 455 
 
 and the question was whether she was entitled to them 
 both, or only to the £1000. There being no internal 
 evidence touching the question, it was decided on the 
 general rule of law that the legacies were cumulative, and 
 the plaintiff was declared entitled to them both. 
 
 The judgment of Aston, J., in this case classified double Classifica- 
 legacies under four heads: (1) where the same specific j^oo^pw y, 
 thing is given twice ; (2) where the like quantity is given J^a-tto^. 
 twice ; (3) where a greater sum is given first, and a less 
 sum afterwards ; (4) where a smaller sum is given first, 
 and a greater sum afterwards. 
 
 The first case presents no difficulty, since where the Specific 
 same specific thing or corpus is twice expressed to be ^^^^' 
 given, whether in the same or in different instruments, it 
 must clearly be regarded as a repetition (h). 
 
 The remaining three classes may be most conveniently Legacies 
 considered together, distinguishing, however, those cases in quantity. 
 which the two gifts are contained in the same instrument 
 from those in which they are given by two instruments. 
 
 (1.) Where two pecuniary legacies are given by the same i- In same 
 
 instru- 
 
 mstrument. ment. 
 
 The general rule is that when two legacies of the same If equal, 
 amount are given by the same instrument there will be 
 considered to be a repetition, and one only will be good {I). 
 And the same rule applies to annuities {m). 
 
 But where the two legacies are of unequal amount, Ifnnequal, 
 
 111 ^^^ ^°- 
 whether the greater precedes the less, or the less the 
 
 greater, they are priiiid facie cumulative (n). 
 
 (2.) Where two pecuniary legacies are given by different 
 instruments. 
 
 The rules regulating these cases cannot be so simj^ly In dififer- 
 
 , 1 ent instru- 
 
 Statecl. ments. 
 
 Prima facie, if the legacies are given simpliciter, no Primd 
 
 (^•) Z>. of St. Albans v. Beau- (m) Holford v. Wood, 4 Ves. 76. 
 
 derh, 2 Atk. 636 ; Suisse v. Lowtlier, (n) Windham v. W., Rep. t. Fincli, 
 
 2 Ha. 432. 267 ; Hartley v. Ostler, 22 Beav. 
 
 {I) Garth v. Meyrick, 1 Bro. C. C. 449. 
 30.
 
 4.3G 
 
 SATISFACTION. 
 
 fni-ic cumu- 
 lativt'. 
 
 If equal 
 anil on 
 same 
 motive, 
 repetition. 
 
 Not other- 
 ^\'ise. 
 
 Intrinsic 
 evidence. 
 
 motive for tlie gift being expressed, they are regarded as 
 cumulative ; and it is immaterial whether they are of 
 equal or unequal amount (o). A fortiori they will be 
 cumulative when there is any difference in their nature or 
 time of payment {p), or they are given upon or for different 
 trusts or purposes {q). 
 
 If, however, the same motive is expressed for both gifts, 
 and the same sum is given, then, though the gifts are con- 
 tained in two instruments, there will be deemed to be a 
 re])etition, and only one will be payable (r). 
 
 But if the same sums are given and different motives are 
 expressed (s), or if the same motive is expressed and 
 different sums are given (t), then the two gifts will be 
 considered cumulative. 
 
 (3.) Such are the general rules, but they are subject to 
 modification according to the evidence which may be forth- 
 coming as to the testator's intention. 
 
 As to intrinsic evidence there is no difficulty ; it is always 
 available to explain the intention. Thus the fact that the 
 second instrument expressly refers to the first, or seems to 
 be merely a copy of it, may, even where the sums given are 
 unequal, lead to the conclusion that the second was 
 intended to substitute, and not to be added to, the first (u). 
 And similarly, where two precisely similar codicils were 
 executed at the same time, it was considered that the 
 intention was to execute them in duplicate, and not to give 
 double legacies {x). And the same conclusion was 
 reached where two precisely similar instruments were 
 executed, though at different times {y). 
 
 (o) Roch V. Callen, 6 Ha. 531 ; 
 Rvssdl V. JJkkson, 4 H. L. 293 ; 
 Wilson V. O'Leary, 12 Eq. 525 ; 7 
 Ch. 448. 
 
 (p) Ilodgcs V. Peacocl; 3 Ves. 
 735 ; Masters v. 1/., 1 P. Wms. 
 421. 
 
 (q) Saurey v. Rumney, 5 De G. & 
 S. 698 ; Spire v. Smith, 1 Beav. 
 419. 
 
 (?•) Hin-st V. Beach, 5 Madd. 351, 
 
 358 ; Roch v. Callen, sup. 
 
 (s) Ridges v. Morrison, 1 Bro. C. 
 
 C. 388. 
 
 (i) Hurst V. Beach, sup. 
 
 (u) Martin v. Drinkwater, 2 Beav. 
 215; Coote v. Boyd, 2 Bro. C. C. 
 521. 
 
 [x) Whyte V. ir., 17 Eq. 50. 
 
 (y) Hubbard v. Alexander, 3 Ch. 
 
 D. 738.
 
 REPETITION OF LEGACIES. 457 
 
 The rules as to extrinsic evidence are similar to those Extrinsic 
 
 . ,. evideiice. 
 above stated as ordinarily applicable in a case of satisfac- 
 tion or ademption. Where the Court raises the presump- 
 tion against double legacies {e.g., where two equal legacies 
 are given by one instrument, or in different instruments 
 with the same motive expressed), then such evidence is 
 admissible to show that the testator intended both to be 
 paid. 
 
 But where the Court does not raise this presumption 
 {e.g., where legacies of different amounts are given by the 
 same will, or legacies of the same amount siinpliciter by 
 different instruments), then extrinsic evidence is not ad- 
 missible to show that the testator intended only the latter 
 to be paid (z). 
 
 In short, extrinsic evidence is admissible in favour of, but 
 not against, a legatee claiming the legacies as cumula- 
 tive. 
 
 As a general rule, where one legacy is given merely in Substi- 
 substitution for another, it will, m the absence of any it.oacy 
 expression of a contrary intention on the part of the testa- subject to 
 
 1T11 • • ^ o ^ • ^ Condition 
 
 tor, be liable to the same incidents as the legacy lor which of first. 
 it is substituted (a) ; but this is, of course, not so where 
 the second legacy is a distinct and substantive bequest (&). 
 An additional legacy, though not so expressed, will in 
 general be held subject to the same incidents and condi- 
 tions as the first legacy. Thus if a legacy be given by 
 will to a married woman to her separate use, an additional 
 legacy given by the codicil will also be lield for her separate 
 use (c). In no case, however, has it been held that the 
 latter gift is to go to the parties entitled under the subse- 
 c[ueiit limitations of the former gift (c?). 
 
 (2) Hurst V. Beach, stq). ; Guy v. 183. 
 
 Sharp, 1 My. & K. 589. (c) Day v Cruft, 4 Beav. 561. 
 
 {a) Cooper v. Lay, 3 Mer. 154. {d) Mann v. Fuller, Kay, 624. 
 (h) Chatteris v. Youn(j, 2 Russ.
 
 458 
 
 SATISFACTION. 
 
 Satisfac- 
 tion de- 
 pends on 
 presumed 
 intention. 
 
 Slight 
 circum- 
 stances 
 rebut the 
 presump- 
 tion. 
 
 TI. Where the Claim alleged to he satisfied is of a 
 
 Legal Nature. 
 I . Satisfaction of debts by legacies. 
 The leading authoiity on this branch of the subject is 
 
 TALBOT V, THE DUKE OF SHREWSBURY 
 
 [Free. Ch. 394 ; 2 W. & T. L. C. 352], 
 
 where the principle is laid down that if a debtor, without 
 taking notice of the debt, bequeaths a sum as great as, or 
 greater than the debt, to his creditor, this is to be deemed 
 a satisfaction of the debt ; but that a legacy of less amount 
 than the debt is not regarded as a satisfaction p/'O tanto, 
 nor will a contingent legacy ever operate as a satisfaction. 
 
 These cases rest, as do all cases of satisfaction, on the 
 presumed intention of the donor, and they illustrate the 
 maxim. Debitor non jyi'&suTnitur donare. But the reason- 
 ing upon which the principle here rests has been often 
 pronounced to be artificial and unsatisfactory, and the in- 
 clination of the Court is decidedly against its application, 
 so that slight circumstances will be laid hold of to rebut 
 the presumption. 
 
 That this is so is well shown by 
 
 CHANCEY S CASE 
 
 [1 P. Wms. 408 ; 2 W. & T. L. C. 353], 
 
 in which a testator being indebted to his servant for wages, 
 had given her a bond for £100 as due on that account, 
 and afterwards by his will gave her £500 for her long and 
 faithful services, and directed that all his debts and 
 legacies should be paid. This last direction was considered 
 sufficient to rebut the presumption of satisfaction, and the 
 servant was held entitled to be paid both the bond and 
 the legacy in full. 
 
 (1.) An examination of the cases will show that the prin- 
 ciple of satisfaction as applied to debts is subject to many 
 limitations. In the following cases the presumption of
 
 SATISFACTION OF DEBTS. 459 
 
 satisfaction has been held to be lebuttetl by the nature of Presump- 
 tion re- 
 the legacy : — butted by 
 
 (i.) Where the legacy is of less amount than the debt, of^^^e*"^^ 
 
 In such cases there is no satisfaction, even pro tanto (e). legacy. 
 
 (ii.) Where the legacy is given upon a contingency (/). Where 
 
 (iii.) Where the legacy is of an uncertain or fluctuating jelf t^an 
 
 amount ; such as a gift of the whole or part of the testa- debt, 
 
 , . , oi 1 T -11, , , • p o^ legacy is 
 
 tors residue, buch a legacy will not operate as satisiac- contingent 
 tion, even though in the event it may happen to equal or °^' ^^V 
 exceed the amount of the debt (g). such as 
 
 (iv.) Where the time fixed for payment of the legacy is ^^'^^'^ "®' 
 
 T«. p 1 1 . , 1 1 n ■ 1 1 Where the 
 
 ditterent irom that at which the debt is due, so as to be time of 
 not equally advantageous to the debtor, there will be no ^^^g"*^ 
 satisfaction (h) : in this case the debt being due at the 
 death, the legacy was directed to be paid one month after 
 the death. Where the legacy has been payable before the 
 debt has become due, it has been held to operate as satis- 
 faction (i). 
 
 (v.) There will be no satisfaction where the testamentary ^j" ^^^ 
 gift differs from the debt in character. Thus a gift of land of the 
 will not satisfy a pecuniary debt (/;;) ; a legacy will not ^^^^ differs, 
 satisfy an annuity (l) ; nor will an absolute gift satisfy a 
 debt held on trust for the donee for life with remainder to 
 his children {in). 
 
 (2.) Sometimes the presumption of satisfaction is re- Presump- 
 butted by the nature of the debt : Thus :— buttedb 
 
 (i.) A contingent or uncertain debt, such as a debt th« nature 
 upon an open account, cannot be satisfied by a legacy (n). debt. 
 But the mere fact that a debt is under certain circum- Where 
 stances liable to be varied in amount will not always contim>-ent 
 prevent the j)resumption of satisfaction. Thus there was ^^ "i^; 
 held to be satisfaction where a sum of money had been 
 
 (c) Talbot V. Shreioshiiry, sup. {i) Wathen v. Sinith, 4 Mad. 325. 
 
 (/) Ibid. ; Crompton v. Sale, 2 P. (^•) Eastivood v. Vinke, 2 P. Wms. 
 
 Wms. 553. 614. 
 
 (cj) Bevese v. Pontet, 1 Cox, 188 ; (I) Cole v. Willard, 25 Beav. 568. 
 
 Thynne v. E. of Glengall, 2 H. L. (»i) Fairer v. Park, 3 Ch. D. 309.' 
 
 154. (n) Rawlins v. Poxoell, 1 P. Wms. 
 
 (A) Clark v. Seiocll, 3 Atk. 96. 297.
 
 460 
 
 SATISFACTION. 
 
 or 18 
 
 contracted 
 sub- 
 sequently 
 to the will. 
 
 Presump- 
 tion re- 
 butted by 
 expressions 
 in the will. 
 Where a 
 particular 
 motive is 
 expressed, 
 or there is 
 a direction 
 for pay- 
 ment of 
 debts and 
 legacies. 
 
 Relation- 
 ship of 
 parent and 
 child im- 
 material. 
 
 Satisfac- 
 tion of 
 debt by 
 portion. 
 
 depo-sited with the testator, against which the creditor had 
 drawn on him from time to time (o). 
 
 (ii.) A debt contracted subsequently to the making of 
 the will cannot be satisfied by a legacy conferred by the 
 will, since in such a case no intention to satisfy the debt 
 can be reasonably presumed (p). 
 
 (o.) In other cases it is gathered from expressions in the 
 will that satisfaction was not intended. Thus : — 
 
 (i.) The fact that the testator has assigned a particular 
 motive for the gift has been considered to rebut the pre- 
 sumption (q). 
 
 (ii.) In Chanceys Case (r) an express direction for the 
 payment of debts and legacies was taken as an indication 
 that the testator intended both the debt and legacy to be 
 paid (s). A direction to pay debts alone has been con- 
 sidered not to have the same effect {t) ; though it is un- 
 doubtedly of great weight in that direction when taken 
 in connexion with other circumstances tending to rebut 
 the presumption {u). 
 
 The relationship of parent and child or husband and 
 wife does not, it seems, affect the principle regulating 
 these cases of satisfaction. Where there is an actual debt 
 due to the child, as distinguished from a portion, it will 
 only be satisfied by a legacy of equal or gTeater amount, 
 and, as in other cases, the presumption will be easily re- 
 butted {x). 
 
 2. Analogous to the above instances of satisfaction, and 
 subject to similar rules, is the case in which a father, being 
 indebted to a child, makes an advance to him in his life- 
 time. The portion so advanced will irriind facie effect a 
 satisfaction if it equals orexceeds the amount of the debt(3/). 
 
 (o) Edmunds v. Loiv, 3 K. & J. 
 318. 
 
 (p) Cranmef's Case, 2 Salk. 508. 
 
 (ry) Mathews V. M., 2 Ves. sr. 635 ; 
 Charlton v. West, 30 Beav. 124. 
 
 {r) Sup., p. 458. 
 
 (s) RichoA-deon v. Gi'eese, 3 Atk. 65. 
 
 {t) Ed/nmnds v. Low, sup. 
 
 (u) Roioe V. R., 2 De G. & S. 297 ; 
 Pinchin v. Simms, 30 Beav. 119. 
 
 (x) Tolson V. Collins, 4 Ves. 483 ; 
 Foiole7- V. P., 3 P. Wms. 353 ; At- 
 kimon v. Littleivood, 18 Eq. 595. 
 
 (y) Wood V. Briant, 2 Atk. 521 ; 
 Plunkett V. Leiois, 3 Ha. 316.
 
 PERFORMANCE. 461 
 
 It is a common and well-known principle that extrinsic Q""^l'^ 
 
 ^ ^ . whether 
 
 evidence is admissible to rebut a presumption of law (z), extrinsic 
 
 and on this principle extrinsic evidence should be ad- adm^^s*ible. 
 missible when the presumption arises that a debt is satis- 
 fied by a legacy to rebut this presumption (a). But such 
 evidence has nevertheless been sometimes refused (6). 
 
 Performance. 
 
 The equitable doctrine of Performance is similar to, and 
 yet to be carefully distinguished from, that of satisfaction, 
 as applied to the cases we have been considering. 
 
 Satisfaction, as we have seen, wholly rests upon an Distinc- 
 implied intention of the testator ; and several rules of between 
 presumption have been adopted Avhich do not apply to cases satisfac- 
 
 mi • Ml ^ ^ 1 • o 1 -c t ion and 
 
 ot performance. The presumption will not hold it the gilt perform- 
 is less beneficial in any way than the debt. There is no ^^''®- 
 such thing as satisfaction 'pvo tanto. 
 
 The doctrine of performance rather arises from a con- Perform- 
 struction which equity, in its regard for natural justice, puts on the " 
 upon certain circumstances, than from the implied intention ground of 
 
 . iiatural 
 
 of the part}^ It is not therefore subject to any of those rules justice, 
 which originate in the design of correctly ascertaining a 
 testator's intention. And it conspicuously differs from 
 satisfaction as applied to debts, in that performance is 
 commonly deemed to have been effected pro tanto. 
 
 1. The t}^ical case of performance is where a person Perfoi-m- 
 covenants to do a certain act, and this covenant is considered ^^ imputed 
 as performed by some subsecpient act which wholly or from the 
 approximately effects the same purpose, though it does coven- 
 not expressly refer or precisely conform to the covenant. ^^*^'"" 
 
 {z) Kirk V. Eddowes, 3 Ha. 509 ; lace v. Pomfret, 11 Ves. 542. 
 Hall V. IJill, 1 D. & W. 94. (b) Fou-la- v. F., sup. ; Hall v. Hill 
 
 (rt) Plviikctt V. Lewis, sirp. ; Wal- (sup.)
 
 4(i2 PERFORMANCE. 
 
 One of the most familiar cases on this point is 
 
 WILCOCKS V. WILCOCKS 
 
 [2 Yern. 558 ; 2 W. & T. L. C. 389]. 
 
 There a person covenanted on his maniage to purchase 
 lands of the value of £200 a year, and to settle them for 
 the jointure of his wife and to tlie first and other sons of 
 the marriage in tail. He purchased lands of that value, 
 but made no settlement, so that on his death the lands 
 descended to his eldest son. The eldest son nevertheless 
 filed a bill for a specific performance of the covenant ; but 
 it was held that the lands descended should be deemed a 
 performance of the covenant. 
 
 Another similar case which further illustrates the doc- 
 trine is 
 
 LECHMERE v. EARL OF CARLISLE 
 
 [3 P. Wms. 227 ; Ca. t. Talb. 88]. 
 
 Here Lord Lechmere on his marriage covenanted to lay 
 out within one year of the marriage £6000 (his wife's 
 portion) and £24,000, amounting in all to £30,000, in the 
 purchase of freehold lands in possession in the south part 
 of Great Britain, with the consent of the Earl of Carlisle 
 and Lord Morpeth, to be settled on Lord Lechmere for life, 
 remainder for so much as would amount to £800 a year to 
 Lady Lechmere for her jointure, remainder to first and 
 other sons in tail male, remainder to Lord Lechmere his 
 heirs and assigns for ever. Lord Lechmere was seised of 
 some lands in fee at the time of his marriage, and after his 
 marriage purchased some estates in fee of about £500 a 
 year, some estates for lives, and some reversionary estates in 
 fee expectant on lives ; and he contracted for the purchase of 
 some estates in fee in possession. These purchases were 
 not effected with the consent of the trustees, there was no 
 settlement made of any of the lands, and shortly afterwards 
 Lord Lechmere died intestate. Thereupon a bill was filed 
 by his heir for a sj)ecific performance of the covenant, and
 
 PERFORMANCE. 463 
 
 to have the £30,000 laid out in accordance therewith out 
 of the personal estate. It was held by Lord Talbot, on 
 appeal, reversing the decision of Sir J. Jekyll, M. R, that 
 the freehold lands purchased in fee simple in possession 
 after the covenant ought to be considered as purchased in 
 part performance of the covenant. The heir was therefore 
 only entitled to a decree for the laying out of so much 
 money as together with the sum already so laid out would 
 amount to £30,000. 
 
 It will be observed that the lands possessed by the Conclu- 
 covenantor before the covenant, and lands purchased ^^^ ^.^^^gg 
 afterwards but of a different nature from what was cove- 
 nanted to be purchased, were not included in the perform- 
 ance ; and further, that the consent of the trustees was 
 deemed not to be an essential. 
 
 The doctrine has also been applied to a case in which 
 the covenant was to pay money to trustees to be laid 
 out by them in a purchase of land, and the covenantor 
 himself purchased the land, and died intestate without 
 having effected a settlement (c). 
 
 The same principle is applicable where the obliga- 
 tion arises from an Act of Parliament instead of from a 
 covenant (d). 
 
 It must be observed that a covenant to purchase lands Covenant 
 amounts to no more than a specialty debt — it does not doern'ot^^^ 
 create a specific lien upon lands purchased ; and conse- create a 
 quently notice of such a covenant will not affect a pur- 
 chaser or mortgagee of the lands (e). The equity of 
 redemption was, however, held liable to the covenant in a 
 case in which the mortgagee had no notice (/). 
 
 Where trustees having trust money in their hands are Purchase 
 under an obligation to lay it out in lands, any purchase by standTor^ 
 them will more readily than in other cases be deemed a higher 
 
 ground. 
 
 (c) Sowden v. S., 1 Bro. C. C. 582. Mornington v. Kcene, 2 De G. & J. 
 
 (d) Tuhls V. Broadwood, 2 R. & M. 292. 
 
 487. (/) Exp. Poole, 11 Jur. 1005; 1 Do 
 
 (e) Deacon v. Smith, 3 Atk. 323 ; G. 581.
 
 464 
 
 PERFORMANCE. 
 
 performance of their obligation {y) ; though such cases 
 
 usually fall under the still stronger rule that a cestui que 
 
 tmist is entitled to follow trust money, however it may have 
 
 been converted (h). 
 
 Perform- 2. Another illustration of the doctrine of performance is 
 
 rSt"rom where a person covenants to do an act and the covenant is 
 
 the opera- [n effect wholly or partially performed by the operation 
 
 tion of law. 
 
 01 law. 
 
 On this the leading authority is 
 
 BLANDY V. WIDMORE 
 
 [1 P. Wins. 323 ; 2 W. & T. L. C. 39]. 
 
 There a man covenanted, previous to his maiTiage, to 
 leave to his Avife £620. He married, and died intestate, 
 his wife's share under the intestacy being more than £620. 
 The covenant was hereby deemed to be performed, so that 
 the widow could not claim her share under the intestacy 
 and £620 over and above as a debt under the covenant. 
 
 In this case the covenant was wholly satisfied, but it is 
 equally clear that if the distributive share had been less 
 than the sum covenanted to be paid it would be considered 
 a performance p9'o tanto (?'). The same principle has, 
 moreover, been applied where the covenant has been that 
 the executors should pay a sum of money, or that the 
 money should be paid to trustees for the wife (k). 
 
 There are, however, three classes of cases which must be 
 carefully distinguished from those which fall under this 
 principle. 
 
 (1.) Where the covenantor has made a will, and thereby 
 conferred a gift either by way of general legacy or as a 
 residue, such a gift will not generally be deemed a per- 
 formance of a covenant to leave a certain sum (I). 
 
 (2.) Where the covenant is not to pay a gross sum, but 
 to give a life annuity, or the interest of a sum of money for 
 
 A general 
 legacy or 
 gift of 
 residue 
 is not 
 generally 
 perform- 
 ance. 
 Share in 
 
 (g) Mathias v. 31., 3 Sm. & G. 552. 
 {h) Taylor v. Plume); 3 M. & S. 
 562 ; Lench v. L., 10 Ves. 511. 
 (i) Garthslicn-e v. Chalk, 10 Ves, 
 
 14, 16. 
 
 {k) Lee V. D'Arandu, 3 Atk. 419. 
 
 (?) Hai/tie.^ V. 3Iico, 1 Bro. C. C. 
 129 ; Devese v. Poiitet, 1 Cox, 188,
 
 PERFOEMA^■CE. 465 
 
 life, such a covenant will not be performed by the devolu- intestacy 
 
 . , . , ncit per- 
 
 tion of a share under an intestacy {tti). fonnance 
 
 (3.) Where the covenant is to pay a sum in the covenan- °^^).' f^'j. 
 tor's lifetime, and there is a breach of the covenant before annuity, 
 the death, then the devolution of a share in intestacy will P^rform- 
 
 ' -^ ance does 
 
 not amount to a performance (n). Here the covenant not <>i)ply 
 having been to pay the settlor's wife a sum of money two <^]",e j'^^* 
 years after marriage, and not having been complied with, testator's 
 there was an actual debt due when the intestate died, 
 between which and her claim as widow in the intestacy, 
 the covenantee could not be put to her election. 
 
 (m) Couch V. Stratton, 4 Ves. 391. 1, cited ; 3 Atk. 420. 
 (n) Oliver v. BricMand, 1 Ves. sr. 
 
 H H
 
 PART II. 
 
 WHERE THE JURISDICTION RESTS ON THE DISTINC- 
 TIVE PROCEDURE OF EQUITY. 
 
 INTRODUCTION. 
 
 It has been already pointed out, and cannot be too 
 strongly urged, that it is impossible to draw any strictly 
 defined line between those matters in which the jurisdic- 
 tion of equity has arisen from the distinctive character of 
 its principles, and those in which it is to be ascribed to the 
 superiority or peculiarity of its procedure. 
 
 In many of the subjects which have been treated in the 
 preceding part, it has been necessary to anticipate much 
 that would appropriately present itself now for considera- 
 tion, but which could not without serious inconvenience 
 have been severed from the connexion in which it there 
 stands. For instance, the subject of mortgages could not 
 be examined without investigation of the method of 
 accounting between mortgagor and mortgagee : no more 
 was it possible to take a comprehensive view of the doc- 
 trine of trusts without trespassing on many questions 
 which most usually present themselves in the course of the 
 administration of assets. 
 
 On the other hand, in those matters in which the juris- 
 diction of equity is essentially administrative, or is other- 
 wise due to its peculiar procedure, it of course recognises 
 and applies as occasion requires all the principles already 
 expounded. Thus actions arising out of partnerships 
 
 II H 2
 
 408 INTRODUCTION. 
 
 continiially raise questions of trust and of fraud ; and as 
 has been observed, the jurisdiction to relieve against the 
 consequences of mistake is nowhere more frequently con- 
 cerned than in actions for specific performance. 
 
 As it was necessary as an introduction to the first part 
 of the work to inquire generally what the substantive prin- 
 ciples were which distinguished equity from law, so it 
 behoves us now to make a corresponding inquiry as to the 
 distinctive procedure of Courts of equity. This must 
 necessarily be here treated in a very general way, for other- 
 wise we should be involved in an exposition of Chancery 
 practice, which is beyond the province of this work. 
 Account. Perhaps the most extensively useful of the features 
 of equitable procedure is the facility which it affords 
 Procedure for the taking and adjusting of accounts. In actions at 
 law. law, it was under the old practice necessary that the 
 
 plaintiff should estimate his claim in a definite sum of 
 money. Supposing the claim to be good in law, it was for 
 the jury to determine on the facts whether the claim was 
 reasonable or excessive, and to give their verdict accord- 
 ingly. Of course, it was open to the defendant to adduce 
 evidence generally and particularly to show that the 
 plaintiff's claim ought to be reduced ; and simple cases of 
 account might well be considered and adjusted by the 
 Inapplic- jury. But it is evident that many cases arise in which the 
 i^^^ '^ determination of what is justly due to a plaintiff neces- 
 accounts. garily involves long and difficult inquiries — for instance, it 
 may be necessary to review a series of transactions extend- 
 ing over many years. For such an investigation a jury is 
 clearly incompetent. 
 Action of This difficulty was very long ago recognised, and a 
 faw'*^"^* ^* remedy for it attempted apart from the assistance of equity. 
 Indeed, one of the most ancient actions at law was the 
 Restric- action of account. But the inadequacy of the remedy 
 
 tions as to thus afforded is sufficiently shown by mentioning only a few 
 parties. „, . it. d^ 
 
 ot the conditions attached to it. Thus the action of account 
 
 originally lay only when there was either privity in deed
 
 INTRODUCTION. 469 
 
 by the consent of the party, as against a bailiff or receiver 
 appointeil by the party ; or a privity in law, as against a 
 guardian in socage. By the law merchant it was so far 
 extended that a merchant might have an account against 
 another, chargmg him as a receiver. Beyond these limits 
 the action did not apply, until by successive statutes it was 
 further extended to the executors of merchants, to admi- 
 nistrators, aad finally, so as to lie against executors and 
 administrators of guardians, bailiffs, and receivers (a). 
 
 Nor were these restrictions as to the parties the only Defects as 
 disadvantages. Even when the action was sustainable, the cedure 
 procedure under it was cumbrous in the extreme. The 
 auditors appointed to take the account could not until 
 4< &L 5 Anne, c. 16, examine the parties before them on 
 oath. Whenever a disputed item was in question the 
 parties might join issue thereon or demur and bring their 
 dispute before the Court, and thus the inquiry might be 
 almost interminably protracted. Moreover, no equitable 
 claims, such as those arising from trusts, liens, frauds, &c., 
 were recognised ; so that after all the discussion at law, a 
 suit in equity might still have been requisite to determine 
 the full rights of the case (6). 
 
 It is not surprising that the legal action of account Displaced 
 should under these circumstances have fallen into desue- J^-l^, i 
 
 equitable 
 
 tude, and have been displaced by the remedy in equity to remedy, 
 which its imperfections gave birth. We shall presently 
 consider in greater detail some of the leading principles by 
 which Courts of equity have been guided in the taking of 
 accounts. It suffices now to illu.strate the superiority of Supe- 
 the equitable over the legal remedy, by stating that the jUyg. 
 master who acted as auditor in equity had abundant power trated. 
 to examine the parties on oath, to make inquiries from 
 all proper parties by testimony on oath, and to require the 
 production of all necessary documents ; and that his deci- 
 sion was open to be re-examined by the Court whether in 
 point of fact or of law, by a simple and expeditious process. 
 
 (a) 4 & 5 Anne, c. 16 ; Story, 415. (h) Story, 448-9.
 
 47<> iNii;<H)i (TioX. 
 
 Extunt of '['\^^J l,^.oal action of aceomit having become obsolete, the 
 
 tla- juris- ..... „ . . ,, ,. i- .• 
 
 diction in junsiuction 01 e([iuty ni all matters oi complication was 
 eiiuity. iully established, anil, as usual, being once established, it 
 was ill no way interfered with by the fact that new powers 
 were subsequently conferred on Courts of law ; for instance, 
 the power to compel a reference to arbitration under the 
 Common Law Procedure Act, 1854 (c). The general test 
 as to whether Courts of equity had jurisdiction in any 
 particular case seems to have been the question whether 
 or not the account could be competently examined upon a 
 trial at nisi jirius (d). 
 Fitluciary j^j soiiic cases it was necessary for the parties to resort 
 
 relations _ ... 
 
 give juris- to equity because of the existence of some fiduciary relation 
 ^^ ^'^^'' between them which prevented the application of a legal 
 remedy. Thus a principal desiring an account against his 
 agent could only obtain adequate relief in equity, since 
 equity alone could enforce the discovery necessary to 
 ascertain the facts of the case (<?) ; in short, wherever the 
 relation of trustee and cestui que trust exists the matter 
 naturally falls under the jurisdiction of equity (/). An 
 agent, however, could not sue in equity for an account 
 against his principal, since no confidence is reposed by the 
 agent, and the same ground of jurisdiction does not there- 
 fore exist (g). 
 Account In many cases, again, the remedy of account is incident 
 
 injunction, to and accompanies that of injunction — for instance, in 
 suits for the infringement of patents of copyright; and iu 
 respect of waste. These cases are more particularly 
 referred to under the head of Injunction. 
 
 Since the Judicature Acts, (piestions as to jurisdiction 
 can, of course, no longer arise, all actions being equally cog- 
 nizable in both the Common Law and Chancery Divisions. 
 But it remains a matter of propriety and convenience to 
 resort to equity in such cases, the machinery of the equity 
 
 (c) 17 & 18 Vict. 0. 12.0, s. 3. ((') Marl-enzie v. Johmton, 4 Mad. 
 
 (d) O'Connm- v. Spaight, 1 S. & L. :j7:i. 
 
 305; Taff Vale Co. v. Nixon, 1 H. (/) AW.Yrv..S'owfs,2My.&K.6ti4. 
 
 L. 111. (<j) Padicirk v. i'ytnnley, <> Ha. 627.
 
 INTRODUCTION. 471 
 
 Courts and Chambers being still conspicuous in their 
 superior ability to enter into complicated accounts. 
 
 It is obvious that the jurisdiction of equity in matters Extent of 
 of account brings a great variety of business within its diction 
 purview. This is a natural consequence of the fact that bounded on 
 
 ... . . , . account. 
 
 an almost infinite variety of transactions involve questions 
 
 of account ; and, in addition to this, it is a well-established 
 
 rule that when equity acquires jurisdiction on this ground, 
 
 it extends its authority to other matters naturally, if not 
 
 necessarily, attaching to such a jurisdiction. As incident 
 
 to accounts, therefore, Courts of equity take " cognizance 
 
 of the administration of personal assets, consequently of 
 
 debts, legacies, the distribution of the residue, and the 
 
 conduct of executors and administrators. As incident to 
 
 accounts, they also take the concurrent jurisdiction of 
 
 tithes, and all questions relating thereto ; of all dealings 
 
 in partnership, and many other mercantile transactions ; 
 
 and so of bailiffs, factors, and receivers " (h). 
 
 In dealing with the matters thus suggested, our course 
 will be first to examine the most conspicuous of the prin- 
 ciples by which equity is guided in the taking of accounts 
 generally. Then we shall inquire with more particularity 
 into the matters generally enumerated in the last para- 
 graph, whose place in equitable jurisprudence is especially 
 due to their involving matters of account. 
 
 Though we shall thus find that the heading of account 
 is answerable for the greater part of the business which 
 falls within the second division of our subject, there are 
 other peculiar remedies or features of procedure scarcely 
 less fertile, but which do not call for particular comment 
 in this place. 
 
 Somewhat analogous in principle to the taking of Partition, 
 accounts is the partition of lands, involving, as it does, 
 minute inquiries and valuations. And very similar to this Bound- 
 is the settlement of doubtful and confused boundaries. 
 
 (/i) IMackstone, Com. III. 437.
 
 472 INTRODUCTION. 
 
 Specific Anotlicr remedy of high importance, which has hxrgely 
 
 ance. Contributed to the excellence of equity, is that of Specific 
 
 Injiinc- Performance. In some respects analogous to this is the 
 remedy of Injunction. 
 
 The discussion of these remedies and the matters con- 
 nected therewith is before us as constituting the second 
 division of our subject.
 
 473 
 
 CHAPTEE I. 
 
 THE GENERAL PRINCIPLES OF ACCOUNT. 
 
 I. Appropi'lation of Payments. 
 Clayton's Case. 
 II. ^et-off. 
 
 1. At Law. 
 
 2. In Equity. 
 
 III. A'pportioninent. 
 
 IV. Cuntribution. 
 
 V. Defences to an Action for Account. 
 
 It has already been stated, aud is very natural, that in Legal and 
 taking an account, Courts of equity pay equal regard to the ckini^ 
 legal and equitable claims. Wherever any fraudulent deal- regarded, 
 ing has given rise to a constructive trust, or to an equitable ' 
 claim in any way, or by the dealings of the parties an 
 equitable lien has been created, or indeed any doctrine of 
 equity intervenes to modify the legal position of the 
 parties, full effect is given thereto, and the result of the 
 inquiry is therefore, when confirmed by the Court, final, 
 needing no supplemental proceedings to complete the 
 determination of the parties' rights. 
 
 I. Appropriation of Payments. 
 
 The accounts which come before Courts of equity are Appropria- 
 frequently of such a nature as to call for decision as to the payments, 
 appropriation of payments appearing on one side thereof, 
 to the debits appearing on the other. In other words, it
 
 •i74 GENERAL PlilNClPLES (JF ACCOUNT. 
 
 often becomes material to ascertain to what debt a parti- 
 cular payment made by a debtor is to be applied. This 
 question most commonly arises where there have been 
 running accounts between debtor and creditor, various 
 payments having been made and various credits given at 
 different times. 
 
 The leading authority on this point is 
 
 CLAYTON'S CASE 
 
 [1 Mer. 572, 585], 
 
 Rules as from wliich we learn that the following rules, which are 
 priation° ii^ainly derived from the Roman law, are applicable in 
 
 equity. 
 Debtor has ] . A debtor making a payment has a right to appropriate 
 
 first option. ., , ,. , n i ^ , i • ,.^^ 
 
 it to the discharge ot any debt due to his creditor. 
 
 The debtor may appropriate the payment by so stipulat- 
 ing in express terms (a), or his intention so to do may be 
 inferred from the circumstances of the transaction ; thus 
 where one of the debts owing was secured and another 
 unsecured, an intention first to discharge the secured debt 
 was presumed (h). 
 Compared In the Koman law this case would have come under 
 Roman another rule — viz., tliat in the absence of an express appro- 
 law, priation by either debtor or creditor, the law would appro- 
 priate the payment to the most burdensome debt. This 
 rule does not, however, appear to be recognised in English 
 law (c), and it therefore seemingly requires something more 
 than the mere fact that one of the debts is secured, to lead 
 the Court to appropriate a payment to its extinction in 
 priority to an unsecured debt of earlier date. In the case 
 quoted it appears that the payment was made out of the 
 proceeds of the security itself See also Att.-G. of Jamaica 
 V. Manderson (d), City Discount Co. v. McLean (e). 
 Debtor can This right of appropriation by the debtor is, however, 
 
 (a) Exj). Imhcrt, 1 De G. & J. (c) Mills v. Fowkes, 5 Bing. N. S. 
 
 1.52. 4.55, 461. 
 
 {')) Toimri V. Enqlii^h. 7 Beav. (d) 6 Moo. P. C. 
 
 10. (f) 9L. R. C. r. 692.
 
 ArrKOl'RlATlON OF PAYMENTS. 
 
 475 
 
 lost unless exercised at the time of payment. If he does only exer- 
 
 ;: ••11 ^^^^ "1^ 
 
 not then declare on what account the money is paid, he right at 
 cannot afterwards do so (f). p™meiit. 
 
 2. If at the time of payment there is no express or ^j^^ ^j.^^. 
 implied appropriation thereof by the debtor, then the tar then 
 creditor has a right to make the appropriation. option. 
 
 In Roman law this right of the creditor, like the corre- 
 sponding one of the debtor, was lost unless exercised at the 
 time of payment ((/). But in English Jaw this is not so ; ^^^f "'^• 
 and the creditor may, it seems, make the appropriation at any time 
 any time after payment and before action brought or ^^[?J® 
 account settled between him and his debtor (k). brought. 
 
 The creditor's right to make such appropriation is, how- May not 
 ever, subject to some limitations. He may not indirectly p^iate to 
 secure payment of an illegal debt by appropriating a ^^/^^^^^^ 
 general payment to its discharge (i). But a debt barred 
 by the Statute of Limitations is not illegal, the statute 
 being merely a bar to the remedy, not to the right : 
 and if, therefore, a general payment is made, without but may to 
 appropriation by the debtor, it may be appropriated by statute- 
 the creditor to the discharge of a statute-barred debt {k). barred. 
 It must, nevertheless, be observed that it will not have Effect of 
 the effect of reviving the debt (/) ; or, in other words, 
 though by the appropriation the creditor may secure pay- 
 ment of a portion of a statute-barred debt, he does not 
 by that means acquire a right of action for the remainder 
 of it. But if a debt is not barred, a general payment on 
 account appropriated towards its liquidation will take it 
 out of the operation of the statute ; that is to say, the 
 statutory period will again commence to run from the 
 time of such payment and appropriation (m). 
 
 3. In the absence of any appropriation by either debtor Appro- 
 
 (/) Wilkinsou v. Sterne, 9 Mod. 165. 
 
 427. 1^) Mills V. Fowkes, sup.; Xash v. 
 
 (g) Dig. 46, 3. Hodgson, 1 Jur. N. S. 946 ; 4 De 
 
 (h) Philpot V. Jones, 2 A. & D. 41, G. M. & G. 474. 
 
 44; Siinson v. Inyhnm, 2 B. & C. (/) Ibid. 
 
 65. (>n) Ibid. 
 
 (i) Wri(jJd V. /Ming, 3 B. & C.
 
 476 GENERAL PRINCIPLES OF ACCOUNT. 
 
 priation by or ci'oditur, all appropriation is made by presumption of 
 tkuronaw law, according to the order of the items of account, the 
 accoixiing ^^-gj^ [^^q-^ q^ i\^q debit side beino- the item discharged or 
 
 to priuntv. . • 1 / \ mi • 
 
 reduced by the first item on the credit side (n). ihis is 
 the express j)oint decided in Clayton's Case (o), and is 
 abundantly confirmed by subsequent authority (p). 
 Presump- This presumption may, however, be rebutted by evidence 
 
 tion may ~. . . ._,... 
 
 be re- 01 a diuerent intention (q) ; and thus, though the ii<ngnsh 
 butted. ^.^jg ^^Yls short of that of Roman law already mentioned, 
 there is a tendency in the same direction arising from the 
 disposition to impute an intention to a debtor to appro- 
 priate his payment to the most onerous debt. 
 Payments Where a debt bearing interest stands against a debtor, 
 priated to general payments made by him are first to be applied in 
 payment of interest, any balance beyond what is necessary 
 for that being then credited in reduction of the prin- 
 cipal (r). 
 Presump- We have seen that a creditor may appropriate a pay- 
 debts nieiif towards the liquidation of a statute-ban-ed debt. If, 
 
 interest 
 first. 
 
 «ome 
 
 barred. howover, there are several debts owing to him, some barred 
 ' and some not so, and he does not expressly appropriate a 
 payment made to him on account towards those that are 
 barred, the presumption of law is that the payment is to be 
 attributed to those not barred (s). In this respect, there- 
 fore, in the absence of an express appropriation, the law 
 appropriates the j)ayment to the best interest of the 
 debtor. This evidently operates as a modification of the 
 general rule that payments are appropriated by law to 
 debts in order of time. It scarcely needs to be remarked 
 b}^ way of caution that in a continuous and current account 
 the early debts, however old, are not statute-barred, being 
 kept alive from time to time by any payments which are 
 made within six years of their having been incurred. 
 
 {n) Coote, Mtges., p. 1133. (q) City Discount Co. v. McLean, 9 
 
 (o) 1 Mer. 585. L. R. C. P. 692. 
 
 ip) Fembet'ton v. Oakes, 4 Euss. (»•) Chase v. Box, Freem. 261. 
 
 154, 168; Bk.of Scoilandv. Christie, (s) Nash v. Hodgson. 6 De G. M. 
 
 8 CI. & F. 214. & G. 474.
 
 SET-OFF. 
 
 477 
 
 Questions of appropriation, perhaps, most frequently arise General 
 in cases where a firm has from time to time been changed, appropria- 
 and eventually fails. It is to such cases that the rule in tion- 
 Clayton's Case especially applies. If a creditor seeks to 
 fix a liability for the ultimate balance on a person who has 
 been a partner during the currency of the account, but who 
 is not so at the time of the failure, the account will be 
 taken on the presumption that the sums first paid in have 
 been first drawn out, or that the debts first incurred have 
 been first discharged. And no liability can be fixed on a 
 former partner if, on working out this principle, it appears 
 that all the debts owing when he ceased to be a partner 
 have been subsequently discharged. 
 
 II. Sei-off. 
 
 There has been a marked distinction between the prin- Set-off: 
 ciples of law and equity as to the set-off of debts one against 
 another. 
 
 1. Courts of law, indeed, always applied the principle of at law. 
 set-off to connected accounts of debit and credit, and 
 allowed only the balance of the account to be recovered {f). 
 But apart from legislation the principle was confined 
 within very narrow limits. The mere existence of cross- 
 demands between the same persons did not entitle one to 
 set-ofF the debt owing to him against that which he owed. 
 Unless they were substantially connected one with the 
 other, the respective creditors could only sue in indepen- 
 dent actions. For instance, if A. was indebted to B. in the 
 sum of £5000 on a bond, and B. subsequently borrowed 
 £4000 from A. also on a bond, payable at a different time 
 or under different conditions from that of A., there was no 
 legal set-off between them, and B. could have sued A. 
 and obtained and enforced judgment against him for the 
 whole £5000, even though it may have been certain that 
 B. would be unable to pay his debt when it became 
 payable. 
 
 {t) DuU V. SdJet, 4 Burr. 2133.
 
 •VyS GK.XKKAL PRINCIIM-KS OF ACCOUNT. 
 
 .Statutory Jt is uiinecessavy now to trace the steps by which the 
 
 inen'tr^ manifest imperfections of the law in this respect were from 
 
 time to time removed by statutory interference. It suffices 
 
 to say that the repugnance of its doctrines to natural equity 
 
 sufficed to establish an equitable jurisdiction in many 
 
 cases where set-off was reasonable, but was inadmissible at 
 
 law. 
 
 Distinc- 2. This jurisdiction was, however, subject to well-defined 
 
 set-off in limitations, and generally followed the law. The cases in 
 
 equity. which equity differed from the law may generall}'^ be 
 
 classed under one or other of three headings. 
 Where n\ Notwithstandino' that the debts in question arise 
 
 credit IS ^ '^. ^ . . l- 
 
 mutual. from independent transactions, yet equity allows a set-off 
 where, from the circumstances of the case, it appears that 
 the party incurring the second debt acted in reliance on 
 the former debt as a means of discharfrino; it. 
 
 This is sometimes expressed by saying that though the 
 debts are independent, the credit is mutual. It is illus- 
 trated by the case above put of the bonds given between 
 A. and B. In such a case the nature of the transaction 
 would lead to the presumption that A. lent his money 
 relying on the fact that on another account he was indebted 
 to B., so that if B. should become insolvent A.'s advance 
 should be esteemed a 2')'i'0 tanto payment of his liability. 
 Equity gives effect to this presumption, though, apart from 
 the statutes referred to, it was disregarded at law (u). 
 Similarly it was held at law under the statutes, that there 
 was a mutual credit wherever one party being indebted to 
 another entrusted him with goods, mutual credit being 
 defined as meaning mutual trust, which must be presumed 
 in such circumstances (v). 
 Where one (2.) Where there are cross-demands of such a nature 
 debts is that if both had been recoverable at law they would have 
 equitable, j^een subject to set-off, then if one of the demands is of 
 
 (u) Laneshnroiu)li v. Jonca, 1 P. (?-) Olive v. Smith, 5 Taunt. .56 ; 
 
 Wms. .326 ; Exp. Prcscntt, 1 Atk. Kn/ v. Flint. S ih. 21. 
 230.
 
 RET- OFF. 479 
 
 an equitable nature the principle of set-off is applicable 
 in equity. 
 
 This was the case where, prior to the Judicature Acts, a as formerly 
 legal debt was owing to a plaintiff by a defendant, and the ments'of 
 defendant was assignee of a legal debt due to a third person debts. 
 from the plaintiff' ; then if the debts were of such a nature 
 that they might have been set-off in law under the statutes, 
 they were subject to set-off in equity {lu). 
 
 It is evident that this class of cases is rendered com- 
 pletely obsolete by the Judicature Acts. 
 
 (3.) There are certain cases where on special equitable Where 
 grounds set-off is allowed in equity. special 
 
 Thus though in equity no more than at law is it permitted grounds. 
 to set-off debts accrued in different rights (for instance, a occurHiK' 
 joint debt against a separate debt, or vice versa; or a debt indiffermt 
 
 ^ r •T'Tii • 111 1- rights. 
 
 due irom a person individually against a tiebt due to nim 
 
 as executor of another), yet where a joint creditor has When 
 ^ •! r n 1 • ^ • i „ joint and 
 
 been guilty oi iraud in relation to the separate property oi separate 
 
 one of the debtors — for instance, has misapplied it, and '^^^^ •^®*' 
 deceived the latter — it has been held that in case of bank- 
 ruptcy, the separate debt arising by such misapplication 
 may be set-off against the joint debt (x). So also in cases Surety- 
 where one of the joint debtors has been only surety for the ^ '^" 
 other, he may set-off the debt due to his principal from tho 
 creditor; and, generally, a joint debt may in equity be set- 
 off against a separate debt where it is clear that joint credit 
 was given on account of the separate debt (y). 
 
 On similar principles, though, generally speaking, a 
 debt incurred by a person in his private capacity could 
 not be set-off against a debt due to him as executor or 
 trustee (^), nor a debt due from a testator be set-off 
 against a debt due to his executor (a), yet special circum- 
 stances, such as an identity of interest in the two debts, 
 
 {w) Clarke v. Cort, Cr. &Ph. 154; 621 ; I:Jxp. Stephens, sup. 
 Williams v. Davies, 2 Sim. 461. {z) Freeman^. Lomas, 9 Ha. 109 ; 
 
 (x) Exp. Stephens, 11 Ves. 24 ; Exp. Kingston, 6 Ch. 632. 
 Exp. Blagden, 19 Ves. 465, 467. («) Lamharde v. Older, 17 Beav. 
 
 ((/) Vvlliamy v. Nohle, 3 Mer. 593, 542.
 
 480 GENERAL PRINCIPLES OF ACCOUNT. 
 
 may suffice to give a right of set-ofF, notwithstanding the 
 formal difference as to the characters (h). 
 Set-off ,''4) Yice versa, the equity of third persons will some- 
 
 in winding- times intervene to prevent a set-off, when otherwise it 
 "P' might have been allowed. Thus a shareholder in a limited 
 
 company who is also a creditor, cannot, in the compulsory 
 winding-up of the company, set-off the amount due to him 
 as creditor against the amount due from him for calls (c). 
 He must pay his calls in full, and then stand on the same 
 footing as other creditors in respect of the debt due to 
 him. It was, however, held at law that in a voluntary 
 winding-up a set-off" of this nature could be claimed, the 
 allowed in Companies Act having made no provision for it (cl). A 
 ruptcy. similar set-off is also allowable where the shareholder is 
 bankrupt, whether the claim is made in the bankruptcy 
 or in the winding-up ; that is to say, whichever way the 
 balance is (e). These cases are governed by the express 
 enactment of the Bankruptcy Act, that in bankruptcy, 
 where there have been mutual dealings between the bank- 
 rupt and a person proving in the bankruptcy, the sum due 
 from one party shall be set-off against any sum due from 
 the other party (/). 
 
 III. Apportionment. 
 
 Apportion- The principles of equity applicable to account are 
 further distinguished from those of law by its fuller appli- 
 cation of the doctrine of apportionment. 
 
 Contracts. Examples of this have already been given ; for instance, 
 in the case of an apprenticeship prematurely deter- 
 mined (g). Other cases of contracts which were not divi- 
 
 (&) Bailey v. Finch, 7 L. R. Q. B. (e) In re Duckworth, 2 Ch. 578 ; 
 
 34. Exp. Strang, 5 Ch. 492. 
 
 (c) Grissell'sCa.,1 Ch.528 ; Comps. (/) 32 & 33 Vict. c. 71, s. 29. 
 
 Act, 1862, 25 & 26 Vict. c. 89, .s. (g) Bale v. Webb, 2 Bro. C. C. 
 
 101. 78; S7ipra, p. 203; Hirst v. Tolion, 
 
 {d) Brighton Arcade Co. v. Dovj- 13 Jur. 596. 
 ling, 3 L.'r. C. P. 175.
 
 CONTRIBUTION. 4S1 
 
 sible at law form equally apt illnstrations : thus if a 
 contract to serve for a year for £100 was determined by 
 death at the end of nine months, no remuneration at all 
 could have been legally recovered (Jt). In such cases 
 equity will grant redress wherever it discovers circum- 
 stances of mistake, accident, or fraud (?'). 
 
 Rents, again, were at common law not apportionable, Rents. 
 and the consequences of this doctrine were continually 
 productive of injustice when a tenant for life died in the 
 interval between two rent days. The full consideration of 
 the difficulties thus arising is not, however, here required, 
 equity having so far followed the law as to render neces- 
 sary a resort to the legislature (k). By the statutes 
 11 Geo. II. c. 19, and 5 Will. IV. c. 22, the greatest of the 
 inconveniences were removed ; and now, by the Appor- Apportion- 
 
 nient Act, 
 
 tionment Act, 1870 (/), it is provided that m luture all rents isro. 
 and other periodical payments in the nature of income 
 shall, like interest on money lent, be considered as accru- 
 ing from day to day, and shall be apportionable in respect 
 of time accordingly (m). 
 
 Previous to this Act, there were, however, some cases 
 in which apportionment might have been had in equit}', 
 though not in law. Thus where portions were payable to 
 daughters at eighteen or marriage, and until then main- 
 tenance was allowed, if a daughter came of age or 
 married in the intermediate period, maintenance was 
 apportionable in equity (n). 
 
 IV. Contribiition. 
 
 The principle of contribution, although in most cases Contribu- 
 recognised at common law, was capable of much more 
 
 (h) Story, 471 ; Corji. of Plymouth ivm-th, 2 V. & B. 331. 
 V. Throgmorton, 1 Salk. 65 ; 3 Mod. (I) 33 & 34 Vict. c. 3.x 
 
 153. (m) s. 2. 
 
 [i) Story, 472. {n) Hay v. Palmer, 2 P. Wms. 
 
 (k) 'RwtBee Meeleyw. Wehher, cited, 501. 
 % Eq. Abr. 704 ; Aynxley v. Woodn- 
 
 t I
 
 4-82 
 
 GENERAL PRINCIPLES OF ACCOUNT. 
 
 Lands 
 subject to 
 charge. 
 
 Settled 
 account. 
 
 What 
 amounts 
 to settle- 
 ment. 
 
 convenient application under the procedure of equity. At 
 law, where lands subject to a charge were subjected to a 
 partition, or sold in lots, one of the several owners paying 
 the charge could recover contribution from the others ; but 
 his remedy lay in actions against them individually, whereas 
 equity could ascertain the proportions, and finally deter- 
 mine the question by one judgment in one suit. The 
 principles of contribution as between sureties have been 
 already fully considered (n). 
 
 When 
 
 accounts 
 
 re-opened, 
 
 V. Defences to an Action for Account. 
 
 1. When an account has been once settled, and a 
 balance struck, equity will not usually interfere, the 
 remedy at law for the recovery of the balance being com- 
 plete (o). The fact of such a settlement, therefore, usually 
 affords a conclusive defence to an action for an account ; 
 and extensive lapse of time naturally adds to the weight 
 of the defence. 
 
 In such cases it is often a matter of dispute whether a 
 settlement has or has not in fact been concluded. A 
 formal examination and signature of the account by the 
 parties is the best evidence of such a settlement ; but 
 other circumstances may suffice to evidence a binding 
 acceptance of the account {p). Where, for instance, an 
 account has been delivered, and no objection is made 
 within a reasonable time, the extent of which will of 
 course depend upon the nature of the account, acquiescence 
 thereto will be implied, and the account will be deemed 
 a stated account {q). The mere delivery of an account 
 will not, however, suffice to establish the fact of a 
 settlement (r). 
 
 When in an action for an account the defence alleges 
 a settlement, one of two courses may be open to the 
 plaintiff. In some circumstances equity will not refuse to 
 
 (n) p. 327, et seq. 
 
 (o) Dawson v. 1)., 1 Atk. 1. 
 
 (p) Willis V. Jernegan, 2 Atk. 251. 
 
 (7) Ibid. 
 
 (r) Irving v. Young, 1 S. & S. 
 333.
 
 DEFENCES TO AN ACTION FOl? ACCOUNT. 483 
 
 reopen the account, notwithstanding a settlement. The 
 most jjotent of these is fraud. Thus if the parties to the 
 settlement were not on equal terms, and it appears that 
 one has been deceived, or has acted under duress, equity 
 will grant relief (s). Such cases fall under the general 
 principle of relief against fraud, which has already been 
 considered. Similarly, on grounds of mistake or accident, 
 equity will sometimes reopen an account; and this will 
 always be done the more readily where there is a confi- 
 dential relation between the parties, such as that of trustee 
 and cestui que trust, or S(jlicitor and client (t). When an 
 account is thus wholly reopened, it is, of course, taken as 
 at first, the burden of proof resting on each party to prove 
 that which he claims to stand to his credit. 
 
 But in other cases, though there may not be sufficient Liberty to 
 grounds to induce the Court wholly to reopen the account, and falsify, 
 it may grant leave to the plaintiff' to surcharge and falsify, 
 the effect of which is to throw on him alone the burden of 
 proving any omission or error. If he can establish the 
 omission of some item in his favour, it will be allowed as 
 a surcharge ; if an error, the falsification will be rectified ; 
 but the onus prohandi is wholly on him, the account, as a 
 whole, being deemed prima facie correct («). Questions 
 of law, as well as of fact, may be raised upon leave to 
 surcharge and falsify (x). 
 
 2. Unless excluded by the existence of an express trust. Statute of 
 the Statute of Limitations applies to an action for an ^^^l '^' 
 account in equity as well as at law ; and not only so, but 
 equity sometimes refuses to interfere with accounts on the 
 ground of laches, though not extending to the statutory Laches. 
 period. The maxim, " Vigilantlbus non dormientibus 
 cequitas subvenit," is peculiarly applicable to such cases as 
 those in question, the proofs in which are so liable to 
 destruction by lapse of time. 
 
 (s) Ve)-nonv. Vawdry, 2 Atk. 119 ; (it) Pitt v. Cholmondeley, 2 Ves. 
 
 Clarke v. Tipping, 9 Beav. 284. sr. 565. 
 
 {t) Matthews v. WalliKyn, 4 Ves. [x) Rohcrts v. Kiiffin, 2 Atk. 112. 
 125 : ToiJd v. Wilsoih 9 Beav. 486. 
 
 I I 2
 
 484 
 
 CHAPTER II. 
 
 THE ADMINISTRATION OF ASSETS. 
 
 Section I. — Administration Generally. 
 
 I. What is vieant by Assets. 
 
 Distinctions between Lef/al and Equitable 
 Assets. 
 II. The Priority of Debts. 
 
 III. rder of A dministration. 
 
 Ancaster v. Mayer. 
 
 IV. Payment of Mortgage Debts. 
 V. Marshalling of Assets. 
 
 Aldrich v. Cooper. 
 VI. MarshaUii'ig of Securities. 
 
 I. What is meant by Assets. 
 
 Assets 1. Under the ancient common law the debts of a 
 
 deceased person were always payable out of his personal 
 estate. The personal estate vested in the legal personal 
 representative as soon as constituted, and to him the 
 creditor must resort for satisfaction. But the personal 
 representative, whether executor or administrator, was only 
 chargeable to the extent of the personal estate of the 
 debtor in his hands. This was termed " assets." The 
 completeness of the creditor's remedy depended upon 
 whether it was " assez," or sufficient to meet all the debts.
 
 WHAT IS MEANT BY ASSETS. 485 
 
 2. It was fur a long time quite dependent upon a person's Ileal 
 option whether or not liis real property should be available ^^^^ ^' 
 for the payment of debts, in case the personalty should 
 prove insufficient. He might bind his heirs by deed or 
 specialty to the payment of any debt or the fulfilment of 
 any contract, to the value of the lands descending. In 
 this case the position of the heir with respect to such 
 specialty debts was similar to that of the executor or 
 administrator with respect to debts generally ; and the 
 lands so descended were then termed real assets, or assets 
 by descent. But the heir was not at all bound unless he 
 was named in the deed or covenant, and, since he was oidy 
 liable in any case to the extent of lands descending, the 
 expectation of the specialty creditor, even when the heir 
 was named, was wholly defeated if the testator devised 
 his real estate away from his heir. There was no law to 
 charge the devisee, and the heir took nothing to be 
 charged. 
 
 •3. At length a statute was passed commonly known as Statutory 
 the Statute of Fraudulent Devises {a), which made void 3*^^ ^^^^ ^ ' 
 all devises by will as against creditors by specialty in "*'ViU. & M. 
 wliich the heirs were bound. Still, creditors who had not 
 fortified themselves by securing a bond or covenant under 
 seal were at the mercy of their debtor so far as concerned 
 his real estate. The next step in their favour was taken 
 in 1807, when, by 47 Geo. III. c. 74, the fee simple estates 47 Geo. 
 of deceased traders were rendered liable to simple contract ' ^' ' 
 as well as to specialty debts. In 1833 this remedy of 
 creditors ceased to be confined to the case of traders, it 
 being enacted by 3 & 4 Will. IV. c. 104, that all fee simple 3 & 4 
 estates not charged with or devised subject to the payment ^. jo'4. 
 of debts, should be liable to be administered in the Court 
 of Chancery for the payment of all the just debts of the 
 deceased owner, whether by simple contract or specialty. 
 By these steps fees simple estates at length becames assets 
 for the payment of all debts. 
 
 [a) 3 & 4 Will. & M. c. 14.
 
 486 ADMINISTRATION GENERALLY. 
 
 E.iuitable 4. But meanwhile tlie honesty of testators had devised a 
 ^^^ ^' means by which creditors might obtain a satisfaction out 
 of their real estate which the law did not afford them. It 
 became a common thing for testators to expressly devise 
 their lands to trustees upon trust for sale for the payment 
 of their debts ; or, which was, so far as concerned creditors, 
 the same in effect, to charge their lands in the hands 
 of the devisees with the payment of their debts. It 
 is evident that the lands thus expressly made available for 
 creditors Avere in a very different position from lands 
 descending, or made legally liable to debts by statute. In 
 the case of lands devised on trust for sale for or charged 
 with payment of debts, the legal personal representative 
 had nothing at all to do with them. The funds in his 
 hands were the same as before, and to avail themselves of 
 the testator's directions in their favour the creditors could 
 not sue the executor or administrator, but were required to 
 proceed in Chancery for the performance of the trust 
 created in their favour. The lands thus brought within 
 their reach were termed equitable assets. 
 How dis- It will be observed that the distinction between legal 
 from^* and equitable assets does not at all relate to the nature of 
 legal the title to the property itself Thus an equity of redemp- 
 
 tion of a leasehold is of course an equitable interest ; but 
 it would none the less, on the death of the owner, become 
 legal assets, because it would devolve upon the personal 
 representative. The real test is whether or not the pro- 
 perty comes to the executor virtute officii. If it does, it 
 forms legal assets ; if it does not, but the creditor has to 
 resort to the Court of Chancery to secure the benefit of 
 it, it is equitable assets. The distinction thus refers to 
 the remedy of the creditor, not to the nature of the 
 property (h). 
 Species of Nor are lands thus devised on trust for sale or charged 
 assets! ^ ^^^^^ debts the only species of equitable assets. The 
 same principle which distinguishes them from legal assets 
 
 (fj) Cook V, <ivc(json, 3 Drew, 549.
 
 EQUITABLE ASSETS. 4f87 
 
 includes also the separate estate, whether real or personal, 
 of married women, this being a creature of equity, and its 
 liability to debts being recognised only in equity (c) ; and it 
 has been held that separate estate arising under the Married 
 Women's Property Act, 1870, is subject to the same 
 rules (d). For the same reason — namely, that it does not 
 come to the hands of an executor virtute officii — property 
 over which a testator has exercised a general power of 
 appointment is equitable assets (e). 
 
 Until quite recently the distinction between legal and Character- 
 equitable assets was of great importance. In the adminis- equitable 
 tration or distribution of legal assets, a certain definite assets. 
 order of priority was observed between different species of 
 debts. This order we shall presently consider in greater 
 detail ; at present it suffices, by way of illustration, to state 
 that creditors by specialty were entitled to be paid in full 
 before any payments were made to those whose claims 
 arose from simple contracts. And when all debts were 
 made recoverable out of real estates by the statute of 1833, 
 this order of priority was not interfered with. The Court 
 of Chancery, however, has always observed as a maxim I 
 that " Equality is equity." In its distribution of equitable I 
 assets, therefore, it disregarded the legal rules as to \ 
 priority, and treated all creditors, whatever the nature j 
 of their claims, ^X67'i passu. Moreover, it went farther than 
 this in its favour of equality. Where there was a mixed 
 fund of legal and equitable assets, and the specialty 
 creditors, availing themselves of their priority with respect 
 to the former, exhausted them, so as to leave nothing for 
 the simple contract creditors, equity would not suffer any 
 specialty creditor to receive any part of the equitable assets 
 until the simple contract creditors were paid up to an 
 equality with what the specialty creditors received from 
 the legal assets (/). 
 
 (c) Oivens\.Dickcmon,Q,r. kVh.i?!. [e) Pardo v. Binr/ham, 6 Eq. 485. 
 
 (d) Thompson v. Bennett, 6 Ch. (/) Blanket v. Benson, 2 Atk. 
 D. 739. 290 ; Bain v. Sadler, 12 Eq. 570.
 
 488 AD.MIMSTHATION (JENEKALLY. 
 
 It has been observed that the creation of equitable assets 
 was not interfered with by 3 & 4 Will. IV. c. 104, lands 
 devised charged with debts or on trust for their payment 
 being excepted from its operation. The same exception 
 had been made in 3 & 4 Will. & M. c. 14. One con- 
 sequence, therefore, of the equitable method of distribution 
 of equitable assets, was that a testator who had at law 
 given a creditor the security of a bond, or other specialty 
 binding his heirs, might defeat the legal priority thus 
 bestowed by devising his realty charged with debts, and by 
 this means placing its distribution in the hands of 
 Chancery. 
 
 5. Two recent statutes have, however, to a great extent 
 destroyed the importance of the distinction between legal 
 32 & 33 and equitable assets. First, by 32 & 33 Vict. c. 46, it is 
 ^'^ ' ^' ' enacted that, " In the administration of the estate of every 
 person who shall die on or after the 1st day of January, 
 1870, no debt or liability of such person shall be entitled 
 to any priority or preference by reason merely that the 
 same is secured by or arises under a bond, deed, or other 
 instrument undei seal, or is otherwise made or constituted 
 a specialty debt ; but all the creditors of such person, as 
 well specialty as simple contract, shall be treated as stand- 
 ing in equal degree, and be paid accordingly out of the 
 assets of such deceased person, whether such assets are 
 legal or personal, any statute or other law to the contrary 
 notwithstanding ; provided, also, that this Act shall not 
 prejudice or affect any lien or charge, or other security 
 which any creditor may hold or be entitled to for the pay- 
 ment of his debt." 
 
 Judicatme G. Again, by sect. 10 of the Judicature Act, 1875 (c/), it 
 Act 1875 . ' \i//' 
 
 ^. 10. ' i« enacted that, " In the administration by the Court of the 
 
 assets of any person who may die after the commencement 
 
 of this Act, and whose estate may prove to be insufficient 
 
 for the payment in full of his debts and liabilities . . . 
 
 the same rules si tall prevail and be observed as to the re- 
 
 (;/) 38 & :J'..! Vict. c. 77.
 
 PRIORITY OF DEBTS. 489 
 
 spective rights of secured and unsecured creditors, and as 
 to debts and liabilities proveable, and as to the valuation 
 of annuities and future and contingent liabilities respec- 
 tively, as may be in force for the time being under the law 
 of bankruptcy with respect to the estates of persons ad- 
 judged bankrupt." 
 
 The former of these statutes came into operation on the 
 1st January, 1870, the latter on the 1st November, 1875 (/?). 
 As to persons who died before the end of 1869, the old 
 rules as to priority in administration therefore remain ap- 
 plicable ; and as to persons who died between that date 
 and the 1st of November, 1875, the old rules apply, except 
 that specialty and simple contract creditors stand on the 
 same footing. As cases still occur to which neither of the 
 statutes apply, the old law cannot yet be treated as obso- 
 lete ; and it is accordingly necessary in considering the 
 details of administration to distinguish between the three 
 periods indicated. 
 
 II. Priority of Debts. 
 
 1. Before 32 <h 33 Vict c. 46. 
 
 The following is the order in which the executor was 
 and is required to pay out of legal assets the debts owing 
 by testators who died previous to the 1st of January, 1870 : 
 
 (1.) Debts due to the Crown b}' record or specialty. Debts to 
 Debts not of record or specialty have not absolute priority, reciirJ o/ 
 but they nevertheless have priority over debts of equal specialty. 
 degree due to subjects (i). 
 
 (2.) Debts to which particular statutes give priority — Statutory 
 for instance, poor rates, by virtue of 17 Geo. II. c. 38 ; P''^""*^'- 
 regimental debts, by virtue of 26 & 27 Vict. c. 57 ; cer- 
 tain liabilities to building societies (k), and to friendly 
 societies (l). 
 
 (3.) Judgment debts duly registered. Final decrees, and Registered 
 
 judgments, 
 (h) Sher win \. Selkirk, 12 Ch.D.68. (k) 4 & 5 Will. IV. c. 40, s. 12. 
 
 (i) Re Henley & Co., 9 Ch. D. 481. (1) 38 & 39 Vict. c. 60, s. 1.x
 
 490 
 
 ADMINISTRATION GENERALLY, 
 
 and judg- 
 ments 
 again^it 
 executor. 
 
 Statutes 
 and recog- 
 nizances. 
 
 Specialty 
 debts. 
 
 Unregis- 
 tered judg 
 ments 
 against 
 
 orders of Courts of equity ordering money to be paid 
 to a person, have the same effect as judgments (m). 
 Pari passu with such judgments and decrees rank judg- 
 ments recovered against the personal representative him- 
 self, even though unregistered (71). 
 
 Registration was required of judgments against the 
 deceased debtor, for the protection of the personal repre- 
 sentative, who would otherwise be subject to unavoidable 
 loss by exhausting the assets in paying debts of inferior 
 degi-ee, and then finding himself liable to a judgment debt 
 of which he had no knowledge. Of course, in the case of a 
 judgment against himself, no such reason applied to deprive 
 the creditor of the reward of his superior diligence. 
 
 (4.) Debts of record other than judgments — e.g., statutes 
 and recognizances. Statutes have long been obsolete. Re- 
 cognizances are, however, continually employed — for in- 
 stance, they are required from persons appointed by the 
 Court of Chancery as receivers. 
 
 (5.) Debts by specialty contracts for valuable considera- 
 tion, whether the heir is or is not bound. A mere recital 
 of a debt in a deed does not constitute it a specialty debt. 
 It is necessary that it should be created, or at least novated, 
 by the deed (o). 
 
 Arrears of rent service rank equally with debts by 
 specialty, even though the rent be reserved by parol. The 
 liability of a contributory in the winding-up of a company 
 under the Companies' Act, 1862, is also of the nature of 
 a specialty debt (j)). A voluntary bond assigned for value 
 in the lifetime of the obligor was held to rank as a 
 specialty {q). 
 
 (6.) Unregistered judgments against the deceased debtor, 
 and debts by simple contract. These comprise debts due 
 on negotiable instruments, and also liabilities in respect of 
 
 [m) 1 & 2 Vict. c. 110, s. 18 ; Wil- 
 son V. Dunsany, 18 Beav. 299. 
 (h) Williams V. W., 15 Eq. 270. 
 (o) Iven V. Elwes, 3 Drew, 25. 
 
 (p) Buck V. Rohson, 10 Eq. 629. 
 (7) Payiw V. Mortimer, 4 De G. & 
 J. 447, 452.
 
 PRIORITY OF DEBTS. 491 
 
 breaches of trust not being- breaches of covenant under <leceased, 
 
 ... and simple 
 
 seal \T), contract 
 
 (7.) A claim by an incumbent against the representa- <^®^|^^- 
 tives of his predecessor for dilapidations (s). incumbent. 
 
 (8.) Voluntary bonds or covenants in the hands of a Voluntary 
 volunteer. These, though postponed to all contract debts, covenants. 
 were considered by virtue of their antecedent legal title to 
 have priority over legatees (t). The holder of a voluntary 
 bond may, moreover, sustain a creditor's suit for administra- 
 tion, and his claim is preferred to a claim for interest upon 
 debts which do not carry interest at law (?t). 
 
 Such is the order of payment so far as unaffected by 
 legislation. Before considering the effects of the statutes 
 which have modified it, it may be well to mention certain 
 liabilities and powers of executors which have special refer- 
 ence to the rules as to priority. 
 
 2. Rights and liabilities of executors, d'c. 
 
 (1.) An executor who, having notice of a superior debt, Executor's 
 voluntarily paid one of inferior order, thereby rendered creditors. ° 
 himself personally liable, in case of a deficiency of assets, 
 to pay the former debt. He was at one time presumed to 
 have notice of judgments and decrees in equity against the 
 deceased. But from the hardship which thus threatened 
 him he was relieved by various statutes, which rendered such 
 judgments of no effect against him unless docketed or 
 registered (v). As regards other debts, he was not liable, 
 except in case of actual notice (x). 
 
 (2.) Among creditors of equal degree an executor might Power of 
 
 r. , xi / \ preference. 
 
 pay one m preierence to another {y). 
 
 (3.) An executor or administrator, to whom a debt. Retainer, 
 whether legal or equitable, was owing by the deceased per- 
 son, had a right to retain his debt out of the legal assets 
 
 (>•) Adey v. Arnold, 2 De G. M. & Vict. c. 110 ; 2 & 3 Vict. c. 11 ; 23 
 
 G. 432. & 24 Vict. c. 38. 
 
 (s) Bryan v. Clay, 1 E. & B. 38. (x) Brooking v. Jennings, 1 Mod. 
 
 (t) Fletcher v. F., 4 Ha. 74. 175. 
 
 (m) Garrard v. Dinorhcn, 5 Ha. {y) Lyttleton v. Cross, 3 B. & C. 
 
 213. 317, 322. 
 
 (r) 4 & 5 Will, k M. c. 20 ; 1 & 2
 
 ADMINISTRATION GENERALLY. 
 
 Effect of 
 32 & 33 
 Vict. c. 46, 
 
 in priority to other creditors of equal degree (z). An exe- 
 cutor of an executor or administrator might similarly retain 
 for a debt due to the executor or administrator (a). And 
 a husband who was executor might retain for a debt due 
 to his wife, or, if his wife was executrix, might retain for 
 a debt due to himself or his wife (6). 
 
 No such rights of retainer existed with respect to equit- 
 able assets ; but though the Judicature Act has, as far as 
 regards the order of distribution, in some respects put equit- 
 able and legal assets upon the same footing, it has been 
 held that it does not interfere with the well-established 
 right of retainer out of legal assets (c). 
 
 There are two ways in which a legal personal representa- 
 tive may secure himself from his primary liability for the 
 debts of the deceased. First, by throwing the administra- 
 tion into the hands of the Court. As long as the estate 
 is being administered, the creditor's remedy is of course to 
 prove his debt therein. When the administration is com- 
 plete, his only resource is to follow the assets into the hands 
 of the residuary legatee or next of kin (d). Secondly, the 
 legal personal representative may obtain a statutory pro- 
 tection under 22 & 23 Vict. c. 35, s. 29, by issuing regular 
 notices, and distributing the estate in accordance therewith. 
 If, however, he administers out of Court on his own respon- 
 sibility, he remains prirnd facie liable to the claim of 
 any unjjaid creditor, though if required to pay a debt of 
 which at the time of distribution he had no notice, he 
 would be entitled to call upon the residuary legatee or 
 next of kin to refund (e). 
 
 3. Priority of debts under 32 & 33 Vid. c. 4G. 
 We have seen that this Act places specialty debts on the 
 same level and footing as debts by simple contract. And 
 
 [z] Cockcroft V. Black, 2 P. Wnis. 
 298. 
 
 (a) Hopton v. Dryden, Free. Ch. 
 180 ; Weeks v. Gore, 3 P. Wms. 
 184, n. 
 
 (b) Atkinson v. Rmrson, 1 Mod. 
 
 208. 
 
 ((•) Lee V. Nuttall, 12 Ch. D. 61 ; 
 Richmond v. White, ih. 361. 
 
 (d) Thomas v. Griifitks, 2 Giff. 504 ; 
 2 De G. F. & J. 555. 
 
 (e) Jerris v. Wolfcstan, 18 Eq. 18.
 
 PRIORITY OF DEBTS. 498 
 
 it includes in its operation those other debts which we 
 have mentioned as previously ranking with specialty debts 
 — viz., debts due from contributories in the winding-up of 
 companies and arrears of rent (/). 
 
 With this exception, however, the order remains as 
 before. Debts to the Crown, judgments, and other debts 
 of record retain their former position. And this being so, 
 a creditor in an administration under this Act who secures 
 a judgment against an executor for a simple contract debt, 
 thereby actually gains priority over a creditor by special 
 contract (g). The executor's right of retainer was not 
 aftected by this Act (A). 
 
 4. Priority under the Judicature Act, 1875 (i). 
 
 The above quoted section of this Act has in some Effect of 
 respects completely changed the method of administration '^^^ ,.' 10. 
 as regards the debts of persons dying since the 1st of 
 November, 1875 ; but nevertheless the effect of this enact- 
 ment does not appear to be so extensive as at first sight 
 one might suppose. 
 
 In the first place, its application is confined to cases of Applies to 
 the administration by the Court of imaolvent estates, estates 
 Thus where the assets of a person are sufficient to meet *'"^>'- 
 his liabilities, the order of payment remains as before ; a 
 matter which is in this case of course of very little 
 moment. And again, where no recourse is had to the 
 Court for the administration of insolvent estates, the 
 priorities of creditors are determined by the old law. 
 
 Further, the law of bankruptcy is by this section, even How far 
 when it operates, only to be applied in three respects : bank-° 
 (1) As to respective rights of secured and unsecured ruptcy 
 creditors ; (2) As to the debts and liabilities proveable ; ' 
 (3) As to the valuation of annuities and future and con- 
 tingent liabilities. It is only the first of these heads 
 which can affect the rules as to priorities now under view. 
 
 (/) Shirreff v. Hastings, 6 Ch. D. (h) Croioder v. Steimrt, 16 Cli. D. 
 
 610. 368. 
 
 {g) Hanson v. Stubbs, 8 Ch D. (/) 38 & 39 Vict. c. 77. 
 154.
 
 ADMINISTRATKIX GENERALLY. 
 
 The question is, to what extent it modifies the previous 
 law. 
 
 In one respect the change introduced is obvious. In 
 ec|uity a mortgagee has always been allowed to pursue all 
 his remedies concurrently ; his enforcement of one does 
 not prejudice him in the prosecution of another ; he may 
 at the same time sue personally for his debt, and proceed 
 to enforce his specific security by foreclosure or sale. It 
 was held in an important case (k) that the death of the 
 mortgagor made no diflPerence to this right, and that thus 
 in the administration of his estate the mortgagee might 
 share rateably with other creditors by proving for the full 
 amount of his debt against the estate ; and having received 
 his dividend, might proceed to realise his security, and 
 retain thereout the whole balance due to him. He might 
 thus receive twenty shillings in the pound, while the un- 
 secured creditors had to be satisfied with a small dividend. 
 
 Under the Bankruptcy Act, 1869, the position of a 
 mortgagee or other secured creditor is, however, much less 
 advantageous. By s. 40 of that Act, he is required to 
 elect whether he will prove for his whole debt, and at 
 the same time give up his security for the benefit of the 
 estate ; or whether he will retain his security, and after 
 valuation, or sale of it, prove only for the balance of his 
 debt. The effect of his security is thus not prejudiced, 
 but as regards the balance of his debt he is in no better 
 position than any other creditor ; and if not fully secured, 
 he cannot receive twenty shillings in the pound unless the 
 unsecured creditors do so also. 
 Judicature The effect of the Judicature Act, then, is clearly to sub- 
 stitute this rule for the rule established by Mason v. Bogg (l) 
 in the administration by the Court of insolvent estates. But 
 the language of the Act might lead to the supposition 
 that the assimilation to the bankruptcy law would extend 
 further than this. Certain priorities among debts are 
 definitely laid down in the Bankruptcy Act. By s. 32, 
 
 (k) Mason v. Borjg, 2 My. & Cr. 443. (/) Sup. 
 
 Act
 
 PRIORITY OF DEBTS. 495 
 
 certain rates and taxes and certain wages and salaries are 
 to be paid before general debts, and with these exceptions 
 all debts proveable under the bankruptcy are to be paid 
 Ijari passu. Now these preferential debts are quite diffe- 
 rent from those to which priority was given in adminis- 
 tration. The difference is two-fold ; there is a conflict on 
 both sides. On the one hand, bankruptcy gives no priority 
 to judgments registered or unregistered, or to recognizances, 
 over simple contract debts ; on the other hand, in adminis- 
 tration no preference was shown for wages and salaries. 
 Have, then, the words of the Judicature Act the effect of 
 abolishing the old rules of priorities in cases of adminis- 
 tration by the Court, and substituting for them the pre- 
 ferences provided for by the Bankruptcy Act ? 
 
 It seems that this question must be answered in the 
 negative. In Lee v. Niittall (ni), James, L. J. said : " The 
 sole object of the 10th section, as it appears to me, was to 
 get rid of the rule in Chancery under which a secured 
 creditor could prove for the full amount of his debt and 
 realise his security afterwards, and to put him on the same 
 footing as in bankruptcy." Again, the executor's right of re- 
 tainer, which has nothing corresponding to it in bankruj)tcy, 
 has been held to remain as it was before the Act (n). It 
 has further been decided that in the winding-up of 
 companies to which the same w^ords in the same section 
 apply, the preferences recognised in bankruptcy do not 
 operate (o), from which it seems almost a corollary that 
 the old priorities are not displaced. More recently still it 
 has been expressly decided that in administration a judg- 
 ment creditor has still the same priority as he had before 
 the Act (p). 
 
 We conclude, then, that the Judicature Act, 1875, has 
 
 (m) 12 Ch. D. 61. 337. See also /« re Printing <i-c. 
 
 (n) Ibid. ; Richmoml v. WJnte, 12 Co., 8 Ch. D. 535 ; In re Taylor, ib. 
 
 Ch. D. 361. 188 ; In re Goal Consumers' Assoc, 4 
 
 (o) Re Albion <i'C. Co., 7 Ch. D. 547; Ch. D. 630 ; In re Richards d- Co., 
 
 Re Withernsea Brickworks, 16 Ch. D. 11 Ch. D. 681 ; In re W. of E. Bank, 
 
 337. 12 Ch. D. 825 ; In re Association of 
 
 (p) Smith V. Morgan, 5 C. P. D. Laml Financiers, 16 Ch. D. 373.
 
 496 ADMINISTRATION GENERALLY. 
 
 not affected the rules as to priority, and that they there- 
 fore remain as they were placed by 32 & 33 Vict, c 4(!. 
 
 III. Order of Administration. 
 
 Such being tlie order of priority inter se of the creditors 
 
 of a deceased person, the next inquiry is as to the order 
 
 in which the assets will be aj^plied in the discharge of the 
 
 liabilities. This inquiry in effect ascertains the respective 
 
 priorities of the various classes of persons who claim to 
 
 take the deceased's estate beneficially. 
 
 Rights of It will, of course, be remembered in considering this 
 
 not ^ °^ question, that the points now to be raised do not in 
 
 affected by .^y -yy^y interfere with a creditor's rights. His remedies 
 
 extend to the whole of the assets, and are not prejudiced 
 
 by any claims which the difl'erent classes of legatees, 
 
 devisees, &c., may have inter se. Under the head of 
 
 Marshalling we shall see how those claims are adjusted, if 
 
 the creditor, in pursuance of his rights, resorts to the assets 
 
 in an order contrary to that which the law prescribes as 
 
 between the beneficiaries. 
 
 General 1- It was well established in the case of 
 
 personalty 
 
 first liable. ANCASTER v. MAYER 
 
 [1 Bro. C. C. 454 : W. & T. L. C], 
 
 and has ever since been the rule, that in the administration 
 of the estates of deceased persons, the general personal 
 estate is the primary fund for the payment of their debts. 
 In order to avoid this primary liability, it is necessary that 
 the personal estate should be exempted, either by express 
 words or by the indication of a manifest intention to the 
 contrary. 
 Exemp- Exemption by express words is so plain a matter as to 
 
 tion: need no exposition or illustration. But the question as to 
 
 express, ^ ...... . 
 
 implied. what amounts to a manifest indication of intention to exempt 
 the personalty is one which has caused such difficulty to
 
 ORDER OF ADMINISTRATION. 497 
 
 judges as to have elicited frequent expressions of the wish 
 that nothing but express words had been permitted to 
 alter the course and order of law. 
 
 It must be always remembered that the burden of proof Onus of 
 lies on those who claim to have the personalty exone- 
 rated (q). Bearing this in mind, we shall first state what 
 is not considered a sufficiently manifest indication of this 
 intention; and, secondly, shall examine some cases in 
 which the personalty was held to have been exonerated. 
 
 (1.) Neither a charge of the debts upon the land, nor a What does 
 direction to sell it for the payment of debts, nor the personalty! 
 creation of a term for that purpose, nor even a devise Charge of 
 upon the condition of the devisee's paying the testator's 
 debts, will exempt the personalty from its primary lia- 
 bility (r). It is necessary not only that the realty should 
 be charged, but that the testator should indicate a purpose 
 that the personalty should not be applied (.s). Again, the 
 mere charge of funeral or testamentary expenses, or both 
 together with the debts upon the real estate, will not of 
 itself exempt the personalty (t), though it may afford a 
 strong argument in that direction (u). 
 
 An express charge on the personalty of some particular Express 
 debts, such as simple contract debts or legacies, for the pay- gon^e debt 
 ment of which it would without such charge be primarily o^ P'^''- 
 liable, will not, by the application of the maxim, Expressio 
 unius est exclusio alterius, raise a sufficient presumption 
 that it was intended to be only an auxiliary fund for the 
 payment of other liabilities not expressly charged upon it, 
 but charged upon the land (x). 
 
 A bequest of all the personal estate, with or without Bequest 
 specific description, will not, at least where the legatee is sonaity. 
 
 (q) Whiddon v. Spode, 15 Beav. 145. 
 
 539. {t) Brydges v. Phillips, 6 Ves. 570 ; 
 
 (?•) Tower v. Rous, 18 Ves. 132, Booth v. Bluriddl, 1 Mer. 229. 
 
 138 ; White v. W., 2 Vern. 43 ; (u) Tower v. Rom, 18 Ves. 132, 
 
 Inchiquin v. French, 1 Cox, 1 ; 139. 
 
 Bridgman v. Dove, 3 Atk. 201. {x) Watson v. Brickioood, 9 Ves. 
 
 (s) Quennell v. Turner, 13 Beav. 447. 
 240 ; Samwdl v. Wake, 1 Bro. C. C. 
 
 K K
 
 498 ADMINISTRATION GENERALLY, 
 
 also appointed executor, be so distinguished from a general 
 residuary bequest as to exonerate the personalty passing 
 under such bequest, although lands are devised in trust to 
 pay all the testator's debts {y). It has also been so decided 
 where the legatee was not executor {z). Such a case is 
 stronger, however, in favour of exoneration than the former, 
 and has, when coupled with a charge of debts and funeral 
 and testamentary expenses upon the realty, been often con- 
 sidered sufficient to constitute the real estate a primary 
 fund for their payment {a). It is still stronger in favour 
 of exoneration, if with such a bequest a particular real estate 
 has been devised upon trust for payment of debts and 
 funeral and testamentary expenses (6). 
 Parol evi- Parol evidence is not admissible to show the intention 
 
 dence not 
 
 admissible, of a testator to give his personal estate free from debts, nor 
 
 will any inference be drawn concerning the testator's 
 
 intention from a consideration of the relative amount of 
 
 his personal estate and debts ; and consequently no inquiry 
 
 will be directed to ascertain such relative amount (c). 
 
 Cases of ^2.) The primary liability of the general personal estate 
 
 exemption. . . "^ "^ . P ^ . 
 
 will be displaced by the approiDriation of a specific part of 
 
 the personal estate to the payment of debts, coupled with a 
 
 bequest of the general residue. But if there is no such 
 
 residuary bequest the residue will still remain primarily 
 
 liable, notwithstanding the appropriation of the specific 
 
 fund {d). On the same principle, it must be observed that 
 
 even an express exemption of the personalty will not extend 
 
 to the benefit of the next of kin claiming by a lapse (e). 
 
 Where a testator devised his real estate to be sold, and 
 
 directed the money to arise by the sale to be applied to 
 
 pay mortgages and all other debts, the residue to be 
 
 (y) Harewood v. Child, stated Ca. Driver v. Ferrand, 1 R. & M. 681 ; 
 
 t. Talb. 204 ; Haslewood v. Pope, 3 P. Gilbei-tson v. G., 34 Beav. 354. 
 Wms. 324. (b) PoneJl v. RiUy, 12 Eq. 175. 
 
 (2) CoUis V. Robins, 1 De G. & Sm. (c) Tait v. Northwick, 4 Ves. 816 ; 
 
 131 ; Ouseley v. Anstruther, 10 Beav. Stephenson v. Heathcote, 1 Ed. 38. 
 453. (d) Booth V. Blundell, 1 Mer. 220. 
 
 (a) Greene \. G., 4 Madd. 148 ; (c) Warinrj v. Ward, 5 Ves. 675.
 
 ORDER OF ADMINISTRATION. 499 
 
 added to the personal estate, this was held to make the 
 real estate the primary fund (/). 
 
 We are led, then, to the conclusion that the first fund General 
 to be resorted to for the payment of debts is the general 
 personal estate ; and that its primary liability will only be 
 disturbed by an express declaration of such intention, or by 
 dispositions which very clearly imply it. In the case of a 
 mortgage debt there are other considerations involved, 
 with a series of statutory modifications, which it is con- 
 venient to postpone for separate treatment. 
 
 2. After the general personalty, the next fund resoi'ted Lands 
 to for the payment of debts is land devised upon express trust for 
 trust for their payment (g). As we have seen, such land is debts. 
 equitable assets, and, therefore, in all cases distributed 
 amongst creditors pari passu. 
 
 3. Next in order stand lands descended to the heir, and Lands 
 not charged with debts (h). Since 3 & 4 Will. IV. c. 106, 
 
 if there is a specific devise of lands to the heir, he is con- 
 sidered to take them in the character of devisee, and not by 
 descent. His position as regards these lands is therefore 
 the same as that of any other specific devisee (i). 
 
 4. Lands devised and personalty bequeathed charged Devises 
 with the payment of debts are next liable (/f) ; and being bequests 
 equitable assets, are distributed in payment of del)ts 2^'^o charged. 
 rata. Moreover, if a devise of lands so charged lapses, 
 
 and the heir consequently takes, this does not alter their 
 place in the order of administration. They still rank as 
 lands charged, and not as lands descended (l). 
 
 Lands charged with debts being equitable assets, the 
 Court, in its favour of an equal distribution amongst creditors, 
 has been inclined to give as wide a construction as possible 
 
 (/) Webb V. Jones, 2 Bro. C. C. (i) Sec. 6, Biedermannv. Seymour, 
 
 60 ; 1 Cox, 245. 3 Beav. 368. 
 
 ig) Serle v. St. Eloy, 2 P. Wms. [k) Donne v. Lems, 2 Bro. C. C. 
 
 386 ; Phillips v. Parry, 22 Beav. 259 ; Barnewell v. Cawdor, 3 Mad. 
 
 279. 453. 
 
 (h) Davies v. Topp, 1 Bro. C. C. [1) Wood v. Ordish, 3 Sm. & G-. 
 
 524, 527. 125 ; Stead v. Hardaker, 15 Eq. 175. 
 
 K K 2
 
 ADMINISTRATION GENERALLY. 
 
 to any passage in a will which can be considered as 
 amounting to a charge of debts (m). 
 
 A mere declaration that the debts shall be paid by the 
 executors will not, indeed, amount to a charge of debts on 
 realty, which does not come to the hands of the executors 
 at all. But if with such a direction real estate is devised 
 to executors, then it is considered as charged in their hands, 
 unless from the special circumstances of the case a contrary 
 intention is apparent (n). If, moreover, there is a direction 
 in general terms that debts shall be paid, not specifying by 
 whom, and accompanied by an expressed intention to dis- 
 pose of the real estate, that effectually charges devised 
 lands (o). The principle is that such a general direction 
 indicates an intention that the debts shall at all events be 
 paid in preference to any disposition of real or personal 
 property ( p). 
 
 The law, statutory and otherwise, respecting the sale and 
 disposition of charged lands is discussed elsewhere (q). 
 
 5. General pecuniary legacies next abate pro rata as 
 far as is necessary (v-). Annuities are equivalent to 
 legacies, and after valuation (since the Judicature Act on 
 the principles of bankruptcy) abate pro rata with them (s). 
 It must be observed also that if a general legacy be given 
 for valuable consideration, such as the relinquishment of 
 dower, or of a debt, it is entitled to priority over all merely 
 voluntary legacies (t). 
 
 6. Then specific legacies (u) and specifically devised 
 real estate (x) not charged with debts are resorted to pro 
 rata. 
 
 Under this head it is to be observed that a residuary 
 devise is considered to be specific. While a residuary 
 
 (m) Silk V. Prime, 1 Bro. C. C. 
 139. 
 
 (n) Warren v. Davies, 2 My. & K. 
 49 ; Bailey v. B., 12 Ch. D. 268. 
 
 (o) ShaUcross v. Finden, 3 Ves. 
 738. 
 
 ( P) Clifford V. Leims, 6 Madd. 38. 
 
 (q) See pp. 298 et seq. 
 
 (r) Clifton V. Burt, 1 P. Wms. 680. 
 
 (s) Ward v. Gray, 26 Beav. 491 ; 
 Miller v. Huddlestone, 3 Mac. & G. 
 513. 
 
 (t) Burridge v. Bradyl, 1 P. Wms. 
 126 ; Davies v. Bush, 1 Yo. 341. 
 
 (m) Fielding v. Preston, 1 De G. & 
 J. 438. 
 
 {x) Mirehouse v. Scaife, 2 My. & 
 Cr. 695.
 
 ORDER OF ADMINISTRATION. 501 
 
 devise comprised only lands which the testator was pos- 
 sessed of at the date of his will, this could hardly be 
 doubted. But it was less clear when by the Wills Act {y) 
 a will was made, in the absence of a contrary intention 
 being manifest, to speak as from the death, and thus to 
 include in its operation after acquired property. After 
 considerable conflict of opinion, it was, however, decided 
 in Hensman v. Fryer (z) that a residuary devise was still 
 specific ; and this seems now to be well established (a). In 
 Hensman v. Fryer it was, indeed, further held that a 
 residuary devisee must contribute rateably with pecuniary 
 legatees to the payment of debts. This portion of the 
 decision could evidently only be made consistent with 
 the previous proposition by considering pecuniary and 
 specific legatees and specific devisees as on the same 
 footing. But this is opposed to a multitude of high 
 authorities ; and we accordingly find that the broad prin- 
 ciple of Hensman v. Fryer has in more recent cases been 
 applied without interference with the prior liability of 
 pecuniary legatees, residuary and other specific devises and 
 specific bequests being classed together next in order to 
 pecuniary legacies (&). 
 
 The expressions which suffice to constitute a specific 
 legacy are fully considered hereafter. 
 
 7. A widow's paraphernalia is liable (with the exception ^'^^^- 
 
 • i\ 11 1)11 1- p'lernalia. 
 
 01 her wearing apparel) to her husband s debts ; and it 
 would seem that this is its proper place in the order of 
 administration (c). Her claim is doubtless superior to that 
 of a pecuniary legatee (d), and upon principle she should 
 be preferred to specific legatees or devisees, who are at 
 the best but volunteers (e). At the same time there would 
 be no reason for entitling her to rank higher than an 
 appointee under a general power. 
 
 (V) 1 Vict. c. 26, s. 24. tins v. Colthurst, 1 Ch. D. 626 ; 
 
 (2) 3 Ch. 420. Farquharson v. Flayer, 3 Ch. D. 109. 
 
 (a) Gibbiti^ v. Ei/den, 7 Eq. 371 ; (c) Tipping v. T., 1 P. Wms. 73o. 
 Lancefield v. Iggulden, 10 Ch. 136. (d) Ibid. ; Boynton v. Parkhv/rst, 
 
 (b) Collins V. Lewis, 8 Eq. 708 ; 1 Bro. C. C. 576. 
 
 Dugdale v. D., 14 Eq. 235 ; Tom- (e) Tynt v. T., 2 P. Wms. 542
 
 502 ADMINISTRATION GENERALLY. 
 
 Property 8. Lastly, real or personal property over which the 
 appoin e . ^gg^-j^^^j. j^^g ^ general power of appointment, and over 
 which he has actually exercised that power by will in 
 favour of volunteers, is applicable (/). As the creditors 
 can only claim under the appointment, which is a volun- 
 tary act, they will have no claim unless the power is 
 actually exercised, since equity will not interfere to aid 
 the non-execution of a power in favour of volunteers (g). 
 It must be observed, however, that a residuary gift will, 
 under s. 27 of the Wills Act (h), operate as an appoint- 
 ment, unless a contrary intention appears. Property 
 appointed is equitable assets, and accordingly distributable 
 pro rata {%). 
 
 IV. Payment of Mortgage Debts. 
 
 It has been already remarked that these rules as to the 
 order of the liability of assets for debts are in some degree 
 varied when the question is respecting the payment of a 
 mortgage debt ; and for convenience sake this was 
 reserved for separate consideration. The law on this head 
 having been revolutionised by the statute known as Locke 
 King's Act (k), the inquiry naturally resolves itself into 
 two divisions — first, as to the law applicable to cases not 
 within that Act ; secondly, as to the effect of that Act and 
 of others which have amended, or rather added to it. 
 
 1. Before 17 cfc 18 Vict. c. 113. 
 
 Where an estate is incumbered with a mortgage, either 
 the incumbrance must have been created by the deceased 
 person, or the estate must have been already incumbered 
 when it came to his hands. The question by whom the 
 mortgage debt was incurred principally determined what 
 fund was prima facie liable to its payment. It will 
 facilitate the inquiry to consider the two cases separately. 
 
 (/) Fleming v. Buchanan, 3 De G. (h) 1 Vict. c. 26. 
 
 ]VL & G. 976 ; Hawthorn v. Shedden, (i) Pardo v. Bingham, 6 Eq. 485. 
 
 3 Sm. & G. 305. (A) 17 & 18 Vict. c. 113. 
 
 (g) Holms v. Coghill, 12 Ves. 206.
 
 PAYMENT OF MORTGAGE DEBTS. 503 
 
 (1.) Where the mortgage was the debt of the deceased. 
 
 In this case the general rule was the same with respect Personalty 
 to mortgage debts as to others ; the general personalty was fiaUe.^^ ^ 
 first to be resorted to. Whether the mortgaged estate 
 descended to the heir or was devised, the heir in the 
 former case and the devisee in the latter might require 
 the personal representative to discharge the mortgage, so 
 that the estate might be enjoyed si7ie one re. This was Presump- 
 the jjrimd facie presumption, and in order to avoid it, it rebutted. 
 was incumbent on the personal representative to show that 
 there was an intention on the part of the testator that the 
 mortgaged estate should bear its own burden (/). 
 
 Of course, in case of an intestacy, there were no means 
 at all of rebutting this presumption. Where there was a will 
 it required strong expressions to do so. The strongest case 
 for exoneration was naturally that in which the intention 
 was manifested by express words. This requires no 
 comment. It sufficed also if an intention was clearly 
 implied ; but the decisions show that the implication had 
 to be very clear. Thus a devise of the estate for payment 
 of debts generally, or a general charge of debts thereon, 
 did not suffice to exonerate the personalty (m). Even if 
 the devise contained the words "subject to the mortgage 
 or incumbrance thereon," these were considered as merely 
 descriptive, and not as showing an intention to throw the 
 debt primarily on the mortgaged estate (n). A devise of 
 the mortgaged land, however, charged with or on trust for 
 payment of the mortgage debt, was considered sufficient 
 to rebut the jprimd facie rule (o). The same was the 
 case where there was a devise to a person of an estate, 
 " he paying the mortgage thereon " (p). It will be observed 
 how nearly these cases come to an express declaration of 
 intention. Where a tenant for life with an absolute power 
 
 (I) Davies v. Bush, 4 BH. N. S. 386. 
 
 305. (o) Erans v. CocJceram, 1 Coll. 428. 
 
 (m) ffancox V. Abbetj, 11 Yes. 169, (j)) Lockhart v. Hardy, 9 Beav. 
 
 186. 379. 
 
 {n) Serle v. Si. Eloy, 2 P. Wins.
 
 504 ADMINISTRATION GENERALLY. 
 
 of appointment raised money under the power and 
 covenanted to pay it, it was held that the estate was 
 primarily liable, the inference being that he intended that 
 the real estate, which was not absolutely his own, should 
 pay the debt rather than his own personalty (q). 
 
 (2.) Where the mortgage was not the debt of the 
 deceased. 
 Mortgaged Where the mortgage was not the personal debt of the 
 primarily devisor or intestate, the general iiile was that the mort- 
 liable, gaged estate should itself be primarily liable to the charge ; 
 and this whether he acquired the estate already charged, 
 or the charge was effected for some other purpose than 
 for his benefit — for instance, to secure a portion or 
 jointure (r). 
 unless In order in such a case to reverse this rule, and throw 
 
 adopted by ^^® mortgage debt primarily on the personalty, it was 
 testator, incumbent on the heir or devisee to show that the devisor 
 or ancestor had adopted the debt as his own (s). If he had, 
 the ordinary rule applied. It was therefore a matter of 
 great importance, and it was often a matter of great diffi- 
 culty, to ascertain whether there had been an adoption of 
 the debt. It must suffice briefly to illustrate successively 
 what was and what was not considered to amount to an 
 adoption of the debt. 
 What In the following cases the debt was considered to have 
 
 to adoption been adopted, so that the personalty became primarily 
 of debt. liable : — Where the owner of property mortgaged by his 
 ancestor added thereto mortgages of his own, united them, 
 and made himself personally liable for the payment of the 
 aggregate sum (t) ; where the purchaser of an equity of 
 redemption entered into a covenant directly with the miort- 
 gagee to pay him the debt, and there was a new proviso 
 for redemption on repayment (u) ; where a person bought 
 
 iq) Jenkinson v. Ilarcourt, Kay, (s) Scott v. Beecher, 5 Madd. 96. 
 
 688. (t) Townscnd v. Mostyn, 26 Beav, 
 
 (r) Vandeleur v. F., 3 CI. & F. 72. 
 82; 9 Bli. N. S. 157 ; Cmentryv.O., (n) Oxford v. Rodney, 14 Ves, 
 
 2 P. Wms. 222 ; 1 Str. 596. 417.
 
 PAYMENT OF MORTGAGE DEBTS. 505 
 
 an estate, and to secure the purchase money gave a charge 
 on the estate and covenanted to pay it (x). 
 
 In the following cases it was considered that there was What not. 
 no adoption of the debt : — Where the deceased obtained a 
 small further advance and gave an additional security for 
 the whole sum due (y) ; where he entered into a covenant 
 to pay a higher rate of interest (z) ; where he obtained 
 an additional advance to pay off arrears of interest on the 
 mortgage and the simple contract debts of the person from 
 whom he took the estate (a) ; where a man bought subject 
 to a mortgage, but had no contract or communication with 
 the mortgagee, and showed no intention to transfer the 
 debt from the estate to himself, beyond merely giving a 
 necessary indemnity against the debt to the vendor (6). 
 Nor was a charge of debts on his estate by an heir or 
 devisee an adoption of the mortgage debt of the ancestor 
 or devisor (c). 
 
 When a mortgaged estate came into the hands of a person 
 who was at once the executor and residuary legatee of the 
 mortgagor and the devisee of the mortgaged estate, upon 
 his death, without having indicated a contrary intention, 
 the mortgage debt was held to be a primary charge upon the 
 real estate (d). The fact that the mortgage debt was not 
 paid off when it might have been, was deemed to indicate 
 an election to continue the mortgage as a cliarge on the 
 real estate (e). But where under an intestacy the same 
 person was both heir and next of kin of the mortgagor, 
 and then himself died intestate without having adminis- 
 tered to the estate, his personalty was held to be liable to 
 the debt in exoneration of the mortgaged property (/). 
 The distinction was that there havino^ been no adminis- 
 
 (x) Billinghurst v. Walker, 2 132. 
 
 Bro. C. C. 608. (c) Lmoson v. L., 3 Bro. P. C. 
 
 iy) Ancaster W.Mayer, 1 Bro. C. C. Towl. ed. 424. 
 
 454. (d) Scott V. Beecher, sup. 
 
 (z) Shaftov. S., 1 Cox, 207. (c) Sioainsmi v. S., 6 De G. M. & 
 
 {a) TankerviUe v. Fawcett, 1 Cox, G. 648. 
 
 237. (/) Bond v. England, 2 K. & J. 
 
 (b) Woods V. Huntingford, 3 Ves. 44.
 
 ADMINISTRATION GENERALLY. 
 
 tration of the mortgagor's property, the personalty 
 descended liable to the debt ; and there was no ground for 
 presuming an election to exempt it at the expense of the 
 realty. 
 
 2. The effect of Lode Kings Act (g). 
 By this statute it is enacted that, " When any person 
 shall, after the passing of the Act, die seised of or entitled 
 to any estate or interest in any land or other heredita- 
 ments which shall at the time of his death be charged 
 with the payment of any sum or sums of money by way of 
 mortgage, and such person shall not by his will or deed or 
 other document have signified any other or contrary inten- 
 tion, the heir or devisee to whom such land or heredita- 
 ments shall descend or be devised shall not be entitled to 
 have the mortgaged debt discharged or satisfied out of the 
 personal estate or any other real estate of such person ; 
 but the laud or hereditaments so charged shall as between 
 the different persons claiming through or under the 
 deceased person be primarily liable to the payment of all 
 mortgage debts with which the same shall be charged, 
 every part thereof according to its value bearing a propor- 
 tionate part of the mortgage debts charged on the whole 
 thereof: provided alwaj^s that nothing herein contained 
 shall affect or diminish any right of the mortgagee on such 
 lands or hereditaments to obtain full payment or satisfac- 
 tion of his mortgage debt either out of the personal estate 
 of the person so dying as aforesaid or otherwise : provided 
 also that nothing herein contained shall affect the rights of 
 any person claiming under or by virtue of any will, deed, or 
 document already made or to be made before the 1st day 
 of January, 1855 " (h). 
 Limits of (1) It is to be observed with respect to this statute, first 
 tion. that it only applies to the administration of the estates of 
 
 persons dying on or after the 1st of January, 1855. 
 
 (2.) Secondly, that it comprehends mortgages of free- 
 
 {[/) 17 & 18 Vict. c. 113. {/,) .s. 1.
 
 PAYMENT OF MORTGAGE DEBTS. 507 
 
 holds and copyholds (i), but not mortgages of leaseholds, 
 these not being hereditaments (k). Of course it does not 
 affect mortgages of other personalty. 
 
 (3.) It only applies to cases in which there is a defi- 
 nite or specific charge on a specified estate (I), and it was 
 held not to apply to a vendor's lien (m). 
 
 (4.) It applies to equitable as well as to legal mort- 
 gages (n). 
 
 (5.) It applies not only as between the real and personal 
 representatives of the deceased, but also in favour of the 
 Crown claiming the personalty for want of next of kin (o). 
 
 It will be seen that the general effect of the statute is to What 
 
 ,1 . ^ ,, . , . lt p ^ • -1 amounts to 
 
 reverse the prima jacie rule as to the fund primarily contrary 
 liable. Before, the personalty was first applied, unless an intention, 
 intention to exonerate it was manifest. Since, the mort- 
 gaged estate is first applied, unless a contrary or other 
 intention is manifest. There has been much dispute as to 
 what under the Act would suffice to manifest a contrary 
 intention. In Woolstencroft v. W. (p) it was said by Lord 
 Campbell that " the same rule should be observed with 
 respect to exempting the mortgaged land from payment of 
 the mortgage money as was before observed with respect 
 to exempting the personal estate." That was to say " that 
 as it was before necessary to show an intention not only to 
 charge the realty, but also to exonerate the personalty, so 
 under the statute it would be necessary to show the reverse 
 intention in both respects ; not only to charge the per- 
 sonalty, but also to exonerate the mortgaged estate." This 
 was dissented from in Eno v, Tathavi (q), where it was 
 held that a direction to pay the debt out of another 
 fund was sufficient to discharge the mortgaged estate. 
 Mere general directions for the payment of debts were not 
 
 (i) Piper v. P., 1 J. & H. 91. (n) Pembroke v. Friend, 1 J. &. H. 
 
 (k) Solomon v. S., 10 Jur. N. S. 132. 
 331 ; Bill V. Wormslei/, 4 Ch. D. 665. (o) Dacre v. Patrickson, 1 Dr. & 
 
 (I) Hepworth v. HiU, 30 Beav. Sm. 186. 
 476. {p) 2 De G. F. & J. 
 
 (in) Hood V. ffood, 6 W. R. 747. iq) 11 W. R. 475 ; 4 Giff. 181.
 
 508 ADMINISTRATION GENERALLY. 
 
 considered sufficient (7") ; but where the personal estate 
 was bequeathed upon trust to pay (s), or subject to the 
 payment of debts (t), the mortgaged estate was held to be 
 exonerated. 
 
 3. The Arnenrhnent Acts (u). 
 30 & 31 In order to extend the operation of Locke King's Act, 
 
 Vict. c. 69, , ,1- 1 ■ 1 1 T • . •. 
 
 8. 1. and to set at rest the disputes which had arisen as to its 
 
 construction, the statute 30 & 31 Vict. c. 69, was passed, 
 enacting, first, that " In the construction of the will of any 
 person who may die after the 31st day of December, 1867, 
 a o-eneral direction that the debts or that all the debts of 
 the testator shall be paid out of his personal estate shall 
 not be deemed to be a declaration of an intention contrary 
 to or other than the rule established by the said Act (x), 
 unless such contrary or other intention shall be further 
 declared by words expressly or by necessary implication 
 referring to all or some of the testator's debts or debt 
 charged by way of mortgage on any part of his real 
 estate " (y). This, it will be observed, precisely adopts the 
 dictum in Woolstencroft v. W. (z), already quoted. 
 
 8. 2. Secondly, it extends the operation of the Act by enact- 
 
 ing that " in this and the previous Act the word mortgage 
 shall be deemed to extend to any lien for unpaid purchase 
 money upon any lands or hereditaments purchased by a 
 testator " (a). 
 
 Cases of It was soon observed that this statute made no mention 
 
 omitted. ^^ the case of intestac}^, and in such a case an heir-at-law 
 was held entitled to have a lien for unpaid purchase-money 
 discharged out of the personalty, so that he might take the 
 purchased estate free from incumbrance (6). Leaseholds, 
 moreover, were still under the old law. 
 
 40 & 41 At length, by 40 & 41 Vict. c. 34, both these defects 
 
 Vict. c. 34. 
 
 (r) Pevihroke v. Friend, 1 J. & H. Vict. c. 34. 
 
 132 ; Coote v. Lowndes, 10 Eq. 376. {x) 17 & 18 Vict. c. 113. 
 
 (s) Moore v. M., 1 De G. J. & S. (y) s. 1. 
 
 602. (.-) 2 De G. F. & J. 347. 
 
 [t] Mdlish V. Vallins, 2 J. & H. (a) s. 2. 
 
 194. (b) Harding v. H., 13 Eq. 493. 
 
 (u) 30 & 31 Vict. c. 69; 40 & 41
 
 MARSHALLING OF ASSETS. 
 
 were remedied. The previous statutes were made to apply 
 to cases of testacy and intestacy alike, and to land or 
 other hereditaments of whatever tenure. 
 
 Under the present law a direction that the personalty 
 shall be liable before the incumbered estate must in order 
 to be effectual unmistakably refer to or describe the 
 mortgage debt (c). 
 
 509 
 
 Y. The Marshalling of Assets. 
 
 1. As betiueen beneficiaries. 
 
 It was remarked, when speaking of the order of the 
 administration of assets as regards the priorities between 
 the respective classes of beneficiaries, that whatever their 
 claims mfer se, these did not in the least prejudice a 
 creditor's rights and remedies as against any portion of 
 the assets of the deceased. But it is clear that the order 
 of administration would be interfered with if a creditor 
 chose to resort to the assets in an order different from 
 that which the law prescribes as between the beneficiaries. 
 If, for instance, the creditor sought to recover his debt by 
 an execution against devised lands, instead of by a personal 
 judgment against the executor, the effect, unless counter- 
 acted by some means, would be to reduce the benefit con- > 
 ferred upon a specific devisee, and to increase that of the 
 residuary legatee, whereas the law of administration dis- 
 tinctly prefers the former to the latter. 
 
 This tendency is counteracted by the application of the Principle 
 principle known as marshalling. The principle, as laid g^a^g. 
 down in the leading case of 
 
 AliDRICH V. COOPER 
 
 [8 Ves. 382 ; 2 W. & T. L. C. 80], 
 
 is that if one person has two funds to which he may resort 
 for the satisfaction of his demands, he shall not by his 
 
 (c) Nelson v. Page, 7 Eq 25 ; v. Smyth, 17 Eq. 153. 
 Lewis V. L., 13 Eq. 219 ; SackviUe
 
 510 
 
 ADMINISTRATION GENERALLY. 
 
 Marshal- 
 ling for 
 parapher- 
 nalia. 
 
 For 
 
 specific 
 legatees 
 
 election disappoint another person who has only one fund. 
 If, therefore, he chooses to resort to the only fund upon 
 which the other has a claim, that othei- is allowed to stand 
 in his place pro tanio against the fund to which otherwise 
 he could not have resorted. 
 
 In the case we have put the creditor has an option of 
 two, or it may be several different funds, out of either or 
 any of which he may recover his debt. The beneficiaries 
 have each only his own particular fund available to him, 
 the heir the descended land, a specific legatee the property 
 specifically bequeathed, and so on. To restore, then, the 
 order of administration which the creditor's election has 
 disturbed, the law permits any beneficiary who is disap- 
 pointed by the creditor's actions to stand in the creditor's 
 place as against any fund which is in the order of adminis- 
 tration liable before his own. 
 
 It is not necessary, even if it be possible, to illustrate 
 from cases all the possible forms of marshalling between 
 beneficiaries which this broad principle would authorise. 
 A few instances will serve as well as more. 
 
 We have seen that one of the last funds resorted to for 
 the payment of debts in the order of administration is the 
 paraphernalia of the widow. If the place ascribed to it 
 in the last section be correct, it would follow that, with 
 the exception of an appointee under a general power, the 
 widow might marshal the assets as against all the other 
 beneficiaries ; in other words, if a creditor deprived her of 
 her paraphernalia, she could claim to stand in his place to 
 the extent of its value as against all the specific devisees 
 and legatees, and d fortiori against others of earlier 
 liability, such as the heir. We find instances in which she 
 has successfully claimed to marshal against general pecu- 
 niary and even specific legatees {cl). 
 
 Again, specific legatees and devisees, who stand on an 
 equal footing at the head of all the beneficiaries claiming 
 
 (d) Tippinri V. T., 1 P. Wms. 730; 
 Boynton v. Parkhurst, 1 Bro. C. C. 
 
 .^76 ; Tynt v. 
 Snell, 289. 
 
 T., 2 P. Wms. 542
 
 MARSHALLING OF ASSETS. 511 
 
 out of the testator's property, are entitled to marshal all and 
 the assets real or personal not specifically bequeathed or 
 devised. If the creditor enforces a remedy at their ex- 
 pense, they can stand in his place as against every fund 
 antecedently liable. The cases above cited to establish 
 their position in the order of administration, apply equally 
 here. As between themselves specific legatees ana devisees 
 (including, as we have shown, residuary devisees) have no 
 right to marshal, their liabilities being equal (e). 
 
 Pecuniary legatees, again, may marshal against lands For pecu- 
 devised subject to debts (/) ; d fortiori against lands de- {|,g^tgeg_ 
 scended to the heir {g). 
 
 Similarly a devisee of lands charged with debts may For 
 marshal against lands descended (/<-), lands devised on jands 
 trust for sale for payment of debts, and the general personal charged, 
 estate (^); while the heir can only marshal as against the 
 two last named funds (k), and devisee of lands devised on 
 trust for sale to pay debts only against the general per- 
 sonalty. 
 
 The operation of the principle as between beneficiaries 
 may thus be completely shown in tabular form. The 
 beneficiary named in the left hand column may marshal 
 against the one named opposite to him in the right hand 
 column and all beneath that one. 
 
 It does not, indeed, seem to have been decided that an 
 appointee can mar.shal against the paraphernalia, and it 
 may be considered doubtful whether they should not be 
 placed on an equal footing, neither having a right to call 
 upon the other. They have been inserted here rather 
 for the sake of completing the illustration than as an 
 expression of opinion on a point which will so rarely 
 arise. 
 
 (e) Haslewood v. Pope, 3 P. Wms. Gallon v. Hancock, 2 Atk. 424. 
 
 324 ; Emuss v. Smith, 2 De G. & (h) Harmood v. Oglander, 8 Ves. 
 
 Sm. 722. 106. 
 
 (/) Richard v. Barrett, 3 K. & J. {i) Ihkl. 
 
 289. {k) llanhy v. Roberts, Amb. 128. 
 
 {g) Sproide v. Prior, 8 Sim. 189
 
 512 
 
 ADMINISTRATION GENERALLY. 
 
 Marshal- 
 ling as 
 between 
 bene- 
 ficiaries 
 them- 
 selves. 
 
 An appointee under 
 a general power 
 
 the widow 
 
 a specific legatee or 
 
 devisee 
 a pecuniary legatee 
 
 When not 
 applied. 
 
 a devisee of 
 
 charged 
 the heir 
 
 lands 
 
 a devisee of lands de- 
 vised to pay debts 
 
 may marshal against 
 
 the widow's parapher- 
 nalia 
 against specific legatees and de- 
 visees 
 
 „ a pecuniary legatee 
 „ adevisee of lands charged 
 with debts 
 
 „ the heir 
 
 „ a devisee of lands de- 
 vised to pay debts 
 
 „ the general personalty. 
 
 Not only is the doctrine of marshalling applied as be- 
 tween beneficiaries when one or more of them has or have 
 been disappointed by the election of a creditor ; it is also 
 utilised as between the beneficiaries themselves. 
 
 Thus if a testator charges some legacies on real estate, 
 but not others, and the personal estate proves insufficient 
 to pay' them all, the legacies charged on the real estate 
 will be thrown thereon in order to leave the personalty 
 for the payment of the other legacies. Or if the privileged 
 legatees choose to exhaust the personalty, the others may 
 pro tanto stand in their place as against the real estate 
 charged (I). The principle is clearly the same as in the 
 previous case, the legatees whose legacies are charged on 
 land having two funds at their disposal, the other legatees 
 only one. 
 
 The doctrine of marshalling, however, will not be em- 
 ployed so as to alter the effect of the rules for the construc- 
 tion of legacies. Thus we shall see when classifying and 
 describing the different species of legacies, that legacies 
 charged on land are interpretated by the rules of common 
 
 [1] Hanhy v. Roberts, Amb. 127 ; Bonner v. R, 13 Ves. 379.
 
 MARSHALLING ASSETS. 513 
 
 law, and accordingly they fail altogether if the legatee 
 dies before they are actually paid, while legacies not so 
 charged are interpreted on the principles of ecclesiastical 
 law which considers them to vest on the death of the tes- 
 tator, and so to be transmissible to the legatee's repre- 
 sentatives if he dies before payment. If, then, the legatee 
 of a legacy charged on land dies before payment, the Court 
 will not by means of the doctrine of marshalling throw 
 this legacy on the personal estate so as to cause it to vest 
 for the benefit of the legatee's representatives (m). 
 2. Alarshalling between creditors. 
 
 Questions of marshalling formerly arose very frequently As be- 
 between creditors. As long as simple contract creditors creditors 
 had no claim upon real assets unless charged with debts, °"^y- 
 equity compelled specialty creditors, who could resort to 
 these assets, to seek their remedy thereout, so as to leave 
 the personal assets for the creditors by simple contract ; or 
 if the specialty creditors exhausted the personalty the 
 simple contract creditors were suffered to stand in their 
 place against the real assets (n) ; but only to the extent to 
 which the personalty had been applied in payment of the 
 specialty debts. They were not entitled to have a larger 
 fund than they had originally (o). These forms of mar- 
 shalling are, however, no longer necessary. Neither can 
 any question now arise as to marshalling between secured 
 and unsecured creditors of any class, the rules of adminis- 
 tration being now, as we have seen, regulated by those of 
 bankruptcy. 
 
 3. Marshalling generally. 
 
 It is necessary before dismissing the subject of marshal- Limits of 
 ling to guard against a too comprehensive interpretation cipii'^"^' 
 of the principle. Thus it does not apply as between 
 creditors of different persons. If a person has a demand 
 against A. and B. jointly and severally, a creditor of B. 
 alone cannot compel the former creditor to apply to A. 
 
 {m) Prowse v. Ahinrjdon, 1 Atk. (w) Sagitary v. Hijcle, 1 Vern. 45.5. 
 
 482 ; Pearce v. Loman, 3 Ves. 1.35. (o) Cradock v. Piper, 15 Sim. 301. 
 
 L L
 
 5J4 ADMINISTRATION GENERALLY. 
 
 alone so as to leave the property of B. free for his sepa- 
 rate debts, unless at least there is some equity between A. 
 and B. themselves which would entitle B. himself to a 
 remedy against A. {p). 
 
 Again, there must be not only two claimants from the 
 same person, but one of them must have two funds belong- 
 ing to the same person to which he can resort. Thus a 
 legatee in a will of a tenant in tail of lo.nd could not throw 
 judgment creditors exclusively on those lands in exonera- 
 tion of the general assets {q). 
 Marshal- Again, we have elsewhere seen that the Court will not 
 applied for marshal assets in favour of charities. Thus if real and 
 chanties, personal estate, including chattels real, are given on trust 
 to sell for the payment of debts and legacies, and the 
 residue is bequeathed to a charity, the debts and ordinary 
 legacies will not be thrown on the proceeds of land so as 
 to leave the pure personalty for the charity (s). The same 
 rule applies in the case of a simple pecuniary legacy {t). 
 But this rule does not in the least prevent the testator 
 from himself producing the effect of marshalling by direct- 
 ing the payment of his charitable legacies to he made out 
 of pure personalty (u), and such a direction will be carried 
 into effect by allowing, if necessary, the charities to stand 
 against realty in the place of creditors who have exhausted 
 the pure personalty (x). 
 
 VI. Marshalling Securities. 
 
 Marshal- _ The doctrine of marshalling is not confined to the ad- 
 ties. ^°^" ' ministration of assets, and though not strictly d propos to 
 the present subject, this is a convenient place in which to 
 refer to its application as between the creditors of living 
 
 ip) Exp. Kendall, 17 Ves. 520. Chm-y v. 3Iott, 1 My. & Cr. 123. 
 
 (q) Dovcjlas V. Cooksey, 2 I. R.. Eq. (u) Robinson v. Geldard, 3 Mac. & 
 
 311 ; see also In re International &c. G. 735. 
 Sac, 2 Ch. D. 476. (x) Att.-Gen. v. Mountmorris, 1 
 
 (s) Mogg V. Hodrjes, 2 Ves. sr. 52. Dick. 379. 
 
 (t) Ridges v. Morrison, 1 Cox, 180;
 
 MARSHALLING SECURITIES. 515 
 
 persons. UiDon the same principle that where one person 
 has two funds to resort to, aud another has only one, the 
 former shall not disappoint the latter by depriving him of 
 his only i-esonrce, it has been laid down that if a person 
 who has two real estates mortrao^es both to one mort- 
 gagee, and afterwards only one estate to a second mort- 
 gagee, the Court will direct the first to take his satisfac- 
 tion in the first place out of that estate which is not in 
 mortg'aofe to the second morty;aojee, so as to leave the second 
 estate, or as much of it as is not required to complete the 
 satisfaction of the first, for the second mortgagee (?/) ; and 
 it is immaterial whether the second mortgagee has or has 
 not notice of the first mortgage {2). So if one of the 
 estates is subject to a portion, the person entitled to the 
 portion may require the mortgagee to resort to the other 
 estate, or if he does not, may stand in his place against 
 it (c/,) ; and the principle has been applied even in favour 
 of a voluntary settlement (b). 
 
 Securities will not, however, be marshalled to the pre- Not to the 
 judice of third parties. For instance, if there is first a of*^third'^ 
 mortgage of A. and B., and then a mortgage of B. only, persons, 
 and then another mortgage of A. and B. to a third mortgagee 
 without notice of the second mortgage, the securities will 
 not be marshalled against the last mortgagee (c). Secue, 
 if he had notice at the time of his advance (d). 
 
 The principle is applied also in Admiralty cases — for in- 
 stance, where one person has a bond on the ship, freight, 
 and cargo, and another only on the ship and freight, the 
 former will be required to resort primarily to the cargo, or 
 else the latter will be allowed to stand in his place 
 ■against it (e). 
 
 (//) Lanoy v. Athol, 2 Atk. 446. {h) Hales v. Cox, 32 Beav. 118. 
 
 (r.) Hughes v. Williams, 3 Mac. & (c) Barnes v. Racster, 1 Y. & C. 
 
 G. 690 ; ^Tidd v. Lister, 10 Ha. 157 ; Ch. 401. 
 3 De G. M. & G. 857. (d) Re Moicers Trust, 8 Eq. 110. 
 
 (a) Ranclifc v. Parkyns, 6 Dow. (c) The Trident, 1 W. Rob. 29 ; 
 
 216. " The Aral,, 5 Jur. N. S. 417. 
 
 LL 2
 
 516 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Section II. — Matters relative to Administration. 
 
 I. Legacies. 
 
 1. Specific Legacies. 
 
 (1.) Effect of Wills' Act (1 Vict. 26). 
 (2.) What constitutes a Specific Legacy. 
 (3.) Generally. 
 (4.) Ademption. 
 
 2. Deimonstrative Legacies. 
 
 3. Time of Payment and Interest. 
 II. Donationes Mortis Causa. 
 
 1. Conditions of. 
 
 2. Place in Adrifiinistration. 
 
 I. Legacies. 
 
 Under the head of Administration of Assets, it was 
 necessary to classify the different species of beneficial 
 interests which might be bestowed by a testator. From 
 this classification, we are led to a further inquiry respect- 
 ing the different modes in which legacies may be bestowed , 
 in order to ascertain the particular characteristics of the 
 several species. Questions of this nature continually arise 
 on the construction of wills for the purposes of adminis- 
 tration, and it is therefore advisable to review the con- 
 sequences of the leading distinctions between the various 
 forms of legacies, notwithstanding that it is a matter which 
 would strictly come under the head of conveyancing rather 
 than that of equitable jurisprudence. 
 Legacies Legracies are either general, demonstrative, or specific. 
 
 classified, ° . ° . ■> r 
 
 defined, -^ general legacy is one which does not relate to any 
 
 individual thing, or sum of money, as distinct from other 
 things of the same kind or other monies : for instance, a 
 bequest of "a horse," of one thousand pounds, or one 
 thousand pounds stock. Such legacies are referred to in 
 
 -
 
 LEGACIES. 517 
 
 the Wills' Act (/) as "bequests of personal property 
 described in a general manner." 
 
 A demonstrative legacy is one in which together with 
 words of general description, such as would create a general 
 legacy, are used additional words pointing out a particular 
 fund out of which it is to be satisfied : for instance, a bequest 
 of " one thousand pounds out of my East India Stock." 
 
 A specific legacy is a bequest of a particular thing or 
 sum of money as distinguished from all others of its kind 
 — for instance, a bequest of " my horse Dobbin/' " the five 
 hundred pounds contained in my safe/' or " the debt owing 
 to me by B." 
 
 These distinctions are of areat importance. As we have ^^^ com- 
 
 . pared. 
 
 seen, in the administration of assets the order of the appli- 
 cation of a legacy depends upon whether it is considered 
 to be general or specific ; so that upon the construction 
 put upon it in this respect, the question as to whether the 
 legatee shall enjoy it or not may wholly rest. In this 
 instance the position of a specific legatee is more 
 advantageous than that of a person whose legacy is 
 general. But in another respect the contrary is the case. 
 Thus if after a testator has given a specific legacy, the 
 thing specifically given ceases to exist, or ceases to belong 
 to the testator, the legacy is considered to be adeemed ; 
 the legatee entirely loses the benefit of it, and cannot 
 claim compensation out of the general estate. We shall 
 presently inquire more precisely what will suffice to effect 
 an ademption. A general legacy, on the contrary, is not 
 liable to ademption. It is payable out of any and every 
 part of the assets not required for payment of debts, and 
 not specifically disposed of. 
 1. Specific legacies. 
 
 (1.) Before proceeding to consider in detail the different Before the 
 . . . Wills' Act 
 
 kinds of legacies, it is necessary to point out that the 
 
 character of specific legacies has to some extent been 
 modified by the Wills' Act {(j). Previously to that enact- 
 (/) s. 27. {o) 1 Vict. c. 26.
 
 518 MATTERS RELATIVE TO ADMINISTRATION. 
 
 merit, a will was deemed to speak as far as concerned the 
 property to which it related as from the time at which it 
 was made. When, therefore, a testator made use of such 
 an expression as " my stock," or " my horses at B.," there 
 could be little doubt as to what his words referred to, and 
 such legacies were then always considered as specific (h). 
 ■^v5"^A* °* S^t ^y section 24 of the above statute every will is to 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." 
 Now, therefore, when the same expressions are used, in 
 order to treat them as specific we must consider the tes- 
 tator's intention to have referred to a future state of things. 
 On the ground that this was not an admissible supposi- 
 tion, it was held by some judges that some stronger indi- 
 cation than the mere use of a personal pronoun was re- 
 quired under the new law to impress the legacy with a 
 specific character (i). On the contrary, however, it has 
 been pointed out that previous to the Wills' Act, it was 
 open to a testator to make his legacy act specifically as 
 from his death by means of such an expression as " all 
 the furniture which I shall be possessed of at my death," 
 and that the effect of the Act has been to import such a 
 clause into all wills. It has been held by high authority that 
 there is nothing unreasonable in this, and it may be con- 
 sidered as established that the same same words will suffice 
 now as did formerly, to effect a specific legacy (k). It is 
 true that these decisions confer upon the term specific 
 legacy a somewhat broader meaning than it formerly had. 
 Formerly a legacy was, in the absence of express words 
 postponing its application until the time of death, only 
 specific when it necessarily operated, if at all, upon some 
 definite and certain object, and it was liable to be adeemed 
 by any alienation of that object, or any substitution of 
 another for it, subsequent to the date of the will. Now 
 
 (//) Kirii/ V. Potter, 4 Ves. 748. {k) Lamjdale v. Briggs, 8 De G. 
 
 (i) Goodiad v. Burnet, 1 K. «& J. M. & G. 391 ; Bothamky v. Sherson, 
 341. 20 Eq. 304.
 
 LEGACIES. 510 
 
 the general rule is the other way. Unless there is some 
 indication of intention that the legacy shall apply only to 
 an object belonging to the testator at the time of the will, 
 the legacy becomes, in fact, rather generic than specific. 
 When it comes to be carried into effect, it may happen to 
 apply to some object which was not at all within the con- 
 templation of the testator at the time that he made his 
 will, but which was subsequently acquired by him, either 
 in addition to or in substitution for objects of the same 
 genus which he had at the time of the will. Though 
 such a legacy may, of course, fail owing to there being no 
 property answering to it at the time of the death, it is not 
 liable to ademption in the same manner in which specific 
 legacies formerly were, since from the time at which it is 
 applied, there can be no dealing with the property which 
 will affect it. The cases cited, however, show that this 
 alteration of the character of the legacies does not prevent 
 legacies which were formerly considered specific from being 
 still treated as such. 
 
 But there is a distinction to be observed between such 
 generic legacies and a legacy which was manifestly in- 
 tended to refer to a distinct and particular object. If a 
 testator uses such words as " my stock," or " my shares," or 
 " my horses at B.," he may well be supposed to have meant 
 such stock, shares, or horses as he should be possessed of 
 at his death. But if he bequeaths a distinct object, such 
 as his " horse Dobbin," or his " shares in the A. Company," 
 his intention clearly refers not to a genus, but to a certain 
 particular thing ; and, if after making such a bequest, he 
 parts with that thing, the mere fact that before his death 
 he acquires another of the same kind which happens to be 
 called by the same name will not prevent the legacy from 
 being adeemed by the alienation. In such a case there is 
 considered to be a sufficient indication of contrary inten- 
 tion to prevent section 24 of the Wills' Act from saving 
 the legacy {I). 
 
 (1) Re Gibson, 2 E(i. 669.
 
 520 MATTERS RELATIVE TO ADMINISTRATION. 
 
 (2.) What constitutes a specific legacy. 
 In considering what expressions are considered to give 
 rise to a specijEic legacy, it will be convenient to distinguish 
 between the different classes of objects which may be 
 comprised in a specific bequest. 
 Articles of Specific legacies of valuable articles (in which money is 
 value. ^^^ -^^^^ included) require but little exposition. There 
 can be rarely any question about a clause which bequeaths 
 a horse, or a piece of furniture, or jewellery definitely to a 
 given person. Such a bequest may evidently be for life 
 only or absolutely. It will, however, be construed as 
 absolute, unless expressly limited to a life interest. In 
 the case of things qum usu consumuntur, the nature of 
 the gift generally prevents a gift over from following a life 
 interest, and even if it be expressed to be for life, or for a 
 limited period, it will be construed as absolute (w). When 
 such articles constitute the testator's stock in trade, the 
 case is different ; here there is no inconsistency in direct- 
 ing successive interests, and such a direction will be 
 carried into effect (n). The distinction must also be 
 observed between a specific and a residuary bequest of such 
 things. In the latter case, if there are successive interests, 
 they will be protected by a sale of the articles and pay- 
 ment of the interest of the proceeds to the persons suc- 
 cessively entitled (o). It has, moreover, been held that 
 where the same clause includes a bequest of particular 
 articles, and a gift of the residue, the whole clause will be 
 considered as residuary, and not as specific. Thus a gift 
 of " all my horses and other personal estate " is deemed 
 residuary (p) ; and so, also, where the particular expression 
 came last ; e. g., a gift of " all my personal property 
 together with all my furniture, &c." (q). 
 Money. A bequest of a sum of money in a certain bag (r), or 
 
 (m) Randall v. Russell, 3 Mer. (p) Fielding v. Preston, 1 De G. 
 
 195. & J. 438. 
 
 (n) Phillips V. Beal, 32 Beav. 25. (q) Fairer v. Park, 3 Ch. D. 309. 
 
 (o) Hoioe V. Ld. Dartmouth, 7 (r) Lawson v. Stitch, 1 Atk. 508. 
 Ves. 137, sup., p. 103.
 
 LEGACIES. 521 
 
 in the hands of a certain person (s), is specific. A bequest 
 even of " all my monies " has been so considered (t). But 
 a bequest of a sum of money followed by a direction as to 
 its application, e. g., " to purchase a ring," or " an annuity," 
 or " government securities," is general (u) ; as is also a 
 bequest of money " to be paid in cash " {x). 
 
 A debt due to the testator may be specifically be- Debts, 
 queathed ; and this may be effected either by a descrip- 
 tion of the sum owing ; e. g., a bequest of " the money due 
 on A.'s bond " (?/), or " the money now owing to me from 
 A." (z), or by a specific gift of the security itself, as of " my 
 note of £500 " (a). And the bequest may be specifically 
 made for life only, as well as absolutely (6). In the case, 
 again, of a bequest of part of a debt to one person, and 
 the " remainder,'' or " residue " to another, both legacies 
 are specific (c). 
 
 A bequest of stock, or government securities described Stock. 
 as " my stock," or " my securities " is specific, or (since the 
 Wills' Act), perhaps, more strictly speaking, generic in 
 character, but specific in effect {d). A legacy, also, of 
 so much, " part of my stock," has been considered as 
 specific (e). A bequest of a sum of money out of 
 stock is, on the contrary, demonstrative (/). If a 
 legacy is expressed in general terms to be of so much 
 stock, &c., instead of as so much money, it will not be 
 deemed specific merely because the testator happens to 
 have stock, &c., of a corresponding description, since his 
 intention might have been that his executor should pur- 
 
 (s) Hinton v. Priske, 1 P. Wms. (a) Drinkwater v. Falccmer, 2 Ves. 
 
 540. sr. 623. 
 
 {t) Manning v. Purcell, 2 Sm. (b) Ashburner v. Macguire, 2 Bro. 
 
 & G. 284 ; 7 De G. M. & G. C. C. 108. 
 
 55. (c) Ford v. Fleming, 2 P. Wms. 
 
 (m) Apreece v. A., 1 V. & B. 364 ; 469. 
 
 Hume V. Edioards, 3 Atk. 693 ; Gib- {d) Barton v. Cooke, 5 Ves. 461 ; 
 
 bons V. Hills, 1 Dick. 324. Bothamley v. Skersan, 20 Eq. 304. 
 
 (x) Richards v. R, 9 Pri. 226. (e) Kirby v. Potter, 4 Ves. 750. 
 
 (y) Davies v. Morgan, 1 Beav. (/) Ibid., Deaney. Teste, 6 Ves. 
 
 405. 146, 152. 
 
 (z) Ellis V. Walker, Amb. 309.
 
 •?•> 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Chattels 
 real. 
 
 chase such stocks out of his general personalty (g) ; but 
 where there was a bequest of named stock in general 
 terms, and coupled with it a direction for a sale of it, and 
 the testator possessed some of the stock named, it was 
 held that a specific bequest must have been intended (h). 
 
 A bequest of a lease, or of a rent out of a term of 
 years is specific (i). On the contrary, a gift not of an 
 annual, but of a gross sum, payable out of a term, or out 
 of real estate, is demonstrative (k). And, again, this must 
 be distinguished from a mere direction to pay a legacy out 
 of a particular fund or estate ; in this case the fund or land 
 alone is liable (/). There may, also, be a specific gift of 
 the proceeds of sale of land, whether freehold or lease- 
 hold (m). 
 
 (3.) General characteristics, 
 
 A gift of a specific legacy carries with it everything in- 
 cident to the subject-matter of the gift ; such, for instance 
 everything as bonuses declared after the testator's death upon shares 
 specifically bequeathed (7;-). Bonuses declared in his life- 
 time, but payable after his death, do not, however, go to 
 the legatee (o). Dividends, also, declared after his death, 
 are considered as income and go to the legatee, notwith- 
 standing that they may have been earned in the testator's 
 lifetime {p). 
 
 Conversely, liabilities attaching to the subject-matter of 
 the gift, if arising after the testator's death, are payable 
 by the specific legatee (q). But payments necessary to 
 complete the testator's interest in the subject-matter of 
 the u'ift must be distinguished from such Uabilities. Such 
 
 Specific 
 
 legacy 
 
 carries 
 
 it, 
 benefits 
 
 and 
 lialjilities, 
 
 {(j) Partridge v. P., ca. t. Talb. 463 ; Walker v. Laxton, 1 Y. & J. 
 
 226 ; Purse v. Snaplin, 1 Atk. 557. 
 
 4] 5. (m) Maclareii v. Stainton, 3 De G. 
 
 (h) Asliton V. A., 3 P. Wms. F. & J. 202. 
 
 384. (0) Lock V. Vcnahles, 27 Beav. 
 
 (i) Long v. ShoH, 1 P. Wms. 598 ; De Gcndre v. Kent, 4 E([. 
 
 403. 283. 
 
 (k) Savile v. Blacket, 1 P. Wms. (p) Bates v. Mackinley, 31 Beav. 
 
 778. 280. 
 
 (I) Spvrimy v. Ghpin, 9 Ve.*. 483. (q) Adams v. Fennck, 26 Beav. 
 
 (/ii) Poije V. LcapingwtU, 18 Ves. 384.
 
 LEGACIES. 523 
 
 payments are payable out of the general personal 
 estate (r). 
 
 Sometimes a legacy which at first sight appears to be Legacies 
 residuary or general, may be shown to be really specific, general. 
 An instance of this is where a testator devises land upon 
 trust to sell for a certain sum, and after giving legacies 
 thereout, bequeaths the remainder of the money to 
 another legatee. In this case, a total definite sum being 
 named, the remainder is just as specific as any of 
 the specified parts which are first mentioned (s). It is 
 otherwise if the trust for sale is general, no definite sum 
 being named. Then, if certain sums are first given and 
 the residue afterwards bequeathed, the certain sums are 
 specific and the residue general (t). The distinction be- 
 tween the two classes of cases is, however, often very 
 fine (u). 
 
 When there is an apparently specific bequest, parol 
 evidence is admissible to show what property there is 
 answering to the description of it (x) ; and generally to 
 determine whether a legacy is general or specific (y). 
 
 (4.) Ademption of specific legacies. 
 
 In speaking of the ademption of specific legacies it is Two uses 
 necessary to distinguish between this matter and the ^ord^ 
 ademption of general legacies to children, &c., by portions " ademp- 
 or subsequent gifts given in satisfaction thereof during 
 the testator's lifetime. The term ademption is indeed 
 applied in both cases ; but that there is a marked dis- 
 tinction between the two is sufficiently obvious. In the 
 latter sense many general legacies are liable to ademption, 
 and the principle rests on the presumed intention of the 
 testator {z). In the case of the ademption of specific 
 legacies, on the contrary, the intention or animus adi- 
 mendi is immaterial («). 
 
 (r) Armstrong v. Burnet, 20 Beav. Re Jeffertfs Tr., 2 Eq. 68. 
 
 424. {x) Hurwood v. Griffith, 4 De G. 
 
 (s) P«//e V. Leajiingwell, sup. M. & G. 
 
 (t) Read v. Straiujnvaijs, 14 Beav. (//) Att-G. v. Grote, 2 R. & M. 690 
 
 139. (z) See Exp. Pye, 18 Ves. 140. 
 
 («) See Pdre v. P., 14 Beav. 197 ; («) Stanfcy v. Potta; 2 Cox, 182.
 
 524 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Non- The most conclusive form of the ademption of a specific 
 
 of subject legacy is where the tiling expressed to be specifically be- 
 matter. queathed ceases to be in existence before the testator's 
 death ; if, for instance a house specifically bequeathed has 
 been destroyed by fire, or a policy of assurance has been 
 suffered to lapse (6). In the former case, notwithstanding 
 that the house may have been insured, the specific bequest 
 will not operate upon the insurance money, which will fall 
 into the residuary estate (c). Similarly if a debt is spe- 
 cifically bequeathed, and is afterwards received by the 
 testator in his lifetime, the bequest is adeemed (d), and 
 this notwithstanding that the money when received is 
 again laid out in a similar manner, as for instance, when a 
 mortgage debt is paid off, and the money again invested 
 on mortgage (e). And it makes no difference whether the 
 debt is paid voluntarily or compulsorily (/). 
 Removal Ademption may, moreover, be occasioned by less con- 
 matter, elusive changes in the property than these. Thus a 
 specific legacy of goods described as being in a particular 
 place, will be adeemed by their removal to another place (g), 
 unless the removal is only temporary or accidental, as for 
 instance for purposes of repair, or by reason of a fire (h). 
 Removal is of no effect unless the words of the bequest 
 have evident reference to a given locality (i). 
 Change of Again, where stock which has been specifically be- 
 queathed has been subsequently sold out by the testator, 
 the bequest is thereby adeemed (k), and this will be the 
 case even if the money realised is again laid out in similar 
 stock (/). A mere change in the name or form of the 
 stock, for instance by a parliamentary conversion, will not, 
 
 (6) Stanley v. Pottei; 2 Cox, 182. (.7) Green v. Symonds, 1 Bro. C. C. 
 
 (c) Durham v. Friend, 5 De G. & 129, n. 
 
 Sm. 343. {/() Brooke v. Warwick, 2 De G. 
 
 (d) Rider v. Wager, 2 P. Wms. & Sm. 425 ; Chapman v. Bart, 1 
 329 ; Barker v. Rayner, 5 Madd. Ves. sr. 271 ; Raidinson v. R., 3 Ch. 
 208 ; 2 Russ, 122. D. 302. 
 
 (c) Gardner v. llatton, 6 Sim. 93. {i) Norris v. N., 2 Coll. 719. 
 
 (/) Ashhurnerw. Maajuire, 2 Bro. (k) Lee v. L., 27 L. J. Ch. 824. 
 
 C. C. 108 ; Staidey v. Potter, sup. (!) In re Gibson, 2 Eq. 669.
 
 LEGACIES. 
 
 525 
 
 however, cause an ademption (tii), nor will a transfer 
 thereof from trustees to the testator (n). 
 
 Ademption, moreover, will not be effected by any dealing 
 with the stock unknown to the testator or without his 
 authority (o). So if he becomes insane, the dealings of 
 others with his property will not as a rule be suffered 
 to affect bequests which he may have made (p). But a 
 sale of personalty by order of the Court in Lunacy 
 without any reservation of the rights of legatees, has 
 been held to effect an ademption of a specific bequest (q). 
 
 In considering all questions concerning ademption the 
 provisions of the Wills' Act already quoted must be re- 
 membered. In the instances here given the intention of 
 the testator to refer only to the property as it existed at 
 the time of the will, was sufficiently clear to prevent the 
 operation of the Act. When no such intention is expressed 
 or can be gathered from the circumstances of the case, the 
 will will, as we have seen, speak as from the death, and 
 then no ademption can take place. 
 
 2. Demonstrative legacies. 
 
 A demonstrative legacy so far resembles a specific legacy Charac- 
 that it will not abate with the general legacies until the *^^'^^*^<^^- 
 fimd out of which it is payable is exhausted ; it so far 
 resembles a general legacy that it will not be liable to 
 ademption by the alienation or non-existence of the pro- 
 perty indicated for its payment. It is considered that the 
 primary object is the gift of the legacy, the indication of 
 the particular fund being a matter subsidiary or directory, 
 and not of the essence of the gift {r). The testator may, 
 nevertheless, show such an intention that a legacy shall be 
 paid out of one fund only, as to effectually make its pay- 
 ment conditional upon the existence of that fund (s). 
 
 (hi) Partrid'je v. P., ca. t. Talb. {p) Taylor v. T., 10 Ha. 475. 
 
 226. (q) Jones v. Green, 5 Eq. 555. 
 
 (n) Dingwell v. Asl-eio, 1 Cox, 427. (r) Savile v. Placket, 1 P. Wms. 
 
 (o) Shaftesbury v. >S'., 2 Vern. 747, 777 ; Viclcers v. Pound, 6 H. L. 885. 
 
 748, n. 2 ; Basan v. Brandon, 8 Sim. (s) Coard v. Iloldamess, 22 Beav. 
 
 171. 391.
 
 526 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Legacies Attention mnst be called to some cases in which a legacy 
 apiLently apparently demonstrative is in effect specific. A beqnest 
 demon- ^f money out of stock, as of " £1000 out of my Three per 
 Cents." is demonstrative; but, as we have seen, a bequest 
 of " £1000 stock, part of my Three per Cent, stock '' is 
 deemed to be specific (t), and similarly a bequest of one 
 article or more out of a number of the same kind is 
 specific, and gives the legatee a right to select (u). 
 3. Time of 'payment of legacies, and interest. 
 There are also important distinctions between the dif- 
 ferent kinds of legacies as regards the time at which they 
 are payable, from which time interest runs thereon. 
 Specific Specific legacies are payable and interest runs thereon 
 
 egacies. f^^Q^a the death of the testator, from which time also, as 
 we have seen, dividends accrue to the legatee {x). The 
 case of a specific bequest of a reversionary interest is 
 evidently an exception, there being no claim then until 
 the reversion falls into possession. 
 General General legacies, on the contrary, are not, unless the 
 
 egacies. -^gf^^r^^^Qj. expressly fixes a time for their payment, payable 
 until the expiration of twelve months after his decease, and 
 accordingly as a rule they only carry interest from that 
 time {y) But the testator may by expressed intention 
 accelerate or postpone their payment {z\ and in th&se cases 
 interest is payable from the directed time of payment («). 
 Excep- There are some exceptions to this rule. Thus where a 
 
 cases. legacy is given in satisfaction for a debt, it is payable at 
 and carries interest from the death (6). And where a 
 parent, or person in loco parentis, bestows a legacy upon 
 an infant, the Court will generally give interest from the 
 death by way of maintenance (c). But where a separate 
 
 (t) Kirh) V. Potter, i Ves. 748. (z) Re Tinkler'' s Estate, 20 Eq. 456; 
 
 (m) Richards v. R., 9 Pri. 219 ; Loi-d v. L., 2 Ch. 782. 
 Jacques V. Chambers, 2 C'oll. 435. («) Lrmdesborough v. Romerville, 
 
 (x) Barrinqton v. Tristram, 6 Ves. 19 Beav. 295. 
 345 ; Bristow v. B., 5 Beav. 289. (b) Clark v. Seioell, 3 Atk. 99. 
 
 iy) Child V. Elsworth, 2 De G. M. (c) Beckford v. Tobin, 1 Ves. sr. 
 
 & G. 679 ; Wood v. Penoyre, 13 Ves. 310 ; Wilson v. Maddison, 2 Y. & C. 
 
 333. ' Ch. 372.
 
 LEGACIES. o27 
 
 fund for maintenance is provided the case is taken out of 
 the exception, and falls within the general rule (d), and so 
 where the child is adult (e). A legacy charged upon real 
 property is also payable at the testator's death, and from 
 that time interest runs (/); but not so where real property 
 is devised upon trust for conversion and payment of legacies 
 out of the proceeds ; in this case the general rule applies(fjf). 
 The distinction seems to be based on the general principle 
 elsewhere observed (p. 514), that whereas purely personal 
 legacies follow the rules of civil law, as expounded by the 
 ecclesiastical courts, legacies charged on land are treated 
 according to the doctrines of the common law. 
 
 A demonstrative legacy, as regards the time of payment Demon- 
 and the accrual of interest, resembles a general and not leo-ades. 
 a specific legacy (7i). 
 
 The rate of interest usually charged is four per cent. (?'), Rate of 
 and compound interest will not be paid unless directed by 
 the will (k), or there is a breach of trust by the executor (J). 
 
 II. Donationes Mortis Causa. 
 
 English equity has derived from the Roman law a mode Definition, 
 of disposition intermediate in character between a specific 
 legacy and a gift inter vivos, namely the donatio mortis 
 causa, and in doing so it has in the main also adopted the 
 principles by which these gifts were regulated by Roman 
 law. The purpose of a definition of the donatio mortis 
 causa is best served by stating the necessary conditions of 
 such a gift. In doing so we shall indicate its character 
 fully, by pointing out in what respects it resembles, and in 
 what it differs from a legacy on the one hand, and a gift 
 inter vivos on the other. 
 
 (d) Re Rouse's Estate, 9 Ha. 649. 210. 
 
 (e) Raven v. Waite, 1 Swanst. 553. (i) Wood v. Briant, 2 Atk. 523. 
 (/) Maxwell v. Wettenhatl, 2 P. {k) Arnold v. A., 2 My. & K. 365. 
 
 Wms. 26. {I) Rajihael v. Boehin, 11 Ves. 92 ; 
 
 (r/) Turner v. Buck, 18 Eq. 301. 13 ib. 590. 
 
 (/() Mullins V. Smith, 1 Dr. & S.
 
 528 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Must be 
 made in 
 view of 
 death. 
 
 Must be 
 complete 
 only at 
 death. 
 
 Contrast 
 in Roman 
 law. 
 
 Delivery 
 necessary. 
 
 1. Conditions of donatio mortis causa. 
 
 (1.) As in Roman law so in English, a donatio Tnortis 
 causa is only valid when made in near contemplation of 
 death {ni). It is not, it seems, necessary for the donor 
 absolutely to express the gift to be made in close expecta- 
 tion of death ; this may be presumed from the circumstances 
 of the case, if the donor is evidently and to his own know- 
 ledge near death {n). 
 
 This condition is evidently implied in the name itself, 
 and it distinguishes the donatio mortis causa from both a 
 legacy and a gift inter vivos. 
 
 (2.) The gift must be conditioned to take complete effect 
 only after the donor's death (o) ; but in this case, as before, 
 the condition need not be expressly declared. If the gift 
 is made in evident contemplation of death the law will 
 imply an intention that it is to be absolute only in the 
 event of death (^)). 
 
 There were two modes of donatio mortis causa recog- 
 nised at Rome ; in one, the subject of the gift was given on 
 condition that it should become the property of the donee 
 in the event of the donor's death ; in the other, the subject 
 of the gift became at once the property of the donee, but 
 on condition that he should return it to the donor in the 
 event of his recovery. English equity recognises only the 
 former of these modes, a gift under a suspensive condition. 
 Such a gift is in this respect analogous to a legacy, being 
 revocable during the donor's life, and is accordingly con- 
 trasted with a donatio inter vivos. 
 
 (3.) The gift must be completed by a delivery of the 
 subject-matter thereof (9). But in the application of this 
 rule, it must be observed that a clear constructive delivery 
 is deemed tantamount to actual delivery. Thus delivery 
 to an agent of the donee or to some one on his behalf will 
 
 (m) Inst. II., 7. 1 ; Duffield v. 
 £lwes, 1 Bli. N. S. 5.30 ; Edwards v. 
 Jones, 1 My. & Cr. 23.3. 
 
 (n) Miller v. M., 3 P. Wms. 356 ; 
 Lawson v. L., 1 P. Wms. 441. 
 
 (o) Edwards v. Jones, sup. 
 
 (p) Gardner v. Parker, 3 Madd. 
 184. 
 
 (q) Tate v. Hilbert, 2 Ves. jr. 120 ; 
 4 Bro. C. C. 286.
 
 DONATIONES MORTIS CAUSA. 029 
 
 suffice (-)■), So also will a delivery by an agent of the donor 
 at the donor's request ; but not a delivery by the donor to 
 his own agent(s). Again a delivery by symbol is equivalent 
 to an actual delivery ; thus, for instance, the delivery of the 
 key of a box with intent to give the contents is equivalent 
 to a delivery of its contents (t) ; but such a delivery must 
 be distinguished from that of the delivery of a key to a 
 person for some other purpose, as to a housekeeper, for the 
 purpose of safe custody (u). The case of negotiable instru- 
 ments, which are in some sense symbols of choses in action, 
 rests on a different principle, which will be presently con- 
 sidered. 
 
 In this respect a drmatio mortis causa is contrasted Property 
 both with a legacy and with a gift inter vivos, which may „£ being 
 be eiFected by deed without delivery. A peculiar effect 8'iven 
 
 . . . . . . mortii^ 
 
 of this condition, acting in connection with the equally causa. 
 essential condition that the gift is to take effect absolutely 
 only in case of death, has been to render some kinds of 
 property seemiugly incapable of being the subject of a 
 donatio mortis causa. A chose in action may, indeed, be 
 generally effectually given by the delivery of the means 
 of its enforcement ; thus a bond {v), a mortgage deed {x), 
 a promissory note payable to order though not indorsed {y), 
 and other similar instruments {z), may be transferred by 
 donatio mortis causa. But it has been considered that a Cheque, 
 donor's cheque cannot be validly so given, a cheque being 
 nothing more than an order for the delivery of a certain 
 sum of money, which order is revoked by the death of the 
 drawer. The argument would be that a cheque is not itself 
 a delivery of the mouey ; and that from its nature it cannot 
 be made conditional on death (a). On similar reasoning 
 
 (r) Moore v. Darton, 4 De G. & (x) Dvffield v. Elives, 1 Bli. N. S. 
 
 Sm. 517. 497. 
 
 (s) Farquharson v. Cave, 2 Coll. {y) Veal v. V., 27 Beav. 303. 
 
 356, 367. (2) Moore v. Darton, sup. ; Amis 
 
 {t) Jones V. Selhy, Prec. Ch. 300. v. Witt, 33 Beav. 619. 
 
 (m) Trimm£r v. Danby, 25 L. J. (a) Tate v. Hilbert, sup. ; Hewitt v. 
 
 Ch. 424. Kai/e, 6 Eq. 198 ; Be Beak's Estate, 
 
 (v) Snelgrove v. Bailey, 2 Atk. 214. 13 Eq. 489. 
 
 M M
 
 530 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Trust 
 created. 
 
 Impei-fect 
 dunationes 
 mm-tis 
 causa. 
 
 it has been held that a delivery of receipts for annuities (b), 
 or of railway scrip (c), will not effect a donatio mortis 
 causa. 
 
 Where a cheque given is in fact actually negotiated 
 before the death, the gift has been held to be complete 
 and effectual (d), but in that case it would seem that the 
 feature of revocability which is essential to donatioTies 
 Tnoiiis causa is wanting, and that, therefore, if such a gift 
 is sustainable at all it must be rather as a transaction inter 
 vivos than as one of the class we are now considering. 
 
 A donatio Tnortis causa may not only be given 
 absolutely, but may be made subject to a trust for a third 
 person (e), or coupled with a trust for some particular 
 purpose, or charged with a condition (/). 
 
 (4.) When speaking of voluntary gifts inter vivos {()), it 
 was pointed out that it was open to a donor to confer a 
 benefit either by a direct transfer of his property, or by the 
 creation of a trust in favour of the intended beneficiary, 
 and it was seen that an imperfect attempt to effect a 
 direct gift would not be assisted by considering it as a 
 declaration of trust. A similar principle applies to dona- 
 tiones mortis causa.. The donor may if he chooses bequeath 
 his property by a testamentary instrument, or he may in 
 most cases bestow it by a donatio mortis causa. If he 
 chooses to adopt the former method the law imposes on him 
 certain conditions, compliance with which is necessary to 
 the validity of the bequest. Thus there must be a written 
 instrument duly witnessed and in all respects conformable 
 to the Wills' Act {h). If, on the contrary, he elects to 
 make a donatio mortis causa, the Wills' Act indeed will 
 not affect him (i), but he must comply with the conditions 
 above laid down ; particularly, he must deliver the pro- 
 perty to the donee or to some one for him. But as in the 
 
 (6) Ward v. Turnei',2Yes. sr. 431. 
 (c) Moore v. M., 18 Eq. 474. 
 (c/) Rolls V. Pearce, 5 Ch. D. 730. 
 (e) Drvry v. Smith, 1 P. Wms. 40.5. 
 ( / ) Blount V. Barroiv, 4 Bro. C. C. 
 
 71 ; Hills V. H., 8 M. & W. 401. 
 
 (q) Svp. p. 51. 
 
 ('//) 1 Vict. c. 26. 
 
 (i) Moon' V. Barton, 4 De C. & S. 
 519.
 
 DOXATIOXES MORTIS CAUSA. 531 
 
 case of a gift inter vivos so in this case, his attempts to 
 bestow his property will be futile unless they amount to 
 one or other of these alternatives. An attempt to make a 
 donatio 'mortis causa which is defective from there being 
 no delivery of the property, will not be suffered to take 
 effect as a will. However clear the intention may be, and 
 whether expressed by parol or in writing, unless it complies 
 with the Wills' Act so as in fact to be an actual testa- 
 mentary instrument, it will not be enforced (k). On the 
 other hand, if the donor clearly intends to make a testa- 
 mentary gift, but omits the necessary formalities, his 
 intention will not be carried into effect by treating his 
 attempt as a donatio mortis causa, even though there 
 may have been an actual delivery (l). 
 
 It has, indeed, been sought to aid a donee by setting up 
 an instrument as a declaration of trust, which is clearly void 
 for informality as a will (m). But it seems clear both on 
 principle and on authority, that such an attempt should not 
 succeed. A written instrument expressing an intention 
 to confer a direct gift on another, is quite a distinct thing 
 from an instrument expressing an intention to become a 
 trustee for another. The two intentions are not by any 
 means the same, nor are they so closely allied that where 
 the former is expressed the latter may be implied. We 
 have seen this decidedly established as regards an instru- 
 ment purporting to confer a benefit inter vivos (n), and it 
 is difficult to see how the principle can be otherwise in the 
 case of donatio Quortis causa. The same reasoning has 
 in fact been applied in the latter instance, and aj^proved 
 by high authority (o). 
 
 Again, the same principle prevents an ineffectual attempt 
 to make a gift inter vivos from being supported as a valid 
 donatio mortis causa. The two things are quite distinct, 
 
 (k) Rijden v. Vallier, 2 Ves. sr. 475. 
 
 258 ; Tate v. Hilbcrt, 2 Ves. jr. 120. («) Sap. p. 51 ; Milroi/ v. Lord, 
 
 {I) Mitchell V. Smith, 12 W. R. 4 De G. F. & J. 264. 
 
 941. (o) Warriner v. W., 16 Eq. .310 ; 
 
 (m) Morrjan v. Mcdleson, 10 E(i. Richards v. Delhrid'je, 18 Eq. 11. 
 
 M u 2
 
 532 MATTERS RELATIVE TO ADMINISTRATION 
 
 and an intention to do the former by no means implies an 
 intention in the alternative to do the latter. On the con- 
 trary, it has been laid down that the former intention is 
 quite inconsistent with the latter (p). 
 2. Place in achninistration. 
 How far For the purposes of administration a donatio niiortis 
 rfe^cy °^ caitsa is treated in some respects as a legacy. It is true 
 that, being given to vest absolutely in the donee at the 
 death of the donor, the donee's title does not, like that of 
 a legatee, require the assent of the executor or adminis- 
 trator. Nevertheless, it seems that on a deficiency of 
 assets, the subject of the gift is liable like a legacy to the 
 debts of the deceased (q). If this be so, it is clear 
 that it can only be reached by the authority of the 
 Court, which would, we submit, be exercised only in favour 
 of creditors, so that in the order of administration the sub- 
 ject of a donatio mortis causa would be the last of the 
 assets resorted to. It is, however, by statute, subject to 
 legacy duty {r). 
 
 (p) Edtvards v. Jones, 1 My. & Cr. 406, cited. 
 226. (r) 8 & 9 Vict. c. 76. 
 
 (5) Smith V. Casen, 1 P. Wms.
 
 533 
 
 CHAPTER III. 
 
 PARTNEKSHIP. 
 
 Grounds of Jurisdiction. 
 I, Equity as affecting the natiure and formation of 
 PaHnership. 
 
 Cox V. Hickman. 
 II. Equity as affecting the Partnership Property. 
 
 III. Equity as affecting the Rights of Parttiers inter se. 
 
 IV. Equity as affecting the relation of Partners to 
 
 Third Persons. 
 V. Eqiiity as affecting the Dissolution of Partner- 
 ship. 
 
 It is evident that in no class of cases are the facilities Grounds 
 afforded by Courts of equity for taking accounts more °f junsdic- 
 serviceable than in those respecting partnerships. Nor was 
 their superiority to Courts of law in this respect the only 
 element in establishing and confirming their jurisdiction in 
 these matters. The Chancery procedure for procuring dis- 
 covery, the powers of granting injunctions and of decreeing 
 specific performance, adds to the fitness of its Courts 
 for dealing with disputes arising between partners, the 
 nature of which is often such as to be beyond the reach of 
 any adequate remedy under the procedure formerly known 
 to the Courts of common law. It is not surprising, there- 
 fore, that with the development of commercial pursuits, 
 the High Court of Chancery acquired an almost exclusive 
 jurisdiction in partnership cases ; nor that when that Coiu"t 
 was replaced by the Chancery Division of the High Court 
 of Justice, the dissolution of partnerships and the taking
 
 58-1- PARTNERSHIP. 
 
 of paitncrsliip accounts should prominently appear in the 
 business especially assigned to that division (i'). 
 
 In dealing in a work of the scope of the present with so 
 wide a subject as partnership, the necessity is evident of 
 confining our consideration as closely as possible to those 
 questions which are peculiarly equitable. By far the 
 greater part of the considerations arising out of the 
 contract of partnership are common to law and equity, and 
 it would therefore be inappropriate to discuss them here. 
 It suffices to call attention to matters to which the dis- 
 tinctive doctrines or remedies of equity are applicable. 
 These may thus be classified : — 
 
 I. Equity as affecting the nature and formation of the 
 partnership : 
 
 II. Equity as affecting the partnership property : 
 
 III. Equity as affecting the relation of the partners 
 inte?' se : 
 
 IV. Equity as affecting the relation of the partners to 
 third persons, and particularly creditors : 
 
 V. Equity as affecting the dissolution of the partnership. 
 
 I. Tlie nature and formation of a Partnership. 
 
 Definition. 1. Partnership in its widest sense has been defined as 
 " the relation which subsists between persons who have 
 agreed to share the profits of a business carried on by all 
 or any of them on behalf of all of them " (.s). 
 
 Partner- But this definition gives a more comprehensive meaning 
 
 tinguished ^o the word than that which it usually bears in English law. 
 
 from com- j^ includes public companies as well as partnerships in the 
 
 panies. . '■ ,. . . . 
 
 ordinary sense, and the distinction between public com- 
 panies and private partnerships is so great that they cannot 
 be conveniently treated together. It must be therefore 
 observed that private partnerships for general business 
 purposes may not consist of more than twenty persons ; 
 
 (r) Jud. Act, 1873, s. 34. 
 (s) Pollock's Dig. p. 1.
 
 NATURE AND FORMATION OF A PARTNERSHIP. 535 
 
 and for the business of banking of not more than ten 
 persons. A partnership exceeding these numbers is only- 
 legal when it is either — 
 
 (1.) Registered as a company under the Companies Act, 
 1862 ; or 
 
 (2.) Formed in pursuance of some other Act of Parlia- 
 ment or of letters patent ; or is 
 
 (3.) A company engaged in working mines within and 
 subject to the Jurisdiction of the Stannaries (t). 
 
 Partnerships coming under one or other of these dis- 
 tinctions we shall hereafter designate companies. The law 
 respecting them is especially determined by certain 
 statutes, to which the student should carefully refer (u). 
 
 2. Confining ourselves then to the consideration of part- Essential 
 nerships in the restricted and more familiar sense of the ship'*'^*'^^^' 
 word, some further elucidation is needed of the definition 
 above quoted, since many important and subtle questions 
 have arisen respecting the precise character or extent of 
 the sharing of profits which is required to constitute the 
 relation of legal partnership. 
 
 A leading authority on questions of this kind is the case of 
 
 COX V. HICKMAN. 
 
 [8 H. L. 268.] 
 
 In that case Benjamin and Josiah Smith carried on 
 business under the name of Smith & Son. Becoming 
 embarrassed they executed a deed by which they assigned 
 their property to trustees, and empowered them to carry 
 on the business under the name of the Stanton Iron Com- 
 pany, and to divide the net income amongst the creditors 
 in rateable proportions, with power for the majority of the 
 creditors, assembled at a meeting, to make rules for con- 
 ducting the business or to put an end to it altogether; and 
 after the debts had been discharged the property was to be 
 retransferred by the trustees to Smith & Son. 
 
 It was sought to make the creditors liable for debts 
 
 {t) 25 & 26 Vict. c. 89, s. 4. c. 131 ; 32 & 33 Vict. c. 114 ; 42 & 43 
 
 (u) Ibid. ; 30 & 31 Vict. c. 47, Vict. c. 76 ; 43 Vict. c. 19.
 
 5SG PARTNERSHIP. 
 
 incurred in the management of the business on the ground 
 that their participation in the profits constituted them 
 partners therein. But it was held that no partnership was 
 created by the deed (v). 
 
 The principle that a mere sharing of the profits or receipt 
 of a payment varying with the profits of a business is not 
 of itself sufficient to constitute the relationship of partner- 
 ship therein, which was strongly established in this case, 
 was shortly afterwards further amplified and defined by 
 an Act of Parliament commonly known as Bovill's Act (x). 
 28 & 29 ^ It was thereby enacted 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 " (y). 
 
 " 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 " (z). 
 
 " No person being the widow or child of the deceased 
 partner of a trader and receiving by way of annuity a por- 
 tion of the profits made by such trader in his business 
 shall by reason only of such receipt be deemed to be a 
 partner of or to be subject to any liabilities incurred by 
 such trader " («). 
 
 " No person receiving by way of annuity or otherwise 
 a portion of the profits of any business in consideration of 
 the sale by him of the goodwill of such business shall by 
 
 ((■) See also Molhvo March <{; Co. (y) s. 1. 
 
 V. Court of WarcU, 4 L. R. P. C. (z) s. 2. 
 
 419. (a) s. 3. 
 
 {y) 28 & 29 Vk-t. c. 80.
 
 NATURE AXD FORMATION OF A PARTNERSHIP. 537 
 
 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 " (b). 
 
 " 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 20s. in the pound, or 
 dying in insolvent circumstances, the lender of any such 
 loan as aforesaid shall not be entitled to recover any por- 
 tion of his principal or of the profits or interest payable in 
 respect of such loan, nor shall any such vendor of a good- 
 will 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 " (c). 
 
 This Act agraiii has given rise to considerable discussion. 
 In PooUy V. Driver {d), a person lent money to a firm 
 under a contract that the loan should be repaid at the 
 termination of the partnership, and that during the part- 
 nership and continuance of the loan the firm should 
 account to the lender for the profits and pay him a definite 
 share thereof. It was also provided that in the event of 
 the lender's bankruptcy the firm might pay off the loan 
 and determine the agreement, that there should be a 
 settlement of accounts at the end of the partnership, and 
 payment of the loan and an agreed share of profits out of 
 the assets, subject to the lender's repayment of any sum 
 overpaid to him on account of profits ; and the agreement 
 expressly purported to be for an advance by way of loan 
 under the provisions of the last-named statute. The firm 
 having become bankrupt, it was held that the lender was 
 liable for its debts, the transaction being merely a pretence 
 of a loan, and in fact amounting to a partnership. A similar 
 transaction was similarly regarded in Exp. Delhasse (e). 
 
 Un tlie contrary, where a father became security f<jr his 
 
 (b) s. i. id) 5 Ch. D. 458. 
 
 (c) s. 5. (c) 7 Ch. D. .oil.
 
 538 
 
 PARTNERSHIP. 
 
 Intention 
 of parties 
 is true 
 test. 
 
 Specific 
 perform- 
 ance, when 
 decreed. 
 
 Married 
 
 women 
 
 partners. 
 
 son for £10,000 on the latter's becoming a member of 
 Lloyd's, and the son covenanted with the father that S. 
 and no other person shouhi underwrite at Lloyd's in the 
 name of the son ; that S. should be paid £200 a year and 
 one-fifth of the profits of underwriting ; that the father 
 should be at liberty to withdraw the whole of his security 
 on notice being given to the son and other necessary par- 
 ties, and that immediately after such notice S. should cease 
 to underwrite for the son or in his name ; and that one half 
 the net profits of underwriting deducting the share of S. 
 should together with a sum of £2.5 per annum be considered 
 as owing and paid to the father by the son : it was held 
 that there was no partnership between the father and the 
 son, but merely the relation of debtor and creditor (/). 
 
 The result of the cases and true test of a partnership 
 amounts to this, that the real intention of the parties must 
 be ascertained by a consideration of the facts of each par- 
 ticular case, and that that intention determines the nature 
 of the relationship between them. On the one hand a 
 sharing of profits does not alone constitute a partner- 
 ship. On the other hand, if it appears that a partnership 
 in effect was contemplated by the parties, its natural con- 
 sequences cannot be evaded by procuring an advance of 
 capital under the outward and pretended form of a 
 loan (g). 
 
 8. As regards the formation of a partnership, it is else- 
 where remarked that Courts of equity will not usually 
 interfere to decree specific performance of an agreement to 
 that effect (h). Only when the agreement specifies a 
 definite term, and has been partly performed, can this 
 relief be successfully sought (i). 
 
 4. The only other matter of equity calling for notice in 
 this connexion arises from the equitable doctrine as to 
 the separate estate of married women. At law, a married 
 
 (/) Fxp. Tcnnrmt, 6 Ch. D. 303. 
 {(/) See also Suez's v. aS' 1 App. C. 
 174. 
 
 {J>) p. 588. 
 
 (?■) England v. Curlinf/, 8 Beav. 
 129 ; Hercy v. Birch, 9 Ves. 357.
 
 NATURE AND FORMATION OF A PARTNERSHIP. 530 
 
 woman cannot enter into a binding contract, and is there- 
 fore incapacitated from being a partner. If slie purports 
 to become such, it is her husband, and not herself, who 
 becomes legally liable (k). But in equity a married 
 woman having separate estate may, as we have seen, bind 
 that estate by her contracts, and to that extent, therefore, 
 she may, it seems, be treated as a partner in equity (?). 
 
 II. Equity as aj^ectmg the Partnershvp Property. 
 
 1. " The partners in any firm are owners in common of Ownersliii^ 
 all property and valuable interests originally brought into partners 
 the partnership stock, or acquired, whether by purchase 
 or otherwise, on account of the firm, or for the j^urposes 
 and in the course of the partnership business " (-m). 
 
 " The share of a partner is his proportion of the part- Share of a 
 nership assets after they have been all realised and con- ^^^^ ^^^' 
 verted into money, and all the debts and liabilities have 
 been paid and discharged " {n). 
 
 Where the property of the partnership comprises real Doctrines 
 estate, especial attention is required to the doctrines of estate^ 
 equity as affecting it and its devolution. 
 
 Land may become partnership property either by being 
 brought in at the formation of the firm by one or more of 
 the partners, or by being purchased out of the partnership 
 funds, or by being devised to the firm. It was formerly 
 very material to inquire in which of these ways the land 
 in question came to be a partnership asset ; but more 
 recent cases have to a great extent broken down the dis- 
 tinctions between them. 
 
 In the first place, it must be understood that modus et 
 conventio vincunt legem. It is quite open to the partners 
 by the articles of partnership, or any other agreement 
 betAveen them, to determine, as between themselves, the 
 
 (k) Burlinsons case, 3 De G. M. G. F. &. J. 533. 
 
 & G. 18. (»i) Pollock's Dig. Ptship. p. 53. 
 
 (/) Lindley, 4th edit., p. 84 ; (ti) Lindley, 661. 
 LuariVi case, 6 Jur. N. S. 5 ; 1 De
 
 540 
 
 PARTNERSHIP. 
 
 liaiuls 
 l»nmi,'ht in 
 at forma- 
 tion of 
 firm. 
 
 Lancia 
 purchased 
 with part- 
 nership 
 funds. 
 
 Lands 
 devised. 
 
 mode of disposition of the partnership property. Our 
 inquiry only relates to cases in which this has not been 
 
 done. 
 
 (1.) If land belongs to the partners separately before 
 the commencement of the partnership, or, if even it be- 
 longs to them as tenants in common, d fortiori if it 
 belono-s to one of them alone, then the fact that it is used 
 for partnership purposes will not make it partnership 
 property (o). 
 
 (2.) If lands are purchased with partnership funds, it 
 was in some early cases held that in the absence of express 
 agreement, the partners occupied as joint tenants, with a 
 right of survivorship (2?). But it has since been maintained 
 by many high authorities that lands so acquired are to 
 be regarded as accessory to the business of the partner- 
 ship, and that the right of survivorship has no application 
 thereto (q). And though the conveyance of real estate in 
 these circumstances be taken in the name of one of the 
 partners, yet, if purchased with partnership money, there 
 will be a resulting trust in favour of the firm (r). 
 
 The question on which such cases depend, resolves itself 
 into a question as to the purposes for which the property 
 was bought. If for the purpose of carrying on the part- 
 nership business, or for the purpose of a speculation on 
 account of the partnership, there will be an equitable 
 tenancy in common and no survivorship : if for the 
 separate use of the partners, not in connexion with 
 the business, there will be a simple joint tenancy and 
 survivorship, with which equity will not interfere (s). 
 
 (3.) Where lands have been devised to partners, the 
 decisions as to whether or not it is to be regarded as 
 partnership property have been very conflicting. A dis- 
 
 (o) Burdon v. Barkus, 4 De G. F. 
 & J. 42 ; 8 Jur. N. S. 656 ; Crmo- 
 shny V. Maule, 1 Swanst. 495, 523 ; 
 Roberts v. Eberhardt, Kay, 159. 
 
 (/') Jcffireys v. Small, 1 Vern. 217. 
 
 (7) Elliott V. Brovcn, 3 Swanst. 
 
 489 ; Lyster v. Dolland, 1 Ves. jr. 
 421. 
 
 (?•) Smith V. ,S'., 5 Ves. 193 ; Clegg 
 V. Fishunck, 1 Mac. & G. 294. 
 
 (s) Bank of England case, 3 DeG. 
 F. & J. 645.
 
 EQUITY AS AFFECTING THE PARTNERSHIP PROPERTY. 541 
 
 tinction was drawn between devised lands and purchased 
 lauds which were similarly used by a firm, in the case 
 of Morris v. Barrett (t), the latter being deemed partner- 
 ship property, the former not so ; and a similar rule as 
 to devised property was followed in Brown v. Oakshot (u) 
 and Phillips v. P. (x). On the contrary, lands devised 
 were deemed accessory to the trade and as partnership 
 property in Jackson v. J. (y) and Crawshay v. Maule {z) ; 
 and by the more recent and strong case of Waterer v. 
 W. (a), such lands seem to have been placed on the same 
 footing as lands purchased ; the question depending on 
 whether they are " substantially involved in the business." 
 
 (4.) Where partners hold real estate for partnership pur- Conver- 
 poses, the question arises, whether the real estate is not, real estate 
 
 even in the absence of any expressed intention of the ^^ ^^^^^ "^ 
 
 "^ ^ . partner- 
 
 partners, so absolutely converted into personalty as to be ship when 
 
 held by the surviving partners, not in trust for the heir- ^**"'^'*^'^ 
 at-law, but for the personal representative of the deceased 
 partner. It is clearly settled that where real estate is 
 purchased with partnership capital, for the purposes of 
 partnership trade, it will, in the absence of any express 
 agreement, be considered as absolutely converted into per- 
 sonalty, so as to pass to the personal representatives of a 
 deceased partner, free from dower (b). On the contrary, 
 where real estate belonged to the partners at the time of 
 their entering into partnership, or has been subsequently 
 acquired by them out of their own private monies, or by 
 gift, it was formerly held that conversion would not, unless 
 by express agreement, take place, although the real estate 
 had been used for partnership purposes in trade (c). 
 
 More recent cases, however, have proceeded upon the Modern 
 broader principle, that where real property has been sub- favour of 
 
 (t) 3 Y. &. J. 384. on Partnership, App. 97 ; Fereday 
 
 \u) 24 Beav. 254. v. Wightiokk, 1 Russ. & M. 45. 
 
 \x) Lindley, G52. (c) Thornton v. Dixon, 3 Bro. C. 
 
 (y) 9 Ves. 591. C. 199 ; Phillips v. P., 1 My. & K. 
 
 (z) Sup. 649 ; Balmain v. Shm-e, 9 Ves. 500 ; 
 
 (rt) 15 Eq. 402. Cookson v. C, 8 Sim. 529. 
 (h) Townsend v. Demy men, 1 Mont.
 
 542 PARTNKliSITTP. 
 
 conver- staiitially involved in a business or trade, it is part of tlie 
 partnership property, and therefore personal estate, and 
 that it is immaterial how it may have been acquired by 
 the partners, whether by descent or devise (d). 
 
 The question then comes to this, that, as a general rule, 
 it is inherent in the contract of partnership and needs no 
 special stipulation, that upon the dissolution of the part- 
 nership all the property thereof must be sold and the 
 proceeds, after payment of all the partnership liabilities, 
 divided among the partners according to their shares, no 
 one partner having any right to insist on retaining his 
 share of any one item of the property in specie. It 
 follows that any real property which has become the pro- 
 perty of the partnership becomes, by force of the partner- 
 ship contract, converted into personalty ; and that, not 
 merely between the partners, but as between their repre- 
 sentatives after their decease (e), and also for fiscal pur- 
 poses, so that the Crown can claim legacy and probate 
 duty in respect thereof {/). 
 Land Both principle and authority also point to the conclu- 
 
 for re-TaTe •'^i*"^ that conversion will take place, not only where real 
 converted, property is acquired for the piu^poses of partnership in 
 trade, but also where it is acquired with the partnership 
 funds for the purpose of a re-sale upon a speculation not 
 coming within the usual denomination of trade (g). 
 Conversion Of course if the owners of real estate upon entering 
 nient. ^^^'^ partnership direct or agree that it shall be sold upon • 
 the death of one of them, it will be held to be absolutely 
 converted into personalty and will go to the personal repre- 
 sentative, the conversion being held to have taken place at 
 the date of the agreement (h). 
 Dealings But real estate may be so dealt with by partners as to 
 
 inconsist- "^ ^ 
 
 ent with f)revent this result, by showing that conversion was not 
 conversion, intended ; as, for instance, if they procure it to be con- - 
 
 (d) Watered- v. W., 15 Eq. 402. 189. 
 
 (e) JJarhij v. D., 3 Drew, 495, (r/) Darhy v. !>., sup. 
 
 503, 506. ('/,) Essex v. h\, 20 Beav. 442. 
 
 if) Fori a V. Steven, 10 Eq. U8,
 
 EQUITY AS AFFECTINfJ THE RIOTITS OF PAllTNERS. 543 
 
 veyed to them in equal undivided shares (i) ; and the result 
 is the same, where, though purchased out of partnership 
 capital, it is not used for the purposes of the partnership in 
 trade (k). Also where real estate was purchased for the 
 purpose of the partnership in trade, but by agreement 
 between the partners it was to be the separate proj)erty of 
 one of them, who took a conveyance thereof in his own 
 name, it was held that it was not partnership property, and 
 was liable to dower (l). 
 
 So, likewise, property purchased with partnership capital, Reconver- 
 for jDartnership purposes in trade, and therefore converted 
 into personalty, may be reconverted by the express or 
 implied agreement of the partners. As an instance of what 
 amounts to an implied agreement, may be mentioned a 
 stipulation for payment of rent by the partnership to one 
 or some of the individual partners (m). 
 
 III. Equity as affecting the Rights of Partners inter se. 
 
 1. The jurisdiction of equity respecting the mutual Actions 
 rights of partners was especially required to meet the ends parties" 
 of justice because of the great restrictions imposed by the 
 principles of the common law on actions between partners. 
 A firm or partnership had formerly no judicial existence at at law, 
 law as distinguished from the persons composing it. If then 
 one partner had a claim against the partnership, for instance 
 for money advanced on its account, or on the other hand, if 
 one partner was indebted to the partnership, it would have 
 been formally necessary that in the first case all the partners 
 {including the plaintiff) should appear as defendants ; and 
 in the second, that all the partners (including the defendant) 
 should appear as plaintiffs. But by the technical rules 
 of law, the same person could not ajjpear as both plaintiff 
 and defendant in an action. There was, therefore, a j)urely 
 
 (j) Custance v. Bradshaw, 4 Ha. Randall v. R., 7 Sini. 271. 
 31.5. (I) Smith V. S., 5 Ves. 19-3. 
 
 (A-) Bell V. Phyn, 7 Ven. 453; [m] Rowlri/ v. Adams, 7 Bea.v. 5iS.
 
 544 
 
 TARTNET^STIT?. 
 
 in equity. 
 
 formal, but none the less insuperable hindrance to the 
 legal remedy in such cases hi). Equity, however, dis- 
 reoarding these distinctions of form, entertained such cases 
 and decreed as justice required, demanding only that all 
 the parties, Avhether as plaintiffs or defendants, should be 
 before it (o). Hence its jurisdiction over an extensive 
 class of cases involving mere money demands. It need 
 scarcely be repeated that at present the rules of equity in 
 this as in other respects prevail in all divisions of the High 
 Court. 
 
 2. Many other cases, however, come within the cognizance 
 of equity on the ground of the particular forms of relief 
 which it is able to give. Some of these fall more appro- 
 priately under the head of dissolution, and are accordingly 
 postponed for the present. Others might with perfect 
 consistency be relegated to the general headings of injunc- 
 tion and specific performance ; but the balance of con- 
 venience nevertheless seems in favour of their consideration 
 here. 
 
 Where there are articles of partnership the assistance of 
 equity is often sought for the purpose of compelling the 
 specific performance thereof The general principles on 
 which this peculiar form of relief is granted are elsewhere 
 fully considered. It suffices here to say that questions 
 arising on partnership articles fall entirely within those 
 principles, the most conspicuous of which is that no such 
 relief is given if there is an adequate remedy at law. 
 illustrated. The application of remedy in cases of partnership articles 
 may best be illustrated by referring to cases in which 
 specific performance has been decreed of agi-eements 
 respecting the style or name of the partnership (jy) ; of 
 agreements not to carry on business within a certain area 
 or limits of time (q) ; of agrcen:icnts as to the custody and 
 
 Specific 
 perform- 
 ance of 
 articles 
 
 (?)) Borill V. Ilammmul, 6 B. & C. 
 151 ; Sedfjuick v. Dunidl, 2 H. & 
 N. 319. 
 
 (o) Wriijld V. Hunter, 5 Ves. 792. 
 
 (p) Marshall v. Cobnan, 2 J. & 
 W. 266, 2S9. 
 
 (q) Whittakcr v. Howe, 3 Beav. 
 383 ; Tvrncr v. Major, 3 Giff. 442.
 
 EQUITY AS AFFECTING THE RIGHTS OF PARTNERS. 545 
 
 inspection of the partnership books (r) ; of agreements as 
 to the mode of valuing the share of an outgoing or a 
 deceased partner (s) ; of agreements giving a right of pre- 
 emption of the share of an outgoing partner (t) ; of agree- 
 ments to grant an annuity to a retiring partner (u) ; and 
 of agreements not to divulge a trade secret (x). As to 
 specific performance of agreements to refer to arbitration, 
 see p. 589. 
 
 It is observable that in many of these cases, the agree- 
 ments being negative, the remedy of specific performance 
 takes the form of an injunction. 
 
 3. In the absence of articles of partnership, the mutual Injunc- 
 rights of the partners are determined by the general 
 principles of law, and are equally enforceable in equity 
 by means of the remedy of injunction. Thus acts tending 
 to the destruction of the partnership property have been 
 so restrained (y) ; and the same remedy has been applied 
 where a partner has been hindered in the exercise of his 
 legal right to partake in the management of the business (z). 
 And, generally, acts inconsistent with the proper duties of 
 partners may be restrained by injunction, even though no 
 dissolution is sought, no countenance being given to any 
 one of the partners wrho seeks by improper conduct to 
 drive others to a dissolution (ci). 
 
 Similarly, and for similar reasons, an account may be Account, 
 decreed in equity without seeking a dissolution ; not, how- 
 ever, a continuous account of the business operations. 
 The Court will not so undertake the carr^ang on of a 
 business, though it will in proper cases investigate its 
 accounts up to the time of commencing the action (6). 
 
 (r) Linden v. /Sinywo??, 1 S. & S. (y) Miles v. Tkoiruts, 9 Sim. G06 ; 
 
 600. Marshall v. Watsoii, 25 Beav. 501. 
 (s) Morris v. Kearsley, 2 Y. & C. (2) Amn, 2 K. & J. 441. 
 
 Ex. 139 ; Gibson v. Goldsmid, 5 De (a) Hall v. //„ 12 Beav. 414 ; 
 
 G. M. & G. 757. 20 ib. 139 ; 3 Mac. & G. 79 ; Fair- 
 it) Homfray v. Fothergill, 1 Eq. thorne v. Weston, 3 Ha. 387. 
 
 567. (h) Loscombe v. Russell, 4 Sim. 8 ; 
 
 (m) Aubin v. Holt, 2 K. & J. 66. FairtJiorne v. Weston, sup. 
 
 Morison v. Moat, 9 Ha. 241. 
 
 N N
 
 546 
 
 PARTNERSHIP. 
 
 Con- 4. A third particular in which equity exercises beneficial 
 
 tnists^^^ influence in preserving the rights of partners is by its appli- 
 where cation of the principle of constructive trusts to cases in 
 advauta're which a partner unconsciously seeks to take advantage of 
 made. j^jg position to the prejudice of his co-partners. 
 
 Cases in illustration of this have already been given and 
 commented on (c) ; and at present, therefore, mere refer- 
 ence will suffice to such cases as the renewal of leases 
 and purchases of partnership property by individual 
 partners. 
 
 Actions 
 
 between 
 
 firms 
 
 having a 
 
 common 
 
 partner. 
 
 Joint 
 
 liability 
 
 partners, 
 
 of 
 
 IV. Equity as affecting the relation of Partners to 
 Third Persons. 
 
 1. Recourse to equity was sometimes needed as between 
 one partnership and another, on the same grounds as those 
 above shown to have founded its jurisdiction in matters of 
 account between the members of a single partnership. 
 Thus, for the reason already given, it was formerly impos- 
 sible for one firm to sue another at law if there was one 
 partner common to both firms (d). But equity in this 
 case, as in the other, was independent of such technical 
 difficulties, and, having the parties before it, adjudicated 
 upon the dealings between the firms, determining and 
 enforcing their respective rights (e). 
 
 2. But the jurisdiction of equity as between partnerships 
 and third persons is most conspicuous in its administration 
 of the assets of partnerships and partners for the benefit 
 of creditors. 
 
 (1.) Every partner is liable jointl}^ with the other partners 
 for all debts and obligations incurred while he is partner, 
 and in the usual course of the partnership business by or 
 on behalf of the firm (/). 
 
 It has been recently decided by the highest authority 
 
 (r) Supra, pp. 8-t and 97. 
 (ci) Bosanquet v. Wray, 6 Taunt. 
 597. 
 
 (e) M<dnivarimj v. Newman, 2 B. 
 & P. 120. 
 
 {/) Pollock Dig. Ptship. 25.
 
 EQUITY AS AFFECTING THE RELATION OF PARTNERS, 547 
 
 that as between living partners and creditors the liability 
 for the debts of the partnership is joint only, and not 
 several {g). If, however, a partner dies, his estate then f ^y?,*".'^^ 
 becomes severally liable to the unsatisfied debts and obli- estate of 
 gations of the partnership, and creditors may at their ^^rtner** 
 option pursue their remedies against the surviving partners 
 or partner or against the estate of the deceased partner ; 
 and it is immaterial what is the state of accounts between 
 the partners, or what the ability of the survivors to 
 pay (A). 
 
 (2.) In the distribution, however, of the estates of deceased Adminis- 
 partners in Chancery, and of bankrupt and insolvent assets" ' 
 partners in bankruptcy, the partnership property is applied 
 as joint estate in payment of the debts of the firm ; and 
 the separate property of each partner is applied in pay- 
 ment of his separate debts. If in either case there is a 
 surplus, then the surplus of the joint estate is applicable 
 for the payment of the separate debts, and the surplus of 
 the separate estate for the payment of the partnership 
 debts. 
 
 Thus if A. and B. are in partnership, and on A.'s death Sus- 
 his estate is administered by the Court, both A.'s and B.'s 
 estates being solvent, A.'s separate creditors and the 
 creditors of the firm may prove their debts against A.'s 
 estate, and be paid out of his assets |9a7'i passu. The 
 payments thus made to creditors of the firm must then be 
 allowed by B. in account with A.'s estate as payments 
 made on behalf of the firm, so that in ascertaining the 
 value of A.'s share in the partnership these payments are 
 credited to him. If, however, A.'s estate is insolvent, and 
 the creditors of the firm proceed to recover the full amount 
 of their debts from the solvent partner B., B. will then 
 become a creditor of A.'s separate estate for the amount of 
 the partnership debts paid by B. beyond his proportion as 
 determined by the partnership contract. If B. is also in- 
 
 ((j) Kendall v. Hamilton, 4 App. (/<) Baring v. Noble, 2 R. & M. 
 
 C. 504. 475. 
 
 N N 2
 
 548 
 
 PARTNERSHIP. 
 
 Excep- 
 tional 
 cases. 
 Debts 
 arising 
 through 
 fraud. 
 
 Partner 
 may not 
 prove in 
 competi- 
 tion with 
 creditors. 
 
 solvent, the creditors of the firm must first resort to the 
 partnership property, and the separate creditors of the 
 partners to the separate estates of each respectively. The 
 partnership creditors can only resort to so much of the 
 separate property of the partners as remains after paying 
 the separate debts in full, and the separate creditors can 
 only resort to so much of the partnership property as 
 remains after paying the debts of the firm in full (i). It 
 follows from this rule of administration, that a partnership 
 creditor who is indebted to a deceased or insolvent partner 
 cannot set off his separate debt against the partnership 
 debt due to him (k). 
 
 Such is the general principle of the distribution of the 
 joint and separate assets. It is, however, subject to certain 
 exceptions. Thus if a partnership debt is contracted by 
 the fraud of any of the partners, the creditor so defrauded 
 may, at his option, treat it as a joint or separate debt (?). 
 If tliere is no joint estate of a bankrupt firm, the partner- 
 ship creditors may at once resort to the separate estates ; 
 but joint estate of the most trifling amount Avill exclude 
 this right (rn). 
 
 3. On the other hand, the trustee in bankruptcy of a 
 bankrupt firm may prove against the separate estate of 
 any partner, where that partner has fraudulently converted 
 partnership property to his own use without the consent 
 or ratification of the other partners (n). 
 
 It is to be observed further that in the administration of 
 the joint estate of a firm, or of the separate estate of any 
 partner, no partner or lender of money under 28 &j 29 Vict, 
 c. 86 can prove for a debt due to him from the partnership in 
 competition with the outside creditors of the firm, or with 
 those of any other partner. His claim only arises when 
 
 (0 See Pollock's Dig. Ptsliip. 110, 
 111 ; liidgway v. Clare, 19 Beav. 
 Ill; Lodge v. Pritchard, 1 De G. J. 
 & S. 610 ; Exp. Dear, 1 Ch. D. 519. 
 
 (k) Stephenson v. Chiswell, 3 Yes. 
 
 (/) Exp. Adamsoii, 8 Ch. D. 807. 
 
 (m) Exp. Kennedij, 2 De G. M. & 
 G. 228 ; Exp. Cl<ty,^ib. 230, n. 
 
 (n) Exp. Hnrris, 2 V. & B. 210; 
 Lacey v. Ilill, 4 Ch. D. 537 ; Read 
 V. Bailey, 3 App. C. 94.
 
 THE DISSOLUTION OF PARTNERSHIPS. 549 
 
 all the external debts of the firm have been paid, except 
 in case his property has been fraudulently converted to the 
 use of the firm (o). 
 
 V. The Dissolution of Partnerships. 
 
 1. The first consideration is by what means a dissolution 
 of a partnership may be effected. 
 
 Generally the duration of a partnership is fixed on by Where 
 the agreement of the partners. When so fixed, the agree- g^^.™ '^ 
 ment will not be interfered with by a Court of equity, 
 except under special circumstances, which will be presently 
 considered. The partnership, however, may at any time 
 be dissolved by the common consent of all the partners (p). 
 In the absence of such consent, or of the special interference 
 of the Court, a partnership for a fixed term only expires 
 with the efflux of the time agreed upon for its duration (q). 
 
 In the following cases, notwithstanding that a definite Dissolu- 
 term has been expressly agreed upon, the partnership is operation 
 determined by operation of law. of law. 
 
 (1.) The death of any partner dissolves the partnership, Death of 
 and this (in the absence of any previous agreement to the ^'^^ ^^'^' 
 contrary) not only as to himself, but as between all the 
 members of the firm (r). 
 
 (2.) The alienation of the share of any partner by opera- Alienation 
 tion of law dissolves the partnership. Thus if a partner law ^^^ ^^ 
 becomes bankrupt (s), or outlawed (t), or his property is 
 taken in execution (u), the partnership is dissolved. 
 
 (3.) Unless the shares in the jDartnership are by agree- Assign- 
 ment assignable, a partnership at will is dissolved by an ^^"g " 
 assignment or incumbrance of his share by a partner (v). 
 In the case of a partnership for a fixed term, it seems 
 
 (o) Exp. Hayman, 8 Ch. D. 11. 444. 
 
 (p) Ilall V. "^H., 12 Beav. 414. (s) Barl-ej- v. Goodair, 11 Ves. 83. 
 
 (q) Featherstonehaugk v. Femcicl; {t) Pollock Dig. 72. 
 
 17 Ves. 298. (») LincUey, 691. 
 
 (r) Gillespie v. Hamilton, 3 Mad. (^•) Liudley, 698. 
 
 251 ; Backhouse v. Charlton, 8 Ch. D.
 
 550 
 
 PARTNERSHIP. 
 
 Business 
 becoming 
 unlawful. 
 
 Dissolu- 
 tion by 
 decree. 
 Grounds 
 of. 
 
 Incapa- 
 city. 
 
 Lunacy. 
 
 Bad 
 conduct. 
 
 that such an assignment or incumbrance is at least a valid 
 ground for seeking dissolution {x). 
 
 (4.) A partnership is dissolved by the happening of any 
 event which makes it unlawful to carry on the business 
 thereof. For instance, a declaration of war between 
 England and a foreign country dissolves a partnership 
 between an Englishman and a subject of that country {y). 
 
 (5.) A partnership may also be dissolved by decree of a 
 Court of equity. Such a decree may be obtained under 
 any of the following circumstances : — 
 
 i. When any partner becomes permanently incapable of 
 performing his part of the partnership contract. 
 
 In case of a partner being found lunatic by inquisition, 
 the jurisdiction to dissolve the partnership is in the Lord 
 Chancellor or Lords Justices (0). If otherwise shown to be 
 of permanently unsound mind, the Chancery Division will 
 so decree (a). Lunacy, however, does not ipso motu effect 
 a dissolution. Physical incapacity is, equally with mental 
 derangement, a ground for seeking dissolution (6). 
 
 ii. When a partner so conducts himself with reference to 
 partnership matters that it becomes practically impossible 
 for the other partners to carry on the business with him. 
 
 Conduct coming under this description may consist of 
 active improprieties or of negligence. Breaches of trust or 
 confidence (c), habitual or persistent breaches of the articles 
 of the partnership, for instance, as to the mode of carrying 
 on the business (d), and the becoming liable to a criminal 
 prosecution (e), afford good grounds for seeking a decree of 
 dissolution (/). So also does persistent negligence of the 
 partnership business by a partner whose duty it is to devote 
 his attention to it (g). 
 
 (x) Lindley, 698 ; Nerot v. Bur- 
 nard, 4 Russ. 247. 
 
 iy) Esposito V. Bowden, 7 E. & B. 
 763. 
 
 (z) 16 & 17 Vict. c. 70. 
 
 (a) Waters v. Taylor, 2 V. & B. 
 299, 303 ; Jones v. Hoy, 2 My. & K. 
 125 ; Joms v. Lloyd, 18 Eq. 265. 
 
 (b) Whitiveli V. Arthur, 35 Beav. 
 
 140. 
 
 {c) Smith V. Jeyes, 4 Beav. 503. 
 
 (cZ) Waters v. Taylm-, sup. 
 
 (c) Essel V. Hayward, 30 Beav. 
 158. 
 
 (/) ^ee Atwoodv. Maude, 3 Ch. 
 373. 
 
 (g) Harrison v. Tennant, 21 Beav. 
 482.
 
 THE DISSOLUTION OF PARTNERSHIPS. 651 
 
 The Court will not, however, regard mere disagreements 
 or quarrels, or incompatibility of temper between part- 
 ners (Ji), unless they be of such an aggravated nature as to 
 destroy all confidence and the possibility of advantageous 
 working {%). 
 
 iii. When the business of the partnership can only be Business 
 carried on at a loss, or there is no reasonable prospect of °^^' 
 profit Qc). 
 
 iv. It has already been noted that the assignment or in- Assign- 
 cumbrance of his share by a partner for a fixed term affords, °r"u 
 
 *' ^ 'of share. 
 
 in the absence of agreement to the contrary, a ground for 
 seeking dissolution. 
 
 V. In this place it is also appropriate to observe that if Partner- 
 a partnership has been induced by any species of fraud or induced by 
 imposition, the contract may be dissolved ah initio at the ^'■^"ti- 
 suit of the party deceived {I). 
 
 Unless there is a distinct breach of the partnership 
 articles, a dissolution, if decreed, will not be made retrospec- 
 tive, but will operate only from the date of the judg- 
 ment {m). 
 
 2. On the dissolution of a partnership the existing Rights of 
 creditors of the firm of course retain all their rights against hrdissoiu- 
 the partners which have already accrued. tion- 
 
 Further than this, if the firm continues its business, and 
 no notice of the retirement of a partner is given to a 
 creditor, and the retiring partner was known by him to 
 have been a partner in the firm, such retiring partner 
 remains liable as if he had continued in the firm {n). But 
 if the retiring partner was unknown to the creditor as a 
 partner, his liability entirely ceases on his retirement. As 
 regards past customers of a firm, it appears that mere 
 public advertisement of dissolution in the London Gazette 
 
 (A) Wray v. Hutchinson, 2 My. & [l) Raxolins v. Wickham, 1 Giff. 
 
 K. 235 ; Goodman v. Whitcomb, 1 355 ; Hue v. Richards, 2 Beav. 305. 
 
 J. & W. 589. (m) Lyon v. Tweddle, 17 Ch. D. 
 
 {i) Baxter v. West, 1 Dr. & S. 173 ; 529. 
 
 Leary v. Shout, 33 Beav. 582. {n) Exp. Robinson, 3 D. & Ch. 
 
 (^•) Jennings v. Baddeley, 3 K. & 388. 
 •T. 78. 
 
 ■
 
 552 PARTNERSHIP. 
 
 is not sufficient notice to prevent the continuance of their 
 rights; but such advertisement is sufficient notice of the 
 fact to creditors who were not customers at the time of 
 dissolution (o). 
 
 The estate of a partner who dies (p) or who becomes 
 bankrupt (q) is not in any case liable to any future debts 
 of the firm ; and it is immaterial that the person giving 
 credit thereafter is ignorant of the fact of such death or 
 bankruptcy (r). 
 
 Where a dissolution has taken place, an account will not 
 only be decreed, but if necessary a manager or receiver 
 will be appointed to close the partnership business and sell 
 the partnership property, so that a final distribution may 
 be made of the partnership effects (s). But a manager or 
 receiver will not be appointed except with a view to a 
 dissolution (t). 
 
 {o) Lindley, 416. (?•) IlouUon's Case, 1 Mer. 616. 
 
 ( 23) Bricc's Case, 1 Mer. 622. (s) Story, 672. 
 
 Iq) Lindley, 405. (t) ffall v. II., 3 Mac. & G. 79.
 
 553 
 
 CHAPTER IV. 
 
 PARTITION AND THE SETTLEMENT OF BOUNDARIES. 
 
 The jurisdiction of equity with respect to both partition Origin of 
 and the settling of boundaries originated in the insufficiency tion. 
 of the common law remedy. As regards partition it is true In parti- 
 that proceedings might be taken at common law by writ of 
 partition : but they were at a very early period found to 
 be inadequate and incomplete. Various ajid complicated 
 interests are often attached to the ownership of real estate, 
 and when the titles were in any degree complicated, and 
 discovery was needed to ascertain them, the processes of law 
 were very inapt to deal with them. Moreover, Courts of 
 law were content merely to declare the rights of the parties, 
 and were incapable of effecting a partition by means of 
 mutual conveyances; nor could they regulate the appropriate 
 and indispensable compensatory adjustments. For these 
 and other similar reasons, equity assumed a general concur- 
 rent jurisdiction with Courts of law in all cases of partition. 
 In so doing it usually followed the analogies of the law, and 
 decreed partition in such cases as Courts of law recognised 
 as fit for their interference. Equity, however, did not limit 
 its jurisdiction to cases cognisable or relievable at law ; 
 there were many cases in which it interfered where law 
 would not have done so — for instance, where an equitable 
 title was set up. Now, by section 34 of the Judicature 
 Act, 1873, the jurisdiction in cases of partition, which was 
 formerly common to Courts both of law and equity, is 
 assigned exclusively to the Chancery Division of the High 
 Court.
 
 554 PARTITION AND THE SETTLEMENT OF BOUNDARIES. 
 
 In settle- With respect to the settling of boundaries, different 
 Wn-*^ origins have been alleged for the jurisdiction. It is un- 
 *^*""^- doubtedly as old as the reign of Elizabeth ; but whether 
 arising from the intent to prevent multiplicity of suits at 
 law, or from the issuing of a commission at first by request 
 or consent of the parties, and then on the application of 
 one partv who should succeed in establishing an equitable 
 ground for requiring it, or whether it was founded by the 
 chancellors upon the basis of the actio finium regundorura 
 of Roman law, is disputed. But whatever its origin, the 
 case of WaJce v.Conyers well illustrates its present character 
 and extent. 
 Compared. It resembles the remedy of partition in that the relief in 
 both cases is effected by similar machinery — namely, the 
 issuing of a commission with authority to inquire as to the 
 rights of the parties, and to settle them definitively — and 
 for this reason the two subjects have been here classed 
 together. They differ, however, conspicuously in that 
 whereas partition is to those parties within its scope a 
 matter of right, the commission to settle boundaries will 
 not be granted unless it is claimed by virtue of some equity 
 superinduced by the act of the parties. It is eminently 
 dependent upon the discretion of the Court.
 
 WHO MAY CLAIM PARTITION, 555 
 
 Section I. — Partition. 
 
 I. Who iiuiy clo.iin Partition. 
 II. What is subject to Paiiition. 
 
 III. Mode of effect ing Partition. 
 
 IV. The Paiiition Acts. 
 Y. Costs. 
 
 I. Who may claim Partition. 
 
 1. At common law co-parceners only had a right to Co- 
 compel partition. By the Statute of Partition (a) joint ?oi^^^°^^^' 
 tenants and tenants in common of any estate of inheritance tenants, 
 
 ... . tenants in 
 
 in their own right, or that of their wives, might be com- common. 
 
 pelled to make partition between them, and by 32 Hen. 8, 
 
 c. 32, s. 1, joint tenants and tenants in common for lives 
 
 or years are declared compellable to make partition in the 
 
 same way. 
 
 2. A decree of pai'tition is a matter of right, and it has Tenants 
 been held to be no objection to a bill that the interests of °^ ^ 
 all parties would not be finally bound by it. Consequently, 
 
 a decree may be obtained either by or against a person 
 
 ha^ing only a limited interest as a tenant for life (6), or 
 
 a tenant for life determinable on marriage (c), or a and for a 
 
 tenant for a term (d) ; and where there are remainder-men **""• 
 
 who may come in esse and be entitled, they will be bound 
 
 by a decree made against the tenant for life (e). 
 
 A tenant in tail may also obtain a decree for a partition Tenants in 
 (/) ; and a partition between tenants in tail, though by 
 parol, binds the issue (g). 
 
 (a) 31 Hen. 8, c. 1. 551. 
 
 (b) Gaskdl V. Cr.. 6 Sim. 643. (f) Wills v. Slade. 6 Yes. 498. 
 
 (c) Hobson V. Ska-icood, 4 Bear. (/) Brook v. Hertford, 2 P. Wms. 
 184. 518. 
 
 (c?) Baring v. Sash, 1 V. & B. (<j) Rose v. R., 2 Vern. 233, cited
 
 55G PARTITION. 
 
 Claimants 3. A pcrsoTi caii oiily compel partition when entitled in 
 entitled in possession. A bill was held not maintainable by a joint- 
 possession, tenant or tenant in common in reversion or remainder (h) ; 
 nor could he, after bill filed, by acquiring possession and 
 amending his bill, have put himself in a better position. 
 
 A suit for partition being based on the assumption that 
 there is no litigation, it cannot be made the means of 
 trying a legal title (i). Disputed questions seem, however, 
 sometimes to have been decided in such cases with the 
 consent of the parties (k). 
 Mort- 4_ A mortgagee of an undivided share may sue for fore- 
 
 closure and partition, and move for a receiver of the rents 
 of the undivided share of the mortgagor (l). A partition, 
 however, appears not to be properly incident to a fore- 
 closure or redemption suit in such a way that the owners 
 of the equity of redemption can be allowed to insist on it 
 against the will of the mortgagee, who has no interest in 
 the question (ni). 
 
 Plaintiff 5_ The title of the plaintiff to an interest in the pro- 
 
 must show ^ 1 • 1 1 1 • • 11 / V 
 
 title. perty oi which he seeks partition must be shown {n). 
 
 Where, however, there is only a small failure in the proof 
 of title, or the interests of the parties in the property are 
 uncertain, they may be ascertained by a reference, and 
 under the old practice this must have been done previous 
 to the commission issuing ; for, as is laid down in Agar v. 
 Fairfax (o), it was not the duty of the commissioners to 
 ascertain the proportions and rights of the parties ; their 
 duty commenced when these were ascertained. Uncer- 
 tainty as to the shares of the parties is, therefore, not an 
 objection to partition, but only a ground for postponing it 
 until such shares have been ascertained. 
 Dowress. 6. Upoii the sanio principles as in cases of partition, 
 although dower was originally a mere legal demand, a 
 
 (A) Evans v. Bayshaw, 8 Eq. 469 ; {m) Watkins v. Williums, 3 Mac 
 
 5 Ch. 340. & C4. 622. 
 
 (i) SIndc V. Barloiv, 7 Eq. 296. (n) Carhcriffht v. Pultney, 3 Atk 
 
 (A) Bnrt V. Hdlijar, 14 Eq. 160. 380 ; Joyiey. Mmshcad, 6 Beav. 213 
 
 (0 Fall V. Elkins, 9 W. R. 861. (o) 17 Ves. 533.
 
 WHAT IS SUBJECT TO PARTITION, 557 
 
 widow, being a joint owner, became entitled in equity to 
 an assignment of one-third of the lands of which her hus- 
 band was seised in fee or in tail, which her issue mioht 
 possibly have inherited. And since the Dower Act {p) 
 the right applies as well to equitable as to legal estates. 
 
 If the widow's right to dower was disputed, an issue 
 was formerly directed {q), and if necessary an inquiry made 
 as to the lands of which she was dowable (r). The right 
 being established, and the property affected thereby ascer- 
 tained, the next step is to ascertain the dower ; and this 
 may be done either by a reference, or by directing a com- 
 mission to issue, which is made out, executed, and returned 
 in the same manner as a commission of partition (s). 
 
 II. Wliat is subject to Partition. 
 
 1. Freeholds have been always subject to partition ; Freeholds, 
 but previous to 4 & 5 Vict. c. 35 (amended by 21 & 22 
 
 Vict. c. 94), the Court of Chancery, though it could 
 decree specific performance of an agreement to divide 
 copyholds (t), had no power to direct the partition of copy- Copyholds, 
 holds or of customary freeholds. It was given, however, 
 by the 85th section of that Act (m). 
 
 2. Leaseholds, also, under 32 Hen. 8, c. 32, s. 1, were Lease- 
 subject to partition during the term, at the instance of ^°^'^^' 
 the termor of an undivided share (x); but partition of 
 leaseholds was refused where the landlord might imme- 
 diately obtain an injunction to restrain the parties from 
 executing it by any act amounting to waste, or where the 
 Court could not protect one of the tenants in common 
 from a breach of covenant which might be committed by 
 
 the other {y). 
 
 {p)B & i Will. 4, e. 105. M., sup. 
 
 (q) Mundy v. M., 2 Ves. jr. 122. {t) Bolton v. Ward, 4 Hare, 530. 
 
 (r) Meggott v. M., 2 Ves. jr. 127, (u) Horncastle v. Chiuiesworth, 11 
 
 cited ; Seton, 681-3, 4th ed. Sim. .315. 
 
 (.-•) Goodenough v. G., 2 Dick. 795 ; (x) Baring v. Nash, 1 V. & B. 551. 
 
 Wild V. Wells, I Dick. 3 ; Mundi/ v. (y) North v. Guinan, Beat. 342.
 
 558 
 
 PARTITION. 
 
 Manor 
 advowson. 
 
 3. A partition has been decreed of a manor (z) and of an 
 advowson (a) ; in the latter case the right to present being 
 sometimes given alternately, in others determined by 
 lot (b). Under the present law, however, a sale would 
 always be directed (c). 
 
 Com- 
 mission, 
 when 
 directed. 
 
 Difficulty 
 no objec- 
 tion. 
 
 III. Mode of effecting Partition. 
 
 1. It is not the ordinary practice for a commission to 
 issue for the purpose of making a partition. If inquiries 
 are necessary, it can be done in Chambers ; if not, in Court 
 at the hearing. There are many cases, however, in which 
 a commission may still be directed to issue in accordance 
 with the old practice of the Court, especially where the 
 interests of parties under disability are concerned ; but 
 sometimes the Court would approve of a partition without 
 a commission even where infants were interested, upon 
 proper evidence of value (d). 
 
 2. The inconvenience or difficulty in making a partition 
 has been held to be no objection to a decree (e). The 
 consequences of this, previous to the Partition Acts, 
 were often sufficiently absurd. In Turner v, Morgan (/) 
 there was a decree for the partition of a single house. 
 The commissioners allotted to the plaintiff the whole stack 
 of chimneys, all the fireplaces, the only staircase, and 
 all the conveniences in the yard. Exception was taken 
 to this by the defendant, but Lord Eldon said he did 
 not know how to make a better partition for them ; the 
 parties ought to agree to buy and sell. But it has 
 never been deemed necessary that every house on an 
 estate should be divided, if a sufficient part of the whole 
 could be allotted to each ; and in making a partition the 
 
 (z) Sparroio v. Friend, 1 Dick. 348. 
 (a) Johnstons v. Baber, 6 De G. 
 M. & G. 4.39. 
 (h) Ibid. 
 (c) See infra ; Young v. Y., 13 Ei[. 
 
 175, note. 
 
 [d) Brassey v. Chalmers, 4 De G. 
 M. & G. 528. 
 
 (r) Warner v. Bayncs, Amb. 589. 
 
 (/) 8 Ves. 143.
 
 MODE OF EFFECTING PARTITION, 559 
 
 Court would take the convenience of the parties into con- 
 sideration ((/). If the commissioners can find nothing to 
 guide their discretion, they may cast lots ; if they cannot 
 agree, they may make separate returns, and the Court 
 may deal with them as it may think advisable (h). 
 
 3. For the sake of convenience, in equity a recompense Recom- 
 has been made, eitlier by a sum of money or rent for 
 owelty, or equality of partition (i). This could not have 
 been done under the writ at law. And the commissioners 
 themselves, unless directed by a decree, have no power to 
 award such sums to be paid ; such power rests with the 
 Court (Jv). 
 
 In making a decree for partition, the equitable rights of 
 all the parties interested in the estate have been adjusted ; 
 for instance, effect has been given to an equitable lien on 
 the premises for improvements, and where one of a num- 
 ber of joint owners has received more than his share 
 of the rents of the estate, the Court has directed an 
 account (I). 
 
 4. A partition never affects the rights of third parties. Rights of 
 such as commoners or mortgagees ; and persons having parties not 
 such interests are therefore not necessary parties to the affected, 
 suit (jn) ; and though it has been laid down that the legal 
 
 title should be before the Court (n), this does not seem to 
 have been insisted on ; and now service of notice of a 
 decree under s. 9 of the Partition Act, 1868 (o), will be 
 sufficient to bind persons who formerly were made parties 
 in the first instance. 
 
 5. After a partition in law no conveyances were requisite. Mutual 
 as the rights of all parties were concluded by the judg- ances."^' 
 ment. But in equity, when the shares have been allotted 
 
 to the parties, the partition is perfected by reciprocal con- 
 
 (g) Clarendon v. Hornby, 1 P. v. Johnson, 2 Y. & C. Ex. 586 ; 
 
 Wms. 446 ; Canning v. C, 2 Drew, Lorimer v. L., 5 Madd. 363. 
 436. (ni) Swan v. S., sup. 
 
 (h) Ibid. (n) Miller v. Warmingtmi, 1 J. & 
 
 (i) Clarendon v. Hornby, sup. W. 493. 
 
 (^•) Mole V. Mansfield, 15 Sim. 41. (o) 31 & 82 Vict. c. 40. 
 
 {l) Sioan V. S., 8 Price, 518 ; Story
 
 560 PARTITION. 
 
 veyances ; though hi a case where the shares were minute 
 and complicated, the Court, in order to save expense, in- 
 stead of directing such conveyances, has declared each of 
 the parties trustee as to the shares allotted to the others 
 of them, and then vested the whole trust estate in a single 
 new trustee under the Trustee Acts, with directions to 
 convey to the several parties their allotted shares (jj). 
 Where infants were parties, the conveyances were respited 
 until they came of age, and a day then given them to 
 show cause against the decree ; but now under the Trustee 
 Act, 1850, ss. 7 and 30, the Court may declare the infant a 
 trustee of the shares allotted in severalty to others (q). 
 
 IV. The Partition Acts. 
 Sale before Before the Partition Act, 1868, the Court had iurisdic- 
 
 the Acts. . . . . . . . 
 
 tion in a suit, even where infants were interested, if it 
 appeared for their benefit, to direct a sale instead of a par- 
 tition, if it was desired by the parties sui juris (r). So a 
 sale was directed in a case in which a married woman 
 was interested for her separate use without power of anti- 
 cipation (s). But if one of several tenants in common 
 refused to sell, he could, whatever the consequences to all 
 parties, insist upon a partition {t). 
 
 The powers of Courts of equity in dealing with actions 
 
 for partition have, however, been largely increased and 
 
 improved by the operation of the Partition Acts, 18G8 and 
 
 1876, which are now to be read as one. 
 
 31 & 32 By s. 3 of the Act of 1868 (w), it is enacted that " In a 
 
 ^r ict c 40 
 
 s. 3^ ' ■ ' suit for partition, where, if this Act had not been passed, 
 a decree for partition might have been made, then, if it 
 
 (p) Shepherdv. Churchill, 25 HeSiV. (s) Fleming \. Armstrong, ZiJieay. 
 
 21. 109. 
 
 (q) Bowra v. Wright, 4 De G. & (<) Griffics v. G., 11 W. R. 943. 
 
 Sm. 265. («) 31 & 32 Vict. c. 40. 
 
 (/■) Dacis V. Turtei/, Z2 Eeav. 554.
 
 THE PARTITION ACTS. 561 
 
 appears to the Court that by reason of the nature of the 
 property to which the suit relates, or of the number of 
 parties interested or presumptively interested therein, or 
 of the absence or disability of some of those parties, or of 
 any other circumstance, a sale of the property and distri- 
 bution of the proceeds would be more beneficial for the 
 parties interested than a division of the property between 
 or among them, the Court may, on the request of any of 
 the parties interested, and notwithstanding the dissent or 
 disability of any others of them, direct a sale of the pro- 
 perty accordingly, and may give all necessary or proper 
 consequential directions." 
 
 2. By sect. 4 : " In a suit for partition, where if this and s. 4. 
 Act had not been passed a decree for partition might have 
 been made, then if the party or parties interested indivi- 
 dually or collectively to the extent of one moiety or 
 upwards in the property to which the suit relates request 
 the Court to direct a sale of the property and a distribu- 
 tion of the proceeds, instead of a division of the property 
 between or among the parties interested, the Court shall, 
 unless it sees good reason to the contrary, direct a sale of 
 the property accordingly, and give all necessary or proper 
 consequential directions." 
 
 8. The distinction between these two sections requires Compared, 
 careful notice. The former gives power to the Court to 
 direct a sale on the request of any of the parties interested, 
 if, in the opinion of the Court, a sale would be more bene- 
 ficial than a division of the property. The latter provides 
 that if the parties interested to the extent of a moiety or 
 upwards request a sale, the Court shall sell, unless it sees 
 good reason to the contrary. Thus if the party or parties 
 requesting a sale are interested in less than a moiety of 
 the property, it is for them to prove to the Court the 
 advantage of a sale; and if they succeed in this the Court 
 may so decree. But if the party or parties praying a sale 
 have a moiety or upwards of the interest, then the advan- 
 tage of a sale is prirad facie presumed, and the burden of 
 
 o o
 
 5G2 " PARTITION. 
 
 proving that it is not advantageous is on those who 
 oppose it (x). 
 
 In a case under sect, 3 the Court only regards the question 
 as to whether a sale would or would not be "naore beneficial" 
 for the parties interested in a pecuniary view, and it will 
 not go into questions of sentiment (y). If the advantage 
 of a sale is established, the Court is not restrained from 
 granting it by the fact that only a small proportion of the 
 parties interested request a sale (z). 
 
 Under this section, also, orders for sale have been made 
 at the request of infants (a) and married women {h). 
 
 Under sect. 4 it is imperative on the Court to order a 
 sale, unless it sees good reason to the contrary. The mere 
 fact that the owners of the other moiety oppose the sale is 
 not a reason to the contrary (c), nor is the fact that the 
 income of an infant defendant interested in a moiety might 
 be materially diminished by a sale (d), nor that the owner 
 of one moiety is a yearly tenant of the whole property, and 
 occupies it for commercial purposes and resides thereon (e). 
 See also RougJdon v. Gibson (/). In a case in Ireland, it 
 has indeed been laid down that the only good reason to the 
 contrary is to show affirmatively that there is no difficulty 
 in making an actual partition (g). 
 s- 5, 4. Sect. 5 enacts that " In a suit for partition, where if 
 
 this Act hatl not been passed a decree for partition might 
 have been made, then if any party interested in the pro- 
 perty to which the suit relates requests the Court to direct 
 a sale of the property, and a distribution of the proceeds, 
 instead of a division of the property between or among the 
 parties interested, the Court may, if it thinks fit, unless the 
 
 (a;) Brinkivater v. Ratdiffe, 20 Eq. Eq. 388. 
 
 530 ; Pcmhcrton v. Barnes, 6 Ch. (r) Pemhei'tmi v. Barnes, 6 Ch. 
 
 685 ; Roive v. Gray, 5 Ch. D. 263. 685, 694. 
 
 (y) Drinkimter v. EatcUffe, sup. {d) Boire v. Gray, svp. 
 
 (s) Pemherton v. Barnes, sup. ; (c) Wilkinson v. Joberns, IG Eq. 
 
 Allen V. A., 21 W. R. 842. 14. 
 
 (a) Younrj v. Y., 13 Eq. 175, n. ; (/) 25 W. R. 269. 
 
 France v. F., ihid. 173; Grove v. (g) In re Lanydalc's Estate, bl.R. 
 
 Comyn, 18 Eq. 387. E. 572. 
 
 (b) Davis y. Wietlisbach, cited, 18
 
 THE PARTITION ACTS. 563 
 
 other parties interested in the property, or some of them, 
 undertake to purchase the share of the party requesting a 
 sale, direct a sale of the property, and give all necessary or 
 proper consequential directions ; and in case of such under- 
 taking being given, the Court may order a valuation of the 
 shares of the party requesting a sale in such manner as the 
 Court thinks fit, and may give all necessary or proper 
 consequential directions." 
 
 And by sect. 6 : " On any sale under this Act, the Court and s. 6. 
 may, if it thinks fit, allow any of the parties interested in 
 the property to bid at the sale on such terms as to non- 
 payment of deposit, or as to setting off or accounting for 
 the purchase money, or any part thereof, instead of paying 
 the same, or as to any other matters as to the Court seem 
 reasonable." 
 
 The construction to be put upon sect. 5 was explained Explained, 
 by Sir G. Jessell, M.R., in Drinhivater v, Ratcliffe (h), 
 where it is pronounced to apply to a case not coming under 
 sect. 4, inasmuch as a moiety do not apply for sale, nor 
 under sect. 3, inasmuch as the Court is here supposed to 
 see no reason for preferring a sale to a partition ; in other 
 words, to a case where parties representing less than a 
 moiety apply for a sale, but do not succeed in showing that 
 it is more beneficial than partition. In such circumstances 
 sect. 5 confers a new power on any party to apply for a 
 sale, and declares that he is entitled to it unless the other 
 parties interested, or some of them, undertake to purchase 
 the share of the party requesting a sale. In short, if one 
 party, whatever his interest or reason, desires a sale, the 
 parties objecting must, if the Court thinks fit, either with- 
 draw their objections, or else be prepared to buy his share. 
 But there is nothing to compel a man to sell his share, and 
 it is open for a party requesting a sale, on an offer being 
 made to purchase his interest, to withdraw his request (i). 
 Sect. 5, in fact, gives an entirely new power to any party 
 who is prepared to sell his own interest, to insist upon and 
 
 {h) Sup. (i) WiUiams v. Games, 10 Ch. 204. 
 
 O O 2
 
 564 PARTITION. 
 
 obtain a decree of sale, unless some one is Avilling to buy 
 his share, but does not give to the Court power to compel 
 any party interested to sell his share at a valuation; and 
 if the party rejects the offer of a valuation, he still has his 
 common law right ti) a partition, and all rights conferred 
 by the other sections of the Act, as far as he can bring 
 himself within them (k). 
 
 Conduct As to sect. 6, though as a general rule parties having the 
 
 conduct of a sale are not allowed to bid, this has sometimes 
 been allowed (l). The more proper course, however, would 
 seem to be to give the conduct of the sale to some third 
 pel son, if the parties desire liberty to bid (m). 
 
 ss. 7 & 8. 5. By sects. 7 and 8, sect. SO of the Trustee Act, 1850 (n), 
 is decreed to extend and apply to cases where the Court 
 directs sale instead of partition ; and sects. 23, 24 and 25 
 of the Settled Estates Act, 1856 (o), to money received on 
 such sale : the object of the first provision being to transfer 
 the legal estate, by giving the Court the power to make a 
 vesting order thereof (p) ; and the object of the second, to 
 give power to direct the purchase money to be paid to 
 trustees, and applied by them as directed. 
 
 s. 9. 6. Sect. 9 enacts that, " Any person who if this Act had 
 
 not been passed might have maintained a suit for parti- 
 tion, may maintain such suit against any one or more of 
 the parties interested without serving the other or others 
 (if any) of those parties, and it shall not be competent to 
 any defendant in the suit to object for want of parties ; 
 and at the hearing of the cause the Court may direct such 
 inquiries as to the nature of the property and the persons 
 interested therein and other matters as it thinks necessary 
 or proper, with a view to an order for partition or sale 
 being made on further consideration ; but all persons who 
 
 {k) See Pitt v. Joius, 5 App. C. (ni) Houghton v. Gibson, 25 W. R. 
 
 651, reversing Gilbert v. Smith, 8 Ch. 269. 
 
 D. 548,11 Ch.D. 78, where the whole (n) 13 & 14 Vict. c. 60. 
 
 of the vexed question is fully con- (o) 19 & 20 Vict. c. 120, see now 
 
 sidered and authoritatively decided. 40 & 41 Vict. c. 18, ss. 35 — 37. 
 
 [1) Pennington v. Dalbiar, 18 W. {p) Basnett v. Moxon, 20 Eq. 182. 
 R. 684.
 
 THE PARTITION ACTS. 565 
 
 if this Act had not been passed would have been necessary 
 parties to the suit shall be served with notice of the decree 
 or order on the hearing, and after such notice shall be 
 bound by the proceedings as if they bad been originally 
 parties to the suit, and shall be deemed parties to the suit, 
 and all such persons may have liberty to attend the pro- 
 ceedings, and any such person may within a time limited 
 by general orders apply to the Court to add to tlie decree 
 or order." 
 
 Sect. 10 provides that, " In a suit for partition the Court s. lo. 
 may make such order as it thinks just respecting costs up 
 to the time of hearing." 
 
 Sect. 9 was designed to avoid the diflficulties which had 
 previously often arisen from the non-joinder of all parties 
 interested in the suit. But it was found ineffectual, and 
 in consequence its amendment formed a conspicuous 
 feature of the Act of lb76. 
 
 7. The following doubts which had arisen under the Doubts 
 administration of the Act of 18GS led to fresh legislation : — unde"°the 
 
 It was questioned whether a decree could be made for Act of 
 
 1 sJ^Q 
 
 sale of an estate if the bill contained no prayer for parti- 
 tion, unless it were added by amendment {q). 
 
 To meet this, sect. 7 of 39 & 40 Vict. c. 17, enacted that 39 & 40 
 an action for partition should include an action for sale and j. 7 ' ' 
 distribution of the proceeds, and that it should be sufficient 
 to claim a sale, and not necessary to claim a partition. 
 
 It having been held that a married woman could not 
 enter into an undertaking to purchase under sect. 5 of the 
 Act of 1868 unless her husband joined therein, it was 
 enacted by sect. 6 of the Act of 1876 that in an action for s. 6. 
 partition a request for sale might be made on an under- 
 taking to purchase given on the part of a married woman 
 or other person under any disability by the next friend or 
 other person authorised to act on belialf of such person ; 
 but that the Court should not be bound to comply with 
 
 (q) Teall V. Watts, 11 E>[. 213.
 
 566 PARTITION. 
 
 any such request or undertaking on the part of an infant 
 unless it appeared that the sale or purchase would be for 
 his benefit. 
 
 Notwithstanding section 9 of the Act of 1868, consider- 
 able difficulty arose in cases where persons interested were 
 out of the jurisdiction, it being held that no sale could be 
 ordered unless every person interested in the property was 
 either a party to the cause or had been served witli notice 
 of the decree (p). And where a decree for sale had been 
 made in the absence of such parties, the Court refused to 
 allow it to be acted upon until notice of the decree had 
 been given them by advertisement (q). The Court also 
 refused to decree a sale in the absence of a married woman 
 whose share in the property was vested in trustees (r). 
 
 8. 3. These decisions led to sect. 3 of the Act of 1876, which 
 
 gave the Court discretion to dispense with service on 
 persons whom the Act of 1868 required to be served 
 where it was impracticable, or could not be done but at an 
 expense disproportionate to the value of the property, 
 directing advertisements to be published instead of such 
 service ; and provided that after the expiration of the 
 time limited by the advertisement such persons should be 
 bound by the proceedings in the action, and that the 
 Court might then direct a sale. 
 
 ss. 4 & 5. Sects. 4 & 5 made provision for the payment into Court, 
 further disposal, and ultimate distribution of the purchase- 
 money, in cases in which service had been thus dispensed 
 with. 
 
 V. Costs. 
 
 The rule laid down in Agar v. Fairfax (s) was that 
 no costs would be given until the commission — that is to 
 say, until the hearing — but that the subsequent costs of 
 issuing, executing, and confirming the commission should 
 
 (p) Hurry v. //., 10 Eq. 346. (?•) Doddsv. Gronmo, 20 L. T. 104. 
 
 (7) Peters V. Bacon, 8 Eq. 125. (s) 17 Ves. 533.
 
 COSTS. 567 
 
 be borne by the parties in proportion to the value of 
 their respective interests, without any costs of the sub- 
 sequent proceedings. It has been held that under the 
 Partition Act, 1868, sect. 10, the Court is not bound by 
 the old rule, and may now exercise its discretion (t). 
 Sometimes the old rule has been followed (u.), but the 
 general rule now is that the entire costs should be borne 
 by the parties in proportion to their interests as declared 
 by the decree (v). This is, however, subject to the dis- 
 cretion of the Court under the influence of special cir- 
 cumstances. 
 
 (t) Simpson V. Ritchie,lQ Eq. 103. 14. 
 
 (u) Wilkinson v. Joherns, 16 Eq. (v) Cannon v. Johnson, 11 Eq. 90.
 
 568 SETTLEMENT OF BOUNDARIES. 
 
 Section II. — Settlement of Boundaries. 
 
 Wake V. Conyers. 
 I. Ownership of Soil must be in question. 
 
 II. Proof of Defendant's possession and Plaintiff's 
 
 title, and necessity of equitable relief. 
 
 III. Tliere must be special equitable ground f(yr relief. 
 
 We learn from the leading case of 
 
 WAKE V. CONYERS 
 
 [1 Eden, 331 ; 2 W. & T. L. C. 405] 
 
 some of the essential conditions which are required to create 
 a jurisdiction as to the settlement of boundaries — con- 
 ditions which are not rendered obsolete by the Judicature 
 Act {x). 
 
 Soil must I. There must be a bondb fide dispute as to the owner- 
 
 puted.' s^ip of the soil itself. 
 
 Thus the Court will not issue a commission to ascertain 
 the boundaries of a parish in order to settle a dispute as 
 to tithes {y) or rates {z). 
 
 There being such dispute, relief has been granted where 
 a part of the land in dispute belonged to a charity, and 
 could not be ascertained without inquiry (a). And the 
 jurisdiction has been held to extend to the colonies (6). 
 
 Owner of An owner of a rent has been held entitled to equitable 
 
 reulved. assistance, " on usage of payment," where in consequence 
 of the confusion of boundaries or otherwise, the particular 
 lands on which the rent was charged could not be fixed 
 
 (a;) ZasceZZ€s V. 5</«, 2 Ch. D. 588. (a) Att.-Gen. v. Bowyer, 5 Ves. 
 
 (y) Atkins v. Hatton, 2 Anst. 386. 300. 
 
 (z) St. Luke's V. St. Leonard's, 1 {b) Tidloch v. Hartley, 1 Y. & C. 
 
 Bro. C. C. 40. Ch. 114.
 
 SETTLEMENT OF BOUNDARIES. 569 
 
 upon (c). But the plaintiff must be able to fix upon some 
 part of the land, and say that it is part of the land sought 
 to be charged (d). 
 
 II. In order to claim relief, it is necessary for the plaintiff Plaintiff 
 to show that some portion of the land the boundaries of ^jefeu^- 
 which are alleged to be confused is in the possession of ^^^'^ . 
 
 . . possession, 
 
 the defendant (e). He must also establish, by the admis- and his 
 sion of the defendant or by evidence, a clear title to some °^^ ^^^ ^' 
 land in the defendant's possession (/). He must also show 
 clearly that without the assistance of the Court the 
 boundaries could not be found (g), or at least that failing 
 the assistance of equity a multiplicity of legal actions 
 would be occasioned (h). 
 
 III. The jurisdiction as to the settlement of boundaries There 
 has been very jealously limited to cases in which some equitable 
 equity is superinduced by the act of the parties. It is ^5!""^ ^°^ 
 important to inquire, therefore, what acts constitute a 
 sufficient ground for the jurisdiction. 
 
 If the confusion has been occasioned, not by the negli- Fraud, 
 gence of both, but by the fraud of one of the parties, as 
 by his ploughing or digging too near the other, with the 
 intention of obliterating the boundaries, the Court has 
 jurisdiction (i). 
 
 Where such a relation exists between two parties as Confusion 
 that of tenant and landlord, which makes it the duty of l^^l^ ^^ 
 the tenant to preserve the boundaries, if he permits them 
 to be destroyed, so that the landlord's land cannot be dis- 
 tinguished from his, and specifically restored, he will be 
 compelled, even in the absence of fraud on his part, to 
 substitute land of equal value ; and the land or its value 
 may be ascertained by commission (k). And it seems 
 
 (c) Z>. of Leeds v. Powell, 1 Ves. (g) Miller v. Warmington, 1 J. & 
 
 sr. 171. W. 491. 
 
 {d) Mayor dr. of Basingstoke v. (Ji) Bouverie v. Prentice, 1 Bro. C. 
 
 Bolton, 3 Drew, 50, 63. C. 200. 
 
 (e) Att.-Gen. v. Stephens, 6 De G. {i) Bute v. Glamorgan Canal Co., 
 
 M. & G. Ill, 149. 1 Ph. 681. 
 
 (/) Godfrey v. Littel, 1 Russ. & (h) Att.-Gen. v. FuUerton. 2 V. & 
 
 My. 59 ; 2 ib. 630. B. 264 ; Brown v. Wales, 15 Eq. 142.
 
 .570 SETTLEMENT OF BOUNDARIES. 
 
 that the same result would follow if the confusion was 
 occasioned by a tenant for life (I). Where a confusion of 
 lands was occasioned by a devisor, and they came into the 
 hands of parties whose duty it was to ascertain the boun- 
 daries, a person entitled to part of such lands was allowed 
 to come into equity to establish his claim (m). 
 
 Relief will be granted not only against a party guilty 
 of such neglect or fraud, but also against all claiming 
 under him, either as volunteers or purchasers with 
 notice (n). 
 
 (I) Att.-Gcn. V. Stephens, 6 De G. 701. 
 M. & G. 133. (n) Att.-Gen. v. Stephens, sup. 
 
 {m) Hicks v. Hastings, 3 K. & J. 
 
 \
 
 571 
 
 CHAPTER V. 
 
 SPECIFIC PERFOKMANCE. 
 
 Section I. — Principles of the Jurisdiction. 
 
 I. Generally. 
 II. Grounds for refusing relief. 
 
 1. Fromn the nature of the contract. 
 
 2. From the conduct of the plaintiff. 
 III. Statutory modifications of the Jurisdiction. 
 
 I. The remedy for a breach of contract at common law General 
 is personal only ; the sole redress which it affords to a dis- q""^^ 
 appointed party is damages. Consequently, as far as the jurisdic- 
 coramon law remedy is concerned, it is open to a contract- 
 ing party either to perform the contract or to pay 
 damages, and to choose between these two courses at his 
 pleasure. Equity, on the other hand, has regarded such a 
 remedy as in many cases inadequate ; and deeming a con- 
 tracting party bound in conscience to do exactly what he 
 has agreed to do, has exercised its authority to compel the 
 specific performance of such agreements. 
 
 But it is not in every case that equity will thus interfere. Remedy at 
 The ground of its jurisdiction being the inadequacy of the Jj^^ij^^^^* 
 remedy at law, it follows as a general principle that where adequate, 
 damages at law will give a party the full compensation to 
 which he is entitled, and will put him in a position as 
 beneficial to him as if the agreement had been specifically 
 performed, equity will not interfere.
 
 572 
 
 SPECIFIC PERFORMANCE. 
 
 Equity 
 
 regarilsthe «• . i 
 
 substance, finecteu 
 
 not the 
 
 forui. 
 
 The juris 
 diction is 
 discre- 
 tionary. 
 
 The jurisdiction is not, however, depended upon or 
 by the form or character of the contract. It 
 suffices that the transaction in substance amounts to and 
 is intended to be a binding agreement for a specific 
 object. Thus if a bond with a penalty is made upon con- 
 dition to convey certain lands upon the payment of a certain 
 price, it will be deemed in equity an agreement to convey 
 the land at all events, and not to be discharged by the 
 purchaser's election to pay the penalty, although it has 
 assumed the form of a condition only (a). It suffices that 
 the primary object of the parties is the transfer of the pro- 
 perty, and if that requires specific performance, the penalty 
 will be regarded only as a security for its attainment (b). 
 
 Further, the exercise of the jurisdiction of equity to 
 grant specific performance is always discretionary. The 
 mere fact that the legal remedy is not adequate relief for 
 the breach of a contract is not in itself sufficient to give to 
 a plaintiff a claim as of right to the assistance of a Court 
 of equity. The Court v^^ill always look at all the facts of 
 the case, and will direct or refuse its action accordingly ; 
 and it may well be that something in the circumstances 
 of the case, or in the position or conduct of the parties, 
 will prevent the granting of the relief where the nature of 
 the agreement would seem to afford good ground for seek- 
 ing it. 
 
 II. Before proceeding, therefore, to particularly examine 
 refusino-^ the operation of the doctrine of specific performance, it 
 will be convenient to inquire what are the circumstances 
 which will, on general grounds, induce equity to refuse its 
 assistance. These circumstances relate eitlier to the nature 
 of the contract or to the conduct of the parties. 
 1. From the nature of the contract. 
 Agree- (1.) The agreement must be a legal one. 
 
 be"le<'.™"'^ There is clearly no jurisdiction in equity to enforce an 
 agreement which the law will not recognise at all. It is. 
 
 I 
 
 General 
 
 specific 
 perform- 
 ance. 
 
 (a) French v. Macccde, 2 Dr. & W. 
 269, 27 i; sup. p. 212. 
 
 (6) Story, 715.
 
 GENERALLY. 573 
 
 as we shall see, often a ground for equitable relief that 
 there is no remedy at law owing to the neglect of some 
 formal provision, such as the writing or signature of a party, 
 while nevertheless the circumstances are such as to render 
 it inequitable for the party to avail himself of such a 
 defence, and thus to refuse performance. But it is obvious 
 that the neglect of such a legal provision cannot make a 
 contract any better than it would have been if that pro- 
 vision had been complied with. Thus, though the Court 
 will in some cases enforce parol arrangements in the nature 
 of a trust, it cannot do so when the trust or understanding 
 is designed to compass what is illegal — as, for instance, to 
 hold land for the purposes of a charity in evasion of the 
 Mortmain Act (c). Nor will it enforce an agreement which 
 would result in the commission of a fraud, or which calls 
 upon a man to do what he is not competent to do (d), still 
 less an immoral agreement. Where a contract has been 
 divisible, part being legal and part illegal, the legal part 
 has been eu forced (e). Similarly, specific performance has 
 been refused when to enforce it would be to compel the 
 defendant to commit a breach of a prior agreement with 
 another person (/), and where performance would give rise 
 to a fraud on the public (g). 
 
 (2.) On the same principle, an agreement without con- On good 
 sideration cannot be enforced — as, for instance, where a l^^^^'' 
 person by voluntary settlement covenants to convey lands, 
 and afterwards refuses to do so, or disposes of the lands 
 otherwise by his will (h). Here, again, none of the circum- 
 stances which constitute a claim upon equity for assistance 
 can make the agreement any stronger than it would have 
 been at law. 
 
 (8.) There must be a completed agreement, and the Complete 
 
 (c) 9 Geo. 2, c. a6 ; Stickktnd v. (/) Willmott v. Barber, 15 Ch. D. 
 Aldridge, 9 Ves. Bi6. 96. 
 
 (d) Harnett v. Yeildhig, 2 S. & L. {[/) Post v. Marsh, 16 Ch. D. 395. 
 549. (fi) Jefferys v. J., Cr. & Ph. 138 
 
 (e) Odessa (kc. Co. v. Mendel, 8Ch. 141 ; Price v. Jenkins, 4 Ch. D. 483. 
 D. 235.
 
 574 SPECIFIC PERFORMANCE. 
 
 iind not terms of it must be certain and unambiguous (i). But in 
 
 ambiguous. i ,i • i • , , 
 
 some cases where the evidence was m some respects contra- 
 dictory, the Court has decreed performance, at the same 
 time directing inquiries to ascertain the precise terms about 
 which the parties differed (k); and it is not necessary to 
 prove terms which are immaterial — e.g., an agreement to 
 do an act which has been already done, or which would be 
 enforceable apart from such stipulation (I). 
 Reason- (4.) Equity will not interfere to assist a contract which 
 
 not pre- i^ Unreasonable or prejudicial to third parties interested in 
 j"^^^^l *^o i\iQ property (m), and though mere inadequacy of con- 
 persons, sideration is not of itself a sufficient ground for refusing 
 specific performance (n), equity has refused to enforce 
 where to do so would work great hardship on the defend- 
 ant (o), or would cause a forfeiture (p) ; but in general if 
 hardship is made a ground of defence, it ought to be 
 proved that it existed at the date of the contract (q). 
 Not pro- (.5.) A contract will not be enforced when future litiga- 
 future^ ^ tion is likely to result from its performance — for instance, 
 litigation, forcing a doubtful title upon a purchaser (r), or where 
 there are other conflicting claims likely to harass the pur- 
 chaser (s). 
 Possible of (6.) Nor will specific performance be decreed of a con- 
 ance°'^"^' tract which it is impossible to perform, or the material 
 terms of which the Court has it not in its power to 
 enforce {t). 
 
 2. As to the conduct of the parties. 
 
 The (1.) It is a general rule of equity that a plaintiff must 
 
 plaintiff 
 
 (i) Swaisland v. DearsUy, 29 Beav. 600 ; 8 Beav. 103 ; Watsmi v. Mars- 
 
 430 ; Tatham v. Piatt, 9 Ha. 660 ; tm., 4 De G. M. & G. 230. 
 
 Taylor v. Portington, 7 De G. M. & (p) Peacock v. Penson, 11 Beav. 
 
 G. 328. 355. 
 
 Ik) MoHimer v. Orchard, 2 Ves. jr. (q) Wehh v. L. cb P. R. Co., 9 Ha. 
 
 243 ; Chattock v. Midler, 8 Ch. D. 129. 
 
 177. ('■) Rogers v. Waterhouse, 4 Drew, 
 
 (I) Gregory v.Mighell,18 Yes. B28. 329; Parkin v. Tkwold, 16 Beav. 
 
 (vi) Thomas v. Dering, 1 Keen, 59, 67. 
 
 729; Bee»ton v. ."itutely, 6 W. R. 206. (s) Peglei- v. WhUe, 33 Beav. 403. 
 
 (n) llayu-ood v. Cojte, 25 Beav. [t) Green v. Smith, 1 Atk. 572, 
 
 140 ; tiuUivan v. Jacoh, 1 Moll. 477. 573 ; Waring v. M. S. <L- L. R. Co., 
 
 (o) Wedgwood v. Adams, 6 Beav. 7 Ha. 483, 492. 
 
 I 
 
 I
 
 GENERALLY. 575 
 
 come with clean hands. The Court will never coimten- m"st come 
 ance fraud. If, therefore, a plaintiff has been guilty of hands, 
 any wilful misrepresentation, or fraudulent suppression of 
 the truth, he will get no relief (u). And if he has obtained 
 tlie agreement by misrepresentation, he will not be able 
 to get specific performance on waiving the part affected by 
 the misrepresentation, and asking for performance piv 
 tanto. Such conduct operates as a personal bar (v). But 
 a mere indefinite misrepresentation, such as ought to put 
 a person upon inquir}^, will not so operate (x). So, also, 
 though suppression of truth may be a bar (y), the mere 
 suppression of acts having been done by the plaintiff, when 
 the defendant must have known they were done by some- 
 body, is not sufficient (z). So if the plaintiff has induced 
 the defendant to take too much drink, and then taken 
 advantage of him, not only would specific performance be 
 refused, but the contract would be rescinded (a) ; and if, 
 though the plaintiff were innocent of inducing the de- 
 fendant to drink, he was so intoxicated as to be incapable 
 of exercising sound judgment, that would alone prevent a 
 decree for specific performance (b). 
 
 (2.) Vigilantihus non dormientibus cequitas subvenit. ^"^ 
 A plaintiff must come within a reasonable time with his 
 demand. Laches will disentitle hliii to assistance (c). 
 Especially is this the case when the subject-matter of the 
 contract is an article of fluctuating value ; so that delay 
 may greatly change the aspect of the bargain (d). 
 
 III. It will be convenient also here to call attention to Statutory- 
 certain statutes which have affected the jurisdiction in tions of 
 
 (m) Drijsdale v. Mace, 5 Ue G. M. 12. 
 
 & G. 10-5'; Falcke v. Grat,; 4 Drew, (b) Craggw. Holme, cited, 18 Ves. 
 
 651 ; Plaiiford v. P., 4 Ha. 546. 14 ; but see Liqhtfoot v. Heron, 3 
 
 {v) Clermont v. Tcushurgh, 1 J. & Y. & C. Ex. 586. 
 
 W. 112. ((■) Moore V. Blake, 1 Ball & B. 62 ; 
 
 (x) Fentonv. Browne, liYea. 144; Smith v. Clay, 3 Bro. C. C. 640; 
 
 Attvood V. Small, 6 C. & F. 232. £ads v. Williams, 4 De G. M. & G. 
 
 (y) Shirley v. Str.tfton, 1 Bro. C. C. 674, 691. 
 
 440. ((/) Pollard v. Clayton, 4 K. & .J. 
 
 {x) Haytcood v. Cope, sup. 4G2. 
 
 (a) Cooke v. Clayimrth, 18 Vts.
 
 576 
 
 SPECIFIC PERFORMANCE. 
 
 the juris- 
 diction. 
 
 Cairns' 
 Act, 21 I 
 22 Vict. 
 c. 27. 
 
 Effects of 
 this Act. 
 
 these matters, particularly the Chancery Amendment Act, 
 21 & 22 Vict, c, 27, commonly known as Lord Cairns' 
 Act. 
 
 (1.) By 21 & 22 Vict. c. 27, which took effect from and 
 after the 1st of November, 1858, it is enacted that in all 
 cases in which the Court of Chancery has jurisdiction to 
 entertain an application for an injunction against a breach 
 of any covenant, contract, or agreement, or against the 
 commission or continuance of any wrongful act, or for the 
 specific performance of any covenant, contract, or agree- 
 ment, it shall be lawful for the same Court, if it shall think 
 fit, to award damages to the party injured, either in addi- 
 tion to or in substitution for such injunction or specific 
 performance, and such damages may be assessed in such 
 manner as the Court shall direct. It also provides means 
 for the assessment of damages and the trial of questions 
 of fact either by a jury before the Court itself or by the 
 Court alone, or for the assessment of damages by a jury 
 before any judge of one of the Superior Courts of Common 
 Law at nisi prius, or before the sheriff of any county or 
 city. 
 
 With reference to the construction and application of 
 this Act, the following points seem to be settled : — 
 
 (i.) That the statute does not extend the jurisdiction of 
 the Court to cases where there is a plain common law 
 remedy, and where before the statute it would not have 
 interfered (e). In other words, the Court could not under 
 the Act award damages save in cases where it had juris- 
 diction to decree specific performance. It can give 
 damages in lieu of, or in addition to, specific performance ; 
 but this ability brings no new matter within the principle 
 of specific performance (/). 
 
 (ii.) Where, however, the Court has jurisdiction to grant 
 specific performance, it may award damages for non-per- 
 formance of part of the contract, in respect of which part 
 
 (e) Wiclcs 
 380. 
 
 V. Hunt, Johns. 372, 
 
 (/) Rogers v. Challis, 27 Beav. 175; 
 Leioers v. Shaftesbury, 2 Eq. 270.
 
 GENERALLY, 577 
 
 it could not have enforced specific performance. For 
 example, though, as we shall see, there is no jurisdiction 
 to decree specific performance of a contract to build a 
 house, the remedy at law being complete, yet if a plaintiff 
 asks for specific enforcement of an agreement whereby he 
 undertook to grant and the defendant to take a lease as 
 soon as the defendant should have built a new house on 
 the land, the plaintiff may be awarded damages for the 
 non- building of the house at the same time that he 
 obtains a decree for specific performance of the agreement 
 to accept a lease ((/). 
 
 (iii.) A plaintiff will not be entitled to damages if he 
 has done any act which would disentitle him to specific 
 performance (h). 
 
 (iv.) Though, as a general rule, damages will be 
 awarded only as incidental to granting specific perform- 
 ance or an injunction, yet damages may be given where 
 the evidence is insufficient to procure a mandatory in- 
 junction (i). 
 
 (v.) The power to give damages being discretion- 
 ary, the Court may refuse to give damages where the 
 question of damages can be more satisfactorily tried at 
 law (/v). 
 
 (2.) By 25 & 26 Vict. c. 42, the Court of Chancery may, Eolfs Act, 
 in its discretion, direct an issue to be tried at the assizes vict. c, 42. 
 or at nisi prius, where the circumstances render such a 
 course advisable. 
 
 (3.) By the Judicature Act, 1873 (/), s. 34, all causes Judicature 
 and matters for the specific performance of contracts ' 
 between vendors and purchasers of real estates, including 
 contracts for leases, are assigned to the Chancery Division 
 of the High Court of Justice. 
 
 Another division of the High Court may, in a proper case. 
 
 (g) Soames v. Eck/e, Johns. 669. Tennant, 9 Ch. 212. 
 
 \h) Collins V. Stuteley, 7 W. R. (k) Durell v. Pritchard, 1 Ch. 
 
 710. 244. 
 
 (i) City of London Brewery v. (I) 36 & 37 Vict. c. 66. 
 
 P P
 
 578 SPECIFIC PERFORMANCE. 
 
 transfer a cause in which a question of specific performance 
 arises to the Chancery Division (i7i). 
 
 Having regard to these preliminary matters, we proceed 
 to consider the general operation of the doctrine of specific 
 performance, illustrated by the leading decisions on the 
 subject. 
 
 {vi) Hilman v. Mayhew, 1 Ex. D. 132.
 
 CONTRACTS RELATING TO LAND. 579 
 
 Section II. — To what Contracts the Remedy is 
 Applied. 
 
 I. Contracts relating to Land. 
 
 II. Contracts relating to Personal Chattels. 
 
 Cuddee v. Eutter. 
 
 1. General rule. 
 
 2. Sj^ecial circumstances giving Jurisdiction. 
 
 Pusey V. Pusey. 
 Somerset v. Cookson. 
 
 III. Contracts respecting Personal Acts. 
 
 I. Contracts relating to Land. 
 
 1. It has been said that where a contract in writing General 
 respecting real property, in conformity with the Statute of ^^^^^^^^^ 
 Frauds, is entered into between competent parties, and is, specific 
 moreover, in its nature and circumstances unobjectionable, ance!"^"^' 
 it is as much, of course, for a Court of equity to decree 
 specific performance, as it is for a Court of common law to 
 
 give damages for the breach of such a contract (o), and 
 the fact that the lands in question are situate out of the 
 jurisdiction is no bar to the remedy (p). 
 
 2. We elsewhere fully discuss the action of the Courts Defence of 
 of equity in those cases in which the Statute of Frauds yi^^ds ° 
 has not been complied with, but in which it is neverthe- "'/'•«, 
 less deemed equitable to assist the plaintiff; and under 
 
 this head it therefore now only remains to call attention 
 to certain special circumstances under which the jurisdic- 
 tion has been appealed to. 
 
 8. Considerable discussion has taken place respecting Contracts 
 contracts by railway companies to take lands under the lands '^ 
 statutory powers conferred upon them, and it is settled under 
 
 (o) Hall V. Warren, 9 Ves. 605, {p) Pcnn v. Baltimore, sup. p. 11. 
 
 608. 
 
 P P 2
 
 5S0 
 
 SPECIFIC PERFORMANCE. 
 
 statutory 
 powers. 
 
 Effect of 
 notice to 
 treat. 
 
 Agree- 
 ments for 
 leases and 
 mortgages, 
 
 that sucli companies are equally with private individuals 
 amenable to the enforcement of specific performance at 
 the suit of the vendor. This has been put upon the basis 
 of mutuality of remedy : the Company being able to 
 compel the transfer, the vendor has on his side a right 
 to insist on the specific performance of the contract (q). 
 Where also a railway company has given notice to treat 
 for land, and the price has been fixed by the landowner 
 and the Company, or by arbitrators under the Lands 
 Clauses Consolidation Act, the railway company is treated 
 as an ordinary purchaser, and will be compelled in equity 
 to complete the purchase (r). So also, if after notice to 
 treat the company has paid the purchase money for lease- 
 holds, and has with the consent of the lessee been admitted 
 into possession, it will at the suit of the lessee be com- 
 pelled to accept an assignment with the usual cove- 
 nants (s). 
 
 When a railway company has given notice to treat for a 
 portion of a piece of land, and the landowner has in reply 
 given notice to the company to take the whole, it is open 
 for the company then to withdraw from the notice to treat, 
 and this even after action brought by the landowner for a 
 declaration made in accordance with his notice, and not- 
 withstanding that the company has previous to the action 
 brought given notice of intention to apply for the appoint- 
 ment of a surveyor to ascertain the value of the whole of 
 the land (t). If, however, the declaration prayed for has 
 been made, specific performance will be decreed (u). 
 
 4. Agreements to grant leases or mortgages in conside- 
 ration of money due are frequently the grounds of suits 
 for specific performance (x). But equity will not enforce 
 the granting of a lease, when the lease, if granted, might 
 be determined at once for a breach of a covenant which 
 
 (7) Doherty v. Waterford d- 
 Limerick Hail wet)/, 13 Ir. Eq. 538. 
 
 (r) Harvey v. Met. R. Co., 7 Ch. 
 154. 
 
 (s) Ibid. 
 
 {t) Griersonv. Cheshire Lines' Com., 
 19 Eq. 83. 
 
 (m) Marson v. L. C. tfc B. R, 7 
 Eq. 546. 
 
 (x) Hermann v. Hodges, 16 Eq. 18.
 
 CONTRACTS RELATING TO PERSONAL CHATTELS. 581 
 
 the plaintiff has ah-eady broken {y). And it has refused 
 to enforce an agreement for a yearly tenancy, on the ground 
 of the adequacy of the legal remedy {z). 
 
 II. Contracts relating to Personal Chattels. 
 
 1. These are distinguishable from contracts relating to General 
 
 T f • 
 
 land, not by any difference in the principle on which they ^Jq^ ^^^^ 
 are treated, but because from their nature a breach thereof contracts 
 has usually a complete remedy at law. land. 
 
 The leading authority respecting this part of the sub- 
 ject is 
 
 CUDDEE V. RXJTTER. 
 [5 Vin. Ab. 538, pi. 21 ; 1 W. & T. L. C. 848.] 
 
 This was a bill to transfer £1,000 South Sea Stock 
 which the defendant had agreed to transfer at the rate of 
 104 per cent. Before the time specified for the delivery 
 the stock rose largely in value ; the defendant did not 
 deliver the stock, but offered to pay the difference, and so 
 submitted by his answer. Lord Chancellor Parker dis- 
 missed the bill on the ground that one £1,000 stock was 
 as good as another, which the plaintiff might have bought 
 of any person on the same day. If the plaintiff, therefore,, 
 had accepted payment of the difference from the defendant,, 
 he would not have suffered at all by the fact that the 
 agreement was not specifically performed. The case was 
 very different from that of lands of which one parcel could 
 rarely be substituted for another with the same convenience 
 to the purchaser, though it might be of the same market 
 value. 
 
 2, The legal remedy therefore being adequate, there is Specific 
 generally no ground for the exceptional and discretionary ance only 
 interference of equity in contracts respecting personal granted in 
 chattels. Special circumstances may, however, induce the circum- 
 Court to decree specific performance of such contracts ; stances. 
 
 {ij) Jones V. /., 12 Ves. 1S6, 188. (:) Clayton v. llllnfjicorth, 10 Ha. 151.
 
 582 SPECIFIC PERFORMANCE, 
 
 and these may be classed under three heads ; first, where 
 
 there is some peculiar difficulty in applying the legal 
 
 remedy ; secondly, where there is some peculiarity in the 
 
 position of the parties, which gives a special claim for 
 
 equitable assistance ; thirdly, where the jurisdiction arises 
 
 from the peculiarity of the subject-matter of the contract. 
 
 (1.) Where (1.) In the following cases, the difficulty of applying the 
 
 difficulty legal remedy was held to give jurisdiction to equity to 
 
 in applying i^gig^ qu Specific performance. 
 
 remedy. In Taylor V. Neville (a) specific performance was 
 
 ^■9- i° . decreed of a contract for sale of 800 tons of iron to be 
 
 estimating . . . . 
 
 the delivered and paid for in a certain number of years, and 
 
 damages. -^^ instalments, Lord Hardwicke stating as the reason of 
 his decision that as the profit upon the contract depended 
 upon future events, it could not be correctly estimated in 
 damages, but a calculation thereof could only proceed upon 
 conjecture. 
 
 For a similar reason specific performance was decreed of 
 a contract to pay the plaintiff a certain annual sum for his 
 life, and also a certain other sum for every hundredweight 
 of brass wire manufactured by him during his life at cer- 
 tain mills (h). 
 
 In Buxton v. Lister (c) Lord Hardwicke puts the case 
 of a ship's carpenter purchasing timber which was pecu- 
 liarly convenient to him by reason of its vicinity, and also 
 the case of an owner of land covered with timber contract- 
 ing to sell the timber in order to clear the land, and 
 assumes that as damages would not be a complete remedy, 
 specific performance of such contracts would be decreed. 
 
 In Adderley v. Dixon (d) specific performance was, at 
 the suit of the vendor, decreed of an agreement to pur- 
 chase certain debts which had been proved under two 
 commissions of bankruptcy, on the ground that damages 
 at law could not accurately represent the value of the 
 future dividends, and could only be conjectural. 
 
 (a) Cited in Buxton v. Lister, 3 140. 
 Atk. 384. (r) Sup. 
 
 (b) Ball V. Coyrjs, 1 Bro. P. C. ((/) 1 S. & S. 607.
 
 CONTRACTS RELATING TO PERSONAL CHATTELS. 583 
 
 Similar principles have led to the enforcement of con- 
 tracts for the purchase of annuities (<?), and of a patent (/). 
 
 (2.) Jurisdiction is sometimes founded on some special [giation^ 
 relation between the parties. between 
 
 (i.) Thus, on the ground that the remedy ought to be -^^^^^^ ^^^' 
 mutual, a plaintiff is sometimes assisted, when it might must be 
 have been thought that damages would have completely 
 compensated him. This argument was used in Adderley 
 V. Dixon (g) above quoted, and also in the cases respecting 
 annuities, where the vendor was assisted, though his de- 
 mand was only for a money payment. The same principle 
 was reUed on in the suits against railway comjDanies for 
 the completion of purchases of land, already discussed. 
 And it seems established that where one party to a contract 
 has a right to ask for specific performance, the other party 
 will also be entitled to similar assistance, notwithstanding 
 that a simple money payment would seem to indemnify 
 him. 
 
 (ii.) Again, if a trust be created, the circumstance that Trusts, 
 the subject-matter of the trust is a personal chattel will 
 not prevent the Court from enforcing due execution of the 
 trust, whether against the trustees or persons obtaining 
 possession of the property with notice (h). 
 
 (iii.) The relation of princij)al and agent and other Principal 
 similar relations have also been held to be sufficient to ^° ^^^^ * 
 move a Court of equity where it would otherwise have left 
 the pai'ties to law. Where a fiduciary relation subsists 
 between the parties, whether it be the case of an agent, 
 or a trustee or a broker, or whether the subject-matter be 
 stock or cargoes or chattels of whatever description, the 
 Court will interfere to prevent a sale, either by the party 
 entrusted with the goods, or by a person claiming under 
 him (i). 
 
 (e) Clifford v. Turrell, 1 Y. & C. (ff) Sup. 
 
 C. 138; Kenneyv. Tr<y;A«;«, 6 Madd. (h) Pooky v. £udd, 14 Beav. 34, 
 
 355. 43, 44 ; Stanton v. Percivcd, 5 H. L. 
 
 (/) Cogent v. Gibson, 33 Beav. 257. 
 557. (?■) Wood V. Botvdiffe, 2 Ph. 382.
 
 584 SPECIFIC PERFORMANCE. 
 
 (3.) Pecu- (3.) The cases most frequently referred to as illustrating 
 the subject the interference of equity in a transaction respecting 
 matter. chattels on the ground of the peculiarity of the subject- 
 matter of tlie contract are 
 
 PUSEY V. PUSEY 
 
 [1 Vern. 273 ; 1 W. & T. L. C. 890], 
 and 
 
 SOMERSET V. COOKSON 
 
 [3 P. Wms. 389 ; 1 W. & T. L. C. 891]. 
 
 In the former of these cases the unique Pusey horn was 
 ordered to be specifically delivered up to the plaintiff, and 
 in the latter a curious Greek altar piece. It is clear that 
 it would be a most insufficient remedy to decree payment 
 of the intrinsic value of such articles as these, which could 
 not at any price be replaced. 
 Heirlooms, (i.) These cases are typical of one division of this class. 
 Heirlooms, and chattels of unique character, may evidently 
 be said to partake of the quality of land in that they may 
 be of much greater value to one person than to another. 
 Their value to a given person is not estimable in damages (Jc). 
 Within the same principle have been included pictures and 
 other works of art {I). But where by the terms of the 
 agreement and the frame of the pleadings, the plaintiff, 
 seeking restitution of a picture had in effect put a fixed 
 price upon it, it was held that damages would be an ade- 
 quate remedy, and equity refused to interfere {m). 
 Deeds and (ii.) On the same principle the Court will order the 
 wn mgs. jgijygj.y yp Qf specific deeds and writings to the persons 
 legally entitled thereto {n). 
 
 In suits of this nature it is not necessary in equity as it 
 was in law to prove conversion or resistance to deliver them 
 up when sought to be recovered (o). 
 
 (k) FeUs V. Read, 3 Ves. 70. son v. Butler, 2 Atk. 306 ; Recce v. 
 
 [l) FalcTce v. Gray, 4 Drew, 651, Trye, 1 De G. & Sm. 273 ; Gibson v. 
 
 B.'iS ; Bowliny v. Betjemann, 2 J. & Ingo, 6 Hare, 112. 
 
 H. 544. [o) Turner v. Letts, 20 Beav. 185, 
 
 (m) Ihkl. 191. 
 
 (n) Broion v. B., 1 Dick. 62 ; Jack-
 
 CONTRACTS RELATING TO PERSONAL CHATTELS. 585 
 
 (iii.) More numerous are the cases which have arisen out ^^^^^^^j^ 
 of contracts for the sale of shares in railways and joint- companies, 
 stock companies. In Dwncuft v. Alhrecht (p) a distinction 
 was drawn between railway shares and public stock, the 
 former being limited in number, and not always obtain- 
 able (q). Shares in a joint-stock company have been 
 similarly dealt with (r), and it was considered no bar to 
 the jurisdiction that by the deed of settlement, share- 
 holders could only transfer their shares in such a manner 
 as the directors should approve. On the other hand, 
 specific performance has been refused where the directors' 
 assent, which was necessary in order to place the purchaser's 
 name on the register, has been refused (s), though if the 
 directors wantonly or unreasonably refused to admit a 
 purchaser, the Court might compel them to do so and 
 enforce specific performance of the contract (t). 
 
 An agreement to accept a transfer of railway shares on 
 which nothing has been paid may be enforced, as an agree- 
 ment for valuable consideration, in consequence of the 
 liabilities to which the purchaser is subjected, and from 
 which the vendor is relieved upon the transfer (u). And 
 where specific performance has been decreed of a contract 
 to purchase railway shares, the Court will order the pur- 
 chaser to pay any calls that have been made since the sale, 
 to indemnify the vendor against all future calls in respect 
 of the shares, and to take proper measures to procure him- 
 self to be registered (x). 
 
 An ao^reement to accept shares in a joint-stock company Agree- 
 
 ^ . . . . -,. r J ments to 
 
 will be specifically enforced in equity, if the directors are accept 
 prompt in instituting proceedings for that purpose (v/) ; and '^^^^"^• 
 
 (p) 12 Sim. 189. Chartered Bank, 1 Eq. 32. 
 
 (q) Shaw v. Fisher, 2 De G. & Sm. («) Vheale v. Kenward, 3 De G. & 
 
 11, J. 27. 
 
 (r) Poole V. Middleton, 29 Beav. (x) Wf/njie v. Price, 3 De G. & 
 
 646. Sm. 310. 
 
 (s) Bermingham v. Sheridan, 33 (i/) New Brunswick oDc. Co. v. 
 
 Beav. 660. Mmjrjeridfje, 4 Drew, 686 ; Oriental 
 
 (t) lb. 665 ; Robinson v. The <Lr. Co. v. Briyys, 2 J. & H. 625,
 
 586 SPECIFIC PERFORMANCE. 
 
 in the absence of deception it is no objection that a call 
 has been made on the shareholders, of which the purchaser 
 had no notice (z). 8ecus if the purchase was made, or 
 even the money paid and a transfer executed in ignorance 
 that a winding-up petition had been presented (a). 
 
 Ships. ^iv.) The Acts for the regulation of British shipping (6) 
 
 have modified the action of equity as to the contracts 
 respecting British ships. As, under the operation of the 
 Acts there can be no transfer in equity which is not a 
 transfer at law, equity will not enforce a contract for the 
 purchase of a British ship or of shares therein (c). But 
 since 25 & 26 Vict. c. 63, it has been decided that where 
 there has been a complete transfer of a ship there is 
 nothing in the previous Act which prevents the transferor 
 from showing that the real intention of the parties was 
 that the instrument should operate as a security only for 
 the money advanced (d). The provisions of the Ship 
 Registry Acts apply equally to contracts and sales, and 
 negative any equity resulting out of the doctrine of 
 notice (e). The Court has jurisdiction to compel a foreigner 
 to specifically perform a contract for sale of a foreign 
 ship(/). 
 
 Goodwill (v.) Where the goodwill of a business is altogether or 
 ' principally annexed to the premises on which it is carried 
 on, a contract for the sale of the goodwill and premises may 
 be enforced in equity (g) ; but the Court will not decree 
 specific performance of a contract for the sale of the good- 
 will of a business unconnected with the premises (h). 
 
 Sales at a (vi.) We may here conveniently treat of contracts for 
 sale at a price to be determined by arbitration or valuation. 
 In these cases, unless the price be fixed in the manner 
 determined upon so as to be made part of the agreement, 
 
 (z) Ilaivkim v. Mcdthy, 3 Ch. 188 ; {d) Ward v. Beck, 9 Jur. N. S. 912. 
 
 4 Ch. 200, 202. [c] McCcdmont v. Rankin, 2 De G. 
 
 (a) Emviei-aon's Case, 1 Ch. 433. M. & G. 403. 
 
 (h) 8 & 9 Vict. c. 89 ; 17 & 18 Vict. (/) Hart v. He^'wig, 8 Ch. 860. 
 
 c. 104. ((j) C'ruttivell v. Lye, 17 Ves. 335. 
 
 (c) Ihiqhes V. Mwris, 2 De G. M. (h) Baxter v. Conolly, 1 J. & W. 
 
 & G. 349. 576.
 
 CONTRACTS RELATING TO PERSONAL ACTS. 587 
 
 specific performance will not usually be decreed (i). But 
 if the vendor refuses to allow a valuer to enter to make a 
 valuation, the Court will make a mandatory order to com- 
 pel the vendor to allow him to enter, and to enable the 
 valuation to proceed (k). And where the fixing of the 
 value by arbitrators is not of the essence of the agreement, 
 the Court will carry the agreement into effect, and will, 
 itself, if necessary, ascertain the value (I). 
 
 III. Contracts relating to Personal Acts. 
 
 1. Of these we will consider first, as being of a somewhat Acts^ 
 special nature, contracts to perform certain acts relating to land. ° 
 land, such as contracts to build or repair. 
 
 As a general rule, such contracts will not be specifically Contracts 
 enforced (m). In the first place, the legal remedy is repair not 
 usually sufficient ; secondly, it would be almost impossible generally 
 for the Court to carry out its decree if made (w). Where 
 the agreement to build or repair is incidental to a contract 
 of which the specific performance would be ordinarily 
 decreed, such as a contract to grant a lease, the Court will 
 decree specific performance as regards the lease, and at the 
 same time, if necessary, direct an inquiry as to damages 
 under Lord Cairns' Act as above described (o). 
 
 Nevertheless, the Court has jurisdiction to decree per- Excep- 
 formance of certain works, where damages would not be an 
 adequate remedy. Thus a railway company has been 
 decreed to construct and maintain an archway under an 
 embankment which traversed the plaintiff's property {p). 
 In this and other similar cases, one motive which induces 
 equity to relieve is the inability of the plaintiff to enter on 
 
 (i) Milnes v. Gery, 14 Ves. 400 ; 348 ; .S'. W. R Co. v. Wi/thcs, 1 K. 
 
 Richardson v. Smith, 5 Ch. 648. & J. 186. 
 
 (k) Smith V. Peters, 20 Eq. 511. (o) Middleton v. Greenwood, 2 De 
 
 (I) Dinham v. Bradford, 5 Ch. 519. G. J. & S. 142. 
 
 (m) Errington v. Ayneslei/, 2 Bro. ( p ) Storer v. G. W. R. Co., 2 Y. 
 
 C. C. 341. & C. C. C. 48. 
 
 {n) Brace v. Wehncrt, 25 Beav.
 
 588 SPECIFIC PERFORMANCE. 
 
 the land to do the work at his own cost, and so to ascer- 
 tain the damages sustained by n on -performance (g). Again, 
 where there have been acts amounting to part performance 
 of the contract, the Court will decree specific performance 
 which it might otherwise have refused (r). 
 Modern The general tendency of modern decisions is towards 
 
 in^favour granting the relief thus sought if possible (s). Hence it 
 
 of ^'ranting i^ag been held no defence to an action against a railway 
 relief. . . 
 
 company that specific performance would occasion great 
 inconvenience to the public (t), or that the contract was 
 ultra vires, or that the Attorney- General was a necessary 
 party, as representative of the public {a). 
 
 As to part- 2. Passing now from contracts for works on land, we note 
 qj. ^j^^^ Courts of equity will not, as a rule, decree specific 
 performance of an agreement to enter into and carry on a 
 partnership {x). This rule has been sometimes departed 
 from ; for instance, where the agreement was for a partner- 
 ship for a fixed and definite time, and there had been a part 
 performance (?/); but to warrant it the circumstances must 
 be strong {z). 
 
 Hiring and 3. Again, as contracts of hiring and service are of a 
 confidential character, and cannot, therefore, advantageously 
 be enforced against an unwilling party, equity now refuses 
 to decree specific performance of them (a). The same 
 remark applies to the contract of agency (b). 
 
 Separation 4. On Special grounds agreements for separation of 
 husband and wife, with the execution of the necessary deeds, 
 will be enforced, provided there be a good consideration to 
 support the contract ; as, for instance, acovenant by trustees 
 
 (q) South Wales R. Co. v. Wythes, {x) Scott v. Rai/ment, 7 Eq. 112. 
 
 1 K. & J. 186, 200. (y) Anon., 2 Ves. sr. 629 ; Eng- 
 
 (r) Price v. Corp. of Penzance, 4 land v. Curlin'j, 8 Beav. 129. 
 Ha. 506, 509. (2) Boxvns v. Collins, 6 Ha. 418, 
 
 (s) Wilson V. Furness Ry. Co., 9 437; Lindley, 914. 
 Eq. 28, 33. [a] Johnson v. S. X- B. Ry. Co., 
 
 (t) Raphael v. T. V. R. Co., 2 Ch. 3 De G. M. & G. 914. 
 147. [h] Chinnockv.Saimbury,30'L. J. 
 
 («) Wilson V. Furness Ry. Co., N. S. Ch. 409. 
 supra. 
 
 service. 
 
 of husband 
 and wife.
 
 F 
 
 CONTRACTS RELATING TO PERSONAL ACTS. 589 
 
 to indemnify the husband against the wife's debts (c), or 
 the wife's acceptance of maintenance from her husband 
 instead of proceeding against him for divorce (d). 
 
 5. A Court of equity will not decree the specific per- Agree- 
 
 formance of a covenant to refer disputes to arbitration (c), refer to 
 
 at least if the ao^reement to submit does not contain a '''3'^iti"^- 
 
 . . . tion. 
 
 covenant not to take proceedings at law or in equity. If 
 
 there is such a restrictive covenant, it may seemingly be 
 
 pleaded in bar of proceedings in any superior Court (/). 
 
 And where there is in a contract an agreement to refer 
 
 matters in dispute to arbitration under the Common Law 
 
 Procedure Act (g), a Court of equity, although it may have 
 
 jurisdiction to decide the question at issue, will on motion 
 
 stay proceedings, and refer the matters to arbitration 
 
 according to the Act (h). 
 
 As to cases arising on contracts for sale of goods at 
 a price to be fixed by valuation, see su])ra, p. 586. 
 
 The Court will decree specific performance of an award, Awards. 
 where it is to do anything in specie, as to convey an estate 
 or assign securities (i), but not, it seems, an award to pay 
 money {h). In short, the award is treated as an agreement 
 between the parties, and will be enforced where an agree- 
 ment would be enforced, not otherwise {I). 
 
 6. A Court of equity will not specifically enforce a con- Borrowing 
 tract to lend (-ni), nor a contract to borrow {n), or to pay jng. 
 money (o) ; but it will always decree specific performance Agree- 
 
 of an agreement to execute a mortgage in consideration of mortgage. 
 money due (p), or an agreement by parol to execute a bill 
 
 (c) Gihhs V. Harding, 5 Ch. 336 ; (k) Hall v. Hardy, 3 P. Wms. 
 Wilson V. W., 1 H. L. 538; 5 H. L. 190. 
 
 40. (I) BJacl-ett v. Bates, 1 Cb. 117. 
 
 (d) Hobhs V. Hull, 1 Cox, 445. (m) Sichel v. Mosenthal, 30 Beav. 
 
 (e) Street v. Bif/bi/, 6 Ves. 815. 371. 
 
 (/) Halfhide v. Fenninc/, 2 Bro. (n) Rorjers v. Challis, 27 Beav. 
 
 C. C. 336; CooJce v. C, 4 Eq. 77. 175. 
 
 (g) 17 & 18 Vict. c. 125. (o) Crampton v. The Varna Ry. 
 
 (h) Willesfm-d v. Watson, 14 Eq. Co., 7 Ch. 562. 
 
 572; 8 Ch. 473; Wheatlcy v. West- [p) Ashton v. Corrigan, 13 Eq. 
 
 minster etc. Co., 2 Dr. & Sm. 347. 76. 
 
 (i) Norton v. Mascall, 2 Veni. 24.
 
 590 
 
 SPECIFIC PERFORMANCE. 
 
 Negative 
 contracts, 
 how 
 enforced. 
 
 of sale of personal chattels to secure the plaintiff against 
 certain liabilities (q). 
 
 7, Where a person has entered into a contract not to do 
 a thing, specific performance of such a negative contract 
 takes the form of an injunction. Thus the ringing of a 
 bell (r), carrj'ing on a trade (s), acting on the stage (t), 
 erecting buildings (u), making applications to Parliament 
 (cc), and various other acts have been restrained, where 
 they have been contrary to agreement. But the Court 
 will not compel by injunction the doing of something 
 which involves continuous employment for an indefinite 
 period (y). Nor will it restrain the doing of an act which 
 is merely ancillary to an agreement of which it cannot 
 compel specific performance (z). 
 
 (q) Taylor v. Eckcrsley, 2 Ch. D. 
 302 ; 5 Ch. D. 740. 
 
 (r) Martin v. Nutkin, 2 P. Wms. 
 266. 
 
 (s) Barret v. Blagrave, 5 Ves. 555. 
 
 (t) Lumley v. Wagner, 1 De G. 
 M. & G. 604. 
 
 (w) Rankin v, Huskisson, 4 Sim. Eq. 18. 
 
 13. 
 
 {x) Ware v. Grand Junction Co., 
 2 Russ. & My. 470 ; Exp. Hartridge, 
 5 Ch. 671. 
 
 (y) Powell d-c. Co. v. Taff Ry. 
 Co., 9 Ch. 331. 
 
 (s) Merchants' Co. v. Banner, 12
 
 THE STATUTE OF FRAUDS. 591 
 
 Section III. — Defence of the Statute of Frauds. 
 
 I. Part Performance. 
 
 Lester v. Foxcroft. 
 II. Other grounds for Relief 
 III. Evidence as to Parol Variations. 
 Townshend v. Stangroom. 
 
 In discussing in the last section the general principles by 
 which equity was guided in dealing with claims for specific 
 performance, we postponed for separate examination that 
 extensive class of cases arising from contracts respecting 
 land in which a non-compliance with the Statute of Frauds 
 is set up as an objection to the interference of equity. 
 To this we now revert. 
 
 The Statute of Frauds (a) enacts that " no action shall Statute of 
 be brought upon any contract or sale of lands, tenements, 29^Car.' ii. 
 or hereditaments, or any interest in or concerning them, c- 3, s. 4. 
 unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof, be in wiit- 
 ing, and signed by the party to be charged therewith, or 
 some other person thereunto by him lawfully authorised." 
 Notwithstanding this enactment, there are many cases in 
 which, though the Courts of Common Law would not 
 have assisted the plaintiff. Equity has interfered out of its 
 regard for considerations which the Common Law refused 
 to recognise. This has been especially the case where the 
 party seeking relief has been put into a situation which 
 makes it against conscience in the other party to insist on 
 the want of writing signed according to the statute, as 
 a bar to the relief. The principle on which these cases Statute 
 rest is that even an Act of Parliament shall not be used as {"^-^ ^°} 
 
 06 11S6CI R5 
 
 (a) 29 Car. II. c. 3, s. 4.
 
 592 
 
 SPECIFIC PERFORMANCE. 
 
 an instru- an instrument of fraud. The Court docs not, indeed, 
 fraud. affect to Set aside the Act of Parliament, but it fastens on 
 the individual who seeks against conscience to avail him- 
 self of it, and imposes on him a personal obligation. 
 
 Ground of 
 inter- 
 ference. 
 1. Part 
 perform- 
 ance. 
 
 Acts must 
 be refer- 
 able to the 
 agreement. 
 
 Not merely 
 introduc- 
 tory or 
 ancillaiy. 
 
 I. Part Performance. 
 
 The majority of the cases, in which relief is on this 
 ground granted, are deemed to be taken out of the 
 statute by the fact that the agreement on which they rest 
 has been in part performed by the plaintiff. Among them 
 a leading authority is 
 
 LESTER V. FOXCROFT 
 
 [1 Colles. P. C. 108 ; 1 W. & T. L. C. 828], 
 
 in which specific performance of a verbal agreement to grant 
 a lease was decreed, notwithstanding the Statute of Frauds, 
 on the ground that in reliance thereon the lessee had in- 
 cun-ed considerable expense and trouble in pulling down 
 an old house and building new ones according to the 
 terms of the agreement, it being considered against con- 
 science under such circumstances for the defendant to 
 plead the statute. 
 
 The inquiry is thus suggested as to what circumstances 
 are considered by equity sufficient to render it against 
 conscience to allow the Statute of Frauds to stand as a 
 bar to the relief sought, and particularly as to the effect of 
 part performance. 
 
 1. The acts alleged as amounting to part, performance 
 must be such as are not only referable to the alleged agree- 
 ment, but such as are referable to no other title. And 
 again, they must be acts so clear, certain, and definite in 
 their object and design, as to refer exclusively to a complete 
 and perfect agreement of which they are part execution. 
 
 Thus acts merely introductory or ancillary to an 
 agreement, although attended with expense, are not con- 
 sidered acts of part performance. Under this head are
 
 PART PElirORMAXCE. 593 
 
 included the delivery of abstracts of title, giving orders for 
 conveyances to be drawn and engrossed, going to view an 
 estate, employing surveyors to value timber on an estate, 
 or appraisers to value stock or land, registering deeds, and 
 similar acts of an equivocal nature, which will not suffice 
 to take a case out of the statute (?>). 
 
 2. Part payment, or even entire payment of the pur- ^^'^^ P^J- 
 chase-money, is not sufficient to entitle to relief Here the sufficient, 
 legal remedy would be quite adequate, return of the 
 money, with interest, being a complete redress (c). 
 
 3. Whether or not admission into the possession of an Possession, 
 estate will be considered part performance depends on cir- cient. 
 cumstances. If it has unequivocal reference to the 
 contract, it is sufficient. That a stranger should be found 
 
 in acknowledged possession of the laud of another is 
 strong evidence of an antecedent agreement, and is 
 usually sufficient to warrant an application for relief in 
 equity (d) ; d fortiori where (as in the principal case), in 
 addition to possassion, the plaintiff has laid out money on 
 the land (e). 
 
 On the other hand, if the possession can be reasonably When not 
 accounted for apart from the alleged contract, it will not 
 suffice : for instance, if in a suit for the specific per- 
 formance of an alleged agreement for a lease, the tenant 
 was in possession under a previous tenancy, he cannot set 
 up that as a part performance (/). Or if a farm tenant 
 from year to year continues in possession, and lays out 
 such moneys as are usual in the orditiary course of hus- 
 bandry, this is no part performance (<j). Such continuance 
 in possession, however, if accompanied by payment of an 
 
 {b) IlmoJiins v. Holmes, 1 P. Wms. (d) Aylesford's Case, 2 Str. 783 ; 
 
 770; Pembroke v. Tluyrpe, 3 Swanst. Mundij v. Jolliffe, 5 My. & Cr. 1G7 ; 
 
 437, n. ; Whitchurch v. Bevis, 2 Bro. Pain v. Coombs, 1 De G. & J. 34, 46. 
 
 C. C. 559, 566 ; Cooth v. Jackson, 6 (e) Crook v. Coi-p. of Seaford 6 
 
 Ves. 17 ; Phillips v. Edivards, 33 Cli. 551. 
 
 Beav. 440. J^f) Wills v. Stradlinf/, 3 Ves. 
 
 (o) Clinan v. Cooke, 1 S. & L. 22, 378. 
 
 40 ; Hughes v. Mwris, 2 De G. M. (y) Brennan v. Bolton, 2 Dr & 
 
 & G. 349, 356. War. 349. 
 
 Q Q
 
 594 
 
 SPECIFIC PERFORMANCE. 
 
 Marriage 
 not sutli- 
 cient. 
 
 Represen- 
 tations 
 connected 
 with 
 marriage. 
 
 increased rent, referable to the alleged agreement, has 
 been held to be an act of part performance (h) ; and simi- 
 larly, if, while continuing in possession, he has laid out 
 money, not merely in ordinary acts of husbandry, but in 
 a manner which points to a special agreement (i). 
 
 Moreover, where the fact of possession is set up as a 
 part performance, it is essential that the possession should 
 have been delivered according to the contract (k). It is 
 evident that a wrongful possession could not operate as 
 a title to the consideration of the Court. 
 
 4. Marriage is not alone a part performance of an agree- 
 ment in relation to it, the Statute of Frauds expressly 
 enacting that every agreement made in consideration of 
 marriage must be in writing (l). Nevertheless, a con- 
 tract made in consideration of marriage may be taken 
 out of the statute by acts of part performance inde- 
 pendent of the marriage ; for instance, by giving up pos- 
 session of property agreed to be settled (on). 
 
 Again, where a person marries upon faith of represen- 
 tations or promises made to him for the purpose of 
 influencing his conduct with reference to the marriage, 
 the person making such representations or promises will 
 be compelled in equity to make them good, not only at 
 the instance of the person to whom they were made, but 
 also at the instance of the issue of the marriage (n). The 
 representation or promise must, however, be clear and 
 absolute (o), and the marriage must be distinctly ascribable 
 thereto (p). If it is contained in a lost document, parol 
 evidence is admissible as to its contents (q). If there is a 
 
 (h) Nimn V. Fahian, 1 Ch. 35. 
 
 (i) Mundy v. Jolliffe, 5 My. & Cr. 
 167 ; Sutherland v. Briggs, 1 Ha. 
 26. 
 
 (k) Cole V. White, cited 1 Bro. 
 C. C. 409. 
 
 (I) Warden v. Jones, 23 Beav. 487; 
 2 De G. & J. 76 ; Caton v. C, 2 L. 
 R. H. L. 127. 
 
 (m) Hvrcomhe v. Pinniger, 3 De G. 
 
 M. & G. 571 ; Ungley v. U., 5 Ch. 
 D. 887. 
 
 (n) Hammersley v. De Biel, 12 C. 
 & F. 45 : Walford v. Gray, 13 W. 
 R. 335, 761. 
 
 (o) liandall v. Morgan, 12 Ves. 67. 
 
 (7:/) Goldicutt V. Tovmsend, 28 
 Beav. 445. 
 
 {q) Gilchrist v. Herhei't, 26 L. T. 
 (N. S.) 381.
 
 PART PERFORMANCE. 595 
 
 written agreement after marriage, in pui'suance of a pre- 
 vious parol agreement, this takes the case out of the 
 statute (r). 
 
 On a similar principle an injunction was granted to 
 restrain the enforcement of a demand, the party seeking 
 to enforce it having, w^hile the marriage treaty was pend- 
 ing, falsely represented to the father of the lady that there 
 was no such demand existing (s). 
 
 Where the representation is not of an existing fact, but 
 of a mere intention, or where the promiser refuses to bind 
 himself by a contract, giving the party to understand that 
 he must rely upon his honour for the fulfilment of the 
 promise, it has been held that the Court cannot enforce 
 performance (t). A promise by a husband to leave pro- 
 perty by will was held not to be enforceable (it). 
 
 5. Companies and corporations are equally with indi- Contracts 
 viduals bound by acts of part performance (x). An agree- LnTer&c 
 ment by a corporation to let land upon lease, although not 
 
 under seal, will be enforced against the corporation, where 
 there have been acts of part performance on the part of 
 the intended lessee (y). 
 
 6. Sales of land by auction are generally within the Auctions. 
 Statute of Frauds. A purchaser, therefore, is not bound 
 unless there is some agreement in writing (z). 
 
 But if a purchaser takes possession after the sale, and 
 commits acts of ownership, it will be held to be part per- 
 formance, so as to entitle the vendor to enforce the sale 
 as regards the lots so occupied and dealt with, though not 
 of other lots sold at the same time (a). The signature 
 of the auctioneer, or his clerk, has been held to satisfy the 
 statute, on the ground that he is constituted agent of the 
 
 (r) Sarcombe V. Pinniger,svp. (x) Wilson v. IF. H. R. Co., 34 
 
 (s) Neville v. Wilkinson, 1 Bro. C. Beav. 187 ; 2 De G. J. & Sm. 475. 
 
 C. 543. [y) Crook v. Coi-jp. of Seaford, 6 
 
 (t) Mannsell v. White, 4 H. L. Ch. 551. 
 
 1039; Jordan v. Money, 5 H. L. (s) Blagdcn v. Bradbear, 12 Ves. 
 
 185 ; 15 Beav. 372 ; 2 Ue G. M. & 466, 472. 
 
 G. 318. (rt) Buckmn.itcr V. Ifarrop, 13 Ve.s. 
 
 (m) Caton V. C, sup. 456, 474. 
 
 Q Q 2
 
 590 
 
 SPECIFIC PERFORMANCE. 
 
 Miscel- 
 
 Lmeous 
 contracts 
 
 purchaser by the act of bidding (h). But in order to this, 
 the auction book must embody, or at least refer to, the 
 conditions of sale (c). 
 
 Sales under a decree of the Coiu't, or in bankruptcy, 
 have been held to bo excepted from the statute (d). 
 
 It has been said that the doctrine of part performance 
 is not to be extended by the Court, and it was held 
 inapplicable to a case in which a trustee had a power to 
 lease at the request, in ivriting, of a married woman, 
 and such request had not been made (e). 
 
 A parol agreement to sell or grant a lease entered into 
 by a tenant for life with a leasing power, coupled with a 
 part performance by the purchaser, or lessee, during the 
 life of the tenant for life, will not bind the remainder-man, 
 unless he is aware of the agreement and acquiesces (/), 
 or unless, after the death of the tenant for life, he lies by 
 and allows the purchaser or lessee to expend money in 
 improving the estate (g). 
 
 A family arrangement for the division of land, although 
 only verbal, has been carried out where there have been 
 acts of part performance by the parties interested, such as 
 holding and dealing with the land in accordance with 
 the terms of the arrangement (h). 
 
 II. Other grounds for Belief. 
 
 Grounds There are grounds other than part perfonnance, in 
 ^tlT er-^" consideration of which the Court, deeming it inequitable 
 formance. for a defendant to set up the statute as a defence, will 
 decree specific performance. 
 
 (6) Peirce v. Corf, 9 L. R. Q. B. 
 210 ; Bird v. Boulter, 4 B. & Ad. 
 443. 
 
 (c) RisJdon V. WJiatmorc, 8 Ch. D. 
 467. 
 
 {d) Att.-Gen. v. Day, 1 Ves. sr. 
 218 ; Exp. Cntts, 3 Deac. 267. 
 
 (e) PJdllips V. Edtvards, 33 Beav. 
 440. 
 
 (/) Blore V. Sutton, 3 Mer. 237. 
 
 (v) Stiles V. Coiiyper, 3 Atk. 692. 
 
 (h) Williams V. W., 2 Dr. & Sm. 
 378 ; 2 Ch. 294.
 
 OTHEK GROUNDS FOR RELIEF. 597 
 
 1. Where the aOTeement was intended to have been in T'rand of 
 
 ,. , , dcfeudaiit. 
 
 writing according to the statute, but this has been prevented 
 from being done by the fraud of the defendant, equity 
 has relieved. Otherwise the statute, designed to suppress 
 fraud, would be used as a protection for it. Thus if one 
 agreement is fraudulently substituted for another, or if 
 in case of a loan on mortgage, it is agreed that the security 
 is to be in the form of an absolute deed by the mortgagor 
 and a defeasance by the mortgagee, and the absolute con- 
 veyance being executed, the mortgagee refuses to execute 
 the defeasance, equity will grant relief (i). 
 
 The principle that a statute shall not be made an instru- 
 ment for covering a fraud has been illustrated by cases in 
 which equity has not allowed parties to profit where they 
 have fraudulently induced a person to make or refrain 
 from altering a will, the mode of making which was 
 formerly regulated by sections 5 and 19 of the Statute of 
 Frauds, and is now by the Wills Act (k). 
 
 Thus if a person, knowing that a testator in making Analogous 
 a disposition in his favour intends it to be applied for ^^^l^ ^-^ 
 ])urposes other than his benefit, expressly promises, or by Wills' Act. 
 silence implies that he will carry the testator's intentions 
 into effect, and the property is left to him upon faith of 
 that promise or undertaking, it is in effect a trust, and the 
 devisee will not be allowed to shelter himself behind the 
 Wills' Act (l). It would be otherwise if the omission to 
 declare the trust according to the statute arose from the 
 neglect or error of the testator uninfluenced by the 
 devisee (m). But qucere whether the heir could claim on 
 the ground of an absence of intention to benefit the 
 devisee (n). The same principle applies to a case where 
 property has been suffered to descend owing to similar 
 representations made by the heir (o). 
 
 (i) Joynes v. Statham, 3 Atk. 389 ; 204 ; Mufhleston v. Broton, 6 Ves. 
 
 Lincoln v. WrigJit, 4 De Gr. & J. 16. 52 ; Eoivbotham v. Dunnett, 8 Ch. 
 
 (A) 1 Vict. c. 26. D. 431. 
 
 [I) Jones V. Badleii, 3 Ch. 364. (o) Sticklaml v. Aldridye, 9 Ves. 
 
 (m) Adlingtonv.Cann,Z Afk.l?)!. 516, 519; M'Cormick v. Orogan, 4 
 
 {n) RusselL v. Jackson, 10 Ha. L. R. H. L. 82, 88.
 
 598 
 
 SPECIFIC PERFORMANCE, 
 
 Admis- 
 Bions. 
 
 Mode of 
 pleading. 
 
 See supra (p. 573) as to cases where the trusts intended 
 would be contrary to the law ; e.g., of mortmain. 
 
 The onus lies on the plaintiff of showing that a trust for 
 a charity was communicated to and expressly or tacitly 
 accepted by the devisees : if this is not admitted by the 
 defendants it may be proved by evidence aliunde (p). 
 
 2. Where under the old practice the agreement alleged 
 in the bill was confessed without more by the answer, it 
 was enforced, the defendant being deemed to have waived 
 the defence of the statute (q). If, however, though con- 
 fessing the parol agreement, the defendant at the same 
 time claimed the protection of the statute, this defence 
 prevailed (r). 
 
 Formerly the statute could be pleaded by demurrer, but 
 it must now be done by statement of defence (s). 
 
 Evidence 
 as to parol 
 variations 
 in the 
 contract. 
 
 Generally 
 n>t admis- 
 sible to 
 support a 
 claim for 
 specific 
 perform- 
 ance ; but 
 admissible 
 in defence. 
 
 Ill, Evidence of Parol Variations. 
 
 The consideration of the effect of the Statute of Frauds 
 in suits for specific performance cannot be dismissed with- 
 out reference to the important class of cases which have 
 turned upon the question of the admissibility of parol 
 evidence of alleged variations from the written agreement. 
 
 The leading principle which guides the Court in deciding 
 this question cannot be better illustrated than by reference 
 to the case of 
 
 TOWNSHEND v. STANGROOM 
 
 [6 Ves. 328]. 
 
 There a lessor filed a bill for specific j)erformance of a 
 written agreement for a lease, alleging a parol variation as 
 to the quantity of land included ; and the lessee filed a 
 cross-bill for specific performance of the agreement simply 
 as written. Lord Eldon dismissed both bills ; the lessor's 
 
 (p) Edwards v. Pike, 1 Eden, 267. 
 [q) Att.-Gen. v. Sitwell, 1 Y. & C. 
 Ex. C. 559. 
 
 37. 
 
 (r) Cooth V. Jackson, 6 Ves. 12, 
 
 (s) Catlinr/ v. King, 5 Ch. D. 660.
 
 EVIDENCE OF PAROL VARIATIONS. 599 
 
 because parol evidence was not admissible for him as 
 plaintiff to set up an agreement different from that which 
 was written ; the lessee's because the very same evidence 
 was admissible on the part of the lessor by way of 
 defence (t). 
 
 1. Thesecasesareconspicuousamongmany decisions which The rule 
 have well established the difference between the evidence general 
 which is available for a plaintiff seeking and a defendant principles 
 resisting specific performance of a contract. Although the 
 question as to the admissibility of parol evidence is affected 
 by the Statute of Frauds, it does not wholly rest thereon. 
 Independently of the Statute, by "the general rules of 
 evidence, writing stands higher in the scale than mere 
 parol testimony, and when treaties are reduced to writing 
 such writing is taken to express the ultimate sense of the 
 parties, and is to speak for itself. In the case of a contract 
 respecting land, the general idea receives weight from the 
 circumstance that you cannot contract at all on that subject 
 but in writing ; and this, therefore, is a further reason for 
 rejecting parol evidence. In this way only is the Statute 
 of Frauds material, for the foundation and bottom of the 
 objection is in the general rules of evidence " {it). 
 
 The rule, then, is that parol evidence on the part of a General 
 plaintiff seeking performance of a written contract with a i^l"'**'^^- 
 variation supported by such evidence will be rejected, not- 
 withstanding that the difference of the written from the 
 real agreement is the result of fraud, accident, or surprise. 
 Thus a plaintiff cannot adduce evidence to prove that lands 
 comprised in a written agreement were by parol agreed to 
 be left out of a lease (x), nor to prove verbal declarations 
 at an auction in opposition to printed conditions of sale (y), 
 nor that a written agreement to sell to two jointly was in 
 reality an agi'eement to sell to one of them, and that the 
 other was to have some interest in the premises by way of 
 
 {t) See also WooUa7)i v. Hcarn, 7 (x) Lawson v. Laude, 1 Dick. 346. 
 
 Ves. 211. (y) Jaikinson v. Pcpys, cited, 1 
 
 («) Davis V. Symonds, 1 Cox, 402. V. & B. 528.
 
 available 
 in defence. 
 
 (JOO SrEO'IFIC PERFORMANCE. 
 
 security for such part of the purchase-money as he might 
 
 advance (z), nor in any similar case {a). 
 
 Exception. 2. On the principle, however, alreadj' explained in 
 
 vrnltion connexion with Lester v. Foxcroft, that part performance 
 
 partly ^^jQ scrvo the purpose of evidence which is otherwise want- 
 performed. ^ ^ 1 11 1 1 • .• 
 
 ing, it is established that when the alleged parol variation 
 
 has been partly performed, specific performance of the 
 written agreement with the parol variation will be 
 decreed (b). In such cases the parol variation is in fact 
 treated as a new agreement partly performed ; and it is 
 considered that such agreement having been acted upon, 
 cannot be disregarded without injustice (c). 
 When 3. It is equally well established that it is open to a defen- 
 
 dant in certain circumstances to resist a claim for specilic 
 performance by means of parol evidence designed to show 
 that the real agreement was not that which is represented 
 in the writing, and that its enforcement would be, there- 
 fore, ineciuitable. This is, indeed, no infringement of the 
 statute, which "does not say that a written agreement shall 
 bind, but that an unwritten agreement sliall not bind"(<0- 
 
 The circumstances, always of much weight in equity, 
 which entitle a defendant to make use of such evidence, 
 are fraud, mistake, or surprise (e). 
 
 Where the terms of a written agTeement have been 
 ambiguous, so that, adopting one construction they may 
 reasonably be supposed to have an effect which the 
 defendant did not contemplate, the Court has on that 
 ground refused to enforce the agreement (/) ; the author of 
 the ambiguity has even himself had the benefit of this 
 principle ((/). 
 
 (z) Davis V. Syraonds, 1 Cox, 402. (c) Joynes v. Statham, 3 Atk. 388 ; 
 
 (a) Clinan v. Cooke, 1 S. & L. 22, Clowes v. Hig(jinson, 1 V. & B. 524 ; 
 
 30. Mauser v. Back, 6 Ha. 443. 
 
 (6) Anon., hYm.Ahr. 522, tit. 38; (/) Calverley v. Williams, 1 Ve.s. 
 
 Legal v. Miller, 2 Ves. sr. 299. 210 ; Clmves v. Higfjinson, 1 V. & B. 
 
 (c) Piteairn v. Osbourne, 2 Ves. sr. 524. 
 
 375. (g) Neap v. Abbott, C. P. Coop. 
 
 (d) Clinan v. Cooke, 1 S. & L. 22, 333. 
 39.
 
 EVIDENCE OF PAROL VARIATIONS. GOl 
 
 The admissibility of parol evidence in defence is not, 
 moreover, confined to matter collateral to and independent 
 of the written agreement, but may amount even to a con- 
 tradiction of it (h). 
 
 It is not sufficient, however, to entitle the vendor to the When not 
 benefit of such evidence, that the contract is not precisely 
 such as he expected it to be. A mere unproved suspicion 
 of fraud in the plaintiff (i), or a mistake in law, or as 
 to the legal effect of the contract, or the legal consequences 
 of an act (/<;), or a mistake as to the interest which the pur- 
 chase will enable a person to acquire (I), cannot be set up 
 as a defence. And if mistake of fact is alleged it must be 
 clearly proved (m). Further, an inadvertent omission to 
 propose an intended term to an agreement (n), or its pur- 
 posed omission, upon the sujjposition that it was illegal, is 
 not sufficient (o). 
 
 4. An analogous class of cases is that in which two contracts Mutually 
 are alleged by the defendant to be mutually dependent, contracts 
 and he claims to resist the performance of one until the 
 plaintiff performs the other, parol evidence being necessary 
 to connect the two. In Croome v.Lediard (p) such evidence 
 was rejected, and the plaintiff's prayer granted, though 
 the defendant could not make a good title to the estate he 
 wished to sell, and he sought to prove that the whole 
 transaction was intended as an exchange. Lord Brougham 
 rejected the tendered evidence, on the ground that evidence 
 of matter dehors the written agreement was not admissible 
 to alter the terms and substance of the contract ; though 
 evidence of matter collateral to it might be received. But 
 Lord St. Leonards, in commenting on the case, has con- 
 
 (7i) RamsboUom v. Gosden, 1 V. & Vern. 243. 
 
 B. 165 ; Winch v. Winchester, ib. (m) Darnley v. L. C. <£• D. R., 2 
 
 375. L. R. H. L. 43. 
 
 (i) Lirjhtfoot V. Heron, 3 Y. & C. [n) Parker v. Ta&well, 2 De G. & 
 
 Ex. 586. J. 559. 
 
 (k) Cooper \. Phihhs, 2 L. R. H. L. (o) Irnliam v. Child, 1 Bio. C. C. 
 
 149 ; Powell v. Smith, 14 Eq. 85 ; 92 ; see also Cross v. Berridne, 8 Ch, 
 
 G. W. R. V. Cripps, 5 Ha. 91. 359. 
 
 (/) Mildmay v. Hunyerford, 2 (p) 2 My. & K. 251.
 
 G()2 
 
 SPECIFIC PERFORMANCE. 
 
 Parol 
 waiver. 
 
 Sub- 
 
 Ke(iuent 
 
 variation. 
 
 Contem- 
 poraneous 
 variation. 
 
 Plaintiff 
 may assent 
 to parol 
 variation. 
 
 sidereJ that the proper ground was the absence of any- 
 proof of fraud, mistake, or surprise (q). 
 
 5. A clearly proved parol waiver of a written contract, 
 amounting to a complete abandonment, will bar specific 
 performance (r). And where a written agreement is 
 subsequently varied by parol, upon proceedings being taken 
 for specific performance with or without the variation, the 
 Court will, it seems, put the defendant to his election, and 
 if he declines to elect will decree specific performance of 
 the agreement without the variation (s). But it seems that 
 parol evidence of a contemporaneous variation in or addition 
 to an agreement which was by admission correctly put into 
 writing, is not admissible as a defence to specific perform- 
 ance (t). 
 
 6. Although it will be a good defence to show that a 
 written agreement does not contain a provision in favour 
 of a defendant verbally agreed upon between the parties, 
 nevertheless, when such a verbal agreement is alleged the 
 plaintiff may, by submitting to perform the omitted jjro- 
 vision, and in the absence of fraud or mistake with 
 reference to it, obtain a decree for performance of the whole 
 contract (%). And there are many cases in which the effect 
 of the evidence has been, not to defeat the plaintiff's claim 
 to specific performance, but to lead the Court to perform 
 the contract, taking care that the parol agreement is also 
 carried into effect, so that all the parties may have the 
 benefit of what they contracted for (x). 
 
 (q) Sugd. V & P. 163, 14tli ed. ; 
 Lloyd v. Z., 2My. & Cr. 192. 
 
 (?•) Price V. Dyer, 17 Ves. 356. 
 
 (s) Robinson y. Pufje, 3 Russ. 114. 
 
 (t) Ormcrod v. Hardman, 5 Ves. 
 722. 
 
 (m) Martin v. Pycroft, 2 De G. M. 
 & G. 785. 
 
 (flc) Ranishottom v. Gosden, 1 V. & 
 B. 165 ; L. cO B. R. Co. v. Winter, 
 Cr. & Ph. 57 ; Smith v. Wheatcroft, 
 9 Ch. D. 223.
 
 CONTRAST OF LAW AND EQUITY. 003 
 
 Section IV. — Specific Performance with a Variation. 
 
 Contrast of Law and Equity. 
 
 Setou V. Slade. 
 
 I. Where the Dispute relates to Time. 
 
 1. When twie is essential. 
 
 2. When not so. 
 
 3. Compensation. 
 
 II. Where the Dispute relates to Quantity or Quality. 
 
 1. In vendors' suits. 
 
 2. In purchasers' suits. 
 
 Having examined the general principles which deter- Defences 
 
 , , 1 , -IP • n r- o peculiar to 
 
 muie whether or not a suit tor specinc perrormance oi g^its for 
 a contract will lie in equity, we are now led to consider specific 
 
 perform- 
 
 the force of a peculiar class of defences which may be ance, 
 used in answer to such a claim, and to observe the manner 
 in which equity deals therewith. There is scarcely any 
 branch of the subject of equitable jurisdiction more fertile 
 with ilkistrations of the contrast between the principles 
 and methods of equity and those which prevail in the 
 Courts of Common Law. 
 In the important case of 
 
 SETON V. SLADE 
 
 [7 Ves. 265 ; 2 W. & T. L. C. 501] 
 
 the defendant agreed to purchase certain property from 
 the plaintiff. The memorandum of agreement was signed 
 by him, but not by the plaintiff. One of the terms 
 thereof was that a good title to the property was to be 
 made within two months, and the purchase was to be 
 completed within that time. The abstract of title was 
 only delivered Avithin a few days of the expiration of the 
 two months, but the defendant received and retained it
 
 604! SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 without objection until the expiration of the two months. 
 On a bill for specific performance of the agreement, it was 
 held that the defendant could not insist on the time as of the 
 essence of the contract, and specific performance was decreed. 
 In many respects analogous to this are other cases 
 in which the dispute as to performance rests not upon 
 the question of time, but upon the fact that the vendor 
 has not the same interest in the estate as that which he 
 contracted to sell ; or that there is some deficiency in the 
 quantity or quality of it. In such cases a party not able 
 strictly to perform his contract had no remedy at law by 
 way of damages ; but in equity he might often obtain 
 specific performance, adequate compensation being allowed 
 for the partial departure from the contract. 
 
 At the suggestion therefore of this case we may con- 
 veniently investigate the general circumstances under 
 which, though the plaintiff cannot strictly carry out his 
 agreement, he will obtain specific perfoi'mance on allowing 
 compensation, 
 Applica- This is a fitting place in which to mention a recent 
 summons nseful enactment which has been the means of saving con- 
 ""^^^■^ siderable expense in case of disputes such as we are about 
 Vict. c. 78, to consider. By the Vendor and Purchaser Act, 1874 (?/), 
 it is provided that a vendor or purchaser of real or lease- 
 hold estate in England may apply in a summary way to a 
 Judge in Chambers in respect of any requisitions or objec- 
 tions, or any claim for compensation, or any other question 
 arising out of the contract (not being a question affecting 
 the existence or validity of the contract), and the judge 
 shall make such order upon the application as to him shall 
 appear just. 
 
 s. 9. 
 
 I. Where the Dispute relates to Time. 
 
 Time In the Courts of law previous to the passing of the 
 
 Judicature Act of ] 873, time was in all cases considered 
 (</) 37 & 38 Vict. c. 78, s. 9.
 
 WHERE THE DISPUTE RELATES TO TIME. 605 
 
 as of the essence of the contract. By that Act, however, essential at 
 
 law, 
 it is enacted (s) tliat " stipulations in contracts as to time judicatm-e 
 
 or otherwise, which wonld not before the passing of this ^v*'''*'^'^' 
 Act have been deemed to be, or to have become, of the 
 essence of such contracts in a Court of equity, shall receive 
 in all Courts the same construction and efi'ect as they 
 would have heretofore received in equity." Equitable 
 principles, therefore, in this as in other matters now pre- 
 vail in all the Courts ; so that when we speak hereafter of 
 a distinction between the rules of law and equity, we 
 must be understood to refer to the state of things previous 
 to the 1st of November, 1875. 
 
 Though, as in the principal case, equity usually con- 
 siders time to be a circumstance, and not of the essence of 
 a contract, there are other cases in which its treatment is 
 as strict as that of law. It will be well, therefore, to con- 
 sider these classes of contracts separately ; and first, the 
 smaller and exceptional class. 
 
 1. Where time is deemed essential. Time, 
 
 Equity is induced to treat time as of the essence of a Agential 
 contract either in consideration of the nature of the pro- ii equity, 
 perty concerned, or on account of the special agreement 
 to that effect of the parties. 
 
 (1.) From the nature of the property. 
 
 (i.) Where the thing is of greater or less value, accord- Property 
 ing to the effluxion of time, such as a reversion, equity tiL^^^vaiue 
 recj[uires strict adherence to time. Such contracts are 
 generally occasioned by the vendor's present want of 
 money, and to give him interest thereon during a long 
 delay is no compensation to him (a). Within the same 
 principle is included property of an unusually fluctuating 
 value, such as a mining lease, or foreign stock (6) ; or of a 
 wasting character, as a life annuity or leaseholds (<^). 
 
 (ii.) The purpose of the purchase is often considered as Purpose 
 
 (z) Sect. 25, sub.-s. 7. 533 ; Dolorct v. Rotliscldld, 1 S. & S. 
 
 [a) Newman v. Rogers, 4 Bro. C. C. 590. 
 
 393. (c) Hudson v. Temple, 29 Beav. 
 
 {h) Marhryde v. Weeks, 22 Beav. 536.
 
 GOG SPFCIFIC PERrOR]\rAX('E WITH A VARIATION. 
 
 of the influencing the construction of the contract: thus time is 
 
 insisted on wliere premises are needed for commercial 
 
 purposes ((/), or with a view to immediate residence (e), or 
 
 the money is required foi' paying off debts of the vendor (/). 
 
 Sale of (iii.) In t]io absence of express stipulation to the con- 
 
 hoiise!' trary, time is always regarded as essential in the sale of a 
 
 public-house as a going concern ((/), and the license must 
 
 be transferred promptly. 
 
 Right of (iv.) An option to purchase under a right of pre-emption 
 
 emi)tion. ^^ always construed strictly, and must be exercised at the 
 
 time prescribed iji). 
 
 By special (2.) By special agreement of the parties. 
 
 oFthr*^" (i.) It was at one time held that the parties could not make 
 
 parties. time of the essence of a contract any more than they could 
 
 contract themselves out of the operation of the principles 
 
 of equity as to the redemption of mortgages, or the 
 
 penalties of bonds; but it is now established that if by 
 
 the contract it clearly appears to be the intention of the 
 
 parties, if for instance, they stipulate that the agreement 
 
 shall be void unless the purchase be completed on a given 
 
 day, equity will treat the fixture of time as essential (i). 
 
 Stipulation It nevertheless requires a very strict stipulation to 
 
 strict. effect that object (k). A mere stipulation that an abstract 
 
 shall be given, or possession delivered on a named day, will 
 
 not suffice (I). A stipulation that time shall be of the 
 
 essence of the contract with regard to one of the steps 
 
 towards completion, raises a presumption that it was not 
 
 intended to be so with regard to others (751) ; and if the 
 
 contract evidently contemplates an extension of the time 
 
 beyond the day fixed, as by fixing interest to be thereafter 
 
 (d) Parker v. Frith, 1 S. & S. 419; Hudson v. Teinple, 29 Beav. 
 190, n. 5:36. 
 
 (e) TlUey v. Thomas, 3 Ch. 61. (A) Wehh v. Hughes, 10 Eq. 
 (/) Popham V. Eyre, Lofft. 786. 286. 
 
 (ci) Day V. Luhke, 5 Eq. 336. (/) Roberts v. Berry, 3 De G. M. 
 
 (h) Brooke v. Garrod, 3 K. & J. & G. 284 ; Tilley v. Thomas, sup. 
 608. {m) Wells v. 'iWaxwell, 32 Beav. 
 
 (i) Hudson V. Bartram, 3 Madd. 408. 
 440 ; Boehm v. Wood, 1 J. & W.
 
 WHERE THE DISPUTE RELATES TO TIME. 007 
 
 paid upon the puvchase-money, time will not be .strictly 
 regarded (■n). 
 
 Though time be not originally of the essence, yet, where Notice 
 there has been great and unreasonable delay on one side, negotia- 
 the other party has a right to fix a reasonable time within *'""^- 
 which the contract is to be completed, and that time will 
 be regarded and insisted on by equity (o). But the notice 
 to be effective must be reasonable (j*)). 
 
 (ii.) If time has been made of the essence of the con- Enlarge- 
 tract by agreement, or is considered so by reason of the ^V^^^ ,[1^^ 
 nature of the property, or becomes so by notice during waiver, 
 progress of the transaction, it may be enlarged or waived 
 by subsequent agreement, or by conduct of the parties. 
 Thus if negotiations go on after the fixed time has passed, 
 it amounts to a waiver (q), unless the negotiations were 
 expressly conditioned to be Avithout prejudice to the legal 
 position (■7-). And if, as in Seto7i v. Slade (s), the pur- 
 chaser is aware of the objections to the title, or if he 
 receives the abstract after the day appointed, or proceeds 
 with the purchase after the completion of the time fixed, 
 unless, at least, he does so under protest (t), he will be 
 held to have waived his right to object to the delay, and 
 will not be able to resist specific performance (w). Aiid 
 likewise, if a vendor receives and entertains the requisitions 
 of the purchaser after the time specified, unless he reserves 
 his right he will be deemed to have waived it (x). The 
 time within which objections are to be made to a title 
 ma}^, of course, be enlarged by the vendor's consent (y). 
 
 (iii.) The vendor maj^, it seems, insist upon the contract Ground of 
 being rescinded, where circumstances exist which render ^''^''^^''^"^' 
 it improbable that the purchase-money can be paid for a 
 
 (n) Webb v. Hurjhes, sup. (m) Pincke v. Curteis, 4 Bro. C. C. 
 
 (o) King v. Wilso7i, 6 Beav. 126. 329 ; Iloggart v. Scott, 1 Russ. & 
 
 (p) Wells V. Maxu-ell, siqx My. 293. 
 
 (q) Boijes v. Liddell, 6 Jur. 725 ; (x) Oakden v. Pike, 11 Jur. N. S. 
 
 Pegg v. Wisden, 16 Beav. 239. 666. 
 
 (r) Tilleij V. Thomas, sup. (y) Cutis v. Thodey, 13 Sim. 
 
 (s) Supyi-a, p. 603. 206. 
 (t) Magennis v. Fallon., 2 Moll. 576.
 
 608 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 long time, as the bankruptcy or death of the purchaser, 
 and the inabiUty of his representatives to get in assets (z), 
 and the omission to require payment of the deposit will 
 not deprive him of his right to insist that the contract be 
 rescinded, where he has taken other sufficient steps for 
 that purpose (a). 
 M((ia fides (iv.) Althongli time may be made of the essence of the 
 
 rejiels . „ . , 
 
 usual contract m reterence to any matter appearmg upon the 
 
 *"" ^- abstract, as, for instance, in taking objections to the title, 
 
 an exception from the ordinary rule will arise in such 
 
 case, and time will not be considered essential for taking 
 
 such objection, where there has been unfair dealing and a 
 
 plain want of bond fides on the part of the vendor; as 
 
 where the conditions were so framed as to deceive the 
 
 purchaser, or throw him off his guard {h). 
 
 Time when 2. Where time is not deemed an essential. 
 
 deemed The delay occasioning the objection will arise either 
 
 essential, from the conduct of the parties, or from the state of the 
 
 title. 
 
 Where (1.) From the conduct of the parties. 
 
 arises from (i-) The principal case shows the view taken by Courts of 
 
 conduct equity as to contracts generally ; namely, that the general 
 
 generally, object being Only the sale of an estate for a given sum, the 
 
 particular day named is merely formal, and that the 
 
 stipulation means in truth that the purchase shall be 
 
 completed within a reasonable time, regard being had to 
 
 all the circumstances of the case ; and as in the case of 
 
 mortgages, it acts on the general intention rather than 
 
 on the particular words of the stipulation. Tlie rule is, 
 
 then, that it will gi'ant the relief of specific performance, 
 
 notwithstanding a failure to keep the dates assigned by 
 
 the contract, if it can do justice to the parties, or if there 
 
 is nothing in the stipulations between the parties, the 
 
 nature of the property, or the surrounding circumstances 
 
 (2) Mackreth v. Marlar, 1 Cox, My. 236. 
 259. (b) Boyd V. Dickson, 10 I. E. Eq. 
 
 (a) Watson v. Bcid, 1 Euss. & 239.
 
 WHERE THE DISPUTE RELATES TO TIME. C09 
 
 which would make it inequitable to interfere with and 
 modify the legal right. At law the vendor was bound 
 to have his title deeds and abstract ready at the 
 appointed time. In equity it is not solely incumbent 
 upon the vendor to move by making a tender of the 
 abstract, but it is also incumbent upon the purchaser to 
 ask for it at the appointed day, or on such other day 
 as will leave sufficient time for the completion of the 
 contract. Otherwise the time would be considered as 
 waived (c). So if the abstract were delivered after the 
 appointed day, and the purchaser made no objection to 
 the delay, he would be considered to have waived it (d). 
 
 If, however, the vendor does not deliver his abstract 
 promptly, he of course cannot hold his purchaser to send 
 in his objections in the time limited, even though it may 
 have been stipulated that time in that respect should be 
 of the essence of the contract (e). 
 
 (ii.) Equity, however, does not go so far as to enforce Excep- 
 performance on a purchaser when the vendor has taken no ^ases. 
 steps whatever to complete the contract, and the purchaser 
 has without delay insisted on his deposit and refused to 
 proceed ; nor would it have granted an injunction to 
 restrain the purchaser from suing for his deposit at 
 law (/). Unreasonable delay will of itself be a bar to 
 either party obtaining a decree. " A party must show 
 himself ready, desirous, prompt, and eager," in calling for 
 the assistance of the Court (g), and a continual claim 
 without any active steps in support of it will not keep 
 alive a right which would otherwise be barred by 
 laches (h). 
 
 This rule has been relaxed where a strict application of 
 it would work injustice, as where after an agreement for a 
 
 (c) Guest V. Homfray,5Yes. 818; {/) Lloyd v. Collett, 4 Bro. C. C. 
 Jones V. Price, 3 Anstr. 924. 469. 
 
 (d) Smith V. Bur7iam, 2 Anstr. {g) Milvxird v. E. of Thanet, 5 
 527. Ves. 720, n. 
 
 (e) Uppei'ton v. Nickolson, 6 Ch. (li) Lchmann v. Mc Arthur, 3 Eq. 
 436. 746. 
 
 R R
 
 (ilO 
 
 SPKCIFIC TERFORMAXCE WITH A VARIATION. 
 
 From the 
 nature of 
 the title. 
 General 
 rule. 
 
 lease the intended lessee Lad entered into or remained 
 in possession, and no furtlier steps were taken to for- 
 mally complete the contract imtil fourteen years had 
 expired (/). But the fact that a purchaser has paid part 
 of the purchase-money is not sufficient to entitle him to 
 assistance, if he has lain by and delayed completion for 
 an unreasonable time (^;)- Equity will not countenance 
 parties in delaying matters with a view to see whether 
 the contract will prove advantageous or not, and accord- 
 ingly either to abandon it, or claim specific perform- 
 ance (l). Nor will a purchaser be aided who has taken 
 trifling and vexatious objections to the title, and shown a 
 disinclination to proceed {m), or is clearly unable to pay 
 the purchase-money (71). 
 
 The granting or withholding of specific performance 
 being discretionary, equity has sometimes refused to assist 
 a party who is out of time on the general ground that the 
 contract is inequitable, or the price unreasonable (o). 
 
 (2.) From the nature of the title. 
 
 The general rule is that if a vendor commence an action 
 for specific performance, he is entitled to assistance if he 
 can procure a good title at the time of the decree. It is 
 immaterial that he had not a title when entering into the 
 articles for sale (p). It ought, however, generally to be 
 made out in time for the certificate of the chief clerk, 
 though this has not uniformly been insisted upon (q). 
 
 Where the objection to the vendor's title is that there 
 is an interest outstanding in a third party, and the pur- 
 chaser buys up that interest, he can no longer resist 
 specific performance on the ground that it is not in the 
 vendor (r). 
 
 (i) Hhephcard v. Walker, 20 Eq. 
 659. 
 
 (A:) Harrin'itnn v. Wheeler, 4 Ves. 
 686. 
 
 (I) Alley V. Dcschamps, 13 Ves. 
 225. 
 
 (m) Hai/eg v. C'<ir)/ll, I Bro. P. C. 
 126. 
 
 (n) Gee v. Pearse, 2 De G. & Sm. 
 
 325 ; Aheraman Iron Works v. 
 Wirkem, 5 Eq. 485. 
 
 (o) Whonvooel v. Simpson, 2 Vern. 
 186. 
 
 (p) Lomjferrd v. Pitt, 2 P. Wm.s. 
 630. 
 
 (r/) Coffin V. Cooper, 14 Ves. 205. 
 
 (r) Mnrrell v. Goodyear, 1 De G. 
 F. & J. 432.
 
 WHERE THE DISPUTE RELATES TO TIME, Oil 
 
 The tendency of decisions is now a^^ainst the practice Tendency 
 
 •J ° "^ . of modern 
 
 of compelling a purchaser to take an estate of which the decisions, 
 title is not made out till after the time fixed by the 
 contract, and the purchasers have been allowed the benefit 
 of many slight circumstances in their favour ; for instance, 
 that a new suit has become necessary, or that an account 
 of debts remains to be taken in a suit, &c. (r). 
 
 3. Compensation. 
 
 In all cases in which specific performance has been Compensa- 
 <lecreed notwithstanding discrepancy in time or in sub- default in 
 stance of the contract, care has been taken that proper ti"^^ 
 compensation should be made, and the parties in fact put 
 in the same situation as if the contract had been strictly 
 fulfilled. 
 
 Ordinarily a purchaser is entitled to the profits of how 
 the estate from the time at which the contract ought to ''^ *^ ' ^ ^ 
 have been completed (s) ; and the vendor is entitled to Interest, 
 interest on the unpaid purchase money from the same 
 time (t). But where the purchaser was in default of 
 payment, under a contract by which the vendor was not 
 bound to give up possession until payment, and the 
 vendor, who occupied the property for the purpose of his 
 business, continued the business on his own behalf under 
 a pressure arising from the plaintiff's default, the vendor 
 was adjudged to receive interest on his money, but not 
 to pay an occupation rent for the premises from the 
 time when the contract was made (u). 
 
 Where no time is fixed for completion, interest is 
 usually payable by the purchaser from the time of taking- 
 possession (x). 
 
 In the case of sales by the order of the Court, if the Rfints and 
 estate be in possession, the purchaser will be entitled to 
 
 (»•) Lechnere v. Brasier, 2 J. & W. Bro. C. C. 396 ; Calcraft v. Roebuck, 
 
 289; Dulby v. Pullcn, 3 Sim. 29; 1 Ves. 221 
 Fraaer v. Wood, 8 Beav. 339. (m) Leyyutt v. Met. Ry. Co., 5 Ch. 
 
 (s) De Visme v. De V., 1 Mac. & 716. 
 G. 346. [x) Birch v. Joy, 3 H. L. 565. 
 
 (t) Loicther v. C. of Andover, 1 
 
 R R 2
 
 612 
 
 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 Acces- 
 sions. 
 
 Deteriora- 
 tions. 
 
 Improve- 
 ments. 
 
 Inquiry at 
 chambers. 
 
 the rents and profits from the quarter-day preceding his 
 purchase, he paying his purchase money before the follow- 
 ing one {y). If the estate be reversionary, the purchaser 
 will be entitled to any benefit from the dropping of lives 
 after the time of confirming the report absolute, and will 
 consequently be liable to pay interest from that time {z). 
 
 If there has been delay in making out the title, and 
 the property has deteriorated by dilapidations or mis- 
 management, compensation will be allowed to the pur- 
 chaser (ft), but not for deterioration after the time when 
 he ought to have taken possession (6), and of course not 
 for deterioration occasioned by himself (c). 
 
 Timber blown down after the contract will belong to 
 the purchaser {d) ; and if common timber be felled after 
 that time by the vendor, compensation must be paid to 
 the purchaser (e). If the vendor, on the contrary, after 
 the contract, lays out money in improvements, he cannot 
 call upon the purchaser to repay it (/). In the absence 
 of any express stipulation, the expenses and outgoings of 
 property sold must be borne by the vendors, down to the 
 time when the purchaser could prudently take possession, 
 i.e., when a good title can be shown {g). 
 
 When time is of the essence of the contract, and the 
 purchaser obtains a decree for specific performance, he will 
 be entitled to compensation for the loss which he has 
 sustained in consequence of possession not having been 
 given to him according to the contract {h). 
 
 The general method of ascertaining the amount payable 
 for compensation, is by directing an inquiry to that effect 
 by the chief clerk in chambers. 
 
 {y) MackreU v. Hu7it, 2 Madd. 
 34, n. 
 
 (2) Exp. Manning, 2 P. Wms. 
 410; Davy v. Barber, 2 Atk. 489. 
 
 (a) Foster v. Deacon, 3 Madd. 
 394. 
 
 (b) Binks V. Rokeby, 2 Sw. 226. 
 
 (c) Harford v. Furrier, 1 Madd. 
 532. 
 
 (d) Poole V. Shergold, 2 Bro. C. C. 
 118. 
 
 (e) Magennis v. Fallon, 2 Moll. 
 591. 
 
 (/) Monro v. Taylc/r, 8 Ha. 60. 
 
 (g) Caii'odus v. Sharp, 20 Beav. 
 56. 
 
 (/() Gedge v. Montrose, 26 Beav. 
 45.
 
 WHERE DISPUTE RELATES TO VENDOR'S INTERKST. G13 
 
 II. Where the Dispute relates to the Quantity or Quality 
 of the Vendoi''s interest. 
 
 The consideration of these cases naturally falls into Disputes 
 two divisions, according as to whether the vendor or quantity 
 the purchaser is plaintiff ; but it must be remembered ^"'\. 
 
 , . . . . . quality. 
 
 that in all cases the condition on which these suits are 
 entertained is that of compensation for the error or mis- 
 description. It follows that the deficiency or difference Compensa- 
 alleged must be such as to admit of the proper compensa- ^g caicul- 
 tion being adequately calculated. Accordingly relief will *^^®- 
 be refused where, from the nature of the property or the 
 nature of the dispute the Court considers itself unable to 
 fix or ascertain the amount proper to be allowed (i). 
 
 1. Where the vendor seeks specijic performance. Vendors' 
 
 At law, when a person contracted to sell a given interest, generally. 
 for instance a given term of years, and it turned out that 
 the interest was less than was represented, the purchaser 
 might recover the deposit and rescind the contract, not- 
 withstanding that the vendor might offer compensation. 
 But in equity, if the purchaser can get substantially Avhat 
 he contracted for, the vendor can enforce specific perform- 
 ance against him, allowing compensation for the difference 
 in value. But the amount of variation which equity will 
 recognise as admissible without destroying the contract, is 
 of course a matter of degree. In general terms, the mis- DifJerence 
 description must not be substantial. The particular be"gui>'^ 
 inquiry is, what is, and what is not considered substantial, stantial. 
 
 (1.) The difference often relates to the tenure of land ; Differ- 
 and it is established that a purchaser cannot be required ten^^re° 
 to accept land of a different tenure from that for which he What 
 bargained. Thus leaseholds, however long the term, or ^^^^ 
 copyholds, cannot be substituted for freeholds (k), nor free- stantial. 
 
 (i) Re Bunburi/'s Estate, 1 I. R. & G. 109. 
 Eq. 458 ; Ridgway v. Gray, 1 Mac. (k) Brew v. Corp, 9 Ves. 368.
 
 614 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 hold fur copyhold (/) ; though where the conditions of sale 
 left the tenure doubtful or barred any objection on this 
 ground, and the difference in value was slight, performance 
 was enforced (m). Similarly a perpetual rent-charge will 
 not sufficiently answer the description of a fee simple (n), 
 nor can a purchaser be compelled to take an underlease 
 instead of an original lease (o). And where the term of a 
 leasehold turns out to be largely different from what was 
 represented, the vendor will not be able to enforce his 
 bargain, e.g., where the contract was for a sixteen years' 
 lease, and the term offered was only six (^j). A purchaser 
 of an entirety would not be obliged to take an undivided 
 share of the estate (q), nor a remainder instead of an 
 estate in possession (r), nor an estate subject to unusual 
 easements (s), or to an undisclosed reservation of 
 minerals (t). 
 What not. Ou the other hand, where there are undisclosed quit- 
 rents, and rent-charges, at any rate if of small amount, they 
 are considered fit subjects for compensation (u) ; and simi- 
 larly, where there was a small error as to the term of a 
 lease (x), or a mistake as to the amount of quit-rents 
 sold (?/). 
 Waiver by Objections to the tenure may be waived by the conduct 
 purchaser, of the purchaser, as by his proceeding with the treaty after 
 notice of the nature thereof, though by such waiver he 
 does not lose his claim to compensation on perform- 
 ance (z). 
 Differ- (2.) Another class of cases is where the misdescription 
 
 quantity relates to the quantity or the boundaries of the estate 
 
 {I) Ayles V. Cox, 16 Beav. 23. 390. 
 
 (m) Price v. Macaulay, 2 De G. (t) Uppe)-ton v. yickolso7i, 6 Ch. 
 
 M. & G. 339. 436. 
 
 {n) Prendergast v. Eyre, 2 Hogan, (u) Esdaile v. StepheTison, 1 S. & 
 
 81. S. 122; Hornihloio v. Shirley, 13 
 
 (o) Madeley v. Booth, 2 De G. & Ves. 81. 
 Sm. 718. (x) Hahey v. Grant, 13 Ves. 77. 
 
 (p) L(n\g V, Fletclier, 2 Eq. Ca. (y) Cuthbert v. B ike); cited Sugd. 
 
 Ab. 5, pi. 4. V. & P. concise view, 219, ed. 1851. 
 
 (q) Att.-Gen. v. Day, 1 Ves. 218. (z) Fordyce v. Ford, 4 Bro. C. C. 
 
 (r) Collier v. Jenkins, You. 295. 494 ; Calcraft v. Roebuck, 1 Ves. jr. 
 
 («) Scaniaa v. Vandrey, Itj Ves. 221.
 
 WHERE DISPUTE RELATES TO VENDOR'S INTEREST. 615 
 
 sold. Though the vendor fails to make a title to a small "r \^oun- 
 
 , • n 1 • n 1 • • -11 daries 
 
 portion 01 the estate, ii such portion is not material to the compen- 
 possession and enjoyment, specific performance with com- •'''^*"| '^ 
 pensation will be decreed (a) ; but not if the portion is and not 
 material, as where the contract is for a wharf and a jetty, gn'-)^,Yn"ent' 
 and it turns out that the jetty is liable to be removed by 
 the Corporation of London (6). 
 
 So also if a purchaser in the same contract agrees to 
 purchase an estate for a fixed price, and also something 
 else not essential to the enjo}Tiient of the estate, but only 
 a small adjunct of it, and a good title to this adjunct 
 cannot be made, the sale of the estate alone will be en- 
 forced ; for instance, a contract to buy an estate for £24,000 
 and the furniture thereon at a valuation (c). Seciis if the 
 adjunct is essential to the enjoyment of the pro]3erty, as 
 the fixtures of a public house (d). 
 
 In the case of an estate being sold by auction, after Sales by 
 which it is found that a good title cannot be made to some lots. 
 of the lots, specific performance will be decreed, unless the 
 lots as to which the failure occurs are complicated with 
 the others (e) : but everything depends in such a case 
 upon the nature of the property ; for instance, if a farm 
 were sold along with a house for residence thereon, and 
 the title to the house failed, the rest of the contract would 
 scarcely be enforced. 
 
 Where lands are described as of or about a certain Effect of 
 acreage, or of a certain acreage " be the same more or less," mate^de- 
 after actual conveyance to a purchaser he has no title to scription. 
 an abatement, though they should turn out considerably 
 short of the figure named. But if he discovers the error 
 before conveyance, unless it is of trifling extent, he may 
 claim abatement (/). If, however, the vendor knew the 
 
 (a) M'Queen v. Farquhar, 11 Ves. (d) Darhey v. mdtakei; 4 Drew. 
 
 467. 134. 
 
 (h) Pcei-s V. Lambert, 7 Beav. 54(5 ; (c) Poole v. Sheryold, 2 Bro. C. C. 
 
 Perkins v. Edv, 16 Beav. 193. 118. 
 
 [c) Rkhanlson v. ^mith, 5 Cb. (/) ///// v. Buckley, 17 Ve.s. 394 ; 
 
 648. W'titrh V. TT7«c7(C5^t)-, 1 V. & B. 375.
 
 616 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 true quantity, the use of such phrases would not protect 
 liim from liability to compensate ; nor would the pur- 
 chaser's intimate acquaintance with the estate relieve the 
 vendor (g). 
 
 If lands are purchased on the usual condition as to 
 compensation for misdescription, and they prove to exceed 
 the estimate, though the purchaser can enforce perform- 
 ance on paying compensation, the vendor cannot compel 
 him to complete and pay a larger sum than he contracted 
 to pay (h). 
 Pur- ^ 2. Where the 2^urchaser seeks specific performance. 
 
 suits. Ttie general rule is that a purchaser may, if he chooses. 
 
 Purchaser compel a Vendor who has contracted to sell a larger 
 
 can usually ^ _ i • i 
 
 claim per- interest in an estate than he has, to convey to him such 
 vdth abate- interest as he is entitled to, with compensation (i), and 
 ment. this, whether the difference is one of tenure or of 
 
 quantity (k). 
 Excep- Where, however, the title of the vendor is doubtful or 
 
 defective, it has been held that the purchaser cannot 
 Large compel E Conveyance of such interest as he has (I) ; and 
 error. ^}^g Same was held where there was a difference of nearly 
 one-half arising from the vendor's mistake between the 
 representation and the fact (wi). 
 Notice. If the purchaser, at the time of the contract, knows of 
 
 the limited interest of the vendor, he will not be able to 
 insist upon a conveyance of such interest witli compen- 
 sation (n), and the neglect of a purchaser to make proper 
 inquiries may disentitle him from claiming compensation 
 for some defect which with ordinary care he might have 
 discovered (o), as where a vendor has contracted to sell 
 
 ig) Kinrj V. Wihon, 6 Beav. 124. McKenzie v. Hesketh, 7 Ch. D. 675. 
 
 (h) Price V. North, 2 Y. & C. Ex. [l) WiUiams v. Jliyden, 1 C. P. 
 
 620. 500. 
 
 (i) Mm-Uock V. Buller, 10 Ves. (m) Wheateley v. Slade, ^^^.12^. 
 
 315. (?i) Laiorenson v. Butler, 1 S. & L. 
 
 (k) Hv'jhes V. Jones, SDeG.F.&J. 1-3 ; Harnett v. Yeilding, 2 S. & L. 
 
 307; Wood v. 6'r(^Vi,WilsonCh.Kep. 549 ; Castle v. Wilkinson, 5 Ch. 534. 
 
 44 ; Leslie v. Crommelin, 2 I. R. Eq. {o) Edwards- Wood v. Majoribanks, 
 
 134 ; Hoopa- v. Smart, 18 Eq. 683 ; 7 H. L. 806.
 
 WHERE DISPUTE RELATES TO VENDOR'S INTEREST. 617 
 
 certain property which the purchaser knew to be in the 
 occupation of a tenant, and it turned out that the tenant 
 had an agreement for a lease {p), the occupation being 
 considered to amount to constructive notice of the lease. 
 But it appears that the doctrine of constructive notice is 
 not generally applicable to such cases, and that at least it 
 would not suffice in a vendor's suit {q), or in a purchaser's 
 suit to give a title to compensation in respect of the tenant's 
 interest (?'). 
 
 Where, however, the statement as to quantity was Mistake 
 simply a mistake, and it would be plainly unjust to the opt-j^n^to'^ ^ 
 vendor to decree specific performance with compensation, rescind, 
 the purchaser has been required to elect whether he would 
 perform the contract without compensation, or have his 
 bill dismissed (s) ; in this case there was a difference of 
 nearly one-half in the acreage stated. 
 
 The right to compensation also may be excluded by Express 
 express contract, as by a stipulation to that effect con- to^con- ^'^^ 
 tained in the conditions of sale if), unless such a condition trary. 
 may be construed so as to extend only to small accidental 
 inaccuracies {u). The right, however, is not excluded by a 
 mere condition that he shall not object to complete the 
 purchase if the quantity should turn out less than was 
 stated in the particulars {x) ; nor by acts on his part which 
 merely amount to a waiver of objections to the title {y). 
 It may be excluded by the vendor rescinding the contract 
 under a condition empowering him to do so, if unwilling 
 or unable to make a satisfactory title {z) ; but not if the 
 vendor sold the property under such a condition knowing 
 his title to be defective, or has been guilty of wilful mis- 
 representation (a) ; and notwithstanding such condition, if 
 
 (p) James v. Lichfield, 9 Eq. 51. (x) Frost v. Brewer, 3 Jur. 165. 
 
 Iq) Caballero v. Hcnty, 9 Ch. 447. (y) Calcraft v. Roebuck, 1 Ves. jr. 
 
 (7-) PhiUips V. MiUer, 10 L. R. C. 221. 
 P. 428. (2) Mawson v. Fletclier, 6 Ch. 91 ; 
 
 (s) Earl of Durham v. Legard, 34 10 Eq. 213 ; DuddeU v. Simpson, 2 
 
 L. J. Cli. N. S. 589. Ch. 102. 
 
 (t) Cordinrjley v. Chceseborouyh, 3 (o) Ndthorpc v. Hohjatc, 1 Coll. 
 
 Giff. 496. 203 ; Price v. Macaulay, 2 De G. M. 
 
 ((() Whittcncore v. W., 8 Eq. 603. & G. 347.
 
 618 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 the purchaser is willing to waive all objections to the 
 title, he is entitled to take the property without compen- 
 sation (h). 
 
 The right to rescind may, moreover, be lost by the 
 vendor's replying to the purchaser's objections or requi- 
 sitions (c), and by acquiescence in, or confirmation of the 
 contract ((/). 
 
 (b) Page v. Adam, 4 Beav. 269. (d) Cole v. Gibbons, 3 P. Wms. 
 
 (c) Tanner v. Smith, 10 Sim. 410. 290 ; Attwood v. Small, 6 CI. & F. 424.
 
 619 
 
 CHAPTER VI. 
 
 INJUNCTIONS. 
 
 In some respects analogous to the equitable remedy of Injunction 
 specific performance, is the equally characteristic remedy ^^itT^^'^ 
 of injunction. A decree of specific performance, as its specific 
 name implies, enforces the performance of some specific act. ance. 
 An injunction is the very converse ; it judicially forbids 
 the performance of some specific act or series of acts. 
 
 From the nature of the case the remedy of specific 
 performance only applies to cases arising out of contract ; 
 since it rarely happens apart from contract that one 
 person has a right to the performance of a particular act 
 on the part of another. 
 
 On the contrary, the cases for which injunction is a 
 proper remedy have usually no connexion with contract. 
 There are, indeed, cases in which one person contracts with 
 another not to do a certain act ; and such negative con- 
 tracts may, as we have seen, be specifically enforced by 
 means of injunction (a). But a gi-eat majority of the cases 
 in which one person seeks to prohibit a certain act, depend 
 on rights which avail against all the world; or to use the 
 technical language of jurisprudence, depend on jura in rem 
 not on obligationes. As far, however, as regards the 
 remedy, there is little importance in the distinction. 
 Whether the negative duty, or duty to abstain, be con- 
 tractual or general, the injunction which enforces it is the 
 same in nature and in form. 
 
 ('() P. .590. Ltun'ci/ V. Wr'gncr, 1 De G. M. & G. 615.
 
 620 
 
 INJUNCTIONS. 
 
 Definition, 
 
 Interlocu- 
 tory or 
 peqjetual. 
 
 Manda- 
 tory in- 
 junctions. 
 
 An injunction may be described as a judicial process 
 whereby a party is required to do a particular thing or to 
 refrain from doing a particular thing. There is, however, 
 a marked contrast between injunctions which command 
 and injunctions which forbid the doing of an act. The 
 former only issue after decree, and are of the nature of an 
 execution to enforce the same. The latter may be either 
 interlocutoiy or perpetual. Interlocutory injunctions are 
 made pending the hearing of the cause upon the merits, 
 and are generally expressed to continue until such hearing 
 or until further order. Perpetual injunctions are such as 
 form part of the decree made at the hearing upon the 
 merits, and perpetually restrain the defendant from the 
 assertion of a right or the commission of some act contrary 
 to equity : they are in fact final decrees. 
 
 Interlocutory injunctions are merely provisional and 
 do not conclude a right. Their object is to preserve the 
 property subject to litigation in statu quo until the 
 hearing or further order, and may be obtained by 
 a plaintiff who shows that he has a fair question 
 to raise as to the existence of the right which he 
 alleges (a). 
 
 Though a Court of equity has no jurisdiction in the 
 absence of contract to compel the performance of a positive 
 act, such as the removal of a work already executed, it may, 
 by framing the order in an indirect form, compel a de- 
 fendant to restore things to their former condition. Such 
 orders are called mandatory injunctions (6). This juris- 
 diction is, however, only exercised in cases which admit of 
 no other adequate remedy, and their occurrence is unfre- 
 quent. This species of relief will always be refused if the 
 injury can be reasonably recompensed by damages, or even 
 if the balance of convenience is strongly on the side of 
 the defendant (c). 
 
 (a) See Kerr on Injunctions, 
 pp. 11, 12, ed. 2. 
 (6) Kerr Inj. p. 50. 
 
 ((•) Dccrc V. Guest, 1 My. & C. 
 516 ; Jacomb v. Kniylit, 3 De G. J. 
 
 & S. 5^38.
 
 INJUNCTIONS. 02 1 
 
 The jurisdiction of equity to decree injunctious arose, <^"?"\"f 
 like that of specific performance, from the want of an diction, 
 adequate remedy at law. The common law had, indeed, 
 in certain cases, the power of prohibiting the committal of 
 wrongs ; for instance, waste could be restrained by the writ 
 of prohibition and estrepment of waste. But the cases in 
 which the common law supplied remedies of this nature 
 were very few, and the procedure by which they were 
 applied was cumbrous and inconvenient, so that the 
 assistance of equity was at an early period found necessary 
 for the proper administration of justice ; and when this 
 jurisdiction was established, the superiority of its process 
 gradually caused the inferior remedies of law to fall into 
 desuetude. 
 
 The following is in substance the enumeration given by Classifica- 
 a learned author of the circumstances in which the remedy iniunc- 
 of injunction has been most commonly applied (d). tions. 
 
 1. To stay proceedings in Courts of law. 
 
 2. To restrain the indorsement or negotiation of nego- 
 tiable instruments, the sale of land, the sailino; of a ship, 
 the transfer of stock or the alienation of a specific chattel. 
 
 3. To prevent the wasting of assets or other property 
 pending litigation. 
 
 4. To restrain trustees from assigning or improperly 
 dealing with the legal estate or trust property. 
 
 5. To prevent the removing out of the jurisdiction, 
 marrying, or having any intercourse which the Court dis- 
 approves of, with a ward. 
 
 6. To restrain the commission of every species of waste. 
 
 7. To prevent the infringement of patents and the viola- 
 tion of copyright. 
 
 8. To prevent the continuance of public or private 
 nuisances. 
 
 9. To prevent multiplicity of suits and vexatious liti- 
 gation. 
 
 It will be observed that this enumeration admits of a 
 
 (rf) Eden on Injunctions, p. 1.
 
 622 
 
 INJUNCTIONS. 
 
 Injunc- 
 tions 
 against 
 equitable 
 wrongs. 
 
 Injunc- 
 tions 
 against 
 legal 
 
 division into two strongly distinguished classes of cases ; 
 first, those in wliich the wrong restrained is one which is 
 regarded as such in equity only, and in which, accordingly, 
 the ground of the jurisdiction is the absence of a legal 
 remedy altogether ; secondly, those in which the wrong 
 restrained is both legal and equitnble, in which, therefore, 
 the ground of the jurisdiction is the superiority of the 
 equitable to the legal remedy. 
 
 The former class comprises, — first, injunctions which are 
 designed to prevent the abnse of legal processes, under 
 circumstances which render it inequitable to apply them ; 
 secondly, injunctions protecting equitable estates and 
 interests not recognised at law. 
 
 The latter class includes, — first, injunctions protecting 
 common rights as to the enjoyment of land ; secondly, 
 injunctions protecting the peculiar rights arising from 
 patents, copyright and the use of trade marks. 
 
 The enumeration above quoted does not indeed pretend 
 to be exhaustive ; nor is it possible to specify every case 
 to which the remedy of injunction might be applied. 
 Wherever a plaintifi:" is equitably entitled in rem or in 
 'personam to restrain the commission or continuance of an 
 act, he may be aided by means of injunction. The cases 
 here given copiously illustrate the circumstances in which 
 the remedy is most usually sought ; and whatever other 
 cases may suggest themselves will be found to fall easily 
 within one or other of the classes indicated.
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES: 023 
 
 Section I. — Injunctions restraining Wrongs purely 
 Equitable. 
 
 I. To prevent the abuse of Legal Processes. 
 
 Earl of Oxford's Case. 
 II. To 'protect Equitable Estates and Interests, 
 
 I. Injunctions to prevent the abuse of Legal Processes. 
 
 The most important class of cases falling under this 
 description is that on which one of the oldest, and most 
 famous of authorities is — 
 
 THE EARL OF OXFORD'S CASE 
 
 [1 Ch. Eep. 1 ; 2 Wh. & T. L. C. 590]. 
 
 This case is celebrated in history on account of the warm 
 dispute which arose therefrom between Lord Chancellor 
 Ellesmere, and Lord Chief Justice Coke. The former in- 
 sisted on the right and jurisdiction of equity to restrain 
 persons who had obtained judgments at law from making 
 such judgments instruments of inju.stice. He did not 
 pretend to a power to overrule the judgment, but 
 merely to prevent the party obtaining it from acting upon 
 it contrary to conscience. The latter, however, considered 
 the exercise of this power as an encroachment upon the 
 jurisdiction of the Courts of common law. So far did the 
 contention go that indictments were preferred at Coke's 
 instigation against the parties who had filed their bill in 
 Chancery, their counsel and solicitors ; and on the other 
 hand, the Attorney-General was directed to prosecute in 
 the Star Chamber those who had preferred the indict- 
 ments. 
 
 In the event tlie jurisdiction of equity contended for 
 was firmly established. And reasonably so, for it con- 
 sisted not in any assumption of superiority to the Courts
 
 024) injunc:tions restraining equitable wrongs. 
 
 of law, but in the assertion of a right to control the acts of 
 the parties concerned, according to principles of conscience 
 and equity. 
 
 The recent history of this head of equitable jurisdiction 
 shows by what steps it has come to be at present of very 
 small effect and importance, compared with what it 
 formerly had. 
 C. L. P. 1. First, by the Common Law Procedure Act, 1854 (e), 
 
 Act, 1854. -J. ^^g enacted (/) that equitable pleas and replications 
 might be made use of at law. The effect of this might 
 have been to have rendered the interference of equity on 
 behalf of the defendant at law in the future unnecessary. 
 But this effect was prevented by the narrow construction 
 put upon the Act by the common law judges, who held 
 that no equitable plea was good unless it disclosed facts 
 which would entitle the defendant to a perpetual and un- 
 conditional injunction in equity (g). Thus in a multitude 
 of cases, applications to the Court of Chancery continued 
 to be necessary. Moreover, the Act only gave an option 
 to the defendant at law to plead an equitable defence ; it 
 still left him the j)Oiver of proceeding in equity for an 
 injunction as before (It). 
 Jud. Acts. 2. By the Judicature Acts, 1873 and 1875 {i), the prin- 
 cipal previously existing Courts of law and equity were 
 consolidated into the Supreme Court of Judicature, con- 
 sisting of Her Majesty's High Court of Justice and Her 
 Majesty's Court of Appeal ; and it was enacted that in 
 every division thereof law and equity should be concur- 
 rently administered. Further, by section 24, sub-s. 5 of 
 the Act of 1873, it is enacted that "no cause or proceed- 
 ing at any time pending in the High Court of Justice 
 or before the Court of Appeal shall be restrained by pro- 
 hibition or injunction ; but every matter of equity on 
 which an injunction against the prosecution of any such 
 
 (c) 17 & 18 Vict. 0. 12.5. 453. 
 
 ( f) Sect. 83. (0 36 & 37 Vict. c. 66, and 38 & 
 
 (ff) Jeffs V. Da;/, L. R. 1 Q. B. 374. 39 Vict. c. 77. 
 
 (A.) (iompcrtz v. PooJey, 4 Drew,
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. C25 
 
 cause or proceeding might have been obtained if this Act 
 had not passed, either unconditionally or on any terms or 
 conditions, may be relied on by way of defence thereto : 
 Provided always, that nothing in this 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 
 this Act had not passed, to apply to any Court to restrain 
 the prosecution thereof, or who may be entitled to enforce 
 by attachment or otherwise any judgment, decree, rule, or 
 order 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 order as shall be just." 
 
 The result of this legislation is to put a stop in general Effect of 
 to mjunctions agamst judicial proceedings ; providing m- ° 
 stead thereof a power for any division of the High Court 
 to order a stay of its own proceedings, and in applications 
 for this purpose to consider and give weight to those prin- 
 ciples of equity which were previously invoked for the 
 purpose of obtaining an injunction. 
 
 3, Still, there are cases not affected by the Judicature Cases not 
 Act in which this equitable procedure may be accordingly ^^^^ 
 appealed to ; and it is therefore not idle to consider the 
 principles by which it was and may be still directed. 
 
 In the first place, it is to be observed that the old juris- 
 diction remains in force as regards proceedings in all 
 Courts not comprised by the Judicature Acts in the High 
 Court of Justice. 
 
 Thus the Chancery Division may restrain a person Suits in 
 within its jurisdiction from taking proceedings in Courts q^uiI" 
 out of its jurisdiction — for instance, in Scotland, Ireland, restrained. 
 the colonies, or in foreign countries. But no more in these 
 
 s s
 
 020 
 
 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 And in 
 Eiiiili.sh 
 Courts not 
 affected 
 by the 
 Acts. 
 
 Court of 
 Bank- 
 ruptcy. 
 
 In what 
 circum- 
 stances 
 granted. 
 
 cases than formerly in granting injunctions against pro- 
 ceedings in the ordinary Courts of" law does equity affect 
 to control, or overrule, or examine the judicial or adminis- 
 trative action of the foreign tribunals. It addresses its 
 decree to the person within its jurisdiction, forbidding his 
 action (/•). 
 
 Again, tliere are certain Courts in England which were 
 not affected by the Judicature Act, and which, therefore, 
 continue to be ruled by the old principles and procedure. 
 One instance of this is the Lord Mayor's Court in 
 London ; and if from any circumstances it were inequit- 
 able that a person should take or continue proceedings 
 therein, there seems no reason why he should not as 
 formerly be restrained by a Court of equity (l). Other 
 local Courts in England fall within the same principle. 
 
 4. Conversely with these cases, the Court of Bankruptcy, 
 which is not affected by the Judicature Act, retains its 
 former power of I'estraining actions in other Courts under 
 the circumstances coming under its special cognisance (m). 
 
 5. There being, therefore, cases in which injunctions 
 against legal proceedings may still be sought in equity, it is 
 not immaterial to inquire into the circumstances which 
 will be deemed to warrant such application ; especially 
 since in cases in which an injunction is no longer the proper 
 remedy, the same circumstances which formerly warranted 
 it will now entitle a defendant to a stay of proceedings. 
 
 Lord Ellesmere in the principal case gave certain illus- 
 trations of the circumstances in which the Court had 
 interfered to stay proceedings at law, on the grounds of 
 some equity of which the defendant coiild not avail him- 
 self in a Court of law, but to which he might appeal as a 
 suppliant in Chancery. The following heads have been 
 specified as comprising the various grounds on which 
 .such interference of equity might be sought : — accident, 
 
 (k) PorUirlinyton v. Sovlby, .3 My. 
 k. K 106 ; Hoie v. Carnfqir, 1 Ch. 
 S20 
 
 (n Mihhal V. Neate, 1 Dick. 279 ; 
 Cottcsuorth V. St/jJioif:, 4 Ha. ] S."). 
 (m) Exp. Ditton, 1 Ch. D. br>7.
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. 027 
 
 mistake, fraud, accounts, illegal and immoral coutracts, 
 penalties and forfeitures, breaches of covenants, adminis- 
 tration of assets, marshalling of securities and suretyship (n). 
 The distinction between equitable and legal doctrines 
 and practice as to these matters have already been 
 expounded under the various headings of this work, and of 
 course need not now be particularly referred to. It suffices 
 to adduce a few illustrations of the operation of the juris- 
 diction in the cases in which it still applies, at the same 
 time contrasting it with the procedure by which in other 
 cases the same result is now reached. 
 
 First, however, we may premise that it was always Equitable 
 necessary for a plaintiff seeking an injunction against quired, 
 legal proceedings to establish some special equitable title 
 to relief — the remedy was not given on the ground of matter 
 which might be alleged in defence at law (o); and thus the 
 amendment of the law effected by the Common Law Pro- 
 cedure Act, 1854, already quoted, reduced the nimiber of 
 cases in which the remedy of injunction was available (29). 
 Moreover, the principle of injunctions cannot be so applied Mere error 
 as to amount in effect to an appeal from a Court of law. sufficient. 
 An injunction will never be granted against the execution 
 of a judgment on the mere ground of its being a decision 
 erroneous at law (q). Still less where the result has been 
 produced by the negligence of the party seeking relief (r). 
 The illustrations adduced will show the nature of the 
 special equitable claims which form proper grounds for 
 seeking the remedy. 
 
 6. Perhaps there is no class of actions in which the 
 remedy of injunction has been so frequently applied as in 
 those of creditors against the legal personal representa- 
 tives of deceased persons. 
 
 In some of such cases the injunction is sought and Exeon- 
 
 (n) Eden on Injunctions, 4; Joyce Drew, 122, and cf. Gomprrttv. Poolei/, 
 
 on Injunctions, 1053, 12.')?. 4 Drew, 453. 
 
 (0) Harrison v. Nettlcship, 2 My. (7) Simpson v. Howden, 3 My. & 
 
 & K. 423, Cr. 108. 
 
 [p) Far ehr other v. WeU-hman, 3 {r) Bateman\.WiUoe,\^.kJj.2Qi 
 
 SS2
 
 028 
 
 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 tors and 
 adminis- 
 trators 
 protected. 
 
 Stay of 
 proceed- 
 ings. 
 
 General 
 
 creditors 
 
 protected, 
 
 Present 
 practice. 
 
 granted for the protection of the executor or administrator. 
 At law, when the legal personal representative had once 
 acquired possession of or become chargeable with sufficient 
 property of the deceased to discharge his debts, he remained 
 chargeable, notwithstanding any accident, such as robbery 
 or fire, which might destroy the property before its distri- 
 bution ; and it mattered not how free from default he may 
 have been, or how great the liability thus devolving upon 
 him personally. But in equity the hardship and injustice 
 of a creditor's action under such circumstances was 
 recognised, and on the application of the executor or 
 administrator, a Court of equity would issue an injunc- 
 tion forbidding the creditor to continue his proceedings at 
 law (s). 
 
 Under the present practice, the Courts of law would 
 themselves stay proceedings under these circumstances, or 
 else direct a verdict for the defendant at the trial (t). 
 
 7. In another class of cases an injunction was obtain- 
 able for the protection of the general creditors. We have 
 elsewhere seen that executors had at law large powers of 
 preference with regard to the payment of the debts of their 
 testator. To prevent the unfair exercise of this preference, 
 Courts of equity encouraged suits for the general adminis- 
 tration of estates, in which their decrees differed from a 
 judgment at law in that they were equally in favour of all 
 creditors. After the granting of such a decree, equity was 
 wont to restrain all actions brought by individual creditors 
 at law (u). 
 
 Under the present practice, a Court of law would stay 
 proceedings in such an action (x), and the Judge in whose 
 Court the administration action is pending has power, 
 without any further consent, to order the transfer to him- 
 self of any action pending in any other division of the Court 
 
 (.s) Crosse v. Smith, 7 East, 258 ; 
 Croft V. Lyndsey, Freem. I. 
 (t) Job V. /., 6 Ch. D. .562. 
 (») Morrke v. B. of En<jland, Ca. 
 
 t. Talb. 217; 4 Bro. P. C. 287 ; Rush 
 V. lliggs, 4 Ves. 638. 
 
 (x) Croide v. Russell, 4 C. P. D. 
 186.
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. C29 
 
 brought by or against the executors or administrators 
 whose assets are being administered (i/). 
 
 Similar to these cases were those in which actions at Injunc- 
 law were commenced against a company after proceedings wiiidino-. 
 had been taken in equity for its winding-up. These cases "P- 
 are now also provided for by the rule of Court above 
 referred to. 
 
 8. Other illustrations of the granting of similar injunc- Equitable 
 tions are afforded by cases in which instruments legally against 
 binding have been obtained by such actual or constructive ^^s^^ '"' 
 
 ° , "^ _ _ , stnxments. 
 
 fraud as confers an equitable title to relief against them. 
 Such matters can now, of course, be pleaded in defence in 
 any division of the Court ; formerly the relief took the 
 form of an injunction restraining legal proceedings on the 
 instrument (z). 
 
 9. AVhere, again, the legal and equitable titles to pro- Trust 
 perty were in different people, an action at law by the protected. 
 person having the legal estate was restrained by injunction. 
 
 Thus sejDarate estate limited to a married woman without 
 the intervention of trustees, was protected against the 
 judgment creditors of her husband by this means. The 
 creditors, indeed, obtained a legal title through the hus- 
 band ; but he being in equity a trustee, their execution 
 was restrained by injunction (a). 
 
 10. The desire to avoid multiplicity of actions was Injunc- 
 also a frequent ground of injunctions to stay proceedings, against 
 A party was never suffered to sue for the same thing; at the muitipU- 
 
 • • • 11 T^Ti 1- • • city of 
 
 same time in equity and at Jaw. U hen litigation was actions. 
 
 pending in one Court in which complete relief could be 
 
 had, and it was sought to institute proceedings elsewhere, 
 
 the person so attempting was restrained by injunction (b) ; 
 
 d fortiori if the design of the foreign proceedings was to 
 
 gain some unfair advantage, as where a creditor who had a 
 
 (y) Order LI., rule 2a, June, 1876. & Vv. 408. 
 
 (;) Lhvid V. Clark, t5 Bcav. 309 ; {b) Carron dc. Co. v. Madaren, 
 
 Tyler V. yatcs, 11 Eq. 265. 5 H. L. 416, 437 ; Harrison v. Our- 
 
 (a) Newlands v. Payntcr, 4 My. )icy, 2 J. & W. 563.
 
 630 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 specific charge upon a part of the testator's real estate came 
 
 in under a decree in a general administration suit, and 
 
 then claimed to prove in a creditors' suit which he had 
 
 instituted in Ireland (c). 
 Conflicting Formerly, where there were conflicting suits in equity 
 law and in ^^^'^ ^t law, the party was put to his election to carry on 
 equity. Qj^g Qj. ^}^(3 other ((/). Now, such suits would probabl}'', by 
 
 means of a transfer to the same Court, be heard together. 
 
 As regards suits in foreign Courts, the law seemingly 
 
 remains on the same footing as before. 
 Foreign XI. In the case of foreign suits, even though no decree 
 
 suits, when ..,.,. .„ ... , 
 
 restrained, has been obtamed m this country, yet it a suit instituted 
 abroad appears ill-calculated to answer the ends of justice, 
 it may be restrained (e). And where there has been no 
 question as to the necessity of the foreign litigation, a 
 person within the jurisdiction of the Court of Chancery has 
 been restrained from proceedings which are deemed by it 
 contrary to good conscience, such as a suit to recover a 
 gambling debt (/). 
 
 The fact of a foreigner having property in this country 
 enables the Court to make effectual an injunction issued 
 against him (g). 
 
 On the contrary, where such interposition would not 
 tend to equality of all parties, or where it would not add to 
 the convenience of proceeding, it will not be granted (h). 
 
 When a foreigner seeks no assistance from the Courts of 
 this country, it requires a very strong case to induce them 
 to restrain him, when domiciled in another country, from 
 proceeding to obtain payment of his debts according to the 
 law of that country (i). 
 Applica- 12. Analogous in principle to the restraining of jiroceed- 
 
 (r) Beauchamp v. Huntley, Jac. {g) Carron dx. Co. v. Maclarcn, 5 
 
 546. H. L. 416. 
 
 (d) Vaiighanv. Welsh,Moss, 210. {//) Liverjwol <L-c. Co. v. Hwiter, i 
 
 (c) BaiUic V. B., 5 Eq. 175. Eq. 62 ; 3 Ch. 479 ; Jones v. G'eddcs, 
 
 if] PortarUngtonv.Soidbii, 3 My. 1 Ph. 725. 
 
 & K. 104 ; Simpson v. Fojo. 1 J. & (/) Carron SjX. Co. v. Mevclaren, 
 
 H. IS ; 1 H. & M. 105. ' sup.
 
 TO PREVENT THE ABUSE OF LEGAL PKOCESSES. 631 
 
 ings in Courts of justice are those in which application has tion for 
 been made to the Court of Chancery against a party paHitv 
 applying for a private Act of Parliament, or for an Act "^ent. 
 respecting property. It has been laid down by many 
 judges that the Court, acting in iMrsonami, has power to 
 grant such an injunction, though there is no case in which 
 it has been actually carried into effect. In Heathcote v. 
 iV. S. R. Go. (Jc) an injunction was granted by Sir L. Shad- 
 well, but was dissolved by Lord Cottenham on appeal, not 
 indeed on the general ground of want of jurisdiction, but 
 from the absence in that case of circumstances warranting 
 svich a decree. His lordship pointed out an important 
 distinction between such a case and an injunction against 
 proceedings at law, the ground of the latter being that it 
 was sought to interfere with an inequitable use of a legal 
 right, while in the former case, it was the ordinary pro- 
 vince of the legislature to abrogate existing rights and 
 create new ones. To hold, therefore, that no application 
 should be made to Parliament because its object was to 
 interfere with some right or interest, would be in effect to 
 hold that the Court should by its injunction deprive the 
 subject of the benefit of parliamentary interference. An 
 injunction, therefore, could not be granted on the ground 
 that the Act of Parliament sought for would interfere with 
 existing rights, it being the very object of it to do so. 
 
 Upon the same princij)le, in the absence of some special 
 equity, the Court will not restrain an application to the 
 legislature of a foreign country (l). 
 
 As, however, it is unlawful, and in fact a breach of trust. When 
 to apply the funds of a company in an application to Par- ^'^^ ^"""^"^ ' 
 liament for powers to extend the business of the company 
 beyond the objects for which it was constituted, the Court 
 has power, at the suit of any of the shareholders, to interfere 
 by injunction to restrain such application (772). The funds of « 
 
 (X) 2 Mac. & G. 100. {)a) SiinpHon v. Denison, 10 H;i. 
 
 (0 Bill V. ^icrva d.x. Co., 1 De G. 51 ; see also G. W. /.'. Co. v. Rusk- 
 F. & J. 177. oat, 5 De G. & Sm. '290.
 
 C32 
 
 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 Equity 
 protects 
 its own 
 officers. 
 
 Criminal 
 proceed- 
 ings not 
 restrained, 
 
 a company may, however, be employed in defence of 
 existing rights, and if it be necessary to apply to Parlia- 
 ment for their protection, such application will not be 
 restrained (-)?). 
 
 13. Courts of equity have always been careful to 
 protect their own officers in the execution of the processes 
 of the Court against any actions brought against them for 
 acts done in pursuance of their duty. If the processes 
 were irregular, they were not to be examined in other 
 Courts ; the Courts of equity would themselves apply the 
 proper remedy (o). 
 
 14. It may be laid down as a general principle, that a 
 Court of equity neither has nor had any jurisdiction to 
 restrain by injunction any criminal proceedings {'p). It 
 was but an apparent exception that when the person 
 instituting such proceedings was at the same time himself 
 a plaintiff in equity, the Court had power to require him 
 to elect between his suit in equity and his prosecution {q)\ 
 and this case has recently been disapproved of by high 
 authority {r). 
 
 Trust 
 
 property 
 protected. 
 
 II. Injunctions protecting Equitable Estates and In- 
 terests not recognised at Laiu. 
 
 1. Trusts supply the most extensive and important 
 class of purely equitable estates. An illustration which 
 falls with eqvial propriety under this head has been already 
 given of the protection of trust property by means of 
 injunction (s). Other instances of a similar nature may 
 be easily supplied ; for example, where a trustee seeks 
 payment to himself of a legacy bequeathed to his cestui 
 
 {n) Bright v. North, 2 Ph. 216. 
 
 (o) Mm/ V. Hook, 2 Dick. 619, 
 cited ; Walker v. Micklethivait, 1 Dr. 
 & Sm. 49. 
 
 (j>) Montayue v. Dodnian, 2 Ves. 
 sr. 396. 
 
 (q) M. of York V. Pilkiwjton, 2 
 Atk. 302. 
 
 (»•) SauU V. Broome, 10 Ch. 64 ; 
 Kerr v. Corp. of Preston, 6 Ch. D. 463. 
 
 is) xVcivlands v. Payntcr, 4 My. & 
 Cr. 408.
 
 INJUNCTIONS PROTECTING EQUITABLE ESTATES. 633 
 
 que trust (t). So where a cestui que trust proves a pro- Breach of 
 bable intention on the part of his trustee to commit a st"ained 
 breach of trust, he may procure an injunction to restrain 
 him (it) ; and it is not necessary to entitle him to this 
 relief that the threatened damage should be irreparable 
 {v). It is the right and duty of a trustee who apprehends 
 a breach of trust by his co-trustee to seek an injunction to 
 restrain him {x). 
 
 2. Thus again, the lien of a purchaser has been protected Liens 
 by an injunction restraining the vendor from parting with "^"^^ ^^ ^ 
 the legal estate {y). Constructive trusts arising from Construc- 
 frauds have also been assisted by restraining the indorse- ^'^^ trusts. 
 ment or negotiation of notes fraudulently obtained {z). 
 
 3, We have seen elsewhere (p. 394) that the unauthorised improper 
 mamage or removal of wards of Court will be prohibited ^vjtij^vards 
 by injunction ; a guardian may even be restrained from of Court, 
 giving his consent to such a marriage without the leave of 
 
 the Court((/.) ; and by an analogous jurisdiction, fathers have 
 for special reasons been restrained from taking their 
 children abroad, or interfering with their education (6). 
 
 (t) IliU V. Turner, 1 Atk. 516. {y) EcliUff v. Baldivin, 16 Ves. 
 
 (m) Balh V. Strutt, 1 Ha. 146. 267. 
 
 {v) Anon., 6 Mad. 10 ; Dance v. {z) Smith v. Ayhivell, 3 Atk. 566. 
 
 Goldingham, 8 Ch. 902. {a) Beard v. Travers, 1 Ves. 313. 
 
 {x) Jie Chcrtseij Market, 6 Pri. {h)Exp.Warner,ABvo.C.C.U\l; 
 
 279. De Manneville v. De M., 10 Ves. 52.
 
 634 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Section II. — Injunctions Restraining Wrongs at 
 ONCE Legal and Equitarle. 
 
 GENERAL PRINCIPLES. 
 
 I. Injunctions protectlmj Riyhts in Land. 
 
 1. Waste. 
 
 (1.) Doctrines and remedies of law as 
 
 to tuaste. 
 (2.) Doctrines and remedies of equity 
 as to waste. 
 Garth v. Cotton. 
 
 2. Trespass. 
 
 3. Nuisances. 
 
 II. Injunctions protecting Patent Rights, &c. 
 
 1. Patents. 
 
 Hill V. Thompson, 
 
 2. Copyright. 
 
 3. Trade marks. 
 
 Principles The protection of legal rights to property from irre- 
 jurisdic- parable, or at least from serious damage, pending the trial 
 tion. y£ ^|jy legal right, is part of the original and proper office 
 
 of a Court of equity (c). It has sometimes been quoted 
 as a maxim that equity will not suffer a wrong without a 
 remedy. A full discussion, therefore, of the cases in which 
 the protection of an injunction might be afforded would 
 require an exposition of legal rights generally, which can- 
 not, of course, be here attempted. It must suffice, first, to 
 indicate the general principles by which the exercise of the 
 jurisdiction is directed, and secondly, to pass in review, by 
 way of illustration, some of the most frequently occurring 
 and important cases in which this particular remedy is 
 applied. 
 
 (-■) Ken- Inj. l:J ; HUtnn v. OmncUU, Cr. & Ph. 283, 292.
 
 GENERAL PRINCIPLES. 63o 
 
 (1.) A plaintifF seeking in equity an injunction for the riaintifT 
 protection of a legal right, must first show a fair primd ,,rim/t facie 
 facie case in support of the title which he asserts (d). "g^t, 
 It is not necessary for him to show a clear legal title, but 
 he must satisfy the Court that he has a fair question to 
 raise as to the existence of the legal right which he sets 
 up (e). 
 
 (2.) He must also show that there are substantial and that 
 grounds for doubting the existence of the right asserted g^jj^-^ ,.i„lji; 
 by the defendant whom he seeks to restrain (f) ; or, if his '■'* ^loubt- 
 
 1 1 • 1 • 1- 11 , 1 , ful, or his 
 
 legal right is not disputed, he must show that the act com- act is in- 
 plained of is in fact a violation of his right (g), and that 3'^"*^^^' 
 there is a real probability or danger of his right being in- 
 vaded. On the one hand, the mere apprehension of injury 
 is not sufficient (h) ; on the other, the mere denial by the 
 defendant of his intention to infringe the plaintiff's right 
 will not necessarily prevent the Court from interfering (i). 
 It suffices if the Court is satisfied that an infringement is 
 threatened or is imminent (k). 
 
 (3.) Thirdl}^, the plaintiff must show that the mischief and that 
 which he seeks to restrain will be such as to be incapable remedy is 
 of reparation by any legal remedy. It must be such as i^suffi- 
 that a mere payment of damages will not suffice to put the 
 parties in their original position (/). This may be the case 
 either because the act threatened would destroy the subject- 
 matter of dispute (m), or because the nature of the act 
 renders it impossible to accurately ascertain the damage (n). 
 
 On these general conditions rests the jurisdiction to 
 grant an injunction for the protection of a legal right. 
 The detailed considerations which affect it will best be seen 
 
 {d) Ibid.; Saunders v. Smith, 3 (/() Hanson v. Gardiner, 7 Ves. 
 
 My. & Cr. 714, 728. 307. 
 
 (e) Shrewsbiiri/ cfc Chester R. Co. v. (i) JacJcson v. Cator, 5 Ves. 688. 
 
 Shrewsbury d: Birminr/ham E. Co., 1 {k) Gibson v. Smith, 2 Atk. 182. 
 
 Sim. N. S. 410, 426. (l) Wood v. Stitdife, 2 Sim. N. S. 
 
 (/•) Sparrow v. 0. W. <£• W. R. Co., 165. 
 
 9 Ha. 436, 441. {m) Hilton v. Granville, Cr. & Ph. 
 
 (d) Ripon V. Hobort, 3 My. & K. 283, 292. 
 
 IQ^n^o; Haines X.Taylor, iOBe-AV. (n) Att-Gen. \. Aspinall, 'I My. L 
 
 471; 2 Ph. 209. Cr. 613.
 
 C36 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 under the headings which particularly illustrate its applica- 
 tion. These fall under one or other of two classes, of 
 which the first comprises common law rights respecting the 
 enjoyment of land or houses ; the second, the somewhat 
 peculiar class of rights which arise from patents, copyright, 
 and the use of trade marks. 
 
 I. Injunctions protecting Rights in Land. 
 
 1. Injunctions against waste. 
 
 Some of the most important cases in which equity 
 assists the law by applying its special processes for the 
 protection of legal rights are supplied by questions respect- 
 ing waste. There are indeed cases of waste in which the 
 wrong redressed is simply equitable, and which would, 
 therefore, more strictly fall under the preceding heading. 
 But it will be more convenient to treat together the various 
 matters concerning waste which call for comment ; and in 
 doing so, the distinctions between legal and equitable waste 
 will be plainly indicated. The principles of equity re- 
 specting waste will most clearly appear if we first review 
 those of law on the same subject. 
 
 (1.) The doctrines and remedies of laiu as to waste. 
 
 Definition. Waste at • law has been defined as " any spoil or 
 
 destruction done, or allowed to be done, to houses, woods, 
 
 lands, or other corporeal hereditaments by the tenant 
 
 thereof, during the continuance of his particular estate" (o). 
 
 (a.) Against wlioni chargeable. 
 Tenant for Waste, as distinguished from trespass, could only be 
 committed by a limited owner, that is, a tenant for life, or 
 for years, in dower or in curtsey, and it could only be 
 charged against him by one between whom and himself 
 tliere was privity of estate. 
 Rector or A rector or vicar is in the same position as an ordinary 
 
 life, 
 
 vicar. 
 
 {") .3 Hteph. Comm. 105, 7th eJ.
 
 WASTE AT LAW. 6 P. 7 
 
 tenant for life, and has no right to fell timber except for 
 necessary repairs to the premises {p). 
 
 A tenant in tail after possibility of issue extinct, although Tenant m 
 
 . . . r tail not 
 
 practically a tenant for life, was not within the legal rcstric- liable, 
 tions as to waste ; he was regarded as having an inherit- 
 ance {q); but a person to whom he conveyed his estate 
 was treated as only tenant for life (r). 
 
 These legal restrictions from waste have no application Legal 
 when the instrument giving rise to the life or limited allowed, 
 tenancy contains with respect thereto the common clause 
 " without impeachment of waste," or its equivalent. Then, 
 he may fell timber, or open quarries or mines, and will be 
 entitled to the full produce (s). In the presence of these 
 words, the Courts of law possessed no restraining power, 
 and had no further jurisdiction. 
 
 (b.) What acts amount to waste at laiv. 
 
 i. Timber trees (oak, ash, and elm) being part of the Felling 
 inheritance, it is waste to fell or lop them, or do any act ^^ 
 whereby they might decay. A tenant is allowed to cut 
 • down trees under twenty years old for the purpose of 
 allowing the proper development and growth of other 
 timber in the same wood and plantation ; that is improve- 
 ment rather than waste (t). The tenant for life of a timber 
 estate, i.e., an estate cultivated merely for the produce of 
 saleable timber, and where timber is cut periodically, may 
 fell it in the ordinary course. To do so is a mode of culti- 
 vation, and timber felled in proper course constitutes the 
 annual fruit of such land, such as the settlor of the land 
 would expect the successive tenants to receive. He may 
 also cut underwood and willows in due course (w), and all 
 trees other than timber trees (x). 
 
 ii. Such a tenant would, moreover, commit waste by Opening 
 
 {p) D. of Marlhoroughv. St. John, (t) Honyicood v. H., 18 Eq. 310 ; 
 
 5De G. & Sm. 174. Lowndes v. Norton, 6 Ch. D. 139. 
 
 (q) Williams \. Jr., 15 Ves. 419. (u) I/a7nptony.IIod;/cs, 8VGfi.105; 
 
 (r) George Ap-Rirc's Case, 3 Leon. Phillip.^ v. Smith, 14 M. & W. 589. 
 241. (.<;) Ilonyivood v. H., sup. 
 
 (s) Lewis Bowies' Case, 1 1 Eep. 83.
 
 038 
 
 INJUNCTIONS RESTRAINING LK(iAL WRONGS. 
 
 Writ of 
 waste. 
 
 Inade- 
 quacy of 
 the 
 remedy. 
 
 new pits or Jigging pits for gravel, lime, clay, stone, &c. (except for 
 repairs), or by opening new mines for metal, coal, &c. (y); 
 but he may continue working pits and mines previously 
 opened, and in order to do so may make new pits or 
 shafts (^). 
 
 (c.) Remedies at laiu. 
 
 The remedies for waste at law were by writ of waste 
 (abolished by 8 & 4 Will. 4, c, 27, s. 3G), by an action for 
 damages, by trover for trees, &c., which became the pro- 
 perty of the next owner of the inheritance as soon as they 
 were felled, or by action for money had and received for 
 the produce of their sale (a). 
 
 The incompleteness or inadequacy of these remedies is 
 very apparent. They only contemplate the recovery of 
 damages after the- waste has been committed, and pre- 
 vious to 17 & 18 Vict. c. 125, Courts of law had no power 
 to prevent by injunction the commission of the waste. 
 Again, Courts of law had no efficient machinery for the 
 taking of accounts, which were often long and com- 
 plicated. Further, they supplied no remedy at all for 
 many cases of legal waste, as will be more fully seen when 
 considering the nature of the equitable jurisdiction. And 
 lastly, they took no cognisance whatever of what is termed 
 equitable waste. 
 
 Of course the contrast thus suggested between law and 
 equity is now a matter of history. By the Judicature Act, 
 1873 (h), it is enacted that, " An estate for life without 
 impeachment of waste shall not confer or be deemed to 
 have conferred upon the tenant for life any legal right to 
 commit waste of the description known as equitable waste, 
 unless an intention to confer such right shall expressly 
 appear by the instrument creating such estate." Though 
 tenants for years and tenants in tail after possibility of 
 
 (//) Co. Litt. 53 b. ; Viner v. 
 Vau'/han, 2 Beav. 466, 
 
 (z) Clarcrim/v.C, 2r.Wms. 388; 
 Elias V. Gr!jfi(/i, 8 Ch. D, 521, 
 
 (a) Seagram v. Kniqht, 2 Ch. 632. 
 (h) 36 & 37 Vict.'c. 66, s. 25, 
 .^ub-s, 3,
 
 EQUITABLE WASTR. GoU 
 
 issue extinct are not here mentioned, they are brought 
 within the same rule by sub-s. 11, Avhich enacts that in 
 case of a conflict between law and equity the rules of 
 equity shall prevail. 
 
 (2.) Tlie doctrines and remedies of equity as to ivaste. 
 
 The contrast between the doctrines of equity and those Contrast of 
 of law with respect to waste is twofold. In the first place, equity. 
 it consists in the more extended meaning which equity 
 ascribes to the word, reckoning, as it does, many acts as 
 waste which the law did not consider chargeable. Secondly, 
 ec[uity affords a remedy to many persons to whom law 
 would not have allowed a locus standi. Its jurisdiction, 
 therefore, in cases of waste depends partly upon the nature 
 of the act complained of, partly upon the position of tlie 
 parties. 
 
 (a.) As to the nature of the act charged. 
 
 The consideration of the jurisdiction which particularly 
 depends on the nature of the waste complained of requires 
 a definition of equitable waste. 
 
 Though equity follows the law in allowino- weifj-ht to the Equitable 
 
 . . „ . . waste 
 
 words" without impeachment of waste," or their equivalent, defined. 
 when used respecting a limited tenancy, it does so only to a 
 certain degree. AVheii they arc used it will not restrain from 
 the committing of ordinary waste, such as cutting timber 
 trees and opening mines ; but it will not allow this power 
 to be exercised contrary to conscience and in an unreason- 
 able manner, so as to amount in fact to a destruction of 
 the estate settled (c). 
 
 The following acts of waste, with which in tenancies Instances 
 " without impeachment of waste " the law would not able waste. 
 have interfered, have been deemed unconscionable and 
 unreasonable in equity, and constitute, therefore, equitable 
 waste : — 
 
 i. The destruction or dismantling of the mansion Destroying 
 house (d), and the wanton pulling down of farmhouses house." 
 
 (c) Vane v. Bfirnord, 2 Vern. (d) Lord Barnard's Case, 2 Veni. 
 
 J. 78.
 
 040 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Stripping 
 estate of 
 timber. 
 
 Felling or- 
 namental 
 timber. 
 
 When or- 
 namental 
 timber 
 may be 
 felled. 
 
 on the property {c). If, however, such destruction has 
 been simply for the purpose of erecting houses of a better 
 kind or in more favourable situations, the tenant incurs no 
 liability to account (/). 
 
 ii. Though equity allows the ordinary and reasonable 
 cutting of timber, it will interfere if a tenant threatens to 
 strip the estate thereof, or to grub up a wood settled, or 
 make any such extravagant misuse of the power (g). 
 
 iii. Similarly, it will not allow the felling of timber 
 planted or left standing for the shelter or ornament of a 
 mansion house or grounds (h), even if planted by the 
 tenant himself (i). In applying this restriction equity will 
 not criticise the designs of the settlor : his taste as well as 
 his will binds his successors (k). The principle extends 
 also to ornaments of outhouses and grounds, plantations, 
 vistas, avenues, and to all the rides for ten miles round (/) ; 
 but not necessarily so as to prevent the cuttiog for repairs 
 of woods through which such rides pass (m). 
 
 Circumstances, however, may justify the felling of orna- 
 mental timber; for instance, if a storm, by blowing down 
 some trees, renders the removal of others desirable to 
 restore symmetry (n) ; or if some trees are impeding the 
 growth of others of greater importance (o), or are from 
 their proximity to the house prejudicial or dangerous 
 thereto (^j). In these cases, however, the burden of proof 
 is on the parties alleging the necessity (q). 
 
 The protection of ornamental timber being ascribable to 
 its connexion with the mansion-house or grounds, a ques- 
 tion has arisen as to whether such protection should 
 
 (e) Aston v. A., 1 Ves. sr. 265. 
 
 (/) Morris v, M., 3 De G. & J. 
 323. 
 
 {fj) Talbot V. Hopc-firott, 4 K & 
 J. 96 ; Abrahal v. JJubb, 2 Freem. 
 54. 
 
 (A) Rolt V. Somerville, 2 Eq. Ca. 
 Ab. 759. 
 
 ((•) Coffin V. C, Jac. 71. 
 
 (k) M. of Dowmhire v. Sandys, 
 
 6 Ves. no. 
 
 (0 Ibid. 
 
 (»i) Ibid. 
 
 (w) Mahon v. StanJiope, 3 Madd. 
 523, n. 
 
 (o) Lushinr/ton v. Boldcro,6 Madd. 
 149. 
 
 (p) Campbell v. AUgood, 17 Beav. 
 623. 
 
 {q) Ibid.
 
 WASTE. 041 
 
 be continued after the mansion house has been pulled 
 down. The distinction has been drawn that if the house has 
 been pulled down by the owner in fee without any inten- 
 tion of rebuilding it, the timber which was formerly orna- 
 mental ceases to be so, and may be cut down (r) ; but if it 
 is proved or may be inferred that the intention was to 
 rebuild the house, or that any devisee under his will 
 should do so, the trees should still be protected (s). But in 
 an important case, destruction of such timber was restrained 
 notwithstanding the unqualified destruction of the mansion 
 house (t). 
 
 iv. The Court will prevent the cutting of saplings not Cutting 
 proper to be felled (u), and of underwood before it is of ■^'^^^^"^^* 
 sufficient growth (x), but not the felling of timber merely 
 because it is not full grown or proper for building (y). 
 
 V. Analogous to the wanton destruction of timber is the Tmprovi- 
 improvident or destructive working of mines, from which ^inino- 
 a tenant for life may be restrained, though not impeach- 
 able for waste. 
 
 vi. It is now settled that the Court will not usually Permissive 
 interfere to prevent or remedy permissive waste, that is to ^^ ^' 
 say, waste occasioned not by act, but by omission, as by 
 suffering houses to fall into decay for want of repairs (z) ; 
 but an account would be directed where there was an 
 express covenant to repair (a). There seems, however, to 
 have been a legal liability for such waste (6). 
 
 (b.) By and against tvhor)i waste Tiiay be charged. 
 
 The next inquiry is as to those cases in which the juris- 
 diction of equity arises from the position of the parties 
 concerned being such as to leave no remedy at law. 
 
 i. A tenant in tail after possibility of issue extinct, although Tenant iii 
 
 (r) Micklahwait v. M., 1 De G. & 279. 
 
 J. 504. {y} Aston v. ^., 1 Ves. sr. 264. 
 
 (s) Ibid., 519. (z) Poinys v. BUif/rare, Kay, 495 • 
 
 (<) WeUesley v. W., 6 Sim. 497 ; 4 De G. M. & G. 448. 
 
 see also 3f orris v. M., 15 Sim. 505 ; (a) Marsh v. Wells, 2 S. & S. 87. 
 
 11 Jur. 196. ' (6) Greene V. Cole, 2 Wms. Saund. 
 
 (7f) O'Brien \. O'B., Amh. 107. 252 and notes; Woodhoztsev. Walker, 
 
 (x) Brydijes v. Stevens, 6 Madd. 5 Q. B, D. 404. 
 
 T T
 
 642 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 tail after unimpeachable of waste at law, is within the principle of 
 
 orissue^ ^ equitable waste, and will be restrained in equity from com- 
 
 extinct. mitting malicious and extravagant waste, such as pulling 
 
 Tenant in down houses, and the other acts above mentioned (c). But 
 
 countebiT" equity will not, any more than law, interfere with an ordi- 
 
 generally. nary tenant in tail, who may at his unrestrained pleasure 
 
 commit any degree of waste, and this notwithstanding that 
 
 he is restrained by statute from barring his issue or those 
 
 in remainder, with reversion to the Crown (d). 
 
 Mortgagee ii. A mortgagee in fee in possession may at present be re- 
 
 sion""*''^^' strained from committing waste, as by cutting timber, unless 
 
 the security be insufficient ; and if so, the money arising 
 
 by sale of the timber or otherwise from the waste must be 
 
 applied to sink the principal and interest of the debt (e). 
 
 But as regards mortgages executed after Dec. 31st, 1881, 
 it has now been enacted that a mortgagee in possession 
 shall have power to cut and sell timber and other trees ripe 
 for cutting, and not planted or left standing for shelter or 
 ornament, or to contract for any such cutting and sale, 
 unless a contrary intention is expressed in the mortgage 
 deed(/). 
 Mort- On the other hand, a mortgagor in possession will be 
 
 gagor. restrained from waste at the suit of the mortgagee, on his 
 showing that the security would be thereby rendered in- 
 sufficient or scanty (g). 
 Tenant for iii. The most important of the cases under this heading 
 mainder ^^'^ tliosc wliich are illustrated by the leading authority of 
 
 for life. 
 
 GARTH V. COTTON 
 
 [1 Ves. sr. 524, 546; 1 Dick. 183; 1 W. & T. L. C. 751]. 
 
 In its simplest form it is as follows : An estate is limited 
 to a tenant for life, remainder to another for life, with 
 remainder over in fee or in tail. Here the remainderman 
 for life could not sue for waste at law, because he has not 
 
 (c) Att.-Gen. v. D. of Marlborourjh, (/) 44 & 45 Vict. c. 41, s. 19. 
 
 3 Madd. f>2>%. (g) Humphreys v. Harrison, 1 J. 
 
 (d) Ibid., 498, .^36, 539. & W. 581 ; King v. S7nit/), 2 Ha. 
 
 (e) Farmnt v. Lovel, 3 Atk. 723. 239.
 
 WASTE. 043 
 
 the inheritance ; and the remainderman in fee or tail conld 
 not sue, because the plaintiff' at law must recover the place 
 wasted, and that would be an injustice t-o the remainder 
 for life which is not forfeited. Under such circumstances 
 equity has a very aucient jurisdiction to grant an in- 
 junction (i), either at the suit of the owner of the in- 
 heritance, or of the mesne remainderman for life (k). 
 
 The case of Garth v. Cotton (I) is complicated by Garth v. 
 other circumstances. The first tenant for life was there 
 not impeachable for waste except voluntary waste, there 
 was a remainder to trustees during his life to preserve 
 contingent remainders, remainder to his first and other 
 sons in tail, remainder to B. in fee. Moreover the waste 
 was committed before a son was born to the first tenant, 
 when the only parties in existence who were beneficially 
 interested were the person who committed the waste 
 and the remainderman in fee who consented thereto. 
 In these circumstances equity granted relief to the mesne 
 tenant in tail long after the waste had been committed. 
 The strongest foundation for the decision was the collu- 
 sion between the parties to the waste ; but notwithstand- 
 ing this circumstance, always so unfavourably regarded in 
 equity, the plaintiff could not have succeeded had it not 
 been for the intermediate estate limited to trustees to 
 preserve contingent remainders. Their duty it was to 
 have interfered to stay the waste at the time, so as to 
 preserve the whole inheritance, and it was expressly de- 
 cided that their neglect or ignorance of their duty could 
 not be allowed to prejudice the tenant in tail, though not 
 in esse when the waste was completed. 
 
 So also where there was a limitation to A. for life, re- 
 mainder to trustees to preserve, &c., remainder to his first 
 and other sons in tail, remainder to B. for life, remainder 
 to his first and other sons in tail, with reversion in fee to 
 
 (?■) Tracy v. T., 1 Vern. 23. Ca, Ab. 400. 
 
 (k) Dayrell v. Champneyn, 1 Eq, {I) Hup. 
 
 TT 2
 
 044 INJUNCTIONS RESTRAINING LEGAL WRONGS, 
 
 A., an injunction against waste by A. was granted on the 
 prayer of B. (m). 
 Trustees to Although by virtue of 8 & 9 Vict. c. 106, s. 8, and 40 & 
 contingent ^1 Vict. c. 33, the insertion of a limitation to trustees to 
 remain- preserve contingent remainders is no longer necessary for 
 the purpose for which it was originally designed, Garth v. 
 Cotton, and other similar cases, indicate that it may still 
 serve a useful effect ; because, though by virtue of these 
 statutes such trustees will not be required where the inter- 
 mediate tenant who may be damnified by collusive destruc- 
 tion is m esse, and able to seek his own remedy, neverthe- 
 less such trustees may, if appointed, pray for the restrain- 
 ing of waste before the intermediate tenant comes into 
 esse, when in their absence there would be no one capable 
 of taking action for the purpose. Wliere there is a mesne 
 tenant in esse, it woidd not seem to matter, since 40 & 41 
 Vict. c. 83, whether the preceding estate is for life or for 
 years. In either case, on the principle of Garth v. Cotton, 
 the remedy would avail for the mesne tenant, even in the 
 absence of trustees. 
 Devisee in As to executory devises, after some doubts (n) it seems 
 executory ^^ ^^ Settled that a devisee in fee, with an executory 
 devise dcvise over on his death without leaving issue, may be 
 restrained from equitable, but not from legal waste (o), 
 though a testator could make such a tenant impeachable 
 for legal waste by express words (p). 
 Waste by Where a plaintiff in possession sought an injunction to 
 under^ restrain waste by a person claiming under an adverse title, 
 adverse the tendency of the Court was to grant the relief prayed, 
 at least when the acts complained of did or might tend to 
 the destruction of the estate (q); and now, by Judicature 
 Act, 1873, s. 25, sub-s. 8, such an injunction is expressly 
 placed within the discretion of the Court. 
 
 (m) Perrot v. P., 3 Atk. 94. (p) Blake v. Peters, 1 De G. J. & 
 
 {«) Robinson v. Litton, 3 Atk. 309 ; S. 345. 
 
 Stansfieldv. Ilabtr'jham, 10 Ves. 278. (q) Loumdes v. Settle, 10 Jur. N. S. 
 
 (o,' Turner v. IVrirfht, 1 Johns. 226 ; 12 W. R. 399. 
 740 ; 2 De G. F. & J. 234.
 
 WASTE. (Ji.J 
 
 Thoiioli tenants in common will not in general be re- Waste by 
 
 tenants ii 
 common. 
 
 strained from committing either ordinary or equitable 
 
 waste, equity will interfere between them to prevent 
 malicious or destructive waste — as, for instance, cutting 
 saplings and timber trees or underwood at unseasonable 
 times (r). And under special circumstances ordinary 
 waste has been restrained — for instance, where the parties 
 interested were only equitable tenants in common, and 
 the one who was committing the waste not only was not 
 entitled to the possession, but was also insolvent, and un- 
 able to pay to his co-tenants their shares of the produce of 
 the waste (s). After a decree has been made in a partition 
 suit between such tenants, the Court has jurisdiction to 
 restrain waste (t). 
 
 A ground landlord may have an injunction to stay waste Under- 
 against an under-lessee, where the original lessee, by 
 collusion or neglect, does not seek to restrain it (u). 
 
 (c.) Equitable remedies. 
 
 (1.) The jurisdiction of equity in matters of waste is not Superio- 
 less due to the superior remedial processes which it com- equitable 
 mands, than to the broader principles which it applies. At I'emedies. 
 common law, previous to the addition to its power effected 
 by 17 & 18 Vict. c. 125, there existed no power to interfere 
 with the commission of waste generally. The injured party 
 could at most recover damages to indemnify himself after 
 the wrong had been done. On the contrary, equity could 
 always be appealed to where a single act of waste could be 
 established, to interfere by injunction to restrain the 
 offending party from any further acts of like nature ; and 
 this whether the waste complained of were legal or equit- 
 able {x). Again, while common law was hampered in its 
 estimation of damages by the want of the machinery 
 requisite for examining lengthy matters of account, which 
 
 (?•) Hole V. Thomas, 7 Ves. 589 ; (t) Wriyld v. Atlcyns, 1 V. & B. 
 
 Ciey<j V. a, 3 Giflf. 322, 336. 313. 
 
 (s) Smallman v. Onions, 3 Bro. C. (») Fan-ant v. Lovel, 3 Atk. 723. 
 
 C. 621. (x) Coffin V. C, 6 Madd. 17.
 
 646 INJUNXTIONS RESTRAINING LEGAL WRONGS, 
 
 are the usual concomitants of such suits as those arising 
 from wrongful waste, equity could readily undertake such 
 inquiries, and conduct them to a certain issue. 
 Account, (2.) A question has arisen respecting the relation of 
 
 whether , ^ '' ^^. ^ , , • i • -n x x i i, 
 
 incident these remedies one to another, which is illustrated by 
 ?^^ *° Garth V. Cotton (y). There it was objected that, although 
 
 injunction. ^^' '' • • ii 
 
 it was admitted that a bill might have been maintained by 
 the trustees to preserve contingent remainders, to stay 
 waste before it was committed, yet it did not follow that 
 after that was over a bill would lie for an account : and it 
 was argued that the jurisdiction to decree an account was 
 only incident to the jurisdiction to grant an injunction. 
 The point of the objection is that after the waste has been 
 committed the dispute between the parties is only one of 
 pecuniary loss, the complete and proper remedy for which 
 is l)y action at law. This reasoning was successful in 
 Jesus College v. Bloom (2), and Smith v. Cooke (a), where 
 the jurisdiction to decree an account was considered to 
 arise as an incident of the power to restrain by injunction, 
 and to have no existence where, there being no possibility 
 of a repetition of the offence, an injunction could not be 
 required. But in Garth v. Cotton the objection did not 
 prevail ; the obvious distinction between that and the other 
 named cases being that here there never was a legal remedy 
 which might have been appealed to, and unless an account 
 had been granted, a wrong would have been done the 
 plaintiff, and he would have been nevertheless left without 
 remedy. This distinction was pointed out and the whole 
 question fully discussed in Parrot v. Palmer (Ij), where 
 the conclusion was reached, which, with the exceptions to 
 be presently referred to, may be accepted as expressing the 
 true principle, viz., tliat where there was a remedy at law 
 for waste, an account would not be decreed except 
 as incident to an injunction ; but that where there was 
 only a remedy in equity, as would always be the case 
 
 (V) '"^up., p. 642, (a) 3 MV. 381. 
 
 (:) 3 Atk. •2(52 ; Amb, 54. (b) 3 My. & K. 632.
 
 WASTE. 647 
 
 where equitable waste was charged, an account would be 
 granted, although there was no injunction. In the case, 
 however, of mining waste, an account will always be decreed, 
 although no injunction is asked (c). And it should be 
 remarked that the distinction thus laid down was not 
 recognised by Lord Thurlow in Lee v. Alston (d), where 
 an account was decreed notwithstanding the existence of 
 a legal remedy and that no injunction was prayed. 
 
 (3.) The next question is as to whom timber and other To whom 
 materials subject to waste, when severed, belongs. The of "timber 
 answer to this depends on the mode of severance. This belong. 
 may either be by the act of God, or by the act of the 
 defendant or a third party, or by order of the Court. Each 
 case requires separate examination, 
 
 (i.) As a general rule, where by the act of God, as by a Severed by 
 tempest, things are severed from the inheritance while a ^'' " 
 tenant for life impeachable for waste is in possession, 
 whether materials of a house, timber, or the produce of 
 mines, they will become at once the property of the o^vner 
 of the first estate of inheritance in esse (e), even although 
 there may be an intervening estate of freehold in a tenant 
 for life without impeachment of waste (/), 
 
 A tenant for life, however, is entitled to have the benefit When 
 arising from the sale of all such things severed by the act f^r^lfe 
 of God, as he was entitled himself to sewer (g). If, there- entitled. 
 fore, the tenant for life is not impeachable for waste, things 
 severed winch would amount in the other circumstance 
 to legal waste, belong to him ; but things, such as orna- 
 mental timber, which equity would restrain even him from 
 severing, will belong to the fii^t owner of the inheritance 
 in esse (k). 
 
 (ii.) If things are severed from the inheritance by a When 
 
 (c) B. of Winchester v. Knight, 1 Gi'tiiv. Hai'ristm, .Johns. .^17, 524. 
 P. Wms. 406. {(j) Butemmi v. Hotehlin, 31 Beav. 
 
 (d) 1 Bro. C. C. 194 ; 3 ibid. 37 ; 486. 
 
 1 Ves. 78. [h) M. of Ormond v. Kynnersley, 
 
 (e) Uvedall v. U., 2 Roll. Ab. 7 L. J. O. S. Ch. 1.50; 8 ibid. 67 ; 
 119. Wellesley v. W.. 6 Sim. 497. 
 
 (/) Piyot V. Bullock; 1 Ves. 484 ;
 
 G48 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 severed by trespasser, or by the waste of tenants, or by the life tenant 
 ortenaiita. impeachable for waste (without collusion with the owner of 
 the inheritance), the rule is generally the same as if it were 
 severed by the act of God (?'). There are, indeed, cases of 
 non-collusive severance by the life tenant in which it has 
 been said that the proceeds of sale ought to be laid out in 
 the purchase of stock, and the interest of the fund paid to 
 the successive tenants for life (k). 
 
 Following also the analogy of acts done by a tenant for 
 life impeachable for waste, which though felling within the 
 general definition of legal waste are under the circum- 
 stances considered permissible, where a tenant not impeach- 
 able for waste commits acts which generally would amount 
 to equitable waste, but does so under circumstances under 
 which the Court would have ordered them, he is entitled to 
 the proceeds (l). 
 
 Where, however, such things have been severed by the 
 tenant for years or for life impeachable for waste in collu- 
 sion with the first owner of the inheritance, equity will not 
 allow the owner of the inheritance to benefit thereby, but 
 will order the fund thereby produced to be invested 
 so as to follow the uses of the settlement of the 
 land, or, if a prior owner of the inheritance comes subse- 
 quently into existence, will order it to be paid to him (m). 
 Moreover, if the life tenant has in himself the next exis- 
 tent state of inheritance, subject to intermediate contingent 
 remainders, he will not be allowed to take advantage of his 
 own wrong in committing waste ; but the benefit thereof 
 will be preserved for the contingent remainder-men by 
 investment to follow the uses of the settlement (n). Cir- 
 cumstances, however, which seem to justify the acts of the 
 
 (t) Ureilall v. U., 2 Roll. Ab. 179. 
 
 119 ; Iloiii/irood v. II., 18 Eq. 311. (m) Garth v. Cottoji, sup., p. 642. 
 
 (k) Lushiiujton v. BoMero, 15 (n) Williams v. Bolton, ST. Wms. 
 
 Beav. 1,7; Bateman v. Ilotchlcin, 268, cited ; Powlett v. Bolton, 3 Ve.s. 
 
 31 Beav. 486 ; Barjot v. B., 32 Beav. 374 ; Smgram v, Kniijht, 2 Ch. 
 
 523. 628. 
 
 [l) Baker v. Sebright, 13 Ch. D.
 
 WASTE. 649 
 
 life tenant, for instance, the contemporaneous expenditure 
 of an equal or greater sum of money by him in improve- 
 ments, have sufliced to prevent the application of this 
 rule (o). 
 
 (iiiO Tf thinjjs are severed from the inheritance by order When 
 of the Court {e.g., timber is ordered to be felled on account order^of '^ 
 of its being in decay, or interfering with the growth of Court, 
 other timber), it will direct the interest of the proceeds 
 to be paid to the tenant for life, though impeachable for 
 waste (p), and as such timber money will be considered as 
 realty, on the death of a tenant in fee, first owner of the 
 inheritance, if he has done nothing to convert it into 
 personalty, his heir will be entitled to it (9). 
 
 The rule is the same where a trustee has felled timber or by 
 and the Court has adopted his act (r). The Court will, ™^ ®®' 
 however, never so adopt the act of a tenant for life impeach- 
 able for waste who takes upon himself to cut and sell 
 timber without authority : he does this at his peril, and 
 can take no advantage from it (s). 
 
 The produce of the sale of underwood, timber cut Periodical 
 periodically, and gravel from pits already open, will be paid '^^'*^"^- 
 to the tenant for life, though impeachable for waste, as 
 being part of the income of the estate {t). 
 
 (4.) Where a tenant for life impeachable for waste fells Stcatute of 
 timber, the act being tortious, the remainderman having tjons. 
 the inheritance might either have brought an action of 
 trover for the trees, which became his property the moment 
 they were felled, or an action for money had and received 
 for the produce of the sale ; or he might have sought an 
 injunction and account in equity. The Statute of Limita- 
 tions would, however, in the absence of disability in the 
 owner of the inheritance, begin to run from the time the 
 timber was felled ; and his remedy would be barred after 
 
 {0) Birch- Wolfe v. Wolfe, 9 Eq. (?•) Waldo v. IF., 12 Sim. 107, 
 
 683, 691. 112. 
 
 (p) Tnol-cr V. Anneslc]!, 5 Sim. (s) Sen ;/)-iim v. A'ni</ht, 2 Ch. 6S2. 
 
 235; Tolhmache v. T., 1 Ha. 456. {t) Ondaj v. Wclkslc)/, 1 Eq. 656. 
 
 (q) Field V. Brown, 27 Beav. 90.
 
 G50 INJUNCTIONS KESTKAINING LEGAL WRONGS. 
 
 the expiration of six years (u). Tf the tenant for life is 
 also owner of the inheritance, a claim by a subsequent 
 tenant fur life only arises at his death ; therefore the 
 statute only cunimences to run from that time (x). 
 
 It has been held that where equitable waste had been 
 committed by a tenant for life, time did not run against 
 the tenant in tail in remainder until he came into posses- 
 sion on the death of the life tenant ; and that from that 
 time twenty years (which will now presumably be twelve, 
 by 37 & 38 Vict, c, 57) would be given him, the claim for 
 equitable waste being treated as a claim to the land 
 itself (y). But see Morris v. M. (z). 
 
 The questions arising on this point are also much dis- 
 cussed in Seagram v. Knight (a). 
 2. Injunctions against tresspass. 
 
 In many respects analogous to the jurisdiction to restrain 
 waste is that which enables Courts of equity to grant the 
 protection of injunction in certain cases of trespass. 
 
 The principles of the jurisdiction are precisely those 
 which govern the whole class of injunctions in aid of legal 
 rights. The Court requires to be assured of the existence 
 of the legal right, that a breach of the right is imminent, 
 and that irreparable or at least serious damage is likely to 
 result {h). 
 Origin and l^he jurisdiction to grant relief in cases of mere trespass, 
 the juris- ^-S distinguished from waste (in which there is privity of 
 diction. i\i\Q between the parties), seems to have been first asserted 
 in Flamang's Case (c), where the plaintiff was in posses- 
 sion of a close, and the defendant Avas working into his 
 minerals and taking away the very substance of his estate. 
 It has since been repeatedly asserted in cases falling 
 within the above-mentioned conditions (d). 
 
 (?/) Hiyijinhotham v. Ilawlins, 7 {z) 4 Jur. N. S. 964. 
 
 Ch. 676. (n) 3 Eq. 402. 
 
 (x) Birch- Wolfe v. Wolfe, 9 Eq. {h) Supra, pp. 6.S4-5. 
 
 683. (<•) Cited 6 Ves. 147 ; 7 Ves. 308. 
 
 ((/) D. of Leeds v. Amherst, 2 Ph. (d) Mitchell v. Dors, 6 Ves. 147 ; 
 
 117. Hanson v. Gardiner, 7 ibid. 305.
 
 TRESPASS. 651 
 
 In Loivndes v. Bettle (c) the various authorities were 
 elaborately reviewed by Kindersley, V.-C. The distinction 
 was there drawn between those cases in which the defend- 
 ant and those in which the plaintiff was in possession. It 
 was said that in the former case the Court would require 
 the plaintiff to establish stronger grounds for interference 
 than in the latter, and would, indeed, refuse relief unless 
 there were fraud or collusion, or the acts complained of 
 tended to the destruction of the estate. But this distinc- Jud. Act. 
 tion has now ceased to be of importance, since it has been 
 enacted that if an injunction is asked, either before or at 
 the hearing of any cause or matter, to prevent any 
 threatened or apprehended waste or trespass, such an in- 
 junction may be granted, if the Court shall think fit, 
 whether the person against whom such injunction is 
 sought is or is not in possession under any claim of title or 
 otherwise, or (if out of possession) does or does not claim 
 the right to do the act sought to be restrained under any 
 colour of title ; and vrhether the estates claimed by both 
 or either of the parties are legal or equitable (/). This 
 section increases to some extent the power of the Court, 
 but it has been held not to alter the main principles on 
 which injunctions are granted (g). 
 
 These principles have been already generally stated, and 
 a few illustrations of their application is all that is further 
 necessary. 
 
 A mere ordinary, naked trespass will not be restrained Naked 
 by injunction (/<). Thus the Court has refused to restrain ^'^Jfre'^ 
 a person from vexatiously distraining on the tenants of the strained, 
 plaintiff (i). But an act not of itself amounting to serious 
 damage may by continuance or repetition be held to come 
 within the remedy of injunction (k). 
 
 If the alleged trespass consists in the erection of works Erection of 
 
 (e) 33 L. J. Ch. 451. (I) Best v. Brake, 1 1 Ha. 369 ; 
 
 (/) Jud. Act, 1873; 36 & 37 Aldis v. Fruser, 15 lieAv. -liO. 
 
 Vict. c. 66, s. 25, sub-s. 8. (k) L <£• N. W. R. v. L. «£• V. R., 
 
 (g) aaskm v. Bafh, 13 Ch. D. 321. 4 K^. 178 ; Allen v. Martin, 20 En. 
 
 (h) Mo'j'j V. M., 2 Dick. 670. 46.^.
 
 652 
 
 INJUNCTIONS KESTRAINING LEGAL WRONGS. 
 
 buildings, 
 when re- 
 strained. 
 
 Trespass 
 by public 
 companies, 
 
 Trespasses 
 affecting 
 public 
 interest. 
 
 or buildings on the plaintiff's land, an injunction may be 
 had as long as they are in an incomplete state (l) ; but if 
 they have been completed the plaintiff will generally be 
 left to his remedy by damages (w). This rule has, how- 
 ever, been departed from and an injunction granted 
 where the conduct of the defendant has been fraudulent, 
 vexatious, or oppressive, and where the trespass has been 
 of an exceptionally serious nature (n). 
 
 The remedy of injunction in cases of trespass is more 
 readily granted against public companies or corporations 
 having compulsory statutory powers than against private 
 persons ; and generally the plaintiff is not required to 
 show destructive or irreparable damage. An equity is 
 raised on the plaintiffs behalf by the fact of the power 
 and resources commonly enjoyed by such public bodies, 
 tlie Court being always disposed to keep them strictly 
 within the terms of the authority confeixed upon them (o). 
 In these cases the inclination to grant the special relief of 
 equity is so strong, that it will only be refused in cases 
 w^here the damage is so slight as to be almost inappreciable, 
 or where the ordinary legal remedy is evidently adequate 
 and sufficient (p). Where the dispute is between two 
 incorporated companies, the same principles apply as in 
 ordinary cases (g). 
 
 In cases of trespass, as in those respecting nuisances, if 
 the act complained of affects the public interest, the 
 proper remedy is by information at the suit of the 
 Attorney-General (r). But if, in addition to the interfer- 
 ence with a public right, special damage is done to a 
 private person, he has a right to sue (s) ; so that in 
 
 (') Farrov) v. Vansittart, 1 Ra. Ca. 
 C02. 
 
 (m) Deere v. Oust, 1 My. & C. 516. 
 
 («) Potoell V. Aikin, 4 K. & J. 
 343 ; Bowser v. Maclean, 2 De G. ¥. 
 & J. 415. 
 
 (o) Kerr, Inj., p. 120 ; Kemp v. 
 L. ,i- B. R. Co., 1 Ka. Ca. 495. 
 
 (p) Turner v. Blamire, 1 Drew, 
 
 409 ; Rive)' Bun d:c. Co. v. N. M. R. 
 Co., 1 Ra. Ca. 121. 
 
 (q) M. S. ct- L. R. Co. V. G. N. R. 
 Co., 9 Ha. 284. 
 
 (r) Att.-G. V. Clearer, 18 Ves. 217; 
 Ait.-G. V. Foi-bes, 2 My. & C. 133. 
 
 (.s) Scmj^le V. L. cL- B. R. Co., 9 
 Sim. 209.
 
 TRESPASS. Co3 
 
 such a case there may be both an information and an 
 action (t). 
 
 A plaintiff seeking the interference of the Coui't to Plaintiff 
 restrain a trespass must be prompt in making his appHca- pnmint. 
 tion. Relief will be refused if he has stood by and allowed 
 another to spend money on his property upon the faith 
 that no objection will be made (u). 
 
 In cases of trespass, as in others, the remedy of Account, 
 account is often incident to that of injunction. This is 
 especially the case in mining suits. The rule in these is 
 that if the plaintiff knew, or with reasonable diligence 
 might have known, of the wrongful taking, the account 
 will be limited to six years (x). But in the absence of 
 such knowledge or negligence, or if the defendant has 
 acted wittingly, and a fortiori if he has been guilty of 
 concealment or fraud, the account is not so limited (y) ; 
 and the trespasser may be charged the full value of the 
 minerals taken, without allowance for the expense of 
 severing them (z). Moreover, an inquiry is often directed Inquiry 
 with a view to allowing the plaintiff compensation for any ^a^aees 
 damage which may have been done (a). 
 
 S. Injunctions against nuisances. 
 
 A nuisance, as distinguished from a trespass, is an act Nuisance 
 which causes substantial injury to the corporeal or incor- '^ "'^ ' 
 poreal hereditaments of other persons unaccompanied by 
 any invasion of the property itself (6). 
 
 In considering the now well-established jurisdiction of Public and 
 equity to restrain nuisances, it is m the first place most n"i^antes 
 material to distinguish between private and public distin- 
 
 . . . . ^ • T rr gllishcd. 
 
 nuisances. A private nuisance is one which aiiects the 
 comfort or enjoyment of only one individual, or, at most, 
 
 {t) Att.-G. V. Sheffield Gas Co., 3 (y) Ecd. Commis. v. N. E. R. Co., 
 
 De G. M. & G. 304 ; Att.-G. v. U. K. 4 Ch. D. 845. 
 
 Telegraph Co., 30 Beav. 287. (2) Philipps v. Homfray, 6 Oh. 
 
 (u) Gordon v. Cheltenham R. Co., 770 ; Llynvi Co. v. Broyden, 11 Eq. 
 
 5 Beav. 229 ; Marker- v. M., 9 Ha. 1 6. 1 88. 
 
 (x) Dean v. Thioaite, 21 Beav. (a) Hunt v. Peake, Johns. 705 ; 
 
 623 ; Dawes v. Bagnall, 23 W. R. Jegnn v. Vivian, 6 Ch. 742. 
 
 690. (b) Kerr, Inj., 1G5.
 
 654 
 
 INJUNCTIONS RESTHAIXIN(i LEGAL WRONGS. 
 
 a limited class of individuals. A public nuisance is one 
 which siniilaily affects all persons who come within the 
 sphere of its operation. The importance of the distinction 
 lies in the fact that in the case of a private nuisance the 
 injured person has a personal right to a civil action for its 
 redress, though it is not in every case that he will be 
 entitled to the special remedy of injunction : the circum- 
 stances which warrant this will be presently considered. 
 The proper remedy for a public nuisance, on the other 
 hand, is an information at the suit of the Attorney- 
 General (c). 
 Nuisance If, however, the act complained of is of such a nature as 
 and ^" ^^ ^t the same time to interfere with the comfort or enjoy- 
 private. ineu of all within its reach, and to cause a special and 
 distinct injury to a limited class of persons, it is both a 
 public and private nuisance, and the person causing it is 
 obnoxious to both remedies. The person or persons suf- 
 fering the special damage may bring an action ; and at the 
 same time the Attorney-General may proceed on behalf of 
 the public (d). But in order to justify the private action, 
 the injury done to the plaintiff must be of a different 
 character from that which he suffers in common with the 
 public. It does not suffice that from his mere proximity 
 to the nuisance he happens to suffer more inconvenience 
 than others (e). 
 
 It would lead us too far afield here to enter upon an 
 investigation of the extensive subject as to what consti- 
 tutes a public or private nuisance. Such an inquiry is 
 more appropriate to a treatise on common law. The 
 question of nuisance or no nuisance is eminently one of 
 fact for a jury, and though, by virtue of 25 & 26 Vict, 
 c. 42 (/), or under the more recent provisions of the Judi- 
 cature Acts, it may be tried in the Chancery Division, it 
 
 Nuisance 
 or not a 
 question 
 for jury 
 
 (c) See Sohau v. De Held, 2 Sim. 
 N. S. 142. 
 
 (d) Att.G.x. U. K. Telegraph Co., 
 30 Beav. 2S7. 
 
 {() Ware v. Regent's Canul Co.. 
 De G. & J. 212. 
 (/) Rolfs Act.
 
 NUISANCES. Go 5 
 
 involves no distinctively equitable principles. Our concern 
 is merely with tliose special circumstances which call for 
 the peculiar remedy of injunction. 
 
 Nor is it necessary here to repeat at length those general General 
 conditions, already stated, which are always required byP"""P®^' 
 Courts of equity before they will grant this assistance in 
 aid of a legal right. In these as in other cases the plaintiff 
 must show that the legal remedy of damages would not 
 afford an adequate compensation ; and this generally 
 requires proof that the injury will be permanent, or con- 
 stantly recurring, or irreparable (g). As in cases of tres- 
 pass, so here, a mere threatened injury will not generally 
 suffice to call forth the interference of the Court. But if 
 a man insists upon his right to do the act complained of, 
 that is a sufficient ground to justify an injunction, even 
 though no nuisance has been actually committed (h) ; and 
 there are other cases in which the Court has so interfered 
 before the nuisance has been committed, on clear proof 
 that the act sought to be restrained will inevitably result 
 in injury (i). 
 
 It now only remains to illustrate the application of the 
 remedy from the cases most usually occurring in practice. 
 
 (1.) One large class of cases to which the remedy of Nuisances 
 injunction is appropriate consists of those in which the ^'^^'^^ing 
 right for which protection is sought concerns the enjoy- 
 ment of dwelling-houses or places of manufacture or 
 business. 
 
 With respect to such cases generally, it must be observed Generally, 
 that there exists no hard and fast line by which to deter- 
 mine whether or not an act amounts to a nuisance. This 
 depends upon the circumstances of the case ; for instance, 
 the purpose for which the house is used, and the character 
 of the neighbourhood. An act may amount to an action- 
 
 {g) Fishmowfera' Co. v. East India H. L. 333 ; Pennington v. Brinsop 
 
 Co., 1 Dick. 163 ; Wymtanley v. Lee, d-c. Co., 5 Ch. D. 769. 
 
 2 Swanst. 335. (0 Ifain^es v. 7'ai//or, 2 Ph. 209 ; 
 
 (h) EUiott V. N. E. R. Co., 1 J. & Dnicson v. Paver, 5 Ha. 430. 
 H. 156 ; 2 De G. F. & J. 423 ; 10
 
 650 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Ancient 
 lights. 
 
 General 
 rule as to 
 distance. 
 
 New erec- 
 tions in 
 place of 
 old ones. 
 
 able injury to a dwelling-house which would not be so with 
 respect to a manufactory ; and an act may be deemed 
 a nuisance in a sanatorium which would not be so in the 
 vicinity of wharves (k). INIoreover, the question will not 
 be determined by the standaid of persons of elegant and 
 dainty habits, but by the simple notions of those in ordinary 
 life (l). 
 
 A multitude of cases falling within this class concern 
 the right to light and air. A right to the free passage of 
 light and air may be acquired by grant or express agree- 
 ment, or by enjoyment for such time and under such 
 circumstances as will satisfy the Prescription Act (m) ; 
 and when so acquired a substantial interference therewith 
 is actionable. But in order to be so it must be sufficient 
 in degree to constitute a real injury, and not mere incon- 
 venience to the plaintiff, a question of difficulty which of 
 course no general expressions can decide (n) ; and practi- 
 cally speaking, when the injury is sufficient to warrant an 
 action at law, an injunction may be obtained in equity (o). 
 
 The Court will not usually restrain the erection of a 
 building the height of which above the ancient light is not 
 greater than the distance between the building and the 
 light (p). The fact of the building being at such a dis- 
 tance is prima facie, but not conclusive, evidence that it 
 will not cause a sufficient interference with the light to 
 warrant an injunction. In such cases the Court will only 
 restrain the building on special evidence of injury (q). 
 
 An owner of ancient lights, who in rebuilding or altering 
 his house puts in new windows or enlarges old ones, 
 acquires no right to a greater amount of light than he 
 enjoyed before, but he retains his right to as much light 
 
 {I) Jackion v. D. of Neivrastle, 3 
 I)e G. J. & S. 284 ; Kelk v. Pearson, 
 6 Oh. 81 L 
 
 {I) Walter v. Selfe, 41 De G. & S. 
 322. 
 
 (m) 2 & 3 Will IV., c. 71. See 
 Williams' K P., p. 451, 11th ed. 
 
 (n) Back v. Staceij, 2 Car. & P. 
 465. 
 
 (o) Leech v. Schweder, 9 Ch. 476. 
 
 ij}) Beadel v. Perry, 3 Eq. 466. 
 
 {q) City of London Breivei-y Co. v. 
 Tennant, 9 Ch. 212.
 
 NUISANX'ES. G57 
 
 as before, or rather to as much Hght as he could obtain 
 through windows of the same aperture as the old ones {r) ; 
 and it is not necessary that the new house should be for 
 all purposes identical with the old one (s). 
 
 There is no easement in English law corresponding to No right to 
 the servitude ne yrospectiii officiatur in Roman law. P'^"''^®'' • 
 However much the obstruction of a view may interfere 
 with the enjoyment or depreciate the value of property, it 
 affords no ground for an action {t). A fortiori the mere 
 uusightliness of a building (u), or the fact that it over- 
 looks grounds previously private gives no title to legal or 
 e(|uitable relief (x). And though the easement above Right to 
 referred to is commonly described as a right to light and 
 air, there seems to be no case in which an obstruction to 
 the free passage of air has been made the basis of an 
 action, or has been seriously considered in the estimation 
 of damages. It has been said that it is only in very rare 
 and special cases, involving danger to health, or at least 
 something very nearly approaching to it, that the Court 
 would be justified in interfering on the ground of diminu- 
 tion of air (y). 
 
 The right to "purity of air is an easement of quite a Pollution 
 different kind, quite independent of grant or prescription ; 
 and any considerable pollution thereof is a nuisance which 
 may be restrained {z). It depends greatly on the locality 
 what degree of interference will be sufficient to ground an 
 action. In any case there must be a sensible and real 
 damage inflicted. A right to carry on an offensive trade 
 may be acquired by prescription, but no length of time 
 can legalise a public nuisance (a). 
 
 (r) Turnei- v. Spooner, 1 Dr. & Sm. N. S. 842. 
 
 467 ; Aynsley v. Glover, 10 Ch. 286. (>/) Per Lord Selborne, 9 Ch. 
 
 (s) National, <£r. Co. v. Prudential 221 ; and see Raddiffe v. I), of Port- 
 Ass. Co., 26 W. R. 27. land, 3 Giflf. 702. 
 
 {t) Aldred's Ca., 9 Co. 58 a; (z) Aldrcd's Ca., svp ; St. Helens 
 
 Potts V. Smith, 6 Eq. 315. SmeUinrj Co. v. Tlppiwj, 11 H. L. 
 
 (m) Att.-G. V. Bowjhty, 2 Ves. 642. 
 
 jr. 453. (rt) Weld v. Hornhy, 7 East, 199. 
 
 (x) Jones V. Tapling, 12 C. B. 
 
 U U
 
 ings. 
 
 058 INJUNCTIONS RESTRAINING LEGAL WRONGS, 
 
 Noises. If^ again, real damage or great inconvenience is occasioned 
 
 by tlie carrying on of a noisy trade or otherwise causing 
 excessive noise or vibration, an action may be brought and 
 an injunction obtained to restrain its continuance. Here, 
 again, tlie decision depends greatly on the locality ; and 
 each case nnist be decided on its own circumstances. 
 Rights to (2.) Another extensive and important class of cases 
 support of I'ests on the right of a landowner to the lateral support of 
 land ; ]-jjg land in its natural state. This right is a common law 
 right altogether independent of prescription. He may, 
 therefore, restrain his neighbour from so digging into the 
 adjacent soil as to cause a subsidence of the surface of his 
 land. No action lies until damage has actually been 
 done ; but when this has happened, it is no defence to 
 show that the works causing the damage have been carried 
 on with care and skill (6). 
 of build- But the right to the support of a building by the 
 
 adjacent soil of an adjacent owner is of a different nature. 
 Tliis is not a natural right of property ; it is an easement 
 which can be acquired by prescription from the time of legal 
 memory, or by grant express or implied : but it is not within 
 the Prescription Act (c). It may, moreover, be acquired 
 by the circumstance that the building has stood for twenty 
 years, if during that period the owner of the adjacent soil 
 knew, or might have known, that the building was thereby 
 supjx)rted and was capable of making a grant ; and after 
 twenty years' enjoyment in point of fact the claim to the 
 right will not be defeated by proof that no grant of the 
 easement was ever made (d). 
 
 As between adjoining houses, no right to lateral support 
 is acquired by long enjoyment (e). The only case in which 
 it can be asserted seems to be where both houses have been 
 so built as to be mutually dependent on each other, and the 
 owner of both alienates one of them. He may then claim 
 
 (b) Hunt V. Peake, John. 710. 162 ; 6 App. C. 740. 
 
 ((■) 2 & 3 Will. IV. o. 71. (e) Peyton v. Mayor of London, 
 
 {(I) Angus v. Dalton, 4 Q. B. D. 9 B. & C. 736.
 
 NUISANCES. 659 
 
 in respect of the house he retains the support which it in 
 return affords to the other (/). 
 
 (8.) Another large class of nuisances which often provoke Rights 
 equitable interference, relates to rights respecting water, ^^ter ^"^ 
 All acts done by a man on his own land, whereby the 
 rights of his neighbour respecting water are injuriously 
 affected, or whereby water becomes a cause of damage to 
 the land of his neighbour, are considered as nuisances 
 relating to water (g). 
 
 We cannot digress into a particular account of the 
 various rights to water. They may be conveniently 
 classified as rights respecting quantity, and rights respect- 
 ing quality. 
 
 The riparian proprietors have a right to the use of the as to 
 water which flows by their land, and this right is incident ' 
 
 to the ownership of the adjacent soil. And the right 
 being enjoyed by the successive proprietors along the 
 bank, none may so interfere with the water as to prejudice 
 those above or below him, unless, of course, he has some 
 special title to exclusive enjoyment. He may therefore 
 be restrained from diverting the stream, or materially 
 diminishing the quantity which would naturally flow to 
 his neighboui*s below (h) ; or, on the other hand, from 
 damming back the stream so as to cause an overflow on 
 the land of his neighbour above him. 
 
 Secondly, a riparian proprietor has a right to a natural and 
 stream in a natural state of purity. He may therefore *^"* ^ ^" 
 restrain the fouling of the water, and this without even 
 proof of actual injury (i). And it is immaterial that the 
 stream was previously in some degree polluted. The right 
 is as clear to prevent an increase of pollution as to prevent 
 pollution in the first instance (k). 
 
 The rights respecting artificial watercourses must, how- Artificial 
 
 (/) Richards v. Rose, 9 Ex. 218. (t) Crossley v. Lightoiuler, 2 Ch. 
 
 (g) Kerr Inj. p. 224. 478 ; Pennington v. Brinsop, dr. Co., 
 
 {h) Ferrandv. Corp. of Bradford, 5 Ch. D. 772. 
 21 Beav. 412. (A) Ibid. 
 
 U U 2
 
 GGO INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 water- cver, bc carefully distinguished from the above. The 
 
 courses 
 
 water iti an artificial stream is the property of the person 
 by whom it is created or caused to flow. In the absence 
 of long- enjoyment he has no right to discharge it on the 
 land of another; while his neighbour cannot claim the 
 continuance of the flow, notwithstanding that a right to 
 discharge it may have been acquired by the producer (l). 
 
 Navigable The public rights in navigable rivers are likewise 
 frequently protected by means of the remedy of injunc- 
 tion. These rights may be infringed either by buildings, 
 &c., which interfere with the public right of navigation, 
 or by the fouling of rivers in such a manner as to be in- 
 jurious to the public health, or destructive of a fishery (m) ; 
 and where a sufficient case of injury is established, the 
 nuisance may be restrained at the suit of the Attorney- 
 General. 
 
 Other It must Suffice merely to mention other extensive classes 
 
 "of nuisances which are dealt with on the principles already 
 amply expounded ; for instance, obstructions of public high- 
 ways and private rights of way, obstructions of the sea- 
 shore and of ferries, markets, commons, &c. 
 
 Nuisances Before dismissing the subject of nuisances, it must be 
 
 bv statute observed that when a statutory power has been conferred 
 to do an act which otherwise might have been actionable, 
 the person so protected is not amenable to the process of 
 the Court as long as he confines himself strictly to the 
 limits of the power conferred upon him. The unlawful 
 character of the act is taken away by the sanction of the 
 legislature, however injurious it may be (n). Such powers 
 when conferred must, however, be strictly complied with. 
 Any injurious act which is not covered by their provisions 
 brings the oflender at once within the reach of the 
 law (o). 
 
 {I) Kerr Tnj. 23.5. Bridges v. Higliton, 1 1 L. T. N. S. 653. 
 
 [ill) See Att. G. v. Lonsdale, 7 Eq. {n) Hex v. Pease, 4 B. & A. 30. 
 
 388; Att.-G. v. Tei-ry, 9 Ch. 423; (o) AU.-G. v. Leeds Co7'p., 5 Ch. 
 
 Att.-G. V. Mayor, d:c. of Kingstmi- 591; Clowes v. Staffordshire Pot- 
 
 uiwn-Thames, 34 L. J. Ch. 481 ; teries Co., 8 Ch. 139.
 
 LIBEL, ETC. C61 
 
 Injunctions against libel, ^-c. 
 
 Abundant illustrations have been given of the applica- Crimes 
 tion of the remedy of injunction to restrain the commission "ti-ained 
 of torts. Moreover, it is clear that equity will not interfere 
 by injunction to restrain the commission of a crime. But 
 there is a class of offences which partakes both of the 
 nature of a tort and of that of a crime, inasmuch as a 
 breach of the rights to which they refer renders the 
 offender at once liable to a civil action and to criminal 
 proceedings. The most conspicuous illustration of such 
 offences is afforded by cases of libel ; and it is necessary to 
 inquire whether or not equity will interfere by injunction 
 in such cases. 
 
 Now the genera] purpose on wliich injunctions are Libel, 
 granted is for the protection of property ; and unless the ^ ." ^T 
 plaintiff can show that injury to his property is threatened, 
 equity will not assist him. It is evident that the offence 
 of libel will rarely come within this condition ; and accord- 
 ingly we find that as a rule an injunction cannot be obtained 
 to restrain a publication of this character (p). But in a 
 recent case in which the nature of the libel complained of 
 was to injure the plaintiffs in their trade, an injunction 
 was granted (q). It is evident, however, on both principle 
 and authority, that no such relief could be obtained in the 
 case of a merely personal slander or abuse (r). 
 
 II. Injunctions protecting Patent Rights, Copyright and 
 Trade Marks. 
 
 It is convenient to class together the rights here men- Grounds of 
 tioned, since though they are in themselves strongly ^]^J^^^^' 
 contrasted, the jurisdiction of equity respecting them rests 
 on the same foundation, namely, the desirability of prevent- 
 ing a multiplicity of suits and vexatious litigation. 
 
 (p) Mtdkerti V. Ward, 13 Eq. 619 ; Blassam, 14 Ch. D. 763. 
 Prudenticd Ass. Co. v. Knott, 10 Cb. (>•) See also Da// v. Bvownrli/ij, 
 
 142. 10 Ch. D. 294. 
 
 iq) Thorkjfs Cattle Food Co. v.
 
 GC2 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Inade- The rights ill themselves are fully recognised at law, and 
 
 the remedy have always sufficed to ground an action at law for 
 at law. damages. But it is evident that such a remedy sup- 
 plies an exceedingly inadequate protection. Not only 
 might the patentee, or author, or owner of a trade 
 mark be compelled to bring innumerable actions, and 
 thus be ruined by interminable litigation, but in many 
 cases damages, even if recovered, would aftord an insuffi- 
 cient redress for the injury sustained. The business or the 
 reputation might be impaired by the interference pending 
 the litigation, in a manner and to an extent which no 
 inquiry could ascertain (r). And further, the facility for 
 taking accounts afforded by equity, and yet more con- 
 spicuously its power of peremptorily stopping the infringe- 
 ment of the right by injunction, plainly indicate the 
 appropriateness of the jurisdiction of its Courts for dealing 
 with such matters. 
 
 It must suffice very briefly to describe the rights them- 
 selves here under review, the particular object being to 
 ascertain under what circumstances an aggrieved party can 
 obtain an injunction against an infringement of them. 
 1. Patent rights. 
 Origin of (1.) The abuse of the royal prerogative of gi'anting 
 pa en s. patents for monopolies, and the disputes which arose there- 
 from, are well-known matters of English history, and need 
 not be here recapitulated (s). Suffice it to say, that the 
 21 Jac. I. result thereof was the statute 21 Jac. I. c. 3, which abolished 
 the general power of gi'anting monopolies and patents, but 
 by express reservation excepted the power of granting 
 letters patent for the term of fourteen years or under 
 to the inventor of any new manufacture, provided it 
 were not contrary to law nor mischievous to the State {t). 
 On this statute rest the patent rights now enjoyed by 
 inventors. 
 
 (r) Ifogri v. Kirhi, 8 Ves. 223. St. Tr. 1110. 
 
 (s; See Mompcssons Case, 2 How. (t) Sect. 6. 
 
 c. 3.
 
 PATENT RIGHTS. G63 
 
 The first qnestion which arises is as to what may be the 
 subject of the right. 
 
 It is to be observed that the statute uses only the term "Maimfac- 
 " manufacture," and that it does not at all enlarge on the ^^^*^'^' 
 right as previously existing at common law. The subject- 
 matter of a patent must therefore come within this term. 
 and must be for a legal purpose. It would be supereroga- 
 tory to trace the course of the decisions by which these 
 conditions are now in some degree defined : it is sufficient 
 to briefly summarise their results. 
 
 The word "manufacture" not only comprehends any- What aom- 
 thing made, but also the mode, method or process of P^'^^^"^*^'^- 
 making a thing ; it comprises, therefore, not only vendible 
 articles, the result of chemical or mechanical processes, but 
 new machines or new combinations of machinery, or an 
 improvement of an old process (u). 
 
 It is, however, to be particularly observed, that a bare No patent 
 principle cannot be the subject of a patent. For instance, «t)tainable 
 
 •^ •* _ "^ '^ ^ ... for ^ mere 
 
 no one could obtain a patent for the mere idea of utilising principle, 
 electricity as a motor power (,r). The discovery of a 
 principle is not an invention in the sense of patent law. 
 The means must be shown of practically applying the prin- 
 ciple (y). This distinguishes a principle from a process. 
 
 Secondly, the invention must be new. It is not indeed Novelty 
 necessary that the object produced should be of a species ^^^^^^'^'^i'- 
 unknown before, but the process of making it must be the 
 true and original invention of the person seeking protec- 
 tion ; original not only in the sense that he derived it from 
 no one, but in the sense that no one had used it before (z). 
 Previous sale even by the inventor himself would avoid 
 the patent (a). Previous user beyond the realm is, how- 
 ever, no objection to a patent (6). 
 
 (w) Kerr Inj. 282; Johnson's Pat. (//) Bou/ton v. BuU, 2 H. Bl. 463. 
 
 Man. 5 ; Crane v. Price, 4 Ma'^. & (z) Tennnnfs Ca., Dav. on Pat. 
 
 G. 580; Ralston v. Smith, 11 H. L. 429. 
 
 223. («) Wood V. Zimnier, 1 Holt N. 
 
 (x) Jupe V. Pratt, 1 W. P. C. 145 ; P. C. 58. 
 
 Danrjcrjidd v. Jones, 13 L. T. N. y. ih) Edjehcrni v. Sttplicns, 2 Salk. 
 
 142. 447.
 
 6G4 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Utility. Thirdly, it must be useful ; but this word is applied with 
 
 considerable latitude (h). 
 Procedure. These are, briefly stated, the conditions which determine 
 what may be the subject of a patent right. But not only 
 must the matter for which protection is sought fall within 
 these conditions; the inventor must also, in order to procure 
 patent privilege, closely follow the procedure laid down, the 
 most important element in which is the specification. 
 Specifica- The specification, which must be enrolled in Chancery, 
 must particularly describe and ascertain the nature of the 
 invention, and show how it is to be applied and carried 
 into effect, the test of a good specification being " whether 
 a workman of ordinary skill can from merely reading it 
 make the thing of which it is the specification " (e). It 
 must contain the best and fullest information of the 
 patentee respecting the object of the patent (d). As 
 with regard to the objects of patents, so with regard to 
 procedure, it is impossible here to enter into detail. To 
 attempt to do so without occupying a considerable space 
 Avould only tend to delude the student. Keference should 
 15 & 16 be made to the Patent Act, 18.52 (e). 
 
 \m^ \^ ' ^■^■■^ ^ patent is infringed when a man directly or in- 
 amountsto directly uses the protected invention, or prodvices the same 
 men°^^' result by means only colourably different. Similarity in 
 principle between two machines will not constitute an 
 infringement, if the mode of operation is different, though 
 the same result may be attained (/) ; nor is there an 
 infringement in the application of a patented machine to a 
 different purpose from that for which it was patented (g). 
 It is an infringement to offer patented articles for sale, 
 though no sale takes place (It), or to buy or sell in the way 
 of trade, articles made by a machine which is itself an 
 
 {h) Munton V. Parker, Dav. P. C. M. & W. 806. 
 
 327. («') 1.0 & 16 Vict. c. 83. 
 
 (c) Per Lord Campbell, 8 E. & B. (/) .Seed v. Higuins, 8 H. L. 550. 
 937. See Plimpton v. Malcolmson, (ij) JS'eu-tcm v. Vaucher, 6 Ex. 859. 
 3 Ch. IJ. 569. (/() Oxhy v. Ilohlen, 8 C. B. N. S. 
 
 (d) Ibid. Neilson v, Ueirfm-d, 8 666.
 
 PATENT RIGHTS. 
 
 CG5 
 
 infringement (?'). It is immaterial whether there is or is 
 not an intention to infringe (k) ; even ignorance of the 
 existence of the patent is no answer (l). 
 
 When the question as to infringement depends on the When a 
 construction of the specification only, it is a question of i^^^ ^^g^ 
 law for the judge ; when it depends on the degree of dif- of fact. 
 ference or similarity between two things, it is a mixed 
 question of law and fact. In as far as it is a question of 
 fact it is for the jury ; the finding of the jury as to the fact 
 is applied according to law by the judge (vi). 
 
 (3.) Such being a brief review of the nature and con- Remedies, 
 ditions of patent right, we may now intelligibly observe 
 the application for its protection of the equitable remedies. 
 
 i. The injunctions sought in patent cases are usually of Injunction, 
 the interlocutory species. One of the leading authorities 
 on the principles of the Court respecting them is 
 
 HILL V. THOMPSON 
 
 [3 Mer. 622], 
 
 which not only substantiates and illustrates what has 
 been above stated as regards the necessity for novelty 
 and utility in the invention (n), but also clearly ex- 
 presses the circumstances under which an injunction 
 would be granted. From that case it appears that with When 
 respect to patents which have been for a long time in 
 the exclusive enjoyment of the plaintiff, equity would 
 presume an exclusive right, and would restrain a de- 
 fendant from infringement thereof without requiring him 
 to establish its validity at law, but that in the case of 
 recently granted patents it would not interpose by injunc- 
 tion until the right had been established at law (o). But 
 if a good prinfid facie case is made out the Court has 
 jurisdiction to interfere notwithstanding the recency of the 
 
 (i) Wright V. Ilitchcock, L. R. 5 {n) P. 629. 
 
 Ex. 38. (o) See also Univ. of 0. .(• C. v. 
 
 [k] Heath v. Unwin, 15 Sim. 552. Jiiehardmn, 6 Ves. 689 ; Muicman 
 
 (1) Curtis V. Piatt, 3 Ch. D. 138, n. v. Tetjff, 2 Russ. 385. 
 (m) Kerr Inj. 310.
 
 G06 IXJUNXTIONS KESTKAINING LEGAL WRONGS. 
 
 patent (p). The plaintiff nmst in any case show both a 
 lyrimd facie title to the patent, and a, primd facie case of 
 infringement (q). 
 When the If the Court is satisfied of the validity of the patent and 
 must be ^f the fact of the infringement, it may grant an injunction 
 estab- a^t once without requiring the plaintiff" to establish his legal 
 right ; but it will rarely do this if either the validity of 
 the patent or the fact of infringement is denied. In such 
 cases the Court will usually put the plaintiff to a trial of 
 the right, either in the meanwhile protecting him by 
 interim injunction, or ordering the motion to stand over 
 until the right has been tried ; the defendant meanwhile 
 keeping an account, and the plaintiff giving an under- 
 taking as to damages. The Court will, in its discretion, 
 follow whichever of these courses appears most convenient 
 under the circumstances of the case (r). 
 Proper A plaintiff who seeks the aid of the Court must apply 
 
 rVuiTd^ with proper diligence. Any open encouragement or 
 acquiescence in the invasion of his right, especially know- 
 ingly permitting the defendant to expend monies upon 
 the faith of non-interference, will bar his right to the 
 extraordinary interference of equity (s). 
 
 There are other equitable remedies incident to the protec- 
 tion of patents which may here be advantageously noticed. 
 Inspection. ii. Sometimes an owner of a patent can only obtain 
 satisfactory proof of infringement by means of an inspec- 
 tion of the defendant's premises. And if a pvir>id facie 
 case of this nature is made out, the Court may require the 
 defendant to submit to such inspection, subject to such 
 restrictions and conditions as it sees fit (t). The order may 
 be made on interlocutory aj^plication {ii). By a similar 
 
 (p) Plim'ptonv.SpiUer,iCih.'D.2^Q. v. Spiller, sup. 
 
 ('/) Bridaon v. MacaJpine, 8 Beav. (s) Bridsonv. Benecke, 12 Beav. 1; 
 
 230 ; Caldwell v. Vanvlissenrjen, 9 Bovill v. Crate, 1 Eq. 388. 
 
 B-a,. -^-l^; Bidford w Skeii-es, iMy. (t) Bennitt v. Whitehnuse, 28 
 
 & Cr. 5O0. Beav. 121 ; Sinr/er, dr. Co. v. Wil- 
 
 (r) Kerr Inj. 274 ; Bacon v. Jones, son, 13 W. E. 560 
 
 4 My. & Cr. 436 ; Renard v. Levin- (») Ennor v. Barvxll, 1 De G. F. 
 
 stein, 2 H. & M. 628 ; Plimpton v. & J. 520. 
 Mnlcolmson, 20 Eq, 37 ; Plimpton 
 
 I
 
 PATENT RIGHTS. 667 
 
 jurisdiction samples may be ordered to be delivered up for 
 analysis (x). 
 
 iii. The right to an account of profits in respect of Account, 
 articles manufactured or sold in violation of patent rights 
 is incident to a right to an injunction to restrain future 
 infringements. There can be no account if the case for an 
 injunction fails, or if at the hearing there is nothing on 
 which an injunction can operate (y). If an account is 
 decreed it extends to all the profits arising from the in- 
 fringement for six years previous to the action (z). 
 
 The aggrieved patentee may elect between an account Ele'^tion 
 and an inquiry as to damages. He cannot have both (a), account^ 
 He may, however, have an account against the manu- and in- 
 
 o • 11 • ■ 1 • quiry as to 
 
 lacturer, and also an inquiry as to damages against a damages, 
 person using the article (b). The Court will enforce dis- 
 covery by the defendant of such facts as to sales, &c., as 
 may be needed in the inquiry to ascertain the damages (a). 
 
 2. Coi^yrigld. 
 
 (1.) It is now established that copyright exists only by Origin of 
 statute {d). The term designates the exclusive right of *^® ^^^^*' 
 multiplying a work of literature or art after its publica- 
 tion (e). The right commences by publication (/), and 
 the publication must be in this country {g). Copyright is 
 declared by statute to be personal property (A), and it 
 therefore descends to the owner's legal personal repre- 
 sentatives. 
 
 There are many different species of copyright, differing Various 
 in accordance with the nature of the subiect-matter to ^P®*^'®f ^[ 
 
 copyright. 
 
 which it refers. 
 
 Literary copyright depends upon the statute 5 & 6 Vict. Literary 
 
 (x) Patent, d-c. Co. v. Walta; (h) Penn v. Bibhi/, 3 Eq. 308. 
 
 John. 727. (c) Howe v. M'Kernan, 30 Beav. 
 
 {y) Kerr Inj. 312 ; Baily v. 5i7 ; Saxby v. Easterbrook, 7 L. R 
 
 TayLw, 1 R. & M. 73 ; Smith v. L. Ex. 207. 
 <L S. W. Ji., Kay, 415. (d) Jefferys V. Boosey, 4 H. L. 833. 
 
 (z) Crossleii v. Derby Gas Co., 1 (e) Ibid. 920. 
 
 Webst. 119 ;■ 4 L. J. Ch. X. S. 25. (/) Ibid. 815. 
 
 (a) Neilson v. Betts, 5 L. R. H. (7) liontlrdi/c v. Low, 3 ibid. 100. 
 
 L. 22 ; Be Vitre v. Belts, 6 ib. 321. ('/() 5 & 6 Vict. c. 45, s. 25.
 
 GG8 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 copyright, c. 45, which defines it to be the sole exclusive liberty of 
 
 5 & 6 Vict. . .... 
 
 c. 45. printing or otherwise multiplying copies of any subject 
 
 included in the word book as therein comprehensively 
 defined. Copyright in books published in the lifetime of 
 the author is the property of the author, or his assigns, 
 during his life and seven years afterwards, or for forty-two 
 years, if the latter be the longer term. The copyright in 
 books published after the author's death lasts for forty- 
 two years (i). 
 
 What may To come within the protection of the Copyrights Acts, a 
 be subi'ect i v* o ' 
 
 thereof. work need not consist of new or original matter. A com- 
 pilation of old materials, or materials open to the research 
 of all men may be the subject of copyright. Thus copy- 
 right may exist in a directory (k), a calendar (/), or a 
 catalogue (m). But there can be no copyright in a book 
 the publication of whicli is illegal on the ground of im- 
 morality, indecency, sedition, or blasphemy (n). 
 
 Copyright in articles contributed to encyclojDsedias, 
 magazines or other periodical publications is especially 
 regulated by section 18 of the Act, which provides that 
 the copyright therein shall on payment be the property 
 of the proprietor of the publication for twenty-eight years, 
 and that from that time the right of publishing the articles 
 in a separate form shall revert to the author for the 
 remainder of the period given by the Act. 
 Lectures, Copyright in lectures, which was the subject of discussion 
 IV c 65 ' ^^^ Ahernethy v. Hutchinson (o), is specially provided for 
 
 by another statute ( j)). 
 Private As to private letters, generally speaking the writer may 
 
 restrain their publication by the person to whom they are 
 addressed, or by any third party {q), and the person receiv- 
 
 ((■) Sect. 3. 173 ; Walcot v. Walker, 7 Ves. 1 ; 
 
 (k) Kdlj V. Iloofcr, 4 .Tur. 2L Southeii v. Sho-wood, 2 Mer. 435. 
 
 (l) Lmiyman v. Winchester, 16 (") 1 H. & Tw. 40. 
 
 Ves. 269. ij') 5 & 6 Will. IV. c. 65. 
 
 (m) Hotten v. Arthur, 1 H. & M. (<[) Piype v. Curl, 2 Atk. 342; 
 
 603 ; Grace v. Neivman, 19 Eq. 624. Gee v. Pritchurd, 2 Swanst. 402. 
 
 {n) Stockdalc v. Omvhyn, 5 B. & C.
 
 COPYRIGHT. ()G9 
 
 ing a letter may restrain its publication by a stranger (r). 
 But these rights are liable to be qualified by considerations 
 of public policy, or by some personal equity (s). The 
 publication of unpublished manuscripts may clearly be 
 restrained by the persons to whom they belong (t). 
 
 (2.) It is not possible here to do more than cursorily What 
 glance at the wide and intricate subject of the infringe- infringe- 
 ment of copyright ; neither is it possible to indicate by ™ent. 
 general expressions what amounts to an infringement. General 
 A subsequent writer may, of course, make references to 
 and quotations from a prior publication ; but he may 
 not do so to such an extent as to sensibly diminish the 
 value of the original (u). The question is whether a 
 material and substantial part of the prior work has been 
 taken (x), and it is evident that the solution of this will 
 often be extremely difficult. Especially is this the case 
 where the pirated work is, like a calendar or directory, 
 compiled from materials open to every one. In such cases 
 similarity approaching almost to identity is inevitable, and 
 almost the only means by which the fact of piracy can be 
 sustained is by showing a community of errors. A bund 
 fide abridgment of a book is not j)iracy (y), but here again 
 the difficulty is great in drawing the line between good 
 and bad faith. The tendency of modern decisions is to 
 restrict rather than to extend the latitude allowed in some 
 of the earlier cases in this respect (z). 
 
 (3.) Copyright in dramatic and musical pieces differs in Dramatic 
 many respects from purely literary copyright. Literary ^^j^icai 
 copyright extends only to the multiplication of copies, but copyright. 
 this being an insufficient protection for dramatic authors 
 and composers, restrictions on public representation and 
 
 (r) Granard v. Dunkin, 1 Ba. & (u) Scott v. Stanford, 3 Eq. 718. 
 
 Be. 207 ; Thompson v. Stanhope, (x) Chatterton v. Gave, 2 C. P. D. 
 
 Amb. 737. 42. 
 
 (s) Perclval v. P}dpx>, 2 V. & B. [y) Newberi/s Ca., LoflFt. R. 775 ; 
 
 19 ; Drew Inj. 208, 209. Dickens v. Lee, 8 Jur. 184. 
 
 (t) Qaeensberry v. Shehheare, 2 (z) Tinsley v. Lacy, 1 H. & M. 
 
 Eden. 329 ; Prince Albert v. Strawje, 747 ; Dickens v. Lee, supra. 
 1 Mac. & G. 25.
 
 G70 INJUNXTIONS 1!EST1!AIN1N0 LEGAL WRONGS. 
 
 3 & 4 Will performance have been provided in addition by 3 & 4 
 5&6 Vict Will- I^- c- l-'^, and o & G Vict. c. 45; and the first public 
 c. 45. re])resentation or performance is in respect of such works 
 
 equivalent to publication. Public representation or per- 
 formance of such a work, or of a material and substantial 
 part thereof, amounts to an infringement of the copy- 
 right (6). Penalties are by statute (c) imposed for such 
 infringements ; but none the less an injunction may be 
 obtained to restrain an intended infringer (d). 
 Copyright (4.) Copyright in prints, engravings and etchings de- 
 &c. ' pends on the statutes 8 Geo. II. c. 13, 7 Geo. III. c. 38, 
 and 17 Geo. III. c. 57. The protection has been extended 
 to sculpture by 54 Geo. III. c. 50, to lithographs by 15 &; 
 16 Vict. c. 12, s. 14, and to original paintings, drawings 
 and photographs by 25 & 26 Vict. c. 28. Every copy of 
 such works which comes so near to the original as to give 
 the same idea created by the original is an infringement (e), 
 and this includes any copy made by photograph}^ or other 
 chemical process ( /'). 
 Copyright (5 ) Copyright in designs for ornament is regulated by 
 fo/oTnf' ^ & 6 Vict. c. 100, 6 & 7 Vict. c. G5, 13 & 14 Vict. c. 104, 
 meiit, 21 & 22 Vict. c. 70, and 24 & 25 Vict. c. 73 ; the duration 
 of the protection differing according to the articles pro- 
 tected (g). A design within these statutes need not neces- 
 sarily be a new invention ; a combination of old materials 
 may be protected if the design be new (h). 
 and de- Designs for utility are protected by 6 & 7 Vict. c. 65 and 
 
 utility.'^'^ 13 & 14 Vict. c. 104, and have reference to the shape or 
 configuration of an article as conducive to its utility. The 
 statutes do not apply to a combination of old designs, or to 
 inventions or new applications however useful ; except in 
 
 (6) Reade v. Laci/, 1 J. & H. 524 ; (/) Gamhart v. BuU, 14 C. B. 
 
 Chatterton v. Cave, 2 C. P. D. 42. N. S. 306 ; Graves v. Ashford, 2 
 
 (c) 3 & 4 Will IV. c. 15. L. R. C. P. 410. 
 
 (d) Russell V. Smith, 15 Sim. 181. {g) See Grave's Ca., 4 L. R. Q. B. 
 
 (e) West V. Francis, 5 B. & Aid. 715. 
 
 743; Moore v. Clark, 9 M. & W. [h] Holdsworth v. Macrae,2Jj.'R. 
 
 692. H. L. 380.
 
 COPYRIGHT. 071 
 
 SO far as the shape and configuration confer utility upon 
 the invention (i). 
 
 The foregoing very general descriptions must here suffice 
 to indicate the nature of the various species of copyright. 
 For further details, and in particular as to the question of 
 international copyright, reference should be made to works 
 specially devoted to the subject. 
 
 (G.) The proprietor of a copyright cannot, generally speak- Action, 
 ing, maintain an action in respect of the infringement of maintain- 
 his right, until his copyright has been registered (k) ; and able, 
 he can obtain no injunction until the defendant's work has ^^''^*^'^" 
 been published (l). It is not, however, necessary that he 
 should show a clear legal title. A fair prima facie title, or Primdfade 
 a clear colour of title, legal or equitable, is sufficient, even *|g^t^" 
 though limited in point of time or extent (m). 
 
 Delay or acquiescence, unless adecjuately explained, will Plaintiff 
 be fatal to the claim (n), as also will participation in the ^jij^^q^ 
 conduct complained of (o). Under 5 & 6 Vict. c. 45, s. 2G, 
 all actions must be commenced within twelve months of 
 the offence. 
 
 The injunction may be granted against the whole or a Nature of 
 part of the work, according to the extent of the piracy (p) ; *r*^ '"junc- 
 the whole will be included if the pirated part is so inter- 
 mixed with the original matter as to be practically in- 
 separable (q). In copyright, as in patent cases, an inter- 
 locutory injunction if granted usually determines the action. 
 The plaintiff is, however, entitled to a perpetual in- 
 junction, and this will be decreed with costs at the hearing, 
 unless the defendant has submitted to the interlocutory 
 injunction, and offered to pay the costs up to that time {/•), 
 
 Whatever relief is required by the plaintiff, as incident Discovery. 
 
 {i) Rogers v. Driver, 16 Q. B. (n) Maioman v. Tegg, 2 Russ. 
 
 102. 393. 
 
 (k) See 5 &6 Vict. c. 45, .s. 24, and (o) Rundell v. Murray, Jac. 311. 
 
 the various other statutes referred to. {p) Letvis v. FuUarton, 2 Beav. 6. 
 
 (I) Mon-is V. Wright, 5 Ch. 279. (q) Mawman v. Tegg, sup. ; Kellij 
 
 (m) Univ. of 0. k- C. v. Richard- v. Morris, 1 Eq. 697. 
 
 son, 6 Ves. 689 ; Nichol v. Stoclalale, (?•) MiUinglon v. Fox, 3 My. & 
 
 3 Swanst. 687. Cr. 352.
 
 672 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Account. 
 
 G^eneral 
 principles 
 of trade- 
 marks. 
 
 to the right to an injunction, may be decreed to him. 
 Thus he may have discovery of the original sources from 
 which the defendant alleges that he has taken his work (.s). 
 A riglit to an account of profits is also incident to the 
 injunction (t). By statute the plaintiff is also entitled to 
 delivery up of all copies of the defendant's work (u). 
 
 In deciding the question of piracy, the Court now usually 
 inspects the work itself (x). 
 
 3. Trade mai'ks. 
 
 A third species of right for the protection of which the 
 remedy of injunction is peculiarly sidtable, is that to the 
 exclusive use of a trade mark. 
 
 (1.) No man has a right to sell his goods as being the 
 goods of another manuflicturer or trader. If, therefore, 
 some particular mark or symbol has come to be recog- 
 nised in trade as the mark of the goods of a particular 
 person, another person cannot lawfully mark his goods 
 with that mark so as to induce a purchaser to believe that 
 they are the goods of the person entitled to use the 
 mark (y). The right is limited to the use of the mark 
 in connexion with a particular class of goods ; that is to say, 
 it would be no infringement to mark goods of a different 
 class with the same symbol (z). Moreover, if an article has 
 acquired a certain name in the market, which name indi- 
 cates its nature rather than its being of a particular manu- 
 facture, any man may call it by that name, though in the 
 first place it may have been the name of the inventor or 
 original maker (a). 
 What may (2.) Any name, symbol, or emblem which is not merely 
 be a trade- jg^,^,j,-p^^^g of an article, or which does not denote the 
 
 mark. ^ _ 
 
 general character of a business, may constitute a trade 
 
 (s) Kelly V. Wi/man, 17 W. R. 
 399. 
 
 {t) Baily v. Taylor, 1 R. & M. 73 ; 
 Colbm-n v. Simms, 2 Ha. 560. 
 
 (a) 5 & 6 Vict. 0. 45, s. 23 ; Mac- 
 rae V. Holdsworth, 2 De G. & S. 
 497. 
 
 (x) Lexois V. Fulktrton, 2 Beav. 6. 
 
 (y) Perry v. Truefitt, 6 Beav. 66. 
 
 (2) Edehten v. E., 1 De G. J. & S. 
 185. 
 
 (a) Hall V. Barrows, 4 De G. J. & 
 S. 150 ; Bury v. Bedford, ibid. JS52.
 
 TRADE MARKS. 673 
 
 raark (b). No person other than the original inventor, or 
 those claiming through him, may use such words as " the 
 original " or " the only genuine " as a trade mark (c) ; but 
 a man cannot be prevented from calling goods by his own 
 name merely because someone of the same name invented 
 the goods or made them before him (d). The same prin- 
 ciple applies in the case of a partnership name, if the use 
 of the name be bond fide ; but the Court will not suffer a 
 name to be used for the purpose of having the benefit of 
 the reputation which another firm has acquired. This 
 amounts to a fraud on the piiblic (e). 
 
 (3.) By the Trade Marks' Registration Act, 1875 (/), Registra- 
 registration of a trade mark was required before proceed- gg ^ „q 
 ings to prevent its infringement could be instituted. The Vict. c. 91. 
 
 Amendment Act of 1S7G, however, provides that want of ff.*^ "^^^o 
 
 , ^ Vict. c. .3-3. 
 
 registration shall not be conclusive against the right to 
 take proceedings, a certificate of refusal of registration 
 being sufficient to enable the owner to proceed (g). In 
 this, as in other cases, prompt action must be taken by the 
 plaintiff after discovery of the fraud. Delay or acquies- 
 cence will bar his remedy (Ji). 
 
 (4.) As to what amounts to colourable imitation or in- What 
 fringement, reference may be made to Leather Cloth Co. v. fetation'*' 
 American Cloth Co. (i), Seixo v. Provizende {k), and the 
 cases therein cited. Almost all that can be laid down respect- 
 ing this question in general terms is that the resemblance 
 must be such as to deceive an ordinary purchaser ; it is 
 sufficient if it be calculated to deceive even the unwary ; 
 and it is not incumbent on the plaintiff to show that any 
 one has been actually deceived. On the other hand, it has 
 
 [h) Braham v. Bustard, 1 H. & D. 748. 
 
 M. 447 ; Burgess v. B., 3 De G. M. (/) 38 & 39 Vict. c. 91. 
 
 & G. 896 ; Raggett v. Findlater, 17 {g) 39 & 40 Vict. c. 33 ; Exp. 
 
 Eq. 29. Stephens, 3 Ch. D. 659; Jie Bar- 
 
 (c) Cocks V. Chandler, 11 Eq. 449 ; row s Trade Marks, 5 Ch. D. 353. 
 James v. /., 13 Eq. 425. (/<) Motley v. Doionman, 3 My. & 
 
 (d) Burgess v. B., sup. Cr. 1 ; Lee v. Haley, 5 Ch. 160. 
 
 (e) Croft V. Day, 1 Beav. 84 ; (/) 11 H. L. 523. 
 Singer <kc. v. Wilson, 2 Ch. D. 453; (/) 1 Ch. 192. 
 Massnm v. Thorley's dr. Co., 14 Cli. 
 
 X X
 
 C74 INJUNCTIONS RESTRAINING LEGAL WRONGS, 
 
 been held that the fact of one person having been actually 
 deceived is not conclusive proof of an improper imita- 
 tion (I). Each case must be judged on its own merits. 
 Remedies. (5.) Incident to the remedy of injunction in cases of 
 infringement is the right to an account of the profits made 
 by the illegal user (m). An innocent vendor of goods 
 spuriously marked is, however, not liable to an account, 
 except in respect of sales made after he has acquired 
 knowledge of the wrong {n). 
 
 (1) Civil Service Siip}')hj Ass. v. 244. 
 Dean, 13 Ch. D. 512. (n) Moet v. Couston, 33 Beav. 
 
 (m) Burgess v. Hills, 26 Beav. 678.
 
 G75 
 
 CHAPTER VII. 
 
 Instances of Jurisdiction analogous to Injunction. 
 
 I. Cancellation and Delivery up of Docwnients. 
 II. Actions to establish Wills. 
 
 III. Actions Quia Timet. 
 
 IV. Actions in the nature of Bills of Peace. 
 V. Writ of Ne Exeat Regno. 
 
 VI. Actions to perpetuate Testimony. 
 
 I. Cancellation and Delivery up of Documents. 
 
 Courts of equity have long been wont to entertain suits Grounds of 
 which seek the cancellation, rescission, or delivery up of ^jj^^j'""^' 
 instruments, when there is a danger of their being im- 
 properly employed for the injury of the plaintiff. 
 
 It often happens that agreements, securities, or deeds 
 which have answered the purposes for which they were 
 created, or which are voidable or even entirely void, have 
 nevertheless an appearance of validity, and may therefore 
 be used by an ill-disposed person for purposes of annoy- 
 ance, vexation, and fraud. In such circumstances, no 
 preventive remedy could be obtained at law, and a useful 
 field was accordingly left for the peculiar jurisdiction of 
 equity (a). 
 
 It is apparent that the relief sought in such cases bears Remedy 
 some resemblance to that of Specific Performance ; and as lionai y. 
 
 (a) Story, 692. 
 
 X X 2
 
 676 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 When 
 granted. 
 
 1. Void 
 instru- 
 ments. 
 
 Relief 
 
 granted 
 
 unless 
 
 illegality is 
 
 apparent 
 
 on their 
 
 face. 
 
 Not if it 
 is so. 
 
 in that case, so in this, the exercise of the jurisdiction is 
 eminently a matter within the discretion of the Court. A 
 decree cannot be demanded as a matter of right ; the 
 Court will consider all the circumstances of the case, and 
 impose such conditions as it thinks fit (6). It remains to 
 consider in what cases, and under what circumstances, 
 equity will grant the relief desired. 
 
 There are three classes of instruments to be particularly 
 considered : First, those which are utterly void ; secondl}^, 
 those which are voidable ; thirdly, those which are in 
 themselves unexceptionable, but to which the plaintiff 
 has a title as against the defendant. 
 
 1. As to void instruments, it was at one time questioned 
 whether Courts of equity ought to interfere to procure their 
 cancellation or delivery vip. It was argued against the 
 jurisdiction, that such instruments being of no effect at 
 law, there was no necessity for any equitable interference 
 respecting them ; and further that if an equitable remedy 
 was needed, the proper course would be the issuing of a 
 perpetual injunction against the use -of the instrument (c). 
 
 On the other hand, more recent cases have proceeded on 
 the principle that if there is a real danger that such an 
 instrument may be injuriously used, that alone supplies 
 sufficient ground for equitable interference (d). 
 
 The question whether the Court would or would not 
 interfere, therefore, resolved itself into the question whether 
 the instrument was of such a nature as to admit of injuri- 
 ous use. If so, it would be ordered to be delivered up ; 
 if not, equity would not interpose. 
 
 If, then, the illegality of the instrument, whether agree- 
 ment, security, or deed, is apparent on the face of it, so that 
 its nullity can admit of no doubt, there is no sufficient 
 ground for seeking equitable assistance respecting it. 
 Such a document is plainly innocuous ; no lapse of time 
 
 (b) Story, 693 ; Goring v. Nash, 
 3 Atk. 188. 
 
 (c) Story, 698 ; Hilton v. Barrow, 
 1 Ves. jr. 284 ; Ryan v. Machnath, 
 
 3 Bro. C. C. 15, 16. 
 
 (d) Swanston's note to Davis v. 
 D. of Marlborough, 2 Swanst. 157.
 
 CANCELLATION AND DELIVERY UP OF DOCUMENTS. 677 
 
 can add to its power so as to render it dangerous. Illus- 
 trations are supplied by instruments which on their 
 face disclose an illegal consideration, or the fact that they 
 have been fully satisfied (e). Equity, which will do nothing 
 which is useless, will not interfere in such cases. 
 
 Where, however, an instrument, though in fact void, has 
 an appearance of validity, the case is otherwise. Then 
 there exists a material danger against which protection 
 may reasonably be sought. Thus a deed purporting to Cases in 
 convey hereditaments, as long as it remains in hostile equity has 
 hands, has a tendency to throw a cloud on the title (/ ) ; a granted 
 mere written agreement may be used vexatiously and 
 improperly {g) ; and in such cases lapse of time only adds 
 to the danger, by rendering it more difficult to procure the 
 evidence necessary to expose the fraud Qi). In all such 
 cases equity considers it against conscience for a party to 
 hold or retain the mischievous document, and its juris- 
 diction to order delivery up and cancellation is well 
 established. Forged instruments have similarly been held 
 to be delivered up, without any prior trial at law as to the 
 forgery (i). 
 
 2. As to voidable instruments, it is not now necessary to Voidable 
 repeat what has already been said under the headings of ^^gj^^g" 
 Fraud and Mistake (k) respecting the circumstances 
 which will give a person the option of avoiding his own 
 acts. The present question has a close connexion with 
 what was there stated, and referring thereto, it may be 
 briefly answered — 
 
 Equity will set aside and cancel a voidable agreement 
 or security : — 
 
 (1.) When the defendant has been guilty of actual Cancelled 
 fraud, in which the plaintiff has not participated. of fraud in 
 
 defendant. 
 
 (e) Simpson v. Howden, 3 My. & 20. 
 Cr. 97; Smyth v. Gri§n, 13 Sim. (h) Kemp v. Prior, 7 Ves. 248. 
 
 2ib; Threlfallv. Lunt,'! ^\m.Q21. {>) Peake v. Hif/hfidd, 1 Russ. 
 
 (/) Pierce v. V/ebb, 3 Bro. C. C. 559 ; Johnston v. Reiiton, 9Eq. 181. 
 16; Bijne v. Vivian, 5 Ves. 607. {k) pp. 139, et seq., 186, et seq. 
 
 (g) Bromley v. Holland, 7 Ves.
 
 G78 
 
 Plaintiff 
 must be 
 innocent, 
 or not in 
 pari delicto, 
 
 Relief on 
 grounds of 
 public 
 policy. 
 Even 
 though 
 plaintiff 
 h.as par- 
 ticipated. 
 
 Valid in- 
 struments. 
 
 Relief on 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 This is the simplest and clearest case, plainly conformable 
 to the elementary rule that a man shall not be allowed to 
 reap an advantage from his own fraud against one who is 
 innocent. 
 
 (2.) Where the plaintiff, as well as the defendant, has 
 in some degree participated in the fraud, but they are not 
 in pari delicto. 
 
 It is a general maxim that he who comes into equity 
 must come with clean hands ; and as a rule no relief will 
 be given to one who has been guilty of any unconscientious 
 dealing respecting the subject-matter of the suit. But if 
 a fraud has been committed by the defendant, and par- 
 ticipated in by the plaintiff, yet if the plaintiff acted under 
 the influence of oppression, imposition, hardship, or other 
 undue influence, such as may arise from great inequality 
 between the ages and conditions of the parties, he may 
 succeed in establishing his claim to relief (l). 
 
 (3.) If the transaction has been in effect a fraud upon 
 public policy. 
 
 In these cases, as in those last mentioned, relief may be 
 given notwithstanding the participation of the plaintiff in 
 the fraud ; the reason in this case is that public policy 
 would be defeated by allowing the transaction to stand. 
 Thus gaming securities have on this ground been decreed 
 to be given up (pi), and other agreements founded on 
 immoral considerations cancelled (n). 
 
 Save, however, in these two exceptional cases, equity 
 will peremptorily refuse its assistance to one who has him- 
 self been guilty of fraud, whether actual or con.structive (o). 
 
 8. Lastly, we have to consider those cases in which the 
 plaintiff' seeks the delivery up of an insti'ument, not on the 
 ground of any equity arising out of the nature of the instru- 
 ment itself, but because he has an equitable right as 
 
 I 
 
 {I) Osborne v. WiUiams, 18 Ves. 
 379 ; Bosanquet v. Dashwood, Ca. t. 
 Talb. 37, 40, 41. 
 
 {m) Milltoun v. Stewart, 3 My. & 
 Cr. 18. 
 
 («) W. V. B., 32 Beav. 574. 
 
 (o) Franco v. Bolton, 3 Ves. 386 ; 
 St. John V. St. J., 11 ih. 535 ; 
 Ayerst v. Jenkins, 16 Eq. 275.
 
 CANCELLATION AND DELIVERY UP OF DOCUMENTS. G79 
 
 against the defendant to its possession or custody. In ^j^^""*^ °^ 
 these cases there is of course no question as to cancellation ; 
 the relief sought is simply delivery up. 
 
 A person is entitled to the title-deeds of his own 
 property ; thus heirs-at-law, devisees, and other persons 
 properly entitled to the custody and possession of the title- 
 deeds of their property may come into equity and obtain a 
 decree for the specific delivery of them (p) ; and the same 
 doctrine applies to other instruments, such as bonds, 
 negotiable instruments, &;c., which are detained from per- 
 sons who have a legal or equitable interest in them (q). 
 
 In such cases the Courts of Common Law could not 
 afford complete redress, since the prescribed forms of their 
 remedies rarely enabled them to pronounce a judgment 
 in rem. 
 
 Similarly, remaindermen and reversioners, and other Preserva- 
 persons having limited or ulterior interests in real estate, deeds, 
 may in many cases take measures in equity to secure the 
 preservation of their title-deeds (r). The plaintiff must, 
 however, in such cases be prepared to show the necessity 
 for his action by proving that there is some danger of the 
 loss or destruction of the instruments unless protected 
 by the Court, and his interest must not be too remote (s). 
 
 It may be here observed that voluntary agreements Vohmtary 
 untainted with fraud, although not enforceable in equity, ments not 
 will not be set aside. Unless such a deed reserves a power relieved 
 of revocation, the settlor will be bound thereby (t). 
 
 II. Actions to estahlish Wills. 
 
 In considering the equitable jurisdiction to establish 
 wills, the student must carefully observe two things: first, 
 
 (p) Reeves v. R, 9 Mod. 128 ; Stanford v. Roberts, 6 Ch. 307. 
 
 Tanner v. Wise, 3 P. Wms. 296. (s) Ivie v. /., 1 Atk. 431 ; Ford 
 
 (q) Kaye v. Moore, 1 S. & S. 61 ; v. Peering, 1 Ves. jr. 76. 
 
 Freeman v. Fairlie, 3 Mer. 30. (t) Viiliers v. Beaumont, 1 Vern. 
 
 (r) Smith v. Cooke, 3 Atk. 382 ; 101 ; £iU v. C'ureton, 2 My. & K. 
 
 and see/c«ne>' V. Morris, 1 Ch. 603; 503.
 
 GNO 
 
 REMEDIES ANALOUOIS TO INJUNCTION. 
 
 Will of 
 personalty 
 requii'ea 
 legal 
 personal 
 represen- 
 tative, 
 
 in whom 
 
 the pro- 
 perty vests. 
 
 Will of 
 real pro- 
 perty is a 
 convey- 
 ance to the 
 devisee. 
 
 Former 
 must be 
 proved ; 
 latter not 
 
 Distinc- 
 tion 
 
 between 
 disputes 
 as to 
 validity 
 and as to 
 constnac- 
 tion. 
 
 X" general 
 
 the distinction between the juristic effects of wills of 
 personalty and wills of realty ; secondly, the distinction 
 between disputes as to the validity and disputes as to the 
 construction of wills. 
 
 1, A will of personal property requires for its effectual 
 performance the appointment of a legal personal represen- 
 tative. Usually the will itself provides for this by the 
 appointment of one or more executors. If not, or if those 
 appointed are incapable, the Court supplies the vacancy 
 by the appointment of an administrator. If the will is 
 in other respects valid, the administrator cum testamento 
 annexo acts in conformity therewith as an executor. The 
 persona of the testator devolves in a measure upon him ; 
 he is liable for the debts ; the general personalty vests in 
 him, and only passes to the beneficiaries by his consent. 
 
 A will of real property, on the other hand, is in effect a 
 conveyance. Putting aside for the present the various 
 steps by which it has become liable to debts, and in some 
 respects placed within the power of the executors, the 
 will itself may be regarded as an assignment of the real 
 estate to the devisee or devisees named. 
 
 A will of personalty, again, is ineffectual until it is 
 proved in the proper Court, and administration granted to 
 the personal representative. A will of realty does not 
 require any such proof; and is of full effect though no 
 personal representative at all be appointed. 
 
 2. The second distinction needs only to be stated. It 
 is evident that the question whether a certain document 
 is or is not a will is quite distinct from the question as to 
 what its language means. 
 
 When we speak of the jurisdiction of Courts of equity 
 over wills we refer to the former of these questions. The 
 construction of wills is a matter in which they are con- 
 tinually concerned, and which has already come largely 
 under our consideration in connexion with the adminis- 
 tration of assets. 
 
 Previous to the Judicature Acts, the Court of Chancery
 
 ACTIONS TO ESTABLISH WILLS. 681 
 
 had no general iurisdiction as to the validity of wills. As h'nsdic- 
 
 . "^ , tion m 
 
 regards wills of personal property the Court of Probate, chancery 
 which by virtue of 20 & 21 Vict. c. 77, succeeded in 1857 Validity of 
 to the functions of the Ecclesiastical Court, was the wills ; 
 proper forum ; and the same Court at the same time ac- 
 quired jurisdiction as to wills of real property, which was 
 formerly exercised by the Courts of Common Pleas and 
 Queen's Bench. 
 
 The position of the Court of Chancery with respect to wills "o* even in 
 
 cases of 
 
 IS well illustrated by the case of Allen v. M'Pherson (u), fraud. 
 in which it was sought to set aside a will of personalty by 
 suit in equity on the ground of undue influence, notwith- 
 standing that it had been admitted to probate in the 
 Ecclesiastical Court ; but the bill was dismissed for want 
 of jurisdiction. A similar decision has been much more 
 recently arrived at in a case in which both real and per- 
 sonal property were concerned (x). It has indeed been held 
 under the Judicature Acts that the Chancery Division has 
 now concurrent jurisdiction with the Probate Division to 
 grant probate of wills (y) ; but the same case shows that 
 it is most unlikely to put this power into exercise. 
 
 But notwithstanding these considerations, and previous 
 to the Judicature Acts, the cases were numerous in which a 
 qualified jurisdiction respecting wills was exercised by 
 Courts of equity. 
 
 In the first place, if a will came incidentally before the Incidental 
 
 iiinscliC" 
 
 Court, and its validity had not been admitted or elsewhere tion before 
 established, the Court effectually determined the question. J"*^- -^<^^^' 
 This was done either by directing an issue to be tried at 
 law, or by the production and examination of witnesses in 
 the Court of equity itself ; and when the validity of the will 
 was thus once determined, the rights of those claiming 
 under it might be established, if necessary, by a perpetual 
 injunction against the heir (z). 
 
 (u) 1 H. L. 191. (?/) Pimiey v. Hunt, 6 Ch. D. 101. 
 
 {x) Meluish v. Milton, 3 Ch. D. (2) Sheffield v. D. of Bucking- 
 
 27. hamshire, 1 Atk. 628.
 
 082 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 Wills of Secondly, as regards wills purely of real estate, which 
 
 estate recjiiire neither the appointment of an executor nor a 
 in^e'^uTtv^^ grant of probate, equity had, and seemingly still has, juris- 
 diction to entertain a suit by a devisee to establish his 
 right against the heir, by means of a perpetual injunction 
 restraining him from contesting its validity in future (a). 
 Such action could not have been brought at law, and yet 
 might be necessary for the security of the devisee ; since the 
 heir might delay seeking ejectment against him until the 
 evidence was grown obscure. The jurisdiction, therefore, 
 is in some respects analogous to that which empowers 
 interference quia timet (b). 
 Boyse v. A leading authority respecting actions of this nature is 
 
 borough. Boyse V. RosshoTougli (c), where a will was established 
 at the suit of a devisee against an heir, although the heir 
 had brought no ejectment against the devisee, although no 
 trusts were declared by the will, and although there was 
 no necessity for the administration of the estate by the 
 Court. It has also been held that the Court has power to 
 establish such a will not only against the heir, but against 
 all persons setting up adverse claims — for instance, claims 
 depending on a prior will {d). 
 Heir can- On the Other hand, an heir, having a complete legal 
 contest a remedy by action of ejectment, could not have come into 
 ^^1- equity as plaintiff to contest the validity of a will, except, 
 
 at least, by consent of the devisee. Under the present 
 practice, these distinctions between the jurisdiction of 
 Courts of law and equity have, of course, ceased to exist. 
 
 The combined result of legislation and decision, there- 
 fore, practically confines the jurisdiction to establish wills 
 to a very limited number of cases — namely, to wills relating 
 solely to real property. 
 
 (a) Booth V. BlundeU, 19 Ves. De G. M. & G. 817 ; 6 H. L. 1. 
 494, 509. {(1) Ibid. ; Lovett v. £., 3 K. & 
 
 (6) Lifra, p. 683. J. 1. 
 ((■) Kay, 71 ; 1 K. & J. 124 ; 3 
 
 I
 
 ACTIONS QUIA TLMET. 683 
 
 III. Actions Quia Timet. 
 
 In certain circumstances equity has jurisdiction to 
 interfere for the protection of a right before any injury 
 has been actually done, and a party who fears a probable 
 invasion of his right may establish an action for his pro- 
 tection without claiming any other relief. 
 
 The nature of the relief given depends, of course, upon Nature of 
 
 ,1 . ,■,.■,.. , . . relief given 
 
 tne circumstances under which it is sought; sometimes it quia timet. 
 takes the form of the appointment of a receiver of rents or 
 other income ; sometimes that of an order to pay a fund 
 into Court ; sometimes security is directed to be given ; 
 sometimes it suffices merely to issue an injunction (e). 
 
 The object of the action in all cases is to preserve pro- 
 perty to its appropriate uses and ends. It must here 
 suffice to adduce a few illustrations of the circumstances 
 which call for and warrant the exercise of the jurisdiction. 
 
 1. If property in the hands of a trustee is in danger of Preserva- 
 being diverted or squandered, to the injury of any claimant trust°pro- 
 having a present or prospective title thereto, the Court perty. 
 will take such measures for its protection as it deems 
 requisite. And the same principle aj^plies to executors or 
 administrators, if there is danger of collusion between 
 
 them and the debtors of the estate, or of a waste of the 
 estate from any other cause (/). Such cases will generally Apijoint- 
 be met by the appointment of a receiver ; and when this receiver, 
 is done the appointment is made for the benefit of all the 
 parties in interest, and not for that of the plaintiff only (g). 
 The appointment of a receiver rests in the discretion of 
 the Court; and when appointed he is regarded as an 
 officer of the Court, and therefore subject to its orders (h) : 
 he is commonly required to give security. 
 
 2. Where the tenants of a particular estate for life or in Keeping 
 
 (e) Story, 826. if/) Davis v. D. of Marlboro uc/h, 1 
 
 (/) Ibid. 827-8; ra>/lor v. Swanst. 83 ; 2 i'6. 125. 
 Allen, 2 Atk. 21-3. ' (/*) Skij) v. Ilarimod, 3 Atk. 564.
 
 684 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 down tail neglect to keep down the interest due upon incum- 
 brances, brances, the Court often appoints a receiver to secure the 
 
 performance of this duty (i). 
 Protection 3. The jurisdiction is also exercised for the protection of 
 ' sureties. A surety who apprehends loss from the delay of 
 his creditor to sue the principal debtor may come into 
 equity to compel the discharge of the debt (k). 
 Protection 4. In all cases in which there is a future right of enjoy- 
 rightsTn ment of personal property, and there is danger of loss or 
 personalty, deterioration or injury to it in the hands of the party 
 entitled to present possession, equity has power to inter- 
 pose, and grant relief on an action in the nature of a bill 
 Security, quia timet (I). Such cases may be met by an order to 
 
 Payment give Security (m) ; or still more effectually by requiring 
 into Court. ^^^^ ^^^^ ^^ ^^ p^.^ .^^^ ^^^^^^ ^^-^^ Whenever trust 
 
 money is traced to hands not entitled to hold it, the Court 
 will, on the application of the cestui que trusts, order its 
 payment into Court (o). 
 Injunc- j^ jg^ Qf course, unnecessary here to dwell upon the 
 
 circumstances which warrant the gi'anting of injunctions 
 for the protection of property, these having been already 
 copiously illustrated. We need only further observe that 
 the same authority, above quoted, which now enables the 
 Court to grant an injunction by an interlocutory order 
 whenever it seems to be just or convenient, enables it to 
 
 Jud. Act, appoint a receiver in a similar manner and on similar 
 
 1873 s. 25 
 
 8ub-s. 8. ' conditions (p). This extensive power renders it now un- 
 necessary to consider many restrictions on the jurisdiction 
 which were formerly effective. 
 
 (i) Giffard v. Hart, 1 S. & L. («) Slanning v. Style, 3 P. Wms. 
 
 407, n. 336. 
 
 {k) Wright v. Simpson, 6 Ves. (o) Leigh v. Macaulay, 1 Y. & C. 
 
 734 ; and see Wooldridge v. Norris, Ch. 260 ; Bowsher v. Watkins, 1 R. 
 
 6 Eq. 410. & M. 277. 
 
 (I) Story, 845. {p) Supra, p. 651 ; Jud. Act, 1873, 
 
 (m) Rous V. Noble, 2 Vern. 249. s. 25, sub-s. 8.
 
 ACTIONS IN THE NATURE OF BILLS OF PEACE. G85 
 
 IV. Actions in the nature of Bills of Peace. 
 
 In some respects analogous to the remedy last con- 
 sidered is that formerly known as a bill of peace, and now 
 taking the form of an action of the same effect as the 
 former bill, 
 
 A bill of peace was one brought to establish and per- Nature of 
 petuate a right which from its nature might be controverted peace, 
 by different persons at different times, and by different 
 actions; or where separate attempts had already been 
 made to overthrow the same right, and justice required 
 that the party should be quieted in the right and relieved 
 from the annoyance of continual litigation. In such cases 
 equity, which is always opposed to multiplicity of suits, 
 has jurisdiction to interfere and put an end to the fruitless 
 litigation. 
 
 One class of cases in which this remedy is appropriate The right 
 consists of those in which one general right is to be established 
 established against a great number of persons, as where a agamst 
 person has possession and claims a right of fishery on a fendants. 
 river, and the riparian proprietors set up several adverse 
 rights (q), or where a lord seeks to restrain encroachments 
 by tenants under colour of a common right, or to establish 
 an enclosure which he has approved under the statute of 
 Merton (r). 
 
 Similar relief may be sought where many persons claim "The right 
 
 ^ n ^ • 1 • ^ j^ii*^^ many 
 
 or defend a right against one ; as where tenants seek against 
 to prevent the disturbance by a lord of a common '^"®- 
 right (s). 
 
 But in order to entitle a party to claim the assistance Conditions 
 of the Court on these grounds, it must be clear that there remedy, 
 is a right claimed which affects many persons, and a 
 
 (q) M. of York v. Pilkington, 1 Gardiner, 7 Ves. 305 ; D. of Norfolk 
 
 Atk. 282 ; Tenham v. Herbert, 2 ib. v. Myers, 4 Mad. 50, 117. 
 
 483. (s) Coni/ersv. Aberr/avenny,! Atk. 
 
 (r) 20 Hen. III. c. 4 ; Hanson v. 285 ; Phillips v. Hudson, 2 Ch. 243.
 
 686 REMEDIES ANALOGOUS TO IX.IUNCTIOX. 
 
 suitable number of parties in interest must be brought 
 before the Court (t) ; and it is to be observed that the Court 
 will not decree a perpetual injunction in contradiction of a 
 public right, such as a right to a highway or to a common 
 navigable river (u). On the one hand, the right in question 
 nu;st affect numerous parties ; on the other, it must not 
 affect the public at large. 
 Protec- Another class of cases for which a bill of peace was an 
 
 rights well apt remedy comprised those in which the plaintiff had after 
 at law.^ repeated trials established his legal right, but yet was 
 threatened with further litigation from new attempts to 
 controvert it. In such circumstances, the Court was wont 
 to grant a perpetual injunction to quiet the plaintiff's 
 possession, and to suppress future litigation (x). It would 
 not, however, interfere until the right had been satisfactorily 
 established at law ; but two trials was deemed a sufficient 
 determination of the right to warrant an injunction (y). 
 Rolfs Act. By 25 & 26 Vict. c. 42, the Court of Chancery was em- 
 powered to direct an issue, if necessary, to be tried at the 
 assizes or at nisi j>rM(S, or to itself decide the question of 
 J ad. Act law or fact; and since the Judicature Act the Courts of 
 law could themselves apply the remedy without requiring 
 the defendant to appear as a plaintiff in equity. We have 
 already seen that as regards the various divisions of the 
 High Court of Justice no one division can now restrain 
 proceedings in another. Each can order a staj'^ of its own 
 proceedings whenever there is an equitable claim to it. 
 
 V. Ne Exeat Regno, 
 
 Nature The writ of ne exeat regno was a prerogative writ, 
 
 an origin jgg^g^j ^^ prevent a person from leaving the realm. It 
 
 {t) Story, 857 ; Cowper v. Clerk, Ch. 261 ; 10 Mod. 1 ; 4 Bro. P. C. 
 
 3 P. Wms. 15. 373. 
 
 (h) Story, 858 ; Hilton v. Scar- (y) Devonshcr v. Neivenham., 2 
 
 borovrjh, 2 Eq. Ca. Ab. 171, S. '& L. 208 ; Leightmi v. L., 1 P. 
 
 (x) E. of Bath V. Shcrimn, Prec. Wms. 671.
 
 NE EXEAT REGNO. G87 
 
 was originally applied only for political objects and pur- o^ the 
 poses of state, and at present it is exercised for the protec- 
 tion of private rights with much caution and jealousy (0). 
 
 The writ ne exeat rec/no was as a rule only granted in Granted 
 
 '^ . . , . onlv for 
 
 respect of equitable debts, a plaintiff who had a legal claim eqviitable 
 being left to his legal remedy. But to this rule there °^°*^' 
 were two exceptions. 
 
 First, when alimony had been decreed to a wife the writ except in 
 
 . , cases of 
 
 was procurable to restrain the husband Irom evading the alimony, 
 obligation by leaving the realm (a). The alimony must, 
 however, have been actually decreed, and not appealed 
 from. The writ could not be obtained while the case was 
 still pending (5). 
 
 Secondly, where there was an admitted balance due and where 
 from the defendant to plaintiff, but the plaintiff claimed a admitted 
 larger sum, he might be assisted by the writ (c). This case balance 
 
 1 1 • 1 • 1 • n • i 1 • J • • 1 • , • t)ut larger 
 
 was brought withm the purview 01 equity by its jurisdiction sum is 
 in matters of account. claimed. 
 
 With respect to the equitable demands for wliich the Conditions 
 writ might be issued, they were required to be certain as ^g^^j^^ ^^" 
 to their nature, and actually paj^able, not contingent (d). 
 It must also have been a pecuniary demand, and not of the 
 nature of damages or any unliquidated claim (e). It need 
 not, however, have been directly created between the 
 parties ; thus the cestui que trust or obligee of a bond was 
 entitled to the writ against the obligor (/). 
 
 Such were the general conditions of the jurisdiction as 
 unaffected by legislation. At present it seems that its 
 scope is completely determined by the following statutes. 
 
 (1.) By the Debtors' Act, 1869 (a), which, with certain Debtors' 
 
 . . . \^'' ^ j^^^ I860, 
 
 exceptions, abolished imprisonment for debt, it was enacted 
 
 that in future no person should be arrested upon mesne 
 
 (2) Story, 1465-7. {d) Anon., 1 Atk. 521 ; Bico v. 
 
 (a) Read v. R., 1 Ch. Ca. 115 ; Gaidtier, 3 ib. 500. 
 
 Shaftoe V. S., 7 Ves. 71. (c) Etches v. Lance, 7 Ves. 417 ; 
 
 (6) Ibid.; Dawson v. D., 1 Ves. Cock v. Ravie, 6 ib. 283. 
 
 173. (/) Grant v. G., 3 Russ. 598 ; 
 
 (c) Jones V. Sampson, 8 Ves. 593 ; Leake v. L., 1 J. & W. 605. 
 
 Jones V. Alephsin, 16 Ves. 471. (y) 32 & 33 Vict. c. 62.
 
 088 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 process in any action, but that where the plaintitf in any 
 
 action in any of the Courts of law at Westminster in which 
 
 previously the defendant would have been liable to arrest, 
 
 proves at any time before final judgment by evidence on 
 
 oath to the satisfaction of the judge that the plaintiff has 
 
 good cause of action against the defendant to the amount 
 
 of £50, and that there is probable cause for believing that 
 
 the defendant is about to quit England, and that his 
 
 absence will materially prejudice the plaintiff in his action, 
 
 such judge may order the defendant to be arrested and 
 
 imprisoned for a period not exceeding six months, unless 
 
 he gives the prescribed security, not exceeding the amount 
 
 claimed in the action, that he will not go out of England 
 
 without the leave of the Court. 
 
 Effect of With respect to this enactment it has been held that it 
 the Act. . "^ , • o 
 
 has m effect confined the writ of ne exeat regno to cases 
 
 which come within its provisions (k), the reasoning being 
 that the jurisdiction of Chancery must follow that of law, 
 and the power of the Courts of law to arrest for legal 
 debts being by this statute restricted, the power of the 
 Courts of equity with respect to equitable debts was sub- 
 jected to a corresponding restriction. This argument does 
 not seem to have been resoited to in Sohey v. Sobey (i), 
 in which the writ was issued in the same manner as before 
 the statute (k). 
 
 Jud. Acts. (2.) Further, by the Judicature Acts, the distinction 
 between legal and equitable debts has disappeared, so that 
 the reasoning applied by the Master of Rolls in Drover 
 V. Beyer is now much stronger than it would have pre- 
 viously been. It is clear from this case, at any rate, that 
 the effect of the Judicature Acts has not been to extend 
 the remedy (I). 
 
 Abscond- (3.) It may here be further mentioned that by the 
 Absconding Debtors' Act, 1870 {m), power is conferred 
 
 (h) Drover v. Beyer, 13 Ch. D. 242. Ch. D. 866. 
 
 (i) 15 Eq. 200. (I) See Snell'.s Pples., p. 624. 
 
 (^•) And see Lees v. Patterson, 7 (m) 33 & 34 Vict. c. 76. 
 
 mg
 
 ACTIONS TO PERPETUATE TESTIMONY. G89 
 
 upon the Court of Bankruptcy to issue a similar writ under Debtors' 
 . . i ^ ^^.j. 1370 
 
 the conditions there prescribed, to prevent a debtor from 
 going abroad after the service upon him of a debtor's 
 summons under the Bankruptcy Act. 
 
 VI. Actions to perpetuate Testimony. 
 
 Circumstances often arise in which public justice requires Grounds of 
 that measures should be taken to perpetuate evidence of a ^jctio "^" 
 right which cannot be presently protected by judicial 
 decision. For instance, a person may have a claim to a 
 remainder, or he may be in actual possession of the 
 property in question : in neither case can he directly make 
 his right the subject of a judicial decision; and yet his 
 right may be dependent upon evidence which the laj^se of 
 time will weaken or perhaps destroy. In such circum- 
 stances it is in the highest degree necessary for him that 
 some measures should be taken to secure or perpetuate 
 this evidence, and so to protect him against some adverse 
 claimant Avho may be purposely delaying his suit with a 
 view to profit by the loss of the proofs of title. 
 
 Such cases strongly appealed to that principle of equity 
 which declares that it will not suffer a wronof without a 
 remedy. And yet the exercise of a jurisdiction thus to Objections 
 perpetuate testimony was evidently subject to the strong ^^'^''°' 
 objection that the depositions so taken were not published 
 until after the death of the witnesses. The evidence, there- 
 fore, was not given under the sanction of the legal penalties 
 attached to perjury. In consequence of the danger thus and conse- 
 attending the process, we find that the Courts of equity 1"*^"* . 
 
 o r ^ I J caution in 
 
 were careful only to grant relief of this kind in strong its exer- 
 cases, where a failure of justice would be otherwise seriously 
 threatened (?i). Assistance was refused if by any means 
 open to the plaintiff the whole matter could be at once 
 adjudicated upon (o). If, as in the illustrations above 
 
 (n) Angell v. ^., 1 S. & S. 83. (o) ElUct v. RouptU, 32 Beav. 299. 
 
 Y Y
 
 090 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 given, this was impossible, equity would exercise the neces- 
 sary jurisdiction, and take the requisite evidence (p). 
 Applicable It is immaterial as regards the exercise of the jurisdic- 
 kind of tion, whether the subject-matter in question is real or 
 property, personal estate or of the nature of a mere personal 
 demand, or whether the evidence to be used tends to the 
 proof of the plaintiff's title or is needed for defence (q). 
 Equity, however, will do nothing in vain, and it accordingly 
 will not interfere to support a right which is liable to be 
 immediately barred ; for instance, it will not entertain an 
 action of this nature by a remainderman against a tenant 
 in tail in possession, who can at any time bar the entail (r). 
 Expect- Formerly, moreover, a mere expectancy, such as that of an 
 heir-at-law, was not deemed sufficient to sustain a bill, though 
 5 & 6 Vict, a remote or contingent interest would do so (s). But 5 & 
 6 Vict. c. 69, provided for this case, and extended the 
 remedy by enacting that any person who would under the 
 circumstances alleged by him to exist become entitled upon 
 the happening of any future event to any honour, title, 
 dignity or office, or to any estate or interest in any pro- 
 perty, real or personal, the right or claim to which could 
 not by him be brought to trial before the happening of such 
 event, should be entitled to file a bill in Chancery, to per- 
 petuate any testimony which might be material for estab- 
 lishing such claim or right. The terras of this enactment, 
 Titles and it will be ob.served, extend the remedy to claims to titles 
 igni les. ^^ J dignities ; it was previously confined to cases in which 
 
 the right to some property was in dispute (t). 
 Bills for Actions in the nature of bills to perpetuate testimony 
 
 obsolete, would seem to have remained unaffected in principle by 
 the Judicature Acts ; bills for discovery, on the contrary, 
 which were formerly analogous in many respects thereto, 
 and which formed a conspicuous feature in equitable juris- 
 
 ip) Spencer v. Peek, 3 Eq. 415 ; 261. 
 Re Tayleur, 6 Ch. 416. (s) Ibid. 
 
 {q) Story, 1509; Suffolk v. Green, {t) Townshcnd Pecraqe Case, 10 CI. 
 
 1 Atk. 450. & F. 289 ; and see Campbell v. E. of 
 
 (r) Durdcif v. Fitzhardhuje, 6 Ves. Dalhousie, 1 L. E. H. L. (Sc.) 462.
 
 ACTIONS TO PERPETUATE TESTIMONY. 691 
 
 diction, have been rendered completely obsolete by the 
 present procedure. It has been, therefore, deemed unneces- 
 sary here to discuss them. A study of the Orders under 
 the Judicature Acts, in particular of Order XXXI., in any 
 of the recognised hand-books thereto, will supply ample 
 information as to the present means of attaining the ends 
 formerly sought by bill in Chancery. 
 
 Again, it is now scarcely necessary to do more than and also 
 mention the bills to take evidence de bene esse, which once ^^^^ ^^^ 
 occupied a useful and important place in the auxiliary 
 jurisdiction of equity. The purpose of these bills was to 
 take the testimony of persons resident abroad. They could 
 only be brought while an action was then depending: but 
 they were available as well for a person out of as for one 
 in possession ; in both these respects differing from bills to 
 perpetuate testimony. Ample powers of a similar nature 
 were, however, long ago conferred upon the Courts of 
 law (u), and at present such matters fall entirely within 
 the province of Procedure, and consequently beyond the 
 scope of this work. 
 
 («) 13 Geo. III. c. 63, s. 44 ; 1 Will IV. c, 22, s, 1, 
 
 Y Y 2
 
 INDEX. 
 
 ABANDONMENT 
 
 of lien, 274 
 
 ABATEIMENT 
 
 of legacies, 500 
 
 specific performance with, 616 
 
 ABSCONDING DEBTOR, 
 
 He exeat regno, 688 
 
 ABSOLUTE CONVEYANCE, 
 
 mortgage compared with, 219, 221 
 
 ABSTRACT 
 
 of title, effect of delay in delivering, 609 
 
 ACCIDENT, 198—204 
 
 annuities reduced by, 204 
 apprenticeship, 203 
 
 contracts for personal service, 199, 203 
 definition of, 198 
 
 destruction of deeds, &c., 200, 202 — 3 
 demised premises, 201 
 subject-matter of contract, 199 
 equal equity, no relief, 201 
 executor, remedy in case of, 204, 628 
 indemnity in cases of, 202 
 jurisdiction in cases of, 198 
 lost bonds, 200, 202 
 deeds, 200, 202 
 
 negotiable instruments, 200, 203 
 negligence, effect of, 201 
 payments lay executors, 203, 627 — 8 
 positive contracts, 201 
 remedy in equity, 198, 203 
 
 at law, 199 
 trust property, to, 108, 628 
 vis major, 199 
 warranty, 199
 
 694 INDEX. 
 
 ACCOUNT, 
 
 action iu equity, 469 
 
 at law, 4(58 
 apportionment, 480—1 ; see AFroRxioNMENT. 
 appropriation of payments, 473—7 ; see AppRorRiATioN of Pay- 
 ments. 
 contribution, 481 ; see Contribution, Surety. 
 copyright suits, in, 672 
 defences to action for, 482 — 3 
 
 laches, 483 
 
 Limitations, Statute of, 483 
 
 settled account, 482 
 election, in cases of, 420 
 equitable claims in, 469, 473, 478 
 
 jurisdiction, 470 
 
 procedure, 469 
 falsify, liberty to, 483 
 fiduciary relations, 470 
 foreign rents, 12 
 fraud, effect of, 483 
 guardians, of, 391 
 
 injunction, incident to, 470, 646, 653, 667, 672, 674 
 Judicature Acts, effect of, 470 
 jurisdiction founded on, 471 
 Limitations, Statute of, 483 
 mistake, 483 
 
 mortgagor and mortgagee, 236 — 9; see ^Mortgagee. 
 partnership, of, 545, 552 
 patent suits, in, 667 
 principal and agent, 470 
 re-opening, 482 
 set-off, 477 — 80 ; see Set-off. 
 settled, 480 
 
 solicitor and client, between, 483 
 surcharge, liberty to, 483 
 trade marks suits, in, 674 
 trespass, 653 
 
 trustee and cestui que trust, 100, 115, 121—2, 470, 483 
 waste, 646 — 50 ; see Waste. 
 
 ACCOUNTANT'S LIEN, 265 
 
 ACKNOWLEDGMENT. See Married Woman. 
 mortgage of, 225 — 6, 244 
 
 ACQUIESCENCE, 
 
 breach of trust by co-trustee, 117 
 
 generally, 123 
 constructive trusts, effect in, 91 
 copyright, by owner of, 671 
 creditors, by, in payments by executor, 294 
 
 in trust deed, 57
 
 INDEX. 695 
 
 ACQUIESCENCE— con<(Hwerf. 
 election, effect in, 421 
 evidence of, 92 
 fraud, in, 91, 149 
 improvements, in, by mortgagor, 239 
 
 by owner, 168 
 legatees, in pa3'^ments by executor, 294 
 patentee, by, 667 
 req^uisites of, 92, 149 
 restraint on anticipation, effect in, 353 
 resulting trust rebutted by, 69 
 specific performance, in actions for, 575 
 trade mark, by owner of, 673 
 trespass, in actions of, 653 
 vigilantibus twn dormientibus, &c. ; see Maxims. 
 
 ACTIO IN PERSONAM, 10, 13 
 in rem, 10 
 
 ACTS OF PARLIAMENT, 
 
 injunction against procuring, 631 
 notice of, 285 
 
 private, and public distinguished, 179, 285 
 trusts not affected by, 83 
 
 ADEMPTION, 
 
 legacies by portions, of, 445 — 50 
 
 leaning against double portions, 446 
 
 locus 2)arentis, 447 
 
 occasional gifts, 450 
 
 presumption, how repelled, 448, 450 
 
 pro tanto, 449 
 - residuary bequest, 449 
 specific legacies, of, 517, 523 — 5 
 
 change or removal of subject-matter, 524 
 
 insanity of testator, 525 
 
 Wills' Act, effect of, 525 
 
 ADMINISTRATION OF ASSETS, 4S4— 515 
 assets, 484—9; see Assets. 
 creditors, rights of, 496 
 debts, priority of, 489 
 
 crown, 489 
 
 judgments, 489, 490 
 
 recognisances, 490 
 
 secured, 494 
 
 simple contracts, 491, 493 
 
 specialty, 490, 493 
 
 statutes, 490 
 executors, rights and liabilities of, 491 — 2 
 Judicature Act, effect of, 493 
 marshalling assets, 509 — 14 ; see Marshalling. 
 
 securities, 514 ; see Marshalling. 
 mortgage debts, 502 — 9 
 
 adoption of debt, 504 — 5
 
 69G INDEX. 
 
 ADMINISTRATION OF ASS'ETS— continued. 
 iiiort^'iij,'e debts, 
 
 Locke King's Act, 272, 506 
 
 mortgaged estate, when lialile, 503, 504, 506 
 
 personalty, when liable, 503, 507 
 order of, 
 
 appointed property, 502 
 
 charge of debts, 500 
 
 devise, residuary, specific, 500 
 
 lands charged, 499 
 descended, 499 
 devised on trust for payment, 499 
 
 legacies, general, specific, 500 
 
 paraphernalia, 501 
 partnership, of, 547 
 
 ADMINISTRATOR. And see Executor. 
 
 cum testamento annexo, 680 
 
 ADVANCEMENT, DOCTRINE OF, 
 child, in favour of, 71 
 evidence, rules of, 74 — 5 
 locus parentis, 71 
 rebiittiug cii'cum stances, 73 
 wife, in favour of, 72 
 
 ADVANCEMENT OF INFANT 
 
 distinguished from maintenance, 401 
 power of, 401 
 without a power, 402 
 
 ADVOWSON, 
 
 mortgage of, foreclosure, 241 
 partition of, 558 
 
 AGENCY, 
 
 contract of ; specific performance, 588 
 
 AGENT, 
 
 account against, 470 
 
 notice to, effect of, 284 
 
 purchase Tjy, 95 — 6 
 
 renewal of lease by, 84 
 
 secret profit, 132 
 
 trustees may employ, when, 90, 127 
 
 AGREEMENTS. See also Contracts. 
 against public policy, 165, 313 
 assigning pensions, 165, 313 
 buying offices, 165 
 champerty, 165, 313 
 maintenance, 165, 313 
 marriage, respecting, 163 
 restraint of trade, 164
 
 INDEX. 01)7 
 
 ALIEN 
 
 cestui que trust, 26 
 trustee, 25 
 
 ALIENATION. See also Separate Estate. 
 lands, of, restrictious at law, 19 
 married woman, by, 341 — 7 
 wife's property, of, 373 — 6 
 
 ALLOWANCES 
 
 to co-owiier, 85 — 6, 100 
 to mortgagee, 238 
 
 ANCIENT LIGHTS, 656 
 
 ANNUITIES, 
 
 accidental reduction of, 204 
 administration, in, 500 
 executor, given to, for trouble, 128 
 lien of vendor for, 270, 275 
 purchase-money, application of, 296 
 valuation of, 500 
 
 ANTE-NUPTIAL AGREEMENT, 
 
 effect of written, 60 
 
 settlement rectified by, when, 190 
 
 ANTICIPATION, 
 
 restraint on, 348 — 53 ; see Separate Estate. 
 
 APPARENT POSSESSION, 231, 233 
 
 APPLICATION 
 
 of purchase money, 293 — 304 ; see Purchase Money. 
 
 APPOINTMENT, 
 
 contract between appointees, 173 
 defective, 192 ; see Powers. 
 fraudulent, 169 — 74 ; see Powers 
 fund appointed, in administration, 502 
 illusory, 174 
 
 APPORTIONMENT 
 
 Act, 1870... 481 
 
 apprentice, premium of, 203, 480 
 
 divisible contracts, 481 
 
 maintenance, 481 
 
 rents, 481 
 
 APPRENTICE, 
 
 premium apportioned, 203, 480
 
 698 INDEX. 
 
 APPROPRIATION OF PAYMENTS, 
 
 creditor's option, 475 
 debtor's option, 474 
 general effect, 477 
 illegal debts, 475 
 presumption of law, 476 
 Eoman law compared, 474 
 statute barred debt, 475 
 
 ARBITRATION, 
 
 agreements to refer ; specific performance, 589 
 
 ARBITRATOR, 
 
 purchase of claim by, 98 
 
 ARCHWAY, 
 
 notice of right of way, 283 
 
 specific performance of contract to build, 587 
 
 ARREARS, 
 
 pin-money, 359 
 
 settlement out of arrears of income, 371 
 
 ARTICLES, MARRIAGE, 
 
 executory trusts in, 42 — 4 
 settlement rectified by, 190 
 
 ARTISAN'S LIEN, 265 
 
 ASSETS. And see Administration. 
 definition, 484 
 descent, by, 485 
 equitable, 486 — 7 
 legal, 486 
 
 marshalling, 509—14 ; see Marshalling. 
 real, 485 
 statutory, 485 
 
 ASSIGNMENT, 
 
 causes of, to divisions of the High Court, 2 
 
 champerty, 165, 313 
 
 choses in action, 305, 307, 308 
 
 bankruptcy, effect of, 310 
 
 bills of exchange and of lading, 305 
 
 bonds, 305 
 
 communication to creditor, 308 
 
 illegal, 313 
 
 Jud. Act, effect of, 312 
 
 laches, 312
 
 IiNDEX. 009 
 
 ASSIGNMENT— coHiiTiwed 
 
 clioses in action, 
 notes, 305 
 notice, 309 
 pendente lite, 314 
 pensions, 313 
 
 policies of assurance, 56, 305 
 reputed ownership, 310 
 subject to equities, 311 
 when complete, 308 
 
 expectancies, 306 
 
 future acquired property, 306 
 
 maintenance, 165, 313 
 
 mortgages, 221 — 2 
 
 non-existent property, 306 
 
 possibilities, 305 — 6 
 
 ATTORNEY. See Solicitor. 
 ATTORNMENT CLAUSE, 239 
 
 AUCTION, 
 
 defect of title, 615 
 sale by, Stat, of Frauds, 595 
 specific performance, 595 
 trustees purchase at, 90 
 
 AUCTIONEER, 
 
 executor, profit by, 131 
 purchase of property by, 95 
 
 AWARD, 
 
 specific performance of, 589 
 
 BANK, 
 
 deposit by trustees in, 108, 109 
 
 BANKER, 
 
 lien of, 266 
 
 BANKRUPT, BANKRUPTCY, 
 
 administration of estate of, 488, 493 — 5 
 consolidation against trustee in, 254 
 equitable mortgage, 261 
 fraudulent preference, 240 
 injunctions by Court of, 626 
 partner, of, 547, 552 
 reputed ownership, 310 
 surety, rights of, in, 332 
 trustee bankrupt, 25, 117, 122 
 
 in bankruptcy, purchase from, 90 
 by, 94 
 voluntary settlements, how aflected by, 57-
 
 700 INDEX. 
 
 BAKIIISTER. See Counsel. 
 
 BENEFIT BUILDING SOCIETIES, 
 
 statutory peiuilties, relict' against, qiutie, 212 
 
 BEQUEST. See Legacy. 
 
 BILL OF EXCHANGE, 
 
 assignment of, 305 
 
 injunction against negotiation, 629 
 
 loss of, remedy, 200, 203 
 
 BILL OF LADING, 
 
 assignment of, 305 
 
 BILL OF PEACE, 685—6 
 
 BILL OF SALE 
 
 Acts, 229 
 
 actual possession, 231, 233 
 apparent possession, 231, 233 
 fixtures, 231, 232—3 
 growing crops, 231, 232 — 3 
 registration, 230, 231 
 reputed ownership, 310 
 
 BOND, 
 
 administration, place in, 485, 488, 490, 493 — 6 
 assignment of, generally, 305 
 
 to surety, 331 
 destroyed, remedy, 200, 202 
 lost, remedy, 200, 202 
 penalty relieved against, 206 
 tacking, 248, 252 
 
 BOUNDARIES, 
 
 commission to ascertain, 554, 568 
 foreign lands, 12, 568 
 jvirisdiction to settle, 554, 568 — 9 
 
 BREACH OF TRUST. And see Trustee. 
 acquiescence in, 91, 122, 123 
 
 agreements involving, not specifically enforced, 573 
 co-trustee, by, liability for, 109, 117, 119; see TRUbTEE. 
 fraudulent, indictable, 123 
 Limitations, Statute of, 122 
 married woman, by, 344 
 purchaser party to, 298 
 simple contract debt created by, 491 
 
 BROKER'S LIEN, 266
 
 INDEX. 701 
 
 BUILDING, 
 
 agreeineiit to build, specific performance, 587 
 covenant to build, forfeiture on breach, 211, 213 
 injunction against, when, 652 
 society ; see Benefit B. S. 
 
 CANCELLATION OF DOCUMENTS, 675—9 
 fraud of plaintiff, effect of, 678 
 gaming securities, 678 
 valid instruments, 678 
 void instruments, 186, 676 
 voidable instruments, 677 
 voluntary instruments, 679 
 
 CATCHING BARGAINS, 144. See Fraud. 
 
 CESTUI QUE TRUST, 
 
 acquiescence by, 69, 91, 123 
 
 following trust funds, 116, 290 
 
 pixrchase from, 88 — 100; see Trusts, Constructive. 
 
 release by, 123 
 
 who may be, 26 — 7 
 
 CHAMPERTY, 165, 314 
 
 CHARGE, 
 
 apportionment of, 481 
 debts, on realty, 
 
 administration, in, 486, 499 
 
 contrasted with devise on trust for debts, 67 
 
 effect on purchaser, 299 
 
 equitable assets, 486 
 
 sale by executors, 298 
 separate estate, 343 — 6 ; see Separate Estate. 
 
 CHARITIES, CHARITABLE TRUSTS, 
 
 cy-pr^s, doctrine of, 28 
 
 defective assurances remedied, 30 
 
 favoured in equity, 28 
 
 lapse prevented, 28 
 
 marshalling not allowed for, 30, 514 
 
 particular distinguished from general design, 29 
 
 resulting trusts in gifts to, 66 — 7 
 
 what are charitable objects, 27 
 
 CHATTELS, 
 
 contracts respecting, 581 — 7 ; see Specific Performance. 
 
 donatio mortis causa of, 529 
 
 gift of, 49 
 
 married woman's, husband's rights respecting, 334 
 
 mortgage of, 228 — 33 ; see Bill of Sale. 
 
 pledge of, 229—30 
 
 trust of, how created, 33 
 
 voluntary settlement of, 60
 
 702 INDEX. 
 
 CHILDREN. See Advancement, Parent and Child, Infant. 
 
 CHOSES IN ACTION, 
 
 assignment ot, .305 — 8 ; see Assignment. 
 dunatio murtis causa, .')29 — 30 
 married women's, husband's rights, 334 
 reduction in possession, 380 
 
 COLONIES, 
 
 lands in, suits respecting, 12, 13 
 
 trusts of, 23 
 laws of, 179 
 
 COMMISSION, 
 
 boundaries, 554, 568 
 
 examination of married woman, 372 
 
 partition, 554, 558 
 
 COMPANY, 
 
 Acts referred to, 95, 535 
 
 contracts of, specific perfonnance, 579 
 
 directors, office vacated, 95 
 
 profits beyond salary not allowed, 132 
 
 purchases by, 94 
 distinguished from partnership, 534 
 injunctions against, 652, 660 
 nuisances by, 660 
 promoters, secret profits by, 95 
 shares, agreements to take, specific performance, 585 
 
 sale of, 585 
 trespass by, 652 
 winding up, inixinctions in, 629 
 
 rules in, 495 
 
 COMPENSATION, 
 
 election, in cases of, 409, 4l2 
 
 forfeiture instead of, 210 
 
 penalties, 210, 213 
 
 .specific performance with, 611 — 2, 613, 615, 617 
 
 COMPOSITION, 
 
 debts by trustees, 102 
 sureties, with, 326 
 
 rights of, in case of, 324 
 
 COMPOUND INTEREST, 
 
 HPOLL\D IJNTEKKST, 
 
 when charged against mortgagor, 236 m 
 
 trustee, 115, 126 ?
 
 INDEX. 703 
 
 COMPROMISE, 
 
 debt of, by executors and trustees, 102 
 family settlements, 182 
 married woman, by, 353 
 
 COMPULSORY POWERS, 
 
 conversion under, 428 
 injunction against abuse of, 652, 660 
 purchase money of leaseholds taken, 86 
 specific performance of agreements, 579 
 
 CONCEALMENT, 
 
 active, effect of, 141 
 composition deeds, in, 143 
 insurance, in, 143 
 family settlements, 143 
 latent delects of, 142 
 married woman, by, 167 
 suretyshiji, in, 143, 319 
 supjrressio veri, effects, 141 — 2 
 third person, from, 166 — 9 
 trustee, by, 123 
 
 CONDITIONAL SALE 
 
 compared with mortgage, 219, 221 
 
 CONDITIONS IN RESTRAINT OF MARRIAGE. See Marriage, 
 160—2 
 
 CONFIDENTIAL RELATIONS. See Fiduciary. 
 
 CONFIRMATION, 
 
 fraudulent transactions, 149 
 title, of, 168 
 
 CONSENT, 
 
 marriage of infant, 395 — 6 
 married woman, of, 372, 374 
 
 CONSIDERATION OF MARRIAGE, 59 
 
 CONSOLIDATION. See Mortgage, 253—5 
 
 CONSTRUCTIVE 
 fraud, 137 
 
 notice, 280 — 4 ; see Notice, 
 trust, 79—100; see Trusst. 
 
 CONTEMPT OF COURT, 
 marriage of ward, 395
 
 704 INDEX. 
 
 CONTINGENT INTERESTS, 
 
 assiguineiit of", 305 — 7 
 maintenance of infant out of, 398 
 
 CONTRACT. See Agreement, Settlement. 
 drunkenness, effect of, 151, 575 
 duress, 151 
 fraud, 150—2 
 illegal, 162—4 
 infant, of, 152 
 influence testators, to, 164 
 lunatic, 151 
 marriage brokage, 163 
 married woman, of, 153 
 misrepresentation, effect of, 150 
 mistake, 176 — 191 ; see Mistake. 
 sailors, with, 153 
 
 rescission of ; see Fraud, Mistake. 
 restraint of trade, 164 
 specific performance, when decreed, 572, 579 — 90 ; see Specific 
 
 Performance. 
 trustee and cestui que trust, purchases, 88 — 100 ; see Trusts, Con- 
 structive. 
 remuneration of trustee, 129 ; see Trustee. 
 varying on condition, penalty distinguished, 212 
 
 CONTRIBUTION, 
 
 charge on lauds, 482 
 
 partition, in, 482 
 
 suretyship, in, 317, 327 — 9 ; see Surety. 
 
 trustees, between, 122 
 
 CONVERSION, 
 
 bankruptcy in case of, 427, 431 
 character of converted property, 430 
 
 unconverted, 438 
 Court, by the, effect of, 427 
 discretionary power of, 426 
 failure of purposes of, effect of, 433 
 
 partial failure, 434 — 5 
 
 total, 433 
 
 where conversion by Court, 437 
 heir, when excluded, 436 
 how effected, 424—8 
 infant's property, 427 
 intention, express or implied, 424 
 land into money, effects of, 429 
 lapsed land, descends to heir, 435, 438 
 lunatic's property, 427 
 married woman, by, 428 
 money into land, eft'ect of, 428 — 9 
 mortgages, 426 
 optional powers of sale, 425
 
 INDEX. 70; 
 
 CONVERSION— raHi/nwed 
 partial, 426 
 
 partnersliip property, of, 542 
 principle of, 423 
 
 purchase under compulsory powers, 428 
 reconversion, 439 — 43 ; see Reconversion. 
 time from which it takes place, 
 
 bankruptcy, in, 431 
 
 compulsory sales, 432 
 
 generally, 431 — 3 
 
 options to purchase, 432 
 
 COPYHOLDS, 
 
 defective surrender aided, 30, 193 
 partition of, 557 
 trusts of, Statute of Frauds, 33 
 Statute of Uses, 21 
 
 COPYRIGHT, 
 
 account in cases of, 672 
 
 action, when maintainable, 671 
 
 designs of, 670 
 
 discovery in cases of, 671 
 
 dramatic, 669 
 
 infringement generally, 669 
 
 injunction, nature of, 671 
 
 lectures in, 668 
 
 letters, private, 669 
 
 literary, 667 
 
 musical, 669 
 
 origin of the right, 667 
 
 piracy, how decided, 672 
 
 prints, 670 
 
 registration of, 671 
 
 CORPORATION. &e Charity, Company. 
 cestui que trust, 26 
 trustee, 24 
 
 COSTS, 
 
 lien of solicitor for, 267 
 mortgagor and mortgagee, 239, 247 
 partition, actions in, 566 — 7 
 tacking of, 247 
 town agent of solicitor, 132 
 trustee of and against, 100, 126 — 7 
 
 CO-TRUSTEE. And see Trustee. 
 acquiescence of, 117 
 contribution from, 122 
 fraud of, 117 
 
 Z Z
 
 706 INDEX. 
 
 CO-TRUSTEE— con</« Med. 
 indemiiitv clauses, 121 
 Hability for, 116—122 
 negligence of, 117 
 receipts of, liability for, 118—20 
 
 C0X7NSEL, 
 
 constructive trust, purchase by, 98 
 
 gift to, 156 
 
 notice to, effect of, 284 
 
 COVENANT. See Ageeemext, Contr.\ct, Forfeitcke. 
 effect in mortgage, 244 
 not to sue, surety, 325, 326 
 
 CREDITORS, 
 
 administration ; see Administratiox, Debts. 
 
 marshalling ; see Marshaxlisg. 
 
 rights of creditors in, 496 
 secured creditors, 494 
 partnership 
 
 dissolution, rights of, in, 551 
 
 joint and several liability of partners, 547 
 trust deed for, 61 — 3 
 
 communication to creditors, 62 
 
 claim under, Tvhen barred, 63 
 
 revocable, when, 62 
 voluntary settlement void against, 56, 60 
 
 acquiescence in, 57 
 
 CRIME, 
 
 no injunction against, 661 
 
 CRIMINAL PROCEEDINGS, 
 no injunction against, 632 
 
 CROWN, 
 
 bona vacantia, right to, 130 
 
 cestui que trust, 26 
 
 debts to, place in administration, 489 
 
 jurisdiction as to lunatics, 403 
 
 trustee, 24 
 
 CURTESY, 
 
 converted money, in, 429 
 
 equity to settlement does not affect, 369 
 
 separate estate, in, 343 
 
 CUSTODY, 
 
 deeds, of, 679 ; see Equitable Mortgage. 
 infants, of, .3«7— 9
 
 INDEX. 707 
 
 CY-PRES, DOCTRINE OF, 
 charitable trusts, 28 — 30 
 executory trusts, 48 
 
 DAMAGES, 
 
 inquiry as to, incident to injunction, Cairns' Act, 576 — 7 
 patent suits, 667 
 trespass, 653 
 
 DE BENE ESSE, 
 bills, 691 
 
 DEBTS, 
 
 administration, priority in, 489 — 94; see Administration. 
 assignment of, 305 — 10 ; see Assignment, Chose in Action. 
 mortgage, payment of, 502 — 9 ; see Administration, Mortgage 
 
 Debts. 
 purchaser, when bound to see payment of, 295 — 6 
 satisfaction of, 458 — 61 ; see Satisfaction. 
 
 DECREE. See Judgment. 
 
 DEED, 
 
 acknowledgment by married woman, 342, 374 — 6 
 
 cancellation, 675 — 9 
 
 delivery up, 675 — 9 
 
 deposit of, 257— 64 ; see Equitable Mortgage. 
 
 inquiry for, 273 
 
 loss of, remedy, 200, 202 
 
 mistake, execution by, 184 
 
 expression in, 188 
 
 of law, 180 
 notice of, is notice of contents, 283 
 possession of, notice, 281 
 rectification of, settlements, 189 — 90 
 
 voluntary deeds, 191 
 
 wills, 191—2 
 i^egistration ; see Bill of Sale. 
 
 deposit of register, 259 
 
 notice, whether, 279, 286 
 
 DEFECTIVE 
 
 conveyances to charities, 30 
 execution, 192 — 7 ; see Powers. 
 
 DELAY. See Acquiescence. 
 
 z z 2
 
 708 INDEX. 
 
 DELIVERY, 
 
 donatio mortis causa, 528 
 
 gift of chattL'ls, 49 
 
 specific delivery of chattels, specific performance, 584 
 
 deeds, specific performance, 584 
 up of instruments, 675 — 9 ; see Cancellation. 
 
 pirated copies, 672 
 
 DEMONSTRATIVE LEGACY, 525. ^^ee Legacy. 
 
 DEPOSIT OF DEEDS, 257. See Equitable Mortgage. 
 
 DEVASTAVIT 
 
 by married woman, 118 
 
 DEVISE. See Administration, Purchase-Money. 
 
 DIRECTORS, 94—5, 132, 585. See Company. 
 
 DISCOVERY, 
 
 accident, in cases of, 202 
 
 copyright actions in, 671 
 
 patent actions in, 666 
 
 special jurisdiction as to, abolished, 3, 691 
 
 DISSOLUTION OF PARTNERSHIP, 5i9— 552. See Partnership. 
 
 DISTRESS. 
 
 mortgage, attornment, 240 
 
 DISTRINGAS, 311 
 
 DONATIO INTER VIVOS. 5ce Gift. 
 
 DONATIO MORTIS CAUSA, 
 cheque, 529 
 conditions of, 528 
 definition, 527 
 delivery necessary, 528 
 imperfect, creates no trust, 530 
 legacy compared with, 532 
 Roman law comjiared, 528 
 trust created by, 530 
 what may be subject of, 529 
 
 DOWER, 
 
 election as to, 416 — 7 
 
 money converted into land, out of, 429 
 
 partition by dowress, 556 
 
 DRAMATIC COPYRIGHT, 669
 
 INDEX. 70.') 
 
 DRUNKENNESS, 
 
 contracts, how affected, 151 
 
 custody of infants, 389 
 
 partnership dissolved for, 550 
 
 specific performance actions, effect in, 575 
 
 DURESS, 
 
 contracts made under, 151 
 gifts made under, 158 
 
 DUTY, 
 
 legacy, land converted, 429 
 probate, land converted, 429 
 succession, money converted, 429 
 trustee of ; see Trustee. 
 
 EASEMENT, 
 
 light and air, 656 — 7 
 support of buildings, 658 
 water rights, 659 
 
 EAST INDIA STOCK, 
 investment in, 113 — 4 
 
 ECCLESIASTICAL LAW, 
 
 as to legacies, 160, 513, 527 
 
 EDUCATION 
 
 of infant, 393—4, 397—9 
 
 EJECTMENT, 
 
 mortgagee, by, 239 
 
 ELECTION, 
 
 account may be required, 420 
 
 acquiescence, 421 
 
 appointments under powers, 412, 414 — 6 
 
 claims arising in one instrument, 412 
 
 compensation not forfeiture, 409 — 12 
 
 conditions of, generally, 410 — 11 
 
 debts, not applicable to, 413 
 
 derivative interests, 419 
 
 devise to co-owner, 420 
 
 dower as to, 415 
 
 effects, generally, 421 
 
 evidence of intention, 411 
 
 forfeiture, not incurred, 409 — 10 
 
 general principle, 407 — lo 
 
 heir, by, 418
 
 710 INDEX. 
 
 ELECTION— coHitH ued. 
 how effected, 420 
 imperfect wills, 418 — 9 
 infants, by, 421 
 
 mamed women, by, 353, 420, 422 
 onerous bequests, 413 
 partial interests, 411 
 perpetuities, rule against, 416 
 powers, under, 412, 414 — 6 
 qualified election, 419 
 remaindermen not bound, 421 
 Roman law compared, 408 
 Wills' Act, effect of, 418 
 
 EQUITABLE 
 
 assets, 486 — 7 
 
 assignment ; see Assignment. 
 jurisdiction ; see Jurisdiction. 
 lien ; see Lien. 
 
 EQUITABLE MORTaAGE, 
 
 agreement for mortgage, 256 
 Bankruptcy Act, effect of, 264 
 classification, 256 
 charge, by, 257 
 covenant, by, 257 
 deposit of deeds, by, 
 
 after-acquired property, 261 
 
 against whom effective, 262 
 
 agreement for lease, 258 
 
 bankruptcy of depositor, 261 
 
 certificate of registry, 259 
 shares, 258 
 
 copyhokls ; Court rolls, 258 
 
 covenants in leases, 263 
 
 creation of charge generally, 258 
 
 crown, against, 262 
 
 debts secvired by, 262 
 
 extension of security, 263 
 
 fixtures, how affected, 261 
 
 interest, 262 
 
 judgment creditor, 262 
 
 leases, 258, 263 
 
 memorandum, effect of, 260, 261 
 
 parol evidence, 259, 263 
 
 partial deposit, 258 
 
 policy of insurance, 258 
 
 priority of incumbrances, 245, 263, 278 
 
 property affected by, 260 
 
 receipt for purchase-money, 258 
 
 register of ship, 258 
 
 registry lands, 259 
 
 subject to equities, 263 
 
 trustee in bankruptcy, against, 262
 
 INDEX. 7 1 1 
 
 EQUITABLE MORTGAGE— confmued. 
 
 deposit of deeds, by, 
 
 volunteer, against, 262 
 
 with different creditors, 258 
 
 with tlaird person, 259 
 equity of redemption, 245, 257, 278 
 foreclosiu'e of, 264 
 mandate, by, 256 
 receiver, 264 
 remedies applicable, 264 
 sale, 264 
 
 EQUITY 
 
 distinguished from law, 9 — 16 
 jurisdiction ; see Jurisdiction. 
 maxims of ; see Maxims. 
 meaning of, 7 — 9 
 to a settlement, 362 — 80 ; see Married Woman. 
 
 EVIDENCE, 
 
 accident of, in equity, 189 
 
 contribution between sureties, excluding, 329 
 
 de bene esse, 691 
 
 equitable mortgage by deposit, 
 
 agreement, of, 258 
 
 excluded by, 259 
 
 security extended to subsequent advances, 262 
 future creditors, 263 
 fraud, of, in equity, 189 
 
 joint piu'chase, intention to hold severally, 78 
 meaning of general words, as to, 189 
 mistake, of, in equity, 189 
 mortgage, to prove transaction to be, 219 
 perpetuate testimony, actions to, 689 
 presumption of advancement, 
 
 rebutted by parol, when, 74, 75 
 resulting trusts rebutted by parol, 67 — 9 
 
 express trust proved, 69 
 
 intention of advancement, 69 
 
 trust rebutted by parol, as to payment of purchase-money, 
 67, 69 
 satisfaction of debts, presumption as to, 461 
 
 legacies by legacies, 456 — 7 
 
 portions, presumption rebutted, 453 — 4 
 secret trusts, as to, 35 
 specific legacy, as to, 523 
 specific performance, 
 
 parol variations, when a<lmitted, 599 — 600 
 when not so, 601 
 
 waiver of contract, 602 
 Statute of Frauds, required by, 33, 591, 599 
 undue influence, of, 158 
 will, to construe, intrinsic ev., 411 
 
 EXAMINATION 
 
 of married woman, 372, 374
 
 712 INDEX. 
 
 EXECUTED AND EXECUTORY TRUSTS, 39—49. See Trusts. 
 
 EXECUTION DEFECTIVE. See Powers. 
 
 EXECUTOR. And see Administration, Trust, Trustee. 
 accident, protected against loss Ijy, 203, G28 
 annuity for trouble, when ceases, 128 
 assent to legacies required, 680 
 charitable trust, lapse prevented, 28 
 compounding debts, 102 
 custody of trust property, 108 — 10 
 devastavit Ijy e.\ecutrix, 118 
 donatio moi'tis causa, no assent needed, 532 
 duties of, 
 
 collection of debts, 102 
 money in trade, 102 
 
 converting perishable property, 103 — 7 
 reversionary property, 103 — 7 
 injunctions against, 628 
 
 protecting, 203, 628 
 interest payable by, 115 
 investments, 110 — 16 ; see Investment. 
 liability for co-executor, 117, 119 — 20 
 
 to creditors, 491 
 mortgage debt vests in, 221 
 payments to ; see Purchaser 
 power of sale, 299, 302—4 
 preference, power of, 491 
 protection from liability, 492 
 purchase of trust property, 93 
 receipts, power to give, 294 
 release of debts by, 102 
 relief quia timet against, 683 
 remuneration of, 125 — 131 
 renewal oH leases by, 81 
 retainer, 491 
 tacking against, 248 
 trustees of residue, 130 
 
 EXONERATION 
 
 of mortgaged estate, 504, 507 
 
 personalty, 497, 503 ; see Administration, Mortgage Debt. 
 
 EXPECTANCY, 
 
 assignment of, 306 
 
 EXPRESS TRUSTS. See Trusts. 
 
 FACTOR'S LIEN, 266 
 
 FALSIFYING AND SURCHxVR(;iNG, 483
 
 INDEX. 713 
 
 FAMILY ARRANGEMENT, 
 favoured in equity, 149, 182 
 fraud iu, 143, 149, 182 
 mistake in, 183 
 mortgage by way of, 220 
 specific performance of, 596 
 
 FEME COVERT. See Married Woman. 
 
 FID EI COM MISS A, 
 
 trusts compared with, 18, 19 
 
 FIDUCIARY RELATIONS, 
 
 contracts between persons in, 99 
 gifts between persons in, 157 
 
 FIXTURES, 
 
 equitable mortgage of, 261 
 in bill of sale, 231, 232 
 
 FORECLOSURE, 240—3, 264 ; see Mortgage, Equitable Mortgage. 
 
 FOREIGN 
 
 infant, guardian of, 395 
 
 lands, jurisdiction respecting, 12, 13 
 
 trusts of, 23 
 law, mistakes of, 179 
 suits, injunction against, 625, 630 
 
 FORFEITURE, 
 
 relief against, 205 — 13 
 compensation, 210 
 covenant to build, 210, 213 
 
 in.sure, 208, 213 
 
 pay rent, 207, 213 
 
 repair, 210, 213 
 lease, 210, 213 
 mortgaged estate, 208, 216 
 shares of, for non-payment of calls, 211 
 surprise, effect of, 210 
 
 FRAUD, 
 
 acquiescence in, 149 
 
 actual, 138 
 
 catching bargains, 144 
 
 classification, 136 — 8 
 
 concealment, 141 ; and see Concealment. 
 
 active, 141 
 
 composition deeds, 143 
 
 deception of third person, 166 
 
 defects, patent and latent, 142 
 
 family settlements, 143 
 
 insurance, 143 
 
 suretyship, 143
 
 714 INDEX. 
 
 TnAVD—conthmed. 
 
 confirmation of, 149 
 
 constructive, 137 
 
 contracts ; see Contracts. 
 
 contrast of law and equity, 135 
 
 deception of tliird persons, 166 
 
 family compromises, 143, 149, 182 
 
 gifts ; see Gifts. 
 
 inadequate consideration, 145 — 6 
 
 infant, of, 152 
 
 marital rights, 382—5 ; see Marital Rights. 
 
 marriage ; see Marriage. 
 
 married woman, of, 168, 344, 376 ; see Married Woman, 
 
 misrepresentation, 139 — 141, 166 ; see Misrepresentation. 
 
 mistake of law, in, 181 
 
 partnership induced by, 551 
 
 post-obits, 147 
 
 powers, on, 169—75 ; see Powers. 
 
 pretence of trading, 148 
 
 public policy, 160—5; see Contracts, Illegal. 
 
 ratification, 144 
 
 release of equity of redemption obtained by, 220 
 
 reversions, sale of, 145 — 7 
 
 smjcjestio falsi, 139 
 
 suppressio veri, 141 
 
 undue influence, 157—8; see Undue Influence. 
 
 FKAUDS, STATUTE OF, 
 
 creation of trusts (ss. 7 — 9), 32 — 3 
 equitable mortgage, 257 
 
 specific perfonnance, defence, 591— 602; see Specific Perform- 
 ance. 
 with variation, 603 — 18; see Specific Performance. 
 voluntary trusts, 53 
 
 FRAUDULENT TRUSTS AND GIFTS. See Trusts, Gifts. 
 
 FUNDS IN COURT, 
 
 right to, declared, 289 
 stop order, 311 
 
 FUNERAL EXPENSES 
 
 charged on realty, effect of, 497 — 8 
 
 GAMBLING SECURITIES, 678 
 
 GIFTS INTER VIVOS, 
 chattels, of, 49 
 husband to wife, 50, 340 
 intended gifts, 50 
 lands, of, 49
 
 INDEX. 715 
 
 GIFTS INTER VIVOS— continued. 
 securities, of, 50 
 undue influence ; see Undue Influence. 
 
 effect of, 155, 158 
 
 evidence of, 158 
 
 presumption of, 154 
 
 wills, as to, 159 
 wife to husband, 348 
 
 GOODWILL, 
 
 sale of, specitic performance, 586 
 
 GUARDIAN, GUARDIANSHIP, 
 
 accounts of, 391 
 appointment by Court, 392 
 
 stranger, 392 
 
 will, 390 
 contracts between guardian and ward, 98 
 father, guardianship of, 387 
 
 interfered with, when, 388 — 9 
 
 statutory powers respecting, 389 
 
 superintendence by Coiu't, 388 
 foreign ward, of, 395 
 gifts of ward to guardian, 155 
 jurisdiction as to, 386 
 Limitations, Stat, of, 391 
 marriage of ward does not determine, 391 
 married woman not appointed alone, 393 
 mother, 388 
 natural, 387 — 8 
 obsolete forms, 387 
 removal of guardian, 389, 391 
 Roman Catholics, 390 
 security required, 395 
 survivorship of office, 390, 393 
 testamentary, 389 
 
 appointment of, 390 
 
 bankruptcy of, 391 
 
 disclaimer, 390 
 
 powers of, 391 
 
 superintendence by Court, 391 
 
 survivorship, 390 
 waiver of father's rights, 392 
 
 HEIR, 
 
 administration, place in, 499 
 
 construction of, in executory trusts, 47 
 
 conversion, rights in, 435, 436, 438; see Conversion. 
 
 devise to, election, 417 
 
 marshalling by, 511 
 
 mortgage, 
 
 reconveyance by, 221 
 
 redemption Ijy, 222 
 
 tacking against, 248
 
 71C INDEX. 
 
 HEIKLOOM, 
 
 delivery of, specific performance, 583 
 executory trust of cliattels, 48 
 
 HIGHWAY, 
 
 nuisance to, injunction, 660, 686 
 
 HOUSES, 
 
 lateral support, 658 
 
 nuisances to, 655 ; see Light, Air, &c. 
 
 HUSBAND AND WIFE. See Married Woman. 
 advancement of wife, 72 
 agreements and contracts between, 340 
 conditions tending to separate, 164 
 custody of children, 388 — 9 ; see Infant. 
 debts, ante-nuptial, 358 
 devastavit of wife, 118 
 fraud on marital rights, 382 
 gifts between, 50, 340 
 judicial separation, 354 
 loan of separate est. to husband, 348 
 maintenance, 346, 400 
 mortgages of wife's property, 226 
 presumption of advancement, when, 71 — 2 
 receipt of wife's property 1)y husband, 347, 353 
 reduction of wife's property into possession, 380 — 2 
 remedies between, under M. W. P. Acts, 357 
 seduction before marriage, 385 
 
 ILLEGAL CONTRACTS. See Contracts. 
 
 IMMORAL 
 
 books, no copyright in, 668 
 
 transactions, specific performance not decreed, 573 ; and see. 
 Contracts, Illegal. 
 
 IMPEACHMENT OF WASTE. See Waste. 
 
 IMPLIED TRUSTS, 31. See Trust-s. 
 
 IMPROVEMENTS, 
 
 allowance for, 86, 100, 238 
 lien for, by constructive trustee, 86 
 mistake as to property, 168 
 mortgagee's accounts, when allowed, 238 
 vendor, by, not allowed him, 612 
 
 INCLOSURE COMMISSIONERS, 
 purchases hy, restricted, 98 
 
 INCOME, 
 
 apportionment of, 481 
 maintenance out of, 397 — 9 
 
 I
 
 INDEX. 717 
 
 INCUMBRANCES, 
 
 notice, 278 — 80 ; see Notice. 
 
 priority of, 248—52, 287—90 ; and see Tacking, Purchase for 
 Value. 
 
 INDEMNITY 
 
 l)etween co-trustees, 121 
 trustee's right to, 85 
 
 INFANTS. See also Guardian. 
 accounts of guardian, 391 
 advancement, doctrine of, 71 — 5 ; see Advancement. 
 
 payments for, 401 — 2 ; see Advancement. 
 apprenticeship, 203, 480 
 contracts of, 152 
 
 conversion of property of, 427, 428 
 custody of, 387 
 day to show cause, 241 
 education of, 394, 397 
 election by, 420 
 foreclosure against, 241 
 foreign, guardian of, 375 
 fraud of,' 152 
 
 guardian, 387 — 96 ; see Guardian. 
 joint tenant, renewal of lease, 83 
 maintenance, 397—400 ; see Maintenance. 
 marriage of, 395 
 reconversion, 440 
 religion, 394 
 removal from father's care, 389 
 
 of ward of Court, 394, 633 
 settlement on marriage, 395 — 6 
 trustee, 25 
 ward of Court, 393 — 6 ; see Ward op Court. 
 
 INFORMATION, 
 
 public nuisance, by Att-Gen. against, 654 
 public trespass, 652 
 
 INJUNCTION, 
 
 account incident to, generally, 470, 646 
 
 copyright actions, 672 
 
 patent actions, 667 
 
 trade-mark actions, 674 
 
 trespass actions, 653 
 
 waste actions, 646 
 acquiescence, bar to, 653, 666, 671 
 actions at law against, 623 — 30 
 
 C. L. P. Act, 1854. ..624 
 
 Judicature Act, 624 
 Acts of Parliament, applications for, 631 
 air, 657 
 
 ancient lights, 656 
 Bankruptcy, by Court of, 626 
 bills of peace, 685 — 6 
 breach of trust restrained, 633
 
 718 INDEX. ^ 
 
 INJUNCTION— COT!.<mi<cd. 
 
 buildiuj^s, lateral support of, 658 
 
 classification of, 621 
 
 company, against, 652, 660 
 
 copyright protected, 667—72 ; see CoPYRKiHT. 
 
 creditors protected by, 628 
 
 ci"imes not restrained by, 661 
 
 criminal proceedings, 632 
 
 damages, inquiry as to, 576 
 
 definition of, 628 
 
 equitaljle estates and interests protected, 632 — 3 
 
 executors protected by, 203, 628 
 
 foreign Courts, suits in, 625, 630 
 
 land, as to, 12 
 general principles of, 619 
 interlocutory, 620 
 
 Judicature Act, 1873.. .624, 651, 684 
 legal rights protected, when, 634 — 6, 686 
 libel, when restrained by, 661 
 liens protected, 633 
 local Courts, proceedings in, 626 
 Lord Mayors Court, proceedings in, 626 
 mandatory, 620 
 
 marriage of wards of Court, against, 395, 633 
 multiplicity of actions restrained, 629, 686 
 navigable rivers protected, 660 
 negative contracts enforced by, 590, 619 
 noises, 658 
 
 nuisances, 653 — 60 ; see Nuisances. 
 officers of Courts of equity protected, 660 
 origin of the jurisdiction, 621 
 partnership cases, in, 545 
 patent cases, in, 661 — 7 ; see Patents. 
 perpetual, 620, 686 
 quia timet, actions, 683 
 receiver, 684 
 
 removal of wards of Court, 394, 633 
 rights established at law, 686 
 specific performance compared with, 619 
 stay of proceedings, 625, 628 
 trade-marks protected, 672 — 4 ; see Trade-marks. 
 trespass, 650 — 3 ; see Trespass. 
 trust estates protected, 629, 632, 683 
 trustee, against, 633 
 waste, 636 — 50 ; see Waste. 
 watercourses protected, 660 
 
 rights protected, 659 
 winding-up company, in, 628 
 
 INNKEEPER'S LIEN, 266 
 
 INSPECTION 
 
 in patent suits, 666
 
 INDEX. 719 
 
 INSURANCE, 
 
 assignment of policies, 56, 305 
 mortgagee, by, 238 
 
 INTEREST, 
 
 breach of trust payable in, 115 
 legacies, on, 526 
 mortgage debt, on 
 
 compound, when charged, 236 — 7 
 
 tacking of, 246 
 purchase-money unpaid, on, 611 
 
 INVENTION. See Patent. 
 
 INVESTMENT, 
 
 companies' securities, 112 
 debenture stock, 114 
 East India stock, 114 
 leasehold, 111 
 loan to co-trvistee. 111 
 moi'tgage, amount lent. 111 
 
 second. 111 
 personal security, 1 1 
 real security, 111 
 solicitor's negligence, 112 
 statutory powers of, 112 — 114 
 trustees, remedies against, 115 
 trust fund, following, 116 
 
 IRELAND, 
 
 Registration Act in, 279 
 
 JOINT TENANT AND TENANCY, 
 leaning against in equity, 76 
 lien for improvements, 86 
 mortgages, 77 
 partition sought by, 555 
 partners, when, 540 — 2 
 purchases by, resulting trust, 76 — 8 
 renewal of lease by, 83 
 
 JOINTRESS, 
 
 right to redeem mortgage, 223 
 
 JUDGMENT 
 
 creditor 
 
 not a purchaser, 59 
 
 tacking by, 250 
 debt, 
 
 administration, place in, 489 — 90 
 
 tacking of, 251 
 decree, equivalent to, 490 
 in 'personam, 10 
 in rem, 10
 
 720 INDEX. 
 
 JUDICATURE ACTS. See Table of Statutes, xiii. 
 
 JURISDICTION. And see Passim. 
 auxiliary, 3 
 coiicuirent, 2 — 5 
 exclusive, 2 
 foreign Courts, actions in, 625, G30 
 
 land, 12 
 general basis of erj^uitable, 4 
 
 JUS IN PERSONAM, 10 
 
 in rem, 10 
 
 LACHES. See Acquikscence. 
 
 LAND. See Assets, Conversion, Investment. 
 
 LAW, 
 
 mistake of ; see Mistake. 
 
 LEASE, LEASING, 
 
 agreement for, specific performance, 580 
 
 breach of covenants in, relief, 208, 210, 213 
 
 forfeiture, 208, 210, 213 
 
 mortgagee, by, 236 
 
 moitgagor, by, 236 
 
 powers of, defective execution, 193 
 
 renewal of, by joint tenants, 83 
 
 mortgagor and mortgagee, 84 
 
 triLstee, 81 
 
 LEASEHOLDS, 
 
 investments in, 111 
 
 married women, of, 335, 369 
 
 mortgages of, 229, 236 
 
 partition of, 557 
 
 renewable, purchase of, constructive trust, 86 
 
 trusts of (Statute of Frauds), 33 
 
 uses (Statute of Uses), 21 
 
 LECTURES, 
 
 copyright iu, 668 
 
 LEGACY, 
 
 abatement, 500 
 
 ademption by portion, 445 — 50 ; see Adkmption. 
 
 of specific legacy, 523 ; see Ademption. 
 annuities treated as, in administration, 296, 500 
 charge of legacies, purchaser's liability, 295 — 6 
 
 time of payment, 527 
 charitable, favoured, how far, 28 — 30
 
 INDEX. 721 
 
 IjTSGAGY— continued. 
 classification of, 516 
 debt, of, 521 
 
 satisfaction of debt by,_ 458—61 ; see Satisfaction, 
 demonstrative, characteristics of, 525 
 
 defined, 517 
 
 interest on, 527 
 
 siun charged on real estate, 522 
 
 time of jjayment, 527 
 donatio mortis cmtsa compared, 532 
 duty, converted land, 429 
 ecclesiastical law as to, 160, 513, 527 
 executor's assent required, 680 
 general, defined, 516 
 
 place in administration, 500 
 interest, rate of, 527 
 
 time of commencing, 526 
 maintenance ont of, 399 — 400 
 marshalling for, 510—11 ; see Marshalling. 
 "my stock" or "shares," &c., 519, 521_ 
 perishable property, enjoyment in specie, 103 — 5 
 repetition of, 454—7 ; see Satisfaction. 
 residuary distinguished from specific, 103—5, 520 
 reversions, vv^hen to be converted, 103 — 5 
 things quce usu consumu7itur, 520 
 specific, 
 
 ademption of, 523 ; see Ademption. 
 
 administration, place in, 500 
 
 articles of value, 520 
 
 characteristics of, 522 
 
 chattels real, of, 522 
 
 debts, of, 521 
 
 defined, 517 
 
 general legacies distinguished, 523 
 
 money, of, 520 
 
 rent, of, 522 
 
 residuary distinguished, 520 
 
 stock, of, 521 
 
 Wills' Act, effect of, 517—9 
 time of payment, 526 — 7 
 vesting of, 513, 527 
 
 LESSEE, 
 
 a purchaser, 59 ; and see Leask. 
 
 LETTERS, 
 
 copyright in, 668 
 
 LEX SITUS, 13, 23 
 
 LIBEL, 
 
 , injunction against, when, 661 
 
 LIEN, 
 
 artisan's, 265 
 banker's, 266 
 
 AAA
 
 722 INDEX. 
 
 LIEN — continued. 
 
 equitable, generally, 268 
 
 factor's, 266 
 
 general, 265 
 
 improvements by joint tenants, 86 
 
 injunction, protected by, 633 
 
 law, at, 265 
 
 renewal of leases, constructive triist, 85 — 6 
 
 solicitors, 267 — 8 ; see Solicitors. 
 
 specific, 265 
 
 trustee's, 85—6, 127 
 
 vendee's, 276 
 
 vendor's, 269 — 76 ; see Vendor. 
 
 LIGHT AND AIR, 656—7 
 
 LIMITATIONS, STATUTES OF, 
 
 absence beyond seas, 226 
 account, action for, 483 
 acknowledgment, mortgagee, by, 224, 226 
 
 mortgagor, by, 244 
 aj)propriation of payments, 475 
 covenants, 244 
 disability, 226 
 foreclosure suits, 244 
 
 mortgage, 225, 244 ; see Foreclosure, Redemption. 
 redemption, 225 
 trust, constructive, 85 
 
 express, 85, 122, 245 
 
 LIS PENDENS, 
 
 notice, 285 
 
 voluntary assignment, 57 
 
 LORD MAYOR'S COURT, 
 injunction, 626 
 
 LOCKE KING'S ACT, 506. See Administration, Mortgage Debt, 
 Table of Statutes. 
 
 LUNACY AND LUNATIC, 
 
 contracts with, 150 
 conversion of property, 427, 428 
 jurisdiction as to, 403 — 5 
 partnership, etfect on, 550 
 
 MAINTENANCE, 
 
 contracts savouring of, 165, 314 
 
 infants, of, 397—401 
 powers of, 398 
 statutory powers, 398 
 when decreed, 399 — 401 
 widow allowed, 400 
 
 A
 
 INDEX. 723 
 
 MANSION-HOUSE, 
 
 destruction of, ornamental timber, 640 
 
 MARITAL RIGHTS, 
 fraud on, 382 — 5 
 general principle, 383 
 injunction protecting, 595 
 knowledge by husband, 385 
 limits of the principle, 385 
 meritorious consideration, 384 
 seduction, effect of, 385 
 valuable consideration, effect of, 384 
 
 MARRIAGE. 
 
 agreements to marry, 163 
 articles, executory trusts in, 42 
 brokage contracts, 163 
 conditions in restraint of, 161 — 2 
 consideration of, 59 
 contracts in restraint of, 162 
 fraud on parents, 163, 594 
 settlements, in fraud of, 382 — 5 
 
 rights of creditors against, 60 
 
 rectification of, 189 — 90 
 specific performance of representations respecting, 594 
 wards of Court, of, 395, 633 
 
 MARRIED WOMAN. And see Husband and Wife. 
 acknowledgment, 374, 375, 376 
 acquiescence, 123, 353 
 administration, 347 
 advancement, presumption of, 72 
 adultery bars equity to settlement, 376 
 alienation of property, 373 — 4 
 breach of trust by, 24, 344 
 
 concurrence in, 123 
 cestui que trust, 26 
 choses in action, rights in, 343, 362, 369 
 
 reduction into possession of, 380 
 compromise by, 353 
 consent, 372 
 contracts of, bind separate estate, 345 
 
 fraud in, 153 
 
 under Married Women's Property Act, 357 — 8 
 debts, ante-nuptial, 358 
 
 charge on separate estate, 345 
 desertion of, 354, 370, 377 
 devastavit by, 118 
 dower ; see Dower. 
 election by, 420, 422 
 equity to a settlement, 
 
 adultery bars, 376 
 
 against assignees, 363, 370 
 husband, 363, 370 
 
 alienation, barred by, 373 
 
 A A A 2
 
 724 INDEX. 
 
 MARRIED WO'MA'N— continued. 
 equity to a settlement, 
 
 amount of capital, 378 
 income, 377 
 
 arrears of income, 371 
 
 barred, how, 373 — 6 
 
 cliiklren, rights of, 366 — 7 
 
 choses in action, 369 
 
 creditors, rights of, 379 
 
 curtesy not affected by, 369 
 
 desertion, effect of, 370, 377 
 
 equitable estates, 368 — 9 
 
 executor cannot retain against, 365 
 
 form of settlement, 378 
 
 fraud, barred by, 376 
 
 leaseholds, 369 
 
 legal interests, 369 
 
 life interests, 370 
 
 insolvency, barred by, 373 
 
 misconduct, barred by, 376 
 
 plaintiff in equity for, 364 
 
 property affected, 368 — 71 
 
 purchaser, against, 363 
 
 reduction into possession, barred by, 373 
 
 right to receive, attaches on, 368 
 
 settlement already made, 373 
 
 waiver of, 372 
 examination of, 374 
 foreclosure against, 241 
 fraud of, binds separate estate, 344 
 
 ecj^uity to settlement bai-red by, 376 
 guardian, 388 
 mortgages of, 226, 241 
 paraphernalia, 360 ; see Paraphernalia. 
 partner, 538 
 
 pin-money, 359 ; see Pin-money. 
 Property Acts, 354 — 9 
 reconversion by, 440 
 
 restraint on anticipation, 348 — 53 ; see Separate Estate. 
 reversionary interests, alienation of, 374 — 5 
 rights at common law, 334 — 5, 362 
 separate estate, 334—53 ; see Separate Estate. 
 separation, agreement for, specific performance, 688 
 
 effect of, 354 
 settlement ; see Marriage. 
 survivorship, rights by, 335, 382 
 trustee, 24 
 
 MARSHALLING OF ASSETS, 
 beneficiaries, between, 509 — 13 
 charity, not applied for, 30, 514 
 creditors, between, 513 
 devisee of lands charged, for, 511 
 heir, for, 511 
 legacies charged on land, 512
 
 INDEX. 725 
 
 MARSHALLING OF ASSETS— cmtinucd. 
 limits of the princi])le, 513 
 paraphernalia, for, 510 
 pecuniary legacies, for, 511 
 principle of, 509 
 specific devisee, for, 511 
 
 legatee, for, 510 
 tabular statement of, 512 
 when not applied, 512 
 
 MAESHALLING OF SECURITIES, 514-5 
 
 MAXIMS, 
 
 debitor non presumitur donare, 458 
 delegatus non potest delegare, 390 
 equality is equity, 16, 38 
 equity acts in personam, 10, 216 
 equity follows the law, 16, 23, 41 
 equity never wants a trustee, 25 
 equity regards the intent rather than the form, 15 
 equity will not suffer a ■wrong without a remedy. 634 
 exfressio unius est exclusio alterius, 497 
 
 he who comes into equity must come "vvith clean hands, 14, 164, 
 575, 678 
 seeks equity must do eqiiity, 14, 202 
 ignorantia juris neminem excusat, 178 
 mobilia sequuntur personam, 23 
 modus et conventio vincunt legem, 217, 539 
 qui prior est tempore, potior est jure, 16, 252, 272 
 vigilantibus non dormienfibus tequilas subvenit, 14, 575 
 where equities are equal the law must prevail, 252 
 
 MINES AND MINERALS, 
 
 covenants in leases of, forfeiture, 213 
 equitable waste as to, 641 
 lateral support, right of, 658 
 mortgagee, working by, 238 
 tenant for life, working In', 637 — 8 
 trespass, accounts in cases of, 653 
 
 MISREPRESENTATION, 
 
 contracts, when voidable through, 139 — 141 
 
 dcms locum contractui, 140 
 
 deception of third parties, 166 
 
 exaggeration, 139 
 
 falsity, 139 
 
 infant, by, 152, 168 
 
 married woman, by, 166, 168 
 
 material fact, 140 
 
 mistake distinguished, 177 
 
 negligent ignorance, 140 
 
 reckless, 140 
 
 remote consequences, 141 
 
 rules as to, generally, 139 
 
 specific performance, right to, barreil by, 575 
 
 trustee, by, bar to defence of ac(|uiescencc, 123
 
 72G INDEX. 
 
 MISTAKE, 
 
 accident distinguished, 198 
 
 classification of, 177 
 
 defective execution of powers, 192 ; see Powers. 
 
 definition, 176 
 
 election made under, 420 
 
 equal equity, no relief against, 188 
 
 execution of deed by, 184 
 
 expression, of, 
 
 family settlements, in, 183 
 
 rectification of instruments, 189—92 ; see Rectification. 
 
 when relieved against, 188 — 189 
 fact of 
 
 evidence of, 189 
 
 fundamental, 184—6 
 
 generally, 183 
 
 unilateral, 186 — 7 
 improvements of another's property, 168 
 law, of, 
 
 family settlements, 182 
 
 foreign law, 179 
 
 ignorantia juria neminem excusat, 178 
 
 private rights, 179 — 80 
 
 statutory law, 179 
 
 when relieved against, 180 — 1 
 legacy given by, 192 
 misrepresentation distinguished, 177 
 nature of transaction, as to, 1 84 
 person, as to, 185 
 quality and quantity, 186, 617 
 remedies, 186 
 
 specific performance suits, in, 617 ; see Specific Performance. 
 subject-matter of contract, as to, 185 
 unilateral, 177, 186 
 
 MORTGAGE, 
 
 absolute conveyance distinguished, 219, 221 
 
 accounting ; see Mortgagee. 
 
 agreement for, equitable mortgage by, 256 
 
 specific performance, 580 
 assignment of, 
 
 accountability of mortgagee, 222 
 
 concurrence of mortgagor, 221 
 
 notice, 221 
 attornment clause, 239 
 bankruptcy, consolidation in, 254 
 
 proof of debt in, 494 
 bills of sale, 229 ; see Bills of Sale. 
 chattels, 229 ; sec Bills of Sale. 
 common law doctrines respecting, 214 — 6 
 conditions in, 216, 218 
 consolidation, 
 
 bankruptcy, in, 254 
 
 limits of the principle, 255 
 
 purchasers, against, 254
 
 INDEX. 727 
 
 MORTGAGE— continued. 
 
 consolidation, 
 
 tacking compared, 253 
 conversion not effected by power of sale in, 42G 
 costs, 239, 246 
 covenant, limitation of action on, 244 
 
 not to redeem, effect of, 217 
 debt ; see Administration, Mortgage Debt. 
 definition, 215 
 
 deposit of title deeds ; see Equitable Mortgage. 
 equitable mortgage ; see Equitable Mortgage. 
 evidence, parol, as to mortgage, 219 
 executor, debt vests in, 220 
 exoneration of mortgaged estate, 507 
 family settlement, restraint on redemption, 220 
 foreclosure, 
 
 accounts in, 240 
 
 advowson of, 241 
 
 defined, 239 
 
 dismissal of action to redeem, 243 
 
 foreign lands, 12 
 
 form of decree, 240 
 
 infant, against, 241 
 
 Limitations, Statute of, 244 
 
 married woman, against, 241 
 
 reopened, how, 243 
 
 sale instead of, 240—1, 242 
 power of, 242 
 
 time for, 241 
 foreign land, 12 
 injunction against waste, 642 
 interest ; and. see Mortgagor and Mortgagee, Accounting. 
 
 penal, relieved against, 207, 218 
 
 tacking, 247 
 investments on, by trustees. 111 
 joint tenancy in, 77 
 leaseholds, 229 
 Locke King's Act, 506 
 married woman's property, 226 
 
 resulting trust of equity of redemption, 227 
 marshalling securities, 514—5 
 mortimm vadium, 214 
 notice ; see Notice. 
 personalty, 229 ; see Bills of Sale. 
 pledge compared, 228 
 preservation of the property, 238 
 priority ; see also Notice, Tacking, Purchase for Value, &c. 
 
 legal estate prevails, 246, 288 
 
 qui prior' est tempore, &c., 246, 252, 289 
 
 right to call for legal estate, 252, 289 
 purchase without notice ; see Purchaser. 
 receiver, 242 
 redemption, ecjuity of, 216 
 
 an estate, 220
 
 728 INDEX. 
 
 MORTGAG'E— continued. 
 redemption, equity of, 
 
 genenxl principle of, 216—8 
 
 Limitations, Statute of, 225 — 6 
 
 notice to mortgagor, 224 
 
 persons entitled to redeem, 222 — 3 
 
 release of, 220 
 
 time of, 224 
 
 wife's property, 227 
 sale, 237, 240, 242 
 ship, employment of, 238 
 tacking, 
 
 costs, 246 
 
 interest, 247 
 
 judgment creditor, by, 250 
 debts, of, 251 
 
 mesne incumbrancer, against, 248 — 53 
 
 mortgagor, against, 246 
 
 principle of, 245 — 6 
 
 simple contract debts, of, 247, 252 
 
 specific lien, 247 
 
 where legal estate outstanding, 251 
 trust term to secure debt, effect of, 245 
 vivum vadium, 214 
 waste, 238, 642 
 Welsh, 215 
 wife's property, 226 
 
 MORTGAGEE, 
 
 accounting by, 
 
 costs, 239 
 
 damage to property, 237 
 
 improvements, 237 
 
 interest, 236 
 
 occupation rent, 236 
 
 proceeds of sale, 237 
 
 repairs, 237 
 
 waste, 238, 642 
 action for debt, 239 
 attornment, 239 
 bankruptcy rights in, 254, 494 
 collateral advantage by, 132, 218 
 consolidation, 253 — 5 ; see Mortgage. 
 death of mortgagor, rights after, 242 
 dismissal of mortgagor's suit, effect of, 243 
 foreclosure, 240 ; see Mortgage. 
 lease by, 234 
 
 Limitations, Statute of, 244 
 partition by, 556 
 possession, right to, 240 
 purchase by, 93 
 receiver, 218 
 remedies of, 239 — 44 
 
 all pursued at once, 242
 
 INDEX. 
 
 MORTGAGEE— fon<un<ff?. 
 renewal of lease by, 84 
 sale by, 237, 240 
 tacking ; see Mortgage. 
 timber, right to, 238, 642 
 trustee, 93, 132 
 West Indian estate, of, 133 
 
 MORTGAGOR, 
 
 action in his own name by, 235 
 
 concurrence in assignment, 221 
 
 eviction, liable to, 234 
 
 injunction against, 235, 642 
 
 lease by, 234 
 
 possession, in, not accountable, 234 
 
 release of equity of redemption by, 220 
 
 renewal of lease by, 84 
 
 tacking against, 246 — 8 
 
 waste by, 235, 642 
 
 MORTMAIN, 
 
 converted money, 429 
 Statute of, 19, 27, 573 
 vendor's lien within, 271 
 
 MUSICAL COPYRIGHT, 669 
 
 NAME, 
 
 use as trade mark, 673 
 
 NATURALISATION, 
 
 alien cestui que tinist, 26 
 trustee, 25 
 right of, to converted land, 429 
 
 NAVIGABLE STREAM, 
 
 injunction protecting, 660, 686 
 
 NE EXEAT REGNO, 
 
 absconding debtors, 688 
 
 alimony, in cases of, 687 
 
 balance of debt admitted, 687 
 
 conditions of the remedy generally, 687- 
 
 Debtors' Act, 1869... 687 
 
 equitable debts, 687 
 
 Judicature Act, 1873... 688 
 
 nature and origin of the writ, 686 — 7 
 
 NECESSARIES, 
 
 contracts of infants for, 153 
 lunatics, 150 
 
 NEGLIGENCE, 
 
 co-trustee, liability for, 117 
 covenant to insure, as to, 208, 213 
 ignorance, statements made in, 140, 167 
 
 729
 
 730 INDEX. 
 
 NEGLIGENCE— coH^m^/fd 
 
 lifii of veudur lo.st by, 272 
 
 mistake arising iVoin, 187 
 
 partner, of, ground of dissolution, 550 
 
 relief against accident barred by, 201 
 
 trustee, by, 102, 117 
 
 vigilantibus non dormientibus cequitas suhvcnit ; sccIMaxims. 
 
 NEGOTIABLE INSTRUMENTS. See Bill of Exchange. 
 
 NOISE, 
 
 injunction against, 658 
 
 NOTICE, 
 
 actual notice, 280 
 
 administration, of, liability for application of purchase-money, 
 
 300 
 agent to, when notice to principal, 284 
 assignment of chose in action, 309 
 
 mortgage, 221 
 
 negotiable instnxment, 312 
 breach of trust, 121 
 
 consolidation of mortgages, effect in, 253 — 4 
 constructive, generally, 281 
 creditors, to, of trust for them, 62 
 deed, of, is notice of contents, 283 
 effects, generally, 278 
 guarantee, notice to terminate, 327 
 legal estate outstanding, 281 
 lis 'pendens, 285, 314 
 making time, essence of contract, 607 
 material structures, 283 
 occupation, 282 
 peculiarities in deeds, 281 
 private statutes, 179, 285 
 purchase with n., from a purchaser without n., 279 
 
 without n., 279 — 80 ; and see PuRCHASf:R. 
 redemption of mortgage, 224 
 registration, whether, 279, 286 
 solicitor, to, 284 
 tacking, effect in, 249 — 51 
 tenancy, 282 
 
 time of, to purchaser, 280 
 title deeds, absence of, 281 
 
 vendor's lien, effect on, 273 ; and see Purchaser. 
 Aasible appearance of property, 283 
 voluntary trust, of, 55 
 
 NUISANCES, 
 
 air, rights to, 657 
 
 ancient lights, 656 
 
 equitable jurisdiction, principles of, 655 
 
 information Ijy Attorney-General, 654 
 
 injunction, 654 — 60 
 
 jiiry, question for, 654 
 
 lateral support, 658
 
 INDEX. 731 
 
 NUISANCES— co«.<i/itterf. 
 noises, 658 
 
 obstructions of highways, &c., 660, 686 
 trespass distinguished, 653 
 public and private distinguished, 653 — 4 
 statutory authorisation, 660 
 water, rights to, 659—60, 686 
 
 OCCUPATION, 
 
 notice of, 282 
 
 rent, mortgagee, 236 
 
 OPTION TO PURCHASE, 
 
 conversion, effect in, 425 — 6 
 
 time of conversion in cases of, 432 
 conveyance with option to repurchase, mortgage compared, 219, 
 
 221 
 remedies of cestui que trust, 100 
 
 PARAPHERNALIA 
 
 defined, 360 
 disposition of, 361 
 liability to debts, 361, 501 
 marshalling for, 510 
 place in administration, 501 
 
 PARENT AND CHILD, 
 
 ademption of legacy by portion, 447 
 
 advancement, doctrine of, 71 — 5 ; see Advancement. 
 
 power of, 401 
 defective execution of power aided, 196 
 equity to settlement, rights of child, 366 
 gifts from child, fraud, 155 
 in loco parentis, 71, 447 
 infants, 386 — 403 ; see Infants. 
 interest on legacy, 526 
 satisfaction of portion by legacy, 450 — 4 
 
 PARLIAMENT. See Act of. 
 
 PARTITION 
 
 Act, 1868, s. 3... 560, 562 
 
 s. 4.. .561— 2 
 
 s. 5... 562— 3 
 
 s. 6... 563— 4 
 
 ss. 7, 8, 9... 564 
 
 s. 10... 565 
 1876.. .565— 6 
 advowson, of, 558 
 commission, when directed, 558 
 co-parceners, by, 555 
 copyholds, of, 557 
 costs, 566 
 
 difficulty, no oTyection, 558 
 dowress, by, 556 — 7 
 foreign land, of, 13
 
 732 INDEX. 
 
 PARTITWN— continued. 
 freeholds, of, 557 
 infants' ri^lits, 5G0, 565 — 6 
 joint tenant's right to, 555 
 Judicature Acts, 553 
 leasehohls, of, 551 
 
 legal title, not tried iu suits for, 556 
 manor, 558 
 mortgagee, by, 556 
 mutual conveyances, 559 
 origin of the jurisdiction of equity, 553 
 possession, plaintiff must be entitleil iu, 556 
 recompense decreed, 559 
 remaindermen bound, 555 
 sale before Partition Acts, 560 
 
 under, 560 — 4 
 tenants in common, by, 555 
 
 for life, by, 555 
 
 in tail, by, 555 
 third parties, rights of, not affected, 559 
 title of plaintiff' must be shown, 556 
 writ of, at common law, 553 
 
 PARTNERSHIP, 
 
 account without dissolution, 545 
 
 actions between finns with common partner, 546 
 
 partners at law, 543 
 in equity, 544 
 administration of assets of, 547 
 advertisement of retiring partner, 551 
 banking, 534 
 bankruptcy, 547 — 8 
 constructive trusts, 84, 97, 132, 546 
 companies ; see CoMrANY. 
 
 distinguished, 534 — 5 
 
 registration, when required, 535 
 conversion of real estate, 541 — 2 
 creditors, rights of, 546, 547, 551—2 
 definition of, 534 
 dissolution, 
 
 account in, 552 
 
 assignment of share, 55 1 
 
 bail conduct, 550 
 
 breach of articles, 551 
 trust, 550 
 
 business loss, 551 
 unlawful, 550 
 
 creditors' rights in, 551 
 
 death of partner, 549 
 
 distribution of effects, 552 
 
 fraud of partner, 551 
 
 incapacity of partner, 550 
 
 lunacy of partner, 550 
 
 operation of law, by, 549 
 
 negligence of partner, 550
 
 INDEX. 7'J.3 
 
 PARTNERSHIP— cojiJiwwerf. 
 
 dissuluti(»u, 
 
 receiver, appointment of, 552 
 
 term, expiration of, 549 
 fraud, debts incurred by, 548 
 grounds of dissolution, 549 — 51 
 grounds of jurisdiction, 533 
 how constituted, 536 — 8 
 injunctions against breach of articles, 545 
 intention of parties, 538 
 joint liability, 546 
 lunacy of partner, 550 
 married woman, 538 
 ownership by partners, 539 
 proof of debt by partners, 548 
 purchase of partnership property by partner, 97 
 real property, 
 
 belonging to partners separately, 540 
 
 conversion by agreement, 542 
 when, takes place, 541 — 2 
 
 devised to partners, 540 — I 
 
 purchased with partnership property, 540 
 for resale, 542 
 
 reconversion, 543 
 receiver, appointment of, 552 
 renewal of lease by partner, 84 
 restrictions on, 534 
 
 resulting trusts of partnership property, 540 — 2 
 retiring partner, 551 
 share of partner, 539 
 sharing profits, effect of, 536 — 7 
 solicitor partner, profit by, 132 
 specific performance of articles of, 544 
 
 contract for, 538, 588 
 surviving partner, 
 
 remedies against, 547 
 
 trustee for deceased partner, 133, 541 
 
 PART PERFORMANCE. See Specific Performance. 
 
 PATENT, 
 
 account, 667 
 damages, 667 
 
 diligence required in seeking remedy, 666 
 discovery, 667 
 grounds of jurisdiction, 661 
 infringement, what amounts to, 664 
 injunction, conditions of, 665 — 6 
 inspection, 666 
 " manufactures," 663 
 novelty required, 663 
 origin of, 662 
 procedure to obtain, 664 
 remedy at law, 662 
 in equity, 665 — 7
 
 784 INDEX. 
 
 PATENT— continued. 
 
 sale, infringement by, 6G4 
 previous, etfect of, 663 
 specification, cliaracter of, 664 
 subject of, what may be, 663 
 utility required, 664 
 
 PEACE, BILL OF, 
 
 conditions of the remedy, 685 
 
 nature of the remedy, 685 
 
 protection of rights established at law, 686 
 
 PENALTIES, RELIEF AGAINST, 
 
 bond, 207 
 
 covenants to pay, 207 
 
 collateral acts secured, 208 
 
 effect of accident, fraud, surprise, 210 
 
 interest on mortgages, 207, 218 
 
 li(|uidated damages distinguisherl, 213 
 
 no election between penalties and performance, 212, 572 
 
 several defaults secured, 209 
 
 statutory, 211 
 
 PENSION, 
 
 assignment of, 313 
 
 PERPETUATE TESTIMONY, 
 
 actions to, 689-90 
 expectancies, 690 
 grounds of the jurisdiction, 689 
 titles, 690 
 
 PERPETUITY, 
 
 election not applied against the rule of, 416 
 executory trusts, in, cy-jires, 49 
 restraint on anticipation must conform to, 351 
 trusts against the doctrine of, 37 
 
 PERSONALTY. See Administration, Trusts, Executory. 
 conditions in restraint of marriage in gifts of, 161 — 2 
 mortgages of, 228 ; see Bills of Sale. 
 wills of, 680 
 
 PIN-MONEY, 
 
 accumulation not allowed, 360 
 arrears of, when recoverable, 359 — 60 
 definition of, 359 
 executors cannot claim, 360 
 
 PLEDGE, 
 
 definition of, 228—9 
 mortgage distinguished, 228 
 2ngnus compared, 228 
 remedies of pledgee, 229
 
 INDEX. 7-S5 
 
 POLICY, 
 
 assignment of, 56, 305 
 
 PORTIONS, 
 
 ademption of legacy by, 445 — 50 ; sec Ademption. 
 satisftiction of, by legacy, 450 — 4 ; sec Satisfaction. 
 
 POSSIBILITY, 
 
 assignment of, 305 — 7 
 
 POST-OBIT BOND, 
 
 relief against, 147 
 
 POWER, 
 
 appointment, of, 
 
 married woman, by, liability to debts, 343, 346 
 
 property subject to, in administration, 502, 510 
 attorney, of, as to terminable property, 105 
 
 not an equitable assignment, 308 
 defective appointments aided, 
 
 equitable appointment, 194 
 
 formal defects aiiled, 194 
 
 intention rules, 193 
 
 leasing, p. of, 193 
 
 parliamentary p., 193 
 
 principles of granting relief, 192 
 
 reservations under p. of sale, 195 
 
 to whom relief granted, 196 — 7 
 
 what powers aided, 193 
 
 will, by, instead of deed, 194 
 
 witnesses, number of, 195 
 in the nature of a trust, 37 
 
 gift to a class, 38 
 
 time of ascertaining class, 39 
 
 when executed by Court, 37 
 fraud on, 
 
 agreement to benefit appointor, 169 
 stranger, 170 
 
 appointor benefitting himself, 170 
 stranger, 171 
 
 contract between appointees, 173 
 
 illusory appointments, 174 
 
 partial fraud, 172 
 non-execution not aided, 196 
 receipts, to give ; see Purchaser. 
 sale, of, by executors, 
 
 charge of debts, 299 
 
 equitable p., 299 
 
 implied, when, 295 
 
 statutory, 302—3 
 trustee, of ; see Trustee. 
 
 PRECATORY EXPRESSIONS, 31, 34
 
 78G INDEX. 
 
 PRE-EMPTION, 
 
 a<i:reeineiit for, by niort<,'agee, 218 
 time of, the e^?8ence of the contract, 606 
 
 PREFERENCE OF CREDITORS, 
 
 by executor, 491 
 
 fraudulent, attornment clause, 240 
 
 PRESCRIPTION, 
 
 lateral support of land and buildings, 658 
 hVdits, 656 
 pi;rity of air, 657 
 
 PRESUMPTION. See Ademption, Advancement, Satisfaction. 
 evidence in cases of, 453—4 
 
 PRINCIPAL AND AGENT. See Agent. 
 surety ; see Surety. 
 
 PRIORITY. See Administration, Mortgage, Notice, Purchaser. 
 
 PRIVATE LETTERS, 
 
 copyright in, 668 
 
 PROBATE DUTY, 
 
 land converted, 429 
 
 PROMISSORY NOTE, ^e Bill of Exchange. 
 
 PROMOTERS, 
 
 secret profits by, constructive trusts, 95 
 
 PROTECTION ORDER, 354. See Separate Estate. 
 
 PUBLIC-HOUSE, 
 
 sale of, time the essence of the contract, 606 
 
 PURCHASER 
 
 for value without notice, 
 
 breach of trust, effect of, 288, 300 
 
 defendant with legal estate, 287 
 
 equity of, 289 
 
 Judicature Acts, 291 
 
 foreclosure suits, 291 
 
 legal estate outstanding, 289 
 procured after notice, 287 
 right to call for, 289 
 
 plaintiff having legal estate, 290 
 
 relief given to, 292 
 from vf)lunteer under fraudulent trust, 57 
 liability for application of purchase-money, 293 — 302 
 
 personalty, 293 — 4 
 
 real property, 295—302
 
 INDEX. 737 
 
 PVnCKASER—coniimied. 
 
 liubility for application of purcliase-iuouey, 
 lands devised charged, 298 
 
 on trust for sale, 295 
 statutory changes, 301 — 2 
 
 QUIA TIMET, 
 
 action, 683 — 4 
 
 Judicature 4cts, eflfect of, 684 
 
 nature of, 683 
 
 relief given in, 683 — 4 
 
 RAILWAY COMPANY, 
 
 conversion of land taken hy, 428 
 
 lien of vendor against, 271 
 
 renewable leaseholds taken by, rights of tenant for life, 86 
 
 specific performance of contracts, 580, 587—8 
 
 REAL ESTATE. See Administration, Porchaseh. 
 
 RECEIPTS, POWER OF GIVING. See Trustee, Executor, Pur- 
 
 CHASER. 
 
 RECEIVER, 
 
 married woman's property, 381 
 mortgagee's right to, 242 
 mortgagee, when appointed, 218 
 quia timet, in actions, 684 
 recognizance required, 490 
 trustee, when appointed, 125 
 
 RECOGNIZANCE, 
 
 administration, place in, 490 
 required from receiver, 490 
 
 RECONVERSION, 
 
 contingent interest by, person entitled to, 442 
 
 election to take unconverted, 439, 441 
 
 infant, by, 440 
 
 intention, when implied, 442 
 
 interests bound by, what, 441 
 
 lunatic, by, 440 
 
 married woman, by, 440 
 
 neglect of trustee to convert, 443 
 
 partnership property, of, 543 
 
 presumption against, 440 
 
 receipt of money from trustees, 443 
 
 remainder-man, by, 441 
 
 retention of property unconverted, 442 
 
 tenant-in-tail, 441 
 
 undivided interests, by persons having, 441 
 
 RECTIFICATION, 
 
 settlements, of, 189 
 
 general rules as to, 190 
 
 B B B
 
 738 INDEX. 
 
 RECTIFICATION— coHii/iwed 
 voluntary deeds, 191 
 wills, 191 
 
 evidence of mistake in, 191 
 
 misdescription of legatee, 191 — 2 
 
 REDEMPTION. See Mortgage. 
 
 REDUCTION INTO POSSESSION. £^ee Husband and Wife, Married 
 Woman. 
 trust funds, of, by trustee, 101 — 2 
 
 REGISTRATION, 
 
 bills of sale, 230, 231 
 copyright, 671 
 judgments, 489, 490 
 lis pendens, 285 
 notice, whether, 279, 286 
 trade marks, 673 
 
 RELEASE, 
 
 equity of redemption of, 220 
 mistake, given by, 189 
 surety, of, 324 — 6 ; see Surety. 
 trustee, of, by cestui que trust, 123 
 
 RENEWAL OF LEASE. See Lease. 
 
 REPAIRS 
 
 allowed to mortgagee, 237 
 
 REPRESENTATIVE. See Executor. 
 
 RESTRAINT ON ANTICIPATION. See Separate Estate. 
 of marriage ; see Marriage. 
 trade, 164 
 
 RESULTING TRUST, ^e Trust. 
 
 RETAINER, 
 
 executor's right of, 365, 491—2, 495 
 
 REVERSIONARY PROPERTY, 
 
 conversion of, by trustees, 103 
 married woman's, 
 
 alienation by wife, 374 — 5 
 
 assignment by husband, 382 
 
 equity to settlement does not attach, 368 
 mortgage, foreclosure, 241 
 sale of, inadequacy of consideration, 145 — 7 
 valuation of, 147
 
 INDEX. 739 
 
 RIGHTS OF WATER AND OF WAY, 659—60. See Water, Way. 
 
 RIPARIAN OWNERS, 
 rights of, 659 
 
 RIVER, 
 
 injunction protecting, 660, 686 
 
 ROMAN LAW, 
 
 actio finium regimdorum, 554 
 
 ecclesiastical law derived from, 160 
 
 election in, 408 
 
 equity, definitions of, 7, 8 
 
 fidei commissa, 18 — 19 
 
 hypotheca, 228 
 
 inadequacy of consideration, as to, 147 
 
 legacies, as to, 160, 513, 527 
 
 pigmis, 228 
 
 SALE. See Mortgagee, Purchaser, Trustee, &e. 
 
 SATISFACTION, 
 
 ademption of legacies ; see Ademption. 
 
 debts by legacies, of, 
 
 contingent legacy does not effect, 459 
 
 expressed motive contrary to, 460 
 
 parent and cbild, relationship immaterial, 460 
 
 presumption, how rebutted, 459 — 60 
 
 pro tanto, no satisfaction, 458 — 9 
 
 debts by portions, of, 460 — 1 
 
 defined, 445 
 
 legacies by legacies, of, 
 evidence, 456 — 7 
 in different instruments, 455 
 
 the same instruments, 455 
 specific legacies, 455 
 substituted legacy on same conditions, 457 
 
 legacies by portions ; see Ademption. 
 
 portions by legacies, 
 
 evidence as to, 453 — 4 
 partial satisfaction, 452 
 presumption, how rebutted, 451 — 2 
 
 SECURED CREDITOR, 
 
 rights in administration, 494 
 
 SECURITIES, 
 
 marshalling of, 514 — 5 
 
 B B B 2
 
 740 INDEX. 
 
 SEPARATE ESTATE OF MARRIED WOMAN, 
 
 administration of, 347 
 alionation of, 
 
 absolute interest in personalty, 341 
 
 realty, 342 
 life interest in realty, 342 
 
 partial interest with power of appointment, 343 
 assignment by husband, 343 
 creation of, 
 
 by agreement, 340 
 de^dse, 338 
 gifts, 340 
 outlay on separate property, 341 
 saraigs, 341 
 bv settlement, 338 
 debts,"'liability to, 343—6 
 breach of trust, 344 
 bills of exchange, 345 
 contracts generally, 345 
 fraud, 344 
 generally, 346 
 
 life estate with power of appointment, 345 — 6 
 gift to husband of, 348 
 liability to maintenance of family, 347 
 loan to husband of, 348 
 mortgage of, 226 — 8 ; see Mortgage. 
 paraphernalia, 360 ; see Paraphernalia. 
 permissive dispositions, 347 — 8 
 pin-money, 359 ; see Pin-money. 
 power of appointment, effect of, 
 on alienation, 343 
 liability to debts, 346 
 receipt of, by husband, 348 
 restraint on anticipation, 348 — 51 
 confined to coverture, 351, 352 
 dispensed with by Court, when, 353, 422 
 effects of, generally, 351, 353 
 election against, 353, 422 
 expressions insufficient to effect, 350 
 how effected, 349—50 
 origin of, 348 — 9 
 perpetuities, rule as to, 351 
 substitution of property, 352 
 when renewed on second marriage, 351 — 2 
 statutorv, 354 — 8 
 
 20 & 21 Vict. c. 85 ; 21 & 22 Vict. c. 108,... 354 
 33 & 34 Vict. c. 93,... 355— 6 
 voluntary dispositions of, 341 — 343 
 will of, 342 
 
 SEPARATION. See Husband and Wife, Marriage. 
 specific performance of agreement for, 588 
 
 SERVICE, 
 
 specific performance of contract for, 588
 
 INDEX. 741 
 
 SET-OFF, 
 
 assignee of chose in action liable to, 311, 470 
 
 bankruptcy, in, 480 
 
 debts incurred in different rights, 479 
 
 equitable debts, 478 
 
 equity distinguished from law, 478 
 
 law, doctrines of, as to, 477 
 
 mutual credit, 478 
 
 statutory provisions respecting, 478 
 
 suretyship, in cases of, 479 
 
 trustee, by, not allowed, 116 
 
 winding up company, not allowed in, 480 
 
 SETTLED ACCOUNT, 482—3 
 
 SETTLEMENT, 
 
 consideration of marriage, 60 
 equity to, 362 — 82 ; see Married Woman. 
 family ; see Family Arrangement. 
 infants, 395 — 6 ; see Infants. 
 mortgagees by way of family s., 220 
 
 post-nuptial s. made in pursuance of ante- nuptial agreement, 60 
 rectification of, 189 — 91 ; see Rectification. 
 separate estate by ; see Separate Estate. 
 
 voluntary ; see Trusts, Voluntary, Table of Statutes, 13 
 Eliz. c. 5 : 27 Eliz. c. 4. 
 
 SHARE, 
 
 contract respecting, specific performance, 585 
 partner, of, what, 539 
 
 SHIP, 
 
 contracts respecting, specific performance, 580 
 mortgagee of, rights of, 238 
 resulting trusts of, 70 
 
 SOLICITOR, 
 
 advancement of child, presumption rebutted, 74 
 contracts with client, generally, 97 
 
 for fixed remuneration, 98 
 deed in possession of, notice, 281 
 employment by trustee, when allowed, 127—8 
 gifts from client pending suit, 156 
 lien, 
 
 funds, on, 267 
 
 general, 267 
 
 papers, on, 267 
 
 real estate, on, 268 
 
 security displacing, 268 
 
 trust fund, on, 268 
 money handed to, trustee liable for, 109
 
 742 INDEX. 
 
 BOLICITOR— continued. 
 
 notice to, constructive notice, 284 
 partner making profit of tri;st, 132 
 purchase from client, 97 
 trustee, charges allowed to, 132 
 
 remuneration of, generally, 131 — 2 
 
 SOVEREIGN. See Crown. 
 
 SPECIFIC LEGACY. See Legacy. 
 
 SPECIFIC PERFORMANCE, 
 
 arbitration, agreements to refer, 589 
 
 auctions, sales by, 595, 615 
 
 award, 589 
 
 borrowing and lending, 589 
 
 breach of prior agreement, 573 
 
 building contracts, 587 
 
 ehattels, contracts respecting, 581 
 
 difficulty of applying legal remedy, 582 
 principal and agent, between, 583 
 relief, when granted, 581 — 3 
 remedy mutual, 583 
 trusts of, 583 
 companies, contracts of^ 580, 595 
 conditions of, generally, 572 — 4 
 agreement must be legal, 572 
 complete, 573 
 on good consideration, 573 
 reasonable, 574 
 plaintiff must come promptly, 575 
 with clean hands, 575 
 deeds, contracts respecting, 584 
 family arrangements, 596 
 foreign lands, 12 
 fraud, agreements involving, 573 
 Frauds, Statute of, defence of, 591 — 8 
 admissions, 598 
 fraud of defendant, 597 
 parol agreement for lease, 596 
 part performance, 592 — 6 ; see infra, 
 possession, 593 
 general principles of jurisdiction, 571—2 
 goodwill of business, 586 
 heirlooms, 584 
 hiring and service, 588 
 illegal agreements, 572 — 3 
 Judicature Acts, 577 
 jurisdiction, conditions of, 571 
 
 discretionary, 572 
 land, contracts respecting, generally, 579 
 leases, 580 
 mortgages, 580, 589
 
 INDEX. 743 
 
 SPECIFIC PERFORMANCE— conimuec^. 
 
 land, contracts respecting, generally, 
 notice to treat, 580 
 Statute of Frauds ; see supra. 
 taking, under statutory powers, 580 
 marriage, representations connected with, 594 
 mistake, 184, 617 
 
 mortmain, agreements against, 573 
 negative contracts, injunction, 590 
 parol variations, 
 
 assent to, by plaintiff, 602 
 evidence as to, general rule, 599 
 
 not admissible for plaintiff, 598 
 when admissible for defendant, 600 — 1 
 mutually dependent contracts, 601 
 part performance of, 600 
 waiver, 602 
 partnership, agreements for, 538, 588 
 
 articles of, 544 
 part performance, 592 — 6 
 acts amounting to, 592 
 laying out money, 593 
 marriage, 594 
 payment, 593 
 possession, 593 
 railway companies, contracts of, 580, 587 — 8 
 repairing contracts, 587 
 sales at valuation, 586 
 separation of husband and wife, 588 
 shares, agreements respecting, 585 
 ships, agreements respecting, 586 
 statutory modifications. 
 Cairns' Act, 576—7 
 Eolt's Act, 577 
 variation, with, 
 
 compensation for defaults, 611 
 accessions, 612 
 deteriorations, 612 
 how calculated, 611 — 2 
 improvements, 612 
 interest, 611 
 rents and profits, 611 
 contemporaneous or subsequent v., 602 
 differences of quality, 
 
 purchasers' suits, 616 — 8 
 vendors' suits, 613 
 waiver, 614 
 
 what are substantial, 613 — 4 
 differences of quantity, 
 mistake, 618 
 notice, 617 
 
 purchasers' suits, 616^ — 8 
 stipulations against, 617 
 vendors' suits, 614
 
 744 INDEX. 
 
 SPECIFIC PERFORMANCE— continued 
 
 variation, with, 
 
 time, when essential, 
 
 enlargement of t., 607 
 
 flnctuating property, 605 
 
 malajides, 608 
 
 notice, making, 607 
 
 sale of pnhlic-house, 606 
 
 special agreement, 606 
 
 waiver, 607 
 time, when not essential, 608 — 12 
 
 conduct of parties, 608 — 9 
 
 nature of title, 610 
 
 tendency of decisions, 611 
 
 vexatious objections, 610 
 
 STATUTES. See Table of Statutes, xiii. 
 
 STATUTES OF FRAUDS, LIMITATIONS, USES. See Frauds, 
 Limitation, Uses. 
 
 STOP ORDER 
 
 on funds in Court, 311 
 
 SUBPOENA, 
 
 writ of, 20 
 
 SUCCESSION DUTY 
 
 not charged on converted money, 429 
 
 SUPERSTITIOUS USES, 28 
 
 SURCHARGING AND FALSIFYING ACCOUNTS, 483 
 
 SURETY AND SURETYSHIP, 
 
 bankruptcy, rights in, 332 
 composition with co-surety, 326 
 
 debtor, surety when released by, 324 — 5 
 concealment, effect of, 143, 319 
 continuing suretyship, 326 — 7 
 contribution, 
 
 parol evidence of contract, 329 
 
 principle of, 317, 327—8 
 
 when not applicable, 329 
 covenant not to sue co-suretv, 326 
 
 debtor, 325 
 decree, dealings after, 321 
 departure from terms of contract, 320, 323 
 divisible contract, 322 
 formation of contract, 318 
 fraud, 143, 319 
 
 general principles of equity as to, 318 — 20 
 giving time to debtor, 320 — 2 
 
 surety, 322
 
 INDEX. 745 
 
 SURETY AND SURETYSHIP— con^niwerf. 
 
 guarantee, 326 — 7 
 
 legal doctrines as to, 316 — 8 
 
 contribution, 317 
 
 death of co-surety, 318 
 
 insolvency of co-surety, 318 
 
 proof, 316 
 
 release of sureties, 316 
 need not prove damage, 321 
 quia timet, action, to protect, 684 
 release of s., 326 
 reserving rights against, 321 
 securities, right of s. to, 329, 330 
 
 bonds, 331 
 
 executions, 331 
 
 further advance, 332 
 
 judgments, 331 
 substituted security, 324 
 tacking against s., 332 
 variations from contract, 320 — 3 
 
 SURPRISE, 
 
 mistake in law arising from, 181 
 
 relief against penalties and forfeitures, 210 
 
 TACKINa. See Mortgage. 
 
 TENANCY IN COMMON, 
 partition, 555 
 preferred to joint tenancy, 43, 83 
 
 TENANT FOR LIFE, 
 
 improvements, lien for, 86 
 
 partition by, 555 
 
 redemption of mortgage, right to, 223 
 
 renewal of lease by, 81—2 
 
 timber, proceeds of sale, when entitled to, 647 
 
 waste by, 636, 642 ; see Waste. 
 
 TENANT-IN-TAIL, 
 
 reconversion by, 441 
 
 waste by, 637, 642 ; see Waste. 
 
 TESTAMENTARY GUARDIAN, 389—90. Sec Guabdian. 
 
 TESTIMONY, 
 
 action to perpetuate, 689—90 ; see Perpetuate. 
 
 TIMBER. See also Waste. 
 
 mortgagee, when entitled to, 238, 642 
 ornamental, what, 640— 1 
 proceeds of sale, 
 
 when severed by act of God, 647
 
 746 INDEX. 
 
 TIM BER—conthi ued. 
 proceeds of sale, 
 
 when severed by order of Court, 649 
 tenant, 648 
 trespasser, 648 
 trustee, 649 
 reservation under power of sale, 195 
 trees, what, 637 
 
 TIME. See Limitations, Statute of, Specific Performance, Surety. 
 ascertaining class, of, 39 
 
 TITLE, 
 
 confirmation of, 168 
 
 nature of, effect in specific performance suits, 610— 1 1 
 
 TITLE DEEDS, 
 
 delivery up of, 289, 292, 677 
 
 deposit of ; see Equitable Mortgage. 
 
 inquiry for, lien, 273 
 
 loss of, remedy, 200, 202 ; see Accident. 
 
 right to, 679 
 
 TKADE, 
 
 contracts in restraint of, 164 
 
 TRADE-MARK, 
 
 account in suits, 674 
 
 imitation, what is, 673 
 
 name, 673 
 
 principles of equity as to, 672 
 
 registration, 673 
 
 what may be, 672 
 
 TRESPASS, 
 
 account in cases of, 653 
 buildings, erection of, when restrained, 652 
 damages, inquiry as to, 653 
 
 injunctions restraining, principles respecting, 650 
 Judicature Act, 651 
 naked trespass not restrained, 651 
 public companies, by, 652 
 interest, affecting, 652 
 
 TRUSTS. And see Trustee. 
 
 application of funds ; see Purchaser, Trustee. 
 breach of, indictable, 123 ; and see Trustee, Remedies. 
 charitable, 27 — 30 ; see Charity. 
 classification of, 31 
 colonial land, of, 23 
 constructive, 
 defined, 31
 
 INDEX. 747 
 
 TRUSTS— contmnecl. 
 constructive, 
 
 purchase of trust property, 
 
 account of profits, 100 
 
 acquiescence, 91 
 
 administrator, by, 93 
 
 agent, as, 90 
 by, 95 
 through, 90 
 
 annuitant, 93 
 
 arbitrator, by, 98 
 
 auction, at, 90 
 
 cestui que trust, sui juris, 90 
 
 compensation, 100 
 
 confirmation, 92 
 
 costs, 100 
 
 decree, under, 90 
 
 directors, by, 94 
 
 executor, by, 93 
 
 express trustee, 92 
 
 fiduciary relation, person in, 99 
 
 governor of charity, 99 
 
 guardian, 98 
 
 inclosure commissioners, 98 
 
 mortgagee, 93 
 
 partner, 97 
 
 promoter of company, 94 
 
 reconveyance, 100 
 
 remedies, 100 
 
 re-sale, 100 
 
 solicitors, 97 
 
 sub-contractor, 96 
 
 trvistee in bankruptcy, 90, 94 
 renewal of leases, 
 
 account of profits, 85 
 
 administrator, by, 81 
 
 agents, by, 84 
 
 compulsory powers, purchase by, 86 
 
 executors, by, 81 
 
 express trustees, by, 81 
 
 indemnity for expenses, 85 
 
 joint tenants, 83 
 
 Limitations, Statute of, 85 
 
 mortgagor and mortgagee, by, 84 
 
 partners, by, 84 
 
 purchase of reversion, 82, 87 
 
 renewal impossible, 86 
 
 tenants for life, by, 81 
 
 volunteers claiming through trustees, 85 
 creation of, 32 — 38 
 
 object must be certain, 35 
 
 lawful, 36 — 7 
 Statute of Frauds, 32—3 
 subject must be certain, 35
 
 748 INDEX, 
 
 TRUSTS— co)i((/i»«/. 
 creati(jn of, 
 
 words, wliat sufficient, 33 — 4 
 creditors, for ; see Creditors. 
 definition of, 22 
 evidence ; see Evidence. 
 executed, 39 — 41 
 executory, 40 
 
 cif-pres, 48 
 
 intention of creator followed, 41 
 
 marriage articles, in, 42 
 personalty. 44 
 real property, 42—3 
 
 wills, in, personalty, 48 
 real property, 44 
 express, defined, 31 
 foreign land, of, 23 
 fraudulent ; see Voluntary. 
 history, outline of, 18 — 22 
 illegal, 35, 37 
 implied, 31 
 
 Limitations, Stat, of ; see Limitations. 
 parol declaration, when valid, 33, 53 
 power in the nature of, 37 ; see Power. 
 precatory words, 34 
 property subject to, what may be, 23 
 resulting, 64 — 78 
 
 acquiescence, rebutted by, 69 
 
 advancement ; see Advancement. 
 
 classified, 64 
 
 charge distinguished, 66 
 
 charitable trusts, 66 
 
 conversion, doctrine of; see Conversion. 
 
 defined, 31 
 
 evidence, 67, 68—9 ; see Evidence. 
 
 intention expressed, 64 
 presumed, 65 
 
 joint pi;rchases, 76 
 
 Parliament, Act of, contravening, 70 
 
 partnership purchases, 540 
 
 presumption of law, 67 
 when rebutted, 69 
 
 purchase in name of another, 67 
 money, payment, evidence, 68 
 
 uses compared, 65 
 secret, 34 
 volimtary, 
 
 assignment of equitable interest, 54 
 
 Bankruptcy Act, 57 — 8 
 
 binding on settlor, 61 
 
 creation of, 54 — 6 
 
 distinguished from gifts, 52 — 4 
 
 fraud, efi'ect of, 55 
 
 fraudulent, 
 
 13Eliz. c. 5,,.. .56, 60 
 
 I
 
 INDEX. 749 
 
 TRUSTS— coniiwMerf. 
 voluntary, 
 
 fraudulent, 
 
 acquiescence by creditor, 57 
 27 Eliz. c. 4,...58, 60 
 purchase money under, 59 
 
 intended gifts distinguished, 50 — 2, 53 
 
 locus 'penitenticE, when, 54 
 
 marriage consideration, 59 —60 
 
 meritorious consideration, 55 
 
 mistake, effect of, 55 
 
 notice, how far necessary, 55 ; see Notice. 
 
 payment of debts, 61 — 3 ; sec Creditors. 
 
 policies of assurance, 56 
 
 purchasers, who are, 62 
 
 Statute of Frauds, 53 
 
 transfer of legal estate, 54 
 what property may be subject of, 23 
 
 TRUSTEE, 
 alien, 25 
 
 bankrupt, 25, 117, 122 
 bankruptcy, in, 90, 94 ; see Bankruptcy. 
 breach of trust, 115, 121 — 3 
 cannot take beneficially, 36 
 corporation, 24 
 CO- trustee, liability for, 116 
 
 negligence of, 117 
 
 receipts of executors, 119 
 trustees, 118 
 Crown, 24 
 custody of trust property, 
 
 bank, 108 
 
 co-trustee, 109 
 
 property to l)e kept distinct, 110 
 
 solicitor, 109 
 equity never wants a, 25 
 indemnity clauses, 121 
 
 trustees right to, 85 
 infant, 25 
 
 investment by, 110 — 15 ; see Investment. 
 lien for improvements, 86 
 married woman, 24 
 neglect to convert, 102, 108, 443 
 outstanding property, getting in, 
 
 debts, 101—2 
 
 money employed in trade, 102 
 
 neglect, consequence of, 108 
 
 perishable property, 103 
 
 real securities, 107 
 
 reversionary interests, 103 
 power of sale by, 295, 299, 302 
 qualifications of, 24 
 remedies against, 115, 121 — 3
 
 750 INDEX. 
 
 TRUST'EE— continued. 
 
 remuneration of, 
 
 accidental profit by, 129 
 
 agents, 132 
 
 benefiting by trust, 125—6 
 
 constructive trustee, 133 
 
 contract for, 129 
 
 directors, 132 
 
 executors, 131 
 
 express trustee, 131 
 
 mortgagees, 132 
 
 solicitors, 132 
 
 trustee in bankruptcy, 132 
 
 West Indian estates, managers, 133 
 set-off not allowed in breach of trust, 116 
 who may be, 24 — 5 
 
 UNCONSCIONABLE BARGAINS. See Fraud, Undue Influence 
 catching bargains with heirs, 144 
 confirmation and acquiescence, 149 
 inadequacy of consideration, 145 
 post obits, 147 
 pretence of trading, 148 
 reversions, sale of, 145 — 7 
 
 UNDUE INFLUENCE, 
 
 doctor and patient, 156 
 evidence of, 159 
 
 fiduciary relations generally, 159 
 guardian and ward, 155 
 lawyer and client, 156 
 parent and child, 155 
 priest and penitent, 157 
 wills, in obtaining, 159 
 
 USES, 
 
 introduction of, 19 
 
 resulting, 65 
 
 statute of, 20 
 
 trusts compared, 21 — 2, 65 
 
 VENDOR'S LIEN, 
 
 abandonment, 274 — 5 
 annuity, sale for, 270 
 injunction protecting, 633 
 interest in land, how far, 271 
 Locke King's Act, 272, 508 
 marshalling for, 276 
 negligence, lost by, 272 — 3 
 notice, 273 
 
 purchaser for value, against, 272 — 4 
 railway company, purchase by, 271 
 trustee in bankruptcy, against, 274 
 waiver of, 274 — 5
 
 INDEX. 751 
 
 VOLUNTAEY SETTLEMENT. See Trusts, Voluntary. 
 VIVUM VADIUM, 214 
 
 WARD OF COURT, 
 education of, 394 
 injunctions respecting, 633 
 marriage of, 395, 633 
 removal of, 394 
 settlements, 396 
 
 WASTE, 
 
 account, 646 
 
 adverse title, by person claiming, 644 
 Common Law Procedure Act, 638 
 equitable remedies generally, 645 
 
 waste defined, 639 
 equity contrasted witli law, 639 
 executory devise, 644 
 injunction, 644 — 6, and passim. 
 Judicature Acts, 638 
 law, doctrines of, 
 
 acts amounting to w., 637 
 
 against whom chargeable, 637 
 
 definition of w., 636 
 
 remedies for, 638 
 Limitations, Statute of, 649 
 mansion-house, dismantling, 639 
 mines, opening, 637 
 mining, improvident, 641 
 mortgagor and mortgagee, by, 238, 642 
 permissive, 644 
 
 proceeds of sale, 647—9 ; see Timber. 
 remainder-men, 642 — 4 
 saplings, cutting, 641 
 tenants in common, by, 645 
 
 for life, by, 
 
 in equity, 642 
 at law, 637 
 
 in tail, 
 
 in equity, 641 — 2 
 at law, 637 
 timber ; see Timber. 
 
 equitable doctrines, 640 
 
 legal doctrines, 637 
 
 proceeds of sale, 647 — 9 
 underlessee, by, 645 
 writ of, 638 
 
 WATER-RIGHTS, 
 
 injunctions protecting, 659—60
 
 /. 
 
 752 INDEX. 
 
 WAY, RIGHTS OF, 
 
 injunctions prutecting, 660, 686 
 
 WELSH MORTGAGE, 215 
 
 WEST INDIAN ESTATES, 
 
 mortgagees of, rights of, 133 
 
 WIDOW. See Dower. 
 
 right to allowance for maintenance, 400 
 
 WIFE. See Married Woman, Husband and Wife. 
 
 WILLS. And see Election, Conversion, Legacy, Evidence. 
 actions or bills to establish, 679 — 82 
 executed trusts in, 41 
 executory trusts in, 44 — 8 
 heir cannot contest validity of, 682 
 imperfect will not aided, 52 
 jurisdiction of Chancery, 680 — 1 
 personalty, of, probate, 680 
 realty, of, 680 
 rectification of, 191 
 
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 comprising the Bankruptcy Act, the Debtors Act, and the Bankruptcy 
 Repeal and Insolvent Court Act of 1869, and the Rules and J'orms 
 made under those Acts. Second Edition. By ROLAND VAUGHAN 
 WILLIAMS, Esq., and WALTER VAUGHAN WILLIAMS, 
 Esq., assisted by Fkakcis Hallett Hardcastle, Esq., Barristers- 
 at-Law. 8vo. 1876. 1?. 8s. 
 
 ■ ' It would be difficult to speak in terms of undue praise of the present work." 
 
 BAR, GUIDE TO THE. — Shearwood.— FeWe "Examination Guides." 
 
 BILLS OF EXCHANGE— Chalmers' Digest of the Law 
 
 of Bills of Exchange, Promissory Notes, and 
 
 Cheques. By M. D. CHALMERri, of the Inner Temple, Esq., 
 
 Barrister-at-Law. Second Edition. Demy 8vo. 1881. 15*. 
 
 " In its present form this work contains a very complete digest of the subjects 
 
 to which it relates." — T/<e Lcnr Tinas, Sept. 1", ISSl. 
 
 " As a handy book cf reference on a difficult and important branch of the law, it is 
 most valuable, and it is perfectly plain that no pains have been spared to render it 
 complete in every respect. The index is copious aud well arranged." — Saturday Rcvieio. 
 
 Chitty on Bills of Exchange and Promissory 
 Notes, with references to the law of Scotland , 
 France and America. — Eleventh Edition. By JOHN A. 
 RUSSELL, Esq., LL.B., one of Her Majesty's Counsel, and Judge 
 of County Courts. Demy 8vo. 1878. \l. 8s, 
 
 Eddis' Rule of Ex parte Waring. By A.. C. EDDIS. 
 B. A, of Lincoln's Inn, Barrister-at-Law. Post Svo. 1876. Nd,2s.Qd. 
 
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 BILLS OF LADING.— Leggett's Treatise on the Law of 
 
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 attaching to the Bill of Lading ; the legal effects of each of the 
 
 Clauses and Stipulations ; and the Rights and Liabilities of C!on- 
 
 signors, Consignees, Indorsees, and Vendees, under the Bill of 
 
 Lading. With an Appendix, containing Forms of Bills of Lading 
 
 chiefly used in the United Kingdom, Continental, Mediterranean, 
 
 Trans-Atlantic, African, Asiatic, Colonial, West Indian, and other 
 
 important trades. By EUGENE LEGGETT, Solicitor and Notary 
 
 Public. Demy Svo. 1880. 1^. Is. 
 
 BILLS OF SALE. — Cavanagh.— FttZe "Money Securities." 
 
 BURIAL AND OTHER CHURCH FEES — Dodd's Burial and 
 
 other Church Fees and the Burial Act, 1880. 
 
 —With Notes. By J. THEODORE DODD, M.A., Barrister-at- 
 
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 CARRIERS. — Browne on Carriers. — A Treatise on the Law of 
 
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 CHANCERY, and Vide " EQUITY." 
 
 Danlell's Chancery Practice.— The Practice of the 
 
 Chancery Division of the High Court of Justice and on appeal 
 
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 with alterations and additions, and references to a companion 
 
 Volume of Forms. By L. FIELD, E. C. DUNN, and T. RIBTON, 
 
 assisted by W. H. Upjohn, Barristers-at-Law. In 2 vols. Vol. I. 
 
 (loith Table of Cases and an Index), demy Svo. 1882. 21. 2s. 
 
 " This new cditiou of the Standard Chancery Practice will be generally welcomed, 
 
 and we are glad that we can speak favourably of the manner in which the editors 
 
 have accomi)lished their difficult task of deciding what parts of the old work should 
 
 be rejected, and of adapting the parts retained to the new practice. There is to be foiuid, 
 
 in every part of the book we have examined, evidence of great care ; the cases are 
 
 not merely jotted down, but analj-sed and considered, and no pains appear to have 
 
 been spared to render tlie i:iformation given both accurate and complete. This is 
 
 high praise, but we think it is fully warranted by the result of our examination of 
 
 the work. . . . It is exactly what it professes to be — a concise and careful digest 
 
 of the practice." — Solicitors Journal, July 1, ISS'2. 
 
 " The best parts of this volume are undoubtedly the introduction and the chapters 
 on pleading, Ijut all the portions relating to the practice introduced by the Judicature 
 Acts and Rules are well done." — Law Timet, April 1, 1S82. 
 
 "The learned authors have spared no pains to make this new book of practice as 
 comprehensive in scope and as accurate in detail as that which so long e:ijoj'ed an 
 almost unique reputation as ' Daniell's Practice. ' Indeed if any fault is to be alleged 
 it would be that the work is perhaps somewhat too exhaustive ; a fault, however, 
 which is on the right side in a book of practice, which is not intended to be read 
 through, but to serve as a mine of information for read}' reference whenever the 
 practitioner may have occasion to seek for guidance." — Lan- Magazine, May, 1882. 
 *,,,• Vol. II. is in the j)rcss, and will he published about November next. 
 Daniell's Forms and Precedents of Proceed- 
 ings in the Chancery Division of the High 
 Court of Justice and on Appeal therefrom; 
 with Dissertations and Notes, forming a complete guide to the prac- 
 tice of the Chancery Division of the High Court and of the Courts 
 of Appeal. Being the Third Edition of "Daniell's Chancery Forms." 
 By WILLIAM HENRY UPJOHN, Esq., of Gray's Inn, &c 
 Demy Svo. 1879. 21. 2s. 
 
 " Mr. Upjohn has restored the volume of Chancery Forms to the place it held before 
 the recent changes, as a trustworthy and complete collection of precedents. It has 
 all the old merits ; nothing is omitted as too trivial or commonplace ; the solicitor's 
 clerk finds how to indorse a brief, and how, when necessary, to give notice of action ; 
 aud the index to the forms is full and perspicuous."— Solicitors' Journal. 
 
 •• It will be as useful a work to pi actitioners at Westminster as it will be to those 
 in Lincoln's Inn."--jCair Timet. 
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 CHANCERY.-Conlinued. 
 
 Haynes' Chancery Practice.— The Practice of 
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 HAYxNTES, LL.D. Demy 8vo. 1879. 1/. 5s. 
 
 Morgan's Chancery Acts and Orders.— The Statutes, 
 General Orders, and Rules of Court relating to the Practice, 
 Pleading, and Jurisdiction of the Supreme Court of Judicature, 
 particularly with reference to the Chancery Division, and the 
 Actions assigned thereto. Witli copious Notes. Fifth Edition. 
 Adapted to the new Practice by GEORGE OSBORNE MORGAN, 
 M.P., one of Her Majesty's Counsel, and CHALONER W. CHUTE, 
 Barrister- at-Law. Demy 8vo. 1876. 1/. 10». 
 
 " This edition of Mr. JI organ's treatise must, we believe, be the most popular witli 
 the profession." — Law Times. 
 
 Morgan and ^A^urtzburg's Chancery Costs. — 
 
 Vide "Costs." 
 
 Peel's Chancery Actions.— A Concise Treatise 
 
 on the Practice and Procedure in Chancery 
 
 Actions. — Second Edition. Including the Practice in Chambers. 
 
 By SYDNEY PEEL, of the Middle Temple, Esq., Barrister-at- 
 
 Law. Demy 8vo. 1881. 8s. 6rf. 
 
 " Mr. Peel's little Work gives a very commendable sketch of the modem practice 
 
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 Chambers and on Further Consideration, which are likely to be valuable from the 
 
 extreme paucity of all printed information upon these subjects ; and it is enriched 
 
 with a very full list of ca^es bearing upon the practice of the Chancery Division, 
 
 giving references to all the Reports." — lew Journal . 
 
 " The book will give to the student a good general view of the effect on chancerj 
 practice of the Judicature Acts and Orders." — Solicitors' Jov.raal. 
 
 CHANCERY PALATINE OF LANCASTER.— Snow and Win- 
 Stanley's Chancery Practice. — The Statutes, Consoli- 
 dated and General Orders and Rules of Court relating to the Practice, 
 Pleading and Jurisdiction of the Court of Chancery, of the County 
 Palatine of Lancaster. With Copious Notes of all practice cases to 
 the end of the year 1879, Time Table and Tables of Costs and Forms. 
 By THOMAS SNOW, M.A., and HERBERT WINSTANLEY 
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 CIVIL LAW. — Bo"wyer's Commentaries on the Modern 
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 Bowyer's Introduction to the Study and Use 
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 Cumin's Manual of Civil Law, containing a Translation 
 of, and Commentary on, the Fragments of the XII. Tables, and 
 the Institutes of Justinian ; the Text of the Institutes of Gains and 
 Justinian arranged in parallel colvmins ; and the Text of the Frag- 
 ments of Ulpian, &c. By P. CUMIN, M.A., Barrister-at-Law. 
 Second Edition. Medium 8vo. 1865. 18s 
 
 COLLISIONS.— Lowndes' Admiralty Law of Collisions 
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 Marsden on Maritime Collision.— A Treatise on the 
 Law of Collisions at Sea. With an Appendix containing Extracts 
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 for the same purpose in force in the Thames, the Mei-sey, and else- 
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 COLONIALLAW.— Clark's Summary of Colonial Law 
 
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 Hadley's Commentaries on the Laws of Eng- 
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 HADLEY, M.A., Barristers at-Law. 4 vols. 8vo. 1869. (Pub- 
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 COMMERCIAL LAW.—Goirand's French Code of Com- 
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 With a Theoretical and Practical Commentary, and a Compendium 
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 judicial terms. By LEOPOLD GOIRAND, Licencii? en droit. 
 In 1 vol. (850 pp.). DemySvo. 1880. 2/. 2s. 
 Levi.^ — Vide " International Law." 
 COMMON LAW.— Archbold's Practice of the Queen's 
 Bench, Common Pleas and Exchequer Divi- 
 sions of the High Court of Justice in Actions, 
 etc., in which they have a cominon jurisdic- 
 tion.— Thirteenth Edition. By SAMUEL PRENTICE, Esq., 
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 Archibald's Country Solicitor's Practice; a 
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 " Wc are m\ich mistaken if it does not become as widely used among the profession 
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 book."— TAe Times, January 7, 1SS2. 
 
 " We have no doubt that it will meet with due appreciation at the hands of both 
 London and Country .solicitors." — The Law Magazine, February, 1882. 
 
 " The author is to^bc very much complimented on this most careful and compre- 
 hensive manual Admirably arranged and indexed." ^Sahirday Eeciew, 
 
 December 3, 1881. 
 
 " The commentary is extremely well written . . . Mr. Archibald has succeeded 
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 Ball's Short Digest of the Common Law; being 
 the Principles of Torts and Contracts. Chiefly founded upon the 
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 By W, EDMUND BALL, LL.B., late " Holt Scholar " of Gray's 
 Inn, Barrister-at-Law and Midland Circuit. Demy 8vo. 1880. 16s. 
 principles of the law are verj- clearlj' and concisely stated. ' — Law Journal. 
 
 Bullen and Leake. — F/de "Pleading." 
 Chitty.— Vide "Forms." Foulkes.— Fec?e "Action." 
 
 Fisher. — Vide " Digests." Prentice. — Vide "Action." 
 Shirley. — Vide "Leading Cases." 
 
 Smith's Manual of Common Law. — For Practitioners 
 and Students. Comprising the fundamental principles and the points 
 most usually occurring in daily life and practice. By JOSIAH W. 
 SMITH, B.C.L., Q.C. Ninth Edition. 12mo. 1880. 14s. 
 
 COMMONS AND INCLOSURES.— Chambers' Digest of the 
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 documents ; precedents of by-laws and regulations. The Statutes in 
 full and brief notes of leading cases. By GEORGE F. CHAM- 
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 COMPANY LAW.— Palmer.— Fitie "Conveyancing." 
 
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 tors of Companies, under the Companies' Acts, 1862 to ISSO. 
 Third Edition. With an Ajjpendix on the Conversion of Business 
 Concerns into Private Companies. By F. B. PALMER, Esq., Bar- 
 rister-at-Law. 12mo. 1882. /»'e«, 2s. 6d. 
 
 Palmer's Private Companies, their Formation and 
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 rister-at-Law. Author of " Company Precedents." 12mo. 1881. Net,2s. 
 Thring.— Fid€ "Joint Stocks." 
 CONTINGENT REMAINDERS.— An Epitome of Fearne on 
 Contingent Remainders and Executory De- 
 vises. Intended for the Use of Students. By W. M. C. Post 
 Svo. 1878. 6s. 6d. 
 
 " Tlie student will fiud a perusal of this epitome of great value to him." — Law Journal. 
 
 CONTRACTS. — Addison on Contracts. — Being a Treatise on 
 
 the Law of Contracts. Eighth Edition. By HORACE SMITH, 
 
 Esq., Barrister-at-Law, Recorder of Lincoln, Author of " A Treatise 
 
 on the Law of Negligence," &c.,&c. [licady in December.) 
 
 Fry. — Vide " Specific Performance." 
 
 Leake on Contracts. — An Elementary Digest of the Law 
 of Contracts (being a new edition of " The Elements of the Law of 
 Contracts"). By STEPHEN MARTIN LEAKE, Barrister-at- 
 Law. 1 vol. Demy 8vo. 1878. II. 18s, 
 Pollock's Principles of Contract.— Being a Treatise 
 on the General Principles relating to the Validity of Agreements 
 in the Law of England. Third Edition, revised and partly re- 
 written. By FREDERICK POLLOCK, of Lincoln's Inn, Esq., 
 Barrister-at-Law. Demy Svo. 1881. 11. 8s. 
 The late Iiord Chief Justice of England In his judgment in Metropolitan Railwaj/ 
 Company s. Brogden and othet-s, said, "The Law is well put by Mr. Frederick 
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 "Wehaveuothiiigbiitprai.se for this (third) edition. 1 he material recent cases 
 have been added and the whole work has been carefully revised." — Solicitors' Journal. 
 "A work which, in our opinion, shows great ability, a discerning intellect, a 
 comprehensive mind, and painstaking industry." — Low Journal. 
 
 " Jb'or the purposes of the student there is no book equal to Mr. Pollock's." 
 " He has succeeded in writing a book on Contracts wnich the working lawyer will find 
 as useful lor reference as any of its predecessors, and wliich at the same time will give 
 the student what he will seek for in vain elsewhere, a complete rationale of the law,"— 
 Law Magazine and Review. 
 
 Smith's Law of Contracts.— By the late J. W.SMITH, 
 Esq., Author of " Leading Cases," &c. Seventh Edition. By 
 VINCENT T. THOMPSON, Esq., Barrister-at-I-aw. Demy 8vo. 
 1878. II. Is. 
 
 " We know of few books equally likely to benefit the student, or marked by such dis- 
 tinguished qualities of lucidity, order, aud accuiacy as the work before us." — Solicilors' 
 Journal. 
 CONVEY ANCING.-Dart.— Fzde « Venlors and Purcha.sers." 
 
 Dawson's Synopsis of the Conveyancing and 
 Law of Property Act, 1831; with Index and Forms. 
 By J. W. DAWSON, SoHcitor. 1S81. Net, 2s. M. 
 
 Hewitt's Exposition of the Conveyancing and 
 Law of Property Act, 1881. By JOHN HEWITT, 
 Solicitor. Royal 12mo. 1882. 7s. Qd. 
 
 •' The work coutaiii.s some original opinions." — Law Times, July 15, 18S2. 
 
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 CON V EY AN C I [iC.-Co,>tuiaej. 
 
 Green^^'Ood's Manual of Conveyancing. — A Manual 
 of the Practice of Conveyancing, showing the present Practice relating 
 to the daily routine of Conveyancing in Solicitors' Offices. To which 
 are added Concise Common Forms and Precedents in Conveyancing. 
 Seventh Edition. Edited and revised, with special reference to the 
 Conveyancing and Law of Property Act, 1881, by HARRY GREEN- 
 WOOD, M.A., Esq., Barrister-at-Law. Demy 8vo. 1882. 15s. 
 " 'riie Autlior lias carefully worked the provisions of the Act into his text, calling 
 special attention to the effect of those sections whicli make absolute changes in the 
 law, as distinguished from those which are merely optional for adoption or exclusion." 
 — The La a- Magazine, February, 1882. 
 
 "We should like to see it, or some such work, placed by his principal in 
 the hands of every articled clerk, at a very early period of his articles. It is, 
 
 altogether, one of the most useful practical works we have ever seen 
 
 Invaluable for general purposes. ' — ladertiwMr's Law student's jouviwi. 
 
 Harris and Clarkson's Conveyancing and Law 
 
 of Property Act, 1881 ; with Introduction, Notes and Copiou.s 
 
 Index. By W. MANNING HARRIS, M.A., and THOMAS 
 
 CLARKSON, M.A., of Lincoln's Inn, Barristers-at-Law,and Fellows 
 
 of King's College, Cambridge. Demy 8vo. 1882. 9i-. 
 
 " The notes in this volume are more coi)ious and exhaustive than those in any other 
 
 edition of these Acts which has at present appeared." — The Law Journal, Jan. 28, 1882. 
 
 " The notes which are intercalated between the sections of the Acts are both 
 
 elaborate and valuable The index is specially full and clear." — Law 
 
 Mayazine, Feb. 1882. 
 
 Humphry's Common Precedents in Convey- 
 ancing, adapted to the Conveyancing Acts, 1881-82, the Settled 
 Land Act, 1882, and Married Women's Property Act, 1882. To- 
 gether with the Acts, an Introduction, and Practical Notes. Second 
 Edition. By HUGH M. HUMPHRY, Esq., Barrister-at-Law. 
 
 {In pirparation.) 
 
 Palmer's Company Precedents. — For use in relation 
 to Companies subject to the Companies' Acts, 1862 to 1880. 
 Arranged as follows : — Agreements, Memoranda and Articles of 
 Association, Prospectus, Resolutions, Notices, Certificates, Deben- 
 tures, Petitions, Orders, Reconstruction, Amalgamation, Arrange- 
 ments, Private Acts. With Copious Notes. Second Edition. Bv 
 FRANCIS BEAUFORT PALMER, of the Inner Temple, Esq", 
 Barrister-at-Law. Royal 8vo. 1881. 1^ 10s. 
 
 " A work of great pi-actical utility." — Law Magazine. 
 
 " To those concerned in getting up companies, the assistance given by Mr. Palmer 
 must be very valuable, because he does not confine himself to bare precedents, but 
 by intelligent and learned commentary lights up, as it were, each step that he takes. 
 . . There is an elaborate index. "^law Tiines. 
 
 " To those who are acqiiainted with the fii-st edition we recommend the second 
 edition as a great improvement." — Law Journal. 
 
 Prideaux's Precedents in Conveyancing. — With 
 Dissertations on its Law and Practice. Eleventh Edition. Tho- 
 I'oughly revised and adapted to the Conveyancing and Law of 
 Property Act, 1881. By FREDERICK PRIDEAUX, late Pro- 
 fessor of the Law of Real and Personal Property to the Inns of Court, 
 and JOHN WHITCOMBE, Esqrs., Barristers-at-Law. 2 vols. 
 Royal 8vo. 1882. Zl. 10s. 
 
 " The most useful work out on conveyancing'."— ifwTouniaZ. 
 " The whole of the Precedents have been revised by the light of the new Act with 
 
 discriminating care The conciseness and scientific firecision of these 
 
 Precedents of the Future are at once plea.sing and startling The Valuable 
 
 Dissertations on the law and practice, which have always formed a feature of these 
 volumes, have been revised thoroughlj', and brought into confoi-mity with the 
 various changes and modifications introduced by the new Act." — Law Magazine, 
 r«br\iary, 1SS2. 
 
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 119, CHANCERY LANE, LONDON, W.O. 9 
 
 CONVICTIONS.— Paley's Law and Practice of Sum- 
 mary Convictions under the Summary Juris- 
 diction Acts, 1848 and 1879; including Proceedings 
 preliminary and subsequent to Convictions, and tlie responsibility 
 of convicting Magistrates and their Officers, with Forms. Sixth 
 Edition. By W. H. MACNAMARA, Esq., Barrister-at-Law. 
 Demy 8vo. 1879. 1^ 4s. 
 
 Templer. — Vide "Summary Convictions." 
 
 Wigram. — Vide "Justice of the Peace." 
 
 CORONERS.— J ervis on the Office and Duties of 
 Coroners. — With Forms and Precedents. Fourth Edition. By 
 R.E.MELSHEIMER, Esq., Barrister-at-Law. PostSvo. 1880. 12s. 
 
 COSTS. — Morgan and Wurtzburg's Treatise on the 
 L.B.W of Costs in the Chancery Division of the 
 High Court of Justice. — Being the Second Edition of 
 Morgan and Davey's Costs in Chancery. With an Appendix, 
 containing Forms and Precedents of Bills of Costs. By the 
 Right Hon. GEORGE OSBORNE MORGAN, one of Her 
 Majesty's Counsel, Her Majesty's Judge Advocate General, and 
 E. A. WQRTZBURG, of Lincoln's Inn, Esq., Barrister-at-Law. 
 DemySvo. 1882. 30.s-. 
 
 '"Cannot fail to be of use to solicitors and their Clianccry managing clerks."— Laio 
 
 Times, July 22, 18S2. 
 
 Scott's Costs in the High Court of Justice 
 and other Courts. Fourth Edition. By JOHN SCOTT, 
 of the Inner Temple, Esq., Barrister-at-Law, Reporter of the Com- 
 mon Pleas Division. Demy 8vo. 1880. 1^. 6s. 
 " Mr. Scott's introductory notes are very useful, and the work is now a compendium 
 on the law and practice regarding costs, as well as a booli of precedents." — Law Times. 
 
 Scott's Costs in Bankruptcy and Liquidation 
 under the Bankruptcy Act, 1869. Royal 12mo. 
 1873. A^ei, 3s. 
 
 Summerhays and Toogood's Precedents of 
 Bills of Costs in the Chancery, Queen's 
 Bench, Common Pleas, Exchequer, Probate 
 and Divorce Divisions of the High Court of 
 Justice, in Conveyancing, Bankruptcy, the Crown Office, Lunacy, 
 Arbitration under the Lands Clauses Consolidation Act, the Mayor's 
 Court, London ; the County Courts, the Privy Council, and on 
 Passing Residuary and Succession Accounts ; with Scales of Allow- 
 ances and Court Fees, the Law Society's Scale of Commission in 
 Conveyancing ; Forms of Affidavits of Increase, and Objections to 
 Taxation. By Wm. FRANK SUMMERHAYS, Solicitor, and 
 THORNTON TOOGOOD. Fourth Edition. (In preparation.) 
 
 Webster's Parliamentary Costs. — Private Bills, 
 Election Petitions, Appeals, House of Lords. By EDWARD 
 WEBSTER, Esq., of the Taxing and Examiners' Office. Fourth 
 Edition. By C. CAVANAGH, Esq., Barrister-at-Law. Author 
 of "TheLawof Money Securitie.s." PostSvo. 1881. 20s. 
 
 "This edition of a well known work is in great part a new publication; and it 
 contains, now printed for t)ie first time, the Table of Fees cliargcd at the House of 
 
 Lords We do not doubt that Parliamentiiry agents will find tlie work 
 
 eminently useful." — Law Jmmnd. 
 
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 10 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 COUNTY COURTS.— Pitt-Lewis' County Court Prac- 
 tice. — A Complete Practice of the County Courts, including Admi- 
 ralty and Bankruptcy, embodying the Acts, Rules, Forms and Costs, 
 with Additional Forms and a Full Inde.x. By G. PITT-LEWIS, 
 of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, 
 sometime Holder of the Studentship of the Four Inns of Court, 
 assisted by H. A. De Coltak, of the Middle Temple, Esq., 
 B.arrister-.at-Law. In 2 vols. (2028 pp.). Demy 8vo. 1880. 21. 2s. 
 " The late Lord Chief Justice of England in his written judgment in 
 Stooke V. Taylor, says, ' The law as to the difference between set-off 
 and counter-claim is correctly stated by Mr. Pitt-Lewis, in his very 
 useful work on County Court Practice.' " — See Laio Times Reports, 
 October 16, ISSO, p. 204. Mr. Justice Fry in Beddall v. Maitland also 
 cites and approves the same passage.— See L. /?., Chancery, June, 1880. 
 
 " It is very clearly written, and is always practical, ... Is likely 
 to become the standard County Court practice." — Solicitors' Journal. 
 
 " One of the best books of practice which is to be found in our legal 
 literature." — Lan; Times 
 
 " We have rarely met with a work displaying more honest industry 
 on the part of the author than the one before us." — Laio Jouimal. 
 
 " Mr. Pitt-Lewis has, in fact, aimed — and we are glad to say success- 
 fully — at providing for the County Courts' practitioner what ' Chitty's 
 Archbold ' and ' Daniell's Chancery Practice' have long been to practi- 
 tioners in the High Court." — Law Maijazine. 
 
 CRIMINAL LAW.— Archbold's Pleading and Evidence 
 in Criminal Cases. — With the Statutes, Precedents of 
 Indictments, &;c., and the Evidence necessary to support them. 
 Nineteenth Edition, including the Practice in Criminal Proceedings 
 by Indictment. By WILLIAIVI BRUCE, Esq., Barrister-at-Law, 
 and Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 
 1878. i;. lis. 6d. 
 
 Roscoe's Digest of the Law of Evidence in 
 Criminal Cases.— Ninth Edition. By HORACE SMITH, 
 Esq., Barrister-at-Law. Royal 12mo. 1878. ll.Ws.M. 
 
 Russell's Treatise on Crimes and Misdemea- 
 nors.— Fifth Edition. By SAMUEL PRENTICE, Esq., one of 
 Her Majesty's Counsel. 3 vols. Royal 8vo. 1877. 51. 15s. 6rf. 
 "What better Digest of Criminal Law conld we possibly hope for than 'Russell on 
 Crimea? ' " — Sir James Fiujames Stephen's Speech on CodiHco.lion. 
 
 "No more trustworthy authority, or more exhaustive expositor than 'Russell' can be 
 consulted." — Law Magazine and Reviac, 
 
 " Alterations have been made in the arrangement of the work which without interfering 
 with the general plan are sufacient to show that great care and thought have been 
 
 bestowed We are amazed at the patience, industry and skill which are exhibited 
 
 in the collection and arrangement of all this mass of learning." — The Times. 
 
 Shirley's Sketch of the Criminal Law. — By W. 
 
 SHIRLEY SHIRLEY, M.A., Esq., Barrister-at-Law, Author of 
 
 " Leading Cases made Easy," assisted by C. M. ATKIXSON, M.A., 
 
 B.C.L., Esq., Barrister-at-Law. Demy 8vo. 1880. 7s. 6d. 
 
 " As a primary introduction to Criminal Law, it will be found very acceptable to 
 
 Students."— Zflic Students' Jov.rnal, Noveniher 1, 1S80. 
 
 CROSSED CHEQUES ACT— Cavanagh.— Fic^e "Money Securi- 
 
 ties." 
 Walker.— Fide "Banking." 
 
 DECREES.— Seton.— FzcZe " Equity." 
 
 *,* AM iiandard Law Works are Icept in Stock, in law calf and other Jnndings,
 
 7 
 
 
 
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 9 
 
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 DIARY.— Lawyer's Companion (The), Diary, and Law 
 Directory for 1883.— For the use of the Legal Profession, 
 Public Companies, Justices, Merchants, Estate Agents, Auctioneers, 
 &c., &c. Edited by JOHN THOMPSON, of the Inner Temple, 
 Esq., Barrister-at-Law ; and contains Costs in Conveyancing and 
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 Charges in Conveyancing, before 1st January, 1883 ; a Digest of 
 Useful Decisions on Costs ; Monthly Diary of County, Local Govern- 
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 Copious Table of Stamp Duties; Legal Time, Interest, Discount, 
 Income, Wages and other Tables; Probate, Legacy and Succession 
 Duties ; and a variety of matters of practical utility. Published 
 Annually. Thirty-seventh Issue. {Ready Nov. 1.) 
 
 * The work also contains the most complete List published of Town and 
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 in the following forms, octavo size, strongly bound in cloth : — s. d. 
 
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 The Diary contains memoranda of Legal Business throughout the Tear. 
 
 " An excellent work."— 77(€ Times. 
 
 " A publication whicli has long ago secured to itself the favour of the profession, and 
 which, as heretofore, justifies by its contents the title assumed by it." — Lo.io Joui-nal. 
 
 " Contains all the information which could be looked for in such a work, and gives it 
 in a most convenient form and very completely. We may unhesitatingly recommend the 
 work to our readers."— Solicitors' Jouraal. 
 
 " The' Lawyers Companion and Diary' is a book that ought to be in the possession of 
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 ""The ' Lawyer's Companion ' is, indeed, what it is called, for it combines everything 
 required for reference in the lawyer's office." — LaiD Times. 
 
 " It is a book without which no lawyer's library or office can be complete." — Irith 
 Law Times. 
 
 " This work has attained to a completeness which is beyond all praise."— J/oj'n/jio 
 Post. 
 
 DICTIONARY — Student's (The) Pocket Law Lexicon, 
 or Dictionary of Jurisprudence. Explaining Technical Words 
 and Phrases used in English Law, together with a Literal Translation 
 of Latin Maxims. Fcp. Svo. 1882. 63. 
 
 " A wonderful little legal Dictionary." — InderDtaiir's Laic S/t'(h_nts' Journal. 
 " A very handy, complete, and useful little work." — Solm-dau Ei^ciw:, April S, 1SS2. 
 Wharton's La"W Lexicon. — A Diction.iry of Jurispru- 
 dence, explaining the Technical Words and Phrases employed in 
 the several Departments of English Law ; including the various 
 Legal Terms used in Commercial Transactions. Together with au 
 Explanatory as well as Literal Translation of the Latin Maxims 
 contained in the Writings of the Ancient and Modem Commentators, 
 Sixth Edition. Enlarged and revised in accordance with the 
 Judicature Acts, by J. SHIRESS WILL, of the Middle Temple, 
 Esq. , Barrister-at-Law. Super royal Svo. 1876. 2/. 2s, 
 
 " As a work of reference for the library, the handsome and elabwate edition of 
 ' Wharton's Law Lexicon ' which Mr. Shiress Will has produced must supersede all former 
 issues of that well-known work." — Laio Magazine and Review. 
 
 " No law library is complete without a law dictionary or law lexicon. To the practi- 
 tioner it is always useful to have at hand a book where, in a small compass, he can find . 
 an explanation of terms of infrequent occurrence, or obtain a reference to statutes on tr.oyt 
 subjects, or to books wherein particular subjects are treatea of at full lenprth."— iaw Times. 
 
 *»* AU standard Law Wo^'ks are kept in StocJc, m law calf and other bindings, 
 
 a4
 
 12 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 DIGESTS.— Bedford.— FkZc " Examination Guides." 
 Chanibers' — Vide "Public Health." 
 
 Chitty's Equity Index. — Chitty's Index to all the Reported 
 Cases, and Statutes, in or relating to the Principles, Pleading, and 
 Practice of Equity and Bankruptcy, in the several Courts of Equity 
 in England and Ireland, the Privy Council, and the House of Lords, 
 from the earliest period. Third Edition. By J. MACAULAY. 
 Esq., Barrister-at-Law. 4 vols. Royal 8vo. 185-3. 71. 7s. 
 
 Fisher's Digest of the Reported Cases deter- 
 mined in the House of Lords and Privy Council, and in the 
 Courts of Common Law, Divorce, Probate, Admiralty and Bank- 
 ruptcy, from Michaelmas Term, 1756, to Hilary Term, 1870 ; 
 with References to the Statutes and Rules of Court. Founded on 
 the Analytical Digest by Harrison, and adapted to the present 
 practice of the Law. By R. A. FISHER, Esq., Judge of the 
 County Courts of Bristol and of Wells. Five large volumes, royal 
 8vo. 1870. 121. 12s. 
 
 Consolidated Supplement to above, during the 
 years 1870—1880. By T. W. CHITTY and J. MEWS, Esqrs., 
 Barristers-at-Law. 2 vols. Royal 8vo. 1880. 31. 3s. 
 
 (Continued Annually.) 
 " Mr. Fisher's Digest is a wonderful work. It is a miracle of human industiy." — Mr. 
 Justice Willes. 
 
 "I tbink it would be very difficult to improve upon .Mr. Fisher's 'Co-nnion Law 
 Digest.'" — Sir .James Fitzjames Stephen, cr. Codification. 
 
 Godefroi. — Vide •' Trusts and Trustees." 
 Leake. — Vide " Real Property " and " Contracts." 
 Notanda Digest in Law, Equity, Bankruptcy, 
 Admiralty, Divorce, and Probate Cases. — By 
 H. TUDOR BODDAINI, of the Inner Temple, and HARRY 
 GREENWOOD, of Lincoln's Inn, Esqrs., Barristers-at-Law. 
 Third Series, 1873 to 1876 inclusive, half-bound. Net, ll.Ws. &d. 
 Ditto, Fourth Series, for the years 1877, 1878, 1879, 18S0, and 1881, 
 with Index. Each, net, 11. Is. 
 
 Ditto, ditto, for 1882. By H. TUDOR BODDAM and E. W. D. 
 MANSON, EsqvR., Barristers at-Law. Plain Copy and Two Indexes, 
 or Adhesive Copy for insertion in Text-Books (without Index). 
 Annual Subscription, payable in advance. Xet, 21s. 
 
 *^* The numbers are issued regularly every alternate month. 
 Each number contains a concise analysis of every case reported 
 in the Law Reforts, Law Journal, Weddy Reportei-, Law Times, and 
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 parts for the current month, with references to Text-books, Statutes, 
 and the Law Reports Consolidated Digest, and an alphabetical 
 INDEX of the subjects contained in each npmbee. 
 Pollock. — Vide " Partnership." 
 
 Roscoe. — Vide "Criminal Law " and " Nisi Prius." 
 DISCOVERY.— Hare's Treatise on the Discovery of 
 Evidence. — Second Edition. Adapted to the Procedure in the 
 High Court of Justice, with Addenda, containintj all the Reported 
 Cases to the end of 1876. By SHERLOCK HARE, Barrister-at- 
 Law. Post 8vo. 1877. 12s. 
 " The book is a useful contribution to our text-books on practice." — Solicitors' Journal. 
 " We have read his work with considerable attention aul mterest, and we cau speak in 
 terms of cordiil praise of the manner in which the uew procedure has been worked into 
 the old material. ... All the sections and orders of the new legislation are referred 
 to in the text, a synopsis of recent cases is given, and a good index completes the 
 volume." — Law Titites. 
 
 Seton.— Vide "Equity." 
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 DISTRICT REGISTRIES.-Archibald.— nrfe "Jiulges' Chamben 
 Practice." 
 
 DIVORCE.— Browne's Treatise on the Principles 
 and Practice of the Court for Divorce and 
 Matrimonial Causes:— With the Statutes, Rules. Fees 
 and Forms relating thereto. Fourth Edition. (Including the 
 Additional and Amended Rules, July, 1880.) By GEORGE 
 BROWNE, Esq., Barrister-at-Law. Demy Svo. 1880. 1^ 4*. 
 
 " The book is a clear, pi-actical, and, so far as we have been able to test it, accurate 
 
 exposition of divorce law and procedure." — Solicitors' Journa'. 
 
 Haynes.— Fic?e "Leading Cases." 
 
 DOMICIL. — Dicey on the Law of Domicil as a branch 
 of the Law of England, stated in the form of 
 Rules.— By A. V. DICEY, B.C.L., Barrister-at-Law. Author 
 of " Rules for the Selection of Parties to an Action." Demy 8vo. 
 1879. 18«. 
 
 " The practitioner will find the book a tlioroujjhly exact and trustworthy summary 
 
 of the present state of ibe law."— 77ie Spectator. 
 
 EASEMENTS.— Goddard's Treatise on the Law of 
 Easements.— By JOHN LEYBOURN GODDARD, Esq., 
 Barrister-at-Law. Second Edition. Demy 8vo. 1877. 16*. 
 
 "The b'Ok is invaluable: where the cases are silent the author has taken pains to 
 ascertain what the law would be if brought into question."— iau> Journal. 
 
 "Nowhere has the subject been treated so exhaustively, and, we may add, so scientifl- 
 cally, as by Mr. Goddard. We recommend it to the most careful study of the law student 
 as well as to the library of the practitioner."— Zatc Ti'ws. 
 
 ECCLESIASTICAL LAW. — Dcdd's Burial and other 
 Church Fees and the Burial Act, 1880 :— With 
 Notes. By J. THEODORE DODD, M.A., Barrister-at-Law, of 
 Lincoln's Inn. Royal 12mo. 1881. is. 
 
 Phlllimore's (Sir R.) Ecclesiastical Law. — The 
 Ecclesiastical Law of the Church of England. With Supplement, 
 containing the Statutes and Decisions to end of 1875. By SiB 
 ROBERT PHILLIMORE, D.C.L., Official Principal of the Arches 
 Court of Canterbury ; Member of Her Majesty's Most Honourable 
 Privy Council. 2 vols. 8vo. 1873-76. Zl. Is. Qd. 
 
 *^* The Supplement may be had separately, price is. 6d., sewed. 
 
 ELECTIONS- — Browne (G. Lathom.) — Fit^ " Registration." 
 FitzGerald.— Fide "Ballot." 
 
 Rogers on Elections, Registration, and Election 
 Agency. — Thirteenth Edition, including Petitions and Muni- 
 cipal Elections and Registration. With an Appendix of Statutes 
 and Forms. By JOHN CORRIE CARTER, of the Inner Temple, 
 Esq., and Midland Circmt, Ban-ister-at-Law. Royal 12mo. 1880. 
 
 1^. 12«. 
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 subject ; and the statutes passed since the last edition are explained down to the 
 Parliamentary Elections and Corrupt Practices Act (18S0)." — T/ie Times. 
 
 " We have no hesitation in commending the book to our readers as a useful and 
 adequate treatise upon election law." — SoliHton' Journal. 
 
 " A book of long standing and for information on the common law of elections, of 
 which it contains a mine of extracts from and references to the older authorities, 
 will always be resorted to." — Laic Journal 
 
 EMPLOYERS' LIABILITY ACT.— Smith.— F/rfc "Negligence." 
 ENGLAND, LAWS OF,— Bo wye r.— Fide " Constitutional Law." 
 Broom and Hadley. — Ftrfe " Commentaries." 
 
 *,* All standard Law Worlcs are kept in Stocl',in lavj calf and other hindingt.
 
 14 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 EQUITY, and Vide CHANCERY. 
 
 Seton's Forms ot Decrees, Judgments, and 
 Orders in the High Court of Justice andCourts 
 of Appeal, having especial reference to the Chancery Division, 
 with Practical Notes. Fourth Edition. By K. H. LEACH, Esq., 
 Senior Kegistrar of the Chancery Division ; F. G. A. WILLIAMS, 
 of the Inner Temple, Esq. ; and the late H. W. MAY, Esq. ; suc- 
 ceeded by JAMES EAST WICK, of Lincoln's Inn, Esq., Barristers- 
 at-Law. 2 vols, in 3 parts. Royal 8vo. 1877—79. 4^. 10«. 
 
 *^* Vol. II., Parts 1 and 2, separately, price each \l. 10s. 
 "The Editors of tliis new eilition of Seton deserve much pi-aise for what is almost if 
 not absohitely, an innovation in law books. In treating of any division of theirsubject 
 they have put prominently forward the result of the latest decisions, settling the law 
 so far as it is ascertained, thus avoiding much useless reference to older cases. . . . 
 Tliere can be no doubt that in a book of practice.like Seton, it is much more important 
 to be able to see at once what the law is than to know how it has become what it is ; 
 and the Editors have evidently taken great pains to carry out this principle in pre- 
 senting the law on each division of their laboars to their readers." — The Times. 
 
 " Of all the editions of ' Seton ' this is the best. . . . We can hardly speak too 
 highly of the industry and intelligence which have been bestowed on the preparation 
 of the notes." — Solicitors' Journal. 
 
 " Now the book is before us complete ; and we advisedly say complete, because it 
 has scarcely ever been our fortune to see a more complete law book than this. Exten- 
 sive in sphere, and exhaustive in treatise, comprehensive in matter, yet' apposite in 
 details, it presents all the features of an excellent work . . . The index, extend- 
 ing over 278 pages, is a model of comprehensiveness and accuracy." — Law Journal. 
 
 Smith's Manual of Equity Jurisprudence.— 
 A Manual of Equity Jurisprudence for Practitioners and Students, 
 founded on the Works of Story, Spence, and other writers, and on 
 more than a thousand subsequent cases, comprising the Fundamental 
 Pi-inciples and the points of Equity usually occurring in General 
 Practice. By JOSIAH W. SMITH, B.C.L., Q.C. Thirteenth 
 Edition. 12mo. 1880. 12s. M. 
 
 "There is no disguising the truth ; the proper mode to use this book is to learn its pages 
 by heart." — Law Magazine and Review. 
 
 " It will be found as useful to the practitioner as to the BixiAtni.'"— Solicitors' Journal. 
 
 Sniith's Practical Exposition of the Principles 
 
 of Equity, illustrated by the Leading Decisions thereon. For 
 
 the use of Students and Practitioners. By H. ARTHUR SMITH, 
 
 M.A., LL.B., of the Middle Temple, Esq., Barrister-at-Law. Demy 
 
 8vo. 1882. 20s. 
 
 "In a moderately-sized volume, such as no lawyer who has his own advantage in 
 
 view could object to 'read, mark, leam, and inwardly digest,' Mr. Smith sets forth 
 
 succinctly and in due order all the fundamental principles administered by Courts of 
 
 Equity, showing how they have by recent enactment been engrafted on the Common 
 
 Law, and carefully abstaining from overlaying his subject-matter with multifarious 
 
 details of practice which might tend to confuse and mj'stify. . . . Writing as he 
 
 does for practising lawyers and students, he sees plainly enough that what such 
 
 people want to know is, what things are, not what they have been, or how they came 
 
 to be what they are. . . . We must again state our opinion that this is a most 
 
 remarkable book, containing in a reasonable si^ace more information, and that 
 
 better arranged" and conveyed, than almost any other law book of recent times which 
 
 has come under our notice." — Sntanlay Rtvicio, July 8, 1882. 
 
 EXAMINATION GUIDES — Bedford's Guide to the Pre- 
 liminary Examination for Solicitors. — Fourth 
 Edition. 12mo. 1874. Net, 3«. 
 
 Bedford's Digest of the Preliminary Examina- 
 tion Questions in Latin Granimar, Arith- 
 nietic, French Grammar, History and Geo- 
 graphy, with the Answers. Second Edition. DemySvo. 1882. 18s. 
 
 Bedford's Preliminary Guide to Latin Grann- 
 mar.— 12mo. 1872. Net, 3s. 
 
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 119, CHAN CERY LANE, L ONDON, W.C. 15 
 
 EX AMWATIO^GU IDES. -Coniinuerf: ~ 7 7^^ ~ 7 
 
 Bedford's Student's Guide to Smith on Con- 
 tracts. Demy 8vo. 1879. 3s. Qd. 
 Bedford's Final Examination Guide to Bank- 
 ruptcy.— Fourth Edition. (In preparation.) 
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 of Stephen's Ne^AA Commentaries on the Laws 
 of England.— Second Edition. Demy 8vo. 1881. 12s. 
 " Here is a book which will bo of the gi-eutest service to students. It reduces the 
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 the author credit, not only for his selection of questions, but for his answers thereto. 
 These are models of fulness and conciseness, and lucky will be the candidate who can 
 hand in a paper of answers bearing a close resemblance to those in the work before 
 us," — Law Journal. , , 
 
 Bedford's Final Examination Digest : contaimng a 
 Digest of the Final Examination Questions in matters of Law and 
 Procedure determined by the Chancery, Queen's Bench, Comn.on 
 Pleas, and Excheqiier Divisions of the High Court of Justice, and 
 on the Law of Real and Personal Property and the Practice of 
 Conveyancing, with the Answers. Svo. 1879. 16s. 
 
 " Will furnish students with a large armoury of weapons with which to meet the 
 attacks of the examiners of the Incorporated Law Society."— i<l(y Times. 
 
 Shear^AAood's Student's Guide to the Bar, the 
 
 Solicitor's Intermediate and Final and the 
 
 Universities Law Examinations.— With Suggestions 
 
 as to the books usually read, and the passages therein to which 
 
 attention should be paid. By JOSEPH A. SHEARWOOD, B.A., 
 
 Esq., Barrister-at-law, Author of " A Concise Abridgment of the 
 
 Law of Real Property," and "Personal Property," &c. 8vo. 1879. 5s. 6d. 
 
 " Any student of average inielligence who conscieutiously follows the path and obeys the 
 
 instructions given him by the author, need not fear to present himself as a candidate 
 
 for any of the examinations to which this book is intended as a guide."— iaw Journal. 
 
 EXECUTORS.— Macaskie's Treatise on the Law of 
 Executors and Administrators, and of the Adminis- 
 tration of the Estates of Deceased Persons. With an Appendix 
 of Statutes and Forms. By STUART CUNNINGHAM MA- 
 CASKIE, of Gray's Inn, Esq., Barrister- at-Law. 8vo. 1881. 10s. 6d 
 "We desu-e specially to draw the attention of stiidents of the Inns of Court to Mr. 
 
 Macaskie's Treatise, as containing an able summary of the law of administration, now 
 
 forming one of the subjects set for the general examination for call to the bar.' _ 
 " Students may read the book with advantage as an introduction to 'Williams, and 
 
 by practitioners not possessing the larger work it will undoubtedly be found 
 
 useful." — Law Journal, March 5, 18S1. 
 
 Williams' La^w of Executors and Adminis- 
 trators.— By the Rt. Hon. Sir EDWARD VAUGHAN 
 WILLIAMS, late one of the Judges of Her Majesty's Court of 
 Common Pleas. Eighth Edition. By WALTER VAUGHAN 
 WILLIAMS and ROLAND VAUGHAN WILLIAMS, Esqrs., 
 Barristers-at-Law. 2 vols. Royal Svo. 1879. 3Z. 16s. 
 
 " A treatise which occupies an unique position and which is recognised by the 
 
 Bench and the profession as having paramount authority in the domain of law witU 
 
 which it deals." — Law Journal. 
 
 FACTORS.— Cavanagh.—FttZe "Money Securities. 
 
 FACTORY ACTS.— Notcutt's Law relating to Factories 
 and V/orkshopS. Second Edition. 12mo. 1879. 9s. 
 
 FARM, LAW OF.— Addison ; Cooke.— FicZe "Agricultural Law." 
 Dixon's Lav/ of the Farm.— A Digest of Cases connected 
 with the Law of the Farm, and including the Agricultural Customs of 
 England and Wales. Fourth Edition. (Including the "Ground Game 
 Act, 1880.") By HENRY PERKINS, Esq., Barrister-at-Law and 
 Midland Circuit. Demy Svo. 1879. 1?> 6s. 
 
 " it is impossible not to be struck with the extraordinary research that must have been 
 
 used in the compilation of such a book as this."— Xttio /ottrnaJ. ,. j. 
 
 * * All Standard Law Works are kept in Stock, in law calf and other bindmgt.
 
 16 STEVENS AND SONS" LAW PUBLICATIONS. 
 
 FINAL EXAMINATION DIGEST. -Bedford. —Firfc "Examination 
 
 Guides." 
 
 FOREIGN JUDGMENTS.— Piggott's Foreign Judgments 
 theireffect in the English Courts. The English 
 Doctrine, Defences, Judgments in Rena. 
 Status.— By F. T. PIGGOTT, M.A., LL.M., of the Middle 
 Temple, Esq., Barrister-.atLaw. Eoyal 8vo. 1879. los. 
 
 "A useful and well-timed volume." — Law Magaziiie. 
 
 "Mr. Piggott writes under strong conviction, but he is always careful to reBt his 
 arguments on authority, and thereby adds considerably to the value of his handy volume.'' 
 Law Moriozme and Review, November, 1870. 
 
 Part II.— The Effect of an Englisli Judgment 
 
 Abroad. Service on Absent Defendants. Royal 
 
 8vo. 1881. 15s. 
 
 "Mr. Piggott, in his present volume, brings together amass of details which it 
 
 would be difficult to find elsewhere in our legal literature stated in so concise and 
 
 accurate a form." — La}'- Mi':i"zine, May, 1881. 
 
 FORMS. — Archibald. — Vide "Judges' Chambers Practice." 
 
 Bullen and Leake. — Vide "Pleading." 
 
 Chitty's Forms of Practical Proceedings in 
 the Queen's Bench, Common Pleas and Ex- 
 chequer Divisions of the High Court of Jus- 
 tice: with Notes containing the Statutes, Rules and Practice 
 relating thereto. Eleventh Edition. By THOS. WILLES 
 CHITTY, Esq., Barrister-at-Law. Demy 8vo. 1879. 11. 18s. 
 
 Daniell's Forms and Precedents of Proceed- 
 ings in the Chancery Division of the High 
 Court of Justice and on Appeal therefrom ; 
 
 with Dissertations and Notes, forming a complete guide to the 
 
 Practice of the Chancery Division of the High Court and of the 
 
 Courts of Appeal. Being the Tliird Edition of " Daniell's Chancery 
 
 Forms." By WILLIAM HENRY UPJOHN, Esq., of Gray's 
 
 Inn, &c., &c. Demy 8vo. 1879. 21. 2s. 
 
 " Mr Upjohn has restored the volume of Chancery Fonns to the place it held before 
 
 the recent changes, as a trustworthy and complete collection of precedents." — Solicitors' 
 
 Journal. 
 
 " So careful is the noting up of the authorities, so clearly and concisely are the notes 
 expressed, that we have found it of as much value as the ordinary text books on the Judi- 
 cature Acts. It will be as useful a work to practitioners at Westminster as it will be to 
 those in Lincoln s Inn." — Law Times. 
 
 FRENCH COMMERCIAL LAW.-Goirand.-FicZe"CommercialLaw." 
 
 HIGHWAYS.-Baker's Law of Highways in England 
 
 and Wales, including Bridges and Locomotives. Comprising 
 
 a succinct code of the several provisions under each head, the 
 
 statutes at length in an Appendix ; with Notes of Cases, Forms, 
 
 and copious Index. By THOMAS BAKER, of the Inner Temple, 
 
 Esq., Barrister-at-Law. Royal 12mo. 1880. 15s. 
 
 " Tills is distinctly a well-planned book, and cannot fail to be useful, not only to 
 
 lawyers, but to those who may be locally engaged in the management of highways." — 
 
 Zato Journal. 
 
 " The general plan of Mr. Baker's book is good. He gi-oups together condensed 
 statements of the effect of'the provisions of the different Highway Acts relating to 
 the same matter, giving in all cases references to the .sections, which are printed in 
 full in the appendix. To each condensed section, or gi-oup of sections, he appends a 
 note, stating concisely the effect of the decisions." — Solicitors' Journal. 
 
 Chambers' Law relating to Highways and 
 
 Bridges, being the Statutes in full and brief Notes of 700 
 
 Leading Cases ; together with the Lighting Act, 1833. By GEO. 
 
 F. CHAMBERS, Esq., Barrister-at-Law. 1878. Reduced tol2s. 
 
 *^* All standard Law Works are kept in Stock, in law calf and other bindings.
 
 119, CHANCERY LANE, LONDON, W.C. 17 
 
 INJUNCTIONS.— Seton.— Ficie " Equity." 
 
 INLAND REVENUE CASES Highmore's Summary Pro- 
 ceedings in Inland Revenue Cases in England 
 and Wales. By NATHANIEL JOSEPH ItlGHMORE, of 
 
 the Middle Temple, Esq., Barri.ster-at-Law, and of the Inland 
 
 Revenue Department. Royal 12mo. 1832. 6s. 
 
 "A comijleto tre.itise nn prncedui-e apjilied to cases under the Revenue Aet. .and a.s 
 
 a book of iwactice it is the bjst wc li.ive sjon.' — TVie Justice of the Peace, Jan. 28,, 1882. 
 
 INSURANCE.— Arnould on the Law of Marine Insu- 
 rance.— Fifth Edition. By DAVID MACLACHLAN, Esq., 
 Barrister-at-Law. 2 vols. Royal 8vo. 1877. 31. 
 
 " As a text book, ' Arnould ' is now all the practitioner can want, and we congratulate 
 the editor upon the skill with which he has incorjiorated the new decisions."— 2,ato Tijne*. 
 
 Hopkins' Manual of Marine Insurance.— 8vo. 
 
 1867. 18s. 
 
 Lowndes on the Law of Marine Insurance. — 
 
 A Practical Treatise. By RICHARD LOWNDES. Author of 
 
 "The Law of General Average," &c. Demy 8vo. 1881. 10s. 6d. 
 
 "It is rarely, indeed, that we have been able to express such unqualified approval 
 
 »f a new legal work." — Solicitors' Journal, February 12th, ISSl. 
 
 INTERNATIONAL LAW — Amos' Lectures on Inter- 
 national La^Ar. — Delivered in the Middle Temple Hall to the 
 Students of the Inns of Court, by SHELDON AMOS, M.A., Pro- 
 fessor of Jm-isprudence (including International Law) to the Inns 
 of Court, &c. Royal 8vo. 1874. 10s. 6d. 
 
 Dicey. — Vide "Domicil." 
 
 Kent's International La"W. — Kent's Commentary on 
 
 International Law. Edited by J. T. ABDY, LL.D., Judge of 
 
 County Courts. Second Edition. Revised and brought down to 
 
 the present time. Crown 8vo. 1878. 10s. 6d. 
 
 "Altogether Dr. Abdy has performed his task in a manner worthy of hia reputation. 
 
 His book will be useful not only to Lawyers and Law Students, for whom it was primarily 
 
 intended, Dut also for laymen." — Solicitors' Journal. 
 
 Levi's International Commercial Law. — Being the 
 Principles of Mercantile Law of the following and other Countries 
 — viz. : England, Ireland, Scotland, British India, British Colonies, 
 Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, 
 Greece, Hans Towns, Italy, Netherlands, Norway, Portugal, Prussia, 
 Russia, Spain, Sweden, Switzerland, United States, and Wiirtemberg 
 By LEONE LEVI, Esq., F.S.A., F.S.S., Barrister-at-Law, &c. 
 Second Edition. 2 vols. Royal 8vo. 1863. II. 15s, 
 
 Vattel's Law^ of Nations.— By JOSEPH CHITTY, Esq. 
 Royal 8vo. 1834. U. is. 
 
 Wheaton's Elements of International Law; 
 
 Second English Edition. Edited with Notes and Appendix of 
 
 Statutes and Treaties, bringing the work down to the present time. 
 
 By A. C. BOYD, Esq., LL.B., J.P., Barrister-at-Law. Author of 
 
 " The Merchant Shipping Laws." Demy 8vo. 1880. 11. 10s. 
 
 " Mr. Boyd, the latest editor, has added many useful notes ; he has inserted in the 
 
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 " Both the plan and execution of the work before us deserves commendation. . . . 
 The text of Wheaton is presented without alteration, and Mr. Dana's numbering of the 
 sections is preserved. . . . The Index, which could not have been compiled without 
 much thouglit and labour, makes the book handy for reference." — Laio Joui-nal. 
 
 " Students who require a knowledge of Wheaton's text will find Mr. Boyd's volume 
 very convenient." — Law Magazine. 
 
 JOINT OWNERSHIP.-Foster.— FicZe "Real Estate." 
 
 *^j* All standard Laio Works are kept in Stock, in laio calf and other hlndinjs
 
 18 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 JOINT STOCKS.— Palmer.— Firfe "Conveyancing" and "Company 
 Law." 
 Thring's (Sir H.) Joint Stock Companies' La-w.— 
 
 The Law and Practice of Joint Stock and other Companies, including 
 the Companies Acts, 1862 to 1880, with Notes, Orders, and Eules in 
 Chancery, a Collection of Precedents of Memoranda and Articles of 
 Association, and all the other Forms required in Making, Administer- 
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 ment Act, The Life Assurance Companies Acts, and other Acts 
 relating to Companies. By Sir HENRY THPING, K.C.B., The 
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 GERALD, Esq., M.A., Barrister-at-Law, and late Fellow of St. 
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 "One of its most valuable featm-es is its collection of precedents of Memoranda and 
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 Jordan's Joint Stock Companies. — A Handy Book of 
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 JUDGES' CHAMBERS PRACTICE— Archibald's Forms of 
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 jurisdiction of the common law divisions, in the district registries, and at Judges 
 chambers." — Law Times. 
 
 "A clear and well-digested x'ade mecum, which will no doubt be widely used by the 
 profession.'' — Law Magazine. 
 JUDGMENTS.— Piggott.— Fi'c?c '-Foreig-n Judgments." 
 
 Walker's Practice on Signing Judgment in 
 
 the High Court of Justice. With Forms. By H. H. 
 
 WALKER, Esq., of the Judgment Department, Exchequer Division. 
 
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 " We think that solicitors and their clerks will find it extremely useful." — Lav; Journal. 
 JUDICATURE ACTS.— Archibald. — 7i(Ze " Common Law." 
 
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 and April, 1880. With Notes. By COURTENAY P. ILBERT, 
 
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 *^* A LARGE PAPEE EDITION (for marginal notes). Royal 8vo. 8s. 
 
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 1875. 4s. 6d. 
 
 S^Arain's Complete Index to the Rules of the 
 
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 "An almo.st indispensable addition to the recently issued rules."— Solicitois' 
 
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 f
 
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 dVD\CAT\}RE ^C^S. -Continued. 
 
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 Appellate Jurisdiction Act, 1876, Rules of 
 
 Court and Forms. With other Acts, Orders, Rules and 
 
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 Third Edition. By M. D. CHALMERS, of the Inner Temple. 
 
 Assisted by HERBERT LUSH-WILSON, of the Inner Temple, 
 
 Barristers-at-Law. Royal 12mo. 1882. (pp. 850.) 25s. 
 
 OPINIONS OF THE PRESS ON THE THIRD EDITION. 
 
 ■ • This edition maintains the position of its predecessors."— if-M" Journal, July 22,1 SS2. 
 
 "Numerous as have been the publications dealing with the practice vuider the 
 
 Judicature Acts, this volume has retained its hold and is the popular practice."— iaw 
 
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 " We have missed no case for which we have looked, and have found the effect of 
 the decisions stated with accuracy and terseness. . . . The index seems to have 
 been entirely remodelled, and is very convenient and well arranged."— Solicitors 
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 " This well known book, which has been from the first a general favourite in the 
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 pages, and Mr. Lush-Wilson, to whose pen we have ourselves been indebted for 
 contributions, have devoted themselves with zeal to the task set before them. The 
 result cannot but enhance the already widely acknowledged vahie of Wilson's 
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 although necessary additions have been made in several important p.articulars, 
 the book has skilfuUy been kept within a most moderate compass, so that Wilson's 
 ' Judicature Acts ' remains what it always was, one of the most handy as well as 
 one of the best appreciated editions of the Acts."— Zai« Magazine, August, 1SS2. 
 
 JURISPRUDENCE Phillimore's (J. G.) Jurisprudence.— 
 
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 JUSTINIAN, INSTITUTES OF -Cumin.— Fide "Civil Law." 
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 of JOHN BLOSSETT MAULE, Esq., Q.C. The Thirtieth Edition. 
 Five large vols. 8vo. 1869. (Published at 71. 7s.) Net, 21. 2s. 
 
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 &c. Demy 8vo. 1882. 25s 
 
 " A very creditable effort has been made to condense and abridge, which has been 
 
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 Wigram's The Justices' Note Book.— By W. KNOX 
 WIGRAM, Esq., Barrister-at-Law, J.P. Middlesex. Second Edi- 
 tion. With a copious Index. Royal 12rao. 1881. 128.60?. 
 " We have found iu it all the information which a Justice can require as to recent 
 legislation."— r/iC Times. 
 
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 ledge "—Solicitors' Journal. 
 
 "This is altogether a capital book. Mr. Wigram is a good lawyer and a good 
 justices' lawyer."— Zajf Journal. 
 
 " We can thoroughly recommend the volume to magistrates."— Znw Times. 
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 20 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 LAND ACT.— 5t'e "Settled Estates."— Middleton. 
 
 LANO TAX. — Bourdin's Land Tax. — An Exposition of the 
 Land Tax ; its Assessment and Collection, with a statement of the 
 rights conferred by the Redemption Acts. By MARK A. BOUR- 
 DIN (late Registrar of Land Tax). Second Edition. 1870. 4s. 
 
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 and Tenant. — With a full Collection ot Precedents and 
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 &c. Royal 8vo. 1881. 1^ 18s. 
 
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 LANDS CLAUSES ACTS.— Jepson's Lands Clauses Con- 
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 ARTHUR JEPSON, Esq., Barrister-at-Law. Demy 8vo. 1880. 18s. i 
 
 " The work concludes with a number of forms and a remarkably good index." — | 
 
 Law Times. I 
 
 " As far as we h.ave been able to discover, all the decisions have been stated, and 4 
 
 the effect of them eon-ectly given." — Law Journal. j 
 
 " We have not observed any omissions of cases of importance, and the puiport T 
 
 of the decisions we have examined is fairly well stated. The costs under the Acts ^ 
 
 are given, and the book contains a large niunljer of forms, which will bo found , 
 
 useful." — SoHcilo\-s' Jotirna'. , 
 
 LAW, GUIDE TO. — A Guide to the Law: for General Use. ■ 
 
 By a Ban-ister. Twenty-third Edition. Crown 8vo. 1880. Net, 3s. 6rf. ; 
 
 " Within a marvellously small compass the author has condensed the main provi- 
 sions of the law of England, applicable to almost every transaction, matter, or thing ^ 
 incidental to the relations between one individual and another." J 
 LAW LIST. — Law List (The). — Comprising the Judges and Officers j 
 (if the different Courts of Justice, Counsel, Special Pleaders, 1 
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 and Wales ; the Circuits, Judges, Treasurers, Registrars, and High 
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 in England under Certificates obtained in Scotland. So far as 
 relates to Special Pleaders, Draftsmen, Conveyancers, Solicitors, 
 Proctors and Notaries. Compiled by WILLIAM HENRY 
 COUSINS, of the Inland Revenue Office Somerset House, 
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 and Published by the Authority of the Commissioners of Inland 
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 LAW REPORTS. — A very large Stock of second-hand and new Reports. 
 
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 LAWYER'S COMPANION.— Fic^e "Diary." 
 
 LEADING CASES.— Haynes' Student's Leading Cases. 
 Being some of the Principal Decisions of the Courts in Constitutional 
 Law, Common Law, Conveyancing and Equity, Probate, Divorce, 
 Bankruptcy, and Criminal Law. With Notes for the use of Students. 
 By JOHN F. HAYNES, LL.D., Author of "The Practice of the 
 Chancery Division of the High Court of Justice," "The Student's 
 Statutes," &c. Demy 8vo. 1878. 16s. 
 
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 clear, pointed and concise." — Law 7i,net. 
 
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 LEADING CkSES,-Coniinued. 
 
 Shirley's Leading Cases made Easy. A Selection 
 of Leading Cases in the Common Law. By W. SHIRLEY SHIR- 
 LEY, M.A., B.C.L., Esq., Barrister-at-Law, Second Edition. 
 
 (//( prcparatwii.) 
 "The selection is very large, though all are distinctly 'leading cases,' and the notes 
 are by no means the least meritorious part of the work." — Lav: Jouriiat. 
 
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 about." — Law Timet. 
 
 LEGACY DUTIES.— HcZe "Taxes on Succession." 
 LEXICON.— Ficie "Dictionary." 
 
 LIBEL AND SLANOER.-Odgers on Libel and Slander.— 
 A Digest of the Law of Libel and Slander, with the Evidence, Pro- 
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 . . . So good is the hook, which in its topical arrangemsnt is vastly 
 superior to the general run of la-v hook?, that criticism of it is a compli- 
 ment rather than the reverse." — Law Journal. 
 
 '■The excuse, if one be needed, for another book on Libel and Slander, and that an 
 English one, may be found in the excellence of the author's work. A clear head and 
 a skilled hand ai'e to be seen throughotit." — Extrart frora Prrface to American reprint 
 
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 Museums and Literary and Scientific Insti- 
 tutions generally. Second Edition. By C F. CHAM- 
 BERS, Barrister-at-Law. Imperial Svo. 1879. %s. M. 
 LICENSING.— Lely and Foulkes' Licensing Acts, 
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 with Notes to the Acts, a Summary of the Law, and an Apjjendix 
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 LIFE ASSURANCE.— Scratchleys Decisions in Life As- 
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 LIQUIDATION BY ARRANGEMENT.— Salaman's Practical 
 Treatise on Liquidation by Arrangenient and 
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 Receivers, Injunctions, Meetings of Creditors, &c. ; all the Autho- 
 rised and Original Forms, Bills of Costs under Liquidation and 
 Composition; Note.s of Cases; the Sections of the Bankruptcy and 
 Debtors' Acts; and the Rules applicable to Liquidation and Com- 
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 Bankruptcy Law of 1860." Re-issue. Crown Svo. 1882. 10s. 
 
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 and Recent Decisions, the Statutes and General Orders, Forms and 
 Costs of Proceedings in Lunacy, an Index and Schedule of Cases. 
 Sixth Edition. By JOSEPH ELMER, of the Office of the 
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 22 STEVENS AND SONS' LAW PUBLIC ATIONS. 
 
 MAGISTERIAL L^Vf.— Burn.— Vide "Justice of the Peace^" 
 
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 Law, and on the Practice of Magistrates 
 Courts.— By W. SHIRLEY SHIRLEY, M.A., B.C.L., Esq., 
 Bamster-at-La^v. Author of " A Selection of Leading Cases in the 
 Common Law," "'A Sketch of the Criminal Law," &c. Eoyal 12mo. 
 18S1. 6s. 6d. 
 
 Wigva.m.— Vide "Justice of the Peace." 
 MAYOR'S COURT PRACTICE.— Candy's Mayor's Court 
 Practice.— The Jurisdiction, Process, Practice, and Mode of Plead- 
 ing in Ordinary Actions in the Mayor's Court, London (commonly called 
 the "Lord Mayor's Court"). Founded on Brandon. By GEORGE 
 CANDY, Esq., Barrister-at-Law. Demy 8vo. 1879. 14s. 
 
 "The 'ordiuary' practice of the Court is dealt with in its natural order, and is 
 Bimply and clearly stated." — Law Journal. 
 
 MARITIME COLLISION. -Lowndes.— Marsden.— nde "Col- 
 lision." 
 MERCANTILE LAW— Boyd.— FwZe "Shipping." 
 Russell. — Vide "Agency." 
 
 Smith's Compendium of Mercantile La^Ar. — Ninth 
 Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., 
 one of Her Majesty's Counsel. Royal 8vo. 1877. \l. 18s. 
 
 Tudor's Selection of Leading Cases on Mercan- 
 tile and Maritime La^A^.-With Notes. By O.D.TUDOR, 
 Esq., Barrister-at-Law. Second Edition. Royal 8vo. 1868. IZ. 18s. 
 METROPOLIS BUILDING ACTS-Woolrych's Metropolis 
 Building Acts, with Notes, Explanatory of the Sections and 
 of the Architectiiral Terms contained therein. Second Edition. By 
 NOEL H, PATERSON, Barrister-at-Law. 12mo. 1877. 8s. 6rf. 
 MINES.— Rogers' La^^^ relating to Mines, Minerals, 
 and Quarries in Great Britain and Ireland; 
 with a Summary of the Laws of Foreign States, &c. Second 
 Edition Enlarged. By ARUNDEL ROGERS, Esq., Judge of 
 County Courts. 8vo. 1876. II. lis. &d. 
 
 "The volume will prove invaluable as a work of legal reference." — Tlie Mining Joui-nal. 
 
 MONEY SECURITIES.— Cavanagh's Law of Money Secu- 
 rities. — In Three Books. I. Personal Securities. II. Securities 
 on Property. III. Miscellaneous; with an Appendix of Statutes. 
 By C. CAVANAGH, B.A., LL.B. (Lond.), of the Middle Temple, 
 Esq., Barrister-at-Law. In 1 vol. Demy 8vo. 1879. 21s. 
 
 "An admirable synopsis of the whole law and practice with regard to securities 
 
 of every sort We desire to accord it all praise for its completfeness 
 
 and general accuracy ; we can honestly say there is not a slovenly sentence from 
 beginning to end of it, or a single case omitted which has any material bearing on 
 the subject."— (Saturday Jieview. 
 
 "We know of uo work which embraces so much that is of every-day importance, nor 
 do we know of any author who shows more familiarity with his subject. The book is 
 one which we shall certainly keep cear at hatid, and we believe that it will prove a 
 decided acquisition to the practitioner."— ir^Mi Times. 
 
 MORTGAGE.— Coote's Treatise on the Lav^r of Mort- 
 gage. — Foiu-th Edition. Thoroughly revised. By WILLIAM 
 WYLLYS MACKESON, Esq., one of Her Majesty's Counsel. 
 In 1 Vol. (1436 pp.) Royal 8vo. 1880. 21. 2s. 
 
 " There can be no doubt that the work is most comprehensive in its scope and ex- 
 haustive in its treatment, and that it affords to the practitioner a mine of valuable 
 and trustworthy information conveniently arranged and clearly expressed." — Zaio 
 Mogazine, May, 1881. 
 
 "The book will be found a very valuable addition to the practitioner's library. 
 . . . . A complete, terse, and practical treatise for the modem lawyer." — Solicitors' 
 Journal, Janiiary 1, 1881. 
 
 "Mr. Mackeson's manner is clear and practical, and in many cases he suppliesuseful 
 summaries bj- way of recapitulation . . . The new edition of ' Coote on Mortgages' 
 will be found a valuable addition to the library of every jiractising lawyer." — Laio 
 Jcarnal, January 22, ISSl. 
 *»* All standard Law WorTcs are kept in Stock, in law calf and other hindings.
 
 119 , CHANCERY LANE, LONDON, W.C. 23 
 
 NAVY, — Thring's Criminal Law of the Navy, with an 
 
 Introductory Chapter on the Early State and Discipline of the Navy, 
 the Rules of Evidence, and an Appendix comprising the Naval 
 Discipline Act and Practical Forms. Second Edition. By 
 THEODORE THRING, of the Middle Temple, Barrister-at-Law, 
 late Commissioner of Bankruptcy at Liverpool, and C. E. GIFFORD, 
 Assistant-Paymaster, Royal Navy. 12mo. 1877. 12s. 6d. 
 
 " Tlie work is in everv way useful, ccmplete, and up to date." — Naval ^ Military Gazette. 
 
 NEGLIGENCE — Sniith's Treatise on the Law of 
 Negligence, A\'ith a Supplement containing "The Employers' 
 Liability Act, 18S0," -n-ith an Introduction and Notes. By HORACE 
 SMITH, B.A., Esq., Barrister-at-Law, Recorder of Lincoln, Editor of 
 " Roscoe's Criminal Evidence," &c. Demy 8vo. 1880. \Qs. Qd. 
 
 "The author has perfoi-med liis task with judgment and skill. . . A good 
 
 index is veiy valuable, and the book appears to us to be excellent in that respect." — 
 
 Solicitors' Journal, June 12, ISSO. 
 
 NISI PRIUS.— Roscoe's Digest of the La^A^ of Evidence 
 
 on the Trial of Actions at Nisi Prius. — Fourteenth 
 
 Edition. By JOHN DAY, one of Her Majesty's Counsel, and 
 
 MAURICE POWELL, Barrister-at-Law. Royal 12mo. 1879.21. 
 
 (Bound in one thick volume calf or circuit, 5s., or in two convenient vols, 
 
 calf or circuit, 9s. net, extra.) 
 
 " The task of adapting the old text to the new procedure was one requiring much 
 
 patient laboui, careful accuracy, and conciseness, as well as discretion in the omission of 
 
 matter obsolete or unnecessary. An examination of the bulky volume before us affords 
 
 good evidence of the possession of these qualities by the present editors, and we feel siu-e 
 
 that the popularity of the work will continue unabated under their conscientious care." — 
 
 Law Magazine. 
 
 Selwyn's Abridgment of the Law of Nisi 
 Prius.— Thirteenth Edition. By DAVID KEANE, Q.C., 
 Recorder of Bedford, and CHARLES T. SMITH, M.A., one of the 
 Judges of the Supreme Court of the Cape of Good Hope, 2 vols. 
 Royal 8vo. 1869. {Published at 21. 16s.) Net, 11. 
 
 NOTANDA.— F/cZe "Digests." 
 
 NOTARY. — Brooke's Treatise on the Office and Prac- 
 tice of a Notary of England. — With a full collection of 
 Precedents. Fourth Edition. By LEONE LEVI, Esq., F.S.A., 
 of Lincoln's Inn, Barrister-at-Law. 8vo. 1876. 11. is. 
 
 OATHS.— Braithwaite's Oaths in the SupremeCourts 
 of Judicature. — A Manual for the use of Commissioners to 
 Administer Oaths in the Supreme Courts of Judicature in England 
 and Ireland and of all other persons empowered to administer oaths 
 in aid of proceedings in courts of law. Part I. containing practical 
 information respecting their Appointment, Designation, Jurisdiction, 
 and Powers ; Part II. comprising a collection of officially recognised 
 Forms of Jurats and Oaths, with Explanatory Observations. 
 Fourth Edition. By T. W. BRAITHWAITE, of the Central 
 Office. Fcap. 8vo. 1881. 4s, 6d. 
 
 " The work wUl, we doubt not, become the recognised guide of commissioners to 
 
 administer o&Vas."— Solicitors' Jov.rnal. 
 
 PARISH LAW. — Steer's Parish Law; being a Digest of the 
 
 Law relating to the Civil and Ecclesiastical Government of Parishes 
 
 and the Relief of the Poor. Fourth Edition. By W. H. MAC- 
 
 NAMARA, Esq., Barrister-at-Law. Demy 8vo. 1881. 16s. 
 
 " An exceedingly useful compeudium of Parish Law." — Lato Tiincs, February 5, ISSl. 
 
 PARTNERSHIP.— Pollock's Digest of the Law of Part- 
 nership. — Second Edition, with Appendix, containing an anno- 
 tated reprint of the Partnership Bill, 1880, as amended in Committee. 
 By FREDERICK POLLOCK, Esq., Barrister-at-Law, Author of 
 " Principles of Contract atLaw and in Equity."Demy8vo. 1880. 8s. 6d. 
 " Of the execution of the work, we can speak in terms of the highest praise. The 
 language is simple, courise, and clear ; aud the general propositions may bear com- 
 parison with those of Sir James Stephen."— iaw Magazine. 
 
 " Mr. PoUock's work appears eminently satisfactory . . . the book is praise- 
 worthy in design, scholarly and complete in execution." — Saturday Revieiv. 
 • * All standard Law Works are kept in Stock, in law cu>f and other bindings.
 
 24 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 PATENTS. — Hindmarch's Treatise on the Lav/ rela- 
 ting to Patents.— 8vo. 1846. 1«, Is. 
 Johnson's Patentees' Manual; being a Treatise 
 on the Law and Practice of Letters Patent, 
 especially intended for the use of Patentees 
 and Inventors.— By JAMES JOHNSON, Barrister-at-Law, 
 and J. H. JOHNSON, Solicitor and Patent Agent. Fourth Edition. 
 Thoroughly revised and much enlarged. Demy Bvo. 1879. 10s. 6d. 
 " A very excellent manual."— iato Times. 
 
 "The authors have not only aknowledgeof the law, but of the working of the law. Be- 
 .sides the table of cases there is a copious index to subjects." — Law Journal. 
 
 Thompson's Handbook of Patent Law of all 
 Countries.— Third Edition, revised. By WM. P. THOMPSON, 
 C.E. 12mo. 1878. Net, 2s. 6d. 
 
 PERSONAL PROPERTY.— Shearwood's Concise Abridg- 
 ment of the Law of Personal Property; showing 
 analytically its Branches and the Titles by which it is held. By 
 JOSEPH A. SHEARWOOD, of Lincoln's Inn, E.sq., Barrister-at- 
 Law, Author of " Concise Abridgment of Law of Real Property," 
 kc. Demy 8vo. 1882. 5s. Qd. 
 
 . . . " Will be acceptable to many .students, as giving them, in fact, a ready-made 
 
 note book." — Indermaur's Law Students' Journal, January, 1S.S2. 
 Smith. — Fide " Real Property." 
 
 PETITIONS.— Palmer. — Vide "Conveyancing." 
 Rogers. — Vide "Elections." 
 
 PLEADING. — Bullen and Leake's Precedents of 
 Pleadings, with Notes and Rules relating to Pleading. 
 Fourth Edition. Revised and adapted to the present Practice in 
 the Queen's Bench Division of the High Court of Justice. By 
 THOMAS J. BULLEN, Esq., of the Inner Temple, and CYRIL 
 DODD, Esq., of the Inner Temple, Barrister-at-Law. In 2 parts. 
 Part I. (containing (1) Introductory Notes on Pleading; (2) Forms 
 of Statements of Claun in Actions on Contracts and Torts, with 
 Notes relating thereto). Royal 12m o. 1882. IZ. 4s. 
 
 " Mr. Thomas Bullen and Mr. Cyril Dodd have done their work of adaptation 
 
 admirably. ' — Law Journal, Jan. 21, 1882. 
 
 POOR LAW.— Davis' Treatise on the Poor Laws. — Being 
 Vol. IV. of Burns' Justice of the Peace. 8vo. 1869. II. lis. 6d. 
 
 POWERS. — Farwell on Powers. — A Concise Treatise on 
 
 Powers. By GEORGE FARWELL, B.A., of Lincobi's Inn, Esq., 
 
 Barrister-at-Law. 8vo. 1874. 11. Is. 
 
 " We recommend Mr. Farwell'a book as containing within a small compass what would 
 
 otherwise have to be sought out in the pages of hvmdreds of confusing reports." — The Law. 
 
 PRINCIPAL AND AGENT.— Petgrave's Principal and 
 
 Agent. — A Manual of the Law of Principal and Agent. By 
 
 E. C. PETGRAVE, Solicitor. 12mo. 1857. 7s. 6d. i 
 
 Petgrave's Code of the Law of Principal and -y^ 
 
 Agent, with a Preface. 12mo. 1876. Net, sewed, 2s. 
 
 PROBATE. — Browne's Probate Practice : a Treatise on the 
 Principles and Practice of the Court of Probate, in Contentious and 
 Non-Contentiou3 Business. Revised, enlarged, and adapted to the 
 Practice of the High Court of .Justice in Probate business, with the 
 Statute of June, 1881. By L. D. POWLES, of the Inner Temple, 
 Barrister-at-Law. Including Practical Directions to Solicitors for 
 Proceedings in the Registry. By T. W. H. OAKLEY, of the Prin- 
 cipal Registry, Somerset House. 8vo. 1881. 1/. 10s. 
 
 " Thi.s edition will thus .supply the practitioners in both branches of the profession 
 
 with all the information that they may require in connection with the probate of 
 
 wilh5."— TVifi Tihun, Sept. 10, 1881. 
 
 " In its present form this is undoubtedly the most complete work on the Practice 
 
 of the Court of Probate This is strictly a practical book. No principle 
 
 of law, statute or form which c -uld be of service to the practitioner in the Probate 
 
 Division appears to have been omitted."— T/ic Laic Times, Sept. 17, 1881. 
 
 "* All Standard Lav; Works are kept in Stock, in law calf and other bindinffS.
 
 119, CHAMCERY LANE, LONDON, W.C. 25 
 
 PUBLIC HEALTH.— Chambers' Digest of the Law re- 
 lating to Public Health and Local Govern- 
 nnent. — With Notes of 1260 leading Cases. Various official 
 documents ; precedents of By-laws and Regulations. The Statutes 
 in full. A Table of Ofifences and Punishments, and a Copious 
 Index. Eighth Edition. Imperial 8vo. 1881. 11. lis. 
 
 Or, the above with the Law relating to Highways and Bridget. 21. 
 
 FitzGerald's Public Health and Rivers Pol- 
 lution Prevention Acts. — With Explanatory Introduc- 
 tion, Notes, Cases, and Index. By G. A. R. FITZGERALD, 
 Esq., Barrister-at-Law. Royal Svo. 1876. 11. Is. 
 
 PUBLIC MEETINGS.— Chambers' Handbook for Public 
 Meetings, including Hints as to the Summoning and Manage- 
 ment of them ; and as to the Duties of Chairmen, Clerks, Secretaries 
 and other Officials; Rules of Debate, &c., to which is added a Digest 
 of Reported Cases. By GEORGE F. CHAMBERS, Esq., Bar- 
 rister-at-Law. 12mo. 1878. Net, 2s. 6d. 
 
 QUARTER SESSIONS.— Leeming & Cross's General and 
 Quarter Sessions of the Peace. — Their Jurisdiction 
 and Practice in other than Criminal matters. Second Edition. By 
 HORATIO LLOYD, Esq., Recorder of Chester, Judge of County 
 Courts, and Deputy-Chairman of Quarter Sessions, and H. F. 
 THURLOW, Esq., Barrister-at-Law, Svo. 1876, 1^, Is. 
 
 Pritchard's Quarter Sessions. — The Jurisdiction, Practice 
 and Procedure of the Quarter Sessions in Criminal, Civil, and Appellate 
 Matters. By THOS. SIRRELL PRITCHARD, of the Inner Temple, 
 Esq., Barrister-at-Law, Recorder of Wenlock. 8vo, 1875, 21. 2s, 
 
 RAILWAYS.- Browne and Theobald's Law of Rail- 
 way Companies. — Being a Collection of the Acts and Orders 
 relating to Railway Companies, with Notes of all the Cases decided 
 thereon, and Appendix of Bye-Laws and Standing Orders of the 
 House of Commons. By J. H. BALFOUR BROWNE, of the 
 Middle Temple, Esq., Barrister-at-Law, Registrar to the Railway 
 Commissioners, and H, S, THEOBALD, of the Inner Temple, Esq., 
 Barrister-at-Law, and Fellow of Wadham College, Oxford, Demy 
 Svo. 1881. 1/. 12s. 
 
 "Contains in a very concise form the whole law of railways.'' — The Times, Sept. 
 15, 1881. 
 
 " A marvel of wide design and accurate aud complete fulfilment. . . A complete 
 and valuable repository of all the learning as to railway ma.t.teK."SatunUu/ Rtview, 
 April 8, 1882. 
 
 " As far as we have examined the volume the learned authors seem to have pre- 
 sented the profession and the public with the most ample information to be found, 
 whether they want to know how to start a railway, how to frame its bye-laws, how 
 to work it, how to attack it for iujui-y to person or property, or how to wind it up." 
 — Law Times. 
 
 "There can be no doubt that the book under review offers to the practitioner an 
 almost indispen.sable aid in aU cases of railway law and its kindred topics. No less 
 than seventy-five Acts, from the Carriers Act (1 WiUiam IV, c. 08), down to the 
 Employers' LiabiUty Act, passed on the Tth September, 1880, are set forth in chrouo- 
 logical order. Between the sections are intercaLated notes — often lengthy, though 
 concisely worded— setting forth the effect of all the decided cases to November, 
 1880. . . . The index, for which Mr. Montague Lush is responsible, is full aud 
 well executed." — Law Magazine, May, 1881. 
 
 Lely's Railw^ay and Canal Traffic Act, 1873.— 
 
 And other Railway and Canal Statutes ; with the General Orders, 
 
 Forms, and Table of Fees. By J. M. LELY, Esq. Post Svo. 1873. 8s. 
 
 *,* All standard Law Wm'ks are kept in Stock, in law calf and other bindings.
 
 26 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 RATES AND RATING.— Castle's Practical Treatise on 
 
 the La^^^ of Rating. By EDWARD JAMES CASTLE, of 
 
 the Inner Temijle, Esq., Barrister-at-Law. Demy 8vo. 1879. V.ls. 
 
 "Mr. Castle's book is a correct, exhaustive, clear and concise view of the law." — 
 
 LaAO Times. 
 
 Chambers' La^A^ relating to Rates and Rating ; 
 with especial reference to the Powers and Duties of Eate-Ievying 
 Local Authorities, and their Officers. Being the Statutes in full 
 and brief Notes of 550 Cases. By G. E. CHAMBEES, Esq., 
 Barrister-at-Law. Imp. 8vo. 1878. Reduced to 10s. 
 
 REAL ESTATE. — Foster's Law of Joint Ownership 
 and Partition of Real Estate. By EDWARD JOHN 
 FOSTER, M.A., late of Lincoln's Inn, Barrister-at-Law. 8vo. 
 1878. 10s. Qd. 
 
 REAL PROPERTY.— Greenv/ood's Recent Real Pro- 
 perty Statutes. Comprising those passed diuing the years 
 1874-1877 inclusive. Consolidated with the Earlier Statutes thereby 
 Amended. With Copious Notes, and a Supplement containing the 
 Orders imder the Settled Estates Act, 1878. By HARRY 
 GREENWOOD, M.A., Esq., Barrister-at-Law, 8vo. 1878. 10s. 
 " To students particularly this collection, with the careful notes and references to 
 
 previous legislation, will be of considerable value." — Laio Times. 
 
 Leake's Elementary Digest of the Law of Pro- 
 perty in Land. — Containing : Introduction. Part I. The 
 Sources of the Law.— Part II. Estates in Land. By STEPHEN 
 MARTIN LEAKE, Barrister-at-Law. 8vo. 1874. 11. 2s. 
 
 \* The above fc^nns a cornijlete Introduction to the Study of the Law of Real Property. 
 Shearwood'fa Real Property. — A Concise Abridgment 
 of the Law of Real Property and an Introduction to Conveyancing. 
 Designed to facilitate the subject for Students preparing for 
 Examination (incorporating the changes effected by the Convey- 
 ancing Act). By JOSEPH A. SHEARWOOD, of Lincoln's Inn, 
 Esq. , Barrister-at-Law. Second Edition. Demy 8vo. 1882. 7s. 6d. 
 "We heartily recommend the work to students for any examination on real pro- 
 perty and conveyancing advising them to read It after a perusal of other works and 
 shortly before going in for the examination." — Law Student's Journal. April 1, 18S2. 
 
 " A very useful httle work, particularly to students just before their examination." 
 —Gib.ion's Laic Mjfes, May, 1882. 
 
 " Excellently adapted to its purpose, and is in the present edition brought well 
 down to date."— Law Magazine, May, 1882. 
 
 " A very excellent specimen of a student's manual.'" — Law Journal, May20, 1882. 
 " Will be found useful as a stepping-stone to the study of more comprehensive 
 works." — Law Times, June 17, 1882. 
 
 Shelford's Real Property Statutes. — Eighth Edition. 
 By T. H. CARSON, Esq., Barrister-at-Law. 8vo. 1874. 11. 10s. 
 Srnith's Real and Personal Property. — A Com- 
 pendium of the Law of Real and Personal Property, primarily 
 connected with Conveyancing. Designed as a second book for 
 Students, and as a digest of the most useful learning for Practi- 
 tioners. By JOSIAH W. SMITH, B.C.L., Q.C. Eifth Edition. 
 2 vols. Demy 8vo. 1877. 21. 2s. 
 
 " He has given to the student a book which he may read over and over again with profit 
 and pleasure."— iato Timet. 
 
 "The work before us Mill, we think, be found of very great service to the practitioner."' 
 — Sohcitort' Journal. 
 
 REGISTRATION.— Brov/ne's(G.Lathom)Parliamentary 
 and Municipal Registration Act, 1878 (41 & 42 
 Vict. cap. 26) ; with an Introduction, Notes, and Additional 
 Eoims. By G. LATHOM BROWNE, of the Middle Temple, Esq., 
 Barrister-at-Law. 12mo. 1878, 6s. 6d. 
 
 Rogers — Vide " Elections." 
 
 *,* All standard Law WorJcs are Jcept in Stoclc, in law calf and other lindings. 
 
 I
 
 11 9, CHANC ERY LANE, LONDO N, W.C. ^ 
 
 REGISTRATION CASES.^^Hopv/ood. and Coltman's 
 
 Registration Cases.— Vol. L (1868-1872). Net,2L18s. Calf. 
 Vol. II. (1873-1878). Net, 21. 10s. Calf. 
 Coltman's Registration Cases. — Vol.1. Part I. (1879 
 -80). Net, 10s. Part IL (1880). Net, 3s. M. Part IIL (1881). 
 Net 9s. 
 
 ROMAN Law.— Cumin.— Fjc^e"Civn." 
 
 Greene's Outlines of Roman Law. — Consisting chiefly 
 of an Analysis and Summary of the Institutes. For the use of 
 Students. By T. WHITCOMBE GREENE, B.C.L., of Lincoln's 
 Inn, Barrister-at-Law. Third Edition. Foolscap 8vo. 1875. 7s. ^d. 
 Mears' Student's Gaius and Justinian. — The Text 
 of the Institutes of Gaius and Justinian, The Twelve Tables, 
 and the CXVII. and CXXVII. Novels, with Introduction and 
 Translation by T. LA.MBERT MEARS, M.A., LL.D., of the Inner 
 Temple, Barrister-at-Law. {This v:ork is a supplement to the same 
 authcn'^s Analysis of M. Ortolan's Roman Lav;.) Post 8vo. 1882. 18s. 
 Mears' Student's Ortolan. — An Analysis of M. Ortolan's 
 Institutes of Justinian, including the History and 
 GeneraHzation of Roman Law. By T. LAMBERT MEARS, 
 M.A., LL.D. Lond., of the Inner Temple, Barrister-at-Law, 
 Published by permission of the lateM. Ortolan. Post 8vo. 1876. 12s. Qd. 
 R U e g g . — Vide ' ' Justinian." 
 
 SAUNDERS' REPORTS.— Williams' (Sir E. V.) Notes to 
 Saunders' Reports. — By the late Serjeant WILLIAMS. 
 Contmued to the present tune by the Right Hon. Sir EDWARD 
 VAUGHAN WILLIAjMS. 2 vols. Royal 8vo. 1871. 21. 10s. 
 
 SETTLED ESTATES AND LAND ACTS.— Middleton's Settled 
 Estates Act, 1877, and the Settled Estates Act 
 Orders, 1878, and Settled Land Act, 1882, with In- 
 troduction, Notes and Forms. Third Edition. By JAMES W. MID- 
 DLETON, B.A., of Lincoln's Inn, Barrister-at-Law. [In the press.) 
 
 SHERIFF LAW Churchill's Law of the Office and 
 
 Duties of the Sheriff, with the Writs and Forms relating 
 
 to the Office. Second Edition. By CAMERON CHURCHILL, 
 
 B.A., of the Inner Temple, Barrister-at-Law. Demy 8vo. 1882. 11. is. 
 
 " A very complete trea.tise."~Solicilors' Journal, March 25, 18S2. 
 
 " The treatise is, as far as we can ascertain, completely exhaustive, and comprises 
 
 statutes and cases to the date of publication ' — Zate Tiims. June o, 18S2. 
 
 " Under-sherifts, and lawyers generally, vrill find this a useful book to have by them, 
 
 both for perusal and reference." — Law Magazine. 
 
 SHIPPING, and vide " Admiralty." 
 
 Boyd's Merchant Shipping Laws; being a Consolida- 
 tion of all the Merchant Shipping and Passenger Acts from 1854 to 
 1876, inclusive ; with Notes of all the leading English and American 
 Cases on the subjects affected by Legislation, and an Appendix j 
 forming a complete Treatise on Maritime Law. By A. C. BOYD, 
 LLB., Esq., Barrister-at-Law. 8vo. 1876. 1?. 5s. 
 
 " We can recommend the work as a very useful compendium of shipping law." — Lair Timst. 
 
 Foard's Treatise on the Law of Merchant 
 Shipping and Freight.— By JAMES T. FOARD, Bar- 
 rister-at-Law. Royal 8 vo. 1880, Half calf, 11. Is. 
 
 SIGNING JUDGMENTS.— \A/alker.— Firfe "Judgments." 
 
 SLANDER.— Odgers.— FuZe "Libel and Slander." 
 
 SOLICITORS. — Cordery's La^?v relating to Solicitors 
 
 of the Supreme Court of Judicature.— With an 
 
 Appendix of Statutes and Rules. By A. CORDERY, of the Inner 
 
 Temple, Esq., Barrister-at-Law. Demy 8vo. 1878. 14s. 
 
 " Mr. Cordery writes tersley and clearly, and displays in general great industry and 
 
 care in the collection of cases.' — Solicitors' Journal. 
 
 *,* All standard Law Wwks are kept in Stock, in law calf and other bindings.
 
 28 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 SOLICITOR'S PRACTICE.— Archibald.— F/rfe "Common Law." 
 
 SPECIFIC PERFORM ANCE.— Fry's Treatise on the Specific 
 
 Performance of Contracts.— By the Hon. Sir 
 
 EDWARD FRY, one of the Judges of the High Court of Justice. 
 
 Second Edition. By the Author and W. DONALDSON 
 
 RAWLINS, of Lincohi's Inn, Esq., Banister-at-Law, M.A., and 
 
 late Fellow of Trin. Coll., Cambridge. Royal 8vo. 1881. 1/. 16s. 
 
 "So far as wu have been able to compare the second edition with the first, we 
 
 cannot bvit admit tliat the work has been much improved by the revision and re- 
 
 vriting of whicli this edition is the result." — Th Tim'.'', Sept. 10, 18S1. 
 
 "We have gone with some care through various portions of the work, and arc 
 satisfied that the reputation which Mr Justice Fry has acquired as a Judge is fully 
 sustained. His style is clear ; his method of treatment exhaustive. He has produced 
 a work which is excellent in itself and by far the best treatise upon the subject. 
 The index should not be passed over without a word of praise. It is extremely full 
 and satisfactory and reflects great credit upon Mr. Bawlins, to whom it is due." — 
 T/ie Law Times, Sept. 17, 1S81. 
 
 " The result of their joint labours is a work at once scientific and of directly prac- 
 tical utility, carefully brought down to date."— Z(((/- Mdimzlai: and Rcvkic, Nov. 1881. 
 
 STAMP LAWS.— Tilsley's Treatise on the Stanap 
 
 Laws.— 8vo. 1871. 18«. 
 
 STATUTE LAW.— AA^ilberforce on Statute Law.— The 
 
 Principles which govern the Construction and Operation of Statutes. 
 
 By EDWARD WILBERFORCE, of the Inner Temple, Esq., 
 
 Barrister-at-Law. Demy 8vo. 1881. 18«. 
 
 " Mr. Wilberforce's book bears throughout conspicuoas marks of research and care 
 
 in treatment." — Solicitors' Journal, February 5, 1S81. 
 
 "A useful work upo)\ a ditficult and complicated subject." — Loao Times. 
 
 STATUTES, and vide " Acts of Parliament." 
 
 Chitty's Collection of Statutes from Magna 
 
 Chartatol880 . — A Collection of Statutes of Practical Utility ; 
 
 arranged in Alphabetical and Chronological order, with Notes 
 
 thereon. The Fourth Edition, containing the Statiites and Cases 
 
 down to the end of the Second Session of the year 1880. By J. M. 
 
 LELY, Esq., Bai-rister-at-Law. In 6 very thick vols. Royal 8vo. 
 
 (8,346 pp.) 1880. 12?. 12s. 
 
 Supplement to ahove, 44 <£• 4,5 Vict. (1881). Royal 8fo. Seweel, 8s. 
 
 *,* This Edition is printed in larger type than former Editions, and 
 
 with increased facilities for Reference. 
 
 " It is needless to enlarge on the value of " Chitty's Statutes " to both the Bar and 
 to solicitors, for it is attested by the experience of many years .It only remains to 
 point out that Mr. Lely's work in bringing up the collection to the present time is 
 distinguished Ijy care and judgment. The difficulties of the editor were chiefly those 
 of selection and anangement. A very slight laxness of rule in including or excluding 
 certain classes of Acts woiUd materially affect the size and compendiousness of the 
 work. Still more important, however, is the way in which the mechanical difficulties 
 of arrangement arc met. The Statutes are compiled under sufficiently comprehensive 
 titles, in alphabetical order. Mr. Lely, moreover, supyilies us with three indices — 
 the first, at the head of each title, to the enactments cominised in it ; secondly, 
 an index of Statutes in chronological order ; and, lastly, a general index. By 
 these cross references research into eveiy branch of law governed by the Statutes is 
 made easy both for lawyer and layman." — The Times, November 13, 1888. 
 
 " A very satisfactory edition of a time-honoured and most valuable work, the trusty 
 guide of present, as of former judges, jurists, and of all others connected with the 
 administration or practice of the law."— Justice of the Peace, October 30, 1880. 
 
 " The practitioner has oulj' to takedown one of the compact volumes of Chitty, 
 and he has at once before him all the legislation on the subject in hand." — Solicitors' 
 Journal, November 0, 1880. 
 
 " ' Chitty ' is pre-eminently a friend in need. Those who do not possess a complete 
 set of the statutes turn to its chronological index when they wish to consult a par- 
 ticular Act of Parliament. Those who wish to know what Acts are in force with 
 reference to a particular subject tuni to that head in ' Chitty,' and !it once find all 
 the material of which they are in quest. Moreover, they aie, at the same time, 
 referred to the most important cases which throw light on tlie auhject."— Law Journal, 
 November 20, 1880. 
 *^* All standard Law Works are kept in Slock, in law calf and other bindings.
 
 119, CHANCERY LANE, LONDON, W.C. 29 
 
 ST ATUT ES— Continued. 
 
 •The Revised Edition of the Statutes, a.d. 1235- 
 1868, prepared under the direction of the Statute Law Committee, 
 published by the authority of Her Majesty's Government. In 15 
 vols. Imperial 8 vo. 1870-1878. 19^. 9s. 
 
 •Chronological Table of and Index to the Statutes 
 to the end of the Second Session of 1881. Eighth Edition, im- 
 perial 8vo. 1882. 15s. 
 
 •Public General Statutes, royal Svo, issued in parts and in 
 complete volumes, and supplied immediately on publication. 
 
 • Printed by Her Majesty's Printers, and Sold by Stevens & Sons. 
 
 SUMMARY CONVICTIONS.— Highmore.— Fi(/r » Inland Revenue 
 Cases." 
 Paley's Law and Practice of Summary Convic- 
 tions under the Summary Jurisdiction Acts, 
 1848 and 1879 ; including Proceedings preliminary and subse- 
 quent to Convictions, and the responsibility of convicting INIaoi- 
 strates and their Officers, with Forms. Sixth Edition. By W. H. 
 MACNAMARA, Esq.,Barrister-at-Law. Demy Svo. 1879. IZ. 4s, 
 "We gladly welcome this good edition of a good book." — Solicitors' Journal. 
 
 Templer's Sunnnaary Jurisdiction Act, 1879. — 
 Rules and Schedules of Forms. With Notes. By F. G. TEMPLER, 
 Esq., Barrister-at-Law. Demy Svo. 1880. 5s, 
 
 " We think this edition everything that could be desired." — Sheffield Post. 
 Wigram. — Vide "Justice of the Peace." 
 
 SUMMONSES AND ORDERS.— Archibald.— FitZe " Judges' Cham- 
 bers Practice." 
 
 TAXES ON SUCCESSION.-Trevor's Taxes on Succes- 
 sion.^ — A Digest of the Statutes and Cases (including those ia 
 Scotland and Ireland) relating to the Probate, Legacy and Succession 
 Duties, with Practical Observations and Official Forms. Completely 
 rearranged and thoroughly revised. By EVELYN FREETH 
 and ROBERT J. WALLACE, of the Legacy and Succession Duty 
 Office. Fourth Edition, containing full information as to the Altera- 
 tions made in the above Taxes by the 44 Vict. c. 12, and the Stamp 
 Duty thereby imposed on " Accounts." Royal 12mo. 1881. 12s.6d. 
 " Contains a great deal of practical information, which is likely to make it very 
 useful to solicitors." — Law Journal. 
 
 " The mode of treatment of the subject adopted by the authors is eminently prac- 
 tical." — Solicitors' Journal. 
 
 TITHES.— Burnell.— The London City Tithe Act, 1879, 
 and the other Tithe Acts effecting the Com- 
 mutation and Redemption of Tithes in the 
 City of London, with an Introduction and Notes, &c. By 
 HENRY BLOMFIELD BURNELL, B.A., LL.B., of Lincoln's 
 Inn, Esq., Barrister-at-Law. Demy 8vo, 1880. 10s. 6c?. 
 
 TORTS. — Addison on Wrongs and their Remedies.— 
 Being a Treatise on the Law of Torts. By C. G. ADDISON, Esq., 
 Author of " The Law of Contracts." Fifth Edition. Re-written. 
 By L. W. CAVE, Esq., M.A., one of Her Majesty's Counsel 
 (now one of the Judges of the High Court of Justice). Royal Svo. 
 1879. 1/. 18s. 
 
 " As now presented, this valuable treatise must prove highly acceptable to judges and 
 
 the profession." — Lauj Times. 
 " Cave's ' Addison on Torts ' will be recognized as an indispensable addition to every 
 
 lawyer's library." — Law Magazine. 
 
 Ball. — Vide "Common Law." 
 *^* All Standard Law Works arc kept in Stock, in law calf and other bindingi.
 
 30 ST EVENS AN D SO NS' LAW PUBLI CATION S. 
 
 TRADE MARKS.— Hardinghani's Trade Marks: Notes on 
 the Eritish, Foreign, and Colonial Laws relating thereto. Compiled 
 for the use of Manufacturers, Merchants, and (jthers interested iu 
 Commerce. By GEO. GATTON MELHUISH HARDINGHAM, 
 
 Assoc. Mem. Inst. C.E., Mem. Inst. M.E., Consulting Engineer and 
 Patent Agent. Ivoyal 12mo. 1881. 5s. 
 
 Sebastian on the Law of Trade Marks. — The 
 Law of Trade Mark.s and their llegistration, and matters connected 
 therewith, including a chapter on Goodwill. Together with Appen- 
 dices containing Precedents of Injunctions, &c. ; The Trade Marks 
 Kegistration Acts, 1875 — 7, the Rules and Instructions thereunder; 
 The Merchandise Marks Act. 1862, and other Statutory enactments; 
 The United States Statute, 1870 and 1875, the Treaty with the 
 United States, 1877 ; and the Rules and Instructions issued in 
 February, 1878. With a copious Index. By LEWIS BOYD 
 SEBASTIAN, B.C.L., M.A., of Lincoln's Inn, Esq., Barrister-at- 
 Law. 8vo, 1878. 14s. 
 
 " The Master of the Rolls in his judgment in Re Palmer's Trade Marks, said ' He was 
 glad to see that the wcll-kncjwu writer on trade marks, Mr. Sebastian, had taken the 
 same view of the Act.' " — The Times, May "i, 1882. 
 
 " The book cannot fail to be of service to a large class of law^^ers." — Solicitws' Journal. 
 " Mr. Sebastian has written the fullest and most methodical book on trade marks 
 which has appeared in England since the passing of the Trade Marks Registration 
 Acts." — Trade Marks. 
 
 " Viewed as a compnation,'the book leaves little to be desii-ed. Viewed as a treatise on 
 a subject of growing importance, it also strikes us as being well, and at any rate carefully 
 executed.'' — Law Journal. 
 
 Sebastian's Digest of Cases of Trade Mark, 
 Trade Name, Trade Secret, Goodwill, &c., de- 
 cided in the Courts of the United Kingdom, India, the Colonies, and 
 the United States of America. By LEWIS BOYD SEBASTIAN, 
 B.C.L., M.A., of Lincoln's Inn, Esq., Barriater-at-Law, Author of 
 "The Law of Trade Marks." Demy 8vo. 1879. IZ. Is. 
 
 " A digest which will be of very great value to all prastitioncrs who have to advise 
 on matters connected wdth trade marks." — Solicitors' Journal. 
 
 Trade Marks JournaL — 4to. Sewed. {Issued fm-tniyMy.) 
 
 Nos. 1 to 258 are now ready. Net, each Is. 
 
 Index to Vols, I. to VI. Each Net, 3», 
 
 TRUSTS AND TRUSTEES.— Godefroi's Digest of the 
 Principles of the Law of Trusts and Trus- 
 tees.— By HENRY GODEFROI, of Lincoln's Inn, Esq., 
 Barrister-at-Law. Joint Author of " Godefroi and Shortt's Law of 
 Railway Companies." Demy 8vo. 1879. 1^. Is. 
 
 " No one who refers to this book for information on a question within its range is, 
 we think, likely to go away unsatisfied." — Salurdo.y Revieu: 
 "Is a work of great Titility to the practitioner." — laiv Magazine. 
 " As a digest of the law, Mr. Godefroi's work merits commendation, for the author's 
 statements are brief and clear, and for his statements he refers to a goodly array of 
 authorities. In the table of cases the references to the several coutemporaneous 
 reports are given, and there is a very copious index to subjects." — Law Journal. 
 
 USES— Jones (W. Hanbury) on Uses.— 8vo, 1862. 7s. 
 
 VENDORS AND PURCHASERS Dart's Vendors and Pur- 
 chasers. — A Treatise on the Law and Practice relating to Ven- 
 dors and Purchasers of Real Estate. By J. HENRY DART, of 
 Lincoln's Inn, Esq.. one of the Six Conveyancing Counsel of the 
 High Court of Justice, Chancery Division. Fifth Edition. By 
 the AUTHOR and WILLIAM BARBER, of Lincoln's Inn, Esq., 
 Barrister-at-Law. 2 vols. Royal 8vo. 1876. M. 13s. 6d. 
 
 " A standard work like Mr. Dart's is beyond all praise." — ITie Law Journal. 
 
 "sTEVENS & SONS, 119, CHANCERY LANE, LONDON, W.C.
 
 119, CHANCERY LANE, LONDON, W.C. 31 
 
 VOLUNTEER L\W — A Manual of the La>Ar regulating 
 
 the Volunteer Forces. — Including the Voluntufi- Acts, 
 1863 to 1869, and other Acts relating to Volunteers. With Forms 
 of Complaint, Summons and Order, &c. By W. A. BURN" and 
 W. T. RAYMOND, Esqrs., Barrister.s-at-Law, and Captains in 
 H.M. Volunteer Forces. R)yal 12mo. 1832. 2s. 
 
 WATERS. — Woolrych on the Law of Waters. — Including 
 Rights in the Sea, Rivers, &c. Second Edition. 8vo. 1851. iVe^, 10s. 
 Goddard. — Vide "Easements." 
 WATERWORKS— Palnner.— Vide "Conveyancing." 
 
 WILLS,— Ra-wlinson's Guide to Solicitors on taking 
 Instructions for Wills.— 8vo. 1874. 4«. 
 
 Theobald's Concise Treatise on the Law of 
 Wills.— With Statutes, Table of Cases and Full Index. By H. 
 S. THEOBALD, of the Inner Temple, Esq., Barrister-at-Law, and 
 Fellow of Wadham College, Oxford. Second Edition. Demy 8vo. 
 1881. 11. is. 
 
 OPINIONS OF THE PRESS ON THE FIRST EDITION. 
 
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 labour, and clear exposition." — Law Magazine. 
 
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