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London University; B \\i^^^^^^^WJ Exhibitioner in Real Property and I \<^^^F^^A<^^7/ ^^^ '• J°'"' Author of "Gierke and 1 NsJ^^A^Si^^ir Acts, 1883;" and of " Leading CaS( ^N< ~g.2g^ >^ porated Law Society. %* The main ide d living law, and only to deal with past la y to enable the reader to understand the p The Laiu Jour, T TTS.TT\7ThD QTTV " ^^'* confidently to recommend these U IN i V I_.rVOi i l ict they will become deservedly popular. e, and we have little butpmise for the r ..^-vt^ /^^ A T T1~"/'^"n "\TT A • We are of opinion that Mr. Brett has ; BRETT'S ] Thomas Bret Brett's Convey Third Edition, of the Inner T " There is no bett of Courts of Equity Specially recomm THE LAW relates to the F Appendix of St: Circuit, Barriste THE REAi of the Land Tra By Amhekst D ] ^ THE LAW bitration Act, 1889. With No ., -- , ^»o»,3, «uv* an iimcx. Sccond Edition, Thoroughly Revised to date. By W. Outram Crewe, Solicitor, &c., with Honours H.T. 1866. "Meets a want which has been especially felt by those engaged in arbitration since the parsing of the Act." — La'M Times. Just published, Third Edition, crown 8vo., cloth, price 55. THE OFFICE OF MAGISTRATE. By Harold Wright, B.A., LL.B., of the Middle Temple, Barrister-at-Law, Stipendiary Magistrate for the Staffordshire Potteries, Author of " A 1 realise on the Bankruptcy Act, 1883," &c. "This little book contains a capital Epitome of the Duties of a Magistrate, written in popular language. It is full of practical hints and suggestions." — Law Times. Now ready. Second and greatly improved Edition, demy 8vo, cloth, 6^. THE ENGLISH DEATH DUTIES. A Table showing at a glance the incidence of the English Death Duties (the Probate, Legacy, Succession, Account, the Tem- porary Estate Duties, and the Estate Duties under the Finance Acts 1894 and 1896), with reference to the sections of Statutes imposing them, the Forms used in their payment, and at what date of death each or any become payable. With various useful notes and references to decisions. Designed as a means of easy and quick reference to these complicated duties. By E. H.\rris, of the Legacy and Succession Duty Department, Somerset House. IQUITY. By thor of "Gierke and ..aw Society, &c., &c. le, and J. M. Dixon, st important decisions I. SO far as it : Halls. With a full : and North Eastern " A practitioner's book, and to practitioners ... we can heartily commend it. —Lji{. THOMSON'S PRINCIPLES OF EQUITY, AND EQUITY PRACTICK OF THE COUNTY COURT: for the use of Practitioners in the Chancery Division of the High Court, and in the County Court. With Precedents of Particulars of Claim, Defences, Notices orMotion, Affidavits, ludgments, Orders, &c. By Andrbw Thomson, Esq., B.A., LL.D., Barristcr-at-L:iw ; formerly Lecturer and Reader on Equity to the Incorporated Law Society; and aUcruards jTofevi tx of Equity to the Inns of Court. Demy 8v.), cloth, 12 1. 6Y. ADMIRALTY JURISDICTION and PRACTICE IN COUNTY COURTS (A IREATISE ON THE. By Francis Wili.ia.m Raikks. LL.D. Cantab., of the Inner Temple, one of Her M.ijcsty's Counsel, and BuRLSiGH DuNBAR Kilulrn, M.A. Oxon., of the Inner Temple, Banistcr-.-itLaw. .Second Edition, royal Svo, i.too pages, cloth, 25^. THE PRINCIPLES OP RATING as applied to Railways, Docks, Tramways, Gas and Water Works, Coal and other Mines, Electric Lighting Works, Manufactories, and other Ilercdilamcnts. With a complete Digest of Cases and all the important Statutes dealing with Local Rating. By Edwako Bovi.r, of the Inner Temple, Barrister-at-Law, and G. Humihrkvs- Davibs, Fellow of the Surveyors' Institute, &c. Second Edition, thorouglily revised and enlarged, demy Svo, cloth, 12s. td. CONTEMPT OF COURT, Committal and Attachment and Arrest upon Civil Process, in the Supreme Court of Judicature. With the Practice and Forms. By Jambs Francis Oswald, Q.C, M.P. "There is no higher authority on the subject of contempt of court.. ..than .Mr. Oswald."— Z BRAfrB 0?« B^CTT -P^ Tilt mOORrORAT«P LAW FOCIITT; ANtt *rT«i«w*iiii« rB<«rit««r>« of wjcitt to tiir wns or oonrr AiTW>« or "A TuBAntB OH TUB riii*r.rLB« or tQvm and the tguiTT pkacticb or thi ctJorrT c«>orr. with i-bbcidixtj*." LONDON: WILLIAM CLOWES AND SONS. Limited, 27, FLEET STREET. 189D. T LONDON: PRINTED BY "WILLIAM CLOWES AND SONS, Limited, STAMFORD STBEET AND CHARINQ CROSS. ^ TO THE RIGHT HONORABLE HARDINGE STANLEY, EARL OF HALSBURY, LORD HIGH CHANCELLOR OF GREAT BRITAIN, Zbis motk IS, BY PERMISSION, MOST RESPECTFULLY DEDICATED BY THE AUTHOR. 783219 AUTHOR'S PREFACE. The favourable reception accorded by the Profession to the Author's previous Work — ' The Principles of Equity and The Equity Practice of the County Court ' — induced him to take the present Work in hand, with a view to supplying a want which appears to be felt by the Profession, of a treatise for use in the chambers of Equity Counsel and Solicitors' offices, on the various principles of Equity dealt with in their every-day piactice, in the Chancery Division of the High Court, With this view, the Author lias spared no pains in adapting the Book to the modern requirements of the Profession — avoiding as far as possible, reference to the obsolete principles of the Court of Chancery, except where necessary in order to elucidate the principles of modern Equity, as concurrently administered by all the Divisions of the High Court, under the Judicature Acts, and as otherwise altered and modified by Statute. The Work may, as to the subjects next enumerated, be taken as a second edition of the second part of the Author's former Work, referred to above, with the exception of the Precedents, namely. Trusts, Administration, the Married Women's Property Acts, Infants, Partition, Mortgages, Charges and Liens, Specific Per- formance and the Law of Vendors and Purchasers, the Eescission, Cancellation, and Delivery up of Agreements, Belief against Fraud and Mistake, and the Kectification of Settlements, and Partnership ; but the Work has, in relation as well to these as to the new Subjects, been brought up to date, having regard both to the decisions of the Courts, and to the course of current legislation, e.g. to the alterations made by the Judicial Trustees Act, 1896, and the Land Transfer Act, 1897 ; and a Table of Statutes has been added. The following subjects are new, namely. Conver- sion, Keconversion, Election, Satisfaction, Kepetition of Legacies, Donationes Mortis Causa, Performance, Belief against Penalties and Forfeitures, Injunctions (including the law of Trespass in relation to mining operations and otherwise. Waste, Obstruction of Light and other Nuisances, Patents, Trade Marks, and Copyright in Books, Registered Designs and otherwise), Assignment of Dower vi PREFACE. aud Settlement of Boundaries, Specific Delivery of Chattels, Account, Arbitration, Appropriation of Payments and Securities, Equitable Assignment, Principal and Surety, Lost Instruments, the aiding of the Defective Execution of a Power, and Fraud on a Power. The Author has, throughout the Work, dealt to some extent with the rules as to parties to actions, and with special points of practice, in cases where he has found it possible and convenient so to do, without unduly transgressing the limits of a work on the principles of Equity. The Index has been prepared with due regard to the Work being intended for use by the busy practitioner, and with a view to its enabling him to arrive at sound conclusions in the shortest possible time. It will be seen that in the Table of Cases, references are given to the various reports contemporary with the 'Law Eeports.' The Author has endeavoured, where practicable, to prevent the number of authorities from being oppressive, by omitting some of the earlier cases which have been noticed by the Courts in deciding later ones. Although the Work is primarily and essentially a book for practitioners, it is also intended as a text book on Equity Juris- pru lence for the use of Bar students, and of articled clerks, preparing for Honours at the Final Examination of the Incor- porated Law Society. The Author desires again to express his very sincere thanks to his friend Mr. J. A. Creed, of the Chancery Bar, for the kind assistance he has received from him, in having (without under- taking any responsibility for the accuracy of the law as propounded) perused the whole of the Work in manuscript. 3 New Square, Lincoln's Inn, November, 1898. In consequence of the sudden death of the learned Author on the 30th November, when the entire text of this Treatise -vvas printed in proof, and — with the exception of the chapters on Specific Performance, Kescissiou, Fraud, and Mistake — ready for press, these chapters have been revised, the Index and the Table of Statutes completed, and the most recent cases bearing on the text collected in the Addenda, by Mr. W. M. Crowdy, of the Chancery Bar, one of the Editors of ' Goodeve's Personal Property.' March, 1899. CONTENTS. Table of Casks . Table ok Statutes PAGES . xvii-cxv cxvii-cxxii CHArTKR I. IXTRODUCTOUy OliSEliVATIONS ON THE NaTUBE OF EqUITY 1-3 CHAPTER II. Trusts. ■Nature and rejuisites of a Trust — Different kinds of Trusts ..... ■Charitable Trusts Creation of Trusts — Precatory Trusts ■Unlawful Trusts ■Voluntary Trusts and Gifts, ... •Persons against ivhom Voluntary Settlements en forced. — Fraudulent Settlements -Executory and Executed Trusts ■Implied and Resulting Trusts Constructive Trusts ■Rights and Powers of Trustees ■Duties of Trustees ■ Liability of Trustees for Breach of Trust -Judicial Trustees Act, 189G ; — Relief against Breach of Trust ..... XIV.— Right to follow Trust Funds — Wrongful con version ....... XV.— Debtors' Acts . XVI.— Statutes of Limitation ztic m L- » IL- »» III.- 5> IV.- J> V.- 5> VI.- » VIL- » VIIL- » IX.- )> X.- >J XL- »> XIL- XIIL 4,5 6-8 9.10 10, 11 11-18 19-27 28-30 30-34 34-36 36-50 50-58 58-67 67-70 70-76 76-80 -80-83 Vlll CONTENTS. CHAPTER III. Conversion. Section I. — Cases where the Doctrine is applicable . ,, //. — Necessity for imj)eratiue direction, or binding con- tract for Conversion . ... . „ ///. — Time when Conversion takes effect PAGES 84-88 88-93 94,95 CHAPTER IV. Eeconvbrsion. Section I. — Bic/ht to elect against Conversion .... 96-100 J, //. — Reconversion under the Lands Clauses Consolidation Act, 1845, The Partition Acts, and the Settled Land Acts 100-103 ,, ///. — How Election may be made. . . . . 103-105 IV.— Who may electa. ...... 105-107 CHAPTER V. Election. Section I. — General Principles ...... 108-119 ^j II. — Election in connection with the Execution of Powers. ....... 119-124 „ III. — How Election may be made. .... 124-126 „ IV. — Election by persons under disability . . . 126-128 CHAPTER VI. Satisfaction;— Repetition of Legacies. Section I. — Ademption of Legacies by Portions . . . 129-134 J, II. — Satisfaction of Portions by Legacies . . . 134-140 ,, III. — Person in loco parentis ; — Legacy for a particular fiurpose ....... 140-142 J, J V. — AdmissibilitT/ of Extrinsic Evidence . . . 142, 143 ^^ v.— Satisfaction under the Statute 22 & 23 Car. 2, c. 10 (Distributions) 143, 144 „ VI. — Satisfactio7i of Debts by Ljcgacies .... 145-148 „ VLL — Repetition of Legacies . . . . .1 48-153 J, VILL. — Substituted and Additional Qifts liable to the Con- ditions of the Original if t . . . .153,154 CONTENTS. IX CBAPTER VII. Performance. Section I. — Covenant to purchase and settle Lands „ II. — Covenant to leave Personal Froperty PAGES 155-158 158-163 CHAPTER VIII. Administration. Section I. — Origin of Jurisdiction — Difference between office of Personal Representative and Trustee ....•-• „ II.— Payment of Debts and Liabilities— Legal and Equitable Assets ....•• „ ///. — Trust for payment of Debts , . . • „ IV. — Charge of Debts ...••• „ v.— Right of Executor or Administrator to prefer one Creditor to Another and to retain his own Debt „ VI.~Order of Application of Assets for Payment of Debts „ VII. — Secured Creditors ..... „ VIII. — Legacies and Annuities .... „ IX. — Donationes mortis causa .... „ X. — Marshalling of Assets ..... „ XL— The Powers, Duties, and Liabilities of Executors and Administrators . . . " . 164-166 166-172 172, 173 173-179 179-182 182-191 191 192-201 201-206 206-209 209-218 CHAPTER IX. Married Women ;— Married Women's Property Acts. Section I. — Equitable jurisdiction independently of Stattite . 219-227 II.— The Acts of 1882 and 1893. 227-237 CHAPTER X. Infants. Section I. — Jurisdiction ...... 11. — Rights of Father generally .... III.— Rights of Father as to Religious Education . IV. — Testamentary Guardian under 12 Car. 2, c. 24 v.— Ouardianship of Infajits Act, 1S86 VI. — Maintenance and Education VII. — Potvers of the Court over Wards 238, 239 239, 240 240-242 242 242-247 247-253 253-256 Vlll CONTENTS. CHAPTER III. Conversion. Section I. — Cases where the Doctrine is applicable . JI, — Necessity for imperative direction, or binding con- tract for Conversion , . . . . J J ///. — Time when Conversion takes effect PAGES 84-88 88-93 94,95 CHAPTER IV. Eeconveesion. Section I. — Right to elect against Conversion .... //. — Reconversion under the Lands Clauses Consolidation Act, 1845, The Partition Acts, and the Settled Land Acts. ....... ^^ 7/7. — How Election may be made. .... „ IV. — WJio may elect ? . ...... 96-100 100-103 103-105 105-107 CHAPTER V. Election. Section I. — General Principles ...... 108-119 77. — Election in connection with the Execution of Powers 119-124 „ 777. — How Election may be made. .... 124-126 ,, IV. — Election by persons under disability . . . 126-128 CHAPTER VI. Satisfaction;— Repetition of Legacies. Section I. — Ademption of Legacies by Portions . . . 129-134 ,, 77. — Satisfaction of Portions by Legacies . . . 134-140 III. — Person in loco parentis ; — Legacy for a particular purpose ....... 140—142 J, IV. — Admissibility of Extrinsic Evidence . . . 142,143 „ v.— Satisfaction under the Statute 22 & 23 Car. 2, c. 10 (Distributions) ...... 143, 144 ,, VI. — Satisfaction of Debts by Legacies . . . . 145-148 „ VIL — Repetition of Legacies ..... 148-153 jj VIII. — Substituted and Additional Gifts liable to the Con- ditions of the Original Gift .... 153,154 CONTENTS. IX CHAPTER VII. Performance. Section I. — Covenant to purchase and settle Lands „ II. — Covenant to leave Personal Property PAGES 155-158 158-163 CHAPTER VIII. Administration. Section I. — Origin of Jurisdiction — Difference between office of Personal Representative and Trustee 164-166 „ II. — Payment of Debts and Liabilities— Legal and Equitable Assets ...... 166-172 „ ///. — Trust for payment of Debts .... 172,173 „ IV.— Charge of Debts 173-179 „ V. — Right of Executor or Administrator to prefer one Creditor to Another and to retain his own Debt 179-182 „ VI. — Order of Application of Assets for Payment of Debts 182-191 M VII. — Secured Creditors ...... 191 n VIII. — Legacies and Annuities ..... 192-201 It /X — Donationes mortis causS ..... 201-206 X.— Marshalling of Assets 206-209 » XI. — The Powers, Duties, and Liabilities of Executors and Administrators . . . * . . . 209-218 CHAPTER IX. Married Women ; — Married Women's Property Acts. Section I. — Equital)le jurisdiction independently of Stattite . 219-227 IL—TheActsofim2.and\S%Z 227-237 CHAPTER X. Infants. Section I. — Jurisdiction ...... II. — Rights of Father generally .... III. — Rights of Father as to Religious Education . IV. — Testamentary Guardian under 12 Car. 2, c. 24 V. — Ouardianship of Infants Act, 188Q VI. — Maintenance and Education VII — Powers of the Court over Wards 238, 239 239, 240 240-242 242 242-247 247-253 253-256 CONTENTS. CHAPTER XI. Relief against Penalties and Forfeitures. Section I. — General Principles ; — Penalties under Bonds » II.— Distinction between a Penalty and Liquidated Damages . . ..... ,) TIL — Forfeiture of Lease for non-payment of Rent . J. IV- — Forfeiture for Breach of Covenant other than for Payment of Bent ...... » V. — Waiver of Forfeiture ...... » VI. — Penalties or Forfeitures under A'-t of Parliament . PAGES 257,258 258-263 263-266 266-276 276, 277 277, 278 CHAPTER XII. Injunctions. Section I. — Jurisdiction Generally. „ IL — Building Covenants . J, IIL — Covenants in Restrain t of Trade „ IV, — Trespass .... „ V.~Waste .... M VI. — Nuisance generally „ VII. — Obstruction of Light . » VI IL — Access of Air . )» IX. — Libel injurious to Trade „ X. — Patents .... „ XL — Trade Marks ,i XII. — Copyright. ,i XIIL— Copyright in Registered Designs 279-287 287-290 291-296 296-300 300-308 309-311 312-318 318,319 319-321 321-328 328-339 339-351 351-355 CHAPTER XIII. Partition; — Assignment of Dower; — Settlement of Boundaries. Section L—The Partition Acts, 1868 and 1876 . . . 356-367 » II- — Practice in relation to Actions for Partition or Sale 368, 369 » III- — Costs of an Action for Partition or Sale n IV. — Assignment of Dower . ..... » V. — Settlement of Boundaries ..... 369, 370 370, 371 372-375 CHAPTER XiV. Mortgages, Charges, and Liens. Section L — Nature and effect of Mortgage „ IL — Equitable Mortgages .... ,> ///. — Right to Redeem .... 376-381 382-385 385-391 CONTENTS. XI CHAPTER yHY .—cordinued. Mortgages, "Charges, and Liens — continued. Section IV. — Consolidation of Morfgitf/cs „ V. — llights and Liabilities of Mortgagee „ VI. — Priority of Mortgages „ VII. — Tacking .... „ VIII.— Marshalling of Securities. „ IX. — Remedies .... „ X. — Charges and Liens . „ XL — Statutes of Limitation „ XII. — Parties and Practice XIII.— Costs PAGES 391-393 393-40(3 407-417 417-419 420 420-423 424-432 432-436 436-445 445-449 CHAPTEE XV. Specific Performance of Agreements; — Specific Delivery of Chattels ; — Law of Vendors and Purchasers. Section I. — Jurisdiction ; — Agreements ; — Specific Delivery of Chattels ....... „ II. — Statute of Frauds (jenerally .... „ III. — Admission of parol evidence — Distinction between seeking and resisting Specific Performance „ I V. — Part Performance ...... ,j V. — Cases where Time is of the Essence of the Contract „ VI. — Laches disentitling a party to Specific Performance „ VII. — Specific Performance tvith Compensation . „ VIII. — Defences to Action ..... „ IX. — Liability of Vendor to show a good title „ X. — Bents, Interest and Outgoings . „ XI. — Right to Damages ..... „ XIL — Liability of Vendor to preserve the property until Completion. ..... ^, XIII. — Incumbrance of interest under Contract . „ XI V. — Vendor'' s Lien ..... „ XV. — Purchaser's Lien ..... „ X VI. — Parties, Practice, and Costs . 450-453 453-456 456-458 458, 459 460-463 463-465 465-468 469-474 474-482 483-485 485-486 487 487, 488 488-490 490 491-502 CHAPTEE XVL The Rescission, Cancellation and Delivery up of Agree- 503-506 Xll CONTENTS. CHAPTER XVir.- Relief against Fraud. PAGES Section I. — Jurisdiction and Divisions .... 507-509 „ II.— Actual Fraud 509-517 „ ///. — Fraud apparent from the nature of the bargain . 517, 518 „ IV. — Fraud presumed from the circumstances and con- dition of the co7itracting parties . . . 518-527 „ V. — N ature of relief against fraudulent transactions . 527-530 „ VI. — Defences to Actions for llelief against Fraud . 530-533 „ VII. — Parties, Practice, and Costs . .... 533-535 CHAPTER XVIII. Relief, against Mistake; — Rectification of Settlements and other Instruments. Section I. — Jurisdiction ; — Nature of relief given . . . 536-543 „ II — Parties, Practice, and Costs. .... 543-545 CHAPTER XIX. Accident ; — Lost Instruments ; — Defective Execution of a Power ; — Fraud on a Power. Section I. — Jurisdiction in cases of Accident generally . . 546-548 „ II. — Lost Instruments ...... 548-551 „ III — Defective Execution of a Pouter .... 551-560 „ IV. — Fraud on a Power 560-569 CHAPTER XX. Principal and Surety. Section I. — Contract 570-572 „ II. — Indemnity and Contribution .... 572-576 „ III. — Right of Surety to Securities held by Principal Creditor 576-582 „ IV. — Discharge of Surety ...... 582-584 CHAPTER XXI. Account; — Arbitration; — Set Off; — Appropriation of Payments and Securities ; — Equitable Assignment. Section I. — Jurisdiction ....... 585-587 „ II.— Defences to Action j— Arbitration . . . 587-592 CONTENTS. xiii CHAPTER ':^X.\,— continued. Account; — Akbitration; — Set Off; — Appropriation of Payments and Secuiiities ; — Rquitable Assignment — continued. PAGES Section in.— Set off 592-594 „ IV. — Approjn-iation of Payments .... 594-598 „ V. — Equitable Assignment ; — Appropriation of Securi- ties ; — Buh in Worinr/s Case .... 598-601 CHAPTER XXII. Partnership. Section I. — TJie Partnership Act, 1890 .... 002-629 „ //. — Parties, Practice, and Costs .... 629-637 Index 638-692 TABLE OF CASES. y PAGE A. andB., i?e, 1 Ch. (97)786; 66 L. J. Ch. 592 246 Aas v. Benham, 2 Ch. (91) 244 ; 65 L. T. 25 610, 620 Abbott, lie, 1 Ch. (93) 54 ; 62 L. J. Ch. 46 ; 67 L. T. 794 ; 41 W. R. 154 57, 121 Aberaman Iron Works v. Wickens, 4 Ch. 101 .. .. .. .. .. 466 Ackroyd V. Smith son, 1 Bro. C. C. 503 31 Adam v. Newbigging, 13 App. 308; 57 L. J. Ch. 1066; 59 L. T. 267; 37 W. R. 97 510,605 Adams, Re, 12 Ch. D. 634 ; 48 L. J. Ch. 613; 41 L. T. 607 ; 28 W. R. 163 .. 64 lie, 27 Ch. Div. 394 ; 54 L. J. Ch. 87; 51 L. T. 382; 32 W. R. 883 91, 100, 461 V. A., 1 Ch. (92) 369 ; 61 L. J. Ch. 237 ; 66 L. T. 98 ; 40 W. R. 261 197 V. Waller, 35 L. J. Ch. 727; 14 W. R. 789 215 Addlestone &c. Co., Re, 37 Ch. Div. 191; 57 L. J. Ch. 249; 58 L. T. 428; 36 W. R. 227 515 Agar v. Fairfax, 17 Ves. 533 363 Agar-EUis, Re, 10 Ch. Div. 49 ; 48 L. J. Ch. 1 ; 39 L. T. 380 ; 27 W. R. 117 241 , Re, 24 Ch. Div. 317 ; 53 L. J. Ch. 10 ; 50 L. T. 161 ; 32 W. R. 1 240 Ager V. Peninsular &c., Co., 26 Ch. D. 637 ; 53 L. J. Ch. 589 ; 50 L. T. 477 ; 33W. R. 116 341,347 Agg-Gardner, Re, 25 Ch. D. 600; 53 L. J. Ch. 347; 49 L. T. 804; 32 W. R. 356 479 Agnew V. Belfast &c., Co., 2 Ir. Rep. (96) 204 202 Agra Bank, Ex parte, 9 Eq. 725 ; 39 L. J. Bky. 39 584 V. Barry, L. R. 7 H. L. 135 74,409,414 Ailesbury Estates, Re, 62 L. J. Cn. 1012 ; 69 L. T. 493 ; 42 W. R. 45 .. 496 Ainslie, Re, 30 Ch. Div. 485 ; 55 L. J. Ch. 615 ; 53 L. T. 645 ; 33 W. R. 910 304 Ainsworth v. Wilding, 1 Ch. (i)6) 673 ; 65 L. J. Ch. 432 ; 74 L. T. 193 ; 44 W. R. 540 .. 538 Aitken v. Bachelor, 62 L. J. Q. B. 193 ; 68 L. T. 530 589 Ajello V. Worsley, 1 Ch. (98) 274 ; 67 L. J. Ch. 172 ; 77 L. T. 783 ; 46 W. R. 245 321 Akerman, Re, 3 Ch. (91) 212 ; 61 L. J. Ch. 34 ; 65 L. T. 194 ; 40 W. R. 12 195 Akeroyd, Re, 3 Ch. (93) 363 ; 63 L. J. Ch. 32 ; 69 L. T. 474 197 Albert &c. Co., Re, 11 Eq. 164 ; 40 L. J. Ch. 166 ; 23 L. T. 726 ; 19 W. R. 321 490 Albion &c. Societv, Re, 16 Ch. Div. 83 ; 43 L. T. 523 ; 29 W. R. 109 .. 617 Alcock, Re, 23 Ch. Div. 372 ; 49 L. T. 240 ., 406 Alcoy &c. Co. V. Greenhill, 76 L. T. 542 ,. 579 Alderson v. Elgey, 26 Ch. D. 567 ; 50 L. T. 505 ; 32 W. R. 632 .. .. 405 W.White, 2D. & J. 97 388 h XVlll TABLE OF CASES. PAOE Aldin V. Latimer Clark, 2 Ch. (94) 437 ; 63 L. J. Ch. 601 ; 71 L. T. 119 ; 42 W. K 553 318 Aldridge, i?e, 2 Ch. (94) 97 ; 63 L. J. Ch. 465 ; 70 L. T. 724 ; 42 W. R. 409 624 V. Feme, 17 Q. B. D. 212 ; 55 L. J. Q. B. 5»7 ; 34 W. R. 578 .. 483 Alexander v. Mills, 6 Ch. 124; 40 L. J. Ch. 73; 24 L. T. 206 ; 19 W. E. 310 568 Aleyn V. Belchier, 1 Eden 132 560,566 Alfoid, i?e, 32 Ch. D. 383 ; 55 L. J. Ch. 659 ; 54 L. T. 674 ; 34 W. R. 773 249 Alison, Be, 11 Ch. Div. 284; 40 L. T. 234; 27 W. R. 537 .. .. 215, 435 Allan V. Gott, 7 Ch. 439 ; 41 L. J. Ch. 571 ; 26 L. T. 412 ; 20 W. R. 427 187, 194 Allbutt V. Medical Council, 23 Q. B. Div. 400; 58 L. J. Q. B. 606; 61L. T. 585; 37 W. K. 771 287 AUcard v. Skinner, 36 Ch. Div. 145 ; 5€ L. J. Ch. 1052 ; 57 L. T. 61 522, 523, 533 ■ V. Walker, 2 Ch. (96) 369 ; 65 L. J. Ch. 660 ; 74 L. T. 487 ; 44W. R. 66 '^22,536,537,538 Allen, Be, 2 Ch. (96) 345 ; 65 L. J. Ch. 760 ; 75 L. T. 136 ; 44 W. R. 644 .. 180 , Be, 2 Ch. (98) 499 ; 79 L. T. 107 ; W. N. (98) 76 (4) 434 -y. Bewsey, 7 Ch. Div. 453 ; 37 L. T. 688 39 V. Jackson, 1 Ch. Div. 399 ; 45 L. J. Ch. 310; 33 L. T. 713 ; 24 W. R. 306 508 v. Seckham, 11 Ch. Div. 790; 48 L. J. Ch. 611; 41 L. T. 260; 28W. R. 26 316 Alletson v. Chichester, L. K. 10 C. P. 319 ; 44 L. J. C. P. 153 ; 32 L. T. 151 ; 23 W. R. 393 .. 383 Allgood V. Merr.>bent &c. Co., 33 Ch. D. 571 ; 55 L. J. Ch. 743 ; 55 L. T. 835 ; 35 W. R. 180 490 Allhusen v. Ealing, &c., Ry. Co., 78 L. T. 396 ; 46 W. R. 483 .. .. 299 V. Whittell, 4 Eq. 295; 36 L. J. Ch. 929 ; 16 L. T. 695 .. 182, 183 Allsopp V. Wheatcroft, 15 Eq. 59 ; 42 L. J. Ch. 12 ; 27 L. T. 372 ; 21 W. R. 162 292 Alsbury, Be, 45 Ch. D. 237 ; 60 L. J. Ch. 29 ; 63 L. T. 576 ; 39 W. R. 136 55 Alston V. TroUope, 2 Eq. 205 ; 35 L. J. Ch. 846 ; 14 L. T. 451 ; 14 W. R. 722 ; 35 B. 466 215 Alton V. Harrison, 4 Ch. 622 ; 38 L. J. Ch. 669 ; 21 L. T. 282 ; 17 W. R. 1034 20,21 Ambition &c. Society, Be, 1 Ch. (96) 89 ; 65 L. J. Ch. 113 ; 73 L. T. 508 ; 44 W. R. 141 411 Ambler v. Bolton, 14 Eq. 427 ; 41 L. J. Ch. 783 ; 20 W. R. 934 .. .. 628 American ^c. Co. v. Thomson, 44 Ch. Div. 274; 59 L. J. Ch. 425; 62L. T. 616 327 Tobacco Co. v. Guest, 1 Ch. (92) 630; 61 L. J. Ch. 242; 66 L. T^. 257 ; 40 W. R. 364 339 Ames ■!;. Higdon, 69 L. T. 292 379 Ancaster (D. ol) V. Mayer, 1 Bro. C. C. 454 186 Ancell t;. Rolfe, W. N. (96) 9 370 Anderson v. Oppenheimer, 5 Q. B. D. 602 ; 49 L. J. Q. B. 708 .. .. 312 Anderton, Be, 45 Ch. D. 476 ; 59 L. J. Ch. 765 ; 63 L. T. 332 ; 39 W. R. 44 477 Andrew v. Ailken, 22 Ch. D. 218 ; 52 L. J. Ch. 294; 48 L. T. 148 ; 31 W. R. 425 467,472 . V. Crossley, 1 Ch. (92) 492 ; 61 L. J. Ch. 437 ; 66 L. T. 571 ; 40 W. R. 586 322 Andrews, Be, L. R. 8 Q. B. 153; 28 L. T. 353 ; 21 W. R. 480 .. .. 238 . V. Mockford, 1 Q. B. (96) 372 ; 65 L. J. Q. B. 302 ; 73 L. T. 726 .. 515 V. Salt, 8 Ch. 622 ; 28 L. T. 686 ; 21 W. R. 616 .. .. 240, 255 Angell V. Duke, L. R. 10 Q. B. 174 ; 44 L. J. Q. B. 78 ; 32 L. T. 25 ; 23 W. R. 307 454 TABLE OF CASES. XIX PAGE Anglo-American &c. Corpn. v. Kin?, A. C. (92) 367 322, 324 Anglo- Austrian &c. Union, Re, 2 Ch. (95) 891 ; 65 L. J. Ch. 38 ; 73 L. T. 442 ; 44 W. E. 186 397 Anglo-Danubian &c. Co. V. Piogerson, 10 Jur. N. S. 87 282 Anglo-French &c. Society, 21 Ch. Div. 492 ; 47 L. T. 638 ; 31 W. E. 177 .. 594 Angus V. Clifford, 2 Ch. (91) 449 ; 60 L. J. Ch. 443 ; 65 L. T. 274 ; 39 W. E. 498 514 Ann, Re, 1 Ch. (94) 549 ; 63 L. J. Ch. 334 ; 70 L. T. 273 .. .. 227, 234 Anson r. Potter, 13 Ch. D. 141 ; 41 L. T. 582 47 Anstis, Re, 31 Ch. Div. 596 ; 54 L. T. 742 ; 34 W. E. 483 .. 17, 87, 88, 553 Anthony, Re, 1 Ch. (92) 450 ; 61 L. J. Ch. 434 ; 66 L. T. 181 ; 40 W. E. 316 ; 3 Ch. (93) 498 ; 62 L. J. Ch. 1004 ; 69 L. T. 300 ; 41 W. E. 667 .. 190 Antrobus v. Davidson, 3 Mer. 569 .. .. .. .. .. .. 573 Apollinaris Co., Re, 2 Ch. (91) 186 ; 61 L. J. Ch. 625 ; 65 L. T. 6 330, 331, 332, 333 Applebee, Re, 3 Ch. (91) 422 ; 60 L. J. Ch. 793 ; 65 L. T. 406 ; 40 W. E. 90 13, 206 Appleton, Re, 29 Ch. Div. 893; 54 L. J. Ch. 954 ; 52 L. T. 906 .. .. 194 Arbib, Ee, 1 Ch. (91) 601 ; 60 L. J. Ch. 263 ; 64 L. T. 217 ; 39 W. E. 305 37, 470 Arbuckle, Re, 14 W. E. 535 ; 14 L. T. 538 250 Arbuthnot V. Bunsilall, 62 [>. T. 234 377 Arcedeckne, Re, 24 Ch. D. 709 ; 53 L. J. Ch. 102 ; 48 L. T. 725 .. 384, 580 V. Howard, 20 W. E. 879 ; 27 L. T. 194 573, 575 Archer V. Stone, 78 L. T. 34 493 Archer's Case, 1 Ch. (92) 322 ; 61 L. J. Ch. 129 ; 65 L. T. 800 ; 40 W. E. 212 36,526 Arden v. A., 29 Ch. D. 702 ; 54 L. J. Ch. 655 ; 52 L. T. 610 ; 33 W. E. 593 416 Ardern, i?e, P. (98) 147 ; 78 L. T. 536 166 Armitaire, Re, 3 Ch. (93) 337 ; 63 L. J. Ch. 110 ; 69 L. T. 619 .. 54, 55 Armstrong, Re, 21 Q. B. Div. 264 ; 57 L. J. Q. B. 553 ; 36 W. E. 772 228, 230 Arnison v. Smith, 41 Ch. Div. 348 ; 61 L. T. 63 ; 37 W. E. 739 515 Arnold, Re, 14 Ch. D. 270 ; 42 L. T. 705 ; 28 W. E. 635 .. .. 472, 475 , Re, 37 Ch. D. 637 ; 57 L. J. Ch. 682 ; 58 L. T. 469 ; 36 W. E. 424 209 v. Garner, 2 Ph. 231 41 V. Woodhams, 16 Eq. 29 ; 42 L. J. Ch. 578 ; 28 L. T. 351 ; 21 W. E. 694 230 Arthur, Re, 14 Ch. D. 603 ; 49 L. J. Ch, 556 ; 43 L. T. 46 ; 28 W. R. 972 547 Ashburner v. Macguire, 2 Bro. C. C. 108 192, 193 V. Sewell, 3 Ch. (91) 405 ; 60 L. J. Ch. 784 ; 65 L. T. 524 ; 40 W. E. 169 '469 Ashby, Re, 1 Q. B. (92) 872 ; 66 L. T. 353 ; 40 W. E. 430 .. ,. 19, 23, 24 V. Costin, 21 Q. B. D. 401 ; 57 L. J. Q. B. 491 ; 59 L. T. 224 ; 37 W. E. 140 552 ■ V. Day, 54 L. J. Ch. 935 ; on app. 54 L. T. 408 ; 34 W. E. 312 .. 571 Ashcroft, Re, 19 Q. B. Div. 186 ; 56 L. J. Q. B. 431 ; 57 L. T. 835 ; 35 W. E. 676 22,23 Ashley v. A., 4 Ch. Div. 757 ; 46 L. J. Ch. 322 ; 36 L. T. 200 ; 25 W. E. 356 213 Ashton, Re, P. (92) 83 ; 61 L. J. P. 85 ; 67 L. T. 325 537 , Re, 2 Ch. (97) 574 ; 66 L. J. Ch. 731 ; 77 L. T. 49 ; 46 W. R. 138 ; 1 Ch. (98) 142 ; 67 L. J. Ch. 84 ; 77 L. T. 582 ; 46 W. E. 231 141, 142 Ash well, i?e, John. 112 198 Ashworth v. Lord, 36 Ch. D. 545 ; 57 L. J. Ch. 230 ; 58 L. T. 18 ; 36 W. E. 446 404,448 v.Munn,34Ch.D.391; 56L. J. Ch. 451 ; 56 L. T. 86 ; 35 W. E.513 182 Askew V. Woodhead, 14 Ch. Div. 27; 49 L. J. Ch. 320; 42 L. T. 567; 41 L. T. 670 ; 28 W. E. 874 89,103 &2 XX TABLE OF CASES. PAGE Aspden v. Seddon, 10 (Jh. 394 ; 44 L. J. Ch. 359 ; 32 L. T. 415 ; 23 W. E. 580 ; 1 Ex. Div. 496 ; 46 L. J. Ex. 353 ; 36 L. T. 45 ; 25 W. K. 277 .. .. 300 Astburv, Ex parte, 4 Ch. 630 ; 38 L. J. Bky. 9; 20 L. T. 997 ; 17 W. R. 997 381 V. A., 2 Ch. (98) 111 ; 78 L. T. 494 ; 40 W. R. 536 .. 199, 215, 436 Astley V. E. of Essex, 18 Eq. 290 ; 43 L. J. Ch. 817 ; 30 L. T. 485 ; 22 W. K. 620 278 Aston V. Meredith, 13 Eq. 492 ; 26 L. T. 281 367 -y. Wood, 6 Eq. 419 5,9 Atcheson V. A., 11 B. 485 222 AthiU, lie, 16 Ch. Div. 211 : 50 L. J. Ch. 123 ; 43 K T. 581 ; 29 W. R. 309 188 Atkinson, Be, 1 Ch. (98) 637 ; 67 L. J. Ch. 349 ; 78 L. T. 317 ; 46 W. R. 439 236 V. Mackieth, 2 Eq. 570 ; 35 L. J. Ch. 024 ; 14 L. T. 722 ; 14 W. R. 883 534, 609, 610 — V. Morris, P. (97) 40 ; 66 L. J. P. 17 ; 75 L. T. 440 ; 45 W. R. 293 551 Atkyns V. Hatton, 2 Anstr. 386 373 A.-G. V. Ailesbury (M. of), 12 App. 672 ; 57 L. J. Q. B. 83 ; 58 L. T. 192 ; 36 W. R. 737 93,106 V. Albany Hotel Co., 2 Ch. (96) 696 ; 65 L. J. Ch. 885 ; 75 L. T. 195 282 v. Alford, 4 D. M. & G. 843 64 V. Clerkenwell Vestry, 3 Ch. (91) 527 ; 60 L. J. Cli. 788 ; 65 L. T. 312 ; 40 W. R. 185 311 V. Colney Hatch Asylum, 4 Ch. 146; 30 L. J. Ch. 265 ; 19 L. T. 708; 17W. R. 240 311 V. Conduit Colliery Co., 1 Q. B. (95) 301 ; 64 L. J. Q. B. 207 ; 71 L. T. 771 ; 43W. R. 366 300 V. Dodd, 2 Q. B. (94) 150 ; 63 L. J. Q. B. 319 ; 70 L. T. 660 ; 42 W. R. 524 90, 93 -y. Geor-e, 14 Sim. 146 150 V. Hubbuck, 13 Q. B. Div. 275 ; 53 L. J. Q. B. 146 ; 50 L. T. 374 .. 615 V. Jacobs-Smith, 2 Q. B. (95) 341; 64 L. J. Q. B. 605 ; 72 L. T. 714 ; 43 W. R. 657 18 V. Logan, 2 Q. B. (91) 100; 65 L. T. 162 309 V. Lomas, L. R. 9 Ex. 29 ; 43 L. J. Ex. 32 ; 29 L. T. 749 ; 22 W. R. 188 93 V. Manchester (Corpn. of), 2 Ch. (93) 87 ; 62 L. J. Ch. 459 ; 68 L. T. 608 ; 41 W. R. 459 311 V. Mander, 65 L. J. Q. B. 246 ; 74 L. T. 103 ; 44 W. R. 413 .. .. 480 V. Met. Ry. Co., 1 Q. B. (94) 384 ; 09 L. T. 811 ; 42 W. R. 381 .. 311 y. Murdoch, 2 K. & J. 571 63 V. New York Breweries Co., 1 Q. B. (98) 205 ; 67 L. J. Q. B. 86 ; 78 L. T. 61 ; 46 W. R. 193 216 V. Read, 12 Eq. 38 ; 40 L. J. Ch. 678 ; 24 L. T. 494 255 V. Richmond, 2 Eq. 306 ; 35 L. J. Ch. 597 ; 14 L. T. 398 ; 14 W. R. 686 311 v. Stephens, 6 D. M. & G. Ill 372,374 V. Swansea Corpn., 1 Ch. (98) 602 ; 67 L. J. Ch. 356 ; 78 L. T. 412 46 W. R. 534 V. Tod-Heatley, 1 Ch. (97) 560 ; 66 L. J. Ch. 275 ; 76 L. T. 174 45W. R. 394 V. Tomline, 5 Ch. D. 750 ; 46 L. J. Ch. 654 ; 36 L. T. 684 ; 25 W. R. 802 15 Ch. Div. 150 ; 43 L. T. 486 , V. Wax Chandlers' Co., L. R. 6 H. L. 1 ; 42 L. J. Ch. 425 ; 28 L. T. 681 21 W. R. 361 Attorneys and Solicitors Act, 1870, Be, 1 Ch. D. 573 ; 45 L. J. Ch. 47 24W. R. 38 Atwell V. A., 13 Eq. 23 ; 41 L. J. Ch. 23 Atw'ood V. Maude, 3 Ch. 369 ; 10 VV. R. 665 310 311 297 505 89 625 TABLE OF CASES. XXI PAGE Auriferous Properties, Re, 1 Ch. (98) 691 ; 67 L. J, Ch. 367 ; 79 L. T. 71 .. 594 Austerberry v. Corpn. of Oldham, 29 Ch. Div. 750; 55 L. J. Ch. 633; 53 L. T. 543 ; 33 Y\^. H. 807 288 Austin V. A., 4 Ch. D. 233 ; 46 L. J. Ch. 92 ; 36 L. T. 96 ; 25 W. R. 346 .. 224 Austraha (Union Bk. of) v. Murray- Aynsley, A. C. (98) 693 593 Australian W me Importers, Re, 41 Ch. Div. 278; 58 L. J. Ch. 380; 60 L. T. 436 ; 37 W. R. 578 330 AveriU, Re, 1 Ch. (98) 523 ; 67 L. J. Ch. 233 ; 78 L. T. 320 ; 46 W. R. 460 250 Ayerst v. Jenkins, 16 Eq. 275 ; 42 L. J. Ch. 690 ; 29 L. T. 126 ; 21 W. R. 878 10 Ayles v. Cox, 17 B. 584 480 Aylesford (E. of) v. Morris, 8 Ch. 484 ; 42 L. J. Ch. 546 ; 28 L. T. 541 ; 21 W. R. 424 520 V. Poulett (E.), 2 Ch. (92) 60 ; 61 L. J. Ch. 406 ; 66 L. T. 484 ; 40 W. R. 424 78,79 Ay] ward v. Lewis, 2 Ch. (91) 81 ; 64 L. T. 250; 39 W. R. 552 .. .. 439 Aynsley v. Glover, 18 Eq. 544; 43 L. J. Ch. 777; 31 L. T. 219; 23 W. R. 147 ; 10 Ch. 283 ; 44 L. J. Ch. 523 ; 32 L. T. 345 ; 23 W. R. 459 .. 315 Bach, i?e, W. N. (92) 108 210 Backhouse v. Charlton, 8 Cli. D. 444 ; 26 W. R. 504 623 Bacon, i?e, 42 Ch. D. 559 ; 58 L. J. Ch. 823 ; 61 L. T. 458 214 Badcock, lie, 17 Ch. D. 361; 43 L. T. 688; 29 W. R. 278 159 V. Hunt, 22 Q. B. D. 145; 58 L. J. Q. B. 134; 60 L. T. 314; 37 W. R. 205 483 Baddeley v. B., 9 Ch. D. 113 ; 48 L. J. Ch. 36 ; 38 L. T. 906 ; 26 W. R. 850 15 Badeley v. Consolidated Bank, 34 Ch. D. 536 ; 55 L. T. 635 ; 35 W. R. 106 607, 609 V. , 38 Ch. Div. 238 ; 57 L. J. Ch. 468 ; 59 L. T. 419 ; 36 W. R. 745 416,604,606,608,609 Badische, &c. v. Basle Chemical Works, A. C. (98) 200 ; 67 L. J. Ch. 141 ; 77 L. T. 573; 46 W. R. 255 325 , V. Levinstein, 24 Ch. D. 156; 52 L. J. Ch. 704; 48 L. T. 822; 31 W. R. 913; 12 App. 710; 57L. T. 853 321,322 Bagnall v. Carlton, 6 Ch. Div. 371 ; 47 L. J. Ch. 30 ; 37 L. T. 481 ; 26 W. R. 243 34,526 V. Villar, 12 Ch. D. 812 ; 48 L. J. Ch. 695 ; 28 W. R. 242 .. .. 380 Bahin v. Hughes, 31 Ch. Div. 390 ; 55 L. J. Ch. 472 ; 54 L. T. 188 ; 34 W. R. 311 62,64 Bailey, Re, 12 Ch. D. 268 ; 48 L. J. Ch. 628 ; 41 L. T. 157 ; 27 W. R. 909 .. 174 V. Barnes, 1 Ch. (94) 25 ; 63 L. J. Ch. 73 ; 69 L. T. 542 ; 42 W. R. 66 75,418,419 v. Ford, 13 Sfen. 495 633 V. Hobson, 5 Ch. 180; 39 L. J. Ch. 270 ; 22 L. T. 594 .. .. 362 Baillie's Case, 1 Ch. (98) 110 ; 67 L. J. Ch. 81 ; 77 L. T. 523 ; 46 W. R. 187 515 Bain v. Fothergill, L. R. 7 H. L. 158 ; 43 L. J. Ex. 243 ; 31 L. T. 387 .. 486 V. Sadler, 12 Eq. 570 ; 40 L. J. Ch. 791 ; 25 L. T. 202 ; 19 W. R. 1077 182 Bainbrigge v. Browne, 18 Ch. D. 188 ; 50 L. J. Ch. 522 ; 44 L. T. 705 ; 29 W. R. 782 521,528 Baird v. Wells, 44 Ch. D. 661 ; 59 L. J. Ch. 673 ; 63 L. T. 312 ; 39 W. R. 61 287 Baker, Re, 20 Ch. Div. 230; 51 L. J. Ch. 315 ; 45 L. T. 658 ; 30 W. R. 858 212 , he, 44 Ch. Div. 262 ; 59 L. J. Ch. 661 ; 62 L. T. 817 ; 38 W. R. 417 171, 215 V. Abbott, W. N. (97) 38 429 V. Hawscn, 45 Ch. D. 519 ; 60 L. J. Ch. 49 ; 63 L. T. 306 .. 331, 332 V, Sebright, 13 Ch. D. 179; 49 L. J. Ch. 65; 41 L. T, 614- 28 W. R. 177 307, 308 XXll TABLE OF CASES. PAGE Baker v. Williams, 62 L. J. Ch. 315; 68 L. T. 634; 41 W. K. 375 .. .. 500 V. Yorkshire &c. Co., 1 Q. B. (92) 144 ; 61 L. J. Q. B. 838 ; 66 L. T. 161 589 Baldwin V. Booth, W. N. (72) 229 632 BaU V. Kemp-Welch, 14 Ch. D. 512; 49 L. J. Ch. 528 ; 43 L. T. 116 369, 370 V. Bay, 8Ch. 467; 28L. T. 346; 21 W. E. 282 311 Ballance, Me, 42 Ch. D. 62 ; 58 L. J. Ch. 534 ; 61 L. T. 158 ; 37 W. R. 600 29 Ballard v. Marsden, 14 Ch. D. 374 ; 49 L. J. Ch. 614 ; 42 L. T. 763 ; 28 W. R. 914 196 V. Shutt, 15 Ch. D. 122 ; 49 L. J. Ch. 618 ; 43 L. T. 173 ; 29 W. R. 73 483 V. Tomlinson, 29 Ch. Div. 115 ; 54 L. J. -Ch. 454 ; 52 L. T. 942 ; 33 W. R. 533 312 Banister, Be, 12 Ch. Div. 131 ; 48 L. J. Ch. 837 ; 40 L. T. 828 ; 27 W. R. 826 475 Bank of Africa v. Salisbury &c. Co., A. C. (92) 281 ; 61 L. J. P. C. 34 ; 66 L. T. 237; 41 W. K. 47 419 New South AVales v. O'Connor, 14 App. 273 ; 58 L. J. P. C. 82 ; 60 L. T. 467 ; 38 W. R. 465 381,447,448 Bankes v. Small, 36 Ch. Div. 716 ; 56 L. J. Ch. 832 ; 57 L. T. 292 ; 35 W. R. 765 557 Banner v. Berridge, 18 Ch. D. 254 ; 50 L. J. Ch. 630 ; 44 L. T. 680 ; 29 W. R. 844 .. .. ,. .. .. .. .. _ ,. ,_ 432 Bannerman, ^e, 21 Ch. D. 105 ; 51 L. J. Ch. 449 '.. .. '.. \. 198 Barber, Ex parte, 5 Ch. 687 ; 23 L. T. 230 ; 18 W. R. 940 626 , Be, 18 Ch. D. 624 ; 50 L. J. Ch. 769 ; 45 L. T. 433 ; 29 W. R. 909 .. 35 , Be, 31 Ch. D. 665 ; 55 L. J. Ch. 373 ; 54 L. T. 375 ; 34 W. R. 395 41, 173, 174 , Be, 34 Ch. D. 77 ; 56 L. J. Ch. 216 ; 55 L. T. 882 ; 35 W. R. 326 .. 41 ■ V. Mackrell, 12 Ch. Div. 534 ; 41 I.. T. 23 ; 27 W. R. 894 .. 629, 636 V. Penley, 2 Ch. (93) 447 ; 62 L. J. Ch. 623 ; 68 L. T. 662 .. .. 311 Barclay V. Owen, W. N. (89) 17 ; 60 L. T. 220 434,437,447 ' V. Pearson, 2 Ch. (93) 154; 62 L. J. Ch. 636; 68 L.T. 709 ; 42 W. R. ^ 74 10,504 Barfield v. Loughborough, 8 Ch. 1 ; 42 L. J. Ch. 179 ; 27 L. T. 499 ; 21 W. R. „ .86 613,618 Baring, Be, 1 Ch. (93) 61 ; 62 L. J. Ch. 50 ; 67 L. T. 702 ; 41 W. R. 87 35 Barker, Be, 17 Ch. Div. 241 ; 50 L. J. Ch. 334 ; 44 L. T. 33 ; 29 W. R. 873 101, 102 , Be, 2 Ch. (92) 491 ; 62 L. J. Ch. 76 ; 66 L. T. 848 .. .. 82, 198 , i?e, W. N. (97) 154 56 , Be, 11 L. T. 712; 46 W. R. 296 62, 69 V. Cox, 4 Ch. D. 464 ; 46 L. J. Ch. 62 ; 35 L. T. 662 ; 25 W. R. 138 467, 490 V. Furlong, 2 Ch. (91) 172 ; 60 L. J. Cii. 368 ; 64 L. T. 411 ; 39 W. R. 621 .. 165 V. Venables, 13 W. R. 803 ; 11 Jur. N. S. 480; 34 L. J. Ch. 420 .. 501 Barker's Claim, 3 Ch. (94) 290 ; 63 L. J. Ch. 741 ; 71 L. T. 146 ; 43 'w."r. 20 433, 572 Barlow v. Ross, 24 Q. B. Div. 381 ; 59 L. J. Q. B. 183 ; 62 L. T. 552 ; 38 W. R. 372 .. .. .. ,, .. _^ ^^ __ 322 Barnard, Be, 32 Ch. Div. 447 ; 55 L. J. Ch. 935; 55 lVt. 4o'; 34 W. R. 782 608 V. Tomson, 1 Ch. (94) 374 ; 63 L. J. Ch. 488 ; 70 L. T. 306 .. 411 Barnardo v. McHugh, A. C. (91) 388 ; 65 L. T. 423 ; 40 W. R. 97 .. 238 Barnes v. Addy, 9 Ch. 244 ; 43 L. J. Ch. 513 ; 30 L. T. 4 ; 22 W. R. 505 48, 65 V Gienton, 2 Q. B. (98) 223 ; 79 L. T. 94 .... 434 — V. liacstcr, 1 Y. & C. Ch. 401 " 420 V. Suuthsea Ry. Co., 27 Ch. D. 536 ; 51 L. T. 762; 32 W. R."*976 " '?99 V. Wood, 8 Eq. 424 ; 38 L. J. Ch. 683 ; 21 L. T. 227 ; 17 W. R. 1080 467 TABLE OF CASES. XXIU PAGE Barnes v. Youngs, 1 Ch. (98) 414 ; 67 L. J. Ch. 263 ; 46 W. R. 332 589, 590, 618 Baraetr, Re, 15 Q. B. Div. 169; 54 L. J. Q. B. 354; 53 L. T. 448; 33W. R. 715 285 , i?e, P. (98) 145 ; 78 L. T. 391 166 V. King, ] Ch. (91) 4 ; 60 L. J. Ch. 148 ; 63 L. T. 501 ; 39 W. R. 39 162 Barney, Re, 2 Ch. (92) 265 ; 61 L. J. Ch. 585 ; 67 L. T. 23 ; 40 W. R. 637 4, 65 , Re, 3 Ch. (94) 562; 63 L. J. Ch. 676; 71 L. T. 180; 43 W. R. 105 47 Barrett, Re, 43 Ch. D. 70; 59 L. J. Ch. 218; 38 W. R. 59 .. .. 181 V. Hartley, 2 Eq. 789 ; 12 Jur. N. S. 426 ; 14 L. T. 474 .. ..40 Barrow v. Isaacs, 1 Q. B. (91) 417; 60 L. J. Q. B. 179 ; 64 L. T. 686; 39 W. R. 338 267,269,271,275,538,540 Barter, Ex parte, 26 Ch. Div. 510 ; 53 L. J. Ch. 802 ; 51 L. T. 811 ; 32 W. R. 809 621 Bartlett, Re, 16 Ch. D. 561 ; 50 L. J. Ch. 205; 44 L. T. 17 ; 29 W. R. 279 510 v. Marshall, 44 W. R. 251 310,311 Barton, Hx parte, 1 VV^. R. 369 .. .. .. .. .. .. •• 278 V. Bank of New South Wains, 15 App. 379 386, 388 V. Capewell &c. Co., 68 L. T. 857 259,485 V. L. & N. W. Ry. Co., 24 Q. B. Div. 77 ; 59 L. J. Q. B. 33 ; 62 L. T. 164; 38 W. R. 197 407 V. North &c. Co., 38 Ch. D. 458; 57 L. J. Cli. 800 ; 58 L. T. 549 ; 36 W. R. 754 210,407,629 Baskcomb v. Beckwith, 8 Eq. 100; 38 L. J. Ch. 536 ; 20 L. T. 862; 17 W. R. 812 475,544 Basnett v. Moxon, 2*6 Eq. 182 ; 44 L. J. Ch. 557 ; 23 W. R. 945 .. .. 363 Bass v. Gregory, 25 Q. B. D. 481 ; 59 L. J. Q. B. 574 319 Bastin V. Bi.iwell, ]8Ch. D. 238; 44L. T. 742 462 Batcbellor, i?e, W. N. (86) 64 119 Batchelor, Re, 16 Eq. 481 ; 43 L. J. Ch. 101 ; 21 W. R. 901 195 Bate, Re, 43 Ch. D. 600 ; 59 L. J. Ch. 277 ; 62 L. T. 559 .. 173, 183, 208 Batenian v. Faber, 1 Ch. (98) 144 ; 67 L. J. Ch. 130 ; 77 L. T. 576 ; 46W. R. 215 .. .. 224,537 Bates V. Donaldson, 2 Q. B. (96) 241 ; 65 L. J. Q. B. 578 ; 74 L. T. 751 ; 44 W. R. 659 ^76 Bathe v. Bk. of England, 4 K. & J. 564 231 Batstone v. Salter, 10 Ch. 431 ; 44 L. J. Ch. 760 ; 33 L. T. 4 ; 23 W. R. 816 33 Batt, ii'e, 2 Ch. (98) 432 ; 79 L. T. 206 334 Batten v. Dartmouth Commrs., 45 Ch. D. 612 ; 59 L. J. Ch. 700 ; 62 L. T. 861 ; 38 W. R. 603 446 V. Wedgwood &c. Co., 28 Ch. D. 317 ; 54 L. J. Ch. 686 ; 52 L. T. 212 ; 33W. R.^303 446 Battersea (Lord) v. Commrs. of Sewers, 2 Ch. (95) 708 ; 65 L. J. Ch. 81 ; 73L. T. 116; 44 W. R. 124 313 Battison v. Hobson, 2 Ch. (96) 403; 65 L. J. Ch. 695; 74 L. T. 689; 44W. R. 615 415 Baumann v. James, 3 Ch. 508 ; 18 L. T. 424 ; 16 W. R. 877 454 Bawden, Re, 1 Ch. (94) 693 ; 63 L. J. Ch. 412 ; 70 L. T. 526 ; 42 W. R. 235 184, 194 Baxendale u. Lucas, W. N. (95) 30 499 V. McMurray, 2 Ch. 790; 15 W. R. 32 311 Baxter v. Middleton, 1 Ch. (98) 313 427 -y. West, 28 L. J. Ch. 169 631,634 V. , IDr. &Sm. 173 622 Bayhs v. Ji^rgcns, 2 Q. B. (98) 315; 79 L. T. 78 483 Baynes v. Llovd, 2 Q. B. (95) 610 ; 64 L. J. Q. B. 787 ; 73 L. T. 250 ; 44 W. R.328 470 XXIV TABLE OF CASES. PAGE Bayspoole v. Collins, 6 Ch. 228; 40 L. J. Ch. 289; 25 L. T. 282; 19 W. R. 363 20,27 Beak, Re, 13 Eq. 489 ; 41 L. J, Ch. 470; 26 L. T. 281 203 Beal, Ex parte, L. R. 3 Q. B. 387 ; 37 L. J. Q. B. 161 ; 18 L. T. 285 ; 16 W. R. 852 350 Beale V. Symonds, 16 B. 406 390 Beaton V. BoultoD, W. N. (91) 30 445 Beattie v. Ebury, L. R. 7 H. L. 102 ; 44 L. J. Ch. 20 ; 30 L. T. 581 ; 22 W. R. 897 510, 513, 515 Beauchamp, Ee, 75 L. T. 315 632 V. Winn, L. R. 6 H. L. 223 ; 22 W. R.193 .. .. 536, 543 Beaumont v. Oliveiia, 4 Ch. 309; 20 L. T. 53 ; 17 W. R. 269 .. .. 209 Beaupre, i?e, L. R. 21 Ir. 397 235 Bechervaise v. Lewis, L. R. 7 C. P. 372 ; 41 L. J. C. P. 161 ; 26 L. T. 848 ; 20 W. R. 726 579 Beckett v. Addyman, 9 Q. B. Div. 783 ; 51 L. J. Q. B. 597 571 V. Buckley, 17 Eq. 435 ; 22 W. R. 294 390 V. Tasker, 19 Q. B. D. 7 ; 56 L. T. 636 ; 36 W. R. 158 .. 230, 233 Beddington v. Atlee, 35 Ch. D. 317 ; 56 L. J. Ch. 655 ; 56 L. T. 514 ; 35 W. R. 799 316 Beddoe, Re, 1 Ch. (93) 547 ; 62 L. J. Ch. 233 ; 68 L. T. 595 ; 41 W. R. 177 39, 40, 52 Beddow v. B., 9 Ch. U. 89 ; 47 L. J. Ch. 588; 26 W. R. 570 279 Bedingfeld, Re, 2 Ch. (93) 332 ; 62 L J. Ch. 430 ; 68 L. T. 634 ; 41 W. R. 413 482 Beeman, Ee, 1 Ch. (96) 48 ; 65 L. J. Ch. 190; 73 L. T. 555 ; 44 W. R. 247 180 Beer v. London &c. Co., 20 Eq. 412 ; 32 L. T. 715 454, 493 Beethain, Re, 18 Q. B. Div. 766; 56 L. J. Q. B. 635; 35 W. R. 613.. 383, 424 Belcher v. Williams, 45 Ch. D. 510 ; 63 L. T. 673 ; 39 W. R. 266 .. 369, 370 Belfield v. Bourne, 1 Ch. (94) 521 ; 63 L. J. Ch. 104 ; 69 L, T. 786 ; 42 W. R. 189 589,636 Beii, Re. 34 Ch. D. 462 ; 56 L. J. Ch. 307 ; 55 L. T. 757 ; 35 W. R. 212 65, 80, 433 V. Balls, 1 Ch. (97) 663 ; 66 L. J Ch. 397; 76 L. T. 254; 45 W. R. 378 453 V. Dudley (E. of), 1 Ch. (95) 182; 64 L. J. Ch. 291; 72 L. T. 14; 43W. R. 122 300 V. Sunderland &c. Society, 24 Ch. D. 618 ; 53 L. J. Ch. 509 ; 49 L. T. 555 406 — V. Turner, 2 Ch. D. 40b ; 45 L. J. Ch. 681 ; 24 W. R. 451 .. .. 424 V. -, 47 L. J. Ch. 75 64 Bellamy, Re, 24 Ch. Div. 387; 52 L. J. Ch. 89, 870; 48 L. T. 801 ; 31 W. R. 900 48 v. Brickendeu, 4 K. & J. 670 440,448 V. Debenham, 1 Ch. (91) 412 ; 60 L. J. Ch. 166 ; 64 L. T. 478 ; 39W. R. 257 455,463,467,481,482 Bellasis, Ee, 12 Eq. 218; 24 L. T. 466 ; 19 W. R. 699 9 Bellis, Ee, 5 Ch. D. 504; 46 L. J. Ch. 353; 36 L. T. 644; 25 W. R. 456 39, 194 Bellringer v. Blagrave, 1 D. G. & Sm. 63 556 Bence v. Shearman, 67 L. J. Ch. 513 594 Beningfield v. Baxter, 12 App. 167 ; 56 L. J. P. C. 13 : 56 L. T. 127 .. .. 525 Bonnet v. B., 10 Ch. D. 474 ; 40 L. T. 378 : 27 W. R. 573 34 Bennett, i?e, 73 L. T. 17 .. .. .. ' 222 V. Houldsworth, 6 Ch. D. 671 ; 46 L. J. Ch. 646 ; 36 L. T. 648 .. 122, 137, 139 TABLE OF CASES. XXV PAGE Bent V. CuUen, 6 Ch. 235 ; 40 L. J. Ch. 250 ; 19 W. K. 368 199 Bentinck, Re, 1 Ch. (97) 673; 66 L. J. Ch. 359; 76 L. T. 284; 45 W. 11. 397 169,170,171,180,181 V. Fenn, 12 App. 652 ; 57 I.. J. Ch. 552 ; 57 L. T. 773 ; 36 W. R. 641 526 V. London &c. Bk., 2 Ch. (93) 120; 62 L. J. Ch. 358 ; 68 L. T. 315; 42W. K. 140 72,409,414 Benyon, Re, 53 L. J. Ch. 1165 ; 51 L. T. 116 ; 32 W. R. 871 153 Beresfurd v. Browning, 1 Ch. Div. 30; 45 L. J. Ch. 36; 33 L. T. 524; 24W. R. 120.." 608 Bergmann v. Macmillan, 17 Ch. D. 423 ; 44 L. T. 794 ; 29 W. R. 890 .. 327 Berridge v. B., 44 Ch D. 168 ; 59 L. J. Ch. 533 ; 63 L. T. 101 : 38 W. R. 599 579 Berry v. Gibbons, 8 Ch. 747 ; 42 L. J. Ch. 89 ; 29 L. T. 88 ; 21 VV. R. 754 .. 210 Besant, Re, 11 Ch. Div. 508; 48 L. J. Ch. 497 ; 40 L. T. 469; 27 W. R. 741 240 Best V. Hamand, 12 Ch. Div. 1 ; 48 L. J. Ch. 503 ; 40 L. T. 769 ; 27 W. R. 742 475 Bethell v. Abraham, 17 Eq. 24 ; 43 L. J. Ch. 180; 29 L. T. 715 ; 22 W. R. 179 43 Betjemann v. B., 2 Ch. (95) 474 ; 64 L. J. Ch. 641 ; 73 L. T. 2 ; 44 W. R. 182 81, 510, 532 Bettesworth, Re, 37 Ch. D. 535; 57 L. J. Ch. 749 ; 58 L. T. 796 ; 36 W. R. 544 479,483 Betts, Re, 18 Ch. Div. 127 ; 50 L. J. Cb. 832 ; 45 L. T. 290 ; 30 W. R. 38 .. 394 Bewley v. Atkinson, 13 Ch. Div. 283; 49 L. J. Ch. 153; 41 L. T. 603; 28 W R 638 312 Beyfus, Re, 39 Ch. i3iv. 110 ; 59 L. T. 740 ; 37 W. R. 261 '.'. '.'. 466, 468 Beynon v. Cook, 10 Ch. 389 ; 32 L. T. 353 ; 23 W. R. 531 520 Bickerton v. Walker, 31 Ch. Div. 151 ; 55 L. J. Ch. 227 ; 53 L. T. 731 ; 34W. R. 141 413,489 Biggerstaff v. Rowatt, 2 Ch. (96) 93 ; 65 L. J. Ch. 536 ; 74 L. T. 473 ; 44W. R. 536 481,594 Biggs V. Hoddinott, 2 Ch. (98) 307 ; 79 L. T. 201 .. 289, 385, 386, 387, 444 V. Peacock, 22 Ch. Div. 284 ; 52 L. J. Ch. 1 ; 47 L. T. 341 ; 31 W. R. 148 97,361 Bignel], Re, 1 Ch. (92) 59 ; 61 L. J. Ch. 334 ; 66 L. T. 36 ; 40 W. R. 305 .. 40 BigDold,i?e, 45 Ch. D. 496 ; 59 L. J. Ch. 737 ; 63 L.T. 542 196 Bilborough v. Holmes, 5 Ch. D. 255 ; 46 L. J. Ch. 446 ; 35 L. T. 759 ; 25 W. R. 297 612 Binney v. Mutrie, 12 App. 160 ; 36 W. R. 129 613, 627 Binns, Re, 2 Ch. (96) 584; 65 L. J. Ch. 830; 75 L. T. 99 .. .. 196, 593 V. Nichols, 2 Eq. 256 ; 35 L. J. Ch. 635 183, 198 Birch, Re, 27 Ch. D. 622 ; 54 L. J. Ch. 119 ; 51 L. T. 777 : 33 W. R. 72 .. 212 V. Sherratt, 2 Ch. 644 ; 36 L. J. Ch. 925 ; 17 L. T. 153 ; 16 W. R. 30 201 Birch- Wolfe v. Birch, 9 Eq. 683 ; 39 L. J. Ch. 345 ; 23 L. T. 216 ; 18 W. K. 594 304, 307 Birchall, Re, 40 Ch. Div. 436 ; 60 L. T. 369 ; 37 W. R. 387 37 Bird, i?e, 3 Ch. D. 214 .. .. 544 , Re, 1 Ch. (9Z) 279 ; 61 L. J. Ch. 2H8 ; 66 L. T. 274 ; 40 W. R. 359 88, 89 V. Barstow, 1 Q. B. (92) 94 ; 61 L. J. Q. B. 1 ; 65 L. T. 656 ; 40 W. R. 71 233 V. Wenn, 33 Ch. D. 215 ; 55 L. J. Ch. 722 ; 54 L. T. 933 ; 34 W. R. 652 391,392 Birkbeck &c. Society, Re, 24 Ch. D. 119 ; 52 L. J. Ch. 777 ; 49 L. T. 265 ; 34 W. R. 716 480 Birkett, Re, 9 Ch. D. 576; 47 L. J. Ch. 847 ; 39 L. T. 418; 27 W. R. 164 .. 8 XXVI TABLE OF CASES. PAGE Birkin v. Wing, 63 L. T. 80 473 Birmingham Breweries V. Jameson, 67 L. J. Ch. 403 ; 78 L. T. 512 .. .. 289 &c. Co., i?e, 1 Ch. (93)342; 62 L. J. Ch. 90; 67 L. T. 850; 41 W. R. 189 289 V. L. & N. W. Ky. Co., 40 Cli. Div. 268; 60 L. T. 527 267,299 Birt, lie, 22 Ch. D. 604 ; 52 L. J.Ch. 397 ; 48 L. T. 67; 31 W. R. 334 180, 181 Bishop V. Smyrna &c. Co., 2 Ch (95) 265; 64 L. J. Ch. 617 ; 72 L. T. 773; 43 W. R. 647 ; 2 Ch. (95) 596 ; 64 L. J. Ch. 806 ; 73 L. T. 337 .. 627 Bissill V. Bradford &c. Co., W. N. (93) 44 430 Bizzey v. Flight, 3 Ch. D. 269 ; 45 L. J. Ch. 852 ; 24 W. R. 957 .. .. 13 Blachford, Be, 27 Ch. D. 676 ; 54 L. J. Ch. 215 ; 33 W. R. 11 .. .. 198 Black V. Williams. 1 Ch. (95) 408 ; 64 L. J. Ch. 137 ; 43 W. R. 346 .. 407 Blackhorn V. Edjiley, 1 P. W. 600 521 Blackburn, lie, 43 Ch. D. 75; 59 L. J. Ch. 208; 38 W. R. 140 .. .. 119 &c. Society v. Cuulifle, 29 Ch. Div. 902; 54 L. J. Ch. 1091; 53L. T. 741 536 Blackmanu. Fysh, 3Ch(92)209; 67L. T. 802 24 BlaiklocK v. Grindle, 7 Eq. 215 ; 38 L. J. Ch. 247 ; 17 W. R. 114 .. .. 113 Blake, Be, 29 Ch. Div. 913; 54 L. J. Ch. 880; 53 L. T. 302; 33 W. R. 886 54 v.-B., 15 Ch. D. 481 ; 49 L. J. Ch. 393 ; 42 L. T. 724 ; 28 W. R. 647 85 V. Gale, 32 Ch. Div. 571 ; 55 L. J. Ch. 559 ; 55 L. T. 234 ; 34 W. R. 555 212 213 V. Peters, 1 D. J. & S. 345 '307 Blanchard, i?e, 3 D. F. & J. 131 63 Bland v. Dawes, 17 Ch. D. 794; 50 L. J. Ch. 252; 43 L. T. 751; 29 W. R. 416 223 Bland's Case, 2 Ch. (93) 612 ; e2 L. J. Ch. 975 ; 69 L. T. 700 510, 526, 527 Blandy v. Widmore, 1 P. W. 324 159 Blank v. Footman, 39 Ch. D. 678 ; 57 L. J. Ch. 909 ; 59 L. T. 507 ; 36 W. R. 921 . 355 Blannv. Bell,*7Ch."b. 382" 47 L.'j. Ch!'l20 .. '.'. .. .. .'. 183 Blight V. Hartnoll, 19 Ch. D. 294 ; 51 L. J. Ch. 162 ; 45 L. T. 524 ; 30 W. R. 513 199 Blockley, Be, 29 Ch. D. 250 ; 54 L. J. Ch. 722 ; 33 W. R. 777 .. .. 144 Bloomer v. Spittle, 13 Eq. 427 ; 41 L. J. Ch. 369 ; 26 L. T. 272 ; 20 W. R. 435 538, 543 Blore V. Ashby, 42 Ch. D. 682 ; 58 L. J. Ch. 779 ; 61 L. T. 766 ; 38 W. R. 141 455, 493 Bluck V. Capstick, 12 Ch. D. 863; 48 L. J. Ch. 766; 41 L. T. 215; 28W. R. 75 625 Blmubercr v. Lile &c. Corpn., 1 Ch. (97) 171 ; 66 L. J. Ch. 127 ; 75 L. T. 627; 45 W. R. 246; afiU., 1 Ch. (98) 27 ; 67 L. J. Ch. 118 ; 77 L. T. 506 .. 448 Blmidell, Be, 40 Ch. D. 370 ; 57 L. J. Ch. 730 ; 58 L. T. 933 ; 36 W. R. 779 39, 40 Blyth V. Carpenter, 2 Eq. 501 ; 35 L. J. Ch. 823 ; 12 Jur. N. S. 898; 15 L. T. 154; 15 W. R. 3 377 V. Fladgate, 1 Ch. (91) 337 ; 60 L. J. Ch. 66 ; 63 L, T. 546 ; 39 W. R. 422 43,46,61,62,609,610 Boards, Be, 1 Ch. (95) 499 ; 64 L. J. Ch. 305 ; 72 L. T. 220 ; 43 W. R. 472 .. 194 Boddinj^ton, Be, 25 Ch. Div. 685 ; 53 L. J. Ch, 475 ; 50 L. T. 761 ; 32 W. R. 448 153 Bodman, Be, 3 Ch. (91) 135 ; 61 L. J. Ch. 31 ; 65 L. T. 522 ; 40 W. R. 60 .. 192 Boehm V. Wood, 2 J. & W. 236 499 Boldero v. London &c. Co., 5 Ex, D. 47 ; 42 L. T. 56; 28 W. R. 154 .. 21 TABLE OF CASES. XXVll PAGE Bolingbroke v. Hinde, 25 Ch. D. 795 ; 53 L. J. Ch. 704 ; 32 W. R. 427 .. 447 Bolitho V. Hillyar, 34 B. 184 541 Bolton V. Aldin, 65 L. J. Q. B. 120 350 V. B., 3 Ch. (91) 270 ; 60 L. J. Ch. 689 ; 65 L. T. 698 ; 40 W.E. 145 254, 255 V. Curre, 70 L. T. 759 ; W. N. (94) 122 67, 72, 377 V. , 1 Ch. (95) 544 ; 64 L. J. Ch. 164 ; 71 L. T. 752 ; 43 W. R. 521 67 V. Lambert, 41 Ch. D. 295 ; 58 L. J. Ch. 425 ; 60 L. T. 687 ; 37 W. R. 434 454,455,607 V. London School Board, 7 Ch. D. 766 ; 47 L. J. Ch. 461 ; 38 L. T. 277 ; 26 W. R. 549 478 V. Natal &c. Co;, 2 Ch. (92) 124 ; 61 L. J. Ch. 281 ; 65 L. T. 786 36, 627 V. Salmon, 2 Ch. (91) 48 ; 60 L. J. Ch. 238; 64 L. T. 222; 39 W. R. 589 439,583 Bompas v. King, 33 Ch. Div. 279 ; 56 L. J. Ch. 202 ; 55 L. T. 190 .. .. 400 Bond, Be, 4 Ch. D. 238 ; 46 L. J. Ch. 488 ; 25 W. R. 95 9 V. Walford, 32 Ch. D. 238 ; 55 L. J. Ch. 667 ; 54 L. T. 672 .. .. 506 Bonham v. Newcomb, 1 Vern. 214, 232 .. .. .. .. .. .. 386 Bonhote v. Henderson, 1 Ch. (95) 742; 64 L J. Ch. 556; 72 L. T. 556; 43 W. R. 502 ; 2 Ch. (95) 202 ; 64 L. J. Ch. 560 ; 72 L. T. 814 ; 43 W. R. 580 540 Bonnard v. Ferryman, 2 Ch. (91) 269; 60 L. J. Ch. 617; 65 L. T. 506; 39 W. R. 435 320 Bonner v. G. W. Ry. Co., 24 Ch. Div. 1 ; 48 L. T. 619 ; 32 W. R. 190 .. 314 Bounewell v. Jenkins, 8 Ch. Div. 70 ; 47 L. J. Ch. 758 ; 38 L. T. 81 ; 26 W. R. 294 455 Booth, ^e. W. N. (79) 108 171 , Re, 2 Ch. (94) 282 ; 63 L. J. Ch. 560; 42 W. R. 613 251 V. Coulton, 5 Ch. 684 ; 39 L. J. Ch. 622 ; 18 W. R. 877 .. .. 201 V. Turle, 16 Eq. 182 ; 21 W. R. 721 5, 458 Bootle V. Blun.iell, 1 Mer. 193 184 Borthwick v. The Evening Post, 37 Ch. Div. 449 ; 57 L. J. Ch. 406 ; 58 L. T. 252 ; 36 W. R. 434 343 Bostock V. Floyer, 1 Eq. 26 ; 35 L. J. Ch. 23 ; 13 L. T. 489 ; 14 W. R. 120 48 Boston &c. Co. V. Ansell, 39 Ch. Div. 339 ; 59 L. T. 345 36, 65 Boswell V. Coaks, 27 Ch. Div. 424; 54 L. J. Cn. 347 ; 51 L. T. 242 ; 33 W. R. 376 533 Bosworth, i?e, 58 L. J. Ch. 432 52 Bothamley v. Sherson, 20 Eq. 304 ; 33 L. T. 150 ; 23 W. R. 848 191, 192, 193 Botten V. City &c. Society, 2 Ch. (95) 441 ; 64 L. J. Ch. 609 ; 72 L. T. 722 ; 44W. R. 12' 411 Bottomley's Case, 16 Ch. D. 681; 50 L. J. Ch. 167; 43 L. T. 620; 29 W. R. 133 278 Bouch V. Sproule, 12 App. 385 ; 56 L. J. Ch. 1037 ; 57 L. T. 345 ; 36 W. R. 193 55 Boucicault v. Chatterton, 5 Ch. Div. 267 ; 46 L. J. Ch. 305 ; 35 L. T. 745 ; 25 W. R. 287 350 Boughton V. B., 2 Ves. Sen. 12 117 Boulcott y. B., 2 Dr. 25 151 Boulter, Re, 4 Ch. D. 241 ; 46 L. J. Bky. 11 ; 35 L. T. 673 ; 25 W. R. 100 .. 383 Boulton, iia;^arte, 3 Jur. N. S. 425 383 Bom-goise, i?e, 41 Ch. Div. 310 248 Bourne i;. B., 2 Ha. 35 88,99 Boursot V. Savage, 2 Eq. 134 ; 35 L. J. Ch. 627 ; 14 L. T. 299 73, 74, 75, 412 Boutts V. Ellis, 4 D. M. & G. 249 203 XXVIU TABLE OF CASES. PAGE Bovill V. Endle, 1 Cb. (96) 648; 65 L. J. Ch. 542 ; 44 W. R. 523 .. .. 406 "Bovrill," lie, 2 Ch. (96) 600; 65 L. J. Ch. 715; 74 L. T. 805 ; 45 W. K. 150 333 Bowden, Rt, 45 Ch. D. 444 ; 59 L. J. Ch. 815 82, 212, 213, 218 Bowen, 7?e, 2 Ch. (92) 291 ; 61 L. J. Ch. 432 231 , Re, 2 Ch. (93) 491 ; 62 L. J. Ch. 681 ; 61 L. T. 789 ; 41 W. R. 535 7 V. Evans, IJ. & L. 178 72 Bower v. Hett, 2 Q. B. (95) 337; 64 L. J. Q. B. 772; 73 L. T. 176; 44 W. K. 4 617 Bower Barff, Re, A. C. (95) 675 ; 73 L. T. 36 .. " 323 Bowes, Re, 1 Ch. (96) 507 ; 65 L. J. Ch. 298 ; 74 L. T. 16 ; 44 W. R. 411 .. 8 Bowlini,', Re, 1 Ch. (95) 663 ; 64 L. J. Ch. 427 ; 72 L. T. 411 ; 43 W. R. 417 481 Bowman, Re, W. N. (91) 192 537 Bowser v. Colby, 1 Ha. 109 264 Bowyear v. Pawson, 6 Q. B. D. 540; 50 L. J. Q. B. 495 ; 29 W. R. 664 .. 579 Bowyer V. Woodman, 3 Eq. 313 436 Box V. Barrett, 3 Eq. 244 ; 15 W. R. 217 115 Boyd, Re, 14 Ch. D. 626 ; 49 L. J. Ch. 808; 43 L. T. 348 42 , ii'e, 63 L. T. 92 119 , Re, 2 Ch. (97) 232 ; 66 L. J. Ch. 614; 77 L. T. 76 ; 45 W. R. 648 .. 120 v.- Allen, 24 Ch. D. 622 ; 53 L. J. Ch. 701 ; 48 L. T. 628 ; 31 W. R. 544 361 v. B., 4 Eq. 305 ; 36 L. J. Ch. 877 144 V. Petrie, 7 Ch. 385; 41 L. J. Ch. 378; 25 L. T. 460; 20 W. R. 513 386,397 Buyes, Re, 26 Ch. D. 531 ; 53 L. J. Ch. 654 ; 50 L. T. 581 ; 32 W. R. 630 .. 5 Bo\ le V. Bettws &c. Co., 2 Ch. D. 726 ; 45 L. J. Ch. 748 ; 34 L. T. 844 .. 488 Boys, ^e, 10 Eq. 467 ; 39 L. J. Ch. 655 580 Boyse, Re, 33 Ch. D. 612 ; 56 L J. Ch. 135 ; 55 L. T. 391 ; 35 W. R. 247 .. 583 Brace V. D. of Marlborough, 2 P. W. 493 419 Bracken, Re, 43 Ch. Div. 1 ; 59 L. J. Ch. 18 ; 61 L. T. 531 ; 38 W. R. 48 .. 218 Brackenbury, Re, 2 P. D. 272 ; 46 L. J. P. 42 ; 36 L. T. 744 ; 25 W. R. 698 182 Bradhurv v. Hotten, L. R. 8 Ex. 1 ; 42 L. J. Ex. 28; 27 L. T. 450; 21 W. R. 126 346 V. Wild, 1 Ch. (93) 377 ; 62 L. J. Ch. 503 ; 68 L. T. 50 ; 41 W. R. 361 411 Braddick v. Mattock, 6 Madd. 361 553 Bradford &c. Co. v. Brig^s, 12 App. 29; 56 L. J. Ch. 364; 56 L. T. 62; 35 W. R. 521 .. 419 • V. BrowDJohn, 3 Ch. 711; 38 L. J. Ch. 10; 19 L. T. 248; 16W. R. 1178 35 (Mayor &c. of) v. Pickles, A. C. (95) 587; 64 L. J. Ch. 759; 73 L. T. 353 ; 44 W. R. 190 312 Bradlaugh v. Newdegate, 11 Q. B. D. 1 ; 52 L. J. Q. B. 454 ; 31 W. R. 792 .. 504 Bradley v. Munton, 16 B. 294 480 V. Riches, 9 Ch. D. 189 ; 47 L. J. Ch. 811 ; 38 L. T. 810 ; 26 W. R. 910 74,413,414 Bradshaw V. B., 1 Russ, 528 .. 242 Braham v. Beachim, 7 Ch. D. 848; 47 L. J. Ch. 348; 38 L. T. 640; 26 W. R. 654 336 V. Bustard, 1 H. & M. 447 336 Brain, Re, 18 Eq. 389 ; 44 L. J. Ch. 103 ; 31 L. T. 17 ; 22 AV. R. 867 .. 278 Bray v. [Stevens, 12 Ch. D. 162 .. 194 Brentwood &c. Co., Re, 4 Ch. Div. 562 ; 46 L. J. Ch. 554 ; 36 L. T. 343 ; 25 W. R. 481 489 Brcreton v. Edwards, 21 Q, B. Div. 488 ; GO L. T. 5 ; 37 W. R. 47 .. .. 417 TABLE OF CASES. XXIX PAGE Breton, Ee, 17 Ch. D. 416; 50 L. J. Ch. 369; 44 L. T. 337; 29 W. "R. 777 12,15 Brett V. Kogers, 1 Q. B. (97) 525 ; 06 L. J. Q. B. 287 ; 76 L. T. 26 ; 45 W. R. 334 .. .. .. 483 Brewer, Be, 2 Ch. (96) 503 ; 65 L. J. Ch. 821 ; 75 L. T. 177 ; 45 W. R. 8 .. 23 V. Broadwood, 22 Ch. D. 105 ; 52 L. J. Ch. 136 ; 47 L. T. 508 ; 31W. R. 115 454,481 V. Brown, 28 Ch. D. 309 ; 54 L. J. Ch. 605 472, 473 V. Square, 2 Ch. (92) 111 ; 61 L. J. Ch. 516 ; 66 L. T, 486 ; 40 W. R. 378 396,423 Briant, Be, 39 Ch. D. 471 ; 57 L. J. Ch. 953 ; 59 L. T. 215 ; 36 W. R. 825 195, 221 Brice -y. Stokes, 11 Ves. 319 59,60 Bridge v. Beadon, 3 Eq. 664; 36 L. J. Ch. 351 ; 15 W. R. 527 .. .. 415 v. Brown, 2 Y. & C. 181 46,252 Bridger, Be, 1 Ch. (94) 297 ; 63 L. J. Ch. 186 ; 70 L. T. 204 ; 42 W. R. 179 6 Bridges, Be, 17 Ch. D. 342; 50 L. J. Ch. 470 ; 44 L. T. 730 191 Bridle, /.'e, 4C. P. 1). 336; 41L. T. 343 ..193 Brier, Be, 26 Ch. Div. 238 ; 51 L. T. 133 ; 33 W. R. 20 .. .. 48, 59, 216 Bright V. Campbell, 41 Ch. D. 388 ; 60 L. T. 731 ; 37 W. R. 745 .. .. 404 Brinsdeu v. Williams, 3 Ch. (94) 185 ; 63 L. J. Ch. 713 ; 71 L. T. 177 ; 42 W. R. 700 65 Briscoe v. B., 3 Ch. (92) 543; 61 L. J. Ch. 665; 67 L. T. 116; 40 W. R. 621 428 Bristol (M. of). Be, 1 Ch. (97) 946 ; 66 L. J. Ch. 446 ; 76 L. T. 757 ; 45 W. R. 552 160 &c. Co. V. Maggs, 44 Ch. D. 616 ; 59 L. J. Ch. 472 ; 62 L. T. 416 ; 38 W. R. 393 454, 455, 456 Britannia ("fee. Society, Be, 63 L. T. 304 481 British &c. Co. v. Companhia &c., A. C. (93) 602 ; 63 L. J. Q. B. 70; 69 L. T. 604 377 V. Smart, 10 Ch. 567 ; 44 L. J. Ch. 695 ; 32 L. T. 849 ; 23 W. R. 800 170 V. South American &c. Co., 1 Ch. (94) 108 440 Brocklesby v. Temperance &c. Society, A. C. (95) 173 ; 64 L. J. Cli. 433 ; 72 L. T. 477 ; 43 W. R. 606 409, 410, 412 Brodie, i^e, W. N. (93) 161 193 Broaden, Be, 38 Ch. Div. 546 ; 59 L. T. 650 ; 37 W. R. 84 50, 212, 214, 216, 217 Brook V. Manchester, &c. Ry. Co., 2 Ch. (95) 571 ; 64 L. J. Ch. 890 ; 73 L. T. 205 ; 43 W. R. 698 299 Brooke, Be, 3 Ch. D. 630 ; 45 L. J. Ch. 730 ; 35 L. T. 301 ; 24 W. R. 959 .. 194 , Be, 1 Ch. (94) 43 ; 63 L. J. Ch. 159 ; 70 L. T. 71 ; 42 W. R. 186 .. 39 , Be, 2 Ch. (94) 600; 64 L. J. Ch. 21 ; 71 L. T. 398 .. .. 210, 381 , Be, 1 Ch. (98) 647 ; 67 L. J. Ch. 272 ; 78 L. T. 416 ; 46 W. R. 442 231 V. Warwick (E. of), 1 H. e% T. 142 187 Brooking v. Maudslay, 38 Ch. D. 636 ; 57 L. J. Ch. 1001 ; 58 L. T. 852; 36 W. R. 664 506 Brookman, Be, 5 Ch. 182 ; 39 L. J. Ch. 138 ; 22 L. T 891 159 Brooks, i?e, 76 L. T. 771 211 V. Blackburn &c. Society, 9 App. 857 ; 54 L. J. Ch. 376 ; 52 L. T. 225 ; 33 W. R. 309 ; 29 Ch. D. 9n2; 54 L. J. Ch. 1091 ; 53 L. T. 741 410 V. Religious Tract Society, 45 W. R. 476 347 V. Sutton, 5 Eq. 361 ; 37 L. J. Ch. 311 ; 18 L. T. 224 ; 16 W. R. 570 49 Brooksbank, Be, 34 Ch. D. 160; 56 L. J. Ch. 82 ; 55 L. T. 593; 35 W. R. 101 111,119 Broom V. Phillips, 74 L. T. 459 466 XXX TABLE OF CASES. PAGE Broomfield v. Williams, 1 Ch. (97) 602 ; 66 L. J. Ch. 305 ; 76 L. T. 243 ; 45 W. R. 469 316 Brophy v. Bellamy, 8 Ch. 798 ; 43 L. J. Ch. 183 ; 29 L. T. 380 .. .. 251 Brown, Ex parte, 11 Ch. D. 148 ; 48 L. J. Bky. 78 ; 40 L. T. 402 ; 27 W. R. 651 25 , Be, 13 Q. B. D. 614; 51 L. T. 793 ; 33 W. K. 79 240 , Me, 29 Ch. D. 889 ; 54 L. J. Ch. 1134 ; 52 L. T. 853 ; 33 W. R. 692 43, 251 , Re, 32 Ch. D. 597 ; 55 L. J. Ch. 556 ; 54 L. T. 789 .. .. 66, 536 , Be, 2 Ch. (93) 300 ; 62 L. J. Ch. 695 ; 69 L. T. 12 ; 41 W. R. 440 433 V. Alabaster, 37 Ch. D. 490 ; 57 L. J. Ch. 255 ; 58 L. T. 265 ; 36 W. R. 155 470 v. B., 2 Eq. 481 ; 14 L. T. 694 111,112 V. Burdett, 40 Ch. Div. 244 ; 60 L. T. 520 ; 37 W. R. 533 .. .. 171 V. Collins, 25 Ch. D. 56 ; 53 L. J. Ch. 368 ; 49 L. T. 329 .. .. 254 V. Gellatly, 2 Ch. 751 ; 17 L. T. 131 ; 15 W. R. 1188 .. ..54, 55 V. Hutchinson, 1 Q. B, (95) 737 ; 64 L. J. Q. B. 359 ; 72 L. T. 437 ; 43 W. R. 533 616, 634 V. , 2 Q. B. (95) 126 ; 64 L. J. Q. B. 619 ; 73 L. T. 8 ; 43 W. R. 545 .. .. ■ 616 V. Jackson, A. C. (95) 446 ; 64 L. J. P. C. 180 325 V. Kough, 29 Ch. Div. 848 ; 54 L. J. Ch. 1024 ; 52 L. T. 878 ; 34 W. R. 2 599,600 v. North, 9 Q. B. Div. 52 ; 51 L. J. Q. B. 365 ; 46 L. T. 361 ; 30 W. R. 531 236 V. Smith, 10 Ch. Div. 377 ; 48 L. J. Ch. 694; 40 L. T. 374 ; 27 W. R. 588 242,252 V. Stedman, 44 W. R. 458 408 V. Wren, 1 Q. B. (95) 390 ; 64 L. J. Q. B. 119 ; 72 L. T. 109 ; 43 W. R. 351 603 Browne v. Collins, 12 Eq. 586 55 V. McClintock, L. R. 6 H. L. 434 ; 22 W. R. 521 .. .. 81, 533 V. Warnock, 7 L. R. Ir. 3 479 Brownlie V. Campbell, 5 App. 938 .. ,. .. .. .. .. 513 Bruce, i?e, 30 W. R. 922 250 v. B., 11 Eq. 371 ; 40 L. J. Ch. 141 ; 24 L. T. 212 119 V. Garden, 5 Ch. 32 ; 39 L. J. Ch. 334 ; 18 W. R. 384 384 Brunton v. Electrical &c. Corporation, 1 Ch. (92), 434 ; 61 L. J. Ch. 256 ; 65L. T. 745 429,431 Bryant, Be, 44 Ch. Div. 218 ; 59 L. J. Ch. 636 ; 63 L. T. 20; 38 W. R. 469 482, 486 , Be, 1 Ch. (94) 324 ; 63 L. J. Ch. 197 ; 70 L. T. 301 ; 42 W. R. 183 251 252 , i?e, IQ. B. (95)420;'64L. J. Q. B. 417; 72L. T. 133 .. .. ' 21 -^ V. Hancock, 1 Q. B. (98) 716 ; 67 L. J. Q. B. 507 ; 78 L. T. 397 ; 46 W. R. 386 .. 288 Bubb V. Yelverton, 10 Eq. 465 ; 40 L. J. Ch. 38 ; 18 W. R. 1127, 1146 ., 308 Buck, Be, 2 Ch. (96) 727 ; 65 L. J. Ch. 881 ; 75 L. T. 312 ; 45 W. R. 106 .. 7, 8 31 Buckland v. Papillon, 2 Ch. 67 ; 36 L. J. Ch. 81 ; 12 Jur. N. S. 992 ; 15 L. T. 378 ; 15 W. R. 92 462 489 330; 70 L. T. 115; 42 W. R. 229 198 439 ; 48 L. T. 109 ; 31 W. R. 376 251 140 560 V. Pocknell, 13 Sim. 406 Buckle, Be, 1 Ch. (94) 286 ; 63 L. J. Ch Buckley, Be, 22 Ch. D. 583 ; 52 L. J. Ch , Be, W. N. (93) 95 u. Howell, 29 B. 546 TABLE OF CASES. XXXI Budge V. Gummow, 7 Ch. 719 ; 42 L. J. Ch. 22 ; 27 L, T. 6fi6 ; 20 W. R. 1022 Bud^ett, He, 2 Ch. (94) 557 ; 63 L. J. Ch. 847 ; 71 L. T. 72 ; 42 W. R. 551 V. B., 1 Ch. (96) 202 ; 64 L. J. Ch. 209 ; 71 L. T. 632 ; 43 W. R. 167 P. 105; 12 Jur. Ch. 776; 52"l. Burden v. Bignold, 2 Y. & C. Ch. 377 Bulkeley v. Stephens, 2 Ch. (96) 241 ; 65 L. J. Ch. 597 ; 74 L W. R. 490 Bullen V. Sharp, L. R. 1 C. P. 86 ; 35 L. J. C. 14 L. T. 72; 14 W. R. 338 .. Bullers v. Dickinson, 29 Ch. D. 155 ; 54 L. J W. R. 540 BuUey v. B., 9 Ch. 739 ; 44 L. J. Ch. 79 ; 30 L. T. V. — 8 Ch. D. 479 ; 38 L. T. 401 ; 26 W. R. 638 Bullock, He, 60 L. J. Ch. 341 ; 64 L. T. 736 ; 39 W. R. 472 .. Bulmer v. Hunter, 8 Eq. 46; 38 L. J. Ch. 543 ; 20 L. T. 942 .. Bund V. Green, 12 Ch. D. 819; 28 W. R. 275 Bunn, Re, 16 Ch. D. 47 ; 29 W. R. 348 w. Markham, 7 Taunt. 224.. Bunting v. Sargent, 13 Ch. D. 330; 49 L. J. Ch. 28 VV. R. ri3 Burchell v. Clark, 2 C. P. Div. 88 ; 46 L. J. C. P 25 W. R. 334 Burchnall, Be, W. N. (93) 171 Burdick v. Garrick, 5 Ch. 233 ; 39 L. J. Ch. 369 ; 18 W. R. 387 T. 409 ; 44 N.*"S. 247*; T.*400; 33 22 W. R. 779 PAGE 43 608 39 420 598 604 109; 41 L. T. 643; 115; 35 L. T 313 72, 538 . 428 24 22 . 32 . 194 . 203 435 690; ., 544 .. 401 64, 65, 77, 80, 433 619, 628 45 ; 28 W. R. Burdon v. Barkus, 4 D. F. & J. 42 Burgess's Case, 15 Ch. D. 507 ; 49 L. J. Ch. 541 ; 43 L. T 792 515 Burland, Ee, 42 Ch. D. 274; 58 L. J. Ch. 816 ; 61 L. T. 618; 38 W. R. 89 331 Burn V. London &c. Co., W. K (90) 209 405 Burnaby, Be, 42 Ch. D. 621 ; 58 L. J. Ch. 664; 61 L. T. 22 52 Burnell v. B., 11 Ch. D. 213 ; 48 L. J. Ch. 412 ; 27 W. R. 749 362 Burrell, Be, 9 Eq. 443 ; 39 L. J. Ch. 544; 22 L. T. 263 169 Burroughs, Be, 5 Ch. Div. 601 ; 46 L. J. Ch. 528 ; 36 L. T. 778 ; 25 W. R. 520 497 Burrow v. Scammell, 19 Ch. D. 175; 51 L. J. Ch. 296; 45 L. T. 606; 30W. R. 310 467 Burrows v. Holley, 35 Ch. D. 123 ; 56 L. J. Ch. 605 ; 56 L. T. 506 ; 35 W. R. 592 415 Burstall v. Beyfus, 26 Ch. Div. 35; 53 L. J. Ch. 565; 32 W. R. 418; SOL. T. 542 65 Burt V. Bull, 1 Q. B. (95) 276 ; 64 L. J. Q. B. 232 ; 71 L. T. 810 ; 43 W. R. 180 633 Burton, Be, 2 Ch. (92) 38; 61 L. J. Ch. 702 ; 67 L. T. 221 249 V. Gray, 8 Ch. 932; 43 L. J. Ch. 229 .. 382 Bury V. Thompson, 1 Q. B. (95) 696 ; 64 L. J. Q. B. 500 ; 72 L. T. 187 ; 43W. R. 338 480 Busk V. Aldam, 19 Eq. 16; 44 L. J. Ch. 119; 31 L. T. 370; 23 W. R. 21 .. 39 Butcher, Ex parte, 13 Ch. Div. 465; 42 L. T. 299; 28 W. R. 484 .. .. 210 V. Pooler, 24 Ch. Div. 273 ; 52 L. J. Ch. 930 ; 49 L. T. 573 ; 32 W. R. 305 637 Bute (M. oQ, Be, 27 Ch. D. 196; 53 L. J. Ch. 1090; 32 W. R. 996 .. .. 47 Bute's Case (M. of), 2 Ch. (92) 100; 61 L. J. Ch. 357; 66 L. T. 317; 40W. R. 538 36 Butler, Be, 38 Ch. Div. 286 ; 57 L. J. Ch. 643 ; 59 L. T. 386 ; 36 W. R. 817 219 , Be, 3 Ch. (94) 250 ; 63 L. J. Ch. 662 ; 43 W. R. 190 .. .. 183, 191, 208 V. B., 7 Ch. Div. 116 ; 47 L. J. Ch. 77 ; 26 W. R. 85 ; 37 L. T. 518 .. 62 XXXll TABLE OF CASES. Butler V. B., 14 Ch. D. 329 ; 49 L. J. Ch. 742 ; 42 L. T. 728 ; 28 W. R. 825 62 y. — , 16 Q. B. Div. 374 ; 55 L. J. Q. B. 55 ; 54 L. T. 591 ; 34 W. R. 132 229 V. Mulvil.ill, 1 Bli. 137 473 Byron, Ri', 3 Ch. (91) 474 ; 60 L. J. Ch. 807 ; 65 L. T. 218 ; 40 W. R. 11 .. 389 Caballero v. Henty, 9 Ch. 447 ; 43 L. J. Ch. 635 ; 30 L. T. 314 ; 22 W. R. 446 477 Cadman v. C, 33 Ch. Div. 397 ; 55 L. J. Ch. 833 ; 55 L. T. 569 ; 35 W. R. 1 250, 253 Cahill V. C, 8 App. 420 ; 49 L. T. 605 ; 31 W. R. 861 .. ..126, 128, 220 Cahn V. Pockett's &c. Co., 2 Q. B. (98) 61 ; 67 L. J'. Q. B. 625 ; 79 L. T. 55 600 Cain V. Mcon, 2 Q. B. (96) 283 ; 65 L. J. Q. B. 587 ; 74 L. T. 728 .. .. 202 Caird v. Moss, 33 Ch. Div. 22 ; 55 L. J. Ch. 854 ; 55 L. T. 453 ; 35 W. R. 52 542 V. Sime, 12 App. (Sc.) 326; 57 L. J. P. C. 2; 57 L. T. 634; 36 W. R. 199 349 Calcott, Re, 78 L. T. 826 415 Caldwell V. Matthews, 62 L. T. 799 397 Caledonian Ry. Co. v. Turcan, A. C. (98)256; 67 L.J. P. C. 69 .. .. 299 Califoruian &c. Co., Re, 40 Ch. D. 620; 58 L. J. Ch. 341; 60 L. T. 590; 37 W. R. 268 332 Callatrhau, Re, 28 Ch. Div. 186 ; 54 L. J. Ch. 292 ; 52 L. T. 7; 33 W. R. 157 256 Calvert V. Thomas, 19 Q. B. Div. 204; 56 L. J. Q. B. 470; 57 L. T. 441; 35 W. R. 616 379 Camden v. Murray, 16 Ch. D. 161; 50 L. J. Ch. 282; 43 L. T. 661; 29W. R. 190 54,242,247 Cameron, Re, 26 Ch. Div. 19; 53 L. J. Ch. 1139; 50 L. T. 339; 32 W. R. 83^ 194,211 -, Re, 37 Ch. D. 32 ; 57 L. J. Ch. 69 ; 57 L. T. 645 ; 36 W. R. 5 Campbell, Ex parte, 16 Ch. D. 198; 43 L. T. 727 ; 29 W. R. 233 , Re, 2 Ch. (93) 206 ; 62 L. J. Ch. 594; 68 L. T. 851 , i?e, 3Ch. (93) 468; 62 L. J. Ch. 878; 69 L. T. 134 . V. Holyland, 7 Cli. D. 166 : 47 L. J. Ch. 145 ; 38 L. T. 128 26 W. R. 160 .. .: V. Lloyds &c. Bank, 1 Ch. (91) 136 n; 58 L. J. Ch. 424 18 180 190 55 445 401 61 480 526 66, 197 589 411 Carlyon v. Trus^cott, 20 Eq. 348 ; 44 L. J. Ch. 186 ; 32 L. T. 50 .. 177, 179 Carmichael v. Gee, 5 App. 588 ; 49 L. J. Ch. 829 ; 43 L. T. 227 ; 29 W. R 293 201 Carney v. Plimmer, 1 Q. B. (97) 634; 66 L. J. Q. B. 415; 76 L. T. 374; 45 W. R 385 10 Carpenter Re, 51 L. T. 773 116 Carrick V. Wigan &c. Co., W. N. (93) 98 446 Carritt v. Real &c. Co., 42 Ch. D. 263 ; 58 L. J. Ch. 688 ; 61 L. T. 163 37 W. R. 677 Carrodus V. Sharp, 30 B. 56 .... Carter, Re, 1 Ch. (97) 776 ; 66 L. J. Ch. 408 ; 76 L. T. 476 ; 45 W. R. 484 C , 1 Ch. (96) 62 ; 73 L. T. 437 ; 44 W. R. 73 Cann v. C, 33 W. H. 40; 51 L. T. 770 Cannon Brewery v. Nash, 77 L. T. 648 Cape Breton Co., Re, 29 Ch. D. 795 ; 54 L. J. Ch. 822 ; 53 L. T. 181 ; 33 W. R. 788 Carew, Re, 2 Ch. (96) 311 ; 65 L. J. Ch. 686 ; 74 L. T. 501 ; 44 W. R. 700 Carlisle, Re, 44 Ch. D. 200; 59 L. J. Ch. 520 ; 62 L. T. 821 ; 38 W. R. 638 &c. Co. V. Thompson, 28 Ch. D. 398 ; 33 W. R. 119 V. Ft-y, 2 Ch. (94) 541 ; 63 L. J. Ch. 723 ; 70 L. T. 786 V. Wake, 4 Ch. D. 605 ; 46 L. J. Ch. 841 413 483 23,545 231 634 381 TABLE OF CASES. XXXlll PAGH Carter V. Whalley, 1 B. & Ad. 11 623 V, White, 25 Ch. Div. 666 ; 54 L. J. Ch. 138 ; 50 L. T. 670 ; 32 W. R. 692 583 &c. Co., Be, 3 Ch. (92) 472 ; 61 L. J. Ch. 716 ; 67 L. T. 747 ; 41 W. R. 13 332 Casborne V. Scarfe, 1 Atk. 603 380 Casev, Be, 1 Ch. (92) 104 ; 61 L. J. Ch. 61 ; 66 L. T. 93 ; 40 W. R. 180 .. 326 < assidy V. Belfast &c. Co., 22 L. R. Ir. 68 204 Castell, Be, 1 Ch. (98) 315 ; 67 L. J. Ch. 169 ; 78 L. T. 109; 46 W. R. 248 410 Castellain v. Preston, 11 Q. B. Div. 380; 52. L. J. Q. B. 366; 49 L. T. 29 ; 31W. R. 559 480,547 Caswell V. Sheen, 69 L. T. 854 106,365 Cate V. Devon &c. Co., 40 Ch. D. 500 ; 58 L. J. Ch. 288 ; 60 L. T. 672 ; 37 W. R. 487 342 Cathcart, Be, 1 Ch. (93) 466 ; 62 L. J. Ch. 320; 68 L. T. 358; 41 W. R. 277 424 Catling V. G. N. Ry. Co., 18 W. R. 121 ; 21 L. T. 769 484 V. King, 5 Ch. D. 660 ; 46 L. J. Ch. 384 ; 36 L. T. 526 ; 25 W. R. 550 454 Cato V. Thompson, 9 Q. B. Div. 616 ; 47 L. T. 491 467, 475 Caton V. C, L. R. 2 H. L. 127 ; 36 L. J. Ch. 886 ; 16 W. R. 1 .. .. 19 v. Rideout, 1 M. & G. 599 226 Catton V. Banks, 2 Ch. (93) 221 ; 62 L. J. Ch. 600 ; 68 L. T. 245 ; 41 W. R. 429 370 V. Bennett, 26 Ch. D. 161 ; 53 L. J. Ch. 685 ; 32 W. R. 485 ; 50 L. T. 383 493 Cavan (Lady) V. Pulteney, 2 Ves. 544 123 Cavander v. Bulteel, 9 Ch. 79 ; 43 L. J. Ch. 370 ; 29 L. T. 710 ; 22 W. R. 177 76, 615 Cave V. C, 15 Ch. D. 639; 49 L. J. Ch. 505 ; 42 L. T. 730; 28 W. R. 793 72, 73, 74 Cavendish V. Geaves, 24 B. 163 593 Chadburn v. Moore, 61 L. J. Ch. 674 ; 67 L. T. 257 ; 41 W. R. 39 .. .. 456 Chadwick v. Manning, A. C. (96) 231 ; 65 L. J. P. C. 42 573 Chambers V. Goldwin, 9 Ves. 254 386,437 Champion, Be, 1 Ch. (93) 101 ; 62 L. J. Ch. 372 ; 67 L. T. 694 .. 70, 387 Chancellor, Be, 26 Ch. Div. 42 ; 53 L. J. Ch. 443 ; 51 L. T. 33 ; 32 W. R. 465 54,211 Chancey's Case, 1 P. W. 408 147 Chandler v. Bradley, 1 Ch. (97) 315 ; 66 L. J. Ch. 214 ; 75 L. T. 581 ; 45W. R. 296 508,558 ■ V. Pocock, 16 Ch. Div. 648 ; 50 L. J. Ch. 380 ; 44 L. T. 115 ; 29 W. R. 877 85 Chapman, Be, 29 Ch. D. 1007 ; 54 L. J. Ch. 810 ; 52 L. T. 805 ; 33 W. R. 703 480 , Be, 1 Ch. (96) 323 ; 65 L. J. Ch. 170 ; 73 L. T. 658 ; 44 W. R. 311 44 , Be, 2 Ch. (96) 763 ; 65 L. J. Ch. 892 ; 75 L. T. 196 ; 45 W. R. 67 44, 46, 50, 165, 216 v. Beach, IJ. & W. 594 632 v. Gibson, 3 Bro. C. C. 229 552 Chappell V. Boosev, 21 Ch. D. 232 ; 51 L. J. Ch. 625 ; 46 L. T. 854 ; 30 W. R. 733 350 V. GriflBith, 53 L. T. 459 614 V. North, 2 Q. B. (91) 252 ; 60 L. J. Q. B. 554 ; 65 L. T. 23 ; 40W. R. 16 589 Chard V. Jervis, 9 Q. B. Div. 178 ; 51 L. J. Q. B. 442 ; 30 W. R. 504 .. 80 Charles v. Junes, 35 Ch. D. 544 ; 56 L. J. Ch. 745 ; 56 L. T. 848; 35 W. R. 645 396,4^3,448 Charlesworth v. Mills, A. C. (92) 231 ; 61 L. J. Q. B. 830 ; 66 L. T. 690 ; 41 W. R. 129 381 Charlton v. Durham (E. of), 4 Ch. 433 ; 20 L. T. 467 ; 17 W. R. 995 ,. 210 c xxxiv TABLE OF CASES. PAGE Charlton v. Rolleston, 28 Ch. Div. 237 ; 54 L. J. Ch. 233 ; 51 L. T. 612 .. 299 v. West, 30 B. 124 147 Charterv.C, L. R. 7 H. L. 364; 43L. J. P. 73 637 Chastey v. Ackland, 2 Ch. (95) 389; 64 L. J. Q. B. 523; 72 L. T. 845; 43 W. R. 627 ; A. C. (97) 155 ; 66 L. J. Q. B. 518 ; 76 L. T. 430 .. 318 Chatteris V. Young, 2 Russ. 183 154 Chatterton v. Watney, 17 Ch. Div. 259 ; 50 L. J. Ch. 535 ; 44 L. T. 391 ; 29 W. R. 573 416 Chattock V. MuUer, 8 Ch. D. 177 455 Chcavin v. Walker, 5 Ch. Div. 850 ; 46 L. J. Ch. 686 ; 37 L. T. 300.. 337, 338 Chennell, Be, 8 Ch. Div. 492; 47 L. J. Ch. 583; 38 L. T. 494; 26 W. R. 595 42 Chesham (Lord), Re, 31 Ch. D. 466 ; 55 L. J. Ch. 401 ; 54 L. T. 154; 34 W. R. 321 110,126 Chesterfield, Re, 24 Ch. D. 643 ; 52 L. J. Ch. 958 ; 49 L. T. 261 ; 32 W. R. 361 56 v. Janssen, 2 Ves. Sen. 125 508,519 Cheston v. Wells, 2 Ch. (93) 151 ; 62 L. J. Ch. 468 ; 68 L. T. 197 ; 41 W. R. 374 .. 445 Chetham v. Hoare, 9 Eq. 571 ; 39 L. J. Ch. 376 ; 22 L. T. 57 .. .. 81 Chichester (Lord) v. Coventry, L. R, 2 H. L. 71 ; 17 L. T. 35 ; 15 W. R. 849 129, 131, 132, 133, 134, 137, 138, 139, 147 V. Donesall (M. of), 5 Ch. 497 ; 39 L. J. Ch. 694 ; 22 L. T. 458 ; 18W. R. 53r 405 V. Quatrefages, P. (95) 186 ; 64 L. J. P. 79 ; 72 L. T. 475 ; 43 W. R. 667 153 Chifferiel, Re, 40 Ch. D. 45 ; 58 L. J. Ch. 263 ; 60 L. T. 99 ; 37 W. R. 120 .. 466 Child V. Thorley, 16 Ch. D. 151 ; 29 W. R. 417 210 Childers V. C, 1 D. & J. 482 5,33,34 Chillingworth v. Chambers, 1 Ch. (96) 685; 65 L. J. Ch. 343; 74 L. T. 34; 44W. R. 388. 61,62,63,66,72 Chilton V. Progress &c. Co., 2 Ch. (95) 29 ; 64 L. J. Ch. 510; 72 L. T. 442; 43W. R. 456. 342 Chinnock v. Ely (M. of), 2 H. & M. 220 ; 4 D. J. & S. 638 .. .. 454, 485 Cholmeley School (Wardens of) v. Sewell, 2 Q. B. (93) 254 ; 62 L. J. Q. B. 476; 69L. T. 118; 41 W. R. 637 274 V. , 2 Q. B. (94) 906 ; 63 L. J. Q. B. 820;71L.T.88 271, 27S Cholmondeley V. Clinton, 2 J. & W. 134 439 Christchurch Inclosure Act, Re, 38 Ch. Div. 520; 57 L. J. Ch. 564; 58L. T. 827 8 Christian v. Devereus, 12 Sim. 264 ,. ., 194,197 V. Field, 2 Ha. 177 389 Christie v. Davey, 1 Ch. (93) 316; 62 L. J. Ch. 439 310 V. Northern &c. Society, 43 Ch. D. 62; 59 L. J. Ch. 210 ; 61 L. T. 796 ; 38 W. R. 280 411 V. Ovingtoa, 1 Ch. D. 279 ; 24 W. R. 204 231 V. Taunton &c. Co., 2 Ch (93) 175 ; 62 L. J. Ch. 385 ; 68 L. T. 638; 41W. R. 475 593,594 Christy v. Van Tromp, W. N. (86) 111 423 Chugg V. C, W. N. (74) 185 58 Churchill, Re, 39 Ch. D. 174; 58 L. J. Ch. 136 ; 59 L. T. 597 ; 36 W. R. 805 169, 171 578 V. C, 5 Eq. 44; 37L. J. Ch. 92; 16 W. R. 182 .. .. .. ' 121 Citizens Bk. of Louisiana v. First &c. Bk., L. R. 6 H. L. 352 ; 43 L. J. Ch. 269 ; 22W. R. 194 512,599 TABLE OF CASES. XXXV PAGE Civil Service Supply Assn. V. Dean, 13 Ch. D. 512 .. ' 337 Clack V. Carlon, 7 .Fur. N. S. 441 ; 30 L. J. Ch. 639 ; 4 L. T. 361 ; 9 W. E. 568 41 Clark, Be, 2 Q. B. (94) 393 ; 63 L. J, Q. B. 806 ; 70 L. T. 751 .. .. 481 , i?e, 2 Q. B. (98) 330 229 V. Adie, 10 Ch. 667 ; 33 L. T. 295 ; 23 W. R. 898 325 V. , 2 App. 315 ; 46 L. J. Ch. 585 ; 36 L. T. 923 .. ..322, 325, 326 v. Burgh, 2 Coll. 221 220 V. C, 9 App. 733 ; 52 L. J. P. C. 99; 51 L. T. 750 V. Cort, 1 Cr. & Ph. 154 V. Girdwood, 7 Ch. Div. 9 ; 47 L. J. Ch. 116 ; 37 L. T. 614 ; 26 W. R. 90 -- V. Hoskins, 36 L. J. Ch. 689 ; 16 L. T. 730; 15 W. R. 1161 .. ~ V. London School Board, 9 Ch. 120 ; 43 L. J. Ch. 421 ; 29 L. T. 22 W. R. 354 903; 525 592 530, 534 63 312 Clarke, Be, 2 Ch. (96) 38 ; 65 L. J. Ch. 629 ; 74 L. T. 631 .. .. 353, 354 V. Birley, 41 Ch. D. 422 ; 58 L. J. Ch. 616 ; 60 L. T. 948 ; 37 W. R. 746 582 v. Franklin, 4 K. & J. 257 94 V. Palmer, 21 Ch. D. 124 ; 51 L. J. Ch. 634 ; 48 L. T. 857 .. 408, 412 V. Ramuz, 2 Q. B. (91.) 456 ; 60 L. J. 0. B. 679 ; 65 L. T. 667 468, 487 — V. Willott, L. R. 7 Ex. 313 ; 41 L. J. Ex. 197 ; 21 W. R. 73 .. 27 Clarkson v. Henderson, 14 Ch. D. 348; 49 L. J. Ch. 289; 43 L. T. 29; 28 W. R. 907 386,436 Clay & Tetley, Be, 16 Ch. Div. 3 ; 43 L. T. 402 ; 29 W. R. 5 177 Clayton, Be, 2 Ch. (95) 212 ; 64 L. J. Ch. 615 ; 72 L. T. 764 ; 43 W. R. 549 481, 496 V. Leech, 41 Ch. Div. 103 ; 61 L. T. 69 ; 37 W. R. 663 467, 468, 544 Clayton's Case, 1 Mer. 572 71,595 Cleather v. Twisden, 28 Ch. Div. 340 ; 54 L. J. Ch. 408 ; 52 L. T. 330 ; 33W. R. 435 609,610 Cleaver v. Mutual &c. Assn., 1 Q. B. (92) 147 ; 61 L. J. Q. B. 128 ; 66 L. T. 220 ; 40 W. R. 230 11 Clegg V. Rowland, 3 Eq. 368; 36 L.J. Ch. 137 ; 15 L. T. 385; 15 W. R. 251 .. 213 Clement v. Cheesman, 27 Ch. D. 631 ; 54 L. J. Ch. 158 ; 33 W. R. 40 203, 204 Clements, Be, 1 Ch. (94) 665 ; 63 L. J. Ch. 326 ; 70 L. T. 682 ; 42 W. R. 374 196 197 V. Hall, 2 D. & J. 173 _ V, L. & N. W. Ry. Co., 2 Q. B. (94) 482; 63 L. J. Q. B 70 L. T. 896 ; 42 W. R. 663 , V. Norris, 8 Ch. Div. 129 ; 47 L. J. Ch. 546 ; 38 L. T. 591 , 533 837; 518 630 116 97, 107 55 85, Clementson v. Gandy, 1 Keen 309 Cleveland (D. oQ, Be, 3 Ch. (93) 244 ; 62 L. J. Ch. 955 ; 69 L. T. 735 , Be, 2 Ch. (95) 542 ; 65 L. J. Ch. 29 ; 73 L. T. 313 Climie v. Wood, L. R. 4 Ex. 328; 38 L. J. Ex. 223 ; 20 L. T. 1012 .. ..381 Climpson v. Coles, 23 Q. B. D. 465 ; 58 L. J. Q. B. 346 ; 61 L. T. 116 ; 38W. R. 110 381 Clinan V. Cooke, 1 Sch. & Lef. 22 459 Clive v. Beaumont, 1 D. G. & Sm. 397 .. .. 496 V, C, Kay606 196 Close V. C, 4 D. M. & G. 176 583 Clou^h, Be, 31 Ch. D. 324 ; 55 L. J. Ch. 77 ; 53 L. T. 716 ; 34 W. R. 96 .. 623 Clowes, Be, 1 Ch. (93) 214 ; 68 L. T. 395 ; 41 W. R. 69 193 Coaks V. Boawell, 11 App. 232 ; 55 L. J. Ch. 761 ; 55 L. T. 32 517, 525, 529, 533 Cobum V. Collins, 35 Ch. D. 373 ; 56 L. J. Ch. 504 ; 56 L. T. 431 ; 35 W. R. 610 71, 431 Cochrane v. Macnish, A. C. (96) 225 ; 65 L. J. P. C. 20 ; 74 L. T. 109 .. 338 c 2 xxxvi TABLE OF CASES. PAGE Cocbrane v. Moore, 25 Q. B. Div. 57 ; 59 L. J. Q. B. 377 ; 63 L. T. 153 ; 38W. R. 588 14 V. Willis, 1 Ch. 58 ; 35 L. J. Ch. 36 ; 11 Jur. N. S. 870 ; 13 L. T. 33i> ; 14W. R. 19 539 Cockburn v. Edwards, 18 Ch. Div. 449 ; 51 L. J. Ch. 46 ; 45 L. T. 500 398, 403 Cockcroft, Re, 24 Ch. D. 94; 52 L. J. Ch. 811 ; 49 L. T. 497 ; 32 W. R. 223 190 Cockerell v. Cholmeley, 1 CI. & F. 60 559 Codrington v. C, L. R. 7 H. L. 854; 45 L. J. Ch. 660; 34 L. T. 221; 24 W. R. 648 110, 111, 119 Co^an V. Duffield, 2 Ch. Div. 44 ; 45 L. J. Ch. 307 ; 34 L. T. 593 ; 24 W. R. 905 28, 29 Coghlan, Be, 3 Ch. (94) 76 ; 63 L. J. Ch. 671 ; 71 L. T. 186 ; 42 W. R. 634 163 Cole, i?e, 8 Eq. 271 ; 22 L. T. 221 198 V. Eley, 2 Q. B. (94) 350 ; 63 L. J. Q. B. 682 ; 70 L. T. 892 ; 42 W. R. 561 428 «. Langford, 2 Q. B. (98) 36 537 Coleman, Re, 39 Ch. Div. 443 ; 58 L. J. Ch. 226 ; 60 L. T. 127 .. 24, 251 V. Bucks &c. Bk., 2 Ch. (97) 243; 66 L. J. Ch. 564; 76 L. T. 684; 45W. R. 616 60,65,73 V. LlewelUn, 34 Ch. Div. 143 ; 56 L. J. Ch. 1 ; 55 L. T. 647 ; 35 W. R. 82 445 V. Mellersh, 2 M. & G. 314 588 Coleridge, Re, 2 Ch. (95) 704 ; 73 L. T. 206 ; 44 W. R. 59 42 Coles V. Pack, L. R. 5 C. P. 65 ; 39 L. J. C. P. 63 ; 18 W. R. 292 .. .. 580 Colgan, Re, 19 Ch. D. 305 ; 51 L. J. Ch. 180 ; 46 L. T. 152 ; 30 W. R. 266 .. 249 CoUard v. Marshall, 1 Ch. (92) 571; 61 L. J. Cu. 268; 66 L. T. 248; 40W. R. 473 320 Collier w. Brown, 1 Cox 428 474 V. McBean, 1 Ch. 81 ; 35 L. J. Ch. 144; 12 Jur. N. S. 1 ; 13 L. T. 484 ; 14W. R. 156 496 Colling, Re, 32 Ch. Div. 333; 55 L. J. Ch. 486; 54 L. T. 809; 34 W. R. 464 492 Collinge, Re, 36 Ch. D. 516 ; 57 L. J. Ch. 219 ; 57 L. T. 221 ; 36 W. R. 264 361 Collins, Re, 32 Ch. D. 229; 55 L. J. Ch. 672; 55 L. T. 21; 34 W. R. 650 .. 249 V. Barker, 1 Ch. (93) 578 ; (2 L. J. Ch. 316 ; 68 L. T. 572 ; 41 W. R. 442 621,632 V. Castle, 36 Ch. D. 243 ; 57 L. J. Ch. 76 ; 57 L. T. 764 ; 36 W. R. 300 287, 289, 316 V. C, 31 B. 346 489 CoUinson v. Jeffery, 1 Ch. (96) 644 ; 65 L. J. Ch. 375 ; 74 L. T. 78 .. .. 445 V. Lister, 20 B. 356 211 CoUis V. Laugher, 3 Ch. (94) 659 ; 63 L. J. Ch. 851 ; 71 L. T. 226 ; 43 W. R. 202 314 V. Robins, 1 D. G. & Sm. 131 185 Colman, Re, 2 Ch. (91) 402 ; 60 L. J. Ch. 550 ; 64 L. T. 507 ; 39 W. R. 488 329 , Re, 2 Ch. (94) 115 ; 63 L. J. Ch. 403; 70 L. T. 398; 42 W. R. 555 329 Colonial Bank v. Cady, 15 App. 267 ; 63 L. T. 27 ; 39 W. R. 17 .. 407, 408 V. Exchange &c. Bank, 11 App. 84; 55 L. J. P. C. 14; 54 L. T. 256 ; 34 W. R. 417 536 V. AVliiuney, 11 App. 426 ; 56 L. J. Ch. 43 ; 55 L. T. 362 ; 34W. R. 705 383,407 Colyer, Re, 55 L. T. 344 46 v. Finch, 5 H. L. C. 905 71,72 Commercial Bk. of Tasmania v. Jones, A. C. (93) 313 ; 62 L. J. P. C. 104 ; 68L. T. 776; 42 W. R. 256 583 Commissifjners of Income Tax v. Pemsel, A. C. (91) 531 ; 61 L. J. Q. B. 265 ; 65 L. T. 621 ' ft I TABLE OF CASES. XXXVll PAGE Commissioners of Inland Kevenue v. Scott, 2 Q. B. (92) 152 ; 61 L. J. Q. B. 432 ; 67 L. T. 173 ; 40 W. R. 632 8 Comptou, He, 30 Ch. Dlv. 15 ; 54 L. J. Ch. 904 ; 53 L. T. 410 .. 179, 180 V. Bagley, 1 Ch. (92) 313 ; 61 L. J. Oh. 113 ; 65 L. T. 706 .. 463, 486 Comyns V. Hvde, 72L. T. 250; 43 W. R. 266 341 Condon v. Vollum, 57 L. T. 154 240 Constable V. C, 11 Ch. D. 686 598 Continental &c. Co., Be, 1 Ch. (97) 511 ; 66 L. J. Ch. 273 ; 76 L. T. 229 ; 45 W. R. 313 4'A438 Couway V. Fenton, 40 Ch. D. 512 ; 58 L. J. Ch. 282 ; 59 L. T. 928 ; 37 W. R. 156 46 Cook, Be, 1 Ch. (96) 923 ; 65 L. J. Ch. 654 ; 74 L. T. 652 ; 44 W. K. 646 362 V. Addison, 7 Eq. 466 ; 38 L. J. Ch. 322 ; 20 L. T. 212 ; 17 W. R. 480 71 V. Andrews, 1 Ch. (97) 266 ; 66 L. J. Ch. 137; 76 L. T. 16 .. .. 499 v. Gregson, 3 Dr. 547 169 Cooke, Ex parte, 4 Ch. Div. 123 ; 46 L. J. Bky. 52; 35 L. T. 649 ; 25 W. R. 171 70,71 , Be, 7& L. T. 106 481 V. C, 38 Ch. D. 202 ; 59 L. T. 693 ; 06 W. R. 756 121 V. Crawford, 13 Sim. 91 38 V. Forhes, 5 Eq. 166; 37 L. J. Ch. 178; 17 L. T. 371 310 Coombs V. Wilkes, 3 Ch. (91) 77 ; 61 L. J. Ch. 42 ; 65 L. T. 56 ; 40 W. R. 77 454 Coope V. Cresswell, 2 Ch. 112 ; 36 L. J. Ch. 114 ; 15 L. T. 427 ; 15 W. R. 242 170 Cooper, Be, 4 Ch. D. 802 ; 46 L. J. Ch. 133 ; 35 L. T. 890 ; 25 W. R. 301 47 , Be, 20 Ch. Div. 611 ; 51 L. J. Ch. 862; 47 L. T. 89; 30 W. R. 648 409, 412, 415 V. C, 5 Ch. 203 ; 39 L. J. Ch. 240 ; 22 L. T. 1 ; 18 W. R. 299 .. 565 • V. —, 8 Ch. 813 ; 43 L. J. Ch. 158 ; 29 L. T. 321 ; 21 W. R. 921 139 V. — , L. R. 7 H. L. 53 ; 44 L. J. Ch. 6 ; 30 L. T. 409 ; 22 W. R. 713 122, 126 V. Crabtree, 20 Ch. Div. 589 ; 51 L. J. Ch. 585 ; 46 L. T. 573 ; 30W. R. 579 319 • V. Evans, 4 Eq. 45 ; 36 L. J. Ch. 431 ; 15 W. R. 609 571 V. L. B. & S. C. Ry. Co., 4 Ex. D. 88 ; 48 L. J. Ex. 434 ; 40 L. T. 324; 27 W. R. 474 260 V. Macdonald, 16 Eq. 258 ; 42 L. J. Ch. 533 ; 28 L. T. 693 .. 133, 138 V. Martin, 3 Ch. 47 ; 17 L. T. 587 ; 16 W. R. 234 .. .. 122, 555 V. Phibbs, L. R. 2 H. L. 149 ; 16 L. T. 678 ; 15 W. R. 1049 .. ..538 V. Stephens, 1 Ch. (95) 567 ; 64 L. J. Ch. 403; 72 L. T. 390; 43 W. R. 444 343,347 V. Straker, 40 Ch. D. 21 ; 58 L. J. Ch. 26 ; 59 L. T. 849 ; 37 W. R. 137 313 V. Whittingham, 15 Ch. D. 501 ; 49 L. J. Ch. 752 ; 43 L. T. 16 ; 28 W. R. 720 348 Coote V. Judd, 23 Ch. D. 727 ; 53 L. J. Ch. 36 ; 48 L. T. 205 ; 31 W. R. 423 344 Copis w. Middleton, T. & R. 224 .. 577 Corbett v. Jonas, 3 Ch. (92) 137 ; 62 L. J. Ch. 43 ; 67 L. T. 191 .. 314, 316 V. Plowden, 25 Ch. Div. 678; 54 L. J. Ch. 109; 50 L. T. 740; 32W. R. 667 395,464 Cord well, Be, 20 Eq. 644 ; 44 L. J. Ch. 746 ; 23 W. R. 826 .. ., .. 195 Cork (E. of) V. Russell, 13 Eq. 210 ; 41 L. J. Ch. 226 ; 26 L. T. 230 .. .. 437 CornCuot V. Fowke, 6 M. & W. 358 513 Cornish, Be, 1 Q. B. (96) 99 ; 65 L. J. Q. B. 106 ; 73 L. T. 602 ; 44 W. R. 161 82 Cornwall &c. Co., Be, 2 Ch. (97) 74; 66 L. J. Ch. 561; 76 L. T. 832; 46W. R. 5 .. .. 433 XXXviii TABLE OF CASES. PAGE Cornwallis, Be, 32 Ch. D. 388 ; 55 L. J. Ch. 716 ; 54 L. T. 844 .. .. 278 Corsellis, Be, 34 Ch. Div. 675 ; 56 L. J. Ch. 294 ; 56 L. T. 411 ; 35 W. E. 309 40,41 Corser v. Cartwright, 8 Ch. 971 ; 29 L. T. 596 ; 21 W. E. 938 173, 174, 175, 178 V. , L. E. 7 H. L. 731 ; 45 L. J. Ch. 605 74, 173, 175, 178, 179 Cory V. The " Mecca," A. C. (97) 286 ; 66 L. J. P. 86 ; 76 L. T, 579 ; 45 W. K. 667 595 Cosh, Be, 1 Ch. (97) 9 ; 66 L. J. Ch. 28 ; 75 L. T. 365 ; 45 W. E. 117 .. 478 Cosier, Be, 1 Ch. (97) 325 ; 66 L. J. Ch. 236 ; 76 L. T. 31 ; 45 W. E. 376 ; 67L. J. Ch. 502 140 Cotterell v. Stratton, 8 Ch. 295 ; 42 L. J. Ch. 417 ; 28 L. T. 218 ; 21 W. E. 234 448 Cotton, Be, 1 Ch. D. 232 ; 45 L. J. Ch. 201 ; 33 L. T. 720 ; 24 W. E. 243 197, 251 , Be, 19 Ch. Div. 624 ; 51 L. J. Ch. 514; 46 L. T. 813; 30 W. E. 610 104, 105 , Be, 40 Ch. D. 41 ; 58 L. J. Ch. 174 ; 37 W. E. 232 .. .. 119, 121 Cottrell, Be, 12 Eq. 566 ; 41 L. J. Ch. 70 ; 25 L. T. 405 ; 19 W. E. 1076 .. 248 V. C, 28 Ch. D. 628 ; 54 L. J. Ch. 417 ; 52 L. T. 486; 33 W. E. 361 103 V. Finney, 9 Ch. 541 ; 43 L. J. Ch. 562 ; 30 L. T. 733 386, 400, 447 Couch V. Stratton, 4 Ves. 391 161 County &c. Bank v. Eudry &c. Co., 1 Ch. (95) 629; 64 L. J. Ch. 451; 72 L. T. 375 ; 43 W. E. 486 383,402 Court V. Berlin, 2 Q. B. (97) 396 ; 66 L. J. Q. B. 714 ; 77 L. T. 293 ; 46 W. E. 55 607,611,623 V. Buckland, 1 Ch. D. 605 ; 45 L. J. Ch. 214 .. 32, 85 Cousins, ii-e, 30 Ch. Div. 203 462 , i?e, 31Ch.D. 671; 55L.J. Ch. 662; 54L. T. 376; 34 W. E. 393 .. 74 Coutts V. Acworth, 9 Eq. 519 ; 39 L. J. Ch. 649 ; 18 W. E. 482 .. ., 113 Coverdale v. Eastwood, 15 Eq. 121; 42 L. J. Ch. 118; 27 L. T. 646; 21\V. E. 216 159 Cowdry V. Day, 1 Giff. 316 386 Cowin, Be, 33 Ch. D. 179; 56 L. J. Ch. 78 ; 34 W. E. 735 52 Cowles V. Gale, 7 Ch. 12; 41 L. J. Ch. 14; 25 L. T. 524 ; 20 W. E. 70 .. 461 Cowley V. Byas, 5 Ch. Div. 944; 37 L. T. 238 ; 26 W. E. 1 281 • (E.) V. Wellesley, 1 Eq. 656 ; 14 L. T. 245; 14 W^ E. 528 .. .. 302 Cowper V. Stoneham, 68 L. T. 18 61,65 Cox, Be, 2 Ch. (91) 109 ; 64 L. T. 733 ; 39 W. E. 412 .. .. 467, 478, 501 f. Barker, 3 Ch. Div. 359 ; 35 L. T. 685 491 V. Bennett, 1 Ch. (91) 617 ; 60 L. J. Ch. 651 ; 64 L. T. 380 ; 39 VV. E. 401 230 -y. C, 3 K. & J. 554 357 V. Willoughby, 13 Ch. D. 863; 49 L. J. Ch. 237; 42 L. T. 125; 28 W. E. 5u3 619 Coxe V. Basket, 3 Ves. 155.. .. .. ,. .. .. .. .. 175 Coxen V. Kowland, 1 Ch. (94) 406 ; 63 L. J. Ch. 179 ; 70 L. T. 89 ; 42 W. E. 568 120 Crabtree V. Bramble, 3 AtK. 680 104 Cracknall v. Janson, 11 Ch. Div. 1 ; 40 L. T. 640; 27 W. E. 851 .. 25, 391 Cradock V. Scottish &c. Institution, 70 L. T. 718 424 Crawford v. Toogood, 13 Ch. D. 153; 49 L. J. Ch. 108; 41 L. T. 549; 28 W. E. 248 463 Crawley, Be, 28 Ch. D. 431 ; 54 L. J. Ch. 652 ; 52 L. T. 460 ; 33 VV. E. 611 46, 483 Crawshay, Be, 43 Ch. D. 615 ; 59 L. J. Ch. 395 ; 62 L. T. 489 ; 38 W. E. 600 r. , 562,564 Cray thorns V. Swinburne, 14 Ves. 160 570 Credland v. Potter, 10 Ch. 8 ; 44 L. J. Ch. 160 ; 31 L. T. 522; 23 W. E. 36" 415 TABLE OF CASES. XXXIX PAGE Cresswell V. Davidson, 56 L. T. 811 476 Crichtoii V. C, 1 Ch. (96) 870; 65 L. J. Ch. 491 ; 74 L. T. 357 .. 63, 71, 145 Crockford y. Alexander, 15 Ves. 138 499 Croft V. LoDdoa &c. Co., 14 Q. B. Div. 347; 54 L. J. Q. B. 277; 52 L. T. 374 266 Crompton v. Cathcart, W. N. (86) 104 35 Crook V. Corpn. of Seaford, 6 Ch. 551 ; 25 L. T. 1 ; 19 W. R. 938 .. .. 465 Croo.ii, Re, 1 Ch. (91) 695 ; 60 L. J. Ch. 373 ; 64 L. T. 53; 39 W. R. 286 .. 528 Croshaw V. Lyndhurst Ship Co., 2 Ch. (97) 154; 66 L. J. Ch. 576; 76 L. T. 553 ; 45 W. R. 570 191 Cross, Be, 20 Ch. Div. 109 ; 51 L. J. Ch. 645 ; 45 L. T. 777 ; 30 W. R. 376 .. 80 Crossley, Re, 1 Ch. (97) 928 ; 66 L. J. Ch. 558 ; 76 L. T. 419; 45 W. R. 615 6 V. Lightowler, 2 Ch. 478; 36 L. J. Ch. 584 311 V. Maycuck, 18 Eq. 18 ) ; 43 L. J. Cli. 379 ; 22 W. R. 387 .. .. 455 Crossmaa v. Richards, W. N. (88) 167 ., .. .. .. .. .. 367 Crowe V. Clay, 9 Ex. 601; 23 L. J. Ex. 150; 18 Jur. 654 548 Crowther, Re, 2 Ch. (95) 56 ; 72 L. T. 762 ; 64 L. J. Ch. 537 ; 43 W. R. 571 .. 54 V. Elgood, 34 Ch. Div. 691 ; 56 L. J. Ch. 416 ; 56 L. T. 415 ; 35W. R. 369 77,78,80 Croydon Gas Co. v. Dickinson, 2 C. P. Div. 46; 46 L. J. C. P. 157; 36 L. T. 135 ; 25 W. R. 157 583 Cruikshank v. Duffin, 13 Eq. 555 ; 41 L. J. Ch. 317 ; 26 L. T. 121 ; 20 W. R. 354 210 Cruttwell V. Lye, 17 Ves. 335 614 Cullen v. Kuowles, 2 Q. B. (98) 380 438, 6u9 CuUerce v. London &c. Society, 25 Q. B. Div. 485 ; 59 L. J. Q. B. 525 ; 63 L. T. 511; 39 W. R. 88 .. .. 36 Cullwick V. SwindeU, 3 Eq. 249 ; 36 L. J. Ch. 173 ; 15 W. R. 216 .. .. 381 Culverhouse, Re, 2 Ch. (96) 251 ; 65 L. J. Ch. 484 ; 74 L. T. 347 ; 45 W. R. 10 , 192 Cumberland &c. Co. v. Maryport &c. Co., 1 Ch. (92) 92 ; 61 L. J. Ch. 335 ; 66L. T. 103 423 Cummins v. Fletcher, 14 Ch. Div. 699; 49 L. J. Ch. 563; 42 L. T. 859; 28 W. R. 772 391, 392 Cunnack v. Edwards, 2 Ch. (96) ^^79 ; 65 L. J. Ch. 801 ; 75 L. T. 122 ; 45 W. R. 99 8,31 Cunningham, Re, 2 Ch. (91) 567 ; 60 L. J. Ch. 591 ; 64 L. T. 558 ; 39 W. R. 469 38,231 Curnick v. Tucker, 17 Eq. 320 9 Currey, Re, 32 Ch. D. 361 ; 55 L. J. Ch. 906 ; 54 L. T. 665 ; 34 W. R. 541 163,226 Currie, Re, A. C. (98) 347 ; 67 L. J. P. C. 66 324 Curteis v. Wormald, 10 Ch. Div. 172 ; 40 L. T. 108 ; 27 W. R. 419 .. .. 100 Curwen v. Milburn, 42 Ch. Div. 424 ; 62 L. T. 278; 38 W. R. 49 .. .. 432 Dacre v. Patrickson, 1 Dr. & Sm. 182 188 Dageuham Dock Co., Re, 8 Ch. 1022 ; 43 L. J. Ch. 261 ; 21 W. R. 898 .. 485 Dagnall, Re, 2 Q. B. (96) 407 ; 65 L. J. Q. B. 666 ; 75 L. T. 142 ; 45 W. R. 79 228 Daking v. Whimper, 26 B. 568 26 Dale, Re, W. N. (92) 56 23 V. Hamilton, 2 Ph. 266 619 Daley v. Desbouverie, 2 Atk. 261 508 xl TABLE OF CASES. PAGE Dallow V. Garrold, 14 Q. B. Div. 543; 54 L. J. Q. B. 76; 52 L. T. 240; 33W. R. 219 416,428 D.ilston V. Coatsworth, 1 P. W. 731 549 Dalton V. Angus, 6 App. 740; 50 L. J. Q. B. 689; 44 L. T. 844; 30 W. R. 191 300 V. Fitzgerald, 2 Ch. (97) 86; 66 L. J. Ch. 604; 76 L. T. 700; 45 W. R. 685 435 Dames, Ke, 29 Ch. Div. 626 ; 54 L. J. Ch. 771 ; 53 L. T. 177 ; 33 W. R. 685 .. 469 Dance v. Goldingham, 8 Ch. 902 ; 42 L. J. Ch. 777 ; 29 L. T. 166 ; 21 W. R. 761 474 Dane v. Morti^age Insurance Corpn., 1 Q. B. (94) 54 ; 63 L. J. Q. B. 144 ; 70 L. T. 83; 42 W. R. 227 583 Daniel, Ee, lb L. T. 143 626 V. Whitehouse, 1 Ch. (98) 685; 67 L. J. Ch. 262 337 Daniell v. Sinclair, 6 App. 181 ; 50 L. J. P. C. 50 ; 44 L. T. 257 ; 29 W. R. 569 386,403,536 Danson, Re, W. N. (95) 102 58 D.irbey v. Whitaker, 4 Dr. 134 470 Darke v. Williamson, 25 B. 622 431 Darley «. D., a Atk. 399 224 Darling, Re, 1 Ch. (96) 50 ; 65 L. J. Ch. 62 ; 73 L. T. 382 ; 44 W. R. 75 .. 8 Darlington V. Hamilton, Kay 550.. .. .. .. .. .. ,. 476 Dartnall, Re, 1 Ch. (95) 474; 64 L. J. Ch. 341 ; 72 L. T. 404; 43 W. R. 644 53 Dashwood V. Biilkeley, 10 Ves. 230 508 V. Jermyn, 12 Ch. D. 776 ; 27 W. R. 868 159 V. Magniac, 3 Ch. (91) 306 ; 60 L. J. Ch. 809 ; 65 L. T. 811 297, 302, 303, 304, 305 Davenport, Re, 1 Ch. (95) 361; 64 L. J. Ch. 252; 71 L. T.875; 43 W. R. 217 225.234 w. Bishopp, 1 Ph. 698 18 V. Reg., 3 App. 115 ; 47 L. J. P. C. 8 ; 37 L. T. 727 .. 276, 277 Daveron, Re, 3 Ch. (93) 421 ; 63 L. J. Cli. 54 ; 69 L. T. 752 ; 42 W. R. 24 .. 54, 92, 96, 97 Davey v. Williamson, 2 Q. B. (98) 194 ; 67 L. J. Q. B. 699 ; 46 W. R. 571 397, 481 David V. Sabin, 1 Ch. (93) 523 ; 62 L. J. Ch. 347 ; 68 L. T. 237 ; 41 W. R. 398 470 Davidson, Re, 11 Ch. Div. 341 ; 40 L. T. 726 104, 105 Davies Case, 45 Ch. D. 537 ; 59 L. J. Ch. 450 ; 62 L. T. 628 ; 38 W. R. 571 36 , Re, 24 Ch. D. 190 ; 52 L. J. Ch. 720; 49 L. T. 624 .. .. 174, 177 , -Re, 2 Ch. (97)204; 66 L.J, Ch. 512 219 , Re, 2 Ch. (98) 142 83 v. Ashford, 15 Sim. 42 .. 103 V. D., 36 Ch. Div. 359; 56 L. J. Ch. 962; 58 L. T. 209; 36 W. H. 86 292 V. — , 38 Ch. D. 499 ; 57 L. J. Ch. 1093 ; 58 L. T. 514 ; 36 W. R. 399 302 V. Games, 12 Ch. D. 813 ; 28 VV. R. 16 615 V. London &c. Co., 8 Ch. D. 469 ; 47 L. J. Ch. 511 ; 38 L. T. 478 ; 26 W. R. 794 516, 571 V. Nicolson, 2 D. & J. 693 182, 212, 213 z;. Oity, 3o B. 2u8 5,33 v. Wright, 32 Ch. D. 220 423 Davis, Re, 40 (Jh. D. 601 ; 58 L. J. Ch. 143 ; 60 L. T. 100; 37 W. R. 217 75, 467,494 TABLE OF CASES. xli PAGE Davis, Re, 3 Ch. (91) 119 ; 61 L. J. Ch. 85; 65 L. T. 128 ; 39 W. K. 627 36, 164, 165, 197 V. Amer, 3 Dr. 64 631 V. D., 1 Ch. (94) 393 ; 63 L. J. Ch. 219 ; 70 L. T. 265 ; 42 W. E 312 603, 604, 605, 606, 614 V. Foreman, 3 Ch. (94) 654 ; 64 L. J. Ch. 187 ; 43 W. E. 168 .. 295 V. Freethy, 24 Q. B. Div. 519 ; 59 L. J. Q. B. 318 416 V. Leicester (Corporation of), 2 Ch. (94) 208 ; 63 L. J. Ch. 440 ; 70 L. T. 599 ; 42 W. K. 610 467 V. Mason, 5 T. E. 118 292 ■ v. May, 19 Ves. 383 404 V. Uphill, 1 Swans. 129 566 V. Whitmore, 28 B. 617 449 Davison, i?e, 13 Q. B. D. 50 ; 50 L. T. 635 609 Daw V. Herring, 1 Ch. (92) 284 ; 61 L. J. Ch. 5 ; 65 L. T. 782 ; 40 W. E. 61 619 V. Terrell, 33 B. 218 382 Dawkins v. Simonetti, 29 W. E. 228 ; 50 L. J. P. 30 ; 44 L. T. 266 .. .. 283 Dawson v. Beeson, 22 Ch. Div. 504; 52 L. J. Ch. 563; 48 L. T. 407; 31W. E. 537 618 V. D., 4Eq. 504 132,136,138 Dayi;. Hrownri^g, 10 Ch. Div. 294; 48 L. J. Ch. 173; 39 L. T. 553; 27 W. E. 217 279 V. Gudgen, 2 Ch. D. 209 ; 45 L. J. Ch. 263 ; 24 W. E. 425 .. 440, 449 -y. Newman, 2 Cox 77 474,503 V. Woolwich &c. Society, 40 Ch. D. 491 ; 58 L. J. Ch. 280; 60 L. T. 752 ; 37 W. E. 471 48 De Burgh Lawson, Re, 41 Ch. D. 568 ; 58 L. J. Ch. 561 ; 37 W. E. 797 173, 174 • , Re, 55 L. J. Ch. 46 : 53 L. T. 522 ; 34 W. E. 39 .. 113 — Caux V. Skipper, 31 Ch. Div. 635 ; 54 L. T. 481 ; 34 W. E. 402 .. .. 447 ~ Cordova V. De C, 4 App. 692 ; 41 L. T. 43 .. .. ' 46 — Francesco v. Barnum,'45 Ch. D. 430 ; 63 L. T. 438 ; 39 W. E. 5 .. .. 518 — Houhton, Re, 1 Ch. (96) 855 ; 65 L. J. Ch. 528 ; 74 L. T, 297 ; 44 W. E. 550 480 , Re, 2 Ch. (96) 385 ; 65 L. J. Ch. 667 ; 74 L. T. 6L3 ; 44 W. E. 635 29 V. Money, 2 Ch. 164 ; 15 L. T. 403 ; 15 W. E. 214 .. .. 491 — La Touche, Re, 10 Eq. 599 ; 40 L. J. Ch. 85 544 — Manneville V. De M., 10 Ves. 52 256 — Mestre v. West, A. C. (91) 264 ; 60 L. J. P. C. 66 ; 64 L. T. 375 .. 17, 18, 25 — Pereda v. De Mancha, 19 Ch. D. 451 ; 51 L. J. Ch. 204 ; 30 W. E. 226 .. 254 — Teissier, Re, 1 Ch. (93) 153 ; 62 L. J. Ch. 552 ; 68 L. T. 275 ; 41 W. E. 184 46 Deakin, Re, 3 Ch. (94) 565 ; 63 L. J. Ch. 779 ; 71 L. T. 838 ; 43 W. E. 70 9, 569 Dean, Re, 41 Ch. D. 552 ; 58 L. J. Ch. 693 ; 60 L. T. 813 7, 8 Deane, Re, 42 Ch. Div. 9 ; 61 L. T. 492 ; 37 W. E. 786 .. .. 63, 568 Dearie V. Hall, 3 Euss. 1 415 Debtor (A), i?e, 46 W. E. 675 ; 78 L. T. 824 ..228 Deeley, Re, 1 Ch. (95) 687; 64 L. J. Ch. 480; 72 L. T. 702; 43 W. E. 517 322 V. Perkes, A. C. (96) 496; 65 L. J. Ch. 912 ; 75 L. T. 233 .. .. 322 Deighton, Re, 1 Ch. (98) 458 ; 46 W. E. 341 ; 67 L. J. Ch. 240; 78 L. T. 430 469, 481 Delhasse, Ex parte, 7 Ch. Div. 511; 47 L. J. Ch. 65; 38 L. T. 106; 26W. E. 338 605,606 Delmar, Re, 2 Ch. (97) 163 ; 66 L. J. Ch. 555 ; 76 L. T. 594 ; 45 W. E. 630 8 Delves v. D., 20 Eq. 77 ; 23 W. E. 499 51U Del wick, Re, 2 Ch. (96) 705 ; 65 L. J. Ch. 905 322 xlii TABLE OF OASES. PAGE Denny v. Hancock, 6 Ch. 1 ; 23 L. T. 686 ; 19 W. R. 54 .. 472, 473, 475 Densham, Be, 2 Ch. (95) 176 ; 64 L. J. Ch. 634 ; 72 L. T. 614; 43 W. R. 515 333 Deut V. Auction Mart Co., 2 Eq. 238 ; 35 L. J. Ch. 555 ; 12 Jur. N. S. 4*7 ; 14 L. T. 827 ; 14 W. R. 709 312,315 Denton, iZc, 63 L. T. 105 119 V. Legge, 72 L. T. 626 590 D'Epiueuil, He, 20 Ch. D. 217 ; 51 L. J. Ch. 491 ; 30 W. R. 423 ; 46 L. T. 409 191 Derby Corpn. v. Derbyshire C. C, A. C. (97) 550 ; 66 L. J. Q. B. 701 ; 77 L. T. li'7; 46 W. R. 48 312 Dering y. E. of WiacheLsea, 1 Cox 318 .. .• 573 Derry v. Peek, 14 App. 337 ; 58 L. J. Ch. 864 ; 61 L. T. 265 ; 38 W. R. 33 514 Detmold, lie, 40 Ch. D. 585 ; 58 L. J. Ch. 495 ; 61 L. T. 21 ; 37 W. R. 442 24 Dever, Ex parte, 13 Q. B. Div. 766; 51 L. T. 437 ; 33 W. R. 290 .. .. 599 , Ex parte, 14 Q. B. Div. 611 ; 54 L. J. Q. B. 390; 53 L. T. 131 ; 33 W. II. (325 600 Devon (E. of), Be, 2 Ch. (96) 562 ; 65 L. J. Ch. 810 ; 75 L. T. 178 ; 45 W. R. 25 120,434 Dewar v. Maitianci, 2 Eq. 834; 14 L. T. 853 ; 14 W. R. 958 ; 12 Jur. N. S. 699 112, 124, 125 Dewdne}', h'x parte, 15 Ves. 479 .. .. .. .. ,. .. ..215 Devvhurst, Be, 2 Ch. (96) 137 ; 65 L. J. Ch. 618 ; 74 L. T. 388 ; 44 W. R. 672 330, 334 Dexter; Be, 2 Ch. (93) 262; 62 L. J. Ch. 545 ; 68 L. T. 793 330 D'Eyucourt v. Gregory, 1 Ch. D. 441 ; 45 L. J. Ch. 205 ; 24 W. R. 424 .. 278 Dibb V. Brooke, 2 y. B. (94) 338; 63 L. J. Q. B. 665; 71 L. T. 234; 42 V\^. R. 495 617 V. Walker, 2 Ch. (93) 429 ; 62 L. J. Oh. 536 ; 68 L. T. 610 ; 41 W. R. 427 434 Dibbins v. D., 2 Ch. (96) 348 ; 65 L. J. Ch. 724 ; 75 L. T. 137 ; 44 W. R. 595 462 Dick, Be, 1 Ch. (91) 423; 60 L. J. Ch. 177; 64 L. T. 32; 39 W. R. 225 .. 199 Dicker v. Angerstein, 3 Ch. D. 600; 45 L. J. Ch. 754 ; 24 W. R. 844 .. 379 Dickinson v. Dodds, 2 Ch. Div. 463; 45 L. J. Ch. 777; 34 L. T. 607; 24W.R. 594 , 455 Dicks V. Batten, W. N. (70) 173 359 V. Brooks, 15 Ch. Div. 22 ; 49 L. J. Ch. 812 ; 43 L. T. 71 ; 29 W. R. 87 350 V. Yates. 18 Ch. Div. 76 ; 50 L. J. Ch. 809 ; 44 L. T. 660 .. .. 342 Dickson, Be, 29 Ch. Div. 331 ; 54 L. J. Ch. 510 ; 52 L. T. 707 ; 33 W. R. 511 249 V. Lough, 18 L. R. Jr. 518 261 Diggles, i?e, 39 Ch. Div. 252 ; 59 L. T. 884 9 Dillon, Be, 44 Ch. Div. 76 ; 59 L. J. Ch. 420 ; 62 L. T. 614 ; 38 W. R. 369 201, 203, 204, 206 V. Parker, 1 Swans. 359 .. .. .. ,. .. .. 118,125 Dimes u. Scott, 4 Russ. 195 ., .. .. .. .. *. .. ' 55 Dimmock v. Hallett, 2 Ch. 21; 36 L. J. Ch. 146*; 12 Jur. N."s. 953*; 15L. T. 374; 15W. R. 93 475,511 Dmham v. Bradford, 5 Ch. 519 471,618,619,626,627 Disiierv. D., 1 P. W. 204 ,. - 87 Dixon, Be, 42 Ch. D. 306; 61 L. T. 718';* 38 W* R. 9l" *.'. '.'. '.'. 228 V. D., 9 Ch. D. 587 ; 48 L. J. Ch. 592 ; 40 L. T. 208 ; 27 W. R. 282 63, 80, 226 v. Gayfere, 21 B. 118 490 V. London, &c., Co., 1 App. 632; 46 L. J.'q. B. 617 ; 35'l. T.*559; 25 W. R. 142 .. .. ., ^, __ __ _ _^ _ 323 V. Muckleston, 8 Ch. i55 ; 42 L. J. Ch. 210 ; 27 L.'t. 804 ; 21 W. R. 178 382, 384, 410 TABLE OF CASES. xliii PAGE Dixon V. White, 8 App. 833 300 Dobson V. Festi, 2 Q. B. (91) 92 ; 60 L. J. Q. B. 481 ; 64 L. T. 551 ; 39 W. K. 481 609 Docwra, Re, 29 Ch. D. 693; 54 L. J. Ch. 1121 ; 53 L. T. 288; 33 W. 11.574 231 Dodd V. ChurtoD, 1 Q. B. (97) 562; 66 L. J. Q. B. 477; 76 L. T. 438; 45 W. R. 490 260 Dodds w. Hills, 2 H. & M. 424 76 Doering v. D., 42 Ch. D. 203 ; 58 L. J. Ch. 553 ; 37 W. R. 796 .. .. 66 Doetsch, Re, 2 Ch. (96) 836 ; 65 L. J. Ch. 855 ; 75 L. T. 69 ; 45 W. R. 57 608 Doherty v. Allman, 3 App. 709 ; 39 L. T. 129 ; 26 W. R. 513 .. 280, 301 Dolan V. Macdermot, 3 Ch. 676 ; 17 W. R. 3 8 Pooby V. Watson, 39 Ch. D. 178 ; 57 L. J. Ch. 865 ; 58 L. T. 943 ; 36 W. R. 764 433 Doody, Re, 1 Ch. (93) 129 ; 62 L. J. Ch. 14 ; 67 L. T. 650 ; 41 W. R. 49 41, 387 Douglas, Re, 35 Ch. Div. 472 ; 56 I.. J. Ch, 913 ; 56 L. T. 786 ; 35 W. R. 740 7 y. Archbutt, 2 D. & J. 148 41 v. Cidverwell, 4 D. F. & J. 20 .. .. 388 V. D., 12 Eq. 617; 41 L. J. Ch. 74; 25 L. T. 530; 20 W. R. 55 .. 126 Douglas-Norman, Re, 1 Ch. (98) 199 ; 67 L. J. Ch. 85 ; 77 L. T. 552 ; 46 W. R. 421 431 Doualass V. Pintsch's &c. Co., 1 Ch .(97) 176 ; 65 L. J. Ch. 919 ; 75 L. T. '332 ; 45 W. R. 108 328 Dowden V. Lewis, 14 Ir. L. R. C. L. 307 583 Downes -y. Bullock, 25 B. 54 *. 214 Dowse, i?e, 50 L. J. Ch. 285 ; 29 W. R. 563 148 V. Gorton, A. C. (91) 190 ; 60 L. J. Ch. 745 ; 64 L. T. 809 ; 40 W. R. 17 210, 211 Dracup, Re, 1 Ch. (94) 59 ; 63 L. J. Ch. 238 ; 69 L. T. 858 ; 42 W. R. 264 .. 358 Drage v. Hartopp, 28 Ch. D. 414 ; 54 L. J. Ch. 434 ; 51 L. T. 902 ; 33 W. R. 410 438 Drake v. Trefusis, 10 Ch. 364 ; 33 L. T. 85 ; 23 W. R. 762 102 Drew V. Guy, 3 Ch. (94) 25 ; 63 L. J. Ch, 547 ; 71 L. T. 220 .. .. 295 ■ v. Lockett, 32 B. 499 577 Drinkwater v. Ratcliffe, 20 Eq. 528; 44 L. J, Ch. 605; 33 L. T. 417; 24W. R. 25 .. .. 360,366 Driver v. Broad, 1 Q. B. (93) 744 ; 63 L. J. Q. B. 12 ; 69 L. T. 169 ; 41 W. R. 483 454 Drummond, Re, 1 Ch. (91) 524 ; 60 L. J. Ch. 258 ; 64 L. T. 246 ; 39 W. R. 445 231 Dubowski V. Goldstein, 1 Q. B. (96) 478 ; 65 L. J. Q. B, 397 ; 74 L. T. 180 ; 44 VV. R. 436 294 Du Cane, Re, 2 Ch. (98) 96 ; 67 L. J. Ch. 393 ; 78 L. T. 458 ; 46 W. R. 523 482 Duck V. Hates, 13 Q. B. Div. 843 ; 53 L. J. Q. B. 338 ; 50 L. T, 778 ; 32 W. R. 813 349 Duddell V. Simpson, 2 Ch. 102; 36 L. J. Ch. 70; 15 L. T. 305; 15 W. R. 115 469 Dudgeon, Re, 74 L. T. 613 8 v. Thomson, 3 App. 34 324,325 Dudley, Re, 12 Q. B. Div. 44 ; 53 L. J. Q. B. 16 ; 49 L. T. 737 ; 32 W. R. 264 77 Duffield V. Elwes, 1 Bli. N. S. 497 205 Dugdale v. D., 14 Eq. 234; 41 L. J. Ch. 565 ; 27 L. T. 706 .. .. 183, 184 Duncan v. Cashm, L. R, 10 C. P. 554 ; 44 L. J. C. P. 396 ; 32 L. T, 497 ; 23 W. R. 561 226 V. Dixon, 44 Ch. D. 211 ; 59 L. J. Ch. 437 ; 62 L. T. 319 ; 38 W. R. 700 518 V. N. & S. Wales Bk., 6 App. 1 ; 50 L. J. Ch. 355 ; 43 L, T, 706 ; 29 W. R. 763 577 Dunhill V. N. E. Ry. Co., 1 Ch. (96) 121 ; 65 L. J. Ch. 178; 73 L. T. 644; 44 W. R. 231 479 Dunlop, Re, 21 Ch. Div. 583 ; 48 L. T. 89 ; 31 W. R. 211 188 xliv TABLE OF CASES. PAGE Dunn V. Macdonald, 1 Q. B. (97) 555; GQ L. J. Q. B. 420; 7G L. T. 444; 45 W. ]l 355 .. .. .. .. .. .. .. . 511 Dunne i;. English, 18 Eq. 524; 31 L.T. 75 '.'. .. .. .. .. 526 Duusian V. Patterson, 2 Ph. 341 .. ., .. ,. .. .. .. 405 Durham v. Robertson, 1 Q. B. (98) 765 ; n7 L. J. Q, B. 484; 78 L. T. 438 .. 420, 598, 599 (E. of) V. Wharton, 3 CI. & F. 140 133 Duthy, Be, 1 Ch. (98) 419 ; 67 L. J. Ch. 218; 78 L. T. 223 ; 46 W. R. 300 479 Dutton V. Thompson, 23 Ch. Div. 278 ; 52 L. J. Ch. 661 ; 49 L. T. 109 542, 545 Dyer y. D., 2 Cox 92 33 Dyers' Co. v. King, 9 Eq. 438 ; 39 L. J. Ch. 339 ; 22 L. T. 120 ; 18 W. R. 404 315 Dykes, He, 7 Eq. 337 ; 20 L. T. 292; 17 W. R. 658 85, 92, 554 Dyson, lie, 2 Ch. (96) 7z0 ; 65 L. J. Ch. 791 ; 74 L. T. 759 ; 45 W. R. 28 .. 104, 178, 194 Eaglesfield v. M. of Londonderry, 4 Ch. Div. 693 ; 35 L. T. 822 ; 25 W. R. 190 ; affd. by D. P. ; 38 L. T. 303 ; 26 W. R. 540 ; W. N. (78) 98 515, 537 Eardley v. Knight, 41 Ch. D. 537; 58 L. J. Ch. 622; 60 L. T. 780; 37 W. R. 704 384, 447 Earlom- V. Saunders, Amb. 240 .. .. .. .. .. .. .. 89 East ]\folesey L. B. v. Lambeth &c. Co., 3 Ch. (92) 289 ; 62 L. J. Ch. 82 : 67L. T. 493 .. .. Eastern Telegraph Co. v. Dent, 78 L. T. 713 Eastman Photographic &c. Co. v. Comptroller-General, A. C. (98) 571 ; L. T. 195 Eaton, A'e, 70 L. T. 761 V. Lake, 20 Q. B. Div. 378 ; 57 L. J. Q. B. 227 ; 59 L. T. 100 ; 36 W. R. 277 .. 282 .. 275 79 .. 333 .. 55 TJ .. 349 9 V. Watts, 4 Eq. 151 ; 16 L. T. 311 Ebsworth, He, 42 Ch. Div. 23 ; 58 L. J. Ch. 665 ; 60 L. T. 841 ; 37 W. R. 657 467, 479, 481 Eccles V. Mills, A. C. (98) 360; 67 L. J. P. C. 25 ; 78 L. T. 206 ; 46 W. R. 398 288 Ecclesiastical Commrs. v. Kino, 14 Ch. Div. 213; 49 L. J. Ch. 529; 42 L. T. 201 ; 28 W. R. 544 314,315 V. Treemer, 1 Ch. (93) 166; 62 L. J. Ch. 119; 68 L. T. 11 ; 41 W. R. 166 559 — V. Wodehouse, 1 Ch. (95) 552 ; 64 L. J. Ch. 329 ; 72 L. T. 257 ; 43 W. R. 395 303 Edmonds v. Robinson, 29 Ch. D. 170; 54 L. J. Ch. 586; 52 L. T. 339 ; 33 W. R. 471 625,636 Edmunds v. Bushell, L. R. 1 Q. B. 97 ; 35 L. J. Q. B. 20; 12 Jur. N. S. 332 607 V. Waugh, 1 Eq. 418; 35 L. J. Ch. 234; 12 Jur. N. S. 326; 13L. T. 739; 14 W. R. 257 436 Edward V. Cheyne, 13 App. 385 ; .. ..226 Edwards, A'e, 10 Ch. Div. 605 ; 48 L. J. Cli. 233 ; 40 L. T. 113 ; 27 W. R. 611 238 • V. Carter, A. C. CJ3) 360; 63 L. J. Ch. 100 ; 69 L. T. 153 .. .. 518 V. Dennis, 30 Ch. Div. 454 ; 55 L. J. Ch. 125 ; 54 L. T. 112 331, 332 -y. Jones, 14 W. R. 815 224 ■ V. Warden, 9 Ch. 495 ; 43 L. J. Ch. 644 ; 30 L. T. 540 ; 22 W. R. 669 ; 1 App. 281 ; 45 L. J. Ch. 713 ; 35 L. T. 174 198, 199 V. West, 7 Ch. D. 858 ; 47 L. J. Ch. 463 ; 38 L. T. 481 ; 26 W. R. 507 91, 480, 547 TABLE OF CASES. xlv Page Edwards v. Wickwar, 1 Eq. 68 ; 35 L. J. Ch. 48 ; 13 L. T. 428 ; 14 W. R. 79 475 Edye, i?e, 39 W. R. 198 ; 63 L. T. 762 77 Egg V. Blayney, 21 Q. B. D. 107 ; 57 L. J. Q.B.460; 59L.T.65; 36W.R.893 479, 483 Egmont V. Smith, 6 Ch. D. 469 ; 46 L. J. Ch. 356 487, 493 Ehrmann, Be, 2 Ch. (97) 495 ; 66 L. J. Ch. 699 ; 77 L. T. 200 ; 45 AV. H. 698 330 Elcom, Be, 1 Ch. (94) 303 ; 63 L. J. Ch. 392 ; 70 L. T. 54 ; 42 W. R. 279 222 Elderton, Be, 25 Ch. D. 221 ; 53 L. J. Ch. 258 ; 50 L. T. 26 ; 32 W. R. 227 243 Eley V. Read, 76 L. T. 39 396 Elgood V. Harris, 2 Q. B. (96) 491 ; 66 L. J. Q. B. 53 ; 75 L. T. 419 ; 45 W. R. 158 594 Elias V. Snowdon &c. Co., 8 Ch. T>\v. 521; 38 L. T. 871; 26 W. R. 869; 4 App. 454; 48 L. J. Ch. 811; 41 L. T. 289; 28 W. R. 54 .. 302,402 Elibank V. Montolieu, 5 Ves. 737 221 Elleuor v. Ugle, AV. N. (95) 161 445 EUesmere &c. Co. v. Cooper, 1 Q. B. (96) 75; 65 L. J. Q. B. 173; 73 L. T. 567 ; 44 W. R. 254 571,573 Elliot, Be, 2 Ch. (96) 353 ; 65 L. J. Ch. 753 ; 75 L. T. 138 ; 44 W. R. 632 .. 200 v. Merry man, 2 Atk. 4 .. ,. ., ,. .. ,. .. 47 Elliott v. Cordell, 5 Madd. 149 222 • V. Dearsley, 16 Ch. Div. 322 ; 44 L. T. 198 ; 29 W. R. 494 .. 187, 190 Ellis V. Emmanuel, 1 Ex. Div. 157; 46 L. J. Ex. 25; 34 L. T. 553; 24W. R. 832 573,580 V. Goulton, 1 Q. B. (93) 350; 62 L. J. Q. B. 232; 68 L. T. 144; 41 W. R. 411 486 V. Manchester Carriage Co., 2 C. P. D. 13 ; 35 L. T. 476 ; 25 W. R. 229 316 • V. Marshall, 64 L. J. Q. B. 757 350 V. Rogers, 29 Ch. Div. 661; 53 L. T. 377 .. .. 467, 475, 478, 481, 495 v. Wright, 76 L. T. 522 485 Ellison V. E., 6 Ves. 656 11 Elmore V. Pirrie, 57 L. T. 333 452,485 Elphinstone (Lord) v. Monkknd &c. Co., 11 App. 332 ; 35 W. R. 17 .. 259 Else V. E., 13 Eq. 196 ; 41 L. J. Ch. 213 ; 25 L. T. 527 ; 20 W. R. 286 .. 475 Emden v. Carte, 19 Ch. D. 311 ; 51 L. J. Ch. 371 ; 45 L. T. 328 ; 30 W. R. 17 428 Emery, Be, 3 Ch. D. 300; 34 L. T. 846 ; 24 W. R. 917 537 Emma &c. Co. v. Grant, 11 (Jh. Div. 918 ; 40 L. T. 804 526 V. Lewis, 4 C. P. D. 396 ; 48 L. J. C. P. 257 ; 40 L. T. 168 ; 27 W. R. 836 526 Emmet, Be, 17 Ch. D. 142 ; 50 L. J. Ch. 341 ; 44 L. T. 172 ; 29 W. R. 464 64, 65 England, Be, 2 Ch. (95) 820; 65 L. J. Ch. 21; 73 L. T. 237; 44 W. R. 119 434 ■ v. Curling, 8 B. 129 619 V. Lavers, 3 Eq. 63; 15 W. R. 51 149 English &c. Co. V. Brunton, 2 Q. B. (92) 700 ; 67 L, T. 406 ; 41 W. R. 133 73, 75, 415 Ennis, Be, 3 Ch. (93) 238 ; 62 L. J. Ch. 991 ; 69 L. T. 738 .. .. 573, 575 Eno V. Dunn, 15 App. 252; 63 L. T. 6 ; 39 W. R. 161 330 Erlanger v. New &c. Co., 3 App. 1218 ; 48 L. J. Ch. 73 ; 39 L. T. 269 ; 27W. R. 65 526,528,529,532,533,534 Errington, ^e, 45 W. R. 573 ; 76 L. T. 616 57 Erskiue v. Adeane, 8 Ch. 756 ; 42 L. J. Ch. 835 ; 21 W. R. 802 ; 29 L. T. 234 . . 454 Esdaile V. Stephenson, 1 S. & S. 122 483,484 Espin -y. Pemberton, 3 D. & J. 547 .. .. .. .. .. .. 74 Evans, Ex parte, 13 Ch. Div. 252 ; 49 L. J. Bky. 7 ; 41 L. T. 565 ; 28 W. R. 127 426 xlvi TABLE OF CASES. PAGE Evans, 7?e, W. N. (76) 205 64 - Jie 26 Ch. Div. 58 ; 53 L. J. Ch. 709 ; 51 L. T. 175 ; 32 W. R. 736 .. 252 ' Ih, 34 Ch. Div. 597 ; 56 L. T. 768 ; 35 W. li. 586 210 Jie 1 Ch. (93) 252 ; 62 L. J. Ch. 413 ; 68 L. T. 271 ; 41 W. R. 230 80 ' Re, 76 L. T. 530 ; 66 L. J. Q. B. 499 ; 46 W. R. 8 578 V. Bagshaw, 5 Ch. 340; 39 L. J. Ch. 145 ; 18 W. R. 657 .. .. 357 V. Bear, 10 Ch. 76 ; 31 L. T. 625 ; 23 W. R. 67 61, 79 V. Benyon, 37 Ch. Div. 329 ; 58 L. T. 700 63 V. Coventry, 3 Dr. 82 635 V. , 5D. M. &G. 911 631,635 V. Davies, 2 Ch. (93) 216; 62 L. J. Ch. 661; 68 L. T. 244; 41 W. R.687 217 . V. Hoare, 1 Q. B. (92) 593; 61 L. J. Q. B. 470; 66 L. T. 345; 40 W. R. 442 453 v. Llewellin, 1 Cox 333 .. .. 517 V. Manchester &c. Ry. Co., 36 Ch. D. 626; 57 L. J. Ch. 153; 57 L. T. 194; 36 W. R. 328 285,311 Everett V. Rrytherfich, 12 Sim. 363 218 V. Reminoton, 3 Ch. (92) 148 ; 61 L. J. Ch. 574 ; 67 L. T. 80 .. 289 Everitt V. Automatic &c. Co., 3 Ch. (92) 506 ; 62 L. J. Ch. 241 ; 67 L. T. 349 405 V. E., 10 Eq. 405 ; 39 L. J. Ch. 777 ; 23 L. T. 136 ; 18 W. R. 1020 541, 545 Ewing v. E., 8 App. 822 627 V. Orr Ewing, 10 App. 499 ; 53 L. T. 826 63 Exchanf^e &c. Warehouses v. Association of Land Financiers, 34 Ch. D. 195"; 56L. J. Ch. 4; 55L. T. 611; 35 W. R. 120 440 Telecrraph Co. v. Central News, 2 Ch. (97) 48; 66 L. J. Ch. 672; 76 L. T. 591 ; 45 W. R. 595 .. 345 V. Gregory, 1 Q. B. (96) 147 ; 65 L. J. Q. B. 262 ; 74 L. T. 83 345 Eykyn, Re, 6 Ch. D. 115 ; 37 L. T. 261 .. 34 Eyre v. Hughes, 2 Ch. D. 148 ; 45 L. J. Ch. 395 ; 34 L. T. 211 ; 24 W. R. 597 386,403 V. Munro, 3 Jur. N. S. 584 ; 26 L. J. Ch. 757 ; 3 K. & J. 305 .. .. 1H2 i;. Shaftsburv (C. oQ, 2 P. W. 103 242 V. Wynn Mackenzie, 1 Ch. (94) 218 ; 63 L. J. Ch. 239 ; 69 L. T. 823; 42\VR. 220 206,387,403 Eyton, Re, 45 Ch. D. 458 ; 59 L. J. Ch. 733 ; 63 L. T. 336 ; 39 W. R. 135 .. 66 Fairburn v. Pearson, 2 M. & G. 144 632 Fairclough v. Marshall, 4 Ex. Div. 37 ; 48 L. J. Ex. 146 ; 39 L. T. 389 ; 27 W. R. 145 380 Fairer v. Park, 3 Ch. D. 309 ; 45 L. J. Ch. 760 ; 35 L. T. 27 14S Fairlie v. Boosey, 4 App. 711 ; 48 L. J. CL 697 ; 41 L. T. 73 ; 28 W. R. 4.. 349 Faithfull, iie, 6 Eq. 325 ; 18 L. T. 502 430 V. Ewen, 7 Ch. D. 495 ; 47 L. J. Ch. 457 ; 37 L. T. 805 ; 26 W. R. 270 428 V. Woodley, 43 Ch. D. 287 ; 59 L. J. Ch. 304 ; 61 L. T. 808 ; 38 W. R. 326 421 Falcke ^;. Gray, 4 Dr. 651 451 V. Scottish &c. Co., 34 Ch. Div. 234 ; 56 L. J. Ch. 707; 56 L. T. 220; 35 W. R. 143 431 Fane v. F., 20 Eq. 706 522,539,541 Farbenfabriken, Re, 1 Ch. (94) 645 ; 63 L. J. Ch. 257 ; 70 L. T. 186 ; 42 W. R. 488 333 TABLE OF CASES. xlvii PAGE Farmer v. Waterloo &c. Ey. Co., 1 Ch. (95) 527 ; 64 L. J. Ch. 338 ; 72 L. T. 225; 43 W. R. 363 299 Farnhani, Re, 2 Ch. (95) 799 ; 64 L. J. Ch. 717 ; 73 L. T. 231 .. ..23 &c. Co. v. Hunt, 68 L. T. 440 461,481 Farquharson v. Cave, 2 Coll. 356 .. .. .. .. .. .. .. 202 V. Floyer, 3 Ch. D. 109 ; 45 L. J. Ch. 750 ; 35 L. T. 355 183, 184 Farrand v. Yorkshire &c. Co., 40 Ch. D. 182 ; 68 L. J. Ch. 238 ; 60 L. T. 669 ; 37 W. R. 318 412 Farrar v. Cooper, 44 Ch. D. 323 ; 59 L. J. Ch. 506 ; 62 L. T. 528 ; 38 W. R. 410 592 V. Farrars, 40 Ch. D. 395; 58 L. J. Ch. 185; 60 L. T. 121; 37 W. R. 196 396 Farrer v. Lacy, 31 Ch. Div. 42 ; 55 L. J. Ch. 149 ; 53 L, T. 515 ; 34 W. R. 22 421 V. St. Catherine's College, 16 Eq. 19 ; 42 L. J. Ch. 809 ; 28 L. T. 800 ; 21 W. R. 643 537 Farrow v. Wilson, L. R. 4 C. P. 744 ; 38 L. J. C. P. 326 ; 18 W. R. 43 .. 547 Fawcett, Be, 42 Ch. Div. 150 ; 58 L. J. Ch. 763 ; 61 L. T. 105 466, 467, 468 Fearnside v. Flint, 22 Ch. D. 579 ; 52 L. J. Ch. 479 ; 48 L. T. 154 ; 31 W. R. 318 433 Fearon v. E. of Aylesford, 14 Q. B Div. 792 ; 54 L. J. Q. B. 33 ; 52 L. T. 954 ; 33 W. R. 331 451 Fell V. Official Trustee of Charity Lands, 2 Ch. (98) 44 ; 67 L. J. Ch. 385 ; 78L. T. 474 479 Fenner v. Wilson, 2 Ch. (93) 656 ; 62 L. J. Ch. 984 ; 68 L. T. 748 ; 42 W. R. 57 282, 328 Fenv?ick v. Potts, 8 D. M. & G. 506 382 Ferguson V. F., 10 Ch. 661 ; 44 L. J. Ch. 615 .. .. 78 Fernie v. Young, L. R. 1 H. L. 63 ; 12 Jur. N. S. 437 ; 35 L. J. Ch. 523 ; 14L. T. 637; 14 W. R. 714 327 Ferna v. Carr, 28 Ch. D. 409 ; 54 L. J. Ch. 478 ; 52 L. T. 348 ; 33 W. R. 363 546 Festing i;. Taylor, 10 W. R. 246 198 Few V. Perkins, L. R. 2 Ex. 92 ; 16 L. T. 62 ; 36 L. J. Ex. 54; 15 W. R. 713 277 Fewings, Ex parte, 25 Ch. Div. 338 ; 53 L. J. Ch. 545 ; 50 L. T. 109 ; 32W. R. 352 377,447 Field V. F., 1 Ch. (94) 425 ; 63 L. J. Ch. 233 ; 69 L. T. 826 ; 42 W. R. 346 52 V. Hopkins, 44 Ch. Div. 524 ; 62 L. T. 774 387, 446 Filby V, Hounsell, 2 Ch. (96) 737 ; 65 L. J. Ch. 852 ; 75 L. T. 270 ; 45 W. R. 232 454,455 Finch, Be, 23 Ch. Div. 267 ; 48 L. T. 129 ; 31 W. R. 526 206 V. Oake, 1 Ch. (96) 409 ; 65 L. J. Ch. 324 ; 73 L. T. 716 .. .. 287 Firth V. Midland Ry. Co., 20 Eq. 100; 44 L. J. Ch. 313; 32 L. T. 219; 23 W. R. 509 457 Fish, Be, 2 Ch. (93) 413 ; 62 L. J. Ch. 977 ; 69 L. T. 233 41 Fisher V. F., 2 Keen 610 188 V. Shirley, 43 Ch. D. 290 ; 59 L. J. Ch. 29 ; 61 L. T, 668 ; 38 W. R. 70 163 Fitch V. Weber, 6 Ha. 145 32 Fitz V. lies, 1 Ch. (93) 77; 62 L. J. Ch. 258; 68 L. T. 108 294 Fitzgerald V. Prinde, 2 Moll. 534 58 Fitzgerald's Trustee v. Mellersh, 1 Ch. (92) 385 ; 61 L. J. Ch. 231 ; 66 L. T. 178 ; 40W. R. 251 406 Fitzroy v. D. of Richmond, 27 B. 186 564 Flamaiik, Be, 40 Ch. D. 461 ; 58 L. J. Ch. 518 ; 60 L. T. 376 ; 37 W. R. 502 226 Flavell, Be, 25 Ch. Div. 89 ; 53 L. J. Ch. 185 ; 49 L. T. 690 ; 32 W. R. 102 16 Fleck, Be, 37 Ch. D. 677 ; 57 L. J. Ch. 943 ; 58 L. T. 624 ; 36 W. R. 663 .. 190 Fleetwood, Be, 15 Ch. D. 594 ; 49 L. J. Ch. 514 ; 29 W. R. 45 .. .. 5, 9 xlviii TABLE OF CASES. PAGE Fleetwood v. Hull, 23 Q. B. D. 35 ; 58 L. J. Q. B. 341 ; 60 L. T. 790 ; 37 W. E. 714 272 Flegg V. Prcntis, 2 Ch. (92) 428 ; 61 L. J. Cb. 705 ; 67 L. T. 107 .. .. 428 FleminEi; V. Armstrong, 34 B. 109 .. .. .. .. .. .. 357 Fletcher, lie, 38 Ch. D. 373 ; 57 L. J. Ch. 1032 ; 59 L. T. 313 ; 36 W. R. 841 141, 145, 147 ■ V. Ashburner, 1 Bro. C. C. 497 31, 84 ■ V. F., 4Ha. 67 16,19 V. Nokes, 1 Ch. (97) 271 ; 66 L. J. Ch. 177 ; 76 L. T. 107 ; 45 W. K. 471 271 V. Rogers, 27 W. R. 97 283 Flisrht V. Barton, 3 M. & K. 282 517 Flint V. Howard, 2 Ch. (93) 54 ; 62 L. J. Ch. 804 ; 68 L. T. 390 420, 442, 445, 447 Flower, Be, 27 Ch. D. 592 ; 53 L. J. Ch. 955 ; 51 L. T. 257 ; 32 W. R. 1011 48 V. L. & N. AV. Ry. Co., 2 Q B. (94) 65 ; 63 L. J. Q. B. 547 ; 70 L. T. 829 ; 42 W. R. 519 518 Fludyer, He, 2 Ch. (98) 562 ; 79 L. T. 298 ; W. N. (98) 81 (7) .. .. 180 Fluker y. Taylor, 3 Dr. 183 586 Fontaine's Case, 41 Ch. Div. 118 ; 61 L. T. 170 ; 37 W. R. 680 .. .. 284 Footner v. Sturgis, 5 D. G. & Sm. 736 429 Forbes v. "Jackson, 19 Ch. D. 615 ; 51 L. J. Ch. 690 ; 30 W. R. 652 .. 576 Ford, He, 10 Ch. Div. 365 ; 48 L. J. Ch. 327 ; 40 L. T. 41 ; 27 W. R. 371 .. 480 V. Chesterfield (E.), 16 B. 520 448 V. Foster, 7 Ch. 611 ; 41 L. J. Ch. 682 ; 27 L. T. 219 ; 20 W. R. 311, 818 336,338,339 ■ V. Olden, 3 Eq. 461 ; 36 L. J. Ch. 651 386 Fordham V. Wallis, 10 Ha. 217 173 Ford's Hotel Co. v. Bartlett, A. C. (96) 1 ; 65 L. J. Q. B. 166 ; 73 L. T. 665; 44 W. R. 241 589 Forest of Dean &c. Co., Be, 10 Cli. D. 450 ; 40 L. T. 287 ; 27 W. R. 594 .. 52 Forrer V. Nash, 35 B. 167 481 Forrest v. Prescott, 10 Eq. 545 ; 18 W. R. 1065 187 v. Shore, 32 AV. R. 356 445 Forster v. Patterson, 17 Ch. D. 132 ; 50 L. J. Ch. 603 ; 44 L. T. 465 ; 29 W. R. 463 432 Fort, Be, 2 Q. B (97) 495 ; 66 L. J. Q. B. 824 ; 77 L. T. 274 ; 46 W. R. 147 606 Fortescue V. Barnett, 3 M. & K. 36 14 Foster, Be, 6 Ch. D. 87 ; 46 L. J. Ch. 480 ; 36 L. T. 582 ; 25 W. R. 553 .. 26 j^g 55 L_ r^ 479 _ _ _ _^ ..64 ', Be, 45 Ch. D. 629 ;"63 L. T. 443*;" 39 W. R. 31 ' '.'. .. '.'. 56 , Be, 1 Ch. (97) 484 ; 66 L. J. Ch. 220 ; 76 L. T. 228 ; 45 AV. R. 333 205 V. Donald, IJ. & AV. 252 635 V. F., 1 Ch. D 588 ; 45 L. J. Ch. 301 ; 24 AV. R. 185 .. .. 99, 102 ■ v. Parker, 8 Ch. D. 147 443 V. Reeves, 2 Q. B. (92) 255 ; 61 L. J. Q. B. 763 ; 67 L. T. 537 ; 40 AV. R. 695 464 V. AVheeler, 38 Ch. Div. 130 ; 57 L. J. Ch. 871 ; 59 L. T. 15 ; 37 AV. R. 40 485 Fourth &c. Society v. AVilliams, 14 Ch. D. 140 ; 49 L. J. Ch. 245 ; 42 L. T. 615 ; 28 AV. R. .572 410,411 Foveaux, Be, 2 Ch. (95) 501 ; 64 L. J. Ch. 856 ; 73 L. T. 202 ; 43 AV. R. 661 8 Fowkes V. Pascoe, 10 Ch. 343 ; 44 L. J. Ch. 367 ; 32 L. T. 545 ; 23 AV. R. 538 33,34,131,142,206 Fowler, Be, 16 Ch. D. 723 ; 44 L. T. 99 ; 29 AV. R. 891 47 v. F, 4D. & J. 250 541 TABLE OF CASES. xlix Fowler v. Scott, 19 W. K. 972 ; 25 L. T. 23 367 Fox, Be, 1 Q. B. (94) 438 ; 63 L. J. Q. B. 191 ; 69 L. T. 657 ; 42 W. E. 351 191 y. Buckley, 3 Ch. Div. 508; 25 W. R. 170 66 V. F., 11 Eq. 142 ; 40 L. J. Ch. 182 ; 23 L. T. 584 ; 19 W. R. 151 138, 140 V. Hawks, 13 Ch. D. 822 ; 49 L. J. Ch. 579 ; 42 L. T. 622 ; 28 W. R. 656 15 V. Mackreth, 2 Cox 320 ; 2 Bro. C. C. 400 ., .. 516, 525, 529 V. Martin, 64 L. J. Ch. 473 412 V. Scard, 33 B. 327 263 Foxwell V. Van Griutten, 1 Ch. (i)7) 64 ; 66 L. J. Ch. 53 ; 75 L. T. 368 .. 297 V. , 78L. T. 231 30,39 France v. Clark, 22 Ch. D. 830 ; 52 L. J. Ch. 362 ; 48 L. T. 185 ; 31 W. R. 374 ; 26 Ch. Div. 257 ; 53 L. J. Ch. 585 ; 50 L. T. 1 ; 32 W. R. 466 .. .. 381 Francis v. Harrison, 43 Ch. D. 183 ; 59 L. J. Ch. 248 ; 61 L. T. 667 ; 38 VV. R. 329 438 Franks v. Bollans, 3 Ch. 717 ; 37 L. J. Ch. 664; 18 L, T. 623; 16 W.R. 1158 107 Fraser, Be, 2 Q. B. (92) 633 ; 67 L. T. 401 611 V. Kershaw, 3 K. & J. 496 632 V. Murdock, 6 App. 855 ; 45 L. T. 417 ; 30 W. R. 162 211 FrearsoQ v. Loe, 9 Ch. D. 48 ; 27 W. R. 183 .. .. .. 322, 324, 325, 327 Freeland V. Pearson, 7 Eq. 246 479 V. Stansfeld, 2 Sm. & G. 479 632 Freeman, Be, 37 Ch. D. 148 ; 57 L. J. Ch. 160 ; 57 L. T. 798 ; 36 W. R. 71 40 -y. Fairlie, 3 Mer. 24 52 V. Lomas, 9 Ha. 109 592 Freer, Be, 22 Ch. D. 622 ; 52 L. J. Ch. 301 ; 31 W. R. 426 .. .. 106, 193 V. Hesse, 4 D. M. & G. 495 73 Freke V. Carbery, 16 Eq. 461 58 Freman, Be, 1 (jh. (98) 28 ; 67 L. J. Ch. 14 ; 77 L. T. 460 .. .. 47, 301 Freme, Be, 2 Ch. (95) 256 ; 64 L. J. Ch. 534 ; 72 L. T. 486 ; 43 W. R. 473 ; 2 Ch. (95) 778 ; 64 L. J. Ch. 862 ; 73 L. T. 366 491 Frend v. Buckley, L. R. 5 Q. B. 213 ; 39 L. J. Q. B. 90 ; 23 L. T. 170 ; 18 W.R. 680 478 FreshHeld, Be, 11 Ch. D. 198 ; 40 L. T. 57 ; 27 W. R. 375 415 Frewen v. F., 10 Ch. 610 ; 33 L. T. 43 ; 23 W. R. 864 .. .. 88, 92 V. Law &c. Society, 2 Ch. (96) 511 ; 65 L. J. Ch. 787 ; 75 L. T. 17 ; 44 W. R. 682 188 Friend, i?e, 78 L. T. 222 ; W. N. (98) 26 Ib6 V. Young, 2 Ch. (97) 421 ; 66 L. J. Ch. 737 ; 77 L. T. 50 ; 46 W. R. 139 .. .. 80,432,532,597,608,612 Frisby, Be, 43 Ch. Div. 106 ; 59 L. J. Ch. 94 ; 61 L. T. 632 ; 38 W. R. 65 433, 434 Frith, Be, 3 Ch. D. 618 ; 45 L. J. Ch. 780 ; 35 L. T. 146 ; 24 W. R. 1061 .. 361 Fry V. F., 27 B. 144 53 V. Lane, 40 Ch. D. 312 ; 58 L. J. Ch. 113 ; 60 L. T. 12 ; 37 W. R. 135 517 519 — V. Tapson, 28 Ch. D. 268 ; 54 L. J. Ch. 224 ; 51 L. T. 326 ; 33 W. R. 113 ' 45, 46, 48, 51, 64 Fuller V. Blackpool &c. Co., 2 Q. B. (95) 429 ; 64 L. J. Q. B. 699 ; 73 L. T. 242 349 Fullwood V. F., 9 Ch. D. 176 ; 47 L. J. Ch. 459 ; 38 L. T. 380 ; 26 W. R. 435 . . 282 Furber, Ex parte, 17 Ch. D. 191 ; 44 L. T. 217 ; 29 W. R. 524 .. ., 377 y. F., 30B. 523 440 Fytche v. F., 7 Eq. 494; 19 L. T. 343 125 1 TABLE OF CASES. PAGE G., i?e, 1 Ch. (92) 292 ; 61 L. J. Ch. 490 ; 6G L. T. 33(5 .. 245, 246, 247 — V. L., 3 Ch. (91) 126 ; 60 L. J. Ch. 705 ; 64 L. T. 732 ; 43 W. R. 10 .. 256 Gadd, lie, 23 Ch. Div. 134 ; 52 L. J. Ch. 396 ; 48 L. T. 395 ; 31 W. R. 417 23, 24 Gajje, lie, 1 Ch. (9«) 498 ; 67 L. J. Ch. 200 ; 78 L. T. 347 ; 46 W. R. 569 .. 57 Gaitskell, lie, 40 Ch. Div. 416 ; 58 L. J. Ch. 262 367 Gale, Be, 22 Ch. D. 820 ; 48 L. T. 101 ; 31 W. R. 538 212 V. C, 6 Ch. D. 144 ; 46 L. J. Ch. 809 ; 36 L. T. 690; 25 W. R. 772 .. 18 Galland, lie, 31 Ch. D. 296 ; 55 L. J. Ch. 478 ; 53 L. T. 921 ; 34 W. R. 158 430 , y^e, W. N. (86) 96 417 Gallaid, lie, 1 Q. B. (96) 68; 65 L. J. Q. B. 199; 73 L. T. 457 ; 44 W. R. 121 40 , lie, 2 Q. B. (97) 8; 66 L. J. Q. B. 484; 76 L. T. 327; 45 W. R. 556 525 Game, lie, 1 Ch. (97) 881 ; 66 L. J. Ch. 505 ; 76 L. T. 450; 45 W. R. 472 .. 56 Games, Ex parte, 12 Ch. D. 314 ; 40 L. T. 789 , 27 W. R. 744 .. -.. 20 Gaudy V. G., 30 Ch. Div. 57 ; 54 L. J. Ch. 1154 ; 58 L. T. 306 ; 33 W. R. 803 16 Garden &c. Co. v. McLister, 1 App. 39 ; 33 L. T. 408 ; 24 W. R. 744 278, 533 Gardner, lie, 67 L. T. 552 196 V. Parker, 3 Madd. 184 202 Garfitt V. Allen, 37 Ch. D. 48 ; 57 L. J. Ch. 420 ; 57 L. T. 848 ; 36 W. R. 413 194, 393 Garland, ^ccjotjri'e, 10 Ves. 110 211 Garnett, i?e, 31 Ch. Div. 1 50,206,533 , He, 33 Ch. Div. 300; 55 L. J. Ch. 773 ; 55 L. T. 562 .. ..50 Garnett Orme, lie, 25 Ch. D. 595 ; 53 L. J. Ch. 196 ; 49 L. T. 655 ; 32 W. R. 313 481 Garnham V. Skipper, 29 Ch. Div. 566 ; 52 L. T. 239 440 Garrett v. JJ. of Middlesex, 12 Q. B. D. 620 ; 53 L. J. M. C. 81 ; 32 W. R. 646 461 Garth ■». Townsend, 7 Eq. 220 554 Garthshore v. Chalie, 10 Yes. 1 158, 159 Gas Light &c. Co. v. 'Jowse, S5 Ch. D. 519 ; 56 L. J. Ch. 889 ; 56 L. T. 602 462, 486, 558, 559 Gaskell V. G., 6 Sim. 643 .. 363 Gaskin v. Balls, 13 Ch. Div. 324 ; 28 W. R. 552 .. .. 288, 290, 317 Gasquoine, He, 1 Ch. (94) 470 ; 63 L. J. Ch. 377 ; 70 L. T. 196 .. 48, 60, 214 Gaunt V. Fynney, 8 Ch. 8 ; 42 L. J. Ch. 122 ; 27 L. T. 569 ; 21 W. R. 129 310 Geek, i?e, 69 L. T. 819 8 Gedye V. Matson, 25 B. 310 437 General &c. Association v. Bouffler, 41 L. T. 719 .. .. .. .. 481 Co. V. Glegg, 22 Ch. D. 549 ; 52 L. J. Ch. 297 ; 48 L. T. 182 ; 31W. R. 421.. .. 262,381,385,386 Genese, lie, 16 Q. B. D. 700 ; 55 L. J. Q. B. 118 ; 34 W. R. 79 .. .. 229 Gent, lie, 40 Ch. D. 190 ; 58 L. J. Ch. 162 ; 60 L. T. 355 ; 37 W. R. 151 77, 78, 80 George, Pe, 5 Ch. Div. 837 : 47 L. J. Ch. 118 ; 37 L. T. 204 ; 26 W. R. 65 196, 197 Gerard, lie, 3 Ch. (94) 295 ; 63 L. J. Ch. 695 ; 71 L. T. 272 ; 42 W. R. 678 475 German v. Chapman, 7 Ch. Div. 271; 47 L. J. Ch. 250; 37 L. T. 685; 26 W. R. 149 290 Gerrard v. Clowes, 2 Q. B. (92) 11 ; 61 L. J. Q. B. 487 ; 67 L. T. 204 .. 258 Gething v. Keighley, 9 Ch. D. 547 ; 27 W. R. 283 588 Giacometti v. Prodgers, 21 W. R. 282 ;- 28 L. T. 294 236 Gibbs V. Cruikshank, L. R. 8 C. P. 454; 42 L. J. C. P. 273 ; 28 L. T. 735 ; 21 W. R.734 393 TABLE OF CASES. li PAGE Gibbs V. Guild, 9 Q. B. Div. 59 ; 51 L. J. Q. B. 313 ; 46 L. T. 248 ; 30 W. K. 591 531,532 ■ v. Haydon, 30 W. R. 726 ; 47 L. T. 184 361 Gibsoa v. Jeyes, 6 Ves. 266 .. ,. .. .. .. .. .. 525 Giffard v. Williams, 5 Ch. 546 ; 39 L. J. Ch. 735 ; 18 W. E. 776 .. .. 361 Gilbert, Re, 1 Q. B. (98) 282 ; 67 L. J. Q. B. 229 ; 77 L. T. 775 ; 46 W. R. 351 .. 180 Gilberison V. G., 34 B. 354 185 Gilbey, Ex parte, 8 Ch. Div. 248 ; 47 L. J. Bky. 49 ; 38 L. T. 728 ; 26 W. E. 768 581 Gilchrist, Ex parte, 17 Q. B. Div. 521 ; 55 L. J. Q. B. 578 ; 55 L. T. 538 ; 34 ,W. E. 709 233 Giles, Re, 43 Ch. Div. 391 ; 59 L. J. Ch. 226 ; 62 L. T. 375 ; 38 W. R. 273 .. 439 ■ , Re, 1 Ch. (96) 956 ; 65 L. J. Ch. 419 ; 74 L. T. 21 ; 44 W. R. 283 .. 180 Gillespie, Re, 14 Q. B. D. 963 ; 54 L. J. Q. B. 342 ; 52 L. T. 692 ; 33 W. E. 707 594 — v. Alexander, 3 Euss. 130 213 Gilliat V. G., 9 Eq. 60 ; 39 L. J. Ch. 142 ; 21 L. T. 522 ; 18 W. E. 203 .. 510 Gillies V. Longlands, 4 D. G. & Sm. 372 107 Ginger, Re, 2 Q. B. (97) 461 ; 66 L. J. Q. B. 777 ; 76 L. T. 808 ; 46 W. R. 144 39 Gisborne v. G., 2 App. 300 ; 46 L. J. Ch. 556 ; 36 L. T. 564 ; 25 W. R. 516 23 24 251 Glasbrook v. Richardson, 23 W. R. 51 '.. ' 464 Glassin^ton v. Thwaites, 2 Russ. 458 . . . . . . . . . . . . 440 Gleadow v. Leetham, 22 Ch. D. 269 ; 52 L. J. Ch. 102 ; 48 L. T. 264 ; 31 W. R. 269 198 Glendinning, Ex parte. Buck 517 .. .. .. .. .. .. 584 Glenorchy w. Bosville, Cas. Temp. Talbot 3 29 GIoaiT, Re, 23'Ch. D. 320 ; 52 L. J. Ch. 654 ; 48 L. T. 629 ; 31 W. R. 601 475, 482 Godden, Re, 1 Ch. (93) 292 ; 62 L. J. Ch. 469 ; 68 L. T. 116 ; 41 W. R, 282 55 Godfrey, Re, 23 Ch. D. 483 ; 52 L. J. Ch. 820 ; 48 L. T. 853 ; 32 W. R. 23 44 V. George, 1 Q. B. (96) 48 ; 65 L. J. Q. B. 249 ; 73 L. T. 599 ; 44 W. R. 245 77 V. Littell, 1 Russ. & My. 59 ; on app., 2 ib. 630 373 • V. Poole, 13 App. 497 ; 57 L. J. P. C. 78 ; 58 L. T. 685 19, 20, 21, 26 Godwin v. Francis, L. R. 5 C. P. 295 ; 39 L. J. C. P. 121 ; 22 L. T. 338 .. 455 Goetz, Re, 1 Q. B. (98) 787 ; 67 L. J. Q. B. 577 ; 78 L. T. 399 ; 46 W. R. 469 384 Goldsmid, Re, 18 Q. B. Div. 295 ; 56 L. J. Q. B. 195 ; 35 W. R. 148 .. 21 V. G., 1 Swans. 211 155,159 V. Tunhridge Wells Commrs., 1 Ch. 349 ; 35 L. J. Ch. 382 ; 12 Jur. N. S. 308 ; 14 L. T. 154 ; 14 W. R. 562 311 Goldsmith, Re, 10 Ch. 41 ; 44 L. J. Bky. 1 ; 31 L. T. 366 ; 23 W. R. 49 .. 411 Goldsworthy, Re, 2 Q. B. D. 75; 46 L. J. Q. B. 187 240, 243 Good, Ex parte, 5 Ch. Div. 46 ; 46 L. J. Bky. 65 ; 36 L. T. 338 ; 25 W. R. 422 611 Goodenough, Re, 2 Ch. (95) 537 ; 73 L. T. 152 ; 44 W. R. 44 .. .. 55 Goodfellow V. Prince, 35 Ch. Div. 9 ; 56 L. J. Ch. 545; 56 L. T. 617 ; 35 W. R. 488 ■ .. 332 Goodier V. Edmunds, 3 Ch. (93) 455 ; 62 L. J. Ch. 649 .. .. 54,92,104 V. Johnson, 18 Ch. Div. 441 ; 51 L. J. Ch. 369 ; 45 L. T. 515; 30 W\ R. 449 92 Goodman v. Saltash (M. ot), 7 App. 633 ; 52 L. J. Q. B. 193 ; 48 L. T. 239 ; 31 W. R. 293 7,8 V. Whitcomb, IJ. & W. 589 622, 630, 631 Goodrich w. Marsh, W. N. (78) 186 367 d 2 Hi TABLE OF CASES. PAGE Goold V. Birmingham &c. Bk., 58 L. T. 560 474 Gordon, Be, 10 Ch. 192 ; 44 L. J. Ch. 208 ; 32 L. T. 348 ; 23 W. K. 760 .. 541 , Be, 6 Ch. D. 531 ; 46 L. J. Ch. 794 37, 88, 96, 104 V. Anderson, 4 Jur. N. S. 1097 151 v. G., 3 Swan. 400 390,541,543 V. James, 30 Ch. Div. 249 ; 53 L. T. 641 ; 34 W. R. 217 .. 410, 489 Gori Savini, i?e, W. N. (70) 60 248 Gosling V. Gaskell, A. C. (97) 575 ; 66 L. J. Q. B. 848 ; 77 L. T. 314 .. 633 V. Woolf, 1 Q. B. (93) 39 ; 68 L. T. 89 ; 41 W. R. 106 .. .. 476 Gott V. Naime, 8 Ch. D. 278 ; 35 L. T. 209 '. 105 Gough, i?e, 70 L. T. 725 431 GouM, Ex partf, 13 Q.B.I). 45A; 51 L.T.Sm 274 V. Tancred, 2 Atk. 534 404 Government Stock &c. ( 'o. v. Manila Ry. Co., A. C. (97) 81 ; 66 L. J. Ch. 102 ; 75 L. T. 553 ; 45 W. R. 353 481 Gow V. Forster, 26 Ch. D. 672 ; 51 L. T. 394; 32 W. R. 1019 .. 55, 613, 627 Gowan, ii;e, 17 Ch. D. 778 ; 50 L. J. Ch. 248 29 Grace V. Baynton, 25 W. R. 506 499 V. Newman, 19 Eq. 623 ; 44 L. J. Ch. 298 ; 23 W. R. 517 .. .. 343 Graham, Be, 10 Eq. 530; 39 L. J. Ch. 724 ; 22 L. T. 904 ; 18 W. R. 988 .. 254 — V. Drummond, 1 Ch. (96) 968 ; 65 L. J. Ch. 472 ; 74 L. T. 417 ; 44 W. R. 596 212 v. Londonderry, 3 Atk. 393 208 V. O'Connor, 73 L. T. 712 25 Grand &c. Co. v. Hampton U. D. Council, 2 Ch. (98) 331 285 Granc^e v. White, 18 Ch. D. 612 ; 50 L. J. Ch. 620 ; 45 L. T. 128 ; 29 W. R. 713 367 Gray, Be, 36 Ch. D. 205 ; 56 L. J. Ch. 975 ; 57 L. T. 132 ; 35 W. R. 795 .. 192 , Be, 2 Ch. (96) 802 ; 65 L. J. Ch. 858 ; 75 L. T. 407 18 v. Bateman, 21 W. R. 137 .• .. 80 V. Bell, 30 W. R. 606 ; 46 L. T. 521 443 V. Fowler, L. R. 8 Ex. 249 ; 42 L. J. Ex. 161 ; 29 L. T. 297 ; 21 W. R. 916 461 V. Seckham, 7 Cli. 680; 42 L. J. Ch. 127 ; 27 L. T. 290 ; 20 W. R. 920 571 V. Signers, 15 Ch. D. 74 ; 49 L. J. Ch. 819 ; 29 W. R. 13 .. .. 56 V. Smith, 43 Ch. Div. 208 ; 59 L. J. Ch. 145 ; 62 L. T. 335 ; 38 W. R. 310 454, 455, 603, 615, 626 V. Stone, 69 L. T. 282 416,419 Grayburn v. Clarkson, 3 Ch. 605 ; 37 L. J. Ch. 550 ; 18 L. T. 494 ; 16 W. R. 716 216, 217 Great Berlin &c. Co., Be, 26 Ch. Div. 616 ; 54 L. J. Ch. 68 ; 51 L. T. 445 .. 10 Northern Ry. Co., Be, 25 Ch. D. 788; 53 L. J. Ch. 445; 50 L. T. 87; 32\V. R. 519 469,491 V. Coal &c. Society, 1 Ch. (96) 187 ; 65 L. J. Ch. 214 ; 73 L. T. 443 ; 44 W. R. 252 381 - Western Ry. Co. v. Cefn &c. Co., 2 Ch. (94) 157 ; 63 L. J. Ch. 500 ; 70 L. T. 279 ; 42 W. R. 493 300 V. Swindon &c. Ry. Co., 9 App. 787 ; 53 L. J. Ch. 1075; 51 L. T. 798; 32 W. K. 957 299 Greaves, Be, 23 Ch. D. 313 ; 52 L. J. Ch. 753 ; 48 L. T. 414 ; 31 W. R. 807 85 u. Wilson, 25. B. 290 ■ .. 482,483 Green, Be, 40 Ch. D. 610; 58 L. J. Ch. 157 ; 60 L. T. 225 ; 37 W. R. 300 .. 57, 179, 186, 192 V. Biggs, 52 L. T. 680 423 w. G., 19 Vos. 665 .. .. 117 V. Marsh, 2 Q. B. (92) 330; 61 L. J. Q. B. 442; 66 L. T. 480; 40 W. R. 449 394, 400 TABLE OF CASES. Hii PAGE Greeu v. Paterson, 32 Ch. Div. 95; 56 L. J. Ch. 181; 54 L. T. 738; 34 W R 724 11,1410 V. Sevin, 13 Ch. D. 589 ; 41 L. T. 724 i^^'of ^' Ht V. Wynn, 4 Cb. 204 ; 38 L. J. Ch. 220 ; 20 L. T. 131 ; 17 W. R. 385 583 Greene v. Foster, 22 Ch. D. 566 ; 52 L. J. Ch. 470 ; 48 L. T. 411 ; 31 W. R. 285 409 440, 449 GreenhiU v. North &c. Co., 3 Ch. (93) 474 ; 62 L. J. Ch. 918 ; 69 L. T. 526 ; 42 W R 91 1^'' ^'^°' ^^ Grecnough v. Littler, 15 Ch. D. 93 ; 42 L. T. 144 ; 28 W. R. 318 .. .. 389 Greenwell v. Low Beechburu Coal Co., 2 Q. B (97) 165 ; 66 L. J. Q. B. 643 ; 7ft T T '"'^Q ■ •• •• •■ 'tiUO Greenwood, Ee, 2 Ch. (92)^295 ; 61 L. J.'ch. 558 ; 67 L. T. 76 ; 40 W. R. 681 200 v. G., 1 Bro. C. C. 31 n ^ ^ •• ^ - 149 V. Hornsey, 33 Ch. D. 471 ; 55 L. J. Ch. 917 ; 55 L. T. 135 ; 35 W. R. 163 ^" V. Percy, 26 B. 572 ^^« V. Sutcliflfe, 1 Ch. (92) 1 ; 61 L. J. Ch. 59 ; 65 L. T. 797 ; 40W.R.214 ' .. \: ^ •• ,,f6'^4S y. Turner, 2 Ch. (91) 144 ; 60 L. J. Ch. 351 ; 64 L. T. 261 ; 39W. R. 315 ^ •• •• *y^ Greer v. Young, 24 Ch. Div. 545; 52 L. J. Ch. 915; 49 L. T. 224; 0-1 TXT T) QQA ., ,, ., 428, 4JJ Gregson, Re, 36 Ch.'b. 223*; 57 L.' J. Ch* 221 ; *57 L. T. 250 ; 35 W. R. 803 593 Gretton V. n award, 1 Swans. 409 ^^^ Grier V. G., L. R. 5 H. L. 688 „<..;;„ 000 ouo Griffith V. Blake, 27 Ch. Div. 474 ; 53 L. J. Ch. 965 ; 51 L. T. 274 ; 32 W. R. 833 282 V. Hughes, 3 Ch. (92) 105 ; 62 L. J. Ch. 135 ; 66 L. T. 760 ; 40 W. R. 524^^ ^^ V. Pound, 45 Ch. D. 553 ; 59 L. J. Ch. 522 .. .. 391, 393, 438 V. Tower Publishing Co., 1 Ch (97) 21 ; 66 L. J. Ch. 12 ; 75 L. T. 330;45W. R. 73 ^ •• ■' ^^^ Griffith-Boscawen v. Scott, 26 Ch. D. 358 ; 53 L. J. Ch. 571 ; 50 L. T. 386 ; 32W. R. 580 ,„, iXo'JJn Griffith* V. Jones, 15 Eq. 279 ; 42 L. J. Ch. 468 ; 21 W. R. 470 471, 4(3, 510 Grimston V. Cuningham, 1 Q. B. (94) 125 f^ Grimwo. d v. Bartels, 46 L. J. Ch. 788 ; 25 W. R. J43 .. .. •• 10^ V. Moss, L. R. 7 C. P. 360; 41 L. J. C. P. 239 ; 27 L. T. 268 ; 20 W. R. 972 fjl Grissellt;. Swinhoe, L. R.TEq. 291; 17 W. R. 438 .. .. ^ •• ^ •• ^^^ Groom v. Cheesewright, 1 Ch. (95) 730; 64 L. J. Ch. 406; 72 L. 1. 555; aQ W W 4-7^ •• •• •• •• 4:i^y Grosvenor'&J. Co. "v. Hamilton, 2 Q. B.' (94) 836 ; 63 L. J. Q. B. 661 ; 71 L. T. 362 ; 42 W. R. 626 ^^,^ Gude v. Mumford, 2 Y. & C. Ex. 445 ,0 W/ t. -r^o \\k Guest V. Smyths, 5 Ch. 551 ; 39 L. J. Ch. 536 ; 22 L. T. 563 ; 18 W. R. 742 510 Guild V. Conrad, 2 Q. B. (94) 885 ; 63 L. J. Q. B. 721 ; 71 L. T. 140 ; 42 W. R. 642 ^i^i Gunn, Re, 9 P. D. 242 ; 53 L. J. P. 107 ; 33 W. R. 169 'f Gurney, Be, 1 Ch. (93) 590 ; 68 L. T. 289 ; 41 W. R. 443 .. " ,„ - ,°f -, i?e, 2 Ch. (96) 863; 66 L. J. Ch. 32; 75 L. T. 332; 45 W. R. 92 171 ;. Churchill, 35 Ch. Div. 489; 56 L. J. Ch. 670; 57 L. T. 510; 35 W. R. 706 .. *"^ Guy v.'^h'urchill, 35 Ch.'Div. 489; 56 L. J. Ch. 670; 57 L. T. 510; 1,. .. .. •• •• •• •• " *' -, 40 Ch. D. 481 ; 58 L. J. Ch. 345 ; 60 L. T. 473 ; 37W. R. 504 55^ ■ V. Sharp, 1 M. & K. 589 ^^^ liv TABLE OF CASES. PAGE Haden, i?e, 3 Ch. (98) 220 ; G7 L. J. Ch. 428 163 Hagaenmacher, i?e, 2 Ch. (98) 280 324 Haigh, Be, 1 Q. B. (96) 649 ; 65 L. J. Q. B. 511 ; 74 L. T. 655 ; 44 W. E. 618 591 V. Kaye, 7 Ch. 469 ; 41 L. J. Ch. 567 ; 26 L. T. 675 ; 20 W. E. 597 5, 11 Haley V. Banister, 23 B. 336 154 Halifax &c. Bk. v. Gledhill, 1 Ch. (91) 31 ; 60 L. J. Ch. 181 ; 63 L. T. 623 ; 39 W. E. 104 21 Co., i?e, 79 L. T. 183 ; W. N. (98) 62 479 Hall, i?e, 31 L. E. Ir. 416 99 v. Hale, 51 L. T. 226 .. .. " 499 — -v. H., 3M. &G. 79 • 630,634 V. — , 8 Ch. 430 : 42 L. J. Ch. 444 ; 28 L. T. 383 ; 21 W. E. 373 .. 542 V. Heward, 32 Ch. Div. 430; 55 L. J. Ch, 604; 54 L. T. 810; 34W. E. 571 390,400,447 Hall-Dare v. H., 31 Ch. Diy. 251 ; 55 L. J. Ch. 154 ; 54 L. T. 120 ; 34 W. E. 82 557 Hall-Dare's Contract, Be, 21 Ch. Div. 41 ; 51 L. J. Ch. 671 ; 46 L. T. 755 ; 30 W. E. 556 470 Hallett, Be, 13 Ch. D. 696 ; 49 L. J. Ch. 415 ; 42 L. T. 421 ; 28 W. E. 732 70, 71 , Be, 24 Ch. D. 624 ; 52 L. J. Ch. 804 ; 48 L. T. 894 ; 32 W. E. 112 558 , Be, 2 Q. B. (94) 237; 63 L. J. Q. B. 573 ; 70 L. T. 361 ; 42 W. E. - 305 70, 73 V. Furze, 31 Ch. D. 312 ; 55 L. J. Ch. 226 ; 54 L. T. 12 ; 34 W. R. 225 442 V. H., 13 Ch. D. 232 ; 49 L. J. Ch. 61 ; 41 L. T. 723 ; 28 W. E. 321 593 HaUows V. Lloyd, 39 Ch. D. 686 ; 59 L. T. 603 ; 58 L. J. Ch. 105 ; 37W. E. 12 51,76 Hambro v. H., 2 Ch. (94) 564 ; 63 L. J. Ch. 627 ; 70 L. T. 684 ; 43 W. E. 92 201 Hamer v. Giles, 11 Ch. D. 942 ; 48 L. J. Ch. 508 ; 41 L. T. 270 ; 27 W. E. 834 636, 637 V. Sharp, 19 Eq. 108 ; 44 L. J. Ch. 53 ; 31 L. T. 643 ; 23 W. E. 158 456 Hamilton, i?e, 31 Ch. Div. 294 427 , -ffe, W. N. (92) 74 ,. .. .. .. .. .. .. 192 ' Be',2 Ch. (95) 370 ; 64 L. J. Ch. 799 *;*72 L.'t. 748 • 43 W. E. 577 9 , Be, 2 Ch. (96) 617 ; 65 L. J. Ch. 815 ; 75 L. T. 113 .. -,. 6 V. H., 1 Ch. (92) 396 ; 61 L. J. Ch. 220; 66 L. T. 112; 40 W. E. 312 ■ 109,110 ■ V. Hector, 6 Ch. 701 ; 40 L. J. Ch. 692 ; 19 W. E. 990 ; 13 Eq. 511 240 V. Vaughan Sherrin &c. Co., 3 Ch. (94) 589 ; 63 L. J. Ch. 795 71 L. T. 325 ; 43 W. E. 126 .. 518 Hamlet, Be, 38 Ch. D. 190; affd. 39 Ch. Div. 426 ; 58 L. J. Ch, 242 ; 59 L. T. 745; 37 W. E. 245 141 Hammond v. Schofield, 1 Q. B. (91) 453 ; 60 L. J. Q. B. 539 607 Hampshire Land Co., Be, 2 Ch, (96) 743; 65 L. J. Ch. 860; 75 L. T. 181; 45W. E. 136 76 Hampshire v. Wickens, 7 Ch. D, 26 W. E. 491 Hance v. Harding, 20 Q. B. Div 36 W. E. 629 Hancock v. Smith, 41 Ch. D. 456 ; 555 ; 47 L. J. Ch. 243 ; 38 L. T. 408 ; 477 732; .57 L. J. Q. B. 403; 59 L. T. 659; 23,27 58 L. J. Ch. 725 ; 61 L. T. 341 .. ..71 Hanfstaengl v. American Tobacco Co., 1 Q. B. (95) 347 ; 64 L. J, Q. B, 277 ; 71L. T. 864; 43 W. E. 261 351 v.. Empire Palace, 3 Ch. (94) 109 ; 63 L. J. Ch. 681 ; 70 L. T. 854 ; 42 W. E. 681 346,350 V. , A. C. (95) 20 ; 64 L. J, Ch, 81 ; 72 L. T. 1 .. 350 Hanley v. Pearson, 13 Ch. D. 545 ; 41 L. T. 673 541, 643 TABLE OF OASES. Iv Hansard v. Hardy, 18 Ves. 455 ,. Harbin v. Masterraan, 12 Eq. 559 ; 40 L. J. Ch. 760 .. -, A. C. (95) 186 ; 64 L. J. Ch. 369 ; 72 L. 43 W. K. 449 V. ^^ ^, 444 ^^ , , 58 T. 431; 58 T. 591; 200 631 9 189 T. 109; 472 T. 465; 469 261 -, 1 Ch. (96) 351; 6J L. J. Ch. 195; 73 L. 44 W. R. 421 Harding V. Glover, 18 Ves. 281 V. Glyn, 1 Atk. 469 V. H., 13 Eq, 493 ; 41 L. J. Ch. 523 ; 26 L. T. 656 .. V. Met. Ry. Co., 7 Ch. 154; 41 L; J. Ch. 371; 26 L. 20 W. R. 321 Hardman v. Child, 28 Ch. D. -712; 54 L. J. Ch. 695; 52 L. 33 W. R. 544 Hardy v. Martin, 1 Cox 26 Hare v. Elms, 1 Q. B. (93) 604 ; 62 L. J. Q. B. 187 ; 68 L. T. 223 ; 41 AV. R. 297 266 Harsreaves, Re, 32 Ch. Div. 454 ; 56 L. J. Ch. 199 ; 55 L. T. 239 ; 34 W. R. ^708 467,486,490,494 v. Rothwell, 1 Keen 154 .. 74 Harkness, Be, 2 Ch. (96) 358 ; 65 L. J. Ch. 726 ; 74 L. T. 652 ; 44 W. R. 683 231 Harle v. Jarman, 2 Ch. (95) 419 ; 64 L. J. Ch. 779 ; 73 L. T. 20 ; 43 AV. R. 618 115, 220, 230 Harley V. H., 10 Ha. 325 220 Harlock v. Ashberry, 19 Ch. Div. 539 ; 51 L. J. Ch. 394 ; 46 L. T. 356 ; 30 W. R. 327 435 Harman, Re, 24 Ch. D. 720 ; 52 L. J. Ch. 809 ; 49 L. T. 130 ; 31 W. R. 857 76, 479 ; Re, 3 Ch. (94) 607 ; 63 L. J. Ch. 822 ; 71 L. T. 401 .. .. 85, 101 Harnett v. Baker, 20 Eq. 50 ; 45 L. J. Ch. 64 ; 32 L. T. 382 ; 23 W. R. 559 496 Harpham v. Shacklock, 19 Ch. Div. 207 ; 45 L. T. 569 ; 33 W. R. 49 413, 419 Harris, i?e, W.N. (94)19; 38 S.J. 235 475 V. De Pinna, 33 Ch. Div. 238 ; 54 L. T. 38 313, 319 v. H., 29 B. 110 214 V. Pepperell, 5 Eq. 1 ; 17 L. T. 191 ; 16 AV. R. 68 .. .. 538, 544 V. Poyner, 1 Drew. 174 .. .. .. .. .. .. .. 54 V. Rothwell, 35 Ch. Div. 416 ; 56 L. J. Ch. 459 ; 56 L. T. 552 ; 35 AV. R. 581 322 V. Sleep, 2 Ch. (97) 80 ; 66 L. J. Ch. 511 ; 76 L. T. 458 ; 45 AV. R. 536 624 V. Tubb, 42 Ch. D. 79 ; 58 L. J. Ch. 434 ; 60 L. T. 699 ; 38 AV. R. 75 .. 27 V. Watkins, Kay 438 174 Harrison, Re, 28 Ch. Div. 220 ; 54 L. J. Ch. 617 ; 52 L. T. 204 ; 33 AV. R. 240 303,304,305 , Re, 32 Ch. D. 395 ; 55 L. J. Ch. 687 ; 55 L. T. 150 ; 34 AV. R. 736 .. 181 , Re, 34 Ch. D. 214 ; 56 L. J. Ch. 341 ; 56 L. T. 159 ; 35 AV. R. 196 88 --, Re, 43 Ch. D. 55 ; 59 L. J. Ch. 169 ; 61 L. T. 762 ; 38 AV. R. 265 183. 201 , Re, 2 Ch. (91) 349 ; 60 L. J. Ch. 287 ; 64 L. T. 442 .. ..61 , i?e, AV. N. (92) 148 81 • V. Gardner, 2 Madd. 198 .. ..512 V. Guest, 8 H. L. C. 481 .. .. 517 V. Rutland (D. of), 1 Q. B. (93) 142 ; 62 L. J. Q. B. 117 ; 68 L. T. 35 ; 41 AV. R. 322 296,297 V. Southwark &c. Co., 2 Ch. (91) 409 ; 60 L. J. Ch. 630 ; 64 L. T. 864 311 Harriss v. Fawcett, 8 Ch. 866 ; 42 L. J. Ch. 502 ; 29 L. T. 84 .. 571, 572 Harrop v. M. of Ossett, 1 Ch. 98 (525) ; 67 L. J. Ch. 347 ; 78 L. T. 387 ; 46 AV. R. 391 .. .. 311,341 Ivi TABLE OF CASES. PAGE Hart V. CoUey, 44 Ch. D. 193; 59 L. J. Ch. 355 ; 62 L. T. 623; 38 W. E. 440 329, 332, ;^35 V. H., 18 Ch. D. 670 ; 50 L. J. Ch. 697 ; 45 L. T. 13 ; 30 W. B. 8 451, 470, 471 V. Swaiiie, 7 Ch. D. 42 ; 47 L. J. Ch. 5 ; 37 L. T. 376 ; 26 W. R. 30 467, 468, 506, 513 Barter. V. Cohnan, 19 Ch. D. 630; 51 L. J. Ch. 481; 46 L. T. 154; 30 W. R. 484 392 Harvev, lie, 1 Ch. (93) 567 ; 62 L. J. Ch. 328 ; 68 L. T. 562 -, Be, 1 Ch. (96) 137 ; 65 L. J. Ch. 370 ; 73 L. T. 613 V. Facey, A. C. (93) 552 ; 62 L. J. P. C. 127 ; 69 L. T 129 V. Municipal &c. Society, 26 Ch. D. 273 ; 53 L. J. Ch 408 ; 32 W. R. 557 V. OlUver, 57 L. T. 239 41 W. R. 293 552 44 W. R. 242 406 504; 42 W. R. 455 1126 ; 51 L. T. 410,411 37 ; 35 W. R. 584 234 522 629 ; 26 W. R. 144 Hastings, Be, 35 Ch. Div. 94; 56 L. J. Ch. 631 ; 57 L. T. 126 Hatch V. H., 9 Ves. 292 Hatfield v. Minet, 8 Ch. Div. 136 ; 47 L. J. Cn. 612 ; 38 L. T 701 Hatten v. Russell, 38 Ch. D. 334 ; 57 L. J. Ch. 425 ; 58 L. T. 271 ; 36 W. R. 317 462, 463, 478, 481 Hatton V. Haywood, 9 Ch. 229 ; 43 L. J. Ch. 372 ; 30 L. T. 279 ; 22 W. R. 356 425 Havelock v. H., 17 Ch. D. 807 ; 50 L. J. Ch. 778 ; 44 L. T. 168 ; 29 W. R. 859 249 Hawkes, Be, 2 Ch. (98) 1 ,• 67 L. J. Ch. 284 ; 78 L. T. 336 ; 46 W. R. 445 .. 430 V. Hubback, 11 Eq. 5 ; 40 L. J. Ch. 49 ; 23 L. T. 642 ; 19 W. R. 117 224 Hawkins V. Blewitt, 2 Esp. 663 202 Hawksley v. Uutram, 3 Ch. (92) 359 ; 62 L. J. Ch. 215 ; 67 L. T. 804 456, 604 Haygarth v. Wearing, 12 Kq. 320; 40 L. J. Ch. 577; 24 L. T. 825; 20 W. R. 11 511 Haynes, Be, 37 Ch. D. 306 ; 57 L. J. Ch. 519 ; 58 L. T. 14 ; 36 W. R. 321 .. 278 v. H., 1 Dr. & Sm. 426 92,471 v. — , 3 D. M. & G. 590 198 V. King, 3 Ch. (93) 439 ; 63 L. J. Ch. 21 ; 69 L. T. 855 ; 42 W. R. 56 312 v. Mico, 1 Bro. C. C. 129 162 Hayward, Be, 1 Ch. (97) 905 ; 66 L. J. Ch. 392 ; 76 L. T. 383 ; 45 W. R. 439 197 ■ V. E. London &c. Co., 28 Ch. D. 138 ; 54 L. J. Ch. 523; 52 L. T. 175 279 286 Haywood v. Silber, 30 Ch. Div. 404 ; 54 L. T. 108 ; 34W. R."ll4 .[ .. ' 477 Head, 2ie, 45 Ch. Div. 310 ; 59 L. J. Ch. 604 ; 63 L. T. 21 ; 38 W. R. 657 173, 482 , Be, 1 Q. B. (94) 638 ; 63 L. J. Q. B. 206 ; 70 L. T. 35 608 , Be, 2 Ch. (94) 236 ; 63 L. J. Ch. 549 ; 70 L. T. 608 ; 42 W. R. 419 .. 612 V. Gould, 2 Ch. (98) 250 46, 63 Heartley v. Nicholson, 19 Eq. 233 ; 44 L. J. Ch. 277 ; 22 L. T. 822 .. .. 11 Heasman v. Pearse, 7 Ch. 275 ; 41 L. J. Ch. 705 ; 20 W. R. 271 ; 26 L. T. 299 57 Heath v. Crealock, 10 Ch. 22 ; 44 L. J. Ch. 157 ; 31 L. T. 650 ; 23 W. R. 95 72 419 528 V. Pugh, 6 Q. B. Div. 345 ; 50 L. J. Q. B. 473 ; 44 L. T. 327 ; ' 29W. R. 904 72,377,380,439 V. Rollason, A. C. (98) 499 ; 79 L. T. 1 353, 355 Heathcote, Be, 58 L. T. 43 ; affd. 85 L. T. Jo. 120 90, 93 Heatley v. Newton, 19 Ch. Div. 326 ; 51 L. J. Ch. 225 ; 45 L. T. 455 ; 30W. R. 72 493 HeatoD, Be, 27 Ch. D. 570; 53 L. J. Ch. 959 ; 51 L. T. 220; 32 W. R. 951 330 338 Hecla Foundry Co. v. Walker, 14 App. 550 ; 59 L. J. P. C. 46 ; 61 L. T. 738 ' 353 Hedgely, Be, 34 Ch. D. 379 ; 56 L. J. Cli. 360 ; 56 L. T. 19 ; 35 W. R. 472 170 TABLE OF CASES. Ivii PAGE Hedley v. Bates, 13 Ch. D. 498 ; 49 L. J. Ch. 170 ; 42 L. T. 41 ; 28 W. R. 365 285 Hellier v. H., 9 P. D. 237 ; 53 L. J. P. 105 ; 33 W. R. 324 153 Helmore v. Smith (No. 1), 35 Ch. D. 436 ; 56 L. T. 535 ; 36 W. R. 3 620, 634 Helsby, Be, 63 L. J. Q. B. 261 ; 69 L. T. 864 233 Hemingway, Be, 45 Ch. D. 453 ; 60 L. J. Ch. 85 ; 63 L. T. 218 ; 39 W. R. 4 141 Henderson v. Astwood, A. C. (94) 150 397, 399, 400 V. Maxwell, 4 Ch. D. 163 ; 46 L. J. Ch. 59 ; 25 W. R. 66 .. 340 V, , 5 Ch. D. 892 ; 46 L. J. Ch. 891 ; 25 W. R. 455 .. 344 V. Rothschild, 56 L. J. Ch. 471 ; 56 L. T. 98; 35 W. R. 485 .. 19 Hendry v. Turner, 32 Ch. D. 355 ; 55 L. J. Ch. 562 ; 54 L. T. 292 ; 34 W. R. 513 623 Hengler, Be, 1 Ch. (93) 586 ; 62 L. J. Ch. 383; 68 L. T. 84 ; 41 W. R. 491 56 Henley, i?e, 75 L. T. 307 .. • .. .. 191 Henry Clay &c. Co., Be, 3 Ch. (92) 549 ; 62 L. J. Ch. 143 ; 67 L. T. 614 .. 329 Lister & Co., Be, 2 Ch. (92) 417 ; 61 L. J. Ch. 721 ; 67 L. T. 180; 40 W. R. 589 536 Hensman v. Fryer, 3 Ch. 420 ; 37 L. J. Ch. 97 ; 17 L. T. 394 .. .. 184 Henthorn v. Fraser, 2 Ch. (92) 27; 61 L. J. Ch. 373; 66 L. T. 439; 40W. R. 433 455 Henty v. Schroder, 12 Ch. D. 667 ; 48 L. J. Ch. 792 ; 27 W. R. 833 .. .. 500 V. Wrey, 21 Ch. Div. 332 ; 47 L. T. 231 ; 30 W. R. 850 .. 561, 568 Hepburn, Be, 14 Q. B. D. 394; 54 L. J. Q. B. 422 608 Hepworth v. H., 11 Eq. 10; 40 L. J. Ch. Ill ; 23 L. T. 388; 19 W. R. 46 .. 33 Herbage Rents, Be, 2 Ch. (96) 811 ; 65 L. J. Ch. 871 ; 75 L. T. 148 ; 45 W. R. 74 375 Herbert v. Salisbury &c. Ry. Co., 2 Eq. 221 ; 14 L. T. 507 ; 14 W. R. 706 262,484 Heritage v. Paine, 2 Ch. D. 594; 45 L. J. Ch. 295; 34 L. T. 947 .. .. 451 Hermann v. Hodges, 16 Eq. 18 ; 43 L. J. Ch. 192 ; 21 W. R. 571 .. .. 383 Hermann Loog v. Bean, 26 Ch. Div. 306 ; 53 L. J. Ch. 1128; 51 L. T. 442 ; 32 W. R. 994 320 Hesketh's Case, 78 L. T. 368 526 Hester v. H., 34 Ch. Div. 607 ; 56 L. J. Ch. 247 ; 55 L. T. 862 ; 35 W. R. 233 74 Hetling, Be, 3 Ch. (93) 269 ; 62 L. J. Ch. 783 ; 69 L. T. 266 ; 42 W. R. 19 48, 484 Hewett, Be, 1 Q. B. (95) 328 ; 64 L. J. Q. B. 185 ; 72 L. T. 60 ; 43 W. R. 237 233 V. Snare, 1 D. G. & Sm. 333 186 Hewitt v. Loosemore, 9 Ha. 449 .. .. .. .. .. .. .. 409 Heyman v. Dubois, 13 Eq. 158 ; 41 L. J. Ch. 224 ; 25 L. T. 558 .. 420, 576 Heywood, Be, 2 Ch. (97) 593 ; 67 L. J. Ch. 25 ; 77 L. T. 423 ; 46 W. R. 72 171 V. Mallalieu, 25 Ch. D. 357 ; 53 L. J. Ch. 492 ; 49 L. T. 658 ; 32W. R. 538 467,472,475,506 Hickley v. H., 2 Ch. D. 190 ; 45 L. J. Ch. 401 ; 34 L. T. 441 ; 24 W. R. 604 525 Hickman v. Berens, 2 Ch. (95) 638 ; 64 L. J. Ch. 785 ; 73 L. T. 323 .. .. 50 V. Upsall, 4 Ch. Div. 144 ; 46 L. J. Ch. 245 ; 35 L. T. 919 ; 25 W. R. 175 436 Hicks V. Hastings, 3 K. & J. 701 373 V. Ross, 14 Eq. 141 ; 41 L. J. Ch. 677 ; 26 L. T. 470 ; 3 Ch. (91) 499 ; 60 L. J. Ch. 853 ; 65 L. T. 200 ; 40 W. R. 172 199,200 Hickson v. Darlow, 23 Ch. D. 690 ; 52 L. J. Ch. 453 ; 48 L. T. 449 ; 31 W. R. 361, 417 397 Hiddingh v. Denyssen, 12 App. 624 ; 56 L. J. P. C. 107 ; 57 L. T. 885 .. 217 Hiern V. Mill, 13 Ves. 114 383 Higginbotham v. Hawkins, 7 Ch. 676; 41 L. J. Ch. 828; 27 L. T. 328; 20 W. R. 955 304 Higgins, Be, 21 Ch. D. 95 ; 51 L. J. Ch. 772 ; 30 W. R. 700 289 V. Frankis, 15 Jur. 277 .- 448 Iviii TABLE OF CASES. PAGE Higginshaw &c. Co., Re, 2 Ch. (96) 544; 65 L. J. Ch. 771; 75 L. T. 5; 45 W. R. 56 440 Hildersheim, Be, 2 Q. B. (93) 357 ; 69 L. T. 550 ; 42 W, R. 138 .. .. 606 Hill, Be, 50 L. J. Ch. 551 ; 45 L. T. 126 55 , i?e, 33 Ch. Div. 267 ; 55 L. T. 104 428 ■ V. Bullock, 2 Ch. (97) 482 ; 66 L. J. Ch. 705 ; 77 L. T. 240 ; 46 W. R. 84 381 V. Cooper, 2 Q. B. (93) 85 ; 62 L. J. Q. B. 423 ; 69 L. T. 216 ; 41 W. R. 500 233 v. Evans, 4 D. F. & J. 288 324 V. Hickin, 2 Ch. (97) 579 ; 66 L. J. Ch. 717 ;.77 L. T. 127 ; 46 W. R. 137 362 V. H., 1 Q. B. (97) 483 ; 66 L. J. Q. B. 329 ; 76 L. T. 103 ; 45 W. R. 371 9 V. Midland Ry. Co., 21 Ch. D. 143 ; 51 L. J. Ch. 774 ; 47 L. T. 225 ; 30 W. R. 774 299 V. Rowlands, 2 Ch. (97) 361 ; 66 L. J. Ch. 689 ; 77 L. T. 34 ; 46 W. R. 26 443 V. Thompson, 3 Mer. 622 322 V. Wilson, 8 Ch. 888 ; 42 L. J. Ch. 817 ; 29 L. T. 238 ; 21 W. R. 757 .. 12 Hillary, ii-e, 2 Dr. & Sm. 461 254 Hilliard v. Fulford, 4 Ch. D. 389 ; 46 L. J. Ch. 43 ; 35 L. T. 750 ; 25 W. E. 161 53,213 Hillman, Exparte, 10 Ch. Div. 622 ; 48 L. J. Bky. 77 ; 40 L. T. 177 ; 27 W. R. 567 27 Hills V. Down ton, 5 Ves. 557 553 V. H., 8 M. & W. 401 203 Hinchinbroke v. Seymour, 1 Bro. C. C. 395 .. .. .. .. .. 561 Hipgrave v. Case, 28 Ch. Div. 356 ; 54 L. J. Ch. 399 ; 52 L. T. 242 .. 486, 495 B.\v&\,, Ex parte, 11 Gh.D. 219, 25 • , Be, 45 Ch. D. 263 ; 60 L. J. Ch. 48 ; 63 L. T. 444 ; 38 W. R. 685 .. 560 Hitchman V. Stewart, 3 Dr. 271 573,575 Hixon V. Eastwood, 17 L. T. 489 362 Hoare, Be, 3 Ch. (92) 94 ; 61 L. J. Ch. 541 ; 67 L. T. 45 ; 41 W. R. 105 .. 393 V. Niblett, 1 Q. B. (91) 781 ; 60 L. J. Q. B. 565 ; 64 L. T. 659 ; 39 W. R. 491 607 Hobbs, Be, 36 Ch. D. 553 ; 57 L. J. Ch. 184 ; 58 L. T. 9 ; 36 W. R. 445 253, 434, 435 V. Wayet, 36 Ch. D. 256; 56 L. J. Ch. 819; 57 L. T. 225; 36W. R. 73 40,213 HoWvn V. H., 41 Ch. D. 200 ; 60 L. T. 499 ; 38 W. R. 12 .. 521, 522, 541, 544 Hobson V. Bass, 6 Ch. 792 ; 19 W. R. 992 573 V. Gorringe, 1 Ch. (97) 182 ; 66 L. J. Ch. 114 ; 75 L. T. 610 ; 45 W. R. 356 381 w. Trevor, 2 P. W. 191 263 V. Tulloch, 1 Ch. (98) 424 ; 67 L. J. Ch. 205 ; 78 L. T. 224 ; 46 W. R. 331 290 Hockey v. Western, 1 Ch. (98) 350 ; 67 L. J. Ch. 166 ; 78 L. T. 1 ; 46 W. R. 312 380 Hocking V. H., 4 Pat. Cas. 434 324 Hodge, i?e, 3 K. & J. 213 253 Hodges V. Grant, 4 Eq. 140; 36 L. J. Ch. 935 ; 15 W. R. 607 .. .. 193 V. H., 20 Ch. D. 749 ; 51 L. J Ch. 549 ; 46 L. T. 366 ; 30 W. R. 483 234, 237 Hod^kinson, Be, 2 Ch. (95) 190 ; 64 L. J. Ch. 663 ; 72 L. T. 617 ; 43 W. R. 594 39 Hodgson, ^e, 9 Ch. D. 673 ; 27 W. R. 38 196 , Be, 31 Ch. Div. 177 ; 55 L. J. Ch. 241 ; 54 L. T. 222 ; 34 W. R. 127 206, 608 Hodson, Be, 35 Ch. Div. 668 ; 56 L. J. Ch. 755 ; 56 L. T. 837 ; 35 W. R. 553 379 , Re, 2 Ch. (94) 421 ; 63 L. J. Ch. 609 ; 71 L. T. 77 ; 42 W. R. 531 222, 518 TABLE OF CASES. Hx PAGE Hodson V. Heuland, 2 Ch. (96) 428; 65 L. J. Ch. 754; 74 L. T. 811; 44 W. R. 684 459 Ho2g V. Scott, 18 Eq. 444 ; 42 L. J. Ch. 705 ; 31 L. T. 163 ; 22 W. R. 640 311, 341 Hoiden, Be, 20 Q. B. D. 43 ; 57 L. J. Q. B. 47 ; 58 L. T. 118 ; 36 W. R. 189 23, 545 , i?e, 57 L. J. Ch. 648 ; 59 L. T. 358 54 Hole V. Bradbury, 12 Ch. D. 886 ; 48 L. J. Ch. 673 ; 41 L. T. 250 ; 28 W. R. 39 .. .. .. 343,344,348 -y. Chard Union, 1 Ch. (94) 293 ; 63 L. J. Ch. 469 ; 70 L. T. 52 .. 486 Holford, Be, 3 Ch. (94) 30 ; 63 L. J. Ch. 637 ; 70 L. T. 777 ; 42 W. R. 563 250, 251 V. Acton U. Council, 2 Ch. (98) 240 289, 290 v. Wood, 4 Ves. 76 349 Holgate V. Shutt, 28 Ch. Div. Ill ; 54 L. J. Ch. 436 ; 51 L. T. 673 .. .. 588 Holland v. H., 4 Ch. 449 ; 38 L. J. Ch. 398 ; 17 W. R. 657 63 HoUingshead, Be, 37 Ch. D. 651 ; 57 L. J. Ch. 400 ; 58 L. T. 758 ; 36 W. R. 660 212 HoUinrake v. Triiswell, 3 Ch. (94) 420 ; 63 L. J. Ch. 719 ; 71 L. T. 419 .. 341 Holme V. Brunskill, 3 Q. B. Div. 495 ; 47 L. J. Q. B. 610 ; 38 L. T. 838 .. 583 V. Hammond, L. R. 7 Ex. 218 ; 41 L. J. Ex. 157 ; 20 W. R. 747 .. 604 Holmes, i?e, 29 Ch. Div. 786 ; 55 L. J. Ch. 33 417 v. Coghill, 12 Ves. 206 184,552 Holmesdale i;. West, 12 Eq. 280 ; 40 L. J. Ch. 795 29 Holroyde v. Garnett, 20 Ch. D. 532; 51 L. J. Ch. 663; 46 L. T. 801; 30W. R. 604 79 Holt, Be, 16 Ch. Div. 115 ; 29 W. R. 341 243 , Be, 1 Ch. (96) 711 ; 65 L. J. Ch. 410 ; 74 L. T. 225 ; 44 W. R. 369 .. 334 , Be, 2 Ch. (97) 525 ; 66 L. J. Ch. 734 ; 76 L. T. 776 ; 45 W. R. 650 .. 67 V. Collyer, 16 Ch. D. 718; 50 L. J. Ch. 311 ; 44 L. T. 214; 29 W. R. 502 .. .. .. 295 V. Everall, 2 Ch. Div. 266 ; 45 L. J. Ch. 433 ; 34 L. T. 599 ; 24 W. R. 471 22 Homfray v. Fothergill, 1 Eq. 567 ; 14 L. T. 49 626 Hone, ii-e, Ir. R. 8 Eq. 65 386 Honywood v. Forster, 30 B. 14 .. .. .. .. .. .. •• 116 V. H., 18 Eq. 306 ; 43 L. J. Ch. 652 ; 30 L. T. 761 ; 22 W. R. 749 303, 304, 306, 307 Hood -y. Aston, 1 Russ. 412 -y. Oglander, 34 B. 513 Hood-Barrs v. Cathcart, 2 Ch. (95) 411 ; 72 L. T. 583 ; 64 L. J. Ch. 461 43 W. R. 586 V. Heriot, A. C. (96) 174; 65 L. J. Q. B. 352; 74 L. T. 353 44 W. R. 481 V. , 2 Q. B. (96) 338 ; 65 L. J. Q. B. 622 ; 75 L. T. 15 45 W. R. 1 -, A. C. (97) 177 ; 66 L. J. Q. B. 356 ; 76 L. T. 299 45 W, R. 507 Hookham v. Pottage, 8 Ch. 91 ; 27 L. T. 595 ; 21 W. R. 47 Hoole V. Smith, 17 Ch. D. 434 ; 50 L. J. Ch. 576 ; 45 L. T. 38 ; 29 W. R. 601 379 190 612 212 78 467 77 Hooper, Be, W. N. (92) 151 ■ V. Keay, 1 Q. B. D. 178 ; 34 L. T. 574 ; 24 W. R. 485 ■ V. Smart, 1 Ch. D. 90 ; 45 L. J. Ch. 99 ; 33 L. T. 499 ; 24 W. R. 15: Hooson, Ex parte, 8 Ch. 231 ; 42 L. J. Bky. 19 ; 28 L. T. 4 ; 21 W. R. 152 . Hopcraft w. H., 76 L. T. 341 Hope, Be, 7 Ch. 523 ; 41 L. J. Ch. 797 ; 26 L. T. 814 ; 20 W. R. 694 V. D'He'douville, 2 Ch. (93) 361 ; 62 L. J. Ch. 589 ; 68 L. T. 516 41 W. R. 330 V. H., 2 Ch. (92) 336 ; 61 L. J. Ch. 441 ; 66 L. T. 522 ; 40 W. R. 522 - V. — , W. N. (93) 20 630 495 427 233 230 233 337 55 236 20 Ix TABLE OF CASES. PACK Hopkins, Be, 18 Ch. D. 370 ; 45 L. T. 117 ; 29 W. K. 767 191 • -, i?e, 19 Ch. Div. 61 ; 30 W. R. 601 218 , Be, 31 W. R. 495 ; 52 L. J. Ch. 736 ; 48 L. T. 513 191 V. Hemsworth, 2 Ch. (98) 347 417 Hopkitison, Be, 2 Ch. (92) 116 ; 61 L. J. Ch. 387; 66 L. T. 487 .. .. 329 , Be, A. C. (97) 249 ; 66 L. J. P. C. 38 ; 75 L. T. 462 .. .. 324 v. Rolt, 9 H. L. C. 514 419 Hopper V. Ccnyers, 2 Eq. 549 ; 12 Jur. N. S. 328 ; 14 W. R. 628 .. ..70 Hora V. H., 33 B. 88 252 Horlock, Be, 1 Ch. (95) 516 ; 64 L. J. Ch. 325 ; 72 L. T. 223 ; 43 W. R. 410 142,145,148,162,196 V. Smith, 17 B. 572 156 V. Wirgins, 39 Ch. Div. 142 ; 58 L. J. Ch. 46 ; 59 L. T. 710 138, 147, 148 Home, Be, 29 Ch. D. 736 ; 54 L. J. Ch. 919 ; 53 L. T. 562 481 Horsey Estate v. Steiger, 2 Q. B. (98) 259 ; 79 L. T. 116 277 Hosking v. Smith, 13 App. 582 ; 59 L. T. 565 ; 58 L. J. Ch. 367 ; 37 W. R. 257 411 Hotchkys, Be, 32 Ch. Div. 408 ; 55 L. J. Ch. 546 ; 55 L. T. 110 ; 34 W. R. 569 46,88 Houldsworth v. Glasgow Bk., 5 App. 317 ; 42 L. T. 194 ; 28 W. R. 677 513, 528 How V. Winterton (E.), 2 Ch. (96) 626 ; 65 L. J. Ch. 832 ; 75 L. T. 40 ; 45 W. R. 103 80,83 Howard v. Chaffers, 2 Dr. & Sm. 236 178 V. Fanshawe, 2 Ch. (95) 581 ; 64 L. J. Ch. 666 ; 73 L. T. 77 ; 43 W. R. 645 264, 265, 266, 267 u. Harris, 1 Vera. 190 385 V. Patent &c. Co., 38 Ch. D. 156 ; 57 L. J. Ch. 878 ; 58 L. T. 395 ; 36 W. R. 801 458 V. Shrewsbury (E. oQ, 17 Eq. 378 ; 43 L. J. Ch. 495 ; 29 L. T. 862 ; 22W. R. 290 ..'..'..'.. .. .. 253 Howarth, Be, 8 Ch. 415 ; 42 L. J. Ch. 316 ; 28 L. T. 54 ; 21 W. R. 449 .. 250 Howe V. Dartmouth, 7 Ves. 137 54 V. Smith, 2? Ch. Div. 89 ; 53 L. J. Ch. 1055 ; 50 L. T. 573 ; 32 W. R. 802 464,485 Howell V. Coupland, 1 Q. B. Div. 258; 46 L. J. Q. B. 147; 33 L. T. 832 ; 24W. R. 470 547,548 Hoyle, Be, 1 Ch. (93) 84 ; 62 L. J. Ch. 182 ; 67 L. T. 674 ; 41 W. R 81 455, 572 Hubback, Be, 29 Ch. Div. 934 ; 54 L. J. Ch. 923 ; 52 L. T. 908 ; 33 W. R. 666 180 Hubbard v. Alexander, 3 Ch. D. 738 ; 45 L. J. Ch. 740 ; 35 L. T. 52 ; 24 W. R. 1058 150,153 Hubbnck, Be, 1 Ch. (96) 754 ; 65 L. J. Ch. 271 ; 73 L. T. 738 ; 44 W. R. 289 54 Huddersfield (Corpn. of) V. Jacomb, W. N. (74) 80 359 &c. Co. V. Lister, 2 Ch. (95) 273 ; 64 L. J. Ch. 523 ; 72 L. T. 703 ; 43 W. R. 567 543 Huddleston, Be, 3 Ch. (94) 595 ; 64 L. J. Ch. 157 ; 43 W. R. 139 .. Hudson V. Buck, 7 Ch. D. 683 ; 47 L. J. Ch. 247 ; 38 L. T. 56 ; 26 W. R. 190 V. Cripps, 1 Ch. (96) 265 ; 65 L. J. Ch. 328 ; 73 L. T. 741 ; 44 W. R. 119 455, 481 200 Hughes, i?e, 36 W. R. 821 ; 59 L. T. 586 , Be, 1 Q. B. (93) 595 ; 62 li. J. Q. B. 358 ; 68 L. T. 629 ; 41 W. R. 466 , Be, 1 Ch. (98) 529 ; 67 L. J. Ch. 279 ; 78 L. T. 432 ; 46 VV. R. 502 V. Coles, 27 Ch. D. 231 ; 53 L. J. Ch. 1047 ; 51 L. T. 226 ; 33 W. R. 27 V. Kearmy, 1 Sch. & Lef. 132 V. Met, Ry. Co., 2 App. 439 ; 46 L. J. C. P. 583 ; 36 L. T. 932 ; 25 W. R. 680 267,276 290 203 21 235 198 489 TABLE OF CASES. Ixi PAGE Hughs V. Morris, 2 D. M. & G. 349 458 HugiU V. Wilkinson, 38 Ch. D. 480; 57 L. J. Cli. 1019 ; 58 L. T. 880 ; 36 W. E. 633 434 Huguenin V. Baseley, 14 Ves. 273 522,528 Huish, Be, 10 Eq. 5 ; 39 L. J. Ch. 499 ; 22 L. T. 565 ; 18 W. R. 817 .. 565 , Be, 43 Ch. D. 260 ; 69 L. J. Ch. 135 ; 69. L. T. 52 ; 38 W. R. 199 .. 147 Hulkey, Be, 33 Ch. D. 552 ; 55 L. J. Ch. 846 ; 55 L. T. 209 ; 34 W. R. 733 53, 64, 65 Hulme V. Tenant, 1 Bro. C. C. 16 224, 227 Hume, Be, 1 Ch. (95) 422 ; 64 L. J. Ch. 267 ; 72 L. T. 68 ; 43 W. R. 291 .. 6 V. Lopes, A. C. (92) 112 ; 61 L. J. Ch. 423 ; 66 L. T. 425 ; 40 W. R. 593 .. .. .. .. .. .. .. .. .. 42 43 199 V. Pocock, 1 Ch. 379*; 35 L. J. Ch, 731 ;"l2 Jur! N. s!*445 ; 14 L.'t. ' 386 ; 14 W. R. 681 474 V. , 1 Eq. 662 497 Hummel v. H., 1 Ch. (98) 642 ; 67 L. J. Ch. 363 ; 78 L. T. 518 ; 46 W. R. 507 558 Humphreys, Be, 3 Ch. (93) 1 ; 02 L. J. Ch. 498 ; 68 L. T. 729 ; 41 W. R. 519 251 , Be, 1 Q. B. (98) 520; 67 L. J. Q. B. 412; 78 L. T. 182; 46 W. R. 322 428 V. Green, 10 Q. B. Div. 148 ; 52 L. J. Q. B. 140 ; 48 L. T. 60 .. 459 V. Jones, 31 Ch. Div. 30 ; 55 L. J. Ch. 1 ; 53 L. T. 482 ; 84 W. R. 1 370 Hunt V. Fripp, 1 Ch. (98) 675 ; 67 L. J. Ch. 377 ; 77 L. T. 516 ; 46 W. R. 125 481 V. H., 28 Ch. Div. 606 ; 52 L. T. 302 ; 33 W. R. 157 240 V. Worsfold, 2 Ch. (96) 224 ; 65 L. J. Ch. 548 ; 74 L. T. 456 ; 44 W. R. 461 437 Hunt-Foulston v. Furber, 3 Ch. D. 285 ; 24 W. R. 756 200 Hunter, Be, 2 Ch. (97) 105 ; 66 L. J. Ch. 545 ; 76 L. T. 725 ; 45 W. R. 610 8 V. Dowling, 3 Ch. (93) 212 ; 62 L. J. Ch. 617 ; 68 L. T. 780 ; 42 W. R. 107 613,626 V. , 2 Ch. (95) 223 ; 64 L. J. Ch. 713 ; 72 L. T. 653 ; 43 W. R. 619 614,625 v. Waltens, 11 Eq. 292 ; 24 L. T. 276 71 V. , 7 Ch. 75 ; 41 L. J. Ch. 175 ; 25 L. T. 765 ; 20 W. R. 418 71, 412 V. Young, 4 Ex. Div. 256 ; 48 L. J. Ex. 689 ; 41 L. T. 142 ; 27 W. R. 637 213 Hurlbatt v. Barnett, 1 Q. B. (93) 77 ; 62 L. J. Q. B. 1 ; 67 L. T. 818 ; 41 W. R. 33 589,591 Hurry v. H., 10 Eq. 346 ; 39 L. J. Ch. 824 ; 22 L. T. 577 ; 18 W. R. 829 .. 364 Hurst V. Beach, 5 Madd. 351 149,152 V. H., 28 Ch. D. 159 ; 54 L. J. Ch. 190 ; 33 W. R. 473 183 Hussey v. Home Payne, 4 App. 311 ; 48 L. J. Ch. 846 ; 41 L. T. 1 ; 27 W. R. 585 454, 455, 456 Hutchings v. Humphrey, 33 W. R. 563 ; 54 L. J. Ch. 650 ; 52 L. T. 690 .. 500 Hutchins, Ex parte, 4 Q. B. Div. 483; 48 L. J. Q. B. 505; 41 L. T. 144; 27 W. R. 857 349 Hutchinson, Be, 8 Ch. Div. 540; 39 L. T. 86; 26 W. R. 904 9 v. Hartmont, W. N. (77) 29 77,78 Hyatt, Be, 38 Ch. D. 609 ; 57 L. J. Ch. 777 ; 59 L. T. 297 .. .. 170, 212 Hyde v. Warden, 3 Ex. Div. 72 ; 47 L. J. Ex. 121 ; 37 L. T. 567 459, 477, 482 Hyett V. Mekin, 25 Ch. D. 735 ; 53 L. J. Ch. 241 ; 50 L. T. 54 ; 32 W. R. 513 89 99 Hyman v. Helm, 24 Ch. Div. 531 ; 49 L. T. 376 ; 32 W. R. 258 .. .. 284 Hyslop, Be, 3 Ch. (94) 522 ; 64 L. J. Ch. 108 ; 71 L. T. 373 ; 43 W. R. 13 Ixii TABLE OF CASES. PAGE Ihlee V. Henshaw, 31 Ch. D. 323; 55 L. J. Ch. 273; 53 L. T. 949; 34 W. R. 269 332 niidge, Be, 27 Ch. Div. 478; 53 L. J. Ch. 990; 51 L. T. 523; 33 W. R. 18 169, 180, 183 Imperial &:c. Association v. Coleman, L. R. 6 H. L. 189; 42 L. J, Ch 644; 29 L. T. 1 ; 21 W. R. 696 36,65 Bank v. Trustees &c. Corporation, W. N. (95) 23 530 Co. V. Stone, 1 Q. B. r92) 599 ; 61 L. J. Q. B. 449 ; 66 L. T. 556 518 Bank v. London &c. Co., 5 Ch. D. 195 ; 46 L J. Ch. 335 ; 36 L. T. 233 578 Imtay v. Oakshette, 2 Q. B. (97) 218 ; 66 L. J. Q. B. 544 ; 76 L. T. 632 ; 45 W. R. 681 75,271 Incorporated Society v. Richards, 1 Dr. & W. 258 403 Inde Coop v. Emmerson, 12 App. 300; 56 L. J. Ch. 989; 56 L. T. 778; 36 W. R. 243 72 Incrham, lie, 1 Ch. (93) 352 ; 62 L. J. Ch. 100; 68 L. T. 152; 41 W. R. 235 210, 408, 409 Incrle, Be, 11 Eq. 578 ; 40 L. J. Ch. 310; 24 L. T. 315 ; 19 W. R. 676 .. 537 Inman, Be, 3 Ch. (93) 518 ; 62 L. J. Ch. 940; 69 L. T. 374 197 Ireland (Bk. of) V. McCarthy, A. C. (98) 181 194 Irvine v.- Young, 1 S. & S. 333 .. .. .. .. .. .. .. 587 Irwin, i?e, W. N. (95) 23 49 Isaac, Be, 30 Ch. Div. 418 ; 54 L. J. Ch. 1136 ; 53 L. T. 478 ; 33 W. R. 845 236 V. Wall, <3 Ch. D. 706 ; 46 L. J. Ch. 576 ; 37 L. T. 227 ; 25 W. R. 844 35 Isaacs, Be, 3 Ch. (94) 506 ; 63 L. J. Ch. 815 ; 71 L. T. 386 ; 42 W. R. 685 .. 91 v. Chinery, 74 L. T. 320 633 V. Towell, 2 Ch. (98) 285 469 Isaacson, Be, 1 Q. B. (95) 333 ; 64 L. J. Q. B. 191 ; 71 L. T. 812 ; 43 W. R. 278 381 V. Harwood, 3 Ch. 225 ; 37 L. J. Ch. 209 63 Ives V. WiUans, 2 Ch. (94) 478 ; 63 L. J. Ch. 521 ; 70 L. T. 674 ; 42 W. R. 483 589 J. V. S., 3 Ch. (94) 72 ; 63 L. J. Ch. 615 ; 70 L. T. 757, 758 ; 42 W. R. 617 622 Jackson, Be, 14 Ch. D. 851; 49 L. J. Ch. 523; 41 L. T. 719; 28 W. R. 794 461,469 , Be, 34 Ch. D. 732 ; 56 L. J. Ch. 593 ; 56 L. T. 562 ; 35 W. R. 646 397 , Be, 37 Ch. D. 44 ; 57 L. J. Ch. 243 ; 57 L. T. 753 ; 36 W. R. 396 494 , Be, 40 Ch. D. 495 ; 58 L. J. Ch. 387 ; 60 L. T. 589 ; 37 W. R. 282 40 -y. Pease, 19 Eq. 96 ; 23 W. R. 43 184 V. Rainfurd Coal Co., 2 Ch. (96) 340 ; 65 L. J. Ch. 757 ; 44 W. R. 554 381 Jacob V. Lucas, 1 B. 436 51 Jacobs, Ex parte, 10 Ch. 211 ; 44 L. J. Bky. 34 ; 31 L. T. 745 ; 23 W. R. 251 .. .. .. .. 583 V. Seward, L. R. 5 H. L. 464 ; 41 L. J. C. P. 221 ; 27 L. T. 185 .. 361 Jacomb V. Turner, 1 Q. B. (92) 47 356,539 Jacques -y. Harrison, 12 Q. B. Div. 165; 53 L. J. Q. B. 137; 50 L. T. 246; 32 W. R. 470 275 Jacubs v. Rylance, 17 Eq. 341 ; 43 L. J. Ch. 280 66 Jaggur V. J., 25 Ch. D. 729 ; 53 L. J. Ch. 201 ; 49 L. T. 667 ; 32 AV. R. 284 57, 58 James v. Couchman, 29 Ch. D. 212 ; 54 L. J. Ch. 838 ; 52 L. T. 344 ; 33W. R. 452 541,542,545 V. Kerr, 40 Ch. D. 449 ; 58 L. J. Ch. 355 ; 60 L. T. 212 ; 37 W. R. 279 519 TABLE OF CASES. Ixiii PAGE James V. Rice, 5 D. M. & G. 461 384 V. Rumsey, 11 Ch. D. 398; 48 L. J. Ch. 345; 27 W. R. 617 ., .. 397 V. Smith, 65 L. T. 544 5,455 Jaques v. Millar, 6 Ch. D. 153 ; 47 L. J. Ch. 544 ; 37 L. T. 151 ; 25 W. R. 846 455,485 Jarmain v. Chatterton, 20 Ch. Div. 493 ; 51 L. J. Ch. 471 ; 30 W. R. 461 .. 80 Jarman, Ee, 8 Ch. D. 584 ; 47 L. J. Ch. 675 ; 39 L. T. 89 ; 26 W. R. 907 .. 7 Jarratt v. Aldam, 9 Eq. 463 ; 39 L. J. Ch. 349 ; 21 L. T. 192 ; 18 W. R. 511 543, 545 Jarvis V. J., 63 L. J. Ch. 10 ; 69 L. T. 412 454 Jay V. Johnstone, 1 Q. B. (93) 189 ; 62 L. J. Q. B. 128 ; 68 L. T. 129 ; 41 W. R. 161 433 V. Ladler, 40 Ch. D. 649 ; 60 L. T. 27 ; 37 W. R. 505 329 V. Robinson, 25 Q. B. Div. 467 ; 59 L. J. Q. B. 367 ; 63 L. T. 174 ; 38W. R. 550 230 Jefferv, Be, 2 Ch. (95) 577 ; 64 L. J. Ch. 830 ; 73 L. T. 332 ; 44 W. R. 61 251 Jetferys V. Boosey, 4 H. L. C. 815 339 JeftVies V. Alexander, 8 H. L. C. 594 16 Jegon V. Vivian, 6 Ch. 742 ; 40 L. J. Ch. 389 ; 19 W. R. 365 .. .. 297, 400 Jenkins V. Coomber, 2 Q. B. (98) 168 572 v. Hiles, 6 Ves. 646 480 V. Hope, 1 Ch. (96) 278 ; 65 L. J. Ch. 249 ; 73 L. T. 705 ; 44 W. R. 358 339 V. Jackson, 40 Ch. D. 71 ; 58 L. J. Ch. 124 ; 60 L. T. 105 ; 37 W. R. 253 310 V. Robertson, 2 Dr. 351 582 Jenks V. Clifden, 1 Ch. (97) 694 ; 66 L. J. Ch. 338 ; 76 L. T. 382 ; 45 W. R. 424 .. ., . .. .. 318 Jenner v. Turner, 16 Ch. dVi88 ; 50 L. J.Ch. 161 ; 43 L. T. 468 ; 29 "w. R. 99 508 Jenner-Fust v. Needham, 32 Ch. Div. 582 ; 55 L. J. Ch. 629 ; 55 L. T. 37 ; 34 W. R. 709 445 Jennings, i?e, W. N. (92) 156 24 V. Hammond, 9 Q. B. D. 225 ; 51 L. J. Q. B. 493 ; 31 W. R. 40 .. 621 V. J., 1 Ch. (98) 378 ; 67 L. J. Ch. 190 ; 77 L. T. 786 ; 46 W. R. 344 538,539,540,614,615,618 — V. Jordan, 6 App. 698 ; 51 L. J. Ch. 129 ; 45 L. T. 593 ; 30 W. R. 3f9 .. .. .. .. .. .. .. .. .. 392 438 Jervis'v. Berridge, 8 Ch. 35i ; 42 L. J. Ch. 518 ;"28 L. T. 481*;" 21 W* R. 395 ' 457 V. Wolferstan, 18 Eq. 18 ; 43 L. J. Ch. 809 ; 30 L. T. 452 .. 40, 162, 213 Jervoise V. J., 17 B. 566 208 Jeston V. Key, 6 Ch. 610; 40 L. J. Ch. 503 ; 25 L. T. 522 ; 19 W. R. 864 .. 159 Job V. Pott on, 20 Eq. 84; 44 L. J. Ch. 262 ; 32 L. T. 110 ; 23 W. R. 588 .. 361 Jobson V. Palmer, 1 Ch. (93) 71 ; 62 L. J. Ch. 180 ; 67 L. T. 797 ; 41 W. R. 264 50, 214 Jodrell V. J., 14 B. 397 252 John Harper & Co. v. Wright, 1 Ch. (96) 142 ; 65 L. J. Ch. 161 ; 44 W. R. 274 .. .. .. ., .. .. .. .. ., .. 353 Johns V. Janies, 8 Ch. Div."744 ; 47 L. J.' Ch. 853 ; 39 L. T. 54 • 29 W. R. 82i 19 Johnson, Ee, 15 Ch. Div. 548 ; 49 L. J. Ch. 745 ; 43 L. T. 372 ; 29 W. R. ]63 210,211 , Be, 20 Ch. D. 389 ; 51 L. J. Ch. 154 ; 46 L. T. 222 ; on app. 51L. J. Ch. 5U3 20 , Be, 29 Ch. D. 964; 52 L. T. 682 ; 33 W. R. 502 199 -, Be, 30 Ch. Div. 42 ; 54 L. J. Ch. 889 ; 51 L. T. 656 ; 53 L. T. 281 ; 33 W. R. 737 479 , Be, W. N. (86) 72 217 Ixiv TABLE OF CASES. PAGE Johnson, Re, 3 Ch. (91) 48 ; GO L. J. Ch. 499 ; G4 L. T. 696 ; 39 W. R. 509 235 255 V. Edge, 2 Ch. (92) 1 ; 61 L. J. Ch. 262 ; 66 L. T. 44 ; 40 W. R. 437 ' 328 V. J., 35 Ch. D. 345 ; 56 L. J. Ch. 326 ; 56 L. T. 163 ; 35 W. R. 329 219 V. Lyttles Iron Agency, 5 Ch. Div. 687 ; 46 L. J. Ch. 786 ; 36 L. T. 528 ; 25 W. R. 548 278 V. Medlicott, 3 P. W. 130 n 473 V. Nevvnes, 3 Ch. (94) 663; 63 L.J. Ch. 786; 71 L. T. 230; 43W. R. 572 339,340 v. Smith, 1 Ves. Ben. 314 203 - V. Wild, 44 Ch. D. 146 ; 59 L. J. Ch. 322 ; 62 L. T. 537 ; 38 W. R. 500 476 Johnston, i?e, 26 Ch. D. 538 ; 53 L. J. Ch. 645 ; 32 W. R. 634 ..29 -, He, 3 Ch. (94) 204 ; 63 L. J. Ch. 753 ; 71 L. T. 392 ; 42 W. R. 616 24 — V. Orr Ewing, 7 App. 219 ; 51 L. J. Ch. 797 ; 46 L. T. 216 ; 30 W. R. 417 330 Johnstone v. Cox, 19 Ch. Div. 17 ; 45 L. T. 657 ; 30 W. R. 114 .. 415, 446 Joliffe V. Baker, 11 Q. B. D. 255; 52 L. J. Q. B. 609; 48 L. T. 966; 32W. R. 59 513 Jones, i?e, 49 L. T. 91 64 , Be, 31 Ch. D. 440 ; 55 L. J. Ch. 350 ; 53 L. T. 855 ; 34 W. R. 249 169, 179, 181 Be 41 Ch. D. 159 ; 37 W. R. 615 ; 58 L. J. Ch. 582 ; 61 L. T. 219 .. 594 ', Be, 2 Ch. (93) 461 ; 62 L. J. Ch. 996 ; 69 L. T. 45 362, 406, 420, 470, 518 , i?e, W. N. (95) 123 427 , Be, 1 Ch. (98) 438 ; 67 L. J. Ch. 211 ; 78 L. T. 74 ; 46 W. R. 313 .. 197 , i?e, 2 Ch. (98) 83 31 V. Clifford, 3 Ch. D. 779 ; 45 L. J. Ch. 809 ; 35 L. T. 937 ; 24 W. R. 979 473, 476, 539 V. Daniel, 2 Ch. (94) 332 ; 63 L. J. Ch. 562 ; 70 L. T. 588 ; 42 W. R. 687 455 V. Davies, 8 Ch. D. 205 ; 47 L. J. Ch. 654 ; 38 L. T. 710 ; 26 W. R. 554 99, 389, 438 v. Foxall, 15 B. 388 65 v. Green, 2 Y. & J. 298 261 V. Higc^ins, 2 Eq. 528 ; 35 L. J. Ch. 403 ; 14 L. T. 126 ; 14 W. H. 448 80 V J., 1 Q. B. D. 279 ; 45 L. J. Q. B. 166 ; 34 L. T. 243 ; 24 W. R. 274 508 V Lloyd, 18 Eq. 265 ; 43 L. J. Lh. 826 ; 30 L. T. 487 ; 22 \V»K. 785 621, 636 V. Lock, 1 Ch. 25 ; 35 L. J. Ch. 117 ; 11 Jur. N. S. 913 ; 14 W. R. 149 16 V. Merionethshire &c. Society, 1 Ch. (92) 173 ; 61 L. J. Ch. 138 ; 65 L. T. 685 ; 40 W. R. 273 10,504 V. Mudd, 4 Russ. 118 483,484 V Ogle, 8 Ch. 192 ; 42 L. J. Ch. 334 ; 28 L. T. 245 ; 21 W. R. 239 .. 55 V. Rimmer, 14 Ch. Div. 588 ; 49 L. J. Ch. 775 ; 43 L. T. Ill ; 29 W. R. 165 475 v. Selby, Free. Ch. 300 203 V. Victoria &c. Co., 2 Q. B. Div. 314 ; 46 L. J. Q. B. 219 ; 36 L. T. 347 ; 25 W. R. 501 454 V. Watts, 43 Ch. Div. 574 ; 62 L. T. 471 ; 38 W. R. 725 .. 476, 478 i;. Welch, 1 K. & J. 765 621,637 V. Whitaker, 57 L. T. 216 584 Jordan, Be, 13 Q. B. D. 228 ; 53 L. J. Q. B. 554 ; 50 L. T. 594 ; 33 W. R. 153 422 Joshua Stubbs, Be, 1 Ch. (91) 475; 60 L. J. Ch. 190; 64 L. T. 306; 39 W. R. 617 440 Judkin, Be, 25 Ch. D. 743 ; 53 L. J Ch. 496 ; 50 L. T. 200 ; 32 W. R. 407 196, 197, 249 TABLE OF CfASES. Ixv PAGE Kauberg's Case, 3 Ch. (92) 1 ; 61 L. J. Ch. 741 ; 66 L. T. 700 .. 510, 513 Kay, Re, 2 Ch. (97) 518 ; 66 L. J. Ch. 759 ; 46 W. R. 74 69 Kave, Be, 1 Ch. 387 ; 12 Jar. N. S. 350 ; 14 L. T. 388 ; 14 W. R. 597 243, 247 Kearley, He, 7 Ch. D. 615 ; 47 L. J. Ch. 474 ; 38 L. T. 92 ; 26 W. R. 324 .. 481 V. Thomson, 24 Q. B. Div. 742 ; 59 L. J. Q. B. 288 ; 63 L. T. 150 ; 38 W. R. 614 10,504 Keate v. Phillips, 18 Ch. D. 560 ; 50 L. J. Ch. 664 ; 44 L. T. 731 ; 29 W. R. 710 412 Keeble, i?e, 78 L. T. 383 483 Keech V. Sandford, Selt^ct Cases in Chancery 61 ., ,. .. .. .. 34 Keene v. Biscoe, 8 Ch. D. 201 ; 47 L. J. Ch. 644; 38 L. T. 286 ; 26 W. R. 552 380 Keith V. National &c. Co., 2 Ch. (94) 147 ; 63 L. J. Ch. 373 ; 70 L. T. 276 ; 42 W. R. 3H0 276 Kekewich v. Manning, 1 D. M. & G. 176 14 Kellnnd v. Fulford, 6 Ch. D. 491 ; 47 L. J. Ch. 94 ; 25 W. R. 606 .. 100, 101 Kfllock's Case, 3 Ch. 7«9 ; 37 L. J. Ch. 415 ; 16 W. R. 919 ., .. 191, 420 Kelly V. Byles, 13 Ch. Div. 682 ; 49 L. J. Ch. 181 ; 28 W. R. 585 .. ..342 V. Monis, 1 Eq. 697 ; 35 L. J. Ch. 423 ; 14 L. T. 222 ; 14 W. R. 496 341, 347, 348 Kemj), Ex parte, W.'N. {93) 15Z 25 V. Goldberg, 36 Ch. D. 505 ; 56 L. T. 736 ; 36 W. R. 278 .. .. 443 V. Lester, 2 Q. B. (96) 162; 65 L. J. Q. B. 532; 74 L. T. 268; 44 VV. R. 453 395 V. Wngbt, 1 Ch. (95) 121 ; 64 L. J. Ch. 59 ; 71 L. T. 650 ; 43 W. R. 2 1 3 411 Kempson v. Ashbee, 10 Ch. 15; 44 L. J. Ch. 195; 31 L. T. 525 23W. R. 38 521,530,533 Kendal v. Wood, L. R. 6 Ex. 243 ; 39 L. J. Ex. 167 ; 23 L. T. 309 .. .. 607 Kendall, j^x^sar^e, 17 Ves. 514 207 V. Hamilton, 4 App. 504 ; 48 L. J. C. P. 705 ; 41 L. T. 418 ; 28W.R. 97 607,609 Kenlis v. Hodgson, 2 Ch. (95) 458 ; 64 L. J. Ch. 585 ; 72 L. T. 866 .. 93, 480 Kennard v. K., 8 Ch. 227 ; 42 L. J. Ch. 280 ; 28 L. T. 83 ; 21 W. R. 206 551, 554 Kennedy v. De Trafford, A. C. (97) 180 ; 66 L. J. Ch. 413 ; 76 L. T. 427 ; 45 W. R. 671 396 V. Lyell, 15 Q. B. D. 491 ; 53 L. T. 466 474 Kenrick v. Lawrence, 25 Q. B. D. 99 ; 38 W. R. 779 350 Kensinaton &c. Co. v. Lane Fox Electrical Co., 2 Ch. (91) 573; 64 L. T. 770; 39 W. R. 650 328 Kent V. Riley, 14 Eq. 190 ; 41 L. J. Ch. 569 ; 27 L. T. 263 ; 20 W. R. 852 .. 20 Kent's Case, 39 Ch. Div. 259 ; 57 L. J. Ch. 977 ; 59 L. T. 449 ; 36 W. R. 818 594 Kerr, Be, 8 Eq. 331 ; 38 L. J. Ch. 539 ; 17 W. R. 989 384 Kershaw, Be, 37 Ch. I). 674 ; 57 L. J. Ch. 599 ; 58 L. T. 512 ; 36 W. R. 413 190 V. K., 9Eq. 56; 21 L. T. 651; 18 W. R. 477 484 Kettleby -y. Atwood, 1 Vern. 471 87 Kettlevvell v. Watson, 26 Ch. Div. 501 ; 53 L. J. Ch. 717 ; 51 L. T. 135 ; 32W.R.865 414,415,489 Kevan v. Crawford, 6 Ch. Div. 29 ; 46 L. J. Ch. 729 ; 37 L. T. 322 ; 25 W. R. 49 22 Kewney v. Attrill, 34 Ch. D. 345; 56 L. J. Ch. 448; 55 L. T. 805; 35 W. R. 191 616 Keys V. Williams, 3 Y. & C. Ex. Ca. 55 383, 384 Kibble v. Fairthorne, 1 Ch. (95) 219; 64 L. J. Ch. 184; 71 L. T. 7;- 5; 43 W. R. 327 .. .. 433 Kidd, Be, 1 Ch. (93) 695 ; 62 L. J. Ch. 436 ; 68 L. T. 647 ; 41 W. R. 507 .. 480 , Be, 70 L. T. 648; 42 W. R. 571 .. .. 210 , Be, 3 Ch. (94) 558 ; 63 L. J. Ch. 855 ; 71 L. T. 481 ; 43 W. R. 5J . . 191 Ixvi TABLE OF CASES. PAGE Kidderminster (Mavor oQ v. Harwick, L. R. 9 Ex. 13 ; 43 L. J. Ex. 9 ; 29 L. T. 612 ; 22 W. R. 160 454 Kidssrrove &c. Co., i?e, W. N. (94) 25 594 Kilford V. Blaney, 31 Ch. Div. 56; 55 L. J. Ch. 185; 54 L. T. 287; 34W.R. 109 184,187,188 Kilpin V. Ratlev, 1 Q. B. (92) 582 ; 66 L. T. 797 ; 40 W. R. 479 .. .. 14 Kimber v. Barber, 8 Ch. 56 ; 27 L. T. 526 ; 21 W. R. 65 526 Kinahan V. Bolton, 15 Ir. Ch. Rep. 75 336 King, Be, 14 Ch. D. 179 ; 49 L. J. Ch. 73 ; 28 W. R. 344 14 , Be, 2 Ch. (92) 462 ; 67 L. T. 83 ; 62 L. J. Ch. 153 ; 40 W. R. 580 .. 332 I'. Chamberlayn, W. N. (87) 158 463,481 ;r. Houuh, W. N. (95) 60 444 V. Lucas, 23 Ch. Div. 712; 53 L. J. Ch. 64; 49 L. T. 216; 31W. R.904 224,225 V. Zimmerman, L. R. 6 C. P. 466 ; 40 L. J. C. P. 278 ; 24 L. T. 623 ; 19 W. R. 1009 549 Kingdon v. Kirk, 37 Ch. D. 141 ; 57 L. J. Ch. 328 ; 58 L. T 383 ; 36 W. R. 430 485 Kingston, Ex parte, 6 Ch. 632 ; 40 L. J. Bky. 91 ; 25 L. T. 250 ; 19 W. R. 910 60 &c. Co. (No. 2), Be, 2 Ch. (96) 279 ; 65 L. J. Ch. 673 ; 74 L. T. 568 526 (Mayor &c. of) v. Harding, 2 Q. B. (92) 494 ; 62 L. J. Q. B. 55 : 67 L; T. 239 ; 41 W. R. 19 583 Kinnaird v. 'I'rollope, 39 Ch. D. 636 ; 57 L. J. Ch, 905 ; 59 L. T. 433 ; 37W. R. 234 390,391 V. , 42 Ch. D. 610 ; 58 L.- J. Ch. 556 ; 60 L. T. 892 447, 448 Kinsman v. Ronse, 17 Ch. D. 104 ; 50 L. J. Ch. 486 ; 44 L. T. 597 ; 29 W. R. 627 432 Kirby v. Harrogate Sch. Bd., 1 Ch. (96) 437 ; 65 L. J. Ch. 376 ; 74 L. T. 6 .. 290 Kirk V. Eddowes, 3 Ha. 509 143 Kirkheaton &c. Board v. Ainley, 2 Q. B. (92) 274 ; 61 L. J. Q. B, 812 ; 67 L. T. 209 ; 41 W. R. 99 311 Kirkman w. Miles, 13 Ves. 338 104 Kirkpatrick v. Bedford, 4 App. 96 .. .. .. .. .. .. 149 Kirkwood v. Smith, 1 Q. B. (96) 582 ; 65 L. J. Q. B. 408 ; 74 L. T. 423 ; 44W. R. 480 ■ .576 Kirwan, Be, 25 Ch. D. 373 ; 52 L. J. Ch. 952 ; 49 L. T. 292 ; 32 W. R. 581 554, 556, 558, 564 Kitts V. Mooro, 1 Q. B. (95) 253 ; 64 L. J. Ch. 152 ; 71 L. T. 676 .. 279, 591 Knight, Be, 26 Ch. Div. 82 ; 50 L. T. 550 ; 32 W. R. 417 53 , Be, 2 Ch. (92) 368 ; 61 L. J. Cn. 399 ; 66 L. T. 646 ; 40 W. R. 460 428 w. K., 3B. 148 9 V. Si.nmonds, 2 Ch. (96) 294; 65 L. J. Ch. 583; 74 L. T. 563; 44 W. R. 580 290 Knights v. Atkyns, 2 Vern. 20 87 Knox V. riye, L. R. 5 H. L. 656 ; 42 L. J. Ch. 234 .. .. 532, 627, 629 Krehl V. Burrell, 11 Cn. Div. 146 ; 48 L. J. Cli. 252 ; 40 L. T. 637 ; 27 W. R. 805 .. . .. .. -. .. 317 Kronlaeim v'. Johnson, 7"ch. d! 60; 47 L. J. Ch."l32; 37 L. T. 751*; 26 W. R. 142 5, 13 Kusel V. Watson, 11 Ch. Div. 129 ; 48 L. J. Ch. 413 ; 27 W. R. 714 455, 459, 462 La Banque jMcques-Cartier v. La Banque D'Epargne, 13 App. Ill; 57L. J. i\C. 42 530,543 Labouchere v Hcs.-i, 77 L. T. 5G9 .. .. .. .. .. .. .. 345 TABLE OF CASES. Ixvii PAGE 529 ^'f hTS) M%f-U L. J. Ch. 215 ; 32 L. T.'is ; 23^^. R:-285 .'i U4 Lacon. ^e, 2 Ch. (91) 482 ; 60 L. J. Ch. 403 ; 64 L. T. 429 ; 39 W. «• 5|4^3^^\30, 314 526 465 198 343 Ladyman v. Grave, 6 Ch. 763 ; 25 L. T. 52 ; 19 W. R- 863 .. .. .. Ladywell &c. C. v. Brookes, 35 Ch. Div. 400 ; 56 L. J. Ch. 684 ; 56 L. T. 677 ; 35W. R. 785 ••«^,.Vt, .A' Lamare v. Dixoii, L. R. 6 H. L. 414 ; 43 L. J. Ch. 203 ; 22 W. R. 49 .. Lamb V. Brewster, 4 Q. B. Div. 607 ; 48 L. J. Q. B. 421 ; 40 L. T. 537 ; 27 W R 478 V, E'vans, 1 Ch. (93) 218 ; 62 L. J. Ch. 404 ; 68 L T 131 ; 41 W R 405 Lambe v. EamJs, 6 Ch. 597 ; 40 L. J. Ch. 447 ; 25 L. T. 175 ; 19 W. R. 659 9 Lambert, Be, 39 Ch. D. 626 ; 57 L. J. Ch. 927 ; 59 L. T 429 . ... •• 236 1 Be, 2 Ch. (97) 169 ; 66 L. J. Ch. 624 ; 76 L. T. 752 ; 45 W. R.^ ^^^ —. V. L., 16 Eq. 320; 43 L.' J. Ch:'l06 ; 27 L. T. 59 ; 20 W. R. 943 .. ' 183 Lancaster &c. Co. i;. Cooper, 9 Ch.D. 594; 27 W.R. 164 .. .. 437 Laiicefield v. Ig^^ulden, 10 Ch. 136; 44 L. J. Ch. 203; 31 L. T. 813; 23 W. H. 223 ^^^ Lancy V. Fah-echild, 2 Vern. 101.. .. .. •• •• '\rK i'^r, ^a Lander, Be, 3 Ch. (92) 41 ; 61 L. J. Ch. 707 ; 67 L T. 521 455,^77, 494 Lands &c. Co., Be, 1 Ch. (94) 616; 63 L. J. Ch. 291; 70 L. T. 286 ; 42 W R 404 dt), 6t5, 0t)4 Lane,i?e,"l4Ch.D:"856; 49 L. J. Ch. 768 ; 43 L. T. 87 ; 28 W R. 764 .. 193 Pe 23 B D 74 : 58 L. J. Q. B. 373 ; 61 L. T. 54 ; 37 W. R. 671 .. 21 Lane'#ox .' Kensington &c. Co., 3 Ch. (92) 424 ; 67 L. T 440 ..321 322, 323 Lanfranchi v. Mackenzie, 4 Eq. 421; 36 L. J. Ch. 518; 16 L. 1. 114; 15 W. R. 614 Lang V. L., 8 Sim. 451 Langdale, i?e, 10 Eq. 39 J^ Langmead V. Cockerton, 25 W. R. 315 .. •• ^•- ^^ ^c!« Langton v. Waite, 4 Ch. 402 ; 20 L. T. 337 ; 17 W. R. 475 3.)8 LRScelles v. Butt, 2 Ch. D. 588 ; 35 L. T. 122 .. .. Laslimar, Be, 1 Ch. (91) 2^8 ; 60 L. J. Ch. 143 ; 64 L. T 333 .. .. La Societe Anonyme, Be, 2 Ch. (94) 26 ; 63 L. J. Ch. 381 ; 70 L. T. 295 ; 42 W. R. 420 Lathom V. Greenwich &-C. Co., 72 L. T. 790 .. .. •• :\ ^m ^ Lauvi V. Renad, 3 Ch. (92) 402 ; 61 L. J. Ch. 580 ; 67 L. T. 275 ; 40 W. R.^ ^^^ 679,. .. .. •• •• •• •• •• •• " ' -|^28 Laurie r. Clutton, 15 B. 131 .. .. ^ •• ^ ,:'^r.r^ " " "' kqa V. Scholefield, L. R. 4 C. P. 622 j 3^8 L. J. C.^P. 290 580 314 161 43 374 39 330 446 Laver i^.'Sotham, 1 Q. B. (95) 59 ; 64 L. J. Q. B. 110 .. .. Lavery v. Parsell, 39 Ch. D. 508; 57 L. J. Ch. 570; 58 L. T. 846; 07 \X7 r> 1 CO .. .. .. .. •• 4:04, ^00 Law ; Ga;rett, 8 Ch. Div. 26 ; 38L. T. 3; 26 W. R. 426 .. •• 590, 628 - :.- Reddu'ch (£• roO, 1 Q. B: (92) 127 ; Gil. J. 4' B. 172 ; 66 L. T. 76^^ ^^^ Lawes, Be, 20 Ch. Div. 81 ; 45 L. T. 453 ; 30 W. R. 33 .. .. 132! 141 V. Bennett, 1 Cox 167 •;U o,/' ,. w t. or Voq V. Gibson, 1 Eq. 135 ; 11 Jur. N. S. 873 ; 13 L. T. 316 ; 14 W. R. 25 483 V. L., 9 Ch. D. 98 ; 38 L. T. 709 ; 27 W. R. 186 613 Lawr'an^., Be, 1 Ch.'(94) 5:6; 63L. J. Ch. 205 ; 70 L. T- 91 ; 42 W R. 265 V. NorreyX 15 App. 210; 59 L. J. Ch. 681; 62 L. '1. 706; 38 W. R. 753 ^•• e 2 430 81 Ixviii TABLE OF CASES. PAGE Lawrence V. L., 26 Ch. D. 795 598 V. Smith, Jac. 471 341 Lawrie v. Lees, 14 Ch. Div. 249 ; 49 L. J. Ch. 636 ; 42 L. T. 485 ; 28 W. R. 779 495 V. , 7 App. 19 ; 51 L. J. Ch. 209 ; 46 L. T. 210 ; 30 W. R. 185 495, 537 Lawton v. Ford, 2 Eq. 97 ; 14 L. T. 320 ; 14 W. R. 575 433 Layard v. Maud, 4 Eq. 397 ; 36 L. J. Ch. 669 ; 16 L. T. 618 ; 15 W. R. 897 410 Lazarus v. Artistic Photographic Co., 2 Ch. (97) 214 ; 66 L. J. Ch. 522 ; 76 L. T. 457; 45 W. R. 614 314 Lea, Be, 34 Ch. D. 528 ; 56 L. J. Ch. 671 ; 56 L. T. 482 ; 35 W. R. 572 „ 8 V. Whitaker, L. R. 8 C. P. 7C ; 27 L. T. 676 .; 21 W. R. 230 .. .. 260 Leak v. Driffield, 24 Q. B. D. 98 ; 59 L. J. Q. B. 89 ; 61 L. T. 771 ; 38 W. R. 93 233 Learoyd v. Whiteley, 12 App. 727; 57 L. J. Ch. 390; 58 L. T. 93; 36W. R. 721 43,44,50 Leary V. Shout, 33 B. 582 622 Leathes v. L., 5 Ch. D. 221 ; 46 L. J. Ch. 562 ; 36 L. T. 646 ; 25 W. R. 492 52 Lechmere V. L., Ca. temp. Talb. 80 .. .. .. .. 156,157,158 Lee V. Cox, 3 Atk. 419 159,161 V. Haley, 5 Ch. 155 ; 39 L. J. Ch. 284 ; 22 L. T. 258 ; 18 W. R. 242, 282, 337, 338 V. L., 4 Ch. D. 175 ; 46 L. J. Ch. 81 ; 36 L. T. 138 ; 25 W. R. 225 .. 159 ?;. Pain, 4 Ha. 201 151,152 V. Sankey, 15 Eq. 204; 27 L. T. 809 ; 21 W. R. 286 .. .. 48, 59 Leech v. Schweder, 9 Ch. 463 ; 43 L. J. Ch. 487 ; 30 L. T. 586 ; 22 W. R. 633 287, 314, 316 Leeds &c. Co. V. Horsfail, 33 S. J. 183 297 Theatre v. Broadbent, 1 Ch. (98) 343 ; 67 L. J. Ch. 135 ; 77 L. T. 665 ; 46W. H. 230 404 Lees V. Coulton, 20 Eq. 20 ; 44 L. J. Ch. 556 ; 23 W. R. 544 .. 363, 368 V. Fisher, 22 Ch. Div. 283 ; 31 W. R. 94 385, 441, 444 Leeson v. Medical Council, 43 Ch. Div. 366 ; 59 L. J. Ch. 233 ; 61 L. T. 849 ; 38 W. R. 303 287 Leegott V. Met. Ry. Co., 5 Ch. 716 ; 18 W. R. 1060 483 Lehmann v. Mc Arthur, 3 Ch. 496; 37 L. J. Ch. 625; 18 L. T. 806; 16 W. R. 877 464, 478 Leitih, Be, 40 Ch. Div. 290 ; 58 L. J. Ch. 306 ; 60 L. T. 404 ; 37 W. R. 241 255 V. Burnett, 'Z9 Ch. D. 231 ; 54 L. J. Ch. 757 ; 52 L. T. 458 ; 33 W. R. 578 ' .. 398 V. Dickeson, 15 Q. B. Div. 60; 54 L. J. Q. B. 18; 52 L. T. 790; 33 W. R. 538 362 V. L., 55 L. T. 634 ; 35 W. R. 121 42 Leighton v. L., 18 1 q. 458 ; 43 L. J. Ch. 594 ; 22 W. R. 727 .. 139, 142 Le Lievre v. Gould, 1 Q. B. (93) 491 ; 62 L. J. Q. B. 353 ; 68 L. T. 626 ; 41 W. R. 468 513 Le Marchant v. Le M., 18 Eq. 414 ; 22 W. R. 839 9 Lenimon v. Wei b, A. C. (95) 1 ; 64 L. J Ch. 205 ; 71 L. T. 647 .. .. 311 Le Neve t;. Le K, Amb. 436 .. 414 Leng, Be, 1 Ch. (,95) 652; 64 L. J. Ch. 468 ; 72 L. T. 407; 43 W. R. 406 191 229 Leonard, Be, 29 W. R. 234 ; 43 L. T. 664 .. 54, 56 t;. Sussex (E. oO, 2 Vern. 526 29 Leonino v. L., 10 Ch. D. 460 ; 48 L. J. Ch. 217 ; 40 L. T. 359 ; 27 W. R. 388 188, 190 Lepine, Be, 1 Ch. (92) 210; 61 L. J. Ch. 153; 66 L. T. 360 .. .. 211, 214 Leslie, Be, 23 Ch. D. 552 ; 52 L. J. Ch. 762 ; 48 L. T. 564 ; 31 W. R. 561 .. 431 i;.Yoim£;, A. 0.(94)335.. .. 346 TABLE OF CASES. Ixix PAGE Lester v. Foscroft, 1 Colles P. C. 108 458 Letterstedt v. Broers, 9 App. 371 ; 53 L. J. P. C. 44; 51 L. T. 169 .. .. 63 Letts V. Hutchius, 13 Eq. 176 406 Lever, Be, 1 Ch. (97) 32 ; 66 L. ,1. Ch. 66 ; 75 L.T. 383 ; 45 W. E. 172 47, 54 , Be, 76 L. T. 71 54 y. Goodwin, W. N. (87) 107 535 Levy V. Creighton, 22 W. R. 436 27 V. Rutley, L. R. 6. C. P. 523 ; 40 L. J. C. P. 244 ; 24 L. T. 621 ; 19 W. R. 976 349 V. Stogdon, 1 Ch. (98) 478 ; 78 L. T. 185 ; 67 L. J. Ch. 313 .. .. 461 472, 490 Lewin V. Wilson, 11 App. 639 ; 55 L. J. P. C. 75 ; 55 L. T. 410 .. .. 435 Lewis, Be, 30 Cb. D. 654 ; 55 L. J. Ch. 232 ; 53 L. T. 387 ; 34 W. R. 150 .. 94 104, 105 V. Brass, 3 Q. B. D. 667 ; 37 L. T. 738 ; 26 W. R. 152 .. .. 455 v. Hillman, 3 H. L. C. 607 544 V. James, 32 Ch. Div. 326 ; 56 L. J. Ch. 163 ; 54 L. T. 260 ; 34 W. R. 619 499 V. L., 13 Eq. 218 ; 41 L. J. Ch. 196 ; 25 L. T. 555 ; 20 W. R. 141 .. 191 • V. Stephenson, 78 L. T. 165 ; 67 L. J. Q. B. 296 76, 477 L'Herminier, Be, 1 Ch. (94) 675 ; 63 L. J. Ch. 496 ; 70 L. T. 727 .. .. 179 Licensed &c. Co. v. Bingham, 38 Ch. Div. 139 ; 58 L. J. Ch. 36 ; 59 L. T. 187 ; 36 W. R. 433 342 Lidiard, Be, 42 Ch. D. 254; 58 L. J. Ch. 785 ; 61 L. T. 322 ; 37 W. R. 793 479 Life Association &c. V. Siddal, 3 D. F. & J. 58 531 &c. Corpn. v. Hand &c. Society, 2 Ch. (98) 230 379,485 Lightfoot V. Heron, 3 Y. & C. Ex. 586 473 Liles V. Terry, 2 Q. B. (95) 679 ; 65 L. J. Q. B. 34 ; 73 L. T. 428 ; 44 W. R. 116 524 Limpus V. Arnold, 15 Q. B. Div. 300 ; 54 L. J. Q. B. 85 ; 33 W. R. 537 .. 140 Lindsay &c. Co. v. Hurd, L. R. 5 P. C. 221 ; 22 W. R. 492 .. 80, 510, 532, 533 Linoleum &c. Co. v. Nairn, 7 Ch. D. 834; 47 L. J. Ch. 430; 38 L. T. 448; 26 W. R. 463 337 Lippaid V. Ricketts, 14 Eq. 291 ; 41 L. J. Ch. 595 ; 20 W. R. 898 .. .. 384 Liquidation &c. Co. v. Willoughby, A. C. (98) 321 ; 67 L. J. Ch. 251 ; 78 L.T. 329 406 List V. Tharp, 1 Ch. (97) 260 ; 66 L. J. Ch. 175 ; 76 L. T. 45 ; 45 W. R. 243 299 Lister v. Hodgson, 4 Eq. 30; 15 W. R. 547 519 V. Stubbs, 45 Ch. Div. 1 ; 59 L. J. Ch. 570 ; 63 L. T. 75 ; 38 W. R. 548 35, 71, 526 Litchfield v. Jones, 36 Ch. D. 530 ; 57 J. Ch. 100 ; 58 L. T. 20 ; 36 W. R. 397 77 Little, Be, 36 Ch. Div. 701 ; 56 L. J. Ch. 872 ; 57 L. T. 583 ; 40 Ch. Div. 418 ; 58 L. J. Ch. 233 ; 60 L. T. 246 ; 37 W. R. 289 237 Liverpool &c. Act, Be, 5 Eq. 282 ; 37 L. J. Ch. 376 ; 16 W. R. 667 .. .. 480 &c. Assn. V. Commercial &c. Bureaux, 2 Q. B. (97) 1 ; 66 L. J. Q. B. 405 ; 76 L. T. 292 344 V. Smith, 37 Ch. Div. 170 ; 57 L. J. Ch. 85 ; 57 L. T. 770 ; 58L. T. 204; 36 W. R. 485 320 Livesey V. L., 3 Russ. 287 214 Llewellin, Be, 37 Cti. D. 317 ; 57 L. J. Ch. 316 ; 58 L. T. 152 ; 36 W. R. 347 306 , Be, 3 Ch. (91) 145 ; 60 L. J. Ch. 732 ; 65 L. T. 249 ; 39 W. K. 713 431 Lloyd, i?e, 12 Ch. Div. 447 ; 41 L. T. 171 ; 28 W. R. 8 632 , Be, 9 P. D. 65 ; 53 L. J. P. 48 ; 32 W. R. 724 86 V. Collett, 4 Bro. C. C. 469 ; 4 Ves. 689 n 461 V. Nowell, 2 Ch. (95) 744 ; 04 L. J. Ch. 744 ; 73 L. T. 154 ; 44 \V. R. 43 456 Ixx TABLE OF CASES. PAGE Lloyds V. Harper, 16 Ch. Div. 290; 50 L. J. Ch. 140 ; 43 L. T. 481 ; 29 W, R. 452 571,572,580 Bk. V. Bullock, 2 Ch. (96) 192; 65 L. J. Ch. 680; 74 L. T. 687 ; 44W. R. 633 409,413 &c. Co. V. Jones, 29 Ch. D. 221 ; 54 L. J. Ch. 931 ; 52 L. T. 469 ; 33 W. R. 781 51,72,76,408 Luch V. Bagley, 4 Eq. 122 29 Lock V, Pearce, 2 Ch. (93) 271 ; 62 L. J. Ch. 582 ; 68 L. T. 569 ; 41 W. R. 369 272, 274 Lockhart v. Hardy, 9 B. 349 421 V. Reilly, 1 D. & J. 464 62 Loder, Re, 56 L. J. Ch. 230 ; 55 L. T. 582 ; 35 W. R. 58 420 Lofthouse, Re, 29 Ch. Div. 921 ; 54 L. J. Ch. 1087 ; 53 L. T. 174 ; 33 W. R. 668 247,251,252 V. Brown, W. N. (98) 52 518 Loftus, Re, 1 Ch. (94; 193 ; 63 L. J. Ch. 52 ; 69 L. T. 690 ; 42 W. R. 251 330, 334 London & N. W. Ry. Co. v. Evans, 1 Ch. (93) 16 ; 62 L. J. Ch. 1 ; 67 L. T. ■ 630 ; 41 W. R. 149 300 Assn. of Shipowners v. London &c. Committee, 3 Ch. (92) 242 ; 62 L. J. Ch. 294 ; 67 L. T. 238 310 B. & S. C. Ry. Co. V. Truman, 11 App. 45 ; 55 L. J. Ch. 354 ; 54 L. T. 250 ; 34 W. R. 657 311 &c. Assn. V. Clarke, 20 Q. B. Div. 576 ; 57 L. J. Q. B. 291 ; 59 L. T. 93 ; 36 W. R. 489 451 &c. Bank v. Lempriere, L. R. 4 P. C. 572 ; 42 L. J. P. C. 49 ; 29 L. T. 186 ; 21 W. R. 513 227,234,535,551 V. Liverpool (Bank oQ &c., 1 Q. B. (96) 7 ; 73 L. T. 473 .. 536 V. Simmons, A. C. (92) 201 ; 61 L. J. Ch. 723 ; 66 L. T. 625 ; 41W. R. 108 71,414,593 — &c. Co. V. Cox, 3 Ch. (91) 291 ; 60 L. J. Ch. 707 ; 65 L. T. 60 .. 344 V. Dugiian, A. C. (93) 506 ; 63 L. J. P. C. 14 73 V. Lewis, 21 Ch. D. 490 ; 47 L. T. 501 ; 31 W. R. 233 .. 385 V. Ratcliffe, 6 App. 722 ; 51 L. J. Ch. 28 ; 45 L. T. 322 ; 30 W. R. 109 489,956 V. Suffield (B), 2 Ch. (97) 608 ; 66 L. J. Q. B. 790 ; 77 L. T. 445 ; 46 W. R. 102 408 &c. Ry. Co., Re, 24 Q. B. Div. 326 ; 59 L. J. Q. B. 162 ; 62 L. T. 306 ; 38 W. R. 343 312 &c. Society v. Angell, 65 L. J. Q. B. 194 410 C. & D. Ry. Co. V. S. E. Ry. Co., 1 Ch. (92) 120 ; 61 L. J. Ch. 294; 65 L. T. 722 ; 40 W. R. 194; A. C. (93) 429 ; 63 L. J. Ch. 93 ; 69 L. T. 637 55 C. Council V. London Sch. Bd., 2 Q. B. (92) 606 ; 62 L. J. M. C. 30 ; 40 AV. R. 604 290 (Mayor of), Re, 2 Ch. (94) 524 ; 63 L. J. Ch. 580 ; 70 L. T. 719 .. 484 Long V. Crossley, 13 Ch. D. 388; 49 L. J. Ch. 168 ; 41 L. T. 793; 28 \V. R 226 482 V. Millar, 4 C. P. D. 450 ; 48 L. J. C. P. 596 ; 41 L. T. 306 ; 27 W. R. 720 455 Longbottom v. Woodhead, 83 L. T. Jo. 423 632 Looker V. Wrigley, 9 Q. B. D. 397 410 Lord, Re, 1 Ch. (96) 228 ; 65 L. J. Ch. 184; 73 L. T. 689 ; 44 W. R. 195 .. 37 w. L., 2 Ch. 782 ; 36 L. J. Ch. 533 196 Loring v. Davis, 32 Ch. D. 625 ; 55 L. J.Ch. 725 ; 54 L. T. 899; 34 W. R. 701 451 Lound V. Grimwade, 39 Ch. D. 605 ; 57 L. J. Ch. 725 ; 59 L. T. 168 .. 504 TABLE OF CASES. Ixxi PAGE Lovell V. Beauchamp, A. C. (94) 607 ; 63 L. J. Q. B. 802 ; 71 L. T. 587 ; 43 W. R. 129 518,616 Lovesy v. Smith, 15 Ch. D. 655 ; 49 L. J. Ch. 809 ; 43 L. T. 240 ; 28 W. 11. 979 .. .. .. .. .. .. .. .. .. 530 541 Lovett V. L.,' 1 Ch. (98) 82 • 67 lVj. Ch".'20; 77 L. T."650; 46 W. R. 105 'l63, 412, 512, 539 Low, He, 1 Ch. (94) 147 ; 63 L. J. Ch. 60 ; 70 L. T. 57 284 V. Buuverie, 3 Ch. (91) 82 ; 60 L. J. Ch. 594 ; 65 L. T. 533 ; 40 W. R. 50 53, 398, 416 V. Ward, 6 Eq. 415 ; 37 L. J. Ch. 841 ; 16 W. R. 1114 344 Lowe V. DixoD, 16 Q. B. D. 455 ; 34 W. R. 441 570, 575 Lowis V. Rumney, 4 Eq. 451 .. ,, .. .. .. ,. .. 215 Lowman, Re, 2 Ch. (95) 348 ; 64 L. J. Ch. 567 ; 72 L. T. 816 .. ..57 Lowndes, Re, 18 Q. B. D. 677 ; 56 L. J. Q. B. 425 ; 56 L. T. 575 ; 35 W. R. 549 .. .. .. .. .. .. .. . 23 V. Bettle, 33 L. J! Ch. 451 ; 4 N. R. 609 .'.* .V .'.* 296, 300 V. Norton, 6 Ch. D. 139 ; 46 L. J. Ch. 613 ; 25 W. R. 826 305, 306 Lowther v. Heaver, 41 Ch. Div. 248 ; 58 L. J. Ch. 482 ; 60 L. T. 310 ; 37 W. R. 465 462,464,596 Lubbock V. British Bk. of S. America, 2 Ch. (92) 198 ; 61 L. J. Ch. 498 ; 67 L. T. 74 ; 41 W. R. 103 627 Lucan (E. of). Re, 45 Ch. D. 470 ; 60 L. J. Cb. 40 ; 63 L. T. 538 ; 39 W. E. 90 14 Lucas w. Cooke, 13 Ch. D. 872 ; 42 L. T. 180; 28 W. R. 439 350 V. Jones, 4 Eq. 73 ; 36 L. J. Ch. 602; 15 W. R. 738 97 Luddy V. Peard, 33 I'h. D. 500 ; 55 L. J. Ch. 884 ; 55 L. T. 137 ; 35 W. R. 44 35, 523 Luke V. South &c. Co., 11 Ch. Div. 121 ; 48 L. J. Ch. 361 ; 40 L. T. 638 ; 27 W. R. 514 438 Lumley, Re, 3 Ch. (94) 135 ; 63 L. J. Ch. 897 ; 71 L. T. 7 ; 42 W. R. 633 .. 227 , Re, 2 Ch. (96) 690; 65 L. J. Ch. 887 ; 75 L. T. 236 ; 45 W. H. 1*7 225 V. Ravenscroft, 1 Q. B. (95) 683 ; 64 L. J. Q. B. 441 ; 72 L. T. 382 ; 43 W. R. 584 454 V. Wagner, 1 D. M. & G. 604 295 Lush, Re, 4 Ch. 591 ; 38 L. J. Ch. 650 ; 21 L. T. 376 ; 17 W. R. 974 .. 230 Lydney &c. Co. v. Bird, 33 Ch. Div. 85; 55 L. J. Ch. 875 ; 55 L. T. 558; 34W. R. 749 526,610 Lyell V. Kennedy, 14 App. 437 ; 59 L. J. Q. B. 268 ; 62 L. T. 77 ; 38 W. R. 353 66,83 Lyude v. Anglo-Italian &c. Co., 1 Ch. (96) 178 ; 73 L. T. 502 .. .. 515 V. Waithman, 2 Q. B. (95) 180 ; 64 L. J. Q. B. 762 ; 72 L. T. 857 .. 421 Lynes, Re, 2 Q. B. (93) 113 ; 62 L. J. Q. B. 372 ; 68 L. T. 739 ; 41 W. R. 488 233 Lyon V. Home, 6 Eq. 655 ; 37 L. J. Ch. 674 ; 18 L. T. 451 ; 16 W. R. 824 .. 522 ■ V. Tweddell, 17 Ch. Div. 529 ; 50 L. J. Ch. 571 ; 44 L. T. 785 ; 29 W. R. 689 625,636 Lyons v. Wilkins, 1 Ch. (96) 811 ; 65 L. J. Ch. 601 ; 74 L. T. 358 ; 45 W. R. 19 ; S. C. on trial, 67 L. J. Ch. 383 ; 78 L. T. 618 ; 46 W. R. 461 .. 321 Lysaght, i?e, 1 Ch. (98) 115 598 V. Edwards, 2 Ch. D. 499 ; 45 L. J. Ch. 554 ; 34 L. T. 787 ; 24W. R. 778 492 Mabbett, Re, 1 Ch. (91) 707 ; 60 L. J. Ch. 279 ; 64 L. T. 447 ; 39 W. R. 537 200, 201 Maberly, Re, 33 Ch. D. 455 ; 56 L. J. Ch. 54 ; 55 L. T. 164 ; 34 W. R. 771 42, 43 Macana v. Borradaile, 37 L. J. Ch. 124 ; 17 L. T. 298 ; 16 W. R. 175 .. 236 Ixxii TABLE OF CASES. PAGE McRlain w. Cross, 25 L. T. 804 455 McCaroglierv. Whieldon, 3 Eq. 2^6 139 McClatchie v. Haslam, 65 L. T. 691 10 McClean v. Kemiard, 9 Ch. 336 ; 43 L. J. Ch. 323 ; 30 L. T. 186 ; 22 W. H. 382 628 IVlacdonald, Re, 2 Ch, (97) 181 ; 66 L. J. Ch. 630 ; 76 L. T. 713 ; 45 W. R. 628 199 . V. Irvine, 8 Ch. Div. 101 ; 47 L. J. Ch. 494 ; 38 L. T. 155 26 W. R. 381 54, 192, 193 V. Whitfield, 8 App. 733 ; 52 L. J. P. C. 70; 49 L. T. 446 ; 32 W. R. 730 573,576 Macduff, Re, 2 Ch. (96) 451 ; 65 L. J. Ch. 700 ; 74 L. T. 706 ; 45 W. R. 154 8 Mace, Re, VV. K (87) 232, 238 64 McEwan v. Crombie, 25 Ch. D, 175 ; 53 L. J. Ch. 24 ; 49 L. T. 499 ; 32 W. R. 115 66 M'Fadden i;. Jenkyns, 1 Ph. 153 12,15 Macfarlaiie v. Lister, 37 Ch. D. 88 ; 57 L. J. Ch. 92 ; 58 L. T. 201 .. 428, 429 V. Lord Advocate, A. C. (94) 291 93 Macfie V. Callander «&c. Ry. Co., A. C. (98) 270 ; 67 L. J. P. C. 58 ; 78 L. T. 598 479 McGrath, Re, 1 Ch. (93) 143 ; 62 L. J. Ch. 208 ; 67 L. T. 636 ; 41 W. R. 97 238, 241, 242 McGregor v. M., 21 Q. B. Div. 424 ; 57 L. J. Q. B. 591 ; 37 W. R. 45 .. 228 McGuffie V. Burlei-h, 78 L. T. 264 433 McHenrv, i?e, 21 Q. B. Div. 580 ; 36 W. R. 725 4«1 -, Re, 3 Ch. (94) 365; 64 L. J. Ch. 13 ; 71 L. T. 502 .. .. 10 V. Lewis, 22 Ch. Div. 397 ; 52 L. J. Ch. 325 ; 47 L. T. 549 ; 31 W. R. 305 283,284 Maclv V. Postle, 2 Ch. (94) 449 ; 63 L. J. Ch. 593 ; 71 L. T. 153 .. .. 417 Mackay v. Douglas, 14 Eq. 106 ; 41 L. J. Ch. 539 ; 26 L. T. 721 ; 20 W. R. 652 20 Mackenzie v. Childers, 43 Ch. D. 265 ; 59 L. J. Ch. 188 ; 62 L. T. 98 ; 38W. R. 243 289,290 McKenzie v. Hesketh, 7 Ch. D. 675; 47 L. J. Ch. 231; 38 L. T. ]71; 26 VV. R. 1S9 468,473 Mackenzie V. M., 2 Russ. 262 150 V. Robinson, 3 Atk. 559 403 McKeown v. Boudard &c. Co., 65 L. J. Ch. 735 ; 74 L. T. 712 ; 45 W. R. 152 515 Mackett v. M., 14 Kq. 49 ; 41 L. J. Ch. 704 ; 20 W. R. 860 9 Mackintosh, Re, 13 Q. B. D. 235 ; 51 L. T. 208 ; 33 W. R. 140 .. .. 285 V. Pogose, 1 Ch. (95) 505 ; 64 L. J. Ch. 274 ; 72 L. T. 251 ; 43W. R. 247 23,2z9 Mackieth v. iSymmons, 15 Ves. 329 489 Macleod v. Jones, 24 Ch. D. 289 ; 53 L. J. Ch. 145 ; 49 L. T. 321 ; 32 W. R. 43 397 i;. Power, 2 Ch. (98) 295 609 McManus v. Cooke, 35 Ch. D. 681; 56 L. J. Ch. 662; 56 L. T. 900; 35W.R.754 312,454 McMurray v. tSpicer, 5 Eq. 527 ; 37 L. J. Ch. 505 ; 16 W. R. 332 463, 464, 496 M'Myn, Re, 33 Ch. D. 575 ; 55 L. J. Ch. 845 ; 35 W. R. 179 .. .. 171, 578 M'Nab V. Robertson, A. C. (97) 129 ; 66 L. J. P. C. 27 ; 75 L. T. 666 .. 312 McPherson v. Watt, 3 App. 254 523 M'Queen v. Farquhar, 11 Ves. 467 568 McRae, /i-e, 25 Ch. D. 16 ; 32 W. R. 304 608 Maddever, Re, 27 Ch. D. 523 ; 53 L. J. Ch. 998 ; 52 L. T. 35 ; 33 W. R. 286 21 Maddison v. Alderson, 8 App. 467 ; 52 L. J. Q. B. 737 ; 49 L. T. 303 ; 31W. R. 820 27,458,459 V. Chapman, IJ. & H. 470 116 TABLE OF CASES. Ixxiii PAGE Mad-wick ^. Wimble, 6 B. 495 .. .. .. •' •' ,^ t'V Afif.^' ^^^ Magdalen Hospital v. Knotts, 4 App. 324; 48 L. J. Ch. 5/9; 40 L. 1. 466, ^^^ Mage'e'rWlfL. R. 9C. P. 107; 43 L. J. C. R 131;' 30 l/'t. 169; 22W. E. 334. ^"^-^ Mac^gi Magnolia Magnus v. Queensland &c. Bank, 37 (JH. JJiv. 4Ub ; ot l.. o. vn. -±±0 , uu ^. -. 248 ; 36 W. K. 577 ., t" t nv:' -.oa " " 9c, Masrath^;. Morehead, 12 Eq. 491 ; 24 L. T. 868 ; 41 L J Ch 120 .. 29 Mainland v. Upjohn, 41 Ch. D. 126; 58 L. J. Ch. 361; 60 L. T. 614 Malam, Re, 3*Ch. (94) 578;* 63 L.'j. Ch."797 ; 71 K T. 655 . .. •• &5 Manchester &c. Co., i?e, 14 Ch. Div. H45 ; 49 L J Ch. 365 ; 42 L T. ^4 V. Can-, 5 C. P. D. 507; 49 L. J. C.P. 809 ; 43 L.l. 4<6 ; 29 W R 354 "v. North Cheshire &c. Co., 1 Ch. (98) 539 ; 67 L. J. Ch. 633 302 336 351 ; 78 L. T. 537 ; 46 W. R. 515 .. .. - -- L. Royal Infirmary, Ee, 43 Ch. D. 420 ; 59 L. J. Ch. 3<0 ; 62 L. 1. 419; 38 W. R. 460 Jf &c. Hy. Co., i?e, 19 B. 365 °^ i;. Anderson, 2 Ch. (98) 394 .. .. •■ '' 2^)0 V. North &c. Co., 13 App. 554; 58 L. J. Ch. 219; 388 59 L. T. 730 ; 37 W. R. 305 .. .. •• . „ _„ .„ . rp Trust V. Furness, 2 Q. B. (95) 539 ; 64 L. J. Q. B. < 66 ; < 3 L. T. 110; 44W. R. 178 .. ^ gj^ Mangles V. Dixon, 3 H. L. C. 702 .. .. •• •• •• •• Mann ^. Edinburgh &c. Co., A. C. (93) 69; 62 L. J. P. C. 74 ; 68 L. i- 96 .. 36 . v. Fuller, Kav 624 ^ •• ^ -• oV w p Manners (Lord) ^. Johnson, 1 Ch. D. 673; 45 L. J. Ch. 404; 24 W. R.^^ ^^^ ^^.M;w.29*Ch.DV725;'54L.J.Ch.9b9;53L T.84 " 72, 74! 409 V. Pearson, 1 Ch. (98) 581; 67 L. J. Ch. 304; 78 L. T. 432 ; 46 AV. R. 498 J^3 Manser V. Back, 6 Ha. 443 .. •• •• •• •• " " n,Q Mansfield V. «haw, 3 Madd. 100 .0 V m oon oq w p ew loq Manton v. Tabois, 30 Ch. D. 92 ; 54 L. J. Ch. 1008 ; 53 L T.289 ; 33 W B 832 193 Maple V. Junior &c. Stores, 21 Ch. Div. 369 ; 52 L. J. Ch. 67 ; 47 L. 1 . 589 ; ^^^ Mara^l.^^Browne, i* Ch. '(96) 199; 65' L. j'.' Ch. 225; 73 L. T. 638^^ ^^^ Marct! Je; 27 CkDiv. 166 ; 54 L. J. ClV. 143;-51 L T 380 ;' 32 W^ R. 941 ' 228 Margetts, Ee, 2 Ch. (96) 263 ; 65 L. J. Ch. 479 ; 74 L. T. 309 ; 44 W. R. 462 39 V. Barringer, 7 Sim. 482 '\^ ^^''nni " too Markwick v. Hardingham, 15 Ch. Div. 339 ; 43 L. T. 647 ; 29 W R. 361 432 Marlborough (D. of), Ee, 2 Ch. (94) 133 ; 63 L. J. Ch. 4^ ; rO L. 1. 314 ; 42 VV E 456 . •• •• •• •• " ' '—1 - V. Sartoris, 32 Ch. D. 616 ; 56 L. J. Ch. 70 ; 55 L. T. 506;35W. R. 55 ^^ ^^J Marler v. Tommas, 17 Eq. 8 ; 43 L. J. Ch. 73 ; 22 W. R. 25 . .. .. 555 Marris v. Ingraui, 13 Ch. D. 338 ; 49 L. J. Ch. 123 ; 41 L. T. 613 ; 2b W R 434. .. .. •• •• 1 1, 10, I J Marsden v. Kent, 5 Ch. Div.' 598 ; *46 L. J. Ch. 497; 37 L. T. 49 ; 25 W. R. 522 217 Mar.h. Ee, 24 Ch. Div. 11; 52 L. J. Ch. 189; 47 L. T. 471; 48 >f:p'^'j 31 W 11.239, 845 4 . Ratcson, 3 Sw. 689 196 V. N., 28 Ch. D. 674 ; 54 L. J. Ch. 598 ; 52 L. T. 422 ; 33 W. R. 505 72, 407, 417 V. Piercey, 4 Ch. D. 41 ; 46 L. J. Ch. 36 ; 35 L. T. 461 ; 25 W. R. 37 537 V. Rogers, 4 Bro. C. C. 393 461 Newmarch, Be, 9 Ch. Div. 12 ; 48 L. J. Ch. 28 ; 39 L. T. 146 ; 27 W. R. 104 188, 190 Newson v. Pender, 27 Ch. Div. 43 ; 52 L. T. 9 ; 33 W. R. 243 313, 315, 317 Newstend V. Seaiies, 1 Atk. 265 18 New's Trustee v. Huntinsi, 2 Q. B. (97) 19 ; 66 L. J. Q. B. 554; 76 L. T. 742; 45 W. R. 577 19,21 Newton, i?e. 9 App. 592 ; 52 L. T. 329 323 , Be, 1 Ch. (96) 740; 65 L. J. Ch. 641 ; 73 L. T. 692 ; 44 W. R. 470 240, 241, 242 , Be, 2 Q. B. (9«) 403 ; 65 L. J. Q. B. 686 ; 75 L. T. 144 ; 45 W. R. 63 536 v. Vauclier, 6 Ex. 859 325 Nicholson, Be, W. N. (95) 106 55 v. Brown, W. N. (97) 52 486 V. Smith, 22 Ch. D. 640 ; 52 L. J. Ch. 191 ; 47 L. T. 650 ; 31 W. R. 47 1 462 Nickels, Be, 1 Ch. (98) 630 ; 67 L. J. Ch. 406 ; 78 L. T. 379 ; 46 W. R. 422 211 Nicloson V. Wordsworth, 2 Sw. 365 .. .. .. .. .. ,. 38 Nicoll V. Penning, 19 Ch. D. 258 ; 51 L. J. Ch. 166 ; 45 L. T. 738 ; 30 W. R. 95 295 Nicols V. Pitman, 26 Ch. D. 374 ; 53 L. J. Ch. 552 ; 5u L. T. 254 ; 32 W. R. 631 349 Niemann v. N., 43 Ch. Div. 198 ; 59 L. J. Ch. 220 ; 62 L. T. 339 ; 38 W. R. 258 634 Nind V. Nineteenth &c. Societv, 2 Q. B. (94) 226 ; 63 L. J. Q. B. 636 ; 70 L. T. 831 ; 42 W. R. 481 271,274 Nives V. N., 15 Ch. D. 649 ; 49 L. J. Ch. 674 ; 42 L. T. 832 ; 29 W. R, 302 .. 489 Nixon, i?e, W. N. (H6) 191 426 Nobbs, ii-e, 2 Ch. (96)S30; 65L. J.Ch. 906; 75L. T. 309 391 Noble V. Edwardes, 5 Ch. Div. 378 ; 36 L. T. 312 ; 37 L. T. 7 .. 460, 485 Noel V. N., 13 Ch. 1). 510; 28 W. R. 720; 42 L. T. 352 236 Nordenfelt v. Maxim &c. Co., A. C. (94) 535 ; 63 L. J. Ch. 908 ; 71 L. T. 489 291, 292, 293, 294 Norman i;. Beaumont, W. N. (93) 45 423 Norringtun, i?e, 13Ch. Div. 654; 28 W. R. 711 54,217 Norris, Ex ixirte, 4 Ch. 280 ; 38 L. J. Bkv. 5 ; 19 L. T. 755 ; 17 W. R. 452 66, 80 , Ex parte, 17 Q. B. Div. 728 ; 56 L. J. Q. B. 93 ; 35 W. R. 19 .. 191 North V. Percival, 2 Ch. (98) 128 ; 67 L. J. Ch. 321 ; 78 L. T. 615 ; 46 W. R. 552 454 &c. Co. V. Jacques, 32 W. R. 283 ; 49 L. T. 659 .. .. 272, 275 E. Ry. Co. V. Martin, 2 Phill. 7r)8 586 L. Ry. Co. V. G. N. Ry. Co., 11 Q. B. Div. 30 ; 52 L. J. Q. B. 380 ; 48 L. t. 695 ; 31 W. R. 490 592 Western Bk. v. Povnter, A. C.<95) 56 ; 64 L. J. P. C. 27 ; 72 L. T. 93 381 Northen, Be, 28 Ch. D. 153 ; 54 L. J. Ch. 273 ; 52 L. T. 173 ; 33 W. R. 336 544 TABLE OF CASES. Ixxxi PAGE Northern &c. Co. v. Whipp, 26 Ch. Div. 482 ; 53 L. J. Ch, G29 ; 51 L. T. 800 : 32W. R. G26 72,408,409 Northumberland (D. of) v. BomHn, 56 L. T. 773 .. .. .. .. 2H2 Norton v. Counties &c. Sociefy, W. N. (94) 212 ' 411 V. Dash wood, 2 Ch. (96) 497 ; 65 L. J. Ch. 737 .. .. '.'. 381 V. Johnstone, 30 Cli. D. 649 ; 55 L. J. Ch. 222 ; 24 W. II. 13 .. 57 V. Eussell, 19 Eq. 343 ; 23 W. R. 252 637 Norwich &c. Charity, Ee, 40 Ch. D. 298 ; 60 L. T. 202 ; 37 W. R. 362 . 8 Notia^e, i?e, 2 Ch. (95) 649 ; 64 L. J. Ch. 701 ; 73 L. T. 269 ; 44 W. R. 25 8 , Be (No. 2), 2 Ch. (95) 657 ; 64 L. J. Ch. 695 :" 73 L. T. 265 ; 44 W. R. 22 192 Nottinsihatu &c. Co. v. Bottrill, L. R. 8 C. P. 694 ; 42 L. J. C. P. 256; 29 L. T. 134; 21 W. R. 739 580 V. Butler, 16 Q. B. Div. 778 ; 55 L. J. Q. B. 280 ; 54L. T. 444; 34W. R. 405 289,467,472,478,497 NovosieLsi Qdarteumaine's Case, 1 Ch. (92) 639 ; 61 L. J. Ch. 273 ; 66 L. T. 19 ; 40 W. R. 298 .. 191 Queensland Sec. Co., Re, 3 Ch. (94) 181; 63 L, J. Ch. 810; 71 L. T. 115; 42W. 11. 600 383, 41'^ Quenerdiiaine v. Cole, 32 W. R. 185 455 Badcliffe, Be, 22 B. 201 446 , Be, 1 Ch. (92) 227 ; 61 L. J. Ch. 186 ; 66 L. T. 363 ; 40 W. R. 323 567 Rae v. Meek, 14 App. 558 45,50 Raffety v. Schofield, I Ch. (97) 937 ; 66 L. J. Ch. 448 ; 76 L. T. 648 ; 45 W. R. 460 462 Rasgett, Be, 16 Ch. Div. 117 ; 50 L. J. Ch. 187 ; 44 L. T. 4 ; 29 W. R. 314 392 Rainbow v. Juggins, 5 Q. B. Div. 422; 49 L. J. Q. B. 718; 43 L. T. 346; 29 W. R. 130 583 Ralei-h v. Goschen, 1 Ch (98) 73 ; 67 L. J. Ch. 59 ; 77 L. T. 429 ; 46 W. R. 90 298 Ralph, Re, 25 Ch. D. 194 ; 53 L. J. Ch. 188 ; 49 L. T. 504 ; 32 W. R. 168. . 332, 337. Ramsbotham v. Senior, 8 Eq. 575 ; 21 L. T. 293 ; 17 W. R. 1057 .. .. 256 Ramsdtn v. Dyson, L. R. 1 H. L. 129 ; 12 Jur. N. S. 506 ; 14 W. R. 926 .. 459 Ramuz V. Crowe, 1 Ex. 167 .. 548 Ranela^h, Be, 26 Ch. D. 590 ; 53 L. J. Ch. 689 ; 51 L. T. 87 ; 32 W. R. 714 35 V. Melton, 2 Dr. & Sm. 278 462 Ranken v. Allara, 5 Ch. Div. 786 ; 46 L. J. Ch. 832 ; 36 L. T. 529 .. .. 600 Rapier v. Loudon Tramways Co,. 2 Ch. (93) 588 ; 63 L. J. Ch. 36 ; 69 L. T. 361 311 Eatcliff, i?e, 2 Ch. (98) 352 68 Ratcliffe v. Barnard, 6 Ch. 652 ; 40 L. J. Ch. 777 ; 19 W. R. 764 .. .. 409 ■ V. Evans, 2 Q. B. (92) 524 ; 61 L. J. Q. B. 535 ; 66 L. T. 794 ; 40 W. R. 578 320 Raw, Be, 26 Ch. D. 601 ; 53 L. J. Ch. 1050; 51 L. T. 282 ; 32 W. R. 986 88, 90, 94 Rawlins V. Wickham, 3 D. & J. 304 510,533 Rawlinson V. Miller, 1 Ch. D. 52 ; 46 L. J. Ch. 252 369 Rayner v. Condor, 2 Q. B. (95) 289 ; 64 L. J. Q. B. 540; 73 L. T. 96 .. 259 • V. Preston, 18 Ch. Div. 1; 50 L. J. Ch. 472; 44 L. T. 787; 29W. R. 546 480,547 Rebbeck, Be, 63 L. J. Ch. 596 ; 71 L. T. 74; 42 W. R. 473 178 Redgrave v. Hurd, 20 Ch. Div. 1 ; 51 L. J. Ch. 113 ; 45 L. T. 485 ; 30W. R. 251 456,486,510,513 Redmayne v. Forster, 2 Eq. 467 ; 35 L. J. Ch. 847 ; 14 W. R. 825 .. .. 438 Reed v. Norris, 2 My. & Cr. 361 582 Bees, Be, 17 Ch. D. 701 ; 50 L. J. Ch. 328 ; 44 L. T. 241 ; 29 W. R. 301 .. 140 V. De Bemardy, 2 Ch. (96) 437 ; 65 L. J. Ch. 656 ; 74 L. T. 585 .. 505, 519, 530 . V. Metropolitan Board of Works, 14 Ch. D. 372 ; 49 L. J. Ch. 620 ; 42 L. T. 685 ; 28 W. R. 614 447 TABLE OF CASES. Ixxxix PAGE Reese &c. Co. v. Smith, L. R. 4 H. L. 64 ; 39 L. J. Ch. 849 515 Reeve, He, 4 Ch. D. 841 ; 40 L. J. Ch. 412 ; 36 L. T. 906 ; 25 W. R. 628 .. 194 V. Berridge, 20 Q. B. Div. 523 ; 57 L. J. Q. B. 265 ; 58 L. T. 836 ; 36 W. R. 517 477 Reeves V. Brymer, 6 Ves. 425 248 Reg. V. Andover (JJ. of), 16 Q. B. D. 711 ; 55 L. J. M. C. 143 ; 55 L. T. 23 ; 34 W.R. 456 461 V. Gvngall, 2 Q. B. (93) 232 ; 62 L. J. Q. B. 559 ; 69 L. T. 481 .. .. 239 V. Hughes, 2 Q. B. (93) 530 ; 62 L. J. M. C. 150 ; 42 W. R. 94 .. .. 461 V. Lincolnshire C. C. (J. of), 20 Q. B. D. 167 ; 57 L. J. Q. B. 136 ; 53 L. T. 54 ; 36 W. R. 174 23 V. Nash, 10 Q. B. Div. 454; 52 L. J. Q. B. 442; 48 L. T. 447; 31 W.R. 420 238 V. Vice-Registrar of Land Registry Office, 24 Q. B. D. 178 ; 59 L. J. Q. B. 113; 62 L. T. 117; 38 W.R. 236 479 Rehden V. Wesley, 29 B. 213 61 Reichardt V. Sapte, 2 Q. B. (93) 308 349 Reichel v. Bishop of Oxford, 35 Ch. Div. 48 ; 56 L. J. Ch. 1023 ; 56 L. T. 539 ; 14 App. 259 ; 59 L. J. Ch. 66 ; 61 L. T. 131 455 Reid V. R., 31 Ch. Div. 402 ; 55 L. J. Ch. 294 ; 54 L. T. 100 ; 34 W. R. 332 235 V, _„ 33 Ch. D. 220 ; 55 L. J. Ch. 756 ; 55 L. T. 153 ; 34 W. R. 715 .. 221 Reinhardt v. Mentasti, 42 Ch. D. 685 ; 58 L. J. Ch. 787 ; 61 L. T. 328 ; 38 W. R. 10 310, 311 Renner V. ToUey, 68 L. T. 815 394,489 Reynolds, Ex parte, 5 Ves. 707 .. .. .. .. .. .. .. 529 , i?e, 3 Ch. Div. 61 ; 35 L. T. 293 ; 24 W. R. 991 92 Rhodes v. Bate, 1 Ch. 252; 35 L. J. Ch. 267; 12 Jur. N. S. 178; 13 L. T. 778 ; 14 W. R. 292 522 v. Monies, 1 Ch. (95)236; 64 L.J. Ch. 122 610 Rice V. R., 2 Drew 73 410,413,489 Ricliards, i?e, 36 Ch. D. 541 ; 56 L. J. Ch. 923 ; 57 L. T. 249 ; 36 W. R. 118 12, 15 , He, 45 Ch. D. 589 ; 59 L. J. Ch. 728 ; 63 L. T. 451 .. 66, 413 V. Butcher, 2 Ch. (91) 522 ; 60 L. J. Ch. 530 329 -y. Delbridge,18Eq.ll;43L.J.Ch.495;22W.R.584 .. 11,12,15 V. Kidderminster (Overseers of), 2 Ch. (96) 212 ; 65 L. J. Ch. 502 ; 74 L. T. 483 ; 44 W. R. 505 171,381 Richardson, Be, 30 Ch. Div. 396 ; 55 L. J. Ch. 741 ; 53 L. T. 746 ; 34 W. R. 286 11, 206,382 V. Feary, 39 Ch. D. 45 ; 57 L. J. Ch. 1049 ; 59 L. T. 165 ; 36W. R. 807 300,369 V. Methley School Board, 3 Ch. (93) 510; 62 L. J. Ch. 943; 69 L. T. 308 ; 42 W. R. 27 285 v. R., 3 Eq. 686 ; 36 L. J. Ch. 653 15 V. Smith, 5 Ch. 648 ; 39 L. J. Ch. 881 ; 19 AV. R. 81 .. .. 471 V. Younge, 6 Ch. 478 ; 40 L. J. Ch. 338 ; 25 L. T. 230 ; 19 W. R. 612 .. 432 Richerson, Be, 1 Ch. (92) 379 ; 61 L. J. Ch. 202 ; 66 L. T. 174 ; 40 W. R. 233 31 Richmond v. White, 12 Ch. Div. 361 ; 48 L. J. Ch. 798 ; 41 L. T. 570 ; 27 W.R. 878 181 Rickettsv. Lewis, 20 Ch. D. 745: 51 L. J. Ch. 837; 46 L. T. 368; 30 W.R. 609 210 V. R., 64 L. T. 263 67 ■ V. — , W. N. (91) 29 417,429 Ridgway, Be, 15 Q. B. D. 447 ; 54 L. J. Q. B. 570 ; 34 W. R. 80 .. .. 14 • V. Wharton, 6 H. L. C. 238 454 XC TABLE OF CASES. PAGE Ridlcr, Re, 22 Ch. Div. 74 ; 52 L. J. Ch. 348 ; 48 L. T. 39G ; 31 W. R. 93 .. 27 Pu-^hy V. Bennett, 21 Ch. Div. 559; 40 I.. T. 47 ; 31 W. K. 222 .. .. 300 ]{iley, Pit, 34 Cli. D. 38G; 5(5 L. J. Ch. 442; 56 L. T. 48 ; 35 W. R. 470 .. 484 V. Hall, W. N. (98) 81; 79 L. T. 244 392 Kiiuingt..n v. Hartley, 14 Ch. D. (530; 43 L. T. 15; 29 W. R. 42 .. .. 3H7 KipKy, itV, 78 L. T. 3G7 334 V. Sawyer, 31 Ch. D. 494 ; 55 L. J. Ch. 407 ; 54 L. T. 294 ; 34 W. R. 270 3(i9 Rihhton V. Grissell, 5 Kq. 32G G05 V. , 10 Kq. 393; 18 W. R. 821 52 Ritsun, Re, 1 Cli. (98) GG7; G7 L. J. Ch. 3G5; AQ W. R. 478 .. ., 188 Ruach V. Trood, 3 Cti. DU. 429; 31 L. T. GG6; 34 L. T. 105 ; 24 W. R. 803 5(54 5G5 Robb V. Green, 2 Q. B. (95) 315 ; 64 L. J. Q. B. 593; 73 L. T. 15 ; 44 W. R. ' 25 345 Roberts, Re, 21 Ch. D. 553 ; 47 L. T. 402 ; 31 W. R. 104 25 , Re, 7G L. T. 479 60, 63, 70, 21G • , ii'e, P. (98) 149 ; 78 L. T. 390 166 V. Cooper, 2 Ch. (91) 335 ; 60 L. J. Ch. 377 ; 64 L. T. 584 195, 221, 222 V. Eberhardt, Kay 148 631 t;. Hanhy, Amb. 127 183,208 V. Holland, 1 Q. P.. (93) 665; 62 L. J. Q. B. 621 ; 41 W. R. 494 .. 3G2 V. Hnghes, 6 Eq. 20 449 Robertson v. Broadbent, 8 App. 812 ; 53 L. J. Ch. 266 ; 50 L. T. 243 ; 32 W. R. 205 192 Robins v. Goldinghain, 13 Eq. 440 ; 41 L. J. Ch. 813 ; 25 L. T. 900 .. .. 430 Robinson, Re, 1 Ch. (97) 85 ; 66 L. J. Ch. 97 ; 76 L. T. 95 ; 45 W. R. 181 8 V. Ashton, 20 Eq. 25; 44 L. J. Ch. 542; 33 L. T. 88; 23 W. R. 674 614, 620 V. Davison, L. R. 6 Ex. 269 ; 40 L. J. Ex. 172 ; 24 L. T. 755 ; 19 W. R. 103G 547 V. Galland, 60 L. T. 697 ; 37 W. R. 396 499 . V. Geisel, 2Q. B. (94)685; 64 L. J. Q. B. 52; 71 L. T. 70; 42 W. R. 609 609 V. Harkin, 2 Ch. (96) 415 ; 65 L. J. Ch. 773 ; 74 L. T. 777 ; 44 W. R. 702 48,61,433,572 V. Kilvert, 41 Ch. Div. 88 ; 58 L. J. Ch. 392 ; 61 L. T. 60 ; 37 W. R. 545 310 V. Lynes, 2 Q. B. (94) 577; 63 L. J. Q. B. 759; 71 L. T. 249; 43 W. R. '62 230 V. Montgomeryshire &c. Co., 2 Ch. (96) 841 ; 65 L. J. Ch. 915 414 V. Pickering, 16 Ch. Div. 660 ; 50 L. J. Ch. 527 ; 44 L. T. 165 ; 29 W. R. 385 227 V. Trevor, 12 Q. B. Div. 423 ; 53 L. J. Q. B. 85 ; 50 L. T. 190 ; 32 W. R. 374 411 Robison V. Killey, 30 B. 520 252 Robley v. R., 2 B. 95 1^,0 Robson, Re, 19 Ch. Div. 15G ; 51 L. J. Ch. 337 ; 45 L. T. 418 ; 30 W. R. 257 16 , Re, 2 Ch. (91) 559 ; 60 L.J. Ch. 851 ; 65 L. T. 173 202 V. Edwards, 2 Ch. (93) 146 ; 62 L. J. Ch. 378 ; 68 L. T. 195 ; 41 W. R. 569 312 V. Smith, 2 Ch. (95) 118; 64 L. J. Ch. 457; 72 L. T. 559; 43W. R. 632 481 Rocb V. Callen, G Ila. ,531 149 Rochefoucauld v. Boustead, 1 Ch. (97) 196; 66 L. J. Ch. 74; 75 L. T. 502; 45 W. R. 272 5, 67, 165, 377, 432, 456, 529, 530, 533 TABLE OF CASES. • XCl PAOE Kochefoucauld v. Boustead, 1 Cli. (98) 550; 67 L. J. Cli. 427.. .. 188, 420 Rock 2;. Mathews, 2 D. G. &Sm. 227 032 Rodger v. Harrison, 1 Q. B. (93) 161; 62 L. J. Q. B. 213; 68 L. T. 06; 41W. R. 29L 415,490 Rodiiers V. Marshall, 17 Yes. 294 553 RiHjbuck V. Chadebet, 8 Eq. 127 ; 38 L. J. Ch. 488 ; 20 L. T. 940 .. ..360 Rogers, hx parte, 26 Ch. Div. 31 ; 53 L. J. Ch. 936 ; 51 L. T. 177 ; 3J W. R. 737 52 V. Ingliam, 3 Ch. Div. 351 ; 46 L. J. Ch. 322 ; 35 L. T. 677 ; 25W. R. 338 53,536 v. Jones, 3 Ch. D. 688 ; 24 W. R. 1039 109,125 V. Rice, 2 Ch. (92) 170 ; 61 L. J. Ch. 573 ; 66 L. T. 640 ; 40 W. R. 489 275 I Rolfe V. Peterson, 2 Bru. P. C. 436 261 RoUit, i?e, W. N. (93) 195 41,387 Rolls V. Isaacs, 19 Ch. D. 268 ; 51 L. J. Ch. 170 ; 45 L. T. 704 ; 30 W. R. 243 323 ■ V. Miller, 27 Ch. Div. 71 ; 53 L. J. Ch. 682 ; 50 L. T. 597 ; 32 W. R. 806 290 V. Pearce, 5 Ch. D. 730 ; 46 L. J. Ch. 791 ; 36 L. T. 438 ; 25 W. R. 899 203 Roots V. Williamson, 38 Cli. D. 485; 57 L. J. Ch. 995; 58 L. T. 802; 36 W. R. 758 413 Roper, He, 39 Ch. D. 482 ; 59 L. T. 203 ; 36 W. R. 750 234 Rosenberg v. Cook, 8 Q. B. Div. 162 ; 51 L. J. Q. B. 170 ; 30 W. R. 344 .. 461 Rosenthal v. Reynolds, 2 Ch. (92) 301 ; 61 L. J. Ch. 508 ; 67 L. T. 162 ; 40W. R. 521 330,331 Rosher v. Williams, 20 Eq. 210 ; 44 L. J. Ch. 419 ; 23 W. R. 561 .. .. 27 Ross, Be, 2 Ch. (97) 397 ; 66 L. J. Ch. 662 ; 77 L. T. 89 ; 46 W. R. 27 .. 8 V. Army &c. Co., 34 Ch. Div. 43 ; 55 L. T. 472 ; 35 W. R. 40 .. .. 382 V. Buxton, 42 Ch. D. 190 ; 58 L. J. Ch. 442 ; 60 L. T. 630 ; 38 W. R. 71 428 V. Estates &c. Co., 3 Ch. 682; 37 L. J. Ch. 873 ; 19 L T. 6L; 16W. R.1151 515 V. ParKyns, 20 Eq. 331 ; 44 L. J. Ch. 610 ; 30 L. T. 331 ; 24 W. R. 5 .. 605 V. White, 3 Ch. (94) 326 ; 64 L. J Ch. 48 ; 71 L. T. 277 .. .. 636 Ross Commissioners v. Qsbornf^, W. N. (90) 92 .. .. .. .. 445 Rossiter, Be, 13 Ch. D. 355 ; 49 L. J. Ch. 36 ; 42 L. T. 353 ; 28 W. R. 238 190 V. Miller, 3 App. 1124 ; 48 L. J. Ch. 10 ; 39 L. T. 173 ; 26 W. R. 865 454, 455 Roth, i?e, 74 L. T. 50 50 Roughton V. Gibson, 46 L. J. Ch. 366 ; 36 L. T. 93 ; 25 W. R. 269 .. 358 Rouse y. Bradford &c. Co., A. C. (94) 586; 63 L. J. Ch. 890; 71 L. T. 522; 43W. R. 78 582,612 Routledue v. Lowe, L. R. 3 H. L. 100 ; 37 L. J. Ch. 454 ; 18 L. T. 474 ; 16W. R. 1081 341 Rowe, Be, 58 L. J. Ch. 703 ; 61 L. T. 581 165, 197 , Be, 1 Ch. (98) 153 ; 67 L. J. Ch. 87 ; 77 L. T. 475 ; 46 W. R. 357 154 V. Gray, 5 Ch. D. 263 ; 46 L. J. Ch. 279 ; 25 W. R. 250 .. .. 359 V. London School Board, 36 Ch. D. 619 ; 57 L. J. Ch. 179 ; 57 L. T. 182 486 Rowland v. Mitchell, 1 Ch. (97) 71 ; 66 L. J. Ch. 110 ; 75 L. T. 498 .. 334 Rowley v. Ginnever, 2 Ch. (97) 503 ; 66 L. J. Ch. 669 ; 77 L. T. 302 .. 35 V. R., Kay242 563,566 Rownson, Be, 29 Ch. Div. 358 ; 54 L. J. Ch. 950 ; 52 L. T. 825 ; 33 W. R. 604 215 Roxburghe v. Cox, 17 Ch. Div. 520 ; 50 L. J. Ch. 772 ; 45 L. T. 225 ; 30 W. R. 74 593 Royal &c. Society v. Bomash, 35 Ch. D. 390; 56 L. J. Ch. 840; 57 L. T. 179 485, 487 Ruabon &c. Co. v. G. W. Ry. Co., 1 Ch. (93) 427 ; 62 L. J. Ch. 483 ; 68 L. T. 110; 41 AV. R. 418 300 Ruilge V. Richens, L. R. 8 C. P. 358 ; 42 L. J. C. P. 127 ; 28 L. T. 537 .. 421 Rule u. Jewell, 18 Ch. D. 660 ; 29 W. E. 755 278,533 XCll TABLE OF CASES. PAGE llummcns v. Hare, 1 Ex. D. 1G9; 46 L. J. Ex. 30; 34 L. T. 407; 24 W. R. 385 11 rvuniiiey, 2 Ch. (97) 351 ; 66 L. J. Ch. 641 ; 76 L. T. 800 ; 45 W. R. 678 .. 379 ]{u4ihrouk V. Lawrence, 5 Ch. 3 ; 21 L. T. 477 ; 18 W. R. 101 .. .. 386 Russell, Ex parte, 19 Ch. Div. 588 ; 51 L. J. Ch. 521 ; 46 L. T. 113 ; 30 W. R. 584 20 , i?e, 29 Ch. Div. 254 ; 53 L. T. 365 579 , lie, 2 Ch. (95) 698 ; 64 L. J. Ch. 891 ; 73 L. T. 195 ; 44 W. R. 100 57 v. Plaice, 18 B. 21 210 V. R., 14 Ch. D. 471 ; 49 L. J. Ch. 268 ; 42 L. T. 112 .. .. 618 V. St. Aubyn, 2 Ch. D. 398 ; 35 L. T. 395 ; 46 L. J. Ch. 641 136, 137 V. Watts, 10 App. 590 ; 55 L. J. Ch. 158 ; 53 L. T. 876 ; 34 W. R. 277 316 Russian Spratts Limited, Re, 2 Ch. (98) 149 ; 67 L. J. Ch. 381 ; 78 L. T. 480; 46 W. R. 514 381 Rutter V. Everett, 2 Ch. (95) 872 ; 64 L. J. Ch. 845 ; 73 L. T. 82 ; 44 W. R. 104 383 Rvan V. Mutual &c. Assn., 1 Ch. (93) 116; 62 L. J. Ch. 252 ; 67 L. T. 820; 41 W. R. 146 296,453 Rymer, lie, 1 Ch. (95) 19 ; 64 L. J. Ch. 86 ; 71 L. T. 590; 43 W. R. 87 .. 7 S., i?e, W. N. (93) 127 237 SackviUe v. Smyth, 17 Eq. 153 ; 43 L. J. Ch. 494 ; 22 W. R. 179 .. .. 188 West V. Uolmesdale, L. R. 4 H. L. 543 ; 39 L. J. Ch. 505 .. 28, 30 Sadler v. G. W, Ry. Co., A. C. (96) 450 ; 65 L. J. Q. B. 462 ; 74 L. T. 561 ; 45W. R. 51 311 V. Worley, 2 Ch. (94) 170 ; 63 L. J. Ch. 551 ; 70 L. T. 494 ; 42 W. R. 476 381,423,429 Saflfrou Walden &c. Society v. Rayner, 14 Ch. Div. 406 ; 49 L. J. Ch. 465 ; 43 L. T. 3 ; 28 W. R. 681 74,76 St. Aubyn v. Smart, 3 Ch. 646 ; 19 L. T. 192 ; 16 W. R. 1095 .. 609, 610 — Germans (E.) v. Crystal Palace Ry. Co., 11 Eq. 568 ; 24 L. T. 288 ; 19 W. R. 584 491 — Gobain &c. Co. v. Hoyermann, 2 Q. B. (93) 96 ; 62 L. J. Q. B. 485 ; 69 L. T. 329 ; 41 W. R. 563 609 — John V. Wareham, 3 Sw. 631 388 — Luke's V. St. Leonard's, 1 Bro. C. C. 40 .. .. .. .. .. 373 — Stephen, Re, 39 Ch. D. 492 ; 57 L. J. Ch. 917 ; 59 L. T. 393 ; 36 W. R. 837 8 Salaman v. Glover, 20 Eq. 444 ; 44 L. J. Ch. 551 ; 32 L. T. 792 ; 23 W. R. 722 312 Sale V. Lambert, 18 Eq. 1 ; 43 L. J. Ch. 470 ; 22 W. R. 478 454 Salford (M. of) v. Lever, 1 Q. B. (91) 168 ; 60 L. J. Q. B. 39 ; 63 L. T. 658 ; 39 AV. R. 85 3.5, 526 Salisbury (M. of), Re, 2 Ch. Div. 29 ; 45 L. J. Ch. 250 ; 34 L. T. 5 .. 239, 240 V. S., 6 Ha. 526.. .. 161 Salmon, Re, 42 Ch. Div. 351 ; 62 L. T. 270 ; 38 W. R. 150 43, 46 Salomon v. Salomon & Co., A. C. (97) 22 ; 65 L. J. Ch. 35 ; 75 L. T. 426 ; 45 W. R. 193 526 Salt, Re, 3 Ch. (94) 166 ; 63 L. J. Ch. 756 ; 71 L. T. 386 ; 42 W. R. 666 .. 333 , Re, 2 Ch. (95) 203 ; 64 L. J. Ch. 494; 43 W. R. 500 „ ., 183, 208 , Re, 1 Ch. (96) 117 ; 65 L. J. Ch. 152 ; 73 L. T. 598 ; 44 W. R. 146 .. 482 — V. Cooper, 16 Ch. Div. 544 ; 50 L. J. Ch. 529; 43 L. T. 682 ; 29 W. R. 553 426 V. Northampton (M. of), A. C. (92) 1 ; 61 L. J. Ch. 49 ; 65 L. T. 765 ; 40 W. R. 529 378, 385 TABLE OF CASES. xciii PACK Saltino;, Ex parte, 25 Ch. Div. 148; 53 L. J. Ch. 415; 49 L. T. G94; 32 W. R. 450 207,420 Salvin V. North &c. Co., 9 Ch. 705 ; 44 L. J. Ch. 149 ; 31 L. T. 154 ; 22 W. R. 904 310 Sampson, Re, 25 Ch. Div. 482 ; 53 L. J. Ch. 457 ; 50 L. T. 435 ; 32 W. R. 617 254 255 , Be, 1 Ch. (96) 630; 65 L. J. Ch. 406 ; 74 L. T. 246 ; 44 W. R. 557 ' 24 Sandbach, Be, 1 Ch. (91) 99 ; 60 L. J. Ch. 60 ; 63 L. T. 797 ; 39 W. R. 193 475 Sander v. Heathfield,' 19 Eq. 21 ; 44 L. J. Ch. 113 ; 31 L. T. 400 ; 23 W. R. 331 181 Sanders v. S., 19 Ch. Div. 373 ; 51 L. J. Ch. 276 ; 45 L. T. 637 ; 30 W. R. 280 435 Sandon V. Hooper, 6 B. 246 399 Sands, Be, 22 Ch. D. 614 ; 52 L. J. Ch. 406 ; 48 L. T. 210; 31 W. R. 397 393, 396, 435 Sandwich (E. of) v. G. N. Ry. Co., 10 Ch. D. 707 ; 27 W. R. 616 .. .. 312 Sandys, Ex parte, 42 Ch. Div. 98 ; 58 L. J. Ch. 504 ; 61 L. T. 94 ; 37 W. R. 531 530, 536 Sanguinetti v. Stuckey's &c. Co., 1 Ch. (95) 176 ; 64 L. J. Ch. 181 ; 71 L. T. 872 ; 43 W. R. 154 23,442 Sankey, i?e, W. N. (89) 79 173,187 Sargant V. Read, 1 Ch. D. 600 ; 45 L. J. Ch. 206 634 Sartoris, Be, I Ch, (92) 11 ; 61 L. J. Ch. 1 ; 65 L. T. 544 : 40 W. R. 82 197, 634 Sass, Be, 2 Q. B. (96) 12 ; 65 L. J. Q. B. 481 ; 74 L. T. 383 ; 44 W. R. 588 580, 581 Saunders, Be, 1 Ch. (98) 17 ; 67 L. J. Ch. 55 ; 77 L. T. 450 ; 46 W. R. 180 198 V. Dense, 52 L. T. 644 456 V. Dunman, 7 Ch. D. 825 ; 47 L. J. Ch. 338 ; 38 L. T. 416 ; 26 W. R. 397 448 T. 755 ; .. 336 .. 505 149, 151 - V. Sun &c. Co., 1 Ch. (94) 537 ; 63 L. J. Ch. 247 ; 69 L 42 W. R. 315 Savill V. Langman, 79 L. T. 44 .. S.iwrey v. Rumuey, 5 D.G. & Sm. 698 Sawyer v. S., 28 Ch. Div. 595 ; 54 L. J. Ch. 444 ; 52 L. T. 292 ; 33 W. R. 403 ' 61, 62, 63, 66, 67 Saxby v. Thomas, 63 L. T. 695 ; 64 L. T. 65- 4(il, 481 Saxlehner v. Apollinaris Co., 1 Ch. (97) 893 ; 66 L. J. Ch. 533 ; 76 L. T. 617 336, 338 Saxton V. Bartley, 27 W. R. 615 ; 48 L. J. Ch. 519 3G0 Sayer v. S., 7 Ha. 377 .. .. 551 Sayers v. Collyer, 28 Ch. Div. 103 ; 54 L. J. Ch. 1 ; 51 L. T. 723 ; 33 W. R. 91 285, 485 Sayre v. Hughes, 5 Eq. 376 ; 37 L. J. Ch. 401 ; 18 L. T. 347 ; 16 W. R. 662 34 Scales v. Maude, 6 D. M. & G. 43 16 Scanlan, Be, 40 Ch. D. 200 ; 57 L. J. Ch. 718 ; 59 L. T. 599 ; 36 W. R. 842 241, 243 Scarf V. Jardine, 7 App. 345 ; 51 L. J. Q. B. 612 ; 47 L. T. 258 ; 30 W. R. 893 607, 611, 612 Schauer v. Field, 1 Ch. (93) 35 ; 62 L. J. Ch. 72 ; 68 L. T. 81 ; 41 W. R. 201 351 Schelsinger V. Bedford, W. N. (93) 57 282 ScliotieLl, Ex parte, 12 Ch. Div. 337 ; 48 L. J. Bky. 122 ; 40 L. T. 823*- 27 W. R. 925 ' 191 Scholefitld V. Lockwood, 32 B. 439 .. .. ,. . 404 V. , 4D. J. &S. 22 .'.' " 438 Scholey V. Peck, 1 Ch. (93) 709 ; 62 L. J. Ch. 658 ; 68 L. T. 118 ; 41 W. R. 508 428 Scliove V. Schmincke, 33 Ch. D. 546; 55 L. J. Ch. 892; 55 L. T. 212- 34 W. R. 700 341 XCIV TABLE OF CASES. PAGE Schwedcr, Be, 3 Ch. (01) 44; GO L. J. Ch. G56 ; 65 L. T. 04; 39 W. R. 588 200 Scol)ie V. Collins, 1 Q. B. (05) 375 ; 64 L. J. Q. B. 10 ; 71 L. T. 775 ., .. 394 Scotney v. Loiiier, 29 Ch. D. 535; 54 L. J. Ch. 558; 52 L. T. 747; 33W. R. 633 39,60 V. , 31 Ch. Div. 380 ; 55 L. J. Ch. 443 ; 54 L. T. 194 ; 34W. K. 407 39, CO, 63, 193 Scott, Be, 1 Ch. (91) 298; 60 L. J. Ch. 461; 63 L. T. 800; 39 W. R. 2(54 31, 255 V. Alvarez, 2 Ch. (95) 603 ; 64 L. J. Ch. 821 ; 73 L. T. 43 ; 43 W. R. 694 452, 453, 461, 475, 478, 485, 49<5 V. Izon, 34 B. 434 211 V. Morley, 20 Q. B. Div. 120 ; 57 L. J. Q. B. 43 ; 57 L. T. 919 ; 36 W. R. 67 233 V. Rape, 31 Ch. Div. 554; 55 L. J. Ch. 426; 54 L. T. 399; 34 W. R. 465 313,317 V. Raynicnt, 7 Eq. 112 ; 38 L. J. Ch. 48; 19 L. T. 4 619 V. Stanford, 3 Eq. ^8; 36 L. J. Ch. 729; 16 L. T. 51 ; 15 W. R. 757 316, 347 w. Strenthani &c. Co., W. N. (91) 153 439 V. Tyler, 2 Bro. C. C. 431 508 Scottish Sec. Co., Be, 23 Ch. Div. 413 ; 49 L. T. 348 ; 31 W. R. 846 .. .. 515 Scudamore V. S., Free, in Ch. 543., .. .. .. .. .. ., 86 Seagram v. Knight, 2 Ch. 628; 36 L. J. Ch. 918; 17 L. T. 47; 15 W. R. 1152 304,305 Seaman, Be, 1 Q. B. (96) 412 ; 65 L. J. Q. B. 348 ; 74 L. T. 151 ; 44 W. R. 496 384,416 Searle v. Cooke, 43 Ch. Div. 519 ; 59 L. J. Ch. 259 ; 62 L. T. 211 .. .. 374 V. Law, 15 Sim. 95 ,. .. .. .. .. .. ., ,. 11 Seaton v. S., 13 App. 61 ; 57 L. J. Ch. 661 ; 58 L. T. 565 ; 36 W. R. 865 107, 124, 125, 127, 128, 255 V. Twvford, 11 Eq. 591; 40 L. J. Cli. 122; 23 L. T. 648; 19W. R. 200 386 Seddon v. Bk of Bolton, 19 Ch. D. 462 ; 51 L. J. Ch. 542 ; 46 L. T. 225 ; 30 W. R. 362 313 Sedey v. Jaso, 1 P. W. 389 87,97 Sefton (E. oif), Be, 2 Ch. (98) 378 ; 78 L. T. 765 127, 367 Seligma.i v. Piiuce, 2 Ch. (95) 617; 64 L. J. Ch. 745; 73 L. T. 124; 44W. R. 6 21 Sells v. S., 1 Dr. & Sm. 42 538 Selwyn v. Garfit, 38 Ch. D. 273; 57 L. J. Ch. 609; 59 L. T. 233; 36 W. R. 513 379 Semet, Be, A. C. (95) 78 ; 64 L. J. P. C. 41 ; 71 L. T. 674 323 Seniorv. Pawson, 3 Eq. 330; 15 W. R. 220 317 Serle, Be, 1 Ct,. (98) 652 ; 67 L. J. Ch. 344 ; 78 L. T. 384 ; 46 W. R. 440 .. 271 Seton V. Slade, 7 Yes. 265 * .. 453 Shakespear, Be, 30 Ch. D. 169 ; 55 L. J. Ch. 44 ; 53 L. T. 145 ; 33 W. R. 744 232 Shallcross v. Finden, 3 Ves. 738 173 Shannon w. Bradstreet, 1 Sch. & Lef. 52.. .. .. .. .. .. 558 Shardlow v. Cotterell, 20 Ch. Div. 90 ; 51 L. J. Ch. 353 ; 45 L. T. 572 ; 30 AV. R. 143 454 Sharland, Be, 1 Ch. (96) 517 ; 65 L. J. Ch. 280 ; 74 L. T. 20 194 Sharman V. S., 67 L. T. 834 19,459 Sharp, Be, 45 Ch. Div. 286 ; 60 L. J. Ch. 38 ; 62 L. T. 777 42 TABLE OF CASES. XCV PAGE Sharp V. Lush, 10 Ch. D. 468 ; 48 L. J. Ch. 231 ; 27 W. R. 528 .. .. 170 V. St. Sauveur, 7 Ch. 343 ; 41 L. J. Ch. 576 ; 20 W. R. 269 ; 20 L. T. 142 103, 104, 106 Sharpe, He, 1 Ch. (92) 154 ; 61 L. J. Ch. 193 ; 65 L. T. 806 ; 40 W. R. 241 36, 53, 80, 532, 533, 621) V. Foy, 4 Ch. 35 ; 19 L. T. 541 ; 17 W. R. 65 74, 230 Shaw, Be, 27 Ch. D. 614 ; 54 L. J. Ch. 51 ; 33 W. R. 74 484 V. Benson, 11 Q. B. Div. 563 ; 52 L. J. Q. B. 575 ; 49 L. T. 651 .. 621 ■ V. Foster, L. R. 5 H. L. 321 ; 42 L. J. Ch. 49 ; 27 L. T. 281 ; 20W. R. 907 382,487,488 V. Simmons, 12 Q. B. D. 117 ; 53 L. J. Q. B. 29 ; 32 W. R. 292 .. 621 u. Thackray, 1 Sm. & G. 537 473 Sheers V. Thimbleby, 76 L. T. 709 572 Sheffield &c. Society v. Aizlewood, 44 Ch. D. 412; 59 L. J. Ch. 34; 62 L T. 678 36,43,410 V. Harrison, 15 Q. B. D. 358 ; 54 L. J. Q. B. 15 ; 51 L. T. 649 ; 33 W. R. 144 381 Shell, Ex parte, 4 Ch. Div. 789; 46 L. J. Bky. 62; 36 L. T. 270; 25 W. R. 420 606 Sheldon, Be, 39 Ch. D. 50 ; 58 L. J. Ch. 25 ; 59 L. T. 133 ; 37 W. R. 26 54, 56 Shelfer v. City &c. Co., 1 Ch. (95) 287 ; 64 L. J. Ch. 216 ; 72 L. T. 34 ; 43 W. R. 238 280, 285, 310, 315, 319 Shelly V. Nash, 3 Madd. 232 520 iShepard v. Jones, 21 Ch. Div. 469 ; 47 L. T. 604 ; 31 W. R. 308 .. 399, 400 Shepheard v. Walker, 20 Eq. 659; 44 L. J. Ch. 648; 33 L. T. 47; 23 W. R. 903 464 Shepherd v. Berger, 1 Q. B. (91) 597 ; 60 L. J. Q. B. 395 ; 64 L. T. 435 ; 39 W. R. 330 277 V. Norwich (Corpn. of), 30 Ch. D. 553 ; 54 L. J. Ch. 1050 ; 53 L. T. 251 ; 33 W. R. 841 471 Sheppard v. Duke, 9 Sim. 567 197 Sheriff V. Axe, 4 Russ. 33 41 Sherman v. S., 2 Vern. 276 588 Sherry, Be, 25 Ch. Div. 692 ; 53 L. J. Ch. 404 ; 50 L. T. 227 ; 32 W. R. 394 571, 583, 596 Sherwin V. Shakspear, 5 D. M. & G. 517 461,484,487 Sherwood V. Smith, 6 Ves. 454 248 Sheward, Be, 3 Ch. (93) 502 ; 69 L. T. 302; 41 W. R. 685 197 Shipwrighc V. Clements, 38 W. R. 746 ; 63 L. T. 160 537 Shropshire Union &c. Co. v. Reg., L. R. 7 H. L. 496; 45 L. J. Q. B. 3l ; 32 L. T. 283 ; 23 W. R. 709 73,413,489 Shurmur v. Sedgwick, 24 Ch. D. 597 ; 53 L. J. Ch. 87 ; 49 L. T. 156 ; 31 W. R. 884 26 Sibeth, Be, 14 Q. B. Div. 417 ; 54 L. J. Q B. 322 ; 33 W. R. 556 .. .. 39 Sichel V. Mosenthal, 30 B. 371 619 Siddall, Be, 29 Ch. Div. 1 ; 54 L. J. Ch. 682 ; 52 L. T. 114 ; 33 W. R. 509 .. 621 Sidebothnm v. Holland, 1 Q. B. (95) 378; 64 L. J. Q. B. 200; 72 L. T. 62 ; 43 W. R. 228 480 Siegert v. Findlater, 7 Ch. D. 801 ; 47 L. J. Ch. 233 ; 38 L. T. 349 ; 26 W. R. 459 338 Siggersw. Evans, 5 E. &B. 367 19 Silvester, Be, 1 Ch. (95) 573 ; 64 L. J. Ch. 390 ; 72 L. T. 283 ; 43 W. R. 443 571, 573 Simmins v. Shirley, 6 Ch. D. 173 ; 46 L. J. Ch. 875 ; 37 L. T. 121 ; 26 W. R. 25 393,400 XCVl TABLE OF CASES. PAGE Simmons v. Bland}-, 1 Ch. (97) 19 ; nc L. J. Ch. 83 ; Ta L. T. OIG ; 45 W. R. 296 441,445 V. Pitt, 8 Ch. 978 ; 43 L. J. Cli. 2r.7 ; 29 L. 'J'. 320 31, 58 Simpson v. Doniiy, 10 Ch. D. 28 ; 27 W. K'. 280 307 V. Godmanchetter Corpn., A. C. (97) (J96 ; GG L. J. Ch. 770 ; 77 L. T. 409 313 y. Howden, 1. Keen 583 504 y. Hughes, 70 L. T. 237 ; GG L. J. Ch. 334 454 V. Lester, 4 Jur. N. S. 1209 51 S mp«on's Claira, 30 Cli. D. 532 ; 57 L. J. Cli. 1G9 ; 58 L. T. IG .. .. G07 Siins, i^e, 45 W. K. 189 .' 23 • V. Lnudray, 2 Ch. (94) 318 ; 63 L, J. Ch. 535 ; 70 L. T. 530 ; 42 W. R. 62 1 453 {Sinclair, lie, 50 L. T. 83 89, 100 , lie, 1 Ch. (97) 921 ; GG L. J. Ch. 514; 70 L. T. 452 ; 45 W. R. 590 201 V. James, 3 Ch. (94) 554 ; 03 L. J. Ch. 873 ; 71 L. T. 483 .. 301, 302 Siiio;er &c. Co. v. Loog, 8 App. 15 .. .. .. ,. .. .. 336 Singleton v. Knight, 13 App. 788 ; 57 L. J. P. C. 100 ; 59 L. T. 738 .. 604 • V. Tomliiison, 3 App, 404 ; 38 L. T. 653 ; 20 W. R. 722 .. 88, 1h7 Sisson t;. Giles, 3 D. J. &: S. 014 105,107 Skcgg, lie, 25 Q. B. D. 505 ; 59 L. J. Q. R. 546 ; 63 L. T. 90 ; 39 W. R. 72 21 Skidmore v. Bradford, 8 Eq. 134; 21 L. T. 291 ; 17 W. R. 1050 .. .. 27 Skinner v. Shew (No. 1), 1 Ch. (93) 413 ; 62 L. J. CI). 190 ; 07 L. T. 690 ; 41 W. R. 217 328 • V. (No. 2), 2 Ch. (94) 581 ; 63 L. J. Ch. 826; 71 L. T. 110 .. 328 V. S., 13 P. D. 90 ; 57 L. J. P. 104 ; 58 L. T. 923 ; 36 W. R. 9 12 .. 244 Skinners' Co. v. Knight, 2 Q. B. (91) 542; 00 L. J. Q. B. 029; G5 L. T. 240; 40W. R. 57 273 Slater, lie, 11 Ch. D. 227; 48 L. J. Ch. 473; 40 L. T. 184; '^7 W. R. 448 430, 519, 544 Sleeman v. Wilson, 13 Eq. 30 ; 25 L. T. 408; 20 W. R. 109 242 Sleviu, lie, 2 Ch. (91) 230 ; CO L. J. Ch. 439 ; 64 L. T. 311 ; 39 W. R. 578 .. 7 Sloniau V. Walter, 1 Bro. C. C. 418 258 Small V. Atwood, Younge 457 ,. .. .. .. .. .. .. 493 • V. National Bk., 1 Ch. (94) 686 ; 63 L. J. Ch. 270 ; 70 L. T. 492 ; 42 W R 378 381 Smallwood" v. Sheppards, 2'q. B. (95) 627 ; 64 l'. J. Q.B. 727;' 73 L.T. 219 ; 44 W. R. 44 .. 455 Smart v. S., A. C. (92) 425 ; 61 L. J. P. C. 38 ; 67 L. T. 510 .. .. 240, 243 V. Tranter, 43 Ch. Div. 587 ; 59 L. J. Ch. 303 ; 02 L. T. 35G ; 38 W. 1\. 530 230 Smethurstv. Hastings, 30 Ch. D. 490; 55 L. J. Ch. 173; 52 L. T. 567; 33W. R. 496 43,45,64,67 Smith, i.V, lOCh. 79; 23 W. R. 297 .. .. 100 , lie, 22 Ch. D. 580 : 52 L. J. Ch. 411 ; 48 L. T. 254 ; 31 W. R. 413 191, 5!)4 , lie, 24 Ch. D. 672 ; 52 L. J. Ch. 921 ; 49 L. T. 297 594 , Be, 33 Ch. D. 195 ; 55 L. J. Cli. 914 ; 55 L. T. 549 ; 35 W. R. 103 .. 190 , lie, 42 Ch. D. 302 ; 58 L. J. C:h. 860 ; 61 L. T. 303 ; 37 W. R. 705 105, 249 , lie, 25 Q. B. Div. 530 ; 59 L. J. Q. B. 554 ; 38 W. R. 744 ,. ..481 ■ , He, 44 Ch. D. 654 ; 59 L. J. ( h. 284 ; 62 L. T. 181 ; 38 W. R. 380 508, 555 , Be, 2 Ch. (93) 1 ; 02 L. J. Ch. 330 ; 68 L. T. 337 ; 41 W. R. 289 .. 79 , Be, 1 Ch. (90) 71 ; 65 L. J. Cli. 159 ; 73 L. T. 004 ; 44 W. R. 270 34, 01 , Be, 1 Ch. (90) 171 ; 65 L. J. Ch. 269 ; 74 L. T. 14 ; 44 W. R. -280 .. 211 , Be, 2 Ch. (96) 590; 65 L. J. Ch. 761 ; 74 L. T. 810 ; 45 W. H. 29 .. 42 v. Adams, 5 I). M. i^' G. 712 114 V. Adkius, 14 Eq. 402; 41 L. J. Ch. 028; 27 L. T. 90; 20 W. R. 717 555 TABLE OF CASES. XCVll PAGE Smith V. Anderson, 15 Ch. Div. 247 ; 50 L. J. Cli. 39 ; 43 L. T. 320 ; 29 W. R. 21 10,621 V. Batslbrd, 76 L. T. 179 463 V. Chadwick, 9 App. 187 ; 50 L. T. 697 , 32 W. R. 687 .. .. 513 V. Conder, 9 Ch. D. 170; 47 L. J. Ch. 878; 27 W. R. 149 .. .. 143 V. Cooke, A. C. (91) 297 ; 60 L. J. Ch. 607 ; 65 L. T. 1 ; 40 W. R. 67 32 V. Crabtree, 6 Ch. D. 591; 25 W. R. 824 139 V. Day, 13 Ch. Div. 651 ; 28 W. R. 712 317 V. , 21 Ch. Div. 421 ; 48 L. T. 54; 31 W. R. 187 282 V. Bggingtou, L. R. 9 C. P. 145 ; 43 L. J. C. P. 140 ; 30 L. T. 521 .. 395 V. Gronow, 2 Q. B. (91) 394; 60 L. J. Q. B. 776; 65 L. T. 117; 40 W. R. 46 271 V. Hill, 9 Ch. D. 143 ; 47 L. J. Ch. 788 ; 38 L. T. 638 ; 26 W. R. 878 436 V. Jeyes, 4 B. 503 622,630,631 ■ v. Land&c. Corpn., 28 Ch. Div. 7; 51L. T. 718 .. .. 466,511 V. Peters, 20 Eq. 511 ; 44 L. J. Ch. 613 ; 23 W. R. 783 .. .. 471 V. Robinson, 13 Ch. D. 148 ; 49 L. J. Ch. 20 ; 41 L. T. 405 ; 28 W. R. 37 478 V. — , 2 Q. B. (93) 53 ; 62 L. J. Q. B. 509 ; 69 L. T. 434 ; 41 W. R. 588 483 V. S., 20 Eq. 500 ; 32 L. T. 787 ; 23 W. R. 771 317 V. — 3 Ch. (91) 550 ; 60 L. J. Ch. 694; 65 L. T. 334; 40 W. R. 32 .. 406 V. Wallace, W. N. (94) 214 469 V. Webster, 3 Ch. Div. 49 ; 45 L. J. Ch. 528 ; 35 L. T. 44 ; 24 W. R. 894 455 V. Wi'eatcroft, 9 Ch. D. 223; 47 L. J. Ch. 745; 39 L. T. 103; 27W.R. 42 457,493 Smitliett V. Hesketh, 44 Ch. D. 161; 59 L. J. Ch. 567; 62 L. T. 802; 38W. R. G98 -389,405,423,442 Smokeless &c. Co., Be, 1 Ch. (92) 590 ; 61 L. J. Ch. 391 ; 66 L. T. 407 ; 40 W. R. 507 329,330,333 Smythe v. S., 18 Q. B. D. 544 ; 56 L. J. Q. B. 217 ; 56 L. T. 197 ; 35 W. R. 346 451 Snaith, Be, 71 L. T. 318 ; 42 W. R. 568 197 Snell, Be, 6 Ch. D. 105 ; 46 L. J. Ch. 627 ; 37 L. T. 350 ; 25 W. R. 823 .. 430 Snelson V. Corbet, 3 Atk. 369 208 Saowdon, Ex parte, 17 Ch. Div. 44 ; 50 L. J. Ch. 540 ; 44 L. T. 830 ; 29 W. R. 654 574 Suu.'gs V. Seyd &c. Co., W. N. (94) 95 339 Soar V. Ashwell, 2 Q. B. (93) 390 ; 69 L. T. 585 ; 42 W. R. 165 .. 65, 80, 82 Societe &c. v. Walker, 11 App. 20; 55 L. J. Q. B. 169; 54 L. T. 389- 34W. R. 662 407,412,417 Solicitor, Be A, 14 Ch. D. 152; 49 L. J. Ch. 295; 42 L. T. 310; 28 W. R. 529 77 , Be A, 2 Ch. (95) 66 ; 61 [.. J. Ch. 467 ; 72 L. T. 679 ; 43 W. R. 490 77 Solomon, Be, 40 Ch. D. 508 ; 58 L. J. Ch. 339 ; 60 L. T. 487 ; 37 W. R. 331 379 Soltau ?;. De Held, 2 Sim. N. S. 133 309 310 Somers-Cocks, Be, 2 Ch. (95) 449 ; 73 L. T. 58 ; 44 W. R. lO'J .. .. 209 Somerset (D. of) v. Cookson, 3 P. W. 389 451 , Be, 1 Ch. (94) 231 ; 63 L. J. Ch. 41 ; 69 L. T. 744 ; 42 W. R. 145 45, 46, 67, 82 Somerville v. Schembri, 12 App. 453 ; 56 L. J. P. C. 61 ; 56 L. T. 454 335 Somes, Be, 1 Cli. (96) 250; 65 L. J. Ch. 262 ; 74 L. T. 49 ; 44 W. R. 236 .. 56 T Soper V. Arnold, 37 Ch. Div. 96; 57 L. J. Ch. 145; 57 L. T. 747; 36 W. R. 207 513 V. , 14 App. 429 ; 59 L. J. Ch. 214 ; 61 L. T. 702 ; 38 W. R. 449 486, 513, 538 9 XCVlll TABLE OF CASES. PAOE Sopwitb 1'. Maiii^lian, 30 B. 235 125 South African Kopublic r. La Compagnie &c., 1 Cl).(98) 190; G7 L. J.Ch,92; 77L. T. 555; 40 W. K. 151 283 Territories v. Wallington, A. C. (98) 309 ; G7 L. J. Q. B. 470 ; 78 L. T. 42G ; 4G W. R. 545 451 &c. Co. V. Haswell &c. Co., 1 Ch. (98) 465; G7 L. J. Ch. 238; 78 L. T. 3G6; 4G W. R. 355 455 Soutlian.i)ton, lie, IG Ch. D. 178; 50 L. J. Ch. 218; 43 L. T. G87 ; 29 W. R. 231 413 Dock Co. V. S. Harbour &c. Board,ll Eq. 254; 23 L. T. 698; 19 W. R. 201 586 Southbv, 7i'c, A. C. (91) 432 323 South 1 Tort &c. Co. V. 'J'hompson, 37 Ch. Div. 64 ; 57 L.J. Ch. 114 ; 58 L. T. 143 ; 30 W. R. 113 381 Sovereign &c. Co. v. Dodd, 2 Q. B. (92) 573 ; 62 L. J. Q. B. 19 ; G7 L. T. 396 ; 41W. R. 4 594 Sowdon V. S., 3 R. W. 227 n. ; 1 Bro. C. C. 582 157 Sowerby v. Fryer, 8 Eq. 417 ; 38 L. J. Ch. 617 ; 20 L. T. 868 ; 17 W. R. 879 303 Spackraan, He, 24 Q. B. Div. 728; 59 L. J. Q. B. 30G; 62 L. T. 849; 38 W. R. 497 21 Sparks, \ffe, G Ch. Div. 361 ; 37 L. T. 301 ; 25 W. R. 869 448 Sparrow, lie, 1 Ch. (92) 412 ; Gl L. J. Ch. 260 ; 66 L. T. 27G ; 40 W. R. 32G 47 Speer V. Crawter, 2Mer. 410 373 Spel"ht. He, 22 Ch. Div. 727 ; 52 L. J. Cn. 503 ; 48 L. T. 279 ; 31 W. R. 401 48 '■ V. Gaunt, 9 App. 1 ; 53 L. J. Ch. 419 ; 50 L. T. 330 ; 32 W. R. 435 48, 214 Spnce, i?e, 2 Ph. 252 238 Spencer, lie, 30 Ch. D. 183; 55 L. J. Ch. 80; 34 W. R. 62 226 V. Clarke, 9 Ch. D. 137 ; 47 L. J. Ch. 69-' ; 27 W. R. 133 .. 75, 410 V. Harrison, 5 C. P. D. 97; 49 L. J. C. P. 188; 41 L. T. 676; 28 W. R. 985 105 V. Slater, 4 Q. B. D. 13 ; 48 L. J. Q. B. 204 ; 39 L. T. 424 ; 27W. R. 134 21 Bell, ii'e, 33 W. R. 771 484 Spicer v. Martin, 14 App. 12 ; 58 L. J. Ch. 3^9 ; 60 L. T. 546 ; 37 AV. R. 6-9 289 Spike V. HardiuL', 7 Ch. D. 871 ; 47 L. J. Ch. 323; 38 L. T. 285; 26 VV. R. 420 .. ^ 374 Spirett v. Willows, 3 D. J. & S. 293 20 Sporle V. Whayraan, 20 B. 607 383 Springett v. Dashwood, 2 Gift". 521 52 Squire v. Pardoe, 66 L. T. 243 ; 40 W. R. 100 392 Stace V. Gage, 8 Ch. D. 451 ; 47 L. J. Ch. 608 ; 38 L. T. 843 ; 26 W. R. 605 367 Stacey v. El[.h, 1 M. & K. 195 525 Staight V. Burn, 5 Ch. 163 ; 39 L. J. Ch. 239 ; 22 L. T. 831 ; 18 W. }l. 243 315 Staiuton V. Caimn Co., 18 B. 146.. .. .. •• .. .. •• 218 Sramford &c. Co. V. Ball, 4 D. F. & J. 310 225 Stammers v. Elliott, 3 Ch. 195 ; 37 L. J. Ch. 353 ; 18 L. T. 1 ; 16 W. R. 489 196, 593 Standard &c. Co., lie, 1 Ch. (91) 627 ; 60 L. J. Ch. 292 ; 64 L. T. 487 ; 39 W. R. 369 381 Standering v. Hall, 11 Ch. D. 652 ; 48 L. J. Ch. 382 ; 27 W. R. 749 .. .. 107 Standing v. Bowring, 31 Ch. Div. 282 ; 55 L. J. Ch. 218 ; 54 L. T. 191 : 34W. R. 204 19,33,34 Stanford v. Hurlstone, 9 Ch. 116 ; 30 L. T. 140 ; 22 W. R. 422 .. .. 297 v. Roberts, 6 Ch. 307 ; 19 W. R. 552 52 TABLE OF CASES. xcix PAGE Staniar v. Evans, 34 Ch. D. 470 ; 5fi L. J. Ch. 581 ; 56 L. T. 87 ; 35 W. R. 28G 40 Stanley v. Coulthurst, 10 Eq. 259; 39 L. J. Cli. G50 ; 23 L. T. 761; 18 W. R. 969 29,301 V. Dowdeswell, L. R. 10 C. P. 102; 23 W. R. 389' 455 V.Grundy. 22 Ch. D. 478; 52 L. J. Ch, 248; 48 L. T. 106; 31 W. 11.315 400 (Lady) v. Shrewsbury (E. of), 19 Eq. 616 : 44 L. J. Ch. 389 ; 32 L. T. 248 ; 23 W. R. 678 317 V. Wrigley, 3 Sm. & G. 18 368 Stannard v. Lee, 6 Ch. 346 ; 40 L. J. Ch. 489 ; 24 L. T. 459 ; 19 W. R. 615 344 V. V. of St. Giles, 20 Ch. Div. 190 ; 51 L. J. Ch. 629 ; 46 L. T. 243 ; 30W. R. 693 281,286 Stapilton w. S., 1 Atk. 2 541 Stares V. Penton, 4 Eq. 40 140 Stair Bovvkett Buildinsr Society, i?e, 42 Ch. Div. 375 ; 58 L. J. Ch. 651 ; 61 L. T. 346 ; 38 W. R. 1 469 Stead, Re, 2 Ch. D. 713 ; 45 L. J. Ch. 634 ; 35 L. T. 465 ; 24 W. R. 698 .. 436 V. Mellor, 5 Ch. D. 225 ; 46 L. J. Ch. 880 ; 36 L. T. 498 ; 25 W. R. 508 9 Stedman, ii'e, 58 L. T. 709 368 Steers v. Rogers, A. C. (93) 232 ; 62 L. J. Ch. 671 ; 68 L. T. 726 .. .. 326 Stennius;, ^e, 2 Ch. (95) 433 ; 73 L. T. 207 71 Stephens, Be, 43 Ch. D. 39 : 59 L. J. Ch. 109 ; 61 L. T. 609 .. .. 173, 436 V. Green, 2 Ch. (95) 148 ; 64 L. J. Ch. 546 ; 72 L. T. 574 ; 43 W. R. 465 27,417 Stephenson, Be, 1 Q. B. (97) 638 ; 66 L. J. Q. B. 423 ; 76 L. T. 328 ; 45 W. R. 416 23 Steiiart v. Glndstone, 10 Ch. Div. 626 ; 40 L. T. 145 ; 27 W. H. 512 .. 614, 618 Stevens, i?e, AV. N. (96) 24 57 , Be, 1 Ch. (97) 422 ; 66 L. J. Ch. 155 ; 76 L. T. 18 ; 45 W. R. 284 ; 1 Ch. (98) 162 ; 67 L. J. Ch. 118 ; 77 L. T. 508 ; 46 W. R. 177 37, 211, 216 V. 'i'revor-Garrick, 2 Ch. (93) 307 ; 62 L. J. Ch. 660; 69 L. T. 11 ; 41W. R. 412 230,255 Stevenson V. Liverpool (M. of), L. R. 10 Q. B. 81 39 V. Masson, 17 Eq. 78 ; 43 L. J. Ch. 134 ; 29 L. T. 666 ; 22 W. R. 150 131 Steward I). Blakeway, 4 Ch. 603 615,628 Stewart v. Sanderson, 10 Eq. 26 ; 22 L. T. 10 ; 18 W. R. 278 .. ..43 V. S., 15 Ch. D. 539 ; 49 L. J. Ch. 763 ; 43 L. T. 370 ; 29 W. R. 275 131, 144 Stiflfe V. Everitt, 1 My. & Cr. 37 220 Stock V. McAvoy, 15 Kq. 55 ; 42 L. J. Ch. 230 ; 27 L. T. 441 : 21 W. R. 520 33, 34 v. Vining, 25 B, 235 544 Stocker v. Wtdderburn, 3 K. & J. 393 619 Stoddart v. Saville, 1 Ch. (94) 480; 63 L. J. Ch. 467 ; 70 L. T. 552 ; 42 W. R. 361 18 Stogdon V. Lee, 1 Q. B. (91) 661 ; 60 L. J. Q. B. 669 ; 64 L. T. 494 ; 39 W. R. 467 225,232,233 Stokes V. Clendon, 3 Sw. 150 n 437 V. Prance, 1 Ch. (98) 212 ; 67 L. J. Ch. 69 ; 77 L. T. 595 ; 46 W. R, 183 43 Stone, ^cc^jar/te, 8 Ch. 914: 42L. J. Bkv. 73 608 , Be, 33 Ch. D. 541 « 55 L. J. Ch. 795 ; 55 L. T. 256 ; 35 W. R. 54 .. 606 , i^e, W. N. (93) 50 417 , Be, 2 Ch. (95) 196 ; 64 L. J. Ch. 637 ; 72 L. T. 815 ; 44 W. R. 235 .. 54 V. Godfrey, 5 D. M, & G. 76 512,539,543 9 2 C TABLE OF CASES. PAGE Stone V. Lickorisli, 12 Cli. (fH) 363; 60 L. J. Ch. 289; 64 L. T. 79; 39 W. 11. 331 387 V. S., 5 Ch. 74 ; 39 L. J. Ch. 196 ; 22 L. T. 182 12 Stormont v. Wickens, 14 W. E. 192; 13L. T. 533 371 Storry v. Walsh, 18 B. 559 ;. 178 Stott V. Mihir, 25 Ch. D. 710; 50 L. T. 742 40, 431 Strallord (E. of), lie, 1 Cli. (96) 235 ; 73 L. T. 586 484, 491 Straker v. Wilson, G Ch. 503 ; 40 L. J. Ch. 630 ; 24 L. T. 763 ; 19 W. R. 761 55 Strangwayes v. Kead, 2 Ch. (98) 419 ; 79 L. T. 245 598 Straj))) V. I'mll, 2 Ch. (95) 1 ; 64 L. J. Ch. 658 ; 72 L. T. 514 ; 43 W. R. 641 633 Stratford v. RiiKm, 10 R. 25 .. .. ' 170 Stiathe.ltn, 7?e, W. N. (93)90 199 , Be, 3 Ch. (94) 265 ; 63 L. J. Ch. 872 ; 71 L. T. 225 ; 42 W. R. 647 8 StreatfieM V. S., Cas. Temp. Talbot 176 29,108 Stieatham &c. Co., Be, 1 Ch. (97) 15 ; 66 L. J. Ch. 57 ; 75 L. T. 574 ; 45 W. R. 105 381 Strellev v. Pearson, 15 Ch. D. 113; 49 L. J. Ch. 406; 43 L. T. 155; 28W. R. 752 477,495 Strett-n's &c. Co. v. M. of Derby, 1 Ch. (94) 431 ; 63 L. J. Cb. 135 ; 69 L. T. 791 ; 42 W. R. 583 312 Strickland v. Symous, 26 Ch. Div. 245 ; 53 L. J. Ch. 582 ; 51 L. T. 406 ; - 32 W. R. 889 210 Strohn.enger v. Finsbury &c. Society, 2 Ch. (97) 469; 66 L. J. Ch. 708 ; 77 L. T. 235 ; 46 W. R. 69 .. .. 411 Strong, Be, 32 Ch. Div. 342 ; 55 L. J. Ch. 553 ; 55 L. T. 3 ; 34 W. R. 614 77, 79 V. Bird, 18 Eq. 315 ; 43 L. J. Ch. 814 ; 30 L. T. 745 ; 22 W. R. 788 .. 13 V. Ingram, 6 Sim. 197 149,150 Stroud V. Edwards, 77 L. T. 280 226 Stuart, Be, 2 Q. B. (93) 201 ; 62 L. J. Q. B. 623 ; 69 L. T. 334 ; 41 W. R. 614 505 , Be, 2 Ch. (96) 328 ; 65 L. J. Ch. 576 ; 74 L. T. 450 ; 44 W. R. 610 479 ^g 74 L_ f^\ 54g ^^ ^^ ^^ ,, _^ _ .. ^^ 49 ' V. Diplnck, 43 Ch, Div. 343*; 59 lV J. Ch*.*142 ; 62 L. T.'333 ; 38 W. R. 223 294 Stubbs, Be, 8 Ch. Div. 154 ; 47 L. J. Ch. 671 ; 26 W. R. 736 .. .. 170 Siudds V. Watson, 28 Ch. D. 305; 54 L. J. Ch. 626; 52 L. T. 129; 33 W. R. 118 455 Stumore v. Campbell, 1 Q. B. (92) 314; 61 L. J. Q. B. 463; 66 L. 'J'. 218 ; 40W. R. 101 593 Sudeley, Be, 1 Ch. (94) 334; 63 L. J. Ch. 194; 70 L. T. 549; 42 W. R. 231 .. 92,104 Sugden V. Crossland, 3 Sm. & G. 192 34 V. Lord St. Leonards, 1 P. D. 154; 45 L. J. P. 49; 34 L. T. 369; 24 V\. R. 479 551 Siirman v. Wharton, 1 Q. B. (91) 491; 60 L. J. Q. B. 233; 64 L. T. 866; 39W. R. 416 230,236 Surtees v. S., 12 Eq. 400; 25 L. T. 288 ; 19 W. R. 1043 .. .. 28, 29 Sutherland v. Heathcote, 1 Ch. (92) 475 ; 61 L. J. Ch. 248; 66 L. T. 210 .. 538 V. S., 3 Ch. (93) 169; 62 L. J. Ch. 946; 69 L. T. 186; 42W. R. 13 558 Sutton, Be, 28 Ch. D. 464; 54 L. J. Cb. 613; 33 W. R. 519 8 V. Grey, 1 Q. B. (94) 285; 63 L. J. Q. B. 633; 69 L, T. 673; 42W. R. 195 603,605 V. S., 22 Ch. Div. 511 ; 52 L. J. Ch. 333 ; 48 L. T. 95 ; 31 W. R. 369 433 Svvaia. Be. 3 Ch. (91) 233; 61 L. J. Ch. 20; 65 L. T. 29H .. .. 82, 165, 197 Swaine v. Denby, 14 Ch. D. 326 ; 49 L. J. Ch. 734 ; 28 W. R. 622 .. .. 361 TABLE OF CASES. CI PACiK Swan y. S., 8 Price 518 362 Sweet V. Meredith, 4 Giff. 207 500 V. S., 1 Q. B. (95) 12 ; 64 L. J. Q. B. 108 ; 71 L. T. 672 ; 43 W. R. 303 234 Swectinc, Be, 1 Ch. (OS) 26S ; 67 L. J. Cli. 159 ; 78 L. T. 6 ; 4() W. R. 242 432 Swinburne, Be, 27 Ch. D. 696 ; 54 L. J. Ch. 229 ; 33 W. R. 394 .. .. 121 Swindon Waterworks Co. v. Wilts &c. Co., L. R. 7 H. L. 697 ; 45 L. J. Ch. 638 ; 33 L. T. 513 ; 24 W. R. 284 312 Syer V. Gladstone, W. N. (92) 178 56 Svers V. S., 1 App. 174; S5 L. T. 101 ; 24 W. R. 970 .. 604, 606, 619, 635, 636 Sykes v. S., 3 Ch. 301 ; 37 L. J. Ch. 367 ; 16 W. R. 545 31 Symes- v. Hughes, 9 Eq. 475 ; 39 L. J. Ch. 304 ; 22 L. T. 462 .. .. 10 «."S., 1 Ch. (96) 272 ; 65 L. J. Ch. 265 ; 73 L. T. 684 ; 44 W. it. 521 57 Synge v. S., 9 Ch. 128 ; 29 L. T. 855 ; 22 W. R. 227 116 V. -, 1 Q. B. (94) 466 ; 63 L. J. Q. B. 202 ; 70 L. T. 221 ; 42 W. R. 309 17. 156, 158, 160, 512 Tabok v. Brooks, 10 Ch. D. 273 : 48 L. J. Ch. 130 ; 39 L. T. 528 .. 24, 251 Tadcaster &c. Co. v. Wilson, 1 Ch. (97) 705 ; 66 L. J. Ch. 402 ; 76 L. T. 459 ; 45 W. R.428 461 Tait V. Lathbury, 1 Eq. 174 ; 35 B. 112 ; 11 Jur. N. S. 991 ; 14 W. R. 216 481 Talbot V. Hope Scott, 4 K. & J. 96 296 V. Jevers, 20 Eq. 255 ; 44 L. J. Ch. 646 ; 23 W. R. 741 .. .. 58 w. Shrewsbury (D. of), Free. Ch. 394 .. .. .. .. 147 Talbott, Be, 39 Ch. D. 567 ; 58 L. J. Cli. 70 ; 60 L. T. 45 ; 37 W. R. 233 .. 191 Tamiilin v. James, 15 Ch. Div. 215 ; 43 L. T. 520 ; 29 W. R. 311 ., 452, 473 Tamplin's Case, W. N. (,92) 146 •• .. .. 510 Tann, i?e, 7 Eq. 434 370 Tanner, i?e, 51 L. T. 507 ; 53 L. J. Ch. 1108 250 Tanqueray Willaume, Be, 20 Ch. Div. 465 ; 51 L. J. Ch. 434 ; 46 L. T. 542 ; 30W. R. 801 174,177,178,179,502 Tarn v. Turner, 39 Ch. Div. 456; 57 L. J. Ch. 1085; 59 L. T. 742; 37W. R. 276.. .. 380,389 Tasker v. T., P. (95) 1; 64 L. J. P. D. & A. 36; 71 L. T. 779; 43 W. R. 255 208 Tate V. Leithead, Kay 658 205 V. Williamsou, 1 Eq. 528 ; 14 L. T. 163 ; 14 W. R. 449 ; 2 Ch. 55 ; 15 L. T. 549 ; 15 W. R. 321 524 Taunton v. Morris, 11 Ch. Div. 779 ; 48 L. J. Ch. 408 ; 27 W. R. 718 .. 221 • V. S. of Warwickshire, 2 Ch. (95) 319 ; 64 L. J. Ch. 497 ; 72 L. T. 712 ; 43 W. R. 579 397 Taylor, hx parte, 12 Ch. Div. 366 ; 41 L. T. 6 ; 28 W. R. 205 .. .. 606 , i?e, 4 Ch. D. 157 ; 46 L. J. Ch. 399 ; 36 L. T. 169 ; 25 W. R. 69 .. 243 , i?e, 56 L. J. Ch. 597 202 , Be, 1 Ch. (91) 590 ; 60 L. J. Ch. 525 ; 64 L. T. 605 ; 39 W. R. 417 430, 432 , Be, 1 Ch. (94) 671 ; 63 L. J. Ch. 424 ; 70 L. T. 556 ; 42 W. R. 373 .. 195 V. Blakelock, 32 Ch. Div. 560 ; 56 L. J. Ch. 390 ; 55 L. T. 8 .. 70, 72 V. Bowers, 1 Q. B. Div. 291 ; 45 L. J. Q. B. 163 ; 34 L. T. 938 ; 24W. R. 499 10 V. Caldwell, 3 B. & S. 826 547 t;. Cartwright, 14 Eq. 167 ; 26 L. T. 571 135 V. Coeueri, 1 Ch. D. 636 ; 34 L. T. 18 20 <^. Hay garth, 14 Sim. 8 .. .. .. .. .. .. .. 93 V. Johnston, 19 Ch. D. 603 ; 51 L. J. Ch. 879 ; 46 L. T. 219 ; 30W, R. 508 519,522 Cll TABLE OF CASES. PAGK Taylor v. Meads, 4 D. J. & S. 597 225 V. Mostyn, 33 Ch. Div. 22G ; 55 L. J. Ch. 893 ; 55 L. T. 651 .. .. 396 V. N. ate, 39 Ch. D. 538 ; 57 L. J. Ch. 1044 ; 60 L. T. 179 ; 37 W. R. 190 628,633 V. N. S. Wales (Bk. of), 11 App. 596 ; 57 L. J. P. C. 47 ; 55 L. T. 444 583 V. Kussell, A. C. (92) 244; 61 L. J. Ch. 657; 66 L. T. 565; 41W. R. 43 73,412,418,419 -- V. T., 20 Eq. 155 ; 44 L. J. Ch. 718 ; 23 W. R. 719 144 Teasdale v. Braithwaite, 5 Ch. Div. 630 ; 46 L. J. Ch. 725 ; 36 L. T. 601 ; 25 VV. R. 546 » 26,29 Tebb, i?e, W. N. (79) 100 477 Teevan V. Smith, 20 Ch. Div. 724; 51 L. J. Ch. 621; 47 L. T. 208; 30 W. R. 716 405 Tempest v. Camovs, 21 Ch. Div. 571 ; 51 L. J. Ch. 785 ; 48 L. T. 13 ; 31 W. R. 326 251 Tendrincr Union (Guardians of) v. Dowton, 3 Ch. (91) 265 ; 61 L. J. Ch. 82 ; 65 L. T. 434 ; 40 AV. R. 145 290 Tennanr, Ex j)arte, 6 Ch. Div. 303 ; 37 L. T. 284 ; 25 W. R. 854 .. .. 605 Tennent v. Tennents, L. R. 2 H. L. Sc. 6 5:7 Terry, Be, 32 Ch. Div. 14 ; 55 L. J. Ch. 345 ; 54 L. T. 353 ; 34 W. R. 379 453, 468, 501 Tetley, i?e, 66 L. J. Q. B. Ill; 75L. T. 166 .. .. ' .. .. 20,23 Tliacker V. Key, 8 Eq. 408 135,159 Thack well r. Gardiner, 5 D. G. & Sm. 5^ 556 Thackwray, Re, 40 Ch. D. 34 ; 58 L. J. Ch. 72 ; 59 L. T. 815 ; 37 W. R. 74 487, 488, 496 Thatcher, Be, 26 Ch. D. 426 ; 53 L. J. Ch. 1050 ; 32 W. E. 679 .. .. 251 Thomas, Be, 14 Q. B. D. 379 ; 54 L. J. Q. B. 336 ; 51 L. T. 602 ; 33 W. R. 583 621 , Be, 34 Ch. D. 166; 56 L. J. Ch. 9 ; 55 L. T. 629 .. .. 88, 114, 492 -.Be, 3 Ch. (91) 482; 60 L. J. Ch. 781; 65 L. T. 142; 40 W. R. 75 .. .. .. .. ,. .. .. 54 55 56 , Be, i Q. B. (94) 747 ; 63 L. J. Q. B. 572 ; 7o'l. T. 567 .*.' .'. 505 • V. Atherton, 10 Ch. Div. 185 ; 48 L. J. Ch. 370 ; 40 L. T. 77 609, 61 7 u. Britnell, 2 Ves. Sen. 314 173,175 V. Brown, 1 Q. B. D. 714; 45 L. J. Q. B. 811; 35 L. T. 237; 24W. 11.821 454,486 V. Jennings, 66 L. J. Q. B. 5 ; 75 L. T. 274 ; 45 W. R. 93 .. .. 381 • ■ V. Lulham, 2 Q. B. (95) 400; 64 L. J. Q. B. 720; 73 L. T. 146; 43 W. R. 689 277 V. Turner, 33 Ch. Div. 292; 56 L. J. Ch. 56; 55 L. T. 534; 35 W. M. 177 344 Thompson, Be, 38 Ch. Div. 317 : 57 L. J. Ch. 748 ; 51) L. T. 427 .. .. 233 ,Be, 44 Ch. D. 492; 59 L. J. Ch. 651; 62 L. T. 651; 38W. R. 524 379,482 , i?e, 44 W. R. 582 L'OO V. Burra, 16 Eq. 592 ; 42 L. J. Ch. 827 114 y. Clark, 11 W. R. 23 ; 7 L. T. 269 408 v. Finch, 8 D. M. & G. 560 60 V. Fisher, 10 Eq. 207 ; 18 W. R. 860 29 V. Hodgson, 2 Str. 777 205 V. Hudson, L. R. 4 H. L. 1; 38 L. J. Ch. 431 262 • V. , 10 Eq. 497; 40 L. J. Ch. 28; 23 L. T. 278; 18W. R. 1081 404 V. , 6 Ch. 320; 24 L. T. 301 ; 19 W. R. 645 .. .. 595 TABLE OF CASES. ClU PAGE Thompson V. Webster, 4 Drew. 628 20 Thomson v. Clydesdale Bk., A. C. (93) 282; 62 L. J. P. C. 91; 67L. T. 156 65,72 V. Eastwood, 2 App. 215 .. .. 80,165,436,513,525,533,535 V. T., P. (96) 263 ; 65 L. J. P. 81 ; 74 L. T. 801 ; 45 W. l{. 134 .. 237 Thorley, Re, 2 Ch. (91) 613 ; 60 L. J. Ch. 537 ; 64 L. T. 515 ; 39 W. R. 565 40 Thorley's &c. Co. v. Massam, 14 Ch. Div. 763 ; 42 L. T. 851 ; 28 W. R. 966 319 Thornhorough v. Baker, 3 Sw. 628 .. .. .. .. .. •• 388 Thorne v. Cann, A. C. (95) 11 ; 64 L. J. Ch. 1 ; 71 L. T. 852 .. .. 406 V. Heard, A. C. (95) 495; 64 L. J. Ch. 652; 73 L. T. 291; 44W. R. 155 81,82,397,434,513,532 V. T., 3 Ch. (93) 196 ; 63 L. J. Ch. 38 ; 69 L. T. 378 .. .. 210 Thorneloe v. Hill, 1 Ch. (94) 569 ; 63 L. J. Ch. 331 ; 70 L. T. 124 ; 42 W. R. 397 615 Thorneycrofc v. Crockett, 2 H. L. C. 239 403 Thornley v. T., 2 Ch. (93) 229 ; 62 L. J. Ch. 370; 68 L. T. 199 ; 41 W. R. 541 ., ^ \. 34,228 Thornton V. France, 2 Q. B. (97j 143; 66 L. J. Q. B. 705; 77 L. T. 38; 46W. R. 56 43» -y. Hawlev, 10 Ves. 129 90 u. StokiU, IJur. N. W. 751 46,70 Thorp V. Huldsworth, 3 Ch. D. 637 ; 46 L. J. Ch. 406 622 Thurlow V. Mackeson, L. R. 4 Q. B. 97 ; 38 L. J. Q. B. 57 ; 19 L. T. 448 ; 17 W. K. 280 397 Thursby v. T., 19 Eq. 395 ; 44 L. J. Ch. 289 ; 32 L. T. 187 ; 23 W. R. 500 54 Thwaites v. Coulihvvaite, 1 Ch. (96) 496; 65 L. J. Ch. 238; 74 L. T. 164; 44 W. R. 295 621 Thynne (Lady) v. Glengall (E. of), 2 H. L. C. 131 .. .. 131, 136, 145, 147 V. fehove,45 Ch. D. 577 ; 59 L. J. Ch. 509 ; 62 L. T. 803 ; 38 W. R. 667 614 Tibbatts V. Boulter, 73 L. T. 534 465 Tibbits V. T., 19 Ves. 656 125 Tickner v. Old, 18 Eq. 422 ; 31 L. T. 29 ; 22 W. R. 871 54 Tidd, Be, 3 Ch. (93) 154 ; 62 L. J. Ch. 915 ; 69 L. T. 255 ; 42 W. R. 25 .. 433 Tierney V. Wood, 19 B. 330 9,12,15 Tilburv &c. Co., Be, 62 L. J. Ch. 814 ; 69 L. T. 495 383 Tillett"v. Nixon, 25 Ch. D. 238 ; 53 L. J. Ch. 199 ; 49 L. T. 598 ; 32 W. R. 226 401 Tilley V. Thomas, 3 Ch. 61 ; 17 L. T. 422 ; 16 W. R. 166 462 Tillott, Be, 1 Ch. (92) 86 ; 61 L. J. CI.. 38 ; 65 L. T 781 ; 40 W. R. 204 .. 53 Tmnuchi v. Smart, 10 P. D. 184 ; 54 L. J. P. 92 ; 34 W. R. 46 .. .. 77 Tippett, B'^, 37 Ch. Div. 444 ; 58 L. T. 754 ; 36 VV. R. 597 226 Tipping V. T., 1 P. W. 730 183,208 Tipton Green &c. Co. v. Tipton Moat &c. Co., 7 Ch. D, 192 ; 47 L. J. Ch. 152 ; 26 VV. R. 348 399 Tiverton &c. Co. v. Loosemure, 9 App. 480 ; 53 L. J. Ch. 812 ; 50 L. T. 637 ; 32 W. R. 929 92, 299, 471 Todd V. Robinson, 12 Q. B. D. 530; 53 L. J. Q. B. 251; 50 L. T. 298; 32W. R. 858 278 Tod-Heatley v. Benham, 40 Ch. Div. 8o ; 58 L. J. Ch. 83 ; 60 L. T. 241 ; 37W. R. 38 311 Toleman v. Purthnry, L. R. 7 Q. B. 344 ; 41 L. J. Q. B. 98 ; 26 L. T. 292 ; 20 W. K. 441 276 Toilet V. T., 2 P. W. 489 551,552 Tolson V. Sheard, 5 Ch. Div, 19 ; 46 L. J. Ch. 815 ; 36 L. T. 756 ; 25 W. R. 667 474 Tomkins v. Colthurst, 1 Ch. D. 626 ; 33 L. T. 591 ; 24 W. R. 267 .. 183, 184 Tomlin v. Luce, 41 Ch. D. 573 ; 60 L. T. 818 ; 37 W. R. 490 .. ..396 CIV TABLE OF CASES. PAGE Tomlin v. Luce, 43 Cb. Div. 191 ; 59 L. J. Cli. 1G4 ; 02 L. T. 18 ; 38 W. R. 323 396, 442, 466 Tomlin's Case, 1 Ch. (98) 104 ; 67 L. J. Ch. 11 ; 77 L. T. 521 ; 46 W. R. 171 515 Tumliuson, Me, 1 Ch. (98) 232 ; 67 L. J. Cb. 97 ; 78 L. T. 12 ; 46 W. R. 299 47, 301 V. Broadsmitb, 1 Q. B. (96) 386 ; 05 L. J. Q. B. 308 ; 74 L. T. 265 ; 44 W. \{. 471 607 V. Liigh, 14 W. K. 121 ; 13 L. T. 516 ; 11 Jur. N. S. 962 .. 544 Tomson V. Judge, 3 Drew. 306 523,524 Tcpham V. Booth, 35 Ch. D. 607 ; 56 L. J. Ch. 812 ; 57 L. T. 170 ; 35 W. R. 715 434 V. Greenside &c. Co., 37 Ch. D 281 ; 57 L. J. Cb. 583 ; 58 L. T. 274 ; 36W. R. 464 381 V. Portland (D. of), 5 Ch. 40; 39 L. J. Ch. 259; 22 L. T. 851 ; 18W. R. 235 562,568 Torrance v. Bulton, 8 Ch. 118 ; 42 L. J. Ch. 177 : 27 L. T. 738 ; 21 W. R. 134 472, 475 Tottenham D. C. v. Williamson, 2 Q. B. (96) 353; 65 L. J. Q. B. 591; 75 L. T. 238 ; 44 W. H. 676 309 Towerson v. Jackson, 2 Q. B. (91) 484 ; 61 L. J. Q. B. 36 ; 65 L. T. 332 ; 40W. R. 37 395 Townend" v. Toker, 1 Ch. 446 ; 35 L. J. Ch. 608 ; 12 Jur. N. S. 477 ; 14 L. T. 531 ; 14 W. R. 806 27 'I'ownley v. Bedwell, 14 Ves. 591.. .. .. .. .. .. .. 95 Towusend, Ite, 1 Ch. (95) 716; 04 L. J. Ch. 334; 72 L. T. 321: 43 AV. R. 392 39 Townshend v. Stangroom, 6 Ves. 328 ,. .." .. .. .. .. 456 Trade &c. Co. v. Middlesborongh &c. Assn., 40 Cb. Div. 425 ; 58 L. J. Ch. 293 ; 60 L. T. 681 ; 37 W. R. 337 ' .. .. 342 Tree V. Bowkett, 74 L. T. 77 349 Trego V. Hunt, A. C. (96) 7; 65 L. J. Ch. 1 ; 73 L. T. 514 ; 44 W. R. 225 614, 615 Trench V. Harrison, 17 Sim. Ill ,. .. .. ,. .. .. 156,157 Trestrail v. Mason, 7 Ch. D. 655 ; 47 L. J. Ch. 249 ; 26 W. R. 260 .. .. 188 Trethevvy i;. Helyar, 4 Ch. D. 53 ; 46 L. J. Ch. 125 183 Trevaliou v. Anderton, 66 L." J, Q. B. 230 598 Trevor V. Hutchius, 1 Ch. (96) 844; 65 L. J. Ch. 738; 74 L. T. 470; 44\V. R. 417 180,181 V. , 76L. T. 630 172,173 Trimmer v. Danby, 25 L. J. Ch. 424 202 Trini ad &c. Co. v. Coryat, A. C. (96) 587 ; 65 L. J. P. C. 100 ; 75 L. T. 108 ; 45 W. R. 225 75, 76 Triquet V. Thornton, 13 Ves. 345 107 Trott V. Buchanan, 28 Ch. D. 446 ; 54 L. J Ch. 678 ; 52 L. T. 248 ; 33 W. R. 339 186 Trotter v. Maclean, 13 Ch. D. 574; 49 L. J. Ch. 256; 42 L. T. 118; 28W. R. 244 297 Trovvell v. Shenton, 8 Ch. D. 318; 47 L. J. Ch. 738; 38 L. T. 369; 26 W. R. 837 27 Trumper v. T., 14 Eq. 295; 41 L. J. Ch. 673 420 V. — , 8 Ch. 870 ; 42 L. J. Ch. 041 ; 29 L. T. 86 ; 21 W. R. 692 35, 420 Tubbs V. Broadwood, 2 R. & M. 487 156 V. AVynne, 1 Q. B. (97) 74 ; 66 L. J. Q. B. 116 483 Tuck V. Priester, 19 Q. B. Div. 629 ; 56 L. J. Q. 13. 553 ; 36 W. R. 93 345, 350 Tucker, Re, 3 Ch. (94) 429 ; 03 L. J. Ch. 737 ; 71 L. T. 453 43, 434, Oil, 029 V. Bennett, 38 Ch. Div. 1 ; 57 L. J. CIj. 507 ; 58 L. T. 050 18, 540, 542 TABLE OF CASES. CV PAGE Tucker v. New Brunswick &c. Co., 44 Ch. Div. 249 ; 59 L. J. Ch. 551 ; 63 L. T. 69 ; 38 W. R. 741 28?, 537 ■ 'V. Vowles, 1 Ch. (93) 195; 62 L. J. Ch. 172; 67 L. T. 763; 4l'W.R. 156 289 Tuff, Be, 19 Q. B. D. 88 ; 56 L. J. Q B. 440 ; 56 L. T. 573 ; 35 W. R. 567 229, 606 Tugwell, Be, 27 Ch. D. 309 ; 53 L. J. Ch. 1006 ; 51 L. T. 83 ; 33 W. R. 132 100, 106 Tulk w. Moxhav, 2 Ph. 774 288 Tunno, Be, 45 Ch. D. 66 ; 59 L. J. Ch. 573 ; 63 L. T. 23 ; 38 W. R. 636 192, 193 Turner, Be, 28 Ch. Div. 205 ; 54 L. J. Ch. 690 ; 52 L. T. 70 ; 33 W. R. 265 564, 565, 566 -, i?e, 66 L. T. 758 125 , Be, 1 Ch. (97) 536 ; 66 L. J. Ch. 282 ; 76 L. T. 116 ; 45 W. R. 495 62, 69 V. Buck, 18 Eq. 301 ; 43 L. J. Ch. 583 ; 22 W. R. 748 .. .. 196 V. Collins, 7 Ch. 329 ; 41 L. J. Ch. 558 ; 25 L. T. 779 ; 20 W. R. 305 521 533 V. Green, 2 Ch. (95) 205 ; 64 L. J. Ch. 539 ; 72 L. T. 763 ; 43 W. R. ' 537 472,516 V. Hancock, 20 Ch. Div. 303; 51 L. J. Ch. 517 ; 46 L. T. 750; 30 W. R. 480 448 V. Wright, 2 D. F, & J. 234 307 Turney V. Bayley, 4 D. J. & S. 332 605 Tiirnock v. Sartoris, 43 Ch. Div. 150 ; 62 L. T. 209 ; 38 W. R. 340 .. .. 590 Turton v. T., 42 Ch. Div. 128 ; 58 L. J. Ch. 677 ; 61 L. T. 571 ; 38 W. R. 22 335 Tussaud, Be, 9 Ch. Div. 363 ; 47 L. J. Ch. 849 ; 39 L. T. 113 ; 26 W. R. 874 137, 143, 152 V. T., 44 Ch. D. 678 ; 59 L. J. Ch. 631 ; 62 L. T. 633 ; 38 W. R. 503 336, 615 Tweedale, Be, 2 Q. B. (92) 216 ; 61 L. J. Q. B. 505 ; 66 L. T. 233 .. .. 21 'I'weedie, Be, 27 Ch. D. 315 ; 54 L. J. Ch. 71 ; 33 W. R. 133 .. .. 104, 105 Twining V. Morrice, 2 Bro. C. C. 326 467 V. Powell, 2 Coll. 262 130,133 Twycross v. Grant, 4 C. P. Div. 40 ; 48 L. J. C. P. 1 ; 39 L. T. 616 ; 27W. R. 87 534 Tyler, Be, 3 Ch. (91) 252 ; 60 L. J. Ch. 686 ; 65 L. T. 367 ; 40 W. R. 7 .. 8 V. Yates, 6 Ch. 665 ; 40 L. J. Ch. 768 ; 25 L. T. 284 ; 19 W. R. 909 520 Tyndall r. Castle, W. N. (93) 40 289 Tyrrell v. Painton, P. (94) 151 ; 70 L. T. 453 ; 42 W. R. 343 524 V. , 1 Q. B. (95) 202 ; 64 L. J. P. D. & A. 33 ; 71 L. T. 687 ; 43 W. R. 163 427 Tyser v. The Shipowners Syndicate, 1 Q. B. (96) 135 ; 65 L. J. Q. B. 238 ; 73 L. T. 605 ; 44 W. H. 207 605 Tyssen, Be, 1 Ch. (94) 56 ; 63 L. J. Ch. 114 ; 69 L. T. 689 ; 42 W. R. 172 39 Underhay v. Read, 20 Q. B. Div, 209 ; 57 L. J. Q. B. 129 ; 58 L. T. 457 ; 36 W. R. 298 .. 395 Underwood v. Lewis, 2 Q. B. (94) 306 ; 64 L. J. Q. B. 60 ; 70 L. T. 833 ; 42W. R. 517 430 Unsley v. U., 5 Ch. Div. 887 ; 46 L. J. Ch. 854 ; 37 L. T. 52 ; 25 W. R. 733 19 Union Bk. v. Ingram, 16 Ch. D. 53; 50 L. J. Ch. 74; 43 L. T. 659; 29W.R.209 398,402,403,404 . V. . , 20 Ch. Div. 463 ; 51 L. J. Ch. 508 ; 46 L. T. 507 ; 30W. R. 375 422 CVl TABLE OF CASES. PAGE Union Bk. V. Kent, 39 Ch. Div. 238; 57 L. J. Ch. 1022; 5!) L. T. 714; 37W. R. 3(U 412,413,417 V. Mimster, 37 Ch. D. 51 ; 57 L. J. Ch. 124; 57 L. T. 877 .. 510 Union &c. Bk. v. National &c. Bk., 12 App. 53; 56 L. T. 208 .. .. 419 United Telephone Co. v. Dale, 25 Ch. D. 778 ; 53 L. J. Ch. 295 ; 50 L. T. 85 ; 32W. 11. 428 325 V. Harrison, 21 Ch. D. 720; 51 L. J. Ch. 705; 46L. T. 620; 30 W. 11. 724 322 V. London &c. Co , 26 Ch. D. 766; 53 L. J. Ch. 1158; 51 L. T. 187 ; 32 W. 11. 870 325,327 V. Sliarples, 29 Ch. D. 164; 54 L. J. Ch. 633; 52 L. T. 384 ; 33 W. R. 444 325 Univer>^al Stock Exchano;e v. Strachan, A. C. (96) 166 ; 65 L. J. Q. B. 429 ; 74 L. T. 468 ; 44 W. R. 497 10 Upmann v. Forester, 24 Ch. D. 231 ; 52 L. J. Ch. 946 ; 49 L. T. 122 ; 32 W. R. 28 339 Upperton v. Nickolson, 6 Ch. 436 ; 40 L. J. Ch. 401 ; 25 L. T. 4 ; 19 W. R. 733 461, 467, 496, 502 Upton V. Brown, 26 Ch. D. 588 ; 54 L. J. Ch. 614 ; 51 L. T. 591 ; 32 W. R. 679 627 Urch v. Walker, 3 My. & Cr. 702 38 Vallance, Be, 26 Ch. D. 353 ; 50 L. T. 574 ; 32 W. R. 918 10 Vau Duzer, He, 34 Ch. Div. 623 ; 56 L. J. Ch. 370 ; 56 L. T. 286 ; 35 W. R. 294 333 Gelder v. Sowerby &c. Society, 44 Ch. Div. 374; 59 L. J. Cli. 583; 63 L. T. 132 ; 38 "W. R. 625 326,380 Gheluive v. Neriiickx, 21 Ch. D. 189 ; 51 L. J. Ch. 929 ; 47 L T 46 ; 30 W. R. 789 170 • Grutten v. Foxwell, A. C. (97) 658 ; 66 L. J. Q. B. 745 ; 77 L. T. 170 30, 39 Vane V. Barnard (Lord), 2 Vern. 738 307 V. Fletcher, 1 P. W. 352 552 (B.) V. Ri?.len, 5 Ch. 663 ; 39 L. J. Ch. 797 ; 18 W. R. 1092 .. .. 210 V. v., s Cii. 383 ; 42 L. J. Ch. 299 ; 28 L. T. 320 ; 21 W. R. 252 .. 81 Vansittart, Be, 1 Q. B. (93) 181 ; 62 L. J. Q. B. 277 ; 67 L. T. 592 ; 41 W. R. 32 22 Vardon, Be, 31 Ch. Div. 275 ; 55 L. J. Ch. 259 ; 53 L. T. 895 ; 34 W. R. 185 117, 118, 225 Vaughan, Be, 33 Ch. D. 187 ; 55 L. T. 547 ; 35 W. R. 104 8 v. Vanderstegen, 2 Dr. 363, 408 234,431 Vawdrey v. Simpson, 1 Ch. (96) 166 ; 65 L. J. Ch. 369 ; 44 W. R. 123 .. 589 Venables v. Baring, 3 Ch. (92) 527 ; 61 L. J. Ch. 609 ; 67 L. T. 110; 40 W. R. 699 414 Venn, Be, 2 Ch. (94) 101 ; 63 L. J. Ch. 303 ; 70 L. T. 312 ; 42 W. R. 440 178, 179 Venner v. M'Dtmell, 1 Q. B. (97) 421 ; 66 L. J. Q. B. 273 ; 76 L. T. 152 ; 45 W. R. 267 299 Vernon, Be, 33 Ch. Div. 402; 56 L. J. Ch. 12; 55 L. T. 416; 35 W. R. 225 9,413 V. V. of St. James, Westminster, 16 Ch. Div. 449 ; 44 L. T. 229 ; 29 W. R. 222 311 Viant V. Cooper, 76 L. T. 768 564 Vibart v. Coles, 24 Q. B. Div. 364 ; 59 L. J. Q. B. 152 ; 62 L. T. 551 ; 38 W. R. 359 179 Vickers, Be, 37 Ch. D. 525 ; 57 L. J. Ch. 738 ; 58 L. T. 920 ; 36 W. R. 545 132, 134 TABLE OF CASES. CVU PAGE Vickers V. v., 4 Eq. 529 ; 36 L. J. Ch. 946 470 Victoria Steamboats, Be, 1 Ch. (97) 158 ; 66 L. J. Ch. 21 ; 75 L. T. 374; 45 W. E. 135 402 Vince, Be, 2 Q. B. (92) 478 ; 61 L. J. Q. W. 836 ; 67 L. T. 70 ; 41 W. R. 138 606 Vine V. Ealeigh, 2 Ch. (91) 13 ; 60 L. J. Ch. 675 58,102 V. , 1 Ch. (96) 37 ; 65 L. J. Ch. 103 ; 73 L. T. 655 ; 44 W. R. 169 58 Vipont v. Butler, W. N. (93) 64 40 Von-Brockdorff v. Malcolm, 30 Ch. D. 172 ; 55 L. J. Ch. 121 ; 53 L. T. 263 ; 33 W. R. 934 39 Heyden v. Neustadt, 14 Ch. Div. 230; 50 L. J. Ch. 126 ; 42 L. T. 300 ; 28 W. R. 496 325 Joel V. Hornsev, 2 Ch (95) 774 ; 65 L. J. Ch. 102 ; 73 L. T. 372 .. 317 Vyse V. Foster, 8 Ch. 309 ; 27 L. T. 774 ; 21 W. R. 207 .. .. 47, 65 V. , L. R. 7 H. L. 318 ; 44 L. J. Ch. 37 ; 23 W. R. 355 .. 47, 65, 620 625, 626 Waddell v. Wolfe, L. R. 9 Q. B. 515 ; 43 L. J. Q. B. 138 ; 23 W. R. 44 .. 476 Wade, Be, 17 Ch. D. 348 ; 50 L. J. Ch. 601 ; 44 L. T. 599 ; 29 W. K. 625 .. 446 V. Wilson, 22 Ch. D. 235 ; 52 L. J. Ch. 399 ; 47 L. T. 696 ; 31 W. R. 237 423 Wade-Gery v. Handley, 3 Ch. D. 374 ; 45 L. J. Ch. 712 ; 35 L. T. 85 .. 29 Wadsworth, Be, 29 Ch. D. 517 ; 54 L. J. Ch. 638; 52 L. 'J'. 613; 33 W. R. 558 428 Wain V. Bailey, 10 Ad. & El. 616 548 Wainwright v. Miller, 2 Ch. (97) 255 ; 66 L. J. Ch. 616 ; 76 L. T. 718 ; 45 W. R. 652 566 Wait, Be, 30 Ch. D. 617 ; 54 L. J. Ch. 1172 ; 53 L. T. 336 ; 33 W. R. 930 119 Waite V. Bingley, 21 Ch. D. 674 ; 51 L. J. Ch. 651 ; 30 W. R. 698 361, 362, 363 Wake V. Cony ers, 1 Eden 331 .. .. .. .. .. .. .. 372 Walcot V. Walker, 7 Ves. 1 341 Waldo V. Caley, 16 Ves. 206 8 Waldron V. Sloper, 1 Dr. 193 413 Waldy V. Gray, 20 Eq. 238 ; 44 L. J. Ch. 394 ; 32 L. T. 531 ; 23 W. R. 676 74 Walhampton Estate, Be, 26 Ch. D. 391 ; 53 L. J. Ch. 1000 ; 51 L. T. 280 ; 32 W. R. 874 25, 26, 392, 396 Walker, ^cc par^e, 1 Dr. 508 92 , Be, 59 L. J. Ch. 386 ; 62 L. T. 449 44, 46 , Be, 60 L. J. Ch. 25 ; 63 L. T. 237 ; 38 W. R. 766 78 • , Be, 1 Ch. (92) 621 ; 61 L. J. Ch. 234 ; 66 L. T. 315 ; 40 W. E. 327 579 , Be, 45 W. R. 647 ; 2 Ch. (97) 238 ; 66 L. J. Ch. 622 ; 77 L. T. 94 18 V. Denne, 2 Ves. 170 93 V. General &c. Society, 36 Ch. Div. 777 ; 57 L. T. 574 ,. .. 411 V. Hirsch, 27 Ch. Div. 460; 54 L. J. Ch. 315; 51 L. T. 581; 32 W. H. 992 605, 614, 632 V. Jones, L. R. 1 P. C. 50 ; 35 L. J. P. C. 30 ; 14 L. T. 686 ; 14 W. R. 484 421 Wall, Be, 42 Ch. D. 510 ; 59 L. J. Ch. 172 ; 61 L. T. 357 ; 37 W. R. 779 .. 8 V. Stanwick, 34 Ch. D. 763 ; 56 L. J. Ch. 501 ; 56 L. T. 309 ; 35 W. R. 701 253 V. Taylor, 11 Q. B. Div. 102 ; 52 L. J. Q. B. 558 ; 31 W. R. 712 .. 349 Wallace v. Greenwood, 16 Ch. D. 362 ; 50 L. J. Ch. 289 ; 43 L. T. 720 107, 367 V. Universal &c. Co., 2 Ch. (94) 547 ; 63 L. J. Ch. 598; 70 L. T. 852 397 Wallingcr v. W., 9 Eij. 301 ; 22 L. T. 259; 18 W. R. 274 121 CVlll TABLE OF CASES. PAfiE Walliiigford v. Mutual Society, 5 App. 685 ; 50 L. J. Q. P.. V.) ; 43 L. T. 258 ; 2yW. 11. 81 262,535 Wallis, Re, 25 Q. B. Div. 176 ; 59 L. J. Q. B. 500; 02 L. T. 674 ; 38 W. R. 482 387,446 V. Hands, 2 Ch. (93) 75 ; 62 L. J. Ch. 586 ; 68 L. T. 428 ; 41 W. II. 471 558 V. Smith, 21 Ch. Div. 243 ; 52 L.J. Ch. 145 ; 47 L. T. 389 ; 31 W. K. 214 258,259,260 AValmsley V. Child, 1 Yes. Sen. 341 551 AValroud v. Rosslyn, 11 Ch. D. 640; 48 L. J. Ch. 602 87 Walsh I'. Gladstone, 1 Pli. 290 8 I'. Wason, 8 Cli. 482 ; 42 L. J. Ch. 676 ; 28 L. T. 457 ; 21 VV. R. 554 221 Walter v. Everard, 2 Q. B. (91) 369; 60 L. J. Q. B. 738; 65 L. T. 443; 39 W. R. 676 ; 518 V. Howe, 17 Ch. D. 708 ; 50 L. J. Ch. 621 ; 44 L. T. 727 ; 29 W. R. 776 342,343 -V. Steinkopff, 3 Ch. (92) 489; 61 L. J. Ch. 521; 67 L. T. 184; 40 W. R. 599 339,340,343,346 Walters v. W., 18 Ch. D. 182 ; 50 L. J. Ch. 819 ; 44 L. T. 769 ; 29 W. R. 888 179 V. Woodbridge, 7 Ch. Div. 504 ; 47 L. J. Ch. 516 ; 38 L. T. 83 ; 26W. R. 409 39 Want V. Stallibrass, L. R. 8 Ex. 175 ; 42 L. J. Ex. 108 ; 29 L. T. 293 ; 21 W. R. 685 401 Ward V. Carttar, 1 Eq. 29 400 V. Duncombe, A. C. (93) 369 ; 62 L. J. Ch. 881 ; 69 L. T. 121 ; 42W. R. 59 51,75,76,383,415,416 V. National Bk. of New Zealand, 8 App. 755 ; 52 L. J. B. C. 65 ; 49 L. T. 315 576,584 w. Turner, 2 Ves. Sen. 431 203 ■ V. Wolverhampton &c. Co., 13 Eq. 243 ; 41 L. J. Ch. 308 ; 25 L. T. 487;20W. R. 85 462 Ware V. Egmont, 4 D. M. & G. 460 73 W&T'mg, Ex parte, 19X^8.345 600 AVarne v. Lawrence, 34 W. R. 452 ; 54 L. T. 371 341 V. Seebohm, 39 Ch. D. 73 ; 57 L. J. Ch. 689 ; 58 L. T. 928 ; 36 W. R. 086 341,348 ^Xamer, Ex parte, 19 Yei^. 202 383 , Be, 17 Ch. D. 711 ; 50 L. J. Ch. 542 ; 45 L. T. 37 : 29 W. R. 726 .. 480 V. Jacob, 20 Ch. D. 220 ; 51 L. J. Ch. 042 ; 40 L. t. 050 ; 30 W. R. 721 396,433 Warren, Re, 26 Ch. D. 208 ; 53 L. J. Ch. 787 ; 50 L. T. 454 ; 32 W. R. 641 120 V. Davies, 2 M. & K. 49 174 V. Murray, 2 Q. B. (94) 648; 64 L. J. Q. B. 42: 71 L. T. 458; 43W. R. 3 435 V. W., 1 Bro. C. C. 305 135 V. — , 43 AV. R. 490 ; 72 L. T. 028 198 Warriner v. Rogers, 16 Eq. 340 ; 42 L. J. Ch. 581 ; 28 L. T. 863 ; 21 W. R. 766 11,12,15 Wassell V. Leggatt, 1 Ch. (96) 554 ; 65 L. J. Ch. 240 ; 74 L. T. 99 ; 44 W. R. 298 226 Watererr;. W., 15 Eq. 402; 21 W. R. 508 615 Waterman v. Ayies, 39 Ch. Div. 29 ; 57 L. J. Ch. 893 ; 59 L. T. 17 ; 37 W. R. 110 333 Waters, i?e, W. N. (89) 39 211 , Re, 42 Ch. D. 517; 58 L. J. Ch. 750; 01 L. T. 431 ; 38 W. R. 57.. 190 TABLE OF CASES. cix PAGE Watford &c.. Ry. Co. v. L. .S; N. W. Rv. Co., 8 Eq. 231 ; 38 L. J. Cli. 449 ; 21 L. T. 81; 17 W. R. 814: .. "' 58G Watkins V. Lindsay, 67 L. J. Q. B. 302 594 V. Nash, 20 Eq. 262 ; 44 L. J. Ch. 505 ; 23 W. R. 647 .. .. 408 Watney V. Wells, 30 B. 56 G22 Watson, Ex parte, 21 Q. B. D. 301; 57 L. J. Q. B. 609; 59 L. T. 401; 36 W. R. 829 410 , i?e, W. N. (92) 192 57 , Be, I Ch. (96^ 925 ; 65 L. J. Ch. 553 ; 74 L. T. 453 ; 44 W. R. 571 195 V. Cox, 15 Eq. 219 ; 42 L. J. Cii. 279 ; 27 L. T. 814 ; 21 W. R. 310 .. 500 V. Mid- Wales Ry. Co., L. R. 2 C. P. 593 ; 30 L. J. C. P. 285 .. 594 v. Reed, 5 Sim. 431 151 V. Reid, 1 R. & M. 236 .. ... 464 V. Rodwell, 11 Ch. Div. 150 ; 48 L. J. Ch. 209 ; 39 L. T. 614 27 W. R. 265 ; 588 V. W., 33B. 574 130 Watteau v. Fenwick, 1 Q. B. (93) 346 ; 67 L. T. 831 ; 41 W. R. 222 .. 607 Watts V. W., 17 Eq. 217 ; 43 L. J. Ch. 77 ; 29 L. T. 671 ; 22 W. it. 105 92, 95 Weall, Be, 42 Ch. D. 674; 58 L. J. Ch. 713; 61 L. T. 238 ; 37 W. R. 779 48, 52 Wearherall v. Thornburgh, 8 Ch. D. 261; 47 L. J. Ch. 658; 39 L. T. 9; 26 W. R. 593 58 Weaver, Be, 21 Ch. Div. 615 ; 48 L. T. 93 ; 31 W. R. 224 251 Webb, Be, 1 Ch. (94) 73 ; 63 L. J. Ch. 145 ; 70 L. T. 318 .. .. 42, 49, 588 y. Hewitt, 3 K. & J. 438 583 V. Huahes, 10 Eq. 281 ; 39 L. J. Ch. 606 ; 18 W. R. 749 .. .. 462 V. Jonas, 39 Ch. D. 660 ; 57 L. J. Ch. 671 ; 58 L. T. 882 ; 36 W. R. 666 43 -y. Jones, 1 Cox 245 .. .. .. .. .. .. .. 187 V. Sadler, 8 Ch. 419 ; 42 L. J. Ch. 498 ; 28 L. T. 388 ; 21 W. R. 394 84 V. Smith, 30 Ch. Div. 192 ; 55 L. J. Ch. 343 ; 53 L. T. 737 207, 420, 598 Webber v. Lea, 9 Q. B. Div. 315 ; 51 L. J. Q. B. 485 ; 47 L. T. 215 ; 30 W. R. 866 454 Webster v. Petre, 4 Ex. D. 127 ; 27 W. U. 662 584 V. Southey, 36 Ch. D. 9 ; 56 L. J. Ch. 785 ; 56 L. T. 879 ; 35 W. R. 622 8 Weeding, Be, 2 Ch. (96) 364; 6o L. J. Ch. 743; 74 L. T. 651; 44 W. R. 556 192 Weekes, Be, 1 Ch (97) 289 ; 66 L. J. Ch. 179 ; 76 L, T. 112 ; 45 W. R. 265 9,552 Wegg-Prosser v. Evans, 1 Q. B. (95) 108 ; 64 L. J. Q. B. 1 ; 72 L. T. 8 608, 609 Weir V. Bell, 3 Ex. Div. 238 ; 47 L. J. Ex. 704 ; 38 L. T. 929 ; 26 W. R. 746 513 515 WeLlon v. De Batlie, 14 Q. B. Div. 339 ; 54 L. J. Q. B. 113 ; 53 L. T. 520 ; ' 33 W. R. 328 230 Wellby i;. Still, W. N. (93) 91 387 Wellcome, Be, 32 Ch. D. 213; 55 L. J. Ch. 542; 54 L. T. 493 ; 34 W. R. 453 .. .. 330 Whiles V. Middleton, 1 Cox 112 524 Wellesley v. D. of Beiufort, 2 Russ. 1 239, 240, 242, 253, 255 Wells, Be, 42 Ch. D. 646 ; 58 L. J. Ch. 835 ; 61 L. T. 588 ; 38 W. R. 229 119, 123 , Be, 43 Ch. D. 281 ; 59 L. J. Ch. 113 ; 61 L. T. 806 ; 38 W. R. 327 .. 251 , Be, 45 Ch. D. 569 : 59 L. J. Ch. 810: 63 L. T. 521 ; 39 W. R. 139 .. 181 V. Kilpin, 18 Eq. 298; 44 L. J. Ch. 184; 22 W. R. 675 .. .. 390 V. Kingston-npon-Hull, L. R. 10 C. P. 402 ; 44 L. J. C. P. 257 ; 32 L. T. 615 ; 23 W. R. 562 454 V. Maxwell, 32 B. 408 403 ex TABLE OF CASES PAGE Wenham, lie, 3 Ch. (92) 59 ; 61 L. J. Ch. 565 ; 67 L. 'W 648 ; 40 W. R. 636 . . 215 West V. Williams, 1 Cii. (99) 132 ; 68 L. J. Ch. 127 ; 79 L. T. 575 ; 46 W. 11. 362 197,419 London . 699; 59 L. T. 641 .. 480 Westmoreland &c. Co. v. Feilden, 3 Ch. (91) 15 ; 60 L. J. Ch. 680 ; 65 L. T. 428; 40 W. R. 23 171 V. Tunnicliffe, W. N. (69) 182 63 Weston t'. Collins, llJur. N. S. 190 462 V. Davidson, AV. N. (82) 28 423 V. Managers of the Metropolitan Asylum District, 9 Q. B. Div. 404 ; 51 L. J. Q. B. 399; 46 L. T. 580; 30 W. R. 623 261,262 y. Savage, 10 Ch. D. 736 ; 48 L. J. Ch. 239 ; 27 W. 1!. 654 .. .. 481 Wharton v. Masterman, A. C. (95) 186 ; 64 L. J. Ch. 369 ; 72 L. T. 431 ; 43 W. R. 449 58 Wheatley, Re, 27 Ch. D. 606 ; 54 L. J. Ch. 201 ; 51 L. T. 681 ; 33 W. R. 275 119,237 Wheaton v. Maple, 3 Ch. (93) 48 ; 62 L. J. Ch. 963 ; 69 L. T. 208 ; 41 W. R. 677 312,319 AVhee er v. Sar-cant, 69 L. T. 181 524 Whelan v. Palmer, 39 Ch. D. 648 ; 57 L. J. Ch. 784 ; 58 L. T. 937 ; 36 W. R. 587 566 Wheldale V. Partridge, 8 Yes. 227 103 Whetham v. Davey, 30 Ch. D. 574 ; 53 L. T. 501 ; 33 W. R. 925 .. 403, 620 Whistler, Re, 35 Ch. D. 561 ; 56 L. J. Ch. 827 ; 57 L. T. 77 ; 35 W. R. 662 179 Whiston, Re, 1 Ch. (94) 661 ; 63 L. J. Ch. 273 : 70 L. T. 681 ; 42 AV. R. 327 28 AVhitaker, Re, 34 Ch. Div. 227 ; 56 L. J. Ch. 251 ; 56 L. T. 34 ; 35 AV. R. 217 230 • , Re, 42 Ch. Div. 119; 58 L. J. Ch. 487; 61 L. T. 102; 37 W. R. 673 12,15 AA'hitbread, ^x ^ar^e, 19 A^es. 209 384 AVhite, Re, 33 Ch. D. 449 ; 55 L. J. Ch. 701 ; 55 L. T. 162 ; 34 W. R. 771 .. 7 , Re, 2 Ch. (93) 41 ; 62 L. J. Ch. 342 ; 68 L. T. 187 ; 41 AV. R. 683 .. 8 , Re, 1 Ch. (96) 637 ; 65 L. J. Ch. 481 ; 74 L. T. 377 ; 44 AV. R. 424 477 , Re, 1 Ch. (98) 297 ; 67 L. J. Cii. 139 ; 77 L. T. 793 ; 46 AV. R. 247 41 y. Baugh, 3 C. & F. 44 .. 61 V. City &c. Co., 42 Ch. Div. 237 ; 58 L. J. Ch. 855 ; 61 L. T. 741 ; 38 AV. R. 82 399 TABLE OF CASES. CXI PAGE Wliite V. Cox, 2 Cb. D. 387 ; 45 L. J. Ch. 085 ; 34 L. T. 418 .. .. 125 V. Lake, 6 Eq. 188 19H V. Mellm, A. C. (95) 154 ; 64 L. J. Ch. 308 ; 72 L. T. 334 ; 43 W. II. 353 320 V. Neaylon, 11 App. 171 ; 55 L. J. P. C. 25 ; 54 L. T. 688 .. .. 414 ■ V. Southend Hotel Co., 1 Ch. (97) 7G7 ; 66 L. J. Ch. 387 ; 76 L. T. 273; 45 W. E. 434 289 • V. W., 15 Eq. 247 ; 42 L. J. Ch. 288 ; 27 L. T. 752 ,. .. 538, 543 V. — , 22 Ch. D. 555 ; 52 L. J. Ch. 232 ; 45 L. T. 151 ; 31 W. E. 451 121 AVliitehead, Be, 14 Q. B. Div. 419 ; 54 L. J. Q. B. 240 ; 52 L. T. 597 ; 33 W. 11. 471 15 , Be, 1 Ch. (94) 678 ; 63 L. J. Ch. 229 ; 70 L. T. 122 ; 42 W. K. 491 .. .. 55,183 Whitehouse, Be, 9 Ch. D. 595 ; 47 L. J. Ch. 801 ; 39 L. T. 415 ; 27 W. K. 181 592 ■ , Be, 37 Ch. D. 683; 57 L. J. Ch. 161; 57 L. T. 761 ; 36 W. E. 181 33,139,196,583 Wliiteley v. Edwards, 2 Q. B. (96) 48 ; 65 L. J. Q. B. 457 ; 74 L. T. 720 ; 44 W. E. 530 233 Whiting V. Burke, 6 Ch. 342 582 Whitley V. ChaUis, 1 Ch. (92) 64 ; 61 L. J. Ch. 307 : 65 L. T. 838 ; 40 W. E. 291 .. .. 402 Whitney v. Smith, 4 Ch. 513 ; 20 L. T. 468 ; 17 W. E. 579 43 Whittaker, Be, 21 Ch. D. 657 ; 51 L. J. Ch. 737 ; 46 L. T. 802 ; 30 W. E. 787 12 V. Howe, 3 B. 383 292 V. Kershaw, 45 Ch. Div. 320 ; 60 L. J. Ch. 9 ; 63 L. T. 203 ; 39 W. E. 23 213,227,233 Whittle v. Henning, 2 Ph. 731 220,234 Whitvvharn v. Westminster &c. Co., 2 Cli. (96) 538 ; 65 L, J. Ch. 741 ; 74 L. T. 804; 44 W. E. 698 298 Whitwood &c. Co. V. Hardman, 2 Ch. (91) 416; 60 L. J. Ch. 428; 64 L. T. 716 ; 39 W. E. 433 295,296 Whyte V. W., 17 Eq. 50; 43 \.. J. Ch. 10± ; 22 W. E. 180 152 Wicks V. Scrivens, IJ. & H. 215 437 Widgery v. Tepper, 5 Ch. D. 521 ; 46 L. J. Ch. 579 ; 25 W. E. 726 .. .. 221 V. , 7 Ch. Div. 423; 47 L. J. Ch. 550; 38 L. T. 434; 26 W. E. 546 221,533 Wigg V. Nicholl, 14 Eq. 92 ; 26 L. T. 935 ; 20 W. E. 738 209 Wigram v. Buckley, 3 Ch. (94) 483 ; 63 L. J. Ch. 689 ; 71 L. T. 287 ; 43 W. E. 147 427 V. Fryer, 36 Ch. D. 87 ; 56 L. J. Ch. 1098 ; 57 L. T. 255 ; 36 W. E. 100 312 Wilcock, Be, 1 Ch. (98) 95 ; 67 L. J. Ch. 154 ; 77 L. T. 679 ; 46 W. E. 153 154 Wilcocks V. Carter, 10 Ch. 440; 32 L. T. 444; 23 W. E. 530 541 V. W., 2 Vern. 558 156 Wilcox V. Janes, 2 Ch. (97) 71 ; 66 L. .T. Ch. 525 ; 45 W. E. 474 .. .. 327 Will V. South wood, 1 Q. B. (97) 317 ; 66 L. J. Q. B. 166 ; 75 L. T. 388 ; 45 W. E. 224 616 Wilder v. Pigott, 22 Ch. D. 263; 52 L. J. Ch. 141; 48 L. T. 112 ; 31 W. E. 377 127 Wilding u. Sanderson, 2 Ch. (97) 534; 66 L. J. Ch. 684; 77 L. T. 57; 45 W. E. 675 50,473,537,543 Wiles V. Gresham, 24 L. J. Ch. 264 62 Wilkes I'. Sauuion, 7 Ch. D. 188; 47L. J. Ch. 150 399 CXll TABLE OF CASES. PAOE Wilkins, ne, 27 Ch. D. 703 ; 54 L. J. Cli. 188; 33 W. R. 42 201 ('. Ho^K, 8 Jur. N. S. 25 60 - V. Jodrell, 13 Ch. D. 5C4 ; 49 L. J. Cli. 20 ; 41 L. T. 649 ; 28 W. R. 224 199 Wilkiuhon v. Clements, 8 Ch. 96; 42 L. J. Ch. 338; 27 L. T, 834; 21 W. R. 90 462 V. Dent, 6 Ch. 339 ; 40 L. J. Ch. 253 ; 19 W. R. 611 ; 25 L. T. 142 116, 117 V. Henderson, 1 M. & K. 582 608 V. Jubeins, 16 E^i. 14 ; 42 L. J. Ch. 66»; 28 L. T. 724 ; 21 W. R. (;44 .. 358,359 V. Lindgren, 5 Ch. 570 ; 39 L. J. Ch. 722 ; 23 L. T. 375 ; 18 W. R. 961 .. .. 8 WiUey, Be, W. N. (90) 1 165 AVilliaii.s, Be, 15 Eq. 270; 42 L. J. Ch. 158 ; 28 L. T. 17 ; 21 W. R. 160 .. 170 , A'e, 54 L. T. 105 47,318 , Be, 36 Ch. D. 573 ; 57 L. J. Ch. •J64 ; 57 L. T. 756 ; 36 W. R. 34 171 , Jie, 42 Ch. Div. 93; 58 L. J. Ch. 451; 61 L. T. 58 119 , 7.'e, 40 W. R. 636 41 , Be, 2 Ch. (97) 12; 66 L. J. Ch. 485; 76 L. T. 600; 45 ^Y. R. 519 9,111 , Be, 2 Ch. (97) 144 ; 66 L. J. Ch. 543 ; 76 L. T. 646 ; 45 W. R. 627 479 0. Aylesbury &c. Ry. Co., 28 L. 'I\ 547 ; 21 W. R. 819 .. .. 490 V. Bayley, L. R. 1 H. L. 200 ; 35 L. J. Ch. 717 ; 12 Jur. N. S. 875 ; 14L. T. 802 505 V. Brisco, 22 Ch. D. 441 ; 48 L. T. 198 ; 31 W. R. 907 .. .. 455 V. Evans, 19 Eq. 547 ; 44 L. J. Ch. 319 ; 32 L. T. 359 ; 23 W. R. 466 458 V. Glenton, 1 Ch. 200 ; 35 L. J. Ch. 284 ; 12 Jur. N. S. 175 ; 13 L. T. 727 ; 14 W. R. 294 484,500,501 V. Jenkins, 1 Ch. (93) 700 ; 62 L. J. Ch. 665 ; 68 L. T. 251 ; 41 W. R. 489 172 i;. Owen, 5 My. & Cr. 303 388 V. Pinckney, 67 L. J. Ch. 34; 77 L. T. 700 .. .. 407, 412, 479 V. Spargo, W. N. (93) 100 478,479 V. Stern, 5 Q. B. Div. 409 ; 49 L. J. Q. B. 663 ; 42 L. T. 719 ; 28 W. R. 901 267 V. Stevens, L. R. 1 P. C. 352 ; 36 L. J. P. C. 21 ; 12 Jur. N. S. 952 ; 15 W. R. 409 34,35 t'. W., 33 B. 306 549 Williamson v. Barbour, 9 Ch. D. 529 ; 50 L. J. Ch. 147 ; 37 L. T. 698 .. 588 V. W., 9 Ch. 729 ; 43 L. J. Ch. 738 ; 31 L. T. 291 .. .. 477 Willis V. Howe, 2 Ch. (93) 545 ; 62 L. J. Ch. 690; 69 L. T. 358; 41 W. R. 433 81 V. Jernegan, 2 Atk. 252 587 V. Kymer, 7 Ch. D. 181 ; 47 L. J. Ch. 90 ; 38 L. T. 207 •.. .. 9 AVillmott V. Barber, 15 Ch. D. 96 ; 43 L. T. 95 ; 28 W. R. 911 459, 473, 474 Willoughby, Be, 30 Ch. Div. 324; 54 L. J. Ch. 1122; 53 L. T. 926; 33 W. R. 850 248 Wills V. Luflf, 38 Ch. D. 197 ; 57 L. J. Ch. 563 ; 36 W. R. 571 ; affd. on aj^p. (apparently) AV. N. (88) 191 402 WlUson V. Love, 1 Q. B. (06) 626; 65 L. J. Q. B. 474; 74 L. T. 580; 44 W. R. 450 259,260 Wilmer v. McNamara, 2 Ch. (95) 245 ; 72 L. T. 552; 64 L. J. Ch. 516; 43 W. R. 519 627 TABLE OF CASES. CXIU PAGE Wilmot V. Alton, 1 Q. B. (97) 17 ; 66 L. J. Q. B. 42 ; 75 L. T. 447 ; 45 W. R. 113 594 Wilson, i2e, 34 W. R. 512 ; 54 L. T. 600 177 , Re, 2 Ch. (93) 340; 62 L. J. Ch. 781 ; 68 L. T. 785 ; 41 W. R. 684 88, 615 , Re, 3 Ch. (94) 546 ; 63 L. J. Ch. 863 ; 71 L. T. 388 ; 43 W. R. 23 484, 494 V. Balcarres &c. Co., 1 Q. B. (93) 422 ; 62 L. J. Q. B. 245 ; 68 L. T. 312 ; 41 W. R. 486 607 V. Barnes, 38 Ch. Div. 507 8 V. Bury, 5 Q. B. Div. 518 ; 50 L. J. Q. B. 90 ; 44 L. T. 454 ; 29 W. R. 269 36 V. Coxwell, 23 Ch. D. 764 ; 52 L. J. Ch. 975 179, 181 V, Duguid, 24 Ch. D. 244; 53 L. J. Ch. 52 ; 49 L. T. 124; 31 W. R. 945 .. .. .. .. .. .. .. .. .. .. 552 V. Gabriel, 4 B.&S. 243!! .. .. .. . '.'. '..594 V. Greenwood, 1 Sw. 471 631 V. Hart, 1 Ch. 463 ; 35 L. J. Ch. 569 ; 12 Jur. N. S. 460 ; 14 L. T. 499 ; 14 W. R. 748 75 V. Johnstone, 16 Eq. 606 ; 42 L. J. Ch. 668 ; 29 L. T. 93 .. .. 625 V. Maddison, 2 Y. & C. 372 196 V. Metcalfe, 1 Russ. 530 403 V. O'Leary, 12 Eq. 525 ; 40 L. J. Ch. 709 ; 25 L. T. 327 ; 20 W. R. 28 ; on app. 7 Ch. 448 ; 41 L. J. Ch. 342 ; 26 L. T. 463 ; 20 W. R. 501 149 150 153 V. Queen's Club, 3 Ch. (91) 522 ; 60 L. J. Ch. 698 ; 65 L. T. 42 ; ' 40W. R. 172 316,394 -?;. Rhodes, 8 Ch. Div. 777 61 V. Thomson, 20 Eq. 459 ; 44 L. J. Ch. 527 ; 23 W. R. 744 .. .. 501 — V. Thombury, 10 Ch. 239 ; 44 L. J. Ch. 242 ; 32 L. T. 350 ; 23 W. R. 329 124 V. Turner, 22 Ch. Div. 521; 52 L. J. Ch. 270; 48 L. T. 370; 31 W. R. 438 248,251 Wilson-Stewart, i?e, 75 L. T. 381 237 Wilton V. HiU, 2 D. M. & G. 807 236 Wilts &c. Ry. Co., i?e, 2 Dr. & Sm. 552 254 Winchester (B. of) v. Mid Hants Ry. Co., 5 Eq. 17 ; 37 L. J. Ch. 64 ; 17 L. T. 161 ; 16 W. R. 72 491 Winchilsea's Trusts (E. of). Re, 39 Ch. D. 168 ; 58 L. J. Ch. 20 ; 59 L. T. 167 ; 37W. R. 77 431 Wing v. Tottenham &c. Ry. Co., 3 Ch. 740; 37 L. J. Ch. 654; 16 W. R. 1098 490 Wmslow, Re, 45 Ch. D. 249 ; 60 L. J. Ch. 20 ; 63 L. T. 485 ; 39 W. R. 120 214 Winter v. Ansou, 3 Russ. 488 489 Wintle, Re, 2 Ch. (96) 711 ; 65 L. J. Ch. 863 ; 75 L. T. 207 ; 45 W. R. 91 88, 194 Wise, Re, 17 Q. B. D. 290; 55 L. J. Q. B. 558; 54 L. T. 720 .. ..20 , Re, 1 Ch. (96) 281 ; 65 L. J. Ch. 281 ; 73 L. T. 743 ; 44 W. R. 310 57, 251 V. Piper, 13 Ch. D. 848 ; 49 L. J. Ch. 611 ; 41 L. T. 794 ; 28 W. R. 442 29 w. W., 2 J. & L. 403 37 Withall V. Nixon, 28 Ch. D. 413 ; 54 L. J. Ch. 616 ; 33 W. R, 565 .. .. 439 Witherby v. Rackham, 60 L. J. Ch. 511 ; 39 W. R. 363 222 Withinoton v. Corpn. of Manchester, 2 Ch. (93) 19 ; 62 L. J. Ch. 393 ; 68 L. T. 330 ; 41 W. R. 306 311 Witt i;. Amis, 1 B. & S. 109 205 Witten, i?e, 57 L. T. 336 246 Wittman v. Oppenheim, 27 Ch. D. 260 ; 54 L. J. Ch. 56 ; 50 L. T. 713 ; 32 W. R. 767 .389,355 h CXIV TABLE OF CASES. PAGE WoUaston v. King, 8 Eq. 165 ; 38 L. J. Ch. 392 ; 17 W. R. 041 .. 120, 121 V. Tribe, 9 Eq. 44; 21 L. T. 449 ; 18 W. li. 83 18 Wolmersbausen, A'e, as W. II. 537 ; 62 L. T. 541 583 V. Gullick, 2 Ch. (93) 514 ; 02 L. J. Ch. 773 ; 68 L. T. 753 433, 572, 573, 574, 576 Wolverhampton &c. Co. v. Cieorge. 24 Ch. D. 707 .. .. .. .. 443 Ry. Co. V. L. & N. W. Ry. Co., 16 Eq. 433 ; 43 L. J. Ch. 131 295 Wood, Be, 32 Ch. D. 517 ; 55 L. J. Ch. 720 ; 54 L. T. 932 ; 34 W. R. 788 .. 195 , Be, 2 Ch. (94) 577 ; 63 L. J. Ch. 772 106, 193 , Be, 3 Ch. (94) 381 ; 63 L. J. Ch. 790; 71 L. T. 413 57 , Be, 2 Ch. (96) 596 ; 65 L. J. Ch. 814 ; 75 L. T. 28 ; 44 W. R. 685 .. 390 , Be, 1 Q. B. (97) 314 ; 66 L. J. Ch. 69 ; 75 L. T. 387 428 V. Cooper, 3 Ch. (94) 671 ; 63 L. J. Ch. 845 ; 71 L. T. 222 ; 43 W. R. 201 316 V. Gregory, 43 Ch. D. 82 ; 59 L. J. Ch. 232 ; 62 L. T. 179 ; 38 W. R. 226 368 V. Rowcliffe, 3 Ha. 304; 2 Ph. 382 452 V. Scoles, 1 Ch. 369 ; 35 L. J. Ch. 547 ; 12 Jur. N. S. 555 ; 14 W. R. 621 627 V. Wheater, 22 Ch. D. 281 ; 52 L. J. Ch. 144 ; 47 L. T. 440; 31 W. R. 117 439 Woodin. Be, 2 Ch. (95) 309 ; 64 L. J. Ch. 501 ; 72 L. T. 740 ; 43 W. R. 615 197, 250 251 Woods, iZe, 2 Ch. (98) 211 '484 Woolcott V. Peggie, 15 App. 42 ; 59 L, J. P. C. 44 ; 61 L. T. 845 ; 38 W. R. 465 469 WooUam V. Hearn, 7 Ves. 211 456 WooUey V. Broad, 1 Q. B. (92) 806 355 _ V. , 2 Q. B. (92) 317; 61 L. J. Q. B. 808 ; 67 L. T. 67 ; 40 W. R. 596 355 V. Colman, 21 Ch. D. 169 ; 51 L. J. Ch. 854 ; 46 L. T. 737 ; 30 W. R. 769 423 Wormald v. Muzeen, 50 L. J. Ch. 776 ; 45 L. T. 115 ; 29 W. R. 795 .. .. 201 Worman v. W., 43 Ch. D. 296 ; 61 L. T. 637 ; 38 W. R. 442 43, 49 Worrasley, Be, 4 Ch. D. 665 ; 46 L. J. Ch. 102 ; 25 W. R. 141 .. .. 189 WorthingtoD V. Morgan, 16 Sim. 547 408 Wragg, ^e, 63 L. T.^219 105 Wray, Be, 36 Ch. Div. 138 ; 56 L. J. Ch. 1106 ; 57 L. T. 605 ; 36 W. R. 67 77, 80 Wri'ht V. Goff, 22 B. 207 566 — V. Hitchcock, L. R. 5 Ex. 37 ; 39 L. J. Ex. 97 325 V. Horton, 12 App. 371 ; 56 L. J. Ch. 873 ; 56 L. T. 782 ; 36 W. R. 17 381 -y. Kirhy, 23 B. 463 446 V. Lambert, 6 Ch. D. 649 ; 26 W. R. 206 56 V. Maidstone (Lord), 1 K. & J. 701 548 V. Redgrave, 11 Ch. Div. 24 ; 40 L. T. 206 ; 27 W. R. 562 ,. .. 283 . - V. Robotham, 33 Ch. D. 106 ; 55 L. J. Ch. 791 ; 55 L. T. 241 ; 34 W. R. 668 52 v. Rose, 2 Sim. & Stu. 323 99 . V. Vanderplank, 8 D. M. & G. 133 248,521,530,532 . W., 2 J. & H. 647 223 Wri-ht's Case, 7 Ch. 55 ; 41 L. J. Ch. 1 ; 25 L. T. 471 ; 20 W. R. 45 .. 515 Wrigley ^;. Sykes, 21 B. 337 175 TABLE OF CASES. cxv PAGE AVyatt, Be, 1 Ch. (92) 188 ; 61 L. J. Ch. 178 ; 65 L. T. 841 ; 40 W. R. 177 51, 75, 76, 41G AVyke V. Rogers, 1 D. M. & a 408 571,584 Wylie, Re, 2 Ch. (95) 116 ; 64 L. J. Cb. 613 ; 43 W. R. 475 231 Wylson V. Dunn, 34 Ch. D. 569; 56 L. J. Ch. 855; 56 L. T. 192; 35 W. R. 405 454,455 Wynne V. Callander, 1 Russ. 293 504 w. Tempest, W. N. (97) 43 69 Wythes, Re, 2 Ch. (93) 369 ; 62 L. J. Ch. 663 ; 68 L. T. 520 ; 41 W. R. 375 52 Yardley v. Holland, 20 Eq. 428; 33 L. T. 301 66, 193 Yates, Re, 38 Ch. D. 112 ; 57 L. J. Ch. 697 ; 59 L. T. 47 ; 36 W. R. 563 .. 381 V. Evans, 61 L. J. Q. B. 446 ; 66 L. T. 532 582 613, 627 .. 385 42 L. T. .. 607 T. 399 ; 393, 401 842; 63 311 51 582 484, 494 V. Finn, 13 Ch. D. 839 ; 49 L. J. Ch. 188 ; 28 W. R. 387 York &c. Co. V. Artley, 11 Ch. D. 205 ; 27 W. R. 704 .. Yorkshire &c. Co. v. Beatson, 5 C. P. Div. 109 ; 49 L. J. C. P. 380 455; 28 W. R. 879 V. Mullan, 35 Ch. D. 125 ; 56 L. J. Ch. 562 ; 56 L 35W. R. 593 W. R. Council v. Holmfirth U. S. Authority, 2 Q. B. (94) L. J. Q. B. 485; 71 L. T. 217 Youde V. Cloud, 18 Eq. 634; 42 L. J. Ch. 93; 22 W. R. 764 .. Young, Ex parte, 17 Ch. Div. 668; 50 L. J. Ch. 824; 45 L. T. 90 , Re, 31 Ch. Div. 168 ; 53 L. T. 837 ; 34 W. R. 84 -, Re, 2 Q. B. (96) 484; 65 L. J. Q. B. 681 ; 75 L. T. 278; 45 W. R. 96 V. Macrae, 9 Jur. N. S. 322 V. Y., 26 B. 522 .. ^ v. — , 3 Eq. 801 .. Youngs, Re, 30 Ch. Div. 421 ; 33 W. R. 604, 606 333 188 418 216 Zalinoff v. Hammond, 2 Ch. (98) 92 ; 67 L. J. Ch. 370; 78 L. T. 456 589 TABLE OF STATUTES. 13 Edwd. 1. c. 23 (Account) 585. 25 Edwd. 3. c. 5 ( „ ) 585. 31 Edwd. 3. c. 11 ( „ ) 585. 32 Hen. 8. c. 9 (Pretended Titles) 474, n. 13 Eliz. 0. 5 (Fraudulent Conveyances) 20, 21, 24, 25, 27. 27 Eliz. c. 4 (Voluntary Conveyances) 12, n., 16, 18, 25, 27. 21 Jac. 1. c. 3 (Monopolies) 321. c. 16 (Limitations) 531, 628. 12 Car. 2. c. 24 (Infants) 242. 22 & 23 Car. 2. c. 10 (Distributions) 143. 29 Car. 2. c. 3 (Frauds) 88, 128. s. 4 (Contract) 18, n., 382, 453, 572. s. 7 (Trusts) 5, 456. s. 10 ( „ ) 166. 4 Anne. c. 16 (Account) 585. 7 Anne. c. 20 (Middlesex Eegistry) 414 n. 7 Geo. 2. c. 20 (Mortgage) 378, n. 17 Geo. 2. c. 38 (Poor Rates) 171. 7 Geo, 3, c. 38 (Engravings Copyright) 350, n. 14 Geo. 3. c. 78 (Insurance) 480, n. 17 Geo. 3. c. 57 (Prints Copyright) 350, n. 39 & 40 Geo. 3. c. 98 (Thellusson Act) 57. 42 Geo. 3. c. 119 (Lottery) 10, n. 54 Geo. 3. c. 56 (Sculpture Copyright) 351. 4 Geo. 4. c. 76 (Marriage) 255, n. 9 Geo. 4. c. 61 (Licensing) 461, n. 11 Geo. 4 & 1 Will. 4. c. 46 (Power) 569. c. 47 (Fraudulent Devises) 167, 168, 170. 2 & 3 Will. 4. c. 71 (Prescription) 300, 310, n., 312-314, 319. 3 & 4 Will. 4. c. 15 (Dramatic Copyright) 349. c. 27 (Limitations) 81, n., 165, n., 197, n., 198, 215, n., 371, 435. c. 42 ( „ ) 317, 433, 434, n. c. 74 (Fines and Recoveries) 92, 107, 128, 222, 223, 389, n., 556. c. 104 (Real Assets) 86, 168-170, 183, 206, 207, 390, n. 3 & 4 Will. 4. c. 105 (Dower) 86, 114, 380. c. 106 (Inheritance) 111. 5 & 6 Will. 4. c. 65 (Lectures Copyright) 349. 6 & 7 Will, 4. c. 32 (Building Society) 411. CXVlll TABLE OF STATUTES. 1 Vict. c. 26 (Wills) 94, 112, 111, 123, n., 184, u., 552, 557. c. 28 (Liinitatious) 434, 435. I & 2 Vict. c. 110 (Judgments) 424, 425, 429. 5 & 6 Vict. c. 35 (income Tax) 198, n. c. 44 (Licensing) 461, n. c. 45 (Copyright) 339-351. c. 108 (Ecclesiastical Commissioners) 303, n. 7 & 8 Vict. c. 12 (International Copyriglit) 350, 351. 8 & 9 Vict. c. 16 (Companies Clauses) 210. c. 18 (Lands Clauses Consolidation) 92, 94, 100-103, 254, 290, n., 298, 299, 312, n., 479, n., 480, u., 483. c. 76 (Legacy Duty) 205. c. 106 (Flight of Entry) 474, n. 10 & 11 Vict. c. 17 (Waterworks) 286. II & 12 Vict. c. 99 (Inclosure) 356, n. 12 & 13 Vict. c. 26 (Lease) 558. c. 83 (Inclosure) 356, n. 13 & 14 Vict. c. 17 (Powers of Leasing) 558. 15 & 16 Vict. c. 12 (International Copyright) 350. c. 76 (Common Law Procedure) 264, 265, 277, 378, n. c. 79 (Inclosure) 356, n. 16 & 17 Vict. c. 51 (Succession Duty) 480, n. 17 & 18 Vict. c. 90 (Usury) 520. c. 97 (Inclosure) 356, n. c. 113 (Mortgage Debts, Locke King's Act) 188. c. 125 (Common Law Procedure) 279, 319. 18 & 19 Vict. c. 43 (Infants Settlement) 127, 255, n. 19 & 20 Vict. c. 97 (Mercantile Law Amendment) 62, n., 577, 629. 20 & 21 Vict. c. 31 (Inclosure) 356, n. c. 57 (Malius' A.ct) 127, 128, 220, 222. c. 77 (Probate) 550. c. 85 (Matrimonial Causes) 234. 21 & 22 Vict. c. 27 (Lord Cairns' Act) 285, 317, 326. c. 57 (Ecclesiastical Commissioners) 303, n. c. 72 (Landed Estates Court Ireland) 99. 22 & 23 Vict. c. 35 (Lord St. Leonards Act). s. 12 (Powers) 556. s. 13 (Invalid Sale) 559. ss. 14-18 (Charge of Debts) 175-177. ss. 27, 28 (Liability of Executors) 213, n., 218, n. s. 29 (Notice to Creditors) 69, 213, 217. c. 43 (Inclosure) 356, n. 23 & 24 Vict. c. 38 (Law of Property Amendment) 170, n., 199, 425. c. 126 (Common Law Procedure) 264, 266, 370. c. 127 (Solicitor) 428, 432. 24 & 25 Vict. c. 114 (Wills— Lord Kingsdown's Act) 558. c. 133 (Land Drainage) 286. 25 & 26 Vict. c. 68 (Fine Arts Copyright) 344, n., 345, n., 350, n. c. 89 (Companies) 78, 381, n., 440, 594, n., 621, n. 26 & 27 Vict. c. 87 (Savings Bank) 171, n. 27 & 28 Vict. c. 112 (Judgments) 425-427. c. 114 (Land Improvement) 42, n. 30 & 31 Vict. c. 48 (Sale of Land by Auctiou) 509. c. 69 (Real Estate (Charges) 189, 492. c. 144 (Policies of Assurance) 417. TABLE OF STATUTES. CXIX 31 Vict. c. 4 (Sale of Reversion) 520. 31 & 32 Vict. c. 40 (Partition) 101, 107, 356-370. c. 54 (Judgments Extension) 284. 32 & 33 Vict. c. 46 (Hinde Palmer's Act) 168, 181, 212. c. 62 (Debtors) 76-80, 233. 33 & 34 Vict. c. 28 (Solicitors) 505. c. 35 (Apportionment) 597. c. 56 (Limited Owners Residences) 407, u. 34 & 35 Vict. c. 43 (Ecclesiastical Dilapidations) 172. 35 & 36 Vict. c. 94 (Licensino;) 461, n. 36 & 37 Vict. c. 12 (Custody of Infants) 240. c. 66 (Judicature). s. 24 (Concurrent Administration) 2, 593, n. subs. 2 (Equitable Relief) 504, n. „ 5 (Stay of Proceedings) 265, 275, 283, „ 11 (Equity to Prevail) 570. s. 25 (Rules of Law) 2, 593, n. subs. 2 (Claim against Trustee) 165, n. „ 3 (Waste) 308. „ 5 (Mortgagor's Action to recover Land) 380. „ 6 (Assignment of Choses in Action) 420, u., 598. „ 7 (Essence of Contract) 460, 463. „ 8 (Injunctions and Receivers) 279, 286, 296, 362. „ 10 (Custody of Infants) 238. s. 34 (Assignment of Actions to Divisions) 3, 368, 371, 439, 493, 534, 587, 629. s. 76 (Application of Acts) 77, n. 37 & 38 Vict. c. 37 (Power) 569. c. 42 (Building Societies) 410, 411, n. c. 57 (Limitations) 82, 197, 198, 432-434. c. 62 (Infants Relief) 518, n. c. 78 (Vendors and Purchasers) 75, 476, 478, 479, n., 494. 38 Vict. c. 9 (Building Societies) 411, n. c. 12 (International Coi)yright) 350. 38 & 39 Vict. c. 55 (Public Health) 290, n., 310, n., 424, 479, n. c. 77 (Judicature) 170, n., 180, 191. c. 83 (Local Loans) 42, n. c. 86 (Conspiracy) 321. c. 87 (Land Transfer) 491, n., 501, n. 39 & 40 Vict. c. 17 (Partition) 107, 356-370. c. 56 (Inclosure) 356, n. c. 75 (Rivers Pollution Prevention) 312, n. 40 & 41 Vict. c. 18 (Settled Estates) 101, 102, 302, 358, n., 359, n., 559, 560, n. c. 34 (Locke King's Act, Amendment) 189, 190, 492. c. 63 (Building Societies) 411, n. 41 & 42 Vict. c. 31 (Bills of Sale) 381, 394, n. c. 54 (Debtors) 79. 44 & 45 Vict. c. 12 (Inland Revenue) 205. c. 41 (Conveyancing). s. 2 (Interpretation) 47, n. s. 3 (Contracts for Sale) 476, 479, n. s. 4 (Personal Representative conveying) 492. CXX TABLE OF STATUTES. 44 & 45 Vict. c. 41 s. 5 (Discharge of Incumbrances) 491, n. s. 6 (General words) 316, n., 470, n. s. 7 (Covenants for Title) 470, n. s. 13 (Title to Leasehold Reversion) 476, n. s. 14 (Forfeiture) 268-275, 277. s. 15 (Obligation to Transfer) 405. s. 16 (Inspection of Title Deeds) 404. s. 17 (Consolidation of Mortgages) 392. s. 18 (Leases by Mortgagee and Mortgagor) 394, 395, 476. s. 19 (Mortgagees Powers) -210, n., 378, 379, n., 393, n., 401, 402, n. s. 20 (Power of Sale) 210, n., 378. s. 21 (Conveyance and Receipts) 99, 210, n., 378, 379, n. s. 22 (Receipts) 210, n., 378, 879. s. 25 (Foreclosure or Redemption) 385, 422. s. 30 (Devolution of Trust Estates) 38, 39, 388, 492. s. 39 (Married Women) 119, 163, 236. ss. 41, 42 (Infants) 47, n. s. 43 (Maintenance) 47, 197, n., 249, 251. s. 44 (Rentcharges) 375, 424, n. s. 52 (Powers) 507. s. 54 (Receipt) 489, n. s. 55 ( „ ) 413, n., 489, n. s. 56 ( „ ) 48, n., 413, n., 489, n. ss. 58, 59 (Covenants to bind Heirs) 166, n. s. 61 (Joint Account) 397, n. s. 65 (Enlargement of Term) 480, n. s. 67 (Notice) 275, n. s. 70 (Order of Court conclusive) 470, n. c. 44 (Solicitors Remuneration) 505. c. 60 (Newspaper Libel, etc.) 342. 45 & 46 Vict. c. 38 (Settled Land) 52, 367, n. s. 2 (Definitions) 47, n. ss. 3, 4 (Powers of Tenant for Life) 361, n., 363, n. . ss. 6-13 (Leasing Powers) 508, 558. s. 17 (Sale of Minerals) 560, n. s. 19 (Concurrence) 361, n., 363. s. 21 (Application of Capital) 42, n., 102, 306. s. 22( „ „ „ ) 102, 478. s. 28 (Timber) 304. s. 31 (Contracts) 557, 558. s. 34 (Application of Capital) 103, n. s. 35 (Timber) 306. 6. 45 (Notice to Trustees) 478, 482, n. s. 52 (Forfeiture) 278. s. 54 (Protection of Purchasers) 75, n., 482, n. s. 58 (Persons with Powers of Tenant for Life) 557. ss. 59, 60 (Infants) 47, n. c. 39 (Conveyancing) 49, n., 74, 222, 405, 567. c. 40 (Musical Compositions) 349. c. 43 (Bills of Sale) 381. c. 61 (Bills of Exchange) 548, 549, 576, 607, n. c. 75 (Married Women) 11, n., 26, 64, 106, 172, 180, 184, n., 225, 226, 227-237, 248, 255, n., 380. 46 & 47 Vict. c. 52 (Bankruptcy) 191, n. TABLE OF STATUTES. CXXl 46 & 47 Vict. c. 52 s. 4 (Acts of Bankruptcy) 21, n. s. 10 (Appointment of Receiver) 285, n. s. 30 (Discharge) 67, n., 530, n. s. 37 (Debts provable) 162, 576. s. 38 (Set 0^ 594. s, 40 (Priority of Debts) 170, n. s.41( „ „ „ )546. s. 44 (Property divisible) 71, n,, 383, n. s. 47 (Voluntary Settlement) 22, 24, 27. s. 48 (Fraudulent preference) 21. s. 49 {Bond fide transactions) 616. s. 55 (Disclaimer) 481, n. ss. 93, 100 (Jurisdiction) 284. s. 102 (Courts) 24. c. 57 (Patents, etc.) ss. 4-46 (Patents) 321-328. ss. 47-61 (Registered Designs) 351-355. ss. 62-81 (Trade Marks) 328-339. ss. 82-117 (General) 321-339, 351-355. c. 61 (Agricultural Holdings) 301, n. 47 & 48 Vict. c. 14 (Married Women) 219. c. 18 (Settled Land Act) 482, n. 0. 41 (Building Societies) 411, n. c. 54 (Yorkshire Registries) 414, n., 415. c. 61 (Judicature) 444. c. 71 (Intestates Estates) 93, 390, n. 48 & 49 Vict. c. 26 (Yorkshire Registries) 414, n. c. 63 (Patents) 321-328. 49 & 50 Vict. c. 27 (Guardianship of Infants) 241, 242-247. c. 33 (International Copyright) 350. c. 37 (Patents) 321-328. 50 & 51 Vict. c. 57 (Deeds of Arrangement) 481, n. 51 Vict. c. 2 (National Debt Conversion) 55, n. 51 & 52 Vict. 0. 17 (Musical Compositions) 349. c. 42 (Mortmain) 6, n., 208, n. c. 43 (County Courts) 77, n., 83, n., 256, 439, 493, 535, 587, 629. c. 50 (Patents, etc.) ss. 1-5 (Patents) 321-328. ss. 6, 7 (Registered Designs) 351-355. ss. 8-29 (Trade Marks) 328-339. 0. 51 (Land Charges Registration) 170, n., 389, 427, 479, n., 481, n. c. 59 (Trustees) 42, 80, 165, n., 173. 0. 62 (Preferential Payments in Bankruptcy) 170, n., 171. 52 & 53 Vict. 0. 30 (Agricultural Holdings) 356, n. c. 32 (Trust Investment) 42, 200, n. c. 49 (Arbitration) 589-591, 628. 53 & 54 Vict. c. 5 (Lunacy) 106, 127, n., 367, n., 424, 487, n., 622. c. 24 (Deeds of Arrangement) 481, n. c. 29 (Intestates Estates) 55, n. c. 39 (Partnership) 84, n., 602-627, 629, n., 631, n. c. 63 (Companies) 78, 171, n., 397, n., 526, n. c. 64 (Directors Liability) 514. c. 69 (Settled Land) 427, 558. i CXXU TABLE OF STATUTES. 53 ife 51 Vici. c. 71 (Bankruptcy) 481, n., G17. 54 (& 55 Vict. c. 3 (CuKtody of Cliildren) 239. c. 21 (Savings Bank) 171, n. c. 39 (Stamp) 480, n. c. 64 (Land Regibtry, MiddlcHCx) 414, n. c. 73 (Mortmain) 6, 97, n., 209. 55 & 56 Vict. 0. 9 (Gaming) 10, n. c. 11 (Mortmain) 6, n., 94, 97, 208. c. 13 (Conveyancing) 269-275, 478, n. c. 58 (Accmiiulations) 58. 56 Vict. c. 5 (Regimental Debts) 171. 56 & 57 Vict. c. 21 (Voluntary Conveyances) 12, n., 17, 26, 27. c. 53 (Trustees) 368, 444, 499. ss. 1-9 (Investment) 42-46, 200, n., 214, 532, n. s. 11 (Retirement) 37, n., 63. s. 12 (Vesting) 37, n. ss. 13-15 (Purchase and Sale) 47. s. 16 (Married Woman) 231. s. 17 (Receipt) 48. s. 18 (Insurance) 47, n. 8. 19 (Renewing Lease) 35, n. s, 20 (Receipts) 47, n. s. 21 (Composition) 210, n. 8. 22 (Power of Survivor) 38. s. 23 (Power of Attorney) 49, n. s. 24 (Indemnity) 39, n., 59. s. 25 (New Trustees) 63. s. 26 (Vesting Order) 492, n. s. 30 ( „ „ ) 363, n. 8. 31 ( „ „ ) 358, n., 363, 365, n. s. 38 (Costs and Expenses) 448, n. s. 42 (Relief) 49, 253, 380, 396, 544, 599. 8. 44 (Sale of Minerals) 560. 8. 45 (Impounding for Breach) 66. s. 50 (Definitions) 215. c. 58 (Companies) 171, o. c. 61 (Public Authorities Protection) 311, 341. c. 63 (Married Women) 113, 226, 227-237. c. 71 (Sale of Goods) 451. c. 73 (Ecclesiastical Charity) 8, n. 57 Vict. c. 10 (Trustees) 44, 51, n., 215, 216, 560. 57 & 58 Vict. c. 30 (Finance) 93, 206, 480, n. c. 46 (Copyhold) 39, 356, n., 374, 375, 389, 479, n., 492, n. c. 47 (Building Societies) 42, 410, n., 411, n. c. 60 (Merchant Shipping) 407, n. 58 & 59 Vict. c. 25 (Mortgagees LegalCosts) 387. c. 27 (Agricultural Holdings) 301, n. 59 Vict. c. 8 (Life Assurance Companies) 599, o. 59 & 60 Vict. c. 25 (Debts) 171. c. 28 (Finance) 480, n. c. 35 (Judicial Trustees) 67. 60 & 61 Vict. c. 19 (Preferential Payments in Bankruptcy) 171, n. c. 65 (Land Transfer) 38, 86, 165, 174, n., 176, 178, 210, 211, n., 492. 61 & 62 Vict. c. 34 (Rivers Pollution Prevention) 312, n. ADDENDA. PAGE 8, n. {p) at end. Re Perrtj, affirmed in 0. A., 1 Ch. (99) 21. 64, n. (u). The High Court has jurisdiction to appoint a new trustee in place of one of unsound mind, but it may be necessary to apply to the Judge in Limacy for a vesting order. Re M., 1 Ch. (99) 79. 69, n. {qc). Re Grindey, 2 Ch. (98) 593. 76, n. (z). See Re Wasdale, 1 Ch. (99) 163. 188, n. {d). Re Ritson, affirmed, 1 Ch. (99) 128. 216, n. (mb.) A. G. v. Neio York Breioeries Co., affirmed in H. L. (99) A. C. 62. 279, n. (&). See Cummins v. Perkins, 1 Ch. (99) 16. 288, n. (e). Friary Breweries v. Singleton, 1 Ch. (99) 86. 290, n. {{). Wauton v. Coppard, 1 Ch. (99) 92. 297, n. (p). John v. John, 2 Ch. (98) 573. 311, n. (w). Fielding v. Morley Corp., 1 Ch. (99) 1. 320, n. (/). Eubluck v. Wilkinson, 1 Q. B. (99) 86. 322, n. (to). Re Owen, 1 Ch. (99) 157. 327, n. (0- After Neilson v. Belts, 5 H. L. 1, add Penn v. Bihby, 3 Eq. 308. 336, n. (r). North Cheshire Co. v. Manchester Co., affirmed in H. L. (99) A. C. 83. 416, n. (z). Re Wasdale, 1 Ch. (99) 163. 436, n. (p). After Mellersh v. Brown, add, see however Charter v. Watson, 1 Ch. (99) 175. 490 n (n l'^^^^ ^' ^^^ff^"'^' affirmed in C. A., 1 Ch. (99) 5. 467, n. (h). Wauton v. Coppard, 1 Ch. (99) 92. 480, n. (I). A. a. v. Beech, (99), A. C. 53. 508, n. Ig). Be Nourse, 1 Ch. (99) 63. A COMPENDIUM OF MODERN EQUITY. CHAPTEE I. INTRODUCTORY OBSERVATIONS ON THE NATURE OF EQUITY. The term " Equity " in its larger and popular signification Definition, is synonymous with " natural justice ; " but in its technical ^^'^' and more limited signification, and as distinguished from Common Law, it may be defined as that system of law which, prior to the commencement of the Judicature Acts, was administered by the High Court of Chancery. Strictly speaking, it was not a system, although it is convenient so to describe it. It was rather in the nature of a suj^plement to make good the defects of, and in some respects to override and control the Common Law. The rules of Common Law were all supposed to be, and for the most part they were, founded on and consonant with natujal justice or equity. But they were devoid of elasticity. They had sprung out of, and they even in modern times continued to be in some measure adapted only to conditions which had passed away ; and therefore some other system had become necessary to supplement and correct the same. The essential difierence between the two systems consisted, Difference prior to the Judicature Acts, in the subject matters of iuris- ^'<^*^ween \. . „, ,. -, • T r. Common Law diction, the nature ot the remedy given, and m the forms and Equity, and modes of procedure, — an action at Common Law being commenced by issuing a writ, while a suit in Equity was commenced by filing a bill. As an example of the first of Example;^ these differences may be mentioned the execution of trusts 'QJ^ii'^'^'""- which, prior to the Judicature Acts, the Courts of .Common Law, with some few exceptions, refused to recognise. Again the equitable remedy for a wrongful act was, in many cases, B 2 INTRODUCTORY OBSERVATIONS. more eflfective than tbe legal remedy. The only civil remedy originally afforded hy a Court of Law in respect of the commission of a wrongful act was in the shape of damages to the injured party. The Court of Chancery, on the other hand, possessed from very early times the power to grant an injunction to restiain the commission or con- tinuance of the injury ; and this involved, in case of dis- obedience, the power to commit the offending party to prison. This remedy was, for all practical purposes, peculiar to a Court of Equity, prior to the passing of the Common Law Procedure Act 1854. Practice; — The practice in Common Law and Chancery Actions in Jud. Act, 1873. ^jjg High Court of Justice has since the Judicature. Acts been, to a considerable extent, assimilated ; but the dis- tinction between Law and Equity has by no means Ss. 24, 25. disappeared. By s. 24 of the Act of 1873 (c, 66) Law and Equity are to be administered concurrently by the High Court of Justice and the Court of Appeal. S. 25 of the same Act contains a short declaration of certain well known equitable principles, with some slight additions thereto, and amendments thereof; and concludes with a provision that " generally in all matters not hereinbefore particularly mentioned in which there is any conflict or variance between the rules of Equity and the rules of the Comnum Law, with reference to the same matter, the rules of Equity shall prevail." Divisions. The subject matters of the jurisdiction of the Court of Chancery were, before that Act, divided under the several heads of the exclusive, concurrent, and auxiliary jurisdiction; but the division is not important since the Act. In relation to all matters concerning trusts, and the administration of estates of deceased persons, in relation to its own doctrines as to the property of married women, the wardship of infants, and the care of infants' estates and to the redemp- tion and foreclosure of mortgages, and relief against penalties and forfeitures, the Court of Chancery exercised an exclusive jurisdiction. In matters of fraud, accident and mistake; in matters of account, partnership, the specific performance of agreements, the specific delivery of chattels, dower and partition, and in cases of set off and stiretyship, the Court exercised a divisum imperhim, or concurrent jurisdiction with the Courts of Law ; in the case of Bills for discovery, for NATURE OF EQUITY. 3 perpetuation of testimony, for examination de bene esse, bills of peace, and bills to establish, wills, the Court exercised an auxiliary jurisdictiou, i.e., a jurisdiction in aid of the ordinary tribunals of Law. By s. 34 of the Judicature Act, 1873, there were assigned Matters to the Chancery Division, in addition to pending causes and -issigned to matters, and causes and matters to be afterwards commenced L)i\?^i^^n^bv under Statute, giving exclusive jurisdiction to the Court of g. 34. Chancery, but subject to any rules of Court, or orders of transfer to be made under the authority of the Act, "all causes and matters for any of the following purposes ; the administration of the estates of deceased persons; the dis- solution of partnerships, or the taking of partnership or other accounts; the redemption or foreclosure of mortgages; the raising of portions or other charges on land ; the sale and distribution of the proceeds of property subject to any lien or charge ; the execution of trusts, charitable or private ; the rectification, or setting aside, or cancellation of deeds or other written instruments ; the specific performance of con- tracts between vendors and purchasers of real estates, including contracts for leases ; the partition or sale of real estates; the wardship of infants, and the care of infants' estates." In addition to claims in the actions and matters specially Common Law- assigned by tliis section, to the Chancery Division, and subject ^^^tions may to the power of transfer above mentioned, and to the altera- commenced in tions made by the Judicature Acts generally (which will be the Chancery noticed in the course of this Work), it is now competent for a plaintiff to commence in this Division, an action to enforce any other claim which, at the commencement of the Act of 1873, he might have enforced by filing a Bill in Chancery, or any legal claim which was then within the concurrent jurisdiction of the Courts of Queen's Bench, Common Pleas, and Exchequer, The Queen's Bench, Common Pleas, and Exchequer Divisions have, by Order in Council, made under the power conferred by s. 32 of the last mentioned Act, and dated the 16th December 1880, been consolidated into one Division, namely, the Queen's Bench Division, of which the Lord Chief Justice of England is President. B 2 EXECUTION OF TRUSTS. CHAPTIJR IL EXECUTION OF TRUSTS. Jurisdiction. Nature of a trust. Divisions of trusts — public and private, etc. — charitable trusts. Express trusts ; — trusts by operation of law. Definition. Section I. — Nature and requisites of a Trust ; — Different Tiinds of Trusts. The execution of trusts was one of the oldest subjects of the equitable jurisdiction of the Court of Chancery. The term trust involves the notion of the legal ownership of property being vested in one person, called the trustee, while the right to the beneficial enjoyment is in another called the cestui que trust, or beneficiary (a). As the Courts of Common Law in early times resisted the introduction of trusts relating to land — or uses, as they were at first called, — and refused to recognise any person except the trustee, as having any interest in the property, trusts were for some hundreds of years within the exclusive jurisdiction of the Court of Chancery ; and with some few exceptions, they so continued up to the time when the Judicature Acts came into operation. Trusts are divided in various ways. They are either public or private. Public trusts are those constituted for the benefit of the public, or some considerable section of the yjublic, under some particular designation or description. Private trusts are those constituted for the benefit of individuals. All trusts for charitable purposes come under the head of public trusts, and in fact form so large a proportion thereof, that practically the expressions public trusts and charitable trusts are almost convertible terms, although their meanings are different. Trusts may also be divided into express trusts, and trusts arising by operation of law. Express trusts are those created by the direct and positive acts of the parties — generally, (rt) For definition of the term, see Story on Equity Jurisprudence, s. 964 ; Ijewin on Trusts, 1 ; and compare observations of Kekewich, J., in Re Barney, 2 Ch. (92) 272. EXECUTION OF TRUSTS. 5 though not necessarily in all cases, by some instrument in writing, e.g., a will or marriage settlement. Express trusts are also divided into trusts executory and trusts executed. Trusts execu- This distinction is fully explained below. An express trlj^'tg^g^jg. trust is always created by some declaration made by the cuted. beneficial owner of the property intended to be subject thereto, that the property shall be held upon the particular trust or trusts intended (&). If it is intended to be created Trusts created by will, the will must of course be executed and attested in ^ ^^' ' accordance with the statutes relating to wills (c). Trusts of lands might formerly have been created by of lands. parol; but by the Statute of Frauds (29 Car. 2, c. 3), s. 7, pJ.fJi*," f 7. all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect. I'his Statute section of the Act applies to lands of any tenure, whether "° personal freehold, copyhold, or customary, and to leaseholds; but not chattels, nor to to any other species of personal property; nor does it apply '^^^l^ ■ ^' ^ to trusts arising by operation of law, or construction of Equity, law. A plaintiff claiming that a conveyance of lands was made Proof of nature to a defendant, upon trust, is bound, under this section, to '^^'ust. prove by some writing or writings, signed by the defendant, not only that the conveyance was made to him upon trust, but also what that trust was. It is not necessary, ho wove".', that the trusts should have been declared by writing in tao first instance. It is sufficient that the writing has been in fact signed by the defendant ; but the date of signing is immaterial {d). The statute cannot be used by a defendant to cover a Statute cannot fraudulent transaction (e) ; and it is a fraud on the part of ^^ "^'''? *" , covt^r trtiud* a person to whom land is, with his knowledge, conveyed on trust, to deny the trust, and claim the land for his own benefit (ee). (&) Kronheim v. Johnson, 7 Ch. D. 60. (c) Aston V. Wood, 6 Eq. 419 ; Re Boyes, 26 Ch. D. 531 ; Re Fleetwood, 15 Ch. D. 594. {d) Rochefoucauld v. Boustead, 1 Ch. (97) 206, CA. Compare James v. Purchase by Smith, 65 L. T. 544 (purchase by agrnt). agent. (e) Haigh v. Kaye, 7 Ch. 469 ; Childers v. G., 1 D. & J. 482 ; Davies v. Otty, 35 B. 208 ; Booth v. Turle, 16 Eq. 188 ; Re D. of Marlborough, 2 Ch. (94) 133 ; and see Ch. XV. on Specific rerformance, infra. (ee) Rochefoucauld v. Boustead, supra. EXECUTION OF TRUSTS. Section II. — Charitahle Trusts. Mortmain Assurances of land for charitable nses, and of personal ^'^^^' estate to be laid out in the purchase of land for the like uses must, in order to be valid, be or have been effected in accordance with the requirements of the Mortmain Act8(/). These Acts have no application to pure personal estate. Testamentary Until lately land or money charged upon or liable to be laid gilt ot land, Q^^^ -^ ^]^Q purchase of land, could not be given by will for charitable purposes. But by the Mortmain and Charitable Uses Act, 1891, such property may now be so given in cases where the testator has died after the 5th August, 1891 {g). Land to be By s. 5 the land must be sold within a year from the death ' of the testator, or such extended period as may be determined Power to ^ ^j^Q High Court or a Judge thereof in Chambers, or by the extend time J b o _ ' j for selling. ' Charity Commissioners ; and by s. 6, it is, in default of such Charity Com- sale, to be sold by order of the Charity Commissioners ; and nnssionevs ^j^g proceeds of Sale are to be paid to the Official Trustees of Official Charitable Funds, in trust for the charity. By s. 7, personal ^. ,. \ estate directed to be laid out in the purchase of land is to be Direction to . purchase land, held for the benefit of the charity, as though there had been Land for no such direction contained in the will ; but by s. 8, power is occuiiation. given to the High Court, or a Judge thereof in Chambers, to sanction the retaining or purchase of such land as shall be recpiired for actual occupation for the purposes of the charity. Gift before The validity of a charitable gift made by the will of a ■^'^*- person who died before the 5th August, 1891, was not affected by the trustees exercising an option to invest in real security (fjg). Charitable Charitable trusts have always been favoured in equity trusts favoured g^j^gp^ j^ qj^q respect mentioned in a later chapter (Ji). ^., , They are favoured by the adoption of a more liberal con- construction, struction than in other cases. Accordingly where there is a (/) See the Mortmain and Charitable Uses Acts, 1888 (c. 42) repealing, amonfij other Acts, 9 Geo. 2, c. 3G, except so much of s. 5 as was un- repeahd, and 1891, (c. 73); also the Amendment Act, 1892 (c. 11). (V) lie Bridqer, 1 Ch. (94) 297, C. A. Upon the question what is an " Interest in » i,iterest in hind " within the Act of Geo. 2, see Re Pickard, 3 Ch. (94) land," 7(j4^ C. A., and cases there cited ; also Ee Crosdey, 1 Ch. (97) 928. (gg) Re Hamilton, 2 Ch. (9G) 617, C. A. ; Re Hume, 1 Ch. (95) 422, C. A. (U) Ch. VIIL, s. X., on the marshalling of assets. EXECUTION OF TRUSTS. 7 gift by will to a charity ia terms indicating a general General and charitable intention, and pointing out a particular mode of '^h;,ritable carrying that intention into eifect, then if that particular purpose. mode fail, the general charitable intention will nevertheless be carried into effect, (i) even if the fund is directed to be Distribution at distributed by the executors at their discretion, (y) But if executors. the will show an intention not to give to charity in general, but simply to benefit a particular institution, and that Institution institution does not exist at the testator's death, then the gift ijeased to exist. will fail. (Ic) If, however, the institution only ceases to exist after the testator's death, and even before payment of the fund, the property will be applicable cy-pres, i.e. as near to the testator's intention as the law will permit. (J) It was held in an old leading case (wt) that a trust for Indefioita "such objects of benevolence as A. B. in his own discretion shall most approve of " could not be supported as a charitable legacy, and that there was a resulting trust for the testator's next of kin — upon the ground that where there is a gift or trust without any definite object pointed out, but merely a description of the character of the object to which the gift or trust is to be applied, and if that character is not charity, then the Court will not execute such an indefinite purpose, and it must be considered as if the legacy had been left to the legatee as a trustee, and with no trust declared, in which case he would hold it as a trustee for the next-of- kin, (n) In a case of this kind the Court will not wait and see if a person in the position of A. B. will select charitable objects or not. (o) Another instance of the favour shown to charities is that Perpetuitj'. no charitable trust can be void on the ground of per- petuity. (j?) Upon the like principle, if the income of No Resulting trust. (i) Be Ovey, 29 Ch, D. 564 ; Re Douglas, 35 Ch. Div. 472 ; Be Back, 2 Ch. (96) 735. U) Focock V. A. G., 3 Ch. D. 342; Be Piercy, 1 Oh. (98) 565, C. A. (&) Be Ovey, supra; Be White, 33 Ch. D. 449; Be Eymer, 1 Ch. (95) 19, C. A. (0 Be Slevin, 2 Ch. (91) 236. (m) Morice v. i'/s/iop of Durham, 10 Ves. 522 ; Re Piercy, 73 L. T. 732. (n) Re Douglas, 35 Ch. Div. 482. See also Neo v. N., L. R. 5 P. C. 89. (o) Re Jarman, 8 Ch. D. 584. Cp) Goodman v. M. of Saltash, 7 App. 642 ; Be Bowen, 2 Ch. (93) 491. A trust to keep a tomb in repair in perpetuity, or for an indefinite period Trust to kef™^°^^ce° f a sale of the trust property made in defeasance of the settlement. settlement; because the Court would not lend its aid to enable a person to defeat his own grant ; and also because of the difficulty in proving that the settlement might not, in fact, have been founded on valuable consideration, though ex facie voluntary, (m) Moreover a purchaser of the trust Recovery of property, upon ascertaining from the abstract or other- deposit. wise, the existence of such a settlement, could success- fully sue for a return of any deposit paid by him to the vendor. («) But a purchaser was not bound to adopt this course. He could enforce specific performance, even though he had entered into the contract with express notice of the settlement. Voluntary The power to avoid a bond fide settlement under the Statute A°t^i893 ^^ 27 Eliz. c. 4, has now been taken away by the Voluntary Conveyances Act, 1893 (c. 21) which applies to conveyances made before as well as subsequently to the passing of the Act, but not to hereditaments disposed of or dealt with before the Act, to or in favour of purchasers for value. (h) Bayspoole v. Collins, 6 Ch. 228. (z) Rosher v. Williams, 20 Eq. 210 ; Stephens v. Green, 2 Ch. (95) 148, Covenant to C. A. ; Skidmore v. Bradford, 8 Eq. 134 (obligation to pay purchase indemnify, &c. money) ; and compare MaddAson v. Alderson, 8 App. 467. See, however, Promise by Townevd v. Toher, 1 Ch. 446 (covenant to indemnify against existing infant to settle mortgages and against expenses to be incurred on faith of settlement), property on Trowell V. Shenton, 8 Ch. D. 318 (settlement in performance of promise marriage, made to intended wife by intended husband during his infancy), supra, „ e as to trusts in favour of children of a former marriage. ^}]\ ^ °^f (j) Price V. Jenki^^s, 5 Ch. Div. 620 ; Harris v. Tubb, 42 Ch. D. 79. children ot (&) Re Ridler, 22 Ch. Div. 74. *°™':'" (0 Ex parte Hillman, 10 Ch. Div. 622 ; explained in Hance v. Harding, carriage. 20 Q. B. Div. 738. (m) Levij v. Creiqhton, 22 W. R. 437 ; Peter v. Nicolls, 11 Eq. 391. («) Clarke v. Wtllott, L. K. 7 Ex. 313. 28 EXECUTION OF TRUSTS. Definition. Difference in constj'uction ; — teciimcal words. Example of executed trusts; of trusts executory. Conveyance on trust without words of inheritance. Section VII. — Executory and Executed Trusts. An executed trust is constituted where the trust is com- plete, and no act is necessary to give efifect to it. An executory trust, on the other hand, exists where some further act requires to be done by the author of the trust, or by the trustees, in order to make it effectual. The trusts declared by articles of marriage are generally executory trusts; but the corresponding provisions contained in the settlement executed in pursuance thereof will, in general, be either executed trusts or legal estates. The practical distinction is that in the case of executed trusts, the Court will put the same construction on technical words as a Court of Law would, before the Judicature Acts, have put upon legal limitations; whereas in the case of executory trusts, the intention will be regarded irrespective of the technical meaning of technical words (o.) If real estate be conveyed unto and to the use of A. and his heirs, upon trust for B. for life, and after his decease, in trust for the heirs or the heirs of the body of B., the trust is an executed trust. B. will have an equitable estate in fee simple or in tail, as the case may be, which he can dispose of by an ordinary conveyance, or by disentailing deed, without the consent of any other person. In like manner where by a settlement executed in 1845, the equity of redemption in real estate was conveyed to trustees upon trust, after the death of the settlor and his wife, for the settlor's children, without words of inheritance, it was held that the children took life estates only (p.) If, on the other hand, by marriage articles, the intended husband covenant to settle real estate to the use of himself for life, with remainder to uses to secure a jointure to the intended wife for life — with remainder to the heirs of the body of the husband — the Court, in enforcing specific performance, would have regard to the presumable intention of the parties to make a provision for the issue of the marriage, as well as for the husband and wife, and would direct the execution of a strict settlement (o) Cogan v. Duffield, 2 Ch. Div. 44 ; Grier v. G., L. K. 5 H. L. 688 ; SnckviUe-West v. Holmesdale, L. K. 4 H. L. 543; Surtees v. S., 12 Eq. 400 ; Re Winston, 1 Oh. (94) 661. (jp) lie Whidon, supra. EXECUTORY AND EXECUTED TRUSTS. 29 by means of a conveyance to the use of the husband for life, with remainder to uses to secure the jointure, with remainder to the use of the first and other sons of the marriage successively in tail, with remainder to the daughters in tail; and making the husband only tenant for life, without any power, of his own free will, to dispose of the property for any longer period (5.) Another example of the distinction now under considera- •^0'°*' tenancy, tion is that when the trust is executory, and words are used which would, prima facie, create a joint tenancy in the case of a legal limitation, but an intention can be discerned to create a tenancy in common, that intention will be carried into effect, on executing the complete settlement, by the creation of a tenancy in common, rather than a joint tenancy (r.) A trust will not, however, be considered to be executory " Settlor his for the purpose of the distinction now under consideration, °"^° convey- ^ ^ . . ancer. if the trusts are fully declared in the first instance, even although a further deed may be necessary, in order to convey or assign the property to the trustees. When this is so, the construction will be the same as in the case of a trust executed (s.) This proposition is often enunciated by saying that the trust will not be construed as executory, if the settlor has been his own conveyancer. When executory trusts are created by will, the Court will Difference be guifled solely by the words of the will, in order to arrive between ° . , 1 J- executory at the intention of the testator as to the persons or elass 01 trusts created persons he intended to benefit; whereas in the case of oy ^^'1^ ^.nd marriage articles which are executory in the strict sense articles.' (ij) Glenorchy v. Bosville, Cas. Temp. Talbot 3, and notes thereto in 2 Wh. & Tu. L. 0. Eq. 763; Holmesdale v. West, 12 Eq. 281 ; Re Johnston, 26 Ch. D. 538 ; Streatfield v. S., Cas. Temp. Talbot, 176, and 1 Wh. & Tu. L. C. Eq. 416 ; Leonard v. E. of Sussex, 2 Vem. 526 ; Surtees v. S., 12 Eq. 400 ; Thom-pson v. Fisher, 10 Eq. 207. As to the effect of the term " strict Mode of settlement " and similar expressions, and the manner in which directions settlement — to settle will be carried into effect, see Loch v. Bagley, 4 Eq. 122; '« strict settle- Thomjoson v. Fisher, supra; Stanley v. Coulthurst, 10 Eq. 259; Magrath ment." V. Morehead, 12 Eq. 491 ; Cogan v. Duffield, 2 Ch. Div. 44 ; Teasdale V. Braithwaite, 5 Ch. D. 632 ; Wise v. Piper, 13 Ch. D. 848; Ee Parrott, 33 Ch. D. 274; Nash v. Allen, 42 Ch. D. 54; Wade-Gery v. HandJey, 3 Ch. D. 374 ; Ee Ballance, 42 Ch. D. 62. As to the mode of settling personal estate, see Ee Gowan, 17 Ch. D. 778 ; and as to the construction and effect of powers to charge real estate with a jointure and portions for younger children, see Ee De Hoghton, 2 Ch. (96) 385. (r) Mayn v. M., 5 Eq. 150. (s) Tlioinpson v. Fisher, supra. 30 EXECUTION OF TRUSTS. of the term, the nature of the instrument is sufficient per se, to indicate an intention to make a provision as well for the issue of the marriage, as for the husband and wife ; and this object could not be attained if the property were to be so limited that, by the application of the rule in Shelley's Case (<) or otherwise, the husband could, without the consent of any other person, sell and dispose of the property for his own benefit (m.) Divisions ; — implied and constructive trusts ; resulting trusts. Conveyance, &c., of legal interest. Purchase in the name of a third party. Resulting trust of realty for settlor or his heir, or next of kin. Section VIII. — Implied and Besulting Trusts. Trusts arising by operation of law are generally divided under two heads, namely, implied trusts and constructive trusts. In some of the text books they are divided into resulting trusts and constructive trusts, thus treating re- sulting trusts as synonymous with implied trusts ; (o) while in others, the three terms implied, resulting, and construc- tive trusts are treated as being synonymous expressions. There are, however, some implied trusts which would not be included under the term resulting trusts ; and at least one of the usual sub-diviisions of resulting trusts appears to the Author to come under the head of constructive trusts. Eesulting trusts are generally divided into two classes; first, when a person being liimself both legally and equitably entitled, makes a conveyance, devise, or bequest of the legal estate or interest in property real or personal, and there is no ground for any inference that he meant to dispose of the equitable estate or interest, and secondly, whore a purchaser of property takes a conveyance or transfer of the legal estate or interest in the name of a third person, but there is nothing to indicate an intention of not appropriating to himself the beneficial interest, (p) Where a person makes a conveyance, assignment, devise, or bequest under such circumstances, as to show an intention that only the legal interest was intended to pass, the equitable interest, or so much thereof as is left undisposed of will result, if arising out of real estate, to the settlor or testator himself or his heir; and if arising oat of personal estate, to (t) For the origin and history of the rule in Shellei/s Case, see Van Grutten v. Foximll, 66 L. J. Q. B. 750, H. L. ; 78 L. T. 231, Q. B. D. (u) Sacliville- West v. Holmesdale, L. R. 4 II. L. 543. (o) As to precatory trusts, see supra. (p) See Lewin on Trusts, 150. BESULTINQ TBUSTS. 31 himself or his legal personal representative ; (g) e.g., if real and personal estate be devised and bequeathed upon trust to sell and convert into money, and to divide the proceeds equally between two persons one of whom (a stranger in blood) dies in the testator's lifetime ; then in absence of any other disposition by the testator, one moiety of the net proceeds of the real estate would lapse in favour of the heir of the testator ; and one moiety of the personal estate in favour of the statutory next-of-kin. As there must, in such case, be a When lapsed sale of the real estate, the heir would take as personalty the l^^]}'l *'^' §<* J^ •' to heir as undisposed of moiety of the proceeds of the real estate ; so personalty. that in case of his death before receiving it, it would pass to his executor or administrator ; (r) whereas if both (not being children or other issue of the testator) were to die in the lifetime of the testator, no sale would be required ; but the real estate would devolve upon the heir according to its actual quality. The distinctive feature of this case is that Distinction it is one of lapse by death in the testator's lifetime. If both of kpsTamrof legatees survived the testator, but one died before the sale constructive of the real estate, his share as well of the proceeds of sale of conversion. the real estate, as of the personal estate, would pass to his legal personal representative, as part of his personal estate, under the equitable doctrine of constructive conversion, (s) The difference between this case and that first supposed is that in this the gifts have both taken effect, and become vested gifts ; and though one of the legatees hfis died before the Bale, his share would pass to his legal personal representative ; whereas, in the case first put, the gift as to one moiety altogether failed. A recent decision before the Court of Appeal should be Cunnack v. here noticed, namely, Cunnack v. Edwards, (ss) In this case jJ^aTacawfe'a a society was, in 1810, established to raise a fund, by the subscriptions, fines, and forfeitures, payable and to be in- curred by its members, to provide annuities for the widows of its deceased members ; and it was afterwards brought (q) Ackroyd v. Smithson, 1 Bro. C. C. 503 and 1 Wh. & Tu. L. C. Eq. 372 ; Sykes v. 8., 3 Ch. 301 ; Re Scott, 1 Ch. (91) 298. (r) Re Richerson, 1 Ch. (92) 379. (s) Fletcher v. Ashburner, 1 Bro. C. C. 497; and see Cliap. III. on Conversion, s. iii., and Chap. IV. on Keconversion, s. i. The former section treats of the case of a resulting trust arising from failure of a trust for conversion contained in a deed. (ss) 2 Ch. (96) 679. Compare Re Buck, ib. 121: Re Newberry, 5 Ch. D. 746 ; Simmons v. Pitt, 8 Ch. 978 ; Re Jones, 2 Ch. (98) 83 (scientific society). 32 EXECUTION OF TRUSTS. within the provisions of the Friendly Societies Act, 1829. The last member of the society died in 1878, and the last* •widow-annuitant died in 1892, when the society had a surplus or unexpended fund of £1250. It was held that there was no resulting trust in favour of the legal personal representatives of the members of the society; that the society was not a charity, and therefore the unexpended fund was not applicable cy pres to charitable purposes, but passed to the Crown as bona vacantia. Resulting If property whether real or personal be conveyed or trust for assigned to trustees in trust to pay the grantor's debts, then, debtor under ,° rj& creditors' deed, if any surplus be left after paying the debts m full, there will, as a rule, be a resulting trust for the grantor, or for his real or personal representatives after his death ; but in a Terms of deed recent case (i), where the trust declared by a deed of assign- nega iving. j^gj^t which recited the inability of the grantors to pay their creditors, was to pay and divide the money realised among the creditors in rateable proportions, according to the amount of their respective debts, it was held that there was no resulting trust, because the deed itself provided for the disposal of the whole trust fund. Declaration A declaration by a testator excluding his heir at law from excluding taking his real estate is void, unless the property be given Fitch V. Weber; to some other person. In Fitch v. Weher, {t a^ a testatrix directed her trustees to stand possessed of the proceeds of sale of her real estate directed to be sold " as a fund of personal, and not real estate," and declared " that such proceeds, or any part thereof, shall not, in any event, lapse or result for the benefit of my heir at law." It was held by Wigram, V.-C, that the heir was entitled to the proceeds of the testatrix's real estate which, in the events which had happened, were undisposed of by her will, (t h) excluding next A like principle applies to a declaration excluding a of kin. testator's next of kin ; but a declaration that in the event of an intestacy arising from the failure of any of the objects of his bounty, some only of his next of kin shall, to the exclusion of persons named, take the benefit of the lapse, is good, {t c) (0 Smith V. Cooke, A. 0. (91) 297. (ta) 6 Ha. 145. (t b ) Compare Court v. BucJdand, 1 Cb. D. 605. (tc) Bund V. Green, 12 Ch. D. 819. EESULTINO TRUSTS. 33 Where property whether real or personal has been pur- Presumption chased in the name of a person other than the person who pm^hase ia has advanced tlie purchase-money, the beneficial interest the name of will, in general, be construed to belong to the person "^ pai'ty. who has actually advanced the money (m). This is the liable to be equitable presumption ; but it is liable to be rebutted by ^^ '^"^ * parol or other evidence, e.g., of acts or declarations done or made by the real purchaser, at or before the conveyance, showing that he intended the nominal purchaser to take for his own benefit (v). If, however, a purchase or conveyance ii^gcja]^^ be made with a view to defeat the policy of an Act of purpose. Parliament, or for any other unlawful purpose, there will be no resulting trust ; but the legal owner of the property will be deemed to be the equitable owner also (to). Where the purchase is taken by a father in the name of Purchas« in his child, there will, as a rule, be no trust in favour of the ^^'"^ ^\ '^^'^^'^^ . &c. — advance- real purchaser ; but the child in whose name the conveyance ment. or other assurance has been taken, will be held to take the property as an advancement, (x) The like principle applies to a purchase in the name of any person to whom the real purchaser has placed himself in loco parentis. This also is a Evidence to presumption of Equity, and parol or other evidence is rebut pre- admissible to rebut it. (jf) When the nominal purchaser is a stranger in blood to the real purchaser, the ontts jprofeamiz" Onus probandi that a gift was intended is on the former, whereas if he be a child or a person to whom the real purchaser has placed himself in loco parentis, the onus probandi that a trust was intended is upon him (the real purchaser). Evidence of Declarations of acts, or declarations, parol or otherwise, on the part of the J^K *^''th*^ ' father or other person at or before the time of the convey- purchase. ance tending to show that a trust was intended, is admissible, but not of those made at a subsequent period, unless they were made so soon afterwards as to amount to part of the same transaction. When, however, any evidence shall have Subsequent been adduced on behalf of the father to establish a trust, declarations, &c. (w) Dyer v. D., 2 Cox, 92 ; and see notes thereto in 2 Wh. & Tu. L. C. Eq. 803. (v) Batstone v. Salter, 10 Ch. 431 ; Fowkes v. Pdscoe, ib. 343 ; Standing V. Bowring, 31 Ch. Div. 282. (w) Childers v. C, 1 D. & J. 482 ; but see Davies v. Otty, 35 B. 208. See also supra as to unlawful trusts. (a;) Dyer v. D., 2 Cox, 92; Hepworth v. H., 11 Eq. 10; Be Wtiitehouse, 37 Ch. D. 690. (2/) Stock V. McAvoy, 15 Eq. 55 ; Be Wliitehouse, 37 Ch. D. 690. D 34 EXECUTION OF TBUSTS. then evidence of his acts or declarations as well after as at or before the conveyance is admissible to prove an advance- Declarations of ment. So also if any evidence be adduced on behalf of the* child tending to establish an advancement, it may be rebutted by acts or declarations of the child before, at, or after the conveyance. (2) It would appear that the principles applicable to a purchase by a father in the name of a child do not apply where the purchase is made by a widowed mother ; but the authorities on this head are conflicting, (a) A purchase by a husband in the name of his wife will be deemed to be made by way of gift, unless it either appear by the attendant circumstances, or it be proved by rebutting evidence, that a trust was intended, (fc) child to prove trust. Purchase by mother. Purchase in name of a wife Definition. Vendor and purchaser. Mortgagee in possession. Advantage gained by- trustee — lease to himself. Lease obtained by tenant for life, &c. Section IX. — Constructive Trusts. A constructive trust is that which is raised by construe tion of Equity, in order to satisfy the demands of justice. More than one example of constructive trusts arises out of the relation of vendor and purchaser. A mortgagee in possession is also somewhat in the nature of a constructive trustee towards the mortgagor. These cases will be dealt with in subsequent parts of this work, (c) So also where a trustee or person in a fiduciary relation gains some advantage to himself from his position, e.g. if by virtue thereof a trustee obtain a lease to be granted to himself. In such a case he will not be allowed to retain the lease or other advantage to himself; but it will enure for the benefit of the trust, and belong to the persons .entitled thereunder, (d) This rule applies even if the only beneficiary is an infant to whom the lessor has refused to grant the lease in question, (e) A like rule applies where a tenant for life or other person in a like position procures a renewal of a lease of settled property, (z) CMlders v. C. ; Stock v. McAvoy ; Fowkes v. Fascoe ; Standing v. Bowring, supra. (a) Sayre v. Hughes, 5 Eq. 376; Bennet v. B., 10 Cli. D. 474. (b) Marshal v. Crutwell, 20 Eq. 329; Ee Eykyn, G Ch. D. 115; Thornley V. T., 2 Ch. (93) 234. (c) See Chapters on Mortgages and on Specific Performance, infra, id) Bagnall v. Carlton, 6 Ch. Div. 406. (e) Keech v. Sandford, Select Cases in Chancery, 61 ; and see notes thereto in 2 Wh. & Tu. L. C Eq. 693; Be Morgan, 18 Ch. Div. 93; Sugden V. Crossland, 3 Sm. & G. 192; Be Smith, 1 Ch. (96) 71; Williams v. Stevens, L. R. 1 P. 0. 352. CONSTRUCTIVE TRUSTS. 35 or purchases the reversion expectant thereon. The renewed lease or the reversion, as the case may "be, will be subject to the trusts and rights applicable to the original lease. (/) But the renewed lease or the inheritance of the property Charge for purchased will be charged with its proper proportion of the rgnewaTor expenses of renewal, or of the moneys applied in purchasing purchase the reversion. ( ,., , , /x ,, nor equitable, upon a contributory mortgage ; (y) nor upon a mortgage to ggg^^j ^q^. secure the retransfer of stock ; {w) and even when he makes tributory, or an investment on authorised securities, he must exercise his ^'^°*^; . . . mortgage. judgment and discretion as to the propriety of making it „. , . under the circumstances, (x) He is not in general justified in investing upon securities attended with hazard, (?/) e.g., UnfiDished unfinished houses. But a distinction must be here noticed * ' between the case of an original investment, and one where a trustee has to consider whether he ought to get rid of a security of a kind on which he was aiithorised to invest. The retention of a mortgage exceeding the limit of two- thirds mentioned below is not necessarily a breach of trust ; nor will a trustee be liable for retaining an authorised security in a falling market, if he do so honestly and prudently, and in the belief that it is the best course to take in the interest of all parties ; nor is he necessarily bound, in such case, to have a professional valuation of the 112 (where the instrument of trust contained no power to vary the invest- ments). To these words there have been added in the corresponding section of the Act of 1893, namely in s. 1, the words "whether at the time in a state of investment or not." As to ss. 1 and 4 of the present Act, see also Re Owthwaite, 3 Cli. (91), 494 ; Hume v. Lopes, supra. (t) It has recently been held that a power to lend to a particular trading firm does not authorise the making or continuing of a loan after a change in the persons constituting the tirm : Be Tucker, 3 Ch. (,94), 429, C. A. («) Trustee Act, 1893. s. 7. (m) Worman v. W., 43 Ch. D. 303. (v) Wehb V. Jonas, 39 Ch. D. 660 ; StoJces v. Trance, 1 Ch. (98), 212. (w) WIdtney v. Smith, 4 Ch. 513. (x) Blyth V. Fladgate, I Ch. (91), 354 ; Learoyd v. Whiteley, 12 App. 733 ; Smethurst v. Hastings, 30 Ch. D. 490 (where it was held that a mere sub-mortgage with covennnt for payment of the money was free from Sub-mortgage, objection) ; Sheffield, &c.. Society v. Aizleivood, 44 Ch. D. 412 ; Re Olive, 34 Ch. D. 70 ; Re Salmon, 42 Ch. Div. 351 ; Re Maherhj, 33 Ch. D. 458, where there was a direction to invest in the purchase of land in Ireland, and the Court considered it unsafe so to do. As to the discretion of trustees with regard to investment, see Re Brown, 29 Ch. D. 8*9 ; Bethell V. Abraham, 17 Eq. 24; Stewart v. Sanderson, 10 Eq. 26; Re Medland, Foreign 41 Ch. Div. 476. As to the construction of powers to invest on foreign securities, securities, see Re Langdale, 10 Eq. 39. (y) Budge v. Gummow, 7 Ch. 719; Learoyd v. Whiteley, swpra; Smethurst v. Hastings, supra ; Re Olive, supra. 44 EXECUTION OF TRUSTS. 57 Vict. c. 10, s. 4. Continuiug unauthorised investment. Persons entitled iu succession. Amount to be advanced. Trustee Act, 1893, s. 8. Trust legacy. property. But he would he liable for the loss occasioned by his failing, within a reasonable time, to call in mortgage securities eifected by a testator in his lifetime, if they were so insecure that an ordinary person, acting with reasonable prudence, would not allow them to remain outstanding. It should, however, be borne in mind that a trustee is not a surety, nor is he an insurer. He is only liable for want of ordinary prudence, or for some other wrong done by him- self, and the loss of trust mone^ is not, per se, proof of any such wrong, {yet) Now by the Trustee Act, 1893, Amend- ment Act, 1894 (c. 10) s. 4, a trustee is not liable for breach of trust by reason only of his continuing to hold an invest- ment which has ceased to be an investment authorised by the instrument of trust, or by the general law. It has recently been held by Kekewich, J., that this section is not retrospective in its operation, {yh) A trustee must, in selecting investments, as in the exercise of other powers and duties, hold an even hand between all parties interested ; e.g., he must not favour a tenant for life at the risk of the remainderman, nor favour the latter at the expense of the former, (z) It was, until lately, a general rule that trustees were not justified in lending more than two-thirds of the value of freehold land used for agricultural purposes ; nor more than a half where the land derived its value from buildings erected thereon. They were not justified in advancing so much as a half in the case of buildings used in trade ; and a loan in contravention of these rules would probably have amounted to a breach of trust. Now by s. 8 of the Trustee Act, 1893 (c. 53) corre- ponding to s. 4 of the Trustee Act, 1888 (c. 59) it is enacted that " (1) no trustee lending money upon the security of any property shall be chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of such property at the time when the loan was {ya) Re Chapman. 2 Ch. (96), 763, C. A. (2/6) Ih., 1 Cb. (96), 323. (z) Re Olive, 3i Ch. D. 73; Learoyd v. Whiteley, 12 A pp. 733; Re Godfrey, 23 Ch. D. 483. It has been somewhat recently held by Keke- wich, J., that after a trust legacy has been properly appropriated, it is a breach of trust to vary the investment without reasonable cause ; and that upon the legacy falling into possession, the trustee is liable tC' indemnify the legatee against any loss resulting from the non-observance of this rule : Re Walker, 59 L. J. Ch. 386. EXECUTION OF TRUSTS. 45 made, provided that it shall appear to the Court that in Report ot making such loan, the trustee was acting upon a report as to ^* ^^^' the value of the property made by a person whom the trustee reasonably believed to be (a) an able practical surveyor or valuer, instructed and employed independently of any owner of the property, whether such surveyor or valuer carried on business in the locality where the property is situate or elsewhere, and that the amount of the loan does not exceed two equal third parts of the value of the property as stated in such report, and that the loan was made under the advice of such surveyor or valuer expressed in such report, and this section shall apply to a loan upon any property of any Section applies tenure, whether agricultural or house or other property on ^° pi'operty of which the trustee can lawfully lend. ^°/ enure, " (2) No trustee lending money upon the security of any Leaseholds ; leasehold property shall be chargeable with breach of trust lessor's title. only upon the ground that in making such loan he dispensed either wholly or partially with the production or investiga- tion of the lessor's title. " (3) No trustee shall be chargeable with breach of trust Power to only upon the ground that, in effecting the purchase of any ^'^'^^V^ l^^* property, or in lending money upon the security of any marketable property, he shall have accepted a shorter title than the '^'*^1'^- title which a purchaser is, in the absence of a special contract, entitled to require, if, in the opinion of the Court, the title accepted be such as a person acting with prudence and caution would have accepted. " (4) This section shall apply to transfers of existing Section securities, as well as to new securities, and to investments i'<^*^ospective. made as well before as after the passing of this Act, except where some action or other proceeding shall be pending with reference thereto at the passing of this Act." A valuation must, in order to relieve the trustee from Valuation liability, be made by an independent valuer, and not by one ™^^^ ^^ IT !• T rr^^ • • tit independent, instructed by the intending mortgagor, ihis is an old rule of the Court ; and trustees acting in contravention thereof will generally be liable to replace any money lost in consequence, with interest, (fe) They will, in general, be also liable in like manner, if the loss arises in consequence (a) Be Somerset, \ Cb. (94), 231. (b) Fry v. Tapson, 28 Ch. I). 268 ; Rae v. Meeh, 14 App. 558 ; S7net- hurst V. Eastings, 30 Ch. D. 490 ; Re Somerset, 1 Ch. (94), 231. 46 EXECUTION OF TRU8T8. Improper valuatiori, &c. Extent of liability. Trustee Acts of 1893, s. 9, & 1888, s. 5. New trustees. Repair of infant's property — improvements. of their lending in reliance upon a valuation which is improper in other respects, or without any valuation having been made ; (c) or if they lend on an insufficient security contrary to the advice contained in a proper report and valuation advising again^^t the same, (d) Moreover the valuation must, to come within s. 8 of the Act of 1893 above set forth, be made upon the trustees' own instructions directed to the particular investment, (e) and proper in- structions must be given to the valuer, (/) Before the passing of the Trustee Act, 1888, trustees who advanced too much money upon a security which was in all respects proper, except as to the amount of the loan, were liable to make good the whole of the sum subsequently lost to the estate, (cf) Now by virtue of s. 9 of the Trustee Act, 1893 (c. 53), corresponding to s. 5 of the Act of 1888, they will, in such case, only be liable to make good the excess over and above the amount which they ought originally to have advanced ; but they are not entitled to the protection afforded by this section unless the investment which has proved deficient was, at the time when it was made, a proper one in all respects other than value. (Ji) New trustees may realise an insufficient security taken by a former trustee, without giving him any previous option to take a transfer thereof; and may afterwards sue the former trustee with the view of compelling him to make good the deficiency. (^) Trustees are justified, upon equitable rules, in repairing real estate belonging absolutely to an infant ; but they are not justified in executing more repairs than the circum- stances of the case require, nor, in making improvements, (j) (c) Be Olive, 34 Ch. D. 70 ; Be Chapman, 2 Ch. (96), 772. id) Blyth V. Fladgate, 1 Ch. (91), 337. (e) Be Walker, 59 L. J. Ch. 386 ; Be Somerset, supra. (/) Be Partington, 57 L. T. 654. (g) Fry v. Ta.pso7i, 28 Ch. D. 268. (h) Be Walker, 59 L. J. Ch. 386 ; Be Somerset, supra. (i) Ree Be Salmon, 42 Ch. Div. 368, 371 ; Thornton v. Stokill, 1 Jur. N. S., 751 ; Head v. Goidd, 2 Ch. (98) 250. Expenditure of (j) Bridge v. Brown, 2 Y. & C. 181 ; Be Colyer, 55 L. T. 344. As to personal estate the jurisdiction of the Court to sanction the expenditure of personal estate in repairs of in repairing real estate, where both real and personal estate are subject realty. to the same trust.-, see Conway v. Fenton, 40 Ch. D. 512 ; Be I)e Teissier, Tenant for life ^ ^^- ^^'^^ ^^^' ^^ Montagu, 2 Ch. (97) 8, C. A. As to the duty of and're- trustees to repair, and as to the incidence of the expenses thereof, as ■ 1 between tenant for life and remainderman, see Be Hotchkys, 32 Ch. Div. —receive- '^^^' '^^^ ' ^^"^ Cordova v. De C, 4 App. 709; Ue Crawley, 28 Ch. D. 431 ; EXECUTION OF TRUSTS. 47 By the Conveyancing Act 1881 (c. 41) B. 42, extensive Conv. Act, powers of managing ati infant's real estate are given to the ^^5 mana?e- trustees therein referred to, whether the infant be entitled ment — main- in fee simple or in tail, or he tenant for life only. This t^^^^ce. section and s. 43 (which is fnlly set forth in a subsequent part of this work) contain very full powers for the main- tenance and education of infant owners of j)i"operty. S. 42 applies only to land and interests therein (k) while s. 43 applies to property as well personal as real. Trustees selling property under a trust for or power of Power to sell sale are by the Trustee Act 1893 (c. 53") s. 13, correspondino; t>y auction, &c. •' _ \ / ' r S3 Trustee Act to the Conveyancing Act 1881 (c. 41) s. 35, empowered to 1893 s. 13. ' sell or to concur with any other person in selling either by auction or by private contract. Before joining with any When trust other person in selling the property subject to the trust Property may together with other property not subject thereto, it is their other duty first, to see that such a mode of sale is beneficial to property, their cestuis que trust ; and secondly to decide befoi'e com- pletion and acting upon proper advice, what is the share of the sale money which ought to be paid to themselves in respect of the trust property (Z). A trustee is not allowed, in the absence of express power Trust not to for that purpose contained in the instrument of trust, to ^^ delegated. delegate his powers or duties to other persons ; but he is not Re Williams, 54 L. T. 105 ; Re Barney, 3 Ch. (94) 562 ; Re Freman, 1 Ch. (98) 28 ; Re Tomlinson, ib, 232 ; and as to permanent improve- ments see Re M. of Bute, 27 Ch. D. 196 (construction) ; Re Lever, 1 Ch. (97) 32 (expenses of sanitary works). Upon the question wiien the neglect of a tenant for life to repair may afford ground for the appointment of a receiver, see Re Fowler, 16 Ch. D. 723. As to the j-r +>, • j liability of trustees for making unauthorised improvements, e.g., erecting y^iauthonsed buildings in exercise of a bond fide discretion, see Vyse v. Foster, 8 Ch. '™Pi'o^'e™ents. 309, L. R. 7 H. L. 318. As to their power to insure against fire, see ^'^surance. s. 18 of the Trustee Act, 1893 (c. 53) corresponding to s. 7 of the Trustee " ^^^^ " ;— Act, 1888 (c. 59). Conv. Act, (k) See also s. 41 of this Act and Re Sparrow, 1 Ch. (92) 412, also the 1881 ;— Settled Land Act, 1882, ss. 59 & 60. As to the meaning of " land," see Settled Land s. 2 of the Acts respectively. -'^ct, 1882. (I) Re Cooper, 4 Ch. D. 802. See S. C. as to the mode of apportioning Apportionment sale money in such cases. sale money. As to the power of trustees to give receipts, see s. 20 of the Trustee Trustee Act Act, 1893, corresponding to s. 36 of the Conv. Act of 1881 (c. 41). 1893 s. 20'— Elliot V. Merrtjman, 2 Atk. 4 and notes thereto in 2 Wh. & Tu. Oower fo o-i'vo L. C. Eq. 896; Anson v. Potter, 13 Ch. D. 141. See also the repealed receints provisions of 22 & 23 Vict. c. 35 and 23 & 24 Vict. c. 145, s. 29. ^ . [ . . Until lately trustees were not entitled to put up property for sale , l^t ^^ ^^ subject to depreciatory conditions. See now the Trustee Act, 1893, :^'^^' 8S. 14, 15, the former corresponding to s. 3 of the Trustee Act, 1888 (c. 59). ■'■.^ i — ^^pre- ' " ' \ / ciatory con- ditions. 48 EXECUTION OF TRUSTS. Employment bound to do everything himself. He is entitled to employ a of solicitor, &c. g^j.^-^^^^ broker, auctioneer, or agent, in cases where an ordinarj' man of business would do so, and to pay out of the Counsel's fees, trust estate all reasonable costs (including counsel's fees) and expenses thereby incurred (m). A trustee or executor Agent to may employ an agent to collect numerous small debts (n). collect debts, jj^ j^ ^^^^ entitled to employ a house agent to collect rents ; Remuneration. ^^* ^^*^ '^^ ^ matter of course — Only if a person of ordinary business capacity would require so to do in a like case, in dealing with his own property"; and he must exercise his judgment as to what is a reasonable amount of remunera- Dishonest iJqjj f^j. ,such employment (o). When a trustee or executor, in a proper case, employs a broker to buy or sell securities for money and the trust property or money is lost by his so doing, he is not liable to make good the loss, if he has followed the course usual in such cases ; e.g. if a trustee, in purchasing securities on the Stock Exchange pays, in accordance with the usual custom, the purchase money mentioned in the bought note to a broker of good credit, Remittance of who immediately absconds therewith, (p) So also an executor money to ^^ trustee may remit money for the purposes of the estate or trust to a co-executor or trustee or other agent in good credit living at a distant place, where the money is pa3able, and so Trustee Act, as to enable the latter to pay the same. The power of a SoHci'toi--— '~ ti'ustee to employ agents has been extended by statute. By banker. ' s. 17 of the Trustee Act 1893 corresponding to s. 2 of the Trustee Act 1888 (c. 59) (g), a trustee may permit his solicitoi- to receive the pioceeds of property sold in execution of the trust, and may appoint a banker or solicitor to receive money payable under a policy of assurance. This section will not authorize a trustee to delegate his trust either to a solicitor, co- trustee or to a stianger, whether acting under a power of attorney or otherwise (r). (m) Be Speight, 22 Ch. Div. 757 ; 9 App. 1 ; BoUnson v. Sarhin, 2 Ch. (96) 415 : Lee v. Sanlcey, 15 Eq. 204; Barnes v. Addii, 9 Ch. 244 ; Fry v. Tapson, 28 Ch. D. 270 : Be Gasquoine, 1 Ch. (94) 470 ; Bostock v. Floyer, 1 Eq. 26, as expluined by Lindley, L.J., in Be Speight, supra. in) Be Brier, 20 Ch. t). 243 (o) Be Weall, 42 Ch. D. 678. (p) Speight V. Gaunt, 9 App. 1 ; Bobinson v. Uarldn, supra. (q) Kendeied necessary by the decision in Be Bellamy, 24 Ch. Div. 387. See also Be Flower, 27 Ch. D. 592, s. 56 of the Conveyancing Act, 1881 ; Day V. Woohoich, d-c, Society, 40 ib. 491. (r) BeHetUng, 3 Ch. (93) 280. EXECUTION OF TRUSTS. 49 A trustee is entitled to take the opinion or direction of the Opinion of Court in any case of doubt or difficulty in the execution of the trust. If, instead of applyins; to the Court, he, on his 'F'""^*^® , . .,. -, • n ■ • !• ^ deviiiting from own responsibility, deviates from the provisions of the instrument instrument of tiust, the onus will be cast upon him tooft*'****- justify the course adopted, (s) If he desires to invoke the aid of the Court, he may do so by commencing an action for having the trust executed under the direction of the Court Action for where the circumstances of the ease so require ; (<) or by ^■^'^';" '°° ^ submitting any questions or matters for the opinion or determination of the Court by originating summons under 0. 55, r. 3, or by availing himself of the protection 0. 55, r. 3, afforded by s. 42 of the Trustee Act, 1893 (corresponding ^'JJJ*^^^ ^2^' to the Trustee Belief Acts, 1847 and 1849), accoiding to circumstances. The Court has no power, under the last-mentioned rule, Breach of to compel trustees to make good a breach of trust, (tt) trust. Upon the winding-up of a trust, or the distribution Release on among residuary legatees of tlie estate of a deceased per[^on, r.'°\"^|'"^ it is usual for the cestuis que trust or legatees to execute or sign a release to the trustees or personal representatives. The release is generally given by instrument under seal, though it would appear that this cannot be insisted upon, (u) The release is prima facie a bar to the taking of the accounts When a bar under the direction of the Court. But if it has been obtained accounts^bv fraudulently, or by undue influence, or if the material Court. recitals or the accounts therein contained or referred to are Release untrue or incorrect, it is liable to be set aside : and in that ii"Pi^operly ob- •111 1 • • -, ■ tamed, &c. ; case it will be no bar to a claim to have the trust carried into execution or the estate administered (as the case may be) under the direction of the Court, (v) The release is also (s) Worman v. W., 43 Ch. D. 309. (i). As to the immunity of a trustee or personal representative makino; Power of bond fide payments, &('. under power of attorney given by a person who Attorney; — has subsequently died, or has purported to revoke the same, see s. 23 of Trustee Act, the Trustee Act, 1893, corresponding to s. 26 of 22 & 23 Vict. c. 35, also 1893, s. 23 ; ss. 8 & 9 of the Conv. Act, 1882 (c. 39). Conv. Act, (tt) As to the course to be pursued where inquiries have been directed 18s2, ss. 8, 9. in respect of a breach of trust, and the Muster has made his Certificate in answer thereto, see Re Stuart, 74 L. T. 546. As to the circumstances under which a trustee may apply to the Court for a declaration that his own act did not constitute a breach of trust, see Re Irwin, W. N. (95) 23. (w) See Lewin. 398. (v) Broolis v. Sxdion, 6 Eq. 361 ; Re Wehh, 1 Ch. (94), 80, 85. 50 EXECUTION OF TRUSTS. given by mistake. liable to "be set aside, if it has been given under a mistake, or where full information as to the amount of the estate has not been furnished to the releasing parties, (w) Section XL — Duties of Trustees. Good faith. Dil gence, &c. Instrument of trust. The Court requires the utmost good faith on the part of a trustee in relation to the trust property committed to his charge, and to the duties of his- office. He must also show- due diligence and attention in the discharge of his duties. He is bound to take the same care of the trust property as a prudent person would take of his own ; and the rule is the same even where the trustee is, by the terms of the instru- ment of trust, entitled to be remunerated for his services, (x) But this rule is suliject to the qualification that he must act in accordance with the provisions of the instrument of trust. (?/) A person may invest his own money upon any securities he pleases, however speculative they may be ; while a trustee is bound to confine himself to that class of investments (if any) which are authorised by the instrument creating the trust, or if none, to investments authorised by law, and to avoid those which are of a hazardous nature, (z) But if a trustee act honestly, with ordinary prudence, and within the limits of his trust, he is not liable for mere errors of judgment. Any loss sustained by the trust estate, under such circumstances, must fall upon and be borne by the owners of the property, i.e. the cestuis que trust ; and cannot be thrown by them on the trustee — even though the result may prove that he might possibly have done better, (za) Trustee should Where there are more trustees than one, they must act act jointly. jointly but each must exercise his own judgment, (zh) Where a trust requires active duties on the part of trustees, Equity Errors of judgment. Deliiy ; — Cove- nant to settle after-acquired property. (w) Re Garnett, 31 Ch. Div. 1, where the release was, more than twenty years after its execution, declared not to be binding. See also Hickman V. Berens, 2 Ch. (95), 638, C. A. (consent of counsel by mistake given to compromise) ; Wilding v. Saw'erson, 45 W. R. 076, C. A. ; and upon the queotion how far property coming to a wife upon the setting aside of such a release is bound by a covenant for settlement of after-acquired property, Re Garnett, 33 Ch. Div. 300 (construction). (x) Jobsonv. Palmer, 1 Ch. (93) 71 ; Ex parte Ogle, 8 Ch. 711. (y) Re Brogden, 38 Ch. Div. 554 (z) Learoyd v. WUteley, 12 App. 733 ; Roe v. Meeh, J4 App. 569. (za) Re Chapman, 2 Ch. (96) 776, C. A. (z6) Re Roth, 74 L. T. 50. DUTIES OF TRUSTEES. 51 recognizes no such character as a passive trustee ; but all are acting trustees. If one trustee rely upon the judgment Reliance on co- of his co-trustee, instead of acting on his own judgment, and "^"^ *^' thereby loss accrue to the estate, he will be personally liable to make it good (a). When a person is appointed trustee, it is his duty to Property, inform himself, as soon as possible, of the nature of the "^^^^ &^ ^ trust property, and when the nature of the case permits to procure a conveyance or transfer thereof to himself, and obtain possession of the title deeds (6) and in all cases, to see that he gets the whole of the trust property into his hands, or under his control. When the trust property consists of a chose in action, or of an equitable interest, and he is not entitled to an immediate transfer of the legal interest, he must give notice of his own interest as trustee, to the debtor, or to the trustees in whom the legal interest is vested, as the case may be. (c) He must Getting in show due diligence in getting in all debts and choses in ^^°^^' °'<^- action (d) and in realising property invested on insufficient or hazardous security, (dd) He is also bound to prosecute Protection of and defend all such proceedings as are necessary and proper trust property. for the preservation and protection of the trust property. When new trustees are appointed in the place of former New trustees, trustees, they ought to look into the trust documents and documents, .. • 1 X .• ^^ .notices, &c. papers, to ascertain what notices appear among them of incumbrances and other matters affecting the trust ; but they are not fixed with notice, through retiring trustees of incumbrances of which no notice appears amongst the trust documents, and the existence of which though known to the retiring trustees is not disclosed to themselves ; (e) nor are Dealings of they bound to inquire into all the dealings vnih. the trust former fund from the origin of the trust, or to pursue every past "^"^ ^^^' (a) Fryy. Tapson,2S Ch. D. 270, 279 ; Chmpare, Ch. VIII., s. xi., infra, as to personal rt-presentutives. (6) Lloyds, executors, because the receipt of one of several executors is a *° executors. good discharge to the person paying ; and if one executor joins in the receipt, and thereby enables his co-executor to receive the money, he may fairly be considered as intending to make himself liable for the same, (n) But the onus is Onus that cast upon a trustee who ioins in the receipt tor the sake of ti"^'^*^'^ ^^^ °°^ rGCGlVG. conformity, to show that the money was not in fact received by him. (o) Lord St. Leonards' Act, 1859 (c. 35) sect. 31, for the first 22 & 23 Vict. time incorporated into instruments of trust an implied ^ ^^' ^' ^^• statutory indemnity clause similar to the express one which 1893, s. 24;'— had, by the practice of the Profession been for many years indemnity inserted therein, to the effect that trustees should only be responsible for the funds actually received by them, not- withstanding their respectively signing any receipt for the sake of conformity, and exempting them from liability for (inter alia) the receipts, neglects, or defaults of each other or of any banker, broker, or other person with whom trust fiinds might have been deposited. This section has been repealed and substantially re-enacted by the Trustee Act, 1893. 0) Neither sect. 31 of the earlier Statute nor the express indemnity clause which it was intended to supersede, ex- pressed more than a Court of Equity would before the Statute, have implied independently of any such enactment, (g^) It is difficult to see what was the object of inserting the (1) Re Palk, 41 W. E. 28. (m) Lee v. Sanlcey, 15 Eq. 204. ' (n) Brice v. Stokes, 11 Ves. 324, and see notes thereto iu 2 Wh. & Tu. L. C. Eq. 63.3. (0) lb. (p) S. 24. (2) Re Brier, 26 Ch. Div. 243. 60 EXECUTION OF TRUSTS. Leaving money under control of co-trustee. Breach of trust by co-trustee. Indemnity clause. Leaving funds in possession of debtor, &c. Temporary deposit in bank. Primary and secondary liability. indemnity clause, unless to mislead a person asked to become a trustee by stating to him only part of the respon- sibility which he would thereby incur; for though a trustee is only liable for his own defaults, it is one of his duties to see that trust money, after it shall have been received by a co-trustee, is properly applied in accordance with the trust. If, on completing a sale or paying off a mortgage, one of two trustees who has received the sale or mortgage money should agree with the other, that the two should forthwith pay the money into a bank to their joint account, but, instead of going with his co-trustee to the bank, the one who has received the money should immediately abscond therewith, and thereby it is ultimately lost to the estate, the co-trustee would not, without more, be liable to make the loss good ; (r) but if the loss should arise by reason of one of the trustees handing the money to the other, or leaving it entirely under his control for any considerable time, then both trustees would be liable, (s) A trustee is also liable if he becomes aware of a breach of trust either committed or meditated by his co-trustee, and abstains from taking the necessary steps to obtain restitution or redress. A clause may, however, be framed so as to indemnify a negligent trustee in any of these cases, {t) As a trustee is in general liable for allowing his co-trustee to retain possession of the trust funds, a fortiori he is liable for loss arising from allowing them to remain outstanding, (u) or to remain unnecessarily in the possession or under the control of an agent. Trustees are justified in allowing trust money to be deposited in a bank for a temporary purpose, {y) but the account should be so headed that the banker must know that it is a trust account, (lo) If the money be lost through being (r) Re Gasquoine, 1 Ch. (04), 478. (s) Brice v. Stokes, supra ; Thompson v. Finch, 8 D. M. & G. 563 ; Scotney V. Lamer, 31 Ch. Div. 380. it) Wilkins v. Hogg. 8 Jur. N. S. 25. (?0 Re Roberts, 76 L. T. 479 ; Scotney v. Lomer, 29 Ch. D. 535 ; 31 Ch. Div. 380, where it was held by North, J., that &n executor who had been made liable for wilful default, could recover the funds in question from the persons originally liable to transfer or from other persons guilty of wilful default in not having taken the necessary steps to obtain a transfer of the same to themselves. (v) Wilkins v. Hogg, 8 Jur. N. S. 25. (?(') Per Millish, L..J., in Ex parte Kingston, 6 Ch. 640. See also Coleman v. Bucks, &c. Bk., 2 Ch. (97) 243. BREACH OF TRUST. 61 kept in the bank for a longer period than necessary (x) or by its Laving been deposited therein by way of permanent icvestment, (2/) the trustees will be liable to replace it with interest. So also trustees will be liable if the trust funds be lost by reason of their putting the same out of their complete Trustees control, e.g. by placing them on a banking account in the p^opertv out names of themselves and a stranger ; (z) or where one trustee of their com- gives complete contiol over the whole or part of the funds to P^*^''^ control a co-trustee, as by depositing them in a bank, and giving the co-trustee power to draw upon the account upon his signature alone. The same principle applies to executors. So, also, where a trust authorised an investment ou foreign bonds which passed by delivery and some of them were lost through the dishonesty and insolvency of one of two trustees, who had divided the bonds between them for safe custody, it was held that the honest as well as the guilty trustee, was liable to make good the loss incurred, (a) When several trustees have committed a breach of trust Joint and by misapplying the trust funds, they are, as a rule, jointly jfa^^jij't„ and severally liable at the suit of the cestui que trust to replace the same with inteiest from the time of the misappli- cation, (6) and the same rule applies as between a properly constituted trustee and a person who by concurring in a Co-trustee ; — breach of trust has become a constructive trustee ; (c) but any ^^"^ ^' ^ ^°°' one of the trustees so liable, is, in general, entitled, if not guilty of any moral fraud, to an order for contribution {d) against his co-trustees in pari delicto; and the Court may direct an inquiry to ascertain the amount of the contribution, (e) When a trust fund has been lost throTigh the negli- Leaving gence of a trustee in leaving the management to his co- ^o co-trustee. trustee, then though both are liable jointly and severally at indemnity the suit of the cestuis que trust to replace the fund, the benefit from breach of (x) Cann v. C, 33 W. R. 40. trust. ly) Behden v. Wesley, 29 B. 214. (z) White V. Baugh, 3 C. & F. 44 (receiver). (a) Evans v. Bear, 10 Ch. 76. (fc) Blyth V. Fladgate, 1 Ch. (91) 35S; Re Smith, 1 Ch. (96) 71. As to the right of a cestui que trust to sue one of two trustees without bringing the ottier trustee or liis representative before the Court, see fiilson v. Rhodes, 8 Ch. Div. 777 ; Re Harrison, 2 Ch. (91) 352. (c) Cowper v. Stoneham, 68 L. T. 18. (d) Sawyer v. S., 28 Ch. Div. 601. (e) Chillingworth v. Chambers, 1 Ch. (96) 701, C. A. ; Bohinson v. Harhin, 2 ib. 415. 62 EXECUTION OF TRUSTS. Co-trustee solicitor. Partners, kc. Lay trustees' clients — re- tainer. Loss of one funJ, and gain on another. Retirement of trustee on request to commit a breach of trust. passive trustee will not in eitlier case be entitled, as a matter of course, to be indemified by the active trustee. (/) He will be so entitled however if the latter has obtained the benefit of the breach of trust, {g) But it would appear that the benefit must be direct, e.g. where the active trustee has fraudulently applied the money for his own private pur- poses. (Ji) If the active trustee stand in the relation of solicitor to his co-trustees, and the transaction impeached, e.g., an unauthorised or improper investment has been carried into eff'ect by himself and his co-trustees upon his advice, he is liable (^) and the co-partners of the solicitor trustee are also liable for damages at the suit of the co- trustees — at all events when the solicitor trustee or his firm has been paid a bill of costs in respect of the transaction in question. This liability will, upon death of one of the pareners pass to his representatives, (j) In such a case the lay trustees are clients of the firm who act as solicitors to the trust, though there may have been no express retainer. (¥) "When there are two or more negligent but honest trustees, then if one of them replaces the entire fund, he will be entitled to call uj)on the other or others for contribution so as to put both or all of the honest trustees upon an equal footing in respect of the fund or so much thereof as cannot be recovered from the guilty trustee. "When a trustee has committed a breach of trust as to one of two sepai'ate trust funds, whereby it is lost, he must make good the whole of the loss, and is not entitled to set off any gain made on the other fund, (kh) If a truhtee after being asked to commit a breach of trust, and after refusing so to do, retires in favour of a more com- (/) Bdhin v. Hughes, 31 Ch. Div. 396; Chillingworth v. Chambers, supra. (g) lb. (h) Butler v. B., 7 Ch. Div. 119; and see S. C. 14 Ch. D. 329 ; Saivyer V. S., 28 ib. 601. (i) Blyth V. Fladgafe, 1 Ch. (91) 337 ; Mara v. Browne, 1 Ch. (96) 199, C. A. ; Ee Turner, 1 Ch. (97) 536. (j) Blyth V. Fladgate, supra. (k) lb. Where the obligation to replace a trust fund creates a specialty debt, under tlie circumstances above stated, the liability, if any, to indemnify a co-trustee will also constitute a specialty debt. See Mercantile Law Amendment Act, 1856, s. 5; Lockhart v. Eeilly, 1 D. & J. 474. ikk) Wiles v. Gresham, 24 L J. Ch. 264; Re Barker, 77 L. T. 712. BREACH OF TRUST. 63 plaisant new trustee, and transfers the property to him so that he is enabled to commit the breach of trust, he will be liable for the breach committed by the latter, just as if it had been committed by both. (J) The debt created by committing a breach of trust will be When breach a specialty debt in the case of a trust created by an instru- of^t^'uf* creates ment under seal, executed by the trustees in fault, and con- debt, taining a covenant or agreement on their part to perform the trusts thereby declared ; (m) but in other cases, the debt is a simple contract debt only. («). The acceptance of the trust by a deed appointing a new trustee does not amount to a covenant, (o) A cestui que trust who being sui juris has been, with a full Cestui qne knowledge of all the circumstances, party to or has ^^'^^ ^^'^^^^' acquiesced in a breach of trust, has no right to complain acquiescing in thereof; and his representatives after his death are in no ^'^''^^''^ °^ trust. better position, (p) When trustees have committed a breach of trust, or are Removal of otherwise guilty of misconduct, or if the Court should be of mrscl^nduct opinion that their continuing in office would prevent the &c. trusts being properly executed — e.g. where trustees of a chapel have changed their religious opinions (q) they are Trustees of liable to be removed from their office, {r) If they are not reH^Lus" willing to retire, an action may be commenced in order to opinions. remove them. The Trustee Act 1850 (c. 60) s. o2 did Bankrupt not nor does the Trustee Act 1893 (c. 53) (s) apjjly to such a ^"^ ^^" case. (<) But where a trustee had become bankrupt, a new trustee could before 1894 have been appointed in his place under the Bankruptcy Act 1883 (c. 52) s. 147. Such an appointment can now be made under s. 25 of (I) Palairet v. Carew, 32 B. 567 ; Clark v. Eosldns, 36 L. J. Ch. 689 ; Head V. Gould, 2 Ch. (98) 250. (m) Isaacson v. Harwood, 3 Ch. 228 ; West7noreland v. Tunnicliffe, W. N. (69) 182. (n) lb. (o) Holland v. H, 4 Ch. 456. (p) Sawyer v. S., 28 Cli. Div. 604 ; Dixon v. D., 9 Ch. D. 587 ; Scotney v. Covenant to Lamer, 31 Ch. Div. 380 ; Re Deane, 42 Ch. D. 9 ; Chilling u:orth v. indemnify. Chambers, 1 Ch. (96) 685, C. A.; Evans v. Benyon, 37 Ch. Div. 329- Crichton v. C, 1 Ch. (96) 875, C. A. ; Re Roberts, 76 L. T. 482. See Evans v. Benyan also as to the effect of a covenunt to indemnify a trustee against the consequences of a breach of trust. (g) A. G. V. Murdoch, 2 K. & J. 573 (r) Letterstedt v. Broers, 9 App. 386 ; Ewing v. Orr-Ewing, 10 ib. 530. (s) See s. 11. (0 Re Blanchard, 3 D. F. & J. 131. 64 EXECUTION OF TRUSTS. Breach of trust, &c., by wife. Liability ., supra. (/) Sawyer v. S., 28 Ch. D. 598. BREACH OF TED ST. 67 tion or request of a beneficiary ; but also when it has been committed with his or her consent in writing; {ni) and the order may be made, notwithstanding the beneficiary be a Separate married woman entitled for her separate use, either with or Property with ... rm /-t -n n restraint on Without restraint on anticipation. The Court will generally anticipation, exercise this discretion in favour of a trustee, who without when power moral dishonesty has committed a breach of trust for the exercised ; benefit of persons standing on a footing of equality with himself as regards knowledge of the facts which constituted the breach, {n) The section does not appear to be intended to alter the law further than as stated above, and it is there- fore submitted that before the power thereby given can be exercised against the income of a married woman, it is still in case of incumbent on a trustee to show that the breach of trust was "^^"'®<1 woman. committed with a full knowledge by her of all the circum- stances, (o) It would appear that her consent in writing given in full reliance that the trustee would do his duty will not be sufficient, (p) It has been recently held that the equitable right to Priority over indemnity under this section will have priority over the mortgage, claim of an equitable mortgagee of the interest liable to be impounded, (g) An order of discharge in bankruptcy does not release the Defence of bankrupt from any debt or liability incurred by a fraudulent breach of trust to which he has been a party, {qa) Section XIII. — Judicial Trustees Act, 1896, c. 35 ; — Belief against Breach of Trust. (1.) Where application is made to the Court bj'- or on s. 1. behalf of the person creating or intending to create a trust, Power of or by or on behalf of a trustee or beneficiary, the Court may, Court, on in its discretion, appoint a person (in this Act called a ^^^ '■*^* '°'^' ° judicial trustee) to be a trustee of that trust, either jointly judicial with any other person or as sole trustee, and, if sufficient trustee. (to) S. 6. TLe words "in writing" only apply to "consent": Be Somerset, 1 Ch. (9i) 265. (n) Griffith v. Hughes, 3 Ch. (92) 105 ; Re Somerset-, 1 Ch. (94) 231 ; Ricketts v. R., 64 L. T. 263 ; Bolton v. Curre, 1 Ch. (95) 544 ; Re Holt, 2 Ch. (97) 525. (o) Smoyer v. S., 28 Ch. Div. 604. (p) Smethurst v. Hastings, 80 Ch. D. 496 ; Noyes v. Pollock, 32 Ch. Div. 53 ; Re Somerset, 1 Ch. (94) 231, supra. (q) Bolton v. Curre, 70 L. T. 759. (ga) Bankruptcy Act, 1883 (c. 52), s. 30; Rochefoucauld v. Boustead, 1 Ch. (97) 208, C. A. F 2 68 EXECUTION OF TRUSTS. Executor or administrator, S. 2. Court to exercise jurisdiction. S. 3. Jurisdiction of Court in cases of breach of trust. Charity. cause is shown, in place of all or any existing trustees, (2.) The administration of the property of a deceased person, whether a testator or intestate, shall be a trust, aud the executor or administrator a trustee, within the meaning of this Act, (qq) (3.) Any fit and proper person nominated for the pui-pose in the application may be appointed a judicial trustee, and, in the absence of such nomination, or if the Court is not satisfied of the fitness of a person so nominated, an official of the Court may be appointed, and in any case a judicial trustee shall be subject to the control and supervision of the Court as an officer thereof. (4.) The Court may, either on request or without request, give to a judicial trustee any general or special directions in regard to the trust or the administration thereof. (5.) There may be paid to a judicial trustee out of the trxist property such remunera- tion, not exceeding the prescribed limits, as the Court may assign in each case, subject to any rules under this Act respecting the application of such remuneration where the judicial trustee is an official of the Court, and the remunera- tion so assigned to any judicial trustee shall, save as the Court may for special reasons otherwise order, cover all his work and personal outlay. (6.) Once in every year the accounts of every trust of which a judicial trustee has been appointed shall be audited, and a report thereon made to the Court by the prescribed persons, and, in any case where the Court shall so direct, an inquiry into the administration by a judicial trustee of any trust, or into any dealing or transaction of a judicial trustee, shall be made in the prescribed manner. The jurisdiction of the Court under this Act may be exercised by the High Court, and as respects trusts within its jurisdiction by a Palatine Court, and (subject to the prescribed definition of the jurisdiction) by any County Court Judge to whom such jurisdiction may be assigned under this Act, (1,) If it appears to the Court that a trustee, whether appointed under this Act or not, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the passing of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust, and for omitting to obtain the directions of the Court in the matter in which he committed such breach, then the Court may relieve the trustee either wholly or partly from personal liability for the same. (2,) This section shall come into operation at the passing of this Act, By s. 6 (2) the Act is not to extend to any charity. The power given by s. 3 to relieve a trustee from iqq) Be Ratcliff, 2 Ch. (98) 352. BREACH OF TRUST. 69 personal liability for a breach of trust, where he has acted When power honestly and reasonably, is intended to be acted on freely judicial dls- and fairly in the exercise of a judicial discretion. But cretion. the Court must, before exercising the power, be satisfied by sufficient evidence, that the trustee has acted reason- Trustee must J ' . . , nave acted ably as well as honestly. No general rules or principles reasonably as can be laid down as those to be acted upon in giving well as 1 • 1 1 t 1 -2. honestly, effect to the section ; but each case must depend on its own circumstances. Where two trustees, one a solicitor, and the other a linen- draper, invested trust money on a mortgage which was obviously improper in respect of its nature and its value, the Court refused to act on the section, in favour of the former, being satisfied that he had not acted in respect of the mortgage as he probably would have done, had it been a transaction of his own. {qh) But in Be Kay (qc) a testator bequeathed to his widow a Be Kay. legacy of £300, payable immediately after his death ; and gave the residue of his property in trust for his widow for life, and afterwards for his children absolutely. The testator was a solicitor of good reputation up to the time of his death, in June 1894. He left assets upwards of £21,000 in value ; but no suspicion existed before the following month of December that he had left any except small debts. In that month the plaintiffs commenced their action seeking to make the estate of the testator liable for defalcations by him, as agent to certain large estates ; and judgment was pro- nounced in the month of April following, under which sums amounting to £26,000 were ultimately found to be due by the Master's Certificate. Upon a summons taken out under the Act, and to vary the Certificate, Eomer, J., held that though there had been undue delay in issuing advertisements for claims under Lord St. Leonards Act 1859 (c. 35), s. 29, the defendant the testator's executor was entitled to be relieved in respect of the payment of the £300 legacy, and certain other sums amounting together to £287 paid by him to the widow in respect of income prior to the issue of the writ in the action, but not in respect of any sums paid subsequently. (qb) Re Turner, 1 Ch. (97) 536. See also Re Barker, 77 L. T. 712; Wynne v. Tempest, W. N. (97) 43. {qc) 2 Ch. (97)518. 70 EXECUTION OF TRUSTS. Re Foberts ;— So also in He Boherts, (qd) an action seeking to make an devastavit, &c. executor liable as for a devastavit, or for wilful default in not suing for a bill of costs of an administration action due to a testator who was a solicitor, it was held by the Court of Appeal that the forbearance of the executor, to sue for the bill, on an understanding that he was to wait and get his costs paid out of the estate under administration, in the usual way, was reasonable conduct, and such as entitled him to forbear to sue under the circumstances, and that he ought, under the section, to be relieved from liability; and the action was dismissed with costs, including the costs of the appeal. Property wrongfully converted ; — election. Charge ; — sale deficiency. Agent, etc. Trustee applying money of his own with trust money. Right to follow pro- ceeds of trust property sold. Section XIV. — Bight to follow Trust Funds — Wrongful Conversion. If a trustee invest trust money in the purchase of land, or other property not authorised by the instrument of trust, the cestui que trust has the right to follow and impress the trust on that property. He is entitled, at his election, either to take the property purchased, or to have a charge thereon for the amount of the trust money (r) and in the latter case, to have the charge realised by sale of the property, and to recover the deficiency from the trustee guilty of the improper conversion, (s) The same rule applies to an agent or other person in a fiduciary position, (f) When, however, the trustee or other person has mixed up with the trust fund moneys of his own, and applied the whole in an unauthorised purchase, the cestui que trust, principal or other beneficial owner, cannot, as a rule, elect to take the property, but he is entitled to a charge thereon for the trust moneys or funds misapplied (w). So also when a trustee has sold trust property, whether rightfully or wrongfully, the cestuis que trust are entitled to the proceeds of the sale — even though he (qd) 76 L. T. 479. See also Perrins v. Bellamy, 46 W. R. 682. (r) Re Eallett, 13 Ch. D. 709; Re Hallett, 2 Q. B. (94) 237; Hopper v. Conyers, 2 Eq. 549 ; Taylor v. BlaMoch, 32 Ch. Div. 560 ; Ex parte Coohe, 4 Ch. Div. 123; Re Cliampion. 1 Ch. (93) 101. (s) Thornton v. Stokill, 1 Jur. N. S. 751, where Wood, V.-C. refused to allow the cestuis que trust to take the property purchased at a given sum, and to prove against the estate of a deceased trustee for the deficiency. (t) Re Hallett, 13 Ch. D. 709. (m) 11). FOLLOWING TRUST FUNDS. 7l has paid them into his account at the bank ; and mixed them with his own money, (v) If a trustee or agent mixes and confuses the property which Trustee, etc., he holds in a fiduciary character with his own property, so mon'"5 J;"^ that they cannot be separated with perfect accuracy, the his own whole will be subject to the trust, (w) '"""^y- It was held by the Court of Appeal some years ago (x) that Rule in the rule in Clayton's Case{y) as to the appropriation ^^ ^I'l^^j'^l^-.^^^^' payments applied to the cases now under consideration ; so of payments. that if, say £1000, trust money were paid into the trustees' current account, without being in any way ear-marked, then after a number of drawings upon the account and payments in by the trustee of his own money, the balance, though exceeding £1000 might belong beneficially to the trustee himself — i.e. by attributing the first drawings out, to the first payments in. The Court of Appeal has since, however, refused to follow this case, so far as relates to the point now under consideration ; and now the trustee would, in such a case be taken to have drawn out his own money in preference to the trust money. (2) The rule in Clayton's Case would appear to apply as ^ule as between two or more cestuis que trust, where the balance at J^. ^^^^^ cesMs the bank is insufficient to pay both or all of them, (a) que trust. The cestui que trust may follow the trust property into the Against whom hands not only of the trustee himself, but also into those of foUow exer- all persons (including a trustee in bankruptcy) (fc) claiming cisable; — under him except into those of a purchaser for value who has gtlj^"*^^'^' acquired the legal estate or interest (c) without having had pu,.chaser for value, etc. (v) Re Hallett, 13 Gh. Div. 709; Ex parte Coolie, 4 Ch. Div. 123; Negotiable Uster V. Stuhhs, 45 Ch. Div. 9 ; Cohurn v. Collins, 35 Ch. D. 373. But as instruments, to negotiable instruments taken in good faith and for value, see London, etc., BTi. v. Simmons, A. C. (92) 201. (w) Cook V. Addison, 7 Eq. 470. (x) Pennell v. DeffeU, 4 D. M. & G. 372. ly) 1 Mer. 572. (z) Re Hallett, 13 Ch. Div. 696 ; Ex parte Cooke, supra. (a) Hancock v. Smith, 41 Ch. D. 456; Re Stenning, 2 Ch. (95) 433. (b) Ex parte Cooke, 4 Ch. Div. 123; Crichton v. C, 1 Ch. (96) 870, Trustee of C. A. It will be remembered that property held by a bankrupt in, trust bankrupt ; — for another person does not vest in his trustee : Bankruptcy Act, 1883 vesting. (c. 52), 8. 44. Defence of (c) Re Morgan, IS Ch. Div. 103. It was repeatedly decided before the purchaser for Judicature Acts came into operation that the defence of being a pur- value without chaser for value without notice was available whether the purchaser had notice; — when the legal estate or only an equitable interest : Coh/er v. Finch, 5 H. L. C. available. 920 ; Hunter v. Walten^, 11 Eq. 292, 7 Ch. 75. But the rule applied ex- 72 EXECUTION OF TRUSTS. Priority ; — ei(uitaHe interests. Bankers. Agent, &c. notice of the trust at the time when ho parted with hisj money (d) or of a person to whom trust money has been paid in satisfaction of a bond fide debt without notice of the trust, (e) Where trust money has been placed in a bank, to a trust or an executorship or administration account, and has after- wards been applied in discharge of a debt due by the trustee or personal representative to the bank, it is incumbent on the cestuis que trust, in order to fix the bankers with liability to make good the amounts misapplied, to prove first, that a breach of trust or misapplication was intended by the trustee or representative, and secondly, that the bankers were privy to such intention. The like rule applies to clusively to cases where a Court of Equity could give equitable relief only, and not to cases where it could give both legal and equitable relief : Inde Coope v. Emmerson, 12 App. 30.5 ; Planners v. Blew, 29 Ch. D. 733; Onward, etc.. Society v. Smitlison, 1 Ch. (93) 13. The authorities upon the question when this defence could be successfully pleaded were not quite consistent with each other, and even Lord St. Leonards and Lord Westbury were not at one in this respect. Compare Phillips v. P., 4 D. F. & J. 216, with Sug. V. & P. 796, et seq., and see Bowen v. Evans, 1 J. & L. 264, an Irish case in which Lord St. Leonards said : " Whether the purchaser has the legal estate, or only an equitable interest, he may, by way of defence, avail himself of the character of a purchaser without notice, and is entitled to have the bill dismissed against him, though the next hour he may be turned out of possession by the legal title " ; but la Colyer v. Finch, supra, and Heath v. Crealoch, 10 Ch. 30, it was held that a mortgagee, having the legal estate, was entitled to enforce his equitable remedy of foreclosure against a subsequent purchaser or mortgagee with- out notice. See also Heath v. Pugh, G Q. B. Div. 358, 7 App. 235; Phillips V. P., supra. In the latter case Lord Westbury, L.C., decided (p. 217) that the defence was not available when the Com't of Chancery exer- cised a legal jurisdiction concurrently with Courts of Law ; but that it did apply, first to a case where the Court of Chancery exercised an auxiliary jurisdiction in favour of a person having a legal title, e.g., where an heir or tenant for life claimed to recover title deeds ; secondly, in the case of a third mortgagee entitled to tack as against a second mortgagee (see Ch. XIV. on Mortgages, infra) ; and thirdly (at p. 218), " where there were circumstances which gave rise to an equity as distinguished from an equitable estate, e.g., an equity to set aside a deed for fraud, or to coiTect it for mistake." Following this decision, Fry, J., in Cave v. C., 15 Ch. D. 647, held that the defence in question was not available where the circumstances requu-ed the Court to determine priorities between per- sons having only equitable interests. See also Bolton v. Curre, 70 L. T. 759. {d) Taylor v. Blakeloch, 32 Ch. Div. 560 ; Lloyd's Banking Co. v. Jones, 29 Ch. D. 221 ; Neumian v. N., 28 *. 678 ; Pilcher v. Rawlins, 7 Ch. 259 ; Heath V. Creahcl; 10 Ch. 22; Cave v. C, 15 Ch. D. 639; Bulley v. B., 9 Ch. 745 ; Benthich v. London, etc.. Bank, 2 Ch. (93) 120. (e) Northern, etc.. Co. v. Whipp, 26 Ch. Div. 495 ; Thomson v. Clydes- dale Bk., A. C. (93) 287; ChilUngicorth v. Chambers, 1 Ch. (96) 695, C. A. ; and see Ch. VIII. s. xi., infra. FOLLOWING TRUST FUNDS. 73 the account of an agent or other person in a fiduciary character, (ee) There is no right to follow trust funds into the hands of Trustee in a trustee in bankruptcy when there has been no actual bankruptcy, payment, but moneys of the same amount as the trust funds have been merely allowed in account ; (/) and even Purchaser a purchaser with notice from a vendor without notice is without notice , . 1 , , . 1 from person as a rule entitled to the same protection as the vendor ^ith notice, himself. ( ^' ^• the provisions of s. 3 of the Married Women's Property Act, 1893. (ji) 1 Jarman on Wills, 4th Ed. p. 446, approved by Kay, J., in Be De Burgh Laioson, 55 L. J. Ch. 48. This view does not appear to have been urged upon Malins, V.C, when he decided to the contrary effect in Coutts V. Acworth, 9 Eq. 519. (o) Re De Burgh Lawson, supra. (p) 7 Eq. 215. I 114 ELECTION. Election by dowress. Dower Act, ss. 4, 9. Freebench. Where a testator, married before the Dower Act, 1833 (c. 105), came into operation, died, liaving devised to a stranger, his hinds out of which his wife was entitled to dower, and having by his will, conferred other benefits on his wife, the wife was not put to her election unless the will contained some provision inconsistent with her right to have a third part of the lands set out by metes and bounds. (2) Even a gift to the wife of an annuity charged on the land subject to her dower, was considered to be consistent with her right to dower in addition, (r) A number of cases are cited in the older text books upon the question what gifts by the husband were inconsistent with the widow's right, or sufficient to put her to her election. These cases have now become all but obsolete ; because by this Act, the right to dower of a widow married after the beginning of 1834 is entirely at her husband's disposal. By s. 4, she is not to be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will ; and by s. 9, " where a husband shall devise any land out of which his widow would be entitled to dower, if the same were not so devised, or any estate or interest therein, to or for the benefit of his widow, such widow shall not be entitled to dower out of or in any land of her husband, unless a contrary intention shall be declared by his will." It appears to have been supposed that the Dower Act did not enable a husband to deprive his wife of her right to freebench out of copyhold or customary estate subject there- to, (s) This seems to have been the result of a misapprehen- sion of the effect of the repeal, by the Wills Act, 1 Vic. (c. 26), of s. 2 of the Act of 55 Geo. 3, c. 192, rendering it unnecessary in order to effect a devise of copyholds, that a surrender should previously have been made to the use of the will. This misapprehension was however set right by Jessel, M.R., who pointed out that the like power of devising copyhold and customary estate, without any such surrender, had been conferred by s. 3 of the Wills Act, 18o7 ; (t) and he, at the same time, decided that it was not essential, in order to deprive a widow of her dower, that the devise (5) See TJiompson v. Burra, 16 Eq. 592, aud cases there cited. (r) lb. (8) See Smith v. Adams, 5 D. M. & G. 712. (0 Lucey v. Hill, 19 Eq. 346 ; see also Re Thomas, 34 Ch. D. 166. ELECTION. 115 should be specific ; but that a general description, such as Forfeiture of a devise of " all my estate," was sufficient. devise. From the foregoing observations, it will be seen that the Fund to ficeneral doctrine presupposes that there are two gifts, with t-ompensate ° . .1 -Til IT . disappointed an intention, either express or implied that the donee is party ; bound to choose one of them only; and therefore it does not pei'son entitled apply to a case where he is entitled to both. In order to ° ^' raise a case of election it is essential that (1) the author of the instrument should have either purported to give property not belonging to himself, or have attempted to dispose of property of his own, or freely disposable by himself, by some instrument ineffectual for that purpose ; and (2) that he should have effectually given property of his own, or freely disposable by himself, to the real owner of the property first mentioned, or as the case may be, to the person who would become entitled in consequence of the attempted disposition being ineffectual. In other words, the doctrine is only apiDlicable where there is a fund from which compensation can be made. Accordingly where a separation deed executed in 1875, not acknowledged by the wife, provided for payment by the husband of an annuity to the wife, who covenanted to release when dis- covert, an interest in real and personal estate to which she was entitled in reversion, it was held that on the death of the husband, the wife was not, by reason of her having received the annuity, bound to release her life interest, (u) So also in Box v, Barrett, (v) a will contained a recital Box v. that under the testator's marriage settlement, his two ^.l^'f^ '~~ daughters, A. and B. would become entitled to certain mistake, specified hereditaments, and that in making his will, he had taken this fact into consideration, and had not devised to them so large a share under his will as he otherwise would have done. He then devised to A. and B. certain estates of his own, and to his two other daughters C. and D., other estates, also his own property, of much greater value. The four daughters in fact took equal shares under the settlement, but subject to their father's life interest. It was held by Lord Eomilly, M.R., that as the will did not purport to make any disposition of the settled property (u) Earle v. Jarman, 2 Ch. (95) 419, (r) 3 Eq. 244. I 2 116 ELECTION. Case for extrinsic evidence. Testator having some interest in property. and was only made under a mistaken impiession, no case of election arose. In order that the doctrine may be applicable, it is also election cannot ggggntial that the intention of the author of the instrument 06 mised by to deal with property not his own should appear on the face of the instrument itself, e.g. if a testator bequeath £1000 to A., and devise all his real estate in general terms to B., B. will not be allowed to adduce evidence dehors the will, with a view to raise a case of election by showing that the testator made his will under the erroneous impression that certain real estate belonging to A. was included in the general devise to B. (to) When a testator has some interest in property which he purports to devise in general terms, he will prima facie be presumed to intend to deal only with such interest as he in fact has, e.g. if he devise Blackacre to A., and bequeath £1000 to B., B. being tenant for life of Blackacre, and the testator himself tenant in fee in remainder of the same estate, the testator will be presumed to intend to devise his remainder in fee only, and no case of election would arise as between B.'s life estate, and his right to the legacy, (a;) But the rule is otherwise, if the testator shows upon the face of his will, an intention to dispose of the property absolutely. Thus, where a testatrix, being in possession of certain mining property in Columbia, as to one moiety as absolute owner, and as to the other moiety as mortgagee in possession, devised "all and singular the estate and mines of X., in Columbia " to trustees in fee simple, upon trust for sale, and bequeathed large legacies to A. and B. ; and it appeared that two-fifths of the mortgage money belonged to A. and B. by title paramount, it was held that the intention of the testatrix was to devise to the trustees the entirety of the mining property, and that A. and B. were put to their election between the benefits they took under the will, and their shares in the mortgage money, (jf) If a testator devise Blackacre to A., on condition that he make over his own estate of "Whiteacre to B., and also bequeath to A., £1000, though A. will be put to his election (w) Clementson v. Gandy, 1 Keen, 309. The dictum of Jessel, M.R., to the contrary in Pickersgill v. Rodger, 5 Ch. D. 171, cannot be supported. (x) Compare Maddison v. Chapman, 1 J. & H. 470. ly) Wilkinson v. Dent, 6 Ch. 339 ; Re Carpenter, 51 L. T. 773 ; see also Synge v. S., 9 Ch. 128; Honeywood v. Foster, 30 B. 14. Second election. ELECTION. 117 as between "Whiteacre and Blackacre, he will not be put to a second election as between either of those estates and the £1000. He may elect to keep Whiteacre, and will still be entitled to the £1000, forfeiting Blackacre only. In a case of this kind the maxim applies expressio unius est alterius exclusto. If, however, a testator bequeath £1000 to A., on condition that the same be accepted in satisfaction of all moneys which may be owing to him from the testator at the time of his death, and purport to devise to B., Blackacre, which he treats as belonging to himself, but which in fact belongs to A., then A. will be put to his election not only between the £1000 and any moneys which may be owing 'to him from the testator, but also between the £1000 and Blackacre, (z) As the doctrine now under consideration is based on the Intention to presumed intention of the owner of the property, it is ^^'^^^^'^ ■^ r- r ./ ' doctrine ; — no competent for a settlor or testator to use express words, distinction either to exclude the application of the general doctrine 'between deed altogether, or to exclude only the engrafted doctrine of compensation, and to substitute that of forfeiture. It is, of course, perfectly competent for a testator to bequeath, say £10,000 to A., but only on condition that A. make over his estate of Whiteacre to B. In such a case the principle of compensation would not be applicable ; (a) but in the example above given of a testator devising to A., Blackacre, property belonging to B., and devising Whiteacre, property of his own, to B., the doctrine is equally applicable whether the testator did or did not know, or had or had not in con- templation, that he was dealing with property which was not his own, (h) It was indeed held by Lord Eldon (c) that there would be a forfeiture in the case of election to take against a deed as distinguished from a will ; but this, it will have been seen, is contrary to the modern authorities above referred to. The cases which come before the Court have usually arisen Mistake of from a mistake on the part of the author of the instrument *^^'^^^°i'» *'^' in question, or perhaps from carelessness or want of skill on the part of the draftsman. The doctrine has generally been (2) Wilkinson v. Dent, supra. (a) Boughton v. B., 2 Ves. Sen. 12; Middleton v. Windross, 16 Eq. 212; Wilkinson v. Dent, 6 Ch. 341, (b) Re Vardon, 31 Ch. Div. 279. (c) Green v. G., 19 Ves. 665. 118 ELECTION. apiilied, and probably in most cases correctly applied, in order to eifectuate what the author of the inbtruiuent would l^robably have done, if he had known the real facts of the Disapproval case ; but the doctrine has not met with universal approba- o c oc nne. Wqt^^ and it is quite possible to suppose cases where its appli- cation may work hardship. Moreover although the subordi- nate doctrine of compensation is as firmly established as the principal doctrine of election, it is difficult to see how a testator's intention is carried into effect in the case above supposed of his purporting to devise to A., Blackacre, which in fact belongs to B., and to B., Whiteacre, which belongs to himself (the testator), if A. only receive the money value of Blackacre. The intention would clearly not be carried into effect, if Blackacre consisted of a field in front of A.'s house, and essential to the enjoyment thereof, {d) General and Mr. Swauston in a note to an old case of Dillon v. ParJcer, (e) particular ggyg a rj^Y^^. r^jig pf ^ot claiming; by one part of an instrument intention; — . '' _. .ii • i, i separate use m contradiction to another, has exceptions, and the ground, without power of exception seems to be, a particular intention, denoted by ti(m-—Ji'e' *^^ instrument, different from that general intention, the Vardon. presumption of which is the foundation of the doctrine of election." This statement of the law has been somewhat recently approved by the Court of Appeal in Be Vardon. (/) In this case, a settlement had been made on the marriage of an infant by which both the husband and the wife's father brought property into settlement, part of that contributed by the father being so limited that the wife took the first life interest for her separate use, without power of anticipation. The settlement also contained a covenant by the husband and wife to settle the after acquired property of the wife. The vrife, during coverture, became entitled to certain property with respect to which she elected not to be bound by the settlement, and thereupon the question arose whether the income settled to her separate use, without power of anticipation, could be impounded by way of compensation. It was held by the Court of Appeal that she could not be compelled to give up, and could not give up her interest under the settlement, in order to give effect to a presumed general intention of the authors of the trust, when by the (d) See Sugden on Powers, 570. (e) 1 Swans. 404. (/■) 31 Ch. Div. 275. ELECTION. 119 same instrument such persons liad expressly provided that she should not have any power of disposing of this interest, {g) The law in this respect has not been affected by s. 39 of the Do<^trine not Conveyancing Act, 1881 (c. 41), giving power to the High (j^^^^ ^J Court to bind a married woman's interest in any property, 1881, s. 39, notwithstanding the restraint on anticipation, (li) It will be Void instru- observed that in Re Vardon, the settlement was voidable "^^°*' '^' only, whereas in Codrington v. C, («') cited above, the settle- ment was void. Section 11. — Election in connection with the Execution of Powers. When a person having a special power of appointment. Gift to person piirports to exercise the same by giving the property subject "°* ^° object thereto to persons who are not objects of the power, or in other words, to exercise a power which he does not possess, and by the instrument of appointment, he gives other property belonging to himself, or otherwise freely disposable by him to the person entitled in default of appointment, the latter will be put to his election between the gift of such other property, and that subject to the power, (j) e.g. if a testator, having power to appoint in favour of A. and B., or either of them, £1000 Consols, which would, in default of appointment, go to C, appoint the fund to X., and by the same instrument devise his (the testator's) own estate of Blackacre to C, C. will be put to his election between the appointed property and Blackacre. This rule will not apply, if the result would be to enable Illegal ap- a settlor or testator to effect an illegal disposition of the po'"'^™^^*; , , . . perpetuity. property, e.g. where such disposition would infringe the law against perpetuities. Accordingly where a lady by her will, made an appointment which was void for remoteuess, and bequeathed property of her own to the persons entitled in default of appointment, it was held by Pearson, J., that the (g) See also Re Wells, 42 Ch. D. 658. (/i) Re WJieatley, 27 Ch. D. 614. (z) L. K. 7 H. L. 854. (j) Re Brooksbank, 34 Ch. D. 163; Pickersgill v. Rodger, 5 Ch. D. 171; Intention to Re Wells, 42 ib., 646. Upon the question when a special power will be exercise executed without specially referring thereto, see Bruce v. B., II Eq. power 371 ; Griffith-Boscaiven v. Scott, 26 Ch. D. 358 ; Re Batchellor, W. N. (86) 61; i^e Wait, 30 Ch. D. 617; Re Cotton, 40 Ch. D. 41; Re Williams, 42 Ch. Div. 93; Re Blackburn, 43 Ch. D. 75; Re Denton, 63 L. T. 105; Re Boyd, ib. 92 ; Re Barter, 45 Ch. Div. 179 ; Re Uuddlestone, 3 Ch. (94) 595. 120 ELECTION. will was to be read as if the invalid appointment had been omitted, and that, as it was the law itself which defeated the appointment, such persons were not put to their election between the interests which they took in default of appoint- ment, and the benefits which they took under the will, (it) In this case the appointor was a widow having, under her marriage settlement, a power of aj^pointment in favour of the issue of the marriage over a fund which, in default of appointment, was to be held in trust for all the children, and she appointed part of the fund in trust for one of her Distinction SOUS for life, with remainder to his child or children. It between ^{\\ \)q borne in mind that though a general power of general and . ^ .•. xii i r^ -, .-,. speci:il power, appointment is treated by the Court, when considering the law against perpetuities, as though the donee of the power were the absolute owner of the property appointed, the trusts or interests created by the exercise of a special power are, for this purpose, treated as though they had been contained in the instrument creating the power. (I) It is obvious that if, in the case last referred to, the trusts of the settlement had been in favour of unborn children for life, and after- wards of grandchildren absolutely, the trust in favour of the grandchildren would have been void. Gift to objects The doctrine does not apply where the appointor gives of power. property of his own to the objects of the power, unless such objects are also entitled in default of appointment, e.g. if a fund were settled in trust for the children of A., as B. should by will, appoint, and in default of appointment, in trust for C, and B. makes a will purporting to appoint the fund in favour of a stranger, and giving, out of his own property, legacies to A.'s children, no case of election would arise ; for the stranger would take nothing under the appointment ; but a case of election would arise, if the gift in default of appointment were in trust for A.'s children in equal shares. Excessive ap- Cases often come before the Court where a testator has absolute gift exceeded a power of appointment vetrted in him, e.g. where, to child, with direction to _ settle. W -^e Warren, 26 Ch. D. 219. See also Wollastcm v. King, 8 Eq. 165' explained injra. Intention (I) He E. of Devon, 2 Ch. (96) 567. Upon the question of intention on to make the part of the donee of a power to exercise the same for the limited appointed purpose of a particular disposition on the one hand, or on the other, to property take the property out of the instrument creating the power, and to make donee's own. it his own for all purposes, see Coxen v. Rowland, 1 Ch. (94) 406; Re Boyd, 2 Ch. (97) 232. ELECTION. 121 having a power of appointment in favour of children, he makes an appointment of a share to a daughter absolutely, with a super-added direction that the same shall be settled in trust for her and her husband, for their respective lives, with remainder to their children absolutely. In a case of this kind the absolute appointment in favour of the daughter would be good ; the direction for the settlement of her share would be rejected ; (m) and no question of election would arise. But in a somewhat recent case, (w) a testator having power, under a settlement, to appoint real estate to children of his first marriage only, appointed the same (describing it as his own property) in favour of a son of the first marriage, subject to charges in favour of his other children, including the children of his second marriage, and he devised property of his own to the same son, subject to the same charges in favour of his other children " so as to equalize the shares of all his children in all his property." It was held by Fry, J., that inasmuch as the charges for equalizing the shares were not in favour of persons who would probably be objects of any settlement to be made by the appointee, a case of election arose in favour of the children of the second marriage. The doctrine is applicable only as between a gift under Doctrine not an instrument and a claim dehors the same, and adverse fPP "^'"^ ® ' , between thereto, and not as between one clause and another in the clauses in same instrument. Accordingly in Wollaston v. Kinq, (o) a ^^^ ^^"^^ . - . • 1 • T 1 . ,,, , ./'V y instrument;- testatrix having, under her marriage settlement, power to Wollaston v. appoint a fund in favour of the children of the marriage. King. appointed a portion of the fund to her son (who was an object of the power) for life, with remainder to such persons as he should by will appoint, and in default of appointment, to the three daughters of the marriage. She appointed further portions of the trust funds in favour of two of the daughters ; and by an ultimate trust or gift, she disposed of Residuary the residue of the fund in favour of the three daughters, ^PP°*" ^^^"^ - upon whom she conferred benefits out of her own property. It was held that the power of appointment by will given to the son, was void for remoteness, but that the trust fund (m) Churchill v. C, 5 Eq. 44 ; White v. W., 22 Ch. D. 559, and cases there cited ; Cooke v. C, 38 ih. 202. (w) White V. W., mpra. (o) 8 Eq. 165. See also WalUnger v. W., 9 Eq. 301 ; Re Swinburne, 27 Ch. D. 696: Be Cotton, 40 ib.U; Be Abbott, 1 Ch. (93) 59. 122 ELECTION. Derivative interests existing at donor's death ; — Cooper V. C, was well appointed to the three daughters under the residuary appointment ; and that no case of election arose. It will be observed that in this case the effect of the residuary gift was to dispose of everything which had not before been effectually appointed, and that to have held that the daughters were put to their election between the property comprised in the residuary appointment, and the benefits they took under the will out of the testatrix's own property, would have had the effect of striking out the residuary appointment from the will, which would clearly have been contrary to the iuteution of the testatrix. The doctrine of election applies where the author of the instrument makes a gift of property of his own to a person entitled to a derivative interest, e.g. as next of kin of a person entitled under the instrument who died before the author of the instrument, but whose estate has not been fully administered. Thus, in a modem leading case of Cooper V. C, (p) a widow, having a power of appointment i;i favour of her children (to be exercised before her youngest child should attain the age of twenty-five) over the proceeds of sale of an estate of P. H., by her husband's will directed to be sold after her death, executed a deed within the appointed time, whereby she directed such proceeds to be divided equally among her three children, A., B., and C. She after the appointed time made her will, purporting to devise P. H. to A., and then by successive codicils, gave out of property of her own, certain benefits to A. and C, and legacies to D. and E., children of B., who had, in the mean- time, died intestate. The testamentary appointment of P. H. to A. being inoperative, it was held that C. was put to his election in favour of A., between the benefits which he took under the will, and the third share of the proceeds of P. H. which he took under the deed of appointment ; that D. and E. were put to their election as between their legacies and the third part of the proceeds of the sale of P. H., which they took as next of kin of their father ; and that for the purposes of such election by D. and E., and for any purpose consequential thereon, the debts and funeral expenses of B., and the expenses of administering his estate, were to be treated as apportioned rateably between such third part of (p) \j. R. 7 H. L. 53. See nlso Cooper v. Martin, 8 Ch. 47 ; Pickengill V. Rodger, 5 Cb. D. Itj3; Bennett v. lloiddsworth, ti ih. G71. ELECTION. 123 the proceeds of the sale of P. H. and the rest of his general personal estate, according to their respective shares or amounts. It will be observed that in this case, the derivative Interestg interests of the grandchildren, D. and E., were interests in g°|^^g^^;g" " existence at the time of the death of the widow of the at'terwarda ;— original testator ; but no case of election would have arisen ^''"f" ^' ° ' , 111 . • Fuiteney. if such derivative interests had only come into existence after her death, A person is not obliged to elect between benefits taken by him under a will and an interest which he has, after the death of the testator, taken from another person who has elected to take in opposition to the will. Thus in Lady Cavan v. PuUeney, (5) a tenant in tail of certain estates, with remainder in tail to B., the wife of C, thinking that he, the tenant in tail, had tlie fee, made leases , exceeding his power. By will he devised these estates (with others) to B. for life, with remainder to D., and he gave to C. certain interests in his personal estate, and the residue to D. After the testator's death, D. filed a bill to have the will established. B. elected to take her estate tail in opposition to the will. After her death, C, her husband, claimed to take her estate as tenant by the curtesy, and brought ejectments against the lessees. It was held that the lessees were not entitled to stop the ejectments, and that D. was not entitled to put 0. to his election. So also in Grissell v. Grissell v. Swinhoe, (r) a testator being entitled, under a settlement, 'S'"'*""''^- subject to a life interest, to a moiety of a fund, by his will, recited that he was, under the settlement, " subject to the trusts therein contained," entitled to the whole fund, and he purported to bequeath the whole, giving one moiety to the husband of a lady really entitled thereto in her own right, and the other moiety to the husband of his own daughter. On the death of the former lady, her husband, who had become her administrator, claimed the moiety which properly belonged to her, and one half of the other moiety under the will, and it was held that he was so entitled, and not bound to elect. In Be Wells, (s) by a settlement made in 1842, on the -ffe Wells; — good appoint- ee) 2 Ves. 544. ■ ment under (r) L. E. 7 Eq. 291. instrument (s) 42 Ch. D. 646. See this case also on the qupstion of intention to partly invalid, revoke an exi^sting appointment, and on the construction of s. 24 of the intention to Wills Act 1837 (e. 26). making a will speak from the death of the revoke testator, in absence of intention to the contrary. Wills Act 1837, s. 24. 124 ELECTION. marriage of a female infant, the husband and wife covenanted that as soon as the wife should attain twenty-one, certain real estate to which she was entitled, as tenant in tail, and certain personal property belonging to her, should be con- veyed and assigned to trustees, upon trust, after the death of the wife, for the children of the marriage, as (in the events ■which happened), the husband should, by deed or will, appoint, and in default of appointment, in trust for the children of the marriage, in equal shares ; and by the same settlement the husband assigned a policy of assurance upon his own life to the trustees, upon the same trusts. The wife died in 1857, without having executed any disentailing assurance of the real estate, and leaving several children of the marriage surviving. It was of course held that the settlement was in itself inoperative, so far as the real estate was concerned ; but the decision of Stirling, J., upon the further facts of the case, (which were somewhat complicated)^ shows that an appointment under such circumstances, by the husband of part of the wife's personal estate, and of the policy moneys to the eldest son would have been good, if expressed to be in addition to the real estate, which he took as his mother's heir. Intention to elect ; — knowledge of rights. Continuing in possession. Section III. — How Election may he made. The act of election may be either express or implied. Cases coming under the latter head must, as a rule, depend each on its own special circumstances ; but the acts relied on as amounting to an election must be clear and unequivocal in their character; and if the person supposed to have elected thereby purport to give up property of his own, amounting in some shape to a gift, the transaction must have taken place when he had a full knowledge of his position, and of his rights, including knowledge of the right to elect, (t) If a person bound to elect between two properties should continue in possession of one of them for so long a time that it would be inequitable to disturb such possession, he will, prima facie, be deemed to have elected to take such property. This rule has been established for the peace of families and (0 Seaton v. S., lo App. 77; Wilson v. Thornbury, 10 Ch. 248; Dewar V. Maitland, 2 Eej. 838. ELECTION, 125 of the public, (u) But if a person, without being called upon to elect, continue in the receipt of the rents and profits of both properties, such receipt affords no proof of preference, and will not in, general, be considered as an election to take the one, and reject the other, (v) Accordingly where a widow, for sixteen years, enjoyed a provision made for her by her husband in lieu of dower, but in ignorance of her right to the latter, it was held that she had not lost her right to elect, (w) But a person will be deemed to have elected, if he has sold Sale of his own property in respect of which the obligation to elect P^^P^'" y* has arisen, (x) So also where a widow having an equity to set aside a Consent to settlement of reversionary interests in personal property, ^^ °^^^^ ' made by herself on the occasion of her marriage during in- fancy, consented, as defendant, and when of full age, to a decree by which certain policy moneys settled by the husband were ordered to be paid to the trustees of the settlement, it was held that this amounted to an election to confirm the settlement and to treat it as binding upon her. (?/) When a person absolutely entitled has elected, his election Election by will bind all persons claiming under him ; (z) but it would ''^^^p. i appear that if the representatives of persons who were bound entitled ; to elect, and who, without expressly electing, have accepted compensation, benefits under the instrument imposing the obligation to elect, can ofier compensation, and place the other party in the same situation as if those benefits had not been accepted, they may renounce them, and elect for themselves, {a) A difierent rule applies to persons having only a partial Election by interest. Each member of a class, e.g. next of kin, has a ^^^* owner, separate and independent right of election. (6) If a person liable to elect neglect or refuse to declare his Action to election, on request, it is competent for the party in whose compel party favour it is to be made, to compel him so to do, by commenc- ing an action in the nature of an action for administration (w) Dewar v. Maitland, supra ; Tibbits v. T., 19 Ves. 663. (v) Padbury v. Clark, 2 M. & G. 298 ; Be Turner, 66 L. T. 758. (w) Sopwith V. Maughan, 30 B. 235. (a;) Rogers v. Jones, 3 Ch. D. 688. ly) Wliite V. Cox, 2 Ch. D. 387; compare Seaton v. S., 13 App. 61, cited infra. (z) Dewar v. Maitland, 2 Eq. 834. (a) Dillon v. Parker, 1 Swans. 385. (6) Fytche v. F., 7 Eq. 494. 126 ELECTION. or the execution of trusts ; (c) and the costs of such an action would follow the rules as to the costs of such actions, having regard to 0. 55, r. 10. But the person liable to elect is entitled to insist upon being fully informed beforehand as to the relative values of his own property which, by the instru- ment in question, is attempted to be taken from him, and of that which the author of the instrument thereby purports to confer upon him. It was held by Wickens, V.C., in 1871 (d), in accordance with certain old authorities, that if the question whether it would be . more- advantageous for a person to elect to take under or against the instrument, depended on the result of the usual accounts of the estate of the author of the instrument, he might, in most cases, file a bill to have such accounts taken, i.e. if no suit were pending for that purpose. The right to institute an action for this purpose is not now by any means a matter of course, having regard to 0. 55, r. 10, above referred to; and if it should be unnecessarily commenced, the plaintiff may be ordered to pay the costs thereof personally. Section IV. — Election hy persons under disability. The doctrine is applicable notwithstanding any personal incapacity of the person who, according to the principles stated above, would, if sui juris, be put to his election. A married woman entitled for her separate use, without any restraint on anticipation is competent to elect in the same manner as if she were a feme sole; but in other cases of coverture, the Court itself (generally after a preliminary inquiry) (e) makes the election for her benefit, and effectually binds the interest of the party entitled to set up a paramount title, by an appropriate declaration in favour of persons taking under the instrument on which the question of election arises, with incidental directions, where necessary, for conveyance, assignment, release, or the like, adapted to the special circumstances of each case (/). The like observa- tions apply to the case of an infant or person of unsound (c) Cooper V. C, L. R. 7 H. L. 53. (d) Douglas v. D., 12 Eq. 637. (e) Cooper v. C, L. R. 7 H. L. 53. (f) Re Lord Chesham, 31 Ch. D. 473; Cahill v. C, 8 App. 426; Be Montagu, 1 Ch. (96) 550, ELECTION. 127 mind not so found by inquisition ; (g) b\it a person of unsound miud so found elects by his committee, with the sanction of the Judge in Lunacy. (Ji) It will be borne in mind that by the Statute 18 & 19 Vict,, Infants' " 0. 43, a male infant of the age of twenty years, or a female ^'^V'^or"* infant of the age of seventeen years or upwards, was enabled, with the sanction of the Court of Chancery, (i) on marriage, to make a binding settlement of his or her property, whether real or personal, and whether in posses- sion, reversion, remainder, or expectancy. In Seaton v. S., Seaton v. S. ;— (j) an infant ward of Court, in 1862, married without the settlement sanction of the Court. After the usual inquiry as to her reversionary fortune, a post-nuptial settlement was executed by the interest in husband and wife, and duly approved by Wood, V.C., fn\-eTre!tate. whereby a reversionary interest of the wife in personal estate, under the will of a testator who had died before Malins' Act came into operation, was settled upon trust for the wife for life, with remainder in trust for the children of the marriage. The wife, during coverture, among other things, concurred in the appointment of new trustees of the settlement, and executed a deed of release to the former trustees. She afterwards obtained a dissolution of the marriage, and then successfully presented a petition to the Probate Division, for variation of the terms of the settlement. It was held by the Court of Appeal, and by the House of Lords that the Infants' Settlement Act above referred to removed the disability of infancy only ; that neither the sanction of the Court nor the Act could make the settlement of the wife's reversionary interest binding upon her; that no acts of acquiescence or confirmation could have that effect, unless they amounted to an actual disposition by her, being discovert, of the property, to the trustees of the settle- ment, and that she was accordingly entitled to a transfer to herself of the property, which had fallen into possession after the dissolution of the marriage. The like result would, no doubt, have followed if the wife's property had consisted of real estate and the conveyance thereof had not been (g) Wilder v. Pigott, 22 Ch. D. 263. (h) Be E. of Sefton, 78 L. T. 765; and see the Lunacy Act 1890 (c. 5), s. 108. (i) Now t]ie Chancery Division of the High Court of Justice. See s. 76 of the Jud. Act, 1873, c. 66. (j) 13 App. 61. 128 ELECTION. Policy treated as a rever- sionary chose in actii/ii. acknowledged under s, 77 of the Fines' and Recoveries Act, 1833 (c. 74). (/c) The decision in Seaton v. S. (I) would, no doubt, have been otherwise if the settlement had been executed before marriage ; and as stated by Lord Macnaghten, the settlement was good even as a post-nuptial settlement, so far as related to part of the property which had been during GreenMly. coverture actually transferred to the trustees. But in a North, 4c. Co. subsequent case of Greenhill v. North, &c. Co., (m) the intended husband and wife, being both of full age, entered into an agreement for the settlement . of all the wife's property, including a policy of assurance on the life of another person, to which the wife was entitled under an instrument also executed before Malins' Act, and which policy was taken by the Court to be a reversionary chose in action. A memorandum in writing of the agreement was signed before the marriage, and the settlement therein referied to was, after the mar- riage, executed by the husband alone. By a subsequent deed, executed by both husband and wife, after reciting the agreement, the policy of assurance was, with other property, assigned to the trustees, upon the trusts of the settlement ; and the wife afterwards, in exercise of a power of appointment contained in the settlement, mortgaged the policy. It was held by Stirling, J., that the wife had elected to confirm the settlement, and that the mortgage was valid. His Lordship distinguished this case from Seaton v. S., on the ground that the agreement had been entered into before the marriage, though, under the provisions of the Statute of Frauds, it could not originally have been enforced against the wife, (n) (k) But see dictum of Lord Selborne, L.C., in Cahill v. C, 8 App. 432. (l) 13 App. 80. (m) 3 Ch. (93) 474. (n) As to legacy duty on personalty in respect whereof a person is put to his election, see Laurie v. Glutton, 15 B. 131. Legacy duty. { 129 ) CHAPTER VI. SATISFACTION ; — REPETITION OF LEGACIES. The following definition of the doctrine of satisfaction has Definitioa. been approved in a modern leading case before the House of Lords (a) — *' Satisfaction is the donation of a thing with the intention that it is to be taken, either wholly or in part, in extinguishment of some prior claim of the donee." The subject has generally been treated under three heads. Divisions of namely, first, the satisfaction or ademption of legacies by *"'^J'^*^*- portions ; secondly, the satisfaction of portions by legacies ; and thirdly, the satisfaction of debts by legacies. The principles applicable to the first two heads differ from each other in some few particulars, which will be pointed out below, and it is proposed, in the fullowing observations, to treat them separately ; but the principles stated in relation to one of them only may be taken as applicable to the other also, unless the contrary appear. The principles applicable to the third head are materially different from those applic- able to the first two heads. Section I. — Ademption of Legacies by Portions. When a father has given a legacy to a child, or to a Rule against person to whom he stands in loco parentis, without stating double ,.,. . 1/-I 1111 1 portions. the purpose lor which it was given, the Court holds that the same was intended as a portion or provision for the child ; and if the father should afterwards advance a portion, e.g. give or settle a sum of money or stock on the marriage of that child, he will, prima facie, be considered to show an intention to anticipate the benefit conferred by the will, and to substitute a new provision, either entirely, or pro tanto, according as the second provision is equal to or greater or less than the first (6). If the second provision consists of a (a) Lwd Chichester v. Coventry, L. R. 2 H. L. 95. (6) Re Pollock, 28 Ch. Div. 557. 130 SATISFACTION. Value of stock. Foundation of doctrine. Presumption. Pym V. Lockyer. Only child. Payment in advance. sum of stock, its value must be ascertained as at tlie time or date of the gift or settlement (c). The principle in question lias been based upon a somewhat artificial rule, namely, that the father, in making provision for a child, is paying a debt of nature, and that he does not intend to give the child more than one portion, unless he should express a clear and unequivocal intention to the contrary (d). In other words, the Court "leans against double portions " The doctrine now under consideration presumes an inten- tion on the part of the father that in executing the second instrument, he supposed himself to be substantially satisfying the obligations of the first, and that the second gift was made (so far as it would extend) in substitution for the first. If the second gift has been made by a written instrument, that instrument is, prima facie, to be construed as if it had contained a declaration of intention to this effect. The following observations of Lord Cottenham, L.C., in Pym v. Lockyer, (e) have been somewhat recently stamped with the authority of the Court of Appeal (f) as being in accordance with the existing law. " A father, who makes his will, dividing his property amongst his children, must be supposed to have decided what, under the then existing circumstances, ought to be the portion of each child, not with reference to the wants of each, but attributing to each the share of the whole which, with reference to the wants of all, each ought to possess. If, subsequently, upon the marriage of any one of them, it becomes necessary or expedient to advance a portion for such child, what reason is there for assuming that the apportionment between all ought therefore to be disturbed? The advancement must naturally be supposed to be of the particular child's portion ; and so the rule assumes ; as it precludes the child advanced from claiming the sum given by the will, as well as the sum advanced." There is no difference in this respect in the case of an only child (g). In a case like that supposed by Lord Cottenham, the (c) Watson v. W., 33 B., .'574. (d) Ex parte Pye, 18 Ves. 151. See also Be Lacon, 2 Ch. (91) 492, C. A. (e) 5 My. & Or. 46. (/) Re Lacon, 2 Ch. (91) 497, C. A. (g) Twining v. Powell, 2 Coll. 262. ADEMPTION. 131 original portion would, according to the existing anthorities, be said to be " adeemed " ; but the case is rather one of a payment in advance than of an ademption. The presumption will not be rebutted by slight differences Slight dif- between the two gifts or provisions. (K) A gift of residue to f'^^'^'i' .';S '" ,., , ,, -. . ,. two gifts. children may be adeemed m toto or pro tanto, according to „.. , circumstances, by advances inter vivos; and a covenant by residue. deed to settle a given sum of money may, in like manner, be stranger, &c., satisfied by the gift of an unascertained residue (i) ; but in °ot entitled the former case, such advances will only be brought into j-uig account for the benefit of the children among themselves, Mcincrtzagen and not for the benefit of a widow or a stranger. In ^' " '■'^^* Meinertzagen v. Walters, (j) a testator directed his trustees to pay the income of one moiety of his residuary estate to his widow, during her life, and to divide the other moiety between his children, in equal shares, as tenants in common. The testator afterwards made advances to some of his children. It was held that the widow was not entitled to have her income increased by having the advances brought into account, in estimating the value of the residue. It has been held in certain old cases (/c) that in order that Two gifts of the rule against double portions may apply, it is necessary P'"°Pf''*'y ^^^ that the gifts should be of property ejusdem generis, and generis ; — accordingly that where a testator makes a gift to a child of legacy onlj real estate, a beneficial lease, a share of works, or anything fanto by else of a like kind, and says nothing about the value, he smaller gift, is not to be taken to be giving it in satisfaction of a pecuniary bequest. The authority of some of these cases is doubtful, having regard to the fact that they were decided before the case of Pym v. Lochyer (I) in which the law was settled by Lord Cottenham, L.C., that a legacy is adeemed by a subsequent and smaller gift inter vivos, only pro tantOy and not in toto. It has, however, been held in more recent times that a Ademption gift of residue was partly adeemed by an agreement on °^ ?'^^ °^ annuity, &c. (/i) Re Lawn, 2 Ch. (91) 489, C. A. ; Nevin v. Drysdale, 4 Eq. 517. (i) Lady Thynne v. E. of Glengall, 2 H. L. C, 131 (explained in the next Section of this Chapter) ; Lord Chichester v. Coventry, L. R. 2 H. L. 88 ; Fowkes v. Pascoe, 10 Ch. 351 ; Stevenson v. Masso7i, 17 Eq. 78. (./) 7 Ch. 670. See also Stewart v. S., 15 Ch. D., 539. (k) See cases cited in Lord CJiichester v. Coventry, L. R. 2 H. L. at p. 96. (0 5 M. & Cr. 29. ♦ K 2 132 SATISFACTION. Real estate, &c., of speci- fied value. Be Lawes. Contingent legacy. Ademption of absolute interest by gift of life interest, &c marriage to pay an anntiity ; (ni) and that a father's covenant to pay his son an annuity of £1000, was satisfied by legacies producing an income exceeding that sum. (n) It is now settled that when the parent gives to a child real estate, a lease, business, or other thing of a like kind, and estimates it as being of a specific value larger in amount than a legacy previously given, and the legatee takes it, he takes it by way of ademption of the legacy, at the estimated amount ; and in that case, it makes no difi"erence whether the testator directs the thing to be sold, and gives him the proceeds, or directs the thing to be taken at a specific amount, (o) Thus, in Be Lawes, (p) the father of an illegitimate son, to whom he had placed himself in loco parentis, entered into a bond conditioned for the payment to the son of the sum of £10,000 on a cer- tain day, four years later. Shortly before the day appointed for payment, the father took the son into partnership, and it was provided by the articles then entered into, that the capital should consist of £37,500, to be brought in by the father, of which £19,000 was to be considered as belonging to the son. The £10,000 was never paid. It was held by the Court of Appeal that the rule against double portions applied ; and that the benefits given to the son under the articles of partnership, were to be taken in satisfaction of the sum due under the bond. This, it will be observed, was a case of satisfaction of a portion by a legacy ; but the like principle applies also to the case of ademption of a legacy by a portion. A contingent legacy will not, however, be a satisfaction of a vested portion; {q) unless perhaps where the contingency is so remote as not to be worth taking account, (r) In accordance with the doctrine now under consideration, when a parent has, by his will, given a portion to his daughter absolutely, and has, by a settlement on her marriage, after the date of his will, covenanted to pay to the trustees thereof, a sum of like amount for the benefit of her and her husband and issue, the mere circumstance that she would have taken under the will an absolute interest, (m) Dawson v. D., 4 Eq. 504. (n) Montagu v. E. of Sandwich, 32 Ch. Div. 525. (o) Re Lawes, 20 Ch. Div. 88 ; Be Vickers, 37 Ch. D. 525. (p) 20 Ch. Div. 81. Iq) Lord Chichester v. Coventry, L. R. 2 H. L. 96. (r) Powys v. Mansfield, 3 My. & Cr. 374. ADEMPTION. 133 wliile under the deed, she takes only a life interest, prima facie makes no difference. The parent is deemed to consider the two gifts to be the same, — on the ground that the daughter would probably have settled the sum given by the will in the way in which it was settled in her parent's life- time. («) In an old case of E. of Durham v. Wliarton, (t) a testator E. of Durham bequeathed the sum of £10,000 in trust for his daughter, "^^ Wharton;— (linGrGncG in for life, and after her death, for all her children absolutely, gifts. one half of such sum to be paid at the end of three years, and the other half at the end of six years after his death, with interest until payment. He afterwards, on the marriage of his daughter, gave £15,000 to the intended husband, as her marriage portion; and in consideration thereof, the husband secured to the wife, during the joint lives of herself and her husband, the annual sum of £500, for pin money, and also a jointure of £l,200 per annum, and portions for the daughters and younger sons of the marriage. It was held by the House of Lords that the £15,000 was to be taken as a satisfaction of the £10,000 bequeathed by the will. It will be observed in this case that under the will all the children of the daughter were entitled after their mother's death ; while by the settlement, the portions were for the younger children only. In Twining v. Powell, (u) a testatrix Tmning v. bequeathed to A., her adopted daughter, a legacy of £10,000 ; Powell;— and directed that in case A. should die without children, the contino-ent same should be given in charity. The testatrix afterwards legacy in transferred to A. the sum of £12,000 Consols. It was held ''^^f ^'Jer by ' gift to tenant by Knight Bruce, V.C., that upon the death of A., -without tor life, children, the legacy was adeemed not only as to her, but also as to the ultimate gift in charity. The presumption against double portions may be either rebutted or fortified by intrinsic evidence derived from the Intrinsic nature of the two provisions. Where the two provisions are evidence from '■ TiT(v nature of two oi the same nature, or there are but slight differences between provisions. them, the two instruments afford intrinsic evidence against a double provision. Where the two provisions are of a dif- ferent nature, the two instruments afford intrinsic evidence (s) Lord Chichester v. Coventry, L. R. 2 H. L. 89 ; Cooper v. Macdonald, Gift to 16 Eq. 258. See also Nevin v. Drysdale, 4 Eq. 517 (gift on marriage to husband, husband of legatee). (0 3 CI. & F. 146. (m) 2 Coll. 262. 134 SATISFACTION. What con- sidered slight differences. Re Lacon; — share in business. in favour of a double provision. Previous decisions afford but slight assistance in these cases ; for it is not possible to define beforehand what are to be considered as slight dif- ferences. Slight differences are such as, in the opinion of the Court, leave the two provisions substantially of the same nature. («;) Thus in Be Lacon, {lo) a testator, being entitled to twenty-one twenty-fourth shares in a breweiy partner- ship, bequeathed the same to his three sons equally, as tenants in common. Subsequently E., the only one of the three sons who had been employed in the business, pressed for an increase of the salary of £1000 per annum which he had been receiving from the firm, as manager of the business ; and eventually the testator arranged a new deed of partner- ship, under which E. was admitted a partner, the testator making over to him two of his twenty-one shares ; and E. accepted the position, and relinquished his salary as manager, but thenceforth and until the death of the testator, received instead, his proportion of the profits as a partner, which was larger in amount than the salary. The Court of Appeal was inclined to think that the two shares were not intended as a portion, but as remuneration for E.'s services as manager, and held that the circumstances showed that the testator intended E. to have a greater share in the business than his brothers, and that the presumption against double portions was rebutted. It should however be borne in mind that in a case of this between father \{x^^ the presumption will not necessarily be excluded by and thild ; — i /• . i i , i i i valuable ^he mere lact that there has been some contract between the consideration, father and the child, or that some valuable but inadequate consideration has passed from the child to the father, e.g. a covenant to pay or the charge of an annuity, (x) Contract, &c.. Eule against double portions applicable to portion under settlement. Section II. — Satisfaction of Portions hy Legacies. The leaning of the Court against double portions is applic- able to the case of satisfaction by a legacy of a portion arising under a settlement — i.e. to the case of satisfaction strictly so called, as well as to that of ademption of a legacy by a (v) Lord Chichester v. Coventry, L. E., 2 H. L. 83. (tp) 2 Oh. (91) 482, C. A. Compare Be Vickers, 37 Ch. D., 525. (x) Be Viclcers, 37 Oh. D., 534. SATISFACTION. 135 portion ; and accordingly where a father, on the marriage of a child, enters into a covenant for payment to trustees, at or before his death, of a sum of money to be held in trust for the child, and his or her wife or husband, and the issue of the marriage, and afterwards bequeaths a legacy to the trustees, on the like trusts, the legacy will, prima facie, be held to be given in satisfaction of the covenant, either altogether, or pro tanto, as the case may be. {y) If the covenant were for the payment of £10,000, and the legacy amounted to or exceeded that sum, there would, prima facie, be a complete satisfaction ; but if the legacy amounted to £4,000, the balance of £6,000 only would be payable to the trustees of the settlement on the father's death ; so that the person entitled under the settlement would take nothing under the bequest. It is difficult to see how, in the latter case, the intention Satisfaction of the parent is carried into effect. A case of this kind -P'"^ tanto. stands upon a totally different footing from the corre- sponding case of ademption ; for if the father had, in the first instance, given a legacy of £10,000 and then given a sum of £4,000 on marriage, it might not unreasonably be supposed that it was owing to forgetfulness or inadvertence on his part, that he did not alter his will, by cutting down the legacy to £6,000, — especially if he had other children to provide for. The rule, however, as to the partial satisfac- tion by a legacy of a provision made by settlement (as stated above) was, in the year 1783, applied in a case of Warren v. W. (z) — on the ground of forgetfulness on the part of the testator whose will was then in question — and it does not appear to have been since questioned. Cases of this kind however do not often occur. When a father first makes an immediate provision for a Doctrine not child, e.q. pays down a large sum of money on the child's applx^able to • n ,. 7 1 .1 1 ^ xi immediate marriage, and afterwards bequeaths a legacy to the same provision. child, the rule against double portions will not apply; for the rule being supposed to be founded on the intention of the father, he must, in this case, have intended the child to take both provisions, (a) In other words there can be no satisfaction by a legacy of a portion under a settlement, except (y) Re Pollock, 28 Ch. Div., 557; Thacker v. Key, 8 Eq. 408. (z) 1 Bro. C. C. 305. (a) Taylor v. Cartwrighf, 14 Eq. 176. 136 SATISFACTION. Codicil ; — adeemed legacy. Slight differences in two pro- visions ; — Thi/nnc v. E. of Glcngall. Montagu v. E. of Sand- wich ; — ademption of annuity by lesacies. when the settlement creates a debt or liability on the part of the father. But a codicil confirming a will, will not have the effect of reviving a legacy previously adeemed or satisfied, (b) In cases of satisfaction strictly so called, the leaning of the Court against double portions is not rebutted by slight differences between the two gifts or provisions. Thus in Lady Thynne v. E. of Glengall, (c) a father having, upon the marriage of his daughter, agreed to give her a portion of £100,000, transferred one-third part thereof in stock to the four trustees of the marriage settlement, and gave them his bond for the transfer of the remainder, in like stock, the latter stock to be, on his death, held in trust for the daughter for her separate use, for life, and after her death, for the children of the marriage, as the husband and she should jointly appoint. The father afterwards by his will gave to two of the trustees of the settlement a moiety of the residue of his personal estate, in trust for the daughter for her separate use for life, with remainder in trust for her children generally, as she should by deed or will appoint. It was held by the House of Lords that notwithstanding the ditfereuce in the trusts, the moiety of the residue was to be taken in satisfaction of the sum of stock secured by the bond. So also in Montagu v. E. of Sandwich, (d) a father by a settlement executed on the marriage of his second son, covenanted to pay him an annuity of £1000 for life, and to charge the same on a sufficient part of the real estate he might die seised of; and the settlement contained a proviso that nothing therein contained should prevent the father from dealing with his real estate during his life, or (so only that sufficient real estate were left charged with the annuity) by will. The father died leaving three sons surviving him, and having by will dated subsequently to the date of the settlement, devised his real estate (subject to the charges and incumbrances thereon) in strict settle- ment on his first and other sons in tail male, and having bequeathed the greater part of his personal estate among his children, giving to the second son legacies the income of which, when invested, would be considerably more than £1,000 a year. It was held by the Court of Appeal that the (h) Pmcys v. Mamfield, 3 My. & Cr. 37G. (c) 2 H. L. C, 131. See also Russell v. St. Auhyn, 2 Oh. D. 398 ; Mayd V. Field, 3 Ch. D. 503. (d) 32 Ch. Div. 525. See also Dawson v. D., 4 Eq. 504. SATISFACTION. 137 woitis "subject to the charges and incumbrances thereon," were too general to rebut the presumption against double portions, and that the second son was not entitled both to the annuity and to the bequests under the will. There is an important distinction which should now be Right to noticed between a case of ademption, and one of satisfaction ^|^^* '> in the strict sense of the term. In ademption, the former between gift being made by will, which is a voluntary and revocable ademption and instrument, the testator can alter it as he pleases ; and ^'^ consequently when he makes a gift by deed subsequently to the will, he may, either by express words, or by im- plication of Equity, substitute a second gift for the former, which he has the power of altering at his sole will and pleasure. In such a case the legacy is, as before stated, said to be adeemed, or taken out of the operation of the will. But when a father, on the marriage of a child, enters into a covenant to settle either land or money, he is unable, of his own free will, to nullify or alter that covenant ; and if he by his will confers benefits on the same objects, and states, or leaves the law to presume, that they are to be taken in satis- faction of the covenant, he necessarily gives to the objects for whose benefit the covenants were intended, the right to elect whether they will take under the covenant, or whether they will take under the will, (e) In such a case, the general principles of the doctrine of election treated of in Chapter V. will be applicable ; and the objects of the covenant, being in fact purchasers for valuable consideration, namely the consideration of marriage, slighter circumstances are suffi- cient to rebut the presumption against double portions than in the case where the gift by way of settlement follows the will. (/) Thus in Lord Chichester v. Coventry, (g) a father. Lord on the marriage of his daughter, covenanted to pay to the Chichester v. trustees of her settlement the sum of £10,000, to be held difference's in in trust to pay the sum of £200 per annum to the daughter two pro- for life, for pin money, and the remainder of the interest to ^'*'°°^' her husband, and, if she should survive him, to her for life, and after the death of the survivor, to the children of the marriage, as she should appoint. There never having been (e) Lord Chichester v. Coventry, L. R. 2 H. L. 90. (/) lb. ; Montagu v. E. of Sandicich, 32 Ch. Div. 546. Ig) L. R. 2 H. L. 71. Compare Bennett v. Houldsioorth, 6 Ch. D. 671 ; Ee Tussaud, 9 Ch. Div. 363; Paget v. Grenfell, 6 Eq. 7; Russell v. St. Auhyn, 2 Ch. D. 398. 138 SATISFACTION. Direction to pay debts. Observations of Wood, V.C. Different persons in- tended to be benefitted ; — satisfaction as to some only. any children of the marriage, the father by his will, made fifteen years later, devised and bequeathed his residuary real and personal estate, upon trusts for sale and conversion, and out of the proceeds, in the first place, to satisfy his debts and legacies, and subject thereto, in trust, as to one moiety thereof, for the daughter for her separate use, for life, with a general power of appointment afterwards, to the exclusion of her husband, making no mention of children. The House of Lords, in accordance with the opinion of Turner, L.J., and reversing the decisions of Knight Bruce, L.J., and Wood, V.C, held that the gift by the will was not a satisfac- tion of the father's covenant, and that the £10,000 was to be deducted from his assets, before the division thereof into moieties. The Law Lords considered that the provisions of the will and of the settlement were substantially dijQferent. But they strongly relied on the considerations that the provision made for the daughter constituted a debt, that all the debts were to be paid before the residue could be divided, and therefore the shares of the ultimate residue could not have been intended to be given on an implied condition that the daughter should give up the claim to her debt. "With reference to the main ground of this decision, it was subsequently observed by Wood, V.C, (h) that after this case " it will be exceedingly difficult to hold that any subsequent provision by will, after a covenant or engagement by bond in a previous instrument, will be a satisfaction of the debt contained in the previous instrument; because there are so very few wills in which there is not a direction to pay debts, that the case of course would seldom happen." In cases of satisfaction of a covenant by a bequest, the persons intended to be benefitted by the covenant, and those intended to be benefitted by the bequest, must be the same. In cases of ademption they may be, and frequently are, different. (^) Where a father has first entered into a cove- nant to settle a sum of money on his child for life, with remainder to the issue of the child's marriage, that covenant is not satisfied by a bequest of a like sum of money to the child absolutely. It is only satisfied pro tanto, that is to (h) Dawson v. D., 4 Eq. 513. See also Fox v. F., 11 Eq. 142 ; Horlock V. Wiggins, 39 Ch. Div. 142. (i) Lord Chichester v. Coventry, L. K. 2 H. L. 91 ; Cooper v. Macdonald, 16 Eq. 258. SATISFACTION. 139 say, so far as the child is concerned. If the father shoiihl, on the marriage of his daughter, enter into a covenant to settle the sum of £10,000 on her for life, remainder to the children of the marriage, a bequest of £10,000 to that daughter absolutely would satisfy her life interest in the £10,000, but would not satisfy or touch the interests of her children. So also if the bequest be to the children of the marriage, omitting the parent, that may be a satisfaction of so much of the covenant as relates to them, but it is no satisfaction so far as the parent is concerned. (_;') A portion is not, for the purposes of the doctrine now Doctrine not under consideration, limited to gifts by will, or on the ''™'*'^'^ *° occasion of marriage ; (¥) but it only applies to gift* of sums marriage; — large enough to be considered portions, and not to small small sums. sums of money given in the parent's lifetime, e.g. to provide a wedding outfit, nor will the Court add up small gifts, in order that the doctrine may be applicable. (J) Sometimes a settlement contains a provision to the effect Express pro- that advancements made to any of the children entitled to ^''*!*"? ^^. *° portions thereunder, by the parent during his lifetime, shall subsequent ' be taken by the children to whom the same have been made will; — in satisfaction of their respective portions in whole or in '^^'^ ^' part, as the case may be. If, in such a case, a provision should afterwards be made for a child by the parent's will, it will not be deemed to be an advancement made by the parent during his lifetime ; and the child will, in absence of a contrary intention appearing by either of the instruments, be entitled to the benefits conferred by the will, as well as to his portion under the settlement. There was formerly some confusion in the authorities on this point ; but the law has now been clearly settled to this effect by the judg- ment of the Court of Appeal in 1873, in Cooper v. C. (m) Where such a provision as last referred to is contained Interest on in a will bequeathing the testator's personality equally advances in among his children, such of the children as may have lifetime. received advances will not be charged with interest thereon ij) Lord Cliichester v. Coventry, L. R. 2 H. L. 92, 95 ; Mayd v. Field, 3 Ch. D. 587 ; Bennett v. Eouldsivorth, 6 Ch. D. 671 ; McCarogher v. Whieldon, 3 Eq. 236 ; Nevin v. Drysdale, 4 Eq. 517. (k) Leighton v. L., 18 Eq. 468. (I) Re Peacock, 14 Eq. 240. (m) 8 Ch. 813. Upon the general question, what will be deemed to be an advancement, within the meaning of such a provision, see Smith v. Crabtree, 6 Ch. D. 591 ; Be Whitehouse, 37 ib. 683. 140 SATISFACTION. implied gift. Settlement by parent giving himself a contingent interest. during tlie testator's lifetime, («) unless the will contain some express provision to that effect ; (o) but the children must bring their advances into hotchpot, with interest from the day of the testator's death, up to the time of the distribu- tion of the estate, or if there is a previous life estate inter- posed, from the death of the tenant for life, (p) The interest payable was, until lately, at the rate of 4 per cent., but Stirling, J., recently allowed 3 per cent. only, (q) Hotchpot When a testator, by a hotchpot clause, directs that a fund ^'"^"f*' i"J^fi''' ^^ which he himself has an interest is to be taken as part of the share of one of the residuary legatees, such clause will operate as a gift to the legatee of the testator's interest in the fund, e.g. if the testator gives his residue to his sons A. and B., in equal shares, and directs that the sum of £10,000 owing to him by A., shall be taken in or towards satisfac- tion of A.'s share under the will, A. will be released from the £10,000 debt. But if the £10,000 had been paid and settled by the testator in his lifetime on the occasion of A.'s marriage, upon trusts for A. and his wife, for their successive lives, and then for the issue of the marriage, and in default of issue, for the testator himself, and A. were to survive his father, and die without issue, there should be deemed to be added to the net residue, before division, (1) the testator's contingent reversionary interest in the £10,000 and (2), under the hotchpot clause, the interests of A. and his widow under the settlement, i.e. the whole of the £10,000. Then B. would take a moiety of the aggregate amount, and A. the other moiety, less £10,000 ; and the £10,000 would, subject to the life interest of his widow, form part of A.'s personal estate, (r) Section III. — Person in loco parentis ; — Legacy for a particular purpose. The presumption against double portions applies, as a rule, to legitimate children only. It does not apply to a (n) Be Bees, 17 Ch. D. 701 ; Re Lambert, 2 Ch. (97) 169. (o) Limpus V. Arnold, 15 Q. Div. 300. Class; — (p) Re Rees, supra. As to the construction and effect of directions for direction to memJaera of a class to bring into hotchpot property derived from ex- bring property traneous sources, see Stares v. Penton, 4 Eq. 40. As to such a direction into hotchpot, in general, see Fox v. F., 11 ^7>. 142; Re Buckley, W. N. (93) 95. (q) Re Lambert, 2 Ch. (97) 180. See supra, p. 55.^ n. (zz). (r) Re Cosier, 1 Oh. (97j 325, C. A. ; 67 L. J., Ch. 502 (H. L.). Rule ap- plicable only to legitimate children, &c. I PEBSON IN LOCO PARENTIS. 141 ■wife, (s) or a stranger; nor to an appointment made by Exercise by a mother as the donee of a special power of appointment ; (ss) " 'gg/.^i power nor to an illegitimate child, (t) to whom the donor has not placed himself in loco parentis, (u) In. this respect, a stranger or an illegitimate child has the advantage over a legitimate child. The reason given for such distinction appears to be by no means satisfactory, namely, that the father, in making a provision for a legitimate child, is presumed to be paying a debt of nature, and he does not intend to pay twice over ; whereas in the case of a stranger, or an illegitimate child, each of the two provisions is a matter of mere bounty. But if a legacy appears on the face of a will to be be- queathed even to a stranger, for a particular purpose, and Legacy to a subsequent gift appears by proper evidence to have been stranger for a made for the same purpose, a similar presumption is, prima purpose. facie, raised in favour of ademption. To constitute a par- ticular purpose within the meaning of this rule, it is not necessary that some special use or application of the money, by or on behalf of the legatee {e.g. for binding him an apprentice, purchasing for him a house, advancing him upon marriage, or the like), should be in the contemplation of the testator. It is not less a purpose, as distinguished from a mere motive of spontaneous bounty, that the bequest is expressed to be made in fulfilment of some moral obliga- tion recognised by the testator, and originating in some definite external cause, though of a kind which the law would not have recognised or presumed to exist, if it had not been expressly mentioned, (v) The question whether or not a testator or settlor has placed himself in loco parentis towards any object of his When a person bounty, is often one of some difficulty; but it may be proved ^^'^'1 ^'^ deemed either by intrinsic evidence from the nature and terms of the ;^gy parentis • gift, or by extrinsic, and even parol evidence, (lo) A parent — Potcys v. owes many duties towards his children which are immaterial "^^fi^^' for the present purpose. A person will not, as a rule, be ^^' '^°*^^' (s) Pankhurst v. Hoioell, 6 Ch. 136 ; Meinertzagen v. Walters, 7 Ch. 670. (S8) Re Ashton, 2 Ch. (97) 574 ; 1 Ch. (98) 142, C. A. (0 Re Lacon, 2 Ch. (91) 492, C. A. (m) Re Lawes, 20 Ch. Div. 86. (v) Pankhurst v. Hoicell, supra; Re Pollock, 28 Ch. Div. 556; Re Fletcher, 38 Ch. D. 377. (i«) Re Hamlet, 38 Ch. D. 190; affirmed, 39 Ch. Div. 426. See S. C. "Leaving and also Re Hemingway, 45 Ch. D. 453, on the question when •' without children." leaving children," etc, will be construed as " without ever having had." 142 SATISFACTION. Mother. Fowkes V. Pascoe. deemed to have assumed the position in question, unless he has so acted towards the object, as to raise a moral obligation to provide for bim or her. In the old and leading case of Powys V. Mansfield, (x) a testator bequeathed a legacy of £10,000 to his niece, the daughter of his brother, and afterwards settled the like sum on the occasiou of her marriage. The brother, having only a small income, lived with his children near the testator, at his request. The testator took the greatest interest in, and directed and controlled the children, and was also from time to time referred to on the treaties for their respective marriages, and provided marriage portions for them. It was held by Lord Cottenham, L.C., that the testator had placed himself in loco parentis towards the niece, as well as the other children of the brother, though their father was still living. The onus of proving that a mother has placed herself in loco parentis to a child lies upon those who allege that such is the fact. (?/) In Fowkes v. Pascoe, (jyy) a residuary devisee and legatee had lived with a testatrix in L(mdon, when he was a youth, and while his mother was still alive. He afterwards married, and went to reside near Birmingham ; but whenever he came to London, he made his abode in the house of the testatrix. His children were respectively brought from Birmingham to London to her house, to be baptized from thence, at her church, and by her clergyman ; and their likenesses were the favourite ornaments of her bedroom. It was held that the testatrix had not placed herself in loco parentis towards their father. Presumption may be re- butted by- extrinsic evidence : Section IV. — Admissibility of Extrinsic Evidence. The rule against double portions, being founded on a presumption of Equity, may be rebutted not only by intrinsic evidence, derived from the nature of the two provisions ; but like any other such presumption, by extrinsic, and even by parol evidence of the circumstances under which the subsequent gift was made, including contemporaneous or substantially contemporaneous declarations of the donor, whether communicated to the donee or not. (z) Upon this (z) 3 My. & Cr. 367. See also Be Ashion, supra. ly) Re Ashton, supra. iyy-) 10 Ch. 343. (z) Leighton v. L., 18 Eq. 458 ; Re EorhcTc, 1 Ch. (95) 523. EXTRINSIC EVIDENCE. 143 principle the Court of Appeal in one case (a) admitted extrinsic evidence to show that a gift by a testatrix in her lifetime was intended to be an ademption in toto, and not merely pro tanto, of a legacy for a particular purpose of larger amount to her deceased husband's niece. But but such extrinsic evidence will not be admitted to raise the evidence is not aamissible presumption in the first instance ; and there is no difference in the first in this respect between the case of a deed, and of a will ; for '"stance, though, in either case, evidence is admissible as to the attendant circumstances, no such evidence is, in general, admissible to show what the parties intended to say. (h) However, in a case where a testator had bequeathed a legacy of £3,000, in trust for his daughter and her children, parol evidence was admitted by Wigram, V.C., to prove not only that the testator had made a gift of £500 to the daughter's husband, but also that the testator had made a declaration at the time of the gift that he intended the same to be a partial ademption of the legacy, (c) This, it will be observed, was in no way contrary to the rule that parol evidence is not admissible to add to or vary the terms of a written instrument. But when evidence has once been admitted to show that Counter the donee was intended to take both gifts, counter evidence, ^^^'*^"*'*' by parol or otherwise is, as a matter of course, admissible to prove that the second gift was intended to be a satisfaction or ademption of the first, (e) Section V. — Satisfaction under the Statute 22 d 23 Car. 2, c. 10, ( Distributions.^ The doctrine has been extended by the Statute of Distri- ^o°r''T^ °^ n ■t • t ^ r. ^ «. 22&23 Car. 2 butions, 22 and 23 Car. 2, c. 10, to the case of an intestacy- (c. lO), s. 5, By s. 5 of that Statute, after providing for the mode in ^^ *° advance- which an intestate's personal estate is to be divided, it is enacted that "in case any child other than the heir-at-law who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due (a) Re Pollock, 28 Ch. Div. 552. (b) Be Tussaud, 9 Ch. Div. 374 ; Smith v. Concler, 9 Ch. D. 172. (c) Kirk V. Eddoioes, 3 Ha. 509. (e) Powys V. Mansfield, 3 M. & Cr. 359 ; Be Pollock, 28 Ch. Div. 557 ; Montagu v. E. of Sandwich, 32 Ch. Div. 535. 144 SATISFACTION. Exception in Wliat deemed an advance- ment under section. to the other children by such distrilnition as aforesaid ; then so much of the surphisage of the estate of such intestate [is] to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal, as near as can be estimated ; but the heir-at-law, notwithstanding any land that he shall favour of heir, jjr^yg ]yy descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate." It has been held by Pearson, J., (following a previous decision of Wood, V.C.) that the payment by a father of a sum of £1200 to enable his son to pay a debt of that amount, was an " advancement by portion " within the meaning of this section, and liable to be deducted out of the son's share upon the death intestate of his father. (/) It has also been held that the payment of the price of plant and machinery, or of a sum of money to start a son in business, or as his admission fee to one of the Inns of Court, with a view to his call to the Bar, or as a premium upon his being articled to a solicitor, or for the purchase of a commission in the army, amounted to an advancement ; but not the price of an outfit or passage of an officer and his wife, on going abroad, (g) Sums paid by a parent by way of annual allowances will not amount to a satisfaction under the Statute. They are merely examples of the mode in which the father chooses to deal with his own income in maintaining his family. Accordingly where a husband, by a deed of separation, covenanted to pay a life annuity of £200 to each of his daughters, it was held that after his death, intestate, so much of the annuities as had been paid to the daughters in his lifetime were not advancements ; but that the value of each annuity was to be estimated as at his death, and deducted from the amount of each share. (Ji) Advancements to children by an intestate do not, under the Statute, bear interest up to the time of the intestate's death; but it was decided in the year 1880 that from that time they bear interest at 4 per cent, (i) if) Re BlocUey, 29 Ch. D. 250: contra, Taylor v. T., 20 Eq. 155. (fj) Boyd V. B., 4 Eq. 305 ; Taylor v. T., supra. (h) Hatfield v. Minet, 8 Ch. Div. 136. (i) Stewart v. S., 15 Ch. D. 539. As to the present rate of interest, compare Re Lambert, 2 Ch. (97) 180, explained in s. II. of this Chapter; also supra, p. 55, n. {zz). Annu.ll allowances. Interest on advances. SATISFACTION OF DEBTS BY LEO AC IBS. 145 Section VI. — Satisfaction of Debts hy Legacies. When a debtor leaves to his creditor a legacy as great as General rule, or greater than the amount of the debt, without taking any notice thereof, the legacy will be deemed to be a satisfaction of the debt. But if the amount of the legacy be less than that of the debt, there will be no satisfaction— not even pro tanto. (J) The rule applies when the debtor and creditor stand Satisfaction of towards each other in the relation of husband and wife. It ^^j|jjj or*^\vife also applies when the relation is that of parent and child, if by legacy ; the debt is not one in the nature of a liability on the part of the father to provide a portion for his child. If the debt is of this nature, then the case falls within the rule against double portions already treated of in S. II of this Chapter. (¥) The like observation applies when the testator and debtor is a person standing in loco parentis towards the legatee. More- by settlement. over when a father is indebted to a child, or if he is liable to the child in respect of a breach of trust, and he on the marriage of that child makes a provision for him or her which is equal to or greater than the amount of his debt or liability to that child, the presumption is prima facie that he has satisfied the debt or liability. In accordance with this principle, PlunJcett v, Lewis (l) PlunMt v. was decided by Wigram, V.C., over fifty years ago. In this case it was also held that it made no difference that the settlement was expressed to be made in consideration of the father's natural love and affection for the child ; nor that the intended husband of the child was not aware df the father's breach of trust. Surely if an intended husband were to say to his intended father-in-law " I will settle £5000, if you will settle the like amount," it ought to make considerable difference, whether the father is making a gift of the whole of the £5000, or was, without the husband's knowledge, partly satisfying an existing liability. But in a recent case of Crichton v. Crichton v. C. C, (to) C, the tenant for life under his own marriage settle- (./) Be Horloclc, 1 Ch. (95) 518 ; Be Fletcher, 38 Ch. D. 373. (fc) Lady Thynne v. E. of Glengall, 2 H. L. 0., 154. (0 3 Ha. 316. (»i) 1 Ch. (96) 870. 146 SATISFACTION OF DEBTS ment, dated in 1832, got possession of the trust funds, and invested part thereof in the joint names of himself and his son A. on unauthorised securities, comprising the sum of £4000 dock stock. On the marriage of A., C, out of his own moneys, settled on A. sums of money exceeding A.'s share in the funds subject to the trusts of the settlement of 1832. In A.'s settlement there was included the above mentioned sum of dock stock, which A. joined with his father in transferring to the trustees of the settlement, under the impression that it formed part of the father's property, and the father made representations to that effect to the intended wife, and her legal advisers. It was held by the Court of Appeal in an action by the representatives of C.'s children, to have the funds of th^ settlement of 1832 replaced, that though the burden was on the plaintiffs to show that the money settled by the father was not intended to be a satisfaction of his liability, they had, by the correspondence with the father on the making of A.'s settlement, discharged themselves of that burden, and that A. was not to be treated as having received the dock stock, so as pro tanto to reduce the claim of the plaintiffs to have the trust funds replaced. Observations The general rule stated above is grounded on reasons on rule. highly artificial, and by no means satisfactory. It was established nearly two hundred years ago, and no judge has since ventured to make any alteration thereof except by establishing exceptions thereto. The effect of the rule is that if a person indebted in the sum of £100 bequeath a legacy of that amount to the creditor, the latter will take nothing at all by the gift ; for if the debtor has left sufiScient assets, the creditor can compel payment of his debt, even against the wishes of the debtor's legal personal rej)re- sentative ; whereas if the legacy had amounted to £99 only, the creditor would have been entitled to be paid the amount of his debt, as well as the legacy. The rule is supposed to be founded on the intention of the debtor, having regard to the maxim, "■debitor non preemmitur donare" But it is not a case of presumption ; for the debtor has professed to give to his creditor; and does not purport to pay a debt. In some of the old cases, it was also attempted to justify the rule on the principle that a man must be just before he is generous; but, as was pointed out by Lord King, L.C., in the old leading case known as Chancey's BY LEGACIES. 147 Case, (n) the debtor may have left sufficient estate to enable him to be generous as well as just. There will of course be uo satisfaction when the debt has Debt incurred been incurred subsequently to the date of the will. ^^ wlli?^"^ ^ In order to mitigate, where practicable, the hardship of the Lg^nin? of the general rule stated above, several exceptions have been Court against engrafted thereon, upon grounds almost as artificial as the '""If' ^ '^ ' 1 & ditferences. rule itself. Accordingly while the Court leans strongly against double portions to children, and disregards small differences in the nature of the two provisions, j'^et it leans strongly against the doctrine of satisfaction of debts by legacies, and will regard and even take advantage of small differences, in order to exclude the doctrine, and entitle the creditor to receive the amount of his debt, as well as the legacy, (o) When a particular motive is assigned for making the gift Particular of the legacy, there will be no presumed satisfaction of the "^° '^'^" debt, e.g. where a legacy was given to a servant " for her long and faithful services." (p) So also there will be no satisfaction if the debtor's will Direction to contains an express direction for payment of debts, or of ^^^ '' debts and legacies ; (q) for there would, in such case, prima facie, be no satisfaction even of a covenant for payment of a debt in the nature of a portion for a child, (r) So also if the payment of the legacy be dependent on a Legacy less contingency ; (s) or if the legacj'' be of uncertain amount, as ^J'^^ 'igeous, in the case of a residuary bequest ; (ss) or if the time of pay- ment of the legacy be less advantageous to the creditor and legatee, there will be no satisfaction. In an old case men- tioned by Sir Thomas Clarke, M.R., (t) an old lady indebted to a servant for wages bequeathed to the servant ten times as much as she owed her, or was likely to owe; yet because it was made payable in a month after the lady's death, so that the ser- vant might not outlive the month, although the probability was the other way, the Court held that there was no satisfaction. (n) 1 P. W. 408. (o) Be Fletcher, 38 Ch. D. 376. (p) Chancey's Case, supra. See also Charlton v. West, 30 B. 127. , (q) Horlock v. Wiggins, 39 Ch. Div., 142 ; Be Huish, 43 Ch. D. 260. (r) See supra. (s) TaJbot V. D. of Shrewsbury, Prec. Ch. 394. (ss) Tliynne v. E. of Glengall, 2 H. L. C. 154 ; Lord Chichester v. Coventry, L. K., 2 H. L. 85. (0 Mathews v. M., 2 Ves. Sen., 636. L 2 148 SATISFACTION OF DEBTS BY LEGACIES. He Dowse. So also in Be Dowse, (u) a testator who had, for valuable consideration, given a bond to secure the payment of an annuity of £10 to H. D., " so long as she should continue the widow of J. D.," by equal half-yearly payments on the 16th of June and the 16th of December, stibsequently bequeathed to her " an annuity of- £30, if she should so long continue a widow." It was held by Hall, V.C., that the circumstance that the annuity bequeathed would not, according to the ordinary rule of law, become payable until a year after the testator's death, while that secured by the bond was payable half-yearly, was sufficient to rebut the presumption that the one was intended by the testator to be in satisfaction for the other. So also, it has recently been held by Stirling, J., (v) that a legacy of £400, as to which no time for payment was fixed by the testator, was not intended to be a satisfaction of a debt of £300, payable to the legatee by the testator within three months after his decease. Legacy by Where a trustee who held two sums of money in trust for tenanTfoi- life ^^^ *^^ sisters, for their respective lives, and afterwards for their children, bequeathed sums of like amount to the sisters absolutely, it was held by Hall, V.C., that there was no satis- faction, but that the sisters were entitled to the legacies in addition to their life interests, (w) Deed co- Tlie fact that a debt is created by a deed which is practi- with*will!°"^ cally cotemporaneous with a will bequeathing a legacy of the same or larger amount than the debt (so that both are present to the mind of the donor, when he executes each of them), affords cogent reason against holding a gift in one to be a satisfaction of an obligation under the other, (a) Parol Parol evidence is admissible to rebut the presumption of evidence. satisfaction of a debt by a legacy, in like manner as in the other cases of satisfaction treated of in this Chapter, (y) Section VII. — Bepetition of Legacies. The subject of the repetition of legacies is somewhat analogous to that of satisfaction ; and the two subjects are (m) 50 L. J. Ch. 285. (v) Be Horlock, 1 Ch. (95) 51G. (w) Fairer v. Fark, 3 Ch. D., 309. (a;) Horlock v. Wig(jins, 39 Ch. Div. 142. (y) Re Borlock, I Ch. (95) 523. REPETITION OF LEGACIES. 149 treated of together iu most works on Equity Jurispru- dence, (z) The general rules in relation to the former are General Rules. (1) When a legacy of the same amount is bequeathed to the same person twice by the same instrument, and totidem verbis, or only with small differences, the one gift will be deemed to be a mere repetition of the other ; and the legatee will bo entitled not to both, but to one of them only. (2) When legacies of different amounts are bequeathed to the same person by the same instrument, they will be deemed to be cumulative; and the legatee will be entitled to both. (3) When legacies are bequeathed to the same person simpliciter, by different instruments, they will, prima facie, be cumulative ; and the legatee will be entitled to both, whether one be equal to, or greater or less than the other ; but the case is otherwise as to a specific legacy, e.g. a particular ring, or horse, or chattel, which can only be given once ; and when the gift of a sum of money or stock is of the same amount in both instruments, and the testator connects an express motive with the gift, e.g. that it is made to a servant for his or her long and faithful services, and the motive is the same in both instruments, the gift will bo deemed to have been merely repeated, and the legatee will be entitled to one only, (a) The legatee will, however, be entitled to both sums, if the motive be different in the second instrument, even if the sum be the same as in the first ; or if a motive be expressed in one of the instruments only (h), or if the motive be the same in both instruments, while the sums are different, (c) The above rules are applicable when no internal evidence Internal is furnished by the instruments themselves ; and they apply e^'^ll^nce ; also to annuities ; (^d) but the Court is bound in forming its judgment, and in order to ascertain the intention of the testator, to consider the whole contents and context of the instrument or instruments in question, (e) Accordingly where one instrument is a mere duplicate of the other, the (z) Upon the question whether an appointment is intended to be When appoint- cumulative or substitutional, see Encjland v. Lavers, 3 Eq. G3. ment cumu- (a) Wilson v. 0' Leary, 12 Eq. 531; 7 Ch. 448; Greenwood v. G., 1 lative or Bro. C. C. 31 n. ; Kirhpatrick v. Bedford, 4 App. 96. substitutional. (6) Roch V. Callen, G Ha. 531. (c) Hurst V. Beach, 5 Madd. 359 ; Itoch v. C husband is the survivor, and where the result would be that he, on taking out letters of administration to the wife's estate, would be entitled to have the property transferred to himself absolutely. It was held by Chitty, J., in Be Currey, (g) that such a Covenant not covenant does not bind property, whether real or personal, I*'"'''"? where given to the separate use of a married woman absolutely with restraint on a restriction on anticipation ; because the restraint is equi- anticipation, valent to a restraint on alienation. But his Lordship in this case sanctioned an agreement for an exchange by way of compromise and made a declaration under s. 39 (h) of the Conveyancing Act, 1881, binding her interest in the property with a view to carrying the compromise into effect. (e) Re CogJilan, 3 Ch. (94) 76. (/) Fisher v. Sliirley, 43 Ch. D. 290. Upon the question whether after- Covenant by acquired property will be bound, if the covenant be by the husband alone, husband only, see Re Haden, 2 Ch. (98) 220 ; whether the scttleinent of property to o ^x^^i ^ . which a person is entitled in default of appointment, will be defeated l^y i f . * i i a subsequent appointment in favour of such person absolutely, Lovett v. ' '• . ^. L., 1 Ch. (98) 82. appointment. (<7) 32 Ch. D. 3(J1. (/i) See infra, Chapter IX. M 2 ( 164 ) CHAPTER VIII. Chancery- jurisdiction. Executor, etc., a constructive trustee. Origin of jurisdiction. Divisions ot subject. Difference be- tween office of executor, etc., and trustee. ADMINISTRATION. Section I. — Origin of Jurisdiction. — Difference between office of Personal Representative and Trustee. The administration of the estates of deceased persons was a very old and important part of the exclusive jurisdiction of the Court of Chancery. It has been said by some writers, that the jurisdiction on this head was founded on the principle that it was the duty of the Court to enforce the execution of a trust. This appears to be true only to a limited extent ; for so far as an executor or administrator is a trustee for his testator's or intestate's creditors, legatees or next-of-kin, he is only a constructive trustee, (k) The functions of the Court of Chancery in relation to ad- ministration chiefly owed their origin to the fact that the Court had, from early times, very superior machinery for the taking and vouching of accounts and compelling discovery ; 80 that it could say, — as it practically did to the represen- tative of a deceased person, on making an administration decree — " show, and prove by your oath, what estate belonging to the deceased you have or ought to have received, how you have applied it? and what balance remains due from you in respect thereof?" The subject may properly be divided under three heads, namely, first the ascertaining and realising of the property applicable for administration ; secondly, the payment and satisfaction of the debts and liabilities of the deceased, and thirdly, the distribution of tbe surplus property or assets, if any (after payment and satisfaction of those debts and liabilities) among the persons beneficially entitled thereto. The office of an executor or administrator should be dis- tinguished from that of a trustee. Where trusts are declared (k) Re Davis, 3 Ch. (Dl) 124. ADMINISTRATION. 165 by a will, it is usually found convenient to appoint as trustees the same persons as are appointed executors ; and hence the distinction is sometimes lost sight of. When the same persons Same person are appointed to both offices, then when the office of executor ^^^g^gg" ends, that of trustee begins. (J) It was an old rule of Equity st_^t„tgg „f that time did not run against a claim by a cestui que trust Limitation ; — against his trustee in respect of property held by him on an express trust. express trust, and that such a claim was not barred by any of the Statutes of Limitation, (m) the Court holding that the Possession of ., . trustee equiva- possession of the trust property by the trustee was equiva- ignt to that of lent to that of the cestui que trust, (n) This is still the general cestui que trust. rule ; but it has been somewhat modified by a recent Statute, (o) Where, under the Statute of Limitations of 1834, a suit was instituted after twenty years to enforce pay- ment to persons entitled in remainder to a legacy bequeathed to an executor in trust for persons in succession ; and the legacy had been aj)propriated and severed from the rest of the estate, it was held that the Statute was no defence to the suit. (^) With regard to real estate, an important alteration in the Land Transfer law should be here noticed. By the Land Transfer Act, ^'^^*',^^?^'~ , ..iirt»i 1 devolution or 1897 (c. 65), s. 1, subs. 1, it as enacted to the effect that real i-gai estate, estate, except in the case of a joint tenancy, is, notwith- standing any testamentary disposition, to devolve to and become vested in the personal representatives or representa- tive from time to time of the deceased owner, as if it were a chattel real. The section only applies to cases of death after the commencement of the Act, namely the 1st January, 1898 ; but it contains an exception noticed at a former page, {pa) as to land of copyhold or customary tenure. By subs. 3, probate and letters of administration may be granted in respect of real estate only ; and by s. 2, subs. 4, the heir, Heir entitled if not one of the next of kin, is to be equally entitled to a ^•'q^'^ ""'"'^ ^*" (I) Be Willey, W. N. (90) 1 ; Be Smith, 42 Ch. D. 302 ; Be Chapman, 2 Oh. (96) 773, C. A. (m) Judicature Act, 1873, c. 66, s. 25 (2); 3 & 4 Will. 4, c. 27, s. 25 ; Thomson v. Eastwood, 2 App. 215 ; Patrick v. Simpso7i, 24 Q- B. D. 128; Mutlow V. Bigg, 18 Eq. 246, 1 Ch. Div. 385 ; Boche/oucauld v. Boustead, 1 Ch. (97) 208, C. A. (n) Barker v. Furlong, 2 Ch. (91) 179. (o) The Trustee Act, 1888 (c. 59), s. 8. See supra, p. 80. {p) PhilUpo V. Munnings, 2 My. & Cr. 309. !See now the Trustee Act, 1888 (c. 59), s. 8 : Be Swain, 3 Ch. (91) 233 ; Be Davis, ib. 119; He Bowe, 58 L. J. Ch. 703, supra, pp. 80-83. (pa) P. 38. 166 ADMINISTRA TION. Liability to debts. grant of administnition with the next of kin, (^&) and there are also certain other important provisions as to which the reader is referred to the text of the Act. The Act does not affect the beneficial ownership of real estate ; but the personal representatives are to hold the same as trustees for the per- sons by law beneficially entitled thereto, i.e. for the heir, or co-heirs, devisee, or devisees of the deceased owner ; and by s. 2, subs. 3, the liability of real estate in or towards payment of debts is preserved on the like footing as before the passing of the Act (stated in a subsecLuent part of this Chapter). Order of pay- ment of debts, etc. Legal and equitable assets ; — general defini- tion. Freehold es- tates. Statute of Frauds, s. 10 ; —Trust es- tates. Section II. — Payment of Debts and Liabilities. — Distinction between legal and equitable Assets. It might naturally be supj)Osed that the question how ? or out of what estate ? or in what order the debts and liabilities of a deceased person should be paid and satisfied admitted of a somewhat simple answer ; but unfortunately, the answer embraces a number of highly technical rules, and of very refined distinctions, not based on the justice of the case, but such as can only be accounted for on grounds connected with the history of our legal system. The assets of deceased persons are divided into two classes, namely, legal assets and equitable assets. Legal assets are those which, prior to the passing of the Judicature Acts, were liable in a court of Common Law, for the purpose of satisfying the claims of creditors ; while equitable assets are those which could only be made available for such purpose through the medium of a Court of Equity. At Common Law freehold estates which had descended to the heir, and by the Statute of Frauds (29 Car. 2, c. 3, s. 10) freehold estates held in trust, and which had descended to the heir of the cestui que trust, were legal assets in the hands of the heir, but in both cases only so far as related to debts for which judgment had been obtained against the ancestor in his lifetime, and specialty debts created by deeds in which the heirs were expressly bound. (5) (ph) Re Barnett, P. (98) 145; Ee Ardern, ib. 147 ; Re Roberts, tb. 149. (q) In a bond the heirs were bound by sucii words as " for which pay- ment I bind myself, my heirs, executors, and administrators by these presents " ; and in the case of a covenant by the words, " And the said [covenantor] doth hereby, for himself, his heirs, etc., covenant." See the Conveyancing Act, 1881 (c. 41), ss. 58, 59. ADMINISTRATION. 167 As to personal estate, legal assets were those which came to Personal es- the hands of an executor or administrator, or could be reached asset's-— Kfefini- or made available by him by virtue of his office. Having tion. regard to this definition, the general personal estate, including leaseholds, would be legal assets ; and so also would the equity of redemption in leasehold estate; for if, before the Kqviity of re- JudicMture Acts, an action had been commenced at Law ij!.jseholds. against the executor or administrator, to recover a debt due from the deceased, and it had been proved at the trial that the defendant had sold the equity of redemption for, say, £500, and received the sale money — the debt being admitted, the defendant would be liable to the extent of £500 as for a legal asset ; because that amount came to him in his character of executor ; but the case would be otherwise if the asset in question had been the sale money of a freehold or copyhold estate devised to an executor in trust for the payment of debts. A Court of Law would not, before the Judicature Acts, have taken account of the proceeds of such a sale, because the money would not have come to the hands of the defendant as executor, but in his character of trustee — devisee in trust ; and the like principle applied to land devised charged with the payment of debts. The distinction between the two classes of assets has regard, not to the question whether the interest of the deceased was legal or equitable, nor to the mode in which the representatives of the deceased could have realised the assets ; but to the mode, whether legal or equit- able, by which the creditor conld formerly have made them available for the payment of his debt. The distinction remains up to the present time, though Law and Equity are now administered concurrently in all the Courts. The heir was always liable to the judgment debts and the specialty debts above mentioned; but formerly a landowner might have defeated even this favoured class of creditors by making a devise of the estate to some person other than his heir. To put a stop to this mischief, the Statute of Statute of Fraudulent Devises of 3 & 4 W. & M. c. 14 was passed which Dgyho" 3 & 4 made devises of freehold estate fraudulent and void as W. & M. c. 14. against specialty creditors ; but subject to a proviso, except- ing from its operation devises for the payment of debts. This Statute was repealed by 11 Geo. 4 & 1 Will. 4, c. 47, which H Geo. 4 & 1 re-enacted and extended its provisions. By ss. 6 ife 8 of that ' ' ' Act, the heir and devisee respectively who shall have sold the 168 ADMINISTIiATION. lands of the deceased arc made liable to pay the debts and per- form the covenants of the deceased to the extent of the value of the lands sold. These sections are still in force; but they now apply to simple contract as well as to specialty debts. Freehol.ls ;— By a strange defect in our law, up till the early part of tract debts". *^^^ present century, if a person died without leaving any personal estate, or making any provision for the payment of his debts, but leaving real estate of ever so large value, his simple contract creditors would have been left entirely without the means of having their just claims Copyholds. satisfied, and copyhold estates were not in such case liable to debts either by simple contract or specialty. The Statute, 11 Geo. 4 and 1 Will. 4, c. 47, provided a partial remedy for 3 & 4 Will. this injustice ; but by 3 & 4 Will. 4, c. 104, commonly called 4, c. 104. Lord Eomilly's Act, it was enacted that " when any person shall die, seised of or entitled to any estate or interest in lands, tenements, or hereditaments, corporeal or incorporeal, or other real estate, whether freehold, customary hold, or copyhold, which he shall not by his last will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered in Courts of Equity for the payment of the just debts of such person, as well debts due on simple contract as on specialty ; " and it was thereby also provided to the effect that the heir or customary heir or devisee of the debtor should be liable to the same suits in Equity by creditors, whether by simple contract, or by specialty, as, before the Act, might as to freehold estate have been maintained by creditors by specialty, in which the heirs were bound ; but the Act contained a proviso giving Preference of preference to creditors of the latter class. This preference abolished b^^*' ^^^ abolished by the Statute, 32 & 33 Vict. c. 46, passed in 32 & 33 Vict. 1869, and commonly called after its author, Mr. Hinde ^- **^- Palmer, whereby it was enacted that " in the administration of the estate of every person who shall die on or after the first 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 under 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 standing in equal degree, and be paid accord- ingly out of the assets of such deceased person, whether ADMINISTRATION. IGO such assets are legal or equitable, any statute or other law to the contrary notwithstanding." The Act contains a Act not to proviso that it " shall net prejudice or affect any lien, r'"ej"'''t« charge, or other security which any creditor may hold or be entitled to for the payment of his debt." Lands charged with or devised subiect to the payment Equity of re- in 1 • c -y K (ii'mption in of debts were excepted from the operation oi the Act freeholds, etc. 3 & 4 Will. 4, c. 104, because they were already equitable assets —money for the payment of debts. Upon the construction of the same lajijf^ statute, it has been held that the equity of redemption whether in freehold or copyhold land, (r) as well as a sum of money charged on land, (s) is to be administered as legal assets. The Statute of 1869 is not so clearly expressed as it might have been. From the wording one might be inclined to suppose that the classification into specialty and simple contract creditors is exhaustive ; and that the effect would be to place all debts on an equal footing. This is not so ; but the only effect is to take away the preference which a debt formerly had meiely by reason of its being a specialty debt ; and therefore a specialty debt due to the Crown not Specialty debt •L • • 1 1 1 • -n ■ ^ 1 • ^ due to Crown. being a mere specialty debt, is still entitled, in the case ot legal assets, to the same priority as it was before the Surety who ® . ' r J 1 ^ has paid Crown passing of the Act ; and a surety to the Crown who debt. has paid the debt of his deceased principal is entitled to the like priority. (<) In favour of a creditor who has obtained and registered a judgment against the deceased, or of a creditor by specialty in which the heirs are bound, lands not charged with or deviled subject to the pay- ment of debts are now in the nature of legal assets ; but so far as relates to simple contract creditors, they are equitable assets, (it) Subject to these observations, and to the right of retainer mentioned below, the effect of the Statute of 1869 is to put specialty and simple contract debts upon the same footing — leaving other rights of priority as they were at the time of the passing of the Act. Accord- ^-'is obtaiiTed'' ingly it was held, before the Judicature Acts came into judgment operation, that the Act of 1869 did not deprive a creditor of '"^S'"*'"^*; *^^'^'^"" (r) Be Burrell, 9 Eq. 443. (s) Cook V. Gregson, 3 Dr. 547. (0 Re Churchill, 39 Ch. D. 174 ; Re Bentinck, 1 Ch. (97) 673 ; see also Be Jones, 31 Ch. D. 440. (m) Re Illidge, 27 Cb. Div. 482. 170 ADMINTSTRA TION. Registration ill such case unnecessary. Case otherwise a^ to judg- ments against deceased. Heir, etc., may sell. Liability for sale, money, etc. ; for rents, etc. Account in creditor's action. Funeral and testamentary exjienses. Older of j)riority of debts in case of legal assets. Writs, etc., aHecting land ; — Land Charges Regis- tration Act, 1888. Lis pendens ; — real estate. Testamentary e.xjienses ; — costs of action. the priority wliich he had acquired in the case of legal assets by his diligence in obtaining judgment at law for his debt against the personal representative of the deceaS' d before judgment for administration of an insolvent estate, (f) The effect of this decision is not altered by the Judicature Acts ; (w) and it is not necessary that such judgment should be registered ; (.^) but the case is otherwise as to a judgment obtained agaiust the deceased in his lifetime. (//) The Statutes of 11 Geo. 4 and 1 Will. 4, c. 47, and 3 & 4 Will. 4, c. 104, do not create a lien on lands ; and therefore if an heir or devisee make a bond fide sale of the real estate of his ancestor or testator, the sale is good, and the purchaser will acquire a good title to the land sold; but the heir or devisee will be personally liable for the debts of the deceased to the extent of the value of the land sold, as if they were his own debts, and in the same way as the land, would have been if it had remained unsold. The like principle applies to a mortgage (whether legal or equitable) eifected by the heir or devisee, (z) Moreover, the heir or devisee, whether in trust or for his own benefit, is liable, at the suit of creditors, to account for the rents of real estate received by him. (a) But in a creditor's action, it is not usual to direct an account of rents and profits in the first instance ; as the personal estate, with the corpus of the real estate, may be sufficient for the payment of the debts and costs, (h) In the administration of both legal and equitable assets, first the funeral expenses, and next the testamentary ex- penses, including the costs of an action for administration, if ordered to be paid, (c) are in all cases entitled to priority. Next after these come, in the case of the estate (v) Be Williams, 15 Eq. 270; see also Re Stuhhs, 8 Ch. D. 155; Be Benlincl', supra. {w) See Act of 1875 (c. 77), s. 10, infra. Bankruptcy Act, 1883 (c. 52), 8. 40, 51 efc 52 Vict. c. 62, s.\; Re Maggi, 20 Cb. D. 545. (x) Be WiUiums, supra. iy) Van Gheluive v. Nerinchx, 21 Ch. D. 189, 2.3 & 24 Vict. c. 38, ss. 3 & 4. As to the registration of writs and orders aifectiug land, see the Land Charges Eegistiation Act, 1888 (c. 51) (2) Be Iledgehj, 34 Ch. D. 384; British, etc., Co. v. Smart, 10 Ch. 5G7; Coope V. Cres'ii-ell, 2 Ch. 112. As to the effect as against a purchaser or mortgagee of registering as a lis pendens an action for general adminis- tration of real and personal estate, see Frice v. P., 35 Ch. D. 297. (a) Be llyaft, 38 Ch. D. G21. (?>) Stratford v. Bitson, 10 B. 25. (c) The costs of an administration action arc part of the testamentary expenses: Sharp v. Lush, 10 Cb. D. 4G9; Fenny v. P., 11 ib. 4i0; and ADMINISTRATION. 171 of a person dying insolvent after the end of the year 1888 (under the Preferential Payments in Bankruptcy Act, 1888 Preferential (c. 62), ss. 1, 3, 5), parochial and local rates, and salaries I'''>vments in and wages of clerks, servants, and workmen ; (cc) but subject ^^.^ i888. to the restrictions mentioned in s. 1. Subject to these, and so far as relates to legal assets, creditors are entitled to the same piiurity to which they would have been entitled at Law before the passing of the Judicature Acts, (rf) i.e. their debts will be payable in the following order. 1. Debts of record or by specialty due to the Crown, (e) 2. Debts to which preference is given by various statutes, e.g., moneys due from an overseer for poor rates collected by him (17 Geo. 2, c. 38, s. 3) ; (/) moneys due from an officer of a friendly society (59 & 60 Vict. c. 25, s. 35, {g) money due from an officer of a Savings Bank (/t) Eegimental Debts (56 Vict. c. 5, s. 2). 3. Judgments against the deceased in his lifetime rateably ; but they must have been registered, (i) 4. Judgments obtained against the executor or adminis- trator according to priority of date, (j ) 5. Recognizances. 6. Unregistered judgments obtained against the deceased they are now in the discretion of the Court : Brown v. Burdett, 40 Ch. Div. 244. A husband executor of his wife's will made under a testamentary power Wife's funeral of appointment, is entitled to retain out of her estate the expenses of her expenses, funeral, thoufrh such estate is insufficient for creditors, and though her will does not contain any charge of debts or funeral expenses : Be ifPMyn, 33 Ch. D. 57.5. As to the plaintitTs costs of an unsuccessful action im- peaching a will, see Ee Prince, 2 Ch. (98) 22.5. (cc) Be Heywood, 2 Ch. (97) 593. The amending Act of 1897 (c. 19), Preferentinl refers only to juiut stock companies in the course of being wound up. See Payments (before this Act) Bichards v. Overseers of Kidderminster, 2 Ch. (96) 212. Act, 1897, (rf) Be Baker, 44 Ch. Div. 270. (e) See Be Churchill, 39 Ch. D. 174; Be BentincJc, 1 Ch. (97) 673. (f) Ee Booth, W. N. (79) 108. (g) Be W. of England, etc., Bank, 11 Ch. D. 768 ; Be Miller, 1 Q. B. (93) 327, C. A. (ft) Savings Bank Act, 1863, c. 87, s. 14 ; Be Williams, 36 Oh. D. 573 ; but see the Savings Bank Act, 1891, s. 13. (z) Supra. A balance order under the Companies Act, 1862, is not a Balance order judgment; nor is an order giving liberty to sign final judgment equiva- under 50 & 57 lent to an actual judgment ; Ee Gurney, 2 Ch. (96) 863; but see 56 & 57 Vict. c. 58. Vict. c. 58 as to orders for payment of money under s. 10 of the Com- panies Act, 1890 (c. 63); also Westmoreland, etc., Co. v. Feilden, 3 Ch. (91) C. A. 15. ij) Such judgments woidd, of course, only have priority so far as relates to the general personal estate. 172 ADMINISTRATION. in his lifetime, specialty debts founded on valuable consideration, and simple contract debts, as well as (in the case of a deceased incumbent) claims for dilapidations under the Ecclesiastical Dilapidations Act, 1871, (Jc) all rateably. 7. Voluntary bonds and moneys due under voluntary covenants. Section III. — Equitable Assets. Trust for Payment of Debts. ^, ,, In the distribution of equitable assets, the Court acts on pari passu out the maxim that " Equality is Equity," so that after the of equitable payment of the funeral and testamentary expenses, including C(»sts (jf an administration action, if any such are ordered to be paid out of the estate, and subject to the priority given by the Preferential Payments in Bankruptcy Act, 1888 above referred to, all the creditors will be entitled to have such assets applied pari passu towards the satisfaction of their debts. Divisions of Equitable assets are of two kinds ; first, those which are equitable created by the act of a testator by devising his lands for or Hssets. charging them with the payment of his debts, and secondly, those which, irrespective of the will of the testator, are such by reason of the nature of the property itself. As to the Separate es- second division the separate estate of a married woman tate of^ constituted equitable assets even before the passing of the Married Women's Property Acts, and it does so still. This is so both in the case of separate property under the Act of 1882, and that which was separate property previously Property ap- thereto. (/) So also property appointed under a general pointed under p^^er must be administered as equitable assets, (m) genera powei. y^^^^ reference to the first and far more usual kind of equitable assets, the question seldom arises whether, by the terms of a will, real estate has or has not been devised by a testator in trust for payment of his debts ; (m) but where Statutes of there is such a trust, the old Statutes of Limitation will Limitation ; — trust for pay- (/c) Ee Monh 35 Ch. D. 583. ment of debts. (f) He Foole, 6 Cli. D. 739. (m) Pardo v. Bingham, 6 Eq. 487, 4 Ch. 738. A charge of debts on personal estate is a mere nullity. Im lied trust (") ^^'^ Williams v Jenkins, 1 Ch. (93)700, where it was held that there impiie . ^^^ ^^ implied trust for payment of debts aud claims ; and compare Trevor V. Eutchins, 76 L. T. 636, C. A. married woman ADMINISTRATION. 173 afford no defence to an action or claim by a creditor, though the Trustee Act, 1888, may. The rule is otherwise so far as relates to a mere charge of debts, (o) Section IV. — Charge of Debts. A very slight indication of intention on a testator's part is How charge suflScient to create a charge of debts. This arose from the '^'■'^''*^'^'^- anxiety of the Court of Chancery to avoid the hardship and injustice of the rules of Common Law above mentioned; or as was said by Sir John Strange, M.E., in the year 1751 " that men should not sin in their graves " ; and accordingly where a will began with snch words as " I direct my just Diiectinn that debts to be paid," it was held that the testator's real estate '^^^^^ ^^ P^'^'- was charged and that the Court had power to sell, even though that estate had been devised for the devisee's own benefit, (p) The like principle applies to the engagements Real estate, of a married woman who has appointed real estate under a f**^"' ^PP"'nted ^J- by marncil testamentary power. (5) Moreover even if a will did not woman. deal with real estate at all, but that estate was left to descend to the testator's heir at law, the direction would have the like eflFect, and make the real estate equitable assets in the hands of the heir, (rj There were, however, two Exception exceptions to the rule just stated. First, where the debts ^ygj!^!.^ j^^^ ^ j 1 were directed to be paid hy the executors. In this case the by executors. debts were only presumed to be payable by the executors out of the estate which came to their hands as executors — i.e. (0) As to the eifect of the Statute of Limitations in such case, see Re Effect of Stephens, 43 Ch. D. 39 ; Fordham v. Wallis, 10 Ha. 217 ; Trevor v. Statute of Hutchins, supra. _ Limitations iu From what has already been said it will appear that even now the case of charge question whether a particular creditor shall be paid or not may depend on of debts, the will of the debtor. Thus, if a person die indebted to A. in £1000, for wiiich judsment has been recovered and registered against him, and to B. in the like siun ot £1000, by simple contract, and leaving no personal estate, but only real estate worth £1000, then, if the deceased has made no provision as to his debts, A. will be entitled to the entire estate, leaving B. wholly unpaid ; while if the estate has been devised upon trust for or charged with the payment of debts, the proceeds of sale of the estate will be divided equally isetween A. and B. Such, however, is the law; and such it must continue until Parliament shall legislate to the contrary : Thomas v. Britndl, 2 Ves. Sen. 314. (p) Shallcross v. Findtn, 3 Ves. 739; Corser v. Cartivright, 8 Ch. 975, L. R. 7 H. L. 735 ; Re Bate, 43 Ch. D. 601 ; Re Head, 45 Ch. Div. 310 ; ReSankey,W. N (89)79. (7) Re De Biiryh Lawson, 41 Ch. D. 5G8 ; Re Barber, 31 Ch. D. GG9. (r) Shallcross v. Finden, supra. 174 ABMINISTBA TION. Real estate given to execu- tors ' fer one creditor prefer one creditor to another of equal degree : and as he to another ; cannot sue himself, he has also the right to retain his own and to retain debt in prefereuce to paying other creditors of equal degree ^'^ "^^^ '^^^** with himself ; (q) even though his debt is barred hy the (k) Re Tanqueray- Willaume, 20 Cli. Div. 480 ; Carlyon v. Truscott, 20 Eq. 34:8. (0 Re Whistler, 35 Ch. D. 561 ; Re Venn, 2 Ch. (94) 101. (in) Re Whistler, supra. (n) Re Taiiqutray- Willaume, supra ; Corser v. Cartwright, L. R. 7 Constructive H. L. 731. As to constructive notice generally, see supra, pp. 73-7(j. notice. (o) Metcalfe v. Hutchinson, 1 Ch. D. 591. O) Re Green, 40 Cli. D. 610 ; Re U Herminier , 1 Ch. (94) 675 (power of yppointment). iq) Vihurt v. Coles, 24 Q. B. Div. 364 ; Re Jones, 31 Ch. D. 440 ; Wilson V. Coxwell, 23 Ch. D. 764 ; Re Compton^ 30 Ch. Div. 15; Waller* N 2 180 ADMINISTRA TJON. Widow ad- niinistratrix ; — insolvent •state. Specialty debt due to execu- t or and others. Retainer with- out notice of superior debt. Right to indemnitj". Debts due to executor, etc., in trust. Statute of Limitations ; (qq) and npon this principle a widow administratrix of her husband wliose esstate was being administered by the Court and was insolvent, was held to be entitled, notwithstanding s. 3 of the Man-ied Women's Property Act, 1882, (c. 75) and s. 10 of the Judica- ture Act, 1875 (c. 77) to retain, out of assets come to her hands as administratrix, the amount of a loan to him in his business out of her separate estate, (r) So also even one of several executors is entitled as against a specialty creditor, or a company or a liquidator claiming calls in a winding-np to retain in respect of a specialty debt due from his testator to a body of trustees of whom such executor is one ; («) and the right extends to so much of the assets of the testator as comes into the possession or under the control of the executor, or is paid into Court during his lifetime, (i) When an executor, upon the distribution of an estate, retains the amount of a debt due to himself, bond fide, and without notice of the existence of a debt due to a creditor of higher degree, which afterwards appears to remain unpaid, the amount so retained will not be deemed to be assets remaining in his hands, or capable of being followed by such creditor, (tt) It has recently been held by Kekewich, J., that the right to indemnity of an executor who is surety for an unpaid debt of his testator, creates an equitable debt in respect of which he may exercise the right of retainer, (u) It has also recently been decided by Wright, J., that when the debt due to the executor of an insolvent estate exceeds the amount or value of the estate, the executor is not bound to realise, but may retain the estate in specie, in satisfaction of his debt, (^m) An executor or administrator has a right to retain not only for debts which he claims beneficially, but also for those Heir, &c ; — specialty debt. V. W., 18 Ch. D. 182 ; Be Birt, 22 Ch. D. 604; Be Qimphell, 16 ib. 198 ; Laver v. Botham, 1 Q. B. (.95) 59; Be Allen, 2 Ch. (96) 345; Be Beutinck, 1 Ch. (97) 676. (qq) Trevor v. Eutchins, 1 Ch. (96) 844, C. A. (r) Be May, 45 Cli. D. 499. (8) Be Eubbaek, 29 Oh. Div. 934. (t) Be Compton, 30 Ch. Div. 15; Be Beeman, 1 Ch. (96) 48. («) Be Fiudyer, W. N, (98) 81 (7). (m) Be Gileti, 1 Ch. (96) 956. As to the right of retainer of an heir or devisee in respect of a specialty debt, see Be Illidge, 27 Ch. Div. 478. (mm) Be G-ilbert, 1 Q. B. (98) 282. ADMINIS TEA TION. 181 to which he is entitled as trustee ; and it has been held by Malins, V.C., that he is bound to exercise that right when requested so to do by his cestui que trust, (v) A judgment or decretal order for the administration of the AilmmistratioD estate of a deceased person will at once take away from the takes away executor or administrator the right of preference which he rii^ht of pre- has in relation to creditors other than himself; (i») but not '^'"*'^®' his right to retain his own debt; nor will this right iii of leuinen general be affected by the fact of the funds liable thereto having been paid into Court, (x) nor will his right to prefer ^''°*''' °^ , o I . o I accounts, etc., one creditor to another be att'ected by an order for accounts under O. 15, and enquiries under 0. 15, r. !.(«/) Mr. Hinde Palmer's Act ^- ^• will not be so construed as to give incidentally to an executor Effect of 32 & the power to defeat specialty as well as simple contract ^^^ j. I Jj^^ ^^j.^.^' creditors ; although the Act, by augmenting the fund for tainer. the payment of simple contract debts, has, to that extent, enlarged the executor's right of retainer, (z) If a receiver be Apiiomtment of r6CGiv6r appointed, the assets will be intercepted before they come to takes away the hands of the personal representative ; and to that extent riglit. the appointment will prevent him from exercising his right of retainer ; (a) but it is no business of the Court either to defeat or to assist the right of retainer ; (aa) and it will not Appointment appoint a receiver for the mere purpose of preventing an nierely to in- honest executor or administrator from exercising that right, tercept right or before judgment, to prefer one creditor to another. (&) etc!"^^ erence, When the assets are partly legal and partly equitable, Equitable the executor or administrator has no right to retain the assets. whole of his debt out of equitable assets, if they are not sufficient to pay the other debts in full, but only a pro- portionate part pari passu with the other creditors ; and if by Terms on exercise of his privilege, he gets paid part of his debt out ^^j. ^j.^. ^ of the legal assets, he will not be allowed to resort to the resort to. equitable assets for payment of the remainder, until the other creditors shall have received thereout as large a pro- (v) Sander v. Heathfi.Id, 19 Eq. 21 ; see also Be Wells, 45 Cli. D. 571. (lo) Re Welh, 45 Cli. D. 575. (x) Richmond v. White. 12 Ch. Div. 3G1. ly) Re Barrett, 43 Ch. D. 70. (2) Re Jones, 31 Ch. D. 440 ; Wilson v. Coxwell, 23 Ch. D. 7G4 ; Re Bentinck, 1 Ch. (97) 676. (a) Re Jones, 31 Ch. D. 440; Re Harrison, 32 Ch. D. 397; Re Birt, 22 Ch. D. 604. iaa) Trevor v. Hutchins, 1 Ch. (96) 852, C. A. (6) Re WelU, 45 Ch. D. 575. 182 ADMINISTRA TION. No right to re- tain, etc., when creditor is ad- ministrator. portion of their respective debts as he himself has received in respect of his debt, (c) So also any other creditor who has a preference in the case of legal assets, and who has exhausted those assets in obtaining part payment of his debt, will not be entitled to resort to the equitable assets until all the other creditors shall have received thereout a like proportion with himself of their respective debts, (d) An exception to the rules above stated as to the right of retainer and of preference arises when administration is granted to a creditor. The Prol)ate Division will not now make such a grant except upon the terms of the creditor entering into a bond with a condition to pay all the debts ■pro rata, his own included, (e) Discretion of esecators. Direction in will as to debts. Section VI. — Order of Application of Assets for Payment of Debts. Though debts are payable pan|?rtssM out of equitable assets, it does not, of course, follow that all equitable assets stand on the same footing. If one estate were devised in trust to sell for the payment of debts, and another to A. for his own benefit, but charged with debts, then, though both estates are equitable assets, it is only reasonable that the proceeds of the former estate must be exhausted before the latter can be resorted to. It is proposed now to treat of the order in which the •«^anous classes of assets are applicable for payment and satisfaction of the debts and liabilities of a deceased person ; but it wiii be borne in mind that the executors or adminis- trators are not bound to apply them in this order in the first instance ; as the result ot so doing might be to delay pay- ment to the creditors for an unreasonable time. Executors or administrators will be justified, as between themselves and all persons interested in the estate, in dealing with the assets as they think best for the purposes of administra- tion. (/) The order in which the assets are so applicable in (c) Bain v. Sadler, 12 Eq. 570. id) lb. (e) Be Brackenhury, 2 P. D. 272 ; for form of bond, see Tristram and Coote's Probate Practice, Appendix 5, Form 49. (/) Bavies v. Nicohon, 2 D. & J. 693 ; Allhusen v. Whittell, 4 Eq. 302 ; Ashworfh v. Munn, 34 Ch. D. 391. As to the funds out of which debts will be deemed to have been paid ADMINISTRATION. 183 general, is also liable to be controlled by any direction to the contrary contained in the Avill of the deceased. Snch a Not binding on direction is not binding on creditors ; but if the proper order <='"^^'*'0'S' of application be not observed in the first instance, and if the estate be more than sufficient to discharge the debts and liabilities, the rights of all parties interested will be adjusted afterwards by the process of marshalling, or qaasi marshall- ing treated below. The order of application is as follows : — 1. The general personal estate not specifically bequeathed. General per- after deducting general legacies — legal assets. (^) ''""^ estate. 2. Eeal estate devised expressly in trust for the payment Real estate de- p 1 -i, -ill J. vised in trust of debts— equitable assets. to pay debts. 3. Real estate descended (Ji) — legal assets at Common Law (except in the case of copyhold and customary lands ^"^^^ estate and hereditaments) — so far as related to debts of record against the deceased, and specialty debts in which the heirs were bound — equitable assets as to simple contract creditors under 3 & 4 Will. 4, c. 104. (^■) 4. Eeal estate devised but charged with debts — equitable Real estate assets. 0*) fl'^"'^ ^'^^ , y . debts; 5. General legacies. for the purpose of adjusting the acconnts between tenant for life and Tenant for life remainderman ; see AlUmsin v. Whittle, supra ; Re Wliitehead, 1 Ch. (94) and remainder 683 ; Marshall v. Croivther, 2 Ch. D. 198 ; Lambert v. L, 16 Eq. 320 ; man. Me Harrison, 43 Ch. D. 5^. (g) Tretheicy v. Helyar, 4 Ch. D. 53 ; Blann v. Bell, 7 ib. 382. (h) See Hurst v. H., 28 Ch. D. 169, where Pearson, J., refused to charge with costs, in priority to estate specifically devised and be- queathed, a life interest which had passed to the heir under a forfeiture (^•) Re Illidge, 27 Ch. Div. 484. (j) In practically all the existing text books the class of assets fifthly or sixthly (see next note) applicable is stated to be general or pecuniary legacies. This is somewhat confusing, unless the first item be stated as the general personal estate after deducting legacies; but this point would not arise according to a recent authority — Re Bate, 43 Ch. D. 600, where it was deciiled by Kay, J., that the whole of the personal estate not specifically bequeathed and not excepting pecuniary legacies, must be applied in payment of debts before the rciil estate could be resorted to. The contrary was decided by Wood, V.-C, in 1866 in Binns v. Nichols, 2 Eq. 261, and has recently been decided in Re Salt, 2 Ch. (95) 203 ; (see, also Re Butler, 3 Ch. (94) 250 ; Tipinng v. T., 1 P. W. 730 ; Roberts v. Hanby, Amb. 127), and is implied in (among other ciises) Bugdale v. D., 14 Eq. 234 ; Tomkins v. Colthurst, 1 Ch. D. 626 ; Far- quharson v. Floyer, 3 Ch. D. 109. Otherwise the questions there decided would not have arisen , 184 A DMINISTRA Tl ON. specifically de- vised, etc. Estate ap- pointed under a power. When personal estate ex- onerated from debts, etc. No particular form of words required. Liability qf real estate charged with legacies, etc. 6. Eeal estate specifically devised, residuary real estate, and specifically bequeathed personal estate not charged with debts. These are legal assets, and are applicable rateably. (Jc) 7. Real and personal estate appointed under a general power. The property must have been actually appointed ; because the Court never aids the non-execution of a power. (I) The personal estate not specifically bequeathed, may be exonerated from its primary liability to the debts of a testator by express declaration of intention to that effect contained in his will, or by necessary implication, though no particular form of words is necessary' ; but it is not enough to show that the real estate is charged. It must also be shown that the personal estate is intended to be discharged, the onus being on the persons claiming the personal estate, (n) (ft) Jackson v. Fease, 19 Eq. 96 ; Be Price, 31 Ch. D. 485 ; Lancefield V. Igguldcn, 10 Ch. 136; Phillips v. Loiv, 1 Ch. (92) 50. If the real estate be charged with pecuniary legacies or portions, the legatees or portionists will not have to contribute in the fir^t instance towards the debts in the event of the estate proving insufficient ; but the residuary real estate must contribute rateal)ly with the specific devisees and legatees, according to its full value without diducting the amount of the pecuniary legacies or portions : Be Bmvden, 1 Ch. (94 693. According to some of the cases and text books lands comprised in a residuary devise in the case of wills within the present Wills Act of 1 Vict, c 26 are to be resorted to before estate specifically devised and bequeathed : Lancefidd v. IgguJden, supra (which was decided by Lord Cairns, L.C., and James, L.J., following on this point the judgment of Lord Chelmsford in Hensman \. Fryer, 3 C)i. 420), settled the law iu favour of all such estates, where they exist, being applicable pari passu. In fact it was held in both these cases that a residuary devise of land remains specific, notwithstanding s. 21 of the Wills Act. The Author has a very distinct recollection of James. L.J., exprei-sing himself with reference to Hensman v. Fryer, very much mure strongly than appears by the Heport, to the effect that the judges in the Court below were not at liberty to disregard the well-considen d judgments of the Court of Appeal. This, however, has been since done in the above-mentioned cases of Dugdale v. /*., Tomldns v. Colihurst and Farquharson v. Floyer, as to another jioint which was not decided in LancifiAd v. Iggulden. For though the law as Liid down in that case (recogni.sed by Chitty, J., in November 1891, in Phillips v. Low, cited above), must now be accepted as settled, it would clearly appear that Lord Chelmsford made a mistake in deciding, as he did in Hensman v. Fryer, that where the per.-^onal estate was insufhcient for the payment of debts and legacies, pecuninry legatees and the residuary devisee ought to contiibute rateably to the payment of the debts which the general personal estate was insufficient to satisfy. (0 Hi>lmes V. Cogliill, 12 Ves. 206; and see Ch. XIX., s. II. infra. As to property appointed by the will of a married woman, see the M. W. P. Act, 18H2, s. 4, and infra, Ch. IX. (n^ BaoUe v. Blundell, 1 Mer. 193 ; Kiljord v. Blaney, 31 Ch. D. 61. ADMINISTRA TION. 1 85 And the Court will not, for the purpose of arriving at tlie Relative testator's intention on this head, take into consideration, or """'""*''' \ '^•f '_ ' of roal iind direct any inquiry as to the relative amounts or values of the personal estate. real and personal estates respectively, or the amount of the testator's debts and liabilities, e.g., if real estate of large value vs^ere devised to A. charged w^ith debts, and the general personal estate were bequeathed to B. simpliciter, no weight would be given to the fact of the debts exceeding the amount and value of the personal estate, though the effect would be that, according to the rule in question, B. would take nothing under the bequest. The Court Court guided will, in such cases, be guided entirely by the expressions '^"''''^•^,,'^^ words contained in the will. Where the personal estate is bequeathed beneficially, and an express fund is provided for payment of the debts by means of the real estate, very slight indication of intention on the part of a testator, e.g., where the real estate was charged not only with the debts, but also with the funeral and testamentary expenses, (o) has been considered sufficient to induce the Court to hold that the personal estate is exonerated. But a distinction has been taken by the Court Legatee also between those cases in which the legatee of the personal estate is also the executor, and those in which he is not so. The reason is that an executor generally takes the personal estate, subject to all liabilities attaching thereto ; and there- fore the inference of exoneration is less strong when the legatee is also executor, than it would otherwise be ; and in such case, there will in general be no exoneration. It was indeed held in two cases (p) that there would be no exoneration even where the legatee was not an executor ; but it has been held in other cases both before and since, that under such circumstances, and where the personal Personalty be- estate has been bequeathed not by way of residue, but as a ^hde.^ whole, and either with or without an enumeration of particular items, the personal estate will be exonerated. (5) These authorities proceed upon the footing of an intention being discovered to give the personal estate as a specific (0) Of course there would be no exoneration by a mere direction that the funeral expenses should be paid out of the personal estate ; as such words would be mere surplusage. (p) Collis V. Robins, 1 D. G. & Sm. 131 ; Ouseley v. Anstruther, 10 B. 453. (3) GiWertson v. G., 34 B. 357. 186 ADMINISTRATION. bequest ; and the balance of authority is in their favour ; but they are not free from doubt, (r) If the personal estate has been specitically bequeathed, of course it is not, in general, first applicable for the payment of debts. In Powell y.Biley Powell v. Iiiley,(^s) a testator bequeathed all his household goods and other specified articles, and all other his personal estate, to his wife absolutely, and then devised a freehold estate called the Eye Crofts to trustees upon trust to sell and pay his debts, and to pay the surplus to his wife ; and ho devised another freehold estate to his wife absolutely ; and other estates to his wife for life, with remainders over. The Jlye Crofts estate was insufificient for payment of debts. It was held by Malins, V.-C, that the bequest of personalty to the wife was specific, and that such bequest, and the specifically devised real estates ought to contribute rateably to the payment of the surplus debts for which the Eye Crofts estate was insufficient. This decision has been questioned more than once, so far as it de(;ided that the bequest of the personal estate was specific ; and it is at least doubtful whether it would now be followed, (f) Part of person- Where a specific part of a testator's personal estate is ^h"^"d^— '^ directed to be applied for, or expressly charged with pay- ments which, as a rule, fall upon the personal estate gene- rally, such part must first be applied in exoneration of the assigned in j-q^^^ . ^nd a like principle applies, so as to charge primarily ment oTdebts with debts, personal estate assigned by a testator in his life- etc, in testa- time in trust for or charged with the payment of the debts (u) tor's lifetime. ^^^^^ gj^^ll be Owing from him at his death. If, however, diT osed of ""' ^^ *^^ former case, the residue of the testator's personal first applicable, estate be undisposed of, it will first be applicable. («;) When, Exoneration by therefore, specific personal estate is directed to be sold in implication. Qxder to raise so much of a testator's funeral and testa- mentary expenses, debts, and legacies, as the proceeds of real estate devised in trust for sale shall be insufficient to (r) See the various authorities treated in 2 Jarman on Wills, 4th ed., pp. 661-669; and as to exoneration of the personal estate generally, see notes to D. of Ancaster v. Mayer, 1 Wh. & Tu. L. C. Eq. 1. (s) 12 Eq. 175. ( t) Be Green, 40 Ch. D. 613. (w) TriAt V. Buchanan, 28 Ch. D. 446. In this case it was held that a testator's personal estate was not exonerated by the conveyance of real estate in his lifetime upon trust for payment of the debts which should be owing from him at his death. (v) Metvett v. Snare, 1 D. G. & Sm. 333 ; Newbegin v. Bell, 23 B. 386. ADMINISTRA TION. 1 87 pay and provide for, and the other personal estate is be- queathed in trust for specified objects beneficially, that other personal estate will be exonerated by necessary impli- cation, (w) It will also be exonerated from debts where the testator directs that his real estate or part thereof be sold, that the sale money be applied in payment of his debts, and that the residue thereof after such payment, be added to his personal estate and held in trust for persons named in his will, (x) Where a testator devises and bequeaths his real and Trust for personal estate in trust for sale and conversion, so as to conversion ; ^ _ , . ' mixed fund. form a mixed fund out of which he directs his debts to be paid, then the personal estate and the proceeds of the sale of the realty will be applicable rateably ; and if there be any Resulting surplus not disposed of by the will, there will be a resulting t^'^st. trust, so far as relates to the real estate, for the testator's heir at law ; and as to the personal estate for his widow, if any, and statutory next of kin. [y) But it is not necessary that the testator should have directed an absolute conver- sion. It is sufficient, if there appear by will an intention Implied to create a mixed fund of the proceeds of sale and conversion dnection to ^ _ convert. of the realty and personalty, out of which the debts or debts and legacies are to be paid, (z) Where a testator provides a specific fund for the payment Specific fund of his debts, and declares that the rest of his estate shall be "^ cient ;— ' ... ordinary rules. exonerated therefrom, his intention cannot, of course, be carried into effect, if the specific fund prove deficient. In such case the assets intended to be exonerated will be applicable to make up the deficiency (a) according to the ordinary rules of priority already explained. Where the Court holds that the personal estate is exone- rated, it generally does so upon the presumed intention of the testator to benefit the persons entitled to the personal estate at the expense of those entitled to the real estate. If, therefore, the gift of the personal estate lapses, then, in Lapse, absence of any direction to the contrary contained in the (w) Kilford v. Blaney, 31 Ch. Div. 56. (a;) Webb v. Jones, 1 Cox, 245 ; Forrest v. Prescott, 10 Eq. 545. (y) Elliott V. Dearsley, 16 Ch. Div. 323. As to resulting trusts, see Chapter II., supra, pp. 30 et seq. (z) Allan V. Gott, 7 Ch. 439 ; Singleton v. Tomlinson, 3 App. 404 ; Be Sankey, W. N. (89) 79. (a) Brook v. E. of Warwick, 1 H. & T. 142. 188 ADMINISTRATION. will, it will go to the next of kin charged with its primary liability to the payment of debts. (?>) But when there is no particular bequest of the personal estate, and the testator declares that it shall be exempt, it will be exempt ac- cordingly, even in favour of the next of kin. In such a case it has been held that the exemption was intended to be for the benefit of the persons whoever they might be, upon whom the personal estate might devolve, (c) Mortgage The rules above stated as to the exoneration of the personal ^ ^* estate originally applied, with some exceptions, to mortgage debts created by a deceased person, or adopted by him in his lifetime as debts of his own. This state of the law was 17 & 18 Vict, altered by what is known as Locke King's Act (17 & 18 Vict. *'• ^^^' c. 113) passed in 1854, and the Acts amending the same. By the Act of 1854 it was enacted that " when any person shall after the 31st December, 1854, die seised of or entitled to any estate or interest in any land or other hereditaments 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 contrary or other intention, the heir or devisee to whom such land or hereditaments shall descend or be devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such person, but the land or hereditaments so charged shall, as between the difierent 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, ac- cording to its value, bearing a proportionate part of the Act not to mortgage debts charged on the whole thereof." (d) The Act affect right of contains a proviso that " nothing herein contained shall affect mortgagee. (Jb) Kilford v. Blaney, 31 Ch. D. 56. (c) Fisher v. F., 2 Keen, 610; Uacre v. PatricJison, 1 Dr. & Sm. 189 ; Young v. Y., 26 B. 522. (fZ) I.e., diftVrent properties must bear the debt rateably according to their respective values at the death of the owner of the equity of redemp- tion : Trestrail v. Mason, 7 Ch. D. 655 ; Leonino v. L., 10 Ch. D. 460; Re Neicmarch,9 Ch. Div. 12; He AthiU, 16 Ch. Div. 211; Re Dunlop, 21 Right to refuse Ch. Div. 583 ; Sackville v. Smyth, 17 Eq. 153 ; Rochefoucauld v. Boustead, onerous gift. 1 Ch. (98) 560, C. A. ; Re Ritmn, ib. 667, (partnership debt). Upon the question how far a person is entitled to refuse a devise of property mortgaged beyond its value, and to accept other gifts under the same will, see Frewen v. Law, &c. Society, 2 Ch. (96) 516, and cases there cited. ADMINISTRATION. 189 or diminish any right of the mortgagee on such lands or hereditaments to obtain full payment or satisfaction of his mortgage debt either out of the personal estate of the person so dying as aforesaid or otherwise." In the year 1863 it was held by the Court of Appeal (e) ^^'^^^^ ^- ^^• that a testator showed " a contrary intention " within the meaning of the Act bj' directing his trustees to stand possessed of his personal estate bequeathed to them " in trust, in the first place, to pay all his just debts, funeral and testa- mentary expenses, and after full payment and satisfaction thereof," to invest the residue for the benefit of the several persons therein named. In consequence of this and other decisions it was, by 30 & 31 Vict. c. 69, (passed in the year 30 & 31 Vict. 1867) enacted that (s. 1) "in the construction of the will of ^- ^^• iTr-Tt^-r^-, , Contrary any person who may die alter the 31st December, 1867, intention. a general 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, 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 bv way of ,r , , ,. ), X Vendor s lien. mortgage on any part ot his real estate : (s. 2) " m the con- struction of the said Act, and of this 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." The general terms of the first Act, and especially the use Leaseholds. of the words " heir or devisee," showed that leaseholds were not intended to be within its provisions, and it was so held accordingly. (/) Moreover, it is obvious that s. 2 of the Act of 1867 did not apply to a lien for the unpaid purchase- money for land purchased by a person who died intestate ; that this was in fact, a casus omissus. It was accordingly held (jf) that the heir-at-law of a purchaser of real estate who had died intestate before completion, was entitled, notwith- standing this section, to have the purchase completed for his (the heir's) benefit at the expense of the personal estate. To remedy these defects, it was by 40 & 41 Vict. c. 34 40 & 41 Vict. c. 34. (e) Moore v. M., 1 D. J. & S. 602. (/) Be Wormsley, 4 Cli. D. 665. (y) Harding v. H., 13 Eq. 493. 190 ABMINISTRA TION. (passed in 1877) enacted that " the Acts mentioned in the Schedule hereto (the two Acts above set forth) shall, as to any testator or intestate dying after the 31st December, 1877, be held to extend to a testator or intestate dying seised or possessed of or entitled to any land or other hereditaments of whatever tenure vphich shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, or any other equitable charge, including any lien for unpaid purchase-money ; and the devisee or legatee, or heir, shall not be entitled to have such sum or sums discharged or satisfied out of any other estate of the testator or intestate unless (in the case of a testator) he shall within the meaning of the said Acts have signified a contrary Charge of intention ; (Ji) and such contrary intention shall not be debts, etc. deemed to be signified by a charge of or direction for pay- ment of debts upon or out of residuary real and personal estate, or residuary real estate." It has justly been observed b,v Kay, J., (i) that these Acts " are not in any respect a favourable specimen of legislation " ; but it would appear to be clear, since the passing of the last Acts now of the three Acts, that the two former ones are made to apply to apply to lands ,,.,,-. „ , xii-i c of any tenure, lands and hereditaments of any tenure ; so that m absence ot express provision to the contrary in the will, if any, of the deceased, the heir, devisee, or legatee, will himself have to pay the purchase-money of real or leasehold estate (/ ) agreed to be purchased by the deceased, or the unpaid balance Acts only; thereof, (h) This, however, is subject, as observed by his w'herHien Lordship, in the case above referred to, to a condition that exists. the Act can only apply where the vendor has a lien for his unpaid purchase money, and not to a case where the vendor has given up or waived his lien. Lands de- The Acts apply to lands delivered to a judgment creditor xT'ution under a writ of elegit ; (m) and they apply to equitable as Eauitable ^^^^ ^^ \G^dl mortgages ; (n) but none of them apply to mortgages, etc personal estate other than leaseholds. Therefore a specific What is now (A) Upon the construction of these words, see Ee Nevill, 59 L. J. Ch. a contrary 511 ; Ee Fleck. 37 Ch. D. 677; Ee Smith, 33 Ch. D. 195; Ee Newmarch, intention 9 Ch. Div. 12; Ee Eossiter, 13 Ch. D. 355; Elliott v. Dearsley, 16 Ch. Div. 323 ; Ee Hooper, W. N. (92) 151 ; Ee Campbell, 2 Ch. (93) 206. («•) Ee Cochcroft, 24 Ch. D. 94. ( j) Ee Kershaw, 37 Ch. D. 674. (A-) Ee CocJicroft, supra. (m) Ee Anthony, 1 Ch. (92) 450, 3 Ch. (93) 498. (n) Leonino v. L., 10 Ch. D. 460. ADMINISTRATION. 191 legatee of shares, stock, or other like personal estate is Specific legatee still entitled, in absence of express provision to the contrary, enutiedlo ' to have discharged out of the general personal estate the exoneration, money owing on any pledge of the subject-matter of the bequest made by the deceased in his lifetime ; and a like rule Proceeds of 11 1 1 ■^ p -x 1-1 s^lfi of realty. would appear to apply to the proceeds oi real estate devised in trust for sale, (o) Section VII, — Secured Creditors. Prior to the passing of the Judicature Acts, a creditor whose debt was secured by mortgage or otherwise might prove for his whole debt against the estate of his deceased debtor even if it were insolvent, and might afterwards realise his security, so long as he did not receive altogether more than twenty shillings in the pound upon his debt, {p) Now by the Judicature Act, 1875 (c. 77), s. 10, it is enacted Jud. Act, that " in the administration by the Court of the assets of any }^^^' ^" ]^' •^ •' Insolveut person who may die after the commencement of this Act, and estate, etc. whose estate may prove to be insufficient for the paj^ment in full of his debts and liabilities, and in the winding up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and Valuation of future and contingent liabilities respectively as may be in ' * force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt." (§) (o) Leiois V. L., 13 Eq. 218 ; Bothamley v. Sherson, 20 Eq. 314 ; Re Building Butler, 3 Ch. (91) 258. As to the application of the Acts to a building agreement, agreement, giving an option to the lessor to purchase ground rents, see Be Kidd, 3 Cii. (91) 558. (p) KdlocVs Case, 3 Ch. 776. Iq) See Uankrupicy Act, 1883 (c. 52), Schedule II., rr. 9-17 ; Bank- Bankruptcy ruptcy Rules, 1886, Form 72; Be May, 45 Ch. D. 502 ; Ex parte Norris, Act 1883 17 Q. B. Div. 728 ; Be Hopkins (No. 1), 18 Ch. D. 370 ; Be Hopkins (No. 2), Schedule II 31 W. R. 495 : Be D'Epineuil, 20 Ch. D. 217 (bill of sale) ; Be Maggi, 20 j-r. 9_i7. "' Ch. D. 545; Ex parte Schojield, 12 Ch. Div. 337 (bills of exchanjie, etc.); Bankruiitcv Be Bridges, 17 Ch. D. 342; Be Smith, 22 Ch. D. 586; Be Talbott, 39 Rules 188^ Ch. D. 567 ; Be Henley, 75 L. T. 307 ; Be Leng, 1 Ch. (95) 652, C A. ; Form'72 * but compare Quartermaijie's Case, 1 Ch. (92) 639 ; Be Fox, 1 Q. B. (94) 438. A Judgment creditor does not, by obtaining an order appointing a receiver by way of equitable execution, become a secured creditor under « Secured the Bankruptcy Acts, or under the Companies Acts, Be Potts, 1 Q. B. (93) creditor " 648, C. A. ; Croshaw v. Lyndhurst Ship Co., 2 Ch. (97) 154. 192 A DMINISTnA TION. of specific legacy. Section VIII. — Legacies and Annuities. n 1 A Legacies are generally divided into two classes, namely specific general and specific. legacies. ^ legacy is general where it does not amount to a bequest Definition of ^j any particular tiling or sum of money, as distinguished ' from all others of the same kind. Thus, if a testator gives A. a diamond ring, or a horse, or £1000 or £1000 stock, not referring to any particular diamond ring, horse, money, or stock, as distinguished from others, these legacies will be general, (r) A legacy is specific, when it is a bequest of a particular thing, or sum of money, or debt, as distinguished from all others of the same kind. Thus, if a testator gives B. " my diamond ring," " my black horse," " my £1000 stock," or £1000 contained in a particular bag or "owing to me by C." (s) " or invested in Consols," (<) in these and like instances, the legacies are specific. So also a bequest of " the black horses of which I shall be possessed at the time of my death " or at any other time ; or of " all my stock in the Midland Eailway Company " is specific, (u) But a gift of specific articles or items, " and all other my personal estate " or of " all my personal estate including (or excepting) my Midland Eailway stock " would not be specific, (v) Leaseholds specifically bequeathed vest, upon the assent of the executor, absolutely in the legatee, without any deed of assignment, (vv^ A specific legatee is entitled to his legacy in case of a Leaseholds ; — assent of executor. Must be of a part of testator's estate. Misdescription of bequest. (r) See notes to Ashburner v. Macgidre, 1 W\i. & Tu. L. C. Eq. 787. (s) I h., p. 788. In Botliamley v. Sheri'- it was intended to be for some other period or perpetual, (e) Where an estate was being administered by the Court, I°'^estment to and the funds were amply sufficient to provide for a life annuity. annuity, the Court formerly (in absence of any provision to the contrary contained in the will of the deceased) directed an investment in Consols, Eeduced, or New Three per Cents, of a sum sufficient to provide for the annuity, and it would be content with nothing else. (/) Then the dividends were directed to be paid to the annuitant during his life; and upon his death, the residuary legatees, or other persons entitled j-eJauary were at liberty to apply to the Court for transfer of the fund legatees, etc. (b) Edicards v. Warden, 1 App. 305. (c) S. 13. See Re Johnson, 29 Ch. D. 964. (rf) Re Johnson, supra. As to the effect of ^ acknowledgment by one Acknowledg- of several executors or trustees in taking a debt out of the operation of ment by one the Statute of Limitations, see Re Macdonald, 2 Ch. (97) 181 ; Astbury executor, etc. V. J., 2 Ch. (98) HI. (e) JBlight v. Rartnoll, 19 Ch. D. 294 ; Willdns v. Jodrell, 13 Ch. D. 564; Hichs v. -Ross, 14 Eq. 141, 3 Ch. (91) 499; Bent v. Cullen, 6 Ch. 235; Re Stratheden, W. N. (93) 90; Re Morgan, 3 Ch. (93) 222. See Substitution- this last case as to substitutionary gifts. .ji-y oifj^ (/) Re Owthwaite, 3 Cli. (91) 498; Hume v. Lopes, 1 Ch. (91) 423, A. C. ' -^ '^ (92)112. 200 AD MINIS TRA TION. Payment of present value of annuity. Declaration negativing this right. Value of perpetual annuity ; of life annuities and legacies, where estate de- ficient. Actual events. to themselves. Now the Court will, generally, (g) nnder such eircuiiistances, direct the annuity to he secured by the purchase of such a sum of New Consols a.*;, treating the interest at 2h per cent., would be sufiScient for that purpose ; (h) and will then distribute the residue, if then distributable, (hh) If the trustees of a will are directed to purchase a Government annuity for the benefit of a given person who is sui juris, the annuitant may intercept the annuity, and claim the money which would be required to purchase it ; (i) and though the annuity may be so given that, either by means of a conditional limitation or a gift over, it may cease to be payable to a particular person in a given event, yet in other cases a declaration, negativing the last-mentioned right of the legatee of a Government annuity who is sui juris is repugnant and void, (y) Where a person sui juris is entitled to a perpetual annuity amply secured, and he is willing to receive a present payment of cash in lieu of his annuity, the amount of such cash payment ought to be such a sum as, at the price of the day, will purchase an amount of 21 per cent. Government Stock, sufficient to produce the annuity, excluding any charge for brokerage. (¥) If the estate is not sufficient for the payment of legacies and annuities, the latter will be valued, and the amount of valuation will abate in the same proportion as the general legacies. (J) In such a case the Court will have regard to the events which may have happened up to the time when the estate of the testator is being dealt with. If some of several annuitants have died since the testator, the amount which Mortgage to secure annuity. Restraint on alienation : — repugnancy. No preference to widow's legacy, etc. (fj) In Re Parry, 42 Ch. D. 570, North, J., held that though the annuitants were entitled to liave tlieir annuities properly secured, a mortgage of real estate was sufficient under the circumstances. (h) he Oicthicaite, supra ; Hichs v. Boss, 3 Ch. (91) 503 ; Re MeacoeJc, W. N. (89) 9. See the tirst of these oases as to how far this right ia atfected by the Trust Investment Act, 1889 (c. 32), and the Trustee Act, 1893 (c. 53). (hh) Harbin v. Masterman, 1 Ch. (96) 351. (0 ReMabhM, 1 Ch. (91) 707. (/) IIurd-FouMon v. Fiirber, 3 Ch. D. 285 ; Re Mabbett, 1 Ch.(91) 714. As to the invalidity of a direction restraining alienation, or repugnant to the nature of a gift, see Re Elliot, 2 Ch. (9(3) 353; Re Thompson, 44 W. R. 582. (k) Hicks V. Ross, 3 Ch. (91) 499. (I) No preference is given to a legacy to a testator's widow : Re Schicefler, 3 C!h. (91) 44, nor to an annuity to her, even if given in satis- faction of dower : Re Greenwood 2 Cli. (92) 295. ANNUITIES. 201 inust abate pari paesu with the general legacies and other annuities (if an}')will, in the case of those who are dead, he the amount of the arrears due ; in the case of those who are alive, the amount to abate will be the amount of the arrears (if any) added to the then present value of a Government annuity of the amount bequeathed. (?>i) It has recently been held by Kekewich, J., that the amount calculated according to these rules will be payable to an anniiitant, notwithstanding a provision rendering his annuity liable to forfeiture on bank- ruptcy, or other event whereby he would be deprived of the personal enjoyment thereof. (») Section IX. — Donationes Mortis Causa. Mr. Justice Story in his work on Equity Jurisprudence, (o) Definition. defines a donatio mortis causa as " a gift of personal property by a party who is in peril of death, upon condition, that it shall presently belong to the donee, in case the donor shall die, but not otherwise." It has long since been held that Requisites to three conditions must be fulfilled in order to constitute an c°'i*'^\*"*« ™ , , . . ^ rm T • * ^^°'^ donatio effectual donatio mortis causa. These conditicms are as mortis cunsd. follows: namely, (1) the gift must have been made in contemplation, though not necessarily, in immediate expec- tation of death; (2) the gift must be made under circum- stances showing that it is to take efiect only in the event of the death of the donor, or in other words that the subject matter is to revert to the donor in case he should recover; and (3) the subject matter of the gift must have been delivered to the donee. Thus in Be Dillon, (p) a person in ^^ Dillon. his last illness took a banker's deposit note out of a chest belonging to him, and gave it to his sister-in-law, saying, (m) Potts V. Smith. 8 Eq. fiS3 ; iJe Willcins, 27 Ch. D. 703 ; Be Mahhett, charo-e on supra; Re Tooted, 2 Ch. Div. 628. Upon the qucstioD whether as ii eoruus etc matter of constraction, an annuity is charged on corpus, or on income ' only, see Re Mason, 8 Ch. D. 411 ; Birch v. Sherratt, 2 Ch. 644 ; Roolh v. Coulion, 5 {b. 684 ; Wormald v. Muzeen, 50 L. J. Ch. 776 ; Carmichad v. Gee, 5 A pp. 588; Nichell v. Wilton, 20 Eq. 269; Re Mufett, 39 Ch. D. 634 ; Re Harrison, 43 Ch. D. 55 ; Re Morgan, 3 Ch. (93) 222. When an annuity cliarged upon the corpus of settled real estate is in Scale of real arrear, the Court has power to order the arrears to be raised by sale or estate to pay mortgage of the estate, though the making of such an order is a matter, arrears, not of course, b)it of discretion : Ilambro v. H., 2 Ch. (94) 564. (n) Re Sinclair, 1 Ch. (97) 921. (o) S 606. (p) 44 Ch. Div. 76. 202 ADMINISTRATION. First and second requisites implied. Gardner y. Parker. Antecedent delivery. Constructive delivery ; — key of box, etc, Contemplated suicide. •' I am going to give it to you conditionally. If I get well, you will give it me back ; if not, you are all right." It was held by Kekewich, J., and by the Court of Appeal that there was a good donatio mortis causd. The first and second conditions above mentioned namely that the gift was made in contemplation and intended only to take effect in the event of the death of the donor, need not necessarily be expressed, but may be implied from the circumstances. In Gardner v. Parker, (q) a person in his last illness, gave to the plaintiff, in presence of a servant, a bond for £1800 saying, " There, take that, and keep it." It was held by Leach, V.C., that a good donatio mortis causd was thereby constituted. With reference to the third condition, namely delivery, it has recently been held that an antecedent delivery of a chattel, the subject matter of the gift, was sufficient, although the delivery had been made alio intuitu, and that it was not necessary that the donee should have given back the same to the donor, so as to enable him to make a fresh delivery thereof, (r) There may, however, be a constructive delivery, e.g., if the donor delivers to the donee the key of a box or safe with the intention of passing the contents thereof, such contents will pass accordingly, (a) But the case is otherwise where such a key is delivered to a person in the position of a house- keeper, for the purpose of safe custody on behalf of the donor. (^) So also delivery to an agent for the donee is sufficient ; (ii) but delivery to an agent for the donor, will not amount to an actual delivery to the donee, (v) When a gift is intended to be effectuated by a person in good health, but contemplating suicide, the requisites -for constituting a good donatio mortis causd are wanting; and the subject matter of the intended gift will, in the event of the suicide being committed, pass to the donor's personal representative, (lo) (q) 3 Madd. 184. (r) Cain v. Moon, 2 Q. B. (96) 283. (s) Mustapha v. Wedlake, 8 Times Eep. 162, and cases there cited. Re Taylor C)C) L. J. Ch. 597. As to the ettVct of a bequest of a desk, with the contents thereof, see Re Rohson, 2 Ch. (91) 559. (0 Trimmer v. Danhtj, 25 L. J. Ch. 424 ; Hawkins v. Blewitt, 2 Esp. 663. (m) Moore v. Darton, 4 D.G. & Sm. 517. (v) Farquharson v. Cave, 2 Coll. 35(3, 357. (to) Agnew v. Belfast, &c., Co., 2 Ir. Ii. (90) 204, C. A, DONATIONES MORTIS CAVSl. 203 If the donor resumes possession, there will he an end of Resumption of the gift ; and the subject matter thereof will, on the donor's ' * " death, pass to his personal representative, (a) A donatio mortis causa may he made for a special purpose, Gift in trust, and coupled with a trust, (^y) The Wills Act does not apply to a donatio mortis causd ; Wills Act not hut when a gift is made by writing intended to take effect ''''1' "^"^ as a testamentary instrument, and it does not comply with the requirements of the Act, the gift cannot take effect, either as a donatio mortis causd, or as a gift inter vivos, (z) It Revocation by will. has been held that a donatio mortis causd cannot be revoked by will ; but that it may be satisfied by a legacy, (a) It has also been held that there are certain kinds of Property 1 ^ • ^ -11 i-j^tj- which may personal property which, cannot be the subject oi a donatio j,e ji,e subject mortis causd. In an old and leading case before Lord of a djnatw Hardwicke, L.C., (6) this doctrine was applied to i^eceipts "^°'^,!*g'^|!^''' for South Sea Stock, on the ground that they were not documents of title whereby a transfer of the stock could be effected ; and Hall, V.C, (c) applied the doctrine to the case of scrip certificates for railway stock. Again, it has been held that money payable in the donor's lifetime, by cheque on his own banker, cannot be the subject of such a gift — on the ground that upon the donor's death, the authority of the bank to pay the money would be at an end. (d) But the correctness of these decisions would appear to be doubtful ; and some of them, at all events, may require to be re- considered, (e) It has, however, been held by Malins, V.C, Cheque . ^ ' . payable to that the gift of a cheque drawn by a person on his own bank wife in donor's in favour of his wife, or her order, and negociated hy her in his lifetime; lifetime, amounted to a good donatio mortis causd, although it was not presented for payment at his bank until after his death. (/) In like manner it was held by Chitty, J., ((/) to donor him- that there may be a good donatio mortis causd of the money ^ ' '"" 'JO J dorsement. (x) Bunn v. Marhham, 7 Taunt. 232. (y) Hills V. H., 8 M. & W. 40i. (z) Re Rtighes, .36 W. K. 821. (a) Jones v. Selby, Prec. Ch. 300. See also Johnson v. Smith, 1 Vca. Sen. 316. (6) Ward v. Turner, 2 Ves. Sen. 431. (c) Moore v. M., 18 Eq. 489. (d) Re Mead, 15 Ch. D. 6.54 ; Re Beak, 13 Eq. 489. (e) See observations of Lindloy, L. J., in Re Villon, 44 Ch. Div. 83. (f) Rolls V. Fearce, 5 Ch. D. 730 ; Boutts v. Ellis, 4 D.G. M. & G 249. (gf) Clement v. Cheesman, 27 Ch. D. 631. 204 ADMINISTRATION. Instrument not passing by delivery. Negociable instrument. Bond. Right to sue. Money deposited in bank. Return of receipt, etc. payable under a cheque drawn by a stranger in favour of the donor, although it was never indorsed by the donor. Moreover there may be a good donatio mortis causa of an instrument which does not pass by delivery, and such a gift may be made eifectual after the donor's death by means of a declaration by the Court to the effect that his executors or administrators are trustees for the donee, (li) But it has long since been held, and subject to the above observations, it is uow the law, that a negociable instrument, e.g., a bill of exchange or a proiuissory note may be the subject matter of a donatio mortis causa, and that if the above mentioned requisites be observed, the right to the inoneys thereby secured will pass to the donee, though the bill or note was not indorsed by the donor, (i) So also there may be a good donatio mortis causa by the delivery, with the like requisites, of a bond. The delivery of any such ii<-gociable instrument or bond will give to the donee a right to call upon the personal representatives of the donor, after his death, to make good the title of the donee by suing, or giving him authority to sue the person liable to pay the money thereby intended to be secured. So also an effectual donatio mortis causa of money standing to a deposit account at a bank will pass by the delivery of the deposit note ; and it will make no difference that there is endorsed on the note a form of cheque to be filled up by the depositor, on the withdrawal of the money thereby represented — at all events, not if such cheque, when filled up and signed, is intended to be kept by the bank only as a receipt for the money when withdrawn ; (j) nor is it material that such cheque has not been filled up or signed by the donor ; (h) nor that the note is marked " not transfer- able." (Z) So also it was held by Knight Bruce, V.C., (m) that the handing back by a lender to an agent for the borrower of a document consisting of a receipt for the moneys lent, and an agreement as to the time of repayment of the loan, and stating the rate of interest payable in respect thereof, (fe) Be Dillon, 44 Ch. Div. 82. (z) Clement v. CheeKman, supra. Compare u. (y), supra, p. 15. (?) He Dillon 44 Ch. Div. 7G. (70 I'orter v. Wahli, 1 Ir. K. (96) 148, C. A. (Z) Cassidy v. Bdfast, rfc, Co , 22 L. R. Ir. 68. im) Moore v. Darion, 4 D.G. & Sui. 517. DONATIONES MORTIS CAUSA. 205 CDnstitnted a good donatio mortis causa and amounted to a cancellation of the debt. So also the delivery of a policy of assurance may amount Policy moneys, to a good donatio mortis causa of the moneys payable there- under, (n) So also there may be an eifectual gift of the moneys Delivery of secured by a mortgage, by the delivery to the donee of the Jj].g'j?^*' mortgage deed. In Duffield v. Elwes, (o) a mortgagee, in Duffiebl v. his last illness, delivered to his daughter certain deeds ^'"''^*- consisting of (1) a conveyance in fee of lands to secure the sum of £2927 with the usual covenant for payment of the money lent, and a bond by veay of collateral security ; (2) an assignment of a mortgage debt of £30,000, and of a judgment for that sum recovered on a bond, with a conveyance of the land, and the usual covenant for payment of the money. It was held by the House of Lords that there was a good donatio mortis causa, raising a trust by operation of law, which a Court of Equity would execute, and which was not within the provisions of the Statute of Frauds, (p) It will be observed that in this respect, Points in there is a difference between a donatio mortis causa, and a ^^^ich donatio • n • • XII T y-( -n 11 mortis cnusu gift inter vivos. In the latter case, the Court will not lend differs from its aid to perfect an incomplete voluntary gift, (g) More- gift "*^<''' ^■»*'o* i over when a donor intends a gift to take effect as a gift inter vivos, and it fails, as being incomplete, it cannot take effect as a donatio mortis causa. (>•) A donatio mortis causa differs from a legacy in that no from a assent on the part of the executors of the donor is necessary, I'^S-'^cy ; in order to complete the title of the donee; (s) but it jeatii duties. resembles a legacy in that it does not take effect in the donor's lifetime, that it is liable to his debts, in the event of a deficiency of his other assets, (<) and that it is, by the Act 8 & 9 Vict. (c. 76), s. 4, liable to legacy duty. It was liable to account duty under the Customs and Inland Eevenue Act 1881 (c. 12), s. 38, in the case of persons dying on or before the 1st August 1894, (u) and is now, under the (n) Witt V. Amia, 1 B. & S. 109. (o) 1 Bli. N.S. 497. (p) See supra, p. 5. Iq) See supra, p. 11 ef seq. (r) Moore v. M., 18 Eq. -184. (s) Thompson v. llodrf^on, 2 Sir. 7 '.7. {t) Tate V. Leithead, Kay, G;VJ. (u) Rt Foster, 1 Cli. (97) 481. 206 ADMINISTRA TION. Finance Acf, 1894, (c. 30) s. 2 (1) (c), subject to estate duty, in the case of persons dying after that day. Evidence. A dimatis mortis causa may, like a gift inter vivos, bo established by the uncorroborated evidence of a claimant against the estate of the donor ; but such evidence will be regarded with jealous suspicion, (y) Jfarshalling of assets ; — definition. Illustration. Marsliallinf; of securities. Section X. — Marshalling of Assets. The term marshalling of assets is based on the military figure of marshalling or arranging an army in order of battle; and it has for generations past been used in the sense of arranging assets in proper order, so as to do justice to all persons interested in the estate of a decreased person. It is based upon the principle that a person having a right to resort to two funds for satisfaction of his claim shall not by his choice disappoint another person who is only entitled to resort to one of the funds, (n) This is a case of marshalling strictly so called, but the term is sometimes used in the more loose sense of finally adjusting the rights of the persons interested, when the order of application of the various assets of the deceased for the satisfaction of his debts and liabilities according to the rules above explained or the directions of his will, has not been observed. The subject is not now so important as it was before real estate was made liable in all cases to the payment of simple contract debts; but there are many cases to which it is still applicable ; and it is a most important and interesting branch of equity juris- prudence. If before 3 & 4 Will. 4, c. 1 04, there were two creditors to each of whom the estate of a deceased person owed, say, £1000 — one a creditor by specialty in which the heirs were bound, and the other a creditor by simple contract ; and if the personal estate, after payment of the funeral and testa- mentary expenses, amounted to £1000 only, — the real estate being of greater value still— then if the specialty creditor proceeded against the real estate alone, both creditors would (v) lie Richanhnn, 30 Ch. Div. 401 ; Be Gamett, 31 ih. 1 ; Be Hodgson, ib. 177; Be Dillon, 44 ib. 80; Be Applehee, 3 Ch. (91) 422; Eyre v. Wynn-Mackenzie, 1 Ch. (94) 22.5, 220 ; Fowkes v. Bascoe, 10 Ch. 349. As to a debt claimed against the estate of a deceased person, see Be Finch, 23 Ch. Div. 267. (?!) Aa to the marshalling of securities, see Ch. XIV. s. VIII., infra. ADMINISTBATION. 207 be paid ; while, if he proceeded against the personal estate alone, nothing would have been left for the simple contract creditor. In order to avoid the injustice which would other- wise arise, the Court, by the jirocess of marshalling allowed the simple contract creditor to stand in the place of the specialty creditor to the extent to which he had been dis- appointed by the election of the latter. No injustice is, as a rule, done to a creditor when he is There must be paid in full ; but it is of the essence of the doctrine of the ^^'^ /"°''f '"" r^ 1-111 11 rights not to Court on this head, that there should be two funds to which be prejudiced. a person is entitled to resort; (o) and also that the rights of the person so entitled be not prejudiced by its application. There can be no right to marshal if these conditions cannot be fulfilled. The Court will not, in absence of some special equity, marshal between persons who have not both demands against the estate of the same debtor. In an old case (ji) Lord Eldon remarked that " it was never said that if I have a demand against A. and B., a creditor of B. shall compel me to go against A. without more." Since the passing of the Statute 3 & 4 Will. 4, c. 104, it is ^^Ty applSle not necessary to resort to the doctrines of the Court as to for adjusting marshalling as between one creditor and another : but only "§'>'/ pf . DGnGnciciriGS for the purpose of adjusting the rights of the persons entitled to the surplus of the estate of the deceased after satisfaction of all debts and liabilities ; — e.g., if the personal estate and the proceeds of sale of real estate as to which a testator has died intestate, have been applied in payment of debts, the heir may come upon the testator's real estate if any Right of heir. devised in trust for the payment of debts, to the extent to which he has been disappointed by such application. He will have this right, because the latter property is, according to the rules stated above, applicable before real estate descended can be resorted to. And so in any other case where assets have been applied out of their proper order for pay- Assets applied ment of debts, the person thereby disappointed will i^g out of order. entitled to be placed in the same position as if the proper order had been observed. A widow is entitled to have her deceased husband's estate (o) I.e., two funds standing nijon an equal footing, per liindley, L.J. : Two funds Wehh V. Smith, 30 Ch. Div. 202. must be on (p) Ex parte Kendall, 17 Ves. 520, and see Ez parte Salting, 25 Ch. equal footinz Div. 148. ^ 208 ADMINISTEA TION. Widow ; — Faraphcrnalia, General legatee. Legacies chartced on real estate, etc. Court would not marshal iu favour of charity. Mortmain Act, 1736. raraphcrnalia ; — definition. marshalled in respect of her jiaraphernalia, (q) but it is doubtful, upon the authorities, whether she is entitled so to do as against estate specifically devised and bequeathed. It would appear, however, that she is so entitled as against each class of assets liable to be applied before these, (r) It would also appear that a general legatee is entitled to marshal as against real estate devised in trust for the payment of debts, real estate descended, and real estate devised charged with debts ; (s) but the recent authorities on this head are somewhat conflicting, (t) The Court will marshal as between legatees whose legacies are, and those which are not charged on real estate. It has already been stated that where legacies are given simpliciter, they will only be payable out of personal estate. Therefore, if a testator bequeath general legacies, some of which are, and some of which are not charged on his real estate, then if the personal estate should be insufficient to pay them all in full, the Court would direct those charged on the real estate to be paid out of such estate in the first instance, in order to leave the personal estate intact for the legatees whose legacies are not so charged ; or if they have been paid out of the personal estate, would allow those not so charged to be paid by means of the real estate to the extent by which the legatees may have been disappointed by the application of the personal estate. An exception to the doctrine of marshalling arises in the case of a charity. The Court will not, as a rule, marshal in favour of a charity. It will be borne in mind that upon the construction put by the Courts upon the Statute, 9 Geo. 2, c. 36, (u) legacies for charitable purposes payable out of the proceeds of sale of land or moneys charged on (q) I.e., her personal apparel, and ornaments suitable to her station iu life. These, if given to the wife by any person other than her husband, are not liable to satisfy his debts ; but they belong to her for her sei)arate use. If they have been given by tiie liusbaud himself, to be worn by her as ornaments of her person only, then they are liable to his creditors, both in his lifetime and after his death : Jervoise v. /., 17 B. 566; Graham v. Londonderry, 3 Atk. 393 ; but the case would appear to be different if the husband had made the gift absolutely, i.e., fur her separate use, ib. ; Tasker-v. 2'., P. (95) 1. (r) See Snehon v. Corbet, 3 Atk. 3G9 ; Tipping v. T., 1 P. W. 730. (s) Tipping v. T., 1 P. W. 730 ; Roberts v. Ilanby, Amb. 127. (i) Re Bailer, 3 Ch. (94) 250; Re Salt, 2 Ch. (95) 203; contra Re Bate, 43 Ch. D. GOO. (m) Pupcided by the Mortmain and Cliaritable Uses Act, 1888 (c. 42), cxcei)t so much of s. 5 as was before unrepealed. See supra, p. G. ADMINISTRATION. 209 land were, witli some few exceptions, void. The law in this respect has "been altered by the Mortmain and Charitable Mortmain, Uses Act, 1891 (c. 73) as to testators dying after the etc., Act, 1891. 5th August, 1891. But if, under the old law, a testator bequeathed charitable legacies amounting together to £1000 and also non-charitable legacies to the like amount, and died possessed of £3000, applicable for payment of legacies, namely, £1000 pure personal estate, and £2000 not applicable for the payment of charitable legacies, the Court would assume that all the legacies were intended to be paid rateably out of each fund ; so that two-thirds of the chari- table legacies would fail. For some reason which has never been satisfactorily explained, the Court would not marshal mero motu, even in the case put by way of illustration, so as to reserve the pure personal estate intact for the charitable legacies — though the entire funds were sufficient to pay the whole of both classes of legacies, and to leave £1000 surplus. But if the testator Marshalling himself chose to marshal in favour of the charitable legacies, ^^ testator the Court would carry his intention into effect, («) e.g., if the testator's will directed that the charitable legacies should be paid out of his pure personal estate. This would have been only a partial marshalling in the Partial case above mentioned ; because one-thitd of the non-chari- "i^i'^^"-'*'"''?' table legacies would still have been payable out of the pure personal estate ; and only two- thirds of that fund would have been left for the charitable legacies, (yi) The Court would, however, have ordered the charitable legacies to be paid in full, if the will had contained a direction, not only that they should be paid out of the pure personal estate, but be paid thereout in priority to all other pay- ments, (x) Section XI. — The Powers, Duties, and Liabilities of Executors and Administrators. An executor or administrator has full power for the Power of purposes of administration to sell, mortgage, or pledge the executor, etc., leasehold or other personal estate of his testator or intestate, and to' give (v) Wigg v. Nicholl, 14 Eq. 92. receipts. (w) Beaumont v. Oliveira, 4 Ch. 309 ; Re Somers-Cock.% 2 Ch. (95) 449. (a;) Miles v. Harrison, 9 Ch. 316 ; Be Arnold, 37 Ch. D. 637. P 210 ADMINISTRATION. Concurrence of legatee not necessary. Sale must be bona fide. Testator's busineas. Stock in joint names under Companies Clauses Act. Land Transfer Act, 1897, s. 2 (2). Evidence of debt. Assent to legacy. Creditors. 56 & 57 Vict, (c. 53), s. 21. 44 & 45 Vict, (c. 41), s. 37, 23 & 24 Vict. (c. 145), s. 30. Power of executors to compound, etc, and to give a good discharge for the money thereby realised. Any such mortgage may be either legal or equitable. It may contain or imply by statute (jj) a power of sale, and if the property sold, mortgaged, or pledged has been specifically bequeathed by the will of the deceased, the concurrence of the specific legatee is not necessary. («) But any such transaction must, in order to be eifectual, be made bond fide on the part of the purchaser or mortgagee, and for the purposes of the estate under administration ; (a) and it would not enable an executor to raise money by mortgage for the purposes of the business of the deceased which an executor has carried on ostensibly as his own, though in fact as a trustee, or for the benefit of the estate, and under such circumstances, as would entitle him to be indemnified as between himself and his beneficiaries, or the next of kin. (h) Though one of several executors may sell, mortgage, or pledge the estate of the deceased (c) he cannot alone make a valid transfer of railway shares or stock registered in the names of himself and his co-executors under the provisions of the Companies Clauses Act, 1845 ;(c?) nor can he, under s. 2 (2) of the Land Transfer Act, 1897, (c. 65) sell real estate without the authority of the Court. An executor or administrator may pay or allow any debt or claim on any evidence that he thinks sufiScient. (e) Executors or administrators have, as a rule, no power to carry on the business of their testator or intestate, except (y) See the Conveyancing Act, 1881 (c. 41), ss. 19, et seq. (z) Russell V. Plaice, 18 B. 21 ; E. Vane v. Eigden, 5 Ch. 663 ; Berry T. Gibbons, 8 Ch. 747 ; Cruikshank v. Dufjin, 13 Eq. 555. (a) Bichette v. Leivis, 20 Ch. D. 745 ; Child v. Thorley, 16 Ch. D. 151 ; Thome v. T., 3 Ch. (93) 196 (mortgage to building society). See this last case as to the circumstances from which the assent of an executor to a legacy will be presumed. (b) Re Morgan, 18 Ch. Div. 93. As to the rights in such case of creditors of the testator, and of persons becoming creditors of the executors after the testator's death, respectively, and as to the right of an executor to indemnity, see Dowse v. Gorton, A. C. (91) 190 ; Re Johnson, 15 Ch. D. 548 ; Strickland v. Symons, 26 Ch. Div. 245 ; Ex parte Butcher, 13 Ch. Div. 465 ; Re Kidd, 70 L. T. 648 ; Re Evans, 34 Ch. Div. 597 ; Re Bach, W. N. (92) 108 ; Re Brooke, 2 Ch. (94) 600. (c) Charlton v. E. of Durham, 4 Ch. 433 ; Re Ingham, 1 Ch. (93) 360. (d) C. 16: Barton v. North, etc., Co., 38 Ch. D. 458. (e) Trustee Act, 1893 (c. 53), s. 21, corresponding to s. 37 of the Conv. Act, 1881 (c. 41), and s. 30 of Lord Cranworth's Act, 1860 (c. 145). See the remainder of the section as to the power of executors, administrators and trustees to compound, compromise, etc.; also W. of England, etc.. Ban];, v. Murch, 23 Ch. D. 138. The repealed Acts did not include an administrator. ADMimSTMATIOK 211 for tlie purpose of winding it up. But they are bound in some cases, to complete contracts entered into by the deceased Contracts, etc. in his lifetime — e.g., where a builder has contracted to build a house and has died after having provided the materials and half completed the work. (/) Power to carry on a business may be conferred by the will of the deceased ; and Testamentary where the will gives a general power to postpone the sale P"^^*^'' **' ^'^^[^S and conversion of the estate, without referring to the sale of as a ' business, the executors may carry on the business for a soing concern. reasonable time in order to sell it as a going concern, {g) A power of this nature would not prevent the creditors who Right of might be prejudiced thereby, from taking proceedings for the "•s*^"^ors to immediate winding up of the whole of the estate, if insolvent, wound up. the business included. Any profits realised by carrying on Profits; — the business belong to the estate, (/») and the executors are "^^^'^^'^'*'y- personally responsible for any debts which they may thereby incur ; but where they carry on the business in accordance with a testamentary power in that behalf they will be entitled to indemnity out of the estate. (J) One of several executors is competent to give a good dis- Power of one charge for money belonging to a testator's estate, (j) executor to An executor or trustee has power, even though no express fhlrgel" authority be given him for that purpose in the will, to Power to agree with a residuary or general legatee to appropriate a appropriate specific portion of the estate to him in discharge or in of *^estate to '*"^ part discharge of his share or legacy. (Jc) legatee. An executor or administrator who has wasted or misapplied Devastavit. the assets of his testator or intestate is personally liable to make good the loss thereby occasioned ; — as for a devastavit, (0 Collinson v. Lister. 20 B. 365. (g) Be Chancellor, 26 Ch. Div. 42 ; Re Smith, 1 Ch. (96) 171. (/i) Ex parte Garland, 10 Ves. 119; Re Johnson, 15 Cli. D. 548 ; Dowse V. Gorton, A. C. (91) 190. As to the rights of executors in respect of a debt due to the estate of a testator from his surviving partners, where the business has been carried t»n by the latter in conjunction with tlie executora under a power con- tained in the will, and where the firm has become bankrupt, see Scott v. Izon, 34 B. 434. As to the construction and effect of a power to carry on a testator's business generally, see Be Cameron, 26 Ch. Div. 19 ; Be Smith, supra. (i) Dowse V. Gorton, supra. (i) Re Stevens, 1 Ch, (97) 429 ; 1 Ch. (98) 162, C. A. The case is otherwise as to money payable to trustees : see supra, pp. 47 n, 59. {Ic) Re Lepine, 1 Ch. (92) 210, C.A. ; Fraser v. Murdoch, 6 App. 855 ; land Transfer Re Waters, W. N. (89) 39 ; Re Brooks, 76 L. T. 771 ; Re Nickels, 1 Ch. Act 1897 s 4 (98) 630 ; Land Transfer Act, 1897 (c. 65) s. 4. . . • • P 2 212 ADMINISTRA TION. Paying legacies, etc., before debts. Statutes of Limitation. Defence of mere delay. Eight to follow assets. Refunding. Purchaser for value. When executor, etc., not a necessary party to action. Payment of interest by tenant for life, as it is called. It is a devastavit for an executor to pay legacies, or to distribute the estate without paying or pro- viding for debts. It was a devastavit before 32 & 33 Vict. c. 46 (?n) to pay simple contract debts in preference to debts by specialty of which the executor or administrator had notice. Such a claim being against the executor or administrator personally he could always, and can still, after six years, plead the Statute of Limitations by way of defence, (n) But mere laches in abstaining from calling upon the executors to realise for the purpose of paying his debt, will not deprive a creditor of his right to sue the executors for devastavit, unless there has been such a course of conduct, or express authority, on his part, that the executors have been thereby misled into parting with, the assets available to answer his claim, (o) If, however, on taking the accounts under an administration judgment in the ordinary form, the executor is properly charged with the receipt of assets, lie cannot by means of the Statute discharge himself as to any improper payments made more than six years before action, on the ground that they amounted to a devastavit ; as that would be an attempt to take advantage of his own wrong, (p) "When an executor or administrator has distributed the estate of his testator or intestate, a creditor whose debt remains unpaid is entitled to follow the assets as against the residuary or other legatees or next of kin who have received the same or persons claiming under them, and may, as a rule, successfully commence an action to compel them to refund. ((/) But this right cannot be enforced against a purchaser for value without notice of any improper dealing, or of the existence of any unsatisfied debts. (53) If such an action as is last mentioned be commenced after the estate shall have been administered under the direction of the Court, or after the executor or administrator shall have inserted the advertisements required by 22 & (m) Supra. (n) Re Gale, 22 Ch. D. 820 ; BlaJce v. Gale, 32 Ch. Div. 571. Payment of interest by a tenant for life will be an answer to a defence by a remainderman under the Statute : Re EoUingshead, 37 Ch. D. 651. (0) Re Birch, 27 Ch. D. 622 ; Re Baker, 20 Ch. Div. 230. (p) Re Hyatt, 38 Ch. D. 618. Iq) Hooper v. Smart, 1 Ch. D. 90 ; Be Metcalfe, 13 Ch. Div. 236 ; Bavies v. Mcolson, 2 D. & J. 693 ; Re Boioden, 45 Ch. D. 444; Re Brogden, 38 Ch. Div. 573. iqq) Graham v. Drummond, 1 Ch. (96) 968. As to the right to follow trust funds, see supra, pp. 70 et seq. ADMINISTRATION. 213 23 Vict. c. 35, s. 29, tlien the executor or administrator is not either a necessary or a proper party, (r) Such a claim being equitable, may be barred by lapse of time, or by the p^^™ barred T? • ■ ■ .^ T /-I ^- r xi i r / N by delay, etc. creditors acquiescing m the distribution oi the estate, {s) Every person taking a residue does so, subject to the testator's liabilities, and runs the risk of it afterwards turning out that there are undiscovered liabilities, (t) If there should afterwards appear to be such liabilities, then the executors have the same right to compel the residuary legatees to refund as the creditors would have ; and this right can be exercised even against a married woman whose Mamed 1 1- n-i i-T-'Aj. woman only property, at the time of action brought, is subject to j-estrained restraint on anticipation, (m) The executors will lose the from anticipa- right now under consideration, if they hand over the assets with notice of debts unpaid ; but not if they have only NoUce of un- notice of a mere liability which subsequently ripens into a ^ debt, (v) The executors or administrators cannot in general, even in those cases in which they are entitled to call upon the legatee to refund, make him liable for any interest or Interest. income on the moneys refunded, (to) If part of funds in Court have been paid out to persons Part of funds beneficially interested in the estate, a creditor seeking to follow the assets will only be entitled to be paid out of the funds remaining in Court a just proportion of his debt. Thus if the residuary estate of a testator be divisible into fourths, and three-fourths have been paid out, the other fourth remaining in Court in consequence of the infancy of the person entitled, the creditor will only be paid one-fourth of his debt out of this fourth share ; but he will have liberty to apply as against the persons who have received the other three-fourths, with the view of compelling them to refund, (x) Executors who have overpaid some of the residuary Overpaying legatees are liable to make good to the other legatees the " amount overpaid ; {y) but not if the insufficiency of the jjgpredation of (r) Clegg v. Rowland, 3 Eq. 374 ; Be Bowden, 45 Ch. D. 444 ; Hunter v. ^ui^is. Young, 4 Ex. D. 256. (s) Blake v. Gale, 32 Ch. Div. 571. (0 Jervis v. WuJferstan, 18 Eq. 26 ; Hohbs v. Wayet, 36 Ch. D. 258. (m) Wliittaker v. Kershaw, 45 Ch. Div. 320. (i>) lb., see p. 326. Iw) Jervis v. Wolferstan, supra ; see also 22 & 23 Vict. c. 35, ss. 27 and 28. (a;) Gillespie v. Alexajider, 3 Russ. 139; Davies v. Nicolson, 2 D. & J. 693; Ashley v. A., 4 Ch. Div. 757. (y) Hilliard v. Fulford, 4 Ch. D. 389. 214 ADMINI8TEA TION. Liability of plaintiff I'esiduaiy legatee to refund. Duty of repre' sentative to take care of testator's estate. Estate stolen. Improper investment. Depositing assets with agent. Omission to invest assets. Power f f investment. assets to make a just distribution among all only arises from subsequent depreciation, (z) The executors cannot, in either case, compel the overpaid legatees to refund for the purpose of adjusting the rights of the other legatees, (a) But any future interest to which the overpaid legatees may be entitled under the will ought to bo applied in recouping those who have been underpaid. (6) When it appears, on taking the accounts in an action for administration at the suit of a residuary legatee, that the plaintiff has been overpaid before action, the Court has jurisdiction to compel him to refund the amount by which he has been so overpaid, (c) An executor or administrator is only bound to take the same care of the estate of his testator or intestate as a person of ordinary prudence would take of his own property ; so that if any part thereof be stolen from him or from his own servant or any person to whom he has properly (d) delivered it, he is not responsible. But this rule would not justify an executor or administrator, any more than it would a trustee, in investing money on an unauthorised investment, or unnecessarily de- positing the estate with a co-executor or co-administrator or any other agent, or unnecessarily enabling the latter to obtain sole possession of money belonging to the estate, (e) If an executor or administrator omit to sell property when it ought to be sold, and it be afterwards lost without any fault of his, or if he leave money due upon personal security, which though good at the time, afterwards fails, he is liable to make good the loss thereby sustained. The power of an executor or administrator as to invest- ments is now regulated by the Trustee Act, 1893, repealing the Trust Investment Act, 1889, except ss. 1 and 7, (/) but the powers given by this Act are liable to be controlled by the provisions of the will of the deceased. By the Trustee (2) Re Bacon, 42 Oh. D. 559 ; Re Winslow, 45 Ch. D. 253 ; Peteison v. P., 3 Eq. 111. (a) Ih., Re Lepine, 1 Ch. (92) 216. (b) Doiones v. Bullock, 25 B. 62 ; Livesey v. L., 3 Kuss. 287. In Harris v. H., 29 B. 110, Lord Romilly, M.R., compelled a beneficiary who had been overpaid by mistake to make good the overpayment to the other beneficiaries. (c) Prowse V. Spurgin, 5 Eq. 99. (d) Jobson V. Palmer, 1 Ch. (93) 71. (e) Speight v. Gaunt, 9 App. 19; Be Brogden, 3S Ch. Div. 553;' Be Gasquoine, 1 Ch. (94) 476. (/) See Chap. II. on Trusts, supra, pp. 42 et seq. ADMINISTRATION. 215 Act, 1893, Amendment Act, 1894 (c. 10), s. 4, " a trustee 57 Vict. (wliicli bj s. 50 of the Act of 1893 includes a personal ^'^' -^' *" representative for this purpose) shall not bo liable for breach of trust by reason only of his continuing to hold an invest- ment which has ceased to be an investment authorised by the instrument of trust or by the general law." If an executor or administrator refuses to plead the When Statute of Limitations after judgment for administration, ^'^^^^lllj*"^' '^l^^^ a creditor, legatee, or cestui que trust may do so as against the statute of debt or claim of any person other than the plaintiff, {g) Limitations. When, however, there has been no judgment or order for administration, the executor or administrator may pay a debt barred by the Statute of Limitations without being guilty of a devastavit ; (K) but he may not make such a payment after it has been judicially declared by a Court of competent jurisdiction that the debt has been barred by the Statute. It is at least doubtful whether an executor may pay the Effect of one debt against the declared wish of his co-executor. If one of gjecytors them pleads the Statute, and the other refuses so to do, the pleading. Court will accept the defence of the Statute as being most for the benefit of the estate. (^■) In a recent case where a Direction of residuary legatee insisted upon the executors pleading the g^^^^^^g^. Statute, the latter took out an originating summons for the costs. purpose of obtaining the direction of the Court on the question ; and it was held that it was their duty to plead the same, and that they were entitled to their costs of the application, (j") The rule above stated is different as regards real estate. Rule as to real If trustees should in such case set up, to the prejudice of ^^*'''*®* their cestui que trust, a title which has been extinguished by the Eeal Property Limitation Acts, they would be guilty of a breach of trust ; (k) and an executor or administrator would Statute of commit a devastavit if he were to pay a debt which the Statute of Frauds renders incapable of being enforced. (T) An executor, administrator, or trustee is liable in equity Wilful default. (g) Ex parte Dewdney, 15 Ves. 498 ; Adams v. Waller, 35 L. J., Ch. 727. Lowis V. Eiimney, 4 Eq. 451 ; Alston v. Trollope, 2 Eq. 205. Qi) Be Baker, 44 Ch. Div. 270 ; Midcjley v. M., 3 Ch. (93) 282. (i) Midgley v. M., supra; Asthury v. A., 2 Ch. (98) 111. (j) Be Wenham, 3 Ch. (92) 59. (/<;) 8 & 4 Will. 4, c. 27, s. 34 ; Be Alison, 11 Ch. Div. 297. (l) Be Boicnson, 29 Ch. Div. 358. For the same reason he cannot Retainer, retain such a debt to himself, ih. 216 ABMINISTRA TION. Securities not required for debts, etc. Delay in proving will. Onus pro^jundi. Insolvency of agent. Evidence of wilful default, When assets must be converted within a year. for estate whicli is lost through his wilful default ; (m) c.ff., if the amount of a debt is lost by reason of his delay in suing the debtor, and of the latter becoming bankrupt in the meantime, or of his thereby becoming able successfully to plead the Statute of Limitations. But it is no part of the duty of an executor, as such, to realize mortgage securities not required for the payment of his testator's funeral and testamentary expenses, debts or legacies; and if he should fail to realize such securities, he would not thereby be guilty of a devastavit. Qma) Moreover a person who has been appointed and has acted as executor, is not necessarily liable to be charged on the footing of wilful default merely by reason of his delay in proving the will. (?nfe) The onus of proving a case of wilful default is upon the party alleging it ; (k) but if a legatee, cestui que trust, or ci'editor should prove a prima facie case of breach of duty on the part of the executor, administrator, or trustee by his delaying to sue for a debt, the onus would be on the latter to show that it woxdd have been useless to sue, having regard to the poverty of the debtor or otherwise ; (o) and if he discharge this onus, he will not be liable. The executor or administrator will not, however, be responsible for a loss accruing to the estate by the insolvency of an agent, if the case be a proper one for the employment of an agent — e.g., to collect numerous small book debts, (p) An account on the footing of wilful default will not be directed until evidence shall have been given of at least one instance of wilful default. (5) Tliere is no fixed rule that the assets shall be converted or unauthorised securities called in by the end of a year from the death of a testator ; but if they be not, the onus will, subject to the provisions of s. 4 of the Trustee Act, 1894, above referred to, be thrown upon the executors, to justify the delay, or to show that they bond fide exercised Acts before probate : — executor de son tort. (m) Grayhurn v. Clarhson, 3 Cli. 607. (ma) Re Chapman, 2 Ch. (96) 773 ; and see supra, p. 165. {7nh) Be Stevens, 1 Ch. (98) 162, C. A. See S. C. 1 Ch. (97) 422, as to the acts which an executor may perform before probate ; and as to the acts which constitute a person executor de son tort, A. G. V. New York Breweries Co., 1 Q. B. (98) 205, C. A. (n) Re Brier, 26 Ch. Div. 244 ; Re Owens, 47 L. T. 61. (o) Re Brocjden, 38 Ch. Div. 573 ; Re Roberta, 76 L. T. 483, C. A. (p) Re Brier, 26 Ch. Div. 238. (g) Re Youngs, 30 Ch. Div. 432 ; Be Stevens, 1 Ch. (98) 162, C. A. ADMINISTRA TIOU. 217 a reasonable discretion. (>•) If, however, a testator give his executor an ahsolnte discretion to postpone the conversion, Discretion as the latter will not, in absence of mala fides, be liable for loss *° conversion, arising from non-conversion, (s) When an executor or administrator has admitted assets Effect of for payment of debts or legacies, he becomes personally "'''"'^■^'"g liable for their payment to the creditors or legatees. The admission may be either express or constructive — e.g., by Constructive paying a legacy, the executor prima facie admits assets for admission, the payment of debts ; (^) because debts are payable in priority to legacies, and by paying some legacies, he admits assets for the payment of the others. As a rule, any act of an executor or administrator which implies conclusively that he has, or ought to have sufficient estate to meet any particular demand, is construed as an admission of assets for that purpose ; but he is, in general, allowed to show that Admission by the act relied upon was done by mistake and is, therefore, mistake, not binding upon him. Before the passing of Lord St. Leonards' Act, 1859 (c. 35), 22 & 23 Vict. an executor or administrator who, without the direction of ^- ^^• the Court, distributed the personal estate among the residuary legatees or next of kin, became personally liable to creditors whose debts remained unpaid. The result very often was that, the only safe course was to have the estate administered by the Court, in which case the executor or Effect of administrator was completely indemnified if he acted in '' ^""^nl'^ ^°° accordance with the directions of the Court, and was not guilty of improper concealment of any matters relating to the estate. The administration of an estate by the Court still aifords the same protection to the personal representatives ; and the like rule applies to trustees where the trust is carried into execution under the direction of the Court. Now by s. 29 Advertise- of the last-mentioned Act an executor or administrator is ™'^"!^^ ^°^ free from all liability in respect of debts or claims of which, (r) Grayhurny. ClarJcson, 3 Ch. 606 (non-conversion of shares in a limited company). (s) Re Marsden, 5 Ch. Div. 598 ; Eiddingh v. Denyssen, 12 App. 624 ; Be Norrington, 13 Ch. Div. 654 ; Be Johnson, W. N. (86) 72. In Evans v. Davies, 2 Ch. (93) 216, Kekewich, J., made an order under jnterlociitory O. 50, r. 2, for the sale of shares in a limited company, as coming within ^,^^^1- f^y. g^le the words, " any goods, wares or mercliandise, which, for any just and ^f company sufficient reason, it may be desirable to have sold at once." shares 50 (0 Be Brogden, 38 Ch. Div. 569. r. 2. ' ' 218 ABMINISTRA TIO N. Danger to assets ; — insolvency or bad character of executor, etc. Paramount right of creditor. at the time of the distribution of the estate he had no notice, if he shall previously have given the like notices by advertisement for creditors and others to send to him claims against the estate, as would have been given by the Court in an administration action, (w) But the section preserves the right of the creditor or other claimant to follow the assets into the hands of the person who may have received them. If the estate of a testator or intestate is in danger of being lost by the insolvency of the executor or administrator, the Court may grant an injunction to restrain him from receiving or intermeddling with the estate, and for the appointment of a receiver, (y) It has been held that the rule is other- wise where a testator has knowingly appointed an insolvent person to be his executor or trustee, (w) In the case cited the appointment of the receiver was sought by beneficiaries ; but the principle there laid down would not apply when the appointment against the insolvent is asked for by creditors, whose right to be paid their debts is paramount. The mere fact that the personal representative is in poor circumstances is not sufiicient to induce the Court to take the administration out of his hands ; but the case is otherwise if he be also of bad character or drunken habits, (x) (u) See also ss. 27 and 28 ; Be Bruchen, 43 Ch. Div. 1 ; Be Bowden, 45 Ch. D. 444. (v) Mansfield v. Sliaw, 3 Madd. 100 ; Be Hopkins, 19 Ch. Div. 61. (w) Stainton v. Carron Co., 18 B. 146. (x) Everett v. Prythergch, 12 Sim. 367. MARRIED WOMEN'S PROPERTY ACTS. 219 CHAPTEK IX. MARRIED WOMEN ; — MARRIED WOMEN's PROPERTY ACTS. The law in relation to the property of married women has Alteration in been materially altered by the Married Women's Property ^ '^^' Acts now in force, namely by the Married Women's Property Act 1882 (c. 75, amended, as to s. 16 thereof, by the Married Women's Property Act 1884, c. 14, and repealing the Married Women's Property Acts 1870 (a) and 1874) and the Married Women's Property Act 1893 (c. 63). The Act of 1882 came into operation on the 1st January, 1883, and that of 1893 on the 5th December in that year. Section I. — Equitable Jurisdiction in relation to the property of Married Women independently of Statute. According to the old and stern rules of Common Law, a Husband's husband became, by the act of marriage, entitled to manage lights at and receive the rents and profits of all his wife's lands of inheritance in possession during the joint lives of himself and the wife ; and if he survived her, having had issue by her who might have inherited the property, he had the like rights, as tenant by curtesy, for the remainder of his life. He also became absolutely entitled to the whole of the wife's personal property other than leaseholds ; (&) and such property was, during the joint lives, at his sole and absolute disposal — i.e. provided he reduced the same into possession. If he failed so to do, and died in his wife's lifetime, it belonged to her by survivorship ; but if the wife died in his lifetime, and before he obtained possession, e.g. in the case of a cliose in action, he was entitled to recover the same, on taking out administration to her. A like principle applied where a fund was given to a Wife's life interests. (a) C. 93. This Act came into operation on the 9th August, 1870. As to the effect of s. 7 thereof, sec Be Davies, 2 Ch, (97) 204, and as to s. 8 '■^'^ ^^^' Johnson v. J., 35 Oh. D. 345. (b) Be Butler, 38 Ch. Div. 286 220 MARRIED WOMEN. Wife's lease- holds. Reversionary interests in personal 2)roperty. Wife's equity to a settle- ment. married woman for her life, tut not settled to her separate use, except that the husband could only have disposed of STXch interest during the joint lives. The interest to which the vpife was entitled contingently on her surviving her husband was considered as reversionary, (c) The law was somewhat different in the case of the wife's leasehold interests. The husband was entitled to manage and receive the rents and profits thereof during the joint lives. He could dispose of such leaseholds absolutely or other- wise by act inter vivos, and without any consent on the wife's part, and either by way of sale or by mortgage ; and they were liable to be taken in execution for his debts. His marital right did not, however, entitle him to dispose of them by will ; and in case he died in the wife's lifetime, without having disposed thereof, they belonged to her by survivorship, (d) A husband and wife could not, before the passing of the Act 20 & 21 Vic. c. 57 (commonly called Malins' Act), nor could either of them, make an assignment of the vrife's reversionary choses in action, whether legal or equitable, (if the same were not settled to her separate use) which would be effectual under all circumstances. Suppose that the wife were entitled, on the death of A., a living person, to a sum of stock standing in the names of trustees, and that her husband made an assignment of this reversionary interest to a purchaser. According to the rules stated above the assign- ment would be effectual if the wife were to die first ; but the purchaser would lose his purchase, if the husband died first ; because the wife would be entitled to the fund by survivor- ship. If A. were to die first, the purchaser might obtain a transfer of the fund, if the trustees were willing to make such transfer to him, and if the wife took no proceedings to enforce her equity to a settlement. But if the trustees refused to transfer without the direction of the Court, and the wife insisted upon her equity to a settlement, the pur- chaser would, in general, only have obtained half of the fund, (e) The wife's equity to a settlement was the right which a wife had to compel her husband to make a settlement on (c) Stiff V. Everitt, 1 M. & Cr. 37; Barley v. H., 10 Ha. 329. (fi) Clark V. Burcjh, 2 Coll. 221. (e) See Williams on Personal Property, 468 ; CaMll v. C, 8 App. 420 ; GreenUll v. North, etc. Co., 3 Ch. (93) 474; Uarle v. Jarman, 2 Ch. (95) 119 ; Whittle v. Rennincj, 2 Ph. 731, cited infra. EQUITABLE JUBISDIGTION. 221 herself and children out of such equitable interests as her husband took in her right. The Common Law purported to give to the husband the above-mentioned rights in his wife's property in consideration of the obligation which he assumed on marriage, to maintain his wife, and her children by him ; but it provided no means of ensuring the performance by the husband of the duties thus imposed upon him. When the husband required the assistance of the Court of Chancery for the purpose of reducing the wife's property into possession, e.g. in the case of a legacy, or the residue, or a share of the residue of the estate of a deceased person, then the Court acting upon the maxim that " be who seeks Equity must do Equity " refused to assist the husband except upon the terms of his making a proper settlement on his wife and her children out of the property in question. In the course of time the wife was allowed actively to enforce her right against the husband, or in the event of his bankruptcy, against his assignee or trustee, and with the exceptions mentioned below even against a purchaser for value from the husband. The husband when he was solvent was in general allowed to have paid or transferred to him a moiety of the fund ; and the other moiety was settled on the wife and her children; but the proportion to be settled was in the discretion of the Court, and varied according to circum- stances, (jf) The whole fund would in general be settled if the husband was bankrupt, or guilty of gross misconduct, Qi) or if his wife and family were in necessitous circumstances, and he was unable properly to support them. (^) The like rules applied in determining the amount or proportion to be settled in cases where the wife had a life interest only in the property in question, (ia) There was, however, a dis- tinction in respect of such an interest between the case of an assignee or trustee in bankruptcy on the one hand, and that of a particular assignee or purchaser from the husband, on the other hand. In the latter case, the wife had no equity to a settlement, except in cases where the husband had deserted her, or was unable properly to support her and her (g) See Widgery v. Tepper, 5 Ch. D. 521 ; 7 Ch. Div. 425 ; Elibanlc v, MontoUeu, 5 Yes. 737 ; Walsh v. Wason, 8 Ch. 482 ; Be Briant, 39 Ch. D. 471. (ft) Beid V. B., 33 Ch. Div. 220. (0 Boberts v. Cooper, 2 Ch. (91) 335. (ia) Taunton v. Morris, 11 Ch. Div. 779, 222 MARRIED WOMEN. Husband refusing to make a settlement. 20 & 21 Vic. c. 57. Married woman' may dispose of reversionary intertests in personTil estate, &c. Restraint on anticipation ; — marriage settlement. Allcard v. Walker ;— " future or reversionary interest." children. (iV) The law is still the same in these respects in cases not coming within the provisions of the Married Women's Property Acts. When the husband refuses to make or execute a settlement out of funds in Court, the usual course is to direct those funds to be carried over to the joint account of the husband and wife ; and if the husband and wife continue to live together, and there is no reason for their living apart, to direct the income to be paid to the husband, with liberty, on the death of either of them, for the survivor to apply to the Court, (n) If however the husband has deserted the wife, the income will, in general, be ordered to be paid to her during the desertion. By the Act above mentioned, 20 & 21 Vic. c. 57, every married woman may after the 31st December, 1857, "by deed dispose of every futureor 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 Slst day of December, 1857 (except such a settlement as after mentioned), and also 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, and also release and ex- tinguish her right or equity to a settlement out of any personal estate to which she or her husband in her right may be entitled in possession under any such instrument as aforesaid." The deed must be acknowledged and otherwise perfected in the manner prescribed by the Fines and Eecoveries Act, 1833 (c. 74), as varied by the Conveyancing Act, 1882 (c. 39) s. 7 ; but the Act does not apply where the property is subject to a restraint on anticipation, nor does it enable a married woman to dispose of any interest in personal estate settled upon her by any settlement or agreement for a settle- ment made on the occasion of her marriage, (y) It was recently held by Stirling, J., in Allcard v. Walher, (ja) that the words " every future or reversionary interest " comprise only interests to which a married woman (i b) Elliott V. Cordell, 5 Madd. 149. (m) Atcheson v. A., 11 B. 485. (i) Upon the question when a title will be deemed to have been acquired after 1857, e.g., where there are more instruments than one, see Be Elcom, 1 Ch. (94) 303; Ee Bennett, 73 L. T. 17 ; as to the efifect of the Act generally, see Roberts v. Cooper, 2 Ch. (91) 335 ; Witherby \. Backham, 60 L. J. Ch. 511 ; Re Hodson, 2 Ch. (94) 421. (ja) 2 Ch. (96) 380. EQUITABLE JURISDICTION. 223 has, at the date of the disposing deed, some existing title at Law or in Equity, e.g., a legacy which has become vested, though not then payable ; and do not apply to mere possi- bilities or expectancies of interests, e.g., her expectancy in property to which she would be entitled under the will, or as one of the statutory next of kin of a living person. It was held by the Court of Appeal in Miller v. Collins, (jh) Miller v. that a married woman's equitable reversionary life interest £° 'T^, •■■ •' tines and Ke- in a sum of money, properly invested by her trustees, before coveries Act, 1883, upon a mort2;aa:e of real estate, is an " estate in land " ^^^'■^ ! — . . " estate within s. 77 of the Fines and Recoveries Act, 1833 (c. 74), BO that she can dispose thereof by deed acknowledged, and with her husband's concurrence. But in the above men- tioned case of Allcard v. Walker, Stirling, J., decided that the case was otherwise, so far as relates to the mere possibility or expectation that an estate or interest might accrue to her at a future time, in the event of some person dying intestate. The doctrines of the Court of Chancery in relation to the Wife's separate wife's separate estate would appear to have been an off- ^* ^ ^' shoot of those in relation to trusts. When that Court had triumphed over the opposition of the Courts of Common Law to the establishment of trusts, the scheme obviously suggested itself of vesting property in trustees, on the occasion of marriage or otherwise, for the benefit of the wife, for her separate use independently of her husband. The separate use was, no doubt, in the first instance, the result of express contract before marriage. The next step was to leave or give property by will or otherwise to trustees, upon trust for a married woman, for her separate use ; and in the course of time it was held to be not even essential that trustees should be interposed ; because if there were no trustees the Court converted the husband himself into a trustee for the wife, in order to give effect to the intention of the testator or donor, (k) No particular form of words was essential in an instru- Words bjf ment of trust coming; into operation before 1883 to create a ^'^'ch separate separate use, but there must nave appeared therein an created. intention to give the wife such an interest in the property as to exclude the marital right. (/) The ordinary form of (Jb) 1 Ch. (96) 573. (fe) Neivlands v. Paynter, 4 M. & Cr. 408 (leaseholds and chattels per- Bonal) ; Wricjht v. W., 2 J. & H. 647 ; and see sujpra, p. 39. (0 Massy v. Bowen, L. R. 4 H. L. 288 ; Bland v. Daims, 17 Ch. D. 794. 224 MABBIED WOMEN. words used to be " for her sole and separate use, in- dependently of her husband, A. B. ; " or, " independently of the said A. B., or any future husband ; " 01% " for her sole and separate use." The usual form in more recent times has been, and is now, " for her separate use " only. Where one of the two last forms was used, it applied, and it still applies, to a future as well as an existing coverture, (m) So also where property was given to or in trust for a married woman, and the instrument provided that her receipt alone should be a sufiScient discharge, or where the gift was expressed to be " for her livelihood ; " (n) or, " for her own use and benefit, independently of any other person ; " (0) or, " for her sole use, benefit, and disposition ; " or, " free from the debts and control of her husband ; " or where it was simply declared " that the husband should have no control over the property ; " (jp) in all these cases it was held that a separate use was created. But the words " for her sole use " did not of themselves have that efiect. {q) Restraint on It was soon held that the separate property was liable to anticipation, satisfy the engagements or quasi debts of a married woman, if she so contracted as to show an intention to bind the same, (r) Moreover, the separate use clause did not afibrd an adequate protection against the persuasion or undue in- fluence of the husband. To guard against these supposed defects, a new scheme was adopted in the time of Lord Thurlow, namely, to insert in the instrument creating the separate use what was called a restraint on anticipation, that is to say, a provision to the effect that the wife should not have power to dispose of the capital or corpus of the property, or to anticipate the income thereof, before it should become due. This addition to the separate use clause was held to be good, and not open to the objection of repugnancy. The effect thereof was that the trustees were not only entitled, but bound to disregard any attempted disposition made by the married woman, with the view of depriving herself of the benefit of the trust, (ra) It afforded (jrC\ Eawhes v. Huhhach, 11 Eq. 5 ; King v. Lucas, 23 Ch. Div. 713. (n) Darley v. D., 3 Atk. 399 ; but see Austin v. A., 4 Ch. D. 236. (0) Margetts v. Barringer, 7 Sim. 482. ( p) Edwards v. Jones, 14 W. E. 815. Co) Massy v. Rowen, supra. (r) Hulme v. Tennant, 1 Bro. C. C. 15 ; 1 Wh. & Tu. L. C. Eq, 654. (ra) Bateman v. Faher, 1 Ch. (98) 144, C. A. EQUITABLE JURISDICTION. 225 to a married woman the highest security known to the law, that, come what might to herself or her husband, she should periodically have some money paid into her own hands, to supply her with maintenance, or to izicrease her comforts. (r&) No particular form of words was required in order to Words by restrain anticipation, so long as the intention so to do clearly Nation t\\\hQ appeared. The most usual form of words, and in fact the restrained. most proper words, are simply " without power of anticipa- tion," or, added to the separate use clause, " for her separate use, without power of anticipation." Sometimes the words were " so that she shall not have power to deprive herself of the benefit thereof by anticipation," or, " so that she shall not have power to sell, charge, mortgage, or incumber the same," or, " upon trust to pay the same (income), but hot by way of anticipation, into the proper hands of the said C. B. for her separate use." The restraint on anticipation was a mere accessory to the When separate separate use ; and a gift to the separate use of a married "^^ implied woman would not formerly have been implied from the ^^^ ^^^ ^^^^ ' mere existence of a restraint on anticipation, (s) The case is otherwise where the restraint is contained in a settlement executed since the Act of 1882 ; for the separate use is thereby implied by the Act itself, (ss) When there was no restraint on anticipation, a married Power to dis- woman had, and she still has, the same power of disposition Pose of separate over her separate property, whether real or personal, as she reversionary would have had, if she had been a feme sole, (t) This rule i^iterests. applied to reversionary interests, as well as to interests in possession, (it) Where there is a separate use declared independently of Effect of a wife's present or any future husband, or in favour of a ^^P^^*'^ "^^ spinster independently ol any husband whom she may when woman afterwards marry, and with a restraint on anticipation, the '^ ^°^^" result is that during widowhood or spinsterhood, her power of alienation is just the same as a man would have under like circumstances ; but if she afterwards marry, without in any way dealing with the separate property, the separate (rh) Be Vardon, 31 Ch. Div. 280. (s) Stogdon v. Lee, 1 Q. B. (91) 661, C. A. (s8) Ee Lumley, 2 Ch. (96) 690, C. A. (0 Taylor v. Meads. 4 D. J. & S. 597. (w) Stamford, etc. Co. v. Ball, 4 D. F. & J. 310 ; King v. Lucas, 23 Ch. Div. 712 ; and see Be Davenfort, cited infra. Q 226 MARBIED WOMEN. Restraint on anticipation applicable to capital. Savings. Receipt by husband of separate income. Common Law liability for wife's debts. Liability of wife's property in Equity. Gift to husband. use will take effect, and with it the restraint on anticipation, so that she will then become incapable of selling or dis- posing of the property, (v) This rule is somewhat qualified by s. 2 of the Act of 1893, set forth below, (w) When property, whether real or personal, is given for the separate use of a married woman absolutely, but with a restriction on anticipation, she will not as a rule be entitled to dispose of the corpus or capital ; but if a fund is bequeathed to her in reversion, with such a restriction, it may be a question of construction whether or not the restriction is intended to apply so long only as her title continues to be reversionary, (x) The savings of a married woman's separate estate, are also separate estate, (jj) "When a wife authorises or tacitly permits her husband to receive the income of her separate estate, and to apply the same for general family purposes, she cannot afterwards call upon him to reimburse the amounts received by him. (z) Where, however, a husband forcibly took the amount of a legacy bequeathed to his wife, and kept it up to the time of his death, it was held that his estate was liable to repay the amount, with interest at 4 per cent, from the time of his death, and that the Statute of Limitations afforded no defence, (zz) By the Common Law a married woman could not, without her husband's consent, enter into any contract which would bind either herself or him. If a contract were made by her with her husband's authority, the contract was Ms contract ; and he alone was liable thereunder ; if made without his authority, neither husband nor wife could be sued in respect thereof. In Equity, however, the case was different, as already stated, if the wife had separate property not subject to any restraint on anticipation. Though the Court of iv) Stroud V. Edwards, 11 L. T. 280, C. A. (w) See also s. 19 of the Act of 1882, infra. {x) Be lippett, 37 Ch. Div. 444 ; Be Carrey, 32 Ch. D. 361 ; Be Spencer, 30 ih. 183. See supra, p. 163. (y) Duncan v. Cashin, L. R. 10 C. P. 554. (z) Caton V. Bideout, 1 M. & G. 599; Dixon v. D., 9 Ch. D. 587; but as to the onus of proving a gift to a deceased husband of separate estate of the wife received by him, and the right of the wife to prove agaiust his estate after his death, if this onus be not discharged, see Be Flamank, 40 Ch. D. 461 ; Edivard v. Cheyne, 13 App. 385; and as to loans by a wife to her husband, etc., see s. 3 of the Act of 18S2,infra. (zz) Wassell v. Leggalt, 1 Ch. (96) 554. 1 EQUITABLY JURISDICTION. 227 Chancery -woulcl not make a personal decree against a married woman for the payment of a sum of money, yet if ^f^j^^.°^„ j^ she entered into an engagement to pay with the intention, whether express or implied, of binding her separate estate, that engagement could be enforced by filing a bill against the wife, her husband, and the trustees in whom the separate estate was vested, for the purpose of compelling the trustees to satisfy the obligation, and pay the costs of suit out of the wife's personal estate, and the income of her real estate, (a) The creditors had a corresponding right against the separate property, after the wife's death. The general engagements of a married woman did not. Injunction nor do they now create charges on her separate estate ; and therefore a creditor had no right to obtain, in respect thereof, an injunction to restrain her from parting with her separate property before judgment; nor has he any such right since the passing of the Married Women's Property Acts, (c) A married woman had, strictly speaking, no debts or liabilities at all before the Acts ; but those engagements those results of quasi contract — which would have had the effect of creating debts or liabilities in the case of a man, only created a liability to have the same dischai'ged out of her separate property, (d?) There would appear to be no difference in this respect since the passing of the Acts, though the words debts and liabilities are used therein, (e) The creditor or quasi creditor had, however, no remedy under the old rule in Equity, if the separate estate was subject to a restraint on anticipation. (/) This rule has been slightly modified by s. 19 of the Act of 1882 and s. 2 of the Act of 1893 set forth below. Section IL—The Acts of 1882 and 1893. (1) A married woman shall, in accordance with the Act of 1882, provisions of this Act, be capable of acquiring, holding, and ^ ^- . , , , disposing by will or otherwise, oi any real or personal property and (a) Hulme v. Tennant, 1 Bro. C. C. 16; 1 Wli, & Tu. L. C. Eq. 6.54.; *° ^°^*^"^'=*- London, etc. Bk. v. Lempriere, L. E. 4 P. 0- 572; Re Lumley, 3 Ch. (94) 135. (c) Robinson v. Pickering, 16 Ch. Div. 660. (cf.) Re Ann, 1 Ch. (94) 554. (e) See s. 4 of the Act of 1882, infra. if) Whittaker v. Kershaw, 45 Ch. Div. 327 228 MARRIED WOMEN. Separate trading;— bankruptcy. Act of 1893, (c. 63) s. 1, Effect of contracts. Act of 1882, s 2. Woman married after Act. Power of husband and wife to contract. .Joiftt tenancy, &c. ; — severance. property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. (2) A married woman shall be capable of entering into, and rendering herself liable in respect of and to the extent of her separate property on any contract, (ff) and of suing and being sued, cither in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or otlier legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property ; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise. (]i) Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a feme «nle. (i) Every contract hereafter entered into by a married woman, otherwise than as agent, (a) shall be deemed to be a contract entered into by her with respect to and to bind her separate property, whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract ; (b) shall bind all separate property which she may at that time or there- after be possessed of or entitled to ; and (c) shall also be enforceable by process of law against all property which she may thereafter while discovert be possessed of or entitled to ; provided that nothing in this section con- tained shall render available to satisfy any liability or obligation arising out of such contract any separate pro- perty which at that time or thereafter she is restrained from anticipating. Every woman who marries after the commencement of this Act shall be entitled to have and to hold as her separate property, and to dispose of in manner aforesaid all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money and pro- perty, gained or acquired by her in any employment, trade, {(f) As to the power of husband and wife to contract with each other, see McGregor v. M., 21 Q. B. Div. 424. As to the effect of the Act of 1882 upon a gift to husband a,nd wife in terras which would have made them joint tenants or tenants in common, if unmarried, see Re March, 27 Ch. Div. 1(J7; lie Vixon, i2 Ch. D. 30G; Thornley v. T., 2 Ch. (93) 229. Upon the question of sev(;;rance, see Palmer v. Rich, 1 Ch. (97) 134. (h) Sub-ss. 3 and 4 are repealed by tlie Act of 1893. (i) Re Armstronfj, 21 Q. B. Div. 2G4 ; Re Dagnall, 2 Q. B. (9G) 407 ; Re a Debtor, 4G W. R. G75. THE ACTS OF 1882 AND 1893. 229 or occupation, in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill. Any money or other estate of the -wife lent or entrusted S. 3. Loans by her to her husband for the purpose of any trade or ^'7 wife to business carried on by him, or otherwise, shall be treated as •»"'*''^"'l- assets of her husband's estate, in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before, all claims of the other creditors of the husband for valuable consideration in money or money's worth have been satisfied, (j) The execution of a general power by will, by a married s. 4. woman, shall have the effect of making the property Execution of appointed liable for her debts and other liabilities in the g'^'^'^ral power, same manner as her separate estate is made liable under this Act. Every woman married before the commencemeut of this S. 5. Act shall be entitled to have and to hold, and to dispose of Woman in manner aforesaid, as her separate property, all real and "j'^",";!? ^^^^"^^ personal property her title to which, whether vested or con- tingent, and whether in possession, reversion or remainder, shall accrue after the commencement of this Act, including any wages, earnings, money, and property, so gained or acquired by her as aforesaid. S. 17 of the Act gives power to a Judge of the High Court s. 17. of Justice in England or Ireland, and to the Judge of the Decision of County Court in England, and to the Chairman of the Civil proLny. Bill Court in Ireland, to make orders with respect to the title to property, in questions arising between the husband and wife ; but such orders are subject to appeal ; and pro- ceedings in the County Court or Civil Bill Court are liable to be removed into the High Court. A married woman who is an executrix or administratrix, s. 18. alone or jointly with any other person or persons, of the Married estate of any deceased person, or a trustee alone or jointly as woman as an aforesaid of property subject to any trust, may sue or be trustee, sued, and may transfer or join in transferring any such annuity or deposit as aforesaid, (Jc) or any sum forming part of the public stocks or funds, or of any other stocks or funds (j) See Re Genese, 16 Q. B. D. 700 ; Be May, 45 Ch. D. 499 ; Re Tuff,. , 19 Q. B. D. 88 ; Re Leng, 1 Ch. (95) 652 ; Mackintosh v. Fogose, 1 Cli. JT,, ," "l to (95) 505, 0. A. ; Re Qark, 2 Q. B. (98) 330, 0. A. ; and as to the riglit of a "^.jf" husbaucl to sue his wife for the recovery out of her separate estate of loans made by him to her, see Butler v. J5., 16 Q. B. Div. 375. (k) I.e. all annuities granted by the Commissioners for the Keduction of the National Debt, or by any other person, and deposits in a bank ; see s. 6. 230 MARRIED WOMEN. S. 19. Restraint on anticipation ; settlements. Act of 1893 (c. 63), s. 2. Costs ; — restraint on anticipation. Remedies ; Pre-nufilial contracts. " Legal personal represen- tative." Liability for breach of trust, &c. Fraud by feme coverte. Discovery of separate estate. transfcraljle as aforebaid, or any share, stock, debenture, debenture stock, or other benefit, right, claim, or other interest of or in any such corporation, company, public body, or society in that character, without her husband, as if she were a feme sole. Nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation at present attached, or to be hereafter attached to the enjoy- ment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instru- ment ; but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by herself shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement or ageement for a settle- ment made or entered into by a man would have against his creditors, (p) In any action or proceeding now or hereafter instituted by a [married] woman, or by a next friend on her behalf, the Court before which such action or proceeding is pending shall have jurisdiction by judgment or order from time to time to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and may enforce such payment by the appointment of a receiver and the sale of the property, or otherwise as may be just, (q) Section twenty-four of the Wills Act, 1837, shall apply ( j?) As to this section, see Stevens v. Trevor-Garrich, 2 Ch. (93) 307 ; Jay \. Eohinson, 25 Q. B. Div. 467 ; i?e Onflow, 39 Ch. D. 622 ; Ee Arm- s^lrong, 21 Q. B. Div. 264 ; Beckett v. Taslcer, 19 Q. B. D. 12 ; Be Whitaker, 34 Ch. Div. 227. The reader is referred to the Act of 1882 for the provisions of the remaining sections. As to the remedies in respect of a wife's separate estate, given by s. 12 of this Act (explained by 47 Vict. c. 14), see Weldon V. De Bathe, 14 Q. B. Div. 339; as to ss. 13-15 (wife's pre-nupt'al con- tracts), Be Barkin,3 Ch. (92) 519; Jay v. Robinson, 25 Q. B. Div. 467; Robinson v. Lynes, 2 Q. B. (94) 577. As to the meaning of the term " legal personal representative " in s. 23, see Surman v. Whartoii, 1 Q. B. (91) 491. As to the liability of a married woman, or her husband, for breach of trust or devastavit, see supra, p. 64. As to fraud by a married woman, see Sharpe v. Foy, 4 Oh. 35 ; Re Lush, ib. 591 ; Arnold v. Woodhams, 16 Eq. 29 ; Earle v. Jarman, 2 Ch. (95) 424. As to the right to an order for the examination of a married woman as to her separate estate, see Unod-Barrs v. IB dot, 2 Q. B. (96) 338. (2) Compare Cox v. Bennett, 1 Cb (91) 617 before the Act. THE ACTS OF 1882 AND 1893. 231 to the will of a married woman mado during coverturo •^- ^• whether she is or is not possessed of or entitUd to any sepu- ^^'""f'narricd rate property at the time of making it, and such will sliall not require to be re-executed or republished after the death of her husband, (r) Upon the execution by a woman married since the Act of Disentailing 1882, of a disentailing deed, or a deed to enlarge a base fee *^'-''^^' '^'■'^■ into a fee simple absolute, the concurrence of her husband is not necessary, (s) By s. 16 of the Trustee Act 1893 (c. 53) replacing s. 6 Trustee Act, (which is repealed by s. 51), of the Vendors and Purchasers n,:,rrie(i ' Act, 1874 (c. 78), it is enacted that " When any freehold or woman bare copyhold hereditament is vested in a married woman as a trustee. hare trustee, (t) she may convey or surrender it as if she were B, feme sole." It has been observed by Mr. Wolstenholme in the last edition of his excellent Work on this and other recent Statutes, (ii) that the aid of this section can only be required in cases of trust estates devolving on a married woman before 1883. The Author respectfully concurs in this opinion ; but it can only be correct on the assumption that s. 1 of the Act of 1882 applies to real estate which has, since the commence- ment of the Act, become vested in a married woman as trustee. But for the decision of North, J., in a somewhat recent case of JKe HarTcness, (v) the Author would have Real estate thought that the Act applied as well to estates becoming ^"^^jg^"^ vested in a married woman as trustee or mortgagee, as to woman upon those becoming vested in her for her own benefit; (w) and in trust generally ° ^ ^ ' . or as mort- all probability, many titles are based upon this assumption, gagee. In fact it might fairly be supposed that persons dealing with a married woman since the Act, would not necessarily bo concerned to know whether she held beneficially, or in trust. In the recent case of Be BrooJce, (x) it was decided by ji^ iwookc. Kekewich, J., that this is the proper construction of the Act, so far as relates to real estate vested in her by way of mort- (r) As to this section, see, before 1893, Re Price, 28 Ch. D. 709; Re Bowen, 2 Ob. (92) 291 ; since, Re Wylie, 2 Ch. (95) 116. By s. 24 of the Wills Act, 1837, a will is made to speak from the death of the testator. (8) Re Drummond, 1 Ch. (91) .524; Carter v. C, 1 Cii. (90) 62. It) As to " bare trustee," see Re Cunningham, 2 Ch. (91) .')71 ; Christie „ ^^^^.^ V. Ovington, 1 Ch. D. 281; Morgan v. Swanaea U. S. Autharitij,'3 t'-nusiee" 585 ; Re Docwra, 29 ib. 693. (m) p. 11. iv) 2 Ch. (96) 358. (w) Compare Bathe v. Banic of England, 4 K. & J. 564. (a;) 1 Ch. (98) 647. 232 MABRIED WOMEN. gago to secure money belonging to herself, as her separate Ee Harhness. property. But in Be Harhness, above referred to, North, J., held that in order to make an effectual conveyance of real estate held by a married woman upon trust, it was essential that the husband should join in the conveyance, and that such conveyance should be duly acknowledged. This appears to be inconsistent with the provisions of s. 24 pro- viding that the word " contract " is to include the acceptance of a trust by a married woman, extending the provisions of the Act relating to liabilities for breach of trust by her, and absolving her husband from liability, except in cases where he has intermeddled in the trust, (y) It is clear that if the husband were to join with the wife in a conveyance of the trust property, he would lose the protection of this section by reason of his having " intermeddled " in the trust. No doubt s. 1 is not so clearly expressed as it might have been; and the difficulty is increased by the provisions of s. 18, which do not apply to real estate ; but upon com- paring ss. 6-8, (z) it would appear that this section applies to deposits, annuities, stocks, funds, shares, debentures, and other interests in companies or corporations which were standing in the name of a married woman at the com- mencement of the Act, or should afterwards be allotted to or transferred into her name. Future S. 1 of the Act of 1893, like s. 1 sub-s. 4 of that of 1882, property. renders obsolete the decision of the Court of Appeal in Pike V. Fitzgibbon, (s) that a married woman's general engage- ments could only be enforced against separate estate free from restraint on anticipation which belonged to her at the date of the engagements. As the old rule of Equity was founded upon presumed intention, it was held before the Act of 1893 that in order that sub-s. 4 should apply, the married woman must have had some separate property at the time when a contract under the Act was entered into, and also that the onus of proof of this fact was on the plaintiff, (i) This, it will be observed, is altered by s. 1 of the Act of 1893. The words " or otherwise " in s. 1 (2) of the Act of 1882, (y) See supra, p. 64. (z) See also ss. 3-5 of the repealed Act of 1870 (c. 93). (s) 17 Ch. Div. 454. (t) Re Shakespear, 30 Ch. D. 169; Stogdon v. Lee, 1 Q. C. (91) 661. TEE ACTS OF 1882 AND 1893. 233 show that tlie liability of a married woman under that Act Extmt of is not confined to contracts or torts, and that it may exist '"*^'''*y- independently of any intention on her part. (?*) It was held before the Act of 1893 came into operation Restraint on that the property to which a married woman was entitled '''"'''"1'."'"^'' . . . — ili-atli ot subject to a restraint on anticipation did not, on her hus- husbaud — band's death, become subject to debts contracted by her in P'o^fction his lifetime ; (v) and that the fact of her obtaining a pro- tection order in consequence of his desewtion, did not render such property liable to debts contracted afterwards. (?o) Where a married woman has separate property subject to Accrued and a restraint on anticipation, the Act of 1882 enables a judg- f"*"'" 'ncome ment creditor to enforce payment of his debt out of the arrears of income to which the restraint applies which have accrued due before, («) but not out of those which have accrued after the date of the judgment, (xa) S. 2 of the Act of 1893 applies only to litigation initiated " Proceeding by a married woman : and therefore an appeal from a '"^•^i*'*^*'^*^- judgment in an action to which she is defendant, is not a " proceeding instituted " within the meaning of that section, (xh) If a married woman fails to satisfy a judgment debt to No power to which she has been made liable under s. 1 of either of the ""r^'son w'^. two Acts, she cannot be committed to prison under s. 5 of the Debtors Act, 1869 ; (//) nor can a bankruptcy notice be Bankruptcy issued against her in respect of a debt incurred by her in '^o'"^'^- carrying on a trade separately from her husband ; (z) nor can she be made a bankrupt in respect of a trade which is wholly or partially under her husband's control, (a) (u) Whittaker v. Kershaw, 45 Ch. Div. 327. Upon the question what ^ is separate property liable to satisfy the obligations of a married woman, ^P'^i'a'e see Be Peacock, 10 Ch. D. 490 ; Ex parte Gilchrist, 17 Q. B. Div. 521 ; pi'^perty. Beckett V. Tasker, 19 Q. B. D. 7 ; Be Onslow, 39 Ch. D. G22. (v) Pelton V. Harrison, 2 Q. B. (91) 422; and see Bird v. Bargtow, 1 Q. B. (92) 94. (to) Hill V. Cooper, 2 Q. B. (93) 85 ; see also Stoqdon v. Lee, 1 Q. B. (91) 661, C. A. ; Leak v. Driffield, 24 Q. B. D. 98. In the last case the defendant had been married before 1882, at the date of the contract had only property subject to restraint on anticipation, and had afterwards been divorced. (x) Hond-Barrs v. Heriot, A. C. (96) 174. (xa) Whifeley v. Edwards, 2 Q. B. (96) 48. Ixh^ Hood-Barrs v. Heriot, A. C. (97) 177. See also Moran v. Place, P. (96) 214, C. A. (caveat entered in the P. D.) (y) Scott v. Morley, 20 Q. B. Div. 120. (z) Re Lynes, 2 Q. B. (93) 113; Be Hewett, 1 Q. B. (95) 328. (a) Ee Helsby, 63 L. J. Q. B. 261. 234 MARRIED WOMEN. Separation deed. Release of reversionary interest to wife. Property appointed by will. Fraud by married Protection order. Since the Married Women's Property Act, 1882, tlie interpolation of a trustee is not essential to the validity of a sei^aration deed. (6) In a case before Lord Cottenham, (c) a fund in Court was subject to a trust for a husband and wife for their lives successively, with remainder to their son absolutely. The husband and son surrendered and released their respective interests to the wife, for the purpose of giving her an absolute interest, which she was to assign to the son. His Lordship refused to order the fund to be paid out of Court ; but in a recent case before Kekewich, J., (d) where certain funds were to be held in trust to pay the income to a woman married after 1882 for her life, for her separate use, and as to the capital for such persons as she should by will appoint, and in default of appointment for her executors, administra- tors or assigns, it was held that by virtue of ss. 1 and 2 of the Act of 1882, the life interest and the interest in reversion were alike limited to the separate use of the married woman, and that on her releasing her power, she would be absolutely entitled to the fund. Before the Act of 1882, property appointed by a married woman's will in favour of volunteers, whether under a general testamentary power, or a general power to apjioint by deed or will, did not constitute assets to satisfy her general engagements ; (e) unless the obligation had been incurred by means of fraud, e.g., by representing herself to be a single woman. (/) This, it will be observed, has now been altered by s. 4 of that Act ; {g) and it is not essential, in order that this section may apply, that the appointor should have had any separate estate at the time when she entered into the engagement, iji) The section applies to property ajjpointed since the Act by a married woman who has obtained a protection order under the Matrimonial Causes Act, 1857, c. 85 ; and subject to any question arising under the Statute of Limitations, this will be so, even if the Qi) Sweet V. S., 1 Q. B. (95) 12. (c) Whittle V. Uenning, 2 Ph. 731. Id) Re Davenport, 1 Ch. (95) 361. (e) Compare London, etc. Bk. v. Lempriere, L. R. 4 P. C. 594, with Re Hastings, 85 Ch. Div. 100 ; Re Roper, 39 Ch. D. 489 ; and see Hodges v. H., 20 Ch. D. 749 ; also mpra, p. 184. (/) Vaughan v. Vanderstegen, 2 Dr. 363. (g) Re Parkin, 3 Ch. (92) 510. Sec sujtra p. 160. (A) Re Ann. I Ch. (94>549. THE ACTS OF 1882 AND 1893. 235 order has been made, or the debts have been incurred, before the Act of 1882 came into operation, (i) S. 5 of the Act of 1882 is not applicable to the case of a Projierty in married woman entitled at the time when the Act caiuo into J.'^.f^re'Act operation to property in reversion or remainder not settled coming into to her separate use. This was decided by the Court of P"S'*e»s>"n Apjjeal in Meid v. B,., (jo) after a conflict of decisions in the Courts below. The result of this decision is that on a married woman becoming, in such case, and while her hus- band is still living, entitled in possession, either by reason of the death of a tenant for life or otherwise, the property becomes subject both to the marital right, and to her ecjuity to a settlement. But n B,e Parsons, (J) A., a woman married lie Parscms. before 1882, made her will n 1889, without her husband's knowledge, and thereby gave all her property to her two nephews therein named, and appointed the plaintiflf her sole executor. At the date of the will she was entitled to a share of a sum of £1600, as one of an artificial class of persons who would, in the events which had happened, have been the next of kin of a testator, B., if he had died in 1886, though he in fact died in 1879. The surviving hus- band of A. claimed the share, on the ground that the title thereto had accrued before the commencement of the Act of 1882, namely, at the death of the testator in 1879. It was held that up to 1886 A. had only a spes succcssionis in the share, that she had acquired her interest in the share after 1882, namely in 1886, and that it passed by her will, to the exclusion of her husband. Of course a person who would be next of kin of a living person, were he immediately to die, has only a spes successionis during the life of the propositus. This is so, not merely because the' former or his representa- tives will take nothing, if he die before the latter, but because the propositus can, by will or otherwise, create an interest or interests which will defeat the spcs successionis. This cannot happen after the death of the propositus. (It) A married woman suing alone under the Act of 1882, and Security for without either her husband or a next friend, cannot be ordered to find security for costs, though she have no (i) Re E^ighes, 1 Ch. (98) 529, C. A. O'a) 31 Ch. Div. 402; see also Be Johnson, 3 Ch. (01) 48. ij) 45 Ch. D. 51. 00 Sec lie Beaupre, 21 L. R. Jr. 397. 236 MAEEIED WOMEN. Devolution of separate real estate on intestacy ; — curtesy. Personal estate. Conv. Act 1881, s. 39 ;— order binding separate estate. Onus of proving poverty, &c. separate estate or other means of paying, if unsuccessful. (T) But she can he so ordered, if she sue hy a next friend in poor or insolvent circumstances; and proceedings will be stayed until such security be forthcoming, (m) In cases not within the Act of 1882, when a married woman obtains an order to sue without her husband or a next friend, or to defend separately from her husband, the rule as to whether she must give security for costs is the same as in the ordinary cases of security for costs of appeal, that is to say, if it is made to appear that she has no means of paying them, she must give security, (o) The Court has a judicial discretion to direct security for costs in such cases to be given at any time, (p ) Upon the death of a married woman intestate, her real estate will go to her heir subject to the same right to curtesy as it would have been before the passing of the Act of 1882. (q) The separate personal estate of a married woman will now, upon her death, and in absence of any disposition thereof by her, pass, as before the Act of 1882, to her husband in case he should survive her ; (r) but subject to her debts, (s) If the property be in possession, as in the case of bank notes or leaseholds, the husband will be entitled thereto jure mariti ; (€) but as to choses in action, a legal personal representative must first be constituted. If she died intestate, the husband will be entitled to take out administration to her estate. But if she make a will appointing executors, and without having disposed of the beneficial interest, then though those executors will be entitled to prove the will, they must, after payment of her debts, etc., hold the undisposed of surplus in trust for the surviving husband, (u) The High Court has power under s. 39 of the Conveyancing (0 Be Isaac, 30 Ch. Div. 418. (m) Be Thompson, 38 Ch. Div. 317; Wilton v. Eill, 2 D. M. & G. 807; Macann v. Borradaile, 37 L. J. Ch. 124. The onus of proving poverty or insolvency, is upon tlie defendant applying for the security : Giacomitti V. Prodgers, 21 W. R. 282. (o) Brown v. North, 9 Q. B. Div. 52; Noel v. N, 13 Ch. D. 510. (p) Martano v. Mann, 14 Ch. Div. 419. (g) Hope Y.R.,2 Ch. (92) 336. (r) Be Lambert, 39 Ch. D. 626. (s) Surman v. Wharton, 1 Q. B. (91) 491. (0 Ih. (u) Smart v. Tranter, 43 Oh. Div. 587; Be Atkinson, 1 Ch. (98) 637. TEE ACTS OF 1882 AND 1893. 237 Act, 1881 (c. 41), to bind the interest of a married woman in any property notwithstanding the restraint on anticipation, where it appears to "be for her benefit so to do. But it has recently been held by the Court of Appeal in Be Pollard, (v) Extravagance , that the power will not be exercised merely for the purpose — ni""ey of raising money for the payment of debts incurred through her or her husband's extravagance. In this case Chitty, J., said in the Court below, that he would refuse to exercise the power when a married woman had recourse to money-lenders. When a wife's life interest has been made available for Husband's raising money for payment of her husband's debts by means ^'^^*^^J|~J''' of relief, under this section, from the restraint on anticipa- tion, it does not follow as a matter of course, that she has any remedy over against the husband to compel him to indemnify her, or to recoup her separate estate, (w) (v) 2 Ch. (96) 552. As to the circumstances under which the Court ■will, in general, exercise the power given by the section, see Uodges v. U., 20 Ch. D. 749 ; Ee Little, 36 Cb. Div. 701 ; 40 Ch. Div. 418 ; lie Milner, 3 Ch. (91) di7;Be S., W. N. (93) 127; Be Wilson-Stewart, 75 L. T. 381, C. A. ; Re Wheatley, 27 Ch. D. 614, cited mpra, p. 119; Thomson Y. T., P. (96) 271, C. A. ; Paget v. P., 1 Ch. (98) 470, C. A. (w) Faget v. P., supra. ( 238 ) Jurisdiction of Court of Chancery. Property. Infant of un- sound mind. Common Law jurisdiction ; — habeas corpus. Judicature Act, 1873, s. 25 (10). Mother of illegitimate child. CHAPTER X. Infants, (d) Section I. — Jurisdiction^ The Court of Chancery interfered for the protection of infants, qrid infants, by virtue of the prerogative which belonged to the Crown as parens patrise, and the exercise of which was delegated to the Great Seal, (e) It had this jurisdiction whether the infant had property or not, and even where the infant was of unsound mind ; (/) but where the infant had no property the Court could not settle any scheme for his maintenance or education, {g). Since the Judicature Acts, the like jurisdiction has been vested in the Chancery Division. (Ji) Courts of Common Law, before the Judicature Acts, interfered by writ of habeas corpus when a father was wrongfully deprived of the custody of his infant child ; and the High Court still exercises the like jurisdiction. Such interference was part of the jurisdiction from early times exercised for the protection of persons illegally detained ; and if the child was too young to choose for itself, the Court had no jurisdiction to refuse the writ. The like remedy was open to the testamentary guardian, (e) Now by s. 25, sub-s. 10 of the Judicature Act, 1873 (c. 66), it is enacted that " in questions relating to the custody and education of infants, the Eules of Equity shall prevail " in all the {(l) When words importino; the masculine gender only are used in this Chapter, they are to be taken to include the feminine also, when the circumstances admit. (e) Per Lord Cottenham in Be Spence, 2 Ph. 252, approved by Lord Halsburv, L.C., in Barnardo v. Mcnugh, A. C. (91) 395. (/) Be Edwards, 10 Ch. Div. 605. (g) Be McGrath, 1 Ch. (93) 147. (h) See 8. 34 of the Act of 1873 (c. G6). (0 Be Andreivs, L. R. 8 Q. B. 153. As to the rights of a mother of an illegitimate child, see Beg. v. Nash, 10 Q, 13. Div. 454; Barnardo v. McHugh, A. C. (91) 388. BELiaiOUS EDUCATION. 239 .Divisions and Courts ; and accordingly in a recent case, (J) Rt^fusal of the Court of Appeal, on the return to a writ of liahcas corpus '*"'"•''" '•'"■^""'• obtained by the mother, who was the legal guardian of a female infant, aged about fifteen, held that, although the mother had not been guilty of any misconduct to disentitle her to the custody of the child, the Court ought, if satisfied that such a course was essential for the welfare of the child, to refuse to give the mother such custody. Moreover by the Custody of Children Act, 1891 (c. 3), s. 3, "where a ^;"«to(ly of parent has — (a) abandoned or deserted his child ; or (b) ^09^*'° ■'^^'' allowed his child to be brought up by another person at Conduct of that person's expense, or by the guardians of a poor law paruut. union, for such a length of time, and under such circum- stances, as to satisfy the Court that the parent was un- mindful of his parental duties, the Court shall not make an order for the delivery of the child to the parent, unless the parent has satisfied the Court, that having regard to tho welfare of the child, he is a fit person to have the custody of the child ; " and s. 4 gives power to the High Court, upon refusing the application of the parent for the custody, to Religious give special directions as to the religious education of the *" child. Section II. — Bights of Father generally. A father is, during his life, the guardian of his infant Father children by nature and by nurture. (¥) He has a legal right g»:'|''i'''»Dv to control and direct the education and bringing up of the control, children until they attain the age of twenty-one years ; and the Couit will not interfere with him in the exercise of his paternal authority, except (1) where by gross moral turpitude he forfeits his rights; or (2) where he has, by his conduct, abdicated his paternal authority. This rule applies even if the children are wards of Court ; unless the father seeks to remove them out of the jurisdiction, without the sanction of the Court. In a somewhat recent case a father put restrictions on the intercourse between his daughter in her seventeenth year, who was a ward of Court, and her mother, on the plea that he believed the mother would alienate the daughter's affections from him. Tho (i) Req. V. Gyngall, 2 Q. B. (93) 232. (7c) Wdlesley v. D. of Beaufort, 2 Kuss. 21 ; Ite M. of Salisbury, 2 Ch. Div. 31. As to guardians appointed by the Court, sec infra; and as to other guardians, sec Simpson on Infants, 2ud od., pp. 118, 207, et stq. 240 INFANTS. Rcmov.il out of fatlier's custody. Father's religion. Contract by father. Agreement as to liolidays ;— injunction. Separation deed. Agreement as to access to children. Court refused to interfere. (I) But if a sufficiently strong case of misconduct be made out, the Chancery Division has power, indeiiendentlj' of the Act of 1886, treated of "below, to remove the chiklren out of the father's custody, (m) and to appoint some other person or persons to act as guardian or guardians in his place, (n) Section HI. — Bights of Father aa to Religious Education. An infant must be brought up in the religion of the father ; and the rule applies after the father's death even where he has duly appointed as guardian the surviving mother of the infant, and though she was, in her husband's lifetime, of a different religion from his own. A contract made by the father (on marriage or otherwise) to the con- trary, or to exercise in a particular way rights which the law gives him for the benefit of the children is not in general binding upon him, though it may, after his death, be material on the question whether he, in his lifetime, aban- doned his right to have his children educated in his own religion, (o) But in one case an agreement contained in a ■ deed of compromise of proceedings by a wife against her husband in the Divorce Court, to the effect that the infant children of the parties should spend their holidays at such places as the trustees of the deed should direct, was held to be good, and the husband was restrained by injunction from acting in contravention of the agreement, (p) Moreover, by the Custody of Infants Act, 1873 (c. 12), s. 2, "no agreement contained in any separation deed made between the father and mother of an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother ; provided always, that no Ccjurt shall enforce any siich agreement, if the Court shall be of opinion that it will not be for the benefit of the infant or infants to give eflect thereto." {q) (I) Ee Agar-EIlis, 24 Ch. Div. 317. (m) Weliesley v. D. of Beaufort, 2 Kuss. 43 ; Smart v. S., A. C. (92) 425 ; Jle Broivn, 13 Q. B. D. 614 ; Ee Goldsworthy, 2 ih. 75. (« ) Weliesley v. D. of Beaufort, supra ; Ee M. of Salisbury, supra ; Be Neioton, 1 Ch. (9(j) 740 C. A. (o) Andreivs v. Salt, 8 Ch. 622. (p) Hamilton v. Hector, 6 Cb. 701 ; 13 Eq. 511. Upon the construction of an agreement that a wife should have free access to the children, see Hunt V. U., 28 Ch. Div. 606. {q) As to the effect of this section, sec Ee Bemnt, 11 Ch. Div. 508 ; Condon v. Vollum, 57 L. T. 154. In the former case a girl eight years of RELIGIOUS EDUCATION. 241 Where tlie fother of a ward of the Court lias not done any Injunrtlon to act to forfeit his parental rij^hts, (nn) ho is entitled to an »:'^«""'". •'''''' . . '■ . " ' vii/ from licmn injunction to restrain his wife or any other jierson from t:iki-n to a taking his child to a place of worship not approved of by r;"''^^^"'^'" !,• If / \ place of himself, (r) ^ worshi,,. When the infant has no father living, the religion of the Father's father is to be determined as at the time of his death. 'je|i*l|"'!j'^ ^'' Therefore, if there be evidence that the father was a Roman eviaenV*. Catholic at the time of his marriage, declarations made by him subsequently are admissible in evidence to show that ho subsequently became, or that he, at the time of his death, was a Protestant, (s) The law, as stated above, has not been altered by the Effect of Act of Guardianship of Infants Act, 1886 (c. 27);(<) and accord- ^'"^ ^' ingly, although under that Act, a mother who survives the father of her children is now by law their guardian, either alone, when no guardian bus been appointed by the father, « or jointly with any guardian appointed by him, she has no greater powers, as regards the religious education of the children, than those which any guardian appointed by will or otherwise, had at the passing of that Act. (m) If, how- ever, the father has in his lifetime abandoned his rijrht to AUanilonment have his child brought up in his own faith, e.g., where jij^l'^^ a Eoman Catholic father has allowed his child to attend a Protestant school, and the child has been allowed to be brought up as a Protestant, the Court will, until the child shall be able to form an opinion of his own upon the subject, only consider what is for his benefit, (iiu) The Judge will, Child's wishes. in general, if the child is old enough, see him in private with the view of ascertaining his views ; and if in such a case, the infant desires to be brought up a Protestant, the Judge has power to remove a Eoman Catholic guardian, and to appoint a Protestant in his place, and vice versa. Under child's Buch circumstances the Judge will, in considering what is welfare. age was removed from her mother's custody on the ground that tlie Mother's mother entertained and ijromulgated atheistical doctrines, and had pub- atheistical lished or joined in publishing a book calculated to deprave public morals, doctrines. (gg) Re Newton, 1 Ch. (96) 740, C. A. (rj Re Agar-ElUs, 10 Ch. Div. 49. (s) Re Nevin, 2 Ch. ,91) 30(3. (t) Re Scanlan, 40 Ch. D. 200 ; Re Nevin, 2 CIi. (01) Hll ; Re MrC.mlh, 1 Ch. (93) 148. (m) Re Scanlan, supra. («m) Re Newton, supra. K 242 INFANTS. most for the child's benefit, take into account the moral and religious welfare of the child, as well as his physical well- l)eiug and position in the world ; and he cannot disregard the ties of affection, (v) Section IV. — Testamentary Guardian under 12 Car. 2, c. 24. 12 Car. •_', c. By the Statute 12 Car. 2, c. 24, s. 8, a father was em- 24, 8. 8. powered by deed or will to dispose of the custody and tuition of his child or children diiring minority, or for any less period ; and it was thereby enacted that such disposition of the custody of such child or children should be good and eflFectual against every peison claiming the custody or tuition of such child or children, as guardian in socage or otherwise. Illegitimate This statutory power does not extend to the father of an <^hild. illegitimate child, (zo) The testamentary guardian is subject Control of to the Same power of control by the Court, where the Court. circumstances so require, as a father is, in his lifetime, (x) Testamentary When a father appoints several testamentary guardians, guaniianship and any of them die, the office survives, (jf) The case is Guardi^aiis ap- otherwi.se where several guardians are appointed by the pointed by Court. On the death of one of them, there should be a new \? ■' f appointment; (z) also on the marriage of a female guardian, (a) female guardian. Section V. — Guardianship of Infants Act, 1886. Jlother'a After the father's death, the mother, in absence of the ap- rightb. pointment by the father of any testamentary guardian, waa at law guardian by nurture ; that is she was entitled to the custody and government of her sons until fourteen, and of her daughters until sixteen. Her position was such that under the like circumstances it was almost a matter of course for a Court of Equity to appoint her guardian of her infant children, whether sons or daughters, during their minorities ; but she had no power before the year 1886 to appoint a (v) Re McGrath, 1 Ch. (93) 148; Re Nevin, 2 Ch. (91) 299; Re Neioton, supra. Cw) Sleeman v. Wilson, 13 Eq. 36. (a*) Wellesley v. D. of Beaufort, 2 Riiss. 21. Delegation of (i/) Eyre v. G. of Shaftesbury, 2 P. W. 103. The Act enables a father powei- to *'0 c-onftiT by will authority u|)on a surviving guardian to nominate a new aonoint guardian in the place of one wiio has died: Re Farnell, L. R. 2 P. & D. 379. ^ * ' (z) Rrachhaw v. B., 1 Kuss. 528. (a) Brown v. Smith, 10 Oh. D. 378; Camden v. Murray, IG ib. IGG. r GUARDIANSBIP OF INFANTS ACT, 188G. 213 guardian testamentary or otherwise ; (6) though where she purported to make such an appointment hy will, and the father had expressed uo wish on the subject, the Court regarded her wishes as deserving of great attention, (c) Her powers have, however, heen greatly enlarged by the Act of 1886, partly set forth below. By the Act 2 & 3 Yict. c. 5-i (commonly called Talfourd's Talfourd's Act. Act), the Court of Chancery had power to make an order giving to a mother access to her infant children, or giving to her the custody of the children until they should attain the age of seven years. This Act was repealed by the Custody of Infants Act, 1873, above mentioned ; and by s. 1 Custody of of the latter Statute, the power of the Court to deliver the '"'"'^''^^ Act, custody of the children to the mother was extended to the ' age of sixteen, (o?) This section has been repealed by the Statute Law Revision Act, (No. 2) 1893 (c. 54), as being no longer necessary, having regard to the more extensive powers conferred by s. 5 of the Act of 1886. On the death of the father of an infant, and in case the Guardianship father shall have died prior to the passing of this Act, then "^ ^nhau Att, from and after the passing of this Act, the mother, if sui'- ,. o ._deatli viving, shall be the guardian of such infant, either alone, of father, when no guardian has been appointed by the father, or jointly With any guardian appointed by the father. When no guardian has been appointed by the father, or if the guardian or guardians appointed by the father is or are dead, or refuses or refuse to act, the Court may, if it shall think fit, from time to time appoint a guardian or guardians to act jointly with the mother. (1) The mother of any infant may by deed or will appoint ■'^- •''• any j)er,son or persons to be guardian or guardians of such 1*"' "'■'*y infant afrer the death of herself and the father of such infant 'Ju|,'niian in {if such infant be then unmarried) and where guardians are certaiu cas«». appointed by both parents, they shall act jointly. (2) The mother of any infant may by deed or will provisionally nominate some fit person or persons to act as giiardian or guardians of such infant after her death jointly with the father of such infant, and the Court, after her death, if it be shown to the satisfaction of the Court that the father is for any reason unfitted to be the sole guardian of his children, may confirm the appointment of such guardian or (6) Re Scanlan, 40 Ch. D. 212. (c) Re Kaye, 1 Ch. 890. (d) As to this section, see Re Taylor, 4 Ch. D. 1.57; Re Holt, 16 Ch. Div. 115 ; Re Elderton, 25 Ch. D. 220 ; Smart v. S., A. C. (92) -iM ; Re Goldsworthii, 2 Q. B. D. 75. R 2 244 INFANTS. S. 4, Powers of guardian. S. 5. Orders as to custody ; — next friend. S. 6. Power to Court to remove guardian. S. 7. Divorce or judicial separation. Ss. 9, 10. Court to which application must be made. guardians, who shall thereupon be anthorized and empowered so to act as aforesaid, or make such other order in respect of the guardianship as the Court shall think right. (3) In tlie event of guardians being unable to agree upon a question affecting the welfare of an infant, any of them may apply to the Court for its direction ; and the Court may make such order or orders regarding the matters in difference as it shall think proper. Every guardian in England and Ireland under tliis Act shall have all such powers over the estate and the person, or over the estate (as the case may be), of an infant as any guardian appointed by will or otherwise now h;is in England under the Act 12 Car. 2, c. 24, or in Ireland under the Act of the Irish Parliament, 14 & 15 Car. 2, or otherwise. The Court may upon the application of the mother of any infant (who may apply without a next friend), make such order as it may think fit regarding the custody of such infant, and the right of access thereto of either parent, having regard to the welfare of the infant, and to the con- duct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or dischnrge such order on the application of either parent, or after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother and of the liability of the father for the same, or otherwise as to costs, as it may think just. In England and Ireland the High Court of Justice, in any Division thereof, and in Scotland either Division of the Court of Session, may, in their discretion, on being satisfied that it is for the welfare of the infant, lemove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act, and may also, if they shall deem it to be for the welfare of the infant, appoint another guardian in place of the guardian so removed. S. 7 gives power to the Court on making a decree for divorce or judicial separation, to declare the parent guilty of misconduct, to be a person unfit to have the custody of the children of the marriage ; and in such case the parent so declared to be unfit is not, upon the death of the other parent, to be entitled as of right to the custody or guardian- ship of the children, (dd) By s. 9 " the Court " is defined to mean " in England the High Court of Justice or the County Court of the District in which the respondent or respondents or any of them may reside " ; and it is provided that any application to the High Court of Justice in England is to be idd) Sldnner v. S., 13 P. D. 90. OUABDIANSEIP OF INFANTS ACTS, 1886. 245 made to the Chancery Division. By s. 10 an application to a County Court may be removed into the High Court of Justice and proceeded with befure a Judge of the Chancery Division on such terms as to costs as it may think proper, and an appeal is given from an order made by a County Court to the High Court of Justice. S. 2 applies where the infant's father has died, leaving Effect of the mother surviving. She in that case becomes the guardian **• 2, 3. of the infant, either alone, if no guardian has been appointed by the father, or jointly with any guardian appointed by him, as the case may be. S. 3 applies where the mother has died ; and it contemplates two entirely diiferent cases ; — first the appointment under sub-s. 1 is to take eflFect after the death of both parents. That appointment may be made either after the death of the father, or in his lifetime. Guardians may have been appointed by both parents, in which event both sets of guardians are to act jointly. That does not touch the case of guardians appointed by the mother to act during the life of the father. This is provided for by sub-s. 2. That sub-section is divided into separate parts. In the first place, the mother of the infant "may, by deed or will, provisionally nominate some fit person or persons to act as guardian or guardians of such infant after her death jointly with the father"— that is to say, the guardians so nominated are to act jointly with the father, not alone; and the nomination is only to operate provisionally. The guardians appointed by the mother do not become guardians by the mere act of appointment by her ; the appointment must be confirmed by the Court. Until confirmation it has no binding; effect : and there can be no confirmation, unless the Court be satisfied that the father is, for some reason, unfitted to be " sole " guardian. The Court may, if so satisfied, con- Power to dis- firm the appointment ; and the father may even be dis- P'-^'^'^ father, placed altogether, (e) In the case cited, a mother separated from her husband, appointed, pending a huit for a divorce, " so far as she might be able," two persons named to be guardians of her infant child. The mother died shortly afterwards ; whereupon the two guardians named in the will took charge of the infant, and placed her with the married sister of one of them. The father then requested them to give up the child to him; and on their refusal so to do, (e) Ee G., 1 Ch. (92) 292. 246 INFANTS. S. 5. Dis- placement of father's Common Law rights. Reluctance to remove mother. applied to the Queen's Bench Division for, and obtained, a writ of habeas corpus. In the meantime, and before that writ was returnable, an origifiating summons intituled in the matter of the infant and of the Act now under consideration was taken out in the Chancery Division by one of the testa- mentary guardians, as next friend of the infant. It was held, on the hearing of the summons, that the testamentary appointment, though wrong in form, ought to be treated as having been intended to be made under the statutory power; and accordingly an order was made confirming the appoint- ment of the persons named to act jointly with the father ; and the Judge, being satisfied up(m the evidence, that the father was " unfitted to be the sole guardian," said that he had no intention of interfering with the then present custody of the infant. (/) S. 6 confers upon the Court a wide discretion (i.e. a judicial discretion) as to the custody of and access to infants; and it will be observed that it must be exercised, having regard to (1) the welfare of the infant, (2) the conduct of the parents, and (3) the wishes as well of the mother as of the father. Accordingly, the Court has thereunder full jurisdiction to entirely override the father's Common Law rights in relation to the custody of his infant children, {g) On an application by a mother under this section, Kay, J., made an order giving the custody of an infant aged ten years to the mother on the ground of the misconduct of the father, and without fixing any limit of age during which the infant should remain in her citstody ; {go) and in the recent case cited below, both parents having been guilty of matri- monial misconduct, Chitty, J., directed that the custody of the infants should be, until further order, committed to the husband and wife, each for six months in the year, with a direction, inter alia, fir reasonable access to be allowed to one parent, while the infants were in the custody of the other parent ; and this order was affirmed on appeal, (ijh) The Court is always reluctant to reuiove a mother from being guardian ; but it often appoints two guardians to act jointly with her; so that on questions of maintenance and (/) ReG.,\ Ch. (92)295. («/) Re A. and B., 1 Ch. (97) 789, C. A. (ga) Re WMmi, 57 L. T. 336. (gb) Tie A. and B., supra. GUARDIANSHIP OF INFANTS ACT, 18SG. 247 education, the views of the majority may prevail, (/t) The Jurisiliction as Court has power, on an applicati(m by .sumniuns intituled in tf> l,nlnr(lian- ,, , c ^ • c • 1- • S'"l>. Illilili- the matter oi the intant, to appoint a guardian, and to give teii.nuL', etc. advice to trustees as to their duties in resjiect to the main- tenance, education, and advancement of infants ; but it has no jurisdiction, on such an application by a next friend of the infant, to make an adverse order against trustees for payment of any sums, annual or otherwise, out of trust funds in their hands. An action for the execution of the trusts is the proper course for attaining this object. Qih) When the Court makes an order, without action, for the appointment of a guardian and an allowance for maintenance, <^"«i''1iHn of it is the usual, though not the invariable practice, to appoint gg^'a^"" '^"'^* the same person to be guardian both of the person and of the estate, and to require the person so appointed to enter Account ; — into a recognizance with sureties duly to account, as ia the vocogmzance. case of a receiver ; but where the property is small, the Court will be satisfied with an undertaking to account. («) When the infant is a ward of Court, it is usual to appoint a Guardian of guardian of the person only. (; ) I'^'"^°» •'"^y- The main principle by whiah the Court is guided in Person to be appointing guardians is the welfare of the child ; and with *Pl'0'nted. that view it will endeavour to secure the services of persons who are likely to act together harmoniously ; (k) but the Court may even take into account the wishes of the deceased parents of the infant by appointing strangers in whom the parents have shown confidence in their lifetime, in preference to relations. (Z) The appointment of a married woman as sole guardian is improper ; (m) but upon the Reaj)point- marriage of a female guardian the Court will, as a rule, ment of female . , ... 1 T T T T -p r T. guardian upon reappoint her, joining her husband as co-guardian, ii ne be carriage. a proper person to fill the office, (n) Section VI. — Maintenance and Education. Though the Court of Chancery had power to order a Maintenance proper allowance to be made for the maintenance and educa- iu father's ^ ^ liletiine. ih) Re G., 1 Ch. (92) 29.5. Qih) Re Lofthouse, 29 Ch. Div. 932. (t) Seton, 844. (j) Dan., 1120. " (70 Re Kevin, 2 Ch. (91) 30.3. (0 Re Kcuje, 1 Cli. 390. (m) Ih. Ill) Camdtn v. Murray^ ItJ Cli. D. IGG. 248 INFANTS. Past mainten- ance. Mother ; — Women's Property Act, 188-2. Trust for maintenance. Income nf contingi'ut legacies. tion of an inlant, out of property belonging to him, (o) it would not, in general, make any sncli allowance in the father's lifetime, if he was of suflBcient ability to maintain and educate the child in accoidance Math the child's position and expectations in life. The reason of the rule was that the father was assumed to be by law bound to support the child ; but when the father was not of ability, the Court might make him an allowance for past as well as for futuie maintenance or education ;(jp) and especially where he bad sold property or borrowed money for either of those pur- poses. (;{ ^^/j^ \'~l 1860 (c. 145), it is enacted that " (1) where any property is «-•• 145, s. 2b. held by trustees in trust for an infant, either for life, or for any greater interest, and whether ab8olutel3% or contingently on his attaining the age of twenty-one years, or on the occurrence of any event before his attaining that ago, the trustees (t"t"-uauce, be entitled, by way of set off, to a proper allowance in respect of such maintenance, (n) Section VII. — Poivers of tJie Court over Wards. When an infant is party, whether as plaintiff or as When infant defendant, to an action in the Chancery Division for admini- ''•^'^"jnes a • /• • 1 • 1 1 ward ; — jiarty stration of an estate, or the execution of trusts, in which he to action, is interested, he becomes ipso facto a ward of Court. It has also been held, having regard to the terms of s. 2 of the Trustee Relief Act of 1847 (c. 96 now replaced by s. 42 of Order undnr the Trustee Act, 1893, c. 63) that an infant became a ward Trustee Keliet . Act • of Court when an order had been made concerning funds ' in which he was interested, and which had been paid into For mainten- Court under that Act ; (p) also when an order had been ''*"'^'^- made in Chambers, without suit, settling a scheme for his O') Wellesley v. D. of Beaufort, 2 Russ. 28; Cadman v. C, 33 Cli. Div. 400. (It) Howard v. E. of Shrewsbury, 17 Eq. 399. (0 Wall V. Stanwick, 34 Ch. D. 7G7 ; but see supra, pp. 80-82. (m) Ee Hobbs, 36 Ch. D. 557. (n) Wall V. Stanwick, supra. ip) Be Hodge, 3 K. & J. 213. 254 INFANTS. Legacy Dutv Act. Lands Clauses Act. Separate account. Marriage ; — Sanction of Court. Settlement of wife's pro- perty. How sanction obtained. Marriage without sanc- tion a contempt. Injunction to restrain marriage. Marriage in contempt of Court. maintenance, (q) The case was otherwise as to funds paid into Court under s. 32 (now repealed) of the Legacy Duty Act, 36 Geo. 3, c. o2, (r) and also as to funds paid in under the Lands Clauses Consolidatioti Act 1845 (c. 18). («) It was held by Hall, V.C., that when moneys had been carried to the separate account of infants in an administration action, the infants thereby became wards of Court though they were not parties to the action ; (/) but this proposition was doubted in a subseipient case by Kay, J, (t*) A ward in Chancery is not permitted to many without the sanction of the Court. The sanction w ill be given on the Court being satisfied that the intended marriage is a proper one; but in the case of a female ward, only on the terms tliat a proper settlement of her property, to be approved of by the Judge in Chambeis, be executed. The leave of the Court was prior to the present Kules of Court, obtained on petition by the intended husbanil, which was generally adjourned into Chambers, The application is now made by summons. («;) If a man marry a ward without the sanction of the Court, he is liable to be committed to prison for his contempt in so doing, and to be kept there till the Court shall consider such contempt to have been purged, {iv) The Court has jurisdiction to restrain the ward and the intended husband or wife from marrying, and also from holding communication with each other ; but this power is at an end after the ward has attained majority, (a) When a female ward in Chancery has been married in contempt of CoUrt, it is in general competent to a next friend successfully to apply by petition or motion intituled in the action and in the matter of the infant asking for an inquiry as to the validity of the marriage, and that in case it (q) Re Graham, 10 Eq. 5R0. (r) Be nUlary, 2 Dr. & Sm. 461. (s) Ee Wilts, etc. By. Co., ib. 552. (0 De Pereda v. De Mancha, 19 Ch. D. 451. (h) Brown v. Collins, 25 Ch. D. 56, where the infants were aliens not named in the account, and only came within the descriptiun of issue of their father who was named therein. (v) See O. 55, rr. 2 (10), 26. (w) Be Sampson, 25 Ch. Div. 482. (x) Bolton V. B., 8 Ch. (91) 270. In this case an intending husband obtained the leavi' of the Court to pay his addie.«se8 to the ward upon giving an undertaking by atBdavit that he would, if the leave were given, ill all respects abide by the directions and orders of the Court. It was held that the undertaking was only intended to apply while the ward was under age. WARD OF COURT. 255 shall appear thfit the marria<];e was valid, a proper settle- ment, to he approved by the Jiul^e, may ho made of the lady's fortune, (jj) Cases of this kind are generally lieard in Henring in private ; and a newspaper pulilislier who publishes a report V'^''^^^- of any case so heard, is liable to be committed for con- tempt. (2) Where the husband has been committed to prison, the Settlement Court will in general, in ordering his release, make it a ',',",",,u,nvo,n condition that he execute a proper settlement of the lady's custody, property ; but the Court has no jurisdiction, after the wife has come of age, to restrain her from disposing of her Marriage after property as she pleas^'s ; (a) nor has it power to compel an ^"J",!;'"^!; infant to make a settlement of his or her property a^^ainst his or her wilL (b) This case differs from the case of a man having married a female ward, before the Married Women's Property Act, 1882, and thereby acquired rights in her property, (c) When a father or guardian has been improperly deprived ^^'"'■|Jj'~ of the custody of an infant, it has often been found con- venient, instead of moving for a writ of habeas corpus, to pay a small sum of money to trustees in trust for the infant, and then to commence a Chancery suit or action in the infant's name, as next friend for the execution of the trust, so as to make' the infant a ward of Court ; and then to move imme- diately for such interlocutory order (if any) as the circum- stances of the case may have required, (d) A like course has been adopted when a child appeared about to contract an J^^FJ'P^J^ improper marriage, (e) (V) Re Sampson, mpra. See S. C. as to the St.t.ite 18 & 19 Vict. c. 43. I"f=;"t« ^Mch .nabled an mtaut to make a binding settlement of h-s or her pro- Settlement Dertv on marriage; also Seaton v. S.. 13 App. 61.; i?« Johmon, 3 Cb Act, 18o5. fei) 48 ; Re ScotUl Ch. (91) 298 ; Re Leigh, 40 Ch. Div. 290 ; supra, p. 127 Uoon the question how far a settlement execiit. d l.y a female infant ot ^j ^y p ^^^ ber personal property is, under s. 19 of the Married Women's Property ^^^.,^ ^_ ^^ Act 1882 bin.ling upon her, on attaining majority, see Stevens v. Irecor- Garrick, 2 Ch. (93) 3U7. (2) Re Martindale, 3 Ch. (94) 193. + „f „ , . . (J) Bolton V. B., 3 Ch. (91) 270. As to the form of settlement of a {...rtoiture female infant's property where the husband's riglils have b.en forfeited „„.ier bv reason of his having procured a marriage by a false oath or otherwise M.^-iage Act, by fraud) mider the Marriage Act, 1823 (e. 7G), s. 23, see A.-U. v. Read, 1623. 12 Eq. 38. (6) Re Leigh, 40 Ch. Div. 290. (d) in Andrews v. Salt, 8 Ch. G27, the mode.t sum of £20 was taken as ^""ttwellesUy v. D. of Beaufort, 2 Russ. 29. The Court has jurisdiction 256 INFANTS. Removal of ward out of jurisdiction. County Court jurisdiction. Solicitor ; residence ward. of The Court will not allow its ward to be removed out of the jurisdiction without its own leave. It may grant an injunction to restrain the infant's father from so removing him. (/) The leave to remove the infant out of the juris- diction will be given, however, if it appear to be for the infant's benefit that it should be given, and that there id sufficient security that future orders of tlie Court will be obeyed. (g) The County Court has, under the Act 51 & 52 Yict. (c. 43) s. 67, all the powers and authority of the Chancery Division of the High Court in all actions and matters relating to the maintenance or advancement of infants, in which the property of the infant does not exceed in amount or value the sum of £500. to order a motlier or otlier person in whose custody a ward is, to delivf-r the ward to the father or other guardian, and to enforce its orders for the production or custody of the ward : G. v. L., 3 Cii. (91) 126. (/) De Manneville v. De M., 10 Ves. 52. (g) Re CaUaghan, 28 Ch. Div. 186. A solicitor is bound to give to the Court any information wliich may lead to the discovery of the residence of a ward of the Court, whose residence is being concealed, although such information may have been communicated to him by his client in the course of his professional employment : Bamebotham v. Senior, 8 Eq. 575. ( 257 ) CHAPTER XI. RELIEF AGAINST PENALTIES AND FORFEITUIIES. Section I. — General Principles ; — Belief against Penalties under Bonds. The relief against penalties and forfeitures was a very old branch of the exclusive jurisdiction of the Court of Chancery ; and it arose with a view to mitigating what was considered to be the harshness of the rules of Common Law. If a person executed a bond for the sum of £1000, with a Penalty to condition that the same should be void in case he should, on ^^^^^^ money. or before a certain day, pay to the obligee the sum of £500 with interest thereon, in the meantime at a given rate, then upon failure to make such payment on the appointed day, the obligee was entitled to sue at Law, and recover and issue execution for the whole of the £1000. Thereupon Equity interposed and granted relief to the obligor on payment by him of the £500 with interest and costs, holding that the intention of the parties was merely to secure the payment of the £500 and interest ; and if the circumstances of the case so required, the Court would have granted an injunction to restrain proceedings at Law upon the bond. The necessity 0^,0 wii -> for resorting to proceedings in Equity in simple cases of this c. 11, s. ^ ;—• I kind was obviated by the Statutes 8 & 9 Will. 3, c. 11,^?3^^c'lp s. 8, and 4 & 5 Anne, c. 3, (a) s. 13 ; and by the Common Act, '18GO Law Procedure Act, 1860, c. 126, s. 25 (repealed by the «. 25. Stature Law Eevision Act, 1883, c. 49); for, under these Statutes a defendant to an action pending upon any such bond was enabled to bring into Court the principal money and interest due on the bond, with the plaintiffs costs, in full satisfaction and discharge of his liability. In an old and leading case of Peachy v. D. of Somerset, (b) Penchi v. D. Lord Macclesfield, L.C., said, "The true ground of r&\\Qi «f Somerset. (a) In RufFhead's edition c. 10. (b) 1 Str. 447. 258 PENALTIES AND FORFEITURES. against penalties is from the original intent of the case, where the penalty is designed only to secure money, and the Court gives hiiu (the obligee) all that he expected or de- sired." The doctrine so stated was afterwards luodified by Lord Thurlow, L.C., and extended to cases other than those of bonds with a penalty for securing money. In the Sloman v. old and leading case of Sloman v, Walter, (c) he thus stated e^' ir^'t" *^® ^^^ ' " '^^^ ^"■'^ that, where a penalty is inserted merely secure col- to secure the enjoyment of a collateral object, the enjoyment lateral object, ^f ^j^g object is considered as the principal intent of the deed, and the penalty only as accessional, and therefore only to secure the damages really incurred, is too strongly established in Equity to be shaken." In this case a bond for the sum of £500 had been executed to secure to the defendant the use of a certain room, and Lord Thurlow, considering that the sura was in the nature of a penalty, and not of assessed damages, granted an injunction to restrain an action at Law for the recovery thereof. The rule has been settled ever since the decision of this case that when it has been agreed that a specified sum shall be paid in respect of the perform- ance or non-performance of a collateral matter, the actual damages for which can be estimated, the penalty will be cut down, and only the amount of the actual damages sustained, can be recovered. (cZ) Judicature "pj^^ equitable doctrine has been severely animadverted upon by some of the Judges from time to time ; (e) but it has remained in force since the Judicature Acts, and is now recognised by all the Courts and Divisions. Section II. — Distinction between a Penalty and Liquidated Damages. StipulMtion for I" Order to exclude the equitable doctrine above stated, liquidated contracting parties often stipulate that in the event of a ■'^g*'' • breach of the C(jntract, a fixed sum shall be paid by the party in fault to the other, as and by way of liquidated damages. Such a stipulation is, prima facie, binding upon (c) 1 Bro. C. C. 418. Upon the question when a plaintiff may obtain an order under O. 14, r. 1. empowering liim to enter tinal judgment on a bond, see Gerrard v. Clowes, 2 Q. B. (92) 11. (d) Law V. L. B. of liedditch. 1 Q. U. ('.)2) 134, C. A. (e) See obwrvations of Jessel. M.R., in Wallig v. Smith, 21 Cli. Div. 259, and of Kay, Ij.J., in Licm v. L. B. af liedditch, supra. ♦. r. 1. . LIQUIDATED DAMAGES. 259 the contracting parties; but it is subject to several ex- ceptions ; and it was held even by the Common Law Courts, before the Judicature Acts, and it is now the law of all the Courts and Divisions, that such words will not prevent such a stipulation from being construed as an agreement for the payment of a penalty if such be really the intention of the parties ; and in that case, the amount stipulated for cannot be recovered, but only the amount of actual damage sustained by breach of the agreement. (/) On the other hand, when the amount agreed to be paid is, for a penalty- in the instrument itself, called a penalty, a very strong case is required to induce the Court to hold that it is to be treated as liquidated damages, (j/) One of the exceptions above referred to is that where the Bond, etc., to amount stipulated for by a bond or other instrument is only ^^^^'^^ money, to secure the repayment of a sum of money, on a fixed day, such amount cannot be recovered, but only the sum intended to be secured, with interest by way of compensation for the delay, it being a rule that no damages, in the strict sense of No damages the term, are recoverable for the non-payment of money by P^J''''^?'^ ^'^'^ . . -"^ •' J J delav in paymg a time certain. {Ji ) money. Another exception is that when one lump sum is made Lump sum payable by way of compensation, on the occurrence of one or payable in sf^vfirs,! events more or all of several events, some of which may occasion serious, and others but trifling damage, the presumption is that the parties intended the sum to be penal, and subject to modification, (i) Thus in Me Newman, (j) a contract for Se Newman. the erection of buildings provided that the buildings should be completed on or before a certain day, and that in default thereof, the contractors should forfeit to the employer the sum of £10 for every week after that day during which the buildings should remain unfinished. The contract albo con- tained other stipulations of various degrees of importance, and a provision that in case the contract should not be in all things duly performed by the contractors, they should pay to the employer the sum of £1000, as and for liquidated (/) Rayner v. Condor, 2 Q. B. (1},5) 289. (j7) Willson V. Love, 1 Q. B. (96) 632, C. A.; Parfitt v. Ghamh're, 15 Kq. 36. (7t) WalUs V. Smith, 21 Ch. Pi v. 257. (i) Lord Elphins one v. Monkland, &c. Co., 11 App. 332. (;■) 4 Ch. Div. 721. See also lluyner v. Condor, supra; Barton v. Capewell, &c. Co., 68 L. T. 857 ; The Prinass, 70 L. T. 38'J. S 2 2C0 PENALTIES AND FORFEITURES. event. Lnxo V. L. B. of Itcdditch. damages. It was held by the Court of Appeal that the £1000 was in the nature of a penalty, and that the employer could only prove against the estate of the contractors (who had filed a petition for liquidation before the day appointed for the completion of the buildings), for the actual damage sustained by delay in the completion of the works, (fc) Lump sum But where one lump sum is made payable by way of imyable in one compensation on the occurrence of one event, and is made proportionate to the extent of the damage to be sustained by a breach of the contract (-not being a contract for the payment of a mere sum of money), then the whole of the amount so stipulated for may be recovered. Thus in Law v. L. B. of Medditch, (I) a contract for the construction of sewerage works provided that the works should be com- pleted in all respects and cleared of all implements, tackle, impediments and rubbish by a specified date, and that in default of such completion, the contractor should forfeit and pay, as and for liquidated damages, a lump sum of £100, and £5 for every seven days during which the woiks should be incomplete, after that date. It was held by the Court of Appeal that the sums agreed to be paid as liquidated damages were payable on a single event only, namel}^ the non- completion of the works, and that they were to be regarded as liquidated damages, and recoverable as such. The like principle was held by the Court of Appeal to apply to a case where the stipulations varied in importance, and the damage (not being for non-payment of a sum of money) was not easily ascertainable ; (m) but in Willson v. Love (n) Eigby, L.J., as to this case, said, " What is meant in this statement by the expression incapable of being ascer- tained ? In their proper sense, the words appear to refer to a case where no rule or measure of damages is available fur the guidance of a jur}', as to the amount of the damages, and a judge would have to tell them they must fix the amount as best they can." In Willson v. Love, a lease of a farm contained a covenant by the lessees not to sell hay or (Ji) As to the light of a contractor to resist a claim for liquidated damages on the ground that additional work has been ordered by tlie employer, whereby the completion of the work has been delayed beyond the time stipulated, see Dodd v. Churton, I Q. B. (97) 562, C. A. (I) 1 Q. 13. (92) 127. (m) WalUs V. Smith, 21 Ch. Div. 2G4. See also Cooper v. L. B. & 8. C. By Co., 4 Ex. D. 88 ; Lea v. Whitaker, L. K. 8 C. P. 70. (n) 1 Ch. (90) G34, 0. A. Sec also The Brincexs, 70 L. T. 389. D.imnge not easily ascer- tainable. Willson Love. Builfling con- tract ; — ad- ditional works. LIQUIDATED DAMAGES. 261 straw off the premises, during the last twelve months of the term, but to consume the same upon the premises, and also a provision that an additional rent of £3 per tun should bo payable, by way o? penalty, for every ton of hay or straw so sold ; and it appeared that there was a substantial difference between the manurial value of hay and that of straw. It was held that the sum so made payable was a penalty, and not liquidated damages. In the cases above referred to, it was the intention of both Option to do parties that the covenantor or oblig-or should abstain from °"'^ "' '^^^ '■ . ° things ; — doing the particular act in question. Such cases must be jiolfc v. Fetcr- distinguished from those where an intention appears upon ^°'*- the face of the instrument that the covenantor or obligor is to be allowed to perform the particular act on paying a valuable consideration, e.g. where, as in the old case of Bolfe V. Peterson, (o) a lessee covenanted not to plough up any of the ancient meadow or pasture-ground, and that if he did so, he would pay an additional yearly rent of £5 per acre. The decree made by Lord Camden, L.C., granting equitable relief against the additional rent was reversed hy the House of Lords. Lord Loughborough, L.C., in a subse- quent case, (p) observed as to this decision, that it was a case of a " demise of land to a lessee, to do with the land as he thought proper, but if he used it one way, he was to pay one rent, and if another way, another rent," and that it was different "from an agreement not to do a thing, with a penalty for doing it." In cases of this kind it is, as a rule, Question oi a question of construction of the instrument in question *^°'^'' ' "^ '""^ whether the parties intended that the lessee should have an option to do the particular act in question, upon paying the additional rent, or whether the lessor is to have an option either to re-enter in case of breach, or if he prefers not to re-enter, to call upon the lessee to pay the increased rent. (5) If interest on a mortgage debt be reserved at a given stipulation for rate, with a provision for increasing the same, in default of P''^^'.'"^."\ "^ punctual payment, such a provision amounts to a penalty interest against which equitable relief will be given ; while if the larger interest be reserved by the deed, a stipulation reducing (o) 2 Bro. P. C. 436. See also Jones v. Green, 3 Y. & J. 298 ; Dickson v. Lough, 18 L. K. Ir. 518. (p) Hardy v. Martin, 1 Cox, 27. (q) Weston v. Managers of the Metropolitan Asylum Didrict, 9 (J B. Div. 406. 262 PENALTIES AND FORFEITURES. it to the lower rate, in case of punctual paymeiit is good. It ■was held, however, by Lord Eomilly, M.R., (r) that a stipula- tion in an agreement for the purchase of lands by a company, to the effect that the company should jiay interest at the rate of 4 per cent, from the time of taking possession up to a certain date, 5 per cent, for the next half year, and 8 per cent, for every subsequent year, was good, for reduction The general rule last referred to does not apply fo an of 3w lease lessee, his executors, administrators, or assigns, shall, upon "^""^ • such proceeding, be relieved, he and they shall hold the demised lands according to the lease thereof made, without any new lease." The jurisdiction to grant relief under these statutory Possession ol^ provisions is not confined to cases where the lessor seeks to a^;t,jon, recover or has recovered possession by legal process, but extends also to cases wht-re possession has been recovered without the assistance of the Court, e.g., by entrance through a back door or otherwise. (6) Except where the statutory provisions above referred to otherwise provided, it was, in general, necessary for a lessee seeking relief in Equity before the Judicature Acts to obtain an injunction to restrain the lessor from commencing or prosecuting his action of ejectment, or issuing execution thereon ; and the Court would have granted an injunction, where the justice of the case so required. But by s. 24 (5) •^"^'- ^^^ ^^"^^t of the Act of 1873, injunctions to restrain actions at Law were abolished ; and every matter of Equity which might previously have aflforded groixnd for obtaining such an in- junction, may be relied on by way of defence. It may, however, still be necessary for a lessee to commence an action of his own, in order to obtain relief from forfeiture of his lease, e.g., where, as in the case last referred to, the lessor has recovered possession of the property without the assist- ance of the Court. S. 210 contains a proviso that nothing contained in the Relief to mort Act shall extend to bar the right of a mortgagee not in c^^L^p°Act possession, so as such mortgagee do, within the period of 1852, s. 210. six months after judgment and execution, pay all rent in arrear, and all costs sustained by the lessor, and perform tho covenants and agreements which ought to be performed on the part of the lessee. The Court will, in general, grant relief to a mortgagee of the demised property upon the terms required by the proviso, unless there has, between the date of the judgment, and the application for relief, accrued to some third party a right which would render it inequitable so to do. (c) (h) Hoivard v. Fanshaioe, 2 Ch. (95) 581. (c) Newbolt V. Bingham, 72 L. T. 852, C. A. 266 FOBFEITUIIE OF LEASE. Bankrupt When a lessee, being entitled to be relieved from for- cJmsor""^" " f*^iture, under any of the provisions of the Common Law Procedure Acts, above referred to, becomes bankrupt, his riaht to relief is a chose in action which vests in the trustee in bankruptcy ; and a purchaser from the trustee is entitled to the like relief as the bankrupt himself would have been, if he had continued solvent, {d) Costs of action. The lessee will, in general, be required, as one of the conditions of being relieved against the forfeiture, to pay a lessor's costs of any action necessary to obtain such relief, in addition to paying all arrears of rent due. He will, how- ever, be entitled to set off against those costs any costs which may be occasioned by the lessor imj^roperly resisting his Croft y. claim for the relief; (e) but in Croft v. London, &c., Co.,(/) London, Sfc.t ^ lessor commenced an action to enforce a forfeiture for non- payment of rent and other breaches of covenant. The only breach proved at the trial was for non-payment of rent. The arrears of rent without costs had been offered to the plaintiff before action, and had afterwards been paid into Court. Judgment was given for the plaintiff without costs, and he was ordered to pay the costs in respect of the breaches which he had failed to prove, execution being stayed to enable the defendants to apply to a Judge in Chambers for relief against the forfeiture. Such relief was afterwards granted ac- cordingly, without the defendants being required to pay to the plaintiff any costs other than those of the summons for relief. I^ortgagor It has been somewhat recently held by a Divisional necessary party Court («) that relief cannot, under s. 1 of the Act of 1860, to action by . ^-^ ■' ' n ■> ^ • r c morto-ao-ee. be given to a mortgagee by way oi underlease m absence oi the owner of the equity of redemption ; but this rule does not apply where the mortgagee has obtained an assignment of the interest of such owner from the trustee under his bankruptcy. Qi) Section IV. — Forfeiture for Breach of Covenant other than for Payment of Bent. The Court of Chancery would not, prior to the passing of (d) Howard v. Fanshawe, 2 Oh. (95) 581. (e) Howard v. Fanshawe, 2 Ch. (95) 592. (/) 14 Q. B. Div. 347. ((7) Hare v. Elms, 1 Q. B. (93) 604. (h) Howard v Fanshawe, 2 Cli. (95) 589. BREACH OF COVENANT. 267 Lord St. Leonard's Act, 1859 (referred to below), and in Rolicf formerly absence of some special Equity, e.g., fraud, mistake, or forfeUure'for surprise, relieve a lessee against the breach of a covenant to non-payment repair, or to insure, or, in fact, against the breach of any ^' ^'^^^' other covenant except that for payment of rent, (i) In other words, it would not grant siich relief merely by way of mercy, and to save the property. Such relief would, however, be granted where parties had Unfair dealing, entered into an agreement involving penalties or legal for- feiture, and where the party entitled to take advantage of the penalty or forfeiture was afterwards guilty of conduct having the effect of entrapping the person liable thereto, or of lulling him into false security. If, without any such Negociation conduct on either side, the parties, after making such an ^tj^^t rights, agreement, by their own acts, entered upon a course of negociation which might naturally be construed to have the effect of leading one of them to suppose that the strict rights arising under the agreement would not be enforced, or would be kept in suspense, the person who otherwise might have enforced those rights would not have been allowed by the Court of Chancery, nor will he now be allowed by the High Court to enforce the same. Thus, in Hughes v. Met. My. Hughes v. Met. Co., (j) a lessor on the 22nd October, 1874, gave to the ^'^- ^^• lessees a six months' notice to repair under a covenant contained in their lease ; and in reply, received a letter dated the 28th November asking in effect if he were inclined to purchase the property. The lessor's solicitors, by a letter dated the 1st December, asked what price was demanded, and they were informed by letter, dated the 30th December, that it was £3000. The lessor's solicitors, on the 31st December, 1874, objected to the price, and requested that the lessees should reconsider it, having regard to the notice served, at the same time saying that they would be glad to receive a modified proposal. Without any further com- munication, the lessor's solicitors, on the 20th April, 1875, being two days before the expiration of the notice, wrote stating that the negociations had been broken off in the previous December, and that there had been ample time to (i) Barroio v. Isaacs, 1 Q. B. (91) 429, C. A. ; Ilowurd v. Fanshawe, 2 Ch. (95) 587. (j ) 2 App. 439. Sec also Birmingham, &c. Co., v. L. & N. W. liy. Co., 40 (Jh. Div. 268 ; and compare Williams v. Stern, 5 Q, B. Div. 409. 268 FORFEITURE OF LEASE. Covenant to insure ; — '22 & 23 Vict. c. 35, ss. 4-9. Conv. Act 1881 (c. 41) s. 14. Restric- tions ou and relief against forfeiture of leases. Underlease. complete the repairs ; and tliey almost immediately after- wards commonced an action of ejectment to recover the property. It was held by the Court of Appeal, and by the House of Lords, that the letters of November and December had the effect of suspending the notice, and that the sus- pension did not come to an end till the 31st December, that no part of the time which elapsed between October and that day could be counted against the lessees, in computing the six mouths' notice to repair, and that the latter were en- titled to judgment. The Court had, under Lord St. Leonard's Act, 1859 (c. 35), ss. 4-9, a limited power to grant relief against the forfeiture of a lease, for breach of a covenant to insure ; and this power was, by s. 2 of the Common Law Procedure Act 18G0 (c. 126), extended to the Superior Courts of Common Law. Both these enactments have been repealed by s. 14 of the Conveyancing Act 1881 (c. 41) partly set forth below, — as being no longer necessary, having regard to the more com- prehensive provisions of that section. (1.) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable, by action or otherwise, unless and until the lessor t^erves 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 reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. (2) Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, apply to the Court for relief; and the Court may grant or refuse relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit ; and in case of relief, may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit. (3) For the purposes of this section, a lease includes an original or derivative underlease, also a grant at a fee-farm rent, or securing a rent by condition ; and a lessee includes BREACH OF COVENANT. 2Gl) an original or derivative underlosseo, and the heirs, exe- cutors, administrators and assij^ns of a lessee, also a grantee under such a grant as aforesaid, his heirs and assigns ; and a lessor includes an original or derivative underlessor, and the heirs, executors, administrators, and assigns of a lessor, also a grantor as aforesaid, and his heirs and assigns. (4) This section applies, although the proviso or stipuUxtion under which the right of re-entry or forfeiture accrues, is inserted in the lease in pursuance of the directions of any Act of Parliament. (5) For the purposes of this section, a lease limited to continue as long only as the lessee abstains from committing a breach of covenant, shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry, on such a breach. (6) This section does not extend — (i,) To a cove- Covenant nant or condition against the assigning, underletting, parting against under with the possession, or disposing of the land leased ; (/c) or l^^ttiug etc. to a condition for forfeiture on the bankruptcy of the lessee, or on the taking in execution of the lessee's interest ; or (ii.) Mining Lease. In case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines, or other things, or to enter or inspect the mine, or the workings thereof. By sub-s. 8, it is provided that the section is not to affect Non-payment the law relating to re-entry or forfeiture or relief in case of "^ '■'^"'^• non-payment of rent , and by sub-s. 9, it is to apply to leases p^^ . . made either before or after the commencement of the Act, retrospective, and to have effect, notwithstanding any stipulation to the ®'''^' contrary. (1) A lessor shall be entitled to recover as a debt due to Conv. Act, him from a lessee, and in addition to damages (if any), all 1892 (c 13) reasonable costs and expenses properly incurred by the lessor ^- ^ ' ^°^*^ "^ in the employment of a solicitor and surveyor or valuer, or f^'nT re" in otherwise, in reference to any breach giving rise to a right case of ba'nk- of re-entry or forfeiture which, at the request of the lessee, ruptcy or is waived by the lessor by writing under his hand, or from execution, which the lessee is relieved, under the provisions of the Conveyancing and Law of rroj)erty Act, 1881, or of this Act. Forfeiture on (2) tSub-s. 6 of s. 14 of the Conveyancing and Law of ija'^kruptcy of Property Act, 1881, is to apply to a condition for forfeiture ^'-''^^'=^' '-''^'^• on bankruptcy of the lessee, or on taking in execution of the lessee's interest, only after the expiration of one year from the date of the bankruptcy, or taking in execution, and provided the lessee's interest be not sold within such one year; but in case the lessee's interest be sold within such (It) See Barrow v. Isaacs, 1 Q. B. (91) 417, C. A., cited and cxjilained infra. 270 FORFEITURE OF LEASE. one year, snb-s. 6 shall ceaso to be applicable thereto. (3) kSub-s. 2 of this section is not to apply to any lease of — Aericultural ('^) Agricultural or pastoral land : (b) Mines or minerals : lanrl etc. (c) A house used or intended to bo used as a public-house or Mines etc. bcershop : (d) A house let as a dwelling-house, with the use P bl"' h "^ '"^y furniture, books, works of art, or other chattels not et,c_ ' being in the nature of fixtures : (e) Any property with Furnished respect to which the personal qualifications of the tenant are house. of importance for the preservation of the value or character Personal ^^ ^'^® property, or on the ground of neighbourhood to the qualification of lessor, or to any person holding under him. tenant. S. 3 contains a provision against the exaction of a fine on Vicinity to obtaining a licence to assign. Where a lessor is proceeding, by action or otherwise, to ' ^"®* enforce a right of re-entry or forfeiture under any covenant, S. 4. Power proviso, or stipulation in a lease, the Court may, on applica- of Court to i- -u 1 • • 11 IK protect under- '^ ^^'^ P^^^^n claiming as underlessee, any estate or lessees on interest in the property comprised in the lease, or any jjart forfeiture of thereof, either in the lessor's action, (if any), or in any superior leases, action brought by such person for that purpose, make an order vesting for the whole term of the lease, or any less term, the property comprised in the lease, or any part thereof, in any person entitled as underlessee, to aiiy estate or interest in such property, upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise, as the Court, in the circumstances of each case, shall think fit ; but in no case shall any such underlessee bo entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease. S. 14 of the Act of 1881 did not apply to the forfeiture of an agreement for a lease or underlease ; but the power of the Court to relieve a lessee or underlessee contained in that Act of 1892, section, iB, by s. 5 of the Act of 1892, extended to the case s. 5 ;--agree- £ ^^ agreement for a lease or underlease, where the leasee ment lor lease. ° • i i or underlessee has become entitled to have the lease or underlease granted to him. It will be observed that by sub-s. 3 of s. 14 of the Act of Act of 1881- 1881, the terms lease and lessee include an underlease and underlease. an underlessee respectively; so that if A. demise to B., and B. sub-demise to C, and afterwards commence an action against C, to recover the property on forfeiture by breach of covenant, C. will be entitled to the like relief, if any, against B., as B. himself would, under like circumstances, be entitled to against A. But if the action had been brought by A. against B. and C, C. would not have been entitled to relief BREACH OF COVENANT. 271 from the forfeiture as against A. ; because there was no privity of contract between A. and C. (Z) It was, no doubt, considered a hardship that an underlessee in the position of C. was liable to be evicted for a forfeiture incurred by a person over whom he had no control. This is the case Alteration hy which s. 4 of the Act of 1802 was intended to provide for ; ^""^ ''^ ^^'^'^' and it would appear that s. 2 (2) (3) and s. 5 were intended as amendments of s. 14 of the Act of 1881, while ss. 3 and 4 of the Act of 1892 are entirely independent enactments ; and thus the Court has jurisdiction under s. 4 of that Act to Covenant not relieve an underlessee against a forfeiture of the original ° ^^"^S"' lease, even where the forfeiture has been occasioned by breach of a covenant not to assign or underlet without licence. («i) This jurisdiction, however, will be exercised with caution, and sparingly ; and it is incumbent upon an underlessee seeking the aid of the Court, under this section, to show that he is free from blame, and has used all such precaution as wol^ld, in general, be taken by a prudent and careful person. Therefore, where a person purchased an Negligence in underlease under a contract which did not give him a rio;ht ^^^ mvestigat- f ^ ing lessor s to call for the title of the original lessee, who was bound by title. a covenant against assigning or underletting without licence, and purchased with the intention of laying out a considerable sum of money upon the property, the Court of Appeal refused to grant relief against the forfeiture. (?j) It will be observed that where a lessee becomes bank- s. 2 (2) of Act rupt, or his interest in the property comprised in the lease "^ ^^^^ 5 — has been taken in execution, he is, by s. 14 (6) of the Act of ig^^^gg gtc_ 1881, precluded from obtaining relief against forfeiture under a power of re-entr}^ on the happening of either of those two events; (o) but the Court has, under s. 2 (2) of the Act of 1892, power to grant relief in either of such cases to an underlessee, even where it has no power to grant the like relief to the lessee himself, (^p) In Fletcher v. Nokes, ( q) North, J., held that the notice Fletcher v. under s. 14, sub-s. 1 is a condition precedent to the right of a ^ conViUon ^^'^ (I) Nind V. Nineteenth, &c. Society, 2 Q. B. (94), 232, C. A. precedent. (m) Imray v. Oal.shcite. 2 Q. B. (97) 218, C. A. Compare Barrow \. Isaacs, 1 Q. B. (91) 417, cited aud explained infra. (n) Imray v. OalishMe, supra. (o) As to the construction and effect of a proviso for forfeiture, on Forfeiture on ^ bankruptcy generally, see Smith v. Gronow, 2 Q. B. (91) 394. bankruptcy. (p) Wardens of Cholmeley School v. Sewell, 2 Q. B. (94) 90G. Iq) 1 Ch. (97) 271. See also Ee Serle, 1 Cb. (98) G52. 272 FOBFEITURE OF LEASE. Requisites of notice. Damages. lessor to commence an action to enforce the right of re-entry for breach of covenant ; and that, therefore, in order to entitle him to enforce such right, the notice must be given with such detail, as will enable the lessee to understand the nature of the breach complained of, so that he may have an opportunity of reme;lying the same before action brought. The lessor is entitled, under the sub-section, to require by his notice that the breach be remedied, if it is capable of being remedied, and also that compensation be made in addition, if there is anything, requiring compensation ; but he is not bound to require compensation, unless he chooses so to do. (r) In Fletcher v. Nokes, the notice was clearly insufficient, and the statement of claim contained no par- ticulars of the breach of covenant to repair in resj)ect whereof the action had been brought, but only a general claim for the sum of £150 damages. North, J., therefore, held also that the jDlaintiff was not entitled even to damages, and dismissed the action with costs. Terms on which When the Court grants relief to a lessee or underlessee, re le gran ed ; -yj^^gi- i\^q statutory provisions now under consideration, it will, in general, be upon the terms of his making good to the lessor the breach of covenant in respect whereof the action is brought, and all reasonable charges and expenses occasioned thereby, including the costs of the action, if any, brought by the lessor to enforce forfeiture for the breach, and also paying to the lessor the amount of any rent which may be in arrear, and his costs of any action brought by the lessee for relief from the forfeiture. Where the relief is sought by an underlessee, by the making of a vesting order under s. 4 of the Act of 1892, (s) a fuither term will, in general, be imposed, namely, that the under- lessee execute a deed containing covenants with reference to the property, subjecting himself and his representatives to the same liability towards the superior lessor as the person through whom he (the underlessee) immediately claims, e.g., if he claims by an underlease to himself from the original lessee, or an assignee from him who had covenanted with the Lease of public (>■) Lock v. Pearce, 2 Ch. (93) 276, C. A. As to the application of this house sab-section to the case of a lease of a public-house, see Fleetwood v. Hull, 23 Q. B. D. 39. (s) North, &c. Co. v. Jacques, 32 W. E. 283 (disapproved by the Court of Ar'peal in Lock v. Tearce, 2 Ch. (93) 276 so far as relates to the sufficiency of a notice given under s. 14 (1) of the Act of 1881.) in ca.se of underlease BR EACH OF COVENANT. 273 original lessor to perform the covenants in the original lease, then he will be bound to enter into covenants involving the like liability during the unexpired residue of the term as the original lessee would have been subject to. (<) A lessee seeking relief against a broach of covenant to Breach of insure, should, before his application, be prepared to show p"^'""''"* t^o that there is then an insurance of the property in question on foot, in conformity with the covenant to insure, and the relief, if given, will probably be upon the terms of his paying the costs of the proceedings, (tt) In Mitchison v. Thomson, (v) the action was commenced to Mitckison v. recover possession of forty-six small houses, for breach o^ ^^''^^^\^^l covenant to repair, and it appeared from the evidence that repair, the houses were in a very dilapidated condition, and that it would cost £600 or £700 to put them into proper repair. No relief was claimed by the statement of defence. Lord Coleridge, C.J., gave judgment for the plaintiff, with a direction that the same should not be enforced if the defendants should give security within a fortnight to the satisfaction of the Master, that they would put the premises into repair ; and, within four months, have the same put into repair accordingly, and to the satisfaction of a person to be agreed upon by the parties, or in case of difference, to be named by his Lordship, the defendants being ordered to pay all arrears of rent, and the costs of the action. Notwithstanding the general terms of the notice required Solicitor's and-, by the Statute, the lessee is bound to make compensation, surveyor's not absolutely and in every case, but only where there is ' something requiring compensation. When, therefore, such a notice had been given by the lessor under s. 14 (1) of the Act of 1881, and had been duly complied with by the lessee, it was held, before the Act of 1892, that the lessor was not entitled to the costs incurred by him in consulting and employing a solicitor or surveyor in or with a view to the preparation of the notice, {yo) These last-mentioned costs, it will be seen, are now provided for by s. 2 (1) of the last- mentioned Act. (0 Wardens of Cholmeley School v. Seioell, 2 Q. B. (94) 914. (m) Compare s. 4 (repealed) of Lord St. Leouurd'a Act 1859 (c. 35). (v) 1 Cababe & Ellis, 72. (w) Skinners' Co. v. KnigU, 2 Q. B. (91) 542, C. A. 274 FORFEITURE OF LEASE. Underlessee ;— The words lessor and lessee in s. 2, sub-s. 1, of the Act of costs and ^gg2 i^ave the same meanings as in s. 14 of the Act of 1881, expenses. « t it • • i i and therefore do not apply as between an original lessor, and the underlessee. Consequently, such a lessor cannot recover from the underlessee the costs and expenses mentioned in such sub-section, (ic) Act of 1892, When a notice has been given by the lessor under s. 14 (1) * r ^^V"~"'^ of the Act of 1881, and has been complied with, e.g., by repairing the property, in the case of breach of a covenant to repair, within the time limited by the notice, the lessee cannot be said to have been " relieved," within the meaning of s. 2, sub-s. 1, of the Act of 1892; and therefore his lessor cannot, in that case, recover from him the costs and expenses mentioned in that sub-section, (y) Court in which It will be observed that, under s. 14 (2) of the Act of proceedings to 1881, where the lessor is proceeding to enforce his right ' of re-entry by action, the lessee must apply in that action in order to obtain relief. The lessor may, of course, bring his action to recover possession under the clause of re-entry, either in the Queen's Bench Division or in the Chancery Division of the High Court, or if neither the rent nor the annual value of the property exceeds £50, in the County Court; and the lessee or underlessee may, if the lessor's action has been brought in the Queen's Bench Division, claim relief against the forfeiture, or a vesting order under s. 4 of the Act of 1892, by defence and counterclaim, (z) But if there is no such action pending, the lessee or under- lessee must, in order to obtain relief, bring an independent action for that purpose. Such an action must be commenced by writ, and not by originating summons, (a) The County Court has no jurisdiction to entertain such an action. (&) Relief refused The rule has been somewhat recently laid down by the after writ of Court of Appeal that there is no power to grant relief under possession. ^^^ ^^ ^^^ sections now under consideration, in any case, after the lessor shall have actually obtained possession of the (x) Nind V. Nineteenth, &c. Society, 2 Q. B. (94) 226, C. A. As to the mnkruptcy; right of the trustee in bankruptcy of a lessee to fixtures removable fixtures. y^y ^jje lessee, under the terms of the lease, see Ex 'parte Gould, 13 Q. B. D. 454. (y) Nind v. Nineteenth, &c. Society, 2 Q. B. (94) 226, C. A. (z) Warden of Cholmeley School v. Sewell, 2 Q. B. (93) 254. (a) Lock V. Pearccy 2 Ch. (93) 274, C. A. (b)Ib. BEE AGE OF COVENANT. 275 property, under a writ of possession, in an action commenced by him. (c) But probably a mortgagee who has been injuriously affected by a judgment by default obtained behind his back, and without his knowledge, against tho owner of the equity of redemption, might be able to have the judgment set aside against him, and to be allowed either to defend the action in the name of the defendant, on such terms as the Court or a Judge may think right, or to inter- vene in the action in the manner pointed out by s. 24 (5) of the Judicature Act 1873. (rf) It cannot be consonant with the principles of Equity that relief should, in such case, be refused to the mortgagee, even when the judgment against the owner of the equity of redemption has been obtained otherwise than by default. A notice under the Acts will be deemed to be sufficiently Service of ,,,.. Ill 1 PIT notice uader served by leaving it at the last known place oi abode or Acts. business, in the United Kingdom, of the lessee, lessor, mort- gagee, mortgagor, or other person to be served, or, in case of a notice required, or authorised to be served on a lessee or mortgagor, by affixing or leaving the same for him on the land, or any house or building comprised in the lease or mortgage, or in the case of a mining lease, left for the lessee, at the office or counting-house of the mine. A notice under the Act will also be deemed to be sufficiently served, if it be sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if the letter be not returned through the post office undelivered, (e) With reference to sub-s. 6 of s. 14 of the Act of 1881, the Barrow v. somewhat recent case of Barrow v. Isaacs (/) should be here licence' to mentioned. In that case, lessees covenanted not to underlet assign not to the premises demised, or any part thereof, without the ^''j^'beir'^'^^ consent in writing of the lessor, " which consent the lessor hereby agrees shall not be arbitrarily withheld, in the case of a respectable and responsible person " ; and the lease contained a power of re-entry on breach of covenant. The (c) Rogers v. Bice, 2 Ch. (92) 170, 0. A. (d) Jacques v. Harrison, 12 Q. B. Div. 165 North, &c. Co. v. Jacques, 32 W. R. 283. (e) See s. 67 of the Act of 1881. (/) 1 Q. B. (91) 417. See also Emtern Telegraph Co. v. Dent, 78 L. T. 713. T 2 276 FORFEITURE OF LEASE. Bates V. Donaldson. lessees underlet part of the premises, but through forgetful- ness on the part of their solicitor, they did not obtain or ask for the lessor's consent. Both the lessees and their under- lessees were respectable and responsible persons; and no injury was done, or likely to be done, by reason of the omission to obtain the lessor's consent. It was held by the Court of Appeal that the omission was not a mistake in respect whereof the Court would grant equitable relief against the forfeiture, and that the plaintiff was entitled to recover possession of the property. But in a later case of Bates V. Donaldson, ( time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or in- junction ; but every matter of Equity on which an injunc- tion against the prosecution of any such 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 Stay of pro- nothing in this Act contained shall disable either of the ceetlings. said Courts from directing a stay of proceedings in any cause or matter pending before it, if it shall think fit." (o) It would appear that the High Court has power, even Power to since the Act came into operation, to restrain persons from ^■^^*^^^''''" V^'^ . " . T Til- ceedings commencing or prosecuting actions abroad; but this power abroad. will seldom be exercised. By the comity of nations, the English Courts assume that foreign tribunals know their own law, and give them credit for deciding fairly between litigant parties, (p) When, however, a foreigner has entered an appearance to an action commenced in an English Court, he thereby gives jurisdiction to the English Court to restrain him from proceeding to litigate the same matter in the Courts of his own country. Even this is a matter of dis- cretion ; and the jurisdiction will only be exercised to prevent a person from being harassed by double proceedings for the same cause of action. It was an old practice for the Court of Chancery to put a Double pro- plaintiff who sued in respect of the same cause of action both jl'^g'^g",^' '"'^ at Law and in Equity, to his election as between the two cause ;— (o) See Wright v. Redgrave, 11 Ch. Div. 24. (p) McHenry v. Lewis, 22 Ch. Div. 400; Daickins v. Simoneiti, 29 W. R. 228, C. A. ; Fletcher v. Rogers, 27 ih. 97, C. A. ; South African Bepublic v. La Compagnie, &q. 1 Cli. (98) 1 90 284 INJUNCTIONS. Proceedings in Scotland, etc. ; — Judg- ments Exten- sion Act. Injunction against winding up proceedings. Injunction by Judge sitting in bankruptcy proceedings ; because it was considered, 'prima facie, vexa- tious to bring two actions, or suits, where one would be sufficient. But where one action or suit was commenced abroad, and the other in England, a special case had to be made, showing that the double proceedings were, in fact, vexatious, having regard to the consideration that the remedies as well as the procedure might be different in the two countries. (5) The like rules are now in force in the High Court. They formerly applied to proceedings in Ireland and Scotland ; but probably no such special case of vexation would now require to be made where one of the two proceedings is in England, and the other in Ireland or Scotland, because the effect of an Irish or Scotch judgment, when registered under the Judgments Extension Act, 1868 (c. 54), is the same as that of an English judgment, (r) The High Court has also jurisdiction to restrain by iajunction a person claiming to be a creditor of a company from presenting a winding up petition, where the debt is bond fide disputed, and the company is solvent, (s) By s. 65 of the Bankruptcy Act, 1869 (c. 71), the Chief Judge in Bankruptcy had all the powers of a Judge of the Superior Courts of Common Law and of a Judge of the Court of Chancery ; and by s. 66, every Judge of a local Court of Bankruptcy had, in addition to his powers as a County Court Judge, the powers and jurisdiction of a Judge of the Coui-t of Chancery ; and, therefore, the Chief Judge, or a County Court Judge exercising jurisdiction in bank- ruptcy, had power to restrain even an action at Law in the High Court. The power to grant such an injunction has now been abolished; for by s. 93 of the Bankruptcy Act 1883 (c. 52), the jurisdiction of the London Bankruptcy Court has been transferred to the High Court; and by s. 100, a County Court has, for the purpose of its bank- ruptcy jurisdiction, all the jDOwers and jurisdiction of the High Court. Inasmuch, therefore, as one branch of the High Court has now, no jurisdiction to grant an injunction to restrain proceedings in tinother branch, it is clear that a County Court Judge has no power, either in the exercise of (q) McHenry v. Lewis, supra ; Peruvian, &c., Co. v. Bocliwdldl, 23 Ch. Div. 225 ; Eyman v. Helm, 24 ib. 531 ; Mntrie v. Binney, 35 ih. 614. (r) Re Loiv, 1 Ch. (94) 157; Foniaine's Case, 41 Ch. Div. 118. (s) New Travellers^ Chambers v. Cheese, 70 L. T. 271. JURISDICTION. 285 his jurisdiction in bankruptcy, or otherwise, to restrain any proceeding in the High Court, (t) By s. 2 of the Statute 21 & 22 Vict. (c. 27), commonly known Damages in as " Lord Cairns Act," jurisdiction was given to the Court of junctioir'etc • Chancery to award damages to a party injured, either in —Lord Cairns addition to or in substitution for an injunction, or for specific ^'^^' performance of a contract. This Act was passed in order to enable a plaintiff in Equity to obtain damages, without being bound to have recourse to a Court of Common Law ; and it was repealed by the Statute Law Eevision Act, 46 & 47 Vict. c. 49 ; but by s. 5 of this repealing Act, the repeal is not to affect, inter alia, any principle or rule of law estab- lished or confirmed by any of the repealed enactments. Since the Judicature Acts, however, each Division of the Court has full power, apart from Lord Cairns Act, to grant relief in the shape of either an injunction, or specific per- formance, on the one hand, or damages, on the other. The Act is now treated as being still practically in force ; (it) but it was not intended to alter the principle which guided the Court in granting or withholding its aid by way of injunction, or specific performance. It was only intended to provide for special cases, e.g., cases of nuisance, where the damage was trivial, or only occasional, where a plaintiff's conduct was vexatious or oppressive, or where he had so conducted himself, that it would be unjust to give him more than pecuniary relief, (v) When the Legislature has pointed out a special tribunal Special Icgisla- for determining disputes, no other Court has, as a rule, ,sd^„oi Board' power to restrain the proceedings before it ; (?«) but Keke- Election, wich, J., in a recent case, (x) granted an injunction to restrain a School Board from summoning or holding a meeting for the election of a new member of their body, in the plaintiff's room, notwithstanding that the plaintiff had a specific remedy by means of a writ of quo warranto ; and Jessel, M.E., (y) in an action to restrain the continuation of a trespass on the plaintiff's land, which the defendant, an (0 See Re Barnett, 15 Q. B. Div. 169; also s. 10 of the Act of 1883; Ee Mackintosh, 13 Q. B. D. 235. (m) Sayers v. Collyer, 28 Ch. Div. 108. (v) Shelfer v. City, &c., Co., 1 Ch. (95) 317. (w) Evans v. Manchester, &c.. By. Co., 36 Ch. D. 626 ; Grand, &c., Co. v. Hampton U. D. Council, 2 Ch. (98) .331. (x) Bichardson v. Methley School Board, 3 Ch. (93) 510. (y) Medley v. Bates, 13 Ch. D. 498. 286 INJUNCTIONS. adjoining landowner, attempted to justify tinder the pro- visions of the Land Drainage Act, 1861 (c, 133), granted an injunction to restrain proceedings before the Magistrates in Petty Sessions to obtain an order, under s. 76 of that Act, to enable him to make a drain through the plaintiil's land. In this case the defendant had not given the proper notices requisite under ss. 72, 73, for giving jurisdiction to the ]\Iagistrates ; and his Lordship held that he had, under the Judicature Act, 1873, the same power to grant a pi'ohibition, as a Judge of the Superior Courts of Common Law had before that Act, and that it was "just and convenient," within the meaning of s. 25, sub-s. 8, thereof set forth at the beginning of this Chapter, that he should grant an injunction instead of a prohibition. In this latter respect the decision is somewhat at variance with the decisions above referred to that this sub-section confers no power to grant an injunction on the High Court which the Court of Chancery did not previously possess. But the same learned Judge, in a subsequent case, (z) explained that his earlier decision was based upon the principle of deciding, in one action, all matters in question between the parties, rather than putting them to the expense of taking separate proceedings. Temporary Prior to the Judicature Acts, the Court of Chancery often intervention ; intervened to protect a plaintift by injunction pending the —Waterworks . , „ i , • w o i • / ±- j. Clauses Act. trial of a legal right, buch intervention was temporary only ; and it would appear that the High Court has now the like power. Thus it was held by Chitty, J,, in Hayicard v. E. London Waterworks Co., (a) that notwithstanding the statu- tory remedy provided by the Waterworks Clauses Act, 1847, 0. 17, s. 68 (for the settlement by two justices of disputes as to the annual value of a tenement supplied with water by a water company), and the special remedy by way of penalty, given by s. 43 of the same Act, the High Court has power, pending proceedings for settling a dispute as to the value of the tenement, to restrain such a company by injunction from cutting off the supply of water ; but that the plaintiff must, in such case, undertake to commence or prosecute proceedings under s. 68 with due speed. Decisions of Where a quasi judicial body is established by Act of flwast judicial Parliament, their bond fide decisions arrived at after due and body. (z) Stannard v. V. of St. Giles, 20 Ch. Div. 19G. (a) 28 Ch. D. 147. JURISDICTION. 287 proper inquiry, are not subject to be reviewed by the High Court, (h) The Court has power to grant an injunction to restrain Club;— «xpul- the committee of a club in which the members have *'"" f rights of property, from expelling a member, (1) in cases where the rules of the club have not been . observed ; (2) where the conduct of the committee has been contrary to the principles of natural justice ; and (3) where the decision complained of has not been bond fide arrived at ; but the Court will not act as a Court of Appeal from the decision of any committee, nor will it grant an injunction in the case of a proprietary club in which the members have no rights of property. In the case of the committee of such a club acting in an irregular manner, the member aggrieved will be left to his remedy in damages, (c) In addition to the cases above mentioned, the reader will Cases in which find in the other Chapters of this Work statements of the interfere by circumstances under which the Court will grant an in- iuj unction, junction as incidental or ancillary to the heads of equitable relief therein treated of respectively. It is proj)osed, in the following pages of this Chapter, to treat of other cases in which an injunction will be granted in aid of legal rights, at the same time dealing with such equitable rights as may properly require to be noticed in connection therewith. Section II. — Building Covenants. The Court of Chancery would grant an injunction to Inadequacy of restrain the breach of a restrictive covenant or agreement ^° ^' as to building, the jurisdiction being founded on the inadequacy of the remedy at law. The High Court has, of Damage need course, the like jurisdiction ; and a plaintiff is not bound to °" ^ ^'^'^^ * prove damage, in order to entitle him to such equitable relief, (d) When an action to restrain the breach of such a covenant Covenants is brought, not against the covenantor himself, but against JanT'— uoticc. a person claiming under him, it is not essential that the (h) Allbutt V. Medical Council, 23 Q. B. Div. 400 ; Leeson v. Medical Council, 43 Ch. Div. 366. (c) Baird v. Wells, 44 Ch. D. 661 ; Finch v. Oal.-e, 1 Ch. (96) 409, C. A. Association ;— See this latter case as to the right of a member of a voluntary association j.jght t^ retire to retire therefrom. from, (d) Collins V. Castle, 36 Ch. D. 243; Leech V. Schwtder, 9 Cb. 4G3; Lord Manners v. Johnson, 1 Ch. D, 673. 288 INJUNCTIONS. Tnlk V. iloxkay. ^Affirmative covenant ; — repairs, etc. Covenant run- ning with reversion ; — *' assigns." covenant slioultT be a covenant running with the land ; hut the defendant will be liable, under the covenant, if he took the property with notice thereof. In the leading case of Tulk V. Moxliay, (e) the plaintiff, the owner in fee of the vacant ground and several of the houses in Leicester Square, in the year 1808, sold the fee simple of the vacant ground to one Elms, who, by the deed of conveyance, covenanted for himself, his heirs and assigns, with the plaintiff, his heirs, executors, and administrators, inter alia, to keep and main- tain the ground in its then op.en state, as a square, garden, and pleasure ground, uncovered with any buildings ; and that the inhabitants of the Square, tenants of the plaintiff, should, on payment of a reasonable rent, have keys, and the privilege of admission therewith into the square, garden, and pleasure ground. The defendant afterwards purchased the vacant ground, with notice of the deed of conveyance of 1808. Upon bill filed by the plaintiff, who still remained owner of several of the houses in the Square, it was held by Lord Cottenham, L.C., that though the covenant did not run with the land, yet as the defendant purchased with notice of the covenant, he was bound thereby, and his Lordship refused to dissolve an injunction which had been granted by Lord Langdale, M.R., to restrain the defendant from con- verting or using the ground for any other purpose than as a square, garden, and pleasure ground. His Lordship observed that in such a case, the price would be affected by the covenant, and that nothing could be more inequit- able, than that the original purchaser should be able to sell the property the next day after the sale, at a greater price, in consideration of the assignee being allowed to escape from the liability which the purchaser had himself undertaken. The doctrine established by this case is limited to restrictive stipulations ; and will not be extended so as to bind in Equity a purchaser taking with notice of a covenant to expend money on repairs or improvements of the purchased property ; (J) and the Court will, even in the case of negative covenants, be very careful not to imply restrictions, unless it is satisfied that they were fairly within the contemplation of (e) 2 Ph. 774. See also Ga> • n .. .. .• screen, to prevent him from acquiring a presciiptive right to light under the Act ; and it would appear that a railway company has as much right to take such measures as a private landowner. (Jc) Unity of A right to the access and use of light to a house or other possession. building cannot be acquired iinder s. 3 of the Prescription Act, 1832 (c. 71) during the time when the owner, or his occupying tenant, is also occupier of the land over which the right would extend. The running of the statutory period Watercourse, Is suspended during such unity of possession. (Z) A like etc. ig) F.cdesiastical Commrs. v. Kino, 14 Ch. Div. 213. ()t) Lazarus v. Artistic Photngraphic Cv., 2 Ch. (97) 21.5. (t) Lanfranchi v. Mackenzie, 4 Eq. 421. See also Corhett V. Jonas, 3 Ch. (1)2 ) 146 ; Leech v. Schweder, 9 Ch. 463. ( j) ColUs V. Laugher, 3 Ch. (94) «59. (k) Bonner v. G. W. By. Co., 24 Ch. Div. 1. (/) Ladyman v. Grave, GCh. 763. OBSTRUCTION OF LIGHT. 315 rule applies under s. 2 to a watercourse and other easements of a like kitd. (w) A notion at one time prevailed that when a plaintiff's Angle of 43 house WHS on the opposite side of a street to that of the "^Si^es. defendant's, the Court would not interfere Ly injunction if the defendant's buildings did not, or would not, when com- pleted, exceed a height which would subtend an angle of forty-five degrees at the foot of the windows of the plaintiff's house. This supposed rule appears to have been based on the provisions of s. 85 of the Metropolis Local Management Act, 1862 (c. 102), which has been repealed by the London Building Act, 1894 (ccxiii.), and which, in a street less than fifty feet wide, prevented any ordinary building from being erected higher than the width of the street, withDut the consent of the Board of Works. But in Parker v. First Parker y. First Avenue Hotel Co., (n) Cotton, L.J., said, " The idea seems to ^J''''"'^ ^"^'^^ have ari^en from a reference to the Building Act [sic], which was not intended to deal with questions of light, but to determine what was a reasonable width of street, having regard to the height of the houses on both sides, and as regards air and eveiy thing else. But if it is considered that there is any law, or any inference of fact that this angle is sufficient, the sooner that idea is got rid of the better. It must be a question of fact in each case." The present rule Amount of is that the Court will, in absence of special circumstances, gnUtle'tikintiff grant an injunction where the effect of the defendant's to injunction ; building operations would be such as to inflict upon the plaintiff material injury, entitling him to substantial damages, or in other words there must be a substantial deprivation of light sufficient to render the occupation of the house uncomfortable, or to prevent the plaintiff from carrying on his accustomed business on the premises as beneficially as he had formerly done ; (o) and in cases of doubt as to the amount of injury, the tendency of the recent decisions is, as already stated, with reference to cases of nuisance generally, rather in favour of granting an injunc- (m) Outram v. Maude, 17 Ch. D. 391. (n) 2i Ch. Div. 289. (o) Ecclesiastical Commrs. v. Kino, 14 Ch. Div. 224; Martin v. Price, 1 Ch. (94) 285, C. A.; Shelfer v. City, rf-c, Co., 1 Ch. (95) .811, C. A. Aynsley v. Glover, 18 Eq. 5*4, 10 Ch. 283; Staight v Burn, 5 Ch. 1()3 Dyers' Co. v. A7m/, 9 Eq. 488 ; Dent v. Auction Mart Co., 2 Eq. 238 Newson v. Pender, 27 Ch. Div. 43. 816 INJUNCTIONS. in case of covenant. Obstruction of view. Implied grant of right to light. Damages for threatened injury. Right to mandatory injunction. tion, than of leaving a plaintiff to his remedy in the shape of damaojes. Where, however, a person enters into a special covenant preventing hiin from interfering with the access of light or air to an adjoining tenement, it is not incumbent upon him to prove actual damage in order to obtain an injunction to restrain a breach of the covenant ; and the like rule applies to a covenant to prevent the obstruction of a view. In the latter case there is no remedy either legal or equitable, in absence of express agreement, (p ) If the owner of two plots of land on one of which a house has been built, sells the latter plot with the house, and retains the other, there is an implied obligation on liis part towards the purchaser not to interfere with the lights of the house which he has sold, even though such lights are not ancient lights. This right differs from a right by pre- scription; and it is based upon the principle that a person cannot derogate from his own grant; for the grant of a house simpliciter carries with it a right to the lights and other appurtenances belonging thereto. The amount of light which thus passes, is, in the absence of special bargain, such only as is sufficient for the ordinary purposes of business or residence in the locality in which the property is situated, (q) The question whether the Court has jurisdiction to award damages in lieu of an injunction in a case of threatened injury is by no means free from doubt, (r) But when a plaintiff commences in due time an action to restrain the obstruction of light, or to enforce some other right of a like kind, and the defendant, in the meantime, continues the obstruction, by erecting expensive buildings the Court will not, as a rule, in case the plain tiif should at the trial establish a case for a perpetual injunction, compel the latter, under Conv. Act, 1881, s. 6 (2), Constructive notice. (p) Lee^h v. Srhweder, 9 Ch. 474 ; Lord Manners v. Johnson, 1 Ch. D. 673; Collins v. CaMle, 36 ib. 254 ; Wood v. doper, 3 Ch. (94) 676. (q) Corbett v. Jonas, 3 Ch. (92) 137; Phillips v. Low, 1 Ch. '92)47; Wilson V. Queen's Club, 3 Ch. (91) 522; Broomfield v. Williams, 1 Ch. (97) 602, C. A.: Russell v. Watts, 10 App. 590; Beddington v. Atlee, 35 Ch. Div. 317; Myers v. Catterson, 43 ib. 470; Ellis v. Manchester Carriage Co., 2 C. P. D. 13 ; Ma.?ter v. Hansard, 4 Ch. Div. 718. See Broomfield v. Williams also as to the eifect of s. 6 (2) of the Conv. Act, 1881. Upon the question of constructive notice of a right to the access of liglit, see Allen V. Sechham. 11 Ch. Div. 790. (r) Martin v. Price, 1 Ch. (94) 284, C. A. OBSTRUCTION OF LIGHT. 317 Lord Cairns' Act, 1858, c. 27, s. 2, to accept damages in lieu of an injunction, (s) The Court has sometimes allowed a Undertaking to motion for an interlocutory injunction -to stand over till the P" °''^^' trial, on the terms of the defendant undertaking to abide by any order the Court may make at the trial, as to pulling down or altering any buildings or works erected by him. Such an undertaking is not necessary in order to give juris- diction to the Court to grant a mandatory injunction at the trial. But in Smith v, Day,(^t) James, L.J., said that he preferred taking the undertaking, as being evidence of a contract entered into by the defendant with the Court. On the other hand where a plaintiff had made no complaint Delny in of a defendant's new buildings for seven months, during; app'y'i^g 'o'' * _ 'to interlocutory which time the defendant had laid out large sums of money injunction. thereon. Wood, "V.C., made a decree awarding damages instead of a mandatory injunction to which, but for the delay, the plaintiff would have been entitled, (u) It is not often that the Court will grant a mandatory When iniunction upon an interlocutory application ; but it may do "i-y^^atoiy TPT e 1 ■ 1 11 lujunction SO, where a defendant alter being served with the notice of granted before motion in an action to restrain him from obstructing ancient t^'i^'- lights, has put on an extra number of workmen, with a view to render an interlocutoiy oider practically useless, (v) By the Statute 3 & 4 Will. 4, c. 42, s. 2, executors or 3 & 4 Will. 4, administrators may, within a year after the death of their '^'i; ' ^■.,' \ , action alter testator or intestate, and notwithstanding the maxim actio death of ^personalis moritur cum persona, bring actions for injury to the P^i'so'^ causing real estate of such testator or intestate committed within six calendar months before his death ; and a like period of six months is by the same section limited in respect of injury to property committed by a deceased person. It has somewhat recently been held that the continuance of an obstruction to ancient lights is an " injury committed " in respect of property wiihin the meaning of this section, giving rise to a cause of action de die in diem, and therefore an action in respect of the continuance of the obstruction in the lifetime (s) Krehl v. Burrell, 11 Cli. Div. 147 ; Greenimod v. Hornsey, 33 Ch. D. 471 ; Scott V. Pape, 31 Ch. Div. 5G3. Compare Lady Stanley v. E. of Shrewsbury, 19 Eq. 616. (0 13 Ch. Div. 6.51. See also Newson v. Pender, 27 Ch. Div. 43. (m) Senior v. Pawson, 3 Eq. 330. See also Lady Stanley v. E. of Shrews- bury, 19 Eq. 616 ; Smith v. S., 20 ib. 500 ; Gasldn v. Balls, 13 Ch. D. 324. (v) Von Joel V. Hornsey, 2 Cli. (95) 774, C. A. 318 INJUNCTIONS. of the person who caused it, may be maintained against his executors or administrators, notwithstanding that the ob- structing building was completed more than six calendar months before his death, (w) Chaste]! V. Ackland ; — erection of building obstructing - current ot' air Section VIII. — Access of Air. No implied It would appear that there is not, on the conveyance of grant as to air. ]g^^^^ jjj general terms, and not fur any specific purpose, an implied grant of the right to tjie passage of air ; but the grantor of land conveyed to the grantee for a particular purpose, is, in such case, under an obligation to abstain from doing anything on the adjoining property belonging to liim, which would prevent the land granted from being used for such purpose, (x) In Chastey v. Ackland, (y) it was held by the Court of Appeal, reversing the decision of Cave, J., that though a person may establish a right to have an uninterrupted current of air over another person's land in some definite direction, to some particular place, by immemorial user, or by user which may have had its origin in some lost grant or agreement, binding the owner of the servient tenement in favour of the owner of the dominant tenement, no one has the right, in absence of long enjoyment, or some grant or agreement, to prevent his neighbour from building on his own land, although the consequence may be to diminish or alter the flow of air over it, to land adjoining. But on appeal to the House of Lords, (z) several of the Law Lords expressed their dissent from the decision of the Court of Appeal, as well as the reasoning on which it was founded. In the course of the reply of the appellant's counsel, Lord Halsbnry, L C, expressed an opinion to the effect that their Lordships might possibly grant a mandatory injunction to restrain the obstruction of the free passage of air, so far as related to part of certain buildings erected by the defen- dant ; and the parties thereupon agreed to a comj^roniise of the case. (lo) Jmlcs V. CJifden, 1 Ch. (97) 694. As to this section generally, see Be Williams, 54 L. T. 105. (x) Aldin V. Latimer Clark, 2 Ch, (94) 437. (y) 2 Ch. (95) 389. (2) A. C. (97) 155. ACCESS OF AIR. 319 The Prescription Act, 2 & 3 Will. 4, c. 71, s. 2, does not Prescription apply to air. (a) ^'^^ ;— air. It cannot be doubted, however, that a person may claim Access of air by prescription a right to the free access of air to a house by ^ «ehnite '' r r b _ J aperture. a definite aperture which has existed for more than twenty years. Thus, in Bass v. Gregory, (b) the plaintiff, who had for forty years enjoyed the passage of air from a cellar in his house which opened through a tunnel into a neighbour's land was held to be entitled to an injunction to prevent the obstruction of such passage of air, and to damages. Where a reversioner commences an action for damages. Action by or for an injunction in respect of an injury to real estate, i"^^'^'"*'"'!^^'- without joining the perstm in possession as a co-plaintiff, it is necessary for him to prove an injury of such permanent nature as to be necessarily injurious to his reversion, e.g., structural injury to a house or other building, (c) This Weekly rule applies to the landlord of property held on weekly ^"'^"'-'^^• tenancies, (c?) Section IX. — Libel injurious to Trade. The Court of Chancery had no power to grant an injunction to restrain the publication of a libel, nor of any other act of a criminal nature ; nor had the Courts of Law any such power prior to the passing of the Common Law Procedure Common Law Act, 1854, c. 125, by s. 82 whereof power was given to the ^'j,'^''*' ^^^'*' Court or a Judge, to grant a writ of injunction to restrain the repetition or continuance of a wrongful act, or the breach of a contract. It was not till some years after the passing of the Judicature Acts, that this jurisdiction was exercised, either in the Chancery or in the Common Law Divisions, to restrain the publication of a libel ; but the jurisdiction has of late years been exercised somewhat frequently in the Chancery as well as in the Queen's Bench Division ; and it is now settled that the Court has jurisdiction to restrain by injunction the publication of a libel injurious to a person's trade or business. Thus in Thorleys, dc, Co. v. Massam, (e) T/wrky's, 4-c., Cu. V. Mussain ; (a) Harris v. De Pinna, 33 Ch. Div. 259 ; Wheaton v. Maple, 3 Ch. ailverlise- (93) 48. ments. (b) 25 Q. B. D. 481. (c) Sheifer v. City, &c., Co.. 1 Ch. (95) 318-320, C. A.; May/air & Co. V. Johnston, 1 Ch. (94; 516; Mott v. Shoolbred, 20 Eq. 22. (d) Cooper v. Crahtree, 20 Ch. Div- 5S9. (e) H Cli. Div. 763. 320 INJUNCTIONS. Proof of special damage. Trade puff. When inter- locutory injunction granted. Monson v. Ttissauds ; — libel not aliect- ing trade. Slanderous statements. Advertising plaintiH's goods. the defendant had published advertisements stating, inter alia, that he ah)ne was possessed of a secret for the prepara- tion of Thorley's food for cattle, and that the plaintiffs were seeking to foist upon the public an article which they pretended was the same as that manufactured by the late Joseph ThorIe3% whose business the plaintiffs had purchased ; and the judgment of Malins, V.C, granting an injunction, against, inter alia, the publication of the advertisement, was affirmed by the Court of Appeal. No action for damages could successfully have been commenced before the Judicature Acts, in respect of a libel of this kind, in absence of proof of special damage ; and therefore, in absence of such ])roof, no injunction will now be granted in such case, nor where the alleged libel consists of a mere trade puff, whereby one tradesman states that his goods are superior to those of all rival tradesmen. Other- wise, the Court might, at the trial of an action, be bound to inquire, as observed by Lord Herschell, L.C., in White V. Mellin, (/) " whether this ointment, or this pill better cured the disease which it was alleged to cure — or whether a particular article of food was, in this respect or that, better than another." Nor will the Court grant an interlocutory injunction to restrain the publication of an alleged libel, except in the clearest cases ; that is to say in cases in which, if a jury were to find the matter complained of not to be libellous, the Court would set aside the verdict, as unreasonable, {g) In Monson v. Tussauds (Ji) Lord Halsbury, and Davey, L. J., expressed an opinion to the effect that the jurisdiction to grant injunctions in cases of libel is not confined to libels affecting a trade or business, and in an earlier case of Hermann Loog v. Bean, (i) the judgment of Pearson, J., granting an interlocutory injunction retraining a discharged manager of the plaintiff from making slanderous statements, oral as well as written, injurious to the reputation or business of the latter, was affirmed by the Court of Appeal. Stirling, J., recently refused to grant an injunction to restrain a trader from advertising for sale goods of a rival C/) A. C. (95) 165. (g) Bonnard v. Ferryman, 2 Cb. (91) 269; Collard v. Marshall 1 Ch. (92) 571 ; Liverpool &c., Assn. v. Smith, 87 Ch. Div. 170. (h) 1 Q. B. (94) 671. (0 26 Ch. Div. 306. See also RatcUffe v. Evans, 2 Q. B. (92) 524. PICKETING. 321 trader at less than cost price, to the damage of the latter. (/) By the Conspiracy and Protection of Property Act, 1875, Conspiracy (c. 86) 8. 7, siib-s. 4, a penalty is imposed upon " every ^ \\^\ "^' person who, with a view to compel any other person to abstain from doing, or to do any act which such other person has a legal right to do, or abstain from doing, wrongfully, and without legal authority, watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place." In Lyons v. Wilkins (k) it was held by the Court of Appeal, Lyons v. that the picketing of the works or place of business of an Wd/ans ;— r, . . , picketing. employer, for the purpose of persuading either masters or men not to work for him is a "watching or besetting" within the meaning of this sub-section, and an interlocutory injunction was granted to restrain the defendants, the officers of a trade union, and their agents, from watching or besetting the plaintiffs' works, for the purpose of persuading, or otherwise preventing persons from working for him, or for any purpose except merely to obtain or communicate information ; and also to restrain the defendants from pre- venting S. (a sub-maker employed by the plaintiffs), or any other persons, from working for the plaintiffs, by withdraw- ing his or their workmen from their employment. Section X. — Infringement of Patents. The right of the Crown to grant, by Letters Patent, the sole privilege to work or make any manner of new manufac- tures to the first and true inventors thereof, was reserved by s. 6 of the Act of 21 Jac. 1, c. 3, for the abolition of mono- polies. Having regard to the terms of this Act, a person can Patent not only obtain a patent for a manufacture, and therefore not for gi"anted for \ , 1 , r • • 1 ™ere principle. a mere principle ; but he may have a patent for a principle coupled with a process by which the principle can be carried into effect ; (I) and he may also have a patent for a new com- bination of known mechanical contrivances, producing a new result. (j) Ajello V. Worsley, 1 Ch. (98) 274. (k) 1 Ch. (9(J) 811 ; S. C. on Trial, 46 W. R. 461. (I) Badische, &c. v. Levinstein, 24 Ch. D. 156; 12 App. 710; Lane-Fox V. Kensington, &c., Co., 3 Ch. (92) 424, C. A. Y 322 INJUNCTIONS. Patents, &c., Acts, 1883- 1888. Law Officers' Rules. Tho law of Intents is now regulated by the Patents, Pesigns, and Trade Marks Act, 1883 (c. 57), as amended by the Acts of 1885 (48 & 49 Vict. c. C3) ; 1886 (49 & 50 Vict. c. 37) ; and 1888 (51 & 52 Vict. o. 50); and the practice in relation to the application for and granting of patents is Patent Rules, regulated by the Patent Eules 1890 and of February and 1890, 1892. Jn\y, 1892. The proceedings in relation to appeals to the Law Officers of the Crown are regulated by the Law Officers' Kules, made under s. 38 of the principal Act. 1883 Act, s. 5 ; By s. 5 of the principal Act, an application for a patent — speci cation. ^^^^^ -j^g accompanied by either a provisional or a complete specification, showing how the process can be carried into effect ; and where a provisional specification is filed, the applicant is, by s. 8 (amended by s. 3 of the Act of 1885) bound to deliver a complete specification, within nine months from the date of the application. By ss. 18-21 (as amended by s. 5 of the Act of 1888"), special provisions are made for the amendment of the specification, by way of disclaimer, correction or explanation, (m) In order that a patent may be good, it is essential that the invention thereby claimed should be (1) new, (2) tliat it Specification ; ghould be useful, and (3) that it should be so described in the of. specification as to enable a workman of ordinary skill, pos- sessed of knowledge in the particular industry or subject, to manufacture the same. (?i) Moreover if the specification seeks to cover more than is actually new and useful, it vitiates the patent, rendering it inefi'ectual, even to the extent to which it might otherwise have been supported, (o) A patent will also be invalid, if the complete specification is for an invention different from that described in the provi- sional specification, or if the patent was granted for an in- (m) See Andrew v. Crossley, 1 Ch. (92) 492, C. A. ; Be DelwicJc, 2 Ch. (96) 705. (n) Badische, &c. v. Levinstein, 12 App. 712-716. See S. C. upon the question of novelty generally, also Patterson v. Gas, d'c, Co., 3 App. 239; Frearson v. Loe, 9 Ch. D. 48 ; United Telephone Co. v. Harrison, 21 Ch. D, 720 ; Harris v. Rothwell, 35 Ch. Div. 416 ; Lane-Fox v. Kensington, &c., Co., 3 Ch. (92) 424, C. A. Combination. (o) Hill v. Thompson, 3 Mer. 622; Clarh v. Adie, 2 App. 315. As to tho sufficiency of a specification for the combination of known mechanical contrivances, ^ee Froctor v. Bennis. 36 Ch. Div. 740 ; and as to the suffi- ciency of a specification generally, Frearson v. Loe, 9 Ch. D. 48 ; NiMall V. Hurgreaves, 1 Ch. (92) 23, C. A. ; Anglo-American, &c., Corpn. v. King, Revocation: A. C. (92) 3()7 ; Lane-Fox v. Kensington, &c., Co., supra. As to the revo- cation of patents, ss. 26, 44 (9), of the principal Act ; Be Deeley, 1 Ch. (95) 687, C. A. ; Deeley v. Pefkcs, A. C. (96) 496. Amendment of specifica- tion. Novelty, Utility. Covering too much. Variance between com- plete and pro visional specification. Amendment; — different invention. PATENTS. 323 vention different from that for which the patentee claims protection, after having amended his patent by way of disclaimer, (^j) Prior to the passing of the principal Act, a patent did not 1883 Act, s. bind the Crown ; (q) but now by s. 27, sub-s. 1 of that Act, '^'^ (^^'~ . , •. • . T i^i ^ ., ,,111, ,1 . 1 patent to bmJ it IS enacted tnat " a patent shall have, to all intents, the Crowu. like effect as against Her Majesty the Queen, her heirs and successors, as it has against a subject ; " and by sub-s. 2, the of&cers of any department of the service of the Crown are entitled to use the invention for the services of the Crown, on terms to be agreed upon, or in default of agreement, to be settled by the Treasury, after hearing all parties interested. S. 39 of the principal Act (as amended by s. 3 of the Act Industrial, of 1886) provides that the exhibition of an invention or etc., exhibition. design at an industrial or international exhibition shall not, upon the compliance with the conditions therein stated, prejudice the rights of the inventor or proprietor thereof. S. 43 contains a provision to the effect that a patent shall s. 43 ; not prevent the use of an invention for the purposes of .^°''';'S."/*'-'^'5«'^ navigation of foreign vessels in British waters ; and s. 44 waters enables an inventor of improvements in instruments ors.44- assio-n- munitions of war, and persons claiming under him, to assign ment to Secre- te the Secretary of State for War, on behalf of Her Majesty, ^^'"^ ^"'^ ^'''" the benefit of his invention, upon terms therein specified, and the section contains certain special provisions in relation to inventions the benefit whereof has been so assigned. The form of a patent given in the First Schedule to the Form of Act of 1883, entitles the patentee and his agents or licensees P^*^"^** to niake, use, exercise, and vend the invention the subject matter thereof, within the United Kingdom of Great Britain and Ireland, and the Isle of Man, during the term of fourteen years from the date of the patent. It is suflScient, on the Novelty within question of novelty, if the invention be new within the J!?^*^'^ United Kingdom ; and the fact that it has been communi- ° cated by a foreigner to an Englishman is not sufficient to invalidate the patent, (r) (p) Nuttall V. Hargreaves ; Lane-Fox v. Kensington, &c., Co., supra. (g) Dixon V. London, &c., Co., 1 App. 632. (r) Rolls V. Isaacs, 19 Cli. D. 275. As to the circumstances under which Prolongation a patentee may obtain a prolongation of his patent, after the expiration of of patent, the fourteen years, see s. 2o of the principal Act, Re Newton, 9 App. .'')92 ; Re Southbij, A. C. (91) 432; Re Semet, A. C. (95) 7«; Re Bower-Bat f, ih. Y 2 " 324 INJUNCTIONS. The filing of a sufficient specification is that which the patentee gives to the public, in return for the privilege which he receives ; and he thereby makes the invention Insufficiency of puhlici juris. The penalty for non-compliance with this specification; condition, e.g., failing by his specification so to describe the invention as to enable a skilled workman to practise the same, is (subject to the provisions of the Acts as to amend- How far ment), forfeiture of his patent. But though the specification specihcation ^^ ^^ earlier patent may be insufficient in this respect, and publication of thereby render the patent void, it may amount to a prior an invention, puijiication of an alleged invention, the subject of a sub- sequent patent. In a case of this kind the question whether the specification of the earlier patent was sufficient to disclose the invention to the public, does not turn upon the sufficiency or insufficiency of the specification for the guidance of a skilled workman, but the proper test is whether the description was sufficient to convey to men of science, and employers of labour, such information as would enable them, without any exercise of inventive ingenuity, to understand the invention, and to give to a workman the specific and necessary directions for the manufacture of the subject-matter thereof which the specification may Subject or may not have communicated, (s) If, however, it would matter of \,q necessary, notwithstanding the information so given, to uit ei pa en . .^^^^ further experiments, and to exercise further inventive ingenuity, in order to make the invention efiective, that would afibrd room for another valid patent, (f ) Proof of in- In order to obtain an injunction it is incumbent on a fringement. plaintifi" to prove not only the validity of the patent, and his title thereto, but also that the defendant has infringed or threatened to infringe the same, (u) What amounts Upon the general question of infringement of a patent, to an infringe- Bowen, L.J., observes in HocJding v. E., (v) " You must ask yourself whether the substance and pith of the invention has been taken. A mere addition to the original machine 675 ; Re Hophinson, A. C. (97) 249 ; Re Currie, A. 0. (98) 347 ; Re Parsons, A. C. (98) 673. As to the practice in such cases, see Order in Council of the 26th Nov. 1897 (W. N. 11 Dee. 1897, p. 343); and as to the admissi- Revocation ;— bility of evidence on a petition for the revocation of a patent, Re Haggen- evidence. mncher, 2 Ch. (98) 280. (s) Anglo-American, &c., Corpn. v. King, A. C. (92) 378. (t) Eiil v. Evans, 4 D. F. & J. 300 ; Murray v. Clayton, 7 Ch. 570. (m) Frearson v. Loe, 9 Ch. D. 48 ; Proctor v. Bayley, 42 Ch. Div. 390. {v) 4 Pat. Cas. 442. See also Dudgeon v. Thomson, 3 App. 44. ment. PATENTS. 325 will not prevent the new machine from being an infringe- ment; nor will diminishing or sixbtracting this or that part of the original machine, necessarily prevent an infringement of it from taking place." A clumsy imitation of a patented machine or article may amount to an infringement, although it would not have been an anticipation of the invention, (w) Moreover, in Wright v. Hitchcoch, (x) it was held by the Wright v. Court of Exchequer that the buying and selling by the j j.j^jj^.g '^f defendants in the way of trade, of articles manufactured existence of according to the plaintiff's patent, amounted to an infringe- P'* '^'^ ' raent although the defendants were not aware of the existence of the patent; and in United Telephone Co. v. London, &c., Co., (jn) it was held by Bacon, V.C., that the mere custody Keeping by the defendants of machines manufactured abroad, accord- possession o , •' _ , ^ , ' machines, ing to the plaintiffs' patent, amounted to an infringement ; but probably in a case of this kind, the Court would refuse to grant an injunction if the defendant showed by satis- factory evidence, that, immediately upon ascertaining the existence of the patent, he abandoned all intention to use the machine, (z) It was held by Jessel, M.E.,(a) that it was no infringe- Making experi- ment of a patent to make hondfide experiments of a patented ™ents. article, so long as they were not made with the object of obtaining profit. But it was subsequently held by Kay, J., (&) that the user of such an article, for the purpose of experi- ment, and the instruction of pupils, did amount practically to a user for profit, and was therefore an infringement. A person will be deemed to infringe an English patent, if Importation of he buys abroad, imports into this country, and sells an ^|j'^'^' ^^ """^ instrument the subject matter of the patent, (c) But it has been recently decided by the House of Lords, (d) that where (w) Murray v. Clayton, 7 Ch. 585. (x) L. K. 5 Ex. 37. (2/) 26 Ch. D. 776. (2) Proctor V. Bayley, 42 Ch. Div. 390. (a) Frearson v. Loe, 9 Ch. D. 48. (6) United Telephone Co. v. Sharpies, 29 Ch. D. 164. Upon the question Combioation. what is an infringement of a patent for a combination of mechanical con- tiivanccs, see Clark v. Adie, 10 Ch. 667 ; 2 App. 315 ; Dudgeon v. Thomson, 3 Ai>p. 34 ; Proctor v. Bermis, 36 Cli. Div. 740 ; Brown v. Jaclcson, A. C. (95)446; as to infringement generally, see Von Ueyden v. Neustadt, 14 Ch. Div. 230; Neivton v. Vaucher, 6 Ex. 859; United Telephone Co. V. Dale, 25 Ch. D. 778. (c) Neilson v. Beits, L. R. 5 H. L. 1 ; United Teleplione Co. v. Sharpies, 29 Ch. D. 167. (ci) Badische, &c. v. Basle Chemical Works, A. C. (98) 200. 326 INJUNCTIONS. Licensee cannot ques- tion validity patent. Rights of CO owners ; — mortgagee ;- account. When inter- locutory in- junction granted. a trader in England ordered goods from a foreign mann- factiirer in Switzerland to be sent by post to England, and the manufacturer addressed the goods to the trader in England, and delivered them to the Swiss Post Office, by whose officers they were forwarded to England, the vendor had not made, used, exercised or vended the invention within the ambit of the patent, and that therefore there was no infringement by him ; because the post office authorities and the railway company, who in fact conveyed the goods, ■were acting not on his behalf, but on behalf of the purchaser. A licensee under a patent cannot, in any way, question its validity during the continuance of his license. But when royalties are claimed from him in respect of goods manufactured according to the patent, it is competent for him to show that the manufactures in question do not fall within the limits of the patent, but are extraneous thereto, (e) Where a patentee assigns to each of two persons a moiety of his patent rights, each assignee is entitled to work the ~ patent, without being liable to account to the other for profits. This rule applies, even if one of the assignees be a mortgagee of the other moiety. (/) Where a patent is of such age, and there has been such actual user thereof, that it may fairly be taken to have been recognized and submitted to by the world, the Court may, upon the plaintiff showing a, prima facie case, and giving the usual undertaking as to damages, grant an interlocutory injunction until judgment ; but if there has been no evidence of actual user for any considerable number of years, then even though the plaintiff make out a prima facie case in other respects, the motion will, as a rule, be ordered to stand over until the trial, ujion the terms of the defendant keeping the usual accounts of all profits made by him, by the user of the patent. In such a case the old practice of the Court of Chancery, prior to the passing of Lord Cairns' Act, 1858, Ss. 23, 85, 87, (e) CJarli v. Adie, 2 App. 42G. As to the registration of grantees, and 90 ; — registra- of assignments and transmissions of and equitable interests in, patents, tion, assign- licenses, etc., see ss. 28, 85, 87, 90 of the principal Act, as amended by ment, equit- s. 23 of the Act of 1888; EerCaseij, 1 Ch. (92) 10-i C. A.; Van Gelder v. able interests, Sotcerhy, &c.. Society, 44 Ch. Div. 374 ; New, &e., Co. v. Spihhury, 67 etc. L. J. Ch. 5.57, C. A. (/) Steers v. Rogers, A. C. (93) 232. PATENTS. 327 c. 27 (g) (enabling it to direct any question of fact to bo tried by itself, either with or without a jury), was to direct the Bill to be retained, with liberty for the plaintiff to bring an action at law to establish his title. When a plaintiff establishes the validity of his patent, and Nature of the fact of its infringement by the defendant, he will, as a *'^^ j ^'^''^" ^' rule, be entitled at the trial, and in addition to an injunction, to an account of the profits made by the defendant by work- ing the patent, or at his (the plaintiffs) option, to an inquiry as to damages, and also an order for the defendant to deliver up to him, or to destroy in his presence, any machinery in his possession or power made or sold in infringement of the patent, (/t) But the plaintiff must make his election as Election between an account of profits, and damages. He cannot 'jetween have both against the same defendant, {i) damages. By s. 29 of the principal Act, the plaintiff in an action for igss Act, infringement must deliver with his statement of claim, or s- 29 ;— de- pursuant to a subsequent order of the Court or a Judge, par- particulars. ticulars of the breaches complained of, and the defendant must deliver with his defence, or pursuant to order, particu- lars of his objections to the patent ; and if he disputes the validity of the patent, his particulars must state the grounds on which he disputes the same ; and if one of the grounds be want of novelty, he must state the time and place of the previous publication or user alleged by him. Sub-s. 6 of Costs, this section also provides that on the taxation of the costs, regard shall be had to the particulars delivered ; and the custs of the particulars are not to be allowed, unless tliey are certified by the Court or a Judge to have been proved, or to have been reasonable and proper, without regard to the general costs of the case, (j) S. 31 of the principal Act gives the Court or a Judge s. 31 ;— power to certify that the validity of the patent came in certificate as question in the action, and in that case, the plaintiff will, in havi'no- be'ea any subsequent action, and in default of any direction to the litigated; — costs, etc., (g) See also 25 & 26 Vict. c. 42, usually called Kolt's Act; Fernie v. Young, L. R. 1 H. L. 78. (h) Frearson v. Loe, 9 Ch. D. 67 ; United Telephone Co. v. London, &c., Co., 26 Ch. D. 776. As to the right to discovery on the prosecution of such an inquiry, see Murray v. Clayton, 15 Eq. 115 ; and as to the measure of damagf s, American, &c.. Co. v. Thomson, 44 Ch. Div. 274. (/) Ntihon V. Belts, L. R. 5 H. L. 1. As to the right to an account of profits, see Bergmann v. Macmillan, 17 Ch. D. 423. (J) As to this sub section, see Wilcox v. Janes, 2 Ch. (97) 71. 328 INJUNCTIONS. S. 32 ;— groundless threats of legal pro- ceedings ; against third party. Undertaking as to damages, contrary, be entitled to his full costs, charges, and expenses, as between solicitor and client. By s. 32 of the princijial Act, it is enacted that " where any person claiming to be the patentee of an invention, by circulars, advertisements, or otherwise, threatens any other person with any legal proceedings or lial^ility in respect of any alleged nianiifactiire, use, sale or purchase of the invention, any person or persons aggrieved thereby may bring an action against him, and may obtain an injunc- tion against the continuance of such threats, and may recover such damage (if any), as may have been sustained thereby, (Jc) if the alleged manufacture, use, sale, or pur- chase, to which the threats related, was not in fact an infringement of any legal rights of the person making such threats : Provided that this section shall not apply, if the person making siich threats with due diligence commences and prosecutes an action for infringement of his patent." An injunction may be obtained under this section, even if the threat has been made against a third party. (/) The usual undertaking as to damages should not be inserted in an interim order in a patent action restraining one of the parties from publishing threats of legal pro- ceedings for infringement of his alleged patent; because it is not desirable in any event that threats should continue during the litigation — even though the result thereof may prove that they might be justified, (m) 46 & 47 Vict. c. 57, s. 64. Section XL — Trade MarJcs. By the Patents, Designs, and Trade Marks Act, 1883, c. 57 (which repealed, among other Acts, the Trade Marks Eegistration Act, 1875, c. 91), amended by the Patents, Designs, and Trade Marks Act, 1888 (c. 50), provision is made for the registrati(m of trade marks by the Comptroller General of Patents, Designs, and Trade Marks, on applica- tion by or on behalf of any person claiming to be the proprietor thereof. The practice as to such registration is governed by the Trade Mark Kules, 1890 and 1897. By s. 10 Measure of (^) ^8 to the measiu-e of damages in such case, see Sldnner v. Shew damages. (No. 2). 2 Ch. (94) 581. (0 Douglass v. Pintsch's, &c., Co., 1 Ch. (97) 176. As to the effect of this section generally, see Kensington, &c., Co. v. Lane-Fox Electrical Co., 2 Ch. (91) 573 ; Johnson v. Edge, 2 Ch. (92) 1, C. A. ; Skinner v. Shew (No. 1), 1 Ch. (93) 413, C. A. (m) Fenner v. Wilson, 2 Ch. (93) 659. TRADE MARKS. 329 of the Act of 1888 the following section is substituted for s. 64 of the first mentioned Act (called the principal Act). (1.) For the purposes of this Act, a trade mark must ^^ ^ ^"^ ^'^i'^'* consist of or contain at least one of the following essential 1?; ^ ^^:^ '_ particulars : (a) A name of an individual or firm printed, turg^ device, impressed, or woven in some particular and distinctive invented word, manner; or (b) A written signature or copy of a written etc. signature of the individixal or firm applying for registration thereof, as a trade mark; or (c) A distinctive device, mark, brand, heading, label, or ticket; or (d) An invented word or invented words ; or (e) A word or words having no reference to the character or quality of the goods, and not being a geographical name, (n) (2.) There may be added to any one or more of the essential particulars mentioned in this section any letters, words, or figures, or combination of letters, words, or figures, or of any of them, but the applicant for registration of any such additional matter must state in his application the essential particulars of the trade mark, and must disclaim in his application any right to the exclusive use of the added matter, and a copy of the state- ment and disclaimer shall be entered on the register, (o) (3) Provided as follows : (i) A person need not, under this section, disclaim his own name, or the foreign equivalent thereof, or his place of business, (p) but no entry of any such name shall affect the right of any owner of the same name to use that name or the foreign equivalent thereof: (ii) Any special and distinctive word or words, letter, figure, or combination of letters or figures, or of letters and figures used as a trade mark before the 13th day of August, 1875, (q) may be registered as a trade mark under this part of the Act. A trade mark must be registered for particular goods or 46 & 47 Vict. classes of goods, (r) *:; ^^' **' ^^' » When a person claiming to be the proprietor of several ^j.^dg j^ark trade marks which, while resembling each other in the with goods. material particulars thereof, yet ditfer in respect of (a) the s. 66. Regis- statement of the goods for which they are respectively used tration of a or proposed to be used, or (b) statements of numbers, or series of marks. (c) statements of price, or (d) statements of quality, or (n) See Be Magnolia, &c., Co., 2 Ch. (97) 371. (o) Be Golman, 2 Ch. (91) 402 ; 2 Cb. (94) 115. (p) See Be ColMan, 2 Ch. (94) 115; Be Smokeless, Ax., Co., 1 Ch. (92) 590. (q) The day on which the Trade Marks Eegiatratiou Act, 1875 (c. 91), Old trade came into operation. As to old trade marks, see Be UopMnson, 2 Ch. marks. (92) 116; Be Henry Clay, &c., Co., 3 ib. 549; Be Powell, 2 Ch. (93) 388; Powell V. Birmingham, dice., Co., A. C. (94) 8; Bichards v. Butcher, 2 Ch. (91) 522, C. A. (r) Jay v. Ladler, 40 Ch. D. C49 ; Uart v. Colley, 44 Ch. D. 193. 330 INJUNCTIONS. S. 70. Assign- ment and transmission of trade mark. S. 72. Restrictions on registration. Mark calcu- lated to deceive. S. 73. Further re- striction on res^istration. Scandalous design. S. 74. Saving for power to provide for entry on register of common marks, as additions to trade marks. Device, etc., common to the trade. " Prescribed. " (e) statements of names of places, seeks to register such trade marks, they may bo registered as a series in one registration. A series of trade marks shall be assignable and transmissible only as a whole ; but fur all other purposes, each of the trade marks composing a series shall be deemed and treated as registered separately. A trade mark, when registered, shall be assigned and transmitted only in connection with the goodwill of the business concerned in the particular goods or classes of goods for which it has been registered, and shall be deter- minable with that goodwill, (s) By s. 72 of the principal Act, as amended by s. 14 of the Act of 188S, it is enacted that "(1) Except where the Court has decided that two or more persons are entitled to be registered as proprietors of the same trade mark, the comp- troller shall not register in respect of the same goods or description of goods, a trade mark identical with one already on the register, with respect to such goods or description of goods. (2) Except as aforesaid the comptroller shall not register, with respect to the same goods or description of goods, a trade mark having such resemblance to a trade mark already on the register with respect to such goods or description of goods, as to be calculated to deceive " (f) By s. 73 of the principal Act as amended by s. 15 of the Act of 1888, it is enacted that "It shall not be lawful to register as part of or in combination with a trade mark any words the use of which would, by reason of their being calculated to deceive (ii) or otherwise, be deemed disentitled to protection in a court of justice, or any scandalous design." By s. 74 of the principal Act, as amended by s, 16 of the Act of 1888, it is enacted that " (1) Nothing in this Act shall be construed to prevent the comptroller entering on the register, in the prescribed (wit) manner, and subject to the prescribed conditions, as an addition to any trade mark — (a) In the case of an application for registration of a trade mark used before the 13th day of August, 1875 — Any distinctive device, mark, brand, heading, label, ticket, letter, word, or figure, or combination of letters, words, or («) See Ee ilagnoUa, &c., Co., 2 Ch. (97) 371, C. A. ; Be Wellcome, 32 Ch. D. 213. (0 See Ee Ehrmann, 2 Ch. (97) 495. (m) Ee Beaton, 27 Ch. D. 570; Johnston v. Orr Ewing, 7 App. 219; £■710 V. Dunn, 15 ih. 252 ; Ee Australian Wine Importers, 41 Ch. Div. 278; Ee ! ^ .1 person's own or his business, (s) or has re-assumed a name previously name, abandoned by himself, (t) for the mere purpose of passing off his goods as being of the manufacture of a rival tradesman or firm, whose name, or the style of whose firm he has adopted, he can be restrained by injunction from using such new name in connection with the sale or manufacture of the like class of goods. A trader who has been manager or assistant to another Manager, etc. ; trader, or to a firm of established reputation, has the right to ~?u°f ^'j 'er^ inform the publio, on setting up an independent business, master, that he has been with such other trader or firm ; but he is liable to be restrained by injunction, if he do so in such manner as is calculated to lead the public to believe that he is, at the time of the representation, carrying on the business of his former principal or principals, or that he is then in any way connected therewith, (u) When the inventor of any substance has had the protec- Patented suh- tion of a patent for the same, the Court will not allow him nJ^v'^nanie. to obtain a further monopoly by using the name of his patent as a trade mark. Thus in Linoleum, &c., Co., v. Linoleum, 4-n., Nairn, (v) the plaintiffs' vendor was the inventor and '^^^ "^^ -^'^"'""• patentee of a substance used as floor-cloth to which he gave the descriptive name of " Linoleum," and the floor-cloth made by him therewith had been known as "Linoleum Floorcloth," or as " Linoleum." The plaintiffs sought, after the expiration of the patent, to restrain the defendants from using the word " Linoleum," as applicable to floorcloth sold by them. Fry, J., dismissed the action with costs, saying in his judgment, inter alia, that he had asked during the argu- ment, what the defendants were to call the substance, and that he had received no answer — for the simple reason that (s) Pinet V. Maison Pinet, 1 Ch. (9S) 178 ; Civil Service Supply Assn. v. Dean, 13 Ch. D. 512; Lee v. Haley, 5 Ch. 155. (t) Daniel v. Whitehouse, 1 Ch. (98) 685. (u) Lloolcham v. Pottage, 8 Ch. 91. (v) 7 Ch. D. 834. See also Cheavin v. Walher, 5 Ch. Div. 862; Re Palmer, 24 Ch. Div. 521 ; Re Ralph, 25 Ch. D. 194. 338 INJUNCTIONS. no answer could bo given, except that they must invent a new name for it, which his Lordship considered was not law. Mark contain- Tho owner of a trade mark which contains a misrepre- ins? misrepre- gentation, e.g. a statement contrary to the fact, that the manufacture is protected by an existing patent, is not en- Collateral titled to the aid of the Court, (lo) But in Ford v. Foster, {x) misiepresenta- j^ ^g^g ]^q\^ that a collateral misrepresentation did not dis- entitle the plaintiff to relief. In this case the plaintiff's trade mark was " Ford's Eureka Shirt " ; and he had falsely represented in his invoices, and in a few advertisements, that he was a patentee of the shirt. It was held by the Court of Appeal that this was not sufficient to prevent him from commencing an action at Law, and that, his legal right being clear, he was entitled to an injunction in Chancery. The general rule is founded on the principle that no man can claim a trade mark in a falsehood; and it also applies where the mark is used in a trade which is fraudulent in itself, (jf) But it is competent for a trader to tell the world that he is making an article according to an expired or lapsed patent, (z) Acquiescence ; When a person using a trade name allows other persons to — mark publici use it without complaint, the name comes, in the course of •^"'"'^* time, to denote the article sold, and nothing more. It then becomes jpuhlici juris ; and any one who is at libei'tj to make the article, may call it by the name by which it is usually known. But the onus prohandi that the name has become puhlici juris, is upon those who assert that it has become so. (a) Relief ffiven A- successful plaintiff in an action for the infringement of at trial. a trade mark will, as a rule, be entitled at the trial, and in addition to an injunction, to an account of profits, or at the plaintiff's option, an inquiry as to damages, and also an order for the destruction of labels and articles having the trade mark thereon, corresponding to the relief granted in an action for the infringement of a patent, (b) An account of (w) Cochrane v. Macnish, A. C. (96) 225; Ee Heaton, 27 Ch. D. 570; Siegert v. Findlater, 7 Ch. D. 801. (x) 7 Ch. till. ly) Ford V. Foster, supra ; Lee v. Haley, 5 Ch. 155. (0) Cheavin v. Walker, 5 Ch. Div. 850 ; He Falmer, 24 ib. 521. (a) Powell V. Birmincjham, &c., Co., 2 Ch. (96) 73, C. A. ; A. C. (97) 710 ; National, &c., Co. v. Munns, Ac, Co., A. C. (94) 27.i, P. C. ([)) Saxlehner v. Apollinaris Co., 1 Ch. (97) 904. Hee S. C. as to costs ; Costs. aiay g_ 18 of the Act of 1888 set forth supra. TRADE MARKS. 339 profits nuist be limited to six years before the date of tlie action, (c) It was held by Chitty, J., in Upmann v. Forester, (^d) that a Innocent in- defendant who had innocently infrinpjed the plaintiff's trade f»"'°g«™ent; •^ ° -t^ _ costs, mark was bound to pay the costs of an action for an injunc- tion to restrain him from so doing; and the like course was followed by Pearson, J., in Wittman v. Oppenheim, (e) in the case of an action to restrain the infringement of a registered design. But it was subsequently held by Stirling, J,, in American Tobacco Co. v. Guest, (/) that it is not a matter of course to saddle with the co^ts a retail trader who has purchased and dealt with a small quantity of goods, without being aware that he was committing an infringement of a trade mark, (g) Section XII. — Copyright. The Court will also grant an injunction to restrain the infringement of copyright ; and it is not prevented from exercising this jurisdiction by the fact of the Copyright Acts imposing penalties upon infringers. Copyright in books is regulated by the Copyright Act, 5 & 6 Vict. c. 1842 (c. 45), and has been defined as the exclusive liberty of , }~..^ printing or otherwise multiplying copies of a work already published. (/«) By s. 2 of this Act, the word " book " is to « Book " ;— be construed to mean and include "every volume, part or 'lefinitioa. division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan separately published." (^) By s. 3, the copyright in every book published in the Term of copy- lifetime of its author is to endure for the author's life, and '"'S"'^- the further period of seven years from his death, and is to be the property of such author and his assigns. If such term of seven years expires before the end of forty-two years from the first publication of the book, the copyright is to last for (c) Ford V. Foster, 7 Ch. 633. (d) 24 Ch. D. 231. (e) 27 Ch. D. 260. (/) 1 Ch. (92) 6H0. (g) See also Walter v. Steinlwpff, 3 Ch. (02) 500 : Jenkins v. Hope, 1 Ch. (96) 278 ; Snuggs v. Seyd, &c., Co., W. N. (94) 95. (h) Jefferys v. Boosey, 4 H. L. C. 954; Morrif! v. Wright, 5 Ch. 284. See the above-mentioned Act, 5 & 6 Vict. (c. 45), 8. 2. (i) As to tbe con.st ruction of the worri.s "separately published," sc^o " Separately Juliuson V. Neivnes, 3 Ch. (94) 069. pnlilislied." z 2 340 INJUNCTIONS. S. 11 ; — regis- tration at Stationers* Hall. S. 13;— assignments, etc. Ss. 18, 19;— periodicals, encyclopaedias, etc. S. 15;— Common Law remedy. S. 24 ;— no action to be maintained before regis- tration. forty-two years from tlio time of piiLlication, and to be the property of the proprietor of the author's manuscript, (y) By s. 11, a hook is to be kept at the Hall of the Stationers Company containing a registration of the proprietorship of the copyright of books, and of assignments thereof, and of dramatic and musical pieces, and licences affecting such copyright, and copies of any entry in such book, when certified and stamped as provided by this section, are to be received in evidence in all the Courts, and are thereby made prima facie proof of the proprietorship, assignment, copy- right, or licence as therein expressed. By s. 13 provision is made for the registration in the registry of the title of the book, the first time of ^publication thereof, the name and place of abode of the publisher, and of the proprietor of the copyright, and thereby permission is given to every registered proprietor to assign his interest by entry in the registry book of such assignment, and of the name and place of abode of the assignee, and the same section in substance provides that such an entry shall have the same effect as an assignment by deed. By ss. 18 & 19, special provision is made relating to the copyright in en cyclopaedias, reviews, magazines, and other periodicals published in a series, and under an agreement whereby the copyright in the parts thereof composed by other persons than the proprietor or publisher, but paid fur by him, shall be in the proprietor or publisher. (Ji) By the former section such proprietor or publisher has the same rights as the author, but subject to the restrictions contained in the Act. S. 15 gives to the proprietor of a copyright a remedy for the infringement thereof by a special action on the case ; and by s. 23, all pirated copies are to be deemed to be the property of the registered proprietor of the copyright, who is by the same section entitled to sue for and recover the same, or damages for the detention thereof, in an action of detinue, or to sue for and recover damages for the conversion thereof, in an action of trover. By s. 24, no projirietor of copyright in any book is entitled ( j) Marziah v. Gibbons, 9 Ch. 519. \k) See W^ . ,.,,., , .,.'', sources of in- descnbed m the same words, a subsequent comj^iler la bound formation; to set about doing for himself that which the first compiler has done. In case of a road-book, he must count the mile* stones for himself. In the case of a map of a newly- discovered island, he must go through the whole process of triangulation, just as if he had never seen any former map ; and, generally, he is not entitled to take one word of the information previously published, without independently working out the matter for himself, so as to arrive at the same result, from the same common sources of information ; and the only use that he can legitimately make of a previous publication is to verify his own calculations and results when obtained. So in the present case the defendant could not take a single line of the plaintiff's directory for the purpose of saving himself labour and trouble, in getting his infor- mation." In this case the Vice-Chancellor granted an injunction to restrain the publication by the defendant of any copies of a directory in the preparation whereof he had availed himself of information obtained from the plaintiif's work, by using slips cut out therefrom ; but it was subse- quently held (t) that a defendant was entitled to refer to the plaintiff's directory, in order to guide himself or his canvas- sers to the persons on whom it would be worth while to call, in order to obtain material for the compilation of a rival directory. In like manner an author who has been led by to quotations a former author to refer to older writers will not be deemed "'"!" °'*^®^" , . . 1 writers. to be guilty of piracy, merely because he quotes the same pages in the older writers, as were used by the former author ; but he must examine the works of such older writers for himself, (u) An author is not entitled to any monopoly in any theory No monopoly of theory, etc. (q) Scott V. Stanford, supra ; Pike v. Nicholas, 5 Ch. 268 ; Ager v. Peninsular, etc., Co., 26 Ch. D. 642 ; Cooper v. Stephens, 1 Ch. (95) 572. As to iiifriiiijement by copying a picture expressing the feeling and Picture in artistic character of a book, see Brooks V. Eeligious Tract Society, 45 book. W. R. 476. (r) Morris v. Wright, 5 Ch. 284. {s) 1 Eq. 701. it) Morris v. Wright, 5 Ch. 287. (m) Pike V. Nicholas, ib. 251. 348 INJUNCTIONS. or speculation of his own ; nor even in the published results of his observations in relation thereto. («) Dramatization Any person may dramatize a novel, and may cause his of novel. drama to be publicly represented. But if, for the purpose of dramatization, he prints or otherwise multiplies copies of the book, he is liable to be restrained by injunction from so doing, even though the copies were made for gratuitous dis- tribution, (w) Pirated mixed When a defendant has pirated a material part of a plain- oriirmal tiff's publication, and intermixed the same with original matter. matter, so that it is dijBficult to determine the amount which has been appropriated, the Court will not, either at the trial, or upon motion for an interlocutory injunction, wait to ascer- tain the actual amount of the appropriation, but will grant an injunction to restrain the defendant from publishing any copies of his work containing portions of the plaintiff's work ; and giving liberty for the defendant to apply when he shall have expunged all matter so copied by him. (x) Author's . A publishing agreement between an author and a pub- agreement T ■, . 1 j^ n • T • -, 1 . . .■■ with j)ublisher ^^sner IS personal to the individuals entering into it ; and or company, the benefit thereof is not assignable by the publisher, without the author's consent. It makes no difference in this respect that the agreement has been made between the author and a publishing firm or joint-stock company, (y) Remedies It is now competent for a plaintiff proprietor in the copy- infrimrer. right of any work, successfully to sue an infringer in one action in the Chancery Division for the remedies given to him by ss. 15 and 23 above referred to, as well as for an injunction, that is to say, he is, as a rule, entitled, upon proving his title, and the infringement, to judgment not only granting an injunction, but also ordering delivery up to him on oath of all pirated copies of his book or work in the defendant's possession, as in an action of detinue ; and to damages, as in an action of trover, for those copies which the defendant has sold, (z) . (v) lb., p. 268. (w) Warne v. Seebohm, 39 Ch. D. 73. (a;) Kelly v. Morris, 1 Eq. 703 ; Morris V. Wright, 5 Ch. 284 ; Warne V. Seelohm, 39 Ch. D. 82. (y) Griffith v. Toiver Publishing Co., 1 Ch. (97) 21, (z) Muddoch V. Blackwood, 1 Ch. (98) G4 ; Warne v. Seebohm, 39 Ch. D. Im)wrtation of 82; Hole v. Bradbury, 12 Ch. D. 886. As to s. 17, prohibiting the pirated books, importation into the British dominions for sale or hire of pirated copies of any book first written or published in the United Kingdom, see Cooper v. Whitiingham, 15 Ch. D. 501. coPYRionT. 349 Persons attending the lectures of a professor or lecttirer at Leotuies of a university or college, are at liberty to take the fullest notes p^ot-gssor^etc of the lectures for their own personal purposes ; but they are not at liberty to use them afterwards for the purpose of publication with a view to profit; (a) and the Court may grant an injunction to restrain such publication, though the lectures were delivered from memory, and though the publi- Piracy in cation may have been made in shorthand, (h) ^ °^ ''" " Lectures delivered in any university or public school or Lectures Copy- college, or on any public foundation, or according to any gift j^^o- * ' or endowment, are not subject to the provisions of the Lectures Copyright Act, 1835 (5 & 6 Will. 4, c. 65) whereby authors of lectures and their assigns are required, as a con- dition to their having the sole right of publishing lectures about to be delivered to give two days' previous notice to two justices of the peace, in accordance with the provisions of the Act. By the Dramatic Copyright Act, 1833 (c. 15), the author Dramatic of a dramatic piece and his assigns have the sole liberty of 1033"^ ' ^ ' representing the same, when not published; and by s. 2, penalties are imposed on persons representing pieces contrary to the Act. Then by s. 20 of the Copyright Act, 1842, (c. 45), above referred to, the benefit of the Dramatic Copy- right Act, 1833, is extended to musical compositions, and gives to the author of dramatic pieces and musical composi- tions, the rights and remedies conferred by the earlier Act, for the full period provided by the Act of 1842 for the duration of copyright in books, except that the first public lepresentation or performance of any dramatic piece or musical composition, is to be deemed equivalent to the first publication of a book. These provisions are amended by the Musical C(im- Musical Compositions Acts, 1882 (c. 40), and 1888 (c. 17). S'^'^isss''*'' It has somewhat recently been decided by the Court of Appeal, (c) that in order to bring a musical composition within the provisions of the Act of 1833 it must have the (a) Gaird v. Sime, 12 App. (Sc.) 326. (6) Nicols V. Pitman, 26 Ch. D. 374. (c) Fuller v. Blackpool, &c., Co., 2 Q. B. (95) 429. As to musical copy- right in general, see Fairlie v. Boosey, 4 App. 711 ; Ex parte HutchinK, 4 Q. B. Div. 483; Wall v. Taylor, 11 Q. B. Div. 102; Eaton v. Lake, 20 Q. B. Div. 378 ; and as to dramatic copyright, Levy v. Rutley, L. R. 6 Dramatic C. P. 523; Duck v. Bates, 13 Q. B. Div. 843; Lauri v. Renad, 3 Ch. (92) copyri^rlit. 402. C. A. ; Reichardt v. Sapte, 2 Q. B. (93) 308 ; Tree v. Bowkett, 74 L. T. 77. 350 INJUNCTIONS. characteristics of a dramatic piece, that the question whether it has or has not such chaiacteristics, must be determined, in each case, by the nature of the composition, and that when a musical composition has been published, it is essential, in order to entitle the owner of the right of public representa- tion or performance thereof to sue for the penalties incurred by the unauthorized performance of such composition, that the right of representation or performance must have been reserved by notice printed on every published copy, as provided by the Act of 1882. Dramatic work Having regard to the provision in s. 20 of the Act of first repre- 1842, above referred to, making the first public representa- senteU abroad. . . , . tion or performance of a musical piece or composition equivalent to the first publication of a book, it has been held by the Court of Appeal that the author of a diamatic work which has been first represented in a foreign country, is not entitled to any exclusive right to representation in this country, {d) International By s. 2 of the International Copyright Act, 1844, (c. 12), Copyright -vvhich has been am'ended by the International Copyright 1886. Acts, 1852 (c. 12), 1875 (c. 12), and 1886 (c. 33), the Crown is enabled by Order in Council, to confer on the authors, inventors, designers, engravers and makers of books, prints, articles of sculpture, and other works of art first published in any foreign country, the privilege of copyright therein, for any period or periods not exceeding the term of copyright which such authors, inventors, designers, engravers and makers of the like works respectively first published in the (d) Boucicault v. Chatterton, 5 Ch. Div. 267. Compare Chappell v. Engravings Boosey, 21 Ch. D. 232. Upon the question what is an iufringtment of and Prints copyright in an engraving or print, within the meaning of the Engravings Copyright Copyright Act, 1766 (7 Geo. 3, c. 38), and the Prints Copyriglit Act, Acts. 1777 (17 Geo. 3, c. 57), see Dicks v. Brooks, 15 Ch. Div. 22 ; and upon the Fine Arts question who is an author, within tlie meaning of s. 1 of the Fine Arts Coiwric^ht Act Copyright Ar't, 1862 (c. 68), and as to the construction and efifect of s. 6 '■' ^ 'of the same Act, see Melville v. Mirror, &c., Co., 2 Ch. (Jt5) 531 ; Louri v. Jienad, 3 Ch. (92) 402, C. A. Upon the question what is a " good or a S. 1. valuable consideration " within s. 1 of this Act, see Ellis v. Marshall, 64 L. J. Q. B. 757 ; and what is a copy or reproduction of a picture, within the same section, Bolton v. Aldin, 65 L. J. Q. B. 120 ; Hanfstaengl v. Emjnre Palace, A. C. (95) 20; 3 Cii. (94) 110, C. A. (tableaux- vivanti. and paper sketciies). See the last-mentioned report also upon the question whether the owner of the copyright in a foreign picture can maintain an action for infringement, without registering his copyright in England; and as to the last-mentioned Act generally, see Ex parte Beal, L. K. 3 Q. B. 387; Lucas\. Cooke, 13 Cli. D. 872; Tuck v. Priester, 19 Q. B. Div. 629 ; Kenrick v. Lawrence, 25 Q. B. D. 99. bonk from abroad. INTERNATIONAL COPTRIGIIT. 351 United Kingdom may then be entitled to under the Acts therein recited ; and by s. 3, it is enacted to the effect that in case such Order shall apply to books, the persons on whom such privilege has been conferred shall be entitled to the benefit of the Copyright Act, ] 812, and of any other Act for the time being in force with relation to the copyright in books, as if such books had been first published in the United Kingdom. Under s. 10 of the Act of 18i4 above referred to, the Court Imiortatioii of has power, in an action by the owner of the British interna- tional copyright in a book first published abroad, to grant an injunction restraining the owner of the foreign copyright from importing into and selling copies of the book in Great Britain, (e) Section XIII. — Copyright in Registered Designs. The Court will also grant an injunction to restrain the nofinition. infringement of copyright in a registered design, i.e., any new or original design not published in any part of the tJnited Kingdom prior to the registration thereof. The law patents etc. of copyright in designs has been consolidated and amended Acts, 1883, by the Patents, Designs, and Trade Marks Act, 1883 (c. 57), ^^^^' ss. 47-61 ; and these sections have since been further amended by the Patents, Designs, and Trade Marks Act, 1888 (c. 50), ss. 6, 7; and the practice in relation to the registration of such designs is regulated by the Designs Designs Rules, Eules, 1890 and 1893. l«9^». 1893. By s. 60 of the Act of 1883 " design " means " any design 1883 Act, applicable to any article of manufacture, or to any substance, »• '^^ ;— artificial or natural, or partly artificial and partly natural, '^''-'^'I't'o'^- whether the design is applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applicable, whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical, or chemical, separate or combined, not being a design for ■ a sculpture, or other thing within the protection of the Sculpture Copyright Act of the year 1814(54 Geo. 3, c. 56);" Sculpture and by the same section " copyright " means " the exclusive Coi)yri>;ht Act, (e) Pitts V. George, 2 Cb. (96) 8GG. As to international copyright gf-nerally, see Schauer v. Field, 1 Ch. (93) 35; Hanfstaengl v. American Tobacco Co., 1 Q. B. (95) 347, C. A. ; "Morocco Bound " v. Harris, 1 Cli. (95) 534 (dramatic coi)yriglit). S. 51 ; — mark iiisr articles. 352 INJUNCTIONS. right to apply a design to any article of mannracture, or to any such substance as aforesaid, in the class or classes in which the design is registered." 1883 Act, By s. 47 (4), the same design may be registered in more ^- '*' ^ )• than one class of goods. By s. 50 (1), the registered pro- ■ '' ^ ^' prietor of the design is entitled, subject to the provisions of the Act, to the copyright in the design for five years from the date of registration ; and by s. 51, he is bound, before delivery on sale of any article to which the design has been applied, to cause each of such articles to be marked with the prescribed mark (i.e., prescribed by the Schedules to the Act, or by the general rules to be made thereunder), or with the prescribed word or words or figures, denoting that the design has been registered; if he fail to do so, the copy- right is to cease, unless the proprietor shall show that he took all pioper steps to insure the marking of the article. S. 58 ; — 1888 By s. 58 of the same Act, as amended by s. 7 of that of Act, 8. 7; 1888, it is enacted that " during the existence of copyright piracy , .^ ^^^ design, (a) it shall not be lawful fur any person, without the license or written consent of the registered proprietor, to apply or cause to be applied such design, or. any fraudulent or obvious imitation thereof, in the class or classes of goods in which such design is registered, for purposes of sale to any article of manufacture, or to any substance, artificial or natural, or partly artificial and partly natural; and (b) it shall not be lawful for any person to publish or expose for sale any article of manufacture or any substance to which such design or any fraudulent or obvious imitation thereof shall have been so applied, knowing that the same has been so applied without the consent of the registered proprietor." By the same section penalties are imposed upon persons acting in contravention thereof. Acts giire pro- These Acts give protection only to the pattern, shape, or tection only to configuration, or to the design for the pattern, shape, or incidental ' configuration. The result of such protection may be to advantages. secure important advantages, such as attend a mechanical contrivance ; but in such a case, these advantages are merely Test of incidental. The eye must be the judge as to the similarity simi an y. ^^ ^^^ designs ; and the question whether there has been an infringement or not, must be determined by placing the plaintiff's and the defendant's articles side by side, and asking whether they are independent designs, or whether one is an obvious imitation of the other. But the Court may take into account the state of knowledge at the time of registration, with the view of determining whether variations REGISTERED DESIGNS. 353 from the registered design which appear in the alleged infringement, are substantial or immaterial. (/) Where a design is registered as applicable to pattern, New combiaa- shape, and configuration, the registration applies to the *"'°- design as a whole, and is protected, although in some of these particulars, it may not be novel. Thus in John Harper John Harper ^ & Go. V. Wright, ((/) the plaintiffs had so registered a design ^°- '^- ^^''^^t- for an upright hexagonal metal stove, the sides of which had the representation in metal work of a church window of a particular style of architecture, with tracery above and below. The defendants produced a hexagonal upright stove, with the design of a church window of a different style of architecture, and with different tracery ; but the general appearance of such stove was very similar to that of the plaintiffs'. It was held by the Court of Appeal that the defendants' stove was an obvious imitation of that of the plaintiffs', and judgment was given for the plaintiffs, granting an injunction to restrain the infringement of the copyright, with the usual order as to damages. It was held in the case last referred to that where a design Variation of is registered, and before the expiration of the term of pro- existing design. tection, the same design, with an unimportant variation is registeted, the original design may be cojiied as soon as the original term of protection expires, provided the variation be not copied. When a registered design consists of old parts, it is the Distinction design as a whole which is protected, not the design for '^<^'^^^'^en old some or one of the component parts taken separately ; and it matter. is not, in such case, necessary to distinguish what is old from what is new. (Ji ) In Heath v. BoUason, (t) it was held by the majority of ITeath v. the Court of Appeal (Lindley, M.E., and Chitty, L. J., dis. BoUason •— XT 1 ■H--11' T \ -^ ^ \ • 1 1 T pattern in- Vaughan VV imams, -L.J.), that m a case where the novelty eludes shape of a design registered for pattern is in question, " pattern " s<^c. includes shape, ornamentation, and outline, and that novelty or originality may be found in the shape, as distinguished from the pattern. In this case a design was registered as applicable for pattern (in Class 1, Sch. III. to the Rules of 1890), for coffin plates, and the drawings annexed to the (/) Hecla Foundry Go. V. Walker, 14 App. 555. ig) 1 Ch. (96) 142, C. A. (ft) Re Clarke, 2 Ci:. (96) 47, C. A. (i) A. 0. (98) 499. 2 A 354 INJUNCTIONS. certificate of registration showed a shell at each comer, and a border round the plates. There were no cross-sections to show elevation ; but lines Avere drawn round the plates, which were said to indicate that the centre of the plates was Description of depressed, and that the shells and margin were raised. It mode of manu- ^^.^g Jjeld that it was not necessary to register any such cross-sections, under the Act of 1883, nor to describe by means thereof or otherwise, the manner in which the article was to be made, and that it was immaterial whether it could be made in more ways than one. This decision was affirmed by the House of Lords, the House holding that the word "Design"; — "design" in 8. 60 of the Act of 1883 was intended to be ^- ^^- used in its ordinary sense and ought not to be construed in any technical sense so as to exclude anything which would in general fail within it. Application of If a design is really old in its application to some manu- esign to new f^ctured article, its application to a new substance will not substance. . . necessarily entitle it to protection, although such substance may not fall within the class to which the first article belongs. The design must be new with reference to the kind of article for which it has been registered, that is to say, not necessarily to the class of articles mentioned in the Schedule to the Rules, but to the kind of article, having Ee Clarke. regard to its general character and use. In lie Clarke, {j) Lindley, L.J., observed " a design may be new for a coal- scuttle, but not for a bonnet. On the other hand, a design for a shade of a gas-lamp can hardly be new, if it was old for an oil-lamp. In the present case, the design registered is for the shape of an electric lamp, or, rather, of the shade for an electric light. It follows from what has been stated that the shape may be new or original in its application to electric lamps, which are modern inventions, and yet be neither new nor original in its application to gas or oil lamps. If, when registered the design was not new or original for all lamps; if the shape was common for such lamps as were used before electric lighting was invented, the design is one to which the Act does not apply, and the design ought to be expunged." In this case one, Clarke, had registered a design for a " lamp for electric lighting applicable for its shape." It was in fact a design for a lamp shade, consisting of a reflecting screen which had been 0') 2 Ch. (90) 45. REGISTERED DESIGNS. 355 commonly used for gas lights, and a ventilating top not essentially differing from that which had been used before for gas, except that the chimney was omitted. It was held that the design was substantially the old form of lamp shade, and that there was no such originality or novelty in the design, as to make it a proper subject for registration. The owner of a registered design is not, under s. 51 of the Sufficiency of Act of 1883, deprived of his right to protection, merely "'^^'"'"^ '""^" because he places on the articles which he sells, and in addition to the registered number of his design, other numbers which ought not to be there. In Blank v. Foot- man (^k) "a narrow coloured trimming was sold by the maker in pieces consisting of many yards, having round them paper bands mfirked " R** " with the registration number ; and it was held by Kekewich, J., that they were sufficiently marked within s. 51 of the Act of 1883. In this Publication case the inventor of a design had shown it to, and had °® ""^ legis- c", ' tration. consulted his agent, in relation thereto. The agent con- sulted another person, and also showed it to two customers, at the same time soliciting orders for the goods. It was held that there had been a previous publication, and that a subsequent registration of the design, under the last- mentioned Act, was invalid. A proprietor whose design has been registered under the Marking ; — repealed Act of 5 & 6 Vict., c. 100, is entitled to the benefit JeJg|''u^£" of s, 51 of the Act of 1883, which, as stated above, relieves repealed Act. him from the forfeiture of his copyright, resulting from an omission to mark the article with the prescribed mark, if he can show that he took all proper steps to insure the marking. (Z) It has been somewhat recently held by a Divisional Court Act of 1883, of the Queen's Bench Division that the only right of action ^•. ^^ ' .,.,.., licencee. in respect of an infringement of copyright m designs is that given by s. 59 of the Act of 1883, to the registered pro- prietor, and that this section does not give any such right to a licencee, or to a person having the exclusive right of selling the goods to which the design has been applied, (m) (7i;) 89 Ch. D. 678. See also Heath v. RoUa.^nn, A. C. (98) 50.5. As to Amendment of the discretion of a Judge to ullow the amendment of particulars in an particulars, action for the infringement of a registered design, see Woolley v. Broad, 2 Q. B. (92) .317, C. A. (I) Wittman v. Oppenheim, 27 Ch. D. 260. (m) Woolley v. Broad, 1 Q. B. (92) 806. 2 A 2 ( 356 ) CHAPTER XIII. Writ of partition. Partition by commissioners, by Judge in Cliambers, or at liearing. Jurisdiction not applicable to personal estate ; Inclosure Acts. PAETITION ; — ASSIGNMENT OF DOWER ; — SETTLEMENT OF BOUNDARIES. Section I. — The Partition Acts 1868 and 1876. The jurisdiction of the Court of Chancery to make partition of lands held by co-owners would appear to have been more than two hundred years old at the time when the Judicature Acts came into operation. It seems to have arisen in conse- quence of the inconvenience attendant upon real estate being held in undivided shares, and the inadequacy of the remedy given by the Common Law Writ of Partition. The old form of decree in a partition suit directed that a commission should issue to certain commissioners to be therein named, to divide the estate into certain specified shares, and that such shares should be allotted to the parties respectively ; and that the parties should hold and enjoy their respective shares in severalty according to the allotments, and should execute mutual conveyances to each other. It also provided for the custody of the title-deeds and other incidental matters ; but in later times, partition has been, in most instances, directed to be made by the Judge in Chambers ; and even before the Judicature Acts, a partition was sometimes directed at the hearing, in accordance with an apportionment made by surveyors. («) The jurisdiction now under consideration applied after the passing of the Copyhold Act, 1841, c. 35, (6) to lands of any tenure. There was no corresponding right in relation (a) English and Irish Law and Chancery Commission, 1863, p. 68 : Pryor v. P., 10 Ch. 469. (6) See s. 85. The Act is repealed by the Copyhold Act, 1894 (c. 46). As to partition under the Inclosure Acts, see 11 & 12 Vict. c. 99, ss. 13 and 14 ; 12 & 13 Vict. c. 83, ss. 7, 11 ; 15 & 16 Vict. c. 79, ss. 17, 31, 32 ; 17 & 18 Vict. c. 97, s. 5 ; 20 & 21 Vict. c. 31, ss. 7-11 : 22 & 23 Vict. c. 43, ss. 10 and 11 ; 39 & 40 Vict. c. 56, 8. 33; 52 & 53 Vict. c. 30, s. 2; Jacomb v. Turner, 1 Q. B. (92) 47. POWERS OF COURT. 357 to personal estate other than leaseholds ; nor could one co- nor to owner of real or leasehold estate in reversion obtain a decree I'^J^'^'onary for partition against the other co-owners, (c) The law in this respect is the same at the present day. Before the passing of the Partition Act, 1868, tenants in No ricjht to a common, co-parceners, or joint tenants entitled to the lo'^o*^^^"^^ property for their own benefit could, by filing a bill, claim partition as of right ; (e) but they could not ordinarily except by the consent of all, sell and dispose of the estate as a whole. If any of them were under disability, such consent could not be had, (/) though a sale could sometimes be efiected in an indirect manner, (g) In a suit for partition, where if this Act had not been Partition Act, passed, a decree for partition might have been made, if it t^ ^p '^^\ appears to the Court that, by reason of the nature of the of Court to property to which the suit relates, or of the number of the °^^^^ ^^\ ,• . , 1 . , . T 1 . „ instead of parties interested or presumptively interested therein, or of division- the absence or disability of some of those parties, or of any nature of other circumstance, a sale of the property and a distribu- ^"^^^^^ ^^ ® ^* tion of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or dis- ability of any others of them, direct a sale of the property accordingly ; and may give all necessary or proper conse- quential directions. In a suit for partition, where if this Act had not been S. 4. passed, a decree for partition might have been made, if the °^ application . . . 7 , 1 • 1 • • T n m .. 1 of parties party or parties interested, individually or collectively to entitled to a the extent of one moiety or upwards in the property to moiety. which the suit relates, request the Court to direct a sale of the property and a distribution of the proceeds instead of (c) Evans v. Bagshaw, 5 Ch. 340. (e) Mayfair, etc., Co. v. Johnston, 1 Ch. (94) 513, ■where partition was Partition of made of a garden- wall separating the property of two tenants in common, wall ; — costs. The necessity for the partition having in this case arisen from a trespass committed by the plaintiff in rebuilding, he was ordered to pay the de- fendant's costs of action as well as damages asked for by counterclaim in respect of the trespass. (/) 31 Hen. 8, c. 1 ; Pitt v. Jones, 5 App. 654. (g) The fact that one of the shares in tlie property was vested in an infant, or was settled to the separate use of a married woman without power of anticipation, afforded no reason why a partition should not be made before the Act ; nor would it do so now : Coz v. C, 3 K. & J. 554 ; Fleming v. Arvistrong, 34 B. 103. 358 FAETITIOK 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 accdrdingly, and give all necessary or pioper consequential directions. S. 5. In a suit for partition, where if this Act had not been passed, share oroartv ^ decree for partition might have been made, if any party desiring sale, interested in the property 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 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 undertaking being given, the Court may order a valuation of the share of the party requesting a sale in such manner as the Court thinks fit, and may give all necessary or proper consequential directions. S. 6, - On any sale under this Act the Court may, if it thinks fit, 1 er y . ^^Uq^ ^^j q£ ^^q parties interested in the property to bid at the sale, on such terms as to non-payment of deposit, or as to setting ofi" 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. (Ji) S. 8. Sections 23 to 25 (both inclusive) of the Act of the session lukd Esutls ^f *^^ l^t^^ ^^^ 20th years of Her Majesty's reign (c. 120) Act, 1856, " to facilitate leases and sales of settled estates " shall extend ss. 23-25. ^^^ apply to money to be received on any sale effected under the authority of this Act. («') Payment into (7i) In Wilh'nson v. Joherns, 16 Eq. 18, liberty to bid was given to a Court. defendant entitled to a moiety of the property, upon the terms of hia being boiiud to pay into Court only a moiety of the piircliaKe money ; but in the subsequent case of Eoughtun v. Gibmn, 46 L. J., Ch. 366, tlie condition imposed was that the defendants, who were entitled to three- fourths, should pay into Court a moiety ; — payment of the extra fourth being directed in order to piovide for the plaintiffs co&ts. Interest on In Be Dracup, 1 Cli. (94) 59. parties who had purchased under leave to amounts set bid were charged with interest at 3 per cent, on the amount of the shares oiF. which they had been allowed to set off against the purchnse money. By s. 7 (repealed by the Trustee Act, 189o) s. 80 of the Trustee Act, 1850 (corresponding to s. 31 of the Act of 1893) was incorporated into the Act of 1868, set forth in the text. (i) All the Settled Estates Acts in force at the time of the passing of the Partition Act, 1868, have been since repealed by the Settled Estates Act, 1877 (c. 18). The provisions of ss. 23-25 of 19 & 20 Vict. c. 120, passed in 1856, have been, with some slight variations, re-enacted by 88. 34-36 of the Act of 1877 next set forth. See also supra, pp. 101, 102. POWERS OF COURT. 359 By the Partition Act, 1876 (c. 17), s. 7, it is enacted that [gjg ^"^"^ ^'^*' " for the purposes of the Partition Act, 1868, and of this Act, an action for partition shall include an action for sale and distribution of the proceeds, and in an action for partition, it Claim for shall be sufficient to claim a sale and distribution of the ^^^ ' '°°' proceeds, and it shall not be necessary to claim a partition." Ss. 3, 4, and 5 of the Act of 1868 above set forth are Ss. 3,4,5. independent enactments, though the}'' ought to be all con- ^f jggg strued together, (j) Under s. 4, the owner entitled to independent a moiety at least has an absolute right to a sale unless the j.^j^j^t™^'^ ' Court sees good reason to the contrary ; (Jc) and by s. 3 the thereunder. All money to be received on any sale effected under the authority of Settled Estates this Act, or to be set aside out of the rent or payments reserved on any Act, 1877 lease of earth, coal, stone, or minerals as afon-said, may, if the Court 'c. 18), s. 34. shall tliink fit, be paid to any trustees of whom it shall approve, or other- Application of wise the same, so far as relates to estates in England, shall be paid into sale moneys, Court ex -parte the applicant, in the matter of this Act, and so far as etc. relates to estates in Ireland, shall be paid into the Bank of Ireland to the account of tlie Accnuntant-General ex parte the applicant, iu the matter of this Act ; and such money shall be applied as the Court shall from time to time direct to some one or more of the following purposes, namely : — So far as relates to estates in England, the purchase or redemption of the land tax, and so far as relates to estates in Ireland, the pur- chase or redemption of rentcharge in lieu of tithes, crown rent, or quit rent. The discharge or redemption of any incumbrance affecting the hereditaments, in respect of which such money was paid, or aifecting any other hereditaments subject to the same uses or trusts; or The purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid; or The payment to any person becoming absolutely entitled. The application of the money in manner aforesaid may, if the Court S. 85. shall so direct, be made by the trustees (if any) without any application Application of to the Court, or otherwise upon an order of the Court, upon the petition moneys of the person who would be entitled to the possession or the receipt of the without rents and profits of the land, if the money had been invested in the application to purchase of land. Court. Until the money can be applied as aforesaid, the same shall be invested g. 36. as the Court shall direct, in some or one of the investments in which cash Investment under the control of the Court is, for the time being, authoiised to be ^j^,i payment invested ; and the interest and dividends of such investments shall be ^f dividends paid to the person who would have been entitled to the rents and profits g^c. ' of the land, if the money had been invested in the purchase of land. (j) Pitt V. Jones, 5 A pp. 659. (k) Porter v. Lopes, 7 Ch. D. 363; Pemberton v. Barnes, 6 Ch. 685; "Good reason Pitt V. Jones, supra ; Rowe v. Gray, 5 Ch. D. 263. See the first two of to the con- these cases, and also Wilkinson v. Joberns, 16 Eq. 14; Rowe v. Gray, trary.' supra ; Dicks v. Batten, W. N. (70) 173 ; Corpn. of Huddersfield v. 360 PARTITION. Court has a discretion to direct a sale and distribution of the proceeds at the request of a party or parties holding less than a moiety, if it should, for any of the reasons therein specified, appear that such a course would he more beneficial to the parties generally than a partition ; while under a. 5, the Court has a discretion to order a sale in every case (whether the sale would or would not be more beneficial for the parties than a partition), if any party (whether owning more or less than a moiety) requests a sale, unless the parties opposing a sale are willing to take his share at a valuation. If a party presses for a sale, and the Court thinks that the opposing parties ought in fairness either to buy him out or to consent to a sale, it may order a sale, unless they will agree to take his share at a valuation ; in which case the party requesting Party not a sale may either accept that valuation or not. If he does compellable to ^^^ choose to accept that valuation, he cannot be forced to do sell at . ■"• . valuation, SO; but will then have his Common Law right to a par- under s. 5. tition. (Z) Under this section the onus is on those applying Property ' f*^'" ^ ^^^ ^o show some good reason why the same ought to partly sold. be directed ; (m) but judgment may be pronounced for par- tition of part of the property in question and for sale of the remainder, (n) Partition of When the Court refuses to direct a sale, then if all the aliquot share, pej.gQ^g interested in one aliquot share agree with all those who are interested in another like share that they will remain tenants in common of those two aliquot shares, the Court will give efi^ect to that agreement ; and therefore the partition may, if the circumstances so require, be confined to the aliquot share of one party ; e.g., a plaintiff entitled to an undivided ei<>hth share may have allotted to him in severalty one-eighth of the property, and the defendants may continue to hold the remainder as tenants in common, (o) When person The Court has no power to pronounce judgment for par- "art^tion "^etc" ^^^^^'^ °^ ^^^^ under these Acts, when the entirety of the — overriding property is subject to overriding trusts and powers of trusts. Jacomh, W. N. (74) 80 ; Langmead v. Cockerton, 25 W. E. 315 ; Sazton v. Bartley, 27 W. R. 615, upon the question what is " good reason to the contrary." (I) Fitt V. Jones, 5 App. 659. As to s. 5, see alec Drinhwater v. Bat- cliffe, 20 Eq. 528. (m) Richardson v. Feary, 39 Ch. D. 45. (n) Boehuck v. Chadehet, 8 Eq. 127. {(>) Richardson v. Feanj, 39 Ch. D. 49. POWEHS OF COURT. 361 management which the cestuis que trust cannot put an end to, or to a subsisting trust for sale which any of the cestuis que Trust for sale. trust desire to be executed, (p) The existence of a power of sale in trustees is, however, no bar to a judgment for Power of sale, partition ; (g*) but the case is otherwise where one co- owner has mortgaged his share to another co-owner. The mortgagor can in such case only claim a partition or sale under the Acts, upon the terms of paying off the mortgage, (r) Before the Judicature Acts came into operation, it was Plaintift''s title considered that an alleged co-owner who had been out of "*1"^'''^ • possession for many years, and who had not clearly shown his title, could not, under the guise of filing a bill for jjar- tition, obtain a decree having the effect of a judgment in ejectment at Law. (s) As, however, the Chancery Division has, by virtue of those Acts, full power to try an action for the recovery of land, the mere fact that a plaintiff's title is disputed, is now no objection to commencing an action for partition or sale in that Division under such circumstances ; (<) but it should be borne in mind that the previous leave Leave of Court, of the Court is now necessary before joining in one action a claim for partition or sale with a claim for the recovery of land, (u) Moreover, the Court may, in a iudgment for Account of sale, add a direction for an account of the rents and profits pation rent. (p) Biggs v. Peacock, 22 Ch. Div. 284 ; see also Sioaine v. Denhy, Time of sale 14 Ch. D. 826, where it was held that when a testator has himself fixed fixed by will, the period at which the trustees of his will are to sell his real estate, and divide the proceeds, the Court has no jurisdiction to anticipate that period by directing a sale in a partition action at the request of persons equitably entitled to an undivided moiety of the property. (q) Boyd v. Allen, 24 Ch. D. 622. A power of exchange of lands is pro- Power of perly executed by a partition : Re Frith, 3 Ch. D. 618. exchange. The tenant for life of an undivided moiety of land, where the other undivided moiety is out of settlement, cannot sell the moiety of which he is tenant for life, without the concurrence of the owner of the other undivided moiety : Re Collinge, 36 Ch. D. 516 ; and see the Settled Land Act, 1882 (c. 38), ss. 3,4, 19. (r) Gibbs v. Haydon, 30 W. R. 726. (a) Giffard v. Williams, 5 Ch. 546. In this case the order made by the Court of Appeal was tliat the bill should be retained for a year, with liberty to the plaintiffs to bring such action as they might be advised. «) Waite v. Bingley, 21 Ch. D. 681. Upon the question what consti- tutes an ouster so as to enable a co-tenant in common to maintain trespass, see Jacobs v. Seward, L. K. 5 H. L. 464 ; Job v. Fotton, 20 Eq. 84. (m) See O. 18, r. 2 ; but it would appear to be at least doubtful whether a Action for plaintiff can combine in the same action a claim against his own mortgagee partition or to redeem him, with a claim for partition aguiust another defenclaut: redemption. Sinclrur v. Jamc?, 3 Ch. (91) 557. 362 PARTITION. Receiver ; — iiijuncttinn to restrain waste, etc. Moneys laid out in repairs by one of Several co-owners. Permanent improvements. Parties before the Chancery Amendment Act, 1852. Mortgagees of shares ; — of entirety. Injury to reversion ; — right to sue. received by any party who liaa been in possession of the entirety of the property ; and where one of the co-owners is in actual occupation otherwise than as tenant to his co- owners, the Court has power to direct an inquiry what sum is due from him in respect of such occupation, and to set off, as against his share of the sale money (but not to the prejudice of a mortgagee claiming under him) the amount which may be certified to be due in respect of such occupa- tion, (v) The Court has also in such case, and under the Judicature Act, 1873, s. 25, sub-s. 8, power to appoint a receiver until the trial, (w) It has also jurisdiction to grant an injunction to restrain a defendant from destroying or wasting the property, {x) One of the many inconveniences of co-ownership of real estate is that where one tenant in common expends money even on ordinary repairs, he has no right of action against his co-tenant fur contribution, so long as the property is enjoyed in common, [y) When, however, a partition or sale under the Partition Acts is effected, one party cannot take the increase in value, without making an allowance for moneys expended either in mere repairs, or for permanent improvements, whereby the selling price has been increased. In fact, the execution of the repairs and improvements will be deemed by the Court to be adopted and sanctioned by accepting the increased value, (z) Under the practice of the Court of Chancery prior to the Chancery Amendment Act, 1862, it was necessary to make parties to a partition suit all persons having any interest in the property in question, including mortgagees of any of the undivided shares, but not mortgagees of the entirety ; (a) nor annuitants whose annuities weie charged on the entirety. (5) Therefore a defendant entitled to an undivided share cannot now object to a judgment for partition or sale on the mere (-!)) Burnell v. B., 11 Ch. D. 21R ; Ein v. IlicMn, 2 Ch. (97) 579. (w) Porter v. Lopes, 7 Ch. D. 358. As to the right of one temmt in common to sue a lessee for damages for breach of a eovciiant entered into by the latter with a former owner of the entirety of the property, and running with the Lind, or in respect of an injury to the reversion, see Eohertsy. Holland, 1 Q. B. (9.3) 665. (x) Bailey y. Hobson, 5 Ch. 180. ly) Leigh v. Dickeson, 15 Q. B. Div. 67. (z) Ih. ; Be Jones, 2 Ch. (9.3) 478; Be Cool:, 1 Ch. (96) 92.3. (a) Sioan v. S., 8 Price, 518 ; Waite v. Bingley, 21 Cli. D. 681 ; Sinclair V. James, 3 Ch. (91) 554. (6) Hixon V. Eastwood, 17 L. T. 489. PARTIES. 3G3 ground that ho is himself a mortgagee of the entirety; {c) nor on the ground that third parties have rights of common over the soil, {d) When any uf the undivided shares were settled in strict settlement, it was not necessary to make parties to the suit any persons entitled subsequently to the estate of the first tenant in tail in remainder of full age. AVhere the plaintiff was entitled to an undivided share in a term of Leaseholds ;— ,,,,, . T.1JI, reversioner, years, it was not necessary that the reversioner snould be made a party to a suit dealing only with the leasehold interest in the property. It was held long before the passing of the Partition Acts, Unborn that where a share in the property was limited to a person P*^" for life with remainder to his unborn sons, a decree for partition might be obtained in a suit to which the tenant for life was a party, and that the decree would quite indepen- dently of the old Trustee Acts be binding in Ec^uity on the sons when they should come into existence. (/) Then any legal estate which might at a future time be vested in such unborn sons could have been acquired under s. 30 of the Trustee Act, 1850 (c. 60), corresponding to s. 31 of the Act of 1893 (c. 53), (oii. for partition, and to the superior machinery in the Cham- bers of that Division, The indorsement on the writ is, (under App. A, Part III., s. iv. to the present Rules of Court), in the simple form, " The plaintiff's claim is for dower." The Fo'm of usual form of judgment (ni) includes a direction for the ^^ S^^^ • defendant to deliver to the plaintiff possession of the lands which have been assigned to her in respect of her dower, and an account of the rents and profits of the lands received by or on behalf of the defendant, and payment of diie-third of such rents to her. The old rule of the Court of Chancery as to costs, was, in Costs of action, analogy to the rule at Common Law upon a writ of dower, to give no costs to either party; but this rule was sometimes departed from in the case of a defendant setting up an unten- able defence, and adducing evidence in support thereof, or being otherwise guilty of misconduct, (n) The costs are now in the discretion of the Court. By the Statute of Limitation, 3 & 4 Will. 4, c. 27, s. 41, a Statute of widow is precluded from recovering arrears of dower for more ^'""'tation. than six years before the commencement of the action. (h) Ld. Kedesdale on Pleading, 121. (Z) See supra, p. 3. (m) See 2 Seton, 805, 806. (m) Ld. Redesdale on Pleading, 122 ; Stormont v. Wiclcens, 14 W. R. 192. 2 B 2 372 SETTLEMENT OF BOUNDARIES. Section V. — Settlement of Boundaries. Jurisdiction The exercise of the jurisdiction of the Court of Chancery discretionary; ^q g^ ^]^q boundaries of property held by adjoining land- owners, under legal titles, which it originally carried into effect by means of a commission similar to that directed in a partition suit, was not, as in such a suit, a matter ex debito justitise, but was a matter for the discretion of the Court, origin of; The jurisdiction is said by some of the Judges to have arisen with the view of preventing multiplicity of suits, as in cases where the tenants of a manor claimed a right of common by custom, and the rights of all the tenants could be determined by ascertaining the rights of one of them ; but some Judges have expressed an opinion to the effect that the jurisdiction arose, in the first instance, by consent, and that then the next step probably was to order a commission to issue, at the suit of a person who showed an equitable ground for obtain- ing the same ; e.g. where a person, by reason of the confusion of boundaries, was prevented from commencing an action of ejectment ; or where the owner of a rentcharge, with powers of distress and entry was prevented from recovering the pay- when exer- ments which became due in respect thereof. The Court cised. would not entertain a Bill to ascertain boundaries " unless," in the words of Lord Keeper Henley in a case of Wake v. Conyers,{o) decided in 1759, "some equity is superinduced by the act of the parties, as some particular circumstance of fraud, or confusion, where one party has ploughed too near the other; or the like." The Lord Keeper also observed, " all the cases where the Court has entertained Bills for establish- ing boundaries, have been where the soil itself was in question, or where there might have been a multiplicity of suits ; " and as the suit, in the case before him, had been commenced in order to ascertain the boundaries of two manors, as to which there was no dispute in relation to the soil, he dismissed the Bill. In the course of his judgment the Lord Keeper also said, as to Bills of this nature, " they originally came into this Court under the equity of prevent- ing multiplicity of suits ; yet in those cases, I have observed that they have been sometimes attended with more expense than if all the suits which they apprehended, and which (o) 1 Eden. 331. See also A. G. v. Stephens, G D. M. & G. 149. SETTLEMENT OF BOUNDARIES. 373 tliey were brought to prevent, had actually been tried at Law." So also a Bill filed by a rector for an account of tithes, and Boundaries of for a commission to settle the boundaries of the parish and 1*'*'^"' the glebe, was dismissed ; (p) and the like result followed in another case, where a Bill was filed to determine the boun- daries of two adjoining parishes, with a view to settling a dispute as to poor rates. (5) The Court of Chancery would, however, direct a com- Plaintiirs title mission to issue to ascertain boundaries, if the plaintiff showed not merely some such equitable ground as above mentioned, for the assistance of the Court, but also that without the assistance of the Court, the boundaries could not be ascertained, (r) — or at all events, could not be ascer- tained without a multiplicity of suits ; and it was also incumbent upon him, in such case, to show a clear title to some land in the possession of the defendant, (s) Sir William Grant, M.E., in an old case of Speer v.Speery. Crawler, (t) held that the Court would not grant a com- ^''""'^f 5— 1 1 p • 1- J default of mission to ascertain boundaries, unless the confusion had defendant. arisen from some misconduct on the part of the defendant, or of those under whom he claimed. But in HicJcs v. Hicks v. Eastings, (m) a testatrix by her will appointed the manor of ^'^^^"'3^. W. to uses under which the plaintiff became tenant in tail in possession, and devised her residuary real estate to her trustees, upon trust to sell. The trustees sold, inter alia, a field part of which was shown by the abstract of title to be parcel of the manor ; and procured the legal estate in the whole to be conveyed to the purchaser. It was held by Wood, V.C, that notwithstanding that the confusion in the boundaries had been occasioned by parties through whom the plaintiff claimed, she was not to be precluded from claiming a portion of the land, and a proportionate part of the rents ; and his Honour directed an inquiry in Chambers, in what part of the field the plaintiff's portion was situated. A doubt was suggested by Bacon, V.C, in the year Jurisdiction °° '' exercised since Judicature (p) Athtjns V. Hatton, 2 Anstr. 386; but compare Eiclcs v. Hastings, _A.cts. 3 K. & J. 706. (2) St. Luke's V. St. Leonhard's, 1 Bro. C. C. 40. (r) Miller v. Warmington, 1 J. & W. 491. (s) Godfrey v. Littell, 1 Kuss. & My. 59 on app. 2 ih. 630. (0 2 Mer. 410. (u) Supra. 374 SETTLEMENT OF BOUNDARIES. Liability of tenant to pre- serve boun- daries. Spike T. Harding. Tenant for life, volun- teers, and purchasers. Searle v. Coolie ; — rent- charge under Copyhold Acts. 1876, (v) whether the jurisdiction now under consideration would be exercised since the Judicature Acts came into operation. It would appear that there is no ground for any such doubt ; and that the Court will still, where the old legal remedy is imperfect, continue to exercise the jurisdic- tion ; (w) but it will be exercised with, if possible, eren more scrupulous jealousy than it was exercised by the Court of Chancery, prior to the passing of those Acts. It is the duty of a tenant for years of land immediately adjoining other land of his own, not merely to leaTe the boundaries between his own land and that of his landlord distinct at the expiration of the term or tenancy, but to keep it distinct duriug the term ; and if the tenant neglects his duty in this respect, and suifers the boundaries to be so confused, that the landlord cannot ascertain the land to which he is entitled, the Court will give relief by compelling the tenant to make the unascertained portion good out of his own land. Thus in S;pike v. Harding, (x) Fry, J., directed a commission to issue to ascertain the boundaries of land demised for a term of five hundred years by the plaintiff's predecessor in title to the defendant's predecessor, by whose conduct the boundaries had become confused ; but at the suggestion of counsel, his Lordship directed an inquiry in Chambers in lieu of a commission, as being a more con- venient course to adopt. It hatl been previously held by Lord Cranworth, L.C., (?/) that such relief would be given, not only against a tenant for years, but also against a tenant for life, and all persons claiming under him, either as volunteers or as purchasers with notice. So also in Searle v. Coohe, (z) the lord of the manor enfranchised a copyhold tenement under the Copyholds Act, 1852 (c. 51), reserving three rentcharges to himself. The boundaries had become confused before the enfranchisement ; and the lord did not avail himself of the power to have the boundaries ascertained under s. 24 of that Act, corresponding to s. 52 (3) of the Copyhold Act, 1894 (c. 46). The defen- dant, the owner of the enfranchised tenement, refused to pay the rentcharges to the plaintiffs, who were the owners (v) LasceUes v. Butt, 2 Ch. D. 593. (w) Searle v. Cooke, 43 Ch. Div. 527. (z) 7 Ch. D. 871. (?/) A. G. V. Stephens, 6 D. M. & G. 134. (z) Supra. I SETTLEMENT OF BOUNDARIES. 375 thereof, under an assignment from the lords of the manor ; and by reason of the confusion of the boundaries, the plain - tiffs were unable to exercise the power given to them by s. 16 of the Copyhold Act, 1887 (c. 73), corresponding to s. 27 (e) of the Act of 1894, whereby such a rentcharge was made recoverable by the remedies (by distress and entry, and otherwise) given by s. 44 of the Conveyancing Act, 1881. As to one of the rentcharges, Kay, J,, was able, upon the evidence before him, to distinguish the property subject thereto, and he made a declaration to that effect ; as to the two others, he directed an inquiry to ascertain the lands subject thereto ; and ordered that if the lands could not be ascertained, property of the defendant's to an equal extent, should be set out and substituted for them, so as to enable the plaintiffs to enforce their remedy by distress. He also gave to the plaintiffs judgment for payment by the defendant personally of the arrears of the rentcharges ; and as he Costa, considered the non-payment of the rentcharges was not justifiable, he ordered the defendant to pay the costs up to and including the trial, the other costs being specially reserved, in order that the Court might have the means of securing that the judgment should be fairly worked out, and not used oppressively. This decision was confirmed by the Court of Appeal, the Court holding that an action for debt would have been maintainable at Law for these arrears before the Judicature Acts. With regard to the direction for the payment personally Personal of the arrears of the rentcharges, it has recently been decided payment of by Stirling, J., (a) that though a person in whom land rentcharge. subject to rentcharge has become vested for all the estate of the grantor of the rentcharge is, since the abolition of real actions by the Statute 3 & 4 Will. 4 (c. 27), s. 36, personally liable to pay the rentcharge, yet such liability does not attach to a mere tenant for years claiming under such grantor. (a) Be Herbage Bents, 2 Ch. (96) 811. ( 37G ) CHAPTEE XIV. MORTGAGES, CHARGES, AND UENS. Section I. — Nature and effect of Mortgage. ^"?'" J*^ The equitable doctrines of the Court of Chancery as to doctrines as to mortgages were borrowed, to a considerable extent, from mortgages— the Civil Law of Eome. They were introduced in the interests of the mortgagor, and with a view to mitigating the harshness of the rules of Common Law in reference to transactions between borrowers and lenders. When real estate was in consideration of a loan enfeoffed or conveyed by the borrower to the lender, subject to a condition in the old form, that on repayment of the sum borrowed on a given day with interest, the feoffment or conveyance should be void ; then according to the old Common Law principles, and up to the reign of King George the Second, if the mortgagor failed to pay the money and interest on or before the appointed day, the property was lost, or dead to the borrower ; (a) and belonged abso- lutely to the mortgagee ; so that an estate might have been forfeited for non-payment of a sum of money less than one- tenth of its value. To prevent such an injustice, Courts of Equity, in the course of time, interposed, and enabled the mortgagor, notwithstanding that the estate had been absolutely forfeited at Law, to compel the mortgagee to reconvey the same, upon being paid his principal money, with interest up to the time of the reconveyance, and all costs, charges, and expenses properly incurred by him in relation to the security — holding that the intention of the parties was in fact security only ; and that the mortgagee was sufficiently compensated for the delay in payment by the additional (a) Hence the origin of the term mortuum vadium, or mortgage, as distinguished from the vivum vadium, living pledge!, or Welsli mortgage : — where the mortgagee held the property until the debt and interest should be discharged. Tliis latter kind of mortgage was very httlo used even in ancient times. JURISDICTION. 377 interest which he received for the period which had elapsed between the appointed day and the time of actual payment. (6) The mortgagor had a corresponding right of Trust for sale, redemption when the security took the form not even now entirely unknown, of a trust for the mortgagee to sell the property; and out of the proceeds of sale, to retain the amount owing to him, and to pay the surplus, if any, to the mortgagor, (c) Where a mortgage deed contains a proviso for redemption Interest pay- and reconveyance in the usual form, on payment of the ^^^"^ ^^^^\ *'^®, , , , ^ "^ ... 'ule v. Sijnioiids, 16 B. 406. As to s. 4 of the Intestates Act generally, see Re Wood, 2 Ch. (96) 596. {h) Fearce v. Aorris, 5 Ch. 2z9 ; Mutual, &c.. Society v. Langley, 32 Ch. Div. 467. (i) Hall V. Heioard, 32 Ch. D. 434. (i) Ih (A) Hall V. Reward. 32 Ch. D, 434. {l) Kinnaird v. TroUope, 39 Ch. D. 636. CONSOLIDATION. 391 of redemption, the assignee has further charged the property, either to the original mortgagee or to some other person. («») A mortgagoris not, as a rule, entitled to institute proceedings 0. 54, A. r. 1 ; against the mortgagee in respect of the mortgage, without "''^.'f '°" ^J._ offering to redeem. But it has been recently held that he is oiler to° entitled, without making any such offer, to apply by originat- redeem, ing summons, under 0. 54, A. r. 1, for the determination of a question of construction arising under the mortgage deed, {mrti) Section IV. — Consolidation of Mortgages. Prior to the Conveyancing and Law of Property Act, 1881, Right to where several estates had been mortgaged by the same consolidate, mortgagor to the same mortgagee, though at different times, and by different instruments, neither the mortgagor nor any person claiming under him was, as a rule, entitled to redeem one or more of the mortgages without redeeming all. (n) The rule was founded on the maxim that " he who seeks Equity must do Efjuity." When a mortgagor came into Equity claim- ing redemption of property which had been forfeited at law for non-payment of the principal and interest, the Court gave to him, as plaintiff, the relief sought, only on the terms of his paying all that was due from him to the mortgagee, who thus had the right to " consolidate " his securities. A like principle was afterwards applied where the mortgagee sought relief by way of foreclosure. If, however, there had '^o right to been, as to one of the mortgages, no default in payment ; e.g. f*''^^*° V^.^ , where the day appointed for payment in a legal mortgage in the ordinary form had not arrived, it would have been against the terms of the contract contained in the proviso for redemption, to allow the mortgagee to consolidate ; and he was therefore not entitled so to do. (o) In other respects Rule applic- the rule applied whether the mortsrages were lee-al or ^ f *° l^'Sf ■'■■'■ o o o auj equitable equitiible ; (jp) and a person who purchased or took a mort- mortgages ; gage of the equity of redemption in the property comprised and to pur- in one of the mortgages, took subject to this, and every other chaser, &c., of equity to which the property was subject in the hands of redemption. the mortgagor. (m) lb. imm) Re Nobbs, 2 Cb. (96) 830. (n) Griffith v. Found, 45 Ch. D. 553; Bird v. Wenn, 33 ib. 215. Co) Cummins v. Fletcher, 14 Ch. Div. 699 (building society's mortgage). ip) Neve V. Pennell, 2 H. & M. 170 ; Cracknall v. Junson, 11 Ch. Div. 1. 392 MORTGAGES. Mortgage of another estate after sale of equity of redemption. Consolidation of insufficient witli sufficient security. Both mort- gages becom- ing united after sale. Separate and partnership debts. Conv. Act, 1881, s. 17. Restriction on right. Section not etrospective. Effect of excludipg section. Notice to pay otj: Where, however, the mortgagor sold his equity of redemp- tion in one estate and afterwards mortgaged another estate to the person who was mortgagee of the first estate, the latter had no right to consolidate, (q) If an owner of two properties mortgaged one to A., and the other to B., and then A.'s mortgage was transferred to B., or both were transferred to C, the owner could not after- wards redeem B. in the one case, or C. in the other, in respect of one of his securities, without redeeming the other also, (r) But when two mortgages made by the same mortgagor to different mortgagees on different estates, became united for the first time in one person after the mortgagor had assigned {hy way either of sale or mortgage) the equity of redemption of one of them, the owner of the two mortgages could not consolidate them as against the assignee of the equity of redemption, even though both the mortgages were created before the assignment, (s) Neither was there any right to consoliJate between a separate mortgage by one of two partners for a separate debt of his own, and a mortgage of other property by both partners to secure a partnership debt, (t) By the Conveyancing Act, 1881 (c. 41) s. 17 it is enacted that " a mortgagor seeking to redeem any one mortgage, shall by virtue of this Act, be entitled to do so, without paying any money due under any separate mortgage made by him or by any person through whom he claims, on pro^ pel ty other than that comprised in the mortgage which he seeks to redeem." The section applies only to mortgages created after 1881, and where no contrary intention appears by the mortgage deeds or one of them. When a mortgage deed contains a declaration that the section shall not apply, the paities are in the same position as they would have been if the Act had not been passed, (m) and the right to consolidate will not, in that case, be affected by the original mortgagee having given to the purchaser or (g) Jennings v. Jordan, 6 App. 698 ; Squire v. Pardee, 66 L. T. 243 ; Be Walhampton Estate, 26 Ch. D. 391. (r) Pledge v. White, A. C. (96) 187 ; Biley v. Hall, W. N. (98) 81 (9). (s) Barter v. Colman, 19 Cti. D. 630 ; Minter v. Carr, 3 Ch. (94) 498, C A. (0 Cummins v. Fletcher, 14 Ch. Div. 711 ; Be Baggett, 16 Ch. Div. 117. (m) Bird V. Wenn, 33 Ch, D. 217. RIOETS AND LIABILITIES OF MORTGAGEE. 393 mortgagee of the equity of redemption, notice to pa}' off the mortgage money with a view to the exercise of the power of sale, (v) Section V. — Bights and Liabilities of Mortgagee. Immediately upon the execution of a legal mortgage in Possession. the ordinary form, the mortgagee, having the legal estate, is entitled to enter into possession or receipt of the rents and profits of the property, and he may, in general, commence an action for this purpose, in absence of a provision for quiet enjoyment until default. With this qualification, the mortgagor, so long as he remains in possession of the pro- perty, is somewhat in the nature of a tenant at sufi'er- ance (w) to the mortgagee ; and until he shall have paid the amount due from hiin for principal and interest, and costs, if any, he may be evicted without notice, (x) So long, Mortgn^nmot however, as he is allowed by the mortgagee to continue in -iccountable • . V 1 -, r. n , . ■, , for rent receipt ot the rents and profits oi the property, he cannot be compelled to account for what he may have received, whether before or after the day fixed for the payment of the money secured, (y) A like principle applies as between a Second first mortgagee who has not, and a second mortgagee who ™oi'tgagee. has entered into possession. (2) A mortgagor may fell Felling of timber on the property, if it clearly appears that by so t"""^^^"- doing, the security will not iu any way be prejudiced or endangered ; but if it would, or if the mortgagor should Injunction to attempt to commit any other kind of waste having the '^'' ^'"'^ * ^ ' like effect, he may be restrained by injunction from so doing, (a) Prior to the passing of the Conveyancing Act, 1881, a Power to mortgagor could not, after the mortgage, and in absence of ?'"^°* ^^'^*^*» special power reserved or given to him, grant leases or create tenancies which would be binding on the mortgagee ; nor would leases or tenacies granted or created by the latter, be binding on the mortgagor in the event of his redeeming. (v) Griffith v. Pound, 45 Ch. D. 553. (w) But according to Fry, J., in Be Sands, 22 Ch. D. 61G, a tenant at will. (x) Gibbs V. CruikshanJc, L. R. 8 C. P. 461. (y) Re Hoare, 3 Ch. (^92) 94; Yorhshire Bunking Co. v. Mullan, 35 Ch. D. 125. (z) Garfitt V. Allen. 37 Ch. D. 50. (a) Simmins v. Shirley, 6 Ch. D. 175. As to the power of a mortgagee Power of to cut timber, and to insure buildings, &c. against loas or damage by fire, mortgagee to see s. 19 of the Conveyancing Act I8S1 (c. 41). cut timber. 394 MORTGAGES. Mortgagee's rights under Act agiiinst lessee of mort- gagor. Leases granted before mortgage. How mort- gagee obtains possession. Power of distress — attornment clause. " Best rent " ; covenant to build. Bills of Sale Act, 1878, s. 6 Exception. Application of proceeds of distress. The power in question has now been conferred by s. 18, sub-s. 1 of that Act on the mortgagor when in possession, and by stib-s. 2 on the mortgagee when in possession, so far as relates to mortgages made by deed after the Act, or brought within its provisions by agreement entered into subsequently ; but with certain restrictions therein contained. (6) This statutory power is liable to be controlled by the provisions of the mortgage deed. When a mortgagor in possession grants a lease in con- formity with this section, the mortgagee, on giving notice to the tenant, and going into pofesession, is entitled by virtue of the Act to enforce the covenants and conditions of the lease in the same manner as if he had been a party thereto ; and this right cannot be affected by any collateral agreement between the lessor and the lessee, (c) The mortgagee would have a similar right independently of the Statute, so far as relates to leases and tenancies existing at the date of the mortgage, except that he would, as a rule, take subject to the rights of the tenants. When the mortgagor is, in the case of a legal mortgage, in actual occupation, then unless the latter will attorn and become his tenant at a rent, the mortgagee, if he desires to obtain possession, must bring an action for the recovery of the property, corresponding to the old action of ejectment. Prior to the year 1878, this difficulty was usually avoided by the insertion in the mortgage deed of a power of disti ess, or, what was better still, of an attornment clause in the mortgage deed, whereby the mortgagor became tenant to the mortgagee at a rent generally equal to the inteiest on the moneys secured ; and whereby the latter was enabled, as landlord, to distrain when his interest was in arrear. But a mortgagee cannot now distrain under such a power or clause in the mortgage deed, unless the deed be registered as a bill of sale, (d) to which a mortgagor would not, as a rule, submit. (6) Upon the question what is the " best rent " under sub-s. 6, see Benner v. Tolley, 68 L. T. 815 (coveTiant to build). (c) Municipal, &c., Society \. Smith, 22 Q. B. Div. 70 ; Wilsonv. Queen's Club, 3 Ch. (91) 522. (d) See 8. 6 of the Bills of Sale Act 1878 (c. 31); Green v. Marsh, 2 Q. B. (92) 330 ; Scohie v. Collim, 1 Q. B. (95) 375. The section contains a proviso exempting from its operation cases where a mortgagee in possession shall have demioed the property to the mortgagor at a fair rent. The proceeds of a distress under an attornment clause are, as a rule, applicable for payment uf principal as well as interest : Be Beits, 18 Ch. Div. 127. MIGHTS AND LIABILITIES OF MORTGAGEE. 395 An attornment clause in the nsnal form will, however, enable the mortgagee, when the rent is in arrear, to endorse specially, under (). 3, r. 6 (f), a writ to recover possession, and to sign judgment under 0. 14. (dd) When the property is in the occixpation of a tenant whose Property in tenancy was created prior to tlie mortgage, the mortgagee tenant enters into possession, or more correctly speaking, into receipt of the rents and profits, (e) by giving notice requiring the tenant to pay to himself (the mortgagee) any rent in arrear, and the future rent ; and the tenant will be bound so to pay accordingly, or be liable to be sued, distrained upon, or evicted. The like observation applies to the case of a tenancy created subsequently to the mortgage, if it come within s. 18 of the Conveyancing Act, 1881. But if s. 18 has been excluded, the case stands on the same footing as it would have done before the Act. The mortgagee can, in such case, either evict the tenant, (/) or ct)mpel him to Constmctive attorn as tenant to himself under threat of eviction, and if, T'^ ^T^ c ' ' tenant or in the latter case, the mortgagor were to commence an action mortgagor, to compel the tenant to pay over again to him any rent paid to the mortgagee in consequence of the thi'eat, the payment to the mortgagee would afford an answer to the action, just as if the tenant had been actually evicted, and had after- wards had a new tenancy granted to him. (j/) The mort- gagor would, in such case, have no right to distrain upon the tenant for rent paid to the mortgagee, because the tenant would be deemed under the circumstances to have been con- structively evicted by a person claiming by title paramount to that of his original landlord, (li) The tenancy thus created, though at the same rent as was originally payable New tenancy to the mortgagor, would be a new tenancy ; aud in absence *"*"'^''>' of agreement to the contrary, a mere tenancy from year to year — even if the tenant had previously held from the mortgagor under an agreement for a lease. (J) Every mortgage with power of sale confers upon the Discretion of mortgagee the right to realise his security, and to find a ^^J'^^^^^^sale idd) Kemp v. Lester, 2 Q. B. (96) 162, C. A. (e) In either case the mortgagee is called a mortgagee in possession.' (/) Toiverson v. Jackson, 2 Q. B. (91) 486; Moss v. GulUmon', 1 Smith, L. C. 497. (<7) Underhay v. Read, 20 Q. B. Div. 209. (h) Smith V. Eqgington, L. R. 9 C. P. 145. (0 Corbett V. Ploiv'den, 25 Ch. Div. 682. 396 MOB TG AGES. Liability for carolessuess, &c.. in selling, for interest on sur])lus sale money for breach of covenant. Fiduciary relation. Limitation.of power to sell. Conflict of interest and duty. Improper exercise of power ; — injunction ;- terms. purchaser of the property if he can ; and if, in exercise of this right, ho acts hondjide, and takes reasonable precautions to obtain a proper price, the mortgagor has no redi'ess, even though more might have been obtained for the property, if the sale had been postponed ; (/c) but the mortgagee is liable to make good any loss arising from want of due care or diligence in selling. (/)• He is also liable, as a rule, to pay interest at the rate of 4 per cent, per annum upon any surplus sale money which he retains unproductive in his hands,^ — even where be cannot ascertain who are the parties entitled thereto ; (w) for he can, in this case, save himself from such liability by paying the .surplus money into Court, under s. 42 of the Trustee Act, 1893. (n) He is also liable, in the case of leasehold property, for dealings with the same contrary to the covenants of the lease, (o). A mortgagee has sometimes been said to stand in a fidu- ciary relation towards the mortgagor. This is not correct ; because he has rights of his own which he is entitled to exercise adversely to the mortgagor. Still in exercising his power of t-ale, he has no right to sell as an absolute owner may, regardless of the rights of all persons other than him- self. He has no right in selling to place himself in such a position as to give rise to a conflict of interest and duty ; and if he do so, the onus may be cast upon him of upholding the sale, (p) But he is not precluded from selling by private contract under his power, to one of several co-owners of the equity of redemption, (jpp) The Court has power to restrain a mortgagee by injunction from unfairly exercising his power of sale ; but as a rule, this power will, on an interlocutory application, only be exercised on the terms of the mortgagor bringing into Court the amount sworn by the mortgagee to be due to him. (q) Misdescribing property. Mortgagee a trustee when fully paid. (/i) Farrar v. Farrars, 40 Ch. Div. 411 ; Kennedy v. De Trafford, A. C. (97j 180 ; Warner v. Jacob, 20 Cli. D. 220. (I) Tomlin v. Luce, 43 Ch. Div. 191 (misdescribinpf property in particulars of sale) ; National, &c. Banh v. United, &c. Co., 4 App. 392. (m) Charles v. Jones, 35 Ch. D. 544 ; Eley v. Read, 76 L. T. 39, C. A. (ri) C. 53 ; Re Walhampton Estate, 26 Ch. D. 391. (o) Taylor v. Mostyn, 33 Ch. Div. 226. See S. C. as to improper working of leasehold mines. (p) Farrar v. Farrars, 40 Ch. Div. 411 ; Tomlinv. Luce, 41 Ch. D. 575; 43 Ch. Div. 191 ; but a moitgagee who has been fully paid is a trustee for the mortgagor : Re iiands, 22 Ch. D. 614. (pp) Kennedy v. I>e Trafford, supra. Iq) Brewer v. Square, 2'Gb. (92; 114. niGHTS AND LIABILITIES OF MORTGAGEE. 397 The rule may, however, be relaxed when it is clear that the mortgagee is claiming too much ; (r) or when he stands in a fiduciary or confidential relation — e.g. in the relation of solicitor, towards the mortgagor. («) A first mortgagee who, upon selling under his power, or first mort- with the concurrence of the mortgagor, and after receiving ^''^^^? I^''>''"S o D ' o surplus sale- notice of a second mortgage, pays over the entire surplus of money to the sale money received by him to the mortgagor or any mortgagor. person other than the second mortgagee, will be liable to make good such surplus money to the second mortgagee, (t) But this rule does not apply where a second mortgage includes a right Right to to further advances by a first mortgagee : and if, in such f'^'*"'^'' "^ » » ' ' advances. case, the first mortgagee make the further advances to the mortgagor after notice of the second mortgage, he will not thereby become subject to any liability to the second mortgagee, (m) The mortgagee, in exercising his power of sale cannot. Mortgagee either hy himself or an agent, purchase the property on his ^*^' _"|» ^^nnot own account. If he do so, the sale can be set aside, and the mortgagor will be entitled to redeem, (v) "When a mortgage is made by several mortgagors, the Re-con voyance mortgagee must, as a rule, upon being paid oif, re-convev to *° * ,, V -pt'/xt mortgagors. all the mortgagors if living, (w) In a recent case, (x) a (r) Hichson v. Barlow, 23 Ch. D. 690. (s) Macltod V. Jones, 24 Ch. D. 300. Uiion the question how far an old Old and new power of sale is capable of being exercised after the creation of a new powers of sale, power, see Boyd v. Petrie, 7 Cli. 385. As to the equities between an exe-ution creditor and debenture Execution holders, see Taunton v. 5. of Warwickshire, 2 Ch. (95) 31li ; Damy v. creditor ;— Williamson, 2 Q. B. (98) 194; and as to the rights of debenture holders debenture to moneys recovered under the Companies Act, 1890 (c. G3), s. 10, see Re holders ; — Anglo-Austrian, etc., Union, 2 Ch. (.15/ 891. Conip;inies As to the riglit of a debenture holder by way of floating security to Act, 1890, realise on the company going into liquidation, see Wallace v. Universal, s. 1 u. &c. Co. 2 Ch. (94) 547. (0 West London, &c. Bank v. Reliance, &c. Society, 29 Ch. Div. 954 ; Thome v. Heard, A. C (95) 495. As to the liability of a mortgagee for I^oss of title the loss of the mortgage deed, or of tlie title deeds or indicia of ownership deeds, &c. of the property, see James v. Rumsey, 11 Ch. D. 398 ; Caldwell v. Matthews, 62 L. T. 799. (m) Western, d'C. Co. v. West, 1 Ch. (92) 271. (v) Martinson v. Clowes, 21 Cli. D. 860, on appeal W. N. (85) 41 ; Sale money National, &c. Bank v. United, &c. Co.. 4 App. 391 ; Henderson v. Asfwood, remaining on A. C. (94) 150 P. C. As to the right of a mortgagee to sell on tlio terms mortgage ; — • of the sale money remaining on mortgage of the property or being payable instalments. by instalments, see Thurlotv v. Muckeson, L. K. 4 Q. B. 97. (w) As to the effect of an advance expressed to be made by several Joint account, mortgagees out of money belonging to them on a joint account, see the Conveyancing Act, 1881, s. 61 : Ee Jackson, 34 Ch. D 732. (x) Magnus v. Queensland, &c. Bank, 37 Ch. Div. 466. 398 MORTOAQES. New lease obtained by mortgagee ; — by mortgagor ; — purchase of reversion. Mistake as to notices. Duty of solicitor mortgagee in preparing deed. Improper dealing with security. Jlortgagee in possession ; — accounts. Vouchers. Wilful default, mortgagee bank was held liable to replace Railway Stock lust by being trans t'erred to a purchaser from one of several mortgagors. When a mortgagee of chattels real obtains a new lease of the property, he will only be entitled thereto subject to the equity of redemption. So also, the owner of the equity of redemption of a renewable lease can only hold a new lease obtained by him subject to the mortgage ; and a like rule applies where the mortgagor purchases the reversion expectant on the lease. («/) If a mortgagee, upon being -asked by a person about to advance further money on the property, whether he has received notice of any other incumbrances, Honestly answer in the negative, he will not incur any liability, if it turn out that he was mistaken. He is not even bound to answer the inquiry, (z). It has been held that a solicitor who, before the passing of the Conveyancing Act, 1881, took from his client without explanation, a mortgage containing a more stringent power of sale than the usual one, with a proviso preventing its exercise except when there should be six calendar months' default in jsayment after notice, or when the interest should be in arrear for at least three months, and who exercised the power when neither of these conditions existed, was liable in damages to his client for so doing, (a) The solicitor mort- gagee should, in such case, point out to the client how far the terms on which he is willing to lend the money differ from those usually required. (&) A mortgagee is bound to account for any profit he may have made by improperly dealing with the security ; (c) and if he enters into possession he is bound, like a trustee, to keep very strict accounts of all rents and profits received by him, and of all mone3's expended by him on the property ; and must keep all his vouchers, and be prepared to justify every item nf his expenditure, (d) He is bound, in an action for redemption or foreclosure, and without any special case (?/) Leigh v. Burnett, 29 Ch. D. 234. (2) Low V. Bouverie, 3 Ch. (91) 82. See supra, p. 53. (rt) Cochburn v. Edwards, 18 Ch. Div. 456. (6) Compare Poolei/s Trustee v. Whetham, 33 Ch. Div. 3 22, where tiie mortgage was given to secure a bill of costs as the result of pressure put b\ the solicitor on the client for payment, ■ (c) Langfon v. Waite, 4 Ch. 402. (,<■?) Union Bank v. Ingram, 10 Ch. D. 57. RIGHTS AND LIABILITIES OF MOBTGAOEE. 399 being made out against him, to account not only for the rents and profits which he actually receives, but also for such as, without his wilful default, he might have received ; (e) and he is also liable to be charged with a proper occupation Occupation rent in respect of any part of the property which he himself ''*^"'^- actually occupies. (/) Moreover, when the accounts are Receipts by- being taken by the Court against a mortgagee in possession, '^S'^i'^- an account showing only in lump sums the moneys which he has received from an agent employed by him to collect the rents, is not sufficient. He must also show how much the latter has received from the tenants, (fj) A mortgagee is entitled in taking the accoxints. under the Ordinary head of "just allowances," and without any special direc- [^P^'^'* V^'f"" T . T , . . , tecting title, tion m the judgment, to be credited with all moneys laid &c. out by him in necessary repairs, and in protecting the title to the property ; (Ji) but if he claims in respect of permanent Substantial improvements or substantial repairs, he must, at the trial, repairs, make out a special case in order to have the same allowed, (i) He will not be allowed, in an action for redemption, money laid out in improvements which would make it too ex- pensive for the mortgagor to redeem, or which would have the eifect of " improving him out of his property," (/) but in an action to recover the surplus money realised by the mortgagee on the exercise of his power of sale, the latter will be entitled to any moneys laid out in substantial repairs or lasting improvements, if the sale moneys have thereby been increased. If the mortgagee prove at the trial that he Inquiry as to has laid out moneys which are prima facie improvements, he ''"pio^'ements. will be entitled, at his own risk, to an inquiry as to how far (e) Farhinson v. Hanhury, L. K. 2 H. L. 1 ; Mayer v. Murray, 8 Cli. D. 424. (J) Shepard v. Jones, 21 Ch. Div. 475 ; Henderson v. Astwood, A. C. Mortgagee (94) 163 P. 0. Where mortgagees in possession, who were brewers, let brewers ; — the property with a condition that the tenant should take his supply of ])urchase of beer entirely from them, it was held that they were bound to account for beer, such additional rent as they would have made, if the premises had been let without restriction, but not for the profit which they made by the sale of beer to the tenant : WJiite v. City, &c. Co., 42 Ch. Div. 237, where it was held that, under a proviso limiting the amount to be recovered, outgoings Limit of incident to the possession of .the mortgagee, e.g. moneys paid for ground an^nunt rent and insurance, were not to be taken into accuunt. recoverable • — ig) Noyes v. Pollock, 30 Ch. Div. 342 ; 32 ib. 53. outgoings. (/i) Parker v. Watkins, Job. 133. (0 Tipton Green, &c. Co. v. Tipton Moat, &c. Co., 7 Ch. D. 192 ; Wilkes V. Saunion, tb. 188. (J) Sando7i V. Hooper, 6 B. 248. 400 MORTGAGES. Person ia possession as purchaser. Wilful default as to sale- money. Liability for rents after transfer. Oonversinn of interest, &c-., into principal. Possession of part of property. Possession to be avoided. Receiver. Loss ; — management. What amounts to taking possession. the sale moneys have been thereby increased. If he also show that the property has been improved to the extent of the money laid out, he will be entitled to an account of the money so laid out. (/<;) It is essential to the creation of the liability of a mort- gagee in jiossession that the person sought to be charged as such should have known he was in possession as mort- gagee. The liability will not attach to a person who has entered under the erroneous notion that he was a purchaser. (/) A mortgagee in possession who has sold tinder his power of sale is also liable to be charged with such sale moneys as, but for his wilful default, he might have received, (m) When a mortgagee in possession voluntarily transfers his mortgage without the assent of the mortgagor, he is liable to account for the rents and profits received as well after as before the date of the transfer, (■«) but the case is otherwise if he transfer by the direction of the Court, (o) A person is not permitted, on taking a transfer of a mort- gage without the consent of the owner of the equity of redemption, to convert interest in arrear, or an amount due to him for costs, into principal, (p) A mortgagee may take possession of part only of the property comprised in the mortgage. If there are two independent tenements, he may take possession of one, and not of the other, {jf) But it would appear from the above observations that it is, in general, better for him to exercise his power of sale, or to foreclose than to enter into posses- sion at all. He can avoid the responsibility of a mortgagee in po.ssession, by the appointment of a receiver at the f7i) Slieimrd v. Jones, 21 Ch. Div. 476; Henderson v. Ashooor!, A. C. (94) 1G3 P. C. As to the riijht of a mortgagee in possession to be allowed If isses sustained in the maniigement of property let as residential chambers, see Bompas v. King, 33 Ch. Div. 279. (I) I'arkinson v. Hanhurij, L. R. 2 H. L. 1. See observations of Lord Hiitlierley, L.C., in Jegon v. Vivian, supra, p. 297. Upon the questinns what amounts to taking possession, and when a person can be said to be moi tgagee in possession, see Noyes v. PollocJc, 32 Ch. Div. 53 ; Stanley v. Grunrhj, 22 Ch. D. 478; Green v. Marsh, 2 Q. B. (92) 336; Ward v. Carttar, 1 Eq. 29 (mortgngor's solicitor paying mortgage debt, and then enteiing into receipt of the rents). (m) Mayer v. Murray, 8 Ch. D. 426, 429, ( n) Hall V. Heward, 32 Ch. Div. 430. (o) II). (p) Cottrell V. Finney, 9 Ch. 541. (7) Siitimiiis v. Shirley, 6 Ch. D. 175. niGHTS AND LIABILITIES OF MORTGAGEE. 401 expense of the estate. The receiver is treated as being for all purposes the agent of the mortgagor ; and if any loss Losses incurred should arise by the dishonesty or carelessness of the receiver, ^'^' it will fall on the mortgagor, (r) A receiver may be appointed by the mortgage deed, or by How a cotemporaneous instrument ; but it is not usual to act app°intey"\^"^ ^J *' . , ' J I teniint tor tion, he will retain the benefit thereof against the inheri- life ;— tance. It is presumed in such case, that his intention was to keep it alive, because it is manifestly for his benefit. On the other hand, when the charge is paid off by an owner in by tenant in fee simple or in tail, the presumption is the other way ; but in ' • either case, the person paying off the charge can, by expressly declaring his intention, either keep it alive or destroy it. If there is no reason for keeping it alive, then Equity will, in the absence of any declaration of intention, destroy it ; but if there is, in either of the cases above referred to, any reason for keeping it alive, such as the existence of another incumbrance, or the fact that it will otherwise be for the (o) As to the law in this respect before the passing of this Act, see Chichester v. M. of Donegall, 5 Ch. 502. As to the riglit of a director or member of a joint stock company, under Director, &c., this section, to inspect trust deeds executed to secure moneys due upon trust deeds ; — debentures issued by the company, see Burn v. London, &c., Co., W. N. debentures. (90) 209 (p) Dunstan v. Patterson, 2 Ph. 3-15. Iq) See Smithett v. Hesketh, 44 Ch. D. 166 ; Alder son v. Elgey, 26 ib. 567 : Teevan v. Smith, 20 Ch. Div. 724 (before the Act of 1882). (r) Everitt v. Automatic, &c., Co., 3 Ch. (92) 506. 406 MORTGAGES. advantage of the person who pays it oflF, Equity will not destroy it. (s) Purchase by A trustee under the bankruptcy of the mortgagor does not, b'^ ' Vu °t ^y purchasing the property from the first mortgagee upon a mortgagor. Sale under his power, extinguish the first mortgage, or make the second mortgagee the first incumbrancer ; nor does such a purchase extinguish the right of the second mortgagee to redeem, Q) Notice to pay When the principal money due on a legal mortgage is not, ^^' with the interest, paid on the. day appointed for payment, the mortgagee is entitled to six months' notice of the mort- gagor's intention to pay off the principal, or to be paid six months' prospective interest in lieu thereof; and if the amount due to him be not paid or tendered on or before the day fixed by the notice, he will be entitled to a fresh notice, or to six months' additional interest. But if a tender be made of the full amount due to any mortgagee, and be refused by him, or if through any other default of his, the amount Fund in Court, be not then paid, all interest will thenceforth cease, (u) The rule as to notice applies to a mortgage of a fund in Court ; (?;) Temporary but not to a temporary loan, e.g. an equitable mortgage of ^"'^'^- land by deposit of title deeds, whether with or without a memorandum of deposit ; (to) nor to a case where the mort- Proceedings by gagee has taken steps to compel payment of his debt ; (a;) mortgagee to Qp j^g^g proved his debt in an administration action ; (y) or ment. has entered into possession, (yy) Nor will the mortgagee of Payment out a fund in Court who has consented to an order for payment of Court ;— on a given day, be entitled to a fresh notice, merely because ^ ^■'' it has not been possible to draw up or complete the order till after that day. (z) («) Re Pride, 2 Ch. (91 ) 141 ; Thorne v. Cann, A. C. (95) 11 ; Be Harvey, 1 Ch. (96) 137, U. A. ; Liquidation, &o., Co. v. Willoughhy, A. C. (98) 321. Compare Re Jones, 2 Ch. (93) 461. (0 Bell V. Sunderland, &c., Society, 24 Ch. D. 618. (m) Greenwood v. SutcUffe, 1 Ch. (92j 9. {v) Smith V. S., 3 Ch. (91) 550. {w) Fitzgerald's Trustee v. Mellersh, 1 Ch. (92) 385. (x) Be Alcock, 23 Ch. Div. 372 ; Letts v. Hutchins, 13 Eq. 176 ; Smith V. S., supra.. iy) MaLson v. Swift, 5 Jur. 645. iyy) Bovill v. Endle, 1 Ch. (96) 648. (z) Be Moss, 31 Ch. D. 90. PRIORITY. 407 Section VI. — Prioritij of Mortgages. If a person who is the legal and equitable owner of When maxim property make an equitable mortgage by deposit in favour tvmLrc^kc. of A. ; and afterwards execute a legal mortgage of the same applicable. property in favour of B., B. having, at the date of liis mortgage, notice of A.'s equitable security, A.'s mortgage is of course payable in priority to B.'s — having regard to the maxim Qui prior est tempore potior est jure. This Shares in maxim applies in absence of some countervailing equity ''^'"P'^'y- to all mortgage securities whether legal or equitable, in- cluding securities by deposit of shares in a company. (6) But if B. advanced his money without notice, either Legal estate actual or constructive, (c) of A.'s security, then B., the legal mortgagee, would, as a rule, be entitled to be paid in priority to A. ; — according to the maxim that where the equities are equal, the law shall prevail. Here the equities of A. and B. would be equal ; for each hond fide advanced his money, reasonably supposing that he was acquiring a first mortgage, though B.'s siipposition was erroneous in point of fact. Still B., having taken the precaution to obtain the legal estate, and having an equitable title as good as that of A., his (B.'s) security would have priority over A.'s, although subsequent in point of time, (d) On this principle Loan by a trustee who has the legal estate, and takes from his cestui *''"^tf*^ ^o p , . , , . cestui que que trust, an a&signment of the equitable interest by way of trust. security for money advanced to the cestui que trust, can avail himself of the legal estate as a protection against a prior iucumbrance of which he had no notice, (e) (6) Societe, &c., v. Walker, 11 App. 20 ; Moore v. N. W. Bank, 2 Ch. (91) 599; Colonial Bank v. Cady, 15 App. 267; Williams v. Pinckney, 67 L. J., Ch. 34, C. A. As to the quasi legal interest in stock or shares Legal interest • subject to the provisions of the Companies Claiises Acts, see Nanney v. stock or shares. Morgan, 37 Oh. Div. 352; Colonial Bank v. Whinney, 11 App. 426; Barton v. North, &c., Co., 38 Ch. D. 458; Barton v. L. & N. W. Ry. Co., 24 Q. B. Div. 77 ; Poivell v. London, &c., Bank, 1 Ch. (93) 610 ; of the Companies Acts, 1862 to 1890; Society, &c., \. Walker, 11 App. 29; Moore v. N. W. Bank, 2 Ch. (91) 603. As to trusts and equitable rights Trusts, &c., of in ships, see the Merchant Sliippiug Act, 1894 (c. 60), s.s. 56 and 57 ; ships. Black V. Williams, 1 Ch. (95) 408. As to the priority of rent-charges ^ . . . created under the Limited Owners Residences Act, 1870 (c. 56), see '™' ^ Provident, etc., Assn. v. Law, &c.. Society, W. N. (97) 73. ' R '''T'^e (c) As to constructive notice, see supra, pp. 73 76. .^^' ^aTn (d) Pitcher v. Rawlins, 7 Ch. 259. ■^"' ^*''^- (e) Newman v. A^., 28 Ch. D. 674. 408 M0RTGAQE8. Legal mortgagee. Enquiry for title deeds. Fraud. Mortgagor agent to raise monev for mortgagee. Ship. Pledge of shares. Constructive notice. Escrow. The Court will not postpone a prior mortgage confening the legal estate (/) to a subsequent mortgage conferring only an equitable interest, on the ground of any mere carelessness or want of prudence on the part of the mortgagee; e.g. carelessness on the part of the directors of a joint stock company in having entrusted the mortgagor, who was their secretary, with a duplicate key of the safe in which the title deeds were kept, and thereby enabling him to create a subsequent security, (g) Where a legal mortgagee or purchaser, upon lending or paying his money, has made no- enquiry for the title deeds, he is liable to be postponed to a pre-existing equitable estate; (/t) or to a subsequent equitable owner, who has used due diligence in enquiring for the deeds, (i) The Court will postpone the prior legal estate to a subse- quent equitable estate : (1) where the owner of the legal estate has assisted in or connived at a fraud which has led to the creation of a subsequent equitable estate, without notice of the prior legal estate (of which assistance or con- nivance, the omission to use ordinary care in enquiring after or keeping title deeds, may be, and in some cases has been, held to be sufficient evidence, when such conduct cannot otherwise be explained ; (j) ) (2) where the owner of the legal estate has constituted the mortgagor or a third party his agent, with authority to raise money, and the estate thus created has, by the fraud or misconduct of the agent, (/) Such a mortgage will, for the sake of brevity, be referred to in the following pages as a legal mortgage ; while the term equitaVile mortgage will include uot only an equitable mortgage strictly so called, but also a security which is in the form of a lej^al mortgage ; but does not confer the legal estate ; — either by reason of its being only a mortgage of the equity of redemption, or by reason of tiie legal estate being, for some other reason, left outstanding. In Thompson v. Clark, 11 W. R. 23, it was held that a " legal mortga>re " of a ship must be a lirst mortgage. (g) Northern, dc, Co. v. Whipp, 26 Ch. Div. 494 ; Be Ingham, 1 Ch. (93) 352 ; Brown v. Stedman, 44 W. R. 458 (surrender of lease deposited by way of mortgage) ; Colonial Bank v. Cady, 15 App. 267 (pledge of shares in a foreign company). Compare London, &c., Co., v. B. Suffieldy 2 Ch. (97) 608, C. A. But as to the effect of constructive notice in such case, see Mumford v. Stohwasser, 18 Eq. 556 ; and see London, &c., Co. v. B. iSu^eld, and also Watkins v. Nash, 20 Eq. 262 on the question when a deed will be deemed to have been executed merely as an escrow. (h) Worthington v. Morgan, 16 Sim. 547 ; Lloyd's Banking Co. v. Jmies, 29 Ch. D. 222. (i) Clarke v. Palmer, 21 Ch. D. 124; Northern, &c., Co. v. Wldpp, 26 Ch. Div. 494. (j) Northern, etc., Co. v. Whipp, supra. PRIORITY. 409 been represented as being the first estate. (Jc) But the legal Reasonable mortgagee will not be postponed, if he has made enquiry non^L-oduc- for the deeds, and has received a reasonable excuse for their tion, &c. non delivery ; (J) nor because he has received some only of the deeds under a reasonable belief that he was receiving the whole of them, (m) Since the Judicature Acts, the High Court has juris- Right to sue diction on the application of the legal owner of title deeds for possession to order them to be delivered up by a purchaser for value ■without notice ; (n) but it will not, in general in a fore- closure action, order the delivery up of deeds executed subsequently to the plaintiff's security, and dealing only with the title to the equity of redemption, (o) The position of a mortgagee who has, upon hond fide ad- Equitable vancing his money, obtained the legal estate and possession '°*^^^* *;— ° •/ ' _ _ B ^ 1^ carelessness, of the title deeds, without notice of any prior incumbrance &c. is, as a rule, so secure, that it cannot be improved by any subsequent dealings with the deeds; and therefore in the example above given, the directors of the company could have no motive for desiring that their deeds should be taken out of the safe, and their title thereby clouded. But where the conflicting claims for priority arise between mortgagees having only equitable interests, mere carelessness or want of prudence, or due diligence, may be sufiicient to postpone an incumbrancer who is prior, to one who is subsequent in point of date, (p) In such a case the Court generally has Better Equity. to consider which of the claimants has the better equity. This, the Court will usually do quite irrespective of the maxim Qui prior est tempore potior est jure, which will only be acted on by way of last resort. An equitable mortgagee Possession of who obtains possession of the title deeds will, as a rule, ^^^^^ '*^^^*- (&) Perry-Herrick v. Attwood, 2 D. & J. 21 ; Northern, i) The doctrine is not confined to the tacking of mortgages; Doctrine not but applies in favour of all equitable owners or incum- «=''"fi"*^'^ *" ■L jy . 1 .„. .,,. mortgages, brancers tor value without notice of prior equitable interests who get in the legal estate from persons who confer the same upon them, without thereby committing any breach of trust, (n) When a mortgage is made to secure a given sum of money Further and future advances, but without any obligation to make ^^Ivances after 1 1 • • • 1 notice of any such advances, the mortgagee cannot tack to his original second security moneys due to him for further advances made after moitg;>ge. notice of a second mortgage, (o) The like principle applies Lien for debt to a mortgage or pledge of shares in a joint stock company u.^./u^'fi . • where the articles of association contain a stipulation to the Company, effect that the company shall have a lien or charge on their shares for all moneys owing to them from the holders thereof, (p) The rule is the same, although there be au agreement to make the future advances, (pp) (Tc) Brace v. D. of Marlborough, 2 P. W. 493. (Z) Taijlor v. Russell, A. C. (92) 259; Harpham v. Shaddock, 19 Ch. Div. 214 ; Mumford v. Stohwasser, 18 Eq. 562. (m) Heath v. Crealock, 10 Ch. 22. (n) Bailey v. Bar7ies, 1 Ch. (94) 25. (o) HopMnson v. Bolt, 9 H. L. C. 514 ; Union, &c., Bank v. National, (fee. Bank, 12 App. 53. (2?) Bradford, &c., Co. v. Briggs, 12 App. 29 ; Bank of Africa v. Salix- hury, &c., Co., A. C. (92) 281. As to the right of a bond fide purcliasor to p. , , ^ compel the company to throw the burden of discharging the lien upon pu■^.^,^,aser of other shares in the company held by his vendor, see Cfray v. Stone, ii,„,.„^ <,„iir.p) West V. Williams, 1 Ch. (99) 132. ^°'"^ "''^ • 2 E 2 420 MORTQAQES. Section VIII. — Marshalling of Securities. Illustration. If a person having two estates, X. and Y,, mortgage both to A., and then X. only to B., who has no notice of A.'s mortgage, B. ma}^ as against the mortgagor, and according to the doctrine of marshalling, compel the payment of the first mortgage out of Y., on which he has no charge, so far as it will extend. This may be done not only against the mortgagor, but also against those claiming under him as volunteers, e.g., if the mortgagor has died, and the two estates have descended to different heirs. But if there is a second mortgage of X. to B., and also subsequently a second mort"-age of Y. to C, the matter is more complicated. C, whether he had notice of the prior mortgage on both pro- perties to A. or not, would not be able to throw the entirety of his mortgage on the property mortgaged to B., but the Apportion- equity between B. and C. would be to have the first mort- ment of mort- apportioned (without prejudice to the rights of A.) gaoe debt ooxi \ ■>• ,,t- ,• between two between the two properties according to their respective properties. values, {q) Section IX. — Memedies. Mortgagee Before the Judicature Acts, a mortgagee could, after his may pursue principal and interest had both become payable, pursue all concurrently, bis remedies concurrently. He might have sued at law for payment of the money secured ; he might, in the case of a legal mortgage of land, have commenced an action of eject- ment in order to obtain possession ; he might have filed a bill for foreclosure ; and he might also have proceeded to exercise his power of sale, (r) If he obtained a foreclosure decree first, he took the property in lieu of his debt ; and Effect of suing, though he was not thereby precluded from suing on his iq) Barnes v. Bacster, 1 Y. & 0. Ch. 401 ; Bugden v Bignold, 2 ib. 377 ; Flint V. Howard, 2 Ch. (98) 72. As to the marshalling of secmities generally, see Re Mower, 8 Eq. 110; Heyman v. Dubois, 13 ib. 158; Trumper v. T., 14 ib. 296; 8 Ch. 870; Ex parte Salting, 25 Ch. Div. 148; Marshalling of Webb v. Smith, 30 Ch. Div. 192 ; Re Loder, 56 L. J., Ch. 230. Compare assets -K^ Jones, 2 Ch. (93) 461 (Expenditure by tenant for life and one tenant in common in permanent improvements), and as to the marshalling of Apportion- assets, see supra, pp. 206 et seq. As to the proportion in which a mort- ment of mort- gage debt is chargeable upon several distinct estates generally, see Boche- gage debt. foucauld v. Boustead, 1 Cii. (98) 550, C. A. Risbt of (*■) Kelloch's Case, 3 Ch. 776. As to the right of the transferee of a transferee of mortgage to sue for the money in his own name, see s. 25 (6) of the Tnorttrasre to Judicature Act, 1873 (c. 66) ; Durham v. Robertson, 1 Q. B. (98) 765, C. A. ; sue for debt. Western, d-c, Co. v. West, 1 Ch. (92) 271. REMEDIES. 421 covenant or otherwise for the debt, yet, if he did so, he opened the foreclosure and enabled the mortgagor to redeem. (») If he exercised his power of sale, and thereby Right to sue only partly paid himself, he could sue for the balance. (/) ^^^^^' ^^^^'"g- The mortgagee still possesses corresponding rights since those Acts have come into operation ; («) but he can sue for Right to sue, payment of his principal and interest and also for recovery ,|^; '" *''^ of possession of the property in the Chancery Division ; and Division. if he combine in one action a claim for foreclosure and for Form of JuJg- payment of the money due, he is, in general, entitled (1)"^''?*'" if the amount of debt and interest is proved, admitted, or payment of agreed to at the trial, to judgment for immediate payment of liebt and for the whole amount ; (2) if the amount is not so proved, °'^^ °^ admitted, or agreed to, to an account of what is due to him for principal and interest in respect thereof, and to judgment for payment of the whole amount immediately upon the same being certified, unless in either case, the judge in his discretion give further time (y) — a month's time from the date of the certificate being considered a reasonable time, (w') In the order for personal payment the costs will be Costs. limited to such costs only as would have been incurred if the action had been brought simply to obtain payment of the debt and interest, (a;) The account so directed by the judgment will now, how- Interest calcu- ever, as was formerly the case in the Court of Chancery, ^''*^'^ ^ *•" include interest down to the date of the Master's Certifi- certificate. cate ; and not merely to the date of the writ, as at Common Law, before the Judicature Acts ; and therefore, after the Action to commencement of an action claiming payment by the mort- \^^^^y.ll^ only. gagor personally of the amount due for piincipal and interest as well as foreclosure, a subsequent action cannot be main- tained to recover interest only, {y) (s) Lockliart v. Eardy, 9 B. 349. (0 See, however, Walker \. Jones, L. R. 1 P. C. 50, and coniparo Budge v. Bichens, ib. 8 C. P. 358. (m) National, &c., Bank v. Games, 31 Ch. Div. 582. (v) Farrer v. Lacy, &c., Co., 31 Ch. Div. 42. («;) lb. ; Faithfull v. Woodley, 43 Ch. D. 289. (a;) Farrer v. Lacy, &c., Co., s^ipra. ly) E. Poulett v. V. Hill, 1 Ch. (93) 280. Upon the question when leave will be given to sign judgment for the amount of a mortgage debt and interest, under O. 14, see Lynde v. Waithmun, 2 Q. B. (95) 180, C. A. 422 MOIiTOAOES. Power to By s. 25 of tlie Conveyancing Act, 1881 (repealing direct sale in is&iQVict. c. 86, s. 48), it was enacted that (1) "any action lor fore- ' /' v / ./ closure, &c. (c) person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption, in the alternative. (2) lu any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and notwithstanding the dissent of any other person, and notwithstanding that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit, including if it thinks fit, the deposit in Court of a reasonable sum fixed by the Court, to meet the expenses of sale and to secure performance of the terms. (3) But, in an action brought by a person interested in the right of redemp- tion and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them. (4) In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of incumbrancers. (5) This section applies to actions brought either before or after the commencement of this Act." When sale may The Court has power under this section to order a sale of be directed. mortgaged property in a foreclosure or redemption action upon an interlocutory application before the trial, or at the trial, or at any time subsequently before an order for fore- closure absolute shall have been made, (d) Discretion of ryhe Court has a discretion under this section which it is Court ; — *^' ^. ■ (c) As to the power of the Court exercising jurisdiction in bankruptcy, Sale in ^^^ ^j^^ application of the mortgagee, to direct the sale of a bankrupt's bankruptcy. ^.^^^ or leiisehold estate comprised in the mortgage, see the Bankruptcy Rules, 1886, rr. 73-77, and as to the conduct of the sale in such case, lie Jordan, 18 Q. B. D. 228. (d) Union Bank v. Ingram, 20 Ch. Div. 463. REMEDIES. 423 bound to exercise judicially ; (e) and the person applying for a sale must put tLe Court in possession of materials upon which it can give a direction for that purpose, including evidence of the value of the property. (/) The conduct of the Conduct of sale will generally be given to the party whose interest it is ^''**^" to obtain the highest price ; (^) but when, the sale is made Reserve price. at the request of the mortgagor or a puisne mortgagee, a reserve price will be fixed sufficient to cover the full amount of principal, interest, and costs, (h) The Court has power Payment into to make the order conditional on payment into Court of a '^"^^^^ *" '^"^''^'' . ^ '' . costs, &c. sum or money sufficient to meet the costs of an abortive attempt to sell ; (i) and when the security is but scanty, the order may be refused except on the terms of the person asking for it, paying into Court a sum of money sufficient to cover the possible loss which may arise by directing the sale, (y) The sale may be ordered to take place out of Sale out of Court, (7c) even when the conduct is given to the mortgagor ; po"i'* =— terms 11 . 1 ■, . 1 . ^, imposed. but the money must, m any such case, be paid into Court ; and a time must be limited within which the sale is to be effected. The order for such a sale may be made even after Sale may be the mortgagee has given notice to call in the money, and oi'^lfed after T . r. 1 p, -i/jN expiration of the time tor payment thereoi has expired, (t) notice to pay off. (e) Merchant, &c., Co. v. London, &c., Banli, 55 L. J., Ch. 479 ; Providenf, &c., Association v. Letvis, W. N. (92) 16i. (/) Smithett v. Hesheth, 44 Ch. D. 163. (g) Woolley v. Colmaii, 21 Ch. D. 169 ; Davies v. Wright, 32 Ch. D. 220; Christy v. Van Tromp, W. N. (86) 111; Norman v. Beaumont, W. N. (93) 45. (h) Woolley v. Cohnan, supra ; Brewer v. Square, 2 Ch. (92) 111. (J) Woolley V. Colman, supra ; Weston v. Davidson, W. N. (82) 28 ; Brewer v. Square, supra, but see Davies v. Wright, supra, where North, J., did not require any security because the conduct of the sale was given to the mortgagor himself, and he alone would be liable for the costs of the sale. (j) Norman v. Beaumont, W. N. (93) 45, where the sum directed to be so paid was £14,000, 10 per cent, of the amount of the highest valuation : Sadler v. Worley, 2 Ch. (94) 176. (k) Woolley v. Colman, 21 Ch. D. 169 ; Davies v. Wright, 32 Ch. D. 220 ; Cumberland, &c. Co. v. Marypoint, &c. Co., 1 Ch. (92) 92. (I) Brewer v. Square, 2 Ch. (92) 111, where the time fixed for selling Time for was three months from the date of the order. Fry, J., in one case ( Wade mortgagor to V. Wilson, 22 Ch. D. 235) ordered an account of what was due to the redeem, plaintiff to be first taken, and then that s-o much of the property should be sold as would be suflicient to satisfy the amount which should be found so due ; but it would appear that in this case a month from the date of the certificate was allowed to the mortgagor to redeem; and in a subsequent case Kay, J., gave the mortgagee three months, Green v. Biggx, 52 L. T. 680, where the property was small ; but there was no evidence to tihow that the security was scanty. 424 MO E TO AGES. How charges Section X.— Charges and Liens. charges, ** Charges may be created in various ways other than by mortgaging the property subject thereto ; e.g., portions for younger children may be charged on leal estate liy marriage settlement or by will, (to) An equitable charge on land may be created by any writing showing an intention in that behalf, so long as the property intended to be charged is Description of sufficiently designated ; (n) but if the writing is not testa- property, mentary, and be not accompanied by a deposit of title deeds, Statute of it must be signed by the party sought to be made liable thereunder in accordance with the provisions of the Statute Covenant to of Frauds, (nw) Moreover, if a person covenants or agrees charge. to charge specified real estate, or real estate which can be ascertained by existing facts and circumstances, e.g., to charge all the real estate which he shall have at a particular time, the covenant itself will operate as an actual charge on that Declaration as estate, (o) An equitable charge will also be created on the to breach of estate of a deceased person by a declai'ation of the Court that trust ~ such estate is liable to make good the loss arising from a breach of trust, (p) Expenses of Charges also arise under various statutes, e.g., the expenses PibT''H°'lth '^^ paving and other improvements are, under the Public Act, 1875, Health Acts, (q) charged upon the property in respect of s. 257. which they have been incurred ; and under the Lunacy Act, Proceedings 1890 (c. 5), s. 109, the Judge in Lunacy has power to make A^t 1890°^*^^ an order charging the costs of lunacy proceedings on the estate of a person alleged to be a lunatic, (r) 1 & 2 Vict., By the Statute, 1 & 2 Vict. c. 110, s. 13, a judgment Judcrnient a' Operated as a charge upon the debtor's real estate ; but no charge on proceedings in Equity, to enforce the charge, could be taken land. until the expiration of a year from the time of entering up Charge not to the judgment. This section considerably extended the rights ayeaf'^"'^ ^*''" of a judgment creditor over the real estate of his debtor; and it is still in force ; but it applies only to judgments and (m) As to the remedies for recovering rent charges and other annual sums cliar.>red on laud, see the Conveyancing Act, 1881 (c. 41), s. 44. (w) Criidnck V. Scottish, &c. Institution, 70 L. T. 718. (nn) Re Beetham, 18 Q. B. Div. 766. (o) Montagu v. E. of Sandwich, 32 Ch. D. 538 ; Fegge v. Neath, &c. Co., 1 Ch. (98) 183. if) Bell V. Ttirner, 2 Ch. D. 412. iq) See Act of 1875 (c. 55), s. 257. (r) Re Cathcarl, 1 Ch. (93) 466, C. A. CHARGES AND LIENS. 425 orders directing payment of money or costs ; and by s. 19 no such judgment was to affect purchasers, mortgagees, or other creditors, until a memorandum thereof should be left with the Senior Master of the Court of Common Pleas, to be registered, as by the same section provided. Formerly the only mode of eu forcing such a charge as above-mentioned was by filing, in the Court of Chancery, a Bill fur foreclosure, or for a sale, and satisfaction of the judgment debt and costs of suit out of the sale moneys ; and it was decided by Lord Eomilly, M.R., in Partridge v. Foster, (s) that a judgment creditor who had sued out a writ of elegit, without effect, was entitled, independently of this Statute, to equitable relief by the appointment of a receiver, though the year from the time of entering up judgment had not elapsed ; and that the Court would, within the year, Protection of interfere and protect the property charged from destruction. Property m ^ r r J ci meantime. By 23 & 24 Vict. c. 38, s. 1, it was enacted to the effect ^„ hall have accrued to some person capable of giving a discharge for or release of the same, or twelve years next after some payment on account of principal or interest shall have been made, or an acknowledgment (tj) in writing shall have been given, signed by the person by whom the same shall be payable or his agent, to the person entitled theieto or hie agent, or the last of such acknowledgments where there have been more than one. This section has been substituted for s. 40 of the Act of 3 & 4 Will. 4^ 3 & 4 Will. 4, c. 27. The personal remedy against the ^' ' ^' mortgagor • under his covenant, («) or under a bond by way reined v aeainst of collateral securit}', (a) is subject to the like period of mortgagor, limitation of twelve years. But this observation does Surety, not apply to an action against a surety for the mortgagor under his covenant or bond. The period of limitation in such case is by the Statute 3 & 4 Will. 4, c. 42, s. 3, twenty years from the time when the cause of action arose. (&) The word "judgment" in s. 8 of the Act of 1874, includes "Judgment." judgments generally, and is not restricted to judgments which operate as charges upon land, (hh) (w) Warner v. Jacob. 20 Ch. D. 220 ; Doohy v. Watson, 39 Ch. D. 178 ; but see CharUs v. Jones, 35 Ch. D. 544 ; Be Bell, 34 Ch. D. 462 ; Burdick V. Garrick, 5 Ch. 233. (y) See Lawton v. Ford, 2 Eq. 97 ; McGuffie v. Burleigh, 78 L. T. 261. As to the time within wliich a claim for interest on debenture stork Interest on subject to the Companies Clauses Act, 1863, may be made, see He Com- debenture wall &c. Co., 2 Ch. (97) 74. stock. (z) Sutton V. S., 22 Ch. Div. 511. (a) Fearnside v. Flint, 22 Ch. D 579. (6) Re Frisby, 43 Ch. Div. 117; Ee Powers, 30 ib. 291. Upon the question when the Statute begins to run in such case, see Debt payable Wolmershausen v. GuUick, 2 Ch. (93) 514 : Robinson v. nark-in, 2 Ch. on demand. (96) 426; Kibble v. Fairthorne, 1 Cb. (95) 219 ; where the money secured is payable on demand. Re Brown, 2 Ch. (93) 300 ; Re Tidd, 3 Ch. (93) 154. See also Barker's Claim, 3 Cb. (94) 290, where the borrower agreed, upon securities being realised and proving deficient, to make up the deficiency. (W) Jay V. Johngtone, 1 Q, B. (93) 189, C. A. 2 F 434 MO n TO AGES. By whom ^^ A " payment of the principal money or interest " under must be made *^® section must, in order to prevent the claim being barred, Payment bv ^^^ niade to a person entitled to receive the same by a person mortgagor; liable to pay ; and therefore a payment by the mortgagor by a stranger, will save the Statute as against a surety ; (c) but a payment by a stranger would be of no avail, (c?) Payment by Paj^ient of interest by a tenant for life under a settlement made by the owner of the equity of redemption will prevent the Statute of Limitations from being successfully pleaded to an action to realise a moitgage security ; (e) or upon the covenant for payment of the money secured, (/) if the payments have been made to the right person. Person to The Statute will not run where the person entitled to receive same as • . i • . . • i -i i j . / \ person to pay ^Gceive the interest is also the person bound to pay. {g) Action to Th.Q period within which a mortgagee is entitled to recover recover possession of land comprised in the mortgage deed possession. j^^ ^,^ ^^^ j^-^^^ ^g.^^^ ^^ ^^^ ^^^ ^ y-^^_ ^_ 28, and^the Eeal c 57 s-l'and "'^^^P^^^y Limitation Act, 1874 (c. 67), as. 1 (which cor- 1 Vict. c. 28. responds to s. 2 of 3 & 4 Will, 4, c, 27) and 9, twelve years from the time when the mortgagee's right first accrued, or as the case may be, from the time of the last payment on Future account of principal or interest ; and ss. 2-5 of the Act of estates; 1874 contain special provisions for the cases of, inter alia, persons under i i • t t i •!• disability. luture estates and claimants under disability. Eeversionary Where the property comprised in the mortgage is re- property, versionary, the Statute only runs from the time when it falls into possession, (h) Foreclosure A foreclosure action is an action for the recovery of land ; action an action to (c) Be Frishy, supra ; Be Tucker, 3 Ch. (94) 429. recover land, (d) Be Frishy, eiipra ; Newbould v. Smith, '63 Ch. Div. 127, 14 App. 42:^; Be Powers, supra; Pears v. Laing, 12 Eq. 41. See also Thorue v. Heard, A. C. (95) 495 ; Barries v. Glenion, 2 Q. B. (98) 22:-]. Evidence of ^g ^^ ^j^g evidence of payment by a deceased peraon, see Newbould v. payment by a g^nj^^ g^p^^. deceased ^^^ Barclay v. Owen, 60 L. T. 220 ; Be England, 2 Ch. (95) 820 ; Be person. ^^u^^^ y^ j^ (gg) yg ^^^ 3 & 4 Will. 4, (/) Bibbs V. Walker, 2 Ch. (93) 429. See 3 & 4 Will. 4, c. 42, s. 5. 0. 42, s. 5. (g) Topham v. Booth, 35 Ch. D. 607. (/i) Hugill v. Wilkinson, 38 Ch. D. 480 ; but see Be Owen, 3 Ch. (94) Acts of owner- 225 (legacy charged on a reversionary interest in land). Upon the ship to prevent question what acts of ownership will be sufficient to prevent adverse adverse pOfsession, see Marshall v. Taylor, 1 Ch. i^95) 641. As to the right of a possession. reversioner to recover real estate in the po.-8e>Bion of a former yearly tenant (Act of i833. c. 27, ss. 1-3, 20; Act of 1874, ss. 1, 2), see Be E. oj Devon, 2 Ch. (96) 562. Father bailiff As to the case of a father in possession of land as bailiflf of his infant for infant child, see Be Hobbs, 36 Cb. D. 553. child. STATUTES OF LIMITATION. 435 and is therefore not within s. 8 of the Eeal Property and within Limitation Act, 1874, but is within s. 1, and consequently ^ ^>ct. c. 28. within the enactment of 1 Vict. c. 28. (i) A payment, to come within 1 Vict. c. 28, must be a Payment must payment of principal or interest : and must be made by the ^l * paymentj J. -, 1 --i-r^of principal, mortgagor, or some person bound to pay principal or interest &c on his behalf. (/) A payment of rent made by a tenant of payment of the mortgaged property to the mortgagee, in consequence of '"^'''f' ""* a notice by the mortgagee requiring the rent to be paid to him, is not such a payment, (k) An action brought by a mortgagee to recover possession of -A^ction for IT 'J- 11 i. -iij-ii jv possession after land comprised m a legal mortgage, will not be barred by foreclosure the above-mentioned statutory provisions, if it be brought within twelve years from the date of an order for foreclosure absolute, although more thaa twelve 3'ears have elapsed since the legal estate in the land was conveyed to the mortgagee, and since the last payment was made on account of principal or interest secured by the mortgage. (Z) Where a person purports to devise or grant by deed land Estoppel : — to which he has no title, to a person for life, with remainders '^^^'•'^^ ^7 over, and the tenant for life enters under the will or deed, and acquires a good title against the true owner, such tenant for life, and persons claiming under him are estopped, as against the remaindermen, from disputing the validity of the will or deed. (11) The Statute extinguishes the right as well as the remedy Statute extin- as to real estate ; and therefore a payment or acknowledg- S"'**^^® *'*!«• ment will not restore a title which has been extinguished by the operation of the Statute, (m) By s. 42 of the Act of 3 & 4 Will. 4, c. 27, no arrears of 3 & 4 Will. 4, interest on "money charged upon or payable out of any land ^- 27, s. 42. or rent, is recoverable by any distress, action, or suit, but interest^ ^^^^^ ,-,, ■.^. ,.^r, -r. ^ -rr , rccovevable. (i) Harloch v. Ashherry, 19 Ch. Div. 539. Re Owen, supra. Upon the ^^ question who is a"persou claiming under a mortgage," see Thornton v. /.^^f"" France, 2 Q. B. (97) US, C. A. claiming under 0') Harlock v. Ashherry, supra; Lewin v. Wilson, 11 App. 639, P. C. * mortgage. (k) Harlock v. Ashherry, siipra. (I) Pugh V. Eeath, 1 App. 235. ill) Dal ton V. Fitzgerald, 2 Ch. (97) 86, C. A. (m) 3 & 4 Will. 4, c. 27, s. 34 ; Re Alison, 11 Ch. Div. 295 ; Sanders v. S., 19 Ch. Div. 379; Re Hobbs, 36 Ch D. 557; Re Sands, 22 Cli. D. 614 ; Bunting v. Sargent, 13 Ch. D. 330. Upon the question when the Statute Equitable begins to run where a person entitled to a leuse for a long ttrin at a lessee at pepperciirn or nominal rent continues in possession without any lease nominal rent, having been granted, see Warren v. Murray, 2 Q. B (94) 648. 2 K 2 486 MORTGAQES. Prior incum- brancer in possession, &c. Retainer of more than six years' interest, " Action or suit." Redemption action, &c. Mortgages of personal property. Reversionary property. Aclcnowledg- ment by one trustee, &c. within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto or his agent, signed by the person by whom the same was payable or his agent. This section contains a proviso saving the right to interest of puisne incumbrancers, where a prior incumbrancer is in possession, or receipt of the rents and profits. The section only applies where the mortgagee takes active steps to recover the moneys due to him by distress, action, or suit.- It does not afi'ect his right, upon selling under his power, to retain the whole amount due to him for interest, even though for a period exceeding six years ; (n) and if the whole of the sale money should be paid into Court, to the credit of an action for administration of the mortgagor's estate, the presentation of a petition for payment of the amount due to the mortgagee or his repre- sentatives, will not be deemed an action or suit within the section, (o) The section does not apply to a redemption action by the mortgagor, or to any other case in which the mortgagee is a defendant ; nor does it apply to mortgages of or charges on personal estate ; (p) but it is doubtful whether a mortgagee of a reversitmary interest in land can by action recover more than six years' arrears. (5) It has recently been held hy Stirling, J., that an acknow- ledgment by one of two executors and trustees, against the wishes of the other, is not suflScient to take the case out of the Statute, (^qq) Section XII. — Parties and special points of Practice. General rule. As a general rule, all persons interested in the equity of redemption miast be made parties to an action for foreclosure or redemption ; but a puisne mortgagee is entitled to obtain (n) Edmunds v. Waugh, 1 Eq. 418 (queationing Mason v. JBroadbent, 33 B. 296); Re Marshfield, 34 Ch. D. 721. (0) Edmunds v. Waugh, supra; lie Marshfield, supra; but see Me Slater, 11 Ch. D 227 ; Me Stead, 2 Ch. D. 713. (p) Clarkson v. HendersG7i, I'i Ch. D. 348; Mellersh v. Brown, 45 Ch. D. 229. Upon the question, " What is money charged upon or payable out of knd?" see Bowyer v. Woodman. 3 Eq. 313 ; Me Ste-phens, 43 Ch. D. 39. (5) Smith V. Hill, 9 Ch. D. 143. I'pon the qui stimi when the right to rent, interest, or other income will be afftcted by ladies, see Thomson y. Eastwood, 2 App. 216 ; Hickman v. Upstdl, 4 Ch. Div. 144. {qq) Asthury v. A.. 2 Ch. (9S) 111. •' Money charged on land," &c. Interest, laches, &c. PARTIES. 437 & foreclosure judgment against the mortgagor, and all in- cumbrancers sul sequent to himself without making persons prior to himself parties. He may, however, make them parties to an action claiming redemption against them, and foreclosure against the mortgagor and subsequent incum- brancers ; but he is not bound so to do. Even a first mort- gagee cannot obtain a foreclosure judgment against the puisne mortgagees without making the mortgagor or the persons claiming under him by purchase or otherwise a party or parties, (r) If the mortgagor be dead, his heir or Deceased devisee, in the case of real estate, and his personal repre- "i"'tgagor. sentative in the case of personal estate, may be plaintiff in an action for redemption and must be a defendant to an action for foreclosure, (s) When the equity of redemption Equity of is settled in strict settlement, all persons interested under '"edeniption the settlement down to and including the first tenant in tail of full age, must be parties to a foreclosure action. (<) A judgment creditor who has not issued execution is not a Judgmpnt necessary party either to a redemption or a foreclosure creditor, action. («) After the transfer of a mortgage, the original mortgagee Transfpree. is not a necessary party ; and if there have been several transfers, it will be sufiicient that the last transferee be made a party, (v) A surety is a necessary party to a foreclosure action if he Surely. has made any payment on account of principal or interest, (iv) A person who has mortgaged some estate of his own, by way of collateral security, is also a necessary party, (x) (r) Runt V. Worsfold, 2 Ch. (96) 228. Aa to the right of a personal Fersoual representative to appropriate a mortgage debt towards the share to which rejjreseutative; he is beneficially entitled in the estate of his testator or intestate, and — appropria- thereby make himself equitable as well as legal owner of the security, tion of see Barclay v. Owen, W. N. (89) 16. mortgage debt. (s) In Lancaster, &c. Co. v. Cooper, 9 Ch. D. 594, the Court, on motion Defendant by the plaintiflfs in a foreclosure action, and on its being discovered tliat erroneously the defendant, an infant, was not, as had been supposed, the heir of the supposed to be mortgagor, made an order setting aside the judgment and dismisbing the mortgagor's action. heir. (t) As to the rights of the tenant for life and remaindermen inter se -pg^^jj^. f^j. jjfg upon tlie former redeeming, see Wicks v. Scrivens, 1 J. & H. 220. .„ , ,.»r„oinn to represent the deceased mortsragor in an action for °^ deceased i. , \ o o mortgagors 101 ecL .sure. (/) estate ;— 0. 16, Actions for the redemption or foreclosure of mortgages '"• ^''• are, by s. 34 of the Judicature Act, 1873, specially assigned to Actions the Chancery D vision, (/a) An action for foreclosure of a chancery mortgage of real estate is, as has already been stated, an Division ; action for the recovery of land ; (/6) but where it is sought ^^^^^ cX^xm for to obtain a judgment or order for foreclosure and possession, j^j^^g ^f ' it is not necessary to obtain the previous leave of the Court, Court not in order to combine claims for both these remedies in one "^^■*^^*''^^J- action, (jj) By O. 55, r. 5a, a mortgagee or mortgagor, 0. 55, r. 5a ; — whether legal or eciuitable, or other person entitled to or ^^"'S'"''*'^'"^ ^ ^. ' ' summons. having property subject to a legal or equitable charge, or having the right to foreclose or redeem any mortgage, may obtain an order, on originating summons, for sale, fore- closure, delivery of possession, redemption, or reconveyance. This rule was intended to enable parties to have simple Rule not matters settled by the Court, without the expense of com- ■'^Pl^^":*'''^ *? • 1 • • 1 1 1 . -j^ 11 questions of mencmg an action by writ, in the usual way ; but it would priority, &c. not enable the Court to determine such serious questions as those of contested claims for priority of different in- cumbiancers. (Ji) The County Court has also jurisdiction under the County County Court Courts Act, 1888 (c. 43) s. 67, to entertain an action for Junsdiction. foreclosure or redemption, or for enforcing any charge or lien, where the amount charged or secured does not exceed £500. The proceedings in actions for foreclosure or redemption. Proceedings up and for the enforcing of charges and liens are, as a rule, the *° *^'^'- (d) Cholmondeley \. Clinton, 2 J. & W. 134 ; Bolton v. Salmon, 2 Cli. (91) 52. (e) Bolton v. Salmon, supra. If) Aylwnrd v. Lewis, 2 Ch. (91) 81 ; but see Scott v. Streatham, d'C. Co., W. N. (91) 153. (/a) See supra, p. 3. (fb) Heath v. Pvqh, 6 Q. B. Div. 345, 7 App. 235 ; Wood v. Wheater, 22 Ch. D. 281 ; Withall v. Nixon, 28 Ch. D. 41c!. (o) See O. 18, r. 2 (Dec. 1885). (ft) Be Giles, 43 Ch. Div. 398. 440 MORTOAQES. Companies Act, 1862, When puisne mortgagee defendaut should dis- claim. Mode of disclaiming. Effect of disclaimer. Liability. Inquiry as to priorities ; — O. 33, r. 2. l''orm of foreclosure judgment ; — legal mortgage. Power to stay prosecution of accounts. same up to and including the trial as those applicable to actions in general. It should however, be here mentioned, that when a mortgagee de.sires to commence an action to foreclose, or to realise his security, against a company in the course of compulsory liquidation, he must first obtain the leave of the Court, under s. 87 of the Companies Act, 1862 (c. 89). He is entitled to have such leave granted, unless the liquidator is able and willing to give him, under the winding up, all the relief to which he is entitled in the action. (Jid) The same principle applies to an application for leave to continue an action commenced before the winding up order. It should also be mentioned that when the property comprised in a mortgage is so heavily charged, that it is not worth while for a puisne mortgagee, defendant to a foreclosure action, to redeem, the proper course for him to adopt is to write to the plaintiff's solicitor as soon an* possible after being served with the writ or summons, offering to submit to the action being dismissed or discontinued against him without costs, and to disclaim at the plaiutiif's costs, (i) The disclaimer may be either by deed, or by the defence in the action. If a devisee of a mortgaged estate under the old law dis- claimed Mfter the commencement of the suit, his disclaimer operated ah initio — i.e., assuming he had done no act incon- sistent with the exercise of his right to disclaim, (j) It is only a right or interest which can be disclaimed. A person cannot disclaim a liability, (k) The Court has no power, under 0. 33, r. 2, to direct, before the trial, an inquiry as to the priority of incum- brancers in a foreclosure or redemption action, (Z) The common form of judgment in a foreclosure action, when the mortgagor is in possession under a legal mortgage, Qia) Re Joshua Stuhbs, 1 Ch. (91) 480, C. A. ; British, &c., Co. v. South Amtrican, &r. Co., 1 Cli. (94) 108. As to the circumstances under which leav will be given to a mortgaiiee to distrain for interest in arrear, see Re Higgimhaw, rfc, Co., 2 Ch. (96) 544, C. A, (i) 'Day v. Gudgeon, 2 Ch. D. 212 ; Greene v. Foster, 22 ib. 566. (/) Bellamy v. Brichenden, 4 K. & J. 672; but see Furher v. F, 30 B. 523. (A) Glamnglon v. Thwaites, 2 Rnss. 462. (/) Garnhn'm v. Skipper. 29 Ch. Div. 566 As to the power of the Court to stay the iirosei-ution against a company of expensive accounts and inquiries directed by a foreclosure judgment, unless security for costs be given, see Exchange, &c., Warehouses v. Association of Land Financiers, 34 Ch. D. 195. PRACTICE. 441 directs an account to be taken of what is due to the plaintiff under his mortgaoje, and for his costs ; and that, upon the defendant paying to the plaintiff the amount certified to be due to him, within six months after the Master's Certificate at the time and place thereby appointed, the plaintiff do reconvey the property comprised in the mortgage, and deliver up upon oath all deeds and writings in his custody or power relating thereto, to the defendant, or to whom he shall appoint; but that in default of such payment, the defendant is from thenceforth to stand absolutely debarred and foreclosed of and from all equity of redemption of in and to the mortgaged property, (m) The form will be Equitable somewhat different when the mortgage is equitable, or mortgage. where there are several successive mortgages. In the former case the judgment usually directs not only that the mortgagor be foreclosed in default of payment; but also that he execute an absolute conveyance of the property to the plaintiff, (n) The judgment does not, as a rule, in either case reserve further consideration. The form is porm when a different when a sale is directed. In that case, the direction, sale is directed. in case of default of payment of the amount certified to be due to the plaintiff, is that the property be sold, and that the proceeds be paid into Court to the credit of the action, and be applied in payment of what shall be certified to be due to the plaintiff, with subsequent interest and costs; and, if necessary, that the judgment is to be without prejudice to the right of the plaintiff to enforce payment of the balance due to him, in the event of the sale moneys proving insuflScient. (no) A.ny special circumstance or fact affecting the amount due Special from the mortgagor or the mortgagee in a foreclosure action circumstance. \ — such as a valuation of the security in bankruptcy — should be pleaded, or, at all events, brought to the attention of the Court, before the usual foreclosure judgment is made, in order that a direction may, if necessary, be given to the Master, to have regard, in taking the account, to such special Cm) Seton, 1575. See ih. for like judgment, with direction for payment by the defendant personally of the amount due, and for giving cridil, in the accounts, for the amount so directed to be paid. See p. 1593 for Form whon common form of redemption judgment. As to the form when a receiver receiver is is appointed, see Simmons v. Blandy, 1 Cli. (97) 19. aiinointed («) Lees V. Fisher, 22 Ch. Div. 284. Ina) Seton, 1587. 442 MORTGAGES. circumstance or fact ; if this be not done at tlie trial, no such question can, as a rule, be raised on taking the account, (nfe) Form of The common form of judgment in a redemptiim action, redemption after directino; an account to be taken of what is due to the judgment. t i . tit i. mortgagee aud ordering a reconveyance and delivery up oi deeds, on payment of the amount found due, as in the case of a foreclosure judgment, directs that in default of the plaintiff paying within the time appointed, what shall be certified to be due from him, the action do stand dismissed with costs ; aud this direction will be given even where the plaintiff is a second mortgagee claiming redemption against the first mortgagee, and foreclosure against the mortgagor, (o) Annual rests. If a judgment for redemption be pronounced against a mortgagee in possession, directing the usual account without annual rests, an order cannot in general be made afterwards, directing the same to be taken ivith annual rests, (p) When more It was formerly the practice in cases where a , first than one morto;a2;ee commenced an action or suit for foreclosure redemption of' against the mortgagor and his subsequent incumbrancers, successive to fix successive periods within which the defendants might mortgages. redeem according to their respective priorities. This course will still be followed if the puisne mortgagees appear at the hearing, and show a case entitling them to have the judgment so framed ; but the mortgagor has no right to claim more than the one usual pi riod of six months. (5) If the puisne mortgagees fail to show such a case as above mentioned, then only one pei iod (generally six months from the date of the Master's Certificate) will be fixed. The tendency of the Court is now in all cases to fix only one period in absence of good reason to the contrary ; and so prevent the expense and delay which formerly arose in such cases, (r) {nh) Sanguinetti v. Stucl-ey's, d'c, Co., 1 Ch. (95) 176. (o) Halleft V. Furze, 31 Ch. D. 312. (p) Nelson v. Booth, 3 D. & J. 119. (q) Piatt V. Mendel, 27 Ch. D. 246. In a redemption action by a second Jlode of taking mgj.tgagee against the first mortgagee, the account to be taken at the accounts by instance of the second mortgagee must be taken in all respects as though second against j^ ^g,.,. being taken at the instance of the mortgiigor hiniteelf; and the first mort- second mortgagee mny assert such equity as tlie mcjrtgagor himself misiht S^g^®- have liad to exclude any particular item from the account: Mainland v. Upjohn, 41 Ch. U. 126 ; Tundin v. Luce, 43 Ch. Div. 191. Order of As to the order in which successive incumbrancers are entitled to redeem redemption generally, see Mutual, dr.. Society v. Langley, 32 Ch. Div. 460 ; Flint v. Howard, 2 Ch. (93) 54, C A. (r) Smithett v. Hesketh, 44 Ch. D. 164. PSACTICK 443 When an infant is a defendant to a foreclosure action, the Day for infiint usual form of judgment whether the mortgage is legal, or *^° *''"^^ cause, equitable jiives him a day to show cause against the saiiie on coming of age ; but the Court may pronounce judgment for Immediate immediate foreclosure against the infant, with tlie concur- '"''•'.^'''SV''^ . '^ , ^ against intant. rence of his guardian, and upon being satisfied by proper evidence, that the property is o!" less value than the amount due on the mortgage, and tliat it will be for the infani's benefit, (s) The usual form of foreclosure judgment against an infant having the legal estate directs him to convey on his attaining majoiity. (<) The practice in taking the accounts before the Master Practice in is substantially the same as in an action for adininistra- ^•'''^'"S '""'"*" , mi 1 • i-if 1 • 1 • PI g-'ge accounts. tion. (u) ihe piiiintiti or party having tlie carriage of the „ . , ^ ^ , ,^. T ^ 1 Summons to judgment should, under (J. 55, r. 33, take out a summons ni-oceed. to proceed ; and upon the return thereof, the Master will Accounts to be generally fix a time for tiie mortgagee to bring in and '^i'«ug'i*^ '"• verify by affidavit an account of what is due to him for principal, interest and costs; — and when he has been in possession, and the judgment so directs, an account of rents and profits received by him, or which but for his wilful default he might have received, (v) The account or Proceedings accounts brought in will be dealt with in the usual way; thereon. and when completed, the Master will make his Certificate, Master's finding the amount due. Certificate. If the owner of the equity of redemption desires to pay Payment off the amount certified to be due to the mortgagee at an ^^efore ap- earlier peiiod than that fixed b}" the Master's Certificate, he can only do so upon payment of the entire amount which will be due on that day, and cannot, on payment before that day, escape paying the full amount of interest which would be payable in the usual course, (ic) A foreclosure is not complete until the order absolute has Foreclosure been made, (a;) This is obtained, in the case of a legal ^°^ complete until order (s) Wolverhampton, dc, Co. v. George, 24 Ch. D. 707. (0 Mellor V. Porter, 25 Ch. D. 15« ; Gray v. Bell, 30 W. K. 606 ; but see Foster v. Parker, 8 Cb. D. 147. (u) But the judgment will not, in general, require to be served on persons not before tbn Court. (v) An to the- ri.u'ht of a mortgagor to compel the mortgngee to Liability of furnish piirticulars of moneys received by him, see Kemp v. Goldberg, mortgagee to 36 Ch. D. 505. furnish par- (w) Hill V. Roiclands, 2 Ch. (97) 361, C. A. ticulars of {z) Frees v. Coke, 6 Ch. 645 ; Marshall v. Shrewsbury, 10 Ch. 250. money received by him. 444 MORTQAOES. Mode of obtaining. Absolute con- veyance when mortgage equitable. Refusal of mortgagor to execute. Vesting order, Execution of deed under Judicature Act, 1884, " s. 14. Dismissal of redemption action. Equitable mortgage. Final order. Enlarging time to redeem. Terms of granting — costs. mortgage, by order of course, to be obtained by Counsel banding in a brief for tbat purpose duly indorsed to tbe Eegistrar, in Court, or it may be obtained by ex parte summons, in Chambers. (?/) An order for foreclosure absolute may be obtained in like manner, when the legal estate is in the mortgagor, as in the case of an equitable mortgage by deposit of title deeds ; (2) but the order would not vest the legal estate in the mortgagee ; and it is not, as a rule, worth while having such an order drawn up. The .foreclosure is, in such case, more properly made absolute, by simply obtaining from the mortgagor an absolute conveyance of the property. If the mortgagor neglect or refuse to execute the same, he can, under peril of the usual process of attachment, be compelled so to do, after the draft thereof has been settled ; or the mortgagee can obtain a vesting order under the Trustee Act, 1893, having the like effect. The course which is now usually followed in such cases, is for the mortgagee to obtain an order from the Judge under s. 14 of the Judicature Act, 1884 (c. 61), nominating the Master to execute the conveyance for the mortgagor. When an action for redemption is dismissed at the bearing, or for any other reason than for want of pro- secution, (c) the dismissal operates as a judgment for fore- closure against the plaintiff; (d?) but this rule does not apply to a mere equitable mortgage (e). When the plaintiff in an action to redeem a legal mortgage fails to pay the amount certified to be due from him at the time appointed for that purpose, a final order to dismiss the action should be obtained in the same way as in the case of an order for foreclosure absolute in a foreclosure action. The Court will, upon a proper case being made out, e.g, when the security is ample, and there is a reasonable prospect of the mortgagor being able to discharge the debt, enlarge the time for redeeming. This however is by no means a (y) As to the form of affidavit, see Daniell's Forms, No. 1539 (mort- gagee attending in person), 1540 (by attorney), substituting for the Rolls Chapel, room 138 of the Royal Courts of Justice ; National, &c., Society V. Raper, 1 Ch. (92) 54 ; King v. Hough, W. N. (95) 60. (2) Lees V. Fisher, 22 Ch. Div. 284. (c) Hansard v. Hardy, 18 Ves. 460. (d) Marshall v. Shrewsbury, 10 Ch. 254 ; Biggs v. Hoddinott, 2 Ch. (98) 312, C.A. (c) Marshall v. Shrewsbury, supra. COSTS. 445 matter of course ; and the Court will generally require, as a condition to making the order, that the mortgagor at once pay the whole or a substantial portion of the interest in arrear on the mortgage debt, and the costs. (/) Such an indulgence is not, in general, granted to the plaintiff in a } ?^'^°*^<^ "* ° ' o ' o r redemption redemption action, {g) action. Where the mortgagee or a receiver appointed in the action Receipt of has received rents of mortgaged property between the date I'ents after of the certificate under a foreclosure judgment, and the day fixed for redemption, the mortgagee is not entitled to the rents so received, except on the terms of his bringing them into account as between mortgagee and mortgagor; and a fresh date must, in such case, be fixed for redemption, (h) But in cases where the rents have been received after that day, and before the affidavit of default in payment has been sworn, an order for final foreclosure will, nevertheless, be made without any further account, (i) Section XIII. — Costs. Under the contract which arises out of the relation between Costs payable a mortgagor and his mortgagee, a mortgagor desiring to ^ mortgagor ^ ^ . . , , 1 on redeeming. redeem the pioperty is, m general, bound to pay to the mortgagee in addition to the principal debt, and the interest thereon : (1) all costs, charges and expenses properly incurred by the mortgagee in relation to the mortgage debt or the mortgage security ; (2) the costs of litigation properly under- taken by the mortgagee in reference to the mortgage debt (including the costs of an action to recover the mortgage debt and interest from, and of any correspondence with any surety therefor), or the security, including, in the case of an (/) Collinson v. Jeffery, 1 Ch. (96) 644 ; Forrest v. Shore, 32 W. R. 3o6, ami cases there cited. In this latter case, nearly half (amounting to £5000) of the arrears of interest and the costs only of the application, were ordered to be at once paid. ((j) Novosielski v. Wakefield, 17 Ves. 417; Collinson v. Jeffery, 1 Ch. (96) 644. Qi) Jenner-Fust v. Needham, 32 Ch. Div. 582 ; Ellenor y. Ugle, W. N. (95) 161 ; Simmons v. Blandy, 1 Ch. (97 ) 19. (i) National, A-c, Society v. Raper, 1 Ch (92) 54; Coleman y. Llewellin, 34 Ch. Div. 143; Cheston v. Wells, 2 Ch. (93) 151; but see lioss Com- missioners V. Usborne, W. N. (90) 92. As to the discretion of tlie Court to Re-opening open the foreclosure, see Beaton v. Boulton, W. N. (91) 30 ; FUnt v. foreclosure Howard, 2 Ch. (93) 60, C. A. ; Campbell v. Holyland, 7 Ch. D. 166. See Assignment the last case as to adding parties to an action for foreclosure or redemp- pendente lite. tion after an assignment pendente lite. 446 MORTGAGES. equitable mortgage, the costs of preparing and completing a legal mortgage agreed to be given by memorandum of deposit, and any correspondence with the mortgagor in relation thereto, as well as of inspection of the title deeds necessary for that purpose ; (3) the mortgagee's costs of any foreclosure or redemption action which may have been commenced, (j) The costs are taxed as between t^olicitor and client. When a mortgagee commences an action to redeem prior Costs of and to foreclose subsequent incumbrancers, his costs are puisne- added to his debt, and they have, as a rule, no priority over mortgagee. . /7 i n • . . the prior charges ; (A;) but when a p?as?ie mortgagee institutes Costs incurred proceedings to realise and distribute a fund, which but for such for the beneht g^ertions, would have been unavailable for the purpose of of all parties. , ' _ . paying the incumbrances, and which proceedings would have to be taken in any event, then if the other incumbrancers, whether prior or subsequent, make use thereof for their own advantage, the plaintiff's costs oui;ht to be paid first. (I) When the plaintiff in an action for successive foreclosures Plaintiff both and redemptions is both first and last mortgagee, he must pay the costs of the intervening incumbrancers, if he fail to redeem. (?)i) When the interest on a mortgage debt is regularly paid, Transfer. and the mortgagor has never been called on to discharge the principal, the costs of a transfer of the security made without any communication with the mortgagor are not properly chargeable against him. ( n) Two mort- When a mortgagee brings an action to foreclose two gages. Costs of (j) Re Wallis, 25 Q. B. Div. 181 ; National, d'c. Bank v. Games, iuvestigatino' 31 Cli. Div. 5h2 (where it was heli) that an investigation of the title waa title. not necessary for this purpose); Field v. Uopldns, 44 Ch. Div. 524; hut as to the costs of an action to recover arrears of interest, see Poulett v. Hill, 1 Ch. (93) 277. (70 Wright v. Kirhy, 23 B. 463 ; Johnstone v. Cox, 19 Ch. Div. 19. Insufficient (I) Wriqht v. Kirhy, 23 B. 467; Batten v. Dartmouth Commissioners, estate ;— 45 Ch. D'. 618 ; Carrick v. Wigan, &c., Co., W. N. (93) 98 ; Latliom v. priority. Greenwich, &c., Co., 72 L. T. 790 (costs of realisation) ; Batten v. Wedg^ wood, &c., Co., 28 Ch. D. 317. See this last case al.-o as to ihe priority of different sets of costs, when the estate is insufficient to pay all. (to) 3Intunl, rf-c. Society v. Langley, 32 Ch. Div. 475. Copies of (ti) Re Rudclife, 22 B. 201. A mortgagee is not entitled, upon being doLumeuts. paid off to keep any copy of the reconveyance or deed of transfer, or of any other documents relating to his security (Be Wade, 17 Ch. D. 348); Copy of draft nor is a solicitor acting for several co-moi tgagees entitled to charge the reconveyance, mortgagor for more than one copy of the draft of any such reconveyance &c. or deed of transfer (ib.). first and last mortgagee. COSTS. 447 mortgages not liable to be consolidated, of two distinct estates, the costs of the action will not be charged against each estate, but must be apportioned rateably between the two estates, (o) The plaintiff in a foreclosure action is, as a general rule, Special case for only entitled to an account of principal and interest due to him on his mortgage, and of the costs of the action. To Form of entitle him to an account of any other costs he must make gog^tg"' out a special case, and the Court will then, as a rule, direct an enquiry " whether anything and what is due to the plaintitf for any and what costs, charges, and expenses properly incurred by him in respect of his mortgage security, not being costs of the action." (p) But where the plaintiff Wiis the transferee of a mortgage, on which interest was overdue at the date of the transfer, and the mortgagor was a bankrupt:, the plaintiff was held to be entitled to an account of costs generally, (q) The owner of the equity of redemption is not, as a rule, Whenmort- li able to pay personally the costs of an action for foreclosure ; ^^?°^'' ,j*^" but payment thereof will, in general, as in the case of any liable for costs, other charges and expenses properly incurred by the mort- gagee, only be made one of the conditions on which such owner shall be entitled to redeem, (r) The case is otherwise as to the costs of an action for redemption ; for, as stated above, the usual form of judgment in that case directs the action to be dismissed with costs in default of the plaintiff redeeming. A mortgagee may be refused his costs on the ground Misconrluct of of misconduct ; or if a strong case be made against him, he ™°*"*g^S*^*j may be ordered to pay the costs of the owner of the equity ' of redemption (t) — e.g. if he set up an absolute title to the pioperty in himself, or dispute the right of such owner to redeem the whole or part of the property, (m) He will not (o) I)e Caux v. Skipper, 31 Ch. Div. 635. Compare Flint v. Howard, 2 Ch. (93) 5i. (p) Eees V. Metropolitan Board of Works, 14 Ch. D. .374. (g) Bolinghroke v. Hinde. 25 Ch. D. 795 ; Ex jmrte Fewiyigs, 25 Ch. Div. Interest on 339. On the question when a mortgagee is entitled to interest on his costs, costs, see Eardley v. Knight, 41 Ch. D. 5:->7. (r) In Barclay v. Owtn, 60 L. T. 220, defendants who had nnsuccess- Statute of fully pleaded thu Statute of Limitations by way of defence were ordered Limitations, to pay per-onally the costs thereby occasioned. (0 Guttrell V. Finney, 9 Cli. 5.')1 ; Salt v. Heward, 32 Ch. Div. 435. (m) National, &c. Bank v. United, Iutuality. Personal property. Section I.— Jurisdiction ;- -Agreements ; — Specific Delivery of Chattels. The jurisdiction of the Court of Chancery to make a decree for specific performance of an agreement has gene- rally been treated as part of the jurisdiction which it ex- ercised concnrrently with the Superior Courts of Common Law. Tt had its origin in the inadequacy, in many cases, of the legal remedy, in merely awarding damages for the breach of the agreement. The Court of Chancery only enforced specific performance in cases where it was considered that damages would not have afforded sufficient compensation for breach of the agree- ment. It is clear that if a large landowner agreed to pur- chase a piece of land which had a. special value to him because it immediately adjoined his own property, compen- sation in damages would afford an inadequate remedy ; but practically specific performance was enforced in favour of a purchaser or intended lessee in most cases wheie a vendor or intended lessor refused to perform a contract for the sale or for the granting of a lease of real estate of any tenure. In such a case the Court assumed without proof that the remedy in the shape of damages would be inadeqnate ; and, in order that the remedy might be mutual, the vendor or intending lessor had a corresponding right against the purchaser or intended lessee — even though damages might have afforded an adequate remedy to the former. On the other hand, damages would have afforded an ample remedy, either to the vendor or the purchaser, for breach of an agreement for the sale or purchase of a sum of Consols, as one ssum of such stock was as good as another, and accordingly there was no right to specific performance in such case. These rules still SPECIFIC DELIVEBY OF CHATTELS. 451 hold good ; but by the Sale of Goods Act, 1893 (c. 71), s. 52, it is enacted that "in any action for breach of contract to deliver specific or ascertained goods the Court may, if it thinks fit, on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifi- cally without giving the defendant the option of retaining the goods on payment of damages." There are, however, some cases where, by reason of the Exceptions. inadequacy of the remedy by way of damages and inde- pendently of the statutory piovision last referred to, the Court will compel specific performance of a contract for the purchase of personal property, e.g. of shares in a company of a particular kind, which cannot be purchased as a matter of course, or of the paintings of an eminent artist. (6) A vendor of shares in a joint stock company may also com- Action for mence an action in the nature of an action for specific per- "^demmty formance in order to obtain indemnity against calls from the on shares. purchaser, (c) The Court will not grant specific performance of an Agreement for agreement to lend money, (cd) ^°^°- Upon the principles which induced the Court of Chancery Specific to grant specific performance of agreements, the Court would, ^i^liveiy of before the Judicature Acts, make a decree for the specific delivery of chattels, in cases where the Common Law remedy by way of damages, was inadequate, e.g., in the case of heir- Heirlooms, &c. looms or articles of unusual beauty, rarity, and distinc- tion. (c&) The Court of Chancery had, and the High Court Fiduciary still has the like jurisdiction, even where the articles have '^^^^*''^°- no such peculiar value as above-mentioned, if the person wrongfully detaining the same stands in a fiduciary relation, (?)) In Oilessa, d'c, Co. v. Mendel, 8 Ch. Div. 235, the Court decreed Contract to specific performance of an agreement to take and pay for shares in a joint take shares, stock comimny. (c) Merry v. Nickalls, 7 Ch. 735, L. E. 7 H. L. 530. and cases there cited; Heritage v. Paine, 2 Ch. D. 594. See also Lorinq v. Davis, 32 Ch. D. 625 ; London, &c., Assn. v. Clarl-e, 20 Q. B. Div. 576. (ca) South Africa Territories v. Wallimjton, A. C. (98) 309; Western, d-c, Co. V. West, 1 Ch. (92) 271. As to specific performance of the terms Separation of a separation deed, see Hart v. H, 18 Ch. D. 670; Fearon v. E. of deed. Aylesford, 14 Q. B. Div. 792; Smijthe v. S., 18 Q. B. D. 544. As to attempts to obtain specific performance, by mean^ of an injunction, of Contracts for contracts for personal service or contracts which might require continued personal sui^ervision, in the pierforraance thereof, see supra, pp. 295, 296. service, &c. (d)) Puspy V. P., 1 Vcm. 273 ; D. of Somerset v. Coolcson, 3 P. W. 389 ; Falcke v. Gray, 4 Dr. 658. 2 ri 2 452 SPECIFIC PERFORMANCE. C. L, P. Act, 1854, s. 78. Enforcement o order by attachment Dismissal of action, leaving party to legal remedy. ■ Jurisdiction to award damages. Discretion of Court. e.g., that of trnetee or agent, towards the real owner, (cc} If, in a Common Law action of detinue before the Common Law Procedure Act, 1854, the defendant chose to pay to the plaintiff the amount assessed by the jury as the value of the chattels in question, the Common Law Court had no power to compel the specific delivery of the articles themselves. This power was conferred on the Superior Courts of Common Law by s. 78 of the Common Law Procedure Act, 1854 (now repealed and replaced by 0. 48, r. 1). The remedy f thereby given is by distress ; but the Court of Chancery had power to enforce obedience to its decree or order, by attachment of the person of the disobedient party. The High Court still possesses this power, — under 0. 42, r. 6, and in addition to the remedy of sequestration thereby given. The remedy by specific performance is now substantially the same in all respects as it was before the passing of the Judicature Acts, except that a plaintiff has now no right to restrain proceedings at law by injunction ; and except that where damages are claimed in addition to or in sub- stitution for specific performance, it is not now usual to dismiss an action without prejudice to an action for damages. The Court will, as a rule, in such a case, deal, at the same time, with the question of damages ; (d) but in Scott v. Alvarez, (dd) the Court of Appeal, while refusing to grant specific performance to a plaintiff vendor, on the ground that the purchaser would not, on completion, acquire a safe holding title, dismissed both the action, and a counterclaim for the return of the deposit, leaving the parties to their legal remedies — on the ground that the defendant, the purchaser, was bound by a condition of sale limiting his right to a good title. Specific performance was not, before the Judicature Acts, a matter of right in every case where there was a right to damages; but the granting or withholding thereof, was a matter within the discretion of the Court. This proposition was however subject to the qualification that the discretion was a judicial one, regulated by well-established rules; and (cc) Wood V. Roiocliffe, 3 Ha. 304 ; 2 Ph. 382. Id) Tamplin v James, 15 Ch. Div. 215 ; Elmore v. rirrle, 57 L.T. 333; Pearl, &c., Co. v. Buttenshaw, W. N. (93) 123. (dd) 2 Ch. (95) G03. SPECIFIC DELIVERY OF CHATTELS. 453 the proposition meant little more than that in some cases, and for good reasons, the Court would refuse specific per- formance, and confine a plaintiff to his remedy, if any, by way of damages — e.g. where he had been guilty of laches or delay in taking proceedings to enforce his rights. No alteration in this respect has been made by the Judicature Specific per- Acts. (e) There were also, as will more fully appear below, fonnance , whero iio some cases where, even before those Acts, specific perform- j-jg^^ ^j, ance would have been decreed where there was no right to damages. dainages at law ; but it is essential in all cases that the Valuable con- agreement, specific performance of which is claimed, should s»'i'^i'''it'on. be supported by valuable consideration. Section II. — Statute of Frauds generally. By s. 4 of the Statute of Frauds, it is enacted that no S. 4. action is to be brought to charge any person upon any con- tract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. Whether the name of a party to the agreement occurs in Position of the body of the memorandum, or at the beginning, or at the signature. end, if it is intended for a signature, it is suflScient, within the meaning of the Statute ;(/) and even if it purports to be signed by one party only, yet if it contains the name of the other party in the body thereof, and if it was prepared by that other party or his agent and handed for signature to the party who signs, the writing of the name in the body will be deemed a sufficient signature by the other party. (g) It is sufficient that the agreement be signed by the de- Signature by fendant or party to be charged only ; (h) and no objection defendant can, on this account, be raised for want of mutuality, because ]vjut,u_^iity (e) Re Terry, 32 Ch. Div. 27 ; Scott v. Alvarez, supra ; Ryan v. Mutual, &c., Assn., 1 Ch. (93) 12*;, C. A., cited supra, p. 296. (/) Evans v. Hoare, 1 Q. B. (92) 597. (g) lb. Compare Sims v. Landray, 2 Ch. (94) 318. See S. C, and also Signature of Bell V. Balls, 1 Ch. (97) 603, as to the authority of an auctioneer to sign auctioneer. as agent for the purchaser. (/i) Seton V. Slade, 7 Yes. 265 and 2 Wh. & Tu. L. C. Eq. 475. 454 SPECIFIC PERFOBMANCE. the rights and obligations become mutual by the plaintiff's Submission to submission to perform the agreement on his part, •which, perform agree- , , ,, ,.„ ,. -r,.,, „ .„ ment. under the old Chancery practice, every Bill lor specmc per- Infant. formance must have contained. But an infant cannot compel specific performance of an agreement entered into by himself; because there is no corresponding remedy against him, (i) Statement who The agreement or memorandum, in order to satisfy the parties are, terms of the Statute, must show who are the contracting and essential , ■. ■, i i -i i p \ terms of parties ; (y) the property must be described, or so reierred agreement. to that it is capable of being identified. Even parol evidence is admissible to identify the parcels ; (/c) but the writing must contain the essential terms of the agreement made by the parties. In Mmj v. Thomson, (I) the fact that the Time for Correspondence between the parties fixed no time for com- completion ; pletiou of the purchas3 of a medical practice, with the lease practice. of the house where it was being carried on, was considered by the Court of Appeal as a defect sufficient to prevent such correspondence from being a sufficient compliance with the Statute. But in the somewhat recent case of Simpson v. Hughes, (?«} it was laid down as a general rule that the (i) Lumley v. Bavenscroft, 1 Q. B. (95) 683, C. A. (agreement by infant and adult). Upon the question of mutuality in general, see Bolton V. Lambert, 41 Cli. Div. 295 (apparently inconsistent with, and therefore overruling Mayor of Kidderminster v. Hardioick, L. R. 9 Ex. 13) ; Wylson y. Bunn, 34 Ch. D. 569 ; Brewer v. Broadivood, 22 Ch. D. 1(»5. 0' ) Filby V. Hounsell, 2 Ch. (96) 740 ; Coomhs v. Wilhes, 3 Ch. (91) 77 ; Sale v. Lambert, 18 Eq. 1 ; Thomas v. Brown, 1 Q. B. D. 714 ; Bossiter V. Miller, 3 App. 1124; Catling v. King, 5 Ch. D. 660; Beer v. London, &c., Co., 20 Eq. 412. (/>;) Pla7it V. Bourne, 2 Ch. (97) 281, C. A. ; North v. Percival, 2 Ch. (98) 128. Several docu- As to the admissibility of parol evidence to connect several documents ments ; — parol 80 as to constitute an agreement, see Bidgway v. Wharton, 6 H. L. C. evidence. 238, 257 ; Baumann v. James, 3 Ch. 508 ; Sliardlaw v. Cotterell, 20 Ch. Div. 90; Oliver v. Hunting, 44 Ch. D. 205 ; Potter v. Peters, 64 L. J., Ch. 357 ; Jones v. Victoria, &c., Co., 2 Q. B. Div. 314 ; Pearce v. Gardner, 1 Q. B. (97) 688, C. A. " Interest in Upon the question what is an interest in land within the section in land " question, see Hells v. King ston-wpon- Hull, L. R. 10 C. P. 402 ; Webber v. Lee, 9 Q. B. Div. 315; Gray v. Smith, 43 Ch. Div. 208; McManus v. Cooke, 35 Ch. D. 681 ; Lavery v. Pursell, 39 Ch. D. 508 ; Angell v. Duke, L. R. 10 Q. B. 174; Pulbrook v. Latms, 1 Q. B. D. 285; Erskine v. Adeane, 8 Ch. 756 ; Driver v. Broad, 1 Q. B. (93) 744, C. A. ; Jarvia V. /., 63 L. J , Ch. 10. (0 20 Ch. Div. 705. See also Gray v. Smith, 43 Cli. Div. 208. Cases as to (^) '''^ L. T. 237, C. A. Upon the question what is a suflBcient sufficiency of agreement or memorandum under the Statute, generally, see Chinnock agreement, &c. V- M. of Ely, 4: D. J. & S. 638; Bossiter y. Miller, 3 App. 1124; North ' ' V. Percival, 2 Ch. (98) 128 ; Nt-ne Valley, dx.. Commissioners v. Dunkley, 4 Ch. D. 1 ; Hussey v. Horne-Paijw, 4 App. ?>\\ ; Bristol, &e., Co. \. Maggs, STATUTE OF FRAUDS. 455 fixing of a time for the completion is not essential, in order to constitute a sufficient memorandum within the meaning of the section ; and this is in accordance with numerous old authorities. Where the contract itself fixes no time for completion, the law will imply a term that it is to take place within a reasonable time. The mere fact that a simple acceptance in writing of a Reference to written offer contains a reference to a formal contract, does [o^i"-^' <=o°- tract. not necessarily render the acceptance conditional, (n) An agreement for a lease for a specified term must state Commence- or show when the term is to begin, (o) "^^^ ° ^^^^' The agreement, when signed by an agent, may be enforced ^-^'""^ appoiat- even if the agent has been appointed by word of mouth only ; (p) and it will be sufficient if the authority of the person purporting to act as agent, be ratified after the signing of the agreement. (3) 44 Ch. D. 616; Long v. MiUar, 4 C. P. D. 450; Bellamy v- Debenkam, 1 Ch. (91) 412 ; Wylson v. Dmm, 34 Ch. D. 569 ; Williams v. Briscoe, 22 Ch. D. 441 (couditional agreement); Studds v. Watson, 28 Ch. D. 305; Munday v. Asprey, 13 Ch. D. 855; Re Hoyle, 1 Ch. (93) 84 (promise contained in will). As to contract by telegram, see Godwin v. Contract by Francis, L. E. 5 C. P. 295 ; McBlain v. Gross, 25 L. T. 804 ; Quenerduaine teleoram or y. Cole, 32 W. R. 185 ; Harvey v. Facey, A. C. (93) 552 ; by means of a tender. tender, South, d-c, Co. v. Haswell, &c., Co., 1 Ch. (98) 465, C. A. As to the right to withdraw an offer before acceptance, see Dickinson Right to V. Dodds, 2 Ch. Div. 463; Heidhorn v. Fraser, 2 Ch. (92) 31 ; Beichel v. withdraw Bishoj) of Oxford, 35 Ch. Div. 48, 68, S. C. 14 App. 259 ; Bristol, &c., Co. offer. V. 31aggs, supra. As to tlie necessity for considering the whole of the correspondence in Contract by the case of an alleged contract by letters, see Hussey v. Home-Payne, letters ; — supra ; Bellamy v. Debenham, supra. whole of (n) Hudson v. Buck, 7 Ch. D. 683 ; Bolton v. Lambert, supra ; Crossley correspon- V. Maycock, 18 Eq. 180 ; Rossiter v. Miller, supra; Lewis v. Brass, 3 Q. B. D. dence. 667 ; Hussey v. Horne-Fayne, supra ; Gray v. Smith, 43 Ch. Div. 208 ; Stanley v. Doiodeswell, L. R. 10 C. P. 102 ; May v. Thomson, 20 Ch. Div. 705 ; Bonnevxll v. Jenkins, 8 Ch. Div. 70 ; Smith v. Webster, 3 Ch. Div. 49; Jones v. Daniel, 2 Ch. (94) 3.;2; Filby v. Hounsell, 2 Ch. (96) 742. (0) Marshall v. Berridge, 19 Ch. Div. 233, overruling Jacques v. Millar, 6 Ch. D. 153 ; Re Lander, 3 Ch. (92) 41 ; Smallwood v. Sheppards, 2 Q. B. (95) 627 (agreement for letting land for a non-continuous period) ; but see Kusel v. Watson, 11 Ch. Div. 129, where the agreement had been partly performed. (p) Filby V. Hounsell, 2 Ch. 96) 740 ; Wylson v. Dunn, 34 Ch. D. 569 ; Agreeinent by James v. Smith, 65 L. T. 544, C. A.; Chattock v. Muller, 8 Ch. D. 177; and co"i'poration. see also Bhre v. Ashby, 42 Ch. D. 682. As to the UKjcssity for a contract with a corporation being entered into or ratitied uiacjer seal or signed by an agent appointed by instrument under seal, see Mayor, &c., of Oxford V. Crow, 3 Ch. (93) 535. (g) Bolton v. Lambert, 41 Ch. Div. 295. As to the autiiority of the donee Sale of busi- of a power of attorney to join with the partners of tlic ddnor in entering ness ; — power into an agrcemuut for the sale of the partnership business us a going nf attorney ; — 456 SPECIFIC PERFORMANCE. S. 7. An agent for the purchaser will not be allowed, by 'Inists^&c, of pleading s. 7 of the Statute of Frauds, to tate a conveyance denial of to, or keep the property for himself — even if he should sign agency. as principal, aud pay the purchase money out of his own pocket, (r) Estate agent. Instructions given by a vendor to an estate agent to find a purchaser and negotiate a sale, do not amount to an authority to bind the vendor by a contract. There must be an express authority for that purpose, (s) Variation of written agreement. Section III. — Admission of Parol Evidence ; — Distinction between Seeking and Resisting Specific Performance. The terms of the Statute preclude the Court from com- pelling specific performance of a written agreement concerning land with a parol variation or addition. It will, therefore, as a rule, refuse on a plaintiffs behalf to receive parol evi- T^ ., c r dence of any such variation or addition. But the Statute is Lvidenceoi, for «^ defendant •— Only a weapon of defence ; not of offence. It does not say ftaud, mistake, ^]^at an agreement concerning land duly signed shall be binding ;(7n) but only that the agreement shall not be binding if the Statute be not complied with. It is therefore competent for a defendant to allege, by way of defence, that by fraud, («) mistake, or surprise, the written' agreement does not express the real intention of the parties or the whole of the agreement entered into by them. He may adduce parol evidence in support of such defence, and if the evidence be sufficient, specific performance will be refused, — e.g. if, in the case of an agreement for a lease at a specified rent, the lessor defendant were to prove even by parol evidence, that by mistake a provision for the payment of a premium for the granting of the lease had been omitted, he would be entitled to have the action dismissed ; (o) but the action might be waiver of unauthorised stipulations. concern, and tlie right of the purchaser to specific performance on waiving stipulations not within tlie scope of the power, see Hawksley v. Outram, 3 Ch. (92) 359, C. A. ; Lloyd v. Noicell, 2 Ch. (95) 744. (r) Rochefoucauld v. Boustead, 1 Ch. (97) 206, C A. See supra, p. 5. (8) Hamer v. Sharp, 19 Eq. 108 ; Chadburn v. Moore, 61 L. J. Ch. 674 ; Saunders v. Dense, 52 L. T. 644. (m) Hussey v. Home-Payne, 4 App. 311; Bristol, &c., Co. v. Maggs, 44 Ch. D. 622. (n) Redgrave v. Hurd, 20 Ch. Div. 1. (o) Woollam v. Hearn, 7 Ves. 211 ; Townshend v. Stangroom, Stangroom V, Townshend, 6 Ves. 328 ; where the plaintift' in the original suit as PAROL EVIDENCE. 457 successful if the plaintiff (being free from all imputation of Plaintiff fraud or wilful misrepresentation) were, by his statement of ^^!^'|' V^^ claim, to state the omitted term as to the premium, and to offer to perform the agreement with the addition. In such a case, the term omitted would clearly be to the defendant's When plaintiiT advantage. It however there were any doubt as to the l'"*^ *° "'^ effect of the addition or variation, the defendant would be entitled to elect either to perform the agreement as appearing by the written document merely, or with the addition or variation, (p) If A. and B. enter into an agreement concerning land. Right to hare some only of the terms of which are reduced to writino; agreement CtVnccllGci, and signed by B., and the remaining terms (being for A.'s benefit) are omitted at B.'s request, then if B. should re- pudiate the omitted terms, A. may successfully commence an action to have the agreement cancelled. (5) If, however, an agreement in writing be afterwards varied Subsequent by parol, the defendant will be entitled to elect whether [^^™ vana- he will perform the written agreement with or without the variation ; but if he refuse to elect, then the plaintiff will be entitled to specific performance of the written agreement without the variation, (r) Moreover if it be clearly proved Abandonment that after a written agreement concerning land has been °^ agreement. duly entered into, it has been distinctly put an end to by parol, then specific performance will be refused. The general rule above stated as to the inadmissibility Part per- of parol evidence on behalf of a plaintiff does not apply to *i*i«ia°ce. cases where the parol variation is binding in Equity on the ground of part performance. If the agreement has, with the variation or addition, been partly performed, then, as explained in the next section, parol evidence of the variation intending lessor, filed a Bill to enforce specific performance of an agree- ment for a lease with a parol variation, and thereupon the original defendant, the intended lessee, filed a cross bill for specific performance of the agreement witliout the variation. Both bills were dismissed ; the first because parol evidence of the variation was not admissible on behalf of the plaintiff'; the second because it was admissible on behalf of the defendant. (p) Martin v. Pycroft, 2 D. M. & G. 795 ; Smith v. Wlieatcrofi, 9 Ch. D. 223. (g) Jervis v. Berridge, 8 Ch. .S51. (r) In Firth v. Midhind By. Co., 20 Eq. 100, the Court decreed specific Varied agree- performauce according to the teims of two agreements in writing where a ment incapable further agreement in writing substituted therefor had become impossible of being per- by reason of the death of one of two arbitrators. formed. 458 SPECIFIC PERFORMANCE. Action to reform con- tract, and tor siiecific per- formance. Lester v. Foxcroft, Acts sufficient to take case out of statute. Payment of purchase money. Companies. or addition may be admissible even on behalf of a plaintiflf ; and specific performance may be enforced of the agreement as varied or added to accordingly. Moreover siuce the Judicature Acts, it is competent for a plaintiff successfully to maintain an action for the reformation of a contract and for the specific performance of the reformed contract in every case in which the Statute of Frauds does not create a bar. (s) Section IV. — Part Performance. Notwithstanding the express words of the Statute of Frauds, the House of Lords by its decision as long ago as 1701 in the leading case oi Lester v. Foxcroft, (t) and Lord Guilford, in an earlier case still, (m) added, as it were, a saving clause or exception to the Statute, to the effect that where a contract had been partly performed, so that the party seeking specific performance was in such a situation, that it would be against conscience for the other party to insist on the Statute as a bar to the relief sought, then specific performance would be enforced although the agree- ment were verbal only. The grounds of the decision were that if relief were to be refused in such case, the Statute which had been passed for the express purpose of preventing fraud, would itself be made an instrument of fraud, (v) Lord Selborne, L.C., has also referred the doctrine to the choice which is thereby thrown upon the Court in cases to wiiich it applies, of either undoing what has been done (which is not always possible, or if possible, not always just), or completing what has been left undone, (w) Acts of part performance must, in order to take a case out of the Statute, be such that if the party allowicg the particular acts to be done were not to be compelled to perform the agreement, he would be, as it were, committing a fraud on the other party. The payment of the wliole, and a fortiori of a part of the purchase money is not enougli to take the case out of the Statute ; (x) nor are acts which are (s) Olley V. Fisher, 3i Ch. D. 370. (0 1 Colles P. C. 108 ; 2 Wh. & Tu. L. C. Eq. 4G0 ; see also Booth V. Turle, 16 Eq. 182 ; Williams v. Evans, 19 ib. 517. (m) See Muddison v. Aldtrson, 8 App. 477. Iv) Be D. of Marlborough, 2 Ch. (94) 133. (w) Maddison v. Alderson, 8 App. 470. A company is bound by acts of part iierformance in like manner as an individual would be under like circumstancL-s : Howard v. Patient, &c., Co., 38 Oh. D. 1G3. (x) Hughes v. Morris, 2 D. M. & G. 356. PAST pehformance. 459 merely preliminary or ancillary to the carrying into effect Preliminary of the agreement, e.g. the delivery of the abstract of title, ^ '"' the giving of directions for conveyance, the viewing or measuring of the estate, making valuations, or directing valuations to be made of the stock on the land, registering deeds, or other acts of a like equivocal nature. On the other hand, if the purchaser or intended lessee of Taking real estate be let into possession of the property by the possession. vendor or intended lessor in pursuance of the contract, the act of giving possession or of permitting it to be taken (jf) "will be sufficient to take the case out of the Statute ; and Expenditure. the case will be stronger still if, as in Lester v. Foxcroft, the former have, with the knowledge of the latter, expended money on the property, (z) It is essential, however, that possession should be taken Possession under the agreement, (a) But where an intending lessee '^^ eragree- took possession the day before a draft lease, prepared ^^^^^^^. terms according to the terms of a verbal contract, was settled and of draft con- approved, and continued in possession and paid rent, under '^^''*- circumstances unequivocally referable to the contract, it was held that there bad been a sufficient part performance to take the case out of the Statute, (aa) It will not be sufficient if the possession can be referred Retaining to any other cause than the agreement, e.g. the mere hold- f^^^g^gg^" ' ing over under an expired lease ; but in one case (6) it rent, was held by Lord Cranworth, L.C., that where a lessee in occupation entered into a verbal agreement with his landlord for a new lease at an increased rent, a single payment (under the agreement) of the increased rent was sufficient to take the case out of the Statute. It would be difficult to reconcile this decision with the rule stated above that, in the case of a purchase, the payment of the whole of the purchase money is not sufficient ; and it can scarcely be looked upon as a binding authority, (c) iy) Hyde v. Warden, 3 Ex. Div. 78, 79 ; Sharman v. S., 67 L. T. 834, Agreement in C. A. (agreement in consideration of marriage). consideration (z) Kusel V. Watson, 11 Cli. Div. 129. As to the necessity of proving of marriage. that the expenditure was made on the faith of an agreement for purchase, i.^xpenditure or the granting of a lease, see Mundoy v. Jollijfe, .5 M. & Cr. 177 ; Ramsden q^ fajth of V. Dyson, L. R. 1 H. L. 129 ; riimmer v. Wellington, 9 App. G99 ; ap-reement Willmoft V. Barber, 15 Ch. D. 9G. ^ (rt) Clinan v. Coohe, 1 Sch. & Lef. 41 ; Maddison v. Alderson, 8 App. 479. (aa) Hodson v. lleuland, 2 Ch. (9G) 435. (ft) Nunn V. Fuhtan, 1 Ch. 35. (c) See observations in Uumphreys v. Green, 10 Q. B. Div. 157, 159. 460 SPECIFIC PERFORMANCE. Specific pei'- forni.ince wliere no right to damaires. When party may sue for damages ;-«^ time. No title to part of jiroperty. Rule in Equity. Section V. — Cases where time is of the Essence of the Contract. The case where specific performance was enforced on the ground of part performance affords an instance of the exercise of the jurisdiction before the Judicature Acts in favour of a plaintiff who had no right to recover damages at law. Another like case was where a plaintiflf could not sue at law in consequence of his not having observed the stipulations as to time contained in the contract for sale. Before these Acts a party to a contract must, in order to have entitled himself to sue at Law for damages, have fully performed the contract on his part in all respects, as well with reference to time as otherwise, except in so far as he had been prevented from so doing by the other party, (d) A like rule existed where there was any portion of the property, however small, to which the vendor failed to show a good title, and the contract contained no provision affecting his liability to show a good title to the whole. In Equity, however, specific performance would in general have been decreed if the justice of the case so required, and if the purchaser would, on the completion of the purchase, get substantially, though not literally, the thing he contracted for. So far as related to time, the rule was that, subject to certain exceptions which will be mentioned below, time was not in equity of the essence of the contract ; and now by the Judicature Act, 1873 (c. 66), s. 25, sub-s. 7, it is enacted that "stipulations in contracts, as to time or otherwise, which would not, before the passing of this 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 effect as they would have heretofore received in Equity." The equitable rule was based on the assumption that the completion of a purchase was attended with so many minute circumstances, that it would not be equitable that the parties should be tied to an exact compliance with the terms of the contract as to time and other matters not of the essence. Purchaser's If, however, a vendor take no steps whatsoever to complete rights on ^]^q agreement on his part, then if the purchaser, immediately default. after the time fixed for the completion of the purchase, refuse to complete, and demand back the deposit, if any, specific (d) Nolle V. Edwardes, 5 Ch. Div. 379. Judicature Act, 1873, 8. 25 (7). Reason of equitable rule. WEEN TIME ESSENTIAL. 461 performance "will be refused ; and an action or counter-claim Cases in which to recover any deposit paid would, as a rule, be successful, (e) Y,„^ity of the In the following cases time was deemed to be of the essence of the essence of the contract in Equity before the Judicature *^*'°*^'**^* ' ■"• ^ , express Acts ; and is so now in the High Court of Justice ; — stipulation, first, in cases where the agreement contains an express stipulation that it is to be so, or (which amounts to the same thing) that unless the purchase be completed on or before a certain day, the agreement shall be void. Where an agree- Time for ment for sale contains a stipulation that the abstract shall j.g"-°j^ljj°g ._ be delivered within a given number of days after the sale, default of and also a stipulation fixing a given number of days within ^^"'ior* which requisitions are to be delivered, and states that in this latter respect, time shall be deemed to be of the essence of the contract; then if the vendor do not deliver the abstract within the time specified, he will be precluded from insisting upon time being of the essence, so far as relates to the time for sending in requisitions. (/) Time will also be of the essence of the contract if the Speculative property be of a fluctuating or speculative character, e.g. a P^'^P^^ty) ^c. reversion or mining property ; {g) also on the sale of a public Sale of public house as a going concern, (h) and in other cases where it is "^^^* (e) Lloyd v. Collett, 4 Bro. C. C. 469, 4 Ves. 689, n. ; Pinche v. Curteis, Bad title. 4 Bro. C. C. 332 : see supra, p. 27. (/) Vpperton v. Nicholson, 6 Ch. 436. It would appear that the usual condition confining a purchaser to objections and requisitions on the title which may have been delivered within the time specified in the contract does not apply to the case of a vendor being unable to deduce a good title, but only to objections and requisitions which can be enforced against a vendor who has a good title : Want v. Stallibrass, L. K. 8 Ex. 175 ; Saxby V. Thomas, 63 L. T. 695 ; on appeal, 64 L. T. 65 ; Rosenberg v. Cooh, 8 Q. B. Div. 162; Scott v. Alvarez, 2 Ch. (95) 613, C. A. The time for the delivery of requisitions only begins to run from the Perfect time when a perfect abstract has been delivered : Want v. Stallibrass, abstract, supra ; Gray v. Fowler, L. R. 8 Ex. 279 ; Ee Jackson, 14 Ch. D. 851 ; Sherwin v. Shahspear, 5 D. M. & G. 517. (g) Newman v. Bogers, 4 Bro. C. C. 393 ; Levy v. Stogdon, I Ch. (98) 478. In an unreported case of Curling v. Child in 1868 Lord Romilly, M.R., applied the principle to the case of a sale of a policy on the life of a living person ; and though the delay was not great, dismissed the purchaser's bill with costs. (h) Cowles V. Gale, 7 Ch. 12 ; Farnham, &c., Co. v. Hunt, 68 L. T. 443. As to the liability of a vendor of a licensed house, see Tadcaster, d-c, Co. V. Wilson, 1 Ch. (97) 705 ; and as to the course to be adopted by an owner, when licenses are in danger of being forfeited by the misconduct of a tenant, see the Licensing Acts, 1828 (9 Geo. 4), c. 61, ss. 1, 4, 14; 35 & 36 Vict. c. 94, sd. 40 (2). 56 ; 5 & 6 Vict. c. 44, s. 1 ; Garrett v. JJ. of Middlesex, 12 Q. B. D. 620; Beg. v. JJ. of Andover, 16 ib. 711 ; Beg. v. Hughes, 2 Q. B. (93) 530. 462 SPECIFIC PEBFORMANCE. Propci'ty wanted for particular trade, &c. Inconsistent stipulation as to interest. Option to purchase. Option to obtain lease. known to the vendor, at the date of the agreement, that the property is required for carrying on a particular business, or for the purpose of residence by a particular time; {i) but not if the contract contain the usual provision for payment of interest, in case the purchase be not completed by the time stipulated. (/) Time will also be of the essence in the case of a mere option to purchase, or unilateral contract, — where there is no right in the vendor to enforce a sale except upon the purchaser complying with some condition or condition's precedent. In such case, the purehascr cannot enforce specific performance unless he strictly and in every respect, as well with reference to time as otherwise, comply with the conditions entitling him to purchase ; and until those conditions shall have been performed, the relation of vendor and purchaser does not exist. Therefore if a lease contain a stipulation to the effect that upon the lessee, within a fixed time, giving a certain notice and paying a certain sum of money, he may purchase the reversion in fee simple of the property leased, — the lessee, in order to be able to enforce specific performance must, within the time limited, both give the notice and pay the money ; and the fact that this might involve the payment of the whole of his purchase money without his being able to obtain a conveyance till some time afterwards, would be no excuse for non-compliance. (Jc) The like principle applies to an option to obtain the grant of a lease or of a new lease, (l) Separate leases ; — separable contract. Forfeiture of ojition. (i) Tilley v. Thomas, 3 Ch. 61. (/) Wehb V. Hughes, 10 Eq. 281; Patrick v. Milner, 2 C. P. D. 342 ; Eatton V. Eussell, 38 Ch. D. 334. (k Weston v. Collins, 11 Jur. N.S. 190; Eanelagh v. Melton, 2 Dr. & Sm. 278 ; Ward v. Wolverhampton, etc., Co.. 13 Eq. 243 ; Nicholson v. Smith, 22 Ch. D. 640 ; Dibbins v. D., 2 Ch. (96) 348 ; Mills v. Haywood, 6 Ch. Div. 196 : where it was held that the terms of the agreement in question did not make the payment of tlie purchase money a condition precedent, Bucliand v. Papillon, 2 Ch. 67; Re Adam^, 27 Cli. Div. 394; Re Cousins, 30 Ch. Div. 203 ; Kusel v. Watson, 11 Ch. Div. 129. (I) Rastin v. Ridwell, 18 Ch. D. 233 ; Gas, &o., Co. v. Towse, 35 Ch. D. 519. As to the right of an intended lessee (as a question of conslriiction) to separate leases of diUVrent plots of land, without having fulfilled the terms of the contract as to the remaining plots, see Wilkinnou v. Clements, 8 Ch. 96; Loivther v. Heather, 41 Ch. Div. 248; and up 1 excluding prove the fact to be true, and the statement of fact must be purchaser's an honest and fair one ; it must not, for the purpose in hand, rights, be a part of the truth only ; it must, so far as that purpose is concerned, be the truth and the whole truth, (y) (0) Re Gloag, 2.3 Ch. D. 320. (_p) Ellis V. Rogers, 29 Ch. D. 666. (g) Re Gloag. supra. (r) Cato V. Thompson, 9 Q. B. D. 616. (s) Re Banister, 12 Ch. D. 131. (0 Re Sandbash, 1 Ch. (91) 99 ; Best v. Eamnnd, 12 Ch. D. 1 ; but compare Edwards v. Wickwar, 1 Eq. 68; Else v. E., 13 Eq. 196; Scott v. Alvarez, 2 Ch. (95) 603, C. A. (m) Re Harris, W. JS. (94) 19. (v) Re Banister, 12 Ch. D. 136. As to misleading conditions in general, Misleading see Re Marsh, 24 Ch. D. 11 ; Denny v. Hancock, 6 Ch. 1 ; Heijwood v. conditions in Mallalieu, 25 Ch. D. 357 ; and as to misleading particulars or descriptions general. of the property sold : Torrance v. Bolton, 8 Ch. 118 ; Re Arnold, 14 Ch. D. Misleading 270; Baslcconib v. BecJciuith, 8 Eq. 100; Dimmocl; v. Ealktt, 2 Ch. 21; particulars, Jones V. Rimmer, 14 Ch. D. 588 ; Re Gerard, 3 Ch. (94) 295. &c. 476 SPECIFIC PERFORMANCE. V. & p. Act, Subject to any stipulation to the contrary (w) contained in 1874, s. 2; ^]^q Contract, it is by the Vendors and Purchasers Act 1874 Conv. Act, . , 11- 1881 (c. 78) s. 2, among other things, enacted that "under a Lessor's contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehohl," — and by the Conveyancing Act 1881 (c. 41) s. 3 (1), (x) that " under a contract to sell and assign a term of yeais derived out of a leasehold interest in land, the intended assign shall not have the right to call for the title to the leasehold reversion." It will, however, be competent for an intended lessee or a purchaser to show that the title to the reversion is bad ; (?/) or that the intending lessor or vendor has mortgaged his interest in the property, in which latter case specific performance will be refused unless either the mortgagee join in granting the lease or making the assignment, or unless the case comes within s. 18 of the Other Act of 1881. (z) An intended lessee or a purchaser may property com- q\^q y^ absence of any stipulation to the contrary, obiect to prised in lease. , . , "^ -^ . . , . the title on the ground that otner property is comprised m the lease agreed to be granted or assigned, so as to render the whole liable to be forfeited by reason of the act or Conv. Acts ; — default of some person other than himself, (a) The law in relief against -fchis respect has not been altered since the passing of the forfeiture. ^ • a • /7x j. o Conveyancing Acts, (b) Proof albmde These statutory provisions have not altered the rule stated of bad title ; ^-^ ^ former part of this work- (c) that a person havinac notice mortgage. *■ \ / a o (iu) See Re Pursell, "W. N. (93) 152. Liability to (x) See also sub-s. 8. It haa lately been held by a Divisional Court produce that, having regard to the terms of si ction 13, under a contract to sell underlease. and assign a term of years derived out of a leasehold interest in land, or to grant a lease for a term of years to be derived out of a leasehold interest with a leasehold reversion, the intended assign or lessee has the right to call for the lease under which the intended assignor or lessor holds: Gosling v. Wool/, 1 Q. B. (93) 39. Payment of When an assign of part of the land comprised in a lease pays the entire whole rent by rent under threat of distraint, he has no right to contributicm against an part owner. underlessee of the remainder of the 1 lud : Johnson v. Wild, 44 Ch. D. 146. Eight of way. (y) Jones v. Wafts, 43 Ch. D. 574, where it was held that the section precluded the purchaser from requiring the title of the intended lessor to a drive over which he was to grant a right of way to and from the property agreed to be demised. (z) Waddell v. Wolfe, L. R. 9 Q. B. 515, where it was held that the purchaser was entitled to have his d(;poBit returned. See also Jones v. Clifford, 3 Ch. D. 779. (a) Darlington v. Hamilton, Kay, 550. (h) Cresswell v. Davidson, 56 L. T. 811. See supra, pp. 268, et seq. (c) Supra, p. 75. TITLE. 477 of a title deed, is fixed with constructive notice of its con- tents. Therefore a lessee is still fixed with constructive Constructive notice of his lessor's title ; so that if the property has been ""*^'^^' conveyed or leased to the latter by a deed containing a cove- nant in the usual form, prohibitiug the carrying on of certain trades, a person purchasing or taking an umJerlease from him will be fixed with constructive notice of the covenant, and will not be able to resist an injunction to restrain the breach thereof, on the ground that he had no actuU notice or knowledge of its existence, or that he accepted his lease on the faith of his lessor's statement that the property was not subject to any restrictive provision whatsoever, (d) Where, however, a person enters into an agreement to take Notice of an underlease, or to purchase an existing lease, he is not ^^^^^ '■> re 1 1 n %• -t • • />i onerous aflected before completion with constructive notice oi the covenants. covenants contained in the lease, and he is not bound to complete the contract if the lease is subject to onerous cove- nants of an unusual character, unless before the agieement was made, he had a fair opportunity of ascertaining for him- self the terms of such covenants, (e) Although as appearing in a former part of this work, (/) Notice of notice of a tenancy is notice of the title of the tenant, this *'^"''^°'=y- rule does not apply as between vendor and purchaser; for it is the duty of the vendor to state the nature of the tenancy ; and the purchaser is not bound to make inquiries of the tenant as to the nature of his interest, though it is both prudent and usual so to do. (g) When an agreement has been entered into for the sale of License to leasehold property which cannot be assigned without the ^^"'a"- license of the lessor, it is the duty of the vendor to obtain the license to assign. But it would appear to be sufficient {d) Patman v. Earland, 17 Ch. D. 353; Mogridge v. Clapj), 3 Ch. (92) 394. (e) Be White, 1 Ch. (96) 637 ; Reeve v. Berridge, 20 Q. B. D. 523. What are Upon the question, what are usual covenants? see 5 Davidson's Pre- "usual cedents, 51 ; Hampshire v. Wichens, 7 Ch. D. 555 ; Re Andertoii, 45 Ch. D. covenants." 476; Be Lander, 3 Cii. (92) 41 (public house); Midgley v. Smith, W. N. (93) 120; Hyde v. Warden, 3 Ex. Div. 72: Strelley v. Pearson, 15 Ch. D. 113 (mining lease). As to the covenants to be hiseited in an undirloiise Underlease to where the agreement-provides that it is to contain the same covenants, contain same &c., as are contained in the superior lease, see Williamson v. IF., 9 Ch. j-ovenants as 729 ; Haywood v. SUher, 30 Ch. D. 404 ; Be Tebb, W. N. (79) 100. superior (/) Pp. 75, 76. lease. (g) Caballero v Henty, 9 Ch. 447, Dart, 519. But see Letcis v. Stephenson, 78 L. T. 165. 478 SPECIFIC PERFORMANCE. Time for if the license be obtained before the time of completion. (K) obtaining. j^ ^^^ agreement be made " subject to the landlord's approval " Reasonable ^ ^-^ lessor refuses his approval, the vendor is not bound efforts to obtain ^^ . -,.■,. license. to take legal proceedings to compel him to give his license to the assignment. It is sufficient if he use all other reasonable efforts to induce him so to do. (i) When notice Upon the principle stated above when a sale is made by a under Settled tenant for life under the powers of the Settled Land Acts, it be ffiven kc^ i^ sufficient fur the protection of the purchaser, if by the time he comes to complete, there are trustees to whom he may pay his purchase money if required so to do under section 22 of the Act of 1882 (c. 38), and notice has been given to them under s. 45, sub-s. 1 ; — though under sub-s. 3, a purchaser dealing in good faith with the tenant for life is not concerned to inquire respecting the giving of the notice, (y) Right to forty By the Vendors and Purchasers Act, 1874 (c. 78), s. 1, a years' title. vendor of real estate is now bound in absence of agreement Evidence " to the contrary, to deduce a forty years' title. The purchaser aliunde as to may however object to the earlier title, if he can show eai lei i e. dH^fidQ that it is bad ; (/i') and any stipulation contained in root of title ^ Contract for the purpose of limiting the period fur which a title is to be shown must give a perfectly fair description of the nature of that which is to form the root of title ; and if the root of title is an instrument, whether a deed of convey- ance, commonly so called, or a deed of settlement, or a will, or whatever it may be, its nature must, if that stipulation is Imperfect to have effect, be fairly and clearly stated. (I) A condition root. (/i) Ellis V. Rorjers, 29 Ch. D. 661. (^■) Lehmann v. McArthur, 3 Ch. 496. Conv. Act Upon the question whether a lessor is entitled to exact a fine for giving 1892 • fine liis consent, see the Conveyancing Act, 1892 (c. 13), s. 3 ; supra, p. 270, ' ' also Ee Cosh, 1 Ch. (97) 9, C. A. (j) Hatte7i V. Eussell, 38 Ch. D. 3.34. (/c) He Cox, 2 Ch. (91) 109 ; Jones v. Watts, 43 Ch. D. 574 ; Smith v. Eohinson, 13 Ch. D. 148; Nottingham, &c., Co. v. Butler, 16 Q. B. D. 778; Scott V. Alvarez, 2 Ch. (95) 603, C, A. ; hut see Re National, &c., Bank, 1 Ch. (95) 190. (0 Re Marsh, 24 Ch. D. 22. It was held by Malins, V.C, in Bolton v. London School Board, 7 Ch. D. 766, that a purchaser was not entitled to a forty years' title where a conveyance of the property more than twenty years old contained a recital that a former vendor was seised in fee simple. 'Ihe authority of this case appears to ihe Author to be very questionable. Production of This section will not exempt a vendor of leasehold property from lg^^^y_ liability to produce the lease ittelf, even though it be more than forty years old: Frend v. Buchley, L. R. 5 Q. B. 213; Williams v. Spargo, W. N. (93) 100. TITLE. 479 that the abstract shall commence with a document of a specified date will not compel the purchaser to accept an As to the title of trustees selling under depreciatory conditions of sale, Depreciatory see supra, p. 47, n. conditions. As to the effect of s. 2 of the Vendors and Purchnsers Act, 1874, relating Recitals. to the right of a vendor to retain documents of title affecting otljer V. & P. Act, property, see Re Williamfi, 2 Ch. (97) 144 (sale of land and policies com- s. 2 ; Conv. prised in mortgage) ; and as to recitals twenty years old, and the effect Act, s. 3 (3). of s. 3 (3) of the Conveyancing Act, 1881, in relation to recitals of the earlier title, see Williams v. Spargo, W. N. (93) 100 ; He Marsh, supra. As to the efi'ect of recitals in restricting the effect of the operative part of a deed, see Williams v. Finchney, 67 L. J., Ch. 34, C. A. As totiieprovisionsoftlie Conveyancing Act, 1881, s. 3 (6), with reference Conv. Act, to the expenses of abstracts, &c., of documents not in a vendor's posses- 1881, s. 3 (4) sion, see He Ebsworth, 42 Ch. D. 23 ; He Johnson, 30 Ch. D. 42 ; He Stuart, (6). Abstract, 2 Ch. (96) 328, C. A. ; Be Duthy, 1 Ch. (98) 419; Re Moody, 30 Ch. D. &c., of deeds 344. See this last case also as to sub-s. 4, under which, on the sale of not in vendor's leaseholds, the purchaser is to assume, on production of the last receipt possession ; — for rent, that the covenants, &c., of the lease have been performed and performance, observed. &c., of When the abstract shows that a mortgage has been made to a person covenants. as beneficial owner, but has been so dealt with according to the practice Trusts kept of conveyancers as to keep notice of a trust off the title, the purchaser is off the title, not, on that account, entitled to make any inquiry as to such trust : Re Barman, 24 Ch. D. 726. Upon a sale under the order of the Court, the purchaser will not be Equitable compelled to accept an equitable title without the legal estate being got title. in, except, perhaps, in the case where a dry legal estate is outstanding in an infant : Freeland v. Pearson, 7 Eq. 246. Upon the quebtion how far churchwardens in the City of Loudon, are Churchwar- a corporation fgj: the purpose of holding land, &c., see Fell v. Official dens ; — quusi Trustee of Charity Lands, 2 Ch. (98) 51, C. A. corporation. As to a title depending on the presumption that a woman of advanced Woman past age is beyond child bearing, see Broivne v. Warnock, 7 Ir. L. R. 3. child-bearing. As to loss of title deeds by a vendor, see Re Ralifax, &c., Co., W. N. ^ , , (98) 62. As to superfluous lands, under the Lands Clauses Act, 1845, see Bun- Superfluous Mil V. iV. E. By. Co., 1 Ch. (96) 121, C. A.; Blucfie v, Callander, &c., Ry. lands. Co., A. C. (9«) 270. P r f Upon the question when enfranchisement of land formerly copyhold rresumpuon oi will be presumed after having been for many years treated as freehold, entranchise- and as to a title depending on the Statute of Limitations, see Re Lidiard, "leat ; 42Ch. D. 254. Statute of Upon the question whether the lord of a manor is bound, on enfran- Limitations, chisemeut of copyhold, to give an acknowledgment of the right to pro- Lord of duction and delivery of copies of the title deeds relating to the manor, manor, court see Re Aag-Gardner, 25 Ch. D. 600. As to the right to inspect the court rolls, &c. rolls after enfranchisement, see the Copyhold Act, 1894 (c. 46), s. 62. A vendor is not bound to apportion tithe rent-charge between the Apportion- property sold and other property : Re Ebsworth, 42 Ch. D. 53. ment of tithe As to the rights of vendor and purchaser in respect of improvement rent-ciiarge. expenses under the Public Health Act, 1875 (c. 55), s 150, see Re Bettes- iniprovement worth, 37 Ch. D. 535 ; under the Metropolis Local Management Acts, expenses. Egg V. Blayney, 21 Q. B. D. 107. A charge in respect of such expenses under s. 257 of the former Act does not require registration under the Land Charges Registration Act, 1888 (c. 51) : Reg. v. V. R. of Land Registry Office, 24 Q. B. D. 178. 480 SPECIFIC PERFOBMANOE. imperfect root of title ; nor apparently preclude hira from requiring the production of recited instruments of a suspicious character, (m) If the rout of title to freehold property be a will, the vendor is, in absence of stipulation to the contrary, bound to prove the seisin of the testator. "When time is not of the essence of the contract, a vendor is, as a general rule, allowed up to the date of the Master's Certificate to complete a title which was imperfect at the Vendor having date of the contract ; (n) but this rule does not apply when no interest. Seisin of testator. Time within \fhich good title may be shown. Determination of lease ; — notice. Succession duty. Vesting order ; — application ;- costs. Destruction, &c., by fire — insurance by vendor. 14 Geo. 3, c. 78, s. 83. Stamping of deeds. Inquiry as to incumbrances. Conv. Act, 1881, s. 65; Enlargement. Upon the question what is a sufficient notice to determine a lease, see Bury V. Thompson, 1 Q. B. (95) 696. On the question when a tenancy must be deemed to liave coninienccd, and when notice to quit mu.st be given, see SidehotJmm v. Holland, 1 Q. B. (95) 378, C. A. ; Cannon Brewery v. Nash, 77 L. T. 618, C A. A purchaser of an estate or interest in possession is entitled to call upon the vendor to clear oif, before completion, any succession duty payable on the property ; and if the purchase be made from a tenant for life and the remainderman, the purchaser is entitled to have the estate cleared from the duty whicla will be payable on the death of the tenant for life. The rule is different in this latter respect in the case of a pur- chase of a reversionary interest : Re Kidd, 1 Cb. (93) 698 ; but as to settled estates, see s. 42 of the Succession Duty Act, 1853 (c. 51); Re Warner, 17 Ch. D. 711. See also Re De Hoghton, 1 Ch. (9t)) 855, C. A. ; A. G- V. Mander, 65 L. J., Q. B. 210 (legacy and buccession duty); Kenlis V. Hodgson, 2 Ch.'(9J) 458, and the Finance Acts, 1894 (c. 30); 1896 (c. 28). When a vesting order is necessary in order to complete a vendor's title under an ordinary contract for sale, the purchaser is, in absence of stipu- lation to the contrary, the party to present the necessary petition for that purpose ; and the vendor must pay the purchaser's costs in relation thereto: Bradley v. Munton, 16 B. 291; Ayles v. Cox, 17 B. 584. But in the case of a contract under the Lands Clauses Consolidation Act, 1845, these costs must be paid by the i:)urchasers : Re Liverpool, &c., Act, 5 Eq. 282. If a person agrees to purchase land and buildings, and the buildings are afterwards destroyed or damaged by fire, the loss will fall ujiou him- self, and not upon the vendor ; and he will not, in absence of stipulation to that effect, be entitled to the benefit of an insurance effected by the vendor: Raynor s. Preston, 18 Ch. D. 1 ; Castellain v. Preston, 11 Q. B. D. 380 ; Edwards v. West, 7 Ch. D. 858. But si-e 14 Geo. 3, c. 78, s. 83, entitling a person interested in houses or buildings in the metroijolis and other places within the Bills of Mortality, to require insurance moneys to be applied towards reinstating the same, also Westminster, d'c, Office v. Glasgow, &c.. Society, 13 App. 699. As to the right of a purchaser to insist upon the stamping of deeds forming part of the title, see Re Birkbeck, &o., Society, 24 Ch. D. 119, and the Stamp Act, 1891 (c. 39), s. 117. A vendor is not bound to answer an inquiry by the purchaser whether he is aware of any incumbran.^e, &c., affecting the property, but not disclosed by the abstract : Re Ford, 10 Ch. D, 365. As to s. 65 of the Conveyancing Act, 1881, giving power to enlarge the residue of a long term into a fee simple, see Re Chapman,2'3 Ch. D. 1007. (m) Philli'ps V. Caldcleugh, L. 11. 4 Q. B. 159; Dart, 172. (h) Jenkins v. Hiles, 6 Ves. 654. TITLE. 481 lie had originally no interest in the property ; and in such a case, he will not be entitled to specific performance, even though he should afterwards acquire a good title thereto, (o) When a person sells property which he is neither able to Right to convey himself, nor has tlie power to compel any other re;)uiliate person to convey, the purchaser, as soon as he finds that to ''^" ''"' * be the case, is entitled to repudiate the contract, {p) But Defect only a where the defect is simply one of conveyance, and time is "^"■'t'-''" "*' not of the essence of the contract, the purchaser is not iu ^"^"^^^^'^'^ ' general entitled to repudiate after the day fixed by the con- tract for completion, until he has given the vendor notice to remove the defect within a reasonable time, and the vendor has failed to do so. {q) If a vendor show a good title to the property, but subject to a mortgage, his liability to (o) General, &c., Association v. Boicffier, 41 L. T. 719. See also Re Deighton, 1 Ch. (98) 464, 0. A. ; Duke of Marlborough v. Sartoris, 32 Ch. D. 616. (p) Forrer v. Nash, 35 B. 171 ; Brewer v. Broadwood, 22 Ch. D. 109 (coatract to purchase agreement for lease which turned out to be void- Lease voidable able at the will of a third party); Ellis v. Rogers, 29 Ch. D. 671; by third Farnham, &c., Co. v. Hunt, 68 L. T. 440; Belhimy v. Dehenham, 1 Cli. party. (91) 420; King v. Chamberlaijn, W. N. (87) 158; Sazhy v. TJiomas, 63 L. T. 695, on appeal 64 L. T. 65 ; Weston v. Savage, 10 Ch. D. 736 ; Phillipson v. Gibbon, 6 Ch. 428; Re Cooke, 78 L. T. 106. (2) Batten v. Russell, 38 Ch. D. 334 ; Hudson v. Buck, 7 Ch. D. 688. Upon the question when a power of or trust for sale of real estate will Implied be implied in an instrument of trust, see Tail v. Lathbury, 1 Eq. 174 ; power of sale, Re Garnet Ornie, 25 Ch. D. 595. &c. If a vendor or a recent owner of the property be an undischarged Undischarffed bankrupt, the title will not be forced upon an unwilling purchaser : Re bankrunt ■— - New, &c., Association, 2 Ch. (92) 138 ; Re Clark, 2 Q. B. (94) 393 ; Re £. ' Pooley, 8 Ch. D. 367 ; Hunt v. Fripp, I Ch. (98) 675 ; Re Clayton, 2 Ch. ' (95) 212 (bankrupt vendor). See also tbe Bankruptcy Ae'ts, 188. i (c. 52), s. 55, and 1890 (c. 71), s. 13. As to the power of a trustee in bankruptcy to disclaim mortgaged property, see the Bankruptcy Acts, 1883 (c. 52), Disclaimer by 8. 55, and 1890 (c. 71), s. 13 ; Re Morgan, 22 Q. B. D. 592 ; Re Smith, trustee in 25 ib. 536. bankruptcy. As to the power of a debtor whose affairs have been arranged under a composition or scheme in bankruptcy to deal with his property, see the Bankruptcy Act, 1890, s. 3, Re Kearley, 7 Ch. D. 615; Re McHenry, 21 Q. B. D. 584. As to the registration of deeds of arrangement, see Deed.s of 50 & 51 Vict. c. 57, 51 & 52 Vict. c. 51, ss. 7-9, 53 & 54 Vict. c. 24. Arrangement. As to the power of liquidators to sell and convey the property of an ,t unregistered company, see Re Ebsworth, 42 Ch. D. 23; Re Britannia, &c., ^^^'eg'stered Society, 63 L. T. 304 ; Re Bowling, 1 Ch. (95) 663, C. A. company. Upon the question how far the existence of debentures creating a c-i ,■ floating security on the property of a company prevents their dealing . °'^.'°f. Avith the property, and as to the rights of a purchaser of such property, ''^'^"'' ^ ' see Re Home, 29 Cii. D. 736; Robson v. Smith, 2 Ch. (95) 118; Bigger- •^°'"l'=">y- staff V. Roioatt, 2 Ch. (96) 93, C. A. ; Government Stock, itc, Co., v. Manila Rij. Co., A. C. (97) 81 ; iJavey v. Williamson, 2 Q. B. (98) 194. 2 I 482 SPECIFIC PERFORMANCE. new title. Possession ; — acceptance of title. Defect which can be remedied. procure the conctirrence of the mortgagee is a mere matter of conveyance and not of title, (r) Substitution of When a vendor cannot show a good title, he has no right to compel the purchaser to accept a conveyance from some other person who can — e.g. if trustees purport to sell in exercise of a power of sale which they do not possess, they cannot turn round and compel the purchaser to accept a conveyance from a tenant for life under the powers of the Settled Land Acts, (s) The taking of possession of the property by the purchaser after the delivery of the abstract of title, and with the con- sent of the vendor, amounts prima facie to an acceptance of the title. This presumption may be rebutted by circum- stances showing that it was not intended by the parties to have that effect, {t) But there is in this respect a broad distinction between cases where the objections to the title of which the purchaser has notice are removable by the vendor, and cases in which they are irremovable. There will, in general, be no waiver in the former case, but there may in the latter, (w) (r) Greaves v. Wilson, 25 B. 298. (s) Be Bryant, 44 Ch. D. 218 ; Be Thompson. 44 Ch. D. 492 ; Be Bead, 45 Ch. D. 319 ; Bellamy v. Debtnham, 1 Cli. (91) 412 ; but see Long v. Crossley, 13 Ch. D. 388. When a tenant for life whose consent is necessary for the exercise of a power to sell real estate has incumbered his life estate and become bank- rupt, his consent to the sale can and must still be given ; but a good title cannot be made without the concurrence also of the incumbrancers and of the trustee in the bankraptcy : Be Bedivgfeld, 2 Ch (93) 335. Upon the question wlieu trustees of a compound settlement must be appointed, in order to enable a tenant for life to exercise the powers conferred upon him by the Settled Land Acts, see Be Vu Cane, 2 Ch. (98) 96. A lease granted by a person who is in fact tenant for life and in accordance with the requii-ements of the enabling sections of the Settled Land Acts will be valid, though it contain no reference to those sections, and though the lessor purport to demise as absolute owner, Mogridge v. Clapp, 3 Ch. (92) 382, and though there were no trustees to whom notice could be given under s. 45 of the Act of 1882, or s. 5. of that of 1884 (c. 18) — i.e. provided the lessee has dealt with the lessor in good faith : ib. See also s. 54 of the former Act. As to the power of the Judge in Lunacy to authorise the exercise of a power of leasing vested in an alleged lunatic, as tenant for life, under the Settled Land Act, 1882, see Be Salt, 1 Ch. (96) 117, C. A. (0 Hyde v. Warden, 3 Ex. D. 80. (m) In Be Gloag, 23 Ch. D. 327, Fry, J., referring to this distinction, says, " For instance, if the purchaser takes possession, knowing that the vendor has mortgaged the property, this will not amount to a waiver of his right to have the mortgage paid otf by the vendor. On the other hand, if a purchaser knew that the estate which he had agreed to pur- Settled Land Acts ; — banlirupt tenant for life, &c. Compound settlement ; — trustees. Lease not referring to Acts. Lunatic lessor. BENTS, INTEBEST, AND OUTOOINOS. 483 Section X. — Bents, Interest, and Outgoings. When a purcliase is not completed on the day fixed for Time fixed for that purpose, the purchaser is, in absence of express stipula- completion. tion, entitled to the rents and profits, if any, of the property from that day ; and is thenceforth liable for the outgoings, (y) He is also liable in like manner for interest from that day at 4 per cent, on the purchase money or the unpaid balance thereof, (to) and to the like interest by way of damages on Interest on the value of any timber, chattels, or other matters agreed to ^™""°* °^ - 1 . valuation, be taken at a valuation, (x) If the vendor has remained in Occupation actual occupation after the time fixed for completion, he rent. must pay to the purchaser a fair occupation rent, (y) In the Reversion, case of a reversion, the wearing but of the previous estate is ■equivalent to possession or receipt of rents. When no time has been fixed for completion, the purchaser No time fixed is, as a rule and in absence of express stipulation, bound to for completion. pay interest from the time when he takes possession, (z) or when he might prudently have taken possession, supposing it to have been ofiered to him — i.e. upon the vendor showing a good title, (a) The like rule would appear to hold when the amount of When pur- the purchase money has been determined by arbitration or ch-ase money by the verdict of a jury under the provisions of the Lands arbitration, &c •chase was subject to a right of sporting over it, vested in some third person over -whom the vendor had no control, taking possession by tlie purchaser with knowledge of the exit^teuce of this right, would "be a waiver of his right to call for the release of the sporting right, or to repudiate his contract, if it could not be relensed." The objection in the former case is a mere matter of conveyance : Greaves v. Wih'on, 25 C. 290. (v) Upon the question what are outgoings payable under the usual " Outcoino-s. condition by a vendor up to the day appointed for completion, see Lmoes " ° ' V. Gibson, 1 Eq. 135 ; Midgley v. Coppnck, 4 Ex. D. 309 ; Re Crawler/, 28 Ch. D. 431; Aldridge v. Feme, 17 Q. B. D. 212; Re Bettesworih, 37 Ch. D. 535; Egq v. Blayney, 21 Q. B. D. 107; Badeoclc v. Hunt, 22 Q. B. D. 145 : Smith v. Robinson, 2 Q. B. (93) 53 ; Tubbs v. Wiinne, 1 Q. B. (97) 74 ; Brett v. Rogers, ib. 525 ; under covenant in lease, Baylis V. Jiggens, 2 Q. B. (98) 315. (to) Esdaile v. Stephenson, 1 S. & S. 123; Jones v. Mudd, 4 Kuss. 118.- (x) Marsh v. Jones, 40 Ch. Div. 503. (y) Met. By. (h. v. De/ries, 2 Q. B. Div. 387 ; Leggott v. Met. Ry. Co., 5 Ch. 716. (z) Ballard v. Shutt, 15 Ch. D. 122. (a) Carrodus v. Sharp, 20 B. 58; Re Bigott, 18 Ch. D. 150 ; Re Keeble, 78 L. T. 383. 2 I 2 484 SPECIFIC PEBFORMANCE. Clauses Consolidation Act. (b) The purchaser is so liable, even if the land be untenanted. Default of The rule is different if the delay in completion has been vendor. occasioned by the vendor, and the interest exceeds the rents. In such case he will not be entitled to interest ;. but ho will be entitled to the interim rents and profits, (c) " Delay from Under the usual condition binding the purchaser to pay any cause. interest on the puichase money, if from any cause whatever the purchase money shall not be paid on the day appointed for completion, the purchaser must pay interest on the purchase money if the delay has arisen from the state of the title, (d~) but not if it has arisen from the wilful default of Approp]-iation the vendor. («) In cases of this kind the purchaser is bound, of purchase jf ]^g desire to relieve himself from liability to interest, to money. . , , i' • • j. appropriate the money to the puichase, and give notice to the vendor that it is lying idle, or has been placed on deposit in a bank — in which case he will only be liable for the interest, if any, allowed by the bank ; but such a notice is of course nugatory if the vendor is not in default. (/) Purchase by i When a lessee enters into a binding agreement with his lessee ;— power j^gor, to purchase the reversion of the property comprised to distrain ; — '■l -, • ^ • ^ injunction. m the lease, the result is. to suspend, m the meantime, the lessor's right to distrain for the rent payable under the lease. If the lessor were, in such a case, to distrain fer the rent pending the completion of the purchase, the Court (6) Re Pigott, supra ; Re Spencer BelJ^ 33 W. K. 771 ; but see Catling V. G. N. Ry. Co., 18 ib. 121, where it was held by the Court of Appeal that a vendor was only entitled to interest from the time when ihe amount ■was settled by arbitration, and was bound to pay the outgoings up to that time. See also obst.rvations of Chitty, J., on cases mentioned in Re Shaw, 27 Ch. D. 619. (c) E>idaih v. Stephenson, 1 S. & S. 123-; Jones v. Mudd, 4 Euss. 118. id) Sherwin v. Shalo-pear, .5 D. M. & G. 517 ; Monro v. Taylor, 3 M. & G. 713. See also Williams v. Glenton, 1 Ch. 200 (death of vendor having devised his property to infants); Herbert v. Salisbury, &c., Co., 2 Eq. 221. (e) Re MoncMon, 27 Ch. D. 555 ; Re Wilson, 3 Ch. (94) 546 ; Re Hftling, 3 Ch. (93) 269 ; Re Mayor of London, 2 Ch. (94) 524. In Re Young, 31 Ch. Div. 168, it was held tliat the delay caused by a vendor going abroad two days'beforethe time appointed for completion was such wilful default as to excuse a purchaser from payment of interest for a period proportionate to the delay. But in Sherwin v. SJiakspear, 5 D. M. & G. 517, it was held that the non-delivery of a complete abstract, at the time tixed by the conditions, would not of itself exempt the purchaser from payment of interest; but that in fixing the period for the payment of interest, the delay causad by negotiations ending in an alteration of the agreement ought to be regarded. See also Re Woods, 2 Ch. (98) 211, C. A. ; Re E. of Strafford, 1 Ch. (96) 235, C. A. (/) Re Rihy, 34 Ch. D. 386 ; Kershaw v. K., 9 Eq. 56. DAMAOHS. 485 would, as incidental to the right to specific performance of the agreement, grant an injunctien to restrain him from proceeding with the distress — either absolntely, or on the terms of the lessee paying the purchase money into Court, according to the circumstances of the case. If however, by reason of unnecessary delay or otherwilj^, the lessee should have lost his right to specific performance, the right to distrain would be revived ; and the Court would refuse to iaierfere on his behalf. (^^) Section XL — Bight to Damages. A plaintiff in whose favour the Court grants specific Damages in performance is not entitled to damages in addition, unless he ^'^'^'f^i°" *'' . . , . . speoinc can prove that he has sustained special injury by the breach performance. of the agreement — e.g. damages in the nature of compensa- tion for loss of expected profits of trade, (g) When a purchaser makes default in payment of his Defaulting purchase money, the vendor is entitled, even without an P"'"'^^^"*^'' >'"";, • 1 • 1 «> 1, 1 -I light to re-sell. express stipulation to that enect, to re-sell the property, and to claim by way of damages the deficiency in price, if any, on the re-sale, as well as the expenses incurred by him. (/i) (/) Ellis V. Wright, 76 L. T. 522, C. A. (g) Chinnock v. M. of Ely, 2 H. & M. 232, reversed on another point 4 D. J. & S. 638 ; Jaqibes v. Millar, 6 Ch. D. 153 (overruled on another point by Marshall v. Berridge, 19 Ch. Div. 2H3); Royal, (Sec, Society v. Bomash, 35 Ch. D. 3%. The repeal of Lord Cairns' Act (21 &. 22 Vict. c. 27) by 46 & 47 Vict. c. 49 has not diminished tlie power of the Chancery Division to award damages : Sayers v. Collyer, 28 Cli. Div. 103; but it has Power of Ch. now a much wider power than that conferred on the Court of Chancery by D. to award the repealed Act. The Court may now ,s;rant relief, partly by way of damages, specific performance and partly by way of damages, or by way of damages alone instead of speciiic performance in whole or in part : Elmore v. Pirrie, 57 L. T. 333 ; Foster v. Wheeler, 38 Ch. Div. 130; Pearl, &c., Co. v. Butten- shaw, W. N. (93) 123. But where the requirements of the Statute of Frauds have not been complied with, there can be no right to damages on Pm-t per- the ground of part performance, if the Court is of opinion that specific formance. performance outjht not to be enforced : Lavery v. Purcell, 39 Ch. D. 518. (7t) Noble V. Edwardes, 5 Ch. Liv. 378. The purchaser is liable to have the deposit forfeited by reason of his default in completing within a reasonable time, evenj^the contract contain no stipulation to that effect : Howe v. Smith, 27 #&. D. 89 ; Moeser v. Wisher, L. R. G C. P. 120 ; Relief against Scott V. Alvarez, 2 Ch. (9.')) 603, C. A. ; Life, (tr., Corpn. v. Hand, dc, penalty. Society, 2 Ch. (98) 239. But if such a stipulation amounts to a penalty, the Court may relieve against it on payment of the purchase money with interest : Re Dagenham Dock Co., 8 Ch. 1025 ; Burton v. Capewtll, Ac, Co., 68 L. T. 857." In Kingdon v. Kirk, 37 Ch. D. 141, where judgment was taken by default against a defendant who did ncrt appear, North, J., refused to make a declaration that the plaintiff (fv vendor) was entitled to forfeit the 486 SPECIFIC PERFORMANCE. Amount of When a person enters into a contract for the sale of real *'|!"^''*fj*.' '°** estate, the purchaser is not, as a rule, entitled to recover damages against him for the loss of his bargain, {i) Any such damages could only be recovered in an action for deceit, in which case, it is incumbent upon a plaintiff to pi'ove actual fraud. The purchaser's right to damages is, in absence of actual fraud, confined to the expenses incurred by him in reference to the agreement, and in investigating the title and otherwise ; and he is also entitled to the rettfrn Retnrn of of his deposit, with interest thereon at the rate of 4 per deposit. cent, per annum; (_/) but these rights are liable to be con- trolled by the express terms of the contract. (Jt) Agreement for The like rule applies, so far as the circumstances will lease, &c. admit, where a person having no title agrees to grant a right of way, (Z) or a lease, (w) Statute of Frauds ; deposit. Defendant to action for recovery of deposit. Damages to date of certifi- cate. Sale pendente lite ; damages. deposit and re-sell the property, except on the terms of his paying the costs of the action ; and see Soper v. Arnold, 14 App. 429, where the deposit had on the purchaser's default been forfeited under the usual condition ; it was held that the pvtrchaser was not entitled to recover the deposit in an action brought by him, upon its being discovered by the vendor three years later that he himself had no title. A purchaser who repudiates a contract to purchase real estate on the ground that it does not comply with the requirements of the Statute of Frauds cannot recover his deposit from a vendor who is willing to perform the contract: Thomas v. Brown, 1 Q. B. D. 714. When a purchase has, owing to the default of the vendor, not been completed, the purchaser's right of actiou for the recovery of the deposit must be brought against the vendor, if it has been paid lo him personally or to a third party as his agent as such ; but if it has been paid to the tliird party in the character of a stakeholder, then the action must be brought against the third party : Ellis v. Goulton, 1 Q. B. (93) 350. (z| Bain v. Fothergill, L. R. 7 H. L. 159. (j) lb. ; Redgrave v. Hurd, 20 Ch. Div. 1 : Re Hargreaves, 32 Ch. Div. 459; Re Bryant, 44 Ch. Div. 218; Comptotv v. Bagley, 1 Ch. (92) 321; Pearl, dx., Co. v. Buttenshau; W. N. (93) 123. The damages are assessed doun to the date of the Master's certificate; see 0. 36, r. 58: Hole v. Chard Union, 1 Ch. (94) 293. (k) In Hipgrave v. Case, 28 Ch. Div. 356, a vendor commenced an action claiming specific performance or, in the alternative, payment of the sum of £100 as liquidated damages which was payable by either party who should make default in performing the agreement sought to be enforced. The plaintiff sold the property, the subject matter of the action, pendente lite, and, witiiout having made any amendment, asked at the trial for payment of the £100. The action was dismissed on the ground that, upon the pleadings, the plaintiff had no alternative right to damages until there had been default by the defendant in specifically performing the agreement and that the plaintiff had rendered this impossible by his own act. But comjjare Nicholson v. Brown, W. N. (97) 52. (?) Rowe V. London School Board, 36 Ch. D. 619. (m) Gas, &c., Co. v. Towsc, 35 Ch. D. 519. INCUMBRANCE BY PURCHASER. 487 Section XII. — Liahility of Vendor to preserve the projyerty until completion of the Purchase. When a binding contract has been entered into for the Equitable purchase of real estate, the equitable interest at once passes "ont/act"" to the purchaser, subject to the payment of the purchase money ; (n) and the vendor is said to become a trustee of the property for the purchaser ; while the purchaser is sometimes said to be a trustee for the vendor of the purchase-money, with any interest paj'able thereon ; but a vendor is not a Fiduciary trustee in the fullest sense of the term. He has peculiar relation. duties of a fiduciary character, but witli a paramount right to protect his own interest as a vendor, (o) If, pending Wilful default; delay in completing the purchase, the vendor is guilty of ^''^i'"^**'*"^' wilful default in allowing the property to be untenanted, or to fall into a state of dilapidation, or to be otherwise damaged even by the acts of a stranger, he will be liable to the purchaser, in absence of stipulation to the contrary, for the loss thereby sustained, and to have the amount thereof deducted from the purchase- money, (jp) Section XIII. — Incumbrance of Interest under Contract. A person may in various ways create a charge upon real property which he has only contracted to purchase, and without having paid the whule of his purchase-money. He may contract to complete his purchase, and then to execute a mortgage of the property to the intended mortgagee ; or to pay the purchase-money, and then to require his vendor to convey or assign the property to the mortgagee instead of to (n) Re Thackicray, 40 Ch. D. 38. (o) Shaw V. Foster, L. K. 3 H. L. 838 ; Re Pagani, I Ch. (92) 236, where Lunatic vendor a vendor became lunatic, and a vesting order was made under the Lunacy vestiix^ Act, 1890 (c. 5), s. 135. order. '^ (p) Fhillips V. Silvester, 8 Ch. 173; Egmont v. Smith, 6 Ch. D. 475; [)amacres after Clarke v. Ramuz, 2 Q. B. (91) 456, C. A. These cases appear to have completion, extended the doctrine of the Court beyond that laid down by K. Bruce p • i and Turner, L.JJ., in Sherwin v. Shahspear, 5 D. M. & G. 517, where it was f"-'^P''^"'f ^^'^ held that when the comijletion had been delayed beyond the appointed ""P^*'^ emen s. time, the vendor was not liable, unless a special case were made out, to account for sums which he might have received but for his wilful default, nor entitled to an inquiry as to repairs or lasting improvements. See Royal, &€., Society v. Bomash, 35 Ch. D. 398. In Clarke v. Ramuz the purchaser recovered damages against the vendor though the fact of the deterioration was not knov.'n to either party until after the completion of the purchase. 488 SPECIFIC PERFORMANCE. Deposit of contract. himself; or he may assign to the mortgagee the benefit of the contract, (q) But a notice to the rendor that the pur- chaser has deposited the contract with a thiid party, and has entered into an agreement with that tliird party to make to him " a valid assignment " of the contract, does not bind the vendor to make inquiries whether the agreement between the purchaser and the third party has been carried into effect ; nor will it compel the vendor to refuse to execute the conveyance to the purchaser, in the event of the latter demanding a conveyance to himself, and being ready with his purchase-money. The person who claims to have the benefit of the assignment must give distinct notice to the vendor of his claim, and of his readiness to put himself in the purchaser's position for the completion of the contract, (r) Section XIV. — Vendor^ 8 Lien. When real property has been conveyed to a purchaser without payment of the whole of the purchase-money, the vendor will, in the absence of any agreement to the contrary, have a lien on the property for the purchase-money or the unpaid portion thereof, with interest from the time when the money should have been paid ; and if the purchaser make default in payment, the lien may be enforced by commencing an action to obtain a sale of the property subject thereto, and the appointment of a receiver in the meantime. (»} But the lien attaches on the property as soon as default shall have been made in payment of the purchase-money under a bind- ing contract for purchase, if not sooner ; (t) and in case of an action for specific performance being commenced, the judg- ment may contain a declaration that the plaintiif is entitled to such lien in respect of his purchase-money and interest and also for his costs, and a direction that in case of default in payment thereof, he be at liberty to apply to enforce the Money payable lien by sale or otherwise. If the purchase-money is payable by mstalmenta. ^^ instalments some of which have not become due, liberty Appointment of receiver. Declaration of lien. (q) Shaw V. Foster, L. R. 5 H. L. 338 ; Western, &e., Co. v. West, 1 Cb. (92) 271. (r) lb. (8) Boyle V. Bettws, &c., Co., 2 Ch. D. 726. (<) Re Thuckwray, 40 Ch. D. 38. The intereBt will be at 4 per cent, if no other rate be stipulated for in the event of delay in completion. VENDOR'S LTEN. 489 will be given to apply in respect of the future instalments as they shall accrue due. (u) The lien will prevail ngainst the purchaser, volunteers, anrl Against whom purchasers with notice, or even purchasers without notice ''^" "'*y ^'^ enforced. Laving only equitable interests claiming under him ; {y) but -^^^ -^^^^ ^^ . it may be waived by the original contract for the purchase, inconsistent or by subsequent agreement ; or the nature of the contract contract, may be such as to exclude the lien, {to) It may also be By conduct, waived by conduct — e.g., if the vendor so act as to lead sub- purchasers reasonably to believe that the original purchaser had power to deal with the property free from the lien, (a;) Vemloi- sign- It may be lost by the vendor executing a conveyance con- ing receipt, taining an acknowledgment of the purchase-money which has not in fact been paid, even though the person acting on the faith of the acknowledgmt-nt has only an equitable interest. (?/) The taking of an independent security on the -p.^j^-jnc execution of the conveyance may amount to a waiver of tlie independent lien ; (z) but the Court will take into consideration the security. nature of the security and other circumstances; and, as a lule, the onus is on the purchaser, and persons claiming under him, to show that the vendur agreed to rest on the securit}', and to discharge the property, (a) The mere taking Bond, bill, &c. of a bond, bill of exchange, or promissory note will not, in Conveyance general, amount to a waiver ; (&) and a like rule applies even in consideia- if the conveyance be made in consideration of an annuity. *'"° ^: . • / \ annuity ; But if the lien is exchanged for a security, (c) or for a of covenant to covenant to pay the annuity, (dj e.g, where the property P''3'' ^'*^- has been conveyed, not in consideration of the purchase- (u) Nives V. N., 15 Ch. D. 649. (y) Mackreth v. Symmons, 15 Ves. 329, 2 Wh. & Tu. L. C. Eq. 926; London, &c., Co. v. Rutcliffe, 6 App. 722. (w) Be Brentwood, &c., Co., 4 Ch. D. 562. (a;) Kettlewell v. Watson, 26 Ch. D. 510 ; Gordon v. James, 30 ib., 249. (y) Rice \. R., 2 Dr. 73 ; Biclcerton v. Walker, 31 Ch. D. 151 ; Shrop- Conv. Act, shire Union, &c., Co. v. Reg., L. R. 7 H, L. 510. Prior to the passing of i,s81, ss. 54— the Couveyaucing Act, 1881, the want of a receipt indorsed oii a mortgage 5(j^ or purchase deed amouuted to notice that the purchase or mortgage money had not been paid. An acknowledgment of payment in the body of the deed is now by virtue of that Act sufficient evidence of payment in favour of a purchaser or mortgagee having no notice to the contrary, iSee ss. 54-56, and Renner v. Tolley, 68 L. T. 815. (z) Collins V. C. 31 B. 348. (a) Hughes v. Kearney, 1 Sch. & Lef. 132. {bj Winter v. Anson, 3 Russ. 488 ; Buchland V. Pocknell, 13 Sim. 411. (c) Collins V. C, supra. (d) Buchland v. Pocknell, supra. 490 SPECIFIC PERFORMANCE. Kail way comjiany. Injunction to restrain run- ninsc of trains. money or tlie annuity, but in consideration of a bond or covenant for the payment thereof, there will be no lien on the property conveyed, (e) A vendor of land to a railway company is, in respect to his lien, in no different position from a vendor to a private individual ; and he will be entitled to the like declaration of lien as above mentioned, and on default in payment of the piircliase-money, to a subsequent order for sale, even though the railway has been actually constructed over the land ; (/) and where the lands are unsaleable at the price originally agreed upon, and the company is insolvent, he will be entitled to an injunction to restrain the company from running trains over the railway, and from continuing in possession of the land, (g) The Court may, however, direct the land to be put up for sale again, before granting the injunction, (li) Section XV. — Purchaser' 8 Lien. When pur- ch to When a sale goes off through the default of the vendor in aser entitled completing, or in showing a good title, the purchaser has, as a rule and in absence of stipulation to the contrary, a lien on the property for the amount of his deposit with interest at 4 per cent, per annum, and for his costs of the agreement, and of the investigation of the title, and of any action or proceedings necessary to enforce his rights. (^) This lien does not come into existence until the vendor is in default, (j) In a recent case, (jy') Stirling, J., enforced the lien against the purchaser from the trustee in bankruptcy of the vendor of a reversionary interest in personal property, notwith- standing that in his Lordship's opinion, the plaintiff, who claimed under the original purchaser, was precluded by laches from obtaining judgment for specific performance. An intended lessee has a corresponding right in respect of moneys properly expended by him on the property in pur- suance of the terms of the contract, {h) (e) Dixon v. Grayfere, 21 B. 118 ; Re Albert &c., Co., 11 Eq. 179. (/) Wing V. Tottenham, &c., By. Co., 3 Ch. 710. ((/) AUgood V. Merrybent, &c., Co., 33 Gli. D. 571 ; but compare Munnt V. isle of Wight Ry. Co., .5 Ch. 414. ih) WilUdms V. Aylesbury, Ac, Ry. Co., 21 W. R. 819. (i) Pearl, &c., Co. v. Buttenshaiv, W. N. (93) 123. See also Burlier v. Cox, 4 Ch. D. 464 ; Be Hargreaves, 32 Ch. D. 454 ; Be New, &c., Associa- tion, 2 Ch. (92) 146. (;■) Bodger v. Harrison, 1 Q. B (93) 173. (jj) Levy V. Stogdon, 1 Ch. (98) 478. (A) Middletou V. iMagnay, 2 H. & M. 233. Lessee ; ex- penditure on property. PARTIES. 491 Section XVI. — Parties, Special Points of Practice, and Costs. The only proper p:irties to an action for specific perform- General rule ance are, as a rule, the parties to tiie contract, or their repre- ^^ *" parties, sentatives. (w) If a mortgagor enter into a contract to sell the mortgaged property free from incumbrances, the mort- gagee is not a necessary party ; but the mortgagor and vendor must procure his concurrence in the conveyance, (n) Exceptions ; Where, however, an action is brouglit by a vendor for specific lessee ; person „ T J. <• • xi 1 > T 1 • interested in periormance and tor enforcing the vendor s lien, a le>see m pm-chase- possession whose lease has been granted subsequently to the naoney. contract ought to be made a co-defendant with the pur- chaser; (o) and a person who, by virtue of an antecedent agreement with the vendor, claims to be interested in the purchase-money, is a proper party to an action by the purchaser to have the right to the purchase-money ascer- tained, and for specific performance against the vendor, (p) A person claiming under a contract or incumbrance entered incumbrance, into or created by the vendor subsequently to the contract is ^^■' ^^^*'^' '^''*® also a necessary party to an action for specific perform- ance, (g) When the purchaser' of real estate under a binding contract Personal has died before completion, the vendor may commence an ^^l'^'*^^*^" ^ '^^ i ' _ _ -^ 01 purchiaser. action for specific performance against his legal personal representative, as the person bound to pay the purchase- money ; and he must make the heir or devisee, as the case Heir or devisee, may be, a co-defendant, as being the person entitled to the propeity. (s) In like manner the heir or devisee may, as to Action by heir real estate, commence an action against the vendor ; but if °' evisee , ' o ' poisonaJ (m) De Eoghton v. Money, 2 Ch. 170. representative. In) See s. 5 of the Conveyanciug Act, 1881 (c. 41), glYinfr power to the Con v. Act, High Court to direct or allow payment into Court of a sufficient sum to 1881, s. 5. provide for any charge or incunibraufe aifeutiug the property, also Be G. N. Ey. Co., 25 Ch. D. 788 ; Milford Haven, &c., Co. v. Mowatt, 28 Ch. D. 402 ; Re E. of Strafford, 1 Ch. (96) 235, C. A. ; Re Freme, 2 Ch. (95) 25t), 778, C. A. See this last case also u^jou the question when the Court will ailjudicate upon future rights. Future rights, (o) Bishop of Winchester v. Mid. Hants By. Co., 5 Eq. 17 ; E. St. Land Transfer Germans v. Crystal Palace Ry. Co., 11 ib. 568. See also the Land Act, 1875 Transfer Act, 1875, s. 93, enabling the Court having cognizance of a 8uit-(c. 87) s. 93. for specific performance of a contract relating to registered land, to cause the owners of registered estates and others to appear and show cause why the contract should not be specifically performed. (p) West, &c., Co. V. Nixon, 1 H. & M. 176. (q) Green v. Sevin, 13 Ch. D. 602. (»•) Cox V. Barker, 3 Cli. Div. 359. 492 SPECIFIC PERFORMANCE. the case does not come within either of the atatutes, 30 & 31 Vict. c. 69, s. 2, and 40 & 41 Vict. c. 34, {t) and he desires to compel the personal representative to pay tlie unpaid, purchase-money, he must make such representative a co- defendant. Deceased When the vendor has died before completion, then if the Act'^r 4 °°^' ^^^® comes witliin s. 4 (i<) or ». 30 of the Conveyancing Act, 1881 (c. 41), (v) his personal representative may be the only plaintiif, and the purchaser the only defendant. These may likewise be the only parties where the property consists of leasehold estate, and also where it consists of freehold estate, and the vendor has died on or after the 1st January 1898, when' the Land Transfer Act, 1897, came into opera- Laud Transfer tion. (w) But in the ease of property of copyhold or *" ' '■ customary tenure, where an admission, or any act by the lord of the manor, is necessary in order to perfect the title of a purchaser from the customary tenant, tlie customary heir or devisee must also be made a party, and should if possible be a co-plaintiif. It was necessary jDrior to the passing of the Conveyancing Act 1881 that the heir or devisee should be a party in all cases of the death of a vendor of real estate, except where an executor had po.wer to sell the same ; and when the property was settled in strict settlement, the tenants for life and all other per8on& inter- (<) See supra, p. 189. Conv. Act, (m) By this section "where, at the death of any person, there is aubsist- 1881, s. 4. ing a coutract eufurctable against liis heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs general, in any Idnd, his personal representatives shall, by virtue of tiiis Act, have power to convey the land for all the estate and interest vested in him at his daath, in any manner proper for giving effect to the contract." When deceased If the purchase-money has been paid to the vendor in his lifetime he vendor trustee would, independently of this section, be a trustee for the purchaser ; ami for purchaser, the lej^al est-dte, if vested in the vendor at the time of his dtath,. would now, in the case of freehold property, vest in his executor or administrator under s. 30 of the same Act ; — whereas if the property were of copyhold tenure, it would in case of intestacy vest in the customary heir ; see the Copyliold Act, 1894, s. 88. If in the latter case, the heir were an infant, the legal estate could be obtained by means of an application for a vesting order under the Trustee Act, 189o, s. 20. But whatever be tlie tenure of the property, the purchaser would not be a trustee at the time of his death, if the purchase-money had not been paid in his lifetime. In such case an action would be necessary. Compare Re Colling, 32 G'h. D. 335 ; Vendor becom- Re Martin, 34 Cli. D. 618, and Re Pagani, 1 Ch. (92) 2:-i6 (where the ing a lunatic vendor had become a lunatic after the date of the coutract); but see after contract, observations of Jessel, M.B., in Lytsagid v. Edwards, 2 Ch. D. 507, approved by Kay, J., in Re Thomas, 31 Ch. D. 169. («) See supra, p. 38. (w) See supra, pp. 38, 165, 178. PARTIES. 493 estetl up to and including the first tenant in tail of full age, were the proper parties. When the contract appears ex facie to be signed by one of Agent, the parties as agent for a third party, the action must be brought by or against the third party as principal, and not against the agent. When the agent purports to sign the contract as principal, then if the real principal desires to enforce the conti-act against the other party, both the real and the ostensible principals should, if possible, be co-plain- tiffs, (z) If this is not possible, it would appear that the defendant resisting specific performance is entitled to insist on both being parties, (a) But it must be borne in mind Agent for that where personal considerations enter into the contract, ""disclosed and the defendant shows that he would have been unwillins: to enter into a contract on the same terms with any person other than the ostensible principal, then the contract cannot be enforced at all : (b) e.g., if a landlord agree to grant a lease to a substantial and responsible person, he cannot be com- pelled to accept a pauper in his stead as lessee. When a vendor commences the action for specific per- Right to formance against the ostensible purchaser as sole defendant, indemnitT: the latter will be entitled to be indemnified by the real purchaser ; and may for that purpose serve him with a third party notice under 0. 16, r. 48. (c) It is not proper to make an auctioneer a party in his Auctioneer or character of stakeholder of the deposit, unless either the ^t^^'^^i^ol'ier. deposit is large, or he refuses to pay it into Court on being required so to do. (d) Actions for specific performance of contracts between Actions vendors and purchasers of real estates, including contracts ^^/^g"*^^ *° ^^^ for leases, are by s. 34 of the Judicature Act, 1873, spe- Division, cially assigned to the Chancery Division ; but by s. 67 (4) County Court of the County Courts Act, 1888 (e. 43), the County Courts jurisdiction. have jurisdiction to grant specific performance of or the reforming, delivering up or, cancelling of any agreement for the sale, purchase, or lease of any property, where, in the (z) Nelthorpe v. Holgate, 1 Coll. 203 ; Beer v. London, *c., Co., 20 Eq. 412 ; Smith v. Wheat'roft, 9 Ch. D. 223 ; Archer v. Stone, 78 L. T. 34. (a) Nelthorpe v. Holgnte, supra; Small v. Atwood, Younge, 457. (6) Smith V. Wheatcroft, 9 Ch. D. 230. (c) Blore v. Ashby, 42 Ch. D. 682 ; compare Catton v. Bennett, 26 Ch. D. 161. (d) Egmont v. Smith, 6 Ch. D. 469 ; but see Heatley v. Newton, 19 Ch. D. 326. 494 SPECIFIC PERFORMANCE. When action may l)e cora- menced. Costs of action if prematurely commenced. V. & P. Act, 1874 (c. 78), s. 9 ; — decision of questions of title, &c. Matters within the section. case of a sale or purchase, the purchase money, or in the case of a lease, the value of the property, does not exceed the sum of £.500. Except in the case where an action for specific performance becomes necessary in consequence of the death of a vendor who has devised the property to or allowed it to become vested in a person under disabilit}-, a party to a contract is not, as a rule, entitled to commence an action for specific performance, unless there has been a refusal, or some un- necessary delay by the other party to the agreement sought to be enforced, or when some question has arisen on the title to the property. If an action be prematurely commenced, and the defendant be willing to perform the agreement on his part, the judgment will in general be that the action be dismissed with costs — prefaced by some such words as " and the defendant by his counsel submitting to perform the said agreement." A vendor or purchaser of real or leasehold estate in England, or their {jsic] representatives respectively, may, at any time or times, and from time to time, apply in a summary way to a Judge of the Court of Chancery in England in Chambers, in resj)ect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with 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, and shall order how, and by whom, all or any of the costs of and incident to the application, shall be borne and paid. The Chancery Division has power under this section not only to answer the qiiestion submitted to it, but to direct such things to be done as are the natural consequence of tlie decision. It has power, subject to any stipulation to the contrary contained in the contract, to order the vendor to return the deposit with interest, and to pay the purchaser's costs of the investigation of the title; (/) but it has been held by North, J., (/') that a purchaser could not, under the section, recover damages by reason of the delay. (/) Rr Hnrgreaves, ^2 Ch. Div. 454. (ff) lie Wilson, 3 Ch. (94) 546. Upon the question of jurisdiction under this section jrenerallv, see Re Young, 31 Ch. Div. 168 ; Re .Tachsun, 37 Ch. D. 44 ; Re Davis, 40" Ch. D. 007 ; Re Lander, 3 Ch. (!)2) 41. PRACTICE. 495 It is essential for a plaintiff in order to bo entitled to PlaintifT must judgment for specific performance, that he be ready and ^yiiihiVto*" willing to perform the contract on his part ; and his state- i)eifoim ment of claim should contain an allegation to that effect, ^^o"*^*"^"'^- The term readiness involves ability to perform the con- ^'^'j'^y ^'^ ■J i- perform. tract. ({/) All matters which affect the validity of the contract, or Matters raised the question whether the contract is one which can be en- ^^ ^^'''^ ' forced against the defendant, are properly raised and deter- mined at the trial. Such questions, if not then raised, are not, as a rule, allowed to be dealt with afterwards. Qi) The Questions of Judge may, in his discretion, determine at the trial any ' ^* questions of title which can, in his opinion, be then con- veniently disposed of; but the common form of judgment in Common form favour of a plaintiff, where the title has not been accepted, ^/u" f-Tf "^^ * contains merely a declaration that the plaintiff is entitled accepted. to specific performance of the agreement ; and an inquiry whether a good title to the property can be made, and if so, when it was first shown that such good title could be made ; and the further consideraiion of the action is adjourned with liberty to apply, (i) When, however, the vendor is plaintiff, the declaration of his right to specific performance is made conditional on a good title being shown, (ji') When a purchaser or intended lessee is plaintiff in an Election action for specific performance, and it is doubtful whether °'^*^^^^° '- . . specihc per- the defendant is able to perform the contract, the plaintiff is formauce and not bound to make his election at the trial as between specific damages. performance and damages ; but he may have judgment for specific performance, with an inquiry as to damages in case it shall appear that a good title cannot be made to the property, (h) (g) Sipcfrave v. Case, 28 Ch. D. 361 explained, supra ; Ellis v. Rogers, 29 Clj. D. 661. (70 Hood V. Oglander, 34 B. 518; Laiorie v. Lees, 14 Ch. D. 249, 7 App. 19. (i) When a reference to Chambers to settle the terms of a lease is Covenants, directed, the Judge will, when convenient so to do, also make a declaration etc. to be <;on- for the insertion of a particular clause with regard to which an issue has taineJ in lease been raised in the pleadings : Strdley v. Feurson, 15 Ch. D. li:5. tfo be settled. (/) The reason for the omissiou of the condition when tlie purchaser is plaintiti" is that he may waive any defect in the title if he thinks fit so to do. (k) So held by Jessel, M.R., in an unreported case of tlie Author's in 1877, foUowed by Kekewich, J., in 1892, upon examiiiatiuu of the llegis- trar's Book. waived before action, 496 SPECIFIC PEBFOBMANCE. When judgment for specific perfoimance has been pro- nounced, and an inquiry directed in general terms, whether the vendor can make a good title, it must be understood to mean a good title having regard to the terms of the con- Objections tract, (p) The Court will not, under such an inquiry, enter into any question whether the purchaser before action waived any of the objections to title which he then raises. If the vendor desires to prevent objections which have been waived before the action from being renewed, he should guard him- self by insisting at the trial upon having a special judgment based upon such waiver. In such a case, if all objections have been waived, except some which are the subject of special requisitions, the special judgment should contain a declaration that the purchaser has accepted the title subject to those requisitions, and then there should be an inquiry whether a good title can be made as to the subject of those Misleading requisitions, (g) In one case, (r) however, Malins, V.C., condition being of opinion that one of the conditions was misleading, reference as to gave to the vendor who was plaitititf, the option to submit to title. an unrestricted reference as to title ; and upon his declining the option, dismissed the bill with costs. Old rule as to It was laid down man}' years ago as a general principle, doubtful title. ^Y^y^^ ^ Court of Equity would not compel a purchaser to Modern rule, accejit a doubtful title, (s) The modern rule in the Chancery Division is to decide in an action for specific performance, or on an application xmder the Vendors and Purchasers Act, 1874, all questions of title which depend on general matters of law, including the construction of puVdic Acts of Parlia- ment. But the rule is subject to the qualification that it must appear to the Judge who decides any question, that there are no decisions or dicta of weight which show that another Judge, having the question before him, might come to a different conclusion. The title will not be forced upon an unwilling purchaser, if this condition be not fulfilled ; (i) (p) Upperton v. Nicholson, 6 Ch. 436. Waiver, ('/) Vyperton v. Nickohon, 6 Ch. 444 ; MeMurray v Spicfr, 5 Eq. 527. As to WHiver of questions of title generally, see CUve v. Beaumont, 1 D. G. & Sill. .397. ' (r) Harnett v. Baiter, 20 Eq. 50. (.s) Fyrhe v. Waddingham, 10 Ha. 7 ; Mullings v. Trinder, 10 Eq. 454 ; Collier V. McBean, 1 Ch. 81. {t) Re Thachwray, 40 Ch. D. 39 ; Re Osborne, 13 Ch. D. 781 ; Palmer v. Locke, 18 Ch. Div. 381; Re Adtslury Estates, G9 L. T. 493; Scott v. Ahimz, 2 Cli. (95) 013, C. A. ; Re Clayton, 2 Ch. (95) 21G, 217; Re Maskell, ih. 525. PRACTICE. 497 nor where it depends upon " disputed questions of fact. If the rule were otherwise, a purchaser might be immediately involved in litigation with some person not before the Court in the first instance, (m) When a reference as to title has been directed, the plaintiff Proceedings should bring in the judgment, and take out a summons to ""to'titje""^ proceed, (v) Upon the return of the summons, the Master will usually direct a statement to be brought into his Chambers, showing the points in dispute between the parties ; and refer such statement together with the abstract of title, requisitions, replies thereto, and any other necessary documents to the Conveyancing Counsel, for his opiuion. When the opinion shall have been obtained, a further appointment should be taken before the Master ; and any point raised by the opinion Avill then be discussed, and if necessary adjourned for argument before the Judge, either in Chambers, or in Court. («) Any facts necessary for the Proof of fnrts investigation of the title may be proved by affidavit, (y) 7 ^ ' ''^ ' • The ultimate decision either in favour of or against the title, will be embodied in the Master's certificate, which as a rule, When certifi- becomes binding unless an application be made to vary or *^'^ ^ '" "'^* discharge the same, within eight clear days from the filing thereof. (2) If the certificate be against the title, it should state the Certificate particulars in respect whereof the title is defective ; and if ^^""^'' ^*"/;® , it be not varied, and the vendor be plaintiff, the order made defective title. in pursuance thereof on further consideration should, in Korm of order general, contain a direction for the plaintiff to repay to the when certih- defendant the deposit, if any, paid by him, with such the title ; interest thereon as he may be entitled to, having regard to the terms of the contract, and a declaration that the defen- dant is entitled to a lien on the estate for the same, and also for his costs, and a declaration that he be at liberty to apply to the Judge to give effect to such declaration ; and that thereupon the action be dismissed, (a) (m) Nottingham, &c. Co. v. Butler, 16 Q. B Div. 787, 789 ; Re New, &c. Association, 2 Ch. (92) 148. (1;) See O. 55, rr. 32 et seq. Ix) Dart, 1228. (2/) Re Burroughs, 5 Ch. Div. GOl. (z) See 0. 55, rr. 70, 71. (a) But see Hume v. FococJc, 1 Eq. 002, whore the defendant being Curint; of purcliaser in possession afterwards acquired the means of curing tlie defect i>y defect iu the title. purchaser. 498 SPECIFIC PERFORMANCE. when in favour thereof. Judgment when title accepted at trial, etc. Order in purchaser's action. When costs deducted out of purchase- money. Order upon which execu- tion may issue in vendor's action. If the certificate, either as originally settled or as varied, be in favour of the title, the order on further hearing will, in general, (if the vendor be plaintiff) direct interest to be computed on the unpaid purchase-money, and that an account be taken of the rents and profits received by the vendor; that the plaintiff's costs of the action be taxed, and that upon the plaintiff executing a proper conveyance to the defendant, (the same to be settled by the Judge in case the parties differ) and delivering up the title deeds, the defendant pay to the plaintiff the balance payable in respect of his purchase-money and interest, after deducting the amount found due in respect of rents and profits, together with the costs of the action. Judgment to the like effect may be pronounced at the trial if the title be then or have pre- • viously been accepted by the purchaser. When the purchaser is plaintiff, the direction is that upon payment by the plaintiff of the balance of the purchase- money and interest, after making the deduction aforesaid, the defendant execute a proper conveyance to the plaintiff and deliver up the title deeds. In this case the costs are usually deducted from the balance of purchase-money and interest ; {h) but if there is any doubt as to the ability of the defendant to complete — e.g. where he is impecunious, and the property is incumbered, it may be better to have an independent direction for payment of the co.-^ts. The payment of the purchase-money and the delivery of the conveyance duly executed with the other documents of title should be simultaneous acts ; and as a rule, when an order has been drawn up in either of the two forms last stated, the purchaser pays his money and obtains his convey- ance and other documents of title, if any, without fui ther trouble, and the costs are taxed and paid or allowed in account. Such a form of order would not, however, enable a vendor when plaintiff to issue execution against the defen- dant, the purchaser, upon his failing to pay the balance of his purchase-money and interest; but the vendor's solicitor should take out a summons to proceed under the order as stated above ; (c) and when the Master shall have made his certificate finding the amount due from the defendant in respect of the balance of his purchase-money, interest, and (&) Green v. Sevin, 13 Ch, D. 602. (c) See forms iu Seton 1862, 1863. PRACTICE. 499 costs, such solicitor should apply for a further order requiring the defendant to pay to the plaintiflf the amount certified to be due within four days from the day of service, and con- taining directions for the delivery to the defendant, on such payment, of the conveyance duly executed together with the title deeds, {d) A corresponding order may be made in favour of a Corresponding purchaser that, upon his paying the amount certified to be o'"''^!- in pur- due from him, the vendor do, within four or seven days, execute the conveyance, and deliver all deeds to the pur- Refusal to chaser. The Court has power to issue an attachment against execute cou- a vendor for refusing or neglecting to execute the convey- j'^fi'^"r''t ance; (e) but a vesting order may be made under the 1884, etc. Trustee Act, 1893, having the like effect. (/) When a defaulting purchaser, defendant to an action for Defaulting specific performance, is in possession of the property com- pui-chaser ; — prised in the agreement in question, it is, as a general pa\MTient into rule, competent for the plaintiff successfully to move before Court. the trial for an order that the defendant elect to pay the purchase-money into Court within one month, or to give up possession at the expiration of that time, {g) If he then gives up possession, he must pay to the vendor interest from the day appointed for completion up to the day of giving up possession. If the property has not been kept intact, or has (d) Robinson v. Galland, 60 L. T. 697 ; Morgan v. Brisco, 31 Ch. D. When convey- 216 ; 32 lb. 193. In the latter case the defendant had persistently auce to be attempted to evade the order of the Court ; and accordingly the convey- settled bv ance was directed to be settled by the judge without the addition of the judge, usual words " in case the parties ditier." This course has also been followed by Kekewich, J., where a defendant does not appear at the trial. Baxendale v. Uims, W. N. (95) 30. (e) Grace v. Baynton, 25 W. It. 506, where it was held by Jeirsel, M.R., that the Court had no povier to appoint a person to execute a leuse on behalf of an intended lessor who refused to execute, or to make a corresponding vesting order. The contrary was afterwards decided by Kay, J., in Hall v. Hale, 51 L. T. 226. (/) See supra, p. 444. (g) Greenuwod v. Turner, 2 Ch. (91) 148 ; Lewis v. James, 32 Ch. Div. 326 (^royalties payable by intended lessee of mining property). A. purchaser in possession is also liable to be restrained by injunction Purchaser from cutting timber: Crockford v. Alexander, 15 Ves. 138. cutting timber The Court in Boehm v. Wood, 2 J. & W. 236, on tiie application of the — injunction. vendor of property consistii:g of buildings and offices on which it was . necessary to effi ct insurances and of ornamental grounds requiring con- ,Pf°'°. "'f" siderable expenditure and attention, appointed a receiver pending a ° leceivei. reference as to title. A receiver will also be appointed where a purchaser of leasehold property has been let into possession, and tbe same is, by reason of his default, in danger of bting forfeited. Cook v. Andreivs, 1 Ch. (97) 266. 2 K 2 500 SPECIFIC PERFOEMANCE. Right to resciud. Costs in case of dispute as to contract. not been preserved in its proper condition, he will be ordered to pay the purchase-money into Court, without the option of giving up possession. When a purchaser, defendant in an action for specific per- formance fails to pay his purchase-money as directed by the judgment, the vendor plaintiif is entitled successfully to apply to the Judge for an order rescinding the contract for sale, and directing that all further proceedings in tbe action be stayed ; but the Court may, by way of indulgence, ex- tend the time for payment. It was held by Stuart and Bacon, V.CC, (Ji) that the ord'er rescinding the contract, and staying proceedings might contain an exception as to any application to award damages for breach of the contract ; but in a subsequent case(^) Jessel, M.R., held that a plaintiff could not obtain an order to have the agreement rescinded, and claim damages against the defendant for the breach of the agreement. This decision has been followed in a some- what recent case before North, J. (J) Sir E. Fry in his work on Specific Performance (Jc) observes that if this be a correct statement of the law, " it would seem that in many cases the Court must fail to give the plaintiff the full measure of relief requisite for replacing him in the j)osition in which he stood before the contract, — the repayment, for instance, of expenses incurred by him in showing his title." The costs of an action for specific performance are in the discretion of the Court. When the dispute between the parties is one relating only to the contract or the right to enforce it, and not to the title, the costs up to and including the trial will, as a rule, abide the event, and fall ujDon the party whose conduct has occasioned the action ;— e.^/., if the defendant resists specific performance or specific performance with compensation, and the Court enforces specific perform- ance or specific performance with compensation, the defendant will, in general, be ordered to pay the costs up to the trial, (m) But if the vendor is ready and willing before action specifically to perform the contract without compen- (70 Sweet v. Meredith, 4 Giff. 207 ; Watson V. Cox, 15 Eq. 219. (/) Eenty v. Schroder, 12 Cb. D. 667. (/) Hidchhujs V. Ilumphrey, 33 W. R. 563. See also Baker v. Williams, 62 L. J. Cli. 3i5. (k) P. 532. (m) Powell V. Elliot, 10 CIi. 430 ; Williams v. Glenton, 1 Ch. 200 (refusal of pTirchaser to pay interest). COSTS. 501 sation, the purchaser will, in general, be ordered to pay the costs of an action commenced by him for specific performance with compensation, in case no compensation be given, (n) When the costs of an action which must have been com- Costs increased menced in any event have been increased by the conduct of ^^ misconduct, one of the parties, the extra costs are, in general, ordered to be paid by the party in fault, e.g., where an action becomes Death of necessary solely in consequence of the death of a vendor, vendor, intestate, and leaving an infant heir, the general rule is to direct the costs of the infant to be paid out of the purchase- money : but with this exception to give no costs on either side, (o) The same rule would appear to apply where a vendor after the contract devises the property to an infant, and dies before completion, (jj) Any extra costs occasioned in such case by the conduct of one of the adult parties will, in general, be ordered to be paid by him. (g) The general rule that the costs abide the event is liable to be varied under special circumstances; e.g., in tbo case of improper conduct by the successful party, as by making unfounded charges of fraud against the other party, (r) f^-aud^^etc. Questions in relation to such conduct or otherwise showing a case for a special order as to costs should be dealt with at the trial, and not at the hearing on further consideration, (s) When the dispute is one of title only, the general rule is Dispute as to that the costs are given against the vendor up to the time ^ ' when he first shows that he can make out a good title. (<) But the vendor will, in general, be entitled to his costs when the purchaser's objections which have been the cause of the litigation are overruled; and the purchaser will not escaj^e his liability thereto by reason of some evidence, the want of which was never the subject-matter of dispute between them, not having been supplied until the title has been investi- gated under a reference directed in the action. («) In one Doubtful title- (n) Re Terry, 32 Ch. Div. 31 ; Poicell v. Elliot, 10 Cli. 430. (o) Barker v. Venahles, 13 W. E. 803. Ip) But iu Williams v. GUnton, 1 Ch. 200, the L.JJ. differed in opinir n as to the costs of infant devisees. (g) Williams v. Glenton, supra (refusal of purchaser to pay interest). (r) Poviell V. Elliot, 10 Ch. 430. As to C(;sts occasioned by the conduct of one of several defendants, see Wilson v. Thomson, 20 Eq. 459. (s) Powell V. Elliot, supra. It) Pliillipson V. Gihhon, 6 Ch. 434 ; Ee Mercer, 14 Ch. D. 29G ; Be Cox, 2 Ch. (91) 120. (m) Pliillipson V. Gibbon, supra. As to the liability of a vendor to pay Land Transfer costs of persons summoned under the Land Tmusfer Act, 1875 (c. 87), Act, 1875, 9. 93. see a. 94 of the same Act. ss. 93-94. 502 SPECIFIC PERFORMANCE. case, (t>) Jessel, M.R., on mating an order in favour of the title, excused a purchaser from the payment of costs on the ground that the difiHculty had arisen from the conflicting Objections decisions of the Court. In another case, {w) a purchaser taken at late defendant who took a fatal objection to the title at a late ' " ' stage of the proceedings, was refused his costs. Costs when When the Court awards damages to a purchaser or lessee dainases j^ j-^^ ^^ specific performance, and by reason of the vendor or lessor not being able to deduce a good title, the former will, as a rule, be entitled to the whole costs of the action. («) Be Osborne, 13 Ch. D. 798, questioned on another point in Re Morton, 15 ih. 143 ; but see Re Tanqueray WiUaume, 20 Ch. Div. 483. (w) Upperton v. Nicholson, 6 Ch. 436. awarded. ( 503 ) CHAPTEK XVI. THE RESCISSION, CANCELLATION AND DELIVERY UP OF AGREEMENTS. The jurisdiction of tlie Court of Chancery to grant relief Jurisdiction. by directing the rescission or cancellation and delivery up of agreements and other instruments is of somewhat ancient date. The Court granted relief to a party in such cases on the principle of quia timet, to prevent the agreement or other instrument from being vexatiously or injuriously used against him, when the evidence to impeach the same might be lost, and upon this principle the Court had jurisdiction to order the delivery up of title deeds, where they might throw a cloud or suspicion over the party's title or interest ; and a fortiori, the jurisdiction was applicable in cases where there was, prior to the Judicature Acts, a good defence in Equity, which was not available at Law. (a) The Court of Chancery had, and the High Court still has Mistalce. power to set aside a contract on the ground of a mistake common to both parties, and also on the ground of fraud or Fraud, misrepresentation. The jurisdiction to set aside transactions generally on these grounds is dealt with more fully in the two following Chapters. There is a considerable difference between the setting Effect of tlie aside of a mere agreement, and that of a conveyance or other setting aside of - , ° ,. T , 1 1 . , .1 m , • 1 ^^ agreement ; completed transaction, la the latter case the eflect is to compel a person to part with an estate ; in the former it of a convey- only prevents a person from bringing an action on the ^^'^'^^' ^'^' agreement. (&) The Court of Chancery often refused spe- cific performance on the footing of leaving the plaintiff to such remedy if any, as he might have enforced in a Court of Law (c) ; but where the Court considered that it would bo (a) Story, 694. (b) See Day v. Newman, 2 Cox, 80. (c) See siqjra, p. 452. 504 CANCELLATION OF AGREEMENTS. When agree- inequitable that the contract should be sued upon at all, it, to bo delivered ^^ ^ I'ule, ordered the same to be delivered up to be cancelled. u]). Since the Judicature Acts a contract will, as a rule, be ordered to be set aside and delivered up to be cancelled by the Chancery Division under the like circumstances as would previously have been ordered in the Court of Chancery ; — but an equitable defence may now, subject to the provisions of those Acts, be pleaded to Common Law actions in all cases where it would previously have afforded ground for filing a Bill to restrain by injunction the commencement or prosecution of such actions, {d)' Agreements and other instruments will be ordered to be delivered up to be cancelled, first, where there is actual fraud in the defendant, in which the plaintiff has not par- ticipated ; secondly, where there is a constructive fraud agaiijst public policy, and the plaintiff has not participated therein ; thirdly, where there is a fraud against public policy, and the plaintiff has participated tlierein, but public policy would be defeated by allowing it to stand (e), and lastly, where there is a constructive fraud by both parties, but they are not in pari delicto. (/) The Court will not, however, order a bond or other instrument to be so delivered up, if it is void ex facie ; because such instrument could do no harm. ((7) Jiaintenance An agreement is void if it partakes of the nature of or an I cham- involves maintenance or champerty. " Maintenance is the liefiuitioiis officious assistance by money or otherwise, proffered by a third person to either party to a suit, in which he himself has no legal interest, to enable them to prosecute or defend it." (/i) Champerty is a bargain between two persons whereby one of them, the champertor, is to carry on at his own expense an action to recover property claimed by the other party, on the terms campum partire, i.e. that the property, in (rf) See 8. 24 (2) of the Act of 1873. GamLlino- (<^) ^^ Wynne v. Callander, 1 Euss. 293, bills of exchange given for a (je ,t, . t^sts gambling debt were ordered to be delivered uj) ; but as the plaintiff was — plaintifl' particeps criminis, no costs were given against the defendant. See also pariiccps Kearley v. Thomson, 24 Q. B. Div. 742; Osborne v. Williams, 18 Ves. 379 ; criminis. Barclay v. Pearson, 2 Ch. (93) 166 et seq. ; Loundy. Grimwade, 39 Cli. D. 605 ; Jones v. Merionethshire, &c. Society, 1 Ch. (92) 173. See supra, p. 10. (/ ) St. 69.5 and see also Barclay v. Pearson, supra. {(j) Simpson v. Howden, 1 Keen, .583. (/t) Story on Contract, approved in Bradlaugh v. Newdegate, 11 Q. B. D. 6 ; Ciiy V. ChurrhiU, 40 Ch. D. 481. CANCELLATION OF AOEEEMENTS. 505 the event of its being recovered, shall be divided between them. But a mere agreement by one person to communicate information to another, on the terms of getting a share of the property, if recovered, does not of itself amount to champerty. In B,ees v. De Bernardy, (^') Eomer, J., set aside an agree- Bees v. Do ment which he held to be void, on the ground of champerty ; •"'^"'•"■"y- and, inter alia, ordered the agreement to be delivered up to the plaintiiFs to be cancelled; but in this case there was the additional element that the agreement had been obtained from persons of advanced years, illiterate, and in a very humble rank of life. A solicitor cannot resist an application for taxation of his illegal em- costs, and an account of moneys received by him, on the ployi^ent of ground that his employment was illegal, as being tainted with champerty or maintenance, (y) It would appear that an agreement whereby a solicitor is Solicitors Act, to receive a percentage on the value of property recovered in ^^''-^ '■> 1"^^'" . . ... . ceutai'"e. an action, in the event of its succeeding, is void for mainte- ° ' nance, notwithstanding the provibions of the Attorneys and Solicitors Act, 1870 (c. 28), by s. 4, whereof the remunera- tion of a solicitor may be fixed by agreement, (k) This Act Solicitors does not apply to conveyancing and other non-contentious Remuueration business dealt with by the Solicitors Kemuneration Act, 1881. An agreement under the Act of 1870 must be fair, not Agreement only in the sense that it was understood by the client, but "ni^ler 1870 , . . , , Act must be must be reasonable m amount having regard to the work fai,._ done. (Z) The Court has power to order a forged instrument to be Policy of delivered up to be cancelled (m) ; but it has been held by assurance Stirling, J., in a somewhat recent case, that, though the Court has power to direct the delivery up and cancel- lation of a policy of insurance on the ground of fraud, it has no jurisdiction to direct the cancellation of a policy, where there is a good legal defence to a claim thereunder, or to declare that there is no liability under such policy. If (0 2 Ch. (9G) 437 ; Savill v. Lawjman, 79 L. T. 44, C. A. ( j) Ite Thomas, 1 Q. B. (94) 747. (J. A. (/c) Be Attorneys and Solicitors Act, 1870, 1 Ch. D. 573. (0 lie Stuart, % Q. B. (93) 201, C. A. (Ht) Williams v. Baijley, L. K. 1 H. L. 200. 506 CANCELLATION OF AGREEMENTS. in such a case there is danger of the evidence for the defence being lost, the remedy is not an action for cancellation, but an action to perpetuate testimony, (n) In Bond v. Walford, (o) however, Pearson, J., ordered the delivery up to the plaintiff for cancellation, of the engrossment of a settlement which had been prematurely executed by her and her father, on the occasion of an intended marriage, more than three j'ears previously, and the engagement for which had afterwards been broken off. Costs. The costs of an action to set aside an agreement on the ground of fraud or misrepresentation, will, as a rule, abide the event, (p) (n) Brooldng v. Maudslay, 38 Ch. D. 6.36. (o) 82 Ch. D. 238. (p) Eeywood v. Mallalieu, 25 Ch. D. 365 ; Hart v. Swaine, 7 Ch. D. 42. ( 507 ) CHAPTER XVII. BELIEF AGAINST FRAUD. Section I. — Jurisdiction and Divisions. The subject of fraud has been treated of in the Chapter on Mortgages so far as relates to cases where the question arises which of two innocent persons is liable to suffer from the fraud of a third party ? (a) The subject has also been to some slight extent considered in Chapter XV. on Specific Performance, (h) The Court of Chancery had, in some cases of fraud, a Chancery jurisdiction concurrent with that of the Courts of Common J*^^'^ Law ; while in others its jurisdiction was exclusive. The Definition. Court refused to lay down anything in the nature of an exhaustive definition of fraud, having regard to the almost infinite number of ways in which it might be perpetrated ; but it is stated in Story (c) that it includes all acts, omissions, and concealments, which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and which are injurious to another person, or by which an undue and un- conscientious advantage is taken of another person. This definition includes not only actual fraud in the popular sig- nification of the term, but also constructive fraud which is defined by the same learned writer as (d) "such acts or contracts, as, although not originating in any actual evil design, or contrivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, (a) Supra, pp. 407-417. lb) Supra, p. 472. (c) S. 187. (d) 16. 508 FRAUD. deemed equally reprehensible with positive fraud, and, therefore, are prohibited by law, as within the same reason and mischief, as acts and contracts done and entered into malo animo." Lord Hard- Lord Ilardwicke in an old leading case, (/) gives the fol- ticati!m o/**'" I'^^i^g classification of fraud ; — first, actual fraud, arising I'rauds. from facts and circumstances of imposition ; secondly, that Actual fraud, which is apparent from the intrinsic nature and subject of Fraud inferred the bargain itself, such as no man in his senses, and not from nature of ^j^^jgj. delusion, would make on the one hand, and as no bargain ; .' , f ,, honest and fair man would accept on the other : thirdly, from tlie con- ^ _ ' "^ ' ditiouofthe that which may be presumed from the circumstances and l)artjes. condition of the parties contracting ; fourthly, that which t raud on third jj^g^-^ be collected or inferred from the nature and circum- parties ; — "^ . . . .. ^. marriao-e stances of the transaction, as being an imposition and deceit brokage con- on other peisons not parties to the fraudulent agreement or ' ■ transaction, e.g. marriage brokage contracts, clandestine contracts to return to a parent part of the portion of an intended wife, or of the provision fur an intended husband, (j/) or to give a preference to one creditor over another on the execution of a conveyance or assignment for the benefit of Catching creditors generally ; fifthly, that which infects catching hdix^ &c ^' bargains with reversioners or with heirs, or expectants, in the life of their fathers or guardians. This last division would appear to be a mere branch of the third division ; and actual fraud is generally included therein. Bribe on With reference to the fourth division the case of Chandler fea^se-— Settled ^* -BmdZe?/ (^g^) should be here mentioned. In this case, Land Act, Stirling, J., set aside a lease granted under the provisions of 18S2, s. 7(2). ^i^g Settled Land Act, 1882, in consideration of a bribe of £21, given to a tenant for life, whose interest was heavily (/) Chesterfield y. Janssen, 2 Ves. Sen. 125 and 1 \Vh. & Tu. L. C. Eq. 289. Consent to (g) When a fund is liable to forfeiture on marriage without the con- marriage sent of parents, guardians, trustees, or other persons, the Court has fraudulently power to grant relief if the consent be fraudulently withheld. See withheld. Dashwood v. Bulkeley, 10 Ves. 230 ; Be Smith, 44 Ch. D. (554, and cases What is a there cited. It is sufficient if the consent to marriage be substantially sufficient given : Daley v. Besbouverie, 2 Atk. 261 ; Be Smith, supra. As to consent. conditions in restraint of marriage generally, see Scott v. Tyler, Conditions in 2 Bro. C. C. 431, and notes thereto in 1 \Vh. <& Tu. L. C. Eq. 535 ; Allen restraint of V. Jackson, 1 Ch. Div. 399 ; Jenner v. Turner, 16 Ch. D. 18S ; Jones v. J., marriage. 1 gal heat or legal cold, legal light or legal shade." See also Joliffc v. Baker, 11 Q. B. D. 270; Thomson \. Eastwood, 2 App. 215. 2 L 514 ACTUAL FRAUD. the person who made it. There can be no question that in the case last referred to, there would have been neither moral nor legal fraud, if the defendant, upon ascertaining before completion of the sale, that the property was of copy- hold tenure, had been willing to rescind the contract, and to pay the purchaser's expenses in relation thereto. His sub- sequent conduct in refusing to allow the transaction to be set aside, was supposed to amount to legal fraud, though it might be, with more propriety, designated as inequitable conduct. Common Law ^^ *^® Common Law Action" of deceit however, the plain- action of deceit, tiff must, as a rule, prove actual fraud. By such an action it is sought to make the defendant liable in damages for the loss sustained by the plaintiff, whether the defendant has reaped any advantage from the fraud or not, e.g., where a plaintiff has lost say £1000 by giving credit to an insolvent person on the faith of the defendant's representation that he was a person in good credit. A case of this kind must be carefully distinguished from one where a person insists upon retaining an advantage to himself by means of a misrepre- sentation which he made innocently, or which another person made either innocently or fraudulently. An action for deceit may be maintained when a person makes a false representation knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false. A false statement, made through carelessness, and without reasonable ground for believing it to be true, may be evi- dence of fraud ; but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent, and does not render the person making it liable to an action of deceit, (w) This rule has been somewhat altered by the Directors Liability Act, 1890 (c. 64), so far as relates to actions to make directors and promoters of companies and others liable for statements in prospectuses and other documents soliciting applications for shares or debentures. Prior to the passing of the Judicature Acts, it was com- petent to a person who had suffered loss by having been Directors Liability Act, 1890. Fraudulent prospectus ;- remedy against deceived or misled by the misrepresentations of directors or directors, &c., promoters into becoming a shareholder in a company either — jurisdiction. (tc) Aiujus V. Clifford, 2 Ch. (91) 149 ; Deny v. Peek, 14 App. 337. ACTUAL FRAUD. 515 to commence against the directors or promoters, an action of deceit at Common Law, or to file a bill in Equity to compel tliem to make good the loss sustained, (x) All persons concerned in the carrying into execution of a Parties par- fraudulent transaction are liable to be made defendants to t"='Pf^'"g "^ . , , ^ N T • iraud ; — agent, an action to set aside the same, {xa) If an agent in the &c. course of his employment, commits a fraud upon another party, whereby damage ensues to the latter, he will be liable to the party wronged, though his principal would be so likewise. All persons concerned in the commission of a All parties fraud are, as a rule, to be treated as principals ; and no pi'^cipuls. party can, as a rule, be permitted to excuse himself on the ground that he acted as the agent or servant of another. A fortiori, this would be so where the agent himself derives Person deriv- any benefit from the fraud, (xb) '°g ^^^^efil. But the rule will not necessarily apply, when the agent Agent himself himself has been deceived. Moreover if the fraud has been '^ece'^'^'l ;— pei'petrated through the negligence or other breach of duty committed by a solicitor, in a matter in which the Court has seisin, the Court has power, under its summary jurisdiction over its own ofiicers, to order the solicitor to make good the loss thereby occasioned; but the limit of liability is the measure of loss naturally arising from the negligence or breach of duty; and the solicitor is not liable to be mulcted in any further damages. When the negligence or mis- Ratification conduct consists of a ratification of acts done without previous authority, those acts must have been done for, and in the name of the supposed principal; and full knowledge (x) Peek V. Gurney, L. R. 6 H. L. 390. See same case as to the liability of directors for issuing a fraudulent prospectus generally and indepen- dently of tlie above-mentioned Act of 1890, also Beattie v. Ebury, 7 ib. 103 ; Arnison v. Smith, -41 Ch. Div. 373 ; Andretos v. Mockford, 1 Q. B. (9G) 372, C. A. ; McKeoicn v. Boudard, &c., Co., 74 L. T. 712, C. A. As to the right to be relieved from liability on shares taken ou the faith of Removal from statements contained in a fraudulent prospectus, or otherwise, see Boss shire r'oo-ister V. Estates, &c., Co., 3 Ch. GS2 ; Wrviht's Case, 7 Ch. 5.') ; Baillie's Case, ' " 1 Ch. (98) 110; Lynde v. Anqlo-Italian, &c., Co., 1 Ch. (96) 178. Where Proceedi the company is in liqiiidation proceedings for this purpose must have been kg ♦ t '°^* ° taken betbre the winding-up : Oakes v. Turquand, L. K. 2 H. L. 32.5 ; i f ' • i Reese, &c. Co. v. Smith, 4 ib. 64; Burgess's Case, 15 Ch. D. 507; He '' ^^'"''' Scottish, d-c. Co., 23 Ch. Div. 413; Be Addlestone, &c. Co., 37 Ch. Div. 191 ; '°S-up- Be Onward, &c. Society, 2 Q. B (91) 46:^; Tomlin's Case, 1 Ch. (98) 104. As to the liability of directors for issuing preference stock under a false '^ of .stock description, see Eaglesfield v. M. of Londonderry, 4 Ch. Div. 093, affirmed ""''^'.' ''"^'^ by D. P., W. N. (78) 98. description. (xa) Phosphate, rfc, Co. v. Hartmord, 5 Ch. Div. 456. (x&) Weir V. Bell, 3 Ex. Div. 248. 2 L 2 516 ACTUAL FRAUD. When conceal- ment of facts sufFicient to have contract set aside. Property liaving valu- able mine tliereunder. Obligation to correct erro- neous state- ment ; to disclose incum- brances. Standing by and concealing one's own interest. and unequivocal adoption thereof, after knowledge, must be proved; or otherwise the circumstances must warrant the clear inference that the principal was adopting the acts of his supposed agent, whatever their nature or culpability might be. (xc) With reference to frauds arising from a suppressio veri, it should be stated that it is not every suppression of a material fact which will enable a party to set aside a contract or other transaction entered into by him : but, as laid down by Lord Thurlow in an old leading case, {y) it is also necessary to show some obligation binding the party to make such a dis- closure. In the same case his Lordship said " suppose A., knowing of a mine on the estate of B., and knowing at the same time that B. was ignorant of it, should treat and con- tract with B. for the purchase of that estate at only half its real value, can a Court of Equity set aside this bargain ? No ; but why is it impossible ? Not because the one party is not aware of the unreasonable advantage taken by the other of this knowledge, but because there is no contract existing between them by which the one party is bound to disclose to the other the circximstances which have come within his knowledge." It has generally been considered that, however reprehensible such suppression may be from a moral point of view, more mischief would be likely to arise from setting aside contracts entered into under such circumstances, than by leaving the parties in possession of the rights, and subject to the obligations arising in respect of the same thereunder. On the other hand if a person makes a material representa- tion which ho believes to be true, and during the course of negotiation, he finds the same to have been false, he is bound to correct his erroneous statement, (z) So also if a person enters into a contract for the sale of real estate, he is under an obligation to disclose an incumbrance afiecting the same. In like manner where a man, having an interest in property, stands by, and sees another man dealing with that property as owner, with another person who is ignorant of the want of title in the person with whom he is dealing. Equity will {xc) Marsh v. Joseph, 1 Ch. (07) 213, C. A. (y) Fox V. Mach-eth, 2 Cox, 320 ; 2 Wh. & Tu. L. C. Eq. 709 ; Turner V. Green, 2 Oh. (95) 205. {z) Davies v. London, &c., Co., 8 Ch. D. 469 ; but sec Nash v. Dix, 78 L. T. 445, cxplaiucd supra, p. 511. FRAUD. 517 bind the man who stands by. (a) So also if a vendor of Silence, leaseholds be informed by the piirchaser of his object in buying, and the lease contain covenants which will defeat that object, mere silence will, in Equity, be equivalent to misrepresentation. (&) So also, as will more fully appear Fiiluciary below, if in the case supposed of an estate with a valuable i"*^!"*'""- mine thereunder, the purchaser stood in a fiduciary relation, e.g., in that of trustee for the vendor, he would be under an obligation in Equity to disclose to the vendor not only the existence of the mine, but every other material circumstance within his knowledge in relation to the property. Whether Jlisleading however one of two contracting parties stands towards the statement. other party in a fiduciary relation or not, if he professes to communicate any facts, and the communications made would be misleading in any material respect, without also stating some further facts within his knowledge, the non-communi- cation of those further facts would amount to fraud ; and would be a ground for setting aside a transaction which would not have been entered into, if there had been a complete disclosure, (c) A customer of a bauk who becomes aware that the bank Bank ; — con- has paid away moneys belonging to himself, relying upon ^'^^i™'^"* "Y the genuineness of forged cheques or bills, is not allowed to forgery. lie by, and forbear to divulge the forgeries until after the position of the bank has become altered for the worse. He may, in such case, be estopped from denying the genuine- ness of the cheques or bills, (^ca) Section III. — Fraud apparent from the nature of the bargain. With reference to Lord Hardwicke's second division, it Inadequate has been stated in the previous chapter {cc) that mere in- consideration. adequacy of consideration is not p^r se a ground for setting aside a contract or other transaction, (d) But it may, with other circumstances, be very important evidence of fraud, e.g. in the old case of Evans v. LletcclUn, (e) a deed was set aside (a) Mangles v. Dixon, 3 H. L. C. 7:^9. (6) Dart, p. 106 ; Flight v. Barton, 3 M. & K. 282. See also supra, p. 472. (c) Coalis V. Boswdl, 11 App. 236. \ca) Ogilvie v. West, &c., Corpn., A. C. (96) 257. (_ce) i^tm, 19 Cli. D. 608; Hatch v. H., 9 Ves. 292. iq) Huguenin v. Baseley, 14 Ves. 273, and 1 Wh. & Tu. L. C. Eq. 247. (r) Mo'rley v. Loughnan, 1 Ch. (93) 752; Lyon v. Home, 6 Eq. 655; Ilhodes V. Bate, 1 Ch. 252. (s) Morley v. Loughnan, su2)ra; Allcard v. Skinner, 36 Oh. Div. 181 (Gift to lady superior of protestaut convent). FRAUD. ' 523 During this period M., who was in a low and morbid condi- tion, consulted the defendant on spiritual and temporal matters, allowed him to regulate his diet and his medicine, and placed nearly the whole of his fortune at the defendant's disposal. The defendant endeavoured to suppress all evi- dence of his monetary dealings with M. The aggregate amount obtained by the defendant from M. was £140,000. Wright, J., who tried the case said he had no doubt but that the relationship between the defendant and M. was of that confidential character which brought the case within that class of gifts which ought to be set aside on the ground of public policy ; but lie set aside the gifts on the ground that they had been obtained by actual undue influence and domi- nation, and ordered the money to be refunded. (€) When however a gift is made to a person standing in a Small gifts. confidential relation to the donor, the Court will not set aside the gift, if of a small amount, on the mere ground that the donor had no independent advice, (m) Moreover even in When trans- .3 /. , i-,ioTT 111 action set aside the case ol agreements purporting to be founded on valuable thou^-h inde- consideration, and a fortiori in the case of gifts, an agreement pendent or transaction, though prepared or carried into effect by an **; "^' .""^ ®™" independent solicitor, may be set aside if the party for whom the solicitor is acting is under the undue influence of the other party, (v) A solicitor is not incapacitated from purchasing property Purcnase by from his client ; but if he does so, it is at his peril. The JjJ^^t ""^ ^''''" solicitor must be prepared to show that he has acted with the most complete faithfulness and fairness ; that his advice has been free from all taint of self-interest ; that he has not misrepresented or concealed anything ; that he has given to his client an adequate price, and that the latter has had the advantage of the best professional assistance which the solicitor could possibly have afforded, if he had been engaged in a transaction with a third party, (w) Moreover if the client has become bankrupt, the solicitor will be subject to Purchase by the like obligations on purchasing from the trustee under the client's trustee bankruptcy, (x) The rule is much more stringent in the "ii bankruptcy. (t) Morley v. Loughnan, supra. (m) Allcard v. Skinner, 3tJ Ch. D. 185. (v) Moxon V. Payne, 8 Ch. 881. (to) Luddy v. Peard, 33 Ch. D. 519 ; McPherson v. Waft, 3 App. 254 ; Pisani v. A.-G. for Gibraltar, L. 11. 5 P. C. 516 ; Tomson v. Judge, 3 Drew, 306. (x) Luddy v. Peard, supra. 524 FRAUD. Gift to case of a gift to the solicitor. In an old case {y) Lord Thur- sohcitor. Yovf, L.C., said : " It is perfectly well settled that an attorney cannot take a gift while tiie client is in his hands, and there would he no hounds to the crushing influence of the power of an attorney who has the affairs of a man in his hands if it were not so." This is still the law. (2;) Gift to exe- The Court always regards a gift by a beneficiary to an cutor, &c. executor, administrator or trustee with great suspicion ; and it will not uphold the gift except under exceptional circum- stances, — circumstances which negative any suspicion of misrepresentation, pressure or unfairness on the part of the recipient, and which establish that the gift was made by the beneficiary acting deliberately, with a thorough knowledge of what he was doing, and independently of any influence by the recipient, or of any fear arising from the thought that the wishes of the latter must be complied with, owing to his position, (a) Other cases The principles now under consideration are not confined where confi- to transactions between solicitor and client ; but they extend ence repose . ^^ ^jj cases wherever there exists such a confidence, of what- ever character that confidence may be, as enables the person in whom confidence or trust is reposed, to exert influence over the person trusting him. The Court will not, in any such case, allow the transaction to stand, unless there has been the fullest and fairest explanation and communication of every particular resting in the breast of the one who seeks to establish a contract with the person so trusting him. (&) (y) Welles v. Middleton, 1 Cox, 112. See also Tomsonv.Judge, 3 Drew, 314. (z) See Tomson v. Judge, supra. In this case A. who was proved to have entertained feelings of peculiar personal regard for the defendant, his solicitor, conveyed to liim certain real estate, by a deed, on tlie face of it a purchase-deed ; the consideration expressed was £100, the real value upwards of £1,200. The defendant produced evidence to show that no money passed, that the transaction was never intended to be a purchase, but a gift for his services, and from affection. The defendant liad himself prepared the conveyance, and A. had no other advice. The deed was set aside at the suit of A.'s repr(isentativcs ; see also Morgan v. Minett, 6 Ch. D. 638 ; Liles v. Terry, 2 Q. B. (95) 679, C. A. Will prepared Where a person writes or prepares a will under which he takes a benefit, bv beneficiary • ^^'^ onus is cast ujion him to satisfy the judicial mind of the Court that suspicious ' *'^® paper propounded does in fact express the true will of the deceased. circumstances '^'^^ same rule applies to a will prepared and executed under circumstances of suspicion : Tyrrell v. Pain ton, P. (94) 157. (a) Wheeler v. Sargeant, 69 L. T. ISl. (t) Tate v. Williamson, 1 Eq. 537 ; 2 Ch. 55. FRAUD. 525 A trustee for sale cannot sell the trust property to himself. Trustee for If he purport so to do, the transaction can be set aside ; (c) ®''^*" and the fact of the conveyance being taken to a nominee of, but in trust for the trustee selling, is, as a rule, considered to be a badge of fraud. A trustee is not incapacitated from purchasing or taking a purchase by mortgage or lease from his cestui que trust ; but in order to trustee from establish any such transaction, or any other transaction of ^ cc«««i (/we p. 1279; Be Sharpe. 1 Ch. (92) 168. In this last case relief was granted in an action commenced in 1889 to make the estate of a deceased director of a company liable for paying interest out of capital between 1869 and 1878. DEFENCE. 533 caused by the delay ; (_/) or whether other persons have or may have thereby acquired new rights in the meantime. (Ic) The nature of the property is sometimes very material, e.g.. Speculative in the case of mining or other property of a speculative^'"'"^' ^' kind. (J) Delay is material where it would be practically Waiver ; — unjust to give a remedy, either because the party has by iQ"'|||J]j°''*' ^ his conduct done that which might fairly be regarded as equivalent to a waiver of his right, or Avhere by his conduct and neglect, he has, though jierhaps not waiving his remedy, yet put the other party in a situation in which it would not be reasonable to place him if the right were to be afterwards asserted, (to) When no injustice is likely to arise from granting the When time not equitable relief sought, then delay is not very material, (n) ""^ ^"* ' When fraud by one of the parties to a contract has been <5«"« probandi established, the onus is cast upon him, if he allege laches in ' ^'''^*- the other party, to show when the latter acquired a know- ledge of the truth, and to prove that the latter knowingly forbore to assert his right, (o) Section VII. — Parties, Special points of Practice, and Costs. The party who has been induced to enter into a trans- Who should be action whereby he has suffered loss is the proper person to '' *'°'^'"^ bring an action to obtain relief in respect of the fraud, if he be alive. If he be dead, the action may be brought by his (j) Re Sharpe, supra. (k) Erlanger v. Neiv, dc, Co., 3 App. 1278. (l) Clements v. Hall, 2 D. & J. 17.-! ; Ride v. Jeivell. 18 Ch. D. 660. In Erlanger v. New, &c., Co., 3 App. 1241, Lord Cairiifi, L.C., was <;f opiuinu that a delay of ten months from the time when there had been vague rumours circulated as to the fraud in question was, having regard to the peculiar nature of the property, fatal to a claim to set aside a contract for sale to a company by promoters, though part of the time had been spent in attempting to efft-ct a compromise. Ti.e majurity of tiie Lords decided to the contrary (affirming the decision of the Court of Appeal). (r«) Lindsay, &c., Co. v. Hurd, L. R. 5 P. C. 28!) ; Erlanger v. New. itc, Co., 3 App. 1230 ; Boswell v. Coalcs, 27 Oh. Div. 456 (reversed by D. P. on another point, 11 App. 23"2); Turner v. Collins, 7 Ch. 342; Allcard \. Skinner, 36 Ch. Div. 145 ; Rochefoucauld v. Boustead, 1 Ch. (07), 210, C. A. («) See Rawlins v. Wichham, 3D. & J. 304 ; Kempiton v. Ashbee, 10 Ch. 15 ; Broicn v. McClintock, L. R. 6 H. L. 456 ; Widgery v. Tepper, 7 Ch. Div. 423 (sixteen years); Thomson v. Eastwood, 2 App. 236;' Garden, &c., Co. v. McLister, 1 App. 39; Rochefoueauhl v. Boustead, supra (over twelve years). Comjjare Re Garnctt, 31 Cli. Div. L (o) Lindsay, Ac, Co. v. Hurd, L. R. 5 P. C. 221; Re Sharpe, 1 Ch. (92) 168. Judgment, &c., As to fraud in obtaining a judgment or order of Court, see Ch. XV'III. ; ;ind obtained by as to a fraud on a power, Ch. XIX., infra. fraud ; — fraud <)U a power. 534 FRAUD. Deed fi'audu- lent against creditors. Fraud by partners. Solicitor or other agent ;- costs. Division in which action to be com- menced. heir or devisee, if he was damnified in respect of his real estate, and by his executor or administrator, if he sustained damage in relation to his personal estate, (j?) In an action to set aside a settlement as having bf^en made in fraud of creditors, the parties will be, as a rule, the persons who were parties to the settlement, or their respective repre- sentatives, if dead. But it has been recently held (5) that the beneficiaries are unnecessary, though not improper parties. If any one of the parties to the transaction has died, the action may be brought against his representatives ; but only if his estate has thereby been increased, (s) An action to set aside a transaction of this kind, when committed by partners, may be brought against a surviving partner and the representative of a deceased partner ; (i) and even where the act of misfeasance in question has been committed solely by a managing partner, all the partners are jointly and severally liable, if it be within the scope of the partner- ship, (u) But it is not essential that all the partners should be parties, {y) A solicitor or other agent who has been an acting pai tici- • pator in a fraud is sometimes made a defendant in order to compel him to pay the costs of the action, though no other relief can be obtained against him.(w) The Coiirt however has no jurisdiction to order a solicitor to pay the costs of such an action, where his conduct has amounted to a mere blunder (a;). Actions for relief against fraud, when they take the form of actions for the rectification, setting aside, or cancellation of deeds, or other written instruments, are, by s. 34 of the Judicature Act 1873, (i/), assigned to the Chancery Division of the High Court; but in other cases they may be com- menced either in the Chancery or the Queen's Bench Division, (p) Ttvycross v. Grant, 4 C. P. Div. 47. (g) Merry v. PoimaU, 1 Ch. (9S) 306. (s) PJdlUps V. Homfray, 24 Ch. Div. 439 ; Neii\ &c., Co. v. Erlanger, 5 Ch. Div. 117, 118, atKrmed by D. P., 3 Aj.p. 1218. (<) Neiv, (fcfl., Co. V. Erlanger, supra. (m) Ih. ; Flumer v. Gregory, 18 Eq. 627. See also Chapter XXII., infra. (v) Flumer v. Gregory, supra; hut see Atkinson v. Mackreth, 2 Eq. 572. (w ) Clark v. Girdwood, 7 Ch. Div. 23 ; Phosphate, &c., Co. v. Hartmont, 5 Ch. Div. 394. (x) lb. (v/) See supra, y>. 3. PRACTICE. 635 Th.e County Court, however, has jurisdiction, under the County Court, Act of 1888 (c. 43), s. 67 (8) to entertain an action for relief J"'"''*'^'''*''''*- against fraud or mistake, where the damage sustained, or the estate or fund in respect of which relief is sought, dues not exceed in amount or value tl:e sum of £500. If an action be based on fraud which the plaintiff fails to Action based substantiate, it will in general be dismissed ; but if the "" ^'"^"'^ ^°^ . . . . . proved, charge of fraud he only subsidiary, and if, after striking out such charge from the statement of claim, there is still left a statement of a good case for equitable relief, and this case be proved, then so much only of the claim as is based on fraud is liable to be dismissed, (z) An acceptor or drawer of a bill of exchange who desires j . ,^jqjj._ on an interlocutory application to restrain the negociation bill ofey- of the bill on the ground of fraud, must as a rule, pay into «'»auge. Court or give security for the amount thereof. The costs of action, as a rule, abide the event ; and where Costs generally the statement of claim contains unnecessary charges of fraud, ^'^"'^ event; , , ^ , T r- 1 1 ii unnecessary and the Court grants reliet on some other ground, the charges. successful plaintiff will in general be ordered to pay the costs occasioned to the defendant by the introduction of those charges, (a) In many of the reported cases where a Laches. bill has been dismissed solely on the ground of laches, the dismissal has been without costs. It should, however, be borne in mind that since the Judicature Acts, the Court has been more reluctant than formerly to depart from the first of these rules. (z) London, &c., Bank v. Lempriere, L. R. 4 P. C. 57.3; Thomson v. Eastwood, 2 Apy. 242, 243; Lever v. Goodwin, VV. N. (87) 107; Walling- ford V. Mutual Socitty, 5 App. 685. (a) London, &c.. Bank y. Lempriere; Thomson v Eastwood; Lever v. Goodwin, supra. 536 MISTAKE AND CHAPTER XYIII, RKLIEF AGAINST MISTAKE ; — RECTIFICATION OF SETTLEMENTS AND OTHER INSTRUMENTS. Section I. — Jurisdiction ; 'Nature of Relief given. Definition. " Mistake," says Mr. Justice Story, " is sometimes the result of accident, in its large sense ; but, as contradis- tinguished from it, it is some unintentional act, or omission, or error, aiising fj-om ignorance, surprise, imposition, or mis- placed confidence." (a) The question when specific perform- ance may be refused on the ground of mistake has already been treated of in a former part of this work, (h) Ignoranceof A mistake must, in order to be a subject for equitable 1'*^^' relief, be a mistake of fact. A mistake arising from ignorance of law, affords, in general, no ground for equitable relief (c) having regard to the maxim Ignorantia juris neminem excusat. The maxim applies where the ignorance is of a well-known rule of law ; but not necessarily to a case where the igno- rance imputable to the party was of a matter of law arising upon the doubtful construction of a legal document, (d) («) S. 110. (h) See supra, p. 473; as to compensation on the like ground, pp. 465-468. What is a (c) Powell v. Smith, 14 Eq. 85; Allcard v. Walker, 2 Oh. (96) 381. mistake of Upon the question what is a mistake of fact, see London, &c., bk. v. Bk. fact. of Liverpool, i Q. B (itf,) 7. {d) limuchamp v. Winn, L. R. 6 H. L. 234 ; DanieU v. Sinclair, 6 App. 181, P. C. ; Rogers v. Ingham, 3 Ch. D. 351 ; Ex parte Sandys, 42 Ch. Div. 113. A -ting on this maxim, nionej' paid under a mistake (jf law cannot in general be recovered; but thi- Court will not all )\v this rule to be acted upon by one of its own officers, if a payment has been mado to him through any sufh mistake : Be Brown, 32 (Jli. D. 597. As to the right to Jlonev paid to recover money paid by mistake to the wrong pi-rson, sen Colonial Bank v. wrong person. Exchange, &c. Bank, 11 App. 84, P. C. As to money paid under compulsion of Law,' see Moore v. V. of Frtlham, 1 Q. B (95) 399. Loans to As to the liability to refund the amount of lo.ms, by mistake of law building repaid to persons who had muile advances to a building society wnicli had society. no power to lioriow, f-ee Blackburn &c. Society v. Cunliffe, 29 Ch. Div. 902. Bankruptcy or -^'^ ^'^ ^''^ right < f a creditor to amend, on the ground of mistake, his 'A/indins£-up proof in bankruptcy or the winding-up of a company, slb lie Henry Lister ^ ^' & Co., 2 Ch. (92) 417 ; Be Newton, 2 Q. B. (96) 403. RECTIFICATION OF SETTLEMENTS, 537 Private right of ownersliip of property is a matter of fact ; Matter of but it may be the result als(j of a matter of law. {da) ownership. A judgment or order iu an action prcmouuced or made Judgment, &c., by consent, and intended to carry into effect an agreement "H^'^'n^'l ^*y i. J . T . , . , mistaKC or entered into between the parties, can be set aside on tlie fraud. ground of mistake, fraud, or on any other ground on which Mistake as to the agreement itself could be set aside. A written contract •^''^ meaning of cannot be set aside merely because one of the parties t ) it put an erroneous construction on the words in which it was expressed; but this principle does not apply to a case wliere the mistake by one of the parties as to the meaning of the words used has been induced, however innocently, by the other party. If the parties are not ad idem as to the subject niatter of the contract, there is no real agreement between them. (d&) The Court has ]iower to discharge, on motion, an order Mo.le of set- made on an interlocutory application by consent, and duly t'°g '■**''••' passed and entered, when it is proved that the consent was "^^ S^ien , given under a mistake, and thongh that mistake was on one side only. (c?c) The rule would appear to be different in the case of a judgment pronounced at the trial. The Court of Chancery had power to rehear causes after the decree had been passed and entered ; but the High Court has no such power since the Judicature Acts, (dd) It would appear that a judgment which has been passed and entered can now only be rectified (1) under 0. 28, r. 11, whereby clerical mistakes or errors arising from any accidental slip or omission may, at any time be corrected by the Court or a On the question of raisfcike by a t -stutor in describinj^ the object of a Afi^toUn ^f gift, etc., see Re Ingle, 11 Eq. 578 ; Farrer v. St. Catherine's Colleqe, 16 ib. !„ \ \^,. '„ , j- 19; Charter v. C, L. E. 7 H. L. 3(3i; Re Boirman, W. N. (91) ■l'.t2; ^e object of^i ft Ashton, P. (92) 83; of mistake by a marritMi woniiin, as to her separate ^^^ •— ma^rrie'd e>tate, Bateman v Fuber, 1 Cii. C9S) 144, C. A., cited >!upra, p. 224; and ,y („'„'.,,, ._!. of mistake by a testator as to the number of objects, Newman v. Fiercy, separate estate 4 Ch. D. 41 ; Re Emery, 3 Ch. D. 3U0. ' ' * As to the distinction between a case of mutual misconneption of law Wstinction be- and of misrepresentation, see Eaqlexfield v- M. of Londoudcrri/, 4 Ch. D. tween mistake tJ93. affirmed by D. P.. 38 L. T. 303. and misrepre- idn) AUcard v. W(dker, 2 Ch. (96) 381. sentation. (db) Wilding v. Sanderson, 2 Ch. (97) 534, C. A. ; Cule v. Langford, 2 Q. B. (98) 36. {dc) Wilding v. Sanderson, 2 Ch. (97) 534. See also Lnwrie v. Lees, 7 App. Cas. 34; Tucker v. New Brunswick, &c., Co., 44 Cii. Div. 250; Mihon V. Carter, A. C. (93) 63j. In Shipwright v. Clements, 38 W. R. 746, a decree was rectified after more than nineteen years. {dd) Wildin{f v. Sanderson, supra. 638 MISTAKE AND When relief granted ;— vendor and purchaser. Moiety only included in d«ed. AHcard v. Walker;— setting aside ci)mi)roniise etKected by order of Divorce Division. Representation by infant on marriage. Judge on motion or summons, and (2) where the Court finds that the judgment, as drawn up, does not correctly state what the Court actually decided and intonded. (de) The rule has been repeatedly laid down that to enable the Court to grant the relief sought, the mistake must have been common to both parties ; (e) or it must have been known only to one party, and there must have been some fcaud or surpiiae by him on the other and iguorant party ; (/) e.j/., where a deed was executed with the intention of conveying the entirety of an estate, but by mistake common to both parties, only a moiety was included, the deed was ordered to be rectified, so as to pass the entirety. (^) In Allcard v. Walker, (g) a consent order was, on the 24th April, 1894, and after the dissolution of the marriage between A. and B,, made by the Divorce Division, on the petition of A., the husband, varying the trusts of a settlement, by directing payment of certain annual sums to him, and the only child of the marriage. B., the wife, afterwards brought an action in the Chancery Division, claiming a declaration that certain property which, upon the petition had, by mistake, been assumed by all parties to be bound by the settlement, was not so bound. The Court made a declaration to th^t effect; but upon the terms that any application to the Divoi'ce Division, for a further settlement npon the husband and child, should be dealt with in all respects as if it had been made before the 24th April, 1894, and was being considered by the Court on that day. It has been held that the rule above stated does not apply to the case of a contract which has been entered into between parties in the relation of vendor and purchaser, or of lessor and lessee, when it is in the power of the Court to replace them in their original position. (/*) But where, on Option be- tween rectifi- cation and re- scission. (de) Ainsworth v. Wilding, 2 Ch. (i<6) 673. (e) Sutherland v. Meathcote, 1 Ch. (92) 486 ; Cooper v. Phibbs, L. R. 2 H. L. 149 ; Bulky v. B., 9 Ch. 739; Soper v. Arnold, 14 App. 429 ; Sella V. S., 1 Dr. & Sm. 42. (/) Barroio v. Isaacs, 1 Q. B. (91) 427, C. A. ; Jennings v. J., 1 Ch. (98) 39U. (/) Wliite V. IF., 15 Eq. 247. (g) 2 Ch. (96) 369. (/i.) Harris y. Fepperdl, 5 Eq. 1 ; Paget N.Marslmll, 28Ch.D.255._ See also the authorities cited in this latter case, and Bloomer v. Spittle, 13 Eq. 427. Id Paget v. Marshall more property was included in a lease tiiau the plaiutiff, the lessor had intended ; and it was held that he was entitled RECTIFICATION OF SETTLEMENTS. 539 the marriage of a female infant with the sanction of the Court, it was the intention of the parties that all her property should be settled except £13,000, and by mistake the deeds settled for that purpose under the direction of the Court, purported to include a moiety of certain entailed freeholds which had in fact been taken by the London School Board under its compulsory powers, instead of the funds in Court representing the sale moneys thereof, it was held that, as the marriage was to be deemed to have taken place on the faith of a representation that she was entitled to the moiety of the freeholds in question, slie was bound by that representation after she came of age. (i) In like manner where a person has purchased an estate Purchase of a which is in fact his own, he is entitled, even after completion, person's own to have the transaction set aside, and to compel the vendor to refund the purchase money. (/) So also where a release Release. has been given by mistake, it is liable, as already stated, (Jc) to be set aside. Tn a modern case a son tenant in tail in remainder shortly Resettlement. after attaining twenty-one, joined with his father, the tenant for life, in resettling the family estates. The son was influenced in executing the resettlement by a repre- sentation made by his father that a charge of £5000 for portions was not a subsisting charge on the estates, but was a charge to take effect only in case the father should so direct, and a release by the father of the supposed power to charge contained in the resettlement was the principal consideration for its execution. The charge being in fact a subsisting charge, the resettlement was set aside, as founded on mis- take, although the misrepresentation was made innocently. (I) to have the lease set aside ; but with an option to the defendant to have it rectitied instead. See also Jennings v. J., supra. (0 Mills V. Fox, 37 Ch. D. 165. See also Sloue v. Godfrey, 5 D. M. & G. 76; Lovett v. L., 1 Ch. (98) 82. 0") Jones v. Clifford, 3 Ch. D. 790. (Jc) See stipra, p. 49. (l) Fane v. F., 20 Eq. 698. In Cochrane v. Willis, 1 Cli. 58, it was held that an agreement concerning land entered into by a tenant in tail with the assignee in bankruptcy of the tenant for life under a cnnnnou mistak-e that the tt-naut for life was alive, when he was in faft dead, could not be enforced, there being under the circumstances, a fiiilure of consideration. As to the title to land by mistake included in an award under the Inclosure Acts, luclosure Acts, see Jaromh v. Turner, 1 Q. B. (92) 47. As to mistake in y , . the description of pro|)erty comprised in an agreement, see Magee v. /' *,"• '""'"* Lavell, L, R. 9 C. P. 107 (falsa demondratio). »i>uuo. 540 MISTAKE AND Assignment withiiut lessor's con- sent. Rescission. When original status cannot be restored. Wiien settle- ment, etc., rec- titied. Evidence, Where a lease contains a covenant not to assign or under- let without tlie lessor's consent, the omission to ask for the consent is not a mistake in respect of which the Court will grant to the les.see equitable relief against forfeiture for breach of the covenant, (m) When a contract or other transaction has been entered into by a mistake of such a kind that if the actual facts had been known to the parties thereto, the contract would not have been entered into, the proper remedy is to order the contract or transaction to be set aside. But this will not be done if it is impossible to restore the parties to their original situation, (k) When by mistake, an agreement, settlement or other in- strument inter vivos did not express the real intention of the parties, the Court of Chancery would have rectified the same, if it were possible so to do without injustice to the parties other than the plaintiff; and since the Judicature Acts, the High Court has the like power ; (o) but it requires very clear and distinct evidence to ^how that there was some intention at the time when a settlement was executed different from that which appears on the face of the settlement itself. Unless this is so, the Court will not, many years after its execution, alter the same on mere parol evidence, uncontradicted because there is no one to contra- dict it, and because one of the paities afterwards desires that it should not stand as it was executed. (_p) In cases of this kind it is necessary to prove not only that there has been a mistake, but also that the deed wlien altered as pro- posed, will be in conformity with the intention of all the parties at the very time of its execution. A denial by one of the parties that the deed as it stands was contrary to his Rectification and specific peri'ormance. (m) Barroiv v. Isaacs, 1 Q. B. (91) 427, C. A. ; see supra, p. 275. (n) But .see supra, p. 512. In Okill v. Whittaker, 2 Ph. 340, lease- hold jn-operty was sold for the residue of a terra of which both parties at the time supposed that eight years only were unexpired. It afterwards appeared fiat twenty years were in fact unexpired at the time of the sale. A bill filed by the vendor after ten years' occupation by the purchaser to have the latter declared to be a trustee of the term for the twelve addi- tional years, was dismissed with costs. See also Jennings v. /., 1 Ch. (98) 390. (o) As to the right in one and the same action to rectification of an agreement, and for .specific performiince of the agreement as rectified, see supra, p. 4.58. (p) Tucker v. Bennett, 38 Ch. Div. 15 ; Bonhote v. Henderson, 1 Ch. (95) 742 ; 2 ih. 202, C. A. BECTIFICATION OF SETTLEMENTS. 541 intention at the time, will have considerable weight with the Court, (g) In one case, however, (r) a post-nuptial settlement was rectified on the evidence of the plaintiff only. But an agreement or transaction may be supported as Family a family arrangement, if it has been fairly entered into '""'•'"g'^"^*^" • for the piirpose of saving the honour of a family, and even though the parties have gi'eatly mistaken their rights — especially where it was founded on a question of disputed legitimacy, (s) The transaction cannot, however, stand if Misrepresenta- there has been any misrepresentation or concealment by any cealment. of the parties, e.g., where an agreement had been entered into for the division of the family estate between two brothers the younger of whom disputed the legitimacy of the elder, the agreement was set aside after nineteen years, on the ground that the younger brother had, at the time when the agree- ment was entered into, concealed from the elder the exist- encrt of evidence within his knowledge of a private marriage of their parents, (t) When the deed or other instrument by which a family Deed executed arrangement is intended to be carried into effect has been ^7""^'^'^''^''^'" . . only. executed or signed by some only of the parties interested, but upon the assumption that it would be executed or signed by all the parties, then as it will not be binding on the parties who have not executed or signed, neither will it be binding on any of the other parties, (u) The Court has sometimes set aside a voluntary settlement Voluntary as having: been executed without due consideration and s'-'ttlement ;— » executed with- independent advice, (v) In a somewhat recent case (ic) a out due con- deed was executed by a young man of improvident habits, s'Jeration, etc.; in order to " protect him against himself." By this deed his by improvident property was assigned to trustees in trust for himself for life, with remainder in trust for any wife he might marry for life, with remainders in trust for his issue, and in default iq) Fowler v. F., 4 D. & J. 250. (r) Hanley v. Pearson, 13 Ch. D. 545. Compare also Lovesy v. Smith, 15 ib. 655. (s) Fane v. F., 20 Eq. 705 ; Hoblyn v. H., 41 Ch. D. 200 ; Wilcoclcs v. Carter, 10 Ch. 440. See also Stapilton v. S., 1 Atk. 2, and notes thereto in 1 Wh.'& Tu. L. C. Eq. 223. ' (0 Gordon v. G., 3 Swan. 400. (m) Bolitho v. Hillyar, 34 B. 184. (v) Everitt v. E., 10 Eq. 405. As to the modus procedendi for setting: Voluntary asiile a voluntary settleiueut made by a lunatic before the date of the settlement inquisition, see Re Gordon, 10 Ch. 192. made by (u)) James v. Coucliman, 29 Ch. D. 212. lunatic. 542 MISTAKE AND Abseuce of ))ower of revo- cation. Marriage settlements. Duty of trustees to support volun- tary settle- ment. Judgment de- claring con- sti'uctiou of instrument. Confirmation and ac- quiescence. or failure of issue, in trust for his paternal next of kin. It ■was held that a deed of this kind was proper to be made, and that though the settlor iinderstood the terms of this settlement, yet as his attention had not been drawn to the fact that he miglit have had a power of disposition over the property in default or failure of issue, such a power ought to have been given, and the settlement was oidered to be rectified so as to read as if such a power had been inserted therein. The mere fact that a deed of this kind does not contain a power of revocation is not, per se, a sufiBcient ground for setting aside or rectifying the same, (cc) The principles above stated as to voluntary settlements do not apply to provisions in a marriage settlement in favour of vulunteers ; nor is it in general essential tliat a daughter living on affectionate terms with her father at the time of her marriage should, in the preparation of the settlement, have any independent advice beyond that of the family solicitor who prepares the same, (j/) When proceedings are taken to set aside a voluntary settlement, it is, in general, the duty of the trustees to !supj)ort the same ; (a) but they should submit to act as the Court may direct. After money has been paid under a judgment founded on the construction of an agreement, an action cannot success- fully be brought to rectify the agreement, on the ground that such conbtniction was contrary to the intention of the parties, (b) The light to relief on the ground of mistake may be lost by the confii'mation of the ti'ansaction in question, after the party entitled to complain has become acquainted with the Propriety of (x) Phillips v. Mullinqs, 7 Cli. 248 : Tlall v. H., 8 Ch. 430. In the provisions of former case Lord Hatherley, L C, said, " All that the law requires in a deed settlement. of this descrijition is tliat it should be effective, and should not contain any extraordinary clauses, unless those clauses are shown plainly and di.^tinctly to have been biouglit to the notice of the settlor, and to have Vieen understood by him " ; but in Button v. Thompson, 23 Ch. Div. 281, Jessel, M.R., said, "It is not tlie province of a court of justice to decide on what terms or conditions a man of competent understanding may choose to di>poBe of his propel ty. If he thoroughly understands what he is about, it is not the duty of a court of justice to set aside a settlement which he chooses to execute on the ground that it contains clauses which are not jjroper." The nature of the trusts, etc., of the settlement may, however, afford evidence that the settlor did not understand them : ib. (y) Tucker v. Bmneit, 38 Ch. Div. 1. (a) James v. Couchman, 29 Ch. D. 217. (h) Caird v. Moss, 33 Ch. Div. 22. RECTIFICATION OF SETTLEMENTS. 543 facts, (c) It may also be lost by acquiescence ; but there can be no acquiescence unless where there is knowledge of that which is supposed to be acquiesced in. (d) In a recent case, the plaintiffs, a banking company had, before the action, appeared (as mortgagees) on an applic;ition in another action by debenture holders against a company in liquida- tion, to which they were not parties, and had consented to a sale by the liquidator (who had been appointed receiver in that action,) of ceilain looms which had the appearance of being loose chattels. After the sale, the banking company discovered that the looms were in fact fixtures included in their mortgage, but had been detached by persons employed by the liquidator. Williams, J., ordered the sale moneys to be paid to the plaintiiFs, and his judgment was affirmed by the Court of Appeal, (e) The right to relief may also be lost by laches or delay. (/) Ladies. The amount of delay sufficient to bar the right depends upon the facts of each particular case. ((/) Section II. — Parties, Practice, and Costs. The parties to the action will be, as a rule, the trustees, Geiioral rule if any, of the instrument in respect of which relief is claimed, '"^^ *" parties. and the persons beneficially interested thereunder, or who may be affected by such relief, and other, if any, the persons who were parties to the instrument, and who are living when the action is commenced. The judgment in an action for the rectification of a Practice, settlement or other written instrument generally takes the form of a declaration that the instrument in question was executed under mistake, and directs that the same be rectified in thu manner specified, and also that the judgment be indorsed on the instrument. This has been held sufficient l-«g'i' estate, to pass the legal estate in real property, where the circum- ytances so require. (^) (c) Jarratt v. Aldam, 9 Eq. 463 ; Bloomer v. Spittle, LS ib. 427. (d) Beauchamp v. Winn, L. R. 6 H. L. 249 ; La Banque Jacques- Cartier v. La Banque d'£pargne, 13 App. 111. (e) Huddersfield, &c. Co. v. Lister, 2 Ch. (95) 273, C. A. ; compare Wilding v. Sanderson, 2 Ch. (97) 534, C. A. (/) Huddersfield, Co. v. Lister, supra ; Stone v. Godfrey, 5 D. M. & G. 7G-. Ig) See supra, pp. 50, n., 531 ; Gordon v. G., 3 Swan. 400, explained Division in supra. The Division in which the action should be commenced will which action follow the same rule as in cases of fraud : supra, p. 507. commeuced. {i) White V. W., 15 Eq. 247; Hanley v. Pearson, 13 Ch. D. 545. In these cases Bacon, V.-C, offered to initial the alteration ; but said he Considered it was not necessary so to do. 544 MISTAKE AND Obvious omis- sion ; supply- ing words. Lease ; length of" term. Fund paid in under Trustee Act, 1893, s. 42. General rules as to costs. Discretion of Court. The Cemrt may, by mere decLiration, supply words hy obvious mistake omitted in a will, tlioiijj,h the cfl'ect uiay be to give an estate to a person to whom no estate has been given by express words, (y) A correspnnding course has been adopted in construing a lease in which a clerical error had, by an obvious mistake, been made in the length of the term, (k) The Court has power, on the hearing of an application for payment out of Court of a fund paid in under s. 42 of the Trustee Act, 1893 (c. 53), to make a declaration as to the validity or invalidity of any instrument under which the petitioner claims, without any action being commenced to set aside or rectify the same, (^kk) The costs of an actiim fur relief against the consequence of mistake depend on the conduct of the parties ; but are in general payable by the person who has been the cause of the litigation. Therefore when the action is rendered necessary f^olely in consequence of a defendant's refusal on request, to rectify the mistake, such defendant will in general be ordered to pay the costs. When the mistake is entirely owing to ihe conduct of the plaintiff, he will, as a rule, be ordered to pay the costs of all parties to the action. (Z) Where no blame is imputable to any of the parties, the Court will in general, upon granting the relief claimed, order the costs to be paid out of the corpus of the settled property, (w) The rules stated above are subject to the discretion of the Court to deprive a successful party of his costs, in case of neadiscence or misconduct. But in a recent case where a resettlement of family estates by a son tenant in tail was, in an action by the son against his father, held to be good subject to the father (one of the defendants) giving up a benefit which he took thereunder, the father was simply disallbwed his costs ; (n) and an action has sometimes been (/) Be Northen, 28 Cli. D. 153 ; Mellor v. Daintree, 33 Cb. D. 198. (h) Bnrchell v. Clar]:, 2 C. P. Div. 88 (A-A-) Lewis v. Hillman. 3 K. L. C. 632; Be Slater, 11 Ch. D. 235; Re Bird, 3 ib. 214; Be Be La Tourhe, 10 Fq 599. (I) Harris v. Pepperell, 5 Eq. 5 ; Bascotnh v. Bechwith, 8 Eq. 109 ; Clayton v. Leech, 41 Oh. Div. 104 ; Paget v. Marshall, 28 Ch. D. 267. (m) Stock V. Vining, 25 B. 235; but see Tomlinson v. Leigh, 14 W. R. 121, where the costs of infants claiming rectification of tlie main- tenance clause in a settlement, were ordered to be paid out of the income. (n) Hohlyn v. H., 41 Ch. D. 200. BEOTIFICATIO^ OF SETTLEMENTS. 545 dismissed without costs, where it has failed solely on the ground of laches, (o) When a settlement is maintained on the trial of an action Costs of to set it aside on the aronnd of mistake, the trustees are in ^^'^f^*^^^ "■ ^" ~ ' settlement general entitled to be paid their costs out of the settled maintained ; property, or so much thereof as they cannot obtain from the plaintiff. In some cases the Court has given the when set aside. trustees whose conduct has been free from blame, their costs, charges, and expenses out of the settled property, when the settlement has been set aside, (j?) This would appear to be the present rule of the Court ; (q) but there has been some little conflict of authority on this point, (r) If however the trustees should be ordered to pay the plain- No right of tiff's costs of the action, they will have no right of appeal on c^s'ts^n such the question of costs only ; becaui-e they can only be con- case. sidered trustees, if the settlement is established, (r) (o) Jarratt v. Aldam, 9 Eq. 467. (p) Everitt v. E., 10 Eq. 405. The trustees were allowed tlieir costs ia the above-mentioned cuse of James v. Couchman, 29 Ch. D. 212. (q) Compare Be Carter, 1 Ch. (97) 781, C. A., approving of lie Holden, 20 Q. B.D. 43, cited supra, p. 23. See also Merry v. Fownall, 1 Ch. (98) 306. (r) See Button v. Thompson, 23 Ch. D. 282. 2 N 546 ACCIDENT. CHAPTER XIX. Definition. Apprentice, &c. ; — return of premium. accident; — LOST instruments; — defective execution of a POWER ; — FRAUD ON A POWER. Section I. — Jurisdiction in cases of Accident generally. The jurisdiction of the Court of Chancery to grant relief against accident is of somewhat ancient date. Accident is, for this purpose, defined by Mr. Justice Story (a) as includ- ing "such unforeseen events, misfortunes, losses, acts, or omissions, as are not the result of any negligence or mis- conduct in the party." The Court of Chancery would, under this head, grant relief to an apprentice or articled clerk whose master became bankrupt before the expiration of the term of apprenticeship or articles, by awarding to him the return of a proportionate part of the premium paid by him. The Court or a Judge exercising jurisdiction in bankruptcy has now this power under s. 41 of the Bankruptcy Act, 1883. But it was not long since held by Pearson, J., (6) that there was no such equit}^ in favour of an articled clerk whose master had died during the term of the articles. In other respects the jurisdiction now under consideration was practically confined to the granting of relief in the cases of (1) lost instruments, and (2) the defective execution of powers. This relief would only be granted in cases where a Court of Law could not give adequate relief, and where the party seeking such relief had a conscientious title thereto. When, however, the Court of Chancery had once acquired jurisdiction in such cases, it, as a rule, continued, notwithstanding that an adequate remedy was afterwards provided by an extension of the jurisdiction of the Common Law Courts. Cases in which 'inhere are many other cases in which no relief against no relief given; accident will be given. Where a person contracts to do a — destruction of subject (a) S. 78. matter of (b) Ferns v. Carr, 28 Ch. D. 409. contract. • . JURISDICTION. 547 particular thing, he will not, as a rule, be entitled to escape from his liability on the ground of accident, (c) e.g. where a person contracts to build a house, and to make it fit for occupation by a given day, and he is prevented by storm or tempest from fulfilling his contract, such an accident will afford no defence to an action for breach of the contract. So also if a contract has been entered into for the sale of real estate, and before the time fixed for completion, the property is burnt down, the loss falls upon the jDurchaser, (d) In like manner, where a contract of bargain and sale is entered into, immediately transferring the property in specific chattels which the vendor is to deliver at a future day, then if the chattels, without the vendor's fault, perish in the meantime, the purchaser must bear the loss, (e) On the other hand, in the case of a contract for personal Personal ser- service, or to do an act requiring personal skill, during a ^'"^^ °'' '*'^^^'- given period, the parties were assumed at Common Law as well as in Equity to have entered into the contract on the footing that such service might be prevented by the death or personal incapacity of either party, and in such case, a defence that by reason of the intervention of an act of God, one of the parties was prevented from performing the contract was good, though the contract were absolute and unconditional in its terms. (/) So also where A. agreed with B. to give Surrey him the use of the Surrey Gardens and Music Hall, on Gardens Case. certain specified future days, at a rent of £100 a day, it was held that there was an implied condition that the Gardens and Hall should continue to exist, so as to permit of their being used for the entertainments for which they were hired, and that in consequence of the Hall having been destroyed by fire in the meantime, both parties were excused from the performance of the contract. (, 1882, ss. 6-13 ; 1890, s. 10. Powers must be exercised bond fide. New lease ; surrender of old one. This observation applies to the case of an instrument executed abroad, notwithstanding that by s. 1 of the Statute 24 & 25 Vict. c. 114 (commonly called Lord Kingsdown's Act), every will or other testamentary instrument made out of the United Kingdom by a British subject, is to be held to be wtll executed for the purpose of being admitted to probate in England, if the same be made according to the forms recjuired by the law of the place where the same was made, or of the place of the domicil of the decea.sed, or by the law of his domicil of origin. Komilly, M.E., indeed decided that a power to appoint by will simply, might be exercised by any will which, according to the law of this country, would be valid, even though it did not follow the forms of the Wills Act; but the contrary was decided by Kay, J., in 1883, (u) and recently by Kekewich, J. (v) The terms of s. 9 of this Act above mentioned must be in all respects complied with, whether the will or other testamentary instrument be executed in England or elsewhere. The Court of Chancery had, and the High Court still has, jurisdiction to aid the defective exercise of powers of leasing : (lo) and by the Act 12 & 13 Vict. c. 26, amended by 13 & 14 Vict. c. 17, and partly repealed by the Statute Law Eevision Act, 1875 (c. 66), provision is made for granting relief against defects arising through mistake or inadver- tence on the part of persons granting such leases, or through ignorance on the part of the lessees of the title of persons having valid powers of leasing, (x) Ss. 6-13 of the Settled Land Act, 1882 (c. 38) contain full powers of leasing by tenants for life and other persons having limited estates only. These powers are somewhat restricted by s. 10 of the Act of 1890, so far as relates to the principal mansion-house, if any, on the settled land ; and by s. 31 of the Act of 1882 all contracts by such persons are binding and enforceable against and by their successors in title. These powers must be exercised bond fide, having regard to the rights of all parties interested in the settled property, (y) (u) Be Kirwan, 25 Ch. D. 373. (v) Hummel v. H., 1 Ch. (98) 642. (w) Shannon v. Bradsireet, 1 Scli. & Lef. 52. (x) See Be Hallett, 24 Ch. D. 624 ; Gas Light, &c., Co. v. Towae, 35 ib. 519 (y) Sutherland v. S., 3 Ch. (93) 169 ; Chandler v. Bradley, 1 Ch. (97) 315. Upon the quefatiou of surrender of an old lease upou the granting of a new one, see Wallis v. Hands, 2 Ch. (93) 76 ; and as to the time when DEFECTIVE EXECUTION OF A POWEB. 559 Where a lease granted under a power to grant leases in " Best rent ; " possession at the best rent, contains a covenant by the —covenant for lessor for renewal, the covenant can only be enforced if the want of title ; stipulated rent is the best rent, at the time when perform- — damages. ance thereof is claimed. If, however, the rent is not then the best rent, the covenantor will not, as a rule, be entitled to damages for the breach of covenant, as his inability to perform the covenant arises solely from the infirmity of his title. (2) It would appear that the defective execution of powers Powers created created by enabling statutes will not be aided, (a) by statute. In Cockerell v. Cholmeley, (h) the trustees of a will, having Cockerell v. a power of sale over an estate with the consent of the Cholmcleu; — tenant for life, sold the same for a given sum, without withour the timber standing thereon, which was sold by the tenant timber. for life, he receiving the purchase money thereof, under a mistake of law. The House of Lords (affirming the decision in the Court below) held that the j)ower was not properly executed either at Law or in Equity, although the tenant for life subsequently recouped the money which he had received, and the same was duly invested according to the directions of the will. This was considered to be a somewhat hard case, and by Lord 22 & 23 Vict. . St. Leonard's Act, 1859 (c. 35), s. 13 power was given to ^ J^''}_\^J'' the Court of Chancery to relieve against any sale made bond to relieve Jide, and under the like circumstances as last mentioned, against invalid upon payment of the full value of the timber growing thereon, or any other articles attached thereto, and the settlement thereof under the direction of the Court for the benefit of the parties entitled thereto. This power is now exerciseable by the Chancery Division where the justice of the case so requires, upon the application of the purchaser of the property, or a person claiming under him ; and he must pay the costs of the application as between solicitor and client. Moreover, by s. 16 of the Settled Estates Act, Settled Estates 1877 (_c. 18), the Court has power to authorize a sale of the -^^t, 1877, s. the Statute of Limitations begins to run as between a lessor and his Statute of underlessees, or persons claiming under them, Ecclesiastical Commrs. v. Limitations • Treemer, 1 Ch. (93) 166. underlessee. (z) Gas Light, &c., Co. v. Towse, supra, p. 486. (a) Farwell, p. 343 ; Moore v. Clench, 1 Ch. D. 447. (b) 1 CI. & F. 60. 560 DEFECTIVE EXECUTION OF A POWER. Sale of lands ]-eserving minerals. Trustee Act, 1893, s. 44, 1894, s. 3. ■whole or any part of any settled estates or of any timber (not being ornamental timber) growing thereon, in case it shall deem it proper and consistent with a due regard for the interests of all persons entitled under the settlement so to do. (c) It was decided by Sir John Eomilly, M.E., in the year 1861 (d) that a power of sale and exchange did not authorise trustees to sell lands with a reservation of the minerals. This state of the law was remedied by the Confirmation of Sales Act, 1862 (c. 108), since repealed by the Trustee Act, 1893 (c. 53), by s. 44 whereof, 'as amended by the Act of 1894 (c. 10), s. 3, power is given to the High Court to sanction a sale, exchange, partition, or enfranchisement of land by a trustee, or any other person with an exception or reservation of any minerals, or the disposition of the minerals separately from the residue of the land, (e) Section IV. — Fraud on a Power. . The subject of the present section ought, perhaps, according to a strictly logical arrangement, to have formed part of Chapter XVII. on fraud generally; but it appeared to the Author that for some of his readers, it woiald be better that it should be dealt with after treating of the jurisdiction of the Court to aid the defective execution of a power. Donee must A person having a power of appointment must exercise exercise power the same houd fide, for the end designed. Otherwise the appointment is corrupt and void. The equitable rule was thus laid down by Lord Keeper Henley in the old and leading case of Aleyn v. Belchier ; (/) and such is still the law. In this case, a person having a puwer of jointuring, shortly after his marriage, exercised the same in favour of his wife, but subject to a secret agi cement with her that she should only receive part thereof, as an annuity for her own benefit, and that the residue thereof should be applied in p^iyment of the appointor's debts. The ajipointment was set aside, as being a fraud on the power. (c) As to timber ripe for cuttitie;, see supra, 'p. 306. {d) Buckley v. Howell, 29 B. 546. (e) See also s. 19 of the Settled Estates Act, 1877 (c 18), and s. 17 of the Settled Land Act, 1882 (c. 38) ; Re D. of Newcastle, 24 Ch. D. 129 ; lie Hirst, 45 ib. 263. (/) 1 Eden 132 ; 2 Wh. & Tu. L. C. Eq. 308. bo7id fide. Aleyn v. Belchier ; — jointure. FRAUD ON A POWER. 561 Anotlier example of a fraud on a power is afforded by the Appointment old case of Hinchinhroke v. Seymour, (h) where a father, j.° jj^ ^ ^ ^ having power to charge real estate with the sum of £10,000 in favour of his daughter (to which she would, in default of appointment, have become entitled on marriage, or attaining majority, and out of which she would have been entitled to maintenance, in the meantime) made an appointment to her of that sum when she was only fourteen years of age, and in consumption, so that the same might be raised immediately, with the view of obtaining the money for himself, which he attempted to effect upon the daughter's death, in the following year, upon obtaining letters of administration to her estate. The appointment was set aside as a fraud on the power. The report of that case is not quite accurate; but the above statement is in accordance with the facts, as explained by Jessel, M.E. (after having sent for and examined the record) in a modern case of Henty v. Wrey. (i) In the former case, ffenfy v. Loid Thurlow, L.C., said that it was contrary to the nature to fi^'J^"^ of such a charge to have it raised before it was wanted. In when portion Henty v. TFre?/, however, that dictum was disapproved of ; ^^^'^ ^'®**- and it was held that where, by the terms of a power, the donee is to fix the time at which portions shall vest, there is no rule of law which prohibits the same from being raised, in the event of the child dying under twenty-one and unmarried. In this case, an appointment made by deed of the sum of 10,000Z., in favour of three daughters, the youngest of whom was only one year old, and two of whom died in infancy, and so as to vest their respective shares in them immediately on the execution of the deed, was, under the circumstances, held to be good, especially as there did not appear to be anything leading to an inference that any of the appointees were likely to die at an early age, and having regard to the consideration that if the father had died, without having made any appointment in their favour, they would have been unprovided for. Lindley, L.J., in his judgment, laid down the following rules as being the result of the existing authorities: "(1) That powers to appoint Power to portions charged on land ought, if their language is doubtfuL appoint por- o ' o o » tions charged to be construed so as not to authorize appointments vesting on laud. " those portions in the appointees, before they want them, that (/t) 1 Bro. C. C. 39"). O; 21 Cli. Uiv. 332. 562 FRAUD ON A POWER. Attempt to. benefit stranger. Difference between inten- tion and motive ; — capricious appointment. Topham v. D. cf Portland, is before tHey attain twenty-one, or (if daughters) marry. (2) That where the language of the power is clear and unambiguous, effect must be given to it. (3) That where, upon the true construction of the power, and the appoint- ment, the portion has not vested in the lifetime of the appointee, the portion is not raisable, but sinks into the inheritance. (4) That where, upon the true construction of both instruments, the portion has vested in the appointee, the portion is raisable, even although the appointee dies under twenty-one, or (if a daughter), unmarried. (5) That appointments vesting portions charged on land in children of tender years, who die soon afterwards, are looked at with suspicion ; and very little additional evidence of improper motive or object, will induce the Court to set aside the appointment, or treat it as invalid ; but that without some additional evidence, the Court cannot do so." The term " fraud on a power " is a somewhat technical term. It includes not only cases in which a corrupt bargain or understanding has been entered into, or has existed, between the donee of the power or appointor and the appointee, but also cases in which an appointment is made for purposes outside the scope of the power ; and under such circumstances, the appointment is liable to be set aside, even if the unlawful appointment has been made without the knowledge of the appointee, or if the appointee be an infant ; {j) and where the appointor is himself the settlor. (7c) It is competent fur the Court to enquire what was the intention or purpose of the appointor, in making any appoint- ment under consideration ; but it cannot, in general, enquire into the motive, e.g., if the donee has power to appoint a fund in favour of his children A. and B., or either of them, and he should, for any reason, however capricious, give the whole to one of them, in preference to the other, there is no rule of Equity to prevent his so doing. But in TopTiam v. Duke of Portland, already cited, the Duke of Portland, by way of preventing a marriage between his daughter Lady Mary Bentinck and a gentleman whom he did not approve of, settled a fund which he had transferred into the names of his son Lord Henry Bentinck and two other persons, upon trust to accumulate the income during his (the settlor's) life, (/) Re Perlcins, 1 Ch. (93) 283; Fe Craioslmy, 43 Ch. D. 615. (h) Topham v. D. of rorlland, 5 Ch. 40. FRAUD ON A POWER. 563 and after liis death, to hold the fund and accumulations upon trusts for his daughters Lady Harriet Bentinck and Lady Maiy, or one of them, and their issue, as the Duke of Port- land for the time being should appoint, and in default of appointment, to pay the income to them equally, during their joint lives, with remainder to the survivor for life, with remainder to the settlor. After the death of the settlor. Lady Mary married the gentleman above referred to; and thereupon Lord Henry Bentinck, who had then become Duke of Portland, by deed appointed, for a limited period, that the income of the entire fund, and the accumulations thereof, should be paid to Lady Harriet, for her own use and benefit, but subject to powers of revocation and new appointment. The appointment was set aside, on the ground that Lady Harriet was a mere passive instrument to enable the appointor to give effect to the wishes of his deceased father, by accumulating one half of the income and preventing Lady Mary from participating therein, and with the intention that the appointor and the other trustees of the settlement might deal with one half of the fund as they might from time to time think advisable — in other words to effect pur- poses of the appointor and his deceased father, not within the scope of the trusts declared by the original instrument. In Rowley v. JEt.^iJ) Wood, V.C, set aside, as a fraud on liowloj v. R.; a power, an appointment made by a father of the sum of — ^■a'"'''^'e i: ^ i- 1^ p f. - n consideration £5000, part of a larger sum of £30,000, m favour of one of for appoint- two only younger children who was living with his mother, "\ent in favour apart from the appointor, in consideration of the mother agreeing to assist the appointor in raising money upon mortgage, by postponing her jointure to the mortgages intended to be made, and which had only been partly made by him prior to his death ; but his Honour upheld an appointment which the father had made of the residue of the fund, in favour of the other younger child, on the day after the making of the appointment of the £5000. The donee of a limited power of appointment may. Knowledge of however, exercise the same in favour of an object of the intention to 1*C SC 1 1 1 c power, though he believes and knows that the appointee will at. once dispose of the property in favour of persons who are not objects of the power. Thus it is quite usual to make an appointment in favour of a daughter absolutely, on her (0 Kay, 242. 2 2 564 FRAUD ON A POWER. Bargain in favour of strangers. Appointment good in part ; — rejection of part ex ahundanti. Appointment bad in toto ; — illegal pur- pose ; — severing ; — Re Kirwan. Remoteness. marriage, witli the view of the same being forthwith settled upon the nsual trusts for the benefit of herself, the husband, and the issue of the marriage, (m) Upon this principle, Sir John Romilly, M.R., before the Married Women's Property Acts, upheld an appointment of personal property made to trustees of the settlement, made on the mai riage of an infant daughter to which she and the intended husband were parties, and wherebj' a reversionary interest in a sum of money was settled upon the usual trusts for the benefit of the wife, husband, and children of the marriage. («) If, however, there is a bargain between the appointor and the appointee, that the appointee shall make a disposition in favour of persons not objects of the power, and the Court comes to the conclusion, upon the evidence, that the appoint- ment would not have been made but for the baigain, then the appointment will be set aside, as a fraud on the power, (o) When an appointment is made which is partly good, and partly invalid as amounting to a fraud on the power, then when the Court sees its way to sever that which is invalid from that which is good, then that which is good will be allowed to stand, while the remainder will be declared to be void ; e.g., if a person having a testamentary power of appointment in favour of children, appoints a share by will to a daughter absolutely, but with a superadded direction that the same shall be settled in favour of persons who are not objects of the power, or whose interests would be void for remoteness, and there has been no bargain or under- standing with the appointee, but the appointment is, in other respects bona fide, the absolute appointment in favour of the daughter will be good, and the direction for the settlement of her share will be rejected, as ex ahundanti. (p) If, however, an appointment is made for an illegal purpose, or if the Court cannot sever that which is invalid from that which is good, then the appointment will be bad in toto ; e.g. in He Kirwan, (g) a testator, having two (m) Me Turner, 28 Ch. Div. 216. (n) Fitzroy v. D. of Richmond, 27 B. 186; see Re Turner, supra. (o) Re Crawshay, 43 Ch. D. 625 ; Re Turner, supra. (p) Roach V. Trood, 3 Ch. Div. 429; Re Crawshay, 43 Ch. D 615; Viant V. Cooper, 76 L. T. 768 ; also supra, p. 121 ; and as to remoteness, pp. 57, 120. (q) 25 Ch. D. 873. See also Re Perkins, 1 Ch. (93) 283 ; Re Crawshay, supra. FRAUD ON A POWER. 565 children, a son and a daughter, made by will an appoint- ment which was held to be good, per se, of the entire fund, in favour of the daughter. By virtue of a French settle- ment, he subsequently appointed the whole fund to the same daughter, reserving to himself a power disposing of a life interest in a part of the fund, in favour of his second wife; and by a codicil subsequently executed, after re- citing arrangements between himself, his daughter and her husband, on the marriage, that his second wife should have such life interest, he in substance appointed that the daughter and her husband should have the whole of the fund, in case they should give effect to the arrangements. The appointment was set aside by Kay, J., on the ground that these arrangements involved a threat to revoke the will, in case they sbould not be carried into effect, and that consequently the appointment made by the will became thereby vitiated, and amounted to a fraud on the power, though it was not originally open to objection. Where the result of an appointment and other transactions Appointment taken together show no intention on the part of the ap- ^°/ \]^^ benefit 01 3.W. D^rtl€S ' pointer to obtain an exclusive advantage to himself, but only an intention to improve the whole subject-matter of the appointment for the benefit of all the objects of the power, then the mere fact that the appointor thereby obtains some advantage to hiiiiself, will not render the appointment frau- dulent or void. On this ground Lord Romilly, M.R., held that an appointment and resettlement of real estate, in order to confer upon the appointors a power of leasing which the original settlement did not contain, was good, (r) But it would appear that the mere conferring of a benefit with consent on a person not an object of the power will be good if made °^^° ^^'^_^ bond fide with the approbation of the only object, or of all resettlement, the objects of the power ; (s) and that it is quite competent for all the objects to enter into an agreement among them- selves to confer a benefit upon the appointor, or to agree with him for the resettlement of the property for the benefit of persons who are not objects of the power. Such arrange- ments are sometimes looked upon with jealousy by the (r) Re Huish, 10 Eq. 5 ; see 'also Cooper v. C. 5 Ch. 203 ; Roach v. Covenant to Trood, 3 Ch. Div. 42it ; also observations of Coltun, L.J., in Palmer v. exercise testa- Loclce, 15 Ch. Div. 304, cited supra, p. 160, as to the validity of a covenant mentary to exercise a testamentary power. power. (s) Sugden on Powers, G70 ; Re Turner, 28 Ch. Div. 216. 566 FRAUD ON A POWER to appoint in favour of chilJreD, and of wife. Court; but they will be supported, if tbey are bond fide, and especially if they have been entered into by way of family arrangement, (t) Distinction When an appointment in favour of one of several children between power jg liable to be Set aside as a fraud on the power, it is, of course, set aside in toto, as being in fraud of the other objects of the power, or upon the persons who would have taken in default of appointment. But in the case of a power of jointuring, the wife is the only object; and if an appoint- ment is made in her favour, upon a corrupt bargain, the transaction amounts to a fraud only upon the donor of the power, or those who claim under him. In Aleyn v. Belchier, (%) the Bill only claimed relief in respect of so much of the jointure as was to be applied in payment of the husband's debts ; and it contained a submission to pay the remainder. It was decided in several old cases, that in this respect, there was a difference between a power of jointuring and other powers. In Boicley v. B., (v) Wood, V.C., quotes the follow- ing words of Lord St. Leonards in the seventh edition of his work on powers, namely, " it is now too late to have that principle as to jointures changed." It should, however, be borne in mind, that in a case like that of Aleyn v. Belchier, non constat that the appointment would ever have been made at all, if the corrupt bargain had not been entered into. In a recent case before Kekewich, J., («;) a husband, living apart from his wife, under a power for that purpose, appointed to her a jointure of £200 a year pursuant to an agreement signed by her that she should pay £60 a year, part thereof, to a stranger with whom he was living. The Court being satisfied that the appointment would not have been made at all, but for the corrupt agreement, and that the power had been used merely as a piece of machinery to benefit the stranger, set aside the appointment in toto. It would appear that an appointment will not be con- sidered to be a frand on the power on the mere ground that it contains a forfeiture clause in the event of the appointee changing his or her religion, (a;) Forfeiture on changing religion. (0 Davis V. Uphill, 1 Sw. 129 ; Wright v. Goff, 22 B. 207 ; supra. (w) 1 Eden, 132 ; 2 Wh. & Tu. L. C. Eq. 308. (u) Kay, 260. (m>) Whel(m v. Palmer, 30 Ch. D. 648. (x) Wainwright v. Miller, 2 Cb. (97) 255. Be Turner, FRAUD ON A POWER. 567 The principles now under consideration do not apply to Release and the release of a power. There was formerly some doubt p^^^j. in this respect ; but it was removed more than fifty years ago ; and such a release is now, prima facie, good, even independently of s. 52 of the Conveyancing Act, 1881 (c. 41), whereby a person to whom any power whether coupled with an interest or not, is given may, by deed, release, or contract not to exercise the power ; and by s. 6 of the Act of 1882 (c. 39), such a power is capable of being disclaimed, and thereby becoming incapable of being exer- cised by the person disclaiming. Both these provisions apply to deeds created before as well as subsequently to the Acts. In Be Badcliffe, (y) a father, tenant for life under Be EadcHffe. his marriage settlement, had power to appoint among his children a fund which, in default of appointment, was to go to the children equally, and to be vested at twenty-one or marriage. There was issue of the marriage, three sons, one of whom died an infant, and another of whom died a bachelor, and intestate. The father took out administration to the son last mentioned, and executed a deed, releasing his power of appointment. It was held by the Court of Appeal that the release was valid, and that the father was entitled as administrator to the son's reversionary interest, notwith- standing that it was admitted that there were no debts of the deceased son, and therefore his share would behmg to the father for his own benefit. But it was also held that there Merger. was no merger between the father's life interest, and the reversionary interest which he took through his deceased son; as they were held by the father in different rights, and that on the father executing a deed merging the two interests, he was entitled to have a transfer to himself of one moiety of the fund. It is submitted that, where such a transfer is made pursuant to an order of the Court, such a merger may be effected by means of a recital in the order, and without executing any fresh deed. Such a release as above mentioned cannot, however, be Power coupled effectually made in the case of a power in the nature of a ^'*^ '^"'>'- trust, or of a trust coupled with a duty, (z) A person who has made a fraudulent appointment is liable Liability of to make good, with interest, a trust fund which has been fraudulent ° ' appointor. (y) 1 Ch. (92) 227, C. A. Iz) Be Somes, 1 Ch. (96) 255. As to a power in the nature of a trust, see s. III. of this Chapter. 568 FRAUD ON A POWER. Object con- lost in consequence of the appointment ; but if the fraud fraud°^ '° ^^^ been carried into effect by means of an appointment made in favour of one of the objects who was an active party in carrying the same into effect, the amount payable must be dimiuished by the sum to which 8uch object would have been entitled in default of appointment, if no such transaction had taken place, — on the ground that such party is precluded from complaining of the transaction, (a) Onus probandi. The onu^ jprohandi that a transaction amounts to a fraud on a power, is upon the person seeking to impeach the same ; but the burden of proof will be shifted to the other side where a previous appointment by the same donee in favour of the same appointee, has been set aside, i.e. they must prove that the effect and influence of the previous transaction has been so obliterated, as to place the appointor on tlie one hand, and the appointee on the other, in the same position as if the previous transaction had never been entered into, (h) Personsagainst ^he Court will set aside an instrument or transaction tion^et aside • amounting to a fraud on a power, not only against the — purchaser ; appointee, but also against volunteers claiming under him, mere suspicion, gj^j^gj. ^i^h or without notice, and against purchasers with notice, or having only equitable interests ; but not against a purchaser who has obtained the legal estate, without notice, or with notice of facts giving rise to mere suspicion, (c) In M'Queen v. an old case of M'Queen v. Farquhar, (d) a father had power to arqu ur. appoint real estate, subject to the life interest of himself and his wife, to the use of all and every, or such one or more of their children, as he should think fit; and in default of appointment, the reversion was limited to the use of all his children, in equal shares, as tenants in common, in fee simple. He made an irrevocable appointment in favour of his eldest son ; and then the father, the wife, and the son conveyed the estate to a purchaser in fee simple, in possession, in con- sideration of £8000 stated in the conveyance to have been paid to all three. Upon a subsequent contract for the sale of the property, the purchaser objected to the title on the ground that these transactions (which appeared from the abstract) were so suspicious as to prevent his acquiring a good title. Lord Eldon, L.C., made a decree for specific (a) Re Deane, 42 Ch. Div. 9. (fe) Topham v. D. of Portland, 5 Oh. 61. (c) Alexander v. Mills, 6 Ch. 124. id) 11 Ves. 467, See also Henty v. Wrey, 21 Ch= D. 354. FRAUD ON A POWER. 569 performance, holding that mere circumstances of suspicion would not be sufficient to fix the purchaser with notice of any improper bargain, which might have been entered into between the father and the eldest son. If the donee of an inclusive power of appointment, i.e. Illusory one in the exercise whereof none of the objects could be appo'nt'"iG"t- excluded, appointed to one of the objects a mere nominal or illusory share of the property, the appointment was good at Law; but was formerly invalid in Equity. The equitable rule in this respect was found to be highly unsatisfactory, having regard to the difficulty of determining what was an illusory, and what was a substantial share ; and it was accordingly enacted by 1 AVill. 4, c. 46, to the efiect that every 1 Will. 4, c. 46. appointment should be valid and eflFectual in Equity as well as at Law, notwithstanding that any one or more of the objects should thereunder, or in default of appointment, take an unsubstantial illusory or nominal share. If, after the passing of this Act, the donee of an inclusive power of appointment over a fund of £100,000 in favour of children, having two children only, A. and B., chose to appoint one shilling to A., and the remainder of the fund to B., the appointment would have been good both at Law and in Equity ; but it would have been bad, if he appointed the whole to B. without giving A. the shilling. The only argument in favour of this state of the law was that the giving of the shilling showed that the appointor had not practically excluded A. through furgetfulness. This state of the law has now been abolished by the Act 37 & 38 Vict. 37 & 38 Vict. c. 37 (commonly called Lord Selborne's Act), passed in 1874, "^^ ^'^* by s. 1 whereof it is enacted to the efi"ect that no appoint- ment made after the passing of the Act, in exercise of a power to appoint any property real or personal among several objects, shall be invalid at Law or in Equity, on the ground that any object of such power has been altogether excluded ; but every such appointment is to be valid notwith- standing any one or more of the objects shall not thereby, or in default of appointment, take any share of the property. S. 2 contains a proviso that nothing in the Act contained shall prejudice any provision in an instrument which shall declare the amount or the share from which no object of tho power is to be excluded, (e) (e) As to this Act, see Be Deahin, 3 Cb. (94) 565. ( 570 ) CHAPTER XX. PRINCIPAL AND SURETY. Jurisdiction. The jurisdiction of the Court of Chancery in relation to the rights and liabilities of principal and surety, and of several sureties inter se, has generally been treated as part of its concurrent jurisdiction. In somewhat modern times Courts of Common Law assumed jurisdiction, on the ground of implied assumpsit, to compel one of several sureties to make a just contribution to a co-surety who had paid more than his proportion of the amount guaranteed. The Common Law remedy was, however, attended with considerable diffi- culty, when the sureties were numerous ; as separate actions could be brought against the different sureties, for their respective proportions, (a) In this and other respects, which will be pointed out below, the remedy was more effectual in Equity than at Common Laww The principles of Equity are now applicable to such rights and liabilities in all the Divisions of the High Court (by virtue of s. 24 (11) of the Judicature Act, 1873). (6)^ Section I. — Contract. Good faith in The contract of suretyship imports entire good faith and entering into confidence between the parties in regard to the whole trans- contract. . . .^ ,, r- T • ' action. It IS not indeed a contract uberrimae fidei, m reference whereto the Court requires a complete disclosure from one of the contracting parties to the other (as it does, for instance, when a trustee is dealing with his cestui que trust) ; but the law in relation to suretyship has been laid down by Fry, J., to the effect that very little said which ought not to have been said, and very little not said which ought to have been said, is sufficient to prevent a contract of suretyship from (a) Craythorne v. Sivinhurne, 14 Ves. 164. (6) Lowe V. Dixon, 16 Q. B. D. 458. CONTRACT. 571 "being valid ; and furthermore that everything like pressiire used by the intending creditor will have a very serious effect on the validity of the contract, (c) Where several persons appear by a bond, or other instru- Parol evidence ment of guarantee to be all principal debtors, parol or other " ^""^^ ^'' '^'■' evidence has always been admissible in Equity to show that one or more of them is or are a surety or sureties only. (' "^ , . T T T • • 1 *wo sureties. debtor also, and it was not so executed, but the principal debtor executed an instrument on which he could be sued by the surety, it was held by Lord Eomilly, M.K., that the surety was liable under the bond, (e) But in a recent case Alteration in before a Divisional Court of the Queen's Bench Division, ''°°'^- - A., B., C., and D. as sureties joined with the principal debtor in executing a joint and several bond in the parol sum of £150; and by the terms thereof the liability of A. and B. was limited to £50 each, and that of each of the other two to £25. A. executed the bond after the other three, but with an addition to his signature of the words "£25 only" ; and the obligee accepted the bond so executed, without objection. It was held that the addition of those words amounted to a material alteration in the bond, that B., C, and D. were dis- charged from their obligation, and that A. himself was not bound. (/) A continuing guarantee is not, in absence of express Revocation ; — provision, revoked as to subsequent advances by the death '^'^^l^^ ' notice of the guarantor; nor is a surviving surety released by the death of a co-surety, (g) It is however, as a rule, competent for a guarantor, during his lifetime, and for his legal per- sonal representatives, after his death, to determine such a guarantee by notice, so far as relates to future advances. (1i) The rule is otherwise where a person has entered into an Exception, unlimited guarantee for the fidelity or honesty of a servant, (c) Davies v. London, &c., Co, 8 Ch. D. 477; Phillips v. Foxall, L. E. 7 Q. B. 666. (d) Wyke v. Rogers, 1 D. M. & G. 408 ; Gray v. Secldiam, 7 Ch. 684. (e) Cooper v. Evans, 4 Eq. 45. (/) EUesmere, &c., Co., v. Cooper, 1 Q. B. (96) 75. Ig) Harriss v. Fawcett, 8 Ch. 866; Lloyds v. Harper, 16 Ch. Div. 290 ; Be Sherry, 25 Ch. Div. 692 ; Beckett v. Addyman, 9 Q. B. Div. 783 : lie Silvester, 1 Ch. (95) 577; Ashby v. Day, 54 L. J. Ch. 935, on App. 34 W. K. 312. (fe) Beckett v. Addyman, supra, at p. 789, 572 PRINCIPAL AND SURETT. Hnrriss v. Fawcett. or any other person in a position of trust. Such a gnarantee is not terminable by notice, (i) In Harriss v. Fawcett (J) a father gave to a bank a guarantee to secure all sums, not exceeding £3000, which the bank might advance to his son, and the guarantee was to continue in force until six months' notice should be given by the father to discontinue the same. He afterwards died, leaving real estate of considerable value, but only personal estate less than £200, and the bank, knowing of the tes- tator's death, and of the small amount of the personal estate, continued for some time afterwards to make advances to the son, who was his father's executor. The Court of Appeal (affirming the decision of Lord Eomilly, M.R.) held that the bank was not entitled to prove in the administration of the father's estate for the advances made subsequently to his death, A promise by way of guarantee, e.g., by A. to pay a sum of money to C. if B. do not pay, is void under s. 4 of the Statute of Frauds (29 Car. 2, c. 3), unless it be in writing, duly signed in accordance with that section ; but a promise by A. to indemnify B., e.g., a promise in any event, to put him in funds to meet a bill of exchange, at maturity, is not within that section and may be by parol only, (k) of Limitations. The Statute of Limitations does not begin to run against a surety claiming contribution against a co-surety until his liability under his contract of suretyship shall have been ascertained. (I) This rule applies to a trustee claiming contribution against his co- trustee, in respect of a liability incurred from loss occasioned to the trust estate, through the default of both of them, (m) Statute of Frauds ; Section II. — Indemnity and Contribution. Right to be When the money secured has become payable by the surety indemnified by to the principal creditor, the former is entitled to commence prmcipa . ^^ action against the principal debtor, to compel him to pay (i) Lloyd's v. Harper, 16 Ch. Div. 306. ( /) Supra. (k) Guild V. Conrad, 2 Q. B. (94) 892 ; Ee Hoyle, 1 Cli. (93) 84 ; Jen- Sufficiencv of ^''""* ^- Coomher, 2 Q. B. (98) 168. Upon the question what is a sufficient memorandum memorandum of a guarantee -within s. 4 of the Statute of Frauds, see Sheers v. TUmUeby, 76 L. T. 709. (J) Wolmershausen v. Gullick, 2 Oh, (93) 529. Compare Barker's Claim, 3 Ch. (94) 290. (in) Boiinson v. Earlcin, 2 Ch. (96) 415, INDEMNITY AND CONTRIBUTION. 573 off the amount secured, and thereby relieve the surety from his obligation, (n) The surety may adopt this course whether he has been called upon to pay the amount secured, or not ; (o) and if one of several sureties has paid the whole or more than his proportion of the amount secured, he may compel the co-sureties to pay their respective proportions, with interest at four per cent, (p) The right to contribution between sureties is founded upon Contribution general principles of Equity, independently of contract ; and |.^Qt^,!^ct ^^ " it applies whether the sureties are bound by the same instru- prima facie ment, or by different instruments, so long as they refer to ^l"!^'- the same principal sum, or to the same engagement, (q) Where there are several sureties, each is, as a rule, and in absence of agreement to the contrary, bound to contribute an equal amount; but if a guarantee contains a limitation of different amounts in respect of each of the guarantors, then they must contribute rateably, and in proportion to the amounts so limited, e.g., if A. and B. guarantee the payment of the sum of £1800, and the guarantee contain a provision limiting A.'s liability to £1200, and B.'s liability to £600, while the loss sustained amounts to £600 only, then A. must contribute £400, and B. £200. (j) In Be Ennis, (s) F., as principal, with A. and B. as sureties, Re Ennis. \ executed a bond to secure the payment of a sum of money at the end of five years, and of interest in the meantime. The bond provided, inter alia, that if A. and B., or either of them should die while any money remained due upon the bond, and if A. should not, within a month, procure a solvent person to enter into a further bond to the same effect as the first one, the money should immediately become payable. Upon the death of A,, a like bond was entered into by F,, B., and H. B. and H. paid the whole debt. It was held by (n) Antrohus v. Davidson, 8 Mer. 579. Upon the question what amounts Abandonment to an abandonment of a claim for indemnity, see Chadwick v. Manning, of rii^ht A. C. (96) 231, P. C. (o) Wolmershausen v. GuTliclc, 2 Ch. (93) 528, and cases tlicrein cited. (p) Hitchman v. Stewart, 3 Dr. 271. As to the rate of interest, see supra, pp. 55, n. (22), 529, n. (0). iq) Uering v. E. of Winchelsea, 1 Cox, 318; 2 Wh. & Tu. L. C. Eq. 535. (r) Ellesmere, dec, v. Cooper, 1 Q. B. (96) 75 ; Huhson v. Bass^, 6 Ch'. 792 ; Ellis v. Emmanuel, 1 Ex. Div. 163 ; Macdonald v. Whitfield, 8 App. 733, P. C. ; Arcedeck7ie v. Howard, 20 W. R., 879. (s) 3 Ch. (93) 238. As to the effect of a proviso for determining; tlie Notice by " re- liability under a bond on notice by any one or more of the obligors, or preseutatives." their respective "representatives," see lie Silvester, 1 Ch. (1)5) 573. 574 PRINCIPAL AND SURETY. When right to contribution arises. Action qiiia timet. Parties to action ; — declaration of right. Contribution aa;ainst estate of deceased surety. the Court of Appeal (varying the order of Bacon, V.-C), that A.'s estate was not released by the execution of the second bond ; but that it was liable to contribute only one-third of the amount paid by B. and H. Until, however, the surety shall have paid the whole debt to the principal creditor, or more than the proportion payable by him as between himself and his co-sureties, there can be no equitable debt due to him from his co- sureties for the payment of which judgment could bo obtained, or which could be the subject of an adjudication in bankruptcy. (<) But if he has been sued, or threatened to be sued by the principal creditor, he is entitled, even though he has not paid any part of the debt, successfully to commence an action to compel his co-sureties to join with him in paying the debt, in the proper proportions ; and it has recently been held by Wright, J., («) that the legal personal representative of a co-surety is so entitled, when a claim for the debt has been allowed against the estate of his testator or intestate in an action for administration. The principal creditor is a necessary party to an action to obtain this relief; but in the case above referred to, Wright, J., in absence of such creditor, made a declaration of the plaintiff's right (as executrix of the deceased surety) to contribution, and made a prospective order under which, so soon as the plaintiff should have made any payment beyond the amount of her share, she could get it back, and directing that upon the plaintiff paying her own share, her co-surety was to indemnify her against further payment or liability, and was, by payment to her, or to the principal creditor, or otherwise, to exonerate her from liability beyond the extent of her own share ; and gave her liberty to apply in Chambers for that purpose accordingly. When, before the Judicature Acts came into operation, one of several sureties died, the right of one of them to contribution, on paying the whole or more than his pro- portion of the debt, was only recognized at Law against the surviving co-surety or co-sureties; while in Equity, he was also at liberty to proceed against the estate of the deceased co-surety. The equitable rule now prevails in all the Courts. (0 Ex parte Snowdon, 17 Cli. Div. 47. (w) Wolmershausen v. GuUich, 2 Cb. (93) 514. INDEMNITY AND CONTRIBUTION. 575 Before the Judicature Acts, the amount which each co- insolvency, surety was liable at Law to contribute, was the total amount •^*<=' ^^ •=<>- guaranteed divided by the number of contributors ; and no ^^^'^ ^' allowance was made in respect of the inability, through insolvency or otherwise, of some of them to pay their respective shares ; but in Equity, those who could pay wero bound not only to contribute their own shares, but also to make good the shares of those who were unable to con- tribute. If there were three sureties one of whom became unable to pay anything, and another of whom paid the whole debt, the latter could at Law, and in absence of any provision to the contrary, only recover one-third from the solvent co-surety, while in Equity he coiild, and he can now in any of the Courts, recover one- half. («) The equitable rights of a surety against his co-surety Stipulations may be varied by express contract ; or in other words, it is ^''^'"y'"S . , ^ . PI- 1 • n surety s rights. quite competent for him to contract himself out of such rights, upon any sjDecial or other terms which may be agreed upon. (w) The question of the liability of one or more of several Bills of co-sureties to contribution, frequently arises in the case of ^^J^'^"^^ ' bills of exchange, and promissory notes. The liabilities inter indemuity. se of successive indorsers of a bill or note must, in the absence of all evidence to the contrary, be determined according to the ordinary principles of the law-merchant, whereby a prior indorser must indemnify a subsequent one. But the whole of the circumstances attendant upon the making, issue and transfer of the bill or note may be legitimately referred to, for the purpose of ascertaining the true relation to each other of the parties who affix their signatures thereto, whether as makers or indorsers; and reasonable inferences derived from these facts and circumstances are admissible for the purpose of qualifying, altering, or even inverting the relative liabilities which the law-merchant would otherwise assign to them. Accordingly where the directors of a company mutually agreed with each other to become sureties to a bank for the same debt of the company, and in pursuance of that * agreement, successively indorsed three promissory notes of the company, it was held by the Judicial Committee of the (v) Hitchman v. Steicart, 3 Dr. 271 ; Lowe v. Bixon, 16 Q. B. D. 458. (w) Re Ennis, 3 Cli. (93) 238, and cases tliorc cited ; Ex parte National Bank, 17 Cb. Div. 102, 103 ; Arcedechne v. Howard, 20 W. li. 879, C. A. 576 PRINCIPAL AND SURETY. Bills of Ex- change Act, 1882,8.8:^(3) — promissory note ; — pro- vision giving time for payment. Discharge in bankruptcy ;— defence of; — 46 & 47 -Vict. c. 52, s. 37. General rule. Forbes v. Jackson ; — tackirg. Privy Council that such directors were entitled and liable to equal contribution inter se, and were not liable to indemnify each other successively according to the priority of their indorsements, (a;) In Kirkwood v. Smith, (?/) a document described as a pro- missory note provided for the payment of certain money by instalments, with a condition making the whole amount payable, on default in payment of any one instalment, and contained a clause that " no time given to, or security taken from, or composition or arrangements entered into with, either party hereto, shall prejudice the rights of the holder to pro- ceed against any other party." It was held by the Divisional Court that inasmuch as the document contained something more than is referred to in s. 83 (3) of the Bills of Exchange Act, 1882 (c. 61), it was not a promissory note, and could not be sued on as such. A proof in bankruptcy may, under s. 37 of the Bankruptcy ■ Act 1883 (c. 52), be made in respect of the liability of a bankrupt co-surety to contiibution, though such liability be unascertained at the time of the bankruptcy proceedings ; and therefore such bankrupt would be entitled successfully to plead his discharge in bankruptcy, as a defence to an action for contribution. (2) Section III. — Eight of Surety to Securities held hy Principal Creditor. It was an old doctrine of the Court of Chancery that a surety was, on satisfying the debt, entitled to the benefit of all securities in the hands of the creditor, whether he was or was not aware of their existence at the time when he entered into the guarantee ; (a) and the doctrine has, in recent times, been extended to all securities subsequently acqniied by the creditor. Thus, in Forhcs v. Jaclcson, {h) S., by a mortgage dated in 1854, a!?signeil certain leasehold property and a policy of assurance, to secure the repayment of a sum of £200 advanced to him by W., and interest. The plaintiff was a party to the mortgage deed, and thereby assigned a (x) Macdonald v. Whitfield, 8 App. 733. (2/) 1 Q. B. (96) 582. Iz) Wvlmershausen v. Gulliclc, 2 Cli. (93) 514. («) Ward V. National Bk. of New Zealand, 8 App. 705; ITeyman Y. DnhtiU, 13 Eq. 158 (marshalling). Qj) 19 Ch. D. G21. RIQET TO SECURITIES. 571 policy on his own life, and covenanted as surety, for the pay- ment of the interest, and the premiums on both policies. In and prior to 1866, W., without the plaintiff's know- ledge advanced to S. sums of money amounting together to £530, on the security of the same leasehold property, and the policy on S.'s life. S. afterwards made default in payment of the interest. W. died in 1878; and the plaintiff paid the arrears of interest to his executors, and he also paid the premiums on the policy last referred to. The defendants, the executors of W., claimed to be entitled to tack the further advances to the original security, and to retain the leasehold property as a security for the further sums advanced to S. (c) It was held by Hall, V.C., that they were not entitled so to do ; but were bound to transfer all the securities to the plaintiff, on his paying the amount due under the mortgage of 1854. The right of the surety will prevail not only against the Surety's rights principal creditor, but also against a subsequent incum- 'ig*™st subse- brancer having an equitable interest only, or taking the legal brancers • estate or interest with notice. Thus, in Drew v. Locketl, (d) Drew v. A. mortgaged his estate to C, to secure a sum of money °° ^ ' advanced by the latter, and B. joined in the mortgage, and guaranteed the payment of the debt thereby created. A. afterwards mortgaged the estate to D., who had notice of the prior mortgage, which was subsequently paid off, partly by the surety ; but D. obtained a transfer of the legal estate. It was held by Lord Eomilly, M.E., that the surety had priority over D. for the amount so paid by him. The surety was entitled to the benefit of the securities Right inde- held by the creditor, as above stated, on principles of Equity, pendent of con- and independently of contract; and therefore the endorser of ^.^overinc ' a bill of exchange was entitled to the benefit of any securities securities. deposited by the acceptor with the holder, by way of cover, and in order to meet the bill at maturity, (e) It was held, however, in Copis v. Middleton, (/) that a surety, upon satis- Copis v. fying the bond entered into by him, was a simple contract ^ercMtile"" creditor only. In consequence of this decision, it was, by the Law Amend- Mercantile Law Amendment Act, 1856 (c. 97) s. 5, enacted "l'^"* ^^l> 1856, s. 5. (c) Ag to the right of a mortgagee to tack in general, see supra, pp. 417 et seq. (d) 32 B. 499. (e) Dunmn v. N. d S. Wales Bk., 6 App. 1. (/) T. & K. 229. 2 1' 578 PRINCIPAL AND SURETY. Assignment of judgment not requii-ed. Bankruptcy of debtor ; — interest. Right to 'prove lor whole debt, etc. Broker ; — undisclosed principal ; — vendor's lien. to the effect that a surety who has paid off the principal creditor is entitled to have an assignment to himself, or to a trustee for him, of every judgment, specialty, or other secu- rity which shall have been held by the creditor, and to stand in the place and to use all the remedies of the creditor, for obtaining repayment from the principal debtor, or any co-surety, and for this purpose, and upon giving a proper indemnity, to use the name of the creditor. When a creditor has obtained judgment against the debtor and his sureties, a surety who satisfies the judgment is, under this section, entitled to stand in the place of the creditor, though he has not obtained an actual assignment of the judgment, {g) A surety who has paid the amount guaranteed by him is entitled, under this section, to prove in the bankruptcy of the principal debtor, for interest on the amount paid, as well as for the amount of the principal. (A) When one of two co-sureties has paid to the creditor the whole of the debt, and taken an assignment of the securities, he is entitled, under this section, to bring an action against his co-surety, or to prove against his estate, as the assign of the creditor, for the full amount of the debt, although he can actually recover only the just proportion which, as between the sureties, the co-surety is liable to pay. (i) A broker or other agent who, according to the custom of a particular trade, buys goods for an undisclosed principal, upon the terms of being personally liable to the vendor for the price of such goods, in the event of the purchaser failing to pay, is for all practical purposes a surety and is, as such, entitled, under this section, and upon his paying for the goods, to the benefit of the vendor's lien. Thus, in The Imperial Sank v. London, &c., Co., (j) the title of such a broker, who had discharged the purchase money, was held by Jessel, M.K., to have priority over the title of the plaintiffs, with whom a delivery order for the goods had been previously deposited by the purchasers, to cover their banking account, the latter having in the meantime stopped payment. But a right of distress is not a security or (g) Re M'Myn, 33 Ch. D. 575 ; Re Churchill, 39 ih. 176. (h) Re Evans, 76 L. T. 530. (0 Re Parker, 3 Ch. (94) 400. U) 5 Ch. D. 195. RIGHT TO SECURITIES. 579 remedy to the benefit of which a surety, paying rent, is entitled tinder the same section. (Jc) A surety is entitled, upon being sued by the principal Set off of debt creditor, to set oflf against the amount claimed, a debt due ^^"^/'■o™ . . ° . . , . creditor to from the plaintiff to the principal debtor arising out of the principal same transaction out of which the liability of the surety has ^^^^°^' '"T arisen. Thus, in Bechervaise v. Lewis, (I) which was an Lewis. action by the payee of a joint and several promissory note given b}'^ the defendant as surety, and a deceased person named Rowe, on account and in payment of a sum of money which Eowe had agreed to pay to the plaintiff, the plaintiff after the making of the note, and without the defendant's consent, became indebted to Rowe in a larger sum of money, by having received certain partnership debts which he had sold to Rowe, and for part of the purchase money whereof the note in question had been given, thus putting it out of his power to recover either against Rowe during his life time, or against his estate after his death. "The Court of ' Common Pleas gave judgment in favour of the defendant, on demurrer to a special plea, claiming set off, on equitable grounds. A creditor is not entitled, as a matter of course, to the Right to benefit of a counter or collateral security given by the counter principal debtor to the surety, (m) But one of several "' ' sureties, who has obtained from the principal debtor a counter-security for the liability which he has undertaken, is, as a rule, bound to bring into hotchpot, for the benefit of his co-sureties, the moneys which he may receive from that source, even though he consented to become surety only upon the terms of having the security, and though the co-sureties were, at the time of entering into the original contract, ignorant of his agreement for security, (n) So also where one of several sureties, with the assistance Set off of of his father, paid off the amount due on the guarantee. Policy moneys and obtained an assignment from the principal creditor of three policies ot assurance which the latter had effected on the debtor's life, it was held that he was bound, on claiming contribution from his co-sureties, to allow, (fc) Be Russell, 29 Ch. Div. 254. (I) L. R. 7 C. P. 372. Compare Bowyear v. Pawson, 6 Q. B. D. 540 ; Alcoy, Ac, Co. v. Greenhill, 76 L. T. 542. (m) Be Walker, 1 Cli. (92) 621. 00 Berridge v. B., 44 Ch. D. 168. 2 P 2 580 PRINCIPAL AND SURETY. Right of surety for part of debt. Stipulation varying. Limited guarantee for floating balance ; Ellis V. Emmanuel. What is a continuing guarantee ? by way of set off, the moneys received by him, under the policies after the debtor's death, credit being given for premiums and other sums which he had paid in relation to the transaction, (o) When a surety has guaranteed, and has discharged a limited part of a debt, he is entitled to receive the dividend which the estate of the principal debtor may pay in respect of the sum so discharged; e.g. if the guarantee be for the sum of £500, part of the floating balance which may, for the time being, be owing froiia the principal debtor upon a running account, and the debtor be adjudicated a bankrupt, then if there were £750 owing at the date of the receiving order, and after the surety had paid the £500 owing on the guarantee, the principal creditor were to be paid a dividend on the £750, the surety would be entitled to call upon the principal creditor to recoup to him two-thirds of the dividend so received. But the surety may contract himself out of this right by express stipulation, (j?) When a person has given a continuing guarantee (g) limited in amount, to secure a floating balance, the guarantee is, as between the surety and the creditor, to be construed, ^rima facie, as applicable to a part only of the debt, co-exten- sive with the amount of the guarantee — on the ground that it is inequitable on the part of the creditor to increase the balance at the expense of the surety. But it has been held that a guarantee limited in amount for a debt already ascer- tained which exceeds the limit, will not, prima facie, be construed as a security for part of the debt only. In Ellis v. Emmanuel (r) a debtor and his sureties, of whom the defendant was one, executed a joint and several bond for the sum of £14,000, to become void if the obligors or any of them should, in satisfaction of a debt of £70* )0 then due from the debtor, pay to the plaintiff the sum of £7000, with a proviso that the defendant should not be liable under the bond for any sum or sums exceeding altogether, in debt or damages, the sum of £1300, and limiting the other sureties to other sums (o) Be Arcedechne, 24 Ch. D. 709. (p) Ex parte National, dec, Bank, 17 Ch. Div. 102, 103: Re Sass, 2 Q. B. (96) 12. (g) Upon the question what amounts to a continuing guarantee, see Lloyd's V. Harper, 16 Ch. Div. 290, and cases there cited; Laurie v. Scholefield, L. E. 4 C. P. 622; Coles v. Fade, 5 ih. 65; Nottingham, dc, Co. V. Bottrill, 8 ib. 694 ; Me Boys, 10 Eq. 467. (r) 1 Ex. D. 157. EIGHT TO SECURITIES. 581 making up altogether the sum of £7000. The debtor having paid £1000 part of the debt, went into liquidation, and the plaintiflf proved for and received a dividend of 98. 2d. in the pound. After deducting from the £7000, the £1000, and the amount of the dividend so received, there remained more than £1300 due on the bond. It was held by the Court of Appeal that the intention of the bond was that each of the obligors should guarantee the whole of the £7000, though their liability was limited to the several sums therein mentioned ; and that therefore the defendant was liable for the whole of the £1300, without any deduction of a rateable proportion of the dividend. The like principle has been recently applied by Williams, J., to a case where the amount of the debt had not been ascertained at the date of the guarantee ; but this decision appears to have turned on the express terms of the guarantee itself, (s) Where creditors agree to accept a composition payable by Surety for instalments, some of which are guaranteed by a surety, then *=°™P°^'*i°"- if default is made in the payment of any one instalment, the creditors have a right to sue the debtor, or to prove against his estate in the event of his being adjudicated a bankrupt, for the balance of their original debts, after deducting the amounts which they have respectively received, either from the debtor or from the surety, in respect of the composition, and not merely for the amount of the unpaid instalments of the composition, (t) The surety is entitled, in the event of Proof in bank- the debtor's bankruptcy, to prove for the amount which he ^"Ptcy by has paid in respect of the composition ; but he has no right to put the other creditors to their election whether they will give effect to the arrangement for the composition in toto, or reject it in toto. (u) When a surety compounds the debt for which he and his Composition principal have become jointly liable, he can only claim g^^'j^f^^ j .^ against the principal the amount which he has actually paid, agent. e.g., if a debt amounting to £1000 with an arrear of interest, were purchased by the surety for £500, he could only claim the latter sum from the principal, with interest thereon from the date of the purchase. The rule of Equity is in this (s) Re Sas8, 2 Q. B. (96) 12. (0 Ex parte Gilbey, 8 Ch. Div. 248. (m) lb. 582 PRINCIPAL AND SURETT. respect analogous to that applicable between principal and agent, {y) Evidence; — In the absenco of special agreement, a judgment or an ao^^if n^t'd bt ^""^^^., 1 Ch. (94) 401 ; Mxjers v. M., Gl L. T. 757. 604 PARTNERSHIP. Annuity on sale of goodwill. S. 3. Postponement of rights of lender on insolvency. Repealed Act of 1865. , Sharing profits. Executor of deceased partner. a person engaged or about to engage in any business on a contract with that 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 the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such ; provided that the contract is in writing, and signed by or on behalf of all the parties thereto : (e.) a person receiving by way of annuity or otherwise a portion of the profits of a business in considera- tion of the sale by him of the goodwill of the business is not by reason only of such receipt a partner in the business, or liable as such. In the event of any person to whom money has been advanced by way of loan upon such a contract as is men- tioned in the last foregoing section, or of any buyer of a goodwill in consideration of a share of the profits of the business, being adjudged a bankrupt, entering into an arrange- ment to pay his creditors less than twenty shillings in the pound, or dying in insolvent circumstances, the lender of the loan shall not be entitled to recover anything in respect of his loan, and the seller of the goodwill shall not be entitled to recover anything in respect of the share of profits con- tracted for, until the claims of the other creditors of the borrower or buyer for valuable consideration in money or money's worth have been satisfied. Ss. 2 (sub-s. 2 & 3) and 3 should be compared with the repealed Act of 28 & 29 Vict. c. 86, " to amend the Law of Partnership " passed in 1865, sometimes called, from the name of its author, Bovill's Act. The sharing by any person of the profits of a business carried on by another person afibrds a cogent inference that the former is a partner. Such an inference is however capable of being rebutted, (d) Though, as observed by Lindley, L. J., in a recent case, (e) if all that is known is that one person carries on a business, and shares the profits of that business with another, prima facie those two are partners, or prima facie the person carrying on the business is carrying it on as the agent of the person with whom he shares his profits, yet, in order to decide the question of partnership or no partnership, the whole scope of the agree- ment between such persons and all its terms ought to be (d) Pooley v. Driver, 5 Ch. D. 485 ; Syers v. S., 1 App. 174 ; Singleton V. Knifjht, 13 App. 788 ; Eawksleyy. Outram, 3 Cli. (92) 359; Davis v. D., 1 Ch. (94) 397 ; Bullen v. Sharp, L. E. 1 C. P. 86 ; Holme v. Mammond, L. R. 7 Ex. 218 (executor of deceased partner entitled to share of profits) ; Re Young, 2 Q. B. (96) 484. (e) Baddey v. Consolidated Bank, 38 Cii. Div. 258. PARTNERSBIP. 605 looked at before any presumption of intention to create a partnership can properly be made. (/) If the Court should Borrower and be of opinion, upon the construction of the agreement, that |j'-°.|'*'3 '.~, the parties only intended to create the relation of borrower service. and lender, or of hiring and service, then the lender, clerk or servant will not have, as against the borrower or master, the rights of a partner ((/) except that he will, in absence of Right of such stipulation to the contrary, be entitled to an account of the *" ='ccount. profits, and for that purpose to investigate the books of the business, (li) The Court may, on the question of partner- Money to ship or no partnership, take into consideration such matters v''"7 *"^^ of fact as the source from whence the money for carrying on control, etc. the business is supplied, the control of the business, the profits received, and the character in which they are re- ceived. If an adventure is carried on for a person so that it Concealment is his business, then he is a partner, whatever subtle con- ownership trivance he may resort to in order to cloak and muffle the real nature of his interest in the concern. (^) When two persons agree to share the profits and losses of Stipulation an adventure in specified proportions, they will have the ^-^ h^not^'"' rights and be subject to the liabilities of partners, even if intended. the agreement should contain an express stipulation that no partnership is intended to be constituted, (y ) A like prin- ciple applies when an agreement for a loan is expressed to be entered into pursuant to the section now under considera- tion. (Ic) The real owner of the business will notwithstand- ing such stipulations, be subject, as between himself and the outside world, to all the liabilities of a real partner. But (/) See also Mollwo v. Ct. of Wards, L. K. 4 P. C. 433 ; Bavis v. X>., 1 Ch. (94) 398. (3) Ross V. Parhyns, 20 Eq. 331 ; Sutton v. Grey, 1 Q. B. (94) 285, C. A. ; Walker v. Hirsch, 27 Ch. Div. 460, where it was held that the plaiiititf was only in the position of a servant to the defendants ; and that therefore he was not entitled to a receiver or manager, or to an injunction to restrain the defendants from excluding him from the alleged partnership, or from dealing with the assets. (h) See Rishton v. Grissell, 5 Eq. 329 (since Bovill's Act); Turney v. Bayley, 4 D. J. & S. 332 (prior thereto). The words " nor give him the rights of a partner " in s. 2 of that Act are omitted from s. 2 (3) b of the Act of 1890. (i) Per Lord Halsbury, L.C., in Adam v. Newhigging, 13 App. 31G. See also Pooley v. Driver, 5 Ch. D. 485 ; Ex parte Tennant, G Ch. Div. 303 ; Tyser v. The IShipoicners' Syndicate, 1 Q. B. (96) 135. (,/) Moore v. Davis, 11 Ch. D. 261. (/i) Ex parte Delhasse, 7 Ch. Div. 511 (bankruptcy case under the Act of 1865). 606 PABTNEBSmP. One partner only to bear losiies. Signature of agreement. S. 3 ; — con- tract need not' be in writing. Personal liability to repay loan. Right of mortgagee ;— bankruptcy, etc. S. 4. Meaning of firm. though two persons may be both subject to all the liabilities of a partnership in favour of creditors, an agreement that one of them only shall be liable for the partnership debts, or to make good losses, is binding as between the partners themselves, (m) The Act of 1865, though it required the contract for a loan made pursuant to the Act to be in writing, did not, like s. 2, sub-s. 3 (d) of the present Act, require the same to be signed by the parties, (n) It will be observed that s. 3. is confined to cases of loan, and the sale of the goodwill of a business, in consideration of a share of the profits. In eitber case, the lender or vendor is liable to be postponed, in the event of the borrower or purchaser becoming a bankrupt, or entering into an arrange- ment with his creditors, and whether the contract be in writing or not. (o) A loan must, in order to come within s. 2 (3) (d) be a loan which the borrower is liable personally to repay, and not one made on the security of the business. (j>) When the loan is secured by mortgage, s. 3 will not affect the right of the lender to enforce his security in the event of the borrower becoming bankrupt or insolvent, (q) (1.) Persons who have entered into partnership with one another are, for the purposes of this Act, called collectively a firm ; and the name under which their business is carried on is called the firm-name. (2.) In Scotland a firm is a legal person distinct from the partners of whom it is com- posed, but an individual partner may be charged on a decree or diligence directed against the firm, and on payment of the debts is entitled to relief pro rata from the firm and its other members. Cases under 1865 Act. (m) Syers v. 8., 1 App. 188 ; Davis v. D., 1 Ch. (94) 400. (n) But see Pooley v. Driver, 5 Ch. D. 485. (o) Re Fort, 2 Q. B. (97) 495,C. A. ; compare Ee Young, 2 Q. B. (96) 484 ; Be Vince, 2 Q. B. (92) 478. As to the construction and effect of ss. 1, 2 of the Act of 1865 corre- sponding to s. 2 (3) d. and b. respectively above set forth, see Ex parte Taylor, 12 Ch. Div. 366; Be Stone, 33 Ch. D. 544, and see these cases, and also Be Mills, 8 Ch. 569, and Be Hildersheim, 2 Q. B. (93) 357, as to r 1 •/• 8. 5 (corresponding to s. 3 of the present Act). As to loans by a wife to a L,oan by wite. ^j.g^,|jjjg partnership of which her husband is a member, see Be Tuff, 19 Q. B. D. 88; and compare s. 3 of the M. W. P. Act, 1882. See also supra, p. 229. Q}) Ex jKirte Delhasse, 7 Ch. Div. 511. {q) Ex parte Sheil, 4 Ch. Div. 789; Ba,deley v. Consolidated Bank, 38 ib. 238. PARTNERSniP. 607 Every partner is an agent of the firm and his other S. 5. partners for the purpose of the business of the partnership ; Power of and the acts of every partner who does any act for carrying |]-Qj"ti[g g^m on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his part- ners, (r) unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person ' with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner. A managing partner of a business firm has an implied Employment authority to employ a solicitor to defend an action brought ° ^° '*^' °^' against the firm, for the price of goods supplied thereto, in the ordinary course of business, (rr) An act or instrument relating to the business of the firm S. 6. and done or executed in the firm-name, or in any other ^^^f "'^ behalf manner showing an intention to bind the firm, by any ° ^'^™* person thereto authorised, whether a partner or not, is binding on the firm and all the partners, (s) Provided that this section shall not affect any general rule of law relating to the execution of deeds or negotiable instruments. Where one partner pledges the credit of the firm for a S. 7. purpose apparently not connected with the firm's ordinary Partner course of business, the firm is not bound unless he is in fact '^P^'^P*^^ ^ specially authorised by the other partners ;{t) but this sec- credit of firm. tion does not aff'ect any personal liability incurred by an individual partner. If it has been agreed between the partners that any re- S. 8. striction shall be placed on the power of any one or more of ^ff^^t of them to bind the firm, no act done in contravention of the "° ^'^^' agreement is binding on the firm with respect to persons having notice of the agreement. Every partner in a firm is liable jointly with the other S. 9. partners, and in Scotland severally also, for all debts and ^^'^^'I'^y "f obligations of the firm incurred while he is a partner ; {u) ^^^ °^^^* (r) Fooley v. Driver, 5 Ch. D. 476 ; Edmunds v. Bushell, L. R. 1 Q. B. 97 ; Miles' Claim, 9 Ch. 642 ; Simpson's Claim, 36 Ch. D. 538 ; Scarf v. Jardine, 7 App. 349 ; Watteau v. Fenwick, 1 Q. B. (93) 346 (queried in Lind., 134). Compare Simpson's Claim, supra. As to the liability of a Bills signed in firm on bills of exchange signed in the name of the firm, see the Bills of name of firm. Exchange Act, 1882, s. 23, and when signed by a partner whose name is the same as that of the firm, Yorkshire etc. Co. v. Beatson, 5 C. P. Div. 109. (rr) Tomlinson v. Broadsmith, 1 Q. B. (96) 386, 0. A. See also Court v. Berlin, 2 Q. B. (97) 396, C. A. (s) Simpson's Claim, supra. As to the doctrine of retrospective ratifi- cation, see Bolton Partners v. Lambert, 41 Ch. Div. 295 ; lie Portuguese etc. Mines, 45 ib. 16. (0 Kendal v. Wood, L. R. 6 Ex. 243. (u) Kendall Y. Hamilton, 4 App. 504 ; Hammond v. Schofield, 1 Q. B. (91) 453 ; Hoare v. mblett, 1 Q. B. (91) 781 ; Wilson etc. Co. v. Balcarres etc. Co., 1 Q. B. (93) 422 ; Badeley v. Consolidated Bank, 34 Ch. D. 536, 608 PARTNERSHIP. Deceased partner. Joint and separate estate. Parties to administration action. Parol evidence ;— partnership loan. Bankruptcy;— proof in com- petition with creditors. and after his death his estate is also severally liable in a due course of administration for such debts and obliga- tions, so far as they remain unsatisfied, but subject in England or Ireland to the prior payment of his separate debts. Before the Judicature Acts, a creditor of two partners could, after the death of one of them, only sue at Laio the survivor ; but he was entitled, in Equity, in default of pay- ment of his debt, to a decree for the administration of the estate of the deceased partner — even if he had obtained judgment at Law against the surviving partner, and the judgment remained unsatisfied. Unless, however, there was no joint estate, the Court only admitted the partnership creditor to rank against the estate of the deceased partner, after all his separate debts had been paid in full, (v') The equitable rule has since the Judicature Acts been recognised in all the Courts ; and it has not been afiected by s. 9 of the Partnership Act, 1890, above set forth. If the claim of a creditor cannot be satisfied by means of a judgment or decretal order actually pronounced or made for administration of the estate of the deceased partner, an action may after- wards be successfully maintained against the survivor. In fact it does not matter whether the creditor first sues for administration of the estate of the deceased partner and afterwards sues the surviving partner personally, or vice versa, (w) If, however, it should be proved at the trial of the action for administration by a creditor of the partnership that the estate of the deceased partner is insufficient for the payment of his separate debts, the action will be dismissed, (x) The surviving partner should be a party to any such ad- ministration action, (y) 38 Ch. Div. 238; Wegg-Prosser v. Evans, 1 Q. B. (95) 108, C. A. Friend v. Young, 2Ch. (97) 421. As to tlie admission of parol evidence to show that money which partners liave borrowed and covenanted jointly and severally to repay was used for partnership purposes, see Ex parte Stone, 8 Ch. 914. (Proof in bankruptcy). {vj As to the corresponding rule in bankruptcy, see Be Head, 1 Q. B. (94) 638 ; Re Budgett, 2 Ch. (94 557, and as to the bankruptcy rule which forbids a partner or his representatives to prove in competition with the creditors of the tirm, see lie Uephurn, 14 Q. B. D. 394. (w) Re Hodgson, 31 Ch. iJiv. 177 ; Beresford v. Browning, 1 Ch. Div. 30. Re Doetsch, 2 Ch. (96) 839. (a;) Re Barnard, 32 Cii. Div. 447. («/) Wilkinson v. Henderson, 1 M. & K. 582; Be McBae, 25 Ch. D. 19, 21. PAIiTNEBSBIP. 009 If jiiflgment be obtained against A. and B., partners by Judgment. tbeir individual names for a partnership debt, and it sub- ^^f "^~ f"""® ■■^ ... only of living sequently appear thatC. (a person still living and who could partners. have been served in England or Wales, when the writ was issued) was one of the partners jointly liable, no action can be successfully maintained against C, the judgment against partner out of A. and B. being res judicata, (z) According to a recent jurisdiction, decision of Byrne, J., (zz) if an action to enforce a joint "^^^'^ claim were commenced against all three, and before the trial, judgment were taken by consent against A. and B., the action against C. would fail at the trial. The case would be otherwise if the action had been commenced against A. and B. alone, and C. had been out of England or Wales, or could not be found, at the commencement of the action ; (a) or if the liability of C. arose out of a breach of trust or tort for which the firm is liable, (fe) Where, by any wrongful act or omission of any partner S. 10. acting in the ordinary course of the business of the firm, or Wiongful with the authority of his co-partners, loss or injury is caused "'^ *' "^ ^" to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act. (c) Prima facie damages given against one partner for a wrongful act in relation to the partnership business are to be paid like any other partnership debt ; but if the wrongful act has been occasioned by the personal misconduct or culpable negligence of one partner, he alone must, as be- tween himself and his co-partners, ultimately bear the con- sequences, (d) In the following cases; namely— (a.) where one partners. 11. acting within the scope of his apparent authority receives Misapplication of money, etc. (z) Kendall v. Hamilton, 4 App. Cas. 504 ; Be Davison, 13 Q. B. D. 50 ; Be Parkers, 19 Q. B. D. 84 ; Baddey v. Consolidated BL, 34 Ch. D. 536 ; on appeal 38 Cb. Div. 238 ; Wegg-Prosser v. Evans, 1 Q. B. (95) 108. (zzj McLeod v. Power, 2 Ch. (98) 295. As to a claim by one of two joint joint promisees, see Cullen v. Knowles, 2 Q. B. (98) 380. uromisees (a) See O. 48a, r. 8; Dobson v. Festi, 2 Q. B. (91) 92; St. Gohain, etc., Co. V. Hoyermann, 2 Q. B. (93) 96 ; Bohinson v. Geisel, 2 Q. B. (94) 685. (b) Be Davison, 13 Q. B. D. 50 ; Be Parkers, 19 Q. B. D. 84. See also the four following sections of the Act. (c) SeeBlyth v. Fladijate, 1 Ch. (91) 337; Mara v. Broion, 1 Ch. (96) 199, C. A. (Negligence of solicitor's firm in investing money on insuHicient Becurity.) St. Aubyn v. Smart, 3 Ch. 646 ; Plumerv. Gregory, 18 P]q. 621 ; Cleather v. Tivisden, 28 Ch. Div. 340 ; Atkinson v. MacKreth, 2 E(|. 570 ; Thomas v. Atherton, 10 Ch. I -iv. 185 : M(tr.'ence of agreement to the con- trary, revoked as to future transactions by any change in the constitution of the firm to which, or of the firm in diss'olution by tUe continuing partner to a creditor of the firm being appropriated to discharge tlie partnership debts, see Hooper v. Ktay, 1 Q. B. D. 178. {k) Scarf V. Jurdine, supra. (l) Eoiis'e V. Bradford, etc., Co., A. C. (9-i) 586. (m) ISee supra, p. 582. ()/) lie Head, 2 Ch. (94) 237; compare Bilhorough v. Holmes, 5 Ch. D. 255. (o) Lind. G21 ; Friend v. Young, 2 Ch. (97) 428. I PARTNERSHIP. fil3 respect of the ti'ansactions of which, the guaranty or obliga- tion was given, (p) The mutual rights and duties of partners, whether ascer- s. 19. tained by agreement or defiued by this Act, may be varied Variation of by the c msent of all the partners, and such cotisent may be *i"t'^lr any heritable interest therein has become monev. partnership property, it shall, unless the contrary intention g oo[ appears, (?/) be treated as between the partners (including Conversion, the representatives of a deceased partner), and also as be- tween the heirs of a deceased partner and his executors or administrators, as personal or moveable and not real or heritable estate. (1.) After the commencement of this Act, a writ of execu- S. 23. tion shall not issue against any partnership property except Separate judg-_ on a judgment against the firm. (2.) The High Court, or a "'eut debt;— judge thereof, or tlie Chancery Court of the county palatine uf Lancaster, or a County Court, may, on the application by summons of any judgment creditor of a partner, make an order charging that partner's interest in the partnership property and profits with payment of the amcmnt of the judgment debt and interest thereon, and may by the same or a subsequent order appoint a receiver of that partner's share of profits (whetlier already declared or accruing), and of any other money which may be coming to him in respect of the partnership, and direct all accounts and inquiries, and give all other orders and directions which might have been directed or given, if the charge had been made in favour of the judgment creditor by the partner, or which the circum- stances of the case may require. (3.) The other partner or partners shall be at liberty at any time, to redeem the interest charged, or in case of a sale being directed, to purchase the same. (4.) This section shall apply in the case of a cost-book company as if the company were a part- nership within the meaning of this Act. (5.) This section shall not apply to Scotland. (lu) Gray v. Smith, 43 Ch. Div. 208. A person caiuiot assip:n to another Assignment of tlie right to use a trade name in gross, or iu couuectiou with a business trade name, wiiicli the assignor has never carried on, and in wliich he has no iutereist : Tussaud V. T., 44 Ch. D. 688 ; Thorntlop v. Hill, 1 Ch. (94) 576. {ww) Trego v. Hunt, A. C. (96) 7. See also Jennings v. J., 1 Ch. (98) 378. (x) As to constructive notice that real estate is pai tnersliip property. Constructive se ■ Cavander v. BulteeJ, 9 Ch. 79 ; also supra, pp. 75 76. notice. (y) See Steward v. Blakeway, i Ch. 609 ; Waterer v. W.,15 Eq. 407; Davies v. Gams, 12 Cli. D. 813; A.-G. v. Huhbuck, 13 Q. B. Div. 275; Be Wilson, 2 Ch. (93) 343 ; Myers v. M., 61 1.. T. 757. 616 PARTNEBSHIP. Effect of This section takes away the right which a creditor had section. before the passing of the Act, to levy execution against the goods of a firm for the separate debts of one of the partners, and thereby seriously damage the partnership business. Injunction. An order for the appointment of a receiver under sub-s. 2 operates as an injunction to restrain the co-partners from paying over anything to the judgment debtor, and the latter from receiving anything from the furmer. If the judgment debtor were to receive any money from his co-partners on account of his share in the profits, he could be compelled by a four-day order, and without bringing any fresh action, to pay over the same to the receiver, (z) The section does not, except under special circumstances, entitle the judgment creditor to demand an account of the share of the profits Foreign from the co-partners of the debtor, (a) The section applies l)ar neis up. ^^ ^ foreign firm having a branch house of business in England, (an) Infant partner. Judgment cannot be obtained against a firm, if one of the partners is an infant ; but may be recovered against the defendants other than the infant partner. In like manner a receiving order may be made against the firm other than the infant partner. (&) Protected A charging order under this section is not " a transaction " transaction. protected by s. 49 of the Bankruptcy Act, 1883. (bh) }xecution When a judgment creditor of a fi.rm desires to issue execu- tion against partnership property in the possession of a receiver, his proper course is to apply to the Judge by whom the receiver was appointed for leave to issue execution, notwithstanding the appointment of the receiver ; and on such application, either leave will be given, or in the interest of the partners themselves, an order will be made, directing the receiver to pay or satisfy the debt or claim, so as to avoid a sale by the sheriff, (c) In a somewhat recent case, (d) Kay, J., on the suggestion of Counsel for the partners, gave the judgment creditors a charge for their debt, interest, and costs (including the costs of the applica- (z) Brovm v. Hutchinson, 1 Q. B. (95) 740, 0. A. (a) Ih., 2 Q. B. (95) 12(5, C. A. (aa) Brown v. Hutchinson, 1 Q. B. (95) 737, C. A. (6) Lovell V. Beauchamp, A. C. (94) 607. (bh) Wild V. Southioood, 1 Q. B. (97) 317. (c) MitcheU V. Weise, W. N. (92) 139. (d) Keicneyy. A fir ill, 34 Ch. D. 346. when receiver is in possession. PAB TNERSBIP. 617 tion) on the moneys which were in the hands of or might be taken possession of by the receiver. This order was made on the terms of the creditors undertaking to deal with the charge as the Court should direct. Jt has recently been held (e) that s. 11 (2) of the Bank- Receiving ruptcy Act, 1890 (c. 71), requiring the sheriff to pay over p^j.^|jg^jF.^^ the net proceeds of an execution to the trustee m bank- Bankruptcy ruptcy of a debtor, in the event of a receiving order being ^^^' ^^j!^' made within fourteen days from the levy, does not apply to a receiving order against one of several partners. The interests of partners in the partnership property and S. 24. their rights and duties in relation to the partnership shall Special agree- be determined, subject to any agreement express or implied ™^"*' between the partners, by the following rules : (1.) all the Partners en- partners are entitled to share equally in the capital and ^'^'^"^ >!T^'f profits of the business, and must contribute equally towards ° '^ P ' the losses whether of capital or otherwise sustained by the firm ; (/) (2.) the firm must indemnify every partner in Indemnity. respect of payments made and personal liabilities incurred by him — (a.j in the ordinary and proper conduct of the business of the firm ; (^) or, (b.) in or about anything necessarily done for the preservation of the business or pro- perty of the firm ; (3.) a partner making, for the purpose of Interest on the partnership, any actual payment or advance beyond the advances. amount of capital which he has agreed to subscribe, is entitled to interest at the rate of five per cent, per annum from the date of the payment or advance; (K) (4.) a partner None on is not entitled, before the ascertainment of profits, to in- capital. terest on the capital subscribed by him ; (5.) every partner Management. may take part in the management of the partnership business ; (6.) no partner shall be entitled to remuneration Remuneration. for acting in the partnership business ; (7.) no person may New partner. be introduced as a partner without the consent of all existing partners ; (8.) any difference arising as to ordinary Power of matters connected with the partnership business may be majority. decided by a majority of the partners ; but no change may (e) Dihh v. Broohe, 2 Q. B. (94) 338. Upon the question what is " money paid in order to avoid sale " within the meaning of this sub- section, see Bower v. Hett, 2 Q. B. (95) 3:^7, C. A. (/) It was decided by Lord Eldon m 1809, in Peacock v. P., 16 Ves. 49, that in absence of stipulation to the contrary, parties were entitled to par- ticipate in the profits in equal shares ; and in Re Albion, etc.. Society, 16 Ch. Div. 87 (1880), it was taken by the Court of Appeal to be a settled principle that in the absence of express stipulation, partners must share losses ill the same proportion us they siiare profits. ((/) A partner is not entitled to indemuity in respect of loss incurred by Negligence, his own negligence or wilful default: Thomas v. Atherton, 10 Ch. Div. etc. 185. (7i) See s. 44 b (2), infra. 618 PAETNERSniP. Interest vm cajiital after dissolution. Profits left in business. S. 25. Expulsion of partner. Riilht to carry on business. S. 26. Partnership at will. be made iu the nature of the partnership business without the consent of all existing jiartners ; (i) (9.) the partnership books are to be kept at the place of business of the partner- ship (or the principal ])lace, if there is more than one), and every partner may, when he thinks fit, have access to and inspect and copy any of them. In taking the accounts of a partnership by the Court, interest after the dissolution will not in general be allowed to the partners on their respective capitals, — even though interest with annual rests may have been allowed during the partnership : but this rule- may be varied by the terms of the articles, e.g. by a provision treating the capital left in by a partner as an interest-bearing loan, (y) Where profits are left in the business by one of the partners, he will not, in the absence of special agreement, be allowed interest thereon. {¥) No majority of the partners can expel any partner, unless a power to do so has been conferred hy express agreement between the partners. Partners, in exercising a power to expel a co-partner for misconduct, are bound to act in a quasi judicial manner, and to give to the latter an opportunity of explaining his conduct. (Z) But where the power to expel one paitner was given to the other of two partners, Jessel, M.E., held that it might be exercised by the latter at his own will and pleasure, (m) A partner who has been expelled under a provision in the articles of partnership, and has been repaid his share of the capital, will not be restrained, in absence of special agree- ment to that effect, from carrying on the business on his own account ; {n) but the question whether he can now be restrained from soliciting the old customers of the firm, is not free from doubt, (nn) (1.) Where no fixed term has been agreed upon for the duration of the partnership, any partner may determine the partnership at any time on giving notice of his intention so (0 See Lind., 325. (j) Bar field v. Loiiqhhorough, 8 Ch. 1. (k) Dinham v. Bradford, 5 Oh. 519 ; Binney v. Mntrie, 12 App. 160. (0 Steuart v. Gladstone, 10 Ch. Div. 627; JBarnes v. Youngs. 1 Ch. (98) 414. (m) Russell v. R., 14 Ch. D. 471. (n) Duwuon v. Beeson, 22 Ch. Div. 504. (n«) Compare the two last meutioued cases with Jennings v. J., 1 Ch. (98) 378. PARTNERSHIP. 619 to do to all the other partners. (2.) Where the partnership has ori:reemeiit between the partnen-', S. 33. every partnership is di^Hulved, as regards all the partn rs, '^ankiujitcy, by the death or bankruptcy of any partner. (2.) A partner- ' *'^*''' ^^'^' ship may, at the ojjtion of the other partners, be dissolved, if any partner suflFera his share of the partnership property to be charged under this Act for his separate debt. A provision in a partni-rship deed determining, controlling. Stipulation as or qualifying the interests of any of the partners in the *° ^•'*°'^" partnership property in the event of bankruptcy, — e.g. pro- partner*^ viding any particular mode of ascertaining the share of a bankruj)t partner, and directing that the amount of that share should remain in the business as a loan to the solvent partners, is void, (x) A partnership is in every case dissolved by the happening s_ 34 of any event which makes it unlawful for the business of Illegality. the firm to be carried on, or for the members of the firm to carry it on in partnership. Lord Justice Lindley observes {y) that the two most prob- able events which will cause a dissolution under this section, are a change in the law, and the outbreak of war. A pai-tner may be entitled to an accuunt of profits, although the agreement for partnership contains a collateral and illegal stipulation, e.g. for making bets upon race- horses, (z) On application by a partner, the Court may decree a dis- s. 35. solution of the partnership in any of the following cases : (a.) when a partner is found lunatic by inquisition, or in Dissolution Scotland by cognition, or is shown to the satisfaction of the by the Court to be of permanently unsound mind, in either of which Court; — cases the application may be made as well on behalf of that S™'^'^*^^ for ; partner by his committee or next friend, or person having ^' ^ *^' title to intervene as by any other partner; (a) (b.) when a partner, other than the partner suing, becomes in any other way permanently incapable of performing his part of the partnership contract; (c.) when a ]iartner, other than the Misconduct. partner suing, has been guilty of such conduct as, in the opinion of the Court, regard being had to the nature of (a;) Collins v. Barker, 1 Ch. (93) 578; Ex parte Barter, 2G Ch. Div. 519. ly) Supplement, 11. 85. As to Illegal partnerships generally, see tlie JHognl Companies Act, 1862 (c. 89), s. 4 ; also ISmith v. Anderson, 15 Ch. Div. partuershiiis 247 ; Be Fadstoiv, etc., Association, 2j Ch. Div. 137 ; Jennings v. Ham- mond, 9 Q. B. D. 225 : Shaw v. Benson, 11 Q. B. Div. 5G3 ; Shaic v. Sim- mmis, 12 Q. B. D. 117; Be Tliomas, 14 Q. B. D. 379; Be Hiddall, 2d Ch. Div. 1. (z) TJnvaites v. Coulthwaite, 1 Ch, (9G) 498. (a) Jones v. Lloyd, 18 Eq. 2G5. As to the costs in such case, Bee Jones Costs. v. Welch, 1 K. & J. 7G5, and infra. 622 PAnTSEIlSTlIP. Breach of articles, etc. Business carried on at a loss, etc. Lunacy Act, 1890, s. 119. Injunction. Failure to bring in agreed capital, etc. S. 36. Dealings after change in lirm the biiBincsp, is calculated to prejudicially affect the carrying on of the business ; (d.) when a partner, other than the partner suini];, wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business, that, it is not reasonably piracticable for the other partner or paitners to carry on the business in partnership with him ; (e.) when the business of the partnership can only be carried on sit a loss; ('f.) whenever in any case circumstances have arisen which, in the opinion of the Court, lender it just and equit- able that the partueiship be dissolved. By s. 119 of the Lunacy Act, 1890 (c. 5), power is given to the Judge in Lunacy to dissolve a partner- ship when a member of the firm has become of unsound mind, (h) In a recent case (c) Stirling, J., granted an injunction to restrain a defendant of unsound mind from dealing with the partnership assets, and from issuing bills or notes, or draw- ing cheques in the name of the firm, and from going to or remaining on the business premises, or from in any way interfering with the partnership business. Trifling differences between partners do not afford groimd for a dissolution. The misconduct must be of such a nature as to destroy the mutual coniidence which ought to exist between the partners, ((i) Where a defendant by his statement of defence admitted that he had agreed to enter into partnership with the plain- tiffs, and had been unable to contribute his agieed share of the capital, but denied evasively the terms of the partner- ship, as averred by the jdaintiffs, Jessel, M.E., held that there ought to be a decree for dissolution with an inquiry, if desired b}' the delendant, as to the terms of the airaugement for partnership, (e) (1.) Where a person deals with a firm after a cliange in its constitution, he is entitled to treat all a]>parent members of the old firm as still being members of the firm until he has noti' e of the change. (2.) An advertisement in the London Gazette as to a firm whose principal place of business is in England or Wales, in the Edinburgh Gazette as to a firm (6) See also ss. 116, 341. (c) /. V. /S., 3 Ch. (!)4) 72. (d) Goodman v. Whitcomh, 1 J. & W. 593 ; Smith v. Jeyes, 4 B. 506 Baxter v. Wtst, 1 Dr. & Sui. 173 ; Watneij v. Wells, 30 B. 56; Leary v. Shout, 33 B. 582. (e) Thorp v. Uoldswortli, 3 Ch. D. 637 ; sue ulso s. 39, infra. pAiiTSEnsniP. C2.3 ■whose principal jilaco of business is in Scotlanil, and in the Dublin Gazette as to a firm whose j)rincipal place of l;)l]^siness is in Ireland, sliall be notice as to persoi s who had not dealings with the firm before the date of the dissolution or change so advertised. (3.) The estate of a partner who dies, Dormant or who becomes bankrupt, or of a partner who, not havinji; I'ai'tner, been known to the person dealing with the firm to be a '^j.'" '~':': partner, retires from the firm, is not liable for partnership j^g^t eu- debts contracted after the date of the death, bankruptcy, or " retirement respectively. (/) On the dissolution of a partnership or retirement of a S. 37. partner, any partner may publicly notify the same, and may Rigl't to require the other partner or partners to concur for that "°'^'!^ '^'^' purpose in all necessary or proper acts, if any, which cannot be done without his or their concurrence. It was held some time before the passing of the Act, Retiring that the Court had iurisdicticm to compel a retiiine: Partner bound , , , to sitru notice partner to sign a notice of dissolution for the London Gazette of diksolu- in an action in which no other specified relief was claimed; tion;— costs. and the defendant, who had unreasonably refused to sign the notice, was ordered to pay the plaintiff's costs of the action. (^) After the dissolution of a partnership, the authority of S 38. each partner to bind the firm, and the other rights and Authority obligations of the partners, continue notwithstandins: the ^? P"^l"'^^^ T 1 i- c 1 , • -1 *' 1 of wmding up. dissolution, so tar as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise ; provided that the firm is in no case bound by the acts of a partner who h;is become bankrupt ; but this proviso does not affect the liability of any person who has, after the bankruptcy, represented himself, or knowingly suffered himself to be represented as a partner of the bankrupt. A surviving partner can give a valid charge on property Right of belonging to the partnership, by way of security for a debt s"iviving incurred by the partners during the life of the deceav^ed charo-e partner. Qi) He has also the right to draw cheques upon the assets: — partnership account. (^) *^ leques. Though a partner is not, in absence of stipulation to that Remuneration efiect, entitled to any remuneration for his services, a ^°^ winding up busiuesa. (/) Court V. Berlin, 2 Q. B (97) 396, V. A. Notice is nut required in the cases mentioned iu this sub-section : Carter v. Whallei/, 1 B. & Ad. 11 (dormant partner). (g) Hendry v. Turner, :-52 Ch. D. 355. (70 Re aough, 31 Ch. D. 3-Ji. (0 Backhouse v. Charlton, 8 Ch. D. 144. 624 PAIlTNEBSniP. surviving partner is sometimes entitled to such remuneration, when he (;arries on the business with a view to winding it up or selling it as a going concern ; but no such remuneration will be allowed except out of profits earned by carrying on the s^me. (J) In a recent case (ja) the Court of Appeal Manual allowed to the defendant, in his accounts, the sum of two labour, pounds per week, for skilled manual work, which had proved beneficial to the partnership estate, g 33 Hn the dissolution of a partnership, every partner is Application entitled, as against the other partners in the firm, and all of property. per.-ons claiming through them in respect of their interests as partners, to have the propt-rty of the partnership applied in payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied in payment of what niay be due to the partners respectively, after deducting what may be due from them as partners to the firm ; and fur tdat purpose, any jiartner or his repre- sentatives may, on the termination of the partnership, apply to the Court to wind up the business and atf'airs of the firm. S. 40. Where one partner has paid a premium to another on Apportion- entering into a partnership lor a fixed teim, and the partner- ship is dissolved before the expiration of that term otherwise than by the death of a partnei', the Court may order the repayment of the premium, or of such part thereof as it thinks just, having regard to the terms of the partnership contract, and to the length of time during which the partnership has continued ; unless (a.) the dissolution is, in the judgment of the Court, wholly or chiefly due to the misconduct of the partner who paid the premium, or (b.) the partnership has been dissolved by an agree- ment containing no provision for a return of any part of the premium. The right to relief by directing a return of premium, whether in whole or in part, arises from a failure of the consideration for entering into the partnership. If the partner who has received the premium should afterwards commit a breach of the partnership articles, and himself dissolve the partnership, or render its continuance impossible, the Court will not allow him to take advantage of his own wrongful act, but will direct the restitution of a proper i ion of the premium paid, having regard to the terms of the contract, and to the length of time during which the partner- (i) Re. Aldridge, 2 Ch. (L)-l) 97. ija) Edrris v. Sleep, 2 Ch. (97) 80. ment of premium PARTNEBSHIP. 625 sliip has continued. But, on the other hand, if the partner who has paid the premium is guilty of a like breach of the partnership articles, and. is himself the author of the dissolu- tion, the Court will not allow him to found a claim to the . restitution of the premium upon his own wrongful act. (k) Where a jjartnership contract is rescinded on the ground S. 41. of the fraud or misrepresentation of one of the parties thereto, f'l"''!"^* etc the party entitled to rescind is, without prejudice to any other right, entitled — (m) (a.) to a lien on, or right of retention of, the surplus of the partnershijo assets, after satisfying the partnership liabilities, for any sum of money paid by him for the purchase of a share in the partnership, and for any capital contributed by him, and is (b.) to stand in the place of the creditors of the firm for any payments made by him in respect of the partnership liabilities, and (c.) to be indemnified by the person guilty of the fraud, or making the representation against all the debts and liabilities of the firm. (1.) Where any member of a firm has died or otherwise S. 42. ceased to be a partner, and the surviving or continuing Profits made partners carry on the business of the firm with its capital or f^t^^jj assets, without any final settlement of accounts as between the firm and the outgoing partner or his estate, then, in the absence of any agreement to the contrary, the outgoing partner or his estate is entitled, at the option of himself or his representatives, to such share of the profits made since the dissolution, as the Court may find to be attributable to the use of his share of the partnership assets, or to interest at the rate of five per cent, per annum on the amount of his share of the partnershij) assets ; (n) (2.) provided that where by the partnership contract an option is given to sur- viving or continuing partners to purchase the interest of a deceased or outgoing partner, and that option is duly exer- cised, the estate of the deceased partner, or the outgoing partner or his estate, as the case may be, is not entitled to any further or other share of profits ; but if any partner assuming to act in exercise of the option, does not in all material respects comply with the terms thereof, he is liable to account under the foregoing provisions of this section, (o) (li) Atwood V. Maude, 3 Cb. 372; Wilson v. Johnstone, 16 Eq. GOO; Blneh v. Capstick, 12 Ch. D. 863; Lyon v. Tweddell, 17 Ch. Div. 531; Edmonds v. jRobinson, 29 Ch. D. 170. (m) See Mycock v. Beatson, 13 Ch. D. 384. In) Vy^e v. Foster, L. R. 7 H. L. 329. io) Uunter v. DoioUwj, 2 Ch. (95) 223. 2 S 626 PARTNERSHIP. Specific per- f«nnance of agreement for pur- chase ; — annual balance sheet, etc. Specific per- formance of agreement to dissolve. S. 43. Retiring partner's share, etc. The Court of Chancery had, and the High Court still has power to compel specific performance of an agreement for the purchase by one partner of the share of his co- partner at the expiration of the partnership term, even though the price is to be ascertained by arbitration, (p) The County Court has the like jurisdiction, but subject to the statutory limit of £500. In a recent case (5) partnership articles provided for annual accounts and balance-sheets to be taken and made on the 31st March in each year, or as near thereto as conveniently might be, and to be signed by the partners ; and that the share of a deceased partner should be taken by the surviving partners at the amount appearing to his credit in " the last anntial balance-sheet which should have been signed previously to his death." A partner died on the 10th April, 1891, at which time no account had been taken for the year ending on the 31st March, 1891. It was held by the Court of Appeal that the amount of the deceased partner's share must be determined according to an account to be taken for the year ending on the Slst March, 1891, and not according to the balance-sheet for the year before, which was the last annual balance-sheet actually signed by the partners. The High Court has also power to enforce specific per- formance of an agreement for the dissolution of a partner- ship ; and the costs of an action for that purpose will, in general, follow the event. If the agreement be that one of the partners shall retire from the partnership, this will imply an obligation on his part to assign his share in the partnership assets in their existing state, to the continuing partners, and a right to indemnity against the partnership debts and liabilities, (r) Subject to any agreement between the partners, the amount due from surviving or continuing partneis to an outgoing partner, or the representatives of a deceased partner, in respect of the outgoing or deceased partner's Effect of offer to sell. Option to purchase share. Cp) Dinham v. Bradford, 5 Ch. 523 ; and see supra, p. 470. iq) Hunter v. Doiding, 3 Ch. (93) 212, C. A.; Jix parte Barber, 5 Ch. 687. As to the eflfect of an offer by a retiring partner to 8<_11 his share made in exercise of an option given by the partnershij) articles, see Homfray v. Fothergill, 1 Eq. 567. As to tlie necessity for strict compliance with the terms on which at option to purchase the share of a deceased or retiring i>artner is to be exercised, see Vyse y. Foster, L. R. 7 H. L. 329, supra, p. 462. (r) Gray v Smith, 43 Ch. Div. 220 ; Me Daniel, 75 L. T. 143. PARTNERSHIP. 627 share, is a debt accruing at the date of the dissolution or death, (s) In settling accounts between the partners after a dis- S. 44. solution of partnership, the following rules shall, subject to Ili'^tr't'utiou any agreement, be observed : (a.) losses, including losses ° and deficiencies of capital, shall be paid first out of profits, next out of capital, and lastly, if necessary, by the partners individually in the proportion in which they were entitled to share profits : {t) (b.) the assets of the firm including the sums, if any, contributed by the partners to make up losses or deficiencies of capital, shall be apjolied in the following manner and order : 1. in paying the debts and liabilities of the firm to persons who are not partners therein : 2. in paying to each partner rateably what is due from the firm to him for advances as distinguished from caj)ital : 3. in paying to each partner rateably what is due from the firm to him in respect of capital : (m) 4. the ultimate residue, if any, shall be divided among the partners in the proportion in which profits are divisible. In ascertaining the profits of a business, the value of the Accounts ;— partnership property is to be found, and the original capital P° ^ *" with interest thereon, (if necessary) is to be deducted ; the residue will represent the profits, (v) Advances should be distinguished from capital. No Distinction interest is payable on capital in absence of stipulation to ^•^''^'^^'^ , , capital and that effect ; (w) but by the custom of merchants, interest advances. was payable on advances before the Act. The interest was, subject to any agreement between the partners, at the rate of 5 per cent, per annum ; but an agreement for a different rate might be inferred from the custom of a particular trade, (x) All the property belonging to the partnership must, in Winding- absence of special agreement, be sold and the proceeds "P ;— sale. of the sale, after discharging all the partnership debts and liabilities, should be divided among the partners, according (s) Knox V. Gye, L. R. 5 H. L. 656. As to the mode in which interest Interest on ought to be calculated on the capitfil of a deceased partner made payable capital ; — by instalments, see Ewing v. E., 8 App. 822 (construction). instalments. (t) See Upton v. Brown, 26 Ch. D. 588 ; Gow v. Forster,ib. 672 ; Binney V. Mutrie, 12 App. 160. (m) See Wood v. Scoles, 1 Ch. 3r9 ; Noimll v. N., 7 Eq. 541 ; Binney v. Mutrie, 12 App. 160 ; Yates v. Finn, 13 Ch. D. 839 ; Lind., 600 ef seg. (v) Dinham v. Bradford, 5 Cii. 519 ; see also Luhhoclc v. British BJc. of S. America, 2 Ch. (92) 202 ; Bolton v. Natal, etc., Co., ib. 124 ; Wilmer v. McNamara, 2 Ch. (95) 245 ; Bishop v. Smyrna, etc., Co., ib. 265, 596; Tie New Transvaal Co., 2 Ch. (96) 75 i. (w) See s. 24 (4). (x) See Lind., 391, and cases there cited. 2 S 2 628 PAItTNERSHIP. Pai'tnersliip to execute contract. Uncompleted contracts. Sale as a going concern. Defences to action ; — no partnership. Arbitration Act, 1889, s. 4. Receiver. Statute of Limitations. to their respective shares in the capital ; (jj) but if the partnership has been entered into in order to execute a particular contract, then on the death of one of the partners, the contract should, where the circumstances admit, be com- pleted, in order to ascertain the amount of profit to which the surviving partners and the representatives of tbe deceased partner are entitled respectively ; (z) but where part of the assets of a partnership consisted of a Government contract entered into in the name of one of the partners, and containing a proviso against alienation, it was held that, upon a dissolution of the partnership, the partner in whose name the contract was taken, and who continued to carry it on, ought to be debited in the accounts with its value, to be ascertained by a reference to Chambers, (a) Even where articles of partnership expressly provide for a division of assets on dissolution, the Court has jurisdiction, in an action for winding up the partnership, to direct a sale of the business as a going concern, and will do so when that is the most beneficial mode of realization. (6) A defence by no means unusual to an action for an account and dissolution is that the plaintiff is not a partner at all. Such a defence, if proved, is an answer to the action. The defences to an action for account in general mentioned in the previous Chapter, are applicable to an action for the taking of an account of the dealings and transactions of a partnership ; and the reader is referred thereto. But it should be here mentioned that the mere fact that it may be necessary to appoint a receiver of the partnership assets, will not of itself prevent the Court from making an order, under s. 4 of the Arbitiation Act, 1889 (c. 49), staying proceedings in the case. If it is necessary to make such an appointment, it may be made accordingly ; and all proceedings in the action may be directed to be stayed, except for the purpose of giving effect to the order for the receiver, and with general liberty to apply, (j?) The right to have a partnership wound up by the Court is subject to the limitation of six years imposed by the Statute of 21 Jac. 1, c. 16, as qualified by the Mercantile {y) Steward v. Blalceway, i Ch. ^09 ; Burdon v. Barhus, 4 D. F. & J. 49. (z) McGlean v. Kennard, U Ch. 336. (a) A)tibler v. Bolton, 14 Ei). 427. (h) Taylor v. Neate, 39 Cli. D. 538. (f>) Pint V. Boncoroni, 1 Oil. (92) 033 ; Law v. Garrett, 8 Ch. Div. 2G. PAETNERSEIP. 629 Law Amendment Act, 1856 (c. 97), s. 9, The Statute has no application to a claim between the partners, so long as the partnership continues, (s) But it begins to run from the time when the partnership has ceased, even though assets which would have been comprehended in a general account of the partnership transactions, have been received within six jears before the commencement of the action, (t) Section II. — Parties, Special points of Practice, and Costs. The general rule as to parties to actions for dissolution General rule and an account of the partnership dealings, is that all the ^^ '° parties. partners within the jurisdiction must be parties. The representatives of deceased partners must also be parties, if they have any interest in the partnership accounts, (y) But although in an action for obtaining payment of a pro- shares in portion 'of an unascertained sum, all the persons interested ascertained in that sum must, as a general rule, be parties, yet, where '^ the sum to be divided is ascertained, and the shares into which it is to be divided are also, ascertained, an action for the payment of one of those shares may be maintained, without making the persons interested in the other shares parties, (w) The proceedings in a partnership action up to the trial, Jud. Act, and the mode in which the accounts are taken before the 3.^'^' ^•;^''''T • 11 T ■ ^ ■ / \ <^i)uut)' Court Master are substantially the same as m other actions, (a;) jurisdiction. It has already been mentioned that the taking of partnership or other accounts is, by s. 34 of the Judicature Act, 1873, assigned to the Chancery Division. But by s. 67 of the County Courts Act, 1888, c. 43, a County Court Judge has, and may exercise, all the powers and authority of the High Court in actions fur the dissolution or winding up of any (s) Barton v. Nortli, etc., Co., 38 Cb. D. 463. As to the circumstances Payment of under which a retiring partner will be disentitled to the benefit of the interest ; — Statute of Limitations (under the Mercantile I^aw Amendment Act, 185G, 19 & 20 Vict. c. 97, 8. H), on pnyment of interest on a debt by the continuing partners, c. 97, s. 14-. see Re Tucker. 8 Ch. (94) 429, C. A. (e) Knox V. Gye. L. E. .5 H. L. 673 ; Be Sharpe, 1 Ch. (92) 166. Com- pare Noyes v. Craivleij, 10 Ch. D. 31, where a balance had been, in the final account "f a dissolved partnership, admitted to be due to the plaiutifi"; see also s. 43 of the Partnership Act, 1890, aupra. Upon tiie Laches, question wlien laches will alt'ord a good defence, see Lind., 469 et seq. ; Barber v. Mackrell, 12 Ch. Div. .544; and as to laches iu cases of fraud or mistake, and jienerally, see supra, pp. 532, 533. (v) Lind., 463. . (w) lb. ; see also s. 43, supra. (x) Hee supra, p. 443. 630 PARTNERSHIP. partnership tlie whole property, stock, and credits whereof do not exceed iu amount or value the sum of £500. Interlocutory It will, liowever, be necessary in some cases, to apply to ^q.ptications. ^^g Qonxi before the trial for an injunction, for the appoint- ment of a receiver, or of a receiver and manager, or for an order directing the payment of money into Court ; and when an injunction has been granted before the trial, it will, if the circumstances so require, be made perpetual at the trial. MisconiUict ;— The Court will grant an injunction to restrain the breach lujuuctiuu. 1^^, ^ partner of any of the stipulations contained in the articles of partnership, when the breach is so important in its consequences as to entitle the party complaining to a dissolution. An injunction will also be granted on the ground of misconduct independently of contract ; but the misconduct must, in such case, be of such a nature as to destroy the mutual confidence which ought to subsist be- tween the partners, (a) An injunction will be granted where a partner raises money on the credit of the partner- ship for his own private purposes. (6) Carrying on Where articles of partnership provide that the business ihi'e'not^'^ shall be carried on at such place as the partners may agree agreed upon, upon, one of the partners will as a rule, be entitled to an injunction which will in effect restrain the other partner from carrying on the same at a jilace not agreed upon, if he should attempt so to do. (c) Collecting The Court will also grant an injiinction to restrain a debts, etc. partner from collecting debts due to the partnership, or intermeddling with the assets thereof, where he has shown himself unfit to be trusted therewith, and when the circum- stances so require, to restrain him from negotiating bills of exchange or promissory notes, {d) When receiver If the partnership has been dissolved, the appointment of dissolved ' ^ receiver is almost a matter of course, (e) The appointment partnership, will be made against a partner guilty of a breach of duty, or (a) Smith V. Jeyes, 4 B. 50G ; Goodman v. Wliiteomh, 1 J. & W. 593. (h) Marshall v. Colman, 2 J. & W. 268. In Hall v. IL, 3 M. & G. 81, an injunction was granted restraining the defeuilant from applying any of the moneys and efl'ects of the partnership otherwise than in tiic ordinary business thereof, and also from obstructing or interfering with tiie phdntilf in the exercise of his rights under the articles. (c) Qeme.nfs v. Norris, 8 Cli. Div. 12^. (d) ILiod V. Aston, 1 Euss. 412. («) Liud., 534, ajjproved by Stirling, J., iu I'ini \. Eoncoroni, 1 Ch. (02)037. PARTNEBSIIIP. 631 of the partnership contracf, as by continuing to trade with the joint effects on his separate account. (/) When the partnership is subsisting, a special case for the Partnership appointment of a receiver must be made : and the Court is subsisting. often placed in some difficulty when an application is made for that purpose. On the one hand, if it grants the applica- tion, the effect is to put an end to the partnership which one of the parties may claim a right to have continued ; and, on the other hand, if it refuses the application, it leaves one partner at liberty to go on with the partnership business, at the risk, and perhaps to the great loss and prejudice of the dissenting party. (Ji) The appointment will be made against Exclusion. partners who seek to exclude any of their co-partners from a just share in the management of the business ; {%) or against Breach of partners guilty of such serious breaches of the articles as ^^'^'icles. would entitle another partner complaining to a judgment for dissolution ; (_/) or of misconduct of such a nature as to other mis- destroy the mutual confidence which ought to subsist '^ou'^uct. between the partners ; (Jc) or against a partner who has been guilty of such fraud or misrepresentation as would enable Fraud, etc. the party complaining to have the partnership contract rescinded ; (Z) also where partnership assets have been lost by breach of duty by partners or other persons having the control of the partnership property, (m) The appointment Case for dis- will not in general be made before the trial, unless a dissolu- s'^'"^'°'^ 5 T • • / ^ T • onus. tion is claimed in the action ; (n) and moreover the moving party must show a prima facie case for obtaining a dissolu- tion at the trial, (o) The representative of a deceased partner is not entitled. Death or in absence of some special reason, to have a receiver ap- ^'•'^''"ptcy. pointed against the sole surviving partner ; (p) but the rule is otherwise when all the partners have died, {q) The sur- viving partner is entitled as of course to have a receiver appointed against the representatives of a deceased partner, (/) Harding v. Glover, 18 Ves. 281. Qi) Madgwich v. Wimhle, 6 B. 500. (i) Wilson V. Greenwood^ 1 Sw. 481. 0") See s. 35 (d) of the JPartnership Act, 1890, supra. (Ji) Smith V. Jeyes, 4 B. 606 ; Goodman v. Whitcomh, 1 J. & W. 593. (I) See s. 41, supra. (m) Evans v. Coventry, 5 D. M. & G. 918. (n) Roberts v. Eberhardt, Kay, 148. (o) Baxter v. West, 28 L. J. Ch. 1(J9. (p) Davis V. Amer, 3 Dr. 64. (q) Fhilips V. Atkinson, 2 Bro. C. C. 272. 632 PARTNERSHIP. or against the trustee of a bankrupt partner who improperly interferes with the collection by the solvent partner of debts due to the firm ; (r) and the representative of a deceased partner will be entitled to have a receiver appointed against the surviving partner, if he insists upon wrongfully carry- ing on the business with the assets of the deceased partner, («) or is gviilty of undue delay in winding up the business, (t) Rigiit of When one of several partners becomes bankrupt, the solvent partner gQivgj;^^ partner is entitled to wind up the partnership to wind up. _ •■■ I r i. affairs; and the usual course where disputes as to the management of the partnership affairs arise between the trustee of a bankrupt partner and the solvent partners, and there is no reason for distrusting the latter, is for the Court to apj)oint one of such partners receiver of the partner- ship property, directing him to give security, to pass his accounts, and to furnish proper accounts to the trustee, and allow him at all reasonable times to inspect the partnersbip Infant partner, books. (?i) The rule is Otherwise when the only solvent partner is an infant, (uu) Partnership The Court will not in general appoint a receiver before disputed. ^i^g trial when the existence of the partnership is disputed, {v) Plaintitr When it is important that the carrying on of the business lecenei, e c. gj^ould not be interrupted, the Court will sometimes, where the special circumstances justify such a course, allow the plaintiff to carry it on until the receiver be appointed, he undertaking to proceed with all possible speed to obtain the appointment, or will give the plaintiff or moving party leave to propose himself as receiver ; but neither of these courses will be adopted except under very exceptional circumstances, if the defendant or respondent objects, (lo) (r) Freelnnd v. Stansfeld, 2 Sin. & G. 483 ; compare Fraser v. Kershaw, 2 K. & J. 490. (s) Madgivich v. Wimble, 6 B. 495. (0 Bakiinii v. Booth, W. N. (72) 229. («) Collins V. Barker, 1 Ch. (93) 584, approving of statement in Lind., 5th ed., p. 670. In this case the solvent partner was appointed both Remuneration, receiver and mannger; and it was directed that his remuneration should be settled in Cliambers. (mm) Be Beauchamp, 75 L. T. 315. (v) Fairburn v. Pearson, 2 M. & G., 144 ; Peacock v. P., 16 Ves. 49 ; Chapman v. Beach, 1 J. & W. 594; Rock v. Mathews, 2 D. G. & Sm. 227; Walker v. Hirseh, 27 Ch. Div. 46l). liiit see Lonfjbottom v. Woodhead, 83 Ij. T. Jo. 423, where Charlfs, .J., as Vacation Judge, continued an injunc- tion, and directed a reference to Chambers for the appointment of a receiver, on the ground that the partnership assets were in jeopardy. (<«) lie Lloyd, 12 Ch. Div. 451 ; see also Pini v. Roncoroni, 1 Ch. (92) 638 ; Collins v. Barker, 1 Ch. (93) 584. PARTNERSHIP. 633 The effect of appointing a receiver is to stop the business Effect of of the partnership. The receiver collects the debts and sells i^gcl"'" r."^ the stock and other assets ; and then under the order of the Court, the debts are liquidated, and the balance divided between the partners. If it is desired to contiuue the trade Manager, at all, it is necessary to appoint a manager or a receiver and manager. He can buy and sell and carry on the business, {x) Personal and he is, as a rule, personally liable under contracts entered ^^ i ity o • into by him. (^) When in cases other than those of bankruptcy, no imputa- Partner ap- tion is made against the only partner actually carrying on PO'"ted ^^^^ the business, he will in general be appointed receiver and out salary. manager, but in most cases without salary, (z) The manager need not necessarily be the same person as the receiver ; but it is in general a saving of expense that the person appointed receiver should also be the manager. The Court will appoint a receiver and manager where it is necessary so to do, in order to preserve the assets, e.g. where the business has to be sold as a going concern, and there is a considerable amount of stock to be w^orked up for the purpose of sale, or where there are works to be executed according to existing contracts, (a) If any difficulty arise Difficulty ; — in the management, e.q. as to payment of wages, or the '"^Ppl'^ation to , . n -i i I P 1 • , the Court. making of purchases for the purpose oi completing the contracts, the plaintiff or party at whose instance the manager has been appointed, should apply to the Court with a view to the protection of the manager. (6) A receiver has no powers which the party at whose in- Powers of receiver ; — (i) Re Manchester, etc., Co., 14 Ch. Div. 653. In Bailey v. Ford, 13 shares. Sim. 495, the affairs of a partnership being hopelessly embarrassed, and g^-jje before daily growing worse, the Court, on motion before the Jiearing, appointed trial. a person to sell tlie business, to collect the debts due to and to satisfy the demands on the partnership. {y) Bart v. Bull, 1 Q. B. (95) 276. Compare Gosling v. Gaskell, A. C. Trustees for (97) 575, reversing the decision of the Court of Appeal, as to the liability debenture of trustees for debenture holders, under a covering deed, for goods ordered holders, by a receiver appointed by them ; and as to the liability of a committee Committee of appointed to carry on a lunatic's business, see Isaacs v. Chinery, 74 lu^atic L. T. 320. (z) See observations on s. 38 of the Partnership Act, 1890, supra, p. 623. (a) Taylor v. Neate, 39 Ch. D. 538. (b) lb., where it was by consent ordered that the manager to be appointed should not enter into new contracts involving a liability of more than £200 without the consent of the partners, or the sanction of the injemnitv to Judge. As to the right of a receiver and manager of a company in ..ppp^.-yj. gtc liquidation to 1)6 indemnified out of the company's assets, see btrapp v. ' Bull, 2 Ch. (95) 1, C. A. 634 PARTNERSHIP. stance lie has been appointed cannot exercise ; and therefore the Court cannot, in absence of special authority from the co-partners or evidence of a special course of dealing, confer on the receiver power to accept shares in a company (even though fully paid up) in satisfaction of a debt due to a partnership firm, (c) Receiver, etc., The Court will not in general appoint a receiver and to wind up'-- nianager except with a view to wind up the partnership interim busincss. An interim receiver and manager may, however, receiver. i^^ appointed before the trial,' even where no dissolution is claimed, if such a course is necessary in order to prevent the misconduct of one of the partners from destroying the business, {d) When applica- An application for a receiver, or for an injunction may, if tion may be ^-j^g right thereto is incident to or arises out of the relief niade by , , defendant. sought in the action, be made either by the plaintiff or the defendant before the trial. In other cases a de- fendant must, before making any such application, either deliver a counterclaim, or commence a fresh action, (e) The application may be made by the defendant in the original action, notwithstanding that the plaintiff has already served notice for the like purpose ; and in such case one order will be made on the two applications ; but the conduct of the proceedings will in general be given to the plaintiff. (/) Effect of ap- The appointment of a receiver of the partnership assets pomtment ; operates as an iniunction ; and restrains all the partners injunction, etc. J^ . . '' ... , t from receiving money which the receiver is intended to get in, and from interfering with the business, {g) Hence the misconduct of one partner may afford ground for the granting of an injunction, though no case be made out for the appoint- ment of a receiver ; so that it is sometimes more difficult to obtain the appointment of a receiver than an injunction against one of the partners. On the other hand, there may be cases where the Court will hesitate simply to grant an injunction restraining one of two partners from intermeddling with the business ; for the result would be to leave the (c) Niemann v. N., 43 Ch. Div. 198. (d) Hnll V. H., 3 M. & G. 91. (e) Carter v. Fey, 2 Ch. (94) 541. (/) O. 50, r. 6 ; Sargant v. Bead, 1 Ch. D. 600. (g) Baxter v. West,' 28 L. J. Ch. 169; Helmore v. Smith (No. 2), 35 Ch. Div. 454 ; Ee Sartoris, 1 Ch. (92) 22 ; Bruwn v. Hutckinson, 1 Q. B. (95) 739. PARTNERSEIP. 635 assets under the sole control of the other partner. The Court is more likely, under such circumstances, to appoint a receiver than to grant an injunction. Where partners or other persons standing in a fiduciary Injunction and relation have misconducted themselves, the Court may grant receiver, an injunction as well as a receiver in order to mark its sense of such misconduct, (li) A partner will not as a rule, be ordered, upon an inter- Payment of locutory application, to pay into Court a sum of money ^alance mto admitted to have been received by him, if he insists that the ultimate balance will be in his favour; but the case is otherwise as to moneys collected by him contrary to good faith. (y)_ The simplest form of judgment pronounced in an action Form of for a partnership account, directs that an account be taken jui'gmeut. of the partnership dealings and transactions between the plaintiff and the defendant from a given date, and that the amount which, upon taking such account, shall be certified to be due from either of the parties to the other of them be paid by the party from whom to the party to whom the same shall be certified to be due, and gives liberty to apply. Qc) The judgment for dissolution and accounts (where there are only two partners) usually contains a declaration that the partnership subsisting between the plaintiff and the defendant ought to be dissolved as from a day named ; an account is directed of all dealings and transactions between the plaintifi" and the defendant, and an inquiry of what the assets of the partnership consist, with a direction that no settled account is to be disturbed, also for a sale of the assets, and if necessary, of the goodwill of the business as a going concern, but giving liberty for proposals to be made in Chambers for the purchase of the business by either party, and reserving further consideration, with liberty to apply. (Z) These provisions are however moulded by the Court to meet the circumstances of each particular case ; and if the interest laterest of oue of one partner in the business is but small, an inquiry may party small. be directed what sum would represent the value of the Qi) Evans v. Coventry, 3 Dr. 82; 5 D. M. & G. 911. ( /) Foster v. Donald, IJ. & W. 252. (h) Lind., 518. (0 Syers v. S., 1 App. 183. 636 PARTNERSHIP. business (after deducting all charges thereon, and liabilities in respect thereof) if sold as a going concern. If that sum should be paid, a sale may be avoided, (m) Date of If the partnership has not been dissolved before the trial, the date of the dissolution will be the day when the judg- ment is pronounced, and not the day of the issue of the writ, (n) If the dissolution has already taken place, and the circumstances so require, the declaration may be that the partnership was dissolved on a specified day before Partnership the judgment, (o) If the partnership has been denied by ^"'^ ■ any of the partners, the declaration as to dissolution should be preceded by a declaration to the effect that a partnership was in fact constituted between the partners. Terms'cf It is the duty of the Court, when dissolving a partnership dissolution ; ^^ equitable grounds, to decide upon what fair terms the prGniiuni, ±. o x. dissolution should be made ; (jp) and these terms should include a direction for the return of the premium paid by any partner, if the circumstances so require, or such part thereof as the Court may think just. If no such direction be given at the trial, it cannot in absence of very special circumstances be given afterwards, (q) General rule as The costs of a partnership action are in the discretion of to costs. ^Q Court ; and they are, as a rule, payable out of the partnership assets, as in the case of an action for adminis- tration ; (s) but if the assets are insufficient, then the costs must be borne by the partners in proportion to their shares Priority of in the profits, {t) If, h(}wever, a balance be found due from balance due to^ ^-^^ ^^.^ ^^ ^^^^ q£ ^j^g partners, it must be paid out of the partner. . . . ••• ' • / rr-i assets m priority to the costs of the action, (u) These rules (m) lb. (ji) Lyon V. Tweddell, 17 Ch. Div. 529. Notice to l*^) ^^^ Jones v. Lloyd, 18 Eq. 271, where it was held that a notice to dissolve • dissolve cannot be withdrawn without the consent of the partner to whom withdrawal of ^* ^'^^ been given ; also s. 26 of the Act of 1890, supra. ( p) Lyon V. Tweddell. 17 Ch. Div. 531 ; BeJfield v. Bourne, 1 Ch. (94) 524. Add'fo 1 ^1^ Edmonds v. Rohinson, 29 Ch. D. 170. As to the jurisdiction of • • . '. the Court to add to a judgment for tlie administration of the estate of a . 1 • • t ' f deceased partner inquiries as to partnership dealings, and as to the form action-— f d "^^ such inquiries, see Barber v. Machrell, 12 Ch. Div. 536, 552 (moneys ' * fiaudulcntly retained). (s) Ilamer v. Giles, 11 Ch. D. 942. The old rule was to allow no costs up to the hearing. Since the decision of that case the general rule above stated applies to the whole of the costs, both up to the trial and subsequently thereto. (t) Ilamer v. Giles, supra. (m) Fatter v. Jackson, 13 Ch. D. 845 ; Boss v. White, 3 Ch. (94) 326. PARTNERSHIP. G37 apply to an action for dissolution on the ground of permanent Ins-inity. insanity. («) Where a partnership action has been rendered necessary Misconduct. by the negligence or other misconduct of a partner, the Court will order that partner to pay the costs of the action, so far as they have been occasioned by his misconduct, including the costs up to the trial. («o) But the mere fact Unsuccessful that a particular application, e.g. a summons to vary the ^application. Master's Certificate, has been unsuccessful, will not prevent the Court from ordering, if it should consider it just and proper so to do, that the costs of all parties to the application be included in the general costs of the action, and be paid out of the estate, (x) (v) Jones V. Welcfi, 1 K. & J. 765. {w) Earner v. Giles, 11 Ch. D. 942 ; Norlon v. RusseJJ, 19 Eq. 343. In Failure to this latter case a defendant who had failed to furnish an account after being account, requested in writing so to do, was ordered to pay the costs up to the hearing, though the bill did not allege that anything was due to the plaintiff; but the answer did not allege that nothing was due. (x) Butcher v. Pooler, 24 Ch. Div. 273. ( G38 ) INDEX. ABANDONMENT OF CLAIM, 5G7, n. ABATEMENT. See LecxAcies. "ABSOLUTELY EN TTl'LED," persons becoming, 101. ABSTRACT OF TITLE, 461. See Vendor and Pukchasek. ACCEPTANCE. See Bill of Exchange. covered, 599-601. of trust, 36 ACCIDENT, 546-560. See Defective Execution of a Powek, Lost Ikstru- MENTS. apprentice, return of premium, 546. destruction of subject-matter of contract, 546, 547. personal service or skill, 546. ACCOUNT, 585-592. ^'ee Partnership. allowances, 528. appropriation of payments, 594. banker and customer, 586. costs of, 52, n. defences to action for, 587-590, 628. direction for, 403, 441. election, for purpose of, 126. executors or trustees, against, 52, 71, 83, 212. foreign currency, payment in, 587, n. interest, of, 618. joining different claims in, 361. jurisdiction, 585-587. making out and verifying, 442. mortgage, of, 403, 441, 443, 445. mortgagee, by. See Mortgagee. parties to attend on taking, 562, et seq. partition for, 359, et seq. persons not parties sharing profits, by, 605. principal and agent, 586 refusal, etc., to render, 52. release, 49, 589. settled or stated, 403, 588. stay of, 440, n. summons to proceed, 443. surcharge and falsify, liberty to, 403, 588. trustees', limitation as to, 80. vouchers for, 298. INDEX. 639 . ACCUMULATION, TRUSTS FOR ETC '39 ?48 94o o^^ interest in case of, 57 24^ ' ' ^' ^^^' 2^^- ACQUIESCENCE, ^e; Laches. of bdquest by lunatic, 106. ADMINISTRATION ]fi4-9i« e,. a — conversion of, 216. — legal and equitable, 166, et sea., 171, 181 — marshalliug of, 206. — order of application of, 182-191 — right to follow, 212, 214, 218. business, carrying on, 54, n'., 55 "n.. 210 211 conversion, trust for, 187 ' ' ' '-'■• costs of, 170, n., 172, 3H9. creditor, preferring, 179-182. debts in, 166, et seq., 212, ^13 — charge of, 173-179. — exoneration from, 184-191 — getting in, 44, 51, n., 216." — order of payment of, 171. — retainer of, 179-182. — specialty, 167-171, " — trust for, 172, 173, n., 180. teir by, 165, 170. — liability of, in, 167, 207 insolvent estate, of, 191-193, 406 interest, payment of, in, 196, et sen. 213 judgment for, effect of, 181, 217 jurisdiction as to, 164. ' ' ' " legacies and annuities, of, 192, '?01 Land Transfer Act, as to, 165, 178 Limitation, Statutes of, as to, 165, 172, 173 loa 212 9Tn married women, of, 173. '-> -^'-5, i,«, Zi/J, 215. mortgage debt, liability" for, 188-190 partner deceased, of, 608, 631, 636 n' receiver in, 218. refunding, 213^ 214. testamentary expenses 170 ADMINISTRATOR. SeeExEcvTou powers of, 177, 181. ^^^uior. retainer by, 181, 182. ADVANCEMENT. See Ikfant, Satisfaction annual allowances are not, 144 ►^^^^•^1' action. declaration as to, 33. resulting trust, or, 33. Statute of Distributions, under 144 — interest on, 144 ' * ■ , ADVERTISEMENTS, 69, 217 S'^O 341 "4" qr7 injunction against, 320. ' ' ' "^^' ^'^^• ADVOWSON. mortgage of, 403. trust to pnrchase, 105 AFFIDAVIT, 444, n., 497. 551. 640 INDEX. AFTER- ACQUIRED PROPERTY. See Coveijant. AGENT. See Executor, Fiduciaky Relation, Fraud, Power of Attobnet. authority of, ratification of, 515. — warrant}' of, 511. constructive trustee of profits, 35. contract with, 455, 508, et se.q. Debtors' Act, liable under, 77. estate, authority of, 456. followino; funds misapplied by, 72. fraud or misrepresentation by, 515. Sec Fraud. indemnity by principal, 493. liability of principal for, 402, 408, 513. — of, to account, 586. liable only to his principal, 65. mixing up principal's money with his own, 70. parol appointment of, 455. party to action, when, 65. purchase by, 5, n. selling his own property, 525. undisclosed principal, for, 578. AGREEMENT. See Contract, Vendor and Purchaseb. to create a trust, 11, 12. — leave personal property, 158-163. — settle land, 155-158. See Covenant, Trust. AIR, 310, n., 318, 319, ALIENATION, RESTRAINT ON, 200, n. AMENDMENT. particulars of, 355, n. proof in bankruptcy, of, 536, n. ANNUAL RESTS, 64, 403, 442. ANNUITY, 198-201. 6'ee Legacy. additional or substituted, 149. ademption by, 132. apportionment of, 598. arrears of, interest on, 198, 201, n. assets insufficient to pay, 191, 200. capital charged on, when, 201, n. — value of, right to receive, 200. covenant to leave, 161. duty and income tax, when free of, 198, n. investment to jirovide for, etc., 199, 200, n. life, for, or perpetual, 199, 200. Limitation, Statutes of, 198, 199. realty charged with, 14, 178, 179, 198, 199, 201, n. sale of property, subject to, 179, 201, n. APPEAL. married women, by, 233. right of, 80, 545. APPOINTMENT, 159, 163, n. See Power. APPORTIONMENT. Act, 1870. .597, 598. of sale moneys, 47, n. APPRENTICESHIP DEED, 292. See Injunction. APPROPRIATION OF PAYMENTS, 71, 484, 594-598, 611, n. bills of exchange, to meet, 599. INDEX. 641 APPKOPRIATION OF PAYMENTS— con^wMe^^. interest, payments in discharge of, 596. Limitation, Statutes of, 597. APPROPRIATION OF SECURITIES, 599-601. "APPURTENANCES," 316, 470. ARBITRATION, 470, 587, 592. agreement to sell at price fixed by, 470. case for opinion of Court, 591. injunction to restrain, 591. misconduct of arbitrator, 591. staying action and compulsory reference, 589, 590, 628. ASSETS, 166-172. See Administeation, Dkbts, Partnership. admission of, 217. conversion of, see Conversion. debts, order of application for, 166, 182. — priority of, 170-172. follow right to, 35, 36, 70, 71, 82, 180, 212-214, 610. — laches disentitling, 212, 213. investment of, 214. legal and equitable, 86, 166-172, 181, 182. ASSIGNMENT. See Chose in Action, Trust. absolute, what is, 599. judgment, after, 594, n. license for, 275. notice of, 287. See Notice. subject to equities, 593, 594, 598, 599, 620. " ASSIGNS," 288, n. ATTACHMENT, 76-80, 452. See Contempt, Execution, Trustee. ATTORNEY, POWER OF, 49. ATTORNMENT, 394. AUCTION, 509. AUCTIONEER, debtor, 77. mortgagee, 387. signature of, 453, n. tmstPG 4-1 BALANCE ORDER, 171, n. BANK, action for account, 586, 596. of England, authority to apply to, 52. paying forged cheque, 517. transfer of account, 612. trust money placed in, 48, 60, 72, 82, 593, n. BANKRUPTCY. See Fraudulent Settlement, Lunatic. act of, 21. assignment of future payments, 594, n. bankrupt trustee, 71, n. — vendor, etc., 481, n. breach of trust, 21. court in which transaction should be impeached, 24. covenantor of, 162. deceased insolvent, 191. defence of, 67. fraudulent preference, 21. gift until, or after, 23, 24, 197, n., 209, 271. 2 T 642 INDEX. BANKRUPTCY— co«S'ee Debts, Executor, Trust. action by, accounts, etc., 170, 212. — executor, against, 212. administrator, 182, 218. INDEX, 649 C^'E.mi^OR— continued. appropriation of payments by, 592. covenantee is, when, 162. following assets, 212, 213. judgment, 170, 389, 397, n. secured, 600. settlement, etc., in fraud of, 26-25. trust for benefit of, 19, 32. CEOWN, 92, 281 511. See Bona Vacantia. debts, 169, 171. escheat, 92, 390. not bound by Statute, 312. trespass by, 298. CUETESY, tenant by, 85, 301. CY puis, 7, 32. DAMAGES. See Specific Pebfoemance. assessed, how, 282, n. — to date of certificate, 486, n. costs, 485, 502. injunction and, 280, 316, 327. jurisdiction to award, 285. liquidated or penalty, 258. threatened injury, 316, 328. trespass, for, 298, undertaking as to, 281, 282, n., 328. DEATH DUTIES, 55, n., 93, 205, 480, n. DEBENTUEES, 381, 397, n., 402, 514. interest on, 433, n. lien on, 430. power of sale, 379, n., 397, n. priority of, 410, 414. remedy for enforcing, 429, 633. right to inspect deed to secure, 405, n., 410, n. DEBTORS ACTS, attachment under, 76-80, 233. DEBTS. See Admikistration, Assets, Creditor, Crown, Satisfaction. account of, 170. agent to collect, 216. approj^riation of, 594. assignment of, 598, 599, 892. charge of, 173-178, 183, 186. conditional, stipulation for reducing, 262. contingent liabilities, 191. contribution of assets for payment of, 182-184. direction to pay, 138, 147. escheated estates, hability to, 390, n. evidence of, 206, n., 210. executors, payment of by, 188, 213. firm of and to, see Partnership. Frauds, Statute of, defence of, 215. gift or settlement of, 14. heir, etc., liability for, 167, 168, 170, 188-191. married woman's liability for, 227-229, 232. See Separate Estate. order of payment of, 166, 168-172. personal estate, exoneration from, 184-187. preference, right of, 1 79-182. 650 INDEX. DEBTS— conH7med. I)roof of, see Bankruptcy. purchaser, enquiry as to, 177, 178. real estate, liability of, 1G6-171. release of, 13, 205. retainer of, by heir, executor, etc., 180, 181. simple contract, 168. specialty, 160, et seq., 171. — created by breach of trust, 63. by covenant to settle, 158. trust for payment of, 32, 159, 173. DECEIT, ACTION OF, 514. DEED. See Mistake, Title-Deeds. executed by some parties only, 541. refusal to execute, 444. DEEDS OF ARRANGEMENT, 481, n. DEFECTIVE EXECUTION OF A POWER, 551-560. aid not given in case of breach of trust or fraud on power, 556. consent of married woman or specified person, 555, 556. copyholds, want of surrender of, 552. deed and will, distinction, 555. Fines and Recoveries Act, s. 47, effect of, 556. form and substance, matters of, 555. grandchild, illegitimate child or volunteer, 553. heir, brother or sister unprovided for, 120, 553. intention to execute power, 554. leasing powers, 558. Lord St. Leonards' Act, s. 12, effect of, 556. non-execution not aided, 552. persons in whose favour aid given, 551, 555. principle on which relief granted, 552, 555. purchaser, in favour of, 551, 555. sale, invalid exercise of, 559. specified time, exercise within, 555. statutory powers, 559. Wills Act, ss. 9, 10, effect of, 557, 558. DELAY. See Laches. DELIVERY UP OF DEEDS, ETC. See Cancellation, Fbaud. DEPOSIT. mortgage by, 384. See Mortgage Equitable, Vendor and Purchaser. recovery of, 27. DESIGNS, COPYRIGHT IN, 351-355. amendment in action for infringement, 355, u. definition of, 351, 354. licencee may not sue, 355. piracy protection from, to what it extends, 352. registration of, 352. — publication before, 355. DEVASTA VIT, 68, 70, 211, 212, 215, 216. Sec Executor, Limitation. by married woman, 64. DEVISE. See Gift. ademption of, 193, n. Apportionment Act as to, 598. effect of, 112. infants, to, 250. INDEX. 651 DW^l^'F,— continued. mortgaged and trust estates, 188, n. property abroad, 112. DEVISEE, liability of, for debts, etc., 167-171, 195. power to sell, 175, 177. DIRECTORS. See Peospectus. Debtors Acts, not within, 78 gifts to, 526, n. illicit profits, etc., by, 35, n., 526. inquiry into conduct of, 526, n., laches as to claims against, 533, n. liabilities of, 35, 65, n., 514, 515, n. rights of, 405, n. trustees, when to be treated as, 35, 65, n., 78, 80, 82. DISABILITY, persons under, 366, 434. See Infants, Lunatic, Married Woman. DISCLAIMER, 37, 440, 481, n. . DISCRETION, 251, n. DISENTAILING DEED, 92 covenant to execute, 556 married woman by, 231. rectification of, 556. DISTRESS, 394, 484. DISTRIBUTION OP ESTATE, 18, n., 53, 212, 236. DISTRINGAS, WRIT OF, 53. DOCUMENTS. See Title Deeds. DONATIO MORTIS (7^ C/^;Si, 201-206. death duties on, 205. differs from gift inter vivos and legacy, 205. evidence as to, 206. operation of Wills Act as to, 203 property which may be subject of, 203-205 requisites of, 201, 202. suicide, in case of, 202. DOWER AND FREEBENCH, 86, 114, 301, 380, 389. assignment of, 370. DRAMATIC COPYRIGHT ACT, 1833, 349. DUTY, estate, 93, 206, 480, n. foreign, 193, n. legacy and succession, 93, 205, 480, n. EASEMENTS, 300, 313, n., 470, n. ECCLESIASTICAL COMMISSIONERS, 302. EDUCATION. See Infant, Maintenance, EJECTMENT. See Recovery of Land. ELECTION, 108-128. See also Reconversion, Satisfaction, action to compel, 125. compensation to disappointed legatee, 108-110, 117, 125. conditions required to raise a case of, 115, 116. conversion, as to, 103-107 derivative interests, 122-124. different clauses in same instrument, 121. disability, by persons under, 105-107, 126-128. doctrine not confined to wills, 117. 652 INDEX. ELECTION— co?^^t/med. dower and freebciicb, 11-t. extriusic evidence, IK!, 121. heir, invalid devise of land, 112, 113, 134. how made, 124-126. infant, settlement by, 110, 112. intention to exclude doctrine, 117. married woman, by, 106, 112, 113, 118, 123. mistake, gift by, 109, 115, 117. personal competency of author of instrument, 112, 113, 123, 124. powers, on the exercise of, 109, 113, 119-121, 124. second, 116, 117. testator baving some interest in property, 116. will and settlement, between, 137. ELEGIT, WKIT OP, 190, 389, 426. ENGllAVINGS AND PRINTS COPYRIGHT ACTS, 1766, 1777. . 350, n. ENLARGEMENT DEED, 480, n. EQUITABLE ASSIGNMENl', See Assignment. EQUITABLE PRESUMPTION, 33, 143, 595. EQUITY, nature of, 1-3. EQUITY OF REDEMPTION. See Mortgage, Redemption. EQUITY TO SETTLEMENT, 220. See Married Woman. priority over right of retainer, 195. ESCHEAT, 92, 390. ESCROW, 408, n. ESTATE FOR LIFE. See Tenant fob Life. "ESTATE IN LAND," 223. ESTATE TAIL. See Tenant in Tail. trusts after, 57, n. ESTOPPEL, 412, n., 435. ESTOVERS, 303. EVIDENCE. acquiescence, of 533. ademption and satisfaction, of, 133, 141, 142, 148. breach of covenant, of, 465. contracts, as to, 455, n., 456-460. deceased person, of payment by, 434, n. donatio mortis causa, of, 206. election, what required to raise, 116. fraud, illegality, etc., 520, 522, 524, n., 533. Frauds, Statute of under, 383, 456, et seq. lost deed, will, etc., of, 550. misdescription, of, 383, n. mistake, of, 540. parol, admissible, when, 383, 384, 454, 584, G08. — to prove consideration, illegality, fraud, etc., 10, 20, 26. partition action, in, 368, 369, n. partnership, of, 603, n., 611. rebutting, presumption, 142, 152. title, of, 368, n. trial, at and before, 368, n., 369, n. will, 152, 153, n. EXCHANGE, of property subject to covenant, 157. power of, 361, n. INDEX. 653 Po??^^^?^^' ''t'^^- ^^^ Attachment, Contempt of Court, Judgment lyREDITOR, bPECIFIC PERFORMANCE. Equitable, 191, n., 425-428. See Receiver. — against reversionary projierty, 427. partners, against, 602, 615, 616. warrant of attachment, appeal, right of, 80. EXECUTION OF TEUSTS. See Trust, Truster. EXECUTOR. See Administration, Debts, Injunction, Investment, Legacy IRUSTEE. J > action by, 317. — defences to, 212, 213. advertisements for creditors, 217. agent, liability for acts of, 65, 214, 216. appropriate, power to, 437, n. — estate in specie, 211. assent of, 192, 210, n. attachment of— Debtors Acts, 77. balances due to and from, 66. bankrupt, 218 business, carrying on, 54, n., 55, n., 210, 211. care of estate, 214. co-executor, liability for acts of, 59, 211. compound debts, compromise, etc., power to, 210, u. constructive trustee, is a, 164. control and custody of estate, 61. conversion of estate by, 209-211, 214-217. de son tort, 216, n. devastavit by, 66, 70, 211, 212, 215, 216. discretion of, 182, 211. dispense with representative, power to, 439. distribution among wrong persons, liability for, 53. duties and liabilities of, 59, 61, 209, 212. gift to, 526. goods supplied by, 41, n. injunction against, 218. insolvency of, etc., 218. interest, liability for, 213. investment by, 214. judgment against, 170. legacy to, 185, 194. legal estate, power to convey, 165, 177. Limitation, Statutes of, 39, n., 212, 215. misconduct of, 218. mortgagor, of, 437, n. overpaying legatees, 214. partner, of, 604, n. party to administration action, 212. — to foreclosure, 437. payment of debts by, 174, 175, 195, 211. powers of, 175, 177, 209, et seq. — of sale, 49, 165, 174, 178, 179, 209. ■ under Land Transfer Act, 165, 178, 210. — one executor, 211, 215. preference of creditor, right of, 179-181. probate, power to act before, 216. 654 INDEX. EXECUTOR— conro tanto, 157, 159. PERPETUITIES, accumulation, trust for, 57, 58, n. power of, or trust for sale, in, 54, n., 104, 119. restrictive covenants, 290. rule against, 7, n., 8, n., 57, 120. PERSONAL ESTATE. /See Administra tion, Debts. liability in administration for debts, 183-188, 194. partition of, 356. sale of, under judgment, 428. specific performance in regard to, 450. PERSONAL REPRESENTATIVE. See Executor. PHOTOGRAPH, 346. PICKETING, 321. PICTURE, 350, n. PLEDGE, 381, n., 408, n., 414, n. POLICY OF ASSURANCE. See Assignment, Chose in Action. banker, etc., power of, to receive money, 48. cancellation of, 506. debtor's life, on, 384, n., 579. lien on, 431, n. moneys applied in keeping up, 431, n. mortgage, etc., of, 383, n., 410, n., 417. jiayment of, 598. PORTIONS, 28, 29, n., 87, n. . See Satisfaction. charged on land, vesting of, etc.;" 561. INDEX. 677 PORTIONS— cow «m«ed double, 129, et seq., 147, 151. presumption as to, 129, 133. satisfaction of by le£;acies, 134-140. POSSESSION, unity of, 314. POWER. See "Best Kent," Defective |Ex.ecution of a Poweb, Ei,it,(,TioN, Fraud on a Power, Married Woman, Sale. appointment under, 120, 149, n., 553, 559. conversion of property subject to, 84, n. coupled with a trust, 552, 567. covenant to exercise, 109, 159, 160, 565. debts of donee, 172-174, 184. distinction between general and special, 120. fraud in preventing execution of, 552. illegal, remoteness, etc., 119, 121. intention to exercise, 109, 119, n., 554. — to make appointed property appointor's own, 120, n. limitations, in default of exercise of, invalid, 57, u. original or derivative trustees, exercise by, 39, n. release and disclaimer of, 222, 234, 567. residuary appointment, 121. revocation of appointment, 123, n. settlement defeated by exercise of, 163, n. trust, in nature of, 9, 552, 567. POWER OF ATTORNEY, construction of, 455, n. payment by trustee, etc., under, 49, n. PRACTICE IN EQUITY AND AT COMMON LAW, 2. PRE-EMPTION, 388, 462. PREFERENTIAL PAYMENTS IN BANKRUPTCY ACTS, 171. PREMIUM, apportionment and return of, 589, 624, 636. apprenticeship, 546. PRESCRIPTION ACT, 1832.. 300, 310, n., 312-314, 319. PRESUMPTION OF EQUITY, 33, 143, 595. PRINCIPAL AND SURETY, 570-584. See Crown, Quia Timet. biUs of exchange, 575, 577. composition, surety for, 581. compounding debt, rights of surety in, 581. continuing guarantee, 580, n., 596, 612. contract, alteration of, 571, 575. contractor, agent or servant, for, 583. covenant not to sue debtor, 583, 584. evidence of suretyshijj, etc., 571, 585. floating balance, to secure, 580, 596, 612. Frauds, Statute of, 572. guarantee, revocation by death or notice, 571, 572. good faith in entering into contract, 570. indemnity and contribution, right to, 572-576. insolvency or bankruptcy of co-surety or principal debtor, 575, 576, 578, 580, 581, 583. jurisdiction, 570. Limitation, Statutes of, 433, 572. part of debt, right of surety, 580. parties to action, 437, 574. 678 INDEX. PRINCIPAL AND ^U^'WTY— continued. release or discharge of surety, 573, 574, 582-584, 612. — mortgaged property, of, 583. retainer by surety executor, 180. retiring partner, 612. securities, right of surety to, 576-582. set off, 579. subsequent incumbrancer, surety's rights against, 577- undisclosed principal, 578. PROBATE, 165, 216, n., 550. PROFITS. See Directors, Promoter. illicit or secret, 35. sharing, 604. PROMISSORY NOTE, 15, n., 575. PROMOTER, 526, 527, 529, n. See Directors. Debtors Act, s. 4, not subject to, 78. PROSPECTUS, 514, 526. PUBLIC HEALTH ACTS, 424. See Table of Statutes. PUBLIC HOUSE, 270, 272, n., 282, 295, 461, 614, n. PURCHASE, conditional, 388. in name of child, wife, etc., 30-34. PURCHASER. See Fiduciary Relation, Notice, Sale by the Court, Vendor and Purchaser. enforcing covenants, 289. equity of redemption, of, 389, 391. executor, from, 212. inquiries by, 177, 178, 379. settlement, etc., fraudulent against, 16, 23, 25-27. trust property, of, 66, 71-73, 177. trustee in bankruptcy, from, 266, 406. QUIA TIMET, 310, 503, 574. RAILWAY COMPANY, 490. See Injunction, Notice to Treat. REAL ESTATE. See Assets, Married Woman, Notice, Mortgage, Vesting Order. charge on, 424-428. charged with legacies, liability of, 184, n., 194. contingent devise, income of, 250. devolution of, 165. power to sell for payment of debts, etc., 170, 175-179. RECEIVER. See Business, Execution, Injunction, Mortgage, Partner- ship. action to recover land in, 297. appointed, how, 441, 590, 616, 632-635. — when, 181, 362, 401, 425, 427, 488, 590, 616, 628. attachment of — Debtors Acts, 77. company, against, 633, n. defendant, on application of, 634. effect of appointing, 181, 425, 427, 628, 633, 634. foreign property, 377, n. injunction and, 635. interim, appointment of, 634. Judgments Act, under, 426. jurisdiction to appoint, etc., 362, 401, 628. land in possession of defendant, of, 297. INDEX. 679 RECEIVER— co?iiin«ec?. liability of, 633, loss incurred by, 401. manager and, 401, n., 633. plaintiff or defendant, leave to propose himself, 632. powers of, 633. remuneration of, 40, n., 632, n., 633. thii'd party prejudiced by appointment of, 616. trustee appointed to be, 40, n. RECITALS, effect of, 75, n., 154, n. RECONVERSION, 96-107. See Conversion. election against conversion, 96, 97, 103-107. heir or next of kin becoming solely entitled, 98, 99. land into money, all parties interested must concur, 96. Lands Clauses Act, under, 100, 101. money " at home," 87, 97. — into land, all parties interested need not concur, 97. mortgaged property, 98. sale by the Court, 99, 101. Settled Land Act, under, 102. RECTIFICATION OF INSTRUMENTS. See Fkaud, Mistake, Specific Performance. Fines and Recoveries Act, s. 47, effect of, 556. judgment for, 542, 543. REDEMPTION. See Foreclosure, Limitation, Mortgage. before day appointed, 443. dismissal of action for, 444. injunction to restrain mortgagee selling, 396. judgment for, 442, mortgagor sued on his covenant, 390. offer to redeem, when required, 391. parties to action for, 436-438. persons entitled to redeem, 389, 390. practice in action for, 440-445. proviso for, creating new estates, 389, n. purchaser, right of on redeeming, 389, n., 390. several estates mortgaged, 390-392, 438. successive redemptions and foreclosures, 443. tender, 406, 448. time to redeem, 423, n., 442, 444. RE-ENTRY. See Forfeiture. REFUNDING by legatee, solicitor, etc., 40, n., 194, n., 212, 214, 536, n. REGISTRY, MIDDLESEX AND YORK, 414, 415. vacation of registration, fraud, 427. RELEASE, 13, 49, 205, 539, 566, 588. See Executoe, Principal and Surety, Trustee. REMAINDERMAN. See Tenant for Life. REMOTENESS, 57, 120, 121, 564, n. See Perpetuities, RENEWAL OF LEASE, 35, n., 431, 559. RENT. See Best Rent, Occupation Rent, contribution towards by co-owner, 476, n. forfeiture for non-payment of, 263-266, 269. mortgagor can sue for, 380. RENTCHARGE, 407, n., 424, n. liability for, 374, 375. 680 ' INDEX. RENTS AND PROFITS, accounts of, etc., 170, 194, n. See Mortgagee, Partition. charge of debts on, 173-178. employment of agent to collect., 400-402. REPAIRS AND IMPROVEMENTS.; Incumbent by, 303. mortgagees, power of, to make, 399, 420, n. partition action, etc., in, inquiry as to, 362. tenant for life, trustees, etc., by, 46, n., 303, 307. vendor or purchaser by, 487, n. REPETITION OF LEGACIES, 149-152. REPRESENTATION ^'0 BE MADE GOOD, 512. " R P:PRESENTATIVE," 573, n. REPUGNANCY, 200, n. RESALE, 485. RESCISSION, 503-506. See Cakcellation, Vendor and PaBCHASER. RESIDUE, 186, 194, 197. ademption of, 131. covenant to leave, 159, n. direction that fund fall into, 54, n. distribution of, 199. RES JUDICATA, 609. RESTRAINT OF TRADE, 291-296, 512, 614. RESTRAINT ON ALIENATION, 200, n. RETAINER. See Debts, Executor, Solicitor. REVERSION, 288, 297, 319, 398, 427, 520. See Tenant for Life. injury to, 362, n. SALE. See Incumbrances, Vendor and Purchaser. costs of, 446. discretion of trustees as to, 53-56. inquiry as to, 363. See Mortgage. negotiation for, 464. pendente lite, 486, n. postpone, power to, 54-56, 90, 211. power of or trust for, 54, 88-90, 92, 104, 360, 361, n., 396, 397, n., 432, 481, n., 559. specific goods of, 451. tenant for life, with consent of, 361, n., 482, n. SALE BY THE COURT. See Bid, Leave to, Partition, Stop Order, Title. conduct of, 423. conveyance in, 441, 444. costs of, 446. interlocutory application, on, 417, n., 422. mortgagee, with consent of, 362. order or judgment for, 217, n., 422, 441, 470, n., 628. out of Court instead of, 423. SATISFACTION AND ADEMPTION, 129-148. See Repetition of Legacies. ademption, absolute interest, of, by life interest, 132. — annuity, of, by legacies, 136. — legacy of, by iwrtions, 129-134. — residuary gift by annuity, of, 131. children, how far applicable to, 130, 140. codicil confirming will in case of, 136. contingent gift, 132, 133. contract between father and child, 134. covenant to appoint, 159, 160, INDEX. 681 SATISFACTION AND ADEMPTION— con^mMccZ. debts by legacies, 145-148. — direction to pay, 138. difference in gifts, 121, 131, 133, 134, 136-138. different persons to be benefited, 121, 138. distinguished, 137, Distributions, Statute of, under, 143. election in cases of, 121, 137. express provision for — subsequent will, 139. extrinsic evidence, 141-143, 148. husband, gift to, 133, n. immediate provision, doctrine not applicable to, 135. interest on advances, 139, 144. legacy for a particular purpose, 141, 142. — specific, ademption of, 193. parent, or person in loco 2)arentis, 140-142, 145. portions of, by legacies, 134-144. presumption, in cases of, 130, 133. property not ejusdem generis, 131. pro tanto, 129, 135, 145. real estate, etc., of specified value, 132, 134. remainder, gift in, ademption of, 133. Settled Estates Act, 1877.. 101, 102. small sums and annual allowances, 139, 144. stock, when value to be ascertained, 130. stranger not entitled to benefit of rule, 131. widow, no ademption against children for, 131. SAVINGS BANK, trustee or manager of, 36, n. SCHOOL BOARD ELECTION, injunction to restrain, 285. SECURED CREDITOR, 191, 600, 601. SECURITIES, appropriation of, 599-601. marshalling of, 420. SECURITY FOR COSTS. See Costs. SEPARATE ESTATE. See Husband, Married Woman. costs, liability for, 230, 235. creation of, 223. devolution on death, 219, 220, 236. discovery as to, 230, n. foreign property, 39, n. injunction against alienation, 227. liabihty for debts, etc., 39, n., 172, 174, 226-235, 237. Married Women's Property Acts, before, 229-235. order and disposition, 39, n. power to dispose of, 223, 225. restraint on anticipation, 67, 113, 163, 213, 222-226, 230-233. — power of Court to bind, 119, 236. savings of, 226. what is, 225, 228, 233, n. SEPARATION DEED, 234, 240, 451, n. SERVICE. See Partners, Summons. dispensing with, binding parties not served, 364, 365. judgment or order, 443, n. SET OFF, 72, 592-594. See Principal and Surety. against person having equal Equity, 593. 682 INDEX. SET OYF— continued. bankruptcy or winding up, in, 594. legacy, etc., and debt, 195. surety's right to, 579. Avhat may be, 592, 593. SETTING ASIDE DEED, ETC. See Cancellation, Fraud, Mistake. SETTLED ESTATE, legacy to improve, 8, n. SETTLED ESTATES ACT, 1877.. 101, 102, 302, 358, 359, n., 559. SETTLED LAND ACTS. See Best Eent, Partition, Reconversion, Tenant FOR Life, Vendor and Purchaser. bankrupt tenant for life, 482, n. contracts under, binding on successors, 557, 558. execution of powers under, 557, 558. incumbrance, as to, 482, n. investment under ss. 21, 22 of 1882 Act, 42, n. " land," definition of, 47, n. lease under, 482, n., 508, 558. lunatic tenant for life, etc., 367, n., 482, n. notice under, 75, n., 478. trustees, appointment of, under, 478, 482, n. writ affecting land under, 427. SETTLEMENT. See Election, Fraud, Marriage Settlement, Married Woman, Separate Estate, Trust. after-acquired property, 50 n., 162. consideration to support, 10, 11, 17. defeated by execution of power, 163, n. execution of trusts of, 17, 19-27. original and derivative, 416. revocation, power of, in, 542. setting aside fraudulent, 20-27, 537-545. settlor his own conveyancer, 29. strict, 28, 29, n., 301, 363, 437, 492. voluntary, 11-27, 86, 93, 249, 518, n., 521, n., 541. SHARES IN COMPANY. See Mortgage. allotment of, setting aside, 515, n, blank transfers, 412, n. calls, indemnity against, 40. contract for, 451. forfeiture of, 278. legacy of, 191. order to sell, 217, n. pledge of, 407, 408, n. SHELLEY'S CASE, rule in, 28, 30, 87. SHIPS, trusts, etc., of, 407, n., 408, n. SOLICITOR. See Breach of Trust, Limitation, Mortgagee, Notice. agent, 429. attachment against, under Debtors Acts, 77, n,, 82. breach of trust, liability for, 62, 65, 69. champerty of, 505. costs, 77, n., 370, n., 387, 505, 588. — claim against trust estate for, 40 n., 41. — refunding of, etc., 40, n. discharge of, 430. fraud by, 82, 179, 515, 523. gifts to, 524. INDEX. 683 SOLICITOR— cora^/nwcZ. interest, liability for, 65. 1^6^129-430 ''^'^'*'^ ^' *''' ^^' ^^^' ""•' ^^^' ''•' ^1^- mortgagee, as, 398, 431. See Mortgagee. privilege, 256, n. purchase money, etc., authority to receive, 48 purchasing from client, 523. remuneration of, agreement for, 505. retainer of, 62, 430, n., 607. same for both parties, 179, 430. setting aside accounts against, 588. striking off the rolls, costs, 77, n. trustee, profit costs, 40, 41, uncertificated, 432, n SPECIALTY DEBTS, 63, 166. IREAT, Payment into Court, Separation Deed, Vendor and Purchaser abandonment of contract, 457. ruRCHASER. action for, 494, et seq. — and to rectify contract, 458. agent, contract by, 455, 456, 493. r~ indemnity to, 493. amendment of particulars, 486, n. arbitration, agreement to settle by, etc., 469-471 breach of tnist, etc., defence of, 474. business, purchase of, 454, 455, n. compensation, with, 465-468. concealment, defence of, 510, 516. conditions of sale, as to, 452, 468, 469, n. continued supervision, contract requirin'^,'295 206 contract, conditional, 455. . ^ °' ' ^^"' — execute disentailing deed, to, 556. — partnershi]), for, 619, 626. — reformed, 458. — sell land, to, 557. — separable, 462, n. — sufiiciency of, etc., 453-456. conveyance, etc., direction in order as to, 498. — settling, 499, n. costs, 494, 500-502. County Court, in, 493. covenant to exercise power, of, 158, 160 161 damages, 463, 559. — and, 452, 485, 486. election between, 495. — instead of, 450-453, 460, 619. deceased vendor, etc., 491. deposit, return of, 27, 467, 476, n. discretion of the Court to grant, 452. dismissal of action leavmg part to legal remedy, 452. enforcement of order for, 452. y^ ^^' execution on judgment for, 498. Frauds, Statute of, 453-456. — part performance, 458-463, 485, n. 684 INDEX. SPECIFIC PERFORMANCE— co?iiwMte(Z. goodwill, dissolution of partnership, etc., 455, n., G13, n., G26. See Pabtnbbship, Restkaikt of Trade. impecunious purchaser, 496, 498. inadequacy of price, defence of, 473. incumbrance or lease after contract, etc., 470, n. indemnity, of, 451. infant, contract by, not enforced, 454. injunction, 295, 296, 474, n., 485. intoxicated person, lunatic, etc., contract by, 472, 473, n. judgment, 495, 499. — title accepted, 498, 499. — title not accepted, 494. jurisdiction, 450, 451, 493. laches and delay, defence of, 463, 484. lease, contract for, 455, 467, 539, n. — covenants to be contained in, 477, 495, n. — forfeiture of, 465. loan, contract for, 451. marriage articles, of, 17. misrepresentation, defence of, 472. See Feaud. mistake, defence of, 456, 473, 539, n. mutuality, 450, 453. option to purchase, 462, 613, n., 626, n. parol evidence to resist, 456-458. particulars of claim for, 454, 474, 486, n. parties, 491. — agent, etc., 493. — trustees, cestuis que trust, 493. penalty for breach of contract, 263. personal property, contract as to, 450, 451, — service, contract for, 295, 296. * plaintiff to be ready and willing to perform, 495. possession, purchaser taking, etc., 459, 464, 499. practice in action for, 493-500. price, excess of, 474. — inadequacy of, 473. receiver, 488, 499, n. rectification and, 458, 540, n. refusal, etc., of vendor to convey, 499. registered land, as to, 491, n. rescisson after judgment, 500. See Vendor and Purchaser. sale pendente lite, 486, n. time of essence of contract, 460-463. title, see Vendor and Pukchaser. trial, matters to be dealt with at, 495. valuable consideration necessary', 453. voluntary settlement, defence of, 27. waiver of j^art of agreement, 456, n. 8PES SUC'CESSIONJS, 235. STAKEHOLDER, 10, n., 486, 493. STAMPS, 480, n. See Vendor and Purchaser. STATEMENT of case for Court, 591. See Arbitration. STATUTES. See Table oe Statutes. STATUTORY POWERS, 311, n. INDEX. 685 STAYING PROCEEDINGS, 283, 589, 628. See Arbitration. STIRPES PER, or per capita, gift, 54, n. STOCK. See Shares. mortgage of, 377, n. - sale and transfer of, 450, 451, n. STOP ORDER, 417, 428, n. SUBSTITUTIONAL GIFT, 153, 154, 199, u. SUCCESSION DDTY, ETC., 93, 480, u. SUMMONS. ex parte, 444. originating, 49, 215, 391, 439. service of, dispensing with, 364, 365. to proceed under judgment, etc, 443, 497. Vendors and Purchasers Act, under, 474. SUPERFLUOUS LANDS, 479, n. SUPPORT, right to, 299. SURETY, See Principal and Surety. TACKING, 576. See Mortgage. TELEGRAM, contract by, 455, n. TENANT FOR LIFE AND REMAINDERMAN. Sec Conversion, Injunc- tion, Limitation, Settled Land Acts, Timber, Waste. accounts between, 182, n. ademption by gift to, 133, 148. apportionment of funds or income between, 54-56. bankrupt, 482, n. boundaries, liability for, 374. debts, incidence of, as between, 179, 183, n. election, 107. estoppel against, 435. estovers, mines and quarries, etc., 302, 303. interest, contingent gift, payment, etc., 55, n., 251, n. lease or reversion taken or purchased by, 34, 35. — granted by, 508, 558. payment off of charge, by, 405. possession, title deeds, etc., right to, 51. profits and loss of business, etc., 54, n., 55, n. redemption of mortgage, rights on, 389, 437, n. repairs and improvements, 46, n. rights of, on investment, 44. sale by, 361, n., 363, 478, 557. undivided shares of real estate, 367, n. •wasting property rights in, 54-56. TENANTS IN COMMON, 228, n., 361, n., 362, n. TENANT IN TAIL, after possibility of issue extinct, 301, 307. agreement to disentail by, 556. waste, 301, 307. TENDER, 448. contract by, 455, n. TESTAMENTARY EXPENSES, 170. THELLUSSON ACT, 57, 58. TIMBER, 303-308. mortgaged property, 393, 402. sale of, separately from estate, 306, 559. Settled Land Act 1882, cutting under, 306. 686 INDEX. TITHE EENT CHARGE, 479, n. TITLE, 474-482. inquiry as to, 497. notice of, 75. proceedings to perfect, 448. TITLE DEEDS, 407-il7. See Notice. action to recover possession of, 409, 411, 412, inquiry for, 408, 410, 411, 414, 415. investigating, 271, 405, 460, 468, n. lost, 479, n. right of trustee, etc., to custody of, 51, 413. — to sue for, 409, 411, 412. TOET, 280. TRADE. See Business, Covenant. libel injurious to, 319, 320. macbinerv, 381, n. name, 336, 615, n., 620, n. puff, 320. restraint of, 291-296, 512, 614. TRADE MARKS, 328-339. See Newspaper. acquiescence, mark hecoxmng puhlici jurisy 338. assignment and transmission of with goodwill, 330. calculated to deceive, 330, 334-337. carrying on business in one's own name, 335, 337. Common Law rights, registration not required, 334, 335. connection with goods, 329, 335. costs of action, 332, 338, n., 339. device, 330, 331, 334, n. essential particulars of, 329, 333. evidence of title to, 331, 332. " fancy word," 333, innocent infringer, 339. misrepresentation, mark containing, 338. old trade mark, 329, n., 332, 333. passing off one's goods or business as being another person's, 334, 337, patented article, 335, 337, 338. " person aggrieved," 332, n. profits, account of, limited to six years, 338, 339. rectification of register, 332, 334. registration of, 329-332, 335. relief given at trial, 338. rules.. 328. scandalous design, 330. TREASURY SOLICITOR, 93. TRESPASS, 296-299, 361, n. TRIAL, matters to be dealt with at, 495, 501. TRUST, 4-83. See Breach of Trust, Frauds, Statute of, Notice, Peb- pETuiTiES, Trust and Mortgaged Estates, Trustee. acceptance of, 15, 36, 37. action for execution of, 49, 126. agreement to settle property, 10-17, 87, 88, 519, n. bankruptcy, etc., until, 23, 24. charitable, 608. children etc., for, 18, 19, 27, n. chose in action of, 14, 15, n. INDEX. 687 TRVST— continued. constructive, 30, 34-36, 61, 197, 396, n., 492, n. conversion, for, 88, 92. See Convebsion. covenant to settle, 15-18, 155-163, creation of, 6, 9, 11-15. creditors, for, 19, 27, 32, 173, 182, 183. — void against, 19-25. declaration of, 12-15. deed, 405, n. delegation of, 47, 48. determination of, 103-105. devisee, in, power of sale, 175. evidence of, 5, 13. executory and executed, 28-30, 121. express and by operation of law, 45. failure of, 70-73, 94. following trust funds, 70, et seq., 82. imperfect trust, assurance, etc., 11-27, 519. implied, 30-34, 172, n. indefinite, 7. jurisdiction as to, 4. law, trusts arising by operation of, 5, 30, 456. legacy, 196, 197. — investment of, 44, n., 82. Limitations in case of trust, 82, n., 165. never fails for want of trustee, 39. next-of-kin, for, 7, 9, 11, 17, 18. original and derivative instrument of, 39, n., 416. parol declaration of, 5, 12-14. payment of debts, for, 172. perfecting of, 13. personal property of, 5, 14. persons against whom trust may be enforced, 19-27, 128. — by whom trust may be enforced, 17, 18. — to execute, 38-40. policy, etc., of, 14. precatory, 9, 10. pubUc and private, 4. purchase, for, 105. See Conversion. purchaser, void against, 21-27. resulting, 7, 11, n., 13, 23, 30-34, 85, 187. revocable, when, 12, 15, 19. sale, for, 377, 432, 479. See Conveesion, Partition, Sale. title, on, 479, n. tombstone, to keep in repair, 7, n. unlawful, 10. voluntary, 11-27, 519, n. TRUST AND MORTGAGED ESTATES, devolution of, 38, 388. when they pass by devise, 39, n. TRUSTEE, 36-83. See Breach of Trust, Chapel, Executor, Fraud, Limitation, Maintenance, Power of Attorney, Sale, Bavinqs Bank, Trust. acting as, effect of, 83. advantage gained by, 34-36, 40, 41. agent, 60, 65, 70, 72. application to Court by, 49. 688 INDEX. TRUSTEE— co)i^Mme(Z. attachment of, 76, et seq. balance due from, 66. bankrupt, 63, 67, 71, n., 429. bankruptcy, in, see Bankkuptcy. " bare trustee," 231. beneficiary, 65. business, carrying on, see Administration. consent of, 158. Costs, Charges, and Expenses, 39-41, 370, 448, n., 545. See Administration. — failure to account, etc., 52. — instrument set aside, 23, 545. — severing in defence, etc., 370. debenture liolders, for, 633, n. declaring person a, 529. defaulting, 66. de son tort, 65. disclaimer by, 37. Duties of, 50-58. — accounts, possession, etc., 52. — act jointly, etc., to, 50. — conversion of property, 44, 53-56, 60, 85. — custody of trust property, etc., 49-52, 60, 61. — debts, choses in action, etc., as to, 48, 51, 60. — information as to trust estate, 52, 53. — insufficient securities, etc., as to, 43, 44, 51. — proceedings, etc., to institute, 51, 53. — regulated by instrument of trust, 50. — support trust when assailed, to, 51, 542. executor and, difference between, 164. indemnity, 40, n., 59, 61. instrument of trust, deviation from, 49. investments by, 42-46, 54, 61, 214, 609, n., 610. judgment for execution of trusts, effect of on powers of, 217. judicial, 67. Liability of, 36, 58-70. See Duties of. — agents, etc., for, 48. — bank, depositing money in, 60, 72, 593, n. — distributing estate among wrong persons, 53. — errors of judgment, 50. — funds outstanding, etc., for, 51. — interest, for, 55, 64. — paying incumbered share to mortgagor, 53. — receipts, for, 59, 78, 82, 379. — sale of stock, etc., 48, 53, 54. — wilful default, 51, n., 70-73. See Breach of Trust. lien, of, 431. loan by, to cestui que trust, 407. management, repairs, etc., 46. mixing trust moneys with, his own, 70-73. new, 46, 51, 63. notices to and by, etc., 51, 416. possession by, title deeds, etc., 51, 165. purchase from beneficiary, etc., 517, 525, 529. receiver, 40, n. INDEX. (589 TRUSTEE— con ^«j?(erZ. ' release of, 49, 50, n., 530. removal of, 63. remuneration, not entitled to, 40, 50. renewing lease, 34-36. repudiate trust, not allowed to, 66. retirement of, 62, 530. Rights and Powers of, 36-50, 175. — agent, etc., to emjjloy, 47, 48. — decision of questions, etc., 48, 49. — opinion of counsel, or of the Court, to take, 48, 49, 53. — proof of title of cestui que trust, 53. — receipts, to give, 59, 177. — reimbursement and indemnity, 40, n., 59. -^ remit money, to, 48. selling, 47, 175, 176, 432, 479, n., 560. ■'— under depreciatory conditions, 47, n. settlor, 12-15. solicitor, profit costs, 40, 41, 431. sue, refusing to, 16. TRUSTEE ACTS, 1893, 1894. See Table of Statutes. invalid instrument, question as to, 544. investments by trustees imder, 42-^46, 214. payment into Court under, 49, 253, 380, 396, 544, 599. vesting orders under, 363, 444, 480, n., 492, n., 499. TRUSTEE (JUDICIAL) ACT, 1896.. 67-70. UNCONSCIONABLE BARGAIN, 387. UNDERLEASE, 466, 476, n., 477, n. UNDERTAKING. /See Title Deeds. as to dama2;es, see Damages. UNDUE INFLUENCE. See Feaud. executor trustee, etc., 524. guardian and ward, medical attendant, etc., 522. lunatic, 518. parent and child, transactions between, 521. person preparing will, 524, n. solicitor and client, 523. UNSOUND MIND, PERSON OF. See Lunatic. VALUATION, 45, 46. VENDOR AND PURCHASER. See Cancellation, Covenant, Incumbrances, Lease, Repairs and Improvements, Specific Performance. abstract, 479, 484, n. — time for delivery of, 461. adverse claim, 475. " appurtenances," sale with, 470, n. * compensation, 465-468, 500. completion, compensation after, 468, n. — time for, 454, 460-463, 483, 484, 487, n. conditions of sale, effect of, 468, 475, 496. contract for sale, 487, 489, 500. — assignment of, 487, 488. damages, 450-453, 485, 494. See Specific Performance!. — after completion, 487, n. deeds, production of, etc., 478, 480, n. default and delay, 464, 484. 2 Y (J90 JNDEX. VENDOR AND rURCIIASER— con^mzied. deposit, 27, 467, 476, n., 485, 486, 490, 493. destruction of property after contract, 480, n. distress, right of, 484. improvements, 479, n., 490. incmnbrance, 470, n., 480, n., 481, 11., 491, 510. — or lease after contract, 491. injunction, 499. interest, 462, 483, 484. laches of, 463-465. ease, onerous covenants, etc., 477. — other property comprised in, 476. — jierformance of covenants in, 479, n. — production of, 478. — voidable, 481, n. leaseholds, licence to assign, 477, 478. lessor's title, 476-482. lien, 189, 413, 415, 431, 488-490, 578. — declaration, of, 472, 488. lunatic vendor, etc., 473, n., 482, n. notice, 477, 478, 480, n., 484, 489, n., 568. See Notice. outgoings, 483. particulars of sale, etc., misleading, 475, 496, 517. preservation of property, 487. price, 470, 473, 489, 517, 519. purchaser, contract of, equitable interest under, 487, 568. — defaulting, 485, 499. — plaintiff, 467, 529. — possession of, 459, 464, 465, 499. railway company, purchase by, 471, 490. receipt, acknowledging, 489. — authority to give, 47, n., 177. recitals, 479, n.- reconveyance, 528. rents, right to after contract, 483-485. requisitions, 379, 461. resale, vendor's right of, 485. rescission and repudiation of contract, 468, 472, 481, n., 500, 503-506, 528-530, 538. restrictive covenants, right of way, etc., 467, 470, 476, n. Settled Land Act, sale under, 478. stamping of deeds, 480, n. succession duty, 480, n. tenancy, notice of, 477, 480, n. time essence of contract, when, 460-463. Title, 460, 466, 474-494, 502. — acceptance of, 482. — agreement excluding right to good, 474, 475. — bad, 461, n., 476, 478. — covenants for, 470, n. — debts, sale by executor, etc., 175-178. — decision of questions as to, 494, 495. — defect in, 466, 474, 478, 497, n. — doubtful, 496, 501. — equitable, 479. — Limitation, Statutes of, depending on, 679, n. INDEX. 691 VENDOR AND PURCHASER— co?i^«««r'fZ. Title, matter of, or of conveyance, 469, n., 48 L — none, 469, n. to part of property, 460, 466. — removal of objection to, 467, n., 468, 482, 496. — root of, 478. — seisin of testator, proof of, 480. — substitution of new, 482. — voluntary settlement, under, 27, 568. underlease described as a lease, 466. — liability to produce, 476. vendor, bankrupt, debtor, liquidator, 481, u. — deceased, 492. — disclosure, duty as to, 516. — having no interest, 480. — partner, 614. — unwilling, 469, n. — when a trustee for purchaser, 34, 487, 492, n. vesting order, 482, n., 499. See Trustee Acts, 1893, 1894. way, right of, lessor's title to, 470, n., 476, u., 486. wilful default of vendor, 484, 487. VENDORS AND PURCHASERS ACT, 1874. .75, 476, 478, et sea 494 VESTING, under will, etc., 193, 561. VESTING ORDER, 272, 274, 480, n., 487, n. See Trustee Acts, 1893, 1894 Vendor and Purchaser. ' » • ' VEXATIOUS PROCEEDINGS, two actions for same cause, 283 286 VOLUNTARY ASSOCIATION, 287, n. . VOLUNTARY CONVEYANCES ACT, 1893 .. 16, 26, 27. See Trust VOLUNTARY SETTLEMENT. See Trust. VOLUNTEER, 553, 568. WAIVER. charge, of, 429. forfeiture, of, 269, 276. lien, of, 431, 489. objections to title, of, 496. stipulations, of, 455, n. WARD OF COURT, marriage of, etc., 127, 239, 253-256. WARING'S CASE, rule in, 600. WARRANT OF ATTACHMENT. See Execution. WASTE, 300-308. See Limitation, Timber. collusive, 306. injunction against, 297, 362, 393, 499, n. permissive, 301. without impeachment for, 301, 306, 307. WATER, 279, n., 311, n., 312, n., 314. WAY, RIGHT OF. See Vendor and Purchaser. WAY-LEAVE, 298. WIDOW, 200. See Annuity, Legacy, PAiiAPHERXAUA. WIPE. See Husband. purchase in name of, 34. WILFUL DEFAULT. See Mortgage, Vendor and Purchaser. liability of trustee, etc., for, 60, n., 70, 215, 216, 398, 400. WILL. See Legacy, Power, Satisfaction, Undue Influence. costs of contesting, 171, n. election by, 103, 117, 123. « 092 INDEX. \W ILL— continued. _ ,ko iro evidence as to substitutive gifts m, 15Z, lo6. executed abroad by British subject, etc., 5o8. execution of power by, 555. executory trusts by, 29. lost or df^stroyed, 549-551. married woman, of, 113, 231. mistake in, 537, n. onerous gift, 188, n. performance by, 158. probate of, 216, 550. proof of, iu solemn form, 550. real estate, devising, 550. revocation of, 151, 153, n., 154, 551. speaking from death, 123, n., 231. suit to establisli, 550. WINDING UP OF COMPANIES, ETC. debts, proof in, 536, n. jurisdiction as to, 284. set off in, 594. stay of, 284. WRIT. indorsement of, 371, 395, partition, of, 356. service of, 609. vacating, 427. lojidon: printed fir wm! clowes and sons, limited, sTamFokd stkeet AND CHARINtJ CROSS. WM. CLOWES AND SONS, Limited, LAW PUBLISHERS, Crown 8vo, cloth, 5^-. , WRITS OF SUMMONS. The Law and Practice relating to Writs of Summons, their issue and service, containing Chapters on the Special Indorsement and Service out of the Jurisdiction. By Walter Gorst Clav, of the Inner Temple, Barrister-at-Law. Royal i2mo, cloth, 12s. dd. THE LONDON BUILDING ACT, 1894. With Notes and Cross References and an Appendix containing such existing Statute* as still affect building operations within the Administrative County of London ; also the Bye-Laws, Regulations and Orders of the London and late Eldon Law Scholar, Draftsman of the Bill as originally introduced into the House of Commons. Second Edition, demy 8vo, 800 pages, cloth, 30J. THE MERCHANT SHIPPING ACT, 1894. With Copious Notes and References to decided Cases, and an exhaustive Index. By T. E. Scrutton, Esq., of the Middle Temple, Barrister-at-Law, Author of " Charter Parties and Bills of Lading," &c. The aim of the author has been to render the Act, which is the longest ever passed by Parliament, accessible and intelligible both to lawyers and commercial men ; and by a copious index containing over 1600 entries, and by constant cross references to other parts of the Act, to make it as easy to find what is wanted as is possible in an Act of 748 clauses and 22 schedules. %* This Act consolidates all the previous enactments of Merchant Shipping, Third Edition, revised, demy 8vo, cloth, xos, td. THE SALE OP GOODS ACT, 1893, including the Factors' Acts, 1889 and 1890. With an Introduction and Appendices, containing Statutes and Notes, &c. By His Honour Judge Chalmers (Draftsm.an of the Act). "Probably there are few men who are better qualified to write a text-book on the above subjects than the draftsman of the Bills of Exchange Act, 1882, and the Sale of Goods Bill, 1889." — Law Times. Second Edition, demy 8vo, cloth, 25J. DARBY AND BOSANQUET ON THE STATUTES OF LIMITATIONS. Second Edition. By F, A. Bosanquet, Q.C, and J. R. V.Marchant, Barrister- at-Law. Demy 8vo, cloth, 2or. THE LAW OF HUSBAND AND WIFE. By Charles Crawley, M.A., of Lincoln's Inn, Barrister-at-Law, late Fellow of Downing College, Cambridge, and Author of " The Law of Life Insurance." " This book is the most comprehensive and valuable one on the law of husband and wife with which we are acquainted." — Athentrum. Third Edition, thoroughly revised, demy 8vo, cloth, ijr. THE LAW OF COPYRIGHT. Including the American Copyright Act, the Berne Convention, the Consequent Order in Council and Cases to Date. By Thomas Edward Scrutton, M.A., LL.B., Barrister-at-Law, Author of " Charter Parties and Bills of Lading," &c., and Lecturer in Common Law to the Incorporated Law Society. " Mr. Scrutton's book is well written and has been carefully revised, and will be found a safe and acceptable guide through the mazes of the existing law." — Law JournaL " We think it is not only the easiest, but the most useful and practical work on copyright." — Law Quarterly Review. Second Edition, revised, royal 8vo, cloth, ssj. Price reduced to iy. THE LAW OF TRADING COMPANIES. Including the recent Acts. Arranged in a Series of Titles in Alphabetical Order. By Edward Manson, of the Chancery Bar. An invaluable digest of easy reference, not only to the legal profession, but also to directors, secretaries, and managers of public companies. "We do not agree with the initial words of Mr. Manson's preface that 'some apology is needed for a new book on company law.' Books are much needed on every branch of law which treat law as thb does. ... A genuine effort in a very desirable direction has been made. It deserves cordial recognition." — Lavj Times. Seventh Edition, royal 8\-o, cloth, 38*. ROBSON'S LAW OF BANKRUPTCY. Containing a Full Exposi- tion of the Principles and Practice of the Law. By George Young Robson, Esq., Barrister- at Law. " We know of no better treatise on this branch of our law, and, looking to the number of editions through which it has passed, our opinion is apparently shared by the profession." — Law Times. Royal 8vo, 700 pages, cloth, f,,z 2*. INFORMATIONS (Criminal and Quo Warranto) ,MANDAMUS, and PROHIBITION. By His Hononr Judge Shortt, Author of" The Law Relating to Works of Literature and Art (Copyright, Libel, &c.)." " A very useful contribution to the lawyer's library." — Law Journal. " Learned and accurate, and must displace all earlier text-writers on the same subject."— /.aif Timet. ^^' ^S65i?'WE£^lwLfifliB®HyE.c. UNIVERSITY OF CALIFORNIA LOS ANGELES AA 000 857 053 Demy 8vo, cloth, lor. 6d. \ \ ,' uemy ovo, cioin, lor. u«. PETvTIOn OP RIGHT (The Law and Practice of), under the Petitions of 'Right Act, iS6o. With Forms and an Appendix containing the Laws Regulating Proceedings h\ Petition of Right in Ireland, Scotland, and certain Colonies and Dependencies. By Walter Clode, of the Inner Temple, Barrister-at-Law. Third Edition, revised, demy 8vo, cloth, 2of. MOORE'S PRACTICAL FORMS. Containing a variety of Useful and Select Precedents required in Solicitors' Offices relating to Conveyancing and General Matters. With numerous Variations and Suggestions. By H. Moore, Esq., Author of " Instructions for Preparing Abstracts of Title," " Practical Forms of Agreements," &c. Edited and revised by Herbert Percival, of the Inner Temple, Esq., Barrister-at-Law. Fourth Edition, demy 8vo, cloth, 2ar. MOORE'S PRACTICAL FORMS OP AGREEMENTS, relating to Sales and Purchases, Mortgages and Deposits, Enfranchisements and Exchanges, Building and Arbitrations, Letting and Renting, Hiring and Service, Debtors and Creditors, and numerous other subjects: with a variety of Useful Notes. By H. Moore. Fourth Edition, thoroughly revised. By Herbert Percival, of the Inner Temple, Barrister-at-Law. Second Edition, crown 8vo, cloth, 7^. 6d. MOORE'S PRACTICAL INSTRUCTIONS AND SUGGES- TIONS TO YOUNG SOLICITORS and ARTICLED and other CLERKS in Matters of Daily Practice, especially in Country Offices. Fourth Edition, crown 8vo, cloth, lor. 6d. MOORE'S ABSTRACTS OP TITLES. Instructions for Preparing Abstracts of Titles, to which is added a Collection of Precedents. By Henry Moore, Esq., Author of " Practical Forms of Agreements," &c. Fourth Edition. With considerable Additions. By Reginald Merivale, B.A., and Norman Pearson, B.A., of Lincoln's Inn, Barristeis-at-Law. Crown 8vo, cloth, 7^. 6d, WITNESSES (The Practice relating to), in all matters and proceedings Civil and Criminal, at, after, and before the Trial or Hearing, both in the Superior and the Inferior Courts. By Walter S. Sichel, M.A. (late Exhibitioner of Balliol College), of Lincoln's Inn, Barrister-at-Law. NEVER BEFORE PUBLISHED. Royal 8vo, calf, £1 11s. td. net. ADMIRALTY CASES, 1648-1840. Reports of Cases determined by the High Court of Admiralty and upon Appeal therefrom. Temp. Sir Thos. Salusbury and Sir George Hay, Judges, 1758-1774. By Sir William Burrell, Bart., LL.D., M.P., &c. Together with Extracts from the Books and Records of the High Court of Admiralty and the Courts of the Judges' Delegates, 1584-1839, and a collection of Cases and Opinions upon Admiralty Matters, 1701-1781. Edited by Reginald G. Marsdkn, of the Inner Temple, Barrister-at-Law. Fourth Edition, demy 8vo, in preparation. CHARTER PARTIES. The Contract of Afifreightment as expressed in Charter Parties and Bills of Lading. By T. E. Scrutton, M.A., LL.B., of the Middle Temple, Barrister-at-Law, Author of " The Law of Copyright," &c. "An entirely new work has long been needed, and we are glad to find it has now been supplied. . . . As a practical and accurate work it would be difficult to improve upon \\.."—Law Tunes, " Mr. Scrutton has written a book which will supply a want which has long been felt. • . . Altogether the beck will be found most useful." — Saturday Review. ^Demy 8vo, cloth, 15^, SALVAGE, TOWAGE, AND PILOTAGE (THE LAW OP). By Harry Newson, Esq., LL.B., of the Middle Temple, Barrister-at-Law, Author of "A Digest of the Law of Shipping and Marine Insurance," &c. "A useful summary of the law ._ . . which we can confidently recommend to the legal profesaon and to those practically interested in shipping." — Shipping Gazette. Demy 8vo, 930 pages, cloth, 321. THE LAW AND PRACTICE OP COMPENSATION FOR TAKING OR INJURIOUSLY AFFECTING LANDS, under the Lands' Clauses Consolidation Acts, 1845, i860, and 1869 ; Railways Clauses Consolidation Act, 1845 ; Artisans' and Labourers' Dwellings Improvement Acts, 1868 to 1882 ; Public Health Act, 1875 ; Elementary Education Act, 1870; General Metropolitan Paving Act; and other Public Acts (English, Irish, and Scotch). With an Introduction, Notes, and Forms. By the late Sidney Woolf, Q.C, and James W. MiDDLETON, of Lincoln's Inn, Barrister-at-Law. " The book is a most complete one in its subject, and may fairly claim 'to be an indispensable guide-book for the compensation lawyer." — Law Journal. 27, FLEET STREET, LONDON, E.G.