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 A 
 
 PRACTICAL TREATISE 
 
 OF 
 
 THE LAW 
 
 OF 
 
 VENDORS AND PURCHASERS 
 
 OF 
 
 ESTATES. 
 
 By sir EDWARD SUGDEN. 
 
 BONJE FIDEI VENDITOREM, NEC COMMODORUM SPEM AUGERE, NEC 
 JNCOMMODORUM COGNITIONEM OBSCURARE OPORTET. 
 
 Valerius Maximus, 1. vii. c. 11. 
 
 FROM THE NINTH LONDON EDITION. 
 WITH NOTES AND REFERENCES TO AMERICAN DECISIONS. 
 
 IN TWO VOLUMES. 
 
 VOL. I. 
 
 BROOKFIELD, MASS. 
 PUBLISHED BY E. & L. MERRIAM. 
 
 1836.
 
 
 Entered according to the Act of Congress, in the year 1836, 
 
 BY E. & L. MERRIAM, 
 in the Clerk's Office of the District Court of Massachusetts. 
 
 
 J».J^'^^■ 
 
 , ^. ^ b 
 
 £. AND L. M£RRIAM, PRINTERS.
 
 4 
 
 4 
 
 ADVERTISEMENT. 
 
 THE recent Decisions have been introduced into their 
 proper places ; and references have been made to all 
 the Reports of the modern Cases, as few have on their 
 shelves all the contemporaneous Reporters. The lan- 
 guage of the Law has been altered by the Real Property 
 Acts, and the text of this work has accordingly through- 
 out required alteration. No aj)ology is necessary for 
 introducing a view of those Acts in the Chapter upon 
 Title, as it is of deep importance that their contents 
 should be readily accessible. To prevent the too fre- 
 quent recurrence of new Editions, the Writer has been 
 induced to add upon this occasion considerably to the 
 usual number of copies ; and as that will deprive him 
 of an early opportunity of again correcting the Work, 
 he has revised it, with a view to this Edition, with all 
 the care and attention which his opportunities have 
 permitted. 
 
 Lincoln's Inn, 
 17 th May, 1834.
 
 CONTENTS 
 
 OF VOLUME I. 
 
 [27ie figures refer to the original pages as numbered at the bottom.'] 
 
 Page 
 Introduction ........ 1 
 
 CHAP. I. 
 
 OF SALES BY AUCTION AND PRIVATE CONTRACT. 
 
 I. Of the Auction Duty 
 II. Of Puffing 
 
 III. Of the particulars and Conditions of Sale 
 
 IV. General Observations 
 
 V. Duty on Appraisements . 
 
 13 
 23 
 30 
 45 
 54 
 
 CHAP. n. 
 
 OF SALES UNDER THE AUTHORITY OF THE COURTS OF EQUITY. 
 
 Sect. 1. Of the Proceedings from the Advertisements to 
 
 the Conveyance .... 55 
 
 Sect. 2. Of opening the Biddings ; and of rescinding the 
 
 Contract . . ..... 65 
 
 CHAP. HI. 
 
 OF PAROL AGREEMENTS AND PAROL EVIDENCE. 
 
 Sect. 1. Of the Interests which are within the Statute 75 
 
 Sect. 2. Of the Form and Signature of the Agreement 85 
 
 I. What is a sufficient Agreement . . ib.
 
 CONTENTS. 
 
 II. AVhal is a sufficient Signature by the 
 
 Party or his Agent . 
 III. Who is an Agent hiwfully authorized 
 Sect. 3. Of Parol Agreements not witiiin the Statute 
 I. Sales by Auction before a Master 
 
 II. Agreements admitted by Answer 
 III. Part Performance, &.c. 
 
 Sect. 4. Of the Admissibility of Parol Evidence to vary 
 or annul written Instruments , 
 I. Where there is not any Ambiguity 
 II. Where there is an Ambiguity 
 
 III, Where a Term is omitted or varied by 
 
 Mistake or Fraud . . . . 
 
 Page 
 
 99 
 103 
 108 
 
 ih. 
 110 
 114 
 
 13-2 
 
 ih. 
 
 151 
 
 158 
 
 CHAP. IV. 
 
 OF THE CONSEQUENCES OF THE CONTRACT. 
 
 Sect. 1. Of the Rule in Equity, that the Purchaser is 
 entitled to the Estate from the Time 
 of the Contract . . . .171 
 
 Sect. 2. Of Specific Performance J 91 
 
 I. With respect to the Vendor . . ih. 
 
 II. With respect to the Agreement itself 201 
 
 Sect. 3. Of the Remedies for a Breach of Contract . 216 
 
 CHAP. V. 
 
 OF THE CONSIDERATION. 
 
 Sect. J . Of unreasonable and inadequate Considerations 257 
 
 I. Of unreasonable Considerations . ih. 
 
 II. Of inadequate Considerations . . 259 
 
 III. or inadequacy where the Conveyance 
 
 is executed . . , . .261 
 
 IV. Of inadequacy where the Interest is 
 
 reversionary ..... 263
 
 CO.\TKNT3. VII 
 
 Page 
 
 Sf.ct. '2. Of the failure of the Consideration before the 
 
 Conveyance ..... 277 
 I. Of Loss by Fire, &.c. . . . ib. 
 
 II. Of the Death of the Person, for an 
 Annuity upon whose Life the Estate 
 nas sold ..... 280 
 
 CHAP. VI. 
 
 or THE PARTIAL EXECUTION OF A CONTRACT WHERE A VENDOR 
 HAS NOT THE INTEREST WHICH HE PRETENDED TO SELL; 
 AND OF DEFECTS IN THE QUANTITY AND QUALITY OF THE 
 ESTATE. 
 
 Sect. 1. Where the Vendor has not the Interest which he 
 
 sold 287 
 
 I. In what Cases the Vendor may enforce 
 
 a part Performance . />.. • *&• 
 II. In what Cases the Purchaser may en- 
 force it 30^ 
 
 Sect. 2. Of Defects in the Quality of the Estate . 307 
 
 Sect. 3. Of Defects in the Quantity of the Estate . 318 
 
 CKAP. VII. 
 
 OF THE TITLE WHICH A PURCHASER MAY REQUIRE. 
 
 I. Of the Root of the Title . • • • ^29 
 
 II. Of the Production of the Lessor's Title • 331 
 
 III. Of equitable and doubtful Titles ; of Fines 
 
 to bar Dower ; and of equitable Jointures . 339 
 
 IV. Of equitable Recoveries where the Tenant to 
 
 the Praecipe has the legal Estate . • 375 
 
 V. Of a Title under the Statutes of Limitations 386
 
 VUl 
 
 CONTENTS. 
 
 CHAP. VIII. 
 
 OF THE TIME ALLOWED TO COMPLETE THE CONTRACT. 
 
 Page 
 
 Sect. 1. Of Delays occasioned by the Neglect of either 
 
 Party 419 
 
 Sect. 2. Of Delays occasioned by the State of the Title 424 
 
 CHAP. IX. 
 
 OF THE abstract AND conve:^ance; the assignments of 
 terms ; attested copies and covenants for TITLE to 
 
 which a purchaser is ENTITLED ; OF SEARCHING FOR 
 incumbrances; and of relief in respect of INCUMBRAN- 
 CES. 
 
 Sect. 1. Of the Abstract and Conveyance . . . 447 
 Sect. 2. Oi Assignments of Terms .... 453 
 
 I. What Terms may be used upon an 
 
 Ejectment . . . . . ib. 
 
 II. Of the Merger of Terms . . .460 
 
 III. At whose Expense to be assigned, and 
 
 where Assignments may be dispens- 
 ed with 465 
 
 IV. Of presuming a Surrender of Terms 
 
 which have been assigned to attend 
 the Inheritance .... 470 
 V. Of the Protection afforded by a Term 
 
 assigned to attend . . .510 
 
 VI. W^here Terms attend the Inheritance 
 
 by Implication . . . .521 
 
 VII. Of the nature of a Term assigned to 
 
 attend 525 
 
 Sect. 3. Of attested Copies ...... 529 
 
 Sbct. 4. Of Covenants for Title ..... 533 
 
 Sect. 5. Of searching for Incumbrances .... 539 
 
 I. For Judgments . . . , ib.
 
 CONTENTS. IX 
 
 Page 
 
 II. For registered Instruments and Annu- 
 ities 549 
 
 Sect. 6. Of relief from Incumbrances .... 553 
 I. Where the Purchase-money has not 
 
 . been paid ..... i6. 
 II. Where it has been paid . . . 554 
 
 And therein of Defects in the Title 
 to the Estate. 
 
 VOLUME II. 
 CHAP. X. 
 
 OF INTEREST AND COSTS. 
 
 Sect. 1. Of Interest ....... 1 
 
 I. In what Cases payable . . . ib. 
 
 II. At what Rate 20 
 
 Sect. 2. Of Costs ....... 23 
 
 CHAP. XL 
 
 OF THE OBLIGATION OF A PURCHASER TO SEE TO THE APPLICA- 
 TION OF THE PURCHASE-MONEY. 
 
 Sect. 1. Of this Liability with Reference to real Estate 32 
 
 Sect. 2. Of this Liability with Reference to Leasehold 
 
 Estates 5^ 
 
 CHAP. XII. 
 
 OF THE vendor's LIEN ON THE ESTATE SOLD, FOR THE PUR- 
 CHASE-MONEY, IF NOT PAID. 
 
 I. In what Cases raised ... 57 
 
 II. Whether it extends to third Persons 67 
 
 III. Against whom it will be enforced . 73 
 
 VOL. I. B
 
 jj CONTENTS. 
 
 CHAP. XIII. 
 
 OF THE CONSTRUCTION OF COVENANTS FOR TITLE. 
 
 Page 
 
 Sect. I . Where they run with the Land ... 77 
 
 Sect. 2. Of their general Construction .... 81 
 I. To what and against whose Acts gene- 
 ral and limited Covenants extend 8!2 
 II. In what Cases restrictive Words extend 
 
 to all the Covenants in the Deed . 91 
 III. To what Remedy the Purchaser is en- 
 titled in case of a Breach , . lO-J 
 
 CHAP. XIV. 
 
 OF THE PERS,ONS INCAPABLE OF PURCHASING. 
 
 Sect. 1. Of Persons incapable of purchasing by the gene- 
 ral Rules of Law . . . .105 
 
 I. An absolute Incapacity . . . ib. 
 II. An Incapacity to hold, although an 
 
 Ability to purchase . . . lOG 
 III. An Incapacity to purchase, except sub 
 
 modo . . . . . .107 
 
 Sect. 2. Of Purchases by Trustees, Agents, &c. . . 109 
 
 I. Where avoided . . . . i6. 
 
 II. How they may be rendered valid . 119 
 
 1 . W^here the Trust is for Creditors . ib. 
 
 2. Where it is for Persons sui juris . 120 
 
 3. Where it is for Persons not sui juris 121 
 III. Of the Remedy against the Trustee, 
 
 &-C 122 
 
 CHAP. XV. 
 
 OF JOINT PURCHASES ; PURCHASES IN THE NAMr:S OF THIRD 
 PERSONS ; AND PURCHASES WITH TRUST-MONEY ; AND OF
 
 CONTENTS. XI 
 
 Page 
 THE PERFORMANCE OF A COVENANT TO PURCHASE AND 
 
 SETTLE AN ESTATE. 
 
 Sect. 1. Of Joint Purchasers ..... 127 
 
 Sect. 2. Of Purchases in the Names of Third Persons . 134 
 
 I. In the Names of Strangers . . ih. 
 II. In the Name of a Child, Grandchild, or 
 
 Wife 140 
 
 Sect. 3. Of Purchases with Trust-Money . . . 148 
 Sect. 4. Of the Performance of a Covenant to purchase 
 
 and settle an Estate . . .150 
 
 CHAP. XVI. 
 
 OF THE PKOTLCTION AND RELIEF AFFORDED TO rURCHASERS 
 BY STATUTES, AND BY THE RULES OF EQUITY. 
 
 Sect. 1 . Of Fraudulent and Voluntary Settlements ; and 
 Settlements with Powers of Revoca- 
 tion ...... 156 
 
 I. Of Frandulent Settlements . . ih. 
 
 II. Of Voluntary Settlements . . .159 
 
 III. Of their becoming vahd by matter ex 
 
 post facto . . . . .169 
 
 IV. Of Settlements with Powers of Revoca- 
 
 tion 179 
 
 Sect. 2. Of Protection from Charitable Uses . . .182 
 
 Sect. 3. Of Protection from Acts of Bankruptcy . . 183 
 
 I. Under the old Statutes . . . ib. 
 
 II. Under the Act of 46 Geo. 3 . .185 
 
 III. Under the Act of the 6th of the late 
 
 King 189 
 
 Sect. 4. Of Protection from Judgments and Recognizances 192 
 I. In the Case of Freehold Estates . . ib. 
 II. In the Case of Leasehold Estates . .198 
 III. Of Recognizances ..... 203 
 Sect. 5. Of Protection from Unregistered Deeds, *fcc. . 204 
 1. What Memorial is required by the register- 
 ing Acts 206
 
 XU CONTENTS. 
 
 Page 
 
 II. What Deeds ought to be registered . 211 
 
 III. Of the Exceptions in the Acts . . , 217 
 
 IV. Of the equitable Doctrine on the Acts in 
 
 regard to Notice . . . .219 
 
 V. Observations on a General Register . . 224 
 
 Sect. 6. Of Protection from Acts of Papistry . .241 
 
 Sect. 7. Of Protection from Defects in Recoveries . 245 
 
 Sect. 8. Of Protection from Defects in Sales for Land 
 
 Tax 249 
 
 Sect. 9. Of Protection from Crown Debts . . . 256 
 
 Sect. 10. Of Equitable Relief and Protection . . 258 
 
 I. Where the Purchaser has not Notice . ib. 
 
 II. The Eftect of Notice . . . .268 
 
 CHAP. XVII. 
 
 OF NOTICE. 
 
 I. Of Actual Notice 276 
 
 II. Of Constructive Notice . . . . 278 
 III. Of Evidence of Notice .... 298 
 
 CHAP. xvm. 
 
 OF PLEADING A PURCHASE . . . . 303
 
 CONTENTS. 
 
 Xlll 
 
 APPENDIX OF MS. CASES, &c. 
 
 No. 1. ^ 
 
 No. 2. > Notices under the Auction Duty Acts 
 
 No. 3. ) 
 
 No. 4. Conditions of Sale .... 
 
 No. 5. Agreements to be executed at a Sale by Auction 
 
 No. 6. Agreement for Sale by Private Contract 
 
 No. 7. Bratt v. Ellis 
 
 No. 8. Jones v. Dyke 
 
 No. 9. Wyatt v. Allen . 
 
 No. 10. Morshead v. Frederick 
 
 No. 11. A Bill for extending the Provisions of the Statute 
 
 of Frauds 
 No. 12. Ex parte Tomkins 
 No. 13. Observations on the Annuity Act, and on raising 
 
 the legal Rate of Interest 
 No. 14. Coussmaker v. Sewell 
 No. 15. Clay v. Sharpe 
 No. 16. Belch v. Harvey -. 
 No. 17. The King v. Smith 
 No. 18. Attorney-General v. Lockley 
 No. 19. Bret v. Sawbridge 
 No. 20. Forshall v. Coles 
 No. 21. Burton and others v. Todd, > 
 Todd V. Gee and others, > 
 No. 22. Duke of Bedford v. British Museum 
 No. 23. Rea v. Williams 
 No. 24. Lechmere v. Lechmere 
 No. 25. Fairfield v. Birch 
 No. 26. Sloane v. Cadogan 
 No. 27. Bury v. Bury 
 
 Page 
 
 311 
 
 312 
 315 
 316 
 317 
 319 
 320 
 ib. 
 
 322 
 326 
 
 ib. 
 336 
 337 
 339 
 341 
 349 
 352 
 358 
 
 359 
 
 361 
 366 
 367 
 369 
 370 
 381 
 
 INDEX 
 
 401
 
 INDEX TO CASES, 
 
 CITED OR INTRODUCED. 
 
 JVote, "v." follows the name of the plaintiff; "and," the name of the 
 defendant. 
 
 The Cases printed in italics are either cited or stated from MSS. or 
 have been examined with the Register's book, or searched for with- 
 out success. 
 
 ^The figures refer to the original pages as numbered at the bottom.^ 
 
 A. 
 
 Abbot v. Gibbs 
 
 and Jebb 
 
 and Rex 
 
 Abdy V. Loveday 
 Abel and Doe 
 Abingdon (Lord) and C 
 Abney and Merry 
 Abraham v. George 
 Abrahams and Fuller 
 Abrey and Wood 
 Aburrow and Bennett 
 Acherley v. Acherley 
 Ackernrian and Trand 
 Acland V. Gaisford 51 
 Ackland and Malpas 
 Acton and Cage 
 
 V. Pierce 
 
 Adams and Daniel 
 
 and Davids 
 
 Adams and Dickenson 
 Adams V. Fairbain 
 
 and Greenaway 
 
 and Hill 
 
 V. Taunton 
 
 V. Weare 
 
 Adamson v. Evitt 
 
 and Stevens 
 
 Adcock and Mertens 
 
 Page 
 
 ii. 32 
 ii 34 
 14, 15 
 ii. 261 
 255 
 hild ii. 8. 20 
 ii. 279 
 ii. 188 
 30 
 266. 273 
 ii. 375 
 ii. 135 
 ii. 299 
 ; ii. 10. 20 
 ii. 293 
 461, 462 
 213 
 104. 197. 
 200. 206 
 122, n. 
 122 
 151 
 231 
 517 
 ii. 51 
 257 
 8 
 310 
 40 
 
 Page 
 
 Adderly v. Dixon 202 
 
 Addison v. Dawson ii. 108 
 
 Adkinson and Hall ii. 259 
 
 Advocate General and Walker, 20 
 
 Aflalo and Goom 
 Agar v. Macklew 
 Ailsbie and Holmes 
 Alam v. Jourdon 
 Alcock and Goleborn 
 
 and Jeudvvine 
 
 and Knollys 
 
 Aldrich v. Cooper 
 Aldridge and Floyd 
 
 and Mesnard 
 
 and Nelson 
 
 Alexander and Crockford 
 
 102 
 
 276 
 
 632 
 
 ii. 300 
 
 ii. 259 
 
 218 
 
 184, 185 
 
 ii. 70 
 
 175 
 
 33 
 
 45 
 
 173. 
 
 217 
 
 Allan V. Bovver 127 
 
 Allen V. Anthony ii. 291 
 
 V. Bennet, 85, 86. 93. 100. 
 
 105 
 
 and Bull 229 
 
 (Lord) and Cane, ii. 1 13. 121 
 
 and Garbrand ii. 107 
 
 and Wilson ii. 26 
 
 Allen and JVyalt 46. 104; App. 
 
 No. 9 
 Alley V. Deschamps 424, 425. 
 
 428 
 AUeyn v. Alleyn 174. 179, 180
 
 XVI 
 
 INDEX TO CASES. 
 
 Page 
 
 Allington and Boteler 194 
 
 (Lord) and Napper ii. 103 
 
 Alliston and Stewart, 42, 295, n 
 
 296 
 Allpass V. Watkins 243 
 
 AIlsop and Doe ii. 223 
 
 Alsop V. Patten 120, 121 
 
 Alston and Taylor ii. 139 
 
 Alt and Bramley 25 
 
 Altham (Lord) v. the Earl of 
 
 Anglesea ii. 138 
 
 Altham's case 152 
 
 Ambrose v. Ambrose, 49. 57 •, 
 
 ii. 135, 136 
 Amcourt v. Elever 245 
 
 Amy's case 10 
 
 Ancaster (Duke of) and Earl 
 
 ofTyrconnel 36 
 
 Anderson and Lord Ormond 90 
 
 and Peters 566 
 
 Anderton and Robinson 553, n. 
 
 Andover (Lady) and Sir James 
 
 Lowther 
 Andrew v. Andrew 
 V. Wrigley, ii. 
 
 Andrews and Back 
 Andrew's case 
 Andrews and Charles 
 
 and Doe 
 
 V. Emerson 
 
 V. Emmott 
 
 and Sir Darcy Lever 
 
 and Maddison 
 
 438 ; ii. 1 
 
 219 
 
 52, 63. 55, 
 
 56. 275 
 
 ii. 147 
 
 325, 326 
 
 257. 362 ; 
 
 ii. 57 
 
 ii. 299 
 
 67 
 
 ii. 
 
 ii. 
 
 ii. 
 
 Pag 
 
 375 
 135 
 139 
 
 Anglesea (^Earl of) and Lord 
 
 Altham ii. 138 
 
 (Earl of ) V. Annesley 148 
 
 Annesley and Earl of Anglesea ib. 
 
 V. Ashurst 64 
 
 V. Muggridge, 48, 49 ; ii. 28 
 
 and Errington 202 
 
 (Lord) and Hovenden, 394, 
 
 395. 397 
 
 (Lord) and Saunders, 254. 
 
 397. 298 n. 
 Anonymous (2 Cha, Ca. 19) 562 
 
 (2 Cha. Ca. 53) 
 
 — (2 Cha. Ca. 136) 
 
 — (2 Cha. Ca. 161) 
 
 — (2 Cha. Ca. 208) 
 
 198 
 
 ii. 286 
 
 ii. 304, n 
 
 3071 
 ii. 259 I 
 
 Anonymous (1 Freem. 486) 119 
 
 (1 Freem. 450) 
 
 (2 Freem. 106) 
 
 (2 Freem. 128) 
 
 (2 Freem. 137) 
 
 (2 Freem. 155) 
 
 (1 Vern. 318) 
 
 (1 Ventr. 361) 
 
 n. 82 
 
 320. 553, 
 
 554. 660 
 
 119. 131 ; 
 
 ii. 141 
 
 ii. 290 
 
 191 
 
 ii. 281 
 
 77, n. 81 
 
 (2 Ventr. 46) ii. 82 
 
 (2 Ventr. 36 1, No. 2) 542 ; 
 
 ii. 306 
 (1 Ventr. 361, No. 3) ii. 135 
 
 (Carth. 15) ii. 127 
 
 (Mose. 96) ii. 32. 38 
 
 (Sel. Cha. Ca. 57) ii. 149 
 
 (Skin. 159) 168 
 
 (Skin. 404) ii. 298 
 
 (5 Vin. 522, pi. 38, 
 
 4 Geo.) 147 
 
 (5 Vin. Abr. 521. pi, 32) 
 
 ii. 133 
 
 (5 Vin Abr. 522, pi. 38.) 126 
 
 (5 Vin. Abr. 523, pi. 40) ib. 
 
 (1 Show. 90) 389, n. 
 
 (1 Salk. 153) ii. 34, n. 
 
 (11 Mod. 5) 627 
 
 (1 Lord Raym. 182) 81 
 
 (1 Str. 95) 152 
 
 (3 Atk. 270) ii. 301 
 
 [Lofft. 460) ii. 82 
 
 (1 Bro. C. C. 158, 6 Ves. 
 
 jun. 24, cited) 261 
 
 (Dougl. 384, cited) 158, n. 
 
 (2 Dick. 497, n.) 250 
 
 (2 Ves. 663) 479 
 
 (1 Ves. jun. 453) 66. 69 
 
 (2 Ves. jun. 286) 69 
 
 (2 Ves. jun. 335) 60 
 
 [2 Ves. jun. 487) 66 
 
 (5 Ves. jun. 148) ib. 
 
 (6 Ves. jun. 24, cited) 261 
 
 ■ (6 Ves. jun. 470, cited) 127 
 
 (6 Ves. jun. 513) 69 
 
 (1 Trea. Eq. 211, n. r.) 304 
 
 (3 East, 340, cited) 20 
 
 (6 East, 611) 77, n. 
 
 Anonymous (Contract, MS.), 352 
 Anonymous (3 Mad. 494) 67 
 (3 Madd. 495) 224 
 
 (E. T. 1790) 304
 
 INDEX TO CASES. 
 
 XVll 
 
 Page 
 
 Ahoiujmous (Practicf, MS.) 60, n. 
 Anonymous (Ch. 25 July 1808; 38 
 
 (1 Camp. Ca. 491, n.\ ii. 188 
 
 Anonymovs (Ii. I. Hall, 16 July 
 
 1816, MS.) 62. 227 
 
 Anseil and Meres 
 Ansley and Farebiother 
 Anson v. Towgood 
 Jinson {Lord) and Winter 
 
 Anspach (Margravine of) v. 
 
 Noel 
 Anthony and Allen 
 Appleton V. Binks 
 Appowell V. Monnoux 
 Archbold and Magrane 
 Archer and Barraud 
 
 and Collins 
 
 and Doe 
 
 Ardcock and Sharp 
 Ardesoife v. Bennet 
 Ardglasse (Earl of) v. 
 
 champ 
 Ark Wright and Crosby 
 Armiger v. Clarke 
 Armitage and Mason 
 
 133 
 
 22 
 
 62 
 
 ii. 57, 
 
 58, 59 
 
 and Pillinff 
 
 Armstrong and Maguire 
 Arnald v. Arnald 
 Arnold and Bechinall 
 
 and Lee 
 
 and Morrison 
 
 224 
 
 ii. 291 
 
 53 
 
 ii. 77, n. 
 
 205. 215 
 
 9. 36 
 
 ii. 310 
 
 ii. 272 
 
 340 
 
 174, 175 
 
 Mu.s- 
 
 264 
 ii. 327 
 216 
 105. 109. 
 . 206 
 ii. 300 
 ii. 272 
 183 
 ii. 260 
 ii. 77, n. 
 370 
 ii. 301 
 248 
 445 
 ii. 62, n. 
 
 Arnot V. Biscoe 
 Arthur and Macnamara 
 Jiriin^stall and Tyrer 
 Arundel v. Bidlake 
 
 and Day ii. 304, n. 306 
 
 Ashdownand Stileman ii. 145. 1P6 
 Ashley v. Baillie ii. 278. 280 
 
 and Harvey ii. 295 
 
 Ashlin and Greaves 40. 133 
 
 Ashton and Nash ii. 85 
 
 Ashurst and Annesley 64 
 
 Askew and Osbaldeston 353 ; ii. 
 
 28 
 Aspinall V. Kempson 50 ' 
 Astley and Dixon 226, 227 
 Aston v. Aston 
 and Culpepper 
 
 Page 
 
 Atcherley v. Vernon, 171. 174, 175 
 Atchison v. Dickson 278, n. 
 
 Atkins and Hope 133 
 
 v. Rowe ii. 133 
 
 Atkinson and Bowles 317 
 
 Attenborough and Williams, 
 
 62. 67 
 Attersoll and Blake ii. 330 
 
 Attorney-General v. Back- 
 house ii. 125, n. 292 
 
 V. Ba^g ii. 143 
 
 v. Cast Plate Glass Com- 
 pany 154 
 —J — and Christie 21, 22 
 
 V. Day 65. 109. 189 
 
 V. Lord Dudley ii. 115 
 
 V. Forster 157 
 
 v. Gower, 301 ; ii. 278. 306 
 
 v. Griffith ii. 125, n. 
 
 V. Parker 157 
 
 V. Sands, 463. 513.515. 521. 
 
 525. 528 
 Attorney- General v. Scott, 517, n. 
 
 v. Taylor 20 
 
 and Thruxton 625. 527, 528 
 
 V. Vigor 182 
 
 Atwood and Moth 265 
 
 Attwood and Small 4. 205. 258. 
 261.565; ii. 126 
 Aubrey v. Fisher 38 
 
 Auriol and Mills ii. 104 
 
 Austen and Davies ii. 264, 265 
 
 v. Halsey ii. 70 
 
 Austin and Crowder 28 
 
 Austwick and Maddeford 261 
 
 Aveling v. Knipe ii. 127 
 
 Awbrey v. Keen 654 
 
 Ayers and Fain ii. 103 
 
 Ayerst and Boys 89 
 
 Aylesford's (Earl of) case 116 
 Ayliffe v. Murray ii. 120 
 
 B. 
 
 Back v. Andrews 
 
 v. Kett 
 
 and Turner 
 
 ii. 147 
 
 182 
 
 ii. 261 
 
 — V. Curzon 
 
 VOL. I. 
 
 ii. 304 
 
 ii. 32. 48. 
 
 281 
 
 ii. 307 
 
 C 
 
 Backhouse and Attorney- 
 General ii. 12.5, n. 292 
 
 and Bedford, ii. 220 
 
 Badcock, e.r parte ii. 109 
 
 , Baddall and Gibbons, ii. 61, 62. 74
 
 INDEX TO CASES. 
 
 Pa«e 
 
 Ba(Jen v. Earl of Pembroke 172. 
 
 527 
 Bage, ex parte ii. 109. 119 
 
 Bagenal and Whaley 96. 115 
 
 Bagg and Attorney-General, ii 143 
 Baghlehole v. Walters 313 
 
 Bagott and Blakeney, 264 ; ii. 272 
 Baikfe v. Chandless 652 
 
 Bailey v. Ekins ii. 38 
 
 Bailey and Hays 289. 345. 455. 
 506 ; ii. 25 
 
 V. Tyrer 445 
 
 Baillie and Ashley, ii. 278. 280 
 
 V. Chaigneau 66 
 
 Bailiffs, &c. of Tewkesbury v. 
 
 Bricknell 157 
 
 Baily and Lamas ii. 132, 133 
 
 and Stent 277, 278 
 
 and Stevens 191 
 
 Bainbridge and Bruce ii. 28 
 
 Bainton and Lambert ii. 113 
 
 Baker v. Bent 273 
 
 V. Child 197 
 
 JBaA-erand Cuthberi, 291 ; ii. 42. 45 
 
 V. Bibbiti 358 
 
 V. Morgan 58 
 
 V. Paine 168 
 
 Baker and Smith ii. 135 
 
 and Squire 258 
 
 and Taylor (1 Dan. 71) ii. 290 
 
 and Taylor (5 Price 306) 
 
 ii. 292 
 293 
 282 
 45. 342 
 217 
 i. 32. 34 
 274 
 116 
 ii. 36 
 ii. 149 
 ii. 167 
 223 
 109 
 ii. 120 
 394 
 ii. 78 
 222 
 
 Baldey v. Parker 
 Baldwin v. Boulter 
 
 and Cane 
 
 - and Echliff 
 
 and Lloyd 
 
 V. Rochfort 
 
 Balfe and Kine 
 Balfour V. Welland 
 Balgney v. Hamilton 
 Ball V. Bumford 
 
 and Gordon 
 
 and Symonds 
 
 Ballard and Crowe 
 
 and Hercy 
 
 Bally V. Wells 
 Balmanno v. Lumley 
 Banbury (Earl of) and Bisco, 
 
 ii. 293 
 Banes and Croyston 110 
 
 Banks v. Sutton 517 
 
 Barber and Davy 
 
 V. Gamson 
 
 and Lea 
 
 V. Morris 
 
 Page 
 
 ii. 2. 8, 9 
 
 ii. 331 
 
 84 
 
 255 
 
 Barchard and Low 262 
 
 Barclay v. Raine 532 
 
 Barker and Bramton ii. 306 
 
 V. Duke of Devon ii. 33 
 
 V. Hill 172 
 
 V. Holford 60 
 
 V. Harper 62 
 
 and Preston 66 
 
 Barkley and Jones 246 
 
 Barksdale v. Morgan 325 
 
 Barnard (Lord) and Vane 
 
 553 ; ii. 279 
 Barnardiston (Sir J.) v. Lin- 
 good 264 
 Barnes v. Crowe 181 
 
 and Freeman 454 
 
 and Walker 262 
 
 Barnfather v. Jordan ii. 107 
 
 Barns v. Canning ii. 281 
 
 Barnston and Stackhousc 395 
 
 Barnwell v. Harris 288, 289. 329. 
 343. 350. 363 
 Barraud v. Archer 9. 36 
 
 Barrett v. Blake 58 
 
 V. Gomeserra 116. 259 
 
 and Morris ii. 129 
 
 Harrington v. Home 198 
 
 Barrow and Hilton 230 
 
 Barry v. Lord Barry more 104 
 
 and Conran 68, n. 
 
 and Phillimore, 101, 102. 105 
 
 Barrymore (Lord) and Barry 104 
 Barstow v. Kilvington 164 
 Bartch and Kilchin 157 
 Bartiett v. Downes 502 
 V. Pickersgill, 114 ; ii. 136. 
 
 139 
 
 V. Tuchin 432 
 
 and White 49 
 
 Barton and Buckland ii. 375 
 
 V. Fitzgerald ii. 93. 97 
 
 and Richards, 238. 447. 451. 
 
 541 
 Bartram and Hudson 444 
 
 Barvvick and Say 203 
 
 Bascoi V. Serra ii. 296 
 
 Baskerville and Dickinson, 122, n. 
 Basket v. Pierce 454
 
 INDEX TO CASES. 
 
 Pa«c 
 
 Basset V. Nosworthy, ii. 259. 306 
 
 and Upton ii. 157 
 
 Bateman and Cox ii. 149 
 
 V. Phillips 85. 241 
 
 and Stephens 2G2 
 
 Bateman v. Shore ii. 130, n. 
 
 Bath (Earl of) v. Sherwin 214 
 Battaly and Kdlin ii. 266 
 
 Battersbee v. Farrington ii. 166 
 Baugh V. Price 264, 265, 266 ; 
 
 ii. 266 
 ii. 14 
 368 
 338 
 247 
 329, n. 
 ii. 144 
 ii. 188 
 ii. 70 
 157 
 ii. 376 
 265 
 ii. 53 
 348 
 249 
 ii. 355, n. 
 171. 174. 
 177 
 ii. 223 
 101, n. 
 
 Bawden and Right 
 Baxter v. Conolly 
 
 and Earl 
 
 V. Lewis 
 
 Baylis v. Manning 
 
 V. Newton 
 
 Bayly v. Schofield 
 Bayne and Trimmer 
 Baynham v. Guy's Hospital 
 Beable v. Dood 
 Beake and Wiseman 
 Beane and Ithell 
 Beard and Chandler 
 
 and Right 
 
 Beard and JVesicoit 
 Beardsham and Davie 
 
 BeatnifFv. Smith 
 
 Beatyv. Beaty 
 
 Beauclerk (Lord) and Cant 
 
 ii. 301 
 165 
 37 
 ii. 157 
 239. 288, 
 
 Beaumont v. Bramley 
 
 V. Dukes 
 
 and Needham 
 
 Beaurain and Turner 
 
 Beazley and Welford 
 
 Bechinall v. Arnold 
 Beckett and Chater 
 
 V. Cordley 
 
 V. Kendall 
 
 Beckford v. Beckford 
 V. Wade 
 
 289, n. 
 95. 101 ; 
 
 ii. 296 
 
 ii. 260 
 84 
 
 ii. 296 
 231. 265 
 
 ii. 140 
 388. 395 
 
 ii. 220 
 
 Bedford v. Backhouse 
 Bedford {Duke of) v. Trustees 
 of the British JMuseum, ii. 81 ; 
 App. No. 22 
 
 (Earl of) and Clare, ii. 263 
 
 (Duke of) and Charle- 
 
 wood 77, n. 94. 104 
 
 Pago 
 
 Bedwell and Townley, 187 ; ii. 01 
 Beech and Taylor 114 
 
 Beechey and Pennington ii. 307 
 Beete v. Bidgood ii. 20 
 
 Beevor v. Simpson 355 
 
 Belch V. Harvey, 395; App. No. 16 
 Bell V. Cundall 
 
 and Hutchinson 
 
 V. Howard 
 
 V. Phyn 
 
 and Scott 
 
 11. 269 
 
 5 
 
 148. 428 
 
 ii. 130, n. 
 
 ii. 167 
 
 Bellaers and Wilicox 340 
 
 Bellanuj v. Liversidge 370 
 
 Bellasis (Lady) v. Compton, ii. 138 
 Bellew V. Russell ii. 112 
 
 Bellringer and Rex 157 
 
 Belworth v. Hapell 287 
 
 Bengough v. Edridge ii. 357, n. 
 Bennet v. Aburrow 830 
 
 and Allen, 85, 86. 93. 100. 
 
 105 
 Bennet and Ardesoife, or Wil- 
 son 174, 175 
 Bennet College v- Carey, 61, 208 ; 
 
 ii. 24 
 
 V. Mayhew ii. 149 
 
 V. Musgrove ii. 172 
 
 exparte,'n. 109, 110. 113. 124 
 
 31.33. 
 
 242 ; ii. 18 
 
 58 
 
 187 
 
 ii. 101 
 
 ii. 306 
 
 ii. 293 
 
 185 
 
 35 
 
 264 
 
 135 
 
 265 
 
 273 
 
 ii. 34 
 
 229 
 
 307 
 
 264 
 
 289. 436 
 
 264 
 
 Bennett and Bradshaw 
 
 • V. Harnell 
 
 and Lawes 
 
 and Hughes 
 
 and Kelsall 
 
 and Moore 
 
 V. Lord Tankerville 
 
 V. Womack 
 
 Bensley v. Burdon 
 Benson and Doe 
 
 and Turton 
 
 Bent and Baker 
 Benyon v. Collins 
 Berkley v. Dauh 
 
 and Weston 
 
 Bernal v. Donegal 
 
 and Wood 
 
 Berney v. Pitt 
 Berry v. Young, 38. 47. 419. 426. 
 629. 531 
 Besant v. Richards 136 
 
 Best V. Stamford 522 
 
 11. 
 
 11.
 
 XX 
 
 INDEX TO CASE3. 
 
 Fuse 1 
 
 Betesworth (Dr ) v. Dean and 
 
 Chapter of St. Paul's 212 
 Bethill and Floyd 325, 326 
 
 Bethune v. Farebiother 234 
 
 Blackston and Lavender, 
 
 Bettel and Webb 
 Bevant v. Pope 
 Beversham and Tyler 
 Bevill's case 
 Bevis and Whitchurch 
 
 247! 
 
 359 ; 
 
 324 
 
 393 
 98. 112, 
 113, 114, 115 I 
 Bewley and Noel 350 
 
 Bexvvell V. Christie 23 
 
 Bickerstaff and Hayes ii. 83 
 
 Bickerton v. Burrell 234 
 
 Bicknell and Evans, 468. 489. 520 ; 
 ii. 263. 300 
 Biddulphv. St. John, ii. 222. 297. 
 
 301 
 Bidgood and Beete ii. 20 
 
 Bidlake and Arundel ii. 62, n. 
 
 Biggs and Pope 252 
 
 Billing and Farrer 342 
 
 Bill and Humble ii. 33. 55 
 
 Bingham v. Bingham 254 
 
 Binion (Sir G.) v. Stone, ii. 143 
 Binks and Appleton 53 
 
 Binks V. Lord Rokebij, 296 ; ii. 23. 
 
 32 
 Binstead v. Coleman 116. 133 
 
 Birch V. Bletchley 99 
 
 V. Blagrave ii. 144 
 
 Birch and Fairfield, ii. 165 ; App. 
 No. 25 
 
 Birch and Fox 
 
 V. Haynes 
 
 and Watson 
 
 V. Wright 
 
 a 
 
 Birch and flood 
 
 Bird V. Boulter 
 
 Birkhead and Wortley, 
 
 Birt and Meder 
 
 Bisco V. Earl of Banbury, 
 
 V. Bret, 
 
 and Arnot 
 
 V. Perkins 
 
 V. Wilks 
 
 Bistolli and Phillips 
 Blacket v. Langlands 
 Blackburn v. Gregson, ii. 62. 66. 
 
 74 
 
 V. Scholes 47 
 
 V. Stace 226 
 
 227 
 
 223 
 
 68 
 
 252 
 
 131 
 
 107 
 
 ii. 284 
 
 ii. 307 
 
 li. 293 
 
 223 
 
 ii. 301 
 
 ii. 269 
 
 ii. 25 
 
 43 
 
 ii. .303 
 
 Page 
 
 ii. 167. 
 
 179 
 
 Blackwell and Boyer 67. 292, 293 
 
 Blackwood and Macartney, ii. 19 
 
 Blades v. Blades ii. 222 
 
 and Winter ii. 2 
 
 Blagden v Bradbear, 87. 90. 93, 
 
 94. 105. 109. 113 
 
 Blagrave and Birch ii. 144 
 
 Blake v. Attersoll ii. 330 
 
 and Barrett 68 
 
 v. Sir Edward Hungerford 
 
 ii. 259 
 
 and D'Arcy 517, n. 
 
 V. Foster 397 
 
 and Earl of Macclesfield 70 
 
 and Reynolds 63 
 
 Blake's case 397 
 
 Blakeney v. Bagott, 264 ; ii. 272 
 Blakeston v. Martyn 
 Blakey v. Porter 
 
 548 
 241 
 154 
 423 
 131 
 157 
 146 
 ii. 113 
 99 
 344 
 
 Bland and Doe 
 Blandford and Carpenter 
 Blandist and Miller 118. 
 
 Blankeley v. Winslanley 
 Blemerhasset v. Pierson 
 Blennerhasset v. Day 
 Bletchley and Birce 
 Bliss v. Collins 
 
 v. Vancouver, 10. 229. 295 ; 
 
 ii. 24 
 Blogg and Holmes ii. 107 
 
 Bloodworth and Radford, ii. 185 
 Blore v. Sutton 91. 101. 231 
 
 Blosse V. Clanmorris 340 
 
 Blount V. Blount ii. 4. 8, 9. 20 
 
 Blundell v. Brettargh 
 Blyth V. Elniherst 
 
 Blylhmore and Barker 
 Boakes and Kingdoine 
 Boatwright and Cubbidge 
 Boardman v. Mostyn 
 Bodinaton and W'ilker 
 
 275 
 223 
 
 ii. 309 
 
 ii. 300 
 
 ii. 53 
 
 128 
 479 ; ii. 
 286 
 Bodmin v. Vendebendy, or Roth- 
 
 erham, 517, 518, 519 ; ii. 306 
 Boehm and Rogers ii. 14 
 
 v. Wood 223. 250. 444 
 
 Bogan and Sir C. Shovel 319 
 
 Bolingbroke's (Lord) case 307 
 Bolland and Flight 201. 208 
 
 Bolton (Lord) and Deverel, 331. 
 
 335
 
 INDEX TO CASES. 
 
 XXI 
 
 Page 
 
 Bond and Chapman 628 
 
 V. Hopkins 397 
 
 V, Kent ii. 60 
 
 and Wright 222 
 
 Bonham, or Thompson, and 
 
 fVilliams 440 
 
 Bonner v. Johnston 226, 227 
 
 Bonnett V. Sadler 211 
 
 Bonney v. Ridgard, ii. 53, 54, 55 
 Boone v. Eyre 422 
 
 Boore and Marquis of Hert- 
 ford • 437 
 Booth and Cook 156 
 
 and Hope 216 
 
 and Whale ii. 54 
 
 Boothby V. Walker 227 
 
 Boston and the King, 114; ii. 139 
 Boswell V. Mendham 353 
 
 Bosworth and Stratford 89 
 
 Boteler V. Aliington 194 
 
 Botelers and Heale, ii. 61, 62. 74 
 Botting V. Martin 79 
 
 Bottomley v. Lord Fairfax 519 
 Boughton V. Jewell 530 
 
 Boulter and Bird 107 
 
 and Baldwin 282 
 
 Boulton and Doe 249 
 
 Bourne and Hunt 388 
 
 Bovie's (Sir Ralph) case, ii. 166 
 Bowden and Jones 316 
 
 Bowen and Morris 53. 86 
 
 Bower and Allan 127 
 
 Bowerbank and De Kavilland, 
 
 ii. 17 
 Bowers v. Cator 116 
 
 Bowes V. Heaps 266 
 
 and Lady Strathmore 
 
 (Term Rep.) 181 
 
 and Lady Strathmore 
 
 (Yes. jun.) 
 Boicles V. Atkinson 
 Bowles V. Rogers, 41. 171. 
 
 519 
 317 
 
 74 
 
 n 
 
 V. Stewart 
 
 Bowyer v. Bright 
 Boydell V. Drummond 
 Boyer v. Blackwell, 
 Boyman v. Gutch 
 Boys and Ayerst 
 and Dies 
 
 7,8. 
 
 397 
 
 294 
 
 94 
 
 67. 292, 293 
 
 244 
 
 89 
 
 ii. 281 
 
 Page 
 
 Bracebridge v. Cook 463 
 
 V. Heald 74, n. 
 
 Bradbear and Blagden, 87. 90. 93, 
 
 94. 105. 109. 113 
 
 Bradley and Brookfield 67 
 
 and Westcott ii. 375 
 
 Bradshaw v. Bennett, 31. 33. 242 ; 
 
 ii. 18 
 227 
 20 
 
 n. 
 
 II. 
 
 V. Bradshaw 
 
 Bradshmu v. JSlidgeley 
 Bradstreet and Shannon, 130. 201 
 
 ii. 17 
 
 104 
 
 257 
 
 52 
 
 228 
 
 25 
 
 165 
 
 266 
 
 ii. 306 
 
 ii. 299 
 
 ii. 274 
 
 202 
 
 261. 265 
 
 64. 434 
 
 Bragg and Calton 
 Braithwaite and Howard 
 Brakespear v. Innes 
 Brarnah and Wheeler 
 Bramby v. Teal 
 Braniley v. Alt 
 
 and Beaumont 
 
 Bramston and Whichcote 
 Bramton v. Barker 
 Brand v. Ackerman 
 Brandling v. Ord 
 Brandon and Flint 
 Brandt and Dews 
 Brasier and Lechmere, 
 Bralt V. Ellis, 45. 235. 238 ; App. 
 
 No. 7 
 Bray and Lowndes 248. 342 
 
 Braybroke (Lord) v. Inskip, 351 ; 
 ii. 51. 262 
 Brayne and MoUett 79 
 
 Breach and Doe 250 
 
 Brealey v. Collins 310 
 
 Brebner and Baton 304 
 
 Bree v. Holbech 554. 564 
 
 Breedon v. Lreedon ii. 34 
 
 Bret and Biscoe 223 
 
 Breton (Le) and Hargrave, ii. 277 
 
 Brace v. Duchess of Marl- 
 borough, 479. 547 ; 
 
 Brett V. Marsh 
 
 Brett V. Sambridge, 626 
 
 Brettargh and Blundell 
 Brewer and King 
 Bricknell and Bailiffs, &c. 
 
 Tewksbury 
 Bridger v. Rice 
 Bridges and Kingdome, 
 
 and Philips 
 
 V. Robinson 
 
 Bright and Bowyer 
 and Wall " 
 
 ii. 307 Bright\ven and Doe 
 
 566 
 
 ; App. 
 
 No. 19 
 
 275 
 
 ii. 168 
 
 of 
 
 167 
 
 207 
 
 ii. 147 
 
 379 
 
 ii. 13 
 
 294 
 
 186 
 
 • 350
 
 XXII 
 
 INDEX TO CASES. 
 
 Page 
 
 Brig's case 208. 235. 554 
 
 Bringloe and Mallom ii. 108 
 
 Brisco and Huddleson 88, 89 
 
 Bristow and Moneypenny 181 
 
 and WaddingtoJi 82 
 
 British JWuseuin ( Trustees of the) 
 
 and Duke of Bedfordy ii. 81 
 Brockett and Oxwick 
 Brockhurst and Whitbread 
 
 Brockwell and Winter 
 Brodie v. St. Paul 
 
 Brook V. 
 
 Earl V. Bulkeley 
 
 Brooke and Parker 
 Brookes v. Lord Whitworth 
 Brookfield v. Bradley 
 Brooks V. Day 
 
 V. Snaith 
 
 and Sowerby ii. 
 
 II. 
 
 323 
 
 113. 
 
 115 
 
 79 
 
 91 
 
 221 
 
 ii. 269 
 
 ii. 297 
 
 229 
 
 67 
 
 552 
 
 67 
 
 286 
 
 Broome v. Monck, 174. 180. 189. 
 
 191 
 
 278 
 
 ii. 95 
 
 ii. 92 
 
 11. 299. 301 ; 
 
 ii. 22 
 
 ii. 170 
 
 158, n. 
 
 5 
 
 ii. 129 
 
 262 
 
 217 
 
 204 
 
 517 
 
 379 
 
 ii. 161. 167 
 
 227, 228 
 
 168 
 
 196 
 
 174 
 
 265 
 
 ii. 14 
 
 241 
 
 333. 447, n. 
 
 Browne v. Fenton, 3. 42. 48. 290. 
 
 299 309 ; ii. 20 
 
 Browne and Kenny ii. 267. 295 
 
 V. Odea ii. 266 
 
 Browning and Burden 114 
 V. Wright 162; ii. 81. 94 
 
 Brotherton v. Hatt 
 Broughton v. Conway 
 Brown v. Brown 
 and Burnell 
 
 V. Carter 
 
 and Chapman 
 
 and Corbett 
 
 and Elliot 
 
 and Evans 
 
 Broicn v. Frost 
 Brown and Fain 
 
 V. Gibbs 
 
 and Goodrick 
 
 Brown V. Jones 
 Broum v. Kelty 
 
 and Langley 
 
 V. R a indie 
 
 Brown and Robson 
 Brown and Ryle 
 
 V. Southhouse 
 
 and Street 
 
 and Temple, 
 
 Page 
 
 Brownlow (Lord) and Franklin 
 
 172. 343 
 Bruce v. Bainbridge ii. 28 
 
 V. Rogers 262 
 
 and Warwick 83 
 
 Brushfield and Howes ii. 88 
 
 Bruyn's (Sir John) case 325 
 
 Bryant v. Busk 278 
 
 Brydges v. Duchess of Chandos 
 
 176, n. 
 Brydges and Philips- 379 
 
 Brydges and Stephens . 463 
 
 Brymer and Washington ii. 374 
 Bubb's case 172 
 
 Buck V. Lodge 227 
 
 Buckhouse v. Crossby, 85. 87. 147 
 Buckhurst's (Lord) case 535 
 
 Buckingham (Marquis of) 
 
 and Curtis 217 
 
 (Earl of ) V. Drury 362, 
 
 363, 364 
 
 (Duke of) and Philips, 211 
 
 and Smallcomb ii. 199 
 
 Buckland v. Barton ii. 375 
 
 and Floyd 116 
 
 Buckle and Cannel 213 
 
 V. Mitchell, ii. 173, 174, 175 
 
 Buckley and Hill, 206, 207. 319, 
 
 320 323. 
 
 Buckmaster v. Harrop, 106. 109. 
 
 125. 189 
 
 Bucknell and Weakley ii. 155 
 
 Bucks (Earl of) v. Druiy, or 
 
 Drury v. Drury, 362, 363, 
 
 364 
 Budgin and Christ's Hospital, ii. 
 
 147 
 Bulkeley and Earl Brook, ii. 269 
 Bull V. Allen 229 
 
 V. Price 54 
 
 Buller V. Buller 188 
 
 Bidler and Mortlock,6A. 104. 201. 
 206, 207. 259. 261. 305. 
 Buller V. Waterhouse ii. 179 
 
 Bullock V. Bullock 349 
 
 and Feme 118. 131 
 
 and Rex ii. 188 
 
 V. Sadlier ii. 157. 306 
 
 V. Thome ii. 180 
 
 Bumford and Ball ii. 167 
 
 Burdett v. Wright 492
 
 INDEX TO CASES. 
 
 Biudon and Bensley 
 
 V. Browning 
 
 — V. Kennedy 
 
 Burg's (Lady) case 
 Burgess v. Wheate 
 Burgh V. Francis 
 
 V. Wolf 
 
 Burgis and Rawlins 
 Burke v. Crosbie 
 Burke V. Dawson 
 Burkett V. Randall 
 Burlace (Sir John) v 
 
 Burnaby v. Griffin 
 Burnell v. Brown 
 
 u. 
 
 541 
 
 479 
 
 Page 
 
 264 
 
 114 
 
 ii. 203 
 
 ii. 169 
 
 283 
 
 ii. 264 
 
 ii. 261 
 
 179 
 
 58 
 
 175 
 
 131 
 
 II. 
 
 Burnett v. Lynch 
 Burney v. Poyntz 
 Burnham and Smith 
 Burrell and Bickerton 
 Burvell and Coverly 
 Burrell's case 
 Burrough v. Martin 
 
 V. Skinner 
 
 Burrough's case 
 Burroughs v. Elton 
 
 V. Oakley 225, 226, 227 
 
 Burrovghs and Saundeys, ii. 114 
 Burrowes v. Lock, 6, 7. 12. 259 ; 
 
 ii. 263 
 
 and Lees 
 
 and Walker 
 
 '. Cooke, 
 
 ii. 260 
 194 ; ii. 25 
 11. 299. 301 ; 
 ii. 22 
 39 
 ii. 64 
 426. 434 
 234 
 288 
 ii. 158 
 10 
 47 
 ii. 147 
 ii. 130 
 
 u 
 
 54 
 
 . 146 
 
 152 
 
 ii. 52 
 
 ii. 24 
 
 i 
 
 Burt and Doe 
 Burting v. Stonnard 
 i)Urton and Scorbrough, 
 Burton V. Toddy ii. 10 ; A pp. No. 
 
 21 
 
 Burwell and Wyat ii. 223 
 
 Bury V. Bury ii. 279. 293 ; 
 
 App. No. 27 
 
 Bushel! V. Bushell, ii. 220, n. 222. 
 
 285 
 Busk and Bryant 278 
 
 Butchery. Butcher (Ves.jun.) 123 
 
 V. Butcher (New Rep.) 156 
 
 V. Stapely 116; ii. 277 
 
 Bute (Earl of) and Sir John Eden 
 
 156 
 Butler V. Capel ii. 331 
 
 and Lawrenson, 207, n. 305 
 
 V. Swinnerton, ii. 85. 87. 90 
 
 Butterwick and Rob 165 
 
 Page 
 
 Buxton V. Cooper 4. 205. 257 
 Buxton, ex 'parte ii. 110, n. 
 Byrn and Price ii. 115. 126 
 Byrne and Dillon ii. 203, n. 
 Byron and Creswell 362 
 (Lord) and Deardon 506 
 
 C. 
 
 Cadell V. Palmer ii. 357, n. 
 
 Cadman v. Horner 202. 26 1 
 
 Cadogan (Lord) and Lord 
 
 Montford ii. 266 
 
 Cadogan and Shane, ii. 168 ; App. 
 
 No. 26 
 
 Cage V. Acton 461,462 
 
 Calcraft v. Roebuck, 10. 297. 300 ; 
 
 ii. 2. 20. 28 
 Calland and Rose 295. 340 
 
 Callaway v. Ward 171 
 
 Calthorp V. Hayton ii. 84 
 
 Calton V. Bragg ii. 17 
 
 Calverlev v. Williams, 324 ; ii. 25 
 Calvert and Doe 350 
 
 Camden (Ear!) and Garrick 62 
 Camelford (Ld.) and Smith, ii. 135 
 Camfield v. Gilbert, 234. 238, 239 
 Cammeyer and Rucker, 104, 105 
 Campbell v. Campbell 529 
 
 Campbell v. Lewis ii. 77 
 
 and Lewis ib. 
 
 V. Walker, ii. 109. 115. 122 
 
 Campion v. Cotton ii. 148 
 
 Cane v. Lord Allen ii. 113. 121 
 
 V. Baldwin 45. 342 
 
 Cann v. Cann 343. 349. 564 
 
 Cannel v. Buckle 213 
 
 Canning and Barnes ii. 281 
 
 Cant V. Lord Beauclerk ii 301 
 Capel V. Butler ii. 331 
 
 Caj^el V. Girdler 176. 622, 523 
 Capp V. Topham 20, 21 
 
 Capper and Mortimer, 260. 280. 
 282. 284 
 
 V. Spottiswoode ii. 61 
 
 Card V. Jaflfray 90 
 
 Carding and Lord Verney, ii. 269 
 Careless and Stewart 113 
 
 Carey and Bennet College, 61. 
 
 208 ; ii. 24 
 Carleton v. Leighton ii. 264
 
 XXIV 
 
 INDEX TO CASES. 
 
 Page 
 
 Carhlon and Loivlher, ii. 260. 274. 
 
 280 
 Carlisle (Earl of) and Lechmere 
 ii. 161, 152, 153 
 
 Carpenter v. Blandford 
 
 V. Creswell 
 
 and Sorrell, i 
 
 Carr, ex parle 
 
 and Hill 
 
 .— — and Wedderburne 
 
 423; 
 
 ii. 281 
 245 
 283, 284 
 5 
 194 
 104 
 102 
 
 Carrill and Lowther 
 
 Carroll and Savage, 117. 129, 130. 
 
 180. 189; ii. 149 
 
 Carter and Brown 
 
 V. Home 
 
 and Maryon 
 
 V. Pritchard 
 
 V. Warne 
 
 ii. 170 
 ii. 130 
 
 422 
 
 ii. 304 
 
 52 
 
 208 
 ii. 269 
 
 363 
 ii. 172 
 
 115 
 
 428 
 
 Carter and Williams 
 
 Cartwright and Dean 
 
 Caruthers v. Caruthers 
 
 Carwarden and Parry 
 
 Cary v. Cary 
 
 Caryll and Hayes 
 
 Casamajor v. Strode, 65. 344, 345 
 
 Casberd v. Ward, 512. n. ; ii. 76 
 
 Cason V. Round ii. 307 
 
 andSiadd ii. 301 
 
 Cass V. Rudele 277 
 
 V. Waterhouse, 92. 97. 323 
 
 Cast Plate Glass Company 
 
 and the Attorney General 154 
 Castle and Howard 
 Caswell, Ex parte 
 Catesby and Mountford 
 Cater and Bowers 
 Cator and Jackson 
 
 V. Earl of Pembroke 
 
 Causton v. Macklew 
 Cavan (Lady) v. Pulteney 
 Cave and Payne 
 Cavendish v. Worsley 
 Cazenove and Hall 
 Chaigneau and Baillie 
 Chalie and Garthshore 
 
 Chamberlain and Cox 
 Chamberlain and Fell. 
 
 24. 26 
 
 ii. 375 
 
 ii. 82 
 
 116 
 
 168 
 
 565 
 
 548 
 
 ii. 88 
 
 ^3 
 
 193 
 
 420, 421 
 
 66 
 
 362; 
 
 ii. 151 
 
 ii. 25 
 
 114 135; 
 
 ii. 139 
 
 Chamberlaine v. Chamberlaine 
 
 153 
 
 Page 
 
 and Phillips 158, n. 
 
 Chambers v. GrifHths 292, 293 
 
 V. Waters ii. Ill 
 
 Champernown and Townsend, 447. 
 
 509 
 Champion v. Plummer 90 
 
 v. Rigby ii. 112. 126 
 
 Champneys and St. John, ii. 335 
 Chandelor v. Lopus 3 
 
 Chandler v. Beard 348 
 
 Chandless and Baikie 552 
 
 Chandos (Duchess of) and 
 
 Brydges 176, n. 
 
 (Duke of) V. Talbot 38 
 
 Chaplain v. Southgate ii. 84 
 
 Chaplin and Tatem ii. 78 
 
 Chapman v. Bond 528 
 
 V. Brown 158, n. 
 
 V. Emery ii. 161. 170 
 
 V. Gibson ii. 261 
 
 V. Tanner ii. 57 
 
 Charles v. Andrews 257. 362 ; 
 
 ii. 57 
 Charles and Foster 6 
 
 Charlton v. Low 518. 528 ; ii. 
 
 259 
 Charlewood v. the Duke of 
 
 Bedford 77, n. 94. 104 
 
 Charlvvood v. Morgan 329, n. 
 
 Charnells and Siddon ii. 260 
 
 Chater v. Beckett 84 
 
 Cheek v. Jeffries ii. 329 
 
 and Watkins ii. 39 
 
 Cheney's (Lord) case 152 
 
 Cherry and Ferrars ii. 170. 274. 
 
 293 
 Chesney's case 464 
 
 Chesterlield v. Janssen 265 
 
 Chetham v. Grugeon 67 
 
 Chetwynd and Sutton ii. 176 
 
 Child v. Lord Abingdon ii. 8. 20 
 
 and Baker 197 
 
 v. Godolphin 111 
 
 and Lord Irnham 159. 166, 
 
 167. 210 
 Chillingworth v. Chilling- 
 worth 59 
 Chirton's (Walter de) case, ii. 137 
 Chitty and Williams 362, 363 
 Chivall v. Nicholls ii. 222 
 Cholmeley and Cockerell, ii. 126
 
 INDEX TO CASES. 
 
 XXV 
 
 Page 
 
 Cholmondley (Marquis) v. Lord 
 
 396. 506 
 
 ii. 266 
 
 522 
 
 CHntori 
 Cholmondleii v. Orford 
 and Pitt 
 
 Cholmondeley (Earl of) 
 
 Lord AValpoIe 
 Chomley's case 
 Christian and henhouse 
 
 Chriitie and 
 
 V, Attorney-General 
 
 and Bexwell 
 
 and 
 
 152 
 ii. 158 
 ii. 129 
 
 3U9 
 
 21,22 
 
 23 
 
 Christ's Coll. V. Widdrington 
 
 Hospital V Budgin 
 
 (Church V. Legeyt 
 Churchill, ex jmrte 
 
 V. Grove 542 
 
 Churchman v. Harvey 
 
 V. Ireland 
 
 Chute and Selby 
 Clanmorris and Blosse 
 Claphani and Wilson 
 Clare v. Ear! of Bedford 
 Clare v. Clare 
 Clark and Armiger 
 
 V. Clark 
 
 and Fullagar 
 
 V. Hackvvell 
 
 301 
 147 
 233 
 110 
 285 
 
 ii. 377 
 
 182 
 
 ii. 84 
 
 340 
 
 ii. 10 
 
 ii. 263 
 
 ii. 355, n. 
 
 216 
 
 ii. 300 
 223 
 131 
 
 118. 
 
 and Kirk, or Heisier ii. 170 
 
 and Jervoise 
 V. Uplon 
 
 Clarke and Dew 
 
 V. Elliott 
 
 V. Faux 
 
 and Gibson 
 
 and Goodwin 
 
 V. Grant 
 
 v. Royle 
 
 and Smith 
 
 v. Terrel 
 
 and Willett 
 
 V. Wilson 
 
 Clarkson and Morris 
 Clavell and East India Comp. 
 
 ii. 170 
 Clay v. Clay 394, 395 
 
 Clay v. Shayye 358 ; A pp. No. 15 
 Clayton and Fife 33. 134. 230 
 Clayton v. Lord JVilton ii. 164 
 Clayworth and Cooke ii. 300 
 
 Clements and Hamilton 261 
 
 Clerk V. Clerk ii. 108 
 
 VOL. I. D 
 
 • 55 
 64 
 192 
 226, 227 
 369 
 223. 226, 227 
 250 
 138 
 ii. 58. 66 
 26, 27 
 87 
 243. 430 
 226 
 348 
 
 Paga 
 Clerk v. Nettleship ii. 167 
 
 V. Wright 90. 115 
 
 and Young 6. 205. 259, 260 
 
 Clermont (Lord) v. Tashurgh 205 
 Clifford v. Laughton 323 
 
 Clifton v. Walmsley 157 
 
 Clinan v. Cooke 90, 92. 104. 124. 
 127. 223 
 Clinton and Trefusis 70 ; ii. 8 
 
 (Lord) and Marquis 
 
 Cholmondley 396. 506 
 
 Ciissel and Leakins 3 
 
 Clobery and Ker 260. 295. 297 
 Clough and Metcalf 47 
 
 Clowes and Higginson, 32, 33. 38. 
 • 91. 109. 134. 136. 140. 205, 
 
 230. 318. 
 Clynn v. Littler 184 
 
 Coare v. Creed 15, 16 
 
 Cock V. Richards 169 
 
 Cocker and Fludyer ii. 5, 6. 25 
 Cockerell v. Chomeley ii. 126 
 
 Cockes v. Sherman ii. 274 
 
 Codd and Verlander 93 
 
 Coffin V. Cooper 434 
 
 Coghill V. Holmes ii. 377 
 
 Coke v. Wilkcocks ii. 308 
 
 Culclough V. Sterum 58 
 
 Coldcot (Dr.) V. Serjt. Hide, 
 
 or Hill 161 ; ii. 102 
 
 Cole and Cordage 124 
 
 V. Gibbons 264, 265 
 
 and Pordage 49 
 
 V.White 115,116 
 
 Colegrave v. Dias Santos 38 
 
 Coleman and Binstead, 116.133 
 
 V. Upcot 85. 87, 88 
 
 Coles and For shall, 552; ii. 194, 
 
 ' 195, 196; App. No. 20 
 
 Coles and Hunt 501. 543 
 
 v. Trecothick, 87. 101. 104. 
 
 106. 109. 123. 206. 259, 263. 
 
 282. 285; ii. 110. 117. 
 
 Collet V. De Gols, 511 ; ii. 286. 
 
 287, 288, 289. 
 
 CoUett and Lloyd, 424. 429. 435, 
 
 443 ; ii. 20. 
 
 v. Thomson 
 
 v. Woollaston 
 
 and Shore 
 
 Collier v. Jenkins 
 and I^ong 
 
 240 
 
 259 
 
 532 
 
 189. 299 
 
 355 ; ii. 27
 
 Collier and Vansittart 
 
 — and Wheeler 
 
 CoUinge's case 
 Collins V. Archer 
 
 and Benyon 
 
 and Bliss 
 
 and Brealey 
 
 CoUyer v. "Willock 
 Colinan v. Sarrell 
 
 INDEX TO CASES. 
 
 Pas;c 
 
 69 
 
 28. 86 
 
 ii. 26 
 
 ii. 31C 
 
 ii. 34 
 
 344 
 
 310 
 
 ii. 16 
 
 ii. 378 
 
 ii. 168 
 
 369 
 
 161; 166 
 
 ; ii. 2. 4. 
 
 65 
 
 Coltman and Dolin 
 Colton V. Wilson 
 Colvile V. Parker ii. 
 
 Comer V. Walkleij, \87,n 
 
 "l3. 20. 45, 46 
 Commissioners of Appeals in 
 
 Prize Causes and Willis, iir 14 
 Compton and Lady Bellasis, 
 
 ii. 
 
 and Ford 
 
 Compton V. Richards 
 — — and Smith 
 Corayn and O'Gorman 
 Conolly and Baxter 
 
 — V. Parsons 
 
 Conran v. Barry 
 
 99. 
 
 138 
 
 87 
 
 37 
 
 104 
 
 ii. 170 
 
 368 
 
 24, 25. 27 
 
 68, n. 
 
 Constable and Walker 106. 109. 
 
 151. 238 
 
 Constantine and Topham ii. 57 
 
 Conway and Broughton ii. 95 
 
 V. Shrimpton 257 
 
 Cook V. Booth 156 
 
 and Bracebridge 463 
 
 and Sir John Burlace ii. 260 
 
 vid. Cooth V. Jackson. 
 
 — : — and Fountain 464 
 
 and Thomas 79 
 
 Cooke V. Clayworth iL 300 
 
 ■ and Clinan,90. 92. 104. 124, 
 
 125. 127. 323 
 
 V. Cooke 
 
 and Doe 
 
 V. Fowndes 
 
 and Hockin 
 
 and Milligan 
 
 and Mussell 
 
 "v. Soltan 
 
 V. Tombs, 
 
 176. 
 
 522 
 506 
 ii. 92 
 325 
 303 
 94 
 350 
 84. 93. 95. 97. 
 115 
 Cookson and Wbelpdale, ii. 119. 
 
 124 
 Coombs and Roper 333. 432 
 
 Cooper and Aldrich ii. 70 
 
 Cooper and Buxlon 
 Cooper and Coffin 
 
 V. Denne 
 
 and Lover'dge 
 
 and Martinez 
 
 V Smith 
 
 V. Tynman 
 
 Coofe V. Mammon 
 Cooth V. Jackson 
 
 Cope and Dukin 
 and Glover 
 
 Pase 
 
 4. 205. 2.'i7 
 
 434 
 
 340 
 
 ii. 263 
 
 468 
 
 90. 94. 101 
 
 ii. 265 
 
 ii. 279 
 
 96. 113 115. 
 
 275 
 
 • ii. 13 
 
 ii. 81 
 
 62 
 
 396 
 
 .369 
 
 62, n. 
 
 Copeland v. Stephens 
 Copner and Price 
 Coppard and Harrison 
 Coppin V. Coppin ISO; 
 
 67. 69,70,71,72,73 
 
 v. Fernyhough 339 ; ii. 293 
 
 Corbett V. Brown 
 Corbet v. Corbet 
 
 and Ewer 538 ; ii. 52 
 
 and Kenn 
 
 Cordage v. Cole 
 C order v. Drakeford 
 and Mason 299. 
 
 v. Morgan 
 
 Cordley and Beckett 
 Cordwell v. Mackrill 
 Cormick v. Trapaud 
 Cornelius and Simmons 
 Cornish v. Rowley 
 Cornwall v. Williams 
 Cornwallis's case 
 Corp and Dreu'e 
 Corpe and Lampon 
 Coryton and Heliier 
 Cory v. Gertekcn 
 Coslake v. Till 
 Coster v. Turnor 
 Costigan v. Hastier 
 Cotbatch and M'Cullock 
 Cotter v. Layer 
 Cotterell v. Hampson 
 
 V. Button 
 
 Cottington v. Fletcher 112 ; ii, 136 
 Cottle and Withy 202. 216. 223 
 Cotton and Campion ii. 148 
 
 Cotton V. Everall ii. 32, n. 
 
 Cotton V. King ii. 161 
 
 v. Lee 85 
 
 Couch V. Stratton 362 
 
 Court and Oliver ii. 110 
 
 6 
 
 363 
 
 54. 66 
 
 355 
 
 124 
 
 84 
 
 304. 339 
 
 358 
 
 ii. 296 
 
 ii. 297 
 
 ii. 178 
 
 118. 131 
 
 422. 430 
 
 208 
 
 ii. 276 
 
 298. 353 
 
 ii. 62, n. 
 
 158, n. 
 
 ii. 263 
 
 429 
 
 434 
 
 204. 210 
 
 70 
 
 183, 184 
 
 ii. 32 
 
 389. 391
 
 INDEX TO CASES. 
 
 XXVll 
 
 Page 
 
 Courtowii (Lord) and Under- 
 wood ii. 222. 274 
 (JoKssmaker v. Sewell 356 ; App. 
 
 No. 14 
 Coutts and Wallwyn ii. 159 
 
 Coventry and Swanborough 41 
 Coveriij V. Burrell 
 Coward v. Odingsale 
 Cowell V. Simpson 
 Covvper and Stiles 
 Cox V. Bate man 
 
 V. Chamberlain 
 
 V. Paxton 
 
 and Sheldon, ii. 222 
 
 and Swan 
 
 340 
 
 Craddock and Wilhams 
 Cracrofl and Rex 
 Craddock and Lake 
 Crafts V. Tritton 
 Cragg V. Holme 
 Craig V. Hopkins 
 Crane v Drake 
 Crawford and Gordon 
 Crayford v. Crayford 
 Creasy and Haycraft, 5 ; 
 i 
 Creed and Coare 
 Crespigny v. Wittenoom 
 Creswell v. Byron 
 
 and Carpenter 
 
 and Watts 
 
 ('rethorii and Harding 
 Crewe v. Dicken 
 
 Cripps V. Jee 
 V. Reade 
 
 Crisp and Cruso 
 
 V. Heath 
 
 V. Pratt 
 
 Crispe and Lloyd 
 
 Crockford v. Alexander, 
 
 and Knight 
 
 V. Winter 
 
 Croft V. Slee 
 
 Croftonv. Ormsby ii. 
 
 Croker and Legge 
 
 Crompton and Sale 
 
 Crop V. Norton 208. 
 
 Crosbie and Bnike 
 Crosby v. Arkwright 
 
 V. Middleton 
 
 V. Percy 
 
 288 
 
 428 
 
 ii. 60 
 
 131 
 
 ii. 149 
 
 ii. 25 
 
 ii. 149 
 
 278 
 
 246 
 
 548 
 
 73 
 
 129 
 
 251 
 
 203 
 
 558, n. 
 
 ii. 54 
 
 263 
 
 ii. 102 
 
 n. 
 
 Pago 
 
 Crosby v. Wadsworth 75. 79. 82, 
 
 83,84 
 
 ii. 179 
 
 85. 87. 
 
 147 
 
 ii. 82, 83 
 
 ii. 168 
 
 ii. 120 
 
 181 
 
 Cross V. Faustenditch 
 Crossby and Buckhouse 
 
 263, n. 
 15, 16 
 ii. 327 
 362 
 245 
 ii. 262 
 ii. 296 
 ; ii. 50 
 ii. 138 
 554 
 20 
 542 
 ii. 146 
 339 
 173. 217 
 88. 100. 248 
 ii. 17 
 ii. 375 
 170. 269. 291 
 307 
 ii. 194 
 ii. 133. 
 137. 139 
 68 
 327 
 168 
 241 
 
 Crosse V. Young 
 Croucher and Jones 
 Crowe V. Ballard 
 
 and Barnes 
 
 Crowder v. Austin 28 
 
 Crowther and Tawney 93 
 
 Croyston v. Banes 110 
 
 Cruso V. Crisp 20 
 
 Crutchley v. Jernirigham 226 
 
 Cubbidge v. Boatright ii. 53 
 
 CufFv. Penn 133 
 
 Culpepper v. Aston ii. 32. 48. 281 
 Cundall and Bell ii. 259 
 
 Cunningham v. Williams 60 
 
 Cunynghame and Rose 90. 95. 
 189. 176. 179 
 Curling v. Shuttleworth, 243 ; 
 
 ii. 14 
 
 Ctirrer or Comer v. Walkleij 187, 
 
 n. ; ii. 2. 4. 13. 20. 45, 46. 65 
 
 Curteis and Pincke, 246. 295. 427. 
 
 434 
 Curtis V. Marquis of Bucking- 
 
 ham 
 
 - and Potts 
 
 - V. Price 
 
 210 
 
 11. 
 
 and Williamson 
 
 Curwyn v. Milner 
 Curzon and Aston 
 Custance and Holmes 
 
 Cuthhtrl V. Baker 291 
 Cutler V. Simons 
 
 D. 
 
 Dakin v. Cope 
 1 Dalby v. Pullen 
 
 and Rex 
 
 Dale, ex parte 
 
 V. Lister 
 
 V. Sollett 
 
 Dalton V. Hammond 
 Daly and Kennedy 58. 
 539 
 
 V. Osborne 
 
 Damon and White 
 
 217 
 268 
 58 
 ii. 33 
 264 
 ii. 307 
 ii. 263, n. 
 297 
 ; ii. 42. 45 
 228 
 
 ii. 13 
 
 298. 434 
 
 ii. 139 
 
 ii. 75 
 
 302 
 
 234 
 
 460 
 
 617, n. 
 
 ; ii. 273 
 
 223 
 
 259, 260
 
 ixvm 
 
 INUKX TO CASF,i5. 
 
 Dannah and Wright 
 Danvers and Doe 
 
 Page 
 
 Dana and Matthews 223 
 
 Dancer and Ebrand ii. 147 
 
 Dane and Emanuel 170 
 
 Daniel v. Adams 1 04. 1 97. 200. 206 
 Daniels v. Davison 173. 231, 299 ; 
 ii. 291. 293 
 107 
 397 
 
 and Hunt ii. 84 
 
 D'Aicy V. I'dake 517, n. 
 
 Dare v. Tucker 38. 629 
 
 Darkin v. Marye 61 
 
 Darloy v. Singleton 262 
 
 Danis's Case ^ 174 
 
 Darwin v. Lincoln ii. 329 
 
 Dashwood and Musgravc 196, 197 
 Daubuzand and Pye ii. 103 
 
 Davenport and Vale 67 
 
 Davids V. Adams 122, n. 
 
 Davidson v. Gardner ii. 113 
 
 Davie v. Beardsham 171. 174. 177 
 
 v. Sacheverell ii. S3 
 
 Davies v. Austen ii. 264, 265 
 
 and Denton ii. 150 
 
 v. Jones 200 
 
 and Owen 87. 200 ; ii. 2. 9 
 
 v. Penton 215 
 
 and Selkrig ii. 130 
 
 and Shirley 308 
 
 Davis V. Hone 203, 204 
 
 Davies v. Earl of Strathmore 
 
 ii. 196 
 
 and Swift ii. 141, 142 
 
 Davis v. Thomas 155 
 
 Davis and Thomas 165. 1G3. 256 
 Davis and Whitworth 171 
 
 and Vv'ilks 276 
 
 Davison and Daniels 173. 231. 
 299 ; ii. 291. 293 
 Davis's case 252 
 
 Davy V. Barber ii. 2. 8. 9 
 
 Davys v. Howard ii, 152 
 
 Dauh and Berkeley 229 
 
 Dawes V. King 3 
 
 Dawson and Addison ii. 108 
 
 Daivson and Burke ii. 175 
 
 Dawson v. Ellis 99, n. 
 
 and Frame 117 
 
 V. Massey ii. 116. 300 
 
 Day V. Arundel ii. 304, n. 306 
 
 and Attorney-General 65. 
 
 109. 1S9' 
 
 Day and Blennerhasset 
 
 and Brooks 
 
 V. Finn 
 
 v. Newman 
 
 Page 
 
 ii. 113 
 552 
 321 
 258 
 Deacon aiid Foster ii- 23 
 
 v. Smith ii. 151, 152, 153 
 
 Dean (Lord) and Kinnaird 3,4, n. 
 Dean and Leech ii. 171, 172 
 Dean and Hodgson ii 286 
 Deane v. Rastron 260 
 Dcardon v. Lord Byron 606 
 Deardon and Keene 360. 394. 487 
 Dearie v. Hall ii. 265 
 Dearmer and Smith 181 
 Debar and Taylor ii. 103 
 De Bernales v. Fuller ii. 17 
 V. Wood . ib. 
 
 Deem or Powell v. Howorth, 
 
 h. 65. 293 
 De Faria and Gowland 264, 265, 
 266, 267. 269, 270, 271 
 De Gols and Collett 511 ; ii. 286, 
 287, 288, 289 
 De Graves v. Smith .5 
 
 De Havilland v. Bowerbank ii. 17 
 Dehew and Sanders ii. 259 
 
 Delane v. Delane ii. 136 
 
 Deligne and Saunders ii. 260 
 
 De la Cour and Haigh 170 
 
 Denew v. Deverall 38. 49 
 
 Denison and King ii. 143 
 
 Deniston and Lord Forbes ii. 222 
 Denn v. Cartwright ii. 269 
 
 v. Kemeys 466 
 
 and Ireson ii. 221 
 
 Denne and Cooper 340 
 
 Denny and Hamilton ii. 132 
 
 Denton v. Davies ii. 150 
 
 Denton v. Slewart or Seward 116. 
 
 231 
 Derby Canal Company v. Wil- 
 
 niot ii. 197 
 
 Derival and Doivt-c 521 
 
 Derrison and Shippey 93. 102 
 
 Deschamps and Alley 424, 426. 
 
 428 
 D'Esterre and Wheeler 116 
 
 Deverall and Denew 38. 49 
 
 and Remington 260 
 
 Deverell v. Lord^Bolton 331. 335 
 Devercll and Lord Ossukton 333 
 Devon (Duke of) and Barker ii. S3
 
 INDEX TO CASES. 
 
 XXIX 
 
 Page 
 
 Devonshire {Duke of) and 
 
 JWayquis of JYonnanbij 99. 
 131. 212. 214 
 Devereux and Winter 128 
 
 Dew V. Clarke 192 
 
 Dewdney, ex' parte 395 
 
 Devves v. Brandt 261. 265 
 
 38 
 
 30 
 
 358 
 
 36 ; 
 
 ii. 50 
 
 354 
 
 ii. 221 
 
 122 
 
 122, n. 
 
 Dias Santos and Colegrave 
 
 Dias and City of London 
 
 Dibbin v. Baker 
 
 Dick V. Donald 
 
 Dicken and Crewe 340 ; 
 
 and Eytoij 
 
 Dickens and Morecock 
 Dickinson v. Adams 
 Dickinson v. Baskerville 
 Dickensorr'v. Dickenson 346 : ii. 35 
 Dickenson v. Heron 438 ; ii. 6. 20. 
 
 28 
 Dickenson v. Lockyer 
 V. Shaw 
 
 Dickson and Atchison 
 Digs V. Boys 
 Dighton and Lane 
 Dike V. Ricks 
 Dillon V. Byrn 
 
 V. Leman 
 
 -. and O'Falion 
 
 and Powell, 
 
 Ditchfield and Ulrich 
 Divett and Powell 
 Dixon and Adderly 
 
 V. Astley 
 
 and Stammers 
 
 Dobell V. Stevens 
 Dobson V. Leadbeater 
 Dodd and Beable 
 
 and Hine 
 
 Doe V. Abel 
 
 V. Allsop 
 
 V. xVndrews 
 
 V. Archer 
 
 V. Benson 
 
 V. Bland 
 
 V. Boulton 
 
 V. Breach 
 
 V. Brightwen 
 
 V. Burt 
 
 V. Calvert 
 
 V. Cooke 
 
 V. Danvers 
 
 ■ V. Greenhill 
 
 92 
 
 u. 52 
 
 ii. 141 
 
 278, n. 
 
 ii. 281 
 
 ii. 149 
 
 ii. 48 
 
 ii. 203, n. 
 
 390 
 
 ii. 243 
 
 ; ii. 291 
 
 153 
 
 136 
 
 202 
 
 226, 227 
 
 158 
 
 4 
 
 ii. 305 
 
 ii. 376 
 
 222. 280 
 
 255 
 
 ii. 223 
 
 ii. 299 
 
 ii. 272 
 
 135 
 
 154 
 
 249 
 
 250 
 
 350 
 
 152 
 
 350 
 
 506 
 
 397 
 
 544 
 
 Page 
 
 Doe V. Hilder 492. 608 
 
 V. Hogg ii. 208 
 
 V. Hopkins ii. 160 
 
 V. Jackson 249 
 
 V. James ii. 157 
 
 V. Jesson 390, 391 
 
 V. Jones 389 
 
 V. Lawder 249 
 
 V. Lea 135 
 
 V. Luff kin ii. 270. 292 
 
 V. Lynes 298, n. 
 
 V. Manning ii. 160 
 
 V. Martin ii. 179 
 
 V. Martyr ii. 160. 169 
 
 V. Micklem 158, n. 
 
 V. Morris ii. 156 
 
 V. Oxenden 152 
 
 , V. Pegge 469. 483 
 
 i V. Perkins 10 
 
 I V. Philips 493, n. ; ii. 327 
 
 V. Plowman 509 
 
 V. Pott 177, n. 
 
 V. Putland 502 
 
 V. Routledge, ii. 157. 170 
 
 V. Sayer 249 
 
 V. Scott 470. 488 
 
 V. Smith 250 
 
 V. Stace 492 
 
 V. Staple 470. 483. 485 
 
 V. Sybourn 470. 485 
 
 V. Waller 249 
 
 V. Wrott 469 
 
 D'Ohti' and S. S. Company 160 
 Dolin V. Coltnian ii. 168 
 
 Dolland and Lyster, 541 ; ii. 129 
 Dolman (Sir Thomas) and 
 
 Smith 434 
 
 Doloret v. Rothschild 202. 429 
 Dolphin and Eyre ii. 222. 308 
 
 Dolton V. Hewen ii, 39 
 
 Donald and East India Com- 
 pany 213 ; ii. 300, 301 
 
 and Dick 
 
 Donegal and Bernal 
 Donovan and Pitt 
 
 V. Fricker 
 
 Doran v. Wiltshire 
 Dormer v. Parkhurst 
 Dorrien and Kerrison 
 Doubble and Poivell 
 Douglas V. Ward, 
 V. Whitrong 
 
 368 
 
 264 
 
 ii. 278 
 
 ii. 19 
 
 ii. 35 
 
 397 
 
 ii. 161 
 
 42. 296 
 
 161. 172 
 
 187
 
 INUKX TO CAS lis. 
 
 Douglas V. Yallop 
 Downes and Bartlett 
 
 V. Glazcbrook 
 
 and Wood 
 
 II 
 121 
 
 Pauf 
 552 
 602 
 112 
 126 
 521 
 316 
 
 50 
 11. 64 
 
 84 
 
 Dowse V. Derivall 
 Dovvson and Pickering 
 Doyley v. Countess of Powis, 
 Drake and Crane 
 Drakeford and Corder 
 Drapers Company v. Yaidly, ii. 
 
 293 
 Drayson v. Pocock ii- 51 
 
 Drewe v. Corp 
 Drewe v. Hanson 
 
 and Payne 
 
 Driver and Gaby 
 Drummond and Boydell 
 
 Dyer v. Pullency 
 Dyke (uul Jones, 
 Dyke v. Sylvester 
 
 E. 
 
 Page 
 
 173 
 
 45. 235. 238 
 
 351 
 
 Earl V. Baxter 338 
 
 Earl V. jRo^-cri' 164, 165, n. 
 
 Earle and Hungerford ii. 179 
 
 and Senhouse, ii. 171. 297 
 
 and Wing 326 
 
 Early v. Garrett 313. 560 
 
 298. 353 East India Company v. Clavell, 
 
 293, 294 
 
 ii. 199 
 
 45 ; ii. 14 
 
 94 
 
 54 
 
 and M'Ecod ii 
 
 Drury and Drury, or Earl of 
 
 Bucks 362, 363, 364 
 
 V. Man 
 
 Du Cane, ex parte ii 
 
 and Howard ii 
 
 Duckentield v. Whichcott 
 
 460 
 
 112 
 
 119 
 
 3 
 
 Dudley (Lord) and Attorney- 
 
 ii 
 
 General 
 V. Dudley 
 
 V. Foliott 
 
 Duft'el V. Wilson 
 Dukes and Beaumont 
 
 115 
 
 517 
 
 ii. 82 
 
 287 
 
 37 
 
 109, 110 
 
 126. 269 
 
 ii. 32 
 
 22G 
 
 108 
 
 Dumbell, ex parte, ii. 
 Dunbar v. Tredennick, ii 
 Dunch V. Kent 
 Duncombe and Younge 
 Dunn and Maclean 
 Dunsany (Lord; and Latouche 
 
 ii. 220, n. 
 Dunsford and Eyre 5 
 
 Durand and Hart 153 
 
 Durdin and Gaskell ii. 282 
 
 Durell and Noble 325 
 
 Durham (Bishop of) and 
 
 Morrice 68 
 
 Dursley (Lord) v. Fitzhard- 
 
 inge ii. 268 
 
 Dutch V. Warren 234 
 
 Dutton and Cotterell 389. 391 
 
 Dyer v. Dyer, ii. 13-5. 139. 141. 
 
 144 
 Dyer v. Hargrave, 290. 310. 430 ; 
 
 ii. 10 
 
 Dyer and Price, 139, 146. 149, 
 
 150. 309 
 
 
 ii. 170 
 
 V Dnn'ilfl "^1 ^ ' ii 
 
 300,301 
 46 
 
 V. Hensley 
 
 Eaton V. Lyon 
 
 157 
 
 and York 
 
 ii. 127 
 
 Ebrand v. Dancer 
 
 ii. 147 
 
 Echliff V. Baldwin 
 
 217 
 
 Edden v. Read 
 
 234 
 
 Edelph and Pitt.s 
 
 ii. 274 
 
 Eden (Sir J.) v. the Earl 
 
 of 
 
 Bute 
 
 166 
 
 Edgar and Thring 
 
 ii. 307 
 
 Edin V. Battaly 
 
 ii. 266 
 
 Edmunds and Powell 
 
 32. 134 
 
 Edney and Jones, 31. 34 
 
 47. 134 
 
 Edridge and Bengough, ii. 357, n. 
 
 Edwards, ex parte 
 
 ii. 259 
 
 and Elliot, 243 ; 
 
 ii C6. 74 
 
 and Fournier 
 
 226 
 
 and Garstone 
 
 67 
 
 V. Harvey 
 
 ii. 24 
 
 \t l-T p'l thfr 
 
 268 
 < 47 
 
 V . XX CU lllCl 
 
 ——'•^-^ Y, j.iV^^J^Jlliii 
 
 and HoUis, 74, n. 77, n. 214 
 
 or Whiteing and lloliis, 114 
 
 V. JM'Leay 665 
 
 and Moore 113 
 
 and Perry ii. 84 
 
 and Williams 302. 445 
 
 Effingham (Lord) and Lord 
 
 Portsmouth 394 
 
 Egerton and Head ii. 304 
 
 V. Jones 219 
 
 — V. Matthews 85 
 
 Eggington V. Flavel 60 
 
 Egremont (Lord) v. Hamilton 395 
 Ekins and Bailey ii. 38 
 
 and Pippin 160 
 
 -i V. Tresham 3, 4 
 
 Elderton and Lausdown 60
 
 INDEX TO CASES. 
 
 XXXI 
 
 Pa;!e 
 
 Elderton and Spunier 47; ii. 16 
 Eldrklge v. Porter 223 
 
 Elever and Amcourt 245 
 
 Eliason and Parr ii. 169 
 
 Ellard v. Lord Llandaff, 203, 204. 
 
 210 
 Elliot V. Brown 
 
 V. Edwards 
 
 V. Elliot ii 
 
 V. Merryman, 
 
 Evitt and Adainson 
 Ewer V. Corbett, 533 ; ii. 
 
 and "White 
 
 Elliott and Clarke 
 
 and Robinson 
 
 Ellis and Brati 
 
 11 129 
 
 ii. 6G. 74 
 
 40. 142. 144. 
 
 ii. 32. 38, 39. 
 
 52. 56 
 
 226, 227 
 
 329 
 
 45. 235. 23S ; 
 
 App. No. 7 
 
 99, n. 
 
 ii. 355, n. 
 
 ii. 37S, 379 
 
 223 
 
 Ellis and Dawson 
 
 and Knight 
 
 Ellison V. Ellison 
 
 Elniherst and BIyth 
 
 Elmore v. Kingscote 90 
 
 Elton and Enrronghs ii. 130 
 
 Enianuel v. Dane 170 
 
 Emerson and Andrews 67 
 
 and Riddle ii. 132 
 
 Kniery and Chapman ii. 161. 170 
 Emery v. Grocock 350. 509 ; ii. 27 
 Emery v. n'ase 197. 199, 200. 
 261. 274 
 Emmerson v. Hetlis 53, S3. 94. 
 102. 104. 106, 107. 293 
 Emmott and Andrews ii. 375 
 
 -■ rhart and Gunnis 31. 33. 134 
 
 Errington v. Annesley 202 
 
 and Randall ii. 122. 124 ; 
 
 Esdaiie and 0:-:cnham ii 57 
 
 Esdaile v. Slephensun 219, 220. 
 
 291. 434 ; ii. 10 
 
 Estcourt V. Estcourt 362 
 
 Paas 
 
 "8 
 52. 54. 
 56 
 39.5 
 Exeter (Bishop ot') and Gnlly, 
 
 ii. 160. 163 
 
 (Bishop of) and Hill, 
 
 ii. 157. 160. 168 
 „ (Fishon of) and Wyvill, 280 
 Exmoulh {Loid) and Oxenden 
 
 ii. 11. 27 
 I Eyles and Hooper 
 
 and Hanger 
 
 I Eyre and Boone 
 
 I V. Dolphin 
 
 I V. Dunsford 
 
 [ and Holland 
 
 V. Iveson 
 
 Evans V. Bicknell '468. 
 ii 
 
 V. Brown 
 
 V. Griffith 
 
 V. Luellyn 
 
 and Peacock 
 
 89. 520 ; 
 262. 300 
 262 
 264 
 262 
 265, 266 
 84 
 ii. 86 
 Evelyn v. Evelyn 188 
 
 V. Templar ii. 159, 160, 161. 
 
 167 
 Everall and Cotton ii. 32, n. 
 
 Everard and Re,\ 324, n. 
 
 Everest and Wickham 226 
 
 li. 137 
 
 257. 289 
 
 422 
 
 ii. 222 
 
 5 
 
 89 
 
 110 
 
 V. Lord Middleton, 91, n. 
 
 V. Popham 91. 125. 211. 
 
 429 
 Eyton V. Dicken 354 
 
 F. 
 
 Fagg's case, or Fagg and 
 
 Sherly ii. 260 
 
 Fain v. Avers ii. 103 
 
 V. BVown - 204 
 
 Fairbain and Adams 151 
 
 Fairchild v. Newland ii. 243 
 
 Fairclaim v. Xewland ii. 242 
 
 Faircloth v. Gurney ii. 336 
 
 Fairfax(Lord) and Eottomley 519 ; 
 
 ii. 350 
 
 Fairfield v. Birch ii. 165. App. 
 
 No. 25 
 
 Falkland (Lady) and Strode 155 
 
 V. Roberts 
 
 V. \ aushan 
 
 Fallon, ex parte 
 Fane v. Spencer 
 Farebrother v. Ansley 
 
 and Bethune 
 
 V. Prattent 
 
 V. Simmons 
 
 and Yates 
 
 327 
 
 338 
 
 22 
 
 234 
 
 48 
 107 
 
 48- 
 
 Farguson v. 3Iaitland 263 
 
 Farley and Farquhar, ii. 14. 16. 18 
 Farlow v. ^Veildon 67 
 
 Farmer v. Rogers 165, n. 
 
 V. Robinson 105 
 
 and Shelling 155 
 
 Farmer v. Wardell 264
 
 INDEX TO CASES. 
 
 Fafquhar v. Farley, 
 and M'Queen 
 
 Fair V. Newman 
 Fanell and Whitmell 
 Farrer v. Billing 
 V. Fairer 
 
 Page 
 
 ii. 14. 16. 18 
 
 294. 353 ; 
 
 ii. 20. 26. 295 
 
 ii. 54 
 
 214 
 
 342 
 
 162 
 
 233. 287 
 
 166 
 
 V. Nightingale 
 
 Farrington and Bittersbee, ii 
 Fauconberge and Fitzgerald ii. 279 
 Faulkner and Morse ii. 263, 264 
 Fausset and Whitfield 
 Faustenditch and Cross 
 Faux and Clark 
 Favvcett and Longchamps 
 Fawell V. Heelis 
 Featherstonhaugh v 
 
 ii. 265 
 ii 179 
 369 
 152 
 u. 62. 75 
 Fenwick 
 211 ; ii. 130 
 ii. 76 
 73 
 114. 135; 
 ii. 139 
 Fellowes v. (Lord) Gwydyr 
 
 Factor v. Philpott 
 
 ex parle 
 
 Fell V. Chamberlain 
 
 211, 
 212 
 
 Fenhoullett and Scott 523 
 
 Fenner v. Taylor ii. 168 
 
 Fenton ami Broione, 3. 42. 48. 290. 
 299. 309 ; ii. 20 
 Fenwick and Featherstonhaugh, 
 
 211 ; ii. 130 
 Feoffees of Herriott's Hospital 
 
 V. Gibson 
 Fergus v. Gore 
 Ferguson v. Tadman 
 Fermor's case 
 Fermor and Ferrers 
 Feme v. Bullock 
 Fernyhough and Coppin 
 
 n. 
 
 Ferrars v. Cherry 
 Ferrers v. Fermor 
 
 and Manning 
 
 (Lord) and Upton 
 
 Field and Yea 
 Fielder v 
 
 V. Studley 
 
 Fielding and Lewes 
 
 and Philips 
 
 Fife V. Clayton 
 Fifield and Twigg 
 Fildes V. Hooker 
 
 Higginson 
 
 37. 92 
 68 
 ii. 223 
 ii. 273 
 464 
 118. 131 
 339 ; 
 ii. 293 
 170. 274 
 464 
 ii. 262 
 66. 69 
 531 
 ii. 28 
 ii. 102 
 ' ii. 308 
 240. 246 
 33. 134. 230 
 62 ; ii. 8 
 219. 333. 345, 
 347 
 
 Pagfi 
 Finch V. Finch ii. 141, 142 
 
 V. Newnham ii. 282 
 
 V. Earl of Winchelsea 639 
 
 Fingal {Lord) v. Ross 121. 123 
 Finiay and Flood 139 
 
 Finn and Day 321 
 
 Fish and Sloper 340; ii. 196 
 
 Fishe V. Rogers 450 
 
 Fisher and Aubrey 38 
 
 Fitzgerald and Barton ii. 93. 97 
 
 V. Fauconberge ii. 279 
 
 V. Foster 27 
 
 and Spurrier 114 
 
 Fitzhardinge and Lord Dursley, 
 
 ii. 268 
 Flavel and Eggington 60 
 
 Fleetwood v. Green 224 
 
 Fleetwood's (Sir Gerrard) case 
 
 ii. 199 
 Fletcher and Coltington 112; 
 
 ii. 136 
 
 and Hurd ii. 81, 86 
 
 and Long 289 
 
 and Orlebar 171 ; ii. 197 
 
 and Sibson ii. 261 
 
 V. Sidley ii. 147 
 
 V. Toilet 194 
 
 Fleaureau v. Thornhill 208. 235. 
 238 ; ii. 16 
 Flexny and Kellick ii. 109 
 
 Flight V. BoUand 201. 208 
 
 FHnt V. Brandon 202 
 
 Flood V. Finiay 139 
 
 and Fryer ii. 146 
 
 Florence and Tanner ii. 293 
 
 Floyd V. Aldridge 175 
 
 V. Bethill 325, 326 
 
 V. Buckland 116 
 
 Floyer v. Sherard 262 
 
 Fludyer v. Cocker ii. 6, 6. 25 
 
 Fohaine's (Lady) case • 171 
 
 Foley and Moore 157 
 
 V. Percival 172. 187. n. 
 
 and Whitconib 224 
 
 162 
 
 Foljambe and Ogilvie 33. 89, 90. 
 95. 103 
 
 and White 335, 336. 367 ; 
 
 ii. 24 
 Foliott and Dudley ii. 82 
 
 Foorde and Hayes ii. 376 
 
 V. W^ilson ii. 96 
 
 Foot V. Sal way 135
 
 [NDEX TO CASES. 
 
 xxxm 
 
 Page 
 
 Forbes (Lord) v. Deniston ii. 222 
 Ford V. Compton 87 
 
 and Fordyce 299. 427 
 
 Fordyce v. Ford ib. 
 
 Foreman and Wilson ii. 149 
 
 Forester and fValdron ii. 8. 21 
 Forrester v. Lord Leigh ii. 131 
 ForshaU v. Coles 552 ; ii. 194, 195, 
 196 ; App. No. 20 
 Foster and Attorney-General 157 
 
 and Fizgerald 27 
 
 V. Foster ii. 154 
 
 V. Hale 93. 128. 132 
 
 Fort and Wilde 239. 341. 422. 512, 
 
 n. ; ii. 10 
 
 Forth and Harrison ii. 274 
 
 V. Duke of Norfolk 540. 546 ; 
 
 ii. 203 
 Foster and Blake 397 
 
 V. Charles 5 
 
 V. Deacon ii. 23 
 
 and Jerdon 192 
 
 and Norman ii. 98 
 
 V. Mapes ii. 83 
 
 Foster and Savage ii. 262 
 
 Fothergill v. Fothergill ii. 377 
 
 Foulkes and Owen (,6 Ves. jun.) 
 
 ii. 110 
 
 Foulks V. Owen (9 Ves jun. 348). 
 
 70 
 
 Fountain v. Cook 464 
 
 — — V. Young ii. 299 
 
 Fournier v. Edwards 226 
 
 Founier and Bishop of W^in- 
 chester 
 
 Fowle V. Freeman 
 
 Fowle V. Welsh 
 
 Fowler and Pechell 
 
 V. Willoughby 
 
 Fowndes and Cooke 
 
 Fox V. Birch 
 
 V. Mackreth 
 
 V. Wright 
 
 Foxcraft v. Lister 
 
 JFrame v. Dawson 
 
 Francis and Burgh 
 
 V. W^igzell 
 
 Frank v. Marshall 
 
 Franklin v. Lord 
 
 Freebody v. Perry 
 Freeland and Sayle 
 Freeman v. Barnes 
 Freeman and Fotvle 85. 
 Freeman and Parsons (Revo 
 
 cation) 
 V. Taylor 
 
 Page 
 227 
 194 
 
 404 
 87. 98 
 
 Freemn and Palsey 
 Freer and Thorp 
 Freme v. Wright 
 Frere v. Moore i 
 
 Frewen v. Relfe 
 Fricker v. Donovan 
 Frith V. Parker 
 Frost and Broivn 
 Fry V. Porter 
 
 and Wilkins 
 
 Fryer v. Flood 
 Fullagar v. Clark 
 FuUarton and Watts 
 Fuller V. Abrahams 
 Fuller and De Bernales 
 Furnell and Zagury 
 Fursman and Radcliffe 
 
 G. 
 
 n. 
 
 Gaby V. Driver 
 Gainsford v. Griffith 
 Gaisford and Acland 
 
 176 
 
 541, n. 
 
 5 
 
 ii. 23. 25 
 
 368 
 
 . 75. 265 
 
 197 
 
 ii. 19 
 
 429 
 
 217 
 
 277 
 
 39 
 
 146 
 
 223 
 
 176 
 
 30 
 
 ii. 17 
 
 278 
 
 ii. 299, n. 
 
 45 
 
 n. 
 
 u. 298 
 
 85. 87. 98 
 
 ii. 83 
 
 250 
 
 174 
 
 ii. 92 
 
 227 
 
 ii. 109. 124 
 
 272 
 
 116 
 
 117 
 
 479 ; ii. 264 
 
 ii. 107 
 
 ii 
 
 Brownlow 
 
 11. 14 
 ii. 98 
 51 ; ii. 10. 
 20 
 Gaitskill and Parnther 47 
 
 Gale and Lang 419 
 
 Gallimore and Moss 252 
 
 Galloway {Lord) and Sieadman 
 
 440 
 Gallon V. Hancock 
 Gambel and Hilliard 
 Gamson and Barber ii. 
 
 176 
 267 
 330, 331, 
 332 
 157 
 ii. 107 
 ii. 281 
 ii. 113 
 151 
 
 and Murless ii 
 
 Frederick and Morsehead 
 
 App. No. 
 
 VOL. I. E 
 
 303 
 172. 
 343 
 
 142 
 
 72; 
 
 10 
 
 Gape V. Handley 
 Garbrand v. Allen 
 Gardiner and Goldson 
 Gardner and Davidson 
 Gardner v. Lord Townsend ii 
 Gardom, ex parte 85 
 
 Garland and Smith ii. 175, 176, 
 
 177 
 Garnons v. Swift 242 
 
 and Ward 532 
 
 Garrard v. Girling 139 
 
 Garraway and Mfvnell ii. 274 
 
 Garrett and Early' 313. 560
 
 XXXIV 
 
 INDEX TO CASES. 
 
 Pa g 
 
 62 
 
 67 
 
 ii. 305 
 
 ii. 281 
 
 ii. 151 
 
 262 
 
 66 
 
 ii. 203, n. 
 
 ii. 136. 137 
 
 Garrick v. Earl Camden 
 Garstone v. Edwards 
 Garth and Hughes 
 
 V. Ward 
 
 Garthshore v. Chalie 362 
 Gartside v. Isherwood 
 
 and Tipping 
 
 Gascoign v. Stut 
 
 V. Thwing 
 
 Gaskarth v. Lord Lowther 88. 190 ; 
 
 ii. 21 
 Gaskill v.Durdin 
 Geddes and Havelock 
 Gee and Todd ii. 10 ; 
 Gee and Tood 
 Gell V. Vermedum 
 
 V. Watson 
 
 Gennor v. JVfacmahon 
 George and Abrahm 
 
 and Howell 
 
 V. Milbanke 
 
 Gerteken and Cory 
 Gervoyes's case 
 Gery and Milnes 
 Gibbin and Prideux 
 Gibbons v. Baddall, 
 — — and Cole 
 
 Gibbs and Abbot 
 and Brown 
 
 ii. 282 
 245. 420 
 App.No. 21 
 231. 297 
 191 
 ii. 18 
 168 
 188 
 210 
 265 
 ii. 263 
 359 
 276 
 176 
 61, 62. 74 
 264, 265 
 ii. 32 
 
 n. 
 199. 204. 
 169. 
 
 11 
 
 617 
 Gibson and Chapman ii. 261 
 
 V. Clarke 223. 226, 227 
 
 and Feoffees of Heriott's 
 
 Hospital 37. 92 
 
 V. Jeyes ii. 121 
 
 and Lake ii. 128 
 
 V. Lord Montford 174 
 
 V. Paterson 424 
 
 V. Smith 324 
 
 Giddings and Hitchcock, 254. 560 
 Giffard v. Hort 58 ; ii. 273 
 
 Gifford V. Nugent ii. 53, 54 
 
 Gilbert and Camfield 234. 238, 239 
 Gill V. Walson 228. 322 
 
 Girdler and Capel 176. 522, 523 
 Girling v. Garrard 139 
 
 Glaister v. Hewer ii. 146, 147 
 
 Glazier and Goodright 186 
 
 Glazebrook and Downes, ii. 112 
 — — V. Woodrow 245 
 
 Glover v. Cope ii. 81 
 
 Godolphin and Child 111 
 
 Godolphin (Lord) and Duke 
 
 of Marlborough ii. 81 
 
 Goldson V. Gardiner 
 Goleborn v. Alcock 
 Gomeserra and Barrett 
 
 Gompeitz V. 
 
 Gooch and Owen 
 Gooch's case 
 Goodale and Middlemore 
 Goodinge v. Goodinge 
 Goodison v. Nunn 
 Goodrick v. Brown 
 Goodright v. Glazier 
 
 — V. Hodges 
 
 V. Jones 
 
 — V. Moses 
 
 V. Sales 
 
 V. Swymmer 
 
 Goodtitle v. Jones 
 
 V. Meredith 
 
 V. Morgan 
 
 V. Pope 
 
 V. Sayville 
 
 Goodwin v. Clarke 
 
 and Hooper 
 
 V. Lithbody 
 
 V. Lister 
 
 and Pimm 
 
 Goom V. Aflalo 
 Gordon v. Ball 
 V. Crawford 
 
 Page 
 
 ii. 281 
 
 ii. 259 
 
 116. 259 
 
 223 
 
 49 
 
 ii. 159 
 
 ii. 77 
 
 155 
 
 245 
 
 379 
 
 186 
 
 ii. 139 
 
 397 
 
 ii. 161 
 
 521 
 
 360 
 
 394. 470. 486 
 
 181 
 
 487. 560 
 
 252 
 
 484. 
 
 187, n. 265 
 260 
 70 
 171. 432 
 192 
 397 
 102 
 223 
 263 
 
 (Lord Wni.) v. Marquis 
 
 of Hertford 139 
 
 V. Trevelyan 91 
 
 Gore and Fergus 68 
 
 V. Stacpole 58 
 
 V. Wigglesworth ii. 269 
 
 Gorge's (Lady) case, ii. 141. 146. 
 
 148 
 Goring V. Nash ii. 164. 378 
 
 Gorman V. Salisbury, 146. 148, 149 
 Gosden and Ramsbottom 139 
 
 Gosnold and Sheppard 157 
 
 Goudge and Lane 158, n. 
 
 Gough and Shine ii. 259. 267 
 
 V. Stedman ii. 303 
 
 265, 266 
 
 263 
 
 ii. 191 
 
 Gould and Nieols 
 
 V. Okenden 
 
 V. Shoyer 
 
 Gourlay v. l)uke of Somerset 275 
 
 Gower and Attorney-General 301; 
 
 ii. 278. 306 
 
 and Ryder 69 
 
 Gowland v. De Faria 264, 265, 
 266, 267. 269, 270, 271
 
 INDEX TO CASES. 
 
 XXXV 
 
 Gowlaud atid Mayor 
 Graham v, Graham 
 V. Sime 
 
 Page 
 
 1S4 
 
 ii. 260 
 450 
 
 Granger and Lord Townshend 37 
 
 V. Worms 35 
 
 Grant and Clarke 138 
 
 and Halsey 289. 346 
 
 and Hamilton 208 
 
 V. Munt • 309 
 
 and Pendleton 154 
 
 and Routledge 43. 89 
 
 V. Shills ii. 64 
 
 Gray v. Gutteridge 47. 53 
 
 and Hatton 85 
 
 Grayme v. Grayme 195 
 
 Graysbrook and Hopkins 235. 237 
 Greaves v. Ashlin 40. 133 
 
 Green and Fleetwood 224 
 
 V. Jackson 552 
 
 V. Lowes ii. 31, n. 
 
 V. Smith 171. 189 
 
 V. Wood 428 
 
 Greene v. Lambert 521 
 
 Greenhill v. Doe 544 
 
 V. Greenhill 174 
 
 Greenstead's (East) case ii. 182, 
 
 183. 277 
 Greenaway and Sevier 255 
 
 — ' — V. Adams 231 
 
 Greenwood and Nonaille 356 
 
 Gregory v. Gregory ii, 126 
 
 v. Mighell 116. 275 
 
 and Rex 64 
 
 Gregson and Blackburn ii. 62. 66. 
 
 74 
 
 V. Riddle. 441. 443 
 
 Greswold v. Marsham 542 ; ii. 285 
 Grey (Lord) v. Lady Grey ii. 141. 
 
 144 
 Griffin and Burnaby 194 ; ii. 25 
 
 V. Stanhope ii. 166. 179 
 
 V. Taylor 198 
 
 Griffith and Attorney-General 
 
 ii. 125 
 
 and Evans 264 
 
 and Gainsford ii. 98 
 
 V. Heaton ii. 9 
 
 and Lloyd 63. 536 
 
 and Twisleton 264. 266 
 
 Griffith and Wood 173. 257. 302. 
 
 662 
 
 Page 
 229 
 292, 293 
 262 
 350 609 ; 
 ii. 27 
 ii. 158 
 ii. 285 
 ii. lOS 
 ii. 109 
 ii. 119 
 ii. 135 
 246 ; ii. 8 
 Grueber and Knatchbull 203. 294 
 Grugeon and Chetcham 67 
 
 Guest V. Homfray 289. 426. 437 
 
 and Lewin 293. 448 ; ii. 26 
 
 Gully V. Exeter (Bishop of) ii. 
 160. 168 
 
 Griffith and Wynne 
 Griffiths and Chambers 
 
 and Spratley 
 
 Crocock and Emery 
 
 Groobham and Jones 
 Grove and Churchill 642 
 
 and Michaux 
 
 and Watt 
 
 Grover v. Hugell 
 Groves v. Groves 
 Growsock v. Smith 
 
 Gunnis v. Erhart 
 Gunter v. Halsey 
 Guppy and Stevens 
 Gurney and Faircloth 
 Gutch and Boyman 
 Gutteridge and Gray 
 and Simpson 
 
 31 
 
 . 33. 134 
 
 98. 115 
 
 230. 370 
 
 ii. 336 
 
 244 
 
 47. 53 
 
 359 
 
 32. 45 
 
 157 
 
 332 
 
 u 
 
 Guyon and Smith 
 Guy's Hospital and Baynham 
 Gwillim v. Stone 231 
 
 Gwydyr (Lord) and Fellowes 
 
 211,212 
 Gwynne, ex parte 51 ; ii. 57, n. 
 
 v. Heaton 262. 264, 265, 
 
 266 
 Gyde, ex parte 41 
 
 Gyles and Moyse ii. 127 
 
 H. 
 
 Hackwell and Clark 118. 131 
 Haddenham (Inhabitants of) 
 
 v. Rex ii. 106 
 
 Haddon's case 198 
 
 Hagedon v. Laing 422 
 
 Haigh v. De la Cour 170 
 
 Halcot v. Markant ii. 149 
 Hale and Forster 93. 128; ii. 132 
 
 Hale's case 195; ii. 378 
 
 Hall, ex parte ii. 162 
 
 v. Adkinson ii. 259 
 
 V. Cazenove 420, 421 
 
 and Dearie ii. 265
 
 201. 
 
 XXXVl 
 
 Hall V. Hardy 
 V. Jenkinson 
 
 V. and Keech 
 
 V. Noyes 
 
 Hall r. Smith 9 
 
 Hall V. Warren 
 
 and Wheate 
 
 Hallett and Pennill 
 
 V. Middleton 
 
 Halsey and Auslen 
 
 V. Grant 
 
 and Gunter 
 
 Hamil V. Stokes 
 Hamilton and Balgney 
 
 V. Clements 
 
 Denny 
 
 INDEX TO CASES. 
 
 Page 
 
 193, 199. 213 
 
 226 
 
 332 ; ii. 155 
 
 ii. 109. 126 
 
 430: ii. 293 
 
 210. 274 
 
 340 
 
 152, 153 
 
 ii. 103 
 
 ii. 70 
 
 289. 346 
 
 98. 115 
 
 ii. 265 
 
 ii. 149 
 
 261 
 
 ii. 132 
 
 Hamilton and Lord Egremont 395 
 
 V. Grant 
 
 and Hobhouse 
 
 Hamilton v. Royse 
 
 V. Worley 
 
 Hammond and Dalton 
 
 V. Hill 
 
 V. Toulmin 
 
 Hampson and Cotterell 
 
 Hancock and Gallon 
 
 and Spurrier 279. 367 
 
 Handley and Gape 
 Hanger v. Eyles 
 Hankin and Hicks 
 Hanning v. Ferrers 
 
 and Trent 
 
 Hanson, ex parte 
 
 and Drewe 
 
 and Macdonald 
 
 • V. Roberdeau 
 
 and Scott 
 
 Hapell and Belworth 
 Harcourt v. Knowel 
 Hardcastle and Sparrow 
 Harding v. Crethon 
 
 V. Nelthorpe 
 
 V. Suffolk 
 
 Hardingham v. Nichools 
 Hardman and Omerod 
 
 Hare and Haynes 
 V. Shearwood 
 
 208 
 
 ii. 208 
 
 280. 294 
 
 188 
 
 460 
 
 ii. 87 
 
 ii. 104 
 
 ii. 32 
 
 177 
 
 428, 
 
 429 
 
 157 
 
 257. 289 
 
 46 
 
 ii. 262 
 
 340 
 
 ii. 74 
 
 293, 294 
 
 367 
 
 49. 51 
 
 4. 308 
 
 2L7 
 
 ii. 260 
 
 178, n. 
 
 ii. 296 
 
 564, 665 
 
 152 
 
 ii. 306 
 
 142. 433; 
 
 ii. 33, n. 42 
 
 Hardwicke v. Mynd ii. 33. 51 
 
 Hardwicke (Lord) v. Vernon, 
 
 ii. 120. 122 
 Hardy and Hall 198, 199. 213 
 V. Reeves ii. 297. 308 
 
 Page 
 
 159. 166 
 159. 166 
 
 Harford v. Furrier 278 
 
 Hargrave v. Le Breton ii. 278 
 
 ■ and Dyer 290. 310. 430 ; 
 
 ii. 10 
 
 and Sedgwick 199 
 
 Harmood v. Oglander 394, 395 
 Harwell and Bennett 58 
 
 Harnett v. Yielding 202. 204, 
 
 205. 209. 306 
 Harper and Barker tJ2 
 
 Harrington v. Hoggart ii. 14. 16 
 
 V. Price 532 ; ii. 76 
 
 Harrington and Robinson ii. 193 
 
 V. Secretan 224 
 
 Harrington v. Wheeler 428 
 
 Harris and Barnwell 288, 289. 
 
 329. 343. 350. 353 
 
 V. Ingledew ii. 307, 308 
 
 and Pope 204 
 
 V. Pugh 643 
 
 Harrison, ex parte ii. 109 
 
 V. Coppard 369 
 
 v.. Forth ii. 274 
 
 V. Harrison 173 
 
 V. Hollins 397 
 
 V. Southcote ii. 69. 61. 244 
 V. Wright 216 
 
 Harrup and Buckmaster, 106. 109. 
 
 126. 189 
 
 Hart V. Durand 153 
 
 and Wilson 104 
 
 Hartley V. Peahall 341 
 
 V. Smith ib. 
 
 V. Wilkinson 111 
 
 V. 0' Flaherty 648 
 
 Harvey v. Ashley ii. 295 
 
 Harvey and Belch 396 ; App. 
 
 No. 16 
 
 and Churchman ii. 377 
 
 Harvey and Edwards ii. 24 
 v. Harvey 166 
 
 (Sir Thomas) v. Montague 
 
 ii. 283 
 V. Parker 194 
 
 V. Phillips 632 
 
 and Turner 6 
 
 V. Young 3 
 
 Harvy v. Woodhouse ii. 259 
 
 Harwood v. Wallis 160 
 
 Hasker v. Sutton 365
 
 INDEX TO CASES. 
 
 Hastier and C'ostigan 
 Hatchet and Watkins 
 Hatt and Brotherton 
 Hatton V. Gray 
 
 V. Jones 
 
 Havelock v. Geddes 
 Haw and Levy 
 Hawkins v. Holmes 
 
 V. Kemp 
 
 V. Obeen 
 
 and Polyblank 
 
 Hawkins and Taylor 
 Hawley v. Staughton 
 Haycraft v. Creasy, 5 ; 
 Hayes V. BickerstafF 
 
 V. Caryll 
 
 V. Foorde 
 
 V. Kingdome 
 
 Hayne and Mitchell 
 Haynes and Birch 
 
 V. Hare 
 
 Hays V. Bailey 289 
 
 Hayton and Calthorp 
 Hayward v. Lomax 
 
 and Stevenson 
 
 Head v. Egerton 
 Headen v. Kosher 
 Head ley v. Roadhead 
 Heald and Bracebridge 
 Heaps and Bowes 
 Heard v. Wad ham 
 Hearle v. Botelers 
 
 Hearne v. James 
 
 V. Tenant 
 
 V. Tomlin 1 1 
 
 and WooUam 
 
 Heath and Crisp 
 
 V. Heath 
 
 and Schneider 
 
 Heathcote v. Paignon 
 Heather and Edwards 
 Heaton and Griffith 
 
 and Gwynne 262. 264, 265, 
 
 266 
 
 Hedges and O'Herlihy 91. 124, 
 
 126. 211 
 
 Heelis and Emerson 63. 83. 94. 
 
 102. 104. 106, 107. 293 
 
 and Fawell ii. 62. 75 
 
 Page 
 204. 210 
 
 ii. 304, n. 
 
 ii. 278 
 
 85 
 
 ii. 157 
 
 245. 420 
 
 233 
 
 102. 125 
 
 247 ; ii. 51 
 
 192 
 
 460 
 
 ii. 56 
 
 198, n. 
 
 ; ii. 263, n. 
 
 ii. 83 
 
 428 
 
 ii. 376 
 
 ii. 128 
 
 48 
 
 223 
 
 159. 166 
 
 345. 455. 
 
 506 ; ii. 25 
 
 ii. 84 
 
 666 
 
 ii. 169 
 
 ii. 304 
 
 267. 269 
 
 ii. 70 
 
 74, n. 
 
 266 
 
 245, 246 
 
 ii. 61, 62 
 
 74 
 
 87 
 
 423 
 
 249. 287 
 
 136, 137 
 
 52 
 
 339 
 
 34. 316 
 
 262 
 
 258 
 
 ii. 9 
 
 Page 
 Hegan v. Johnson 249 
 
 Heisier and Clarke ii. 170 
 
 Hellier and Coryton 158, n. 
 
 Hemmington and Standley 247 
 Henderson v. Wild ii. 62, n. 
 
 Hendon (Lord of the Manor 
 
 of) and Rex 460 
 
 and Waller 104 
 
 Henkle v. the R. E. A. Office, 
 
 158, 167 
 Hensley and East India Com- 
 pany 46 
 Herbert, ex parte ii. 288 
 Herbert's (Sir Wm.) case 548 
 Hercy v. Ballard 394 
 Heriott's Hospital (Feoffees of) 
 
 v. Gibson 37. 92 
 
 Heme v. Meers 263 
 
 and Sloman ii. 299 
 
 Heron and Dickenson 438 ; ii. 6. 
 
 20 28 
 Heron v. Heron ii. 149 
 
 and Norton 53 
 
 Hertford (Marquis of) v. Boore 
 
 437 
 
 (Marquis of) and Lord 
 
 William Gordon 139 
 
 Hervey v. Hervey ii. 377 
 
 Hesse v. Stevenson 162 ; ii. 88. 98 
 
 ii. 39 
 
 146, 147 
 
 181 
 
 182 
 
 192. 370; 
 
 ii. 20. 57 
 
 287 
 
 547 
 
 274 
 
 , 266, 267 
 
 Hewen and Dolton 
 Hewer and Glaister ii 
 Heygate and Hulme 
 Heylyn v. Heylyn 
 Hibhard and Smith 172. 
 
 Hibbert v. Shee 
 Hickford v. Machin 
 Hickman and Hopcraft 
 and Peterson ii 
 
 and Earl of Plymouth ii 149 
 
 Hicks V. Hankin 46 
 
 V. Morant 8 
 
 (Sir Harry) v. Phillips 257. 
 
 298 
 Hide (Serj.) and Dr. Coldcot 161 ; 
 
 ii. 102 
 
 Hiern v. Mill ii. 291 
 
 Higginson v. Clowes 32, 33. 38. 
 
 91. 109. 134. 136. 140. 205. 
 
 230. 318 
 
 and Fielder ii. 28
 
 INDEX TO CASES. 
 
 Page 
 
 Iliggins V. the York Buildings 
 
 Company 643 
 
 Hilbeit and Wallinger 223. 295 
 Hilder and Doe 492. 608 
 
 Hiles and Jenkins 218. 430 
 
 Hill V. Adams 517 
 
 and Barker 172 
 
 V. Buckley 206, 207. 319, 
 
 320. 323 
 
 V. Carr 194 
 
 and Coldcott 161 ; ii. 102 
 
 V. Bishop of Exeter ii. 167. 
 
 160. 168 
 
 and Hammond ii. 87 
 
 Hill and Holland 348 
 
 and Lewes ii- 162 
 
 and Nott 264.274 
 
 V. Simpson ii. 63 
 
 V. Worsley ii- 281 
 
 Hillary v. Waller 338. 350. 470 ; 
 
 ii. 374 
 Hilliard v. Gambel 267 
 
 Hilton V. Barrow 230 
 
 Hincksman v. Smith 267 
 
 Hinde v. Whitehouse 90. 92, 93, 
 94. 105. 109 
 Hine v. Dodd ii. 222. 280 
 
 Hinton v. Hinton 196 
 
 Hitchens v. I;ander 561 
 
 Hithcock V. Sedgwick 511 ; ii. 259. 
 286. 289, 290 
 
 V. Giddings 264. 660 
 
 Hitchcox and Underwood 269 
 
 Hoare v. Parker ii. 304 
 
 Hobbs and Walton ii. 301 
 
 Hobhouse v. Hamilton ii. 208 
 
 and Spratt ii. 188. 190 
 
 Hobbs V. Norton ii. 262 
 
 Hobson and Rist 87 
 
 Hoby V. Roebuck 81 
 
 Hockin V. Cooke 325 
 
 Hodder v. Ruffin 71 
 
 Hodding and Edwards 47 
 
 Hodges and Goodright, or 
 
 Langtielde ii. 139 
 
 Hodges V. Horsfall 162 
 
 V. Jones 66 
 
 V. Templar ii. 195 
 
 Hodgson V. Been ii. 286 
 
 Hodgson and Le Bret 102 
 
 Hodson and Kendray 53 
 
 Hogg and Doe ii. 208 
 
 Page 
 
 Hogg V. Snaith 133 
 
 Hoggart and Harrington ii. 14. 16 
 
 V. Scott 436 
 
 and Waring 34. 36 
 
 Holbech and Bree 654. 664 
 
 Holdstvorth V. Holdsivortli ii. 70 
 
 Holford and Barker 
 
 V. Lade 
 
 Holland v. Eyre 
 
 V. Hill 
 
 and Rex 
 
 Hollier and Rex 
 Hollings and Matthews 
 Hollins and Harrison 
 Hollis V. Edwards 
 
 60 
 470 
 
 89 
 348 
 ii. 106 
 516 
 564 
 397 
 
 74, n. 77, n. 
 214 
 
 V. Whiting or Edwards 114 
 
 Holman, ex parte 360. 609 
 
 Holme and Cragg 203 
 
 Holmes v. Ailsbie 632 
 
 V. Blogg ii. 107 
 
 V. Coghill ii. 377 
 
 V. Custance ii. 263, n. 297 
 
 and Hawkins 102. 126 
 
 and Poultney 81 
 
 Holt V. Holt 625 
 
 Hoi wood V. Bailey ii. 27 
 
 Homfray and Guest 289. 426. 437 
 Hone and Davis 203, 204 
 
 Honeycomb v. Waldron ii. 211 
 Hooker and Tildes 219. 333. 345. 
 
 347 
 Hooper, ex parte 
 
 V. Eyles 
 
 Hooper v. Goodwin 
 V. Ramsbottoni 
 
 Hopcraft v. Hickman 
 Hope V. Atkins 
 V. Booth 
 
 Hopkins and Bond 
 
 and Craig 
 
 and Doe 
 
 V. Graysbrook 
 
 123 
 
 ii. 137 
 
 70 
 
 ii. 76 
 
 274 
 
 133 
 
 216 
 
 397 
 
 568, n. 
 
 ii. 160 
 
 236. 237 
 
 Hopkynsand Howard 6. 205. 216 
 Hopson V. Trevor 
 Hopton and Jennings 
 Horde and Taylor 
 Horford v. Wilson 
 Home and Barrington 
 and Moyl 
 
 Horn and Carter 
 v. Horn 
 
 33. 
 
 215 
 223 
 393 
 54 
 198 
 119 
 130 
 327
 
 INDEX TO CASES. 
 
 Page 
 
 Horn and Jelliff ii. 185 
 
 Horndon (Inhabitants of) and 
 
 Rex 79 
 
 Horner and Cadman 202. 261 
 
 and Mayor of Hull ii. 374 
 
 Horniblow v. Shirley 289. 346 
 Horsfall and Hodges 152 
 
 and Waller 242 
 
 Hort and Giffard 58 ; ii. 273 
 
 Horton and Milner ii. 99, 100 
 
 and Nannock ii. 375 
 
 Horwood and Underbill 262 
 
 Hosier v. Read 141 
 
 Hoskins and Trenchard ii. 101 
 Hovenden v. Lord Annesley, 
 394, 395 
 Houghton, ex parte ii 
 
 V. Rushley ii 
 
 How and Nicholls 
 
 V. Stiles 
 
 V. Weldon 
 
 Howard and Bell 
 
 V. Braithwaite 
 
 Howard v. Castle 
 
 and Davys 
 
 V Ducano 
 
 V. Hopkins 6. 
 
 and Wright 
 
 Howe V. Howe 
 
 Howell V. George 199. 
 
 V. Richards 
 
 Howes V. Brushlield 
 
 Rex 
 Hunt V. Bourne 
 
 V. Coles 
 
 V. Danvers 
 
 397 
 ii. 135 
 ii. 198 
 
 618 
 
 464 
 
 ii. 260 
 
 148. 428 
 
 104 
 24. 26 
 
 152 
 
 II. 
 
 ii. 
 
 205. 
 
 ii. 
 
 i04. 
 
 119 
 216 
 429 
 135 
 210 
 ii. 95. 97 
 ii. 88 
 
 XXXIX 
 
 Page 
 
 Hungerford (Sir Edwardj and 
 
 Blake ii. 259 
 
 V. Earle ii. 179 
 
 and Mildmay 309 
 
 Market Company and 
 
 256 
 388 
 601. 543 
 ii. 84 
 287 
 ii. 8 
 233 
 554 
 40, 41 
 278, n. 
 188 
 ii. 263 
 ii. 81. 86 
 ii. 11 
 278 
 5 
 ii. 198 
 ii. 375 
 ii. 139 
 ii. 327 
 224 
 246 
 ii. 166 
 
 Howland v. Norris 289. 295 ; ii. 2 
 Hoivorth V. Poicell or Deem ii. 55. 
 
 293 
 Hoy and JYoel 208. 221 
 
 Huddleston v. Briscoe 88, 89 
 
 Hudson V. Bartram 444 
 
 and Wrightson ii. 220 
 
 Hugell and Grover ii. 119 
 
 Hughes, ex parte 64 ; ii. 110. 123, 
 
 124. 266 
 
 V. Bennett ii. 101 
 
 V. Garth ii. 305 
 
 V. Kearney ii. 13. 64 
 
 and Rane 99. 141 
 
 V. Robotham 463 
 
 Hulme V. Heygate 181 
 
 Hull (Mayor of) v. Horner ii. 374 
 Humble v. Bill ii. 33. 55 
 
 and Savage ii. 52 
 
 Hungate v. Hungate ii. 135 
 
 Himt and Mattock 
 Hunt and Macknell 
 
 V. Silk 
 
 Hunt and Simmons 
 Hunter, ex parte 
 
 V. Wilsons 
 
 Huntingford and Woods 
 Huntley and Jacques 
 Hurd and Fletcher 
 Husskisson and Monk 
 Hussey v. Revel 
 Hutchinson v. Bell 
 
 V. Johnson 
 
 and Moulton 
 
 and Rastel 
 
 Hutton V. Lewis 
 Hyde V. Wroughton 
 Hylliard, ex parte 
 Hylton and Ramsden 
 
 I. 
 
 114; 
 
 Ibbotson V. Rhodes 10; ii. 301 
 Iggulden V. May 157 
 Inchiquin (Earl of) and Coun- 
 tess of Shelburn 156, 159. 
 167, 168 
 Inge V. Lippingwell 146 
 Ingledew and Harris ii. 307, 308 
 Innes v. Breaksbear ii. 257 
 luskip and Lord Braybroke 351 ; 
 ii. 51. 262 
 Ireland and Churchman 
 Ireson v. Denn 
 V. Pearman 
 
 Irnham (Lord) v. Child 
 
 Irons V. Kidwell 
 Iseham v. Morrice 
 Isherwood and Gartside 
 Ithel V. Potter 
 
 V. Beane 
 
 Iveson and Eyre 
 
 182 
 ii. 221 
 
 652 
 
 159. 166, 
 
 167. 210 
 
 ii. 223 
 
 454 
 
 262 
 
 102 
 
 ii. 53 
 
 110
 
 xl 
 
 INDEX TO CASES. 
 
 Page 
 
 ii. 269 
 
 168 
 
 96. 113. 115. 
 
 275 
 
 249 
 
 652 
 
 Lever, 260.281, 282. 285 
 
 Petire 250 
 
 and Rich 143. 145. 167 
 
 V. Rowe (2 Sim. & Stu. 472.) 
 
 ii. 308 
 V. Rowe (4 Russ. 514.) 
 
 Jackson's case 
 Jackson v. Cator 
 and Cooth, 
 
 and Doe 
 
 V. Green 
 
 V. 
 
 Jenkinson and Hall 
 
 V. Pepys 
 
 V. Watts 
 
 Jenner v. Tracey 
 Jennings v. Hopton 
 
 V. Moore 
 
 V. Selleck 
 
 — and Smith 
 
 and Saunderson 
 
 93. 
 
 Jackson and Tenant 
 Jacob and Rowntree 
 
 and Worrall 
 
 Jaffray and Card 
 Jakeman and Shaw 
 
 n. 304 
 
 226 
 
 100, 101 
 
 ii. 32, n. 
 
 ii. 62, n. 
 
 ii. 168 
 
 90 
 
 164. 242 
 
 James, ex parte, ii. 116. 119. 123, Jeyes and Gibson 
 
 — and Doe 
 
 and liearne 
 
 V. James 
 
 V. Morgan 
 
 and Sir Samuel Romilly 342 
 
 124. 126. 266 
 ii. 157 
 
 87 
 
 ii. 330. 333 
 
 267 
 
 Page 
 
 226 
 
 32. 136 
 
 176. 178, n. 
 
 395 
 
 223 
 
 ii. 279 
 
 ii. 260 
 
 Jerdon v. Foster 191 
 
 Jernegan and Willis 262 
 
 Jerningham and Crutchley 226 
 Jerrard v. Saunders ii. 259, 260. 
 307. 309 
 Jerritt v. Weare ii. 84 
 
 Jervies and Peeles ii. 95 
 
 Jervis and Jason ii. 162 
 
 Jervoise v. Clarke 56 
 
 V. Duke of Northumber- 
 
 340 
 
 390, 391 
 
 218 
 
 233 
 
 359 
 
 530 
 
 ii. 121 
 
 68 
 
 249 
 
 ii. 198 
 
 land 
 Jesson and Doe 
 Jeudwine v. Alcock 
 
 V. Slade 
 
 Jevon and Noel 
 Jewell and Boughton 
 
 V. Shore 
 
 Janaway, ex parte 
 Janssen and Chesterfield 
 Jaques v. Huntley 
 Jarmain v. Egelstone 
 Jason V. Jervis 
 Jeanes v. Wilkins 
 Jebb V. Abbot 
 Jee and Cripps 
 Jeffery and Spratt 
 
 and Warde 427. 
 
 Jeffrey and Vawser 
 Jeffries and Cheek 
 
 and Montague 
 
 V. Small 
 
 Jelliff V. Horn 
 Jenkins and Collier 
 
 V. Hiles 
 
 Key mis 194 ; ii. 
 
 V. Reynolds 
 
 and Wood house 
 
 Johnes and Lloyd 
 Johnson and Hegan 
 and Hutchinson 
 
 n. 
 
 293 
 192 
 265 
 263 
 239 
 ii. 162 
 li. 203 
 ii. 34 
 ii. 138 
 335, 336 
 434. 443 
 183 
 ii. 329 
 186 
 ii. 128 
 ii. 186 
 189. 299 
 218. 430 
 162, 163. 
 179 
 86 
 ii. 89 
 
 V. Johnson 
 
 Johnson v. Kennet 
 Johnson v. Legard 
 Johnson v. Mason 
 Johnson v. Nott 
 
 and Proctor 
 
 and Sewell. 
 
 and Stansfield 
 
 V. Telford 
 
 JoUand v. Stainbridge 
 
 222 
 
 243. 294. 654 
 
 ii. 39 
 
 ii. 166. 175 
 
 451 
 
 ii. 103 
 
 ii. 92 
 
 71 
 
 106. 109 
 
 182 
 
 650 ; ii. 
 
 277. 301 
 
 Jolliffeand Mertins ii. 274. 293. 302 
 
 Jones V. Barkley 
 and Brown 
 
 — V. Bowden 
 
 — V. Croucher 
 
 246 
 
 ii. 161. 167 
 
 316 
 
 ii. 168 
 
 and Davies 200 
 
 and Doe 389 
 
 Jones V. Dyke 46. 235. 238 ; A pp. 
 
 No. 8 
 Jones V. Edney 31. 34. 47. 134 
 and Egerton 219 
 
 and Goodright 397 
 
 and Goodtitle 394, 470. 486 
 V. Groobham ii. 168
 
 INDEX TO CASES. 
 
 Xli 
 
 Page 
 
 Jones and Hatton ii. 157 
 
 and Hodges 66 
 
 and King ii. 78 
 
 V. Marsh ii. 166 
 
 and Matthews ii. 31, n. 297 
 
 and Moggiidge 246 
 
 Jones and JMorpheU 116 
 
 Jones V. Mudd ii. 10 
 
 V. Nanney 22. 45 
 
 V. Newman 152 
 
 V. Price 426 
 
 V. Reilly 216 
 
 V. Ryde 664 
 
 V. SherifFe 168 
 
 V. Stanley ii. 274 
 
 — — V. Thomas ii. 307 
 
 Jordan and Barnfather ii. 107 
 
 V. Savage 359. 362 
 
 V. Sawkins 145 
 
 Jordan and Shenton 215 
 
 Jourdon and A lam ii. 300 
 
 Joynes v. Statham 137 
 
 Jukes and Maidment 329, n. 
 
 Julian and Rayner 229 
 
 K. 
 
 Kain and Shepherd 316 
 Kancy and Watts, or Mutts ii. 52 
 
 Kaye and Tolson 390 
 
 Kaye v. Waghorn 146 
 
 Keane v. Roberts ii. 54 
 Kearney and Hughes ii. 13. 64 
 
 Keeble and Wildigos ii. 243 
 
 Keechv. Hall 332, ii. 155 
 
 V. Sandford ii. 114 
 
 Keene and Awbry 654 
 
 V. Stukely 257 
 
 Keen v. Deardon 350. 394. 487 
 
 Kellick V. Flexny ii. 109 
 
 Kelly V. Powlet 154 
 
 Kelsall V. Bennett ii. 306 
 
 Kelty and Broivn 227, 228 
 
 Kemeys and Denn 465 
 
 Kemp and Hawkins 247 ; ii. 51 
 
 and Robson ii. 299 
 
 Kempson and Jlspinall 508 
 
 Kemys v. Proctor 106 
 
 Kendall and Beckett 231. 265 
 
 Kendar v. Milward ii. 149 
 
 Kendray v. Hodgson 53 
 
 Kennedy and Burden 541 ; ii. 203 
 
 VOL. I. F 
 
 Page 
 
 Kennedy v. Daly 58. 617, n. 
 
 639 ; ii. 273 
 
 V. Lee 95 
 
 Kennet and Johnson ii. 39 
 
 Kenney v. Wrenham 216. 284 ; 
 
 ii. 9 
 Kenny v. Browne ii. 267. 295 
 Kenn v. Corbett 355 
 
 Kent and Bond ii. 60 
 
 and Dunch ii. 32 
 
 and W irdman 300 
 
 Kenworthy v. Schofield 93, 94. 
 
 106. 109 
 Kenyon (Lord) and Myddleton 
 
 ii. 168 
 
 V. Sutton 178 
 
 Ker V. Clobery 250. 295. 297 
 
 Kerrison v. Dorrien ii. 161 
 
 Kett and Back 182 
 
 Ketsey's case ii. 107 
 
 Keymis and Jenkins 194 ; ii. 162, 
 
 163. 179 
 Keys and Vernon 6 
 
 Kidby and Luther ^ 178 
 
 Kidd and Roake 340. 355 
 
 Kidder and Rider ii. 135. 139 
 
 Kidwell and Irons ii. 223 
 
 Kilvington and Barstow 164 
 
 Kine V. Balfe 116 
 
 King (The) See Rex. 
 
 V. 'Brewer ii. 168 
 
 and Cotton ii. 161 
 
 V. Denison ii. 143 
 
 and Dawes 3 
 
 V. Jones ii. 78 
 
 V. King 241 
 
 and Noble ii. 92 
 
 and Smith 394. 511 
 
 V. Turner 192. 349 
 
 V. Wightman 290 
 
 Kingdome v. Boakes ii. 300 
 
 V. Bridges ii. 147 
 
 and Hayes ii. 1 20 
 
 Kingdon v. Nottle ii. 78 
 
 Kingscote and Elmore 90 
 
 Kingsley v. Young 342 
 
 Kingston (Duchess of) and 
 
 Meadows ii. 307 
 Kinnaird v. I^ord Dean 3. 5, n. 
 Kinsman v. Kinsman ii. 281. 284 
 Kirkv. Clark ii. 170 
 V. Webb ii. 137.149
 
 xTii 
 
 INDEX TO CASES. 
 
 Page 
 
 Kirkham v. Smith 194 
 
 Kirtland v. Pounsett 11. 239. 249 
 Kirton and Wren 30. 62 ; ii. 115 
 Kitchin v. Bartch 157 
 
 Klinitz V. Surry 49 
 
 Knatchbull v. Grueber 203 
 
 Knight V. Crockford 88. 100. 248 
 
 Ellis 
 
 Knight and JMorris 
 Knipe and Aveling 
 Knollys v. Alcock 
 V. Shepherd 
 
 ii. 355, n. 
 
 246, n. 
 
 ii. 127 
 
 184, 185 
 
 186 
 
 Knott, ex parte 469. 520 ; ii. 259. 
 
 286, 287. 290 
 
 Knowel and Harcourt ii. 260 
 
 Knubley and Wilson ii. 1.04 
 
 Lacey, ex parte ii. 109. 122, 123 
 Lacon v. Mertins 115, 116. 121. 
 189 ; ii. 10. 57 
 Lacy and Sowarsby ii. 34 
 
 Lade v. Hol%d 470 
 
 V. Lade ii. 135 
 
 Laindon (Inhabitants of) and 
 
 Rex. 132 
 
 Laing and Hagedon 422 
 
 Lake V. Craddock ii. 129 
 
 Lake v. Gibson ii. 128 
 
 and Wood 79. 81 
 
 Lamas v. Baily ii. 132, 133 
 
 Lamb and Rex 516 
 
 Lambe and Williams ii. 309 
 
 Lambers v. Bainton ii. 113 
 
 Lambert and Greene 521 
 
 Lamplugh v. Lamplugh ii. 141, 
 142, 143 
 Lampon v. Corpe ii. 62, n. 
 
 Lander and Hitchins 561 
 
 Lane v. Dighton ii. 149 
 
 V. Goudge 158, n. 
 
 and Lowndes 295. 307 
 
 Lang V. Gale 419 
 
 Langfield v. Hodges ii. 139 
 
 Langford v. Pitt 179, 180. 430 
 
 and Prestage ii. 1 13. 1 17 
 
 Langham v. Nenny ii. 374 
 
 and Prodgers ii. 169, 170 
 
 Langlands and Blacket ii. 303 
 Langley v. Brown ii. 374 
 and Miles ii. 292 
 
 Langley v. Lord Oxford 
 
 Langstaffe and Scott 
 Langstroth v. Toulmin 
 Langton and North 
 
 V. Tracey 
 
 Lansdown v. Elderton 
 V. Lansdown 
 
 Latham, ex parte 
 Latouche v. Lord Dunsany 
 
 ii. 220, n 
 Laude and Lawson 
 Laughton and Clifford 
 Lautour, ex parte 
 Lavender v. Blackstone 
 
 Page 
 
 ii. 32, n. 
 
 56 
 
 211 
 
 46 
 
 521 
 
 ii. 169 
 
 60 
 
 254 
 
 260 
 
 and Spittle 
 V. Stanton 
 
 Lawder and Doe 
 Lawes v. Bennett 
 Lawrence and Whichcote 
 
 Lawrenson v. Butler 
 Lawson v. Laude 
 Layer and Cotter 
 Lea V. Barber 
 
 and Doe 
 
 and Osborn 
 
 Leadbeater and Dobson 
 Leak v. Morrice 
 Leakins v. Clissel 
 Leatt and Stabback 
 Le Bret and Hodgson 
 Le Breton and Hargrave 
 Lechmere v. Braser 
 Lechmere v. Earl of Carlisle 
 
 ii. 151, 162, 153 
 
 222 
 
 135 
 
 323 
 
 ii. 259 
 
 ii. 167. 
 
 179 
 
 53 
 
 ii. 34 
 
 249 
 
 187 
 
 ii. 109. 
 
 115. 126 
 
 207, n. 305 
 
 135 
 
 183, 184 
 
 84 
 
 135 
 
 ii. 263 
 
 ii. 305 
 
 114. 120 
 
 3 
 
 358 
 
 102 
 
 ii. 278 
 
 64. 434 
 
 Lechmere v. Lechmere 
 
 Lee 
 
 - (Lord) and Lewis 
 267, 
 
 ■ V. Speldt 
 V. Arnold 
 • and Cotton 
 
 and Kennedy 
 
 ■ V. Markhani 
 
 ■ V. Munn 
 and Oxley 
 
 Lee and Slanltij 
 Lee and Tapp 
 and Walwyn 
 
 A pp. 
 
 No. 24 
 
 216 
 
 428. 443 
 
 ii. 264 
 
 ii. 77, n. 
 
 85 
 
 95 
 
 ii. 298 
 
 239 ; ii. 14 
 
 ii. 173 
 
 ii. 355, n. 
 
 5 ; ii. 263, n. 
 
 ii. 260. 303. 
 
 304
 
 INDEX TO CASES. 
 
 xliii 
 
 Leach v. Ueuu 
 Leech v. Leech 
 Lees V. Burrows 
 
 V. Nuttall 
 
 Lefebury and Winged 
 
 Lefroy v. Lefroy 
 Legal V. Miller 
 Legard v. Johnson 
 Legate v. Sewell 
 Legeyt and Church 
 Legge V. Croker 
 Leicester's (Earl of) case ii 
 Leigh (Lord) and Forrester 
 
 ii. 
 
 and Lutkins 
 
 and Oswald 
 
 V. Winter 
 
 Page 
 
 . 171, 172 
 
 ii. 159 
 
 54 
 
 46 
 
 172. 213; 
 
 ii. 269 
 
 67. 70 
 
 148. 150 
 
 , 166. 175 
 
 194 
 
 233 
 
 307 
 
 377 
 
 Leigh and Smith 
 Leighton and Carleton 
 
 and Ovey 
 
 Leman and Dillon 
 
 ex parte 
 
 V. Whitly 
 
 131 
 
 ii. 70 
 
 ii. 374 
 
 ii. 179 
 
 ii. 27 
 
 ii. 264 
 
 ii. 307 
 
 390 
 
 ii. 259 
 
 ii. 138 
 
 Lench v. Lench ii. 135. 137, 138. 
 
 149 
 Lenham v. May 665 
 
 Le Neve and Norris ii. 126. 278 
 
 V. Le Neve ii. 222, 223. 278. 
 
 382 
 Lennon v. Napper 203. 423 
 
 Leonard v. Leonard 254 
 
 Lesley's case ii. 114 
 
 Lever (Sir Darcy) v. Andrews 
 
 ii. 135 
 
 and Jackson 260. 281, 282. 
 
 285 
 
 and Page 
 
 Levy v. Haw 
 V. Lindo 
 
 Lewes v. Fielding 
 
 v. Hill 
 
 Lewin v. Guest 293. 
 Lewis, ex parte 
 
 and Baxter 
 
 V. Campbell 
 
 and Campbell 
 
 and Hutton 
 
 ii. 305 
 
 233 
 
 443 
 
 ii. 308 
 
 ii. 152 
 
 448 ; ii. 26 
 
 ii. 110, n. 
 
 247 
 
 ii. 77 
 
 ib. 
 
 ii. 327 
 
 V. Lord Lechmere 216. 257. 
 
 428. 443 
 
 V. Loxham ii. 24 
 
 V. Madocks ii. 150 
 
 Lichden v. Winsmore 
 Lifford and Swannock 
 Lightbody and Goodwin 
 and Lubin 
 
 Lightburne v. Swift 
 Lill v. Robinson 
 
 and Stadt 
 
 Lilly v. Osborne 
 Lincoln and Darwin 
 Lindo and Levy 
 Lindsay v. Lynch 
 v. Talbot 
 
 Pago 
 
 460 
 
 517. 519 
 
 171. 432 
 
 223 
 
 58 
 
 ii. 27 
 
 85 
 
 ii. 146 
 
 329. 333 
 
 443 
 
 91. 117. 126 
 
 ii. 298 
 
 11. 
 
 II. 
 
 Lingood and Sir J. Barnar- 
 
 diston 
 Linwood, ex parte 
 Lippingwell and Inge 
 Lister and Dale 
 
 and Foxcraft 
 
 Lister and Goodxoin 
 Lister v. Lister 
 
 and Sikes 
 
 Littler and Clynn 
 
 Liversidge and Bellamy 
 
 Livins and Shelton 
 
 LlandafFand Ellard 203, 204. 210 
 
 Llewellyn v. Mackworth 394. 397 
 
 and Williams ii. 112 
 
 264 
 
 110 
 
 146 
 
 302 
 
 116 
 
 192 
 
 ii. 123 
 
 172. 192 
 
 184 
 
 370 
 
 32 
 
 Lloyd, ex parte ii. 265 
 
 v. Baldwin ii. 32. 34 
 
 V. CoUett 424. 426. 435. 
 
 443 ; ii. 20 
 
 v. Crispe 339 
 
 v. Griffith 63. 536 
 
 V. Johnes 68 
 
 V. Read. See Lloyd. 
 
 and Smith 49. 226, 227. 296 
 
 V. Spillett ii. 135, 136 
 
 V. Tomkies ii. 83 
 
 Loaring, ex parte ii. 64 
 
 Lock and Burrowes 6, 7. 12. 259 ; 
 
 ii. 263 
 Lockey v. Lockey 116 
 
 Lockley and Attorney-General 
 
 App. No. 18 
 
 Lockycr and Dickenson 
 Lodge and Buck 
 v. Lysely 
 
 Loggon and Pickett 
 Lomax and Hayward 
 Londen and Vizod 
 London (City of) and Dias 
 (City of) V. Richmond 
 
 ii. 52 
 227 
 545 
 263 
 566 
 362 
 30 
 257
 
 xliv 
 
 INDEX TO CASKS. 
 
 London {City of) v. Smilli 
 Treasurer of the W. I. 
 
 n. a 
 
 London and Tendring 
 Long V. Collier 355 
 
 Longchamps v. Fawcett 
 Longdale and Vizard 
 Lopus and Chandelor 
 Lord V. Lord 
 Loveday and Abdy 
 Loveland and Waburton 
 
 PaiTc 
 
 11. 
 
 Loveridge v. Cooper 
 Low V. Barchard 
 and Charlton 
 
 and Smith 
 
 Lowe V. Lush 
 
 V. Manners 
 
 and Roe 
 
 V. Swift 
 
 Lower and Weal 
 Lowes and Green 
 Lowndes v. Bray 
 V. Lane 
 
 134 
 
 207 
 
 ii. 27 
 
 152 
 
 362 
 
 3 
 
 73 
 
 ii. 261 
 
 ii. 158. 
 
 212 
 
 ii. 265 
 
 262 
 
 618. 628 ; 
 
 ii. 259 
 
 ii. 290 
 
 172. 343 
 
 223 
 
 195 
 
 130 
 
 194 
 
 ii. 31, n. 
 
 248. 342 
 
 295. 307 
 
 ii. 299 
 
 Lowten and Parkhurst 
 Lowther (Sir James) v. Lady 
 
 Andover 438 ; ii. 1. 
 
 V. Carrill 102 
 
 Lotvtherv. Carletonil 260.274.280 
 Lowther (Lord) and Gaskarth 
 
 88. 190 ; ii. 21 
 
 V. Lowther 269 ; 
 
 Loyd V. Read 
 Loyes v. Rutherford 
 Loxham and Lewis 
 Lubin V. Lightbody 
 Luellyn and Evans 
 Luffkin and Doe 
 Lvffkin D. JS'unn 
 Lukey v. O'Donnell 
 Lumley and Belmanno 
 
 V. Reisbeck 
 
 Lush and Lowe 
 
 V. Wilkinson 
 
 Luther v. Kid by 
 Lutkins V. Leigh 
 Lutwych V. Winford 
 Luxton V. Robinson 
 Lyddall v. Weston 
 Lynch and Burnett 
 and Lindsay 91 
 
 ii. 53. 
 
 109 
 
 ii. 143. 
 
 147 
 
 
 309 
 
 ii. 24 
 
 
 223 
 
 
 262 
 
 ii. 270. 
 
 292 
 
 ii. 
 
 271 
 
 
 260 
 
 
 222 
 
 
 252 
 
 173. 
 
 343 
 
 ii. 
 
 147 
 
 
 178 
 
 i 
 
 1. 70 
 
 
 57 
 
 
 240 
 
 351. 
 
 354 
 
 
 39 
 
 . 117. 
 
 126 
 
 Page 
 
 Lynes and Doe 298, n. 
 
 Lyon and Eaton 157 
 
 Lysely and Lodge 545 
 
 Lysney v. Selby 4, 5, 332. 560 
 Lyster v. Dolland, 541 ; ii. 129 
 Lytton V. Lytton 396 
 
 M. 
 
 Maberly v. Robins 243 
 
 Macartney v. Blackwood ii. 19 
 Macclesfield (Earl of) v. Blake 70 
 M'Culloch V. Cotbach 70 
 
 Macdonald v. Hanson 367 
 
 Macdowgall and Robertson ii. 278 
 Macghee v. Morgan 262 
 
 Machin and Hickford 547 
 
 Macfarlan and Moses 234 
 
 Mackenzie and York Buildings 
 
 Company ii. 109, 110. 115. 
 
 122, 123 126 
 
 Mackintosh v. Townsend ii. 130, n. 
 
 Mackrell v. Hunt ii. 8 
 
 Machreth and Fox ii. 109. 124 
 
 V. Marlar 438 
 
 V. Symmons ii. 57, 58. 61. 
 
 65, 66. 74. 76 
 
 and Waring 332 
 
 Mackrill and Cordwell ii. 297 
 
 Mackworth and Llewellyn 
 
 394. 397 
 Maclachlan and Templer 552 
 Maclean v. Dunn 108 
 JWLeaij and Edwards 565 
 Macleod and Drummond ii. 54 
 MacMew and Jlgar 276 
 Macklew and Causton 548 
 JMacmahon and Gennor 168 
 Macnamara v. Arthur 248 
 and Rigby (6 Yes. jun. 
 
 117) 70 
 and Rigby {-6 Yes. jun. 
 
 466) ib. 
 and Rigby (6 Yes. jun. 
 
 515) 57 
 
 V. Williams 230 
 
 Mac Neil and Morris 250 
 
 Mac Queen v. Farquhar 294. 353 ; 
 ii. 20. 25. 295 
 Maddeford v. Austwick 261 
 
 Maddin and Pelly ii. 136 
 
 Maddison v. Andrews ii. 139
 
 INDEX TO CASES. 
 
 xlv 
 
 
 
 Page 
 
 Maddox v. Maddox ii. 
 
 278. 
 
 298 
 
 and Orrell 
 
 
 397 
 
 Madocks and Lewis 
 
 ii. 
 
 160 
 
 Magdalen College case 
 
 ii. 
 
 158 
 
 Margrane v. Archbold 
 
 205. 
 
 215 
 
 Maguire v. Armstrong 
 
 ii. 
 
 272 
 
 Maidment v. Jukes 
 
 32 
 
 9, n. 
 
 Main v. Melbourn 49. 
 
 121. 
 
 428 
 
 Maitland and Farguson 
 
 
 263 
 
 V. Wilson 
 
 ii. 
 
 30^ 
 
 Maiden and Menill 
 
 ii. 
 
 262 
 
 Mallom V. Bringloe 
 
 ii. 
 
 108 
 
 Malpas V. Ackland 
 
 ii. 
 
 293 
 
 Maltby and Meux 
 
 ii. 
 
 291 
 
 Mammon and Coote 
 
 ii. 
 
 279, 
 
 Man and Drury 
 
 
 450 
 
 Manners and Lowe 
 
 
 223 
 
 Manning, ex parte 
 
 ii. 
 
 4. 8 
 
 and Baylis 
 
 329, n. 
 
 and Doe 
 
 ii. 
 
 160 
 
 Mansell v. Mansell 
 
 ii. 
 
 269 
 
 M^ansell v. Price 
 
 
 153 
 
 Mansfield's case 
 
 
 359 
 
 Mapes and Foster 
 
 ii. 83 
 
 Marbury and Tarback 
 
 ii. 
 
 179 
 
 Margravine of Anspach 
 
 V. 
 
 
 Noel 
 
 
 224 
 
 Mark v. Willington 
 
 
 180 
 
 Markant and Halcot 
 
 ii. 
 
 149 
 
 Markham and Lee 
 
 ii. 
 
 298 
 
 Marlar and Mackreth 
 
 
 438 
 
 Marlborough (Duchess 
 
 of) 
 
 
 and Brace 479. 647 ; ii. 
 
 307 
 
 (Duke of) V. Lord 
 
 
 Godolphin 
 
 ii. 81 
 
 Marlow V. Smith 
 
 340. 
 
 348 
 
 Marriot and Spencer 
 
 ii. 85 
 
 Marsh, e(c parte ii. 
 
 111 
 
 112 
 
 and Brett 
 
 
 666 
 
 and Jones 
 
 ii. 
 
 166 
 
 and Wade 
 
 263, n. 
 
 Marshall v. Frank 
 
 ii. 
 
 303 
 
 and Nind 
 
 ii. 96 
 
 Marsham and Griswold 542; ii. 286 
 Martin and Betting 79 
 
 and Burrough 10 
 
 and Doe 8; ii. 179 
 
 V. Mitchell 85. 197. 200. 203 
 
 V. Smith 240. 247 
 
 and Style, or Styles ii. 281, 
 
 282 
 and Watts 69 
 
 Page 
 
 Martinez v. Cooper 468 
 
 Martyn and Blakeston 648 
 
 Martyr and Doe ii. 160. 169 
 
 and Powell ii. 2. 25 
 
 Marwood and Small ii. 50 
 
 V. Turner 379 
 
 Mayre and Darkin 61 
 
 Maryon V. Carter 422 
 
 Mascall and Norton 213 
 Mason v. Armitage 105. 109. 206 
 
 V. Corder 299. 304. 339 
 
 and Johnson 451 
 
 Massey and Dawson ii. 116. 300 
 
 and Roberts 50,51; 
 
 ii. 2 
 
 Mathers and Pember 33.39.160. 
 
 169. 251 ; ii. 301 
 
 Matthews v. Dana 223 
 
 andEgerton 85 
 
 V. Hollings 654 
 
 V. Jones ii. 31, n. 297 
 
 and Moss 40. 51. 222 
 
 and Stubbs 67 
 
 V. Wallwyn ii. 221 
 
 Mattock V. Hunt 287 
 
 Maund and Watkins ii. 189 
 
 Maunde and Walter 9. 344 
 
 Maundrell v Maundrell 491. 618 
 Maunsfield's case 369 
 
 May and Iggulden 157 
 
 and Lenhani 665 
 
 and Newman 232 
 
 Mayfield v. Wadsley 83, 84 
 
 Mayor v. Gowland 184 
 
 Mayer and Wright ii. 299 
 
 Mayhew and Bennet ii. 149 
 
 Mayhow and Mooe ii. 274. 305, 
 
 306 
 Maynard's (Serj.) case 653, 664 
 Mayoss and Spurrier ii. 19 
 
 Mead and O'Neal ii. 70 
 
 V. Lord Orrery ii. 63. 65 
 
 Meadows v. Duchess of King- 
 ston ii. 307* 
 V. Tanner 29 
 
 Meal and Seagood 90. 95. 121. 
 
 124 
 Mease v. Mease 133 
 
 Meder v. Birt ii. 307 
 
 Medlicott v. O'Donel 265. 396 ; 
 
 ii. 126 
 and Toole 116
 
 xlvi 
 
 INDEX TO CASES. 
 
 Page 
 
 Meers and Heme 263 
 (Sir Thomas) and Lord 
 
 Stourton 433, n. 
 (Sir Thomas) v. Lord 
 
 Stourton 433 
 
 Melbourn and Main 49. 121. 428 
 
 Meller and Paine 278, 279. 282. 
 
 329. 427. 434 
 
 MelHsh V. Mellish 158, n. 
 
 V. Motteux 313 
 
 Melsington (Lord) and Rosa 
 
 mond 
 Mendham and Boswell 
 Menill and Maiden 
 Merceau and Preston 
 Meredith and Goodtitle 
 and Woodhouse 
 
 166 
 353 
 ii. 262 
 133 
 181 
 ii. 109 
 133 
 276 
 ii. 279 
 ii. 32. 38, 
 39. 52. 66 
 Mertens v. Adcock 40 
 
 Mertins v. JoHffe ii. 274. 293. 302 
 
 and Lacon 115, 116. 121. 
 
 189 
 Mesnard v. Aldridse 
 
 Meres v. Ansell 
 Merest and Morse 
 Merry v. Abney 
 Merryman and Elliott 
 
 Metcalf V. Clough 
 
 V. Scholey 
 
 Metcalfe v. Pulvertoft 
 
 Meux V. Maltby 
 Meynell v. Garraway 
 Michaux v. Grove 
 Micklem and Doe 
 Middlemore v. Goodale 
 Middleton and Crosby 
 
 V. Hallett 
 
 V. Spicer 
 
 JVliddleton {Lord) v 
 Middleton v. Eyre 
 
 Lord and Pullen 
 
 JVlidgeley and Bradshaiv 
 Mighell and Gregory 
 Milbanke and George ■ 
 
 Mildmay v. Hungerford 
 
 V. Mildmay 
 
 Miles V. Langley 
 and Thomson 
 
 Mill and Hiern 
 
 u. 10. 57 
 
 33 
 
 47 
 
 641 
 
 ii. 173. 
 
 178. 283 
 
 ii 291 
 
 ii. 274 
 
 ii. 108 
 
 158, n. 
 
 ii. 77 
 
 168 
 
 ii. 103 
 
 173 
 
 Wilson 91 
 
 91, n. 
 
 195 
 
 ii. 20 
 
 116. 275 
 
 ii. 169. 
 
 265 
 
 309 
 
 ii. 306 
 
 ii. 292 
 
 240, 241. 
 
 287 
 
 ii. 291 
 
 Pane 
 
 Mill and Portman 219. 223. 32°1 
 Millard's case ii. 260. 306 
 
 Miller V. Blandist 118. 131 
 
 and Legal 148. 150 
 
 and Rex 157 
 
 Milligan v. Cooke 303 
 
 Millington and Williams 46 
 
 Mills V. Auriol ii. 104 
 
 and Milner 174. 180 
 
 Milner and Curwyn 264 
 
 V. Horton li. 99, 100 
 
 V. Mills 174. 180 
 
 Milnes v. Gery 275 
 
 Milward and Kendar ii. 149 
 
 V. Earl Thanet 425. 437 
 
 Minchin and Whitcomb ii. 109 
 Minet, ex parte 85 
 
 Minor, ex parte 60. 278 
 
 Mitchell and Buckle ii. 173, 174, 
 
 175 
 
 V. Hayne 48 
 
 and Martin 85. 197. 200. 
 
 203 
 Mitchell V. Neale 340. 450 
 
 and Richardson ii. 303 
 
 Mitford V. Mitford ii. 294 
 
 Mitton and Roe ii. 163. 165. 168 
 Moccatta v. Murgatroyd ii. 296 
 Moggridge v. Jones 246 
 
 Molesworth v. Opie 70 
 
 Moleyn's ( Sir John De) case 647 
 Mollett V. Brayne 79 
 
 Monck and Broome 174. 180. 
 
 189. 191 
 Monk V. Huskisson ii. 11 
 
 Monnoux and Appowel ii. 77, n. 
 Montague and Sir Thomas 
 
 Harvey ii. 283 
 
 V. Jeffries 185 
 
 Montesquieu v. Sandys ii. 121 
 
 Montford (Lord) and Gibson 174 
 
 (Lord) V. Lord Cadogan 
 
 ii. 266 
 Monypeny v. Bristow 181 
 
 Moore v. Bennett ii. 293 
 
 V. Edwards 113 
 
 V. Foley 157 
 
 and Frere ii. 75. 265 
 
 and Jennings ii. 279 
 
 Moore and Pollexfen 171 ; ii. 20 
 
 57. 67. 70, 71. 73, 74 
 
 and Stokes 91. 100. 102
 
 INDEX TO CASES. 
 
 xlvii 
 
 Moore and Walker 
 
 and Ward 
 
 and Wildwoose 
 
 Page ] 
 236 
 179 j 
 ii. 243, 244 ! 
 
 Moor V. Mayhow ii. 274. 306, 306 
 Morant and Hicks 
 Morecock v. Dickens 
 Morgan, ex parte ii. 
 
 and Baker 
 
 and Barksdale 
 
 and Charlwood 
 
 and Corder 
 
 Morgan and Goodtitle 
 
 and James 
 
 and M'Ghee 
 
 and Pearson 
 
 and Randall 
 
 V. Shaw 
 
 V. Tedcastle 
 
 and Walters 
 
 and Wynn 
 
 Morison v. Turnour 
 Morony v. O'Dea 
 JVIorphelt v. Jones 
 Morrel and Woodman 
 
 8 
 ii. 221 
 109, n. 112 
 68 
 325 
 329, n. 
 358 
 484. 487. 
 ,560 
 257 
 262 
 ii. 263 
 ii. 132. 166 
 223. 226 
 326 
 113 
 430 ; ii. 26 
 101. 103 
 266 
 116 
 ii. 142. 
 144 
 Morrice v. Bishop of Durham 68 
 
 and Iseham 
 
 and Leake 
 
 Morris and Barber 
 
 V. Barrett 
 
 and Bowen 
 
 V. Clarkson 
 
 and Doe 
 
 454 
 114. 120 
 
 255 
 ii. 129 
 63. 86 
 
 348 
 ii. 156 
 
 (See Norris) v. Howland 
 
 JVIorris v. Knight 245, n. 
 
 Morris and M'Neil 250 
 
 and Lord Portmore 166 
 
 V. Preston 307 
 
 V. Stephenson 198 
 
 and Staines 39. 450 ; ii. 25 
 
 and Twining 24. 30. 205. 
 
 261. 298, 299 
 Morrison v. Arnold 370 
 
 Morse v. Merest 276 
 
 V. Faulkner ii. 263, 264 
 
 V. Royal 265 ; ii. 126 
 
 Morshead v. Frederick 72. 
 
 App. No^ 10 
 
 Mortimer v. Capper, 260. 280. 
 
 282. 284 
 
 V. Orchard 116. 126; ii. 300 
 
 Page 
 
 Mortley and Ramsbottom 94. 98 
 Mortlock V. Buller 64. 104. 201. 
 
 205, 206, 207. 259. 261. 305 
 Moses and Goodright ii. 161 
 
 V. Macfarlan 234 
 
 Moss V. Gallimore 252 
 
 V. Matthews 40. 51. 222 
 
 Mosse and Trevannian ii. 305 
 Mostyn and Boardman 128 
 
 Moth V. Atwood 265 
 
 Motives and Simon 49. 105 
 
 Motteux and Mellish 313 
 
 Moulton V. Hutchinson ii. 375 
 
 Mountford v. Catesby ii. 82 
 
 V. Ponten ii. 184 
 
 V. Scott ii. 280 
 
 Moxon and Price 69 
 
 Moyle V. Home 119 
 
 Moyse v. Gyles ii. 127 
 
 Mudd and Jones ii. 10 
 
 Muggridge and Annesley 48, 49 ; 
 
 ii. 28 
 Mulgrave (Lord) and Sheffield 
 
 340. 433 
 
 (Lord) and Phipps ii. 355 
 
 MuUins V. Townshend 58 
 
 Mumma v. Murama ii. 141. 143, 
 
 144 
 Munn and Lee 239 ; ii. 14 
 
 Munns and Nervin ii. 81. 93 
 
 Munt and Grant 309 
 
 Murgatroyd and Mocatta ii. 296 
 Murless v. Franklin ii. 142 
 
 Murray and Ayliffe ii. 120 
 
 V. Palmer 263. 266 ; ii. 126 
 
 Muschamp and Earl of Ard- 
 
 glasse 264 
 
 JMtiseum ( Trustees of the Bri- 
 tish) and Duke of Bedford ii. 81, 
 App. No. 22 
 Musgrave v. Dashwood 196, 197 
 
 and Saunders 31 
 
 Musgrove and Bennet ii. 172 
 
 Mussell V. Cooke 94 
 
 Mutts V. Kancie ii. 62 
 
 Myddleton v. Lord Kenyon ii. 168 
 Mynd and Hardwicke ii. 33. 61 
 
 N. 
 
 Nairn v. Prowse ii. 69, 60. 63. 75. 
 
 162
 
 xlviii 
 
 INDEX TO CASES. 
 
 Page 
 
 Nanney and Jones 22. 45 
 
 Nan nock v. Horton ii. 375 
 Napper v. Lord Allington ii. 103 
 
 and Lennon 203. 423 
 
 Nash V. Ashton ii. 85 
 
 and Goring ii. 164 
 
 V. Palmer ii. 83 
 
 and Shelley 272 
 
 V. Turner 241, n. 
 
 Naish and Tourville ii. 265. 275 
 
 Neal and Viney 84 
 
 Neale and Mitchel 340. 450 
 
 V. Parkin 320 
 
 Nedham v. Beaumont ii. 157 
 
 Needham and Norden ii. 198, n. 
 
 Needier v. Wright ii. 267 
 
 Nelson V. Aldridge 45 
 
 V. Nelson 164. 323 
 
 and Reynolds 216. 233 
 
 and Smith 64 
 
 Nelthorpe and Harding 564, 665 
 
 Nelthrope v. Pennyman 73 
 
 Nenny and Langham ii. 374 
 
 Nervin v. Munns ii. 81. 93 
 
 Nettleship and Clerk ii. 167 
 
 Neve (Le) and Norris ii. 126 
 
 Nevil and William 118. 131 
 
 Newall V. Smith ii. 26 
 
 Newbold V. Roadknight 183 
 Newcombe and Trower4. 42. 309 
 
 Newell V. Ward ii. 38 
 
 Newham and May 232 
 
 Newland v. ii. 196 
 
 Nevvland and Fairchild ii. 243 
 
 and Fairclaim ii. 242 
 
 Newlyn and Pearce ii. 296 
 
 Newman and Day 258 
 
 and Farr ii. 54 
 
 and Jones 152 
 
 V. Rodgers 429 
 
 and Thorn 460 
 
 Newnham and Finch ii. 282 
 Newport's (Andrew) case ii. 169 
 
 Newstead v. Searles ii. 161. 278 
 
 Newton and Baylis ii. 144 
 
 V. Preston ii. 135, 136, 137 
 
 and Waddy 325 
 
 and Wheeler 99. 198 
 
 Nicholls and Chivall ii. 222 
 
 and Hardingham ii. 306 
 
 V. How 515 
 
 Nicloson V. Wordsworth 218 ; ii. 
 
 61 
 
 Page 
 
 Nicois V. Gould 266, 266 
 
 Nightingale and Farrer 233. 287 
 
 Nind V. Marshall ii. 96 
 
 Nisbitt and Scott 66, 67 
 
 T^ixon, ex parte 62 
 
 Noble V. Nurell 326 
 
 V. King ii. 92 
 
 JVodder v. Riiffin 67 
 Noel and Anspach (Margravine 
 of) 
 
 V. Bewley 
 
 JVoel V. Hoy 
 
 Noel V. Jevon 
 
 V. Ord 
 
 v. Weston 
 
 Norcliffe v. Worsley 
 Norden v. Needham 
 
 224 
 350 
 
 208. 221 
 359 
 206 
 
 348. 461 
 194 
 
 . 198, n. 
 
 Norfolk (Duke of ) and Forth, 
 
 540. 546 ; ii. 203 
 
 ■ (Duke of) v. Worthy, 34. 42 
 
 49. 53. 234. 309. 322 
 Norman v. Foster ii. 98 
 
 JVorinan and Wood ii. 131 
 
 JVormanby [Marquis of)v. 
 
 Duke of Devonshire 99. 131. 
 
 212. 213 
 
 Norris and Hovvland 289. 295 ; 
 
 ii. 2 
 
 v. Le Neve ii. 126 
 
 and Schneider 
 
 North V. Langton 
 Northumberland (Duke of) 
 
 and Jervoise 
 Northwick (Lord) and Tait 
 
 Norton and Crop 
 
 V. Herron 
 and Hobs 
 v. Mascall 
 
 278 
 100 
 521 
 
 340 
 70 
 
 208. 210 ; ii. 
 
 133. 137. 139 
 
 63 
 
 262 
 
 213 
 
 11. 
 
 Norwich (Bishop of) and Mar- 
 quis of Townshend 506 
 Nosworth and Seymour ii. 306 
 Nosworthy and Basset ii. 259. 306 
 
 Nott v. Hill 
 
 264. 274 
 
 and Johnson 
 
 ii. 103 
 
 V. Shirley 
 
 178 
 
 Nottle and Kingdon 
 
 ii. 78 
 
 Nouaille v. Greenwood 
 
 356 
 
 Nourse v. Yarworth 
 
 626 
 
 Noyes and Hall ii. 
 
 109. 126 
 
 Nugent V. GifFord 
 
 ii. 63, 64 
 
 Nunn and Goodison 
 
 245 
 
 ffimn and Luff'kin 
 
 ii. 271
 
 INDEX TO CASES. 
 
 xlix 
 
 Nurton v. Nuiton 
 Nutt and White 
 Nuttall and Lees 
 
 O. 
 
 Page 
 
 ii. 52 
 
 277 
 
 46 
 
 Oakley and Burroughes 225, 226, 
 
 227 
 Obeen and Hawkins 192 
 
 O'Brien and Roche 265 ; ii. 126 
 O'Connor v. Spaight 145 
 
 Odea and Browne ii. 266 
 
 O'Dea and Morony 266 
 
 O'Dell V. Wake ii. 197 
 
 Odingsale and Coward 428 
 
 O'Donel and Medlecott 265. 395 ; 
 
 ii. 126 
 O'Donnell and Lukey 260 
 
 O'Fallon V. Dillon ii. 243 
 
 O 'Flaherty and Hartly 548 
 
 Ogbourne and Pitcairne 149. 167 
 Ogilvie V. Foljambe 33. 89, 90. 95. 
 
 103 
 Oglander and Harmood 394, 395 
 O'Gorman v. Comyn ii. 170 
 
 O'Hafa V. O'Neil ii. 135 
 
 O'Herlihy v. Hedges 91. 124, 125. 
 
 211 
 O'Kenden and Gould 263 
 
 Oldfield V. Round 26. 307. 313 
 Oldin V. Saaiborne ii. 116 
 
 Olive and Stephens ii. 168 
 
 Oliver V. Court ii. 110 
 
 Omerod v. Hardman 142. 433 ; 
 ii. 33, n. 42 
 O'Neal V. Mead ii. 70 
 
 Oneby v. Price 192 
 
 O'Neil and O'Hara ii. 135 
 
 Onions v. Tyrer 183 
 
 Only V. Walker ii. 301. 302 
 
 Opie and Molesworth 70 
 
 Orchard and Mortimer 116. 126 ; 
 
 ii. 300 
 Ord and Brandling ii. 274 
 
 V. Noel 206 
 
 O'Reilly v. Thompson 118 
 
 Orford and Cholmondleij ii. 266 
 Orlebar v. Fletcher 171 ; ii. 197 
 Ormsby and Crofton ii. 170. 269. 
 
 291 
 Ormond (Lord) v. Anderson 90 
 O'Rourke v. Percival 85. 210 
 
 VOL. I. G 
 
 Orrell v. Maddox 397 
 
 Orrery (Lord) and Mead ii. 53. 55 
 Ortread v. Round 199, 200 
 
 Osbaldeston v. Askew 353 ; ii. 28 
 Osborne and Daly 223 
 
 and Roll ii. 77, n. 
 
 Osborn v. Lea ii. 263 
 
 and Lilly ii, 146 
 
 Osbourne and Rex 158 
 Osgood V. Strode ii. 163. 378 
 Osstdston {Lord) v. Deverell 333 
 Oswald V. Leigh ii. 374 
 Ovey V. Leighton ii. 307 
 and Pritchard 212. 275 
 
 Owen V. Davies 87. 200 ; ii. 2. 9 
 
 V. Foulks (6) Ves. jun., 
 
 630, n. (6) ii. 110 
 
 V. Foulks (9 Ves. jun. 348.) 
 
 70 
 
 V. Gooch 49 
 
 V. Parry 22 
 
 Oxenden and Doe 162 
 
 Oxenden v. Lord Exmonih ii. 1 1 
 
 27 
 Oxenham v. Esdaile ii. 57 
 
 Oxford {Lord) and Langley 
 
 ii. 32, n. 56 
 Oxford (Lord) v. Lady Rodney 188 
 Oxley V. Lee ii. 173 
 
 Oxwick V. Brockett 323 
 
 Oxwith V. Plummer ii. 293 
 
 P. 
 
 Page V. Lever 
 
 and Robinson 
 
 ii. 305 
 139 
 
 Page and Sharp 449 
 
 Paignon and Heathcote 262 
 
 Paine and Baker 168 
 
 V. Meller 278, 279. 282. 
 
 329. 427. 434 
 
 and Bishop of Winchester 
 
 ii. 25. 281 
 Palmer and Cadell ii. 357, n. 
 
 and Murray 263. 266 ; 
 
 ii. 126 
 
 and Nash ii. 83 
 
 Palsey v. Freeman 6 
 
 Parker and Attorney-General 157 
 
 and Baldcy * 293 
 
 V. Blylhmore ii. 309 
 
 V. Brooke ii. 297
 
 I 
 
 INDEX TO CASES. 
 
 II 
 
 Page 
 
 Parker and Colville n. 161. 166 
 
 V. Frith 429 
 
 and Harvey 194 
 
 and Hoare ii. 304 
 
 — and Propert 101 
 
 V. Staniland 82, 83 
 
 V. Serjeant ii. 161 
 
 and Bishop of Worcester 
 
 ii. 259 
 Parkes v. White 
 
 ex parte 
 
 Parkhurst and Dorn>er 
 
 V. Lowten 
 
 Parkin and Neale 
 Parkins v. Titus 
 Parks V. Wilsoa 
 Parlett and TuH 
 Parnther v. GaitskiH 
 Parr v. Eliason 
 Parry v. Carwarden 
 
 and Owen 
 
 V. Wright 
 
 109 
 
 ii. 59 
 
 397 
 
 ii. 299 
 
 320 
 
 460 
 
 216 
 
 132 
 
 47 
 
 ii. 169 
 
 ii. 172 
 
 22 
 
 ii. 268 
 
 Parsons v. Freeman (Revoca- 
 tion) 176 
 
 and ConoIIy 24, 25. 27 
 
 Parteriche v. Powlett 133 
 
 Partington, ex parte 66, 68, n. 
 
 Partridge v. Usborne 4 
 
 Pasley v. Freeman 5 
 
 Pate and Urmston 559 
 
 Paternoster and Webb 80 
 
 Paterson and Gibsoji 424 
 
 Paton V. Brebner 304 
 
 V. Rogers 219. 223 ; ii. 10 
 
 Patten and Alsop 120, 121 
 
 Patterson v. Slaughter ii. 308 
 
 Paul V. Wilkins 1-72 
 
 Paxton and Cox ii. 149 
 
 Payne v. Cave 43 
 
 V. Drewe ii. 199 
 
 Peachy^s {Sir John) case ii. 137 
 
 Peacock v. Evans 265, 266 
 
 v. Thewer ii. 182 
 
 Peahall and Hartley 341 
 
 Peake, ex parte ii. 61 
 
 Pearce v. Newlyn • ii. 296 
 
 Pearman and Ireson 652 
 
 Pearson v. Morgan ii. 263 
 
 V. Pearson 70 
 
 v. Pulley ' 396 
 
 Pechell v. Fowler 260 
 
 Pegge and Doe 469. 483 
 
 Page 
 
 Peles V. Jervies ii. 95 
 
 Pelley v. Maddin ii. 135 
 
 Pember v. Mathers 33. 39. 160. 
 169. 251 ; ii. 301 
 Pembroke (Earl of) and Baden, 
 
 172. 527 
 
 (Earl of) and Cator 565 
 
 Pembroke's (Earl of,) case 528 
 Pendleton v. Grant 154 
 Pengall {Lord) v. Ross 121. 123 
 Penhallow and Smartle ii. 141 
 Penhules and Treswallen 325 
 Penn and Cuff 133 
 Pennill v. Hallett ii. 152, 163 
 Pennington v. Beechey 
 Pennyman and Nelthorpe 
 Penpraze and Prior 
 Pentland v. Stokes 
 Penton and Davies 
 Pepys and Jenkinson 
 Percival and Foley 
 and O'Rourke 
 
 172 
 
 Percy and Crosby 
 Perkins and Biscoe 
 
 and Doe 
 
 Perry v. Edwards 
 
 and Freebody 
 
 v. Phelips 
 
 Peters v. Anderson 
 Peterson v. Hickman 
 Petrie and Jackson 
 Phelips and Perry 
 Philips and Bateman 
 v. Bridges 
 
 ii. 307 
 
 73 
 
 539 
 
 ii. 222 
 
 215 
 
 32. 136 
 
 107, n. 
 
 85. 210 
 
 241 
 
 ii. 269 
 
 10 
 
 ii. 84 
 
 227 
 
 ii. 149 
 
 566 
 
 266, 267 
 
 250 
 
 ii. 149 
 
 85. 241 
 
 379 
 
 V. Duke of Buckingham 211 
 
 V. Fielding 
 
 V. Redhel 
 
 and Steele 
 
 Phillips V. Bistolli 
 
 V. Chamberlain 
 
 and Doe 
 
 and Harvey 
 
 and Sir Harry Hicks 
 
 240. 246 
 
 ii. 293 
 
 544 
 
 43 
 
 158, n. 
 
 493 
 
 532 
 
 267. 
 
 298 
 
 and Lady Saltoun 335 
 
 Phillimore v. Barry 101, 102. 105 
 Philpott and Fector ii. 76 
 
 Phipps V. Lord Mulgrave 98 
 
 v. Sculthorpe 79 
 
 Phyn and Bell ii. 130, n. 
 Pickering v. Dowson 316 
 V. Lord Stamford 362
 
 INDEX TO CASES. 
 
 Pickersgill and Bartlett 
 
 Page 
 
 114; ii. 
 
 136. 139 
 
 Pickett V. Loggon 263 
 
 Pierce and Acton 213 
 
 and Basket 454 
 
 and Smith ib. 
 
 Pierson and Blemerhasset 146 
 Pigott V. Waller 177. 181 
 
 Pilling V. Armitage ii. 301 
 
 Pimm V. Goodwin . 397 
 
 Pinchard V. Withers 198 
 
 Pincke v. Curteis 246. 295. 427. 
 
 434 
 Wads worth 
 Ekins 
 Ogbourne 
 
 Pindar v. 
 Pippin V. 
 Pitcairne 
 
 Pitt and Berney 
 Pitl V. Chohnondhy 
 Pitt V. Donovan 
 
 352 
 
 161 
 149. 167 
 264 
 522 
 
 ii. 278 
 
 and Langford, 179, 180.430 
 
 Pitts V. Edelph ii. 274 
 
 Piatt (Lady) v. Sleap 461 
 
 Pledwell and Thomas ii. 195 
 
 Plowman and Doe 509 
 
 Plummer and Oxwith ii. 293 
 
 and Champion 90 
 
 Plymouth (Earl of) v. Hick- 
 man ii. 149 
 Pocock and Drayson ii. 51 
 Pole V. Pole ii. 145 
 Pollard and Wood ii. 66 
 Pollexfen v. Moore 171 ; ii. 20. 
 57. 67. 70, 71. 73, 74 
 PoUyblank v. Hawkins 460 
 Pomeroy, ex parte 52 
 Pomfret (Earl of) v. Lord 
 
 Windsor 394 
 
 Ponten and Mountford ii. 184 
 
 Poole V. Rudd 50 
 
 V. Shergold 278. 293 
 
 Pope and Bevant 359 
 
 V. Biggs 252 
 
 and Goodtitle ib. 
 
 V. Harris 204 
 
 V. Root 260. 282 
 
 V. Simpson 367. 428 
 
 Popham V. Eyre 91. 125. 211. 429 
 
 and Roe ii. 138 
 
 Pordage v. Cole 49 
 
 Porter and Blakey 241 
 
 and Eldridge 223 
 
 and Fry ii. 227 
 
 Page 
 
 Porter and Richards 90 
 
 Portman v. Mill 219. 223. 321 
 
 V. Willis ii. 201 
 
 Portmore (Lord) v. Morris 166 
 
 (Lord) V. Taylor 265, 266. 
 
 Portsmouth (Lord) v. Lord 
 
 Effingham 394 
 
 Pott and Doe 177, n. 
 
 Potter and Ithel ' 102 
 
 V. Potter 125. 179. 189 
 
 Potts V. Curtis 268 
 
 V. Webb 427. 442 
 
 Poultney v. Holmes 81 
 
 Pounsett and Kirkland 11. 239. 
 
 249 
 Powell V. Divett 136 
 
 V. Dillon 92 ; ii. 291 
 
 Poivell V. Douhhle 42. 296 
 
 Powell V. Edmunds 32. 134 
 
 Powell or Deem and Hoivorth 
 
 ii. 55. 293 
 Powell V. Martyr ii. 2. 25 
 
 V. Powell 194. 349 
 
 and Seabourne ii. 103 
 
 and Stratford 166 
 
 and Thomas 663 
 
 Powis (Countess of) and Doy- 
 
 ley 60 
 
 Powlett and Kelly 154 
 
 and Parteriche 133 
 
 Poyntz and Burney ii. 64 
 
 Prankerd v. Prankerd ii. 143 
 
 Pratt and Crisp ii. 146 
 
 Prattent and Farebrother 48 
 
 Prestage v. Langford ii. 113. 117 
 Preston v. Barker 66 
 
 V. Merceau 133 
 
 and Morris 307 
 
 and Newton ii. 135, 136, 137 
 
 V. Tubbin ii. 279. 281 
 
 Preswick and Walker ii. 73, 74 
 Price and Baugh 264, 265, 266 ; 
 
 ii. 266 
 
 and Bull 54 
 
 V. Byrn ii. 115. 126 
 
 V. Copner 396 
 
 and Curtis 58 
 
 Price V. Dyer 139. 146. 149, 150. 
 
 309 
 Price and Harrington 552 ; ii. 76 
 
 V. Jones 426 
 
 and Oneby 1»4
 
 lii 
 
 INDEX TO CASES. 
 
 Page 
 
 Price and JVlansell 153 
 
 Price V. Moxon 69 
 
 V. Price (1 Vern. 185.) 
 
 ii. 307 
 
 V. Price (1 Sim. & Stu. 386.) 
 
 71 
 
 V. Strange 340 
 
 Priddy v. Rose ii. 265 
 
 Prideaux v. Prideaux 67 
 
 Prideux v. Gibbin ^ 176 
 
 Prior V. Penpraze 539 
 
 Pritchard and Carter ii. 304 
 
 V. Ovey 212. 275 
 
 V. Quinchant 164 
 
 Proctor V. Johnson ii. 92 
 
 and Kemys 107 
 
 and White 106,107 
 
 V. Warren ii. 147 
 
 Prodgers v. Langham, ii. 169, 170 
 Propert v. Parker 101 
 
 Prosser v. Watts 356 
 
 Protheroe and WilHams 662 
 
 Prowse and Nairn, ii. 69, 60. 63. 
 75. 162 
 Prujean and Smart 182 
 
 Pugh and Harris 543 
 
 Pullen and Dalby 298. 434 
 
 V. Lord Middleton 194 
 
 Pulley and Pearson 395 
 
 Pulteney and Lady Cavan ii. 88 
 
 and Dyer 173 
 
 Pulvertoft and Metcalfe ii. 173. 
 178. 283 
 
 V. Pulvertoft ii. 167. 178 
 
 Purrier and Harford 278 
 
 Purvis V. Rayer 335 
 
 Putbury v. Trevalion 178, n. 
 
 Putland and Doe 502 
 
 Vye, ex parte ii. 168 
 
 V. Daubuz ii. 103 
 
 Pyke V. Williams 116 
 
 Pyman and Walters 224 
 
 Q. 
 
 Radcliffe v. Fursman 
 V. Warrington 
 
 Page 
 
 ii. 299, n. 
 
 335. 424. 
 427. 432 
 Radd and Taylor 158. 167 
 
 Radford v. Blood worth ii. 185 
 
 V. Wilson 194, 195 ; ii. 307 
 
 and Young 463 
 
 Quaintrell v. Wright 
 Quincey and Scrafton 
 ex parte 
 
 162 
 
 ii. 211 
 
 38 
 
 Quinchant and Pritchard 164 
 
 R. 
 
 Rabbett v. Raikes 
 
 38 
 
 Radnor (Earl of) v. Shafto 189, n. 
 
 190 
 
 7 V. Vendebendy, or Ro- 
 
 theram 517, 518, 519 ; ii. 306 
 Raikes and Rabbett 38 
 
 Raindle and Brown 196 
 
 Raine and Barclay 632 
 
 Raleigh's (Sir Waller) case ii. 144 
 Ramsbottom v. Gosden 139 
 
 and Hooper ii. 76 
 
 V. Mortley 94. 98 
 
 V. Tunbridge 98 
 
 Ramsdon v. Hylton ii. 166 
 
 Randall and Burkett 131 
 
 V. Errington ii. 122. 124 
 
 V. Morgan ii. 132. 166 
 
 and Tappenden 238 
 
 Rann v. Hughes 99. 141 
 
 Rapier and Seymour 154 
 
 Rastall and Wilson ii. 299 
 
 Rastel V. Hutchinson 114; ii. 139 
 Rastron and Deane 260 
 
 Rawlins v. Burgis 179 
 
 Rawson, ex parte ii. 259 
 
 Rayer and Purvis 335 
 
 Raymond v. W^ebb 64 
 
 Rayner v. Julian 229 
 
 Rea V. Williams ii. 121. 129 ; 
 
 (App. No. 23.) 
 Read and Edden 234 
 
 Read and -Hosier 141 
 
 Read and Lloyd ii. 143. 147 
 
 and Smith ii. 244 
 
 and WagstafF ii. 306 
 
 V. Ward ii. 184 
 
 Reade and Cripps 554 
 
 and Roe 470. 486 
 
 Redding v. Wilkes 115 
 
 Redhel and Philips ii. 293 
 
 Redington v. Redington ii. 136. 
 141, 142, 143, 144 
 Reed v. Williams ii. 297 
 
 Reeves and Hardy ii. 297. 308 
 Reid V. Shergold ii. 261 
 
 Reid and Watson 438
 
 INDEX TO CASES. 
 
 liii 
 
 Reilly v. Jones 
 Reisbeck and Lumley 
 Relfe and Frewen 
 Remington v. Deverall 
 Revel V. Hussey 
 Rex V, Abbot 
 Rex V. Bellringer 
 
 V.Boston 114 
 
 V. Bullock 
 
 V. Cracrofl 
 
 V. Dalby 
 
 V. Everard 
 
 V. Gregory 
 
 Page 
 
 216 
 
 252 
 
 197 
 
 250 
 
 278 
 
 15 
 
 157 
 
 ii. 139 
 
 ii. 188 
 
 73 
 
 ii. 139 
 
 324, n. 
 
 64 
 
 Richards and Besant 
 
 and Cock 
 
 and Compton 
 
 and Howell 
 
 V. Porter 
 
 Richardson v. Mitchell 
 and Turner 
 
 V. Lord of the Manor of 
 
 Hendon 450 
 
 V. Holland ii. 106 
 
 V. HoUier 515 
 
 V. Hungerford Market 
 
 Company 256 
 V. Inhabitants of Horn- 
 don 79 
 
 V. Inhabitants of Had- 
 
 denham ii. 106 
 
 V. Inhabitants of Lain- 
 
 don 132 
 
 V. Lamb 616 
 
 V.Miller 157 
 
 V. Osbourne 158 
 
 V. Inhabitants of Scam- 
 
 monden 1 32 
 
 Rex V. Smith 512, n. 614, 515. 
 
 A pp. No. 17 
 
 Rex V. Inhabitants 
 
 don 
 
 V. Snow 
 
 — ■ — V. St. John 
 
 V. Varlo 
 
 V. Winstanley 
 
 V. Withers 
 
 Paoe 
 136 
 159 
 
 37 
 ii. 95. 97 
 
 90 
 303 
 
 52 
 225 
 
 n. 
 
 of Stan- 
 
 79 
 
 171, n. 
 
 515 
 
 157 
 
 15 
 
 ii. 299 
 
 63 
 
 85 
 
 216 233 
 
 129 
 
 109.123,124 
 
 Rhodes and Ibbetson 9 ; ii. 301 
 
 and Selsey (Lord) ii. 112 
 
 Rice and Bridger 207 
 
 Rich V. Jackson 143. 145. 167 
 
 • V. Rich (2 Ch. Ca.) 521 
 
 V. Rich (Cro. Ehz.) ii. 102 
 
 Richards v. Barton 238. 447. 461. 
 
 541 
 
 Reynolds v. Blake 
 
 and Jenkins 
 
 V. Nelson 
 
 V. Waring 
 
 ■ ex parte ii. 
 
 and Warren 
 
 Richmond and City of London 267 
 Ricks and Dyke ii. 48 
 
 Riddle v. Emerson ii. 132 
 
 and Gregson 441. 443 
 
 Rider v. Kidder ii. 136. 139 
 Ridgard and Bonney ii. 53, 54, 56 
 Ridler v. Ridler ii. 108 
 Rigby and Champion ii. 112. 126 
 v. Macnamara (6 Ves. 
 
 jun. 117) 70 
 V. Macnamara (6 Yes. 
 
 jun. 466) ib. 
 v. Macnamara (6 Ves. 
 
 jun. 515) 
 
 Right v. Bawden 
 v. Beard 
 
 n. 
 
 Ripley v. Waterworth 
 
 Risney v. Selby 
 Rist v. Hobson 
 Rivers v. Steele 
 Roach and Rows 
 v. Wadham 
 
 4,5. 
 
 67 
 
 141 
 
 249 
 
 187 
 
 332. 560 
 
 87 
 
 ii. 282 
 
 ii. 278 
 
 i. 79, 80 
 
 . 25. 197 
 
 70 
 
 n. 
 
 Roahde and Sharpe ii 
 Roadhead and Headley 
 Roadknight and Newbold 183 
 
 Roake V. Kidd 340. 355 
 
 Rob V. Butterwick 165 
 
 Roberdeau and Hanson 49. 61 
 Roberts and Evans 84 
 
 and Keane ii. 64 
 
 V. Massey 60, 61 ; ii. 2 
 
 ■ V. Wyatt 40. 449 
 
 Robertson and M'Dowgate ii. 278 
 
 Robins and Maberly 
 and Sherwood 
 
 Robinson v. Anderton 
 
 and Bridges 
 
 V. ElHot 
 
 and Farmer 
 
 Robinson v. Harrington 
 Robinson and Lill 
 
 £md Luxton 
 
 V. Page 
 
 and Stanley 
 
 243 
 
 43. 273 
 
 563, n. 
 
 ii. 13 
 
 329 
 
 105 
 
 ii. 193 
 
 ii. 27 
 
 240 
 
 139 
 
 203
 
 INDEX TO CASES. 
 
 V. Popham 
 V. Reade 
 V. Rovvlston 
 
 liv 
 
 Page 
 
 Robotham and HugVies 461 
 
 Robson V. Brotvn 174 
 
 Robson V. Kemp ii. 299 
 
 Roche V. O'Brien 265 ; ii. 126 
 Rochfort and Baldwin 274 
 
 Rodney (Lady) and Lord Ox- 
 ford 188 
 Roe V. Lowe 195 
 
 V. Mitton ii. 163. 165. 168 
 
 ii. 138 
 470. 4S6 
 392 
 10. 297. 
 ; ii. 2. 20. 28 
 81 
 298 
 ii. 14 
 41.171. 439; 
 ii. 74 
 262 
 164, 165, n. 
 165, n. 
 450 
 429 
 223 ; ii. 10 
 ii. 309 
 ii. 34 
 296; 
 ii. 23. 32 
 Roll V. Osborne ii. 77, n. 
 
 Romilly (Sir Samuel) v. James 
 
 342 
 Rondeau v. Wyatt 105. 113 
 
 Root and Pope 260. 282 
 
 Rorke v. Webb ii. Ill 
 
 Roper V. Coombes 333. 432 
 
 Rosamond v. Lord Melsington 166 
 Rose V. Calland 295. 340 
 
 V. Cunyghame 90. 95. 176. 
 
 179. 189 
 
 and Priddy ii. 265 
 
 Rosewell and Smith ii. 261 
 
 Rosher and Headon 267. 269 
 
 Ross and Lord Pengall, or 
 
 Fingal 121 
 
 Ross V. Ross 194 
 
 Rosswell V. Vaughan 332. 560 
 Rotherham and Radnor, or 
 
 Bodmin 517, 518, 519; ii. 306 
 Rothschild and Doloret 202. 429 
 Round and Cason ii. 307 
 and Oldfield 26. 307. 313 
 
 Roebuck and Calcrafl 
 300; 
 
 and Hoby 
 
 RofFey v. Shallcross 
 Rogers V. Boehm 
 and Bowles 
 
 and Bruce 
 
 Rogers v. Earl 
 Rogers and Farmer 
 
 and Fishe 
 
 and Newman 
 
 and Paton 219 
 
 V. Seale 
 
 V. Skillicorne 
 
 Rokebtj {Lord) and Binks 
 
 Page 
 
 Round and Ortread 199, 200 
 
 Routledge and Doe ii. 157. 170 
 
 V. Grant 43. 89 
 
 Rowe and Atkins ii. 133 
 
 and Jackson (4 Russ. 614.) 
 
 ii. 304 
 and Jackson (2 Sim. & . 
 
 Stu. 472.) ii. 308 
 
 V. Roach ii. 278 
 
 V. Teed 113 
 
 Rowlston and Roe 392 
 
 Rowley and Cornish 422. 431 
 
 Rowntree v. Jacob ii. 62, n. 
 
 Royal E. A. Office and Henkle, 
 
 158. 167 
 
 and Morse 265; ii. 126 
 
 Royle and Clarke ii. 68. 66 
 
 Royse and Hamilton ii. 280. 294 
 Rucker v. Cammeyer 104, 105 
 Rudd and Poole 50 
 
 Rndele and Cass 277 
 
 Ruffin and Hodder 71 
 
 and Nodder 67 
 
 Rushley and Houghton ii. 198 
 
 Rushworth's case 320 
 
 Russel and Bellew ii. 112 
 
 Russell and Stokes ii. 78 
 
 and Western 85. 93. 103. 
 
 189, n. 259. 301 
 
 and Webb 461 ; ii. 78 
 
 Rutherford and Loyes 309 
 
 Rutland's (Countess of) case 146 
 Rutland (Duchess of) and 
 
 Wakeman 63. 370. 536, 537 
 Ryall V. Ryall ii. 136. 138. 149 
 Ryde and Jones 554 
 
 Ryder v. Gower 69 
 
 V. Wager 183, 184 
 
 Ryle V. Brown 265 
 
 S. 
 
 Sabbarton v. Sabbarton ii. 335, n. 
 Sacheverell and Davie ii. 83 
 
 Sadler and Bennett 211 
 
 Sadlier and Bullock ii. 157. 306 
 Saint Alban's (Duke of) v. 
 
 Shore 215 240. 245. 248 
 
 Saint Cross (Master of) v. 
 
 Lord Howard de Walden 325 
 
 Saint John and Biddulph ii. 222. 
 
 297. 301
 
 INDEX TO CASES. 
 
 Iv 
 
 Page 
 
 ii. 335 
 
 ii. 168 
 
 515 
 
 175 
 
 91 
 
 Saint John v. Champneys 
 
 (Lord) V. Lady Saint 
 
 John 
 
 and Rex 
 
 V. Bishop of VVinton 
 
 Saint Paul and Brodie 
 Saint Paul's (Dean and Chap- 
 ter of) V. Dr. Betesworlh212 
 Sale V. Cromptop ii. 194 
 
 Sales and Goodright 521 
 
 Salisbury and Gorman 146. 148-9 
 Salisbury (Ld.) v. Wilkenson ii. 14 
 Saltoun (Lady) v. Philips 335 
 
 Salvvay and Foot 135 
 
 Samborne and Oldin ii. 116 
 
 Sanders v. Deligne ii. 260 
 
 Sanderson v. Walker ii. 115 
 
 Sandford and Keech ii. 1 14 
 
 andWillet 179, n. 
 
 Sands and Attorney-General 463. 
 513. 515. 521. 525. 528 
 Sandys and Montesquieu ii. 121 
 Sangon v. Williams 194 
 
 Sarrell and Colman ii. 378 
 
 Savage v. Carroll 117. 129, 130. 
 180. 189 ; ii. 149 
 
 V. Foster iL 262 
 
 V. Humble ii. 52 
 
 and Jordan 359, 362 
 
 Savage v. Taylor 184, n. ; ii. 266 
 Savage v. Whilbread 534 
 
 Savilev. Savile 71. 257 
 
 Saville and Goodtitle 187, n. 265 
 Saunders v. Lord Annesley 254. 
 298. n. 397 
 Saunders r. Burroughs ii. 114 
 Saunders v. Dehew ii. 259 
 
 and Jerrard ii. 259, 260, 307. 
 
 309 
 
 v. Musgrave 31 
 
 V. Wakefield 85 
 
 Saundersonv. Jackson 93. 100, 101 
 Saiobridge and Bret 526 ; A pp. 
 No. 19 
 Sawbridge and Wanby 110 
 
 Sawkins and Jordan 145 
 
 Say v. Barwick 203 
 
 Say and Seal's (Lord) case 
 
 ii. 298, 299 
 Sayer and Doe 249 
 
 Sayle v. Freeland 194 
 
 Scammonden (Inhabitants of) 
 
 and Rex 132 
 
 Page 
 
 Scarborough (Earl of) and 
 
 Worsley ii. 280, 281. 283, 
 
 284 
 
 Schneider v. Heath 34. 315 
 
 >- v. Norris 100 
 
 Schofield and Bayly ii. 183 
 
 and Kenworthy 93, 94. 106. 
 
 109 
 Scholes and Blackburn 47 
 Scholey and Metcalf 541 
 and Scott ib. 
 
 Schulenburgh and Spenceley 
 
 ii. 300 
 Scorbrough v. Burton ii. 24 
 
 Scoit and Attorney- General 517, n. 
 
 Scott v. Bell 
 
 and Doe 
 
 v. Fenhoulett 
 
 V. Hanson 
 
 u. 167 
 
 470. 488 
 
 523 
 
 308 
 
 436 
 
 211 
 
 ii. 280 
 
 66, 67 
 
 541 
 
 and Stapylton, 221. 295. 341 
 
 and Hoggart 
 
 v. LangstafTe 
 
 and Mountford 
 
 v. Nisbitt 
 
 v. Scholey 
 
 Tyler 
 
 Scrafton v. Quincey 
 Scroope v. Scroope 
 Scrughan and Tardiffe 
 
 ii. 53 
 
 ii. 211 
 
 ii. 145 
 
 ii. 68. 61, 
 
 62. 66 
 
 79 
 
 ii. 103 
 
 41 
 
 Sculthorpe and Phipps 
 Seabourne v. Powell 
 Seaforth (Lord), ex parte 
 Seagoodv. Meale 90. 95. 121. 124 
 Scale and Rogers ii. 309 
 
 Seaman v. Yawdrey 318. 351. 354 
 Searles and Newstead ii. 161. 278 
 Secrelan and Harrington 224 
 
 Seddon v. Senate ii. 83. 93 
 
 Sedgwick v. Hargrave 199 
 
 and Hilhcox, 511 ; ii. 259. 
 
 286. 289, 290 
 Selby v. Chute ii. 84 
 
 and Lisney, or Risney 4, 5. 
 
 332. 560 
 Selby V. Selby 102 ; ii. 73 
 
 Selkrig v. Davies ii. 130, n. 
 
 Selleck and Jennings ii. 260 
 
 Selsey (Lord) v. Rhodes ii. 112 
 Senate and Seddon, ii. 83. 93 
 
 Senhouse v. Christian ii. 129 
 
 v. Earle ii. 171. 297 
 
 Sevier v. Greenway 255
 
 Ivi 
 
 INDEX TO CASES. 
 
 Page 
 
 Serjeant and Parker ii. 161 
 
 Serra and Bascoi ii. 295 
 
 Seton V. Slade 85. 173. 246. 426 
 430. 434. 443 
 Seiva7'd, or Stexoart and Den- 
 ton 116.231 
 Seward v. Willock 247, 248. 432 
 Sewell and Coussmaker 356 ; 
 App. No. 14 
 Sewell V. Johnson , 71 
 
 and Legate 194 
 
 Seymour v. Nosworth ii. 305 
 
 V. Rapier 154 
 
 Shafto and Earl of Radnor 187, n. 
 
 190 
 Shales V. Shales ii. 141, 142. 144 
 Shallcross and RofFey 298 
 
 Shalmer and Spalding ii. 32, 33 
 Shannon v. Bradstreet 130. 201 
 Shapland v. Smith 340. 377 
 
 Sharp V. Ardcock 340 
 
 Sharp V. Page 449 
 
 Sharpe and Clay 358 ; App. 
 
 No. 15 
 Sharpe v. Roahde ii. 25. 197 
 
 Shaw and Dickenson ii. 141 
 
 V. Jakeman 164. 242 
 
 and Morgan 223. 226 
 
 and Williams 23a 
 
 V." Wright 348 
 
 Shearwood and Hare 159. 166 
 Shee and Hibbert 287 
 
 Sheffield v. Lord Mulgrave 340. 
 
 433 
 Shelburne (Countess) v. Earl 
 
 of Inchiquin 156. 159. 167, 
 168 
 Sheldon v. Cox ii. 222. 278 
 
 Shelley's case 375 
 
 Shelly V. Nash 272 
 
 Shelling v. Farmer 155 
 
 Shelton v. Livins 32 
 
 Shenton v. Jordan 215 
 
 Shepherd v. Kain 316 
 
 and Knollys 186 
 
 Sheppard v. Gosnold 167 
 
 Sherard and Floyer 262 
 
 Shergold and Poole 278. 293 
 
 and Reid ii. 262 
 
 Sheriffe and Jones 1 68 
 
 Sherly v. Fagg ii. 260 
 
 Sherman and Cockes ii. 274 
 
 Sherwin and Earl of Bath 
 Sherwood v. Robins 
 Shills and Grant 
 Shine v. Gough ii. 
 
 Shipman v. Thompson 
 Shippey v. Derrison 
 Shirley v. Davies 
 
 and Horniblow 
 
 and Nott . 
 
 and Skipwith 
 
 V. Stratton 
 
 V. Watts 
 
 Shore and Duke of St. Alban's 
 
 215. 240. 245. 248 
 
 205. 
 
 Page 
 
 213 
 
 43. 273 
 
 ii. 64 
 
 259. 267 
 
 451 
 
 93. 102 
 
 308 
 
 289. 346 
 
 178 
 
 532 
 
 257. 317 
 
 ii. 199 
 
 — and Bateman 
 
 — V. Collett 
 
 — and James 
 
 130, n. 
 532 
 293 
 319 
 
 ii. 191 
 
 257 
 
 39 
 
 Shovel (Sir C.) v. Bogan 
 
 Shoyer and Gould 
 
 Shrimpton and Conway 
 
 Shum and Taylor 
 
 Shuttleworth and Curling 243; ii. 14 
 
 Sibson and Fletcher 
 
 Siddon v. Charnells 
 
 Sidley and Fletcher 
 
 Sikes V. Lister 
 
 Siicock and Snell 
 
 Silk and Hunt 
 
 Sime and Graham 
 
 Simmons v. Cornelius 
 
 and Farebrother 
 
 V. Hunt 
 
 Simon v. Motivos 
 
 H. 261 
 ii. 260 
 ii. 147 
 172. 192 
 397 
 233 
 450 
 118. 131 
 107 
 554 
 49. 105 
 228 
 355 
 ii. 60 
 369 
 ii. 53 
 367. 428 
 261. 428 
 Sims and Wiltshire 46 
 
 Singleton and Darley 262 
 
 Skelton and Smith ii. 4 
 
 Skelton's case 223 
 
 Skett V. Whitmore ii. 136 
 
 Skillicorne and Rogers ii. 34 
 
 Skinner and Burrough 47 
 
 V. Stacy 262 
 
 Skipwith V. Shirley 632 
 
 Slade and Jeudwine 233- 
 
 and Seton 86. 173. 246. 426. 
 
 430. 436. 443 
 
 Simons and Cutler 
 Simpson and Beevor 
 
 and Cowell 
 
 V. Gutteridge 
 
 and Hill 
 
 and Pope 
 
 and Whorwood
 
 INDEX TO CASES. 
 
 Ivii 
 
 Slade and AVhcatley 
 Slaughtt r and Patterson 
 Sleap and Lady Piatt 
 Slee and Croft 
 Sloane v. Cadosan ii. 
 
 Paac 
 
 301 
 
 ii. 308 
 
 461 
 
 ii. 375 
 
 168. App. 
 
 No. 26 
 
 Sloman v. Heme ii. 299 
 
 Slop er V. Fish 340; ii. 196 
 
 Small V. Atsvood 4. 205. 258. 261. 
 
 565; ii. 126 
 
 V. Jefierys 
 
 V. Marwood 
 
 Sniallcomb v. Buckingham 
 
 Smallwood and Walker ii. 38 
 Smart v. Prujean 
 
 and Tanner 
 
 Smartle v. Penhallow ii 
 
 Smith V. Baker 
 
 and Beatniff 
 
 V. Burnam 
 
 V. Lord Camelford 
 
 V. Clarke 
 
 V. Compton 
 
 and Cooper 
 
 and Deacon 
 
 n. 128 
 ii. 50 
 ii. 199 
 281 
 182 
 94 
 141 
 135 
 222 
 434 
 ii. 135 
 26, 27 
 99. 104 
 94. 101 
 ii. 151, 152, 
 153 
 181 
 250 
 5 
 
 11. 
 ii. 
 
 426. 
 
 11. 
 90. 
 
 . V. Dearmer 
 
 and Doe 
 
 and De Graves 
 
 V. Sir Thomas Dolman 434 
 
 V.Garland ii. 175, 176, 
 
 177 
 
 324 
 
 171. 189 
 
 246 ; ii. 8 
 
 ii. 32. 45 
 
 341 
 
 430 ; ii. 293 
 
 172. 192. 370; 
 
 ii. 20. 57 
 
 Smith and Hincksman 267 
 
 and Gibson 
 
 and Green 
 
 and Grosock 
 
 V. Guy on 
 
 — ^ — and Hartley 
 Smith V. Hall 
 V. Uihbard 
 
 V. Jackson 
 V. King 
 
 Smith and the King 
 
 514, 515. 
 
 Smith and Kirkman 
 
 Smith V. 
 Smith V, 
 
 Leigh 
 Lloyd 
 
 V. Low 
 
 — and Marlow 
 
 — and Martin 
 Vol. I. 
 
 •226 
 
 394. 511 
 
 511, 512, n. 
 
 App. No. 17 
 
 194 
 
 ii. 27 
 
 49. 226, 227. 
 
 296 
 
 ii. 290 
 
 340. 348 
 
 240. 247 
 
 *G 
 
 Smith V. Nelson 
 
 and Newall 
 
 V. Pierce 
 
 Page 
 
 64 
 
 ii. 26 
 
 454 
 
 Smith ( Treasurer of the JV. I. 
 D. C.) V. the City of London 
 
 ii. 134 
 Smith V. Read ii. 244 
 
 V. Kosewell ii. 261 
 
 and Shapland .340. 377 
 
 V. Skelton ii. 4 
 
 V. Smith 363 
 
 V. Spooner ii. 278 
 
 V. Surman 82. 89 
 
 (Lady) and Symms 451 
 
 and Thomlinson ii. 56. 267 
 
 V. Tolcher 296 
 
 V. Turner 1 17 
 
 and Vol! 119. 131 
 
 V. Watson 95 
 
 (Sir William) v. Wheeler 
 
 ii. 51 
 
 V. Wilkinson ii. 135 
 
 V. Woodhouse 245 
 
 and Yems ii. 331 
 
 Snag's case ii. 306 
 
 Snaith and Brooks 67 
 
 and Hogg 133 
 
 Sneil and Silcock 397 
 
 Snelling v. Squint ii. 285 
 
 Snow and Rex 171, n. 
 
 Sollet and Dale 234 
 
 Solomon v. Turner 170 
 
 Soltan V. Cooke 360 
 
 Some V. Taylor 326 
 
 Somerset (Duke of) and Gour- 
 
 lay 275 
 
 Sorrell v. Carpenter ii. 281. 283, 
 
 284 
 
 and Williams ii. 220 
 
 Southcote and Harrison ii. 59. 61. 
 
 244 
 
 and Sweet ii. 274 
 
 Southgate and Chaplain ii. 84 
 
 Southhouse and Brown ii. 14 
 
 S. S. Company v. D'Oliff 160 
 Sowarsby v. Lacy ii. 34 
 
 Sowden v. Sowden ii. 151 
 
 Sowerby v. Brooks ii. 286 
 
 Spaight and. O'Connor 145 
 
 Spalding and Shalmer ii. 32, 33 
 ; Sparrow v. Hardcastlc 178, n. 
 
 Spcldt v. JjeclHncre ii- 264
 
 Iviii 
 
 INDEX TO CASES. 
 
 Page! 
 
 Spenceley v. Schulonburgh ii. 300 
 
 Spencer and Fane 
 
 V. Marriott 
 
 V. Venacre 
 
 Spencer's case 
 Sperling v. Trevor 
 Spicer v. Middleton 
 Spiller V. Spiller 
 
 V. Westlake 
 
 Spillet and Lloyd 
 Spittle V. Lavender 
 Spooner and Smith 
 Spottiswoode and Capper 
 Sprateley v. Griffiths 
 Spratt V. Jeffery 
 
 V. Hobhouse ii. 
 
 Spurrier V. Elderton 
 
 V. Fitzgerald 
 
 V. Hancock 
 
 n. 
 
 338 
 ii. 85 
 185 
 ii. 78 
 357 
 173 
 217 
 246 
 ii. 135, 136 
 63 
 ii. 278 
 ii. 61 
 262 
 335, 336 
 188. 190 
 47 ; ii. 16 
 114 
 279. 367. 
 428, 429 
 ii. 19 
 ii. 285 
 258 
 233. 240 
 358 
 
 V. Mayoss 
 
 Squint and Snelling 
 Squire v. Baker 
 
 V. Tod 
 
 Stabback v. Leatt 
 Stackhouse v. Barnstone 395 
 
 Stace and Blackburne 226 
 
 Stace and Doe 492 
 
 Stacpole and Gore 68 
 
 Stacy and Skinner 252 
 
 Stadd V. Cason ii. 301 
 
 Stadt V. Lill 85 
 
 Strainbridge and Jolland 550 ; 
 
 ii. 222 277. 301 
 Staines v. Morris 39. 450 ; ii. 25 
 
 Stamford and Best 
 
 (Lord) and Pickering 
 
 Stammers v. Dixon 
 Standen and Standen ii 
 
 Standley v. Hemmington 
 Standon (Inhabitants of) and 
 Rex 
 
 622 
 362 
 158 
 376 
 247 
 
 79 
 ii. 272 
 
 Stanford and Walton 
 Stangroom and Marquis of 
 
 Townsend 136. 138. 140. 
 
 169. 319 
 
 Stanhope's (Lord) case 295 
 
 Stanhope and Griffin ii. 166. 179 
 
 v. Earl Verney 467 ; ii. 75. 
 
 265 
 Staniland and Parker 82, 83 
 
 Stanley and Jones ii. 274 
 
 Slcmhij V. Lee 
 Stanley v. Robinson 
 Stansfield v. Johnson 
 Stanton and Lavender i 
 
 Stapely and Butcher 116 ; ii 
 Staple and Doe 470. 483 
 
 Stapylton v. Scott 221. 295 
 Statham and Joynes 
 
 and Gouch 
 
 Stauglhnn v. Hawley 
 Sleadman v. Lord Galloivay 
 Stedman and Gough ii 
 
 Steed V. Whitaker ii 
 
 Steel and Wray ii 
 
 Steele v. Philips 
 Steele and Rivers ii 
 
 Steere (or Stare) and Toul 
 
 min ii 
 
 Stent V. Bally 
 Stephens v. Bateman 
 Ste23hens v. Brydges 
 Stephens and Copeland 
 
 v. Olive 
 
 v. Stephens 
 
 V. Truman 
 
 and Vernon 
 
 Page 
 
 1. 355, n. 
 203 
 
 106. 109 
 ii. 34 
 277 
 485 
 341 
 137 
 362 
 198 
 440 
 103 
 278 
 140 
 644 
 282 
 
 Stephenson v. Esdaile 
 291 
 Stephenson and Morris 
 Sterum and Colclough 
 Stevens v. Adamson 
 v. Baily 
 
 268. 279 
 277, 278 
 262 
 463 
 62 
 ii. 168 
 App. n. 
 ii. 378 
 51 
 219,220. 
 434 ; ii. 10 
 198 
 58 
 310 
 191 
 4 
 230. 370 
 ii. 159 
 ii. 88. 98 
 294, n. 
 296 
 397 
 113 
 Steiuard or Seward and Den- 
 
 • ton 116. 231 
 
 Slibbert and Taylor ii. 269. 271. 
 
 293 
 Stileman v. Ashdown ii. 145. 166 
 Stile and Taylor ii. 159 
 
 Stiles v. Covvper 131 
 
 and How 464 
 
 Stilvvell V. Wilkins 262 
 
 Stokes and Hamil ii. 265 
 
 V. Moore 91. 100. 102 
 
 and Pentland ii. 222- 
 
 and Dobell 
 
 and Guppy 
 
 Stevenson and Hayvvard 
 
 and Hesse 162 ; 
 
 Stewart v. AUiston 42 
 
 and Bowles 
 
 v. Careless
 
 INDEX TO CASES. 
 
 lix 
 
 Page 
 
 Stokes V. Russell ii. 78 
 
 Stonnaid and Burling ii. 52 
 
 Stone and Sir George Binion 
 
 ii. 143 
 
 and Gwillim 231 
 
 and Whiting 79 
 
 Story V. Lord Windsor ii. 274. 
 304, 305, 306 
 Stourton (Lord) v. Sir Thomas 
 
 Meers 433 
 
 (Lord) and Sir T. Meers ib. 
 
 Stowe's case 324, n. 
 
 StradUng and Wills 116, 117 
 
 Strange v. Price 340 
 
 Stratford v. Bosvvorth 89 
 
 V.Powell 116 
 
 V. Twyman ii. Ill 
 
 Strathmore (Lady) y. Bowes 
 
 (Term. Rep.) 181 
 
 (Lady) v. Bowes (Ves. 
 
 519 
 
 ii. 196 
 
 362 
 
 205. 257. 
 
 318 
 
 241 
 
 61 
 
 163. 177. 
 
 260 
 
 Strode and Casaniajor 65. 344, 
 
 345 
 155 
 ii. 163 
 531 
 57 
 261 
 ii. 102 
 257 
 203. n. 
 
 jun.) 
 
 (Earl of) and Davis 
 
 Stratton and Couch 
 and Shirley 
 
 Street v. Brown 
 Stretton v. Stretton 
 Stringer and While ii. 
 
 V. Lady Falkland 
 
 and Osgood 
 
 Stuart, ex parte 
 Stubbs and Mathews 
 and Wall 
 
 162 
 
 Studly and Fielder 
 Stukeley and Keen 
 Stut and Gascoigne 
 Style (or Stiles) v. Martin ii. 281, 
 
 282 
 
 Suffolk and Harding 152 
 
 Surman and Smith 82. 89 
 
 Surry and Klinitz 49 
 
 Sutton and Banks 517 
 
 and Blore 91. 101.231 
 
 V. Chetwynd ii. 176 
 
 and Hasker 355 
 
 and Kenyon 178 
 
 Swaine and Zouch ii. 104 
 
 Swan V. Cox 246 
 
 Swan's case ii. 87 
 
 Page 
 
 Swanborough v. Coventry 41 
 Svvannock v. Lifford 517. 519 
 
 Sweet V. Southcote ii. 274 
 
 Swift V. Davis ii. 141 
 
 and Garnons 242 
 
 and Lightburne 58 
 
 and Lowe 130 
 
 Swinnertonand Butler ii.,85. 87. 89 
 Swymmer and Goodright 350 
 
 Sybourn and Doe 470. 485 
 
 Sylvester and Dyke 351 
 
 Symmons and Mackreth ii. 57, 58. 
 61. 65, 66. 74. 76 
 Symms v. Lady Smith 445 
 
 Symonds v. Ball 109 
 
 Symondson V. Tweed 110. 128 
 
 T. 
 
 Tadman and Ferguson ii. 23 
 
 Tait V. Lord Northwick 70 
 
 Talbot and Duke of Chandos 38 
 
 and Lindsay ii. 299 
 
 Tankard v. W^ade 470 
 
 Tankerville (Lord) and Bennett 
 
 185 
 Tanner and Chapman 
 
 V. Florence 
 
 and Meadows 
 
 and Smart 
 
 Tapp V. Lee 5 
 
 Tappenden v. Randall 
 Tarback v. Marbury 
 Tardiffe v. Scrughan 
 
 ii. 57 
 
 ii. 293 
 
 29 
 
 94 
 
 ii. 263, n. 
 
 238 
 
 ii. 179 
 
 i. 58. 61, 
 
 62. 66 
 
 Tasburgh and Lord Clermont 205 
 Tatem v. Chaplin ii. 78 
 
 Taunton and Adams ii. 61 
 
 Tayler v. Waters 79 
 
 Taylor v. Alston ii. 139 
 
 and Attorney-General 20 
 
 v. Baker (1 Dan. 71) ii. 290 
 
 v. Baker (5 Price 306) 
 
 ii. 292 
 
 V. Beech 116 
 
 v. Debar ii. 103 
 
 and Fenner ii. 168 
 
 and Freeman 641, n. 
 
 and Griffin 198 
 
 v. Hawkins ii. 66 
 
 v. lloorde 393 
 
 and Lord Portmorc 265, 266
 
 Ix 
 
 INDEX TO CASES. 
 
 Page 
 
 Taylor and Savage 184, n.; ii. 266 
 Taylor v. Shum • 39 
 
 and Some 326 
 
 V. Stibbeit ii. 269. 271. 293 
 
 ii. 159 
 
 141, 1 t2 
 
 ii. 263 
 
 93 
 
 228 
 
 ii. 263 
 
 326 
 
 113 
 
 182 
 
 ii. 80 
 
 Taylor v. Stile 
 Taylor v. Taylor 
 
 V. Wheeler 
 
 Tawney v. Crother 
 Teal and Bramby 
 Teasdale v. Teasdale 
 Tedcastle and Morgan 
 Teed and Rowe 
 Telford and Johnson 
 Tempest's case 
 Templar and Evelyn ii. 159, 160, 
 161. 187 
 — — and Hodges ii. 195 
 
 Temple v. Brown 333. 447, n 
 
 Templer v. Maclachlan 
 Tenant and Hearne 
 Tenant v. Jackson 
 Tendring v.' London 
 Terrel and Clarke 
 Terrie's case 
 
 Terry or Ferry v. Williams 
 Tetley v. Tetley i 
 
 Tewksbury (Bailiffs, &c. of) 
 
 V. Bricknell 
 Thanet (Earl of) and Mihvard 
 
 425. 437 
 Thelluson v. Woodford 
 Thewer and Peacock 
 Thicknesse v. Vernon 
 Thistlewood, ex parte 
 Thomas v. Cook 
 Thomas V. Davis 155. 163. 
 
 652 
 
 423 
 32, n. 
 
 207 
 87 
 
 464 
 
 240 
 i. 330 
 
 157 
 
 Thomas and Jones 
 
 V. Pledwell 
 
 V. Powell 
 
 V. Thomas 
 
 and W^ynne 
 
 Thomlinson v. Smith ii. J 
 Thompson and O'Reilly 
 
 V. Towne 
 
 Thompson, or Bonham and 
 
 Williams 440 
 
 Thompson and Shipman 451 
 
 and Collett 240 
 
 Thompson v. Miles 240, 241. 287 
 
 V. Wilson . 79 
 
 Thorn v. Newman 460 
 
 181 
 
 ii. 182 
 
 ii. 127 
 
 262. 266 
 
 79 
 
 170. 
 
 256 
 
 307 
 
 196 
 
 663 
 
 152 
 
 451 
 
 267 
 
 lis 
 
 173 
 
 Page 
 
 Thnrne and Bullock ii. 180 
 
 Thornhili and Fleaureau 208. 335. 
 238 ; ii. 10 
 Thornhili v. Thornhili 70 
 
 Thorp V. Freer ii. 23. 35 
 
 Thring v. Edgar ii. 307 
 
 Thruxton v. Attorney-General 
 
 525. 527, 528 
 Thwing and Gascoigne ii. 1 35. 
 
 137 
 Thynn v. Thynn ii. 132 
 
 Tickner v- Tickner 178 
 
 Tiffin V. Tiffin 521, 522. 526, 527 
 
 Till and Coslake 
 Tilsley, ex parte 
 Tinney v. Tinney 
 Tipping V. Gartside 
 Titiis and Parkins 
 Tod and Squire 
 Todd and Burton 
 
 429 
 71 
 133. 362 
 63 
 450 
 233. 240 
 ii. 10 ; A pp. 
 No. 21 
 ii. 10. App. No. 21 
 231. 297 
 
 Todd V. Gee 
 
 Todd V. Gee 
 
 Tolcher and Smith 
 
 Toilet and Fletcher 
 
 Tollett V. Tollett 
 
 Tolson V. Kaye 
 
 Tombs and Cooke 84. 93 
 
 Tomkies and Lloyd 
 Tomkins, ex parte 73 ; 
 
 11. 
 
 296 
 194 
 158, n. 
 390 
 96. 97. 
 115 
 ii. 83 
 App. No. 
 12 
 293 
 248. 287 
 116 
 20,21 
 ii. 67 
 ii. 104 
 46 
 ii. 268. 279 
 ii. 265. 274 
 Towgood and Anson 62 
 
 Towiie and Thompson 173 
 
 Townley v. Bed well 187 ; ii. 10 
 Townsend v. Champernown 
 
 447. 609 
 
 (Lord), and Gardner 
 
 ii. 161 
 To%vnsend {Marquis of) v. 
 
 Bishop of JSTorivich 605 
 
 Townsend v. Townsend (Bro. 
 
 C. C.) 394 
 
 Tomkins v. W^hite 
 Tomlin and Hearne 
 Toole V. Mediicolt 
 Topham and Capp 
 
 V. Cunstantine 
 
 Toulmin and Hammond 
 
 and Langstroth 
 
 V. Steere 
 
 Tourviile v. Naish
 
 INDEX To CASES. 
 
 ixi 
 
 Page I 
 
 Townsheud (Lord) v. Granger 37 \ 
 
 and Mackintosh ii. 130, n. j 
 
 and MuUins 58 i 
 
 (Marquis of) v. Stan- | 
 
 groom 136. 138. 140. j 
 
 159. 319 
 
 228; 
 ii. 8 I 
 395 I 
 ii. 159 : 
 
 ii. 178 i 
 
 Towmhend v. Townshend 
 
 Tracey and Jenner 
 
 and Langlon 
 
 Trapaud v. Cormick 
 Trappes and Tunstall 642 ; ii. 223. 
 
 278 
 
 Trecothick and Coles 87. 101. 
 
 104. 106. 109. 123. 206. 
 
 259. 263. 282. 285 ; 
 
 ii. 110. 117 
 
 Tredennick and Dunbar ii. 126. 
 
 269 
 ii. 8 
 ii. 101 
 340 
 3,4 
 325 
 178, n. 
 91 
 ii. 305 
 215 
 357 
 ii. 70 
 
 70 
 
 Trefusis v. Clinton 
 Trenchard v. Hoskins 
 Trent v. Manning 
 Tresham and Ekins 
 Treswallen v. Penhules 
 Trevalion and Putbury 
 Trevalyan and Gordon 
 Trevanion v. Mosse 
 Trevor and Hopson 
 
 and Sperling 
 
 Trimmer v. Bayne 
 
 Trimuel's (Commissioner) case 
 
 174 
 Tritton and Crofts 251 
 
 Trower v. Newcombe 4. 42. 309 
 Truman and Stephens ii. 378 
 
 Tubbin and Preston ii. 279. 281 
 Tuchin and Bartlett 432 
 
 Tucker and Dare 38. 529 
 
 Tull V. Parlett 132 
 
 Tunbridge and Ramsbottom 98 
 Tunstall v. Trappes 542 ; ii. 223. 
 
 278 
 Turner, ex parte ii. 33 
 
 V. Back ii. 261 
 
 Turner v. Beaurain 239. 288, 289 
 
 6 
 192. 349 
 
 379 
 
 241, n. 
 
 52 
 
 170 
 
 117 
 
 Page 
 
 Turnor and Coster 434 
 
 Turnour and Morison 101. 103 
 
 Turton and Benson ii. 265 
 
 Tweddell v. Tweddell 396 
 
 Tweed and Symondson 110. 128 
 Twigg V. Fifield 62 ; ii. 8 
 
 Twining v. Morris 24. 30. 205. 
 261. 298, 299 
 Twistleton v. Griffith 264. 266 
 Twyford v. Warcup 319 
 
 Twyman and Stratford ii. Ill 
 
 Tyler v. Beversham 324 
 
 and Scott ii. 53 
 
 Tyndale v. Warre 70 
 
 Tynman and Cooper ii. 265 
 
 Tyrconnel (Earl of) v. Duke 
 
 of Ancaster 36 
 
 Tyrer v. Ardngsiall, or Bailey 445 
 Tyrer and Onions 183 
 
 U. 
 
 Ulrich V. Diichfield 153 
 
 Underhil v. Horwood 262 
 
 Underwood v. Lord Courtown 
 
 ii. 222. 274 
 V. Hithcox 259 
 
 Turner v. Harvey 
 — — and King 
 
 and Marwood 
 
 and Nash 
 
 V. Richardson 
 
 and Soloman 
 
 ■ and Smith 
 
 Upcot and Coleman 85. 87, 88 
 
 Upton V. Basset ii. 157 
 
 and Clark 54 
 
 V. Lord Ferrers 66. 69 
 
 and Watson 226 
 
 Urmston v. Pate 559 
 
 Usborne and Partridge 4 
 
 Vale V. Davenport 57 
 
 Vancouver v. Bliss 10. 229. 295 ; 
 
 ii. 24 
 Vane v. Lord Barnard 553 ; ij. 279 
 
 59 
 
 167 
 
 ii. 86 
 
 332, 560 
 
 318.351. 
 
 354 
 
 183 
 
 ii. 185 
 
 Vansittart v. Collier 
 Varlo and Rex 
 Vaughan and Evans 
 
 and Koswell 
 
 Vawdrey and Seaman 
 
 Vawser v. Jeffrey 
 Venacre and Spencer 
 Vendebendy and Bodmin, or 
 
 Radnor 517, 518, 519 ; ii. 306 
 Verlandcr v. Codd 93
 
 Ixii 
 
 INDEX TO CASES. 
 
 Vermedum and Gell 
 
 Verney (Lord) v. Carding ii 
 
 (Earl) and Stanhope 
 
 ii. 75 
 Verner v. Winstanley 255 
 Vernon, ex par/e 192; ii 
 
 andAtcherley 171. 174 
 
 and Lord Hardwicke ii. 
 
 Vernon v. Keys 
 
 V. Stephens 
 
 and Thicknesse ii 
 
 V. Vernon 
 
 Vigor and Attorney-General 
 
 Villiers v. Villiers 
 
 Vincent and West 
 
 Viney and Neal 
 
 Vizard v. Longdale 
 
 Vizod V. Londen 
 
 Voll V.Smith 119 
 
 Page 
 
 191 
 
 . 269 
 
 467; 
 
 . 265 
 
 . 262 
 
 136 
 
 , 175 
 
 120. 
 
 122 
 
 6 
 
 51 
 
 127 
 
 175 
 
 182 
 
 626 
 
 70 
 
 84 
 
 362 
 
 ib. 
 
 131 
 
 W. 
 
 Waddington v. Bristow 
 Waddy v. Newton 
 Wade and Beckford 
 Wade V. Marsh 
 
 and Tankard 
 
 Wadham and Heard 
 
 and Roach 
 
 Wadsley and Mayfield 
 Wadsworth and Crosby 
 
 82 
 
 325 
 
 388. 395 
 
 253, n. 
 
 470 
 
 245, 246 
 
 ii. 79, 80 
 
 83, 84 
 
 76. 79. 
 
 82, S3, 84 
 
 352 
 
 183, 184 
 
 146 
 
 ii. 306 
 
 86 
 
 ii. 197 
 
 85 
 
 and Pindar 
 
 Wager and Ryder 
 
 Waghorn and Kaye 
 
 Wagstaflfe v. Read 
 
 Wain V. Warlters 
 
 Wake and O'Dell 
 
 Wakefield and Saunders 
 
 Wakeman v. Duchess of Rut- 
 land 63. 370. 636, 537 
 
 Walden (Lord Howard de) and 
 
 Master of St. Cross 326 
 
 Waldron v. Forester ii. 8. 21 
 
 Waldron and Honeycomb ii. 211 
 
 Walker v. Advocate-General 20 
 
 V. Barnes 
 
 and Boothby 
 
 V. Burrows ii 
 
 Walker and Campbell ii. 109. 
 
 262 
 227 
 146 
 115. 
 122 
 
 Walker v. Constable 
 
 V. Moore 
 
 and Only 
 
 V. Preswick 
 
 V. Small wood 
 
 and Sanderson 
 
 Pa-e 
 
 706. 109. 
 
 151. 238 
 
 236 
 
 ii. 301, 302 
 
 ii. 73, 74 
 
 ii. 38. 281 
 
 ii. 115 
 
 V. Walker 101, n. 137 
 
 IValkley and Comer or Currer 
 
 187, ri. ; ii. 2. 4. 13. 20. 46, 
 
 46. 66 
 
 Wall V. Bright 186 
 
 V. Stubbs 261 
 
 Wallace v. Cook 451 
 Waller and Doe 249 
 V. Hendon 104 
 
 Wcdler and Hilary 338. 350. 470 
 
 Waller v. Horsefall 242 
 
 and Pigott 177. 181 
 
 Wallinger v. Hilbert 223. 295 
 
 Wallis and Harwood 160 
 
 Wallwyn v. Coutts ii. 169 
 
 V. Lee ii. 260. 303, 304 
 
 and Matthews ii. 221 
 
 Wohnsley and Clifton 157 
 Walpole (Lord) v. Earl of 
 
 Cholmondeley 152 
 
 Walsh V. Whitcomb 45 1 
 
 Walter v. Maunde 9. 344 
 
 Walters and Baglehole 3l3 
 
 V. Morgan II3 
 
 V. Pyman 224 
 
 Walton V. Hobbs ii. 30 1 
 
 V. Stamford ii. 272 
 
 Wanby v. Sawbridge Hq 
 
 Warburton v. Loveland ii. 158 
 
 2I2 
 
 Warcup and Twyford 31 9 
 
 and Callaway 17i 
 
 Ward and Casberd 512, n. ; ii. 7q 
 
 and Douglasse ii. 161. 172 
 
 and Garth ii. 28 1 
 
 V. Garnons 532 
 
 V. Moore 179 
 
 and Newell ii. 38 
 
 and Read ii. 184 
 
 and Waring 188 
 
 Warde v. Jeffery 427. 434. 443 
 
 Wardell and Farmer 264 
 
 Warring v. Hoggart 34. 36 
 
 V. Mackreth 332 
 
 and Reynolds 129
 
 INDEX TO CASES. 
 
 ]xiii 
 
 Waring v. Ward 
 Warlters and Wain 
 Warne and Carter 
 Warner's case 
 Warre v. Tyndale 
 Warren and Dutch 
 
 and Hall 
 
 and Proctor 
 
 V. Richardson 
 
 Warrick v. Warrick ii. 279 
 Warrington and Radcliffe 
 
 424. 427 
 Warwick v. Bruce 
 Wase and Emery 197 
 
 201.210 
 ii. 
 
 Washington v. Brymer 
 Waterhouse and BuUer 
 
 and Cass 
 
 Waters and Chambers 
 
 and Tayler 
 
 Waterworth and Ripley 
 Watkins and Allpass 
 
 V. Cheek 
 
 V. Hatchet 
 
 V. Maund 
 
 Watt V. Grove 
 Watts V. Creswell 
 
 V. Fullaiton 
 
 and Jenkinson 
 
 V. Kancy 
 
 V. Martin 
 
 and Prosser 
 
 and Shirley 
 
 Watson V. Birch 
 
 and Gell 
 
 and Gill 
 
 V. Reid 
 
 and Smith 
 
 V. Upton 
 
 Wayland and Wildgoose 
 Weakley v. Bucknell 
 Weal V. Lower 
 Weare and Adams 
 
 and Jerritt 
 
 Webb V. Bettel 
 
 and Kirk 
 
 V. Paternoster 
 
 and Potts 
 
 and Raymond 
 
 V. Rorke 
 
 V. Russell 
 
 92 
 
 Pawe 
 
 188 
 85 
 62 
 105 
 70 
 234 
 .274 
 147 
 225 
 297, 
 335. I 
 432 I 
 83 
 199, 200. 
 261. 274 
 ii. 374 I 
 ii. 179 
 97.323 
 ii. Ill ' 
 79 j 
 187! 
 243 I 
 ii. 39 I 
 304, n. 
 ii. 189 
 ii. 109 
 ii. 262 
 176 
 17G. 178, n. 
 ii. 52 
 69 
 356 
 ii. 199 
 68 
 ii. 18 
 228, 322 
 438 
 
 Weildon and Farlow 
 Weldon and How 
 Welford v. Beazely 95, 
 
 Welland and Balfour 
 Wellesley and Wright 
 Wells and Bally 
 Welsh and Fowle 
 Wenham and Kcnney 216 
 
 West V. Vincent 
 Westcoil and Beard ii 
 
 Westcott and Bradley 
 Western v. Russell 85. 
 
 n. 
 
 Wedderburne v. Carr 
 
 95 
 
 226 
 
 ii.276 
 
 ii. 155 
 
 194 
 
 267 
 
 ii. 84 
 
 247 
 
 ii. 137. 149 
 
 80 
 
 442 
 
 64 
 
 ii. Ill 
 
 ii. 78 
 
 104 
 
 427. 
 
 461 
 
 Pawe 
 
 67 
 
 ii. 260 
 
 101 ; ii. 
 
 296 
 
 ii. 36 
 
 439 
 
 ii. 78 
 
 ii. 83 
 
 284; 
 
 ii. 9 
 
 70 
 
 355, n. 
 
 ii. 375 
 
 93. 103. 
 
 189, n. 259. 301 
 
 Westlake and Spiller 246 
 
 Weston V. Berkeley ii. 307 
 
 Weston and Lyddal 351.354 
 
 and Noel 348. 450 
 
 Whale V. Booth ii. 54 
 
 Whaley v. Bagenel 96. 115 
 
 Whalley v. Whalley ii. 266 
 
 Wheate and Burgess 283 
 
 V. Hall 340 
 
 Wheatley v. Slade 301 
 
 Wheeler v. Bramah 52 
 
 V. Collier 28. 86 
 
 V. D'Esterre 116 
 
 and Harrington 428 
 
 V. Newton 99. 198 
 
 and Sir William Smhh ii. 51 
 
 and Taylor ii. 263 
 
 Whelpdale V. Cookson ii. 119. 124 
 Whichcote v. Bramston 266 
 
 V. Lawrence ii. 109. 115. 126 
 
 Whichcott and Duckenfield 3 
 
 Whitakre v. Whitakre ii. 109 
 
 Whitaker and Steed ii. 279 
 
 Whitbread v. Brockhurst 113. 115 
 and Savage 534 
 
 Whitchurch v. Bevis 98. 112, 113, 
 
 114, 115 
 V. Whitchurch 521, 522, 
 
 523. 526 
 
 224 
 
 ii. 109 
 
 451 
 
 204 
 
 49 
 
 115, 116 
 259, 260 
 
 396 
 
 Whitcomb v. Foley 
 
 V. Minchin 
 
 and Walsh 
 
 White's case 
 White V. Bartlelt 
 
 and Cole . 
 
 V. Damon 
 
 V. Ewer
 
 ixiv 
 
 INDEX TO CASES. 
 
 Page 
 
 White V. Foljambo 336, 336. 367 ; 
 
 ii. 24 
 
 V. Niitt 
 
 V. Proctor 
 
 and Parkes 
 
 White V. Stringer ii. 
 and Tomkins 
 
 277 
 
 106, 107 
 
 ii. 109 
 
 163. 177. 260 
 
 293 
 
 179 
 
 67. 69 
 
 White V. White 
 
 AVhite V. Wilson 
 
 Whitehouse and Hinde 90. 92, 93, 
 
 94. 105. 102 
 
 and 
 
 Whitfield V. Fausset 
 Whiting, or Edwards, 
 Mollis 
 
 and Stone 
 
 Whitley and Leman ii 
 
 Whitmel v. Farrel 
 Whitmore and Skett ii 
 
 Whitmore's case 
 Whitrong and Douglas 
 Whittaker v. Whittaker 180. 
 
 ii. 265 
 
 114 
 
 79 
 
 , 138 
 
 214 
 . 136 
 
 187 
 ib.- 
 
 191. 
 
 438 
 Whitworth (Lord) and Brookes 
 
 229 
 
 V. Davis 171 
 
 Whorwood v. Simpson 261. 428 
 V. Whorwood ii. 151, 152, 
 
 153 
 Wickham v. Everest 226 
 
 Widdrington and Christ's Coll. 
 
 ii. 301 
 Wigg V. Wigg ii. 274 
 
 Wightman and King 290 
 
 Wigles worth and Goore ii. 269 
 Wigzell and Francis ii. 107 
 
 Wilcocks and Coke ii. 308 
 
 V. Wilcocks ii. 151 
 
 Wild and Henderson ii. 62, n. 
 
 Wilde V. Fort 239. 341. 422. 
 
 512, n. ; ii. 10 
 
 Wildgoosc V. Moore ii. 243, 244 
 
 V. Wayland ii. 276 
 
 Wildigos V. Keeble ii. 243 
 
 Wilkenson and Lord Salisbury 
 
 ii. 14 
 Wilker v. Bodington 479 ; ii. 286 
 Wilkes and Redding 
 Wilkins V. Fry 
 
 and Jeanes 
 
 and Paul 
 
 and Stilwell 
 
 Wilkinson and Hartley 
 
 115 
 39 
 203 
 172 
 262 
 HI 
 
 Wilkinson and Lush 
 
 and Smith 
 
 and Wilmott 
 
 Wilks V. Biscoe 
 
 V. Davis 
 
 V. Wilks 
 
 Willan V. WiUan 
 Willcox V. Bellaers 
 W'illet V. Sanford 
 Willett V. Clarke 
 William v. Nevil 
 Williams v. Attenborough 
 
 and Calverley 
 
 Williams v. Carter 
 Williams v. Chitty 
 
 and Cornwall 
 
 V. Craddock 
 
 and Cunningham 
 
 V. Edwards 
 
 V. Lambe 
 
 V. Llewellyn 
 
 and Macnamara 
 
 V. Millington 
 
 V. Protheroe 
 
 and Pyke 
 
 Pago 
 
 ii. 147 
 
 ii. 135 
 
 331. 368 
 
 ii. 23 
 
 276 
 
 ii. 153 
 
 205 
 
 340 
 
 179, n. 
 
 243. 430 
 
 118. 131 
 
 62. 67 
 
 ii. 25 
 
 208 
 
 362, 363 
 
 208 
 
 324; 
 
 Williams and Rea 
 
 Willams and Reed 
 
 and Sangon 
 
 r- V. Shaw 
 
 548 
 
 60 
 
 302. 445 
 
 ii. 309 
 
 ii. 112 
 
 230 
 
 46 
 
 562 
 
 116 
 
 ii. 127, 128 ; 
 
 A pp. No. 23 
 
 ii. 297 
 
 194 
 
 230 
 
 and Terry, or Ferry 240 
 
 Williams v. Sorrell ii. 220 
 
 Willinms v. Thompson, or Bon- 
 ham 440 
 Williams v. Williams ii. 308 
 
 — and Wray 517 
 
 and Wynn 517 ; ii. 39 
 
 Williamson v. Curtis ii. 33 
 
 Willington and Mark 180 
 
 Willis V. the Commissioners of 
 Appeals in Prize Causes 
 
 ii. 14 
 
 v. Jernegan 
 
 and Portman 
 
 V. Willis 
 
 Willock and Collyer 
 and Seward 
 
 262 
 
 ii. 201 
 135. 138 
 ii. 16 
 247, 248. 432 
 Willoughby and Fowler 174 
 
 vl Willoughby 466. 482. 
 
 499. 511. 514. 517; ii. 259. 
 296 
 Wills V. Stradling 116, 117
 
 INDEX TO CASES. 
 
 Ixv 
 
 Page 
 
 Wilmot V. Wilkinson 331. 368 
 
 V. Derby Canal Company 
 
 ii. 197 
 Wilson V. Allen 
 Wilson V. Bennet 
 V. Clapham 
 
 11. 
 
 Wilson and Clark 
 
 and CoUon 
 
 and Diiffell 
 
 and Fooid 
 
 V. Foreman 
 
 V. Hart 
 
 and Horford 
 
 V. Knubley 
 
 and Maitland 
 
 Wilson and Lord Middleton 
 Wilson and Parks 
 and Radford 
 
 V. Rastall 
 
 and Thomson 
 
 and White 
 
 V. Wormol 
 
 Wilsons and Hunter 
 Wilton (Lord) and Clayton 
 
 ii. 164 
 ii. 35 
 46 
 138. 321, 
 
 6 
 
 174 
 
 ii. 10 
 
 226 
 
 369 
 
 287 
 
 ii. 9d 
 
 ii. 149 
 
 104 
 
 53 
 
 ii. 10-1 
 
 ii. 305 
 
 91 
 
 215 
 
 194, 195; 
 
 ii. 307 
 
 ii. 299 
 
 79 
 
 67. 69 
 
 ii. 169. 199 
 
 278, n. 
 
 Winter r. Lord Jlnson 
 
 Winter v. Blades 
 
 V. Brockwell 
 
 and Crockford 
 
 V. Devreux 
 
 and Leiffh 
 
 Page 
 
 ii. 57, 
 
 58, 59 
 
 ii.2 
 
 79 
 
 17 
 
 198 
 
 179 
 
 ii. 
 
 II. 
 
 Wintcn (Bishop of) and St. 
 
 John 
 VVirdman v. Kent 
 Wiseman's case ii 
 
 Wiseman v. Beake 
 Withers v. Pinchard 
 Withers and Rex ii 
 
 V. Withers ii 
 
 Withy V. Cotde 202. 216, 
 Wiltenoon and Crespigny ii 
 
 Wiltshire and Doran 
 
 V. Sims 
 
 Winch V. Winchester 
 
 322 ; ii. 24 
 Winchelsea (Earl of) and Finch 
 
 539 
 Winchester (Bishop of) v. j 
 
 Fournier ii. 298' 
 
 (Bishop of) V. Paine ii. 25. 
 
 281 
 
 and Winch 138. 321, 322 ; 
 
 ii. 24 
 Windsor (Lord) and Earl of 
 
 Pomfret 394 
 
 (Lord) and Story ii. 274. 
 
 304, 305, 306 
 
 Winford and Lutwych 57 
 
 Wing V. Earle 326 
 
 Winged v. Lefebury 172. 213 ; 
 
 ii. 269 
 Winsmore and Lichden 460 
 
 Winstanley and Attorney- Ge- 
 neral 15 
 
 and Blankley 157 
 
 and Verner 255. 262 
 
 Vol.. I. H 
 
 175 
 
 300 
 
 158 
 
 265 
 
 198 
 
 299 
 
 135 
 
 223 
 
 ii. 327 
 
 ii. 261 
 
 32 
 
 266. 273 
 
 ii. 131 
 
 289. 4.35 
 
 250. 444 
 
 ii. 17 
 
 121. 126 
 
 251. 302. 
 
 662 
 
 428 
 
 79. 81 
 
 ii. 131 
 
 ii. 66 
 
 Woodford and Thcllusson 181 
 
 Woodo'nte v. JVoodo-ale ii. 31, n. 
 
 Wolf and Burgh 
 j Womack and Bennett 
 ! Wood V. Abrey 
 , Wood V. Birch 
 
 Wood V. Bernal 
 
 \ and Boehm 223 
 
 and De Bernales 
 
 V. Downes 
 
 Wood V. Griffith 
 
 Wood and Green 
 
 V. Lake 
 
 V. Norman 
 
 V. Pollard 
 
 II. 
 
 173. 
 
 Woodhouse and Harvy 
 
 V. Jenkins 
 
 V. Meredith 
 
 ii. 259 
 ii. 89 
 
 ii. 109 
 245 
 161 
 144 
 245 
 188 
 
 and Smith 
 
 Woodie's case ii 
 
 Woodman v. Morrell ii. 142 
 Woodrow and Clazebrook 
 Woods V. Huntingford 
 Woollam V. Hearn 136, 137 
 
 Woollaston and Collet 259 
 
 Worcester (Bishop of) v. 
 
 Parker ii. 259 
 
 Wordsworth and Nicloson 218 ; 
 
 ii. 51 
 Woiley and Hamilton 188 
 
 Wormol and Wilson Ji. 169. 199 
 Worms and Granger * 35 
 
 Worrall v. .Jacob ii. 168
 
 Ixvi 
 
 INDEX TO CASES. 
 
 Worsley and Cavendish 
 
 and Hill 
 
 and Norcliffe 
 
 Page 
 194 
 281 
 194 
 
 V. Earl of Scarborough 
 
 ii. 280, 281. 283, 234 
 
 Worthy and Duke of Norfolk 34, 
 
 42. 49. 53. 234. 309. 322 
 
 Wortley v. Birkhead ii. 284 
 
 Wray v. Steel ii. 140 
 
 V. Williams 617 
 
 Wrenham and Kenney ii. 9 
 
 Wren V. Kirton 30. 62; ii. 115 
 Wright ex parte ii. 264 
 
 V. Bond 222 
 
 and Browning 162 ; ii. 81. 94 
 
 and Birch 252 
 
 Wright and Burdeil 492 
 
 Wright and Clerk 90. 115 
 
 V. Dannah 107 
 
 and Fox 272 
 
 and Freme 368 
 
 and Harrison 215 
 
 V. Howard 429 
 
 V. Mayor ii. 299 
 
 and Needier ii. 267 
 
 and Parry ii. 268 
 
 and Quaintrell 152 
 
 and Shaw 348 
 
 V. Wellesley 439 
 
 Wrightson v. Hudson ii. 220 
 
 Wrigley and Andrew ii. 52, 53. 55, 
 56. 275 
 Wroot and Doe 
 Wroughton and Hyde 
 Wyatt V. Men 46 
 
 V. Burwell 
 
 and Roberts 
 
 and Rondeau 
 
 Wynn v. Morgan 
 
 V. Williams 
 
 Wynne v. Griffith 
 V. Thomas 
 
 469 
 
 224 
 
 104. App. 
 
 No. 9 
 
 ii. 223 
 
 40. 449 
 
 105. 113 
 
 430 ; ii. 26 
 
 617; ii. 39 
 
 229 
 
 451 
 
 Page 
 
 Yallop and Douglas 552 
 Yardly and Drapers Com- 
 pany ii. 293 
 Yarworth and Nourse 626 
 Yates V. Farebrother 48 
 Yea V. Field 531 
 Yeavely v. Yeavely ii. 281 
 Yems V. Smith ii. 331 
 Yielding and Harnett 202. 204, 
 205. 209. 306 
 York V. Eaton ii. 127 
 York B. Company v. Mac- 
 kenzie ii. 109, 110. 115. 122, 
 123. 126 
 B. Company and Hig- 
 
 gms 
 Young and Berry 
 
 V. Clerk 
 
 38. 
 
 426 
 
 6. 205 
 
 Young and Crosse 
 Young V. Duncombe 
 and Fountain 
 
 Young and Harvey 
 Young and Kingsley 
 Young V. Radford 
 V. Younsf 
 
 Wyvill V. Bishop of Exeter 280 
 
 Year Books. 
 
 14 E. pi. 8 
 
 30 E. 324 a. 
 42 E. 3. 11 a. 
 
 47 E. 3. 18 a. pi. 35 
 
 31 Ass. pi. 6 
 
 38 Ass. pi. 4 
 42 Ass. pi. 17 
 
 2 H. 4. 8 b. pi. 42 
 14 a. pi. 5 
 
 39 H. 6. 35 
 2 E. 4. p!. 11 
 7 E. 4. 14. b. 
 
 26 H. 8. T. pi. 11 
 
 Z. 
 
 543 
 
 47. 419. 
 
 529. 531 
 
 259, 260 
 
 ii. 82, 83 
 
 226 
 
 ii. 299 
 
 3 
 
 342 
 
 463 
 
 162 
 
 253, n. 
 
 547 
 
 ib. 
 
 326 
 
 j ii. 199 
 
 ib. 
 
 647 
 
 ib. 
 
 ib. 
 
 ii. 201, n. I 
 
 253, n. 
 
 197 
 
 ii. 83 
 
 Yallop, ex parte 
 
 Zagury v. F urn ell 278 
 
 ii. 264 Zouch v. Swaine ii. 104
 
 TABLE OF STATUTES. 
 
 Ixvii 
 
 TABLE OF STATUTES CITED. 
 
 EDWARD I. 
 
 13. c. 19. Administration ii. 201 
 33. Measures 324 
 
 EDWARD III. 
 
 4. c. 7. Executors ii. 201, n. 
 
 31. c. 11. Administration ii. 202 
 
 HENRY VII. 
 
 11. c. 20. Husband and Wife 381 
 
 HENRY VIII. 
 
 21. c. 6. Administration ii. 202 
 24. c. 4. Measures 324 
 
 27. c. 10. s. 3. Merger 464 
 
 32. c. 2. Limitation of Time 329. 
 
 388, 389. 392, 393 
 c. 9. Sale of pretended 
 
 Titles 660 
 
 c. 34. Covenants ii. 77. n. 
 
 ii. 78. n. 
 
 ELIZABETH. 
 
 13. c. 5. Fraudulent Convey- 
 ances. Creditors ii. 
 146 
 c. 4, Crown debtors 
 c. 7. Bankruptcy 
 27. c. 4. 1 Fraudulent 
 
 30. c. 18. \ Conveyances. 
 
 s. 3. j Purchasers. 
 43. *c. 4. Charity 
 
 c. 8. Administration 
 
 612, n. 
 ii. 183 
 ii. 146 
 ii. 1.56 
 ii. 156 
 ii. 182 
 ii. 202 
 
 CHARLES IL 
 
 Page 
 
 22 & 23. c. 10. Distribution ii. 202 
 
 29 c. 3, s. 1. Leases 74. 103 
 
 s. 2. Leases ib. ib. 
 
 s. 3. Grants ib. ib. 
 
 s. 4. Parol Argree- 
 
 ments ib. ib. 
 
 s. 7. Declaration of 
 
 Trusts ii. 132 
 
 s. 8. Resulting Trusts 
 
 ii. 135 
 s. 14, 15. Judgments 
 
 ii. 192. 195 
 s. 16. Execution ii. 198 
 s. 17. Parol Agree- 
 ments 90. 104 
 s. 18. Recognizances 
 
 ii. 203 
 s. 26. Distribution ii. 202 
 
 WILLIAM and MARY. 
 
 3. c. 14. Devises ii. 104 
 
 4 & 6. c. 20 Judgments 
 
 ii. 193. 195 
 
 WILLIAM III. 
 
 7 & 8 c. 36. s. 3. Judgments 
 
 ii. 193 
 11 & 12. c. 4. Papist pur- 
 chasers ii. 108. 241, 242. 244 
 
 JAMES I. 
 
 21. c. 16. Limitation of Time 
 
 329. 388. 392, 393.. 418, n.
 
 Ixviii 
 
 TABLE OF STATUTKS. 
 
 Page j 
 
 21. c. 19. s. 9. Judgments 
 
 against Bankrupts ii. 196 ' 
 c. 19. Bankrupts ii. 75. 146 
 s. 14. Purchasers 
 from Bankrupts 
 
 ii. 184. 191 
 c. 24. Debtors dying in 
 
 Execution ii. 197 
 
 ANNE. 
 
 2 & 3. c. 4. Registry ii. 204 
 
 5 C.18. s. 11. ) y.. i 551; ii. 204 
 
 6. C.35. s. 28. ) '^'"'' \ .551; ii. 204 
 
 7. c. 19. Infant Trustees 192 
 
 c. 20. Registry ii. 204. 209, 
 210 
 
 GEORGE I. 
 
 3. c. 18. Papist Vendors ■ ii. 241, 
 242. 244 
 
 8. c. 25. s. 6. Judgments ii. 193 
 
 9. c. 7. s. 4. Churchwardens ii. 106 
 
 GEORGE II. 
 
 7. c. 20. Ejectments 252 
 
 8, c. 6. s. 33. Registry 551 ; ii. 
 
 204 
 14 c. 20. s. 4. Recoveries ii. 245 
 
 GEORGE III. 
 
 17. c. 26. Life Annuities, App. 
 
 No. 13 
 
 17. c. 50. s. 8. 
 
 > I < 
 
 3 
 
 19. c. 66. s. 11. 
 
 s. 12. 
 
 s. 13. 
 
 s. 14. 
 
 s. 15.J L 
 
 25 0. 36. Extents 
 
 27. c. 13. s. 36. 1 = r 13 
 
 28. c. 37. s. 19. y I V 23 
 
 s. 20. J I I 18 
 
 29 c. 36. s. 4. Papist Ven- 
 dors, ii. 241 
 31 c. 32. Papists ii. 108 
 
 I'aL'c 
 37. c. 14. 1 ^ r 13 
 
 41. c. 109. s. 2. I g I ii. 110, n. 
 
 42. c. 93. s. 1. ys ^ 18 
 
 s. 2. I = I 19 
 
 c. 116. s. 113.J "^ L 13 
 
 43. c. 30. Papists ii. 108. 243 
 
 45. 0. 30. Auctions 13 
 
 46. c. 135. Purchasers from 
 
 Bankrupts ii. 185. 190 
 
 47. c. 74. Debts of Traders ii. 32 
 49. c. 121. s. 2. Purchasers 
 
 from Bankrupts ii. 185 
 188. 190. 
 
 53. c. 141. Life Annuities, App. 
 
 No. 13 
 
 54. c. 173. s. 12. Defects in 
 
 Sales for Land-Tax ii. 249 
 
 55. c. 184. Appraisement 54 
 55. c. 192. Disposition of Co- 
 pyholds by Will 183 
 
 67. c. 100. s. 22. Defects in 
 Sales for 
 Land-Tax ii. 251 
 s. 23 ii. 263 
 
 s. 24 ii. 254 
 
 s. 26 ii. 255 
 
 s. 26 ii. 256 
 
 GEORGE IV. 
 
 1 & 2. c. 121, s. 10. Protec- 
 tion from Crown Debts ii. 257 
 3. c. 92. Life Annuities ii. 333 
 6. c. 74. s. 1. -^ r 326 
 
 'V >■ Measures-^ ., 
 s. 15. [ ] lb. 
 
 6. c. 12. s. 23. J t ib. 
 
 c. 16. s. 4. 1 Purchases 
 
 ; from Bank- 
 
 s. 73. j rupts. 
 
 s. 75. Leases in Bank- 
 
 1 ( ii. 146 
 < ii. 184 
 ( ii. 191 
 
 rupts 
 s. 76. ^ 
 s. 81. 
 
 s. 83. 
 
 r 
 
 a 
 
 s. 86. 
 s. 86. 
 
 s. 87. 
 s. 98. _ 
 
 a 2 
 
 52 
 
 172 
 
 ii. 189 
 
 ii. 190 
 
 289 
 
 ib. ib. 
 
 ib. ib. 
 
 ii. 191 
 
 15
 
 TABLE Ol- STATUTES. 
 
 Ixix 
 
 Page 
 
 \ Judgments i 
 6.C.16.S.108. J. against ' ii. 196 
 j Bankrupts ( 
 c. 74. Intant Trusts 192 
 
 9. c. 35. Judgments in Ire- 
 
 land 539 
 
 10. c. 7. s. 23. Papists ii. 108. 244 
 
 WILLIAM IV. 
 
 1. c. 36. s. 15. R. 15. Con- 
 tempts 194, n. 
 c. 47. Payments of Debts 
 out of Real Estate, 
 
 ii. 32. 104 
 c. 60. Trustees and Mort- 
 gagees 192, 193. 350 
 c. 65. s. 7. Infants, &c. 201 
 1 & 2. c. 56. Bankruptcy 
 
 Court ii. 189. 247 
 
 2 & 3. c. 71. Time of Pre- 
 
 scription 412 to 415 
 
 c. 100. Tithes 415 to 418 
 
 3 & 4. c. 27, Limitation of 
 
 Actions 329, 330. 397 
 
 to 412 
 c. 42. Amendment of the 
 
 Law 276. 418 ; ii. 20 
 
 c. 47. Bankruptcy Court ii. 189 
 3 & 4. c. 74. Fines and Re- 
 coveries 193, 194. 196. 
 356. 359. 364. 
 380 to 386 ; ii. 
 103. 246, 247, 
 248. 269. 305, n. 
 c. 94. Chancery Practice 66. 59 
 c. 104. Simple Contract 
 
 Debts ii. 104 
 
 c. 105. Dower 196. 359 364 
 
 to 367 ; ii. 168 
 
 c. 106. Inheritance 370 to 375
 
 INDEX 
 
 AMERICAN CASES 
 
 CITED IN THE NOTES. 
 
 9iiee. 
 
 Page 
 
 ABBOT V. Allen i. 279. 370. 
 
 629 
 
 V. Sebor ii. 345 
 
 105. 149 
 
 i. 461 
 
 i. 434 
 
 i. 386 
 
 ii. 345 
 
 Abeel v. Radcliff i. 
 
 Adamson v. Smith 
 Adsit V. Adsit 
 Alden V. Murdock 
 Alexander v. Emerson 
 
 V. Pendleton ii. 
 
 Allen V. Bennet 
 
 314. 
 i 
 
 V. Lyon i. 
 
 V. Prior i 
 
 Alston V. Jones ii. 
 
 Ambler v. Norton i. 187. 
 Anderton v. Roberts 
 Andrews v. Solomon 
 Anonymous i. 461 
 
 Applebury v. Anthony 
 Arden v. Arden 
 Argenbright v. Campbell 
 
 132. 196. 199. 315 
 Arms V. Ashley ii. 155 
 
 Armstrong v. Hickman i. 190. 249 
 Askew V. Poyas i. 275 
 
 Astor V. Wells ii. 199 302. 320 
 Austin V. Hall i. 314 
 
 Avery v. Kappel i. 195 
 
 ii. 185. 
 ii. 
 ii. 
 ii. 
 ii. 
 i. 
 
 325 
 
 99 
 
 181 
 
 98 
 
 345 
 
 434 
 
 259 
 
 346 
 
 185 
 
 300 
 
 467 
 
 117. 
 
 B. 
 
 Backhouse v. Crosby 
 Bailey V. Ogdens 
 
 i. 99 
 i. 118 
 
 Page 
 
 Bailey v. Snyder i. 389 
 
 Baker v. Arnold ii. 347 
 
 V. Glascock i. 157 
 
 V. Seekright i. 82 
 
 Ballard v. Walker i. 100. 116. 159 
 Bank of Columbia v. Patterson 
 
 ii. 240 
 Niagara v. M'Cracken ii. 304 
 
 Baptist Association v. Hart i. 213 
 
 Barber v. Brace 
 Barksdale v. Brown 
 BarndoUar v. Tate 
 Barrell v. Joy 
 Barrett v. Barrett 
 Barstow v. Gray 
 V. Kilvington 
 
 Bartlett v. Pickersgill 
 
 Barton v. Rushton 
 
 Barruso v. Madan 
 
 Bassler v. Niesly 
 
 Bateman v. Philips 
 
 Battin v. Bigelow 
 
 Batty V. Carswell 
 
 Baxter v. Smith 
 
 Bayard v. HofTman 
 
 Bearce v. Jackson 
 
 Beatty v. Smith 
 
 Beaty v. Beaty 
 
 Bebeev. Bank of New- York ii.314 
 
 Belden v. Carter i. 314 
 
 V. Seymour ii. 356. 357 
 
 Bell V. Andrews i. 134. 140. 146. 
 
 156 
 
 172 
 51 
 189 
 155 
 157 
 100 
 i. 193 
 ii. 318 
 i. 213 
 i. 292 
 136. 138 
 i. 99 
 i. 523 
 i. 50 
 ii. 121 
 ii. 190 
 ii. 94 
 ii. 348 
 i. 118
 
 JNDEX TO AMERICAN CASES. 
 
 Ixxi 
 
 Benedict v. Beebe i. 96 
 
 V. Lynch, i. 156. 252. 
 
 491. 497,498. 516. ii. 305 
 Benezet v. M'Clenachan i. 183 
 Bennett v. Irwin 
 
 V. Pixley 
 
 Bergen v. Bennett 
 Berry v. Mutual Ins. Co, 
 
 Bethune v. Beresford 
 Beverley v. Lawson 
 Bickford v. Page 
 Bilbie V. Lumley 
 Bingham v. Bingham 
 Bize V. Dicliason 
 Billington v. Welsh 
 
 Blair V. Hardin 
 V. Owles 
 
 Bliss V. Thompson 
 Boar V. M'Cormick 
 Bostvvick V. lieach 
 V. Lewis 
 
 n. 90 
 
 i. 292 
 
 ii. 143 
 
 li. 251. 
 
 254. 303. 337 
 
 i. 240 
 
 263. 411 
 
 ii. 90 
 
 i. 308 
 
 i. 308 
 
 i. 308 
 
 133. 135. 
 
 138. ii. 320. 
 
 ii. 106 
 
 ii. 254. 313. 320 
 
 . 345 
 
 i. 98. ii. 257 
 
 i. 384 
 
 i. 98 
 
 i. 369. 372 
 
 i. 164. 176. ii. 
 
 1. 
 
 Botsford V. Burr 
 
 149. 152, 153, 154. 162, 163, 
 164. 176. 318 
 
 V. Morehouse i. 176. 
 
 289 
 
 Bowen v. Bell 
 Bowers v. Hurd 
 Bowman v. Bates 
 Boyd V. Dunlap 
 
 V. Graves 
 
 V. M'Lean i. 
 
 i. 156. ii. 357 
 
 i. 171 
 
 i. 249. 320 
 
 ii. 185 
 
 i. 98 
 
 193 : ii. 149. 
 
 152, 153, 1,54. 156 
 
 V. Stone i. 138. 145 
 
 Boykin v. Smith i. 127 
 
 Boyle V, Rowand i. 350. ii. 8 
 
 Boynton v. Hubbard i. 324 
 
 Bradish v. Gibbs i. 240 ; ii. 190 
 Bradshaw v. Bennet i. 288 
 
 Brady v. Waldron i. 262 
 
 Bright v. Haggin ii. 347 
 
 Brinckcrhofl' v. Lansing ii. 300 
 Brinkerhoff v. Marvin ii. 251 
 
 Brisbane v. Dacres i. 308 
 
 Brodie v. Scagroves i. 31 
 
 Broome v. Beers ii. 300 
 
 Brown v. Bellows i. 298 
 
 v. Galloway i. 541 
 
 ■ 1 V. Gilliland i. 122 
 
 Page 
 
 Brown v, Gilman ii. 65, 66. 83 
 
 v. Moorhead ii. 301 
 
 V. Rickets ii. 141 
 
 Bruch V. Lantz ii. 173 
 
 Bruce V. Barber i. 172 
 
 Bryan v. Hinman i. 464 
 
 Buck V. Halloway ii. 323 
 
 Bulkley v. Storer i. 34 
 
 Bullard v. Briggs ii. 159. 357 
 
 Bumpus v. Platner i. 370. 635 ; 
 
 ii. 199. 314 
 
 I Bunbury v. Winter ii. 22 
 
 Bunce v. Wolcott i. 461 
 
 I Ourch V. Hurst i. 323 
 
 Bunnel v. Taintor i. 97 
 
 Burgen v. Bennet ii. 128 
 
 Burke v. Young i. 220. 222 
 
 Burkett v. Randall i. 154 
 
 Burnet v. Denniston i. 31 
 
 Bush V. Bradley i. 461 
 
 Butler V. Haskell i. 318. 322, 
 
 323, 324, 325 ; ii. 123 
 
 V. O'Hear i. 253. 355. 
 
 410, 498 ; ii. 28 
 Butts V. Chinn ii. 325 
 
 Cady V. Cadwell i. 134 
 
 Caines v. Grant ii. 144 
 
 Cadwell v. Myers i. 246 
 
 Calquhoun v. Atkinsons ii. 251 
 Campbell v. Ketcham i. 246 
 
 V. Spencer i. 247 
 
 Cannon v. Mitchell i, 34 
 
 Capcl v. Bull ii. 88 
 
 Carberry v. Tannehill i. 246 
 
 Carkhuff v. Anderson ii. 615 
 
 Carnes v. Smith ii. 196 
 
 Carter v. Campbell i. 382. 389 
 Casack v. Descoudres i. 100. 102 
 Cassell. v. Cooke i. 302 
 
 Cassamajor v. Strode i. 365 
 
 Caswell v. Black River Manu- 
 
 'Tacturing Co. i. 629 
 
 Chamberlain v. Gorham ii. 304 
 Champion v. Brown i. 220. 248 ; 
 
 ii. 307 
 Chapel V. Bull i. 315 
 
 Chapman v. Allen i. 186 
 
 Chappel V. Avery i. 195 
 
 Chesterman v. Gardner i. 370 ; 
 ii. 323
 
 INDEX TO AMERICAN CASES. 
 
 Chickeiin v. Lovcjoy i. 65 
 
 Chin V. lleale i. 366 
 
 Christ V. Difteback i. 166. 190. 
 
 207 
 Church V. Church i. 166 
 Clark V. Giflord i. 314 
 V. Hackwell i. 155 
 
 V. Henry i. 196 
 
 V. Redman i. 422 
 
 V. VanReimsdyk ii- 348 
 
 Clarke v. Grant i. 165 
 
 Clason V. Bailey i. 100. 110. 117 
 
 V. Morris ii. 348 
 
 Clay V. Williams ii. 346 
 
 Cleaves v. Foss i. 58. 101. 124 
 Clementson v. Williams i. 138 
 Clifton V. Haig ii. 119 
 
 Clinan v. Cooke i. 192 
 
 Clithorall v. Ogilvie i. 245. 247. 
 
 321, 322 
 Clute V. Robison i. 503. 628. 
 
 ii. 253. 304 
 Codwise V. Gelston i. 616 
 
 Cogdell V. Cogdell i. 220. 222 
 Colcock V. Butler i. 498 
 
 V. Garvie ii. 240 
 
 Cole V. Hawes ii. 104. 110 
 
 V. Scott ii. 62. 65. 82 
 
 V. Wendell i. 181 
 
 Colhoun V. Snyder i. 621 
 
 Collins V. Gibbs i. 299 
 
 Coleman v. Upcot i. 99 
 
 Colquhoun v. Atkinsons ii. 251 
 Colson V. Thompson i. 105. 149. 
 
 244, 245 
 Commonwealth v. Wolbert i. 627 
 Comstock V. Hadlyme i. 194, 195 
 Connecticut v. Bradish ii. 256 
 
 V. Jackson ii. 12 
 
 Connelly v. Childes ii. 345 
 
 V. Pierce i. 293 
 
 Conway v. Alexander i. 312 
 
 Cook V. Darby ii. 469 
 
 V. Preston i. 166 
 
 V. Stearns i. Vl 
 
 Corbin v. Waller ii. 136 
 
 Correy v. Caxton ii. 243 
 
 Cortelyou v. Van Brundt i. 188, 
 
 189 
 Cortes V. Billings ii. 345 
 
 Cosack V. Descoudres i. 100 
 
 Cotton V. Lee i. 99 
 
 Pase 
 
 Coutts V. Craig i. 182 
 
 Covert V. Irwin ii. 316 
 
 Cox V. Fenwick ii. 63. 65. 67 
 
 V. Grant ii. 152 
 
 Craig V. Leslie i. 229. ii. 65. 119 
 
 V. Radford ii. 119 
 
 Crane v. Deming i. 326 
 
 Crawford v. Morrell i. 98 
 
 Creacraft v. Wions i. 434 
 
 Crocker v. Higgins i. 138 
 
 Croome v. Lediard i. 165. 355 
 
 Crosby v. Parker i. 386 
 
 Crotzer v. Russell ii. 301 
 
 Cuff v. Penn i. 1.58 
 
 Cunningham v. Morrell i. 292 
 
 Curkhuffv. Anderson i. 615 
 
 Currens v. Hart i. 616 ii. 316 
 Gushing V. Hurd ii. 260. 337 
 
 Cuyler v. Bradt ii. 307. 340 
 
 D. 
 
 Dabney v. Green i. 187 
 
 Dalby V. Pullen i. 355 
 
 Dando v. Tremper i. 289 
 
 Dandridge v. Harris i. 133 
 
 Davenport v. Mason i. 135 
 
 144, 145. 155 
 Davis V. Lyman ii. 90 
 
 V. Rainsford i. 384 
 
 V. Robertson i. 58. 110. 124 
 
 Davison v. Waite ii. 307 
 
 Davoue v. Fanning ii. 123. 125. 
 129, 130. 137 
 Dawes v. Boylston ii. 174 
 Dayne v. King i. 298. 384 
 Dearborn v. Cross i. 159 
 V. Dearborn i. 626 
 
 Decouche v. Savetier i. 466. 467 
 De Long v. Stanton i. 187 
 
 Demarest V. Wynkoop i. 239. 461, 
 462. 468. 471. ii. 29. 313 
 Den V. Despereaux i. 65 
 
 V. Hill i. 616 
 
 V. M'Knight ii. 126 
 
 V. Mulford i. 461 
 
 V. Wright i. 65. ii. 126 
 
 Denniston v. Morris i. 370 
 
 Denton V. M'Kenzie i. 102 
 
 D'Utricht v. Melchor i. 349 
 
 Dey V. Dunham ii. 187: 211. 254. 
 260. 335
 
 INDEX TO AMERICAN CASES. 
 
 Ixxiii 
 
 Dibble v. Hulton 
 Dickerson v. Dickerson i 
 Dilwoith V. Siriderliiig 
 Dimond v. Enoch 
 Dixon V. Swiggett 
 Doe V. Campbell 
 
 V. Horniblea 
 
 V. Phelps 
 
 Dolin V. Coltman 
 Donaldson v. M'Roy 
 Doolin V. Ward 
 Doolittle V. Blakesley i. 
 Dorsey v. Jackman i. 
 Douglass V. Spears 
 Dow V. Warren 
 Dowdall V. Lenox 
 Downey v. Hotchkiss i 
 
 Downing v. Brown 
 Duke of Cumberland v. 
 
 ton 
 Dunbar v. Jumper 
 Duncan v. Duncan 
 
 V. Forrer 
 
 Dunham v. Baker 
 
 V. Dey 
 
 Dunlop V. Speer 
 Dupree v. M'Donald i. 
 166. 183. 
 Dusenbury v. Ellis 
 Duvall V Bibb i 
 
 V. Craig i 
 
 Dwight V. Pomeroy i. 
 
 Dyer v. Lewis 
 
 Pai;c 
 
 i. 239 
 . 170. 174 
 ii. 140 
 i. 181 
 i. 156 
 i. 542 
 ii. 119 
 i. 542 
 ii. 161 
 i. 23 
 i. 31 
 182. 464 
 279. 639 
 i. 100 
 i. 461 
 ii. 22 
 , 86. 135, 
 136 
 i. 48 
 Codring- 
 i. 230 
 ii. 91 
 i. 183 
 ii. 145 
 i. 157 
 ii. 319 
 i. 206 
 157. 161. 
 191. 198 
 i. 60 
 i. 67. 295 
 59. ii. 94 
 157. 161. 
 162. 174 
 i. 378 
 
 E. 
 
 Eager v. The Commonwealth 
 
 i. 461 
 Eagle Fire Insurance Company v. 
 
 Cammet 
 Eastburn v. Kirk 
 Ebert v. Wood 
 Edwards v. Haudley 
 Edwin V. Saunders 
 Egerton v. Matthews 
 Eichelberger v. Barnitz 
 Eliason v. Henshaw 
 Ellis V. Deadman 
 
 V. Hoskins 
 
 Ellsworth V. Buckmycr 
 Klinendorf v. Carinichae' 
 vox,. I. 
 
 1. 65 
 
 ii. 28 
 
 i. 135 
 
 i. 247 
 
 i. 159 
 
 i. 99 
 
 i. 320 
 
 i. 103 
 
 i. 105 
 
 i. 629 
 
 i. 181 
 
 ii. 120 
 
 I 
 
 Elmore v. Austin 
 Ely V. Adams 
 Erskine v. Townsend 
 Evans v. Jones 
 Evertson v. Tappen 
 Ewing V. Smith 
 
 V. Tees 
 
 Ex -parte Minet 
 
 Gardom 
 
 Wragg 
 
 Page 
 
 i. 166 
 
 i. 181 
 
 i. 311 
 
 ii. 251 
 
 ii. 125 
 
 i. 239 
 
 121. 134 
 
 i. 99 
 
 i. ib. 
 
 ii. 73 
 
 F. 
 
 Fairfax v. Hunter 
 
 V. Muse 
 
 Farnsworth v. Childs ii, 
 Farrer v. Ayres i. 
 
 Fasholt V. Reed 
 Faysoux v. Prather 
 Fay V. Hunt 
 Feme v. Bullock 
 Field V. Holland 
 Finley v. Williams 
 Fischill V. Dumaresly 
 Fisher v. Kay 
 Fitch V. Fitch 
 Fitzhugh V. Runyon i. 
 Fitzpatrick v. Smith 
 Fitzsimmons v. Ogden 
 Fleet V. Hawkins 
 Fleming v. Gilbert i. 
 Flemings v. Willis 
 Fletcher v. Peck ii. 
 
 V. Toilet 
 
 Flint V. Sheldon i. 196 
 
 254. 
 195. 
 
 ii. 
 i. 
 
 ii. 
 
 i. 
 
 i. 
 
 i. 
 
 11. 119 
 
 i. 74 
 
 335 
 
 197 
 
 324 
 
 461 
 
 120 
 
 156 
 
 641 
 
 541 
 
 i. 98 
 
 i. 253 
 
 i. 324 
 
 157. 170 
 
 i. 208 
 
 ii, 295 
 
 i. 384 
 
 159. 174 
 
 i. 157 
 
 199. 259 
 
 i. 307 
 
 ii. 159 
 
 Foillard v. Wallace 
 Foote V. Calvin ii. 
 Foster v. Briggs 
 Ford V. Herron 
 Forster v. Fuller 
 Fowle V. Freeman 
 Fowler v. Lewis 
 Fox V. Longly 
 
 V. Southack 
 
 Francis v. Hazlerig i. 
 
 11. 94 
 152, 153, 154 
 i. 65 
 i. 74 
 i. 69 
 i. 99 
 i. 128. 132 
 i. 135, 136 
 ii. 119 
 182 ;' ii. 65 
 Frankfort Bank v. Anderson ii. 240 
 
 II 
 
 Franklin v. Osgood 
 Frcar v. Hardenburgh 
 Frederick v. Campbell 
 Freoport v. Bartol 
 Friedly v. Scheetz 
 Frost V. Bcekman ii. 199. 254, 255. 
 307. 313 
 
 133 
 
 i. 96 
 
 ii. 301 
 
 i. 96 
 
 i. 68
 
 Ixxiv 
 
 INDEX TO AMERICAN CASES. 
 
 Page 
 
 Frost V. Raymond i- 629 
 
 Fuhrman V. London i. 210 
 
 Fuller V. Hubbard i. 292. 297 
 
 Fulweiler v. Baugher i. 276. 281 
 
 Furman v. Haskin ii. 304 
 
 G. 
 
 Gardner v. Gardner 
 Garner V. Garner 
 Garson v. Green 
 
 Gasley v. Price 
 Gay V. Hunt 
 Geer v. Winds 
 German v. Gabbold 
 
 ii. 86 
 
 i. 591 
 
 ii. 62. 65, 66, 
 
 67. 69, 70. 74 
 
 i. 192 
 
 i. 187 
 
 i. 190 
 
 152. 163. 
 
 318 
 
 Gerrish V. Washburn i. 158 
 
 Getman v. Beardsley i.l91 ; ii. 28 
 
 Gilbert v. Bulkley i. 289 
 
 Gillespie v. Moon i. 164. 166. 
 
 189. 191 ; ii. 305 
 
 Gillet V. Maynard i. 140. 279. 
 
 349. 629 
 
 Gilman v. Brown ii. 62 
 
 Gilpins V. Consequa i. 172 
 
 Gist V. Cattell ii. 466 
 
 Givens V. Calder i. 105. 114. 
 
 119. 132. 135, 136. 149 
 
 Glaze V. Drayton 
 
 Glen V. Glen 
 
 Glover V. Smith 
 
 Goddard v. Bulow 
 
 V. Bolster et al 
 
 Goodenow v. Tyler 
 Goodrich v. Pendleton 
 Goodtitle V. Edmonds 
 
 -: V. Morgan 
 
 Goodwin v. Gilbert 
 
 • V. Hubbard 
 
 Gore V. Stackpole 
 Goss V. Lord Nugent 
 Gouveneur v. Elmendorf 
 
 Graham v. Bickham 
 Groham v. Hendren 
 Grant v. Craigmiles 
 
 V. Duane 
 
 V. Hook 
 
 V. Naylor 
 
 Grantland v. Wight 
 
 i. 234 
 
 i. 390 
 
 i. 383 
 
 i. 181 
 
 i. 42 
 
 i. 61 
 
 ii. 256 
 
 i. 195 
 
 i. 636 
 
 i. 98 
 
 ii. 169 
 
 i. 65 
 
 i. 168 
 
 i. 370. 
 
 629 
 
 i. 260 
 
 i. 368 
 
 132. 153 
 
 i. 469 
 
 ii. 173 
 
 i. 138 
 
 i. 323. 384. 
 
 610 
 
 I. 
 
 Gray v. Handkinson 
 V. Holdship 
 
 Page 
 
 i. 384 
 
 i. 41 
 
 Green v. Price ii. 300 
 
 - V. Reynolds i. 292, 293. 297 
 
 - V. Slayter ii. 260. 323. 335 
 
 - V. Winter ii. 123. 125. 140 
 
 Greenby v. Wilcocks ii. 89. 92. 94 
 Greenhow v. Coutts ii. 190 
 Greenwalt v. Born i. 353. 358 
 Gregor v. Duncan i. 319. 321, 322 
 Gregory v. Setter ii. 156 
 Gridley v. Andrews ii. 80 
 Griffith V. Depew ii. 63 
 Grisold V. Butler i. 461 
 V. Messenger ii. 365 
 
 H. 
 
 Hall V. Vandegrift i. 
 
 Hamilton v. Cawood i. 
 
 V. Cutts 
 V. Jones 
 V. M'Guire 
 V. Wilson 
 
 Hampson v. Edelen ii. 
 Hampton v. Speckenagle 
 Hannay v. Eve 
 Hardin v. Kretsinger 
 Harrington v. Brown 
 Harris v. Bell 
 
 V. Dinkins i. 
 
 V. Knickerbacker 
 
 Harrison v. M'Mennorny 
 
 V. Sampson 
 
 Hart V. Porter 
 
 V. Reeves 
 
 V. Ten Eyck 
 
 Harvey v. Alexander 
 Hasbrouck v. Patten 
 V. Tappen 
 
 Hastings v. Dickenson 
 Hatch V. Cobb i. 244. 
 
 V. Dwight 
 
 V. Hatch i. 182. 
 
 Hatcher v. ilatcher 
 Hatton V. Gray 
 Haven v. Foster 
 Hawkins V. Hawkins i. 
 iHawley v. Mancius 
 'Hawn V. Norris 
 
 461. 466 
 167. 181, 
 
 182, 183 
 ii. 94 
 
 i. 145 
 i. 156 
 ii. 89 
 a23, 324 
 i. 296 
 i. 247 
 i. 192 
 ii. 126 
 i. 221 
 
 183. 186 
 i. 138 
 
 ii. 155 
 
 ii. 88 
 
 i. 302 
 
 i. 615 
 
 348, 349 
 
 i. 156 
 
 i. 96 
 
 96. 174. 
 
 260 
 
 i. 434 
 
 276. 498 
 
 i. 386 
 
 289. 313 
 
 ii. 63. 65 
 
 i. 99 
 
 i. 309 
 
 172. 208 
 
 ii. 125 
 
 i. 642
 
 INDEX TO AMERICAN CASES. 
 
 Ixxv 
 
 Hayden v. Stoughton 
 Hays & al. v. Jackson 
 Heatly v. Finster 
 Heffner v. Miller 
 Heister v. Fortner 
 Helm V. Small 
 Henderson v. Hudson 
 
 Page j , 
 
 i. 295 Hughes v. Worley 
 ii. 86 j Hull V. Cunningham 
 Hundley v. Lyons 
 Hunt V. Adams 
 
 V. Livermore 
 
 V. Rousmanier 
 
 V. Warnicke 
 
 u. 323 
 ii. 347 
 ii. 254. 317 
 i. 182 
 i. 97; ii. 
 149 
 ii. 251 
 ii. 211 
 ii. 254 
 
 Hendricks v. Robinson 
 
 Henriques v. Hone 
 
 Henry v. Morgan 
 
 Hepburn v. Auld i. 134. 244. 253. 
 
 276. 353. 355. 366 497. 500. 503 
 
 V. Dunlop i. 244. 248. 
 
 253. 500. 503 ; ii. 4 
 
 Page 
 ii. 261 
 i. 384 
 ii. 3 
 i. 181 
 i. 298 
 i. 197. 308 
 ii. 119 
 i. 626 
 i. 616 
 
 Herbert v. Wren 
 Herd v. Bisseil 
 Heyer v. Deaves 
 Higbee v. Rico 
 Higginbotham v. Burnett 
 Higginson v. Clowes 
 
 V. Fabre 
 
 Hildreth v. Sands 
 Hill V. Buckminster 
 Hine v. Dodd 
 Hitchcock V. Giddings 
 Hobby V. Finch 
 Hodgson V. Butts 
 Hoffman v. Smith 
 Holbrook v. Tirrell 
 Holliday v. Marshall 
 Hollingsworth v. Fry 
 Holmes V. Simons 
 
 V. Tremper 
 
 i. 434 
 i. 157 
 i. 73 
 ii. 144 
 i. 498 
 i. 192 
 i. 51 
 ii. 185 
 i. 171 
 ii. 319 
 i. 636 
 i. 104. 126 
 ii. 254 
 ii. 347 
 i. 289, 290 I 
 1. 94. 116 
 i. 258 
 i. 157. 161. 
 185 
 i. 40 
 Holridge v. Gillespie ii. 123. 127 
 Homes V. Brewer li- 259 
 
 Hose & Harrison v- Pierce ii. WO 
 Hoover V. DonnJ/y ii. 254. 313 
 
 Howard v. Easton 
 
 • V. Moffat 
 
 Howe V. Bass 
 HowelJ V. Baker 
 
 1. 96 
 
 ii. 196 
 
 i. 384 
 
 i. 322. 384 ; 
 
 ii. 123 
 
 Howes V. Barker i. 167. 279. 349. 1 
 
 629 
 Hubberd v. Savage 
 Huber v. Burke 
 Hudson V. Hudson 
 V. Swift 
 
 Hughes V. Edwards 
 V. Moore 
 
 1. 326 
 i. 302 
 31. 461 
 i. 296 
 ii. 126 
 ii. 163 
 
 Huntington v. Rumdeli 
 Hurt V. Anderson 
 
 I. 
 
 Irvin V. Thompson i. 120 
 
 Irvine v. Campbell ii. 62. 82. 340 
 Izard V. Montgomery i. 108 
 
 J. 
 
 Jackson v. Andrews 
 
 V. Barringer 
 
 V. Beach 
 
 V. Bowen 
 
 V. Buell 
 
 V. Bull 
 
 V. Burchin 
 
 V. Burgott 
 
 I. 
 
 a 
 
 - V. Carpenter 
 
 - V. Catlin 
 
 - V. Chase 
 
 - V. Clark 
 
 - V. Croy 
 
 - V. Cutright 
 
 - V. Defendorf 
 
 - V. Dego 
 
 - V. Dickenson 
 
 - V. Dysling 
 
 - V. Given 
 
 - V. Goes 
 ■ V. Green 
 
 V. Ham 
 
 V. Hammond 
 
 V. Harris 
 
 V. Hart 
 
 v. Hartwell 
 
 V. Henry ii. 185. 199,314 
 
 V. Holloway i. 222 
 
 V. Howell ii. 355 
 
 V. Hubbard ii. 256 
 
 V. Jackson ii. 119 
 
 V. Kniffen i. 194 
 
 ii. 324 
 i. 384 
 ii. 119, 120 
 i. 157. 182 
 i. 91 
 ii. 87 
 ii. 121 
 ii. 254, 255. 
 319 
 ii. 121 
 i. 96. 126 
 i. 641 
 ii. 65 
 i. 157 
 1.38. 146 
 i. 384 
 i. 541 
 ii. 325 
 i. 98 
 255. 313 
 i. 181 
 i. 311 
 ii. 185 
 ii. 120 
 ii. 87 
 i. 181 
 ii. 120
 
 Ixxvi 
 
 INDEX TO AMERICAN CASES. 
 
 Jackson v. Lunn 
 
 V. Martin 
 
 • V. Matsdoif 
 
 -■ V. Mills 
 
 V. Moore 
 
 V. Morse 
 
 V. Neely 
 
 V 
 
 Page 
 
 ii. 119, 120 
 ii. 87 
 
 ii. 153. 165 
 ii. 153 
 i. 542 
 ii. 153 
 ii. 242 
 
 Pierce i. 135 541, 542 
 V. Pike ii. 355 
 
 V. Potter i. 220. 222 
 
 V. Schoonmaker i. 466 
 V. Sellick i. 464 
 
 V. Sharp ii- 254. 320 
 
 V. Sill i. 157. 171. 183 
 
 n. 
 
 V. Sisson 
 
 V. Stagg 
 
 V. Stanley 
 
 V. Sternbergh 
 
 V. Stevens 
 
 V. Titus 
 
 V. Todd 
 
 V. Valkenburgh 
 
 V. Van Dalfsen 
 
 V. Vanderheyden 
 
 V. Van Slyck 
 
 V. Walsh 
 
 V. Woolsey 
 
 James v. Johnson 
 
 V. M'Credie 
 
 Jarvis v. Rogers 
 Jenkins v. Hogg 
 
 V. Reynolds 
 
 Jennings v. Camp 
 Jewett V. Palmer 
 Jeggets V. Maney 
 
 Johnson v. Catlin 
 
 V. Hauley 
 
 V. Hobson 
 
 V. Ronald 
 
 V. Stagg 
 
 V. Wygant 
 
 JoUand v. Stainbridge 
 
 Jollifie V. Hite 
 
 Jones V. Carter 
 
 V. Caswell 
 
 V. Gardner 
 
 V. Hake 
 
 V. Hubbard 
 
 V. Peterman 
 
 V. Statham 
 
 Jordan v. Sawkins 
 
 Judson V. Wass 
 
 K. 
 
 Pa<!e 
 
 Kane v. Bloodgood i. 470 
 
 Kauffelt V. Bower ii. 73 
 
 Kay V. Brookman i. 288 
 
 Keating V. Price i. 159. 174 
 Keisselbrack v. Livingston i. 189 
 
 Kelley V. Bradford i. 253. 411 
 
 y. Rlunson 
 
 Kempshall v. Stone 
 
 i. 541 
 ii. 251 
 i. 181 
 ii. 153 
 
 104. 106 
 i. 117 
 ii. 121 
 ii. 319 
 ii. 123 
 i. 206 
 i. 541 
 
 ii. 143. 240 
 
 ii. 120. 133 
 
 ii. 25. 252 
 
 i. 51 
 
 ii. 251 
 
 i. 27 
 
 i. 99 
 
 i. 292 
 
 ii. 313 
 
 i. 220 
 
 i. 126 
 
 i. 220 
 
 i. 253 
 
 105. 108 
 ii. 337 
 i. 297 
 ii. 319 
 
 382. 384 
 i. 384 
 i. 31 
 i. 292. 297 
 ii. 345 
 i. 347 
 i. 135, 136 
 i. 192 
 i. 173 
 35. 349. 423. 
 628 
 
 Kennedy v. Fury 
 
 V. Johnson 
 
 V. Nedrow 
 
 V. Woolfolk 
 
 Kennon v. M 'Roberts 
 Kent V. Welch 
 Keer v. Love 
 
 V. Porter 
 
 V. Shaw 
 
 Kidder v. Hunt 
 King V. Bardeau 
 
 V. King 
 
 V. Pyle 
 
 V. Riddle 
 
 Kirkpatrick v. Cisna 
 KnatchbuU v. Grueber 
 
 L. 
 
 i. 52 
 
 i. 244. 276. 
 
 498 
 
 i. 542 
 
 i. 249 
 
 i. 434 
 
 ii. 63. 67 
 
 i. 187 
 
 ii. 94. 106 
 
 i. 128. 131 
 
 i. 174 
 
 ii. 94 
 
 i. 138 
 
 i. 350 
 
 i. 183 
 
 i. 281 
 
 i. 138 
 
 ii. 345 
 
 i. 355 
 
 1. 
 
 1. 
 
 Lacey v. Wilson ii. 314 
 
 Lamar v. Jones i. 470 ; ii. 29 
 Laniber v. Nancy ii. 254 
 
 Lancing v. M'Pherson i. 74 
 
 Lansdown V. Lansdown i. 308, 309 
 Lattimove y. Harsent i. 159 
 
 Lavender v. Blackstone ii. 162 
 Lausenbury v. The Protection Ins. 
 
 Co. 
 Lawless v. Jones 
 Lawrence v. Monell 
 v. Beaubien 
 
 Lazarus v. Bryson 
 Lee v. Biddis 
 v. Munroe 
 
 Le Fevre v. Le Fevre 
 Leland v. Stone 
 Levy V. Bank U. S. 
 Lewis V. Gray 
 
 V. Maddisons 
 
 V. Payn 
 
 Lienow v. Elli.s 
 
 i. 294 
 
 i. 182 
 
 i. 83 
 
 i. 307 
 
 ii. 123 
 
 i. 157 
 
 i. 50 
 
 i. 160 
 
 i. 181 
 
 i. 309 
 
 i. 172 
 
 ii. 313 
 
 i. 289 
 
 ii. 89. 91
 
 INDEX TO AMERICAN CASES. 
 
 Page 
 
 Lightfoot V. Price ii. 20 ; 
 
 Lining v. Peyton ii. 36,37. 39 
 Little V. Henderson i. 157. 183^ 
 Livingston v. Byrne i. 319; ii. 300 I 
 
 V. Dean ii. 304 
 
 V. Hubbs ii. 211. 304 
 
 V. Livingston i. 225. 
 
 239 ; ii. S7. 190 
 
 V. Nevvkirk i. 215. 220 
 
 V. Ten Broeck i.l88, 189 
 
 ii. 23 
 i. 182 
 i. 244 
 i. 386 
 i. 191 
 i. 349 
 
 Pago 
 
 Marquis of Normanby v. Devon- 
 shire, Duke of i. 165 
 Marsliall v. Fisk i. 290 ; ii. 254 
 
 V. Sprott i. 172 
 
 Marston v. Hobbs i. 285 ; ii. 90. 94 
 Martin v. Smith i. 298 ; ii. 144 
 
 V. Willink 
 
 Masters v. Masters 
 
 Lloyd V. Scott 
 
 Loften V. Heath 
 
 Long V. Colston 
 
 Lunt V. Holland 
 
 Lyman v. United Ins. Co. 
 
 Lyon V. Annable 
 
 V. Richmond 
 
 M. 
 
 i. 308, 309 
 
 M'Allister v. Barry i. 249 
 
 M'Clintock v. Graham i. 40 
 
 M'Comb V. Wright i. 58. 123, 124. 
 
 410 
 M'Connal v. Dunlap 
 M'Crady v. Brisbane 
 M'Crery v. Wilson 
 M'Dermcd v. M'Castland 
 M'Dowel V. Teasdale 
 M'Dermot v. U. S. Ins. Co 
 
 u 
 
 366 
 
 88 
 
 119 
 
 i. 247 
 
 ii. 348 
 
 i. 157. 
 
 183, 
 35. 46 
 
 M'Fairan v. Taylor 
 M'Gregor v. Brown ii. 
 
 M'Guire v. M'Gowen ii. 123. 
 153 
 M'Keen v. Delancy 
 M'Kinney v. I^eacock 
 
 185 
 
 134 
 
 260 
 
 136. 
 
 162 
 
 i. 185 
 
 i. 172 
 
 1. 292 
 
 i. 183 
 
 ii. 62 
 
 174. 208 
 
 115. 301 
 
 ii. 345 
 
 i. 125 
 
 i. 182 
 
 i. 385 
 
 I. 221 
 
 ii. 85 
 ii. 123 
 
 i. 166 
 ii. 348 
 
 Mathews v. Dragaud 
 Matson v. Parkhurst 
 Maupin v. Whiting 
 Mayo V. Percell i. 374. 411. 642 ; 
 
 ii. 3. 
 Mayor of Alexandria v. Patten 
 
 i. 641 
 Mead v. Johnson i. 190 
 Meeks v. Richbourg ii. 120 
 Merrill v. Emery i. 295 
 Methodist Episcopal Ch. v. Ja- 
 ques i. 239, 240. ii. 28. 140. 
 173. 176 
 Middleton v. Eyre i. 
 V. Perry i. 181,182 
 
 M'Kennon V. Thompson i. 214. 220 
 M'Mechan v. Griffing ii. 259. 336 
 M'Milan v. Vanderlip 
 M'Mina v. Owen 
 M'Tear v. Buttorf 
 M'Teer v. Shepard 
 M'VVilliams v. Nisley ii 
 Mackay v. Rhinelander 
 Maclean v. Dunn 
 Mageehan v. Adams 
 Makepeace v. Bancroft 
 Mann v. Mann i. 157. 133, 184 
 Mann & Tolcs v. Pearson ii. 384 
 Marks v. Pell i. 193. 196 
 
 Milledge v. Samar 
 Miller v. Plumb 
 
 v. Blandist 
 
 Milling V. Crankfield 
 Millison V. Nicholson 
 Mills v. Goodsell 
 
 v. Griswold 
 
 Minsker and Bale v. 
 
 Mitchell v. Deroche 
 
 v. Hazen 
 
 v. Johnson 
 
 v. Warner ii. 
 
 MoncriefFv. Goldsborough 
 
 Monell V. Colden 
 
 V. Lawrence i. 66 : 
 
 107 
 
 190 
 
 i. 590 
 
 i. 41 
 
 i. 155 
 
 i. 157. 182 
 
 ii. 121 
 
 i. 250 
 
 ii. 346 
 
 IMorrison 
 
 i. 542 
 
 i. 543 
 
 ii. 90 
 
 i. 288 
 
 88, 89, 90, 
 
 91. 94 
 
 i. 23 
 
 n. 
 
 1. 34 
 328, 
 329 
 Moody V. Vandyke i. 221. ii. 123. 
 
 136 
 
 i. 461 
 
 ii. 23 
 
 i. 541 
 
 ii. 254 
 
 i. 149 
 
 ii. 23 
 
 i. 210 
 
 465. ii. 341 
 
 Moocrs V. 
 Moore v. 
 
 V. 
 
 V. 
 
 Morgan v. 
 V 
 
 White 
 M'Kay 
 Pearce 
 The Auditor 
 , Morgan 
 . Schermerhorn 
 
 Morris v. Buckley 
 V. Vaudercn i.
 
 Ixvviii 
 
 INDEX TO AMERICAN CASES. 
 
 Pa^'e 
 
 Morse V. Shattuck ii. 355 
 
 Moseley v. Buck i. 320 
 
 Movan v. Hays i. 157. 161. 170 ; 
 
 ii. 149 
 Mumford V. Halle tt i. 183 
 Munn V. Commission Co. i. 60 
 Mum-ov. Alaire i. 187 ; ii. 123 
 Munroe v. Perkins i. 159 
 Murray v. Bailou ii. 36. 141. 260 
 296. 307. 322, 323. 325. 340 
 V. Finsterii. 260.305. 307. 
 
 323. 357, 358 
 Murray v. Gouverneur ii. 304 
 
 V. Riggs ii. 311 
 
 V. Syiburn ii. 260. 303, 
 
 304. 325. 328 
 Mutual Ins. Soc. v. Stannard i. 616 
 
 N. 
 
 Nelson v. Carrington i. 279. 382 
 
 V. Dubois i. 1 17 
 
 V. Matthews i. 382. 389. 
 
 391 
 
 V. Oldfield i. 194 
 
 Nesbit V. Nesbit ii. 91 
 
 Neufville v. Mitchell i. 149 ; ii. 348 
 Newcomb v. Ramar i. 95 
 
 Newhall V. Wheeler i. 543 
 
 New-York Corporation v. Cash- 
 man ii. 100 
 NicoU V. Trustees of Huntington 
 ii. 28. 30 
 Niven v. Belknap i. 133. 135, 136 ; 
 
 ii. 300 
 Norcross v. Widgery ii. 255 
 
 Northorp v. Speary ii. 357 
 
 Northrup v. Northrup i. 297 
 
 Norton V. Hathaway i. 369. 372 
 
 V. Rose ii. 303 
 
 Nourse V. Prime ii. 22 
 
 Noyes v. Chapin i. 146 
 
 O. 
 
 Obermyer v. Nichols i. 292 
 
 O'Harra v. Hall i. 157. 172. 181. 
 183. 279 
 O'Connor v. Spaight i. 173 
 
 Orr V. Hodgson i. 245 ; ii. 65. 119 
 Osborne v. Bremar i. 353. 355 
 Osgood V. Franklin i. 316. 319. 
 321, 322, 323, 324, 325 
 
 Overseers 
 
 1. 
 
 208 
 
 i. 
 
 288 
 
 157. 
 
 181 
 
 Dunning 
 
 11. 
 
 120 
 
 i. 97. 
 
 105 
 
 i. 
 
 320 
 
 i. 
 
 297 
 
 u. 
 
 258 
 
 Overseers of Berlin 
 of Norwich 
 
 Page V. Mann 
 
 Paine v. M'Intier i, 
 
 Parish in Brunswick v. 
 
 Parker v. Bodley 
 
 V. Carter 
 
 V. Parmelee 
 
 V. Patrick 
 
 Parkhurst v. Van Cortlandt i. 105. 
 133, 134, 135, 136. 148, 149. 
 172. 203. 252 ; ii. 305 
 Parkist v. Alexander ii 
 Parsons v. Hooker 
 Parks v. Jackson 
 Paynes v. Coles 
 Pearce v. House 
 Pease v. Barber 
 Peay v. Briggs 
 Peck v. Randall 
 Peebles v. Reading 
 Penniman v. Hartshorn i 
 Penn v. Klyne 
 People V. Pleas and Clark 
 Perit v. Wallis 
 
 Perkins v. Wright i. 244, 246. 
 Perry v. Dixon ii. 
 Peters v. Goodrich i. 
 Phelps V. Ellsworth 
 Phillips V. Bridge 
 V. Chamberlaine 
 
 123. 253 
 
 i. 187 
 
 ii. 324 
 
 ii. 348 
 
 i. 461 
 
 i. 284 
 
 i. 383 
 
 i. 461 
 
 ii. 317 
 
 100.117 
 
 i. 541 
 
 . 601 
 
 ii. 20 
 
 247 
 
 ii. 123 
 
 i. 190 
 
 ii. 262 
 
 ii. 345 
 
 1. 
 
 v. Thompson i. 97. 
 
 134, 135. 137, 138. 140. 149 
 Phyfe v. Ward ell i 
 
 Pierson v. Hooker i 
 
 Pitcairn v. Ogbourne 
 Pitcher v. Livingston 
 Plankerhorn v. Cave 
 Pledger v. David 
 Plumer v. Robertson 
 Pollard v. Cartwright 
 
 V. Dwight 
 
 Poole v. Shergold 
 Porter v. Breckenridge 
 
 v. Noyes 
 
 v. Rose 
 
 Postell V. Postell 
 Powell V. Riddle i 
 v. Clark 
 
 195 
 
 133, 
 
 276 
 
 i. 203 
 
 i. 157 
 
 i. 193 
 
 i. 285 
 
 i. 206 
 
 ii. 190 
 
 ii. 316 
 
 ii. 300 
 
 ii. 90 
 
 i. 355 
 
 ii. 304 
 
 i. 423 
 
 i. 293 
 
 i. 229 
 
 ISl. 188 
 
 i. 384
 
 INDEX TO AMEUICAN CASES. 
 
 Ixxix 
 
 Page 
 
 Pratt V. Canoll i. 495. 497, 498 
 
 V. Law i. 134. 496, 497,498 
 
 Preston v. Crofut ii. 185 
 
 Price V. Price i. 355 
 
 Priest V. Rice ii. 259. 336 
 
 Pringle v. Samuel i. 191. 369 
 
 V. Witten i. 384 ; ii. 94 
 
 Pryor v. Adams ii. 348 
 
 Punderson v. Brown i. 615 
 
 Putnam v. Westcot i. 349 
 
 Q- 
 
 Quackenboss v. Lansing i. 292 
 Quarles v. Lacy i. 73 
 
 Quesnel v. Woodlief i. 382, 383 
 
 R. 
 
 . Ramsay v. Brailsford i. 248. 293. 
 
 500 
 Raymond v. Bearnard i. 349 
 
 Readc v. Livingston ii. 190. 195 
 Reading v. Weston i. 196 ; ii. 159 
 Redwood v. Reddick i. 469 
 
 Reed v. Carter i. 64 
 
 Reigal v. Wood ii. 298 
 
 Revere v. Ijconnrd i. 157. 183. 
 
 188 
 Rice V. Peet i. 96 
 
 Richards v. Allen ii. 155 
 
 V. Dutch i. 196 
 
 V. Killam i. 157 
 
 Ricker v. Kelley i. 91 
 
 Riden v. Frion i. 464 
 
 Ilidgeley v. Carey ii. 62 
 
 V. Gartrell i. 622 
 
 Ried V. Colcock ii. 345 
 
 Riggs V. Denniston ii. 346 
 
 V. Murray ii. 209 
 
 Riker v. Kelley i. 91 
 
 Roach V. Rutherford i. 253. 411. 
 
 413 
 Robb V. Montgomery i. 192 
 Robert v. Garnie i. 641 
 Roberts v. Anderson ii. 199 
 V. Stanton ii. 254, 255. 
 
 298 
 Robertson v. Ewell ii. 67 
 Robinson v. Cropsey i. 311 
 Rodriguez v. Haffernan ii. 304 
 Rogers v. Dickens i. 193 
 V. Hurd ii. 121 
 
 Rogett V. Merritt 
 Ross V. Norvell i. 157. 
 Rothmahler v. Myers i. 
 Rothschild v. Brookman 
 Rowton V. llowton 
 Rugge V. Ellis i. 
 
 Rundle v. Etwein 
 
 V. Murgatroyd ii. 
 
 Rjmey v. Edmands 
 Russell V. Clayton 
 V. Lewis 
 
 Rutherford v. Ruff 
 S. 
 
 Page 
 
 i. 100 
 
 181. 208 
 
 166. 183 
 
 i. 249 
 
 i. 148 
 
 247. 317 
 
 i. 621 
 
 190. 196 
 
 ii. 159 
 
 i. 627 
 
 ii. 164 
 
 i. 246 
 
 St. John V. Benedict i. 246 
 
 Sally V. Sandifie i. 176 
 
 Sampson v. Sampson ii. 165 
 
 Sandford v. Button i. 461. 464 
 
 V. Roosa i. 622 
 
 Sargeant v. Ballard i. 398 
 
 Saundcr.s v. Wakefield i. 99 
 
 Sayers v. Whitfield ii. 22 
 
 Schemerhorn v. Vanderheyden 
 
 i. 166 
 Schieffelin v. Stewart ii. 141 
 
 Scot V. Gibbon ii. 196 
 
 V. M'Farland i. 97 
 
 V. Wharton i. 262 
 
 Sedgwick v. HoUenback ii. 94. 96 
 Sessions v. Barfield i. 157. 171. 187 
 Seton V. Slade i. 99 
 
 Seymour v. Bull ii. 52 
 
 V. Delancy u 245, 246 
 
 Sexton V. Wheaton ii. 185 
 
 Sharper. Gibson i. 164 
 
 Sheaffe v. O'Neal ii. 119 
 
 Shearer v. Fowler i. 629 
 
 Shelton v. Shelton i. 185 
 
 Shepard v. Little i. 156 ; ii. 357 
 
 V. M'Evers ii. 307 
 
 Sherburne V. Fuller i. 134. 140 
 Shermer v. Shermer i. 187 
 Sherwood v. Salmon i. 369. 372 
 Shirras v. Caig ii. 261 
 Shotwell V. Murray i. 307. 309 
 Shubrick v. Guerard i. 262 
 Simmons v. Cornelius i. 155 
 Simon V. Brown ii. 254 
 V. Gibson ii. 307 
 
 Simonds v. Catlin i. 96. 126, 127 
 Sims V. Lewis i. 276 ; ii. 116 
 
 Skinner v. Dayton i. 260
 
 Ixxx 
 
 INDEX TO AMERICAN CASES. 
 
 Page 
 
 S!ee V. Manhattan Company 
 
 i. 196 
 i. 185 
 i. 297 
 i. 260 
 i. 626 
 128. 129. 
 
 Sleght V. Hartshorne 
 S locum V. Despard 
 Slosson V. Beadle 
 Smede v. Elmendorf 
 Smith V. Brailsford i. 
 
 V. Brush 
 
 — V. Buitis 
 
 — V. Ediington 
 
 — V. Evans 
 
 — V. Fenner 
 
 — V. Kniskern 
 
 — V. Lane 
 
 — V. Patton i. 
 
 132. 135 
 
 ii. 347 
 
 i. 462 
 
 i. 220 
 
 i. 384. 389 
 
 i. 157. 194 
 
 i. 434 
 
 ii. 154 
 
 133. 136. 136. 
 
 138. 146. 542 ; ii. 158 
 
 V. Williams i. 170. 190 
 
 Snelgrove v. Snelgiove i. 434 ; ii. 
 352, 353. 359, 360, 361, 362 
 Snelling v. Utteiback ii. 153, 154 
 Snow V. Chapman i. 384 
 
 Snyder v. Snyder i. 157. 170. 182 
 Somerville v. Trueman i. 497 ; 
 
 ii. 301 
 Somes V. Brewer ii. 257 
 
 South CaroUna Soc. v. John- 
 son i. 157 
 Southgate v. Taylor ii. 140 
 Souverbye v. Arden i. 18S, 191 
 Speake V. United States i. 157. 
 
 174 
 
 i. 65 
 
 i. 469 
 
 i. 285 
 
 Spencer v. Champion 
 
 Spotswood V. Dundridge 
 
 Staats V. Ten Eyck 
 
 Stackpole v. Arnold i. 157. 170, 
 
 171. 181 ; ii. 159 
 
 Stadt V. Lill i. 99 
 
 State V. Gaillard i. 35 
 
 Steele v. Ellmaker i. 51 
 
 Steere v. Steere ii. 163 
 
 Steinhauer v. Witman i. 302 
 
 Stery v. Arden ii. 185. 187, 188. 
 
 190. 196. 199. 200.203. 335 
 
 Stevens v. Cooper i. 157. 164. 171. 
 
 174. 176. 178 
 
 V. Vancleve 
 
 Stewart v. Kip 
 Stith V. Barnes 
 Stockton V. Cook 
 Stoddart v. Smith 
 Storer v. Batson 
 v. Freeman 
 
 i. 194 
 ii. 345 
 
 i. 183. 185 
 i. 635 
 
 i. 352. 358 
 ii. 119 
 
 i. 157. 183 
 
 Storm v. Mann 
 Storms V. Snyder 
 Storrs V. Barker i. 
 Stouffer V. Coleman 
 Stoughton V. Lynch 
 V. Pasco 
 
 Stow V. Tift 
 Streator v. Jones 
 Strong V. Glasgow 
 V. Stuart 
 
 Stroud V. Lockart 
 Stuart V. Luddington 
 Stubbs V. King 
 Stuyvesant v. Tomki 
 Sullivan v. Bates 
 Sumner v. Yvilliams 
 Sutton V. Lord 
 Swaine v. Perine 
 Svveitzer v. Hummel 
 Ssvift v.Edson 
 Syler v. Eckhait 
 
 T. 
 
 Tabb v. Archer 
 Taber v. Penot 
 Table V. Archer 
 Taft V. Brewster 
 Talbot V. Bowen 
 Talliaferro v. Minor 
 Tantinger v. Pole 
 Tayloe v. Adams 
 Taylor v. Cole 
 
 V. Heriot ii. 
 
 V. Patrick 
 
 V. Tovvnsend 
 
 Telfair v. Telfair 
 
 Ten Broeck v. Livingston 
 
 350. 414 
 Thatcher v. Dinsmore 
 Thayer v. Wendell i. 59 
 
 
 Page 
 
 I. 
 
 262 
 
 
 i. 98 
 
 309; ii. 
 
 300 
 
 ii. 62. 67. 82 
 
 ii. 12 
 
 1. 
 
 326 
 
 i. 
 
 622 
 
 I. 
 
 170 
 
 i. 172. 
 
 208 
 
 
 196 
 
 11. 
 
 254 
 
 
 249 
 
 i. 
 
 208 
 
 ns 
 
 i. 98 
 
 ii. 
 
 348 
 
 
 1. 59 
 
 11. 
 
 258 
 
 ]. 
 
 434 
 
 i. 
 
 296 
 
 ii. 81- 
 
 i. 135, 
 
 136 
 
 Thigpen v. Balfour 
 Thomas v. Perry 
 
 V. Trustees, &c 
 
 Thompson v. Davenport 
 V. Davies 
 
 Gregory 
 Ketcham i. 157 
 
 i. 203 
 
 i.55 
 
 i. 203 
 
 ii. 240 
 
 i. 121 
 
 ii. 37 
 
 i. 69 
 
 ii. 65 
 
 ii. 300 
 
 185. 260 
 
 i. 246 
 
 i. 41 
 
 i. 259 
 
 i. 34 
 
 418. 423 
 
 i. 59 
 
 ii. 105 
 
 i.249 
 
 i. 384 
 
 i. 96 
 
 ii. 4 
 
 i. 31 
 
 i. 91 
 
 170. 
 
 491 
 v. Tod. i. 128. 132. 138. 
 
 258 
 
 v. White i. 157; ii. 156 
 
 Tiernan v. Wilson i. 64
 
 INDEX TO AMERICAN CASES. 
 
 Ixxxi 
 
 Tippits V. Walker 
 Togon V. Mooney 
 Tobe V. Hardy 
 Townsend v. Stangroom 
 Travis v. Waters 
 Treadvvell v. Bulkley 
 Troughton v. Johnston 
 Troup V. Wood 
 Trull V. Bigelow 
 Trustees of Louisville v. 
 
 of University v 
 
 mour 
 Tryon v. Mooney 
 Tunno v. Fludd 
 
 V. Trezevant 
 
 Tuttle V. Jackson 
 Twanley v. Henley 
 Tyler v. Bradt 
 4 V. Wilkinson 
 
 Page 
 
 i. 59 
 
 i. 96 
 
 ii. 81 
 
 i. 193 
 
 ii. 28 
 
 i. 157 
 
 i. 23 
 
 i. 31 
 
 ii. 257 
 
 Gray ii. 
 
 120 
 
 Gil- 
 
 ii. 24 
 
 i. 96 
 
 i. 369 
 
 ii. 190 
 
 ii. 323 
 
 ii. 94 
 
 ii. 144 
 
 i. 399 
 
 U. 
 
 Ulen V. Kittredge i. 117 
 
 Union Bank v. Emmerson i. 40. 42 
 
 United States v. Gurney ii. 20 
 
 V. Hor i. 326 
 
 V. Owen ii. 22 
 
 V. 
 
 Van Allen v. Vanderpool 
 Vanderkarr v. Vanderkarr 
 
 i. 51 
 ii. 94. 
 106 
 Vandervoort v. Smith i. 157 
 
 Van Eps v. Corporation of Sche- 
 nectady i. 353. 355. 629 
 Van Orden v. Van Orden i. 434 
 Verplank v. Sterry ii. 190 
 Vincent v. Huff i. 220 
 Voll v. Smith i. 156 
 
 W. 
 
 Wade v. Colvert 
 Wadsworth v. Ruggles 
 v. Wendell 
 
 1. 246 
 i. 197 
 i. 616 
 
 Wain V. Walters i. 99 
 
 Wainwright v. Read i. 34. 160, 
 161. 359. 384; ii. 4 
 Waldin v. Gratz i. 461 
 
 Waldo v. Long i. 285 
 
 Vol. I. K. 
 
 Walker v. Butz 
 Wallace v. Baker 
 V. Duffield 
 
 II. 
 
 Walley v. Walley 
 
 Wallis v. Wallis 
 
 Wamburzee v. Kannedy 
 
 V. Shall ett 
 
 Wilson 
 Winslow 
 
 — V. 
 
 — V. 
 
 Warden v. Adams 
 Washburn v. Merrills 
 
 Pago 
 
 ii. 323 
 i. 172 
 153,154. 
 176 
 ii. 256 
 i. 629 
 .466.469 
 ii. 162 
 i. 434 
 i. 315 
 ii, 337 
 166. 190. 
 194. 196 
 
 et al. v. Sproat i. 42 
 
 Waters v. Travis i. 266. 353. 358. 
 366. 383. 491. 495 ; ii. 349 
 Watlington v. Howley ii. 323. 328 
 Weaver v. Bentley i. 279. 348 
 Webb V. Evans i. 434 
 
 Webster & Ford v, Hoban i. 44. 
 
 69 
 Webster v. Woodford ii. 
 Weightman v. Caldwell 
 Wells et al. v. Banister 
 Trustees 
 
 V. Smith 
 
 Welman v. Lawrence 
 
 121, 122 
 
 i. 119 
 
 and 
 
 i. 42 
 
 i. 293 
 
 ii. 52 
 
 Wendell v. Van Rensselaer ii. 128. 
 
 300 
 Western v. Russell i. 99 
 
 Wetmore v. White i. 133. 135, 
 136. 138. 146 
 Whallon v. Kauffman ii. 104 
 
 Wheaton v. Wheaton i. 196 
 
 Wheeler v. Hughes ii. 304 
 
 Wheelwright v. Wheelwright i. 313 
 White V. Eagan i. 182. 190 
 
 V. Cassanave ii. 62. 67 
 
 V. Cox i. 246 
 
 V. Skinner i. 59 
 
 V. The City of Cincinnati 
 
 i. 400 
 Whitelocke v. Musgrave 
 Whitwell V. Wyer 
 
 Wigglesworth v. Steers 
 Wight mun v. Reside 
 Wilbur V. How 
 Wilcox V. Calloway ii 
 
 Wilkins v. Woodfin 
 Wilkinson v. Campbell 
 V. Scott 
 
 i. 288 
 
 i. 118 
 
 i. 246 
 
 ii. 47 
 
 i. 31 
 
 304. 307. 
 
 313 
 
 ii. 348 
 
 i. 51 
 
 ii. 355
 
 Ixxxii 
 
 INDEX TO AMERIGAN CASES. 
 
 Willam V. Nevil 
 Williams v. Peyton 
 
 V. Price 
 
 V. Wilkins 
 
 Page 
 i. 166 
 ii. 62 
 ii. 62 
 ii. 28 
 Williamson v. Dale i. 74 
 
 V. Gordon i. 539. 583 ; 
 
 ii. 296 
 Willington v. Gale i. 615 
 
 Willink V. Miles i. 641 
 
 Willis V. Bucher ii. 307 
 
 335. 340 
 Wilson V. Force i. 316 
 
 V. Graham ii. 65 
 
 Windham v. Chetwind ii. 85 
 
 Winston v. Johnson i. 616 
 
 Wiser v. Blachley i. 189 
 
 Witherspoon v. Anderson i. 628 ; 
 
 ii. 305 
 Witman v. Ely i. 302 
 
 Wolf V. Carothers i. 172 
 
 Wood V. Hudson i. 31. 74 
 
 Page 
 
 Woodford V. Pendleton ii. 88 
 
 WooUam v. Hearn i. 192 
 
 Work V. Hoofmagle i. 627 
 
 Worthington v. Hyllyer i. 387. 392 
 Wragg V. Comptroller Gen- 
 eral ii. 63 
 Wright V. Decklyne i. 32. 160. 161 
 Wyman v. The Mayor of New 
 York i. 400 
 
 Y. 
 
 Yancy v. Lewis 
 Yohe V. Barnet 
 Youst V. Martin 
 
 ii. 94 
 ii. 196 
 ii. 318 
 
 Z. 
 
 Zantinger v. Ketch i. 165 
 
 Zylstra v. Keith i. 191 ; ii. 348
 
 THE LAW 
 
 OF 
 
 VENDORS AND PURCHASERS 
 
 OF 
 
 ESTATES. 
 
 INTRODUCTION. 
 
 Moral writers insist («), that a vendor is bound, in 
 foro conscientm, to acquaint a purchaser with the de- 
 fects of the subject of the contract. Arguments of 
 some force have, however, been advanced in favor of the 
 contrary doctrine ; and our law does not entirely coincide 
 with this strict precept of morality (6). 
 
 If a person enter into a contract, with full knowledge 
 of all the defects in the estate, the question cannot arise : 
 scienlia enim utrinque pur pares facit contrahentes(^c). 
 
 So if, at the time of the contract, the vendor himself 
 was not aware of any defect in the estate, it seems that 
 the purchaser must take the estate with all its faults, and 
 cannot claim any compensation for them. 
 
 (a) Cic. de Off. 3. 13; Grotius de Jure Belli ac Pacis, 1. 2. c. 12, 
 s. 9 ; Puflendorf dc Jure Natursc et Gentium, 1. 5. c. 3. s. 2 ; Puffen- 
 dorf de Off. 1. 1. c. 15. s. 3; Valerius Maximus, 1. 8. c 11 ; et vide 
 Deuteronomy xxv. 14 ; Paley's Moral Philosophy, vol. 1. b. 3. oh. 7. 
 
 (6) Vide Infra, eh. 6. 
 
 (c) Grotius de Jure Belli ac Pacis, 1. 2. c. 12. s. 9. 3; Puffendorf 
 de Jure Natura; et Gentium, 1. 5. c. 3. s. 5. 
 
 VOL. \. 1
 
 INTRODUCTION. 
 
 2 
 
 And even if the purchaser was, at the time of the 
 contract, ignorant of the defects, and the vendor was 
 acquainted with them, and did not disclose them to the 
 purchaser ; jet, if they were patefit, and could have been 
 discovered by a vigilant man, no relief will be granted 
 against the vendor. 
 
 The disclosure of even patent defects in the subject of 
 a contract, may be allowed to be a moral duty ; but it 
 is what the civilians term a duty of imperfect obligation. 
 Vigilantibus, non dormientibus jura subveniunt, is an an- 
 cient maxim of our law, and forms an insurmountable bar- 
 rier against the claims of an improvident purchaser. 
 
 In this respect, equity follows the law. But it has 
 been decided, that if a vendor during the treaty, indus- 
 triously prevent the purchaser from seeing a defect which 
 might otherwise have easily been discovered, he is not 
 entitled to the extraordinary aid of a court of equity : and 
 it is conceived, that he could not even sustain an action 
 against a purchaser for a breach of the contract. 
 
 And if the vendor know that there is a late7it defect in 
 his estate, which the purchaser could not, by any attention 
 whatever, possibly discover, it is not clear that he is not 
 bound to disclose his knowledge, although the estate be 
 sold, expressly subject to all its faults(f/). 
 
 By the civil law, vendors were bound to warrant both 
 the title and estate against all defects, whether they were 
 or were not conusant of them. To prevent the incon- 
 veniences which would have inevitably resulted from 
 this general doctrine, it was qualified by holding, that if 
 the defects of the subject of the contract were evident, or 
 the buyer might have known them by proper precaution, 
 he could not obtain any relief against the vendor. 
 
 The rule of the civil law also was, ^^ simplex commen- 
 datio non obligat.'''' If the seller merely made use of those 
 
 (d) See post. eh. 6. s. 2.
 
 INTRODUCTION. 
 
 expressions, which are usual to sellers, who praise at ran- 
 dom the goods which they are desirous to sell, the buyer, 
 who ought not to have relied upon such vague expres- 
 sions, could not, upon this pretext, procure the sale to be 
 dissolved(e). 
 
 The same rule prevails in our law(y^, and has received 
 a very lax construction in favor of vendors. It has been 
 decided, that no relief lies against a vendor for having 
 falsely affirmed, that a person bid a particular sum for the 
 estate, although the vendee was thereby induced to pur- 
 chase it, and was deceived in the value(^). 
 
 Neither can a purchaser obtain any relief against a ven- 
 dor for false affirmation of value(A) ; it being deemed 
 the purchaser's own folly to credit a nude assertion of 
 that nature. Besides, vUlue consists in judgment and 
 estimation, in which many men differ. So, where a 
 church lease was described in the particulars of sale, as 
 being nearly of equal value with a freehold, and renew- 
 able every ten years, upon payment of a small fine, the 
 purchaser was not allowed any abatement in his purchase- 
 money, although the fine was very considerable, and it 
 was proved that the steward of the estate had remon- 
 strated with the vendor, before the sale, upon his false 
 description(i). And a statement in the particulars of an 
 advowson, that an avoidance of the preferment was likely 
 to occur soon, was held to be so vague and indefinite, 
 that the Court could not take notice of it judicially ; and 
 
 (e) 1 Dom. 85. 
 
 (/) Chandelor v. Lopus, Cro. Jac. 4. 
 
 (o-) 1 Roll. Abr. 101. pi. IG. See 1 Sid. 146 ; Kinnaird r. Lord 
 Dean, stated infra, n. ; Dawes v. King, 1 Stark. 75. 
 
 (/i) Harvey r. Young, Yelv. 20. See Duckenfield r. Whichcott, 2 
 Cha. Ca. 204; see Ekins r. Trcsham, 1 Lev. 102; reported 1 Sid. 
 146, by the name of Lcakins v. Clissel. 
 
 (t) Brown V. Fenton, Rolls, 23 June 1807, MS. ; S. C. 14 Yes. jun. 
 144.
 
 4 
 
 INTRODUCTION. 
 
 that its only effect ought to have been, to put the purchaser 
 upon making inquiries respecting the circumstances 
 under which the alleged avoidance Mas likely to take 
 place, previous to his becoming the purchaser(A:). So 
 a statement, that the property is uncommonly rich water 
 meadow land, will not annul the contract, although the 
 land is imperfectly watered(/). 
 
 But if a vendor affirm, that the estate was valued by 
 persons of judgment, at a greater price than it actually 
 was, and the purchaser act upon such misrepresentation, 
 the vendor cannot compel the execution of the contract 
 in equity(m), nor would he, it should seem, be permitted 
 to maintain an action at law for non-performance of the 
 agreement. 
 
 And a remedy will lie agffinst a vendor, for falsely 
 affirming that a greater rent is paid for the estate than is 
 actually reserved(n)(I); because that is a circumstance 
 within his own knowledge. The purchaser is not bound 
 
 (k) Trower v. Newcome, 3 Mer. 704. 
 
 (/) Scott V. Hanson, 1 Sim. 13. 
 
 (j/i) Buxton V. Cooper, 3 Atk. 383 ; S. C. MS. ; sec Partridge v. 
 Usborne, 5 Russ. 195 ; Small v. Atlwood, 1 You. Rep. 407, now in D. 
 P. upon appeal. 
 
 (n) Eikins r. Tresham, ubi sup. ; Lysney v. Selby, 2 Lord Raym. 
 1118; 1 Salk. 211, S. C. nom. Risney r. Selby; Dobell v. Stevens, 
 3 Barn. & Cress. 623 ; Small v. Attwood, 1 You. Rep. 40'. 
 
 (I) In the 1st vol. of Coll. of Deci:^. p. 332, the fallowing case is re- 
 ported : — An heritor having solemnly affirmed to his tacksman at setting 
 the lands, that there was paid, by the preceding tenants, for each acre, 
 a great deal more than really was paid, and thereby induced him to take 
 it at a very exorbitant rate, whereby he was leased ullra dimidium ; yet 
 continued to possess two years before he complained. The Lords 
 found the allegiance of circumvention and fraud, both in consilio and 
 in eventu,not sufficient to reduce the tack, and thai the tenant shoidd 
 have informed himself better what was the true rent, and not have relied 
 on the setter^s assertion, and ought to have tried the quality of the groimd, 
 and, his eye being his merchant, lie had no7ie to blame but himself, espe- 
 cially now that he had acquiesced two years. Kinnaird v. Lord Dean.
 
 INTRODUCTION. 5 
 
 to inquire farther : for the leases may be made by parol, 
 and the tenants may refuse to inform the purchaser what 
 rent they pay ; or the tenants may combine with the land- 
 lord, under whose power they frequently are, and so misin- 
 form and cheat the purchaser.- It has been decided also, 
 after great consideration(o), that a purchaser may recover 
 against a vendor for false aftirmation of rent, although he 
 did not depend upon the statement, but inquired what the 
 estate let for. Where it can be satisfactorily proved, 
 that the ])urchaser did not rely upon the vendor's assertion, 
 a jury would undoubtedly give but trifling damages. 
 
 It seems that the same remedy will lie against a person 
 not interested in the property, for making a false representa- 
 tion to a purchaser of value or rent, as might be resorted 
 to in case such person were owner of the estate(/;) ; but 
 the statement must be mR^e. fraudulently, that is, with an 
 intention to deceive ; whether it be to favor the owner, 
 or from an expectation of advantage to the party himself, 
 or from ill-will towards the other, or from mere wanton- 
 ness, appears to be immaterial(^). 
 
 And in cases of this nature it w ill be sufficient proof of 
 fraud to show, first, that the fact, as represented, is false : 
 secondly, that the person making the representation had 
 a knowledge of a fact contrary to it. The injured party 
 cannot dive into the secret recesses of the other's heart, 
 so as to know w hether he did or did not recollect the fact ; 
 and therefore, it is no excuse in the party, who made the 
 representation, to say, that though he had received in- 
 
 (0) Lysney v. Selby, tihi sup. 
 
 (p) Pasley v. Freemen, 3 Term Rep. 51 ; Eyre v. Dunsford, 1 East, 
 318; Ex parte Carr, 3 Ves. & Bea. 108. 
 
 {q) Haycraft v. Creasy, 2 East, 92 ; Tapp v. Lee, 3 Bos. & Pull. 
 367 ; and see 6 Ves. jun. 186 ; 13 Yes. jun. 134 ; 12 East, 634, n. ; 
 Hutchinson v. Bell, 1 Taunt. 658 ; De Graves v. Smith, 2 Camp. Ca. 
 533 ; Foster v. Charles, 7 Bing. 1U6 ; S. C. 4 Moo. & P. 61 and 741 ; 
 Corbett v. Brown, 2 Mood. & Malk. 108 ; S. C 5 Carr. & P. 363.
 
 Q INTRODUCTION. 
 
 formation of the fact, he did not at that time recol- 
 lect it(7-). 
 
 A purchaser is not liable to an action of deceit for mis- 
 representing the seller's chance of sale, or the probability 
 of his getting a better price for his commodity than the 
 price which such proposed buyer ofrers(5). Nor is a 
 purchaser bound to acquaint the vendor with any latent 
 advantage in the estate : for instance, if a purchaser has 
 discovered that there is a mine under the estate, he is not 
 bound to disclose that circumstance to the vendor, although 
 he knows the vendor is ignorant of it(t). Equity will 
 not, however, interfere in favor of a purchaser who has 
 misrepresented the estate to any person who had a desire 
 of purchasing it(w). 
 
 And a very little is sufficient to affect the application 
 of this principle. If, it has been said, a word, a single 
 word be dropped which tends to mislead the vendor, that 
 principle will not be allowed to operate(a;). 
 
 And if a purchaser conceal the fact of the death of 
 a person of which the other is ignorant, and by which the 
 value of the property is increased, equity will set aside 
 the contract(y). 
 
 The same rules apply to incumbrances and defects in 
 the title to an estate, as to defects in the estate itself. 
 Both law and equity require the vendor to deliver to the 
 purchaser the instrument by which the incumbrances 
 were created, or on which the defects arise; or to ac- 
 quaint him with the facts, if they do not appear on the 
 title-deeds. If a vendor neglect this, he is guilty of a 
 
 (r) Burrowes v. Lock, 10 Ves. jun. 470, per Sir Wm. Grant, 
 (s) See Vernon v. Keys, 12 East, 632. 
 (0 See 2 Bro. C. C. 420. 
 
 (m) See Howard v. Hopkyns, 2 Atk. 371 ; Young v. Clerk, Prec. 
 Cha. 638. 
 
 (x) Per Lord Eldon, 1 Jac. 178. 
 {y) Turner r. Harvey, 1 Jac. 169.
 
 INTRODUCTION. 7 
 
 direct fraud, which the purchaser, however vigilant, has 
 no means of discovering : and Lord Hardwicke laid it 
 down(r), " that even if an attorney of a vendor of an 
 estate, knowing of incumbrances thereon, treat for his 
 client in the sale thereof, without disclosing them to the 
 purchaser or contractor, knowing him a stranger thereto, 
 but represents it so as to induce a buyer to trust his 
 money upon it, a remedy lies against him in equity(a) : 
 to which principle it is necessary for the court to adhere, 
 to preserve integrity and fair dealing between man and 
 man ; most transactions being by the intervention of an 
 attorney or solicitor." 
 
 The same observation applies, and indeed with much 
 greater force, to the attorney or agent of the purchaser. 
 It can seldom happen that the attorney or agent of the 
 purchaser is conusant of any incumbrance on the estate 
 intended to be purchased, unless he be employed by 
 both parties ; which the same person frequently is, in order 
 to save expense. This practice has been discountenanced 
 by the courts(6), and is often productive of the most 
 serious consequences ; for it not rarely happens, that there 
 are incumbrances on an estate which can be sustained 
 in equity only, and which will not bind a purchaser who 
 obtains the legal estate, unless he had notice of them 
 previously to completing his purchase. Now noticc(c) 
 to an agent, although one concerned for both parties, is 
 treated in equity as notice to the purchaser himself; and, 
 therefore, if the attorney know of any equitable incum- 
 brance, the purchaser will be bound by it, although he 
 himself was not aware of its existence. 
 
 (z) Per liord Hardwicke, 1 Ves. 96; and see 6 Ves. jun. 193; 
 liuriowes v. Lock, 10 Yes. jun. 470 ; and Bowles v. Stewart, 1 Sch. 
 and Lof. 227. 
 
 («) It seems clear that relief might now be obtained at law. 
 
 ib) See 6 Ves. jun. 631, n. 
 
 (c) Scetn/ra, ch. 17.
 
 INTRODUCTION. 
 
 And by these means, a purchaser may even deprive 
 himself of the benefit to be derived from the estate lying 
 in a register county : the register may be searched, and 
 no incumbrance appear ; yet, if the attorney have notice 
 of any unregistered incumbrance, equity will assist the 
 incumbrancer in establishing his demand against the pur- 
 chaser(6Z). 
 
 Another powerful reason why a purchaser should not 
 employ the vendor's attorney is, that if the vendor be guilty 
 of a fraud in the sale of the estate, to which the attorney 
 is privy, the purchaser, although it be proved that he was 
 innocent, will be responsible for the misconduct of his 
 agent(e). In one case^/}? a purchaser lost an estate, for 
 which he gave nearly 8,000/., merely by employing the 
 vendor's attorney, who was privy to a fraudulent disposi- 
 tion of the purchase money. 
 
 But it has been decided that the grantor of an annuity 
 is not bound to lay open to the intended grantee all the 
 circumstances of his situation : he is only bound to give 
 honest answers to questions put to him by the intended 
 grantee. If the grantee employ the grantor's attorney to 
 prepare the deeds, the mere preparation of the deeds 
 does not place him in a confidential relation towards 
 the grantee ; and as the agent of the grantor stands in 
 his situation, he is not bound to do more than his prin- 
 cipal(^). 
 
 With the exception of a vendor, or his agent, sup- 
 pressing an incumbrance, or a" defect in the title, it seems 
 clear, that a purchaser cannot obtain relief against a ven- 
 dor for any incumbrance, or defect in the title, to which 
 his covenants do not extend ; and therefore if a pur- 
 
 (d) See «!/'■«> ch. 16, 17. 
 
 (e) See Bowles v. Stewart, 1 Sch. & Lef. 227. 
 
 (/) Doe V. Martin, 4 Term Rep. 39 : Hicks v. Morant, 3 You. & 
 Jerv. 286 ; 2 Dow & Clark. 414. 
 
 (g) Adamson v. Evitt, 2 Russ. & Myl. 66.
 
 INTUODUCTION. 
 
 9 
 
 chaser neglect to have the title investigated, or his coun- 
 sel overlook any defect in it, it appears to be without a 
 remedj(/i). 
 
 To sum up the foregoing observations, — a purchaser is 
 entitled to relief, on account of any latent defects in the 
 estate, or in the title to the estate, which were not disclosed 
 to him, and of which the vendor, or his agent, was aware. 
 In addition to this protection afforded him by the law, 
 a provident purchaser will examine and ascertain the 
 quality and value of the estate, and not trust to the de- 
 scription and representation of the vendor or his agents ; 
 he will employ an agent and attorney not concerned for 
 the vendor, and will have the title to the estate inspected 
 hy counsel(I). 
 
 Where it is stated upon a sale, even by auction, that the 
 estate is in lease, and there is no misrepresentation, the pur- 
 chaser will not be entitled to any compensation, although 
 there are covenants in the lease contrary to the custom of 
 the country ; because, whoever buys with notice of a lease, 
 is held conusant of all its contents(z). This rule, it should 
 seem, ought, as between a vendor and purchaser, to have 
 been confined to a contract actually executed by the con- 
 veyance of the estate and payment of the purchase-money ; 
 but as the point has been thus decided, no person having 
 
 (A) See post, ch. 9. 
 
 (0 Hall V. Smith, Rolls, IS Dec. 1807, MS. ; S. C. 14 Ves. jim. 
 426 ; Walter v. Maunde, 1 Jac. & Walk. 181 ; Bairaud v. Archer, 2 
 Sim. 437. 
 
 (I) This can seldom be efTectually done, unless the abstract be care- 
 fully compared with the title-deeds : in doing which, the attention 
 should be particularly directed to the descriptions of the parties, the 
 recitals, the parcels, and the covenants for quiet enjoyment, free from 
 incumbrances ; which frequently lead to incumbrances and facts which 
 have been suppressed. This should be particularly attended to, as a 
 purchaser is bound by every deed or fact, to which an instrument in 
 his possession leads, by recital or description. See j)os/, cli. Hi. 
 
 VOL. I. 2
 
 10 
 
 INTRODUCTION. 
 
 notice of any lease, or that the estate is in the occupation 
 of tenants, should sign a contract for purchase of the estate 
 without first seeing the leases, unless the vendor will sti- 
 pulate that they contain such covenants only as are jus- 
 tified by the custom of the country. 
 
 With respect to incumbrances, it remains to remark, 
 that if a purchaser suspect any person has a claim on the 
 estate which he has contracted to buy, he should inquire 
 the fact of him, at the same time stating that he intends to 
 purchase the estate ; and if the person of whom the inquiry 
 is made has an incumbrance on the estate, and deny it, 
 equity would not afterwards permit him to enforce his 
 demand against the purchaserCjJ. 
 
 The inquiry should be made before proper witnesses ; 
 and as a witness may refresh his memory by looking at 
 any paper if he can afterwards swear to the facts from his 
 own memory, it seems advisable that the witnesses should 
 take a note of what passes(/c). 
 
 Where difficulties arise in making out a good title, the 
 purchaser should not take possession of the estate until 
 every obstacle is removed. Purchasers frequently take 
 this step, under an impression, that it gives them an ad- 
 vantage over the vendor ; but this is a false notion ; such a 
 measure would, in many cases, be deemed an acceptance of 
 the title (/), or would at least be a ground to leave it to 
 a jury, to consider whether the party had not taken pos- 
 session with an intention to wave all objections. Where 
 a purchaser, after delivery to him of the abstract, which 
 disclosed a reservation of a right of sporting not noticed in 
 
 (j) Ibbetson v. Rhodes, 2 Vein. 554 ; Amy's case, 2 Cha. Ca. 128, 
 cited. 
 
 {h) See Doc r. Peikins, 3 Term Rep. 749, and the cases there cit- 
 ed ; Burrough v. Martin, 2 Camp. 112. 
 
 (I) See 3 P. Wms. 193 ; Calcraft v. Roebuck, 1 Yes. jun. 226 ; 12 
 Ves. jun. 27 ; and Vancouver v. Bliss, 1 1 Ves. jun. 464.
 
 INTRODUCTION. 
 
 11 
 
 the particulars bj which he purchased, upon his applica- 
 tion was let into possession, and paid the greater part of 
 the purchase-money, without objecting to the right re- 
 served, and apologized for not sending the draft of the 
 conveyance, and afterwards raised the objection, he was 
 held bound by his conduct, which was considered as a 
 waver of the objection ; and although a clerk of the seller's 
 solicitor wrote in answer to the purchaser's application 
 for compensation, that a reasonable compensation would 
 be allowed, yet this was not deemed binding, as he had 
 no authority to make such an offer (?/i). 
 
 If, however, the objections to the title be remediable, 
 and the purchaser be desirous tp enter on the* estate, he 
 may in most cases venture to do so ; provided the vendor 
 will sign a memorandum, importing that the possession 
 taken by the purchaser, shall not be deemed a waver of 
 the objections to the title, or be made a ground for com- 
 pelling him to pay the purchase-money into court, in case 
 a bill be filed, before the conveyance to him is executed. 
 And a purchaser may, with the concurrence of the vendor, 
 safely take possession of the estate at the time the contract 
 is entered into, as he cannot be held to have waved ob- 
 jections, of which he was not aware ; and if the purchase 
 cannot be completed on account of objections to the title, 
 he will not be bound to pay any rent for the estate, un- 
 less perhaps the occupation of it has been beneficial to 
 him(7«). 
 
 A purchaser of any equitable right, of which immediate 
 possession cannot be obtained, should, previously to com- 
 pleting his contract, inquire of the trustee, in whom the 
 property is vested, whether it is liable to any incumbrance. 
 If the trustee make a false representation, equity would 
 
 (m) Burnell v. Brown, 1 Jac. & Walk. 168. 
 
 (n) Hearne v. Tomlin, Peake's Ca. 192 ; see Kirtland v. Pounsetl, 
 2 Taunt. 145 ; Stevens v. Guppy, 3 Russ. 171.
 
 12 INTRODUCTION. 
 
 compel him to make good the loss sustained by the pur- 
 chaser, ill consequence of the fraudulent statement(o). 
 When the contract is completed, the purchaser should 
 give notice of the sale to the trustee. The notice would 
 certainly affect the conscience of the trustee, so as to make 
 him liable in equity, should he convey the legal estate to 
 any subsequent purchaser ; and it would also give the 
 purchaser a priority over any former purchaser, or in- 
 cumbrancer, who had neglected the same precaution (^). 
 
 Auctioneers usually prepare the particulars and con- 
 ditions of sale ; but this a vendor should not permit, as 
 continual disputes arise from the mis-statements conse- 
 quent upon their ignorance of the title to the estate. 
 
 Where an estate has been in a family for a long time, 
 or the title has not been recently investigated, it will be 
 advisable for the owner to have an abstract of his title 
 submitted to counsel, and any objections which occur to it 
 cleared up, previously to a contract being entered into for 
 sale of the estate. By this precaution, the vendor will pre- 
 vent any delay on his part, which might impede the sale 
 from being carried into effect by the time stipulated ; and 
 will, in many cases, avoid the expense necessarily attend- 
 ing tedious discussions of a title. Another advantage is, 
 that if there should be any defect in the title which can- 
 not be cured, it would be known only to the agents and 
 counsel of the vendor. It is of the utmost importance 
 to keep defects in a title from the knowledge of persons 
 not concerned for the owner. It has frequently hap- 
 pened, that persons concerned for purchasers, have com- 
 municated fatal defects in a vendor's title, to the person 
 interested in taking advantage of them, by which many- 
 titles have been disturbed. 
 
 (o) Burrowes v. Lock, 10 Ves. jun. 470, 
 (jo) Vide infra, ch. 16.
 
 [ 13] 
 CHAPTER I. 
 
 OF SALES BY AUCTION AND PRIVATE CONTRACT. 
 
 1. Bv three acts(a) of his late Majesty's reign, a' duty 
 is imposed of Id. for every twenty shillings of the pur- 
 chase-money, which shall arise or be payable by virtue of 
 any sale at auction in Great Britain, of any interest in 
 i . possession or reversion, in any freehold, copyhold, or 
 leasehold lands, tenements, houses, or hereditaments. 
 
 But sales by way of auction, of estates under the decree 
 of the Court of Chancery, or Exchequer, in England ; or 
 of the Court of Session, or Exchequer, in Scotland(6), 
 are not liable to the duty ; nor do the acts extend to auc- 
 tions held on the account of the lord or lady of any manor, 
 for granting copyhold or customary lands, for lives or 
 years ; or to any auction held for the letting any estate 
 for lives or years to be created by the persons on whose 
 accounts such auctions shall be held(c)(I) : neither does 
 the duty attach upon the f)urchase-money of any estate 
 sold under a sheriff's authority, for the benefit of creditors, 
 in execution of any judgment ; nor to the purchase-money 
 of any bankrupt's estate, sold by order of the assignees 
 under any commission of bankruptcy (c^). And, lastly, 
 no auction duty is payable in respect of monies produced 
 
 (a) 27 Geo. III. c. 13. s. 36; 37 Geo. III. c. 14 ; and 45 Geo. 
 If I. c. 30. 
 
 {b) 19 Geo. III. c. 56. s. 13. 
 {c) Id. s. 14. 
 {d) Id. s. 15. 
 
 (I) This mode of letting estates, is adopted by the City of London, 
 and some other public bodies.
 
 14 OF SALES BY AUCTION 
 
 by sale of estates, sold by auction, for the redemption of 
 land tax(e). 
 
 By an order of Lord Rosslyn's(/), it is directed, that 
 upon application by a mortgagee of a bankrupt's estate, 
 the mortgaged estate shall be sold before the commis- 
 sioners, or by public auction, if they shall think fit. And 
 it has been decided(^), that a sale of a mortgaged estate 
 by auction, under this order, is liable to the auction duty, 
 and is not within the exception in the acts of sales of 
 bankrupts estates hij the order of the assignees. This de- 
 cision was made at nisi prius, and, perhaps, cannot be 
 supported. The Legislature intended that the creditors 
 of bankrupts should have the advantage of selling the 
 estates by auction without being charged with the auction 
 duty. Now this intention is, in the case under consider- 
 ation, clearly subverted by the decision in Coare v. Creed. 
 The argument was, that the sale was by the mortgagee, 
 and so not part of the bankrupt's estate. But if the 
 money produced by sale of the pledge is insufficient to 
 cover the mortgagee's debt, he of course resorts to the 
 general effects for a dividend on the residue. If the 
 pledge produce more, the surplus sinks into the general 
 fund ; so that assuming, as the Legislature clearly did, 
 that the auction duty is in substance a charge on the 
 land, it in this case takes so much from the bankrupt's 
 property, distributable for the benefit of his creditors. It 
 was considered to be clear, however, that where the estate 
 was sold by order of the assignees, with the consent of 
 the mortgagee, no duty would be payable. But it has 
 been decided, that a sale by assignees of an estate in fee, 
 which was in mortgage for a term of years, was liable to 
 the auction duty, because the assignees sold the whole 
 
 (e) 42 Geo. III. c. 116. s. 113. 
 
 (/) 4 Bro. C. C. at the end. 
 
 (g) Coare v. Creed, 2 Esp. Ca. 699.
 
 AND PRIVATE CONTRACT. J^ 
 
 estate, and they had only the equity of redemption(/i). 
 But the act of Parliament draws no such distinction. 
 Most bankrupts estates are in mortgage ; and the excep- 
 tion would indeed be illusory, if it only extended to estates 
 upon which there was no incumbrance. The simple 
 question, however, is, whether such a sale is not a bona 
 fide sale by order of the assignees ? It seems, indeed, 
 . to have been considered, that the mortgagee had the pro- 
 perty, and the bankrupt had only the equity of redemp- 
 tion. But, even at law, the bankrupt had the fee-simple 
 in reversion expectant upon the term of years in the 
 mortgage, and in eqjiity he was owner of the fee in pos- 
 session, subject to the debt. The case of the King v. 
 Abbott went far beyond the case of Coare v. Creed. To 
 avoid the effect of these decisions, assignees must, in 
 future, sell the estate subject to the mortgage. The pur- 
 chaser must, of course, pay off the mortgage ; and there- 
 fore, by the insertion of a few words in the particulars, 
 the creditors may obtain the relief which the Legislature 
 intended to grant them. 
 
 The words of the late act(i) are, that " all sales of 
 any real or personal estate of any bankrupt or bankrupts 
 shall not be liable to any auction duty," which may pro- 
 bably remove all difficulty upon this point. Since these 
 observations were published, the point came before the 
 Court of Exchequer upon a sale by auction, by assignees, 
 of the absolute interest in fee of an estate of the bank- 
 rupt in mortgage ; and it was held, that the duty was 
 not payable(y). Upon a writ of error in the Exchequer 
 Chamber the judges were divided in opinion, and the 
 judgment below was affirmed, in order that the question 
 
 (/i) Rex V. Abbott, Exchcq. Mich. T. 1816, MS. ; 3 Price, 178. 
 
 (t) 6 Geo. IV. c. 16. s. 98. 
 
 {j) Rex V. Winstanley, 3 You. & Jerv. 124. 2 Dow & Clark, 302.
 
 16 
 
 OF SALES BY AUCTION 
 
 might be disposed of in the House of Lords(A:), and there 
 the judgment has been affirmed(/). Two questions were 
 put to the judges: 1st. whether, when a trader, having 
 real estates under mortgage, becomes a bankrupt, and the 
 whole interests in the estates are sold, by order of the as- 
 signees, for the benefit of the creditors, and no concurrence 
 on the part of the mortgagees appears, the auction duty 
 is payable on the whole of the sum received for the 
 estates, or on any and what part of it : 2dly. AVhether^ 
 when a trader, having estates in mortgage, afterwards 
 conveys the estates to trustees, and then becomes bank- 
 rupt, and the whole interest in the estates are sold by the 
 assignees, with the concurrence of the trustees, it not ap- 
 pearing that the mortgagees were consulted, the auction 
 duty is payable on the whole or any part of the sum re- 
 ceived for the estates. 
 
 Mr. Justice Bayley delivered the unanimous opinion of 
 the judges, in answer to both questions, that the auction 
 duty was not payable on the whole or any part of the 
 sum ; observing, that if this had been a sale by the mort- 
 gagee, the matter might have stood on a different footing. 
 Lord Wynford observed that he was in the court below 
 when this case was decided there, and he differed in 
 opinion from the rest of the judges. He was happy to 
 say, however, that, upon fuller consideration, he was con- 
 vinced that they were right and he w^as wrong. His 
 puzzle was about the word estate, and whether the estate 
 in question, being in mortgage, could be considered as 
 the estate of the bankrupt. But he was now satisfied 
 that, speaking in ordinary language, this is the estate of 
 the bankrupt, clogged with the debt of the creditor. 
 The mortgage is merely a security, and every other in- 
 
 {k) 3 You. & Jerv. 126. 
 
 (/) 2 Crompt. & Jerv. 434 ; 2 Dow & Clark, 302.
 
 AND PRIVATE CONTRACT. 
 
 17 
 
 terest is in the bankrupt ; and therefore, upon a sale of 
 the estate by the commissioners or assignees, the sale is 
 exempt, under these acts of Parliament, from payment of 
 the auction duty. Suppose the bankrupt's funds should 
 not be sufficient to pay the creditors, after paying off the 
 mortgage, the loss must fall on the bankrupt's funds. 
 Suppose the whole subject should be s\a allowed up by 
 the mortgage, the mortgagee might say that he derived 
 no advantage from the sale beyond the mere payment of 
 his debt. Suppose a third case ; that the funds, after 
 payment of the mortgagee and the rest of the creditors, 
 should afford some small surplus for the unfortunate 
 bankrupt, yet the sale being a forced sale, came in prin- 
 ciple within the exemption under these acts. He had 
 his doubts as to the soundness of the present judgment, 
 looking to the decision in the case of the King and 
 Abbott; but he was now satisfied that the judgment 
 ought to be affirmed. Lord Tenterden observed that he 
 entirely agreed in the opinion of the Judges. There was 
 some difference in the language of the different acts 
 relating to this subject, which occasioned some doubts; 
 but the words of the statute of 19 Geo. 3. c. 56. s. 15. 
 are, " that nothing therein contained shall extend to 
 charge with auction duty any estate or effects of bankrupts 
 sold by order of the assignees under a commission of 
 bankruptcy." The words of the 43 Geo. 3. are much 
 the same ; and then came the case of the King and 
 Abbott. Then followed the Act of the 6 Geo. 4, which 
 enacted, " that all sales of any real or personal estate of 
 any bankrupt or bankrupts shall not be liable to any 
 auction duty ;" and the question is whether the estate 
 sold in this case was the estate of the bankrupt within the 
 meaning of these acts. Now, when we look at the words 
 of an act of Parliament, which are not applied to any 
 particular science or art, we are to construe them as they 
 
 VOL. 1. 3
 
 18 
 
 OF SALES BY AUCTION 
 
 are understood in common language ; and in ordinary 
 speech, the estate, although mortgaged, is still considered 
 as the estate of the mortgagor, and the interest of the 
 mortgagee as merely a security ; and, therefore, it ap- 
 peared to him, that, according to the true construction 
 of the words, this was the estate of the bankrupt within 
 the meaning of the act. If they were to be taken in any 
 other sense, the effect would be to diminish the bank- 
 rupt's estate applicable to the payment of the creditors, 
 by the amount of the duty. Upon the whole, it appeared 
 to him, that according to the intention and the words of 
 the act of the 6 Geo. 4, no auction duty was payable on 
 estates sold under such circumstances as the present. 
 
 The point therefore is decided against the liability to 
 duty where even the whole estate is sold, provided the 
 mortgagee do not join in the sale ; of course, his concur- 
 rence in the conveyance will not render the sale liable. 
 The point is still open where the mortgagee does concur 
 in the sale ; and therefore where the property is sufficient 
 in value to pay off the mortgage, the sale should be by 
 the assignees alone. 
 
 The auctioneer, agent, or seller by commission, is bound 
 to pay the auction duty, which he may deduct out of the 
 money he receives at the sale. If he receive none, he 
 may recover it from the vendor by action. 
 
 But if the owner of estates sold by auction, or any other 
 person on his behalf, buy in the same, without fraud or 
 collusion, no auction duty will become payable(m) ; pro- 
 vided notice be given in writing(w) to the auctioneer be- 
 fore such bidding, signed by the owner and the person 
 intended to be the bidder, of the latter being appointed 
 by the former, and having agreed accordingly to bid at the 
 sale for his use(o) ; and provided the delivery of such 
 
 (m) 19 Geo. III. c. 56. s. 12. 
 (n) 28 Geo. III. c. 37. s. 20. 
 (o) See a form of such notice, Appendix, No. 1.
 
 AND PRIVATE CONTRACT. 
 
 19 
 
 notice be verified by the oath of the auctioneer, as also 
 the fairness of the transaction, to the best of his know- 
 ledge. 
 
 Neither will the duty be payable where the estate is 
 bought in by, or by the order of the steward(p) or known 
 agent of tlie owner, actually employed in the manage- 
 ment of the sale of such estate ; but notice in writing of 
 his intention must be given by the steward or agent, if he 
 himself bid, or by him and the bidder, if he appoint a 
 person to bid(^) ; and the delivery of such notice must 
 be verified in the same manner as the delivery of a notice 
 given by the owner. And to exempt a vendor from pay- 
 ment of the duty, every notice must, at the time appoint- 
 ed by law for the auctioneer's passing his account of the 
 sale, be produced by the auctioneer to the officer author- 
 ized to pass the account of such sale ; and also be left 
 with the olficer(r). 
 
 It is not necessary that the sale should be a regular 
 auction. The acts apply to every mode of sale, whereby 
 the highest bidder is deemed to be the purchaser. There- 
 fore, where after an auction at which there was no bid- 
 ding, the seller's agent stated that he should be ready to 
 treat for the sale by private bargain, and the meeting 
 broke up ; and the agent shortly afterwards went into a 
 private room, with several of the persons who attended 
 the sale, and he stated that the highest offer above 50,000/. 
 would be accepted ; and offers were accordingly made to 
 him, and he having opened them, said that the one which 
 was the highest would be accepted, provided the terms of 
 payment could be adjusted, and these terms having been ad- 
 justed, the bargain was concluded the folloioing day ; this 
 
 {p) 42 Geo. III. c. 93. s. 1. 
 
 {q) See forms of such notices, Appendix, Nos. 2 and 3. 
 
 (r) 42 Geo. III. c. 93. s. 2.
 
 QQ OF SALES BY AUCTION 
 
 was held to be within the act. The agent put himself 
 under an obligation to treat with all the persons assem- 
 bled, and to give the estate to the highest bidder. The 
 question was not, whether this was what was usually 
 called a sale by auction, but whether for the purpose of 
 this act every thing must not be considered as such a sale 
 where the contract was with various persons, wdth an 
 engagement to let the highest bidder be the purchaser. 
 He might have taken any individual he pleased and con- 
 cluded a bargain with him ; that would have been a trans- 
 action of a different kind : but here he treated with a 
 number, and came under an engagement to accept the 
 highest offer (5). 
 
 Any thing in the nature of a bidding is \a ithin the acts ; 
 and therefore where the owner put the price under a 
 candlestick in the room (which is called a dumb bidding), 
 and it was agreed that no bidding should avail if not 
 equal to that, it was holden(^) to be within the acts ; as 
 being in effect an actual bidding of so much, for the pur- 
 pose of superseding smaller biddings at the auction. 
 
 Upon such a sale by candlestick biddings, as they are 
 denominated, where the several bidders do not know 
 what the others have offered, a bidding of so much per 
 cent, more than any other person has offered would be 
 binding on the person who makes h(u). 
 
 So biddings by several persons of sums marked upon a 
 paper are within the act(i;). 
 
 So in the case of a female auctioneer who continued 
 silent during the whole time of the sale, but whenever 
 any one bid, she gave him a glass of brandy : the sale 
 
 (s) Walker v. Advocate-General, 1 Dow, 111. 
 
 (/) See the case cited, 3 East, 340. Capp r. Tophani, infra. 
 
 (u) 3 Mer. 483, pey Lord Eldon. 
 
 (r) Attorney-General r. Taylor, 13 Price, 636.
 
 AND PRIVATE CONTRACT. 
 
 21 
 
 broke up, and in a private room he that got the last glass 
 of brandy was declared to be the purchaser. This was 
 decided to be an auction(i(;). 
 
 But to bring a bidding within the acts, the sum must 
 be named by the party eo ijituitu, with a view to the pur- 
 chase of the estate. Therefore, in the case of Cruso v. 
 Crisp(a:), it was decided, that piiitiiig vp an estate in lots 
 at certain prices was not a bidding within the acts ; but 
 this has since been doubted by Lord Eldon(y) ; and 
 althouo;h it would be difficult to hold the transaction to 
 be a sale within the act, yet of course, although the owner 
 intends only to put up the estate at a certain price, and 
 not to bid for it in case of an advance, a previous notice 
 of his intention should be given. 
 
 If an estate be bought in by the owner, and proper 
 notices were not given of his intention to bid, the sale 
 will be held real, and the duty must be paid, however 
 fair the transaction may be. The duty is made a charge 
 on the auctioneer, which he must pay if the proper notices 
 were not given. It is not given by way o^ penally. In 
 one case, an auctioneer who had neglected to require pro- 
 per notices was compelled to pay 5 or 6,000/. out of his 
 own pocket for the duty, although he had not received 
 any part of it from the owners, nor had charged any com- 
 mission, as the estates were not actually sold(z). 
 
 And a statement by an auctioneer to the vendor or his 
 agent, that he has done what is necessary to avoid pay- 
 ment of the duty, will amount to a warranty, although 
 the duty become payable, not by the default, but by the 
 ignorance or mistake of the auctioneer. 
 
 {v}) 1 Dow, 115. 
 (.r) 3 East, 337. 
 ((/) iDow, 114. 
 
 {z) Christie u. Attorney-General, 6 Bro. P. C. by Toml. 620 ; see 
 3 Yes. Jun. 625, n.
 
 22 
 
 OF SALES BY AUCTION 
 
 Thus, in the late case of Capp v. Tophani(«) an auc- 
 tioneer put up an estate, and by the conditions of sale 
 reserved a dumb bidding(6) to the owner, which was his 
 mode of saving the payment of the auction duty. The 
 owner's solicitor, with the privity of the auctioneer, 
 placed a ticket containing the price in figures, under a 
 candlestick, on a table in the auction-room. A person 
 who attended on behalf of the owner asked the auctioneer 
 if he had taken the proper precaution to avoid the duty 
 if there was no sale. The auctioneer said, it was his 
 mode to fix a price under the candlestick, and if the bid- 
 ding should not come up to the price there was no sale or 
 duty. There were several biddings, but under the price 
 fixed, and the auctioneer was compelled to pay the 
 duty(c). He then brought an auction against the owner 
 for recovery of the money as paid to his use ; but the 
 statements by the auctioneer were holden to amount to a 
 warranty, and judgment was given for the defendant. 
 Lord Ellenborough said, that even if there was no war- 
 ranty on the part of the auctioneer, and it was only a 
 mutual error between him and the vendor, he could not 
 call upon his companion in error for a contribution(</). 
 So that in cases of this nature the burden will remain 
 upon the person upon whom it is charged. And it even 
 seems to have been considered, that if an auctioneer, 
 through ignorance, adopt an improper mode of saving 
 the duty, upon an undertaking by the seller to save him 
 harmless, the duty must be paid by the auctioneer, and 
 he cannot recover under the undertaking, because it is 
 illegal to indemnify against penalties(e). But to this it 
 
 {a) 6 East, 392 ; 2 Smith, 443. 
 (6) Vide supra. 
 
 (c) See Christie t;. Attorney-General, uhi sup. 
 
 (d) See Farebrother v. Ansley, 1 Camp. N. P. 343. Jones r. 
 Nanney, 13 Price, 76. 
 
 (c) Ouen V. Parry, Sitt. West. Dec. 6, cor. Lord Ellenborough.
 
 AND PRIVATE CONTRACT. 
 
 23 
 
 may be objected, that the duty attaches as a charge, and 
 is not imposed as a penalty^/}* 
 
 If the vendor's title prove bad, the auction duty will 
 be allowed ; provided complaint thereof be made before 
 the Commissioners of Excise, or two justices of the peace 
 within whose jurisdiction such sale was made(^j, within 
 twelve calendar months after the sale, if the same shall 
 be rendered void in that time ; or otherwise within three 
 months after the discovery of the owner having no 
 tit\e(h). But the commissioners will not allow the duty 
 unless they think that the vendor has used his utmost 
 exertions to make a good title. An appeal, however, lies 
 from the judgment of the commissioners : but as the 
 King never pays costs, they fall upon the vendor, and in 
 many cases would amount to more than the duty itself. 
 Where the case is a bona fide one, and the title has been 
 rejected, the commissioners are bound to put a liberal 
 interpretation on the act. 
 
 II. According to Cicero(/), a vendor ought not to ap- 
 point a puffer to raise the price, nor ought a purchaser to 
 appoint a person to depreciate the value of an estate in- 
 tended to be sold.(l) And Huber lays it do\vn(y), that 
 if a vendor employs a puffer he shall be compelled to sell 
 the estate to the highest bona fide bidder ; because it is 
 against the faith of the agreement, by which it is stipulat- 
 ed that the highest bidder shall be the buyer. 
 
 ( f) Christie v. Attorney-General, 6 Bro. P. C. by Toml. 520. ei 
 supra. 
 
 {g) 19 Geo. III. c. 56. s. 11. 
 (/i) 28 Geo. III. c. 37. s. 19. 
 (0 De Off. 1. 3. 
 ij) Prselectiones, xviii. 2. 7. 
 
 (1) Moncrieffv. Goldsborough, 4 Har. & M'Hen. 282. Trough- 
 ton's Jldm. V. Johnson, 2 Haywood's Rep. 328. Donaldson v. J^VRoij, 
 Browne's Rep. 346.
 
 24 O*' SALES BY AUCTION 
 
 111 Bexwell v. Chrhtie(k), Lord Mansfield and the 
 other Judges of B. R. followed the rule of the civil law, 
 and treated a private bidding, by or on the behalf of the 
 vendor, as a fraud ; but the Legislature, by the subsequent 
 statutes imposing a duty on sales of estates by auction, 
 seems to have been of a different opinion, and even to have 
 sanctioned it. Lord Rosslyn, who was present at the 
 making of the act, remarked in the case of Conolly v. 
 Parsons, that(/) the acts of Parliament go upon its being 
 an usual thing and a fair thing for the owner to bid. The 
 pressure, when the tax was imposed, was by embarrassing 
 people, Avho chose to dispose of their goods by auction if 
 they chose to be purchasers, by the tax falling upon them. 
 His Lordship added, that he thought it would have oc- 
 curred either to Lord Thurlow or to him, when the ex- 
 ception in favor of the owner was proposed, that the case 
 would not exist, as the owner could not be a bidder ; or 
 that, for his attempting to do what he could not by law, 
 it would be just that he should pay the duty. It was 
 very wrong to the public to let that clause stand, if at the 
 time it was understood that the owner bidding was doing 
 an illegal thing. The acts do not require an open notice, 
 but only a private notice to the auctioneer, and an oath to 
 prevent the setting up a bidding for the owner that the 
 bidder might evade paying the duty. 
 
 Lord Kenyon, however, in the case of Howard v. Castle, 
 where the purchaser was the only real bidder, and there 
 were several puffers(wi), clearly coincided with Lord 
 Mansfield's opinion ; and held, that unless it was publicly 
 known that the owner intended to bid, it was a fraud upon 
 the purchaser, and consequently no action w^ould lie against 
 
 (k) H. 16. Geo. lil. Cowp. 395. 
 (/) See 3 Ves. jun. 628. 
 
 (m) 36 Geo. Ill ; 6 Term Rep. 642. See Twining v, Morris, 2 Bro. 
 C. C. 326 ; and see 3 Term Rep. 93, 95.
 
 AND PRIVATE CONTRACT. 
 
 25 
 
 him for non-performance of his agreement. The acts of 
 Parliament, he thought, did not intend to interfere with 
 this point, but to leave the civil rights of mankind to be 
 judged of as thej were before. And Grose, J. also ex- 
 pressed his opinion, that the doctrine was not in the least 
 impeached bj the acts of Parliament. 
 
 But in the case of Conolly y. Parsons(M), Lord Rosslyn 
 said, he fancied the foregoing case turned on the circum- 
 stance that there was no real bidder ; and the person re- 
 fused instantly. It was one of those trap auctions which 
 are so frequent in this city. The reasoning went large, 
 certainly, and did not at all convince him. He said, he 
 should wish it to undergo a re-consideration ; for if it was 
 law, it would reduce every thing to a Dutch auction, by 
 bidding downwards(I). He felt vast difficulty to compass 
 the reasoning, that a person does not follow his own judg- 
 ment because other persons bid ; that the judgment of one 
 person is deluded and influenced by the biddings of others. 
 
 (n) 3 Ves. jun. 625, u. 
 
 (I) A sale of this nature is thus conducted : The estate is put up at 
 a high price, and if nobody accept the offei', a lower is named, and so 
 the sum first required is gradually decreased, till some person close 
 with the offer. Thus there is of necessity only one bidding for the 
 estate, a mode of sale which, in this country, would attract few bidders. 
 In some counties in England a singular mode of sale of estates for 
 redemption of land-tax is adopted ; the auctioneer states the sum of 
 money wanted, and the number of acres to be disposed of, and the 
 person who will accept the least quantity of land for the sum required, 
 is declared the purchaser ; so that the persons bid downwards, until 
 some one name a quantity of land less than any other will take. 
 
 The manner of conducting sales by auction of the post-horse duties 
 is at once Dutch and English. The duties are put up at a large sum, 
 named in the particulars, and the sale is then conducted in the same 
 manner as a Dutch auction : but when any person actually bids, others 
 may advance on that bidding, and the highest bidder is declared the 
 purchaser ; just as if the sale had been conducted in the usual way. 
 
 VOL. I. 4
 
 26 
 
 OF SALES BY AUCTION 
 
 The facts of tlie case of Conolly v. Parsons do not appear 
 in the report ; but I learn, that there was a contest be- 
 tween real bidders, after the person employed to bid on 
 the part of the vendors had desisted from bidding. The 
 suit was compromised by the purchaser paying a con- 
 siderable sum of money to the vendor to release him from 
 the contract ; and consequently Lord Rosslyn did not give 
 judgment; but it seems he was clearly of opinion that 
 the sale was valid. 
 
 And in the later case of Bramley v. Alt(o), where an 
 estate was put up to sale by public auction, and an agent 
 for the vendor bid to 151. an acre, without public notice 
 of his intention to do so ; and after a contest with real bid- 
 ders the estate was bought at lOU. 175. an acre ; Lord 
 Alvanley, then Master of the Rolls, decreed a specific per- 
 formance with costs. And he concurred with Lord Rosslyn 
 in considering the case of Howard v. Castle only as a deci- 
 sion, that where all the bidders except the purchaser are 
 puffers, the sale shall be void. 
 
 In a subsequent case(p), it appeared that assignees 
 of a bankrupt had put up the estate to sale by auction. 
 It was proved that a bidder was employed on their parts 
 to bid up to, but not to exceed 750/., the sum for which 
 the estate was actually sold. The Master of the Rolls 
 held, that the assignees had not committed any fraud, 
 they did not employ the bidder for the purpose, generally, 
 of enhancing the price, but merely to prevent a sale at an 
 undervalue, and they stated, previously, what they con- 
 ceived to be the true value, below which the lot ought not 
 to be sold. His Honor treated the case of Howard v. 
 Castle as having proceeded on the ground of plain and 
 direct fraud, and said, that in a similar case he should 
 come to a similar conclusion. 
 
 By these decisions, therefore, it was settled, that 
 
 (o) 3 Yes. jun. 620. 
 
 ip) Smith V. Clarke, 12 Yes?, jun. 477.
 
 AND PRIVATE CONTRACT. 
 
 27 
 
 a bidder may be privately appointed by the owner in 
 order to prevent the estate from being sold at an under- 
 value ; and that if there were real bidders at a sale, 
 it must be supported, although the bidding immediately 
 preceding that of the purchaser was fictitious(9') ; and that 
 where public notice has been given, the contract will be 
 binding on the purchaser, although there was no contest 
 between real bidders ; but only the purchaser and the 
 person employed to bid, bid against each other(r). It 
 should ^eem that consistently, with the above authorities, 
 the rule would be the same, even where public notice 
 had not been given, provided the bidder w^as appointed 
 only to protect the vendor's interest.(2) 
 
 But where a person is employed, not for the defensive 
 precaution, with a view^ to prevent a sale at an under- 
 value, but to take advantage of the eagerness of bidders 
 to screw up the price, that will be deemed a fraud(5). 
 
 Neither do the cases authorize the vendor to appoint 
 more than one person on his behalf. It seems highly pro- 
 per that a vendor should be permitted to appoint a person 
 to guard his interests against the intrigues of bidders ; but 
 it does not follow that he may appoint more than one. 
 The only possible object of such a proceeding is fraud. It 
 is simply a mock auction ; and, notwithstanding Lord 
 
 (,/) Smitli r. Chuko, 12 Yes. juii. 477. 
 
 ()•) Oldficld V. Round, 5 Ves. jnn. 608. 
 
 (s)^See 12 Ves. jiin. 483. In Fitzgerald v. Forster, 31st July, 1813, 
 the Vice-Chancellor seemed rather to be of opinion that the appoiiit- 
 nieut of one putier wa?, in no case, bad. 
 
 (2) In Soulh Carolina, it has been decided that a person may bo em- 
 ployed to bid on the part of the vendor, at a public sale of lands ; and 
 the purchaser at such sale will be compelled to complete the purchase, 
 although he had no notice that such person was so employed, and the 
 price at which the land was knocked down, was, by such means, en- 
 hanced much beyond its real value. Jenkins v. Hogg, 2 Const. Rep. 
 821.
 
 Og OF SALES BY AUCTION 
 
 Rosslyn's impression, it is universallj felt and acknow- 
 ledged, that the judgments of most men are deluded and 
 influenced by the biddings of others. As far as any aid is 
 sought from the auction-duty acts, in support of private 
 biddings on behalf of the owner, it is clear that they do 
 not authorize or sanction the appointment of more than one 
 person. In the report of Conolly v. Parsons it is stated, 
 that persons were employed to bid, and did bid for the 
 vendors ; but the fact is, that one person only was employ- 
 ed by them, and actually bid on their behalf. The Master 
 of the Rolls observed, in the late case of Smith v. Clarke, 
 that he did not see, that if several bidders were employed 
 by the vendor, in that case, a court of equity would com- 
 pel the purchaser to carry the agreement into execution ; 
 for that must be done merely to enhance the price. It 
 was not necessary for the defensive purpose of protection 
 against a sale at an undervalue(/). 
 
 In a later case upon this subject, Lord Tenterden held 
 clearly that the sale was void in point of law, as two per- 
 sons had been employed to bid, although they were both 
 limited not to go beyond the same fixed sum. The cur- 
 rent of authority, therefore, is clearly against the validity 
 of such a sale(M). 
 
 In the same case, the learned Judge also expressed his 
 opinion, that if only one person be appointed to bid, with 
 a view to save the auction duty, the sale is void, unless it 
 be announced that there is a person bidding for the owner. 
 The act itself is fraudulent : the statute was made for a 
 different purpose, with a view to the duty only, and can- 
 not be made to sanction what is in itself fraudulent. 
 
 And this opinion has since been followed in the Exche- 
 quer, where upon a sale by the Crown of an estate seized 
 under an extent, it was stipulated, that " on the part of 
 
 {t) See 12 Ves. jun. 483 ; and see 8 Term Rep. 93. 95. 
 (m) Wheeler v. Collier, 1 Mood. & Malk. 123.
 
 AND PRIVATE CONTRACT. 
 
 29 
 
 the Crown, Mr. E. Driver should be at liberty to make 
 one bidding, but no more, and if the highest bidder, the 
 sale to be void ;" and a puffer was employed at the auc- 
 tion by Mr. Driver, the agent for the Crown ; the court 
 held that the sale was not binding upon the purchaser. 
 The Court considered it clear, that in an ordinary case 
 the employment of a puffer vitiated the sale, and there 
 was no reason why the Crown should be subject to a 
 different rule(?;). But we cannot fail to perceive that in 
 this last case the condition was pregnant with a negative, 
 that no puffer should be employed. The strong leaning 
 of the courts, however, is at present against the validity 
 of a sale where even a single puffer is employed, although 
 after the decisions to the contrary upon this point, which 
 are daily acted upon, it would be difficult to come to such 
 a conclusion, except in the House of Lords. 
 
 Although an original purchaser will not be bound 
 where a fraud has been practised in the biddings, yet if he 
 transfer his contract, a strong case of fraud must be made 
 out against the original purchaser, to enable the court to 
 give the benefit of it to his assignee, who was not induced 
 through competition to give the price(i;). 
 
 If the particulars or advertisements state (as they fre- 
 quently do) that the estate is to be sold without reserve, 
 it seems clear that the sale would be void against a pur- 
 chaser, if any person were employed as a puffer, and actu- 
 ally bid at the sale. This was actually decided in the late 
 case of Meadows v. Tanner(it;). The Vice-Chancellor 
 said, that the plain meaning of the words without reserve, 
 in a particular of sale, is, that no person will be employed 
 to bid on behalf of the vendor for the purpose of keeping 
 
 (v) 3 You. and Jer. 331, and see Crowdcr v. Austin, 3 Bing. 368, 
 11 Moo. 283. 
 
 (r) See 12 Ves. jun. 484. 
 (tr) 5 Madd. 34.
 
 30 OF SALES BY AUCTION 
 
 up the price ; and that the vendor could have no claim to 
 the aid of a court of equity to enforce a contract against 
 the purchaser, into which he might have been drawn by 
 the vendor's want of faith. 
 
 It is generally understood, that some person will bid on 
 the part of the owner ; and it therefore seems to deserve 
 consideration, whether it would not, in most cases, be ad- 
 visable to give public notice of the owner's intention pre- 
 viously to the sale. Where public notice is given, the 
 mode least liable to objection seems to be that of i:eserving 
 a bidding, or stipulating in the conditions of sale, that the 
 owner may bid once in the course of the sale(.T). It may 
 here, however, be proper to observe, that buying-in an 
 estate, especially where it is done without public notice, 
 mostly prejudices a future sale. This was exemplified in 
 the sale of an estate before one of the Masters in Chancery, 
 where 23,000/. was bona fide bid, and the estate was 
 bought in by the agent of the vendor ; afterwards there 
 were three other sales in the Master's office ; and the con- 
 sequence of the estate having been bought-in deterring 
 others from bidding, was, that on the two first occasions 
 no more was offered than 12,000/. and 6,000/. ; and the 
 estate finally sold for 1 5,000/. (?/) 
 
 On the other hand, if a purchaser by his conduct 
 deter other persons from bidding, the sale will not be 
 binding. Thus, where upon a sale by auction of a barge, 
 a bidder addressed the company present, saying he had 
 a claim against the late owner, by whom he said he had 
 been ill used, whereupon no one offered to bid against 
 him ; but the auctioneer refusing to knock down the 
 property to a single bidding, a friend of the bidder's 
 bade a guinea more, and the first bidder then made a 
 
 {x) See Cowp. 397. 
 
 (y) See 6 Ves. jun. 629 ; Wren v. Kirton, 8 Ves. jun. 502 ; and see 
 Twining r. Morris, 2 Bro. C. C. 326.
 
 AND PRIVATE CONTRACT. 
 
 31 
 
 second and higher bidding, amounting, however, to only 
 one fourth of the prime cost of the barge ; it was held 
 that there was no legal sale(2:). (3). 
 
 III. The particulars and conditions of sale(rt) next 
 claim our attention. 
 
 It seems that the Judges will so construe them as to 
 endeavor to collect the meaning of the parties, without 
 
 {z) Fuller I'. Abrahams, 3 Brod. & Bing. 116 ; S. C. 6 Moo. 316. 
 (o) See a form of them, App. No. 4. 
 
 (3) Where there was an agreement by the owner of an execution, 
 with certain other person?, to prevent the usual competition at a sheriff's 
 sale, in order to leave a balance on the execution, for the -purpose of 
 seizing other lands of the debtor, whereby the property was sold for a 
 mere nominal price, it was held, that the sale was void. Troup v. 
 ^Vood, 4 Johns. Ch. Rep. 228, 254. See Brodie v. Seagroves, 2 
 riayw. 70. 
 
 So, where two persons, being desirous of purchasing certain articles 
 advertised for sale at auction, agreed not to bid against each other, but 
 that one of them should bid in the property, which should be divided 
 between them, it was decided, that such agreement was without con- 
 sideration and void, and against public policy. Doolin v. Ward, 6 
 Johns. Rep. 194. See Wilbur v. Hou-, 8 Johns. Rep. 346. 2d edit. 
 Thompson v. Davits, 13 Johns. Rep. 112. Jones v. Casivell, 3 Johns. 
 Cas. 29. 
 
 So, a purchase, by an executor or administrator, of the estate of the 
 testator or intestate, where others were deterred from bidding in con- 
 sequence of doubts as to the title, suggested by the purchaser, whereby 
 he obtained the property at an undervalue, will be annulled in equity. 
 Hudson V. Hudson, 5 Munf 180. See Wood's Exr. &c. v. Hudson, 5 
 Munf. 423. 
 
 And where the advertisement of a sale, contains an assertion which 
 is false, as, that the land is to be sold for the satisfaction of three mort- 
 gages, when there are hoo only, by which purchasers may be deterred 
 from bidding, the sale will be deemed irregular and void. Burnet v. 
 Denniston, 5 Johns. Ch. Rep. 35.
 
 32 
 
 OF SALES BY AUCTION 
 
 encumbering themselves with the technical meaning of the 
 words. 
 
 Thus where(6) the city of London let an estate by auc- 
 tion for a term of years, according to certain conditions of 
 sale, by which it was stipulated that the purchaser should 
 pay a certain reiit before the lease was granted, which he 
 accordingly agreed to do, the Court of King's Bench held 
 that although the money to be paid could not be strictly 
 called a rent, the relation of landlord and tenant not hav- 
 ing then commenced, yet the parties intended the money 
 should be paid, and it must be paid accordingly. Lord 
 Kenyon said, he had always admired an expression of 
 Lord Hardwicke's, " that there is no magic in words." 
 But an agreement for purchase, with a stipulation, that 
 until the conveyance is made the purchaser shall pay and 
 allow to the seller at the rate of a fixed sum per annum, 
 three half-yearly payments will create the relation of 
 landlord and tenant, and the sum payable will be re- 
 coverable as rent(c). 
 
 Great care, however, should be taken to make the par- 
 ticulars and conditions accurate ; for the auctioneer cannot 
 contradict them at the time of sale, such verbal declara- 
 tions being inadmissible as evidence(4). 
 
 Thus, where estates were put up to sale by auction(flf), 
 and in the printed particulars of sale were stated to he free 
 from all ijiciimbrances, they were bought by a person 
 who, discovering that there was a charge on the estate of 
 17/. per annum, refused to complete the purchase, in con- 
 
 (h) City of London v. Dias, Woodfall's L. & T. 301. 
 
 (c) Saunders v. Musgrave, 6 Barn. & Cres. 524 ; S. C. 9 Dowl. 
 & R. 629. 
 
 (d) Gunnis v. Erharl, 1 H. Black. 289; see Jones v. Edney, 3 
 Camp. Ca. 285, 6 ; Bradshavv i'. Bennett, 5 Carr. & Pay. 48. 
 
 (4) See Grantland v. Wight, 2 Munf. 179, contra, ut semb. Wright's 
 Les. V. Dickline, 1 Peter's Rep. 199.
 
 AND PRIVATE CONTRACT. oo 
 
 sequence of which, an action was brought by the vendor ; 
 and although he offered to give in evidence, that the auc- 
 tioneer had publicly declared from his pulpit in the auc- 
 tion-room, where the estate was put up, that it was charged 
 in the manner above specified, yet the court of C. B. re- 
 fused to admit the evidence, as it would open a door to 
 fraud and inconvenience, if an auctioneer were permitted 
 to make verbal declarations in the auction-room, contrary 
 to the printed conditions of sale ; and the plaintiff was 
 nonsuited. And this rule prevails in favor as well of the 
 (*)seller as of the purchaser(e), and it equally applies to 
 a sub-sale ; therefore, if A. buy at a sale after a formal 
 explanation at the sale, w hich was heard by B., and then 
 re-sell to B., the first declaration is no more binding upon 
 B. than A., and therefore A. cannot enforce the contract, 
 as explained by the auctioneer, against B.(/^). 
 
 The same rule of course prevails in equity, where the 
 person setting up the parol evidence is plaintiff. Upon the 
 sale of an estate by auction the particular was equivocal 
 as to the words : but it was clear the purchaser w as to 
 pay for timber and timber-like trees. There was a large 
 underwood upon the estate. At the sale, the article being 
 ambiguous, the auctioneer declared he was only to sell 
 the land ; and every thing growing upon the land must be 
 paid for. The defendant, the purchaser, insisted he was 
 only to pay for timber and timber-like trees, not for plan- 
 tation and underwood. The declaration at the sale was 
 distinctly proved ; but it was determined by the Court of 
 Exchequer that the parol evidence was not admissi- 
 ble(?)(5). 
 
 (c) Powell V. Edmunds, 12 East, 6, 
 (/) Shelton v. Livins, 2 Crompt. & Jer. 411. 
 
 (g-) Jenkinson r. Pepys, 6 Yes. jiin. 330, cited ; 16 Vos. jtin. 521, 
 stated. 
 
 (6) But, t7 5ec»i5, that a purchaser of an estate at auction, is bound 
 
 VOL. I. 5 (*32)
 
 QA OF SALES BY AUCTION 
 
 Nor when the seller is plaintiff can parol evidence be 
 admitted on his behalf, of the declarations at the sale, 
 although the purchaser by the written agreement bind 
 himself to abide by the conditions and declarations made 
 at the sale(h)(6). 
 
 But a question has been raised, whether, if by a colla- 
 teral representation a party be induced to enter into a writ- 
 ten agreement, different from such representation, he may 
 not have an action on the case for the fraud practised to 
 lay asleep his prudence(i)(7). 
 
 (*)And if the purchaser have particular personal infor- 
 mation given him of an incumbrance, or of the nature of 
 the title, it seems that the parol evidence may be admit- 
 ted(j). It may therefore be proved that the purchaser 
 perused the original lease before the sale(A;). Such evi- 
 dence may be used in equity as a defence against the spe- 
 cific performance, if the parol variation was in favor of 
 the defendant, and the plaintiff seek a performance in 
 specie according to the written agreement(/)(8). 
 
 (h) HigginsoniJ. Clowes, 15 Ves. jun. 615, 
 
 (t) See Powell v. Edmunds, 12 East, 6. 
 
 (j) Gunnis v. Erhart, 1 H. Black. 289 ; and see Pember v. Mathers, 
 1 Bro. C. C. 52 ; Fife v. Clayton, 13 Ves. jun. 546, where the particu- 
 lar was altered before the sale. Ogilvie v. Foljambe, 3 Mer. 53. 
 
 (i-) Bradshaw v. Bennett, 5 Carr. & Pay. 48. 
 
 {I) Higginson v. Clowes, ubi sup. 
 
 by the verbal declarations of the auctioneer, publicly made at the sale, 
 and before the biddings commenced, not variant from the terms adver- 
 tised, but merely additional and explanatory ; and that the purchaser 
 may be compelled to complete his purchase according to the terms so 
 explained. Cannon v. Mitchell, 2 Des. 320. See Wainwright v. Read 
 et al 1 Des. 673. 
 
 (6) See Contra. Giantland v. Wight, 2 Munf. 179. 
 
 (7) See Bulklerj v. Stover, 2 Day, 631. JMonell v. Colden, 13 Johns. 
 Rep. 395. 
 
 (8) See Ten Broeclc v. Livingston, 1 Johns. Ch. Rep. 367. Waiii' 
 ivright V. Read et al. 1 Des. 673. 
 
 (*33)
 
 .WiD PRIVATE CONTRACT. 35 
 
 U it be the custom in a public auction-room to paste 
 up the conditions of sale in the room, and the auctioneer 
 announces that the conditions are as usual, they will, if 
 pasted up according to the usual custom, be binding on 
 the purchaser, although he did not see them(m). This 
 can seldom, however, happen upon a sale of estates. 
 
 The late Mr. Bradley recommended, that where it is 
 understood, at the time of sale, that the vendor has only 
 a doubtful title, a provisional clause, to the following 
 effect, should be inserted in the conditons of sale and 
 articles of purchase; which would be sufficient, he thought, 
 to obviate any doubt that might otherwise arise at the 
 sale : 
 
 " That if the counsel of the purchaser shall, on the ex- 
 amination of the title, be of opinion that a good title and 
 conveyance cannot be made of the purchased premises, 
 within the time limited by the articles for carrying the 
 same into execution ; in that case, the same articles shall 
 be discharged, and not further proceeded in on either 
 side." 
 
 {*)The estate cannot be too minutely described in the 
 particulars ; for although, as Lord Thurlow observed, it is 
 impossible that all the little particulars relative to the 
 quantity, the situation, &c. should be so specifically laid 
 down, as not to call for some allowance and consideration, 
 when the bargain comes to be executed (/i) ; yet, if a per- 
 son, however unconversant in the actual situation of his 
 estate, will give a description, he must be bound by that, 
 whether conusant of it or not(o)(9). 
 
 (»i) Mesnard v. Aldridge, 3 Esp. Ca. 271. 
 (n) See 1 Ves. jun. 224, per Lord Thurlow. 
 
 (0) See 1 Ves. jun. 213, per Lord Thurlow; Schneider r. Heath, 3 
 Camp. Ca. 506. 
 
 (9) See Judson v. Wass, 11 Johns. Rep. 525. .WFerran v. Taylor, 
 it, alt, 3 Cranch, 270. Stale v. Caillard et. al. 2 Ba>, 11. 
 
 (*34j
 
 3g OF SALES BY AUCTION 
 
 Lord Ellenborougli has observed, that a little more fair- 
 ness on the part oi" auctioneers, in the forming of their 
 particuhir.s, would avoid many inconveniences. There is 
 always either a suppression of the fair description of the 
 premises, or there is something stated vsdiich does not 
 belong to them ; and in favor of justice, considering 
 how little knowledge the parties have of the thing sold, 
 much more particularity and fairness might be expected. 
 The particulars, his Lordship added, are in truth like the 
 description in a policy of insurance, and the buyer knows 
 nothing but what the party communicat.es(p). 
 
 In one case(9) the conditions of sale stated a house to 
 be " a free public-house." The lease contained a cove- 
 nant to take beer from the lessors ; the auctioneer read 
 over the w^holc lease in the hearing of the bidders, but 
 he stated erroneously that the covenant had been decided 
 to be bad. The purchaser brought an action to recover 
 his deposit. Lord Ellenborough said, that in the con- 
 ditions of sale this is stated to be " a free public-house." 
 Had the auctioneer afterwards verbally contradicted this, 
 (*)he should have paid very little attention to what he said 
 from his pulpit. Men cannot tell what contracts they 
 enter into if the written conditions of sale are to be con- 
 trolled by the babble of the auction-room. But here the 
 auctioneer, at the time of the sale, declared, that he 
 warranted and sold this a free public-house. Under 
 these circumstances, a bidder was not bound to attend 
 to the clauses of the lease, or to consider their legal 
 operation. 
 
 Where a lease is sold, the purchaser is not bound to 
 complete his purchase if any part of the buildings de- 
 mised have been removed, although he heard the lease 
 
 (/)) See 3 Smith, 439 ; and see Duke of Xoitblk v. Worthy, 1 Camp. 
 Ca. 337, and post. Waring v. Hoggart, 1 Ry. Ik, Mood. 39. 
 (q) Jones i'. Edney, 3 Camp. Ca. 284. 
 
 (*35)
 
 AND PRIVATE CONTRACT. 
 
 37 
 
 read, and the particulars did not comprise the building 
 in question(r). 
 
 But where the agreement was to sell the lease of a 
 public-house, described as held at a certain net annual 
 rent, under common and usual covenants, it was held that 
 the contract was binding upon the purchaser, although 
 the lease contained a covenant by the tenant to pay the 
 land-tax, sewers rate and all other taxes, and a proviso 
 for re-entry if any business but that of a victualler should 
 be carried on in the house(5). 
 
 In a case where the original lease contained a power 
 of re-entry if certain trades were carried on upon the 
 ])roperty, and the lessee granted under-leases containing 
 no such stipulation, and upon a sale by the assignee of 
 the original lessee, the conditions of sale stated the 
 covenant in the original lease, and that such covenant 
 would be inserted in the under-leases to be granted to 
 the purchasers, but no mention was made whether the 
 covenant was inserted in the under-leases already granted, 
 the purchaser was allowed to recover his deposit from the 
 (*)auctioneer(/). Lord Tenterden observed, that he was 
 of opinion that it is the duty of every person truly and 
 honestly to represent that which he is to sell. A careful 
 man and a lawyer looking at these conditions of sale 
 mijiht ask. what were the terms of the leases which had 
 been granted : The purchaser is informed by the state- 
 ment in the conditions, that the original lessee is re- 
 strained from carrying on these obnoxious trades, and 
 that in the leases to be granted to him a similar covenant 
 is to be entered into. None but a very careful person 
 would suppose that it could be doubtful whether the 
 
 ()•) Granger v. "Worms, 4 Camp. Ca. 83. 
 
 (s) Bennett v. Womack, 7 Barn. & Cress. 627 ; 8. C. 1 Man. &. 
 R. 644. 
 
 (0 Waring v. Hoggart, 1 Ry. & Mood. 39. 
 
 (*36)
 
 38 OF SALES BY AUCTION 
 
 persons to whom under-leases had already been granted 
 were bound in the same manner. He was, therefore, 
 clearly of opinion that the plaintiff could not be bound 
 to take the title. 
 
 In stating an estate to be of any given " clear" yearly- 
 rent, the parties should attend to the meaning of the word 
 "clear," in an agreement between buyer and seller; which 
 is clear of all outgoings, incumbrances, and extraordinary 
 charges, not according to the custom of the country, as 
 tythes, poor-rates, church-rates, &c. which are natural 
 charges on the tenant(w). 
 
 As we have already seen, the statement that the pro- 
 perty is in lease binds the purchaser to the covenants in 
 the lease(t?). In Barraud v, KxQhe\{iv) the particulars 
 of sale described the estate, which was in the Isle of 
 Ely, as consisting of fen land, and as being let to a 
 tenant at the yearly rent of 165/., and stated that the 
 lessor allowed the eau-brink-tax and land-tax. It ap- 
 peared that the estate was also subject to other taxes for 
 embanking and draining, under a local public act of 
 (*)Parliament, and as they were not mentioned in the par- 
 ticulars, the purchaser claimed a compensation for them. 
 On the part of the seller, it was insisted that" there was 
 no misrepresentation, and that the particular expressly 
 mentioned that the estate was fen land, and enumerated 
 all the taxes which the landlord allowed to the tenant, 
 and that it was not usual to state the taxes which the 
 tenant paid. The Vice-Chancellor held that the pur- 
 chaser was not entitled to a compensation (.r). 
 
 But if there was a misrepresentation, of course the pur- 
 chaser would be entitled to a compensation. 
 
 (n) Earl of Tyrconnel v. Duke of Ancaster, Ambl. 237 ; 2 Ves. 
 500. 
 
 {v) Supra, p. 9. 
 
 (t«) 2 Sim. 433. 
 
 (,r) Lord Townsend r. Granger, 2 Sim. 433. 
 
 t*37) 
 
 Jl
 
 AND PRIVATE CONTRACT. 39 
 
 The mere exhibition of a plan of a new street, at the 
 time of the sale of a piece of ground to build a house in 
 the line of the intended street, does not amount to an 
 implied contract to execute the improvements exhibited 
 on the plan, where the written contract is silent on that 
 head(y). 
 
 Where the timber and other trees are to be taken by 
 the purchaser at a valuation, it should be stated accu- 
 rately for what trees he is to pay. 
 
 In a case where there were several lots, it was stated 
 after two of them, that the timber on them was to be paid 
 for. The particulars were silent as to the timber on the 
 other lots, which was of considerably greater value ; but 
 there was a general condition that all the timber and 
 timber-like trees, down to Is. per stick inclusive, should 
 be taken at a fair valuation. The purchaser of the lots, 
 to which no statement was annexed, claimed the timber 
 without paying for it; and the Master of the Rolls 
 thought that a purchaser might be so fairly impressed 
 with that idea, notwithstanding the general condition, 
 (*)that he refused to compel him to perform the contract 
 according to the seller's construction (z). 
 
 But although it should be merely stipulated that the 
 j)urchaser shall pay for timber yet he must pay for trees 
 not strictly timber, if considered so, according to the 
 custom of the country (a). 
 
 It is proper, also, to make some provision as to articles 
 not properly fixtures. Lord Hardvvicke said, that if 
 a man sells a house where there is a copper, or a brew- 
 house where there are utensils, unless there was some 
 
 (y) Feoffees of Henott*s Hospital v. Gibson, 2 Dow, 301 ; see 
 Compton V. Richards, 1 Price, 27; Beaumont r. Dukes, iJac. 422. 
 
 (z) Higginsoii r. Clowes, 15 Ves. jun. 616. 
 
 (a) Duke of Chandosr. Talbot, 2 P. Wras. 601 ; Anon. Ch. 25 Ju- 
 ly, 1808; Rabbett v. Raikes, Woodfall L. & T. 224, 6th ed ; and see 
 Aubrey v. Fisher, 10 East, 446. 
 
 (*38)
 
 ^Q OF SALES BY AUCTION 
 
 consideration given for them, and a valuation set upon 
 them, thej would not pass(6). But in the absence of any 
 stipulation, common fixtures would pass to the purchaser 
 under the common convejance(c)(10). 
 
 (6) Ex parte Quincey, 1 Atk. 478. 
 
 (c) Colegrave v. Dias Santos, 2 Bam. & Cress. 76 ; 3 Dowl. & R. 
 265. 
 
 (10) A kettle in a fulling mill, set in brick work, and used for dying 
 cloth, will pass to the mortgagee in fee of the mill ; though no mention 
 of the appurtenances be made in the deed. Union Bank v. Emerson, 
 15 Mass. Rep. 169. 
 
 What ought to be considered a fixture depends, materially, upon the 
 nature of the freehold sold. If a plantation, then all such things attach- 
 ed to the land, which are usually necessary, or used in the management 
 of a farm would pass. If a freehold fitted up for a trade of any kind, or 
 for manufactures, is sold to a person intending to follow the same busi- 
 ness, then all the machinery necessary to the trade, or manufacture, so 
 intended to be carried on, would pass. (By the Court in 1 Bailey's S. 
 C. R. 641.) The action was trover for a cotton gin, which was attach- 
 ed to the gears in the gin-house ; and it was held to be a fixture, which 
 passed by the contract of sale. But in the earlier case of M'Clinlock 
 V. Graham, 3 M'Cord, 553, where the question was in respect to a still 
 and vessels set up in a rock furnace, which was built against the wall. 
 THc claim of the purchaser was under a sheriff's sale ; and the court 
 were very clear, that it did not pass by the contract of sale. The Court, 
 Colcock, J. observed — If it was a mere temporary thing not necessary to 
 the enjoyment of the freehold ; as between executor and heir, I should 
 hold there was no doubt but that it must pass. But all difficulty in this 
 case must vanish when we consider the question in relation to the par- 
 ties claiming ; as to them it becomes a mere question of contract. C. 
 the first purchaser from T. says, when he bought the land, the still was 
 excepted ; and C, who sold to the defendant, says, he never heard a 
 word about the still when he was buying, and did not consider himself 
 as buying the still. Now, whatever rights may be acquired by those 
 who succeed ; if before they enter, the owner of the freehold himself 
 makes a severance, there can be no room for doubt. 
 
 The case of vendor and vendee is different from that of landlord and 
 tenant. Spencer, C. J. says in Holmes v. Tremper, 20 Johns. R. 29, 
 " when a farm is sold without any reservation, the same rule would 
 apply, as to the right of the vendor to remove fixtures, as exists between
 
 AND PRIVATE CONTRACT. 
 
 41 
 
 When the title-deeds cannot be delivered up, some 
 provision should be made as to the expense of the attested 
 
 the heir and executor." That rule is ; whatever is affixed to the free- 
 hold becomes part of if, and cannot be removed. The vendor has the 
 absolute control, not only of the land, but of the improvements ; and he 
 has an election to sell or not to sell. If he does sell, he knows the 
 fixtures pass ; not being in such cases personal property. These prin- 
 ciples were recognised in Miller v. Plumb, 6 Cowen, 665, where Plumb 
 conveyed by deed without reservation, an ashery, in which the kettles 
 were set in mason work, but the arches were upon a platform ; and 
 not fastened to the building. The troughs were sunk in the ground. 
 Miller, who purchased the premises demised the ashery ; and the 
 lessee entered into possession and used the kettles until a fire con- 
 sumed the building. The question being as to the fixtures, held, that 
 the fixtures passed by the conveyance ; but the plaintiff recovered in 
 trover for some small articles not annexed to the freehold. 
 
 A tenant for life, years, or at will, may at the expiration of his estate 
 remove from the freehold all such improvements as were erected or 
 placed there by him, the removal of which will not injure the premi- 
 ses or put them in a worse plight than they were in when he took pos- 
 session. Therefore, in \Yhiting v. Brastow, 4 Pick. 310, where the 
 plaintiff sued the defendant in trespass for entering his close and carrying 
 away a padlock and some boards put up in the corn house for binns ; 
 but neither were in any way fastened to the building. The defendant 
 was but a tenant at will when the plaintiff purchased the estate. The 
 Court held, that neither the padlock nor boards could be called a fixture. 
 If put there by the landlord, they would not be fixtures; for they were 
 loose and moveable without injury to the freehold. So, in Taylor v. 
 Townsend, 8 Mass. 411, it was decided that a mortgagee, after a recov- 
 ery by the mortgagor on a bill in equity to redeem ; and until an execu- 
 tion of the decree of the court, may take down any buildings erected by 
 him, the materials of which were his own ; and which were not so con- 
 nected with the soil as that they could not be removed without prejudice 
 to it. It is enough for the tenant to say, " I leave you the land as I 
 found it." A fortiori it ought to apply to a mortgagee who has held the 
 estate for years under a conveyance from the owner. 
 
 In Gray v. Holdship, 17 S. & R. 413. it w^as held, that a copper 
 kettle or boiler, which was fastened and fixed in the building, which 
 was used as a brewery, and an essential part of it, was subject to the 
 mechanic's lien law. Smith, J. distinguished this case from that in 
 14 Mass. R. 352, in which three carding machines in a wool carding 
 VOL. I. 6
 
 ^2 OF SALES BY AUCTION 
 
 copies, and the covenants to produce them, which will 
 otherwise fall upon the vendor(^/) ; and where the estate 
 is sold in many lots, and the title-deeds are numerous, 
 nearly the whole purchase-money may, perhaps, be ex- 
 hausted. In one case, the lots were more than 200, and 
 the copies came to 2,000/. 
 
 If the estate is leasehold, and the vendor cannot pro- 
 cure an abstract of the lessor's title, this fact should be 
 stated in the conditions(e). 
 
 (d) Dare v. Tucker, 6 Ves. jun. 460 ; and Berry v. Youngs 2 Esp. 
 Ca. 640, n. See post. c. 9. 
 
 (e) See post. ch. 7 ; and see Denew v. Deverell, 3 Camp. 451. 
 
 factory, were considered as personal property. There the carding ma- 
 chines were not a necessary part of the factory, and essential to its 
 operations. They stood on the floor^ and were not annexed to the 
 building, except by a leather band, which passed over the wheel or pul- 
 ley, to give motion to the machines. Here, the boiler was fastened and 
 fixed in the building. He cited the case of the Union Bank v. Emerson, 
 supra, and that from Mason's R. 469, in which Justice Story, decided, 
 that the main mill-wheel and gearing of a factory attached to the same 
 and necessary for its operations, are fixtures and real estate. 
 
 If one erect buildings upon the land of another voluntarily and with- 
 out any contract, he may not remove them. Thus, in Washburn et al, 
 V. Sproat, 16 Mass. 449, where the husband erected buildings on land, 
 the fee of which was in the wife, held, that the buildings were not lia- 
 ble for his debts ; his estate being insolvent after his decease. So, in 
 Goddard v. Bolster et al. 6 Greenl. 427, where an agent of the owner 
 of a mill put his own mill-stones and mill-irons into the mill, so as to 
 become a part of the freehold, held, that neither the agent, nor his cre- 
 ditors could seize them, though the mill had been destroyed by a flood, 
 and they alone remained. 
 
 It seems, however, that where the owner of land consents to the 
 erection of a dwelling for the accommodation of a son, under an ex- 
 pectation, that the former would devise the land to the latter at some 
 future time, the property of the building is personal property : and " per- 
 haps the son, or persons claiming under him by purchase or execution? 
 may enter and remove the buildings, without being subject to any othe'^ 
 than nominal damages in an action of trespass." W^ells et al. v. Banis- 
 ter & Trustee, 4 Mass. 614.
 
 AND PRIVATE CONTRACT. 
 
 43 
 
 A purchaser of a leasehold estate must covenant with 
 the vendor to indemnify him against the rent and (*)cove- 
 nants in the lease, although he is not expressly required 
 to do so by the conditions of sdi\e(f) ; and it will not 
 vary the case that he is not entitled to any covenants for 
 title ; for example, where the sale is by an executor of an 
 assignee(^) ; but assignees of a bankrupt selling a lease 
 which was vested in him, cannot require the purchaser 
 to enter into such a covenant for their indemnity or the 
 indemnity of the bankrupt(/i). 
 
 And although a purchaser is not required by the con- 
 ditions of sale to give an indemnity against the rent and 
 covenants, and an assignment is actually executed with- 
 out any indemnity being given ; yet, even a verbal agree- 
 ment by the purchaser, before the sale, to secure such 
 indemnity, will be carried into a specific execution, if it 
 be distinctly proved(i). 
 
 Where a vendor is only an assignee of a leasehold 
 estate, and is not bound by covenant to pay the rent, and 
 perform the covenants in the lease, his liability to do so 
 ceases upon his assigning the estate over(}"), and conse- 
 quently, in such case, there is not any thing for a pur- 
 chaser to indemnify against. It has lately been decided 
 that the assignee is liable to indemnify the lessee who 
 assigned to him against breaches during the time he (the 
 assignee) is in possession, although he has not covenanted 
 to indemnify the lessee(A:). 
 
 (f) See Pember i'. Mathers, 1 Bro. C. C. 52 ; and see post. ch. 4, 
 as to the obUgation of a purchaser of an equity of redemption to in- 
 demnify the vendor against the mortgage-money. 
 
 {g) Staines v. Morris, 1 Ves. & Beam. 8. 
 
 {h) Wilkins V. Fry, 1 Mer. 244. 
 
 (t) Pember v. Mathers, 1 Bro. C. C. 52 ; and see posl. ch. 3. 
 
 (j) See 1 Treat. Eq. 2d ed. p. 350, and Fonbl. n. (y) ibid. ; and 
 see Taylor v. Shum, 1 Bos. & Pull. 21. 
 
 (/.) Burnett v. Lynch, 5 Barn. & Cress. 689 ; 8 Dowl. & R. 368. 
 
 (*39)
 
 44 OF SALES BY AUCTION 
 
 It should always be stated in the conditions, that the 
 (*)conveyance shall be prepared by and at the expense of 
 the purchaser(/). 
 
 The usual conditionj "that if the purchaser shall fail 
 to comply with the conditions, the deposit shall be for- 
 feited, and the proprietors be at liberty to re-sell the 
 estate ; and the deficiency, if any, by such sale, together 
 with all charges attending the same, shall be made good 
 by the defaulter," should never be ommitted. It forms 
 a lien on the estate for the purchase-money, &c. and if 
 the purchaser do not comply with the conditions, the 
 vendor may, by virtue of this stipulation, re-sell the 
 estate, and recover the deficiency and charges from the 
 purcliaser(m)(ll). And if the money produced by the 
 second sale exceed the original purchase-money, the pur- 
 chaser who has violated the agreement will not be entitled 
 to the surplus, but the vendor himself will be entitled to 
 retain it. 
 
 A stipulation in a contract, that in case the vendor can- 
 not deduce a good title, or if the purchaser shall not pay 
 the money on the appointed day, the agreement shall be 
 void, does not enable either party to vitiate the agree- 
 ment, by refusing to perform his part of it : the seller 
 may avoid the contract, if the purchaser do not pay the 
 money ; the purchaser may avoid it, if the seller do not 
 make a title ; or the contract will be void, if the seller 
 cannot make a title ; but it is not sufficient for him to say 
 that he cannot(7i). 
 
 (/) Seei^ost. ch. 4. 
 
 (to) Ex parte Hunter, 6 Ves. jun. 94 ; and See Moss v. Matthews, 
 3 Ves. jun. 279 ; Martens v. Adcock, 4 Esp. Cas. 251 ; sed vidt 7 
 Ves. jun. 275. See Greaves r. Ashlin, 3 Camp. 466. 
 
 (>t) Roberts v. Wyatt, 2 Tau. 268. 
 
 (11) But the vendor cannot maintain an action against the vendee, 
 for a breach of the contract of sale, until, on a re-salc, the deficit shall 
 have been ascertained. IVcbsfcr and Ford v. Hoban, 7 Cranch, 399. 
 
 (*40)
 
 AND PRIVATE CONTRACT. 
 
 46 
 
 If the purchaser, after breakino; the condition, become 
 bankrupt, and the estate is re-sold at a loss, the expenses 
 (*)of the sale, &c. being in the nature of unliquidated 
 damages, cannot pe proved under the commission ; but 
 as the vendor has a lien on the estate, he may apply the 
 money produced by the last sale of the estate, first, in 
 payment of those articles which it is just he should 
 receive, but which he could not prove under the bank- 
 ruptcy ; then towards payment of the original purchase- 
 money ; and the balance may be proved under the com- 
 missi on (o). 
 
 In a recent case(/)), a leasehold house and furniture 
 had been sold for 4,370/. and the assignment was executed, 
 but neither it nor the lease, nor possession, had been 
 delivered ; and the purchaser declining to complete the 
 contract, the sellers brought an action and recovered 
 the whole amount of the purchase-money and costs. 
 The purchaser became a bankrupt, and the assignees 
 took possession of the house. The seller then sold the 
 house and furniture at a considerable loss : and Lord 
 Eldon considered that they were entitled to a lien for 
 the amount of the sale and costs, and to a proof for the 
 difference, although it was insisted that they were con- 
 cluded by their action. 
 
 If a house be sold, witli all the lights belonging to it, 
 and it is intended to build upon the adjoining ground 
 belonging to the same owner, so as to interfere with the 
 lights, a right so to build should be expressly reserved : 
 it will not do to describe the house as abutting on build- 
 ing ground belonging to the seller(<^). 
 
 (o) Ex parte Hunter, 6 Ves. jun. 94 ; Bowles r. Rogers, ;7)iV/. 95, 
 n. ; 1 Cooke, 123. 
 
 (/;) Ex parte Lord Sealbrth, 1 Rose, 306 ; ex parte Gyde, 1 Glyn 
 St Jam. 323. 
 
 (9) Swanborough r. Coventry, 9 Ring. 305 ; S. C. 2 Moo. & S. 36:^. 
 
 (*41)
 
 4g OF SALES BY AUCTION 
 
 The condition which has now become ahnost universal, 
 that any mistake in the description of the estate, &c. 
 (*)shall not annul the sale, will only guard against unin- 
 tentional errors. 
 
 This was decided by Lord Ellenborough in a case 
 where the estate was stated in the particulars to be about 
 one mile froai Horsham. It turned out that the estate 
 was between three and four miles from that place. Upon 
 an action brought by the purchaser for recovery of the 
 deposit, it was insisted that the effect of the misdescrip- 
 tion was saved by the condition, which provided that no 
 error or mis-statement should vitiate the sale. But Lord 
 Ellenborough said, that in cases of this sort he should 
 always require an ample and substantial performance of 
 the particulars of sale unless they were specifically qual- 
 ified. Here there was a clause inserted, providing that 
 an error in the description of the premises should not 
 vitiate the sale, but an allowance should be made for it. 
 This he conceived was meant to guard against uninten- 
 tional errors, not to compel the purchaser to complete the 
 contract if he had been designedly misled. His Lordship 
 therefore left it to the jury, whether this was merely an 
 erroneous statement, or the misdescription was wilfully 
 introduced, to make the land appear more valuable from 
 being in the neighborhood of a borough town. In the 
 former case, the contract remained in force, but in the 
 latter case the plaintiff was to be relieved from it, and 
 was entitled to recover back his deposit. The plaintiff 
 had a verdict ; so that the jury must have thought the 
 misdescription fraudulent(r)(12). 
 
 (r) Duke of Norfolk v. Worthy, 1 Camp. Ca. 337 ; see Fenton v. 
 Brown, 14 Ves. jun. 144 ; 1 Ves. and Bea. 377 ; Stewart v. Alliston, 
 1 Mer. 26 ; Trower v. Newcome, 3 Mer. 704. 
 
 (12) See M'Ferran v. Taijlor ct all. 3 Cranch, 270. 
 {*42)
 
 AND PRIVATE CONTRACT. 4'^ 
 
 So in the case of Powell v. Doubble(5). A house was 
 described, in the particulars of sale, as a brick-built 
 dwelling-house. It turned out that the house was built 
 (*)partlj of brick and partly of timber, and that some parts 
 of the exterior were only composed of lath and plaster, 
 and that there was no party-wall to the house. Shortly 
 after the sale, the ancient chimnies fell inwards through 
 the house, but it was not proved to what this was to be 
 attributed. The case was heard upon bill and answer. 
 There was the usual condition about misdescriptions 
 being the subject of allowance. The bill was dismissed 
 with costs, as the Vice-Chancellor was of opinion that 
 such a description means that the house was brick-built 
 in the ordinary sense, and that it was not a subject for 
 compensation. 
 
 And although the condition as usual provides for pay- 
 ment of a compensation, yet the sale will be void if from 
 the nature of the case no estimate can be made of the 
 diminution in value. Thus, where a reversion was sold 
 after the death of a person aged sixty-six, in case he 
 should not have children, it turned out that he was only 
 sixty-four, and Lord Tenterden held, that the sale was 
 void. He said that in the case of a reversion simply 
 expectant on the death of an individual, if a mistake be 
 made in his age, a compensation may be made under the 
 condition, for the difference of value may be computed ; 
 but where there is an additional contingency, such as that 
 of the birth of future children, in this case the difference of 
 age alters the likelihood of that contingency, and in such 
 a case therefore no estimate can possibly be made of the 
 difference of value between the thing described and the 
 thing sold, and the contract itself must be vacated(/). 
 
 (s) MS. V. C. 15 June 1832. 
 
 (/) Sherwood v. Robins, 1 Mood. & Malk. 194 ; S. C. 3 Carr. & 
 P. 339. 
 
 (*43)
 
 48 
 
 OF SALES BY AUCTION 
 
 A bidding at a sale by auction may be countermanded at 
 any time before the lot is actually knocked down(?/)(13) ; 
 (*)because the assent of both parties is necessary to 
 make the contract binding ; that is signified, on the part 
 of the seller, by knocking down the hammer. An auction 
 is not unaptly called locus poenitentiGi. Every bidding is 
 nothing more than an offer on one side, which is not 
 binding on either side till it is assented to. If a bidding 
 was binding on the bidder before the hammer is down, 
 he would be bound by his offer, and the vendor would 
 not, which can never be allowed. 
 
 The countermand of a bidding would, in some cases, 
 prove of the most serious consequences ; and it might 
 therefore be advisable to stipulate in the conditions of 
 sale, that no person shall retract their biddings. 
 
 Although the duty is, by the acts, imposed on the ven- 
 dor, yet he is not restrained from making it a condition of 
 sale, that the duty, or any certain portion thereof, shall 
 be paid by the purchaser over and above the price bidden 
 at the sale by auction : and in such case the auctioneer is 
 required to demand payment of the duty from the pur- 
 chaser, or such portion thereof as is payable by him 
 under the condition : and, upon neglect or refusal to 
 pay the same, such bidding is declared by the act to be 
 null and void to. all intents and purposes(i;)(I). 
 
 {u) Payne v. Cave, 3 Term Rep. 148 ; see Routledge v. Grant, 4 
 Bing. 653 ; S. C. 1 Moo. & P. 717. As to goods, see Phillips v. Bis- 
 toUi, 3 Dowl. & Ry. 822. 
 
 {v) 17 Geo. III. c. 50. s. 8. See 7 Ves, jun. 345. 
 
 (I) This provision seems very objectionable. It might be contended, 
 that if a purchaser disliked his bargain, his refusal to pay the auction 
 duty would annul the sale, and throw the whole expense attending it 
 on the vendor, whose estate would still remain unsold. If there be any 
 foundation for this argument, the clause in question should not be per- 
 mitted to stand in its present shape. 
 
 (13) See Dpwriin^\v. Brown el alt. Hardin, 181. 
 
 (*44) ' '
 
 AND PRIVATE CONTRACT. 
 
 49 
 
 It is usual to make some provision respecting the pay- 
 ment of the auction duty, as that the vendor and pur- 
 chaser shall pay it in equal moieties ; and indeed, where 
 the purchase-money is liable to the duty, a stipulation of 
 this nature should never be omitted, unless the vendor 
 (*)intend to pay the whole duty himself. If the seller can- 
 not make a title, the purchaser can recover from him the 
 auction duty which he has paid(7o). And if the sale be 
 not binding, the auctioneer, although he has paid the duty, 
 cannot, under the common condition, recover it from the 
 purchaser^ as he is called, because, although the highest 
 bidder, he is not the purchaser(.r). 
 
 The other provisions which ought to be inserted in 
 conditions of sale, are so well known as not to require 
 notice. 
 
 IV. It frequently happens that estates advertised to be 
 sold by auction, are sold by private contract, instead of 
 being brought to the hammer, and the sale is not announc- 
 ed to the public till the day fixed for the auction, and 
 even sometimes not till the auctioneer's appearance in the 
 auction-room. Notice of an intended sale by auction is 
 said to be a contract with all the world : and the })arties to 
 whom the notice is addressed ought not to be put to the 
 expense and trouble of attending the auction unless the 
 sale is to take place. It should be stated, therefore, in 
 the advertisements, that the estate will be sold by auction 
 at the place and time fixed upon, unless previously sold by 
 private contract ; in which case notice of the sale shall be 
 immediately given to the public : and notice should be 
 given accordingly. 
 
 If an auctioneer sell an estate without a sufficient au- 
 thority, so that the purchaser cannot obtain the benefit of 
 his bargain, he (the auctioneer) will be compelled to pay 
 
 (w) Cane v. Baldwin, 1 Stark. 65. 
 
 (x) Jones V. Nanney, 13 Pri. 76 ; S. C. M'CIel. 25. 
 
 VOL. I. 7 (*45)
 
 5Q OF SALES BY AUCTION 
 
 all the costs which the purchaser may have been put to, 
 and the interest of the purchase-money, if it has been 
 unproductive (?/)( 13). 
 
 (*)If an attorney or agent bid more for an estate than 
 he was empowered to do, he himself would be liable ; but 
 it seems that his principal would not(2:). But unless he 
 were expressly limited as to price, and not enabled to go 
 beyond the limits of his authority, his principal would be 
 bound («)( 14). 
 
 Where the principal denies the authority, and the agent 
 is compelled to perform the agreement himself, because 
 he cannot prove the commission, he may afterwards file a 
 bill against his principal ; and if the principal deny the 
 authority, an issue will be directed to try the fact ; and if 
 the authority be proved, the principal will be compelled 
 to take the estate at the sum which he authorized the 
 agent to bid(6). If the agent make the agreement in 
 that character, and his authority is denied, and he pays 
 the deposit, he may recover it back in his own name if 
 a good title cannot be made(c). If the agency be estab- 
 
 iy) Bratt v. Ellis, MS. ; Jones v. Dyke, MS. App. Nos. 7 and 8 ; 
 and see Nelson v. Aldridge, 2 Stark. 435 ; Jaby v. Driver, '2 Yo. & 
 Jer. 549. 
 
 {z) See Ambl. 498 ; 10 Ves. jun. 400. 
 
 (c) Hicks «. Hankin, 4 Esp. Ca. 114. See East India Company 
 V. Hensley, 1 Esp. Ca. 112. 
 
 (6) Wyatt V. Allen, MS. App. No. 9. 
 
 (c) Langstroth v. Toulmin, 3 Stark. 145. 
 
 (13) See Dusenbury v. Ellis, 3 Johns. Cas. 70. 
 
 (14) See Batty v. Carsivell et alt. 2 Johns. Rep. 48. Lee v. Mun- 
 roe et alt. 7 Cranch, 366. 
 
 The principal is liable for the acts of a general agent, acting 
 within the general scope of his authority ; and a third person cannot be 
 affected by private instructions from the principal to his agent ; but 
 when a special agent acts without authority, the principal is not bound. 
 JVfwmv. Commission Co. 15 Johns. Rep. 44. 
 
 (*46)
 
 AND PRIVATE CONTRACT. /r j 
 
 lislied, the agent will be compelled to transfer the benefit 
 of the contract to his principal, although he made the con- 
 tract in his own name, and swears that it was on his own 
 account(f/). 
 
 If an auctioneer give credit to the vendee, or take 
 a bill, or other security, for the purchase-money, it is en- 
 tirely at his own risk : the vendor can compel him to pay 
 the money(e)(15). As between an agent for the seller 
 
 (d) Lees v. Nuttall, 1 Russ. & My. 53. 
 
 (e) 'Williams v. Millington, 1 H. Blackst. 81. See Wiltshire v. Sims, 
 1 Camp. N. P. 258. 
 
 (15) So, if an auctioneer depart from his instructions, he is liable to 
 his employer for all the damage sustained thereby ; as where the de- 
 fendant, who was an auctioneer, was directed to sell certain goods at 
 auction, dn a credit, taking security from the purchasers for the amount 
 of their imrchases ; the goods, were sold, and lands with security, were 
 taken for a part, and the rest were delivered to the purchasers without 
 security ; on closing the account of sales with the plaintiffs, the defen- 
 dant paid a part of the amount in cash, and offered the bonds and open 
 accounts of the purchasers for the residue, which were refused ; it was 
 held, that the defendant was liable for the amount both of the bonds 
 and open accounts. Wilkinson v. Campbell, 1 Bay, 169. 
 
 Where a factor has been instructed to sell goods for cash, and he per- 
 mits the purchaser to take them away without payment at the time of 
 sale, he is liable, though a usage among factors is proved of allowing to 
 purchasers a week or fortnight to make payment, where the sale has 
 been for cash. Barksdale v. Brown, 1 Nott & Mc Cord, 517. See 
 Van Allen v. Vanderpool, 6 Johns. Rep. 69. Goodenow v. Tyler, 7 
 Mas. Rep. 36, 42. James v. M' Credie, 1 Bay, 294. 
 
 An auctioneer selling a house for a sum less than the price limited by 
 his instructions, and crediting the vendor the full price, is bound by it, 
 though the price obtained was the full value of the property sold. Hig- 
 ginson v. Fahre's Exrs. 3 Des. 90. 
 
 In Steele et al v. Ellmakcr, 11 S. & R. 86, where goods were scut 
 to auctioneers " to be disposed of by them at the average price of 50 
 per cent advance on the sterling cost, as quoted in the invoice, but not 
 otherwise ;" but the defendants sold them for less : held, that the plain- 
 tiffs Merc entitled to recover the difference. Tilghman, C. J. after a 
 commentary upon the English cases, concluded thus ; " It is agreed
 
 62 
 
 OF SALES BY AUCTION 
 
 and a purchaser, it seems that an agent with an undisclos- 
 ed principal may vary the terms of payment after the sale 
 is completed, the principal may interfere at any time before 
 payment, but not to rescind what has been before done. 
 (*)This is essential to the safety of purchasers. But if 
 a man sell, acting as a broker, the moment the sale is 
 completed he is functus officii. The terms of the con- 
 tract cannot then be altered except by the authority of the 
 principal(/)(16). 
 
 If a purchaser pay his money to the agent of the vendor 
 before the time when the latter is authorized to receive 
 it, he makes that agent his own for the purpose of paying 
 over the money to the right owner(^). 
 
 If the seller for a valuable consideration direct his agent 
 to pay over the proceeds of the sale to a third person, he 
 cannot revoke the ordcr(//). 
 
 The auctioneer should not part with the deposit until 
 the sale be carried into effect(f) ; because he is considered 
 
 (/) See Blackburn v. Scholes, 2 Camp. 343. 
 {g) See Panither v. Gaitskill, 13 East, 432. 
 (/») Metcalfi'. Clough, 2 Mann. & Syl. 178. 
 
 (i) Buriough V. Skinner, 6 Burr. 2639 ; Berry tJ. Young, 2 Esp. Ca. 
 640, n. ; Spurrier v. Elderton, 5 Esp. Ca. 1 ; and see post. ch. 10. 
 
 on all hands, (even by Lord Mansfield) that it is fair to limit the price, 
 provided it be made known. The defendant then, being under no in- 
 junction of secrecy, might have complied with the plaintiff's orders, 
 without violating the most fastidious rules of morality. Or, if he 
 thought there would be some difficulty in doing this, (the order being 
 not to sell under a certain average) he might have said so, and then the 
 plaintiff must have been more explicit in his directions. But without 
 making any objection, or intimating any difficulty, the defendant accept- 
 ed the commission, and then sold the goods, contrary to his instructions. 
 I confess, I cannot see, how he can be justified, or what should prevent 
 the plaintiff's recovery, as there is no suggestion of any thing unfair, in 
 his conduct, or intentions. 
 
 (16) See Kelleij v. Munsoir, 7 Mass. Rep. 319. 
 
 (*47)
 
 AND PRIVATE CONTRACT. 53 
 
 as a Stakeholder, or depositary of it(j). In a late case, 
 where the auctioneer was also the attorney of the seller, 
 and paid over the money to the seller, after he knew that 
 objections to the title had been raised, an action against 
 him for the dej)Osit was sustained, but the Judges cau- 
 tiously abstained from pointing out the duty of an auc- 
 tioneer in any other case(A:). However, in a later case, 
 where the auctioneer had paid over the deposit to the 
 vendor, without any notice from the purchaser not to do 
 so, and before any defect of title was discovered, it was 
 held that the purchaser (the title being defective) might 
 recover the deposit from the auctioneer(/). 
 
 If both the parties claim the deposit, the auctioneer 
 may file a bill of interpleader, and pray for an injunction, 
 (*)which will be granted, upon payment into court of the 
 deposit(m). 
 
 But an auctioneer cannot maintain a bill of inter- 
 pleader if he insist upon retaining out of the deposit either 
 his commission or the auction duty ; for interpleader is 
 where the plaintiff is the holder of a stake which is equal- 
 ly contested by the defendants, as to which the plaintiff is 
 wholly indifferent between the parties, and the right to 
 which will be fully settled by interpleader between the 
 defendants(w). 
 
 If upon a bill filed for an injunction, the Court order the 
 deposit to be paid into court, it will, it seems, be after 
 deducting the auctioneer's charges and expenses(o), 
 although perhaps this deserves re-consideration ; for the 
 purchaser's deposit may not ultimately be the fund out of 
 
 ij) Jones r. Edney, cor. Lord Ellenborough, 4 Dec. 1812. 
 (A) See Edwards 1'. Hodding, 5 Taunt. 815; 1 Marsh. 377. 
 (/) Gray v. Giitleridgc, 1 Mann. & Ryl. 614. 
 {m) Farebrolher r. Prattent, 5 Price, 303 ; 1 Dan. 64. 
 (n) Mitchell v. Hayne, 2 Sim. & Stii. 63 ; but as to the auction du- 
 ty, see Farebrother r. Prattent. 
 
 (0) Annesley v. Muggridge, 1 Madd. 693. 
 
 (*48)
 
 54 OF SALES BY AUCTION 
 
 which those charges are to be paid ; but this is done with- 
 out prejudice to any question as to so much of the deposit 
 as is retained(p). 
 
 In a case where 1,000/. was paid as a deposit to an auc- 
 tioneer, according to the conditions of sale, and the vendor 
 opposed two motions by the purchaser, in an original and 
 cross-cause filed concerning the contract, for payment of 
 the deposit into court, and the auctioneer became a bank- 
 rupt, the loss was holden to fall on the vendor, although 
 the second motion had succeeded, and the day named for 
 payment of the money into court was subsequent to the 
 bankruptcy (5'). And perhaps a loss by the insolvency of 
 the auctioneer will, in every case, fall on the vendor, who 
 nominates him, and whose agent he properly is(r). 
 
 (*)And unless an auctioneer disclose the name of his 
 principal, an action will lie against him for damages on 
 breach of conJract(5). 
 
 Generally speaking, an auctioneer is not liable for 
 interest ; but that subject will be considered fully in the 
 chapter on Interest(/). 
 
 If an auctioneer do not insert usual clauses in the con- 
 ditions of sale, whereby the sale of the estate is defeated, 
 he cannot recover any compensation from the vendor for 
 his services : and it is immaterial that he read over the 
 conditions of sale to the seller, who approved of them. The 
 same rule of course applies to negligence generally on the 
 part of the auctioneer, whereby the sale is defeated(z«). 
 
 (p) Yates V. Farebrother, 4 Madd. 239. 
 
 (9) Brown v. Fenton, et e cont. Rolls, 23 June, 1807, MS. ; S. C. 
 14 Ves. jun. 144. 
 
 (r) See 2 H. Blackst. 592 ; 13 Ves. jun. 602 ; 14 Ves. jun. 150 ; 
 Annesley v. Muggridge, 1 Madd. 693 ; Smith v. Lloyd, 1 Madd. 618. 
 
 (s) Hanson v. Roberdeau, Peake's Ca. 120; see Simon v. Motives, 
 3 Burr. 1921 ; Owen v. Gooch, 2 Esp. Ca. 567; 12 Ves. jun. 352, 
 484. 
 
 (t) Post. ch. 10. s. 1. 
 
 (n) Denew v. Dcvcrall, 3 Campb. 451. 
 
 (*49)
 
 AND PRIVATE CONTRACT. 55 
 
 Where a man is completely the agent of the vendor, 
 a payment to him is in law a payment to the principal ; 
 and in an action against the latter for recovery of the 
 deposit, it is immaterial whether it has actually been paid 
 over to him or not(v)(\l). 
 
 An auctioneer being only an agent, may safely pay 
 over the proceeds of the sale to the seller, his principal, 
 although the latter is to his knowledge in insolvent cir- 
 cumstances (m;). 
 
 It may here be remarked, that a deposit is considered 
 as a payment in part of the purchase-money (.r), and not 
 as a mere pledge ; which was also the rule of the civil 
 law, where money was given ; but if a ring, &c. was 
 (*)given by way of earnest, or pledge, it was to be re- 
 turned(y). 
 
 If, pending a suit for specific performance, a deposit be 
 laid out in the public funds, under the authority of the 
 Court, it will be binding on both vendor and vendee ; 
 and, if laid out without opposition by the seller, it must 
 be presumed to be with his assent ; and, in either case, 
 he must take the stock as he finds it(z). 
 
 If a purchaser is entitled to a return of his deposit, he 
 is not compellable to take the stock in which it may have 
 been invested, unless such investment were made under 
 the authority of the Court, or with his assent. And an 
 assent will not be implied against a party because notice 
 
 (v) Duke of Norfolk v. Worthy, 1 Camp. N. P. 337. 
 
 (w) White V. Bartlett, 9 Bing. 378; S. C. 2 Moo. & S. 516. 
 
 (t) Pordage v. Cole, 1 Saund. 319 ; see Main v. Melbourn, 4 Yes. 
 jun. 720 ; Klinitz v. Surry, 5 Esp. Ca. 267 ; Ambrose v. Ambrose, 1 
 Cox. 194. 
 
 (y) Vinnius, 1. 3. 24. 
 
 (r) Poole V. Rudd, 3 Bro, C. C. 49 ; and see Doyley r. the Coun- 
 tess of Powis, 2 Bro. C. C. 32 ; 1 Cox, 206. 
 
 (17) See Taber v. Perrot el al. 2 Gallis. 565. 
 
 (*50)
 
 55 OF SALES BY AUCTION 
 
 was given to him of the investment, to which he made no 
 reply(a). Therefore, where the deposit is considerable, 
 and it is probable that the purchase may not be com- 
 pleted for a long time, it seems advisable for the parties 
 to enter into some arrangement for the investment of the 
 deposit. 
 
 As a vendor will not be subject to any loss by the 
 investment of the purchase-mqpey in the funds without 
 his assent, so he will not be entitled to any benefit by 
 a rise in the funds, although the purchaser gave him 
 notice of the investment ; unless he (the vendor) agreed 
 to be bound by the appropriation. Sir William Grant 
 has observed, that a deposit does not impose a liability or 
 responsibility upon the party to whom notice of it is 
 given ; throwing upon him any risk as to the principal. 
 The principal remains entirely at the risk of the party 
 making the deposit. He cannot, by depositing the money 
 with his bankers, throw the risk of their credit upon the 
 (*)other parties. They are not called upon to express 
 their opinion of that bank, or to say any thing upon the 
 subject. There is no difference between that and a de- 
 posit at the Bank of England, or a conversion of the 
 money into stock ; as the one party has no more right to 
 make the other consent to have the fund laid out in stock 
 than in a private bank(6). 
 
 No objection can be made to the whole of the deposit 
 required by the conditions not being paid by the pur- 
 chaser, if the vendor, after the sale, agree to accept a less 
 sum(c). 
 
 Although the deposit be forfeited at law, yet equity will, 
 in general, relieve the purchaser, upon his putting the 
 
 (a) Roberts v. Massey, 13 Ves. jun. 661. 
 
 (b) Roberts v. Massey, ubi sup ; Acland v. Gainsford, 2 Mad. 28. 
 
 (c) Hansen r. Roberdeau, Peake's Ca. 120. See ex parte Gwynne, 
 12 Ves. jun. 378; and 1 Campb. Ca. 427, 
 
 (*61)
 
 AND PRIVATE CONTRACT. 
 
 57 
 
 vendor in the same situation as he would have been in 
 had the contract been performed at the time agreed 
 upon(f/). But if a bill by a purchaser for a specific per- 
 formance is dismissed, the Court cannot order the deposit 
 to be returned : as that would be decreeing relief(e). 
 
 Where the seller files the bill he submits to the juris- 
 diction, and although his bill is dismissed, the Court 
 will compel him to repay the deposit, and with interest, 
 where that ought to be paid. This was first decided 
 by Lord Eldon, and has since been followed by other 
 judges. 
 
 It is well settled, that assignees of a bankrupt are not 
 bound to take what Lord Kenyon calls a damnosa hcere- 
 ditas, property of the bankrupt, which so far from being 
 valuable, would be a charge to the creditors ; but they 
 may make their election ; if, however, they do elect to take 
 (*)the property, they cannot afterwards renounce it, because 
 it turns out to be a bad bargain(/). This observation is 
 made as an introduction to a c'dse(g), in which it was 
 decided that the assignees of a bankrupt could not be 
 charged as assignees of the lease, where they had not en- 
 tered into actual possession, but merely put up the property 
 to sale by auction without stating to whom it belonged, or 
 on whose behalf it was sold, and no person bid at the sale : 
 the Court considered this as a mere experiment to enable 
 .the assignees to judge, whether the lease were beneficial or 
 not, and compared it to a valuation by a surveyor. If the 
 assignees do accept the property, the bankrupt is by a late 
 
 (d) Vernon v. Stephens, 2 P. Wms. 66 ; Moss v. Matthewe, 3 Ves. 
 jun. 279. 
 
 («) Bennet College v. Carey, 3 Bro. C. C. 390. 
 
 (/) See 7 East, 342. 
 
 ig) Turner v. Richardson, 7 East, 336 ; Wheeler v. Bramah, 3 
 Campb. 370 ; Copeland v. Stephens, I Barn. & Aid. 693 ; and see 
 Carter v. Warne, 1 Mood. & Malk. 479 ; S. C. 1 Carr. & P. 191. 
 
 VOL. I. 8 (*62)
 
 ^g OF SALE 6 BY AUCTION 
 
 act(/i) relieved from the rent and covenants, and if the 
 assignees decline the same, the bankrupt is not to be 
 liable in case he deliver up the lease to the lessor within 
 fourteen days, and the lessor is enabled in a summary 
 way to compel the assignees to make their election either 
 to accept the same or deliver up the lease and possession 
 of the estate. 
 
 Immediately after sale of an estate by auction, an agree- 
 ment(z) to complete the purchase should be signed by the 
 parties or their agent, because sales by auction of estates 
 are within the statute of frauds(jj ; and consequently, the 
 contract could not be enforced against either of the parties 
 who had not signed an agreement(18). . Although a man 
 purchase several lots, yet a distinct contract arises upon each 
 lot, and consequently, if no lot is of the value of 20/., no 
 stamp is necessary, although altogether they are of more 
 (*)value(A;) ; but they may all be comprised in one agree- 
 ment. 
 
 The above observation, in regard to the necessity of a 
 written agreement, of course, applies to sales by private 
 contract(/) ; as indeed do all the foregoing observations, 
 which are not in their nature applicable exclusively to 
 sales by auction. 
 
 (/{) 6 Geo. IV. c. 16, s. 75. See ex jiarie Vomeroy, 1 Rose, 67; 
 ex parte Nixon, 1 Rose, 446. 
 
 (i) See a form of an agreement, Appendix, No. 5. 
 
 {j) See post. ch. 3. 
 
 (k) Emmerson v. Heelis, 2 Taunt. 38. 
 
 (/) See post. ch. 3. See a form of an agreement, Appendix, No. 6. 
 
 (18) It has been decided, that an auctioneer is the authorized agent 
 of the purchaser of land, at auction, to sign the contract of sale for 
 him, as the highest bidder ; and that writing his name, as the purchas- 
 er, in the memorandum of the sale, by the auctioneer, immediately on 
 receiving his bid and knocking down the hammer, is a sufficient sign- 
 ing of the contract within the statute of frauds. M'Comb v. Wright, 
 4 Johns. Ch. Rep. 659. See Davis v. Robertson, 1 Rep. Con. Ct. 71. 
 Cleaves v. Foss, 4 Greenl. 1. 
 
 (*53) I
 
 AND PRIVATE CONTRACT. 59 
 
 As agreements for sale of estates are generally entered 
 into by the attornies of the parties, it may, in this place, 
 be proper to observe, that where an attorney enters into 
 an agreement on behalf of his principal, the agreement 
 should be made and signed in the name of the principal, 
 by him as attorney : for if an attorney covenant in his 
 own name for himself, his heirs, he. he will himself be 
 personally bound, though he be described in the instru- 
 ment as covenanting for and on the part of his princi- 
 
 pal(w0(19)- 
 
 Where an estate is sold in lots, whether by public 
 
 auction or private contract, it may be advisable for the 
 vendor to take attested copies of the parcels included in 
 the different conveyances ; in order to satisfy a cautious 
 purchaser of any part of the estate, that no part of the 
 estate bought by him is included in any of the conveyan- 
 ces to the other purchasers. 
 
 It may here be observed, that if a man agree to get 
 another so much for his estate, and actually provide a pur- 
 chaser with whom the owner agrees for the sale of the 
 property, at the sum stipulated, and a deposit is paid, the 
 first agreement will be performed, although the purchaser 
 (*)cannot perform the agreement, if the seller let him off, 
 and retain the deposit as a forfeiture. (w) 
 
 If an agent for sale of an estate is to be paid a per- 
 
 (m) Appleton v. Biiiks, 5 East, 148 ; Kendray v. Hodsion, 5 Esp. 
 Ca. 228 ; Norton v. Herron, 1 Ry. & Mood. 229 ; S. C. 1 Carr. & P. 
 648 ; Spittle v. Lavender, 1 Moore, 270 ; Grey v. Gutteridge, 1 Man. 
 & Ry. 614. See Duke of Norfolk v. Worthy, 1 Camp. N. P. 337; 
 Brown v. Morris, 2 Taunt. 375. 
 
 (n) Horford v. Wilson, 1 Taunt. 12. 
 
 (19) See Duval v. Craig et al. 2 Wheat. 45, 56. Tippelsy. Walker, 
 4 Mass. Rep. 595. Thatcher v. Diyismorc, 5 Mass. Rep. 299. Fors- 
 ter V. Fuller, 6 Mass. Rep. 58. Sumner v. Williams, 8 Mass. Rep. 
 162. Thttijer v. Wendall, 1 Galiis. 37. White v. Skinner, 13 Johns. 
 Rep. 307. 
 
 (*54)
 
 gQ OF SALES i;V AUCTION, kc. 
 
 centage on the sum oblained, he cannot recover his com- 
 mission until the money is received by the principal. If 
 therefore it is paid into the bank under an act of Parlia- 
 ment, by the autiiority of which the property was pur- 
 chased, the commission is not recoverable until at least 
 the seller's right to the money is ascertained, and it is 
 owing to his wilful default that he has not received it(o). 
 Where a man had bought an estate and paid a deposit, 
 but the title had not been made out, and being desirous 
 of compromising with his creditors, applied to the seller 
 to cancel the contract and return the deposit, which he 
 refused to do, but said that he would never sue the pur- 
 chaser on the contract, and thereupon the compromise 
 w ith the creditors proceeded ; it was held that it would 
 have been a fraud in the seller if he had attempted to 
 enforce the contract, and therefore the purchaser was not 
 allowed to recover the deposit, although the title had not 
 been made oat(p)(20). 
 
 V. By a late nct(q), the following duties are imposed 
 upon every valuation or appraisement of any estate, or 
 effects, real or personal, or of any interest therein, or of 
 the annual value thereof; viz. where the amount does 
 not exceed 50/., a duty of 2s. 6d. ; where it exceeds 50/. 
 but does not exceed 100/., a duty of 5s.; where it ex- 
 ceeds 100/. and does not exceed 200/., a duty of IO5. ; 
 where it exceeds 200/. and does not exceed 500/., a duty 
 of 155. ; and where it exceeds 500/., a duty of 205. 
 
 (0) Bull r. Price, 7 Bing. 237 ; 5 Moo. & P. 2. 
 
 ( p) Clark r. Upton, 3 Mann. & Ryl. 89. 
 
 (q) 55 Geo. III. c. 148. See Lees v. Burrows, 12 East, 1. 
 
 (20) See Treatise on Principal and Agent, (1836) tit. Auctioneers, 
 where all the American cases are abridged.
 
 [ 61 ] 
 
 (*)CHAPTER II. 
 
 OF SALES UNDER THE AUTHORITY OF THE COURTS 
 OF EQUITY. 
 
 SECTION I. 
 
 Of the Proceedings from the Advertisements to the 
 Conveyance. 
 
 We have already seen, that sales under the decrees of 
 the Court of Chancery, or Exchequer, are not liable to the 
 auction duty ; and therefore if public notice of a vendor's 
 intention to bid for the estate is not necessary, where 
 a single bidder is employed to prevent the estate from 
 being sold at an under-value(2;), it follows, that wo notice 
 need be given previously to the sale of an estate under 
 a decree, of the vendor's intention to buy in the estate, if 
 a particular price be not bid for it. At the same time, it 
 must be observed, that where a fraud is committed on the 
 purchaser, by puffing at the sale, it cannot be supported, 
 any more than a sale by auction under similar circum- 
 stances(«) ; but the Court will, in a proper case, authorize 
 a bidding to be reserved, and to be made one of the con- 
 ditions of sale(6). 
 
 Where an estate is directed to be sold before a Master, 
 the particulars of sale are prepared by the plaintiff's soli- 
 citor : after they are allowed by the Master, the adver- 
 tisement for sale must be prepared, either by the plaintiff's 
 solicitor, or by the Master's clerk, and the signature of 
 
 [z) Vide Supra, p, 13. 
 
 (a) Vide supra, p. 24. 
 
 (b) Jervoist v. Clark, 1 Jac. & Walk. 389.
 
 62 
 
 OF SALES UNDER THE AUTHORITY 
 
 (*)the Master must be obtained to authorize the insertion 
 of the advertisements in the Gazette. There are always 
 two advertisements(^) ; in the first, no time is appointed 
 for the sale. About three weeks or a month after the 
 insertion of the first advertisement, a warrant must be 
 taken out to fix a time for the sale, and it must be served 
 on all the parties' clerks in court. The warrant being 
 attended, the Master, with the approbation of all parties, 
 will fix the time ; and the second advertisement, which 
 is usually called the peremptory advertisement, stating 
 the time, must then be prepared, and inserted in the 
 Gazette(^?). The estate may be sold either before the 
 Master ; or, if from the situation and nature of the estate, 
 the sale ought not to take place in town, it may be sold 
 in the country before the Master's clerk, or any other 
 person authorized by the Master(e). 
 
 The plaintiff's solicitor should attend at the sale, which 
 is conducted in the following manner : The Master's 
 clerk prepares a particular of the lots to be sold, with 
 spaces between each lot. The lots are successively put 
 up at a price offered by any person present, and every 
 bidder must sign his name and the sum he offers, in the 
 space on the particular, under the lot for which he bids ; 
 and formerly 2s. 6d. was paid to the Master's clerk for 
 every bidding ; but that regulation, which had a tendency 
 to damp the sale, has lately been very properly abolished, 
 and in lieu of the half-crowns, a sum is allowed to the 
 clerk, as part of the expenses attending the sale.(l) The 
 best bidder is of course declared the purchaser. If any 
 
 (c) 2 Fowl. Piac. 306. 
 
 (d) See 1 Turner's Practice by Yen. 127. 
 
 (e) See 2 Fowl. Prac. 305. 
 
 (I) This will of course be now corrected under the authority of the 
 late act 3 & 4 W. 4, c. 94. 
 (*56)
 
 OF THE COURTS OF EQUITY. 53 
 
 (*)lots are not sold, they must be again advertised for 
 sale(/). 
 
 The payment of a deposit, and the investment of it in 
 the funds, are governed by the same rules as are adhered 
 to where the contract is between party and party(^). 
 
 The Court will, on motion, discharge the purchaser, 
 and substitute any other derson in his stead ; but this 
 will not be done unless such person pay in the money, 
 and an affidavit be made that there is no under-bargain ; 
 for the new purchaser may give the other a sum of money 
 to stand in his place, and so deceive the Court(A). 
 Formerly the practice seems to have been to require the 
 consent of all the parties in the cause, as well as the 
 consent of the original purchaser(2). 
 
 If the purchaser resell at a profit behind the back of 
 the Court, before his purchase is confirmed, the second 
 purchaser is considered a substituted purchaser, and must 
 pay the additional price into Court for the benefit of the 
 estateQ). 
 
 Although more of an estate is sold than is necessary 
 for the purposes of the trust by virtue of which the 
 decree was made, yet the purchaser can make no objec- 
 tion to it, the decree being a sufficient security to him, 
 as it cannot appear but that it was right to sell the whole. 
 If, however, the decree were, that the Master should sell 
 Greenacre, and he sells Blackacre, an objection to the 
 sale would be good (A:) ; although it seems that it may be 
 laid down as a general rule, that a purchaser shall not 
 (*)lose the benefit of his purchase by any irregularity of 
 
 (/) See 1 Turn. Prac. 129 ; 2 Fowl. Prac. 306, 307. 
 ig) Vide supra, p. 60 ; Ambrose v. Ambrose, 1 Cox, 19'i. 
 {h) Rigby r. M'Namara, 6 Yes. jun. 515 ; Vale r. Davenpoit, 6 
 Ves. jun. 615. 
 
 (t) Matthews v. Stubbs, 2 Bro. C. C. 291. 
 
 ij) Nodder v. Ruffin, 1 Taunt. 341. 
 
 (A) Lutwych v. Winford, 2 Bro. C. C. 248. 
 
 (*57) (*58)
 
 64 
 
 OF SALES UNDER THE AUTHORITY 
 
 the proceedings in a cause(/). If a decree is obtained by 
 fraud, it may, of course, be relieved against(m) ; and it 
 has been said that a purchaser is bound to see, that, at 
 least as far as appears on the face of the proceedings 
 before the Court, there is no fraud in the case(n) ; but, 
 if the Court itself be imposed upon, it would be a strong 
 measure to iynply notice of the fraud to the purchaser, 
 from the very proceedings before the Court. But it is 
 a settled maxim that persons purchasing under decrees of 
 the Court are bound to see that the sale is made accord- 
 ing to the decree(o)(21). 
 
 (/) Lloyd V. Johnes, 9 Yes. jun. 37; Curtis v. Price, 12 Ves. jun. 
 89 ; Bennelt v. Harnell, 2 Scho. & Lef. £66 ; Burke v. Crosbie, 1 
 Ball & Beat. 489 ; Lightburne v. Swift, 2 Ball & Beat. 207. See 
 Baker t'. Morgan, 2 Dow, 626. Mullins v. Townsend, 1 Dow & 
 Chirk, 430. 
 
 (m) Kennedy v. Daly, 1 Schoales & Lefroy, 366 ; Giffard v. Hort, 
 ih. 
 
 (n) Gore v. Stacpole, 1 Dow, 30. 
 
 (o) Colclough V. Sterum, 3 Bligh, 181. 
 
 (21) In Reed v. Carter, 1 Black. Indiana R. 410, where the 
 sheriff sold under an execution, land valued at 1600 dollars or upwards 
 for 351 dollars, under the following circumstances : viz. the debtor had 
 previously paid the amount supposed to be due to the sheriff, and pro- 
 mised to pay the residue (if any) when called on. There was a bal- 
 ance left of 15 or 20 dollars ; and for this balance the sheritTsold with- 
 out calling on the debtor : but the court observed that a court of law 
 could not interfere on motion ; but relief might be obtained in chancery 
 for such an abuse of power. See Tiernan r. Wilson, 6 J. Ch. 411, 
 where it was held that the sheriff should sell only so much of the de- 
 fendant's property as might be sufficient for the purpose, provided it can 
 be sold separately. 
 
 Where the execution is issued on a judgment for an amount exceed- 
 ing the ad damnum in the writ ; and the levy is made for the full 
 amount ; the levy is void in respect to other attaching creditors ; and 
 also in respect to persons claiming title by intermediate conveyance. 
 And it seems to be considered that there can be no apportionment in 
 such case, so as to give the creditor a title to the property correspond-
 
 OF THE COURTS OF EQUITY. gt 
 
 A person having a legal lien, as a judgment-creditor 
 not coming in under the decree, would not be bound by 
 it, and might proceed against the purchaser, unless he 
 obtained a legal interest over-reaching the lien ; in ^^ hich 
 case the claim being merely in equity, the Court would 
 protect the purchaser buying under its decree(/>), or 
 rather would not lend its aid to the judgment-creditor 
 against liim(22). 
 
 ( p) Barrett r. Blake, 2 Ball S. Beat. 354. 
 
 ing in value to his attachment. Chickering v. Lovejoy, 13 Mass. 66. 
 If the judgment, however, be for a penalty, the plaintiff may levy his 
 whole debt independent of the charges of execution. Per Parsons, C. 
 J. 4 Mass. 411. In a late case, it was held, that where the execution was 
 levied upon land ; and the appraisers valued the land 14 cents more 
 than the amount of the execution, the extent was not invalid for this 
 cause ; for de minimis non curat lex. Spencer v. Champion, 9 Conn. 
 R. 453. 
 
 In Den r. Despcreaux, 9 Hals. R. 182, it was held, that where the 
 sheriff's deed misrecites the execution, the purchaser will fail to show 
 the authority of the sheriff to sell. So, in Den v. Whiight, Pet. 66, U. 
 S. C. C, the court held, that the sheriQ^'s deed could not be given in 
 evidence without producing the judgment and execution ; these being 
 necessary to show the authority of the sheriff ; and if the latter differ 
 from the former, it is the same as if none were produced. It is dif- 
 ferent in New-York ; the statute in the latter state not requiring the 
 execution to bo recited in the deed. 9 Cowcn, 192; S. P. 10 
 Johns. 331. 
 
 (22) In the late case of The Eagle Fire Ins. Co. r. Cammet ct al., 2 
 Edw. Ch. R. 127, the V. Ch. discharged a purchaser from his contract 
 under a decree of foreclosure of a mortgage, on the ground, that the 
 remainder man, who had the first estate of inheritance had not been 
 made a party. The widow and daughter of the mortgagor were the only 
 parties : and they were tenants for life only under the will of the mort- 
 gagor. This was not sufficient. In Gore r. Stackpole, 1 Dow's P. 
 R. 18, a foreclosure, in a similar case, was opened by a remainder 
 man fifty years afterwards. It was done upon the opinions of Lords 
 Redesdale and Eldon. 
 
 In Foster v. Briggs, 3 Mass. 315, where the plaintill" ni;;de an at- 
 tachment of land, which was under an inrnnibrnnce to its full value* 
 
 vor.. I. 9
 
 66 
 
 OF SALES UNDER THE AUTHORITY 
 
 In sales by auction or private agreement, the contract 
 is complete when the agreement is signed ; but a different 
 rule prevails in sales before a Master ; the purchaser is 
 not considered as entitled to the benefit of his contract 
 till the Master's report of the purchaser's bidding is 
 absolutely confirmed ; and 1 shall now^ proceed to show' 
 (*)what steps a purchaser must take to obtain an abso- 
 lute confirmation of the Master's report(23). 
 
 The purchaser must first, at his own expense, procure 
 a report from the Master, of his being the best bidder for 
 the lot he has purchased. After the report is filed, and 
 an office-copy of it taken by the purchaser, he must, at 
 his own expense, apply to the Court by motion, of which 
 no notice need be given(^), that the purchase may be 
 confirmed. Upon this application the order will be con- 
 firmed nisi(7'), that is, unless cause be shown against the 
 same in eight days after service. The purchaser must, 
 at his own expense, procure an office-copy of this order 
 from the Register(I). If no cause be shown within the 
 eight days, the purchaser must, at his own expense, apply- 
 to the Court to confirm the report absolutely, which will 
 
 (q) See Parker's Analysis, 141. 
 
 (r) For a form of the order, see 2 Fowler's Pract. 308. 
 
 (I) See 3 & 4 W. 4, c. 94, s. 10. 
 
 Four days after he assisted in a negotiation by which the incumbrance 
 was removed ; and the premises sold to one G. under whom the de- 
 fendant claimed. Parsons, C. J. " Whether at this time (the time of 
 sale) his not disclosing his attachment, but assisting in the transaction 
 was such a fraud upon G., as shall, at law, defeat his attachment, it is 
 not necessary now to decide, as the justice of the case can be attained 
 by the decision of another question. I am satisfied that, were we sit- 
 ting here as a court of Chancery, with all the equitable powers of that 
 court, we ought to set aside the plaintiff's attachment, on account of his 
 fraudulent concealment of it disclosed in the case." 
 
 (23) See Monell v. Lawrence, 12 Johns. Kep. 521. contra. 
 
 (*69)
 
 OF THE COURTS OF EQUITY. g^ 
 
 be done of course(5), ou an affidavit of the service of the 
 order(z'), and a certificate of no cause having been shown. 
 The certificate is obtained from the Register by applica- 
 tion to the entering clerk, and leaving the order nisi the 
 day before. Notice of this application need not be 
 given(M). But if he be served with notice of a motion to 
 open the biddings, he cannot regularly proceed to confirm 
 his report absolutely (.t). 
 
 If after having obtained the order nisi, the purchaser 
 neglects to confirm the order, the vendor himself may 
 make the motion(//). 
 
 The bidder not being considered as the purchaser 
 (*)until the report is confirmed, is not liable to any loss 
 by fire or otherwise which may happen to the estate in 
 the interim(~) ; nor is he, until the confirmation of the 
 report, compellable to complete his purchase(«) ; but 
 upon the report being confirmed, he will be compelled to 
 carry the contract into execution(6). 
 
 If the purchaser neglect to complete his purchase, the 
 practice is, to confirm the report, and then if the pmxhas- 
 er is supposed to be responsible, to get an order to inquire 
 whether the party can make out a good title(c), and if he 
 can, to obtain an order upon the purchaser to complete 
 
 (s) For a form of the order, see 2 Fowler's Pract. 311. 
 
 (/) For Ibrms of the allidavit, see 2 Turn. Pract. 503. 522 ; Parker'* 
 Anal. 98; 2 Fowl. Pract. 310. 
 
 («) Sec 1 Turn. Pract. 129. 
 
 (x) Vansittart v. Collier, 2 Sim. & Stu. 608. 
 
 ((/) Chillingworth v. Chillingwoith, 1 Sim. & Slu. 291. 
 
 (z) Ex parte Minor, 11 Yes. jun. 559; see 13 Ves. jun. 51S ; 1 
 Jac. & Walk. 639. 
 
 (a) Anon. 2 Ves". jun. 335. 
 
 (6) Barker r. Holford, and Eggington r. Flavel, 2 Anstr. 344, cited. 
 
 (c) Notice must be given of the motion for this order. For a form 
 of the notice, see 2 Turner, 650. 
 
 (*60)
 
 68 
 
 OF SALES UNDEPv THE Ar'l'HORlTY 
 
 his purchase(r/)(I) ; but if the purchaser is unable to 
 complete h.is j)uichase, then on the report being confirm- 
 ed, it is moved to disciiarge him from the bidding(e), 
 and notice of this motion must be given to the purchas- 
 erC/). But a purciiaser v.ill not be permitted to baffle 
 the Court ; and therefore, instead of discharging the 
 purchaser from his biddinji;, the Court will, if required, 
 make an order that he shall, within a given time, pay the 
 money, or stand committed (^) (24). 
 
 (d) See 2 Fowl. Pract. 318, 325. 
 
 (e) Cunningham v. Williams, 2 Anstr. 344. 
 
 (/) For a form of the notice, see 2 Turn. Pract. 651. 
 (g) Lansdown v. t'llclerton, 14 Ves. jun. 512. 
 
 (I) A motion was made before Lord Erskine, that the purchase- 
 money should he paid in by the purchaser. The purchaser did not ap- 
 pear. After consulting the Register, who had searched for precedents, 
 and expressing his unwillingness to do any thing to prejudice sales by 
 the Court, the Chancellor refused the motion, but ordered the title to be 
 referred to the Master; and then, he said, if a good title could be made 
 he would compel payment of the money according to the usual practice. 
 Anon. Ch. 22d July, 1806, MS. 
 
 (24) A purchaser cannot object to any defect of title at a sherifi''s 
 sale, of which he had notice. Therefore, where lands were taken in 
 execution ; and at the time of sale by the sherift'one H. F. gave public 
 notice that the land was his, and not the execution debtor's : held, that 
 the vendee could not avail himself of such defect in the title as a de- 
 fence against paying the purchase money. (Friedly r. Scheetz, 8 S. 
 & R.'26S.) 
 
 Duncan, J. in delivering the judgment of the court said " the sheriti" 
 conveys to the purchaser a free and clear estate, as fully apd amply, as 
 they were in the debtor. He enters into no covenant. Inadequacy 
 of price alone is no objection to a sale under process of law. 11 Johns. 
 55'. The rule of caveat emptor is binding on every purchaser at a 
 sheriff's sale. Fraud, a clcnr mistake in the description of the proper- 
 ty, its situati'on, its dimensions, would raise a different question. The 
 learned judge added in conclusion in respect to a resale that, " the court 
 were not called upon to give an opinion ;" but said, "here the resale
 
 OF THE COURTS OF EQUITY. gC) 
 
 (*)Whcn the report is absolutely confirmed, the pur- 
 chaser is entitled to a conveyance on payment of the 
 purchase-money, and may, after giving notice of his 
 intention(/j), ap])ly to the Court for leave to pay his 
 purchase-money into the Bank(?'), and to be let into i)os- 
 session of the estate ; but this application should of 
 course not be made until the title be approved of(/t"). 
 When the money is paid according to the order, the pur- 
 chaser must, at his own expense, obtain a certificate of 
 the payment of it. 
 
 If the estate be subject to an incumbrance, which 
 appears upon the report, the purchaser should, after 
 giving notice of his intention(/), apply to the Court for 
 leave to pay off the charge, and to pay the residue of the 
 purchase-money into the Bank. But where an incum- 
 
 (/j) For forms of the notice, sec 2 Turn. Pr. 647; Park. Anal. 140. 
 (i) For the mode of paying the money into the Bank, see 1 Turn. 
 Pract. 210; and for a form of the order, see 2 Fowl. Pract. 313. 
 (/.) See 2 Fowl. Pract. 317. 
 (/) For a form of such notice, see 2 Turn. Pract. 648. 
 
 was at the risk of the; purchaser, and on a resale made by a sheriff for 
 the purchaser's non-compliance, the purchaser would not be entitled to 
 any surplus, though he would be accountable for any deficiency." 
 But where the resale is on account of the purchaser, it is different. 
 The case of AVebsteret al. r. Iloban, 7 Cranch, 399, was an action on 
 the sale itself; and the condition of the sale was, that the purchaser 
 should secure the purchase money within 30 days ; and in default of so 
 doing the property was to be resold on his account. The court held, 
 that the purchaser was clearly entitled to the surplus. In respect to 
 the case first cited, it may be observed that, " if the defendant had not 
 given the obligation, the sheriff might have returned the property to tlie 
 next bidder, sold again, and have sued for the difference; or he might 
 have made a special return, that the premises were knocked down to 
 the defendant, and that he not having paid the purchase money, there- 
 fore the premises remained unsold." Tantinger v. Pole, 1 Uall. 458. 
 Or, he might as he did in that case, return them sold, tender the convey- 
 ance, and sue for the purchase-money on the obligation. 
 
 ■(*61)
 
 70 
 
 OF SALES UNDER THE AUTHORI'l'Y 
 
 braiice on the estate does not appear on the report, and 
 any of the parties refuse, or are incompetent to consent, 
 a purchaser cannot apply any part of liis purchase-money 
 in discharge of the incumbrance, though perhaps, if the 
 parties be all competent to consent, and do consent, it 
 may be done(m). 
 
 Where two or more persons purchase one lot, the 
 money must be paid altogether ; the Court will not allow 
 them to pay their proportions separately, on account of 
 the confusion which might ensue(M). 
 
 A purchaser under a decree is entitled to be let into 
 possession of the estate from the quarter-day preceding 
 his purchase, paying his money before the following 
 (*)one(o). But this rule does not apply to a colliery, 
 which is considered as a trade. The profits are settled 
 monthly, and therefore the purchaser is entitled to the 
 profits only from the commencement of the month in 
 which he purchased, paying his purchase-money in the 
 course of that month(p). 
 
 If a life interest in stock be sold, the purchaser is 
 entitled to the dividend which becomes due after the 
 sale, although it falls due the very day d.her(q). 
 
 A purchaser is not entitled to the rents for a period 
 beyond the quarter-day preceding the payment of his 
 money, merely because he has been ready to complete 
 his purchase, and had his money ready lying dead in 
 a banker's hands ; for he might have moved to pay the 
 money into Court, when it would have been laid out : 
 
 (m) V. Stretton, 1 Ves. jun. 266. 
 
 («) Darkin v. Marye, 1 Anst. 22. 
 
 (o) Twigg V. Fifield, 13 Ves. jun. 517 ; see Garrick v. Earl Cam- 
 den, 2 Cox, 231 ; vide post. ch. 10. 
 
 (p) Wren v. Kirton, 8 Ves. jim. 502 ; Williams v. Attenborough, 1 
 Turn. 70. 
 
 (q) Anson v. Towgood, 1 Jac. & Walk. 637. 
 
 (*62) 
 
 I
 
 OF THE COURTS OF EQUITY. •y| 
 
 and this, if done by special application, would not have 
 been an acceptance of the title(r). 
 
 If a purchaser enter into possession, he will be com- 
 pelled to pay the money into Court, although he entered 
 with the permission of the parties in the cause. The 
 Court only can give such permission(5). 
 
 When the report is absolutely confirmed, and every 
 thing arranged, the draft of the conveyance must be 
 drawn by the purchaser's solicitor, and either settled by 
 the Master, if the parties insist upon it, or, which is 
 more customary, by a conveyancing counsel of whom the 
 Master approves. Sufficient time must be allowed for 
 copies to be made for such parties in the cause as require 
 (*)them, and then warrants must be taken out to proceed 
 on the draft. The Master's clerk will, at the purchaser's 
 expense, ingross the deed, procure the report or certificate 
 of its being allowed, and then deliver the deeds to the 
 purchasers ; and it is usual to obtain the Master's signa- 
 ture to every skin. The report must be filed, and an 
 office-copy of it taken (^). 
 
 It is usual, however, to so word decrees, that the draft 
 shall not go before the Master unless the parties differ. 
 Where this mode is adopted, the business is transacted 
 in the same way as upon a sale by private contract, un- 
 less the parties cannot agree, in which case, resort is had 
 to the Master. 
 
 When the deeds have been properly executed by all 
 necessary parties, an affidavit of the due execution of 
 them must be made, and filed in the affidavit office, and 
 an office-copy of the affidavit must be taken : this being 
 done, the money directed to be paid in consequence 
 thereof, may be procured in the usual manner(M). 
 
 (r) Barker v. Harper, Coop. 32, 
 
 {«) Anon. L. I. Hall, 16 July 1S16, MS. 
 
 (0 1 Turn. Pract. 145. 
 
 (?0 1 Turn. Prnct. 145. 
 
 (*63)
 
 72 *^F SALES UNDER THE AUTHORITY 
 
 If the parties disngree as to the necessary parties, &:c. 
 to the conveyance, the Master Avill report his approbation 
 of the draft, as settled by him. To this re])ort exceptions 
 may be taken(a"), and then the question will come before 
 the Court in a regular way. 
 
 So if the parties differ as to the validity of the title 
 to the estate, the Master must make his report upon 
 the title, to which exceptions may in like manner be 
 tc^ken(y). 
 
 If the title prove bad, the purchaser will be paid the 
 costs of the reference out of the funds in the cause(z) ; 
 (*)and if there are no funds in Court, the plaintiff will in 
 a common case be ordered to pay the purchaser his costs 
 in the first instance («). 
 
 In a case where there was error in the decree under 
 which the estate was sold, the purchaser was discharged, 
 upon motion, from his purchase, although the parties 
 were proceeding to rectify it(6). 
 
 If a purchaser of an estate under a decree of the Court, 
 after the absolute confirmation of the report, and before 
 any conveyance made to him, die, having devised his 
 interest therein, the Court will order a conveyance to be 
 made to the devisees, without the consent of the testa- 
 tor's heir at law, where he is an infant(c). 
 
 If an estate directed to be sold before a Master, is sold 
 by private contract, or in any other manner contrary to 
 the order of the Court, and not actually conveyed to the 
 purchaser, the Court will not take notice of the sale, but 
 will direct the estate to be sold before the Master, accord- 
 
 (x) Lloyd V. Griffith, 1 Dick. 103 ; Tipping v. Gartside, 2 Fowl. 
 Pract. 328 ; Wakeinan v. Duchess of Rutland, 3 Ves. jun. 504. 
 (y) For forms of exceptions, see 2 Tiirn. Pract. 689. 
 {z) Reynolds r. Blake, 2 Sim, & Stu. 117. 
 (a) Smith v. Nelson, 2 Sim. k Stu. 657. 
 (6) Lechmere v. Brasier, 2 Jac. & Walk. 287. 
 (c) The King v. Gregory, 4 Price, 380. 
 (*64) 
 
 J
 
 OF THE COURTS OF EQUITY. «7« 
 
 ing to the decree(f/)(25). And a person who has notice 
 of the decree cannot be advised to purchase the estate 
 unless it be sold before the Master(e) : and the money 
 should be paid into court and not to the partj(y*). 
 
 If an estate be sold contrary to the order of the Court, 
 and the purchaser had notice of the decree, he will have 
 no remedy(26) ; but if he bought without notice, he may 
 recover at law for breach of the agreement(^). 
 
 A sale before a Master is not within the statute of 
 frauds, and after confirmation of the Master's report of the 
 (*)best purchaser, the sale will be carried into effect even 
 against the representative of the purchaser, although he 
 did not subscribe ; the judgment of the Court taking it 
 out of the statute(/i). 
 
 And even if the authority of an agent not being ad- 
 mitted cannot be proved, yet if the Master's report could 
 be confirmed, the sale would be carried into execution 
 unless some fraud were proved(i). 
 
 As a purchaser under a decree does by the act of pur- 
 chase submit himself to the jurisdiction of the Court, he 
 may, if he obtain possession of the estate before the con- 
 
 (d) Annesley r. Ashurst, 3 P. Wms. 282. See and consider ex pay- 
 te Hughes, 6 Ves. jun. 617. 
 
 (e) See 2 vol. Ca. and Opin. 224, 225. 
 (/) See 2 Scho. & Lef. 681. 
 
 {g) Raymond r. Webb, LofR, 66 : See Morllock v. Buller, 10 Ves. 
 jun. 314. 
 
 {h) Att. Gen.r. Day, 1 Ves. 218. 
 (0 Ibid. 
 
 (26) Sales of mortgaged lands, under a decree, must be made by a 
 master, or under his immediate direction. A sale by a person deputed 
 for the purpose by a master, in his absence, is irregular, and will be set 
 aside. Heyerv. Deaves, 2 Johns. Ch. Rep. 154. 
 
 (26) See Quarles v. Lacy, A Munf. 261. 
 
 VOL. 1. 10 (*65)
 
 74 
 
 OF SALES UNDER THE AUTHORITY 
 
 tract is completed, be restrained by injunction from com- 
 mitting waste(y). 
 
 SECTION II. 
 Of opening the Biddings, and of rescinding the Contract. 
 
 Thus far we have traced a sale before a Master where 
 no opposition is made to the absolute confirmation of the 
 Master's report of the best bidder, and the sale is regu- 
 larly concluded. But where estates are sold before a 
 Master under the decree of a court of equity, the Court 
 considers itself to have a greater power over the contract 
 than it would have were the contract made between party 
 and party(A;) ; and as the chief aim of the Court is to ob- 
 tain as great a price for the estate as can possibly be got, 
 it is in the habit of opening the biddings after the estate 
 is sold(27). It seems to have been thought that the 
 
 (j) Cassamajor v. Strode, 1 Sim. & Stu. 381. 
 (fc) See 1 P. Wms. 747. 
 
 (27) See Fairfax v. Alust^s Exrs. 4 Munf. 124. Ford v. Hcrron, 
 4 Munf. 316. Wood's Exr. v. Hudson, 5 Munf. 423. 
 
 In the State of JVeto- Yorh, the English practice of opening biddings 
 at a master's sale, is not adopted : But where the executors of a mort- 
 gagee were innocently misled, and induced to believe, that the sale of 
 the premises would not take place on the day appointed, and there be- 
 jng no culpable negligence on their part, the court, under the special cir- 
 cumstances of the case, set aside the sale, and ordered a re-sale, on 
 condition that the defendant should pay the purchaser all his costs and 
 expenses, and the costs of the application, though the sale was perfect- 
 ly fair. Williamson v. Dale, 3 Johns. Ch. Rep. 290. See Lansing v. 
 M'Pherson, 3 Johns. Ch. Rep. 424. 
 
 (*66)
 
 OF THE COURTS OF EQUITY. -ye 
 
 (*)sanie rule may be extended to sales under a commission 
 of bankruptcy (/). This, however, never has been done, 
 nor is there any reason to apprehend that so mischievous 
 an extension of the rule will ever take place. 
 
 Where a person is desirous of opening a bidding, he 
 must, at his own expense, apply to the Comt, by motion 
 for that purpose, stating the advance offered. Notice of 
 the motion must be given to the person reported the pur- 
 chaser of the lot, and to the parties in the cause(m). If 
 the Court approve of the sum offered, the application will 
 be granted, and on the order being drawn up, entered 
 and served, a new sale must be had before the Master. 
 The order is made at the expense of the person opening 
 the biddings, and he must bear the expense of paying in 
 his deposit, and pay the costs of the first purcliaser(?i), 
 and interest at the rate of 4/. per cent, on such part of the 
 purchase-money as the Master shall find to have lain 
 dead(o). 
 
 Mere advance of price, if the report of the purchaser 
 being the best bidder is not absolutely confirmed, is suf- 
 ficient to open the biddings, and they will be opened more 
 than once, even on the application of the same person, if 
 a sufficient advance be offeredQ?) ; but the Court will 
 stipulate for the price, and not permit the biddings to be 
 opened upon a small advance(</) ; and, although an ad- 
 vance of 10 per cent, used generally to be considered sufti- 
 
 (/) Ex parte Partington, 1 Ball & Beatty, 209. 
 
 (m) For a form of the notice, see 2 Turn. Pract. 649, 660. 
 
 (n) 2 Fowl. Pract. 318 ; 1 Turner's Pract. 131. 
 
 (o) This was directed on opening the biddings for Gen. Birch's es- 
 tate, MS. 
 
 (p) Scott 15. Nisbitt, 3 Bro. C. C. 475; Hodges v. Jones, 2 Fowl. 
 Pract. 318; see Baillie r. Chaigneau, 6 Bro. P. C. byToml. 313; 
 Preston v. Barker, 15 Yes. jun. 140. 
 
 {q) Anon. 1 Ves. jun. 453 ; Anon. 2 Yes. jun. 487 ; Upton v. 
 Lord Ferrers, 4 Yes. jun. 700 ; and Anon. 5 Yes. jun. 148. 
 
 (*66)
 
 76 
 
 OF SALES UNDER THE AUTHORITY 
 
 (*)cient on a large sum, yet no such rule now prevails(/) ; 
 but in the case of a sale under a creditor's suit, the Court 
 permitted the biddings to be opened, upon an advance of 
 
 5 per cent on 10,000/.(5). An advance of 350/. upon 
 5,300/. was refused, and it was said that the former cases 
 only established that where an advance so large as 500/. 
 is offered the Court will act upon it, though it be less 
 than 10 per cent(^). Biddings, it seems, will not be 
 opened unless 40/. at least be offered in advance(w) ; 
 and the common rule does not apply to a colliery(i(;). 
 
 The determinations on this subject assume a very dif- 
 ferent aspect when the report is absolutely confirmed. 
 Biddings are in general not to be opened after confiritia- 
 tion of the report(a') : increase of price alone is not suf- 
 ficient, however large, although it is a strong auxiliary 
 argument where there are other grounds. 
 
 In a case(?/), however, before Lord Rosslyn, this rule, 
 although so frequently acknowledged and acted upon, 
 was not attended to, but biddings were opened after the 
 report was absolutely confirmed, merely on an advance of 
 price. This case is now completely overruled. 
 
 But very particular circumstances may perhaps induce 
 
 (r) Andrews v, Emerson, 7 Ves. jun. 4; White v. Wilson, 14 Ves. 
 jun. 151. See Anon. 3 Madd. 494. - 
 
 (s) Brooks V. Snaith, 3 Ves. & Bea. 144. 
 
 (/) Garstone v. Edwards, 1 Sim. & Stu. 20 ; Lefroy v. Lefroy, 2 
 Rus3. 606. 
 
 (u) Farlow v. Weildon, 4 Madd. 460 ; Brookfield r. Bradley, 1 Sim. 
 
 6 Stu. 23. 
 
 {iv) Williams v. Attenborough, 1 Turn. 70. 
 
 (x) 2 Ves. jun. 63 ; Scott v. Nisbitt, 3 Bro. C. C. 475 ; Boyer v. 
 Blackwell, 3 Anstr. 656; Prideaux v. Prideaux, 1 Bro. C. C. 287; 2 
 Ves. jun. 53 ; 1 Cox, 35. 
 
 (y) Chetham v. Grugeon, 5 Ves. jun. 86 ; and see his Lordship's de- 
 cision in Prideaux v. Prideaux, ubi sup. when Lord Commissioner. 
 
 (*67)
 
 OF THE COURTS OF EQUITY. f^n 
 
 the Court to open the biddings after confirmation of the 
 report, if the advance be considerable(I). 
 
 (*)Thus, in a case(2:) where the owner of the estate (who 
 joined in a motion for the purpose of opening biddings 
 after the report was absolutely confirmed) was in prison 
 at the time of the confirmation, and it appeared that he 
 would have opened the biddings before confirmation of 
 the report, had he been able, and had even directed per- 
 sons to bid more than what the estate sold for, who de- 
 ceived him, and an advance of 4,000/. (being more than 
 one fourth of the original purchase-money) was offered, 
 the biddings were opened on the deposit of the 4,000/. 
 being made. 
 
 Strong as the circumstances in this case were. Lord 
 Eldon, in a late case, expressed great disapprobation of the 
 decision, and determined generally, that after a purchaser 
 has confirmed his report, unless some particular principle 
 arises out of his character, as connected with the owner- 
 ship of the estate, or some trust or confidence, or his own 
 conduct in obtaining his report, the bidding ought not to 
 be opened («). 
 
 And Lord Redesdale, also, in a case before him, held 
 that biddings could not be opened after the report was 
 absolutely confirmed, unless on the ground of fraud on 
 the part of the purchaser. And he considered it to the 
 advantage of suitors to observe greater strictness in open- 
 ing biddings, as it would procure better sales(Z>). 
 
 (2) Watson r. Birch, 2 Yes. jun. 51 ; 4 Bro. C. C. 172. 
 (a) Morice v. the Bishop of Durham, 11 Ves. jun. 57. 
 (6) Fergus v. Gore, 1 Schoales & liefroy, 350. 
 
 (I) In Ireland, a sale under a decree was actually set aside after the 
 purchaser \vas put in possession, and the conveyance to him executed 
 and registered, because another person offered 200/. more than the pur- 
 chaser had paid. Conran r. Barry, Vern. and Scriv. 111. See £x 
 parte Partington, 1 Ball and Beatty, 209. 
 
 (*68)
 
 78 
 
 OF SALES UNDER THE AUTHORITY 
 
 111 a Still later case, Lord Eldon adhered to the same 
 rule, and said that he could not do a thing more mis- 
 chievous to the suitors than to relax further the binding 
 nature of contracts in the Master's office : half the estates 
 (*)that are sold in the Court being thrown away upon the 
 speculation that there will be an opportunity of purchasing 
 them afterwards by opening the biddings(c). 
 
 Fraud will, of course, be a sufficient ground for opening 
 the biddings. Therefore, if the parties agree not to bid 
 against each othev(d), or a survey be made of an estate 
 with some degree of collusion with the tenants(e), and 
 it misrepresents the value and quality of the estate, and 
 some of the purchasers are aware of this fraud in making 
 the survey, and the owner is ignorant of it ; or the pur- 
 chaser of the estate be partner with the solicitor of the 
 cause, and is in possession of some particular knowledge 
 to the benefit of which the other parties were entitled^/}; 
 in all these cases the Court would open the biddings, 
 although the report had been absolutely confirmed. 
 
 Where the biddings are opened, the advance is ordered 
 to be deposited immediately(^), and the costs of the 
 purchaser to be paid by the persons opening the bid- 
 dings(/i) ; but the Court will not direct the Master to 
 allow a specific expense(i). 
 
 If the biddings are opened, the estate may be allotted 
 for sale in a different manner to what it at first was(J). 
 
 (c) "VThite v. Wilson, 14 Ves. jun. 151. 
 
 (d) See 2 Vcs. jun. 52. 
 
 (e) Ryder v. Gower, 6 Bro. P. C. 148 ; and see 2 Ves. jun. 53. 
 (/) Price V. Moxon, July 14, 1764, before Lord Hardwicke. See 
 
 6 Bro. P. C. 155 ; 2 Ves. jun. 54. 
 
 {g) Anon. 6 Ves. jun. 613. 
 
 (h) See Watts V. Martin, 4 Bro. C. C. 113; and see ibid. 178; 
 Upton V. Lord Ferrers, 4 Ves. jun. 700. 
 
 (i) Annon. 1 Ves. jun. 286. 
 
 (/) Watts r. Martin, 4 Bro. C. C. 113. 
 
 (*69)
 
 OF THE COURTS OF EQUITY. >vq 
 
 As the biddings are opened for the benefit of the suitor, 
 no other person will be favored in that respect. 
 
 Thus, upon a motion to open a bidding of 5,020/. (^) 
 upon the ground of mistake as to the time of sale, and an 
 over-bidding of 150/. ; the Lord Chancellor refused it, 
 (*)saying, he would not open it for a less sum than 500/. 
 and that the circumstance that the bidder was too late 
 was no ground at all. 
 
 The person who is desirous of opening the biddings 
 having been present at the sale, is no objection to their 
 being opened, although a greater advance may, on that ac- 
 count, be required (/). Nor is it material that the appli- 
 cant is entitled to a part of the produce of the estates(m). 
 
 A man opening the biddings on behalf of a person 
 not in existence, will himself be decreed to be the pur- 
 chaser(?i). 
 
 Where a person is permitted to open the biddings upon 
 the usual terms, paying the costs, and making a deposit, 
 and the -estate is bought by another person, the person 
 opening the biddings is entitled to take back his deposit ; 
 but he is not entitled to an allowance for his costs, as they 
 are in the nature of a premium paid by him for the oppor- 
 tunity of bidding(o). 
 
 Under special circumstances, however, they might be 
 allowed. If a person come forward for the benefit of the 
 
 (k) Anon. 1 Ves. jun. 453. 
 
 {I) Rigby r. M'Namara, 6 Ves. jun. 117. See Tait v. Lord North- 
 wick, 5 Ves. jun. 655 ; see 15 Ves. jun. 14 ; and see M'Cullock v. 
 Cotbach, 3 Madd. 314, where the Vice-Chancellor ruled contra; but 
 the rule is established by Thornhill v. Thornhill, 2 Jac. & Walk. 347 ; 
 Pearson r. Pearson, 13 Price, 213; Tyndale r. Warre, 1 Jac. 525; 
 Lefroy v. Lefroy, 2 Russ. 606. 
 
 (m) Hooper v. Goodwin, Coop. 95. 
 
 (n) Molesworth v. Opie, 1 Dick. 289. 
 
 (o) Rigby V. M'Namara, 6 Ves. jun. 466 ; I^arl of Macclesfield v. 
 Blake, 8 Ves. jun. 214 ; Trefusis v. Clinton, 1 Yes. & Beam. 361. 
 
 (*70)
 
 go OF SALES UNDER THE AUTHORITY 
 
 family, and the estate at the first sale was knocked down 
 by mistake, or sold at a great under-value, he will be 
 allowed his expenses(jt?). 
 
 It seems, that if a person purchase several lots of an 
 (*)estate, and the biddings are opened as to one, he shall 
 have an option to open them all(^). 
 
 In two late cases the distinction was taken that where 
 the lots, the biddings for which are sought to be opened, 
 were purchased before the other lots bought by the same 
 purchaser, he is entitled to have the biddings opened as 
 to all the lots(r). 
 
 If a purchase be rescinded, and the purchaser has 
 paid his money into court, and it has been laid out 
 upon his application, he is to take back the stock, whether 
 the funds have fallen or risen since the investment(5). 
 
 The authority which the Court has over these contracts 
 enables it in a proper case to relieve the purchaser as 
 well as the suitor. 
 
 Therefore, where the contract is inequitable, the pur- 
 chaser, on submitting to forfeit his deposit, will be dis- 
 charged from his purchase(/). Where, however, the con- 
 tract is not inequitable, a purchaser must proceed in his 
 purchase, and will not be permitted to forfeit his deposit, 
 and abandon the contract, however disadvantageous it 
 may be. 
 
 Thus, on an application to the Court by the persons 
 who opened the biddings for General Birch's estate(M)j 
 to forfeit their deposit, which was resisted by the creditors 
 
 (2?) Earl of Macclesfield v. Blake, tibi sup. ; Owen r. Foulks, 9 
 Ves. jun. 348; West v. Vincent, 12 Ves. jun. 6. 
 
 (q) See 2 Anstr. 657 ; ex parte Tiisley, 4 Madd. 227. n. 
 
 (r) Price v. Price, 1 Sim. & Stii. 386. 
 
 (s) Hodder v. Ruffin, V. C, 21 Mar. 1826, MS. 
 
 (0 Savile v. Savile, 1 P. Wms. 746. 
 
 (tt) MS. ; and see Sewell v. Johnson, Bumb. 76. 
 
 (*71)
 
 OF THE COURTS OF EQUITY. g| 
 
 for whose benefit the estate was sold ; the Court held 
 the purchasers to their bargain, and would not permit 
 them to rescind the contract, although they had given 
 a price which was considered much beyond the value of 
 the estate. 
 
 (*)But where the purchaser has by mistake given an un- 
 reasonable price for the estate, the Court will in a proper 
 case wholly rescind the contract. 
 
 This equity w^as enforced in the case of Morshead v. 
 Frederick(z(;), where it appeared that Smiths, the bankers, 
 were tenants in possession of the house in question, for 
 which they paid two rents, one a ground rent of 56/. to 
 the defendant, and the other an improved rent of 210/. 
 to a third person. The house was directed to be sold, 
 under a decree ; and the plaintiffs, by a broker, treated 
 for the purchase of it, and employed him to value it. 
 The broker had an interview with the attorney concerned 
 in the sale, who stated, that the rent payable for the 
 house was the 6QI. and the broker valued the estate ac- 
 cordingly. A W'ritten agreement was not entered into, 
 but the contract was approved of by the Master, and the 
 money paid into the Bank. The purchasers then moved 
 the Court to rescind the contract, on the ground of mis- 
 take, and the broker proved that the purchasers had not 
 informed him of the rent of 210/. ; and that he was 
 ignorant of the existence of it at the time he made his 
 valuation : and the Court ordered the purchase-money to 
 be repaid, and rescinded the contract. This, however, 
 may lie considered a strong case. It might be argued 
 that the purchasers' only equity was their own negligence. 
 
 Although the solicitor in the cause buy in an estate 
 merely to prevent a sale at an undervalue, yet if he act 
 without authority he will not be discharged from his 
 
 {w) Ch. 20 Feb. 1806, MS. App. No. 10. 
 
 VOL. I. 11 (*72)
 
 g2 OF SALES UNDER THE AETTIIORITY 
 
 purchase. Lord Eldon has said, that it would be a rery 
 wholesome rule to lay down, that the solicitor in the cause 
 should have nothing to do with the sale ; as the certain 
 (*)effect of a bidding by the solicitor in the cause is that 
 the sale is immediately chilled (.t). 
 
 The same rule has been applied to assignees of a 
 bankrupt, who, without authority, bought in an estate or- 
 dered to be sold by the Court upon a petition of a 
 mortgagee(?/). 
 
 It may be observ^ed, in this place, that if a bankrupt's 
 estate be sold, and the purchaser j)ay a deposit, and then 
 the commission is superseded, the Lord Chancellor will, 
 upon petition, order the deposit to be returned, without 
 driving the purchaser to file a bill(2:). 
 
 Where a person bought under the decree for another 
 who died without having adopted the contract, although 
 an order nisi to confirm the purchase in his name had 
 been obtained, the Court refused to order the executors 
 of the purchaser to pay the purchase-money, and the 
 heir declining the purchase, the order nisi was set aside, 
 and a re-sale ordered, and the consideration as to any 
 deficiency that might arise on the re-sale, and by whom 
 the costs of it were to be repaid, were reserved ; it was 
 held that the executors, in a purchase by their testator 
 from the Court, would not be compelled by the heir to 
 pay for the estate without filing a bill(f/). 
 
 If an extended estate be sold under the 25 Geo. 3, 
 c. 35, and the sale be confirmed by the Remembrancer's 
 report, and the usual orders, yet where a good title can- 
 not be made, the court of Exchequer will, upon the 
 
 (x) Nelthorpe v. Pennyman, 14 Ves. jun. 517. 
 
 (y) Ex parte Tomkins, Ch. 23cl Aug. 1816, MS. App. No. 12. 
 
 (2) Ex parte Fector, 1 Buck, 428. 
 
 (a) Lord v. Lord, 1 Sim. 503. 
 
 (*73)
 
 OF THE COURTS OF EQUITY. g3 
 
 motion of the Crown, discharge the purchaser without 
 payment to him of any costs incurred in investigating the 
 title, or in procuring the reports(6)(28). 
 
 (b) Rex V. Cracroft, 1 M'Clel. & You. 460. 
 
 (28) The case of Lawrence v. Monell, 12 Johns. 621. was thus : 
 The respondent Lawrence holding a mortgage against one Sackett ; 
 and the defendant Monell having two judgments against Sackett ; and 
 the defendant, Wood, having a deed of the mortgaged premises, from 
 Sackett, in trust for all h\s creditors, the respondent filed his bill to fore- 
 close the mortgage ; upon which the parties entered into an agreement 
 that the premises should be sold under the direction of a master in 
 Chancery, and the proceeds paid into court ; out of which Lawrence 
 was to be paid ; and the rights of M. W. & S. preserved respectively. 
 A decree was made pursuant to this agreement ; and the master adver- 
 tised the sale. Before the sale, the interest of Sackett was sold under 
 an execution in favor of one G. ; but of the judgment on which it issued 
 Monell had become the owner ; and became the purchaser at the 
 Sheriff's sale. The object of Monell in this was to overreach the deed 
 to Wood in trust ; because G.'s judgment was prior to the latter deed ; 
 but the latter deed was prior to Monell's last judgment. Monell then 
 paid Lawrence his mortgage merely taking a receipt. " Received from 
 Mr. Geo. Monell one of the defendants in this cause, 3,932 & 90." 
 This payment was considered by the solicitor of the mortgagee only as 
 a dcposite until the sale by the master had been made : for so indeed 
 the solicitor of the mortgagee testified. Monell then applied to dis- 
 miss the bill under which a sale had been ordered, but this being de- 
 nied, the sale by the master took place, the sale confirmed : held, that 
 a sale by an officer of the coiirt, will not be set aside ; but the rights of 
 bona jidt purchasers, under such sale, will be protected. Yeates, J. 
 said that " The English rule, requiring a confirmation of the master's 
 report was not applicable here. In England, proceedings arc different : 
 the master opens a book for biddings, and all remains in an un- 
 finished state, and under the perfect control of the court, until the 
 report of sales is confirmed. The master, there, has no authori- 
 ty to execute a conveyance ; that is done by the parties in inter- 
 est only ; and until a confirmation of his report ; the whole of the busi- 
 ness, in relation to the biddings transacted before him, continues open 
 for the exercise of the discretion of the court. Here, the confirmation 
 of the master's report, before the deeds arc executed, is not essential ; 
 it has been rendered unnecessary by the statute, in giving the master
 
 84 
 
 OF SALES UNDER THE AUTHORITY, &c. 
 
 authority to convey to the purchasers. The confirmation of the report, 
 if the sale has been fairly conducted, is of course. And Thompson, J. 
 added in conclusion, " There has been no suggestion that the decree 
 by consent was obtained by fraud or imposition, or that the mortgaged 
 premises were not sold for their full value ; and he (Monell) is now 
 seekin<T to set aside this sale, made pursuant to his own agreement, 
 for the purpose of vesting in himself, solely, the title, and to prevent the 
 equitable distribution of the surplus among the creditors of Sackett 
 The order of the Chancellor therefore, was affirmed ; but Spencer, J. 
 and 10 senators voted for reversing. 
 
 I
 
 [ 85] 
 
 DCHAPTER III. 
 
 OF PAROL AGREEMENTS AND PAROL EVIDENCE. 
 
 With a view to prevent many fraudulent practices 
 which were commonly endeavored to be upheld by per- 
 jury, it was enacted by the 29 Car. II. c. 3, usually called 
 the statute of frauds, that(«) " all leases, estates, interests 
 of freeholds, or terms of years, or any uncertain interest 
 of, in, or out of any messuages, manors, lands, tenements 
 or hereditaments, made and created by livery and seisin 
 only, or by parol, and not put in writing by the parties 
 so making or creating the same, or their agents thereunto 
 lawfully authorized by writing, shall have the effect of 
 leases or estates at will, any consideration for making any 
 such parol leases or estates notwithstanding." But, ne- 
 vertheless, leases not exceeding three years, whereupon 
 the reserved rent should amount to two thirds of the full 
 improved value, were excepted(6). The Act then re- 
 quires the assignment, grant, and surrender of existing 
 interests to be made by writing(c) ; and then(f?) enacts 
 that " no action shall be brought, whereby to charge any 
 person upon any agreement made upon any contract, or 
 sale of lands, tenements, or hereditaments, or any interest 
 
 (o) Sect. I. (c) Sect. 3. 
 
 (6) Sect. 2. (d) Sect. 4. 
 
 C*74)
 
 86 
 
 OF PAROL AGREEMENTS. 
 
 in or concerning them(I)(29), unless the agreement, upon 
 (*) which such action shall be brought, or some memoran- 
 dum or note thereof shall be in writing, and signed by 
 the party to be charged therewith, or some other person 
 thereunto by him lawfully authorized." 
 
 In treating of these legislative provisions, we may 
 consider — 1. What interests are within the statute: — 
 2. What is a sufficient agreement : — 3. What agreements 
 will be enforced, although by parol ; — and 4. In what 
 cases parol evidence is admissible to vary or annul writ- 
 ten instruments. 
 
 (I) " Or upon any agreement not to be performed within a year ;" 
 which clause does not extend to any agreement concerning lands. 
 Hollis V. Edwards, 1 Vern. 159. It is quite clear, that an agreement 
 for sale of lands must be in writing, although the contract is to be 
 performed the next day. See Bracebridge v. Heald, 1 Barn, and Aid. 
 722. 
 
 (29) MEMORANDUM. In most of the United States, provisions 
 by statute, for the prevention of frauds and perjuries, have been found 
 necessary. The English Statute of 29 Car. 2. c. 3. has been the guide 
 to legislative enactment s on this subject. In some of the states, this 
 act has been adopted, almost verbatim ; in others, similar provisions, 
 though with some modification, have been enacted. The want of uni- 
 formity of legislation, in the different states, has given rise to a corres- 
 ponding diversity of judicial opinions. For a similar reason, the Amer- 
 ican decisions, on certain points, are not always in unison with those of 
 Westminster Hall : But wherever the provisions of the English statute 
 have been re-enacted, the construction given them by the English courts, 
 has, generally, been adopted by our own. [^Doivney v. Hoichkiss, 2 
 Day, 225.] The Jlmerican decisions referred to in this edition of Mr. 
 Sugden's Treatise, either in support, or contradiction of the principles 
 laid down by him, are to be understood as having reference to the legis- 
 lative acts of the states, respectively, where such decisions were pro- 
 nounced. 
 
 (*75) 
 
 i
 
 OF PAROL AGREEMENTS. 
 
 87 
 
 SECTION I. 
 
 Of the Interests tvhich are ivithin the Statute. 
 
 It was observed in the case of Crosby v, Wadsworth(e), 
 that collecting the meaning of the first section by aid de- 
 rived from the language and terms of the second section, 
 and the exception therein contained, the leases, &c. meant 
 to be vacated by the first section, must be understood as 
 leases of the like kind with those in the second section, 
 but which conveyed a larger interest to the party than 
 for a term of three years, and such, also, as were made 
 under a rent reserved thereupon ; and the Court therefore 
 determined that a sale of a standing crop of mowing 
 grass, then growing, was not within the first section of the 
 statute, because neither of the foregoing circumstances 
 were to be found in the agreement, although, as the 
 agreement conferred an exclusive right to the vesture of 
 the land during a limited time, and for given purposes, it 
 was, the Court held, a contract or sale of an interest in, 
 or at least an interest concerning lands. 
 
 It was not, however, necessary in the above case, to 
 (*)decide upon the precise construction of the first section, 
 which seems in this respect to be co-extensive with the 
 fourth, and, consequently, every interest which is within 
 the fourth section is equally within the first, unless it 
 come within the saving of the second section. The first 
 and second sections appear to enact, that all interests 
 actually created without writing shall be void, unless in 
 the case of a lease not exceeding three years, at nearly 
 rack-rent, which exception must have been introduced 
 
 (e) 6 East, 610. 
 
 (*76)
 
 88 ' -^^ ^^ PAROL AGREEMENTS. 
 
 for the convenience of mankind, and under an impression 
 that such an interest would not be a sufficient temptation 
 to induce men to commit perjury. Perhaps, therefore, 
 the first section ought to extend to every possible interest 
 which is not within the exception in the second clause. 
 If an estate, of whatever value, should be conveyed to 
 a purchaser by livery of seisin, without writing, the act 
 would avoid the estate, although the purchaser had paid 
 his money. An actual lease for any given number of 
 years, whether with or without rent, or any interest un- 
 certain in point of duration, must, it should seem, equally 
 fall within the provision of the first section, and cannot 
 be sustained unless it come within the saving in the sec- 
 ond section. 
 
 This, however, of itself would not have prevented all 
 the evils which the act intended to avoid ; for although 
 actual estates could not be created, yet still parol agree- 
 ments might have been entered into respecting the future 
 creation of them. To remedy this mischief, the provision 
 in the fourth section was inserted, which, it is conceived, 
 relates not to contracts or sales of lands, fee. but to any 
 agreement made upon any contract or sale of lands, &c.(I), 
 
 (I) This appears to be the true meanhig of the statute, although this 
 branch of the fourth section has been sometimes read as a distinct 
 clause, in which case the word agreement is dropped, and the clause 
 runs thus, " no action to be brought upon any contract or sale of 
 lands," &c. See Anon. 1 Ventr. 361, and 6 East, 611 ; but this clause 
 seems to be governed by the preceding one in the same section, as to 
 agreements made upon consideration of marriage. The statute says, 
 no action to be brought, " to charge any person upon any agreement 
 made upon any consideration of marriage, or upon [any agreement 
 made upon] any contract or sale of lands," &c. The words between 
 crotchets must, it is submitted, be implied. At the same time, there 
 is certainly ground to contend, that the clause would have the same 
 operation if not governed by the words in the preceding clause. 
 
 The statute seems to have been strangely misunderstood in the case 
 of Charlewood v. Duke of Bedford, 1 Atk. 497, the report of which
 
 OF PAROL AGREEMENTS. OQ 
 
 (*)and as agreements were more to be dreaded than con- 
 tracts actually executed, no exception was inserted after 
 (*)the fourth section, similar to that which follows the first 
 section, and consequently an agreement by parol, to create 
 even such an interest as is excepted in the second sec- 
 tion, would be merely void. 
 
 If this be the true construction of the Act it answers 
 the purposes for which it was passed, and the question in 
 all cases must be — Is the interest in dispute actually cre- 
 ated by the parties, or does the contract rest in fieri? If 
 it be actually created, it is avoided by the first section, 
 
 agrees with the Registrar's book. The object of the bill was to com- 
 pel the performance in specie of a parol agreement, by the Duke's 
 steward, to grant a lease. The case, therefore, fell within the fourth 
 section, but the defendant pleaded the first, and to bring his case 
 within it, stated the words of the statute, at the close of that section, 
 to be " any contract for making such lease, or any former law to the 
 contrary notwithstanding." The words really are " any consideration, 
 &c." The framer of the plea must have adopted an error which has 
 been sometimes entertained, that the first section relates to leases, and 
 the fourth to sales, and this notion compelled him to alter the statute in 
 the way he did, for he could not otherwise have brought his case 
 within it. It is observable that Lord C. B. Comyns, before whom the 
 cause was heard, did not notice the mistake. 
 
 Lord Keeper North seems to have entertained the erroneous opinion 
 above noticed ; for, in a case which came before him on a parol agree- 
 ment for a lease, he said that the difficulty that arose upon the act was 
 that it makes void the estate, but does not say the agreement itself shall 
 be void, and therefore, though the estate itself is void, yet, possibly, 
 the agreement may subsist, so that a man may recover dam.ages at law 
 for the non-performance of it ; and if so, he should not doubt to de- 
 cree it in equity ; and he actually sent the parties to law, in order to 
 have the point decided, and for that purpose directed the defendant to 
 admit the agreement. Hollis v. Edwards, 1 Vern. 169. The plaintift' 
 was of course nonsuited in the action, and thereupon Lord North dis- 
 missed the bill. His impression before the trial must, it should seem, 
 have been that the first section related to leases, and the fourth only 
 to sales ; or at least he must have thought that the fourth did not em- 
 brace agreemcjits for leases. 
 
 VOL. I. 12 (*77) (*78)
 
 9Q OF PAROL AGREEMENTS. 
 
 unless saved by the second. If it be not actually created, 
 the agreement cannot be enforced by reason of the fourth 
 section, whatever be the nature of it. But if the first sec- 
 tion were to be restrained beyond the express provisions 
 of the second section, then, although every parol agree- 
 ment for any interest in lands would be void, yet many 
 estates might still be actually raised by parol. The first 
 section, however, seems to embrace interests of every de- 
 scription, whilst the exception relates only to leases of a 
 particular description. One consequence of qualifying 
 all the interests specified in the first section, in the manner 
 proposed by the aid derived from the second section, 
 would be, that an estate in fee might still, as formerly, 
 be conveyed by livery of seisin without writing. But if 
 the doctrine should even be confined to leases, yet it 
 would open a considerable door to perjury. If the two 
 requisites are to concur to bring a lease within the first 
 section, namely, a larger interest than that mentioned in 
 the second section, and a reserved rent, then it should 
 seem that a lease by parol for a thousand years without 
 rent would be valid, notwithstanding the statute. If even 
 one only of these requisites be essential, yet cases of im- 
 portance may be taken out of the Act ; an estate, however 
 valuable, may be claimed under a parol lease for any term 
 short of three years without rent. This is the temptation 
 to perjury which the statute intended to remove. And 
 (*)this mischief must necessarily follow, that if the parties 
 swear to an agreement for such an interest it will be within 
 the statute ; whereas if they swear to an actual demise 
 the case will be taken out of the statute. 
 
 The construction suggested in Crosby v. Wadsworth, 
 of the first section of the statute, has since been attempted 
 to be extended to the third section. It has been contended 
 that the leases mentioned in the third section, as requiring 
 to be assigned by writing, must be intended such leases 
 as are required by the first and second sections of the 
 
 (*79)
 
 Oy PAROL AGREEMENTS. 9] 
 
 statute to be created by deed or writing, viz. leases con- 
 vejing a larger interest to the party than for a term of 
 three years ; but the Lord C. Baron, at nisi prius, ruled 
 otherwise, and appears to have held, that although an 
 interest was created by parol, by virtue of the second 
 section, yet it cannot be assigned without a note in 
 writing, by reason of the third section(/). And even 
 a tenancy from year to year created by parol, cannot be 
 surrendered, although by mutual consent, by parol(^). 
 
 But it has been decided, that a mere license is not 
 within the first section of the statute of frauds. This was 
 decided in the case of Wood v. Lake(/i)(30). A parol 
 
 (/) See Bolting v. Martin, 1 Camp. Ca. 13, but qu. whether the 
 agreement or the assignment was by parol. 
 
 (g) Mollet V. Brayne, 2 Camp. Ca. 103. See Stone v. Whiting, 2 
 Stark. 235 ; Thomson v. Wilson, 2 Stark. 379 ; Phipps v. Sculthorpe^ 
 1 Barn. & Aid. 50 ; Thomas v. Cook, 2 Stark. 408 ; 2 Barn. & Aid. 
 119. 
 
 (h) Say. 3 ; and see Winter v. Brockwell, 8 East, 308 ; Rex v. In- 
 habitants of Standon, 2 Mau. & Selw. 461 ; Tayler r. AVaters, 2 Marsh, 
 651 ; 7 Taunt. 74; Rex v. Inhabitants of Horndon, 4 Mau. & Selw. 
 562. 
 
 (30) See Cook v. Stear7is, 1 1 Mass. Rep. 533, 536. Ricker v. Kel- 
 [ey, 1 Greenl. Rep. 117. Thompson \. Gregory, 4 Johns. Rep. 81. 
 Jackson v. Buell, 9 Johns. Rep. 298. 
 
 In Cook r. Stearns, where the defendant claimed the right by license 
 of the former owner of the land to make the dam, bank and canal in 
 question, the possession of the locns in quo being admitted to be in the 
 plaintif!'; and he claimed the right of entering thereon to repair and re- 
 move obstructions ; " because those, whose estate the plaintiff' now 
 holds, permitted him to enter and make the bank, and dig the canal ;" 
 and without describing the mill as ancient, or setting up any prescriptive 
 right to an easement in the close of the plaintitf, he " alleges (hat he 
 had the consent, legally obtained, to erect his works, of the former owncc 
 of the close ; and because of that consent, the works being out of repair, 
 he entered to make the necessary repairs." The Court considered (he 
 plea of the defendant bad ; it not sh«wing such a license as may be
 
 92 OF PAROL AGREEMENTS. 
 
 agreement was entered into for liberty to stack coals on 
 part of a close for seven years, and that during this term 
 the person to whom it was granted should have the sole use 
 (*)of that part of the close upon which he was to have the 
 liberty of stacking ^oals(I). Lee, C. J. and Dennison, 
 held the agreement to be good. They relied upon the 
 case of Webb and Paternoster(i), where they said it is 
 
 (i) Palm. 71. 
 
 (T) Sayer is but an inaccurate reporter. It is not stated, but the fact 
 is, that an annual payment was reserved in respect of the easement. 
 
 pleaded, and indeed the interest claimed being not in the nature of a 
 license, but of an estate, or at least an easement in the land, which can- 
 not be acquired without writing or prescription, or such a possession or 
 use as furnishes presumption of a grant : neither of which was averred 
 in the plea. "A license," said the Chief Justice, "is technically an 
 authority given to do some one act, or a series of acts on the land of 
 another, without passing any estate in the land. Such as a license to 
 hunt in another's land, or to cut down a certain number of trees. 
 These are held to be revocable when executory, unless a definite term 
 is fixed, but irrevocable when executed. See Viner's Abr. tit. License, 
 A. E. D. G. and the authorities therein cited, which have been examin- 
 ed and found to support the positions laid down by the compiler.. It is 
 also holden that such licenses to do a particular act, but passing no es- 
 tate, may be pleaded without deed. But licenses, which in their nature 
 amount to the granting of an estate for ever so sliort a time, are not 
 good without deed, and are considered as leases, and must always be 
 pleaded as such." Upon the same principles it was held in Pond v. 
 Pond, 14 Mass. R. 403, where the defendant Being sued in trespass for 
 cutting down and carrying away trees on a particular close, he set up a 
 license from the plaintiff; and it appeared that partition was made in the 
 probate court according to the agreement of the parties ; but not so as 
 to constitute a legal partition ; held, that such an agreement was a 
 license to enter and occupy ; but the suing of legal process to effect 
 partition would amount to a revof^ation of the license ; and any subse- 
 quent trespass would be without justification. 
 
 In Jackson v. Buell the point decided was, that where a grantor re- 
 serves in his deed of conveyance the right to erect a dam on the bank 
 of a stream of water specified, it was an interest in the land ; and that 
 ejectment would lie for it. 
 
 (*S0)
 
 GF PAROL AGREEMENTS. 
 
 93 
 
 laid down, that a grant of a license to stack hay upon 
 land, does not amount to a lease of the land. As the 
 agreement in the present case was only for an easement, 
 and not for an interest in the land, it did not amount to 
 a lease, and consequently it was not within the statute of 
 frauds. Mr. Justice Forster concurred in opinion, that 
 the agreement did not amount to a lease, but he inclined 
 to be of opinion, that the words in the statute, any un- 
 certain interest in land, did extend to this agreement ; but 
 Lee and Dennison thought those words related only to 
 interests, which were uncertain as to the time of their 
 duration. After time taken to consider, it was holden, 
 that the agreement was good for the seven years. 
 
 The case referred to in Palmer does not seem to bear 
 out the judgment in the above case : the decision turned 
 upon another point ; but Montague and Haughton both 
 thought that the interest in that case was such as bound 
 the land in the hands of a subsequent lessee. That case 
 arose before the statute pf frauds, and it would require a 
 considerable stretch to make it apply to a case since the 
 statute. No one will deny, that these cases are within the 
 mischief against which the Legislature intended to guard. 
 In Wood and Lake, the plaintiff was to have the sole use 
 of the part of the land upon which he should stack his 
 coals. How is this to be distinguished in substance from 
 an actual demise for seven years ? It appears to be in the 
 very teeth of the statute, which extends generally to all 
 (*)leases, estates or interests. The statute expresses an 
 anxious intention to embrace interests of exery descrip- 
 tion. How can it be argued, that a license not counter- 
 mandable, and which confers the sole use of a ])lace on 
 a man, is not an interest within the statute ? Upon what 
 principle is it, that the person entitled to such an ease- 
 ment may maintain trespass ? This relaxation of the 
 statute holds out a strong temptation to a man in pos- 
 session of land, under a parol agreement, to commit 
 
 (*S1)
 
 94 
 
 OF PAROL AGREEMENTS. 
 
 peijury, in order to ensure to himself a more permanent 
 interest in the land than the statute would permit him 
 to claim, were the real transaction disclosed. The case 
 of Wood V. Lake has, however, been followed in several 
 recent cases. 
 
 It has been decided, that if, after a lease has been 
 granted, the landlord makes improvements on the estate, 
 in consideration of an agreement to pay an additional 
 sum per annum, the sum is not rent, and the agreement 
 is collateral to the lease, and may therefore be recovered 
 upon, although by parol(y). 
 
 The fourth section of the Act extends as well to interests 
 created de dovo out of an estate, as to subsisting interests. 
 Therefore an agreement for an assignment of a lease will 
 not be binding, unless made in writing(/c)(31). 
 
 In a case in Lord Raymond (/), Treby, Chief Justice, 
 reported to the other Justices, that it was a question be- 
 fore him at a trial at nisi prius at Guildhall, whether the 
 sale of timber, growing upon the land, ought to be in 
 writing, by the statute of frauds, or might be by parol ? 
 And he was of opinion, and gave the rule accordingly, 
 (*)that it might be by parol, because it was but a bare 
 chattel; and to this opinion Mr. Justice Powell agreed. 
 This decision, however, may be thought to be overruled by 
 
 ( j) Hoby V. Roebuck, 2 Marsh. 433. 
 
 {k) Anon. 1 Ventr. 361 ; see Poultney v. Holmes, 1 Str. 405. 
 
 (/) Anon. 1 Lord Raym. 182. See Hob. 173 ; 1 Atk. 175. 
 
 (31) Where a person writes his signature, and affixes his seal on the 
 back of a lease it is not an assignment of the lease : And although it be 
 agreed between the assignor and assignee, that J. S. should fill up the 
 assignment over the signature and he does so, the case is still within 
 the statute of frauds. Jackson v. Tihis, 2 Johns. Rep. 430. 
 
 But an assignment of a lease, in writing, though not under seal, is 
 effectual. Hollidaij v. JMarahal, 7 Johns. Rep. 211. 
 
 (*82)
 
 OF PAROL AGREEMENTS. gr 
 
 the late case of Crosby v. Wadsworth(wi), where a sale of 
 a standing crop of mowing grass then growing was held 
 to be within the statute(32). 
 
 The distinction between them appears to be, that in 
 this case, the exclusive right to the vesture of the land 
 was conferred during a limited period, whilst, in the for- 
 mer case, a mere right of entry to cut and carry away 
 the trees would have been held to pass. Indeed, it does 
 ' not appear by whom the trees were to be felled and car- 
 ried away. 
 
 In the very recent case of Smith v. Surman(n), the 
 agreement was to sell trees standing as timber, at so much 
 a foot. The proprietor had given orders to cut them 
 down, and the purchaser bought them after two of them 
 had been actually felled. It was held that this was not 
 a contract within the fourth section, but a contract for 
 the purchase of the trees when they should be cut down 
 and severed from the freehold. 
 
 In Parker v. Staniland, the Court expressed its dis- 
 inclination to extend the case of Crosby v. Wadsworth, 
 which one learned Judge referred to the circumstance, 
 that the grass was growing, and therefore the purchaser 
 had an intermediate interest in the land while the crops 
 were growing to maturity, before they were gathered. 
 Therefore a sale of potatoes in the ground, and which had 
 never been severed, at so much a sack, to be taken away 
 immediately, was held not to be within the statute ; be- 
 cause the contract was confined to the sale of potatoes, 
 (*)and nothing else was in the contemplation of the parties. 
 They were to be taken immediately, and it was quite ac- 
 
 (m) 6 East, 602, el supra ; Waddington v. Bristow, 2 Bos. & Pull. 
 462 ; and see 2 Taunt. 41, j)er Mansfield, C. J. 
 
 (») 9 Barn. & Cress. 561 ; S. C. 4 Man. & R. 455. 
 
 (32) See JVewcomh v. Ramar, 2 Johns. Rep. 421. in nota. 
 
 (*83)
 
 gg OF PAROL AGREEMENTS. 
 
 cidental if they derived any further advantage from being 
 in the land. The purchaser had only an accommodation, 
 and no interest in the soil. The land was considered as 
 a mere warehouse for the potatoes(o). 
 
 In a case decided in the same term in the Common 
 Pleas, where growing turnips were sold, but no particular 
 time was stated for their removal, nor did it appear what 
 the degree of their maturity was, the Court, without ad- 
 verting to these circumstances, held it to be a sale of an 
 interest in land within the statute^/?). It must be admit- 
 ted to be very difficult to distinguish the cases(33). 
 
 (o) Parker v. Staniland, 11 East, 365. 
 
 ( p) Emerson v. Heelis, 2 Taunt. 38 ; see 5 Barn. & Cress. 833. 
 
 (33) It may be proper to notice in this place, that no title will pass to a 
 purchaser of real estate, under a sheriff's sale, without a deed or note in 
 writing. Simonds v. Callin, 2 Caines' Rep. 61. Jackson v. Catling 2 
 Johns. Rep. 248. 
 
 So, a sale of land by town officers, without deed, is within the statute of 
 frauds. Jachson v. Bull, 2 Caines' Cas. in Error, 301. S. C. 1 Johns. 
 Cas. 81. See Thomas v. Trustees, <$-c. 3 Marsh. 299. 
 
 So, a contract for the sale of pews in a house for public worship, is 
 within the statute. Fieeport v. Bariol, 3 Green). 340. An agreement 
 by parol to modify a former agreement respecting an interest in lands, 
 is void : As, where A. leased certain lands to B. and it was afterwards 
 agreed, by parol, that B. should not use the pasture land without paying 
 for it, it was held,'that this agreement was within the statute of frauds. 
 Togon V. JVIooney, 9 Johns. Rep. 358. So, an agreement to extend 
 the time for the performance of a contract in writing for the conveyance 
 of land, is within the statute. Hasbrouck v. Tappen, 15 Johns. Rep. 
 200. 
 
 Possession is an interest in land, within the statute ; and a contract 
 for the sale and delivery of the possession of land and the improvements 
 thereon, must be in writing. Howard v. Easton-, 7 Johns. Rep. 205. 
 But a parol agreement to pay for improvements made on land, is not 
 within the provisions of the statute. Benedict v. Beebe, 1 1 Johns. Rep. 
 145. See Frear v. Hardcnbtirg, 5 Johns. Rep. 272. 
 
 So, an agreement for the exchange of lands is within the statute, and 
 must be in writing. jRz'ce v. Peet, 15 Johns. Rep. 603.
 
 OF PAROL AGREEMENTS. M 
 
 In a Still later case(9), where potatoes stated to be then 
 growing on three acres and a half of land, were sold by 
 parol, at the rate of 25/. per acre, to be dug and carried 
 away by the purchaser, but no time was appointed for 
 that purpose, it was decided that the contract was not 
 within the statute. Lord Ellenborough said, that if this 
 had been a contract conferring an exclusive right to the 
 land for a time, for the purpose of making a profit of the 
 growing surface, it would be a contract for sale of an 
 interest in or concerning lands, and would then fail un- 
 questionably within the range of Crosby v, Wadsworth. 
 But here is a contract for sale of potatoes at so much per 
 acre ; the potatoes are the subject-matter of sale, and 
 whether at the time of sale they were covered with earth 
 in a field or in a box, still it was a sale of a mere chattel ; 
 it falls, therefore, within the case of Parker v. Staniland, 
 and that disposes of the point on the statute of frauds. 
 
 (*)In the later case of Evans v. Roberts(r), a parol 
 agreement to purchase a cover of potatoes, to be turned 
 up by the seller was held not to be within the fourth 
 
 (9) Warwick v. Bruce, 2 Man. & Selw. 205 ; and see Mayfield «• 
 Wadsley, 3 Barn. & Cress. 357; S. C. 5 Dowl. & R. 224. 
 (r) 5 Barn. & Cress. 829 ; S. C. 8 Dowl. & R. 611. 
 
 An agreement made by the owner of land with certain commission- 
 ers, by which they were allowed to use the banks of a river, in remov- 
 ing obstructions, and in deepening and widening the river, and to use, 
 occupy and enjoy the same, for which they were to pay a compensation 
 to the owner, who agreed to allow them to cut a canal through his land, 
 is a contract concerning an interest in land, and must be in writing. 
 Phillips \. Thompson, I.Johns. Ch. Rep. 131. 
 
 A relinquishment of an equity of redemption cannot be proved by 
 parol. Scott V. JWFarland, 13 Mass. Rep. 309. 
 
 An agreement between the purchaser of land, and a third person 
 that he should be admitted as a partner in the purchase, within the stat- 
 ute. Henderson v. Hudson, 1 Munf. 510. But see Bunnell v. Taintot-s^ 
 Admr. 4 Conn. Rep. 668. See also, Parker v. Bodley,A Bibb, 102. 
 VOL. I. 13 (*8-4)
 
 gg OF PAROL AGREEMENTS. 
 
 section, although the crop was in a growing state at the 
 time of the sale. It was held, that a sale of the produce 
 of the land, whether it be in a state of maturity or not, 
 provided it be in actual existence at the time of the con- 
 tract, is not a sale of any interest within the fourth section. 
 The determination of the Courts to escape from the rule 
 in Crosby v. Wadsworth, without overruling that case, 
 renders it somewhat difficult to apply the law to indivi- 
 dual cases ; but the rule in Evans v. Roberts may safely 
 be considered one of general application(34). 
 
 If an entire agreement be made for the sale of real and 
 personal estate, and the agreement as to the land be 
 within the statute, and void, it cannot be supported as. to 
 the personal property which was sold with it(5)(35). 
 
 (s) Cooke V. Tombs, 2 Anst. 420 ; Lea v. Barber, ih. 425, cited. 
 See Chater v. Beckett, 8 Term Rep. 201 ; and see Neal v. Viney, 1 
 Camp. Ca. 471 ; Corder v. Drakeford, 3 Taunt. 382 ; Mayfield v, 
 Wadsley, 3 Barn. & Cress. 367 ; S. C. 5 Dowl. & R. 224. 
 
 (34) A contract for the sale of things annexed to the freehold, but 
 which may be separated without violence, or injury, and which, by the 
 terms of the contract, are to be separated, is not within the statute of 
 frauds. Bosiwick v. Leach, 3 Day, 476. Nor is an agreement not to 
 exercise a right regarding the freehold, as the right of using a mill, &c. 
 within the statute. lb. So, also, it seems, that contracts for the sale of 
 gravel, stones, timber trees, and the boards and bricks of a house to be 
 |)ulled down and carried away, are not within the statute. The statute 
 contemplates a transfer of lands, or some interest in them. lb. 
 
 As to agreements between adjoining proprietors of land, relating to 
 boundaries, See BoyiVs Les. v. Graves, 4 Wheat. 513. Jacksonv. Dife- 
 iing, 2 Caines' Rep. 198. Stutjvesanl v. Tompkins, 9 Johns. Rep. 61. 
 
 An agreement to remove a fence for the purpose of widening a cer- 
 tain road, not within the statute. Storms v. >fnijder, 10 Johns. Rep. 
 109. 
 
 The statute does not apply to promises raised by implication of law. 
 Men V. Pryor, 3 Marsh. Ken. Rep. 306. See Bliss v. Thompson, 4 
 Mass. Rep. 488. See Fischli v. Dumarcshj, 3 Marsh. Ken. Rep. 23. 
 Goodwin v. Gilbert, 9 Mass. Rep. 610. 
 
 (35) See Crawford v. Morrell, 8 Johns. Rep. 2d edit. 
 (*84)
 
 OF PAROL AGREEMENTS. 
 
 99 
 
 SECTION II. 
 Of the form and Signature of the Agreement. 
 
 We may now consider, first, what is a sufficient agree- 
 ment ; 2dly, what is a sufficient signature by the party 
 or his agent ; and 3dly, who will be deemed an agent 
 lawfully authorized. And, 
 
 First then, it is to be observed, that the statute re- 
 quires the writing to be signed only by the person to be 
 charged ; and therefore, if a bill be brought against a 
 (*)person who signed an agreement, he will be bound by 
 it, although the other party did not sign it, as the agreement 
 is signed by the person to be charged (^). This point has 
 been established by the concurrent authority of the Lord 
 Keeper North, Lord Keeper Wright, Lord Chancellor 
 Hardwicke, Lord C. B. Smith, and Bathurst and Aston, 
 Justices, when Lords Commissioners, Lord Chancellor 
 Thurlow, Lord Chancellor Eldon, and Sir Wm. Grant. 
 The legislature has expressly said, that the agreement 
 shall be binding if signed by the party to be charged ; 
 
 (I) Ilatton V. Gray, 2 Ch. Ca. 164 ; Cotton v. Lee, 2 Bro. C. C. 
 664 ; Coleman v. Upcot, 5 Vin. Abr. 527. pi. 17 ; Buckhouse r. 
 Crossby, 2 Eq. Ca. Abi. 32, pi. 44 ; Seton r. Slade, 7 Ves. jun. 265 ; 
 Fowle V. Freeman, MS. ; 9 Ves. jun. 355, S. C. See 1 Scho. & Lef. 
 20 ; and 11 Ves. jun. 592; Western v. Russell, 3 Ves. & Bea. 187; 
 and see Wain v. Warlters, 5 East, 10 ; Egerton v. Matthews, 6 East, 
 307, which do not impeach this doctrine : see particularly 5 East, 16 ; 
 and Allen v. Bennet, 3 Taunt. 169. As to Waini'. Warlters, see Stadt 
 V. Lill, 9 East, 348 ; 1 Camp. Ca. 242 ; Ex parte Minet, 14 Ves. 
 jun. 189 ; E.r pm7e Gardom, 15 Ves. jun. 286 ; Bateman r. Philips, 
 16 East, 272 ; Saunders v. Wakefield, 4 Barn. & Aid. 595; Jenkins 
 V. Reynolds, 3 Brod. & Bing. 14 : S. C. 6 Man. 86. 
 
 (*86)
 
 1 QQ OF PAROL AGREEMENTS. 
 
 and as Lord Hardwicke has observed, the word party in 
 the statute is not to be construed party as to a deed, but 
 person in general(?A) ; but there have been instances in 
 which the want of the signature to the agreement by the 
 party seeking to enforce it, has been deemed a badge of 
 fraud(y) ; but, perhaps, the transaction ought not to be 
 viewed in that light, unless the other party called on the 
 party who had not signed to execute it, in which case a 
 refusal to sign might be held to operate as a repudiation 
 of the contract(tyXI)(36). 
 
 (*)In a late case, Lord C. J. Mansfield observed, that m 
 equity a contract signed by one party would be enforced, 
 and it ivas not dear that it ivas different at law(x). The 
 rule in equity, it is conceived, is founded simply on the 
 words of the statute, which must be equally binding on 
 the courts of law. There is not an objection w^hich can 
 be made to the rule as applicable to an action at law which 
 will not apply with equal force to a suit in equity. In a 
 later case, accordingly, upon the 17th section, the same 
 learned Judge observed, that every one knows it is the 
 
 (u) See 3 Atk. 503. 
 
 \v) See O'Rouke v. Percival, 2 Ball & Beatty, 58. 
 {w) See 2 Ball & Beatty, 371 ; and Martin v. Mitchell, 3 Swanst. 
 428. 
 
 {x) Bovven v. Morris, 2 Taunt. 374. 
 
 (I) The author's anxiety to place the law upon a safer footing, 
 induced him to bring in a bill to amend the statute of frauds. He 
 had not an opportunity of pressing it through the House of Commons ; 
 but as such things are not accessible, and the law will no doubt be 
 altered, it has been thought right to print the bill in the Appendix, 
 No. 11. 
 
 (36) See Bartslow v. Gray, 3 Greenl. Rep. 409. Ballard v. Walk- 
 er, 3 Johns. Cas. 60. Roget v. Merritt, 2 Caines' Rep. 117. Doug- 
 lass V. Spears, 2 Nott & M'Cord, 207. Cosack v. Bescoudres, 1 
 M'Cord, 425. Clason v. Bailey, 14 Johns. Rep. 484. Penniinan v. 
 Hartshorn, 13 Mass. Rep. 87. 
 
 (*86)
 
 OF PAROL AGREEMENTS. |Q| 
 
 daily practice of the Court of Chancery to establish con- 
 tracts signed by one person only, and yet a court of equity 
 can no more dispense with the statute of frauds than a 
 court of law can(y). Lord Eldon has observed, that equity 
 has not upon these points gone further than courts of law : 
 what is the construction of the statute, what within the 
 legal intent of it will amount to a signing, being the same 
 questions in equity as at law. Upon that point, equity 
 professing to follow the law, if a new question should 
 arise, his Lordship said, that he would rather send a case 
 to a court of law(2;). In a still later case at 7iisi prius, 
 where the purchaser only had signed, Lord Tenterden 
 said that it was the duty of the auctioneer to sign, and 
 he had often had occasion to lament they do not do so. 
 What a court of equity would do in the case he could not 
 possibly say. He declined deciding the point according 
 to his opinion, as the counsel would not undertake to carry 
 the same forward on a bill of exceptions(a). 
 
 (*)But although the agreement must be signed, yet it 
 need not be so averred in a bill for a specific performance ; 
 for the writing, unless signed, would not be an agreement, 
 and as the allegation in the bill of course is that there is 
 an agreement in writing, signature must be presumed 
 until the contrary is shown(6)(37). 
 
 If a written agreement has been in a part executed, it 
 seems that an agreement subsequently entered into be- 
 tween the parties, and reduced into writing, will bind them 
 both, if signed by one of them(c). 
 
 A receipt for the purchase-money may constitute an 
 
 (j/) Allen V. Bennett, 3 Taunt. 176. 
 
 (2) 18 Ves. jun. 183. 
 
 (a) Wheeler v. Collier, 1 Mood. & Mai. 123. 
 
 (6) Rist V. Hobson, 1 Sim. & Stu. 543. 
 
 (c) Owen V. Davies, 1 Ves. 82. 
 
 (37) See Cleaves v. Foss, 4 Greenl. 1. 
 
 (*87)
 
 IQ2 OF PAROL AGREEMENTS. 
 
 agreement in writing within the statute((/) ; and it has 
 frequently been decided, that a note or letter will be a 
 sufficient agreement to take a case out of the stat- 
 ute(e)(38) ; but every agreement must be stamped before 
 it can be Yead(f) ; and, as this ought to be done, the 
 Court will permit the cause to stand over to get the 
 agreement stamped, and will assist either party in obtain- 
 ing it for that purpose. 
 
 Thus, in Fowle v. Freeman(^), the agreement was sent 
 by the vendor to his attorney, with a letter written at the 
 bottom, directing him to prepare a technical agreement. 
 The vendor afterwards refused to perform the contract, 
 and the attorney would not deliver the agreement to the 
 purchaser for the purpose of getting it stamped, contend- 
 ing that it was a private letter to him ; but the Court, 
 (*)on motion, ordered it to be delivered to the purchaser 
 for that purpose. 
 
 (d) Coles V. Trecothick, 9 Ves. jun. 234 ; Blagden v. Bradbear, 
 12 Ves. jun. 466. 
 
 (e) Coleman v. Upcot, 5 Vin. Abr. 527, pi. 17 ; Backhouse v. 
 Crossby, 2 Eq. Ca. Abr. 32, pi. 44. 
 
 (/) Ford V. Compton ; Hearne v. James, 2 Bro. C. C. 32, 309. 
 
 ig) Rolls, March 8, 1804. MS. 9 Ves. jun. 361, S. C. but not re- 
 ported as to this point. See infra, ch. 4. s. 3 ; Clarke v. Terrel, 1 
 Smith's Rep. 399 ; Coles v. Trecothick, 9 Ves. jun. 234. 
 
 (38) In South Carolina, it has been decided that a receipt signed by 
 the vendor, in these words, " Received of A. 20 dollars, being on ac- 
 count of a plantation on the Cypress, sold to him this day for 2,200 dol- 
 lars, payable in different instalments, as per agreement. Charleston» 
 August 1, 1816, was sufficient to take the case out of the statute of 
 frauds. Cosack v. Descoudres, 1 M'Cord, 425. 
 
 Where an agent had agreed, by parol, to bid for his principal, at a 
 sheriff's sale, for certain real estate, and who took the titles in his own 
 name, the case will be taken out of the statute of frauds, by an account 
 made out and signed by him, charging his principal with the purchase- 
 money ; in which case, the agent was decreed to hold the estate in 
 trust. Denlon v. JWKenzic, 1 Des. 289. 
 
 (*88)
 
 OF PAROL AGREEMENTS. |Q3 
 
 But if the agreement is admitted by the answer, so as to 
 dispense with the necessity of proving it, the office-copy 
 of the bill, or, if the defendant refuse to produce it, the 
 record itself, may be read in support of the plaintiff's case, 
 and need not be stamped, nor can the fact of the agree- 
 ment not being stamped be taken advantage of(^). 
 
 If, upon a treaty for sale of an estate, the owner write 
 a letter to the person wishing to buy it, stating, that if 
 he parts with the estate it shall be on such and such terms 
 (specifying them) ; and such person, upon receipt of the 
 letter, or within a reasonable time after the offer is made(z), 
 accept the terms mentioned in it, the owner will be com- 
 pelled to perform the contract wi specie(j)(3d). 
 
 So if a man (being in company) make offers of a bar- 
 gain, and then write them down and sign them ; and 
 another person take them up and prefer his bill, that will 
 be a sufficient agreement to take the case out of the stat- 
 ute (/c). 
 
 But if it appear tfiat, on being submitted to any person 
 for acceptance, he had hastily snatched it up, had refused 
 the owner a copy of it ; or if, from other circumstances, 
 fraud in procuring it may be inferred, in case of an ac- 
 tion, it will be left to the jury to say whether it was in- 
 tended by the defendant, at first, to be a valid agreement 
 on his part, or as only containing proposals in writing, 
 
 (h) Huddleston v. Briscoe, 11 Ves. jun. 583. 
 (i) See 3 Mer. 454. 
 
 (j) Coleman v. Upcot, 6 Vin. Abr. 627, pi. 87. See Gaskarth v. 
 liOrd Lowther, 12 Yes. jun. 107. 
 (k) S. C. jjer Lord Chancellor. 
 
 (39) An offer of a bargain, by one person to another, imposes no ob- 
 ligation on the former, until it is accepted by the latter, according to the 
 terms of the offer. Any qualification of those terms invalidates the of- 
 fer, without the assent of him who made it. Eliason v. Henshmv, 4 
 Wheat. 225, 228.
 
 JQ^ OF PAROL AGREEMENTS. 
 
 subject to future revision (/) : and if the aid of equity 
 be sought, these circumstances would have equal weight 
 (*)witli the Court. So in every case it must be consider 
 ed, whether the note or correspondence import a concluded 
 agreement : if it amount merely to treaty, it will not sus- 
 tain an action or suit (m) (40). 
 
 The letters will not constitute an agreement unless the 
 answer to the offer is a simple acceptance, without the 
 introduction of any new term(w). 
 
 And although a given time be named in the offer for 
 the acceptance of it, yet it may be retracted at any time 
 before it is actually accepted(o). 
 
 And where a letter or other writing do not in itself 
 evidence all the terms of tllfe engagement by which the 
 person signing it consents to be bound, but it requires 
 from the other party not a simple assent to the terms 
 stated, but a special acceptance which is to supply a 
 farther term of the agreement ; there it is obvious that 
 such special acceptance must be expressed in writing, for 
 otherwise the whole agreement will not be in writing, 
 within the statute of frauds(p). 
 
 The note or writing must specify the terms of the agree- 
 ment, for otherwise all the danger of peijury which the 
 statute intended to guard against would be let in(41). 
 
 (/) See Knight v. Crockford, 1 Esp. Ca. 189. 
 
 (m) Huddleston V. Briscoe, 11 Ves. jun. 683; Stratford v. Bos- 
 worth, 2 Ves. & Bea. 341 ; Ogilvie v. Foljambe, 3 Mer. 53. 
 
 (n) Holland v. Eyre, 2 Sim. & Stu. 194 ; Routledge v. Grant, 4 
 Bing. 653 ; 1 Moore & Payne, 717 ; Smith v. Surman, 9 Barn. & 
 Cress. 561. 
 
 (o) Routledge v. Grant, tibi sup. 
 
 {p) Boys V. Ayerst, 6 Madd. 316. 
 
 (40) See Hobby i-. Finch, Kirby, 14. 
 
 (41) A writing acknowledging the reception of a sum of money, be- 
 ing the cash part of the consideration of a sale of land to the plaintiff, 
 
 (*89)
 
 OF PAROL AGREEMENTS. ]Q5 
 
 Thus, upon the sale of" nine houses which were in 
 mortgage, the vendor wrote a letter to the mortgagee to 
 this effect: "Mr. Leonard, pray deliver my writings to 
 the bearer, I having disposed of them. Am, &c." The 
 vendor afterwards refused to perform the contract, and 
 pleaded the statute of frauds to a bill filed by the pur- 
 chaser for a specific performance, and the plea was 
 (*)allowed ; because it ought to be such an agreement as 
 specified the terms thereof, which this did not, though 
 it was signed by the party ; for this mentioned not the 
 sum that was to be paid, nor the number of houses that 
 were to be disposed of; whether all, or some, or how 
 many; nor to whom they were to be disposed of; neither 
 did this letter mention whether they were disposed of by 
 way of sale or assignment of lease(9) : but where the 
 
 {q) Seagood v. Meale, Prec. C'ha. 560; Rose v. Cunynghame, 11 
 Ves. jun. 550 ; Card v. JafiVay, 2 Scbo. & Lef. 374 ; Lord Ormond v. 
 Anderson, 2 Ball & Beat. 363 ; and see Champion v. Plummor, 1 New 
 Rep. 252 ; Hinde v. Whitehouse, 7 East, 558 ; Cooper v. Smith, 15 
 East, 103 ; Richards v. Porter, 6 Barn. & Cress. 437 ; S. C. 9 Dowl. 
 & R. 497 ; all four cases on the 17th section. 
 
 without saying more, is not such a memorandum as will take the case 
 out ot' the statute of frauds. Ellis v. Deadman, 4 Bibb, 466. 
 
 A memorandum of the sale of land, to be effectual, must not only be 
 signed by the party to be charged, but must contain the substantial terms 
 of the contract, expressed with such certainty that they may be under- 
 stood from the contract itself, or some other writing to which it refers, 
 without resorting to parol evidence. Parkliurst v. Van Cortlandt, 1 
 Johns. Ch. Rep. 273. S. C. on appeal, 14 Johns. Rep. 15. See Abeel 
 V. Radcliff, 13 Johns. Rep. 297. Givens v. Caldey, 2 Des. 188. Par- 
 ker V. Bodley, 4 Bibb, 102. Colson v. Thompson, 2 AVheat. 336, 341. 
 In Virginia, it has been decided, that a letter containing a promise 
 to make a deed of a tract of land, " according to contract," is a suf- 
 ficient memorandum, under the statute of frauds, notwithstanding the 
 terms of the contract are not mentioned ; provided the party claiming 
 the conveyance, can prove by the testimony of one witness, the price 
 which was agreed to be paid for the land. Johnson v. Ronald's Admr. 
 4 Munf. 77. 
 
 VOL. .. 14 (*90)
 
 106 
 
 OF PAROL AGREEMENTS. 
 
 property is described generally as " Mr. O.'s house," pa- 
 rol evidence has always been admitted to show to what 
 house the treaty related(r). 
 
 So where(5), upon a parol agreement, the vendor sent 
 a letter to the purchaser, informing him that, at the time 
 he contracted for the sale of the estate, the value of the 
 timber was not known to him, and that he (the purchaser) 
 should not have the estate, unless he would give a larger 
 price ; Lord Hardwicke held, that the letter could not be 
 sufficient evidence of the agreement, the terms of it not 
 being mentioned in the agreement itself. 
 
 So in a recent case, where an auctioneer's receipt for 
 the deposit was attempted to be set up as an agreement, 
 the Master of the Rolls rejected it, because it did not state 
 the price to be paid for the estate ; and it could not be 
 collected from the amount of the deposit, as it did not 
 appear what proportion it bore to the price(^). 
 
 And here we may notice a case where an agreement was 
 (*)executed which referred to certain covenants, which 
 had been read, contained in a described paper, which, in 
 fact, contained the terms of the agreement. It appeared 
 that all the covenants contained in that paper had not 
 been read ; and which of them had been read, and which 
 had not, was the difficulty, which could only be solved by 
 parol testimony ; and Mr. Justice Buller held clearly, 
 that such evidence was inadmissible(M), as it would intro- 
 duce all the mischiefs, inconvenience, and uncertainty 
 the statute was designed to prevent ; and Lord Redesdale 
 has since unqualifiedly approved of this decision (?(;). 
 
 (r) Ogilvie v. Foljambe, 3 Mer. 53. 
 
 (s) Clerk v. Wright, 1 Atk. 12 ; and see Clinan v. Cooke, 1 Scho. 
 & Lef. 22. 
 
 (/) Blagdenv. Bradbear, 12 Ves. jun. 46G ; see Elmore v. Kings- 
 cote, 5 Barn. & Cress. 583 ; S. C. 8 Dowl. & R. 343. 
 
 («) Brodie v. St. Paul, 1 Ves. jun. 326; Higginson v. Clowes, 15 
 Ves. jun. 516 ; Lindsay v. Lynch, 3 Sch. & Lef. 1. 
 
 {v>) 1 Sch. & Lef. 38; and sec O'Herlihy v. Hedges, ibid. 123. 
 
 (*91)
 
 OF PAROL AGREEMENTS, 
 
 107 
 
 Neither will a performance be compelled on a note or 
 letter, if any error or omission, however trifling, appear 
 in the essential terms of the agreement. 
 
 Thus in a case(2) (I) before Lord Hardwicke, the 
 bill was brought to have a specific performance of an 
 agreement, from letters which had passed between the 
 parties. It appeared, that a certain number of years pur- 
 chase was to be given for the land, but it could not be 
 ascertained whether the rents upon a few cow-gates were 
 (*)5s. or Is. ; apd although there was no other doubt, 
 Lord Hardwicke held, that such an agreement could not 
 be carried into execution. He said, that in these cases it 
 ought to be considered, whether at law the party could 
 recover damages ; for if he could not, the Court ought 
 not to carry such agreements into execution. 
 
 The late Lord C. J. Mansfield observed, that there had 
 been many cases in Chancery, some of which he thought 
 had been carried too far, where the Court had picked 
 out a contract from letters, in which the parties never 
 certainly contemplated that a complete contract was con- 
 tained (y). 
 
 {x) Lord Middleton v. Wilson, et e contra, Chan. 1741, MS. ; S. C. 
 Lofft, 801, cited. See 9 Ves. jun. 252 ; Stokes v. Moore, 1 Cox, 219 ; 
 Popham V. Eyre, Lofl>, 786 ; Gordon v. Trevalyan, 1 Price, 64 ; Blore 
 V. Sutton, 3 Mcr. 237. 
 
 iy) 3 Taunt. 172. 
 
 (I) The case is in Reg. Lib. 1741, fo. 260, by the name of Lord 
 Middleton v. Eyre. The estate was sold by an agent to Dr. AVilson, 
 by parol, and the parties appear to have bound themselves by letters, 
 the particulars of which do not appear in the Register's book. The 
 parties beneficially interested afterwards sold the estate for a greater 
 price to Lord Middleton, who filed a bill for a specific peformance of 
 the agreement, and Dr. Wilson filed a cross-bill. The cross-bill was 
 dismissed with costs, and in the original cause a specific performance 
 was decreed. The point in the text is not stated in the Registrar's 
 book. 
 
 (*92)
 
 2Qg OF PAROL AGREEMENTS. 
 
 But although a letter do not in itself contain the whole 
 agreement, yet if it actually refer to a writing that does, 
 that will be sufficient, although such writing is not 
 signed (43). 
 
 Thus in a case where an estate was advertised to be let 
 for three lives, or thirty-one years, and an agreement was 
 entered into for a lease, in which the term for which it 
 was to be granted was omitted ; Lord Redesdale held, that 
 if the agreement had referred to the advertisement, parol 
 evidence mig^ht have been admitted to shjow what was the 
 thing (namely the advertisement) so referred to, for then 
 it would be an agreement to grant for so much time as 
 was expressed in the advertisement ; and then the iden- 
 tity of the advertisement might be proved by parol evi- 
 dence (z)(44). And Sir William Grant, in a late case, ex- 
 pressed his opinion, that a receipt which did not contain 
 the terms of the agreement, might have been enforced as 
 an agreement, had it referred to the conditions of sale, 
 (*)which would have entitled the Court to look at them 
 for the terms(«). 
 
 So an agreement not containing the name of the buyer 
 may be made out by connecting it with a letter from the 
 buyer on the subject(6). 
 
 (z) See Clinan v. Cooke, 1 Scho. & Lef. 22 ; and see Cass v. Wa- 
 terhoiise, Prec. Cha. 29 ; Hiiide v. Wliitehouse, 7 East, 558 ; Feoffees 
 of Heriot's Hospital v. Gibson, 2 Dow, 301 ; Powell v. Dillon, 2 Ball 
 & Beat. 416. 
 
 (a) Blagden v. Bradbear, 12 Ves. jun. 466 ; and see Shippey v. Der- 
 rison, 5 Esp. Ca. 190 ; Hinde v. Whitehouse, 7 East, 558 ; Kenwor- 
 thy u. Schofield, 2 Barn. & Cress. 945 ; S. C. 4 Dowl. & R. 556 ; 1 
 Turn. & Russ. 352. 
 
 (6) Allen r. Bennet, 3 Taunt. 169; Western v. Russell, 3 Ves. & 
 Bea. 187. 
 
 (43) A reference in a deed, to a will, not executed pursuant to stat- 
 ute, will have the effect of incorporating it with, and making it a part of 
 the deed. Igardv. Montgomery, 1 Nott & M'Cord, 381. 
 
 (44) See Johnson v. DoaaUVs Achnr. 4 Munf. 77. 
 
 ^^•9.3) 

 
 OF PAROL AGREEMENTS. 
 
 109 
 
 In a case(c) where an agreement for sale was reduced 
 into writing, but not signed, owing to the vendor having 
 failed in an appointment for that purpose ; the vendee's 
 agent wrote to urge the signing of the agreement ; and 
 the vendor wrote in answer a letter, in which, after stating 
 his having been from home, he said, " his word should 
 always be as good as any security he could give." And 
 this was held by Lord Thurlow to take the case out of 
 the statute, as clearly referring to the written instrument. 
 The ground of this decision was, that the vendor had 
 agreed, by writing, to sign the agreement. If he had 
 said he never would sign it, he could not have been 
 bound ; but if he said he never would sign it, but would 
 make it as good as if he did, it would be a promise to 
 perform it ; if he said he would never sign it, because 
 he would not hamper himself by an agreement, it would 
 be too perverse to be admitted (J). It appears that 
 Lord Thurlow was diffident of his opinion in this case ; 
 and Lord Redesdale has declared, that he had often dis- 
 cussed the case, and he could never bring his mind to 
 agree with Lord Thurlow's decision, because he (Lord 
 Redesdale) thought the true meaning of the agreement 
 (*)was, " I will not bind myself, but you shall rely on my 
 word(e)." 
 
 But in these cases there must be a clear reference to 
 the particular paper, so as to prevent the possibility of 
 one paper being substituted for another(y). 
 
 And if the agreement is defective, and the letter refers 
 to a different contract from that proved by the opposite 
 
 (c) Tawney v. Crovvther, 3 Bro. C. C. 161,318; and see Forster 
 V. Hale, 3 Ves. jun. 696 ; Cooke v. Tombs, 2 Anstr. 420 ; Saunder- 
 son V. Jackson, 2 Bos. & Pull. 238 ; and 9 Ves. jun. 250. 
 
 (d) Per Lord Thurlow, 3 Bro. C. C. 320. 
 
 (e) See 1 Scho. & Lef. 34 ; and see Tanner r. Smart, 6 Barn. & 
 Cress. 603 ; S. C. 9 Dowl. & R. 549. 
 
 (/) Boydell r. Drummond, 11 East, 142. 
 
 (*94)
 
 110 
 
 OF PAROL AGllEExMENTS. 
 
 party, the letter cannot be adduced as evidence of the 
 contract set up. The letter must be taken altogether, 
 and if it falsify the contract proved by the parol testi- 
 mony, it will not take the case out of the statute(^-). 
 
 As we shall hereafter see, an auctioneer is an agent 
 lawfully authorized for the vendor and purchaser within 
 the statute. Upon the sale of estates by auction, a de- 
 posit is almost universally paid, for which the auctioneer 
 gives a receipt, referring to the particulars, or indorsed 
 on them, and amounting, in most cases, to a valid agree- 
 ment on the part of the vendor within the statute(/<.). 
 And it seems that a bill of sale, or entry by the auctioneer, 
 of the account of the sale, in his books, stating the name 
 of the owner, the person to whom the estate is sold, and 
 the price it fetched, would be deemed a sufficient memo- 
 randmii of the agreement to satisfy the statute(z). This, 
 however, it clearly would not, unless it either contained 
 the conditions of the sale and the particulars of the pro- 
 perty, or actually referred to them, so as to enable the 
 Court to look at them(y'j(45). 
 
 (*)A note or letter, written by the vendor to any third 
 person, containing directions to carry the agreement into 
 execution, will, subject to the before-mentioned jules, be 
 
 ig) Cooper V. Smith, 15 East, 103. 
 
 {h) See Blagden v. Bradbear, 12 Ves. jutir 466, et supra. 
 
 (i) See Emmerson v. Heelis, 2 Taunt. 33, elinfra ; but see Mussell 
 V. Cooke, Prec. Cha. 533 ; Charlevvood v. Duke of Bedford, 1 Atk. 
 497 ; Ramsbottom v. Mortley, 2 Mau. & Selw. 445. 
 
 {j) Blagden v. Bradbear, uhi sup. Hinde v. Whitehouse, 7 East, 558 ; 
 Kenworthy v. Schofield, 2 Barn. & Cress. 945; S. C. 4 Dow). & R. 
 556. 
 
 (45) See Clason v. Baileij, 14 Johns. Rep. 490. Davis v. Robertson, 
 1 Rep. Con. Ct. 71. 
 
 The original memorandum made by the auctioneer must be produc- 
 ed on the trial, if in existence ; a copy will not be received as evi- 
 dence, lb. 
 
 (*95)
 
 OF PAROL AGREESIENTS. i j i 
 
 a sufficient agreement to take a case out pf the statute(A;). 
 This was laid down by Lord Hardwicke, who said, that 
 it had been deemed to be a signing within the statute, 
 and agreeable to the provision of it. And the point was 
 expressly determined, in the year 1719, by the Court of 
 Exchequer(/). — Upon an agreement for an assignment 
 of a lease, the owner sent a letter, specifying the agree- 
 ment, to a scrivener, with directions to draw an assign- 
 ment pursuant to the agreement ; and Chief Baron Bury, 
 Baron Price, and Baron Page, were of opinion, that the 
 letter was a writing within the statute of frauds. And 
 the same doctrine appears to apply to a letter written by 
 a purchaser (m). 
 
 In Kennedy v. Lee(?i), Lord Eldon observed, that in 
 order to form a contract by letter, he apprehended nothing 
 more was necessary than this, that when one man makes 
 an offer to another to sell for so much, and the other 
 closes with the terms of his offer, there must be a fair 
 understanding on the part of each as to what is to be the 
 purchase-money, and how it is to be paid, and also a 
 reasonable description of the subject of the bargain. It 
 must be understood, however, that the party seeking the 
 specific performance of such an agreement, is bound to 
 find in the correspondence, not merely a treaty, still less 
 a proposal for an agreement, but a treaty w ith reference 
 to which, mutual consent can be clearly demonstrated, or 
 a proposal met by that sort of acceptance, which makes it 
 (*)no longer the act of one party but of both. It follows, 
 that he is bound to point out to the Court, upon the face 
 of the correspondence, a clear description of the subject- 
 matter relative to which the contract was in fact made and 
 
 (Ar) Wclford V. Beazely, 3 AtU. 503. See Seagood v. Meale, Prec. 
 Chu.660 ; Cooke v. Tombs, 2 Anstr. 420. 
 (/) Smith V. Watson, Biuib. 65 ; S. C. MS. 
 {ill) Rose V. Cunynghame, 11 Vee. jun. 550. 
 {n) 3 Mer. 441 ; and see Ogilvie r. Foljambe, 3 Mer. 53. 
 
 (*96)
 
 I 12 OF PAROL AGREEMENTS. 
 
 entered into. His Lordship added, that he did not mean 
 (because the cases which had been decided would not 
 bear him out in going so far) that he was to see that both 
 parties really meant the same precise thing, but only that 
 both actually gave their assent to that proposition, which, 
 be it what it may, de facto arises out of the terms of the 
 correspondence. The same construction must be put 
 upon a letter, or a series of letters, that would be applied 
 to the case of a formal instrument ; the only difference 
 between them being, that a letter or correspondence is 
 generally more loose and inaccurate in respect of terms, 
 and creates a greater difficulty in arriving at a precise 
 conclusion. 
 
 In Cooth V. Jackson(o), Lord Rosslyn put the case of 
 a bond of reference to a surveyor, the price to depend 
 upon his "valuation, only to ascertain how much an acre 
 the purchaser was to pay for the land. And his Lordship 
 said, he should conceive that not to be within the statute. 
 
 But rent-rolls, particulars of estates, abstracts, &;c. de- 
 livered by the vendor on the treaty for sale, will not be 
 considered as an agreement, although signed by him, and 
 containing the particulars of the agreement ; nor will let- 
 ters written, or representations made by him, to creditors, 
 concerning the sale, receive that construction. 
 
 Thus, in a casefjy) where A agreed by parol with B 
 for the purchase of lands ; shortly afterwards, a rent-roll 
 was delivered to A, which B dated and altered in his 
 own hand-writing ; and it was intituled, " Land agreed 
 (*)to be sold by B to A, from, &c. at twenty-one years pur- 
 chase, for the clear yearly rent." An abstract of the title, 
 also, stating the contract, was delivered by ^'s agent, and 
 also further particulars and papers at different times. B 
 also wrote to several of his creditors, informing them that 
 
 (o) 6 Yes. jun, 17. 
 
 (p) Whaley v. Bagenel, 6 Bro. P. C. 5. 
 
 (*97) 

 
 OF PAROL AGREEiMENTS. 
 
 US 
 
 he had agreed with A. for the sale of the estate, at twenty- 
 one years purchase ; referred tenants to A. as owner of 
 the estate ; and set up the contract as a bar to an elegit, 
 B. afterwards refused to perform the agreement ; and to 
 a bill filed for a specific performance, pleaded the statute 
 of frauds, and the plea was allowed. 
 
 So, in a later case(</), upon a bill filed by a Vendee, for 
 a specific performance of a parol agreement for sale of 
 lands, it appeared that the vendor gave the purchaser a 
 particular of the property to be sold, with the terms and 
 conditions, all in his own hand-writing, and signed by 
 him ; and it was afterwards delivered, by agreement of 
 both parties to an attorney, to prepare the conveyance 
 from, who prepared a draft, and brought it to the parties, 
 and they read over and approved of it, and agreed ta 
 execute the same, whenever a fair copy could be written 
 out. The defendant, however, refused to fulfil his part 
 of the agreement, and pleaded the statute of frauds to the 
 bill ; and, as the particular was delivered at the outset 
 of the treaty, no agreement being then made, the Court 
 held it could only be delivered as a list or catalogue of 
 the matters for sale, to enable the purchaser to form 
 a proper estimate of their value ; that the signing the 
 particular could have no other effect than to give it 
 authenticity, as a true list of the items then offered for 
 sale ; and that the subsequent acts could not affect the 
 original nature of the particular, and turn it into an agree- 
 ment. 
 
 (*)Although an agreement be reduced into writing by 
 
 (9) Cook I'. Tombs, 2 Anst. 420 ; and see Chss v. Wateihouse^ 
 Prec. Cha. 29. 
 
 vor.. I. 16 (*98)
 
 1 14 OF PAROL AGREEMENTS. 
 
 a person present at the making of it, yet if the parties do 
 not sign it, they will not be bound by it(r)(46). 
 
 If an agreement contain all the terms, the sending of 
 it, as instructions to a person to prepare a proper agree- 
 ment, will not be deemed an intention to extend the 
 agreement, but merely to reduce it into technical lan- 
 guage. 
 
 Thus, in Fowle v. Freeman (s), after some treaty for 
 the purchase of an estate, certain terms were agreed upon 
 and written down by Freeman the vendor, and afterwards 
 written out by him, as an agreement; viz. — "March 
 12th, 1803. I agree to sell to Mr. Fowle my estate, &c. 
 for the sum of 27,000/. upon the following conditions, 
 &c." [stating them.] Freeman signed this agreement, 
 and read it to Fowle, who approved of it. Freeman then 
 underwrote a letter to his solicitor in town to the follow- 
 ing effect : — " Sir, please to prepare a proper agreement 
 for Mr. Fowle and me to sign, and send it to me at this 
 place. You will also deliver to Mr. Everett," (the gen- 
 tleman who carried the letter to town,) " an abstract of 
 my title-deeds for his examination. As soon as the title- 
 deeds are approved of, he engages to lend me 5,000/. till 
 Michaelmas next." The letter was signed and dated by 
 him, and was delivered by Mr. Everett to the solicitor in 
 
 (r) Gunter v. Halsey, Ambl. 586 ; Whitchurch v. Bevis, 2 Bro. C. 
 C. 659 ; Ramsbottom v. Tunbridge, Ramsbottom v. Mortley, 2 Mau. 
 & Sehv. 434. 445. 
 
 (s) Rolls, 8th March, 1801, MS. ; 9 Ves. Jun. 351, S. C. 
 
 (46) A parol agreement for the sale of land will not be decreed 
 specifically, though the vendor had given instructions, in writing, stating 
 the terms, to an attorney, to draw the deeds ; and though the deeds 
 were drawn in pursuance of such instructions, and the vendor took 
 them home and wrote to the vendee, informing her that they were ready, 
 and requested her to attend and settle the business, but died before the 
 parties met. Givens v. Calder, 2 Des. 171.
 
 OF PAROL AGREEMENTS. |J5 
 
 town. Freeman afterwards refused to perform the agree- 
 ment ; and, to a bill filed by Fowle for a specific per- 
 formance, pleaded the statute of frauds. The Master of 
 the Rolls held, that if the attorney had prepared an agree- 
 ment, according to the letter, Freeman would have been 
 compelled to execute it, and the attorney could not alter 
 (*)the agreement itself in any one respect. A letter or 
 proposal will do, although the party repents ; and many 
 decrees have been founded merely on letters. If this ob- 
 jection were to hold, he said, it might be contended, that 
 if an agreement contained a reference to title-deeds to 
 be formally executed, it would not do ; and his Hnor 
 decreed a specific performance. 
 
 In these cases it should be observed, that letters may 
 be stated in a bill as constituting the alleged agreement, 
 or as evidence of an alleged parol agreement. In the 
 first case, the defendant may insist that they do not make 
 out a concluded agreement, and no extrinsic evidence 
 can be received; in the latter he may plead the statute 
 of frauds(i). 
 
 II. We are next to consider what is a sufficient sig- 
 nature by the party or his agent. Before the statute of 
 frauds, an agreement, although reduced into writing and 
 signed, was not considered as a written agreement unless 
 sealed ; but it was regarded 'as a parol agreement, and 
 the writing as evidence of it(i^). 
 
 It has been justly said that the same rule prevails 
 since the statute of frauds(a-) ; for the law of England 
 recognizes only two kinds of contracts ; viz. specialties 
 
 (/) Birce v. Bletchley, 6 Madd. 17. 
 (tt) See 1 Ch. Ca. 85. 
 
 (x) See Marq. of Normanby v. Duke of Devonshire, 2 Freem. 21G. 
 
 (*99)
 
 116 
 
 OF PAROL AGREEMENTS. 
 
 and parol agreements, which last include all writings not 
 under seal, as well as verbal agreements not reduced into 
 writing(?/)(47). In the case of Wheeler v. Newton(^), 
 the agreement not having been sealed, seems to have 
 been insisted upon, as leaving the case within the statute : 
 and (*)Lord Commissioner Rawlinson said, that agree- 
 ments in writing, though not sealed, had some better 
 countenance since the statute of frauds and perjuries than 
 they had before(I). 
 
 This doubt must have arisen from the common-law 
 doctrine before noticed, that an agreement not under seal 
 is simply a parol agreement, and the writing evidence of 
 it; but there certainly was no foundation for the doubt : 
 the statute makes signing only requisite to the validity of 
 a written agreement, and it is now clearly established, 
 that sealing is not necessary ; and if a man be in the 
 habit of printing or stamping instead of writing his name, 
 he would be considered to have signed by his printed 
 pame(«)(48). 
 
 (y) Rann v. Hughes, 7 Term Rep. 350, n. ; S. C. MS. in tot. verbis. 
 (z) Free. Ch. 16. 
 
 (a) Saundersonr. Jackson, 2 Bos. & Pull. 238; Schneiders. Nor- 
 ris, 2 Mau. & Selw. 286. 
 
 (I) In Dawson v. Ellis, 1 Jac. & Walk. 624, the Court was of opin- 
 ion, that [{ Jl. contract verbally to sell to B, and afterwards contract by 
 writing to sell to C, and then convey the estate to B., he (jB.) is not 
 liable to perform the contract with C, although he had notice of it be- 
 fore the conveyance. 
 
 (47) See Ballard v. Walker, 3 Johns. Cas. 60. 
 
 (48) An assignment of a lease, by a writing not under seal, is valid. 
 Hotlidnij v. J[Iarshall, 7 Johns. Rep. 211. But a blank assignment of 
 a lease, is inoperative : Thus, if a person write his name and affix his 
 seal on the back of a lease, and at the same time, it is agreed between 
 him and the person to whom the assignment is to be made, that an as- 
 signment shall be written by a third person, over the signature and seal, 
 and this is done, and the deed delivered to the assignee, the assignment 
 
 (MOO)
 
 OF PAROL AGREEMENTS. J J -7 
 
 The signature required by the statute is to have the 
 effect of giving authenticity to the whole instrument ; and 
 where the name is inserted in such a manner as to have 
 that effect, it does not much signify in what part of the 
 instrument it is to be found (6) (49). 
 
 Therefore, the signing the name at the beginning of 
 the agreement will take it out of the statute ; as, if a 
 person write the agreement himself, and begin, "^.jB. 
 agrees to sell, &c." and this is only in analogy to the 
 case of a testator writing his name at the beginning of 
 his will, which is equivalent to his signing it ; and yet 
 the statute expressly requires a signature(c). 
 
 (*)And such a signature will be sufficient, although a 
 place be left for a signature at the bottom of the instru- 
 ment(^)(I) ; and yet, as Lord Eldon has observed, it is im- 
 
 (6) Vide Stokes v. Moore, stated infra ; Allen v. Bennet, 3 Taunt. 
 169. 
 
 (c) Knight V. Crockford, 1 Esp. Ca. 189 ; and see 1 Bro. C. C. 410 ; 
 3 Esp. Ca. 182 ; 9 Ves. jun. 248 ; and Saundeison v. Jackson, 2 Bos. 
 & Pull. 238. See Cooper v. Smith, 15 East, 103 ; Morison v. Tur- 
 nour, 18 Ves. jun. 175 ; Propert v. Parker, 1 Russ. & Ryl. 625. 
 
 (d) Saunderson v. Jackson, ubi supra. 
 
 (I) This question frequently arises upon wills of personalty. Walker 
 V. Walker, decided by the, Court of Delegates, 19th Feb. 1805. Ann 
 Walker made her will, comprising real and personal estate, which she 
 signed and sealed, and then folded up with this indorsement ; " I signed 
 and sealed my will to have it ready to be witnessed the first opportu- 
 nity I could get proper persons for it." The usual attestation clause 
 was added, but not signed by any witness. At her death the instru- 
 ment was found in her drawer in the envelop, and it was determined 
 not to be a good will of the personal property, on the ground, that 
 something appearing by the attestation clause to be intended to be 
 
 is a nullity. Jackson v. Tihis, 2 Johns. Rep. 430. See Ulen v. Kil- 
 tredge, 7 Mass. Rep. 233. Clason v. Bailey, 14 Johns. Rep. 484. 
 JVelson V. Dubois, 13 Johns. Rep. 175. 
 
 (49) SeeArgenbrightv. Campbell, 3 Hen. & Munf. 144, 198. Pen- 
 niman v. Hartshorn, 13 Mass. Rep. 87. 
 
 (*101)
 
 118 
 
 OF PAROL AGREEMENTS. 
 
 possible not to see that the insertion of the name at the 
 beginning was not intended to be a signature, and that the 
 paper was meant to be incomplete till it was further 
 signed. 
 
 And if the party know the contents of the agreement, 
 a subscription, as a witness, is a sufficient signing(e). 
 
 So, where a clerk of an agent duly authorized to treat 
 for a principal, signed an agreement thus, " Witness 
 A. B. for C. D. agent to the seller," it was holden to be 
 out of the statute(/). And it is sufficient, it seems, if 
 the initials of the name are set down(^). 
 
 But a letter without a signature of the name in some 
 way cannot be brought within the statute. Therefore, 
 a letter written by a mother to her son, beginning " My 
 dear Nicholas," and ending " your affectionate mother," 
 (*)with a full direction, containing the son's name and 
 place of residence, is not a good agreement within the 
 statute (/t) (50). 
 
 It seems that the signature of the purchaser by 
 himself or his agent, on the back of the particulars and 
 conditions of sale, with the sum opposite to it, is a suffi- 
 cient compliance with the directions of the act(^). 
 
 And, as we have seen, an agreement not signed, may 
 
 (e) Welford v. Beazely, 3 Atk. 603. See 9 Ves. jun. 251. 
 
 (/) Coles V. Trecothick, 9 Ves. jun. 234 ; 1 Smith's Rep. 233 ; but 
 see Blore v. Sutton, 3 Mer. 237. 
 
 {g) Phillimore v. Barry, 1 Camp. Ca. 513. 
 
 {h) Selby V. Selby, Rolls, 1817, MS. 
 
 (i) Vide supra, and Hodgson v. Le Bret, Camp. N. P. 233 ; Philli- 
 more V. Barry, ib. 513 ; Goom v. Aflalo, 6 Barn. & Cress. 117; S. C. 
 9 Dowl. & R. 148 ; cases on the 17th sect. ; Emmerson v. Heelis, 2 
 Taunt. 38. 
 
 done, the instrument was not complete as the last will of the testatrix. 
 1 Mer. 503. See Beaty v. Beaty, 1 Addams, 154. 
 
 (50) See Wkilioellw. JVyer, 11 Mass. Rep. 6. Bailey v. Ogdens, 3 
 
 Johns. Rep. 399. 
 (*102)
 
 OF PAROL AGREEMENTS. 
 
 119 
 
 be supported by a signature to a writing referring to the 
 agreement. . 
 
 But the mere ahering the draft of the convejance will 
 not take a case out of the statute(A;) ; neither will the 
 writing over of the whole draft by the defendant with his 
 own hand be sufficient, as there must be a signature(/). 
 To this rule we may, perhaps, refer the case of Stokes v. 
 Moore (m) ; where the defendant wrote instructions for 
 a lease to the plaintiff, in these words : viz. " The lease 
 renewed ; Mrs. Stokes to pay the King's tax ; also to pay 
 Moore 24/. a year, half-yearly ; Mrs. Stokes to keep the 
 house in good tenantable repair, fee." Stokes, the lessee, 
 filed a bill for a specific performance, and the Court of 
 Exchequer held it not to be a sufficient signing to take 
 the agreement out of the statute ; although it was not 
 necessary to decide the point(51). 
 
 Lord Eldon is reported to have said, that he had some 
 doubt of the doctrine in this case(n). 
 
 (*)Mr. Baron Eyre appears to have put it on its true 
 grounds. He said, that the signature is to have the effect 
 of giving authenticity to the whole instrument ; and if the 
 name is inserted so as to have that effect, he did not think 
 it signified much in what part of the instrument it was to 
 be found ; it was, perhaps, difficult, except in the case 
 
 (fc) Hawkins v. Holmes, 1 P. Wms. 776, which overruled Lowther 
 V. Carril, 1 Vern. 221. See Shippey v. Derrison, 5 Esp. Ca. 190. 
 
 {I) Ithel V. Potters 1 P. Wms. 771, cited. 
 
 (m) Stokes v. Moore, 1 Cox, 219 ; Cox's n. to 1 P. Wms. 771. 
 See 1 Smith's Rep. 244. 
 
 {n) And see Enimerson r. Heelis, 2 Taunt. 38, and observe how the 
 purchaser's name was signed there. See also Morison v. Tumour, 18 
 Ves. jun. 175 ; Western v. Russel, 3 Yes.& Bea. 187 ; OgiJvie v. Fol- 
 jambe, 3 Mer. 53. 
 
 (51) See Givens v. Calder,2 Des. 171. Sec note to Weightmanv. 
 Caldivell, 4 Wheat. 89. 
 
 (*103)
 
 120 
 
 OF PAROL AGREEMENTS. 
 
 of a letter with a postscript, to find an instance where a 
 name inserted in the middle of a writing can well have 
 that effect ; and then the name being generally found in 
 a particular place, bj the common usage of mankind, it 
 may very probably [qu. properly] have the effect of a 
 legal signature, and extend to the whole ; but he did 
 not understand how a name inserted in the body of an 
 instrument, and applicable to particular purposes, could 
 amount to such an authentication as is required by the 
 statute. 
 
 III. In considering what signature satisfies the requisi- 
 tion of the statute, we have necessarily adverted to signa- 
 tures by agents ; and it will now be proper to consider 
 who will be deemed an agent lawfully authorized within 
 the statute of frauds to sign an agreement for the sale of 
 purchase of an estate(52). 
 
 In the first and third sections of the statute of frauds, 
 which relate to leases, &c. the writing is required to be 
 signed by the parties making it, or their agent authorized 
 by writing. This latter requisite is omitted in the fourth 
 and seventeenth sections of the statute(I). The Legis- 
 lature (*)seems to have taken this distinction, that where 
 an interest is intended to be actually passed, the agent must 
 be authorized by writing ; but that where a mere agree- 
 ment is entered into, the agent need not be constituted 
 by writing ; and therefore an agent may be authorized by 
 parol to treat for, or buy an estate, although the contract 
 
 (I) In a note to Mr. East's 7th vol. p. 665, it is said, that by the 
 fourth section, to affect lands, the note must be signed by an agent 
 thereunto lawfully authorized by ivriting, &c., which words, " by writ- 
 ing," are omitted in the seventeenth section, touching the sale of goods. 
 This mistake must be attributed to the hurry of the press, for the 
 agent is in neither section required to be authorized by writing. 
 
 (52) See Trvin v. Thompson, 4 Bibb, 295. 
 
 (
 
 OF PAROL AGREEMENTS. 
 
 121 
 
 itself must be in writiiig(o)(53). It is, however, in all 
 cases, highly desirable that the agent should have a written 
 authority. Where he has merely a parol authority, it 
 must frequently be difficult to prove the existence and 
 extent of it(;;) ; although it may be observed that his 
 testimony will be received with great caution against his 
 signature as agent. If, however, at the time of signing, 
 he make a declaration that he has no authority, his prin- 
 cipal will not be bound(9). But of course, although he 
 purchase in his own name, yet the fact of the agency so 
 as to charge the principal may be made out by parol 
 evidence(r). 
 
 Although an agent is authorized to sell at a particular 
 price, yet it seems that his clerk cannot contract without 
 a special authority or agreement for that purpose(.s) ; 
 which, however, need not be in writing. 
 
 (*)The principal may revoke the authority of the agent 
 at any time before an agreement is executed according to 
 the statute, although the agent has previously agreed ver- 
 bally to sell the property(i) ; and an intended purchaser 
 
 (o) Waller v. Hendon, 5 Vin. Abr. 524, pi. 45 ; Wedderburne r. 
 Carr, in the Exchequer, T. T. 1775 ; 3 Wooddes. 423, cited ; Rucker 
 t). Cammeyer, 1 Esp. Ca. 175 ; Coles v. Trecolhick, 9 Ves. jun. 234 ; 
 1 Smith's Rep. 233 ; Barry v. Lord Barrymore, 1 Sch. & Lef. Rep. 
 28, cited ; Clinan v. Cooke, ib. 22 ; Emmerson v. Heelis, 2 Taunt. 
 38. 
 
 (p) Mortlock u. Buller, 10 Ves. jun. 292. See Daniel v. Adams, 
 Anibl. 495 ; Charlcwood v. the Duke of Bedford, 1 Atk. 497 ; and 
 see 5 Yin. Abr. 522, pi. 35 ; Wyatt v. Allen, MS. App. No. 9. 
 
 {q) Howard v. Braithwaite, 1 Ves. & Beam. 202. 
 
 ()•) Wilson V. Hart, 1 Moore, 45. 
 
 («) Coles V. Trecothick, 9 Ves. jun. 234. 
 
 {t) See Farmer v. Robinson, 2 Campb. 339, n. 
 
 (63) See FAving v. Tees, 1 Binn. 450. Talbot v. Botoeu, 1 Marsh. 
 Ken. Rep. 436. 
 
 VOL. 1. 16 (*105)
 
 122 
 
 OF PAROL AGREEMENTS. 
 
 may in like manner revoke his authority to his agent to 
 purchase(M). 
 
 The statute requires every agreement as to lands, or 
 some memorandum or note thereof, to be in writing, and 
 signed hy the party to he charged, or some other person 
 thereunto, (that is, to the signing thereof )(a:) by him 
 authorized. And that as to goods, some note or memo- 
 randum in writing of the bargain shall be made and 
 signed by the parties to be charged by such contracts, or 
 their agents, thereunto authorized. And yet it has been 
 decided, that the signature of the party to be charged by 
 himself or agent is sufficient, even in a contract for 
 goods(?/), although the other party has not signed, and 
 consequently is not bound ; so that there appears to be 
 no difference between the two clauses of the statute, in 
 regard to the appointment and power of an agent. 
 
 It has, however, been repeatedly decided, that an auc- 
 tioneer is the agent of both parties upon a sale of goods, 
 so as to be enabled to bind them both under the sta- 
 tute(2)(54) ; whilst, on the contrary, it has been decided, 
 and lately seemed to be the prevailing opinion, that the 
 auctioneer is not the agent of the purchaser upon a sale 
 (*)by auction of estates, so as to be authorized to bind him 
 by setting down in writing the terms of the contract(«) ; 
 
 (m) As to sales by auction, see Blagden v. Bradbear, 12 Ves. jun. 
 467 ; Mason v. Armitage, 13 Ves. jun. 26. 
 
 {x) See 1 Ves. & Beam. 207. 
 
 {y) Allen v. Bennet,3 Taunt. 169. 
 
 [z) Simon V. Motivos, 3 Burr. 1921 ; Bull. Ni. Pri. 280 ; 1 Blackst. 
 599; Rucker r. Cammeyer, 1 Esp. Ca. 105; Hinder. Whitehouse* 
 7 East, 558 ; and see Rondeau v. Wyatt, 2 H. Blackst. 67 ; and 1 Ca. 
 & Opin. 142, 143 ; Phillimore v. Barry, 1 Camp. Ca. 513 ; and see 
 the observations in the 2d edit, of this work, p. 57 — 64. 
 
 (a) Stansfield v. Johnson, 1 Esp. Ca. 101 ; Walker v. Constable, 2 
 
 (54) See Brown v. Gillilund, 3 Des. 540. 
 (*106)
 
 OF PAROL AGREEMENTS. 
 
 123 
 
 but in a late case, upon the sale of an interest within the 
 fourth section, the Court of Common Pleas held, that the 
 auctioneer was an agent for the purchaser, even upon a 
 sale of estates(35). Lord C. J. Mansfield, in delivering 
 judgment, asked, By what authority does he write down 
 the purchaser's name ? By the authority of the purchaser. 
 These persons bid, and announce their biddings loudly, 
 and particularly enough to be heard by the auctioneer. 
 For what purpose do they do this ? That he may write 
 down their names opposite to the lots ; therefore he writes 
 the name by the authority of the purchaser, and he is an 
 agent for the purchaser(6). In a later case(c), the Court 
 of Common Pleas adhered to their former decision, and 
 they considered the signature by the auctioneer of the 
 purchaser's name alone, sufficient, although he was only 
 an agent, to bind the principal ; and the conditions ex- 
 pressly required that the highest bidder should sign a 
 contract for the purchase. The principal, however, was 
 present, and did not object to the signature by the auc- 
 tioneer until after it was made. The action in this case 
 was brought for the auction duty. Upon a bill filed by 
 the seller for a specific performance, the Master of the 
 Rolls decreed it, following the decisions in the Common 
 
 Esp. Ca. 659 ; 1 Bos. & Pull. 306 ; Buckmaster r. Harrop, 7 Ves. jun. 
 341 ; 13 Ves. jun. 456 ; Coles v. Trecothick, 9 Ves. jun. 234 ; 1 
 Smith, 257. See 13 Ves. jun. 473. 
 
 {b) Emmerson r. Heelis, 2 Taunt. 38. See 1 Cas. and Opin. 142, 
 143. 
 
 (c) "White I'. Proctor, 4 Taunt. 209. 
 
 (.55) In the case of J\PComb v. Wright, it was decided, that an auc- 
 tioneer is the agent of the purchaser, either of lands or goods, at auc- 
 tion, to sign a contract for him, as the highest bidder ; and his writing 
 the name of the purchaser, as the highest bidder, on the memorandum 
 of sale, immediately on receiving the bid, and knocking down the ham- 
 mer, is a sufficient signing of the contract within the statute of frauds. 
 4 Johns. Ch. Rep. 659.
 
 124 
 
 OF PAROL AGREEMENTS. 
 
 Pleas, although his own opinion was, that an auctioneer 
 is not the agent of the purchaser(^). The rule, there- 
 fore, (*)may now be laid down generally, that an auction- 
 eer is an agent lawfully authorized by the purchaser(56). 
 It was always clear, that an auctioneer, appointed by a 
 vendor, was a good agent for him within the statute(e). 
 
 And although a purchaser bid by an agent, yet the 
 auctioneer is still duly authorized to sign the agree- 
 mentff). 
 
 The agent must be a third person : neither of the con- 
 tracting parties can be the agent of the other(o) ; and 
 therefore, although a purchaser is bound by the signature 
 of the auctioneer, yet the auctioneer himself cannot main- 
 tain an action upon such a contract, because the agent 
 Avhose signature is to bind the defendant must not be the 
 other contracting party upon the record(A). 
 
 This, however, has since been doubted(/) ; and it has 
 been held that the auctioneer's clerk can bind the purchaser 
 by an entry made in his presence. The Court considered 
 the clerk as agent for both parties. The auctioneer and 
 his clerk may be considered as the constituted agents of 
 the vendor ; he appoints the former to announce the bid- 
 dings, and the latter to take down the names of the pur- 
 chasers, and the prices of the lots. The clerk may be 
 considered not only as the agent of the vendors but also 
 of the purchasers. By their silence, when the hammer 
 
 {d) Kemys v. Proctor, 3 Ves. & Bea. 57 ; 1 Jac. & Walk. 350 ; 
 Kenworthy r. Schofield, 2 Barn. & Cress. 945 ; 4 Dowl. & R. 556. 
 
 (e) Vide Supra. 
 
 (/) Emmerson v. Heelis, 2 Taunt. 38 ; White v. Proctor, 4 Taunt. 
 209. 
 
 (g) See Wright v. Dannah, 2 Camp. 283. 
 
 (/i) Farebrother v. Simmons, 5 Barn. & Aid. 333. 
 
 (i) Bird v. Boulter, 1 Nev. & Mann. 313. 
 
 (66) See Davis v. Robertson, 1 Rep. Con. Ct. 71. M'Comb v. 
 Wright, 4 Johns, Ch. Rep. 659. Cleaves v. Foss, 4 Greenl. 1. 
 (*107)
 
 OF PAROL AGREEMENTS. 
 
 125 
 
 falls, he has their authority to execute the contract on 
 their behalf. It was not necessary to overrule Fare- 
 brother V. Simmons ; but the opinion of the Court was in 
 favor of the auctioneer's power to sign as agent of the 
 contracting party. It is certainly irregular that the con- 
 tracting parties should act as each other's agents, but it 
 (*)is very different where the contract is signed by an 
 individual who is not either of the contractors. Were it 
 to be held otherwise, no broker could maintain an action 
 in his own name for the breach of a contract signed by 
 him ; and at any auction, if the auctioneer or his clerk 
 were not allowed to be the agent of the contracting 
 parties at every bidding, each purchaser would have to 
 come to the table and sign his own name. 
 • Finally, a contract by one as agent for another is valid 
 under the statute, although the alleged agent had no 
 authority at the time, provided that the alleged principal 
 ajterwards ratifies the contract(}'J. 
 
 SECTION III. 
 Of Parol agreements not within the Statute. 
 
 I. We have seen what is considered a sufficient agree- 
 ment to take a case out of the statute ; but there are 
 cases in which the performance of an agreement will be 
 compelled, although the terms of it are not reduced to 
 writing : for though the statute provided that no agree- 
 ment should be good, unless signed by the party to be 
 bound thereby, or some person authorized by him, yet on 
 all the questions upon that statute, the purport of making 
 it has been considered, viz. to prevent frauds and per- 
 
 ( j) Maclean v. Dunn, 4 Bingh. 722 ; 1 Moo. & P. 761. 
 
 (*108)
 
 126 OF PAROL AGREEMENTS. 
 
 juries ; and where there has appeared to be no danger of 
 either, the courts have endeavored to take the case out 
 of the statute(^). 
 
 Upon this ground it was that in the case of Simon v. 
 Motivos, Lord Mansfield and Mr. Justice Wihnot (*)ex- 
 pressed a clear opinion, in which Mr. Justice Yates was 
 inclined to concur, that sales by auction were not within 
 the statute, because the solemnity of that kind of sale 
 precludes all peijury as to the fact itself of sale. The 
 case, however, which arose upon the sale of goods, was 
 determined upon the ground of the constructive agency 
 of the auctioneer(/), who had set down in writing the 
 name of the purchaser, &c.(w). 
 
 Succeeding Judges have entertained a different opinion 
 on the great question, whether sales by auction are within 
 the statute of frauds ; and it has accordingly been since 
 frequently decided, that sales by auction of estates are 
 within the statute(w)(57). And although the point has 
 never been decided, yet, from the present temper of the 
 
 (k) See 1 Ves. 221. 
 
 (/) Vide supra. 
 
 (m) 3 Burr. 1921 ; Bull. Ni. Pri. 286 ; 1 Blackst. 599. 
 
 (n) Stansfield v. Johnson, 1 Esp. Ca. 101 ; Walker v. Constable, 2 
 Esp. Ca. 659 ; 1 Bos. & Pull. 306 ; Buckmaster v. Harrop, 7 Ves. 
 jun. 341, affirmed on appeal, Dec, 1806 ; Blagdenv. Bradbear, 12 Ves. 
 jun. 466 ; and see Coles v. Trecothick*, 9 Ves. jun. 249 ; Hinde v. 
 Whitehouse, 7 East, 658; Mason v. Armitage, 13 Ves. jun. 25; Hig- 
 genson v. Clowes, 15 Ves. jun. 516. The case of Symonds v. Ball, 
 8 Term Rep. 151, turned on the particular provisions of another act of 
 parliament. 
 
 (57) Particulars of sale of lands, advertised to be sold at auction, 
 signed by the vendors, held to be a sufficient memorandum in writing, 
 within the statute. Hobby v. Finch, Kirby, 14. Ellsicorth, J. dissenting. 
 
 In the state of JYeiv-York, it has been decided, that sales of estates, 
 at auction, by the sheriff, are within the statute, and to pass the estate, 
 require a note or memorandum in writing. Jackson v. Catlin, 2 Johns. 
 Rep. 248. S. C. affirmed on error, 8 Johns. Rep. 406. 2d edit. Si- 
 monds v. Catlin, 2 Caiiies' Rep. 61, 64. 
 
 (*109)
 
 OF PAROL AGREEMENTS. 
 
 127 
 
 courts, it seems probable that it will be determined, that 
 sales by auction, even of goods, are within the statute(o). 
 
 But on the ground that there is no danger in such a 
 transaction of either fraud or peijury, a sale before a Mas- 
 ter, under the decree of a court of equity, will be carried 
 into execution, although the purchaser did not subscribe 
 any agreement. The judgment of the Court, in confirm- 
 ing the purchase, takes it out of the statute (p) (58). 
 
 So if, under a reference to a Master, an agreement be 
 made to lay out trust-money in the purchase of particular 
 lands, and the Master make his report accordingly, and 
 (*)the report be confirmed without any opposition by the 
 owner of the estate, the purchase will be carried into a 
 specific execution, although no agreement was signed by 
 the vendor. The sale is a judicial sale, which takes it 
 entirely out of the statute(^)(59). 
 
 II. It has been repeatedly determined in equity(r), 
 that if a bill be brought for the execution of an agree- 
 ment not in writing, nor so stated in the bill, yet if the 
 defendant put in his answer, and confess the agreement, 
 that takes the case entirely out of the mischief intended 
 
 (o) So decided in Kenvvorthy v. Schofield, 2 Barn. & Cress. 945 ; 
 4 Dowl. & R. 656. 
 
 (p) Attorney General r. Day, 1 Yes. 218; and see 12 Ves. jun. 
 472. 
 
 iq) S. C. 
 
 (r) Croyston v. Banes, Prec. Cha. 208 ; and see 1 Ves. 221, 441 ; 
 Ambl. 586 ; Mose. 370 ; and Symondson v. Tweed, Prec. Cha. 437 ; 
 Gilb. Eq. Rep. 35 ; Wanby v. Sawbridge, 1 Bro. C. C. 414, cited. 
 
 (68) In BoyUii's Dev. v. Smith, 3 Munf. 102, it was held, that a 
 release entered by verbal direction, in open Court, was valid, and satis- 
 fied the statute. 
 
 (59) In relation to this subject, see the reasoning of KENT, J. in 
 Simonds v. Catlin, 2 Caines' Rep. 64. 
 
 (*110)
 
 128 
 
 OF PAROL AGREEMENTS. 
 
 to be prevented by the statute(60) ; and there being no 
 danger of peijurj, the Court would decree it ; and if the 
 defendant should die, upon a bill of revivor against his 
 heir, the same decree would be made as if the ancestor 
 were living, the principle going throughout, and equally 
 binding the representatives(5). 
 
 Lord Chancellor Bathurst, however, held that an agree- 
 ment, not in part performed, could not be carried into 
 execution, although confessed by the answer. In Eyre v. 
 Popham(^), addressing himself to Mr. Ambler, he asked 
 if there was any case in which there had been a decree 
 founded upon a confession generally without a part per- 
 formed ? and Mr. Ambler replied, that in some of the 
 cases, the Chancellor had been mentioned to have said it, 
 but he never found a decree. In giving judgment, his 
 Lordship is reported to have said, " This is not an agree- 
 ment in writing, upon the statute of frauds ; but the 
 question is, whether it is an agreement which so appears 
 as that the Court will decree a performance. It has been 
 (*)said, that it is a known rule in this Court, that where 
 an agreement appears confessed, the Court will decree a 
 performance, though no part has been performed : some 
 dictums there have been, but Mr. Ambler confesses that 
 he has found no decree — that where the substance clearly 
 appears, though in parol, without any part performed, the 
 Court will decree an agreement to be executed. I think 
 it cannot be possible ; this Court cannot repeal the statute 
 of frauds, or any statute. The King has no such power, 
 by the constitution, intrusted to him ; and therefore there 
 
 («) Per Lord Hardwicke, see 1 Ves. 221. 
 
 (0 Lofft, 808, 809 ; and see Eyre v. Iveson, 2 Bro. C. C. 563, 
 cited. 
 
 (60) See Smith v. Brailsford, 1 Des. 350. Kerr v. Love, 1 Wash. 
 172. Fowler v. Lewis, 3 Marsh. Ken. Rep. 445. See contra, Thompson 
 V. Tod, 1 Peters' Rep. 388. 
 
 (*111)
 
 OF PAROL AGREEMENTS. 
 
 129 
 
 can be no such power in his delegates. The only case 
 f know that takes a contract out of the statute is of fraud, 
 and the jurisdiction of this Court is principally intended 
 to prevent fraud and deceit. Where a party has given 
 ground to another to think he had a title secured, the 
 Court will secure it to him. The ground, therefore, in 
 making and refusing decrees, has been fraud. It can 
 never be laid down by the Court, that where the sub- 
 stance appears it shall be executed. It would not have 
 been so at common law." 
 
 In the discussion of the foregoing case, neither the bar 
 nor the court appear to have been aware of a case before 
 Lord Chancellor Macclesfield(?f), in which the defendant 
 having pleaded the statute of frauds to a bill seeking 
 a specific performance of a parol agreement, his Lordship 
 said, the plea was proper, but then the defendant ought, 
 by answer, to deny the agreement ; for if he confessed 
 the agreement, the Court would decree a performance, 
 notwithstanding the statute ; for that such confession would 
 not be looked upon as perjury, or intended to be pre- 
 vented by the statute. And he therefore confirmed an 
 order, that the plea should stand for an answer, with 
 (*)liberty for the plaintiff to except thereto, and that the 
 benefit thereofshould.be saved to the defendant until the 
 hearing of a cause. And Lord Hardwicke appears to 
 have entertained the same opinion(a:)(61). 
 
 In Whitchurch v. Bevis(?/), Lord Thurlow at first 
 
 («) Child V. Godolphin, 1 Dick. 39 ; 2 Bro. C. C. 566, cited ; and 
 See Hartley v. Wilkinson, Irish Term Rep. 357. 
 
 (x) See Cottington v. Fletcher, 2 Atk. 155 ; and see 3 Atk. 3 ; but 
 Bee 4 Ves. jun. 24. 
 
 (t/) 2 Bro. C. C. 559 ; 2 Dick. G64. 
 
 (6 1 ) Smith V. Brailsford, 1 Des. 350. In this case the defendant 
 admitted by his answer, that he had taken possession of, and held the 
 land under the agreement. 
 
 VOL. I. 17 (*112)
 
 130 
 
 OF PAROL AGREEMENTS. 
 
 expressed his opinion, that the only effect of the statute 
 was, that an agreement should not be proved aliunde. No 
 evidence that could be given would sustain the suit if the 
 defendant answered and denied the^agreement. In this 
 case the agreement was confessed, but the statute was 
 pleaded, and it was ultimately decided on its own partic- 
 ular circumstances. Lord Thurlow said, he meant to 
 determine upon the ground of this particular case ; be- 
 cause it might become to be more seriously considered 
 what sort of a verbal agreement, notwithstanding the plea 
 of the statute of frauds, might be sustained, as being 
 confessed by the answer, so as the Court would carry it 
 into execution. His Lordship added, that he was pre- 
 pared to say, if there were general instructions for an 
 agreement, consisting of material circumstances to be 
 hereafter extended more at large, and to be put into the 
 form of an instrument, with a view to be signed by the 
 parties, and no fraud, but the party takes advantage of 
 the locus poenitentice, he should not be compelled to per- 
 form such an agreement as that, ivhen he insists upon the 
 statute of frauds. 
 
 It is curious to observe the different opinions which 
 have prevailed on this point. Lord Macclesfield held, 
 that if the agreement was confessed, even a plea of the 
 statute would not protect the defendant ; in which opinion 
 he seems to have been followed by Lord Hardwicke. On 
 the other hand. Lord Bathurst thought that, unless there 
 (*)were fraud, an admission of the agreement by the defen- 
 dant would not enable the Court to decree it, although the 
 defendant did not insist on the statute. Lord Thurlow 
 appears to have been of opinion, that if the agreement 
 was admitted, the statute could only be used as a defence 
 where there was a clear locus poenitentice, but that evidence 
 could not be admitted to falsify the defendant's answer. 
 
 None of the foregoing opinions has, however, been 
 attended to. Mr. Baron Eyre seems to have led the way 
 
 (*113)
 
 OF PAROL AGREEMENTS. |Q| 
 
 ill holding, that if the defendant, by his answer, insisted 
 upon the statute of frauds, a specific performance could 
 not be decreed, although he confessed the agreement (2:). 
 And Lord Thurlow, notwithstanding his opinion in Whit- 
 church V. Be vis, said, in the prior case of Whitbread v. 
 Brockhurst, that it- should rather seem that if the defen- 
 dant confesses the agreement in his answer, but insists 
 upon the statute, it would be more simple and conform- 
 able to reason to say, that the statute should be a bar to 
 the plaintiff's claini(«) ; and these opinions have been 
 adopted by Lord Rosslyn and Lord Eldon(6) ; and Sir 
 William Grant actually decided, that the statute may be 
 used as a bar to the relief, although the agreement be 
 admitted(c). It is immaterial, he said, what admissions 
 are made by a defendant insisting upon the benefit of the 
 statute, for he throws it upon the plaintiff' to show a com- 
 plete written agreement ; and it can no more be thrown 
 upon the defendant to supply defects in the agreement, 
 than to supply the want of an agreement(62). 
 
 (2) Stewart v. Careless, 2 Bro. C. €. 564, 565, cited ; Walters v. 
 Morgan, 2 Cox, 369. 
 
 (a) See 1 Bro. C. C. 416. 
 
 {b) Moore v. Edwards, 4 Yes. jun. 23 ; Cooth v. Jackson, 6 Ves. 
 jun. 12 ; Row v. Teed, 15 Ves. jun. 375 ; see Rondeau v. Wyatt, 2 II. 
 Blackst. 63 ; and 1 Rose, 300. 
 
 (c) Blagden v. Bradbear, 12 Yes. jun. 464 ; see also 2 Ball & Beat. 
 349. 
 
 (62) Judicial opinions, as to the effect or necessity of an answer, on 
 a bill for the specific performance of a parol agreement for the sale of 
 lands, admitting or denying the agreement, have been almost as diversi- 
 fied in the United States, as in England. In Virginia, it has been de- 
 termined, that if the defendant by his answer admit, that certain goods 
 were to be charged to him, upon certain conditions, there being no other 
 evidence in the case, such admission ought to be the rule by which the 
 charge should be regulated. Kerr v. Love, 1 Wash. 172. In Pennsijl- 
 vania, it seems to be the settled rule, that although the defendant an- 
 swer, and admit the agreement as stated in the bill, he may, neverthe-
 
 lOQ ^^ PAROL AGUEE.MENTS. 
 
 Where, however, a defendant has, by answer, admitted 
 (*)the agreement, and submitted to perform it, he cannot, 
 by an answer to an amended bill, plead the statute of 
 fraud s(</). 
 
 If the defendant deny the agreement, he may be tried 
 for peijury ; but a conviction will not enable equity to 
 decree a performance of the agreement(e)(I) ; and there- 
 fore, as the plaintiff cannot avail himself in any civil 
 proceedings of the conviction of the defendant, he is a 
 competent witness to prove the perjury(/^. 
 
 III. There are other cases taken out of the statute, not 
 so much on the principle of no danger of peijury, as that 
 the statute was not intended to create or protect fraud. 
 Lord Keeper North appears to have entertained a floating 
 
 (c/) Spurrier v. Fitzgerald, 6 Ves. jun. 648. 
 
 (e) Barllelt r. PickersgiU, 4 Burr, 2265 ; 4 East, 677, n. (6) ; 1 
 Cox, 16. See Rastel v. Hutchinson, 1 Dick. 44, and Fell v. Cham- 
 berlain, 2 Dick. 484 ; Burdon i". Browning, 2 Taunt. 620. 
 
 (/) The King v. Boston, 4 East, 572. 
 
 (I) It appears that the plaintiff in Fell v. Chamberlain did prefer a bill 
 of indictment for perjury against the defendant ; and the Master of the 
 Rolls granted an order to the six clerks to deliver the bill and answer, 
 interrogatories, and depositions of witnesses to a solicitor, in order to 
 be produced at the trial. Reg. Lib. A. 1772, fo. 496. 
 
 less, protect himself against the performance of it, by pleading the stat- 
 ute. Thompson v. Tod, 1 Peters' Rep. 388. In South Carolina, the 
 contrary rule has been adopted. Smith v. Brailsford, 1 Des. 350. On 
 a bill for a specific performance of a parol agreement for the sale of 
 lands, in a case not tinctured with fraud, if the defendant chooses to 
 avail himself of the statute, he need not, by his answer, admit or deny 
 the agreement, the law having declared it void. Givens v. Calder, 2 
 Des. 171, 190. See Argenbrightv. Campbell, 3 Hen. & Munf. 144, 
 153, 160, 161. Grant v. Craigmiles, 1 Bibb, 203. And in Kemtuchy, 
 it has been held, that although the defendant omit to plead the statute of 
 frauds, a specific peformance will not be decreed, unless he confess the 
 agreement, Foivler v. Lticis, 3 Marsh. Ken. Rep. 445. 
 (,*114;
 
 OF PAROL AGREEMENTS. 
 
 133 
 
 opinion, although he never actually decided the point, 
 that if the plaintiff laid in his bill that it was part of the 
 agreement that the agreement should be put into writing, 
 it would take the case out of the statute(^). In a case 
 before Lord Thurlow(A), this doctrine was stated at the 
 bar ; and in answer to it, his Lordship said, he took that 
 to be a single case, and to have been overruled. If you 
 inte?pose the medium of fraud, by ichich the agreement is 
 prevented from being put into writing I agree to it, other- 
 wise (*)I take Lord North's doctrine, ' that if it had been 
 laid in the bill, that it was a part of the agreement that 
 it should be put into writing, it would have done,' to be 
 a single decision, and contradicted, though not expressly, 
 yet by the current of opinions. "(63) 
 
 So where agreements have been carried partly into 
 execution, the Court will decree the performance of them, 
 in order that one side may not take advantage of the 
 statute, to be guilty of fraud(2)(I)(64). 
 
 {g) Hollis V. Whiting, or Edwards, 1 Vein. 151, 159 ; Leake v. 
 Morrice, 2 Cha. Ca. 135. 
 
 (/i) Whitchurch v. Bevis, 2 Bro. C. C. 665. 
 
 (t) See 1 Yes. 221 ; Taylor v. Beech, 1 Yes. 297. 
 
 (I) The ground of relief in these cases is fraud, and that species of 
 fraud which is conusable in equity only ; although it seems that the 
 Court of King's Bench once held, that where an agreement was partly 
 executed, it was totally out of the statute. See 1 Bro. C. C. 417. 
 
 (63) See Dandridge v. Harris, 1 Wash. 326. 
 
 (64) See JViven v, Belknap, 2 Johns. Rep. 573, 587. Smith v. Pal- 
 tori's Les. 1 Serg. & Rawie, SO. Wclmorc v. While, 2 Caines' Cas. 
 in Error, 87. Billinglon \: Welsh, 5 B'lnn. 129, 131. The contract, 
 as laid in the bill, must be made out by clear and satisfactory proof; 
 and the act of part perfortpance must refer to the identical contract set 
 up ; it must be unequivocal ; a reference to some agreement is not suf- 
 ficient. Phillips V. Thompson, 1 Johns. Ch. Rep. 131. Parkhurst v. 
 Van Corllandt, 1 Johns. Ch. Rep. 273. In certain cases, where, by 
 the rules of law, a court of equity is not warranted in decreeing the ex- 
 
 (*il5)
 
 134 
 
 OF PAROL AGREEMENTS. 
 
 An agreement will not be considered as partly ex- 
 ecuted, unless the acts done are such as could be done 
 with no other view or design than to perform the agree- 
 ment ; or perhaps, to speak more correctly, with the view 
 of the agreement being performed ; and if it do not ap- 
 pear but the acts done might have been done with other 
 views, the agreement will not be taken out of the 
 statute(A:). 
 
 Neither will acts merely introductory, or ancillary to 
 
 (k) Gunter v. Halsey, Ambl. 686 ; Lacon v. Mertins, 3 Atk. 1 ; 
 and see 19 Ves. jun. 479. 
 
 edition, of a contract in specie, a compensation will be awarded to the 
 party injured by the non-performance of the agreement. As where, by 
 mistake, the defendant was unable to perform his contract, which was 
 for the sale of land. JWFermn v. Taylor, 3 Cranch, 270, 281. See 
 Hepburn v. Auld, 5 Cranch, 262. Pratt v. Laio, 9 Cranch, 456. So 
 also, where a party has sustained an injury by the non-performance of 
 a contract within the statute of frauds, for which he ought to be com- 
 pensated, and for which he has no remedy, or, at best, a doubtful and 
 inadequate one, at law, an issue of quantum damnificatus will be award- 
 ed. Phillips V. Thompson, 1 Johns. Ch. Rep. 131. So, a reasonable 
 compensation will be afforded to a party, who has entered into posses- 
 sion of lands, and made beneficial and lasting improvements, under an 
 imperfect agreement, either to purchase, or take a lease of them. Park- 
 hurst V. Van Corllandt, 1 Johns. Ch. Rep. 273. But see S. C. on ap- 
 peal, 14 Johns. Rep. 15. contra; the Court of Errors decreed a speci- 
 fic performance of the agreement. See Sherburn v. Fuller, 5 Mass. 
 Rep. 133, 138. as to the recovery of money when the contract is re- 
 scinded. Under the act of Pennsylvania, " for the prevention of frauds 
 and perjuries," a parol agreement for the sale of lands, is not void ; but 
 the act restricts the operation of the agreement, so far, that no title can 
 be derived by virtue of it ; yet an action will lie to[recover damages for 
 the non-performance of such an agreement : Bell v. Jindreios, 4 Dall. 
 152. See Ewing v. Tees, 1 Binn. 450. 
 
 Where a contract relating to an interest ia lands, has been executed 
 by one party, it may be proved by parol evidence ; and a court of equity 
 will either decree a specific performance, or a return of the money ex- 
 pended, as the equity of the case may require. Cady v. CadivcU, 5 
 Day, 16. 
 
 (*116)
 
 OF PAROL AGREEMENTS. 
 
 135 
 
 an agreement, be considered as a part-performance, al- 
 though attended with expense. Therefore, delivering an 
 abstract, giving directions for conveyances, going to view 
 the estate, fixing upon an appraiser to value stock, mak- 
 ing valuations, &c.(/), will not take a parol agreement 
 out of the statute(65). 
 
 (*)But if possession be delivered by the purchaser, the 
 agreement will be considered as in part executed(w) (66) ; 
 
 (/) Clerk V. Wright, 1 Atk. 12 ; Whitbread v. Brockhurst, 1 Bro. C. 
 C. 412 ; Cole v. White, 1 Bro. C. C. 409, cited ; Whitchurch v. Be- 
 vis, 2 Bro. C. C. 659 ; Whaley r. Bagenal, 6 Bro. P. C. 645 ; Cooke 
 V. Tombs, 2 Anst. 420 ; and see Cooth v. Jackson, 6 Ves. jun. 12 ; 
 and Redding v. Wilkes, 3 Bro. C. C. 400. 
 
 (m) Butcher i'. Stapely, 1 Vern. 363 ; Pyke v. WilHams, 2 Vern. 
 465; Lockey v. Lockey, Prec. Cha. 518; Earl of Aylesford's case, 
 2 Stra. 783 ; Binstead r. Coleman, Bunb. 65 ; S. C. MS. in tol ver- 
 bis ; Barrett v. Gomesena, Bunb. 94 ; Lacon v. Mertins, 3 Atk. 1 ; 
 Wills I'. Stradling, 3 Ves. jun. 378 ; Bowers v. Cator, 4 Ves. jun. 91 ; 
 Denton v. Stewart, 4th July 1786, cited in Mr. Fonbl. note to 1 Trea. 
 Eq. 175 (I) ; Gregory v. Mighell, 18 Ves. jun. 328 ; Kine v. Balfe, 2 
 Ball & Beat. 343 ; Morphett v. Jones, Rolls, Feb. 1818, MS. ; 1 
 Swanst. 172. 
 
 (I) In this case the plaintiff not only purchased the house, but also 
 the furniture, for which she had actually paid ; and it appears by the 
 decree, that there was a receipt given by the defendant, the contents of 
 which, however, are not stated in the Registrar's book. The defendant 
 positively denied the agreement, and insisted that the plaintiff was only 
 tenant at will. Reg. Lib. A. 1785, fo. 552, by the name of Denton v. 
 Seward ; ibid. 717, by the name of Denton v. Stewart. 
 
 (65) See Jonca v. Peterman, 3 Serg. & Rawle, 546. JYiven v. Bel- 
 knap, ut supra. Davenport v. JSlason, 15 Mass. Rep. 85. Bassler v. 
 JViesly, 2 Serg. & Rawle, 355. Phillips v. Thompson, 1 Johns. Ch. 
 Rep. 131. Parkhurst v. Corllandl, 1 Johns. Ch. Rep. 273. Givens 
 V. Calder, 2 Des. 171. 
 
 (66) See Wctmore v. White, 2 Caines' Cas. in Error, 87. [Contra, 
 at law, per KENT, Ch. J. Jackson v. Pierce, 2 Johns. Rep. 221. 
 See Davenport v. JMason, 15 Mass. Rep. 92.] Syler^s Les. v. Eckhart, 
 1 Binn. 378. Billinglon's Les. v. fVelsh, 5 Binn. 129, 131. Smith v. 
 Patlon^s Les. 1 Serg. & Rawle, 80. Bassler v. JYiesly, 2 Serg. & Rawle, 
 
 (*116)
 
 136 
 
 OF PAROL AGREEMENTS. 
 
 especially if he expend money in building or improving 
 according to the agreement(n)(67), for the statute should 
 never be so turned, construed, or used, as to protect or be 
 a mean of fraud (o). 
 
 Possession, however, must be delivered in part-perform- 
 ance ; for if the purchaser obtain it wrongfully, it will 
 not avail him(p)(6S). And a possession which can be 
 referred to a title distinct from the agreement will not 
 take a case out of the statute. Therefore, possession by 
 a tenant cannot be deemed a part-performance. The 
 delivery of possession, by a person having possession, to 
 the person claiming under the agreement, is a strong 
 and marked circumstance ; but a tenant of course con- 
 tinues in possession, unless he has notice to quit ; and 
 (*)the mere fact of his continuance in possession (which 
 is all that can be admitted, for quo animo he continued in 
 possession, is not a subject of admission) cannot weigh 
 with the Court(9)(69). 
 
 (n) Foxcraft v. Lister, 2 Vern. 456 ; Gilb. Eq. Rep. 4, cited ; Col- 
 les P. C. 108, reported; Floyd v. Buckland, 2 Freem. 268; Mortimer 
 V. Orchard, 2 Ves. jun. 243; Toole v. Medlicott, 1 Ball & Beatty» 393. 
 See Wheeler v. D'Esterre, 2 Dow, 359 ; and see 19 Yes. jun. 479. 
 
 (o) See 3 Burr. 1919. 
 
 (p) Cole V. White, 1 Bro. C. C. 409, cited. 
 
 {q) Wills V. Stradling, 3 Ves. jun. 378 ; Smith v. Turner, Free. Cha. 
 561. cited ; Savage v. Carrol, 1 Ball & Beatty, 265. 
 
 365. Jones v. Peterman, 3 Serg. & Rawle, 546. Fox v. Longlijy 1 
 Marsh. Ken. Rep. 388. Downey v. Hotclikiss, 2 Day, 225. Ehert 
 V. Wood, 1 Binn. 216. Smith v. Brails ford, 1- Des, 350. Kiven v. 
 Belknap, 2 Johns. Rep. 573. 587. Parkkurst v. Van Cortlandt, 1 
 Johns. Ch. Rep. 273. S. C. on appeal, 14 Johns. Rep. 15. 
 
 (67) See the following cases, inserted in the preceding note. 
 Welmore v. White ; Syler^s Les. v. Eckhart ; Smith v. Paiton's Les. ; 
 Jones V. Petennan ; Doivney v. Hotchkiss ; Fox v. Longly ; JViven v. 
 Belknap ; Parhhursl v. Van Cortlandt. 
 
 (68) See Givens v. Calder,2 Des. 171. 
 
 (69) See Parkhurst v. Van Cortlandt, 14 Johns. Rep. 15. on appeal. 
 (*117)
 
 OF PAROL AGREEMENTS. j^'^ 
 
 But if he pay an additional rent, although that is per se 
 an equivocal circumstance (for it may be that he shall 
 hold only from year to year, the lease being expired), yet 
 there may be other inducements. If, therefore, it be 
 averred that the landlord accepted the additional rent 
 upon the foot of the agreement, the acceptance upon the 
 ground of the agreement will not be equivocal at all. 
 The landlord, in such a case, must answer whether it was 
 accepted upon a holding from year to year, or any other 
 ground (r). 
 
 If it be part of such a contract with a tenant in posses^ 
 sion, that money shall be laid out, and it is one of the 
 considerations for granting the lease (the laying out which 
 must be then with the privity of the landlord), it is very 
 strong to take it out of the statute(5). But it is necessary 
 that the act should unequivocally refer to and result from 
 thte agreement, and such that the party would suffer an 
 injury amounting to fraud, by the refusal to execute that 
 agreement. Therefore, where upon the faith of a promise 
 of a renewal, a tenant rebuilt a party-wall, the agreement 
 was held to be within the statute. The act done was 
 equivocal : for it would have taken place equally if there 
 had been no agreement : it was such also as easily 
 admitted of compensation, without executing the agree- 
 ment. The money expended might be recovered from 
 the landlord, if it was by the landlord that the expense 
 was to be born e(/) (70). 
 
 (*)In a late case, Lord Redesdale thought that it was 
 absolutely necessary for courts of equity in these cases, to 
 
 (r) Wills I'. Stradling, ubi sup. 
 (s) S. C. 
 
 (/) Frame v. Dawson, 14 Vcs. jun. 386. Sec Lindsay v. Lynch, 
 2 Scho. & Lef. 1 ; O'Reilly v. Thompson, 2 Cox, 271. 
 
 (70) See Philips v. Thompson, 1 Johns. Ch. Rep. 149, 150. 
 VOL. I. 18 (*11S)
 
 1 og OF PAROL AGREEMENTS. 
 
 make a stand, and not carry the decisions farther(w)(71). 
 
 It is generally understood, that payment of a substantial 
 part of the purchase-money will take a parol agreement 
 out of the statute. How far this opinion is well founded ^ 
 appears to be deserving of particular consideration(72). 
 
 There are four cases in Tothill, which arose previously 
 
 (u) See 2 Scho. & Lef. 6, 
 
 (71) Accordant, Philips v. Thompson, ut supra, per KENT. Grant 
 y. JVay/or, 4 C ranch, 234. King \. Riddle, 7 Cranch, 171. and C/e- 
 mentson v. Williams, 8 Cranch, 74. per MARSHALL, Ch. J. 
 
 In the later case of Kidder v. Hunt, 1 Pick. 328, which was assump- 
 sit on the contract itself, setting forth the verbal agreement, which was 
 for the lease of certain premises for five years, yielding and paying 
 rent therefor, making repairs, &c, ; whereupon the plaintiiT entered into 
 possession and expended money. Upon demurrer to the plea of the 
 statute of frauds pleaded by the defendant, the court held the plea good. 
 The ground of this decision was, that the contract related to an interest 
 in land and not being in writing, no action according to the statute 
 could be maintained on such a contract. But " certainly so much as 
 has been expended by the plaintiff in money, or labor, may be recov- 
 ered in an action for money paid, or for work done for the defendant. 
 There are no doubt, cases proper for a court of chancery, such as those 
 which relate to the execution of trusts, where the common law will give 
 a remedy by an action of damages ; and perhaps in a parol contract 
 respecting land ; where the party has been put to expense, as to his 
 part of the contract, under circumstances which would amount to fraud 
 by the other party, case might lie for damages for the fraud as was inti- 
 mated in Boyd v. Stone, 11 Mass. 342 ; but this action is brought upon 
 the contract itself, and to sustain it would be indirectly to give efficacy 
 to a contract which the legislature says shall have none. It is on the 
 ground of fraud only that the court of chancery undertakes to decree 
 performance of such a contract." Vide Crocker v. Higgins, 7 Conn. 
 342 ; Jones v. Peterman, 3 S. & R. 645 ; Harris v. Knickerbacker, 
 6 Wend. 636. 
 
 (72) See Wetmore v. White, 2 Caines' Cas. in Error, 87. Billing- 
 ton v. Welsh, 6 Binn. 131. Smith v. Palton's Les. 1 Serg. & Rawle, 
 80. Bassler v. JViesly, 2 Serg. & Rawle, 356. Thompson v. Tod, 1 
 Peters' Rep. 388. Jackson v. Cutrighf, 6 Munf. 308. 
 
 i
 
 OF PAROL AGREEMENTS. 
 
 139 
 
 to the statute of frauds, and appear to be applicable to 
 the point under consideration; for equity, even before 
 the statute of frauds, would not execute a mere parol 
 agreement not in part performed. In the first case (x), 
 which was heard in the 38th of Eliz. relief was denied, 
 ^' because it was but a preparation for an action upon the 
 ^' case." In the two next cases(7/), which came on in the 
 9th of Jac. I., parol agreements were enforced, apparently 
 on account of the payment of very trifling parts of the 
 purchase-money, but the particular circumstances of these 
 cases do not appear. The last case reported in Tothill(2), 
 was decided in the 30th of Jac. I., and the facts are dis- 
 tinctly stated. The bill was to be relieved concerning 
 a promise to assure land of inheritance, of which there 
 had not been any execution, but only 55s. paid in hand, 
 and the bill was dismissed. This point received a similar 
 determination, in the next case on the subject before the 
 statute, which is reported in Cha. Rep. (a), and was de- 
 termined in the 15th Cha. II. So the same doctrine was 
 adhered to in a case which occurred three years after- 
 wards, (*) and is reported in Freeman(^) ; for although 
 a parol agreement for a house, with 20s. paid, was de- 
 creed without further execution proved, yet it appears by 
 the judgment, that the relief would not have been granted 
 if the defendant, the vendor, had demurred to the bill, 
 which he had neglected to do, but had proceeded to proof. 
 The last case I have met with previously to the statute, 
 was decided in the 21st Car. II. (c), and there a parol 
 agreement, upon which only 205. were paid, was carried 
 into a specific execution. This case probably turned, like 
 
 (j?) William v. Nevil, Toth. 135. 
 
 (y) Feme v. Bullock, Tolh. 206 ; Clark v. TIackwell, ibid. 228. 
 
 (z) Miller v. Blanciist, Toth. 85. 
 
 («) Simmons v. Cornelius, 1 Cha. Rep. 128. 
 
 (h) Anon. 2 Frecm. 128. 
 
 {£) VoH v. Smith, 3 Cha. Rep. 10. 
 
 (*n9)
 
 I 
 I4Q OF PAROL AGREEMENTS. 
 
 the one immediately preceding it, on the neglect of the 
 defendants to demur to the bill. It must be admitted, 
 that the foregoing decisions are not easily reconcileable, 
 yet the result of them clearly is, that payment of a trifling 
 part of the purchase-money was not a part-performance 
 of a parol agreement. Whether payment of a consider- 
 able sum would have availed a purchaser, does not appear. 
 In Toth. 67, a case is thus stated : " Moyl v. Home, by 
 reason 200/. was deposited towards payment, decreed." 
 This case may, perhaps, be deemed an authority that, 
 prior to the statute, the payment of a substantial part of 
 the purchase- money would have enabled equity to speci- 
 fically perform a parol agreement ; but it certainly is too 
 vague to be relied on. 
 
 Our attention is now called to the statute itself. The 
 clause relating to lands declares generally, that no con- 
 tract, not in writing, shall be binding ; there is also a 
 clause in the act, which relates to sales of goods, which 
 are declared to be binding if something is given in 
 earnest to bind the bargain. 
 
 The first case in the books, subsequently to the statute, 
 is in Freem.(f/), where it is stated, that a contract for land, 
 (*)and a great part of the money paid, is void since the 
 statute of frauds and perjuries; but the party that paid 
 the money may, in equity(I), recover back the money (7 3). 
 
 (d) 1 Freem. 486. ca. 664. b. 
 
 (1) At this day it may be recovered at law. 
 
 (73) At this day it may be recovered at law. [See GiKet v. J]Iaijnard, 
 6 Johns. Rep. 85; Sherburne v. Fuller, 5 Mass. Rep. 133. In Penn- 
 sylvania, it has been decided, that an action at law, would lie to re- 
 cover damages accruing from the non-performance of a contract for 
 the sale of lands, which, being within the statute of frauds, could not 
 be decreed in specie. Bell v. Jlndrews, 4 Dall. 152. See also, 
 Phillips V. Thompson, 1 Johns. Ch. Rep. 131.] 
 
 In Sherburne v. Fuller, which was an action upon a contract touch- 
 
 (*120)
 
 OF PAROL AGREEMENTS. 
 
 141 
 
 And for this Freeman states he saw Sir William Jones' 
 opinion under his hand. This was about four years after 
 the act. The next case is Leak v. Morrice(e), which oc- 
 curred in the same year ; the bill was to have an agreement 
 performed by the defendant ; which was, in effect, that 
 the defendant should assign a term of years in his house 
 and certain goods, for two hundred guineas, whereof he 
 paid one in hand as earnest of the bargain, and three days 
 after nineteen guineas more ; and part of the bargain was, 
 that it should be executed by writings, by a certani time. 
 The defendant pleaded the statute of frauds, and alleged 
 the money was only paid for the lease, but confessed the 
 receipt of the twenty guineas, and offered to repay them. 
 Lord Keeper North said, it was clear that the defendant 
 
 (e) 2 Ch. Ca. 135 ; 1 Dick. 14. 
 
 ing the sale of lands ; and it being objected that it was within the stat- 
 ute, and that the contract was proved only by parol evidence. It was 
 answered, that when a contract within the statute is rescinded, either 
 party may demand of the other the repayment of the money advanced, 
 or the return of the thing delivered under the contract, and may support 
 such demand by parol evidence. Parsons, C. J. said, " This posi- 
 tion is generally true ; and in this case, had the plaintiff' advanced mon- 
 ey to the defendant, or delivered him as bailiff' a deed for safe custody, 
 an action would have lain for the money or deed, or even trover for the 
 deed, and parol evidence would support such action. But here the 
 land was conveyed to Fuller by M., and the deed delivered to the for- 
 mer as evidence of his title : although he promised by parol that he 
 would return it unrecorded, if the contract was rescinded ; and on the 
 return and cancelling of the deed, it was understood that he would bq 
 divested of the land. A promise to return a deed under such circum- 
 stances is in our opinion a promise concerning the sale of lands, as the 
 title to the land was intended to be changed by the performance of the 
 promise. This defect of written evidence cannot be aided by the re- 
 ceipt in writing : for that instrument proves a contract to account for 
 money, and the parol evidence, given to explain it, either contradicts 
 the contract declared on, or materially varies it. As the Justice of the 
 case is with the plaintiff', we see no reason why he may not declare on 
 the receipt, as on a promise to pay moneys
 
 142 
 
 OF PAROL AGREEMENTS. 
 
 ought to repay the money, but overruled the plea on 
 another ground. In this case it does not appear to have 
 occurred to either the bar or the court, that payment of 
 money would take a parol contract for lands out of the 
 statute. The case of Alsop v. Pattenf/J, arose about 
 fifteen years afterwards. There a joint lessee of a build- 
 ing lease agreed to sell his moiety to the other lessee 
 for four guineas, and accepted a" pair of compasses in 
 hand to bind the bargain. The vendor pleaded the sta- 
 tute to a bill filed by the purchaser for a performance in 
 specie. Lord Chancellor Jefferies ordered him to answer, 
 and saved the benefit of the plea to the hearing, as the 
 agreement was, in some part, executed. In this case, 
 unless there w^as a part-performance of the agreement, in- 
 dependently of the mere delivery of the compasses, it is 
 (*)clear that the Court confounded the section of the statute 
 by which personal contracts are binding, if earnest is 
 paid, with the clause relating to land. The next case is 
 Seagood v. Meale(^), which arose thirty-four years after 
 the case of Alsop v. Patten. The case was, that upon a 
 parol agreement for sale of an estate for 150/., a guinea 
 was paid, and the payment of the guinea was agreed to 
 be clearly of no consequence in case of an agreement 
 touching lands or houses, the payment of money being 
 only binding in cases of contracts for goods. In this case 
 we find the doctrine laid down generally, that the pay- 
 ment of money is not a part-performance of a parol agree- 
 ment for lands, and no distinction was taken, as seems 
 sometimes to have been thought, between the payment 
 of a substantial part of the purchase-money, and of a 
 trifling portion. Then comes the case of Lord Fingal, or 
 Lord Pengal v. Ross, which was decided by Lord Cowper, 
 
 (/) 1 Yein. 472. 
 {g) Prec. Cha. 560. 
 (*121)
 
 OF PAROL AGREEMENTS. 
 
 143 
 
 in the 8th of Anne(/t)(I). A. agreed with B. to make 
 him a lease for twentj-one jears of lands rendering rent, 
 B. paying A. 150/. fine. B. paid 100/. in part, then 
 A. refused to execute the agreement ; and upon a bill 
 filed for a specific performance, the agreement was held 
 to be within the statute ; but the 100/. was decreed to be 
 refunded. The Lord Chancellor said, the payment of 
 this 100/. was not such a performance of the agreement 
 on one part, as to decree an execution on the other ; for 
 the statute of frauds makes one sort of. contracts, viz. 
 personal contracts, good, if any money is paid in earnest. 
 Now that statute says, that no agreement concerning 
 (*)lands shall be good, except it is reduced into writing ; 
 and therefore^^a parol agreement, as it was in that case, 
 would not be good by giving money by way of earnest. 
 Thus far no room is left for doubt ; but in Lacon v. 
 Mertins(i), Lord Hardwicke laid it dow^n, that paying 
 money had always been considered as a part-performance. 
 This, however, was a mere dictum ; it was not necessary 
 to decide the question ; the cases on the subject were 
 not cited ; and another rule is laid down too generally in 
 the same report. A case, indeed, is said to have been 
 decided in 1750(/c), at which time Lord Hardwicke was 
 Chancellor, where the bill was to compel the acceptance 
 of a lease under a parol agreement upon a fine of 150/. 
 and 16/. paid in part of the same ; and the plea was 
 overruled, without hearing the counsel for the plaintiff, 
 and the decision, it is said, appears by the Registrar's 
 
 (h) 2 Eq. Ca. Abr. 46. pi. 12. 
 
 (t) 3 Alk. 1 . 
 
 {k) Dickinson r. Adams, 4 Ves. jun. 722, cited. 
 
 (I) It has been said, that this case is not to be found in the Registrar's 
 book. See 4 Ves. jun. 721. The author himself has searched the Re- 
 gistrar's calendars for 1709 and 1710 without success. The search was 
 made under the letters L, (the plaintiff being a lord) P. and F. 
 
 (*122)
 
 144 
 
 OF PAROL AGREEMENTS, 
 
 book(I). But it does not appear from this statement, 
 whether there was or was not any other act of part-per- 
 formance ; and it is a sufficient objection to this decision, 
 that the plaintiff's counsel were not heard, as no one can 
 deny that the point was open to argument. The next 
 case is a recent one(/), in which Lord Rosslyn held that 
 the payment of a small sum, as five guineas, where the 
 purchase-money is 100/., would not take the case out of 
 the statute ; but he seemed clearly of opinion, that pay- 
 ment (*)of a considerable part of the purchase-money 
 would be sufficient : and he treated the case of Lord 
 Fingal v. Ross as ill determined. However, it was not 
 necessary to decide the question. The opinion was clear- 
 ly extra judicial. In the late cas3 of Coles v. Treco- 
 thick(m), where the purchase-money was 20,000/. and 
 2,000/. were paid in part, the point was treated at the 
 bar as doubtful, and the Court evidently declined giving 
 an opinion on the subject. 
 
 Upon the whole, it appears clearly, that since the stat- 
 ute of frauds, the payment of a small sum cannot be 
 deemed a part-performance (74). The dicta are in favor 
 
 (l) Main V. Melbourn, 4 Ves. jun. 720. 
 
 (m) 8 Ves. jun. 234 ; Ex parte Hooper, 1 Mer. 7. 
 
 (I) The author has searched (he Registrar's calendars for 1760, with 
 great attention, but without success. He met with only one case 
 where the plaintiff's name was Dickinson, and there the defendant's 
 name was Baskerville ; and the case is on a different point. Reg. Lib. 
 ^. 1760, fol. 645. Neither does a case in the same book, fol. 614, by 
 the name of Davids v. Adams, embrace the point in question. The 
 search was made under the letter A. as well as the letter D. — Note, 
 the case perhaps turned on the principle stated in page 126, infra. 
 
 (74) If the agreement be executed, or even partly executed, the 
 parties are not permitted to treat it as a nullity. The statute does not 
 wholly vacate the contract, but only inhibits all actions brought to en- 
 force it. Its operation is limited by construction to such executory 
 contracts as have been in no substantial part executed. Davenport v. 
 
 (*123)
 
 OF PAROL AGREEMENTS. i A5 
 
 of a considerable sum being a part-performance, but this 
 construction is not authorised by the statute, and it is op- 
 Mason, 15 Mass. 82. But it is not every part performance that will be 
 stifTicient. " I will not say, that according to adjudged cases, a parol 
 lease for more than three years, may not be taken out of the act by 
 delivery of possession. If attended with improvements by the lessee, 
 it certainly would bo established. To give weight to (he possession, it 
 must be a possession pursuant to the agreement. Therefore, where 
 possession had been before a parol agreement for a lease for seven 
 years it was held to be too doubtful to be considered as a part perform- 
 ance." Jones V. Peterman, 3 S. & R. 643. The principle is, that part 
 performance will entitle the party to a decree for specific performance, if 
 the acts of part performance were such as would not have been done, but 
 for the agreement ; and done with a view to perform it ; and were also 
 prejudicial to the party performing. Thus, in Davenpcrt v. Mason, 15 
 Mass. 89., wliere the parties with others agreed to become interested 
 in the purchase of lands ; but the title was to be held by a part for the 
 benefit of all. An agreement under seal was executed; but it omitted 
 any provision in respect to the payment of the respective shares of the 
 purchase money ; but in a suit against the defendant for his proportion 
 of the plaintift^'s advances, held, that he was entitled to judgment. 
 Davenport v. Mason, Supra. 
 
 It is clear that no action at law will lie on the parol contract itself. 
 1 Pick. 328. And a parol agreement to execute a defeasance to an 
 absolute deed has been held to be no ground of action at law ; and the 
 court said that " Chancery could afl'ord no relief in this case ; for the 
 deed was made and delivered according to the intent of the parties ; and 
 the breach of promise is no more fraudulent than any other breach of 
 trust or promise." Boyd v. Stone, 11 Mass. 342. 
 
 Where a tenant for life permitted the plaintifl' to cut a ditch throuf^h 
 her land, to supply his mill with water ; and the former dying, the latter 
 made a verbal agreement with the remainder man to purchase the 
 ditch ; and the purchase money 'Xo be ascertained by an award of arbi- 
 trators. The award having been made, the plaintift' sued his bill for a 
 specific performance of the agreement ; but the court dismissed the bill, 
 on the ground that (here was no part pcrformrmce. Hamilton v. Jones, 
 3 Gill & J. 127. But the public may acquire an interest in land; an 
 easement, by the consent of the owner, without writing ; for it is by 
 operation of law : And a contract to pay f*r land occu|)itd as a road is 
 a valid contract. 8 Johns. 256 : S. P. 10 ih. 109. Before (he R. S. 
 no writing was necessary to give conser>< to lay out a road or to relin- 
 quish the damages : And where the defendant promised to pnv (he 
 
 VOL. I. 19
 
 I^g OF PAROL AGREEMENTS. 
 
 posed by a case, in which the contrary was decided, upon 
 the most convincing grounds. On this subject. Sir Wil- 
 liam Grant's admirable judgment in Butcher v. Butch- 
 er(w), must occur to every discerning mind ; it turns on 
 a subject so applicable to the present, that his arguments, 
 with a slight alteration, directly bear upon it. To say 
 that a considerable share of the purchase-money must be 
 given, is rather to raise a question than to establish a rule. 
 What is a considerable share, and what is a trifling sum ? 
 Is it to be judged upon a mere statement of the sum paid, 
 without reference to the amount of the purchase-money? — 
 If so, what is the sum that must be given to call for the 
 interference of the Court ? What is the limit of amount at 
 which it ceases to be trifling, and begins to be substantial ? 
 If it is to be considered with reference to the amount of 
 the purchase-money, what is the proportion which ought 
 to be paid ? Mr. Booth also was impressed with this 
 difficulty, although his sentiments are not so forcibly 
 (*)expressed. Where, he asks, will you strike the line ? 
 And who shall settle the quantum that shall suffice in 
 payment of part of any purchase-money, to draw the case 
 
 (n) 9 Ves. jun. 382. 
 
 plaintiff a certain price for his verbal relinquishment of damages against 
 the public, he was held liable to pay the stipulated damages. Noyes v. 
 Chapin, 6 Wend. 461. 
 
 A parol agreement to share in the profits of a speculation in land 
 is said not to be within the statute of frauds. 4 Conn. R. 568. No 
 interest in lands shall pass otherwise than by deed or writing : but if 
 one holds land in trust for another ; and agrees verbally to sell and ac- 
 count for the proceeds of the sale, this agreement is not within the 
 statute. Thus, in Hess v. Fox, 10 Wend. R. 436, where the mortga- 
 gee agreed to pay over to the mortgagor the surplus ; the latter having 
 released his right to redeem : held, that he was entitled to his action 
 immediately upon the sale.* " No question can arise here as to the 
 validity of the agreement to sell ; for that was performed, and it only 
 remains to pay over the money, supported by the consideration of land 
 conveyed to the promisor." 
 
 (*124}
 
 OF PAROL AGREEMENTS. 1*7 
 
 out of the Statute ; or ascertain what shall be deemed so 
 trifling as to leave the case within it ?(o)(75). 
 
 Since the above observations were written, a decision of 
 Lord Redesdale's has appeared, in which he held clearly 
 that payment of purchase-money is not a part-perform- 
 ance ; and although his Lordship did not advert to all 
 the cases on the subject, yet it is sincerely to be hoped 
 that his decision will put the point at rest. He said, that 
 it had always been considered that the payment of money 
 is not to be deemed a part-performance, to take a case 
 out of the statute. Seagood v. Meale is the leading case 
 on that subject : there a guinea was paid by way of 
 earnest ; and it was agreed clearly, that that was of no 
 consequence in case of an agreement touching lands. 
 Now, if payment of fifty guineas would take a case out of 
 the statute, payment of one guinea would do so equally ; 
 for it is paid in both cases as part-payment, and no 
 distinction can be drawn(^) : but the great reason, he 
 added, why part-payment does not take such an agree- 
 ment out of the statute, is, that the statute has said, that 
 in another case, viz. with respect to goods, it shall operate 
 as a part-performance. And the Courts have therefore 
 considered this as excluding agreements for lands, be- 
 cause it is to be inferred, that when the Legislature said 
 it should bind in case of goods, and were silent as to the 
 
 (o) 1 Ca. and Opin. 136. 
 
 (p) See ace. Cordage r. Cole, 1 Saund 319. 
 
 (75) See Smith v. Fallon's Les. 1 Serg. & Rawle, 80. Jackson v. 
 Cuirighl, 5 Munf. 308. Wetmore v. While, 2 Caines' Cas. in Error, 
 87. Bell V. Ancheu-s, 4 Dall. 152. In riwmpson and Tod, 1 Peters' 
 Rep. 388. WASHINGTON, J. says, " although it should be admit- 
 ted, that under all the circumstances of this case, payment of a part of 
 the purchase money will amount to a part performance, still, it should 
 appear beyond all reasonable doubt, that the payment was understood 
 by the parlies, to have been so made and intended."
 
 I^g OF PAROL AGREEMENTS. 
 
 case of lands, they meant that It should not bind in the 
 case of lands(^). 
 
 But, even admitting that the payment of purchase- 
 money may be deemed a part-performance, yet the pay- 
 ment (*)of the auction duty, however considerable, will 
 not enable the Court to decree a specific performance of 
 a parol agreement ; as the revenue laws cannot be held 
 to operate beyond their direct and immediate purpose, 
 to affect the property and vary the rights of the parties 
 not within the intention of the act(r). 
 
 In some cases it has been decided, that acts done by the 
 defendant to his own prejudice, could be made a ground 
 for compelling him to perform the agreement ; but in 
 a late case(5). Sir William Grant held the contrary, 
 where there is no prejudice to the plaintiff, because the 
 ground on which the Court acts, is fraud in refusing to 
 perform, after performance by the other party(^) ; but 
 where the defendant has, for instance, paid the auction 
 duty or purchase-money, it is no fraud on the vendor, 
 but a loss to himself, which ought not to be made a ground 
 for a specific performance against himself. 
 
 Where a person purchases several lots of an estate, in- 
 cluded in distinct articles of sale, a part-performance as 
 to one lot will not be deemed a part-performance as to 
 the other lots, and will therefore only take the agreement 
 out of the statute as to the lot in respect of which there 
 was a part-periormancerw). 
 
 It may happen, that although an agreement be in part 
 
 (q) Clinan v. Cooke, 1 Scho. & Lef. 22 ; and see O'Heilihy v. 
 Hedges, ib. 123 ; 14 Ves. jun. 388. 
 
 (r) Buckmaster v. Harrop, 7 Ves. jun. 341 ; 13 Ves. jun. 456. 
 
 («) Buckmaster v. Harrop, tibi sup. See Hawkins v. Holmes, 1 P. 
 Wms. 770 ; and see jwst, ch. 4, n. observations on Potter v. Potter. 
 
 (t) See Popham v. Eyre, LofTt, 7S6 ; Clinan v. Cooke, 1 Scho. & 
 Lef. 22 ; and 0' Herlihy v. Hedges, ibid. 123. 
 
 («) Buckmaster i'. Harrop, 7 Ves. jun. 341. 
 
 (*125)
 
 OF PAROL AGREEMENTS. 
 
 149 
 
 performed, yet the Court may not be able to ascertain 
 the terms, and then it seems the case will not be taken out 
 of the statute. If, however, the terms be made out 
 (*)satisfactorily to the Court, contrariety of evidence is 
 not material (.r), and the Court will use its utmost endea- 
 vors to get at the terms of the agreement(76). 
 
 In the case of Mortimer v. Orchard(?/), where a parol 
 agreement with two persons had been in part performed, 
 the plaintiff's witness proved an agreement different from 
 that set up by the bill, and the defendants stated an 
 agreement different from both. The Chancellor thought 
 in strictness the bill ought to be dismissed ; but as there 
 had been an execution of some agreement between the 
 parties, and there were two defendants who proved the 
 agreement set up by their answers, he decreed a specific 
 performance of the agreement confessed by the an- 
 swers(77). 
 
 In one case where, upon the faith of a parol agree- 
 ment, a man entered and built, it was proved that the 
 defendant told the plaintiff that his word was as good as 
 his bojid, and promised the plaintiff a lease when he 
 should have renewed his own from his landlord. Lord 
 Chancellor Jeflbries said, that the defendant was guilty 
 of a fraud, and ought to be punished for it ; and so 
 decreed a lease to the plaintiff, though the terms icere 
 uncertain. It was, he said, in the plaintiff's election for 
 
 (x) See 1 Ves. 221. 
 
 (j/) 2 Ves. jun. 243. See Lindsay v. Lynch, 2 Scho. oi Lef. 1. 
 
 (76) See Rowton v. Rou'lon, 1 Hen. & Munf. 92. See also, the 
 opinion of KENT, Chancellor, in Pavkhurst v. Van Corllaudl, 1 
 Johns. Ch. Rep. 281. and Phillips \. Thompson, 1 Johns. Ch. Rep. 
 149. Med V. Radcliff, 13 Johns. Rep. 297. 
 
 (77) See Cohon\. Thompson, 2 Wheat. 336. JVevJviHev. MilchtU, 
 1 Des. 480. Phillips V. Thompson, 1 Johns. Ch. Rep. 131. Park- 
 hurat V. Van Cortlandt, 1 Johns. Ch. Rep. 273. Givens v. Colder, 2 
 Des. 188. Sec also, Colson v. Thompson, ut supra, note a. 341 ; and 
 Morgan v. Morgan, 2 Wheat. 302., note d. 
 
 (*126)
 
 150 
 
 OF PAROL AGREEMENTS. 
 
 what time he would hold it, and he elected to hold dur- 
 ing the defendant's term at the old rent, but ihe plaintiff 
 was to pay costs(2:). 
 
 And in a case from Yorkshire, possession having been 
 delivered in pursuance of a parol agreement, and a dispute 
 arising upon the terms of the agreement, Lord Thurlow 
 sent it to the Master, upon the ground of the possession 
 being delivered, to inquire what the agreement was. 
 The difficulty was in ascertaining what the terms were. 
 The Master decided as well as he could, and then the 
 (*)cause came on before Lord Rosslyn, upon further di- 
 rections, who certainly seemed to think Lord Thurlow 
 had gone a great way, and either drove them to a com- 
 promise, or refused to go on with the decree upon the 
 principle upon which it was made(a). 
 
 Lord Thurlow, however, appears to have formed a 
 settled opinion upon this point. For in Allan v. Bow- 
 er(6), where his Lordship considered the written memo- 
 randum as evidence of a parol agreement, which was in 
 part performed (whether rightly or not(c) is immaterial to 
 the present question), he directed the Master, wlio had 
 refused to admit parol evidence, to inquire and state what 
 the promise was, that was mentioned in the memorandum, 
 and at what time the promise was made, and what inter- 
 est the tenant was to acquire in the premises under such 
 promise ; and the Master was to be at liberty to state 
 specially any particular circumstances that might arise 
 on such inquiries, and the parties were to be examined on 
 interrogatories. In consequence of this order, evidence 
 was received, which proved that the tenant was to hold 
 during his life ; and Lord Thurlow decreed a lease to be 
 executed accordingly. 
 
 («) Anon. 5 Vin. Abr. 523, pi. 40 ; and see Anon, ih, 522. pi. 38. 
 (a) Anon. 6 Ves. jun, 470, cited by Lord Eldon. 
 (6) 3 Bro. C. C. 149. 
 
 (c) See 1 Sch. & Lef. 37. 
 
 (*127)
 
 OF PAROL AGREEMENTS. |5| 
 
 So in a case before Lord Redesdale, where an agree- 
 ment in writing was held to be within the statute, because 
 the term for which it was to be granted was not expressed, 
 his Lordship said, he should have had great difficulty if 
 there were evidence of part-performance. He must have 
 directed a further inquiry, for the party had not sug- 
 gested by his bill, that the agreement was for any specific 
 term, and the case stood both on the pleadings and evi- 
 dence imperfect on that head(J). And in a late case 
 before Lord Eldon, he thought the Court must at least 
 (*)endeavor to collect, if they can, what are the terms 
 the parties have referred to(c). 
 
 But in the case of Symondson v. Tweed(/), it was 
 laid down, that in all cases wherever the Court had 
 decreed a specific execution of a parol agreement, yet the 
 same had been supported and made out by letters in 
 writing, and the particular terms stipulated therein, as a 
 foundation for the decree ; otherwise the Court would 
 never carry such an agreement into execution. And in 
 a case before the late Lord Alvanley, when Master of the 
 Rolls(^), he is reported to have said, " I admit my opi- 
 nion is, that the Court has gone rather too far in per- 
 mitting part-performance, and other circumstances, to 
 take cases out of the statute, and then, unavoidably per- 
 haps, after establishing the agreement, to admit parol 
 evidence of the contents of that agreement. As to part- 
 performance, it might be evidence of some agreement, but 
 of what, it must be left to parol evidence. I always 
 thought the Court went a great way. They ought not to 
 have held it evidence of an unknown agreement, but to 
 have had the money laid out repaid. It ought to have 
 
 (d) Clinan v. Cooke, 1 Scho. & Lef. 22. 
 
 (e) Boardman v. Mostyn, 6 Ves. jun. 467. 
 (/) Free. Cha. 374 ; Gilb. Eq. Rep. 35. 
 ig) Forstcr v. Hale, 3 Ves. jun. 712, 713. 
 
 • (*128)
 
 152 
 
 OF PAROL AGREEMENTS. 
 
 been a compensation. Those cases are very dissatisfac- 
 tory. It was very right to say, the statute should not be 
 an engine of fraud, therefore compensation would have 
 been very proper. They have, however, gone farther, 
 saying, it was clear that there was some agreement, and 
 letting them prove it ; but how does the circumstance of 
 having laid out a great deal of money, prove that he is to 
 have a lease of ninety-nine years ? The common sense of 
 the thing would have been to have let them bring an 
 action for the money. I should pause upon such a case." 
 And Lord Eldon has said, that perhaps if it was res 
 f*)i7itegra, the soundest rule would be, that if the party 
 leaves it uncertain, the agreement is not taken out of the 
 statute sufficiently to admit of its being enforced. 
 
 In a late case in Ireland, where after a part-performance 
 of a parol agreement the purchaser died, and there was 
 no evidence of the amount of the price agreed on. or of 
 the quantity of estate to be conveyed, Lord Manners re- 
 fused to grant a reference for the purpose of ascertaining 
 the terms of the contract. There was, his Lordship said, 
 no evidence whatever of the terms, and the reference was 
 sought to supply the entire absence of this very material 
 part of the case. Where there is contradictory evidence 
 in a case that raises a doubt in the mind of the Court ; 
 that is to say, where the case is fully proved by the party 
 on whom the onus of proof lay, but that proof shaken or 
 rendered doubtful by the evidence on the other side, 
 there the Court will direct a reference or an issue to 
 ascertain the fact ; but where there is no evidence what- 
 ever, would it not, he asked, be introducing all the mis- 
 chiefs intended to be guarded against by the rules of 
 the Court, in not allowing evidence to be gone into after 
 publication, and holding out an opportunity to a party to 
 supply the defect by fabricated evidence, if he were to 
 direct such an inquiry ? He therefore did not think him- 
 
 (*129) . 
 
 I
 
 OF PAROL AGREEMENTS. 
 
 153 
 
 self at liberty from the evidence in the case to direct the 
 reference or issue desired (/<). 
 
 And in a later case(«), a bill for a specific performance 
 was dismissed with costs because the agreement was by 
 parol, and altiiough part-performed, the teims of it could 
 not be made out by reason of the variance between the 
 witnesses for the plaintiff. 
 
 (*)We cannot but observe the growing reluctance ma- 
 nifested to carry parol agreements into execution, on the 
 ground of part-performance, where the terms do not dis- 
 tinctly appear ; and although, according to many autho- 
 rities, the mere circumstance of the terms not appearing, 
 or being controverted by the parties, will not, of itself, 
 deter the Court from takins; the best measures to ascertain 
 the real terms(}") ; yet the prevailing opinion requires 
 the party seeking the specific performance in such a case 
 to show the distinct terms and nature of the contract. We 
 may however remark, that it rarely happens that an 
 agreement cannot be distinctly proved where the estate 
 is sold. Most of the cases on this head have arisen on 
 leases, where the covenants, &c. are generally left open 
 to future consideration. 
 
 Where a parol agreement is so far executed as to en- 
 title either of the parties to require a specific execution 
 of it, it will be binding on the representatives of the 
 other party in case of his death, to the same extent as he 
 himself was bound by it(/t:)(78). 
 
 In a case before Lord Redesdale(/), he held that a 
 
 (h) Savage v. Carroll, 1 Ball & Bealty, 265. See ibid. 404, 550, 
 551. 
 
 (t) Reynolds v. Waring, 1 You. 346. 
 
 ( j) See Savage v. Carrol, 2 Ball & Beat. 444. 
 
 {k) Vide infra, eh. 4. 
 
 (/) Shannon r. Bradstrcet, 1 Scho. & Lef. 52 ; Lowe v. Swift, 2 Ball 
 & Beat. 529. 
 
 (78) See Grant v. Craigmiles, 1 Bibb. 203. 
 VOL. I. 20 (*130)
 
 154 
 
 OF PAROL AGREEMENTS. 
 
 contract by a tenant for life with a power of leasing, to 
 grant a lease under his power, was binding on the re- 
 mainder-man. In the course of the argument, a question 
 was put from the bar, whether, if this had been a case 
 of a parol agreement in part performed, it could be en- 
 forced ? In answer to which. Lord Redesdale expressed 
 himself thus : " That, I think, would raise a very dis- 
 tinct question, a question upon the statute of frauds ; 
 and perhaps a remainder-man might be protected by the 
 statute, though the tenant for life would not. For the 
 (^)party himself is bound by a part-performance of a 
 parol agreement, principally on the ground of fraud, 
 which is personal. Such a ground could scarcely be made 
 to apply to the case of a remainder-man, unless money 
 had been expended, and there had been an acquiescence 
 after the remainder vested, which were held by Lord 
 Hardwicke, in Stiles v. Cowper, 3 Atk. 692, in the case 
 of an actual lease under a power, but with covenants not 
 according to the power, to bind the remainder-man to 
 grant a lease for the same term with covenants according 
 to the power." 
 
 In a case where it was alleged on the one side, that 
 under a parol agreement the purchase-money had been 
 paid and possession* delivered ; and on the other, that 
 there was no sale, but that possession was delivered to 
 make a qualification, and the alleged purchaser was a 
 mere agent, and both the seller and purchaser were 
 dead ; an issue was directed whether the purchaser was, 
 at his death, beneficially entitled to the premises in ques- 
 tion (m). 
 
 These remarks may be closed by observing, that equity 
 seems to have been guided by nearly the same rules in 
 compelling a specific performance of parol agreements 
 
 (m) Barkettu. Randall, 3 Mer. 466. 
 (*131)
 
 OF PAROL AGREEMENTS. 
 
 155 
 
 before the statute(??), as have been adhered to since ; 
 but still, the student cannot be too cautious in distin- 
 guishing the cases which were decided before the statute 
 from those decided subsequently. Much confusion has 
 arisen from inattention |^o this point. 
 
 (*)SECTION IV. 
 
 Of the Admissibility of Parol Evidence to vary or annul 
 Written Instruments. 
 
 Of this learning we may treat under three heads, 
 1st, where there is not any ambiguity in the written 
 instrument ; 2dly, where there is an ambiguity ; and, 
 Sdiy, where a term of an agreement is omitted or varied 
 in the written instrument by mistake or fraud. — And, 
 
 I. Previously to the statute of frauds, parol evidence 
 might have been given of collateral and independent 
 facts, which tended to support a deed. Thus, although 
 a valuable consideration was always essential to the vali- 
 dity of a bargain and sale, yet Rolle laid it down, that(o) 
 upon averment that the deed was in consideration of 
 money, or other valuable consideration given, the land 
 should pass, because the averment was consistent with 
 the deed. The same rule has prevailed since the statute 
 of frauds. Where in a conveyance 28/. only were stated 
 
 (n) See Miller r. Blandist, Toth. 85 ; Willam v. Nevil, ibid. 135 ; 
 Feme v. Bullock, ibid. 200, 238 ; Clark v. Hackwell, ibid. 260 ; Sim- 
 mons V. Cornelius, 1 Cha. Rep. 12S ; Anon. 2 Frecrn. 128 ; Toll v. 
 Smith, 3 Cha. Rep. 16; and sec Marquis of Normanby v. Duke of 
 Devonshire, 2 Freem. 217. 
 
 (o) 2 Ro. Abr. 786. (N.) pi. 1 ; and see 1 Rep. 176, a. 
 
 (*132)
 
 156 
 
 OF PAROL EVIDENCE. 
 
 to have been received, parol evidence was admitted to 
 prove that 2/. more were actually paidfp)(79). And in a 
 later case parol evidence was received, that a sum of 
 money was paid as a premium in order to constitute the 
 relation of master and apprentice, although no mention 
 of it was made in the written agreement entered into be- 
 tween the parties(9). In all these cases we observe, that 
 the evidence is not offered to contradict or vary the agree- 
 ment, but to ascertain an independent fact, which is 
 consistent with the deed, and which it is necessary to 
 (*)ascertain, with a view to effectuate the real intention 
 of the parties. 
 
 It is, however, clearly settled, that parol evidence is 
 not admissible to disannul and substantially vary a writ- 
 ten agreement ; for, as Lord Hardwicke observes, to add 
 any thing to an agreement in writing by admitting parol 
 evidence, is not only contrary to the statute of frauds and 
 
 (2?) Rex V. the Inhabitants of Scammonden, 8 Term Rep. 474. 
 (q) Rex V. the Inhabitants of Laindon, 8 Term Rep. 379 ; and see 
 2 Cha. Ca. 143 ; TuU v. Parlett, 1 Mood. & Malk. 472. 
 
 (79) SeeDavejiporiw.JMason, 15 Mass. Rep. 85. The fact whether 
 the consideration expressed in the deed, was paid, or not, may be in- 
 quired into by parol evidence. Shepard v. Little, 14 Johns. Rep. 201. 
 Boioen V. Bell, 20 Johns. Rep. 338. So, if a deed, after specifying a 
 certain consideration, adds, " and for other considerations," parol evi- 
 dence may be resorted to, to prove what those considerations were. 
 Benedict v. Lynch, 1 Johns. Ch. Rep. 370. See Harvey v. Alexander, 
 1 Rand. 219. But in Schemerhorn v. Vanderhcyden, 1 Johns. Rep. 
 139, it was held, that a different, or greater consideration, than that ex- 
 pressed in the written agreement, was intended cannot be proved by pa- 
 rol. See Church v. Church, 4 Yeates, 280. ; also, Dixon v. Swiggeit, 
 1 Har. & Johns. 252. 
 
 An acknowledgment, in the body of a deed, of the payment of the 
 purchase-money, and a receipt indorsed for the same, not conclusive evi- 
 dence of payment, nor a bar to a suit for the purchase-money. Hamil- 
 ton V. JWGuire, 3 Serg. & Rawle, 355. See Bell v. Andrews, 4 Dall. 
 152. 
 
 (*133)
 
 OF PAROL EVIDENCE. i ty 
 
 peijuries, but to the rule of the common law before that 
 statute was in being(r)(80). 
 
 Thus, in a leading case on this subject(5), it appeared 
 that bj an agreement in writing, the grass and vesture of 
 hay from off a close of land, called Boreham's Meadow, 
 were to be taken by one Ansell. The subscribing witness 
 to the agreement proved the written agreement, and he 
 and another person deposed, that it was at the same time 
 (when the written agreement was made) agreed by the 
 
 (r) Parteriche v. Powlet, 2 Atk. 383 ; and see Tinney v. Tinney, 3 
 Atk. 8 ; Binstead v. Coleman, Bunb. 65 ; Hogg v. Snaith, 1 Taunt. 
 347. 
 
 (s) Meres v. Ansell, 3 Wils. 275 ; and see Mease v. Mease, Cowp. 
 47; Lofft, 457; CufF v. Penn, 1 Mau. & Selw. 21 ; Greaves r. Ash- 
 lin, 3 Campb. 426 ; Hope v. Atkins, 1 Price, 143. 
 
 (80) This principle is also well settled in most of the United Slates. 
 Richards v. Killam, 10 Mass. Rep. 239,244. Stevens v. Cooper, 1 
 Johns. Ch. Rep. 425. Jackson v. Sill, 11 Johns. Rep. 201. Paine v. 
 M'lnlier, 1 Mass. Rep. 69. Revere v. Leonard, 1 Mass. Rep. 91. 
 Storer v. Freeman, 6 Mass. Rep. 435. Stachpolcv. Arnold, 11 Mass. 
 Rep. 27. Dwight v. Pomero]}, 17 Mass. Rep. 303. Thompson v. 
 White, 1 Dall. 426. O'Harra v. Hall, 4 Dall. 340. JSVDermot v. 
 U. S. Ins. Co. 3 Serg. & Rawle, 609. Speake v. United States, 9 
 Cranch, 28, 37. Pierson v. Hooker, 3 Johns. Rep. 68. Hoxces v. 
 Barker, 3 Johns. Rep. 506. Jackson v. Croy, 12 Johns. Rep. 427. 
 Thompson v. Kctchum, 8 Johns. Rep. 146. 2d edit. Fitzhiigh v. Run- 
 yon, 8 Johns. Rep. 292. 2d edit. Movan v. Haijs, 1 Johns. Ch. Rep. 
 339. Stevens v. Cooper, 1 Johns. Ch. Rep. 425. Snyder v. Snyder, 
 6 Binn. 483. Lee v. Biddis, 1 Yeates, 8. Vandervoort v. Smith, 2 
 Caines' Rep. 155. Hamilton v. Cawood, 3 Har. & M'Hen. 437. 
 Dupree v. M'Donald, 4 Des. 209. Barrel v. Barret, 4 Des. 447. 
 Sessions v. Barjield, 2 Bay, 94. JMilling v. Crankfield, 1 M'Cord, 
 261. South Carolina Society v. Johnson, 1 M'Cord, 41. Jackson v. 
 Bowen, 1 Caines' Rep. 358. Ross v. JVorvell, 1 Wash. 14. Flemings 
 V. JVillis, 2 Call, 5. But see Baker v. Glascock's Les. 1 Hen. & Munf. 
 177. J\Iann v. Mann, 1 Johns. Ch. Rep. 231. Herd v. Bissell, 1 
 Root, 260. Dunham v. Baker, 2 Day, 137. See Treadwell v. Bulk- 
 ley, 4 Day, 395. ; Smith v. Fenner, 1 Gallis. 170. Holmes v. Simons, 
 3 Des. 149, 152. Little v. Henderson, 2 Yeates, 295.
 
 i^g OF PAROL EVIDENCE. 
 
 parties by parol, that Ansell should not only have the 
 hay from off Boreham Meadow, but also the possession 
 of the soil and produce of that and another close of land. 
 The cause was tried at nisi prius before Lord Mansfield, 
 who admitted the evidence, and afterwards reported that 
 he was not dissatisfied with the verdict in consequence 
 of it. But Lord Chief Justice De Grey, and the other 
 Judges of the Court .of Common Pleas, held decidedly, 
 that the evidence was totally inadmissible, as it annulled 
 and substantially altered and impugned the written agree- 
 ment(81). 
 
 (81) A vendor of land in several lots was unable to give a title to 
 one, whereupon the vendee agreed by parol to waive the title as to that 
 lot. This agreement cannot be set up against the original contract in 
 writing. The judgment contains many observations on the power of 
 varying contracts in writing, by subsequent parol agreements, and a 
 distinction between contracts in writing under the statute of frauds and 
 other contracts in writing. Parke, J. staled that he never could under- 
 stand the principle upon which Cuff v. Penn, 1 M. & S. 21. and similar 
 cases proceeded. Goss v. Lord Nugent, 6 B. & Ad. 58 ; 3 Nev. & 
 Man. 28. S. C. 
 
 It is true as a general rule that any verbal agreement before the mak- 
 ing of tke writing is not to be received in evidence ; but the writing 
 alone is to be looked to as the evidence of the final agreement. In 
 Oerrish v. Washburn, 9 Pick. 338, where the defendants gave an ac- 
 countable receipt for money received of the plaintiffs ; and this action 
 being brought to recover the money, the defendants at the trial offered to 
 prove, that before the execution of the receipt, the plaintiff being indebt- 
 ed to one W. ; and the latter indebted to the defendants, agreed that the 
 latter might arrange the payment of the money mentioned in the receipt 
 with W. : And that the receipt was made in execution of the con- 
 tract : — but the Judge rejected the evidence. The whole Court grant- 
 ed a new trial ; and held that it was admissible ; for the writing was 
 neither a promissory note, nor a mere receipt. " We view it, said the 
 chief justice, in neither of these lights, or rather in both. The promise 
 made in the receipt may be performed otherwise than by paying over 
 the money to the plaintiff, and in any way conformable to the intention 
 of the parlies." 
 
 The maxim that a sealed contract cannot be avoided or waived but by 
 an instrument of a like nature ; or generally, that a contract under
 
 OF PAROL EVIDENCE. 
 
 159 
 
 So in Preston v. Merceau(^), by an agreement in writing 
 a house was let at 26/. a year ; and the landlord attempted 
 
 (/) 2 Blackst. 1249. 
 
 seal cannot be avoided or altered or explained by parol evidence, like 
 other maxims has received quaUfications, and indeed was never true to 
 the letter, for at all times, a bond, covenant or other sealed instrument 
 might be defeated by parol evidence of payment, accord and satisfac- 
 tion, &c. Therefore, in Munroe v. Perkins, 9 Pick. 29S. where the 
 action was assumjJsU, for work, materials, &c. done and furnished by the 
 plaintift' for the defendant. The defence set up was, that the work was 
 done and the materials were furnished on a special contract under seal 
 made by the defendant and Payne on behalf of themselves and other 
 subscribers to the building ; and such a contract was produced in evi- 
 dence. The plaintiff showed that being unable to go on with the con- 
 tract without loss, defendants promised him to make him whole ; and 
 upon this assurance the work was done without regard to the special 
 contract. The Court he'd, that the plaintiff was entitled to recover. 
 " The parol promise, it is contended, was without consideration. 1'his 
 depends entirely on the question, whether the fust contract was waived. 
 The plaintifT having refused to perform the contract, as he might do, 
 subjecting himself to such damages as the other parties might show 
 they were entitled to recover, he afterwards went upon the faith of the 
 new promise and finished the work. This was a sufficient considera- 
 tion. If the defendants were willing to accept his relinquishment of 
 the old contract, the law we think will not prevent it." 
 
 So in Lattimore et al v. Harsen, 14 Johns. R. 330, where the plain- 
 tills had stipulated to perform certain work for a stipulated sum, under a 
 jicnally. Having entered upon the performance of it, they refused to 
 perform, whereupon the defendant, by parol, released them from their 
 covenant, and promised, if they would complete the work, to pay them 
 by the day. The Court held the new contract to be binding. This doctrine 
 was also recognized in the subsequent case of Dearborn v. Cross, 7 
 Cowen, 48, where a parol agreement executed was held to discharge 
 a bond or other specialty. The cases of Fleming v. Gilbert, 3 Johns. 
 358 ; Keating v. Price, 1 J. Cas. 22 ; Edwin v. Saunders, 1 Cowen, 
 250. In Ballard v. Walker, 3 J. Cas. 64, lapse of time alone was held 
 to be a waiver of the contract. 
 
 Where there is an agreement in writing, it merges all parol agree- 
 ments and previous conversations ; but there are many cases we have 
 seen in which a new parol contract is admitted to be proved. And 
 there is a distinction between a suit upon the written contract itself, in
 
 160 
 
 OF PAROL EVIDENCE. 
 
 (*)to show, by parol evidence, that the tenant had agreed 
 to pay the ground-rent for the house to the original land- 
 lord, over and above the 261. a year ; but the Court of 
 Common Pleas rejected the evidence. 
 
 And upon the general rule of law, as it seems, inde- 
 pendently of the statute of frauds, it has been determined 
 that verbal declarations by an auctioneer in the auction- 
 room, contrary to the printed conditions of sale, are in- 
 admissible as evidence, (82) unless perhaps the purchaser 
 has particular personal information given him of the mis- 
 take in the particulars(i<). 
 
 In a late case(v), upon the sale of timber by a written 
 particular, which was silent as to the quantity, it was 
 attempted to show, that the auctioneer verbally warranted 
 the quantity to be eighty tons, and it was insisted that 
 this evidence was admissible, because it did not contradict 
 the particular, but merely supplied its defect in not 
 
 {u) Gunnisr. Erhart, 1 H. Blackst. 289. See 13 Yes. jun. 471. 
 and infra; and Fife v. Clayton, 13 Ves. jun. 546; Higginson v. 
 Clowes, 15 Yes. jun. 516. 
 
 (v) Powell V. Edmunds, 12 East, 6 ; Jones v. Edney, 3 Camb. 285. 
 
 which case it has been held that parol evidence shall not be received : 
 and a suit brought on the ground of a new subsequent agreement not 
 in writing : in the latter case parol evidence is admitted. Duncan, J. 
 in Le Fevre v. Le Fevre, 4 S, & R. 241. said "a party may be ad- 
 mitted to prove by parol evidence, that after signing a written agree- 
 menti the parties made a verbal agreement, varying the former, provid- 
 ed their variations have been acted upon, and the original agreement 
 can no longer be enforced without a fraud on one party." Parol 
 evidence was admitted in that case to prove an alteration of the 
 course of an aqueduct established by deed. The evidence was 
 not offered for the purpose of contradicting the deed, but to show a sub- 
 stitution of another spot. And as was well remarked by the learned 
 Judge, " if this had not been carried into effect, the evidence would not 
 have been admissible ; but where the situation of the parties is altered, 
 by acting upon the new agreement, the evidence is proper." 
 
 (82) See Wright's Les. v. Deklijne, 1 Peters' Rep. 199, 204. See 
 also, Waimvright v. Read, 1 Des. 573. 
 
 (*134)
 
 or PAROL EVIDENCE. igi 
 
 Stating the quantity. But it was held that the evidence 
 was not admissible(83). Lord Ellenborough said, that the 
 purchaser ought to have had it reduced into writing at 
 the time, if the representation then made as to the quan- 
 tity swayed him to bid for tlie lot. If the parol evidence 
 were admissible in this case, he knew of no instance where 
 a party might not, by parol testimony, superadd any term 
 to a written agreement, which would be setting aside all 
 written contracts, and rendering them of no effect. There 
 was no doubt, his Lordship added, that the warranty as 
 to the quantity of timber would not vary the agreement 
 contained in the written conditions of sale. 
 
 So, since the act of parliament for altering the style, 
 a demise from Michaelmas must be taken to be from 
 (*)new Michaelmas, and parol evidence cannot be admit- 
 ted to show that the parties intended it to commence at 
 old Michaelmas(a;), unless the demise is by parol(2/). 
 
 The rules of evidence are universally the same in courts 
 of law and equity. Therefore parol evidence, which 
 goes to substantially alter a written agreement, cannot 
 be received in a court of equity any more than in a court 
 of law(z)(84). 
 
 (x) Doe V. Lea, 11 East, 312. 
 
 iy) Doe V. Benson, 4 Barn. & Aid. 588. 
 
 (r) See 3 Wils. 276 ; and see Foot v. Salway, 2 Cha. Ca. 142. 
 
 (83) See Wright's Les. v. Deklyne, 1 Peters' Rep. 199, 204. See 
 also Wainicright v. Read, 1 Des. 673. 
 
 (84) See Dwight v. Pomeroy, 17 Mass. Rep. 303. JMovan v. Hays, 
 1 Johns. Ch. Rep. 443, Per KENT, Chancellor. Holmes v. Simons, 
 3 Des. 149, 152. Diipree v. M'Donald, 4 Des. 209. 
 
 " Indeed it would be strange that, in any country, there should be 
 independent tribunals, having jurisdiction over the same subject matter, 
 which should act upon such different principles, as that a contract 
 should be valid in one and void in the other. One may have forms and 
 processes to enforce a contract, which the other may want ; but it 
 would seem impossible that the contract itself should be valid or invalid, 
 according to the form in which it should be discussed. But were it 
 otherwise in England, or in New York, as some of the cases tend to 
 
 VOL. 1. 21 (*136)
 
 1 nc) or PAROL EVIDENCE. 
 
 Thus in the case of Lawson v. Laiide(a), a bill was 
 brought to carry into execution an agreement between 
 the plaintiff and defendant, for granting to the defendant 
 a lease of a farm. The defendant objected to execute 
 the lease, because some land, called Oxlane, agreed to be 
 demised, was left out of the lease. The plaintiff offered 
 evidence to prove, that it was left out by the particular 
 and joint direction of the plaintiff and defendant. Sir 
 Thomas Clarke held the evidence to be in direct contra- 
 diction to the stutute of frauds, and therefore dismissed 
 the bill. 
 
 So in a case before Lord Bathurst(6), the bill was 
 filed for an injunction to stay proceedings at law for 
 a breach of covenant, in not assigning all the premises, 
 which the defendant insisted, by an agreement in writing, 
 and a lease in pursuance of it, were to be assigned. The 
 plaintiff stated by his bill, that though the agreement was 
 for all the premises, yet the defendant, at the time of the 
 execution of the lease, agreed that three pieces of land 
 should be excepted, and the plaintiff examined several 
 witnesses to prove the fact, which they did ; but the 
 defendant by his answer denied the fact, and insisted 
 (*)upon the extent of the written agreement ; and the 
 
 (o) 1 Dick. 346. 
 
 (i) Fell V. Chamberlain, 2 Dick. 484. I could not meet with the 
 facts in the Registrar's book; see Reg. Lib. A. 1772, fol. 1. 496. 
 
 shew (2 J. Ch. R. 585 ; 7 Johns. 373.) it would by no means follow 
 that, in this commonwealth, the same doctrine would be received." 
 (Per Parker C. J. in Dwight v. Pomeroy.) He added, " there are but 
 two cases, in which parol evidence can be admitted, to control the ef- 
 fect of a deed or written contract, in itself complete and intelligible. 
 One is fraud, of which the injured part may avail himself at law as well 
 as in equity ; and the other is where application is mads in equity to 
 enforce a written contract ; the adverse party in the latter case may 
 show that the instrument relied on does not contain the true agreement of 
 the parties, or the whole of it. In the latter case equity may refuse the 
 exercise of its powers, unless justice is done to the other party. 
 (*136)
 
 OF PAROL EVIDENCE. Jgg 
 
 parol evidence being objected to at the hearing, it was not 
 permitted to be read. 
 
 And in an important case before Lord Eldon(c), his 
 Lordship refused to execute an agreement with a varia- 
 tion attempted to be introduced by parol, on the ground 
 of mistake, or at least of surprise, which was denied by 
 the answer. So in the late case of Woollam v. Hearn(c?), 
 where a specific performance was sought of an agreement 
 for a lease, at a less rent than that mentioned in the agree- 
 ment, which variation was introduced by parol, on the 
 ground of fraud and misrepresentation in the landlord ; 
 the evidence was read without prejudice, and the Master 
 of the Rolls thought it made out the plaintiff's case ; but 
 his Honor held himself bound by the authorities, and 
 accordingly rejected the evidence, and dismissed the bill. 
 And this doctrine has been distinctly recognized by Lord 
 Redesdale(e). 
 
 So verbal declarations, in opposition to printed condi- 
 tions of sale, are inadmissible as evidence in equity as 
 well as at law(/). 
 
 And if a material term be added by one party to a 
 written agreement after its execution, he destroys his 
 own rights under the instrument. But although this 
 doctrine has been referred to the statute of frauds, yet 
 it seems rather to depend on the principles of the com- 
 mon law(«-). 
 
 In the late case of Besant v. Richards(/t), where the 
 
 {c) Marquis of Townshend r. Stangroom, 6 Ves. jun. 328. See 1 
 Ves. & Bca. 526, 527. 
 
 ((/) 7 Ves. jun. 211. 
 
 (e) 1 Scho. & Lef. 39. 
 
 (/) Jenlunson v. Pepys, 6 Ves. jun. 330, cited ; 15 Ves. jun. 621 ; 
 1 Ves. & Bea. 528 ; see 15 Ves. jun. 171, 646 ; Higginsonr. Clowes, 
 15 Ves. jun. 516. 
 
 (o-) Powell r. Divett, 15 East, 29. 
 
 (A) 1 Tomlyn 509.
 
 164 
 
 OF PAROL EVIDENCE. 
 
 purchaser was plaintiff, the contract described the pro- 
 perty (*)as held by one Watson, and the sale was to be 
 completed at Michaelmas. Watson held an agreement for 
 a lease for ten years, but the seller represented to the 
 purchaser that this agreement was void, and that he had 
 served Watson with notice to quit at Michaelmas, and 
 that he would give possession at that time. The tenant 
 refused to quit, and the Master of the Rolls held that the 
 purchaser ought not to be bound by the agreement, pur- 
 chasing as he did on the faith of that representation. He 
 was entitled to be released from the agreement altogether, 
 or if he chose he might perform it and have compensa- 
 tion, and the plaintiff electing to perform the agreement 
 with a compensation, a decree was made accordingly ; 
 but it seems difficult to sustain this decision consistently 
 with the authorities, although there might have been 
 sufficient ground to have released the purchaser altogether. 
 
 But when equity is called upon to exercise its peculiar 
 jurisdiction, by decreeing a specific performance, the party 
 to be charged is to be let in to show, that, under the cir- 
 cumstances, the plaintiff is not entitled to have the agree- 
 ment specifically performed (i)(85). 
 
 Therefore a defendant resisting a specific performance 
 of an agreement, may prove by parol evidence, that by 
 fraud the written agreement does not contain the real 
 terms(y). Such evidence wsis admitted by Lord Hard- 
 
 {i) See 7 Ves. jun. 219. 
 
 {j) See the cases cited infra, as to discharging or varying a written 
 agreement by parol ; and see Walker v. Walker, 2 Atk. 98 ; and see 6 
 Ves. jun. 334, n. 
 
 (85) See Stevens v. Cooper, 1 Johns. Ch. Rep. 425. Botsford v. 
 Burr, 2 Johns. Ch. Rep. 405. Gillespie v. J\Ioon, 2 Johns. Ch. Rep. 
 585. In JMaryland, it has been determined, in an action at law, on a 
 bond for the purchase-money of lands, that parol evidence cannot be 
 given by a witness, to shew, that he was seized of part of the lands sold, 
 in order to rebut the claim of the vendor. Sharpe v. Gibson, 1 Har. 
 & Johns. 447.
 
 OF PAROL EVIDENCE. 
 
 165 
 
 wicke in Joynes v. Statham(A;) ; and in the case of 
 Woollam V. Hearn(/), before cited, the Master of the 
 Rolls said, that if it had been a bill brought by the de- 
 fendant for a specific performance, he should have been 
 (*)bound by the decisions to admit the parol evidence, and 
 to refuse a specific performance. 
 
 So Lord Hardwicke admitted, that an omission by mis- 
 take or surprise, would let in the evidence as well as 
 fraud ; and Lord Eldon actually admitted parol evidence 
 of surprise, as a defence to a bill seeking a performance in 
 specie ; but his Lordship said, that those producing evi- 
 dence of mistake or surprise, in opposition to a specific 
 performance, undertake a case of great difficulty(m). 
 In a later case, the Master of the Rolls admitted parol 
 evidence on behalf of a defendant, to show a parol pro- 
 mise at the time of signing the agreement to vary the 
 terms of it, and upon the evidence he dismissed the bill for 
 a specific performance of the written agreement(w)(86). 
 
 {1c) 3 Atk. 338. 
 
 (0 7 Ves. jun. 211. 
 
 (m) Marquis of Townshend v- Stangroom, 6 Ves. jun. 328. 
 
 (7i) C^rke V. Grant, 14 Ves. jun. 519 ; and see 15 Ves. jun. 523. 
 
 (86) Parol evidence collateral to an agreement is admissible ; but no 
 evidence of matter dehors was admissible to alter the terms and sub- 
 stance of the contract. In Clarke r. Grant, 14 Ves. 510, the parol 
 evidence admitted was of a stipulation entered into by the defendant 
 prior to, and as a condition precedent to the execution of the agree- 
 ment : and it did not seek to vary the substance of the agreement : 
 Here the purpose of the parol evidence was to show the transaction 
 conducted on the basis of an exchange. Croome v. Lediard, 2 M. & 
 R. Ch. R. 261. 
 
 The expression ' deed of conveyance' was, it seems, explained by 
 parol evidence to mean, when inserted in articles of agreement, " a 
 deed conveying the land free of all incumbrances." Subsequent deci- 
 sions, however, consider the correctness of this decision doubtful. The 
 case of Zantinger v. Ketch, 4 Dall. R. 132. therefore, in which the de- 
 cision was had, if not overruled, is certainly opposed to the rule that 
 
 (*138)
 
 Igg OF PAROL EVIDENCE. 
 
 And where lands, which upon admeasurement did not 
 contain thirty-six acres, were described in a particular to 
 contain forty-one acres by estimation, were the same more 
 or less, and the purchaser in answer to a bill for a specific 
 performance set up parol declarations of the auctioneer 
 that he sold it for forty-one acres, and if it was less an 
 abatement should be made, his Honor admitted the evi- 
 dence and dismissed the bill, because after such a declara- 
 tion made by the auctioneer, it was fraudulent and unfair 
 in the seller to insist upon the execution of the contract, 
 not giving the defendant the benefit of that declaration(o). 
 
 So where by the mistake of the solicitor the agree- 
 ment only required the purchaser to bear the expense of 
 the conveyance, whereas the real agreement was, that he 
 should also bear the expense of making out the title, the 
 Master of the Rolls admitted parol evidence of the real 
 agreement and of the mistake(87) ; and upon the strength 
 of (*)it, his Honor gave the plaintiff, the purchaser, his op- 
 tion to have his bill, which Avas for a specific performance 
 according to the terms of the written agreement, dismiss- 
 ed, or to have the agreement performed in the way con- 
 tended for by the seller(p). 
 
 m ■ 
 
 (o) Winch V. Winchester, 1 Ves. & Beam. 375. 
 
 (p) Ramsbottom v. Gosden, 1 Ves. & Beam. 165. See Flood v. 
 
 ' where the construction is on the construction of words, qua words, no 
 parol evidence can be admitted.' 4 Dall. 340 ; 3 S. & R. 609. 
 
 (87) See Gillesj)ie v. Moon, 2 Johns. Cb. Rep. 685. Chapmcm v. 
 Mien, Kirby, 399. Elmore v. Auslin, 2 Root, 415. Washburn v. 
 Merrills, 1 Day, 139. Maison v. Parhhurst, 1 Root, 404. Cook v. 
 Preslon, 2 Root, 78. In Christ v. DeffebacK; 1 Serg. & Rawle, 465, 
 TILGHMAN, Ch. J. said, " It may be laid down as settled law, that 
 parol evidence is admissible in cases of fraud and of plain mistake in 
 drawing a writing." In South Carolina, it has been decided that the 
 scrivener who drew articles of a marriage settlement, could not be allowed 
 to testify, that the object or intention of the deed, was different from 
 that which appeared on its face. Dupree v. McDonald, 4 Des. 209. 
 The same principle was recognized in Rothmahler v. Myers, 4 Des. 215. 
 (*139)
 
 OF PAROL EVIDENCE. ]g7 
 
 But in a case where a written agreement for a lease 
 had been varied in part by parol, upon a bill filed by the 
 tenant for a specific performance of the original agree- 
 ment, the landlord set up a parol waver of the written 
 agreement, and a new agreement entered into at his soli- 
 citor's, every term of which was to the disadvantage of the 
 plaintiff, without any consideration for the variation ; the 
 Master of the Rolls decreed a specific performance accord- 
 ing to the prayer of the bill. His Honor considered the 
 case made out by the lajidlord(q) not a ivaver of the con- 
 tract, but a variation by parol which had not been acted 
 upon, and which was made without consideration. The 
 first parol variation, it may be observed, was admitted, 
 and the plaintiff would have been willing to execute it. 
 
 And in a case where an estate was sold in lots, and at 
 the end of some of the lots only it was stated that the tim- 
 ber was to be taken at a valuation, but there was a gen- 
 eral condition that the timber should be paid for ; the 
 seller's bill for a specific performance, requiring the pur- 
 chaser of several lots to pay for all the timber, was dis- 
 missed, and parol evidence of the declaration of the auc- 
 tioneer that the timber on all the lots was to be paid for, 
 was rejected. The purchaser then filed a bill against the 
 seller for a specific performance, according to his construc- 
 tion that he was to pay for the timber on the lots only to 
 which (*)<i stipulation to that effect was added. The seller, 
 as defendant, ofiered parol evidence of the declaration by 
 the auctioneer. The Vice-Chancellor agreed that fraud, 
 mistake or surprise, would let in the evidence as a defence ; 
 but no authority having decided that evidence can be re- 
 ceived, except upon one of those grounds, and these dec- 
 
 Finlay, 2 Ball & Beatty, 9 ; Lord William Gordon r. Marquis of Hert- 
 ford, 2 Madd. 106; Garrard r. Girling,! Wils. Ch. Cas. 460; 1 
 Swanst. 244. 
 
 (9) Price V. Dyer, MS. ; S. C. 17 Yes. jun. 356 ; Robinson r. Page, 
 3 Riiss. 114. 
 
 (*140)
 
 168 
 
 OF PAROL EVIDENCE. 
 
 larations in the case before his Honor being offered where 
 the parties had contracted in writing upon a subject dis- 
 tinctly adverted to in their written contract, which made 
 a provision for it (whether explicit and satisfactory is not 
 material), the evidence of these declarations must be re- 
 jected, because there was no fraud, mistake, or surprise, 
 and the evidence was offered to contradict, explain, or 
 vary the written contract(r). It was not, however, ne- 
 cessary to decide the point ; and it may deserve reconsid- 
 eration whether the evidence might not be deemed admis- 
 sible in equity as a defence, simply on the ground that the 
 plaintiff, who ought to come into equity with clean hands, 
 sought to commit a fraud in evading to pay for the tim- 
 ber, although the auctioneer declared that it was to be 
 paid for. 
 
 The case before Lord Eldon(5) shows the rule of equity 
 in a strong light. The landlord filed a bill for a specific 
 performance of the written agreement, varied by the parol 
 evidence ; the tenant filed a cross-bill for a specific per- 
 formance of the written agreement. The result was, that 
 both bills were dismissed ; the first, because parol evidence 
 was not admissible as a foundation for a decree enforcing 
 a specific performance ; the second, on the ground that 
 such evidence was admissible to rebut the equity of the 
 plaintiff in the second bill. 
 
 A similar case appears to have been decided by Lord 
 Chancellor Macclesfield. The case has, I believe, never 
 (*)been cited, and it requires some attention to get at the 
 facts. They appear, however, to be, that the plaintiff in 
 the first bill sought a specific performance of an agree- 
 ment by him to grant a lease to the defendant. The 
 defendant set up a parol agreement, by which he was to 
 have liberty to grub bushes, and exhibited a cross-bill 
 
 (r) Clowes r. Higginson, 1 Ves. & Bea. 524. 
 («) Lord Tdwnshend v. Stangroom. 
 (*141)
 
 OF PAROL EVIDENCE. 
 
 169 
 
 for a performance in specie of the written agreement, with 
 the addition of a clause to grub bushes according to the 
 parol agreement, and both the bills were dismissed, but 
 without costs(/). 
 
 Upon the admissibility of parol evidence, as a defence 
 to a bill seeking a specific performance, Lord Redesdale 
 has forcibly observed, that it should be recollected what 
 are the words of the statute : " No person shall be charged 
 upon any contract or sale of lands, unless the agreement, 
 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 authorized." No 
 person shall be charged with the execution of an agree- 
 ment who has not, either by himself or his agent, signed 
 a written agreement ; but the statute does not say, that 
 if a written agreement is signed, the same exception shall 
 not hold to it that did before the statute. Now, before the 
 statute, if a bill had been brought for specific performance, 
 and it had appeared that the agreement had been pre- 
 pared contrary to the intent of the defendant, he might 
 have said, " That is not the agreement meant to have 
 been signed." Such a case is left as it was by the statute : 
 it does not say, that a written agreement shall bind, but 
 that an unwritten agreement shall not h\nd(u). And 
 nearly the same observations upon the negative words of 
 the statute, were made by the Lord Chief Baron Skinner, 
 in the great case of Rann and Hughes(.T). 
 
 (*)But if parties enter into an agreement which is cor- 
 rectly reduced into writing, and at the same time add 
 a term by parol, equity cannot look out of the agreement, 
 although the person insisting upon the parol agreement 
 
 (<) Hosier r. Read, 9 Mod. 86. I hnve searched the Register's 
 books for this case without success. 
 («) 1 Scho. & Lef. Rep. 39. 
 (x) 7 Term Rep. 3.50, n. 
 VOL. J. 22 (*142)
 
 170 
 
 OF PAROL EVIDENCE. 
 
 is a defendant, and sets it up as a bar to the aid of the 
 Court in favor of the plaintiff. 
 
 Thus, in Omerod v. Hardnian(i/), the vendor filed a bill 
 for a specific performance. It was not mentioned in the 
 written agreement at what time the purchaser was to take 
 possession of the estate ; but the purchaser, the defendant, 
 offered parol evidence to show that it was at the same 
 time agreed, though not made part of the written agree- 
 ment, that he should be let into possession at a stated 
 time ; and he resisted a performance of the agreement, on 
 the ground of possession not having been delivered to him 
 according to the parol agreement. Mr. Justice Chambre 
 objected to the evidence being read. He said, that it was 
 urged for the defendant, that evidence may be read where 
 the parol agreement is not inconsistent with the written 
 agreement. This, (that is, the parol agreement, in the 
 case before him,) he added, was to further the written 
 agreement, and to secure what was through carelessness 
 omitted to be provided for in the written agreement, viz. 
 delivery of possession, according to the custom of the 
 country. Mr. Baron Graham said, that the parol agree- 
 ment could only be admitted where the written agreement 
 was not drawn according to the intention of the parties at 
 the time. You cannot by parol add any thing to what 
 was the real agreement at the time, after that has been 
 correctly reduced into writing. And he entirely agreed 
 with Mr. Justice Chambre, that the parol could not be 
 made to form part of the written agreement(88). 
 
 (i/) 5 Ves. jun. 722. 
 
 (88) See Thompson v. Kdcham, 8 Johns Rep. 146. 2d edit. Fitz- 
 hugh V. Rtmyon, 8 Johns. Rep. 292. 2d edit. Staclqjole v. Jlrnold, 1 1 
 Mass. Rep. 27. Movan v. Hmjs, 1 Johns. Ch. Rep. 339. Stevens 
 V. Cooper, 1 Johns. Ch. Rep. 426. Snyder v. Snyder, 6 Binn. 483. 
 Streator v. Jones, 1 Murphy, 449. Smilh v. Williams., 1 Murphy, 426. 
 S. C 1 Car. Law Rep. 263. Dickerson v. DicJcerson, 1 Car. Law
 
 OF PAROL EVIDENCE. 
 
 171 
 
 Lord Hardwicke is reported(2:) to have said, that 
 (*)a plaintiff seeking a specific performance might enter 
 into parol evidence to show that the defendant was to pay 
 the rent clear of taxes, no mention being made of taxes 
 in the agreement ; because it was an agreement executory 
 only, and as, in leases, there were always covenants re- 
 lating to taxes, the Master would inquire what the agree- 
 ment was as to taxes, and therefore the proof would not 
 be a variation of the agreement. And this extra-judicial 
 opinion appears to have been approved of by two en- 
 lightened Judges(«), one of whom(6) laid it down, that 
 parol evidence was admissible to prove collateral matters, 
 concerning which nothing was said in the agreement, as 
 who was to put the house in repair, or the like. 
 
 But notwithstanding these dicta, it has been expressly 
 decided, that parol evidence of even collateral matters, 
 such as the payment of taxes, &;c. which are of the 
 essence of the agreement, is inadmissible both at law and 
 
 [z) 3 Atk. 389, 390 ; but see 4 Bro. C. C. 518 ; 6 Ves. jun. 335. 
 n. 1 Scho. & Lef, Rep. 38. 
 
 (a) See 2 Blackst. 1250 ; 7 Yes. jun. 221. 
 (6) Mr. Justice Blackstone. 
 
 Rep. 262. Sessions v. Barjield, 2 Bay, 94. Jackson v. Sill, 11 Johns. 
 Rep. 201. 
 
 In Slackpole r. Arnold, it was decided that want of consideration in 
 a promissory note might be shown by parol. This seems prima facie 
 repugnant to the general rule respecting written contracts ; but upon 
 examination of the cases in which the evidence has Jbeen admitted it 
 will appear that they all rest upon fraud, or upon a failure of the con- 
 sideration, or upon some illegality in the transaction ; all of which may 
 be proved without explaining or varying the terms of (he contract. In 
 Bowers v. Ilurd, 10 Mass. 427, it is stated, that to a promissory note, 
 in which value is acknowledged to have been received, it cannot be ob- 
 jected in deference, between the original parties, that there was in fact 
 no consideration. But in subsequent cases, the same court have con- 
 sidered that opinion as untenable. Hill v. Buckrainster, 5 Pick. 391 ; 
 S. P. 6 ib. 427. 
 
 (*143)
 
 172 
 
 OF PAROL EVIDENCE. 
 
 in equity. Thus, in Richt;. Jackson(c), it appeared that 
 William Stiles and William Jackson entered into a treaty 
 for the lease of a house belonging to Stiles, and in a con- 
 versation between them on the subject, Jackson offered 
 80/. a year rent, and that he would pay all the taxes, 
 which Stiles agreed to accept. An agreement was drawn 
 up by Jackson, in his own hand-writing, in which no 
 notice was taken of taxes. Rich, who claimed under 
 Stiles, refused to execute a lease unless the rent was 
 made payable clear of taxes, and Jackson, the defendant, 
 who claimed under William Jackson, refused to accept 
 such a lease. Jackson having paid some money for land- 
 tax, brought an action in the Court of Common Pleas for 
 (*)the recovery of it, the plaintiff having refused to de- 
 duct it in the payment of the rent. The cause was tried 
 at Guildhall, before Lord Rosslyn, then Lord Chief Justice 
 of the Common Pleas. The defendant was suffered to 
 give parol evidence of the real agreement, and his Lord- 
 ship gave credit to the veracity of the witnesses, notwith- 
 standing which he rejected the evidence, and directed 
 a verdict to be given for Jackson, with costs ; and, upon 
 'SffSppfeatton to the ^Court^or6onTm6n Pleas, the Court 
 approved of the verdict, and refused a rule to show cause 
 why the same should not be set aside(89). 
 
 In this branch of the case, therefore, the point was 
 
 (c) 4 Bro. C. C. 614 ; 6 Ves. jun. 334, n. 
 
 (89) See Parhhust v. Van Cortlandt, 1 Johns. Ch. Rep. 273. S. C. 
 on appeal, 14 Johns. Rep. 15. Gilpins v. Consequa, 1 Peters' Rep. 
 85, 87. O'Hara v. Hall, 4 Dall. 340. Wolf v. Caroihers, 3 Serg. & 
 R^wle, 240. JVallace v. Baher, 1 Binn. 610. And see JSP Kinney v. 
 Leacock, 1 Serg. & Rawle, 27. Marshall v. Sjjrott, Addis. 361. 
 Bruce V. Barber, 3 Conn. Rep. 9. But the'nile of law, that all pre- 
 vious negotiations are merged in the written contract, applies only to the 
 parties to the deed. Strong v. Glascoic, 1 Cor. Law. Rep. 279. 
 Hawkins v. Hawkins, Id. 496. See also, Lexms v. Gray, 1 Mass. 
 Rep. 297. 
 (*144)
 
 OF PAROL EVIDENCE. 
 
 173 
 
 solemnly decided in a court of law, and the same deter- 
 mination was afterwards made upon the same case in 
 a court of equity. Rich being defeated at law, filed his 
 bill for a specific performance of the agreement, varied by 
 the parol evidence ,• and the cause came on to be heard 
 before Lord Rosslyn, then Lord Chancellor, who said, 
 that the prior conversations, and the manner of drawing 
 up the agreement by one party, and signing it by another, 
 would have no influence. The real question was, whether 
 in equity, any more than at law^, the evidence ought to be 
 admitted ; whether there is any distinction in a court of 
 equity, where a party comes to enforce a written agree- 
 ment by obtaining a more formal instrument, and to add, 
 in doing that, a term not expressed in the written agree- 
 ment, and of such a nature as to bear against the written 
 agreement. He had looked into all the cases, and could 
 not find that the Court had ever taken upon itself, in 
 executing a written agreement by a specific performance, 
 to add to it by any circumstance that parol evidence 
 could introduce. And he accordingly dismissed the bill, 
 but without costs. 
 
 Indeed Lord Rosslyn appears to have made a similar 
 (*)decision in a case prior to that of Rich v. Jackson. 
 The case to which I allude is Jordan v. Sawkins(J) ; 
 where a bill was filed for a specific performance of a lease, 
 and it was stated, that there was a memorandum annexed 
 to the original agreement, that the tenant(I) was to pay 
 the land-tax (which, it must be presumed, was not signed, 
 and was therefore only tantamount to a parol agreement). 
 The cause was heard before the Lords Commissioners 
 
 (d) Jordan v. Sawkins, 3 Bro. C. C. 388 ; 1 Ves. jun. 402 ; and 
 see O'Connor v. Spaight, 1 Scho. & Lef. 305 ; and see the cases infra, 
 as to the discharge of a parol agreement. 
 
 (I) In the Report, the name of the landlord is, by mistake, printed 
 for that of the tenant. 
 
 (*145)
 
 IY4 OF PAROL EVIDENCE. 
 
 Eyre, Ashhurst, and Wilson, who decreed a performance 
 of the contract with the variation, that it was to be at 
 a clear rent of 40 /. ivithoui deducting land-tax. The cause 
 was re-heard before Lord Rosslyn, who said, that if the 
 agreement had been carried into execution as it originally 
 stood, the landlord must have paid the land-tax. The 
 Court could not specifically perform an agreement with 
 a variation, and he therefore reversed the decree, and dis- 
 missed the bill. 
 
 As a term agreed upon by parol cannot be added to 
 a written agreement, by a parity of reason a written agree- 
 ment cannot be varied by parol(90). 
 
 This was decided by Lord Thurlow in a branch of the 
 last-mentioned case(e). It appeared that a lease was 
 agreed, by writing, to be granted of a house for twenty- 
 one years, to commence from the 21st of April 1791, and 
 that it was afterwards agreed by parol, that the lease 
 should commence on the 24th of June instead of the 
 21st of April. To a bill filed by the tenant for a specific 
 performance of the written agreement, varied by the parol 
 
 (e) See 7 Ves. jun. 133. 
 
 (90) See Stevens v. Cooper, 1 Johns. Ch. Rep. 425. JWTeer v. 
 Sheppurd, 1 Bay, 461. Dickerson v. Dickerson, 1 Car. Law Rep. 
 262. See also, Fleming v. Gilbert, 3 Johns. Rep. 528. Keating v. 
 Price, 1 Johns. Cas. 22. Hasbrouck v. Tappen, 15 Johns. Rep. 200. 
 Divight V. Pomeroy, 17 Mass. Rep. 303, 325. 
 
 An alteration or addition in a deed, without the consent of parties, 
 will render it void ; but if an erasure be made, as by striking out an old 
 obligor, and adding a new one, by consent of all parties, this dees not, 
 of itself, avoid (he deed : whether the alteration or erasure be made 
 2Jrior or subseciuent to the execution of the deed ; and such consent may 
 be proved by parol : And parol evidence will be let in to shew whether 
 an erasure or interlineation on the face of a deed, has been made under 
 such circumstances as the law will, or will not justify. Speake v. Unit- 
 ed States, 9 Cranch, 28, 37. LIVINGSTON, J., dissenting. Parol 
 evidence not admissible to shew an erasure or alteration in the entry- 
 book of the surveyor general. Kerr v. Porter, 1 Ten. Rep. 16.
 
 OF PAROL EVIDENCE. ]75 
 
 agreement, the statute of frauds was pleaded, and Lord 
 (*) Chancellor Thurlow held, that the different period of 
 commencing the lease made a material variation, as it 
 gave the estate from the ov^^ner for so many months long- 
 er, and therefore he allowed the plea. 
 
 The rule of the law is, nihil tarn conveniens est naturali 
 cequitati, unumquodque dissohi eo ligamine quo ligatum 
 est : and therefore, in general, as we have seen, an agree- 
 ment in writing cannot be controlled by averment of the 
 parties, as it would be dangerous to admit such nude aver- 
 ments against matter in writing(y). This was an imper- 
 ative rule, previously to the statute of frauds ; and the 
 statute required that " all agreements upon any contract or 
 sale of lands, &c. should be in writing." Now, as Lord 
 Hardwicke observed, an agreement to wave a purchase 
 contract, is as much an agreement concerning lands as 
 the original contract(^) ; notwithstanding which, it is 
 universally considered, that an agreement in writing con- 
 cerning land may be discharged^ although it cannot be 
 varied by parol(A^). And in a late case, where all the 
 authorities were mentioned, but in which it was not ne- 
 cessary to decide the point(«), the Master of the Rolls 
 appeared to consider that a written agreement might be 
 abandoned by parol(91). 
 
 (/) Countess of Rutland's case, 5 Co. 25 b ; Blemerhasset v. Pier- 
 son, 3 Lev. 234. 
 
 ig) 2 Eq. Ca. Abr. 33. 
 
 {h) 1 Yes. jun. 404 ; 4 Bro. C. C. 519 ; 6 Ves. jun. 337, n. ; 9 
 Ves. jun. 250 ; 3 Wooddes. 428, s. iv. ; Rob. on Stat, of Frauds, 89 ; 
 and Inge v, Lippingwell, 2 Dick. 469 ; but see Kaye v. Waghorn, 1 
 Taunt. 428. 
 
 («■) Price 1). Dyer, MS. Rolls ; S. C. 17 Ves. jun. 356,po»<. 
 
 (91) Where lands have been sold and conveyed, and the parties, 
 afterwards, agree by parol, to rescind the contract, and the conveyances 
 were given up in pursuance of such agreement, but by accident, the 
 
 (*146)
 
 176 
 
 OF PAROL EVIDENCE. 
 
 The first case on this head, is a short note in Vernon(A^), 
 where the precise point occurred, and the Lord Keeper 
 held, that the agreement might be discharged by parol, 
 (*)and therefore dismissed the bill, which was brought to 
 have the agreement executed in specie. The next case 
 is reported by Viner(/) : A. leased a house to B. for 
 eleven years, and was to allow 201. to be laid out in 
 repairs ; the agreement was reduced into writing, and 
 signed and sealed by both parties. B. repaired the 
 house, and finding it to take a much greater sum than 
 the 20/., told A. of it, and that he would nevertheless 
 go on and lay out more money if he would enlarge the 
 term to twenty-one years, or add fourteen, or as many as 
 B. should think fit. A. replied, that they would not fall 
 out about that, and afterwards declared that he would 
 enlarge the term, without mentioning the term in certain. 
 The question was, whether this new agreement, made by 
 parol, which varied from the written agreement, should 
 be carried into execution, notwithstanding the statute of 
 frauds. The Master of the Rolls said, that before the 
 statute, a written agreement could not be controlled by 
 a parol agreement, contrary to it, or altering it ; but this 
 
 {k) Gorman v. Salisbury, 1 Vern. 240. I could not discover any 
 trace of this cause in the Register's book. 
 (/) Anon. 5 Vin. 522, pi. 38 ; 4 Geo. 
 
 notes for the purchase money, were not given up ; it was held, in an 
 action on the notes, that parol evidence of the rescission of the con- 
 tract, was not admissible, at law. Sably v. Sandifie, 2 Rep. Con. Ct. 
 445. The same principle was recognized in Botsford and JMorehouse^ 
 4 Conn. Rep. 550. 
 
 See Stevens v. Cooper, 1 Johns. Ch. Rep. 429,430. The Chancel- 
 lor, in giving his opinion in this case, remarking upon the principle that 
 an agreement in writing concerning lands, may be discharged by parol, 
 says, that " the evidence in such cases is good only as a defence to a 
 bill for a specific performance ; and is totally inadmissible, at law or 
 equity, as a ground to compel a performance in specie." See also, 
 Botsford v. Burr, 2 Johns. Ch. Rep. 405. 
 
 ■(*147)
 
 OF PAROL EVrDENCE. 
 
 177 
 
 was a new agreement, and the laying out the money was 
 a part-performance on one part, and ought to be carried 
 into oxpcntion ; and built his decree on these cases : fust, 
 where a parol agreement was for a building lease, and 
 before it was reduced into writing, the lessee began to 
 build, and after differing on the terms of the lease, the 
 lessee brought a bill, and the lessor insisted on the statute 
 of frauds ; the Lord Keeper dismissed the bill, but the 
 plaintiff was relieved in Dom. Proc. : and the second 
 was a case in Lord Jefferies's time. 
 
 Then came the case of Buckhouse and Crossbj, before 
 Lord Hardwicke(m), where, to a bill filed by a purchaser 
 for a specific performance, the vendor insisted the con- 
 tract had been discharged by parol, and the case of 
 (*)Goman v. Salisbury was cited by his counsel, as an 
 authority in his favor. The Lord Chancellor, under the 
 circumstances, decreed for the plaintiff, with costs ; and 
 declared, that though he would not say that a contract 
 in writing would not be waved by parol, yet he should 
 expect, in such a case, very clear proof; and the proof, in 
 the present case, he thought very insufficient to discharge 
 a contract in writing ; and observed, that the statute of 
 frauds and perjuries requires that "all contracts and 
 agreements concerning land should be in writing." Now, 
 an agreement to wave a purchase contract is as much 
 an agreement concerning lands as the original contract. 
 However, he said, there was no occasion now to deter- 
 mine this point. 
 
 And, in another case. Lord Hardwicke is reported to 
 have said, that it was certain that an interest in land could 
 not be parted with, or waved by naked parol, without 
 writing ; yet articles might, by parol, be so far waved, 
 that if the party came into equity for a specific execution, 
 such parol waver would rebut the equity which the party 
 
 (wi) 2 Eq. Ca. Abr. 32, pi. 44 ; 10 Geo. II. 
 
 VOL. 1. 23 (*14S)
 
 178 
 
 OF PAROL EVIDENCE. 
 
 before had, and prevent the Court from executing them 
 specifically(w)(92J. 
 
 The case of Legal v. Miller(o), comes next in point of 
 time. The agreement was for taking a house at 32/. per 
 annum, and part of the agreement was, that the owner 
 should put the house in repair. It was afterwards dis- 
 covered not to be worth while barely to repair the house, 
 but better to pull it down ; and, therefore, without any 
 alteration in the written agreement, the house was pulled 
 down by consent of the tenant, apprised of the great 
 expense it would be to the landlord ; and an agreement 
 was made by parol only, on the part of the tenant, to add 
 (*)8/. per annum to the 32/. The tenant brought a bill 
 for specific performance, on the foot of the written agree- 
 ment, by which he was to pay only the 32/. rent. The 
 defendant, by his answer, set up the parol agreement. 
 Sir John Strange said, such evidence is frequently suf- 
 fered to be read, especially to rebut such an equity as 
 now insisted on by the bill : as where the agreement is 
 in part carried into execution, parol evidence is allowed 
 to prove that ; or where it is a hard agreement ; and the 
 Court may, therefore, decree against the ivritten agreement, 
 as in 1 Vern. 240, (Goman v. Salisbury) ; and the single 
 question being here, whether the Court should decree 
 a specific performance of the agreement the plaintiff 
 insists upon, and being satisfied, from the parol evidence, 
 that it should not, the Court must dismiss the bill. And 
 in the subsequent case of Pitcairne v. Ogbourne(/?), 
 Sir John Strange referred to this decision, and approved 
 of it. 
 
 (n) Bell V. Howard, 9 Mod. 302 ; and see Eaii of Anglesea v. An- 
 nesley, 4 Bro. P. C. 421. 
 (o) 2 Ves. 299. 
 ip) 2 Ves. 375. 
 
 (92) See Stevens v. Cooper, 1 Johns. Ch. Rh. Rep. 430. 
 (*149)
 
 OF PAROL EVIDENCE. 
 
 179 
 
 In the late case of Price v. Dyer(^), which has aheady 
 been mentioned, where a parol waver of a written agree- 
 ment was set up as a defence to a specific performance, 
 Sir William Grant was of opinion, 1st, that there was 
 not an abandonment of the agreement, but merely a 
 variation ; and 2d, that as the variation was without 
 consideration, and had not been acted upon, it was not 
 a good defence to the plaintiff's demand. His Honor, 
 after premising that the original written agreement was 
 binding, and had not, in his opinion, been waved, added, 
 that he inclined to think the effect of a clear abandon- 
 ment by parol, would be to discharge the written agree- 
 ment. But in the cases cited, the parol agreement put 
 an end to the transaction, and restored the parties to their 
 original situation. Here there was a mere variation. The 
 (*)question then was as to the variation. Variations act- 
 ed upon, as in Legal v. Miller, would be a bar ; that is, a 
 fraud. But his opinion was, that verbal variations were 
 not a sufficient bar where the situation of the parties, in 
 all other respects, remained unaltered. The defendant 
 had lost nothing ; would lose nothing. He had only 
 lost what he had gratuitously gained. A specific per- 
 formance of the original agreement was decreed, but 
 without costs. 
 
 I have thought it of importance to bring all the cases 
 which I have met with, on this point, fully before the 
 reader, who will not fail to perceive, that in every case, 
 except that in Viner, the party insisting upon the parol 
 agreement, was not requiring the aid of the Court, but 
 merely set up the agreement as a bar to a specific per- 
 formance ; and therefore, in strictness, these cases belong 
 to the class before discussed, where the Court will admit 
 the evidence to rebut the plaintiff's equity, although it 
 would be inadmissible as a ground for relief. In the 
 
 (9) MS. Rolls; S. C. 17 Yes. jiui. 356. 
 
 (*160)
 
 230 0^ PAROL EVIDENCE. 
 
 case in Viner, indeed, the person relying on the parol 
 agreement was plaintiff; but the new agreement was in 
 part performed by him, and the Master of the Rolls of 
 that day expressly founded his decree on that ground. 
 No case seems to go beyond that. In the case of Price 
 and Dyer, the parol agreement was not, under the cir- 
 cumstances, held to be a sufficient defence. 
 
 Whether an absolute parol discharge of a written 
 agreement, not followed by any other agreement upon 
 which the parties have acted, can be set up even as a 
 defence in equity, seems questionable. The result of the 
 authorities as to a parol variation, appears to be, 
 
 1st, That evidence of it is totally inadmissible at law. 
 
 2dly, That in equity the most unequivocal proof of it 
 will be expected. 
 
 3dly, That if it be proved to the satisfaction of the 
 (*)Court, and be such a variation as the Court will act 
 upon, yet it can only be used as a defence to a bill de- 
 manding a specific performance, and is inadmissible as a 
 ground to compel a specific performance, unless, 
 
 4thly, There has been such a part-performance of the 
 new parol agreement, as would enable the Court to grant 
 its aid in the case of an original independent agreement, 
 and then, in the view of equity, it is tantamount to a writ- 
 ten agreement. 
 
 In considering the point under discussion, the reader 
 will be careful not to confound the foregoing cases with 
 the case of Walker v. Constable(r). There the original 
 agreement was a parol agreement ; and the question was, 
 whether, being abandoned, parol evidence could be given 
 of it. Lord C. J. Eyre held, that the existence and the 
 terms of the agreement must be proved before it could be 
 proved to be abandoned, and upon that it was sufficient 
 
 (r) 2 Esp. 659 ; 1 Bos. & Pull. 306. See Adams v. Fairbain, 2 
 Stark. 277. 
 (*161)
 
 OP PAROL EVIDENCE. 
 
 181 
 
 to say, that being in ivriting(l) the instrument itself 
 must be produced, and parol evidence of it was inadmis- 
 sible. 
 
 II. The next branch of our subject, although the most 
 trite, is not perhaps, therefore, less difficult. Lord Chan- 
 cellor Bacon says(5), there are two sorts of ambiguities 
 of words, the one is ambiguitas patens, and the other 
 latens. Patens, he adds, is that which appears to be am- 
 biguous upon the deed or instrument ; latens is that which 
 seems certain, and without ambiguity, for any thing that 
 appears upon the instrument, but there is some collateral 
 matter out of the deed that breeds the ambiguity. 
 
 (*) A latent ambiguity may be assisted by parol evidence, 
 because the ambiguity being raised by parol, may fairly 
 be dissolved by the same means, according to the general 
 rule of law(93). Therefore, if, previously to the statute, 
 a man having two manors, both called Dale, had con- 
 veyed the manor of Dale to another, evidence might 
 
 («) Max. p. 82 ; Reg. 23. 
 
 (I) That is, in contemplation of law, for it is not deemed an agree- 
 ment unless reduced into writing. 
 
 (93) See Slackpoh v. Jlrnold, 11 Mass. Rep. 27. Cole v. fVcndell, 
 8 Johns. Rep. 90. 2d edit. Allen's Les. v. Lyons, MS. Rep. 1 Whart. 
 Dig. 238. Poiccll V. Biddle, 2 Dail. 70. Jackson v. Stanley, 10 
 Johns. Rep. 133. See Jackson v. Hart, 12 Johns. Rep. 77. and Jack- 
 son V. Goes, 13 Johns. Rep. 5J8. ; wherein the cases of Jackson and 
 Stanley and Jackson and Hart are reviewed. See Goddard v. Bulow, 
 1 Nott & M'Cord, 45. Elsivorth v. Buckmyer, 1 Nott & M'Cord, 
 431. Middleton v. Perry, 2 Bay, 539. 
 
 But parol evidence is not admissible to explain or contradict the plain 
 and obvious meaning of words in a deed. O'Harra v. Hall, 4 Dall. 
 340. Hamilton v. Caicood, 3 liar. & M'llen. 437. Paine v. JM'Inlier, 
 1 Mass. Rep. G9. See Leland v. Slone, 10 Mass. Rep. 459. Hunt 
 V. Mams, 7 Mass. Rep. 619. Ross v. JVorvell, 1 Wash. 14. See 
 Dimond's Les. v. Enock, Addis. 356. Eli v. Adams, 19 Johns. Rep. 
 313. 
 
 (*162)
 
 |g2 OF PAROL EVIDENCE. 
 
 have been given to prove which manor was intended to 
 pass(^), and such evidence is still admissible : this has been 
 repeatedly decided(w). So, on the same principle, parol 
 evidence is always received to show what is parcel or not 
 of the thing conveyed(:r)(94). And if an agreement re- 
 fer to a plan as an existing document upon which the con- 
 tract is founded, parol evidence is admissible for the pur- 
 pose of identifying the plan(?/). 
 
 In some cases a latent ambiguity may be fatal. Parol 
 evidence may be adduced to prove the ambiguity, when 
 none sufficiently satisfactory can be offered to explain 
 
 (f) 2 Ro. Abr. 676, pi. 11; and see Lord Cheney's case, 6 Rep. 
 68; Altham's case, 8 Rep. 165 a; and Harding r. Suffolk, 1 Cha. 
 Rep. 74. 
 
 (u) Jones V. Newman, 1 Blackst. 63 ; 3 Wils. 276 ; 2 Atk. 239, 
 240. 373 ; 1 Bro. C. C. 341. 
 
 {x) Quaintrell v. Wright, Bunb. 274 ; Longchamps v. Fawcett, 
 Peake's Ca. 71 ; Doe tj. Burt, 1 Term Rep. 701 ; Anon. 1 Str. 96; 
 but where there is property to satisfy the words of the will, it cannot be 
 shown by parol evidence that the testator meant to pass some not with- 
 in the description. See Doe v. Oxenden, 3 Taunt. 147. 
 
 (tj) Hodges V. Horsfall, 1 Russ. & Myl. 116. 
 
 (94) See Hatch v. Hatch, 2 Hayw. 32. White v. Eagan, 1 Bay, 
 247. Middleton v. Perry, 2 Bay, 639. 
 
 See Coutts v. Craig, 2 Hen. & Munf. 618. Doolittk v. Blahcley, 
 4 Day, 265. Snyder v. Snyder, 6 Binn. 483V In this case, it was 
 held, that parol evidence was inadmissible to shew, that a part of the 
 land granted, was excepted out of the grant. 
 
 Upon questions relating to the situation and boundary of lands convey- 
 ed, the decisions have been various ; in some of the states, the English 
 common law rule has been adopted, and in others not. See Loflen v. 
 Heath, 2 Hayw. 347. Mageehan v. Mams' Les. 2 Binn. 109. Baker 
 V. Seekright, 1 Hen. & Munf. 177. Francis v. Hazlerig, 1 Marsh. 
 Ken. Rep. 96. See Lawless v. Jones, Idi. 17. Helmy. Small, Hardin, 
 369. Middleton v. Perry, 2 Bay, 539. While v. Eagan, 1 Bay, 247. 
 As to conformity to the common law rule, see Jackson v. Bowen, I 
 Caines' Rep. 358. Hamilton v. Caivood, 3 Har. & M'Hen. 437. 
 Milling v. Crankfield, 1 M'Cord, 261.
 
 OF PAROL EVIDENCE. 
 
 183 
 
 it(z). And to render parol evidence admissible in these 
 cases, a clear latent ambiguity must be first shown. — Ev- 
 idence which merely raises a conjecture is insuffi- 
 cient(a). 
 
 But although a latent ambiguity may be aided by parol 
 evidence, yet a patent ambiguity cannot be aided by ex- 
 trinsic evidence, because that would in effect be to pass 
 (*)vvithout deed, what by the law can be passed by deed 
 only. Of this Lord Chancellor Bacon observes, infinite 
 cases might be put ; for it holdeth generally, that all am- 
 biguity of words, by the matter within the deed, and not 
 out of the deed, shall be helped by construction(95), or 
 in some cases by election, but never by averment, but 
 rather shall make the deed void for uncertainty(96). 
 
 In Mansell v. Price, personal estate was settled in trust 
 for Price the defendant, and Catherine his wife, for their 
 lives, and the life of the survivor of them, and then for 
 their issue, with a power to the wife to dispose of 1,500/., 
 part of the monies, to any persons she pleased. She ex- 
 ercised this power by giving the money to Sir Edward 
 Mansell, in trust to pay 1,000/. to A., when she should 
 attain twenty-one, or marry ; but if she died before 
 
 (z) Thomas v. Thomas, 6 Term Rep. 671. 
 
 (a) See Lord Walpole v. the Earl of Cholmondeley, 7 Term Rep. 
 138. 
 
 (95) Patent ambiguities can be removed only by a sound construc- 
 tion of the words of the deed. Slorer v. Freeman, 6 Mass. Rep. 435. 
 King V. King, 7 Mass. Rep. 496. Revei-e v. Leonard, I Mass. Rep. 
 91. Mumford v. Hallett, 1 Johns. Rep. 433. JMann v. Exrs. of 
 Mann, 1 Johns. Ch. Rep. 231. Jackson v. Sill, 11 Johns. Rep. 201. 
 M'Dermot v. U. S. Ins. Co. 3 Serg. & Rawle, 607. Duncan v. Dun- 
 can, 2 Yeates, 302. Benezet v. JSV Clenachan, cited in JWMina v. 
 Owen, 2 Dall. 173. Little v. Henderson, 2 Yeates, 295. Stith v. 
 Barnes, 1 Car. Law Rep. 491. Hamilton v, Cawood, 3 Har. & 
 M'Hen. 437. O'Harra v. Hall, 4 Dall. 340. Harris v. Dinkins, 4 
 Des. 60. Dupree v. McDonald, 4 Des. 212. 
 
 (96) See Rothinahler''s Admx. v. Myers, 4 Des. 216. 
 
 (*163)
 
 184 
 
 OF PAROL EVIDENCE. 
 
 twenty-one, or marriage, then it should be to such uses 
 as B. should appoint. And the other 500/. she directed 
 to be paid to C, in exactly the same terms as before. The 
 bill was filed by the guardian of A. and C, infants, to 
 have the money paid, and to be put out for them to have 
 the interest thereof immediately. For the defendant 
 Price, it was insisted that he was entitled to the interest 
 of 1,500/., until it should become payable. The first 
 question was, whether parol evidence could be admitted 
 to explain the intention of Catherine Price what should 
 become of the interest till the times of payment ; for if 
 that could be admitted, there was sufficient to prove 
 the husband should not have it. And the Master of the 
 Rolls was of opinion that such evidence could not be 
 read(6). 
 
 (*)So in Kelly v. Powlet(c), the question was, whether 
 plate passed under a bequest of household furniture. The 
 drawer of the will said, it was not intended ; but his evi- 
 dence was refused, and the plate was held to pass(97). 
 
 Again, in a case in the Exchequer(f/), it appeared that, 
 by an act of parliament, cast plate-glass was directed to be 
 squared into plates of certain dimensions. The question 
 was, whether certain plates were in the shape directed by 
 the act. The Attorney-general at the trial produced books 
 explaining the process and terms of art in the manufac- 
 ture, and the defendants offered evidence to prove the 
 
 (S) MS. T. Term, 8 & 9 Geo. II. ; and see Hart v. Durand, 8 
 Anstr. 684 ; Chamberlaine v. Chamberlaine, 2 Freem. 52 ; Ulrich v. 
 Ditchfield, MS. 2 Atk. 372, where the evidence was not received. 
 
 (c) 1 Bro. C. C. 476, cited ; Ambl. 605, reported, which I conceive 
 has overruled Pendleton v. Grant, 1 Eq. Ca. Abr. 230, pi. 2 ; 2 Vern. 
 517 ; and see 1 Bro. C. C. 350, 351 ; Seymour v. Rapier, Bunb. 28; 
 Doer. Bland, 11 East, 441. 
 
 (d) Attorney-general v. the Cast Plate-Glass Company, 1 Anstr. 39. 
 
 (97) See Mann v. Exrs. of Mann, 1 Johns. Ch. Rep. 231. See 
 also, 1 Yeates, 432. 1 Gallis. 173. 
 (*154)
 
 OF PAROL EVIDENXE. j OC 
 
 teclinical meaning in the trade of the word squarins; o^lass ; 
 tiie evidence was, liowever, refused, and a verdict found 
 against the defendants : and upon a motion for a new trial. 
 Lord Chief Baron Eyre said : In explaining an act of 
 parliament, it is impossible to contend that evidence should 
 be admitted, for that would be to make it a question of 
 fact, in place of a question of law(98). The judge is to 
 djrect the jury as to the point of law, and in doing so must 
 form his judgment of the meaning of the Legislature, in 
 the same manner as if it had come before him on demurrer, 
 when no evidence ^\ ould be admitted. Yet on a demurrer 
 a judge may well inform himself from dictionaries or 
 books, on the particular subject concerning the meaning 
 of any word. If he does so at nisi priiis, and shows them 
 to the jury, they are not to be considered as evidence, but 
 only as the grounds on which the judge has formed his 
 opinion, as if he were to cite any authorities for the point 
 of law he lays down. 
 
 (*)So parol evidence is inadmissible to restrain the legal 
 operation of general words in an instrument. Therefore 
 it cannot be admitted to prove, that a particular estate 
 was not intended to pass under general words sufficient 
 to comprise it(99). 
 
 (98) In tho case of JVrKeen v. Delancxfs I.es. 6 Cianch, 22, 32., 
 tlie Supreme Court of the U. S. considered themselves bound to put the 
 same construction upon the words of an act of assembly as had been 
 uniformly given by the state courts ; but if the construction were to be 
 given for the first time, they would have construed the statute difTercnlly. 
 See Sleght v. Ilarishorn, 2 Johns. Rep. 531. 13ut whenever a ques- 
 tion arises as to the construction of words, qua words, parol evidence 
 cannot be admitted to explain them. J\'V Dermol v. U. S. Ins. Co. 3 
 Serg. & Rawle, G09. IJohncs v. Simons, '3 Des. 149. Parol evidence 
 cannot be admitted to contradict the common meaning or legal import 
 of plain words in a will. Sheltoii v. Shcllon, 1 ^N^ish. 53. 
 
 (99) See Stith v. Barnes, 1 Car. Law Rep. 491. Nor can (he 
 meaning and operation of an instrument in writing, bo extended, or en- 
 larged beyond (he plain and obvious impoit of the woids used, so as to 
 
 VOL. I. 24 (*156)
 
 186 
 
 OF PAROL EVIDENCE. 
 
 Thus in Davis?;. Thomas(e), a husband and wife being 
 seized of settled estates in the county of Pembroke, bought 
 an estate in the same county, called Rigman Hill, which 
 was conveyed to them, and the survivor in fee. The 
 husband having prevailed on the wife to join with him 
 in suffering a recovery of the settled estates, in order to 
 enable him to mortgage them, gave the attorney em- 
 ployed to suffer the recovery a particular description pf 
 the settled estates, which did not comprise Rigman Hill ; 
 and it clearly appeared from several circumstances, that 
 he had not any intention to comprise that estate, the title- 
 deeds of which were in his wife's custody. The attorney, 
 fearful of not comprising the whole estate, and not know- 
 ing that Rigman Hill had been purchased, added general 
 words sufficient to comprise that estate. The recovery 
 was suffered to the use of the husband in fee, who after- 
 wards mortgaged the estate by the same description. The 
 husband by his will gave all his estates to his wife for life. 
 She survived him, and after her death the heir at law of 
 the husband brought an ejectment against the persons 
 claiming Rigman Hill, under the wife, which came on to 
 be tried at the April Great Sessions for Pembrokeshire, in 
 1756. Parol evidence was offered by the defendant, to 
 show that it was not intended to comprise Rigman Hill in 
 the recovery and mortgage ; but it was refused, and the 
 plaintiff had a verdict. 
 
 So in Shelling v. Farmer (y*), where to a release in 
 
 (e) Reg. Lib. 1757, fol. 33, 34. See Thomas i;. Davis, 1 Dick, 
 301, ei infra. 
 
 (/) 1 Str. 646. See Strode v. Lady Falkland, 2 Vein. 621 ; 3 
 Cha. Rep. 90 ; and Goodinge v. Goodinge, 1 Ves. 231. 
 
 include other objects ^jot expressed in the writing itself: Thus, where 
 receipts were given by the heirs of an estate, to the administrator, for 
 their shares of the estate, parol evidence cannot be admitted (o shew, 
 that it was the intention of the parties to release their interest in the 
 real estate ; especially, where the money received was greatly inade- 
 quate to their shares. Harris v. DinkinSf 4 Des. 60.
 
 OF PAROL EVIDENCE. j o>j 
 
 (*)pursuance of an award, the plaintiff would have called 
 the arbitrators to prove that they refused to take into con- 
 sideration a particular fact, although the award and re- 
 lease contained general words sufficient to take in all. 
 Ejre, C. J. would not suffer any evidence to be given to 
 contradict the dced(lOO). 
 
 And in the recent case of Butcher v. Butcher(,^) gen- 
 eral ivords in a release were held not to extend to a cer- 
 tain bond of indemnity : and Lord Chief Justice Mans- 
 field, at Guildhall, refused to admit parol evidence to show 
 the intention of the releasor to release the bond(lOl). 
 And upon a motion for a new trial, the Court of Common 
 Pleas intimated a strong opinion, that no evidence could 
 be admissible to explain the release, since the doubt, if 
 any, was ambiguitas patens ; and in consequence of this 
 intimation the counsel for the plaintiff declined arguing 
 the case. 
 
 But, as we shall presently see, the effect of general 
 words may be restrained in a court of equity, on the 
 ground of mistake, where it is satisfactorily proved. 
 
 It still remains to observe, that courts both of law and 
 equity constantly advert to the situation of the parties, 
 &c. in order to enable them to construe ambiguous or 
 ill-penned instruments, although parol evidence of the 
 intention of the parties could not be received, and this 
 has been sanctioned by a leading case in the House of 
 Lords(/0(102). 
 
 (^) 1 New Rep. 113. 
 
 (/t) Sir John Eden v. the Earl of Bute, 7 Bro. P. C. 745. Sec 
 Countess of Shelburne r. the Earl of Inchiquin, 1 Bro. C. C. 338. 
 
 (100) See De Long v. Slanton, 9 Johns. Rep. 38. Munroe v. 
 Maire^ 2 Caines' Rep. 320. Sessions v. Barjield, 2 Bay, 94. 
 
 (101) See Parsons v. Hooker, 3 Johns. Rep. 68. 
 
 (102) See Ambler v. JS^orton, 4 Hen. & Munf. 23, Kennon v. 
 
 JWRoberts, 1 Wash. 102. She^iner v. Shermer's Exrs. 1 Wash. 272. 
 
 Dabncij v. Green, 4 Hen. & Munf. 101. Gay v. Jlunl, 1 3Iiuph. 141. 
 
 (*156)
 
 -I go OF PAROL EVIDENCE. 
 
 In one case(z), where it was doubtful whether a cove- 
 nant for renewal extended to a perpetual renewal, and the 
 parties had renewed four times successively under the 
 covenant, Lord Mansfield and the other Judges of the 
 (*)King's Bench held, that the parties themselves had put 
 a construction upon the covenant, and were therefore 
 bound bj it. Lord Alvanley, who was in the cause, said, 
 when Master of the Rolls, that he was never more 
 amazed than at this decision, and that Mr. Justice Wilson, 
 who argued with him, was astonished at \t(j) ; and his 
 Lordship more than once expressed his marked dis- 
 approbation of this doctrine(A;). Lord Eldon(/), and 
 Sir Wm. Grant(?/i), have both also dissented from it ; 
 and Kord C. J. Mansfield, in a late case, observed, that it 
 was a case which had been impeached upon all occa- 
 sions(w). And it appears to be now clearly settled, that 
 in the construction of an agreement or deed, the acts of 
 the parties cannot be taken into consideration(o)(103). 
 
 Where, however, the words of an ancient siatute or "in- 
 strument are doubtful, contemporaneous usage, although it 
 
 (i) Cook V. Booth, Cowp. 819 ; and see Blackst. 1249 ; 1 New 
 Rep. 42. See Peake on Evid. eh. 2. 
 
 ( j) Baynham v. Guy's Hospital, 3 Ves. 295 ; and see 2 Ves. jun. 
 448. 
 
 (k) See Eaton v. Lyon, 3 Ves. jun. 690. 
 
 (/) See Iggulden v. May, 9 Ves. jun. 326. 
 
 (m) See Moore v. Foley, 6 Ves. jun. 232. 
 
 (») See 2 New Rep. 452. 
 
 (o) See Clifton v. Walmsley, 5 Term Rep. 664 ; and see Iggulden 
 V. May, 7 East, 237. 
 
 Powell V. Bicldle, 2 Dall. 72. Possession of land nnay be resorted to, 
 in order to explain the intention of parties, where the words of the 
 deed are equivocal. Livingston v. Ten Broeck, 16 Johns. Rep. 14. 
 Per SPENCER, J. 
 
 (103) See Souverbije v. Jlrden, 1 Johns. Ch. Rep. 240. Revere v. 
 Leonard, 1 Blass. Rep. 93 ; and see Cortehjou v. Van Brundt, 2 Johns. 
 Rep. 357. 
 
 (^57) 
 
 Mi
 
 OF PAROL EVIDENCE. 
 
 189 
 
 cannot overturn the clear words of the instrument, will be 
 admitted to explain it(104) ; for jus et norma loquendi is 
 governed by usage, and the meaning of things spoken or 
 written must be as it hath constantly been received to be 
 by common acceptation Q;). This has been determined in 
 many cases, and such evidence accordingly received(<y). 
 And in a late case on this subject. Lord Ellenborough 
 (*)said, it was in constant practice at nisi prius to receive 
 evidence of usage to explain doubtful words in old instru- 
 ments ; and it would be difficult to show any just ground 
 of distinction between the information which a Jud^e 
 might receive to aid his judgment in bank and at nisi 
 ]}rlus(r). 
 
 III. The last division of our subject relates to the juris- 
 diction of equity, in correcting mistakes and fraudulent 
 omissions in agreements and deeds(I)(105). 
 
 (p) Sheppaid v. Gosnold, Vaiigh. 169. 
 
 (9) Rex V. Varlo, Cowp. 246 ; Gape v. Handley, 3 Term Rep. 228, 
 n. ; Blankley v. Winstanley, 3 Term Rep. 279 ; Rex v. Bellringer, 4 
 Term Rep. 810 ; Rex v. Miller, 6 Term Rep. 268 ; and see Attorney- 
 general I'. Parker, 2 Atk. 676 ; Attorney-general v. Forster, 10 Ves. 
 jun. 335 ; Kitchin 1;. Bartch, 7 East, 53 ; Bailiffs, &c. of Tewkesbury 
 V. Bricknell, 2 Taunt. 120. 
 
 ()•) Rex r. Osbourne, 4 East, 327 ; and see Stammers v. Dixon, 7 
 East, 200. 
 
 (I) Even at law the palpable mistake of a word will not defeat the 
 intention of the parties. In a case in the Common Pleas, where the 
 condition of a bond was, that it should be void if the obligor did not 
 pay ; and performance being pleaded on the ground of literal expression, 
 
 (104) See Livingston v. Ten Broecl; 16 Johns. Rep. 14. Evi- 
 dence of usage is not admissible to explain the language of a deed not 
 ambiguous or equivocal. Cortehjou v. Van Brimdt, 2 Johns. Rep, 357. 
 
 (105) It is well settled, that courts of equity will relieve against 
 mistakes in agreements. IViscv v. Blackleij, 1 Johns. Ch. Rep. 607 
 Gillespie V. JV/ooM, 2 Johns. Ch. Rep. 585. Kcissclbrackv. Livinnston^ 
 4 Johns. Ch. Rep. 144. Barndollar v. Tate, 1 Serg. & Rawle, 160. 
 
 (*168)
 
 190 
 
 OF PAROL EVIDENCE. 
 
 In Heiikle v. the Royal Exchange Assurance Office(5), 
 Lord Hardwicke said, that no doubt but equity had juris- 
 diction to relieve in respect of a plain mistake in contracts 
 in writing, as w^ell as against frauds in contracts ; so 
 that if reduced into writing contrary to the intention of 
 the parties, on proper proof that would be rectified ; he 
 thought, however, that in these cases there should be the 
 strongest proof possible. In a case which was much 
 agitated before Lord Thurlow, he laid down the rule with 
 great latitude, that if a mistake appears, it is as much to 
 be rectified as fraud (^). So in another case before the 
 (*)same Chancellor, he said that he thought it impossible 
 to refuse, as incompetent, evidence which went to prove 
 that the words taken down were contrary to the concur- 
 rent intention of all parties. To be sure, he added, it 
 
 {s) 1 Ves. 317. 
 
 {t) Taylor v. Radd, 6 Ves. jun. 595, cited. 
 
 the Court held the plea bad. Anon. Dougl. 384, cited, 2d edition. See 
 1 Dow, 147. It seems clearly settled, that words evidently omitted in 
 a will by mistake may be supplied, both at law and in equity, Tollett 
 V. Tollett, Ambl. 194 ; Corytont). Hellier, 2 Bur. 923, cited ; and Doe 
 V. Micklem, 6 East, 486 ; see Lane v. Goudge, 9 Ves. jun. 225 ; Hel- 
 lish V. Mellish, and Phillips v. Chamberlain, 4 Ves. jun. 45, 51 ; but 
 however evident the mistake may be, the words will not be supplied 
 if the testator's manifest intention would be defeated by the insertion of 
 them. Chapman v. Brown, 3 Burr. 1626. See 2 Ves. jun. 365. 
 
 Smiih V. Williams, 1 Murph. 426. Middleton v. Perrij, 2 Bay, 639. 
 Wliite V. Eagan, 1 Bay, 247. Geer v. JVhids, 4 Des. 85. Wash- 
 burn V. JSlerrills, 1 Day, 139. Peters v. Goodrich, 2 Conn. Rep. 146. 
 JVlead V. Johnson, 2 Conn. Rep. 592. Argenbright v. Campbell, 3 
 Hen. & iMunf. 144. In this case, a mistake in one writing was cor- 
 rected by another, to which it referred. In Christ v. Diffebach, 1 Serg. 
 & Rawle, 465., TILGHMAN, Ch. J. said, " It may be laid down as 
 settled law, that parol evidence is admissible in cases of fraud and of 
 plain mistake in drawing a writing." 
 (*169)
 
 OF PAROL EVIDENCE. 
 
 191 
 
 must be strong, irrefragable evidence, but he did not think 
 he could reject it as incompetent(M)(106). 
 
 Lord Eldon, observing upon these dicta, said, that Lord 
 Thurlovv seemed to saj that the proof must satisfy the 
 Court what was the concurrent intention of all parties ; 
 and his Lordship added, it must never be forgot to ivhat 
 extent the defendant, one of the parties, admits or denies 
 the agreement(\01). In the case before Lord Eldon(:r), 
 a specific performance of an agreement was sought, with 
 a variation attempted to be introduced by parol, on the 
 ground of mistake and surprise, which was positively de- 
 nied by the defendant. And his Lordship said, that he 
 would not say, that upon the evidence without the answer, 
 he should not have had so much doubt whether he ou^ht 
 not to rectify the agreement, as to take more time to con- 
 sider whether the bill should be dismissed ; but as the 
 agreement was to be considered with reference to the 
 answer by which he had positively denied it, his Lordship 
 dismissed the bill, but without costs(108). 
 
 (m) Countess of Shelburne r.' the Earl of Inchiquin, 1 Bro. C. C. 
 338 ; and see Cock v. Richards, 10 Yes. jun. 441. 
 
 (x) Marquis of Townshend v. Stangroom, 6 Yes. jun. 328. 
 
 (106) See Gillespie v. J\Ioon, ut supra. Lyman v. United Ins.' Co. 
 2 Johns. Ch. Rep. 630. Souverbye v. Arden, 1 Johns. Ch. Rep. 240, 
 252. Geinian's Exrs. r. Beardsley, 2 Johns. Ch. Rep. 274. Dupree 
 V. M' Donald, 4 Des. 210, 211. 
 
 (107) In Gillespie and JMoon, ut supra, it was held, that parol evi- 
 dence was admissible to shew a mistake, although it be denied in the 
 answer ; and such evidence is to be received, as well, where the plain- 
 tifi' seeks relief on the ground of the mistake, as where the defendant 
 sets it up as a defence. As to the efficiency of an answer denying an 
 allegation in the bill, and the evidence necessary to outweigh the answer, 
 see Zilstra v. Keilli, 2 Des. 140. Sec also, Lyman v. United Ins. Co. 
 ut supra, and Gillespie v. J\Ioon, 2 Johns. Ch. Rep. 593. Pringle v. 
 Samuel, 1 Litt. 43. 
 
 (108) Sec Lyman v. United Ins. Co. 2 Johns. Ch. Rep. 630. 
 
 In Gillespie v Moon, 2 J. Ch. R. 585, where the bill was brought
 
 192 
 
 OF PAROL EVIDENCE. 
 
 Lord Eldou's decision precisely accords with Lord 
 Thurlovv's opinion, which he rightly construed. For in 
 
 to rectify a mist<ake, in the conveyance to the defendant, which, by an 
 error in the description of the land, conveyed the whole lot, or 250 
 acres, instead of 200 acres parcel of the same. The mistake was de- 
 nied in the answer ; and it was objected that parol evidence of the mis- 
 take was not admissible, in order to explain the language of the deed, 
 and, especially in opposition to the answer of the defendant. The 
 Chancellor, however, admitted the evidence. " The cases, he remark- 
 ed, concur in the strictness and difficulty of the proof, but still they all 
 admit it to be competent, and the only question is, does it satisfy the 
 minds of the Court? Lord Hardwicke said, it must be proper proof, 
 and the strongest proof possible ; and Lord Thurlow, that it must be 
 strong, irrefragable proof; and, he said, the difficulty of the proof was 
 so great, that there was no instance of its prevailing against a party in- 
 sisting that there is no mistake. We are now considering the question 
 of the competency, and not of the amount of the parol proof, and it ap- 
 pears to be the steady language of the English Chancery, for the last 
 70 years, and of all the compilers of the doctrines of that court, that 
 a party may be admitted to show, a mistake, as well as fraud, in the 
 execution of a deed or other writing. 
 
 Application of the principle. On bills for a specific performance of 
 an agreement in writing, the defendant has frequently been admitted to 
 show, by parol proof, a mistake in such agreement, and, by that means, 
 to destroy the equity of the bill. The relief on such bills is said to 
 rest in discretion, and if the defendant can show surprise or mistake, it 
 makes the special performance of such an agreement unjust. There is 
 another class of cases in which the object of the parol proof is to cor- 
 rect mistakes in bonds, deeds of settlements, mortgages, and, generally, 
 in all contracts and agreements, and where the proof is introduced to 
 aid the plaintiff in his bill, as well as to aid the defendant in his defence. 
 
 Whether such proof be admissible on the part of a plaintiff who 
 seeks specific performance of an agreement in writing, and at the same 
 time seeks to vary it by parol proof, has been made a question. Lord 
 Hardwicke in Jones v. Statham, 3 Atk. 388, seemed to think it might 
 be done ; but such proof was rejected by the master of the Rolls in 
 Wollam r. Hearn, 7 Ves. 211. and again in Higginson v. Clowes, 15 lb. 
 516 ; and Lord Redesdale said, in Clinan v. Cooke, 1 Scho. & Lef. 39, 
 that he could find no decision in which a plaintiff had been permitted to 
 show an omission in a written agreement, by mistake-or fraud, he must 
 be understood to refer to cases of bills for a specific performance of an 
 agreement, which was the case then before him. There are numerous
 
 OF PAROL EVIDENCE. | Q^ 
 
 Lord Irnhani i". Child(?/), it was observed by Lord Thur- 
 low, that if a mistake be admitted, the Court would not 
 
 (y) 1 Bro. C. G. 92 ; and see Hare v. Shearwood, 3 Bro. C. C. 168 ; 
 1 Ves. jun. 241 ; and Haynes v. Hare, 1 Hen. Blackst. 659. 
 
 instances in which the plaintiff has cWiwed and obtained relief, by show- 
 ing a mistake in the agreement ; and there would be a most deplorable 
 failure of justice, if the mistakes could only be shown and corrected when 
 set up by a defendant to rebut an equity. The cases of Randal v. Ran- 
 dal, 2 P.Wms. 464 ; Rogers v. Earl, Dickens, 294, and of Barstow v. 
 Kilvington, 5 Ves. 593, were bills filed to rectify mistakes in settlements ; 
 and in all of them proof aliunde was admitted, though the admission 
 was resisted ; and, in two of the cases by the defendant, who claimed 
 as heir against the mistake. 
 
 It has been said, that there was no instance of a mistake, corrected 
 in favor of a plaintiff, against the answer of the defendant, denying the 
 fact of mistake. But I do not understand any of the dicta on this 
 point to mean, that the answer, denying the mistake, shuts out the parol 
 proof, and renders relief unattainable, however strong that proof may be. 
 The observations of Lord Eldon in The Marquis of Townsend v. 
 Stangroom, certainly imply no more, than that the answer is entitled to 
 weight, in opposition to the parol proof; but it certainly can be over- 
 come by such proof. In that very case, the answer denied the mistake, 
 yet parol proof was held admissible. Lord Thurlow said, that there 
 was so much difficulty in establishing the mistake, to the entire satis- 
 faction of the court, that it liad never prevailed against the answer deny- 
 ing the mistake. But, as I read the case of Pitcairn v. Ogbourne, 2 
 Ves. 375, before Sir John Strange, the bill was to be relieved against an 
 annuity bond, and to reduce the sum according to the original under- 
 standing and agreement of the parlies. Parol proof was admitted ; 
 and relief was not granted upon other and distinct grounds, no way con- 
 nected with the question, as to the competency and effect of the proof. 
 
 It is the settled law of this court, as was shown in the case of Boyd 
 V. M'Lean, 1 J. Ch. R. 582, that a resulting tru^^t may be established 
 by parol proof, in opposition to the deed, and in opposition to the an- 
 swer denying the trust. There is no reason why the answer should 
 have greater effect in this than in that case, and there would be manifest 
 inconsistency in the doctrines of the court, if such a distinction existed. 
 The case of Marks r. Pell, 1 ib. 598, 9, admitted, that parol proof of 
 mistakes was competent ; and it was held not to be ?nfficient, in that 
 case, because it consistt-d of naked confessions of a party, made seven- 
 teen years after peaceable posEession, under a deed. 'J he confessions 
 VOL. I. 25
 
 194 
 
 OF PAROL EVIDENCE. 
 
 overturn the rule of equity by varying the deed ; but it 
 would be an equity dehors the deed. Then it should be 
 
 also, in that case, were of a negative kind, and deduced from tacit ac- 
 quiescence ; the party who made them was dead, and the possession 
 had been, for 30 years, under the deed, and there were no corroborating 
 circumstances in aid of the confessions. 
 
 Washburn v. Merrills, 1 Day's Cas. in Error, 139, is a strong case on 
 the subject. A mortgagor by mistake, made an absolute deed ; and the 
 mortgagee got into possession, sold t© a purchaser, by a deed with co- 
 venants of warranty. A purchaser under the mortgagor filed his bill, 
 against the purchaser, under the mortgagee to redeem. The answer 
 set up the statute of frauds as a defence ; and on the trial, parol proof 
 of the mistake was offered by the plaintiff and admitted, and the deed 
 established, and a right of redemption decreed. This decree was unan- 
 imously confirmed in the Court of Errors. 
 
 In the case of Comstock v. Hadlyme, 8 Conn. 854, where the ques- 
 tion arose whether the declarations of the devisor, made about the time 
 of executing her will, tending to shew that she was unduly influenced, 
 were admissible in evidence on a trial of the probate of the will : held, 
 that they were only admissible for the purpose of showing the state of 
 mind of the devisor. Williams, J. " If it was claimed, that those de- 
 clarations were part of the res gesia, the time when made should have 
 been precisely stated ; about the time is quite too indefinite : and if her 
 declarations were not a part of the res gesta, I know not upon what prin- 
 ciple they can be introduced as evidence of facts. Is a will or deed, 
 valid upon the face of it, to be destroyed, or in any way affected, by 
 the declarations of the devisor or grantor 1 Some strong authority is 
 necessary to support such a proposition. In the case of a deed, it 
 would not be claimed. A will, to be sure, is ambulatory ; and nothing 
 vests, during the life of the devisor. Still, hoM'ever, it can be altered 
 or revoked only in a legal manner. In Nelson v. Oldfield, 2 Vern. 76. 
 evidence of what the testator said, to prove duress, was admitted ; but 
 no objection appears to have been made, and the Court said, the legatee 
 had her probate, and might make what use she could of it, but a Court 
 of Chancery would not aid her. In Jackson v. Kniffen, 2 Johns. R. 
 31. the Ch. says : " To permit wills to be defeated by the parol decla- 
 rations of the testator, appears to me repugnant to the very genius and 
 spirit of the statute, and not to be allowed." And in Smith v. Fenner, 
 1 Gall. 172. it was held, that the declaration<3 before and at the execu- 
 tion of the will, were admissible, but none made after, unless so near 
 the time of the execution as to be a part of the res gesta, or necessarily 
 connected with it. And in Stevens v. Vancleve, 4 Wash. C. C. R.
 
 OF PAROL EVIDENCE. 
 
 195 
 
 proved as much to the satisfaction of the Court, as if it 
 were (*)admitted : " The difficulty of this is so great, 
 
 265. Washington, J. says, " The declarations of a party to a deed or 
 will, whether previous or subsequent to its execution, are nothing more 
 than hearsay evidence ; and nothing could be more dangerous than the 
 admission of it, to control the construction of the instrument, or to sup- 
 port or destroy its validity." 
 
 In Comstock v. Haldyme, the question was presented whether a mis- 
 take in drafting a will, will render it void. The mistake consisted in 
 omitting to insert in the will according to the direction of the testatrix 
 a legacy to her grandchildren. The court held that the evidence was 
 not admissible. Williams, J. observed " The statute, when it required 
 all wills to be in writing, signed by the testator and attested by witnesses, 
 certainly intended, that the evidence, and the whole evidence, of the 
 disposition of property by will, should be the will itself; ,that the evi- 
 dence of the intent of the devisor should be derived from the writing, 
 signed by him and solemnly attested ; otherwise, innumerable would be 
 the cases, where evidence of mistake would be claimed and proved. 
 
 It has always been decided, that parol testimony could not be admit- 
 ted to prove, that the devisor intended to give a different estate from 
 what the will expressed. Chappel v. Avery, 6 Conn. 34 ; Farrer v. 
 Ayres, 5 Pick. 407. It is a sacred rule of property not to be departed 
 from. Goodtitle v. Edmonds, 7 Term 635, 640. Richards v. Dutch, 
 8 Mass. 506, 515. And if it is settled, that you cannot, by parol proof, 
 alter the legal import of the terms used by the scrivener, such a will 
 must either be void, or convey a different estate fr^m the one intended. 
 It is not void. Doug. 763 ; 1 B. & B. 261. n. Cowp, 660. 
 
 In contracts, mistakes have, indeed, been rectified, in a court of 
 Chancery, but no case is recollected, where they have been holden void, 
 on account of a mistake. In Phillips r. Chamberlaine, 4 Yes. jun. 61, 
 57. where an intention was expressed to give a legacy to the Humane 
 Society, but no sum was inserted, the will was held not to be void. 
 And it would seem, that in this case, if any remedy existed, it would be 
 one that would not destroy the whole will, but one which would correct 
 the mistake, and make it what it ought to be. That has been attempted, 
 in a recent case ; and it was decided, that parol testimony could not be 
 admitted to prove the mistake. It would be to make a will by witnesses, 
 and not by writing ; to make a will any thing. Avery v. Chappel, 6 
 Conn. 270, 275. And if such evidence cannot be admitted, in Chan- 
 cery, to prove a mistake in a will, where is the principle, or where the 
 authority, that such evidence can be admitted to render the will void ] 
 Courts of law and chancery proceed upon the same principle as to ad- 
 
 (*160)
 
 196 
 
 OF PAROL EVIDENCE. 
 
 that there is no instance of its prevailing against a 'party 
 
 insisting there was no mistake.''^ 
 
 mitting parol testimony ; and it is certainly a novel idea, that courts of 
 chancery are less liberal, on that subject, than courts of law. I think, 
 then, it follows, that if courts of chancery cannot admit such evidence 
 to prove a mistake, which they might correct, courts of law cannot ad- 
 mit it to prove a mistake to set aside the will. The danger arising 
 from the admission of the proof is the same in both cases ; and if the 
 rules of law would allow that proof, it would be congenial to principle, 
 and more likely to effectuate the intent of the- devisor, to correct (he 
 mistake, than to make void the whole instrument. And if the former 
 cannot be done, much less can the latter. And the fact that no case is 
 found since the statute 29 Car. 11. is strong, if not conclusive evidence, 
 that such has been the construction. 
 
 In Reading v. Weston, 8 Conn. 117, it was decided that parol evi- 
 dence was not admissible to prove an absolute deed to be a deed on 
 condition. Flint v. Sheldon, 13 Mass. 443. decided, that an absolute 
 deed of land cannot be varied, by parol evidence, shewing that it was 
 for the loan and repayment of a sum of money. But it has often been 
 decided in Chancery, that parol evidence is admissible to shew, that an 
 absolute deed was intended as a mortgage, and that a defeasance was 
 omitted through fraud or mistake. Hence, a deed absolute on the face 
 of it, and though registered as a deed, will in Chancery be held valid 
 and effectual as a mortgage, as between the parties, if it was intended 
 by them to be merely a security for a debt, although the defeasance 
 was by an agreement resting in parol. Washburn v. Merrills, 1 Day 
 139 ; Strong and al v. Stewart, 4 J. Ch. R. 417 ; Marks & al v. Pell, 
 1 ib. 594 ; Clark v. Henry, 2 Cowen, 323 ; Slee v. Manhattan Co. 60, 
 1 Paige 48. Chancery interposes, because a court of law does not af- 
 ford a remedy. The rule in the courts of law, is, that the written in- 
 strument, contains the true agreement of the parties, and that the writing 
 furnishes better evidence of their intention than any that can be suppli- 
 ed by parol. But in equity, relief may be had against any deed or con- 
 tract founded in mistake or fraud. See cases supra. 
 
 Though it is the province of a Court of Chancery to relieve against 
 fraud, accident and mistake, it must be a mistake in fact and not a mis- 
 take in law. Thus, in Wheaton v. Wheaton, 9 Conn. 96. which was 
 a bill in chancery, which alleged that the writings were drawn without 
 the scrivener's being informed what the agreement between the parties 
 was. Nor did the plaintiff" pretend, " that the note was executed by 
 him under mistake in any one matter of fact. It is simply, that 
 the plaintiff ignorantly supposed a note, payable, by Ihe terras of it, in
 
 OF PAROL EVIDENCE. |97 
 
 Where the Court cannot satisfy itself of the fact, an 
 issue may be directed to try the question. Thus, in" the 
 case of the South Sea Company v. D'01iff(2), D'Oliff 
 agreed not to carry goods under certain circumstances ; 
 and if information was given in two months after return 
 home that he had done so, he was to pay certain stated 
 damages. The instrument was not drawn up until on 
 board the ship, and in a great hurry, and executed there 
 by D'OlifT; who when he got out to sea, and read it over, 
 found it was six months instead of two ; and brought a 
 bill to be relieved against that variation in the instrument, 
 the company having brought an action on it. Lord King 
 sent it to an issue ; it was tried on a question, whether it 
 was the original agreement it should be two instead of 
 six months. A verdict was given in favor of the plaintiff, 
 that the agreement was designed to be in two, and in con- 
 sequence of that, Lord Talbot made a decree to relieve 
 the plaintiff against any difficulty by the variation. 
 
 (2) 2 Yes. 377; 5 Ves. jun. 601, cited; and see Pember v. Math- 
 ers, 1 Bio. C. C. 52. * 
 
 three years, to be, in law, a note payable at (he death of the obligee ; 
 and (hen not actually to be paid, but to be delivered up : And to 
 show this mistake, said Bissel, J. we are asked to let in parol evi- 
 dence. The court held clearly, that the evidence was not admis- 
 sible. After citing Hunt v. Rousmanier, 8 Wheat. 174, and 1 
 Pet. U. S. R. 1, the learned Justice remarked, " It would not, perhaps, 
 be going too far to say, that the doctrines laid down by Chief J. Mar- 
 shall, in this case, were greatly shaken, by the subsequent opinion of 
 Judge Washington ; and that taking the whole case together, it will 
 hardly warrant a departure from principles long considered as settled." 
 The parol declarations of the testator as to the estate he intended to 
 give by the will are not admissible ; for they cannot control what the 
 law considers settled upon the face of the will. P\irrar v. Ayres, 5 
 Pick. 404. However, when there is an ambiguity in the words used, 
 which will justify an ■explanation by extrinsic matter, the Court will per- 
 mit a resort to memoranda written and signed by the testator, to show 
 what was intended (o be included bj the words in the will. Wads worth 
 r. Ruggle?, 6 Pick. 63.
 
 198 ^^ PAROL EVIDENCE. 
 
 The hesitation with which parol evidence is received 
 in equity to correct even mistakes in agreements and 
 deeds, is strongly exemplified by a case before Sir William 
 Fortescue(«)(109). Previously to marriage an estate was 
 agreed to be settled on the intended husband for life, re- 
 mainder to the wife for life, remainder to the sons success- 
 ively in tail male, remainder to all the daughters. Instruc- 
 tions were given to an attorney to draw the settlement, who 
 drew it as far as the limitations to the sons, where he 
 (*)stopped, and said, then go on as in Pippin v. Ekins ; 
 which was a precedent he delivered to his clerk, to go on 
 from that limitation, and was a right settlement to the issue 
 male and daughters by that wife ; but the clerk drew the 
 settlement to all the daughters of the husband, without 
 restraining it to that marriage : it was executed with this 
 mistake : the question arose between an only daughter of 
 that marriage and children of the husband's by the second 
 wife. The draft of the attorney was proved, and the 
 settlement in Pippin v. Ekins ; but the Court would not 
 admit parol evidence of the attorney tQ be read, and held 
 that the other evidence would not do ; that nothing appear- 
 ing in writing under the hands of the parties, the settle- 
 ment could not be altered. And Sir Thomas Clark is 
 reported to have said (6), that as to the head of the mis- 
 take, he did not give a positive opinion, but he did not 
 think the Court had relied upon parol evidence singly. 
 
 But whatever difficulty there may be of admitting parol 
 evidence singly, yet it is always admitted where it is 
 corroborated by other evidence. 
 
 This doctrine was carried a great way in the case of 
 Dr. Coldcot V. Serjeant Hide(c). Dr. Coldcot having 
 
 (a) Harwood v. Wallis, 2 Ves. 195, cited. 
 
 (6) 1 Dick. 295. 
 
 (c) 1 Cha. Ca. 15 ; 2 Freem. 173 ; 1 Sid. 238, cited ; 14 Car. II. 
 
 (109) See Dtipree v. M' Donald, 4 Des. 211. 
 (*161)
 
 OF PAROL EVIDENCE. 
 
 199 
 
 purchased church-lands in fee, under the title of Crom- 
 well, sold them to the defendant's testator, and entered 
 into general covenants for the title. Upon the Restoration 
 the estate was avoided, and upon an action on the cove- 
 nants, damages to the value of the purchase-money were 
 recovered. A bill was then filed to be relieved against 
 the recovery at law, which suggested a surprise upon the 
 plaintiff, in getting him to enter into general covenants, 
 and that it was declared by the parties, when the deed 
 was executed, that it was intended Dr. Coldcot should 
 not undertake any further than against himself; and there 
 (*)being some proof of this declaration^ it was decreed by 
 the Lord Chancellor and Master of the Rolls, that the 
 defendant should acknowledge satisfaction on the judg- 
 ment, and pay costs. And the reporter says, a like case 
 to this between Farrer v. Farrer was heard and decreed 
 after the same manner, about six months ago. 
 
 A case, nearly similar, occurred about eleven years 
 afterwards(f/) ; but it appeared that all the covenants 
 except the one upon which judgment had been obtained 
 at law, were restrained to the acts of the vendor, and that 
 the vendor sold only such estate as he had. 
 
 This last case was quoted in a case in the Common Pleas 
 before Lord Eldon(e), who thought the decision must 
 have been made on the ground of the intent of the parties 
 appearing on the instrument, since that intent, and the 
 consequent legal effect of the instmment, could only be 
 collected from the instrument itself, and not from any 
 thing dehors. In a still later case in the same Court(/), 
 Lord Alvanley thought, under the circumstances of the 
 case, that the application was made to the Court of Chan- 
 cery to correct the mistake, in the same manner as applica- 
 
 (d) Fielder r. Studley, Finch, 90. 
 
 (e) Browning v. Wright, 2 Bos. & Pull. 2fi. 
 (/) Hesse v. Stevenson, 3 Bos. & Pull. 675. 
 
 (*162)
 
 200 
 
 OF PAROL EVIDENCE. 
 
 tions are made to that Court to correct marriage articles 
 where clauses are inserted contrary to the intent of the 
 parties. It seems clear, however, that the relief in this case 
 was founded on parol evidence that the vendor sold only 
 such estate as he had, corroborated as it was by the form of 
 the deed and the subject of the contract. Such evidence 
 was received in the prior case of Dr. Coldcot and Serjeant 
 Hide, and is still clearly admissible. 
 
 Thus in Young v. Yoimg(g), the plaintiff married 
 Lucy, a defendant, and an infant ; the husband stated, or 
 (*)drew by way of instructions to his attorney, what the 
 wife's fortune then was, and agreed to add as much to 
 be settled in strict settlement, and likewise stated that the 
 intended wife had a prospect of an additional fortune ; to 
 which he agreed, provided it did not exceed 1,000/., to 
 add a like sum, to be likewise settled strictly, and he to 
 have the excess. The settlement was prepared according 
 to the instructions ; but the solicitor having, in the margin 
 of the draft, added double the sum, the settlement was 
 prepared and executed according to that mistake. Parol 
 evidence was admitted to prove the mistake ; that is, the 
 settlement was first shown to differ from the written in- 
 structions, and parol evidence of the counsel and attorney 
 was then received, to prove the mistake. 
 
 This equity was administered in the case of Thomas v. 
 Davis, before cited(^), where it clearly appeared, that the 
 estate in question was not intended to be comprehended 
 in the general words. This appeared from many circum- 
 stances, but particularly from the description of the estate 
 given by the husband to the attorney by way of instruc- 
 tions, which described the lands particularly, and did not 
 include Rigman Hill ; and the attorney proved that he 
 did not know of this estate, and that he introduced gener- 
 
 (g) 1 Dick. 295, cited. See 1 Dick. 303, 304. 
 
 (/i) Supra, p. 166; 1 Dick. 301 ; Reg. Lib. B. 1767, fol. 33, 34. 
 
 (*163)
 
 OF PAROL EVIDENCE. 
 
 201 
 
 al words, merely to guard against any wrong or imperfect 
 description of the lands actually intended to pass. It was 
 objected, that the admission of the attorney's evidence 
 was in direct contradiction to the statute of frauds ; but 
 Sir Thomas Clark was clear it might be read, and accord- 
 ingly admitted it(I). 
 
 (*)So in Rogers v. Earl(/), instructions were given, 
 previously to marriage, for a settlement of the wife's es- 
 tate on the husband during his life, if he and his wife 
 should so long live, remainder to the wife for life, remain- 
 der to the issue of the marriage in strict settlement, re- 
 mainder to such uses as the wife should appoint ; and a 
 draft of a settlement was drawn accordingly. And after 
 the limitation to the husband, it stood thus : And immedi- 
 ately after the decease of the husband, then to the wife^ 
 &c. ; and proper limitations were inserted to trustees to 
 preserve contingent remainders. When the wife saw the 
 draft, thinking she was past child-bearing, she objected to 
 the limitations to the issue, and they were directed to be 
 struck out. The attorney, by mistake, not only struck 
 out those limitations, but also the limitation to the wife 
 for life, and the subsequent limitation to trustees to pre- 
 
 (i) 1 Dick. 294. Note, the facts are not stated in the report ; they 
 are extracted from the Registrar's book ; see Reg. Lib. B. 1756, fol. 
 20o ; see Pritchard v. Quinchant, Ainbl. 147 ; 5 Yes. jun. 596, n. (a) ; 
 and Barstovv v. Kilvington, 5 Yes. jun. 593 ; and see Nelson r. Nelson, 
 Nels. Cha. Rep. 7 ; Shaw v. Jakeman, 4 East, 201. 
 
 (I) The judgment is very inaccurately stated in the report. After 
 addressing himself to the general words, the Master of the Rolls is stat- 
 ed to have said, Do these words coiDprise Redmond [Rigman] Hill? 
 I do not think they do include Redmond Hill ; but other words do. If 
 Redmond Hill was not intended, why was the wife to join ; and why 
 did she join ? — This is absolute nonsense. The wife joined because 
 she was interested in the settled estates ; and the opinion of the Court 
 was, that the general words did include Rigman Hill. The editor's 
 marginal abstract of this case shows how difficult it is to understand 
 the report of it. 
 
 VOL. 1. 26 (*164)
 
 202 ^^ PAROL EVIDENCE. 
 
 serve, and the deed was executed without the mistake 
 being discovered, whereby, as the bill stated, the said 
 power for appointing the reversion of the premises was 
 made to take place on the decease of the plaintiff gene- 
 rally, though the limitation to him was only during the 
 joint lives. The wife exercised her power by deed in 
 favor of her husband during his life, and then by will 
 gave him the fee, and then died in his life-time. Her 
 heir-at-law insisted that the use resulted to him during 
 the husband's life, and that there being no trustee to pre- 
 serve (*)contingent remainders, the devise in the will as an 
 execution of the power, not taking effect till the determi- 
 nation of the pcirticular estate, was void, and brought an 
 ejectment against the husband, and obtained a verdict(I). 
 The husband then filed a bill for an injunction, and to 
 rectify the mistake in the settlement. The defendant, by 
 his answer, urged that the draft of the settlement might 
 have been altered with a view to support the husband's 
 claim, and insisted that parol evidence could not be re- 
 ceived ; but Sir Thomas Clark decreed, that the "power 
 appeared to have been designed so far to extend as to 
 enable her to dispose of the interests in the estates after 
 the determination of the coverture, and during the life of 
 her husband, as well as to dispose of the inheritance of 
 the estates after her husband's decease, and ordered the 
 settlement to be rectified accordingly ; but without costs 
 on either side. 
 
 In the last case upon the subject(/c), a conveyance of 
 a portion of church-tithes upon a purchase was made, 
 contrary to what was considered to be the true construe- 
 
 (i) Rob V. Butterwick, 2 Price, 190 ; and see Beaumont v. Bram- 
 ley, 1 Turn. 41. 
 
 (I) The first point at least was clear at law, but the defendant set 
 up an old term as a bar to the plaintift^'s right to recover. The defence, 
 however, did not succeed. See Farmer dem. Earl v. Rogers, 2 Wils. 26. 
 
 (*165} 
 
 I
 
 OF PAROL EVIDENCE. 
 
 203 
 
 tion of the written agreement, subject to a proportion of 
 the rent reserved by the lease of the tithes ; and upon 
 proof that this was done by the mistake of the purchaser's 
 attorney, and that the rent had not been demanded for 
 several years, the deed was after the lapse of several 
 years rectified and made conformable to the written 
 a^reement(llO). 
 
 If a settlement be made contrary to the intention of the 
 (*)parties, merely to prevent a forfeiture(I), parol evidence 
 
 (I) In this case the settlement was to prevent the estate from being 
 sequestered on account of the husband having been in arms for Charles 
 the first. The decree was made in the reign of James his son. So 
 
 (110) See Table v. Archer, 3 Hen. & Munf. 399; as to marriage 
 articles ; and where the English decisions are reviewed. 
 
 Under circumstances which denote fraud in omitting to reduce a 
 part of an agreement into writing, the whole is open to parol proof. 
 And, upon the basis of part performance, where possession has been tak- 
 en or the acts done amount to part performance, the court may receive 
 parol proof of the whole agreement, independent of or in connection 
 with what may be in writing, in order to make out the contract. This 
 principle was recognised in the late case of Phyfe r. Wardell, 2 Ed- 
 wards' C. R. 47, where Phyfe held under a church lease ; and Warded 
 & al. contracted for the purchase thereof subject to a lease for a year 
 of a part of the premises ; but the writing omitted to specify all the par- 
 ticulars of the contract ; but the defendants said it was well understood. 
 After obtaining a renewal of the church lease, the defendants refused to 
 execute the contract. The court overruled the demurrer put in by the 
 defendants. " An objection is taken because part of the agreement is 
 not in writing. The bill sets forth the reason of the omission : it was 
 induced by the representations of the defendants, and the complainant 
 confided in them. If they were now permitted to take advantage of 
 the omissiot^and hold the complainant strictly to the written memoran- 
 dum as the only evidence of the agreement, this^Court would be sanc- 
 tioning the commission of a fraud. For the purpose of preventing such 
 a consequence, this court, under the circumstances, is at liberty to dis- 
 regard the writing and treat the transaction as a verbal contract. This 
 principle appears to have been acknowledged by Ch. J. Thompson, be- 
 fore the Court of Errors, in Parkhurst v. Van Cortland, 14 Johns. R. 33. 
 
 (*166)
 
 204 
 
 OF PAROL EVIDENCE. 
 
 is admissible of the real intent of the parties(/), and the 
 settlement will be rectified in conformity with it. 
 
 Where parties omit any provision in a deed, on the 
 impression of its being illegal, and trust to each other's 
 honor, they must rely upon that, and cannot require the 
 defect to be supplied by parol evidence. 
 
 Thus in Lord Irnham v. Child(m), it appeared that 
 Lord Irnham treated with Child for sale of an annuity. 
 Upon settling the terms, it was agreed that the annuity 
 should be redeemable ; but both parties supposing that 
 this appearing upon the face of the transaction would 
 make it usurious, it was agreed that the grant should not 
 have in it a clause of redemption ; and it was accordingly 
 drawn and executed without such a clause. Lord Thurlow 
 refused to supply the omission. A similar decision was 
 made by Mr. Justice Buller, when sitting in Chancery 
 for the Lord Chancellor(?z) ; and two similar determi- 
 nations were made by Lord Kenyon, when Master of the 
 Rolls(o). 
 
 (*)Upon these cases Lord Eldon observes, that they 
 went upon an indisputably clear principle, that the parties 
 did not mean to insert in the agreement a provision for re- 
 
 (/) Harvey v. Harvey, 2 Cha. Ca. 180, decided the same way, first 
 by Sir Harbottle Grimston, then by Lord Nottingham, and afterwards 
 by Lord Chancellor Jefferies ; and see Fitzgib. 213, 214 ; see Strat- 
 ford V. Powell, 1 Ball & Beatty, 1. 
 
 (m) 1 Bro. C. C. 92. 
 
 (n) Hare v. Shearwood, 1 Ves. jun. 241 ; 3 Bro. C. C. 168. See 
 and consider Haynes v. Hare, 1 Hen. Blackst. 659(n). 
 
 (o) Lord Portmore v. Morris, 2 Bro. C. C. 219 ; 1 Hen. Blackst. 
 663, 664 ; Rosamond v. Lord Melsington, 3 Ves. jun. 40, n. 
 
 that as to the nature of the forfeiture, it is evident that the relief of 
 equity would not have been afforded, for the purpose of upholding the 
 settlement, except under the Restoration ! 5| 
 
 (II) Perhaps this case does not belong to this line of cases, but should . i, 
 be classed with those in which a term is omitted by mistake ; of which 
 vide supra. 
 
 fM67^
 
 OF PAROL EVIDENCE. 205 
 
 demption, because they were all of one mind that it would 
 be usurious ; and they desired the Court to do not what 
 they intended, for the insertion of that provision was 
 directly contrary to their intention ; but they desired to 
 be put in the same situation as if they had been better 
 informed, and consequently had a contrary intention. 
 The answer is, they admit it w^as not to be in the deed ; 
 and why was the Court to insert it, where two risks had 
 occurred to the parties ; the danger of usury, and the 
 danger of trusting to the honor of the party ? 
 
 But fraud is in equity an exception to every rule. In 
 the case of Lord Irnham v. Child, Lord Thurlow distinctly 
 said, if the agreement had been varied by fraud, the evi- 
 dence would be admissible. If the bill stated that the 
 clause was intended to be inserted, but it was suppressed 
 by fraud, he could not refuse to hear evidence read to es- 
 tablish the rule of equity. Lord Kenyon advanced the 
 same doctrine in the cases before him, and Mr. Justice 
 Buller also thought that parol evidence was, in such cases, 
 admissibleQ?J. 
 
 The only difficulty in these cases is, to ascertain what 
 shall be deemed fraud. If parties merely agree to a term, 
 and then execute an instrument in which the term is 
 omitted, without objecting to the omission of it, the Court 
 cannot relieve the injured party (^). So where a lessor 
 drew a lease for one year, instead of twenty-one, and then 
 read it for twenty-one years, the lessee brought his bill to 
 be relieved ; but as he could read, it was deemed his o\\ n 
 (*)folly ; and as the case was within the statute, his bill 
 was dismissed with costs(r). Again, where in a lease the 
 
 (p) And see Taylor v. Radd, 5 Ves. jun. 395, cited ; Henkle r. R. 
 E. A. Office, 1 Yes. 317 ; and sec Pitcairne r. Ogbourne, 2 Ves. 375; 
 Countess of Shelburne v. the Earl of Inchiquin, 1 Bro. C. C. 338. 
 
 iq) See Rich v. Jackson, 4 Bro. C. C. 514 ; et supru, p. 143. 
 
 (r) Anon Skin. 159. 
 
 (*168)
 
 206 O^ PAROL EVIDENCE. 
 
 right to enter, cut, and carry away the trees, was reserv- 
 ed to the lessor, the lessee went into parol evidence to 
 show that that was contrary to the original agreement, 
 and proved a conversation previously to the execution of 
 the lease, in which the landlord assured the lessee he 
 should not cut the timber, and only reserved it in order 
 that all his leases might be uniform. The plaintiff's 
 counsel, however, gave up this part of the bill at the hear- 
 ing(5), and Lord Rosslyn treated it as clearly wrong. So 
 I am told that in a very recent case at law(i), where a 
 warrant of attorney was given to confess judgment on the 
 assurance of the creditor that no execution should issue 
 for three years, and execution was, contrary to this parol 
 agreement, issued immediately, the Court inclined, that 
 as the defendant knew the contents, and had sufficient 
 time to read the warrant of attorney, they could not re- 
 lieve ; and yet a court of law considers itself to have a 
 considerable controlling power over its own judgments 
 entered up under warrants of attorney, where the party 
 entering them up has been guilty of a fraud(w). The 
 case, however, went off on another ground(lll). 
 
 In the Countess of Shelburne v. the Earl of Inchi- 
 quin(a:),- Lord Thurlow said, if two persons entrust a third 
 person to draw up minutes of their intention, and such 
 
 (s) Jackson v. Cator, 6 Ves. jun. 688. 
 (0 Gennor v. Macmahon, M. T. 1806, B. R. 
 («) See 1 H. Blackst. 63, 664. 
 
 (a^) 1 Bro. C. C. 350 ; and see Crosby v. Middleton, 3 Cha. Rep. 
 99; Langley v. Brown, 2 Atk. 195 ; Baker v. Paine, 1 Ves. 6. 
 
 (Ill) As to the validity of private agreements of parties, relating to 
 the proceedings in a cause. See Dunlop's Les. v. Speer, 3 Binn. 169. 
 Platihenhorn v. Cave, 2 Yeates, 370. Parol evidence is inadmissible 
 to shew, that a levy and sale under a Ji- Ja. has been abandoned by the 
 plaintiff, in contradiction of the'sheriff's deed. The proper remedy, in 
 such case, would be an application to the Court to set aside the sale. 
 Jackson v. Vanderhayden, 17 Johns. Rep. 167. 
 
 I
 
 OF PAROL EVIDENCE. 
 
 2or 
 
 person does not draw them according to such intention, 
 that case might be relieved, because that would be a kind 
 of fraud. 
 
 And it is said, that in the case of Jones v. Sherifte(?/), 
 (*) there were heads of an intended lease taken by an at- 
 torney in writing ; but upon proof that some other clauses 
 were agreed on between the parties at the same time, the 
 Court decreed that those clauses should be put into the 
 lease, notwithstanding the counsel on the other side stren- 
 uously insisted on the statute of frauds. 
 
 And if either party object to a conveyance, on the 
 ground of a term of the agreement being omitted, and 
 the other party promise to rectify it, whereupon the deed 
 is executed, a specific performance of the promise will be 
 enforced. 
 
 Thus in Pember v. Mathers,(2') a bill was filed for a 
 specific performance of a parol agreement by a purchaser 
 of a lease under written conditions, to indemnify the 
 vendor against the rent and covenants ; and it was ob- 
 jected, on the part of the defendant, that the evidence was 
 inadmissible, upon the ground, that where the parties 
 have entered into a written agreement, no parol evidence 
 can be admitted to increase or diminish such agreement. 
 The rule. Lord Thurlow said, was right ; but where the 
 objection was originally made, and promised by the other 
 party to be rectified, it comes amongst the string of cases 
 where it is considered as a fraud. Then the evidence is 
 admissible. There being some doubt as to the fact, Lord 
 Thurlow ordered it to go to law upon an issue, whether 
 there was such a promise on the day of the execution of 
 the agreement. Upon the trial, the jury found there was 
 such a promise ; and the plaintiff had a decree for a specific 
 performance(l 12). 
 
 (y) 9 Mod. 88, cited. 
 
 {2) 1 Bro. C. C. 62 ; see 14 Ves. jun. 624. 
 
 (112) See Christ v. Diffeback, 1 Serg. & Rawle, 464. 
 
 (*169)
 
 2Q3 OF PAROL EVIDENCE. 
 
 So we have before seen, that where it is stipulated that 
 the agreement shall be reduced into writing, and either 
 party fraudulently prevents the agreement from being 
 (*)put into writing, equity will perhaps relieve the injured 
 party(«). 
 
 And it is perfectly clear that where fraud is distinctly 
 proved, or the jury infer it from the circumstances, an 
 agreement is invalid at law, as well as in equity (6) ; but 
 the reducing the agreement to writing is, in most cases, 
 an argument against fraud. 
 
 But it must be remarked, that a deed will not be recti- 
 fied in equity on the ground of mistake or fraud, to the 
 prejudice of a bona jide purchaser, without notice. 
 
 Thus in the case of Thomas v. Davis(c), although the 
 lands passed at law, yet as the mistake was clearly proved, 
 the words were restrained as between the persons claiming 
 under the wife, whose estate was comprised by mistake, 
 and the heir of the husband, to whom the estate had passed 
 by the error ; but the same equity was not administered 
 against the mortgagee, who was left in possession of the 
 legal right which the generality of the conveyance had 
 invested him with(113). 
 
 (a) Vide supra, p. 1 14. 
 
 (fe) Haigh V. De la Cour, 3 Campb. 319 ; Emanuel r. Dane, 3 
 Campb. 299; Solomon v. Turner, 1 Stark. 51. 
 
 (c) Supra, p. 155 ; Reg. Lib. B. 1757, fol. 33, 34 ; 1 Dick. 301. . 
 
 (113) The rights of creditors, particularly, will be protected. 
 JWTeer v. Sheppard, 1 Bay,, 461. Fitzpiatrick v. Smith, 1 Des. 340. 
 See Strong v. Glasgow, 1 Car. Law Rep. 279. Hawkins v. Hawkins, 
 Id. 496. Ross V. JVorvell, 1 Wash. 14. Although parol evidence can- 
 not be received to contradict an instrument in writing, as between 
 parties and privies ; yet, the rule does not apply to strangers, who have 
 an interest in knowing the truth. Overseers of Berlin v. Overseers of 
 JVorivich, 10 Johns. Rep. 229. 
 
 In Pennsylvania, where equity is a part of the law, fraud is a defence 
 in all cases. Therefore in Stubbs v. King, 14 S. & R. 206, where the 
 action was brought to recover the purchase money stipulated for in a 
 
 (*170)
 
 OF PAROL EVIDENCE. 
 
 209 
 
 bond, held, that the defendant, under the plea of payment with leave to 
 give special matter in evidence agreeably to the act in that state, might 
 show by parol evidence a misrepresentation on the part of the vendor as 
 to the boundaries of (he land ; and the execution of such bond was no 
 extinguishment of the fraud. Gibson, J. in delivering the judgment of 
 the Court. " At the trial, the defendant was permitted to prove that 
 while he was treating for the purchase, the plaintiti' jihowed as the boun- 
 dary, lines which are since found not to be so in fact, and that the lines 
 designated in the conveyance, exclude land which was shown to him as 
 part of the tract. In England such a plea would not be tolerated in a 
 court of law, notwithstanding in Mr. Chitty's Treatise on Pleading, (vol. 
 2, p. 495), there is a precedent for it ; but the better opinion is, that on- 
 ly that sort of fraud which is commhted in the execution of the instru- 
 ment, can be pleaded at law. Here, where equity is a part of the law» 
 fraud is a defence in all cases. But in the conveyance to the defend- 
 ant, the land is described by metes and bounds ; and it is argued that 
 the evidence contradicted the deed, by showing that the land was sold 
 by other boundaries ; and it is also contended that the declarations of the 
 grantor having been made before the execution of the deed, were inad- 
 missible, all former stipulations being merged in the act, which is the 
 consummation of the contract. It is generally true, that the execution of 
 a conveyance is the fulfilment of all previous bona fide stipulations, be- 
 cause such stipulations' are liable to be varied whilst negotiations are 
 pending, the writing which perpetuates the evidence, is supposed to con- 
 tain the whole contract. But where a continued misapprehension of 
 material facts has been induced on the part of one, by the misrepresen- 
 tations of (he other, it is obvious that the execution of the writing ought 
 not to extinguish the right of the injured party to show (he fraud by 
 which his asi^ent to (he contract was obtained. This is a particular 
 head of equitable relief; in affording which it is said a deed cannot be 
 set aside in part for fraud ; but that it must be set aside in loto, even 
 (hough innocent persons are interested under it. In our practice, the 
 defence is considered as resting on (he ground of want of consideration 
 as a consequence of the fraud ; and the relief is then only commensu- 
 rate with (he actual want of considera(ion. 
 
 But, in general, where a bond is given for the purchase money of land 
 and, before payment, it is discovered, that (here are incumbrances existing 
 the plaintiff caimot recover, without deducting the amount of the incum- 
 brances, although he has made a conveyance to the defendant wi(h gen- 
 eral vvarran(y ; bu(, where the incumbrances, wi(h all (he circumstances 
 attending them, arc known both by vendor and vendee, and the vendee 
 takes from the vciulor a deed, warranting particularly against those in- 
 voi,. J. 27
 
 210 
 
 OF PAROL EVIDENCE. 
 
 cumbrances, and gives his bond for the purchase money, it is no defence 
 in an action on the bond, to say, that the incumbrances were still exist- 
 ing. This was settled by the Court, Tilghman, C. J. in Fuhrman v. 
 Loudon, 13 S. & R. 3S6, which was a case of legacies charged on the 
 land. 
 
 In Morris v. Buckley, 11 S. & R. 168, where a scire facias was sued 
 for the purpose of recovering the purchase money of land under a mort- 
 gage, which was claimed by another, whose title had been ad- 
 judged good as respected the mortgagor; held, that it was sufficient for 
 the defendant to execute a release on receiving payment for the partial 
 failure of title ; and that there was no necessity to tender a conveyance.
 
 [ 211 ] 
 
 DCHAPTER IV. 
 
 OF THF, CONSEQUENCES OF THE CONTRACT. 
 
 SECTION I. 
 
 Of the Rule in Equity^ that the Purchaser is entitled to 
 the Estate from the Time of the Contract. 
 
 Equity looks upon tilings agreed to be done, as actual- 
 ly performed(a), (I)(114) ; consequently, when a contract 
 is made for sale of an estate, equity considers the vendor 
 as a trustee for the purchaser of the estate sold(6), and 
 the purchaser as a trustee of the purchase-money for the 
 vendor(c). 
 
 Therefore the contract will not be discharged by the 
 bankruptcy of either the vendor(J) or vendee(e), (II). 
 
 (a) Francis's Maxims, max. 13; 1 Trea. Eq. chap. 6, sec. 9. See 
 Callaway r. Ward, 1 Yes. 318, cited. 
 
 (6) Atcherley r. Vernon, 10 Mod. 518; Davie r. Beardsham, 1 
 Cha. Ca. 39 ; and Lady Fohaine's case, cited ibid. ; and see 1 Term 
 Rep. 601 ; and Green r. Smith, 1 Atk. 572. 
 
 (c) Green v. Smith, nbi sitpra ; Pollexfen v. Moore, 3 Atk. 272. 
 
 {d) Orlebar v. Fletcher, 1 P. Wms. 737. The observation in 
 Goodwin v. Lightbody, 1 Dan. 156, appears to be inaccurate. 
 
 (e) See 3 Ves. jun. 255 ; and Bowles v. Rogers, 6 Yes. jiin. 95, n. ; 
 Whitworth v. Davis, 1 Yes. & Bea 545. 
 
 (I) A lessee insured his house, the lease expired, and he contracted 
 for a new lease. Then the house was burned, and the office insisted 
 that at the time of burning it was not the plaintifi''s house ; but Lord 
 Chancellor King, and afterwards the House of Lords, held otherwise. 
 See printed cases, Dom. Proc. 1730. 
 
 (II) As to the effect of an extent subsequently to a contract, see Rex 
 V. Snow, 1 Price, 220, cited. 
 
 (114) See Crai^ v. LesUr., 3 "Wheat. 578. 
 
 (*171)
 
 012 ^^ '^^'^ CONSEQUENCES OF 
 
 (*)Bat an act of bankruptcy, upon which a commission 
 has not issued, will prevent the execution of the agree- 
 ment, as neither a buyer nor a seller can be assured that a 
 commission may not issue in due time, in which case 
 he could not retain the estate or money against the 
 assignees(/^. 
 
 The Bankrupt Act, 6 Geo. 4(o-), enacts, that if any 
 bankrupt shall have entered into any agreement for the 
 purchase of any estate or interest in land, the vendor 
 thereof, or any person claiming under him, if the assig- 
 nees of such bankrupt shall not (upon being thereto 
 required) elect whether they will abide by and execute 
 such agreement, or abandon the same, shall be entitled 
 to apply by petition to the Lord Chancellor, who may 
 thereupon order them to deliver up the said agreement, 
 and the possession of the premises, to the vendor, or 
 person claiming under him, or may make such other order 
 therein as he shall think fit. 
 
 The death of the vendor or vendee before the convey- 
 ance(/i.) or surrender(i), or even before the time agreed upon 
 for completing the contract, is in equity immaterial(/c). 
 
 If the vendor die before payment of the purchase- 
 money, it will go to his executors, and form part of his 
 assets(/) ; and even if a vendor reserve the purchase- 
 money, payable as he shall appoint by an instrument, 
 
 (/) Lowes V. Lush, Franklin v. Lord Bro'.vnlow, 14 Ves. jun. 647, 
 550. 
 
 {g) c. 16, s. 76. 
 
 (/i) Paul V. Wilkins, Toth. 106. 
 
 {i) Barker v. Hill, 2 Cha. Rep. 113. 
 
 {k) Winged v. Lefebury, 2 Eq. Ca. Abr. 32, pi. 43 ; cases cited 
 ante, n. (6). 
 
 (1) Sikes V. Lister, 6 Vin. Abr. 641, pi. 28; Baden v. Earl of Pem- 
 broke, 2 Vern. 213; Bubb's case, 2 Freem. 38; Smith r. Hibbard, 
 2 Dick. 712 ; Foley i'. Percival, 4 Bro. C. C. 419 ; and see Gilb. Lex 
 Praetor. 243. 
 
 (*172)
 
 THE CONTRACT. 213 
 
 executed in a particular manner, and afterwards exercise 
 (*)his power, the money will, as between his creditors and 
 appointees, be assets(m). 
 
 If the estate is under a contract for sale at the date of 
 the will, a devise of it to be sold for a charity, will not 
 give the purchase-money to the charity, in consequence 
 of the mortmain act, as it is called(n), although this 
 point was in the first instance otherwise decided(o)(115). 
 
 A vendee being actually seised of the estate in contem- 
 plation of equity, must, as we shall hereafter see, bear 
 any loss which may happen to the estate between the 
 agreement and conveyance, and will be entitled to any 
 benefit which may accrue to it in the interim(;?) ; but if 
 he obtain possession of the estate before he has paid the' 
 purchase-money, and begin to cut timber, equity will 
 grant an injunction against him(^). 
 
 If the purchaser was tenant at will of the estate, the 
 contract determines the tenancy. And even if he was 
 tenant for a term certain, the agreement determines the 
 relation of landlord and tenant, and in equity, at least, 
 the landlord cannot call for rent(?'). 
 
 It is a consequence of the same rule, that a purchaser 
 may sell or charge the estate, before the conveyance is 
 executed(5)(116) ; but a person claiming under him must 
 
 (j/i) Thompson v. Townc, 2 Vein. 319 ; 466. 
 
 (rt) Harrison v. Harrison, 1 Riiss. and Myl. 71 ; 1 Taunt. 273. 
 
 (o) Middlcton v. Spicer, 1 Bro. C. C. 201. 
 
 (p) See jjost, ch. 5. 
 
 (</) Crockford v. Alexander, 15 Ves. jun. 138. 
 
 (r) Daniels v. Davison, 16 Ves. jun. 249. 
 
 (s) Seton V. Slade, 7 Ves. jun. 265 ; and see 1 Ves. 220 ; and 6 
 Ves. jun. 352. Wood v. Griffith, 12 Feb. 1818. MS. see post.; 2 
 I5all & Beat. 522. 
 
 (115) See Baptist Association v. HarVs Exrs. 4 Wheat. 1 ; and note 
 I. of the appendix to the same volume, on the subject of charitable be- 
 quests, where the principal authorities relating to charities are collected. 
 
 (116) See Barton v. Rushton, 4 Des. 373. 
 
 (*173)
 
 2J4 ^"^^ '^^^^ CONSEQUENCES OF 
 
 submit to perform the agreement in toto, or he cannot be 
 Ye[\eved(t). 
 
 (^•)So he may devise the estate, if freehold(^^)(117), be- 
 fore the conveyance ; and if copyhold, before the surren- 
 der(if') ; and that , although, the estate is contracted for at 
 a future day(a')5 or the contract is entered into by a trus- 
 tee for him(7/) ; and the devisee will be entitled to have 
 the estate paid for out of the personal estate of the pur- 
 chaser (z)(l 18). 
 
 If a contractor for an estate by his will give a legacy, 
 which he directs to be raised by sale of the estate, and 
 the contract is afterwards vacated, the legacy will be 
 payable out of the general assets(«). 
 
 The rule that an estate contracted for may be devised 
 before it is conveyed or surrendered to the purchaser, has 
 now become a land-mark, and could not be shaken with- 
 out endangering the titles to half of the estates in the 
 kingdom. The applicability of the rule to freehold estates 
 
 (t) See Dyer v. Pulteney, Barnard. Rep. Cha. 160 ; a very particu- 
 lar case. 
 
 (m) Darris's case, 3 Salk. 85 ; Milner v. Mills, Mose. 123 ; Alleyn 
 V. Alleyn, Mose. 262 ; Atcherley v. Vernon, 10 Mod. 518 ; Gibson v. 
 Lord Montfort, 1 Ves. 485. 
 
 (tv) Davie v. Beardsham, 1 Cha. Ca. 39 ; Nels. Cha. Rep. 76 ; 3 
 Cha. Rep. 2 ; Greenhill v. Greenhill, 2 Vern. 679 ; Free. Cha. 329 ; 
 Atcherley v. Vernon, 10 Mod. 518; Robson r. Brown, Oct. 1740, S. 
 P. ; and see 9 Ves. jun. 610. 
 
 (x) Commissioner Trimuel's case, Mose. 265, cited ; and see Atch- 
 erley V. Vernon, 10 Mod. 518 ; Gibson v. Lord Montfort, 1 Ves. 485. 
 
 (y) Greenhill v. Greenhill, 2 Vern. 679. 
 
 (z) Milner v. Mills, Mose. 123 ; Broome r. Monck, 10 Ves. jun. 
 697. 
 
 (a) Fowler v. Willoughby, 2 Sim. and Stu. 354. Qu. When was 
 the contract rescinded 1 The legacy was considered a demonstrative 
 
 (117) See M'Kimwnv. Thompson, 3 Johns. Ch. Rep. 307,310. 
 Livingstony. JVewkirk, 3 Johns. Ch. Rep. 312, 316. 
 
 (118) See Livingston v. JVewkirk, 3 Johns. Ch. Rep. 316. 
 
 (*174)
 
 THE CONTRACT. 
 
 215 
 
 has, I believe, never been questioned, but in Ardesoife 
 V. Bennet(6), where the point arose as to a copyhold 
 estate, Sir Thomas Sewell decided the case on another 
 ground, and appears to have avoided sanctioning the rule 
 in question ; and in a manuscript note of this case by the 
 name of Wilson v. Bennet, it is said that the Master of 
 (*)the Rolls was of opinion that the copyhold estate did 
 not pass by the will. This opinion was clearly extra-judi- 
 cial, and cannot be deemed subversive of the numerous 
 cases which have established the contrary doctrine ; and, 
 indeed, in a case before Sir Thomas Sewell, a few years 
 after that of Ardesoife v. Bennet, he seems to allude to a 
 devise of a copyhold estate contracted for, as sanctioned 
 by practice(c). 
 
 An estate contracted for will pass by a general devise 
 of all the lands purchased by the testator, although he may 
 have purchased some estates which have been actually 
 conveyed to him, and would therefore of themselves 
 satisfy the words of the will(f/). 
 
 On the other hand, it seems that estates recently pur- 
 chased and actually conveyed, will pass with estates con- 
 tracted for, by a general devise of all the manors, fee. for 
 the purchase whereof the testator has already contracted 
 and agreed(e)(I). But a devise of estates "for the 
 purchase whereof the testator has only contracted and 
 agreed," would not pass estates actually conveyed to him 
 
 (6) 2 Dick. 403 ; and see 15 Ves. jun. 391, 392, n. 
 
 (c) Floyd V. Aldridge, 1777, 5 East, 137, cited ; and see Vernon v. 
 Vernon, 7 East, 8. 
 
 (d) Atcherly v. Vernon, 10 Mod. 518. 
 
 (e) St. John V. Bishop of Winton, Cowp. 94; Lofft, 113, 349, S. 
 C. ; and 2 Blackst. 930. 
 
 (I) This, however, must depend upon the particular circumstances of 
 each case. The case referred to can scarcely be cited as a binding 
 authority establishing a general rule. It seems that the House of Lords 
 was taken by surprise in affirming the judgment. 
 
 (*176)
 
 21g OF THE CONSEQUENCES OF 
 
 before the will, unless perhaps they were recently pur- 
 chased, and the testator had not contracted for any other 
 estate. 
 
 If a man possessed of a term of years contract for the 
 purchase of the inheritance, the term, by construction of 
 equity, instantly attends the inheritance ; and therefore, 
 by a devise of the estate subsequently to the contract, the 
 (*)fee-simple would pass, although not actually conveyed, 
 and the term as attendant on it(/"). 
 
 And if the purchaser had, previously to the purchase, 
 made his will, by a general bequest in which the term 
 would have passed, yet the legatee will not be entitled to 
 it, although the bequest be not expressly revoked ; because 
 the term, by the construction of equity, attended the 
 inheritance immediately on the purchase of the fee, and 
 it must therefore follow it in its devolution on the heir 
 or devisee (§•). 
 
 The relation of vendor and purchaser in such a case, 
 where it is formed by a conveyance of the inheritance, 
 puts an end to the covenants, though ever so large and 
 general, which existed betvveen lessor and lessee(/i). 
 
 The same rule, it seems, must prevail where the term is 
 even specifically bequeathed ; for if the fee had been 
 actually conveyed, the conveyanc ewould have operated 
 as a revocation («') ; and as the vendee is seised of the fee 
 in contemplation of equity, although the conveyance be 
 not executed, the same rules ought to be adhered to in 
 each case. 
 
 Although the estate may, subsequently to the will, be 
 
 (/) Per Sir Wm. Grant, in Capel v. Girdler, Rolls, 16 May 1804, 
 MS. ; 9 Ves. jun. 609 ; Cooke v. Cooke, 2 Atk. 67. 
 (o) Capel V. Girdler, ithi sup. 
 {h) See 1 Bligh, 69. 
 
 (i) Galton t'. Hancock, 2 Atk. 424, 427, 430. 
 (*176)
 
 THE CONTRACT. 
 
 217 
 
 conveyed, or surrendered, either to the purchaser(/c), or to 
 a trustee for him(/), yet that will not operate as a revocation 
 of his wiil(I). The legal estate will of course descend to 
 
 {k) Parsons-t). Freeman, 3 Atk. 741 ; Amb. 116 ; and see 1 Ves. 
 jun. 256 ; 2 Yes. jun. 429, 602 ; 6 Ves. jun. 220; 8 Ves. jun. 127 ; 
 and Prideux v. Gibbin, 2 Cha. Ca. 144. 
 
 (/) Jenkinson v. Watts, Lofft, 609, reported ; cited 7}om. Watts v. 
 Fullarton, Dougl. 718; Rose v. Cunynghame, 11 Ves. jun. 650. 
 
 (I) In Brydges v. Duchess of Chandos, 2 Y es. jun. 429, Lord Rosslyn, 
 in treating of this point, said, " Another case is supposed to arise, in 
 which this Court determines upon a principle of equity, it is not said 
 directly against the rule of law, but without attending to what the law 
 would be ; that is the case where an equitable estate is devised, and 
 after the will the legal estate is taken, the Court has said that does not 
 revoke the will. Tt is difficult to state that, at this time of day, in a 
 court of law, which could not look at the equitable interest, but looks 
 only at the legal ; but as the legal interest is only a shadow, the justice 
 of the case is very evident ; but it is a decision in conformity to the like 
 case at law. The very case occurred at law in Roll. Abr. 616, pi. 3. 
 Cestui que use, before the statute of uses, devises ; afterwards the feoffees 
 made a feoffment of the land to the use of the devisor ; and after the 
 statute the devisor dies ; the land shall pass by the devise ; because, 
 after the feoff'ment, the devisor had the same use which he had before. 
 That is exactly the case of an equitable estate devised, and a convey- 
 ance taken afterwards of the legal estate ; and this Court was so far 
 from determining without considering what the rule of law would be, 
 thai here is the very point decided by a court of law. 
 
 The case referred to is thus stated in Rolle : — " Si home aiantfeffees 
 a son use dcvant le statut de 27 H. 8. tisl devise le terre al auter, et puis 
 lesfeffees font feffment del terre al use del devisor et puis le statut le 
 devisor monist, le terre passera per le devise, car apres le feffment le 
 devisor avoit mesme Vuse que il avoit devant." 
 
 The case then appears to be this. The cestui que use made his will, 
 and the feoffees afterwards made a fcoff'ment of the lands to his use ; 
 that is, enfeoffed other persons to the use of him. This appears by the 
 reason given for the decision, namely, " because after the feoff'ment the 
 devisor had the same use which he had before." Whereas, if the facts 
 of the case were as Lord Rosslyn supposed, the devisor would, before 
 the feoff'ment, have been a mere cestui que use, entitled at law to neither 
 jus in re, nor jtis ad rem ; and after the fcoffhient he would have been 
 
 roh, I. 28
 
 218 ^^ THE CONSEQUENCES OF 
 
 (*)the heir at law, and he will in equity be deemed a mere 
 trustee for the devisee, unless the devisee, thinking the 
 
 actually clothed with the legal seisin of the estate ; the case, therefore, 
 seems only a decision, that where a man devises an equitable estate^ 
 a transfer of the legal estate to other persons, in trust for him, is not 
 a revocation of his will. And such is still the rule of law (Doe v. Pott, 
 Dougl. 2d edit. 710.) as well as of equity, JenkinsontJ. Watt, Lofft, 609. 
 It may, however, be objected, that the devisor did not die till after 
 the statute of uses ; and therefore admitting the force of the foregoing 
 remarks, it still appears that the legal estate was, by the operation of 
 the act, vested in the devisor. To this it may be answered, that the 
 statute was expressly passed to prevent alienation of estates by devise, 
 although it declared that wills made before the statute, by persons who 
 were^ or should be dead before the 1st of May 1536, should not be inva- 
 lidated by the act. We must therefore presume that the devisor died 
 before that time ; otherwise the will would have been void by virtue of 
 the act itself, as was expressly decided in a case where cestui qiie use 
 before the statute devised the use ; and then came the statute, which 
 transferred the use into possession ; and although the testator survived 
 the statute of wilhy yet the operation of the statute of uses was holden to 
 be a revocation, because the use ivas thereby gone, 1 Roll. Abr. 616, (R.) 
 pi. 2 ; Putbury v. Trevalion, Dyer, 142, b. — Indeed the statute of uses 
 could not have come in question in the above case, if the feoffment had 
 been made to the devisor himself. 
 
 Lord Hardwicke seems to have construed the case in Rolle in the 
 sara,e manner as Lord Rosslyn did, (see Sparrow v. Hardcastle, 3 Atk. 
 798 ; Ambl. 224), although he appears to have been struck with the 
 reason given for the decision ; in explanation of which, he is in Atkyns 
 stated to have said, " The use at law was the beneficial and profitable 
 interest, the same as a trust in equity, and which remained in the same 
 manner after the feoffment as before, and the feoffees there granted 
 the dry legal estate to the devisor." In Ambler, his Lordship is re- 
 ported to have said, " Thus the law considers two interests in the 
 land : the legal estate, and the use : now the use remains the same at 
 the making the devise, and at the death of the devisor ; and therefore 
 accepting the grant of the feoffees makes no alteration in it." 
 
 Lord Hardvv'icke's attempt to reconcile what he conceived to be the 
 decision in this case, with the reason given for it, evinces the impossi- 
 bility of making them consistent. According to his argument, the 
 equitable interest was not merged by its union with the legal estate, but 
 still su'^sisted in the contemplation of lav/. 
 
 In the case of Willet v. Sandford, 1 Yes. 186, Lord Hardwicke 
 (*177)
 
 THE CONTRACT. 219 
 
 estate did not pass by the will, permit the heir to take the 
 estate, and acquiesce in this for a long while ; in which 
 case equity will not relieve him(m). 
 
 (*)But in analogy to the decisions upon legal estates(n) 
 it has been held, that a devise of a freehold estate con- 
 tracted for, is revoked by a subsequent conveyance to the 
 (*)usual uses to bar do\ver(o), even where the contract 
 was by parol(/?)j but it is difficult to say, in the latter 
 case, that a conveyance to the usual uses to bar dower is 
 not within the contract of the parties. If, however, it 
 were stipulated in the contract that the estate should be 
 conveyed to the purchaser in fee, or to such uses as he 
 should appoint, a conveyance to uses to bar dower, 
 would not, it is apprehended, operate as a revocation of 
 the will. 
 
 (m) Davie v. Beardsham, 1 Cba. Ca. 39 ^ and see Pigott tJ. Waller, 
 7 Ves. jun. 98. 
 
 (n) See Tickner v. Tickner, 3 Atk. 742, cited ; Kenyon v. Sut- 
 ton, 2 Ves. jun. 600, cited ; and Nott v. Shirley, ibid. 604, n. ; and 
 see 2 Ves. jun. 429, 600 ; 6 Ves. jun. 219 ; 8 Ves. jun. 115, 211 ; 10 
 Ves. jun. 249, 256. See also Luther r. Kidby, 3 P. Wms. 170, n. and 
 observe the distinction. 
 
 (o) Rawlins v. Burgis, 2 Ves. & Bea. 382. There was an appeal 
 to the Lord Chancellor, which was for particular reasons withdrawn. 
 It is a point of great interest and nicety. 
 
 (p) Ward V. Moore, 4 Madd. 368. 
 
 classed the different interests in land into three kinds : First, the estate 
 in the land itself; the ancient common-law fee. Secondly, the use; 
 which was originalhj a creature of equity ; but since the statute of uses 
 it draws the estate in land to it ; so that they are joined, and make one 
 legal estate. Thirdly, the trust ; which the common law takes no notice 
 o/, but which carries the beneficial interests and profits into this court, 
 and is still a creature of equitij, as the use was before the statute. 
 
 This judicious classification proves (what indeed could not be doubt- 
 ed), that the true principles of this subject were familiar to this great 
 master of equity, and that he was led into a false argument by endeav- 
 oring to account for a principle which did not exist. 
 
 Upon the point in this note, see further, n. (a) to 2 Ves. & Bea. 385, 
 
 and note(l) to Treat. Powers, 5th edit. p. 155. 
 
 (*178) (*179)
 
 220 OF THE CONSEQUENCES OF 
 
 Estates contracted for after the will, will not puss by 
 it(9)(119) ; nor will lands pass by the will, although con- 
 veyed to the purchaser subsequent to his will in pursu- 
 ance of a contract prior to the will, unless it was a valid 
 binding contract(r). But in these cases the heir at law 
 will be entitled to the estate for his own benefit, (*)and 
 if not paid for, the purchase-money must be paid out of 
 the personal estate of his ancestor(5), and that, although 
 he unite in himself the three characters of vendor, heir, 
 and executor(/). The estate will, however, be assets in 
 the hands of the heir. 
 
 So if the purchaser die intestate, the heir will in like 
 manner be entitled to have the estate purchased for 
 him(120) : and if his ancestor die before the conveyance 
 
 (g) Langford t). Pitt, 2 P. Wms. 629 ; Alleyn v. Alleyn, Mose. 262 ; 
 Potter V. Potter, 1 Ves. 437 ; and see 1 Atk. 673 ; White v. White, 2 
 Dick. 622 ; Reg. Lib. B. 1776, fol. 650. 
 
 (r) Rose v. Cunynghame, 11 Ves. jun. 50. 
 
 (s) Milnerv. Mills, Mose. 123; and see 2 P. Wms. 632; 3 P. 
 Wms. 224 ; Broome v. Monck, 10 Ves. jun. 597. 
 
 (f) Coppin V. Coppin, Sel. Cha. Ca. 28; 2 P. Wms. 291. 
 
 (119) See Jackson v. Poller, 9 Johns. Rep. 312. Jiggilsv. Maney, 
 1 Murph. 258. Johnson v. Hanleij, Tay. 305. Cogdell v. Cogdell, 3 
 Des. 346. Livingston v. JVexvkirk, 3 Johns. Ch. Rep. 312. Smith v. 
 Codringlon, 8 Cranch, 66. JS'VKinnon v. Thompson, 3 Johns. Ch. 
 Rep. 307. Burke v. Young's Les. 2 Serg. & Rawle, 387. Under 
 the statute of Virginia, relating to wills, after acquired lands may pass 
 by will, provided such be the clear intention of the testator. Smith v. 
 Codringlon, ut supra. It is a rule of the common law, that a will, as 
 to lands, speaks at its date, and as to personal property, at the time of 
 the testator's death. Id. 
 
 (120) Champion v. Brown, 6 Johns. Ch. Rep. 398, 402. Living- 
 ston V. JVeiokirk, 3 Johns. Ch. Rep. 312. 
 
 " In Pennsylvania, having no Court of Equity, we are compelled to 
 consider that as done, which Chancery would enforce the performance 
 of, and this is the reason why an action of ejectment may be supported 
 in this state on an equitable title. Per Gibson, J. in Vincent v. Huff, 
 4 S. & R. 301. Therefore, where one has contracted for the purchase 
 
 (*180)
 
 THE CONTRACT. 221 
 
 is executed, the heir may devise, charge, or sell the es- 
 tate, in the same manner as the ancestor himself might 
 have done(M). 
 
 If the executor complete the purchase, and take the 
 conveyance in his own name, he will be a trustee for the 
 heir or devisee(i;). And if the assets cannot be got in, 
 and the real representative pay for the land out of his 
 own pocket, he may afterwards call upon the personal 
 estate to reimburse him(x). So, if the personal estate is 
 insufficient to perform the contract, and the agreement 
 
 (m) Langford v. Pitt, 2 P. Wms. 629. 
 (v) Alleyn v. Alleyn, Mose. 262. 
 (x) See 10 Ves. jun. 614, 615. 
 
 of land, paid the money and received possession, he is regarded in 
 the light of a vendee with a deed executed and delivered to him. 
 Moody V. Vandyke, 4 Biim. 41. But, where the plaintiff claiming under 
 an equitable title, had been in possession ; and had made improve- 
 ments ; but had not paid or tendered the purchase money ; and the 
 Court at the trial laid it down in general terms only, that if the purchase 
 money was paid, the plaintiff might recover, yet because the converse of 
 the proposition was not stated to the jury, the Court ordered a new trial. 
 4 S. & R. 298, supra. 
 
 The point decided in Harris v. Bell, 10 S. & R. 39. was, that if no 
 time be stipulated in the agreement for the sale in respect to the pos- 
 session ; but the vendee is permitted by the vendor to take possession 
 before the time agreed upon for the payment of the money ; the money 
 not being paid, the vendor forcibly regains the possession : held, that 
 the vendee was entitled to recover the possession without a previous 
 tender of the purchase money, on the ground, that the vendor having 
 put the vendee into possession before payment of the money, it amount- 
 ed to a waiver of the payment. But ejectment is in the nature of a bill 
 for specific performance ; but if the vendee declines paying the purchase 
 money ; and the time has elapsed, the vendor can recover the posses- 
 sion. The remedies for vendor and vendee, are mutual ; for ejectment 
 will lie against vendor by vendee on articles of agreement, after tender 
 of the purchase money. 4 Binn. 177. And where the vendee has 
 paid part of the money ; and declined payment of the residue, still the 
 vendor may recover in ejectment in such case. Martin r. Willink et 
 al. 7 S. & R. 297.
 
 2^2 O^ I'^'tE CONSEQUENCES OF 
 
 is on that account rescinded, jet the heir or devisee will, 
 it should seem, be entitled to the personalty as far as it 
 extends. And it has been decided, that if by reason of 
 the complication of the testator's affairs, the purchase- 
 money cannot be immediately paid, and the vendor for 
 that reason rescinds the contract, yet on the coming in 
 of the assets, the devisee of the estate contracted for may 
 compel the executor to lay out the purchase-money in the 
 purchase of other estates for his benefit(2/). 
 
 But if the heir not being entitled to have the estate 
 paid for out of the personal estate, actually obtain and 
 (*)apply the personal estate in payment of the purchase- 
 money, the persons entitled to the personal estate will 
 not be entitled to the land, but only to a charge on it for 
 the amount of the money wrongly applied(2^). 
 
 Any codicil executed according to the statute of frauds 
 will amount to a re-publication of a prior will of lands ; 
 and therefore, if a purchaser, previously to a contract, 
 make a general devise of all his lands, and after the con- 
 tract execute a codicil, according to the statute of frauds, 
 unless an intention appear not to affect it(a), the after- 
 purchased estate will pass under the devise in the will(121), 
 
 (y) Whittaker r. Whittaker, 4 Bro. C. C. 31; Broome ?;. Monck, 
 10 Yes. jun. 597. Vide infra. See Mark v. Willington, 1 Beatty, 128. 
 
 (r) Savage v. Carroll, 1 Ball. & Beatty, 265. See jwst, ch. 15, 
 s. 3. 
 
 (a) Lady Strathmore v. Bowes, 7 Term. Rep. 482 ; 2 Bos. & Pull. 
 500 ; Smith v. Dearmer, 3 You. & Jerv. 278. Monypenny r. Bristow, 2 
 Russ. & Myl. 117. 
 
 (121) The republication of a will, to be effectual to pass lands ac- 
 quired subsequently to the will, must be attended with all the legal for- 
 malities. Jachsonw Potter,^ Johns. Rep. 312. Jackson v. Hollo- 
 way, 7 Johns. Rep. 394. See Burke v. Young's Les. 2 Serg. & 
 Rawle, 387. In South Carolina, so far as regards personal property 
 acquired after the will, a republication need not be in writing, or in any 
 particular form ; but the rule in regard to real estate is otherwise. Cog- 
 dell V. Cogdell, 3 Des. 366. 
 
 (*181)
 
 THE CONTRACT. 
 
 223 
 
 although legacies only are given by the codicil, and no no- 
 tice is taken of the estate(6). 
 
 It has been thought that this rule would not apply 
 where the devise in the will is of " the estates of which 
 I am now seised ;" but the codicil makes the will speak 
 as from the date of the codicil, and therefore there seems 
 to be no solid ground for the supposed distinction. 
 
 And if a purchaser, previously to a contract, by a will 
 duly executed according to the statute, direct his after- 
 purchased lands to be conveyed to the uses of his will 
 and make a provision for his heir at law, and afterwards 
 die without republishing his will, and the after-pur- 
 chased lands devolve on the heir at law, equity will put 
 the heir to his election, and not permit him to take both 
 the descended estate, and the provision made for him by 
 the will(c). But to raise a case of election the words 
 (*)must be unequivocal ; and therefore a direction to exe- 
 cutors to sell whatever real estates the testator might die 
 possessed of, was held not to mean after-purchased 
 estates((/). And yet a devise and bequest of all my 
 estate, rent and effects, real and personal, which I shall 
 die possessed of, has since been decided to have that 
 operation(e). 
 
 In purchasing, therefore, of an heir at law who claims 
 an estate conveyed to his ancestor after the date of his 
 will, the purchaser should be satisfied of three points : 
 viz. 1st, That the contract was not entered into by the 
 testator previously to making his will. 2dly, That no 
 
 {!)) Barnes v. Crowe, 1 Ves. jun- 486 ; Pigolt r. Waller, 7 Ves. jun. 
 98 ; Goodtitle v. Meredith, 2 Mau. & Selw. 5 ; Hulme r. Heygate, 1 
 Merr. 285. 
 
 (c) Thellusson v. Woodford, MS. 13 Ves. jun. 209, affirmed in Dom. 
 Proc. ; and see Treat, of Powers, ch. 6, sect. 2, div. II. 
 
 {(^) Kack r. Kett, 1 Jac. 534. Johnson v. Telford, 1 Russ. & Myl. 
 244. 
 
 (c) Churchman r. Ireland, 1 Russ. & Myl. 250. 
 
 (*182)
 
 224 ^^ ^^^ CONSEQUENCES OF 
 
 codicil was afterwards executed by him, according to the 
 statute of frauds, by which the lands, although not in 
 contemplation, passed. And, 3dly, If the will affects to 
 pass all the estates which the vendor might thereafter 
 acquire, that the heir at law does not take any interest 
 under the will. 
 
 And here we may observe, that if a man make a dispo- 
 sition by will of all his copyhold estates generally, and 
 afterwards purchase other copyhold estates, and surrender 
 them to the uses declared by his will(/), or even to the 
 uses declared by his will of and concerning the same(g), 
 the after-purchased estates will pass under the general 
 devise, although the will was not re-published. Therefore, 
 where a copyhold estate has been surrendered to the use 
 of a will, and the purchaser is buying of the heir at law, 
 who claims in the absence of any devise subsequently to 
 the purchase by his ancestor, he must be satisfied that the 
 (*)estate did not pass under any general devise in a will 
 prior to the purchase. This point is not likely to arise, 
 since the act for rendering a surrender to a will unneces- 
 sary(/i). 
 
 From the time of the contract, the purchaser, and not 
 the vendor, being owner of the estate in equity, it follows, 
 that if a man devise his estate, and afterwards contract 
 for the sale of it, the devise will thereby be revoked in 
 equity (iX^22). 
 
 (/) Heylyn, v. Heylyn, Cowp. 130 ; Lofft, 604. This point has 
 since been so decided at nisi prius. 
 
 (g) Attorney-general v. Vigor, 8 Yes. jun. 256. See Smart v. Pru- 
 jean, 6 Ves. jun. 565 ; and the last ed. of Gilbert on Uses, n.(5), p. 72. 
 
 (/i) 55 Geo. 3. c. 192. 
 
 (i) Ryder v. Wager, and Cotter v. Lsyer, 2 P. Wms. 332, 623 ; 
 and see 2 Ves. jun. 436; Vawser v. Jeffrey, 16 Ves. jun. 619; 3 
 Russ. 479. 
 
 (122) It is a settled principle in equity, that if a conveyance be only 
 for a partial purpose, as to introduce a charge upon the estate, and does 
 
 (*183)
 
 THE CONTRACT. 
 
 225 
 
 And even where an estate was by a will directed to be 
 sold, and the money to be paid to certain persons, and the 
 testator himself afterwards sold the estate, it was held, 
 that the legatees were not entitled to the money produced 
 by the s'd\e(j). 
 
 If, however, an agreement be such as a court of equity 
 will not carry into execution against the representatives, 
 there seems ground to contend that it will not revoke the 
 will, because the agreement can operate as a revocation in 
 equity only ; and therefore, if equity will not sustain the 
 agreement in respect of which the will is held to be re- 
 voked, there appears to be no solid reason why the devise 
 of the estate should not take effect. In Onions v. Tyrer(^) 
 the Lord Chancellor held, that a second will, devising 
 lands to the same person as the former, and revoking all 
 former wills, but not duly executed, should never revoke 
 the former will so as to let in the heir ; nay, if by the 
 latter will the premises in question had been given to a third 
 person, it should never have let in the heir, in regard the 
 meaning of the second will was to give the second devisee 
 what it had taken from the first, without any consideration 
 (*)had to the heir ; and if the second devisee took nothing, 
 the first would have lost nothing. 
 
 These principles ought, perhaps, to be referred to the 
 words of the statute of frauds(/) ; but still as an agree- 
 ment is only an equitable revocation, the same reasoning 
 applies to the case before us. Where a man contracts for 
 the sale of his estate, he intends to increase his personal 
 
 {j) Arnald v. Arnald, 1 Bro. C. C. 401 ; 2 Dick. 646. Kenbold 
 V. Roadknight, 1 Russ. & Myl. 677 ; 1 Toml. 492. 
 {k) IP. Wms. 345. See 7 Ves. jun. 379. 
 (/) See Pow. Dev. 641. 
 
 not afiect the interest of the testator beyond that special purpose, it ia 
 only a partial revocation of the will ; and equity will hold the party a 
 trustee, not for the heir, but for the devisee. Livingslon v. Livingslont 
 3 Johns. Ch. Rep. 16.5. per KENT. 
 
 VOL. 1. 29 (*184)
 
 226 OF THE CONSEQUENCES OF 
 
 estate, and not to benefit his heir ; and if the Court will 
 not carry the agreement into a specific execution for the 
 benefit of the personal estate, " the personal estate takes 
 nothing, and the devisee can have lost nothing." 
 
 In the two cases(m) in which it has been holden, that 
 an agreement will revoke a will in equity, it makes a term 
 of the proposition, that the agreement amounts in equity 
 to a conveyance. And it should seem that Lord Eldon 
 was of this opinion, for in Knollys v. Alcock(7i), where it 
 was contended that an agreement in equity is a revocation 
 only where it can b^ performed, his Lordship did not 
 deny the rule as stated, but showed, that the agreement 
 in that case was such as equity would perform(o), (I) ; 
 and in Clynn v. hkt\er(p), Lord Mansfield laid it down, 
 that covenants had never been allowed to be revocations, 
 unless ivhere the covenantee has a right to a specific per- 
 formance. 
 
 (*) Whether an abandonment of an agreement will prevent 
 the contract from operating as a revocation of a prior will, 
 seems to be a more doubtful point. In the case of Knollys 
 V. Alcock, before referred to, it was also contended, that 
 an agreement which was abandoned was not a revocation 
 in equity ; but Lord Eldon said, he did not admit, that if 
 there is an agreement in equity which at the moment is 
 a completely operative revocation, a subsequent abandon- 
 
 (m) Ryder v. Wager, and Cotter v. Layer, ubi sup. 
 
 (n) 7 Ves. jun. 658. There was an appeal from the decision in this 
 case, which has been compromised ; and see Mayor v. Gowland, 2 
 Dick. 563. See also 2 Ves. jun. 436. 
 
 (0) See Savage v. Taylor, C ases T. Talb. 234. 
 ip) 1 Blackst. 345. ■* 
 
 (1) It appears by an abstract of the title to the estate, in respect of 
 which the litigation in Savage r. Taylor was commenced, that the heir 
 at law of the testator, in his answer to the bill of the devisee, insisted 
 that if the will was originally valid, yet it was revoked by the articles 
 for sale, although the Court ought not to carry them into execution, 
 
 (*186)
 
 THE CONTRACT. 
 
 227 
 
 ment will of necessity set up the will. His Lordship 
 added, that he did not say whether it would be so or not, 
 for he was of opinion he could not raise the question in the 
 case before him, as the agreement was never abandoned. 
 Sir Wm. Grant upon the same point said, that he very 
 much doubted whether the abandonment of the contract 
 in the testator's life-time would set up the will without 
 a republication. But where the will is revoked at the testa- 
 tor'^s death by the contract, of course no subsequent event 
 can render the will operative and effectual(^). In the first 
 case in the books(?'), in which the question arose whether 
 a covenant to convey an estate devised should operate 
 at law as a revocation of the will, it was holden, that such 
 a covenant without more, was not any revocation of the 
 will ; because perhaps the devisor's intention would alter 
 before performance of the covenant. At law, therefore, 
 a contract does not revoke the will ; but a conveyance in 
 pursuance of the contract would of course operate as 
 a revocation, or to speak more technically, as an ademption. 
 Now it may be contended, that the same rule must pre- 
 vail in equity, and that a contract for sale ought not to 
 affect the validity of a prior will, until it is carried into 
 execution, or, which in equity is tantamount to a convey- 
 ance, until the Court decree a specific performance of it. 
 (*) While an agreement rests in fieri, and the validity of it 
 has not been ackno\A lodged by a decree, it seems equitable 
 that the owner should be at liberty, with the concurrence 
 of the other party, to alter his mind. Indeed in the ab- 
 sence of intention there seems to be no weighty distinction 
 between an agreement which has been abandoned, and 
 an agreement which equity will not perform. If a man 
 make a second will without expressly revoking the first, 
 and afterwards cancel the second will, the first is revived, 
 
 {q) Bennett v. Lord Tankerville, 19 Ves. 170. 
 
 ()•) Montague v. Jefferies, 1 Ro. Abr. 615, (P.) pi. 3. 
 
 (*186)
 
 228 ^^ '^^^ CONSEQUENCES OF 
 
 the second will being considered only intentional (5) ; 
 and although it is true that a will is ambulatory till the 
 death of the testator, yet the same ground may be taken 
 in support of a will impliedly revoked by an agreement 
 afterwards abandoned. Why should not a mere agree- 
 ment be deemed ambulatory till it is completed, when it 
 is clear that the parties may rescind the agreement, and 
 the estate of the devisor is not altered so as to effect 
 a revocation at law ? 
 
 The seller after the contract and before the convayance 
 is not considered so absolutely a trustee as to prevent the 
 estate from passing by a devise by him, subsequently to tlie 
 contract, of his real estate to trustees to sell(^). But where 
 an estate under contract was devised expressly by name, 
 it was held that the legal estate only passed to enable the 
 devisee to carry the contract into execution, and that the 
 devisee was not entitled to the purchase-money benefi- 
 cially (i^). The principle of this decision will necessarily 
 furnish many exceptions to the rule laid down in the case 
 of Wall V. Bright. 
 
 When an estate is contracted to be sold, it is in equity 
 (*)considered as converted into personalty from the time 
 of the contract(I) ; and this notional conversion takes 
 
 (s) Goodright v. Glazier, 4 Burr. 2512. 
 
 {t) Wall V. Bright, 1 Jac. & Walk. 490. 
 
 (h) Knollys v. Shepherd, 1 Jac. & Walk. 499, cited. This case 
 was affirmed in 1825 in Dom. Proc. MS. The decision depended up- 
 on the particular terms of the devise. 
 
 (I) The decision in the case of Foley v. Percival, 4 Bro. C. C. 419, 
 seems to depend on the personal estate having been charged with the 
 legacies ; and the dictum of the Lord Chancellor, that an estate con- 
 tracted to be sold, is not converted into personalty, where it will dis- 
 appoint the testator's intention as to the payment of legacies charged 
 upon the estate by his will, appears not to be warranted by eilher 
 principle or authority. The case of Comer v. Walkley, 2 Dick. 649, 
 is misreported. See post, ch. 9. 
 
 ^*187)
 
 ^ THE CONTRACT. 229 
 
 place, although the election to purchase rests merely with 
 the purchaser(v)(123). 
 
 Thus in a case before Lord Kenyon, at the Rolls(a;)j 
 Whitmore demised to Douglas for seven years, with a 
 covenant, th^tt if the tenant, after the 29th of September 
 1761, and before the 29th of September 1763, should 
 choose to purchase the inheritance for 3,000/., Whitmore 
 would convey to him(II). In 1761, before any election, 
 Whitmore died, and left all his real estate to Bennett in 
 fee, and all his personal estate to Bennett and his sister 
 equally. In 1765, before the time mentioned. Waller, 
 who purchased the lease and benefit of the agreement 
 from Douglas, called on Bennett to convey for 3,000/. ; 
 which conevyance was made in consideration of that sum. 
 Afterwards the sister and her husband filed a bill against 
 the representative of Bennett, claiming a moiety of the 
 3,000/. and interest, and it was decreed accordingly. 
 
 This case has been recently followed by Lord Eldon(?/). 
 But it must be observed, that until the option is declared, 
 the rents belong to the heir or devisee. 
 
 Upon the same principle it has been determined, that 
 
 (v) Lawes v. Bennett, 7 Ves. jun. 436 ; 14 Ves. jun. 596, cited ; 
 S. C. cited, 16 Ves. 253, 254, nom. Douglas v. "VVhitrong ; Ripley v. 
 Watcrworth, 7 Ves. jun. 425. 
 
 (.r) Whitmore's case, tibi sup. 
 
 (y) Townley v. Bedvvell, 14 Ves. jun. 19. 
 
 (II) As to rights of pre-emption given by will, and the mode in 
 which they will be carried into execution, see Earl of Radnor v. Shafto, 
 11 Ves. jun. 448 ; as to a right of pre-emption of timber, which a lessee 
 is authorized to cut down, see Goodtitle v, Saville, 15 East, 87. 
 
 (123) See Craig v. Leslie, 3 Wheat. 563, 677. Postell v. PosleWs 
 Exrs. 1 Des. 173. And where the whole beneficial interest in the 
 land in one case, or in the money in the other, belongs to the heir, or 
 devisee, as the case may be, a court of equity will permit him to take 
 the money or the land, at his election, if he elect before the conversion 
 is made. Craig v. Leslie^ 3 Wheat. 578.
 
 230 OF THE CONSEQUENCES OF 
 
 (*)if a man having a timber estate, agree to sell a given 
 quantity per annum, to be chosen by the buyer, although 
 the owner die, and the option is in the buyer, yet the tim- 
 ber cut after the owner's death, however large in quanti- 
 ty, will be part of his personal estate(2:). 
 
 The rule established by these decisions must frequently 
 subvert the vendor's intention ; where, therefore, a vendor 
 intends the estate, as between his real and personal re- 
 presentatives, to be deemed real estate, a declaration to 
 that effect should be inserted in the agreement for sale. 
 
 Disputes also often arise between the real and personal 
 representatives, where a person purchases an equity of 
 redemption ; the real representative mostly claiming to 
 have the mortgage money paid off out of the personal 
 estate, and the personal representative resisting the de- 
 mand. Unless the mortgage money form part of the 
 consideration money for the estate, or the purchaser, by 
 communication with the mortgagee, clearly take the 
 mortgajre debt on himself, as between his heir and exe- 
 cutor, it will be considered a charge on the land ; the 
 mere covenanting with the mortgagor to pay the debt, 
 will not make it his personal debt ; and consequently his 
 personal estate, as between the heir and executor, will 
 only be the auxiliary fund for payment of it(f«)(124). 
 
 In cases of this nature equity always adverts to the 
 intention of the purchaser, and disputes on this subject 
 may therefore be prevented, by the insertion of a short 
 declaration in the purchase-deed, whether the personal 
 estate of the purchaser shall or shall not, as between his 
 
 {z) See 7 Ves. jun. 437. 
 
 (a) On this point see Evelyn v. Evelyn, 2 P. Wras. 659 ; and the 
 cases in Mr. Cox's note ; to which add, Hamilton v. Woiley, 2 Ves. 
 jun. 62 ; Woods v. Huntingford, 3 Ves. jun. 128 ; Buller v. Buller, 5 
 Ves. jun. 517 ; Waring v. Ward, 5 Ves. jun. 670 ; and 7 Ves. jun. 332 ; 
 and Lord Oxford v. Lady Rodney, 14 Ves. jun. 417. 
 
 (124) Duke of Cumberland v. Coclrington, 3 Johns. Ch. Rep. 229. 
 
 (*188)
 
 THE CONTRACT. 
 
 231 
 
 heir and executor, be the primary fund for payment of 
 the mortgage money. 
 
 (*)But (to return to the point under consideration) if 
 upon the death of the vendor a title cannot be made, or 
 there was not a perfect contract, or the Court should think 
 the contract ought not to be executed, in all these cases 
 there is no conversion of real estate into personal in consi- 
 deration of the Court, upon which the right of the execu- 
 tor on the one hand, and of the heir or devisee on the 
 other, depends ; and therefore the estate will go to the 
 heir at law of the vendor, in the same manner as if no 
 contract had been entered into(6), and the heir or devisee 
 of the purchaser will not be entitled to the money agreed 
 to be paid for the lands, or to have any other estate bought 
 for him(c). For although the purchaser himself, if alive, 
 might elect to take the estate with the bad title(J), yet 
 where he is dead the Court cannot speculate upon what 
 he would or would not have done ; but, in these cases, 
 the inquiry must be, whether at his death a contract 
 existed, by which he was bound, and which he would 
 be compelled to perform. That alone can give the heir 
 of the purchaser a right to call for the personal estate to 
 be applied, or to the personal representative of the vendor, 
 a right to call upon his heir. The question must be the 
 same, whether a purchase or a sale is insisted on. Was 
 the ancestor himself bound ? Was there such an aeree- 
 ment as converts the real estate into personal, or the 
 
 (6) Lacon v. Mertins, 3 Atk. 1 ; Attorney-general v. Day, 1 Ves. 
 218; Buckmaster V. Hanop, 7 Ves. jun. 341; and see S Ves. jiin. 
 274; Rose I'. Cunynghame, 11 Ves. jun. 560; Collier v. Jenkins, 1 
 Yo. 295. 
 
 (c) Green v. Smith, 1 Atk. 573 ; Broome v. Monck, 10 Ves. jun. 
 597 ; Savage v. Carrol, 1 Ball & Beatty, 265. Vide supra. 
 
 {d) Western v. Russell, 3 Ves. & Bea. 187. 
 
 (*189)
 
 232 °^ '^'f^'^ CONSEQUENCES OF 
 
 personal estate into real ?(e)(I). On this ground it has 
 (*)been decided, that where a man had a right of pre- 
 emption of an estate under a will, and did not accept the 
 offer in his life-time, or denote any intention by his will 
 to do so, there was no subsisting contract, by virtue of 
 which the right passed to the real representative, so as 
 to enable him to call upon the personal estate to pay for 
 the estate, as if it had been contracted ioY(f). So where 
 upon a parol treaty, the purchaser filed his bill for a 
 specific performance of it, and the vendor submitting to 
 perform it, a decree was made, that the purchaser should 
 pay the money into the bank by a given day, or the bill 
 should be dismissed ; and the purchaser paid the money 
 according to the decree : in a question between his heir 
 and devisee it was determined, that the estate did not 
 pass by a general devise in his will, which was made 
 prior to the payment of the money(^). It will be ob- 
 served, that in this case, neither of the parties was bound 
 at the time the bill was filed ; and if the purchaser had 
 not paid the money, his bill would have been dismissed, 
 and, in that event, no contract would ever have existed. 
 It was therefore clear, that the inception of the contract 
 was upon payment of the money, and the will, therefore, 
 
 (c) Per Sir Wm. Grant, 7 Ves. jun. 344, 345. 
 (/) Earl of Radnor v. Shafto, 11 Ves. jun. 448. 
 (g-) Gaskarth V. Lord Lowther, 12 Ves. jun. 107. 
 
 1 
 
 (I) Vide supra, p. 129. Note, in Potter v. Potter, 1 Ves. 438, a bill 
 was filed to compel execution of the parol agreement in the testator's 
 life-time ; his agent gave a note for payment of part of the purchase 
 money, and let the estate as he pleased. Possession of the estate must, 
 therefore, have been delivered to him. And the Master of the Rolls 
 expressly said, that the agreement was so far carried into execution, 
 even before the will, as to supply the want of writing. This case, 
 therefore, like the others, only proves, that a binding contract in the 
 testator's life-time will be enforced. 
 
 (*190)
 
 THE CONTRA,CT. ^$3 
 
 having been made before the contract, could not affect 
 the estate. 
 
 But if an estate directed to be bought, but not actually 
 contracted for, is not, or cannot be bought, yet the money 
 must be laid out in other lands, for the benefit of the 
 (*)devisee(A). And where a testator intends that the de- 
 visee of the contracted estate shall have another estate of 
 equal value, in case a good title cannot be made to the 
 one contracted for, an express declaration to that effect 
 should be inserted in the will. 
 
 By this time we must have observed, that the foregoing 
 rules, as to the conversion of the estate, apply to those 
 cases only where a court of equity will decree a specific 
 performance : for if equity will not interfere, and the 
 vendee be left to his remedy at law, the rules of law^, and 
 not those of equity, must then prevail, and consequently 
 neither the vendor nor his heir would be considered as 
 a trustee for the purchaser, but would only be subject to 
 an action for breach of contract. 
 
 SECTION II. 
 Of Specific Performance. 
 
 The preceding observations lead us to inquire, in what 
 cases a court of equity will decree a specific performance ; 
 which, for the purposes of this work, may be comprised 
 under two heads. First, with respect to the vendor : 
 Secondly, with respect to the agreement itself. 
 
 I. First, then, if a man, seised in fee-simple, or pur 
 
 (h) Whittaker r. Whittaker, 4 Bro. C. C. 31 ; and see 2 Atk. 369 ; 
 Broome v. Monck, 10 Yes. jun. 597. Vide supra. 
 
 VOL. 1. 30 (*191)
 
 234 ^^ THE CONSEQUENCES OF 
 
 autre vie(i), contract for the sale of his estate, and die 
 before the conveyance is executed, his heir at law will 
 be decreed to perform the agreement in specie, although he 
 covenanted for himself only, and not for his heirs(/c)(125). 
 (*)It was a point of great controversy, whether the 
 7 Anne, c. 19, enabled an infant heir at law to convey in 
 performance of a contract made by his ancestor. It is now 
 sufficient to refer to the cases(/), for that act was repealed 
 by the 6 Geo. 4, c. 74 ; but even the latter act was held 
 not to embrace constructive trusts(m). The law now 
 depends upon the 1 W. 4, c. 60, which enables con- 
 veyginces to be made by committees of trustees and by 
 lunatics, although not found so by inquisition, and by 
 infant trustees ; and(n) it provides that every person, 
 being in other respects within the meaning of the act, 
 shall be, and be deemed to be, a trustee within the 
 act, notwithstanding he may have some beneficial estate 
 or interest in the same subject, or may have some duty as 
 trustee to perform. And it expressly enacts(o), that 
 where any land, shall have been contracted to be sold, 
 and the vendor, or any of the vendors, shall have died, 
 either having received the purchase-money for the same,, 
 or some part thereof, or not having received any part 
 thereof, and a specific performance of such contract, either 
 
 (i) Stevens v. Baily, 2 Freem. 1^9, cited ; Nels. Cha. Rep. 106, 
 reported ; see Anon. 2 Freem. 155. 
 
 (k) Gell 1). Vermedum^ 2 Freem. 199.. 
 
 (/) See Ex parte Vernon, 2 P. Wms. 549 ; Sikes v. Lister,^ 5 Vin> 
 Abr. 641, pi. 28; Goodwin v. Lister, 3 P. Wms. 3S7 ; S. C. MS.; 
 Hawkins v. Obeen, 2 Ves. 659 ; Fearne's Posthima, 236 ; Jerdon v. 
 Forster, 1 Sand, on Uses, 283, cited, 3d edit. Ex parte Janaway, 7 
 Price, 679 ; Smith v. Hibbard, 2 Dick. 730 ; Onehy v. Price, Fearne's 
 Post. 239. 
 
 («t) Dew V. Clarke, 4 Russ. 611. King v. Turner, 2 Sim. 550. 
 
 (n) Sec. 16. 
 
 (o) Sec. 16. 
 
 (125) See Glaze v. Dratjton, 1 Des. 109. 
 (*192)
 
 THE CONTRACT. 235 
 
 wholly or as far as the same remains to be executed, or as 
 far as the same by reason of the infancy can be executed, 
 shall have been decreed by the Court of Chancery(I), in 
 the life-time of such vendor, or after his decease, and 
 where one person shall have purchased in the name of 
 (*)another, but the nominal purchaser shall on the face of 
 the conveyance appear to be the real purchaser, and there 
 shall be no declaration of trust from him, and a decree 
 of the Court, either before or after the death of such 
 nominal purchaser, shall have declared him to be a trustee 
 for the real purchaser, then in every such case the heir of 
 such vendor, or of such nominal purchaser or his heir, 
 in whom the premises shall be vested, shall be a trustee 
 for the purchaser within the act. 
 
 The act then provides (;?), that where any land shall 
 have been contracted to be sold, and the vendor or any 
 of the vendors shall have died, having devised the same 
 in settlement, so as to l)e vested in any person for life or 
 other limited interest, with any remainder, limitation or 
 gift, and which may not be vested, or may be vested in 
 some person from whom a conveyance of the same cannot 
 be obtained, or by way of executory devise, and a specific 
 performance of such contract, either wholly or so far as 
 the same remained to be executed, shall have been decreed 
 by the Court, it shall be lawful for the Court to direct 
 such tenant for life, or other person having a limited 
 interest, or the first executory devisee thereof, to convey 
 the fee-simple or other the whole estate contracted to be 
 sold to the purchaser, or in such manner as the Court 
 shall think proper. The act is then((/) extended to other 
 cases of constructive trusts, but is not to extend to 
 
 (>) Sec. 17. 
 («/) Sec. 18. 
 
 (I) The powers are extended to the Court of Exchequer, &c. &c. 
 Sec. 26. 31. 
 
 (*in3)
 
 Qog OF THE CONSEQUENCES OF 
 
 a vendor, except in any case before expressly provided 
 
 for. 
 
 An agreement by a man seised in tail is, of course, 
 binding on himself, but it cannot be enforced against the 
 issue in tail, if the entail was not effectually barred(r), 
 (*)although the ancestor covenanted for that purpose(5), 
 and received part, or even the whole of the purchase- 
 money, and a decree was made against him, and he died in 
 contempt, and in prison, for not obeying the decree(^) (I) : 
 the ground of which determinations is, that the issue in 
 tail claim per formam doni, from the creator or author of 
 the estate tail ; and therefore, though in the power of 
 tenant in tail by a particular conveyance, that not being 
 done, the Court cannot take away the right they derive, 
 not from the tenant in tail, but from the author of the 
 estate tail(w). 
 
 A distinction has, however, been taken, where the an- 
 cestor is only equitable tenant in tail ; and the Court will 
 in that case, it is said, relieve against the issue(i'), because 
 equitable estates tail are mere creatures of the Court, and 
 not within the statute de donis ; and there certainly seems 
 ground to contend that the Court would compel a specific 
 performance against equitable issue in tail, where a decree 
 has been made in the ancestor's life-time. But as late 
 
 (r) See 3 & 4 W. 4, c. 74, which abolished fines and recoveries, 
 j)ost. ch. 7. 
 
 (s) Cavendish v. Worsley, Hob. 203 ; Ross v. Ross, 1 Cha. Ca. 
 171 ; Sale v. Freeland, 2 Ventr. 350 ; Jenkyns v. Keymes, 1 Lev. 
 237 ; which have overruled the dictum in Hill v. Carr, 1 Cha. Ca. 294. 
 
 (/) Powell V. Powell, Prec. Cha. 278 ; "Weal v. Lower, 2 Vern. 306, 
 cited ; Sangon v. Williams, Gilb. Eq. Rep. 104, cited ; and see 1 Ves. 
 224. 
 
 («) See 2 Ves. 634. 
 
 (v) Norcliff V. Warsley, 1 Cha. Ca. 234 ; Sayle v. Freeland, 2 
 Ventr. 350 ; and see 1 Pow. Contr. 126. 
 
 (I) But now by 1 W. 4, c. 36, s. 15, Rule 15, the Court may itself 
 execute the decree against the tenant in tail in custody for contempt. 
 
 f*]94)
 
 THE CONTRACT. 
 
 237 
 
 authorities(t(^) had settled that an equitable estate tail in 
 freeholds could not before the 3 & 4 W. 4, c. 74, be 
 (*)barred by a mere deed, but only by a fine or recovery, it 
 seems that equity could not consider such issue to be 
 bound by a mere agreement entered into by their an- 
 cestor. 
 
 The same observations seemed to apply to legal and 
 equitable estates tail in copyholds, for a legal entail 
 could only before the late act have been barred ac- 
 cording to the custom of the manor of which the copy- 
 hold estate was holden ; and perhaps the better opinion 
 was, that the same steps must have been taken to bar an 
 equitable estate tail in copyholds, as must have been 
 pursued in the case of a legal entail. Lord Hardwicke, 
 however, appears to have thought(a;) that a mere sur- 
 render was in every case sufficient to bar an equitable 
 estate tail in copyholds ; but the contrary opinion was 
 entertained by the Profession, and appeared to be autho- 
 rized by a case cited in several books from the papers of 
 the late Mr. PowelI(?/), in which it was held, that a 
 covenant by a tenant in tail in equity of a copyhold, in 
 his marriage settlement, to surrender his copyholds to 
 uses in strict settlement, was not of itself sufficient to dock 
 the equitable entail ; for if such an entail be created, a 
 recovery in the court baron is necessary to dock it ; it 
 being a rule, that the same steps must be taken to bar an 
 equitable estate in tail, as would be requisite to bar it, were 
 
 (w) Legate v. Sewell, I P. Wms. 91 ; Harvey v. Parker, 10 Vin. 
 Abr. 266, pi. 6, affirmed in Dum. Proc. ; Kirkham v. Smith, Ambl. 
 318; Radford v. Wilson, 3 Atk. 815 ; Boteler r. Allington, 1 Bro. C. 
 C. 72 ; Burnaby v. Griffin, 3 Ves. jun. 266 ; and see Fletcher v. Toi- 
 let, 5 Ves. jun. 13. 
 
 {x) Radford v. Wilson, 3 Atk. 315; and see the judgment of Lord 
 Chancellor Apsley, in Grayme v. Grayme, 1 Watk. Cop. 180 ; and 
 see Pow. Contr. 126. See Pullen v. Lord Middleton, 9 Mod. 483. 
 
 {y) Hale's case, Ch. Hth Dec. 1764; and see Roe v. IjOwc, 1 
 Henry Blackst. 446. 
 
 (*195)
 
 238 ^^ ^^^ CONSEQUENCES OF 
 
 it a legal estate tail(z),(l). Indeed the power of tenants 
 (*)in tail, to bind their issue, ought to be the same, whether 
 the estate be freehold or copyhold, and whether the entail 
 be legal or equitable ; the analogy preserved between 
 legal and equitable estates tail, and between limitations 
 in freehold and copyhold estates, should be adhered to in 
 this instance. 
 
 But now, by the 3 & 4 W. 4, c. 74, a surrender is made 
 a sufficient bar of even a legal estate tail, and equitable 
 tenants in tail may bar the entail either by surrender or 
 by deed, accompanied by the solemnities required by the 
 act(«). But in each case the provisions of the act 
 must be complied with, or the issue will not be bouiid. 
 
 And it is expressly enacted, that no disposition by a 
 tenant in tail resting only in contract, either express or 
 implied or otherwise, and whether supported by a valu- 
 able consideration or not, shall be of any force(6). 
 
 Where by the custom of a manor, and it is the custom 
 of most manors, a tenant is complete master of his estate, 
 independently of his wife, and can by his own act alone 
 bar her free bench ; an agreement by him for sale of his 
 estate will be enforced against the wife, if he die before it 
 is carried into execution (c). 
 
 But an agreement for sale of a freehold estate could not 
 before the late act have been carried into execution 
 
 (z) And see 1 Walk. Copyh. 181 ; 1 Preston on Convey. 155. 
 
 (a) Sec. 60-54. 
 
 (6) Sec. 40. 
 
 (c) Hinton V. Hinton, 2 Ves. 631, 638; Ambl. 277; Brown v. 
 Raindle, 8 Ves. jun. 256, which overruled Musgrave v. Dashvvood, 2 
 Vern. 45, 63. 
 
 (I) Note ; this appears to be an extract from Mr. Booth's opinion on 
 this case. The case itself appears to have been decided on the ground 
 that the remainder-man claiming in equity under the covenant for the 
 settlement was a mere volunteer. 
 
 (*196)
 
 THE CONTRACT. 
 
 239 
 
 against a widow entitled to dower. The distinction was 
 founded upon this ground ; that a husband had it in his 
 power, during his life, to sell his copyhold estates, and 
 thereby bar his wife's expectancy ; but if a wife's right 
 to dower once attached on a freehold estate, no act of the 
 husband's alone can divest it. By the late act(J), how- 
 ever, (*)a wife's dower is put altogether into the hus- 
 band's power, and it is specially provided, that no widow 
 shall be entitled to dower out of any land which shall have 
 been absolutely disposed of by her husband in his life- 
 time, and that all partial interests, and all charges created 
 by any disposition of a husband, and all contracts to which 
 his land shall be subject, shall be valid as against the 
 right of his widow to dower. 
 
 Equity will enforce an agreement by a joint tenant for 
 sale of his share against the survivor, if the articles amount 
 to an equitable severance of the jointure(€) : and a cove- 
 nant to sell, though it does not sever the joint-tenancy at 
 law, will in equity(f). 
 
 An agreement by a feme covert for sale of her estate, 
 cannot be enforced either at law or in equity(^)(126), un- 
 less the estate be settled to her separate use, so as to enable 
 
 ((?) 3 & 4'W. 4, c. 105, s. 4, 5. 
 
 (e) Musgrave r. Dashwood, 2 Vern. 45, 63. See 2 Ves. 634. 
 (/) See 3 Yes. jun. 257 ; Fiewen v. Relfe, 2 Bro. C. C. 220. 
 (g) Emery r. Wase, 5 Ves. jun. 846. 
 
 (126) See Livingston v. Livingston, 2 Johns. Ch. Rep. 537. A 
 feme coveit may mortgage her real estate for her husband's debts. He- 
 'viaresl v. Wrjnkoop, 3 Johns. Ch. Rep. 129. As to the power of a 
 feme covert to sell or incumber her separate estate, see Euing v. Smith, 
 3 Des. 417, 429 ; where the English decisions on this subject, from 
 1723 to 1808, are reviewed. A majority of the court considered the 
 question as res integra, and that the decisions of the English chancery 
 had extended the power of married women over their separate estates 
 to a greater length than they were willing to go. See also, as to this 
 question, J\Iethodist Episcopal Church v. Jaques, 3 Johns. Ch. Rep. 
 77, 86. See Dibble v. Hulton, 1 Day, 221. 
 
 (*197)
 
 240 ^^ THE CONSEQUENCES OF 
 
 her to dispose of it as if she were sole(127) ; nor will an 
 agreement by her husband bind her(/i). Of the incapacity 
 of a married woman, or her husband, to bind her real 
 estate, unless [formerly] by a fine or recovery, there is a 
 striking instance in the year books in the reign of Edward 
 the fourth(2). A woman cestui que use and her husband 
 joined in the sale of her estate ; the wife received the 
 money, and she and her husband begged her feoffee to 
 convey the estate to the purchaser, which he accordingly 
 did. The husband died, and then the wife filed a bill 
 against the feoffee for a breach of trust. The cause was 
 (*)heard in the Exchequer Chamber, before the Chancel- 
 lor and the judges of both benches, who held, that the sale 
 was in fact the sale of the husband ; that the receipt of 
 the money by the wife was immaterial, and the sale was 
 void ; that the trustee was answerable for the breach of 
 trust ; and as the purchaser knew he was buying a marri- 
 ed woman's estate, that the wife might recover the estate 
 from him. 
 
 If, however, a husband agree to convey his wife's 
 estate, he will, according to some cases, be compelled to 
 perform the agreement in specie(k) ; because it has been 
 
 (h) See Daniel v. Adams, Ambl. 495 ; 1 Eq. Ca. Abr. 62, pi. 2, side 
 note, which correct the dictum in Baker v. Child, 2 Vern. 61 ; but see 
 Martin v. Mitchell, 3 Swanst. 413. It was said by Murray, Solicitor- 
 General, and agreed to by Lord Hardwicke, that there was no decree 
 in Baker r. Child, in Reg. Lib., but it was referred to arbitration. 
 
 (i) 7 E. IV. 14, b. 
 
 {k) Hall V. Hardy, 3 P. Wms. 187 ; Barrington v. Home, 2 Eq. Ca. ' 
 Abr. 17, pi. 7 ; Morris v. Stephenson, 7 Ves. jun. 474. See Wheeler 
 V. Newton, Prec. Cha. 16 ; Haddon's case, Toth. 205 ; and see Griffin 
 V. Taylor, ib. 106, edit. 1649. 
 
 (127) See Jaques v. Methodist Episcopal Church, on appeal, 17 
 Johns. Rep. 648. But see same case, 1 Johns. Ch. Rep. 450. and 3 
 Johns. Ch. Rep. 77. Bradish v. Gibbs, 3 Johns. Ch. Rep. 623. Be- 
 thune V. Beresford, 1 Des. 174. 
 
 (*198)
 
 THE CONTRACT. 
 
 241 
 
 said, it is to be presumed that the husband, where he 
 covenants that his wife shall levy a fine, has first gained 
 her consent for that pur]josc(/) ; but this does not seem 
 to be the true ground, for although the wife swear by her 
 answer that she never assented to the agreement, yet the 
 husband will not be let ofr(wO. The principle upon which 
 the Court proceeds, seems to be this, that if a person un- 
 dertakes that another shall do a certain act, he is bound 
 to procure him to perform it ; and, therefore, where a 
 father covenanted that his son, who was then under age, 
 should convey lands to a purchaser, he was decreed to 
 procure the son to convey on his coming of age(?i), (I). 
 
 (*)There have been instances of committing the hus- 
 band to the Fleet, until the wife should convey the est-ate ; 
 but if he should make it appear, that he could not prevail 
 on his wife to join, it seems that he must of necessity be 
 discharged, upon placing the vendee in the same situation 
 as if the agreement had never been executed(o). 
 
 In a late casefp) Lord Eldon seemed to be of opinion 
 that if this alarming doctrine were perfectly res integra, 
 he should hesitate before he would hold the husband 
 bound to procure the wife to join. His Lordship said, 
 that if a man chooses to contract for the estate of a married 
 
 (/) Winter r. Devrenx, 3 P. Wms. 190, n. (B). 
 
 (»n) Withers v. Pinchard, 7 Vcs. jun. 475. cited. 
 
 {n) Anon. 2 Cha. Ca. 53. 
 
 (o) See note to Hall v. Hardy, 3 P. Wnis. 187 ; Ortread v. Round, 
 4 Yin. Abr. 303, pi. 4 ; S Vcs. jun. 510 ; and Emery v. Wase, 6 Yes. 
 jun. 846 ; and see Sedgwick r. Hargrave, 2 Yes. 57. 
 
 (p) Emery v. Wase, 8 Yes. jun. 505 ; and see 16 Yes. jun. 367 ; 
 Howell V. George, 1 Madd. 1. 
 
 (T) And it is no plea to an action at law for breach of the agrec- 
 ment, to say, that the third person had nothing to do with it, or no estate 
 in it, for the defendant hath undertaken to procure it, and must at 
 his peril. — Staughton v. Hawley, M. 1 W. and M. Rot. 662, B. R. judg- 
 ment in H. after. MS. 
 
 VOL. I. 31 (*199)
 
 242 
 
 OF THE CONSEQUENCES OF 
 
 woman, or an estate subject to dower, he knows the pro- 
 perty is her's altogether, or to a given extent. The pur- 
 chaser is bound to regard the policy of the law ; and what 
 right has he to complain, if she who, according to law, 
 cannot part with her property but by her own free will, 
 takes advantage of the locus pcenitentice : and why is he 
 not to take his chance of damages against the husband ? 
 And after showing the absurdity which must arise by ad- 
 hering to the contrary doctrine, his Lordship added, that 
 there was difficulty enough to make him pause, before he 
 should follow the two last authorities ; and he was not 
 sure, whether it was not proper to have the judgment of 
 the House of Lords, to determine which of the decisions 
 on this point ought to bind us. 
 
 And it now seems perfectly clear, that this jurisdiction 
 is to be very sparingly exercised(I), and that equity will 
 (*)eagerly seize on any reasonable ground as a bar to the 
 aid of the Court(^). Indeed in a late case(r) in the Court 
 of Common Pleas, where an action was brought on a cove- 
 nant by a husband, that he and his wife would levy a fine, 
 and he could not procure her concurrence, the learned 
 Chief Justice said, that the covenant upon which the 
 action was brought was such as the Court of Chancery 
 would not now enforce ; and he added, that nothing could 
 be more absurd than to allow a married woman to be 
 compelled to levy a fine, through the fear of her hubsand 
 being sued and thrown into gaol, when the general prin- 
 ciple of the law is, that a married woman shall not be 
 
 (q) See Ortiead v. Round, 4 Vin. Abr. 203, pi. 4 ; Emery v. Wase, 
 ubi sup. ; Daniel v. Adams, Ambl. 495. 
 
 (r) Davies v, Jones, 1 New. Rep. 267 ; and see Maitin v. Mitchell, 
 3 Swanst. 425. 
 
 (I) Upon this expression Lord Eldon observes, that certainly it is 
 very satisfactory to be informed, that it is and it is not to be done, 8 
 Ves. jun. 616. 
 
 (*200)
 
 THE CONTRACT. 
 
 243 
 
 compelled to levy a fine. This observation of Lord Chief 
 Justice Mansfield must have considerable influence on 
 this subject, although, as we have seen, it is not settled 
 that equity will, in every case, refuse to compel the hus- 
 band to procure his wife's concurrence. 
 
 An agreement by a lunatic cannot of course be carried 
 into a specific execution ; but the change of the condition 
 of a person entering into an agreement by becoming 
 lunatic, will not alter the right of the parties ; which will 
 be the same as before, provided they can come at the 
 remedy. As if the legal estate is vested in trustees, a 
 court of equity will decree a specific performance ; and 
 the act of God will not change the right of the parties ; but 
 where the legal estate was vested in the lunatic himself, 
 that would formerly have prevented the remedy in equity, 
 and left it at law(5) ; unless the purchaser was satisfied 
 with the enjoyment of the estate which a decree would 
 give him, and chose to encounter the inconvenience of 
 leaving the legal estate outstanding in the lunatic, in 
 (*)vvhich case a a specific performance would have been de- 
 creed in his favor(^). But this anomaly is now removed 
 by the 1. W. 4, c. 6o(u), which provides, that where any 
 person shall have contracted to sell an estate, and shall 
 afterwards become lunatic, and a specific performance of 
 such contract, either wholly or so far as the same shall 
 remain to be performed, shall have been decreed either 
 before or after such lunacy, it shall be lawful for the com- 
 mittee, by the direction of the Lord Chancellor, to convey 
 in pursuance of such decree, and the purchase-money, or 
 so much as remains unpaid, is to be paid to the com- 
 mittee. 
 
 If trustees, under a power of sale, make a legal con- 
 
 (s) Owen V. Davies, 1 Yes. 82. 
 (/) Hall V. Warren, 9 Vcs. jun. 605. 
 (u) Sec. 7. 
 
 (*201)
 
 244 ^^ '^^^ CONSEQUENCES OF 
 
 tract for sale of the estate, the contract binds the estate ; 
 and though, by the deaths of parties, the power should 
 be extinguished, yet the contract must be executed by 
 those who have got an interest by the extinguishment of 
 the power(.r). 
 
 If an infant enter into a contract for the sale or purchase 
 of an estate, he cannot enforce it in equity, for the remedy 
 is not mutual(?/). 
 
 II. Secondly, We are to consider the rules by which 
 equity is guided in granting a specific performance, with 
 reference to the agreement itself. 
 
 We shall, in the subsequent chapters of this treatise, 
 have occasion to consider rather at large in what cases 
 equity will or will not enforce a specific performance of 
 an agreement for sale of an estate ; and it will in this 
 (*)place, therefore, be sufficient to state the general rules by 
 which equity is guided in compelling the specific per- 
 formance of agreements. 
 
 The original foundation of these decrees was simply 
 this, that damages at law would not give the party the 
 compensation to which he was entitled ; that is, would not 
 put him in a situation as beneficial to him as if the agree- 
 ment were specifically performed. On this ground the 
 Court, in a variety of cases, has refused to interfere, 
 where from the nature of the case the damages must ne- 
 cessarily be commensurate to the injury sustained(2:)( 128), 
 
 (x) Moitlock V. Buller, 10 Ves. jun. 292 ; and see Shannon v. Brad- 
 street, 1 Scho. & Lef. 52. 
 
 (ij) Flight V. Bolland, 4 Russ. 298. 
 
 (s) Errington v. Annesley, 2 Bro. C. Ca. 841 ; Fhnt v. Brandon, 8 
 Ves. jun. 363 ; Mitf. PI. 109. 
 
 (128) See Hepburn v. Dimlop, 1 Wheat. 197. Hepburn v. Jluld, 5 
 Cranch, 202. Hutch v. Cobb, 4 Johns. Ch. Rep. 659. Kempshall v. 
 Stone, 5 Johns. Ch. Rep. 193. Lotig v. Colston, 1 Hen. & Munf. 110. 
 Perkins v. Wright, 3 Har. & M'Hen. 326. Cotson v. Thompson, 2 
 Wheat. 336. 
 
 ,(*202)
 
 THE CONTRACT. 
 
 245 
 
 as, for instance, in agreements for the purchase of stock, it 
 being the same thing to the party, where or from whom 
 the stock is purchased, provided he receives the money 
 that will purcliase it. But the sale of an annuity payable 
 out of dividends of a particular stock(rt), or of the right to 
 a dividend upon a bankrupt's estate(6), or even a contract 
 for stock where the object is to obtain delivery of cer- 
 tificates which confer the legal title to it(c), may be 
 enforced in equity. These cases show what were the 
 grounds on which courts of equity first interfered, but 
 they have constantly held that the party who comes into 
 equity for a specific performance, must come with perfect 
 propriety of conduct, otherwise they will leave him to his 
 remedy at law(^). 
 
 The decreeing a specific performance is a matter of 
 discretion, but it is not an arbitrary, capricious discre- 
 tion ; it must be regulated upon grounds that will make it 
 (*)judicial(e)(129). And undoubtedly every agreement, of 
 which there should be a specific execution, ought to be in 
 writing, certain, and fair in ail its parts, and for adequate 
 consideration(/)(130). 
 
 (rt) AVithy V. Cottle, 1 Sim. & Stu. 174, affirmed upon the hearing; 
 1 Turn. 78. 
 
 (6) Adderley v. Dixon, 1 Sim. & Stu. 607. 
 
 (c) Doloret V. Rothschild, 1 Sim. & Stu. 590. 
 
 (d) Harnett v. Yielding, 2 Scho. & Lef. 653. [misprinted in the 
 book] per Lord Redesdale ; and see Cadman v. Horner, 18 Ves. jun. 
 10. 
 
 (e) Per Lord Eldon, see 7 Ves. jun. 35 ; and see 1 Atk. 183 ; 4 
 Burr. 2539. 
 
 (/) Per Lord Hardwicke, see 1 Ves. 279 ; and see 3 Atk. 386 ; 
 Ellard V. Lord Llandlatl', 1 Ball & Beatty, 241 ; Martin v. Mitchell, 3 
 Swanst. 413 ; Stanleys. Robinson, 1 Russ. & Myl.~527. 
 
 (129) Si. Johnv. Benedict, 6 Johns. Ch. Rep. 111. Seijmour v. De- 
 lancij, 6 Johns. Ch. Rep. 222. Perkins \. JVrighf, 3 Har. & M'Hcn. 
 326. Orr v. Hodgson, 4 Wheat. 465. 
 
 (130) See Colson v. Thompson, 2 Wheat. 336. Clitherall v. Ogihie, 1 
 
 (*203)
 
 246 ^^ ^^^ CONSEQUENCES OF 
 
 Equity will not decree a specific performance of an 
 agreement made in a state of intoxication, although the 
 party was not drawn in to drink by the plaintiff; nor will 
 it decree the agreement to be delivered up ; but will leave 
 the parties to their remedy at law(^)(131). 
 
 If it be stipulated in a contract, that immediate posses- 
 sion shall be given to the purchaser, which is done, but in 
 consequence of disputes as to the title, the seller after- 
 wards turn the purchaser out of possession, he abandons 
 his right to a specific performance(/t). 
 
 A court of equity frequently decrees a specific per- 
 formance where the action at law has been lost by the 
 default of the very party seeking the specific performance, 
 if it be notwithstanding conscientious that that agreement 
 should be performed, as in cases where the terms of the 
 agreement have not been strictly performed on the part 
 of the person seeking specific performance ; and to sus- 
 tain an action at law, performance must be averred ac- 
 cording to the very terms of the contract. Nothing but 
 specific execution of the contract, so far as it can be exe- 
 cuted, will do justice in such a case.(z). 
 
 Although damages may be recovered at law, yet equity 
 (*)is not therefore obliged to decree a specific performance ; 
 
 (g) Cragg V. Holme, 18 Ves. jun. 14, cited. See Say v. Barvvick, 
 1 Ves. & Bea. 95. 
 
 (/i) KnatchbuU v. Grueber, 3 Mer. 124. 
 
 (i) Davis V. Hone, 2 Scho. & Lef. 341,748. See Lennon i\ Nap- 
 per, ibid. 684. 
 
 Des. 250, 257. Caldwell v. JMtjers, Hardin, 553. Carberry v. Tan- 
 nehill, 1 Har. & Johns, 224. Seijmour v. Delancij, 6 Johns. Ch. Rep. 
 222. 
 
 (131) See contra, Wigglesworthw. Steers, 1 Hen. & Munf. 70. As 
 to the validity of contracts made by persons in a state of intoxication, 
 see Rutherford v. Ruff, 4 Des. 350. Wade v. Colvert, 2 Rep. Con. 
 Ct. 27. Campbell v. Ketcham, 1 Bibb. 406. Taylor v. Patrick, 1 
 Bibb. 168. While v. Cox, 3 Hayw. 82. 
 
 C*204)
 
 THE CONTRACT. 
 
 247 
 
 but the Court will judge on the whole circumstances of 
 the case, whether it be such an agreement as ought to be 
 carried into effect ; for a jury, upon inquiry, may find ve- 
 ry small damages, and then it would be very hard to carry 
 such an agreement into execution in equity, when it would 
 be greatly to the prejudice of the party against whom it 
 should be decreed to be executed (A:)( 132). 
 
 In a case where a man was entitled to a small estate 
 under his father's will, given on condition that if he should 
 sell it in twenty-five years, half the purchase-money 
 should go to his brother ; he agreed, in writing, to sell it, 
 and afterwards refused to carry the sale into execution, 
 pretending to have been intoxicated at the time. A bill 
 was brought against him to compel a specific performance ; 
 and Lord Hardwicke held, that without the other circum- 
 stance, the hardship alone of losing half the purchase- 
 money, if carried into execution, was sufficient to deter- 
 mine the discretion of the Court not to interfere, but leave 
 them to law(/)(133). 
 
 Nor will equity interpose, if the party who is called 
 upon to do the act is not lawfully competent to do it ; for 
 that, amongst other inconveniences, would expose him to 
 a new action for damages(«i)(134). 
 
 (A.) Per Lord Hardwicke, MS. See Pope v. Harris, Lofft, 791, cit- 
 ed ; White's case, 3 Swanst. 108, n. 
 
 (/) Fain v. Brown, 2 Ves. 307, cited ; Costigan v. Hastier, 2 Scho. 
 & Lef. 160. See 2 Ball & Beatty, 283 ; Howell v. George, 1 Madd. 1. 
 
 (hi) Harnett v. Yielding, 2 Scho. & Lef. 554 ; Ellard v. Lord Llan- 
 daff, 1 Ball & Beatty, 241. See }yost, p. 210. 
 
 (132) See Perkins v. Wright, 2 Har. & M'Hen. 326. ClUherall v. 
 Ogilvie, 1 Des. 263. Edwards v. Handleij, Hardin, 602. See Camp- 
 
 '^bell V. Spencer, 2 Binn. 129. 
 
 (133) See Rugge v. Ellis, 1 Dcs. 160, 163. 
 
 (134) A court of Equity will not enforce an agreement entered into in 
 fraud of, or against the policy of the law. M'Dermed v. ArCaslland, 
 Hardin, 18. Hannay v. Ewe, 3 Cranch, 242. It scans, that the alien- 
 
 I
 
 2^g OF THE CONSEQUENCES OF 
 
 But although a covenant ought not to be performed 
 literEilly, jet equity will execute it according to a con- 
 scientious modification of it, to do justice as far as circum- 
 stances will permit (?2)( 135). 
 
 (*)Suppressio veri, as well as suggestio falsi, is a ground 
 to rescind an agreement, or at least not to carry it into 
 execution(o), and even an industrious concealment, dur- 
 ing a treaty, of the necessary repair of a wall to protect 
 the estate from a river, which was a considerable out- 
 going, has been deemed a sufficient ground to withhold 
 the aid of equity from a vendor^/?). So where there is 
 a mistake between the parties as to what was sold, the 
 Court will not interfere in favor of either party(^). 
 Even mere surprise on third persons at a sale by auction, 
 has been deemed sufficient to prevent the Court from 
 assisting a purchaser, as where the known agent of the ^ 
 seller bid for the estate on behalf of the purchaser, and | 
 other persons present thinking he was bidding as a -puffer 
 on the part of the vendor were deterred from bidding(r), 
 
 (n) Davis v. Hone, 2 Scho. & Lef. 348. 
 
 (o) See Buxton v. Cooper, 3 Atk. 383 ; S. C. MS. ; Howard v. 
 Hopkins, 2 Atk. 371 ; Young v. Clerk, Prec. Cha. 138 ; 1 Trea. Eq. 
 ch. ii. s. 8 ; 1 Ball & Beatty, 241 ; Lord Clermont v. Tasburgh, 1 Jac. 
 & Walk. 112. 
 
 ip) Shirley v. Stratton, 1 Bro. C. C. 410. See Small v. Attwood, 
 Younge's Rep. 
 
 (7) See 1 Ves. jun. 211 ; 6 Ves. jun. 339 ; 13 Ves. jun. 427 ; Hig- 
 ginson r. Clowes, 15 Ves. jun. 156; Clowes v. Higginson, 1 Ves. & 
 Bea. 524 ; Harnett v. Yielding, 2 Scho. & Lef. 554. 
 
 (r) Twining v. Morris, 2 Bro. C. C. 326. See 6 Ves. jun. 338 ; 
 10 Ves. jun. 306, 313, 398 ; and see Willan v. Willan, 16 Ves. jun. 
 72 ; Magrave v. Archbold, 1 Dow, 107. 
 
 age of the vendee may afford a sufficient reason for refusing a specific' 
 performance of a contract for the sale of lands, as against him. Hep- 
 burn V. Dunlop, 1 Wheat. 179. 
 
 (135) See Championv. Brown, 6 Johns. Ch. Rep. 398. Ramsay v. 
 Brailsford, 2 Des. 683. 
 
 (*205)
 
 THE CONTRACT. 
 
 249 
 
 So, in a recent case, where a purchaser, previously to 
 the sale by auction, told the vendor that he would have 
 nothing to do with the estate, but afterwards went to the 
 sale, ivhere he was considered by the company as a puffer(\) 
 and bid 8,000/. for the estate, which was knocked down 
 to him at that sum from the misapprehension of the per- 
 son appointed to bid for the vendor, who ought to have 
 (*)bid 9,000/., and the mistake was instantly explained, 
 a specific performance was refused(5)(l 36). 
 
 (*) Mason r. Aimitage, 13 Ves. jun. 25. See Hill r. Buckley, 17 
 Ves. jun. 394. 
 
 (I) This is stated in the judgment, but qu. whether it appeared in 
 evidence. 
 
 (136) No concealment or misrepresentation can have the effect of 
 barring the rights of the parties to a contract, unless it be collusive or 
 fraudulent, or the negligence be so gross as to amount to proof of fraud. 
 Sluarl V. Luddington, 1 Rand. 403. See further as to concealment 
 and misrepresentation ; JWAllister v. Barnj, 2 Hayw. 290. Thigpen 
 V. Balfour, 1 Car. Law Rep. 112. Kennedy v. Johnson, 2 Bibb, 12. 
 In Botoman v. Bales, 2 Bibb, 47, 52, it was held by a majority of the 
 court, that where the vendee of land, having discovered salt water, 
 industriously and artfully concealed the fiict from the vendor, equity 
 would relieve against the contract of sale. See Jlrmstrong v. Hickman, 
 6 Munf 287. 
 
 In the case of Rothschild v. Brookman, 5 Blight. 165, where a hold- 
 er of foreign stock buys and sells with the advice of his broker, and 
 through him, but the broker in fact never purchases any stock, but 
 being a holder of such stock himself the transactions are all nominal, 
 and no transfers are made. After a loss on these transactions and a 
 settlement of account, upon which the principal, who was ignorant that 
 the transactions were nominal, pays a sum of money to the agent, upon 
 a bill filed four years after the settlement, the transactions set aside, and 
 the money paid ordered to be refunded, and the decree of the court of 
 Chancery affirmed with costs. 
 
 " In sound policy no person ought, in any case, to be employed secretly 
 to bid for the owner against the bona fide bidder, at a public auction. 
 It is fraud in law on the very face of the transaction, and the owner's 
 interference and right to bid, in order to be admissible, ought to be in- 
 
 voL. I. 32 (*'206)
 
 250 <^^ 'T^E CONSEQUENCES OF 
 
 If an agent, employed to sell an estate, sells it in a 
 manner not authorized by the authority given to him, a 
 specific performance will not be decreed against the prin- 
 cipal although the estate be sold for a greater price than 
 he required for it(^). At least, it is clearly settled, that if 
 an agent is empowered to sell an estate by public auction, 
 a sale by private contract is not within his authority. For 
 although the owner may have fixed the price, yet the 
 estate might have sold for more at a public auction. But 
 if an agent is directed to sell an estate by private contract, 
 and he dispose of it by public auction for a larger sum 
 than the principal required, it still seems open to contend 
 that the purchaser may enforce a specific performance of 
 the contract, unless some particular reason should occur 
 to induce the Court to refuse its aid. 
 
 In Mortlock v. Buller(?«), Lord Eldon said he should 
 hesitate long before he should state as a clear proposition, 
 that where the title to a specific performance is founded 
 in a gross breach of trust by an agent to his principal, a 
 court of equity would assist the plaintiff in the purpose 
 of availing himself of that breach of trust ; and whether 
 the principle would not authorize the Court to leave him Jl 
 to law, and not to let him come for a remedy beyond that. 
 There .were, his Lordship added, dicta enough well to 
 authorize that. 
 
 And where trustees for sale of an estate enter into 
 a contract, which would be deemed a breach of trust, 
 
 (<) Daniel v. Adams, Ainbl. 495 ; etvide a dictmn by Lord Eldon in j 
 
 Coles V. Trecothick, 1 Smith's Rep. 247. 
 
 (m) 10 Ves. jun. 292; and see the close of the judgment, Oid v. 
 Noel, 5 Madd. 438. 
 
 timated on the conditions of sale ; and such a doctrine is understood to 
 have been recently declared at Westminster Hall." 2 K. Com. 536. 
 
 In Mills V. Goodsell, 5 Conn. R. 475, the point decided was, that an 
 officer who sells property on execution, cannot become a purchaser 
 without the consent of both debtor and creditor.
 
 THE CONTRACT. 
 
 251 
 
 (*)equity will not only refuse to interfere in favor of the 
 purchaser, but will even at the suit of the cestuis que trust 
 restrain the trustees from executing the contract, and the 
 purchaser will be left to his remedy at law(a;). 
 
 If a person, entitled in default of execution of a power 
 of sale, contract to sell the estate, not as owner, but mere- 
 ly as the agent of the trustees, and the contract could not, 
 under the circumstances, have been carried into execution 
 against the trustees, it will not be enforced against the 
 agent, although he himself become entitled to the estate 
 before the decree(?/),(I). 
 
 Where a person takes upon himself to contract for the 
 sale of an estate, and is not absolute owner of it, nor has 
 it in his power by the ordinary course of law or equity to 
 make himself so ; though the owner offer to make the 
 seller a title, yet equity will not force the buyer to take it, 
 for every seller ought to be a bona fide contractor(2) : and 
 it would lead to infinite mischief if one man were permitted 
 to speculate upon the sale of another's estate. Besides, the 
 (*)remedy is not mutual, which perhaps is of itself a sufifi- 
 
 {x) Mortlock V. Buller, 10 Ves. jun. 292. See Hill v. Buckley, 17 
 Ves. jun. 394 ; Bridger v. Rice, 1 Jac. & Walk. 74. 
 
 (y) Mortlock v. Buller, 10 Ves. jun. 292. 
 
 {z) Tendring v, London, 2 Eq. Ca. Abr. 680, pi. 9. See 10 Ves. 
 jun. 315 ; and I Jac. & Walk. 421 ; and query, whether there is any 
 case, in which a man, knowing himself not to have any title, has been 
 allowed to enforce the contract by procuring a title before the report, 
 
 (I) From the papers in this cause, it seems that Mr. Buller treated 
 with Mr. Mortlock as the owner of the estate, and this appeared from 
 the receipt for the purchase-money, where the estate was called, " the 
 property of John Buller, Esq." and Mr. Mortlock had not any know- 
 ledge whatever that the estate was in settlement. See Lawrenson v. 
 Butler, 1 Sch. & Lef. 13. 
 
 Since this note was written, an action brought by Mr. Mortlock 
 against Mr. Buller, for breach of contract, came on for trial, when it 
 was compromised on terms very advantageous to the plaintiff. See 2 
 Ball & Beatty, 60 ; and see 2 Dow, 618. 
 
 (*207) (*208)
 
 252 OF THE CONSEQUHNCES OF 
 
 cient objection in a case of this nature. In Armiger v. 
 Clarke(«)> a tenant for life contracted to sell the inherit- 
 ance : after his death, his son, who was entitled to the 
 estate in remainder, and was not bound by his father's 
 covenant, brought a bill for a specific performance against 
 the purchaser, and it was dismissed chiefly upon this prin- 
 ciple, that the remedy was not mutual(137). And in Noel 
 V. Hoy(6), it was said, that if A. sells B.^s estate, although 
 B. is willing to confirm the contract, A. cannot enforce it : 
 there is no mutuality. So an infant cannot specifically 
 enforce a contract by himself for sale, because there is no 
 mutuality(c). But in Williams v, Carter(<]f), the estate 
 was sold, and it was afterwards discovered that it 
 was bound by marriage articles, which it was decided in 
 a suit instituted for the purpose, authorized the introduc- 
 tion of a power of sale in the trustees, and thereupon 
 a bill was filed by them and the seller for a specific per- 
 formance. The Vice-Chancellor overruled the objection, 
 that there was no mutuality in the agreement, and decreed 
 a specific performance. 
 
 And on the other hand, where a bona fide vendor has 
 not a title to the estate, the Court will not, in favor of the 
 purchaser, decree an impossibility, but will leave the pur- 
 chaser to his remedy at law upon the articles(e) ; and, 
 although he must necessarily obtain a verdict, if he have 
 recourse to law, yet he would in most cases obtain nominal 
 damages only(X), for a purchaser, as a general rule, is 
 
 (a) Bunb. Ill; see post, ch. 6 ; Hamilton v. Grant, 3 Dow, 33. 
 (6) V. C. 23 Feb. 1820, MS. 
 
 (c) Flight V. Bolland, 4 Russ. 298. 
 
 (d) MS. V. C. 1821. 
 
 (e) Crop V. Norton, 2 Atk. 74 ; 9 Mod. 233 ; Cornwall v. Williams, 
 Colles, P. C. 390 ; Benet College v. Carey, 3 Bro. C. C. 390. 
 
 (/) Fleaureau v. Thornhill, 2 Blackst. 1078 : and see 3 Bos. & 
 Pull. 167. See Brig's case. Palm. 364. Vide post. 
 
 (137) See Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 273,282. 
 Benedict v. Lynch, 1 Johns. Ch. Rep. 370. 
 
 I
 
 THE CONTRACT, 253 
 
 (*)not entitled to any compensation for the fancied good- 
 ness of his bargain, which he may suppose he has ]ost(138). 
 
 But where the purchaser is willing to take the title, 
 such as it is, it is apprehended that he may do so. In 
 a latecase(^)(139), Lord Redesdale said, that the plaintiff 
 in equity must show that in seeking the performance, he 
 does not call upon the other party to do an act which he 
 is not lawfully competent to do ; for, if he does, a conse- 
 quence is produced that quite passes by the object of the 
 Court in exercising the jurisdiction, which is to do more 
 complete justice. If a party is compelled to do an act 
 which he is not lawfully authorized to do, he is exposed to a 
 new action for damages, at the suit of the person injured by 
 such act ; and, therefore, if a bill is filed for a specific per- 
 formance of an agreement made by a man who appears 
 to have a bad title, he is not compellable to execute it, un- 
 less the party seeking performance is willing to accept 
 such a title as he can give, and that only in case where an 
 injury would be sustained by the party plaintiff, in case he 
 were not to get such an execution of the agreement as the 
 defendant can give. His Lordship took the reason to be 
 this, among others, not only that it is laying the founda- 
 tion of an action at law, in which damages may be recov- 
 ered against the party, but also that it is by possibility in- 
 juring a third person, by creating a ^itle with which he 
 may have to contend. 
 
 It is, however, the received opinion, that the purchaser 
 may elect to take the title, such as it is, although no in- 
 jury would be sustained by him in case the agreement 
 
 (g-) Harnett r. Yielding, 2 Scho. & Lef. 649. See;jo5^ 
 
 (138) See Hepburn v. Dunlop, 1 Wheat. 179. Hepburn v. Auld, 5 
 Cranch, 262. Butler v. O'Hear, 1 Des. 382. Fishery. Kay, 2 Bibb, 
 434. Johnson v. Hobson, 1 Lit. 314. Kelletj v. Bradford, 3 Bibb, 317. 
 As to damages in case of eviction by title paramount, see Coopev^s Justin- 
 ian, 607 to 620, where the American cases on that subject are collected. 
 
 (139) See Roachv. Rutherford, 4 Des. 126. 
 
 (*209)
 
 254 ^^ '^"^ CONSEQUENCES OF 
 
 were not executed, nor does the rule seem to lead to the 
 difficulty which has been apprehended ; for, in such a 
 case, the covenants must, of course, be so framed, as not 
 to leave the seller exposed to an action on account of the 
 (*)flaw in the title ; but where the conveyance would be 
 merely void, and might embarrass persons claiming under 
 the same title as the seller, equity seems to refuse its aid 
 on substantial grounds(A). 
 
 But where a tenant for life with a power of sale, first 
 settling other estates of equal or betteTvMue, sold the 
 estate under an apprehension that he had power to con- 
 vey the fee, the Court refused to compel him to settle 
 another estate, in order to enable him to complete his 
 contract(/). 
 
 To enable the Court to decree a specific performance 
 against a vendor, it is not, however, necessary that he 
 should have the legal estate ; for if he has an equitable 
 title, a performance in specie will be decreed(A:), and he 
 must obtain the concurrence of the persons seised of the 
 legal estate. 
 
 Although, as we have seen, a vendor cannot demand 
 the aid of equity, unless he is a bona fide contractor, yet 
 the circumstance that the purchaser is a nominal con- 
 tractor, and purchases in trust for another person, is im- 
 material ; for it happens, in a vast proportion of cases, 
 that the contract is entered into in the name of a trus- 
 tee(/), and the mere fact of a quarrel having taken place 
 between the vendor and the real purchaser, totally uncon- 
 nected with the subject of the contract(m), or even a bare 
 
 ill) See Ellard v. Lord LlandafF, 1 Ball & Beatty, 244. See 
 O'Rourke v. Peicival, 2 Ball & Beatty, 56. 
 
 {{) Howell V. George, 1 Madd. 1. 
 
 {h) Crop V. Norton, 2 Atk. 74. See Costigan v. Hastier, 2 Scho. 
 & Lef. 160. 
 
 (Z) Hall V. Warren, 9 Ves. jun. 605. 
 
 (m) S. C. 
 
 (*210)
 
 THE CONTRACT. 255 
 
 refusal by the vendor to deal with the real contractor(n), 
 is not a sufficient ground to refuse a performance in specie 
 of the agreement. 
 
 But if a person apply to purchase an estate, and the 
 (*)vendor expressly refuse to treat with him, unless the 
 money is paid down, which he is unable to do, but pro- 
 cures some other person to purchase the estate on his 
 account, it seems clear, that at least the time appointed 
 for payment of the money will be deemed of the very 
 essence of the contract(o). So if a person apply to 
 purchase an estate on behalf of A., for whom the vendor 
 has a great value or affection, and the vendor is induced 
 to take less for the estate than he otherwise would have 
 done; or even, perhaps, without this circumstance, the 
 agreement cannot be enforced against the vendor, if it be 
 made on behalf of any other person than A. ; but if A, 
 will patronize the sale, execution of the agreement must 
 be compelled, although he may sell the estate the next 
 day to the fraudulent purchaser(/?). 
 
 The case of Scott v. Langstaffe(^), was decided on 
 the same principle. A purchaser of a house adjoining 
 to a house occupied by the vendor, agreed with the ven- 
 dor, though it was not made part of the written contract, 
 that he would not lease the house to any person not 
 agreeable to him. Langstaffe applied for a lease, and 
 stated that he knew the vendor intimately, and that there 
 
 (n) Lord Irnham v. Child, 1 Bro. C. C. 92. 
 
 (o) Popham v. Eyre, Lofft, 786. Mr. Brown's note of this case 
 evinces the danger of relying on short notes of cases ; see 1 Bro. C. 
 C. 95, n. See O'Herlihy v. Hedges, 1 Schoales & Lefroy's Rep. 
 123; but note, that case was between landlord and tenant; and see 
 Feathcrstonhaugh r. Fenwick, 17 Yes. jun. 298. 
 
 (p) Philips V. Duke of Buckingham, 1 Vern. 227. In Mr, Raith- 
 by's edit, it is said that a specific performance was decreed. The prin- 
 ciple, however, is now well established. 
 
 iq) Lofft, 797, 798, cited ; and see Bonnett i'. Sadler, 14 Ves. jun. 
 527 ; Fellowes v. Lord Gwydyr, 1 Sim. 63. 
 
 (*211)
 
 256 O^ 'TH^ CONSEQUENCES OF 
 
 would be no objection to grant him a lease. The vendor, 
 however, disapproved of Langstaffe, and, so far from 
 knowing him intimately, had only seen him at a tavern. 
 Lord Camden said, this was the case of Philips v. the 
 (*)Duke of Buckingham. Nobody, who had read that 
 case, could easily forget it. And his Lordship set aside 
 the agreement which Langstaffe had obtained, with costs. 
 
 A similar case is mentioned in Hawkins's life of John- 
 son, which was also decided on the authority of Philips's 
 case. Peele the bookseller had a house near Garrick's 
 at Hampton. Peele had often said, that as he knew it 
 would be an accommodation to Garrick, he had given 
 directions that at his decease he should have the refusal 
 of it. On Peele's death, a man in the neighborhood 
 applied to his executors, pretending that he had a com- 
 mission from a friend or relation of Peele's, who lived in 
 the country, to buy the house at any price, and he accord- 
 ingly obtained a conveyance of it to a person nominated 
 by him under a secret trust for himself. Garrick filed a 
 bill against him, and the purchase was decreed fraudu- 
 lent, and set aside with costs. 
 
 But although a seller falsely assume the character of 
 an agent to another, when he is himself the real seller, 
 and the purchaser be deceived by the representation, 
 yet it has been decided that if the purchaser cannot 
 prove damage, or that the misrepresentation induced him 
 to enter into the contract, a specific performance will not 
 be refused (r). 
 
 An agreement for the sale of an annuity for, three lives, 
 to be named by the purchaser, and to commence imme- 
 diately, will be decreed, although the lives have not 
 been named, if the delay has been occasioned by the 
 seller(s). 
 
 (r) Fellowes v. Lord Gwydyr, 1 Sim. 63 ; 1 Russ. & Myl. 83. 
 (s) Pritchard r. Ovey, 1 Jac. & Walk. 396. 
 
 (*212)
 
 THE CONTRACT. oe-y 
 
 In some cases(/), it has been holden, that where no 
 (*)action at law will lie to recover damages, equity will 
 not execute ^the agreement in specie ; for equity will never 
 make that a good agreement, which is not so bylaw; 
 but, in other cases(M), the contrary has been holden, and 
 relief been given accordingly. 
 
 Perhaps the following distinctions are authorized by 
 the cases, nnd will reconcile them. 
 
 First, That although the agreement be void at law, yet 
 a specific performance will be decreed, if there is a clear 
 ground for the interference of equity, according to the 
 general rules of the Court ; and, however unqualifiedly the 
 contrary rule may have been laid down, there is not (that 
 
 1 am aware of) any case clearly entitled to the aid of the 
 Court, to which this rule has been successfully opposed 
 as a bar to the relief. 
 
 Thus aljond from a woman to her intended husband 
 has been enforced in equity, although void at law by the 
 intermarriage ; and an agreement for sale of an estate 
 has been decreed against an heir at law, although his 
 ancestor died before the time appointed to convey the 
 estate, and therefore no action would lie against him. In 
 the first of these cases the inqiropriety of the security 
 was deemed immaterial ; for it was sufficient that the 
 bond was a written evidence of the agreement of the 
 parties, and the agreement being upon a valuable consi- 
 deration, ought to be executed in equity. The decision 
 in the other case depended upon the doctrine, that the 
 
 (<) The Marquis of Normanby v. Duke of Devonshire, 2 Freem. 
 216; Dr. Betesworth r. Dean and Chapter of St. Paul's, Sel. Cha. Ca. 
 66 ; and see 2 Eq. Ca. Abr. 15, 23, notis ; and Fonbl. n. (c) to 1 Trea. 
 Eq. 138, and n. {h) to p. 204, ibid. 
 
 («) Winged v. Lefebury, 2 Eq. Ca. Abr. 32, pi. 43 ; Acton r. Pierce, 
 
 2 Vern. 480 ; Cannel v. Buckle, 2 P. Wms. 243 ; Norton r. Mascail, 
 2 Vern. 24 ; and Hall v. Hardy, 3 P. Wms. 187. See East India 
 Company v. Donald, 9 Ves. jun. 275 ; 1 Smith's Rep. 213. 
 
 VOL. I. 33 (*213)
 
 258 OF THE CONSEQUENCES OF 
 
 articles were a lien upon the land ; the contract being a 
 purchase in equity. But, 
 
 (*)Secondly, Equity cannot contradict or overturn the 
 grounds or principles of law(a:)(140) ; and therefore, in 
 many cases, it must be considered whether damages could 
 be recovered at law, and the Court will be guided by the 
 result(2/). 
 
 Thus agreements for sale of an estate have (as we have 
 already seen) been decreed on mere letters which have 
 passed between the parties, but not unless all the terms 
 of the agreement were therein specified ; and even this 
 was going a great way. In the first case, therefore, in 
 which even a trifling omission appeared in the letters, it 
 was natural to pause before the performance of the agree- 
 ment was decreed, and to ascertain whether damages 
 could be recovered at law : for the statute of frauds and 
 perjuries must receive the same construction in a court of 
 
 (x) See 2 P. Wms. 753 ; Earl of Bath v. Sherwin, 10 Mod. 1. 
 (y) See Hollis v. Edwards, 1 Vern. 159. 
 
 (140) See Hollingsworth v. Fry, 4 Dall. 345, 347. 
 
 Tha tan opinion formerly prevailed, that on a suit for the specific 
 execution of a parol agreement for the sale of land, the defendant must 
 either confess or deny the agreement, and, that in the former case, the 
 plea of the statute of frauds would be unavailing, is not less true than 
 strange. But it is now the settled rule of the court, that although the 
 defendant should answer and admit the agreement as stated in the bill, 
 he may nevertheless protect himself against a performance, by pleading 
 the statute. And it was held in Thompson v. Tod, 1 Pet. C. C. R. 
 380, that part performance of the contract can have no other effect than 
 to let the plaintiff in to prove the contract aliunde, where it is not con- 
 fessed ; but in the case then before the court no such proof was given ; 
 the contract being neither admitted nor proved : held, that the plaintiff 
 was not entitled to the relief which he specifically prayed for. Wash- 
 ington, J. added, that although if should be admitted, that under all the 
 circumstances of that case, that the payment of a part of the purchase 
 money will amount to a part peformance, still it should appear, beyond 
 all reasonable doubt, that the payment was understood by the parties to 
 have been so made and intended. 
 
 (*214)
 
 THE CONTRACT. 259 
 
 equity as in a court of law, unless in the case of fraud, 
 &c. where equity interposes and relieves against the 
 abuse, or allays the rigor of the law. 
 
 The case of the Marquis of Normanby v. the Duke of 
 Devonshire, was, I believe, the first in which this point 
 occurred ; and, according to a manuscript note, it appears 
 that Lord Somers called in the two chief justices on the 
 point, whether the party, on the letters which had passed, 
 could have recovered damages at law ? They were of 
 opinion that he could not, and Lord Somers accordingly 
 dismissed the bill. 
 
 So there are very few cases in which a court of equity 
 can decree a performance of an agreement upon which 
 there can be no action at law, according to the words of 
 the articles, and the events that have hap])e7ied(z). 
 
 A proviso, in a contract for sale, that if either party 
 (*)break the agreement he shall pay a sum of money to 
 the other, will only be considered in the nature of a penal- 
 ty(«) ; and consequently a specific performance will be 
 decreed just as if no such proviso had been inserted. The 
 defendant will not be allowed to forfeit the penalty, and 
 get rid of the agreement(6)(141). 
 
 Where an action is brought for the recovery of the 
 penalty, to entitle the party bringing it to recover, he 
 ought punctually, exactly, and literally, to have com- 
 pleted his part(c). And, it has been said, that if, for 
 
 {z) Whitmel v. Fanel, 1 Ves. 256. 
 
 {a) Howard v. Hopkins, 2 Atk. 371. See 2 Scho. & Lef. 684 ; 
 and Margrave v. Archbold, 1 Dow, 107 ; Davies v. Penton, 6 Barn. & 
 Cress. 216 ; 9 Dowl. & R. 369, S. C. 
 
 (6) Hopson V. Trevor, 1 Str. 633 ; 2 P. Wnis. 191 ; Parks v. Wil- 
 son, 10 Mod. 615. 
 
 (c) Duke of St. Alban's v. Shore, 1 H. Blackst. 270. 
 
 (141) See Telfair y. Telfair, 2 Des. 271. Telfair v. Telfair, ut 
 supra. 
 
 (*216)
 
 2Q0 OF THE CONSEQUENCES OF 
 
 breach of an agreement, to which a penalty was annexed, 
 either party recover damages at law beyond the penalty, 
 equity will relieve against the verdict, on payment of the 
 penalty only(f/) ; but this is not well founded, for, if the 
 party have two remedies at law, one for breach of con- 
 tract upon the covenant, or agreement, toties quoties ; 
 the other for the penalty at once(e), there appears to be 
 no pretence for equity to relieve ; although where large 
 damages have been recovered at law, under a covenant 
 which it was unconscientious strictly to enforce, the party 
 may be relieved in equity, upon offering to perform the 
 covenant according to conscience : but even this seems, 
 in some measure, to be usurping the province of a jury, 
 and the equity is administered with great caution(142). 
 
 Where the parties have expressly stipulated, that in case 
 of a breach by either, he shall pay a sum named as liqui- 
 dated (*)damages, the whole sum may, if the agreement 
 be broken, be recovered at law(7^(143). 
 
 If a power be given in a contract to a purchaser to leave 
 the purchase-money as a charge upon the property for a 
 given period at interest, and it be stipulated that the 
 purchaser shall be deemed a tenant to the seller at a rent 
 equal to the interest, and the seller have power to dis- 
 train ; though the agreement be acted upon, yet the 
 instrument would not be deemed a lease, but is sub- 
 stantially a contract for purchase, and the power of distress 
 does not alter the nature of the contract between the par- 
 
 ((Z) Shenton v. Jordan, Biinb. 132 ; but the reporter adds a query, 
 fur this seems an extraordinary opinion. 
 
 (e) See Harrison v. Wright, 13 East, 343. 
 
 (/) Reilly v. Jones, 1 Bing. 302 ; 8 Moo. 244, S. C. 
 
 (142) See Skinner v. Dayton, 2 Johns. Ch. Rep. 526. Graham v. 
 Bichham, 4 Dall. 149. 
 
 (143) See Slosson v. Beadle, 7 Johns. Rep. 72. Hasbrouck v. 
 Tappen, 15 Johns. Rep. 200. 
 
 (*216)
 
 THE CONTRACT. 261 
 
 ties. And this construction would be applied in the event 
 of the bankruptcy of the purchaser(^). 
 
 SECTION III. 
 
 Of the Remedies for a Breach of Contract. 
 
 If either the vendor or vendee refuse to perform the 
 contract, the other may bring an action for breach of 
 contract, or file a bill for a specific performance(^) ; 
 although it appears to have been formerly thought that 
 as a vendor only wants the purchase-money, his remedy 
 was at law(i). 
 
 Where one party fails in performing the contract, the 
 other, if he means to rescind the contract, should give a 
 clear notice of his intention (A;). 
 
 If a bill be filed for a specific performance, the Court 
 (*)will enjoin either party not to do any act to the injury 
 of the other. Therefore, if the purchaser is in posses- 
 sion, and has not ])aid the money, the Court will grant an 
 injunction against his cutting timber(/)(144) ; so, on theoth- 
 
 (g) Hope V, Booth, 1 Barn. & Adolp. 498. 
 {h) Lewis v. Lord Lechmere, 10 Mod. 503. 
 
 (t) See Armiger V. Clark, Bunb. Ill; Withy v. Cottle, 1 Sim. & 
 Stu. 174. See Kenney v. Wcnham, 6 Madd. 315. 
 (t) Reynolds v. Nelson, 6 Madd. 18. 
 (/) Crockford v. Alexander, 15 Ves. jun. 138. 
 
 (144) An injunction to stay waste will not be granted against a ven- 
 dee, to whom land has been sold in fee, even where the vendor retains 
 the title as security for the purchase money ; unless he brings his suit to 
 enforce the lien, alleging, that the defendant is committing waste in such a 
 manner as to render the land an incompetent security ; in which case, an 
 
 (*217)
 
 252 °^ '^^^ CONSEQUENCES OF 
 
 er hand, the vendor will be restrained from conveying away 
 the legal estate in the property ; because such a measure 
 might put the purchaser to the expense of making another 
 party to the suit(m) ; and, a fortiori, he will be restrained 
 from selling the estate to a third person(w). But in 
 Spiller V. Spiller(o), the Lord Chancellor expressly laid it 
 down, that upon a bill filed for a specific performance, he 
 wished it to be understood, that the Court would not take 
 from a seller the disposition of his property. So injunc- 
 tions may be granted against the agents of the parties. 
 But an injunction will not be granted against a person 
 who is not a party to the suit ; and, in a late case, in 
 which, upon a bill filed by a seller for a specific per- 
 formance, and an injunction against the purchaser's pro- 
 ceeding at law to recover the deposit from the seller's 
 attorney, to whom it was paid, Sir John Leach, V. C. 
 refused the motion, with costs, because the attorney was 
 not a party to the suit(p). But in a very recent case, 
 the same Judge granted an injunction to restrain the 
 purchaser from proceeding in an action against the auc- 
 tioneer, although he (the auctioneer) was not a party to 
 the suit ; the seller offering to bring the deposit into 
 Court. 
 
 In all cases where a bill in equity is filed for a specific 
 
 (m) Echliff V. Baldwin, 1 Ves. jun. 267. 
 
 (») Curtis V. Marquis of Buckingham, 3 Ves. & Beam. 168. 
 
 (o) 30 June 1819, MS. S. C. 3 Swanst. 656. 
 
 {p) Brown 15. Frost, E. T. 1818. MS. 
 
 injunction to stay waste, pending the suit, may be awarded. Scott v. 
 Wharton, 2 Hen. & Munf. 25. An injunction will lie against a mort- 
 gagor in possession, to stay waste ; although no suit be pending for fore- 
 closure. Bvadij V. JValdron, 2 Johns. Ch. Rep. 148. So, an injunc- 
 tion will lie to restrain the defendant from cutting timber and commit- 
 ting other waste, he being in possession, claiming title adversely, a suit 
 being pending, at law, to try the title. Sliubrick v. Guerard, 2 Des. 
 616. See contra, Storm v. JVIa/in, 4 Johns. Ch. Rep. 21.
 
 THE CONTRACT. 
 
 263 
 
 performance, either party may in general, if he please^ 
 have a reference as to the title. The vendor is entitled to 
 (*)this privilege in order to enable him to make out a title 
 before a Master. The purchaser is allowed this right, in 
 order that he may have the title assured in a manner he 
 otherwise could not. As to a purchaser, the Court never 
 acts upon the fact, that a satisfactory abstract was de- 
 livered, unless the party has clearly bound himself to 
 accept the title upon the abstract ; but though the ab- 
 stract is in the hands of the party who says he cannot 
 object to it, yet he may insist upon a reference ; because, 
 by the production of papers, which can be enforced, and 
 by the examinations and inquiries which can be made by 
 virtue of the decree, the title may be examined in a man- 
 ner it never could upon a mere abstract(g')(145). Either 
 party may, however, wave this right. 
 
 Where a man makes a purchase of an estate, to which 
 the vendor represents that he has a good title, in such a 
 case the purchaser has a right to insist, that the question 
 whether he have or have not a good title shall be sifted 
 to the bottom before he can be called upon to adopt either 
 alternative, and before the vendor can be let off from his 
 original contract(r). 
 
 Where the purchaser files the bill, and insists that the 
 vendor cannot make good a title, equity can only dismiss 
 the bill with costs, although the Court will compel him to 
 make out the title if he have the ability(5). But the 
 Court has power in a suit so framed to decide whether 
 the title is good or bad. 
 
 If, after the confirmation of a report in favor of a title, 
 
 (g) See Lord Eldon's judgment in Jenkins r. Hiles, 6 Yes.jun. 653. 
 
 (»•) 3 Mer. 137, per Lord Eldon. 
 
 («) Nicloson V. Wordsworth, 2 Swanst. 365. 
 
 (145) See Beverley v. Laxcson's heirs, 3 Munf. 317, 383. JSrComb 
 
 V. IVrighl, 4 Johns. Ch. Rep. 659. 
 
 (*218)
 
 264 ^^ '^^^ CONSEQUENCES OF 
 
 a new fact appear, by which the title is affected, the title 
 will be referred back to the Master(i). In a case where 
 the seller of a leasehold estate produced the. leasehold title, 
 (*)which the Master thought sufficient, and reported ac- 
 cordingly ; but the Court held, that the lessor's title ought 
 to have been produced, and sent it back to the Master to 
 review his report ; the seller had liberty given to him to 
 produce the freehold title. And it was considered that the 
 purchaser was at liberty to enter into objections to the 
 leasehold title, which were not taken upon the former dis- 
 cussions before the Master(^/.). And, upon the objections 
 being afterwards taken, the bill was dismissed(2'). The 
 course of the Court is, where the Master has, by express- 
 ing an opinion in favor of the title, prevented the vendor 
 from showing, that if his opinion had been otherwise, 
 still the title was good, to send it back to the Master to 
 review his report, the party moving to pay the costs of 
 the motion(y). If the Master's report in favor of the 
 title be overruled, yet the seller may, upon an early 
 application, obtain a reference back, in order to show 
 that the title is valid upon another ground not before 
 taken (2). 
 
 So where it appears at the hearing upon the exceptions, 
 that the seller can clear up the objection, the Court has 
 sometimes sent the title back to the Master to review his 
 report, and in such a case it is not necessary, as it was 
 held by Lord Eldon, that the Master should have liberty 
 to receive further evidence. He may receive such evi- 
 dence without any express authority. In the case of 
 
 (f) Jeudwine v. Alcock, 1 Mad. 597. 
 
 («) Fildes V. Hooker, 2 Mer. 424. Andrew v. Andrew, 3 Sim. 390. 
 (x) S. C. V. C. 3d April 1818, MS ; 3 Madd. 193. 
 (y) Egerton v. Jones, 3 Sim. 392. 
 
 (2) Egerton v. Jones, 1 Russ. & Myl. 694. Portman v. Mill, ib. 
 697. 
 (*219)
 
 riir: contract. 
 
 265 
 
 fc^sdyilc V. .Ste{)heiisoii(rt), it appeared that the estate was 
 subject to a rent-charge, and a term to secure it ; and 
 (*)the purciiaser's counsel, before the Master, required the 
 seller to produce a release of" it, or evidence that the 
 jointress would release ; but although he did not do so, 
 the Master reported, that the seller could make a good 
 title upon the jointress releasing. To this report excep- 
 tions were taken. The Vice-Chancellor consulted the 
 Lord Chancellor, and stated their opinion to be, that the 
 report was wrong. It should have been, that the seller 
 could not make a good title unless the jointress joined ; 
 and the Vice-Chancellor recommended in future, the form 
 of such a report to be, that the seller could not make 
 a good title, because A. is a jointress, and no sufficient 
 evidence has been produced to show that she will release. 
 The Lord Chancellor and the Vice-Chancellor agreed, 
 that if a title upon a new fact can be made between the 
 report and the further directions, the Court will enforce 
 the contract, as if in the above case the jointress had agreed 
 to join when the cause came on for further directions : la 
 such a case the Court would expect counsel to appear, 
 and consent that she would concur. This points out the 
 necessity in such cases of setting down the cause upon 
 further directions at the same time with the exceptions. 
 In Esdaile v. Stephenson, as the exceptions only were 
 before the Court, they were ordered to stand over, with 
 liberty to set down the cause for further directions, and 
 then the exceptions and further directions to come on 
 together. It was in the above case expressly laid down, 
 that the Court would not allow a seller to lie by before 
 the Master, and then upon further directions attempt to 
 make a title. There was an appeal from this decision, 
 but it has since been withdrawn. 
 
 (a) V. C. 8 Aug. 1822. MS. S. C. 6 Madcl. 366 ; Paton r. Rogers, 
 6 Madd. 256. 
 
 VOL. I. 34 (*220)
 
 2QQ OF THE CONSEQUENCES OF 
 
 If exceptions are taken to the report, that a good title 
 can be made, and are overruled, other objections to the 
 title cannot be made ; but if exceptions are allowed, and 
 P)a new abstract of title is delivered, further objections 
 may of course be brought in(6). 
 
 In Noel V. Hoy(<:), the seller rested his title on the con- 
 struction of a will, by which he insisted the estate did nof 
 pass. The point was decided against him, and then he 
 asked for a reference to the Master, to see whether he 
 could make a good title, as he insisted that the devisees 
 were trustees for him. This reference was objected to by 
 the purchaser. The Court said, that it should have great 
 difficulty in allowing the plaintiff after a decree to amend 
 his bill, by bringing new parties before the Court. But 
 time had been allowed to get an act of parliament. If the 
 Master was of opinion that the devisees were trustees for 
 the seller, he would report in favor of the title. If a suit 
 should be necessary to try their equity, he would report 
 against it. 
 
 A purchaser may file a bill for a specific performance, 
 although it appears by the abstract that the vendor 
 has no title, and yet unless he chooses to take the 
 title, the Court cannot force it upon him, on the ground 
 of his having filed the bill with a knowledge of the 
 objection(^)(146). 
 
 Where objections are made by a purchaser, evidently 
 with a view to gain time, the Court itself will enter into 
 the consideration of the objections, without referring the 
 title to a Master. So where a bill is filed by a purchaser, 
 the vendor, the defendant, has been allowed, after answer, 
 and before the hearing of the cause, to move, that an 
 
 (6) Brooke v. , 4 Madd. 212. 
 
 (c) V. C. 23 Feb. 1820, MS. 
 
 (d) Stapylton v. Scott, 16 Yes. jun. 272. 
 
 (146) See Waters v. Trains, 9 Johns, Rep. 450. on appeal. 
 
 (*221)
 
 THE CONTRACT. 
 
 267 
 
 inquiiy may be directed as to the title, and at what time 
 the abstract was delivered," and whether it was sufficient. 
 This was allowed, in order to enable the Court to dispose 
 (*)of the cause with despatch(e). Again, where a vendor 
 tiled a bill for a s})ecific performance, and the purchaser 
 submitted to perform the contract if a good title could 
 be made, asserting that upon the abstract a good title could 
 not be made, it was, upon the motion of the plaintiff, re- 
 ferred to the Master to inquire whether a good title could 
 be made, and whether it appeared upon the abstract 
 that a good title could be made(jQ' Lord Eldon has 
 observed, that some degree of irritation was excited in 
 the Court by persons called land-jobbers, contracting for 
 estates without any intention of paying for them, and 
 setting up defects of title, merely with the view of gain- 
 ing time, to dispose of them ; and, on that ground. Lord 
 Rosslyn was prevailed upon to direct a reference of the 
 title immediately, on motion ; and there is not much 
 mischief in that upon a simple case of specific perform- 
 ance, where there is nothing more ; but the relief may 
 be so modified and qualified, with reference to the nature 
 and object of the contract, that unless it is purely that 
 point, great difficulty may arise(.^). 
 
 In a later case. Lord Eldon directed a reference of the 
 title, upon the bill of a vendor, before the answer was 
 put in. The bill was a mere averment of the contract,- 
 putting no special fact in issue, and the Court considered 
 the plaintiff as undertaking to do all such acts, for the 
 purpose of executing what the Court thinks right, as if 
 the answer was in, and the cause brought to a hearing. 
 With that undertaking, if they cannot state any objection 
 to the performance, and the reference is merely to look 
 
 (e) Mossr. Matthews, 3 Ves. jiin. 279. 
 (/) Wright n. Bond, 11 Yes. jiin. 39. 
 {g) 17 Yes. jun. 278. 
 
 (*222)
 
 203 O^ 'T"^ CONSEQUENCES OF 
 
 into the title, his Lordship did not apprehend the answer 
 to be necessary before that reference(/t). But if the 
 (*)defendant's counsel state that there are other objec- 
 tions, the title cannot be referred(z). 
 
 And in every case where the answer, upon reasons solid 
 or frivolous, insists, that the agreement ought not to be 
 executed, the Court must first dispose of the question 
 raised(/c). Therefore, where the question simply was, 
 whether the vendor of a leasehold estate was bound to 
 produce the lessor's title, a motion by the purchaser for 
 a reference to the Master upon the title was refused (/). 
 So where the defendant, the purchaser, alleges laches on 
 the part of the plaintiff, as a ground for his not being 
 compelled to perform the agreement, the Court will 
 decide the question raised, before the title is referred to 
 the Master(w). 
 
 Until lately, it was not the general practice, to make an 
 inquiry, ab ante, at what time the plaintiff could make 
 a title(n). If, upon the usual reference to the Master, to 
 inquire whether the seller could make a good title, he 
 reported in the affirmative, it might, with a view to costs, 
 have been referred back to the Master, to inquire whether 
 a good title could have been made at the filing of the bill ; 
 
 (h) Balmanno i'. Liimley, 1 Yes. & Beam. 224. 
 
 (i) Matthews v. Dana, 3 Madd. 470. 
 
 (k) Blyth V. Elmherst, 1 Ves. & Beam. 1 ; see Paton v. Rogers, 
 ibid. 351 ; Biscoe v. Brett, 2 Ves. & Beam. 377 ; Fullagar v. Clark, 
 18 Ves. jun. 481 ; Morgan v. Shaw, 2 Mer. 138; Boehm v. Wood, 1 
 Jac. & Walk. 419; Withy i'. Cottle, 1 Turn. 78; 1 Sim. & Stu. 174; 
 Gordon v. Ball, 1 Sim. & Stu. 178. 
 
 (/) Gompertz v. , 12 Ves. jun. 17. See Eldridge v. Porter, 14 
 
 Ves. jun. 139 ; and see 17 Ves. jun. 278. 
 
 (m) See Blyth v. Elmherst, ubi sup. Skelton's case, 1 Ves. & Bea. 
 517; Wallinger v. Hilbert, 1 Mer. 104 ; Lowe v. Manners, 1 Mer. 19 ; 
 Portman v. Mill, 2 Russ. 570. 
 
 (n) Gibaon v. Clarke, 2 Ves. & Bea. 103. See Jennings v. Hopton, 
 1 Madd. 211 ; and see Lubin v. Lightbody, 8 Price, 606. 
 
 (*223) 
 
 i
 
 THE CONTRACT. 
 
 269 
 
 and if not, when it was that a good title could be made(o) ; 
 (*)and this reference might be made as well after a de- 
 cree, as after an interlocutory order. The Vice-Chancel- 
 lor (Sir John Leach) considered, that great additional ex- 
 pense and delay were occasioned by parties not asking, 
 in the first instance, where the circumstances of the case 
 made it material, that if the Master should find that a 
 good title could be made, then that he might inquire when 
 such good title was first shown to the purchaser(/?). In 
 a later case of Harrington v. Secretan, where the pur- 
 chaser moved for a second order, the learned Judge, 
 under the circumstances, granted the motion ; but made 
 a general rule, with the approbation of the bar, which he 
 has since regularly followed, that the first reference should 
 be to see whether a good title can be made, and if so, at 
 the request of either party, to inquire when the seller show- 
 ed a title. This rule appears to be entirely free from ob- 
 jection. 
 
 When the title is referred to the Master upon motion, 
 and the report is against the title, the defendant may 
 move to dismiss the bill with costs, and the Court can 
 make the order without setting down the cause(9'). 
 
 Where the purchaser has been a long time in posses- 
 sion of the estate, and of the abstract, without objecting 
 to the title, a specific performance will be decreed at once 
 without a reference as to the title(r). But the question 
 depends upon a conclusion of fact. The Court must be 
 satisfied that the purchaser intended to wave, and has 
 actually waved his right of examining the title, and of 
 course the waver may itself be rebutted by the conduct of 
 
 (o) Daly V. Osborne, 1 Mer. 332 ; Birch v. Haynes, 2 Mer. 444. 
 
 ip) Hyde V. Wroughton, 3 Madd. 279. See Anon. 3 Madd. 495. 
 
 iq) Walters V. Pyiuan, 19 Ves. 351 ; Whitcomb r. Foley, V. C. 
 1821, MS.; S. C. 6 Madd. 3. 
 
 (r) Fleetwood v. Green, 15 Ves. jun. 694 ; Margravine of Anspach 
 r. Noel, 1 Madd. 310. 
 
 (*224)
 
 270 OF THE CONSEQUENCES OF 
 
 (*)the seller, e. g. in furnishing further documents to make 
 out the title(.s). This subject has already been dis- 
 cussed(^). 
 
 But even after it has been decided that the right to call 
 for the title is waved, if for the purpose of settling the 
 conveyance a deed is produced, which shows a bad title, 
 a specific performance will not be decreed. This was 
 decided in Warren v. Richardson(w). The Lord Chief 
 Baron observed, that though the Court thought the 
 defendant had by his conduct waved that right, it had 
 come out collateral!}', that the plaintiff could not make a 
 title acccording to his contract. It would be a great hard- 
 ship upon a party to force him to accept a title which 
 was ascertained to be defective. It would be contrary to 
 all the rules which prevail upon the subject of specific 
 performance. The principles upon which courts of 
 equity have proceeded on the subject of specific perform- 
 ance, do not make a decree for a specific performance the 
 necessary consequence under all circumstances of an 
 agreement. Circumstances of hardship often prevent it. 
 They recollect that the party is not without remedy, for, 
 though he should be refused a specific performance, he 
 has left to him his action upon the agreement. What 
 created the difficulty in this case was, that the conduct 
 of the party had barred his right to the usual investigation 
 into the title, and this defect was a defect of title. If 
 the objection had been to the conveyance merely, the de- 
 fendant would have had the full benefit of it without 
 any doubt. But the objection was of another description : 
 it was an objection to the title : it stood decided upon the 
 record, that the defendant had waved his right to call upon 
 the plaintiff for the production of his title ; on the other 
 
 (s) Burroughs r. Oakley, 3 Svvanst. 169. 
 (0 Svpra, p. 10. 
 (u) 1 You. 1. 
 (*225)
 
 THE CONTRACT. 
 
 271 
 
 (*)hand, it was clear that the plamtiff could make no good 
 title, and if the defendant took it, it would be defective. 
 
 A new practice has sprung up, by which certainly some 
 suits have been quickly disposed of, but which has been 
 a great surprise upon many parties. I allude to the prac- 
 tice of ordering a purchaser iJi possession of the estate upon 
 motion to pay the purchase-money into court. This, 
 under special circumstances, has been done even before 
 ansvver(a;) ; but the purchaser has, in some cases, had the 
 option to pay the money, or give up possession(?/) ; in 
 others, an occupation-rent has been set, deducting inte- 
 rest on the deposit(2) ; and, in others, a receiver has been 
 appointed (a). And payment of the money will be or- 
 dered, although by the agreement it is payable by instal- 
 ments, and a portion of it is to remain secured upon the 
 estate(6). 
 
 This rule has been adopted where the possession has 
 been given under a mutual apprehension that the title 
 could be immediately made good(c) — where the purchaser 
 had a sort of mixed possession with the vendor, and had 
 paid part of the purchase-money, was insolvent, and had 
 attempted without effect to sell the estate(c^) — where the 
 purchaser approved of the title and prepared a convey- 
 ance, and then raised objections(e) — where the purchaser 
 
 (.r) Dixon i'. Astley, 1 Mer. 133. See Burroughs f. Oakley, 1 Mer. 
 52, 376 ; Blackburn r. Stace, 6 Madd. 69. 
 
 (y) Clarke v. "Wilson, 15 Ves. 317 ; Smith v. Lloyd, 1 Madd. 83 ; 
 Morgan v. Shaw, 2 Mer. 138 ; Wickham v. Everest, 4 Madd. 53. 
 
 (c) Smith V. Jackson, 1 Madd. 618 ; Smith v. Lloyd, 1 Madd. 83. 
 
 (a) Hall V. Jcnkinson, 2 Yes. & Beam. 125. See Clarke v. Elliott, 
 1 Madd. 606. 
 
 [h) Younge r. Buncombe, 1 You. 275. 
 
 (c) Gibson v. Clarke, 1 Yes. & Beam. 500. See 1 Madd. 607. 
 
 (rf) Hall V. Jenkinson, 2 Yes. & Beam. 125. 
 
 (e) Watson r. Upton, Coop. 92, n. But see Bonner v. Johnston, 
 1 Mer. 366 ; and See Crutchley r. Jerningham, 2 Mer. 602 ; Fournier 
 V. Edwards, T. T. 1819, Y. C. The deeds were executed, and an ap- 
 
 (*226)
 
 272 ^^ TH^' CONSEQUENCES OF 
 
 (*)hacl been guilty of laches, and cut undervvood(X). Even 
 in a case where it appeared on the face of the abstract 
 that the title was bad, but the purchaser had sold and 
 conveyed the estate to another purchaser(^). So where 
 from circumstances an acceptance of the title was in- 
 ferred(A) — again, where a time was fixed for payment of 
 the purchase-money by instalments, and the property was 
 a coal-mine(i). In all these cases the rule has been 
 applied, and if the estate be sold under a decree, the pur- 
 chaser, if he enters into possession, will be compelled to 
 pay his purchase-money into court, unless he entered 
 with the express consent of the Court(k). 
 
 But where the sale is not by the Court, and the seller 
 has thought proper to put the purchaser into possession, 
 with an understanding between them that he shall not 
 pay his money until he has a title, the purchaser cannot 
 be called upon to pay the money into court in this sum- 
 mary way(/), nor can the payment be compelled where 
 the vendor gives possession without stipulation(m), or 
 the purchaser was • in possession under another title 
 before the contract(?2) ; or the possession was given 
 independently of the contract, and the seller has been 
 guilty of laches(o), although in such cases the purchaser 
 
 plication was made for the completion of the purchase, but the purchaser 
 had not the money. The motion was made upon the answer, by which 
 the defendant claimed compensation for some charges. 
 
 (/) Burroughs v. Oakley, 1 Mer. 52, 376 ; Dixon v. Astley, 1 Mer. 
 133, 378, n. ; Bradshaw v. Bradshaw, 2 Mer. 492. 
 
 {g) Brown V. Kelty, L. I. Hall, July 1816, MS. 
 
 {h) Boothby V. Walker, 1 Madd. 197; and see Smith v. Lloyd, 1 
 Madd. 83. 
 
 (t) Buck V. Lodge, 18 Ves. jun. 460. 
 
 {IS) Anon. L. I. Hall, 16 July 1816, MS. 
 
 (/) Gibson v. Clarke, 1 Ves. & Beam. 500. 
 
 (m) Clarke v. EUiot, 1 Madd. 606. 
 
 (n) Freebody v. Perry, Coop. 91 ; Bonner v. Johnston, 1 Mer. 366. 
 
 (o) Fox V. Birch, 1 Mer. 105. 
 
 (*227)
 
 THE CONTRACT. 
 
 273 
 
 (*)maj make himself liable to the demand, bj dealing im- 
 properly with the estate, e. g. cutting trees, or selling it 
 to another person(p). 
 
 Perhaps two simple rules may be deduced from the 
 cases: 1st. Where the ])ossession is taken under the con- 
 tract, or is consistent with it, and the purchaser has not 
 dealt improperly with the estate, the cause must lake its 
 regular course. 
 
 But 2d, If the possession by the purchaser, without 
 payment of the money, is contrary to the intention of the 
 parties, or is held according to it, but the purchaser has 
 exercised improper acts of ownership, for example, cutting 
 timber, by which the property is lessened in value, or 
 selling the estate, by which the first seller's remedy is 
 complicated without his assent; in such cases, the Court 
 will interpose and compel the purchaser to pay the pur- 
 chase-money into court. 
 
 Where the sum is large, the Court has allowed a long 
 day, for instance, three months for payment of the 
 money{q) ; and under proper circumstances, the time 
 will be enlarged (r). 
 
 Where a vendor files a bill for an injunction and a 
 specific performance, the Court will^ upon granting the 
 injunction, put hiin upon proper terms, and therefore will 
 in most cases order him to pay the deposit into court. 
 But where the seller at the time of the bill filed is able 
 and willing to make a good title to the estate sold, and 
 the purchaser improperly refuses to complete the contract, 
 (*)although the seller is in possession of the estate, he 
 will not be compelled to pay the deposit into court, be- 
 
 (p) Cutler V. Simons, 2 Mer. 103 ; Bramby v. Teal, 3 Madd. 219 ; 
 Gill V. Watson, ibid. 225. 
 
 (7) Townshend r. Townshend, L. I. Hall, March 3, 1817, Master 
 of the Rolls for the Lord Chancellor. MS. 
 
 (r) Brown v. Kelty, Michaelmas Term, 1816, MS., the Vice-Chan- 
 cellor for the Lord Chancellor ; Townshend v. Townshend. 
 
 vol.. I. 36 (*22S) (*229)
 
 274 ^^ "TH^ CONSEQUENCES OF 
 
 cause it is the fault of the purchaser and not of the seller 
 that the latter retains both the deposit and the estate(5). 
 
 Although the defendant, by his answer, put in issue an 
 objection to the title, and both parties examine witnesses 
 to the point before the hearing, yet, upon a reference to 
 the Master, both sides may produce further evidence be- 
 fore him(^). 
 
 If the seller has vested in him legally, or equitably, all 
 the interest in the estate, it cannot be objected to the 
 Master's report in favor of the title that the legal estate 
 is outstanding, although in a lunatic, against whom no 
 commission has issued(I). The vendor has the power, 
 provided he will take the means necessary for the pur- 
 pose of making a good title. If he neglect this, the ques- 
 tion will properly arise when the Master comes to settle 
 the conveyance(w). 
 
 Where an estate is sold in lots to different persons, the 
 vendor cannot include them in one bill, for each party's 
 case is distinct, and must depend upon its own peculiar 
 circumstances, and there must be a distinct bill upon each 
 contract(a'). In demurring to a bill against distinct pur- 
 chasers, as multifarious, the defendants need not deny 
 combination (?/), although that was formerly deemed es- 
 sential(2). 
 
 If the purchaser's defence to a bill' for a specific per- 
 formance (*)rest merely on the want of title in the ven- 
 dor, he ought to depend on his answer, and not to file a 
 cross-bill to have the agreement delivered up ; because 
 
 (s) Wynne v. Griffith, 1 Sim. & Stu. 147. 
 (t) Vancouver 1'. Bliss, 11 Ves. jun. 458. 
 (u) Berkeley v. Dauh, 16 Ves. jun. 380. 
 
 (r) Rayner v. Julian, 2 Dick. 677 ; Brookes v. Lord Whitworth, 1 
 Madd. 86. 
 
 (y) Brookes r. Whitworth, 1 Madd. 86. 
 (z) Bull I'. Allen, Bunb. 69. 
 
 (I) This is not now a serious difficulty. 
 (*230) 
 
 4 
 
 ■•I ' ■
 
 THE CONTRACT. 
 
 275 
 
 the vendor can make no use of the contract if he have no 
 title(«). And a purchaser should not make the stewards 
 or receivers of the vendor parties to his bill for a specific 
 performance ; for although, as we have already seen, the 
 vendor is deemed a trustee for the purchaser, yet this rule 
 does not extend to the agents of the vendor(6). 
 
 Where the plaintiff, in a bill for a specific performance, 
 cannot prove his agreement, as laid ; but the defendant, 
 who proves the agreement to be different, offers to perform 
 specifically the agreement which he represents ; the Court 
 will execute the agreement as proved by the answer, 
 without a cross-bill, although the plaintiff should wish to 
 have the bill dismissed(c), if the Court think the defend- 
 ant entitled to a specific performance(rf)(147). 
 
 But, if a plaintiff insist upon a particular construction 
 of a contract, and the Court decides against him, he will 
 not be allowed a specific performance according to the 
 construction against which he has contended. It is not 
 like the case of a plaintiff calling upon the Court to con- 
 strue and execute an agreement according to the true 
 construction ; suggesting that which he conceives to be 
 so(e). 
 
 If a bill for a specific performance be dismissed, it 
 would require a clear and distinct case to be made out 
 and prayed, to entitle the plaintiff to an account of rents, 
 or the \\kc(f). 
 
 (*)If a purchaser have recourse to equity, and it appear 
 that the vendor has, since the filing of the bill, sold the 
 
 («) lliltoti V. Barrow, 1 Ves. jun. 284. 
 (6) Macnamara v. Williams, 6 Ves. jun. 148. 
 (0 Fife r. Clayton, 13 Ves. jun. 546. 
 {(l) Iligginson r. Clowes, 15 Ves. jun. 516. 
 (c) Clowes V. Iligginson, 1 Ves. & Beam. 524. 
 (/) Williams v. Shaw, 3 Russ. 178, and Stevens v. Guppy, 3 Russ. 
 171. 
 
 (147) See ^isketv v. Puyas, 2 Des. 145. 
 
 C*231)
 
 276 OF THE CONSEQUENCES OF 
 
 estate to another person, the Court will, it has been deter- 
 mined, refer it to a Master to inquire what damage the 
 purchaser has sustained ; and the sum which shall be found 
 due, together with costs, will be directed to be paid to 
 him(^)(148). Equity, however, cannot give the purchas- 
 er any compensation where he files a bill to Jiave the con- 
 tract delivered up on account of the defective title of the 
 vendor. But he will obtain a decree for delivering up of 
 the contract, without prejudice to his remedy at law for 
 breach of it(/0(149). 
 
 In a recent case, upon a specific performance, where 
 Lord Eldon refused to direct an issue or an inquiry be- 
 fore the Master, with a view to damages, his Lordship 
 said, that the plaintiff must take that remedy, if he chooses 
 it, at law. In Denton v. Stewart, the defendant had it 
 in his power to perform the agreement, and put it out of 
 
 (g) Denton v. Stewart, 1 Cox, 258 ; 1 Ves. jun. 329 ; 17 Ves. jun. 
 276, cited; Reg. Lib. A. 17S5, fol. 652, 717; supra, p. 116, n. ; 
 Greenvvay v. Adams, 12 Ves. jun. 395. 
 
 {h) Gwillim v. Stone, 14 Ves. jun. 128. 
 
 (148) As to the principles by which a court of equity will be govern- 
 ed in retaining a bill for a compensation in damages, in cases where the 
 agreement cannot be specifically decreed, see Hatch v. Cobb, 4 Johns. 
 Ch. Rep. 559. KempshaU v. Slone, 5 Johns. Ch. Rep. 193. Phillips 
 V. Thompson, 1 Johns. Ch. Rep. 131. Hepburn v. Auld, 5 Cranch, 
 262, 275. Sims'' Admr. v. Lewis, 5 Munf. 29. 
 
 In Fulweiler v. Baugher, 15 S. & R. 45, where the action was on 
 b®nds, being part of the consideration of land sold ; and it being agreed 
 that the'title was defective for a part, which was to be cured by a title to 
 be given by (he plaintiff, held, that in the event of the plaintiff's inability 
 to give a title, the court will grant a new trial. " It is like the case 
 where part is recovered from the vendee by adverse title ; in which case 
 the price of that part, in proportion to the residue, is to be deducted from 
 the bond, before any interest is calculated on the bond. But to this 
 there may be an exception, if the vendee has enjoyed the land during 
 the time interest is demanded ; and this is a matter of evidence for the 
 jury." 
 
 (149) See Sims^ Admr. v. Lewis, ut supra.
 
 THE CONTRA'CT. 
 
 277 
 
 his power pending the suit. The case, if it was not to be 
 supported upon that distinction, was not according to the 
 principles of the Cou^t(^), 
 
 In a late case(/c), where a seller had, after a contract 
 for sale, sold at an advance to another person, the bill 
 filed by the first purchaser prayed, that if the second pur- 
 chaser bought without notice, the seller might account to 
 the plaintiff for the advanced price. It was not necessary 
 to decide the point ; but Lord Eldon observed, that the 
 estate by the first contract, becoming the property of the 
 vendee, the effect was, that the vendor was seized as a 
 (*)trustee for him ; and the question then would be, whe- 
 ther the vendor should be permitted to sell for his own ad- 
 vantage the estate of which he was so seised in trust, or 
 should not be considered as selling it for the benefit of 
 that person for whom, by the first agreement, he became 
 trestee, and therefore liable to account. The ultimate 
 decision was, that the first purchaser was entitled to 
 a specific performance against the seller and the second 
 purchaser, the latter being considered to take subject 
 to the equity of the first purchaser, to have a convey- 
 ance of the estate at the price which he agreed to pay for 
 
 it {I). 
 
 But where the contract has been executed, a bill can- 
 not be filed simply for compensation, e. g. where the 
 rental of the estate was represented higher than its actual 
 amount(/«). 
 
 It may here be observed, that if an exception taken to 
 a report that a good title connot be made, be overruled, 
 the vendor should obtain an order for the exception to 
 
 (t) Todd V. Gee, 17 Ves. jun. 273 ; Blore v. Sutton, 3 Mer. 237, 
 
 Kendall v. Beckett, 2 Russ & Myl. 88. 
 
 (A;) Daniels v. Davison, 16 Ves. jun. 249. 
 
 (/) 17 Ves. jun. 433. 
 
 (m) Newham v. May, 10 Price, 117. ' 
 
 (*232)
 
 278 ^^ THE CONSEQUENCES OF 
 
 Stand over ; as, if disallowed, it would appear upon record 
 that a good title could not be made(n). 
 
 If the abstract be not delivered in time, or objections 
 arise to the title, the vendee may bring an action at law 
 for non-performance of the agreement, in which case the 
 vendor's remedy (if he can insist on the contract being 
 specifically perfornaed) is to file a bill for a specific per- 
 formance, and an injunction to restrain the proceedings 
 at law ; and the vendor may file his bill for a performance 
 in specie, although the vendee may have recovered his 
 deposit at law. If an injunction be granted, the Court 
 will not dissolve it without the Master's report as to the 
 (*)title, where the action is brought on the ground of 
 want of title(o). 
 
 If a purchaser, upon a bill being filed for a specific 
 performance, pay the purchase-money without putting in 
 an answer, and afterwards discover that a fraud was com- 
 mitted in the sale, he is not precluded from bringing an 
 action for damages if he come recently after discovery of 
 the deception(;j). 
 
 But if a defendant in a suit for a specific performance, 
 after a decree, bring an action at law against the plaintift' 
 in equity for damages, and the decree proceeded upon 
 the ground that he had waved the literal performance of 
 the thing, for breach of which the action is brought, 
 €. g. the time appointed for performance of the contract, 
 Equity will enjoin the action(9). 
 
 Where the purchaser has paid any part of the purchase- 
 money, and the seller does not complete his engagement, 
 so that the contract is totally unexecuted, he, the pur- 
 chaser, may affirm the agreement, by bringing an action 
 
 [n) See 1 Yes. jun. 567. 
 
 (o) Church r. Legeyt, 1 Pr. 301. 
 
 (p) Jeudwine v. Slade, 2 Esp. Ca. 257. 
 
 (g) Reynolds v. Nelson, 6 Mud. 290. 
 
 (*233)
 
 THE CONTRACT. 279 
 
 for the non-performance of it, or he may elect to disaffirm 
 the agreement ab initio, and may bring an action for 
 money had and received to his use(r)(150). 
 
 In this latter action, however, the plaintiff cannot re- 
 cover more than the money paid, although the estate has 
 • risen in value ; while, on the other hand, it may perhaps 
 be thought, that if the estate has experienced a diminu- 
 tion in value, he can only recover the damages he sustain- 
 ed by the estate not being conveyed, that being the only 
 money retained by the defendant against conscience ; 
 (*)and therefore the plaintiff, ex cequo et bono, ought not 
 to recover any niore(5)(151). 
 
 The right to disaffirm the agreement is, in some cases, 
 of great importance. If an agent enter into an agree- 
 ment on behalf of his principal, but on the face of the 
 agreement the agent appear to be the real purchaser, and 
 is so considered by the vendor, yet if the purchaser 
 actually pay the deposit, although through the medium 
 of his agent, and the vendor do not complete his engage- 
 
 (r) See 2 Burr. 1011 ; Farrer v. Nightingale, 2 Esp. Ca. 639; 
 Hunt V. Silk, 5 East, 449 ; Squire v. Tod, 1-^'amp. N. P. 293. See 
 liCvy V. IIuw, 1 Taunt. 65. 
 
 («) See Moses V. M'Farlan, 2 Burr. 1005; Dutch v. Warren, t6. 
 1010, cited ; and Str. 406 ; S. C. Dale v. Sollet, 4 Burr. 2133, sed. 
 qii 
 
 (150) See Weaver v. Benlleij, 1 Caines' Rep. 47. Gullet v. Mmj- 
 nard, 5 Johns. Rep. 85, and see S. C. note a. p. 88, where the prin- 
 cipal authorities are collected. So, a vendor, by bringing a suit and ob- 
 taining judgment for the purchase money, confirms the sale, so that he 
 cannot, afterwards, set it riside. JVelson v. Carringlon, 4 Munf. 332. 
 . (151) If there be no fraud, and no covenants taken to secure the 
 title, the purchaser of real estate has no remedy for the purchase-money 
 on a failure of title. Mbot v. Jillen, 2 Johns. Ch. Rep. 519. See 
 Dorsey v. Jackman, 1 Serg. & Rawle, 42. Howes v. ^arAer, 3 Johns. 
 Rep. 506. Note, the authority of JMoses v. JWFerlans, referred to in 
 the text, has been much questioned. See O^Harra v. Hall, 4 Dall. 
 340, 341. ; and see 1 Serg. and Rawle, 61. 
 
 (*234)
 
 230 ^^ 'THE CONSEQUENCES OF 
 
 ment, so that the contract is rescindable, the purchaser 
 himself may maintain an action for recovery of the de- 
 posit, which will be considered as money received by the 
 vendor to the use of the real purchaser(^). 
 
 But if a man enter into a contract expressly as agent 
 for a third person, although really for his own benefit, 
 and the other party has no notice that the supposed 
 agent is the principal, the latter cannot maintain an 
 action upon the contract without first disclosing to the 
 other party that he is the principal (w). 
 
 Where a purchaser rests his action on a defect in the 
 title, it is not sufficient to show that the title has been 
 deemed insufficient by conveyancers, but he must prove 
 the title bad(a;). 
 
 If he succeed in proving the title bad, he will, according 
 to the counts upon which he recovers, obtain a verdict 
 either for his deposit, or for damages, which in most 
 cases would be regulated by the amount of the deposit. 
 
 If he declare on the common money-counts, he of course 
 (*)cannot obtain any damages for the loss of his bargain; 
 and even if he affirm the agreement by bringing an action 
 for non-performancetof it, he will obtain nominal damages 
 only for the loss of his bargain(?/), because a purchaser is 
 not entitled to any compensation for the fancied good- 
 ness of his bargain which he may suppose he has lost, 
 where the vendor is, without fraud, incapable of making a 
 title(152). I 
 
 {t) Duke of Norfolk V. Worthy, 1 Camp. Ca. 337. See Edden v. 
 Read, 3 Campb. Ca. 338 ; Bethune v. Farebrother, 5 Mau. & Selw. 
 386, 391, cited. 
 
 («) Bickerton v. Burrell, 6 Mau. & Sel. 383. 
 
 {x) Camfield v. Gilbert, 4 Esp. Ca. 221. 
 
 (y) Flureau v. Thornhill, 2 Blaks. 1078 ; and see 3 Bos. & Pull. 
 167. See Brig's case, Palm. 364. .^ 
 
 (152) Where land is sold with warranty, and the purchaser is evicted, 
 the measure of damages, unless fraud has been practised, is the price 
 (*235) 
 
 li
 
 THE CONTRACT. 
 
 281 
 
 And in a late case(2), where an auctioneer who had 
 advanced some money on an estate, sold it by auction 
 after the authority from his principal had expired, and 
 the principal refused to confirm the sale, the Court of 
 Common Pleas, in an action brought by the purchaser, 
 in which he declared on the agreement, and for money 
 had and received, &:c. would not allow him damages for 
 the loss of his bargain, although it was proved that the 
 estate was worth nearly twice the sum which he gave 
 for it. 
 
 But in a recent case(«), where a person who had con- 
 tracted for the purchase of an estate, but had not obtain- 
 ed a conveyance of it, sold it by auction with a stipula- 
 tion to make a good title by a day named, but which he 
 was unable to do, as the vendor to him refused to convey, 
 it was held, that the purchaser by auction might, beyond 
 his expenses, recover damages for the loss which he sus- 
 tained by not having the contract carried into effect. Lord 
 Tenterden observed, that upon the present occasion he 
 could only say, that if it is advanced as a general proposi- 
 tion, that where a vendor cannot make a good title, the 
 purchaser shall recover nothing more than nominal dam- 
 ages, he was by no means prepared to assent to it. If it 
 were necessary to decide the point, he should desire (*)to 
 
 (z) Bratt V. Ellis, MS. Appendix, No. 7 ; and see Jones v. Dyke, 
 MS. Appendix, No. 8. 
 
 {a) Hopkins v. Grazebrook, 6 Barn. & Cress. 31 ; 9 Dowl. & R. 
 22, S. C. 
 
 agreed to be paid by the purchaser. In cases of fraud, the jury are not 
 limited to the price, but may award in damages the amount of the inju- 
 ry sustained by the loss of the land. King v. Pyle, 8 S. & R. 166. 
 If notice is duly given of the suit, and the warrantor does not defend, 
 the record of the recovery is conclusive against him, in an action of 
 covenant on the warranty. If the vendee defends without giving no- 
 tice, he cannot recover his expenses, unless in a cose of fraud or the 
 absence of the warrantor. Fuhveiler v. Baugher ct al. 16 ib. 45. 
 VOL. I. 36 (*236)
 
 it 
 
 232 OF THE CONSEQUENCES OF 
 
 have time for consideration. But the circumstances of 
 this case showed that it differed very materially from that 
 which had been quoted from Sir W. Blackstone's Reports. 
 There the vendor was the owner of the estate, and an ob- 
 jection having been made to the title, he offered to con- 
 vey the estate with such title as he had, or to return the 
 purchase-money with interest ; here no such offer was or | 
 could be made. The defendant had unfortunately put 
 the estate up to auction before he got a conveyance. He 
 should not have taken such a step without ascertaining 
 that he would be in a situation to offer some title, and 
 having entered into a contract to sell, without the power 
 to confer even the shadow of a title, he must be responsi- 
 ble for the damage sustained by a breach of his contract. 
 Mr. Justice Bayley said, that the case of Flureau v. 
 Thornhill was very different from this, for here the ven- 
 dor had nothing but an equitable title. Now where a 
 vendor holds out an estate as his own, the purchaser may 
 presume that he has had a satisfactory title, and if he 
 holds out as his own that which is not so, he may very 
 fairly be compelled to pay the loss which the purchaser sus- 
 tains by not having that for which he contracted. 
 
 This case is one of great importance, and will, 1 fear, 
 tend to much litigation before the distinction which it in- 
 troduces is thoroughly understood. 
 
 In the later case of Walker v. Moore(6), where after 
 the contract the abstract was delivered and showed a 
 good title, but it had not been examined with the deeds ; 
 the purchaser resold the estate at a profit, and then upon 
 an examination of the deeds it appeared that the title 
 was defective, and he had to pay to the second purchasers 
 the costs of investigating the title ; it was held that the 
 original purchaser could not recover from the original 
 (*)seller the costs of the resale or the costs paid to the 
 
 (6) 10 Barn. & Cres. 416. 
 (*237)
 
 THE CONTRACT. 
 
 283 
 
 second purchasers, or any damages for the loss of the 
 bargain. The case of Hopkins v. Grazebrook was said to 
 be very different from this. There the defendant had 
 sold property as his own which was not so, and the Court 
 was of opinion that the defendant being in fault, by re- 
 presenting himself as the owner of the property, the plain- 
 tiff's right was not restrained to nominal damages. Here 
 the defendants undertook to make a good title, and they 
 might honestly think they should be enabled to do so. The 
 right to dama;2,es generally was held to be concluded by 
 Flureau and Thornhill. And as to the expenses upon the 
 resale, as there was no fraud, negligence in preparing the 
 abstract was the only thing that could be imputed to 
 the sellers, and the purchaser by exercising ordinary care 
 might have averted the loss that had arisen from that 
 negligence. It is usual and reasonable, before any ex- 
 pense is incurred, to examine the abstract with the deeds, 
 and the purchaser ought not to recover expenses which 
 he had sustained by reason of his having contracted to 
 resell the premises before he had taken the trouble to 
 ascertain whether the abstract was correct or not. 
 
 But one of the Judges expressed his opinion, that if 
 the abstract had been examined with the deeds and found 
 correct, the purcliaser might perhaps have been justified 
 in acting on the faith of having the estate, and if after 
 that time he had made a sub-contract, the learned Judge 
 thought he would have been entitled to recover the ex- 
 penses attending it, if it failed in consequence of any defect 
 in the title of his vendor. And further, if there were mala 
 Jicles in the original vendor (but not otherwise), he was 
 not prepared to say that the purchaser might not recover 
 the profits which would have arisen from the resale. 
 
 In a case of this nature a purchaser is not entitled to 
 any compensation, although he may be a loser by having 
 (*)sold out of the funds, which may have arisen in the 
 
 (*238)
 
 234 ^*' '^"^ CONSEQUENCES OF 
 
 mean time, because he had a chance of gaining as well as 
 losing by a fluctuation of the price(c). 
 
 But a purchaser is entitled to interest on his deposit(6/) ; 
 and if the residue of the purchase-money has been lying 
 ready without interest being made by it, he is entitled to 
 interest on that(e). Where the plaintiff recovers under 
 a special count on the original contract, which, we have 
 seen, affirms the agreement, interest will be given as part 
 of the damages for non-performance of the agreement : 
 where he recovers under a count for money had and 
 received, which disaffirms the contract, and to which is 
 mostly added a count for interest, it may, it should seem, 
 be recovered as damages sustained by the plaintiff", by 
 reason of the money having been withheld from him. If, 
 however, the original contract is void, as, if it be a parol 
 agreement for the sale of lands, the purchaser can only 
 recover his deposit in an action for money had and re- 
 ceived, and will not be allowed interest(/j(153). 
 
 Where the plaintiff declares on the original contract, 
 and lays the expenses incurred in investigating the title, 
 &c. as special damages, he will be entitled to recover 
 them as such(^). In one'case Lord Ellenborough threw 
 out a doubt upon this(^) ; but in a subsequent case before 
 his Lordship, in which Gibbs, C. J., then at the bar, was 
 counsel for the vendor, the defendant, a purchaser, ob- 
 
 (c) Flureau v. Thornhill, 2 Blackst. 1078. 
 
 (d) See ch. 10, infra. 
 
 (e) Flureau v. Thornhill, ubi sup. 
 
 (/) Walker v. Constable, 1 Bos. & Pull. 306. In this case, how- 
 ever, the rule was laid down generally, that interest could not be re- 
 covered in an action for money had an received ; and see Tappenden 
 V. Randall, 2 Boss. & Pull. 472, sed qu. ; and see ch. 10, infra. 
 
 (g) Flureau v. Thornhill, ubi sup. ; Richards v. Barton, 1 Esp. Ca. 
 268 ; Bratt v. Ellis ; Jones v. Dyke, App. Nos. 7 & 8. 
 
 (/i) Camfield v. Gilbert, 4 Esp. Ca. 221. 
 
 (153) See Pease v. Barber, 3 Caines' Rep. 366, 367.
 
 THE CONTRACT. 
 
 285 
 
 tained a verdict for his deposit with interest, and the 
 (*)expeiises of investigating the title, without argument, it 
 being admitted that the title was defective(t) : in a still 
 later case, they were also recovered by a purchaser(/c) ; 
 and there are other cases not reported, in which I am told 
 such expenses have been recovered. If the rule were 
 otherwise, it would induce many persons upon speculation 
 to offer an estate for sale, knowing the title to be bad ; 
 and yet, in a late case at nisi prius, Mansfield, C. J. 
 held, that the purchaser was not entitled to recover back 
 the expenses of investigating the title(/). 
 
 But clearly the expenses cannot be recovered under 
 a count for money had and received ; and Lord Ellen- 
 borough has decided that they cannot be recovered under 
 a count for money paid, &c. to the defendant's use, as 
 the money is expended for the purchaser's own satisfac- 
 tion as to the title which he is about to take(m)(154). 
 Nor can the expenses of investigating the title he reco- 
 vered from the auctioneer(yi). The expense of preparing 
 the conveyances can hardly in any case be recovered, 
 
 (t) Turner v. Beaurain, Sitt. Guildh. cor. Lord Ellenborough, C. J., 
 2d June 1806. MS. 
 
 (k) Kirtlandr. Pounsett, 2 Taunt. 145. See p. 146. 
 
 (l) Wilde V. Fort, 4 Taunt. 334. Note, the C. J. also ruled, that in- 
 terest on the deposit is not recoverable, which is contrary to other autho- 
 rities ; and too large a construction, according to other authorities, ap- 
 pears to have been put on the statute of Elizabeth. 
 
 (m) Camfield v. Gilbert, 4 Esp. Ca. 221. 
 
 (n) Lee v. Munn, 1 Holt, 669. 
 
 (154) In covenant brought by the grantee against the grantor, for 
 breach of the covenant against incumbrances in a deed, the plaintiff is 
 entitled to recover, not only the purchase money, and the interest, but 
 also the costs of the ejpctment against him. Waldo v. Long, 7 Johns. 
 Rep. 173. See Slaats v. Ten Eyck's Exrs. 3 Caines' Rep. 111. 
 Pitcher v. Livingston, 4 Johns. Rep. 1. JSIarston v. Hobbs, 2 Mass. 
 Rep. 433, 440. 
 
 (*239)
 
 236 OF THE CONSEQUENCES OF 
 
 for they should not be prepared before the title is ac- 
 cepted (o). 
 
 Where a vendee brings an action on account of the 
 agreement not having been completed, he will be com- 
 pelled to give the vendor a particular of every matter of 
 fact which he means to rely upon at the trial, as having 
 been a cause of his not being able to complete the pur- 
 chase ; but he is not bound to state in his particular any 
 (*)of the objections in point of law arising upon the ab- 
 stractfjy). 
 
 But where no particular has been obtained, the plain- 
 tiff is not confined to the objections which he may have 
 stated to the defendant, but may take advantage of any 
 other, which may entitle him to recover as for breach of 
 the agreement(^). 
 
 To entitle a vendor to sustain an action for breach of 
 contract, it has been said, that he must show what title 
 he has ; it not being sufficient to plead that he has been 
 always ready and willing, and frequently offered to make 
 a title to the estate(r). In a late case(5), however, 
 where a vendor averred, that he was seised in fee, and 
 made a good and satisfactonj title to the purchaser of the 
 estate, by the time specified in the conditions of sale, it 
 was held sufficient, and that it was not necessary for him 
 to show how he deduced his title to the fee. And the 
 Court seemed of opinion, in opposition to the prior cases, 
 that a vendor need not display his whole title on the 
 record. This decision, without working an injustice, will 
 
 (o) Jarmain v. Egelstone, 6 Carr. & Pay. 172. 
 
 (p) Collet V. Thomson, 3 Bos. & Pull. 246. 
 
 (9) Squire v. Tod, 1 Camp. Cas. 293. 
 
 (r) Philips V. Fielding, 2 H. Blackst. 123; and see Duke of St. 
 Alban's v. Shore, 1 H. Black. 270 ; Luxton v. Robinson, Dougl. 620. 
 
 («) Martin v. Smith, 6 East, 655 ; 2 Smith, 643 ; and see Co. Litt. 
 303, b ; Terry v. Williams, 1 Moore, 498. 
 
 (*240)
 
 THE CONTRACT. 287 
 
 in most cases render it unnecessary to load the pleadings 
 with the title of the vendor. 
 
 But even if the title is set out, yet the execution of 
 the title-deeds need not be proved, because that is never 
 required of a vendor(i). This was decided by Lord 
 Kenyon at nisi prius. To prove the plaintiff's title to 
 a right of way sold, the deeds were produced ; and it 
 was objected, that the deeds themselves should first be 
 made evidence, by producing the subscribing witnesses. 
 (*)But Lord Kenyon ruled it not to be necessary. He 
 said, he would never allow, where the question was re- 
 specting a title, that the party should be called upon to 
 prove the execution of all the deeds deducing a long title ; 
 that it was never mentioned in the abstract, or expected in 
 making out a title in any case of a purchase, more partic- 
 ularly w here possession has accompanied them : he there- 
 fore admitted them without proof of the execution(t<). In 
 a late case, however, before Lord C. J. Mansfield, at nisi 
 prius, where in assumpsit upon an agreement to purchase 
 a leasehold house, it appeared that the plaintiff, the 
 vendor, was the third or fourth assignee of the term ; and 
 it was contended, that he need only prove the execution 
 of the last assignment : it was ruled otherwise ; and he 
 was compelled to prove the lease and all the mesne 
 assignments(2). Lord Kenyon's decision was not how- 
 ever adverted to ; and as that clearly coincides with the 
 practice in these cases, it can scarcely be considered as 
 overruled(I). 
 
 If the agreement is in the hands Of one of the parties, 
 or his attorney, equity, in case a bill is filed, will compel 
 
 (0 Thomson v. Miles, 1 Esp. Ca. 184. 
 
 (?<) Thomson v. Miles, iibi sup. 
 
 {x) Crosby v. Percy, 1 Camp. Ca. 303. 
 
 (I) The vendor's counsel cited Nash v. Turner, 1 Esp. Ca. 217 ; but 
 Mansfield, C. J. thought that it did not apply. 
 
 (*241)
 
 238 ^^ '^^^^ CONSEQUENCES OF 
 
 it to be delivered up to the other party, in order that it 
 may be stamped(i/). So, in case of an action, if only 
 one part of the agreement has been executed, the party, 
 in whose possession it is, shall be compelled to produce 
 it to the other party(z). And if there are even two parts, 
 but one only is stamped, the party having the unstamped 
 part may give secondary evidence of the contents of the 
 (*)agreement, if the other, after notice, refuse to pro- 
 duce the stamped part(a). Where one party produces 
 the agreement, under a notice from the other, the latter 
 need not call the subscribing witness to prove the execution 
 of the agreement, as the defendant takes an interest under 
 if(6)(155). 
 
 Where a contract is not completed merely on account 
 of objections to the title, and the vendor thinks his title 
 good, he frequently brings an action at law for non- 
 
 (y) Supra, p. 87. 
 
 {z) Blakey v. Porter, 1 Taunt. 3S6 ; Bateman v. Philips, 4 Taunt. 
 157 ; King v. King, ih. 666 ; Street v. Brown, 1 Marsh. 610. 
 
 (a) Garnons v. Swift, 1 Taunt. 507. See Waller v. Horsfall, 1 
 Camp. Ca. 501. 
 
 (6) Bradshaw v. Bennett, 5 Carr. & Pay. 48. 
 
 (156) Where a subscribing witness is dead or abroad, in an action 
 on the instrument it is necessary to give some evidence of the identity 
 of the party executing with the party sued, the naked proof of the 
 handwriting of the subscribing witness is insufficient. If the attestation 
 state the residence of the party, proof that the party sued resided there, 
 would, as it seems, be prima facie evidence. Whitelocke v. Musgrove, 
 1 C. St M. 511 ; 3 Tyr. 541, S. C. This case may be considered as 
 overruling the decisions of Lord Tenterden and Best, Ch. Js. in Mit- 
 chell V. Johnson, M. & M. 176 ; Page v. Mann, ib. 79 ; Kay v. Brook- 
 man, id. 286 ; and as settling a question which had long been a subject 
 of doubt at N. P. 
 
 In an action by the vendee against the vendor of an estate, to recover 
 the deposit money on a contract for the purchase, if the defendant on 
 notice produce the contract, the plaintiff need not prove the contract. 
 
 Bradshaw v. Bennett, 1 Moo. & M. 143 ; 5 C. & P. 48, S. C. 
 
 (*242)
 
 THE CONTRACT. 90Q 
 
 performance of the agreement, instead of filing a bill for a 
 specific performance. 
 
 It becomes therefore material to consider, whether 
 courts of law can take cognizance of equitable objections 
 to a title ; because, if they cannot, a purchaser should in 
 such cases file a bill in equity : he might otherwise be 
 compelled to pay damages for not accepting a title, which, 
 although good at law, might be invalid in equity. 
 
 The adtion which a vendor must bring, being founded 
 upon the equitable circumstances of the case between the 
 parties, it seems that a court of law may in such action 
 take cognizance of equitable objections to a title ; and 
 if there were any, ought not to permit the plaintiff to 
 recover. 
 
 In a recent c^se(c)., the Court of B. R. would not per- 
 mit the assignees of a bankrupt to recover money from 
 his trustees, because the deed by which the trusts were 
 created, although perhaps void at law, w^ould probably 
 be restored and set up again by a court of equity. The 
 Court, I am informed, said they would not permit the 
 (*)assignees to recover, as it would be to no purpose. It 
 would be merely driving the trustees to the other side of 
 the hall, where they would most likely regain the property^ 
 This case seems in point ; the same observation would 
 apply to a vendor endeavoring to obtain the purchase- 
 money where there were equitable objections to his title : 
 the court would naturally say, cui bono, w hen the pur- 
 chaser can compel you to repay it in equity ?(156). 
 
 (c) Shaw V. Jakeman, 4 East, 201. 
 
 (156) That the mere cancelling a deed under which one holds real 
 estate, will not divest the title or revest it in the grantor, is abundantly 
 settled. Hatch v. Hatch, 9 Mass. 311 ; Dando v. Tremper, 2 Johns. 
 87 ; Lewis v. Payn, 8 Cowen, 75 ; Botsford v. Morehouse, 4 Conn. 
 660; Gilbert r. Bulkley, 5 ib. 262; Holbrook r. Tirrell, 9 Pick. 105. 
 )3ut if the grantee delivers back his deed vilh a view (o a conveyance 
 
 VOL. 1. 37 (*243)
 
 290 O^ THE CONSEQUENCES OF 
 
 Lord Kenyon held, that a court of law could not enter 
 into equitable objections to a title ivhere the purchaser is 
 plaintiff(d) ; but Lord Alvanley(e) decided, that if a pur- 
 chaser would be liable in equity, he is entitled to recover 
 his deposit at law. The last case is certainly a very strong 
 authority, because no Judge sitting in a court of law could 
 be more averse than Lord Alvanley was to assume any 
 equitable jurisdiction^/^. His decision has been followed 
 in a recent case, which appeared to have set the point at 
 rest(^). Lord C. J. Gibbs said, that the question was, 
 whether the contract were merely for a good title, or for 
 a legal and equitable title. Now the words of the con- 
 dition were, that a good title should be made out at the 
 vendor's expense. What can the meaning of that be, 
 except that there shall be a good title both at law and 
 in equity ? The vendor, therefore, not having made out 
 a good equitable title, the contract on the part of the 
 defendant is broken. It is true that we are in a court 
 
 (<Z) Allpass V. Watkins, 8 Term Rep. 616. 
 
 (c) Elliott V. Edwards, 3 Bos. & Pull. 181. 
 
 (/) See Johnson v. Johnson, 3 Bos. & Pull. 162. 
 
 ig) Maberly v. Robins, 1 Marsh. 268 ; 6 Tatmt. 626 ; Curling t. 
 Shuttleworth, 6 Bing. 121 ; 3 Moo. & P. 368, S. C. In Willett v. 
 Clarke, 10 Price, 207, the Judges did not agree in opinion upon this 
 point. 
 
 to a purchaser, who receives a deed, without fraud, he will hold the land 
 against a creditor of the original grantee. It is no fraud upon credi- 
 tors, for he received an equivalent for his land. But where the object 
 of cancelling the deed and obtaining a new one from the grantee being 
 to defeat an attachment by a creditor if the first grantee, the convey- 
 ance will be fraudulent. Holbrook v. Tirrell, 9 Pick. 105 ; Marshall 
 V. risk, 6 Mass. 32. Parsons C. J. says " it was a vested estate in 
 S. & F. and could not be divested by cancelling the deed from A., F. 
 therefore he continued seized of his moiety, when it was taken on the 
 execution of W. against him ; because the second conveyance bjeing 
 fraudulent, is void as to the attaching creditors and because the cancel- 
 ling of A.'s first deed did not divest F. of his moiety conveyed by it."
 
 THE CONTRACT. 
 
 291 
 
 of law, but we are on the question whether the contract 
 have been complied with. According to the defendant's 
 (*)doctrine, if an estate be devised to A. B. and [in trust] 
 for C. it might be sold by A. and B. only, since they 
 could give a legal title to it without the concurrence of 
 C And, if this principle were to be followed up, the 
 defendant might bring an action for the remainder of 
 the purchase-money. The rest of the Court concurred 
 with this opinion, Mr. Justice Chambre observing, that 
 there was no reason why questions respecting equitable 
 title should not come incidentally before a court of law. 
 Yet in Boy man v. Gutch(/t), the Court of C. P. held that 
 they must decide upon the construction of the trust deed 
 under which the estate was sold, and abide by their 
 construction ; that they were not to consider themselves 
 as a court of equity where the seller is seeking to enforce 
 the purchase, in which case the Court frequently refuses 
 the aid of its authority to enforce a specific performance 
 where the title is of an unmarketable or even doubtful 
 description, leaving the party to his action at law for 
 damages, but they were called upon to answer the simple 
 question upon the record, whether on the construction 
 of a deed, the seller had or had not a legal title to con- 
 vey to a purchaser. It appeared to them that the seller 
 had the right to put up the property to sell, and to sell 
 the same. Whether a court of equity would compel a 
 purchaser to accept such a title was a question they 
 were not called upon to determine. All that they pro- 
 fessed to determine was the legal construction of the 
 deed. 
 
 Before quitting this subject, it must be remarked, that 
 in agreements for purchase, the covenants are construed 
 according to the intent of the parties ; and they arc there- 
 fore always considered dependent, where a contrary inten- 
 
 (h) 1 Biiig. 379 ; 5 Moo. & P. 222, S. C. 
 
 (*214)
 
 292 ^^ '^"^ CONSEQUENCES OF 
 
 tion (*)does not appear(z), (I). The true rule, Lord C. J. 
 Mansfield, in a late case(/f), said, was, that it is not the 
 employment of any particular word which determines a 
 condition to be precedent, but the manifest intention of 
 the parties(157). 
 
 The old law was certainly in favor of the contrary 
 doctrine(/) ; but if, as Lord Kenyon observed, the Courts 
 were to hold otherwise than they now do, the greatest 
 injustice might be done ; for supposing, in the instance of 
 a trader who had entered into a contract for the sale of an 
 estate, that between the making of the contract and the 
 final execution of it he were to become a bankrupt, the 
 vendee might be in the situation of having had payment 
 enforced from him, and yet be disabled from procuring the 
 property for which he had paid(m). 
 
 (^') As to where covenants are precedent, and where dependent, see 
 Mr. Serjeant Williams's note(4) to 1 Saund. 525. 
 
 {k) Smith V. Woodhouse, 2 New Rep. 233. See Havelock r. 
 Gedde.s 10 East, 555. 
 
 (/) 8 Term Rep. 370, 371. 
 
 (m) See Duke of St. Alban's v. Shore, 1 H. Black. 270 ; Goodis- 
 
 (I) In Morris v. Knight, T. 2 Jac. II. B. R. there were mutual cove- 
 nants : one agreed to pay a sum of money for a lease for years ; the 
 other covenanted that he should enter in twenty days, and that he would 
 make a demise thereof, from &c. and the plaintiff brought an action for 
 non-payment of the money before the demise made, held not good for 
 the lease is the consideration : so judgment for the defendant. MS. 
 
 (157) See Qiiackenboss \. Lansing, 6 Johns. Rep. 49. Barvuso v. 
 JMadan, 2 Johns. Rep. 145, 148. ; and see the opinion of the court in 
 Cunningham and JMorrell, 10 Johns. Rep. 204. As to dependent and 
 independent covenants, see Obermyer v. JMchols, 6 Binn. 159. Ben- 
 net V. Pirleij, 7 Johns. Rep. 249. See {"arihei; J\I\MiUan v. Vander- 
 lip, 12 Johns. Rep. 165. Jennings v. Camp, 13 Johns. Rep. 94. 
 Green v. Reijnolds, 2 Johns. Rep. 207. Jones v. Gardner, 10 Johns. 
 Rep. 2G6. Gasleij v. Price, 16 Johns. Rep. 267. Hardin v. Krel- 
 singer, 17 Johns. Rep. 293. Robh v. Alontgomerij, 20 Johns. Rep. 
 15. 
 
 (*245)
 
 THE CONTRACT. 
 
 293 
 
 If, therefore, either a vendor or vendee wish to compel 
 the other to observe a contract, he immediately makes his 
 part of the agreement precedent ; for he cannot proceed 
 against the other without an actual performance of the 
 agreement on his part, or a tender and refusal(158). 
 
 son t'. Nunn, 4 Term Rep. 761; Glazebrook v. Woodrow, 8 Term 
 Rep 366 ; and Heard v. Wadham, 1 East, 619 ; and see Anicourt v. 
 Elever, 2 Kel. B. R. 159 ; Carpenter v. Crcsswell, 4 Biugh. 409 ; 1 
 Moo. & P. 66, S. C. 
 
 (168) Ramsay v. Brailsford, 2 Des. 582. Green v. Rcijnolds, ut 
 supra. Porter v. J?ose, 12 Johns. Rep. 209. 
 
 According to our practice, which is different from the English, the 
 party who is to give the deed has the same drawn at his own expense ; 
 but, under a covenant to convey, he is not bound to prepare the con- 
 veyance until the parly who is to receive it is in a situation rightfully to 
 demand. And after such demand the grantor is allowed a reasonable 
 time for drawing and executing it ; and he is then to hold it ready for 
 delivery when called for and is in no default until a second demand is 
 made. The purchaser nevertheless may prepare the deed and tender it 
 for execution — and then only one demand is necessary. 
 
 The above appears to be the settled law in this state : Fuller r. Hub- 
 bard, 6 Gowen, 1 ; Connelly v. Pierce, 7 Wend. 129 ; Per V. Chan, in 
 Wells V. Smith, 2 Edw. C. R. 78. The case cited from Edwards was 
 thus ; Smith covenanted to convey to Wells the land in dispute, free of 
 incumbrance ; and Wells covenanted to build a shop before a specified 
 day ; also a dwelling-house, or instead of it pay $1000 ; and to execute 
 a bond and mortgage of the house and lot of land. But if he did 
 not pay the 1000 dollars, then the mortgage was to be made for $3700. 
 The day was specified for Smith to execute her deed. " But upon this 
 express condition and the agreement between the parties is such that 
 if the said Wells fails or neglects to perform all or any one of the cove- 
 nants herein before contained on his part, at the time or times herein be- 
 fore limited, then and in such case, all and singular the covenants and 
 agreements on the part of the said Smith shall cease and be absolutely 
 void, and all the right, title and intererst of the said Wells in law or equity 
 in the premises shall also cease, and thereupon the said Smith, her heirs 
 and assigns may immediately enter upon the premises and have and 
 hold the same, with the shop, free and discharged from any claims of 
 the said Wells." Wells failed to perform his covenants as to erectins 
 the house and securing the purchase-money. But the parties subse-
 
 294 ^^ 'I'HE CONSEQUENCES OF 
 
 Thus a vendor cannot bring an action for the purchase- 
 money, (*)without having executed the conveyance, or 
 
 quently came to an understanding that if Wells would pay Smith the 
 whole of the purchase-money on the day stipulated, the latter would then 
 give the former a deed ; but she at the same time said to the former that 
 if he permitted that day to pass, she should insist on the condition in the 
 agreement. Wells failed in paying the money at the day ; but on the 
 next day he tendered the money and demanded his deed, she refusing 
 to give a deed Wells sues his bill for a specific performance. The V. 
 Chan, considering the agreement a condition precedent, dismissed the bill. 
 The grounds of this decision are stated by our author p. 444, that time 
 was the essence of the contract. — " Where as in the present case, the 
 vendor requires and the vendee agrees to make it a condition of the con- 
 tract and they insert the same as a distinct and substantive part of the 
 agreement, namely, that a failure or neglect of the purchaser to perform 
 all or any one of his covenants at the time specified (including the pay- 
 ment of the purchase-money on a future day) shall absolutely determine 
 the contract, and the rights of the purchaser shall cease at law and in 
 equity, and the vendor be at liberty to re-enter and hold the property 
 discharged from all claim by the purchaser, it appears impossible to re- 
 gard it as an unmeaning provision. Nothing can be stronger than the 
 clause in question. It is a naked case of a condition unperformed with- 
 in time. The distinction is between a condition precedent and subse- 
 quent ; and the present is clearly a condition precedent, without any 
 vested right or title. A man enters into a contract or makes a deed of 
 settlement or a will ; and he agrees to grant or devise an estate upon a 
 condition which he declares must be performed before the person to be 
 benefited can take it. But in cases of conditions subsequent it is different : 
 the effect of a breach is to work a forfeiture or divest an estate, the court 
 can interpose upon the principle of compensation to the party and pre- 
 vent the forfeiture. It was urged that the contract was in effect a mort- 
 gage ; but no legal title or estate ever vested in the complainant ; the 
 contract being merely an agreement to convey upon a condition. 
 
 In the case of Lausenbury v. The Protection Ins. Co. 8 Conn. R. 
 459, where a policy of insurance provided that if the building should be 
 used for the purpose of storing hazardous goods, &c. the policy should 
 cease and have no eflfect, held, that this was not a condition precedent ; 
 but must be averred in pleading by way of defence. " I give to the 
 town of Stoughton, my lot of land in said town, containing eight acres, 
 &c. for the purpose of building a school house, as said town' may di- 
 rect ; provided it is built within 100 rods of the meetinghouse — remain- 
 
 (*246)
 
 THE CONTRACT. qQA 
 
 offered to do so, unless the purchaser has discharged him 
 from so doing(/i) ; but if the purchaser give a bill of ex- 
 change, or other security, for the purchase-money, paya- 
 ble at a certain day, he must pay it when due, and cannot 
 resist the payment even in the case of a bill of exchange, 
 on the ground that there was no consideration for the 
 drawing of the bill, because the seller has refused to con- 
 vey the estate according to the agreement. But he will 
 have his remedy upon the agreement for the non-execu- 
 tion of the conveyance(o). 
 
 On the other hand, a purchaser cannot maintain an ac- 
 
 (n) Jones v. Barkley, Dougl. 684 ; Philips v. Fielding, 2 H. Black. 
 123 ; and see 3 East, 443. 
 
 (o) See Moggridge v. Jones, 14 East, 486 ; 3 Camp. Ca. 38 ; and 
 see Swan v. Cox, 1 Marsh. 176 ; Spiller v. Westlake, 2 Barn. & 
 Adolp. 165. 
 
 der to the demandants. Although they accepted the donation, they 
 neglected building the house. The Court decided that this was upon a 
 condition subsequent and that the estate vested immediately ; but that 
 the town had forfeited the estate by neglecting to comply with the condi- 
 tion in a reasonable time. (Hayden v. Stoughton, 5 Pick. 528. 10 ib. 
 309.) And acceptance of perfennance after the time has expired by 
 the terms of the contract is prima facie evidence of a continuance of 
 the contract in its original terms ; but this is open to explanation. Mer- 
 rill i». Emery, 10 Pick. 607. But where an indenture and the estate 
 created by it were to be void and cease ; and the right to the landlord 
 to re-enter upon failure to perform the condition in respect to the pay- 
 ment of the rent, The Court Savage C. J., decided that the plaintifT 
 could not sustain his action for the non-payment of rent without 
 showing a demand made of the rent, on the day it fell due, at a conve- 
 nient time before sun-down. He could not recover under the statute, 
 because there was property on the premises, which might have been dis- 
 trained. 3 Wend. R. 230. 
 
 An instrument which in form imports to be an absolute conveyance, 
 may be determined to be a mortgage, whilst another importing on its 
 face to be a mortgage may be determined to be a conditional sale, ac- 
 cording to the intention of the parties, as evinced by testimony aliunde.
 
 296 ^^ '^^^ CONSEQUENCES OF 
 
 tion for breach of contract, without having tendered a 
 conveyance, and the purchase-monejQ;). 
 
 This last position has, however, been rendered doubtful 
 by some recent dicta of the Judges(9'), that it is incum- 
 bent on the vendor to prepare and tender a conveyance, 
 which, as a general rule, certainly seems to have pre- 
 vailed when the simplicity of the common law reigned, 
 and possession was the best evidence of title ; but upon 
 modifications of estates being introduced, which were 
 unknown to the common law, and which brought with 
 them all the difficulties which surround modern titles, it 
 became necessary to make an abstract of the numerous 
 instruments relating to the title, for the purpose of sub- 
 mitting it to the purchaser's counsel : and it then became 
 usual for him to prepare the conveyance. This practice 
 (*)has continued, and is now the settled rule of the profes- 
 sion : the rule is, indeed, sometimes departed from, but 
 this seldom happens, except in the country, and it always 
 arises from consent, or express stipulation(159). 
 
 (p) See 1 Esp. Ca. 191 ; ex f arte Hylliard, 1 Atk. 147. 
 
 \q) Lord Rosslyn, in Pincke v. Cuiteis, 4 Bro. C. C. 332 ; Mac- 
 donald, C. B. in Grovvsock v. Smith, 3 Anstr. 877 ; Lord Kenyon, in 
 Heard v. Wadham, 1 East, 627 ; and Lord Eldon, in Seton v. Slade, 
 7 Ves. jun. 278. 
 
 (159) Tlie law in Pennsylvania is different. In Sweitzer v. Hum- 
 mel, 3 S. & R. 228, where the vendor covenanted, that upon payment 
 of the purchase money he would give a title to the purchaser ; held, that 
 he was bound to prepare and lender the deed of conveyance : 'it is evi- 
 dent,' said the Chief Justice, ' that what may be a very convenient prac- 
 tice in England, may be very inconvenient here.^ But, if the purchaser 
 deny having made the purchase, without other objection, this was held, 
 to dispense with a tender of the deed ; for it would be a nugatory act 
 for the vendor to tender a deed, which the purchaser told him he would 
 not accept. Hampton v. Speckenagle, 9 ib. 212. 
 
 In Hudson v. Swift, 20 Johns. 27, it was settled, that to put the ven- 
 dor in default, and entitle the vendee to recover so much of the pur- 
 chase money as he had paid in advance, he must tender the residue and 
 
 (*247)
 
 THE CONTRACT. 
 
 297 
 
 In a late case(r), this point came distinctly before the 
 Court of Exchequer, and it was, in conformity to the pre- 
 
 (rj Baxter v. Lowi^, 1 Furrest's Rep. Exrh. 61 ; and see Martin t'. 
 Sinilh, 2 Smith, 543 ; but see Standley r. Kcmmington, 6 Taunt. £61 ; 
 2 Marsh. 276, S. C. 
 
 demand a conveyance. And in the subsequent case of Fuller v. Hub- 
 bard et al. 6 Cowen, 1, where defendants agreed in writing to sell a lot 
 of land to the plaintifTfor the consideration of $600; the sum of $100 
 was paid at the time : And the residue was to be paid in three instal- 
 ments, when a conveyance was to be made in fee, il was held, that the 
 vendee was not entitled to maintain an action on the agreement, with 
 money counts, although he had paid the whole of the purchase money : 
 it being incumbent on him to show that he had demanded a conveyance, 
 and atlcr wahing a reasonable time, he had offered also to receive it. 
 
 So, on the other hand, v.hcre the consideration money, though paya- 
 ble by instalments, was ail due before the vendor sued his action of co- 
 venant on the contract ; and the breach assigned was the non-payment 
 of the whole consideration money, held, that the plaintiff was bound to 
 declare precisely as though the action had been brought for the last in- 
 stalment, viz. — must aver a tender of the deed by the plaintiff. The 
 Court, Suthrnland, J. said, " The defendant covenanted to pay the 
 plaintiff for the land in three equal annual payments ; ' and upon the 
 paijment thereof, (the covenant proceeds) / am to receive a good warran- 
 tee deed of said land.^ The payment of the money of the last instal- 
 ment, and the giving of the deed, were to bo concurrent acts. It is well 
 settled that covenants like these are dependent, and that neither party 
 cun recover against the other without averring a tender of performance 
 on his part ; a mere readiness to perform is not sufficient. If the ven- 
 dor sues for the consideration money, he must aver a tender of such as 
 by the terms of his contract, he was to give. If the action is brought 
 by the vendee against the vendor for not conveying, he must aver a ten- 
 der of the consideration money before suit brought. Johnson v. Wy- 
 gant, 1 1 Wend. R. 48 ; S. P. Green v. Reynolds, 2 Johns. 207 ; Jones 
 r. Gardner, 10 ib. 266, and in Parker v. Parmele, 20 ib. 130. In the 
 case last cited, it was held, that the vendor could not recover upon an 
 averment that he was at the day ready and willing to convey, but he 
 must allege an absolute tender or offer to convey. 
 
 The cases of Northrup v. Northrup, .6 Cowen, 296, and Slocum i<. 
 Despard, 8 Wend., 615, 18, acknowledge the same general doctrine; 
 but the covenants were held to be independent, t'rom the circumstance 
 that the money was to be paid to a third person, and not to the vendor; 
 
 VOL. I. 38
 
 298 ^^ THE CONSEQUENCES OF 
 
 sent practice of the Profession, decided, that the purchas- 
 er, and not the vendor, is bound to prepare and tender the 
 
 and that the vendee was of course bound to produce evidence of the 
 payment having been made before the vendor was bound to convey. 
 There, a general averment of readiness on the part of the vendor was 
 held sufficient ; because the circumstance mentioned indicated the un- 
 derstanding of the parties that the payment was to be first made. 
 
 In the case of Brown v. Bellows, 4 Pick. 179, where (he plaintiff su- 
 ed in covenant broken upon an indenture wherein the plaintiff agreed to 
 convey all his right, title, interest, &c. in a certain mill, &c. at the 
 price which should be awarded by certain arbitrators ; and the defend- 
 ant agreed to pay for the same, on delivery of the deed ; to the per- 
 formance of which a penalty was annexed ; held^ that if the plaintiff 
 conveyed by metes and bounds, and made a tender of the deed, it was 
 sufficient, although the deed did not pursue the words of the agreement. 
 The deed was sufficient to pass the property in the grantor's possession, 
 with all his right and title to the same, just as if the words had been in- 
 serted. The case, said Putnam J. is like Martin v. Smith, 6 East, 655 
 in principle. The tendering of the deed was a performance, so far as 
 concerned the plaintiff ; and " it is a rule common to all conditions 
 of obligations, that they be taken to be accomplished, when the debtor, 
 who is obliged under such condition, has prevented its accomphshment." 
 1 Evan's Pothier, 121. 
 
 In Hunt V. Livermore, 6 Pick. 395, the plaintiff gave the defendant 
 a bond for a deed of certain land ; and the defendant on the same day 
 made his promissory note to the plaintiff for the consideration money, 
 for which the plaintiff acknowledged by receipt, which recited, " but 
 provided the bargain is not carried into effect, I am to deliver up said 
 note upon said Livermore's delivering said bond." The Court held, 
 that the plaintiff was not entitled to an action on the note without show- 
 ing an offer on his part to give a good deed of the land; the bond, 
 note and receipt being parts of the same contract. 
 
 So, in Danar. King, 2 ib. 155, where the defendant agreed in writing 
 to buy of the plaintiff within a certain time a certain number of shares 
 in the U. S. Bank, and the plaintift' agreed to sell : the price to be paid 
 when the shares should be transferred : held, that the plaintiff could not 
 maintain an action for the money, without averring and proving that he 
 had offered to do what belonged to him to perform. And a clause in the 
 agreement providing as to payment of the purchase-money, " which 
 payment and transfer are to be made at any time after one month and 
 within one year as aforesaid, at the option and request of the defendant 
 or his assigns, he or they giving the plaintiff one week's notice to do
 
 THE CONTRACT. 299 
 
 conveyance. In the early case of Webb v. Bettel(5), the 
 same rule was expressly recognized by Windham, J. and 
 denied by no one. He said, " that where a person is to 
 execute a conveyance generally, there the counsel of the 
 purchaser is intended to draw it, and then the purchaser 
 ought to tender it. 
 
 It is settled, that if a conveyance is to be prepared at 
 the expense of a purchaser, he is bound to tender '\t(t). 
 Now it is admitted on all hands, that the expense of the 
 conveyance must be borne by the purchaser, if there be 
 no express stipulation to the contrary. Therefore, where 
 there is no such stipulation, the purchaser is bound to 
 tender the conveyance. 
 
 Upon the wdiole, notwithstanding the recent dicta to 
 the contrary, as the precise point came before the Court of 
 Exchequer, in Baxter v. Lewis, and their decision accords 
 with the uniform practice of conveyancers, which has 
 always met with the greatest attention in courts of jus- 
 tice(w), we may be warranted in saying, that the pur- 
 chaser, and not the vendor, ought to prepare and tender 
 the conveyance. 
 
 («) 1 Lev. 44. 
 
 {t) Seward v. Willock, 5 East, 198. 
 
 <«) See 2 Atk. 208 ; 1 Term. Rep. 772 ; Wilmot, 218. 
 
 the same," did not vary the case. " If the defendant did not request 
 the transfer till within a week before the expiration of the year, the 
 plaintiff should then, or perhaps any time before the year expired, have 
 offered to transfer the stock. Not having done that both parties have 
 suffered the contract to die." The case of Collins v. Gibbs, is decisive 
 upon this point. 
 
 But where a party has performed his contract in part, and has been 
 prevented by inevitable accident from fulfilling, he is entitled to com- 
 pensation for the part performed, on an implied promise. 4 Pick. 101. 
 
 (*243)
 
 ^QQ OF THE consequencp:s of 
 
 If the purchaser is required by the agreement to prepare 
 (*)the conveyance, it is clear that the vendor may maintain 
 an action, or file a bill, without tendering a conveyance(a:) ; 
 and therefore, to prevent all doubt on this point, it seems 
 advisable to stipulate in the agreement or conditions of 
 sale, that the conveyance shall be prepared by, and at the 
 expense of, the purchaser. A purchaser must, how^ever, 
 prepare the conveyance, although it is merely declared 
 that the conveyance shall be at his expense(^). 
 
 But although a purchaser is expressly required to pre- 
 pare a conveyance, yet if a bad title be produced, he may 
 maintain an action for recovery of his deposit, without 
 tendering a convey ance(2). So where a vendor has, by 
 selling the estate, incapacitated himself from executing 
 a conveyance to the first purchaser, that renders further 
 expense and trouble on his part unnecessary ; and he may 
 accordingly sustain an action without tendering a convey- 
 ance, or the purchase-money («). 
 
 Although a seller's bill for a specific performance be 
 dismissed, yet he may, in general, still bring his action at 
 law for breach of the agreement ; and there are instances 
 of sellers recovering damages in such cases. Where 
 the Court refuses its interference, and yet thinks that the 
 seller is entitled to enforce his contract at law, it is usual 
 to add a declaration to the decree, dismissing the bill, 
 that it is without prejudice to the plaintiff's remedy at 
 law. Where such a declaration is not added, equity will 
 restrain the seller from bringing an action in a proper 
 
 (.v) Hawkins v. Kemp, 3 East, 410. 
 
 (i/) Seward v. Willock, 5 East, 198. 
 
 (z) Seward v. Willock, tibi snp. ; S. P. ruled by Lord Ellenborough, 
 C. J. in Lowndes v. Bray, Silt, after T. T. 1810. 
 
 (a) Knight v. Crockford, 1 Esp. Ca. 184. See Duke of St. Alban's 
 V. Shore, 1 H. Black. 270. 
 
 (*248) 
 
 J
 
 THE CONTRACT. 3Q| 
 
 case ; for example, where the bill was dismissed because 
 the seller had no title(6). 
 
 (*)Where a purchaser is let into possession on a treaty 
 for purchase, he does not become tenant to the seller ; 
 and if the seller cannot make a title, it is doubtful whether 
 an action will, under any circumstances, lie against the 
 purchaser. It is settled that the action will not lie where 
 the occupation has not been beneficial to him(f:), beyond 
 the mere protection from the inclemency of the weather, 
 and if he paid the money, of which the seller might have 
 made interest, although the jury expressly find that the 
 value of the house, during the occupation of the purchaser, 
 exceeds the interest ot the money paid, yet the seller 
 cannot recover(f/) ; for it is impossible to make the rules 
 of law depend on the balance of loss or gain in each 
 transaction : one party must take back his money, and the 
 other take back his house. A contract cannot arise by 
 implication of law, under circumstances, the occurrence 
 of which neither of the parties ever had in their contem- 
 plation. 
 
 But as the possession is in these cases lawful, being 
 with the assent of the seller, an ejectment will not lie 
 against the purchaser without a demand of possession, 
 and refusal to quit(e) ; unless upon possession being given 
 to him, he agreed to quit possession if he should not pay 
 the purchase-money on a given day, or the like ; in which 
 case an ejectment will lie, without notice, on non-per- 
 formance of his agreement. The agreement operates in 
 
 (&) M'Narnara v. Arthur, 2 Ball & Beat. 349. 
 
 (c) Hearne v. Tomlin, Peake's Ca. 192. 
 
 {d) Kirtland v. Pounsett, 2 Taunt. 46. 
 
 (e) Doe V. Jackson, 1 Barn. & Cress. 448 ; Right r. Beard, 13 
 East, 210. See Hegan v. Johnson, 2 Taunt. 148; Doe v. Lawder, 1 
 Stark. 308 ; Doe r. Boulton, 1 Mood. & Malk. 148 ; Doe v. Waller, 
 1 Carr. & Payn. 695. 
 
 (*249)
 
 gQ2 OF THE CONSEQUENCES OF 
 
 the same manner as a clause of re-entry on breach of cov- 
 enant in a lease(/)(160). 
 
 (/) Doe V. Sayer, 3 Camp. Ca. 8. The same doctrine is extended 
 to an ao-reement for a lease, Doe v. Smith, 6 East, 630 ; Doe r. Breach, 
 6 Esp. Ca. 106. 
 
 (160) In Pennsylvania, an action for the purchase-money produces the 
 same fruit as a bill in equity ; for there it is the only resort of carrying 
 the contract into full efiect ; permitting the defendant, under the plea of 
 payment, to give in evidence every circumstance which vi^ould influence 
 a chancellor on a bill for specific performance. In Huber v. Burke, 
 (11 S. & R. 238.) which was debt to recover the penalty in articles of 
 agreement ; and held, that in that action the vendor may go for dama- 
 ges only, and retain the land ; in which case the breach must be assign- 
 ed exactly in the same way as where he would go for the purchase-mo- 
 ney, if that were permitted him. But to permit him, said the Court, 
 Gibson J., to go either for damages or the purchase-money, accord- 
 ing to the case he might be able to make out, would involve the absurd- 
 ity of an arbitrary discretion in the jury, to hold the vendee to the bar- 
 gain, or absolve him from it, on payment of a compensation in dam- 
 ages ; which it was determined in Witman v. Ely, 4 S. & R. 266, they 
 cannot exercise. The vendor ought therefore to count specifically for 
 the purchase-money as such. That may be done in an action of debt, 
 directly on the covenant to pay, by setting out the covenant, perform- 
 ance on his own part, and failure on the part of the vendee, and con- 
 cluding in the usual form. Debt on covenant may be supported at com- 
 mon law ; but he is not entitled to recover the whole purchase-money, 
 if there be incumbrances remaining ; for the vendee should be in a 
 condition to tender a title, at least before suit brought. Damages, 
 therefore, and not the price of the land, are the legitimate fruit of an 
 action in this form. But in the case of Cassell v. Cooke, 8 S. & R. 
 268, it was held, that a defendant was not entitled to reduce the pur- 
 chase-money sued for by proof of special damage sustained by reason 
 of the deed not being delivered to him on the day stipulated, without first 
 showing that he offered to pay the purchase money. 
 
 The law would seem to be settled in Pennsylvania from the case of 
 Steinhauer v. Witman, 1 S. & R. 438 to the present time, that a ven- 
 dee may avail himself of a defence against paying the purchase-money, 
 founded on defect of title, even where he had accepted of a conveyance 
 with special warranty only. And in Hart v. Porter, 5 S. & R. 201, it 
 was held, that a defendant who is sued for the purchase-money may de-
 
 THE CONTRACT. 
 
 303 
 
 A writ of ne exeat regno lies against a purchaser 
 (*)who has not paid the purchase-money, upon his threat- 
 ening to go abroad, if the vendor's title has been accept- 
 ed(^), or there has been a decree for a specific perform- 
 ance after the title has been investigated(/i). But although 
 the purchaser has taken possession of the property, and 
 received the rents after the delivery of the abstract, yet 
 the writ cannot issue ; for unless the Court can make it 
 out to be quite clear that there must be a specific per- 
 formance, it cannot grant the writ(z). 
 
 If a man convey his estate to trustees to sell and pay 
 debts, and afterwards file a bill to stop the sale, on the 
 ground that the trustees, by giving shorter notice of the 
 intended sale than was usual, and other circumstances, 
 would materially injure the sale, the Court will not grant 
 an injunction upon the filing of the bill to restrain the sale, 
 although it is sworn that the sale is to be made the next 
 day. It is not one of those cases in which, on account of 
 irreparable injury to the plaintiff, the Court proceeds in 
 this summary way. If the trustees shall be guilty of a 
 
 (g) Goodwin V. Clarke, 2 Dick. 497 ; and Anon, ibid, note ; see 
 Jackson v. Petrie, 10 Ves. jun. 164. 
 
 (/i) Boehm v. Wood, 1 Turn. & Russ. 332. 
 (t) Morris v. M'Neil, 2 Russ. 604. 
 
 fend himself on account of a defect in the title, though there be no cov- 
 enants on which he can have recourse ; and in a case where there has 
 been no eviction. Tilghman, C. J. concluded his judgment of the 
 court thus : — " Considering then, that it was decided in Steinhauer r. 
 Witman, that a purchaser not having paid his money, may defend him- 
 self under a defect of title, where part of his purchase has been evicted, 
 although he has accepted of a conveyance with no more than special 
 warranty, and considering that where there has been no eviction, it would 
 be against equity, to compel payment of the whole purchase-money, for 
 a defective title." It is to be understood, that this opinion is confined to 
 the case of a purchaser who has no covenants on which he can have re- 
 course to the seller. 7 ib. 43. 
 
 (*250)
 
 3Q4 OF THE CONSEQUENCES OF 
 
 breach of trust in making the proposed sale, they will be 
 answerable to the plaintiff for the damage sustained (/c). 
 
 Where a man sells an estate for an annuity, without any 
 agreement being made respecting the security to be given 
 for it, he is entitled to have it secured, not only upon the 
 estate, but also by the bond of the purchaser, and a 
 judgment to be entered up against him(/). In Ker v. 
 Clobery(m), which came before the Court upon a peti- 
 tion between the heir and executor, it appeared that the 
 (*)equity of redemption was sold to the mortgagee for the 
 mortgage-money, and a life-annuity to be paid to the 
 seller and his wife, and the survivor of them, but nothing 
 was said as to the mode in which the annuity was to be 
 secured. It w^as held to be a purchase of the equity of 
 redemption, subject to the annuity, which ought to be 
 charged on the estate. It was an interest reserved by the 
 seller out of the estate. 
 
 A purchaser of an estate subject to incumbrances must 
 indemnify the vendor against them, although he did not 
 expressly engage to do so. 
 
 Thus a purchaser of a leasehold estate must covenant 
 with the vendor to indemnify him against the rents and 
 covenants in the lease, although he is not required to do 
 so by the agreement for sale(n). 
 
 So, although a purchaser of an equity of redemption 
 enter into no obligation with the party from whom he 
 purchases, to indemnify him from the mortgage-money, 
 yet equity, if he receives the possession, and has the pro- 
 fits, would, independently of contract, raise upon his con- 
 science an obligation to indemnify the ^vendor against the 
 personal obligation to pay the mortgage-money; for hav- 
 
 (k) Pechellr. Fowler, 2 Anstr. 560. 
 
 (/) Remington v. Deverall, 2 Anstr. 650. 
 
 (m) V. C. 27 Mar. 1819, MS, 
 
 (») Pember v. Mathers, 1 Bro. C. C. 62, et supra, p. 38. 
 
 (*251)
 
 THE CONTRACT. 
 
 305 
 
 ing become owner of the estate, he must be supposed to 
 intend to indemnify the vendor against the mortgage(o). 
 
 And if a purchaser who has not obtained a conveyance 
 sell to another, the second purchaser is, without entering 
 into a covenant, bound to indemnify him against any costs 
 incurred in proceedings for his beneiit(p). 
 
 If a seller agree to give a real security as an indemnity 
 to a purchaser upon his accepting the title, he will be 
 compelled specifically to perform it, although he has not 
 (*)sufficient real estate, and offers a sufficient security up- 
 on personal estate. (</). 
 
 It seems that where a mortgagor has agreed to convey 
 his equity of redemption to the mortgagee, the proceed- 
 ings in an ejectment by the mortgagee cannot be stopped 
 under the 7 Geo. 2, c. 20, for the effect of it would be to 
 strip the mortgagee of his legal title, which might let in a 
 posterior equitable right to the prejudice of the mort- 
 gagee, though he should thereafter obtain a decree for the 
 performance of the agreement(r). But the relief will be 
 granted to the mortgagor, where the mortgagee has not 
 taken any steps to complete his contract for the purchase 
 of the equity of redemption(5.) 
 
 A purchaser of an estate let to a tenant from year to 
 year may, without a new contract, or any act correspond- 
 ing to attornment, recover the rent ; and nothing would be 
 a good defence in an action brought for it but the fact that 
 he did not know of the sale, and had paid his rent before 
 to his lessor(i). So, if the estate is in lease, the purchas- 
 
 (o) See 7 Ves. jun. 337, per Lord Eldon ; see Crafts v. Tritton, 8 
 Taunt. 365; 2 Moo. 411, S. C. 
 
 (p) Per Lord Eldon, in Wood r. Griffith, 12 Feb. 1818, MS. 
 
 (9) Walker v. Barnes, 3 Madd. 247. 
 
 (r) Goodtitle v. Pope, 7 Term Rep. 185. 
 
 (s) Skinner r. Stacy, I Wils. 80. 
 
 (t) See 1 Vern. & Scriv. 289 ; Birch v. Wriglil, 1 Term Rep. 378. 
 See Lumley v. Reisbeck, 16 Ea?t, 99. 
 
 VOL. 1. 39 (*252)
 
 OQg OF THE CONSEQUENCES OF 
 
 er is entitled to the benefit of covenants entered into by 
 the lessee with the vendor(w), and may recover for a 
 breach of the covenants before his time, if he is seized of 
 the reversion during the continuance of the term(:r) ; and 
 he may, after notice to the tenant of the conveyance, dis- 
 train for rent in arrear(?/), whether the estate be freehold 
 or leasehold(I). 
 
 (u) See post, ch. 13, sect. 1, n. (1). 
 
 {:r) Davis's case, M. T. 42 Geo. IIL Woodfall's Land, and Ten. 
 529, 2d edit. 
 
 (y) See Moss i\ Gallimore, Dougl. 259 ; Pope v. Biggs, 9 Barn. & 
 Cress. 245 ; 4 Man. & R. 193, S. C. 
 
 (I) It was recently proposed to deprive all middle-men, even in 
 England, of the right to distrain tor rent in arrear. Thus, suppose a 
 building lease to be granted by John to James fw ninety-nine years, 
 at 10/. a year ; James builds a valuable house, and underlets to Joseph,, 
 for forty years, at 100/. a year; and Joseph underlets to Jacob, for 
 thirty years, at 120/. a year; it is manifest that James hus the greatest 
 interest in the property ; and, as the law now appears to stand, he 
 can distrain for his rent, notwithstanding the last underlease. This 
 right was proposed to be taken from him, but the measure wa» 
 dropped. 
 
 In support of the measure, it was contended, that none but the original 
 essor is entitled to distrain for rent, according to the law of England; 
 and therefore that, in the case which I have put, James would not be 
 affected by the act ; because he would not, as the law now stands, be 
 entitled to distrain. The argument, which was managed with great in- 
 genuity, was rested upon the statute of quia emptores, and some passages 
 in Coke upon Littleton. When it is considered, that the right of distress,, 
 in the case above supposed, has never been disputed, it will not be mat- 
 ter of surprise, that the attempt to show that the practice is illegal did 
 not succeed. That rent may be distrained tor, although fealty is not 
 incident to it, is laid down in Co. Litt. 142, b. ; and it seems to be clear, 
 that distress is incident to every rent at common law, where the lessor 
 has a reversion : and that a reversion of a single day is, for this purpose, 
 as operative as a reversion in fee. In the year-book, 14 Edvv. III. p. 8. 
 Finchden thought, that if a lessee leased all his estate rendering rent, he 
 could not distrain; he had no reversion. In the 2d Edw. IV. p. 11, the 
 very objection was taken, where the lessor had a reversion ; because it 
 was only the reversion of a chattel ; but it was held, that he had a right
 
 THE CONTRACT. 
 
 307 
 
 (*)If a person having a right to an estate, purchase it of 
 another person, being ignorant of his own title, equity 
 (*)win compel the vendor to refund the purchase-money, 
 with interest from the time of bringing the bill, although 
 no fraud appear(2)(161). 
 
 (z) Bingham v. Bingham, 1 Ves. 126. See Lansdown v. Lans- 
 down, Mose. 364 ; Saunders v. Lord Annesley, 2 Scho. & Lef. 101 ; 
 Leonard v. Leonard, 2 Ball & Beatty, 171. 
 
 to distrain. In Brooke's Abridgment, Distress, case 45, and Rents, 
 case 17, it is laid down, on the authority of this case, that if a man 
 lease for twenty years, and the lessee leases over for ten years, render- 
 ing rent, there, if he grant the rent over to another man, he cannot 
 distrain ; because he has not the reversion of the term, which gives 
 the right to distrain : contrary, if he had granted to him the reversion 
 and the rent. Note the diversity. In Wade v. Marsh, Latch, 211, it 
 was held, that the lessor having only a reversion for years, may, by the 
 common law distrain for the rent, by reason of the reversion, which 
 causes privity. These cases appear to be quite decisive. The only 
 difficulty has been to find a case ; for the point has not been doubted 
 for centuries. It is to be hoped, therefore, that the right of mesne 
 landlords to distrain for rent will not be violated, on the ground that it 
 depends upon a practice not sanctioned by law, and which ought to be 
 abolished ; but if it shall appear, as it is alleged, that the remedy has 
 been the source of great oppression against the tenantry of Ireland, 
 the Legislature will, I confidently hope, extend its protection to so 
 valuable a race of men, as far as may be consistent with a due regard 
 to the rights, of landlords : for, as Justice Twisden observed, we musj 
 not steal leather to make poor men's shoes. 
 
 (16!) The case of Lawrence v. Beaubien, 2 Bailey's S, C. R. 623, 
 decided that a mistake of law was a ground of relief from the obliga- 
 tions of a contract, by which one party acquired nothing, and the other 
 neither parted with any right, nor suffered any loss, and which ex aequo 
 el bono ought not to be binding ; and it made no difference, that the 
 parties were fully informed of the fads, and the mistake as to the law 
 was reciprocal. But the evidence should show a palpable mistake, and 
 not mere ignorance of the law. The mere compromise, however, of a 
 doubtful right will not be a ground of setting aside the contract. John- 
 son, J. said " it was well remarked in Fletcher v. Toilet, 5 Ves. 14, 
 that 'ignorance is not mistake.' " In Shotwell v. Murray,* 1 J. Ch. 512, 
 
 (*253) (*254)
 
 gQg OF THE conseql"ENc;es of 
 
 So where a person sold a remainder expectant upon an 
 estate-tail, and both parties considered that the remainder 
 was unbarred, and it afterwards appeared that a recovery 
 had been suffered before the contract, the purchaser was 
 relieved against a bond which he had given for the pur- 
 chase-money, and the seller was compelled to repay the' 
 interest which he had received(«). This was a strong 
 decision. The purchaser might have ascertained the fact 
 by search. The Chief Baron laid down some very ge- 
 neral propositions. His Lordship said, " that if a person 
 sell an estate, having no interest in it at the time, and 
 takes a bond for securing the payment of the purchase- 
 money, that is certainly a fraud, although both parties 
 
 (a) Hitchcock v. Giddings, 4 Price, 135. 
 
 and Ijyon r. Richmond, 2 ib. 56, Chancellor Kent seems to have adopt- 
 ed the cases of Bilbie v. Lumley, 2 East, 469 and Brisbane v. Dacres, 
 5 Taunt. R. 143, as an authority upon the point, but neither of these 
 cases turned upon the precise point. In the first, the mistake was in 
 relation to a collateral matter ; and the last was judicium red ditum in 
 invitum. The learned judge after citing Lansdown v. Lansdown, 
 Mosely, 364; Bingham v. Bingham, 1 Ves. Sen. 126; and the dicta 
 of Ch. J. De Grey, 2 Wm. Bl. 825, Lord Mansfield in Bize v. Dicka- 
 son, 1 Term, 286 in support of his position : then proceeded to the case 
 of Hunt V. Rousmanier, 8 Wheat. R. 215 in which Chief J. Marshall 
 remarks, that '* although we do not find the naked principle, that relief 
 may be granted on account of ignorance of the law asserted in the 
 books, we find no case in which it has been decided, that a plain and 
 acknowledged mistake in law is beyond the reach in equity." And in 
 remarking on the case of Lansdown v. Lansdown, he observes, that al- 
 though objectionable in other respects; "yet, as a case in which relief 
 has been granted on a mistake in law, it cannot be entirely disregard- 
 ed." And although the case of Hunt v. Rousmanier ultimately turned 
 upon another question, see 1 Pet. 1, it shows very clearly the opinion 
 of that great jurist. See the argument of the learned editor of Pothier, 
 2 Evans Poth., app. '269. " For myself, I have no hesitation incoming 
 to the conclusion, that contracts, founded on a plain and palpable mis- 
 take of the law, t>om a known state of facts, and capable of proof, ought 
 not to be enforced. O'Neal!, .J. concurred.
 
 THE CONTRACT. gQ9 
 
 should be ignorant of it at the time(6). Suppose I sell 
 an estate innocently, which at the time is actually swept 
 away by a flood, without my knowledge of the fact, am 
 I to be allowed to receive 5,000/. and interest, because 
 the conveyance is executed, and a bond given for that 
 sum as the purchase-money, when, in point of fact, I had 
 not an inch of the land so sold to sell(c) ?" Both these 
 cases, when they arise, will, it is apprehended, deserve 
 (*)great consideration before they are decided in the pur- 
 chaser's favor. The decision must be the same, whether 
 the money is actually paid or only secured(6/)(I)(162). 
 
 (6) But see 2 Cro. 196; 2 Ld. Raym. 1118; 1 T. Rep. 755; 2 
 Freeni. 106 ; and post, ch. 9, s. 6. 
 (c) See ch. 6, s. 2, post. 
 {d) See post, ch. 9, s. 6. 
 
 (I) In a late case before Lord Eldon,his Lordship expressed consider- 
 able doubt upon the doctrines in the case in the Exchequer. 
 
 (162) The principle asserted in the text, seems to rest upon the 
 ground that the maxim ignoraniiu juris ??on exci/sa/, is applicable only in 
 the administration of criminal law. In Lansdown v. Lansdown, cited 
 ut svpra, the Lord Chancellor says, " That Maxim of law, ignorantia 
 jtiris non exciisat, was in regard to the public, that ignorance cannot be 
 pleaded in excuse of crimes, but did not hold in civil cases." See 
 Levy V. Bank U. S. 1 Binn. 27, 37. ace. ut semb. But a contrary doc- 
 trine was held by Chancellor KENT in Lyon v. Richmond, 2 Johns. 
 Ch. Rep. 51, 60. " The courts" he says, " do not undertake to relieve 
 parties from their acts and deeds fairly done on a full knowledge of 
 facts, though under a mistake of the law. Every man is to be charged 
 at his peril, with a knowledge of the law. There is no other principle 
 which is safe and practicable in the common intercourse of mankind." 
 See also, Shoiioell v. JSIurratj, 1 Johns. Ch. Rep. 616. Storrs v. 
 Barker, 6 Jchns. Ch. Rep. 166. 
 
 In Haven r. Foster, 9 Pick 112, where the plaintifl' as administrator 
 on an estate paid over to the defendant by mistake of the laws of de- 
 scent of New York the money sought to be recovered back in this ac- 
 tion ; held, that he was entitled to recover. The lex loci rei sitae must 
 govern the descent of real estate. The parties knew that the intestate 
 died spized of lands in New York. The distribution was governed by 
 
 (*255)
 
 310 OF THE CONSEQUENCES OF 
 
 Where a policy of assurance on a life was sold by 
 auction, and the particulars did not state that the seller - 
 had only a redeemable interest in the life assured, and 
 the interest was afterwards redeemed, it was held that 
 after the purchase w^as completed the purchaser could 
 not recover damages for the fraud, as it was proved that 
 the practice of the office was to pay such policies, although 
 of course there was no legal right to recover under the 
 policy(e). 
 
 If a lease be granted with power to the lessee to cut 
 and sell the timber, and the lessee is required when and so 
 often as he intends to sell the timber, or any part thereof, 
 to give notice to the lessor to whom the pre-emption was 
 given ; the lessee having a bona fide mten\\on to cut down 
 all the timber, may give a general notice to the lessor, 
 and if the lessor decline to purchase the timber, the lessee 
 may cut it down at intervals, and need not repeat the 
 notice(y^. 
 
 A bona fide purchase of an interest will not be con- 
 verted into a loan, on account of a power to re-purchase 
 being given to the seller, although at an advanced price ; 
 
 (c) Barber t). Morris, 2 Mood. & Malk. 62. 
 
 (/) Goodtitle v. Saville, 16 East, 87. See Doe v. Abel, 2 Mau. & 
 Selw. 541. 
 
 the laws of that state. The statute of New York is a fact, the ignorance 
 of which may be ground of repetition. The defendant received a part 
 of the [consideration of these lands by mistake in a matter of fact — 
 the law of New York. The estate in New York was under mortgage ; 
 and the mortgage was satisfied from the estate itself. The heirs agreed 
 to pay off the mortgage ; and the plaintiff supposing he owned but a 
 quarter, when he owned half made the agreement in respect to the dis- 
 tribution of the proceeds of these lands. The agreement was founded 
 in mistake, but it has been executed, as the parties cannot be restored 
 to the situation they were in when it was made, and as the effect of an- 
 nulling to one would work injustice to another, we can see no good rea- 
 son why both should not be bound by it.
 
 THE CONTRACT. 
 
 311 
 
 but, if the purchaser, instead of taking the risk of the 
 subject of the contract (e. g. an annuity) on himself, 
 take a security for repayment of the principal, that will 
 vitiate the transaction, and render it a mere mortgage 
 security(g)(163). 
 
 (*)If a power to re-purchase be given upon a condition, 
 for example, that rent be in the mean time regularly paid, 
 the right cannot be enforced unless the condition has 
 been complied with, for it is not a stipulation for penalty 
 or forfeiture but a privilege conferred (^)(1 64). 
 
 is) Werner v. Winstanley, 2 Scho. & Lef. 393. See Sevier v. 
 Greenway, 19 Ves. jun. 413. 
 
 (/t) Davis V. Thomas, 1 Russ. & Myl. 606. 
 
 (163) See Jackson v. Green, 4 Johns. Rep. 187. Ershine v. 
 Totcnsend,2 Mass. Rep. 493. 
 
 (164) The principle of this decision was recognized in the late case of 
 Robinson v. Cropsey and others, 2 Edward's V. Ch. R. 138, where the 
 question was as to the effect of an agreement. It appeared that one 
 Sharp and the complainant had joined in building a house upon two 
 lots of land. Sharp and wife executed a conveyance of one undivided 
 moiety of said lots ; and also of a moiety of two other lots. A con- 
 sideration was expressed, but not then paid. Subsequently, however, 
 the parties agreed under their hands and seals thus : Sharp was to con- 
 vey to the complainant the whole of said lots with four other lots, free 
 of incumbrance, except a mortgage, which the latter was to pay : — in 
 consideration whereof the complainant was to cancel an account cur- 
 rent ; and also certain mortgages he held. Sharp agreed also to lease 
 certain lots for 19 years at a stipulated rent. The agreement also gave 
 to Sharp " the privilege of redeeming said house and lands within one 
 year for a sum therein mentioned. In pursuance of this agreement, 
 Sharp executed a deed conveying the other four lots ; and the com- 
 plainant had been in possession since that time. The question for the 
 couit was whether this was a conditional sale or a mere mortgage 
 transaction. The V. Chan, decreed that the defendants, as the repre- 
 sentatives of Sharp, had no right to redeem or re-purchase under the 
 the agreement. The grounds of this decision were that the relation 
 of debtor and creditor did not remain by the agreement ; but the debt 
 forming the consideration of the conveyance was extinguished by the 
 agreement ; and the grantor retained the privilege of refunding the 
 money if he should choose to do it. The enquiry, says Chief J. Mar- 
 
 (*256)
 
 312 OF THE CONSEQUENCES OF 
 
 Where a power is given by an Act of Parliament to 
 purchase the estate of a third person for a public purpose, 
 with the usual provisions for ascertaining its value, if 
 the terms offered are not accepted ; the party empowered 
 to purchase, if he give a regular notice to purchase, can- 
 not withdraw from it, but will be compelled to take the 
 estate (2). 
 
 It may here be observed, that the grant of the office of 
 a steward of a manor for life is not revoked by a subse- 
 quent sale of the manor, but is binding on the purchaser ; 
 although, as lord, he will be entitled to the custody of 
 the court-rolls. In purchasing a manor, therefore, the 
 instrument by which the steward was appointed should 
 be called for. This is a precaution which has never been 
 attended to.(165). 
 
 (t) The King v. Hungerford Market Company, 1 Nev. & Mann. 
 112. 
 
 shall in Conway's executors v. Alexander, 7 Cranch, 218. must be, 
 whether the contract, in the specific case, is a security for the repay- 
 ment of money or an actual sale. If a mortgage is intended, the 
 mortgagee must have a remedy against the person of the debtor : if this 
 remedy really exists, its not being reserved in terms will not affect the 
 case ; but the remedy must exist, in order to justify a construction 
 which overrules the express words of the instrument." When the 
 mortgages, &c. were cancelled, they were extinguished ; and by the 
 agreement went to pay the consideration money. 
 
 (165) Parsons Ch. J. " If a grantor deliver any writing as his deed 
 to a third person, to be delivered over by him to the grantee on some 
 future event, it is the grantor's deed presently, and the third person is 
 a trustee of it for the grantee. And if the grantee obtain the writing 
 from the trustee before the event happen, it is the deed of the grantor, 
 and he cannot avoid it by the plea of no7i est factum, whether generally 
 or specially pleaded. But if the grantor make a writing and seal it, and 
 deliver it to a third person, as his writing or escrow, to be by him deliv- 
 ered to the grantee, upon some future event, as his the grantor's deed ; 
 and it be delivered to the grantee accordingly, it is not the grantor's deed 
 until the second delivery. And if the grantee obtain the possession of 
 it before the event happen, yet it is not the grantor's deed, and he may 
 avoid it by pleading non est factum.
 
 THE CONTRACT. 
 
 313 
 
 But if the deeds are delivered to a person, not as the deeds, but as 
 the writings of the grantor, we must not thence conclude they are void. 
 Although generally an escrow takes its effect from the second delivery, 
 yet there are excepted cases, in which it takes effect, and is considered 
 the deed of the maker, from the first delivery. The exception is found- 
 ed on necessity, ut res valeat. If a/eme sole seal a writing, and deliver 
 it as an escrow, to be delivered over on condition, and she afterwards 
 marry, and the writing be then delivered over on performance of the 
 condition, it shall be her deed from the first delivery ; otherwise her 
 marriage would defeat it. A. delivers a deed, as an escrow, to J. S. to 
 deliver on condition performed, before which it becomes non compos 
 mentis : the condition is then performed, and the deed delivered over ; 
 it is good, for- it shall be A's. deed from the first delivery. Brook's 
 Reading on the st. of limitations, p. 150. Another exception is in 3 
 Co. 35 b. 36 a. Lessor makes a lease by deed, and delivers it as an 
 escrow, to be delivered over on condition performed, before which les- 
 sor dies, and after it is delivered over on condition performed : the lease 
 shall be the deed of the lessor from the first delivery. There is also a 
 strong exception in 5 Co. 85. If a man deliver a bond as an escrow, 
 to be delivered on condition performed, before which the obligor or ob- 
 ligee dies, and the condition is after performed : here there could be no 
 second delivery, yet is it the deed of the obligor from the first delivery, 
 although it was only inchoate : but it shall be deemed consummate by 
 the performance of the condition. Therefore in Wheelwright v. Wheel- 
 wright, 2 Mass. 447, where the statute authorized any person of full age 
 seized in fee tail of any lands by deed duly executed before two subscrib- 
 ing witnesses, acknowledged and registered as therein provided, for a good 
 and valuable consideration bona fide to convey such lands or any part 
 thereof in fee simple to any person capable of taking and holding such 
 estate ; and such deed, so made, executed, acknowledged and register- 
 ed shall bar all estates-tail in such lands, and all remainders and rever- 
 sions expectant thereon. In this case the deeds were executed und de- 
 livered to one Wells, not as the deeds of the grantor, but as his writings 
 or escrows, to be delivered as his deeds by Wells to the grantee on his, 
 the grantor's death. The Court held, that the deeds must take their 
 effect, and be considered as the deeds of the grantor, from the first de- 
 livery, the grantor being dead at the second delivery. 
 
 What the nature of the delivery was, whether absolute or conditional, 
 and the intentions of the parties were, are questions o( fad for the jury, 
 to be determined by the evidence. Hatch tJ. Hatch, 9 Mass. 307. In 
 this case, (he father about four years before his death, signed, sealed and 
 
 VOL. I. 40
 
 314 
 
 OF THE CONSEQUENCES OF 
 
 acknowledged the writings which were produced at the trial as his deeds, 
 and which purported to be witnessed as deeds delivered. The grantees, 
 who were the sons of the grantor were not privy to the execution ; but 
 the writings were deposited with one Turner, to be kept until the gran- 
 tor's death, and then to be delivered to the grantees ; held, that the sons 
 should hold the estate. "^ 
 
 In Clark v. Gifford, 10 Wend. R. 310, where there was no absolute 
 delivery of the deed ; the papers were deposited with a third person to be 
 delivered when both parties should direct : held, that one party obtaining 
 possession of a writing thus deposited, without the consent of the other, 
 cannot be permitted to enforce it. " Take these deeds and keep them ; 
 if I never call for them, deliver one to Pamela, and the other to Noble 
 after my death ; if I call for them, deliver them up to me." The Court 
 held that the reservation of a power to countermand the delivery over 
 made no difference ; for it was in the nature of a testamentary disposition 
 of real estate, and was revocable by ihe grantor during his life, without any 
 express reservation. The legal operation of such a deed is, that it be- 
 comes the deed of the grantor presently ; that the third person is the 
 trustee of the grantee ; but the title is consummate in the grantee by the 
 death of the grantor ; and the deed takes effect by relation from the first 
 deUvery. Belden & ai. v. Carter, 4 Day's R. 66. 
 
 Weston, J. 3 Greenl. R. 141. "A delivery of a deed may be by 
 acts, or by words ; or by both. It may be delivered by the party who 
 made it, or by any other person, by his appointment or authority, prece- 
 dent or assent subsequent. But if a man throws a writing on a table, 
 and a party takes it, this does not amount to a delivery, unless it be 
 found to have been put there, with intent to be delivered to the party. 
 And upon the same principle, if the maker of a deed avails himself of 
 the hand of the party for whom it is made, merely to put the deed in a 
 trunk, desk or other place of deposit, within the control of the maker, 
 and such purpose is indicated and made known at the time, there is no 
 legal delivery ; no act being done, or declaration made expressive of an 
 intention to deliver." 
 
 In Austin v. Hall, 13 Johns. 285, where the deed was duly executed 
 by the grantor, in his life time, and delivered to a third person, to be 
 delivered to the grantees (sons of the grantor) in case the grantor 
 should die before having made and executed his will. The Court con- 
 sidered it " questionable whether this deed is to be viewed as an 
 escrow ; the grantees had nothing to do, on their part, in order to 
 make the deed absolute, which is usually the case where a deed is 
 delivered as an escrow. The delivery here was, at all events, condi-
 
 THE CONTRACT. 
 
 315 
 
 tional, and to become absolute upon an event which has taken place ; 
 and, as in the case of an escrow, the deed will take effect from the first 
 delivery. 
 
 A deed delivered at the register's office, in the absence of the arantee, 
 has been held to be a good delivery to the grantee ; if he afterwards 
 assent and take the deed. And where the sheriff lodged the deed with 
 the clerk of the court for the use of the purchaser ; he having paid ihe 
 price ; these proceedings being regular, were held to constitute an 
 incumbrance. Chapel v. Bull, 17 Mass. 213. The man who executes 
 a mortgage to the vendor for the payment of the purchase-money, must 
 be presumed to have accepted the conveyance. 14 S. & R. 299. 
 
 In Ward v. Winslow, 4 Pick. 518, where the defendants, being insol- 
 vent made an assignment of their property, in trust to pay creditors. 
 The bill prayed for an execution of the trust ; but the defendants in 
 their answers, admitted the execution of the deeds ; they, however, also 
 said, that the indenture was returned to them to obtain the signatures of 
 the creditors ; for the intent was that it should take effect only when a 
 majority in interest of the creditors had signed it ; And having subse- 
 questly compounded with their creditors, the deed was annulled. One 
 part was found in the hands of the assignees ; another in the hands of 
 the creditors ; and was referred to in the adjustment which took place 
 between certain of the creditors and the debtors. The Court consider- 
 ed " Where a deed, with the regular evidence of its execution upon 
 the face of it, is found in the hands of the grantee, the presumption is 
 that it has been duly delivered. It could not have been delivered as an 
 escrow, because it was delivered to the parties ; an escrow can be de- 
 livered only to a third person. It could not have been delivered to 
 the parties conditionally, to take effect upon the happening of any future 
 contingency, because this would be inconsistent with the terms of the 
 instrument itself. To permit parties to a deed purporting to be absolute, 
 to show by parol evidence that it was conditional, and to avoid it for a 
 non-performance of the condition, would be not only a violation of the 
 fundamental rules of evidence, but productive of great injustice and 
 mischief."
 
 [ 316 ] 
 (*)CHAPTER V, 
 
 OF THE CONSIDERATION. 
 
 SECTION I. 
 Of unreasonable and inadequate Considerations. 
 
 I. It seems that a court of equity cannot refuse to 
 assist a vendor merely on account of the price being un- 
 reasonable(a) : and a specific performance will certainly 
 be enforced, if the price was reasonable at the time the 
 contract was made, how disproportionable soever it may 
 afterwards become(l 66). 
 
 If, however, a man be induced to give an unreasonable 
 price for an estate, by the fraud (&)( 167), or gross misrep- 
 resentation(c), of the vendor ; or by an industrious con- 
 
 (a) City of London v. Richmond, 2 Vern. 421 ; Hanger v. Eyles, 2 
 Eq. Ca. Ab. 689 ; Hicks t'. Philips, Prec. Cha. 575 ; 21 Vin. Abr. (E), 
 n. to pi. 1 ; Keen v. Stukeley, Gilb. Eq. Rep. 155 ; 2 Bro. P. C. 396 ; 
 Charles v. Andrews, 9 Mod. 151 ; Lewis v. Lord Leechmere, 10 Mod. 
 503 ; Saville v. Saville, 1 P. Wms. 745 ; Adams v. Weare, 1 Bro. C. 
 C. 567 ; and the cases, as to inadequacy of price, cited infra. 
 
 {h) See James v. Morgan, 1 Lev. Ill, a case at law. Conway i'. 
 Shrimpton, 5 Bro. P. C. last edit. 187. 
 
 (c) Buxton V. Cooper, 3 Atk. 383. 
 
 (166) See Osgood v. Franklin, 2 Johns. Ch. Rep. 1, 23. The same 
 case was affirmed on appeal. 14 Johns. Rep. 627. 
 
 (167) Fraud will vitiate any contract : No rule of law is more uni- 
 versal than this. See Wilson v. Force, 6 Johns. Rep. 110. 
 
 {*257)
 
 OF THE CONSIDERATION. gj-y 
 
 cealmeiit of a defect in the estate(f^), equity will not com- 
 pel him to perform the contract. 
 
 And where these circumstances do not appear, but the 
 estate is a grossly inadequate consideration for the pur- 
 chase-money, equity will not relieve either party. Thus 
 (*)in a case at the Rolls before Lord Alvanley, by original 
 and cross-bill, the estate was represented on the one hand 
 of the value of 9 or 10,000/. ; and on the other of only 
 5,000/. The contract was for 6,000/., and 14,000/. at 
 the death of a person aged sixty-five. Lord Alvanley 
 said, it was not a case of actual fraud ; but it was insisted 
 the bargain was grossly inadequate ; and the inadequacy 
 was very great : it was impossible upon the whole evi- 
 dence to make the estate to be worth more than 10,000/. ; 
 though he ought not to decree a performance, yet as no 
 advantage was taken of necessity, &c. he was not war- 
 ranted to decree the vendor to deliver up the contract, 
 the only inconvenience of which would be, that an action 
 would lie for damages ; and he accordingly dismissed 
 both bills(e). 
 
 Indeed few contracts can be enforced in equity where 
 the price is unreasonable, because contracts are not often 
 strictly observed by either party ; and if an unreasonable 
 'contract be not performed by the vendor, according to the 
 letter in every respect, equity will not compel a perform- 
 ance in specie(f)(l68). 
 
 But there are few cases in which a purchaser could be 
 relieved after the conveyance is executed and the purchase 
 completed, on account of the unreasonable price(^). 
 
 {d) Shirley v. Stratton, 1 Bro. C. C. 440. 
 
 (e) Day v. Newman, 2 Cox, 77; 10 Ves jun. 300, cited ; and see 
 Squire v. Baker, 5 Vin. Abr. 549, pi. 12. 
 
 (/) See the cases cited in n. (a), ante ; and Edwards v. Heather, Sel. 
 Cha. Ca. 3. 
 
 (g-) Small V. Attwood, 1 Yo. Rep. 407. 
 
 (168) See Rtiggc v. Ellis, 1 Des. 160. 
 
 (*268)
 
 318 OF THE CONSIDERATION. 
 
 In Small v. Attwood(/i), where the contract was re- 
 scmded ; after the decree setthig it aside and directing 
 the accounts to be taken, the purchasers filed a supple- 
 mental bill, stating the payment of 200,000/., part of the 
 purchase-money (which was paid long before the bill was 
 filed), and tracing the investment of it in stock, and the 
 (*)transferof the stock to a third person without considera- 
 tion as it was alleged, and praying that they, without 
 prejudice to their lien on the estate of which they were 
 in possession, might be decreed to be entitled to the 
 specific stock. And Lord Lyndhurst, C. B., so decided, 
 although the money was paid in consideration of the pos- 
 session of the estate being given to the purchasers, with 
 which they had acted as owners. They had long had pos- 
 session, which they retained, of the estate, and a lien upon 
 it for what they had paid ; and they thus also obtained 
 the property which had been bought with the portion of 
 the purchase-money paid. This is the^r.s'^ case in which 
 equity ever followed the purchase-money, and ordered it 
 specifically to be restored. The author refrains from 
 further observing upon this decision, as it is now upon 
 appeal in the House of Lords. 
 
 I 
 
 n. It appears to be settled, that mere inadequacy of 
 price is not a sufficient ground for a court of equity to 
 refuse its assistance to a purchaser^, particularly where 
 the estate is sold by auction(A;)(169). 
 
 (/i) Rep. p. 101. 
 
 (?■) Coles V. Trecothick, 9 Ves. jun. 234 ; Burrows v. Lock, 10 Ves. 
 jun. 470. See Young v. Clark, Free. Cha. 538 ; Barrett v. Gonieserra, 
 Bunb. 94; Underwood v. Hithcox, 1 Ves. 279; Mortlockt). Buller, 10 
 Ves. jun. 292 ; and Lowther v. Lowther, 13 Ves. jun. 95 ; Western v. 
 Russell, 3 Ves. & Bea. 187. 
 
 (k) White V. Damon, 7 Ves. jun. 30. See Collet v. Woollaston, 3 
 Bro. C. C. 228. 
 
 (169) See Butler v. Haskell, 4 Des. 651, 678. Wherein the question 
 
 (*259)
 
 OF THE CONSIDERATION. 
 
 319 
 
 In White v. Damon, however, although the estate was 
 sold by auction, Lord Rossljn dismissed the bill merely on 
 account of the inadequate price given for the estate, viz. 
 1,120/. and it was worth 2,000/.; but on a rehearing 
 before Lord Eldon, although the decree was affirmed 
 upon a different ground, yet his Lordship said, he was 
 (*)inclined to say that a sale by auction, no fraud, surprise, 
 &c. cannot be set aside for mere inadequacy of value. It 
 would be very difficult, he said, to sustain sales by auc- 
 tion, if the Court would not specifically perform the 
 agreement. And in a subsequent case(/), his Lordship 
 expressed the same opinion, and referred to the case of 
 White V. Damon. 
 
 But if an uncertain consideration (as a life-annuity) be 
 given for an estate, and the contract be executory, equity 
 it seems will enter into the adequacy of the considera- 
 tion(/?i). 
 
 Although a purchaser is not bound to acquaint the 
 vendor with any latent advantage in the estate(w), yet 
 a concealment, for the purpose of obtaining an estate at 
 a grossly inadequate price, may be deemed fraudu- 
 lent(170). 
 
 (/) Ex parte Latham, 7 Ves. jun. 35, note. 
 
 (to) Pope V. Root, 7 Bro. P. C. 184 ; Mortimer v. Capper, 1 Bra. 
 C. C. 156 ; and Jackson v. Lever, 3 Bro. C. C. 605. 
 (n) See 2 Bro. C. C. 423. 
 
 as to inadequacy of price is very fully discussed ; and where the English 
 decisions are reviewed. Inadequacy of price not a sufficient ground 
 for setting aside a sale ; unless it be so gross as of itself to amount to 
 evidence of fraud. Osgood \. Frankltn, 2 Johns. Ch. Rep. 1,23. An 
 agreement for the sale of a present interest in a valuable estate, which 
 is executed, will not be set aside on the ground of mere inadequacy of 
 price ; there being no fraud, concealment, or misrepresentation. Gre- 
 gor V. Duncan, 2 Des. 636. Livingston v. Byrne, on appeal, 11 
 Johns. Rep. 655. 
 
 (170) Equity wA relieve against a contract of sale of lands, where 
 the purchaser had discovered salt water on the premises, and in- 
 
 (*260)
 
 320 ^^ 'THE CONSIDERATION. 
 
 Thus in the case of Deane v. Rastron(o), an agreement 
 was made for sale of land at a halfpenny per square yard. 
 The price was in all about 500/., the real value 2,000/. 
 The purchaser went out to an attorney, got him to calcu- 
 late the amount, and desired him not to tell- the vendor 
 how little it was ; then carried the agreement to the ven- 
 dor, and prevailed on him to sign it immediately. The 
 Court of Exchequer said, the desire of concealment would 
 be such a fraud as to void the transaction, as parties to a 
 contract are supposed, in equity, to treat for what they 
 think a fair price. 
 
 So a misrepresentation by the purchaser, who was the 
 agent of the seller, of the value of the estate, although it 
 operated only to a small extent, has been held to be a 
 (*)sufficient defence against a bill for a specific perform- 
 ance ; for to entitle a person to call for the aid of a court 
 of equity, he must go there with clean handsfp)(171). 
 
 Where neither of the parties knows the value of the 
 estate, at the time the contract is entered into, no inade- 
 quacy of consideration will operate as a bar to the aid of 
 equity in favor of the purchaser. 
 
 Thus, in a caise(q) where a common was to be inclosed, 
 one man having a right of common, agreed, before the 
 commissioners had made any allotment, or any one could 
 know what it was to be, to sell his allotment for 20/. Af- 
 
 (o) 1 Anstr. 64 ; and see Young v. Clerk, Prec. Cha. 538 ; Lukey 
 V. O'Donnell, 2 Sch. & Lef. 466. 
 
 (p) Cadman v. Horner, 18 Ves. jun. 10 ; Wall v. Stubbs, 1 Madd. 
 80. 
 
 (q) Anon. 1 Bro. C. C. 158 ; 6 Ves. jun. 24, cited ; but see 2 Atk. 
 1.34. 
 
 dustriously and artfully concealed the fact from the vendor. Bowman 
 V. Bates, 2 Bibb, 52. See Eichelberger's Les. v. Baruitz, 1 Yeates, 
 312. 
 
 (171) See Parker v. Carter, 4 Munf. 288. Moseley's Exr. v. Buck, 
 3 Munf. 233. 
 
 (*261)
 
 OF THE CONSIDERATION. 
 
 321 
 
 terwavds it turned out to be worth 200/. Sir Joseph Jekyll 
 said, the contract ought to be enforced, as no one could 
 know what the allotment would be ; and both parties were 
 equally in the dark ; but it might be different if the cir- 
 cumstances had been known to the plaintiff. 
 
 But, whether an estate is sold by auction, or by private 
 agreement, equity will be as vigilant in discovering an 
 excuse for refusing to perform the contract, where the 
 price is inadequate, as it will where the consideration is 
 unreasonable (r). 
 
 III. A conveyance executed will not, however, be easily 
 set aside on account of the inadequacy of the considera- 
 tion ; for there is a great difference between establishing 
 and rescinding an agreement(5)(172). It is not sufficient 
 to (*)set aside an agreement in equity, to suggest weak- 
 ness and indiscretion in one of the parties who has en- 
 gaged in it ; for supposing it to be in fact a very hard and 
 unconscionable bargain, if a person will enter into it with 
 his eyes open, equity will not relieve him upon this footing 
 only, unless he can show fraud in the party contracting 
 with him, or some undue means made use of to draw him 
 
 (r) Whorwood v. Simpson, 2 Yern. 186 ; Emery v. Wase, 5 Ves. 
 jun. 846 ; 8 Ves. jiin. 505 ; Twining v. Morris, 2 Bro. C. C. 326 ; 
 and see the cases cited in n. (a), supra ; and see Mortlock v. Buller, 
 10 Ves. jun. 292 ; Maddeford v. Austwick, 1 Sim. 89. 
 
 (s) See Dews v. Brandt, Sel. Cha. Ca. 7 ; Cases, Dom. proc. 1728 ; 
 Hamilton v. Clements, Cas. Dom. Proc. 1766. See Small v. Aitwood, 
 1 You. 407. 
 
 (172) See Osgood v. Franklin, 2 Johns. Ch. Rep. 23. In this case, 
 KENT Chancellor, said, " Though inadequacy of price is not a ground 
 for decreeing an agreement to be delivered up, or a sale rescinded, (un- 
 less its grossness amount to fraud) yet it maybe sufficient, for the court 
 to refuse to enforce performance. It is not an uncommon case for the 
 court to refuse to enforce, for inadequacy, and at the same time refuse 
 to rescind." See Clitherall v. Ogilvie, 1 De??. 250, 260. and note, 
 p. 258, 259, 260. See also, Gregor v. Duncan, 2 Des. 636. 
 
 VOL. I. 41 (*262)
 
 322 0^ "^HE CONSroERATION. 
 
 into such an agreement(^). To set aside a conveyance, 
 there must be an inequality so strong, gross and manifest, 
 that it must be impossible to state it to a man of common 
 sense, without producing an exclamation at the inequality 
 of it(w)» The truth is, that in setting aside contracts, on 
 account of an inadequate consideration, the Court proceeds 
 on fraud. In all such cases, however, the basis must be 
 gross inequality in the contract, otherwise the party sell- 
 ing cannot be said to be in the power of the party buying ; 
 unless actual imposition is proved by gross inequality, 
 other circumstances of fraud will pass for nothing ; the 
 basis must be gross inequality (.x')(l 73). 
 
 But a conveyance obtained for an inadequate considera- 
 tion, from one not conusant of his right, by a person 
 who had notice of such right, will be set aside, although 
 no actual fraud or imposition is proved (?/)( 174). 
 
 So if advantage is taken of the distress of the vendor, 
 
 (t) Per Lord Hardwicke, Willis r. Jernegan, 2 Atk. 251. 
 
 (m) Per Lord Thurlow in Gwynne v. Heaton, 1 Bro. C. C. 1 ; and 
 see Stephens v. Bateman, 1 Bro. C C. 22 ; Floyer v. Sherard, Ambl. 
 18 ; Heathcote v. Paignon, 2 Bro. C. C. 167, and the cases there cit- 
 ed ; Spratley v. Griffiths, 2 Bro. C. C. 179, n. ; Low v. Barchard» 8 
 Ves- jun. 133 ; Underhill v. Horvvood, 10 Yes. jun. 209 ; 14 Yes. jun. 
 28 ; Verner v. "Winstanley, 2 Scho. & Lef. 393 ; Mac Ghee v. Morgan, 
 Bruce v. Rogers, ib. 395 ; Darley v. Singleton, 1 Wight. 25 ; Evans 
 v> Brown, ib. 102 ; Ex parte Thistlewood, 1 Rose,. 290 ; Stilwell v. 
 Wilkins, 1 Jac. 280. 
 
 (ar) Per Lord Thurlow in Gartside r. Tsherwood, 1 Bro. C. C. 558. 
 
 (j/) See Evans r. Luellyn, 2 Bro. C. C. 150 ; and the cases cited in 
 the next note. 
 
 («) Heme v. Meers, 1 Vern. 465; 1 Bro. C. C. 176, n. ; Gould v. 
 Okenden, 4 Bro. P. C. by Toml. 193 ; Farguson v. Maitland, Gro. 
 
 (173) See Gregory. Duncan, 2 Des. 636, 639. Cliiherall v. Ogil- 
 t)tc, 1 Des. 259 ; and note, p. 258. Osgood v. Franklin, 2 Johns. Ch. 
 Rep. 23. Btdler v. Haskell, 4 Des. 687, 697. See also, Howell v. 
 Baker, ^ Johns. Ch. Rep. 118. Osgood v. Franklin, 2 Johns. Ch. 
 Rep. 24. Per KENT. 
 
 (174) See Buller v. Haskell, 4 Des. 651, 697.
 
 OF THE CONSIDERATION. 323 
 
 (*)the sale will be set aside(2) : and this was done in one 
 case, although the purchaser was really run to great ha- 
 zard, and was to be at great expense and trouble in many 
 foreseen and unavoidable law-suits about the estate, the 
 issue of which was very doubtful(a)(175). 
 
 The reader will perceive that in this chapter a distinc- 
 tion is taken between contracts in fieri, and contracts ac- 
 tually executed ; but in the case of Coles v. Trecothick(6), 
 Lord Eldon appears to have been of opinion, that no 
 such distinction exists. His Lordship said, that unless the 
 inadequacy of price is such as shocks the conscience, and 
 amounts in itself to conclusive and decisive evidence of 
 fraud in the transaction, it is not a sufficient ground for 
 refusing a specific performance (11 6). 
 
 IV. In treating of inadequacy of price, we must be 
 careful to distinguish the cases of reversionary interests, 
 the rules respecting which, especially where an heir is the 
 vendor, depend upon principles applicable only to them- 
 selves, and not easily definable(c). The heir of a family 
 dealing for an expectancy in that family, shall be dis- 
 tinguished from ordinary cases, and an unconscionable 
 bargain made with him, shall not only be looked upon 
 as oppressive in the particular instance, and therefore 
 
 and Rud. of Law and Eq. p. 89, pi. 1 ; Pickett v. Loggon, 14 Yes. 
 215 ; Murray v. Palmer, 2 Scho. & Lef. 474. 
 
 (a) Gordon v. Crawford, before the House of Lords ; Gro. and 
 Rud. of Law and Eq. p. 92, pi. 16 ; Printed Cases Dom. Proc. 1730. 
 
 {b) 9 Ves. jun. 234 ; scd. qu. and see the cases cited in this chapter. 
 
 (c) See -9 Ves. jun, 243 ; 2 Pow. Contr. 181 ; 3 Wooddes. 460, a. 
 7; Gilb. Lex Praitor. 291 ; 1 Trea. Eq. c. 11, s. 12, and Mr. Fon- 
 blanque's notes, ibid. 
 
 (175) See Osgood v. Franklin, 2 Johns. Ch. Rep. 24. Per KENT. 
 BuUer V. Haskell, 4 Des. 651. Bunch v. Hurst, 3 Des. 273. 
 
 (176) In Osgood v. Franklin, 2 Johns. Ch. Rep. 23. Kent, 
 
 Chancellor, says, " There is a very important distinction, which runs 
 
 through the cases, between ordering a contract to be rescinded, mid do- 
 
 creeiiig a specific performance.'' 
 
 (*26»)
 
 324 
 
 OF THE COMSIDERATION. 
 
 avoided, but as pernicious in principle, and therefore 
 (*)repressed(f/). There are two powerful reasons why 
 sales of reversions by heirs should be discountenanced ; the 
 one, that it opens a door to taking an undue advantage of 
 an heirbeing in distressed and necessitous circumstances(e), 
 which may perhaps be deemed a private reason : the other 
 is founded on public policy, in order to prevent an heir 
 from shaking off his father's authority, and feeding his ex- 
 travagances by disposing of the family estRte(fJ. Every 
 case of this nature must, however, depend on its own cir- 
 cumstances ; the Courts profess not to lay down any partic- 
 ular rules, lest devices should be framed toevade them(177). 
 
 (d) Per Lord Thuilow, 1 Bro. C. C. 10. See Nott v. Hill, 1 Vern. 
 167 ; 2 Vein. 27 ; Barney i\ Pitt, 2 Verti. 14 ; Earl of Ardglasse v. 
 Muschamp, 1 Vern. 237 ; Twisleton v. Griffith, 1 P. Wms. 310 ; Cur- 
 wyn V. Milner, 3 P. Wms. 293, r>. (C) ; Sir John Barnardiston v. Lin- 
 good, 2 Atk. 133 ; Baiigh v. Price, 1 Wils. 320 ; Gwynne v. Heaton, 
 1 Bro. C. C. 1 ; Bernal v. Donegal, 3 Dow, 133 ; Blakeney v. Bagott, 
 3 Bligh, N. S. 237. 
 
 (e) Sir John Barnardiston v. liingood, 2 Atk. 133. 
 
 (/) Cole V. Gibbons, 3 P. Wms. 290. See Barnard. Cha. Rep. 6. 
 
 (177) See Osgood v. Franklin, 2 Johns. Ch. Rep. 25. Butler v. 
 Haskell, 4 Des. C51, 687. 
 
 In Butler v. Haskell, 4 Des. 687, 688., DESAUSSURE, Chancel- 
 lor, says, " there is a distinction made between the cases of young heirs 
 selling expectances, and of others, which I am not disposed to support. 
 It is said, that the former are watched with more jealousy, and more 
 easily set aside than others, on principles of public policy. This was 
 certainly true at first ; but the eminent men, who have sat in chancery, 
 have gradually applied the great principles of equity, on which relief is 
 granted, to every case where the dexterity of intelligent men had ob- 
 tained bargains at an enormous and unconscientous disproportion, from 
 the ignorance, the weakness, or the necessities of others, whether young 
 heirs or not." See Boynton v. Hubbard, 7 Mass. Rep. 112. 
 
 In Fitch I'. Fitch, 8 Pick. 480, it was decided that a covenant enter- 
 ed into by an heir expectant, upon a valid consideration and with the 
 consent of the father, to convey the estate which should come to him, 
 was valid. " The Knowledge of the father, and his consent to the 
 transaction is essential to its validity. Though no title passed by the 
 
 (*264)
 
 OF THE CONSIDERATION. 325 
 
 The circumstance of the heir being unprovided for, will 
 not prevail much in the purchaser's favor : the remoteness 
 or uncertainty of the interest is not material, if the terms 
 be unreasonable, nor can much stress be laid upon the 
 purchaser incurring the risk of the loss of his money, in 
 case the heir die before he come into possession ; nor will 
 the acquiescence of the seller during the continuance of 
 the same situation in which he entered into the contract 
 prejudice him(^). 
 
 The adequacy of the consideration is considered with 
 reference to the time of the contract and not to the event, 
 and the burden lies on the purchaser in these cases 
 to show that a full and adequate consideration was 
 paid(/i)(178). 
 
 (*)A very anxious protection is also extended by equity 
 to persons selling reversionary interests, who are not 
 heirs, although certainly the same reasons do not occur 
 in support of it(z). 
 
 And although the bargain include property in pos- 
 session, yet if the bulk of the property is reversionary, the 
 whole contract will be set aside(A:J(179). 
 
 (g-) Gowland v. De Faria, 17 Ves. jun. 20. 
 
 (Ji) Gowland v. De Faria, uhi sup ; Evans v. Griffith, Farmer v. 
 Warden, 17 Yes. jun. 24. cited ; Medlicott r. O'Donel, 1 Ball & 
 Beatty, 136 ; Kendall v. Beckett, 2 Russ. & MyL 88. 
 
 {i) Wiseman v. Beake, 2 Vern. 121 ; Cole v. Gibbons, 3 P. Wms. 
 290. 
 
 (fc) Lord Portmore v. Taylor, 4 Sim. 182. 
 
 deed made in the life-time of the father, yet the covenant to make fur- 
 ther assurances may be valid, if made on good consideration, without 
 undue advantage or oppression taken of the heir, and with the know- 
 ledge and consent of the father." 
 
 (178) See BvUerv. Haskell, 4 Des. 698. 
 
 In judging of inadequacy of price, reference is to be had to the time 
 of the sale ; " accidental subsequent advantage made of a bargain, is 
 nothing." Osgood v. Franklm, 2 Johns. Ch. Rep. 26. 
 
 (179) A mortgage to secure against future liabilities, in the absence 
 
 (*265)
 
 326 ^^ ^^^ CONSIDERATION. 
 
 But a bona fide sale of a reversionary estate cannot be 
 set aside, whether the vendor be an heir or not(/), unless 
 fraud or imjDosition be expressly proved, or be implied 
 from the inadequacy of the consideration, or other cir- 
 cumstances attending the sale(»i), although in a late case 
 it was deemed sufficient to avoid the contract(w), that 
 the consideration was not equal to the calculated value in 
 the tables. If the bill be delayed for a great length of 
 time(o), or the vendor, with full notice of all the circum- 
 stances, and of his right to set aside the contract, confirm 
 the purchase(pj, equity will not relieve against the sale, 
 
 {I) Dews V. Brandt, Sel. Ca. Cha. 8 ; and see 1 Bro. C. C. 6. 
 
 (w) Nicols V. Gould, 2 Ves. 422 ; Gvvynne v. Heaton, 1 Bro. C. 
 C. 1 ; Peacock v. Evans, 16 Ves. jun. 512 ; Ryle v. Brown, 13 Price, 
 750 ; Lord Portmore v. Taylor, 4 Sim. 182. 
 
 {n) Gowland v. De Faria, 17 Ves. jun. 20. The decision was ap- 
 pealed from, but the suit was compromised by Gowland (the seller) pay- 
 ing the costs and a sum of money to De Faria (the purchaser), beyond 
 the sum decreed to him at the Rolls. 
 
 (o) Moth V. Atwood, 5 Ves. jun. 845 ; but see Roche v. O'Brien, 1 
 Ball & Beatty, 330. 
 
 {p) Cole V. Gibbons, 3 P. Wms. 290 ; Chesterfield v. Janssen, 1 
 Atk. 301 ; 2 Ves. 549. See Baugh v. Price, 1 Wils. 320 ; Morse v. 
 Royal, 12 Ves. jun. 365 ; Roche v. O'Brien, 1 Ball & Beatty, 330. 
 
 of fraud is valid. Thus in Hubbard v. Savage, 8 Conn. R. 215, where 
 the condition of a mortgage deed was " that whereas A. has endorsed 
 for B., a note for 1000 dollars and has agreed to indorse in note or 
 notes, hereafter, when requested — if B. shall well and truly pay said 
 notes according to their tenor, said deed is to be void." Afterwards C. 
 a creditor of B. took security for his debt on the property so mortgaged ; 
 but the first mortgage was held to be valid. Daggett, J. In the ab- 
 sence of all fraudulent intention, I am unable to see how a deed given 
 by a man indebted at the time, to secure against future liabilities can be 
 deemed void. It was held valid in Stoughton v. Pasco, 5 Conn. R. 
 442 ; Crane v. Deming, 7 ib. 387. And the doctrine has been recog- 
 nised in the U. S. C. not only as a security for debts to be contracted, 
 as well as for that already due. United States v. Hor, 3 Cranch, 73, 
 89 ; 7 Ib. 34, 50.
 
 OF THE CONSIDERATION. 
 
 327 
 
 although the aid of the Court could not originally have 
 been withheld. 
 
 Where a sale is set aside on account of the inadequacy 
 (*)of the consideration, it is upon the principle of redemp- 
 tion, and the conveyance will stand as a security for the 
 principal and interest, and even costs(^) ; but compound 
 interest will not be allowed, however long the purchaser 
 has been kept out of his money fr) ; in many cases, there- 
 fore, the seller is not merely relieved against the contract, 
 but a considerable benefit is given to him at the expense 
 of the purchaser. In a late case, where interest had been 
 paid on the purchase-money, the payments, were consider- 
 ed to be of principal and not interest, and the seller was 
 charged with interest on all the sums received by him, 
 whether received as interest or as principal(5). 
 
 So the purchaser will be allowed for lasting and va- 
 luable improvements, and will not, like a mortgagee be 
 charged with what without wilful default he might have 
 made(i). 
 
 The rules on this head have a strong tendency to stop 
 altogether the sale of reversions ; but as this is not pos- 
 sible, they must necessarily have the effect of preventing 
 the sale of reversions at their fair market value. It is per- 
 fectly well known that reversions upon sales even by 
 auction, fetch on an average only two-thirds of the sum 
 at which they are valued in the tables : according to the 
 
 (q) Twisleton r. Griffith, 1 P. Wms. 310 ; Gwynne r. Heaton, 1 
 Bro. C. C. 1 ; Peacock v. Evans, 16 Ves. jun. 612 ; Bowes v. Heaps, 
 3 Ves. & Bea. 117 ; but in Nicols v. Gould, 2 Ves. 423, Lord Hard- 
 wicke thought he could not set aside the purchaser without making the 
 purchaser pay costs ; and see Baugh v. Price, 1 Wils. 320 ; Gowland 
 V. De Faria, 17 Ves. jun. 20 ; Morony v. O'Dea, 1 Ball & Beatty, 109, 
 and the Reporter's note ; and Wood v. Abrey, 3 Madd. 417. 
 
 (r) Gowland v. De Faria, 17 Ves. jun. 20. 
 
 (») Murray v. Palmer, 2 Scho. & Lef. 474. 
 
 (0 S. C. 
 
 (*266)
 
 328 
 
 OF THE CONSIDERATION. 
 
 late case of Gowland v. De Faria(2f), this does not seem 
 (*)to operate in a purchaser's favor, although the value of 
 a thing is at last not to be regulated by calculation, bat as 
 it is vulgarly termed, by vi^hat it will fetch. Experience 
 has shown, that under the most favorable circumstances, 
 reversions will not fetch their calculated value, which only 
 allows the purchaser five per cent, interest, notwithstand- 
 ing that his money may be locked up for many years. It 
 seems therefore an equity not founded on reason or conve- 
 nience, which in these cases inquires the calculated value 
 of the subject of the contract instead of its value according 
 to the well known market price. The effect of such an 
 equity must ultimately be to injure the very persons in 
 whose favor it was introduced. Reversions will never 
 fetch their calculated value. Fair purchasers will not dare 
 to purchase them at their market price, and consequently 
 they will be thrown into the grasp of usurers, who will 
 give very inadequate considerations for them, running the 
 risk of a suit, in which event they will stand in as good a 
 situation as if they had given the fair market price for 
 them. 
 
 In a recent case(a:) Chief Baron Alexander refused to 
 set aside a private sale of a reversionary interest, although 
 Mr. Morgan the actuary's valuation was 928/. 85., and the 
 price paid was only 630/., rather more than two-thirds of 
 the calculated value. The learned Judge could not bring 
 himself to adopt the principle laid down in Gowland v. 
 De Faria. He observed, that in the case before him the 
 price agreed on and actually paid was in his opinion 
 the utmost that, according to every human probability, 
 could have been obtained. He did not dispute Mr. Mor- 
 
 (m) Supra, p. 265, and note. See Ex parte ThisHewood, 1 Rose, 
 290 ; Lord Portmore v. Taylor, 4 Sim. 182 ; Whichcole v. Bramston, 
 ib. 202, n. 
 
 {x) Headen v. Rosher, 1 M'Clel. & You. 89 ; but Hincksman v. 
 Smith, 3 Russ. 433 ; Hilliard r. Gambel, 1 Toml. 375, n. 
 
 (*267)
 
 OF THE CONSIDERATION. 
 
 329 
 
 gan's valuation, but the price put by the actuary can 
 never be procured in fact ; the witnesses for the defen- 
 dant (*) prove it, and it requires no witnesses. The price 
 set \^as the arithmetical value. Now no man will part 
 with his ready money, and all the advantages which the 
 power over it confers, in exchange for a future interest, 
 without some compensation beyond the dry arithmetical 
 value of it. To set this bargain aside would be in effect 
 to decree that no valid bargain for a reversion can be made 
 except by auction ; and he did not know how any other 
 sale of such an interest could be sustained, unless Judges 
 proceeded on the same principle as he did. This would be 
 a very inconvenient restraint on the power of the owners 
 of such property. A private sale is no doubt, sometimes, 
 an imprudent exercise of that power ; but in many situa- 
 tions, and under circumstances of no unfrequent occur- 
 rence, it is wise and provident. Every case should turn 
 on its particular circumstances ; and he thought there 
 were none in the present case which, either according to 
 sound sense, or to any established course of precedents, 
 affected it. 
 
 In the case of Potts v. Curtis(i/), the bill was to compel 
 a transfer of some stock, the reversion of which had been 
 purchased by private contract by the plaintiff. The pur- 
 chase was made in 1812 for 550/. The claim was resisted 
 upon the allegation of undue advantage, which was aban- 
 doned, and inadequacy of consideration. The plaintiff ex- 
 amined two auctioneers to prove the value. The defendant 
 examined two actuaries, an auctioneer, and a land agent ; 
 and in the result the purchaser was supported. This case, 
 for the first time, fairly introduced the question between the 
 conflicting evidence of auctioneers and actuaries, or, in 
 other words, between the market price of reversions, and 
 their estimated value according to the tables. Lord Lynd- 
 
 (y) 1 You. 543. 
 VOL. u 42 (*268)
 
 350 
 
 OF THE CONSIDERATION. 
 
 hurst observed, that he had made a calculation as to the 
 (*)iiiadequacy. If the two calculations of Morgan and An- 
 sell, the actuaries, and the average of their results be taken 
 on the one side, and the calculations of the two witnesses for 
 the plaintiff, and the average of their results be stated on 
 the other side, and then the average of the whole, two on 
 one side, and two on the other, be taken, the result is 
 597/., that is, 47/. more than the price actually paid. 
 There are valuations on the one side, making it 530/. and 
 500/., adding them together, the sum is 1,030/., which 
 divided by two, makes the average 515/., from which 
 one-eighth being taken, in consequence of a mistake, 
 reduces it to 450/. Then, on the other side, taking the 
 valuation of Morgan at 855/., and of Ansel I at 847/., 
 they make together 1,702/., which divided by two, 
 makes the average 851/., taking one-eighth from which, 
 reduces it to 744/. ; so that the average on one side, after 
 taking off the eighth, is 744/., and the average on the 
 other side, after deducting the eighth, is 450/. Now, 
 adding the 744/. to the 450/., they make together 1,194/., 
 and this being divided by two, makes 597/., as the aver- 
 age of the whole, which is just 47/. more than the price 
 actually paid. It was quite clear that Sir William Grant, 
 in Gowland v. De Faria, paused a moment as to an 
 actuary's valuation ; but then, he says, " there is nothing 
 opposed to it ; it is not questioned, but it is admitted." 
 He (Lord Lyndhurst) took that as the basis upon which 
 he should proceed. It was equally clear, he seemed to 
 think, a question might arise as to whether an actuary's 
 valuation was the real value. Sir William Alexander in 
 Headon v. Rosher, states that the sum at which an actuary 
 values a reversion never can be obtained. He (Lord 
 Lyndhurst) supposed it could not ; for why should a party 
 choose to lock up his money at the ordinary interest ? Some 
 deduction therefore should be made on that account ; but 
 in this case, making no deduction, and taking the valua- 
 
 (*269)
 
 OF THE CONSIDERATION. 301 
 
 tions (*)on both sides, the average is only 47/. more than 
 the money paid for the reversion. It was unnecessary for 
 him to say what was the extent of the inadequacy of con- 
 sideration which would vitiate a contract of this kind, for 
 it did not appear to him that the consideration was inade- 
 quate when the subject was fairly considered. Undoubt- 
 edly in this case, Mr. Morgan and Mr. Ansel 1, who were 
 both actuaries, and accustomed to make calculations of 
 this description with great accuracy, stated that they cal- 
 culated the value of this reversion at considerably more 
 than the sum that was agreed to be paid for it. This 
 brought him (Lord Lyndhurst) to the consideration of the 
 doctrine in Govvland v. De Faria. What is it the Master 
 of the Rolls there says ? He says, " The question is, 
 whether he has received an adequate consideration. Upon 
 that question, the evidence is all one way. In many of 
 these cases very opposite opinions are given by calcula- 
 tors ; but here Mr. Morgan's opinion is not contradicted ; 
 I must therefore take the value to be inadequate ; and 
 I do not see how I can avoid setting aside the contract." 
 In that case there was a calculated value ; that value 
 was stated by Mr. Morgan ; and the Master of the Rolls 
 not finding that calculated value opposed by any evidence, 
 considered he was bound by it ; and the calculated value 
 being much more than the sum paid, he considered the 
 contract was altogether void. But he (Lord Lyndhurst) 
 thought the observations made upon that case by Sir 
 William Alexander, very judicious and very proper. He 
 says, " Calculated value is never actual value, and no 
 person selling a reversionary interest can ever expect to 
 get the calculated value." And his reason is extremely 
 good and satisfactory. He says, " The price agreed on 
 and actually paid, was in my opinion the utmost that, 
 according to human probability, could have been obtained. 
 I do not dispute Mr. Morgan's valuation ; but the price 
 ('^)of an actuary cannot be obtained. The price set was 
 
 (^270) (*271)
 
 gg2 or THE C0.Nt«IDif.PvA1ICN. 
 
 an arithmetical value. Now no man will part with his 
 ready money, and all the advantages which the power over 
 it confers, in excliange for a future interest, without some 
 compensation beyond the dry arithmetical value of it." 
 Sir William Alexander, therefore, would have come to 
 the conclusion probably in Gowland v. De Faria, that 
 according to his experience, he would not have been 
 bound, as the Master of the Rolls conceived himself to 
 be, by the evidence of the calculated value. The Master 
 of the Rolls thought that the calculated value being 
 opposed by no other evidence, was conclusive upon him. 
 According to his (Lord Lyndhurst's) understanding of 
 the judgment of Sir William Alexander, he would not 
 have considered himself so bound ; he would have exer- 
 cised his own understanding and experience, and made 
 certain deductions from the calculated value ; but in the 
 present case they have evidence not merely of the calcu- 
 lated value, but evidence independent of it. Now the 
 evidence of the calculated value of the two most ex- 
 perienced witnesses on the part of the defendant, those 
 on whose judgment he should be disposed most to rely, 
 Mr. Morgan and Mr. Ansell, was, that the calculated 
 value amounted to 744/. When he said 744/., that is 
 the average of their valuation, after deducting one-eighth 
 in consequence of their calculation having originally 
 included 2,000/., which it turned out should have been 
 omitted. Their estimated value, therefore, is 744/. ; two 
 thirds of that sum is 496/. only. If you deduct, accord- 
 ing to common experience, a third from the calculated 
 value, the proportion to which as the average price 
 obtained(z), it w^ould reduce the 744/, to 496/., whereas 
 the sum here contracted for amounted to 550/. But what 
 .(*)was the evidence on the other side ? The evidence on 
 £he other side, of Mr. Fairbrother, was, that it was not 
 
 (z) Sug. Tend. & Puich. 239. 
 
 1*272) 
 
 •■
 
 OF THE CONSIDERATION. 
 
 333 
 
 worth to sell more than 530/. : the evidence of Mr. Ab- 
 bott, that it was not worth more than 500/. Taking 
 therefore the evidence of Mr. Fairbrother, and the evi- 
 dence of Mr. Abbott, who were both experienced persons 
 in selling property of this description, and contrasting that 
 with the calculated value, the estimate they put upon the 
 property was something more than two-thirds of the cal- 
 culated value, and something less than the money actual- 
 ly given for the property. There was another way of 
 considering it, which he had already presented to the par- 
 ties : he would take Mr. Morgan and Mr. Ansell on one 
 side, and take their average, and then Fairbrother and Ab- 
 bott on the other side, and take their average, and then 
 taking the average of the two sets of calculators, he found 
 the estimated value upon that average was only 597/., 
 which was only 47/. more than the sum actually contract- 
 ed to be paid. 
 
 In a late case(rt). Sir John Leach held that the rule 
 did not extend to sales by auction. His Honor said, that 
 the principle of the rule could not be applied to sales 
 of reversion by auction. There being no treaty between 
 vendor and purchaser, there can be no opportunity for 
 fraud or imposition on the part of the purchaser. The 
 sale by auction is evidence of the market price. It was 
 said, that pretended sales by auction may be used to cover 
 private bargains ; where such cases occur they will ope- 
 rate nothing. 
 
 So the same Judge held, that the rule did not apply to 
 a sale by a father, tenant for life, and his son tenant in 
 tail in remainder, for they form a vendor with a present 
 (*)interest, and meet a purchaser with the same advan- 
 tages as if a single person had the whole power over the 
 estate(6). 
 
 (o) Shelly v. Nash, 3 Madd. 232. See Fox v. Wright, 6 Madd. 
 111. 
 
 (6) Wood V. Abrey, 3 Madd. 417. 
 
 (*273)
 
 334 
 
 OF THE CONSIDERATION. 
 
 In Baker v. Bent(c), where the bill was filed to set 
 aside for undervalue a sale of a reversion expectant upon 
 the death of a tenant for life without issue male, and 
 subject to charges in other events, the Master of the 
 Rolls said, that the probability that a testator of sixty- 
 three will marry and have issue, depending upon the 
 habits and disposition of the party, and the accidents 
 of life, is not the subject of estimate or calculation, and 
 he put out of his consideration all evidence which af- 
 fected to set a value on that contingency. But as, in the 
 case before him, the purchaser at the beginning of the 
 treaty was not' aware that such a contingency existed, 
 and he put a value upon the plaintiff's interest, as if the 
 reversion were actually to take effect upon the death of 
 the tenant for life ; and when he afterwards discovered 
 the contingency he proposed to deduct one half of the 
 sum he had just offered, and that proposal was ultimately 
 the basis of the agreement ; the learned Judge referred 
 it to the Master to inquire, what was the value of the 
 reversion, supposing it had been to take effect certainly 
 at the death of the tenant for life, and by declaring that 
 one half of such value is to be deducted in respect of the 
 contingency. 
 
 It must not, however, be understood, that because 
 there is a contingency which is not strictly the subject 
 of valuation, a purchaser can sustain a purchase at an 
 undervalue. 
 
 It must be remarked, that we have no certain rule by 
 (*)which the inadequacy of a consideration can be ascer- 
 tained. Our law, indeed, hath in one instance((/) 
 adopted the rule of the civil law ; by which no considera- 
 tion for an estate was deemed inadequate which exceeded 
 
 » 
 
 (c) 1 Russ. & Myl. 224 ; see Sherwood v. Robins, 1 Mood. & 
 Malk. 194. 
 
 {d) Vide Duke, 177; el infra, ch. 16; and see Baldwins. Roch- 
 fort, 2 Ves. 517, cited. ff 
 
 (*274)
 
 OF THE CONSIDERATION. gog 
 
 half the real value of the estate ; and Lord Nottingham 
 wished the rule universally prevailed in England(e). 
 
 If it be agreed, that the price of an estate shall be fixed 
 by a third person, and such person accordingly name the 
 sum to be paid for the estate, equity will compel a per- 
 formance in specie ; but if the referee do not act fairly, 
 or a valuation be not carefully made, execution of the 
 contract will not be compelled ; especially if there be 
 any other ground upon which the Court can fasten, as 
 a bar to its aid(f). 
 
 By the civil law, also, a price was considered sufficiently 
 certain, if it was to be fixed by a person named, and such 
 person accordingly fixed the sum : but it appears by the 
 Institutes(§"), " Tnte?^ veteres satis abundeque hoc duhitatur^ 
 constaretne venditio, an non.^^ 
 
 Such arbitrators may take the opinion of a third per- 
 son as evidence, but they cannot merely delegate their 
 authority(/i). 
 
 If an agreement be made to sell at a fair valuation, the 
 Court will execute it although the value is not fixed. For 
 as no particular means of ascertaining the value are pointed 
 out, there is nothing to preclude the Court from adopting 
 any means adapted to that purpose(/). 
 
 (*)Bat where parties agree upon a specific mode of 
 valuation, as by two persons, one chosen by each, unless 
 the price is fixed in the way pointed out, the Court cannot 
 enforce the performance of the agreement, for that would 
 
 (e) SeeNottr. Hill, 2 Cha. Ca. 120; 1 Treat. Eq. 119; Grotius 
 de jure Belli ac Pads, L. 2, c. 12, s. 12. 
 
 (/) Emery v. Wase, 5 Ves. jun. 346 ; 8 Yes. jun. 605 ; Hall v, 
 Warren, 9 Ves. jun. 605. 
 
 (g) HI. xxiv. 1. For the cases arising out of this rule, vide Via- 
 nius, 674. 
 
 {h) Hopcraft v. Hickman, 2 Sim. & Stu. 130. 
 
 (t) See 14 Yes. jun. 407, 
 
 (*275)
 
 336 
 
 OF THE CONSIDERATION. 
 
 be not to execute their agreement, but to make a new one 
 for them. Therefore, where the agreement was to sell at 
 a valuation by arbitrators, to be appointed, or their um- 
 pire, and arbitrators were appointed, and differed as to 
 value, and could not agree upon an umpire, the Court 
 refused to interfere (/c). 
 
 In this respect our law accords with the civil law(/). 
 The same rule is adopted in the Code Napoleon(»i). 
 After stating that the price ought to be fixed by the par- 
 ties, it adds, " II pent cependant etre laisse a I'arbitrage 
 d'un tiers : si le tiers ne veut ou ne peut faire I'estimation, 
 il n'y a point de vente." 
 
 If therefore the medium of arbitration or umpirage is 
 resorted to for settling the terms of a contract, and fails, 
 equity has no jurisdiction to determine that though there 
 is no contract at law, there is a contract in equity : — If 
 the instrument assume that the award shall bind the par- 
 ties personally, the death of one of them before the award 
 will of course be a countermand of the submission at law, 
 and equity cannot enforce the contract(w). So if the 
 arbitrators are named, and one party refuses to execute 
 the arbitration bond, as it is not certain that any award 
 will ever be made, equity will not interfere ; for the relief 
 sought is a specific performance by the defendant convey- 
 ing (*)at such price as the arbitrators named shall hereaf- 
 ter fix, and no award may ever be made(o)(I). 
 
 This proves that neither of the parties to such an agree- 
 
 (k) Milnes v. Gery, 14 Yes. jun. 400 ; Gregory v. Mighell, 18 Ves. 
 jun. 328 ; Gourlay v. Duke of Somerset, 19 Ves. jun. 429. See Cooth 
 V. Jackson, 6 Ves. jun. 34 ; Pritchard v. Ovey, 1 Jac. & Walk. 396. 
 
 (/) Vide supra. 
 
 (m) Code Civil, Liv. 3, Tit. 6, ch. 1, s. 1592. 
 
 (n) Blundell v. Brettargh, 17 Ves. jun. 232 ; and see 6 Ves. jun. 34. 
 
 (0) Wilks V. Davis, 3 Mer. 507. 
 
 (1) For the new powers given to arbitrators appointed by rule of 
 Court, or the like, see 3 & 4 W. 4, c. 42, s. 39, 40, 41. 
 
 (*276)
 
 OF THE CONSIDERATION. aet'j 
 
 ment can be compelled to nominate an arbitrator imdeJ- 
 the agreement. The very point was decided in the late 
 case of Agar v. Macklevv(^). A covenant was contained 
 in a lease that the lessees might purchase the reversion at 
 a valuation by two persons, one to be named by the lessor, 
 and the other by the lessees, who were to name an umpire. 
 The lessor refused to name an arbitrator, and upon de- 
 murrer it was held that the lessees could not file a bill 
 for a specific performance, or to compel the lessor to 
 nominate an arbitrator. But a party may bind himself 
 by acquiescing in an award not made in the manner re- 
 quired(9). And in a case where the contract of sale was 
 for twenty-five years purchase, on an annual value to be 
 fixed by a certain day, by referees named, and the seller 
 prevented the valuation from being made, it was held 
 that he should not be allowed to avail himself of his own 
 wrong. The Court would compel him to permit the va- 
 luation to be made according to the contract(/). 
 
 (*)SECTION II. 
 
 Of the faihire of the Consideration before the Convey- 
 ance. 
 
 I. A Vendee, being equitable owner of the estate from 
 the time of the contract for sale, must pay the considera- 
 tion for it, although the estate itself be destroyed between 
 the agreement and the conveyance ; and on the other 
 
 (p) V. C. 9 Nov. 1S25, MS. ; 2 Sim. & Stu. 154, S. C. 
 
 (7) See 17 Ves. jun. 241. 
 
 (r) Morse r. Merest, 6 Madd. 26. 
 
 vor.. 1. 43 (*277)
 
 ooo OF THE CONSIDERATION. 
 
 hand, he will be entitled to any benefit which may ac- 
 crue to the estate in the interim(.s). 
 
 Nevertheless this doctrine, however it may seem to 
 flow from the rules mentioned in the preceding chapter, 
 has never been decided till lately. 
 
 For in Stent v. Baily(i), the Master of the Rolls said, 
 " If I should buy a house, and before such time as by 
 the articles I am to pay for the same the house be burnt 
 down by casualty of fire, I shall not in equity be bound for 
 the house(w)." 
 
 So upon a sale of a leasehold for lives(a;), previously 
 to the conveyance, one of the lives dropped ; and although 
 Lord Keeper Wright decreed a specific performance, yet 
 the report states, that he seemed to think, that if all the 
 lives had been dropped before the conveyance, it might 
 have been another consideration, for that the money was 
 to be paid for the conveyance, and no estate being left, 
 there could be no conveyance. 
 
 The case of Cass v. Rudele, as it is reported in Ver- 
 non(?/), is an authority against the dictum of the Master 
 (*)of the Rolls, in Stent v. Baily ; but it appears(2) that 
 the case is mis-stated in Vernon, and that the decree was 
 founded on a good title having been conveyed. 
 
 In a late case(«), however, where A. had contracted for 
 the purchase of some houses which were burned down 
 before the conveyance, the loss was holden to fall upon 
 
 (s) See 2 Pow. on Contracts, 61. 
 
 (0 2 P. Wms. 220. 
 
 (m) As to accidents before the contracts, unknown to the parties, see 
 p. 264. 
 
 (x) White V. Nutt, 1 P. Wms. 62. 
 
 (y) 2 Vern. 280. 
 
 («) See 1 Bro. C. C. 167, n. ; and the note to Raith. edit, of Vernon, 
 
 (a) Paine v. Meller, 6 Ves. jun. 349 ; and see Poole v. Shergoid, 2 
 Bro, C. C. 118 ; Revel v. Hiissey, 2 Ball. & Bentt. 280; Harford r. 
 Purrier, 1 Madd. 532. 
 
 (*278)
 
 OF THE CONSIDERATION. gon 
 
 him, although the houses were insured at the time of the 
 agreement for sale, and the vendor permitted the insurance 
 to expire without giving notice to the vendee ; Lord 
 Eldon being of opinion, that no solid objection could be 
 founded on the mere effect of the accident ; because, as 
 the party by the contract became in equity the owner of 
 the premises, they were his to all intents and purposes(I). 
 This decision proceeded on the only principle upon w hich 
 it can be supported — that the purchaser was in equity 
 owner of the estate. And therefore, in a case where a 
 similar accident happened to an estate sold before a 
 Master, and the report had only been confirmed nisi, the 
 loss was holden to fall on the vendor(6) : nor does the 
 rule extend to evidence of the title to the property(c). 
 
 (*)Lord Eldon's decision in Paine v. Meller, exactly 
 accords with the doctrine of the civil law. Indeed this 
 very case is put in the Institutes(^/). " Cum autem emptio 
 et vendiiio contracta sit, periculum rei venditce statim ad 
 emptorem pertinet, tametsi adhuc ea res empiori tradita 
 non sit. Itaque si — aut cedes iotce, vel aliqua ex parte, 
 
 (b) Ex parte Minor, 1 1 Yes. jun. 659. Vide p. 60. See Zaguiy 
 r. Furnell, 2 Camp. 240. 
 
 (c) Bryant v. Busk, 4 lliiss. 1. 
 
 {(l) III. xxiv. 3. Read Puff", de Jure J^'ntnric et Gentium, 1. 5, c. 6, 
 s. 3. 
 
 (I) la the 2d vol. of Coll. of Decis. p. 56, are the two following 
 cases : — The peril of a house sold, and thereafter burnt, was found to 
 be the buyer's, though the disposition bore an obligement to put the 
 buyer in possession, because the buyer did voluntarily take possession 
 and rebuild the house, and likewise was enfeofied before the burning. 
 Hunter r. Wilsons. — A house bought being burnt, the Lords found, 
 that the property being transferred to the buyer, by his being enfeotfed, 
 and the keys being ofiered to him, the accidental loss must follow 
 the buyer, although there was a part of the price unpaid, there being 
 a difference about it, which was referred to some friends to be deter- 
 mined, and which they had not done when the burning happened. 
 Atchison r. Dickson. 
 
 (*279)
 
 Q\Q OF THE CONSIDERATION. 
 
 incendio consiimpioe fuerint — eniptoris damnum est, cui 
 necesse est, licet rem nonfuerit nactus, pretlum solvere.'''' 
 
 It is hardly necessary to remark, that although tlie 
 Court will enforce a specific performance, notwithstand- 
 ing that the estate is destroyed, yet this will not be done 
 unless the title be good, or the purchaser has, previously 
 to the accident, waved any objections to it. 
 
 The case of Paine v. Meller may be considered as 
 having also settled, that a purchaser would be entitled to 
 any benefit accruing to the estate after the agreement, 
 and before the conveyance ; for Lord Eldon said, " If a 
 man had signed a contract for a house upon that land 
 which is now appropriated to the London Docks, and that 
 house was burnt, it would be impossible to say to the 
 purchaser, willing to take the land without the house, 
 because much more valuable on account of this project, 
 that he should not have it." 
 
 This also appears to have been admitted in a case(6') 
 where a man contracted for the purchase of a reversion, 
 and afterwards the lives dropped before the contract was 
 carried into execution ; for, although the Court did not 
 decree a specific performance, they proceeded entirely on 
 the laches and trifling conduct of the purchaser, and 
 never even hinted that the contract should not be per- 
 formed on account of the lives having dropped. 
 
 Indeed this point flows from the decision in Paine v. 
 (*)Meller ; and it was the rule of the civil law, that the 
 purchaser should benefit by the accretion to the estate 
 before the conveyance : nam et commodum ejus esse debet 
 cujus periculum est(f). 
 
 These cases suggest the observation that, in agree- 
 ments for the purchase of houses, some provision should 
 be made for their insurance until the completion of the 
 contract. 
 
 (e) Spurrier v. Hancock, 4 Ves. jun. 667 ; and see P. Wms. 62. 
 (/) Inst, tibi sup. 
 (*280 ) 

 
 OF THE CONSIDERATION. 
 
 341 
 
 II. It equally follows, from the general rule of equity, 
 by which that which is agreed to be done is considered as 
 actually performed, that if a person agree to give a con- 
 tingent consideration for an estate, as an annuity for the 
 life of the vendor, and the vendor die before the convey- 
 ance is executed, by which event the annuity ceases, yet 
 the purchaser will be entitled to a specific performance of 
 his contract. This, we observe, is a much stronger case 
 than that before discussed. There a loss was actually 
 sustained, and the only question was, upon whom it 
 should fall. But in this case, if performance of the 
 agreement were not compelled, the parties would stand 
 in precisely the same situation as before the contract ; 
 whereas, by performing the agreement, the estate is given 
 to the purchaser, without his paying any consideration 
 for it. A steady adherence to principle compels the 
 Court to overlook the hardship of this particular case, 
 and the doctrine rests upon high authority. 
 
 Thus in the case of Mortimer v. Cnpper(g), A. con- 
 tracted to sell an estate to B. for 200/. and 50/. a year an- 
 nuity ; and two days after the contract was reduced into 
 writing, A. was found drowned : the Lord Chancellor di- 
 rected an inquiry as to the value of an annuity for the life 
 of A., in order to introduce the cjuestion, whether an estate 
 (*)being disposed of for an annuity, which is a contingen- 
 cy, the contract shall fall to the ground, if no payment of 
 the annuity shall be made. He said, that he thought, if 
 the price were fair, the contract ought not to be cut down, 
 merely because the annuity, which was a contingent pay- 
 ment, never became payable. 
 
 The parties in the above cause were so well satisfied 
 with the opinion of the Court, that they never, it is said, 
 brought it back for further directions(/i). 
 
 ig) 1 Bro. C. C. 156. See Wyvill i'. Bishop of Exeter, 1 Price, 292. 
 (h) See 3 Bro. C. C. 609, sed qu. 
 
 (*281)
 
 342 ^^ '^'^^^ CONSIDERATION, 
 
 So in a later cn,se(i), where A. sold an estate by auc- 
 tion, in consideration of a life annLiity(l), the first pay- 
 ment to be made on the 25th of December 1787 ; but in 
 case he should die before the 29th of September 1787, 
 up to which time he was to receive the rents, the contract 
 should be void. A. died on the 1st of February 1788, 
 after a sudden and short illness of only two days ; and 
 owing to some delays, the conveyances were not executed. 
 The quarter's payment, due at Christmas, was tendered to 
 the vendor's agent by the purchaser, a few days after it 
 became due ; but the agent declined receiving it, saying, 
 that the conveyance would be soon completed, and that it 
 was not necessary for the purchaser to make such payment 
 in the mean time. On the first hearing. Lord Thurlow 
 said, he did not see that if an annuity was contracted for 
 why the consideration should not be paid. It was, he said, 
 objected, that the contract could not be carried into execu- 
 tion modo et forma, and that had great weight where there 
 had been no payment. His Lordship afterwards made his 
 decree for a specific performance, on payment of the ar- 
 rears of the annuity, the consideration for the purchase of 
 the estate. 
 
 (*)The case of Paine v. Meller bears on this point also. 
 Lord Eldon, in delivering judgment, said, that as to the 
 annuity cases, and all others, the true answer had been 
 given ; that the party has the thing he bought, though no 
 payment may have been made ; for he bought subject to 
 contingency ; and in the later case of Coles v. Trecothick, 
 his Lordship expressed the same opinion(/c). 
 
 But if in a case of this nature, a payment of the annuity 
 become due before the death of the vendor, and the pur- 
 
 (t) Jackson r. Lever, 3 Bro. C. C. 605. 
 (fc) See 9 Ves. jun. 246. 
 
 (I) See Appendix, No. 1 3, for a statement of the new Annuity Act. 
 
 (*282)
 
 OF THE CONSIDERATION. 
 
 343 
 
 chaser neglect to make or tender it, he cannot insist upon 
 a specific performance. 
 
 This was decided by the case of Pope v. Root(/). A. 
 contracted with B. for the sale of an estate to him, in con- 
 sideration of a life annuity, and the completion of the 
 agreement w^as delayed by the illness of a mortgagee, who 
 was to have been paid off. Two days after the time men- 
 tioned for completing the purchase. A, met with an acci- 
 dent, and died within a few days. By the terms of the 
 contract, the first payment of the annuity became due pre- 
 viously to the death oi A., but it was not paid or tendered. 
 And Lord Chancellor Bathurst dismissed the bill for a 
 specific performance, and the decree was aflirmed in the 
 House of Lords(m), (I). 
 
 The reader will observe, that the decisions in the cases 
 of Mortimer r. Capper and Jackson v. Lever, do not in- 
 fringe upon that of the House of Lords, in the prior case 
 of Pope V. Root, but reduce the rules on this subject to 
 an equitable and uniform standard ; for the only case in 
 (*)which a purchaser cannot require the assistance of 
 equity, is where he has by laches forfeited his right to its 
 aid, namely, where a payment of the annuity became due, 
 and he neglected to pay or tender it. 
 
 To obviate all doubt, it seems advisable in agreements 
 for purchase, where the consideration is an annuity for the 
 life of the vendor, to expressly declare, that the death of 
 the vendor, previously to the completion of the contract, 
 shall not put an end to it, although a payment of the 
 annuity shall not have become due, or having become due, 
 
 (/) 7 Bro. P. C. 184. 
 
 (m) See Lord Balhurst's decision in Baldwin r. Boulter, 1 Bro. C. 
 C. 156, cited. 
 
 (I) One writer thought, that the inadequacy of the consideration in- 
 fluenced this decision ; see 2 Pow. on Contracts, 76 ; but it does not 
 appear that any inadequacy was actually proved. 
 
 (*283)
 
 344 ^^ "^"^ CONSIDERATION. 
 
 shall not have been made or tendered ; but that, on the 
 contrary, the purchaser shall be entitled to a conv.eyance, 
 on payment of the annuity up to the death of the vendor. 
 
 In the cases just dismissed, the purchaser, by the death 
 of the vendor, obtained the estate without paying any, or 
 only a nominal consideration for it. Perhaps a case may 
 arise w^here the vendor having received the purchase- 
 money, may, by the death of the purchaser, be entitled to 
 retain the estate also, although he may not be his heir. 
 This case was putin the argument of Burgess t?.Wheate(w): 
 a purchase, and the money paid by the purchaser, who 
 dies without heir, before any conveyance. It was said, if 
 the lord could not claim the estate, and pray a convey- 
 ance, the vendor would hold the estate he has been paid 
 for, and keep tht3 money too. Sir Thomas Clarke, in de- 
 livering his opinion, said, that he thought the lord could 
 not pray the conveyance ; to say he could was begging 
 the question. And as to the vendor's keeping both the 
 estate and the money, it was analogous to what equity 
 does in another case ; as where a conveyance is made 
 (*)prematurely, before money paid, the money is consi- 
 dered as a lien on that estate in the hands of the vendee. 
 So where money was paid prematurely, the money would 
 be considered as a lien on the estate in the hands of the 
 vendor, for the personal representatives of the purchaser ; 
 which w^ould leave things in statu quo. 
 
 It may be doubted, however, whether this case, if it 
 should ever arise, would be decided according to Sir 
 Thomas Clarke's opinion. Where a lien is raised for 
 purchase-money under the usual equity(o), in favor of 
 a vendor, it is for a debt really due to him, and equity 
 merely provides a security for it. But in the case under 
 
 (n) 1 Blackst. 123. 
 (o) Vide infra, ch. 12. 
 
 (*284)
 
 OF THE CONSIDEUATION. <*t r 
 
 consideration, equity must not simply give a security for 
 an existing debt ; it must first raise a debt against the 
 express agreement of the parties. The purchase-money 
 was a debt due to the vendor, which upon principle it 
 would be difficult to make him repay. What power has 
 a court of equity to rescind a legal contract like this ? 
 The question might perhaps arise if the vendor was seek- 
 ing relief in equity, but in this case he must be a defend- 
 ant. If it should be admitted that the money cannot be 
 recovered, then of course he must retain the estate also, 
 tintil some person appear who is by law entitled to require 
 a conveyance of it. 
 
 It has been decided that a specific performance will be 
 decreed of a contract for sale of a life annuity, although 
 the annuitant be dead before the bill be filed, provided 
 the contract was a continuing one at his death^p). This 
 is the converse of the point decided in Mortimer v. Cap- 
 per, and that line of cases. The Vice-Chancellor (Sir 
 John Leach) observed, that it may now be considered as 
 (*)the settled law of the court, by the cases of Mortimer 
 V. Capper, and Jackson v. Lever, and the reported dicta 
 of Lord Eldon, especially in the case of Coles v. Treco- 
 thick, that if the price of property be an annuity for the 
 life of the vendor, his death before the conveyance will 
 form noobjection to the specific performance of the contract. 
 The vendor agrees to sell for a contingent price, and those 
 who represent him cannot complain that the contingency 
 has turned out unfavorably. The same principle neces- 
 sarily applies to a case ^^ here the life annuity is not the 
 price, but is the subject of the sale. If the annuitant 
 happens to die before the annuity is legally transferred 
 to the purchaser, the death of the annuitant can form no 
 objection to the specific performance of the contract. 
 
 (p) Kennedy r. Wenham, 6 Madd. 355. 
 
 VOL. 1. 44 (*2S5)
 
 346 
 
 OF THE CONSIDERATION. 
 
 The purchaser agrees to buy an interest of uncertain 
 duration, and he cannot complain that the contingency is 
 unfavorable to him. 
 
 In the above case, the purchaser was entitled to arrears 
 of the annuity, but the annuity was charged on the pur- 
 chaser's own estate. It was argued that by the death of 
 the annuitant, a legal transfer of the annuity was no longer 
 necessary to the purchaser, and the only act to be done 
 was the payment of a sum of money by him to the seller, 
 and that the seller ought therefore to have proceeded at 
 law and not in equity. The Vice-Chaiicellor said, that 
 a court of equity entertains a suit for specific performance 
 by a purchaser, in ordt^' to give him the very subject of 
 his contract ; and although the demand of a vendor be 
 merely for a sum of money, it will entertain a similar suit 
 for him, upon the principle that the remedies ought to be 
 mutual. If the death of a life-annuitant were to happen 
 at such a time that a purchaser in effect took no benefit 
 under his contract, which might well happen where his 
 title was to commence at a future time, there it might be 
 (*)made a question whether, as at the time of the bill fil- 
 ed a purchaser could file no bill in equity, the principle of 
 mutual remedy could enable the vendor to file such a bill. 
 But that is not this case ; here the purchaser has an 
 equitable title to the arrears of the annuity between the 
 time of his purchase and the death of the annuitant, 
 which would in principle now support a bill on his part 
 for specific performance, although the facts of the case 
 would not make such a bill advantageous to him. He 
 considered this case, therefore, strictly a case of mutual 
 remedy, so as to entitle the vendor to file a bill for spe- 
 cific performance ; and it appeared to him to make no 
 difference in principle that the annuity being charged 
 upon the estate of the purchaser himself, he could prac- 
 
 (*286)
 
 OF THE CONSIDERATION. 
 
 347 
 
 tically satisfy his demand for arrears, by retainer, without 
 the necessity of a legal grant(180). 
 
 (180) Where Jones agreed to attend the sale of Hubbard's land, 
 which was to be sold ; and if it should be struck off to him, that he 
 would convey the land to the latter upon the payment of the money 
 within twelve months. He became the purchaser ; but before the ex- 
 piration of the 12 months Hubbard died. The Court rescinded the 
 contract upon making a just compensation, which was the principal and 
 interest. Jones v. Hubbard, 6 Munf. R. 251,
 
 [ 348 ] 
 
 r)CHAPTER YI. 
 
 OF THE PARTIAL EXECUTION OF A CONTRACT, WHERE 
 A VENDOR HAS NOT THE INTEREST WHICH HE PRE- 
 TENDED TO SELL ; AND OF DEFECTS IN THE QUANTITY 
 AND QUALITY OF THE ESTATE. 
 
 SECTION I. 
 Where the Vendor has not the Interest which he s'old. 
 
 I. Where a person sells an interest, and it appears 
 that the interest which he pretended to sell was not the 
 true one ; as, for example, it was for a less number of 
 years than he had contracted to sell, the purchaser may 
 consider the contract at an end, and bring an action for 
 money had and received, to recover any sum of money 
 which he may have paid in part performance of the 
 agreement for the sale : and the vendor offering to make 
 an allowance pro tanto, will make no difference ; it is 
 sufficient for the plaintiff to say, it is not the interest 
 which 1 agreed to purchase(«)(181). 
 
 (a) Farrer v. Nightingale, 2 Esp. Ca. 639 ; and see Hearn v. Torn- 
 lin, Peake's Ca. 192 ; Thomson v. Miles, 1 Esp. Ca. 184 ; Mattock r. 
 Hunt, B. R. 15 Feb. 1806 ; Hibbert v. Shee, 1 Canipb. Ca. 113. See 
 also Duffel v. Yv'ilson, ib. 401 ; and see ch. 8, infra. 
 
 (181) See Weaver v. Benlley, 1 Caines' Rep. 47. ; wherein it was 
 held, that the purchaser might maintain assumpsit to recover back the 
 purchase aioney, although the contract was under seal. See also, 
 
 (*287)
 
 OF THE PARTIAL EXECUTION OF A CONTRACT. 
 
 349 
 
 But in a late case(6) at nisi piius, where the agreement 
 was to sell " the unexpired term of eight years' lease and 
 good will," &c. and it ajjpeared that, at the date of the 
 agreement, the unexpired term in the lease was only 
 seven years and seven months, Lord Ellenborough said, 
 (*)that the parties could not be supposed to have meant that 
 there was the exact term of eight years unexpired, neither 
 more nor less by a single day. The agreement must, 
 therefore, receive a reasonable construction, and it seems 
 not unreasonable that the period mentioned in the agree- 
 ment should be calculated from the last preceding day 
 when the rent was payable, and including, therefore, the 
 current half year. Any fraud or material misdescription, 
 though unintentional, would vacate the agreement, but 
 the defendant might here have had substantially what he 
 agreed to purchase. 
 
 Where a house was sold by auction, and no notice was 
 taken of a fee-farm rent of 5s. 4f/. charged upon that 
 and upon other property, to a very great amount, the 
 purchaser brought an action for breach of the agreement, 
 and Sir Vicary Gibbs for the vendor, the defendant, de- 
 clined arguing the point(c). 
 
 And where a particular described the subject of sale to 
 be an annuity of so much, payable out of the tolls of 
 Waterloo Bridge, the Court considered that the purchaser 
 would make some inquiry as to the annuity ; but as the 
 Bridge Act did not speak of any power to redeem the 
 annuities to be granted, and the annuity teas made subject 
 
 (6) Behvorlh r. Hapell, 4 Camp. Ca. 140. 
 
 (c) Turner v. Beaurain, Sitt. Guildh. cor. Lord Kllenborough, C. J. 
 2d June 1806 ; and see Barnwell v. Harris, 1 Taunt. 430. 
 
 D^Utricht V. Melchor, 1 Dall. 428. Gillet v. Maynard, 5 Johns. Rep. 
 85. Judsonv. Wass, 11 Johns. Rep. 627. Raymond v. Beamard, 12 
 Johns. Rep. 274. Putnam v. Westcot, 19 Johns. Rep. 73. Lijon v. 
 dmiable, 4 Conn. Rep. 350. Hoioes v.. Barker, 3 Johns. Rep. 606. 
 
 (*2eS)
 
 350 ^^ THE PARTIAL EXECUTION 
 
 to redemption, it was held that the contract was not bind- 
 hig on the purchaser ; and the Court was of opinon, that 
 sellers should be strictly bound to disclose the real nature 
 of the subject of the contract((/). 
 
 But, notwithstanding that the vendor has a different 
 interest to what he pretended to sell, equity will, in some 
 cases, compel the purchaser to take it. 
 
 Thus, although the estate is charged with trifling incum- 
 brances, which cannot be discharged, yet it seems that, 
 (*)under some circumstances, if a satisfactory indemnity 
 can be given against them, equity will compel a specific 
 performance(e)(I)(182). This, however, is evidently a 
 jurisdiction which cannot be too cautiously exercised. In 
 a late case. Lord Eldon said, that he did not apprehend 
 that the Court could compel the purchaser to take an in- 
 demnity, or the vendor to give it(/)(183). 
 
 So, although the vendor may not be entitled to the es- 
 tate for the number of years which he contracted to sell, 
 3'et, if the deficiency were not great, equity would certain- 
 ly decree a performance of the contract at a proportiona- 
 ble price (^). 
 
 {d) Coverley v. Burrell, M. T. 1821. B. R. MS. 
 
 (e) Howland v. Norris, 1 Cox, 59 ; Hasley v. Grant, Horniblow v. 
 Shirley, 13 Ves. jun. 73, 81 ; see 2 Swanst. 223 ; and see Barnwell v. 
 Harris, 1 Taunt. 430 ; see also Hays v. Bailey, stated in ch. 7. post. 
 Wood V. Bernal, 19 Ves. 220. 
 
 (/) See 1 Ves. & Beam. 225. 
 
 (g-) See Guest v. Homfray, 5 Ves. jun. 818 ; and see Hanger v. 
 Eyles, 21 Vin. Abr. (A), pi. 1 ; 2 Eq. Ca. Abr. 689 ; see also 10 Ves. 
 jun. 306 ; 13 Ves. jun. 77. 
 
 (I) Although it seems evident that this equity would be enforced in 
 a case, for instance, like Turner v. Beaurain, yet the cases referred to 
 are not decisive authorities in favor it. 
 
 (182) See King v. Bardeau, 6 Johns. Ch. Rep. 38. Ten Broeck v. 
 Livingston, 1 Johns. Cha. Rep. 357. 363. 
 
 (183) See Boyle v, Roivand, 3 Des. 655. 
 (*289)
 
 OF A CONTRACT. 
 
 351 
 
 But if the number of years be considerably less than 
 the vendor pretended to sell, equity, so far from interfer- 
 ing in his favor, will assist the purchaser in recovering any 
 deposit which he may have paid. 
 
 Thus, in Long v. Fletcher(/i), A. pretending he had a 
 term of sixteen years to come, in a house, agreed to sell it 
 to B., and jB. paid 100/., part of the consideration money, 
 down. B. entered, but finding that A. had only a term of 
 six years in the house, brought his bill to have an account, 
 his money refunded, and the bargaiu set aside ; and ac- 
 cordingly B. was decreed to account for the profits, and 
 the consideration- money to be refunded, and B., upon his 
 own account, to have tenant allowances made him. 
 
 So, if a purchaser contract for what is stated to be an 
 (*)original lease, and it turn out to be an under-lease for 
 the whole term, wanting a few days, it should seem that 
 equity would not compel the purchaser to perform the 
 contract. It is impossible, from the nature of the thing, 
 to make any compensation for the reversion outstanding, 
 and yet it may become very valuable ; and it is of great 
 importance to a purchaser of a lease not to have any third 
 person stand between him and the owner of the inheri- 
 tance (?'). 
 
 It frequently happens that a contract for a leasehold 
 estate is not carried into execution at the time appointed, 
 and the vendor continues in possession. The estate, of 
 course, daily decreases in value, and a question constantly 
 arises, whether the purchaser shall be compelled to pay 
 the full price originally agreed to be given for the estate, 
 or what arrangement shall be made between the parties. 
 
 In a modern case(j ), where this point arose, the 
 
 {h) 2 Eq. Ca. Abr. 5. pi. 4. 
 
 (t) Vide infra, where an underlease will be enforced against a ven- 
 dor under an agreement to assign, div. II. 
 
 {j) Dyer v. Hargrave, 10 Ves. jun. 605. See and consider King r. 
 AVightman, 1 Anst. 80 ; Fenton v. Browne, 14 Yes. jun. 144. 
 
 (*290)
 
 352 
 
 OF THE PARTIAL EXECUTlOiN 
 
 Master of the Rolls said, the reasonable course which he 
 should adopt, was, that for the time elapsed before the 
 execution of the agreement, in consequence of the pen- 
 dency of the suit, interest should be paid by the purchaser, 
 and a rent should be set upon the premises in respect of 
 the possession of the vendor. 
 
 This rule at once provides for the interest of both par- 
 ties, and accords with the maxim of equity, by which that 
 which is agreed to be done, is considered as actually per- 
 formed. The purchase-money, from the time of the con- 
 tract, belongs to the vendor, who is entitled to interest on 
 it while it is retained by the purchaser. 'The estate from 
 the same time belongs to the purchaser, who is entitled to 
 a rent for it while it is occupied by the vendor. 
 
 (*)In Cuthbert v. Baker(/c), the quit rents of a manor 
 were stated in the particulars of sale to be 21. a year, and 
 they amounted to only 305. a year ; but a performance in 
 specie was decreed, and it was referred to the Master to 
 ascertain what compensation should be allowed in respect 
 of the deficiency. 
 
 And it has been held that quit rents are subjects of 
 compensation, probably because they may be regarded as 
 incidents of tenure(/). 
 
 Where an estate is sold by auction, or before a Master, 
 in lots, and the vendor has not a title to all the lots sold, 
 equity will compel the purchaser to take the lots to which 
 a title can be made, if they are not complicated with the 
 rest ; and will allow him a compensation pro tanto. 
 
 Thus in Poole v. Shergold(m), a man became the pur- 
 chaser of several lots of an estate, to two of which no title 
 could be made. And upon the Master's report Lord 
 
 {k) Reg. Lib. A. 1790, fol. 442. 
 
 {I) Esdaile r. Stephenson, 1 Sim. & Stu. 122. 
 
 (m) 2 Bro. C C. 118 ; 1 Cox, 273. See 6 Yes. jun. 676. 
 
 (*291)
 
 OF A CONTRACT. 
 
 353 
 
 Kenjon said, he must take it for granted, these two lots 
 were not so complicated with the others, as to entitle the 
 purchaser to resist the whole ; and therefore decreed a 
 specific performance ^ro tanto(\S^), 
 
 But if a title cannot be made to a lot w'hich is compli- 
 cated with the rest, the purchaser will not be compelled 
 to accept the lots to which a title can be made. 
 
 Thus, in the same case. Lord Kenjon said, if a pur- 
 chase was made of a mansion-house in one lot, and 
 farms, fee. in others, and no title could be made to the lot 
 containing the mansion-house, it would be a ground to 
 rescind the whole contract. 
 
 Lord Kenyon seems afterwards to have gone a step 
 (*)farther, and to have been of opinion, that such a con- 
 tract ought not in any case to be enforced against a pur- 
 chaser. 
 
 For sitting in a court of law(r/), he held, that the per- 
 formance of a contract for the sale of some houses ou^ht 
 not to be compelled, as a title could not be made to all the 
 houses bought ; and this, notwithstanding they were sold 
 in separate lots. He said, when a party purchases several 
 lots of this description at an auction, it must be taken as 
 an entire contract ; that is, that the several lots are pur- 
 chased with a view of making them a joint concern. The 
 seller, therefore, shall not, in case of any defect in his title 
 to one part, be allowed to abandon that part at his pleasure, 
 and to hold the purchaser to his bargain for the residue. 
 From such a doctrine much injustice might result, as the 
 part to which a seller could not make a title might be so 
 circumstanced, that without it the other parts would be of 
 
 (n) Chambers v. Griffiths, 1 Esp. Ca. 149. 
 
 (184) See Van Eps v. Coiyoration of Schenectady, 12 Johns. Rep. 
 436. Sioddart v. Smith, 5 Binn. 355. Waters v. Travis, on appeal, 
 9 Johns. Rep. 450. Oahorne v. Bremar, 1 Des. 4S6. See .'ilso, Hep- 
 burn V. ^nld, 5 Cranch, 262. Ch-eemcalt v. Born, 3 Ycates, 6. 
 
 VOL. I. 46 (*292)
 
 554 ^^ "^^^ PARTIAL EXECUTION 
 
 little, perhaps of no value ; or it might leave it in the 
 power of the seller, or any other person who might come 
 to the possession of such part, to deprive the purchaser of 
 everj degree of enjoyment or beneficial use of that part 
 which he had purchased. He added, that a case under 
 circumstances precisely similar to the present, had been 
 decided before him, when Master of the Rolls. That, on 
 that case coming before him, he had found that his prede- 
 cessor there. Sir Thomas Sewell, had ruled contrary to 
 the doctrine he was now delivering ; but that he at the 
 Rolls had overruled Sir Thomas Sewells' determination, 
 with the general approbation of the bar. 
 
 And the Court of Exchequer appear to have been of the 
 same opinion as Lord Kenyon. For in a case(o), where 
 a person purchased several lots of an estate sold under 
 a decree of the Court, and the biddings were afterwards 
 opened as to one lot, the Court were of opinion, that 
 (*)he had an option to open the biddings as to the rest of 
 the lots. 
 
 In a late casefj?), in which most of the authorities on 
 this head were cited, the cases of Chambers v. Griffiths 
 and Boyer v. Blackwell were not noticed ; but I learn that 
 Lord Eldon afterwards mentioned from the bench that he 
 had met with the case of Chambers v. Griffiths ; and he 
 desired it to be understood, that he was not of the same 
 opinion as Lord Kenyon ; and, in a still later case, Lord 
 Eldon expressed an opinion, that Lord Kenyon's rule 
 would not be followed unless it could be shown that there 
 was an understanding that the purchaser was not to take 
 any of the lots unless he could obtain them a]l(^). 
 
 The rules laid down in Poole v. Shergold must therefore 
 still be considered the law of the Court. It is indeed re- 
 
 (o) Boyer v. Blackwell, 3 Anstr, 657. 
 
 {p) Drewe v. Hanson, 6 Vcs. jun. 675. 
 
 (q) 16 July 1816, MS. See Lewin v. Guest, 1 Russ. 325. 
 
 (*293)
 
 OF A CONTRACT. 
 
 355 
 
 markable, that in Chambers v. Griffiths, Lord Kenj'oii 
 should have overlooked his decision in Poole v. Shergold ; 
 more especially as it in a great measure obviated the ob- 
 jections w^hich he made to a partial execution bj a court 
 of equity of a contract for purchase of several lots of an 
 estate. The doctrine, however, could not apply to an 
 action at lavi', because although the same man purchase 
 several lots at an auction, yet a distinct contract arises up- 
 on each(r). Chambers v. Griffiths cannot tiierefore be 
 maintained as an authority even for the legal rule(185). 
 
 Where an estate is sold in one lot, either by private 
 contract, or public sale, and the vendor has not a title to 
 the whole estate, he cannot enforce the contract at law(5), 
 
 (r) Emmerson v. Heelis, 2 Taunt. 38 ; James v. Shore, 1 Stark. 
 426 ; see Baldey v. Parker, 2 Barn. & Cress. 37 ; 3 Dowl. & Ryl. 
 220. S. C. 
 
 (s) Tomkins v. White, 3 Smith, 435. 
 
 (185) See Hspburn v. Jluld, ut supra. Osborne v. Bremar, 1 Des. 
 4S6. Van Ejjs v. Corporation of Schenectady, 12 Johns. Rep. 436, 
 443. and 3 Yeates, 8. Nor in equity. See Hepburn v. Auld, 5 Cranch, 
 262, 276. Butler v. O'Hear, 1 Des. 382. 
 
 In Croome u. Lediard, 2 M. & K. R. in Ch. 251, by a written 
 agreement between plaintiff and defendant, the plaintiff agreed to sell 
 and the defendant to purchase, upon the terms stated, the Leigh estate : 
 and by the same agreement the defendant agreed to sell another estate 
 called the Haresfield estate ; and eventually the defendant was unable 
 to make a good thle to the latter estate : held, that the plaintifl" was en- 
 titled to a specific performance of the "latter contract. But evidence 
 aliunde was not admitted to show that the agreement was to take effect 
 on the basis of a mutual exchange. The Lord Chancellor considered 
 the agreements as distinct and wholly independent of each other. This 
 cnse was distinguished from other cases, such as Poole i". Shergold, 
 Knatchbull v. Grueber , Dalby v. Pullen, Price v. Price, Cassamajor v. 
 Strode ; because t here, the question was between a vendor and pur- 
 chaser, in this c ase, each party was both buyer and seller. Where two 
 estates are confer minous, or where there was a mixed use and enjoy- 
 ment of the estates, as in the case of an easement by one party over 
 the property of the^tther, the contract depending on such a mutuality of 
 purchase and sale might well exist.
 
 356 
 
 OF THE PARTIAL EXECUTION 
 
 unless perhaps a separate value was put on different parts 
 of the estate, in which case the contract in favor of jus- 
 tice (*)inay be considered distinct. At law neither a ven- 
 dor can, on an entire contract, recover part of the pur- 
 chase-money, where he cannot make a title to the whole 
 estate sold ; nor would a purchaser be suffered in a court 
 of law to say, that he would retain all of which the title 
 was good, and vacate the contract as to the rest : such 
 questions being subjects only for a court of equity(/). 
 
 But if the part to which the seller has a title was the 
 purchaser's principal object, or equally his object with the 
 part to which a title cannot be made, and is itself an in- 
 dependent subject, and not likely to be injured by the other 
 part, equity will compel the purchaser to take it at a pro- 
 portionate price ; and in these cases it will be referred to 
 the Master, to inquire, " whether the part to which a 
 title cannot be made, is material to the possession and 
 enjoyment of the rest of the estate(M)." 
 
 Thus in a case(.i*) before Sir Thomas Sewell, a man 
 who had contracted for the purchase of a house and wharf, 
 was compelled to take the house, although he could not 
 obtain the wharf; and it appeared that his object was to 
 carry on his business at the wharf (I) ; which, Lord Ken- 
 yon said, was a determination contrary to all justice and 
 reason (i/). 
 
 (/) Johnson v. Johnson, 3 Bos. & Pull. 162. 
 
 («) M'Queenv. Farquhar, 11 Ves. jun. 467; Reg. Lib. B. 1804. 
 fol. 1095; KnatchbuU v. Grueber, 1 Madd. 153; Bowyer v. Bright, 
 13 Price, 698. 
 
 (.c) See 6 Ves. jun. 678 ; 7 Ves. jun. 270, cited ; and see M'Queen 
 V. Farquhar, 11 Ves. jun. 467. 
 
 (y) 1 Cox, 274. 
 
 (I) This case has been frequently disapproved of, and would not have 
 been so decided at this day. See 1 Esp. Ca. 152 ; 6 Ves. jun. 679 ; 
 13 Ves. jun. 78. 228. 427. In Stewart v. Alliston, 1 Mer. 26, Lord 
 Eldon expressed hinaself much more strongly agalf^st the principle of 
 these cases, than appears by the report. 
 
 (*294)
 
 OF A CONTRACT. gc^ 
 
 And in the late case of Drewe v. Hanson(2:), which 
 (*)arose upon the sale of an estate, together with the va- 
 luable corn and hay tithes of the whole parish, it appeared, 
 that the principal object of the purchaser was the corn 
 tithes, and that half the hay tithe belonged to the vicar, 
 and the other half was commuted for by a payment of 2/. 
 per annum, the nature of which did not appear. Upon 
 the facts, as they then appeared. Lord Eldon would not 
 give judgment, but he seemed clearly of opinion that the 
 hay tithe, if not of great extent or of such a nature 
 as to prejudice the corn tithe, was a subject for compen- 
 sation : but otherwise not, as the purchaser would not 
 get the thing which was the principal object of his con- 
 tract («). 
 
 In a.case(6) often cited, where a man had articled for 
 the purchase of an estate tithe-free, but which afterwards 
 appeared to be subject to tithes. Lord Thurlow, it was 
 said, decreed a specific performance, although the pur- 
 chaser proved, that his object was to buy an estate 
 tithe-free. This, however, to use Lord Eldon's words(c), 
 is a prodigious strong measure in a court of equity to 
 say as a discreet exercise of its jurisdiction, that the 
 contract shall be performed, the defendant swearing and 
 positively proving that he would have had nothing to do 
 with the estate if not tithe-free. But it now appears 
 from the report of the case, published by Mr. Cox, that 
 the estate was subject only to a money-payment of 14/. 
 
 (z) 6 Ves. jun. 675. 
 
 (a) See Vancouver v. Bliss, 1 1 Yes. jun. 458 ; Stapylton v. Scott, 
 13 Ves. jun. 425. 
 
 (b) Lord Stanhope's ca?e, 6 Ves. jun. 678, cited ; Lowndes v. Lane, 
 2 Cox, 363 ; 6 Ves. jun. 676, cited ; but see Pincke r. Curteis, cited 
 ibid. ; and see Ro^e v. Calland, 5 Ves. jun. 186 ; "VVallinger v. Hilbert, 
 1 Mer. 104. 
 
 (c) See 6 Ves. jun. 679 ; and sec 17 Ves. jun. 280. 
 
 (*295)
 
 qcg OF THE PARTIAL EXECUTION 
 
 in lieu of tithes(6?). And in the case of Ker v. Clo- 
 bery(*)(e), where the estate was sold before the Master, 
 and the particulars stated, that " the whole of the above 
 lands are only subject to a modus for tithe hay of 21. 
 per annum," Lord Eldon was of opinion, that a purchaser 
 of an estate stated to be tithe-free, or subject to a modus, 
 could not be compelled to take it with a compensation, 
 if the estate is not tithe-free. His Lordship said, that 
 he had so decided in a case from Yorkshire, in which he 
 had told the purchaser, if he would take the- estate with 
 a compensation, he must undertake to pay the tithes to 
 the vendor. The question therefore is now at rest( 186). 
 
 Where an estate is sold tithe-free, the question whether 
 tithe-free is not a question of title but of fact : if the sale 
 was of lands and of tithes, then the matter of tithe would 
 be matter of t\i\e(f). 
 
 In a late case, upon a sale before a Master, where the 
 particular stated about thirty-three acres to be tithe-free, 
 Lord Eldon held, that the principle laid down in Ker v. 
 Clobery did not apply(o). 
 
 In a case, where the estate was described as let on a 
 ground-lease at so much per annum, and it turned out 
 that the lease was at rack-rent. Lord Eldon would not 
 support the sale, although there was the usual clause, that 
 errors or mis-statements should not annul the sale(/i). 
 So when the house was described as brick built, although 
 
 {d) Rowland v. Nonis, 1 Cox, 59. 
 (e) 26 Mar. 1814, MS. 
 (/) Smith V. Lloyd, 2 Swanst. 224, n. 
 
 (g-) Binks V. Lord Rokeby, E. T. 1818. MS. ; S. C. 2 Swanst. 222; 
 and see Smith v. Tolcher, 4 Russ. 302. 
 (/i) Stewart v. Alliston, 1 Mer. 26. 
 
 (186) See Waters v. Travis, 9 Johns. Rep. 450, 465. on appeal. 
 Sloddart v. Smith, 5 Binn. 356. Greemoalt v. Born, 3 Yeates, 6. 
 (*296)
 
 OF A CONTRACT. orn 
 
 in part built of lath and plaster, and there was no party 
 wall ; the same result followed(2'). 
 
 Where the particular described the estate as four hun- 
 dred and twelve acres, two hundred and twentj-seven of 
 (*)which were tithe-free, paying a very small modus ; and 
 it appeared that part of the estate represented to be tithe- 
 free was subject to tithes which the owner was willing to 
 sell. Lord Eldon said, that the allegation was, that two 
 hundred and twenty-seven acres " are tithe-free, paying 
 a very small modus," not stating a positive exemption 
 from tithes ; and where the contract is to sell an estate 
 tithe-free, the vendor not representing himself to have 
 title to the tithes, without entering into the question, 
 whether the purchaser ought to be compelled to take it if 
 not tithe-free ; yet, if he chooses to take it, he cannot 
 compel the vendor to buy the tithes, if there is a positive 
 title to them in pernancy ; all he can have is compensa- 
 tion(A;)(187). 
 
 If a purchaser, with notice of a defect in a title to a 
 part of the estate which is complicated with the rest, or 
 which is the principal object of his contract, take pos- 
 session of the estate, and prevent the vendor from making 
 a title, he will be compelled to perform the contract, 
 notwithstanding that he insisted upon the objection at 
 the time he entered (/). A deduction from the price 
 will, however, be allowed him, although the situation of 
 the land will not perhaps be taken into consideration. 
 
 A purchaser will not be compelled to take an undivided 
 part of the estate contracted for. Therefore, if a man 
 contract with tenants in common for the purchase of their 
 
 (i) Powell r. Doubble, MS. supra, p. 42. 
 
 (A;) Todd v. Gee, 17 Ves. jun. 273 ; qu. how is the compensation to 
 be estimated? See Ker v, Clobery, supra. 
 
 (/) See Calcraft v. Roebuck, 1 Ves. jun. 221. 
 
 (187) See Wainwright v. Read, 1 Des. 673. 
 
 (*297)
 
 QgQ OF THE PARTIAL EXECUTION 
 
 estate, and one of them die, the survivors cannot compel 
 the purchaser to take their shares, unless he can obtain 
 the share of the deceased. 
 
 And in a case where under a decree a person pur- 
 chased two sevenths of an estate in one lot, and a good 
 title was only made to one seventh, the purchaser was 
 (*)alIowed to rescind the contract as to the whole of the 
 lot(m). 
 
 Nor will a purchaser be compelled to take a leasehold 
 estate, for however long a term ii may be holden, where 
 he has contracted for a freehold (I). Lord Alvanley 
 expressed a clear opinion on this point(w) ; and it has 
 since been expressly determined by Sir William Grant, 
 in a case(o) where the vendor was entitled to a term of 
 four thousand years, vested in a trustee for him, and also 
 to a mortgage of the reversion in fee expectant upon the 
 term which was vested in himself and forfeited, but not 
 foreclosed. Th6 person claiming under the mortgagor of 
 the reversion refused to release, and thereupon the bill 
 was dismissed. 
 
 Neither is a purchaser compellable to accept a copyhold 
 estate in lieu of a freehold (jy)(ll). 
 
 (m) Roffey v. Shallcross, 4 Madd. 227 ; Dalby v. Pullen, 3 Sim. 29. 
 (n) See 2 Bro. C. C. 497 ; 1 Ves. jun. 226. 
 
 (0) Drewe v. Corp, 9 Ves. jun. 368 ; Lib. Reg. 1803, fol. 290. 
 The registrar's book appears to have been again referred to for this case, 
 1 Sim. & Stu. 201, n ; and see 13 Ves. jun. 78. 
 
 (p) See Twining v. Morrice, 2 Bro. C. C. 326 ; and Sir Harry Hick 
 V. PhilHps, Free. Cha. 575. 
 
 (1) As to making a title by a feoffment, and assigning the term to a 
 trustee, see Saunders v. Lord Annesley, 2 Scho. & Lef 73. Doe v. 
 Lynes, 3 Barn & Cress. 388 ; 5 Dowl. & Ryl. 160, S. C. 
 
 (H) In the case of Sir Harry Hick v. Phillips, on account of the 
 unreasonable price at which the estate was sold, a specific performance 
 was refused, although the vendor offered to procure an enfranchisement 
 of the copyholds. See 10 Mod. 504. But this case cannot be con- 
 
 (*298)
 
 OF A CONTRACT o/h . 
 
 But if an estate is sold as copyhold, and represented 
 as equal in value to freehold, it seems that the vendor will 
 be compelled to perform the contract, although the estate 
 (*)prove to be actually freehold(9). If, however, the con- 
 tract for the sale of a supposed copyhold, stipulate that 
 the sale shall be void if any part is freehold, the subject 
 must be proved as described ; and the circumstance of 
 the seller himself, after the first contract, selling the 
 estate to another as copyhold, is not conclusive evidence 
 against him(r). 
 
 So it is said, that a purchaser of an existing lease is not 
 bound to take a new lease instead of the old one, because 
 the purchaser would become an original lessee, instead of 
 an assignee ; and might therefore be subject to burdens, to 
 which he would not have been liable in the latter charac- 
 ter(5). 
 
 It need hardly be observed, that if the estate be sold 
 as in possession, the purchaser cannot be compelled to take 
 it if it is subject to a lease for life(i), or indeed any lease. 
 
 If a vendee proceed in the treaty for purchase after he 
 is acquainted wdth the nature of the tenure, and do not 
 object to it, he will be bound to complete his contract, 
 and cannot claim any compensation on account of the 
 difference in value. 
 
 Thus, where an estate was sold as freehold, with a 
 leasehold adjoining(w), and it turned out on 'examination 
 
 {q) Twining v. Morrice, 2 Bro. C. C. 326 ; and see Browne r. 
 Fenton, sup. p. 3. 
 
 (r) Daniels v. Davison, 16 Ves. jun. 249. 
 
 (s) Mason v. Corder, 2 Marsh. 332. 
 
 (t) Collier r. Jenkins, 1 You. 295. 
 
 (u) Fordyce v. Ford, 4 Bro. C. C. 494 ; and see 6 Ves. jun. 670 ; 
 10 Ves. jun. 508 ; Burnell v. Brown, 1 Jac. & Walk. 168. 
 
 sidered as an authority, except on the ground of the price being unrea- 
 sonable, for equity will in ordinary cases grant the vendor time to pro- 
 cure the fee. See infra, ch. 8. 
 
 VOL. I. 46 (*2W9)
 
 QQ2 OF THE PARTIAL EXECUTION 
 
 that sixty-two acres were leasehold, and only eight free- 
 hold ; yet, as the purchaser proceeded in the treaty after 
 he was in possession of this fact, and did not object to the 
 nature of the property, he was held to have waved the 
 objection. 
 
 (*)And if a purchaser do object to the tenure, yet, if he 
 proceed in the treaty, it seems that he will be compelled 
 to take the estate, on being allowed a compensation(a;). 
 
 In the case of Wirdman v. Kent(y), upon a bill filed 
 by vendors for a specific performance, it appeared that 
 part of the lands sold to the purchaser had been previously 
 sold to one Pavey ; a specific performance was however 
 decreed, and, as to the lands terriered to the defendant, 
 but which had been sold to Pavey, that the plaintiffs 
 should procure Pavey to release them to the defendant, 
 or convey a like quantity of land of equal value to the 
 defendant. 
 
 The particular circumstances of this case do not appear 
 in the report ; but it must be presumed, that the land sold 
 to Pavey was not the object of the purchaser ; and that 
 other land in the neighborhood, of equal value, would 
 suit him as well. Indeed, in one report of this case(2:), it 
 is said, that the grievances complained of were disregard- 
 ed as frivolous. 
 
 To guard against the rules established by the foregoing- 
 decisions, an express declaration should be inserted in all 
 agreements for purchase of estates, that if a title cannot 
 be made to the whole estate, the purchaser shall not be 
 bound to perform the contract pro tanto ; and a similar 
 provision should be made where an estate is bought free 
 from tithes, or with any other collateral benefit, which the 
 purchaser may wish to secure. 
 
 {x) See Calcvaft v. Roebuck, 1 Ves. jun, 221. 
 iy) 1 Bro. C. C. 140. 
 (s) 2 Dick. 594. 
 (*300) 
 
 I
 
 OF A CONTRACT. 
 
 363 
 
 There mav be some rights in an estate not disclosed, 
 which, although in themselves of small value, are inca- 
 j3able of'compensation ; for example, a right of sporting 
 reserved over the estate, and not disclosed to the pur- 
 chaser ; for it would not perhaps be possible to estimate 
 (*)what difference in value such a reservation made(a) ; 
 and such a right would break in too much upon the en- 
 joyment and ownership of a purchaser, to enable equity 
 with propriety to compel him to take the estate with a 
 compensation. 
 
 II. Having considered in what cases a vendor may 
 compel a performance jrro tanto of an agreement, which 
 he is unable wholly to perform ; we may now inquire in 
 what instances a purchaser may insist upon a part per- 
 formance of an agreement, which the vendor cannot exe- 
 cute in toto. 
 
 And first, it seems that in every case where an agree- 
 ment would be in part executed in favor of a vendor, 
 there is much greater reason to afford the aid of the Court 
 at the suit of the purchaser, if he be desirous of taking 
 the part to which a title can be made. And a purchaser 
 may, in some cases, insist upon having the part of an 
 estate to which a title is produced, although the vendor 
 could not compel him to purchase it : it is true, gene- 
 rally, hut not universally^ that a purchaser may take 
 what he can get, with compensation for what he cannot 
 have (6). 
 
 Thus we have seen, that if tenants in common contract 
 for the sale of their estate, and one of them die, the sur- 
 vivors cannot compel the purchaser to take their shares, 
 unless he can obtain the shares of the deceased. But the 
 
 (a) Burnell v. Brown, 1 Jac. & Walk. 168. 
 
 {h) 1 Ves. & Beam. 358, per Lord Eldon ; Western v. Russell, 3 
 Vcri. & Beam. 187; AVhcatlcy i'. Slade, 4 Sim. 126.
 
 Qg^ OF THE PARTIAL EXECUTION 
 
 converse of this proposition does not hold ; for the pur- 
 chaser may compel the survivors to convey their shares, 
 although the contract cannot be executed against the 
 heir of the deceased(c). So even where a vendor has 
 (*)uot a title to a part of the estate, and consequently can- 
 not enforce the acceptance of it, yet the purchaser may 
 elect to take it with the title such as it is(d). But a pur- 
 chaser has no such right where there is a stipulation that 
 the contract shall be void if the purchaser's counsel is of 
 opinion that a good title cannot be made to the estate(e). 
 
 If a man, having partial interests in an estate, chooses 
 to enter into a contract, representing it, and agreeing to 
 sell it, as his own, it is not competent to him afterwards 
 to say, though he has valuable interests, he has not the en- 
 tirety ; and therefore the purchaser shall not have the be- 
 nefit of the contract. For the person contracting under 
 these circumstances is bound by the assertion in his con- 
 tract : and if the vendee chooses to take as much as he 
 can have, he has a right to that, and an abatement (y). 
 
 Therefore in a case where the estate was sold for twen- 
 ty-one years, and represented as held under a church 
 lease, usually renewed every seven years, and it appeared 
 that the seller was only entitled for life to part ; the pur- 
 chaser filed a bill for a specific performance with a reduc- 
 tion. The seller insisted that the purchaser might have an 
 option to put an end to the contract, but that he (the seller) 
 ought not to be compelled to take less than the stipulated 
 price. The decree, however, was for a specific perform- 
 ance, with a reduction of the purchase-money, the interest 
 of the seller being less valuable than it had been repre- 
 
 (c) Attorney-general r. Gower, 1 Yes. 218. 
 
 (d) Vide infra. 
 
 (e) Williams v. Edwards, 2 Sim. 78. 
 
 (J) Per liord Eldon, 10 Ves. jun. 31, 516. The same doctrine 
 ■<vas laid down by his Lordship in Wood v. Griffith, 12 Feb. 1818 ; and 
 Kee 2 Yes. jun. 439, ace. per Lord Rosslyn. 
 
 (*302)
 
 OF A CONTRACT. 
 
 365 
 
 sented to the pu'rchaser(^). Lord Eldon has since observed, 
 that the consequence of this decision was, that if the lives 
 should endure beyond the period of tvventj-one years, the 
 (*)purchaser would have the premises as well as the com- 
 pensation. In that respect the case was new, and deserv- 
 ed great consideration. The Lord Chancellor added, that 
 in a conversation which he had with the Master of the 
 Rolls, they inclined to think it might be right upon this rea- 
 soning, that the estate was purchased subject to a contin- 
 gency affecting its immediate value ; he could not carry it 
 to market, he could do nothing with it that would make it 
 absolute property in him as if he had an absolute term of 
 twenty-one years ; but as the compensation might be ag- 
 gravated enormously, beyond the actual value, so it might 
 be much too small, and the Court would throw the chances 
 together. The only other course was to adopt the princi- 
 ple of indemnity, either by taking security, or laying hold 
 of part of the purchase-money, with a view to compensa- 
 tion if the case should arise, and that was open to this diffi- 
 culty, that the property held subject to the question of 
 indemnity remains unsaleable, unmarketable, and of infi- 
 nitely less value than it would otherwise be. 
 
 In a later case(^), upon a sale of leasehold for lives, 
 the representation of the seller was held to amount to 
 this : that the lessee thereof upon lives, under a church 
 lease, granted the lease in question, with covenants, 
 binding his real and personal representatives to procure 
 renewals to make the complete term sold. It appeared, 
 however, that the covenant to renew was limited, and not 
 binding to the extent mentioned, the estate being in 
 settlement, and the covenants not general. The pur- 
 chaser filed a bill for a specific performance, with an 
 allowance. In effect the difference was between a cove- 
 
 (g-) Dale r. Lister, 16 Yes. jun. 7, cited, 
 (/r) ]Milligan v. Cooke, 16 Vee. jun. 1. 
 
 (*303)
 
 3gg OF THE PARTIAL EXECUTION 
 
 nant by the lessor binding all his assets real and personal, 
 and a covenant which only bound that property which 
 (*)the lessor might permit to go from him to his son, who 
 would be entitled to the property under the settlement. 
 Lord Eldon felt great doubt whether that could be made 
 the subject of a valuation. The purchaser, however, 
 only desired an indemnity upon a real estate ; or by part 
 of the purchase-money to be kept in Court, the sellers 
 receiving the dividends. The Lord Chancellor decreed 
 a specific performance, and directed an inquiry what was 
 the difference between the value of the interest actually 
 sold, and that represented, and such difference to be de- 
 ducted from the purchase-money ; and if the Master 
 should find that he was unable to ascertain such difference 
 in value, or if the purchaser should choose to take the 
 title with a sufficient indemnity, he might, and the decree 
 was affirmed upon a rehearing. 
 
 But the general rule, independently of special circum- 
 stances, is, that the Court can neither compel a purchaser 
 to take an indemnity nor a vendor to give it(i)(190). 
 
 Although a purchaser may in most cases insist upon 
 taking the interest which the vendor can give him, yet it 
 seems that equity wall not decree an under-lease on an 
 agreement to assign, though it appear that the assignment 
 cannot be made without a forfeiture ; for the defendant, 
 in agreeing to assign, might intend to discharge himself 
 from covenants to which he would continue liable by the 
 under-lease (/c). This is, however, a defence which a 
 
 (?■) 1 Yes. & Beam. 265 ; vide ^wst, ch. 7 ; Paton v. Brebner, 1 
 Bligh, 66. 
 
 (fc) Anon. E. T. 1790 ; Fonbl. n. (r), to 1 Trea. Eq. 211, 2 edit. 
 See Mason v. Corder, 2 Marsh. 332. 
 
 (190) See Hapbimi v. Atdd, 5 Cranch, 262. See also the opinion 
 of SPENCER, J. in JValcrs v. Travis, 9 Johns. Rep. 464, 465. See 
 also, Chinn v. Hcale, 1 Munf. 63. M'ConneWs Heirs v. Ditnla})'s 
 Dev. Hardin, 41. 
 
 (*304)
 
 OF A CONTRACT. oq^ 
 
 vendor can seldom set up against a purchaser's claim, 
 where the purchaser chooses* to accept an under-lease ; 
 for an assignee of a lease almost invariably covenants to 
 indemnify his vendor from the rent and covenants in the 
 (*)lease, and from these covenants he cannot of course 
 discharge himself by an assignment, any more than by an 
 under-lease. 
 
 So it has been determined by Lord Redesdale, that 
 where, at the time of the contract, the purchaser is fully 
 aware that the vendor cannot execute the agreement, and, 
 consequently, cannot enforce the performance of it ; there 
 the agreement must be presumed to have been executed 
 under a mistake, and the purchaser cannot insist upon a 
 performance as to the interest to which the vendor may 
 be actually entitled (/). 
 
 And in a case where a tenant for life, with a power of 
 leasjng for twenty-one years at a rack-rent, agreed to 
 execute a lease for twenty-one years, and a further lease 
 for twenty-one years at any time during his life, conse- 
 quently to execute a lease for twenty-one years, whatever 
 might be the increased value of the property at the time 
 the lease should be granted ; Lord Redesdale considered 
 it a contract to act in fraud of the power, and that the 
 lessee was not entitled to a specific performance. To 
 obviate this objection, the lessee offered to take a renewed 
 lease for twenty-one years, if the lessor should so long 
 live ; but Lord Redesdale thought that this was one of 
 those cases where the plaintiff had no right thus to 
 qualify the contract he insisted upon : there was nothing 
 in the case to show that satisfaction in the form of 
 damages was not an adequate remedy for him. If he 
 had been put into a situation from which he could not 
 extricate himself, the defendant might be called on to 
 make the best title in his power, but nothing could be 
 
 (/) Lawrenson v. Butler, 1 Scho. & Lef. 13 ; see Moitlock v. Buller, 
 19 Ves. jun. 292. 
 
 (*305)
 
 358 OF THE PARTIAL EXECUTION OF A CONTRACT 
 
 more mischievous than to permit a person who knows 
 (*)that another has only a limited power, to enter into a 
 contract with that other person, which, if executed, would 
 be a fraud on the power, and when that was objected to, 
 to say, " I will take the best you can give me." A 
 court of equity ought to say, to persons coming before 
 it in such a way, " make the best of your case with a 
 jury"(m)(191). 
 
 It should be observed that there was another point in 
 the above cause, and the decree w"as pronounced after 
 considerable doubts. It seems difficult to reconcile the 
 opinion expressed by Lord Redesdale with the current of 
 authorities. It was not a necessary consequence of the 
 contract that the lease agreed to be granted would be a 
 fraud on the power, and the purchaser w-as willing to 
 take the interest which the seller was enabled to grant 
 without risk to himself or injury to the remainder-men. 
 
 If in a case of this nature, the purchaser, on the faith 
 of the agreement, put himself in a situation from which 
 he cannot extricate himself, and is therefore willing to 
 forego a part of his agreement, that is a circumstance to 
 induce a court of equity to give relief. Thus, in a case 
 before Lord Thurlow, the incumbent of a living had, 
 with full knowledge of the title, contracted with the 
 tenant in tail, in remainder after a life estate, for the pur- 
 chase of the . advowson, and on the faith of that agree- 
 ment had built a much better house than he would 
 otherwise have done ; the tenant for life would not join 
 in suffering a recovery, and consequently a good title could 
 not be made. Lord Thurlow held, that as the purchaser 
 had, upon the faith of the contract, built a good house 
 on the glebe, he ought to have the utmost the vendor 
 could give him; and therefore directed the vendor to 
 
 (m) Harnet v. Yielding, 2 Scho. & Lef. 549 ; vide supra, p. 209. 
 
 (191) See Graham v. Hendren, 6 Munf. 183. 
 (*306)
 
 OF DEFECTS IN THE QUALITY OF THE ESTATE. OQQ 
 
 {*)convey a base fee, by levying a fine with a covenant to 
 suffer a recovery whenever he should be enabled to do so 
 by the death of the tenant for life(n). 
 
 If the vendor has granted a lease of the estate which 
 is void by force of a statute, the Court will not, on the 
 request of the purchaser, consider the lease as valid, and 
 allow him a compensation in respect of it(o). 
 
 SECTION II. 
 
 Of Defects in the Quality of the Estate. 
 
 In most cases on this head, the rule " caveat emptor'''' 
 applies, and therefore, although there be defects in the 
 estate, yet, if they are patent, the purchaser can have no 
 
 relief(j9X192). 
 
 (ji) Lord Bollingbroke's case, cited 1 Scho. & Lef. 19, n. (a). 
 (o) Morris v. Preston, 7 Yes. jun. 647. 
 
 (p) See the introductory Chapter ; and see Lowndes v. Lane, 2 Cox, 
 363. 
 
 (192) The maxim caveat emptor will not be applied against a purcha- 
 ser, where there has been fraud or misrepresentation on the part of the 
 vendor. Pringle v. Samuel., 1 Litt. 46. See Sherwood v. Salmon, 5 
 Day, 439. Consistent with this principle, are the decisions in Bostwick 
 V. Lewis, 1 Day, 33, 250., and in JVorton v. Hathatvarj, 1 Day, 255. 
 note d. These were actions at law. But in Sliericood v. Salmon, 2 
 Day, 128, which was also an action at law, (See S. C. ut supra) the 
 principle laid down in the text, was fully recognized. The rule caveat 
 emptor does not apply to sales by a master, because he is considered as 
 the agent of the parties. Tnnno v. Fliidd, 1 M'Cord, 122. 
 
 Imposition and fraud upon the purchaser by any wilful misrepresen- 
 tation or concealment, takes the case cut of the general rule, and enti- 
 tles him to be redressed in equity, in addition to and beyond the cov- 
 
 voi.. I. 47 (*307)
 
 g^Q OF DEFECTS IN THE QUALITY 
 
 Thus, where a meadow was sold without any notice of 
 a footway round it, and also one across it, which of course 
 lessened its value, Lord Rosslyn decreed a specific per- 
 formance with costs, as he could wo^, he said, help the 
 
 enants in the deed. The cases of Bumpus v. Platner, 1 J. Ch. R. 
 213 ; Abbot v. Allen, 2 ib. 519 ; Johnson v. Geer, ib. 546 ; Chester- 
 man V. Gardner, 5 ib. 29 ; and Governeiir v. Ehiiendorf, ib. 79; are 
 authorities for this : and also for the point, that a grantee, to whom pos- 
 session has been delivered under covenants of title and warranty, can 
 have no relief in equity against his grantor for a return of purchase-mo- 
 ney or security on account of a defect or failure of title : because he 
 has secured himself by covenant ; and he has an adequate remedy at 
 law. If he has taken no covenants, and the title fails, he will be with- 
 out remedy in equity, as well as at law, if the contract were fair and 
 there be no fraud in the case. 
 
 The late case of Deniston et al, assignees v. Morris et al, assignees, 
 2 Edw. Ch. R. 27. was thus : the defendants sold an estate to one Sand- 
 ford with promises of title and a warranty. The latter entered into pos- 
 session and made improvements in buildings, &c. : and then defen- 
 dants would only give him a deed with covenants as to their own acts. 
 They represented the title as good ; and engaged that they would not 
 transfer the mortgage he was to give for the purchase-money ; so' that 
 if the title failed the same should be restored. Sandford sold his inte- 
 rest to Dickey ; and one Jackson sued Dickey and recovered having a 
 paramount title. Dickey also was obliged to pay the mortgage ; the 
 defendants having contrary to their promise transferred it. Dickey 
 failed ; and the complainants as his assignees sued this bill alleging that 
 the defendants had funds sufficient in their hands. The Vice Chancellor 
 observed that, " the difficulty in the case is this ; that Sandford is not the 
 party complaining of the fraud ; nor, indeed has he been injured by it. 
 He sold the property without fraud and without covenants for an ade- 
 quate consideration. According to (he staten.ent of the transaction the 
 vendors became trustees of that part of the purchase-money, which was 
 secured by mortgage. An implied trust, at least, v/as created of the 
 purchase-money ; and such an one as this court is bound to protect and 
 preserve. — If then there be a trust fund and trustees of it ; for whose 
 benefit does it enure ? The title was to be made satisfactory to Sand- 
 ford and his asstg-»*. xV loss resulted in the failure of the title ; and this 
 loss has been borne by Dickey ; and he or those standing in his place, 
 are the persons entitled to the benefit of it. Consequently, the demur- 
 rers which had been filed were overruled.
 
 OF THE ESTATE. 
 
 371 
 
 purchaser who did not choose to inquire{q). It was not a 
 latent defect. Lord Manners has said, that he believed 
 the bar was not very well satisfied with the decision, 
 although, as he observed, the purchaser was undoubtedly 
 extremely negligent not to look at the estate before he 
 purchased it(?'). 
 
 So a description, that the land was uncommonly rich 
 water meadow, was held to be immaterial, although the 
 property was imperfectly watered. The Court thought 
 (*)that it would be straining the meaning of the words 
 /'uncommonly rich water meadow land," if it were not 
 confined to the quality of the land ; and in that sense it 
 professed to be nothing more than the loose opinion of 
 the auctioneer or vendor as to the obvious quality of the 
 land, upon which the vendee ought not to have placed, 
 and could not be considered to have placed, any re- 
 liance (5). 
 
 And here a case(^) may be introduced, where the sub- 
 ject of the contract was a house on the north side of the 
 river Thames, supposed to be in the county of Essex, but 
 which turned out to be in Kent ; a small part of which 
 county happens to be on the other side of the river. The 
 purchaser was told he would be made a churchwarden of 
 Greenwich, when his object was to be a freeholder of 
 Essex ; yet he was compelled to take the house. 
 
 This decision, however, seems to be opposed by a case 
 before Lord Talbot. An agreement was entered into for 
 the purchase of a house for a coffee-house. It was found 
 that a chimney could not be made convenient for a coffee- 
 house; but nevertheless, the vendor filed a bill against 
 the purchaser, to compel him to perform the agreement. 
 Lord Talbot dismissed the bill, merely because the tenant 
 
 (q) Oldfield V. Round, 5 Yes. jun. 608. 
 
 ()•) 1 Ball & Beatty, 250 ; and see Lcggc v. Crokcr, ib. 506. 
 
 (s) Scott r. Hanson, 1 Sim. 13. 
 
 (0 Shiilcv j\ Davic.^, in the Exrhcqucr, (J Vcs. jun. »i78. cited. 
 
 (*30S)
 
 3-72 ^^ DEFECTS IN THE QUALITY 
 
 would be obliged to take it for a purpose he did not 
 WB.nt(ii). 
 
 But it may be remarked, that it is no bar to a specific 
 performance, that the conveyance will not have the ope- 
 ration which the vendor thought it would. Thus where 
 a tenant for life of a copyhold purchased the reversion in 
 the hope of extinguishing contingent remainders, and 
 afterwards finding that the conveyance would not affect 
 the remainders, brought a bill to be relieved against the 
 (*)security which he had given for the purchase-money ; 
 the Court gave him his option either to pay the principal, 
 interest and costs, or to have his bill dismissed with 
 costs(a;). 
 
 So in a case where, under the legal construction of the 
 terms of an agreement for a lease, the option to determine 
 the lease was in the lessee only, and it was argued against 
 a specific performance, that this was contrary to the inten- 
 tion, the Master of the Rolls said that a specific perform- 
 ance of a written agreement cannot be denied because 
 the meaning of the parties does not appear(2/). 
 
 But where a vendor gives a false description of the 
 estate, the purchaser may at law rescind the contract(193). 
 As where before the Reform Act an estate was stated to 
 be but one mile from a borough town, and it turned out to 
 be between three and four, the contract was held to be 
 voidable by the purchaser(2). And the same rule must 
 
 (m) 1 Russ. & Myl. 128; 1 Ves. 307; and see 13 Ves. jun. 78. 
 
 (x) Mildmay v. Hungerford, 2 Vein. 243. 
 
 (j/) Price V. Dyer, MS., Rolls ; S. C. 17 Ves. jun. 366. 
 
 (c) Duke of Norfolk v. Worthy, 1 Camp. Ca. 337 ; vide supra, p. 
 
 42 ; and see Fenton v. Browne, 14 Ves. jun. 144 ; v. Christie, 1 
 
 Salk. 28, by Evans ; Trower v. Newcombe, 3 Mer. 704. 
 
 (193) See Sherivood v. Salmon, 6 Day, 439. S. C. at law. 2 Day, 
 128. See also, Bostwick v. Leivis, 1 Day, 33, 250. JVorton v. Hath- 
 away, 1 Day, 255. note rf. 
 (*309)
 
 OF THE ESTATE. gyg 
 
 prevail in equity where the misdescription, as in this case, 
 is not from the nature of it a subject of compensation. 
 
 So in a case where the estate was described to have 
 lately undergone a thorough repair, whereas it was in a 
 complete state of ruin, and ordered to be pulled down by 
 the district surveyor, the purchaser was allowed to rescind 
 the contract(a). And where the state of the repairs 
 was falsely represented by the seller, knowing that the 
 house had the dry-rot, without communicating that fact 
 to the purchaser, upon a bill filed by the seller, a specific 
 performance was decreed, with a compensation to the 
 purchaser(6). 
 
 (*)So where the purchaser of a leasehold house was 
 aware of the ruinous state of the premises, but no mention 
 was made at the sale by auction of a notice to repair given 
 to the vendor by the lessor, on the day before the sale, 
 under which the lessor re-entered and evicted the pur- 
 chaser, he (the purchaser) was permitted to recover the 
 deposit from the auctioneer, on the ground that in such 
 transactions good faith was most essential, and the vendor 
 or his agent was bound to communicate to the vendee, the 
 fact of such notice(c). 
 
 Again, where a person for whose life the property was 
 held, was described to be a very healthy gentleman, and 
 in another passage a healthy gentleman, and the sellers 
 had shortly before the sale insured the life at a sum ex- 
 ceeding the highest rate charged for a healthy life of the 
 same age, the bill of the sellers for a specific performance 
 was dismissed with costs((/). 
 
 But if the purchaser knew that the description was 
 
 (a) Loyes v. Rutherford, K. B. 16 May 1809. 
 
 (6) Grant v. Munt, Coop. 173. 
 
 (o) Stevens v. Adamson, 2 Stark. 422. 
 
 (d) Brealey v. Collins, 1 You. 317. 
 
 (*310)
 
 374 ^^ DEFECTS IN THE QUALITY 
 
 false, he cannot, it seems, take advantage of it either at 
 law or in equit}'(194). 
 
 Thus, in a case before Sir William Grant(e)5 where 
 an estate was described as being within a ring fence, it 
 appeared, that the estate was intersected by other lands, 
 and did not answer the description, but that the pur- 
 chaser knew the situation of the estate ; his Honor (after 
 expressing a doubt whether such an objection was a sub- 
 ject of compensation, as it was not certain that a precise 
 pecuniary value could be set upon the difference between 
 a farm compact in a ring fence, and one scattered and 
 dispersed with other land), said, that the purchaser was 
 clearly excluded from insisting upon that as an objection 
 to complete the contract. He saw the farm before he 
 (*)purchased ; he had lived in the neighborhood all his 
 life. This variance was the object of sense ; he must 
 have known whether the farm did lie in a ring fence or 
 not ; and upon the same ground, that the purchaser could 
 not get rid of the contract on account of the difference in 
 the description of the farm, his Honor determined he 
 could not be entitled to compensation. If a compensa- 
 tion was given to him, he would get a double allowance ; 
 for if he had knowledge that what he proposed to pur- 
 chase did not answer the description, it must be taken 
 that he bid so much the less. 
 
 This case, we observe, went a step farther than either 
 the case before the Court of Exchequer, or that before 
 Lord Rosslyn, in neither of which was there any warranty 
 
 (e) Dyer v. Hargrave, 10 Ves. jun. 506. 
 
 (144) A purchaser of land, being informed of defects in the vendor's 
 title, and agreeing, nevertheless, to pay interest on the purchase money, 
 from a certain day, shall not be relieved from the payment of it, on the 
 ground that he could not get possession of part of the land, which he 
 knew, at the time of entering into (he agreement, wa.s held by another 
 person. JMayo v. Perccll, 3 Munf. 2-13. 
 
 (*311)
 
 OF THE ESTATE. 
 
 375 
 
 or false description. But in this case it was expressly 
 stated, that the whole estate was within a ring fence ; 
 but the Master of the Rolls thought that circumstance 
 immaterial, as the purchaser knew the description was 
 false ; and his Honor appears to have grounded his deci- 
 sion on the doctrine, that even at law- a w arranty is not 
 binding where the defect is obvious, and put the cases of 
 a horse with a visible defect, and a house without a roof 
 or windows warranted as in perfect repair. 
 
 But where a particular description is given of the 
 estate, which turns out to be false, and the purchaser 
 cannot be proved to have had a distinct knowledge of 
 the actual state of the subject of the contract, he will be 
 entitled to a compensation, although he may be com- 
 pelled to perform the contract. 
 
 Thus, in the case before the Master of the Rolls, the 
 particular described the house as being in good repair, 
 and the farm as consisting of arable and marsh land, in 
 a high state of cultivation. It appeared, however, that 
 the house was not in good repair, and that the land was 
 not in a high state of cultivation. The judgment contains 
 (*)the facts of the case, and is highly satisfactory. His 
 Honor said, " These objections are such as a man may 
 have an indistinct knowledge of, and he may have some 
 apprehension that, in those respects, the premises do not 
 completely correspond with the description, and yet the 
 description may not be so completely destroyed as to pro- 
 duce any great difference in his offer. As to the marsh 
 land, it is very uncertain, whether, by any view, it was 
 possible for him to judge of that. It is stated by many 
 witnesses, that the season of the year was just at the 
 breaking of a frost, and represented that no man could, at 
 that time, say whether the land was well or ill cultivated. 
 So he may have seen some trifling defects in the house, 
 and might not intend to make the objection, if they turned 
 out to be nothing more than they appeared upon the sur- 
 
 (*312)
 
 gyg OF DEFECTS IN THE QUALITY 
 
 face. He might consider them too trivial, and not mean 
 to claim compensation for an objection so insignificant. 
 But afterwards, when he came to examine, according to 
 this evidence, he discovered that the house was materially 
 defective, and very much out of repair. Admitting that 
 he might, by minute examination, make that discovery, 
 he was not driven to that examination ; the other party 
 having taken upon him to make a representation : other- 
 wise he would be exonerated from the consequence of 
 that in every case where, by minute examination, the dis- 
 covery could be made. The purchaser is induced to make 
 a less accurate examination by the representation, which 
 he had a right to believe. This purchaser, therefore, is 
 entitled to compensation for the defects of the house, and 
 the cultivation of the marsh land." 
 
 But notwithstanding that the foregoing case has estab- 
 lished, that the repairs necessary to a house are a subject 
 of compensation, although the house is described to be in 
 good repair, yet his Honor seemed to admit, that if the 
 purchaser wanted possession of the house to live in at 
 (*)a given period, by which time the repairs could not be 
 completed, he ought not to be bound to complete the 
 contract(/J. 
 
 Where the defect is a latent one, and the purchaser 
 cannot by the greatest attention discover it, if the vendor 
 be aware of it, and do not acquaint the purchaser with 
 the fact, he may set aside the contract at law, although 
 he bought the estate with all faults(g) ; and equity will 
 not enforce a specific performance(^). 
 
 This was decided at law, by Lord Kenyon at nisi prius, 
 upon the sale of a ship. It was insisted, for the seller, 
 that the rule caveat emptor applied ; but Lord Kenyon 
 
 (/) Vide infra, ch. 8. 
 
 {g) Mellish V. Motteux, Peake's Ca. 116. 
 
 (h) Oldfield V. Round, 5 Ves. jun. 508. 
 
 (*313)
 
 OF THE ESTATE. 
 
 377 
 
 said, that there are certain moral duties, which philoso- 
 phers have called duties of imperfect obligation, such as 
 benevolence to the poor, and many others, which ccmrts 
 of law do not enforce. But in contracts of all kinds, it 
 is of the highest importance that courts of law should 
 compel the observance of honesty and good faith. This 
 was a latent defect, which the plaintiffs could not, by any 
 attention whatever, possibly discover ; and which the de- 
 fendants knowing of, ought to have disclosed to the plain- 
 tiffs. The terms to which the plaintiffs acceded, of taking 
 the ship with all faults, and without warranty, must be 
 understood to relate only to those faults which the plain- 
 tiffs could have discovered, or which the defendants were 
 unacquainted with. 
 
 In a late case(z), the same point arose before Lord 
 Ellenborough at nisi prius ; but ultimately it was not ne- 
 cessary to decide it. Lord Kenyon's decision was cited. 
 Lord Ellenborough said, that he could not subscribe to 
 (*)the doctrine of that case, although he felt the greatest 
 respect for the authority of the Judge by whom it was 
 decided. Where an article is sold ivith all faults, he 
 (Lord Ellenborough) thought it was quite immaterial how 
 many belonged to it within the knowledge of the seller, 
 unless he used some artifice to disguise them, and to prevent 
 their being discovered by the purchaser. The very object 
 of introducing such a stipulation is, to put the purchaser 
 on his guard, and to throw upon him the burthen of ex- 
 amining all faults, both secret and apparent. A man may 
 be possessed of a horse he knows to have many faults, 
 and wish to get rid of him, for whatever sum he would 
 fetch. He desires his servant to dispose of him ; and, 
 instead of giving a warranty of soundness, to sell him 
 
 (i) Baglehole v. Walters, 3 Camp. Ca. 154. See 1 Ball & Bealty, 
 615. Early v. Garrett, 9 Barn. & Cress. 928 ; 4 Man. & Ryl. 687, 
 S. C. 
 
 VOL. I. 48 (^au)
 
 3'73 OF DEFECTS IN THE QUALITY 
 
 with all faults. Having thus laboriously freed himself 
 
 from responsibility, is he to be liable, if it be afterwards 
 
 discovered that the horse was unsound ? Why did not 
 
 the purchaser examine him in the market when exposed 
 
 to sale ? By acceding to buy the horse with all faults, he 
 
 takes upon himself the risk of latent or secret faults, and 
 
 calculates accordingly the price which he gives. It would 
 
 be most inconvenient and unjust if men could not, by 
 
 using the strongest terms w^hich language affords, obviate 
 
 disputes concerning the quality of the goods which they 
 
 sell. In a contract such as this, his Lordship thought 
 
 there was no fraud, unless the seller, by positive means, 
 
 renders it impossible for the purchaser to detect latent 
 
 faults ; and he made no doubt, that this would be held as 
 
 law when the question should come to be deliberately 
 
 discussed in any court of justice. 
 
 In a still later case, upon the sale of a ship, the parti- 
 'cular stated, amongst other things, that the hull was nearly 
 as good as when launched. And after stating when she 
 was to be seen, added, " with all faults as they now lie." 
 Then followed an inventory of the stores, to which the 
 (*)following declaration was added, " the vessel and her 
 stores to be taken with all faults as they now lie, without 
 any allowance for weight, length, quality, or any defect 
 whatsoever. '^'^ The ship was quite unseaworthy. She be- 
 longed to underwriters to whom she had been abandon- 
 ed. The agents for the sale must have known her defects, 
 and she was kept constantly afloat, so that her defects could 
 not be discovered. The person who framed the particu- 
 lar had not examined the vessel (A;) (195). Mansfield, C. J. 
 said that these words were very large, to exclude the 
 buyer from calling upon the seller for any defect in the 
 thing sold, but if the seller was guilty of any positive 
 
 (k) Schneider v. Heath, 3 Camp. Ca. 506. 
 
 (195) See D^jev v. Lewis, 7 Mass. Rep. 284. 
 (*315)
 
 OF THE ESTATE. ^-70 
 
 iraud in the sale, these words will not protect him. There 
 might be such fraud either in a false representation, or in 
 using means to conceal such defect. He thought the 
 particular was evidence here by way of representation, 
 that states the hull to be nearly as good as when launched, 
 and that the vessel required a most trifling outfit. Now, 
 was this true or false ? If false, it was a fraud, which 
 vitiates the contract. What was the fact ? The hull was 
 worm-eaten, the keel \yas broken, and the ship could not 
 be rendered seaworthy without a most expensive outfit. 
 The agent says, that he framed this particular without 
 knowing any thing of the matter. But it signifies nothing 
 whether a man represents a thing to be different from 
 what he knows it to be, or whether he makes a repre- 
 sentation which he does not know at the time to be true 
 or false, if, in point of fact, it turns out to be false. But, 
 besides this, it appears here that means were taken 
 fraudulently to conceal the defects in the ship's bottom. 
 These must have been known to the captain, who was to 
 be considered the agent of the owners, and he evidently, 
 (*)to prevent their being discovered by persons disposed to 
 bid for her, removed her from the ways where she lay 
 dry, and kept her afloat in the dock till the sale was over. 
 Therefore, consistently with the decided cases upon this 
 subject, the learned Judge was of opinion, that the pur- 
 chaser was entitled to recover back his deposit. 
 
 In a case which occurred a few nnionths before, upon 
 the sale of a ship, where the Court held that, in point of 
 fact, there was no fraud, Mr. Justice Heath said, that the 
 meaning of selling " with all faults" is, that the purchaser 
 shall make use of his eyes and understanding to discover 
 what faults there are. He admitted that the vendor 
 was not to make use of any fraud or j)ractice to conceal 
 faults. The learned Judge adhered to the doctrine of 
 Lord Ellenborough, above stated, without any difficulty. 
 Mr. Justice Chambrc held, there must be evidence of 
 
 (*316)
 
 330 ^^ DEFECTS IN THE QUALITY 
 
 fraud to enable the Court to depart from the written 
 agreement. Mr. Justice Gibbs agreed with Lord Ellen- 
 borough's doctrine. Even if there had been a represen- 
 tation it would not have availed. He held, that if a man 
 brought him a horse, and made any representaion what- 
 ever of his quality and soundness, and afterwards they 
 agreed in writing for the purchase of the horse, that 
 shortened and corrected the representations, and whatso- 
 ever terms were not contained in the contract would not 
 bind the seller. But the learned Judge agreed that 
 fraud would not be done away by the contract, and he 
 mentioned the case of a sale of a house, where the seller 
 being conscious of a defect in a main wall, plastered it up 
 and papered it over, and it was held that as the seller had 
 expressly concealed it, the purchaser might recover(/). 
 (*)As the law now stands, unless there be actual fraud, 
 the written contract cannot be avoided (I). 
 
 But the ground and basis of an action in a case of this 
 nature, for recovery of a deposit, where the contract is in 
 fieri ; or of damages, where the contract is actually exe- 
 cuted, is the scienter ; and, therefore, if the vendor was 
 not aware of the defect, he will not be answerable for it. 
 Nor will trifling defects be a sufficient foundation for such 
 an action. 
 
 Thus, in a case(m) where a purchaser brought an ac- 
 tion against a vendor, to recover damages for having sold 
 him a house, knowing it had the dry-rot ; it appeared, 
 that the house was situated in a clayey soil, and that the 
 floor lay near the ground, by which some of the timbers 
 had rotted ; but the vendor was not aware of the defects, 
 and the purchaser was nonsuited. Lord Kenyon said, 
 
 (/) Pickering «. Dowson, 4 Taunt. 779. See Jones t'. Bowden, ih. 
 847 ; Shepherd v. Kain, 3 Barn. & Aid. 240. 
 (ni) Bowles v. Atkinson, N. P, MS. 
 
 (I) As to concealment of defects of title, see posL 
 (*317) 
 
 I
 
 OF THE ESTATE. ggj 
 
 the circumstances that had been proved in this case might 
 be described by a word that was used by one of the 
 witnesses ; they were mere bagatelles. If these small 
 circumstances were to be the foundation of an action, 
 every house that was sold would produce an action. If 
 a broken pane of glass that might be found in a garret 
 window, perhaps, had not been described by the seller, it 
 would be ground of an action. If he was to consider 
 himself as a witness in the cause, he could say he had 
 met with, something of this kind, and he never thought 
 himself imposed upon, because now and then some rotten 
 boards and rotten joists might be found about a house. 
 Besides, there was no imposition, no mala fides in this 
 case. 
 
 Although the purchaser might, with proper precaution, 
 (*)have discovered the defect ; yet if, during the treaty, 
 the vendor industriously conceal the fact, equity will not 
 assist him. 
 
 Thus, upon a suit for a specific performance, the de- 
 fence was, that the estate was represented to the defend- 
 ant as clearing a net value of 90/. per annum, and no 
 notice was taken to him of the necessary repair of a wall 
 to protect the estate from the river Thames, which would 
 be an out-going of 50/. per annum. And it appearing, 
 upon evidence, that there had been an industrious con- 
 cealment of the circumstances of the wall during the 
 treaty, the Lord Chancellor dismissed the bill, but with- 
 out costs(w). 
 
 And here a case may be mentioned, where an estate 
 appeared to be subject to a right of entry to dig for mines ; 
 the purchaser did not object to the title on this ground, 
 but insisted upon a specific performance with a compen- 
 sation, which was accordingly decreed(o). 
 
 (h) Shirley v. Slratton, 1 Bro. C. C. 140. 
 (o) Seaman r. Vawdrey, 16 Ves. jun. 390. 
 
 (*318)
 
 5g2 O^ DEFECTS IIS THE QUANTITY 
 
 SECTION III. 
 Of Defects in the Quantity of the Estate. 
 
 If a purchaser of an estate thinks he has purchased 
 bona fide a part which the vendor thinks he has not sold, 
 that is a ground to set aside the contract, that neither 
 party may be damaged ; because it is impossible to say, 
 one shall be forced to give that price for part only which 
 he intended to give for the whole ; or that the other shall 
 be obliged to sell the whole for what he intended to be 
 the price of part only(j3). Upon the other hand, if both 
 (*)understood the whole was to be conveyed, it must be 
 conveyed. But again, if neither understood so, if the 
 buyer did not imagine he was buying any more than the 
 seller imagined he was selling the part in question, then 
 a pretence to have the whole conveyed is as contrary to 
 good faith on his side, as a refusal to sell would be in 
 the other case(5^)(197). 
 
 If an estate be sold at so much per acre, and there is 
 a deficiency in the number conveyed, the purchaser will 
 be entitled to a compensation, although the estate was 
 estimated at that number in an old survey(r)(198). 
 
 {f) See 13 Ves. jun. 427 ; and see Higginson v. Clowes, 15 Ves. 
 jun. 616, stated, as to this point, supra, p. 38. 
 
 iq) Per Lord Thurlow. See 1 Ves. jun. 211 ; and see 6 Ves. jun. 
 339. 
 
 (r) Sir Cloudesley Shovel v. Bogan, 2 Eq. Ca. Abr. 688, pi. I. 
 
 (197) See JVelson v. Matthews, 2 Hen. & Munf. 164. 
 
 (198) See Quesnel v. Woodlief, 2 Hen. & Munf. 173. in note. Jol- 
 life V. Hite, 1 Call, 301. JVelsony. Carrington,4. Munf. 332. Carter 
 V. Campbell, Gilmer, 159. 
 
 (-*319)
 
 OF THE ESTATE. gng 
 
 The rule is the same, though the land is neither bought 
 nor sold professedly by the acre ; the presumption is, that 
 in iixing the price, regard was had on both sides to the 
 quantity which both suppose the estate to consist of. 
 The demand of the vendor, and the offer of the purchaser, 
 are supposed to be influenced in an equal degree by the 
 quantity, which both believe to be the subject of their 
 bargain. The general rule therefore is, that where a 
 misrepresentation is made as to the quantity, though 
 innocently, the right of the purchaser is to have what the 
 vendor can give, with an abatement out of the purchase- 
 money, for so much as the quantity falls short of the 
 representation(5)(199). 
 
 But where the lands in a conveyance are mentioned to 
 contain so many acres by estimation, or the words " more 
 or less" are added, if there be a small portion more than 
 the quantity , the vendor cannot recover it ; and if there 
 be a sYnall quantity less, the purchaser cannot obtain any 
 compensation in respect of the deficiency(^). Indeed, 
 (*)a case is said to have been decided, where a man con- 
 veyed his land by the quantity of one hundred acres, 
 were it more or less, and it was not above sixty acres ; 
 but the purchaser had no relief, because it was his own 
 laches(M)(200). 
 
 (s) Hill V. Buckley, 17 Ves. 394, ^)cr Sir "William Grant. 
 
 {t) Twyford v. Warcup, Finch, 310. See Marquis of Townshend 
 V. Stangroom, 6 Ves. jun. 328 ; Rushworlh's case, Clay. 46 ; Neale v. 
 Parkin, 1 Esp. Ca. 229. 
 
 (tt) Anon. 2 Freem. 106. 
 
 (199) See Waters v. Travis, 9 Johns. Rep. 465. on appeal. And 
 where there is a great deficiency in the quantity of land, the purchaser 
 is entitled to have the contract rescinded in toio. Glover v. Smith, 1 
 Des. 433. See also, Peay v. Briggs, 2 Rep. Con. Ct. 100. 
 
 (200) In Quesnel v. Woodlief, 2 Hen. & Munf. 173, 174; in note, 
 the court say, that the words " more or less," inserted in a deed, " should 
 he restricted to a reasonable or usual allowance for small errors in sur- 
 
 (*320)
 
 384 ^^ DEFECTS IN THE QUANTITY 
 
 That however was the case of an actual conveyance. 
 Where the contract rests in fieri, the general opinion has 
 
 veys, and for variations in instruments." See Smith v. Evans, 6 Binn. 
 102. Grantland v. Wight, 2 Munf. 179. Jollife v. Hite, 1 Call, 301. 
 JVfann ^ Toles v. Pearson, 2 Johns. Rep. 37. Snow v. Chapman, 1 
 Root, 528. Howes v. Barker, 3 Johns. Rep. 606. Powell v. Clark, 
 5 Mass. Rep. 355. /fot«e v. Bass, 2 Mass. Rep. 380. Jackson v. 
 Barringer, 15 Johns. Rep. 471. Jackson v. Defendorf, 1 Caines' 
 Rep. 493. Thomas v. Perry, 1 Peters' Rep. 49, 58. Dayne v. King, 
 1 Yeates, 322. ^oar v. M'Cormick, 1 Serg. & Rawle, 166. F/ee/ v. 
 Haiokins, 6 Munf. 188. Pringle v. Witten^s Exrs. 1 Bay, 259. Gray 
 V. Handkinson, 1 Bay, 278. Wainwright v. Read, 1 Des. 573. Jones' 
 Dev. V. Carter, 4 Hen. & Munf. 184. //i<// v. Cunningham'' s Exr. 1 
 Munf. 330, 335, 336. 
 
 "In a conveyance of land by deed, in which the land is cer- 
 tainly bounded, it is very immaterial, whether any or what quantity is 
 expressed :_for the description by the boundaries is conclusive. And 
 when the quantity is mentioned in addition to a description of the boun- 
 daries, without any express cevenant that the land contains that quan- 
 tity, the whole must be considered as mere description. (Per Parsons, 
 C. J. 5 Mass. 155 ; S. P. in Large v. Penn, 6 S. & R. 488.) In the 
 latter case cited in which the plaintiff sued the defendant for breach of 
 covenant, it appeared that the deed described the land as " containing 
 two acres and three quarters of an acre, being the lot mentioned in a 
 plan or map of land (number 18, R. M. Penn,) and which, upon a par- 
 tition and division of the said W. M., was, inter alia, allotted and as- 
 signed unto the said R. and M. Penn, her heirs and assigns forever." 
 And then followed a special covenant of warranty in the usual form. 
 The question being whether there was a covenant that the quantity of 
 land should amount to two acres and three quarters ? The court held, 
 that there was not. It is the boundaries to which the grantee must look ; 
 he has a right to all the land within them : and the quantity is intro- 
 duced, not by way of covenant, but of description. 
 
 So, in Davis et al. v. Rainsford, 17 Mass. R. 207, Wilde, J. in de- 
 livering the opinion of the court said — " no rule of law can be more 
 firmly established, than that whenever, in the description of land con- 
 veyed by deed, known monuments are referred to as boundaries, they 
 must govern ; although neither courses, nor distances, nor the com- 
 puted contents, correspond with such boundaries. But this fundamen- 
 tal rule in the construction of deeds is not inflexible, but like other rules 
 of law, it must sometimes yield to exceptions. The reason why mon- 
 uments are to govern the courses and distances in a deed, is that the
 
 OF THE ESTATE. oor 
 
 been that the purchaser, if the quantity he considerably 
 less than it was stated, will be entitled to an abatement, 
 
 former are less liable to mistakes. When the reason ol' the rule ceases, 
 the rule is not to be applied. Whoa lines are laid down on a map or 
 plan, and are referred to in a deed, the courses, distances, and other 
 particulars appearing on such plan, are to be as much regarded as the 
 true description of the land, as they would be, if expressly recited in the 
 deed. This is a familiar rule of construction in all those cases, where- 
 in no other description is given in the title deeds, than the number of 
 the lot on a surveyor's plan of a township -or other large tract of land. 
 
 The land in question was conveyed to the plaintiffs at the time they 
 were about erecting a store ; and it was stipulated in the deed, that the 
 southwardly wall of the store should be placed exactly on the line last 
 mentioned in the description of the land conveyed. The store was ac- 
 cordingly erected, and the southwardly wall was placed as it now 
 stands, in conformity to the admeasurement, and to the plan, no objec- 
 tion being then made to its position by the grantor. This wall, when 
 built, was a monument ; and it was referred to in the deed, although it 
 was not at that time erected. This part of the case is similar to the 
 case of Blakepeace v. Bancroft, 12 Mass. 469, excepting the wall in 
 that case did not exactly coincide with the line, as described in the deed ; 
 and in the case before us it does. The case last cited was thus — " a 
 certain piece of land in C. measuring on W. street 22| feet, and keep-/ 
 ing the same width 70 feet back to another way, with all the privileges 
 and appurtenances to the said lot belonging, meaning to convey thereby 
 the same lot which was conveyed to the said grantor by M'Neil, by his 
 deed dated, &c., including one half of the brick wall mentioned in the 
 deed last aforesaid." The plaintiff sued for breach of covenant in re- 
 spect to one half the brick wall, with the land under the same ; there 
 being no question as to the residue. It appeared at the trial, whic^ was 
 had before Jackson, J., that one Porter was seized of this lot, and also 
 of another lot adjoining. He conveyed this to R., and the other to one 
 W., who conveyed to S. Then R. and S. agreed to exchange lots and 
 by direction of the latter the former conveyed to Neil. At the time of 
 the conveyance by P., he owned a third lot on which was a brick house; 
 and the deed to W. included one half of the wall of that house. R. in- 
 lending to build on the lot he received from S. in exchange says in the 
 deed to Neil " I do also convey to said Neil the one half of a brick 
 wall that I hereby engage to erect on the adjoining lot now owned by 
 S., which the said S. is this day to convey to me." S. conveyed to R. 
 one half the wall of the house aforesaid; and R. undertaking to convey 
 to the said appointee of S. one half of the wall ^hich he was to build. 
 VOL. I. 49
 
 gog OF DEFECTS IN THE QUANTITY 
 
 although the agreement contain the words more or lesSy 
 or hy estimation(x). 
 
 (x) Hill V. Buckley, 17 Ves. 394. 
 
 But the wall of the house afterwards built by R. was built wholly on 
 R.'s lot contrary to his intention, which was to place one half of the 
 wall adjoining to Neil on his lot. The latter conveyed to defendant re- 
 ferring to R.'s deed and "including the one half of the brick wall men- 
 tioned in said deed." The defendant having conveyed his title to the 
 plaintiff; and the Court held that Neil was seized of thg lot, so as to 
 include one half of the wall, which R. built for his use, and did of course 
 convey the same to the defendant, who became seized until he parted 
 with his title to the plaintiff. "Whether this seizin was an indefeasible 
 one or not, was immaterial m that action. The monument set up after 
 the delivery of the deed, will conclude the grantor, even though it should 
 not agree with the lines specified in the deed. 
 
 And if a survey is referred to in a deed^ that is to be regarded, though 
 the boundaries mentioned in the deed might exclude the land included 
 in the survey. Limt v. Holland, 14 ib. 149. 
 
 If land is bounded on a road, the land over which the road runs is 
 excluded. Alden v. JMitrdock, 13 ib. So^ to the hank of a stream, it 
 excludes tlie stream. Hatch v. Dwight <§• al. 17 ib. 298. But if the 
 boundary is by a river, it extends to the thread of the river, unless pre- 
 vious grants negative this construction. 14 ib. 14.9. 
 
 In Crosby v. Parker, (4 Mass. 110.) where the point in dispute was 
 stated by Chief Justice Parsons in delivering the opinion of the Court 
 thus. " E. & A. Jefts were once seized in fee of the several parcels of 
 land mentioned in the case, one of which was claimed by Wilson, ano- 
 ther by the demandant, and a third by J. Jefts, by separate deeds from 
 E. & A., and under J. Jefts the tenant claims : And to find tlie issue 
 in the cause it was necessary to ascertain the north-east corner of the 
 parcel of land conveyed to the demandant by the deed of the said E. & 
 A. dated 1S05. This deed places the north-east corner at a stake and 
 stones by Wilson's land on a certain highway. The next inquiry then 
 is, where was Wilson's land ? He had before purchased his parcel of 
 the same grantors by a deed duly executed, and the stake and stones 
 standing by this land of Wilson's is agreed. The tenant insists that 
 this stake and stones is the north-east corner of the demandant's land ; 
 and if it is, the verdict is right. The same Wilson had contracted with 
 J. Jefts, the brother and agent of the grantors, and had paid him for half 
 an acre of land to the southward of his first purchase, and adjoining on 
 the same highway, at the south-easterly corner of which was a stake and
 
 OF THE ESTATE. 007 
 
 But ill a case where the estate was stated to contain 
 by estimation forty-one acres, he the same more or less ; 
 
 stones by the same highway, which would be the north-east corner of 
 Crosby's land, if it bounded northwardly on the half acre, which he con- 
 tends that it did : And if this last stake and stones is the north-east 
 corner of Crosby's land, the verdict is wrong. The question therefore 
 is reduced to this, whether Crosby's land adjoining northwardly on Wil- 
 son's lirst purchase, of which he had a conveyance, or on the half acre, 
 of which he had no conveyance. 
 
 Wilson, after his bargain with J. Jefts, occupied the half acre for two 
 years, as he would occupy his own land, including the time when Cros- 
 by's deed was executed, but he did not claim the land and would have 
 informed any inquirer that he had no title to it, but had contracted with 
 J. Jefts for one. In 1806, he applied to the owners, E. & A. Jefts for 
 a title, but they refusing to give him one, he abandoned the occupation. 
 It further appears that Crosby's deed conveys to him his land, loith all 
 the buildings thereon, and if he is bounded on Wilson's first purchase, 
 there will be only a barn on his land ; but if he is bounded on the half 
 acre, there will be a house also included. 
 
 For the tenant it appears, that neither the grantor nor Parker had any 
 knowledge that J. Jefts had bargained with Wilson for the half acre : 
 and as to the expression of " all the buildings," it was found that the 
 grantors purchased all these parcels of S. P. by a deed conveying them 
 with all the buildings thereon, when in fact there were no buildings there- 
 on, they having been erected afterwards : and that all the land, to which 
 Wilson had any title on record, was his first purchase. The verdict is 
 right, because Crosby's is northwardly on Wilson's land, and Wilson's 
 first purchase is all the land that he in fact owned ; and all the land, of 
 which he had any title on record, by which the tenant could ascertain the 
 boundaries, and all the land, which the grantors of Crosby, who were also 
 the grantors of Wilson, could contemplate as Wilson's land. And if 
 the first purchase of Wilson is not a boundary of Crosby's land, then 
 there will be an half acre between Crosby and Wilson, the property of 
 the grantors, not conveyed, and Crosby's northern boundary will be on 
 other land of the grantors. Judgment on the verdict. 
 
 In Worthington et al. v. Hyllyer, 4 Mass. R. 197, where the estate in- 
 tended to be conveyed included several particulars, which were neces- 
 sary to ascertain the identity of the estate ; held, that nothing could 
 pass by the conveyance, except what agreed to every particular in the 
 description ; but every deed ought to be construed, if it can, that the 
 intent of the parties may prevail, and not be defeated. If the de- 
 scription in a conveyance be so uncertain, that it cannot be known wluit
 
 388 OF DEFECTS IN THE QUANTITY 
 
 and upon an admeasurement, the quantity proved to be 
 only between thirty-five and thirty-six acres ; and the 
 purchaser claimed an abatement ; the Master of the Rolls 
 decided against the claim. His Honor said, that the 
 effect of the words " more or less" added to the state- 
 ment of quantity had never been yet absolutely fixed by 
 decision ; being considered sometimes as intending to 
 cover only a small difference the one w-ay or the other ; 
 
 estate was intended, the conveyance is void. In a deed-poll where 
 there is a doubt, the construction must be against the grantor. But a 
 description of land by a false reference must be rejected, if the land is 
 sufficiently ascertained without. 
 
 Parsons, C. J. said. — It seems to be a general rule, that when the 
 description of the estate" intended to be conveyed includes several par- 
 ticulars, all of which are necessary to ascertain the estate to be conveyed, 
 no estate will pass, except such as will agree to every particular of the 
 description. Thus if a man grant all the land in his own occupation in 
 the town of W., no estate can pass, except what is in his own occupa- 
 tion, and is also situate in that town. 
 
 But if the description be sufficient to ascertain the estate intended to 
 be conveyed, although the estate will not agree to some of the particu- 
 lars in the description, yet it shall pass by the conveyance, that the in- 
 tent of the parties may be effected. Thus if a man convey his house in 
 D., which was formerly R. C.'s, when it was not R. C.'s ; but T. C.'s, 
 the house in D. shall pass, if the grantor had but one house in D., be- 
 cause by the description of his house in D. the estate intended to be 
 conveyed is sufficiently ascertained. 
 
 In the case before the court, the mortgagor has described, as the es- 
 tate to be conveyed, all that his farm of land in TV., on which he then 
 lived, containing 100 acres, with his divelling house and bam thereon 
 standing. This is sufficient to ascertain the estate to be conveyed ; and 
 if no other particulars were inserted, there could be no doubt. But he 
 adds that the farm, on which he lived, was the lot JYo. 17, in the first 
 division oj land there and included within certain limits mentioned. 
 The limits of this lot are truly described, but in fact the farm, on which 
 be lived, was not No. 17, but a different parcel of land. By the rule 
 then this particular of the description is to be rejected, because without 
 it the description is sufficiently certain ; and because if it be essential, 
 the deed will be void. Indeed rather than the deed should be void, a 
 construction ought to be adopted, on which both the farm and the lot 
 should be conveyed.
 
 OF THE ESTATE. oog 
 
 sometimes as leaving the quantity altogether uncertain, 
 and throwing upon the purchaser the necessity of satisfy- 
 ing himself with regard to it. In this instance, the 
 description was rendered still more loose by the addition 
 of the words " by estimation." She estimated extent of 
 ground frequently proves quite different from its contents 
 by actual admeasurement. It cannot be contended that 
 the terms " estimated" and " measured" have the same 
 meaning. If a man was told that a piece of land was 
 never measured, but was estimated to contain forty-one 
 acres, would that representation be falsified by showing 
 (*)that, when measured, it did not contain the specified 
 number of acresV The only contradiction to that propo- 
 sition would be, that it had not been estimated to contain 
 so much(i/)(201). 
 
 (y) Winch v. Winchester, 1 Ves. & Beam. 375. 
 
 (201) See Mlson v. Matthews, 2 Hen. & Munf. 164. It was de- 
 cided in Carter v. Campbell, in the Court of Appeals in Virginia, 
 (Gilm. R. 159.) that where a sale is by the acre, the right of ascertain- 
 ing the quantity by a survey, exists, whether expressly reserved or not ; 
 and if no time be limited for making the election to survey, it may be 
 done at any time before the whole business is closed. But where the 
 articles of agreement have been carried into effect, by a conveyance 
 from the vendor, and bond for the purchase money from the vendee, 
 without a survey, there, in general., the contract is considered as closed. 
 But there are cases, which are exceptions. For instance, where the 
 real ditfers so much from the estimated quantity of land, as to make it 
 evident, either that both parties were under a misapprehension, or one 
 of them guilty of a gross fraud. (Per Tilghman, C. J. in Bailey v. 
 Snyder, 13 S. & R. 161.) In Smith r. Evans, 6 Binn. 102, where 
 the sale was decided to be for a sum in gross, although the price of 
 twelve shillings per acre was mentioned, the articles had been carried into 
 execution, by a conveyance from the vendor, and bond and mortgage 
 from the vendee ; " a circumstance of great weight with me, said the 
 Chief Justice, in forming an opinion in that case." In the case last 
 cited from S. & R., that circumstance did not exist; so that the con- 
 tract was to be judged of only by the articles of agreement. Accord- 
 ingly, it was there held to be a sale by the acre. It is proper to observe, 
 
 (*321)
 
 390 ^^ DEFECTS IN THE QUANTITY 
 
 The case of Day v. Finn(e), however, seems a consi- 
 derable authority, that at least the words more or less 
 ought only to clear a small deficiency where the contract 
 rests in fieri. There, in ejectment, the plaintiff declared 
 on a lease for years of a house, and thirty acres of land 
 in D. ; and that /. S. did let to him the said messuage and 
 thirty acres, by the name of his house in B.., and ten 
 acres of land there, sive plus sive minus : it was moved 
 in arrest of judgment ; because that thirty acres cannot 
 pass by the name of ten acres, sive plus sive minus ; and 
 so the plaintiff had not conveyed to him thirty acres, for 
 when ten acres arc leased to him sive plus sive minus, 
 these words ought to have a reasonable construction to 
 pass a reasonable quantity, either more or less, and not 
 twenty or thirty acres more. Yelverton agreed, for the 
 word ten acres, sive plus sive minus, ought to be intended 
 of a reasonable quantity, m5re or less, by a quarter of an 
 acre, or two or three at most ; but if it be three acres 
 less than ten, the lessee must be contented with it. Quod 
 Fenner and Crook concesserunt, and judgment was 
 stayed. 
 
 And upon a motion in Portman v. Mill(«) it appeared 
 
 (s) Owen, 133 ; and see the cases cited above, 
 (a) 2 Russ. 570. 
 
 however, that the land was not certainly described ; and the land was 
 sold at a price named per acre. 
 
 A conveyance of a certian number of acres more or less imply, that 
 the boundaries are fixed, and may contain more or less. They show 
 an understanding of the parties that the boundaries should not be affect- 
 ed by a surplus or deficiency. Thus, in Glen et al. v. Glen, 4 S. & 
 R. 488, the deed stated that the grantor conveyed 200 acres more or 
 less. The parties afterwards had it surveyed ; the survey agreed, 
 except an allowance of six per cent, for roads, &c. It turned out how- 
 ever, after the decease of the parties, that the tract was in fact surplus, 
 about 13 acres ; and held, clearly, that the heirs could not recover a 
 consideration for the excess : it not being so great as to show an essen- 
 tial mistake.
 
 OF THE ESTATE. 
 
 391 
 
 that the lands were described as containing, by estima- 
 tion 349 acres, or thereabouts, be the same more or less, 
 and the agreement stipulated that the parties should not 
 be answerable for any excess or deficiency in the quantity 
 of the premises, but that the premises should be taken by 
 the purchaser at the quantity, whether more or less ; and 
 (*)the actual number of statute acres was less by 100 acres 
 than the number stated in the contract. Lord Eldon said, 
 that as to this stipulation, he never could agree that such 
 a clause (if there were nothing else in the case) would 
 cover so large a deficiency in the number of acres as was 
 alleged to exist there. 
 
 But however the rule may be finally settled, yet a seller 
 knowing the true quantity, would not be allowed to prac- 
 tice a fraud, by stating a false quantity, with the addition 
 of the words " more or less," or the like(6)(202). 
 
 If an estate be represented as containing a given 
 quantity, although not professedly sold by the acre, the 
 circumstance that the purchaser was intimately acquainted 
 with the estate, would not necessarily imply knowledge 
 of its exact contents ; while a particular statement of the 
 quantity would naturally convey the notion of actual ad- 
 measurement : and therefore the Court would not be 
 warranted in inferring that the purchaser knew the real 
 quantity (c). For, if the purchaser did know the real 
 quantity, of course he could not claim any allowance for 
 the deficiency. 
 
 In a late case(d)j the agreement was to sell an estate 
 " containing the several quantities after mentioned, that is 
 to say, by the plan drawn by Mr. F. in 1792;" the 
 agreement then proceeded to state the numbers and par- 
 
 (6) See Duke of Norfolk v. Worthy, 1 Camp. Ca. 337 ; supra, p. 
 38, and 1 Ves. & Beam. 377. 
 
 (c) Winch V. Winchester, 1 Ves. & Beam. 375. 
 
 (d) Cell V. Watson, 16 Nov. 1825, MS. 
 
 (202) See JVelsony. Matthews, 2 Hen. & Munf. 164. 
 
 (*322)
 
 392 *^F DEFECTS IN THE QUANTITY 
 
 ticular quantities of each close, and then proceeded to 
 add, " containing altogether about 101^ 3'. 29^." There 
 was a deficiency of 2=^. in two closes which together were 
 stated to contain 8^. V. 4''. It was held that the pur- 
 chaser was entitled to. an abatement, as the quantity of 
 each close was particularly specified. 
 
 (*)The principle upon which an abatement in these cases 
 is made, is, to place the parties in the situation in which 
 they would have stood, if there had been no misrepre- 
 sentation. Therefore, where a man purchased a wood, 
 which was, by mistake, represented to contain nearly 
 twenty-six acres more than it did, but the purchaser was, 
 in the course of the negotiation, furnished with the value 
 of the woods qua wood, so that he obtained the right 
 quantity of wood but not of soil, the abatement was 
 decreed to be only so much as soil covered with wood 
 would be worth, after deducting the value of the wood(e). 
 
 Where lands are showai to a purchaser as part of his 
 purchase, he will be entitled to them, although expressly 
 excepted in his conveyance by name, provided he did not 
 know them by that name(/j(203). 
 
 So if a man purchase an estate by a particular, and in 
 the conveyance part of the land is left out, equity will 
 relieve him(^) ; but it must be clear that he did pur- 
 chase by the particular, because it is not a writing within 
 the statute of frauds ; and, therefore, unless that be the 
 case, or the agreement can be otherwise proved, the 
 Court cannot relieve(/i). 
 
 (e) Hill r. Buckley, 17 Ves. jun. 394. 
 
 (/) Oxwick V. Brockett, 1 Eq. Ca. Abr. 355, pi. 6. 
 
 (g-) Prec. Cha. 307, arguendo ; and see Nelson v. Nelson, Nels. 
 Cha. Rep. 7. 
 
 {h) Cass 11. Waterhouse, Prec. Cha. 29. See Clinan v. Cooke, 1 
 Scho. & Lef. 22 ; and see ch. 3, sufva; and 2 Dow. 301. 
 
 (203) See opinion of PARSONS, Ch. J. in Worthington v. Hyll- 
 yer, 4 Mass. Rep. 205. 
 (*323)
 
 OF THE ESTATE. qqo 
 
 On the other hand, the Court will cqiia]ly relieve 
 a vendor, where more land has passed than was con- 
 tracted for ; although in an early caseCi)(I) this relief 
 (*)was denied ; because the defendant was a purchaser 
 upon valuable consideration. But it is now clear, that if 
 land be expressly conveyed, or pass by general words, 
 \^ hich was not mentioned in the particular by which the 
 purchase was made, or was not mtended to be conveyed, 
 the purchaser will be decreed to re-convey it(/c). 
 
 And where a purchaser took a conveyance of an estate 
 from his own instructions, he was held not to be entitled 
 to lands answering the general description in the adver- 
 tisements of sale, but which were not mcluded in his 
 conveyance, nor in a more particular description from 
 which he prepared his instructions(/). 
 
 To come to a right conclusion on this branch of our 
 subject, we must be informed that an acre does not always 
 contain the same superficial quantity of land. The word 
 acre at first denoted, not a determined quantity of land, 
 but any open ground or field. It afterwards signified a 
 measured portion of land, but the quantity varied, and was 
 not fixed until the statute(I) de terris mensura7idis(tn), 
 according to which an acre contains one hundred and 
 sixty square perches ; so that every acre is a superficies 
 
 (i) Clifford v. Laughton, Toth. 83. 
 
 (k) Tyler v. Beversham, Rep. teinjy. Finch, 80 ; 2 Ch. Ca. 195. 
 See Gibson v. Smith, Barnard. Ch. Ca. 491. 
 
 (/) Calvcrley v. Williams, 1 Ves. jun. 210. 
 
 (m) 33 Edsv. I. ; and see 24 H. VIII. c. 4 ; 2 Inst 737 ; Co. Litt. 
 G9 a ; Spehn. Gloss, v. Acra, particata, lerr(K,ptrlica, pes forcsice, rnila 
 terne. Cow. Interp. v. Acre. 
 
 (I) Probably the defendant had purchased without notice from tho 
 first purchaser. 
 
 (I) It was formerly holdcn not to be a statute, but only an ordi- 
 nance. Stowe's case, Cro. Jac. 603 ; but this has since been overrul- 
 ed. Rex V. Everard, 1 Lord Raym. 638. 
 
 VOL. I. 50 (*324)
 
 ^Q^ OF DEFECTS IN THE QUANTITY 
 
 of forty perches long, and four broad ; or in that propor- 
 tion, be the length or breadth more or less. The length 
 of the perch was, previously to the statute of Edward, 
 fixed at five yards and a half, or sixteen feet and a half, 
 (^)by the statute called compositio ulnarum et periica- 
 rum(n), and the act of Edward must of course be constru- 
 ed with reference to this standard. Lord Kenyoo seems 
 to have thought it impossible to contend, that a custom 
 should prevail that a less space of ground than an acre 
 should be called an acre(o) ; but in several places the 
 perch is measured with rods of different lengths, and 
 notwithstanding Lord Kenyon's dictum, consuetudo loci 
 est observanda(p), so that a greater or less space of ground 
 than a statute acre may, in compliance with the custom of 
 the place where the land lies, be called an acre. In some 
 places the perch is measure by a rod of twenty-four feet, 
 in some by one of twenty {eet(q), and in others by one of 
 sixteen feet(r). And we are now to inquire in what 
 cases the custom of the country in this respect shall or 
 shall not prevail. 
 
 In adversary writs the number of acres are accounted 
 according to the statute measure(5), but in fines, and 
 common recoveries, which are had by agreement and 
 consent of parties, the acres of land are according to the 
 customary and usual measure of the country, and not ac- 
 cording to the statute(^). 
 
 (n) See 4 Inst. 274. 
 
 (o) Noble V. Durell, 3 T. Rep. 271 ; and sec Hockin r. Cooko, 4 
 T. Rep. 314 ; Master of St. Cross v. Lord Howard de Walden, 6 T. 
 Rep. 338. 
 
 (j9) 6 Rep. 67. a. 
 
 {q) Crompt. on Courts, 222, who cites a case in the Exchequer, re- 
 lated to him by one of the Barons ; and also 47 E. III. [fo. 18 a, p!. 
 35;] and see Barksdale v. Morgan, 4 Mod. 186. 
 
 (r) Co. Litt. 3 b. See Dalt. c. 112, s. 25. 
 
 (s) Andrew's case, Cro. Eliz. 476, cited. 
 
 (/) Sir John Bruyn's case, 6 Co. 67 a, cited ; Waddy r. Newton, 
 
 (*326)
 
 OF THE ESTATE. 
 
 395 
 
 So, which is more to our present purpose, where a mau 
 (*)agrees to convej(i*), or actually conve_ys(.i') any given 
 mumber of acres of land, which are known by estimations 
 or limits, there the acres shall be taken according to the 
 estimation of the country where the land lies, be they 
 more or less than the measure limited by the statute ; for 
 they pass as they are there known, and not according to 
 the measure by statute. 
 
 But if a man possessed of a close containing twenty 
 acres of land by estimation, which is not eighteen, grant 
 ten acres of the same land to another, there the grantee 
 shall have ten acres according to the measure fixed by 
 the statute, because the acres of such a close are not 
 known by parcels, or metes and bounds, and so this case 
 differs from the one immediately preceding it(y). And 
 it is said, that if one sells land, and is obliged that it 
 contain twenty acres, the acres shall be taken according 
 to the law, and not according to the custom of the 
 country(2). 
 
 But the law upon this subject is altered by an Act of 
 the 5th of the late King, intituled, " An Act for ascer- 
 taining and establishing Uniformity of Weights and 
 Measures." After providing that(rt) the straight line or 
 distance between the centres of the two points in the 
 gold studs in the straight brass rod now in the custody 
 of the clerk of the House of Commons, whereon the 
 words and figures, " standard yard, 1760," are engraved, 
 
 8 Mod. 276. Sec Floyd v. Bethill, 1 Roll. Rep. 420, pi. 8 ; and see 
 Treswallen r. Penhules, 2 Rolle's Rep. 66 ; 12 Vin. 240. 
 
 (u) Some V. Taylor, Cro. Eliz. 665. 
 
 (.r) 47 E. III. 18 a, pi. 35 ; 6 Co. 67 a ; Morgan v. Tedcastle, 
 Poph. 55 ; Floyd r. Bethill, 1 Rolle's Rep. 420, pi. 8 ; Andrew's case, 
 Cro. Eliz. 476, cited. 
 
 (y) Morgan i\ Tcdcastle, Poph- 55. 
 
 (2) Wing V. Earlc, Cro. Eliz. 267. 
 
 (a) S. 1, c. 74. 
 
 (*326)
 
 39g OF DEFECTS IN THE QUANTITY 
 
 shall be the origmal and genuine standard of that measure 
 of length or lineal extension called a yard ; and that all 
 (*)measures of length shall be taken in parts or multiples, 
 or certain proportions of the said standard yard ; and that 
 one third part of the said standard yard shall be a foot, 
 and the twelfth part of such foot shall be an inch ; cmd 
 that the pole or perch in length shall contain Jive such 
 yards and a half, it enacts, that(6) all superficial measure 
 shall be computed and ascertained by the said standard 
 yard, or by certain parts, multiples or proportions thereof; 
 and that the rood of land shall ^contain 1,210 square 
 yaixis according to the said standard yard ; and that the 
 acre of land shall contain 4,840 such square yards, being 
 160 square perches, poles or rods; and that(c) from and 
 after the 1st day of May 1825, all contracts, bargains, 
 sales and dealings which shall be made or had within 
 any part of the United Kingdom of Great Britain and 
 Ireland, for any goods, wares, merchandise, or other thing 
 to be sold, delivered, done or agreed for hy measure, 
 where no special agreement shall be made to the contrary, 
 shall be deemed, taken and construed to be made and 
 had according to the standard measures ascertained by 
 this Act ; and in all cases where any special agreement 
 shall be made with reference to any measure established 
 by local custom, the ratio or proportion which every such 
 local measure shall bear to any of the said standard mea- 
 sures shall he expressed, declared and specified in such 
 agreement, or otherwise such agreement shall be null and 
 void : and it is then enacted that(f/) the several statutes, 
 ordinances, and acts and parts of the several statutes, 
 ordinances and acts thereinafter mentioned and specified, 
 so far as the same relate to the ascertaining or establish- 
 ing any standards of measures, or to the establishing or 
 
 (6) S. 2. 
 (c) S. 15. 
 
 id) S. 23, sec 6 Geo. IV. c. 12. 
 (*327)
 
 OF THE ESTATE. gg-y 
 
 (*)recognizing certain differences between measures of 
 the same denomination, shall from and after the 1st day of 
 May 1825, be repealed; and the enumeration includes 
 the statutes or ordinances before mentioned in this sec- 
 tion, which are therefore repealed. 
 
 This Act determines what now in law is the superficial 
 quantity of an acre of land. A question will no doubt 
 arise, whether s. 15^ applies to contracts for land under 
 the words " or other thing to be sold," or whether those 
 words are not to be construed ejusdem generis with the 
 preceding words, which are " goods, wares, merchandise." 
 At all events, the section applies only to sales hy measure. 
 But wherever a purchaser is under a contract entitled to 
 statute acres, the measure will be regulated by this Act. 
 
 (*328)
 
 [ 398 ] 
 
 (*)CHAPTER Vll. 
 
 OF THE TITLE WHICH A PURCHASER MAY REQUIRE. 
 
 I. A PURCHASER before the late Act of 3 & 4 W. 4, 
 c. 27, had a right to require a title commencing at least 
 sixty years previously to the time of his purchase ; be- 
 cause the old statute of limitations(«)(I) could not in 
 a shorter period confer a title. In Paine v. Meller(6), 
 Lord Eldon was of opinion, that an abstract not going 
 farther back than forty-three years, was a serious objec- 
 tion to the title(205). 
 
 (a) 32 Hen. VIII. c. 2 ; 21 Jac. I. c. 1. Vide post; and see Barn- 
 well V. Harris, 1 Taunt. 430. 
 
 (6) 6 Ves. jun. 349. See Robinson v. Elliott, 1 Russ. 599. 
 
 (I) The Courts however were so anxious to protect a long posses- 
 sion, that no plaintiff was entitled to so little favor as a plaintiff in a writ 
 of right. See Charlwood v. Morgan, Baylis v. Manning, 1 New Rep. 
 64, 233 ; Maidment v. Jukes, 2 New. Rep. 429. 
 
 (205) In Sergeant V. Ballard, 9 Pick. 261, the plaintiffs claimed a 
 right of dockage upon the land of the defendant. It was claimed as a 
 praedial service due from the estate of the defendant to the estate of the 
 plaintiffs ; and said the court, Putnam J. " it is analogous to the r%ht of 
 watering cattle, conducting water, a right of way, of pasturage, of digging 
 for metals, &c. and a great many other rights and easements, which may 
 be acquired by grant, and by other means in the land of others." Tire 
 jury at the trial were instructed, that in order to establish the plaintiff's 
 claim, it was not necessary for them to produce any deed, or to prove that 
 any ever existed ; the rule being, " that twenty years' occupation alone 
 is sufficient to ground a presumption that the occupation began in virtue 
 of some compact between the parties ; but it is to be applied only to 
 cases where the legal qualities of such right are proved to exist. One 
 is, that the occupation must be uninterrupted by the owner of the land ; 
 another is, that the occupation must be really adverse, and not by anv 
 
 (*329)
 
 OF THE TITLE WHICH A PURCHASER MAY REQUIRE. qOQ 
 
 Even sixty years were not sometimes sufficient. For 
 instance, if it might reasonably be presumed from the 
 
 permission, license, or indulgence of the owner." One ground for a 
 new trial assigned was because the instructions were erroneous ; but 
 the court considered the instructions of the chief Justice upon the point 
 of occupation, very proper. Putnam, J. observed, " We cannot sup- 
 pose (as was contended for the plaintiffs), that the mere use of the ease- 
 ment for twenty years is conclusive of the right ; nor do we think that 
 was the meaning of Story, J. in Tyler v. Vvilkinson, 4 Mason, 402, — 
 His words were 'by our laws, upon principles of public convenience, 
 the term of twenty years of exclusive uninterrupted enjoyment has been 
 held a conclusive presumption of a grant of right.' He could not have 
 intended an enjoyment which had been by the favor and at the will of 
 the owner for twenty years. The chief Justice further instructed the ju- 
 ry, ' that the plaintiffs could not join the period of the occupation of Gov- 
 ernor Hutchinson, before the revolution, to their own subsequeiH; occu- 
 pation, because the occupation was interrupted from 1774 to 1780.' 
 Such an interruption would be what the civilians call a usurpation ; 
 Ayl. Civ. Law. 321, 324 ; which is a discontinuance given to prescrip- 
 tion, in point of time and possession, ' for upon a commencement of usur- 
 pation, prescription is destroyed or annihilated, and must begin again ;' 
 which usurpation may be by " an extra judicial denunciation or claim 
 of right," and especially " by a contestation of suit." 
 
 But the time which an ancestor possessed may be extended and al- 
 lowed to his heirs ; and the same rule applies to buyers and sellers. 
 " Inter venditorem quoque et emptorem conjungi iempora.'' Just, instin. 
 lib. 2. tit. 6. s. 8. All that would be required by the possessor would 
 be, evidence that the possession had been legally continued from one 
 owner to another. Jt was therefore a correct instruction which was 
 given by the chief Justice, that the plaintiffs could not lap on Governor 
 Hutchinson's time to Parson's, because of the interruption from 1774 to 
 1780. But the plaintiffs might avail themselves of the continued pos- 
 session of their ancestors. And if Hutchinson acquired the right be- 
 fore he went away in 1774, it would have passed with the estate in vir- 
 tue of the confiscation and the deed of the commonwealth to Sergeant 
 and Parsons. But the difficulty of the case on the part of the plaintiffs, 
 is as to the character of the occupation, whether it were adverse, or 
 by favor. The plaintiffs have the burden of proof. If they leave it 
 doubtful they are not to prevail. They must not only prove the using 
 for twenty years, which is here the ' tempus longuni,' but that it was con- 
 tinned, uninterrupted and adverse, that is, under a claim of right ; the 
 owner acquiescing. Dedications of ways do not always rest upon
 
 4Q0 OF THE TITLE WHICH 
 
 contents of the abstract, that estates-tail were subsisting, 
 the purchaser might demand the production of the prior 
 title. The statutes of limitation could not in such case 
 be relied on ; remainder-men having had distinct and 
 successive rights, upon which at least the statute of 
 James could only begin to operate as they fell into pos- 
 session. It might have been thought in the common case 
 of a man claiming by descent, a reversion expectant upon 
 particular estates created by his ancestor's will, that a 
 writ of right would not lie after sixty years from his 
 ancestor's death, although the particular estates had but 
 (*)recently determined. But however this might be, the 
 
 length of possession, for in 3 Bing. R. 447, the question left to the jury 
 was whether the thorough-fare had been used with the consent of the 
 owner of the soil, and not for what length of time. A parol dedication 
 is good, and generally the only one made ; and although there is no 
 grantee to take, it vests in the public, and is different from ordinary 
 grants, and is construed upon principles to suit the nature of the case ; 
 they are similar to the case where a man lays out a street or highway 
 over his own land, where there is no grantee of the easement, yet it takes 
 effect as a grant to the public use, who have the right of passage through, 
 not the absolute property. White v. The City of Cincinnati, 6 Peter's 
 R. 432. So, in the case of Wyman v. The Mayor of N. Y. 11 Wend. 
 R. 486, where a vendor sold lots according to the city map on which his 
 estate was laid down as divided into blocks, streets, &c. held : that he 
 impliedly granted the right or privilege to the purchaser of having such 
 streets, &c. : — and where the conveyance itself bounds the lot upon a 
 a street of a particular width, or as lying within a certain distance from 
 the street, the dimensions and locality of which are described with suffi- 
 cient certainty in the deed, and the grantor is the owner of the land up- 
 on which the supposed street is located, the grant of the privilege of 
 such a street may well be implied. A similar implication arises when 
 a conveyance is made with reference to a map or town plot on which 
 the streets are laid down. In the case of Lewis street, 2 "Wend. R. 472, 
 "the principle was established, that in the city of New- York the purcha- 
 sers of lots bounded upon streets not yet opened, are not subject to any 
 assessment for opening such streets, to pay the owner for the value of 
 the land, the presumption being that an enhanced price was paid for the 
 lots, in consideration of being upon u street or streets. S. P. 8 Wend. 
 
 85. 
 (*330)
 
 A PURCHASER MAY REQUIRE. 
 
 401 
 
 objection still remained, for an ejectment might have 
 been brought at any time within twenty years after the 
 estate fell into possession. 
 
 So, if an abstract begin with a conveyance by a person 
 who is stated to be heir at law of any person, the pur- 
 chaser may require proof of the ancestor's intestacy. 
 
 To pursue this point is, in this place, impracticable, so 
 numerous are the cases in which counsel are comj^elied 
 to require the production of the prior title. 
 
 But the law is altogether altered by the 3 & 4 WilL 4. 
 c. 27(c), which limits the general time to recover to 
 twenty years, with a saving of ten years for persons un- 
 der disability, but not to exceed in any case forty years, 
 although the ten years are not expired. The Act allows 
 no further time for successive disabilities, and makes the 
 bar of the tenant, in fact, extend to all whom he might 
 have barred. This will ultimately tend to shorten ab- 
 stracts considerably, and in the result forty years will pro- 
 bably be considered the proper period instead of sixty for 
 an abstract to extend over, but still cases must frequently 
 arise where it will be necessary to call for an earlier title. 
 As fines are abolished, a short bar, as formerly, cannot now 
 be made. 
 
 Of course a purchaser may, after notice of a defect in 
 the title, by his conduct wave the objection ; but Lord 
 Eldon has determined, that where an abstract is laid 
 before counsel, who approves the title, his approbation is 
 not to be taken as against the person consulting him, as 
 a waver of all reasonable objections. The Court cannot 
 compel a specific performance upon the ground of an 
 opinion which it may think wrong. The purchaser may 
 either take an opinion from some other counsel, or the 
 (*)one first consulted may correct his error in a further 
 
 (c) See posi, for a full abstract of the Act. 
 
 vol.. r. 51 (*331)
 
 AQ2 OF THE TITLE WHICH 
 
 opinion(^). This, it may be observed, was always the 
 understanding of the Profession. 
 
 The right to a good title is a right not growing out 
 of the agreement between the parties, but which is given 
 by law. A purchaser, therefore, may wave his right, by 
 concluding an agreement after he has full notice that he 
 is not to expect a title beyond a limited period. That 
 may be matter of notice and not of contract(e). And the 
 vendor may of course stipulate that the purchaser shall 
 accept the title such as it is(jr). 
 
 II. Under this head we must consider the much agi- 
 tated point, whether a purchaser of a leasehold estate 
 can insist upon the production of the lessor's title. 
 
 The general practice of the Profession is to call for an 
 abstract of the title, but a lessee is not often able to com- 
 ply with the demand. At the time the lease is granted, 
 the title is rarely investigated, or even thought of; and 
 a lessor cannot be advised voluntarily to submit his title 
 to the examination of strangers. As my Lord Eldon 
 remarked(^), the Newcastle case is a good lesson upon 
 this subject of production. The corporation produced 
 their charters to satisfy curiosity ; some persons got hold 
 of them, and the consequence was, the corporation lost 
 7,000/. a year. 
 
 The numerous cases in the books where lessees, and 
 persons claiming under them, have been evicted on ac- 
 count of defects in the titles of their lessors, strongly 
 evince the danger of taking a lease without investigating 
 the landlord's title. No title can be depended upon, 
 (*)however long the estate may have been in the same 
 
 (d) Deverell v. Lord Bolton, 18 Ves. 505. 
 
 (e) See 3 Mer. 64. 
 
 (/) Wilmot V. Wilkinson, 6 Bam. & Cress. 506. 
 
 (g) 8 Ves. jun. 141. 
 
 (*332)
 
 A PURCHASER MAY REQUIRE. ^Qg 
 
 family. There may be a defect in a settlement, or the 
 person in possession may have a partial estate only, with 
 a power of leasing. All the leases of the Pulteney estate 
 were set aside on account of a power of leasing not 
 having been duly pursued : nor is this the only estate of 
 which the leases have been vacated. Besides, without 
 an abstract of the title, a purchaser cannot even ascertain 
 that the lessor had not mortgaged the estate previously 
 to granting the lease, in which case (as against the mort- 
 gagee) the lessee, and consequently any purchaser from 
 him, would be a mere tenant at will(A) ; and his only 
 remedy would be either to redeem the mortgage, or to 
 bring an action on the lessor's covenant for quiet enjoy- 
 ment. 
 
 A lessee is a purchaser pro tcmto, and it should therefore 
 seem that he is not only entitled to call upon the lessor 
 for an inspection of his title, but would not meet with 
 any favor if he neglected to do so ; for no one's misfor- 
 tune is so much slighted by the courts as his, who buys 
 a thing in the realty, and does not look into the title(z). 
 In Keech v. HallCjJ, Lord Mansfield appears to have 
 taken it for granted, that a lessee has a right to examine 
 the title deeds. The case of Gwillim v. Stone(A:), seems 
 to lean the other way, although there, the plaintiff ap- 
 pears to have mistaken his remedy, and the decision in 
 effect only was, that a man entering under an agreement 
 for a lease, before the lease is granted, cannot call upon 
 the other party to reimburse him his loss in case a title 
 cannot be made : although certainly Mr. Justice Law- 
 rence seems to have thought, that the mere agreement to 
 
 (/O Keech v. Hall, Dougl. 21. 
 
 (i) See Roswell v. Vaughan, Cro. Jac. 196 ; and Lysncy v. Selby, 
 2 Lord Raym. 1118. 
 
 (j) Dougl. 21 ; and sec Waring u. Mackreth, Forr. Ex. Rep. 129 ; 
 11 Ves. jun. 343. 
 
 ik) 3 Taunt. 433.
 
 404 0^ THE TITLE WHICH 
 
 (*)grant the lease did not warrant an implied agreement to 
 make a good title, or to deliver an abstract. 
 
 In a later case(/) Gibbs, C. J. thought that at nisiprius, 
 that the defendant was not bound to deliver an abstract 
 under a bare agreement to grant a lease for twenty-one 
 years ; and Mr. Justice Heath, after instancing the case 
 of leases for three lives, granted some years since in 
 Devonshire^ by a Duchess of Bolton, who was mere 
 tenant for life, but assumed to have a power of leasing, 
 and received fines to the amount of 29,000/. observed, 
 that nevertheless it had never yet been heard of, that a 
 tenant for life was asked to show his title to lease. The 
 instance quoted shows the strong necessity of the title 
 being produced ; and there isaio instance in which a man 
 acting under good advice, accepts a title from a tenant for 
 life, without the production of the settlement under which 
 he claims. However, in this case, the Court considered 
 that the cause originated in a dispute between the two 
 attornies, and the Judges expressed their desire not to 
 decide the point, without affording an opportunity for 
 a review of their judgment. But in the later case of 
 Roper V. Coombes(??i), where the agreement was to grant 
 a lease for a large premium, the contract was considered 
 to be for the sale of a lease, and as the intended lessor 
 had no right to grant it, the other party was allowed to 
 recover back his deposit. 
 
 In the last equity case on this subject, where the 
 agreement was made to take a lease for twenty-one years 
 at rack-rent, the Master of the Rolls decided, that the 
 intended lessor, loho was plaintiff', could not enforce a 
 specific performance, without producing the original 
 lessor's tit\e(n). But it still remains undecided, 
 
 (/) Temple v. Brown, 6 Taunt. 60. 
 (m) 6 Barn. & Cress. 634. 
 
 (n) Fildes v. Hooker, 2 Mer. 424 ; Lord Ossulston v. Deverell, 26 
 May 1818, MS. 
 (*333)
 
 A PURCHASER MAY REQUIRE. j^q^ 
 
 (*)vvhether a lessee can, as plaintiff, call for the original 
 lessor's title. 
 
 The argument generally urged against a purchaser's 
 right to call for the lessor's title is, that a lessee is seldom 
 able to produce the title ; and, therefore, on the ground of 
 convenience, a purchaser must be presumed to know this 
 circumstance, and to buy, subject to an implied condition, 
 not to call for the freehold title. But the answer to this 
 is, that the lessor's title is now generally required ; and 
 where the vendor cannot produce the title, it is usual to 
 state the fact in the particular or agreement. Therefore, 
 where that statement is omitted, it is fair to presume that 
 the vendor is in possession of the title. There can be no 
 inconvenience in establishing the purchaser's right to 
 call for the freehold title ; for the vendor has it in his 
 power to prevent the claim by an express stipulation. 
 
 Of course, if a vendor of a leasehold estate be unable 
 to procure the lessor's title, equity cannot assist the pur- 
 chasor(o), unless he will dispense with the production of 
 the title to the freehold. 
 
 The question under consideration arose in a recent 
 case in the Court of Chancery ; and Lord Eldon avoided 
 deciding the abstract point, although he certainly appears 
 to have thought that the better rule would be, that the 
 purchaser is, in the absence of an express stipulation to 
 the contrary, entitled to the production of the lessor's 
 title. He intimated, however, that if ever it should be 
 his duty to decide a question so important, he would call 
 in the Judges to his assistance. 
 
 The case before Lord Eldon has decided that^ the 
 vendor cannot demand a specific performance if the pur- 
 chaser can show that the title to the freehold is not good, 
 or that there are any incumbrances on it ; nor will equity 
 (*)afford its aid against the purchaser, where the nature 
 
 (o) Vide supra, p. 208. 
 
 (*334) (*33o)
 
 ^Qg OF THE TITLE WHICH 
 
 of the leasehold title is misrepresented. The facts were 
 these : the interest was described as fifty years, the resi- 
 due of a term free from incumbrances, whereas it appear- 
 ed that there were only sixteen years to come of the old 
 lease, granted by Sir Richard Grosvenor in 1722, and the 
 residue of the fifty years was granted by the trustees of 
 Lord Grosvenor in 1791, as a reversionary term for 
 thirty-four years. It appeared, that in 1785, the estate 
 in question was charged with jointures, mortgages, &c. 
 Lord Eldon held, that in these cases a purchaser should 
 at least know accurately what he is buying ; that in the 
 case before him, the title produced did not correspond 
 with that contracted for ; and that there was a wide dif- 
 ference between the residue of a lease that has existed 
 for a century with possession under it, and a small residue 
 of an old term, and a reversionary lease granted by per- 
 sons whose title from the first lessor is not deduced. He 
 also thought that he was bound to look at the incumbran- 
 ces, and therefore dismissed the bill, but without costs(p). 
 But when it is stated that the property is held under two 
 leases at one rent for a stated term, it must be understood 
 that the leases are consecutive ones(^). 
 
 The general point was decided in favor of the pur- 
 chaser's right in the case of Purvis v. Rayer(r) in the 
 Exchequer. An agreement was entered into on the 
 (*)15th May 1819, between John Goldsborough Raven- 
 shaw (as the agent of Purvis) of the one part, and 
 
 (p) Whiter. Foljambe, 11 Ves. jun. 337; Deverell v. Lord Bolton, 
 18 Ves. 505 ; and see Radcliff v. Warrington, 12 Ves. jun. 326 ; Lady 
 Saltotn V. Philips, sittings after T. T. 1813, cor. Lord Ellenborough, 
 where a purchaser recovered his deposit, because the seller claimed his 
 lease subject to Lord Grosvenor's incumbrances, and had stated that 
 the lease was only subject to the ground-rent, although he had not 
 undertaken to produce the landlord's title. See 9 Price, 515. 
 
 (q) Sprattr. Jeftery, 10 Barn. & Cress. 249. 
 
 {r) 28 July 1821, MS.; S. C. 9 Price, 488. 
 
 (*336)
 
 A PURCHASER MAY REQUIRE. 
 
 407 
 
 William Rayer of the other part ; whereby Ravenshavv 
 agreed to sell, and Rayer agreed to purchase a house in 
 Bath, held for the remainder of a term of years under 
 the corporation of Bath and the late Richard Atwood, at 
 the sum of 1,500/. ; an abstract to be made and deliver- 
 ed by Purvis, and the assignment to be at the expense 
 of Rayer. The purchase-money to be paid on or before 
 Midsummer, when the deeds were to be signed. The 
 ground-rent and all outgoings to Midsummer to be paid 
 by Purvis, from whence the same were to be paid by 
 Rayer. The bill was filed by the seller, and the title 
 was referred to the Master, who reported that the plaintiff 
 could not make a good title to the said leasehold pre- 
 mises. The report was grounded on the non-production 
 of the lessor's title. The plaintiff excepted to the report. 
 The Chief Baron overruled the exception. His Lordship 
 observed that the question was, whether, when a man 
 sells a leasehold estate, he could compel the purchaser to 
 take it without showing him his title. White v. Foljambe 
 was the first case on this point. There was no case that 
 went the length of showing that a lessor is not bound to 
 show his title. This was a lease from a corporation ; and 
 the general rule is, that where a vendor offers any thing 
 for sale, the vendee is entitled to have the thing he buys 
 with a moral certainty that he has the thing he buys. If 
 a man sell an inheritance, he must show a title to the 
 inheritance : so if a life estate. Then what is the differ- 
 ence where a lease is sold ? It is said, however, that this 
 is an anomalous case ; but the law has not said so, nor 
 has it been so considered in any of the decided cases. 
 Then it is objected, that a lessor has not the means of 
 compelling the inspection of his lessor's title ; that is true, 
 but furnishes no ground for an exception. A lessee may 
 (*)insist^ on looking into his lessor's title, or that he should 
 produce it ; but if he omits to do 'so, is that any reason 
 why the vendee of a lease should be deprived of those 
 
 (*337)
 
 408 
 
 OF THE TITLE WHICH 
 
 advantao;es ? Another course is, to state in the adver- 
 tisement that you cannot show the title. Therefore, 
 though after the lease is granted the lessee cannot compel 
 the production of his lessor's title, there is no reason why 
 the vendee should be put to any risk. Then is there 
 a good title here; the lease is made in 1774; does the 
 length of time make the lease good ? Suppose it had 
 been made by a tenant for life ; a tenant for life might 
 live for forty-five years ; forty-five years possession would 
 not be good evidence of a title to the inheritance ; but 
 then it is said, this was a lease by a corporation. His 
 Lordship was of opinion that there might be circumstances 
 which might make an alteration ; but here there was no 
 act of ownership prior to 1774, no prior leases. A tenant 
 for life might have conveyed in fee to a corporation, but 
 on the death of the tenant for life, the estate would cease. 
 This case, therefore, did not differ from the case of a lease 
 from an individual. 
 
 If a purchaser of a leasehold estate had notice, at the 
 time he entered into the contract for purchase, of the 
 vendor's inability to produce the lessor's title, he would 
 not afterwards be allowed to insist on its production. 
 Wherever, therefore, a vendor of a leasehold estate has 
 not an abstract of the lessor's title, this circumstance 
 should be mentioned in the particulars of sale, if sold by 
 auction ; or in the agreement, if sold by private contract. 
 And if the purchaser agree to accept a proper assign- 
 ment, without requiring the lessor's title, he will at law 
 be compelled to pay the price, although the lessor's title 
 prove to be bad(5). And a purchaser of an estate 
 (*)held under a bishop's lease, cannot call for the lessor's 
 
 title(0- 
 
 It seems formerly to have been thought, that a plaintiff 
 
 (s) Spratt V. Jeffery, 10 J5arn. Cress. 249. 
 {t) Fane v. Spencer, 2 Mer. 430. 
 (*338)
 
 A PURt'IIASER MAY REQUlRtl aqq 
 
 in an ejectment ibr a leasehold estate, could not recover 
 unless the original lease and all the mesne assignments 
 were proved ; but this rule has been relaxed, and where 
 the possession had been uniform, the jury will be recom- 
 mended to presume any old assignnients which have been 
 ]ost(w). It cannot, however, be laid dovAn as a general 
 rule, that a purchaser of a leasehold estate can safely 
 accept the title where any of the mesne assignments have 
 been lost, although he might be able to recover in eject- 
 ment, if he actually did purchase. Every case of this 
 nature must depend upon its own particular circumstan- 
 ces(.r). 
 
 If the title deeds are lost, the seller must furnish the 
 purchaser with the means of showing what were the con- 
 tents of the deeds, and of proving that they were duly ex- 
 ecuted, even where the deeds are accidentally destroyed 
 by fire after the contract is made(j/). 
 
 With respect to the title to renewable leaseholds, great 
 difficulty constantly occurs. All public bodies who grant 
 renewable leases, require the old lease to be given up be- 
 fore they will grant a new one ; and when they once obtain 
 possession of a surrendered lease, they w'ill not part with it, 
 or permit a copy of it to be taken. When the lessee sells, 
 he produces an abstract of the subsisting lease and subse- 
 quent instruments. Now this is a title which it is impos- 
 sible to accept, however willing the purchaser may be, and 
 although he may have waved calling for the lessor's title. 
 Every lease i» stated to be granted in consideration of the 
 surrender of the former lease, and by means of this refer- 
 ence (*)the chain of title is kept up. The reference in the 
 last lease to the one immediately preceding, is notice of it 
 to the purchaser, and that again is notice of the one before 
 
 («) Earl V. Baxter, 2 Blackst. 1228. See 11 Ves. jiin. 350. 
 
 {x) Vide post. Hillary v. Waller. 
 
 iy) Bryant v. Bu.sk, 4 Rus3, ). 
 
 vol.. I.' 52 (*339)
 
 2^1 Q OF THE TITLE WHICH 
 
 that, and so on to the first lease. And if in any of these 
 
 leases the lessee is described as devisee under a will, or 
 
 there is any thing to lead the mind to a conclusion that 
 
 the lessee is not absolutely entitled, the purchaser will be 
 
 liable to the same equity as the lessee was subject to, 
 
 although he, the purchaser, had no other knowledge of 
 
 the fact, than the mention in the lease of the surrender 
 
 of the former lease, equity deeming that sufficient to lead 
 
 him to inquire into the title(2;). Harsh as this rule may 
 
 seem, it is quite consistent with the general principles of 
 
 equity, and is imperiously called for in this case, because 
 
 public bodies generally renew ^vith the person having 
 
 the legal estate, and seldom suffer any trusts to appear on 
 
 the lease, lest they should be implicated in the execution 
 
 of them. 
 
 Although a purchaser buys with full notice that a title 
 cannot be made without the consent of a third person, yet 
 it lies on the seller and not on the purchaser to obtain the 
 consent. It cannot be inferred that the seller only agreed 
 to part with his interest in the estate as far as he was able 
 to do so(a). 
 
 III. To enable equity to enforce a specific performance 
 against a purchaser, the title to the estate ought, like 
 Ca5sar's wife, to be free even from suspicion(6) ; for it 
 would be an extraordinary proceeding for a court of equity 
 to compel a purchaser to take an estate which it cannot 
 warrant to him(c). It hath, therefore, become a settled 
 and invariable rule, that a purchaser shall not be com- 
 pelled (*)to accept a doubtful title(c?)(206) ; neither will 
 
 (s) Coppin V. Fernyhough, 2 Bro. C. C. 291. 
 
 (a) Lloyd V. Crispe, 6 Taunt. 249 ; Mason v. Corder, 2 Marsh. 332 ; 
 7 Taunt. 9. 
 
 (6) See 2 Ves. 69. 
 
 (c) Heath v. Heath, 1 Bro. C. C. 147. 
 
 (d) Marlowt). Smith, 2 P. Wms. 198; Mitchel i-. Neale, 2 Yes. 
 
 (206) See Btithi v. O'Hear, 1 Des. 382. M'Comb v. Wright, 4 
 (*340)
 
 A PURCHASER MAY REQUIRE. Ki ^ 
 
 he be forced to take an equitable title(e) nor will a case 
 be directed to the Judges as to the title unless, the pur- 
 chaser be willing that it should(yj ; and even if a case 
 should be directed, and the Judges were to certify in 
 favor of the title, yet a specific performance would not 
 be decreed unless the Court itself were satisfied of the 
 equitable as well as the legal title of the vendor(^). And 
 although the Judges certify in favor of the title, and 
 there is no equitable objection to it, yet if the point of 
 law is doubtful, the purchaser may require another case 
 to be directed, which it seems will not be sent back 
 to the same court (A). If exceptions be taken to the 
 Master's report in favor of the title, and the Court think 
 the title a doubtful one, the bill may upon further direc- 
 tions be dismissed without either overruling or allowing 
 the exceptions(i). 
 
 And even the house of Lords, sitting as a court of 
 equity upon appeal, will not in all cases decide- the point, 
 but if they think it a doubtful one will discharge the 
 
 679 ; Shapland r. Smith, 1 Bio. C. C. 74 ; Cooper v. Denne, 4 Bro. 
 C. C. 80 ; 1 Ves. jun. 565, S. C. ; Crewe t'. Dicken, 4 Ves. jun. 97^ 
 Rose V. Calland, 5 Ves. jun. 186 ; Roake v. Kidd, ibid. 647 ; Wheate 
 V. Hall, 17 Ves. jun. 80; Sloper v. Fish, Rolls, 29 July 1813 ; 2 Ves'. 
 & Bea. 145 ; Jervoise v. Duke of Northuinberland, 1 Jac. & Walk. 
 659 ; Price r. Strauge, 6 Madd. 159. 
 
 (e) Cooper r. l^cime, nbi sup. ; and see 2 Ves. juu. 100 ; and infra. 
 
 (/) Roake v. Kidd, ubi sup. ; Sharp v. Ardcock, 4 Russ. 374. 
 
 ig) Sheffield v. Lord Mulgrave, 2 Ves. jun. 526. 
 
 (h) Trent v. Hanning, 10 Ves. jun. 500. 
 
 (i) Willcox V. Bellaers, 1 Turn. & Russ. 491. 
 
 Johns. Ch. Rep. 659. Kelleu v. Bradford, 3 Bibb, 317. But where a 
 purchaser proceeds in the treaty for a purchase, after he is acquainted 
 with the title, and the nature of the tenure, and does not object to if, he 
 will be bound to fulfil his contract ; though a court of equity might give 
 some relief, if, ultimately, the title should turn out to be really bad. 
 Roachw. Rulhcrford, 4 Des. 126, 135. See nho, nevcrloj v. Law- 
 son's heirs, 3 31unf. 317, 338. Maijo v. Purccll, 3 JMunf. 243.
 
 412 
 
 OF THE TITLE VVIIICII 
 
 purchaser from the contract, with costs(Aj). It is, how- 
 ever, to be regretted that such a rule should have been 
 adopted. 
 
 The doubt generally turns upon a point of law, but 
 (*)the rule equally applies to other cases. Therefore 
 where a testator, who appeared to be seised of the entirety 
 of an estate, devised his undivided moiety, or half part of 
 it, and all other his shares, proportions and interests if any 
 therein ; and no evidence appeared that he had not the 
 entirety, and the words were sufficient, if he had, to pass 
 it ; Lord Eldon was of opinion that the title was good ; 
 but he was also of opinion that this was not a reasonably 
 clear marketable title, with that doubt as to the evidence 
 of it, which must always create difficulty in parting with 
 it, and therefore he refused to force the title on a pur- 
 chaser(/). 
 
 So there are many cases in which a jury will collect the 
 fact of legitimacy from circumstances, in which it might 
 be attended with so much reasonable doubt, that equity 
 would not compel a purchaser to take it merely because 
 there was such a verdict. The Court ought to weigh, 
 whether the doubt is so reasonable and fair, that the 
 property is left in his hands not marketable(m). 
 
 Whether where an action is brought against a purchaser 
 for non-performance of an agreement, a court of law" will 
 act upon this doctrine, is doubtful. In a case before Lord 
 Kenyon at nisi prius(n), where an objection was made to 
 the title, his Lordship said he would not then determine 
 the point, nor was it necessary to do so. He thought it 
 a question of some nicety ; but whether it was or not, he 
 thought it equally a defence to the action. When a man 
 
 {k) Blosse r. Claninorris, 3 Bligh, 62. 
 
 (Z) Stapylton i'. Scott, 16 Yes. jun. 272. See 1 Yes. & Beam. 493 ; 
 and see and consider Hartley v. Smith, 1 Buck, 368. 
 {m) Fcr Lord Eldon. See 8 A''es. jun. 428. 
 
 (m.) Hartley r. Peahall, Peake's C. 131 ; Wilde r. Fort, 4 Taunt. 334. 
 
 (*341)
 
 A PURCHASER MAY REQUIRE. ^|g 
 
 buys a commodity, he expects to have a clear indisputable 
 title, and not such a one as may be questionable, at least, 
 (*)in a court of law(l)(207). No man is obliged to buy 
 a lawsuit ; and a verdict was given for the purchaser. 
 But in a later case(o), where at law the same argument 
 was urged on behalf of a purchaser who was plaintiff, 
 Lord C. J. Gibbs said, it was intimated that if any doubt 
 could be cast on the title of the vendor, the plaintiff would 
 be entitled to recover back his deposit. Now, if he had 
 gone into a court of equity, the Chancellor would not, 
 perhaps, have obliged an unwilling purchaser to ratify 
 the contract. But if he come into a court of law to re- 
 cover the deposit, on the ground of an insufficient title, 
 he must abide by the decision of that court, and that is 
 the difficulty which the party had brought upon himself 
 by coming into a court of law. This seems to be the 
 true rule. 
 
 In a late case, where the estate was sold without any 
 notice, that it was recently allotted under an inclosure 
 act, and it appeared that the commissioners had not made 
 their aivard, and the act contained no clause authorizing 
 a sale before the award ; Lord EUenborough held, that 
 the purchaser was warranted in refusing the title(j9). But 
 if the purchaser is at the time of the contract aware that 
 the estate is in a progressive state of inclosure, and there 
 is no ground to suppose that the commissioners will vary 
 the allotments, assuming their power to do so, the pur- 
 
 (o) Romilly v. James, 1 Marsh. 600. 
 
 (p) Lowndes v. Bray, Sitt. after T. Term, 1810 ; Cane v. Baldwin, 
 1 Stark. 65; Fairer v. Billing, 2 Barn. & Aid. 171. 
 
 (I) This expression seems to refer to the question, whether equitable 
 objections to a title are a defence at law. Vide supra, p. 243. 
 
 (207) See Roach v. Rutherford, 4 Des. 133. 
 
 (*342)
 
 414 
 
 OF THE TITLE WHICH 
 
 chaser will be compelled to take t!ie title although the 
 award is not executed(9). 
 
 (*)Where an act of bankruptcy has been committed, the 
 purchaser cannot be compelled to take the title, although 
 the vendor swear that he owes no debt upon which a 
 commission can issue, and the purchaser cannot disprove 
 the statement. The ground of this determination was, 
 the impossibility of ascertaining that there was not such 
 a debt as would support a commission(r). And upon 
 the same principle, a purchaser who has become bankrupt 
 cannot compel a conveyance of the estate to him ; because 
 he cannot satisfy the vendor that he will be entitled to 
 retain the purchase -money (5). 
 
 .So, where an estate is sold subject to a rent, which, 
 although not so stated, appears to be only part of a 
 larger rent charged on that and other property, the pur- 
 chaser will not be bound to take the title, although for 
 many years the apportioned rent has been received (208) : 
 an apportionment by deed must be shown. It is the duty 
 of the vendor to give the purchaser a complete formal 
 discharge of all the further rent that the house was ever 
 liable to. Although an apportionment may be presumed, 
 yet, as Mr. Justice Chambre observed, the question here 
 is not what may be presumed, but w^hether a purchaser 
 is compellable to accept a purchase, where his title rests 
 only on presumption, which may be rebutted by other 
 evidence. And Lord Chief Justice Mansfield said, that 
 a court of equity would not decree a specific performance 
 in a case like this, unless the seller could procure the 
 
 (q) Kingsley v. Young, MS. ; S. C. 17 Ves. jun. 463, affirmed on 
 an appeal by Lord Eldon. The act authorized a sale before the award. 
 
 (r) Lowe v. Lush, 14 Ves. jun. 547 ; Cann v. Cann, 1 Sim. & Stu. 
 284. 
 
 (s) Franklin v. Lord Brownlow, 14 Ves, jun. 660. 
 
 (208) See Ten Brocck v. Livingston, 1 Johns. Ch. Rep. 357. 
 (*343)
 
 A PURCHASER MAY REQUIRE. ^|^ 
 
 ground-landlord to apportion the rent, by joining in an 
 assignment of the lease ; in which assignment the appor- 
 tioned rent should appear(^). 
 
 But where an apportioned rent is sold, if the rent is 
 (*)an apportioned rent, the purchaser cannot object that 
 he will not have the same remedies as if the rent were 
 entire (w). 
 
 So where an estate, held under one lease, is sold in 
 lots, and the fact is stated, and it is stipulated that the 
 purchaser of one particular lot is to be subject to the 
 whoie of the rent, the other purchasers cannot object to 
 the title, although there is a clause of re-entry on non- 
 payment of the rent contained in the lease(.r). 
 
 In a case where an estate was sold in lots, and one of 
 the conditions stated that the estate was subject to the 
 perpetual payment of 120/. to the curate of A., but the 
 same and a perpetual annual payment to the hospital 
 of B. were in future to he dunged upon and paid by the 
 purchaser of lot 1. only ; it was held, that the purchasers 
 of the other lots were only entitled to such an indemnity 
 as could be made by the purchaser of lot 1 . to the pur- 
 chasers of the other lots(?/). 
 
 Where the estate agreed to be leased was comprised 
 with others in an original lease, under which the lessor 
 had a right to re-enter for breach of covenants, so that the 
 under-lessee might be evicted without any breach on his 
 part, it was held, by Sir John Leach, Vice-Chancellor, that 
 he was not bound to accept the title with an indemnity. 
 His Honor observed, that where a party comes for a spe- 
 cific performance, he desires the Court to give the party 
 
 (/) Barnwell v. Harris, 1 Taunt. 430. 
 
 («) So held by the V. C. in Bliss v. Collins, reported in 4 Madd. 
 229. See S. C. 1 Jac. & Walk. 426 ; Walter r. Maunde, 1 Jac. & 
 Walk. 181. 
 
 (t) Walter r. Maunde, uhi sup. 
 
 (y) Cassamajor v. Strode, 2 Swanst. 347 ; 1 Wils. Cha. Ca. 428. 
 
 (*844)
 
 416 
 
 OF THE TITLE WHICH 
 
 the specific subject. Now here he could not secure the 
 possession of the subject upon the terms agreed upon. 
 But he offers an indemnity. The lessee might be evicted, 
 and therefore it was compensation and not indemnity that 
 was offered. I will give you the subject of the contract 
 (*)not with a sure title, but with a compensation in case of 
 eviction. It was not a case for an indemnity, and the 
 Court could not compel a performance with a compen- 
 sation(2;). 
 
 In a late case(«), upon a purchase, it was agreed, that 
 if there should be found any fee-farm rents, or quit-rents, 
 chargeable on the same, an allowance should be made at 
 the rate of thirty years purchase on the amount thereof. 
 It appeared that the estate, with others of great value, 
 was charged with a perpetual rent of forty marks, origi- 
 nally reserved to the Crown ; but a similar rent was 
 granted to trustees in fee, in the usual way, out of a part 
 of the estate not sold, of nearly ten times the annual value 
 of the rent, as an indemnity to the other estates against 
 the rent. It was objected, that this charge prevented the 
 seller from making a good title. It was argued, on the 
 part of the seller, that this was the precise case in which 
 a purchaser would be compelled to take a title with an 
 indemnity. Equity looks only to the substantial execu- 
 tion of the contract ; and here the rent was not, in sub- 
 stance, a charge on the land. It was not like the case of 
 a lease, where non-payment of the rent, or non-perform- 
 ance of the covenants, might avoid the estate of the person 
 who was required to accept the indemnity ; but this was 
 the simple case of a money payment, which would, of 
 course, be accepted from the owner of the estate exclu- 
 
 (z) Fildes r. Hooker, 3d April 1818, MS. ; 3 Madd. 193 ; Warren 
 V. Richardson, 1 You. 1. 
 
 (a) Hays v. Bailey, Rolls, 10 Aug. 1813, MS. vide infra. See 
 Cassamajor v. Strode, 1 Wils.' Cha. Ca. 428. 
 
 (*346)
 
 A PURCHASER MAY REQUIRE. ^27 
 
 sivelj charged with it, by way of indemnity ; and which 
 estate w^ould always be liable to answer any payment 
 made on account of the rent by the persons intended to 
 be indemnified against it. The objection, if allowed, 
 would affect half the titles in the kingdom. It applies 
 (*)to nearly all the estates which came into the hands of 
 the Crown on the dissolution of the monasteries. Dick- 
 enson V. Dickenson(6) was a stronger case ; for there the 
 purchaser was compelled to take the title, although the 
 Judge was of opinion, that if, in the event, the fund 
 should turn out deficient for payment of the infant's 
 legacies, he must still have recourse to the estate for 
 the deficiency. The ground of the decision must have 
 been, that there was no chance of the fund proving defi- 
 cient. Halsey v. Grant(c) is a direct authority in favor 
 of the seller ; and there the indemnity fund was not so 
 large with reference to the amount of the charge as the 
 present ; and although Horniblow v. Shirley(f/), was 
 a case of compensation, and not of indemnity, yet it 
 appears that Lord Alvanley said, that if such an objection 
 was to prevail, a purchaser of a portion of a large estate 
 would always be at liberty to get rid of a contract(e). 
 In the present case, the purchaser did not object to the 
 estate being charged with a fee-farm rent, provided he 
 was paid its value. Here the rent is charged only in 
 point of form ; and therefore he can require no allowance. 
 On the part of the purchaser, it was argued, that the 
 clause relied upon, on the other side, was evidence that 
 the purchaser was not to take the estate subject to any 
 rent, unless it could be sold to him ; and the estate w^ould 
 always be liable to the fee-farm rent, notwithstanding the 
 indemnity. The Master of the Rolls was of opinion, 
 that the clause in the agreement referred to a rent 
 
 (6) 3 Bro. C. C. 19. (rf) 13 Ves. jnn. 8. 
 
 (c) 13 Ves. jun. 73. (*) 13 Ves. jun. ICi. 
 
 VOL. I. 63 (*346)
 
 418 
 
 OF THE TITLE WHICH 
 
 charging the estate sold only, and not to a rent charging 
 it and other estates ; and that the Master was justified 
 in considering the rent as an objection to the title. As 
 to the question of indemnity, his Honor observed, that 
 (*)Halsey and Grant was certainly a case of indemnity ; 
 and Horniblow and Shirley a case of compensation ; but 
 he doubted whether the deed executed in order to relieve 
 the estate in question, could be considered such an in- 
 demnity as a purchaser ought to be compelled to accept, 
 nor should he decide whether in this case any indemnity 
 could or ought to be given by the vendor against such 
 fee-farm rent. He should leave that to be decided when 
 the cause came on to be heard thereafter. 
 
 Upon an appeal to the Lord Chancellor, he affirmed the 
 decision of Sir William Grant, on the ground that the rent 
 in question did not fall within the condition ; and his Lord- 
 ship treated the early cases as not being authorities, and 
 held that a seller was bound accurately to describe what 
 he was selling(/X209). 
 
 In the case of Fildes v. Hooker(g), Sir John Leach, 
 Vice-Chancellor, observed, that the utmost length of in- 
 demnity was, that if a good title can be made subject to 
 an incumbrance, the purchaser shall take the title, with 
 a security protecting him against the incumbrance. He 
 did not know that the Court had gone so far, and he 
 should not be disposed to follow such a rule, because the 
 purchaser is entitled to an estate free from incumbrance. 
 It would be difficult to convince him that such a rule was 
 right. 
 
 (/) M. T. 1821, MS. 
 
 (g) 3d April 1818» MS.; 3 Madd. 193. 
 
 (209) Where there was a contract for the conveyance of land, parcel 
 of a large tract, subject to a quit rent, which had not been demanded 
 for above 60 years, such incumbrance, if any, was held to be no objec- 
 tion to a decree of specific performance. Ten Broeck v. Livingston, 1 
 Johns. Ch. Rep. 357. 
 
 (*347)
 
 A PURCHASER iMAY REQUIRE. ^|g 
 
 It hath before been observed, that a purchaser will not 
 be compelled to take an equitable title ; but this rule does 
 not extend to estates sold before a Master under the 
 decree of a court of equity. For in this case, although 
 the legal estate is outstanding, and cannot be immediately 
 got in, yet if the person seised of the legal estate is 
 a party to the suit, the Court will compel the purchaser 
 to accept the title, and will decree generally that the 
 (*)legal tenant shall convey, and that the purchaser shall 
 in the mean time hold and enjoy. 
 
 And even where the legal estate is vested in an infant, 
 the Court will compel the purchaser to complete his con- 
 tract on the usual decree, that the infant shall convey 
 when he comes of age, unless he then shows cause to the 
 contrary ; and that the purchaser shall in the mean time 
 hold and enjoy. 
 
 Thus in a case(A) where, upon sale of an estate before 
 a Master, in pursuance of a decree under Lord Waltham's 
 will, the purchaser objected to the title, on the ground of 
 the legal estate being in an infant ; Lord Rosslyn, without 
 the least hesitation, compelled the purchaser to take the 
 title, making his decree for the infant to convey in the 
 usual form ; because, as the purchaser bought under the 
 decree, he was bound to accept such a title as the Court 
 could make him(i). And I learn that in a case of this 
 nature, Lord Rosslyn would not sanction an application 
 by the purchaser, at his own expense, for an act of par- 
 liament to divest the infant of the legal estate. Nor, if 
 the estate be copyhold, will the Court retain any part of 
 the purchase-money in order to defray the expense of the 
 
 {h) Ch. MS. See Chandler i'. Beard, 1 Dick. 392. 
 
 (i) But note, a purchaser under a decree will not be compelled to 
 take a doubtful title. See Marlow v. Smith, 2 P. Wms. 198 ; Shaw r. 
 Wright, 3 Vcs. jun. 22 ; Noel v. Weston, Coop. 13S. 
 
 (*348)
 
 ^20 O^ ^^^ TITLE WHICH 
 
 fine that would be payable, in case the infant heir should 
 die before he surrendered(A;). 
 
 But although a purchaser under a decree will be com- 
 pelled to accept a title of this nature, yet, if he sell the 
 estate, the Court will not enforce a specific performance 
 against the second purchaser. 
 
 This was also decided by Lord Rosslyn. The pur- 
 chaser of Lord Waltham's estate sold the estate to a per- 
 son (*)who objected to the title upon the same ground as 
 he had objected to it, and refused to complete the contract. 
 The first purchaser very confidently filed a bill for a spe- 
 cific performance, but Lord Rosslyn dismissed it ; because 
 such second purchaser did not buy under the decree, and 
 therefore was not compellable to accept an equitable 
 title(/). 
 
 But where the estate is not sold by the Court, although 
 the purchaser agree to go before the Master upon a re- 
 ference of title in a suit in Court for the administration 
 of the estate, yet he is not bound to take an equitable 
 t\t\e(m). 
 
 In a case where a seller after the contract died intestate, 
 leaving an infant heir, who filed a bill against the pur- 
 chaser, praying that he might elect either to complete or 
 abandon the contract; and the purchaser submitted to 
 perform the contract, and paid the purchase-money into 
 court, the Maser of the Rolls refused to pay it out with- 
 out the consent of the purchaser during the infancy of the 
 heir(n). 
 
 In another case, where after a contract for sale the 
 seller died intestate, leaving an infant heir, and his widow, 
 
 (k) Morris v. Clarkson, 1 Jac. & Walk. 604, n. ; 3 Swanst. 568. 
 
 (Z) Powell r. Powell, 6 Madd. 53. 
 
 (m) Cann i'. Cann, 1 Sim. & Stu. 284. 
 
 (n) Bullock V. Bullock, 1 Jac. & Walk. 603. 
 
 (*349)
 
 A PURCHASER MAY REQUIRE. a^I 
 
 who was his administratrix, filed a bill for a specific per- 
 formance against the purchaser and the heir, it was de- 
 creed, and a day given to the heir to show cause(o). But 
 the objection, that the purchaser was not bound to accept 
 the title in consequence of the infancy of the heir, was 
 not taken. 
 
 The reason why a purchaser under a decree is com- 
 pelled to take an equitable title seems to be this, that the 
 Court has bound the right of the party in whom the legal 
 (*)estate is vested, and will not permit him to take advan- 
 tage of it. This, however, is not the case w^here the le- 
 gal estate is in an infant ; as it makes part of the decree, 
 that he shall convey when he comes of age, unless he then 
 shows cause to the contrary. 
 
 In favor of the rule, by which a purchaser under a 
 decree is compellable to take an equitable title, it may 
 be said, that it facilitates sales under the decrees of the 
 Court ; but the injustice of it is too glaring. The decree 
 of a court of equity acts in personam, and not like a judg- 
 ment at law, in rem ; and it is possible that the Court 
 may never be able to compel the person seised of the 
 legal estate to convey it to the purchaser. 
 
 But the Acts of the 1 W. 4, to which we have already 
 referred(o), remove most of these anomalies by enabling 
 the Court to make a good legal title. With this view, as 
 we have seen, a tenant for life may convey the inheri- 
 tance ; an infant may convey as if he were an adult ; 
 and a committee may convey in the place of the lunatic. 
 
 Although an estate is not sold under a decree, and the 
 legal estate appears to be outstanding, and cannot be got 
 in, yet, if the circumstances of the case are such as 
 would induce a court of law, under those grounds upon 
 
 (o) Holland v. Hill, Rolls, 18 Mar. 1818, MS. ; King r. Turner, 2 
 Sim. 549. 
 
 (o) Supra, p. 192. 
 
 (*350)
 
 ^22 OF THE TITLE WHICH 
 
 which presumptions are in general raised, to presume a 
 reconveyance, the purchaser will be compelled to take 
 the title(/j). Reconveyances have been frequently pre- 
 sumed upon trials at law in favor of justice ; but this 
 doctrine was never applied to a contract between a vendor 
 (*)and purchaser, until the case of Hillary v. Waller, which 
 certainly has not met with the approbation of the bar. 
 The decision has occasioned considerable difficulties in 
 practice. As no man can say where exactly the line is 
 to be drawn, at what period the presumption is to arise, 
 and what circumstances are sufficient to rebut it, each 
 party puts his own construction on almost every case 
 which arises. This, of course, leads to endless discussion 
 and expense, and the very parties in whose favor the doc- 
 trine was introduced, ultimately feel how much it would 
 have been to their interest, that the general rule of the 
 Profession had not been relaxed. This rule was, that 
 a vendor was bound to get in all outstanding legal 
 estates, which were not barred by the statutes of limita- 
 tions. The certainty of the rule amply compensated for 
 any individual hardship which it might sometimes occa- 
 sion. And now that the time is shortened by the late statute 
 of limitations, there is less room than before for presuming 
 a conveyance of a legal estate against a purchaser(210). 
 
 {p) Hillary v. Waller, 12 Ves. jun. 239 ; Emery v. Growcock, ex 
 parte Holman, post. ch. 9, s. 2, div. iv ; but see Goodright v. Swym- 
 mer, 1 Kenyon, 385 ; Keene v. Deardon, 8 East, 248 ; Doe v. Bright- 
 wen, 10 East, 583, which show that the circumstance of the equitable 
 estate being in the person who claims the benefit of the presumption, is 
 not sufficient of itself to raise it ; and see Barnwell v. Harris, 1 Taunt. 
 430 ; Doe v. Calvert, 5 Taunt. 170 ; Cooke v. Soltau, 2 Sim. & Stu. 
 154 ; and see 10 Barn. & Cress. 312 ; Noel v. Bewley, 3 Sim. 103. 
 
 (210) In Clark v. Redman, 1 Blackf. R. 379, where the plaintiffs 
 gave to defendant their bond conditioned for making a lawful title upon 
 his payment of the purchase money ; held, that the obligors were bound 
 to make a perfect title with a general covenant of warranty. The bond 
 
 (*351)
 
 A PURCHASER MAY REQUIRE. AO^ 
 
 We have seen, that a purchaser cannot be com}3elled to 
 take a doubtful title ; but, nevertheless, he will not be 
 permitted to object to a title on account o£ a bare possi- 
 bility ; because a court of equity, in carrying agreements 
 into execution, governs itself by a moral certainty : it 
 being impossible, in the nature of things, there should be 
 a mathematical certainty of a good title(211). 
 
 Therefore suggestions of old entails, or doubts what 
 issue persons have left, whether more or fewer, are never 
 allowed to be objections of such force as to overturn a ti- 
 tle to an estate(9). 
 
 So where(r), upon a purchase, it appeared that the 
 (*)estate had been originally granted by the Crown, in 
 which grant there was a reservation of tin, lead, and all 
 royal mines, without a right of entry ; yet, as there had 
 been no search made for royal mines for one hundred and 
 
 (q) See 2 Atk. 20, per Lord Hardwicke ; and see Lord Braybroke 
 V. Inskip, 8 Ves. jun. 417 ; Dyke v. Sylvester, 21 Ves. jun. 126. 
 
 (r) Lyddal v. Weston, 2 Atk. 19. See Seaman v. Vawdrey, 16 
 Ves. jun. 390. 
 
 was executed by three ; " by which bond, said the court, these three 
 obhgors were bound for a good and perfect title, with a general war- 
 rantee deed to be executed by them all with their wives. The deed 
 tendered was executed by one and his wife only : defendant was justi- 
 fied in refusing it." 
 
 A contract to make " a warranty deed, free and clear of all incum- 
 brances," held, that the construction of such a contract is, that the pre- 
 mises should in fact be free from incumbrances ; and where it appeared 
 at the time of the tender of the deed that one C. had an inchoate right 
 of dower in the same, the court considered that this was an existing in- 
 cumbrance which justified the defendant in refusing to perform the con- 
 tract on his part. Porter v. Noyes, 2 Greenl. R. 22. And where the 
 plaintiff stipulated to execute a deed with a covenant of warranty, held, 
 that he must have the power to give a deed, which would convey an 
 indefeasible title. Under such a contract a mortgage upon the land is 
 an incumbrance, which will justify the purchaser in refusing the deed. 
 Judson V. Wass, 11 Johns. 11. 
 
 (211) See Ten Broeck v. Livmgsion, I Johns. Ch. Rep. 367. 
 
 (*352)
 
 ^24 ^^ ^'^^^ TITLE WHICH 
 
 eleven years, and, upon examination, the probabilitj was 
 great there were no such mines, and the Crown, for want 
 of a right of entry, could not grant a license to any person 
 to enter and work them, Lord Hardwicke decreed a spe- 
 cific performance. 
 
 Again, in a recent case(5)3 where a man articled for 
 the purchase of an estate, with some valuable mines, and 
 would not complete his contract because the mines were 
 under a common, wherein others had a right of common, 
 and consequently he would be subject to actions for 
 sinking shafts to work the mines ; Lord Eldon, after 
 showing the improbability of any obstruction from the 
 commoners, said, that in case such an action were 
 brought, he should think a farthing quite damages 
 enough ; and therefore decreed a performance in specie. 
 
 This case, like the last, must be considered to have 
 turned on the improbability of the purchaser being dis- 
 turbed ; otherwise it seems to have gone to the utmost 
 verge of the law ; for although such trifling damages 
 could only be recovered, yet that would not be a ground 
 for a nonsuit, as was decided in the late case of Pindar 
 V. Wadsworth(/;). The estate, therefore, would subject 
 the purchaser to litigation, whenever malice or caprice 
 might induce any of the commoners to commence actions 
 against him. 
 
 So a mere suspicion of fraud, which cannot be made 
 out, will not enable a purchaser to reject the title. This 
 was decided by Lord Eldon in a case where, under an 
 exclusive power of appointment, a father appointed to 
 one son in fee ; and then the father and his wife and the 
 (*)son joined in conveying to a purchaser, and the money 
 was expressed to be paid to them all. The title was 
 objected to on the ground of an opinion, by which it 
 
 (s) Anon. Chan. 7th Sept. 1803, MS. 
 
 {t) 2 East, 164. 
 
 (*353)
 
 A PURCHASER MAY REQUIRE. ^25 
 
 appeared, that the fother first sold the estate, and then the 
 appointment was devised to make a title, and the pur- 
 chase-deed recited that the contract was made with the 
 father and son. And it was insisted that if the father 
 derived any benefit from the agreement, or even made a 
 previous stipulation that his son should join him in a sale, 
 which tliere appeared the strono;est reason to apprehend, 
 it would have been a fraudulent execution. But Lord 
 Eldon overruled the objection, as it did not appear that 
 the estate sold for less than its value, or that the son got 
 less than the value of his reversionary interest, but merely 
 that he, as the owner of the reversion, acceded to the 
 purchase(w). 
 
 If a seller file a bill for a specific performance, and 
 a third party file a bill against him, claiming a right to 
 the estate, the mere fact of the pendency of the latter suit 
 is not a sufficient reason for a Master's stating that a good 
 title cannot be made, but the nature of the adverse claim 
 should be examined and stated (.r). 
 
 But if any person has a claim upon the estate which he 
 may enforce, a purchaser cannot be compelled to take the 
 estate, however improbable it may be that the right will be 
 exercised. Thus, in the case of Drewe v. Corp(?/), the 
 vendor was entitled to an absolute term of four thousand 
 years in the estate, and also to a mortgage of the rever- 
 sion in fee, which was forfeited but not foreclosed. It 
 was decided, that the purchaser who had contracted for 
 a fee, was not bound to take the term of years. Nor was 
 (*)he compelled to take the title on the ground of the 
 vendor having a forfeited mortgage in fee of the rever- 
 
 (w) M'Queen v. Farquhar, 11 Ves. jun. 467. Scepos/ <:h. 17 ; and 
 see Bainwall v. Harris, 1 Tannt. 430 ; Boswcll v. Mcndharn, 6 Madd. 
 373. 
 
 (r) Osbaldeston V. Askew, 1 Russ. 160. 
 
 (j/) Vide supra, p. 298. 
 
 VOL. 1. 54 (*354)
 
 ^25 OF THE TITLE WHICH 
 
 sion, although it was evidently highly improbable that 
 any one would ever willingly redeem a forfeited mortgage 
 of a dry reversion expectant upon an absolute term of 
 four thousand years. 
 
 So in a late case(2), it appeared that in 1704 the 
 estate was sold with a reservation of salt-works, &c. with 
 a right of entry, and the estate was sold in 1761, and no 
 notice taken of the reservation, and the right had never 
 been exercised ; the Master of the Rolls was of opinion 
 that non-user did not in this case raise the inference that 
 the right was abandoned, and consequently the purchaser 
 was entitled to take the objection, and his Honor distin- 
 guished this from the case of Lyddal v. Weston(«) ; 
 first, because it was not alleged that there was no proba- 
 bility of mines, it was rather admitted that there were : 
 secondly, here was the reservation of a right of entry, 
 upon the want of which Lord Hardwicke laid stress in 
 that case. In the case before his Honor, the purchaser 
 chose to consider this not as an objection to the title> 
 but as a ground for compensation, and it was decreed 
 accordingly. 
 
 In a case where a close called the Croyle had always 
 been known by that name, and had been possessed by the 
 seller and his ancestors as part of the estate sold, but no 
 mention was made of it in the deeds by name, and all the 
 other lands were particularly described ; the Court con- 
 sidered the evidence of title to be merely that of long 
 possession, and held that the purchaser was not bound to 
 accept the title (6). 
 
 But where it is established by evidence that a copyhold 
 (*)estate sold has continually passed and been enjoyed by 
 the description contained in the court rolls, it is not ma- 
 
 {z) Seaman v. Vawdrej, 16 Ves. jun. 390. 
 
 (a) Supra, p. 351. 
 
 (6) Eyton 1', Dickcn, 4 Price, 303. 
 
 (*366)
 
 A PURCHASER MAY REQUIRE hcyi 
 
 lerial that there is only a general and vague description 
 of the estate on the rolls(c), and the purchaser will be 
 compelled to take the title. 
 
 Equity discountenances the destruction of contingent 
 remainders(f/), yet if they really are barred, a pur- 
 chaser will be compelled to accept the title. This point, 
 which was formerly doubted, was very fully argued 
 before Lord Eldon(e), who several times expressed a 
 strong opinion upon it in favor of the seller, although 
 ultimately he was not called upon to decide the point ; 
 and it has since been decided by Sir John Leach, when 
 V^ice-Chancellor(/]). 
 
 In Beevor v. Simpson(o), the Master of the Rolls held, 
 that a solicitor who had been employed by a person to 
 advise on the title to a property, could not on purchasing 
 the same property from his client set up an objection to 
 the title, which he did not think of any importance when 
 advising his principal. His Honor also decided, that 
 although there were two partners, and the purchaser, who 
 was one of them, did not personally interfere with the 
 title or the purchase by his client, and swore by his an- 
 swer that he had no recollection of the title at the time 
 of his purchase, yet these circumstances did not vary the 
 rule. 
 
 Where an abstract begins with a recovery to bar an en- 
 tail, it is usual in practice to call for the deed creating the 
 entail, in order to see that the estate tail and remainders 
 (*)over, if any, were effectually barred(l). But if the 
 
 (c) Long V. Collier, 4 Russ. 267. 
 
 {d) Roake v. Kidd, 5 Ves. jun. 647. 
 
 (c) Kenn v. Corbett, MS. 
 
 (/■) Hasker r. Sutton, 2 Sim. & Stu. 313. 
 
 (g) 1 Tatnlyn, 69. 
 
 ] X 
 
 (I) This makes it advisable in deeds for an estate tail to recite so 
 
 (*356)
 
 428 
 
 OF THE TITLE WHICH 
 
 deed is lost, and possession has gone with the estates cre- 
 ated by the recovery, for a considerable length of time, 
 and the presumption is in favor of the recovery having 
 been duly suffered, the purchaser will be compelled to take 
 the title, although the contents of the deed creating the 
 entail do not actually appear(/i). 
 
 So where an old deed recites prior deeds, and the 
 seller is unable to procure the instruments recited, the 
 true inquiry is, whether the absence of the deeds recited 
 throws any reasonable doubt upon the title. Where 
 there is a title of sufficient age without the aid of the 
 recited deeds, and no circumstance to repel the presump- 
 tions in favor of the title, the Court will compel the 
 purchaser to accept it(z). 
 
 Where a vendor is tenant in tail, with reversion to 
 himself in fee, and the reversion has vested in different 
 persons, a common recovery is generally required by 
 a purchaser ; because that bars the remainder, while a 
 fine lets it into possession, and thereby subjects the whole 
 fee to any incumbrance which before affected the rever- 
 sion only. But unless some incumbrance appear, or the 
 title to the reversion is not clearly deduced, the Court 
 will not compel a vendor to suffer a recovery on account 
 of the mere probability of the reversion having been 
 incumbered(I). 
 
 (*)Thus in a late case(A;), upon an exception to the 
 Master's report in favor of the title, the objection to 
 
 (/t) Coussmaker v. Sewell, Ch. 4th May 1791, MS. ; Appendix, No. 
 14 ; and see Nouaille v. Greenwood, 1 Turn. 26. 
 (j) Prosser v. Watts, 6 Madd. 69. 
 {h) Sperling v. Trevor, 7 Ves. jun. 497. 
 
 much of the instrument under which the tenant in tail claims as will 
 manifest his power of barring the estate tail and remainders over. 
 
 (I) This is allowed to remain as an illustration of the doctrine, al- 
 though the law is now altered by the 3 & 4 W. 4, c. 74. 
 
 (*357)
 
 A PURCHASER MAY REQUIRE. ^29 
 
 the title was, that one Elizabeth Baker ought to join in 
 a recovery ; the title being derived from John Pain, 
 who, in 1693, limited the estate to the use of himself for 
 life ; remainder, subject to a term, to uses which never 
 arose ; remainder to his daughters in tail ; remainder to 
 himself in fee. Under these limitations, Elizabeth, an 
 only daughter, became seised in tail, with the immediate 
 reversion to her father, who made a will, not executed so 
 as to pass real estate, whereby he devised all his estate to 
 his second wife. Upon his death, Elizabeth his daughter 
 entered, and levied a line. She had issue a daughter, 
 Elizabeth, who married William Baker. They had issue 
 one daughter, Elizabeth Baker. From her the estate 
 was purchased under a decree, and by mesne purchases 
 became vested in the plaintiff. The defendant, the pur- 
 chaser, suggested, that the ultimate remainder in fee 
 might have been by deed or will disposed of by John 
 Pain, or by any other person to whom it might have 
 descended ; and if the same should have been so disposed 
 of, it could then be barred only by Elizabeth Baker. The 
 Lord Chancellor held a recovery not necessary. 
 
 At this day it frequently happens, that in deeds secur- 
 ing debts on real estate, the. estate is authorized to be 
 sold without the assent of the owner, in case default is 
 made in payment of the money on the day named. Such 
 a security is so far a mortgage, that the owner may at any 
 time before a sale require a re-conveyance upon paying 
 the money due ; and in consequence of the old rule, that 
 once a mortgage always a mortgage, the owner is in 
 these cases usually required to join in the conveyance, 
 (*)which he is mostly unwilling to do ; his object being to 
 prevent a sale. But it has been decided by Lord Eldon, 
 that the objection cannot be sustained, and this decision 
 was made in a case where the deed was in form a regular 
 mortgage with a power of sale, and the mortgagor in his 
 
 (*35S)
 
 430 
 
 OF THE TITLE WHICH 
 
 answer stated that he actually resisted the sale as having 
 been made without his consent and at an undervalue(/). 
 This has been followed in many later cases, and is now 
 an established Yu\e(m). 
 
 I. It is clear that a woman is barred of her dower, both 
 at law and in equity, by a legal term created previously 
 to her right of dower attaching on the estate, of which an 
 assignment has been obtained by a purchaser to attend 
 the inheritance(n). For although she can recover her 
 dower at law, it will be with a cesset executio during the 
 term, and equity will not remove the bar. But notwith- 
 standing that a purchaser could obtain an assignment of 
 an outstanding term, which would bar the vendor's wife 
 of her dower, a fine was always required from the vendor 
 and his wife at his expense. It was, however, decided, 
 that a court of equity would enforce a purchaser to accept 
 the title without a fine(o). 
 
 The wife of a trustee in fee, or of a mortgagee in fee 
 of a forfeited mortgage, is at law entitled to dower ; but 
 a fine is on that account never required by a purchaser ; 
 because, if the wife of a trustee or a mortgagee were to 
 (*)be so ill-advised as to prosecute her legal claim, equity 
 would, at this day, undoubtedly saddle her with all the 
 costs(jp). 
 
 (l) Clay V. Sharpe and others, Ch. Mich. Term. 1802, Lib. Reg. A. 
 1802, fo. 66, Appendix, No. 15. 
 
 («i) Baker v. Dibbin, Dibbin v. Baker, Exch. April 20, 1812, MS. ; 
 Corder v. Morgan, 18 Ves. 344 ; JVote, Stabback v. Leatt, Coop. 46, 
 which was taken from a hasty note on a brief, is not, when attentively 
 considered, an authority the other way. 
 
 (n) Vide infra, ch. 9. 
 
 (o) See 10 Ves. jun. 261, 262 ; 1 Jac. & Walk. 665 ; 1 Jac. 490. 
 
 (p) See Noel v. Jevon, Bevant v. Pope, 2 Freem. 43, 71. See 
 Gervoyes's case, Mo. 717, pi. 1002 ; and see 4 Co. 3 b ; 4 Bro. C. C. 
 606, n ; Mansfield's case, Harg. n. 81 ; Co. Litt. 33, a ; Simpson v. 
 Gutteridge, 1 Madd. 609. 
 
 (*359)
 
 A PURCHASER MAY REQUIRE ^g] 
 
 It was a point of some nicety, which was in former 
 editions discussed at length in this place, whether where 
 the wife of a vendor had only an equitable jointure, 
 a purchaser could require a fine. But the late sta- 
 tutes(^) have rendered it unnecessary to do more than 
 refer to the authorities with a view to cases depending 
 upon the old law. 
 
 It is not necessary that a wife should previously to 
 marriage be a party to the deed securing her jointure, but 
 there is no decision to prove that a jointure can be made 
 upon a wife before marriage without the privity of herself, 
 or if under age of her guardian, which will bind her(r). 
 There have been different opinions upon this question ; 
 but if a wife could be barred without her privity, a man 
 might in every case secretly bar his wife of dower by a 
 mere nominal jointure. The statute does not authorize 
 such a fraud ; and it would lead to great inconvenience 
 to refer it to a jury to inquire whether a jointure made 
 without the wife's privity was fraudulent or not. The 
 power which the statute reserves to a woman to elect her 
 dower where a jointure is made after marriage, unless by 
 act of parliament, appears to proceed on the ground that 
 she is during the coverture incapable of consenting to 
 the jointure without the aid of parliament ; and seems to 
 prove that the legislature could not intend to bind her by 
 a jointure made without her privity, when she was com- 
 petent (*)to consent. If her consent was not necessary, 
 it would be unimportant whether the jointure was made 
 by her husband before or after marriage. At the common 
 law, a jointure before marriage was not a bar of dower 
 for two reasons : 1. Because the woman had no title of 
 dower at the time of the acceptance of the satisfaction ; 
 
 (9) 3 & 4 W. 4, c. 74 ; 3 & 4 W. 4, c. 105. 
 
 (r) In Jordan v. Savage, 2 Eq. Ca. Abr. 101, the widow took pos- 
 session of the lands limited to her for her jointure by the articles ; see 
 2 Eden. 66. 
 
 (*360)
 
 432 
 
 OF THE TITLE WHICH 
 
 2. Because no collateral satisfaction can bar any right or 
 title of any inheritance or freehold. Coke explains the 
 origin of jointures thus : Before the making of the statute 
 of uses, the greatest part of the land in England was con- 
 veyed to uses, and as a wife was not dowable of uses, her 
 father or friends upon her marriage procured the husband 
 to take an estate from his feoffees, or others seised to his 
 use, to him and to his wife before or after marriage for 
 their lives or in tail, /or a competent provision for the wife 
 after the husband's death. Then came the statute of uses, 
 by the operation of which, if further provision had not 
 been made, the wives would have J as well their dowers as 
 their jointures, and for this reason the branches concern- 
 ing jointures were added to the statute(s). In a passage 
 where Coke says, that if a jointure is made to a woman 
 before marriage the wife cannot wave it, he refers to an 
 authority in which the jointure was made in performance 
 of covenants(/). It is evident that Coke considered that^ 
 her assent was requisite to a jointure made before mar- 
 riage. Gilbert was of the same opinion. In his Uses(M), 
 he says, if a jointure be made before marriage, she is 
 sole, and as such under no man^s power ; if after marriage 
 she take a jointure in satisfaction of a dower, she may 
 wave it after coverture. But whatever may be the law 
 on this point, no jointure is ever made without the wife's 
 privity. No case has occurred since the statute of 
 Henry 8. of a jointure made without the wife's privity, 
 (*)and not afterwards accepted by her. Of course, there- 
 fore, no distinction ever existed in practice between such 
 cases, and cases where the wife being adult consented to 
 the provision. The provision in each case, that is, whe- 
 ther made with or without her consent, equally proceeds 
 from the husband, and is equally supported by the same 
 consideration ; viz. marriage. If the jointure, made with 
 
 («) 4 Rep. 1 b, 2 a. (/) lb. 3. (n) Page 162. 
 
 (*361)
 
 A PURCHASER MAY REQUIRE. AQQ 
 
 the wife's privity before marriage, does not preclude her 
 from claiming dower out of her husband's other estates, 
 if she be evicted from her jointure, mider the provision 
 in the statute, of course the same rule must prevail in 
 equity. Clearly, equity could not, on the ground of im- 
 plied contract, or of the wife's right to investigate the 
 title to the jointure lands, restrain her from claiming her 
 dower out of her husband's other estates. No such 
 equity has ever been administered. It is admitted, that 
 jointures made with the wife's privity are only a bar by 
 force of the statute, but the bar does not extend to the 
 excepted case of an eviction of the dower ; and to raise 
 a case of equity against a w'oman claiming the benefit of 
 the exception, it \^ ould be necessary to prove an express 
 contract by her relinquishing such benefit. 
 
 The Author, in the last edition, stated his impression to 
 be, that where an estate would be subject to the dower of 
 the vendor's wife, if she were not barred by a jointure, 
 whether legal or equitable, the vendor must either pro- 
 cure his wife to levy a fine of the estate at his own ex- 
 pense, or must produce a satisfactory title to the jointure 
 lands. And this was no more than is constantly required 
 where an estate has been taken in exchange. The 
 vendor is compelled to produce the title not only to the 
 estate sold, but also to the estate given by him in ex- 
 change. The same principle applied to the case under 
 consideration. 
 
 (*)But this, like the former point, is only material with 
 reference to cases not within the late Act, to which re- 
 ference will shortly be made. A fine cannot now be 
 levied. 
 
 II. Equity appears to consider any provision, however 
 inadequate or precarious it may be, which an adult jue- 
 viously to marriage accepts in lieu of dower, a good 
 
 VOL. I. 65 (*362)
 
 434 
 
 OF THE TITLE WHICH 
 
 equitable jointure(.T)(213) : and will in some cases even 
 imply an intention to bar the wife of her dower ; thus, 
 where a provision was made for the livelihood and main- 
 tenance of the wife after her husband's death, although it 
 was not expressed to be in bar of dower, yet it was 
 holden to be a bar in equity, on the implied intention of 
 the parties(«/)(214). 
 
 But in a case where a leasehold estate was settled be- 
 fore marriage upon the intended wife " in recompense, 
 
 {x) Jordan v. Savage, Bac. Abr. Jointure, (B) 6 ; Charles v. An- 
 drews, 9 Mod. 152; Williams v. Chitty, 3 Ves. jun. 545 ; 4 Bro. C. 
 C. 513. This was admitted by the counsel for the appellants in Drury 
 V. Drury. See 5 Bro. P. C. 581. 
 
 {y) Vizard v. Longdale, 3 Atk. 8, cited ; reported 2 Kel. Cha. Ca;. 
 17, nom. Vizod v. London. See 2 Com. Dig. 148 ; Estcourt v. Est- 
 court, 1 Cox, 20. See Tinny v. Tinny, 3 Atk. 8 ; Couch v. Statton, 
 4 Ves. jun. 391 ; and Garthshore v. Chalie, 10 Ves. jun. 20. See 
 Sugd. n. (7) to Gilb. on Uses, p. 332. 
 
 (213) See Hastings \. Dickinson, 7 Mass. Rep. 163. Jlmhler \. 
 JYorton, 4 Hen. & Munf. 23. 
 
 In Hastings v. Dickinson, it was held, that where the wife covenant- 
 ed in a marriage settlement not to demand dower in the husband's es- 
 tate in consideration of an annuity, which was to be paid out of his es- 
 tate, this was no bar of dower. At common law a jointure made to a 
 wife, before or after marriage, was no bar to her dower ; because the 
 dower being a freehold could not be barred by any collateral satisfaction. 
 And no jointure is a bar within the statute of 27 Hen. 8. c. 10, unless 
 it be a freehold in lands, tenements or hereditaments, for the life of the 
 wife at least, and which shall take effect in possession or profit imme- 
 diately on the husband's death. The covenant cannot have the effect 
 of a release of dower ; for a release of a future demand, not then in 
 existence, is void. On this principle, if there be any relief against the 
 widow on her covenant, it must be by action. 
 
 (214) See Van Orden v. Van Orden, 10 Johns. Hep. 30. Msit v. 
 Msit, 2 Johns. Ch. Rep. 448. See also, Smith v. Kniskern, 4 Johns. 
 Ch. Rep. 9. Swaine v. Ferine, 6 Johns. Ch. Rep. 482. fVcbb v. 
 Evans, 565, 672. Kennedy v. JVedroiv, 1 Dall. 413. Creacraft v. 
 Wions, Addis. 350. Herbert v. Wren, 7 Cran(;h, 370. Ward v. Wil- 
 son, 1 Des. 401, 409. Snelgrove v. Snelgrove, 4 Des. 274, 293.
 
 A PURCHASER MAY REQUIRE. ^^ 
 
 and bar of dower, and for a provision for her," and the 
 husband had no real estate, it was held that the wife's 
 right to thirds was not barredfz). For, as the declared 
 object was to bar her of dower, no implication could be 
 admitted, that she was to be barred of thirds also; the 
 direction that the settlement was for a provision for her, 
 only expressed the effect of the settlement, and could not 
 be deemed evidence of an intention to bar her of a ri^ht 
 which was not named. 
 
 (*)So, as infants are within the statute of Henry 8.(«), 
 and may be barred of dower at law, they may in like 
 manner be barred by an equitable jointure(6). 
 
 But an equitable provision in bar of dower will not 
 bind an infant, unless it be as certain a provision as her 
 dower. Therefore a settlement of an estate upon an in- 
 fant for life, after the death of her husband and any third 
 person, will not be a good bar, as the stranger may sur- 
 vive the wife(c). So a provision that the personal estate 
 shall go according to the custom of London, in bar of 
 dower, or any provision of that nature, will not be deemed 
 an equitable bar of dower to an infant, on account of the 
 uncertainty and precariousness of the provision(^). 
 
 Supposing an equitable jointure to be merely charged 
 on stock vested in trustees, and the wife to have been mar- 
 ried under age, there seems reason to contend, that if the 
 fund should be wasted by the trustees, equity would not 
 restrain the wife from proceeding for her dower ; and in 
 
 (s) Cresswcll r. Byron, 3 Bro. C. C. 362. See Pickering u. Lord 
 Stamford, 3 Yes. jun. 332. 
 
 (a) Drury v. Drury, or, Earl of Bucks v. Drury, 6 Bro. P. C.J570; 
 4 Bro. C. C. 606, n. ; Wilmot, 177. 
 
 (6) See the cases, ante n. (/). 
 
 (c) Caruthers v. Caruthers, 4 Bro. C. C. 600. See Corbet v. Cor- 
 bet, 1 Sim. & Stu. 612, which was affirmed by the Lord Chancellor 
 upon appeal. 
 
 (rf) Smith i\ Smith, 5 Vcs. jun. 189 ; 6 Russ. 254. 
 
 (*363)
 
 436 
 
 OF THE TITLE WHICH 
 
 that case a purchaser would certainly have been entitled 
 to a fine(I). 
 
 In Caruthers v. Caruthers(e), Lord Alvanley, then 
 Master of the Rolls, addressing himself to what was and 
 what was not an equitable bar of dower to an infant, put 
 the case of a charge in bar of dower made upon an 
 estate wath a bad title, and held that it would be no bar. 
 Therefore, whatever opinion may be entertained on the 
 general question, a purchaser must be satisfied of the title 
 (*)to the lands upon which the equitable jointure of a feme 
 covert married under age is charged. And where the 
 settlement rests in covenant, the purchaser should not 
 complete his contract until the covenant be actually per- 
 formed ; for an alienation by the husband of the fund out 
 of which the jointure is to arise, will be deemed an evic- 
 tion of the fund, and consequently the wife will be let in 
 for her dower(y^. 
 
 III. The foregoing observations apply to the law as 
 it stood before the 3 & 4 Wil. 4, c. 105. That Act is 
 not to extend to the dower of any widow who shall have 
 been or shall be married on or before the 1st January 
 1834, and is not to give to any will, deed, contract, en- 
 gagement or charge executed, entered into, or created 
 before that day, the effect of defeating or prejudicing any 
 right to dower(^). It is, therefore, still necessary to 
 know what the law was wath reference to the cases to 
 which the Act does not extend. And it must be borne in 
 
 (e) 4 Bro. C. C. 500. See 5 Yes. jun. 192. 
 
 (/) Druiy V. Diury, 4 Bro. C. C. 606, n. 
 
 (o) Sec. 14. The 3 & 4 W. 4, c. 74, s. 77, may be held to extend 
 to dower, so as to enable a married woman to destroy it, but it does not 
 in expression accurately embrace it. 
 
 (I)' This point does not appear to be decided either by Drury v. 
 Drury, or Williams v. Chitty. 
 (*364)
 
 A PURCHASER MAY REQUIRE. ^q 
 
 mind that as to widows within the exception, their rights 
 are saved in estates acquired by their husbands, even after 
 the 1st January 1834. 
 
 The rislit of dower of women married after the 1st 
 January 1834, is placed on altogether a different footing. 
 It is enacted, that when a husband shall die, beneficially 
 entitled to any land(I) for an interest which shall not 
 entitle his widow to dower out of the same at law, and 
 such interest, whether wholly equitable, or partly legal 
 (^)and partly equitable, shall be an estate of inheritance in 
 possession, or equal to an estate of inheritance in posses- 
 sion, (other than an estate in jointenancy,) then his 
 widow shall be entitled in equity to dower out of the same 
 land(/t), so that now dower attaches on equitable estates. 
 
 And when a husband shall have been entitled to a right 
 of entry or action in any land, and his widow would be en- 
 titled to dower out of the same if he had recovered posses- 
 sion thereof, she shall be entitled to dower out of the same 
 although her husband shall not have recovered possession 
 thereof; provided that such dower be sued for or obtained 
 within the period during which such right of entry or 
 action might be enforced(/). 
 
 1. The above are both provisions extending the wife's 
 right to dower ; but the other provisions place the right 
 altogether in the power of the husband. For no widow^ 
 shall 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(/c). 
 
 {h) Sec. 2. 
 (t) Sec. 3. 
 (A;) Sec. 4. 
 
 (I) The word "land" shall extend to manors, advowsons, messuages, 
 and all other hereditaments, whether corporeal or incorporeal (except 
 such as are not liable to dower), and to any share thereof; and every 
 word importing the singular number only shall extend and be applied to 
 several persons or things as well as one person or tlung; sect. 1. 
 
 (*365)
 
 438 
 
 OF THE TITLE WHICH 
 
 2. All partial estates and interests, and all charges 
 created by any disposition or will of a husband, and all 
 debts, incumbrances, contracts, and engagements to which 
 his land shall be subject or liable, shall be valid and 
 effectual as against the right of his widow to dower(/). 
 
 3. And a widow shall not be entitled to dower out of 
 any land of her husband when in the deed by which such 
 land was conveyed to him, or by any deed executed by 
 him, it shall be declared that his widow shall not be en- 
 titled to dower out of such land(m). 
 
 4. And a widow shall not be entitled to dower out of 
 any land of which her husband shall die wholly or par- 
 tially intestate when by the will of her husband, duly 
 (*)executed for the devise of freehold estates, he shall de- 
 clare his intention that she shall not be entitled to dower 
 out of such land, or out of any of his land(/i). 
 
 5. And the right of a widow to dower shall be subject 
 to any conditions, restrictions, or directions which shall 
 be declared by the will of her husband, duly executed as 
 a foresaid (o). 
 
 There appears to have been no sufficient ground for this 
 alteration of the law. The wife's ancient right of dower 
 has been in effect taken away. And surely it is inconsis- 
 tent, whilst you enable the husband in every case to defeat 
 it, to extend the right over equitable estates. The first 
 clause of the provision, No. 3, was suggested by the 
 Author, and was, by the desire of Lord Eldon, introduced 
 into a bill for altering the statute of limitations, brought 
 into the House of Commons by the present Vice-Chan- 
 cellor, when he was a member of that House. It was no 
 infringement upon the right of the wife, for as the husband 
 might have limited the estate to uses to bar dower, so as to 
 prevent dower from attaching, there was no reason why his 
 
 (I) Sec. 5. (»i) Sec. 6. 
 
 («) Sec. 7. (o) Sec. 8. 
 
 (*366)
 
 A PURCHASER MAY REQUIRE. 439 
 
 simple declaration should not have the same operation ; 
 and the object was to prevent the unnecessary creation of 
 powers. But the vesting of a power in the husband to 
 defeat the wife's right after it has attached must be de- 
 fended upon different grounds. 
 
 Tiie Act then proceeds to provide for the cases in which 
 testamentary provisions by the husband for his wife sh^ll 
 be a bar of her dower. 
 
 1. 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 said husband, 
 (*)unless a contrary intention shall be declared by his 
 \vi\](p). 
 
 2. But no gift or bequest made by any husband to or 
 for the benefit of his widow of or out of his personal 
 estate, or of or out of any of his land not liable to dower, 
 shall defeat or prejudice her right to dower, unless a con- 
 trary intention shall be declared by his will(9). 
 
 And it is provided that nothing in the Act contained 
 shall prevent any court of equity from enforcing any 
 covenant or agreement entered into by or on the part of 
 any husband not to bar the right of his widow to dower 
 out of his lands(r). Nor is any thing in the Act to in- 
 terfere with any rule of equity, or of any ecclesiastical 
 court, by which legacies bequeathed to widows in sa- 
 tisfaction of dower are entitled to priority over other 
 legacies (5). 
 
 Lastly, dower ad ostium ecdesicB, and dower ex assensu 
 patris, are abolished(/^). 
 
 In the case of Pope v. Simpson(M), Lord Rosslyn ap- 
 
 ip) Sec. 9. (q) Sec. 10. 
 
 (r) Sec. 11. {s) Sec. 12. 
 
 (/) Sec. 13. („) 5 Ves. jun. 145. 
 
 (*367)
 
 440 
 
 OF THE TITLE WHICH 
 
 pears to have held, that persons purchasing from the 
 assignees of a bankrupt have no right to expect more, 
 than that the assignees should deliver over such title as 
 the bankrupt had. This decision, however, was opposed 
 by prior cases(a;), and the general rules of equity ; and 
 in a Jate case Lord Eldon expressly denied the doctrine 
 advanced by Lord Rosslyn(7/) ; and Sir William Grant 
 actually decided, that assignees stand in the situation of 
 ordinary vendors(2:). 
 
 (*)But in a case(«) where assignees, having a defective 
 title, put it up to sale, and one of the conditions stated, 
 that the purchaser should have an assignment of the 
 bankrupt's interest to one moiety of the estate, under such 
 title as he lately held the same, an abstract of which might 
 be seen at a place named in the conditions, the Vice- 
 Chancellor stated, that a vendor, if he thinks fit, may 
 stipulate for the sale of an estate with such title only as 
 he happens to have ; and he held, that in this case the 
 assignees sold only such title as they had ; but as it was 
 stated that the conditions of sale were not circulated 
 before the sale, the purchaser was offered an inquiry as 
 to this fact. 
 
 Conditions like that in Freme v. Wright should be 
 looked at with great jealousy, as they are often traps for 
 the unwary ; and the Court should at least expect the fact 
 to be broadly stated, that the seller only sells such title as 
 he has, without warranting the same. 
 
 In Dick V. Donald, in the House of Lords, where the 
 articles of roup in Scotland bound the seller to execute 
 and deliver a valid irredeemable disposition of the pro- 
 
 (x) Spurrier v. Hancock, 4 Ves. jun. 667; and see Orlebar v. Flet- 
 cher, 1 P. Wms. 737. 
 
 {y) White v. Foljambe, 11 Ves. jun. 337 ; and see 18 Ves. 612. 
 
 (s) M'Donald v. Hanson, 12 Ves. jun. 277. 
 
 (a) Freme v. Wright, 4 Madd. 364. See Baxters. ConoUy, 1 Jac. 
 & Walk. 576 ; Wilmot v. Wilkinson, 6 Barn. & Cress. 606. 
 
 (*368)
 
 A PURCHASER MAY REQUIRE. ;,K-t 
 
 perty, and to deliver to the purchaser certain specified 
 i nstruments, " which are all the title-deeds of the pro- 
 perty in his, the seller's custody," and it was insisted that 
 the title was limited by the articles of roup, it was de- 
 cided otherwise ; and Lord Eldon said, that he could 
 see nothing in the article of roup to take away the right 
 to a good title. As to the condition with respect to the 
 title-deeds, he never heard that because the seller pro- 
 vides, by the condition, that he will give to the purchaser 
 only certain specified deeds, the purchaser must take 
 a bad title, or such title as appears upon the deeds(6). 
 
 (*)In Clarke v. Faux(c), an estate was sold by assignees 
 of a bankrupt^ and a good title was to be made. One of 
 the assignees purchased and took possession. He agreed 
 to sell to the plaintiff, who entered into possession, and 
 paid part of his purchase-money. A dispute was termi- 
 nated by an agreement that the plaintiff should pay the 
 residue of the purchase-money on a day named, together 
 with interest, upon the seller to him making a good title to 
 the premises, or otherwise, if such title should not then be 
 completed, upon the seller executing at his own expense 
 a bond to complete such title^ and to convey the estate as 
 soon as the same could be completed. A good title could 
 not be made by the seller to the plaintiff, who recovered 
 the residue of the purchase-money at law, and having ten- 
 dered a bond conditioned for making a good title to the 
 purchaser, he insisted, in answer to the plaintiff's bill, 
 that the plaintiff was bound to take the property with 
 the bond, whether a good title could be made or not. 
 But it was held that the meaning of the parties was, that 
 the money was to be paid on the day named, although the 
 title might not then be completed ; but subject always 
 to this condition, that the vendor had the power to coni- 
 
 {b) 1 Bligh, N. S. 655. 
 
 (c) .3 Russ. 320. 
 
 VOL. I. 56 (*369)
 
 AAQ OF THE TITLE WHICH 
 
 plete it, and that it was not intended that it should be 
 paid if the vendor did not possess such power. 
 
 Formerly, where a vendor claimed under a modern will, 
 by which the heir at law was disinherited, it was usual to 
 require the will to be proved in equity against the heir at 
 ]aw(^) : but this practice is now almost wholly discontinu- 
 ed. In the case of Colton v. Wilson(e), the purchaser 
 was in the first instance discharge from his purchase on 
 account of the will not being proved against the heir at 
 (*)law ; but on a re-hearing he was compelled to take the 
 title. This decree, however, was made on the particular 
 circumstances of the case, and the point was by no means 
 settled. In Bellamy v. Livers idge(X), the title received 
 the Master's approbation, although the will was not proved 
 against the heir at law ; Jtnd upon exceptions to his report 
 on that account coming on. Lord Kenyon, then Master of 
 the Rolls, overruled them. 
 
 It is not unusual to require the heir at law to join in the 
 conveyance, if his concurrence can be easily obtained ; 
 and where he is a party to a conveyance in any other 
 character, he is invariably made a conveying party, in his 
 character of heir at law ; although in strictness this could 
 not be insisted upon. 
 
 If it should even be thought that a modern will must be 
 proved against the heir at law, yet it seems clear that 
 equity would not compel the vendor, at the suit of the 
 purchaser, to prove the will ^er testes. The objection, 
 therefore, under any construction, could only be set up by 
 a purchaser, as a defence to a specific performance. 
 
 (d) See Fearne's Posthuma, 234. See Harrison v. Coppard, 2 
 Cox, 318, as to the custody of the will. 
 
 (c) 3 P. Wms. 190. 
 
 (/) Chan. 12 June 1786, MS. ; and see Wakeman v. Duchess of 
 Rutland, 3 Ves. jun. 233 ; 8 Bro. P. C. 145 ; and Morrison v. Arnold, 
 19 Ves. jun. 673 ; sed vide Smith v. Hibbard, 2 Dick. 730. 
 
 (*370)
 
 A PURCHASER MAY REQUIRE. 4,^^ 
 
 Where a will has been executed it must be produced 
 l^efore a purchaser can be compelled to accept the title, 
 although having been treated as a nullity by a profes- 
 sional man it has been mislaid, and the seller, being heir 
 of the testator, has rested upon his title as heir(^). 
 
 As the law of descent has lately been greatly altered, 
 we may, perhaps, in this place, usefully introduce the 
 Act(/i) by which the alteration was effected. 
 
 (*)The statute enacts, 1. That in every case descent(l) 
 
 (g) Stevens v. Guppy, 2 Sim. & Stu. 439. 
 Ih) 3 & 4 W. 4,c. 106. 
 
 (I) The word "land" shall extend to manors, advovvsons, mes- 
 suages, and all other hereditaments, whether corporeal or incorporeal, 
 and whether freehold or copyhold, or of any other tenure, and whether 
 descendible according to the common law, or according to the custom 
 of gavelkind or borough-english, or any other custom, and to money 
 to be laid out in the purchase of land, and to chattels and other per- 
 sonal property transmissible to heirs, and also to any share of the 
 same hereditaments and properties or any of them, and to any estate 
 of inheritance, or estate for any life or lives, or other estate transmissi- 
 ble to heirs, and to any possibility, right, or title of entry or action, and 
 any other interest capable of being . inherited, and whether the same 
 estates, possibilities, rights, titles, and interests, or any of them, shall 
 be in possession, reversion, remainder, or contingency ; and the words 
 " the purchaser" shall mean the person who last acquired the land 
 otherwise than by descent, or than by any escheat, partitix)n, or inclo- 
 sure, by the effect of which the land shall have become part of or de- 
 scendible in the same manner as other land acquired by descent ; and 
 the word " descent" shall mean the title to inherit land by reason of 
 consanguinity, as well where the heir shall be an ancestor or collateral 
 relation, as where he shall be a child or other issue ; and the expression 
 " descendants" of any ancestor shall extend to all persons who must 
 trace their descent through such ancestor ; and the expression " the 
 person last entitled to land" shall extend to the last person who had a 
 right thereto, whether he did or did not obtain the possession or the 
 receipt of the rents and profits thereof; and the word "assurance" 
 shall mean any deed or instrument (other than a will) by which any 
 land shall be conveyed or transferred at law or in equity ; and every 
 
 (*371)
 
 ^^ OF THE TITLE WHICH 
 
 shall be traced from the purchaser; and to the intent 
 that the pedigree may never be carried further back than 
 the circumstances of the case and the nature of the title 
 shall require, the person last entitled to the land shall, 
 for the purposes of this Act, be considered to have been 
 the purchaser thereof unless it shall be proved that he 
 inherited the same, in which case the person from whom 
 he inherited the same shall be considered to have been 
 the purchaser unless it shall be proved that he inherited 
 (^)the same ; and in like manner the last person from 
 whom the land shall be proved to have been inherited 
 shall in every case be considered to have been the pur- 
 chaser, unless it shall be proved that he inherited the 
 same(i). 
 
 2. And when any land shall have been devised, by 
 any testator who shall die after the 31st day of Decem- 
 ber 1833, to the heir or to the person who shall be the 
 heir of such testator, such heir shall be considered to 
 have acquired the land as a devisee, and not by descent ; 
 and when any land shall have been limited, by any as- 
 surance executed after the said 31st day of December 
 1833, to the person or to the heirs of the person who 
 shall thereby have conveyed the same land, such person 
 shall be considered to have acquired the same as a pur- 
 chaser by virtue of such assurance, and shall not be con- 
 sidered to be entitled thereto as his former estate or part 
 thereof(/c). 
 
 3. And when any person shall have acquired any land 
 by purchase under a limitation to the heirs or to the 
 heirs of the body of any of his ancestors, contained in an 
 
 (i) Sec. 2. (k) Sec. 3. 
 
 word importing the singular number only shall extend and be applied to 
 several persons or things as well as one person or thing ; and every 
 word importing the masculine gender only shall extend and be applied 
 to a female as well as a male. Sect. 1. 
 (*372)
 
 A PURCHASER MAY REQUIRE. 4^ 
 
 assurance executed after the said 31st day of December 
 1833, or under a limitation to the heirs or to the heirs 
 of the body of any of his ancestors, or under a limitation 
 having the same effect, contained in a will of any testator 
 who shall depart this life after the said 31st day of 
 December 1833, then and in any of such cases such land 
 shall descend, and the descent thereof shall be traced as 
 if the ancestor named in such limitation had been the pur- 
 chase?' of such land (I). 
 
 4. No brother or sister shall be considered to inherit 
 immediately from his or her brother or sister, but every 
 descent from a brother or sister shall be traced through 
 the parent(m). 
 
 (*)5. And every li7ieal ancestor shaW be capable of being 
 heir to any of his issue ; and in every case where there 
 shall be no issue of the purchaser, his nearest lineal 
 ancestor shall be his heir in preference to any person who 
 would have been entitled to inherit, either by tracing his 
 descent through such lineal ancestor, or in consequence 
 of there being no descendant of such lineal ancestor, so 
 that the father shall be preferred to a brother or sister, 
 and a more remote lineal ancestor to any of his issue, 
 other than a nearer lineal ancestor or his issue(?«). 
 
 6. And none of the maternal ancestors of the person 
 from whom the descent is to be traced, nor any of their 
 descendants, shall be capable of inheriting until all his 
 paternal ancestors and their descendants shall have failed ; 
 and also that no female paternal ancestor of such person, 
 nor any of her descendants, shall be capable of inheriting 
 until all his male paternal ancestors and their descendants 
 shall have failed ; and that no female maternal ancestor 
 of such person, nor any of her descendants, shall be ca- 
 pable of inheriting until all his male maternal ancestors 
 and their descendants shall have failed(o). 
 
 (/) Sec. 4. (m) Sec. 5. 
 
 (») Sec. 6. (o) Sec. 7. 
 
 (-373)
 
 446 * O^ THE TITLE WHICH 
 
 7. And where there shall be a failure of male paternal 
 ancestors of the person from whom the descent is to be 
 traced, and their descendants, the mother of his more 
 remote 7?iale paternal ancestor, or her descendants, shall 
 be the heir or heirs of such person, in preference to the 
 mother of a less remote male paternal ancestor, or her 
 descendants ; and where there shall be a failure of male 
 maternal ancestors of such person, and their descendants, 
 the another of his more lemote male maternal ancestor, 
 and her descendants, shall be the heir or heirs of such 
 person, in preference to the mother of a less remote male 
 maternal ancestor, and her descendantsCi?^. 
 
 (*)8. And any person related to the person from whom 
 the descent is to be traced by the half blood shall be 
 capable of being his heir ; and the place in which any 
 such relation by the half blood shall stand in the order 
 of inheritance, so as to be entitled to inherit, shall be next 
 after any relation i7i the same degree of the whole blood, 
 and his issue, where the common ancestor shall be a male ; 
 and next after the common ancestor where such common 
 ancestor shall be a female, so that the brother of the half 
 blood on the part of the father shall inherit next after the 
 sisters of the whole blood on the part of the father and 
 their issue, and the brother of the half blood on the part 
 of the mother shall inherit next after the mother(^). 
 
 9. And when the person from whom the descent of any 
 laud is to be traced shall have had any relation who, 
 having been attainted, shall have died before such descent 
 shall have taken place, then such attainder shall not prevent 
 any person from inheriting such land who would have 
 been capable of inheriting the same, by tracing his 
 descent through such relation, if he had not been at- 
 tainted, unless such land shall have escheated in conse- 
 
 ip) Sec. 8. (q) Sec. 9. 
 
 (•*374)
 
 A PURCHASER MAY REQUIRE, h^^j 
 
 quence of such attainder before the 1st day of January 
 1834(r). 
 
 10. But the Act does not extend to any descent which 
 shall take place on the death of any person who shall die 
 before the said 1st day of January 1834(5). 
 
 And where any assurance executed before the said 1st 
 day of January 1834, or the will of any person who shall 
 die before the same 1st day of January 1834, shall con- 
 tain any limitation or gift to the heir or heirs of any 
 person, under which the person or persons answering the 
 description of heir shall be entitled to an estate by pur- 
 chase, then the person or persons who would have 
 (*)answered such description of heir, if this Act had not 
 been made, shall become entitled by virtue of such limi- 
 tation or gift, whether the person named as ancestor shall 
 or shall not be living on or after the said 1st day of 
 January 1834(0- 
 
 IV. There is a serious objection frequently taken to 
 titles, which it may not be improper to consider in this 
 place. 
 
 The objection to which I allude is, that an equitable 
 recovery is void where the equitable tenant to the prcscipe 
 has the legal estate. In support of this objection, it is 
 urged, that where the legal freehold is limited to one for 
 life, with an equitable remainder to the heirs of his body, 
 the estates cannot coalesce so as to make the parent 
 tenant in tail, notwithstanding that he has the beneficial, 
 and consequently the equitable estate for life ; and there- 
 fore, upon the same principle, the legal tenant for life 
 cannot be considered as seised of an equitable estate, dis- 
 tinct from his legal estate, so as to support the recovery as 
 a good equitable recovery. 
 
 In answer to this argument, it may be said, that the 
 
 (r) Sec. 10. (s) Sec. 11. (<) Sec. 12. 
 
 (*375)
 
 448 O^ I'HE TITLE WHICH 
 
 reason why the equitable remainder to the heirs of the 
 body cannot coalesce with the legal estate for life is, that 
 the rule in Shelly 's case requires both estates to be legal. 
 This is an imperative rule of law, which courts of equity 
 can no more depart from than they can alter the rules of 
 descent. Equity, however, follows the law ; and, therefore, 
 if both estates are equitable, they will unite in the same 
 manner as if they were legal estates. But as Mr. Fearne, 
 with his usual ability, observes, when both the estates 
 are not legal, the application of a legal construction, or 
 operation of a rule of law, which must equally affect both, 
 (*)seems to be excluded by one of the objects of that con- 
 struction not being a subject of legal cognizance. So 
 when both are not equitable estates, their combination 
 seems to be out of the reach of an equitable construction 
 to which one of the estates is not adapted (?<). 
 
 Now this difficulty does not occur in the principal case. 
 The equitable estate tail has no existence in contemplation 
 of law, but depends wholly on the rules of equity for its 
 support. And therefore there is no rule of law which 
 says that the recovery shall be void. Equity, \\ilh re- 
 spect to equitable recoveries, adheres as nearly as may 
 be to the mode of barring entails prescribed by the law. 
 In this instance the analogy is strictly preserved, for the 
 tenant to the prcecipe has the equitable estate of freehold. 
 And if a court of equity were to hold a recovery bad, on 
 the ground of the equitable tenant to the prcecipe having 
 the legal estate, it would only make another deed neces- 
 sary. The tenant for life would convey to a third person 
 in trust for himself, before he made a tenant to the praecipe, 
 and by this simple expedient vanquish the objection. 
 
 In a manuscript opinion, given by Mr. Fearne, on this 
 point, in which he held the recovery to be good, although 
 the equitable tenant to the prcecipe had the legal estate, 
 
 («) Cont. Remainders, p. 78, 51h edit. 
 (*376)
 
 A PURCHASER MAY REQUIRE. ^^ 
 
 he fust adverts to the analog}' preserved between legal 
 and equitable recoveries, and then proceeds thus : " The 
 principle applies with no less force, w'here we suppose 
 the tenant for life to be of the legal estate, for his own 
 benefit. For ihen the equitable interest is involved in the 
 legal ; and of consequence all that is required bj the said 
 rule of analogy is had in his concurrence, viz. the concur- 
 rence of the person entitled to the beneficial interest or 
 pernancy of the profits of the immediate estate of freehold. 
 If the concurrence of a person entitled to the mere bene- 
 ficial (*)interest of freehold will answ^er the rule of analogy 
 to the requisite extent for barring equitable estates tail and 
 remainders, can there be a doubt in regard to the compe- 
 tency of the person entitled not merely to that degree of 
 interest, but to a comprehending greater estate, adequate 
 even to the purpose of barring legal estates and remain- 
 ders ? The analogy supposes that a recovery by an equi- 
 table tenant in tail will bar the equitable estate tail and 
 remainders, and reversion, even where, if the estate tail 
 and remainders had been legal, such recovery would not 
 have barred them for w'ant of a legal tenant to the prcecipe ; 
 because that analogy in the one case substitutes an equi- 
 table tenant in the place of a legal one in the other. Now, 
 can the same rule of analogy ever deny to a recovery by 
 a tenant in tail of an equitable estate the same effect in 
 barring his estate tail and the subsequent equitable re- 
 . mainders and reversion, as it would have had if all those 
 estates had been legcd ? Such a doctrine would be out- 
 running the analogy, and the very ground for its adoption, 
 in disabling those very persons from barring equitable 
 estates tail and remainders, who might have barred them 
 if they had been legal instead of equitable. This would 
 scarcely be reconcilable with the well-known maxim of 
 cequitas sequitur legem. 
 
 If the objection cannot be supported upon principle, 
 much less can it be sustained npon authority. On the 
 
 VOL. I. 57 (*377)
 
 450 
 
 OF THE TITLE WHICH 
 
 one hand, it has never been said that such a recovery is 
 void, except in the case of Shapland v. Smith(a:), where 
 Lord Thurlow is made to say, that Christopher had only 
 an equitable estate for life, and the subsequent estate 
 being executed, he had an equitable estate for life, and a 
 legal remainder in tail, which could not unite ; and of 
 course there could not be a good tenant to the prcecipe, 
 (*)and the recovery suffered was void ; it being necessary, 
 in order to make a good tenant to the prcecipe, that there 
 should be a legal estate for life, with a legal reversion in 
 tail, or an equitable estate for life, with an equitable 
 reversion in tail. Upon the latter dictum, Mr. Fearne, in 
 the opinion before referred to, observes, that he could not 
 hesitate in imputing it to the same inaccuracy or misap- 
 prehension of the reporter to which other unwarrantable 
 positions in the same case must, as he conceived, be 
 ascribed. That case came before the Court in conse- 
 quence of his opinion, taken by the intended purchaser, 
 in which he had objected to the title on the ground of 
 Shapland's taking only an equitable estate for life, and the 
 limitation to the heirs of his body operating as a contin- 
 gent legal remairider to such heirs ; the equitable and 
 legal estates being incapable of that union which was 
 requisite to vest the latter at cdl in him, or give him an 
 estate-tail of any kind. Baron Eyre inclined against the 
 objection ; but on a re-hearing Lord Thurlow admitted it, 
 and the insufficiency of the recovery depended, as he 
 (Mr. F.) understood, not on the want of a good tenant to 
 the prcecipe, but the want of an estate tail in Shapland. 
 And the report accordingly in the margin states, that 
 it was not an estate tail in C. S. though the report itself 
 makes the Chancellor speak of it as a legal remainder 
 in tail in him. Mr. Fearne concludes by saying, that 
 " therefore he could lay no sort of stress on any vague 
 
 (x) 1 Bro. C. C. 78. 
 (*378)
 
 A PURCHASER MAY REQUIRE. A51 
 
 expressions in such a report.^'' And indeed it seems clear, 
 that the ground of Lord Thurlow's judgment was, the im- 
 possibility of the estates uniting, the one being equitable, 
 and the other legal ; and that his observations on legal 
 and equitable recoveries are mis-stated in the report. 
 A slight emendation will make the sentence, which refers 
 to this doctrine, correct. It may be read thus : " It being 
 necessary, in order to make a good tenant to the prcecipe, 
 (*)that there should be a legal estate for life, where there 
 is [instead of with] a legal reversion in tail ; or an equita- 
 ble estate for life, lohere there is [instead of with] an equi- 
 table reversion in tail." And this sentence, as corrected, 
 by no means implies that a legal tenant for life, for his own 
 benefit, has not an equitable estate for life, sufficient to 
 support an equitable recovery. 
 
 If then we remove this dictum of Lord Thurlow, as it 
 stands in the report, there is no authority in the books in 
 support of the objection. But, on the other hand, we 
 have Lord Alvanley's authority, that where the equitable 
 tenant for life has also the legal estate for life, that is no 
 objection to the recovery. And this observation was not 
 lightly made, for his Lordship repeated it in the course of 
 his judgment(?/). And indeed the very point appears to 
 have been decided in the 16th year of Charles 2d, in a 
 case where a man was legal tenant for life by conveyance ; 
 and afterwards the reversioner and ancestor covenanted, 
 in consideration of blood, to settle the estate on him in 
 tail ; so that in equity he had a trust in tail in the estate. 
 And the Court confirmed a recovery suffered by him, 
 although at the time of suffering it he was but tenant for 
 life in law ; and this although it was objected that he ought 
 first to have exhibited his bill, and have had his estate de- 
 creed to him in tail according to the articles(z). 
 
 (y) Phillips V. Bridges, 3 Ves. jun. 126, 128. 
 
 (c) Goodrick v. Brown, 2 Freem. 180 ; 1 Cha. Ca. 19. 
 
 (*379)
 
 452 
 
 OF THE TITLE WHICH 
 
 But, even admitting this objection, it cannot be ex- 
 tended to a case where the equitable tenant for life, who 
 makes the tenant to the pr<2cipe, is legal tenant in fee. 
 The estates are perfectly distinct. He is not legal and 
 equitable tenant for life, but tenant in fee of the legal 
 estate, and tenant for life of the equitable interest(a). 
 
 (*)This point is still important with reference to reco- 
 veries already suffered, and therefore the discussibn may 
 with propriety retain its place in this treatise. But the 
 whole law as to barring estates tail is by a late statute(6) 
 altered. Fines and recoveries are abolished, and a new 
 mode of unfettering estates in settlement is introduced. 
 As this law will have great influence upon titles, and it 
 must be some time before its provisions can be generally 
 circulatedj it may not be improper to introduce them in 
 this place. 
 
 By the Act referred to, fines and recoveries are 
 abolished after the 31st Decenjber 1833 ; and(c) persons 
 bound after that day by agreement to levy a fine or suffer 
 a recovery, are enabled to perform their contract without 
 actually levying the one or suffering the other. The 
 Act then gives validity to recoveries, although the bargain 
 and sale to make the tenant to the prcecipe was not 
 enrolled in due time(f?) : and no recovery(e) is to be 
 invalid in consequence of any person having a legal 
 estate not having joined in making the tenant to the 
 prcecipe, provided the tenant shall have been made by 
 a person who had an estate in possession not less than 
 for a life, in the rents or surplus after payment of charges 
 thereon, and whether there be any actual surplus or not ; 
 and an estate is to be deemed to be in possession notwith- 
 standing any prior leases for lives or years at a rent, or any 
 
 (a) Marwood v. Turner, 3 P. Wms. 171. 
 
 (6) 3 & 4 W. 4, c. 74. (c) Sec. 3. 
 
 (rf) Sec. 10. (c) Sec. 11. 
 
 (*380) 
 
 I
 
 A PURCHASER MAY REQUIRE. 453 
 
 term of years without rent. But this is confined by cer- 
 tain exceptions in the Actff). The object of these ex- 
 cellent provisions is to render valid recoveries already suf- 
 fered. 
 
 The Act then avoids(^) all warranties by tenant in 
 tail against the issue in tail and persons in remainder. 
 
 (*)The Act then(^) provides, that after the 31st De- 
 cember 1833, every actual tenant in tail, whether in pos- 
 session, remainder, contingency or otherwise, shall have 
 power to dispose of for an estate in fee-simple absolute, 
 or for any less estate, the lands entailed, saving the 
 rights of persons in respect of estates prior to the estate 
 tail. But women who are seised in tail under existing 
 settlements ex provisione viri are prevented from exer- 
 cising such power of disposition without the assent now 
 required by law ; but as to future settlements, the Act of 
 11 H. 7, c. 20, is repealed. But the power of disposi- 
 tion(t) is prevented from extending to tenants in tail 
 within the 34 k, 35 H. 8, or wiio by any other Act are 
 restrained from barring their estates tail, or to tenants in 
 tail after possibility of issue extinct. 
 
 In like manner(A:) after the 31st December 1833, 
 power is given to the persons who would have been 
 tenants in tail if the entail had not been barred and con- 
 verted into a base fee, to dispose of the lands so as to en- 
 large the base fee into a fee-simple absolute, but not to af- 
 fect prior estates. But(/) the Act is not to enable any 
 issue, in respect of his hope of succession, to dispose of 
 the entailed property. 
 
 The Act then(m) makes a disposition by a tenant in 
 tail, by way of mortgage or for any other limited pur- 
 pose, an absolute bar in equity and law to the extent of 
 
 (/) Sec. 12. (g) Sec. 14. 
 
 {h) Sec. 15. (/) Sec. 18. 
 
 (k) Sec. 19 ; and see sec. 39. (/) Sec. 20. 
 (ju) Sec. 21. 
 
 (*381)
 
 454 ^^ "^^^ TITLE WHICH 
 
 the estate created, against all persons who under the Act 
 can be barred, notwithstanding any intention to the con- 
 trary may be expressed or implied in the deed. But 
 notwithstanding any intention, where only an estate pour 
 auter vie, or for years, or an interest, charge, lien or in- 
 cumbrance without a term of years, or any greater estate 
 (*)shall be created, the same shall in equity be a bar only 
 so far as may be necessary to give full effect to the mort- 
 gage or charge. 
 
 As the old tenant to the prcecipe could not be reserved 
 under the new plan, the Act proceeds to create a Protector 
 of every settlement, whose concurrence in barring estates 
 tail in remainder is required, in order to preserve, under 
 certain modifications, the control of the tenant for life over 
 the remainder-men. 
 
 With this view, it is enacted (n), that if at the time 
 when there shall be a tenant in tail under a settlement, 
 there shall be under the same settlement any estate 
 for years determinable on a life, or any greater estate 
 (not being an estate for years) prior to the estate tail, 
 then the owner of the prior or first estate, or who would 
 have been so if no absolute disposition thereof had been 
 made, shall be the protector of the settlement, and shall, 
 for the purposes of the Act, be deemed the owner of 
 such prior estate, although the same may have been 
 charged or incumbered, and although all the rents be 
 exhausted or required for the payment of the incum- 
 brances on such prior estate, and although such prior 
 estate may have been absolutely disposed of by the 
 owner, or by his bankruptcy or insolvency, or by any 
 other act or default of such owner. An estate by the 
 curtesy in respect of the estate tail, or of any prior estate 
 created by the same settlement, is to be deemed a prior 
 estate, and a resulting use or trust to or for the settlor is 
 to be deemed an estate under the same settlement. 
 
 («) Sec. 22. 
 
 (*382)
 
 A PURCHASER MAY REQUIRE. 455 
 
 Provisions are then made(o) for making each owner 
 of an undivided share the protector of such share, and(p) 
 for making the husband and wife the protector in respect 
 of her prior estate, unless her estate shall by the settlement 
 (*)have been settled or agreed to be settled to her sepa- 
 rate use, in which case she alone is to be the protector ; 
 but it is provided((/), that a lease at a rent created or con- 
 firmed by a settlement shall not make the owner of it the 
 protector, nor(?') shall any woman in respect of her 
 dower, nor any bare trustee, heir, executor, administrator, 
 or assign, be the protector, but in such cases(5) the per- 
 son who if such estate did not exist would be the pro- 
 tector shall be such. 
 
 But where before the 31st December 1833, an estate 
 under settlement shall have been disposed of, either for 
 valuable consideration or not, the person who in respect 
 of such estate would, if the Act had not been passed, 
 have been the proper person to make the tenant to the 
 prcecipe, shall, during the continuance of such estate, 
 be the protector of such settlement ; and the Act pro- 
 vides(i) for the case of a disposition of a remainder or 
 reversion in fee on or before the 31st December 1833, 
 and preserves to a bare trustee under any existing set- 
 tlement, who would have been the proper person to make 
 the tenant to the precipe, the right as the protector of 
 such settlement(w). 
 
 Power is given(a:), under certain restrictions, to every 
 settlor to appoint protectors of his settlement ; and the 
 Act substitutes(i/) the Lord Chancellor in the place of a 
 protector who shall be a lunatic, and the Court of Chan- 
 
 Co) Sec. 23. (p) Sec. 24. 
 
 (q) Sec. 26 ; and see sec. 26. (r) Sec. 27. 
 
 (s) Sec. 28. {I) Sec. 30. 
 
 (k) Sec. 31. (.r) Sec. 32. 
 
 (i/) Sec. 33, & sec. 48, 49. 
 
 (*383)
 
 J^^Q OF THE TITLE WHICH 
 
 eery in the place of a protector who shall be convicted 
 of treason or felony, or of a protector, not being the 
 owner of a prior estate, who shall be an infant, or where 
 it shall be uncertain whether such last-mentioned person 
 be living or dead. The Court of Chancery is also substi- 
 tuted (*)where the settlor declares that the person who as 
 owner of a prior estate under such settlement, would 
 be entitled to the protector shall not be such protector, 
 and does not appoint any protector in his stead. And 
 also in every other case where there shall be, under 
 a settlement, a prior estate sufficient to qualify a protec- 
 tor, and there shall happen to be no protector, the Court 
 of Chancery is to be the protector. 
 
 Having thus provided who shall be the protector, the 
 Act then proceeds to declare in what cases his concur- 
 rence shall be necessary. 
 
 No actual tenant in tail(2), not having the remainder 
 or reversion in fee immediately expectant on his estate 
 tail, under a settlement where there is a protector, can 
 dispose of the estate to the full extent authorized by the 
 Act, without the consent of the protector, but he may 
 without such consent dispose of the estate against all 
 persons who by force of any estate tail which shall be 
 vested in or might be or have been claimed by him, shall 
 claim the lands. And(«) although the estate be converted 
 into a base fee, yet as long as there is a protector of the 
 settlement, his consent is requisite to the power of dispo- 
 sition given by the Act. 
 
 The power of the protector to consent is made absolute ; 
 his discretion is absolute and uncontrollable even by a 
 court of equity. Nor can his giving his consent be deemed 
 a breach of trust(6). Nor are the rules of equity in rela- 
 tion to dealings and transactions between a donee of a 
 
 (s) Sec. 34. (a) Sec. 35. (6) Sec. 36. 
 
 (*384) 
 
 I
 
 A PURCHASER MAY REQUIRE. A57 
 
 ■power and any object of the power in whose favor the 
 same may be exercised, to apply to this case(c). 
 
 If a base fee and the remainder or reversion in fee be 
 united in the same person, and there shall be no inter- 
 mediate (*)estate between them, the base fee shall heipso 
 facto enlarged into as large an estate as the tenant in tail, 
 with the consent of the protector, might have created 
 under the Act, if such remainder or reversion had been 
 vested in any other person(r/). 
 
 The Act then proceeds to provide by what conveyances 
 a tenant in tail shall convey. Every disposition is to be 
 effected by some one of the assurances (not being a will) 
 by which such tenant in tail could have made the dis- 
 position of his estate if a fee-simple absolute ; but it must 
 be made or evidenced by deed. No disposition by a ten- 
 ant in tail, resting only in contract either express or impli- 
 ed or otherwise, and whether supported by a valuable or 
 meritorious consideration or not, shall be of any force, 
 nothwithstanding such disposition shall be made by deed. 
 And the concurrence of the husband of every married 
 woman being a tenant in tail, is made necessary(e). 
 
 The protector is authorized to give his consent by the 
 same assurance which effects the disposition, or by a se- 
 parate instrument. If given by a separate instrument, it 
 is to be deemed an unqualified consent, unless the partic- 
 ular assurance is referred to, and his consent confined to 
 that disposition. After having given his consent, he can- 
 not revoke 'it(f). A married woman being a protector, 
 either alone or jointly with her husband, may consent as 
 a feme sole. 
 
 The dispositions and consents are not to operate un- 
 less valid in law, for the jurisdiction of equity is altoge- 
 ther excluded(^). 
 
 (c) Sec. 37. 
 
 (d) Sec. 39. 
 
 (c) Sec. 40. 
 
 (/) Sec. 42, 43, 44, 45. 
 
 (g-) Sec. 47. 
 
 
 VOL. I. 
 
 58 
 
 (*385)
 
 458 
 
 OF THE TITLE WHICH 
 
 Copyholds are within the Act, but surrenders are to be 
 made by legal tenants in tail, and surrenders or deeds to 
 be made or executed by equitable tenants in tail(/t). 
 And the mode in which the protectors are to consent is 
 (*)particulaily pointed out(z) ; but it is provided, that 
 every deed by which copyholds are disposed of by an 
 equitable tenant in tail, shall be void against any person 
 claiming such lands for valuable consideration, under any 
 subsequent assurance duly entered on the court rolls, 
 unless the deed by the equitable tenant be entered on 
 the rolls before the subsequent assurance shall have been 
 entered. 
 
 The Act then alters the laws as to bankrupt tenants in 
 tail, and gives to the Commissioners a power to alien 
 upon the basis of the provisions in the Act, in favor of 
 solvent tenants in tail(A:). 
 
 And it also repeals the law for relieving persons en- 
 titled to entailed estates to be purchased with trust- 
 monies, and applies to the estates to be sold and the 
 monies to be invested (which are treated as if they were 
 the lands to be purchased) the general provisions of the 
 Act(0. 
 
 The Act then(m) contains a provision of great impor- 
 tance. Every married woman not being tenant in tail, is 
 enabled by deed to dispose of lands of any tenure, and 
 money subject to be invested in lands, and also to dis- 
 pose of, release, surrender, or extinguish any estate which 
 she alone, or she and her husband in her right, may have 
 in lands of any tenure, or in any such money ; and also to 
 release or extinguish any power which may be vested in 
 or limited or reserved to her in regard to any lands of any 
 tenure, or in any such money, as effectually as if she were 
 a feme sole ; but her husband must concur, and the deed 
 
 (h) Sec. 50 & 53. (i) Sec. 51, 62, 53. (A) Sec. 55. to sec. 69. 
 
 (/) Sec. 70, 71. (m) Sec. 77. 
 
 (*386)
 
 A PURCHASER MAY REQUIRE. ^^g 
 
 uiList be acknowledged in tlie manner required by the 
 Act, and the provision is not to extend to copyholds in 
 cases where the power is not required. 
 
 The Act also contains provisions as to lands in ancient 
 (*)demesne, renders amendments of fines and recoveries 
 unnecessary, points out the manner in w^hich deeds, con- 
 sents and assurances are to be inroUed, and contains cer- 
 tain provisions in favor of purchasers, which latter provi- 
 sions will be found in their proper place in this work(/i). 
 
 The sweeping away of fines and recoveries is a solid 
 improvement in the law, and the Act of parliament is a 
 masterly performance, and reflects great credit on the 
 learned conveyancer by whom it was framed. But the 
 policy of the provisions in the Act may be doubted. 
 AH men's titles must for many years depend upon the 
 law of fines and recoveries ; and few will be found in 
 a short time competent to judge of their validity. The 
 substitute for the old law is one of vast complication, in- 
 troducing a protector in every settlement to check the 
 alienation by tenant in tail in remainder. Whilst we 
 brush away our old books, no one can doubt that the new 
 system, from its complication, will lay the foundation 
 for new ones, and that the construction of the Act in 
 every given case will not be settled but after a long run 
 of litigation, although no doubt, at first, every thing will 
 .l)roceed smoothly. The Author was one of those who 
 thought that tlie law would have been more simple if it 
 had merely abolished fines and recoveries, and made 
 deeds to declare the uses of fines, and to make tenants 
 to the prcecipe in recoveries effectual without actually 
 levying a fine or suffering a recovery. 
 
 The Act has effected an important alteration in the law, 
 by making the tenant for life continue to be the protector 
 of a settlement even after he has sold the estate, or it has 
 
 (n) Infra, ch. 16, s. 7. 
 
 (*387)
 
 4(30 - '■^^^ '^"1^^ TITLE WHICUl 
 
 passed from him by bankruptcy or insolvency. This 
 appears to be unwise. For the Act takes away the con- 
 trol of equity over the protector ; declares that his discre- 
 tion (*)is absolute ; that he cannot commit a breach of 
 trust ; and that the doctrines of equity applicable to a do- 
 nee of a power dealing with an object of the power are 
 not to be applied to him. He may, therefore, make what 
 bargain he pleases with the tenant in tail after the natu- 
 ral check (for such the possession of the first estate may 
 fairly be considered) has been conveyed away. In the 
 case of a bankrupt, he may acquire a great property as 
 against his creditors, and a case may occur in which he 
 may by his concurrence enable the first tenant in tail to 
 bar a subsequent remainder vested by his bankruptcy in 
 his own assignees. 
 
 V. It so often becomes necessary to consider in what 
 cases an uninterrupted possession creates a title, that the 
 introduction of a iew general observations on the opera- 
 tion of the statutes of limitations, may not be deemed 
 impertinent. 
 
 1. Then the statutes of limitations operate by way of 
 bar to the remedy, and not, like the statutes of fines, as a 
 bar to the right(o). Therefore, although a person is 
 barred of one remedy, yet he may pursue any other re- 
 medy which may afterwards accrue to him. Thus, where 
 a tenant in tail discontinued for three lives, and the issue 
 in tail was barred of his fqrmedon by the 21 Jac. ^-(p) ; 
 afterwards by the death of the three tenants for life, 
 a right of entry accrued to the issue, who entered, and his 
 entry was held lawful(9'). 
 
 (o) See Beckford v. Wade, 17 Ves. jun. 87. 
 (p) Ch. 16. 
 
 \q) Hunt I'. Bourne, Lutw. 781 ; 2 Salk. 422 ; Corn. 124 ; 1 Bro. 
 P. C. 63. 
 
 (*38S) 

 
 A PURCHASER MAY REQUIRE. ^(^J 
 
 2. It has frequently been thought that the rights of 
 infants, femes covert, persons in prison, and beyond sea, 
 are saved by the act of 32 Hen. 8.(r) ; but on examin- 
 ation (*)it will appear, that the savings extended only to 
 persons who labored under any of those disabilities at 
 the time the statute was made(s'), (I). 
 
 3. The saving clause in the act of James(II) only ex- 
 tends to the persons on whom the right first decends ; 
 and therefore, when the time once begins to run, nothing 
 can stop it(i)(217). So that on the death of a person in 
 whose life the time first began to run, his heir must enter 
 within the residue of the ten years, although he labored 
 under a disability at the death of his ancestor. 
 
 In the late case of Cotterell v. DuUon(u), a tenant in 
 tail died, leaving the issue in tail a feme covert who died 
 under coverture and left issue two sons, both infants ; the 
 eldest attained twenty-one and died without issue, leaving 
 
 (»•) Ch. 2. 
 
 (s) See Bro. Reading, p. 60. 
 
 {t) Doe V. Jones, 4 T. Rep. 300 ; Cotterell v. Dutton, 4 Taunt. 826. 
 
 (m) 4 Taunt. 826. 
 
 (I) In even the last edition of Bacon's Abridgment, it is stated gen- 
 erally, that the act of 32 Hen. VITI. hath the usual saving for infants, 
 femes covert, persons in prison, and beyond the sea. 
 
 (II) JVole, Dublin, or any other place in Ireland, is a place within the 
 meaning of the saving of the rights of persons beyond the seas. Anon. 
 
 1 Show. 90. 
 
 (217) See Boiv v. Warren, 6 Mass. Rep. 328. Bunce v. Wolcott, 
 
 2 Conn. Rep. 27. Griswold v. Butler, 3 Conn. Rep. 227. and see 
 Biish V. Bradley, 4 Day, 298. Sanford v. Butlon, 4 Day, 310. See 
 also, Pech v. Randall, 1 Johns. Rep. 165. HaWsLies. v. Vandegriff, 
 
 3 Binn. 374. Demurest v. IVijncoop, 3 Johns. Ch. Rep. 129. Jf'al- 
 den V. Gratz' heirs, 1 "Wheat. 292, 296. Hudson v. Hudson, 6 Munf. 
 352. Denv. Mulford, 1 Hayw. 311. .Inon. Id. 416. Pearce v. 
 House, 2 Tayl. 305. Faijsoux v. Prather, 1 Nott & M'Cord, 296. 
 -Rdamson v. Smith, 2 Rep. Con. Ct. 269. Eager v. The Common- 
 wealth, 4 Mass. Rep. 182. Mooers v. White, 6 Johns. Ch. Rep. 372. 
 
 (*389)
 
 462 
 
 OF THE TITLE WHICH 
 
 his brother under age, who did not sue forth his writ of 
 formedon within ten years after he attained twenty-one, 
 and more than twenty years had elapsed after the right 
 had first descended. It was held that he was barred by 
 the statute. The ground of this decision was, that the 
 time began to run against the eldest son when he at- 
 tained twenty-one, and no subsequent disability could 
 stop it ; therefore he and his heirs had only ten years 
 from his attainment of twenty-one. This case overruled 
 a notion which had been entertained by some, that issue 
 in tail have distinct and successive rights under the 
 statute, and were not to be barred like the heirs of fee- 
 simple estates. This, however, was decided otherwise. 
 (*)Mr. Justice Heath said, that there was no such differ- 
 ence between the issue in tail and other heirs, as was sup- 
 posed ; formedon in the descender was expressly men- 
 tioned in the first clause of the statute : and the point 
 was expressly decided in the same way in the later case 
 of Tolson V. Kaye(.r). 
 
 In the case of a fine, it was formerly thought, that if a 
 person died under a disability, his heir was excepted out 
 of the statute of fines, by the proviso(i/) ; although the 
 contrary has been determined by a modern case(2^). In 
 the statute of James, the Legislature being aware of this 
 point, expressly provided for the death of the person to 
 whom the Jirst right should descend ; and, therefore, 
 where a person to whom the right first descended, dies 
 under a disability, his heir must enter within ten years 
 after his death(«)(218). 
 
 (x) 3 Brod. & Bing. 217. 
 
 [y) See Cruise on Fines, 258, and the cases there cited. 
 
 (z) Dillon V. Leman, 2 11. Black. 684. 
 
 (a) Sec Jenkins, 4 Cent. pi. 97 ; Doe v. Jesson, 6 East, 80. 
 
 (218) See Sniilk v. Biulls, 9 Johns. Rep. 181. Demarcst v. fVtjn- 
 cooj), 3 Johns. Ch. Rep. 136, 137. 
 (*390)
 
 A PURCHASER MAY REQUIRE. ^go 
 
 In the case of Doe v. Jesson(6), the person upon whom 
 the right first descended was presumed to have died in 
 1785, under a disability, leaving his heir also under a 
 disability. The disability ceased in 1792, but the eject- 
 ment was not brought till 1804; more than twenty years 
 had elapsed since the death of the person last seised, 
 and more than ten years had elapsed after the cesser 
 of the disability of the plaintiff; and the Court deter- 
 mined that the ejectment was out of time. Lord Ellen- 
 borough held that the person through whom the lessor of 
 the plaintiff claimed, being under a disability at his 
 father's death, when his title first accrued, and dying 
 under that disability, the proviso in the second clause of 
 the statute (where resort is to be had to it, to extend the 
 period for making an entry beyond the twenty years) 
 (*)required the lessor of the plaintiff, as heir to her brother, 
 to make her entry within ten years after his death. The 
 word death in that clause must mean and refer to the 
 death of the person to whom the right first accrued, and 
 whose heir the claimant is, and the statute meant that the 
 heir of every person, to which person a right of entry 
 had accrued during any of the disabilities there stated, 
 should have ten years from the death of his ancestor, to 
 \Ahom the right first accrued during the period of dis- 
 ability, and who died under such disability (notwith- 
 standing the twenty years from the first accruing of the 
 title to the ancestor should have before expired). Mr. 
 Justice Lawrence also gave his opinion that the ten years 
 to the heir run from the death of the party dying under 
 the disabilit3\ 
 
 It will appear that it was not necessary for the Court 
 to decide from what period the ten years should run ; for 
 more than ten years had elapsed from the time the heir 
 who brought the ejectment attained twenty-one, when 
 
 (6) 6 East, 80. 
 
 (*391)
 
 ^g^ OF THE TITLE WHICH 
 
 her disability ceased. In the late case of Cotterell v. 
 Duttoii(c), where this doctrine was stated, the Court was 
 of opinion that the heir has ten years after the disability 
 ceases, not from the death of the ancestor who died under 
 a disability. " The ten years do not run at all while there 
 is a continuance of disabilities"(219). This certainly 
 appears to be the true construction of the statute, and it 
 is the construction which has invariably been adopted in 
 practice. 
 
 It seems that where no account can be given of a per- 
 son within the exceptions in the Act, he will be presumed 
 to be dead at the expiration of seven years from the last 
 account of him(6?). 
 
 The disability of one coparcener will not preserve the 
 (*)title of the other, who must enter within twenty years 
 after the title accrues, although during the whole time 
 her coparcener labored under a disability(e)(220). 
 
 4. It is generally conceived, that a possession for sixty 
 years creates a good title against all the world. Thus 
 Judge Jenkins^/) lays it down, without qualification, 
 " that a peaceable possession for sixty years makes a 
 right; for 21 Jac. 1. c. 16, takes away the entry and 
 assize ; 32 Hen. 8, takes away the writ of right and 
 the formedon." So Mr. Justice Blackstone says(o-), " that 
 the possession of lands in fee-simple and uninterruptedly 
 for sixty years, is at present a sufficient title against all 
 
 (c) 4 Taunt. 826. 
 
 (d) Doe V. Jesson, uhi sup. 
 
 (e) Roe V. Rowlston, 2 Taunt. 441. 
 (/) 1 Cent. pi. 49. 
 
 {g) 3 Com. 196. 
 
 (219) See Jackson v. Sellick, 8 Johns. Rep. 202. 2d edit. 
 
 (220) See Sanford v. Button, 4 Day, 310. The rule is the same in 
 respect to tenants in common. Doolitth v. Blakesley, 4 Day, 265, 465. 
 Bi-yan v. Hinman, 5 Day, 211. See Riden v. Frion, 2 Murph. 577. 
 
 (*392)
 
 A PURCHASER MAY REQUIRE. ^5 
 
 til!.' world, and cannot be impeached by any dormant 
 claim whatsoever"(221). This, however, Mr. Christian 
 remarks, in a note to the above passage, is far from being 
 universally true ; for an uninterrupted possession for 
 sixty years will not create a title, where the claimant or 
 demandant had no right to enter within that time ,• as 
 where an estate in tail, for life, or for years, continues 
 above, sixty years, still the reversioner may enter and 
 recover the estate. 
 
 Perhaps this remark is not sufficiently pointed. Black- 
 stone certainly did not mean, that the lawful possession, 
 during sixty years, of a tenant in tail, for life, or for years, 
 would operate as a bar to the reversioner's title, but he 
 alluded to a clear adverse possession for sixty years. 
 
 However, even in this light, his position admits of ex- 
 ceptions. It is possible that an estate may be enjoyed 
 adversely for hundreds of years, and may at last be re- 
 covered by a remainder-man. For instance, suppose an 
 estate to be limited to one in tail, with remainder over to 
 another in fee, and the tenant in tail to be barred of his 
 (*)remedy by the statutes of limitations, it is evident that, 
 as his estate subsists, the remainder-man's right of entry 
 cannot take place until the failure of issue of the tenant 
 in tail, which may not happen for an immense number of 
 years. 
 
 This doctrine is illustrated by the great case of Taylor 
 i\ Horde(/i), where an estate was settled on several per- 
 sons successively in tail ; remainder to A. in fee ; and one 
 of the remainder-men in tail, being out of possession, 
 brought an ejectment, which was held to be barred by the 
 statute of limitations. Afterwards all the tenants in tail 
 died without issue, and the then heir at law of A. brought 
 an ejectment, within twenty years from the time his 
 
 {h) 1 Burr. 60 ; 5 Bro. P. C. 247 ; Cowper, 689. 
 
 (221) ^ee Morris' Les. v. randeren, 1 Dall. G7. 
 
 VOL. I. 59 (*.393)
 
 466 
 
 OF THE TITLE WHICH 
 
 remainder fell into possession, and he recovered the 
 estate(222). 
 
 6. After passing the act of 32 Henry 8, and before 
 that of the 21 Jac. 1, although a man had been out of 
 possession of land for sixty years, yet if his entry was not 
 tolled, he might enter and bring an action of his own pos- 
 session («). Some writers have thought this still to be 
 law(A;), but the rule in this respect was altered by the 
 statute of James; by which no person can now eiiter 
 except within twenty years after his title accrues. 
 
 6. The rule in equity, that the statute of limitations 
 does not bar a trust-estate, holds only as between cestui 
 que trust and trustee, not between cestui que trust and 
 trustee on one side, and strangers on the other(223) ; for 
 that would be to make the statute of no force at all, be- 
 cause there is hardly an estate of consequence without 
 such a trust, and so the act would never take place. 
 
 Therefore, where a cestui que trust and his trustee are 
 (*)both out of possession for the time limited, the party 
 in possession has a good bar against both(/)(224). 
 
 7. Although the statute cannot, as between the trustee 
 and cestui que trust, operate as a bar to the latter, yet the 
 
 (i) See Bevill's case, 4 Co. lib. 
 
 (h) See Wood's Inst. 657 ; and Christian's note to 3 Black. Com. 196. 
 
 (/) Per Lord Hardwicke, in casu Llewellyn v. Mackworth, Barnard. 
 Rep. Cha. 445 ; 16 Vin. Abr. 125, n. to pi. 1 ; and see Townsend v. 
 Townsend, 1 Bro. C. C. 550 ; Clay v. Clay, 3 Bro. C. C. 639, n. ; 
 Ambl. 645 ; Hercy v. Ballard, 4 Bro. C. C. 469 ; and Harmood u. 
 Oglander, 6 Yes. jun. 199 ; 8 Ves. jun. 106 ; Hovenden v. Lord An- 
 nesley, 2 Scho. & Lef. 629. 
 
 (222) See Jackson \. Schoonmaker, 4 Johns. Rep. 390. 402, HalVs 
 Les. V. Vandegrift, 3 Binn. 374. 
 
 (223) See Wamburzee v. Kennedy, 4 Des. 474. Decouche v. Save- 
 tier, 3 Johns. Ch. Rep. 190. Goodrich v. Pendleton, 3 Johns. Ch. 
 Rep. 384. 
 
 (224) See Decouche v. Saveiier, 3 Johns. Ch. Kep. 216. Goodrich 
 V. Pendleton, 3 Johns. Ch. Rep. 390. Gist v. Cattell, 2 Des. 53. 
 
 (*394)
 
 A PURCHASER MAY REQUIRE. ^g-y 
 
 trustee may, in some cases, be barred by the possession 
 of the cestui que trusty or those claiming mider him(77i), 
 A cestui que trust is as a tenant at will to the trustee, and 
 his possession is the possession of the trustee(?i) ; and 
 therefore, unless under very particular circumstances, time 
 could not operate as a bar(o). Where a cestui que trust 
 sells or devises the estate, and the vendee or devisee 
 obtains possession of the title-deeds, and enters, and does 
 no act recognising the trustee's title, there is great reason 
 to contend that this is a disseisin of the trustee, and, con- 
 sequently, that the statute will operate from the time of 
 such entry. This is a point which daily occurs in prac- 
 tice ; but it rarely happens, that a purchaser can be ad- 
 vised to dispense with the conveyance of a legal estate, 
 where the defect will appear on the abstract when he 
 sells. And where there has been any dealing on the legal 
 estate, and it has been recently noticed in the title-deeds 
 as a subsisting interest, it is clear that a purchaser must 
 consider it as such(j9). 
 
 8. The statutes of limitations certainly cannot operate 
 as between cestuis que trust ; but it seems that equity, in 
 (*)analogy to the statute, will hold time a har(q) ; and 
 indeed that equitable rights in general will, by the like 
 analogy, be affected by time in the same manner as legal 
 estates(r)(225). 
 
 (m) See Lord Portsmouth v. Lord Effingham, 1 Ves. 430 ; Har- 
 mood V. Oglander, 6 Ves. jun. 199; 8 Ves. jun. 106. See 2 Mer. 
 360. 
 
 (n) See 1 Ventr. 329. 
 
 (o) See 3 Mod. 149 ; Earl of Pomfret v. Lord Windsor, 2 Ves. 
 472 ; Keene v. Deardon, 8 East, 248 ; Smith v. King, 16 East, 283. 
 
 (p) See Goodtitle v, Jones, 7 Term Rep. 47. 
 
 {q) See Harmood v Oglander, ubi stip. 
 
 (r) See 1 Atk.476 ; and Stackhouse v. Barnston, 10 Ves. jun. 466 ; 
 
 (225) See Arden v. Ardcn, 1 Johns. Ch. Rep. 313. Decouchc v. 
 Savdicr, 3 Johns. Ch. Rep. 190. 
 
 (*395)
 
 ^gg OF THE TITLE WHICH 
 
 This is exemplified, in some degree, by the rules re- 
 specting an equity of redemption, which is a mere creature 
 of the Court(5). 
 
 In Clay v. Clay(^), Lord Camden laid down this doc- 
 trine very clearly. He said, " as often as Parliament has 
 limited the time of actions and remedies, to a certain pe- 
 riod, in legal proceedings, the Court of Chancery adopt- 
 ed that rule, and applied it to similar cases in equity (226). 
 For when the Legislature has fixed the time at law, it 
 would have been preposterous for equity (which by its 
 own proper authority always maintained a limitation) to 
 countenance laches beyond the period that law had been 
 confined to by Parliament. And therefore, in all cases 
 where the legal right has been barred by Parliament, the 
 equitable right to the same thing has been concluded by 
 the same bar." 
 
 In Beckford v. Wade(w), Sir William Grant, in deli- 
 vering judgment, said, that it is certainly true that no 
 time bars a direct trust as between cestui que trust and 
 trustee ; but if it was meant to be asserted that a court 
 of equity allows a man to make out a case of constructive 
 trust, at any distance of time after the facts and circum- 
 stances (*)happened out of which it arises, he was not 
 aware that there was any ground for a doctrine so fatal 
 to the security of property as that would be ; so far from 
 it, that not only in circumstances where the length of time 
 would render it extremely difficult to ascertain the true 
 
 Hovenden v. Lord Annesley, 2 Scho. & Lef. 630 ; Lord Egremont 
 v. Hamilton, 1 Ball & Beatty, 516. 
 
 (s) White V. Ewer, 2 Ventr. 340 ; Pearson r. Pulley, 1 Cha. Ca. 
 109 ; Jenner v. Tracey, and Belch v. Harvey, 3 P. Wms. 287, n. 
 See a full note of this case, Appendix, No. 16. 
 
 (t) 3 Bro. C, C. 639, n. ; Ambl. 645 ; and see Ex parte Dewdney, 
 15 Ves. jun. 496 ; Medlicott v. O'Donel, 1 Ball & Beatty, 156. 
 
 (u) 17 Ves. jun. 97. See 2 Hargr. Jur. Exc. p. 394. 
 
 (226) See Demarestv. Wijncoop, 3 Johns. Ch. Rep. 129. 
 
 (*396)
 
 A PURCHASER MAY REQUIRE. ^gg 
 
 state of the fact, but where the true state of the fact is 
 easily ascertained, and where it is perfectly clear that 
 relief would originally have been given upon the ground 
 of constructive trUst, it is refused to the party who, after 
 long acquiescence, comes into a court of equity to seek 
 that relief(227). 
 
 And it seems that even in cases of fraud, where the 
 facts constituting the fraud are known, where there is no 
 subsisting trust or continuing influence, the same princi- 
 ple will apply (a:) (228.) 
 
 It was held by Sir William Grant, that whilst the 
 equity of redemption subsists, the question to whom it 
 belongs must remain open : and therefore mere possession 
 without title would not give any person a right to re- 
 deem(3/)(229). The,right belonged to him who showed a 
 title, although he had been out of possession upwards of 
 twenty years. But Sir Thomas Plumer decided other- 
 wise, and his decision was affirmed in the House of 
 Lords(z), And it seems that unless in the case of dis- 
 ability, twenty years adverse possession is a bar to relief 
 in equity(a). 
 
 The legal provisions have been so strictly adhered to, 
 that persons laboring under any of the disabilities spe- 
 cified in the statute of limitations, have been allowed the 
 
 {x) 1 Ball & Beatty, 166. 
 {y) Cholniondeley r. Clinton, 2 Mer. 173. 
 
 (z) 2 Jac. & Walk. 1, 189 n. ; and see Tweddell v. Tweddell, 1 
 Turner, 11, 12. 
 
 (a) See Price v. Copner, 1 Sim. & Stu. 347. 
 
 (227) See Gist v. CalteWs heirs, 2 Des. 53, 65. Wamhurzee v. 
 Kennedy, 4 Des. 474, 479. Spotsn'ood v. Dundridge, 4 Hen. & Munf. 
 139. Redu'ood v. Reddick, 4 Munf. 225. 
 
 (228) See Wamburzee v. Kennedy, 4 Des. 479, Cook v. Darby, 4 
 Munf. 444. 
 
 (229) See Grant v. Duanc, 9 Johns. Rep. 591. on appeal.
 
 470 
 
 OF THE TITLE WHICH 
 
 same as they would be entitled to in the case of a legal 
 claim(6)(230). 
 
 (*)9. These observations may be closed by observing, 
 that few cases occur in which a title depending on the 
 statute of limitations can be recommended. The bare 
 receipt of rent is no ouster, for it is a contradiction in 
 terms, that a man by wrong should have my right(c) ; 
 so the non-payment of rent is no ouster, and therefore the 
 operation of the statute must frequently be prevented by 
 the existence of a lease granted by the person whose in- 
 terest, or the interest of persons claiming under him, is 
 wished to be barred. So(c^) there may be a case where 
 the circumstance of concealing a deed shall prevent the 
 statute from barring ; but then it must be a voluntary and 
 fraudulent detaining ; for to say that merely having an 
 old deed in one's possession shall deprive a man of the 
 benefit of the act, is going too far, and would be a harsh 
 
 (6) Lytton v. Lytton, 2 Bro. C. C. 441. Two cases on this point were 
 for a long time depending, Pimm v. Goodwin, before Lord Eldon, and 
 Blake's case before Lord Manners, in Ireland. See 2 Mer. 240 ; 
 Blake v. Foster, 2 Ball & Beat. 565 ; Harrison v. HoUins, 1 Sim. & 
 Stu. 471. 
 
 (c) Gilb. Ten. 97. See ace. Goodright v. Jones, Cruise on Fines, 
 3d edit. 295 ; Doe v. Danvers, 7 East, 299 ; and see Orrell v. Mad- 
 dox, Runnington's Eject. 458 ; Saunders v. Lord Annesley, 2 Scho. & 
 Lef. 73. See and consider Hovenden v. Lord Annesley, 2 Scho. & 
 Lef. 623. 
 
 (d) Per Lord Hardwicke in casu Llewellyn v. Mackworth, Barnard. 
 Rep. Cha. 445 ; 15 Vin. Abr. 126, pi. 8 ; 2 Eq. Ca. Abr. 679, pi. 9 ; 
 and see Dormer v. Parkhurst, 3 Atk. 124. See also Snell v. Silcock, 
 
 5 Ves. jun. 469 ; Bowles v. Stewart, 1 Schoale's & Lefroy's Rep. 
 209 ; Bond v. Hopkins, ib. 413 ; Hovenden v. Lord Annesley, 2 Scho. 
 
 6 Lef. 607. 
 
 (230) The construction of the statute of limitations is the same in 
 equity as at law. See Demarest v. Wyncoop, 3 Johns. Ch. Rep. 129, 
 139. Lamar v. Jones, 3 Har. & M'Hen. 329. Kane v. Bloodgood, 
 
 7 Johns. Ch. Rep. 90. 
 
 (*397)
 
 A PURCHASER MAY REQUIRE. 4-7 1 
 
 construction of a statute made for the quieting of pos- 
 sessions. 
 
 Thus the law stood before the late important Act of 
 3 &. 4 Wil. 4, c. 27. It is seldom possible to understand 
 a law which repeals a former one and substitutes new 
 provisions, unless we have a competent knowledge of the 
 law repealed. It has, therefore, independently of the 
 (*)savings in the Act, been thought useful to retain the 
 foregoing short account of the old law as a fit introduc- 
 tion to the new one. 
 
 By the Act referred to it is enacted, that after the 31st 
 day of December 1833, no person shall make an entry or 
 distress or bring an action to recover any land or rent, but 
 within tiventy years next after the time at which the 
 right to make such entry or distress or to bring such 
 action shall have first accrued to some person through 
 whom he claims ; or if such right shall not have accrued 
 to any person through whom he claims, then ivithin twenty 
 years next after the time at which the right to make such 
 entry or distress or to bring such action shall have first 
 accrued to the person making or bringing the same(I). 
 
 (I) The words and expressions hereinafter mentioned, which in 
 their ordinary signification have a more confined or a different mean- 
 ing, shall in this Act, except where the nature of the provision or 
 the context of the Act shall exclude such construction, be interpreted 
 as follows ; (that is to say,) the word " land" shall extend to manors, 
 messuages, and all other corporeal hereditaments whatsoever, and also 
 to tithes (other than tithes belonging to a spiritual or eleemosynary 
 corporation sole), and also to any share, estate, or interest in them or 
 any of them, whether the same shall be a freehold or chattel interest, 
 land whether freehold or copyhold, or held according to any other 
 tenure ; and the word " rent" shall extend to all heriots, and to all 
 services and suits for which a distress may be made, and to all annui- 
 ties and periodical sums of money charged upon or payable out of any 
 land (except moduses or compositions belonging to a spiritual or 
 eleemosynary corporation sole) ; and the person through whom another 
 
 (*398)
 
 ^^2 OF THE TITLE WHICH 
 
 (*)Aiid it is enacted, that in the construction of the Act 
 the right to make an entry or distress or bring an action 
 to recover any land or rent shall be deemed to have first 
 accrued at such time as hereinafter is mentioned ; (that is 
 to say) 
 
 1. When the person claiming such land or rent, or 
 some person through whom he claims, shall, in respect 
 of the estate or interest claimed, have been in possession 
 or in receipt of the profits of such land, or in receipt of 
 such rent, and shcdl while entitled thereto have been dis- 
 possessed, or have discontinued such possession or receipt, 
 then such right shall be deemed to have j^r5^ accrued at 
 the time of such dispossession or discontinuance of pos- 
 session, or at the last time at which any such profits or 
 rent were or was so received. 
 
 2. And when the person claiming such land or rent shall 
 claim the estate or interest of some deceased person ivho 
 shall have continued in such possession or receipt in respect 
 of the same estate or interest until the time of his death, 
 and shall have been the last person entitled to such estate 
 or interest who shall have been in such possession or re- 
 ceipt, then such right shall be deemed to have first 
 accrued at the time of such death. 
 
 person is said to claim shall mean any person by, through, or under, or 
 by the act of whom, the person so claiming became entitled to the 
 estate or interest claimed, as heir, issue in tail, tenant by the curtesy 
 of England, tenant in dower, successor, special or general occupant, 
 executor, administrator, legatee, husband, assignee, appointee, devisee, 
 or otherwise, and also any person who was entitled to an estate or in- 
 terest to which the person so claiming, or some person through whom 
 he claims, became entitled as lord by escheat ; and the word " person" 
 shall extend to a body politic, corporate, or collegiate, and to a class 
 of creditors or other persons, as well as an individual ; and every word 
 importing the singular number only shall extend and be applied to 
 several persons or things as well as one person or thing ; and every 
 word importing the masculine gender only shall extend and be applied 
 to a female as well as a male ; sect. 1. 
 (*399)
 
 A PURCHASER MAY REQUIRE. ^^3 
 
 3. And when the person chiiming such land or rent shall 
 claim in respect of an estate or interest in possession 
 granted, appointed, or otherwise assured by any instrument 
 (other than a will) to him, or some person though whom 
 he claims, by a person being in respect of the same estate 
 or interest in the possession or receipt of the profits of the 
 land, or in the receipt of the rent, cmd no person entitled 
 under such instrument shall have been in such possession 
 or receipt, then such right shall be deemed to have frst 
 (*)accrued at the time at which the person claiming as 
 aforesaid, or the person through whom he claims, be- 
 came entitled to such possession or receipt by virtue of 
 such instrument. 
 
 4. And when the estate or interest claimed shall have 
 been an estate or interest in reversion or remainder, or 
 other future estate or interest, and no person shall have 
 obtained the possession or receipt of the profits of such land 
 or the receipt of such rent in respect of such estate or 
 interest, then such right shall be deemed to have first 
 accrued at the time at which such estate or interest be- 
 came an estate or interest in possession. 
 
 5. And when the person claiming such land or rent, or 
 the person through whom he claims, shall have become 
 entitled by reason of any forfeiture or breach of condition, 
 then such right shall be deemed to have first accrued 
 when such forfeiture was incurred or such condition was 
 broken (e). 
 
 6. But when any right to make an entry or distress 
 or to bring an action to recover any land or rent by 
 reason of any forfeiture or breach of condition shall have 
 
 first accrued in respect of any estate or interest in rever- 
 sion or remainder, and the land or rent shall not have 
 been recovered by virtue of such right, the right to make 
 an entry or distress or bring an action to recover such 
 
 {e) Sec. 3. 
 
 VOL. I. 60 (*400)
 
 474 
 
 OF THE TITLE WHICH 
 
 land or rent shall be deemed to have first accrued in 
 respect of such estate or interest at the time when the 
 same shall have become an estate or interest in posses- 
 sion, as if no such forfeiture or breach of condition had 
 happened (/^. 
 
 7. And a right to make an entry or distress or to bring 
 an action to recover any land or rent shall be deemed to 
 have first accrued, in respect of an estate or interest in 
 (*)reversion, at the time at which the same shall have be- 
 come an estate or interest in possession by the determi- 
 nation of any estate or estates in respect of which such 
 land shall have been held, or the profits thereof or such 
 rent shall have been received, notwithstanding the per- 
 son claiming such land, or some person through vvhain 
 he claims, shall, at any time previously to the creation 
 of the estate or estates which shall have determined, 
 have been in possession or receipt of the profits of such 
 land, or in receipt of such rent, so that the remainder- 
 man is not bound to enter for a forfeiture until his estate 
 fall into possession, nor is his right affected by a posses- 
 sion by him, or any person through whom he claims, pre- 
 viously to the creation of the estate which shall have de- 
 term in ed(g). 
 
 8. An administrator shall be deemed to claim as if 
 there had been no interval of time between the death of 
 such deceased person and the grant of the letters of ad- 
 ministration(/i). 
 
 9. And when any person shall be in possession or in 
 receipt of the profits of any land, or in receipt of any rent, 
 as tenant at will, the right of the person entitled sub- 
 ject thereto, or of the person through whom he claims, to 
 make an entry or distress or bring an action to recover 
 such land or rent shall be deemed to have first accrued 
 either at the determination of such tenancy, or at the ex- 
 
 (/) Sec. 4. (g-) Sec. 5. {h) Sec. 6. 
 
 (*401 )
 
 A PURCHASER MAY REQUIRE. ^y^ 
 
 piratioii of one year next after the commencement of such 
 tenancy, at which time such tenancy shall be deemed to 
 have determined : provided that no mortgagor or cestui 
 que trust shall be deemed to be a tenant at will to his 
 mortgagee or trustee(i). 
 
 10. And when any person shall be in possession or in re- 
 ceipt of the profits of any land, or in receipt of aay (*)rent, 
 as tenant from year to year or other period, without 
 any lease in writing, the right of the person entitled sub- 
 ject thereto, or of the person through whom he claims, to 
 make an entry or distress or to bring an action to recover 
 such land or rent shall be deemed to have first accrued at 
 the determination of the first of such years or other 
 periods, or at the last time when any rent payable in re- 
 spect of such tenancy shall have been received (which 
 shall last happen)(y). 
 
 11. And when any person shall be in possession or in 
 receipt of the profits of any land, or in receipt of any 
 rent, by virtue of a lease in writing, by which a rent 
 amounting to the yearly sum of 205. or upwards shall 
 be reserved, and the rent reserved by such lease shall 
 have been received by some person wrongfully claiming 
 to be entitled to such land or rent in reversion immedi- 
 ately expectant on the determination of such lease, and 
 DO payment in respect of the rent reserved by such lease 
 shall afterwards have been made to the person rightfully 
 entitled thereto, the right of the person entitled to such 
 land or rent, subject to such lease, or of the person 
 through whom he claims, to make an entry or distress or 
 to bring an action after the determination of such lease 
 shall be deemed to have first accrued at the time at 
 which the rent reserved by such lease was first so re- 
 ceived by the person wrongfully claiming as aforesaid ; 
 and no such right shall be deemed to have first accrued 
 
 (/) Soc. 7. (j) Sec. b. 
 
 (*402)
 
 h'jQ OF THE TITLE \VHICri 
 
 upon the determination of such lease to the person right- 
 fullj entit]ed(A;). 
 
 The Act then takes away constructive possession 
 merely by reason of having made an entry, and destroys 
 the effect of continual claim in preserving any right, and 
 provides that the possession of one coparcener, joint 
 (*)tenant or tenant in common, shall not be deemed to 
 have been the possession of the others(/). 
 
 And it is enacted, that the possession of a younger 
 brother or other relation of the heir shall not be deemed 
 to be the possession of the heir himself(wi). 
 
 But that when any acknowledgment of the title of 
 the person entitled to any land or rent shall have 
 been given to him or his agent in writing signed by 
 the person in possession or in receipt of the profits of 
 such land, or in receipt of such rent, then such posses- 
 sion or receipt of or by the person by whom such ac- 
 knowledgment shall have been given shall be deemed to 
 have been the possession or receipt of or by the person 
 to whom or to whose agent such acknowledgment shall 
 have been given at the time of giving the same, and the 
 right of such last-mentioned person, or any person claim- 
 ing through him, to make an entry or distress or bring 
 an action to recover such land or rent shall be deemed to 
 have first accrued at the time at which such acknow- 
 ledgment, or the last of such acknowledgments was 
 given (n). 
 
 And it is provided, that when no such acknowledg- 
 ment shall have been given before the passing of the 
 Act, and the possession or receipt of the profits of the 
 land, or the receipt of the rent, shall not at the time of 
 the passing of the Act have been adverse to the right or 
 title of the person claiming to be entitled thereto, then 
 
 (k) Sec, 9. (/) Sec. ]0, 11, 12. 
 
 (m) Sec. 13. (n) Sec. 14. 
 
 (*403)
 
 A PURCHASER MAY REQUIRE. 4,^7 
 
 such person, or the person claiming through him, may, 
 notwithstanding the period of twenty years before limited 
 shall have expired, make an entry or distress or bring an 
 action to recover such land or interest at any time within 
 five years next after the passing of the Act(o). 
 
 (*)And if at the time at which \h.e right of any person 
 to make an entry or distress or bring an action to recover 
 any land or rent shall have first accrued as aforesaid 
 such person shall have been under any of the disabilities 
 hereinafter mentioned, (that is to say,) infancy, coverture, 
 idiotcy, lunacy, unsoundness of mind, or absence beyond 
 seas, then such person, or the person claiming through 
 him, may, notwithstanding the period of twenty years 
 before limited shall have expired, make an entry or 
 distress or bring an action to recover such land or rent 
 at any time within ten years next after the time at which 
 the person to whom such right shall first have accrued as 
 aforesaid shall have ceased to be under any such disabi- 
 lity, or shall have died (which shall have first hap- 
 pened) (p). 
 
 But even in case of disabilities, no action can be 
 brought but within forty years next after the time at 
 which such right shall have first accrued, although the 
 allowed term of ten years shall not have expired(^). 
 Nor is any time beyond the period of twenty years, or the 
 period of ten years allowed by reason of any disability of 
 any other person, or in other words, a succession of dis- 
 abilities does not extend the time(r). 
 
 No part of Great Britain and Ireland, nor the islands 
 of Man, Guernsey, Jersey, Alderney, or Sark, nor any 
 island adjacent to any of them (being part of the domi- 
 nions of his Majesty), shall be deemed to be beyond seas 
 within the meaning of the Act(5). 
 
 (o) Sec. 15. (p) Sec. l(j. 
 
 iq) Sec. 17. (r) Sec. 18. 
 
 * (s) Sec. 19.
 
 478 
 
 OF THE TITLE WHICH 
 
 The Act then provides that in certain cases the bar 
 shall operate as well against other estates of the claimant 
 as against those in remainder: 
 
 1. When the right to an estate in possession is l^rred 
 (*)by the lapse of time, and such person shall at anj time 
 during the said period have been entitled to any other 
 estate, interest, right or possibility, in reversion, remain- 
 der or otherwise, in or to the same land or rent, no entry, 
 distress or action shall be made or brought by such per- 
 son, or any person claiming through him, to recover such 
 land or rent, in respect of such other estate, interest, right 
 or possibility, unless in the mean time such land or rent 
 shall have been recovered by some person entitled to an 
 estate, interest or right which shall have been limited or 
 taken effect after or in defeasance of such estate or inte- 
 rest in possession (^). 
 
 2. And when the right of a tenant in tail shall have 
 been barred by reason of the same not having been made 
 or brought within the period before limited, no entry, 
 distress or action shall be made or brought by any person 
 claiming any estate, interest or right which such tenant 
 in tail might lawfully have barred(w). 
 
 3. And when a tenant in tail shall have died before 
 the expiration of the period before limited, no person 
 claiming any right which such tenant in tail might law- 
 fully have barred shall make an entry or distress or bring 
 an action but within the period during which, if such 
 tenant in tail had so long continued to live he might have 
 made such entry or distress or brought such action(.T). 
 
 4. And when a tenant in tail shall have made an assur- 
 ance which shall not operate to bar an estate, to take effect 
 after or in defeasance of his estate tail, and any person 
 shall by virtue of such assurance, at the time of the 
 execution thereof, or at any time afterwards, be in posses- 
 
 (0 Sec. 20. (w) Sec. 21. {x) Sec. 22. 
 
 (-*405)
 
 A PURCHASER MAY REQUIRE. \^q 
 
 sion or receipt of the profits of such land, or in the re- 
 ceipt of such rent, and the same person, or any other 
 person whatsoever (other than some person entitled to 
 (*)such possession or receipt in respect of an estate which 
 shall have taken effect after or in defeasance of the estate 
 tail), shall continue or be in such possession or receipt for 
 the period of twenty years next after the commencement 
 of the time at which such assurance, if it had then been 
 executed by such tenant in tail or the person who would 
 have been entitled to his estate tail if such assurance had 
 not been executed, would, without the consent of any 
 other person, have operated to bar such estate or estates 
 as aforesaid, then at the expiration of such period of 
 twenty years such assurance shall be effectual as against 
 any person claiming any right to take effect after or in 
 defeasance of such estate tail(^). 
 
 It is then enacted, that after the said 31st day of De- 
 cember 1833 suits in equity shall be confined to the pe- 
 riod allowed for actions at law(z). And when any land or 
 rent shall be vested in a trustee upon any express trust, the 
 right of the cestui que trust, or any person claiming through 
 him, to bring a suit against the trustee, or any person 
 claiming through him, to recover such land or rent, shall 
 be deemed to have first accrued at and not before the 
 time at which such land or rent shall have been conveyed 
 to a purchaser for a valuable consideration, and shall then 
 be deemed to have accrued only as against such pur- 
 chaser and any person claiming through him(«). But in 
 every case of a concealed fraud the right of any person 
 to bring a suit in equity for the recovery of any land 
 or rent of which he, or any person through whom he 
 claims, may have been deprived by such fraud, shall be 
 deemed to have first accrued at and not before the time 
 at which such fraud shall or with reasonable diligence 
 
 'b'^ 
 
 (ij) Sec. 23. (z) Sec. 24. (a) Sec. 25. 
 
 (*406)
 
 480 
 
 OF THE TITLE WHICH 
 
 might have been first known or discovered ; provided 
 that nothing in this clause contained shall enable any 
 owner of lands or rents to have a suit in equity for the 
 (*)recovery of such lands or rents, or for setting aside any 
 conveyance of such lands or rents, on account of fraud, 
 against any bona fide purchaser for valuable consideration 
 who has not assisted in the commission of such fraud, and 
 who at the time that he made the purchase did not know 
 and had no reason to believe that any such fraud had been 
 committed(6). 
 
 And it is provided, that nothing in the Act contained 
 shall be deemed to interfere with any rule or jurisdiction 
 of courts of equity in refusing relief on the ground of 
 acquiescence or otherwise to any person whose right to 
 bring a suit may not be barred by virtue of this Act(c). 
 
 The existing rule as to mortgagees in possession is then 
 adopted. The mortgagor is to be barred at the end of 
 twenty years from the time of taking possession or from 
 the last written acknowledgment ; and when there shall 
 be more than one mortgagor, such acknowledgment, if 
 given to any of such mortgagors, or his or their agent, 
 shall be effectual ; but where there shall be more than one 
 mortgagee, such acknowledgment, signed by one or 
 more of such mortgagees, shall be effectual only as 
 against the party or parties signing as aforesaid ; and 
 where such of the mortgagees as shall have given such 
 acknowledgment shall be entitled to a divided part of the 
 land or rent comprised in the mortgage, or some interest 
 therein, and not to any ascertained part of the mortgaged 
 money, the mortgagor or mortgagors shall be entitled to 
 redeem the same divided part of the land or rent on pay- 
 ment, with interest, of the part of the mortgage money 
 which shall bear the same proportion to the whole of the 
 mortgage money as the value of such divided part of the 
 
 (b) Sec. 26. (c) Sec. 27. 
 
 (*407)
 
 A PURCHASER MAY REQUIRE. ^01 
 
 laud or rent sh;ill bear to tiie value of the whole of the 
 laud or rent comprised in the mortgage(<:/). 
 
 (*)The Act then passes to church property. It prohi- 
 bits any spiritual or eleemosynary corporation^ sole from 
 recovering unless within two incumbencies and six years 
 after a third person shall have been appointed, or within 
 sixty years if those periods shall net amount to sixty 
 years(e). And it enacts, that no advowson shall be reco- 
 vered after the expiration of the period during which three 
 clerks in succession shall have held the same, all of 
 whom shall have obtained possession thereof adversely 
 to the right of presentation or gift of such person, or of 
 some person through whom he claims, if the times of 
 such incumbencies taken together shall amount to the 
 full period of sixty years ; and if not, then for the full 
 period of sixty years in the vA\o\e(f). But it is pro- 
 vided, that incumbents by reason of a lapse shall be 
 deemed to hav^ obtained possession adversely to the 
 right of presentation or gift of such patron as aforesaid ; 
 but incumbency, in consequence of promotion to a bishop- 
 rick, shall, for the purposes of the Act, be deemed a con- 
 tinuation of the incumbency of the clerk so made bishop, 
 or in other words, the first shall be within the provision 
 and the latter noX(g). And every patron by virtue of 
 any estate, interest or right which the owner of an estate 
 tail in the advowson might have barred, shall be deemed 
 to be a person claiming through the person entitled to 
 such estate tail, and the right to bring any quare impedit, 
 action or suit shall be limited accordingly(/i). But no 
 advowson shall be recovered after one hundred years from 
 the time at which a clerk shall have obtained possession 
 of such benefice adversely to the right of presentation of 
 such person, or of some person through u horn he claims, 
 
 (d) Sec. 28. (c) Sec. 29. ( /) Sec. 30. 
 
 (g-) Sec. 31. (A) Sec. 32. 
 
 VOL. I. 61 (*408)
 
 ^g2 OF THE TITLE WHICH 
 
 or of some person entitled to some preceding estate or 
 (*)interest, or undivided share, or alternate right of pre- 
 sentation or gift, held or derived under the same title, 
 unless a clerk shall subsequently have obtained posses- 
 sion of such benefice on the presentation or gift of the 
 person so claiming, or of some person through whom he 
 claims, or of some other person entitled in respect of an 
 estate, share or right held or derived under the same 
 title (^). 
 
 And the Act then provides, that at the determination of 
 the period limited by the Act to any person for making 
 an entry or distress, or bringing any writ of quare impedit 
 or other action or suit, the right and title of such person 
 to the land, rent or advowson for the recovery whereof 
 such entry, distress, action or suit respectively might 
 have been made or brought within such period, shall be 
 extinguished(A:). This was a proper provision, as under 
 the old law it was considered that although the remedy 
 was barred, the estate did not cease. The receipt of the 
 rent payable by any tenant from year to year, or other 
 lessee, is as against such lessee or any person claiming 
 under him (but subject to the lease), made the receipt of 
 the profits of the land for the purposes of the Act(/). 
 
 The Act then proceeds to enact, that all real and 
 mixed actions (except for dower, or a quare impedit, or 
 an ejectment), and all plaint (except for freebench), shall 
 cease after the 31st day of December 1834(m). But it 
 is provided, that when on the said 31st day of Decem- 
 ber 1834, any person who shall not have a right of entry 
 to any land shall be entitled to maintain any such writ 
 or action as aforesaid in respect of such land, such writ 
 or action may be brought at any time before the 1st day 
 (*)of June 1835, in case the same might have been 
 
 (e) Sec. 33. {h) Sec. 34. 
 
 (/) Sec. 35. (w) Sec. 36. 
 
 (*409) (*410)
 
 A PURCHASER MAY REQUIRE. ^gg 
 
 brought if the Act had not been made, notwithstanding 
 the period of twenty years before limited shall have ex- 
 pired(?i). And it is also provided, that when, on the said 
 1st day of June 1835, any person whose right of entry 
 to any land shall have been taken away by any descent 
 cast, discontinuance or warranty, might maintain any 
 such writ or action as aforesaid in respect of such land, 
 such writ or action may be brought after the said 1st day 
 of June 1835, but only within the period during which 
 by virtue of the provisions of the Act an entry might 
 have been made upon the same land by the person bring- 
 ing such writ or action if his right of entry had not been 
 so taken away(o). 
 
 It is then enacted, that no descent cast, discontinu- 
 ance or warranty which may happen or be made after 
 the said 31st day of December 1833, shall toll or defeat 
 any right of entry or action for the recovery of \dind(p). 
 And that after the said 31st day of December 1833, 
 no action or suit or other proceeding shall be brought, 
 to recover any money secured upon any land or rent, at 
 law or in equity, or any legacy, but within twenty years 
 next after a present right to receive the same shall have 
 accrued to some person capable of giving a discharge for 
 or release of the same, unless in the mean time some part 
 of the principal money, or some interest thereon, shall 
 have been paid, or some acknowledgment of the right 
 thereto shall have been given in writing signed by the 
 person by whom the same shall be payable, or his agent, 
 to the person entitled thereto or his agent ; and in such 
 case the tvi^enty years to run from such payment or ac- 
 knowledgment (q). 
 
 (*) After the said 31st day of December 1833, no arrears 
 of dower, nor any damages on account of such arrears, 
 
 (m) Sec. 37. (o) Sec. 38. 
 
 {p) Sec. 39. {q) Sec. 40. 
 
 (•*411)
 
 484 
 
 OF THE 'J'iTLL AVmi'H 
 
 shall be recovered or obtained by any action or suit for 
 a longer period than six years next before the commence- 
 ment of such action or suit(r). And after that day no 
 arrears of rent or of interest in respect of any sum 
 of money charged upon or payable out of any land or 
 rent, or in respect of any legacy, or any damages in 
 respect of such arrears of rent or interest(I), shall be 
 recovered but within six years next after the same respec- 
 tively shall have become due, or next after an acknow- 
 ledgment 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 : 
 provided nevertheless, that where any prior mortgagee 
 or other incumbrancer shall have been in possession of 
 any land, or in the receipt of the profits thereof, within 
 one year next before an action or suit shall be brought 
 by any person entitled to a subsequent incumbrance on 
 the same land, the person entitled to such subsequent 
 mortgage or incumbrance may recover the arrears of 
 interest which shall have become due during the whole 
 time that such prior incumbrancer was in such posses- 
 sion or receipt as aforesaid, although such time may have 
 exceeded the term of six years(5). 
 
 The Act is extended to the spiritual court(/). But 
 it is not to extend to Scotland ; nor is it, so far as it 
 relates to any right to present to or bestow any church, 
 (*)vicarage, or other ecclesiastical benefice — to extend to 
 Ireland(w). 
 
 (r) Sec. 41. {s) Sec. 42. 
 
 (0 Sec. 43. («) Sec. 44. 
 
 (I) I have forborne from making any observation on the particular 
 clauses, as it is too late ; but this clause should be modified without 
 loss of time, or the grossest injustice will be committed upon the just 
 rights of legatees and others, particularly infant legatees. 
 
 (^412)
 
 A PURCHASER MAY REQUIRE. 485 
 
 All the provisions regarding prescriptions, &c. and 
 limitations of time, were not contained in one act or 
 framed by the same hand. .For the use of the real pro- 
 perty lawyer, it is still necessary to refer to the leading 
 provisions of the 2 & 3 Wil. 4, c. 71 (I), by which it is 
 enacted, that no claim which may be lawfully made at 
 the common law, by custom, prescription or grant, to 
 any right of common or other profit or benefit to be taken 
 and enjoyed from or upon any land of the King, or par- 
 cel of the duchy of Lancaster or of the duchy of Corn- 
 wall, or of any ecclesiastical or lay person, or body cor- 
 porate, (except such matters and things as are therein spe- 
 cially provided for, and except tithes, rent and services,) 
 shall, where such right, profit or benefit shall have been 
 actually taken and enjoyed by any person claiming right 
 thereto without interruption for the full period of thirty 
 years, be defeated or destroyed by showing only that such 
 right, profit or benefit was first taken or enjoyed at any 
 time prior to such period of thirty years, but neverthe- 
 less such claim may be defeated in any other way by 
 which the same is now liable to be defeated ; and when 
 such right, profit or benefit shall have been so taken and 
 enjoyed as aforesaid for the full period of sixty years, the 
 right thereto shall be deemed absolute and indefeasible, 
 unless it shall appear that the same was taken and en- 
 joyed by some consent or agreement expressly made or 
 given for that purpose by. deed or writing(^'). 
 
 (*)And that no claim which may be lawfully made at 
 the common law, by custom, prescription or grant, to any 
 way or other easement, or to any watercouse, or the use 
 of any water, to be enjoyed or derived upon, over or 
 from any land or water of the King, or parcel of the 
 duchy of Lancaster or of the duchy of Cornwall, or being 
 
 (r) Sec. 1. 
 
 (I) It does not extend to Scotland or Ireland.— Sec. 9. 
 
 (Ml 3,
 
 486 
 
 OF THE TITLE WHICH 
 
 the property of any ecclesiastical or lay person, or body 
 corporate, when such way or other matter shall have been 
 actually enjoyed by any person claiming right thereto with- 
 out interruption for the full period of twenty years, shall 
 be defeated or destroyed by showing only that such way 
 or other matter was first enjoyed at any time prior to 
 such period of twenty years, but nevertheless such claim 
 may be defeated in any other way by which the same is 
 now liable to be defeated ; and where such way or other 
 matter shall have been so enjoyed as aforesaid for the full 
 period of forty years, the right thereto shall be deemed 
 absolute and indefeasible, unless it shall appear that 
 the same was enjoyed by some consent or agreement 
 expressly given or made for that purpose by deed or 
 writing(.r). 
 
 And it is enacted, that when the access and use of 
 light to and for any dwelling-house, workshop or other 
 building shall have been actually enjoyed therewith for the 
 full period of twenty years without interruption, the right 
 thereto shall be deemed absolute and indefeasible, unless 
 it shall appear that the same was enjoyed by some con- 
 sent or agreement expressly made or given for that pur- 
 230se by deed or writing(7/). 
 
 And that each of the respective periods of years 
 herein-before mentioned shall be deemed and taken 
 to be the period next before some suit or action wherein 
 the claim or matter to which such period may relate 
 (*)shall have been or shall be brought into question, and 
 that no act or other matter shall be deemed to be an 
 interruption, within the meaning of the statute, unless 
 the same shall have been or shall be submitted to or 
 acquiesced in for one year after the party interrupted 
 shall have had or shall have notice thereof, and of the 
 person making or authorizing the same to be made(2:). 
 
 {x) Sec. 2. (//) Sec. 3. (z) Sec. 4. 
 
 (*414)
 
 A PURCHASER MAY REQUIRE. ^g^ 
 
 And after directing the mode of p]eading(«), it pro- 
 vides that no presumption shall be allowed or made in 
 favor or support of any claim, upon proof of the exer- 
 cise or enjoyment of the right or matter claimed for any 
 less period of time or number of years than for such 
 period or number mentioned in the Act as may be appli- 
 cable to the case and to the nature of the claim(6). 
 
 But it is provided, that the time during which any 
 person otherwise capable of resisting any claim to any of 
 the matters before mentioned shall have been or shall be 
 an infant, idiot, non compos mentis, feme covert, or tenant 
 for life, or during which any action or suit shall have 
 been pending, and which shall have been diligently pro- 
 secuted, until abated by the death of any party or parties 
 thereto, shall be excluded in the computation of the 
 periods herein-before mentioned, except only in cases 
 where the right or claim is hereby declared to be abso- 
 lute and indefeasible(c). 
 
 Provided that when any land or water upon, over or 
 from which any such way or other convenient water- 
 course or use of water shall have been or shall be en- 
 joyed or derived hath been or shall be held under or by 
 virtue of any term of life, or any term of years exceeding 
 three years from the granting thereof, the time of the 
 enjoyment of any such way or other matter as herein last 
 (*)before mentioned, during the continuance of such term, 
 shall be excluded in the computation of the said period 
 of forty years, in case the claim shall within three years 
 next after the end or sooner determination of such term 
 be resisted by any person entitled to any reversion ex- 
 pectant on the determination thereof(c^). 
 
 And by the 2 & 3 Wil. 4, c. 100, "for shortening the 
 
 (a) Sec. 5. (6) Sec. 6. 
 
 (c) Sec. 7. {d) Sec. 8. 
 
 (*415)
 
 AQQ OF THE TITLE WHICH 
 
 time required in claims of modus decimandi, or exemp- 
 tion from or discharge of titlies"(l), it is enacted that all 
 prescriptions for any modus decimandi, or to any exemp- 
 tion from tithes, by composition real or otherwise, shall, 
 in cases where the render of tithes in kind shall be de- 
 manded by the King, or by any duke of Cornwall, or by 
 any lay person, not being a corporation sole, or by any 
 body corporate, whether temporal or spiritual, be deemed 
 good in law, upon evidence showing, in cases of claim of 
 a modus the render of such modus, and in cases of claim 
 to exemption showing the enjoyment of the land, without 
 render of tithes, money, or other matter in lieu thereof, for 
 thirty years next before the time of such demand, unless, 
 in the case of claim of a modus, the actual render of 
 tithes, or of money or other thing differing from the 
 modus claimed, or, in case of claim to exemption, the 
 render of tithes, or of money or other matter in lieu 
 thereof, shall be shown to have taken place at some 
 time prior to such thirty years, or it shall be proved 
 that such payment or render of modus was made or en- 
 joyment had by some consent or agreement expressly 
 made or given by deed or writing ; and if such proof in 
 (*)support of the claim shall be extended to the full peri- 
 od of sixty years next before the time of such demand, 
 the claim shall be deemed indefeasible, unless it shall be 
 proved that such payment or render of modus was made 
 or enjoyment had by some consent or agreement ex- 
 pressly made or given for that purpose by deed or 
 writing. 
 
 And where the render of tithes in kind shall be de- 
 manded by any archbishop, or other corporation sole, 
 whether spiritual or temporal, every such prescription 
 
 (I) It does not extend to Ireland (sec. 9.) ; nor to suits commenced 
 at a day now past (sec. 3.) ; and there is a further exception as to tithes 
 then let or compounded for. — See sec. 4. 
 
 (*416)
 
 A PURCHASER MAY R EQUIP. K. - A^OQ 
 
 shall be indefeRsible, iij)on evidence showing such ren- 
 der of modus made or enjoyment had, as before men- 
 tioned applicable to the nature of the claim, during the 
 time that two persons in succession shall have held the 
 office or benefice in respect whereof such render of tithes 
 shall be claimed, and for not less than three years after 
 the appointment and institution or induction of a third 
 person thereto : provided always, that if the whole time 
 of the holding of such two persons shall be less than sixty 
 years, then it shall be necessary to show such render of 
 modus made or enjoyment had, not only during the whole 
 of such time, but also during such further number of 
 years either before or after such time, or partly before 
 and partly after, as shall with such time be sufficient to 
 make up the period of sixty years, and also during the fur- 
 ther period of three years after the appointment and insti- 
 tution or induction of a third person to the same office or 
 benefice, unless it shall be proved that such payment or 
 render of modus was made or enjoyment had by some 
 consent or agreement expressly made or given for that 
 purpose by deed or wriling(e). 
 
 And it is enacted, that every composition for tithes 
 which hath been made or confirmed by the decree of any 
 (*)court of equity in England in a suit to which the ordi- 
 nary, patron and incumbent were parties, and which hath 
 not since been set aside, abandoned or departed from, 
 shall be valid in law ; and that no modus or exemption 
 shall be deemed to be within the provisions of the Act, 
 unless the same shall be proved to have existed and been 
 acted upon at the time of or within one year next before 
 the passing of the said Act(f). 
 
 But it is provided, that where any lands or tenements 
 shall have been or shall be held by any person entitled 
 
 (e) Sec. 1. . (/) Fee. 2. 
 
 VOL. I. 62 ' (*417)
 
 ^gQ OF THE TITLE, &c. 
 
 to the tithes thereof, or by any lessee of any such person, 
 or by any person compounding for tithes, or by any ten- 
 ant whereby the right to the tithes of such lands or tene- 
 ments may have been or may be during any time in the 
 occupier thereof, or in the person entitled to the rent 
 thereof, the whole of such time shall be excluded in the 
 computation of the several periods of time therein-before 
 mentioned (g). 
 
 And it is also provided, that the time during which 
 any person otherwise capable of resisting any claim shall 
 have been or shall be an infant, idiot, non compos mentis, 
 feme covert, or lay tenant for life, or during which any 
 action or suit shall have been pending, and which shall 
 have been diligently prosecuted, until abated by the 
 death of any party or parties thereto, shall be excluded 
 in the computation of the periods herein-before men- 
 tioned, except only in cases where the right or claim is 
 thereby declared to be absolute and indefeasible(/i). 
 And after providing for the manner in which in actions 
 and suits the modus or exemption may be alleged(i), 
 it is enacted, that no presumption shall be allowed or 
 (*)made in favor or support of any claim upon proof of 
 the exercise or enjoyment of the right or matter claimed 
 for any less period of time or number of years than for 
 such period or number mentioned in the Act as may 
 be applicable to the case and to the nature of the 
 claim(A:)(I). 
 
 {g) Sec. 6. (/i) Sec. 6» 
 
 (i) Sec. 7. {k) Sec. 8. 
 
 (I) For the new limitation upon actions of debt for rent, or upon any 
 bond, &c. see 3 & 4 W. 4, c. 42, s. 3, 4, 5 & 7, which last section, it 
 should be remembered, applies generally to the 21 Jac. 1. 
 
 (*418)
 
 [ 491 J 
 
 (*)CHAPTER Vlll. 
 
 OF THE TIME ALLOWED TO COMPLETE THE CONTRACT. 
 
 In sales by private agreement it is usual to fix a time 
 for completing the contract. . In such a contract the word 
 month may be construed either lunar or calendar, accord- 
 ing to the intention of the parties, to be collected from 
 the whole instrument taken together(«). The time fixed 
 is, at law, deemed of the essence of the contract(6)(232) ; 
 for it is the duty of the seller to be ready to verify the 
 abstract on the day on which it was agreed that the pur- 
 chase should be completed ; and if he have not the title 
 deeds in his possession, or the abstract set forth a defec- 
 tive title, the purchaser may resist the completion of the 
 contract, and recover his deposit. 
 
 In a late case, however(c), upon a sale by auction, 
 the conditions stipulated that the abstract should be de- 
 livered to the purchaser within a fortnight, and should 
 be returned at the end of two months; that a draft of the 
 conveyance should be delivered to the purchaser within 
 three months, and be returned to the seller within four 
 months ; and that the remainder of the purchase-money 
 
 (a) Lang v. Gale, 1 Mau. & Selw. 111. 
 (6) Berry v. Young, 2 Esp. Ca. 640, n. 
 (c) Lang V. Gale, 1 Mau. & Selw. 111. 
 
 (232) So, in equity, time may be of the essence of a contract. Ben- 
 edict V. Lynch, 1 Johns. Ch. Rep. 370. Though mere lapse of time 
 is not, in all cases, an objection to decreeing a specific performance. 
 Watets V. Travis, on appeal, 9 Johns. Rep. 450. See Thompson v. 
 Kclcham, 8 Johns. Rep. 146. 2d edit. 
 
 (*419)
 
 492 
 
 OF THE TIME ALLOWED 
 
 should be paid on the 24th day of June tlien next (which 
 was five months after the sale), when the purchaser should 
 receive his conveyance duly executed by all parties ; to 
 be prepared by the seller's attorney, at the expense of 
 the purchaser. It was contended that the stipulation in 
 (*)regard to the delivery of the conveyance was not a con- 
 dition precedent, and it was compared to the case of 
 Hall V. Cazenove(^?), where a charter-party contained 
 a covenant by the owner, that the ship should sail on a 
 specified day, and the owner afterwards brought an action 
 of covenant for the freight ; it was held that he need not 
 aver that the ship sailed on that day, although the de- 
 fendant (the freighter) covenanted to pay the freight in 
 consideration of every thing above mentioned. It was 
 not necessary to decide the point ; but Le Blanc, J. said, 
 that it was clear that it was a condition precedent that 
 a draft of the conveyance should be delivered to the pur- 
 chaser ; the question was, whether it must be done by 
 a particular day. It was not necessary, however, to enter 
 upon that question ; if it were, it might perhaps be mate- 
 rial to advert to the rule, that where a condition does 
 not go to the whole consideration(6) of the contract, but 
 to a part only, it is not a condition precedent. Bayley, J . 
 was of the same opinion. It was not a condition prece- 
 dent that the draft should be delivered by a particular 
 day, for he did not consider the precise time of the deli- 
 very as an essential ingredient in that condition which 
 was meant only to secure a delivery within a reasonable 
 time. 
 
 The general opinion has always been, that the day 
 fixed was imperative on the parties at law. This was so 
 laid down by Lord Kenyouj and has never been doubted 
 in practice. The contrary rule would lead to endless 
 
 {d) 4 East, 477. 
 
 (e) See Havclock v. Geddes, 10 East, 564. 
 
 (*420)
 
 TO COMPLETE THE CONTRACT. 
 
 493 
 
 difficulties. In the above case, for example, the different 
 times appointed, 1 . for delivery of the abstract ; 2. for 
 the return of it ; 3. for the delivery of the conveyance ; 
 4. for the return of it ; and 5. for the completion of the 
 purchase, were all links of the same chain, and if one 
 (*)link were broken, the whole chain would be destroyed. 
 If the time appointed for the delivery of the conveyance 
 was not an essential ingredient, but was meant only to 
 secure a delivery within a reasonable time, it follows that 
 the same rule must apply to the time fixed for the return 
 of it, and also to the time appointed for the completion 
 of the purchase. The effect of this rule would be, that 
 the appointment of a day would have no effect, and in 
 every case it must be referred to a jury to consider whe- 
 ther the act was done within a reasonable time. The 
 precise contract of the parties would be avoided, in order 
 to introduce an uncertain rule, which would lead to end- 
 less litigation. This cannot be compared to a case like 
 Hall V. Cazenove : there the ship did sail without being 
 countermanded, and the substance of the covenant was 
 considered to be, that the ship should go to the place 
 named on freight and return again, and if the freighter 
 sustained any damage by reason of the ship not having 
 sailed on the particular day, he might recover it by bring- 
 ing an action on the covenant. In favor of justice the 
 covenants were not considered as dependent on each other. 
 It would be monstrous that the ship should be permitted 
 to sail to the place named, and return again, and yet not 
 earn any freight, because it did not sail on the day ap- 
 pointed. So where covenants go only to a part of the 
 consideration, and a breach may be paid for in damages, 
 the defendant has a remedy on the covenant, and shall 
 not plead it as a condition precedent. If A. covenant 
 with B. to build a house for him according to a certain 
 plan, and B. covenant with A. to pay for the house so 
 
 (*421)
 
 494 
 
 OF THE TIME ALLOWED 
 
 built, it is clear, notwithstanding some aiithoritres to the 
 contrary, that if A. build a house, although not strictly 
 according to the plan, yet B. must pay for it, and may 
 recover in a distinct action against the builder for any 
 (*)damage sustained by the departure from the plan. The 
 justice of this is evident. But in the case under consi- 
 deration, the agreements go to the whole consideration 
 on both sides ; they are mutual conditions ; the one pre- 
 cedent to the otheY(f). If the draft of the conveyance, 
 for instance, is not delivered on the day appointed, the 
 party who ought to deliver it has broken his agreement, 
 and cannot therefore recover upon it at law. This works 
 no injustice ; for the further execution of the contract is 
 at once stopped ; the seller retains his estate, and the 
 purchaser his purchase-money, and the party making de- 
 fault is liable, as he ought to be, to an action for breach 
 of his engagement. It is to be hoped, therefore, that the 
 day appointed will always be deemed of the essence of 
 the contract at law. It has so been held in a recent case 
 in the Common Plecis(g). And in a later case upon a 
 sale of goods, where fourteen days were allowed from the 
 day of sale to the purchaser to clear away the goods, the 
 seller was not prepared to deliver them the day after the 
 sale to the purchaser, who applied for them ; and it was 
 held, that he (the seller) had broken his agreement, and 
 could not recover against the purchaser, who refused to 
 perform the contract(/t). Where the purchaser by a 
 covenant in the contract, was to pay a furthur sum of 
 money, provided the adjoining houses should be com- 
 pleted, that is, paved in front, &c. before a day named, and 
 the pavement was not completed until after the day ap- 
 
 (/) Boone V. Eyre, 1 H. Blackst. 273. See 10 East, 564. 
 (o) Wilde V. Forte, 4 Taunt. 334. 
 
 (/i) Ilagedon v. Laing, 1 Marsh. 514; and see Cornish v. Rowley, 
 post. 
 (*422)
 
 TO COMPLETE THE CONTRACT, 
 
 495 
 
 pointed, although the delay was occasioned by the bad 
 weather, which prevented the workmen from proceeding, 
 yet the seller was held not entitled to recover the 80/. (z). 
 (*)But a party may even at law wave the forfeiture, and 
 enlarge the time of his contract(j). 
 
 And equity, which from its peculiar jurisdiction is ena- 
 ])led to examine into the cause of delay in completing a 
 purchase, and to ascertain how far the day named was 
 deemed material by the parties, will in certain cases carry 
 the agreement into execution, notwithstanding that the 
 » time appointed be elapsed(233) ; for, as Lord Eldon re- 
 marks, the title to an estate requires so much clearing 
 and inquiry, that unless substantial objections appear, not 
 merely as to the time, but an alteration of circumstances 
 affecting the value of the thing ; or objections arising out 
 of circumstances, not merely as to the time, but the con- 
 duct of the parties during the time ; unless the objection 
 can be so sustained, many of the cases go the length of 
 establishing, that the objections cannot be maintain- 
 ed(A;)(234). Perhaps there is cause to regret that even 
 equity assumed this power of dispensing with the literal 
 performance of contracts in cases like these. 
 
 Objections on account of delay seem divisible into two 
 kinds. The one where the delay is attributable to the 
 neglect of either party ; the other where the delay is 
 
 (i) Maryon v. Carter, 4 Carr. & Pay. 295. 
 {j) Carpenter v. Blandford, 8 Barn. & Cress. 575. 
 {k) Per, Lord Eldon, see 7 Yes. jun. 274 ; and see Hearne v. Ten- 
 ant, 13 Yes. jun. 287. See Lennon v. Napper, 2 Scho. & Lef. 683. 
 
 (233) See Waters v. Travis, on appeal, 9 Johns. Rep. 450. 
 
 (234) So, if on the other hand, from the lapse of time, circumstances 
 have been so changed, that a specific performance, such as would 
 answer the ends of justice, has become impossible, the objection is 
 decisive. Pratt v. Carroll, 8 Cranch, 471. Pratt v. Latv, 9 Cranch, 
 466, 494. 
 
 (*423)
 
 j\QQ OF THE TIME ALLOWED 
 
 unavoidably occasioned by the state of the title ; and of 
 each of these we shall treat in its order. 
 
 (*)SECTION I. 
 Of Delays occasioned by the Neglect of either Party. 
 
 The time fixed on for the completion of a contract, had 
 formerly less attention paid to it in equity than is now 
 given to it, which seems to have arisen from the case of 
 Gibson v. Paterson(Z), where, according to the report, a 
 specific performance was decreed in favor of the plaintiff, 
 the vendor, without any regard had to his negligence in 
 not producing his title-deeds, &c. within the time limited. 
 And Lord Hardwicke is reported to have said, that most 
 of the cases which were brought into the Court, relating 
 to the execution of articles for the sale of an estate, were 
 of the same kind, and liable to that objection ; but that 
 he thought there was nothing in the objection. 
 
 It appears, however, that this case is mis-reported ; for 
 Lord Rosslyn, in Lloyd v. Collet(m), said he had looked 
 into the case of Gibson v. Paterson, in which the reporter 
 had made Lord Hardwicke treat the time as totally imma- 
 terial. He said, it was to be observed, that the circum- 
 stances of that case, of which he had taken a copy, did 
 not call for any such opinion. The purchaser, who hung 
 back, had bought an estate in mortgage. The contract 
 
 (/) 1 Atk. 12. 
 
 (m) 4 Ves. jun. 690, n ; and see 4 Bro. C. C. 497. See Radcliffe 
 V. Warrington, 12 Ves. jun. 326 ; Alley v. Deschamps, 13 Ves. jun. 
 225. 
 
 (*424)
 
 TO COMPLETE THE CONTRACT. 
 
 497 
 
 took place in November, and was to be completed in 
 February ; in that time, therefore, the mortgage could 
 only be paid off by treaty with the mortgagee. Upon 
 the facts it appeared, that application had been made to 
 the mortgagee, who consented to take his money. Drafts 
 of conveyance were made, and countermanded by the 
 (*)purchaser. He had, after the contract, demised part of 
 the estate to the vendor at a rent ; and, upon application 
 being made to him, every thing being ready, he said he 
 would be off the bargain ; he had no money to pay for 
 it ; and if they attempted to force him, he would go to 
 Scotland to avoid it. Lord Rosslyn added, there could 
 not be the smallest argument upon it, nor the least doubt 
 about the decree. 
 
 But whatever opinion Lord Hardwicke entertained on 
 this subject(w), it is now settled, that a man cannot call 
 upon a court of equity for a specific performance, unless 
 he has shown himself ready, desirous, prompt and eager ; 
 and therefore time alone is a sufficient bar to the aid of 
 the Court(235). 
 
 Thus in a case(o) where the parties differed as to the 
 construction of an agreement, and after a delay of seven 
 years one of the parties filed a bill for a specific per- 
 formance, it was dismissed merely on account of the 
 staleness of the demand. 
 
 A bill for a specific performance is an application to 
 the discretion, or rather to the extraordinary jurisdiction 
 
 (n) See 1 Ves. 460. 
 
 (o) Milward v. Earl of Thanet, 5 Ves. jun. 720, n. (6). See Alley 
 V. Deschamps, 13 Ves. jun. 225. 
 
 (235) See Pratt v. Carroll, 8 Cranch, 471. Pratt v. Lau; 9 
 Cranch, 456, 494. Somerville v. Trueman, 4 Har. & M'Hen. 43. 
 Benedict v. Lynch, 1 Johns. Ch. Rep. 370. In equity, time may be dis- 
 pensed with, if it be not of the essence of the contract. Hepburn v. 
 Auld, 5 Cranch, 262. 
 
 VOL. I. 63 (*445)
 
 498 
 
 OF THE TIME ALLOWED 
 
 of equity, which cannot be exercised in favor of persons 
 who have long slept upon their rights, and acquiesced 
 in a title and possession adverse to their claim. Due 
 diligence is necessary to call the Court into activity, and 
 where it does not exist, a court of equity will not lend 
 its assistance ; it always discountenances laches and 
 neg\ect(p)(236). 
 
 If the vendor be not ready with his abstract and title- 
 deeds at the day fixed, the purchaser may avoid the 
 agreement at law. 
 
 (*)Thus, in a case(9') where upon a sale it was agreed 
 that a good title should be made out by the 10th of July ; 
 in the beginning of July the purchaser called on the 
 vendor to show him the title-deeds ; but he not having 
 them in his possession, gave the purchaser an abstract of 
 the title, which did not contain any of the deeds ; and 
 although it was suggested that an application ought to 
 have been made to the vendor at an earlier period, yet 
 Lord Kenyon ruled otherwise, as tlie seller, he said, 
 ought to be prepared to produce his title-deeds at the 
 particular day. 
 
 This rule does not, however, prevail in equity ; for it 
 is there considered equally incumbent on the purchaser to 
 ask for the abstract, as for the vendor to deliver it. And, 
 therefore, if a purchaser do not call for the abstract 
 before the time agreed upon for its delivery(r), or do not 
 ask for it until it has become impossible to execute the 
 
 {p) Per Lord Manners, 1 Ball & Bcatty, GS. 
 
 (q) Berry v. Young, 2 Esp. Ca. 640, n. ; vide svpra, p. 419. 
 
 (r) Guest v. Homfrey, 6 Ves. jun. SIS. 
 
 (236) See Benedict v. Lynch, 1 Johns. Ch. Rep. 370, 375. Hatch 
 V. Cobb, 4 Johns. Ch. Rep. 559. Kempshall v. Stone, 6 Johns. Ch. 
 Rep. 194. Higginbolham v. Burnet, 5 Johns. Ch. Rep. 184. Pratt 
 V. Carroit, 8 Cranch, 471. Pratt v. Law, 9 Cranch, 456,494. Col- 
 cock V. Btitkr, 1 Des. 307. Butler v. O'llear, 1 Pes. 382, 398. 
 
 (*426)
 
 TO COMPLETE THE CONTRACT. 499 
 
 agreement by tlie day fixed(5), equity will consider the 
 time as waved. 
 
 So, if the purchaser receive the abstract after the day 
 appointed, and do not at the time object to the delay, he 
 cannot afterwards insist upon it as a bar to a performance 
 in specie(t). 
 
 It is, however, clearly settled, that a specific perform- 
 ance shall not be enforced, where no steps have been 
 taken by the vendor, although in proper time urged by 
 the purchaser to do so, and the purchaser, immediately 
 when the time is elapsed, insists upon his deposit, and 
 refuses to perform the agreement. 
 
 This was decided in Lloyd v, Collett(w) ; the case was, 
 (*)that on the 10th August 1792, the defendant contract- 
 ed for the purchase of the estate, the purchase to be com- 
 pleted on or before the 25th of March 1793, and had fre- 
 quently between those times applied for an abstract of the 
 title, but could not obtain one. Shortly after the 25th of 
 March 1793, the purchaser applied for his deposit, with 
 interest from the 10th of August 1792, when he paid it ; 
 and afterwards repeatedly applied for it before the 10th 
 of June 1793, when he brought an action for the deposit. 
 On the 16th September 1793, an abstract was delivered; 
 the purchaser was then out of town, and on his return, 
 on the 25th of Octo])er, wrote, insisting that he would 
 not complete his purchase. On the 6th of November the 
 bill was filed by the vendor for a specific performance, 
 and for an injunction to restrain the proceedings at law. 
 Lord Rosslyn said, the conduct of parties, inevitable 
 
 («) Jones V. Price, 3 Anstr. 924. 
 
 (/) Smith V. Burnam, 2 Anstr. 527 ; and see Seton r. Slade, 7 Yes. 
 jun. 265. 
 
 (tt) 4 Bro. C. C. 469 ; 4 Ves. jun. 689. Sec 5 Ves. 737 ; 7 Ves. 
 jun. 278; and see Pincke v. Ciiiteis, stated infra; Potts v. Webb, 4 
 Bro. C, C. 330, cited ; Paine v. Mcllcr, 6 Ves. jun. 349 ; and Wardt- 
 L\ Jellcry, 4 Price, 294. 
 
 (*427)
 
 er\Q OF THE TIME ALLOWED 
 
 accident, &c. might induce the Court to relieve ; but it 
 was a different thing to say, that the appointment of a 
 day was to have no effect at all, and that it was not in the 
 power of the parties to contract, that if the agreement 
 was not executed at a particular time, the parties should 
 be at liberty to rescind it. And he therefore considered 
 the contract as at an end. 
 
 But where a vendor has proceeded to make out his 
 title, and has not been guilty of gross negligence, equity 
 will assist him, although the title was not deduced at the 
 time appointed(237). 
 
 Thus, in Fordyce v. Ford(.'r), the purchase was to be 
 completed on the 30th July 1793. The abstract was not 
 delivered until the 8th, and the treaty continued until the 
 25th of September, on which day the deeds were delivered, 
 (*)and every difficulty cleared up ; when the purchaser 
 refused to proceed, alleging that he wanted the estate for 
 a residence for the last summer, and insisting he was not 
 bound to go on, on account of the delay. The Master of 
 the Rolls said, the rule certainly was, that where in a 
 contract either party had been guilty of gross negligence, 
 the Court would not lend its assistance to the completion 
 of the contract ; but in this case he thought there had 
 been no such negligence, and decreed accordingly ; add- 
 ing, that he hoped it would not be gathered from thence, 
 that a man was to enter into a contract, and think he was 
 to have his own time to make out his title. 
 
 The rules on this subject apply, as they ought to do, to 
 each party. And therefore, where a purchaser permits 
 a long time to elapse, without evincing a fixed marked 
 intention to carry his contract into execution, he will be 
 
 (x) 4 Bro. C. C. 494 ; Radcliffe v. Warrington, 13 Ves. jun. 323. 
 
 (237) As to the extension of time for completing the title, see Hep- 
 burn V. Dunlop, 1 Wheat. 179, 196. Hepburn v. Jlulcl, 5 Cranch, 262. 
 See also, Ramsay v. Brailsford, 2 Des. 683. 
 
 (*428)
 
 TO COMPLETE THE CONTRACT. 501 
 
 left to his remedy at law, although he may have paid part 
 of the purchase-money. He is not to be suffered to lie 
 by, and speculate on the estate rising in va.\ue(y). Nor 
 will he be assisted by equity, where he has made frivolous 
 objections to the title, and trifled, or shown a backward- 
 ness to perform his part of the agreement, especially if 
 circumstances are altered(z). And where the price is 
 unreasonable or inadequate, or the contract is in other 
 respects inequitable, equity will not assist either party, if 
 he has permitted the day appointed for completing the 
 contract to elapse without performing his part of the 
 agree m en t(«). 
 
 (*)The time, however, is more particularly attended to 
 in sales of reversion: for it is of the essence of justice 
 that such contracts should be executed immediately, and 
 without delay. No man sells a reversion who is not dis- 
 tressed for money ; and it is ridiculous to talk of making 
 him a compensation by giving him interest on the pur- 
 chase-money during the delay(6). 
 
 So time is very material where the estate is sold in 
 order to pay off any incumbrance bearing a higher rate 
 of interest than the vendor is entitled to receive, in re- 
 spect of the purchase-money, during the delay(c) ; or the 
 estate is sold for the purposes of a trade or manufacto- 
 
 (y) Harrington v. "VYheeler, 4 Ves. jun. 686 ; Alley v. Deschamps, 
 13 Ves. jun. 225. 
 
 (2) Hayes rn Caryll, 1 Bro. P. C. 27; 6 Yin. Abr. 538, pi. 18; 
 Spurrier v. Hancock, 4 Ves. jun. 667 ; Pope v. Simpson, 5 Ves. jun. 
 145 ; and Coward v. Odingsale, 2 Eq. Ca. Abr. 688, pi. 5 ; and see 
 Green v. Wood, 2 Vern. 632 ; Bell v. Howard, 9 Mod. 302 ; and 
 Main v. Melbourn, 4 Ves. jun. 720. 
 
 (a) Vide ante, eh. 6 ; and Whorwood v. Simpson, 2 Vern. 186 ; 
 Lewis V. Lord Lechmere, 10 Mod. 503. 
 
 (6) Newman v. Rodgers, 4 Bro. C. C. 391; and see Spurrier r. 
 Hancock, 4 Ves. jun. 667. 
 
 (c) Popham v. Eyre, Lofft, 786 ; and see a case cited in 2 Scho. & 
 Lef. 604. 
 
 (-*429)
 
 502 *^^ THE TIME ALLOWED 
 
 ry(d) ; or the subject of" the contract is in its nature of a 
 fluctuating value(e). 
 
 SECTION II. 
 Of Delays occasioned by the Stale of lite Title, 
 
 It niaj be laid down as a general proposition, that a 
 delay accounted for on the above ground will not prevent 
 a specific performance being decreed, where the time 
 fixed for completing the contract is not material. Thus, 
 if an estate was described as in good repair, and it turned 
 out to be in bad repair, and several months may be re- 
 quired to repair it, jet the purchaser cannot resist the 
 contract on the ground of time, unless it could be clearly 
 shown, that he wanted possession of the house to live in 
 at a given period, by which time the repairs could not be 
 (*)completed(y^. So if the estate is in lease, and it was 
 stated that the purchaser would be entitled to possession 
 several months before the lease actually expire, yet he 
 cannot rescind the agreement, unless the personal occu- 
 pation of the estate was essential to him at the time ap- 
 pointed(g). 
 
 Where time is not material, and the title is bad, but 
 the defect can be cured, if the vendee is unwilling to stay, 
 
 {d) Parker v. Frith, 1 Sim. & Stu. 199 ; Wright i'. Howard, ib. 
 190 ; Coslake i;. Tilt, 1 Russ. 376. 
 
 (e) Doloret v. Rothschild, 1 Sim. & Stu. 590. 
 
 (/) See Dyer r. Hargrave, 10 Ves. jun. 605, supra, p. 290. 
 
 ig) Hall V. Smith, Rolls, 18 Dec. 1807, MS.; S. C. 14 Ves. jun. 
 426; and see 13 Ves. jun. 77. 
 
 (*430)
 
 TO COMPLETE THE CONTRACT. 5Q3 
 
 the vendor should file a bill in equity to enforce the per- 
 formance of the contract(/i) ; for it is sufficient if the 
 party entering into articles to sell has a good title at the 
 time of the decree ; the direction of the Court being, in 
 all these cases, to inquire whether the seller can, not 
 whether he could, make a title at the time of executing 
 the agreement(238). 
 
 This principle was followed in a case of frequent re- 
 ference(/). And in a late case(A:), the vendor, at the 
 time he filed the bill for a specific performance, had only 
 a term of years in the estate, of which he had articled to 
 sell the fee-simple, and after the bill was filed, procured 
 the fee by means of an act of parliament ; and as the day 
 on which the contract was to be carried into execution 
 was not material, a specific performance was decreed. 
 
 The same rule prevails at law, where no time is fixed 
 for completing the contract, and an application for the title 
 has not been made by the purchaser previously to an 
 action by the vendor for breach of contract. For in 
 Thompson v. Miles(Z), a man agreed to sell a term of 
 (*)which he stated forty years to be unexpired. It appear- 
 ed there were only thirty-nine, but by an agreement indors- 
 ed on the lease, the lessor agreed to add one year to the 
 unexpired term. This agreement was dated after an 
 action brought by the vendor for damages on breach of 
 as^reement: and Lord Kenvon ruled, that the vendor 
 having at that time a good title was sufficient. His 
 
 (/j) See 6 Yes jun. 655 ; 10 Yes. jun. 315. 
 
 (i) Langford v. Pitt, 2 P. Wms. 629 ; and sec Jenkins v. Hiles, 6 
 Ves. jun. 646 ; Seton v. Slade, 7 Yes. jun. 265. 
 (h) VVynn v. Morgan, 7 Ves. jun. 202. 
 (/) 1 Esp. Ca. 184 ; see Willett v. Clarke, 10 Price, 207. 
 
 (238) See Hepburn v. Auld, 5 Cranch, 262. See also Ihphurn v. 
 Dunlop, 1 "Wheat. 179, 195. Clute v. Robison, on appeal, 2 Johns. 
 Rep. 596. 
 
 (*431)
 
 504 
 
 OF THE TIME ALLOWED 
 
 Lordship said, that it had been solemnly adjudged, that if 
 a party sells an estate without having title, but before he 
 is called upon to make a conveyance, by a private act of 
 parliament gets such an estate as will enable him to make 
 a title, that is sufficient : that here the plaintiff being 
 enabled to make a title, and the defendant never having 
 applied for it, he should not be allowed to set up against 
 the plaintiff a want of title, though the power of making 
 that title was obtained after the action was brought. 
 
 But if the vendor cannot verify his abstract at the time 
 appointed, or if he produce a defective title, aud the pur- 
 chaser bring an action for recovery of the deposit, the 
 vendor having a title at the time of the trial will not avail 
 him. Thus, in Cornish v. Rowley(m), where a purchaser 
 sought to recover his deposit, it appeared that the ab- 
 stract of the title began in the year 1793, and after reciting 
 that the deeds relating to the estate had been lost, stated 
 a fine and non-claim. Upon inquiry, it was found that the 
 fact of the deeds having been lost was not true. The 
 counsel for the defendant said they were ready to make 
 out a good title. Lord Kenyon said, that the vendor 
 must be prepared to make out a good title on the day 
 when the purchase is to. be completed. Indulgence, he 
 was aware, was often given for the purpose of procuring 
 probates of wills, &c. But this indulgence was voluntary 
 on the part of the intended purchaser. It is the duty of 
 (*)the seller to be ready to verify his abstract at the day 
 on which it was agreed that the purchase should be com- 
 pleted. If the seller deliver an abstract, setting forth a 
 defective title, the plaintiff may object to it. No man was 
 ever induced to take a title like the present. A fine and 
 non-claim are good splices to another title, but they will 
 not do alone. There are many exceptions in the statute 
 in favor of infants, femes covert, &c. As a good title was 
 
 (m) B. R. Midd. Sitt, after M. T. 40 Geo. III. ; 1 Selw. N. P. 160. 
 
 (*432)
 
 TO CO.MPLETE THE CONTRACT. 
 
 505 
 
 not mndc out at the day fixed, he should direct the jury to 
 find a verdict tor the deposit, \'\ ith interest up to that day. 
 And a verdict was found by the jury accordingly. 
 
 So, in Bnrtlett v. 'rucliin(/i), assignees of a bankrupt 
 sold an estate, and no tin^e v»as fixed for completing the 
 purchase. The purchaser upon a supposed defect of title 
 abandoned the "contract ; aftencards the commission was 
 superseded, and a new one issued, under w^hich the same 
 assignees were chosen. It was held that the purchaser 
 might rescind the contract, for at the time he gave notice 
 of his abandonment of the contract, the assignees could 
 not make out a good title. And in a late case(o), the 
 facts were, that upon a sale it was agreed that the pur- 
 chase-money should be paid on or before Lady-day 1803, 
 on having a good title. The vendors were assignees of 
 a bankrupt who claimed under a will. They thought 
 that he had an estate-tail under the will, and that there- 
 fore they could make a title ; but under the devise he 
 only took for life, with contingent remainders over. The 
 bankrupt, however, being heir at law of the testator, could 
 make a title by levying a fine, and was willing to join ; but 
 these facts were not stated in the abstract delivered, or 
 communicated to the purchaser until a fortnight before 
 (*)the assizes. The Court, after showing that the bank- 
 rupt took only an estate for life under the devise to him, 
 said, as it was stated, that previous to the time fixed for 
 payment of the money, and completion of the purchase, 
 or indeed till near the time of trial, no information was giv- 
 en to the purchaser that the bankrupt was heir at law of 
 the testator, but the title of the assignees appeared to have 
 
 (n) 1 Marsh. 583. See Goodwin r. Lightbody, 1 Dan. 153 ; Roper 
 V. Coombes, 6 Barn. & Aid. 584. 
 
 . (o) Seward r. Willock, 5 East, 198; 1 Smith's Rep. 390, S. C. ; 
 and see Radclifie r. "Warrington, 12 Yes. jun. 326, where the purchaser 
 recovered at law. 
 VOL. I. C4 (*433)
 
 ^Qg OF THE TIME ALLOWED 
 
 been delivered in, on the supposition of the bankrupt 
 being tenant in tail, they thought that the defendant had 
 failed in making good the agreement on his part ; and 
 that thereupon a right of action at law had accrued to the 
 plaintiff. How far the title since communicated might in 
 another course of proceeding in another place, render the 
 present proceeding abortive ; and whether the plaintiff 
 might not be ultimately compelled to fulfil his agreement, 
 was not for them in that action to decide. 
 
 In an early case(p) the Court of Chancery carried this 
 doctrine very far ; for at the time of the articles for sale, 
 or even when the decree was pronounced, Lord Stourton, 
 the vendor, could not make a title, the reversion in fee 
 being in the Crown ; and yet the Court indulged him 
 with time more than once for the getting in the title from 
 the Crown, which could not be effected without an act of 
 parliament, to be obtained in the following session : how- 
 ever, it was at length procured, and Sir Thomas Meers 
 decreed to be the purchaser(I) ; and even at this day, 
 although the Master report against the title, yet if it ap- 
 pear that the seller will have a title upon getting in a term, 
 (*)or procuring letters of administration, &c. the Court will 
 not release the purchaser ; but will put the vendor under 
 terms to complete his title speedily(/;/;). Or if a new fact 
 appear which enables him to make a title when the cause 
 is before the Court on further directions, the contract will 
 be enforced(9), but the Court will not extend the rule 
 
 {p) Lord Stourton v. Sir Thomas Meers, stated in 2 P. Wms. 631 ; 
 and see Sheffield v. Lord Mulgrave, 2 Ves. jiin. 526 ; Ormerod v. 
 Hardman, 5 Ves. jun. 722. 
 
 (pp) Coffin V. Cooper, 14 Ves. jun. 205. 
 
 (q) Esdaile v. Stephenson, 8 Aug. 1822, MS. supra, p. 219. 
 
 (I) Note, it appears that Sir Thomas Meers was mortgagee of the 
 estate ; (see Sir Thomas Meers v. Lord Stourton, 1 P. Wms. 46,) and 
 it is therefore probable that at the time he entered into the contract he 
 was aware of the defects in the title. 
 
 (*434)
 
 TO COMPLETE THE CONTRACT. ^Q>y 
 
 which it has adopted of compelling a purchaser to take 
 the estate where a title is not made till after the contract, 
 to any case to which it has not already been applied. 
 Therefore in a case where upon a creditor's bill filed for 
 sale of the real estate of a trader, the usual accounts 
 were decreed and a sale ordered, and the estates were 
 accordingly sold ; but it afterwards appeared that the 
 fact of the trading was not regularly proved, and then the 
 cause was re-heard, the decree upon which re-hearing was 
 also open to objection ; the purchaser under the decree 
 was upon motion relieved from his purchase, although 
 the parties were willing to take steps to remov^e the 
 objections(r). 
 
 And where a purchaser enters into, or proceeds in 
 a treaty, after he is acquainted with defects in the title, 
 and knows that the vendor's ability to make a good title 
 depends on the defects being cured, he will be held to 
 his bargain, although the time appointed for completing 
 the contract is expired and considerable further time may 
 be required to make a good title. 
 
 Thus in a c-dse(s), where it was agreed upon a pur- 
 chase, that it should be completed on the 5th April 1792, 
 (*)it appeared that the purchaser had applied for an ab- 
 stract at the latter end of January, or the beginning of 
 February, which not being sent to him, he, after the ex- 
 piration of the time for the completion of the purchase, 
 applied for his deposit, saying, that he should not proceed 
 in his purchase. About the 21st of April, an abstract 
 was sent him, and it appeared that a suit in Chancery 
 
 (r) Lechmere v. Brasier, 2 Jac. & Walk. 2S7 ; Dalby v. PuUen, 
 3 Sim. 29 ; 1 Russ. & Myl. 296 ; Coster v. Tumor, 1 Russ. & Myl. 
 311. 
 
 (s) Pincke r. Cuiteis, 4 liro. C. C. 329 ; and see Smith v. Burnaiii, 
 
 2 Anstr. 527 ; and Paine v. Meller, G Ves. jnn. 349 ; Wardc v. Jef- 
 
 Ibry, 4 Price, 295 ; see Smith v. Sir Thomas Dolman, 6 Bro. P. C. 
 
 291, by Tomlins. 
 
 (*435)
 
 608 
 
 OF THE TIME ALLOWED 
 
 must be determined before a title could be made, upoa 
 which he again declared he would not proceed in the pur- 
 chase, and again required his deposit. In Trinity term 
 he brought an action for his deposit, and, on the 6th of 
 November, the bill was filed. The purchaser, by his an- 
 swer, stated that the suit was still depending, and that 
 questions of law had arisen, which then stood for argu- 
 ment in the Court of King's Bench. 
 
 The Lords Commissioners Ashhurst and Wilson granted 
 an injunction, which was continued by Lord Rosslyn, who 
 said, in these contracts (sales by auction) in general, the 
 time of completing the contract is specified, and a deposit 
 is paid ; and if the title is not made out by the time, the 
 vendee is entitled to take back his deposit. But in this 
 case the vendee ivas apprised of the title depending on the 
 ability of the vendors to make a good title, which itself de- 
 pended on the event of a Chancery suit, and was, notwith- 
 standing, willing to go on with his purchase ; there had 
 been a communication of the delay of the suit, and the 
 present bill ivas filed after great delay (I). If the vendee 
 had called for his deposit at the end of the time limited 
 for completing the purchase, and insisted he would not 
 go on with his jmrchase, the Court would not have 
 compelled him. The cause was afterwards heard before 
 (*)the Master of the Rolls, who was also of opinion, that 
 there had been a sufficient communication of the real 
 state of the delay, and that the purchaser had acquiesced 
 in it, or at least not sufficiently declared his dissent to go 
 on with the purchase ; and therefore it was referred to 
 the Master to inquire as to the title. 
 
 So in Seton v, Slade(?), it appeared that the purchaser 
 
 (/) 7 Ves. jiin. 265. See TVood v. Bernal, 19 Ves. 22Q. 
 
 (I) The judgment shows the true ground of the decree ; but accord- 
 ing to the state of facts in the report, the case was similar to that of 
 Lloyd V. Collet, stated, 3upva, p. 424. 
 
 (*436)
 
 TO COMPLETE THE CONTRACT. kqq 
 
 was aware of the objections to the title at the time he 
 purchased the estate, and afterwards accepted the abstract 
 w^ithin a few days of the time appointed for completing 
 the contract. He had, however, previously declared, that 
 if the title was not made out by the time, he would relin- 
 quish the contract ; and the day after the time appointed 
 he actually applied for his deposit, alleging that the ab- 
 stract, so far from showing a right in the vendor to convey, 
 stated merely a contract for the purchase by him, without 
 noticing a suit in Chancery. But the purchaser having 
 been aware of the objections to the title, and having 
 afterwards received thfe abstract, a specific performance 
 was decreed. 
 
 Again(i^), where personal representatives of a trustee 
 supposing erroneously they had power to sell, entered in- 
 to a contract for sale, and when the mistake was discover- 
 ed, the purchaser was apprised that the sellers would take 
 the necessary steps to make a title, which they did, but 
 before they were completed, the purchaser brought an 
 action for his deposit, which he recovered, and then the 
 others filed a bill for a specific performance ; it was held 
 that the purchaser, if he had thought fit, might have 
 declined the contract as soon as he discovered that the 
 plaintiffs had no title, and he was not bound to wait until 
 they had acquired a title ; but he not having taken that 
 (*)course, it was enough that at the hearing a good title 
 could be made. 
 
 Although a treaty may have lain dormant for some 
 time, yet if the contract is not abandoned, a jierformauce 
 will be decreed in specie. 
 
 Thus in a case(;i') where, upon objections to a title, the 
 treaty had proceeded for about two years, when the ven- 
 
 («) Hoggart L'. Scott, 1 Kuss. &: Myl. 293. 
 
 (x) Marquib of Hertford v. Boore, 5 Ves. juii. 719. See Mihvard 
 V. Earl of Thanet, 5 Ves. jun. 720, ri. (6). 
 
 (*437)
 
 510 
 
 OF THE TIME ALLOWED 
 
 dor's solicitor wrote, calling for a distinct answer, saying, 
 that otherwise he must be under the necessity of filing 
 a bill. No answer was returned to the letter, nor was 
 any notice given that the purchaser considered the con- 
 tract as abandoned ; neither had he brought any action 
 for the deposit. The bill was filed after a delay of about 
 fourteen months, and the defendant resisted a specific per- 
 formance on the ground of delay, by which, he stated, he 
 had suffered material inconvenience, having purchased 
 the place as his residence, and that he was induced to 
 consider the contract as abandoned. A specific perform- 
 ance was however decreed. 
 
 But if a purchaser object to the title, and declare he 
 wall not complete the contract, and the vendor acquiesce 
 in this declaration, he cannot afterwards clear up the ob- 
 jections to his title, and compel the purchaser to perform 
 the agreement. This was decided in the case of Guest v. 
 Homfray(?/). The purchaser took objections to the title, 
 and was informed that no better title could be made ; 
 whereupon he said, he would not proceed in the pur- 
 chase, and afterwards returned the abstract, at the desire 
 of the vendor, at the same time acquainting him (the 
 vendor) that he (the purchaser) still considered the con- 
 tract was at an end. In about eight months after this 
 the abstract was returned, with the objections answered, 
 (*)and the bill was filed upon the defendant refusing to 
 complete the contract. But the bill was dismissed, al- 
 though it was clear that the purchaser had almost all the 
 time wished to be off the bargain. Lord Alvanley, then 
 Master of the Rolls, said, they should have cautioned the 
 purchaser, and told him they were going on to make out 
 a title. If they had done all that, and shown a probable 
 ground to the purchaser that they might make a good 
 
 (y) 5 Yes. jun. S18. 
 (*43S)
 
 TO COMPLETE THE CONTRACT. 
 
 511 
 
 title, Lord Alvanley said, he should perhaps not have 
 thought a year too long. 
 
 In Watson v. Reid(2), the contract was in June 1826, 
 An abstract was delivered, and a correspondence took 
 place with respect to the title. On the 7th April 1827 
 the purchaser gave notice that he objected to the title, 
 and abandoned the contract; and on the 1st May he 
 demanded a return of the deposit. The seller refused to 
 return it; and on the 25th April 1828 filed a bill for a 
 specific performance, and the Master of the Rolls dis- 
 missed it with costs, upon the ground of unreasonable 
 delay in filing it. 
 
 Where circumstances are such that the purchase-money 
 cannot be paid for a length of time, as if the purchaser 
 die, or become bankrupt before the contract be carried 
 into effect, and his executors, or assignees, are not able 
 to get in the assets or effects, the vendor is entitled to 
 require the contract to be rescinded, and he will be al- 
 lowed his costs(«) ; or he may demand a specific per- 
 formance ; and if the defendants are unable or unwilling 
 to perform the contract, that the estates may be resold ; 
 and if the purchase-money arising by the resale, together 
 with the deposit, shall not amount to the purchase-money, 
 (*)that the defendant may pay the deficiency. — A bill for 
 the latter purposes was filed by a vendor against the 
 assignees of a bankrupt, and a decree was made for re- 
 sale. The deficiency upon that resale was 5,016/. ; and 
 the cause coming on for further directions, Lord Rosslyn 
 directed that sum to be proved under the commission ; 
 saying, the whole purchase-money was the debt, and the 
 vendor had a lien on the estate(6) ; which proving by 
 
 (r) 1 Russ. & Myl. 236. 
 
 (a) Mackrethv. Marlar, 1 Cox, 259; Cox's n.(l) to 2 P. Wms. 67; 
 Whittaker v. Whittaker, 4 Bro. C. C. 31. See Sir James Lowlher v. 
 Lady Andover, 1 Bro. C. C. 396 ; Dickenson v. Heron, infra, ch. 10. 
 
 (6) Vide supra, ch. 1. 
 
 (*439)
 
 512 OF THE TIME ALLOWED 
 
 the resale deficient, the residue was to be proved under 
 the commissioii(f). 
 
 In Wright v. Wellesley(f/), upon a sale it was agreed 
 that part of the purchase-money should be secured by 
 mortgage. There was a decree for a specific perform- 
 ance, and a conveyance and mortgage were directed to 
 be executed, and further directions were reserved. The 
 Master made his report, by which it appeared that the 
 purchaser had made default in bringing in the proper 
 deeds, and he found what was due, which was regularly 
 demanded, but not paid. The plaintiff, the seller, pre- 
 sented a petition, which came on with the further direc- 
 tions, praying the sale of the property, in consequence 
 of the purchaser's default. It was objected that this 
 could not be done ; and that at all events a supplemental 
 bill was necessary ; but the Vice-Chancellor made the 
 order as prayed for : as the defendant had evaded the 
 decree of the Court, he would give the relief required by 
 the new state of circumstances, and he thought that the 
 petition was regularly presented. 
 
 In a late case, where an estate was sold by auction, in 
 order to pay off incumbrances, under the usual conditions, 
 and the purchase was to be completed on the 25th of 
 March 1805, the estate was sold for 123,000/. and the 
 (*)purchaser paid only 4,000/. as a deposit, when he ought 
 to have paid 24,000/. A short time previously to Lady- 
 day he wrote a letter to the vendors, acknowledging his 
 inability to pay, and requesting them to join in a resale, 
 offering to pay any loss by the second sale. This they 
 refused ; and he not having the money ready, on the 
 27th of March 1805, filed a bill for a specific perform- 
 ance, evidently to gain time. The vendors filed a cross- 
 bill ; and afterwards the purchaser became a bankrupt, 
 
 (c) Bowles V. Rogers, 6 Ves. jun. 95. n. 
 \d) V. C. 26 Feb. 1833. MS. 
 
 (*440)
 
 TO COMPLETE THE CONTRACT. 
 
 513 
 
 when the causes were revived. The expenses of the 
 vendors, in payment of the auction-duty, fee. were very 
 considerable. The cross cause came on first ; the assignees 
 of course could not bind themselves to pay the money ; 
 and the contract was decreed to be delivered up and can- 
 celled, so that the vendors became entitled to the 4,000/. 
 deposit(c). 
 
 We are now to consider whether equity will permit the 
 parties to make time the essence of the contract. 
 
 In Williams v. Thompson or Bonhara(/), the bill was 
 to carry into execution the trusts of a will, and for a spe- 
 cific performance of an agreement by Bonham, to pur- 
 chase a real estate of the defendants. By the agreement, 
 dated the 9th of July 1778, it was particularly expressed, 
 " that in case a good title to the premises, discharged 
 from all claims and demands whatsoever, should not be 
 made out to the satisfaction of Bonham within three 
 years from the date thereof, the agreement thereby made, 
 so far as concerned the purchase of the premises (for 
 the agreement contained other stipulations), should from 
 thenceforth become void." The defendant was always 
 ready to have completed his purchase, but the trustees 
 (*)under the will were incapable of making out a title 
 without the aid of equity, and for that purpose the bill in 
 question was filed in February 1781. The cause came 
 to a hearing on the 29th of June 1782, when the defend- 
 ant (Bonham) insisted, that the title not having been 
 made out at the time mentioned in the agreement, he was 
 discharged from his purchase. But Lord Thurlow was 
 of opinion, that the time fixed by the articles for making 
 a title to the defendant was only formal, and not of the 
 essence of the agreement ; and, as appears by the Regis- 
 
 (c) Steadman r. Lord Galloway, et e contra. Rolls, 9(h Feb. 180S. 
 (/)4 Bro. C. C. 331, cited; Newl. Contr. 238, stated. See the 
 case in Reg. Lib. B. 1781, fol. 564. 
 
 VOL. I. 65 , (*441)
 
 e| ft OF THE TIME ALLOWED 
 
 trar's book, he declared, that the three years being expir- 
 ed was not a sufficient objection to the agreement being 
 performed. 
 
 This case depends so much on its own complicated 
 circumstances, as scarcely to admit of being cited as an 
 authority which should rule any other case. I find, from 
 the Registrar's book, that it was impossible to make a 
 title without a decree. The agreement, which was very 
 long and special, stated all the facts ; and it was expressly 
 stipulated, that the trustees should use their utmost en- 
 deavors to obtain a decree, and the purchaser was im- 
 mediately let into possession. Now the bill was filed be- 
 fore the expiration of the three years, no laches was imput- 
 ed to the trustees, and it did not appear that the pur- 
 *chaser had sustained any loss, or been put to any inconve- 
 nience. It would therefore have been a strong measure 
 to hold, that the time was of the essence of the contract. 
 The purchaser entered into the contract with full know- 
 ledge of all the obstacles in the way of making a title ; 
 and unless the purchase was completed, there was no 
 mode of indemnifying the trustees for the expense incur- 
 red by the Chancery suit. 
 
 In the case of Gregson v. Riddle(^), which was also 
 (*)before Lord Thurlow, the agreement was for a partic- 
 ular day ; with a proviso, that in case the title should not 
 be approved in two months, the agreement was to be void 
 and of no effect. Tiiere was an outstanding legal estate, 
 which could not be got in by that time. A bill was filed 
 for a specific performance. The defendant resisting, a 
 reference was directed, to see whether a good title could 
 be made ; Lord Loughborough, then Lord Commissioner, 
 expressing an opinion that the terms of the agreement 
 were complied with(l). The report was in favor of the- 
 
 (0) 7 Vep. jun. 268, cited. 
 
 (1) The stipulation was, that in case the title should not he approved 
 
 (*442)
 
 TO COMPLETE THE CONTRACT. 
 
 515 
 
 title. The cause coming on before Lord Thurlow, the 
 performance was still resisted. Lord Thurlow said, it had 
 been often attempted to get rid of agreements upon this 
 ground, but never with success. The utmost extent was 
 to hold it evidence of a waver of the agreement ; but it 
 never was held to make it void. Mr. Mansfield, for the 
 defendant, said, the intention was clearly to make it void; 
 and that it would be necessary to insert a clause, that not- 
 withstanding the decision of the Court of Chancery, it 
 should be void. Lord Thurlow said, such a clause might 
 be inserted ; and the parlies loould be just as forward as 
 they were then. 
 
 On this dictum, it must be remarked, that the case did 
 not call for it, as the agreement appears to have been 
 substantially performed within the time. And it is said, 
 that in Potts v. Webb, before Lord Thurlow, it being part 
 of the terms that the purchase should be completed by 
 a certain time, his Lordship thought that a good reason 
 for not decreeing a specific performance(/i). At the same 
 (*)tirae it must be admitted, that Lord Thurlow entertain- 
 ed a floating opinion, that time could not in general be 
 made of the essence of the contract. It does not appear, 
 however, that any case ever came before him in which he 
 was called upon to decide the point, and his opinion has 
 not been followed in subsequent cases. 
 
 For in Lloyd v. Co!let(i), in which the case of Greg- 
 son V. Riddle was cited. Lord Chancellor Loughborough 
 said, the conduct of the parties, inevitable accident, &c. 
 might induce the Court to relieve ; but it was a different 
 
 (/i) 4 Bro. C. C. 330, cited. 
 
 (t) 4 Bro. C. C. 469 ; 4 Ves. jun. 689 ; note stated siii^ra. 
 
 of by the purchaser's counsel within two months, the articles should be 
 void. The difficulty upon the title arose upon a settlement which the 
 seller insisted was voluntary, and not upon a mere outstanding legal 
 estate. The seller insisted upon being at liberty to rescind the con- 
 tract, under the clause in the articles. 
 
 (•*443)
 
 tig OJ' THE TIME ALLOWED 
 
 thing to say the appointment of a day was to have no 
 effect at all, and that it was not in the power of the parties 
 to contract, that if the agreement was not executed at 
 a particular time, the parties should be at liberty to 
 rescind it. 
 
 And in the late case of Seton v. Slade(A:), Lord Eldon 
 said, he inclined much to think, notwithstanding what 
 was said in Gregson v. Riddle, that time may be made 
 the essence of the contract(239). 
 
 The case under consideration has been assimilated to a 
 mortgage, where, although the parties may have expressly 
 stipulated, that if the money be not paid at a particular 
 time, the mortgagor shall be foreclosed, yet equity will 
 permit him to redeem, in the same manner as if no such 
 stipulation had been entered into. There does not appear 
 to be any analogy between the cases. In a mortgage such 
 a declaration is inserted by the mortgagee for his own 
 advantage ; but as the land is merely a security for the 
 debt, equity rightly considers that a mortgagee ought only 
 to require his principal and interest, and not to obtain 
 (*)the estate itself, by taking advantage of the necessities 
 of the mortgagor. Once a mortgage and always a mort- 
 gage, has therefore become a maxim ; and under this axiom 
 equity is indeed administered ; the parties being put in 
 possession of their respective rights without detriment to 
 each other. The same reasoning seems to apply to relief 
 against a penalty. But in an agreement for sale of an 
 estate, where it is expressly declared that the contract 
 shall be void if a title cannot be made by a stated time, 
 the parties themselves have mutually fixed upon a time ; 
 the bona fides of such a transaction seems to be a bar to 
 
 {h) 7 Yes. jun. 265 ; and see Lewis v. Lord Lechmere, 10 Mod. 
 503. See also 3 Yes. jun. 693 ; 12 Yes. jun. 333 ; 13 Yes. jun. 289 ; 
 2 Mer. 140 ; Levy v. Lindo, 3 Mer. 81 ; Ward v. Jeffery, 4 Price, 294. 
 
 (239) See Benedict v. Lynch, 1 Johns. Ch. Rep. 374. 
 (*444)
 
 TO COMPLETE THE CONTRACT. ^J'^ 
 
 the interference of a court of equity ; and if the contract 
 be vacated by virtue of the agreement, the parties will still 
 be in the possession of their respective rights. We^may 
 therefore, perhaps, venture to assert, that if it clearly 
 appear to be the intention of the parties to an agreement, 
 that time shall be deemed of the essence of the contract, 
 it must be so considered in equity(/). In the late case of 
 Hudson V. Bartram(?w), the Vice-Chancellor (Sir John 
 Leach) said, that the principle was admitted now that 
 time may be made of the essence of the contract. Why 
 are not parties to insert such a stipulation in their con- 
 tract ? It is difficult to understand how the doubt arose, 
 but it is now at an end ; and in the later case of Williams 
 V. Edwards, where it was stipulated by the contract that 
 if the counsel of the purchaser should be of opinion that 
 a marketable title could not be made by the time thereby 
 appointed for the completion of the purchase, the agree- 
 ment should be void, and delivered up to be cancelled. 
 The counsel of the purchaser was of opinion that the 
 seller was only tenant for life of certain shares of the 
 estate, and a bill filed by the purchaser for a specfic per- 
 formance, (*)with a compensation, was dismissed with 
 costs(?i). 
 
 It remains to observe, that lohere no time is limited for 
 the performance of the agreement, the cases considered 
 under the first division in this chapter will assist the stu- 
 dent in forming a judgment in w^iat instances equity will 
 assist a party who has been guilty of latches, although 
 every case of this nature must in a great measure depend 
 upon its own particular circumstances. The cases classed 
 under the second division apply, how^ever, with greater 
 
 (/) See Appendix, No. 6. 
 
 (hj) 12 Dec. 1818, MS. ; S. C. 3 Madd. 440; and see Boehm r. 
 Wood, 1 Jac. & Walk. 419. 
 
 (>i) Williams v. Edwards, 2 Sim. 78. 
 
 (*445)
 
 ^JQ OF THE TIME ALLOWED TO COMPLETE, &c. 
 
 force to cases where no time is limited than to those where 
 a day is fixed, for in the former cases, the Court has not 
 to struggle against an express stipulation of the parties. 
 
 A case came before the Lords Commissioners in 1792(o)j 
 where no time was limited for performing the agreement. 
 The plaintiff was one of two devisees in trust to sell, and 
 pay debts, and had alone sold the estate(I), and entered 
 into articles with the defendant. The co-trustee afterwards 
 refused to join ; and there was a mortgagee who refused to 
 be paid off. Neither of these circumstances was disclosed 
 to the purchaser, and upon this delay in the title he pro- 
 ceeded to bring his action against the vendor for a breach 
 of the agreement. The plaintiff brought his bill to 
 compel a specific performance, and to have the co-trustee 
 join ; and the mortgage redeemed, and to stay the action. 
 The defendant suffered an injunction to go against him for 
 want of an answer ; and having afterwards answered, 
 a motion was made to dissolve the injunction ; and the 
 (*)cause shown by the plaintiff was, the possibility of mak- 
 ing a good title by this very suit. The Court held the 
 purchaser bound, and continued the injunction. 
 
 In this case it appears from the Registrar's book, that 
 the purchaser insisted on his purchase, and that the in- 
 junction should be dissolved ; which was certainly a very 
 important feature in the cause. It was not the case of a 
 man merely seeking to recover his deposit. It must, how^ 
 ever, be repeated, that it is impossible to lay down any 
 general rule applicable to cases where no time is appoint- 
 ed for performing the agreement. Indeed, throughout 
 this chapter, it has been found impossible to treat the sub- 
 ject of it in an elementary manner. 
 
 (0) Tyrer v. Artingstall, Newl. Contr. 236. See the case in Regv 
 Lib. B. 1792, fo. 28, nom. Tyrer v. Bailey. 
 
 (1) The estate was sold by auction tvith the concurrence of the other 
 trustee. The plaintiff, however, alone signed the agreement. 
 
 (*446)
 
 [ 519 J 
 
 OCHAPTER IX. 
 
 OF THE ABSTRACT AND CONVEYANCE : THE ASSIGNMENTS 
 OF TERMS, ATTESTED COPIES AND COVENANTS FOR 
 TITLE, TO WHICH A PURCHASER IS ENTITLED : OF 
 SEARCHING FOR INCUMBRANCES : AND OF RELIEF IN 
 RESPECT OF INCUMBRANCES. 
 
 SECTION I. 
 Of the Abstract and Conveyance, 
 
 The vendor must at his own expense furnish the pur- 
 chaser with an abstract of his muniments(I), and deduce 
 a clear title to the estate. The abstract ought to mention 
 every incumbrance whatever affecting the estate, and 
 should, therefore, contain an account of every judgment 
 by which it is affected(«) ; but equity considers it com- 
 plete whenever it appears, that upon certain acts done, 
 the legal and equitable estates will be in the purchaser ; 
 which may be long before the title can be completed(6). 
 Although the estate is sold free from incumbrances, and 
 the abstract shows an amount of incumbrance exceeding 
 
 fc) 
 
 (a) Richards v. Barton, 1 Esp. Ca. 268. 
 
 (6) See 8 Ves. jun. 436 ; and 1 Jac. & Walk. 421. 
 
 (I) Formerly the title-deeds themselves were delivered to the pur- 
 chaser, and his solicitor prepared the abstract at his expense ; and the 
 abstract was compared with the title deeds by the counsel before whom 
 it was laid. See Temple v. Brown, 6 Taunt. 60. 
 
 (*447)
 
 ^20 °^ '^"^ CONVEYANCE. 
 
 the purchase-money, yet it must be considered that the 
 seller can make a good title(c). This rule is properly 
 (*)confined to cases where the seller, and persons who are 
 trustees for him, can make a title ; for if the concurrence 
 of a stranger is necessary, and he is not bound to join, 
 the abstract cannot be deemed perfect until it shows that 
 he has given perfection to the title(J). 
 
 The abstract is delivered for the following purposes : 
 1st, That the purchaser may see whether the title is such 
 as he will accept. He has also a right to it after he has 
 taken an opinion, in order to take another opinion in case 
 he is not satisfied with that, and for the purpose of taking 
 further objections, and of further considering the title. He 
 must have it too for another purpose, to assist him in pre- 
 paring his conveyance, that he may see who must be made 
 parties, what form of conveyance is expedient, what par- 
 cels are to be inserted, and the like(e). As to the general 
 property in the abstract, it is hard to say who may 
 have it ; while the contract is open, it is neither in the 
 vendor nor in the vendee absolutely ; but if the sale goes 
 on, it is the property of the vendee ; if the sale is broken 
 off, it is the property of the vendor. In the mean time 
 the vendee has a temporary property, and a right to keep 
 it, even if the title be rejected, until the dispute be finally 
 settled, for his own justification, in order to show on what 
 ground he did reject the title(y). If the purchase go off, 
 not only is the abstract to be returned, but no copy to 
 be kept, lest it should be used for a mischievous pur- 
 pose(^) ; and although the purchaser pays for the opi- 
 
 (c) Townsend v. Champernown, 1 You. & Jeiv. 449. 
 
 {d) Lewinv. Guest, 1 Russ. 325. 
 
 (e) See 2 Taunt. 276, per Mansfield, C. J. 
 
 (/) 2 Taunt. 278, per Chambre, J. 
 
 (g) 2 Taunt. 277, per Lawrence, J. 
 
 (*448)
 
 OF THE CONVEYANX'E. t^l 
 
 nion, yet, for the same reason, that ought, it should seem, 
 to be returned with the abstract(A). 
 
 In a case where the purchaser returned the abstract to 
 (*)the seller, to answer the queries and opinion of counsel, 
 it was held, that he (the purchaser) might maintain tro- 
 ver against the seller for the abstract, although the seller 
 himself might ultimately be entitled to the abstract. The 
 temporary property of the purchaser in the abstract was 
 sufficient to enable him to maintain the action(«). 
 
 The seller is bound to produce the deeds, in order that 
 the abstract may be examined with them, although they 
 are not in his possession, and the purchaser is not to be 
 entitled to the custody of them. But, if they are in the 
 possession ef a third person, the purchaser's solicitor, it 
 seems, must send to the place where the deeds are, in 
 order to examine them with the abstract, and the seller 
 must pay the expense of the journey(j)(I). 
 
 The strict rule seems to be, that the vendor must pro- 
 cure the fee to be vested either in himself, or a trustee 
 for him ; and that a purchaser is not compellable to bear 
 the expense of a long conveyance, on account of the legal 
 
 (/i) See and consider 2 Taunt. 270, per Mansfield, C. J. 
 (t) Roberts v. Wyatt, 2 Taunt. 26S. 
 (j) Sharp I'. Page, Rolls, 1815, MS. 
 
 (I) Sale by assignees of a bankrupt. A settlement of 1763 was in 
 the possession of a former purchaser, and there was only a covenant to 
 produce a copy of it. A bill was filed by the assignees for a specific 
 performance. The purchaser was informed that the settlement was in 
 the possession of a gentleman in the country, and mi^hl be seen there. 
 He was ready to covenant to produce it. The purchaser submitted to 
 the Master that it was the duty of the sellers to produce the deeds 
 stated in the abstract before the Master, or to the purchaser's solicitor 
 in London. The Master stated, that he would make inquiry of con- 
 veyancers, what the practice in such cases was, and afterwards decided, 
 that the purchaser's solicitor ought to send to Baldock, where the deeds 
 were, to compare the abstract with the settlement, but that the sellers 
 ought to pay the expenses of such journey. 
 
 VOL. I. 60 (*449)
 
 522 
 
 OF THE CONVEYANCE. 
 
 estate having been outstanding for a length of time, or of 
 the estate being subject to incumbrances vi'hich are to be 
 paid off(k). It is not, however, very usual to insist upon 
 (*)this, unless the title cannot be perfected without a pri- 
 vate act of parliament ; in which case, the expense of ob- 
 taining it is always borne by the vendor. 
 
 Unless there be an express stipulation to the contrary, 
 ^he expense of the conveyance falls on the purchaser(/) ; 
 who, as we have already seen, must in that case prepare 
 and tender the conveyance(wi). Tlie expense attending 
 the execution of the conveyance is, however, always borne 
 by the vendor, but of course he does not pay the costs of 
 the purchaser's attorney. 
 
 If the estate be copyhold, the purchaser must bear the 
 expense both of the surrender to him and of his admis- 
 sion(/?) ; and a vendor is not obliged to pay the fine due 
 on the admission of the vendee, although he covenant to 
 surrender and assure the copyholds at his own costs and 
 charges(o) ; because, it is said, the title is perfected by 
 the admittance, and the fine is not due till after(p). 
 
 If a draft be altered by either party, although the al- 
 teration be such as would be supported by the Courts, 
 yet the draft as altered should not be ingrossed without a 
 communication being first made to the other party(</). 
 
 {k) See 1 H. Blackst. 280. 
 
 (/) See 2 Ves. jun. 155 ; and note, this is the universal practice of 
 the Profession. 
 
 (»n) Supra, ch. 4. 
 
 {n) Drury v. Man, 1 Atk. 95, Sanders's edition. 
 
 (o) Graham v. Sime, 1 East, 632. 
 
 (p) Dalton V. Hammond, 4 Co. 28 a ; Rex v. Lord of the Manor 
 of Hendon, 2 Term Rep. 484 ; and see Fishe v. Rogers, 1 Rol. Abr. 
 606, (A.) pi. 1 ; 3 Burr. 1543 ; Lex. Cust. p. 163 ; Wood's Inst. p. 
 137 ; Gilb. Ten. 205 ; 1 Watk. Copy. 286 ; sed qxu and see Ualton v. 
 Hammond, Cro. Eliz. 779 ; Mo. 622, pi. 851 ; and supp. to Co. Copy, 
 s. 10 ; and Parkins v. Titus, Mg. 
 
 (9) See Staines V. Morris, 1 Yes. & Bea. 15. 
 
 (*450)
 
 OF THE CONVEYANCE. 
 
 523 
 
 A purchaser has a right to require the vendor himself 
 to surrender the estate, if copyhold, and to execute the 
 conveyance, if freehold ; and he cannot be compelled to 
 accept either a surrender or conveyance, under a power 
 (*)of attorney, unless an actual necessity appears for 
 it(r) ; for it tends to multiply his proofs, and he may be 
 put under difficulties by these means ; the letter of attor- 
 ney may be lost, and the party is obliged to prove the ex- 
 ecution of it(5). A letter of attorney may be revoked 
 the next moment, that revocation may be notified to the 
 attorney without the purchaser's knowledge, and then the 
 conveyance would be void ; and the purchaser's only 
 remedy would be a suit in equity (^). This was said by 
 Lord Hardwicke, but the doctrine of later times is, that a 
 power of attorney given for valuable consideration can- 
 not be revoked (m). 
 
 A further objection is, that the vendor may be dead at 
 the time the power is exercised, and in that case the ex- 
 ecution would be void, as a power of this nature expires 
 by the death of the principal(?(;)(241). For this reason, 
 where a purchaser chooses to permit the -conveyance to 
 be executed by attorney, the attorney should execute a 
 declaration of trust, that he will stand possessed of the 
 purchase-money in trust for the purchaser, until it either 
 appear by satisfactory evidence, that the vendor was alive 
 at the time of the execution of the deed, or if he shall be 
 dead, until the estate is duly conveyed to the purchaser. 
 
 (r) Mitchel v. Neale, 2 A'^es. 679 ; Richards v. Barton, 1 Esp. Ca. 
 268 ; and see ibid. 115 ; Noel v. Weston, 6 Madd. 50. 
 
 {s) See Johnson v. Mason, 1 Esp. Ca. 89. 
 
 (t) Per Lord Hardwicke, in casu Mitchel v. Neale, icbi sup* 
 
 {u) Walsh V. Whitcomb, 2 Esp. Ca. 665. 
 
 {w) Shipman v. Thompson, Wynne v. Thomas, Willes, 105, 565 ; 
 Wallace v. Cooke, 5 Esp. Ca. 117. 
 
 (241) The grantor of land is presumed to be alive until the contrary 
 is shewn. Baliifi's Les. v. Bigeloic, 1 Peter's Rep. 452. 
 
 (M51)
 
 524 
 
 OF THE CONVEYANCE. 
 
 As a purchaser cannot be required to take a conveyance 
 executed by attorney, so, on the other hand, if a vendor 
 only covenant to surrender or convey lands to a purchaser 
 upon request, he is not compellable to appoint an attorney 
 for that purpose(a;). 
 
 (*) Where the estate lies in a register county, the con- 
 veyance should be registered as soon as it is executed. 
 Mr. Milliard remarks(3/) that, by the statutes for regis- 
 try, there is no time limited for registering deeds ; and 
 that it is therefore obvious from an inspection of the acts, 
 how necessary it is, that deeds should be registered imme- 
 diately on their being executed : to enforce this the more 
 strongly, he adds, it may not be useless to consider, if a 
 subsequent conveyance or mortgage should be executed 
 for a valuable consideration, and from an almost momen- 
 tary inattention or delay of the first vendee or mortgagee, 
 in not immediately registering, the second vendee or 
 mortgagee should register first ; whether, in such case, 
 the first vendee or mortgagee doth not thereby become in 
 a worse situation than he would have been by law, in case 
 the registering acts had not been made. 
 
 It is clear that, in the case put, the subsequent pur- 
 chaser or mortgagee, unless he had notice, would prevail 
 over the first vendee or mortgagee. And it must be re- 
 marked, that, by delaying to register his conveyance, a 
 purchaser gives a prior incumbrancer, who may have 
 neglected to register his incumbrance, an opportunity of 
 retrieving his error, and thereby establishing his demand 
 on the estate ; for the acts only say that deeds shall be 
 void, unless such memorial thereof is registered, as by 
 the acts is directed, before the registeritig the memorial 
 under which the subsequent pw chaser claims(z). 
 
 It appears, therefore, that there are two cogent reasons 
 
 (r) Symtns v. Lady Smith, Cro. Car. 299 ; Godb. 446. 
 
 ((/) N. (2) to Shep. Touch. 116. 
 
 («) Vide infra in this chapter, and chaptei 16. 
 (*452)
 
 OF ASSIGNMENTS OF TERMS. toc 
 
 why a memorial of the conveyance should be duly re- 
 gistered immediately after the execution of the conveyance; 
 the one, that a prior incumbrancer might, during the de- 
 lay, register his incumbrance ; the other, that the delay 
 (*)might give an unprincipled vendor an opportunity of 
 selling the estate to a bona fide vendee without notice ; 
 who. if he registered his deeds before the registry of the 
 first conveyance, would certainly prevail against the first 
 purchaser. 
 
 SECTION II. 
 Of Assignments of Terms. 
 
 A PURCHASER may require an assignment of all out- 
 standing terms, of which he could avail himself in 
 ejectment, to attend the inheritance ; and if the purchaser 
 leave them outstanding, he may not, perhaps, have the 
 full enjoyment of his estate without, at some future pe- 
 riod, being himself at the expense of getting them in : 
 for even a mortgagee would be very unwilling to advance 
 money on the estate, unless the terms were assigned, lest 
 a subsequent mortgagee or purchaser, without notice, 
 should obtain an assignment of them, and so overreach 
 the prior mortgage. 
 
 I. The position that a purchaser may require an assign- 
 ment of all outstanding terms, of lohich he can avail him- 
 self in ejectment, to attend the inheritance, naturally calls 
 our attention to the cases in which a term may be used 
 upon an ejectment. We have already seen that, in some 
 cases, the possession of the cestui que trust may operate 
 
 (*463)
 
 526 
 
 OF ASSIGNMENTS OF TERMS. 
 
 as a bar to his trustee(a). So where whilst fines could 
 be levied a purchaser was not, at the time of his contract, 
 aware of the term, and its existence would have endan- 
 gered or affected his title, a fine levied, with five years 
 (*)non-claim, would have operated as a bar to the trustee 
 of the term(6) ; although where the term had been assign- 
 ed in trust for the purchaser, a fine levied would not affect 
 it, because such a construction would be manifestly con- 
 trary to the intention of the parties(c). But as the law 
 on these points was not well settled, it was laid down in 
 the last edition of this work, as a general rule, that nearly 
 all terms for years, however ancient, and notwithstanding 
 any adverse possession or fines, might be required by a 
 purchaser to be assigned to attend the inheritance ; and 
 where a term had once been assigned to attend the in- 
 heritance, although at a period very remote, and it had 
 been since treated as a subsisting term by declarations in 
 the subsequent deeds, that the person in whom it was 
 vested should stand possessed of it in trust to attend the 
 inheritance, a purchaser could not be advised to permit 
 the term to continue outstanding, because it was clear 
 that it might be used against him upon an ejectment. 
 Nor was it any answer to a purchaser's claim, that the 
 term has already been recently assigned to attend the 
 inheritance. And the same rule should still be acted upon 
 although fines are abolished, and the time of limitation i& 
 shortened by the late acts. 
 
 Where terms for years are raised by settlements, it is 
 usual to introduce a proviso, that they shall cease when 
 the trusts are at an end. In well-drawn deeds, this pro- 
 viso always expresses three events : 1st, the trusts never 
 
 (a) Supra, p. 394. 
 
 (6) Iseham v. Morrice, Cro. Car. 109, 5th resol. ; 2 Ventr. 329. 
 (c) Freeman v. Barnes, 1 Ventr. 80 ; 1 Lev. 270. See Smith i\ 
 Peirce, Carth. 100 ; Basket v. Peirce, 4 Vern. 226. 
 
 (*464)
 
 OF ASSIGNMENTS OF TERMS. 
 
 527 
 
 arising ; 2dly, their becoming unnecessary or incapable 
 of taking effect ; or, Sdly, the performance of them. But 
 it frequently happens, in ill-penned instruments, that these 
 events are not accurately expressed, or not all provided 
 for ; and in those cases it must be seen whether, in the 
 (*)events which have happened, the term has ceased, for if 
 it has not, the purchaser must require an assignment of 
 the term. To illustrate this doctrine, let us suppose a 
 term for years to be created for raising a sum of money 
 for the first son of A, who shall attain twenty-one, and 
 that it is declared by the deed, that when the trusts are 
 performed, the term shall cease. Now, in this case, if A, 
 should not have a son who attains twenty-one, the trusts 
 would not have arisen, and consequently could not be 
 performed ; and it seems that the term will not cease ; 
 the event which happened not being provided for in the 
 declaration for cesser of the term. 
 
 In a late case(<:/), which has already been referred to, it 
 appeared, that under a power Mr. Walsh Porter had, by 
 deed, charged the estate in question with the payment of 
 5,000/. to the children of his then intended marriage, at 
 such time or times, and in such proportions, and in such 
 manner as thereinafter mentioned. And, by the same deed, 
 in further exercise of his power, he appointed the estate 
 to trustees for five hundred years, upon the usual trusts 
 to raise the 5,000/. payable to sons at twenty-one, and 
 daughters at twenty-one, or marriage, with the usual pro- 
 vision for raising maintenance in the mean time. And it 
 was provided, that if no child should become entitled to 
 the portions, or if the person or persons to whom the next 
 estate of inheritance of and in the said manor, &.c. in re- 
 version or remainder, expectant on the determination of the 
 said term of five hundred years, shall, for the time being, 
 belong, do, and shall well and truly pay, or cause to be 
 
 {d) Haysr. Bailey, Rolls, 10th August 1813, vide supra, p. 345. 
 
 (*455)
 
 ^28 OF ASSIGNMENTS OF TERMS. 
 
 paid, unto the said Edmund Lambert and Thomas Gorman 
 (the trustees of the term), or the survivor of them, or the 
 executors or administrators of such survivor, or well and 
 sufficiently, to his and their good liking, secure to be paid 
 (*)the portion or portions hereinbefore provided, or intend- 
 ed to be provided, for such child or children, or so much 
 thereof as shall be remaining unpaid (all such maintenance 
 and interest as is hereinbefore mentioned being first 
 raised and satisfied) ; and in case all and every of the 
 trusts declared as aforesaid, of and concerning the said 
 term, shall in all things be performed and satisfied, or 
 shall be discharged, either by becoming incapable of being 
 performed, or by any other means, and the trustees shall 
 be paid their expenses, then the term should cease. The 
 portions were paid to the personal representatives of the 
 surviving trustee, with all interest and maintenance money 
 up to the day of payment, by the reversioner, " in order," 
 as it was declared, " to discharge the estates from the 
 portions, and that the term might cease by virtue of the 
 proviso contained in the deed of appointment ;" and a 
 regular release was executed by the trustees of the term 
 upon receipt of the money. The estate was sold, and 
 the purchase completed. The purchaser sold again ; and 
 it appeared, that one of the children was still under age ; 
 and it va as insisted that the payment to the trustees did 
 not discharge the estate from the portions. The seller filed 
 a bill for a specific performance. It was argued, that the 
 term in the event had ceased ; but the Master of the Rolls 
 (Sir William Grant) suggested, that, although the term 
 might have ceased, yet the portions would still remain 
 charged on the estate under the charge in the deed. It 
 was, however, submitted, that the charge, and the term, 
 and the trusts of it, must all be taken together. The 
 portions would have been as much a charge on the estate 
 under the trust of the term as they were under the express 
 charge. If the term, which was the legal and substantial 
 
 (*466)
 
 OF ASSIGNMENTS OF TERMS. roQ 
 
 security, was gone at law, it was impossible for equity to 
 say that the charge yet subsisted. The very intention of 
 the parties would be frustrated by such a decision. The 
 (*)portions were to be paid, according to the charge, to the 
 children in the manner after mentioned ; and one mode 
 afterwards mentioned was a j)ayment to the children 
 through the medium of the trustees. The proviso was 
 inserted to meet the veiv case which happened. The 
 trustees were persons i whom the party making the 
 charge reposed confidence and he, the creator of the trust, 
 had expressly provided, th t if the reversioner should be 
 desirous to discharge the state before ihe children ivere 
 capable of receiving the p^ riions (for, if t hey were of age, 
 the portions would, of coi se, be payable to themselves), 
 he might pay the money > the trustees f^r them, or even 
 secure it to the good likiiL ; of the trustees. Equity had 
 no power to say that this vas not n discreet act, and that 
 the portions, although pn'^ to the trustees precisely as 
 directed by the deed, she ,d, for the greater security of 
 the infants, still remain chaiged on the estates. The term 
 had unquestionably ceasec at law ; and the portions 
 which it was raised to seci e, had, of course, ceased with 
 it. In support of the objt tion, it was argued, that the 
 portions were not payable bv the charge till the children 
 attained twenty-one, and tl at they could not before that 
 period be paid to the trustees, so as to discharge the 
 estate from them. The Master of the Rolls said, that he 
 was inclined to be of opinic n, that the charge would run 
 with the term which would r ^'-ilate the mode of payment ; 
 but he doubted whether the term would cease, for it was 
 required, that " all such maintenance and interest should 
 be first raised and satisfied." Now maintenance was to 
 be raised till the children attained twenty-one. Then how 
 can it be said that that is done until the child attained 
 twenty-one ? That circumstance must concur ; all the 
 trusts must be performed ; it is in the conjunctive. His 
 
 VOL. I. 67 (*457)
 
 COQ OF ASSIGNMENTS OV TERMS. 
 
 Honor doubted therefore whether the charge would 
 cease. Under these circumstances, he should think that 
 (*)the purchaser would not be forced to take the title ; 
 and therefore he overruled the exception to the Master's 
 report against the title. 
 
 This objection was not considered in the argument. It 
 might, had the point been made, have been insisted, that 
 the direction in the deed, that " all such maintenance and 
 interest being first raised and satisfied," must be confined 
 to maintenance and interest up to the time of payment of 
 the principal. The interest was the fruit of the principal ; 
 and when the principal was paid, it would yield interest, 
 and that would, of course, be the fund for maintenance. 
 The ground taken against the title makes the reversioner 
 still liable to pay interest under the charge in the deed, 
 although he has paid off the principal, which will jjroduce 
 interest. Could he file a bill against the trustees to pay 
 him the interest of the 5,000/. which he paid to them ? 
 Could the trustees file a bill against the owner of the 
 estate for payment of ths interest, although they had the 
 5,000/. in the funds ? And, if not, does it not follow^ that 
 the interest was no longer a charge on the estate ? The 
 construction, which depends on the general expression in 
 the deed, wholly defeats the intention of the parties, that 
 the reversioner might, at any time, relieve the estate from 
 the charge altogether, upon payment of the portions. The 
 power supposed to be reserved to the owner is, to pay ofi" 
 the principal, and yet leave the estate subject to the in- 
 terest. The decision, in this case, proves, that the charge 
 of the interest is as serious an objection to the owner's 
 title as the charge of the principal. If, therefore, the 
 payment of the principal has any operation, it is to make 
 the owner pay ten per cent, interest instead of five. But, 
 it is admitted, that the portions might be paid to the 
 trustees before the children attained twenty-one. Now, 
 as the maintenance and interest were to be first raised 
 
 (*458)
 
 OF ASSIGNMENTS OF TERMS. ro j 
 
 and paid, it must necessarily be intended, that the mainte- 
 nance (*)vvas such as had already accrued ; for, how could 
 the trustees raise by anticipation what might never be- 
 come due ? The proviso for cesser embraced, 1st, the event 
 of there being no child who should become entitled to the 
 portion ; 2d, the payment of the portions to the trustees ; 
 3d, the performance of the trusts. There are some gen- 
 eral words in the proviso which are unskilfully intro- 
 duced ; but this was the intention, and the words are suffi- 
 cient to effectuate it." The word and, introducing the 
 third event, must, it is submitted, be read or; for the 
 second and third events could not happen together. The 
 case was afterwards heard upon appeal before the Lord 
 Chancellor, but it had become unnecessary to decide the 
 above point, and he gave no opinion upon it. 
 
 Where a portion is secured by a term of years, and the 
 term is directed to cease upon payment of the money, and 
 the estate is sold before the portion is paid, it sometimes 
 happens that the jiurcrhaser is desirous to keep the term 
 on foot, and the following plan has been adopted for tliat 
 purpose. — A fictitious mortgage is first made of the term 
 for raising the portion, to a friend of the purchaser's, in 
 which the purchase is not noticed; then the estate is 
 conveyed to the purchaser in the usual way, subject to the 
 mortgage ; and then, by a subsequent deed, the supposed 
 mortgngee declares that he has been paid off, and that 
 he will stand possessed of the term in trust for the pur- 
 chaser, and to attend the inheritance. Now, this plan, 
 although certainly ingenious, is, I fear, inefiVctual. It is 
 impossible to read the deeds bearing date, as they neces- 
 sarily must do, within a day or two of each other, without 
 seeing that the whole proceeding is fictitious ; and if the 
 term should be set up in ejectment, it would be quite 
 open to the adverse party to insist that the deeds were 
 nugatory. And when the fact is once establislied, that 
 
 (*459)
 
 CQ2 OF ASSIGNMENTS OF TEKMS. 
 
 (*)the portion was paid off without a bona fide mortgage, 
 it should seem that the terra must cease, by force of the 
 proviso in the deed creating it, and that no artifice of the 
 parties can keep it alive. 
 
 JI. We may now consider shortly the leading rules on 
 the doctrine of merger of terms of years, without a 
 knowledge of which the practical conveyancer must fre- 
 quently be at a loss to know of what terms to require an 
 assignment. 
 
 Where a term of years and the inheritance meet in one 
 person in the same right, the term is extinct. 
 
 So a man cannot. Sir Edward Coke says, have a terra 
 for years in his own right, and a freehold in auter droit, 
 to consist together(e) ; and he illustrates this rule by 
 stating, that where a man, lessee for years, takes a feme 
 lessor to wife, the term is extinct. But this position 
 appears to be contradicted by the case of Lichden v. 
 Winsmore(y), in which it was held, that if there be 
 lessee for years, reversion for life to A., a married woman, 
 and the lessee grant his estate to the husband, and then 
 the wife dies, the term is not extinct, because the husband 
 has the estates in several rights, for the freehold was in 
 the w ife, and the husband was merely seised in her right ; 
 or, to speak more correctly, the freehold was in the hus- 
 band and wife, although in her right(^). 
 
 And it is clear, that if in a case like this, the coalition 
 be not occasioned by the act of the termor, the term will 
 not merge. Thus, the descent of the fee upon the wife of 
 a termor for years after the intermarriage will not drown 
 (*)the term, because the estates do not coalesce by the act 
 
 (e) 1 Inst. 338 b. See 9 East, 372. 
 
 (/) 2 Roll. Rep. 472 ; 1 Ro. Abr. 934, pi. 10 ; Ben. 141 ; and see 
 Thorn r. Newman, 3 Swanst. 603. 
 
 (g) See Polyblank r. Hawkins, Dougl. 329. 
 (*460) (*461)
 
 OF ASSIGNMENTS OF TERMS. 
 
 633 
 
 of the termor for years(/t), and the term he holds in his 
 own right, and the freehold in right of his wife. This 
 was decided in the reign of James 1. by Fleming, C. J. 
 and Fenner and Croke, Justices, against the opinion of 
 Williams, Justice, who, even after judgment was given, 
 said to the counsel at the bar that, as clear as it was that 
 they were at the bar, so clear it was that the term was 
 extinct ; and in other respects expressed himself very 
 violently, so that Sir Edward Coke's doctrine was not 
 overruled without opposition. 
 
 Where, however, a husband termor for years, seised of 
 the freehold in right of his wife, has issue by the wife, so 
 that he is entitled, in his own right, as tenant by the 
 curtesy, there seems reason to contend that the term will 
 merge(i). 
 
 A term vested in a person as executor may belong to 
 him beneficially ; and it therefore seems, that if he pur- 
 chase the reversion, the term will be extinct ; although it 
 is usual in practice to require an assignment of such a 
 term on a future purchase of the inheritance ; and this 
 practice is sanctioned by an obiter dictum of Lord C. J. 
 Holt's in Cage y. Acton(/c), where he admitted (as a point 
 perfectly clear) that if a man hath a term as executor, and 
 purchases the reversion, this is no extinguishment. But 
 in Brooke's Abridgment, it is in three several places(/) 
 stated to have been held by the Judges Hales and Whor- 
 wood, in 4 Edw. 6, that if a man has a lease for years 
 as executor, and afterwards purchases the land in fee, the 
 (*)lease is extinct ; and this position is cited and not de- 
 
 {h) Lady Piatt r. Sleap, Cro. Jac. 276; 1 Bulst. ]18; Jenk. 2d 
 Cent. pi. 38. 
 
 (t) See 1 Bulstr. 118. 
 
 {k) 1 Salk. 326 ; Com. 69 ; and see Webb v. Russell, 3 Term Rep. 
 393. 
 
 (i) Bro. Abr. Extinguishment, 64, Leases, 63, Surrender, 62. 
 
 (*462)
 
 534 
 
 OF ASSIGNMENTS OF TERMS. 
 
 nied in several CRses(m), and is adopted by Rolle in his 
 Abridgment(w). So in a case in Leonard(o), Dyer ex- 
 plicitly laid down the same doctrine ; and it has been 
 treated as clear law in two cases, one of which is reported 
 by Hetly(/?), and the other by Freeman(^). And in 
 one case one of the Judges thought, that even the descent 
 of the fee on the executor would merge the term(r), 
 although Lord Chief Baron Gilbert justly questions this 
 position(5). The rule, that a purchase of the fee by the 
 executor shall merge the term, appears to be founded 
 in reason as well as upon authority ; for, as far as his 
 own interest is concerned, there cannot be any reason 
 why the term should not merge. It is admitted, how- 
 ever, on all hands, that the term shall not be extinct as to 
 creditors, and this I am induced to believe, from Lord 
 Raymond's report of Cage v. Acton, is all that Lord 
 Chief Justice Holt meant(/), although his dictum is so 
 generally stated in Comyns's and Salkeld's reports of 
 this case. At any rate, it was an obiter dictum, and can- 
 not affect a doctrine apparently so well established ; and 
 it is therefore submitted to the reader, that in a case of 
 this nature the term must merge in the inheritance, except 
 as to creditors. 
 
 But a man may have a freehold in his own right, and 
 a term in auter droit(u). 
 
 Therefore, if a man seised of the freehold intermarry 
 with a woman termor for years, the term is not extinct, 
 but the husband is possessed of the term in right of his 
 (*)wife, during the coverture, because he has not done 
 
 (m) 3 Leo. Ill ; 2 RoUe's Rep. 472. 
 
 (n) 1 Ro. Abr. 934, pi. 9. (o) 4 Leo. 37, pi. 102. 
 
 {p) Het. 36. ((/) 1 Freem. 289, pi. 338. 
 
 (r) See 3 Leo. 112. (s) See Bac. Abr. Leases, (R.) 
 
 {t) 1 Lord Raytn. 520. («) 1 Inst. 338 b. 
 
 (*463)
 
 OF ASSIGNMENTS OF TERMS. 
 
 535 
 
 any act to destroy the term, and it is cast upon him by the 
 act of law(a:). 
 
 So if the lessee grant the term to the wife of the lessor, 
 it will not merge (y). 
 
 But if a man possessed of a term in, right of his wife, 
 purchase the freehold, there seems ground to contend, 
 that the term will merge, inasmuch as the estates coalesce 
 by his own act, and not as in the case of marriage, by the 
 act of law ; and accordingly in one case(2:). Dyer held 
 the wife's term to be extinct by the husband purchasing 
 the fee ; and Manwood, C. B. agreed with him ; and the 
 same doctrine appears to have been held in a case re- 
 ported by Moore(a). Lord C. J. Hobart, however, seems 
 to have been of opinion, that a purchase by the husband 
 of the fee should not extinguish the term(6), and in this 
 opinion Lord C. J. Holt appears to have coincided(c). 
 
 Upon the foregoing principle, if the lessee make the 
 freeholder his executor, the term will not merge(^/). 
 
 It was formerly holden, that a term for years could not 
 merge in a term for years ; but in Hughes v. Robotham(e), 
 it was determined, that if there be two termors, he who 
 has the less estate may surrender to the other, and the 
 term will merge in the greater : 2dly, that although the 
 reversion be for a less number of years than the term in 
 possession, yet the term in possession shall drown in that 
 in reversion. 
 
 (x) Bracebiidge v. Cook, Plo. Com.n. 417; and see 4 Leo. 38; 
 Godb. 2 ; Het. 36. 
 
 {y) Bracebridge v. Cook, Plo. Comtn. 417. 
 
 (z) Godb. 2 ; 4 Leo. 3S. 
 
 («) Mo. 54, pi. 167. 
 
 {b) Young V. Radford, Hob. 3. 
 
 (c) See 1 Salk. 326. 
 
 (rf) 1 Inst. 333 b ; 1 Freem. 289, pi. 338. See Attorney-general v. 
 Sands, 3 Cha. Rep. 19. 
 
 (e) Hughes v. Robothani, Cro. Eliz. 302. See Bac. Abr. Leases, 
 (S.) s. 2 ; Stephens r. Brydges, V. C. 1821, MS. accordingly.
 
 536 
 
 OF ASSIGNMENTS OF TERMS. 
 
 (*)lt remains to observe, that before the statute of 
 uses(/), if a termor for years was enfeoffed to uses, equity 
 would not compel him to execute the estate so as to deprive 
 himself of his term. The statute of Henry, by transfer- 
 ring the use into a possession, would have destroyed the 
 estates of termors who were enfeoffed to uses ; but to pre- 
 vent this injustice, an express saving was introduced into 
 the act of the rights of all persons seised to uses. There- 
 fore, if a fine or feoffment be levied or made to a lessee 
 for years to the use of others, the term will not be extinct, 
 although if the statute had not been made, the term would 
 have been extinguished at common law(^). So, where 
 a termor for years was made a tenant to the prcecipe, it 
 was held that although the freehold vested in him drowned 
 the term until the recovery was suffered, yet, when the 
 recovery was perfected, the term should revive(A). And 
 it seems that the same rule must prevail where the con- 
 veyance is by lease and release, although it has been 
 strenuously argued, that as the lease for a year is a sur- 
 render in law of the prior term, the subsequent release to 
 uses shall not bring the case within the saving of the 
 statute of uses. There appears, however, to be no weight 
 in this argument ; a lease and release being a common 
 conveyance, and deemed one assurance ; and from one 
 report of the case, in which the question arose, it seems 
 that the Judges(i) thought that the term was not extin- 
 guished by the lease for a year(A:). 
 
 It may here be remarked, that a deed purporting to be 
 an assignment of an old term may, if that term has by 
 
 (/) 27 Hen. VIII. c. 10, s. 3. 
 
 (g) Chesney's case, Mo. 196, pi. 345 ; 7 Rep. 19 b, 20 a, cited. 
 
 {h) Ferrors v. Fermor, 2 Roll. Rep. 245 ; Cro. Jac. 643 ; Terrie's 
 case, 1 Ventr. 280, cited. 
 
 (t) See 3 Keb. 310. 
 
 (A;) Fountain v. Cook, 1 Mod. 127 ; best reported Bac. Abr. Leases, 
 (R.) ; S. C. by the name of How r. Stiles, 3 Keb. 283, 309 ; 2 Lev. 126. 
 
 (*464)
 
 OF ASSIGNMENTS OF TERMS. ro^y 
 
 (*)any accident ceased, operate as the creation of a new 
 one. As in the common case of an assignment of a term 
 in which the freeholder in reversion joins in granting, 
 bargaining, selling, and assigning the term ; if the old 
 term has become void, it will be resuscitated by these 
 words(/). 
 
 HI. The expense of the assignment of any terms of 
 years which a purchaser can require to be assigned to 
 attend the inheritance, must be borne by the purchaser 
 himself, but the title to them must of course be deduced 
 at the expense of the vendor ; and if a term has never 
 been assigned to attend the inheritance, the vendor must 
 bear the expense, not only of deducing the title, but also 
 of the assignment of the term to a trustee of the pur- 
 chaser's nomination to attend the inheritance. 
 
 The rule, that terms of years which have never been 
 assigned to attend the inheritance, must be assigned to a 
 trustee of the purchaser's nomination, at the vendor^s ex- 
 pense, is not acknowledged by some gentlemen of emi- 
 nence, who, on the contrary, insist that the purchaser 
 must consider the term either as a protection, or as an 
 incumbrance. If he deem it a protection, then they con- 
 tend that he must assign it at his own expense. If, on 
 the contrary, the purchaser treat the term as an incum- 
 brance, they admit that the vendor must discharge the 
 estate from it, and accordingly offer to merge the term at 
 his expense. The general practice of the Profession, 
 however, is certainly in favor of the purchaser's right to 
 require an assignment of the term to attend the inherit- 
 ance at the vendor's expense ; and when it is admitted 
 that the vendor may be compelled to merge the term at 
 his own expense, it seems very difficult to contend that 
 (*)the purchaser may not insist upon its being assigned. 
 
 (/) See Demi v. Kenieys, 9 East, 366. 
 vor. I. 6S (*465) (*466)
 
 538 
 
 OF ASSIGNMENTS OF TERMS. 
 
 A refusal to assign may, undor these circumstances, be 
 thought to be a mere subterfuge to avoid the expense of 
 the assignment, and throw it upon the purchaser. If the 
 purchaser insist upon an assignment of the term, it seems 
 clear that the vendor cannot safely merge it, although the 
 purchaser refuse to bear the expense of the assignment. 
 The title appearing on the abstract is that on which the 
 purchaser is to act, and consequently the vendor, after 
 delivery of the abstract, ought not merely of his own 
 authority to do any act to alter or affect the title ; and a 
 trustee of a term can scarcely be advised, after notice of 
 a contract for sale of the estate (when he is by construc- 
 tion of equity become a trustee for the purchaser), to 
 merge the term against the consent of his cestui que trusty 
 the purchaser. It would be difficult, therefore, to esta- 
 blish any other rule than that which, it is ajjprehended, 
 is generally adopted by the Profession. 
 
 In some cases, perhaps, assignments of terms may be 
 dispensed with. 
 
 In Willoughby v. Willoughby(m), Lord Hardwicke 
 laid it down, " that where an old term had been assigned 
 upon an express trust to attend upon and protect the in- 
 heritance, as settled by such a deed, or the uses of such a 
 settlement described or referred to particularly, as it some- 
 times happens, and the conveyancer is satisfied that those 
 uses of the inheritance have never been barred till his 
 new settlement or purchase is made, he may very safely 
 rely upon it, because the very assignment carries notice 
 of the old uses(I). Nay, where the assignment has 
 (*)been generally in trust to attend the inheritance, and 
 
 (m) 1 Term Rep. 763. 
 
 (I) Qu. this. If the person claiming under the settlement should 
 sell the estate to two distinct purchasers, who were equally innocent, it 
 seems that the second purchaser, by procuring an assignment of the 
 term, might exclude the first purchaser during the term. 
 
 (*467)
 
 OF ASSIGNMENTS OF TERMS. -on 
 
 the parties approve of the old trustees, they may safely 
 rely upon it, especially in the cases of a purchase or mort- 
 gage, where, the title-deeds always are or ought to be 
 taken in : for if he has the creation and the assignment of 
 the term^in his own hands, no use can be made of it 
 against him. This, however, is never relied upon in 
 practice. And a declaration of trust of a term never 
 should be relied upon, unless all the title-deeds are de- 
 livered to the purchaser. A mere declaration of trust 
 will not protect the possession against a subsequent pur- 
 chaser bona fide, and without notice, \^ ho procures an 
 assignment of the term ; and it has even been held that 
 the custody of the deeds, accompanied by a declaration 
 of trust of the term, is, as against a bare declaration of 
 trust, tantamount to an actual assignment (n). But, as 
 we shall presently see, a case may perhaps occur, in 
 which an assignment of a term would be a protection 
 against a declaration of trust of it, accompanied by the 
 deeds ; so that a prudent purchaser will scarcely ever 
 dispense with an actual assignment of an outstanding 
 tcrm(242). 
 
 Mr. Butler, in his learned and practical notes to Co. 
 Litt. lays down the following rules respecting the cases in 
 which a purchaser should or should not dispense with an 
 assignment of outstanding terms(o). 
 
 " 1st. It may be laid down as a general rule, that 
 wherever a term has been raised for securing the payment 
 of money, as the assignment of it by the trustee for the 
 
 (n) Stanhope v. Earl Verney, Butler's n. (1) s. 13, to Co. Litt. 290. b. 
 (o) See the 13th section of n. (1) to 1 Inst. 290 b. 
 
 (242) Of two equitable incumbrancers, he who has the preferable right 
 to call for the legal estate, is entitled to preference ; though he hath not ac- 
 tually got it in, nor got an assignment, nor even possession of the deed 
 conveying the outstanding legal title ; and though his lien is of subse- 
 (juentdate to the other incumbrance. IVUUamson v. Govdoii's Kxrs. 5 
 Munf. 257.
 
 540 
 
 OP ASSIGNMENTS OF TERMS. 
 
 person entitled to receive, to a trustee for the person 
 obliged to pay the money, is the best possible evidence of 
 (*)the payment of the money ; it may be reasonably re- 
 quired as such. 
 
 " 2dly. In case a term for years has been assigned to 
 attend the inheritance, if, upon a purchase, all the deeds 
 (as well, originals as counterparts) by which the term was 
 created or assigned are delivered to the purchaser, and 
 he is satisfied that the trustee in whom it is there said to 
 be vested has made no prior assignment of it, and that 
 the vendor has not charged the estate with any interme- 
 diate incumbrance, it is difficult to say what possible use 
 can be made of the term against him, or what good can 
 be answered by requiring an assignment of it to a trustee 
 of his ow^n, unless it be to satisfy the requisitions of those 
 to whom he may afterwards have occasion to mortgage or 
 sell the estate. 
 
 " 3dly. But if any of the deeds respecting the term 
 are not delivered to the purchaser, or if he is not satisfied 
 of the trustee not having previously assigned it, or of 
 the vendor having made no intermediate incumbrance, 
 it seems prudent to require an actual assignment of it to 
 a trustee for him." 
 
 With respect to the second of the above rules, the at- 
 tention of the purchaser should be particularly called to 
 the requisite, that the vendor has not charged the estate 
 with any intermediate incumbrance. A vendor may, by 
 fraudulent representations, induce a purchaser to believe 
 that the title-deeds are destroyed or mislaid : and if a 
 purchaser acting under this impression should procure an 
 actual assignment of a term from the person in whom 
 it was vested, it seems impossible to contend that the 
 person in possession of the deeds, although he claims 
 a prior title to the inheritance(p), has any equity against 
 
 (p) See 1 Pow. Mort. 4th edit. 510 ; Evans r. Bicknell, 6 Ves. jun. 
 174 ; Martinez r. Cooper, 2 Russ. 198. 
 (*468)
 
 OF ASSIGNMENTS OF TERMS. 
 
 641 
 
 (*)the subsequent purchaser, who must not be prevented 
 from making the best use he can of the term. It is evi- 
 dent, however, that the person having thus obtained an 
 assignment of a term, must have considerable difficulty 
 in using it as a sword to attack the possession of his 
 adversary(g). 
 
 A purchaser may, in some cases, be entitled to the be- 
 nefit of an outstanding term, although he has neither an 
 assignment of it, nor the possession of the deeds relating 
 to it. This doctrine will be discussed hereafter(r). 
 
 It may here be remarked, that where a term of years 
 does not necessarily appear on the face of the conveyance, 
 it should be assigned to attend the inheritance by a sepa- 
 rate deed, and no notice should be taken of it in the con- 
 veyance of the fee, for the legal estate must prevail at 
 law(5)(243) ; and it is a consequence of this rule, that 
 where a term of years is assigned by the conveyance of 
 the inheritance, or even mentioned in it as a subsisting 
 term, the owner cannot safely bring an ejectment in his 
 own name only, lest his action should be defeated by the 
 production of the conveyance to him, in which it would ap- 
 pear that the legal estate was vested in his trustee. And 
 here we may correct the common error of excepting the 
 
 (q) Sec ex parte Knott, 11 Ves. jun. 609. 
 
 (r) See post. ch. 17. 
 
 («) See Doe v. Wroot, 6 F>ast, 132 ; and the cases cited in the note 
 to p. 138 ; which have overruled Mr. Justice Gundry's, Lord Mans- 
 field's and Mr. Justice Buller's equitable doctrine as to terms of years. 
 See Doe v. Pegge, 1 T. Rep. 768, n. (o), and several cases in Burr. 
 Cowp. and Doiigl. 
 
 (243) See Jackson V. iSisson, 2 Johns. Cas. 321. Jacksoti v. Pierce, 
 
 2 Johns. Rep. 221. Jackson v. Van Shjck, 8 Johns. Rep. 380, 2d Edit. 
 
 JMoore^s Les. v. Pearce, 2 Hen. & Munf. 236. See also, Fintey v. 
 
 Williams, 9 C ranch, 164. Broivn's Les. v. Galloxvaxj, 1 Peters' Rep. 
 
 299. WUlinkh Les. v. Miles, 1 Peters' Rep. 429. Penn's Les. v. 
 
 Klyne, 4 Dall. 409. Jackson v. Chase, 2 Johns. Rep. 84. Jackson v. 
 
 Dego, 3 Johns. Rep. 422. 
 
 (*469)
 
 542 ^^ ASSIGNMENTS OF TERMS. 
 
 term in the conveyance of the inheritance, as an incum- 
 brance, although it is assigned to attend by a separate 
 deed. This practice is very incorrect, for the term is a 
 protection, and not an incumbrance ; and the exception 
 in the conveyance effectually defeats the advantages which 
 (*)might otherwise be derived from the term being assign- 
 ed by a separate deed. 
 
 IV. Where trustees ought to convey to the beneficial 
 owner, it will, upon a trial, be left to the jury to presume 
 where such a presumption may reasonably be made, that 
 they have conveyed accordingly, in order to prevent a just 
 title from being defeated by a matter of form(i)(244). 
 
 But where the trustee of a term is not joined in an eject- 
 ment brought by his cestui que trust, and the jury state 
 in a special verdict, or a special case, that the term still 
 continues, the plaintiff cannot prevail at law, but will be 
 defeated by the legal estate in his trustee(w)(245). This 
 
 (t) Lade v. Holford, Bull. Ni. Pri. 110, as explained in Doe v. Sy- 
 bourn, 7 Term Rep. 2 ; and Roe v. Reade, 8 Term Rep. 1 18 ; and see 
 Doe V. Staple, 2 Term Rep. 634 ; Tankard v. Wade, Irish Term Rep. 
 162 ; and Hillary v. Waller, 12 Yes. jun. 239. 
 
 (m) Goodtitle V. Jones, 7 Term Rep. 47 ; Roe v. Reade, 8 Term 
 Rep. 118 ; and see Doe v. Staple, 2 Term Rep. 684. 
 
 (244) See Jackson v. Pierce, 2 Johns. Rep. 226. Jackson v. JMoore, 
 13 Johns. Rep. 513. Doe v. Phelps, 9 Johns. Rep. 169. Doe v. 
 Campbell, 10 Johns. Rep. 475. 
 
 (245) Cestuis qrie trust may support ejectment in their own names, in 
 Pennsylvania ; otherwise, they would be without remedy in the case of 
 an obstinate trustee, there being no court of equity in that state : Ken- 
 nedy V. Fury, 1 Dall. 72. An equitable title is sufficient to support the 
 action. Chancery powers having devolved on the courts of law, are 
 exercised through the instrumentality of jurors. Smith v. Patton, 1 
 Serg. & Rawle, 80. So, ejectment will lie against the vendor of real 
 estate, on articles of agreement, after the tender of the purchase money. 
 Haivn V. JVorris, 4 Binn. 77. J\linsker and Bale v. JVIorrison, 2 
 Yeates, 344. So, the vendor may maintain ejectment against the ven- 
 
 (*470)
 
 OF ASSIGNMENTS OF TERMS. 
 
 543 
 
 must inevitably happen where a term of years has been 
 assigned to attend the inheritance upon a purchase of the 
 fee, and the purchaser brings an ejectment in his own 
 name only. It were clearly too much to presume a sur- 
 render of a term which the owner has so anxiously kept 
 distinct from the inheritance(a:). 
 
 This was so stated in the last edition of this work ; 
 but the point has since undergone much discussion, and 
 the leading heads of the argument, and the present state 
 of the law on this head, must now be retraced(I). 
 
 It has long been the policy of our Legislature to encou- 
 rage the free alienation of real property, and secure the 
 titles of 6owaj^(/e purchasers. Our statute book abounds 
 with laws having this tendency. The same spirit per- 
 vades (*)the common law. We are told that the maxims 
 of the common law, which refer to descents, discontinu- 
 ances, non-claims and collateral warranties, are only the 
 wise arts and intentions of the law to protect the possession 
 and strengthen the rights of purchasers. A purchaser is 
 a favorite of a court of equity. It is the settled law of 
 that court, that if a man buy an estate fairly he may get 
 in a term of years, or other incumbrance, although it is 
 satisfied, and thereby defend his title at law against any 
 mesne incumbrance of which he had not notice. It were 
 idle to discuss the policy of our law. In a commercial 
 country like ours, where one great stimulus to enterprise 
 in commerce is the hope to possess territorial ownership, 
 every one is interested in the free interchange of property, 
 and the safety of purchasers. The danger of latent in- 
 
 {x) See Doe v. Scott, 1 1 East, 478. 
 
 (I) This was the statement in the 6th edition. 
 
 dee in possession, if the purchase money be not paid. JVliichell v. De 
 Roche, 1 Yeates, 12. See further, JVeii'^a// v. Wheeler, 7 Mass. Rep. 
 189. 
 
 (*471)
 
 644 
 
 OF ASSIGNMENTS OF TERMS. 
 
 cumbrances renders it necessary that every possible guard 
 should be thrown around purchasers. The policy of the 
 law in this respect led to the received doctrine as to terms 
 of years attendant on the inheritance. Abstractedly con- 
 sidered, nothing can be more absurd than that a purchaser 
 of the fee should procure a term of years, created a cen- 
 tury ago, to be assigned to a trustee for him. But with 
 reference to the protection to be derived from such a term 
 of years, it is of the deepest importance to a purchaser 
 that he should keep it on foot. At law, every term of 
 years in a trustee is a term in gross. This, which was 
 distinctly laid down by Lord Hardwicke(?/), should never 
 be lost sight of. The moment that a court of law acts 
 upon the term as a part of the inheritance, it strikes at 
 the root of the settled doctrines of centuries, shakes the 
 landmarks of the law of real property, and renders inse- 
 cure the title of every purchaser in the kingdom. Our 
 law permits the creation of terms of years for any period 
 of time. Where a term, whether for one hundred or ten 
 (*)thousand years, is created byway of use, it invests the 
 person to whom it is granted with a legal right to the 
 estate during the period specified. It is not necessary by 
 our law, that possession should accompany the legal estate 
 in order that the title of the legal owner should continue 
 unbarred. Possession by my tenant, or by a person with 
 my permission, or acknowledging my title, is in law pos- 
 session by me, and during such tenancy or holding my 
 title remains unimpeached ; therefore, although the legal 
 owners of the fee of an estate have enjoyed it for the last 
 one hundred years, yet that will not affect the existence 
 of a term of years in the trustee to attend the inheritance, 
 because the possession of the legal owner of the fee is 
 the possession of the termor ; their titles are consistent, 
 
 (y) 1 Term Rep. 765. 
 (*472)
 
 OF ASSIGNMENTS OF TERMS. e » - 
 
 nnd support each other(I). The owner of the fee is as a 
 tenant at will to his own trustee. It frequently happens 
 that the owner of the fee is indebted to the term of years 
 for his peaceable possession ; such a possession, therefore, 
 operates as a continual acknowledgment* of the legal 
 title of the termor, and proves its efficacy. The term is 
 anxiously assigned to attend the inheritance ; it does ac- 
 cordingly attend the inheritance ; and the jierformance 
 of the very service for which it was created never can be 
 a ground for defeating its legal operation. Upon prin- 
 ciple, therefore, a term of years assigned to attend the 
 inheritance ought not to be presumed to be surrendered 
 unless there has been an enjoyment inconsistent tviih the 
 existence of the term, or some act done in order to disavoiv 
 the tenure under the termor, and to bar it as a continuing: 
 interest. This has always been the received opinion of 
 the Profession, and particularly of tliat class of the Pro- 
 fession to w^hom titles are more particularly referred. It 
 matters very little what is the opinion of any individual 
 (*)conveyancer ; but the opinion of the conveyancers, as 
 a class, is of the deepest importance to every individual of 
 property in tiie state. Their settled rule of practice has 
 accordingly, in several instances, been adopted as tlic law 
 of the land, not out of resp(;ct for them, but out of ten- 
 derness to the numerous jjurchascrs wiio have bought 
 estates under their advice. 
 
 As judgments, and other incumbrances, are infinite, 
 and it is impossible to rely even upon searches for them, 
 the doctrine, that a term of years attendant on the inhe- 
 ritance should protect a purchaser against incumbrances 
 of which he had not notice, was long since established. 
 This rule of property was shaken in the time of Lord 
 Mansfield, when the courts of law broke down the boun- 
 dary between them and courts of equity ; but the barrier 
 
 (T) See now the 3 & 1 W. 4, c. 27. 
 
 VOL. f. 69 ("473)
 
 ehQ OF ASSIGNMENTS OF TERMS. 
 
 has since been restored, and equitable doctrines are no 
 longer acted upon in courts of law. 
 
 Now, with a view to discuss at large the doctrine of 
 presuming a surrender of a term assigned to attend the 
 inheritance, let us suppose a term of years to be created 
 in the year 1700, by way of mortgage. B. buys the fee 
 in 1760, and pays off the mortgage, and the term is as- 
 signed to a trustee for B., his heirs and assigns, and to 
 attend the inheritance. B. lives till 1819, without dis- 
 turbing the term, or in any manner recognizing its exist- 
 ence. Can it be contended that a surrender of the term 
 should be presumed ? Was not B.''s possession consistent 
 with the existence of the term immediately after the as- 
 signment in 1760 ? If so, when did it become adverse to 
 it ? What necessity was there for any act recognizing the 
 existence of the term whilst jB.'5 continued possession was 
 consistent with the term, and was supported by the trust 
 upon which it was assigned ? If the term ought to have 
 been recognized from time to time, how often should this 
 act be repeated ; once a w^eek, or once a month ? Is there 
 (*)any ground upon which, in 1819, a surrender can be 
 presumed on the strength of 5. '5 possession, which would 
 not be equally operative the first week, nay, the first day 
 after the purchase in 1760? In the absence of evidence 
 of a surrender, it is impossible, on any sound principle, 
 to presume one ; unless the precise instant can be pointed 
 out when the owner of the inheritance was desirous no 
 longer to have the benefit of the term. Without his pre- 
 sumed concurrence a surrender cannot be presimied ; for 
 the trust was not to surrender the term, by which means 
 incumbrances might be let in, but expressly to keep it on 
 foot, in order to exclude them. A surrender by the trustee, 
 therefore, without the direction of his cestui que trust, 
 would be a breach of trust. It is said that the expense 
 of making out a representation to a termor makes the 
 
 (*474)
 
 OF ASSIGNMENTS OF TERMS. ^^7 
 
 term a burden instead of a benefit to the owner of the 
 fee. It is not, however, denied that the owner of the fee 
 may keep on foot a term attendant on the inheritance, 
 and that no court of law can control his power to do so. 
 Where he has exercised his power, and declared, without 
 any limitation of time, that the term shall be attendant 
 on the inheritance, and be in trust for him, his heirs and 
 assigns, does not this mean that the inheritance shall be 
 so attended during all the years to come in the term ? — 
 and if it do, what power has a court of law out of a mor- 
 bid compassion for him, on account of the expense which 
 it may occasion, to presume a surrender of the term which 
 he has so anxiously kept on foot ? particularly as at the 
 very moment that a surrender of the term is presumed, 
 its existence may be required to protect the estate against 
 a latent incumbrance ; and the Court has no means what- 
 ever to ascertain whether there is any such incumbrance. 
 The amount of the expense, too, must depend upon the par- 
 ticular circumstances of each case : and yet it would hard- 
 ly be desirable that the rule should depend on the quan- 
 tum (*)of expense which an assignment would occasion. 
 If, however, expense is to be adverted to, on that ground 
 alone surrenders should not in such a case be presumed ; 
 because that doctrine would weaken a purchaser's reliance 
 on any given term of years ; he would in almost every 
 case search for Judgments. This could not be done with- 
 out expense ; and where a man has been in the habit of 
 confessing judgments, it very seldom happens that satis- 
 faction is entered upon them when they are paid off. 
 This leads to great expense, and difficulty in practice ; 
 because a purchaser expects the judgments to be regularly 
 discharged ; and where even a few years have elapsed 
 since the payment of the debt, if the creditor is living 
 and can be traced, yet he hesitates to do any further act 
 in relation to a transaction which he considered long since 
 closed. 
 
 (*475)
 
 548 ^^ ASSIGNMENTS OF TERMS. 
 
 If the surrender of the terui cannot be presumed at B.h 
 death in 1819, we will suppose the estate to descend to 
 B.h heir at law. Now no man ever heard of an heir at 
 law executing a deed for the sole purpose of recognizing 
 terms of jears attendant on the inheritance, or taking 
 assignments of them tone\'\' trustees to attend, wliere they 
 had already been assigned to trustees of his ancestor's 
 nomination for that purpose. His possession, however, 
 comes in the place of his ancestor's ; and why should he 
 be deprived of the guard which his ancestor created for 
 his benefit ? If his ancestor's possession was the posses- 
 sion of the trustee, it will not be denied that his posses- 
 sion stands in the same relation. The trust is to attend 
 the inheritance, and for B., his heirs and assigns ; there- 
 fore, under the express w^ords of the trust, the heir is en- 
 titled to the benefit of it, and his possession is the pos- 
 session of the trustee. 
 
 Suppose further, that B.^s heir, in 1820, makes a mar- 
 riage settlement without noticing the term of 3'ears, could 
 (*)the term on that account be presumed to be surrender- 
 ed ? It is not tlie practice upon a marriage settlement to re- 
 assign attendant terms to new' trustees ; and no prudent 
 practitioner declares the trust of attendant terms bj^ the 
 settlement, lest the parties upon an ejectment should be 
 defeated by the production of their own conveyance, upon 
 the face of which it would a])pear that the legal estate 
 was outstanding ; and I never sa\\' or heard of a separate 
 declaration to that effect on a marriage. In short, it is 
 not the practice to advert to terms of years on a marriage 
 settlement, or on a devolution from ancestor to heir, 
 although, no doubt, that may have been done, and with 
 propriety, in some particular cases. It is very rare indeed, 
 that upon a marriage the title is investigated. In ninety- 
 nine cases out of a hundred, the parties take up the title 
 with the settlement, conveyance, or will, under which 
 
 (■*476)
 
 OF ASSIGNMENTS OF TERMS. 
 
 549 
 
 the husband or wife immediately claims. This is a fact. 
 In very few instances, and those are upon the marriages of 
 persons of consequence, is the title investigated ; and it 
 has never been the custom to take a new assignment, or 
 make a declaration of trust of a term before assigned to 
 attend the inheritance. At the time of the settlement, a 
 fraud by the husband is not contemplated. No purchaser 
 or mortgagee would accept the title without inquiring 
 for a settlement ; and as the wife would, in most cases, 
 be entitled to dower if there was no settlement, her con- 
 currence in a fine would be required, and that would at 
 once lead to a discovery of the settlement. Neither is 
 it usual to deliver to the trustees of a marriage settle- 
 ment the deeds relating to the term. The tenant for life, 
 it is settled, is entitled to the custody of the deeds. 
 The trustees have merely the custody of one part of the 
 settlement. 
 
 If B.h heir was entitled to the benefit of the term in 
 1820, when he made the settlement, can the execution 
 (*)of the settlement deprive him of its aid ? Is the act 
 inconsistent with the existence of the term ? Was it 
 not declared to attend the inheritatice, and to be in 
 trust for B., his heijs and assigns? Suppose the heir, as 
 is usual, to take a life-estate under the settlement, and to 
 be in of the old use, can it be contended that this portion 
 of the old use is inconsistent with the title of the trustee, 
 although the latter was consistent with the use in fee in 
 the heir ? Why should an act be done to recognize the 
 term ? The assignment of the term to attend the inheri- 
 tance speaks at all times, whilst the possession is consistent 
 with the title of the trustee of the term. The universal 
 practice, not to require assignments of attendant terms on 
 descents or settlements, proves unequivocally the opinion 
 of the Profession, that the possession of the heir, and of the 
 persons claiming under the settlement, is in law the pos- 
 
 (*477)
 
 CPQ OF ASSIGNMENTS OF TERMS. 
 
 session of the trustee of the term. Length of time in this 
 case is unimportant. If we alter the above dates, and 
 state B.h purchase to be in 1800, his death in 1805, and 
 the settlement in 1810, the principle is precisely the same ; 
 and it would startle most men to hear, that because the 
 term had not been recognized since its assignment in 1810 
 a surrender of it may be presumed. 
 
 If, however, the term is a subsisting interest after the 
 settlement, let us suppose the life-estate oi B.h heir under 
 the settlement to be sold immediately afterwards, without 
 the purchaser taking an assignment of the term ; does this 
 let in the presumption of the surrender of the term ? Now 
 the term, it must be repeated, was assigned to attend the 
 inheritance, and in trust for B., his heirs and assigns. If 
 the possession of the heir and his family under the settle- 
 ment was not adverse to the title of the termor, how could 
 the title of the purchaser be so ? The term is a benefit, 
 originally assigned as such, and not an incumbrance. A 
 man should at least reyect a benefit, or act inconsistently 
 (*)with the intention of the person bestowing it, before he 
 is presumed to repudiate it. The event, if the event is to 
 be looked at upon which this question hinges, shows that 
 he required the protection of the term more than any of 
 the former owners ; and if his acts are to be adverted to, 
 we shall find him anxiously obtaining a further assignment 
 of the term. For let us further suppose that B.''s heir, 
 before his settlement, confessed a judgment which was 
 not satisfied, and that the purchaser bought without 
 notice of it, and when he did discover it, procured an 
 assignment of the term to a new trustee, and set up the 
 term as a defence against an execution upon the judg- 
 ment : Unless the presumption of the surrender is an in- 
 evitable co7iclusion from the fact of the purchase, it must be 
 admitted that there is no ground to presume a surrender. 
 But can it possibly be laid down as a rule, that every 
 
 (*478)
 
 OF ASSIGNMENTS OF TERMS. 
 
 551 
 
 attendant term must be presumed to be surrendered 
 against a purchaser who does not take an assignment of 
 the term, or a declaration of the trust of it at the time he 
 purchased ? Why should he do so whilst his possession 
 is consistent with the title of the termor, and expressly 
 within the limits of the original trust ? Would not an 
 assignment, a week, or a month, or a year afterwards, 
 before any adverse claimant appeared, be sufficient to 
 keep the term on foot ? If so, when, at what precise 
 moment does the presumption arise ? 
 
 Where an easement, for example, is enjoyed, or having 
 been enjoyed is discontinued to be used, the user or non- 
 user forcibly lets in the presumption of a grant in the one 
 case, and a surrender in the other. But there the act speaks 
 for itself. The whole argument in our case is, that there 
 is a continued enjoyment under the original trusts, which 
 embrace all the persons ivho have successively enjoyed the 
 estate. Therefore, as an enjoyment of the easement would 
 of itself, without any further assertion of right or declara- 
 tion, (*)exclude the presumption of a surrender, so here 
 the continued enjoyment must have the same operation. 
 
 Does then the appearance of the adverse claimant 
 weaken the purchaser's case ? So far from it, that in the 
 great majority of the cases in the books the protection was 
 not sought for until the necessity for it appeared. Equity 
 does not regard notice at the time of getting in the term. 
 The notice, to operate, must be fixed upon the party at 
 the time of the completion of the purchase. Equity too 
 will assist a purchaser where he has not got an assign- 
 ment of the term, but has the better title to it. At law, 
 the term is a term in gross, and the courts of law ought 
 not to enter into a consideration of the equities of the 
 parties ; because they have not the necessary machinery 
 to enable them to come to a due conclusion on the 
 equitable rights. It has been decided in equity, that if 
 
 (*479)
 
 552 
 
 OP ASSIGNMENTS OF TERMS. 
 
 a mortgngor, after a defective mortgage in fee, confess 
 a judgment, the judgment-creditor, although he has the 
 leo-al title, shall be postponed to the mortgagee(2:). So 
 it has been held(a) that a prior mortgagee, having a sub- 
 sequent judgment, may tack the judgment to the mort- 
 gage ; but a prior judgment-creditor getting a subsequent 
 mortgage, cannot do so, because the judgment is not a 
 specific lien upon those lands, that is, he does not go on 
 the security ; he has not trusted to the credit of the estate. 
 A judgment-creditor therefore does not, in equity, stand 
 on the same footing with a purchaser of the estate itself. 
 In a case(6) where there was, 1st, an act of bankruptcy 
 by A. ; 2dly, a settlement for valuable consideration by 
 him, without notice to the parties of the act of bank- 
 ruptcy ; and 3dly, a commission against him ; although 
 (*)the commission over-reached the settlement, yet the 
 persons claiming under it were held to be entitled to 
 the benefit of an outstanding term created prior to the 
 bankruptcy. 
 
 These cases show the rules of equity which flow from 
 the anxiety of the Court to strengthen the title and pro- 
 tect the possession of purchasers ; but if at law the out- 
 standing term is to be presumed to be surrendered, they 
 will no longer afford any protection to purchasers. 
 
 Some stress, in favor of the presumption, has been laid 
 on two circumstances ; the one, that the estate has been 
 quietly enjoyed ; the other, that the deeds relating to the 
 term are in the hands of the owner of the estate. The 
 first circumstance, I have already endeavored to prove, 
 is against the presumption of a surrender. The latter 
 can never operate in favor of the presumption, unless 
 
 (2) Burgh V. Francis, 1 P. Wms. 279, cited. 
 
 (a) Anon. 2 Yes. G63 ; Brace v. Duchess of Marlborough, 2 P. 
 Wms. 491. 
 
 (6) Wilker v. Bodington, 2 Tern. 599. 
 (*-480)
 
 OP ASSIGNMENTS OF TERMS. ceo 
 
 the courts of law deny the power of a man to keep an 
 attendant term in a trustee and the deeds in his own 
 possession. In no case does the trustee of the term keep 
 the deeds. They form part of the muniments of title, and 
 are kept as such by the owner of the fee. If it be neces- 
 sary upon a sale to covenant for their production, by 
 whom but the owner should the covenant be entered 
 into ? and the covenant should of course be entered into 
 by the person holding the deeds. The trustee of the 
 term, even if the deeds were deposited with him, could 
 not be compelled, and would not be advised, to covenant 
 for the production of them. Besides, the case of Doe v. 
 Scott, which will be referred to presently, fully answers 
 that objection. That the judgment-creditor has not the 
 possession of the deeds, and therefore the surrender, if 
 there be one, is not likely to be in his hands, cannot 
 surely be a ground to presume that there actually is such 
 a surrender. If the judgment-creditor has the better 
 equity, which is the true inquiry in these cases, he may 
 (*)file a bill against the purchaser, who would be com- 
 pelled to answer, whether there was a surrender or not. 
 
 Suppose that the assignment, when it is taken, is made 
 not by the original, trustee, who is dead, but by his son, 
 who has regularly taken out administration to him, does 
 that weaken the case ? Certainly the administrator could 
 not know that his father had not surrendered the term in 
 his life-time ; but he was more likely to know the fact than 
 any other person. For the family solicitor would of course 
 peruse the deed on his behalf; and if a surrender had 
 been made of the term, which probably would have 
 passed through his office, he would not have suffered the 
 son, as administrator, to execute an assignment of it. 
 Besides, if some deed is, in the absence of all evidence 
 of its actual execution, to be presumed, why should not 
 a new assignment to attend be presumed, if that were 
 
 vol.. I. 70 (*48])
 
 5^^ or ASSIGNMENTS OF TERMS. 
 
 necessary to support the purchaser's title, rather than 
 a surrender, which would operate to defeat it ? For his 
 possession was consistent with the term, and he trusted 
 his money on the security of the estate itself, which the 
 judgment-creditor did not. 
 
 Fifteen years ago, it was very much the practice to 
 leave terms already assigned to attend the inheritance, in 
 the original trustees, and to be satisfied with a general 
 declaration of trust of all attendant terms. It never 
 occurred to the highly respectable persons by whom that 
 practice was adopted, that a surrender of the terms could 
 be presumed. It were difficult to contend that a mere 
 general declaration is sufficient to keep the term alive, if 
 without it the presumption of its surrender would be let 
 in. The trustee of the term, by force of the original 
 trust, becomes, without any further declaration, a trustee 
 for the purchaser. Now if the trust be a trust for the pur- 
 chaser, and the latter do no act amounting to a disclaimer 
 of the benefit of the trust, how can it vary his rights, that 
 (*)he neglected to re-declare that which has already been 
 expressly declared, viz. that the trustee should hold the 
 term for the original owner, his heirs and assigns, and to 
 attend the inheritance ? 
 
 Lord Hardwicke, in Willoughby v. Willoughby, enters 
 very fully into this doctrine. He admitted, that where 
 an old term has been assigned upon an express trust to 
 attend the inheritance as settled by such a deed, and the 
 conveyancer is satisfied that the uses of the inheritance 
 have never been barred till the new purchase or settle- 
 ment is made, he may very safely rely upon it, because 
 the very assignment carries notice of the old uses. Nay, 
 where the assignment has been generally in trust to attend 
 the inheritance, and the parties approve of the old trus- 
 tees, they may entirely rely upon it, especially in the case 
 of a purchase, where the title-deeds always are or ought 
 
 (*482)
 
 OF ASSIGNMENTS OF TERMS. XKK 
 
 to be taken in ; for if he has the creation and the assign- 
 ment of the term in his own hands, no use can be made 
 of it against him(c). Lord Hardwicke thus states cases 
 in which terms may be safely left in the original trustee ; 
 but it never occurred to him that the circumstance of so 
 leaving them would let in the presumption that they were 
 surrendered. 
 
 It is said that this doctrine withdraws a large portion 
 of the real property m the kingdom from the jurisdiction 
 of the courts of common law. That, however, is not so ; 
 because the title of the termor is the legal one, and there- 
 fore those courts, in such cases, decide upon the legal 
 title, which only is within their province. The term is 
 set up, not in bar of the jurisdiction over the property, 
 but in consequence of the rule of the court itself, which 
 forbids an equitable tenant to recover against the legal 
 title. If even the doctrine had the supposed operation, 
 (*)that would depend upon the law of the land, and if it 
 required alteration should be altered by the Legislature. 
 But the courts of law have been so anxious to support 
 attendant terms, that it has been settled ever since the 
 reign of Charles 2. that such a term shall not be barred, 
 even by a fine levied by the owner of the fee, against 
 the intention of the conusor ; because such an owner 
 of the inheritance must be taken as tenant at Avill to his 
 trustee, and then his possession is the possession of the 
 trustee(^). 
 
 Mr. Justice Buller observed, in Doe v. Pegge(e), that 
 so long ago as the time of Justice Gundry, when an out- 
 standing satisfied term was offered as a bar to the plain- 
 tiff's recovery, that Judge refused to admit it, saying that 
 there was no use in taking an outstanding term but for 
 
 .(c) 1 Term Rep. 772. 
 (rf) 1 A^entr. 82 ; 2 Ventr. 329 ; 1 Sid. 460. 
 (c) 1 Term Rep. 760, n. 
 
 (*483)
 
 ^^g OF ASSIGNMENTS OF TERMS. 
 
 the sake of the conveyancer's pocket ; since which time, 
 Mr. Justice Buller added, it has been the uniform prac- 
 tice, that if the plaintiff be entitled to the beneficial inte- 
 rest, he shall recover possession. It does not appear in 
 what case Mr. Justice Gundrj made this sweeping obser- 
 vation. It is, however, not law at this day, and indeed 
 never was to the extent in which it was laid down ; and 
 Mr. Justice Buller lived to see the law on this subject 
 restored, and his own opinions over-ruled (/*). In the 
 same case of Doe and Pegge, Lord Mansfield observed, 
 that trusts are a mode of conveyance peculiar to this country. 
 In all other countries the person entitled has the right 
 and possession to himself; but in England estates are 
 vested in trustees, on whose death it becomes difficult to 
 find out their representatives, and the owner cannot get 
 a complete title. If it were necessary to take assignments 
 of satisfied terms, terrible inconveniences would ensue, 
 (*)from the representatives of the trustees not being to be 
 found. Sir Edward Northey's clerk was trustee of near 
 half of the great estates in the kingdom. On his death 
 it was not known who was his heir or relative. So that, 
 where a trust-term is a mere matter of form, and the deeds 
 mere muniments of another's estate, it shall not be set up 
 against the real owner. It must excite surprise, that 
 Lord Mansfield should have imagined that any rule, whose 
 tendency it was to subvert what was peculiar to this 
 country, could long subsist while the peculiarity itself 
 was allowed to exist. As well might you admit the rule 
 which excludes the half blood, and yet, in the face of 
 contrary evidence, presume that a brother of the half 
 blood proceeded from the same couple of ancestors as 
 the person last seised(I). Is the whole system of trusts 
 
 (/) See Doe v. Staple, 2 Term Rep. 684. 
 
 (I) This argument, in this and other passages, speaks of the law as 
 
 (*484)
 
 OF ASSIGNMENTS OF TERMS. ct^ 
 
 to be subverted because sometimes an obscure trustee dies 
 without relations ? Or is the legal estate to subsist, or 
 not, according to the expense which a re-conveyance may 
 occasion in any given case ? This doctrine never could 
 stand the test of an accurate investigation, and has long 
 since been over-ruled. They who have best understood 
 the doctrine of equity, have powerfully deprecated their 
 adoption by courts of law. 
 
 In Goodtitle v. Morgan(g), a mortgage for nine hun- 
 dred and ninety-nine years was made in 1761, by Jones, 
 the owner of the fee. In 1767, Jones made a mortgage 
 in fee to Morgan ; and in July 1769 he made a mortgage 
 in fee to another person. In 1768, the nine hundred and 
 ninety-nine years term was assigned to a trustee for Jones, 
 and to attend the inheritance. The first mortgage in fee 
 (*)was before that assignment, and the last after it. In 
 December 1769, he made a mortgage in fee to Sprigg, 
 and the term of nine hundred and ninety-nine years was 
 assigned to a trustee for Sprigg, and he was allowed to 
 recover in ejectment, on the demise of his trustee, against 
 the two prior mortgagees in fee ; although it was speciously 
 argued, that if, previous to the conveyance in 1769 to 
 Sprigg, the defendants had brought ejectments upon their 
 mortgages, neither Jones nor his trustee could have set 
 up his term as a bar to their ejectment; and that, if 
 Jones himself could not set up the term, it seems to be 
 absurd to say that those who claim under him can, for 
 they cannot claim a greater estate than he had. But this 
 argument did not prevail, although Mr. Justice Buller 
 did not put the decision on the right grounds. The case 
 is an authority for my position. It decides clearly that a 
 surrender of the term cannot be presumed on the ground 
 
 ig) 1 Term Rep. 755. 
 
 it was. The reader is aware that the half blood is not now excluded, 
 and that fines are abolished. 
 
 (*4S5)
 
 558 O^ ASSIGNMENTS OF TERMS. 
 
 that the first mortgagee did not take an assignment or 
 a declaration of trust of it. A second mortgagee, there- 
 fore, procuring an assignment of the term, must prevail 
 at law, and also in equity, unless he had notice at the 
 time he advanced his money of the first mortgage. 
 
 In Doe V. Staple(^), Lord Kenyon, C. J. said, that he 
 extremely approved of what was said by Lord Mansfield 
 in the case of Lade v. Holford, that he would not suffer 
 a plaintiff in ejectment to be nonsuited by a term standing 
 out in his own trustee, or a satisfied term set up by a 
 mortgagor against a mortgagee, but would direct a jury 
 to presume a surrender. He added, " I much approve 
 of that ; and where a surrender is presumed, there is an 
 end of the legal title created by the term." 
 
 In Doe V. Sybourn(i), the same learned Judge said, 
 that in all cases where trustees ought to convey to the bene- 
 ficial (^)owner, he would leave it to the jury to presume 
 where such a presumption might reasonably be made ; that 
 they had conveyed accordingly, in order to prevent a just 
 title from being defeated by a mere matter ofform(k). 
 
 Now these rules, it will be observed, are not in favor 
 of presuming a surrender of a term expressly assigned to 
 attend the inheritance against a purchaser. The doctrine 
 that a mortgagor shall not set up an attendant term against 
 a mortgagee does not warrant the presumption of a sur- 
 render in this case. In the former case, there are only 
 the rights of the mortgagor and mortgagee still in ques- 
 tion, and the presumption is made in favor of the mort- 
 gagee. The claim of a third person does not intervene. 
 But does it follow that a surrender should be presumed, 
 not as between the mortgagor and mortgagee, but as 
 
 {k) 2 Term Rep. 696. 
 (i) 7 Term Rep. 2. 
 
 {k) And see Goodtitle v. Jones, 7 Term Rep. 47 ; Roe v. Reade, 8 
 Term Rep. IIS. 
 
 (*486)
 
 OF ASSIGNMENTS OF TERMS. 
 
 669 
 
 between two innocent mortgagees, both claiming under 
 the same mortgagor, where one, after the execution of 
 both of the mortgages, has obtained an assignment of the 
 term ? Why is he to be deprived of the bene fit of his dili- 
 gence ? Why is this plank in the shipwreck to be taken 
 from him ? The doctrine can with much less propriety 
 be applied where the person who has obtained an assign- 
 ment of the term is an actual purchaser of the estate, 
 whilst the person whom he seeks to exclude by the term 
 is a mere judgment-creditor, having only a general lien 
 over all the seller's property, and who perhaps suffered 
 the judgment to remain dormant many years. The objec- 
 tion is not, that a surrender cannot be presumed against 
 an owner of the inheritance^ but that the presumption 
 ought not to be made against a purchaser of the inherit- 
 ance, where the contest is between him and incum- 
 brancers claiming under the seller, but of whose claims 
 (*)he had not notice. Even the case of Goodtitle v. Mor- 
 gan, in the decision of which Mr. Justice Buller concurred, 
 proves that the mere circumstance of executing mort- 
 gages without assigning the term, does not let in the pre- 
 sumption of a surrender against a subsequent mortgagee 
 who takes an assignment of the term. Upon principle, it 
 seems impossible to contend that the circumstance of the 
 last mortgagee not procuring the assignment at the very 
 moment he advances the money can let in the presump- 
 tion of a surrender. 
 
 The rule, that where trustees ought to convey to the 
 beneficial owner a jury may presume such a conveyance, 
 in order to prevent a just title from being defeated by 
 a mere matter of form, is not denied to be a wise one ; 
 but it does not apply to the case under discussion ; for in 
 this case the trustees ought not to surrender the term ; to 
 do so would be to commit a breach of trust ; and the 
 presumption, if it is made, has not the merit of preventing 
 
 (*487)
 
 560 
 
 OF ASSIGNMENTS OF TERMS. 
 
 a just title from being defeated by a mere matter of form, 
 but lets in one title to the destruction of another, where 
 the equities are at least equal ; for if the subsequent pur- 
 chaser has not equal equity with the prior incumbrancer, 
 equity itself will deprive him of the protection of the 
 legal term, although beyond dispute an existing one. 
 
 The case of Keene v. Deardon(/), proves, that posses- 
 sion, where it is consistent with the title of a trustee, 
 cannot be deemed adverse to it ; and that no presumption 
 of a surrender can be made contrary to an express trust. 
 This proves both the propositions in the case under dis- 
 cussion. Possession is certainly evidence of title, but it 
 is not evidence of the quality of the title. It does not 
 prove whether you are seised in fee, or have a mere 
 chattel interest ; nor does it prove whether your title is 
 legal or equitable. And therefore possession may always 
 (*)be shown to be consistent with the title of a trustee of 
 an attendant term. After an express trust to attend the 
 inheritance, a surrender of the term should never be pre- 
 sumed where the rights of the cestui que trust are not 
 invaded by the trustee, and the cestui que trust has done 
 no act to disavow his right to the trust of the term. 
 
 The case of Doe v. Scott(w), is a strong authority 
 against the doctrine of presumption. In 1727, Lord 
 Oxford executed a mortgage for a term of one thousand 
 years. In 1751, Lord Oxford executed a marriage settle- 
 ment, wherein it was stated, that 27,000/., part of the 
 lady's fortune, was to be applied to the discharge of the 
 mortgage. Since that time no mention was made of it, 
 nor was there any other evidence of its existence, till, in 
 a mortgage-deed of the 3d of December 1802, this term, 
 together with another outstanding term of 1709, was as- 
 signed to secure the mortgage-money. It, was insisted 
 
 (/) 8 East, 248. (m) 1 1 East, 478. 
 
 (*488)
 
 OF ASSIGNMENTS OF TEiiMS. en-i 
 
 that a suiTender of the term ought to be presumed, on 
 tsvo grounds: 1st, the recital in the deed of 1751, that 
 there was an adequate sum to be applied in discharge of 
 the mortgage, and no evidence of the term having been 
 acted upon or recognized from that period until 1802, 
 when it was assigned as an outstanding term ; and, 2dly, 
 the possession of the deed itself by Lord Oxford, the 
 owner of the inheritance, which could not have happened 
 unless the mortgage had been paid off. The learned 
 Judge who tried the cause held, that although no notice 
 had been taken of the term from 1751 till 1802, yet the 
 owner of the inheritance having then joined with the re- 
 presentatives of the termors in executing a deed, in which 
 it was recited that the term had not been surrendered, 
 he thought that a surrender could not be presumed. The 
 Court of King's Bench were of the same opinion. Lord 
 Ellenborough, C. J. said, that tliere was no purpose of 
 (*)justice to be ans',vered by presuming a surrender in 
 this case ; nor was it for the interest of the owner of the 
 inheritance to have it assigned to a trustee to attend the 
 inheritance. 
 
 Now this case went much farther than it is necessary 
 to push the doctrine in the case under discussion. In 
 1751, a sum was appropriated to discharge the incum- 
 brance ; and as the deeds were in Lord Oxford's posses- 
 sion, the mortgage must have been paid off. The term 
 had not been assigned to attend the inheritance, and, 
 therefore, for fifty-one years, the period between 1751 
 and 1 802, the term was an incumbrance, and not a benefit ; 
 and yet the assignment of 1802 was held to be evidence 
 against a surrender. Why was it stronger evidence than 
 the assignment of the term in trust for the purchaser 
 in our case ? Here, too, the term had been assigned to 
 attend the inheritance, and therefore the possession was 
 consistent with the express trust of the term ; whereas in 
 
 VOL I. 71 (*489)
 
 rQ2 OF ASSIGNMENTS OF TERMS. 
 
 Lord Oxford's case the freeholder's possession was only 
 consistent with the legal title in the mortgagee, under the 
 equitable rule, that the mortgagee, when paid off, became 
 a trustee for the owner of the inheritance. It is said, 
 however, that there it was for the benefit of the owner 
 that the term should be kept on foot. What circumstance 
 in the supposed case required that the term should be 
 presumed to be surrendered ? Was not the purchaser the 
 owner of the estate ? And was it not for his benefit that 
 the term should be deemed a subsisting interest ? 
 
 Lord Eldon's opinion docs not accord with the doctrine 
 of presuming surrenders of attendant terms. In Evans y. 
 Bicknell(w), which was decided in 1801, that learned 
 Judge observed, that it seemed to him rather surprising, 
 if he might presume to say so, that Lord Mansfield, who 
 (*)concurred with Mr. Justice Buller in a great many of 
 these equitable principles in a court of law, should not 
 have attended to these distinctions, which perhaps will 
 be found in the very principles upon which the Court of 
 Chancery exists. Titles to property may possibly be 
 found to be very considerably shaken by the doctrine of 
 the Court of King's Bench as to satisfied terms. The 
 law as to that here is, that a second mortgagee having no 
 notice of the first mortgage, if he can get in a satisfied 
 term, would do that which is the true ground of the de- 
 cision, though it is not put upon that by Mr. Justice 
 Buller ; he would, as in conscience he might, get the legal 
 estate, and by virtue of that protect his estate against the 
 first mortgagee, having got a prior title, the conscience 
 being equal betu een the parties. Wiien once it is said at 
 law that a satisfied term should not be set up in ejectment, 
 the whole security of that title is destroyed ; and there- 
 fore, even with tlie modern correction that doctrine has 
 received in the late cases, which is, that you may set up 
 
 (n) 6 Ves. jun. 184. 
 (*490)
 
 OF ASSIGNMENTS OF TERMS. 5g3 
 
 the term, though satisfied, and put it as a question to the 
 jury, whether an assignment is to be presumed, it seemed 
 to his Lordship very dangerous between purchasers ; and 
 the leaning of the Court ought to be that it was not as- 
 signed : and he fully concurred with Lord Kenyon, that 
 it is not fit for a Judge to tell a jury they are to presume 
 a term assigned because it is satisfied ; but there ought to 
 be some dealing upon it, or you take from a purchaser the 
 effects of his diligence in having got in the legal estate, 
 to the benefit of which he is entitled. Then suppose the 
 law takes upon itself to decide the question between pur- 
 chasers upon this subject, can it decide upon the same 
 rules as courts of equity, as upon the question of notice ? 
 It will be said upon this doctrine a court of equity does 
 inquire into this ; and it is a rule of property in equity, 
 and therefore ought to be a rule of property at law. But 
 (*)how has it become a rule of property in equity ? In 
 equity, the first mortgagee may ask the second whether 
 he had notice. If that defendant positively denies notice, 
 and one witness only is produced, to the fact of notice, 
 if the denial is as positive as the assertion, and there is 
 nothing more in the case, a court of equity will not take 
 the benefit of the term from the second mortgagee, placing 
 as much reliance on the conscience of the defendant as 
 on the testimony of a single witness, without some cir- 
 cumstances attaching a superior degree of credit to the 
 latter. It is impossible, therefore, that the rule of pro- 
 perty can be said to be the same as at law ; and if it 
 stands upon different principles, in fact, it is perfectly 
 different. 
 
 In Maundrell v. Maundrell(o), which was decided in 
 1804, the question arose, whether a purchaser could pro- 
 tect himself against dower by a prior term of years, unless 
 it was actually assigned to a trustee for him ; and the 
 
 (o) 10 Ves. jun. 246. 
 
 (*491)
 
 564 
 
 OF ASSIGNMENTS OF TEUMS. 
 
 Lord Chancellor ultimately decided that he could not ; 
 because such had been considered the general rule ; but 
 his Lordship, upon principle, thought that the purchaser 
 would, as in other cases, be entitled to the benefit of the 
 term without an actual assignment. He said that he 
 doubted whether it was possible upon principle, to say the 
 assignment of a term that has been once assigned to attend 
 the inheritance, is necessary from time to time whenever 
 that inheritance is made the subject of purchase(7?J. 
 
 The opinion of Lord, Eldon therefore is, that an 
 assignment of the term is not necessary upon every 
 new purchase ; and this is a powerful authority against 
 the presumption of a surrender, on the mere ground that 
 the term has been left undisturbed. Maundrell v. Maun- 
 drell is not an authority requiring an assignment in every 
 (*)case upon every new purchase ; but whilst it estab- 
 lishes the necessity of an actual assignment, in order to 
 bar dower, is a grave authority for the continued existence 
 of the term in other cases, although it is left in the jiame 
 of the original trustee(I). 
 
 In the late case of Doe on the demise of Burdett v. 
 Wright, B. R. T. T. 1819, a term assigned in 1735, to 
 raise an annuity, and subject thereto to attend the inhe- 
 ritance, was presumed to be surrendered. No act had 
 been done to acknowledge the term, except that, upon a 
 sale in 1801 of a small part of the estate, for redeeming 
 the land-tax, the owner had covenanted to produce to the 
 purchaser the deeds creating and assigning the term. 
 There, however, the ejectment was by a person claiming 
 as heir, against a person who claimed also as \\e'n-{q). 
 
 But in the cases of Doe v. Hilder, and Doe v. Stace, 
 
 {y) 10 Ves. jun. 259 ; and see p. 26D. 
 - {q) MS. ; S. C. 2 Barn. & Aid. 710. 
 
 (I) This also applies to the old law. Now a Avife's right to dower 
 is in her husband's power. 
 t*492)
 
 OF ASSIGNMENTS OF TERMS. 
 
 565 
 
 B. R.(r),(ll), which were decided afterwards in the same 
 (*)term, it aiDpeared that the ejectment was brought by 
 a judgment-creditor, who had issued an elegit against 
 Richard Newman. In 1762 a regular mortgage-term of 
 one thousand years was created by Francis Hare Naylor, 
 the owner of the fee, and several other charges were 
 made previously to and in the year 1770. In 1771, 
 Naylor devised the estate to trustees, to sell. In 1779, 
 they sold, and conveyed to John Newman in fee, and the 
 one thousand years term was, in consideration of the pay- 
 ment of the mortgage-money, assigned by a separate deed 
 (7th October, 1779) to a Mr. Denman, his executors, ad- 
 ministrators and assigns, " in trust for the said John 
 Newman, his heirs and assigns, and to be assigned, con- 
 veyed, and disposed of, as he or they should direct and 
 appoint. And in the mean time, and until such appoint- 
 
 , (r) MS. ; S. C. 2 Barn. & Aid. 782. 
 
 (II) Another question of great importance arose in these causes, which 
 it became unnecessary to decide, viz. whethey the statute of frauds 
 enabled a judgment-creditor, under an elegit, to take the term in exe- 
 cution. The statute, it is decided, did not intend to place the right of 
 the creditor on the same footing against an equitable as against a legal 
 estate ; and it does not enable him to take in execution an equity of 
 redemption, or a trust in a leasehold. Now every attendant term is at 
 law a chattel real — a term in gross, and therefore cannot be taken in 
 execution for the debt of the cestui que trust. The Legislature never 
 intended to reduce a fee-simple estate with an attendant term to a level 
 with a chattel interest, and to give the right of execution as if it were 
 a chattel interest, where, under the same circumstances, a mere chattel 
 interest would not be within the statute. The act in all its provisions 
 is inaccurately framed, and it is not desirable that another new con- 
 struction should at this day be given to it. A term outstanding has 
 always been considered to protect against judgments ; but if the con- 
 struction above alluded to were to prevail, it would be necessary to 
 search for judgments in every case, in order to ascertain whether any 
 writ of execution had issued, or rather the term would be no protec- 
 tion, because it could not be discovered whether a writ had issued ; 
 but see Doe v. Phillips, 1 Crompt. & Mee. 450. 
 
 (*493)
 
 ^QQ OF ASSIGNMENTS OF TERMS. 
 
 7nent to attend and wait upon the freehold and inheritance 
 of the same premises,''^ to protect the same against mesne 
 incumbrances. In October 1790, John Newman died 
 intestate, leaving Richard his brother and heir. In No- 
 vember 1797, Richard died, leaving Richard, his son, his 
 heir, then a minor. On 23d August 1808, the last named 
 Richard gave a warrant of attorney to the lessor of the 
 plaintiff to enter up judgment for 4,000/., which was 
 immediately done. In 1810, Mr. Denman, the trustee 
 of the term, died intestate, leaving John Denman, his 
 son and next of kin. In October 1814, Richard New- 
 man, on his marriage, settled the estate to the use of him- 
 self for life, with remainder over in strict settlement. In 
 June 1810, he sold and conveyed his life-estate to his 
 mother, and she devised the estate to the persons under 
 whom the defendant claimed as tenant. In 1817, the 
 (*)lessor of the plaintiff issued an elegit, without having 
 revived the judgment, and had an inquisition taken there- 
 on, which was set aside for irregularity. In 1818, he re- 
 vived the judgment by scire facias^ and issued an elegit ; 
 and on 13th March 1818 an inquisition was taken there- 
 on, and then the ejectment was brought. On 17th March 
 1819 (after the commencement of the ejectment), John 
 Denman, as the son and next of kin of Mr. Denman, took 
 out letters of administration to him, and by a deed, dated 
 the 19th of the same month, he, by the direction of the 
 devisees of the purchaser, in the usual and regular way, 
 assigned the term to John Newman, a trustee for them, 
 and to attend the inheritance. The deed creating the term 
 ivas produced by the purchaser of the largest part in value 
 of the estate comprised in it. The deed assigning the term 
 to attend on the purchase by Mr. Newman, in 1779, and the 
 last deed of assignment, were produced by the defendants. 
 The learned Judge thought that the question as to a sur- 
 render ought to go to a jury. His Lordship told them, 
 
 (*494)
 
 OF ASSIGNMENTS OF TERMS. 
 
 567 
 
 that it seemed to him that as a trustee was appointed 
 forty years ago, and had never done any act, but that the 
 party who was beneficially interested had always acted 
 on the property, he (the learned Judge) could not consider 
 an administration taken out but a week before the assign- 
 ment as at all effective ; that he considered to be done 
 merely for the purpose of setting up this old term to 
 defeat the plaintiff; and under such circumstances he 
 should leave it to them to presume it had been surren- 
 dered, vi'hich according to the learned Judge's report 
 the jury expressly said they did. The Court of King's 
 Bench, after hearing the case argued at considerable 
 length, and taking time to consider, confirmed the learned 
 Judge's direction. 
 
 Lord Chief Justice Abbott delivered the following 
 judgment, according to the short-hand writer's note : 
 
 (*)" This was an action of ejectment tried before my 
 brother Park at the last assizes for the county of Sussex. 
 The title of the lessor of the plaintiff was upon a judg- 
 ment recovered in the year 1808, against Richard 
 Newman, for 8,000/. and a writ of elegit and inquisition 
 thereupon in the year 1818, finding Richard Newman 
 seised in fee of the premises in question. It was further 
 ])roved, that the defendant occupied the land as a tenant, 
 and had declared that he considered it to belong to 
 Richard Newman, and had delivered to him a notice of 
 a judgment received in June 1818, from the lessor of the 
 plaintiff. On the part of the defendant it was proved, 
 that on the 2od of June 1762, Francis Hare Naylor had 
 conveyed the premises in question, inter alia, to Thomas 
 Carter, for a term of one thousand years, by way of mort- 
 gage, for securing the sum of 6,000/. : That in the year 
 1779, the mortgage was paid off, and deeds were then 
 executed, whereby, in effect, the term was assigned to 
 ^Villiam Denman, in trust for John Newman, a purchaser 
 
 (*495)
 
 568 
 
 OF ASSIGNMENTS OF TERMS. 
 
 of the premises, nnd to attend the iiiheritnnce : That in 
 the month of October 1814, the said Richard Newman, to 
 whom the premises had descended from the purchaser 
 John Newman, made a settlement upon his intended mar- 
 riage, whereby he conveyed the premises to trustees and 
 their heirs, to the use of himself for life, with a remainder 
 to his intended wife for life, remainder to the issue of the 
 marriage, and reversion to himself in fee : That in the 
 year 1816, the said Richard Newman conveyed his life- 
 estate to Sarah Newman, the mother of Richard, as a 
 security for 1,162/., which aj)pears to have been money 
 then due from him to her : That Mrs. Newman, the mother, 
 died in the year 1817, having previously devised her in- 
 terest to some other relations : That William Denman, to 
 whom the term had been assigned in trust, to attend the 
 inheritance as aforesaid, died about four years ago ; and 
 (*)on the 19th of March last, his son took out administra- 
 tion to him, and executed a deed, purporting to be an as- 
 signment of the term, to a person therein named, in trust 
 for the devisees of Mrs. Newman, the mother. Upon this 
 evidence, two questions were made at the trial : first, 
 whether the term might be presumed to have been sur- 
 rendered and merged in the inheritance ; and if it might 
 not, then, whether it w^as a trust within the tenth section 
 of the statute of frauds, so as not to stand in the way of 
 the execution on the judgment. The learned Judge 
 thought this a case in which a jury might presume a 
 surrender of the term ; and the matter being left to them, 
 they found that the term had been surrendered. A motion 
 was afterwards made for a nonsuit, according to leave 
 given by the learned Judge. A rule to show cause was 
 granted ; and the matter was argued before us very fully and 
 ably. The same two points were made ; and with respect 
 to the statute of frauds a further point also, it being con- 
 tended, first, that the trust of a term of years is not within 
 
 (*496)
 
 OF ASSIGNMENTS OF TERMS. ^gg 
 
 the tenth section of the statute ; and, secondly, if it be, 
 yet in this particular case, the statute would not help the 
 plaintiff, because the termor must be considered as a 
 trustee, not for the debtor, but for the devisees of Mrs. 
 Newman, at the time of issuing the execution. Upon 
 these points, however, it is not necessary for us to pro- 
 nounce any judgment; because we are of opinion, that in 
 this case the surrender of the term might lawfully and 
 reasonably be presumed. It is obvious that if such a 
 surrender had been made, it would not probably be in the 
 power of the plaintiff to produce it, he being a stranger 
 to the particulars of the title which his debtor had in the 
 land. The principal ground of objection to the presump- 
 tion was, that such a presumption had in no instance hi- 
 therto been made against the owner of the inheritance, the 
 former instances being (as it was said) all cases of pre- 
 sumption (*)in favor of such owner. But this proposi- 
 tion appears to be too extensively laid down. One of the 
 instances in which it has been said that a surrender shall 
 be presumed, is the case of a mortgagor setting up a term 
 against his own mortgagee ; and this is said generally, 
 and without distinction, between a mortgagee in fee or for 
 years. But if such a term be set up against a mortgagee 
 for years, and a surrender presumed, the presumption is 
 made against, and not in favor of, the owner of the in- 
 heritance. It is made against his interest at the time of 
 the trial, but in favor of his honesty at the time of the 
 mortgage ; for if the term existed at the time of the mort- 
 gage, he ought in honesty to have secured the benefit of 
 it to the mortgagee at that time, and not to have reserved 
 it in his own power as an instrument to defeat his mort- 
 gage ; and upon the same principle on which a surrender 
 is presumed in the case of mortgagor and mortgagee, we 
 think it may reasonably be presumed in the present case ; 
 though the principle is applicable not to the judgment- 
 
 voL. I. 72 (*497)
 
 570 
 
 OF ASSIGNMENTS OF TERMS. 
 
 creditor but to other persons. One of the general grounds 
 of a presumption is the existence of a state of things 
 which may most reasonably be accounted for by suppos- 
 ing the matter presumed. Thus, the long enjoyment of 
 a right of way by A., to his house or close, over the land 
 of B., which is a prejudice to the land, may most reason- 
 ably be accounted for by supposing a grant of such right 
 by the owner of the land ; and if such a right appear to 
 have existed in ancient times, a long forbearance to 
 exercise it, which must be inconvenient and prejudicial 
 to the owner of the house or close, may most reasonably 
 be accounted for by supposing a release of the right. In 
 the first class of cases, therefore, a grant of the right, and 
 in the latter, a release of it, is presumed. Where a term 
 of years becomes attendant upon the reversion and 
 inheritance, either by operation of law, or by special 
 (*)declaration upon the extinction of the objects for which 
 it was created, the enjoyment of the land by the owner 
 of the reversion, thus become the cestui que trust of the 
 term, may be accounted for by the union of the two 
 characters of cestui que trust and inheritor, and without 
 supposing any surrender of the term ; and therefore, in 
 general, such enjoyment, though it may be of very long 
 continuance, may possibly furnish no ground to presume 
 a surrender of the term. But where acts are done or 
 omitted by the owner of the inheritance, and persons deal- 
 ing with him as to the land, which ought not reasonbly 
 to be done or omitted, if the term existed in the hands of 
 a trustee, and if there do not appear to ])c any thing that 
 should prevent a surrender from having been made ; in 
 such cases the things done or omitted may most reason- 
 ably be accounted for by supposing a surrender of the 
 term, and therefore a surrender may be presumed. We 
 think there are such things in the present case. In the 
 year 1814, Richard Newman, the debtor, and then owner 
 
 (*498)
 
 OF ASSIGNMENTS OF TERMS. 
 
 671 
 
 of the inheritance, made a settlement upon his intended 
 marriage, which took place immediately. Upon such an 
 occasion, the title and title-deeds of the husband would 
 probably be looked into by professional men on the part 
 of the husband, at least, if not on the part of the wife 
 also; and notwithstanding the assertion of one of the 
 learned gentlemen who argued this case on the part of 
 the defendant, and by whom we were informed that it is 
 not usual on such occasions to take any notice of an out- 
 standing satisfied term, we cannot forbear thinking that 
 such a term always ought to be, and frequently is, in 
 some way noticed, either by the deed of settlement, or 
 by some separate instrument ; because, if not noticed, 
 and the termor not called upon to assign the term to the 
 uses of the settlement, nor any declaration of trust made 
 of it to those uses, it may afterwards be made an instru- 
 ment (*)of defeating the settlement. The title-deeds 
 usually remain with the husband, and if he be driven by ne- 
 cessity to borrow money, he may meet with a lender who 
 has no notice of the settlement, and by handing over his 
 deeds, and obtaining an assignment of the term to him and 
 other conveyances, give to him a title that must prevail 
 both at law and in courts of equity against the settlement. 
 The supposed practice of taking no notice of outstanding 
 terms, on such an occasion, appears to have been insisted 
 upon before Lord Hardwicke, in the case of Willoughby 
 V. Willoughby, as aj)plied to marriage settlements and 
 purchases. But that very learned Judge, in giving his 
 judgment in that case, says he had inquired of a very 
 learned and eminent conveyancer, and could not fmd that 
 there had been any such general rule ; and he afterwards 
 proceeds to say, " Where the assignment has been ge- 
 nerally in trust to attend the inheritance, and the parties 
 approve of the old trustees, they may safely rely upon it, 
 especially in the case of a purchase or mortgage, where 
 
 (*499)
 
 572 
 
 OF ASSIGNMENTS OF TER5[S. 
 
 the title-deeds always are, or ought to be, taken in ; for 
 if he has the creation and assignment of the term in his 
 own hands, no use can be made of it against him." Such 
 instances as these may account for the practice in many 
 cases, but cannot constitute a general rule. If in the 
 present case it had appeared that the deeds relating to 
 the term were delivered to the trustees of the marriage 
 settlement as one of the securities for the settlement, the 
 case would have stood on a very different ground. The 
 marriage settlement, however, is not the only occasion on 
 which we think it may most reasonably be supposed that 
 this term, if existing, would have been brought forward. 
 It appears that in 1816 the same Richard Newman, 
 being then indebted to his mother, and desirous of giving 
 her security for the debt, prevailed upon his wife to join 
 with him in conveying to her the interest they derived 
 (*)under the settlement. Upon this occasion, an assign- 
 ment of the term, or a delivery of the deeds relating to it, 
 would undoubtedly have been most important acts in 
 favor of the mortgagee, because they would have pro- 
 tected the mortgagee against any subsequent use of the 
 term to defeat her mortgage. On both these occasions, 
 therefore, the term, if existing, could not have been 
 wholly disregarded without either want of integrity on 
 the part of Richard Newman, or want of care and caution 
 on the part of the professional men engaged in those trans- 
 actions. We think it more reasonable to presume a prior 
 surrender of the term, than to presume such deficiencies. 
 It certainly might not unreasonably be left to a jury to 
 consider to what cause they would attribute these omis- 
 sions, and this was done at the trial. It is true, that an 
 assignment of the term was taken in a few days before the 
 trial, for the alleged benefit of the legatees of the mort- 
 gagee, Mrs. Newman, on w hose behalf, we were informed, 
 the present cause was defended. But this tardy act can-
 
 OF ASSIGNMENTS OF TERMS. 5-^3 
 
 not be of any avail, and leads not to any presumption. 
 The assignment was made by the administrator of the 
 person in whom the term had been vested, and the ad- 
 ministrator would probably be ignorant of any previous 
 surrender made by the intestate. The time for dealing 
 with the term on behalf of the mortgagee was the date 
 of the mortgage. An actual assignment of the term is 
 more regarded than its mere quiescent existence. It will 
 defeat the title to dower, which its existence only will 
 not, according to the case of Maundrell and Maundrell, 
 Vesey, jun. vol. vii. page 567, and vol. x. page 246, and 
 the cases there cited. These observations respecting the 
 settlement and the mortgage receive additional force from 
 the consideration of their dates. They were both long 
 subsequent to the judgment, and they are the acts of a 
 person materially interested in protecting the land from 
 (*)the judgment, and excluding all questions on the sub- 
 ject of priority, or otherwise ; in the case of the settlement, 
 for the sake of his intended wife, and the issue that he 
 might expect by her ; and in the case of the mortgage, 
 for the sake of the mortgagee, to whom he was so nearly 
 related, and who also was evidently a favored creditor. 
 And it cannot be denied, that an actual assignment of the 
 term would have been in many respects more operative 
 against the judgment than its mere existence. In the case 
 of the mortgage, it would have put an end to all question 
 upon the statute of frauds, by making the termor specifi- 
 cally a trustee for the mortgagee before execution issued, 
 according to the case of Hunt v. Coles, 1 Com. Rep. 226. 
 For these reasons we think the verdict ought not to be 
 disturbed, and the rule must therefore be discharged." 
 It will at once be observed, that this is a stronger case 
 in favor of the existence of the term than that which we 
 have been considering. There was no circumstance which 
 pointedly called for an assignment of the term before the 
 
 (*501)
 
 574 ^^ ASSIGNMENTS OF TERMS. 
 
 period when one was made ; for an assignment is never 
 made by reason of descents, or of a marriage settlement. 
 Previously to the sale, therefore, the presumption could 
 not on any reasonable ground be let in ; and if not, such 
 a presumption ought not to have been made at all. There 
 could be no doubt which ought to be preferred, the pur- 
 chaser, or the judgment-creditor. The latter obtained his 
 judgment on a warrant of attorney, and slept on his secu- 
 rity for ten years, and never had a specific lien on the 
 estate, but a general security riding over the whole of the 
 seller's property ; whereas the purchaser not only bought 
 the estate itself without notice of the incumbrance, but 
 had possession of all the deeds relating to the term, to 
 the possession of which he was entitled as a purchaser. 
 That circumstance alone, even as between two mort- 
 gagees of the estate itself, both equally innocent, would 
 (*)give the better right to the one holding the deeds(.9). 
 As between a purchaser of the estate and a mere judgment- 
 creditor, the rule applies with irresistible force. The pur- 
 chaser, therefore, clearly had the better equity; and the 
 presumption of the surrender, without any evidence upon 
 which to ground it, let in the judgment-creditor on the 
 estate in the hands of the purchaser, although, according 
 to equity and good conscience, the creditor had no title 
 to rank as such. The presumption too let in tlie judgment- 
 creditor on the estates provided for the wife and children by 
 the marriage settlement ; for the term could not be presum- 
 ed to be surrendered against the purchaser, and in exist- 
 ence for the benefit of the wife and children. And yet 
 counsel in very great practice never knew an instance of 
 an attendant term being re-assigned on a marriage, and 
 have suffered hundreds of settlements to be executed with- 
 out requiring such an assignment ; so that the provisions 
 made for very many families may be deeply incumbered 
 
 (s) Stanhope v. Earl Veiney, 2 Eden, 81. 
 (*502)
 
 OF ASSIGNMENTS OF TERMS, 
 
 575 
 
 if this new rule is to be followed. It will not be con- 
 tended that the subsequent conduct of the purchaser of 
 the life-estate ought to affect the wife and children of the 
 seller ; and yet it is undeniable that the circumstance of 
 the purchaser not taking an assignment of the term was 
 relied upon as a strong ground in favor of the presump- 
 tion. The assignment was made by Denman's adminis- 
 trator, who was regularly such as next of kin, and not 
 a mere stranger, procuring a limited administration de 
 bonis no7i, for the purpose of assigning the term. 
 
 The above decision powerfully attracted the attention 
 of the Profession. An ejectment was afterwards brought 
 by the Newmans and Denman, against Putland, who 
 recovered in the former ejectment, to recover back the 
 estate(i). It came on at the assizes for Sussex, before 
 (*)Mr. Baron Garrow. Upon this ejectment the lessors 
 of the plaintiff proved a mortgage in fee of the estate to 
 Thomas Mark wick, in August 1814, by Richard New- 
 man the son, who afterwards made the marriage settle- 
 ment. By this mortgage, which it had not been con- 
 sidered necessary to produce upon the former ejectment, 
 all deeds were granted ; and it contained a general decla- 
 ration of the trust of all terms of years for the mortgagee. 
 The assignment of the term from Carter of the 7th of 
 October 1779, was delivered over to Markwick, and was 
 contained in a schedule of title-deeds made at the time 
 of the mortgage, and signed by Markwick. By a deed 
 dated the 9th of September 1819, Newman, the trustee 
 of the one thousand years term, declared that he would 
 stand possessed of it in trust for Markwick, and to secure 
 the mortgage-money due to him. It was argued on the 
 part of the defendant that it would be inconvenient that 
 one Judge should direct a jury to presume a surrender of 
 the term, and another direct the contrary. In the mort- 
 
 (0 Doer. Putland. See Bartlett v. Downes, 3 Barn. & Cress. 616. 
 
 (*503)
 
 576 
 
 OF ASSIGNMENTS OF TERMS. 
 
 gage to Markwick there was no notice of any particular 
 term, and no assignment was taken of the one thousand 
 years term ; Newman might therefore have parted with 
 the term upon a new loan. The assignment in March 
 1819 was not at all for the benefit of Markwick; there 
 was no acting upon the term from 1779 till 1819. No 
 notice was taken of it in the marriage settlement. The 
 learned Judge said, in charging the jury, that the facts 
 were very different now to those proved on the former 
 trial ; and his present view was sanctioned by the sug- 
 gestion in that very case. Here the deeds were handed 
 over to the mortgagee before the settlement and convey- 
 ance, which accounts for the term not having been men- 
 tioned in those securities. The circumstance of the deed 
 having been scheduled and handed over to Markwick 
 shows that the term had not been surrendered. The 
 (*)learned Judge directed the jury to find a verdict for the 
 plaintiff. The jury found that the term was subsisting, 
 and reserved any question of law. 
 
 In Trinity term 1820 the defendant moved for a new 
 trial ; the learned Judge who tried the cause re-stated 
 the point, upon which he directed the jury, and observed 
 that the case had excited a great deal of attentiouj and 
 had occasioned the observations which have already been 
 submitted to the learned reader(M). The Chief Baron 
 said, that he should like to have the point argued on the 
 presumption of surrender. From his habits in West- 
 minster Hall, his Lordship added, he had travelled more 
 than most men through the law relating to this case, and 
 he did not think the doctrine of presumption a correct 
 doctrine. It is a very serious point; and of late the 
 doctrine has been carried to a very frightful extent. Mr. 
 Baron Graham observed, that he had never suffered these 
 
 (m) They appeared at the time in the shape of a letter from the au- 
 thor to Mr. Butler. 
 (*604)
 
 OF ASSIGNMENTS OF TERMS. 
 
 577 
 
 presumptions, exce{)t in cases very strongly warranted, 
 and where nothing was shown to the contrary. The 
 Cliief Baron added, that he never desired a jury to pre- 
 sume where he did not believe himself. The Court gave 
 the defendant leave to argue the point upon the statute of 
 frauds, upon a case to be stated(a:). The point, there- 
 fore, as to the surrender of the term, was put at rest. 
 The case upon the other point was prepared, but the suit 
 has since been compromised, highly to the advantage of 
 the Newmans. 
 
 The attention of Lord Chancellor Eldon was quickly 
 drawn to the doctrine of the Court of Kin2:'s Bench. In 
 (*)the Marquis of Townsend v. Bishop of Norwich, on 
 the 27th January 1 820, his Lordship observed : — 
 
 The legal interest in the advow^son is unquestionably 
 in Mr. Ainge, for a term of years, which, as I understand, 
 has been expressly assigned to attend the inheritance. 
 I do not inquire whether there may have been interme- 
 diate transactions since the creation of the term, which 
 might induce some people to think a surrender of it 
 should be presumed, further than to remark, that having 
 in days, which perhaps may be thought days of yore, 
 passed about two years, by no means unprofitably, in the 
 office of Mr. Duane, and during which I had frequent 
 opportunities of knowing the opinions entertained by 
 Mr. Booth, Mr. Fearne, and other eminent conveyancers 
 of that day, I well know that they were in the habit of 
 proceeding on notions relative to satisfied terms, which, 
 notwithstanding some modern decisions, I would not 
 advise conveyancers to depart from(?/). 
 
 (x) It appears, therefore, that the presumption was made on the first 
 ejectment, against the real facts and merits of the case as they ultimate- 
 ly appeared. This powerfully shows that such a presumption ought 
 not to be made on light grounds. 
 
 {ij) From Mr. Wilson's note. 
 
 VOL. I. 73 ^, (*505)
 
 r«g OF ASSIGNMENTS OF TERMS. 
 
 Upon another occasion his Lordship observed: For- 
 merly assignments were not considered necessary, because 
 the old trustee would be a trustee for you, although you 
 
 mio"ht not like him. It was never considered that the 
 
 o 
 
 presumption of a surrender was to be made because 
 some particular act had not Ijeen done. Lord Kenyon 
 thought that some act must be done to presume a sur- 
 render ; but now it is said, that if no act is done, you 
 may presume a surrender : I cannot go the length which 
 I see some late cases go, where there is no proviso. 
 They have raised the presumption from a transaction 
 where they say the term would have been assigned if 
 not surrendered. I say that the circumstance does not 
 let in that presumption ; because the purchaser must 
 know that the term will be held in trust for him, and he 
 (*)may leave it where it is, to save the expense of taking 
 out administration(2). 
 
 His Lordship again took occasion to observe, in Hayes 
 V. Bailey, 15th March 1820: There is now a modern 
 doctrine of presuming surrenders. When I first came 
 here, every old lawyer thought assignments of terms un- 
 necessary ; and as to the principle, that the term would 
 be presumed to be surrendered if it had not been assigned 
 on marriages, &c. ; it was then thought that there was no 
 occasion to assign, for if it had once been assigned to 
 attend, the assignee will be a trustee for you. They then 
 never thought it necessary to have it assigned on such 
 occasions. I remember Mr. Lloyd used to say, that an 
 old term was worth two inheritances. You sec Lord 
 Kenyon got as far as this before he would presume a sur- 
 render ; you must show that there had been some dealing 
 with it ; but it seems to be the law now, that if you 
 
 (a) From the Author's note. .-^ 
 
 (*606) I
 
 OF ASSIGNMENTS OF TERMS. 579 
 
 show that there has been no dealing with it you are to 
 presume it surreudered(a). 
 
 In the late case in the Exchequer, of Deardon v. Lord 
 Byron, the Chief Baron again expressed his disapproba- 
 tion of this doctrine of presumption(6). 
 
 Upon the appeal in the House of Lords, in Cholmondley 
 IK Clinton(c), the Lord Chancellor, with a reference to 
 a deed of the year 1704, by which a term of two hundred 
 years was created, with a proviso for the cesser of the 
 term, but which, as the circumstances upon which that 
 term was to determine had not taken effect, remained a 
 subsisting term, and was assigned in 1811, observed : — 
 *' I would wish to call your Lordships' most particular 
 attention to this part of the case, because, unless I now 
 (*)misunderstand, and unless I have misunderstood for a 
 good many years, in which I have been laboriously, in 
 different situations, discharging the duties which belong 
 to the Profession of which I have the honor to be a 
 member, the doctrine upon this subject, there arise out 
 of the circumstances vidiich I am about to mention many 
 important observations bearing upon this case, with a 
 great degree of importance, because bearing, unless I 
 misunderstand the case very much, upon the titles to 
 property in this kingdom. My Lords, tliis deed of 1704 
 provides, as I before stated, for the cesser of the term, 
 that is, of the interest which the term creates. Let me 
 suppose for a moment, that there had been no such de- 
 claration with respect to the cesser of the term, or what 
 comes to the same thing, that the state of things has not 
 yet arisen in which the term is to cease, that term created 
 in 1704, would, according to all the ideas that I ever had 
 of the law of this country (I am speaking now of what 
 
 (o) From Mr. Jacob's note. 
 (6) MS. 
 
 (c) MS. Doe V. Cooke, 6 Bing, 174 ; 3 Moo. & Payne, 411, S. C. 
 
 (*607)
 
 580 
 
 OF ASSIGNMENTS OF TERMS. 
 
 would have been done tvventj-five years ago, instead of 
 speaking particularly of the present time,) be considered 
 as a term which, whether the instrument that created it 
 or not did so declare, would be attendant upon the inhe- 
 ritance when the ends and trusts of it were satisfied ; that 
 is, it would be considered as a term, where neither pre- 
 sumption that it was satisfied, nor presumption that it was 
 surrendered, would at that period have been entertained, 
 unless there had been some dealing with the term which 
 would authorize a presumption either of the one nature 
 or of the other, but it would be taken to be, what, in the 
 language of those who are now no more, I have often 
 heard it stated to be, the best part of a title, namely, that 
 old term that could be got in to protect the inheritance. 
 And I conceive that such a term, whether there was any 
 intention that it should or should not attend the inheri- 
 tance, would be a term held in trust to attend the inheri- 
 tance, (*)protecting the equities of all who had equities 
 during the existence of that term ; all the estates, to a cer- 
 tain extent, that is, during the duration of the term, would 
 be equitable estates, but protecting them all according to 
 the due course, and order, and priority in which they 
 existed, and according to their equities." 
 
 In giving judgment in the same case upon the hearing 
 at the Rolls, vSir Thomas Plumer appeared also to be of 
 opinion against the presumption in such cases(d). 
 
 Since the decision in Doe v. Hilder the point has been 
 repeatedly debated before the different Masters in Chan- 
 cery, upon objections taken by sellers to procure repre- 
 sentations to terms of years, which, they insisted, ought 
 to be presumed to have been surrendered ; but the gene- 
 ral and prevailing opinion has been that that doctrine 
 cannot be maintained; and the Masters have acted upon 
 that principle. 
 
 (f/.) 2 .Jnc. & "VVnlk. 158. 
 
 (-50S )
 
 OF ASSIGNMENTS OF TERMS. 
 
 581 
 
 And finally, in Aspinall v. Kenipson, upon a motion 
 before the Lord Chancellor for a new trial, in which some 
 gentleman at the common-law bar cited Doe v. Hilder, 
 his Lordship observed, "It is not necessary to consider 
 much the doctrine of presumption with reference to the 
 present case, but the case of Doe v. Hilder having been 
 alluded to, and having paid considerable attention to it, 
 I have no hesitation in declaring that I would not have 
 directed a jury to presume a surrender of the term in that 
 case ; and for the safety of the titles to the landed estates 
 in this country, I think it right to declare that I do not 
 concur in the doctrine laid down in that case(e)." 
 
 We may, therefore, be justified in considering the law 
 to stand as it did before the decision in Doe v. Hilder ; 
 and conveyancers of course will follow the advice of the 
 (*)Lord Chancellor, and not depart from the practice 
 which they have hitherto followed. 
 
 In the recent case of Doe v. Plowman(y), where 
 the term had been assigned to attend in 1789 upon a 
 purchase, and in 1808 the purchaser settled the pro- 
 perty upon her marriage, and afterwards devised the pro- 
 perty under a power in the settlement, but neither in the 
 marriage settlement nor of course in the will was any 
 mention made of the term ; it was held upon an ejectment 
 by her heir-at-law that a surrender of the term could not 
 be presumed. Lord Tenterden observed that the doctrine 
 laid down in the cases above discussed he believed had 
 been much questioned, and he inquired whether such a 
 term as this was usually noticed in a marriage settle- 
 ment, and upon receiving an answer in the negative, ob- 
 served, " if that be so, there is no ground for presuming 
 that this term which was assigned to attend the inhe- 
 ritance was ever surrendered." 
 
 (e) L. I. Hall, 5 Dec. 1821, iVoni Mr. Walker's note. 
 (/) 2 Barn. & Adolph. 573. 
 
 (.*509;
 
 QQ2 *^^ ASSIGNMENTS OF TERMS. 
 
 The Vice-Chancellor, Sir John Leach, in'tvvolate cases 
 upon specific performance, as between a seller and a pur- 
 chaser, presumed a term to be surrendered which had not 
 been assigned to attend the inheritance, and which for 
 a long period had not been disturbed. The first case was 
 Emery v. Growcock(g). The other case was ex parte 
 Holman(A.), where it appeared by the abstract of the title 
 delivered to the purchaser, that, by indenture bearing date 
 the 24th of December 1735, and made between Thomas 
 Baker of the one part, and John Marsh of the other part, 
 the said Thomas Baker did grant and demise, amongst 
 other hereditaments, the messuage and premises in ques- 
 tion unto the said John Marsh, his executors, adminis- 
 trators and assigns, for the term of five hundred years, 
 (*)subject to redemption on payment by the said Thomas 
 Baker, his heirs, executors, administrators and assigns, 
 unto the said John Marsh, his executors, administrators or 
 assigns, of the sum of 205/. on a certain day therein men- 
 tioned, that the said sum was not paid accordingly, but 
 that the same with all interest was paid to the executor 
 of the said John Marsh on the 6th day of October 1750, 
 as appeared by a receipt indorsed on the said indenture, 
 but no assignment or surrender of the said premises com- 
 prised in the said term was ever made and executed, and 
 therefore the purchaser insisted that the sellers should at 
 their own expense discover the personal representatives 
 of the said John Marsh, and procure an assignment from 
 them of the said term to a trustee for the purchaser to 
 attend the inheritance. 
 
 The Master to whom the tijtle was referred was of 
 opinion that the term of five hundred years was outstand- 
 ing, and was then vested in the personal representative 
 
 ig) Mar. 1821, MS. 6 Madd. 54. 
 
 (A) 24 July, 1821, MS. ; and in Townsend v. Champernown, l-Yo. 
 & Jerv. 538. 
 
 (*610)
 
 OP ASSIGNMENTS OF TERMS. 5g3 
 
 or representatives of John Marsh the termor, but it did 
 not appear by any evidence before him who was or were 
 such personal representative or representatives ; and the 
 Master was of opinion that it was expedient and neces- 
 sary that the said term should be assigned to a trustee for 
 the purchaser, and that the expense of deducing the title 
 thereto, and of procuring the said term to be so assigned, 
 should be borne and paid by the vendors. 
 
 In an intermediate deed, dated in July 1749, the term 
 was noticed, but in no other deed was it mentioned ; and 
 there were three conveyances of the fee upon sales, one 
 in 1784, another in 1791, and the other in 1792, The 
 Vice-Chancellor was of opinion that a surrender of the 
 term must be presumed. 
 
 V. The importance of obtaining an assignment of all 
 outstanding terms cannot be too strongly impressed on 
 (*)purchasers. If a purchaser has no notice, and happens 
 to take a defective conveyance of the inheritance, defec- 
 tive either by reason of some prior conveyance, or of some 
 prior charge or incumbrance, and if he also takes an as- 
 signment of the term to a trustee for him, or to himself, 
 where he takes the conveyance of the inheritance to his 
 trustee, in both these cases he shall have the benefit of the 
 term to protect him ; that is, he may make use of the 
 legal estate of the term to defend his possession, or, if he 
 has lost the possession, to recover it at common law, not- 
 withstanding that his adversary may at law have the 
 strict title to the inheritance(*)(246). 
 
 Lord Hardvvicke was of opinion that the protection 
 arising from a term of years, assigned to a trustee for a 
 purchaser, should extend generally to all estates, charges 
 
 (t) Willoughby v. Willoughby, 1 Term Rep, 763, per Lord Hard- 
 wicke ; and see For. 69. 
 
 (246) See Williatnsonv. Gordon\9 Exrs. 6 Munf. 257. 
 
 (*611)
 
 5g^ OF ASSIGNMENTS OF TERMS. ^ 
 
 and incumbrances, created intermediate between the 
 raising of the term and the purchase^"). And this doc- 
 trine, unqualified as it is, seems correct. For as the term 
 will prevail over a strict title to the inheritance, it will of 
 course be a protection against judgments, mortgages, and 
 all other incumbrances and estates less than a fee ; and it 
 may, in like manner, be used as a shield against an act(/c), 
 or commission(/) of bankruptcy. 
 
 In the late case of the King v. Smith(w?), however, the 
 Court of Exchequer held that a term of years, which had 
 been assigned to a trustee for the crown debtor(?2), would 
 not protect a purchaser against crown debts, although he 
 purchased bona fide and without notice(I). This point 
 (^)had previously been considered by most of the leading 
 characters in the Profession, some of whom have since 
 filled the highest judicial situations 5 and the general 
 opinion of the Profession appears to have been, that a 
 purchaser might protect himself against crown debts, by 
 a legal term of years created previously to the right of the 
 crown attaching on the estates, where he had not notice, 
 
 ( j) See 1 Term Rep. 768. 
 {k) Collett V. De Gols, For. 65. 
 
 (Z) Hithcox?). Sedgwick, 2 Vern. 156, reversed '\x\ Dom. Proc. See 
 post. c. 17, this point considered. 
 
 (m) Excheq. 2d March, 1804, MS. Appendix, No. 17. 
 (n) See 13 Price, 656. 
 
 (I) It has been determined that in the case of a purchase for a vaki- 
 able consideration, without notice and without fraud or covin, from a 
 simple contract debtor of the Uing, the lands are not bound by such 
 simple contract debt. The King v. Smith, 1 Wight 34. In that case, 
 the general words in the statute of 13 Elizabeth, c. 4, received a limited 
 and proper construction. In Wild v. Fort, 4 Taunt. 334, in which it 
 was not necessary to decide the point, the rule was laid down with 
 apparently too much latitude, that every person who has received 
 money belonging to the crown, every accountant of the crown for 
 money of the crown received, falls within the act. See Casberd v. 
 Ward, 6 Price, 411. 
 
 (*512)
 
 OF ASSIGNMENTS OF TERMS. 
 
 585 
 
 express or implied, of the debt due to the crown, or of the 
 vendor being an accountant to the crown. They relied 
 on the analogy between this case and the genera] rule 
 respecting judgments and recognizances, against which 
 a purchaser may protect himself by an outstanding legal 
 estate, unless he had notice of them previously to com- 
 pleting his purchase. The late Lord Kenyon, in an opi- 
 nion on this point, treated the right of the crown as not 
 superior to that of a subject. Indeed, the point may 
 fairly be said to have received what was tantamount to a 
 judicial decision, previously to the determination of the 
 Court of Exchequer. When Mansfield, Chief Justice of 
 the Common Pleas, was Solicitor-general, he gave an 
 opinion in favor of the right of the crown to extend 
 lands in the hands of a mortgagee, although the legal 
 estate had never vested in the mortgagor, but had been 
 conveyed to the mortgagee by the trustees in whom it had 
 been vested in trust for the mortgagor. The question 
 underwent great consideration, and it was discovered that 
 there was an old term of years, to the benefit of which 
 the mortgagee was clearly entitled in preference to any 
 (*)other person, although it was not actually assigned to a 
 trustee for him. The case was again laid before the 
 Solicitor-general, who then wrote an opinion that the title 
 of the mortgagee would be preferred to that of the crown. 
 He stated, that upon a short inquiry before he wrote his 
 former opinion, it had been represented to him, that 
 estates held in trust for a debtor of the crown were usu- 
 ally seized under extents, and \^'ere considered as bound 
 by his debts in the same manner as those of which he 
 was legally seized. He had since desired a further 
 search to be made, and was then informed that no instan- 
 ces were to be found in which a trust-estate of such debt- 
 or fairly parted with to a purchaser without notice had 
 been deemed to be liable to the debts of the crown, and 
 
 VOL. 1. 74 (*513)
 
 ggg OF ASSIGNMENTS OF TERMS. 
 
 in consequence of this information his opinion then in- 
 clined in favor of the mortgagee. And he gave a similar 
 opinion on this point in the year 1801, so that he had not 
 seen any reason to alter his opinion after a lapse of nearly 
 twenty years. 
 
 The principal grounds of the determination in the King 
 V. Smith vv^ere three : — 1st, that the lands of a debtor to 
 the crown might be extended into whatever hands they 
 might have been aliened, subsequently to their becoming 
 liable to the crown ; 2dly, that the estates of which the 
 debtor was cestui que trust might be extended ; and 3dly, 
 the decision in the case of the Attorney-general v. Sands(o). 
 The two first positions of the Court may be admitted to 
 be law, without, as it should seem, at the same time ad- 
 mitting that a purchaser cannot protect himself against 
 the crown by an outstanding legal estate. Indeed it was 
 the third ground upon which the Court principally relied, 
 and built their decree. 
 
 The determination in the case of the Attorney-general 
 (*)v. Sands was, that the trust of a term attendant on the 
 inheritance was not forfeited by the felony of the cestui 
 que trust, because it was no more than an accessary to the 
 inheritance, which was not forfeited. In the King v. 
 Smith, the Court of Exchequer thought that the converse 
 of this case must be taken to be true. The term was not 
 forfeited, because the inheritance was not forfeited ; but 
 if the inheritance had been forfeited, the term must have 
 been forfeited. The case of the Attorney-general v. 
 Sands was decided in a court of equity, and appears 
 wholly to depend upon the rules of equity as to attendant 
 terms ; and on the like principle, it may be thought that 
 the same Judges would have denied relief against a pur- 
 chaser in a case similar to that of the King v. Smith ; 
 and that no such relief could at this day be granted. If 
 
 (o) Hard. 2 Freem. 3 Cha. Rep. 
 
 (*514)
 
 OF ASSIGNMENTS OF TERMS. 
 
 587 
 
 any remedy, therefore, lies against the purchaser, it must 
 be at law. Now at law the term in the trustee is a term 
 in gross. A legal title, prior to the right of the crown, 
 must prevail at law ; and the Court ought not to advert 
 to the trust, only for the purpose of taking the protection 
 of the term from the bona fide object of the trust, for 
 even the arts of the law in introducing collateral warran- 
 ties, discontinuances, and non-claims to protect the j^os- 
 session and strengthen the rights of purchasers, have been 
 the subject of commendation from the great Lord Not- 
 tingham ; and it is admitted that if the term be in gross, 
 an assignment before any actual extent will stand good 
 against the king's debt(/?). Lord Hardwicke's decision 
 in Willoughby v. Willoughby is an elaborate perfor- 
 mance, and was certainly pronounced after great con- 
 sideration. Every point was adverted to, and yet his 
 Lordship lays the rule down generally, that a purchaser 
 may protect himself against all mesne incumbrances by a 
 (*) prior legal term, and does not except the case of the 
 crown. And in pronouncing judgment in the Attorney- 
 general V. Sands, the Chief Baron observed, that the term 
 was only kept on foot to avoid incumbrances which might 
 affect the inheritance ; and yet, although he was dis- 
 cussing the rights of the crown, he did not seem to con- 
 sider that the term would not prevail over crown debts. 
 It is not denied, that in general where a term is attendant 
 on the inheritance, if the king extends the inheritance he 
 shall have a right to the term(9') ; but the question here 
 turns upon what, it is conceived, ought to form an excep- 
 tion to that rule, viz. a purchase by the person claiming 
 the benefit of the term bona fide, and without notice of 
 
 the claim of the crown. 
 
 It remains only to observe, that in this commercial 
 
 (p) 2 Vern. 390. 
 
 (q) See the 2d icsolution in Nicholls v. How, 2 V^crn. 389. 
 
 (*515)
 
 coo OF ASSIGNMENTS OF TERMS. 
 
 country, any decision which tends to clog the free aliena- 
 tion of property, and to render the titles of fair purchasers 
 insecure, cannot but be productive of the most serious 
 consequences, and well demands the interference of the 
 legislature, if the law is too well settled to be over-ruled. 
 
 In a still later case(r), in which the case of King v. 
 Smith appears to have been forgotten, where a man having 
 agreed before marriage to purchase and settle estates, 
 entered into bonds to the crown, and then made a pur- 
 chase, and afterwards settled the estate according to the 
 articles, it was held that a mortgage term assigned to at- 
 tend upon the purchase did not protect the inheritance 
 against the crown debt, because the settlement was volun- 
 tary. There was no covenant in the articles which spe- 
 cifically bound the lands. The assignment of the term 
 therefore could not, it was held, defeat the right of the 
 crown. 
 
 (*)But where the term has never been assigned to attend 
 for the crown debtor, it will not be affected by the claim 
 of the crown in the hands of a trustee for a bonajide pur- 
 chaser. Therefore, where upon a purchase a term of 1,000 
 years was limited to the seller to secure a portion of the 
 purchase-money and subject to the term, the fee was 
 limited to the purchaser ; the mortgage wns not paid off 
 by the purchaser, but he sold the property, and the 
 second purchaser paid off the mortgage, and took an as- 
 signment of the term to a trustee for himself to attend 
 the inheritance : it was held that the term was not bound 
 by the crown debt of the first purchaser(5). 
 
 Mr. Butler justly observes, that " a term should never be 
 relied on, unless proof can be obtained easily, and at a 
 small expense, of the instruments and acts in law, which 
 
 (r) Rex V. St. John, 2 Price, 317. See Rexv. HoUier, 2 Price, 394. 
 
 (*) Re.\ V. Lamb, 13 Price, 6-i9 ; M'CIel. 402, S. C. 
 
 (*ol6) 
 
 I 
 
 i
 
 OF ASSIGNMENTS OF TERMS. 
 
 589 
 
 must be proved to establish the creation and deduction of 
 the term. It should also be ascertained, that its situation 
 is such as enables the party entitled to it, to avail himself 
 of it in ejectment(^)." And to enable the purchaser to 
 avail himself of the term, it is indispensably necessary that 
 he should not have notice, either express or implied, of the 
 incumbrance or title against which he is desirous of using 
 the term as a protection. Mr. Powell, indeed, although 
 he admits that terms, the purposes of whose creation are 
 answered, and which have been expressly assigned to at- 
 tend the inheritance, will not be any protection to a pur- 
 chaser of the inheritance who had notice of any judgments, 
 &,c. yet contends, that where a purchaser of the inheritance 
 obtains a term in gross, the purposes of whose creation 
 were not answered at the time of the purchase(I), or a 
 (*)term the purposes of whose creation were answered, 
 but which had not been expressly assigned to attend the 
 inheritance, but merely waited upon the freehold by con- 
 struction of equity, such purchaser can defend his posses- 
 sion by the term, although he had notice of any intervening 
 judgment. 
 
 This is an attempt to establish a new distinction between 
 a term assigned upon an express trust to attend the inherit- 
 ance, and a term attendant by the construction of equity, 
 an attempt which Lord Hardwicke appears to have over- 
 ruled in the case of Willoughby v. Willoughby ; and it 
 would be very imprudent for a purchaser of an estate in 
 any case to rely on a term of years, as a protection against 
 
 {t) N. (1), s. 13, to Co. Litt. 290 b. 
 
 (I) In this case the purchaser could of course defend himself atrainst 
 any subsequent incumbrancer to the extent of the subsisting charge on 
 the term at the time of the purchase. It has, indeed, been thought that 
 if there are two mortgagees, and the first in point of charge buy the 
 inheritance, he lets in the other on the estate discharged of the prior 
 mortgage. See, however, Kennedy v. Daly, 1 Scho. & Lef. 356. 
 
 (*517)
 
 590 
 
 OF ASSIGNxMENTS OF TERMS. 
 
 any incumbrance, of which he has express or implied 
 notice. 
 
 It is, however, settled by a series of authorities(w), 
 (*)that a purchaser may protect himself against the dower 
 of the vendor's wife, by a term created previously to her 
 right of dower attaching on the estate, although he had 
 actual notice of the marriage, and of her title to dower ; 
 a protection, as we shall hereafter see(.T), to which a pur- 
 chaser with notice is not entitled in any other instance, or 
 against any other person(I). 
 
 The term, however, must be actually assigned to a 
 trustee for the purchaser, if it is intended to be used as a 
 bar to the wife's dower(i/)(247) ; because, by the rules of 
 
 (it) Lady Radnor or Bodmin v. Rotherham or Vendebendy, Prec. 
 Cha. 65 ; 1 Vern. 170. 356 ; 2 Cha. Ca. 172 ; Show. P. C. 69 ; Brown 
 r. Gibbs, Wray V. Williams, Dudley r. Dudley, Prec. Cha. 97. 161. 
 241 ; and see Banks v. Sutton, 2 P. Wms. 700 (I) ; Hill v. Adams, or 
 Swannock v. Lyford, 2 Atk. 208 ; Ambl. 6 ; Butler's n. (1) to Co. Litt. 
 208 a ; Wynn v. Williams, 5 Ves. . jun. 130 ; D'Arcy v. Blake, 2 Scho. 
 & Lef. 387 ; and see siqn'a, p. 358. 
 
 (x) Infra, ch. 16. 
 
 (y) See Maundrell v. Maundrell, 7 Ves. jun. 567 ; 10 Ves. jun. 246, 
 particularly the close of the judgment. 
 
 (I) Note, this case is genarally thought to be over-ruled, but Mr. 
 Powell has endeavored to show, that it is not affected by later deci- 
 sions. See 2 Mort. 731, 4th edit. ; and in a manuscript note of the 
 Attorney-general r. Scott, penes auclorem (For. 138,) Lord Talbot is 
 reported to have said, that the reason of the decree in Banks v. Sutton 
 was different, for there the direction of the will was, that the legal 
 estate should be con veyed to Sutton, and the wife married him on the 
 expectation of that estate, and it was a fraud in the husband not to 
 call for the settlement. See a fuller note of this case than that which 
 is published. Appendix, No. 18. In the late case of D'Arcy v. Blake, 
 2 Scho. & Lef. 387, it was said by the Court, that what was thrown out 
 by Sir Joseph Jekyll, in Banks v. Sutton, had been long over-ruled. 
 
 (I) All these observations upon dower apply to cases not within the 
 late act, for as to cases within the act, the husband alone can defeat 
 the wife's right of dower. Vide supra, ch. 7. 
 
 (247) See Millcdge v. Lamar, 4 Des. 617. 
 (*618)
 
 OP ASSIGNMENTS OF TERMS. 
 
 591 
 
 equity, every term attendant on the inheritance follows it 
 in its various modifications, and in the charges and in- 
 cumbrances which attach on it, or are created in it(2:) ; and 
 therefore, upon the marriage of a man seised of lands of 
 inheritance, in which there is a term outstanding, a right 
 of dower attaches on the inheritance, by the act of law, and 
 in equity the term is equally bound with the inheritance ; 
 and as the claim of a purchaser is not more favored in 
 equity than that of a dowress, a purchaser will not be 
 entitled to the benefit of an outstanding term, to the pre- 
 judice and in exclusion of a dowress. Indeed the deci- 
 sion (a), that a purchaser could defend himself against a 
 claim of dower by a term assigned to a trustee for him, 
 proceeded not on principle, but on the universal practice 
 and opinion of conveyancers in that respect ; for(6) the 
 Court of Chancery and House of Lords were of opinion, 
 that if they were not to permit that to be so, it would be to 
 (*)overturn the general rule which had been established 
 and practised by many titles to estates, and tend to make 
 such titles precarious for the future. The same reason 
 does not apply where the purchaser neglects to take an 
 assignment of the term ; it having always been the gene- 
 ral understanding and opinion of conveyancers, that to 
 protect against dower, ihe term must be actually assigned 
 to a trustee for the purchaser. 
 
 In Swannock v. Lifford(c), Lord Hardwicke appears to 
 Jiave considered it clear, and it was admitted at the bar, 
 that if a man before marriage conveys his estate privately, 
 without the knowledge of his wife, to trustees, in trust for 
 
 (2) See Charlton v. Low, 2 P. Wms. 328. 
 
 (a) Lady Radnor v. Vendebendy, Show. P. C. 69. 
 
 (b) Per Lord Hardwicke. See Butler's n. w6t sup. 
 
 (c) Butler's n.(l) to Co. Litt. 208 a; and see 2 P. Wms. 709. 
 Note, in the case of Bottomley v. Lord Fairfax, Prec. Cha. 336, 
 the Court did not advert to a conveyance made immediately before mar- 
 riage. 
 
 (*519)
 
 592 ^^ ASSIGNMENTS OF TERMS. 
 
 himself and his heirs in fee, that will prevent dower; and 
 it appears that this was practised by a reverend Judge of 
 equity, Mr. Serjeant Majnard, who made a lease to his 
 servant the day before his last marriage(6^). But the coun- 
 sel who argued for the respondent in Radnor v. Vende- 
 bendy, before the House of Lords, seems to have admitted, 
 that if a husband, just before marriage, make a long lease 
 on purpose to prevent dower, and the woman expecting 
 the privileges which the common law gives to loomen 7nar- 
 ried, survive him, equity may interpose ; and this doc- 
 trine has been distinctly recognised by a learned Judge 
 and author(e). And as this opinion may be supported 
 by weighty reasons, a purchaser cannot, it is conceived, 
 be advised to rely upon a legal estate, created in fraud of 
 the rights of marriage, as a protection against the wife's 
 dower(/) (248). 
 
 It hath been just observed, that by the rules of equity 
 (*)every term attendant on the inheritance follows it in 
 its various modifications, and in the charges and incum- 
 brances which attach on it, or are created in it. Now it 
 is a consequence of this rule, that whenever the inheri- 
 tance is conveyed or charged, the trustee of the term 
 becomes a trustee for the person in whose favor the 
 estate is conveyed or charged, to the extent of his claims 
 on the estate. If the trustee have notice of such pur- 
 chase or incumbrance, his conscience will be affected ; 
 and if he assign the term to a subsequent purchaser, or 
 
 {d) See Show. P. C. 71. 
 
 (e) Gilb. Lex Praetor. 267. 
 
 (/) As to settlements by women previously to marriage, in deroga- 
 tion of the marital rights, see Countess of Strathmore v. Bowes, 2 Bro. 
 C. C. 345, 1 Ves. jun. 22. and the cases there cited, which may be 
 thought, in some measure, to apply to the point under consideration. 
 
 (248) As to marital rights, See Ward v. Wilson, 1 Des. 401. 
 Garner v. Garner^s Exrs. 1 Des. 437. Taylor v. Heriot, 4 Des. 227. 
 (*520)
 
 OF ASSIGNjMENTS OF TERMS. 
 
 693 
 
 incumbrancer, it would be a breach of trust, and he would 
 in equity be decreed to make satisfaction (o-). A trustee, 
 therefore, of a term to attend the inheritance, cannot be 
 advised to assign the term Mo «»?/ purchaser or incum- 
 brancer, unless he is satisfied that his immediate cestui 
 que use has not done any prior act to charge the inheri- 
 tance(/i). 
 
 As a trustee ought to be satisfied, that the person by 
 whose direction the term is assigned, is the person en- 
 titled to require the assignment, it is usual, by way of 
 authority to the trustee, to recite all the instruments, &c. 
 affecting the fee, from the time the term was created to 
 the date of the deed of assignment ; and this is very com- 
 monly done, even where the term has been assigned to 
 attend the inheritance. In the latter case, however, such 
 a recital is both unnecessary and improper ; for the trustee 
 can only be affected by the acts of his own cestui que 
 trust; and therefore, where a term has been actually 
 assigned to attend the inheritance, on a future assign- 
 ment of it, it is only necessary to recite the deed creating 
 (*)the term, that by divers conveyances and assurances 
 the fee became vested in A. (the person requiring the as- 
 signment) ; and that by divers assignments and acts in law, 
 and ultimately by such a deed (the assignment to attend), 
 the term became vested in the trustee, in trust for A. ; and 
 then any instruments affecting the fee, since the last as- 
 signment of the term, to attend the inheritance, should 
 be recited. 
 
 VI. Before we quit this very interesting subject, let us 
 inquire in what cases a term of years will attend the 
 
 {g) 1 Term Rep. 771. 
 
 {h) See 1 Pow. Mort. 607, 508, 4th edit. ; Evano v. Eickneil, 6 
 Ves. jun. 174. Ex parte Knolt, 11 Ves. jun. 609. 
 
 VOL. 1. 75 (*521)
 
 594 
 
 OF ASSIGNMENTS OF TERMS. 
 
 inheritance, without an express declaration of trust for 
 that purpose (*). 
 
 First, then, it is a general rule, that whenever a term 
 would merge in the inheritance if united, it shall attend, 
 if in a different person, without an express declaration, by 
 implication of law founded on the statute of frauds(A:). 
 And the custom of Loudon shall not prevail over this 
 operation of law(/). 
 
 Therefore, where a person purchases the inheritance in 
 his own name, and takes an assignment of a term in the 
 name of a trustee(?«) ; or takes a conveyance of the fee in 
 the name of a trustee, and an assignment of a term in his 
 own name(ii) ; in both these cases the term attends the 
 inheritance, unless there be an express declaration to the 
 (*)contrary, whether the term be purchased or obtained 
 before or after the purchase of the fee. And in general 
 there is no difference between an assignment of a term to 
 a trustee, in trust to attend the inheritance, and an assign- 
 ment to a trustee, in trust for the purchaser, his executors, 
 administrators and assigns(o). 
 
 (i) See an admirable opinion of Mr. Fearne's respecting terms of 
 years, 2 Coll. Jur. 297. Mr. Powell has in the last edition of his Trea- 
 tise on Mortgages inserted this opinion without acknowledgment. See 
 1 Mort. 483—489. 
 
 {k) See ] Bro. C. C. 70. 
 
 (I) Greene v. Lambert, 1 Vern. 2, cited ; Dowse v. Derivall, ibid. 
 104 ; 2 Vern. 67 ; Reg. Lib. A. 1683, fol. 283. It is said in the de- 
 cree, that the lease and conveyance were in law one conveyance ; Rich 
 V. Rich, 2 Cha. Ca. 160. 
 
 ()u) Tiffin V. Tiffin, 1 Vern. 1 ; 2 Cha. Ca. 49. 55 ; Whitchurch r. 
 Whitchurch, 2 P. Wms. 236 ; 9 Mod. 124 ; Gilb. Eq. Rep. 168 ; Good- 
 right V. Sales, 2 Wils. 829. 
 
 (w) North V. Langton, 2 Cha. Ca. 156; Dowse v. Derivall, 1 Vern. 
 104 ; Attorney-general v. Sands, 3 Cha. Rep. 19. 
 
 (o) Best V. Stamford, Prec. Cha. 252 ; Tiffin v. Tiffin, 1 Vern. 1 ; 
 Holt V. Holt, 1 P. Wms. 374, cited ; Pitt v. Cholmondley, Chancery, 
 9 Nov. 1751, MS. 
 
 (*522)
 
 OF ASSIGNMENTS OF TERMS. 595 
 
 So the same rule prevails where a man possessed of a 
 term for years contracts for the inheritance, for the vendor 
 stands seized in trust for the purchaser from the time of 
 the contract(p). 
 
 And where, by reason of an intermediate term out- 
 standing, a term cannot merge, although vested in the 
 purchaser together with the fee, yet if the purchaser be 
 entitled to such outstanding term, even the term vested in 
 the purchaser, and which cannot merge, shall attend the 
 inheritance, without any express declaration for that pur- 
 pose(9). 
 
 And even if the purchaser cannot obtain an assignment 
 of the whole term, yet, if a nominal reversion only, as a 
 reversion of a few days, be left outstanding, so much of 
 the term as is assigned to a trustee for the purchaser will 
 be deerned attendant on the inheritance, without any 
 express declaration for that purpose. But where the term 
 is subject to rents or charges in favor of other persons, 
 whereby the purchaser has not substantially the whole 
 beneficial interest in the estate, there an express declara- 
 tion is necessary to make the term attendant. The mere 
 intent of the purchaser to purchase the whole interest, 
 (*)and that the term should attend the inheritance, will not 
 vary the case. 
 
 The tw^o last propositions appear to be established by 
 the case of Scot v. Fenhoullet(r). From the imperfect 
 statement of the facts in this case, it is difficult to under- 
 stand the ground of Lord Thurlow's decision ; and it has 
 been generally thought that the decree turned on the 
 
 ip) Capel V. Giidler, Rolls, 16th March 1804, MS. ; 9 Ves. jun. 
 609 ; Cooke v. Cooke, 2 Atk. 67. Vide supra, ch. 4. 
 
 iq) Whitchurch v. Whitchurch, 2 P. Wms. 236 ; 9 Mod. 124 ; Gilb. 
 Eq. Rep. 168; and see 1 Bro. C C 170. 
 
 (r) 1 Bro. C. C. 6. 9. 
 
 (^523)
 
 596 
 
 OF ASSIGNMENTS OF TERMS. 
 
 reversion, which the purchaser could not get in(5). The 
 facts, as stated in Lord Thurlow's judgment, on the re- 
 hearing, reported in Brown, are shortly these : Mrs. 
 Rudger was seised in fee of the estate, subject to two 
 terms of years, upon which it should seem small rents 
 were reserved ; which terms ^a ere vested in trustees in 
 trust for Mrs. Rudger for life, and for raising certain 
 annual and gross sums of money. Sir Andrew Chadvvick 
 purchased of Mrs. Rudger the fee-simple estate, and so 
 much of the terms as related to it ; and the trustees exe- 
 cuted their power by granting a derivative lease to 
 trustees for Sir Andrew, with a nominal reversion (eleven 
 days) to themselves. Lord Thurlow admitted, that Sir 
 Andrew meant to purchase the Avhole interest, and that 
 his intent was, that the terms should attend the inherit- 
 ance. If they did attend the inheritance in this case, it 
 must, he said, be by iqiplication of law, as there was no 
 express declaration ; and, after showing that the case of 
 Whitchurch v. Whitchurch(^) did not apply to the case 
 before him, because that there no interest was outstand- 
 ing, except in form, he added, " Sir Andrew Chadwick 
 might have given these terms to a stranger, and if the 
 inheritance descended, the heir at law might demand the 
 rents reserved by the leases. It is said to be extremely 
 plain, that Sir Andrew Chadwick meant to consolidate 
 (*)the interests : this is begging the question. It is true 
 he meant to take the largest interest he could, but by no 
 means apparent that he meant to consolidate the interests. 
 / lay no stress on the days of the reversion, for it was 
 meant only as a nominal reversion ; they did not mean to 
 reserve a substantial interest. It would be necessary there 
 should be an express trust to make this attendant on the 
 
 (s) See Capel v. Girdler, MS. and 9 Yes. jiin. 509; 1 Cruise's Dig. 
 513, s. 17, and the marginal abstract of the case in Brown. 
 {t) Supra. 
 (*624)
 
 OF ASSIGNMENTS OF TERMS. 
 
 597 
 
 inheritance ; the transaction does not supply a necessary 
 construction of law. It is a very nice point, and a very 
 new one ; whether the intent to purchase the whole in- 
 terest is sufficient to make the term attendant on the 
 inheritance. The impossibility he was under of purchasing 
 the whole, rendered an express declaration necessary to 
 make it attend the inheritance.^'' Now, at first sight, it 
 certainly does seem impossible to reconcile those parts of 
 the judgment which are printed in italics. But it appears 
 by an opinion of Mr. Fearne's(M), in consequence of 
 which the cause was reheard, that rents were reserved by 
 the leases granted by the trustees to Sir Andrew Chad- 
 wick, and the usual covenants were entered into by him, 
 and the trustees were restrained to that mode of making 
 a title by their trust, which required a reservation of rent, 
 and the usual covenants. 
 
 This fact at once reconciles every part of the judgment. 
 Lord Thurlow was of opinion, that the reversion of itself 
 was immaterial, but that the rents reserved by the leases 
 rendered an express declaration necessary to make the 
 terms attend the inheritance. And Mr. Fearne was also 
 of opinion, that the terms would not be attendant, if there 
 was any intervening benejicial interest in any third person, 
 to divide the ownership of the term from the inheritance. 
 But as he was told that the rents reserved to the trustees 
 upon the terms were afterwards purchased by Sir Andrew, 
 (*)he thought the terms did attend the inheritance, al- 
 though there was not any express declaration for that pur- 
 pose ; and he expressly delivered his opinion, subject to 
 this fact, which he had learned from verbal information 
 only. By Lord Thurlow's decree on the rehearing, it ap- 
 pears clearly that the rents were not purchased, and con- 
 quently Mr. Fearne was misinformed in this respect. 
 
 Mr. Fearne's opinion on this point is very strongly 
 
 (u) 2 Collect. Jurid. 297. No. 6. 
 
 (*525)
 
 598 ^^ ASSIGNMENTS OF TERMS. 
 
 marked ; for he thought, that if there was any intervenhig 
 outstanding interest between the ownership of the term 
 and the inheritance, even an express declaration of trust 
 could not make the terms attendant. This, however, was 
 going too far ; and Lord Thurlow, who had probably seen 
 this opinion, addressing himself to the cases in which 
 a term would attend the inheritance, said, that might be 
 by two ways : first, by express declaration ; and then, 
 whether the term would or would not merge, and whether 
 the reversion be real or only nominal, it must be attendant 
 on the inheritance. 
 
 We have seen that where a term attends the inheri- 
 tance without any express declaration, it is by implication 
 of law ; and this implication, like all implications of law, 
 or equitable presumptions, may be rebutted by even a 
 parol declaration of the person in whose favor the im- 
 plication or presumption is made(a:). 
 
 VII. A term for years attendant on the inheritance, 
 whether by express declaration or by implication, is 
 governed by the same rules as the inheritance itself is 
 subject to. Therefore it will not be forfeited by the felony 
 of the owner of the inheritance(?/) ; but if the inheritance 
 escheat, the term will go with 'it(z). 
 
 (*)So it seems, that such a term cannot pass by a will 
 not executed according to the statute of frauds(«). But 
 it appears to have been thought, and the distinction, it is 
 conceived, may be supported on solid grounds, that where 
 a term attends the inheritance merely by operation of law, 
 
 {x) See j^osf. ch. 15. 
 
 (?/) Attorney-general v. Sands, 3 Cha. Rep. 19 ; Hard. 488. 
 
 (r) Thruxton v. Attorney-general, 1 Vern. 340, 357. 
 
 (a) Tiffin v. Tiffin, 2 Cha. Ca. p. 49, 55 ; 2 Freem. 66 ; Whit- 
 church u. Whitchurch, Gilb. Eq. Rep. 168; Villiers v. Villiers, 2 Atk. 
 71. J\'oic, Nourse v. Yarworth, Finch, 155, was before the statute of 
 frauds. 
 
 t*526)
 
 OF ASSIGNMENTS OF TERMS. 
 
 599 
 
 the owner may expressly bequeath it by a will not ex- 
 ecuted with the solemnities required by the statute (6). 
 
 It is clear, that where the devisor intended the inheri- 
 tance to pass, but, by reason of the informality of the will, 
 it descends to the heir, the term shall not go to the de- 
 visee, but shall follow the inheritance in its devolution 
 on the heir(c). 
 
 So where a termor for years, having contracted for the 
 fee, made his will, whereby, after reciting that he had 
 purchased the term, and contracted for the fee, a convey- 
 ance of which could not then be obtained, he declared, 
 that when a conveyance could be had, the estate should 
 be settled to the uses mentioned in his will, and directed 
 that the remainder of the term should remain and be 
 attendant on the inheritance. The person who contracted 
 to sell the fee was not owner of it, and the owner sold it 
 to another person. Sir Joseph Jekyll held, that the tes- 
 tator intended to pass the inheritance ; and although he 
 had it not, yet the term could not pass by the will, as 
 such a construction would be contrary to the testator's 
 intention(6?). 
 
 (*)As the inheritance of an estate is not liable to simple 
 contract debts, it follows, on the principle before noticed, 
 that a term attendant on the inheritance is not personal 
 assets for the payment of debts(e), but it is generally 
 stated that such a term is real assets : — This is, however, 
 
 (6) See 9 Mod. 127 ; and see 2 Collect. Jurid. 276. 
 
 (c) Cases cited ante, n. (a). 
 
 {d) Bret v. Savvbiidge, 3 Bro. P. C. 141, Tom. ed. ; and see 
 Fearne's Ex. Dev. by Powell, 145, n. (a). S. C. Appendix, No. 19. 
 This note of the case will, I hope, be acceptable to the reader. It con- 
 tains a concise statement of the facts, and sir Joseph Jekyll's judgment, 
 which is, 1 believe, not in print, and comprises some interesting remarks 
 on executory bequests of terms. 
 
 (e) Thruxton v. Attorney-general, 1 Vern. 340 ; Tiffin v. Tiffin, I 
 Vern. 1. 
 
 (*527)
 
 600 
 
 OF ASSIGNMENTS OF TERMS. 
 
 a very incorrect expression : the term itself is not real 
 assets, but is merely attendant on the inheritance, which 
 is. In Chapman v. Bond(X), it appears to have been 
 thought, that although the term was in a trustee, yet if it 
 attended the inheritance by construction of equity only, 
 it should be assets in equity for payment of the owner's 
 debts, in like manner as a term taken in his own name 
 would be assets at law. But this opinion is clearly over- 
 ruled ; and where a term is in a trustee, the same rules 
 prevail on this point, whether the term be attendant by 
 express declaration or not(^). In one case it is made a 
 query, whether if tenant in tail contract debts by bond 
 and die, and it can be made to appear that some of his 
 ancestors, who bought the estate, found an old mortgage 
 upon it for a long term of years, which was kept on foot 
 to wait upon the freehold and inheritance, such lease in 
 equity would not be assets in the hands of the heir in tail, 
 for it is equity only makes such leases descend, and it is 
 the highest equity, that a man's debts should be paid(A). J 
 There is not, however, the least foundation for this doubt. ^ 
 Equity, in this respect, follows the law, and at law the \ 
 estate is not bound. 
 
 But where the inheritance is in trustees, and the owner 
 has a term in his own name, and dies indebted, the term, 
 although limited to attend the inheritance, will be liable 
 (*)to debts, for it is assets at lavv(i) ; and equity here fol- 
 lows the law(/c), and therefore a purchaser should never 
 
 (/) 1 Vern. 188. ^ 
 
 (g-) Baden v. Earl of Pembroke, 2 Vern. 62, 213 ; 2 Trea. Eq. c. ^ 
 
 4, s. 6. i 
 
 {h) Anon. 11 Mod. p. 6. 1 
 
 (i) Thruxton v. Attorney-general, uhi sup. ; Chapntian v. Bond, 1 
 
 Vern. 188 ; Attorney-general v. Sands, Hard. 488. 
 
 {k) See 2 Cha. Ca. 49 ; Earl of Pembroke's case, 9 Mod. 126, 
 
 cited. 
 (*628)
 
 OF ATTESTED COPIES. gQ| 
 
 take the term in his own name, if he do not wish his 
 estate to be personal assets. 
 
 If" after the death of a person who has taken an assign- 
 ment of a term in his own name, and a convej'ance of the 
 inheritance in the name of a trustee, his personal repre- 
 sentative assign the term to attend the inheritance, it will 
 cease to be assets at law ; and the creditors or legatees 
 will be entitled to satisfaction against the personal repre- 
 sentative, as for a devastavit; and may, it should seem, 
 even follow the term in equity, unless as against a bona 
 jide purchaser without notice, against whom the term will 
 not be severed or disannexed from the inheritance in 
 favor of the creditors or legatees, although the purchaser 
 did not take an assignment of the term, or was even not 
 aware of its existence(/)(249). 
 
 But these distinctions will, as to persons who have 
 died since the 29th August 1833, or who shall hereafter 
 die seised of freehold, customaryhold or copyhold estates, 
 in a great measure cease to exist ; for the 3 &: 4 W. 4, 
 c. 104, has made all such estates assets for the payment 
 of even simple contract debts. 
 
 (*)SECTION III, 
 Of Attested Copies. 
 
 Thus have we taken a cursory view of the doctrine 
 respecting terms of years, a learning which demands the 
 practical conveyancer's peculiar attention ; and we are 
 
 (/) Charlton v. Low, 3 P. Wms. 32. 
 
 (249) See The People v. Pleas, and Clarh, 2 Johns. Cas. 376. 
 VOL. I. 76 (*529)
 
 QQ2 OF ATTESTED COPIES. 
 
 now to consider in what cases a purchaser is entitled to 
 attested copies of the title-deeds. 
 
 If a purchaser cannot obtain the title-deeds, he is, as 
 we have already seen, entitled to attested copies of them 
 at the expense of the vendor, unless there be an express 
 stipulation to the contrarj(??i) ; and although he may not 
 be entitled to the possession of the deeds, yet he has a 
 right to inspect them, and the vendor must produce them 
 for that purpose(?2). 
 
 But a purchaser is not entitled to attested copies of 
 instruments on record. 
 
 This was decided in the case of Campbell v. Camp- 
 bell(o), where the Master, in taxing costs incurred by 
 the sale of considerable estates, disallowed the charges 
 for attested copies of deeds and documents upon record ; 
 and upon exceptions to his report on that account com- 
 ing on, the Master of the Rolls over-ruled them, and 
 held that a purchaser was not entitled to such copies at 
 the expense of the vendor. 
 
 In some cases, however, a purchaser can obtain attested 
 copies even of instruments on record. For a purchaser 
 is entitled to examine the abstract with the original title- 
 deeds, or with attested copies of them ; and, therefore, 
 if a vendor has not the instrument itself, and cannot 
 (*)obtain it, he is bound to procure an attested copy of it, 
 to enable the purchaser to ascertain that the abstract is 
 correct ; and when it is obtained, the purchaser is of course 
 entitled to it on the completion of the purchase ; unless, 
 indeed, the vendor retains other estates holden under the 
 same title. 
 
 In a case before Lord Rosslyn, where there was an 
 
 (»») Dare v. Tucker, 6 Ves. juii. 460 ; Berry r. Young, 2 Esp. Ca. 
 640, n. 
 
 (n) Berry v. Young, ubi sup, 
 
 (o) Rolls sittings after Term, 1793, 3IS. 
 
 (*530) 
 
 i
 
 OF ATTESTED COPIES. 
 
 603 
 
 I 
 
 agreement that the vendor should produce the original 
 title-deeds, his Lordship construed it, not only as an en- 
 gagement to produce the title-deeds, but as a negative 
 stipulation, that he should not give attested copies. This 
 was certainly presuming a great deal. Lord Eldon has 
 since thought that the pressure of the stamp duties led 
 to that decision(p) ; and , it is probable, that a similar 
 case would now receive a different determination. 
 
 In a recent case, Lord Eldon compelled the vendor, at 
 his own expense, to furnish attested copies, the purchaser 
 having had no intimation that he could not have the deed. 
 For, his Lordship said, if he had notice that he was not 
 to have them', he would regulate his bidding accordingly ; 
 conceiving that he was to bear the expense of procuring 
 copies(9'). From this, it may be inferred, that notice that 
 the purchaser cannot have the deeds is tantamount to a 
 stipulation, that he shall not be furnished with attested 
 copies at the seller's expense. The general practice of 
 the profession, founded on the decided cases, is, that the 
 seller, in the absence of an express stipulation to the con- 
 trary, is bound, at his own expense, to furnish the pur- 
 chaser with attested copies: and Lord Eldon does not 
 appear to have intended to establish a new rule. 
 
 Where a purchaser cannot claim the title-deeds, it is of 
 great importance to him to obtain attested copies of them. 
 But attested copies are not of themselves sufficient secu- 
 rity (*)to a purchaser, — they are indeed mere waste pa- 
 per against strangers, and cannot be used upon an eject- 
 ment, unless, perhaps, as between the parties themselves. 
 Therefore, in order to enable a purchaser to effectually 
 manifest and defend his title and possession, he is also 
 entitled, at the expense of the vendor, to a covenant to 
 produce the deeds themselves, at the expense of the pur- 
 
 (;j) See 6 Ves. jun. 460. 
 
 iq) Boughton V. Jewell, 15 Ves. jun. 176. 
 
 (*531)
 
 604 
 
 OF ATTESTED COPIES. 
 
 chaser(r) ; which should, in most cases, be carried into 
 effect by a separate deed. And where a vendor retains 
 the deed by which the estate he is selling was conveyed 
 to him (which is mostly the case when it relates to other 
 estates), it seems advisable for the purchaser to require a 
 memorandum of his piu'chase to be indorsed on such deed. 
 And where the title-deeds cannot be delivered, assign- 
 ees must, like any other vendor, give attested copies of 
 them at the expense of the estate, but their covenant for 
 the production of the deeds should be confined to the 
 time of their continuance as assignees(5). If, however, 
 the covenant is so confined, the purchaser should have 
 some security that the person who shall ultimately be- 
 come entitled to the custody of the deeds will covenant 
 for their production. The proper course seems to be for 
 the assignees' covenant to be made determinable in case 
 they shall procure the person to whom they shall deliver 
 the deeds to enter into a similar covenant with the pur- 
 chaser. 
 
 It may here be remarked, that although a purchaser of 
 part of an estate has taken a covenant for the production 
 of the deeds, yet, if they afterwards come into his pos- 
 session by accident, no person can recover them from him 
 wMio has not a better right to them than he has(^). 
 
 And if a purchaser without fraud leave the title-deeds 
 (*)in the hands of the seller, yet he may recover them in 
 trover from the holder of them, although the latter may 
 have advanced money upon them to the seller, and he is 
 not bound to pay the money advanced(tt). 
 
 Supposing a purchaser to be entitled to the custody of 
 the deeds themselves, yet if any of them be lost, and the 
 
 (r) Berry i'. Young, 2 Esp. Ca. 640, n. 
 
 (s) Per Lord Eldon, Ex parte Stuart, 2 Rose, 216. 
 
 (/) Yea V. Field, 2 T. Rep. 708. 
 
 («) Harrington v. Price, 3 Barn. & Adoln. 170. 
 
 (*532)
 
 OF ATTESTED COPIES. 
 
 605 
 
 vendor can deliver over copies which would be admitted 
 as evidence at law, the purchaser will be compelled to 
 take the ik]e(tv). But where a deed essential to the title 
 is in the hands of a third person who is entitled to retain 
 it, and would be compelled to produce it to the purchaser, 
 the Court will not compel the purchaser to take the title 
 unless the deed is deposited for the benefit of all parties(a;). 
 The purchaser is not bound to rely upon the equitable 
 right to compel the production, but is entitled to the 
 deeds, or a valid covenant to produce them(y/). 
 
 It frequently happens, that a person having a covenant 
 for production of the title-deeds to his estate, sells only 
 part of the estate, and retains his purchase-deed, and the 
 covenant to produce the deeds ; and in such cases I should 
 conceive the practice to be for the vendor to enter into 
 the usual covenant for production of the title-deeds in his 
 possession, which of course would include the original 
 covenant to produce the deeds. But it seems that Mr. 
 Fearne thought(2:) that a purchaser was, in cases of this 
 nature, entitled to require the vendor to covenant for the 
 production of the deeds to such an extent as the covenant 
 in the vendor's possession entitled him to the production 
 (*)thereof, unless he could procure a new covenant for 
 that purpose from his grantors to the new purchaser ; but 
 that such covenant from the vendor should not be enforc- 
 ed, in case he produce the original covenant to produce 
 the deeds, when it should be required to defend the pur- 
 chaser's title. 
 
 [iv) Harvey v. Phillips, 2 Atk. 541. See an opinion of Mr. Booth's 
 2 Ca. and Opin. 223. As to the cases in which the execution of an 
 instrument will be presumed, see Skipwith v. Shirley, 11 Ves. jun. 64 ; 
 Ward V. Garnons, 17 Ves. jun. 134 ; and see Holmes v. Ailsbie, 1 
 Madd. 551. 
 
 (x) Shore v. Collett, Coop. 234. 
 
 (y) Barclay v. Raine, 1 Sim. & Stu. 449. 
 
 (s) Posth. 113. 
 
 (*633)
 
 QQ^ OF COVENANTS FOR TITLE. 
 
 It is not unusual to insert a proviso in a deed of cove- 
 nant, to produce title-deeds for determining the covenant, 
 in case the vendor sell the part of the estate retained by 
 him, and procure the person to whom the estate is sold, 
 and the title-deeds are delivered, to enter into a similar 
 covenant with the first purchaser, for production of the 
 title-deeds. 
 
 SECTION IV. 
 Of Covenants fo}' Title. 
 
 Let us now proceed to consider what covenants for 
 title a purchaser is entitled to. 
 
 The covenants usually entered into by a vendor seised 
 in fee, are, 1st, that he is seised in fee ; 2dly, that he has 
 power to convey ; 3dly, for quiet enjoyment by the pur- 
 chaser, his heirs and assigns ; 4thly, that the estate is 
 free from incumbrances ; and lastly, for further assur- 
 ance (a). 
 
 Where a vendor has only a power of appointment, the 
 first covenant ought to be, that the power was well 
 created, and is subsisting ; and the other covenants should 
 be similar to those entered into by a grantor seised in fee. 
 In small purchases the first covenant is sometimes omitted, 
 which may be safely done, for the first and second are 
 synonymous covenants. 
 
 (*)It sometimes happens, that a purchaser consents to 
 take a defective title, relying for his security on the ven- 
 dor's covenants. Mr. Butler remarks, that where this is 
 
 (a) See jyosl. ch. 13. 
 (*534)
 
 OF COVENANTS FOR TITLE. 
 
 607 
 
 the case, the agreement of the parties should be particu- 
 larly mentioned, as it has been argued, that as the defect 
 in question is known, it must be understood to have been 
 the agreement of the purchaser to take the title subject 
 to it, and that the covenants for the title should not ex- 
 tend to warrant it against this particular defect (6) (250). 
 
 (fc) See Butler's n. (1) to Co. Litt. 384 a. See also Savage v. 
 Whitbread, 3 Cha. Rep. 14. 
 
 (250) Every right to, or interest in the land granted, to the diminu- 
 tion of the value of the land, but consistent with the passing of the fee 
 of it by the conveyance, must be deemed in law an incumbrance. We 
 say consistent with the passing of the fee of the land by the convey- 
 ance, because if nothing passed by the deed, the grantee cannot hold 
 the estate under the grantor. Thus a right to an easement of any kind 
 in the land is an incumbrance. So is a mortgage. So also is a claim 
 of dower, which may partially defeat the plaintiff's title, by taking a free- 
 hold in one third out of it. And for the same reason a paramount right 
 which may wholly defeat the plaintiffs title is an incumbrance. It is a 
 weight on his land, which must lessen the value of it. Conformably to 
 these principles thus laid down by the Chief Justice, it was held in 
 Prescott V. Trueman, 4 Mass. 627, where the defendant covenanted 
 that the lauds sold in fee were free from all incumbrances ; and the 
 plaintiff" sued for covenant broken, that a paramount right was an incum- 
 brance. There, the defendant being seized of the lands in question, 
 which seisin he acquired by a conveyance from J. S., who was in by 
 disseisin. The breach alleged was that the heirs of the disseisee had, 
 at the time when the deed was executed, a paramount right to said lands. 
 If the plaintiff", the grantee, observed the Chief Justice, has not extin- 
 guished the paramount right, but it still remains against his title, he shall 
 recover nominal damages only. Neither shall the grantor, the defend- 
 ant, after having once paid the value of the land, be afterwards call- 
 ed on by the plaintiff" on a subsequent eviction. If the plaintiff" has 
 at a just and reasonable price, extinguished that title, so that it can ne- 
 ver afterwards prejudice the grantor, the jury, who may enquire of the 
 damages, will consider this price as the measure of damages. 
 
 Here, the covenant of seizin is not broken, for it is admitted that the 
 grantor was seized : neither is the covenant of a right to convey, bro- 
 ken, for a man seized has a right to convey : and on the warranty there 
 is no remedy, until after eviction. 
 
 The covenant that the grantor has good right to convey an indefeasi-
 
 608 
 
 OF COVENANTS FOR TITLE. 
 
 And it may be further observed, that in cases of this na- 
 ture, unless the objection to the title appear on the face 
 of the conveyance, the agreement to indemnify against 
 the defect, and the covenants to guard against it, should 
 be entered into by a separate instrument. 
 
 With respect to the persons against whose acts a ven- 
 dor is bound to covenant, it seems that, 
 
 1st. A vendor who actually purchased the estate him- 
 self, for money, or other valuable consideration, and ob- 
 tained proper covenants for the title, is not bound to 
 enter into covenants extending beyond his own acts(c). 
 This, Mr. Fearne remarks(f/), is a practice founded in 
 reason, where the vendee obtains the full benefit of all the 
 covenants in the conveyance to the vendor, to the same 
 extent as his vendor has them, by obtaining the possession 
 of the deeds containing those covenants. When the 
 vendor has parted with his means of claim or remedy 
 against his grantor for breach of his covenants, and trans- 
 ferred them to the purchaser, by delivery of the deeds, 
 and such vendee comes into the vendor's place, in that 
 respect, by the acquisition of such deeds, it would be 
 unreasonable that the vendor should make himself liable 
 (*)for any such breach. He, by departing with the means 
 
 (c) See 2 Bos. & Pull. 22 ; and see two oping, in 3 Pow. Convey. 
 206, 210. 
 
 (d) Posth. 110. 
 
 ble estate in fee, but nominal damages could be given, until the es- 
 tate conveyed had been defeated, or the right to defeat it had been ex- 
 tinguished. But this covenant is not usually in our deeds of convey- 
 ance. 
 
 The same principle was recognized in Funk v. Voneida, 11 S. & R. 
 109, where the court held the mortgage was a subsisting" mcumbrance 
 although the money was not due; and the plaintiff was entitled to nom- 
 inal damages. And that the grantee if he chose might pay off the 
 mortgage, and then he might recover the price it cost him. The exist- 
 ence of the incumbrance is the breach of covenant. 
 
 (*535)
 
 OF COVENANTS FOR TITLE. 
 
 609 
 
 of remedy or compensation, must be understood to have 
 discharged himself from, and the vendee, by accepting 
 those means, to have taken upon himself the peril or risk 
 of, such breach, and the duty of enforcing its remedy or 
 compensation. 
 
 2dly. Mr. Fearne, however, thought, that where a 
 vendor retains the title-deeds, he is bound to enter into 
 covenants extending to the acts of the persons against 
 whose acts he is indemnified by the deeds in his posses- 
 sion(e) : but he also thought these covenants should be 
 qualified by the insertion of a covenant on the part of the 
 purchaser, that in case any claim should be made under 
 the vendor's covenants against the acts of the former 
 owner, and he (the vendor) should produce the deeds, in 
 order to enable the purchaser to avail himself of the cove- 
 nants contained in them, then no advantage should be 
 taken of the vendor's covenants. 
 
 This, however, is a distinction never attended to in 
 practice : if a vendor is entitled to retain the deeds, he 
 enters into the usual covenant for the production of them, 
 but never enters into more extensive covenants for the 
 title, on account of the retention of the deeds. 
 
 3dly. Where a vendor does not claim by purchase in 
 the vulgar and confined acceptation of that word(jQ ; that 
 is, by way of bargain and sale for money, or some other 
 valuable consideration, a purchaser is entitled to require 
 covenants from such vendor, extending to the acts of the 
 last purchaser. For instance, if I sell an estate which 
 was devised to me, and the devisor's father purchased the 
 estate, the covenants for title are extended to the acts 
 of the father(^)(251). And a person claiming under a 
 
 (e) See the Lord Buckhurst's case, 1 Rep. 1. 
 
 (/) See 2 Black. Comm. 241. 
 
 (g) See ace. two opins. in 3 Pow. Con v. 206, 210. 
 
 (251) See4Munf. 144. 
 
 VOL. 1. 77 (*536)
 
 glQ OF COVENANTS FOR TITLE. 
 
 voluntary (*)conveyance is considered in the same light as a 
 devisee. So a person whose estate is sold under an order 
 of a court of equity, or by a trustee to whom he has con- 
 veyed it upon trust to sell, is bound to covenant for the 
 title in the same manner as he must have done if he him- 
 self had sold the estate. 
 
 But although the universal and settled practice of con- 
 veyancers is, to extend covenants for the title to the acts of 
 the last purchaser, yet the Court of Chancery appears to 
 hold, that a person not claiming by purchase is only bound 
 to covenant against his own acts, and those of the person 
 immediately preceding him(/i). The rule established by 
 practice is undoubtedly the most reasonable, for every 
 purchaser is certainly entitled to a regular chain of cove- 
 nants for the title. No solid reason can be given why any 
 line should be drawn, and the covenants should extend 
 to the person only who immediately preceded the vendor ; 
 and, however the Court of Chancery may act upon this 
 rule, the practice of the Profession has taken too deep 
 a root to be easily extirpated. 
 
 4thly. Where an estate is sold by trustees under a will, 
 and the money is to be applied in payment of debts, &c. 
 and the residue is given over, a purchaser is not entitled 
 to any covenants for the title, because no line can well be 
 drawn as to the quantum which would make a person 
 liable to covenant ; and therefore, if this rule were not 
 settled, a person who only took 5/. might as well be re- 
 quired to covenant, as one who took a large sum(/)(252). 
 
 The same rule applies ex necessitate where an estate is 
 sold for similar purposes under an order of a court of 
 
 (/i) See 3 Atk. 267 ; 3 Ves. jun. 236 ; and see 14 Yes. 239. 
 
 (t) Wakeman r. Duchess of Rutland, 3 Ves. jun. 233, 504, affirm- 
 ed in Dom. Proc. 8 Bro. P. C. 145 ; and see Lloyd v. Griffith, Atk. 
 264. 
 
 (252) See GranUand v. Wight, 6 Munf. 295. 
 (*536)
 
 OF COVENANTS FOR TITLE. gjj 
 
 equity. If a different rule prevailed, .the consequence 
 (*)would be, that the estate could never be sold by de- 
 cree, till the account was taken of all the debts ; because, 
 before that account was taken, it could not appear who 
 were to join in the conveyance, what was the number, 
 and in what proportions they were beneficially entitled ; 
 but it is the constant practice to sell the estate in the first 
 instance ; of course the title can be made only by the 
 trustees for sale, without calling in the parties who are 
 presumptively beneficially interested(/i:). 
 
 In both these cases, therefore, the purchaser is only en- 
 titled to a covenant from the parties conveying, that they 
 have done no act to incumber. But it is to be lamented, 
 that in these instances also the rule of the Court of 
 Chancery differs from the practice of the Profession ; for 
 it always has been, and still is, the practice of the Pro- 
 fession to make all the cestuis que trust, whose shares of 
 the purchase-money are in anywise considerable, join in 
 covenants for the title, according to their respective in- 
 terests. 
 
 The rule of equity on this subject may of course be al- 
 tered by the agreement of the parties(/) ; and therefore, 
 in all agreements for purchase of estates from devisees, 
 &.C. in trust to sell, the purchaser should stipulate, that 
 such of the persons entitled to the purchase-money as he 
 may require, shall join in the usual covenants for the ti- 
 tle. Where, however, the trust is to pay debts, or trifling 
 legacies, which will exhaust the whole of the purchase- 
 money, it is obvious that such a stipulation could not be 
 carried into effect, and it had therefore better be omitted. 
 It must, however, be remarked, that the case of Wake- 
 man V. Duchess of Rutland is by no means an authority 
 that cestuis que trust of money to be produced by the sale 
 
 {k) See 3 Yes. Jun. 505, 506. 
 (/) See 3 VciJ. Jim. 236. 
 
 (*537^,
 
 612 
 
 OF COVENANTS FOR TITLE. 
 
 of estates devised to trustees to sell, cannot in any instance 
 (*)be required to covenant for the title. Where the mon- 
 ey to arise by sale of the estate is absolutely given to two 
 or more persons, they are substantially owners of the es- 
 tate, and must accordingly covenant for the title. 
 
 So, even where the money is in the first place to be 
 applied in payment of debts, yet if they are all paid pre- 
 viously to the sale, the cestuis que trust must, it is con- 
 ceived, covenant for the title. 
 
 Upon this case another observation occurs. Lord 
 Rosslyn seemed to think it dangerous to make the cestuis 
 que trust parties to the conveyance ; he said, the pru- 
 dence of the common clause, that the receipts of the trus- 
 tees shall be a discharge to the purchaser, would be de- 
 feated, and the purchaser would take upon himself the 
 knowledge of all the trusts of the will(m). If this be so, 
 conveyancers are indeed reprehensible ; but as the pur- 
 chaser buys under the will, whether the cestuis que trust 
 are or are not parties to the conveyance, he is equally 
 affected with the knowledge of the trusts ; and yet, as 
 cujus est dare ejus est disponere, it cannot be supposed 
 that equity would compel a purchaser to see to the ap- 
 plication of the purchase-money, wiien the testator him- 
 self has declared he shall not. In Ewer v. Corbet(«), 
 it was holden, that notice to a purchaser of a bequest of 
 a term did not signifj^, as every person buying of an exe- 
 cutor ichere he is named executor, necessarily must have 
 such notice. This resolution applies to the point in ques- 
 tion, and seems to place it beyond controversy. 
 
 Lastly, in conveyances by the Crown, a purchaser is not 
 entitled to any covenants for the title ; and where an es- 
 tate is sold by assignees of a bankrupt, the purchaser is 
 only entitled to a covenant from the assignees, that they 
 have not done any act to incumber the estate. 
 
 (m) See 3 Ves. Jiin. 236. (n) 2 P. Wms. 148. 
 
 1*538)
 
 OF SEARCHING FOR INCUMBRANCES. gjg 
 
 (*)But a bankrupt is always made a party to the con- 
 veyance of his estate, to prevent the difficulty which the 
 purchaser might otherwise be put to in maintaining and 
 proving the title ; and the bankrupt is generally made to 
 enter into covenants for the title in the same manner as he 
 would have done, had he sold the estate while solvent. 
 
 SECTION V. 
 
 Of searching for Incumbrances. 
 
 It now comes in order to consider in what cases 
 incumbrances should be searched for. 
 
 I. There are few cases in which judgments should not 
 be searched for on the part of a purchaser ; and if there 
 is any reason to suspect the vendor, it is absolutely neces- 
 sary to search immediately before the conveyance is exe- 
 cuted, lest any judgments may have been entered up 
 during the treaty; although if any judgments should be 
 entered up after the purchase-money, being an adequate 
 consideration, is actually paid, equity would relieve the 
 purchaser against the judgments, notwithstanding that 
 they were entered up previously to the execution of the 
 conveyance ; the vendor being, in equity, only a trustee 
 for the purchaser, and a judgment being merely a general 
 lien, and not a specific lien on the land : and this equity 
 prevails, whether the judgment creditor had or had not 
 notice of the contract(o)(I). 
 
 (0) See Nels. Ch. Rep. 184 ; Finch v. Earl of Winchelsea, 1 P. 
 Wms. 278; 10 Mod. 418; 11 Vin. Ab. 118; and see Kennedy r. 
 Daly, 1 Scho. & Lef. 373 ; Prior v. Penpraze, 4 Price, 99. 
 
 (1) See 9 Geo. 4, c. 35, as to judgments binding purchasers in Ire- 
 land. 
 
 (*539)
 
 614 
 
 OF SEARCHING FOR INCUMBRANCES. 
 
 (*)In a case where a reversioner in fee first executed 
 a bond, with a warrant of attorney to enter up judgment, 
 and then mortgaged to another in fee, and on the 1st of 
 January 1810 contracted to sell the estate to a purchaser 
 without notice, and on the 5th of February 1810 a judg- 
 ment was entered up and docketed, on the 28th of No- 
 vember 1812 an elegit issued, and an inquisition taken 
 thereon on the 20th of January 1813, of which notice was 
 given to the purchaser on the 16th of April 1810, but on 
 the 15th of March 1810 the mortgagee in fee and the 
 mortgagor had conveyed the estate in fee to the purchaser 
 without notice, and a part of the purchase-money was 
 secured to the seller by a legal term of years, and which 
 was unpaid when notice of the judgment was given, and 
 afterwards the purchaser paid off the mortgage, and took 
 a surrender of the terni([), upon a bill filed by the judg- 
 ment creditor, the Vice-Chancellor held, that as the 
 greater part of the purchase-money was paid, and the rest 
 secured by the term when the notice was given, the judg- 
 ment creditor had no remedy in equity against the fee. 
 The purchaser was then the mortgagor for the term. 
 The notice therefore was nothing more than notice to the 
 mortgagor that a person to whom he had granted a legal 
 term, by way of mortgage, was indebted on judgment ; 
 but a judgment is, at law, no lien upon a legal term ; and 
 when the interest of the debtor is legal, a judgment is no 
 lien in equity. Notwithstanding this judgment, the debtor 
 could well assign his legal term at his pleasure. If there 
 was no lien upon the term in the hands of the debtor, 
 there could be no lien upon the term in the hands of his 
 assignee(/>). 
 
 ip) Forth V. The Duke of Norfolk, 4 Madd. 503. The case was 
 heard upon appeal before Lord Eldon, who called for further papers. 
 The parties agreed to be bound by his opinion. 
 
 (I) This fact appears from the papers in the cause. 
 
 (*540)
 
 OF SEARCHING FOR INCUMBRANCES. 
 
 613 
 
 (*)lt seems advisable to ask the vendor, or his attorney, 
 whether there are any incumbrances which do not appear 
 on the abstract; for if he answer in the negative, the 
 search for judgments maybe postponed until immediately 
 before the execution of the conveyance ; and if there are 
 any judgments, and the purchase cannot be completed on 
 that account, the purchaser can recover all his expenses 
 from the vendor(^). It should seem, how'ever, that the 
 purchaser would equally be entitled to recover the ex- 
 pense of the conveyance, although he had not inquired 
 after, or searched for, incumbrances before it was prepared, 
 provided that he had examined the abstract with the 
 deeds, and that the abstract did not disclose the incum- 
 bran ces. 
 
 A purchaser who, at the time of his contract, is seised 
 of the legal estate, as a mortgagee, need not search for 
 judgments subsequently to the mortgage, for an equity of 
 redemption is not within the clause of the statute of frauds, 
 which will shortly come under our consideration ; and it 
 is, therefore, not extendable(r)(I)(253). And as the pur- 
 
 {q) Richards v. Barton, 1 Esp. Ca. 268 ; vide supra, ch. 4. 
 
 (r) Lyster v. Dolland, 1 Ves. jun. 431 ; 3 Bro. C. C. 478 ; and see 
 Burdon v. Kennedy, 3 Atk. 739 ; Scott v. Scholey, 8 East, 467 ; Met- 
 calf V. Scholey, 2 New Rep. 461. 
 
 (I) JYoie. An equity of redemption has been held to be assets under 
 the statute of frauds, 2 Freem. 115, pi. 130 ; although the determina- 
 tion appears not to have been acted upon. It were much easier to 
 maintain that an equity of redemption is extendible under the statute. 
 — JVote, the case of Freeman v. Taylor, 3 Keb. 307, was before the 
 statute. 
 
 (253) See Pundevson v. Broxon, 1 Day, 93. Willington v. Gale, 7 
 Mass. Rep. 138. But in Massachusetts, an equity of redemption is 
 made extendable by statute. In Pennsxjlvania, a judgment is a lien upon 
 every kind of equitable interest in land, vested in the debtor at the time 
 of the judgment. Cwkhvff v. Anderson, 3 Binn. 4. But see Hurl 
 V. Reeves, 6 Hayw. 63, 
 
 (*541)
 
 Q^Q OF SEARCHING FOR INCUMBRANCES. 
 
 chaser will, by the contract, acquire equal equity with the 
 judgment creditor, and has already got the legal estate, 
 his title cannot be impeached. Some gentlemen of emi- 
 nence even hold, that notice of judgments entered up sub- 
 sequently to the mortgage will not affect the purchaser ; 
 but (*)it is conceived, that if he purchase with notice, 
 either express or implied, of any judgment, the legal estate 
 will not protect him in equity against the judgment credi- 
 tor. The judgment is a lien upon the estate in equity(5), 
 and confers a right on the creditor to redeem a prior mort- 
 gage or other incumbrance(/)(254). And by the first 
 principles of equity, a purchaser, with notice of any in- 
 cumbrance, is bound by it in the same manner as the per- 
 son was of whom he purchased(M)(255). And, indeed, 
 it has been expressly decided, that a mortgagee, purchas- 
 ing the equity of redemption, is bound by judgments of 
 which he has notice, although they were entered up sub- 
 sequently to the mortgage(a:). 
 
 This doctrine prevailed before the statute of frauds, 
 and has been the observed rule of equity ever since ; and 
 
 (s) Churchill v. Grove, Nels. Cha. Rep. 89 : 1 Cha. Ca. 35. 
 (0 See 2 Cha. Rep. 180. 
 (m) See Anon. 2 Ventr. 361, No. 2. 
 
 (.r) Greswold v. Marsham, 2 Cha. Ca. 170 ; Crisp v. Heath, 7 Vin. 
 Abr. 62, (E). pi. 2. Tunstall v. Trappes, 2 Sim. 286. 
 
 (254) "A legal priority will be preserved in Chancery." Codwise v. 
 Gelston, 10 Johns. Rep. 622. Per KENT. In Virginia, the lien of 
 a judgment upon the lands of the party, relates back to the commence- 
 ment of the term at which it was rendered. J\lutual Ins. Soc. v. Stan- 
 nard, 4 Munf. 639 — 642. See Winston v. Johnson's Exrs. 2 Munf. 305. 
 But in JYorth Carolina, a judgment is a lien upon lands only from the 
 time it is pronounced. Den v. Hill, 1 Hayw. 72, 96. Or from the 
 teste of the ji. fa. 1 Hayw. 99, 100. 
 
 (255) A verbal communication by a stranger to a purchaser, before 
 he receives a conveyance, that a claim to the land exists, is sufficient 
 notice to charge him with the equity of such claim. Currens v. Hart, 
 Hardin, 37. And see Wadsworth v. Wendell, 5 Johns. Ch. Rep. 224. 
 
 (*542)
 
 OF SEARCHING FOR INCUMBRANCES. 
 
 617 
 
 it is said, that previously to the statute of frauds, a judg- 
 ment creditor was in like manner, and upon the same 
 principles, relievable in equity against a conveyance to 
 trustees. And by the tenth section of that statute it is 
 enacted, tliat execution may be delivered upon any judg- 
 ment, statute, or recognizance, of all such lands, &c. as 
 any other person or persons shall be seised or possessed 
 of in trust for him against whom execution is so sued, in 
 the same manner as if he had been seised of such lands, 
 &c. of such estate as they be seised of in trust for him at 
 the time of the execution sued, and shall be held discharged 
 of the incumbrances of the trustee. Upon the construc- 
 tion of this statute it hath been holden, that if a trustee 
 has conveyed the lands before execution sued, though he 
 was seised in trust for the defendant at the time of the 
 (*)judgment, the lands cannot be taken in execution(y). 
 Now it is clear, that where the fee is in trustees, the pur- 
 chaser would not be bound by any judgment, upon which 
 no writ of execution had been sued, and of which he had 
 not notice. But here, as in the preceding case, the pur- 
 chaser, it is contended in practice, cannot be advised to 
 rely on the legal estate in the trustees, where he has 
 notice of any subsequent judgments. Mr. Powell(2:), 
 however, entertained a contrary opinion. After showing 
 that trust-estates can only be taken in execution by virtue 
 of the statute of frauds, he contends, that where the legal 
 estate is in a trustee, notice to a purchaser of judgments 
 is immaterial, because the lands are not liable at law ; 
 and, as equity follows the law, no relief would be granted 
 against the purchaser, through the medium of a court of 
 equity. 
 
 If the case of Hunt v. Coles be an authority, it must 
 
 iy) Hunt V. Coles, Com. 226. See Higgins r. The York Buildings 
 Company, 2 Atk. 137 ; Harris v. Pugh, 4 Bingh. 335 ; 12 Moo. 577, 
 S. C. 
 
 (s) 2 Mort. 4th edit. p. 608. 
 
 VOL. I. 78 (*543)
 
 gjg OF SEARCHING FOR INCUMBRANCES. 
 
 be acknowledged that trust-estates cannot be affected by 
 any execution sued upon a judgment after the trustee has 
 conveyed away the lands. But admitting, that before 
 the statute of frauds, an incumbrancer might be relieved 
 against a conveyance to trustees, it should seem to follow, 
 that the same equity must still be administered. It were 
 difficult to contend, that the statute has concluded the 
 equitable relief. The registering acts expressly enact, 
 that a purchaser shall not be bound by instruments, &c. 
 unless they are registered, notwithstanding which equity 
 will fasten on the conscience of a purchaser who bought 
 with notice of any unregistered incumbrance ; and there 
 is surely greater reason to hold, that the jurisdiction of 
 equity shall not be barred by a statute which merely 
 (*)gives a partial remedy at law without interfering with 
 the equitable rights of the parties. 
 
 The difficulty in the way of the relief would be, that no 
 case can be found, after the most diligent search, in which 
 a judgment creditor has been relieved against a convey- 
 ance to trustees, w^here a purchaser had subsequently 
 acquired the legal estate. The author formerly thought 
 that equity would relieve against the purchaser, if he 
 bought with notice ; but his confidence in that opinion 
 has been shaken by the want of authority in support of 
 it. Nothing but a judicial determination can set the 
 doubt on this point at rest(a). 
 
 The statute only extends to clear and simple trusts for 
 the benefit of the debtor. Therefore a trustee of a term 
 of years for securing an annuity, and subject thereto for 
 the grantor, is not a trustee within the statute(6). 
 
 Where, however, an estate is conveyed to trustees upon 
 trust to sell, and pay debts, &c. and to pay the surplus of 
 the monies to arise by sale to the grantor, and the receipts 
 
 (a) See Steele v. Phillips, 1 Beatty, 193. 
 (6) Doe V. Greeiihill, 4 Barn. & Aid. 684. 
 (*544)
 
 Ot' SEARCHING FOR INCUMBRANCES. gjQ 
 
 of the trustees are made sufficient discharges to the pur- 
 chasers ; the better opinion is, that the purchaser is not 
 bound by any subsequent judgments of which he has 
 even express notice. Great difference of opinion has 
 prevailed in the Profession on this point. Those who hold 
 that a purchaser is bound by such judgments, rightly 
 compare the interest of the grantor in the estate to an 
 equity of redemption. But as such an interest is not 
 extendible, the debt of the judgment creditor can only, 
 it should seem, affect the suplus monies in the hands of 
 the trustees, and is not a lien on the estate itself. When 
 the receipts of the trustees are once made a discharge to 
 the purchaser, there surely is not any equity in a subse- 
 quent (*)incumbrancer to require the purchaser to see to 
 the application of any part of the money. The creditor 
 stands, as to his debt, in the place of his debtor, and con- 
 sequently is entitled to have his debt discharged out of 
 the surplus monies in the hands of the trustees ; but he 
 cannot, it is conceived, claim a higher equity ; the con- 
 trary rule would be productive of infinite inconvenience. 
 In Lodge v. Lyseley(c), a father tenant for life and his 
 son tenant in tail in remainder joined in conveying the 
 estate to trustees to sell, and to pay 30,000/., part of the 
 purchase-money, to the father, and the residue to the son. 
 The trustees, whose receipts were made good discharges, 
 contracted to sell the estate, and judgments were after- 
 wards entered up against the father. The Vice Chancellor 
 held that the purchaser could not be affected by the judg- 
 ments. His Honor observed, that by the conveyance to 
 which the father and son were parties, the son acquired 
 a clear right in equity to have the trusts expressed in the 
 conveyance performed, because he amalgamated his re- 
 mainder in tail (which was converted into a fee by the 
 recovery) with the father's life estate : and it was agreed 
 
 (c) 4 Sim. 70. 
 
 (*545)
 
 620 
 
 OF SEARCHING FOR INCUMBRANCES. 
 
 between them that there should be an immediate sale of 
 the whole, and a division made of the purchase-money. 
 Part was to be applied in payment of the father's 
 debts, and 30,000/. was then to be paid to the father, 
 and the clear residue was then to be paid to the sons ; 
 therefore as soon as the conveyance was executed the son 
 had a clear right to file a bill against the father and the 
 trustees for a sale, according to the trusts expressed ; and 
 inasmuch as part of the trust is, that the trustees should 
 sell and give releases to the purchaser, there could be no 
 execution of the trusts without allowing the trustees to 
 receive the money and give their receipts, which were to 
 (*)discharge the purchasers. This case, he observed, bore 
 no resemblance to the cases mentioned. The case that it 
 most resembled was that which was submitted for Mr. 
 Serjeant Hill's opinion(c^). But even in that case he 
 should not have given the opinion which the learned 
 Seaijeant did, because it appeared to him that from the 
 time the party entered into binding contracts to sell his 
 estates to purchasers, he not having judgments against 
 him at that time, the purchasers had a right to file a bill 
 against him, and have the legal estate conveyed, and if 
 he had subsequently confessed a judgment, that judgment 
 never could have impeded the progress of the legal estate 
 to them. As to the case of Forth v. The Duke of Norfolk, 
 no decision was given there on the point which might 
 have arisen, because the chattel interest had ceased to 
 have existence. His notion was, that it was of the essence 
 of the trusts, which the son, as the purchaser, had a right 
 to have performed, that the trustees should convey the 
 legal estate, and give receipts for the purchase-money. 
 His opinion was so clear, that he did not think that he 
 ought to allow the purchaser to say that there was a 
 doubt on the point. 
 
 (d) See the opinion in 4 Madd. 506, n. 
 (*546)
 
 OF SEARCHING FOR INCUMBRANCES. Q2\ 
 
 As a mortgagee seised or possessed of a legal estate 
 need not search for judgments, so a purchaser, who ob- 
 tains an assignment of a legal subsisting term of j^ears 
 in trust to attend the inheritance, may dispense with a 
 search for judgments, &c. if he be assured that notice 
 of any incumbrance cannot be proved on him or any of 
 his agents. But as notice may be inferred from very 
 slight circumstances, a purchaser cannot be advised in 
 any case, or under any circumstances, to dispense with 
 the usual searches. And even where he does rely on a 
 term of years, yet if it be recently created, incumbrances 
 (*)should be searched for previously to the creation of the 
 term. 
 
 It is, I believe, usual to search for judgments against 
 a vendor, only from the time he purchased the estate ; but 
 this practice is not correct, because judgments bind after- 
 purchased lands, and will consequently affect such lands 
 even in the hands of a purchaser(e)(256). 
 
 (e) See Sir John de Moleyn's case, 30 E. 324 a ; 1 Ro. Abr. S92, 
 pi. 14, 16 ; 42 E. 3, 11 a ; 42 Ass. pi. 17 ; 2 H. 4, 8 b. pi. 42 ; 14 a, 
 pi. 6; 2 Ro. Abr. 472, (P.) pi. 3 ; Shep. Prac. Couns. 305 ; Hickford 
 V. Machin, Winch, 84, per Jones, J. ; and Brace v. Duchess of Marl- 
 borough, in 2d Resol. 2 P. Wms. 492. 
 
 (256) In Colhoun v. Snyder, 6 Binn. 138, Yeates, J. says, " The 
 note subjoined to Sugden, has enumerated some other cases, none of 
 which, upon inspection, will be found to warrant the doctrine in the ex- 
 tent laid down." He also said, that Sir John De JMoleyn^s case " not 
 only does not support the inference of the abridgers, but is directly op- 
 posed thereto." p. 139. The decision in Colhoun v. Snyder, was upon the 
 very point ; and it was held, that judgments were not a lien upon after 
 purchased lands, if aliened before execution. See Rundle v. Ehvein, 6 
 Binn. 136. in note. But in JVew-York, a different rule has been adopt- 
 ed. " It cannot be doubted, that a judgment will attach on lands, of 
 which the judgment debtor becomes seised at any time posterior to the 
 judgment." Stow v. Tifft, 15 Johns. Rep. 464 Per Spencer, 
 J. And an elder judgment is a lien upon lands, in the hands of the 
 purchaser, sold under a fi. fa. issued upon a junior judgment. Ridge' 
 
 (*547)
 
 622 
 
 OF SEARCHING FOR INCUMBRANCES. 
 
 Judgments do not bind leasehold estates till writs of 
 execution are taken out upon them, and delivered to the 
 sheriff(/). And yet, upon purchase of a leasehold es- 
 tate, judgments must be searched for ; because the she- 
 riff will not permit his office to be searched for any 
 writ of execution which may have been delivered there, 
 lest the purposes of the writ should be defeated by the 
 party against whom it is issued absconding, or removing 
 his goods. Therefore, although the judgment will not 
 of itself bind the leasehold estate, yet the purchaser 
 cannot safely complete his contract, where he discovers 
 a judgment, because he cannot be satisfied that an exe- 
 cution issued upon it has not been lodged with the sheriff. 
 When we consider how many valuable leasehold estates 
 are daily brought into the market, we shall perhaps think 
 that the Legislature would do well to enact, that writs of 
 execution intended to bind leasehold estates shall be 
 docketed in like manner as judgments, and that where 
 the estate lies in a register county, they shall be register- 
 ed. 
 
 But old judgments existing against a former owner of 
 (*)a leasehold estate upon which it does not appear that 
 execution issued, will not be considered an objection to 
 a seller's title(g). 
 
 Where only an equity of redemption of a term is pur- 
 chased, the purchaser will not be affected by even an 
 execution lodged, of which he had not notice, foj' such an 
 interest is not extendible under the statute of frauds, and 
 certainly the mere delivery of the writ to the sheriff would 
 not be implied notice to a purchaser(A). 
 
 (/) Vide post. Ch. 16. 
 
 {g-) Caustonr. Macklew, 2 Sim. 242 ; Williams v. Craddock, 4 Sim. 
 313. 
 
 {h) See 1 Yes. jun. 431 ; 3 Atk. 739. 
 
 ley^s Exr. v. Gartrell, 3 Har. & M'Hen. 460. See Sanford v. Koosa, 
 
 12 Johns. Rep. 162. 
 
 C'^548)
 
 OF SEARCHING FOR INCUMBRANCES. Q23 
 
 These observations, respecting judgments, must not be 
 closed without observing, that if a person purchase part 
 of an estate subject to a judgment, and the residue of the 
 estate remain in the hands of the conusor, or descend to 
 his heir, and execution is sued only against the original 
 debtor or his heir, he shall not have contribution against 
 the purchaser, and the consideration of the purchase is 
 not material in these cases. But if execution be sued 
 against the purchaser only, he shall have contribution 
 against the person seised of the residue of the estate, 
 whether they acquired it by descent or purchase(?'). 
 
 Sir Edward Coke observes(y), that when it is said that 
 if one purchaser be only extended for the whole debt, 
 that he shall have contribution ; it is not thereby in- 
 tended that the others shall give or allow to him any 
 thing by way of contribution ; but it ought to be in- 
 tended, that the paity w ho is only extended for the whole, 
 may, by audita querela, or scire facias, as the case re- 
 quires, defeat the execution, and compel the conusor to 
 (*)sue execution of the whole land ; so, in this manner, 
 every one shall be contributory, hoc est, the land of every 
 terre-tenant shall be equally extended. 
 
 II. To resume the consideration of the cases in which 
 incumbrances should be searched for : 
 
 If the estate lie in a register county(I), the registrar's 
 office should be searched, for the purpose of ascertaining 
 not only that the estate is free from incumbrances, but 
 also, that the title-deeds are duly registered ; — the estate 
 may be lost by neglecting to do so. And if it appear 
 
 {{) Sir William Herbert's case, 3 Co. lib. See the distinctions 
 taken in Blakeston f. Martyn, 1 Jo. 90; and see Hartly v. O'Flaherty, 
 1 Beatty, 61. 
 
 0) 3 Co. 14 b. 
 
 (I) For some observations on the registry acts, see infra, eh. 16. 
 
 (*549)
 
 024, OF SEARCHING FOR INCUMBRANCES. 
 
 that any deed has not been duly registered, the vendor 
 must procure it to be registered at his own expense, pre- 
 viously to the completion of the contract ; although, in- 
 deed, it sometimes happens that an instrument not being 
 registered, prevents an objection being made to the title. 
 To give an instance of this, let us suppose a man to have 
 mortgaged his estate, and paid off the money, but to 
 have neglected to take a re-conveyance. Now, in this 
 case, if the mortgage was not registered, the purchaser 
 need not insist upon its being registered, and require a 
 re-conveyance from the mortgagee ; because, as the deed 
 was not registered, the morgagee did not acquire the 
 legal estate, or if he did, would cease to have it by the 
 registry of the conveyance to the purchaser ; and, being 
 paid off, he has of course no equity. So where a partial 
 interest in an estate is devised to the heir at law, with 
 a power of leasing, and he grant a lease not authorized 
 by his power, the lease may, in some cases, be sustained 
 both at law and in equity, in case the will was not regis- 
 tered according to the act. This, however, is a mode of 
 making a title to which necessity only should compel us 
 to resort. 
 
 (*)It is very seldom that wills are registered ; but a 
 purchaser from a devisee should not complete his contract 
 till the will is duly registered ; for should any person pur- 
 chase of the heir at law bona fide, and without notice of 
 the will, and register his conveyance before the registry 
 of the will, he would be preferred to the purchaser from 
 the devisee(A;). 
 
 But if the vendor be both heir at law and devisee, the 
 non-registry of the will is immaterial ; for if he sell to any 
 subsequent purchaser, it must be either in the character 
 of heir at law, or in the character of devisee. If he sell 
 in this character, the second purchaser must have notice 
 
 (A;) See JoUand v. Stainbridge, 3 Ves. jun. 478. 
 (*550)
 
 OF SEAUCHINO f'OR INCUMBRANCKS. gOX 
 
 of the will ; if he coutrnct in that, the first purchaser has 
 already j)roriired the legal estate. 
 
 So it seems clear, that if the vendor claim a leasehold 
 estate, either as executor or legatee, the purchaser need 
 not insist upon the testator's will being registered, because 
 no subsequent purchaser can procure a title without notice 
 of the will ; and it may be remarked, that letters of ad- 
 ministration are never rc2;istered, and they seem to stand 
 upon the same principle as wills of leasehold estates. 
 
 If a purchaser be already seised of the legal estate, as 
 if he be mortgagee in fee, and has contracted for the 
 equity of redem])tion, it is not actually necessary to search 
 the register if he be assured that notice cannot be proved 
 either on himself, or on any one concerned for him ; be- 
 cause the mere registration of deeds, as we shall hereafter 
 see, is not notice to a purchaser seised of the legal estate 
 previously to the purchase, and he will, therefore, be en- 
 titled to hold against any puisne incumbrance of which he 
 had not notice. 
 
 Where the estate lies in the county of Middlesex, judg- 
 ments need only be searched for at the registrar's office, 
 (*)as judgments bind estates in that county only from the 
 time they are memorialized ; but this is not the case in the 
 county of York; for in the North Riding, any judgment 
 registered within twenty days after the acknowledgment 
 or signing of it, is available in the same manner as if it 
 had been registered on the day it was acknowledged or 
 signed(/) ; and in the East and West Ridings, and in 
 Kingston-upon-Hull, thirty days are allowed for the re- 
 gistering of judgments(m). Therefore, where the estate 
 lies in York, or Kingston-upon-Hull, recent judgments 
 must be searched for in the proper courts. 
 
 It has already been observed, that judgments do not 
 
 (/) 8 Geo. II. c. 6, s. 33. 
 
 (»Ji) 6 Anne, c. 18, s. 11 ; 6 Anne,c. 35, s. 28. 
 
 VOL. I. 79 (*561)
 
 Q2Q OF SEARCHING FOR INCUMBRANCES. 
 
 bind leasehold estates till delivery of a writ of execution 
 to the sheriff. Writs of execution upon judgments in- 
 tended to affect leasehold estates in a register county, 
 were formerly never registered(w). From the present 
 practice of registering writs of execution, it may perhaps 
 be concluded that they ought to be registered ; but the 
 registry of them seems causus omissus out of the statutes 
 for registry ; and therefore, upon the purchase of a lease- 
 hold estate in a register county, not only the register, but 
 also the proper courts, should be searched. 
 
 The register ought to be searched immediately before 
 the execution of the conveyance, for the same reason that 
 the search for judgments should be delayed till the last 
 moment. 
 
 And lastly, since grants of annuities have become so 
 prevalent, and can be searched for, it is the duty of the 
 purchaser's solicitor to search for annuities. In a register 
 county they need only be searched for at the registrar's 
 office. 
 
 (*)It may be useful to observe, that if a purchaser is 
 damnified by his solicitor neglecting to search for incum- 
 brances, it is clear that he may recover at law against the 
 solicitor, for any loss occasioned by his negligence(o)(257). 
 But an attorney's negligence cannot, perhaps, in any case, 
 be set up as a defence to an action by him for the busi- 
 ness done, although it should seem that if there is a cross- 
 action by the client against the attorney, the Court will, 
 
 (») Vide infrUy ch. 16* 
 
 (o) Brooks V. Day, 2 Dick. 672 ; Forshall v. Coles, 7 Yin. Abr. 54, 
 pi. 6, MS. ; and Appendix, No. 20; Green r. Jackson, Peake's Ca. 
 236 ; Ireson v. Pearman, 5 Dowl. & Ryl. 687., See Baikie v. Chand- 
 less, 3 Camp. Ca. 17. 
 
 (267) See Huntington v. Riimdell, 3 Day, 390. Smede^s Exrs. v. 
 Elniendorf, 3 Johns. Rep. 185. Dearborn v. Dearborn, 15 Mass. 
 Rep. 316. 
 
 (*552)
 
 OF RELIEF IN RESPECT OF INCUMBRANCES. Qdyn 
 
 upon application, stay the execution in the action by the 
 attorney pending the other^p). 
 
 So if tlie chief clerk, whose duty it is to enter up and 
 docket judgments, neglect to do so, by which a purchaser 
 who has made the proper searches, sustains any loss, he, 
 the purchaser, has a remedy against the clerk by an action 
 on the case(9')(258). And any person who is damnified 
 by the neglect of the registrar of either of the registering 
 counties, may bring an action against him, in which he 
 will recover treble damages and costs of suit, by virtue of 
 the registering acts(I). 
 
 (*)SECTION VI. 
 Of Relief from Incumbrances. 
 
 Having considered in what instances incumbrances 
 should be searched for, let us now inquire, 1st, In what 
 cases a purchaser may detain the purchase-money, if in- 
 cumbrances are discovered previously to the payment of 
 it : and 2dly, To what relief he is entitled, if evicted 
 after the money is actually paid ; and these inquiries will 
 involve the consideration of the cases in which a pur- 
 
 {p) Templer v. M'Lachlan, 2 New Rep. 136. 
 {q) Douglas V. Yallop, 2 Burr. 722. 
 
 (I) By the registering acts for Scotland, the remedy is extended 
 against the heirs of the clerk, although no action shall have been com- 
 menced in the clerk's life-time. 1 Ersk. Inst. B. II. T. III. s. 42. 
 
 (258) See Russel v. Clayton, 3 Call, 41 — 43. Commonwealth v. 
 Walberi, 6 Binn. 292. Work v. Hoofnaglc, 1 Yeates, 506. 
 
 (*563)
 
 QC)0 OF RELIEF IN RESPECT OF 
 
 chaser will be relieved in respect of defects in the title to 
 the estate. 
 
 1. First then, 1. Where an incumbrance is discovered 
 previously to the execution of the conveyance, and pay- 
 ment of the purchase-money, the vendor must discharge 
 it, whether he has or has not agreed to covenant against 
 incumbrances, before he can compel payment of the pur- 
 chase-money (r)(259). 
 
 2. But if a purchaser, before executing the articles, has 
 notice of an incumbrance ?67izc/t- is contingent^ and it is by 
 the articles agreed that the vendor shall covenant against 
 incumbrances, the purchaser has entered into them with 
 his eyes oj)en, has chosen his own remedy, and equity 
 will not assist him(5) ; and he cannot, therefore, detain 
 any part of the purchase-money. 
 
 (*)II. 1. Although the purchaser has paid the money, 
 yet if he is evicted before any conveyance is prepared and 
 executed, or before the conveyance is executed by all the 
 necessary parties, he may recover the purchase-money 
 in an action for money had and received, although the 
 intended covenants do not extend to the title under which 
 the estate was recovered, and he may have taken posses- 
 sion of the estate(0(I)(260). 
 
 ()•) Anon. 2 Freem. 106 ; Yane v. Lord Barnard, Gilb. Eq. Rep. 6 ; 
 Serj. Maynard's case, 2 Freem. 1 ; 3 Svvanst. 651 ; and see 1 Ves. 
 88 ; 2 Ves. 894 ; 2 Yes. jun. 441 ; and 4 Bro. C. C 394. 
 
 (s) Yane v. Lord Barnard, ubi nuij. 
 
 (t) Cripps V. Reade, 6 Term Rep. 606 ; Matthews v. Hollings, 
 Woodfall's Law Land. 35, cited ; Johnson v. Johnson, 3 Bos. & Pull. 
 162; and see Awbry r. Keen, 1 Yern. 472; and see Brig's case, 
 Palm. 364; Simmons v. Hunt, 1 Marsh. 156; Jones v. Ryde, 5 
 Taunt. 488. 
 
 (I) In Robinson v. Anderton, Peake's Ca. 94, Lord Kenyon permit- 
 led a purchaser o^ fixtures in a house which were scheduled in the orig- 
 
 (259) See Witherspoon v. Anderson's Exrs. 3 Des. 246. 
 
 (260) See Judson v. JVass, 11 Johns. Rep. 525, 527. Chde v. Ro- 
 (*554)
 
 INCUMBRANCES. g29 
 
 2. But if the conveyance has been actually executed 
 by all the necessary parties, and the purchaser is evicted 
 by a title to which the covenants do not extend, he can- 
 not recover the purchase-money either at \3.\\(ii), or in 
 equity(a:)(261). 
 
 This was Serjeant Maynard's case(^). The plaintiff 
 exhibited his bill to be repaid 600/. Sir Edward Mose- 
 -ley devised certain Leicestershire lands unto his wife, 
 (afterwards Lady North,) for life, remainder to the first, 
 second, third, fourth, fifth, and tenth son of his sister 
 Maynard, (wife of Joseph Maynard, the Serjeant's eldest 
 son.) in tail, remainder to Nicholas Moseley, the father 
 of Oswald, for life, remainder to Oswald Moseley in tail, 
 
 (m) See Cripps t\ Reade ; Johnson v. Johnson ; and Bree v. Hol- 
 bech, Dougl. 654. 
 
 (ar) Serjeant Maynard's case, 2 Freem. 1 ; 3 Svvanst. 651 ; Anon. 
 2 Freem. 106. 
 
 (y) 3 Swanst. 651. 
 
 inal lease, and belonged to the landlord, to recover the purchase-money, 
 although the person who sold them was an under-tenant, and had 
 himself ignoranlly paid for the fixtures. 
 
 bisons, 2 Johns. Rep. 595. Gillet v. JMaynard, 5 Johns. Rep. 85. 
 Van Eps v. Corporation of Schenectady, 12 Johns. Rep. 436. Shear- 
 er V. Fowler, 7 Mass. Rep. 31. Ellis y. Hoskins, 14 Johns. Rep. 363. 
 Casxcell V. Black River J\lanufactvring Co. 14 Johns. Rep. 453. 
 
 (261) See Hoives v. Barker, 3 Johns. Rep. 506. Mbotl v. Men, 2 
 Johns. Ch. Rep. 523. Frost v. Raymond, 2 Caines' Rep. 188. M- 
 hott V. .Men, 2 Johns. Ch. Rep. 623. Per Kent. Gotiverneur v. Elmen- 
 dorf, 5 Johns. Ch. Rep. 79. 
 
 Where the vendor sells land with warranty, to hold from the death of 
 the grantor, no action will lie to recover back the money paid. Thus, 
 in Wallis r. Wallis, 4 Mass, 135, Parsons, C. J. said, ' The most that 
 can be urged for the plaintiff is, that nothing passed by the deed, as it 
 was intended to convey an estate infuturo ; but he voluntarily paid his 
 money, and took a covenant from the grantor, that after his death, the 
 grantee and his heirs should have the land. But the plaintiff is mistak- 
 en in his construction of the deed ; for by the covenant to stand seised 
 to uses the conveyance can be effected.
 
 630 
 
 OF RELIEF IN RESPECT OF 
 
 with other remainders over, and died in October 1665. 
 The Serjeant goes down into Lancashire, peruses all the 
 writings, (makes agreements with Mr. Edward Moselej, 
 on behalf of his son, not to contest the will, and to dis- 
 charge a lease for eleven years, and thereupon hath 
 10,000/. debt secured by judgment, all which agreements 
 his son flies off from, and tries the will, &c.) and perceiv- 
 ing (*)that if the will stood, (as he believed it would do, 
 having examined all the witnesses upon the place,) then 
 it would be in the power of my Lady North, by joining 
 with Nicholas and Oswald, to bar all the contingent 
 remainders to his daughter's children, who at that time 
 had none, and so the Leicestershire lands, worth 600/. 
 per annum, would be lost : In December 1665 comes to 
 an agreement with Nicholas and Oswald to buy their 
 remainder or possibility in the Leicestershire lands for 
 600/., and pays it down ; and the manner of the further 
 assurance was to be thus : Nicholas and Oswald were to 
 procure the Lady North (without whom it could not be 
 done) to join with them in a common recovery before the 
 end of three years ; and to secure this, Nicholas and 
 Oswald gave a bond of 1,200/. to the Serjeant, condi- 
 tioned, that if no recovery be suffered within three years, 
 whereby the estates of Nicholas and Oswald may be 
 sufficiently barred, then upon the re-conveyance of the 
 premises to repay 600/. After this, Mrs. Ann Moseley 
 sets up a title to the Leicestershire lands by virtue of a 
 will of Sir Edward Moseley's father, found in loose 
 sheets among the evidences, and supposed to be sup- 
 pressed by the son, upon which title she exhibited a bill 
 in this Court, and obtained a decree for the Leicester- 
 shire estate, notwithstanding which eviction the recovery 
 was suffered within the three years by the Lady North 
 and Nicholas and Oswald Moseley in due form ; and now 
 the Seijeant demanded the 600/. in equity, because no 
 
 (*555)
 
 INCUMBRANCES, 
 
 631 
 
 re-conveyance of the premises could be made within three 
 years, in regard the title was evicted, and the recovery 
 did him no good. But Lord Nottingham dismissed the 
 bill. 
 
 Lord Nottingham, in delivering judgment, said that 
 the cause which was heard before, and dismissed, came 
 now to be re-heard at the plaintiff's importunity, who 
 (*)pressed earnestly for a decree, but he continued of the 
 same opinion in substance, and caused the reasons of that 
 opinion to be specially entered by the registrar in manner 
 following : " His Lordship declared, that as this Court 
 suffers no man to over-reach another, so it helps no man 
 who hath over-reached himself without any practice or 
 contrivance of his adversary ; that it was most plain in 
 this case there was no fraud nor concealment in the 
 defendants at the time of the sale of their remainders, 
 but all things were more open, and better known to the 
 plaintiff than they were to the defendants, for the plaintiff 
 had been upon the place and perused the evidence of the 
 family, and the defendants did not solicit the plaintiff to 
 buy, but the plaintiff importuned the defendants to sell 
 their remainders, and had reason so to do, for otherwise, 
 as things then appeared on all hands, the defendants, 
 with the concurrence of the Lady North, might have 
 disinherited the issue male to be begotten on Mrs. May- 
 nard of all the Leicestershire estate, worth 600/. per 
 annum. Accordingly the plaintiff covenants with the 
 defendants for their title for 600/., which was much short 
 of what it was then worth in all appearance, and the 
 plaintiff draws his own assurance, and pens the defea- 
 sance of that bond, upon which he now sues in equity to 
 have back the 600/. and interest, by which very bill the 
 plaintiff admits that the defendants can no way be charged 
 with the bond at law. It remains, ergo, to be considered 
 what grounds there are to charge them in equity ; for the 
 
 (*556)
 
 632 
 
 OF RELIEF IN RESPECT OF 
 
 defendants, who made no corrupt or fraudulent agree- 
 ment at first, insist upon it that they have literally per- 
 formed that agreement which they made, and for which 
 they took their money ; ergo, that the defendants should 
 now be forced in equity to pay back their money and 
 interest, and be put into the same plight in effect as they 
 would have been if they had broken their agreement, 
 (*)seems hard; and the more, because all the reasons which 
 are used to enforce such a decree do arise either from 
 the eviction by Mrs. Ann Moseley, or from the supposed 
 defective and illusory performance of the agreement by 
 the defendants, or from some other circumstance in the 
 case which hath disabled the plaintiff' to sue his bond at 
 law ; and yet no arguments are drawn from any of these 
 heads strong enough to support this bill. For, first, as 
 to the eviction ; although after the bond and the agree- 
 ments the lands were evicted by Mrs. Ann Moseley, so 
 that the defendants may now seem to retain the 600/. 
 for nothing, yet he that purchases lands with any other 
 covenants or warranties against prior titles, as here, where 
 the defendants sold only their own title, if the land be 
 afterwards evicted by an eigne title, can never exhibit 
 a bill in equity to have his purchase-money again, upon 
 that account possibly there may be equity to stop the 
 payment of such purchase-money as is behind, but never 
 to recover what is paid ; for the Chancery mends no man's 
 bargain, though it sometimes mends his assurance ; and 
 it cannot be truly said that the defendants keep the 
 money for nothing, since they have done all which was 
 agreed to be done for it ; but if the plaintiff" had bought 
 that which falls out to be worth nothing, he can complain 
 of none but himself." 
 
 After discussing the manner of the defendants, per- 
 formance of their agreement, the reasons of Lord Notting- 
 ham proceed thus : " For whereas the plaintiff supposes 
 
 (*557)
 
 INCUMBRANCES. 
 
 63S 
 
 himself disabled to go to law, in regard the defendants 
 are not obliged to repay without a re-conveyance, which 
 cannot now be made in regard of Ann Moseley's evic- 
 tion, his Lordship conceived this to be only a pretence ; 
 for whether the title be good or bad, the plaintiff may still 
 proceed to re-convey what was pre-conveyed, and then 
 assign the breach in not suffering a recovery if he think 
 (*)good. And the plaintiff might as reasonably have 
 prayed a decree heretofore that the defendants might not 
 perform their agreement, as pray a decree now that they 
 may be never the better for it, if they have performed it. 
 Wherefore, upon the whole matter, though, if the defen- 
 dants had been plaintiffs for the money, his Lordship 
 would hardly have decreed for them ; as they were de- 
 fendants, and in possession of money upon an agreement 
 executed, his Lordship saw no cause to decree against 
 them. 
 
 But yet he did not absolutely dismiss, but decreed, 
 1st, if plaintiff go to law, defendants to admit a re- 
 conveyance, and not to take advantage of eviction here ; 
 2d, if plaintiff release defendants, to make further as- 
 surance. 
 
 So where(2;) A. bought an estate, to one moiety of 
 which there was a clear defect of title, which his counsel 
 had overlooked, and he was afterwards evicted ; he filed 
 a bill asserting his claim to be repaid a moiety of the pur- 
 chase-money, although the covenants for title did not ex- 
 tend to the eviction, but the bill was dismissed(I). 
 
 (2) See 3 Yes. jun. 236 ; and see 2 Bos. &, Pull. 23. 
 
 (I) In the second vol. of Coll. of Decis. p. 517, 518, a case to the 
 same effect is reported. — Lands which were sold with the warrandice 
 from fact and deed allenarly, being evicted, but not through default of 
 the disposer, the purchaser brought an action, not upon the warrandice, 
 which was not incurred, but upon this ground of equity, that if he has 
 lost the land, he ought at least to have a repetition of the price. It was 
 
 VOL. 1. 80 (*558)
 
 gg^ OF RELIEF IN RESPECT OF 
 
 The facts of this case were as follow : William Davy 
 (*)devised the estate in question to Sir Robert Ladbroke 
 and Lyde Brown, as tenants in common, in fee ; and gave 
 all the residue of his real estate to his brother William 
 Pate in fee. Sir Robert Ladbroke died in the testator's 
 life-time. Robert Pale, as devisee of William Pate, the 
 residuary devisee, conceived himself to be entitled to the 
 moiety devised to Sir Robert Ladbroke, which became 
 lapsed by his death, in the testator's life-lime(I) ; and 
 accordingly Robert Pate joined with the persons entitled 
 to the moiety devised to Lyde Brown, in selling the estate 
 to one Urmston. The conveyance recited the will of William 
 Davy, and all the subsequent instruments, and a covenant 
 was inserted for the title, notwithstanding any act done 
 by Robert Pate, or his ancestors, or any person claiming 
 under him or them. The purchaser finding Robert Pate 
 had no title to the-moiety over which he assumed a power 
 of disposition, but that it had descended to the heir at 
 law of William Davj', filed his bill, praying that the pur- 
 chase-money might be restored to him. Robert Pate, 
 the vendor, demurred to the bill for want of equity, and 
 the demurrer was allowed(«). 
 
 (a) Urmston v. Pate, Chan. 1st Nov. 1794, cited in 1 Tiea. Eq. 
 364, n. and stated in 4 Cruise's Digest, 90, s. 64. 
 
 answered, that when one sells with warrandice from fact and deed, the 
 intention is not to sell the subject absolutely, which would be the 
 same as selling it with absolute warrandice, but oniy to gel! it so as 
 the seller himself has it, that is to sell what title and interest he has 
 in the subject : the purchaser takes upon hiniseif all other hazards ; 
 and, therefore, if eviction happen otherwise than through the fact and 
 deeds in the disponer, he bears the loss. The Lords assoilzed. Craig 
 I'. Hopkins. 
 
 (I) The mistake arose from the case of lapse being considered the 
 same in regard to real and personal estate : in the case of personal 
 estate lapsed legacies fall into the residue ; but where a real estate 
 lapses, it descends to the heir at law, and does not pass to the residuary 
 devisee. 
 
 (*659)
 
 INCUMBRANCES. 
 
 635 
 
 III a case where a purchaser bought and obtained a con- 
 veyance of an estate with all defects and faults of title, 
 and the seller upon being interrogated, stated that no 
 rent had ever been paid, which turned out to be false, 
 and the title being merely a leasehold the estate was re- 
 covered by the lessor; upon an action by the purchaser 
 to recover the purchase-money, it Avas left to the jury to 
 (*)say whether the seller really believed that no rent had 
 ever been paid, in which case the learned Judge told them 
 that the statement was not fraudulent, and he was not 
 liable, and the jury found for the defendant. The Court 
 refused to disturb the verdict. The statement, though 
 false, in fact was not fraudulent. There was no distinc- 
 tion between an active and a passive communication, for 
 a fraudulent concealment is as bad as a wilful misrepre- 
 sentation. A fraudulent concealment by the seller of a 
 fact which' he ought to communicate, would undoubtedly 
 vitiate the sale, but in order to have that effect the con- 
 cealment must be fraudulent. The scienter or fraud is 
 the gist of the action when there is not a warranty(6). 
 
 But it should be observed that in this case, as one of 
 the Judges remarked, the purchaser bought the land with 
 all faults and defects of title. 
 
 So, if a purchaser neglect to look into the title, it will 
 be considered as his own folly, and he can have no relief. 
 It has even been laid down, that if one sells another's 
 estate without covenant or warranty for the enjoyment, it 
 is at the peril of him who buys, because the thing being 
 in the realty, he might have looked into the title, and 
 there is no reason he should have an action by the law 
 where he did not provide for himself(c)(262). But it may 
 
 (6) Early v. Garrett, 4 Mann. & Ryl. 687. As to defects in the 
 quality of the estate, see p. 292. 
 
 (c) Roswell V. Vaughan, 2 Cro. 196 ; Lysney v. Seivy, 2 Lord Rayui. 
 
 (262) See Bumpus v. Plainer, Johns. Cli. Kcp. 213. See also 
 
 Slochion V. Cook, 3 Munf 68. 
 
 (*560)
 
 636 
 
 or RELIEF IN RESPECT OF 
 
 here be remarked, that by the 32 H. 8, c. 9, no person 
 must either buy or sell any pretended title unless the seller 
 or the persons from whom he claims have been in posses- 
 sion of the estate, or of the reversion thereof, or taken the 
 rents thereof for a year before the sale, unless the pur- 
 chaser is in lawful possession, in which case he may buy 
 (*)in any pretended right ; and he will not in any case be 
 affected, unless he bought with notice(c). 
 
 In a late case the statute was pleaded with efirect(f/). 
 In a recent instance this statute was actually pleaded to 
 a bill for a specific performance, on the ground that the 
 plaintiff himself was only entitled under an agreement for 
 purchase of the estate ; but there was no foundation what- 
 ever for such a defence. It is perfectly clear that the 
 statute does not apply to such a case. The sale is not of 
 a pretended right or title, but of the estate in fee-simple 
 in possession, subject certainly to the decision of a court 
 of equity upon the right to a specific performance. There 
 were lately similar cases in court, and one particularly of 
 great magnitude, in which the sub-purchaser would have 
 been happy to avail himself of any objection to get rid of 
 the contract, but it never before occurred to any one to 
 plead the statute. It might with equal force be argued, 
 that a purchaser under an agreement has not a devisable 
 interest, for it is settled, that a mere right of entry is not 
 devisable; and this, it may be said, is "a mere pre- 
 tended right or title." The clear doctrine is, that the 
 purchaser, from the time of the contract, is in equity the 
 owner of the estate, and may devise, sell and dispose of it 
 in the same manner as if the fee were actually conveyed 
 
 1118; Goodlitle r. Morgan, 1 Term Rep. 755; and see Anon. 2 
 Freera. 106 ; and see and consider Hitchcock v. tJiddings, 4 Price, 
 135. 
 
 (c) See 4 Rep. 26 a; Bac. Abr. tit. Maintenance, (E.) 
 
 (d) Hitchins v. Lander, Coop. 34. 
 (*561)
 
 INCUMBRANCES. 
 
 637 
 
 to him, although if equity ultimately refuse a specific 
 performance, the devise, sale or other disposition neces- 
 sarily falls to the ground. In a late case Lord Eldon re- 
 probated the doctrine. His Lordship held clearly, that 
 the sale of an equitable estate under a contract was 
 binding. It was every day's practice. Upon a sale of 
 an interest under a contract, the seller becomes a trustee 
 (*)for the second purchaser, and the second purchaser is, 
 without entering into a covenant, bound to indemnify 
 him against any costs incurred in proceedings for his 
 benefit. The Court not only considers it not unlawful, 
 but compels him to permit his name to be used for the 
 benefit of the second purchaser(e). This puts the point 
 at rest. 
 
 •It is not champerty in an agreement to enable the bona 
 fide purchaser of an estate to recover for rent due, or in- 
 juries done to it previously to the purchase(y). 
 
 " Where a purchaser has taken a defective title, and 
 cannot recover against his immediate vendor, his only 
 remedy is to have recourse to the cov^enants of the earlier 
 vendors, many of which are inherent to the lands, and to 
 some of which, as the covenant for quiet enjoyment, there 
 is no objection, on account of their antiquity, where the 
 , breach is recent(,g-)." 
 
 3. It seems, that if the conveyance be actually exe- 
 cuted, the purchaser can obtain no relief, although the 
 money be only secured. 
 
 In an early case, however(^), where A. had sold to B.., 
 with covenants only against A., and all claiming by, from, 
 or under him, B. secured the purchase-money ; but before 
 
 (e) Wood r. Griffith, 12th Feb. 1818, MS. 
 (/) Williams v. Protheroe, 5 Bing. 309; 3 Yo. & Jerv. 129. 
 (g-) Butler's n. (1). to Co. Litt. 384 a. 
 
 {h) Anon. 2 Cha. Ca. 19 ; and see Fonbl. n. (g) to 1 Trea. Eq. 
 361, 2d edition. 
 
 (*562)
 
 g38 ^^ RELIEF IN RESPECT OF 
 
 payment, the land was evicted by a title paramount to 
 A.^s and Lord Chancellor Finch relieved from the pay- 
 ment of the purchase-money. 
 
 The case, it seems, was not taken by the reporter him- 
 self, and he adds the follo^ving notes or queries to it : 
 
 First. If declaration at the time of the purchase treated 
 (*)on, that there was an agreement to extend against all 
 incumbrances, not only special, it could not have been 
 admitted. 
 
 Secondly. The affirmative covenant is negative to what 
 is not affirmed, and all one as if expressly declared that 
 the vendor was not to warrant but against himself, and 
 the vendee to pay, because absolute without condition. 
 
 Thirdly. Qucere. If this may not be made use of to a 
 general inconvenience, if the vendee, having all the writ- 
 ings, and purchase, is weary of the bargain, or in other 
 respects sets up a title to a stranger by collusion:' 
 
 Nota. In many cases it may be easily done, &c. 
 
 These remarks are unanswerable \ and if the doctrine 
 in this case were law, the consequences would be of a 
 very serious nature ; for what vendor would permit part 
 of the purchase money to remain on mortgage of the 
 estate, if he were liable to lose it, supposing the estate to 
 be recovered by a person a<i;ainst whose acts he had not , 
 covenanted ? Indeed, this point is so very differently 
 considered in practice, that where part of the purchase- 
 money is permitted to remain on mortgage, although the 
 covenants from the vendor be limited, the vendee invari- 
 ably enters into general unlimited covenants, in the same 
 manner as he would have done in the case of an inde- 
 pendent mortgage. 
 
 In a case(f) where an estate was sold before a Master 
 under a decree, and the purchaser under the usual order 
 had paid his purchase-money into the Bank, but it was 
 
 (i) Thomas v. Powell, 2 Cox, 394. 
 (^'^663) •
 
 INCUMBRANCES. 
 
 639 
 
 not to be paid out without notice to him, and he took 
 possession, and approved of the title, and the conveyance 
 to him was executed by all necessary parties ; afterwards, 
 but before the money was paid out of the Bank, the tenants 
 (*)were served with a writ of right, at the suit of an ad- 
 verse claimant ; it was held that the money must be ap- 
 plied under the decree. The Court having given the pur- 
 chaser possession of the estate which he had purchased, 
 and a conveyance under a title which he himself had pre- 
 viously approved, had done all it could for the purchaser, 
 who could not afterwards object to the application of the 
 purchase-money. 
 
 But this does not apply to a sale under the Court, 
 where the rent is misrepresented : although the money 
 be paid into court and possession be dehvered, and a con- 
 veyance executed, yet the Court will give to the purchaser 
 out of the funds in Court, a compensation for the misre- 
 presentation(A;). 
 
 4thly. Although the purchase-money has been paid, 
 and the conveyance is executed by all the parties, yet if 
 the defect do not appear on the face of the title-deeds, 
 and the vendor was aware of the defect, and concealed 
 it from the purchaser, or suppressed the' instrument by 
 which the incumbrance was created, or on the face of 
 which it appeared, he is in every such case guilty of a 
 fraud(/)(263), and the purchaser may either bring an ac- 
 tion on the case, or file his bill in equity for relief. 
 
 But, as Mr. Butler remarks, a judgment obtained after 
 the death of the seller, in an action of this nature, can 
 only charge his property as a simple contract debt, and 
 will not, therefore, except under very particular circum- 
 
 {k) Cann v. Cann, 3 Sim. 447. 
 
 (/) See Harding V. Nelthorpe, Nels. Cha. Rep. 118; and Bree «. 
 Holbech, Dougl. 654, 2d edit. ; and see Freem. 2. 
 
 (263) See Dorsey v. Jackman, 1 Serg. & Rawle, 42. and ante, p. 23. 
 
 C*564)
 
 640 
 
 OF RELIEF IN RESPECT OF 
 
 Stances, charge his real assets. A bill in Chancery, in 
 most cases, will be found a better remedy : it will lead to 
 a better discovery of the concealment, and the circum- 
 stances (*)attending it, and may in some cases enable the 
 Court to create a trust in favor of the injured pur- 
 chaser(m). 
 
 Where a bill is filed against the vendor, and the 
 Court cannot satisfy itself of the fact, an issue will be 
 directed to try whether the vendor did know of the 
 incumbrance(n). 
 
 In a late case, where the sellers knew of a defect in the 
 title to a part of the estate, which was material to the en- 
 joyment of the rest, and did not disclose the fact to the 
 purchaser, and it could not be collected from the abstract, 
 the purchaser, although he was not evicted, was relieved 
 against the purchase in equity. The sellers were decreed 
 to repay the purchase-money, with costs, and likewise all 
 expenses which the purchaser had been put to relative 
 to the sale, together with an allowance for any money he 
 laid out in repairs during the time he was in possession (o). 
 This is a case of the first impression. But after the con- 
 tract is executed by a conveyance and payment of the 
 purchase-money, a bill cannot be filed merely for corn- 
 pen sation(j!y). 
 
 Although the vendor has fraudulently concealed an in- 
 cumbrance, yet the purchaser has no lien on the purchase- 
 money after it is appropriated by the vendor. 
 
 (ju) See Butler's n. (1) to Co. Litt. 34 a. 
 
 (n) Harding v. Nelthorpe, ubi sup. 
 
 (o) Edwards v. M'Leay, Coop. 308 ; affirmed by Lord Eldon on 
 appeal, 11 July 1818, with a reservation of the question as to repairs, 
 MS. ; S. C. 2 Svvanst. 287. The question upon the right to rescind is 
 fully considered, and all the authorities cited, in Mr. Younge's Report 
 of Small V. Attwood. 
 
 {p) Lenham v. May, 13 Price, 749. 
 
 (*565)
 
 INCUMBRANCES. 
 
 641 
 
 Thus, in the case of Cator v. Earl of Pembroke(9), 
 Lord Bolingbroke was tenant for life of a settled estate, 
 with a power to sell and lay out the money arising by sale 
 (*)in other lands ; and in the mean time to invest the same 
 in the funds. Lord Bolingbroke granted life-annuities 
 out of the estate, and then he and the trustees of the set- 
 tlement sold the estate to Cator, who was ignorant of the 
 annuities, and Lord B. covenanted that Cator should 
 enjoy free from incumbrances. The purchase-money was 
 invested in the funds in the names of the trustees, and 
 Lord Bolingbroke granted annuities to Boldero the banker, 
 to the extent of the dividends ; and the trustees, at the 
 request of Lord Bolingbroke, gave Boldero an irrevocable 
 power of attorney to receive the dividends. Cator being 
 evicted by the grantee of the annuities charged on the 
 estate, filed his bill, insisting that he had a lien on the 
 purchase-money invested in the funds, and was entitled 
 to the dividends in exclusion of Boldero. The cause was 
 first heard before the Lords Commissioners Lou^hbo- 
 rough, Ashhurst and Hotham, who thought that Cator had 
 a lien on the dividends, but that Boldero had a preferable 
 equity, and therefore dismissed the bill. The cause was 
 reheard before Lord Thurlow(r), who affirmed the decree, 
 and was moreover of opinion, that Cator could not follow 
 the money when deposited with the trustees, but^ that 
 having taken a covenant for quiet enjoyment and a good 
 title, his remedy was that way. 
 
 Where a purchaser pays part of the purchase-money 
 generally to a creditor of the vendor, by judgment, or 
 other security affecting the land, and also by bond, or 
 other security, which does not afiect the land, it will 
 be considered as a payment in satisfaction of the judg- 
 
 (f/) Cator V. Earl of Pembroke, 1 Bro. C. C. 301 ; and see and 
 consider 12 Ves. juii. 356. 377. 
 (r) 2 Bro. C . C. 282. 
 Vol. I. 81 (A566)
 
 642 ^^ RELIEF IN RESPECT OF INCUMBRANCES. 
 
 ment, or other incumbrance which charges the es- 
 tate (5) (264). 
 
 (*)ft may here be observed, that if a seller is bound 
 to relieve the estate sold from incumbrances, and the pur- 
 chaser buys them up, he ought not to charge more than 
 he paid, as that is the amount of the damage which he 
 sustains by the breach of the covenant to pay ofif the 
 incumbraces(i;)(265). 
 
 (5) Brett V. Marsh, 1 Vern. 468. See Hayward v. Lomax, 1 Vern. 
 24 ; Peters v. Anderson, 5 Taunt. 596. 
 (t) 2 Dow. 296. 
 
 (264) The question agitated in these cases, was, whether the party 
 paying money has a right to direct the appropriation. See Robert v. 
 Garnie, 3 Caines, 14. Mayor of Alexandria v. Patten, 4 Cranch, 317. 
 Field V. Holland, 6 Cranch 8. 
 
 (265) And if the purchaser agree to pay a certain sum, in dis- 
 charge of an incumbrance, for which sum he is" to have a credit in part 
 of the purchase money ; and it does not appear, that the vendor deceiv- 
 ed him with respect to the sum, for which the removal of the incumbrance 
 could be effected, he is not to be credited for any larger sum, which 
 the incumbrancer may have compelled him to pay. Mayo v. Purcel, 3 
 Munf. 243. 
 
 (*567) 
 
 END OF VOL. I.
 
 A 
 
 PRACTICAL TREATISE 
 
 OF 
 
 THE LAW 
 
 OF 
 
 VENDORS AND PURCHASERS 
 
 OF 
 
 ESTATES. 
 
 By sir EDWARD SUGDEN. 
 
 BONiE FIDEI VENDITOREM, NEC COMMODORUM SPEM AUGERE, NEC 
 INCOMMODORUM COGNITIONEM OBSCURARE OPORTET. 
 
 Valerius Maximus, 1. vii. c. 11. 
 
 FROM THE NINTH LONDON EDITION. 
 WITH NOTES AND REFERENCES TO AMERICAN DECISIONS. 
 
 IN TWO VOLUMES. 
 
 VOL. n. 
 
 BROOKFIELD, MASS. 
 PUBLISHED BY E. & L. MERRIAM. 
 
 1836.
 
 Entered according to the Act of Congress, in the year 1836, 
 
 BY E. & L. MERRIAM, 
 in the Clerk's Office of the District Court of Massachusetts. 
 
 E. AND L. MERRIAM, PRINTERS. 
 
 h
 
 THE LAW 
 
 OF 
 
 VENDORS AND PURCHASERS 
 
 OP 
 
 ESTATES. 
 
 CHAPTER X. 
 
 OF INTEREST AND COSTS. 
 
 SECTION I. 
 Of Interest. 
 
 I. Equity considers that which is agreed to be done, 
 as actually performed ; and a purchaser is therefore en- 
 titled to the profits of the estate from the time fixed upon 
 for completing the contract, whether he does or does not 
 take possession of the estate(a) : and as, from that time, 
 the money belongs to the vendor, the purchaser will be 
 compelled to pay interest for it, if it be not paid at the 
 day(6)(266). 
 
 (a) See 6 Ves. jun. 143, 352. 
 
 (6) See Sir James Lowther v. the Countess Dowager of Andover, 1 
 Bro. C. C. 396, and see 6 Ves. jun. 352. 
 
 (266) See Hundlex^^.v. Lijons, 5 Munf. 342. See also, Mayo v. Pur- 
 cell, 3 Munf. 243. In the case of a purchase, the vendee has the pos-
 
 4 OF INTEREST. 
 
 The same rule applies to a sale of a reversion — interest 
 must be paid from the time fixed upon for payment of the 
 (*)purchase-money, because the wearing of the lives is 
 equivalent to taking the profits(c). 
 
 This is so plain a rule, that no disputes could ever arise 
 on it, if the purchase-money were not frequently lying 
 dead ; in which case it becomes a question, whether the 
 loss of interest shall fall on the vendor or purchaser. 
 
 If the delay in completing the contract be attributable 
 to the purchaser, he will be obliged to pay interest on 
 the purchase-money from the time the contract ought to 
 have been carried into effect, although the purchase- 
 money has been lying ready, and without interest being 
 made of it(d). • 
 
 But if the delay be occasioned by the default of the 
 vendor, and the purchase-money has lain dead, the purchas- 
 er will not be obliged to pay interest(e)(267). The pur- 
 chaser must, however, in general, give notice to the vendor 
 that the money is lying de^d(f) ; for otherwise there is 
 
 (c) Davy v. Barber, 2 Atk. 490 ; and see Owen v. Davis, 1 Yes. 82 ; 
 3 Atk. 637 ; vide post as to the sale of a reversion before a Master. 
 
 (d) Calcraft v. Roebuck, 1 Ves. jun. 221. 
 
 (e) Rowland v. Morris, 1 Cox, 69. 
 
 (/) Calcraft v. Roebuck, ubi sup. ; and see Roberts v. Massey, 13 
 Ves. jun. 561. 
 
 session of the land, in lieu of interest ; and therefore, if there be a con- 
 dition to repurchase, it may be done on payment of principal only, unless 
 interest be expressly mentioned ; because, otherwise, the vendee would 
 have double satisfaction ; viz : interest and the use of the land. 
 Thompson v. Davenport, 1 Wash. 127. Where the vendor is indebted 
 to the vendee, and the sale is made in order to pay the debt, the vendor 
 must pay interest from the time the debt is liquidated, until he makes a 
 good title ; and the vendee is accountable for the rents and profits from 
 the time the title is perfected, until the contract is specifically enforced. 
 Hepburn v. Dunlop, 1 Wheat. 179. 
 
 (267) See Wainrighl v. Read, 1 Des. 573. Wightman v. Reside, 
 2 Des. 578. 
 
 (*2)
 
 OF INTEREST. 
 
 no equality : the one knows the estate is producing inte- 
 rest, the other does not know that the money does not 
 produce interest(.o"). Wherever, therefore, a purchaser 
 is delayed as to the title, and means to insist upon this, 
 he ought to apprise the other party that he is making no 
 interest. But even if a purchaser gave such notice, yet 
 if it appears that the money was not actually and bona 
 jide appropriated for the purchase, or that the purchaser 
 derived the least advantage from it, or in any manner 
 made use of it, the Court would compel him to pay 
 interest. 
 
 In Winter v. Blades(/?), the terms of the contract are 
 (*)not mentioned, but the other facts are thus stated : The 
 bill in this cause was filed by the vendor of an estate, 
 merely for the purpose of claiming interest on the pur- 
 chase-money from the time the defendant, the purchaser, 
 was let into possession. The purchase-money was 
 14,000/., and immediately upon entering into the con- 
 tract, the purchaser called in a sum of money, secured 
 by a mortgage, amounting to 12,400/., and upon entering 
 into possession of the estate, gave notice to the vendor 
 that he was ready to invest the purchase-money as he 
 should direct, pending the investigation of the title. 
 The vendor, hoping for an immediate conclusion of the 
 purchase, did not answer that notice. The investigation 
 of the title, however, occupied nine months. The 
 banker of the defendant proved that during the nine 
 months the balance of the defendant in his hands was 
 never less than 14,000/., except during three successive 
 days, when it was 13,876/. ; and one other day, when it 
 was 13,796/. 
 
 The Vice-Chancellor said, if after notice given by the 
 defendant, he had made no profit of the purchase-money, 
 
 (g) Powell V. Martyr, 8 Ves. jun. 146. See Cotner t'. Waikley, ftosL 
 {it) 2 Sim. & Stu. 393. 
 
 (*3j
 
 Q OF INTEREST. 
 
 then it would not be reasonable that he should be charged 
 with interest. But that he has made some profit of the 
 money, appears upon the defendant's own evidence ; 
 first, because his balance at his banker's was in a small 
 degree and for a few days reduced below the amount of 
 the purchase-money, but principally because the pur- 
 chase-money supplied the place of that balance, which 
 he must otherwise have maintained at his banker's. It 
 was decreed that the Master should inquire what was the 
 average balance which the defendant maintained at his 
 banker's during the three years preceding the purchase, 
 computing such balances at the end of every month ; and 
 the Master was also to inquire what was the average 
 balance which during the time in question the defendant 
 (*)maintained at his banker's, computing such balance 
 monthly ; and the Master was to deduct what he should 
 find to have been the defendant's average balance for the 
 three years, from what he should find to have been the 
 defendant's average balance during the time in question, 
 and it was declared that to the amount of that difference 
 the defendant was not chargeable with interest on his 
 purchase-money. 
 
 If no time be limited for performance of the agreement, 
 and the purchaser be let into possession of the estate, he 
 must pay interest on the purchase-money from that time(i). 
 
 It cannot, however, be laid down as a general rule, 
 that a purchaser of estates under a private agreement 
 shall, from the time of taking possession, pay interest. At 
 any rate, although the conveyance be executed, yet he 
 shall not pay interest but from the time of taking posses- 
 sion, if prevented from so doing by the vendor(A:). But 
 it must be a strong case, and clearly made out, in which 
 
 (i) See tx parte Manning, 2 P. AVms. 410. 
 
 (k) Per Lord Hardwicke, in Blount v. Blount, 3 Alk. 636.
 
 OF INTEREST. 
 
 he shall not pay interest where he has received the rents 
 and profits(/)(268). 
 
 Thus, in Comer v. Walkley(m), the purchaser had been 
 in possession of the estate about twenty-two years, with- 
 out any conveyance having been executed ; and he had 
 not paid the purchase-money. The delay was not attri- 
 butable to him, and he stated that his money had been 
 lying ready from the time of the contract, without interest 
 being made by it, as he was in daily expectation of being 
 called upon for payment of it ; and therefore he insisted 
 that he ought not to be compelled to pay interest. Lord 
 Thurlow, however, decreed, that he should pay interest 
 at four per cent, from the time he entered into possession 
 (*)to the time he paid the purchase-money into the Bank 
 by the order of the Court. 
 
 And in a late case, where a particular day was appoint- 
 ed by the agreement for payment of the money, and the 
 purchaser was to have a conveyance on payment of it, 
 the purchaser entered before the conveyance was execut- 
 ed, and, after a delay of several years, during which he 
 had received the rents, being called upon to pay the pur- 
 chase-money, with interest, he resisted the demand of 
 interest ; and in answer to a bill filed against him, it was 
 insisted that interest was not payable, as the money was 
 to be paid on an event depending upon an act to be done 
 by the vendor (namely, the execution of the conveyance) 
 forming a condition precedent to the payment of the pur- 
 chase-money. But Sir Wm. Grant, Master of the Rolls, 
 after observing that the purchaser did not allege that any 
 circumstances had occurred entitling him to relinquish the 
 contract, said, that the act of taking possession was an 
 
 (/) See 8 Ves. jun. 148, 149. 
 
 (m) Reg. Lib. A. 1784, fo. 625 ; Smith v. Skelton, Reg. Lib. B. 
 1799, fol. 807. 
 
 (268) See Wighiman v. Reside, 2 Des. 678, 582. 
 
 (*5)
 
 o OF INTEREST. 
 
 implied agreement to pay interest ; for so absurd an 
 agreement as that the purchaser was to receive the rents 
 and profits to which he had no legal title, and the vendor 
 was not to have interest, as he had no legal title to the 
 money, could never be implied(?i)(269). 
 
 If it be agreed that the purchaser shall take possession 
 of the estate, and pay interest on the purchase-money 
 from that time, and it afterwards appear that a long time 
 must elapse before a title can be made, the purchaser will 
 be entitled to rescind the agreement. 
 
 But if the purchaser acquiesce in the delay until the 
 contract is nearly carried into execution, he cannot then 
 appropriate the purchase-money, and, by giving notice of 
 that circumstance to the vendor, discharge himself from 
 the payment of interest. 
 
 (*)Thus, in Dickenson v. Heron(o), after the execution 
 of a contract for purchase of an estate, it appeared that an 
 act of parliament was necessary to perfect the title, and 
 that some time must elapse before a title could be made ; 
 and it was therefore agreed that the purchaser should take 
 possession of the estate, and pay interest on the purchase- 
 money. Great delays having arisen, and the purchaser 
 thinking exchequer bills, in which the purchase-money 
 was invested, not safe, he sold them, and gave notice to 
 the vendor that the money was lying ready, and without 
 interest being made of it. After the purchase was com- 
 pleted, and the money paid, the vendor filed a bill, assert- 
 ing his right to interest until the execution of the convey- 
 ance. 
 
 The cause was heard before Sir Wm. Grant, Master of 
 the Rolls, who pronounced the following judgment : — 
 
 (n) Fludyer v. Cocker, 12 Ves. jun. 25. 
 
 (o) Rolls, 16th March 1804, MS. See Fludyer v. Cocker, supra. 
 
 (269) See Boyle v. Rowtmd, 3 Des. 655. 
 (*6)
 
 OF INTEREST. 
 
 9 
 
 " An agreement of this nature is totally independent of 
 the interest made by the money. When a purchaser is 
 let into possession, the vendor need not mind what is done 
 with the purchase-money, because the purchaser agrees 
 to pay interest for the money. And such an agreement 
 can only be affected by great delay, because the purcha- 
 ser is not to be kept for ever bound by a disadvantageous 
 bargain ; for the interest might be better than the rents ; 
 in "which case, if the purchaser was to be bound, notwith- 
 standing an unreasonable delay, the vendor would not 
 mind how long he delayed making a title. If the objec- 
 tion had been taken at a different time it would have 
 been better. He should have made the objection when 
 he knew that an act of parliament was necessary, as he 
 was not before in possession of that fact. But he waved 
 this delay, and he consents to continue to pay interest, 
 and writes a letter which clearly implies that ; or he 
 (^)might have waved the agreement. Afterwards he thinks 
 he is entitled to say that he will not pay interest. The 
 ground was totally distinct. He had laid out his money 
 in exchequer bills, and then, upon a supposition that they 
 w'ere not safe, he sold out, and then gave notice that he 
 would not pay interest. He ought certainly to have given 
 notice before he sold out, and to have given the vendor 
 his option, whether he would choose them to remain at 
 his risk, or would wave his interest. This ground was, 
 however, nothing to the vendor, as he had nothing to do 
 with the interest. The only ground upon which he could 
 have waved the agreement, was the delay in the first in- 
 stance. The defendant mistook his case ; he might have 
 come at an earlier period, and insisted not to pay interest ; 
 for a Court would not have held him to an indefinite 
 period. Besides, the notice was not given until a long 
 delay could not take place." And the Master of the Rolls 
 for these reasons decreed the purchaser to pay interest ; 
 VOL. II. 2 (*7)
 
 JQ OF INTEREST. 
 
 but, as he bound himself by his long acquiescence, his 
 Honor would not give costs, and interest was only given 
 up to the time the conveyance was delivered to the ven- 
 dor's attorney for execution, although it was not executed 
 until three months afterwards. 
 
 Where it was stipulated that the purchaser was to pay 
 a deposit of twenty-five per cent., and in case of delay 
 five per cent, interest on the purchase-money unpaid, and 
 that the auction-duty was to be borne equally by the ven- 
 dor and purchaser, the deposit was paid by the purchaser, 
 but he did not pay any part of the auction-duty, and the 
 Court compelled him to pay interest on half of the amount 
 of the auction-duty at five per cent., on the ground that 
 the sum paid into the hands of the auctioneer by the pur- 
 chaser had been less by the moiety of the auction-duty 
 than it ought to have been ; and the circumstance that 
 (*)the auctioneer had applied the deposit in payment of 
 the auction-duty was considered as of no weight(p). 
 
 In the case of timber on an estate to be taken at a 
 valuation, interest on the purchase-money will only com- 
 mence from the valuation, although the interest on the 
 purchase-money for the estate itself may be carried a 
 great way back, because surveyors always value timber 
 according to its present state ; and the augmented value 
 of the timber by growth, is an equivalent for the interest 
 from the time of the contract to the making of the valua- 
 tion(g'). But this, which was a good reason during the 
 war, will not in all times justify the withholding of inte- 
 rest. Many cases have occurred in which tho augmented 
 value by growth between the time of entering into the 
 contract and the completion of it, has not been equal to 
 the depreciation in the market price of the timber during 
 the same period. 
 
 (p) Townshend v. Townshend, 2 Russ. 303. 
 
 (g) Waldron v. Forester, Excheq. June 30, 1807, MS. Vide infra. 
 
 (*8)
 
 OF liSTEREST. J J 
 
 Upon the sale of an estate in possession, under the 
 order of a court of equity, the rule is, that the purchaser 
 is entitled to the possession or rents from the quarter-day 
 preceding his purchase, paying his money before the fol- 
 lowing one(r). 
 
 Where a reversion is sold under the order of a court 
 of equity, interest must be paid from the time of his pur- 
 chase(5). And the same rule applies to an annuity, from 
 which time only the purchaser is entitled to receive the 
 annLiity(/). 
 
 (*)Formerly the practice seems to have been, where 
 estates for life dropped in between a person being re- 
 ported the best purchaser, before a master, and his taking 
 possession, to direct the purchaser to make some com- 
 pensation in consideration of the estate being bettered, 
 or otherwise to go before a master again, and the estate 
 to be put up for a new bidding(M), but the rule is now 
 settled as above stated, and the purchaser, from the time 
 the report is or might be confirmed, is entitled to any 
 benefit by the dropping of lives, or the like. 
 
 In Kenny v. Wrenham, a life-annuity was sold on the 
 18th of April 1818, for 280/. to be paid by instalments : 
 200/. in October 1818, and the residue on or before 
 1st January 1819. It was held that the purchaser was 
 entitled to the annuity from the time of payment of the 
 last, and not from that of the first instalment of the 
 price(a;). 
 
 If, subsequently to a written contract, an agreement be 
 
 (r) Supra, p. 61. See Mackzell v. Hunt, 2 Mad. 34, n. 
 
 («) Ex parte Manning, 2 P. Wnis. 412 ; Child v. Lord Abingdon, 1 
 Ves. jun. 94 ; Twigg i?. Fifield, 13 Ves. jun, 517; but see Davy r. 
 Barber, 2 Atk. 489 ; Blount u. Blount, 3 Atk. 636 ; Growsock v. Smith, 
 3 Anstr. 877 ; Trefusis v. Lord Clinton, 2 Sim. 359. 
 
 (0 Twigg r. Fifield, 13 Ves. jun. 517. 
 
 (u) Blount V. Blount, 3 Atk. 636. See Davy v. Barber, 2 Atk. 489. 
 
 (x) 6 Madd. 355. 
 
 (*9)
 
 12 
 
 OF INTEREST. 
 
 made, that the purchaser shall pay interest on the pur- 
 chase-money from a particular time, and the agreement 
 is reduced into writing, but signed by the vendor only ; 
 yet, if the contract has been in part performed, the pur- 
 chaser will be bound by the subsequent agreement(?/). 
 
 If a purchaser make payments to a seller exceeding 
 the interest due on the purchase-money, of course rests 
 must be made, and the balance only will carry inte- 
 rest(2)(270). 
 
 Where a leasehold estate is sold, and possession is not 
 delivered to the purchaser, if any delay occurs, as it 
 would not be just to make the purchaser pay the whole 
 purchase-money, after j)art of tiie term is elapsed, without 
 his having derived any benefit from the estate, the Court 
 will compel the vendor to pay a rent in respect of his 
 (*)occupation of the estate : and the purchaser to j)ay in- 
 terest on the purchase-money during the delay(a). 
 
 If a tenant for years, at a rent, with an option to pur- 
 chase the fee, declare his option, he is entitled to retain 
 the rent from that time, and in lieu of it must be charged 
 with interest upon his purchase-money(6). 
 
 And where a purchaser has not been in possession of 
 the estate, and the seller receives interest, he will be com- 
 pelled to pay not only the rent which he has received, 
 but that which without his wilful default he might have 
 received(c). 
 
 In a late case, where the contract had been delayed 
 upwards of fifteen years, by the default of the selFer, who 
 
 (y) Owen v. Davies, 1 Ves. 82. 
 (r) Griffith i'. Heaton, 1 Sim. & Stn. 271. 
 (a) Dyer v. Hargrave, 10 Ves. jun. 505. 
 (6) Townley v. Bedwell, 14 Ves 591. 
 
 (c) Aclandu. Saisford, 2 Mer. 28 ; Wilson v. Clapham, MS. ; 1 Jac. 
 & Walk. 36, S. C. 
 
 (270) See Connecticut v. Jackson, 1 Johns. Ch. Rep 13, 17. 
 Stou^hton V. Lynch, 2 Johns. Ch Rep. 209. 
 
 
 ■ « 
 
 i
 
 OF INTEREST. 
 
 13 
 
 
 had received one third of the purchase-money, and also 
 all the rents of the estate, Sir Thomas Plumer, Master 
 of the Rolls, compelled the seller to account not only for 
 the rents, but for interest at four per cent, upon one third 
 of them(d). 
 
 Where, however, interest is more in amount than the 
 rents and profits, and it is clearly made out that the 
 delay was occasioned by the vendor, to give effect to the 
 general rule would be to enable the vendor to profit 
 by his own wrong ; and the Court therefore gives the 
 vendor no interest, but leaves him in possession of the 
 interim rents and profits(e) ; and therefore where a good 
 title is not shown until a given period, the purchaser 
 will pay interest only from that period, and he will of 
 course take the rents from the same time. 
 
 (*)But where there is an express stipulation, that if 
 the conveyance is not executed, and the purchase-money 
 paid by the day named, interest shall be paid until the 
 purchase is completed, it has been held that the terms of 
 that stipulation apply to every de\ay(f). 
 
 In the case of Monk v. Huskisson(^), however, the 
 contract fixed a day for the conveyance to be executed, 
 and provided that the Crown, on payment of the purchase- 
 money, should be entitled to the rents from that day. The 
 contract then provided, " that if, by reason of any unfore- 
 seen or unavoidable obstacles, the conveyance cannot 
 be prepared or perfected for execution on the day named, 
 the Crown should pay interest for the purchase-money 
 from that day (from which time His Majesty is to be 
 
 (d) Burton v. Todd, Todd v. Gee, 31 Mar. 1818, MS. Appendix, 
 No. 21. See Lacon v. Mertins, 3 Atk. 1 ; 12 Ves. jun. 28 ; Wild i'. 
 Fort, 4 Taunt 334. 
 
 (e) Esdaile v. Stephenson, 1 Sim. & Stu. 122 ; Paton v. Rogers, 6 
 Madd. 266 ; Jones v. Mudd, 4 Russ. 118. 
 
 (/) S. C. 
 
 ig) 4 Russ. 121 n. 
 
 (*11)
 
 14 
 
 OF INTEREST. 
 
 entitled to the rents and profits), after the rate of five per 
 cent, per annum, until the completion of the assurances." 
 The title was not made out until a much later period than 
 the day named, and Sir John Leach, Master of the Rolls, 
 gave the sellers interest only from the time when a good 
 title was shown. Upon a re-argument, it was submitted 
 that the express stipulation governed the case ; but the 
 Master of the Rolls held that the effect of the stipulation 
 was not to give interest when interest would otherwise not 
 have been payable, but to fix the rate of the interest to 
 which the vendors might be entitled, at five per cent instead 
 of four per cent. But in Oxenden v. Lord Exmouth(^), 
 the condition was, that if from any cause whatever (ex- 
 cept the wilful default of the vendor), the completion of 
 the purchase made by any purchaser should be delayed 
 beyond the 26th of December, the purchasers respectively 
 so making delay should pay interest to the vendor, after 
 the rate of five per cent., per annum from that time till the 
 (*)completion of the purchase, on the residue then unpaid 
 of the purchase-money. The whole estate was sold by 
 private contract. The purchaser, when the time ap- 
 pointed for completing the contract arrived, insisted that 
 the contract was no longer binding, and took, besides, 
 several objections. Thereupon the vendor filed a bill for 
 a specific performance, and after a severe contest, in the 
 Master's office, the Master reported in favor of the 
 title, and that a good title was shown before the filing of 
 the bill. Exceptions were taken both as to the title and 
 the time of showing it. The former was over- ruled, but 
 the latter allowed. But as the Vice-Chancellor consi- 
 dered that the suit was rendered necessary by the con- 
 duct of the purchaser, independently of title, he held that 
 there was no wilful default within the meaning of the 
 
 [h) V. C. 13 Nov. 1833. MS. 
 (*12)
 
 OF INTEREST. 
 
 15 
 
 condition, and therefore that interest at five per cent, was 
 payable from the day named. 
 
 In a case where a public-house was sold, with the 
 goodwill and the licences, and the furniture, stock, &c. 
 were to be taken at a valuation, and the purchase to be 
 completed at a day named, but the seller continued to 
 carry on the trade beyond that day, although the valua- 
 tions were made, the purchaser objecting to the title : 
 The purchaser was held bound to perform the contract ; 
 and the principle was followed up by charging the pur- 
 chaser with interest on the purchase-money and valua- 
 tion, and with the money expended in the business, and 
 giving him the produce of the business, and the purchaser 
 was to have the present stock in trade. But upon appeal, 
 it was decided that the purchaser was nat liable for the 
 transactions of the trade, and was only to pay for so much 
 of the original stock in trade as could be delivered to 
 him, and was not bound to take the new stock ; but the 
 purchaser was charged with the rent, taxes, and other 
 necessary outgoings of the premises since the time ap- 
 pointed (*)for performance of the contract, with interest 
 thereon, and he was refused an occupation-rent which he 
 claimed from the seller(i). 
 
 The purchaser never pays interest on the deposit, 
 although by his default the seller may have been prevent- 
 ed from receiving it from the auctioneer(A:). 
 
 It frequently happens, that part of the purchase-money 
 is left in the hands of the purchaser, for the purpose of 
 paying off incumbrances at some distant period ; and, in 
 that case, the purchaser must pay interest for it to the 
 vendor(/). 
 
 (t) Dakin v Cope, 2 Russ. 170. 
 
 {k) Bridges v. Robinson, 3 Mer. 694. 
 
 (0 Hughes V. Kearney, 1 Scho. & Lef. 132. 
 
 (*13)
 
 |g OF INTEREST. 
 
 In Comer v. Walkley(wi), it appeared, that a suqi was 
 left in the purchaser's haiids, at interest, as an indemnity 
 against an incumbrance. The purchaser afterwards paid 
 part of the sum to the vendor ; notwithstanding which, 
 the purchaser and his devisees continued to pay interest 
 on the whole for many years. A bill was at length filed 
 to compel payment of the residue of the sum deposited ; 
 and the mistake being admitted, the Master was directed 
 to take annual rests of the over-payments, and to compute 
 interest thereon at five per cent., and the amount of the 
 over-payment and interest to be deducted from the sum 
 which would be found due from the purchaser. 
 
 Where a purchaser is entitled to recover at law a de- 
 posit paid by him to the vendor, he can also recover inte- 
 rest on it from the time it was paid, without an express 
 agreement. 
 
 But where he proceeds against the auctioneer to whom 
 the deposit was paid, he cannot recover interest unless 
 under particular circumstances ; e. g. where, when the 
 title was made out, if the auctioneer was called upon to 
 (*)pay it over, and refused, he might be liable from that 
 time, or perhaps it was said, if he actually made interest 
 of the deposit(7i). An auctioneer ought not to be liable 
 generally to interest : for an auctioneer is bound to keep 
 a deposit till the execution of the contract, as a banker 
 or depositary of it : for which reason it seems doubtful 
 whether, if he actually made interest of it, he ought to be 
 compelled to pay interest(o). 
 
 (m) Reg. Lib. A. 1784, fo. 625. 
 
 («) Farquhar v. Farley, 7 Taunt. 592 ; Lee v. Munn, 8 Taunt. 45 ; 
 1 Moore, 481 ; Curling v. Shuttleworth, 6 Bing. 121 ; 3 Moo. & P. 
 368, S. C. 
 
 (o) See Lord Salisbury v. Wilkenson, 8 Ves. jun. 48 ; and 3 Bro. 
 C. C. 43 ; 14 Ves. jun. 509, cited. See also Browne v. Southhouse, 
 3 Bro. C. C. 107; sed vide Willis r. the Commissioners of Appeals in 
 Prize Causes, 6 East, 22. Gaby v. Driver, 2 Yo. & Jerv. 549. 
 
 (-*14)
 
 OF INTEREST. 
 
 17 
 
 The non-liability of the auctioneer was solemnly de- 
 cided in Harrington v. Hoggart()yJ, although the seller, 
 but without the concurrence of the purchaser, gave him 
 notice to invest the deposit. Lord Tenterden, C. J., in 
 delivering judgment, said, " there is an essential distinc- 
 tion between the character of an agent and that of a 
 stakeholder. The case of Rogers v. Boehm(^) was the 
 case of an agent : and what Lord Kenyon there said, 
 must be understood to apply to a person filling that cha- 
 racter. If an agent receive money for his principal, the 
 very instant he receives it, it becomes the money of his 
 principal. If, instead of paying it over to his principal, 
 he thinks fit to retail it, and makes a profit of it, he may, 
 under such circumstances as occurred in that case, be 
 liable to account for the profit. Here the defendant is 
 not a mere agent, but a stakeholder. A stakeholder does 
 not receive the money for either party ; he receives it for 
 both ; and until the event is known, it is his duty to keep 
 it in his own hands. If he thinks fit to employ it, and 
 make interest of it, by laying it out in the funds or other- 
 wise, (*)and any loss accrue, he must be answerable for 
 that loss ; and if he is to answer for the loss, it seems to 
 me he has a right to any intermediate advantage which 
 may arise. The defendant here has not laid out or made 
 a profit of the plaintiff 's money ; for at the time he laid 
 it out it was not the plaintiff's, and it was doubtful whe- 
 ther it would ever become so or not. Then. there is in this 
 case the special circumstance of the requisition by Sir 
 John Harrington to the defendant, that he should lay out 
 the money. The answer given to that was, " I will do it 
 if Mr. Secretan, the purchaser, will consent ;" which was 
 saying, in effect, though not in words, " I am a stake- 
 holder : I am answerable to Mr. Secretan for the money, 
 
 (p) 1 Barn & Adolph. 677. 
 («/) 2 Esp. 702. 
 
 VOL. II. .3 (*1.5)
 
 10 OF INTEREST. 
 
 or I may be in the result, and I cannot without his con- 
 sent, therefore, do what jou ask." Mr. Secretan's consent 
 was never obtained. As to the offer of an indemnity, it 
 was not insisted upon ; and it could not well be insisted 
 that any person is bound to take the indemnity of an- 
 other. Therefore that special circumstance, in my opi- 
 nion, does not take the case out of the general rule, 
 or deprive the defendant of the character of a stakeholder, 
 or of the advantages, if there be any, which belong to 
 that character, nor exempt him from the obligations 
 arising from it. As to the cases that have been cited 
 upon this subject, there certainly is none in which in- 
 terest has been recovered from an auctioneer. The strong 
 inclination of Lord Eldon's opinion was, that it could not 
 be recovered in this particular case, even although it 
 should appear that a profit had been made. By deciding 
 now, that the defendant is not liable, we certainly do 
 not vary from any principle which has been laid down 
 by a Judge in equity, or make the law in this Court 
 different from the rule in equity. I have observed, that 
 there is no case in which interest has been recovered 
 against an auctioneer. There has been, as there may 
 (*)well be, a recovery of interest by the purchaser against 
 the vendor, where the latter has not been able to com- 
 plete his contract ; but that has been as part of the da- 
 mage which the purchaser sustained by the non-com- 
 pletion of the contract. Part of that damage is the loss 
 of the use of that money, which in the mean time has 
 been lying idle in the hands of the auctioneer. There 
 may be cases also in which the vendor may have a right 
 of action for damages against a purchaser who has failed 
 to complete his contract. But there was no authority 
 to show that an auctioneer is liable to pay interest on a 
 deposit." 
 
 If interest be recovered against an auctioneer, and he 
 
 (*16)
 
 OF INTEREST. 
 
 19 
 
 himself be not in fault, he may recover it from the 
 vendor(r). 
 
 And where the statute of limitations has run, and it is 
 pleaded, but the auctioneer pays the deposit into court, 
 he cannot be compelled to pay interest ; although, but 
 for the statute, the deposit uould have carried interest, 
 as the payment of the principal does not raise any implied 
 promise to pay the interest(5). 
 
 And where the purchaser recovers the deposit only 
 from the auctioneer, he may, in an action against the 
 seller, recover interest on it, and the expenses of in- 
 vestigating the title, under an averment of special 
 damage(/). 
 
 If a vendor cannot make a good title, and the pur- 
 chaser's money has been lying ready, without interest 
 being made by it, the vendor must pay interest to the 
 purchaser(w). 
 
 (*)Thus the law seemed to stand upon the decided ca- 
 ses, and the practice appeared to be conformable to it. 
 But in consequence of some general rules as to interest, 
 which were laid down by Lord Ellenborough in some ca- 
 ses at nisi prius^ it was thought, by some, that interest 
 could not be recovered in many cases in which it had for- 
 merly been obtained(a'). These rules, however, were not 
 intended to embrace every possible case ; for it was not 
 denied that interest may be recovered upon an implied 
 contract for payment of it(2/) ; and, accordingly, in a 
 case before Lord Ellenborough at 7iisi prius, where the 
 
 (r) See Spurrier v. Elderton, 6 lisp. Ca. 1. Qu. it" tlie case can 
 arise after the decision in Harrington r. Hoggart. 
 
 (s) Collyer v. Willock, 4 Bingh. 313 ; 12 Moo. 657, S. C. 
 
 (/) Farquhar r. Farley, 7 Taunt. 692 ; 1 Moo. 322. 
 
 («) Fieureau v. Thornhill, 2 Black. 1078. 
 
 (x) De Havilland v. Bowerbank ; Crocktbrd v. Winter, 1 Camp. Ca. 
 30, 124 ; De Bernales v. Fuller, 2 Camp. Ca. 426. 
 
 (y) Calton o. Bragg, 15 East, 213. 
 
 (*17;
 
 2Q OF INTEREST. 
 
 title was bad, and the j)urchaser, in his action for reco- 
 very of the deposit, declared specially, and alleged by 
 way of special damage, that by reason of a good title 
 not being made, he had lost and been deprived of the use 
 of the money which he had deposited, according to the 
 conditions of sale. Lord Ellenborough said, that they had 
 lately held that interest was not recoverable on money 
 lent, without some eVidence of a contract for that pur- 
 pose ; but he thought that the plaintiff, in the case before 
 him, ought to be allowed interest, as special damage from 
 the day when the purchase ought to have been com- 
 pleted. He averred in his declaration, that by the de- 
 fendant's breach of contract he had since lost the use of 
 his money, and he had proved that averment. There 
 seemed to be no reason, therefore, why this loss should 
 not be compensated to him by the allowance of interest 
 on his deposit, and the purchaser had a verdict accord- 
 ingly (2)(271). This decision agrees with the general 
 practice of the Profession, and has been since followed by 
 (*)the Court of Common Pleas(a) ; but yet Mansfield, C. 
 J. ruled otherwise at 7iisi prius before the last decision ; 
 and in a later case at nisi prius, Lord Tenderden said, he 
 did not know of any case of this kind in which interest 
 had been allowed(6). The legal right to recover, there- 
 fore, is left in great doubt upon the authorities. 
 
 By a recent statute(c) it is enacted, that upon all debts 
 or sums certain, payable at a certain time or otherwise, 
 the jury on the trial of any issue, or on any inquisition 
 of damages, may, if they shall think fit, allow interest to 
 
 (z) Do Bernales v. Wood, 3 Camp. Ca. 258. 
 
 (a) Faiquhar i'. Farley, 7 Taunt. 592 ; 1 Moo. 322. 
 
 (b) Bradshaw v. Bennett, 5 Carr. &- Pay. 48. 
 
 (c) 3 & 4 W. 4, c. 42, s. 28. 
 
 (271) See Ferit v. WalMs, 2 Dall. 252. See also, United States v. 
 Giirney, 4 Cranch, 333. Lightfoot v. Price, 4 Hen. & Munf. 431. 
 (*18)
 
 OF INTEREST. 
 
 21 
 
 the creditor, at a rate not exceeding the current rate of in- 
 terest, from the time when such debt or sums certain were 
 payable, if such debt or sums be payable by virtue of some 
 written instrument at a certain time ; or if payable other- 
 wise, then from the time when demand of payment shall 
 have been made in writing, so as such demand shall give 
 notice to the debtor that interest will be claimed from the 
 date of such demand until the term of payment, with 
 a proviso, that interest shall be payable in all cases in 
 which it is now payable by law. 
 
 Where the biddings before a master are opened, the 
 purchaser will be allowed interest at the rate of 4 per 
 cent, per annum, on such part of the purchase-monies as 
 the Master shall find to have lain dead((/). 
 
 Where the purchaser pays into court a sum of money 
 on account, and in part of the purchase-money, which is 
 invested at the request of the vendor(e), it is the money 
 of the vendor, who is to take the chance of the rise or fall 
 of the stocks(y). 
 
 (*) Where a purchase by a trustee is set aside, and the 
 estate restored to the cestui que trust, the purchaser is 
 allowed interest on the money paid by him, and is com- 
 pelled to pay a rent for the estate during his enjoyment 
 of itfe). 
 
 But where a sale is annulled on account of notice in the 
 purchaser of a prior claim, and he is decreed to account 
 for the rents, it seems that he shall not be charged with 
 interest on the rents(/i). 
 
 Where a purchase was set aside on the ground of fraud, 
 and the purchaser was decreed to pay an occupation-rent, 
 
 (d) This was directed on opening the biddings fbr General Birch's 
 estate, MS. 
 
 (e) This fact does not appear in the Report. S. C. MS. 
 (/) Gellr. Watson, 2 Sim. & Stu. 402. 
 
 {g) Infra, ch. 14. 
 
 {h) Macartney v. Blackwood, Irish Term Rep. 602. 
 
 (*19)
 
 22 
 
 OF INTEREST. 
 
 and to be repaid his purchase-money and interest, annual 
 rents were directed, so that the excess of rent beyond the 
 interest might go in reduction of the capital(i). 
 
 An agreement, that if the purchase-money be not paid 
 at the time stipulated, the purchaser shall pay a rent for 
 the estate, exceeding the legal interest of the money, is 
 not usurious(A;)(272). 
 
 (i) Donovonr. Frickcr, 1 Jack. 165. 
 
 {k) Spurrier v. Mayoss, 1 Ves. jun. 527 ; 4 Bro. C. C. 28. 
 
 ' (272) The subject of usury came under consideration in the late 
 case of Dowdall r. Lenox, 2 Edw. Ch. R. 267, where one NicoU ap- 
 plied to the defendant for a loan of $60,000 in order to undertake a 
 mercantile adventure ; and the defendant made it a condition of the 
 loan that $4,500 part of a larger sum owing by Nicoll to the defendant ; 
 and which had been owing ever since his failure in business years be- 
 fore. And it was part of the agreement that both sums were to be in- 
 cluded in a bond executed by Nicoll and Dowdall bearing interest. The 
 property also was to be insured for the benefit of defendant; and the 
 bill of lading and invoice to come home under cover to defendant : The 
 V. Chan, held, that the transaction was not usurious. He admitted it 
 to be a general rule — that where the transaction is substantially a loan 
 upon an understanding that the money or thing lent is to be returned at 
 all events, the lender cannot lawfully reserve or take to himself any 
 thing in the shape of interest or profit beyond the amount of interest at 
 the legal rate ; and no shift or contrivance for this purpose will be al- 
 lowed to take the case out of the statute. But he proceeded to observe 
 that — " The exceptions to the rule embrace special and peculiar cases, 
 as where, under some circumstances, the lender can charge commissions 
 for transacting business : Nourse v. Prime, 7 J. Ch. R. 69 ; or where a 
 mortgagee out of possession stipulates for the consignment of the pro- 
 duce of the estate mortgaged to be sold by him on commission : Bun- 
 bury V. Winter, 1 J. & W. 255 : Sayers r. Whitfield, 1 Knapp's R. 
 133. 
 
 Some of the most frequent instances of what are deemed shifts or 
 contrivances to elude the statute are, where the loan is made in a de- 
 preciated currency or in bonds, notes or goods of a less value than their 
 nominal amount, as in the Bank of the United States r. Owens, 2 Pet. 
 R, 527 ; — or where the advance of money, although exhibiting all the 
 characteristics of a loan, is made to assume the form of a purchase of a 
 rent charge or an annuity payable out of lands and exceeding lawful
 
 OF INTEREST. 
 
 23 
 
 And an agreement to sell an estate for a principal sum, 
 which, with interest added thereto after the rate of 61. per 
 cent, per annum, for the time the notes had to run, was se- 
 cured by certain promissory notes according to the contract, 
 was held not to be a usurious contract. The Lord Chief 
 Justice said that the case arose out of a contract for the sale 
 of an estate, and not for the loan of money. The agree- 
 ment was founded partly upon what was considered the 
 present price, if paid for at a future day. The only diffi- 
 culty had been occasioned by calling the difference between 
 these two prices interest ; but it was their duty to look, not 
 at the form and words, but at the substance of the transac- 
 tion ; and as on the one hand they should not pay attention 
 
 interest upon the sum advanced : Lloyd v. Scott, 4 Pet. R. 205. And 
 so, likewise, where the borrowing of money is accompanied by the 
 grant of a lease by the borrower to the lender ; the latter taking 
 advantage of the necessities of the former, to obtain a lease at a rent 
 less than the fair yearly value of the lands or upon more advantageous 
 terms than he otherwise could have done at the same time reserving to 
 himself full interest upon the money lent. Moore v. M'Kay, 1 Beat. 
 R. 282 ; 2 Molloy's R. 134. In all the cases, the question seems to 
 have been whether the substance of the transaction 4vas really a loan of 
 money or the creation of a debt, whatever might be the form of the 
 contract ; and if found to be so, then whether the lender or payee had 
 stipulated for or secured to himself, by means of the loan and arising 
 either from it or from any thing connected with it and forming a part of 
 the same transaction, any profit or pecuniary advantage he would not 
 otherwise have been entitled to exceeding the rate of interest allowed 
 by law. That this is the test, appears likewise from the language 
 of Judge Johnson in 2 Pet. 627 SH/>ra. He says, " a profit made or 
 loss imposed on the necessities of the borrower, whatever form, shape, 
 or disguise it may assume, where the treaty is for a loan and the capital 
 is to be returned at all events, has always been adjudged to be so much 
 profit taken upon a loan and to Le a violation of those laws which limit 
 the lender -to a specified rale of interest." So, where, in connection 
 with the loan of money and as part of the transaction, the lender sells 
 to the borrower, while in embarrassed circumstances, bonds, goods or 
 other things at a price exceeding their real value and includes the amount 
 in the security for the loan : Eagleson v. Shotwell, i J. Ch. 535 ; Mor- 
 gan V. Schermerhorn, 1 Paige, Ch. R. 544.
 
 24 
 
 OF INTEREST. 
 
 (*)to the words of the contract if the substance of it went 
 to defeat the provisions of the statute of the 12 Anne, c. 
 16, so on the other hand they ought not to rely upon the 
 words so as to defeat the contract, if in substance the 
 transaction was legal. It appeared to him, that in sub- 
 stance this was a contract for sale of the estate at the 
 price of 20,800/. to be paid by instalments ; in that there 
 was no illegality ; the defence set up therefore failed(/). 
 
 II. Where interest is recovered at law, it is always at 
 the rate of 5 jwer cent.(m), but in equity the rate of inte- 
 rest allowed is 4 j?er cent.(n). 
 
 In Blount v. Blount(o), Lord Hardwicke said, the 
 Court would give such interest as was agreeable to the 
 nature of the land purchased ; but this seems never to be 
 taken into consideration, nor indeed ought it to be ; in- 
 terest being given not so much on account of the profits 
 of the estate, as the unjust detention of the purchase- 
 money. 
 
 In Dickenson v. ReYon(p), at the time the purchaser 
 took possession*of the estate, it was agreed he should pay 
 interest on the purchase-money, but no rate was fixed. 
 The purchase-money, however, then produced 5 per cent., 
 and it was understood between the parties that interest 
 
 {I) Beete v. Bigwood, 7 Barn. & Cress. 453 ; 1 Mann. & Ryl. 143, 
 S. C. 
 
 (m) See now 3 & 4 W. 4, c. 42, s. 28, supra. 
 
 (7j) Calcraft v. Roebuck, 1 Ves. jun. 221 ; Child v. Lord Abingdon, 
 1 Ves. jun. 94 ; Comer v. Walkley, Reg. Lib. A. 1784, fo. 626 ; Pol- 
 lexfen v. Moore, Reg. Lib. B. 1745, fo. 283, at the bottom ; Smith v. 
 Hibbard, Chanc. 11 July 1789 ; M'Queen v. Farquhar, Lib. Reg. B. 
 1804, fol. 1095 ; Browne v. Fenton, Rolls, June 23, 1807, MS., and see 
 Lord Rosslyn's judgment in Lloyd v. Collet, 4 Ves. jun. 609, n ; Ac- 
 land V. Gaisford, 2 Mad. 28 ; Bradshaw v. Midgeley, V. C. 13 Nov. 
 1817, MS. 
 
 {o) 3 Atk. 636. 
 
 (p) Supra, vol. 2. p. 6. 
 
 (*20)
 
 OF INTEREST, 25 
 
 was to be paid at that rate ; and although this under- 
 standing (*)did not appear by any note or writing, the 
 purchaser was decreed to pay interest at 5 per cent. 
 
 And in a case in the Court of Exchequer, it appeared 
 that one tenant in common had sold his share of the 
 estate, and of the timber, to the other, who was let into 
 possession, but no stipulation was made as to interest. 
 The purchase-money was not paid. A bill was filed by 
 the vendor for a specific performance, and a motion was 
 made that the purchase-money might be paid into Court, 
 or a receiver appointed of the estate sold. And it was 
 accordingly referred to the Master to appoint a receiver, 
 who was directed to pay to the vendor, out of the rents, 
 " interest after the rate of 5 per centum per ctnnum, upon 
 the amount of the purchase-money, and the value of the 
 timber on the estate(z)." This cause afterwards came to 
 a hearing, when a specific performance was decreed, and 
 the purchaser was decreed to pay interest. A question 
 then arose as to the quantum, and it was decreed, that 
 the purchaser should pay 5 per cent., although it was in- 
 sisted that 5 per cent, was never given, particularly when 
 not prayed by the bill. Lord C. B. Macdonald said, that 
 as to the quantum, he conceived that nothing less than 
 5 per cent, would be a compensation to the vendor, and 
 that, indeed, they had in many cases lately given 5 per 
 cent, interest, and the reason of it was too w-ell founded 
 to need any discussion : a person would always find it to 
 be his interest to delay the completion of his purchase, 
 when he knows that he is only to pay A< j^r cent., and can 
 make five or six of his money. Mr. Baron Thompson 
 concurred. Mr. Baron Graham wished there had been 
 a general rule, but the Courts had been in the habit of 
 giving 5 per cent, where there was delay. Tiie reasons 
 
 (t) Waldron r. Forester, Exch. 4th May 1804, MS. ; Gaskarth v. 
 Lord Lowther, 12 A'^es. jun. 107; and see i7). 603. 
 
 TGI.. II. 4 (*21)
 
 Og OF INTEREST. 
 
 (*)formerly given had now no ground. The 4> per cent, 
 wh6n established, was the current interest, but now, it 
 was holding out an inducement to persons to delay the 
 completion of contracts, as it was notorious, that money 
 could not be obtained for even five. Besides, here the 
 Court had forejudged the question in making the former 
 order, although that was without prejudice. Mr. Baron 
 Wood concurred, and the Court carried back the interest 
 to Lady-day 1802, when it seems they thought, upon the 
 construction of the several agreements and letters which 
 had passed, that the contract ought to have been com- 
 pleted(^). 
 
 In a very recent case 5 jjer cent, was decreed to be 
 paid, although the conditions of sale were silent as to 
 interest. The purchaser was held to have accepted the 
 title by taking possession ; and the Court said, that they 
 thought where a purchaser withheld the money from the 
 seller, he ought to pay such interest as the seller might 
 have made of the money had it been paid to him, and that 
 this had frequently been done by Lord Alvanley(/). 
 
 However, this is not the rule of the Court of Chancery, 
 nor does the reasoning apply to times when the market 
 rate of interest is below 5 per cent. And accordingly, in 
 a case where the conditions of sale stipulated that the 
 purchaser should be allowed 5 per cent, on the deposit 
 if a title could- not be made, but did not contain any 
 other stipulation as to interest : after a decree in a bill 
 by the seller for a specific performance, upon a motion to 
 vary the minutes, by making the interest payable on the 
 purchase-money 5 per cent., the Vice-Chancellor was of 
 opinion that the general rule must prevail, and that the 
 minutes of the decree were correct, confining the interest 
 
 {k) Excheq. 30th June 1807, MS. 
 
 (/) Burriell v. Brown, Lord C. Baron sitting for the Master of the 
 Rolls, 7 Feb. 1820, MS. ; 1 Jac. and Walk. 168. 
 (*22)
 
 OF COSTS. 
 
 27 
 
 (*)to ^ per cent., and gave the purchaser his costs of op- 
 posing the niotion(m). 
 
 The same rate of interest seems payable, whether the 
 estate be sold by private agreement, or by a Master under 
 a decree of a court of equity. 
 
 As connected with interest, we may here observe, that 
 if the completion of a purchase has been delayed by the 
 state of the title, the Court will compel the seller to make 
 an allowance for any deterioration which the lands, hedges 
 and fences have suffered by unhusbandman-Iike conduct 
 and mismanagement since the date of the contract(«). 
 
 But a purchaser is not entitled to any allowance for 
 deterioration after he took possession, or after there was 
 a title under which he might have taken possession (o). 
 
 Where in a specific-performance suit, the purchaser, 
 who claimed an allowance for deterioration, paid his pur- 
 chase-money into Court under an order, and the amount 
 to be allowed for deterioration was afterwards fixed, he 
 was held entitled to the amount, with interest from the 
 time when he paid his money into court(/7). 
 
 SECTION II. 
 Of Costs. 
 
 At law, the costs abide the event of the action by the 
 vendor er purchaser. In equity, also, the person who 
 
 (m) Thorp v. Freer, H. T. 1820, MS. 
 
 (n) Foster v. Deacon, 3 Madd. 394, and several cases not reported. 
 
 (o) Binks v. Lord Rokeby, 2 Swanst. 226. 
 
 (p) Ferguson v. Tadman, 1 Sira. 530. 
 
 (^23)
 
 2g OF COSTS. 
 
 fails in the suit must prima facie be deemed liable to the 
 (*)costs. But still, although this is the general rule, yet 
 costs in equity rest entirely in the breast of the Court, for 
 the prima facie claim to the costs may be rebutted by the 
 particular circumstances of the case ; and it is for the 
 Court to decide whether those circumstances are, or are 
 not, sufficient to rebut the c\i\\m(q)(27^). 
 
 If a purchaser file a bill for a specific performance, 
 "which is dismissed because the defendant, the seller, can- 
 not make a title ; yet the bill may be dismissed with costs 
 against the defendant(r). 
 
 If the vendor file a bill for a specific performance, which 
 is dismissed because he cannot make a title, and the estate 
 was misrepresented in the particulars, although without 
 fraud, he must pay the costs(5)(275). If the estate was 
 misrepresented, and the auctioneer verbally agreed to 
 allow a deduction if any misrepresentation should appear, 
 the seller's bill would be dismissed, with costs, if he 
 sought to compel the purchaser to take the estate without 
 any allowance, because that would be a fraud. But if 
 the purchaser do not resort to the defence set up by his 
 answer, until after the institution of the suit, that is a 
 ground not to give costs(f). ■*• 
 
 Where there is no misrepresentation, and the question 
 
 (</) Vancouver v. Bliss, 11 Yes. jun. 458. See Scorbrough r. Bur- 
 ton, Barnard. Cha. Ca. 255. 
 
 (r) See and consider Benet College v. Carey, 3 Bro. C. C. 390 ; 
 Lewis V. Loxham, 3 Mer. 429. 
 
 (s) Vancouver v. Bliss, nbi sup. 
 
 {t) Winch V. Winchester, 1 A^es. & Beam. 375. 
 
 (274) See JVicoll v. Trustees of Hiiniingion, 1 Johns. Ch. Rep. 166, 
 182. Alethodist Episcopal Church v. Jacques, 1 Johns. Ch. Rep. 65. 
 Easthurn v. Kivh, 2 Johns. Ch. Rep. 317. Getman's Exrs. v. Beards- 
 ley, 2 Johns. Ch. Rep. 274. Williams v. fVilkins, 3 Johns. Ch. Rep. 
 65. Travis V. Waters, on appeal, 12 Johns. Rep. 500. 
 
 (275) See Butler v. O'Hear, 1 Des. 382, 400. 
 (*24)
 
 OF COSTS. 
 
 29 
 
 turns upon a point of law, upon which the opinion of the 
 Court might fairly be taken, although the bill be dismissed 
 against the vendor, yet it will be without costs(w)(276). 
 If a purchaser is entitled to costs, it is immaterial that the 
 seller was only a trustee for sale(x). 
 
 But where the bill is dismissed against the purchaser 
 (*)vvith costs, yet he will not be allowed costs of objec- 
 tions argued before the Master, but abandoned at the 
 hearing(7/). 
 
 So a purchaser is considered as entitled to take a fair 
 objection, and although it be over-ruled, yet the Court will 
 not on that ground give costs(2) : but this, of course, 
 must always depend upon the weight which the Judge 
 may think due to the objection(a). In one case, indeed, 
 Lord Eldon thought that as the title was forced upon the 
 purchaser, he should act hardly by him, by not giving the 
 title the credit of making him pay the costs, for it would, 
 he said, help the title. As, however, the vendor had 
 contended, but unsuccessfully, that the purchaser had 
 done acts amounting to an acceptance of the title, costs 
 were refused (6) (27 7). 
 
 (u) White V. Foljambe, 11 Ves. jun. 337. See ibid. 463. 
 (x) Edwards v. Harvey, Coop. 40. 
 (y) Hayes v. Bailey, L. C. M. T. 1821, MS. 
 
 (z) Cox V. Chamberlain, 4 Ves. jun. 631 ; Stains v. Morris, 1 Ves. 
 & Beam. 8 ; Sharpe v. Roahde, 2 Rose, 192. 
 
 (a) Burnaby v. Griffin, 3 Ves. jun. 266 ; Bishop of Winchester v. 
 Paine, II Ves. jun. 195. See Powell v. Martyr, 8 Ves. jun. 146; 
 Fludyer v. Cocker, 12 Ves. jun. 25 ; Calverley v. Williams, 1 Ves. 
 jun. 210. 
 
 (b) M'Queen v. Farquhar, 11 Ves. jun. 467. 
 
 (276) In Demarest v. Wrjtikoop, 3 Johns. Ch. Rep. 147, KENT, 
 Chancellor, said, " It is not usual to give costs, where an unfortunate 
 claimant has color of claim, and is barred by lapse of time." And see 
 Lamar v. Jones, 3 Har. & M'Hen. 328. 
 
 (277) Where a plaintiff had probable cause for seeking the aid of the 
 court, and failed in establishing his title, but the defendant shewed none, 
 
 (*25)
 
 30 
 
 OF COSTS. 
 
 Where the objection to the title has already been de- 
 cided in a former cause, of which the purchaser had notice, 
 the purchaser will be decreed to pay the costs of the 
 suit(c). 
 
 And although a purchaser may fairly object to a title 
 on the ground of a doubtful fact ; yet if the fact is found 
 against him, he cannot claim costs, although he will not 
 be compelled to pay them. This was decided in Thorpe 
 V. Freer(f/), where the bankrupt was made a party to the 
 suit, to establish the fact that he had not executed the power 
 before his bankruptcy. He demurred to the bill, as he 
 (*)might be examined in the bankruptcy, and Sir John 
 Leach, Vice-Chancellor, allowed the demurrer. He was 
 then examined before the commissioners, and upon the 
 examination it was held that the power remained unexe- 
 cuted. Upon these grounds, it was contended on behalf 
 of the purchaser that he was entitled to his costs, as it 
 was necessary to establish the fact, but they were refused 
 to him on the ground above stated. 
 
 In a case where the Master reported that the abstract 
 delivered by the vendor before the filing of the bill was 
 sufficient, but he found that the purchaser required cer- 
 tain evidence in support of the abstract, some of which 
 was necessary, but not furnished, and some not necessary, 
 the Lord Chancellor held that both of the parties were in 
 the wrong ; and, upon the vendor's bill, his Lordship held 
 tliat no costs ought to be given on either side(€). 
 
 Where a seller does not make out his title until after 
 the bill is filed, he is liable to pay the costs of the suit up 
 
 (c) Biscoe V. Wilks, 3 Mer. 456. 
 
 (d) MS. See 4 Madd. 466. 
 
 (c) Newall V. Smith, 1 Jac. & Walk. 263. 
 
 or no belter title to the property in dispute, the bill was dismissed with- 
 out costs on either side. JVicoll v. Trustees of Htmtmgton, 1 Johns. 
 Ch. Rep. 183. 
 
 (*26)
 
 OF COSTS. 
 
 31 
 
 to the time that he showed a good title(/). But the 
 Court will not let this rule operate as a trap for the seller ; 
 and if further abstracts are furnished after the bill is filed, 
 will inquire whether they are material. So as to evi- 
 dence. But, as to evidence, much depends upon the fact 
 whether further evidence was required by the purchaser. 
 In one case an act of parliament, for releasing the estate 
 from certain portions, was obtained after the filing of the 
 bill. The Master found that a good title was shown 
 when the act was delivered to the purchaser. The pur- 
 chaser claimed the costs to a later day, on the ground that 
 the act recited a release by deed of other portions, an 
 (*)abstract of which had not been furnished. The Vice- 
 Chancellor held that the act was tantamount to an ab- 
 stract, and that the purchaser should have called for an 
 abstract for the deed, if he had intended to insist upon 
 the want of it, an as objection(,o-). 
 
 Where the purchaser might, if he pleased, have had 
 the evidence furnished to him before the bill is filed, 
 although the Master reports that the title was not made 
 out until the evidence was produced, the purchaser will 
 have to pay the costs(/i). And in Oxenden v. Lord 
 Exmouth(i), the Court held that the suit became neces- 
 sary by the improper conduct of the purchaser ; and 
 therefore the Vice-Chancellor, although he had allowed 
 as a fact that the title to a part of the estate was not 
 shown until after the filing of the bill, yet held that 
 as the purchaser's misconduct rendered the suit neces- 
 sary, he must pay all the costs. 
 
 In the case of Smith v. Leigh(/c), the Master found that 
 
 (/) Wilson V. Allen, 1 Jac. & Walk. 623, and many MS. cases. 
 See Wynu i'. Morgan, 7 Ves. jun. 202 ; CoUinge's case, 3 Ves. & 
 Bea. 143, n. (a) ; Lewin r. Guest, 3 Russ. 325. 
 
 (g) Emery r. Growcock, 1821, MS. 
 
 (h) Long V. Collier, 4 Russ. 269 ; Holwood v. Bailey, 271. 
 
 (»•) 13 Nov. 1833. MS. supra, p. 11. 
 
 (A.) V. C. 10 Aug. 1821, MS. ; and see Lill v. Robinson, 1 Beatty,86. 
 
 (*27)
 
 32 OF COSTS. 
 
 ihe seller could make a title in February 1820, which 
 was subsequently to filing the bill. To the Master's re- 
 port the purchaser took an exception, and elected to have 
 a case sent to law, which the Vice-Chancellor granted as 
 a matter of course. The point was decided against him ; 
 and, upon the cause coming on for further directions, the 
 exception was over-ruled, and a specific performance de- 
 creed, and the purchaser was to be paid the costs up to 
 February 1820, other than the costs of his insisting, by 
 his answer, on the illegality or abandonment of the agree- 
 ment, and the purchaser was to pay the costs of the sub- 
 sequent proceedings before the Master, and the costs of 
 (*)the case to the Common Pleas, and the plaintiif was 
 to pay the costs of the hearing. 
 
 In the case of Bruce v. Bainbridge(/), where the bill 
 was filed by the seller, the Master's report was in favor 
 of the title, a case was sent to the C. P., and the certi- 
 ficate was against the title. The bill was dismissed with 
 costs, from the date of the Master's report. 
 
 But if a good title is not shown until after the bill is 
 filed, and the purchaser take no step inconsistent with the 
 finding of the Master, the seller must pay the costs of the 
 whole suit(m). 
 
 If a seller, upon a reference to the Master, establish his 
 title upon a different ground from what appeared in the 
 abstract, the purchaser will be allowed the costs of the 
 reference and the applications to the Court(w). So, 
 where a purchaser might in the first instance have re- 
 scinded the contract, but binds himself by long acquies- 
 cence, the vendor will not be entitled to costs(o). 
 
 (/) Same day, MS. 
 
 (m) Annesley v. Muggeridge, V. C. 12 Mar. 1825, MS. ; and Os- 
 baldeston v. Askew, V. C. 11 Mar. 1829, MS. 
 (») Fielder v. Higginson, 3 Ves. & Bea. 142. 
 (o) Dickenson v. Heron, sup. vol. 2. p. 6. 
 (*28)
 
 OF COSTS. 
 
 Lord Thurlow has said, that if a purchaser will not wait 
 until the title is cleared, but will take possession, and put 
 the vendor to all the inconvenience of the discussion, 
 when he is out of possession, and the other has got it, 
 that weighs much as to costs(/>). But the circumstance 
 of taking possession is not important, where, by the terms 
 of the contract, the title is to be made good at a subse- 
 quent period, much less is it material where the purchaser 
 is induced to take possession at the instance of the vendor 
 himself(9). 
 
 (*)It is, however, to be repeated, that every case must 
 stand on its own grounds, although, from these few in- 
 stances, some notion may perhaps be formed of what the 
 Court is likely to do in other cases. To multiply the 
 instances in which costs in equity have been given or re- 
 fused would be as useless as it would be tedious. 
 
 {p) 11 Ves. jun. 464. See Calcraft v. Roebuck, 1 Ves. jun. 222. 
 (f/) 11 Ves. jun. 464. Vide snjy. \o]. 1. p. 10. 
 
 vol.. H. 6 (*29)
 
 [ 34 j 
 
 nCHAPTER XI. 
 
 OF THE OBLIGATION OF A PURCHASER TO SEE TO THE 
 APPLICATION OF THE PURCHASE MONEY. 
 
 Where a trust is raised hy deed or will for sale of an 
 estate, a clause, that tiie receipts of the trustees shall be 
 sufficient discharges for the purchase-money, is mostly 
 inserted, and rarely ought to be omitted ; because, not- 
 withstanding that a purchaser would, at law, be safe in 
 paying the money to the vendors, although they were 
 trustees, yet equity will, in some cases, bind purchasers 
 to see the money applied according to the trust, if they 
 be not expressly relieved from that obligation by the 
 author of the trust ; and where the purchaser is bound 
 to see to the application of the money, great inconve- 
 nience frequently ensues, and, in some instances, it would 
 be difficult to compel the purchaser to complete the con- 
 tract. 
 
 The rules on this subject, — principally with a view to 
 testamentary dispositions, — may be considered under two 
 heads : First, with respect to real estate. Secondly, with 
 respect to leaseholds, or chattels real. For the rules ap- 
 plicable to the different species of estates are, as regards 
 testamentary gifts, dissimilar ; owing to the much greater 
 power which a testator has over his real, than over his 
 personal estate. 
 
 Previously to the statute of fraudulent devises(«), free- 
 hold lands were not bound by even specialty debts in the 
 hands of an hcsres factum ; although an hceres natus was 
 
 (a) 3 W. & M. c. 14. 
 
 (*30)
 
 APPLICATION OF PURCHASE MONEY. 
 
 35 
 
 (*)liable to specialty debts in respect of land descended(I) ; 
 but personal property, which was formerly of very trifling 
 value, was always holden to be subject to the payment of 
 debts generally, however the same might be bequeathed. 
 And by the statute of Westminster 2,(6), it was enacted, 
 that even the ordinary should be bound to pay the debts 
 of the intestate, so far as his goods would extend, in the 
 same manner as executors were bound in case the deceased 
 had left a will. In fact, no man can exempt his personalty 
 from the payment of his debts; but it must go to his 
 executors as assets for his creditors, and be applied in 
 a due course of administration ; that is, however it may 
 be bequeathed^ it must go to the executors, upon trust, in 
 the first place, for payment of debts generally. Now, 
 although the author of the trust may have neglected to 
 free the purchasers of his property from the obligation of 
 seeing that the money is duly applied, yet equity hath 
 thought it reasonable that a purchaser should see to the 
 application of the purchase-money where the trust is of a 
 defined and limited nature only ; and not where the 
 trust is general and unlimited, as a trust for payment of 
 debts generally. 
 
 (6) 13 Ed. I. c. 19. 
 
 (I) Although an heh- at law is bound by specialty debts in respect of 
 lands descended, yet a purchaser of those lands, without notice of any 
 debts, was never holden to be subject to them. The statute of fraudu- 
 lent devises was always considered as placing a devisee on exactly the 
 same footing as an heir at law ; but it was lately contended (see Mat- 
 thews V. Jones, 2 Anst. 606,) that the debts of the testator would bind 
 a purchaser from the devisee, although he bought bond fide and without 
 notice. But this was over-ruled. Equity will, however, in behalf of 
 creditors, grant an injunction against a purchaser to restrahi payment to 
 the heir. Green v. Lowes, 3 Bro. C. C. 217. In Woodgate v. Wood- 
 gate, MS. Lord Eldon was of opinion, that simple contract creditors, 
 under 47 Geo. IlL stand in the above respect in the same situation as 
 specialty creditors under the statute of fraudulent devises. 
 
 (*31)
 
 36 OF SEEING TO THE APPLICATION 
 
 (*)From these rules it necessarily follows, that a bo7ia 
 jide purchaser of a leasehold estate from an executor 
 ought not to be bound to see to the application of the pur- 
 chase-money, although defined and limited trusts be de- 
 clared of the purchase-money. But, as a testator can de- 
 clare an original limited trust of his real estate, wherever 
 such a trust is created, the purchaser is bound to see the 
 money duly applied. 
 
 SECTIOiN I. 
 Of this Liability, with reference to Real Estate. 
 
 And first, with respect to real estate. 
 
 1. If the trust be of such a nature, that the purchaser 
 may reasonably be expected to see to the application of 
 the purchase-money, as if it be for the payment of lega- 
 cies, or of debts u hich are scheduled or specified, he is 
 bound to see that the money is applied accordingly(c)(279), 
 and that although the estate be sold under a decree of 
 
 (c) Culpepper ». Aston, 2 Cha. Ca. 221. See Show. 313; Spalding 
 V. Shalmer, 1 Vern. 301 ; Dunch v. Kent, 1 Vern. 260 ; Anon. Mose. 
 96 ; Abbot v. Gibbs, 1 Eq. Ca. xVbr. 358, pi. 2 ; Elliott r. Meiryman, 
 Barnard. Rep. Cha. 81 ; Smith v. Guyon, 1 Bro. C. C. 186, and the 
 cases cited in the notei^I) ; and see 1 Ves. 215. 
 
 (I) One of these cases, Langley v. Lord Oxford, is in Reg. Lib. B. 
 1747, fol. 300 ; see post, S. C. Ambl. 17. The other cases, Tenant 
 V. Jackson, and Cotton v. Everall, are in Reg. Lib. 1773, B. fol. 120, 
 481. 
 
 (279) See JSlurray v. Ballon, I Johns. Ch. Rep. 666. 575. Liii' 
 ing V. Pfijfon, 2 Des. 375 : and note, 378. 
 (*32)
 
 OF PURCHASE MONEY. 
 
 37 
 
 a court of equity(f/), or by virtue of an act of parlia- 
 ment(e)(280). 
 
 And the 47 Geo. 3, c. 74(/), which makes the real 
 (*)estates of traders liable to simple-contract debts, does 
 not alter the rule ; and therefore a purchaser from a de- 
 visee of a trader is liable to the application of the pur- 
 chase-money where legacies only are charged on the estate 
 by the will(^) ; and the same principle will therefore ap- 
 ply to the 3 & 4 Will. 4, c. 104, which makes all real estates 
 of persons who die after the 29th of August 1833, liable 
 to all simple-contract debts. 
 
 2. If more of an estate be sold than is sufficient for 
 the purposes of the trust, that will not turn to the preju- 
 dice of the purchaser; for the trustees cannot sell just 
 sufficient to pay the debts, fee. Besides, in most cases, 
 money is to be raised to pay the trustees' expenses(A). 
 
 3. Where the trust is for payment of debts generally, 
 a purchaser is not bound to see to the application of the 
 purchase-money, although he has notice of the debts ; 
 for a purchaser cannot be expected to see to the due 
 observance of a trust so unlimited and-undeiined(z)(281). 
 
 4. Nor is a purchaser bound to see the money applied, 
 where the trust is for payment of debts generally, and 
 
 (d) Lloyd V. Baldwin, 1 Ves. 173. See Binks v. Lord Rokeby, 2 
 Madd. 227. 
 
 (e) Cotterell v. Hampson, 2 Vern. 5. 
 
 (/) Repealed and re-enacted by the 1 W. 4, c. 47. 
 
 (g) Horn V. Horn, 2 Sim. & Stu. 448. 
 
 {h) Spalding v, Shalmer, 1 Vern. SOL 
 
 (i) See the cases cited above, and Humble v. Bill, 1 Eq. Ca. Abr. 
 358, pi. 4 ; Ex parte Turner, 9 Mod. 418 ; Hardwicke v. Mynd, 1 
 Anstr. 109 ; and "VVilliamson v. Curtis, 3 Bro. C. C. 96 ; Barker v. 
 Duke of Devon, 3 Mer. 310.. 
 
 (280) See Falliaferro v. Minor, 1 Gall, 524. 
 
 (281) See Lining v. Peyton, 2 Des. 378; in note. 
 
 (*33;
 
 38 
 
 OF SEEING TO THE APPLICATION 
 
 also for payment of legacies(i) ; because, to hold that he 
 is liable to see the legacies paid, would in fact involve 
 (*)him in the account of the debts, which must be first 
 
 paidOX")- 
 
 5. And for the same reason the purchaser is, of course, 
 
 not bound to see that only so much of the estate is sold 
 as is necessary for the purposes of the trust. 
 
 6. But although there be no specification of the debts, 
 yet a purchaser, it is said, must see to the application of 
 the money where there has been a decree ; as that re- 
 duces it to as much certainty as a schedule of the debts. 
 In such cases, therefore, the purchaser should not pay to 
 the trustees, but must see to the application, and take 
 assignments from the creditors : otherwise he should 
 apply to the Court, that the money may be placed in the 
 Bank, and not taken out without notice to him ; the 
 reason of which is, that it is at his peril(A:). It is now, 
 however, the prevailing opinion that the purchaser is not, 
 in such a case, bound to see to the application of the 
 money. The Court takes upon itself the application of 
 the money. 
 
 7. It is the general opinion of the Profession, that 
 
 {j) Jebb V. Abbot, and Benyou v. Collins, Butler's n. (1) to Co. 
 Litt. 290 b, s. 12 ; and Rogers v. Skillicorne, Ambl. 188. 
 {k) Lloyd V. Baldwin, 1 Yes. 173. 
 
 (I) The above rule, although so long and clearly settled, appears to 
 have been entirely overlooked in the case of Omerod v. Hardman, be- 
 fore the Duchy Court, reported in 5 Yes. jun. 722 ; but this case can 
 by no means be considered as an authority, and has been expressly de- 
 nied by Lord Eldon See 6 Yes. jun. 654, n. Qu. however, whether 
 the case of Omerod v. Hardman was not thought to be within the 
 principle stated in pi. 13, post. 
 
 (II) And where the whole money has been raised, the heir or devisee 
 will be entitled to the estates unsold, and the creditors or legatees will 
 have no remedy against the same ; because the estate is debtor tor the 
 debts and legacies, but not for the faults of the trustees. Anon, in 
 Dom. Proc. 1 Salk. 153. 
 
 (*34)
 
 OF PURCHASE MONEY. 
 
 39 
 
 where the time of sale is arrived, and the persons entitled 
 to the money are infants or unborn, the purchaser is not 
 bound to see to the application of the money ; because he 
 would otherwise be implicated in a trust, which in some 
 cases might be of long duration. This point has lately 
 been so decided(/). 
 
 (*)8. But if an estate is charged with a sum of money 
 for an infant, payable at his majority, and there is no di- 
 rection to appropriate the money, a purchaser cannot safe- 
 ly complete his purchase, although the money be invested 
 in the funds as a security for the payment of the legacy 
 to the infant, when he shall become entitled ; for if, in 
 the event, the fund should turn out deficient for payment 
 of the infant's legacy, he may still have recourse to the 
 estate for the deficiency. And it should seem, that even 
 a court of equity cannot, in a case of this nature, bind the 
 right of an infant(m). 
 
 9. It appears to be thought by the Profession, that 
 although the trusts are defined, yet that payment to the 
 trustees is sufficient, wherever the money is not merely 
 to be paid over to third persons, but is to be applied 
 upon trusts which require time and discretion, as where 
 the trust is to lay out the money in the purchase of 
 estates(282). 
 
 And it now appears that this point was decided as far 
 back as in 1792(/i), where in a settlement of real estates 
 with a power of sale, the trustees were to receive the 
 purchase-money, and to lay it out again in lands to the 
 uses of the settlement, and till that was done to invest it 
 in government funds, &c. It was objected that a good 
 
 (/) Sowarsby v. Lacy, 4 Madd. 142 ; Lavender v. Stanton, 6 Madd. 
 46 ; Breedon v. Breedon, 1 Russ. & Myl. 413. 
 (w) Dickenson v. Dickenson, 3 Bro. C. C. 19. 
 (n) Doran v. Wiltshire, 3 Swanst. 699. 
 
 ^282) See Lining v. Peyton, 2 Des. 375. 
 
 C*35)
 
 40 C)F SEEING TO THE APPLICATION 
 
 title could not be made, as there was no clause that the 
 trustees' receipts should be good discharges. The Lord 
 Chancellor said : As to the power which the trustees 
 have of giving a discharge, it is true, that when land is 
 to be sold, and a particular debt is to be paid with it, the 
 purchaser is bound to see to the application of the pur- 
 chase-money. But in cases where the application is to a 
 payment of debts generally, or to a general laying out of 
 the money, he knew of no case which lays down, or 
 (*)any reasoning in any case which goes the length of say- 
 ing that a purchaser is so bound; and therefore he con- 
 ceived that the receipt of the trustees would be a good 
 discharge in this case. 
 
 In a recent case, where the trust was to pay the money 
 amongst creditors, wlio should come in within eighteen 
 months, the estate was sold after that time had elapsed, 
 and Sir William Grant, Master of the Rolls, held, that the 
 receipt of the trustees was a good discharge(o). The deed, 
 he observed, very clearly conferred an immediate power of 
 sale, for a purpose that could not be immediately defined, 
 viz. to pay debts which could not be ascertained until 
 a future and distant period. It was impossible to contend 
 that the trustees might not have sold the whole property 
 at any time they thought fit, after the execution of the 
 deed ; and yet it could not be ascertained, until the end 
 of eighteen months, who were the persons among whom 
 the produce of the sale was to be distributed. If the sale 
 might take place at a time when the distribution could 
 not possibly be made, it must have been intended that 
 the trustees should, of themselves, be able to give a dis- 
 charge for the produce ; for the money could not be paid 
 to any other person than the trustees. It is not material 
 that the objects of the trust might have been actually 
 
 (o) Balfour v. Welland, 16 Ves. jun. 151. 
 
 (*36)
 
 OF PURCHASE MONEY. 4J 
 
 ascertained before the sale. The deed must receive its 
 construction as from the moment of its execution. Ac- 
 cording to the frame of the deed, the purchasers'were or 
 were not liable to see to the application of the money ; 
 and their liability could not depend upon any subsequent 
 event. Another ground relied upon in this case, was, that 
 the creditors were parties to the deed, and it was clearly 
 intended that the trustees should receive and apply the 
 money. 
 
 (*)10. So where the trust is to lay out the money in the 
 funds, &c. upon trusts, if the purchaser see it invested 
 according to the trust, and procure the trustees to execute 
 a declaration of trust, he is in practice considered as dis- 
 charged from the obligation of seeing to the further appli- 
 cation of the money. 
 
 This appears to have been the settled practice in Mr. 
 Booth's time ; for in answer to a question how far a pur- 
 chaser was, in a case of this nature, bound to see to the 
 application of the purchase-money, he said he was of 
 opinion, that all that would be incumbent on the pur- 
 chaser to see done in the case, would be to see that the 
 trustees did invest the purchase-money in their own 
 names, in some of the public stocks or funds, or on 
 government securities ; and in such case the purchaser 
 would not be answerable for any non-application (after 
 such investment of the money) of any monies which 
 might arise by the dividends or interest, or by any dis- 
 position of such funds, stocks or securities, it not being 
 possible that the testator should expect from any pur- 
 chaser any further degree of care or circumspection than 
 during the time that the transaction for the purchase- 
 money was carrying on ; and therefore the testator must 
 be supposed to place his sole confidence in the trustees ; 
 and this, he added, was the settled practice in such cases, 
 and he had often advised so much and no more to be 
 
 VOL. II. 6 (*37) 
 
 V
 
 A2 OF SEEING TO THE APPLICATION . 
 
 (lone ; and particularly in the case «f tlie trustees under 
 the Duchess of Marlborough's will. And in this opinion 
 Mr. Wilbraham concurred^?). 
 
 1 1 . The same rules respecting the liability of a pur- 
 chaser to see to the application of the purchase-money 
 appear to apply, whether the estate be devised or con- 
 veyed to trustees to sell for payment of debts, &-c. or 
 (*)whether it be only charged with the debts ; although 
 a difference of opinion has prevailed in the Profession on 
 this point. 
 
 In a case in Mosely(r^) it was laid down, that a pur- 
 chaser should be bound to see to the application of the 
 purchase-money where the debts were only charged on 
 the estate. 
 
 But in Elliot v. Merryman(?), the Master of the Rolls 
 decreed otherwise ; because, if the contrary rule were 
 holden, no estate could in such cases be sold, except 
 through the medium of the Court of Chancery? which 
 would be productive of the greatest inconvenience. 
 
 Lord Camden(5) appears to have been of the same 
 opinion ; and in a late case(i) Lord Eldon said, that 
 where a man, by a deed or will, charges or orders an 
 estate to be sold for payment of debts generally, and then 
 makes specific dispositions, the purchaser is not bound 
 to see to the application of the purchase-money. 
 
 This point may be considered as settled upon principle, 
 as well as authority. For although a mere charge is no 
 legal estate, but only that declaration of intention upon 
 which a court of equity will fasten, and by virtue of 
 which they will draw out of the mass going to the heir, 
 
 {p) See 2 vol. Cas. & Opin. 114. 
 
 (qr) Anon. Mose. 96 ; and see Newoll r. Ward, Neln. C'ha. Rep. 
 38. 
 
 (r) Barnard. Rep. Cha. 78 ; 2 Atk. 41 ; Ambl. 189, marg. 
 (s) See Walker v. Smalwood, Ambl. 676. 
 (/) See 6 Ves. jun. 654, n.
 
 OF PURCHASE MONEY. 43 
 
 or to Others, that quantum of interest that will be sufficient 
 for the debts(2f) ; yet it is as much a trust, as a direct 
 conveyance or devise to trustees for the same purpose : 
 the only difference is, that in the case of a charge, the 
 trust arises by the construction of equity ; whereas in 
 the case of a conveyance or devise, it is produced by the 
 express declaration of the party ; and when the trust is 
 (*)m esse, it seems wholly immaterial by what means it 
 has arisen. 
 
 And where an estate is given to a devisee, he paying 
 the debts, so that the words are sufficient to pass the fee, 
 a purchaser from the devisee cannot be affected by any 
 gift over of the estate, for the devisee has a right to sell 
 to pay the debts, and if the price of the estate is more 
 than will satisfy the debts, the remedy of the devisees 
 over is against the first devisee, and not against the pur- 
 chase r(a'). 
 
 It seems hardly necessary to remark, that where lands 
 are charged with the payment of annuities, those lands 
 will be liable in the hands of a purchaser, because it 
 was the very purpose of making the lands a fund for 
 that payment, that it should be a constant and subsisting 
 fund(i/). 
 
 So where an estate is devised, subject to existing 
 charges, the purchaser must of course see the charges 
 duly paid. 
 
 12. But if the sale or mortgage, from the circumstances 
 of the transaction, afford evidence that the money was 
 not to be applied for the debts or legacies, the purchaser 
 or mortgagee will hold liable to the charge(2;). 
 
 (m) See Bailey v. Ekins, 7 Ves. jun. 323, 
 (x) Dolton i\ Hewen, 6 Madd. 9. 
 
 {y) Elliot V. Merrymaii, Barnard. Rep. Cha. 82. See Wyuu v. 
 Williams, 5 Ves. jun. 130. 
 
 (2) Watkins v. Cheek, 2 Sun. & Slu. 199. 
 
 '*39)
 
 44 
 
 OF SEEING TO THE APPLICATION 
 
 13. In Johnson i\ Kennett(a), the estate was devised 
 to the son in fee, subject to the debts, an annuity to the 
 widow and legacies to the daughters. The son also was 
 entitled to the personal estate. Two or three years after 
 the testator's death, the son and his wife levied a fine 
 and conveyed the estate without reference to the debts 
 and legacies to uses to bar dower. The son then sold 
 the estate in lots to several purchasers. The convey- 
 ances (*)recited the will, the conveyance and fine, the 
 contract to sell, and an agreement to give to the pur- 
 chasers a bond of indemnity against the legacies. The 
 deeds did not recite that the debts were paid. In some 
 of the deeds the widow joined and released her annuity 
 pro tanto. Each purchaser had a bond of indemnity 
 against the legacies, in which no notice was taken of the 
 debts. The daughters filed a bill against the purchasers 
 and the assignee of the son. The bill stated that the 
 son had paid the debts, and that the legacies were 
 unpaid. The answers did not deny that the debts 
 had been paid, and stated the belief of the purchasers 
 that the legacies were unpaid. It was held that the 
 estates were still charged with the legacies in the hands 
 of the purchasers, for they dealt with the son, not as 
 a trustee for the widow and daughters but as the owner 
 of the estate, and they were aware that the legacies were 
 unpaid, and did not represent that they were told or 
 supposed that the debts were unpaid. 
 
 14. These are the distinctions which, according to the 
 books, appear to exist in regard to the liability of a pur- 
 chaser to see to the application of money arising by sale 
 of estates conveyed or devised to trustees upon trust to 
 sell ; but the reader must be apprised, that some gentle- 
 men are of opinion, that a purchaser is in no case bound 
 to see to the application of purchase-money, lohere there 
 
 (a) V. C. 10 Dec. 1833, MS. 
 (*40)
 
 OF PURCHASE MONEY. 
 
 45 
 
 is a hand appointed to receive the money. And it appears 
 that Lord Kenyon, when Master of the Rolls, inclined 
 strongly to the opinion, although he made no decision, 
 that trustees having the power to sell, they must have 
 the power incident to the character, viz. the power to 
 give a discharge(6). 
 
 And Sir William Grant observed, that he thought the 
 (*)doctrine upon this point had been carried farther than 
 any sound equitable principle would warrant. Where, he 
 added, the act is a breach of duty in the trustee, it is very 
 fit that those who deal with him should be affected by an 
 act tending to defeat the trust of which they have notice ; 
 but where the sale is made by the trustee in performance 
 of his duty, it seems extraordinary that he should not be 
 able to do what one should think incidental to the right 
 exercise of his power, that is, to give a valid discharge 
 for the purchase-money. But it was not necessary to 
 determine that in the case before His Honor(c). 
 
 Of those who hold that a purchaser is only liable to 
 see to the application of the money where there is not 
 a hand appointed to receive the money, and the trusts of 
 the money are defined, Mr. Powell is the only one whose 
 reasons are before the Profession (c^). The whole of 
 Mr. Powell's argument(I) appears to have been suggested 
 to him, and indeed depends on the case of Cuthbert v. 
 Baker. For throughout the many cases which have been 
 referred to in this chapter, the decisions have invariably 
 been pronounced on the distinction between a limited 
 and a general trust ; and in no case has the appointment 
 of a hand to receive the money been considered as affect- 
 
 (6) See 4 Ves.jun. 99. 
 
 (c) See 16 Ves. jun. 156. 
 
 (d) See 1 Mortg. 312-330, 4th edition. 
 
 (I) See the 3d edition of Powell on Mortgages, where the point is 
 not noticed. 
 
 (*41)
 
 46 
 
 OF SEEING TO THE APPLICATION 
 
 ing the question, any further than that it at one time 
 seems to have been thought, that in every case of a mere 
 charge, the purchaser was bound to see to the application 
 of the money. That this was always deemed the true 
 distinction, is evinced by manuscript and printed opinions 
 to that effect, of all the most leading characters in the 
 Profession of the last and present century. So Lord 
 (*)Eldon, in condemning the doctrine advanced in Omer- 
 od V. Hardman(e), did not say it was wrong because there 
 was a hand appointed to receive the money (which was 
 the fact), but because the first trust was for payment of 
 debts generally. 
 
 Mr. Powell, however, was not singular in his construc- 
 tion of the decree in the case of Cuthbert v. Baker. It is 
 well known by the Profession, that Lord Redesdale, who 
 was counsel for Baker, the purchaser, considered the 
 decision in the same light. 
 
 The case is thus stated by Mr. Powell : — A. made his 
 Wi\\(f), and thereby directed that all his personal estate 
 (except as therein excepted) should be applied, as far as 
 the same would extend, in payment of debts, legacies, 
 and funeral expenses, and of all annuities by him granted ; 
 and if such personal estate should not be sufficient for 
 those purposes, then it was his further will and desire, 
 and he did direct, that the deficiency, whatever it might 
 be, should be paid and made good out of his real estate 
 (except a part therein mentioned, which he did not intend 
 to make subject thereto), and which real estates he charged 
 with the payment of such deficiency, to whose hands so- 
 ever the same came. And so subject and exempt, he 
 gave, devised, &c. all his real and personal estate in the 
 following manner : certain parts of his estate to his wife 
 
 (e) See 6 Ves. jun. 654, n. et supra, n. (1) to s. 4. 
 (/) Mr. P. refers to 4th July 1790, Reg. Lib. 4, 441 ; the correct 
 reference is Lib. Beg. A. 1790, fo. 442. 
 
 (*42)
 
 OF PURCHASE MONEY. 
 
 47 
 
 in fee ; and as to the manors, messuages, &c. not given 
 to his wife in fee, he devised them to his wife for life ; 
 and, after her decease, he gave the same to trustees, in 
 trust to sell and to divide and to distribute the money 
 which should arise by such sale between and amongst 
 such child or children of A. B., on the body of his then 
 (*)wife begotten ; and such children of C. Z).(I)as should 
 be living when the devise to the trustees should take 
 effect, equally share and share alike, to take per capita, 
 and not per stirpes : if but one such child, the estate to 
 be transferred to him, and not to be sold. The wife died. 
 One trustee died in her life-time. The surviving trustee 
 sold the estate by auction. The personal estate was suf- 
 ficient to discharge the debts : the claimants under the 
 devise to children were seven children of A. B., and six 
 children of C. D. (II), who were entitled to the purchase- 
 money in equal shares. One of the children of C. D. was 
 in the East Indies, and two were infants. The purchaser 
 refused to complete his purchase, objecting thereto on 
 the ground, that there being no proviso in the will to ex- 
 onerate the purchaser from seeing to the application of 
 the money, the purchaser was bound to know or find out 
 what children of the persons in that behalf named were 
 living at the testator's wife's death ; for that such chil- 
 dren ought individually to execute the conveyance, and 
 give releases for their respective claims ; and that one 
 being in the East Indies, and two being infants, could 
 not join in such conveyance. But the decree was, that 
 the contract should be carried into execution, that the 
 infimts' shares of the purchase-money should be paid to 
 the Accountant-general, and that the remainder of the 
 })urchase-money should be paid to the trustee. The de- 
 
 (I) This is mis-stated, for the money was given to such of the children 
 of three persons as sliould be living at (he time when the devise to the 
 trustees should take eflect. 
 
 (II) This is inaccurate. There were seventeen children in all. 
 
 (*43)
 
 48 
 
 OF SEEING TO THE APPLICATION 
 
 1 
 
 cree proceeded to direct that all proper parties should 
 join in the proper conveyances. 
 
 Mr. Powell observes, that this decision, though not 
 final, as it still left room for an application to the Court 
 to determine who might be proper parties to the con- 
 vejance(*) appeared to him to be conclusive on the ques- 
 tion, whether the persons beneficially entitled are neces- 
 sary parties ; because there could be no ground to consider 
 those persons as necessary parties, unless it were to 
 discharge the purchaser : but there seemed to him to be 
 no power in the Court to compel a person beneficially 
 interested in money to arise by sale of land, to discharge 
 that land, unless it were upon paying or securing the 
 money to him. But the Court, by directing the payment 
 to the trustee, had none that which rendered a direction 
 to pay to the cestui que trust impossible. 
 
 It will be seen that Mr. Powell's argument is entirely 
 founded on the order to pay the remainder of the pur- 
 chase-money to the trustee, and this ground wholly fails 
 him ; for all the cestuis que trust ivere plaintiffs, and the 
 prayer of the bill was, that the infants^ shares might he 
 invested, and that the remainder of the purchase money 
 might be paid to the trustee. 
 
 It is not noticed in the foregoing statement of the case, 
 that no costs were given ; but the fact is, that the pur- 
 chaser was refused his costs, and that circumstance may 
 perhaps induce a conclusion, that the construction put 
 upon the case by Mr. Powell is correct. 
 
 But it is conceived, that there is a ground upon which 
 the decision may be supported without impeaching the 
 settled doctrine on this subject. The trust was for such 
 of the children of three persons as should be living when 
 the estate should fall into possession, and it was strongly- 
 insisted by the bill, and, it is apprehended, with great 
 reason, that the cestuis que trust were in regard to the 
 
 (*44)
 
 OF PURCFIASE MONEY'. 
 
 49 
 
 purchaser undefined ; and lie was not bound to ascertain 
 or inquire ho^v many there were, and who they were. 
 The facts of the case were sucH as to tempt a Judge to 
 put that construction on the trust ; there were seventeen 
 children, two of whom were infants, and another was in 
 (*)the East Indies. It should seem, therefore, that there 
 is a solid principle to which Lord Thurlow's decision can 
 be referred, and, consequently, a purchaser can scarcely 
 be advised to incur the risk of paying money to a trustee, 
 on the authority of this case, in opposition to the former 
 decisions. Perhaps another ground remains upon which 
 the decision might have been made. All the cestuis que 
 trust of age, and in the kingdom, offered, previously to 
 the commencement of the suit, to give receipts for their 
 shares : the receipt of the trustee would certainly have 
 been a sufficient discharge for the shares of the infants, 
 and also, as it is conceived, for the share of the cestui que 
 trust, who was abroad. And in this view of the case the 
 purchaser was clearly liable to the costs. It were difficult 
 to maintain, that the absence of a cestui que trust in a 
 foreign country shall, in a case of this nature, impede the 
 sale of the estate. Lord Thurlow's judgment in this case 
 would be a very desirable present to the Profession. In 
 a case which came before the same Judge a few years 
 before that of Cuthbert v. Baker, and -which I learn from 
 a gentleman who has seen the papers relating to the estate, 
 is correctly reported, the estate was subjected to the pay- 
 ment of debts generally ; and his Lordship said, that the 
 purchaser was a mere stranger, and was not bound to 
 look to the application ; ivhere the estate is to be sold, and 
 a specific sum, as 51. , to be paid to A., the purchaser must 
 see to the application ; but where it is to be sold generally, 
 he is not(g). 
 
 In the case of Currer t'. Walkley, reported in Mr. 
 
 (g) Smith r. Guyon, 1783, 1 Bro. C. C. 116. 
 
 VOL. J I. 7 (*45)
 
 ^Q OF SEEING TO THE APPLICATION 
 
 Dickens' second volunie(/t), which was also before Lord 
 Thurlow, it is stated that the testator had devised estates, 
 subject to particular charges : he afterwards entered into 
 a contract for sale of a part of the estate, and the pur- 
 chaser (*)paid the sum of 600/. as a deposit. The bill 
 was for an account of what was due to the plaintiff in re- 
 spect of his charge, and that the purchaser might pay out 
 of the remainder of his purchase-money what remained 
 due to the plaintiff. Lord Thurlow is reported to have 
 said, that if an estate is devised to trustees to sell, and 
 the testator afterwards contracts for the sale of the estate, 
 it is enough for the purchaser to pay the purchase-money 
 into the hands of the trustees, to apply it, as it doth not 
 lie with him to see it applied ; but if the estate be devis- 
 ed, subject to particular charges, it is incumbent on him 
 to see it applied in payment of those particular charges. 
 
 This case seemed to apply to the point under discus- 
 sion ; but no reliance could be placed upon it, as it was 
 to be inferred from the report, that Lord Thurlow held, 
 that a devise of an estate was not revoked in equity by 
 a subsequent contract for sale of it — a doctrine which it 
 was difficult to suppose could have fallen from so great a 
 Judge. 
 
 The case is stated in the Registrar's book(i), by the 
 name of Comer v. Walkley, and Mr. Dickens' report of 
 it is a complete mis-statement. The estate was originally 
 devised to trustees upon trust, to sell and pay debts gene- 
 rally. The estate was subject to an annuity at the death 
 of the testator. The trustee sold a part of the estate for 
 720/., 600/. was left in the purchaser's hand as an in- 
 demnity against the annuity. The purchaser afterwards 
 paid 250/., part of the 600/., to the trustee. By several 
 conveyances, &c. the estate purchased became again 
 
 (A) 2 Dick. 649. 
 
 (i) Reg. Lib. A. 1784, fol. 625. 
 
 (*46)
 
 OF KTRCHASE MONEY. 5| 
 
 vested in trustees upon trust, to sell for payment of debts 
 generally. These trustees sold the estate to Charles 
 Whittard, who objected to complete the contract without 
 the concurrence of the person entitled to the residue, then 
 (*)unpaid, of the 600/. After a great lapse of time the 
 person entitled to the residue of the 600/. filed a bill 
 against Whittard and others for payment of it ; and Whit- 
 tard filed another bill for a specific performance, which 
 was accordingly decreed ; and the proper accounts were 
 directed to be taken in the first cause. Whittard's costs 
 in both causes were allowed to him. The decision, there- 
 fore, appears to have been, that the 600/. was a lien on 
 the land. The latter part of Lord Thurlow's judgment, 
 reported by Dickens, clearly referred to the annuity, 
 which was a subsisting charge on the estate at the testa- 
 tor's death. And adverting to the circumstances of the 
 case, the first part of" the judgment may, perhaps, be read 
 thus : If an estate is devised to trustees to sell, and the 
 trustees afterwards contract for the sale of the estate, it is 
 enough for he purchaser to pay the purchase-money into 
 the hands of the trustees to apply it, as it doth not lie 
 with him to see it applied. Now this, as corrected, seems 
 in favor of the opinion, that where a hand is appointed 
 to receive the money, a purcjiaser is not bound to see 
 to the application of the purchase-money ; but it should 
 not be forgotten, that this observation was made in a case 
 where the trust was for payment of debts generally. 
 
 15. Where the trust is to raise so much money as the 
 personal estate shall prove deficient in paying the debts, 
 or debts and legacies, it seems formerly to have been 
 doubted whether the purchaser was not bound to ascer- 
 tain the deficiency. Mr. Fearne thought a purchaser was 
 bound to do so(A;). But the opinion of the Profession is 
 
 {k) Fearne's Poslhuina, p. 121.
 
 52 
 
 OF SEEING TO THE APPLICATION 
 
 certainly otheru ise(/). Indeed, a direction that the per- 
 sonal estate shall be first applied, only expresses the rule 
 of equity, where, as in a case of this nature, no intention 
 appears to exonerate the personalty from the payment of 
 (*)the debts ; and, therefore, such a direction cannot be 
 deemed material. 
 
 16. Where a mere power is given to trustees to sell, for 
 the purpose of raising as much money as the personal 
 estate shall prove deficient in paying the debts, or debts 
 and legacies, it seems that unless the personal estate be 
 actually deficient, the power does not arise, and conse- 
 quently cannot be duly executed(283). This was express- 
 ly decided in the case of Dike v. Ricks(?w), where, in a 
 case of this nature, it was determined by Jones, Croke and 
 Barkeley, Justices, unanimously, that the condition \^as a 
 precedent condition, and that the performance of it ought 
 to be sufficiently averred, otherwise the power would not 
 authorize a sale ; and that the amount of the debts, and 
 the value of the personal estate, ought to be show^n, so 
 that the court might judge whether the condition was per- 
 formed or not ; and also that so much only of the estate 
 could be sold as was sufficient for payment of the debts. 
 And the case of Culpepper v. Aston(w), also appears to 
 be an authority, that in such a case a purchaser is bound 
 to ascertain the deficiency ; for in that case the will 
 seems to have given a mere poiver(o) to the executors to 
 raise as much money as the personal estate should fall 
 short in paying the debts. . The will was revoked pro 
 
 {I) See the 12th section of Mr. Butler's n.(l) to Co. Litt. 209 b. 
 (m) Cro. Car. 335 ; Wm. Jones, 327 ; 1 Ro. Abr. 329, pi. 9 ; 3 
 Vin. Abr. 419, pi. 9. 
 
 (n) See 2 Cha. Ca. 221. 
 (o) 2 Cha. Ca. 115. 
 
 (283) See Welman v. Lawrence, 15 Mass. Rep. 326. Seymour v. 
 Bull, 3 Day, 388. Williams v. Peyton, 4 Wheat, 77. 
 (*48)
 
 OF PURCHASE MONEY. 53 
 
 tanto by a subsequent conveyance creating a direct trust 
 to sell and pay debts, under which it seems the purchaser 
 bought ; and therefore the point did not call for a deci- 
 sion. But it was resolved, that by the trust (that is, 
 power,) in the will to sell, the purciiaser did purchase at 
 his own peril, if the personal estate received were suffi- 
 cient ; but that if the trust were as in the deed, the pur- 
 chaser was safe. 
 
 (*)The reader must be aware, that as the power is not 
 well executed, unless there be a deficiency, a purchaser 
 must, at his peri!, ascertain the fact, notwithstanding that 
 the trust be for payment of debts generally ; or being for 
 payment of particular debts or legacies, the common clause, 
 that the trustee's receipts shall be sufficient discharges, be 
 inserted in the instrument creating the trust. 
 
 Wherever, therefore, a power of this nature is given, 
 and even where a trust for such purposes is raised, it 
 seems advisable, as Mr. Butler remarks, to extend this 
 clause a degree farther, by expressly discharging the pur- 
 chaser or mortgagee from the obligation of inquiring, 
 whether the personal estate has been got in and applied ; 
 and by expressly authorising the trustees to raise any 
 money they may think proper by sale or mortgage, 
 though the personal estate be not actually got in or ap- 
 plied. For it frequently happens, that the getting in of 
 the personal estate is attended with great delay and diffi- 
 culty; during which the real estate cannot perhaps be 
 resorted to. This will be obviated effectually by insert- 
 ing a clause to the above effect. It should, however, be 
 accompanied with a further direction, that so much of the 
 personal estate, and the money raised under the trust, as 
 shall remain after answering the purposes of the trust, 
 shall be laid out in land, to be settled on the devisees of 
 the real estates(o). 
 
 (o) Butler's n. (1) to Co. Litt. 290. b. 
 
 (*49,
 
 54 
 
 OF SEEING TO THE APPLICATION 
 
 17. Where a purchaser is bound to see the money 
 applied according to the trust, and the trust is for pay- 
 ment of debts, or legacies, he must see the money actually 
 paid to the creditors or legatees. 
 
 In cases of this nature, therefore, each creditor or 
 legatee, upon receiving his money, should give as many 
 receipts as there are purchasers, so that each purchaser 
 (*)may have one. Or, if the creditors or legatees are but 
 few, they may be made parties to the cnoveyances. 
 
 Another mode by which the purchasers may be secured 
 is, an assignment by all the creditors and legatees of 
 their debts and legacies to a trustee, with a declaration 
 that his receipts shall be sufficient discharges ; and then 
 the trustee can be made a party to the several con- 
 veyances. 
 
 Sometimes a bill is filed for carrying the agreement 
 into execution, when the purchase-money is of course 
 directed to be paid into court ; and this is the surest 
 mode, because the money will not be paid out of court 
 without the knowledge of the purchaser. 
 
 18. If the names of the trustees be inserted in the 
 usual clause, that the receipts of the trustees shall be 
 discharges, every trustee who has accepted the trust must 
 join in the receipt for the purchase-money, although he 
 may have released the estate to the other trustees(p) ; 
 because, notwithstanding that he release the legal estate 
 to his co-trustees, he cannot delegate the personal trust 
 and confidence reposed in him ; for the rule is, delegatus 
 non potest delegare. 
 
 To obviate this difficulty, which frequently occurs, 
 it might, perhaps, be advisable (instead of naming the 
 trustees in the clause) to say, that the receipts " of the 
 trustees or trustee, for the time being, acting in the execu- 
 
 {p) Crewe v. Dicken, 4 Ves. jun. 97. See post. Small v. Mar- 
 wood, 9 Barn. & Cress. 307 ; 4 Maun. & llyl. 181. 
 (*50)
 
 OF PURCHASE MONEY. 
 
 55 
 
 tion of the trusts hereby created," shall be sufficient 
 discharges. This would probably render it unnecessary 
 for a trustee who had released the estate to join in any 
 receipt : — there could not be the slightest ground to con- 
 tend, that any personal trust or coniidence was given to 
 the trustees named in the instrument creating the trust ; 
 and therefore the receipt of the trustees acting in the 
 (*)trusts, for the time being, would satisfy as well the 
 words as the spirit of the clause(9). 
 
 19. But as one man cannot impose a trust on another 
 against his consent, a trustee who has refused to accept 
 the trust, and actually renounced, need not join in any 
 receipts ; in such cases the receipts of the other trustees 
 \'\ill be sufficient discharges(r). And it seems, that 
 where there is a release instead of a disclaimer, yet if 
 the operation of the act is disclaimer the release must 
 be considered as a disclaimer(.s). This of course cannot 
 apply to any case where the trustee has acted in execu- 
 tion of the trusts, for the estate is then vested in him, and 
 it is too late to disclaim. 
 
 20. Where an estate is devised or conveyed to trustees 
 to sell for payment of debts generally, without a clause 
 that their receipts shall be discharges, and they convey 
 to a third person, ^or the purposes of the trust, sales made 
 by him are said to be as effectual as sales made by the 
 trustees themselves, and his receipt is equally a discharge 
 to a purchase r(/). 
 
 21. If an estate is vested in trustees to sell, with power 
 to give receipts, but no power is added to appoint 
 new trustees, and upon a bill filed, the Court appoints 
 
 iq) See Co. Lilt. 113 a. 
 
 (r) See Sir William Smith v. Wheeler, 1 Ventr. 128 ; Hawkins v. 
 Kemp, 3 East, 410; Adams v. Taunton, 5 Madd. 436. 
 
 (s) Nicloson v. Wordsworth, 2 Swanst. 366. 
 
 (t) Hardwicker. Mynd, 1 Anstr. 109. See Ld. Braybrokev. Inskip, 
 8 Ves. jun. 417 ; sed qu. 
 
 (*61)
 
 ^Q OF SEEING TO THE APPLICATION. 
 
 new trustees, they can give a valid discharge ; for the 
 effect of the conveyance to the new trustees is to bind the 
 legal estate, and the decree of the Court binds the equity ; 
 so that the new trustees have the same power to give 
 receipts as the original trustees \iad(ii). 
 
 (*)SECTION II. 11 
 
 Of this Liability, with reference to Leasehold Estates. 
 
 1. We have already seen, that however leasehold 
 estates may be bequeathed, they must go to the execu- 
 tors, to be applied, in the first place, in a due course of 
 administration, which is tantamount to a bequest for 
 payment of debts generally. And, therefore, in analogy 
 to the decisions upon devises of real estates for a similar 
 purpose, it is incontrovertibly settled, that a purchaser of 
 personalty shall in no case be bound to see to the appli- 
 cation of the purchase-money where he purchases bona 
 fide, and without notice that there are no debts(?<;). 
 
 This principle was adhered to in the case of Humble 
 V. Bill(a;), before Sir Nathan Wright, where a man be- 
 queathed a specific part of his personalty upon trust to 
 raise a sum of money for his daughter, and the executors 
 mortgaged it, pretending want of assets. The decision 
 
 («) Drayson v. Pocock, 4 Sim. 283. 
 
 (to) Elliot V. Merryman, Barnard. Rep. Cha. 78 ; 2 Atk. 41. See 
 Watts V. Kancy, Toth. 141 ; S. C. ibid. 227, by the name of Mutts v. 
 Kancie ; and Nurton v. Nurton, ibid. 
 
 (x) 2 Vern. 444 ; 1 Eq. Ca. Abr. 358, pi. 4. 
 
 (*52)
 
 OF PURCHASE MONEY- 
 
 57 
 
 was, however, reversed in the House of Lords(7/) ; but 
 the reversal is generally supposed to have proceeded 
 from proof of fraud, and has not been attended to in 
 subsequent cases. 
 
 Thus, in Ewer v. Corbet(2^), it was expressly holden, 
 that a term being bequeathed to A., did not prevent the 
 executors from selling it ; and that notice of the devise 
 was nothing, as every person buying of an executor 
 necessarily must have such notice. And the Master of 
 (*)the Rolls said, he remembered it to have been once 
 ruled, that an executor could not make agood title to a term 
 to a purchaser, and that was in the case of Bill v. Humble ; 
 but since that he took it to have been resolved, and with 
 great reason, that an executor, where there were debts, 
 might sell a term ; and the devisee of the term had no 
 other remedy but against the executor to recover the value 
 thereof, if there were sufficient assets for the payment of 
 debts. 
 
 2. This doctrine has been carried so far, that a sale in 
 satisfaction of a private debt of the executor has been 
 holden good(«)(284). 
 
 But in the first authority on this head(6), it appears 
 that the testator had been dead two years before the as- 
 signment, although that circumstance is not mentioned in 
 the report(c) ; and it might, therefore, be supposed, that 
 the executor might in that case have entitled himself to 
 
 {if) See Savage v. Humble, 1 Bro. P. C. 71 ; and see 17 Ves. jun. 
 160, 161. 
 
 {z) 2 P. Wms. 148 ; and see Burling v. Stonnard, 2 P. Wrns. 150 ; 
 and Andrew v. Yv'rigley, 4 Bro. C. C. 137; and Dickenson v. Lockyer, 
 4 Ves. jun. 36. 
 
 («) Nugent V. Gifford, 1 Atk. 463 ; and Mead v. Lord Orrery, 3 
 Atk. 235; and see Ithell u. Beane, 1 Ves. 215. 
 
 (/j) Nugent V. Gifford. 
 
 (c) See 4 Bro. C. C. 13G. 
 
 (284) See Robertson v. Ervell, 3 Munf. 1. 
 
 VOL. II. 8 (*63)
 
 58 O*' SEEING TO THE APPLICATION 
 
 the term, on account of advances made by him in his 
 trust(c?) ; and it also appears that he was sole residuary 
 legatee(e). On the former ground alone, the decision 
 perhaps cannot be supported ; for Lord Thurlow decided 
 differently in a case nearly similar, although between three 
 and four years had elapsed from the death of the testator 
 to the transaction^/). 
 
 With respect to the second authority on this head(^), 
 Lord Kenyon expressly dissented from it in the case of 
 Bonney v. Ridgard(/t) ; and in a late case(z), where an 
 (*)executor, shortly after the decease of his testatrix, 
 transferred stock, part of her estate, to his bankers, to 
 secure a debt due from him, and future advances, the 
 bankers swore that they did not know or suspect, that the 
 funds were not the property of the executor, either as ex- 
 ecutor or devisee ; and it appeared in evidence, that he 
 represented himself as absolutely entitled to them, under 
 the will, subject to a trifling annuity, and a few small 
 legacies ; although no fraud was proved, yet as gross neg- 
 ligence appeared in the bankers not inspecting the will, the 
 funds were holden to be liable to the legacies given by 
 the will. 
 
 It seems clear, therefore, that an executor cannot now 
 dispose of his testator's property, as a security for, or in 
 payment or satisfaction of his own debts. 
 
 In a late case, however, where a considerable time 
 
 (d) See 7 Ves. jun. 107. 
 
 (c) See 17 Yes. jun. 163. 
 
 (/) Scott r. Tyler, 2 Dick. 724; 2 Bro. C. C. 431 ; and see 17 
 Ves. jun. 164. 
 
 (g) Meade v. Lord Orrery. 
 
 {h) 2 Bro. C. C. 433 ; 4 Bro. C. C. 130; 7 Ves. jun. 167, cited ; 
 and see Andrew v. Wrigley, 4 Bro. C. C. 125. 
 
 (t) Hill V. Simpson, 7 Ves. jun. 152 ; and see Lowther v. Lowther, 
 13 Ves. jun. 65; 17 Ves. jun. 169; and Cubbidge r. Boatwright, 1 
 Russ. 549. 
 
 (*54)
 
 OF PURCHASE MONEY. ^g 
 
 after the death of the testator, part of the assets were 
 pledged with bankers as a security for monies advanced 
 at the time, and future advances to the two acting execu- 
 tors ; a bill filed bj co-executors, who had not acted in 
 the affairs of the testator, for delivery up of the assets, 
 was dismissed, but without deciding what the equity 
 ^^'ould be if the title was nothing more than deposit, and 
 the bill had been filed by a legatee(A:). 
 
 3. If the executor sell at an undervalue, or to one who 
 has notice that there are no debts, or that all the debts 
 are paid(/), or if there be any express or implied fraud or 
 collusion between the executor and purchaser, the sale 
 cannot be supported(m). 
 
 (*)Fraud and covin will vitiate any transaction, and turn 
 it to a mere color. If one concerts with an executor, 
 or legatee, by obtaining the testator's effects at a nomi- 
 nal price, or at a fraudulent undervalue, or by^ applying 
 the real value to the purchase of other subjects for his 
 own behoof, or in extinguishing the private debt of the 
 executor, or in any other manner (which Lord Eldon has 
 said, are very material words)(n), contrary to the duty 
 of office of executor, such concert will involve the seem- 
 ing purchaser, and make him liable for the full value(o). 
 
 4. But if the legatee permit a long time to elapse with- 
 out asserting his claim, and there are several mesne pur- 
 
 {k) M'Leod V. Drummond, 14 Yes. jun. 353 ; 17 Ves. jun. 162 ; 
 and see Farr v. Newman, 4 Term Rep. 621 ; Keane v. Roberts, 4 
 Madd. 332. 
 
 (/) See Ewer v. Corbet, 2 P. VVms. 148. 
 
 («i) Crane v. Drake, 2 Vern. 616 ; Yin. 43, pi. 13 ; 18 Yin. 121, 
 pi. 11, side notes; Bonnej v. Ridgard, 2 Bro. C. C. 438, cited ; Nu- 
 gent r. Gifford, 1 Atk. 463; and see Gilb. Eq. Rep. 113 ; Free. Cha. 
 434 ; and Whale v. Booth, 4 Term Rep. 625, n. 
 
 (n) 17 Yes. jun. 167. 
 
 (o) Per Lord Thurlow, 2 Dick. 725 ; and see 1 Burr. 475. 
 
 (*5f)
 
 gQ OF SEEING TO THE APPLICATION 
 
 chasers, equity will not set aside the sale, although there 
 are suspicious circumstances of fraud(/;). 
 
 5. And although the legatee has only a contingent in- 
 terest, yet that will be no excuse for delay(9') ; because 
 he has such an interest as will entitle him to know what 
 debts the testator owed, and what part of his estate has 
 been applied to the payment of them. And in Howorth 
 V. Powell, it was laid down by Lord Keeper Henley, that 
 a party having a claim in remainder to an estate, though 
 not to the possession, if he sees the possession wrongfully 
 usurped, ought to file his bill for relief before his right 
 to possession accrues : for otherwise he stands by and 
 countenances the possessor in his exercise of acts of 
 ownership(r). 
 
 6. It remains to observe, that Lord Hardwicke 
 thought(5) the reversal of the case of Humble v. Bill(i) 
 might be proper, because the charge was upon a particu- 
 lar (*)part of the estate : his Lordship not, however, 
 meaning to impugn the general doctrine, which he fre- 
 quently admitted, and indeed carried farther than any 
 other Judge. 
 
 This distinction Lord Hardwicke appears to have been 
 inclined to follow in a case(M) where a specific legatee bf 
 a mortgage brought a bill to foreclose against the repre- 
 sentative of the mortgagor, who pleaded an account set- 
 tled between him and the executor of the mortgagee, and 
 
 ip) Bonney r. Ridgard, 2 Bro. C. C. 438 ; 17 Ves. jun. 97, cited ; 
 and see 17 Ves. jun. 165. 
 
 (q) Andrew r. Wrigley, 4 Bro. C. C. 125. 
 
 (r) Ch. T. T. 1758, MS. ; 1 Eden, 351, nom. Howarth v. Deem. 
 
 (5) See Meadr. Lord Orrery, 3 Atk. 241 ; and see 17 Ves. jun. 161, 
 162. 
 
 {!) Sup7-a, p. 52. 
 
 («) Langley v. Earl of Oxford, Ambl. 17 ; and see Elliott v. Mer- 
 ryman, Barnard. Ch. Rep. 78 ; and Andrew v. Wrigley, 4 Bro. C. C. 
 125. 
 
 (*o6) 

 
 OF PURCHASE MONEY. 
 
 61 
 
 a release. For he thought the devisee had a specific lien 
 on the estate, and as the mortgagor had notice of the 
 bequest he was bound by it. And he was inclined to 
 over-rule the plea of the release ; but the case of Ewer v, 
 Corbet(a:) being cited, it was ordered to stand for an 
 answer, with liberty to except. The case was afterwards 
 debated on several days, and the Chancellor ultimately 
 determined, that the plaintiff had not equity sufficient to 
 support his bill, and accordingly dismissed it, but without 
 costs(?/). 
 
 Upon principle as well as upon the authority of 
 Langley and Lord Oxford, the better opinion clearly is, 
 that a particular chattel specifically bequeathed may be 
 purchased from an executor, but certainly, in most cases, 
 such a purchase could not be recommended without the 
 concurrence of the legatee, because, independently of 
 the general question, the executor may have assented to 
 the bequest(2). 
 
 7. But of course this question cannot arise where the 
 specific legatee of the chattel is*also executor(a). 
 
 (x) Supi-a, p. 52. 
 
 («/) See Reg. Lib. B. 1747, fol. 300. 
 
 (z) See Thomlinson v. Smith, Rep. temp. Fincb, 378. 
 
 {a) Taylor v. Hawkins, 8 Yes. jun. 209.
 
 [ 62] 
 
 ^CHAPTER XII. 
 
 OF THE vendor's LIEN ON THE ESTATE SOLD FOR 
 THE PURCHASE MONEY, IF NOT PAID. 
 
 I. Where a vendor delivers possession of an estate to 
 a purchaser, without receiving the purchase-money, equi- 
 ty, whether the estate be(6)(I) or be not(c)(285) convey- 
 ed, and although there was not any special agreement for 
 that purpose, and whether the estate be freehold or copy- 
 hold((/), gives the vendor a lien on the laud for the mon- 
 ey ;(286) so, on the other hand, if the vendor cannot 
 
 (6) Chapman v. Tanner, 1 Vern. 267 ; PoUexfen v. Moore, 3 Atk. 
 272 ; and see 1 Bro. C. C. 302, 424; and 6 A'es. jun. 483 ; Mack- 
 reth r. Symmons, 15 Ves. jun. 329. 
 
 (c) Smith V. Hibbard, 2 Dick. 730 ; Charles v. Andrews, 9 Mod. 
 152; Topham r. Constantine, 1 Taml. 135. 
 
 {d) Winter v. Ld. Anson, 3 Russ. 488. 
 
 (I) But note, that in Chapman v. Tanner (see Anibl. 726 ; 6 Ves. 
 jun. 757,) and Pollexfen v. Moore, there were special agreements that 
 the vendor should keep the writings. Indeed, in the latter case, posses- 
 sion had not been delivered. See Mr. Sanders's note to the case in 
 his edition of Atkins. 
 
 (285) See M'Tears Les. v. Buttorf, 4 Yeates, 300. Cole v. Scotl, 
 2 Wash. 141. 
 
 (286) See Garson v. Green, 1 Johns. Ch'. Rep. 308. Gilman v. 
 Broivn, 1 Mason's Rep. 192. S. C. 4 Wheat. 255. and see note in p. 
 192. Irvine v. Campbell, 6 Binn. 118. Williams \. Price, 5 Munf. 
 Rep. 607. Stouffers Les. v. Coleman, 1 Yeates, 393. fVliite v. Cas- 
 anave, 1 Har. &. Johns. 106. Ridgely v. Carey, 4 Har. M'Heu. 167. 
 
 (*67)
 
 OF THE VENDOR'S UEN, &c. gg 
 
 make a title, and the purchaser has paid any part of the 
 purchase-money, it seems that he has a lien for it on the 
 estate, although he may have taken a distinct security for 
 the money advanced(e)(II)(287). 
 
 And even where the agreement itself provides for the 
 security of the purchase-money, by a bond to remain at 
 interest during the purchaser's life, the seller will not lose 
 (*)his lien. The case was held not to be distinguishable 
 from the common case of an agreement, made after the 
 written agreement, to take a bond(y). But this point, 
 upon the case again coming on, was decided the other 
 way, and the lien-^vas held not to exist(g^). Upon appeal, 
 the Lord Chancellor reversed the latter decision(A), and 
 from his decision an appeal was lodged in the House of 
 Lords, but it has since been withdrawn. 
 
 Upon the authority of this case, Clarke v. Royle was 
 decided (/). There the estate was conveyed in consider- 
 ation of the purchaser's covenants, and he covenanted to 
 pay an annuity to the seller for his life ; and in case he 
 (the purchaser) married, to pay 3000/. to certain per- 
 sons, in such manner as the seller should think fit ; and 
 it was held that the purchaser had no lien for the an- 
 
 (e) Laconr. Mertins,3 Atk. 1. See Oxenham r. Esdaile, 2 You. & 
 Jerv. 493, 3 You. & Jerv. 262. 
 
 (/) Winter v. Lord Anson, V. C. 27 Nov. 182 1, MS. 
 ig) 1 Sim. & Stu. 434. 
 [h) 3 Russ. 488. 
 (t) 3 Sim. 499. 
 
 (II) As to chattels capable of delivery, as timber felled, see ex parte 
 Gvvyne, 12 Ves. jun. 379. 
 
 Hatcher v. Hatcher, 1 Rand. 63. Cox v. Femvick, 3 Bibb, 183. Ken- 
 nedtj v. Woolfolk, 3 Hayw. 197. See contra, Wragg v. Comptroller 
 General, 2 Des. 509. 
 
 (287) So, where the contract of sale is dissolved, the vendee has a 
 lien on the land, for the purchase money, and interest, and also for the 
 value of improvements. Griffith v. Depeiv, 3 Marsh. 179.
 
 64 
 
 OF THE VENDOR'S LIEN FOR 
 
 nuity, and that there was none for the 3,000/. The Vice- 
 Chancellor said, that it appeared to him that Lord Eldon, 
 in Mackreth v. Synimons, expressly over-ruled the deci- 
 sion in Tardiffe v. Scrugan. Besides, the case now 
 before him was not similar to Tardiffe v. Scrugan, for in 
 that case there was simply a bond given for the annuity ; 
 but here the parties expressly recite, that A. had agreed 
 to convey the estates to B., in consideration of his enter- 
 ing into the covenant for payment of the annuity, and in 
 consideration of his entering into the other covenant 
 thereinafter contained. So that the release states dis- 
 tinctly the two circumstances that form the consideration ; 
 and then it is witnessed, that in consideration of the 
 covenants of B., in the indenture contained, A, conveys 
 the premises to him. And then it is further witnessed, 
 that in pursuance of the agreement on the part of B. for 
 entering into such covenants as aforesaid, &c. So that 
 (*)the deed plainly marks out that the consideration on 
 the one side was the conveyance of the estate", and on the 
 other the entering into the covenants. Then why was he 
 to declare, that in respect of this annuity, and of the 
 sum which was payable on a contingency, and which 
 therefore never might be payable, there was to be a lien 
 on the purchased estates ? Why should he go farther 
 than any of the cases that had been hitherto decided 
 upon the subject of lien on purchased estates, and do that 
 which appeared to be contrary to the intention of the par- 
 ties ? His Honor considered that this case was decided 
 by the authority of Winter v. Lord Anson. 
 
 A stipulation that the purchase-money should be repaid 
 within two years after a resale, was held to discharge 
 the vendor's lien(A:). 
 
 But equity would not raise this equitable lien in favor 
 
 (k) Ex parte Parkes, 1 Glyn & Jam. 228. 
 (*59)
 
 PURCHASE MONEY UNPAID. 
 
 65 
 
 of a papist incapable oi" purchasing(/), for that would 
 have given him an interest in land. (288) 
 
 If a vendor take a distinct and independent security for 
 the purchase-money, his lien on the estate is gone ; such 
 a security is evidence that he did not trust to the estate as 
 a pledge for his money(?«)(289). 
 
 Thus, upon the sale of an estate, the vendor accepted 
 some stock for the money(w), with an agreement, that in 
 case it did not within a limited time produce a sum nam- 
 ed, the purchaser should make it up that sum. The stock 
 proved deficient ; and Sir William Grant held, that the 
 vendor had no lien on the estate for the deficiency : he 
 thought that the vendee could not have any motive for 
 (*)parting with his stock, but to have the absolute domin- 
 ion over the land. It was impossible, his Honor said, that 
 it could be intended that the vendor should have this 
 
 (/) Harrison v. Soulhcote, 2 Ves. 389. See now 10 Geo. 3. 
 
 {in) See 6 Ves. jiin. 483 ; and see the observations of Lord Eldon 
 on this case in 15 Ves. jun. 348, 349. 
 
 (n) Nairn v. Prowse, 6 Ves. jun. 752 ; but see Lord Eldon's obser- 
 vations, post. 
 
 (288) A court of equity will not decree a specific performance of a 
 contract relating to lands, in favor of an alien, it being against the ge- 
 neral policy of the law. Orr v. Hodgson, 4 Wheat. 465. But (he dis- 
 abilities of an alien are distinguishable from those of a papist in Eng' 
 land. See Craig v. Leslie, 3 Wheat. 688, 589. ; and see note in Jack- 
 son V. Clark, 3 Wheat. 12. 
 
 (289) See Tayloe v. Adams, Gilmer, 329. See also Broivn v. Gil- 
 man, 4 Wheat. 255, 291. Cox v. Femvick, 3 Bibb, 183. The lien of 
 the vendor for unpaid purchase money, may be waived by the acts of the 
 parties, shewing, that it is not intended to be retained. Broivn v. Gil- 
 man, ut supra. See Garson v. Green, 1 Johns. Ch. Rep. 308. If, on 
 a sale of land, the vendor take bohds with personal security, he loses 
 his lien upon the land. Frances v. Huzlerigg, Hardin, 48. But it 
 seems, that where the vendee gave a bond, with surety, for the purchase 
 money, and received no conveyance, the vendor will not lose his lien. 
 Hatcher v. Hatcher, 1 Rand. 53. See further, Cole v. Scott, 2 Wash. 
 142. Wilson V. Graham's Vxr. 5 Munf. 297. 
 
 VOL. II. 9 (*60)
 
 66 
 
 OF THE VENDOR'S LIEN FOR 
 
 double security, an equitable mortgage and a pledge, 
 which latter, if the stock should rise a little, would be 
 amply sufficient to answer the purchase-money. 
 
 And the same rule must, it has been said, prevail where 
 a vendor accepts a mortgage of another estate for the 
 purchase-money, the obvious intention of burthening one 
 estate being, that the other shall remain free and unin- 
 cumbered(o) ; so, even where the vendor takes a mort- 
 gage of the estate sold for only part of the purchase- 
 money ; because, by taking a mortgage for part, he clearly 
 evinces his election, that the estate should be charged 
 with that part only(7?)(290). 
 
 Lord Eldon, however, has said, that it did not appear 
 to him a violent conclusion as between vendor and vendee, 
 that notwithstanding a mortgage, the lien should sub- 
 8181(9). It must not, he added, be understood, that a 
 mortgage taken is to be considered as a conclusive 
 ground for the inference, that a lien was not intended, as 
 he could put many, instances, that a mortgage of another 
 estate for the purchase-money, would not be decisive evi- 
 dence of an intention to give up the lien, though in the 
 ordinary case, a man has always greater security for his 
 money upon a mortgage, than value for his money upon a 
 purchase ; and the question must be, whether, under the 
 circumstances of that particular case, attending to the 
 
 (o) See Nairn v. Prowse ; but see 16 Ves. jun. 341 ; 2 Ball & Bent. 
 515. 
 
 (p) Bond V. Kent, 2 Vern. 281. See 1 Scho. & Lef. 135. 
 
 (g) See 16 Ves. jun, 341 ; and see Cowell v. Simpson, 16 Ves. jun. 
 278, 280. 
 
 (290) So, where it is agreed, that the lien shall be retained to a cer- 
 tain extent, this shall be deemed a waiver of tha Hen to any greater ex- 
 tent. Brown v. Gilman, 4 Wheat. 255, 290. And so, where a part of 
 the purchase money is paid, the lien shall be good for the residue ; and 
 the purchaser is to be considered as a trustee for the amount unpaid. 
 Garson v. Green, 1 Johns. Ch. Rep. 308.
 
 PURCHASE MONEY UNPAID. 
 
 67 
 
 worth of that very mortgage, the inference arises. In the 
 instance of a pledge of stock, does it necessarily follow 
 that the vendor, consulting the convenience of the pur- 
 chaser, (*)by permitting him to have the chance of the 
 benefit, therefore gives up the lien which he has ? The 
 doctrine, as to taking a mortgage or pledge, would be 
 carried too far, if it is understood as applicable to all 
 cases, that a man taking one pledge, therefore necessarily 
 gives up another, which must, his Lordship thought, be 
 laid down upon the circumstances of each case, rather 
 than universally(r). 
 
 A bond, and a mortgage of part of the estate, have 
 been held to exclude the lien over the rest of the 
 estate(5). 
 
 But it seems, that taking a covenant, bond or note, for 
 the purchase-money, will not affect the vendor's lien(291). 
 
 This was settled by the case of Hearne v. Botelers(i), 
 where a bond was taken for the money, and some of it 
 remained unpaid, and the bond was lost ; for the opinion 
 of the Court was to charge the defendants, in regard of 
 the land in their possession, with the payment thereof; on 
 the ground, it should seem, that taking a bond did not 
 deprive the vendor of his equitable lien ; for unless he 
 had such a lien, the loss of the bond would hardly be a 
 ground to charge the money on the estate(2f). 
 
 So, in- Gibbons v. Baddall(.T), it was said, that if A. 
 
 (r) Mackreth v. Symmons, 15 Ves. jun. 348, 349. 
 (s) Capper V. Spottiswoode, 1 Taml. 21. 
 
 {t) Gary's Rep. Cha. 25 ; and see TardifFr. Scrughan, 1 Bro. C. C. 
 422, cited ; and Harrison v. Southcote, 2 Yes. 389. 
 («) But see 15 Ves. jun. 338, 343, pej- Lord Eldon. 
 (x) 2 Eq. Ca. Ab. 682, n. (b) to (D.) ; Ex parte Peake, 1 Madd. 346. 
 
 (291) Garson v. Green, 1 Johns. Ch. Rep. 308. White v. Casanave, 
 1 Har. & Johns. 106. Cox v. Femvicke, 3 Bibb. 183. Kennedy v. 
 fVoolfolk, 3 Hayw. 197. See Dtcval v. Bibb, 4 Hen. & Munf. 113. 
 Stoiiffer's Les. v. Coleman, 1 Yeates, 393. 
 
 (*6n
 
 CO OF THE VENDOR'S LIEN FOR 
 
 sells an estate, and takes a promissory note for part of the 
 purchase-money, and then the purchaser sells to B., who 
 has notice that A. had not received all his purchase-money, 
 the land in equity is chargeable in the hands of B., with 
 the money due on the note. In this case, therefore, the 
 (*)existence of the equitable lien was considered as a 
 point perfectly settled. 
 
 But in Fawell v. Heelis(//), where a receipt was in- 
 dorsed on the deed for the purchase-money(I), although 
 it was not actually paid, and the vendor took a bond for 
 the purchase-money, Lord Bathurst held that he had 
 thereby departed with his lien. He said, he did not find 
 an instance where a bond had been taken for the consid- 
 eration-money(2:). It was evident the vendor had an 
 opinion of the purchaser at the time, otherwise he would 
 not have let the money remain in his hands. I consider 
 it, he added, as a transaction distinct, and independent of 
 the purchase : he lends him the money, and he chooses 
 his security, and I think he must abide by it ; therefore 
 let the bill be dismissed. 
 
 In a subsequent case(rt), however, Lord Rosslyn was 
 decidedly of opinion against the doctrine laid down by 
 Lord Bathurst. After commenting on other cases, he 
 said, the case of Fawell and Heelis remained ; there Lord 
 
 (y) Ambl. 724 ; 1 Bro. C. C. 421, n. ; 2 Dick. 485. 
 (r) Vide Heale v. Botelers, and Gibbons v. Baddall, ubi siqyrn. 
 (a) Blackburn v. Gregson, 1 Cox, 90 ; 1 Bro. C. C. 420 ; and see 
 Tardifte v. Scriighan, ibid. 423, cited; and 15 Yes. jun. 336, 337. 
 
 (I) This of course could not make any difference in the case, for a 
 receipt of the purchase-money, although signed by the seller, is in 
 equity of no avail if the money be not actually paid. See Coppin 
 V. Coppin, 2 P. Wnis. 291 ; but at law the receipt cannot be got over, 
 Biovvntree v. Jacob, 2 Taunt. 141, unless merely fraudulent, Henderson 
 V. Wild, 2 Campb. 561 ; see Lanipon v. Corpe, 5 Barn. & Aid. 606 ; 
 1 Dowl. & Ryl. 211, S. C. ; and in equity payment will be presumed 
 after a great length of time, Bidlake v. Arundell, 1 Cha. Rep. 93. 
 • (*62)
 
 PURCHASE MONEY UNPAID. 
 
 69 
 
 Bathurst doubted whether there was such an equitable 
 lien ; it became, therefore, of great consequence that it 
 should be spoken to. It struck him always, he said, that 
 there was such a lien, and that it was so from the founda- 
 tion (*)of the court. A bargain and sale must be for mon- 
 ey paid. If an estate is sold, and no part of the money 
 paid, the vendee is a trustee : then, if part be paid, was 
 it not the same as to that which was unpaid ?(292) 
 
 In the late case of Nairn v. Prowse(6), the Master of 
 the Rolls seemed to incline to the same opinion. He 
 said, that by conveying the estate without obtaining 
 payment, a degree of credit was necessarily given to the 
 vendee. That credit might be given upon the confidence 
 of the existence of such a lien. The knowledge of that 
 might be the motive for permitting the estate to pass 
 without payment. Then it may be argued, that taking 
 a note or bond cannot materially vary the case. A credit 
 is still given to him, and may be given from the same 
 motive ; not to supersede the lien, but for the purpose 
 of ascertaining the debt, and countervailing the receipt 
 indorsed upon the conveyance. 
 
 And in a case where a receipt was given for the whole 
 purchase-money, but part was retained, and a promissory 
 note given for it to a trustee for the vendor, there being 
 debts affecting the estate, the amount of which was not 
 ascertained. Lord Redesdale held, that it lies on the 
 purchaser to show that the vendor agreed to rest on the 
 collateral security ; prima facie the purchase-money is 
 a lien on the lands. In this case, he said, that the 
 purchaser's note was nothing but a mere memorandum, 
 put into the hands of a trustee, to enable the purchaser 
 first to pay oiF incumbrances, and then to be subject to 
 
 [h] 6 Yes. JLin. 752. 
 
 (292) See Garson v. Green^ 1 Johns. Ch. Rep. 309. 
 
 (*63)
 
 70 OF THE VENDOR'S LIEN FOR 
 
 an account, and the balance only to be received by the 
 vendor. It cannot be considered that the vendor relied 
 on it as a security. Suppose bills given as part of the 
 purchase-money, and suppose them drawn on an insolvent 
 house, shall, his Lordship asked, the acceptance of such 
 (*)bills discharge the vendor's lien ? They are taken, 
 he added, not as a security, but as a mode of pay- 
 ment (c) (293). 
 
 And in a late case. Where the purchase-money was 
 paid by bills drawn by the purchaser and accepted by 
 him and his partner, payable to the seller's order. Sir Wm. 
 Grant, Master of the Rolls, determined that the lien was 
 not gone(f/). It was insisted, that by taking bills accepted 
 by the partnership, the vendor got the security of a third 
 person, which must be considered as a substitution for the 
 lien. His Honor observed, that what might be the effect 
 of a security, properly so denominated, of a third person, 
 had never, he believed, been absolutely determined ; but 
 he perfectly concurred in the opinion expressed by Lord 
 Redesdale in Hughes v. Kearney(e), that bills of exchange 
 are to be considered not as a security, but merely as a 
 mode of payment. That is obvious from attending to the 
 nature of a bill of exchange ; it is an order by the drawer 
 for the payment of money which he has in the hands of 
 the drawee to the holder of that bill. The acceptor, by 
 his acceptance, acknowledges that he has money belong- 
 ing to the drawer in his hands, and engages to have that 
 money forthcoming according to the requisition of the 
 bill. The acceptor is never considered as a surety for 
 the debt of another. By accepting he admits himself to 
 be a debtor to the drawer. The subject of the bill is, in 
 
 (c) Hughes V. Kearney, 1 Scho. & Lef. 132. 
 
 (d) Grant v. Shills, 2 Yes. & Bea. 306. 
 
 (e) 1 Scho. & Lef. 132. See 136. 
 
 (293) See Garson v. Green, 1 Johns. Ch. Rep. 309. 
 
 (*64)
 
 PURCHASE MONEY UNPAID. -^j 
 
 contemplation of law, the drawer's own money, which he 
 authorizes the creditor to receive instead of receiving it 
 himself, and afterwards handing it over to such creditor. 
 
 And in such cases it is not important that the note or 
 bill has been negotiated(y). 
 
 (*)The same point seems to have been decided in Co- 
 mer V. Walklej(^). A trustee sold an estate for 720/. : 
 600/. was left in the purchaser's hands as an indemnity 
 against an annuity ; and a deed was entered into between 
 him and the trustee, whereby he covenanted to pay inte- 
 rest on the 600/., and when the annuity should cease or 
 be discharged, to pay the money to the trustee. By se- 
 veral conveyances, &c. the estate became again vested in 
 trustees, upon trust to sell ; and they sold the estate to a 
 purchaser, who objected to complete his contract without 
 the concurrence of the person entitled to the residue of 
 the 600/. then unpaid. Two bills were filed, one by the 
 person entitled to the residue of the 600/. against the 
 purchaser and others, for payment of it ; and the other by 
 the purchaser, who had been in possession twenty-two 
 years, for a specific performance, which was accordingly 
 decreed, and his costs in both causes were allowed. The 
 proper accounts of the personal estate were directed to be 
 taken in the first cause, but the question, out of what 
 estates any deficiencies should be made good, was re- 
 served : so that it does not appear that the Court held 
 the money to be a lien on the land any further than by 
 giving the purchaser his costs in both causes ; which cir- 
 cumstance alone is, however, conceived to be decisive. 
 And the question has received the same decision in a 
 recent case before Lord Eldon, after an elaborate review 
 of all the authorities(A). 
 
 (/) Ex parte Loaring, 2 Rose, 79. But it is otherwise at law upon 
 a sale of goods, Burney v. Poyntz, Nev. & Shann. 229. 
 ig) Reg. Lib. A. 1784, fol. 625 ; vide supra, p. 46. 
 {h) Mackreth v. Symmons, 15 Ves. jun. 329. The case was after- 
 
 (*65)
 
 72 
 
 OF THE VENDORS LIEN FOR 
 
 Upon the whole, therefore, it seems quite clear, that 
 taking a covenant, l)ond or note, for the purchase-money, 
 or any part of it, will not discharge the vendor's equitable 
 lien on the estate. And it seems that the same rule must 
 (*)prevail although the estate is sold for an annuity, and 
 a covenant, bond or note is taking for securing the pay- 
 ment of \x{i)' 
 
 In Elliot V. Edwards(A), the vendor assigned a lease- 
 hold estate to the purchaser, upon payment of part of the 
 purchase-money. The purchaser, and another person as 
 his surety, -covenanted for payment of the residue of the 
 purchase-money ; and in the assignment was contained a 
 proviso, that the estate should not be assigned until all 
 the money was duly paid, without the joint consent of the 
 vendor and the surety. Lord Alvanley was of opinion, 
 that the vendor had an equitable lien, and that till the 
 money was paid, equity would not compel a speciiic per- 
 formance of any agreement by the assignee for sale of 
 the estate. But if a third person advance part of the pur- 
 chase-money to the vendor, and he is in effect made a 
 mortgagee of the estate, his right will prevail over the 
 vendor's lien(/). 
 
 In Blackburn v. Gregson(7?i), Lord Rosslyn, as we have 
 seen, said, that if an estate is sold, and no part of the 
 money paid, the vendee is a trustee : from which it might 
 perhaps be inferred, that a vendor has always an equi- 
 table lien where no part of the purchase-money is paid : 
 but this cannot be considered as a general rule ; it being 
 
 wards reheard by Lord Chancellor Eldon, with the assistance of two 
 Judges, but judgment was not given. 
 
 (i) See Tardiffe v. Scrughan, 1 Bro. C. C. 423, cited ; but see 
 Mackreth r. Symmons, 15 Ves. jun. 329, which, however, was a very 
 particular case ; and see Clarke v. Royle, sup. p. 58. 
 
 (/.•) 3 Bos. & Pull. 181. 
 
 (/) Wood V. Pollard, 9 Price, 544. 
 
 (m) 1 Bro. C. C. 424. 
 
 (*66)
 
 PURCHASE MONEY UNPAID. 
 
 73 
 
 clear, tliat a vendor uiaj depart with his lien, although 
 no part of the purchase-money be paid. Indeed the same 
 rules seem to prevail on this subject, whether the whole 
 or only part of the purchase-money remains unpaid. 
 
 Wliere a security by bond or note is given for the pur- 
 chase money, and it is intended that the vendor shall 
 (*)not have a lien on the estate for the money, a declara- 
 tion to that effect should be inserted in the conveyance ; 
 which would effectually prevent equity from raising a lien 
 upon the presumed intention of the parties(294) 
 
 (294) In Kaufielt v. Bower, 7 S. & R. 64, it was decided that where 
 the conveyance was absolute and possession delivered according to the 
 deed ; and the vendee executed his bond with surety for the purchase 
 money, there was no lien as against judgment creditors recovering their 
 judgments subsequent to the conveyance. Gibson, J. in delivering the 
 judgment of the court said, the doctrine of lien has never been en- 
 couraged by the legislature ; but has been barely tolerated, in particular 
 cases and under severe restrictions. Nor can I conceive how it ever 
 came to be considered a principle of general equity any where, that a 
 vendor, who has divested himself of every particle of right that can 
 pass by deed, shall nevertheless have an available interest in the land. 
 Duncan, J. observed, that " the doctrine of implied lien here is a novel 
 one, lately imported ; and opposed to the policy of our government, 
 which is to leave this species of property, altogether free to alienation, 
 unincumbered with secret trusts, or concealed liens. The case of Ir- 
 vine et al. V. Campbell, 6 Binn. 118, very properly decided that the 
 vendor had a lien for the purchase money ; for there the instrument was 
 denominated an article of agreement, and contained a covenant, that 
 each party should give to the other, any further instrument of writing 
 agreeable to law, which should be necessary for the security of either. 
 It appeared on the face of the agreement that the money was not due 
 until after the judgment and sale to Irvine. And in Calhoun v. Snyder, 
 6 Binn. 167, Yeates, J. states, that if the rule should be adopted here, 
 that judgments bound after purchased lands, the situation of a buyer 
 and seller would be most perilous. In this case the bond given by 
 Bower was not what in the French law is called a priviledged obligation, 
 for which he had a lien, on the property sold, to be paid in preference 
 to other creditors ; it was without lien, agreement, or covenant binding 
 the land, running with it ; the personal security of the obligor. Such 
 likewise is the settled principle in South Carolina, ex parte Wragg, 2 
 Dess. Ch. R. 509. Cases of fraud are exceptions to the rule. 
 VOL. II. 10 (*67)
 
 74 
 
 OF THE VENDOR'S LIEN FOR 
 
 II. It must be remarked, that although equity raises 
 this lien in favor of a vendor, yet it is not extended to 
 third persons ; that is, where the vendor is satisfied out of 
 the personal estate of the purchaser, in exclusion of a 
 third person, that person cannot resort to the equitable 
 lien of the vendor on the estate ; or, in other words, can- 
 not require the purchased estate and the personal estate 
 to be marshalled. 
 
 Thus, in the case of Coppin v. Coppin(w), a younger 
 brother purchased an estate of his elder brother, but part 
 of the purchase-money was not paid. The purchaser 
 made his will, charging his estate with great legacies ; 
 but the will was attested by only two witnesses; after- 
 wards the purchaser died, leaving his brother, the vendor, 
 his heir and executor(295) ; and it was holden by Lord 
 Chancellor King, that he had an equitable lien on the 
 land ; that he was entitled to retain the purchase-money 
 out of the assets ; and that the legatees could not stand 
 in his place with respect to the equitable lien. 
 
 There is an important case on this subject, which de- 
 mands particular attention. The case to which I allude 
 is Pollexfen v. Moore(o). It appeared that Thomas 
 Moore purchased an estate from Pollexfen, and had not 
 paid all the purchase-money ; he devised the estate to 
 Kemp, and, subject to some legacies, made Kemp his 
 residuary legatee and executor. Kemp wasted the per- 
 sonal estate and died ; whereupon the purchased estate 
 (*)descended to Boyle Kemp, his son and heir at law. 
 Pollexfen filed his bill for payment of the remainder of 
 the purchase-money. Mrs. Moore, a legatee in Thomas 
 
 (») Coppin V. Coppin, Sel. Cha. Ca. 28; 2 P. Wms. 291. 
 (o) 2 Atk. 272. 
 
 (295) "The death of the vendee does not alter the claim ;" /)«• 
 KENT, Chancellor. Garson v. Green, 1 Johns. Ch. Rep. 309. See 
 Trustees of the University v. Gilmour, 2 Hayw. 129. 
 
 (*68) 

 
 PURCHASE MONEY UNPAID. J^ 
 
 Moore's will, brought a cross-bill, praying that if the pur- 
 chase-money should be paid out of the personal estate, 
 she might stand in the purchaser's place as to his lien on 
 the land. Lord Hardwicke admitted that Pollexfen had a 
 lien on the estate for the remainder of the purchase- 
 money. But he said, that this equity would not extend 
 to a third person, but was confined to the vendor and 
 vendee only ; and if the vendor should exhaust the per- 
 sonal assets of Moore and Kemp, the defendant would 
 not be entitled to stand in his place, and to come upon 
 the purchased estate in the possession of Kemp's heir. 
 But then the heir should not avail himself of the injus- 
 tice of his father, who had wasted the assets of Moore, 
 which should have been applied in paying the defen- 
 dant's legacy. Therefore, Lord Hardwicke added, that 
 the estate which had descended from Kemp, the executor 
 of Moore, upon Boyle Kemp, came to him liable to the 
 same equity as it would have been against the father, 
 who had misapplied the personal estate ; and in order to 
 relieve Mrs. Moore, he would direct Pollexfen to take 
 his satisfaction upon the purchased estate, because he 
 had an equitable lien both upon the real and personal 
 estate ; and would leave this last fund open, that Mrs. 
 Moore, who could at most be considered only as a sim- 
 ple-contract creditor, might have a chance of being paid 
 out of the personal assets. 
 
 The decree was general, that the residue of the pur- 
 chase-money and interest should in x\\e first place be paid 
 out of the personal estate of the said Thomas Moore ; but 
 that in case it should appear that Moore did not leave 
 assets to pay what should be so due for the residue of 
 the purchase-money, and all his other debts, legacies and 
 (^]funeral expences ; or if the personal estate of Moore 
 was not then sufficient, by reason that the assets of Kemp 
 were not sufficient to answer such part thereof as came 
 
 (*69)
 
 76 
 
 OF THE VENDOR'S LIEN FOR 
 
 to his hands, then such deiiciencj, " so far as the person- 
 al estate of the said Thomas Moore shall be applied in 
 payment of the said purchase -money (I),'''' should be made 
 good out of the purchased estate, and a competent part 
 thereof was decreed to be sold accordingly. 
 
 Now in this case Lord Hardwicke, in giving judgment, 
 clearly agreed with the decision in Coppin v. Coppin, 
 that this equity did not extend to a third person. Accord- 
 ing to the judgment, his Lordship deviated from that rule 
 in the case before him, on the ground of fraud. But 
 Lord Hardwicke's decree cannot be satisfactorily account- 
 ed for on this narrow ground. The decree was, that if 
 Thomas Moore (the original purchaser) did not leave 
 assets to pay the residue of the purchase-money, and all 
 his debts, funeral expenses, and legacies, then the pur- 
 chased estate and the personal estate should be marshall- 
 ed, so as to let in the simple-contract creditors and lega- 
 tees. This could not be on account of the fraud in Kemp, 
 the devisee and executor. 
 
 It appears by the Registrar's book, that Pollexfen had 
 not delivered the title-deeds and conveyance of the estate 
 to the purchaser, but had by agreement kept them in his 
 own custody as a security for the purchase-money unpaid ; 
 (*)and he strongly insisted by his bill, that he never in- 
 tended the deeds to have operation till all the money 
 
 (I) The decree has generally been considered at variance with the 
 judgment. In the first edition of this work, the author stated, that he 
 could not see the principle upon which the decree was made, if it were 
 correctly stated, that if the purchaser did not leave assets to pay the 
 purchase-money, and all his debts, funeral expenses, and legacies, the 
 deficiency was to be made good out of the purchased estate. See 3. 
 Atk. 273, n. 3, last editon. Upon searching the Registrar's book, it ap- 
 pears that the decree was qualified as stated in the text ; and this emen- 
 dation, with the observations in the text, will, it is hoped, conduce to a 
 right understanding of this case. See Reg. Lib. B. 1745, fol. 283. 
 
 (*70)
 
 PURCHASE MONEY UNPAID, 
 
 77 
 
 was paid(p). And this, it is apprehended, must have 
 been the ground on which the decree was pronounced. 
 The seller had an equitable mortgage on the estate, and 
 the case therefore came within the general rule, as to 
 marshalling(^). 
 
 Thus explained, the case of Pollexfen v. Moore does 
 not in the least clash with Coppin v. Coppin, but appears 
 to establish an important distinction on this subject, viz. 
 that where the purchaser has an equitable mortgage on 
 the estate, or in case of fraud, the purchased estate and 
 the personal estate may be marshalled in favor of simple- 
 contract creditors and legatees. 
 
 The general question under discussion arose in a case 
 before Lord Eldon, but it was not necessary to decide it. 
 Pollexfen v. Moore, as reported, was the only case cited. 
 The Lord Chancellor assimilated the lien to a charge, and 
 said, that the cases of marshalling seem to have gone this 
 length : that, where there is a charge upon an estate de- 
 scended, a legatee shall stand in the place of the person 
 having that charge, resorting to the personal estate. His 
 Lordship, however, gave no opinion upon the point, 
 although it is clear that the inclination of his opinion was 
 in favor of the legatee under the general rule(r). In a 
 still later case the very point came before Sir Wm. Grant, 
 Master of the Rolls, and called for a decision (5). The 
 only case cited was Pollexfen v. Moore, as reported 
 (*)in Atkyns. His Honor said, that it was a very obscure 
 
 ip) Reg. Lib. B. 1745, fol. 283. 
 
 (5) Lutkins v. Leigh, For. 53 ; Aldrich v. Cooper, 8 Ves. jun. 397. 
 In my copy of Forrester, Holdsvvorth v. Holdsworth, Hil. 23 Geo. 
 • in. on appeal from the Rolls, is referred to ; and see O'Neal «. 
 Mead, 1 P. Wms. 693, and the cases in the note. 
 
 (r) See Austen v. Halsey, 6 Ves. jun. 475 ; and see Cox's n. (1 ) to 
 2 P. Wms. 295. 
 
 («) Trimmer v. Bayne, 9 Ves. jun. 209 ; and see Headley v. Road- 
 head, Coop. 50. 
 
 k(*71)
 
 
 Y3 OF THE VENDOR'S LIEN FOR ' 11 
 
 report ; and it had perplexed him very much formerly. 
 The decision was against that diction of Lord Hardwicke. 
 This could not be distinguished from the common case 
 of marshalling ; that a, person having resort to two funds 
 shall not by his choice disappoint another, having one 
 only : and a decree was pronounced accordingly. 
 
 The reader will observe, that the case of Coppin v. 
 Coppin was not cited in either of the foregoing cases ; 
 and should the observations which have been made on 
 Pollexfen v. Moore be thought correct, it would seem that 
 Lord Hardwicke's decision was not in opposition to his 
 dictum in the same case, expressive of the rule established 
 by Lord Chancellor King. Perhaps the common case of 
 marshalling may be thought not to apply to the point in 
 question, when it is considered that the equitable lien 
 was originally raised bjj the construction of equity in 
 favor of the vendor only, and not in favor of third 
 persons. It seems to have been thought in Coppin v. 
 Coppin, and apparently with some reason, that extending 
 the vendor's lien to third persons would be breaking in 
 upon the statute of frauds. The general rule as to mar- 
 shalling applies to cases where the person resorting to 
 the personal estate has an actual charge or lien on the 
 real estate : but in this case, if equity first deems the 
 purchaser a trustee for the vendor as to so much of the 
 estate as will satisfy the purchase-money unpaid, and then 
 permits a disappointed legatee to stand in the place of the 
 vendor, it is creating a charge on the land in direct oppo- 
 sition to the statute of frauds. On sale of the estate, the 
 purchase-money becomes a debt payable out of the pur- 
 chaser's personal estate; and the equitable lien ought, it 
 is conceived, to be extended to so much only of the pur- 
 chased estate as the personal estate is insufficient to 
 answer. The vendor has not an original charge on the 
 (*)estate, but only an equity to resort to it, in case the 
 
 (*72)
 
 PURCHASE MONEY UNPAID. 
 
 79 
 
 personal estate prove deficient. In this view of the case 
 an independent substantive charge on the land is, in fact, 
 created by equity in favor of a legatee, although, if the 
 legacy was actually imposed on the estate by a will not 
 duly executed according to the statute of frauds, the 
 Court is bound to say, that the will cannot be read as to 
 the charge. 
 
 It is with great deference that these observations are 
 submitted to the reader, after the high opinions which 
 have been given upon this point ; but as the case of 
 Coppin V. Coppin was not cited in the recent cases, and 
 the effect of a decision over-ruling that of Lord Chancellor 
 King, does not appear to have presented itself to the 
 mind of the Court, it still seems open to contend, that 
 the equity under consideration cannot be extended to 
 a third person, unless by reason of a fraud, or on the 
 ground of the vendor having an equitable mortgage on the 
 estate. 
 
 Since these observations were written. Lord Eldon, in 
 deciding the general question of lien, observed that he 
 had some doubt upon another point, whether the Court 
 will in case of the death of the vendee marshal the assets, 
 so as to throw the line on the purchased estate. It has 
 been often said, and the case of Coppin v. Coppin stated 
 as an authority, that a Court will not do that. The Lord 
 Chancellor in his judgment takes no notice of that point. 
 In that case the heir happened to be the heir of the 
 vendee, so that the estate was at home, and it was held 
 that being also the executor, he was entitled to retain the 
 •purchase-money out of the personal assets. That deci- 
 sion requires a good deal of consideration. If the estate 
 had been in a third person, the general doctrine as to a 
 person having two funds to resort to, might be thought 
 to have an immediate application, and the express terms 
 (*)of the decree in Pollexfen v. Moore might be found very 
 
 (*73)
 
 80 
 
 OF THE VENDORS LIEN FOR 
 
 inconsistent with it(t). On a subsequent occasion, Lord 
 Eldon observed (in allusion to Lord Hardwicke's obser- 
 vation in Pollexfen v. Moore, before noticed), that if the 
 meaning was that he (Lord H.) would follow the case 
 of Coppin V. Coppin, and that if the vendor exhausted 
 the personal assets, the legatee of the purchaser should 
 not come upon the estate, there is great difficulty in ap- 
 plying the principle, as it would then be in the power of 
 the vendor to administer the assets as he pleases : having 
 a lien upon the real estate to exhaust the personal assets^ 
 and disappoint all the creditors ; w ho, if he had resorted 
 to his lien, would have been satisfied, and in that 
 respect, with reference to the principle, the case is 
 anomalous(w). 
 
 In the late case of Selby v. Selby, the Master of 
 the Rolls decided that the assets should be marshalled 
 against the devisee in favor of simple-contract credi- 
 tors(a:)(296). 
 
 {I) 15 Ves. jun. 338, 339. 
 (m) 15 Ves. jun. 345. 
 (x) 4 Russ. 336. 
 
 (296) Pecuniary Legacies are not a charge upon the lands, as against 
 a residuary devisee, unless such an intention be clearly expressed by 
 the testator. 
 
 As, in Gridley <$- ux. v. Jlndretvs <$' al. 8 Conn. R. 1, where the tes- 
 tator after several legacies to his daughters to be paid in one year after 
 his death, gave the residue of his estate to his son. At the time of 
 making his will he had ample personal estate to pay all debts and 
 legacies ; but when he died, his personal effects were only sufficient 
 to pay the debts, &c. without the legacies. The testator, however, 
 had purchased $4,000 worth of real estate, which he paid for out of 
 the personal estate ; and this between the making of the will and his 
 death ; but a share of this latter estate descended to the plaintiff, as 
 heir at law. And the question in the case was, whether the plain- 
 tiff as legatee was entitled to payment of the legacy out of the real es- 
 tate ; and held, that the legacies were not a charge on the real estate. 
 Bissely J. The intent of the testator is to prevail ; but no rule is better 
 
 (*73)
 
 PURCHASE MONEY UNPAID. Ol 
 
 III. The observation of Lord Hardwicke before noticed, 
 that this equity would not extend to a third person, but 
 was confined to the vendor and vendee only, is frequently 
 adduced to prove, that the lien does not exist when the 
 estate passes into the hands of a third person ; but by the 
 latter part of the same passage(y), it clearly appears, that 
 this was not Lord Hardwicke's meaning ; and in Walker 
 V. Preswick(2) Lord Hardwicke said, that this lien pre- 
 vailed against the purchaser, his heir, or any claiming 
 under him, with notice of this equitable title ; which 
 evinces his meaning to be, that the purchased estate, and 
 the personal estate of the purchaser, could not be mar- 
 shalled in favor of a third person, although, as we have 
 
 (y) Vide supra, p. 68. 
 (2) 2 Ves. 622. 
 
 established than that pecuniary legacies are never to be a charge on 
 real estate, unless such intention be clearly expressed by the testator. 
 In Swift V. Edson, 5 ib. 532, the testator gave pecuniary to a large 
 amount, and expressly directed the legacies to be paid ; and there was 
 a devise over of the residue of her estate. When the will was made 
 she had sutficient personal estate to pay all debts and legacies ; but by 
 the foreclosure of mortgages in her life time the personal was converted 
 into real estate ; and the prayer was that the real estate obtained by such 
 foreclosures might be applied to the payment of the legacies. The 
 C. J. there recognised the distinction between a charge lipon the realty, 
 whether it be for the payment of the debts and legacies. In respect to 
 the latter, he said, ' there must be a clear, nianifest intention that the 
 heir or devisee shall take subject to the legacies ;' — and the bill with re- 
 spect to that relief was dismissed. 
 
 So, in Tole ^- tix. v. Itardij, 6 Cowen, 333, where the words were : — 
 " I give to W. H. (defendant) all my estate that I now live on, which 
 shall be his forever ; and he is to pay Mrs. Tole $100. Defendant being 
 one of the executors said he would pay (he legacies, if the widow would 
 release her dower, &c., which she did. The action was assumpsit for 
 the legacy ; and the question was whether the legacy was a charge on 
 the land ? The court held, that it did not clearly appear that this legacy 
 was to be a specific charge on the land to the exclusion of the personal 
 property from coming in aid of the real. 
 
 VOL. n. 11
 
 09 OF THE VENDOR'S LIEN FOR 
 
 (*)seen, he called it in Pollexfen v. Moore, by reason of 
 the equitable mortgage. 
 
 It appears then, that this equitable lien prevails against 
 the purchaser and his heir, and all persons claiming 
 under him with notice, although for valuable considera- 
 tion(«)(297). 
 
 But it of course would not prevail against a bona fide 
 purchaser without notice : and the mere deduction of the 
 title to the estate from the first vendor by recital, will not 
 be sufficient to affect him, for that does not show it was 
 not paid for(6)(298). 
 
 Persons coming in under the purchaser by act of law, 
 as assignees of a bankrupt(c), are bound by an equitable 
 lien, although they had no notice of its existence ; be- 
 cause, as Sir William Grant observed on another point, 
 the assignment from the commissioners, like any other 
 assignment by operation of law, passes the rights of a 
 bankrupt precisely in the same plight and condition as 
 he possessed them. Even where (as in this instance) a 
 complete legal title vests in them, and there is notice of 
 an equity affecting it, they take, subject to whatever 
 equity the bankrupt was liable to{d). 
 
 In some cases by force of the seller's lien, the Court 
 can at once sell the estate and pay the purchase-money 
 to the seller(e). 
 
 But where a trustee for infants, to sell the lease of a 
 
 (a) Hearle v. Botelers, Gary's Cha. Rep. 25 ; Walker v. Preswick, 
 2 Ves. 622 ; Gibbons v. Baddall, 2 Eq. Ca. Abr. 682, n. (b) to (D) ; 
 Elliot V. Edwards, 3 Bos. & Pull. 181 ; Mackreth v. Symmons, 15 
 Ves. jun. 329. 
 
 (6) See 1 Bro. C. C. 302. 
 
 (c) Blackburne v. Gregson, 1 Bro. C. C. 420 ; Bowles v. Rogers, 6 
 Ves. jun. 95, n. (a) ; Ex parte Hanson, 12 Ves. jun. 346. 
 
 (d) See 9 Ves. jun. 100 ; 2 Ves. & Bea. 309. 
 
 (e) Supra, Vol. 1, p. 439. 
 
 (297) See Irvine v. CampbeU, 6 Binn. 118. Cole v. Scott, 2 Wash. 
 142. Stouffer^s Les. v. Coleman, 1 Yeates, 393. 
 
 (298) See Irvine v. Campbell, 6 Binn. 118. 
 (*7-l)
 
 PURCHASE MONEY UNPAID. oo 
 
 brevvhouse, plant and fixtures, contracted to sell them and 
 let the purchaser into possession, and upon a bill filed by 
 (*)the trustee there was a decree for a specific perform- 
 ance, but the purchaser became bankrupt before the mon- 
 ey was paid, the Vice-Chancellor held that there was no 
 lien against the plant, which fell within the provision of 
 the 21 Jac. 1. c. 19(f). 
 
 And creditors claiming under a conveyance from the 
 purchaser, are bound in like manner as assignees(g'), be- 
 cause they stand in the same situation as creditors under 
 a commission. 
 
 In Nairn v. Prowse(/t) the question arose, whether the 
 lien of which we are now treating, should prevail against 
 an equitable mortgage, by deposit of title-deeds ; but the 
 case went ofi" on another ground, and the point was not 
 decided. In Stanhope v. Earl Verney(/), Lord North- 
 ington held, that a declaration of trust of a term in favor 
 of a person, was tantamount to an actual assignment ; 
 unless a subsequent incumbrancer, bona fide, and without 
 notice, procured an assignment ; and that the custody of 
 the deeds respecting the term, with a declaration of the 
 trust of it in favor of a second incumbrancer, was equi- 
 valent to an actual assignment of it ; and therefore gave 
 him an advantage over the first incumbrancer, which 
 equity would not take from him(299). 
 
 Now it must at one view be seen how strong the ana- 
 logy is between the point in question and this case. The 
 only difference between them appears to be, that in the 
 case before Lord Northington, both the trusts were de- 
 
 (/) Ex parte Dale, 1 Buck, 365. 
 
 (g-) Fawell V. Heelis, Ambl. 724 ; and see 1 Bro. C. C. 302. 
 (Ji) 6 Ves. jun. 752 ; see 2 Ves. & Bea. 149. 
 (t) Butler's note, (1) to Co. Litt. 290 b, Ch. July 27, 1761 ; see and 
 consider Frere v. Moore, 8 Price, 476. 
 
 (299) See Broim v. Gilman, 4 Wheat. 290. 
 
 (*76)
 
 84 
 
 OF THE VENDOR'S LIEN FOR 
 
 clared by the parties ; whereas in the case under consi- 
 deration, the trust or lien is raised by equity, and not by 
 express declaration, and the trust or equitable mortgage 
 (*)is generally created by the declaration of the parties ; 
 which circumstance, if it turn the scale either way, is 
 certainly in favor of the mortgagee : so that, upon the 
 authority of this case, we may perhaps venture to say, 
 that an equitable mortgage, by deposit of deeds to a 
 person, bona Jide, and without notice, will give him a 
 preferable equity, and will overreach the vendor's equi- 
 table lien on the estate for any part of the purchase- 
 money (/c). 
 
 A deposit of title-deeds by a simple-contract debtor of 
 the Crown, for securing part of the purchase-money for 
 another estate, binds the Crown as an equitable mortgage, 
 although the purchaser also give his bond to the seller 
 for the money (/). 
 
 Before closing this subject it may be observed, that if 
 a purchaser deposit the deeds with a third person, as a 
 collateral security for part of the purchase-money, the 
 seller, although he obtain possession of the conveyance 
 to him from the depositary, and pledge it to persons who 
 advance money upon it bona Jide, cannot give them a 
 lien beyond the amount of the purchase-money actually 
 unpaid(m)(300), 
 
 (k) In Mackreth v. Symmons, 15 Ves. jun. 329, there was no deposit 
 of the deeds. 
 
 {1} Casberd v. Ward, 6 Price, 411 ; Fector v. Philpott, 12 Price, 197. 
 
 (w) Hooper v. Ramsbottom, 4 Camp. Ca. 121 ; 6 Taunt. 12 ; Har- 
 rington V. Price, 3 Barn. & Adolph. 170. 
 
 (300) " By the English laws, the real estate can never be charged 
 for the debts of the testator, nor in any manner taken from the heir, un- 
 less the will be attested by three or more witnesses. The provisions of 
 our statute are substantially the same. The devise of lands, mention- 
 ed in our statute of wills, must include all charges on lands by last will. 
 By the statutes regulating intestate estates, all the lands of the deceas- 
 
 (*76)
 
 PURCHASE MONEY UNPAID. 
 
 85 
 
 ed, which have not been legally devised, descend to his heirs. If there- 
 fore a charge for the payment of legacies is not virtually a devise of the 
 land, it will have no effect in any case against the heir. It is true that 
 the statute for the settlement of the estates of persons deceased, au- 
 thorises a sale of the real estate, when the goods and chattels are not 
 sufficient, to pay the just debts of the deceased, and the legacies be- 
 queathed in his last will and testament. But the words of this statute 
 may be fully satisfied, if its provisions are confined to such legacies as 
 were by law payable out of the real estate. This is the case with all 
 legacies given in a will, which is executed in the manner prescribed 
 for devising real estate : and this being the case which would most 
 commonly occur, we may presume it to have been in the view of the 
 legislature, in passing the last mentioned statute. By the statute of 
 wills, no instrument can be approved as a testament of personal estate 
 only, if it purports to dispose also of real estate. The statute for the 
 settlement of the estates of persons deceased provides that the real es- 
 tate of every testator or intestate shall be liable to be taken in execution 
 by the creditors of the deceased. But we find no such provision in 
 favor of legatees ; although the latter are allowed to sue for their 
 legacies, by an action at common law against the executor. Per Jack- 
 son, J. in Winslow et al. executors, &c., 14 Mass. 422. 
 
 In the above case, the question arose upon the approval of a codicil 
 attested by two witnesses only, when it was admitted that the testatrix 
 had some real estate, which would pass by the residuary clause in the 
 will. It was disallowed in the probate court, for the reason that the 
 codicil not being signed by three witnesses, it could not revoke nor 
 alter that devise in the will. But the court on appeal allowed and ap- 
 proved the codicil ; but added ' if it should hereafter appear, that the 
 legacies given by the codicil cannot be paid, without disposing of some 
 part of the real estate, which had before been devised by the will ; the 
 question, whether the real estate can be taken for the purpose, will come 
 more properly before the court. We give no opinion at present, whether 
 the will in this case created a virtual charge on the land, for the lega- 
 cies therein bequeathed ; and whether the legacies in the codicil come 
 in under the same charge, according to the principle laid down in the 
 case of Windham v. Chetwynd, 1 Bur. 423 : 1 P. Wms. 421, Masters 
 r. Masters. 
 
 ' At common law the lands of a testator are not assets in the hands 
 of the heirs, for the payment of any but specialty debts, where the heir 
 is expressly bound by the contract. And his lands are not bound for 
 the payment of any of his debts in the hands of a devisee, unless 
 charged by the testator, either generally or specially, in his will. Since
 
 8(5 OF TifE VENDOR'S LIEN FOR 
 
 the St. of 3 & 4 W. & M. c. 14. was passed, by which the lands in the 
 hands of a devisee are made assets for the payment of debts due on spe- 
 cialties, all the lands of the testator, whether they descend or are devised, 
 are chargedby law with the payment of creditors by specialty ; who may 
 also resort to the personal estate. But creditors by simple contract can 
 avail themselves only of the personal estate, and such of the lands as are 
 charged in the will with the payment of debts ; unless when they take the 
 place of creditors by specialty, who have been paid out of the personal 
 estate. These rights of the creditors remain uncontrolled by any pro- 
 visions which a testator can make. But as between legatees and devi- 
 sees who claim under the will, and the heirs who can take only what the 
 testator has not given away, he may regulate the funds, out of which his 
 debts shall be paid : by which regulations they will be bound. 
 
 ' In this commonwealth all the personal estate of the testator, and 
 all the real estate, of which he died seised, whether devised or not, are 
 assets for the payment of all his debts, whether due by simple contract 
 or by specialty. Also by the st. of 1783 c. 24, s. 10, all estate real or 
 persona], undevised in any will, shall be distributed as if it were intes- 
 tate, and the executor shall administer upon it as such.' Again, ' it is 
 manifest that a testator cannot, by any dispositions in his will, affect 
 the rights of creditors : — but he may bind, by his disposition, his legatees, 
 devisees and heirs.' Again, ' the testator cannot charge with the pay- 
 ment of his debts after purchased lands, any more than he can devise 
 them." Accordingly in Hays & al. v. Jackson & al., 6 Mass. 149, the 
 court ordered the executors to take the lands which were not specifical- 
 ly devised, and then such as descended to the heirs and sell the same for 
 the payment of the debts ; for when the testator, or the law has appro- 
 priated an adequate fund to pay the debts, it would be unreasonable for 
 the court to let that fund lie by, and to license an executor to sell a spe- 
 cific devise. 
 
 ' There seems to be no reason or authority for holding that lands spe- 
 cifically devised are liable to be sold for the payment of specific lega- 
 cies. The most that legatees can claim is, that they should be put on 
 an equal footing with the devisees : and that the latter, in case of a 
 deficiency of assets, should be held to contribute.' Per Wilde, J. 9 
 Pick. 661. 
 
 Mr. J. Story in Gardner v. Gardner, 4 Mason, 215, recognizes the 
 doctrine laid down by Lord Eldon, ' that where a man, by deed or will, 
 charges or orders an estate to be sold for the payments of debts general- 
 ly, and then makes specific dispositions, the purchaser is not bound to 
 see to the application of the purchase money.' He adds ' I agree to 
 the doctrine, in cases of a general charge of debts, that the purchaser
 
 PURCHASE MONEY UNPAID. 
 
 87 
 
 need not look to the application, if he has bona fide paid the same. 
 When he once has paid in good faith into the hands of the devisee he 
 is exonerated. But he is not at liberty to assist in its misapplication ; 
 he is not to buy the trust property in payment of antecedent debts, or to 
 aid the devisee in diverting the fund from its proper uses ; and if he 
 does, a court of equity will fasten on the estate in his hands the original 
 charge, which he has attempted to displace. And where debts are pay- 
 able out of an estate, they are a charge upon the estate. Livingston v. 
 The executors of Livingston, 3 Johns. 189 ; Jackson v. Harris, 8 
 Johns. 141 ; Jackson v. Bull, 10 ib. 148 ; and Jackson v. Martin, 18 
 ib. 31, tend to confirm this principle.
 
 [ 88] 
 
 f)CH AFTER XIII. 
 
 OF THE CONSTRUCTION OF COVENANTS FOR TITLE 
 
 SECTION I. 
 
 Where they run with the land. 
 
 In a preceding chapter we have seen to what covenants 
 a purchaser is entitled(«) ; and we are now to consider 
 the construction of covenants entered into by a vendor. 
 
 Covenants for title are termed real covenants, and pass 
 to the assignees of the land by the common law, who 
 may maintain actions upon them against the vendor and 
 his real and personal representatives(6)(I)(301). And as 
 
 (a) Ch. 9. 
 
 {h) Middlemore v. Goodale, 1 Ro. Abr. 521, (K.) pi. 6; Cro. Car. 
 503. 505 ; Sir Wm. Jones, 406 ; Campbell v. Lewis, 3 Barn. & Aid. 
 392 ; Lewis v. Campbell, 8 Taunt. 715. 
 
 (I) A respectable writer has observed, that cestuis que use are gran- 
 tees within the statute 32 Hen. VIIL c. 34; and are therefore entitled 
 to the benefit of £ill covenants entered into by persons selling lands, for 
 securing the title of such lands, 4 Cruise's Dig. p. 80, s. 44. The sta- 
 tute of Henry, however, appears to relate only to covenants which are 
 a charge upon or incident to reversions ; and a purchaser of a reversion 
 
 (301) SeeM'Crady v. Brisbane, 1 Nott & M'Cord, 104. Harri- 
 son v. Sampson, 2 Wash. 155. Woodford's heir v. Pendleton, 1 Hen. 
 & Munf. 303. Capel v. Bull, 17 Mass. Rep. 213. Mitchell v. War- 
 ner, 5 Conn. Rep. 497. 
 
 (*77)
 
 COVENANTS FOR TITLE. oQ 
 
 the covenants relate to the land, it seems that an assignee 
 mav maintain an action on the covenants, although the 
 (*)covenants were entered into with the original grantee 
 and his heirs only(c)(302) ; and the right of action, even 
 for a breach in the ancestor's life-time, will descend to the 
 heir, and not to the executor, where no actual damage was 
 sustained by the ancestor(r/)(303). So covenant will lie 
 
 (c) Co. Litt. 884 b ; 385 a ; Spencer's case, 6 Rep. 16 ; Bally v. 
 Wells, 3 Wils. 25 ; Tatem v. Chaplin, 2 H. Blackst. 133. 
 
 (d) Kingdon v. Nottle, 1 Mau. & Selvv. 355 ; King v. Jones, 6 
 Taunt. 418; 1 Marsh. 107; 4 Mau. & Selw. 188. 
 
 is under this act clearly entitled to the benefit of covenants entered into 
 by a lessee with the vendor, although the estate is vested in him by way 
 of use under the statute of uses ; because this last statute puts him in 
 the place of his feoffee. Lee v. Arnold, 4 Leo. 27 ; S. C. Mo. 97, 
 nom. Appowel t". Monnoux ; Roll v. Osborne, Mo. 859. Where an 
 estate is upon a purchase conveyed to A. to uses, the covenants for 
 title ought to be entered info with ..2. The statute of uses will of course 
 turn the uses into possessions, and the cesiuis que inist will then be 
 deemed assignees, and may take advantage of the covenants by force 
 of the common law, just as if the statute of uses had not been passed, 
 and the estate had been conveyed to them at once by A. This, there- 
 fore, appears to be wholly independent of the statute of 32 Hen. VIIL 
 
 (302) See Litnow v. Ellis, 6 Mass. Rep. 331. 
 
 (303) See contra, Hamillon v. Wilson, 4 Johns. Rep. 72. This 
 was an action for a breach of the covenant of seisin in a deed, brought 
 by the heir of the grantee against the grantor, for a breach in the life- 
 time of the ancestor; and it was held, thit the action was not sustaina- 
 ble. This decision rests upon the ground, that, as there was a failure 
 of title, the covenant was broken immediately on the execution of the 
 deed, and that the grantee had an immediate and perfect right of ac- 
 tion in his life-time, which went to his personal representatives, and 
 could not descend to the heir. In strict analogy to this principle, it has 
 been decided, that the assignee of a grantee cannot maintain an action 
 against the grantor, for a breach of the covenant of seisin ; because if 
 the grantor has no title, the covenant is broken immediately, and the 
 breach is a noere chose in action, which is incapable of assignment. 
 Greenby V. fTtVcocArs, 2 Johns. Rep. \. J\I itch ell v. Warner, 5 Conn. 
 
 VOL. II, 12 (*7Sj
 
 90 
 
 OF THE CONSTRUCTION OF 
 
 by the devisee of lands in fee, though broken in the testa- 
 tor's life-time(304). For the covenant passes with the land 
 to the devisee, and is broken in the time of the devisee ; 
 for so long as the seller has not a good title there is a 
 continuing breach. And it is not like a covenant to da 
 an act of solitary performance, which not being done, 
 the covenant is broken once for all, but is in the nature 
 of a covenant to do a thing toties quoties, as the exigency 
 of the case may require(e). 
 
 And as covenants entered into by a vendor with a pur- 
 chaser run with the land in the possession of his repre- 
 sentatives or assignees, so on the other hand covenants 
 entered into by a purchaser with the vendor, respecting 
 the land, will also run with the land, and charge the 
 representatives or assignees of the purchaser in respect 
 of it. 
 
 It is not, however, sufficient that a covenant is concern- 
 ing the land ; but in order to make it run with the land, 
 there must be a privity of estate between the covenanting 
 parties(/). Therefore, it seems that if the estate was, 
 (*)at the time of the conveyance, mortgaged in fee, and 
 the purchaser should enter into a covenant respecting the 
 land with the vendor, the covenant would not bind the 
 assignees of the land, but would be a mere covenant un 
 gross; for the vendor would, in contemplation of law,, 
 
 (e) Kingdon v. Nottle, 4 Mau. & Selvv. 53. 
 
 (/) Per Lord Kenyon, Webb v. Russell, 3 Term Rep. 393 ; Stokes 
 V. Russell, ibid. 678 j affirmed in the Exchequer Chamber, 1 IL 
 Blackst. 362; see 3 Barn. & Adolph. 691. 
 
 Rep. 497. Bickford v. Page, 2 Mass. Rep. 455. See farther, Mars- 
 ton V. Hobbs, 2 Mass. Rep. 433. Bennett v. Jrwin^ 3 Johns. Rep. 
 365. Pollard v. Dwight, 4 Cranch, 430. Mitchell v. Hazen, 4 
 Conn. Rep. 495. Davis v. Lrjman, 6 Conn. Rep. — 
 
 (304) See Mitchell v. Warner, 5 Conn. Rep. 606. Per HOSMER, 
 Ch. J. 
 (*79)
 
 COVENANTS FOR TITLE. 
 
 91 
 
 be a mere stranger, and consequently there could be no 
 privity of estate between him and the purchaser(305). 
 
 And even where there is a privity of estate at the time 
 of the covenant, yet if a subsequent purchaser do not 
 take the estate of the original purchaser, he will not be 
 bound by the covenant. It seems difficult to conceive 
 that this case can exist. It occurred, however, in the 
 late case of Roach v. Wadham(^) ; an estate was con- 
 veyed to such uses as the purchaser should appoint ; and 
 in default of appointment, to himself in fee, yielding and 
 paying to the vendors, their heirs and assigns, a perpetual 
 . fee-farm rent, which rent the purchaser, for himself, his 
 I heirs and assigns, covenanted to pay ; the estate was 
 afterwards conveyed to a purchaser ; and as it was holden 
 that the purchaser was in under the power, and not by 
 virtue of the first purchaser's estate, it was admitted, on- 
 all hands, that an action brought against him by the ori- 
 ginal vendor, for the fee-farm rent, was not maintainable, 
 for he had not the estate of the first purchaser, but took 
 as if the original conveyance had been made to himself. 
 This decision leads to the observation, that wherever a 
 purchaser is to enter into a covenant, which it is intended 
 shall run with the land, the vendor ought to insist upon 
 the purchaser taking a conveyance in fee, and should . 
 not permit the estate to be limited to the usual uses to 
 bar dower. 
 
 The proposition before stated, that it is not sufficient 
 that a covenant is concerning the land, but, in order to 
 (*)make it run with the land, there must be a privity of 
 estate between the covenanting parties, seems to apply as 
 
 ig) 6 E'ast, 289. 
 
 (305) See JVesbit v. JVesbit, Cam. & Nor. 318, 324. Mitchell v. 
 Warner, 5 Con. Rep. 497. Lienow v. Ellis, 6 Mass. Rep. 332. Bun- 
 bar V. Jumper, Assignee of Thompson, 1 Yeates, 74. 
 
 (*80)
 
 92 
 
 OF THE CONSTRUCTION OF 
 
 well to covenants entered into by a vendor, as to cove- 
 nants entered into by a purchaser. But the consequences 
 of this doctrine are truly alarming. In a great proportion 
 of cases, the vendor has either mortgaged the estate in fee, 
 or is a mere cestui que trust ; and if his covenants were to 
 be deemed covenants in gross, the assignees of the land 
 could only compel performance of the covenants by the 
 circuitous mode of using the name of the first purchaser 
 or his representatives, whom at the distance of some years 
 it might be very difficult to trace. 
 
 It seems impossible to get over the objection, by the 
 form of the covenant ; for although the vendor covenant 
 with the purchaser, his heirs and assigns, yet the assignee 
 of the lands will not be entitled to the benefit of the cove- 
 nant, unless it run with the land under the general rule of 
 Iaw(A)(306). The only mode by which the difficulty can 
 be avoided is, to require the vendor to take a conveyance 
 to himself in fee, or to the usual uses to bar dower, pre- 
 viously to executing a conveyance to the purchaser ; and 
 this, I believe, has been sometimes done since it was first 
 suggested in this work. If, indeed, the objection should 
 be thought to exist, it might also be thought, that where 
 the vendor conveys the estate to the purchaser under the 
 usual power of appointment, the covenants will not run 
 with the land : but this, it is conceived, would be carry- 
 ing the rule much too far ; and there seems to be some 
 ground to contend, that even in Roach v. Wadham, as 
 the power was coupled with an interest, the second pur- 
 chaser might have been held to have come in under, and 
 to stand in the place of the first purchaser, so as to satisfy 
 the rule of law, although he did not actually, as it was 
 
 (h) See Tempest's case, Clayt. 60 ; and see Palm. 358, and Roach 
 V. Wadham, ubi sup. 
 
 (306) See Greenby v. JVilcocks, 2 Johns. Rep. 4, 5.
 
 COVENANTS FOR TITLE. 
 
 93 
 
 (*)determmecl, take the estate of the first purchaser(i). 
 The point, however, was considered as clear, and was 
 not discussed either at the bar or upon the bench(I). 
 
 SECTION II. 
 Of their general Construction. 
 
 It hath already been observed(A;), that the covenants 
 usually entered into by a vendor seised of the inherit- 
 ance, are, 1st, that he is seised in fee : 2dly, that he has 
 power to convey : 3dly, for quiet enjoyment by the pur- 
 chaser, his heirs and assigns : 4thly, that the land shall 
 be holden free from incumbrances : and lastly, for further 
 assurance. 
 
 The five covenants are several and distinct, but the 
 first and second of them are synonymous ; for if a man be 
 seised in fee, he has power to sell(/). But the converse 
 of this proposition is not universally true(w). 
 
 A man having merely a power to appoint an estate, 
 
 (i) See and consider Co. Litt. 215 b. s. 10 ; Glover i'. Cope, 1 Show. 
 284 ; Hmd v. Fletcher, Doug). 43 ; Duke of IMarlborough r. Lord 
 Godolphin, 2 Yes. 61 ; and see 3 Wills. 26, at the bottom. 
 
 (k) Supra, ch. 9. 
 
 (/) Nervin v. Munns, 3 Lev. 47 ; Browning v. Wright, 2 Bos. & 
 Pull. 13. 
 
 (m) See 4 Cruise's Dig. 78, s. 30. 
 
 (I) As the case of the Duke of Bedford v. the Trustees of the British 
 Museum, which contains some important doctrine on this head, has not 
 been reported, I have extracted the material points from the briefs 
 and shorthand writer's notes. App. No. 22. 
 
 (*81)
 
 g^ OF THE CONSTRUCTION OF 
 
 cannot be said to be seised in fee of the estate, although 
 he has a right to convey : and accordingly, in cases of 
 this nature, it is usual to omit the first covenant, and to 
 insert a covenant that the power was well created, and 
 is not suspended or extinguished. 
 
 (*)Covenants for title are either general and unlimited, 
 extending to the acts of all the w^orld, or limited and re- 
 stricted to the acts of certain persons named in the deed ; 
 and under this branch of our subject we may consider, 
 1st, to what and against whose acts general and limited 
 covenants extend : 2dly, in what cases restrictive words 
 shall or shall not extend to all the covenants in the deed : 
 and odly, to what remedy a purchaser is entitled under 
 covenants for the title, in case he is evicted, or the title 
 prove bad. 
 
 I. First then, 1. Although covenants are general and 
 unlimited, and are not restricted to the acts of persons 
 claiming lawfully, yet it is now, perhaps, settled («), 
 although the contrary was formerly holden(o), that such 
 a covenant shall not extend to a tortious eviction, but to 
 evictions by title only(307) ; because the law itself de- 
 
 (n) Dudley v. Foliott, 3 Term Rep. 584. See Dy. 238 a, marg. ; 
 and Crosse v. Young, 2 Show. 425, and the cases cited in the note to 
 3 Term Rep. 587 ; in some of which, however, the point was not decid- 
 ed, but a distinction was taken between express and implied covenants. 
 
 (o) Mountford v. Catesby, Dy. 328 a. See 1 Ro. Abr. 430, pi. 12 ; 
 Shep. Touch. 166, 170 ; Anon. 1 Freem. 450, pi. 612 ; Anon. 2 
 Ventr. 46 ; Anon. Loft. 460. 
 
 (307) See Greenbij v. Wilcocks, 2 Johns. Rep. 4. Vanderkarr v. 
 Vmiderkarr, 11 Johns. Rep. 122. Kent v. TFe/c/i, 7 Johns. Rep. 258. 
 Foillard v. Wallace, 2 Johns. Rep. 395. Sedgwick v. Hollenhack, 7 
 Johns. Rep. 376. Twanley v. Henhij, 4 Mass. Rep. 442. J\Iarston v. 
 Hobbs, 2 Mass. Rep. 433. Bearce v. Jackson, 4 Mass.j Rep. 408. 
 Hamilton v. Cutts, 4 Mass. Rep. 349. Duvall v. Craig, 2 Wheat. 45, 
 61. Pringlev. Wittens^ Exr's. 1 Bay. 254. Yancij \. Leivis, 4 Hen. 
 & Munf. 390. Mitchell v. Warner, 5 Conn. Rep. 497. Ker v. Shau; . 
 13 Johns. Rep. 236. 
 
 (*82)
 
 COVENANTS FOR TITLE, g^ 
 
 fends every one against a wrongful entry ; and, therefore, 
 if a purchaser be disturbed in his possession by a person 
 having no title, he has a remedy at law against the wrong 
 doer ; and if he be legally evicted, he may recover against 
 the vendor, in an action on the covenant. Lord C. J. 
 Vaughan(p) adduces the four following reasons why the 
 covenants should not extend to tortious evictions : 1. It 
 is unreasonable, as the vendor cannot prevent the entry ; 
 2. the vendee has his remedy against the wrong-doer, and 
 therefore ought not to charge an innocent person ; 3. the 
 vendee would have a double remedy for the same injury ; 
 (*)4. it might open a door to fraud, for the purchaser might 
 secretly procure a stranger to make a tortious entry, that 
 he might charge the covenantor with an action. And 
 there is a case in the year-books in the reign of Hen. 8. 
 where the question was, whether a general covenant in 
 a lease should extend to an eviction by one who had no 
 right. Engleheld said, that he should not have a writ of 
 covenant against his lessor when he is ousted by tort, for 
 there is no mischief, because he may have a writ of tres- 
 pass, or an ejectione firmce against the person who ousted 
 him ; but if he was ousted by one who had a title para- 
 mount against whom he could have no relief, then he may 
 have a writ of covenant against his lessor. Quod fuit 
 concessum per plusieurs(q). 
 
 2. But where a vendor covenants to indemnify a pur- 
 chaser against a particular person by name, there the 
 covenant shall extend to an entry by that person, be it 
 by droit or tort, for it is to be presumed that such person 
 had an interest(r). 
 
 (p) Vaugh. 122. 
 
 iq) T. 26 H. 8, pi. 11. 
 
 (r) Foster v. Mapes, Cro. Eliz. 212 ; Hob. 35 ; 1 Ro. Abr, 430, pi. 
 13. See Hayes v. Bickerstaff, Vaugh. 1 18 ; Nash i». Palmer, 5 Mau, 
 & Selw. 374. Fowle v. Welsh, 1 Barn. & Cress. 29 ; 2 Dowl. & Ryl. 
 133. 
 
 (*83)
 
 96 
 
 OF THE CONSTRUCTION OF 
 
 3. And where the covenantor himself does any act 
 asserting a title, it will be a breach of the covenant, 
 although he covenanted against lawful disturbances only, 
 and the act done by him was tortious, and might be the 
 subject of an action of trespass(5)(308). The contrary, 
 however, was formerly holden(i). It must, nevertheless, 
 be an act asserting a title ; therefore, if the seller went 
 on the estate to sport, the purchaser could not maintain 
 covenant(w). 
 
 (*)4. So a covenant against all claiming or pretending 
 to claim any right extends to a tortious eviction(u). 
 
 5. And whatever opinion may anciently have been en- 
 tertained(a;), yet it is now clear, that a suit in equity, by 
 which the purchaser is disturbed, is within a covenant for 
 quiet enjoyment against disturbances generally(2/). It 
 is, however, customary to expressly extend covenants for 
 title to equitable charges, disturbances, &c. 
 
 6. In a case where the seller covenanted generally that 
 he was seised in fee, without any condition, &c. or any 
 other estate, matter, cause, restraint, or thing whatsoever, 
 whereby to alter, bar, change, charge, burthen, impeach, 
 incumber or determine the same, and had good right to 
 convey the same ; it appeared that the lady of the manor 
 had actually demised a small part of the land sold for 
 ninety-nine years, determinable on lives, and the lessees 
 had entered and continued to enjoy the estates. It was 
 
 (s) Lloyd V. Tomkies, 1 Term Rep. 671 ; Crosse v. Young, 2 
 Show. 425 ; S. C. MS. 
 
 {t) Davie v. Sacheverell, 1 Ro. Abr. 429, pi. 7. 
 
 («) See Seddon v. Senate, 13 East, 72. 
 
 iv) Chaplain v. Southgate, 10 Mod. 384 ; Com. 230; Perry v. Ed- 
 wards, 1 Str. 400. 
 
 {x) Selby r. Chute, Mo. 859; 1 Brownl. 23; Wince, 116 ; 1 Ro. 
 Abr. 430, p. 15 ; and see 3 Leo. 71, pi. 109. 
 
 (y) Calthorp v. Hayton, 2 Mod. 54 ; Hunt v. Danvers, T. Raym. 370. 
 
 (308) See Sedgwick v. Hollenback, 7 Johns. Rep. 376. 
 
 (*84)
 
 COVENANTS FOR TITLE. 
 
 97 
 
 held that the lease was made by mistake, and did not 
 amount to a disseisin, and that the covenant did not 
 extend to the leases. It was asked, what can a man be 
 supposed to covenant against beyond the validity of the 
 title ? and most assuredly not against these surreptitious 
 pocket leases. The action of covenant, it was added, only 
 extended to the consequence of legal acts, and the reason 
 is to be found in the case of Hayes v. BickerstafF, that the 
 law shall never judge that a man covenants against the 
 wrongful acts of strangers(2:). 
 
 It will be observed, that the leases were accompanied 
 with actual possession by the lessees, who had expended 
 (*)money on the property. They were therefore within 
 the covenant, and unless the covenants were held to ex- 
 tend to them, general covenants for title would be waste 
 paper. — They are always intended to guard against a title 
 adverse to the covenantor's, although it may not be a law"- 
 ful title. Clearly the leases were a charge on the pro- 
 perty at the time of the conveyance, and an ejectment at 
 all events was necessary to dispossess the lessees. They 
 therefore were an incumbrance within the covenant. It 
 is not like the case of interruptions by persons not claim- 
 ing lawfully subsequently to the conveyance. 
 
 7. A covenant for right to convey extends not only to 
 the title of the covenantor, but also to his capacity to grant 
 the estate. Therefore, where, upon a conveyance by a 
 man and his wife, the husband covenanted that they had 
 good right to convey the lands, and the w^ife was under 
 age, the covenant was adjudged to be broken(«). 
 
 In respect to the persons against whose acts limited 
 covenants will extend, it seems that, 
 
 1. A covenant for quiet enjoyment against A. and any 
 
 (z) Jerritt v. Weare, 3 Price, 675. 
 
 (a) Nash v. Ashton, Sir Tho, Jones, 195. 
 
 VOL. 11. 13 (*85)
 
 98 
 
 OF THE CONSTRUCTION OF 
 
 Other person bj his means, title or procurement, is broken 
 by the entry of a person in whose name A. purchased 
 jointly with his own name(6). 
 
 2. In this case Mr. Justice Doddridge put many cases. 
 If a tenant in tail to whom the estate-tail was made, 
 makes an estate and covenants as before, and the issue 
 ousts the covenantee, the covenant is broken, because, 
 being his purchase, the descent to his issue is by his 
 means, although not by his title. But if the issue make 
 an estate and covenant, and the issue of the issue enter, it 
 is not broken, because they are not in by his means, but 
 (*)by descent. But if there be a lessee for life, remain- 
 der over; and the lessee make an estate and covenant, and 
 die, and he in remainder enter, it is not broken, because 
 he is in by the feoffor, not by the lessee. But if a man 
 enfeoff upon condition to be enfeoffed for life, remainder 
 over, there it shall be otherwise, because by his procure- 
 ment and means ; et sic de smilibus. 
 
 3. So if A. covenant for quiet enjoyment against all 
 claiming by, from or under him, a claim of dower by his 
 wife is within the covenant ; but otherwise, if the mother 
 of A. claim her dower, because she does not claim by, 
 from or under him(c). 
 
 4. A covenant for quiet enjoyment against A., or any 
 person claiming under him, extends to a person deriving 
 title under an appointment made by A., by virtue of a 
 power, in the creation of which he concurred, although 
 the estate did not move from A,, and the estate of the 
 appointee is, according to the general rule, considered as 
 limited to him by the deed creating the power. 
 
 This was settled in the case of Hurd v. Fletcher(t?). 
 
 (6) Butler v. Swinnerton, Palm. 339 ; Cro. Jac. 657. Spencer v. 
 Marriott, 1 Barn. & Cress. 467 ; 2 Dowl. & Ryl. 665. S. C. 
 
 (c) Godb. 333 ; Palm. 340. 
 
 (d) Dougl. 43 ; see Evans v. Vaughan, 4 Barn. & Cress. 261 ; 6 
 Dowl. & Ryl. 349. - 
 
 (*86)
 
 [COVENANTS FOR TITLE. g^ 
 
 Sir John Astlej and his wife levied a fine of her estate 
 to the use of Sir John for life, with power of leasing; 
 remainders over, with a joint power of revocation to Sir 
 John and Ladj Astley. They exercised this power, and, 
 subject to the husband's life-estate, and power of leasing 
 and other uses, which aftervA ards determined, limited the 
 estate to Lord Tankerville in tail. Sir John afterwards 
 granted a lease not warranted by the power, and cove- 
 nanted for quiet enjoyment by the lessee, without any 
 interruption by him, or any person or persons claiming, 
 or to claim by, from or under him. Lord Tankerville's 
 remainder in tail having fallen into possession, he evicted 
 the lessee on account of the defective execution of the 
 (*)power, whereupon the lessee brought an action against 
 Sir John's executors ; and it was holden, that Sir John 
 was a necessary party to the second declaration of uses ; 
 and, therefore. Lord Tankerville claimed under him, and 
 the eviction was within the covenant. 
 
 5. It may be proper to mention, that the case of Butler 
 V. Swinnerton, which (to borrow an expression of Lord 
 Kenyon's) is the magna charta of the liberal construction 
 of covenants for title, is also stated in Shep. Touch. 171, 
 which goes on to state, " and so it is also, if A. purchase 
 land of B., to have and to hold to A. for life, the remainder 
 to C. the son of A, in tail, and after A. doth make a lease 
 of this land to D. for years, and doth covenant for the 
 quiet enjoying, as in the last case, and then he dieth ; 
 and then C. doth oust the lessee ; in this case this was held 
 to be 110 breach of the covenant :" and for this position. 
 Swan's case, M. 7 and 8 Eliz. is cited, and no reference 
 is made to any other report of the case. Now this case, 
 as it stands in Shep. Touch, (a book of acknowledged 
 authority) is in direct opposition to the decision in Butler 
 V. Swinnerton ; but from other reports of Swan's casc(e), 
 
 (c) Mo. 74, pi. 201 ; Dy. 257, pi. 13; Bcndl. 138, pi. 208; mid 
 And 12, pi. 25. 
 
 (*87)
 
 1QQ OF THE CONSTRUCTION OF ; 
 
 it appears that there was no actual covenant in the lease, 
 but merely a covenant in law on the words " concessit et 
 dimisit,^^ and therefore the Judges thought the action did 
 not lie, because the covenant determined with the estate 
 ot the lessee. 
 
 6. A covenant for quiet enjoyment, quietly and clearly 
 acquitted of and from all grants, fee. rents, rent-charges, 
 &c. whatsoever, has been holden to extend to an annual 
 quit-rent payable to the lord of the manor, and incident to 
 the tenure of the lands sold, although there was no arrear 
 oftherentdue(/X311). 
 
 7. A covenant for quiet enjoyment against any inter- 
 ruption (*)of, from or by the vendor or his heirs, or any 
 person \^ homsoever, legally or equitably claiming, or to 
 claim any estate, &c. in the premises, by, from, under or 
 in trust for him or them, or by, through or with his or 
 their acts, means, default, privity, consent or procure- 
 ment, was adjudged to extend to an arrear of quit-rent 
 due at the time of the conveyance, although it was not 
 shown that the rent accrued due during the time the 
 vendor held the estate. For the Court said, if it were in 
 arrear in his life-time, it was a consequence of law, that 
 it was by his default ; that is, by his default in respect of 
 the party with whom he covenants to leave the estate 
 unincumbered(g). 
 
 In this case it was argued by the counsel for the ven- 
 dor, and apparently on very solid grounds, that to make 
 the vendor liable to the arrear of this rent, under his 
 covenant, would be tantamount to a decision that the 
 covenant, although limited, should extend to the acts of 
 all the world. The clear intention of the parties was, 
 
 (/) Hammond v. Hill, Com. 180, 
 
 {g) Howes V. Brushfield, 3 East, 491. See and consider Lord AI- 
 vanley's judgment in Hesse r. Stevenson, 3 Bos. Si Pull. 665. 
 
 (311; See J^/'ew-York Corporation v. Cashman^ 10 Johns. Rfp. 96.
 
 COVENANTS FOR TITLE. -JQJ 
 
 that the vendor should covenant against his own acts 
 only ; and yet it should seem that the argument of the 
 Court would apply as well to a mortgage, or any other 
 incumbrance created by a prior owner, as to an arrear of 
 quit-rent, in payment of which a former occupier made 
 default. — The reader should be cautious how he applies 
 this decision to cases arising in practice, as it may lead 
 him to draw conclusions not authorized by prior deci- 
 sions. 
 
 8. We should be careful to distinguish the foregoing 
 case from that(^) where the lessor, reciting that he was 
 seised of an estate of freehold and inheritance in the estate, 
 (*)covenanted for quiet enjoyment against himself, his heirs, 
 &c. or any other person or persons lawfully claiming by, 
 from or under him, &c. or by or through his, their or any 
 of their acts, means, default or procurement. The lessees 
 were evicted by the remainder-man under a settlement, 
 and it appeared that the lessor could have obtained the 
 fee-simple by suffering a recovery. Lord Rosslyn con- 
 sidered it to be clear, that on eviction by any person 
 claiming paramount to the lessor, they must, upon that 
 eviction, have under the covenant in the leases satisfac- 
 tion from his assets. The ground of this opinion must 
 have been, that the eviction was owing to the default of 
 the lessor, in not suffering a recovery. He assumed to 
 be tenant in fee, and the nature of his title rested in his 
 own breast ; whether the default arose from fraud or neg- 
 ligence was to the lessees immaterial. 
 
 9. In Woodhouse v. Jenkins(i), tenant for life and his 
 eldest son remainder-man in tail, demised to A. for 99 years, 
 he being aware of their title, and they covenanted with 
 him for quiet enjoyment against themselves, their heirs 
 
 (/i) Lady Cavan v. Pulteney, 2 Vcs. jun. 544. See Reg. Lib. B. 
 1799, fo. 816. 
 
 ■ t) 9 Bing. 431 ; 2 :>Ioo. & Scott, 599, H. C. 
 
 (*b9)
 
 2Q2 OF THE CONSTRUCTION OF 
 
 and assigns, and all persons claiming under them. A. 
 granted an under-lease of the estate to B., and covenanted 
 for quiet enjoyment against himself, his heirs, executors, 
 administrators and assigns, " or of or by any other person 
 or persons whomsoever lawfully claiming or to claim by, 
 from or under him, them, or any of them, or by his, their, 
 or any of their acts, means, consent, neglect, default, 
 privity or procurement." The tenants for life and in 
 tail both died, the latter without issue, and B. was evicted 
 by the next remainder-man ; it was held that A, was not 
 liable on his covenant, for the eviction was by a title 
 paramount, which he could not have defeated. The 
 Court observed, that if the eviction could be brought 
 (*) within the terms of the covenant, it must fall within that 
 part of it which provides against any persons claiming 
 " by the acts, means, consent, neglect, default, privity or 
 procurement of A., &;c." It was not an eviction arising 
 from the acts, means, or procurement of the lessor. After 
 referring to the case of Butler and Swinnerton, the 
 Court said, that in the present case, no act was done by 
 the lessor, no consent was given to the eviction, there 
 was no privity, no procurement ; and consequently the 
 only words of the covenant, if any, upon which a breach 
 could be assigned, would be the remaining words, " neg- 
 lect or default." Now it must be admitted that the 
 eviction would have been prevented if A., at the time he 
 took the leases for 99 years, had required the lessors to 
 join in common recoveries to cut off the entails, and if 
 the lessors had complied with such requisition. The 
 question is, therefore, whether the not procuring such 
 common recoveries to be suffered was a " neglect or de- 
 fault" in A., within the meaning of the covenant. And 
 the Court were of opinion that no breach of covenant 
 could be assigned on those words, unless it could be 
 averred in the declaration that A., at the time the leases 
 were made to him, had the power or means of procuring 
 
 (*90)
 
 COVENANTS FOR TITLE. |Q3 
 
 such common recoveries to be suffered by his lessors, 
 the tenants for life and in tail, and that he neglected or 
 omitted so to do. With such an allegation made and 
 proved, an action of covenant might possibly be main- 
 tainable, but not without it. For if A. had no means of 
 compelling common recoveries to be suffered by the 
 lessors, if upon his requisition they refused, it could 
 hardly be said that he was guilty of any neglect or de- 
 fault in not procuring that step to be taken which he 
 was unable to compel. It might indeed show a want of 
 discretion in A., that he took leases under such a de- 
 feasible title ; but a neglect and a default seemed to 
 (*)imply something more than the mere want of discre- 
 tion with respect to his own interests ; something like the 
 breach of a duty or legal obligation existing at the time ; 
 those words, in their proper sense, implying the not 
 doing some act to secure his title which he ought to 
 have done, and which he had the power to do, and the 
 not preventing or avoiding some danger to the title, 
 which he might have prevented or avoided. 
 
 II. We are now to consider in what cases restrictive 
 words added to some of the covenants only, shall extend 
 to all the covenants in the deed. 
 
 It may be first necessary to premise, that where cove- 
 nants are limited to particular acts, as to the acts of the 
 vendor for instance, the covenants are restrained in the 
 following manner : " that for and notwithstanding any 
 act, deed, matter or thing whatsoever, by him the said 
 A., the vendor, made, done, committed or executed, or 
 knowingly or willingly suffered to the contrary thereof," 
 he is seised in fee. And that, " for and notwithstanding 
 any such act, deed, matter or thing whatsoever, as afore- 
 said," he has power to convey. And that the purchaser, 
 his heirs and assigns, shall quietly enjoy " without the 
 interruption, &c. of A. or his heirs, or any person claim- 
 
 (*91)
 
 IQ4 OF THE CONSTRUCTION OF 
 
 ing by, from or under, or in trust for him or them." 
 " And thaf\\) free from incumbrances made or suffered 
 " by A., or any person claiming by, from or under, or in 
 trust for him." And lastly, that "^., and all persons 
 (*)claiming any estate in the premises by, from or under, 
 or in trust for him," shall execute further assurances. 
 But although this is the usual and technical manner of re- 
 straining covenants, yet an agreement, in any part of a 
 deed, that the covenants shall be restrained to the acts of 
 particular persons, will be good, notwithstanding that the 
 covenants themselves are general and unlimited(y)(312). 
 
 2. General covenants will not, however, be cut down, 
 unless the intention of the parties clearly appears(313). 
 
 Therefore, in the case of Cooke v, Fowndes(/c), where 
 the vendor covenanted that he was seised of a good estate 
 in fee, according to the indentwe made to him by B. (of 
 whom he purchased), it was determined to be a general 
 covenant ; for the reference to the conveyance by B. 
 served only to denote the limitation and quality of the 
 estate, and not the defeasibleness or indefeasibleness of 
 the title. 
 
 In a modern case, where, in an assignment of a lease 
 by executors, they had covenanted for quiet enjoyment 
 
 (j) Brown v. Brown, 1 Lev. 57. 
 ik) 1 Lev. 40 ; 1 Keb. 95. 
 
 (I) This pronoun is used emphatically. You shall enjoy the estate, 
 and that free from incumbrances. Dr. Johnson has extracted a pas- 
 sage from the Duty of Man, in which the word is used in the same 
 sense : " We must direct our prayers to right ends ; and that either in 
 respect of the prayer itself, or the things we pray for." It has, how- 
 ever, been thought that the word has crept into the common form of 
 covenants through inadvertence. 
 
 (312) See CoU v. Hawes, 2 Johns. Cas. 203. 
 
 (313) See fVhallon v. Kauffman, 19 Johns. Rep. 97. Jackson v. 
 Stevens, 16 Johrvs. Rep. 110. 
 
 (*-92)
 
 COVENANTS FOR TITLE. -iQe 
 
 without any let, &c. of them, or either of them, their or 
 either of their executors, administrators or assigns, or 
 any other person or persons ivhomsoever, it was insisted 
 at the bar that executors can only l^e understood to 
 covenant against their own acts ; and therefore, that the 
 words " any other person or persons whomsoever," must 
 be restrained to persons claiming under them. And it 
 is, perhaps, not too much to saj, that the opinion of the 
 Court inclined to this construction(/j(314). Wherever, 
 therefore, executors or trustees agree to enter into cove- 
 nants extending beyond their own acts, the agreement of 
 the parties should be distinctly stated in the recitals. 
 
 3. In a case(m) where A. and B. were joint-tenants for 
 '(*)years of a mill, A. assigned all his interest to C, with- 
 out the assent of B., and died. B. afterwards, by inden- 
 ture reciting the lease, and that it came to him by survi- 
 vorship, granted the residue of the term to /. *S'., and co- 
 venanted for quiet enjoyment of it notwithstanding any 
 act done by him. B. also gave the purchaser a bond con- 
 ditional to perform the covenants, grants, articles and 
 agreements in the assignment ; and the purchaser having 
 been evicted by C. of the moiety assigned to him, brought 
 an action on the bond, and obtained judgment. Lord 
 Eldon(/i) seemed to consider the judgment as having 
 turned on the recital, and that the recital itself amounted 
 to a warranty. But the ground of the decision appears 
 to be, that the word grant in the assignment amounted to 
 a warranty of the title, and was not qualified by the en- 
 suing particular covenant, because the grant was of the 
 whole estate, as appeared from the recital, and was de- 
 
 (/) Noble V. King, 1 H. Black. 34. 
 
 (m) Proctor v. Johnson, Yelv. 175 ; Cro. Eliz. 809 ; Cro. Jac, 233. 
 (n) See 2 Bos. & Pull. 25 ; and see Seddon r. Senate, 13 East, 63 ; 
 Barton v. Fitzgerald, 15 East, 530. 
 
 (314) See Thayer v. Wendell, 1 Gallis. 37. 
 
 VOL. II. 14 (*93)
 
 "iQg OF THE CONSTRUCTION OF 
 
 fective from the first as to a moiety, and the condition of 
 the bond was to perform all grants, &c-(315). 
 
 It seems material to refer the case of Johnson v. Proc- 
 tor to the true ground of the decision, because if the case 
 turned solely on the recital, it might perhaps be thought 
 that a general recital in a conveyance of the inheritance 
 of an estate, that the vendor is seised in fee, would amount 
 to a general warranty, and would not be controlled by 
 limited covenants for the title — a proposition which cer- 
 tainly cannot be supported. 
 
 4. Where restrictive words are inserted in the first of 
 several covenants having the same object, they will be 
 construed as extending to all the covenants, although 
 they are distinct. 
 
 Thus, in Nervin v. Munns(o), the vendor covenanted, 
 (*)lst, that notwithstanding any act by him to the con- 
 trary, he was seised in fee : 2dly, that he had good right 
 to convey : 3dly, that the lands were clear of all incum- 
 brances made by him, his father, or grandfather: and 
 4thly, that the vendee should quietly enjoy the estate 
 against all persons claiming under the vendor, his father, 
 or grandfather. And it was holden by three Justices 
 against North, Chief Justice, that the second covenant, 
 although general, was restrained by the first covenant to 
 acts done by the vendor. 
 
 So in Browning v. Wright(p), where a vendor who 
 claimed an estate in fee by purchase, sold the estate, and 
 
 (o) 3 Lev. 46. 
 
 (p) 2 Bos. & Puli. 13. 
 
 (315) See Kent v. Welch, 7 Johns. Rep. 258. See also, Vander- 
 karr v. Vanderkarr, 11 Johns. Rep. 122. Where there is an e.vpress 
 covenant, more limited than the covenant which the law would imply, 
 it will have the effect of restraining the implied covenant. Blair v. 
 Hardin, 1 Marsh. 232. And a particular recital in a deed, cannot be 
 restrained by general words. See Jackson v. Stevens, 16 Johns. Rep. 
 110. 
 (*94)
 
 COVENANTS FOR TITLE. 
 
 107 
 
 covenanted first, that notwithstanding any thing by him 
 done to the contrary, he was seised in fee, " and that he 
 !iad good right, &c. to convey in manner aforesaid," it 
 was holden that the generality of the latter covenant was 
 restrained by the restrictive words in the former. For, in 
 the first place, the purchaser was, according to the general 
 practice, entitled to limited covenants only ; and, in the 
 next place, the special covenants would be of no use, if 
 the other were general. Besides, the defendant having 
 covenanted that, " for and notwithstanding any thing by 
 him done to the contrary," he was seised in fee, and that 
 he had good right to convey ; the latter part of the cove- 
 nant, coupled as it was with the former part by the words 
 *' and that," must necessarily be over-ridden by the intro- 
 ductory words " for and notwithstanding any thing by 
 him done to the contrary(^)." 
 
 Again, where tenant per auter vie leased for twenty- 
 one years, and covenanted that he had not done any act, 
 but the lessee should or might enjoy it during the years ; 
 afterwards, within the twenty-one years, cestui cjue vie 
 (*)died ; and it was adjudged that the covenant was not 
 broken, for " but" referred the subsequent words to the 
 preceding words(r). 
 
 So in Broughton v, Conway(5), a covenant that the 
 vendor had not done any act to disturb the vendee, but 
 that the assignee might enjoy without the disturbance of 
 him or any other person, was held to be confined to acts 
 done by the vendor, on the ground of the latter words 
 being only a continuation of and dependent on the pre- 
 ceding matter. In this case, however, one of the Judges 
 was decidedly of a contrary opinion ; and certainly there 
 
 iq) Pet Lord Alvanley, 3 Bos. & Pull. 574. 
 
 (r) Peles v. Jervies, Dy. 240, marg. ; do. Jac. 615, pi. 5. 
 
 («) Dy. 240 ; Mo. 68 ; and see S. C. cited and applied by Lord 
 Ellenborough, C. J. 8 East, 89 ; and 1 Bnjd. & Bing. 310 ; 3 Moo. 
 730. 
 
 (*95^
 
 1QO OF THE CONSTRUCTION OF 
 
 were express words to get over, namely, " or any other 
 person ;" which circumstance does not occur in any 
 other of this line of cases, in all of which the reader will 
 perceive, that no word was rendered inoperative, but the 
 introductory clause was merely held to extend over all 
 the distinct covenants, in the same manner as a general 
 introduction to a uill frequently influences the whole 
 will. And in a recent case(^), where the covenants were 
 introduced with the usual words, restricting them to the 
 covenantor's own acts, but the covenants for quiet enjoy- 
 ment ended thus : " of or by the said grantors or any of 
 them, &c. or of or bij any other person or persons what- 
 soever :" and the covenant against incumbrances was 
 general, excepting only a chief-rent ; the Court of King's 
 Bench determined, that the covenant for quiet enjoyment 
 was not restrained by the introductory words of restric- 
 tion, but was general and unlimited. Lord Ellenborough, 
 C. J. in delivering the opinion of the Court, justly laid 
 great stress on the covenant being a distinct covenant 
 (*)from the covenant for title. He said, that it was per- 
 fectly consistent with reason and good sense, that a cau- 
 tious grantor should stipulate in a more restrained and lim- 
 ited manner, for the particular description of title which 
 he purports to convey, than for quiet enjoyment. He may 
 suspect, or even know, that his title is, in strictness of 
 law, in some degree imperfect, but he may at the same 
 time know, that it has not become so by any act of his 
 own ; and he may likewise know, that the imperfection 
 is not of such a nature as to afford any reasonable chance 
 of disturbance whatever to those who should take under 
 it ; he may, therefore, very readily take upon him an in- 
 demnity against an event which he considers as next to 
 impossible, while he chooses to avoid a responsibility for 
 the strict legal perfection of his title to the estate, in case 
 
 {t) Howell r. Richards, 1 i East, 633. 
 (*96 )
 
 COVENANTS FOR TITLE. ] QQ 
 
 it should be found at any period to have been liable to 
 some exception at the time of his conveyance. 
 
 In a later case(?/), where the subject was elaborately 
 discussed, the covenants in an assignment of a leasehold 
 estate were, 1. that notwithstanding any act by the seller, 
 the lease was a good lease ; 2. " and further, that" the 
 purchaser might peaceably enjoy without any interruption 
 from " the seller, his executors, administrators or assigns, 
 or any other person or persons whatsoever having or 
 lawfully claiming, or who should or might at any time 
 or times thereafter, during the said term, have or lawfully 
 claim any estate," &c. in the premises ; and that free from 
 incumbrances by the seller ; and moreover, for further 
 assurance by the seller, his executors and administrators, 
 and all persons claiming by, from, under or in trust for 
 him or them. All the covenants therefore were restricted 
 to the acts of the seller, except the covenant for quiet 
 enjoyment, which in words expressly extended to all man- 
 kind. (*)It was held by three Judges against one, that by 
 construction the covenant for quiet enjoyment was re- 
 strained to persons claiming under the seller, and this 
 case was distinguished from Howell v. Richards, on the 
 ground that there the covenant, respecting incumbrances, 
 contained words as general as the words of the preceding 
 covenant for quiet enjoyment, with one single exception, 
 viz. the chief-rent, which was not an act or default of the 
 party, or of any claiming under him : this exception, 
 therefore, confirmed the generality of all the other words. 
 
 Perhaps we should in this place notice the case of 
 Barton v. Fitzgerald(y). It arose upon covenants in an 
 assignment of a lease. The lease was recited to be for 
 the term of ten years, and the seller assigned the estate to 
 
 («) Nind V. Marshall, 1 Brod. & Bing. 319 ; 3 Moo. 703 ; and see 
 P'oord V. Wilson, 8 Taunt. 643 ; 2 Moo. 592. 
 {v) 15 East, 530 ; see 3 Barn. & Adolph. 195. 
 
 (*97)
 
 no 
 
 OF THE CONSTRUCTION OF 
 
 the purchaser for the residue of that term. The covenants 
 were, first, the common covenant, that the seller had done 
 no act to incumber, except an under-lease ; 2dly, " and 
 also," that the lease was subsisting, and not become void 
 or voidable ; 3dly, for quiet enjoyment against the act of 
 the seller ; and lastly, for further assurance of the seller 
 during the residue of the term. It appeared that the 
 lease was for ten years, if a person should so long live, 
 and he died after the assignment, but before the expira- 
 tion of the ten years, by effluxion of time. And t^e 
 Court of King's Bench held, that the second covenant 
 was general and unlimited, and that by the death of the 
 cestui que vie, the purchaser had a good right of action. 
 The Judges relied principally on the recital. The excep- 
 tion of the under-lease, which was for a term absolute, 
 imported, they thought, that the seller had a right to 
 incumber absolutely for the term stated, and they were of 
 opinion, that all the other covenants would be operative, 
 though the second were construed to be absolute. This 
 (*)case, it will be observed, depended upon very particu- 
 lar circumstances ; independently of ^^ hich it should seem, 
 that the covenant upon which the purchaser recovered 
 would have been restrained by the other covenants. 
 
 5. Butvvhere the ^r^/ covenant is general, a subsequent 
 limited covenant will not restrain the generality of the 
 preceding covenant, unless an express intention to do so 
 appear, or the covenants be inconsistent(316). 
 
 Thus in Gainsford v. Grifiith(a'), on an assignment of 
 a leasehold estate, the vendor covenanted that the lease 
 was a good, certain, perfect and indefeasible lease in the 
 law, and so should remain during the residue of the term, 
 
 (x) 1 Saund. 58 ; 1 Sid. 328. See 2 Bos. & Pull, 23, 25 ; 1 
 Brod. & Bing. 331 ; 3 Moo. 723. 
 
 (316) See Cole v. Hawes, 2 Johns. Cas. 203. 
 
 (*98)
 
 COVENANTS FOR TITLE. ||| 
 
 and that the* purchaser, his executors, administrators and 
 assigns, should quietly enjoy the premises without any 
 let, denial, &c. by the vendor, his executors or assigns; 
 and acquitted or otherwise saved harmless of all incum- 
 brances committed by the vendor. And it was holden, 
 that the generality of the preceding covenant was not 
 restrained by the latter covenant. 
 
 And in Norman v. Foster, Lord C. J. Hale said, — If 
 I covenant that I have a lawful right to grant, and that 
 you shall enjoy, notwithstanding any claiming under me ; 
 these are two several covenants, and the first is general, 
 and not qualified by the second. And to this Wylde, J. 
 agreed, and he said, that one covenant went to the title, 
 and the other to the possession (y). 
 
 So in the late case of Hesse v. Stevenson (2:), where, 
 on an assignment of certain shares of a patent right, the 
 assignor covenanted, that he had good right, &c. to con- 
 vey the shares, and that he had not by any means directly 
 or indirectly forfeited any right or authority he ever had 
 or might have had over the same, it was decided that the 
 (*)generality of the first covenant was not restrained by 
 the latter covenant. Lord Alvanley said, that the cove- 
 nant, instead of being framed in the usual and almost daily 
 words, where parties intend to be bound by their own 
 acts only, viz. " for and notwithstanding any act by him 
 done to the contrary," omitted them altogether. The 
 omission of these words was almost of itself decisive. 
 The attention of the purchaser was not called by any 
 words to the intent of the vendor to confine his covenant 
 to his own acts. The Court ought not to indulge parties 
 in leaving out words which are ordinarily introduced, 
 and by which the real meaning of the parties might be 
 plainly understood. 
 
 (y) 1 Mod. 101. 
 
 (z) 3 Bos. & Pull. 665. 
 
 (*99)
 
 112 
 
 OF THE CONSTRUCTION OF 
 
 6. In Milner v. Horton(«), where the covenants in a 
 conveyance were, 1. for a good title ; 2. right to convey ; 
 3. for quiet enjoyment, restricted to the sellers and per- 
 sons claiming under them ; 4. and that free from incum- 
 brances by the sellers and persons claiming under them ; 
 the Court of Exchequer held, that it was the evident 
 intention of the sellers to bind themselves by the two 
 first covenants, that the vendees should have a good 
 estate in fee simple, so far as rested in them, and therefore 
 considered them qualified by the subsequent covenants. 
 But in Smith v. Compton(6), that case was over-ruled. 
 In the last case the deed was a common conveyance 
 under a power, the creation of which was recited in the 
 usual way. The covenants by the seller were, 1. that 
 the power was in full force ; 2. and that he had good 
 right to appoint and convey ; 3. and further for quiet 
 enjoyment against the seller or any person or persons 
 claiming or to claim by, from or under or in trust for 
 him ; 4. and that free from incumbrances made by the 
 seller, or any other person or persons claiming or to claim 
 (*)by, from, through, under or in trust for him ; and 5. for 
 further assurance by the seller, and all persons claiming 
 or to claim by, from or under or in trust for him ; and it 
 was determined that the second covenant for right to 
 convey was absolute and not qualified by the subsequent 
 covenants. The Court said, that looking at all the cases 
 which were cited for the defendants, there was only one, 
 Milner v. Horton, where a general covenant had been 
 held to be qualified in the manner here contended for, 
 unless there appeared something to connect it with a re- 
 strictive covenant, or unless there were words in the 
 covenant itself amounting to a qualification. It was said, 
 that an absolute covenant for title was inconsistent with 
 
 (a) M'Clel. 647. 
 
 (6) 3 Barn. & Adolph. 189.. 
 
 (*100)
 
 COVENANTS FOR TITLE. 
 
 113 
 
 a qualified one for quiet enjoyment : the Court was not 
 sure that that was so generally ; but that at any rate was 
 an instrument of a particular nature. It began by a state- 
 ment of the specific power vested in the seller, for the 
 disposal of the premises, "which was followed by a cove- 
 nant that the power had not been executed, and by other 
 special covenants, which, in a deed so stating the vendor's 
 title, might, not inconsistently, be introduced at the same 
 time that the vendor covenants generally for right and 
 power to convey. With one exception, there was no case 
 where a general covenant had been held to be qualified 
 by others, unless in some way connected with them. 
 The Court had considered Milner v. Horton a^ain since 
 the argument, and they could not feel themselves bound 
 by its authority : they came therefore to this conclusion, 
 that the covenant declared upon, being unqualified in 
 itself, and unconnected with any words in the qualified 
 covenants, must, in a court of lav/, be regarded as an 
 absolute covenant for title. 
 
 7. And in cases of this nature, as, on the one hand, 
 " ■ a subsequent limited covenant does not restrain a pre- 
 ceding general covenant, so, on the other hand, a preced- 
 ing (*)general covenant will not enlarge a subsequent 
 limited covenant. 
 
 Thus, in Trenchard v. Hoskins(c), a person being 
 seised of an estate granted under letters patent, conveyed 
 it to a purchaser, and in the conveyance the grant from 
 the Crown was recited, and the title was deduced from 
 the grantee to the vendor, who entered into covenants, 
 first, that he was seised in fee ; secondly, that he had 
 good power to convey ; and thirdly, that there was no 
 reversion in the Crown, notivithstanding any act done by 
 him. In grants of lands by the Crown, it is usual to 
 reserve a reversion which the grantee cannot bar. After 
 
 (c) Winch, 91 ; 1 Sid. 328. See 2 Bos. & Pull. 19. 
 
 VOL. 11. 15 (*101)
 
 114 ^^ THE CONSTRUCTION OF 
 
 great difference of opinion on the subject, it seems to 
 have been decided, that the restrictive words to the last 
 covenant did not extend to the two preceding ones ; the 
 Court presuming the intention to be, that the vendor 
 should enter into an absolute covenant for his seisin in 
 fee, in all cases but one ; namely, that he should not be 
 liable on the objection of a reversion existing in the 
 Crown, unless that reversion appeared to have been 
 vested in the Crown by his own act(<^/). 
 
 8. Where the covenants are of divers natures, and 
 concern different things, restrictive words added to one 
 shall not control the generality of the others, although 
 they all relate to the same land(6'). 
 
 Thus, where A. covenanted that he was seised in fee 
 notwithstanding any act done by him, and that the lands 
 were of a certain annual value ; the latter was holden to 
 be an absolute covenant, that the lands were of the 
 stated va\ue(f). 
 
 (*)So in another case(^), where a man covenanted that 
 he was seised in fee, notwithstanding any act done by 
 him or any of his ancestors ; and that no reversion was 
 in the king or any other ; and that the estate was of 
 a certain annual value ; and that the plaintiff and his 
 heirs should enjoy the estate discharged from all incum- 
 brances made by him or any of his ancestors, it was 
 decided, that the covenant as to value was an absolute 
 and distinct covenant, and had no dependence upon the 
 first part of the covenant. 
 
 9. In the case of Rich v. Rich(A), a covenant " that 
 lands were of the value of 1000/. per annum, and so 
 should continue, notwithstanding any act done or to be 
 
 (d) See 2 Bos. & Pull. 25, per Lord Eldon. 
 
 (e) See 3 Lev. 47. 
 
 (/) Hughes V. Bennett, Cro. Car. 495 ; 1 Jones, 403, S. C. 
 {g) Crayford v. Ciayford, do. Car. 106. 
 (A) Cro. Fliz. 43. 
 (*102)
 
 COVENANTS FOIl TITLE. -j i r 
 
 done by the covenantor," was holden to be only a cove- 
 nant that the covenantor had not lessened the value. 
 
 10. This subject must not be closed without observing, 
 that if general covenants are entered into contrary to the 
 intention of the parties, equity will, on sufficient proof, 
 correct the mistake in the same manner as errors are 
 corrected in marriage articles, and will relieve against 
 any proceedings at law upon the covenants, as they 
 originally stood(2). 
 
 III. 1. It still remains to say a few words concerning 
 a purchaser's remedy under covenants for the title ; and 
 first, if he be evicted, and the eviction is within the 
 covenant, he may bring an action at law for damages. 
 
 2. But, as we have already seen, unless the eviction 
 be within the covenant, or there was a fraudulent con- 
 cealment of the defect, a purchaser cannot recover the 
 (*)purchase-money, in case of eviction, either at law or in 
 equity (/c). 
 
 3. If the title prove bad, a purchaser may have recourse 
 to law for damages, or if the defect can be supplied by the 
 vendor, he may file a bill in equity for a specific perform- 
 ance of the covenant for further assurance. And a vendor 
 who has sold a bad title, will, under a covenant for fur- 
 ther assurance, be compellable to convey any title which 
 he may have acquired since the conveyance, although 
 he actually purchased such title for a valuable considera- 
 tion(/). But after a conveyance executed, a bill cannot 
 be filed for compensation(317). 
 
 (t) Coldcotti). Hill, 1 Cha. Ca. 15; 1 Sid. 328, cited; Fielder v. 
 Studly, Rep. temp. Finch, 90. See 2 Bos. & Pull. 26 ; 3 Bos. & Pull. 
 575 ; and supra, Vol. 1, p. 161. 
 
 (k) Supra, Vol. 1, p. 654. 
 
 (/) Taylor r. Debar, 1 Cha. Ca. 274; 2 Cha. Ca. 212. See Sea- 
 bourne V. Powell, 2 Vern. 11 ; and seech. 16,-s. 10, infra. 
 
 (.317) See M' Williams v. .Yisleij, 2 Serg. & Rawle, 515. 
 
 (M03)
 
 j !/> OF THE CONSTRUCTION OF 
 
 4. It seems that, under a covenant for further assurance, 
 a purchaser may require a dujDlicate of the conveyance 
 to be executed to him, in case he is compelled to part 
 with the original to a purchaser from him of part of the 
 estate(m) ; but it may be doubted whether he can require 
 a covenant to produce the title-deeds if the purchase was 
 completed without such a covenant(w). 
 
 5. So if the vendor become bankrupt, the purchaser 
 may call upon his assignees to execute further assurances, 
 although the vendor was only tenant in tail, and did not 
 suffer a recovery(o)(I). 
 
 6. But if the original contract was not fit to be exe- 
 cuted by equity, the Court will not interfere in behalf of 
 the purchaser, leave him to but his remedy at law(p)(318). 
 And if the title prove bad, and the purchase was made at 
 (*)a great undervalue, equity will relieve the vendor 
 against an action on the covenants for title, allowing the 
 purchaser his purchase-money, with interest only, he dis- 
 counting the mesne profits(^). 
 
 7. An action for breach of a covenant for title(r) will 
 not be barred by the bankruptcy and certificate of the 
 covenantor, although the cause of action accrued before 
 the bankruptcy. 
 
 8. An action of covenant did not lie against a devisee 
 upon the statute of fraudulent devises(5). No such re- 
 
 (m) Napper v. Lord Allington, 1 Eq. Ca. A.br. 166, pi. 4. 
 (») Fain v. Ayers, 2 Sim. & Stu. 533. See Hallett v. Middleton, 
 1 Russ. 243. 
 
 (0) Pye V. Daubuz, 3 Bro. C. C. 596. 
 ip) Johnson «. Nott, 1 Vern. 271. 
 (q) Zouch V. Swaine, 1 Vern. 320. 
 
 (r) Hammond v. Toulmin, 7 Term Tep. 612 ; Mills v. Auriol, 1 
 Hen. Blackst. 433. 
 
 (*) 3 W. & M. c. 124 ; Wilson v. Knubley, 7 East, 128. 
 
 (1) See now 3 & 4 Will. 4, c. 74, s. 55 to 69. 
 
 (318) See Sims's Admr v, l/ewis'^s Exr. 6 Munf. 31. 
 (*104)
 
 COVENANTS FOR TITLE. 
 
 117 
 
 medy lies at common law, and therefore, although a ven- 
 dor died seised of real estates, yet if they were devised 
 by his will, a purchaser would not have any remedy 
 against them, notwithstanding that the covenants for title 
 were broken, and there was no other fund to which he 
 can resort for damages. This is now remedied by the 
 1 W. 4, c. 47, which(i!) expressly extends the provisions 
 of the former statute to the case of covenants. 
 
 Lastly, the purchaser is not bound to give notice of an 
 adverse suit to the covenantor ; but if he compromise it, 
 may recover the whole sum paid and his costs between so- 
 licitor and client, if the claim was within the covenant. 
 The only effect of want of notice in such a case as this is, 
 to let in the party who is called upon for an indemnity, to 
 show that the plaintiff has no claim in respect of the al- 
 leged loss, or not to the amount alleged, that he had made 
 an improvident bargain, and that the defendant might have 
 obtained better terms if the opportunity had been given 
 to him. But that must be proved(M). 
 
 (0 s. 3 ; see 3 & 4 W. 4, c. 104. 
 
 («) Smith V. Compton, 3 Barn. & Aid. 407.
 
 I l'8 J 
 
 (*)CHAPTER XIV. 
 
 OF THE PERSONS INCAPABLE OF PURCHASING. 
 
 Under this head we may consider, 1st, Who are in- 
 capable of purchasing absolutely for their own benefit by 
 the general rules of law : and, 2dly, Who are incapable 
 of purchasing particular property, except under particular 
 restraints, on account of the rules of equity. 
 
 SECTION I. 
 
 Of Persons incapable of Purchasing by the general 
 Rules of Law. 
 
 This incapacity is of three kinds: 1st, An absolute 
 incapacity : 2dly, An incapacity to hold, although an 
 ability to purchase : and, 3dly, An incapacity to pur- 
 chase, except sub modo. 
 
 I. First then, With respect to persons who are altoge- 
 ther incapable of purchasing. 
 
 The parishioners, or inhabitants of any place, or the 
 churchwardens, are incapable of purchasing lands(a) by 
 those names. 
 
 But it seems that in London the parson and church- 
 Co) Co. Litt. 3 a. M 
 (*105) 1
 
 OF THE PERSONS INCAPABLE OF PURCHASING. 
 
 119 
 
 wardens are a corporation to purchase lands(6). And 
 churchwardens and overseers are enabled, by statute 
 (*)law(c), to purchase a workhouse for the poor, but this 
 is merely as trustees, and does not affect the general rule 
 of law. 
 
 II. With respect to persons who are capable of pur- 
 chasing, but incapable of holding : They are, 
 
 1st, Aliens : for although they may purchase, yet it can 
 only be for the benefit of the king : and upon an office 
 found, the king shall have it by his prerogative(rf)(319). 
 And it seems that an alien cannot protect himself by 
 taking the conveyance in the name of a trustee, for the 
 mischief is the same as if he had purchased the lands 
 himself(e)(320). 
 
 But if an alien be made a denizen by the king's letters 
 patent, he is then capable of holding hnds(f) purchased 
 after his denization. 
 
 (6) Warner's case,Cro. Jac. 532 ; Hargrave's n.(4) to Co. Litt. 3 a. 
 (c) 9 Geo. 1, c. 7, s. 4. ^ 
 {d) Co. Litt. 2 b. 
 
 (e) The King v. Holland. All. 14 ; Sty. 20, 40, 76, 84, 90, 94 ; 1 
 Ro. Abr. 194, pi. 8. 
 
 (/) Co. Litt. 2 b. - - 
 
 (319) See Orr v. Hodgson, 4 Wheat. 460. Jackson v. Lunn, 3 
 Johns. Cas. 109, 113. Storer v. Baison, 8 Mass. Rep. 445. Clifton 
 V. Halg's Exrs. 4 Des. 335. Jackson v. Beach, 1 Johns. Cas. 399. 
 Fairfaxes Dev. v. /TwH/er's Les. 7 Cranch, 603. Craig v. Leslie, 3 
 Wheat. 663, 689. Craig- v. Radford, 3 Wheat. 694. Sheaffe v. 
 OWeal, 1 Mass. Rep. 266. Fox v. Soulhack, 12 Mass. Rep. 143. 
 J\TCreerifs Les. v. Wilson, 4 Har. & M'Hen. 412. Doe v. Ho7iii- 
 6/ea, 2 Hayw. 37. Hunts. Warnicke, H^xdin, 61. Where a person 
 dies, leaving issue, who are aliens, they shall not be deemed his heirs at 
 law ; but the estate will descend to the next of kin. Orr v. Hodgson, 
 4 Wheat. 461. See further, as to this point, Jackson v. Jackson, 7 
 Johns. Rep. 214. 
 
 (320) See Craig v. Leslie, 3 Wheat. 676. et seq, 
 
 (*106)
 
 120 ^^ '^^^ PERSONS INCAPABLE 
 
 And it seems, that if an alien purchase lands, and be- 
 fore office found the king make him a denizen hy letters pa- 
 tent, and confirm his estate, the confirmation will be good ; 
 as the land is not in the king till office found(g)(321). 
 
 2dly, Persons who have committed felony or treason, 
 or have been guilty of the offence of prcemunire, and 
 afterwards purchase lands, and then are attainted ; for 
 they have ability to purchase, although not to hold ; and 
 for that reason the lord of the fee shall have the lands ; 
 but if they purchase after they are attainted, they are 
 then in the same situation with aliens, and the lands must 
 go to the king(A). 
 
 Lastly, Corporations sole or aggregate, either ecclesias- 
 tical or temporal, cannot hold lands without due license 
 (*)for that purpose(/c)(322) : and the lord of the fee, or in 
 default thereof within the time limited by the statutes, the 
 king may enter(/). 
 
 III. With respect to persons capable of purchasing 
 sub modo : They are, 
 
 1st, Infants under the age of twenty-one years, who 
 may purchase, and at their full age may bind themselves 
 by agreeing to the purchase ; or may wave the purchase 
 without alleging any cause for so doing : and if they do 
 
 (g) Goulds. 29, pi. 4. 
 
 (h) Co. Liu. 2 b. See Rex v. Inhab. of Haddenham, 15 East, 
 463. 
 
 {k) Co. Litt. 99 a. 
 (/) Co. Litt. 2 b. 
 
 (321; See Jackson v. Beachy 1 Johns. Cas. 399. See also, JWeeks 
 V. Richbourg, 1 Rep. Con. Ct. 411. Trustees of Louisville v. Gray, 
 1 Litt. 146. Elmendorfv. Carmichael, 3 Litt. 475. Jackson v. L/unn, 
 3 Johns. Cas. 120. 
 
 (322) See Jackson v. Hartwell, 8 Johns. Rep. 330. 2d edit. Jack- 
 son V. Hammond, 2 Caines' Cas. in Error, 337. Parish in Brunswick 
 V. Dunning, 7 Mass. Rep. 445. 
 
 (*107)
 
 OF PUUCHASING. ]21 
 
 not agree to the purchase after tlieir lull age, their heirs 
 niaj wave the purchase in the same manner as the infants 
 themselves could have clone(m)(323). 
 
 2dlj, Femes covert, who are capable of purchasing, 
 but their husbands may disagree thereunto, and divest 
 , the whole estate, and maintain trover for the purchase- 
 money(«)(324). If a husband neither agree nor disagree, 
 -the purchase by his wife will be effectual ; but after his 
 death she may wave the purchase, without giving any 
 reason for so doing, although her husband may have 
 agreed to it. And if, after her husband's death, she do not 
 agree to it, her heirs may wave it(o). 
 
 A feme covert may, however, purchase lands pursuant 
 to an authority given by her husband, and he cannot 
 avoid it afterwards(p). 
 
 3dly, Lunatics or idiots, who are capable of purchasing ; 
 but although they recover their senses, cannot themselves, 
 it should seem, wave the purchase(9)(325) ; and (*)if 
 they recover and agree thereunto, their heirs cannot set it 
 aside. 
 
 If they die during their lunacy or idiocy, then their 
 
 (m) Ketsey's case, Cro. Jac. 320 ; 1 Ro. Abr. 731, (K.) ; Co. Litt. 
 2 b. See Holmes v. Blogg, 8 Taunt. 508 ; 2 Moo. 552. 
 
 (n) Garbrand v. Allen, 1 Lord Raym. 224. See Francis v. Wig- 
 zell, 1 Madd 258. 
 
 (o) Co. Litt. 3 a ; Barnfather v. Jordan, Dougl. 452, 2d edit. 
 
 (p) Garbrand v. Allen, nhi sup. 
 
 {q) On this point see 2 Blackst. Comm. 291, 7th edit 
 
 (323) See Jackson v. Todd, 6 Johns. Rep. 257. Jackson v. Cai-- 
 penier, 11 Johns. Rep. 539. Jackson \. Biirchin, 14 Johns. Rep. 124. 
 
 Rogers v. Hurd, 4 Day, 57. 
 
 (324) See Baxter v. Smith, 6 Birin. 427. 
 
 (325) See Webster \. Woodford, 3 Day, 100,101. The English 
 doctrine that a person non compos mentis, shall not be admitted to stulti- 
 fy himself, seems not to be acknowledged in this country. Id. See 
 Millison V. JVicholson, Cam. & Nor. 499. 
 
 VOL. II. 16 (*108)
 
 122 
 
 OF THE PERSONS INCAPABLE 
 
 heirs may avoid the purchase(r)(326). And as the king 
 has the custody of idiots, upon an office found he may 
 annul the purchase(5) : and after the lunatic is found so 
 by inquisition, his committee may vacate the purchase(i). 
 
 Lastly, under this head we might formerly have ranked 
 papists and persons professing the popish religion(?f), 
 w^ho had neglected to take the oath prescribed by the 
 31 Geo. 3, c. 32(x). For a papist took for the benefit 
 of his protestant next of kin till his conformity ; for the 
 benefit of himself after his conformity ; and for the be- 
 nefit of his heir after his death — Nay, for the benefit of 
 himself, during his life and non-conformity, by reason of 
 the action which was given him ; and might therefore be 
 said to be capable of purchasing sub modo(y). 
 
 But by the 10 Geo. 4, c. 7, s. 23, it was enacted, that 
 after the passing of that Act no oath or oaths should be 
 tendered to or required to be taken by his Majesty's sub- 
 jects professing the Roman-catholic religion, for enabling 
 them to hold or enjoy any real or personal property, other 
 than such as might by law be tendered to and required to 
 be taken by his Majesty's other subjects. 
 
 (r) Co. Litt. 2 b. 
 (s) Co. Litt. 247 a. 
 
 (t) Clerk by Committee v. Clerk, 2 Vern. 412; Addison by Com- 
 mittee V. Dawson, 2 Vern. 678 ; Ridler v. Ridler, 1 Eq. Ca. Abr. 279. 
 (tt) See 11 & 12 W. 3, c. 4 ; Michaux v. Grove, 2 Atk. 210. 
 (x) See 43 Geo. 3, c. 30. 
 iy) See Mallom v. Bringloe, Willes, 75 ; Com. 570, S. C. 
 
 (326) See Webster \. Woodford, 3 Day, 101.
 
 OF PURCHASING. 
 
 123 
 
 (*;SECTION II. 
 Of purchases by Trustees, Agents, ^c. 
 
 We come now to persons who are incapable of pur- 
 chasing particular property, except under particular re- 
 straints, on account of the rules of equity. 
 
 I. It may be laid- down as a general proposition, that 
 trustees(z)(327) (unless they are nominally such, as trus- 
 tees to preserve contingent remainders(a), agents(6)(328), 
 commissioners of bankrupts(c), assignees of bank- 
 
 (2) Fox V. Mackreth, 2 Bro. C. C. 400 ; 4 Bro. P. C by Tom- 
 lins, 258 ; Hall v. Noyes, 3 Bro. C. C. 483 ; and see 3 Ves. jun. 748 ; 
 Kellick V. Flexny, 4 Bro. C. C. 161 ; Whitcote v. Lawrence, 3 Ves. 
 jun. 740 ; Campbell v. Walker, 5 Ves. jun. 678 ; and Whitackre v. 
 Whitackre, Sel. Cha. Ca. 13. 
 
 (rt) See Parks r. White, 11 Ves. jun. 226. 
 
 (6) York-Buildings Company v. Mackenzie, 8 Bro. P. C. 42 ; Low- 
 ther V. Lowther, 13 Ves. jun. 95. See Watt v. Grove, 2 Scho. & Lef. 
 492 ; Whitcomb r. Minchin, 5 Madd. 91 ; Woodhouse v. Meredith, 1 
 Jac. & Walk. 204. 
 
 (c) Ex parte Bennet, 10 Ves. jun. 381 ; ex parte Durabell, Aug. 13, 
 1806 ; Mont, notes, 33, cited ; ex parte Harrison, 1 Buck, 17. 
 
 (327) See Green v. Winter, 1 Johns. Ch. Rep. 26. Parkisi v. Al- 
 exander, 1 Johns. Ch. Rep. 394. JVlunro v. Allaire, 2 Caines' Cas. in 
 Error, 183. Holridge v. Gillespie, 2 Johns. Ch. Rep. 30. Davoue v. 
 Fanning, 2 Johns. Ch. Rep. 252. Howell v. Baker, 4 Johns. Ch. 
 Rep. 118. Matthews v. Dragaud, 3 Des. 25. Les. of Lazarus v. 
 Brijson, 3 Binn. 54, 59. Jackson v. Van Dalfsen, 5 Johns. Rep. 47. ; 
 and note a. p. 48. JWGuire v. JW'Goioen, 4 Des. 486. Perinj v. 
 Dixon, 4, Des. 504. in note. Moody's Les. v. Vandyke, 4 Binn. 43. 
 
 (328) See Parkist v. Alexander ; Green v. Winter, ut supra. But' 
 ler V. Haskell, 4 Des. 651. Howell v. Baker, 4 Johns. Ch. Rep. 118. 
 
 (*109)
 
 124 
 
 OF THE PERSONS INCAPABLE 
 
 rupts(£/)(I), (*)solicitors to the coiimiission(e), auctioneers, 
 creditors wlio have been consulted as to the mode of 
 sale(/), or any persons who, by their connection with any 
 other person, or by being employed or concerned in his 
 affairs, have acquired a knowledge of his property,) are 
 incapable of purchasing such property themselves ; except 
 under the restrictions which will shortly be mentioned. 
 For if persons having a confidential character were per- 
 
 (d) Ex parte Reynolds, 5 Ves. jun. 707; ex parte Lacey, 6 Ves. 
 jun. 625 ; er parte Bage, 4 Madd. 459 ; ex parte Badcock, 1 Mont. & 
 Mac. 23]. 
 
 (e) Owen r. FoulUes, 6 Ves. jun. 630, n.^(6) ; ex parte Linwood ; 
 ex parte Churchill, 8 Ves. jun. 343, cited; ex parte Bennet, 10 Ves. 
 jun. 381 ; ex parte Dumbel!, Aug. 13, 1806; Mont, notes, 33,^cited' 
 See 12 Ves. jun. 372 ; 3 Mer. 200. 
 
 (/) See ex parte Hughes, 6 Ves. jun. 617; Coles v. Trecothick, 9 
 Ves. jun. 234 ; 1 Smith's Rep. 233 ; Oliver v. Court, 8 Price, 127. 
 
 (I) Lord Eldon has said, that the rule is to be more peculiarly ap- 
 plied with unrelenting jealousy in the case of an assignee of a bank- 
 rupt ; adding, that it must be understood, that, whenever assignees 
 purchase, they must expect an inquiry into the circumstances. See 
 6 Ves. jun. 630, n. (b) ; and 8 Ves. jun. 346 ; 10 Ves. jun. 395. And 
 an assignee purchasing the estate himself, or permitting his co-assignee 
 to purchase it, will be a sufficient cause of removal. Ex parte Rey- 
 nolds, 6 Ves. jun. 707. 
 
 If an assignee purchase an estate .sold under the commission, and 
 upon an accidental increase in the value of the property, he afterwards 
 sells it at a considerable advance, he cannot, upon discovering that he 
 ought not to have been a purchaser, pay the difference of the sales to 
 the general fund of the creditors. Ex parte Morgan, Feb. 24, 1806; 
 Mont, notes, 31. And where upon the sale of a bankrupt's estate by 
 auction, in two lots, both of the lots were bought in by the assignee 
 without the consent of the creditors, the Lord Chancellor, although 
 there was a protit on the resale of one lot, which was more than equal 
 to the loss on the resale of the other, so that the balance was in favor 
 of the estate, held the assignee liable to make good the loss on the lot 
 which was resold at a less sum, without permitting him to set off the 
 profit gained by the resale of the other lot. Ex parte Lewis, 1 Glyn. 
 & Jame. 69. Ex parte Buxton, j7'. dbo. 
 
 (*U0)
 
 OF PURCHASING. 
 
 125 
 
 mitted to avail themselves of any knowledge acquired in 
 that capacity, they might be induced to conceal their infor- 
 mation, and not to exercise it for the benefit of the per- 
 sons relying on their integrity. The characters are incon- 
 sistent. Emptor emit quam minimo potest, venditor vendit 
 quam maxima potest(I)(329). 
 
 (I) This principle has been attended to in the general inclosure act, 
 which renders commissioners incapable of purchasing any estate in the 
 parish in which the lands are intended to be inclosed, either in the 
 names of themselves or others, until five years after the date and exe- 
 cution of the award, 41 Geo. 3, c. 109, s. 2, 
 
 (329) See Daroue v. Fanning, 2 Johns. Ch. Rep. 257 to 271, 
 where the English decisions are reviewed. Green v. Winter, 1 
 Johns. Ch. Rep. 36. Evertson \. Tappen, 5 Johns. Ch. Rep. 497. 
 Hatoley v. J^Iancins, 7 Johns. Ch. Rep. 174. 
 
 The sale to a trustee or agent is not absolutely void ; but may always 
 be avoided by the cestin que trust, or by the principal, unless long ac- 
 quiescence, with knowledge of their rights, warrants a presumption that 
 they approved and ratified the sale. And this extends to the case of a 
 guardian under the act for the partition of lands ; for he who undertakes 
 to act for another, shall not, in the same matter act for himself. The 
 case of Jackson v. Woolsey, 11 Johns. 446, does not impugn this 
 principle ; for in that case it was not the wards who were endeavoring 
 to set aside the sale to their guardian ; and no one but the wards, or a 
 cestui que trust can impeach the sale, unless fraudulent. xV trustee or 
 guardian, however, may purchase under a special decree of the court of 
 Chancery ; and in this way he may acquire a good title. So, the 
 ward may confirm the sale by delay. These principles were recognized 
 in Gallatian v. Cunningham, 8 Cowen, 361, (in error) where it was 
 decided that a purchaser resting his claim in equity on the fact of being 
 a bona fide purchaser, was bound to deny all knowledge of the facts 
 charged ; otherwise evidence will not be admitted to show their igno- 
 rance of the fraud : it is for the person thus claiming, to maintain that 
 he was such purchaser without notice : — and if he, or those claiming 
 under him, do not do so, witnesses shall not do it for them. If a purcha- 
 ser, says Chancellor Kent, in the case of Denning v. Smith, 3 J. Ch. 
 R. 346, " wishes to rest his claim on the fact, he must deny notice, al- 
 though it be not charged in the bill. He must deny every circumstance 
 from which notice could be inferred." And in the the language of 
 senator Colden in the case cited from Cowen, " He must do this, be-
 
 126 ^^ ^^^ PERSONS INCAPABLE 
 
 The able counsel for the appellants in York-Buildings 
 Company v. Mackenzie(g), . strongly observed, that the 
 ground on which the disability or disqualification rests, is 
 (*)no other than that principle which dictates, that a per- 
 
 (g) 8 Bio. P. C. 63, where the authorities in the civil law are col- 
 lected. 
 
 cause want of notice is an essential part of the purchaser's title ; and 
 unless he, or those claiming under him, aver that he had not notice, 
 the title is defective. I wish to establish as a principle, and mean to 
 do it, so far as my opinion can establish any thing, that if a guardian 
 purchases the estate of his ward, without the special permission of a 
 court, the sale may be set aside while the property is in the hands of the 
 guardian, on the application of the ward, within a reasonable time ; and 
 if the guardian makes a conveyance to another person, the property 
 may be claimed in the hands of such person, unless the holder places 
 himself in such a situation, as that a court of equity my consider him a 
 bona fide purchaser without notice." 
 
 The law has wisely forbidden executors and trustees from acting 
 in the double capacity of sellers and purchasers ; especially in a case 
 where the executor had authority by will to sell : and he sold at private 
 sale for the purpose of enabling a third person to reconvey the estate to 
 the executor. The transaction is a legal fraud ; and the purchaser is 
 chargeable with notice of the fraud. The title may be impugned in the 
 hands of such a purchaser. Such a deed is not absolutely void ; 
 and therefore, no party to the deed, or others claiming under them, 
 mjiy be allowed to repudiate it ; neither can strangers avail them- 
 selves of such an objection. It is voidable by the cestui que trust or 
 his heirs. Den v. Wright, 2 Hals. R. 175. And a purchaser with 
 notice is in no better situation than the person from whom he de- 
 rives his title, and is bound by the same equity; Hughes v. Edwards, 9 
 Wheat. 499. 
 
 The principle of courts of equity might be applied to the case of an 
 executor or administrator purchasing, to make the purchaser hold as 
 trustee for the heirs, and to compel him to sell the land and to pay the 
 excess obtained above what he gave for it ; but that proceeds on the 
 ground that the conveyance to the trustee was not void, but voidable by 
 the persons interested in the estate. If they are satisfied with the con- 
 veyance, the validity of it cannot be impeached by a stranger. Har- 
 rington V. Brown, 5 Pick. 619 : Den v. M'Knight, 6 Hals. 585 : Fay 
 V. Hunt, 5 Pick. 398. 
 
 (*111)
 
 OF PURCHASING. i c)^ 
 
 son cannot be both judge and party. No man can serve 
 two masters. He that is intrusted with the interest of 
 others cannot be allowed to make the business an object 
 of interest to himself; because, from the frailty of nature, 
 one who has the power will be too readily seized with the 
 inclination to use the opportunity for serving his own 
 interest at the expense of those for whom he is intrusted. 
 A creditor having taken out execution may buy the 
 estate sold under the execution (/t). Indeed, this was 
 never doubted where the transaction was a fair one. And 
 the rule has never been applied to a purchase by mort- 
 gagee from the mortgagor, and it is to be hoped that 
 it never will. In Ireland, many leases granted by mort- 
 gagors to mortgagees were set aside by Lord Redesdale, 
 on the ground that the transaction was usurious, although 
 that learned Judge's successors have not been inclined to 
 carry the principle as far as he did. In one case(i) it 
 was objected that the decision might tend to impeach 
 dealings between mortgagor and mortgagee for a sale of 
 the equity of redemption(330). But Lord Redesdale said, 
 that to this a good answer was given at the bar. The 
 cases are totally different ; the parties stand in a different 
 relation : if there be two persons ready to purchase, the 
 mortgagee and another, the mortgagor stands equally 
 betw'een them ; and if the mortgagee should refuse to 
 convey to another purchaser, the mortgagor can compel 
 him, by applying the purchase-money to pay off the 
 mortgage. It can therefore only be for want of a better 
 purchaser, that the mortgagor can be compelled to sell to 
 the mortgagee : hut Courts vieio transactions even of that 
 
 {h) Stratford v. Tvvynam, 1 Jac. 418. 
 
 (i) Webb V. Rorke, 2 Scho. & Lef. 673 ; and see 1 Ball & Beatty, 
 164 ; ex parte Marsh, 1 Madd. 148; see Chambers v. Waters, 3 Sim. 
 42. 
 
 (330) See Holridge v. Gillespie, 2 Johns. Ch. Rep. 30.
 
 128 O^ THE PERSONS INCAPABLE 
 
 sort between mortgagor and mortgagee, with considerable 
 (*)jealousy, and will set aside sales of the equity of re- 
 demption, ivhere, by the influence of his incumbrance, the 
 mortgagee has purchased for less than others would have 
 given, and there were circumstances of misconduct in his 
 obtaining the purchase. 
 
 Perhaps the observation, that " Courts view transac- 
 tions even of that sort between mortgagor and mortgagee, 
 with considerable jealousy," puts the doctrine higher than 
 one should wish to see it stand. A sale by a mortgagor 
 to a 'mortgagee stands on the same principle as a sale be- 
 tween parties having no connection with each other, and 
 can only be impeached on the ground of fraud : the mere 
 circumstance that the mortgagee purchased for less than 
 another would have given, would not of itself be a suffi- 
 cient ground to impeach a sale ; and Lord Redesdale, in 
 stating that as an ingredient, adds also circumstances of 
 misconduct in obtaining the purchase. Where a mortga- 
 gee sells under the general order in bankruptcyj it is usual 
 to apply for leave for him to bid at the sale, where he 
 intends to do so. But there he may fairly be considered 
 as the seller, and he cannot, without the leave of the 
 Court, sustain the two characters of seller and buyer(A;). 
 But if a mortgagee take a conveyance with a power of 
 sale, he is a trustee for sale, and as such disabled from 
 purchasing(/)(331). 
 
 The principle has, however, been extended to a pur- 
 chase by an attorney from his client, while the relation 
 subsists(m)(332). 
 
 {k) Ex parte Du Cane,.l Buck, 18. See ex parte Marsh, 1 Madd. 
 148. 
 
 (/) Downes r. Glazebrook, 3 Mer. 200. 
 
 (m) See Bellew v. Russell, 1 Ball & Beatty, 96 ; 9 Ves. jun. 296 ; 
 
 (331) But see Bergen v. Bennett, 1 Caines' Cas. in Error, 1. 
 
 (332) See Wendell v. Van Rensselaer, 1 Johns. Ch. Rep. 360. 
 
 (*112)
 
 OF PURCHASING. |9Q 
 
 So a person chosen as an arbitrator, cannot bu_y up 
 (*)the unascertained claims of any of the parties to the 
 reference : it would corrupt the fountain, and contami- 
 nate the award (w). 
 
 Where a person cannot purchase the estate himself, he 
 cannot buy it as agent for another(o)(333), and perhaps 
 cannot even employ a third person to contract or bid for 
 the estate on behalf a stranger(jt7). 
 
 This general rule stands much more upon general prin- 
 ciple, than upon the particular circumstances of any indi- 
 vidual case. It rests upon this, that the purchase is not 
 permitted in any case, however honest the circumstances ; 
 the general interests of justice requiring it to be destroy- 
 ed in every instance ; as no court is equal to the exami- 
 nation and ascertainment of the truth in much the greater 
 number of cases(<7). 
 
 The necessity of such a general rule is evinced by an 
 instance mentioned by Lord Eldon, of a solicitor under a 
 commission, who finding he could make a bargain to sell 
 the estate for 1,400/. kept that in his own breast, and 
 made a bargain with the assignees for the purchase of it 
 at 350/(r). 
 
 In Davidson v. Gardner(5), Lord Hardwicke laid down 
 the following rules as to a trustee purchasing of his cestui 
 
 13 Ves. jun. 138, as to gifls, which cite the early cases. And see 
 Lord Selsey v. Rhoades, 2 Sim. & Stu. 41 ; Williams v. Llewellyn, 2 
 You. & Jer. 68 ; Champion tJ. Rigby, 1 Russ. & Myl. 539. 
 
 (n) Blennerhasset V. Day, 2 Ball & Beatty, 116; Cane v. Lord 
 AUen, 2 Dow, 2SD. 
 
 (o) See 9 Ves. jun. 248 ; ex parte Bennet, 10 "Ves. jun. 381. 
 
 (p) Soe ex parte Bennet, ubi sup. sed qu. 
 
 (<jf) See 8 Ves. jun. 345, per Lord Eldon. 
 
 (r) See 8 Ves. jun. 349. 
 
 (») Chancery, 21st July 1743, MS. See Prestage r. Langford, 
 infra; Lambert «. Bainton, 1 Cha. Ca. 199. 
 
 (333) See Davoue v. Fanning, 2 Johns. Ch. Rep. 2.V2. 
 
 VOL. n. 17 (*113)
 
 ■tOQ OF THE PERSONS INCAPABLE 
 
 que trust. 1st, That in all cases of a trustee purchasing of 
 the cestui que trust, the Court will look upon it with a jeal- 
 ous eye. Sdly, It has been laid down as a general rule, 
 that where a trustee for persons not sui juris, as infants 
 and femes covert, becomes both buyer and seller, the Court 
 will under no circumstances whatever, be they never so 
 (*)fair between the parties (as consulting the friends of the 
 infant, or of their refusing to purchase, or the like), estab- 
 lish a purchase of that kind, unless the transaction is legi- 
 timated by the act of the Court, or some public act(334). 
 And the reason is, because if such purchases were al- 
 lowed, they would be liable to very great abuses; and 
 this is the reason why the Court will not allow a trustee- 
 any thing for his trouble. So, where a trustee renewed 
 a lease in his own name, though it was ])roved that all 
 the friends of the infant were consulted, and they refused 
 to renew it, the Court decreed it to be in trust for the in- 
 fant, though not the least unfairness appeared ; which was 
 the case of Rumford Market, before Lord King(i). But 
 if a bill is brought, and a sale ordered, and notice of the 
 sale before the Master, and the trustee purchases, the 
 Court has refused to set such sale aside, all the other cir- 
 cumstances being fair. So where there was a public sale 
 of an estate by proclamation in the country; which was 
 the case of Saunders v. Burroughs, before the present 
 Master of the Rolls; but if that had been a private sale, 
 though the consent of all the relations was had, and no 
 unfairness appeared, I think such a sale should be set 
 aside, at least not carried into execution. But it might 
 be inconvenient to extend the riile so far as to prevent a 
 trustee from purchasing of one who was sui juris, where 
 
 (/) Keech V. Sandford, Sel. Cha. Ca. 61. See Lesley's case, 2 
 Freem. 62. 
 
 (334) See Bavoue v. Fanning, 2 Johns. Ch. Rep. 252, 258. Jack- 
 son V. Woolsey, 1 1 Johns. Rep. 446. 
 (*114)
 
 OF PURCHASING. 
 
 131 
 
 no unfairness appeared. And in the principal case, which 
 was of a mixed kind, the defendant who had purchased 
 being a trustee for the plaintifif, who w'as a feme covert, 
 and had the estate to her separate use, and therefore in a 
 court of equity considered as a feme sole, and sui juris, as 
 to the disposal of her estate ; Lord Hardwicke dismissed 
 the bill, which was brought to set aside the assignment 
 she had made of her interest in a brewhouse to the de- 
 fendant ; (*)it appeared that she had received a full value, 
 and no particular instances of fraud being proved. 
 
 From this case it appears that, in the time of Lord 
 Hardwicke, a purchase by a trusteCj even for infants, was 
 deemed good, if the estate was sold by public auction, or 
 before a master ; but a purchase by a trustee, whether for 
 adults or infants, cannot now be supported, although the 
 estate be sold by public anction(M), or before a Master, 
 under a decree for sale(2'). Nor, indeed, ought the pub- 
 licness of the sale to sustain a purchase, which cannot 
 otherwise be supported. For the trustee may know not 
 only the surface value, but that there are minerals, in 
 which case he would buy upon the rent, ajid gain all that 
 advantagef?/). So there may be a great many clan- 
 destine dealings, which may bring it to a price far short 
 of that which would be produced if full information was 
 given(z). 
 
 But under particular circumstances, a purchase by a 
 trustee or agent, before the Master, may be confirmed, 
 although with great reluctance. 
 
 («) York-Buildings Company v. IMackenzie, 8 Bro. P. C. 42 ; Which- 
 cote V. Lawrence, 3 Ves. jun. 740 ; Campbell v. Walker, 6 Ves. jun. 
 678; Sanderson v. Walker, 13 Ves. jun. 601, S. C. ; and ex parte 
 James, S Ves. jun. 337; and see 10 Ves. jun. 393 ; Attorney-General 
 r. Lord Dudley, Coop. 146. 
 
 {x) Price V. Byrn, 5 Ves. jun. 681, cited. See Cary v. Gary, 2 Scho. 
 & Lef. 173. 
 
 (y) See 10 Ves. jun. 394. 
 
 '^^ Sec 8 Ves. jun. 349. * . • 
 
 (*n6)
 
 |02 OF THE PERSONS INCAPABLE 
 
 Thus, in Wren v. Kirton(a), the foots were these : Upon 
 a former sale before the Master, the sum of 23,000/. was 
 bid by a person bidding bona fide. That sale was defeated 
 by setting up a fictitious bidder. Afterwards the lot was 
 ao-ain put up three times. On the two first occasions no 
 more was offered than 12,000/. and 6,000/. At the last 
 sale one Wilson was declared the purchaser at the sum of 
 (*)15,000/. He purchased as trustee for Wade, the agent 
 and manager of the colliery. 
 
 The Lord Chancellor said, if this bad been an original 
 sale, and the agent had purchased in the name of another 
 person, very slight circumstances would have induced 
 him, even at some risk, to set that aside ; as it was the 
 duty of Wade, if he meant to bid, to furnish all the know- 
 ledge he had to those who were to sell. The difficulty that 
 pressed him was, the consequence, the danger of further 
 loss by resale. He would (he added) not hesitate to open 
 the sale if the least advance upon 15,000/. was offered ; 
 but without such an offer there was nothing leading him 
 to suppose it would ever again reach the sum that was 
 originally bid. — The Master's report of the best bidder 
 was, with considerable reluctance, confirmed ; unless, on 
 or before the first seal, an application should be made to 
 open the biddings, giving security to answer the difference 
 between the produce of the resale and the sum of 15,000/. 
 No security was however offered, and the agent com- 
 pleted the purchase. 
 
 In Oldin v. Samborne(6), Lord Hardwicke said, that 
 it was improper for a guardian to purchase his ward's 
 estate immediate!}^ on his coming of age ; but though it 
 has a suspicious look, yet if he paid the full considera- v 
 tion, it is not voluntary, nor can it be set aside. But it 
 seems clear, that such a purchase would now be set aside 
 
 ■a) See S '^''es. jun. 6CVS. 
 (6) 2 Atk. 15.
 
 OF PURCHASING. 
 
 133 
 
 on general principles, without reference to the adequacy 
 of the consideration(c)(335). 
 
 It appears, however, that unless fraud can be proved, 
 the circumstance of the purchaser being related to the 
 trustee, agent or other person having a confidential cha- 
 racter, (*)cannot even be opposed as a bar to the aid of 
 the Court {71 favor of the purchaser(SSQ). 
 
 Thus, in Prestage v. Langford (<:/), the auctioneer's son, 
 who was in partnership with his father, and another per- 
 son, bought an estate sold by order of a trustee for infant 
 legatees, and contracted to sell it a few days afterwards 
 for 750/. more than they gave for it. But the proof of 
 fraud being judged defective, the Court would not set 
 aside the sale merely because one of the auctioneers was 
 buyer and seller too, but decreed a specific performance, 
 nevertheless, witiiout costs ; in order (as was said) to 
 discourage all such suspicious transactions. 
 
 So, in the late case of Coles v. Trecothick(e), the trus- 
 tee's father (for whom the trustee in this instance acted as 
 agent), purchased an estate (which had been previously 
 put up to sale by auction, and bought in) of the cestui que 
 trust for 20,000/. ; and as the cestui que trust had full 
 knowledge of the value. &c. and he himself, and not the 
 trustee, fixed the price, and consented to the sale, and no 
 fraud was proved, a performance in specie was decreed ; 
 although the cestui que trust had since the contract been 
 offered 5,000/. more for the estate. 
 
 It must, however, be observed, that the case of Prestage 
 
 (c) See Dawson v. Massey, 1 Ball & Beatty, 219. 
 
 (d) 3 Wood. 248, n. Chan. M. 11 Geo. 3. 
 
 (e) 9 Ves. jun. 234; 1 Smith, 233. 
 
 (335) A guardian ad litenu in partition, may be a purchaser at a sale 
 made by Ihe commisyionerp, pursuant to an order of the court. JacJt- 
 30% V. Woolsty, 1 1 Johns. Rep. 446. 
 
 f336, ^ee T^anhlin v. Oseiy^d, on appeal, 14 Johny. Rwp. 637. 
 
 (*117)
 
 134 
 
 OF THE PERSONS INCAPABLE 
 
 V. Langford was decided before the broad rule which now 
 prevails was laid down. Indeed that case is clearly over- 
 ruled by later decisions, as the purchaser was in fact em- 
 ployed in the sale. And the decision in the case of Coles 
 V. Trecothick does not seem to meet with the approba- 
 tion of the Profession. But if, under the particular cir- 
 cumstances of this case, the Court had not compelled 
 execution of the contract, it would certainly hav€ been 
 deciding, that neither a trustee himself, nor any one con- 
 iiected with him, or related to him, can buy of the cestui 
 (^)que trust, however fair and open the circumstances may 
 be. Indeed, Lord Eldon seems to have founded his de- 
 cision on the ground, that the trustee himself might have 
 purchased the estate. 
 
 It may here be remarked, that where a power is given 
 by a settlement to trustees to sell the estate with the con- 
 sent of the tenant for life, or to the tenant for life to sell 
 with the consent of the trustees, it is in practice consider- 
 ed, that the estate may be safely purchased by the tenant 
 for life himself. Lord Eldon, although fully aware of the 
 danger attending a purchase of the inheritance by a tenant 
 for life, seems to think that it cannot be impeached on ge- 
 neral principles(/J. A few years ago, considerable doubt 
 was entertained by the Profession, whether the power of 
 sale and exchange, usually inserted in settlements of es- 
 tates, authorized a sale or exchange to or with the te- 
 nant for life, or at least whether equity would not relieve 
 against the transaction, and that doubt was stated as a 
 ground for requiring the aid of Parliament, in a petition 
 for an act to enable an exchange of settled estates with 
 the tenant for life ; which it was conceived could not be 
 done under a power of sale and exchange in the settle- 
 ment. The Chief Baron, and Mr. Baron Hotham, to 
 
 (/) See 9 Ves. jun. 52; and 11 Ve?. jiin. 480: but sec ib. 476, 
 477. 
 
 (^^118
 
 OF PURCHASING. j^^ 
 
 whom the bill was referred, reported, and submitted it 
 as their opinion, that the doubt which was the cause of 
 petitioning for the bill was not well founded ; and there- 
 fore the bill was unnecessary, and that the passing of such 
 a bill might cause a great prejudice to numerous titles under 
 executions of powers of sale and exchange of a similar 
 kind : and the House of Lords accordingly rejected the 
 bill ; in consequence of which many estates of great value 
 have been purchased, and taken in exchange by tenants 
 for life, under the usual powers of sale and exchange. 
 (*)Since these observations were written, the point has 
 again been agitated in practice. It is a point which no 
 private opinion can put at rest, although, after the opinions 
 of the Chief Baron and Mr. Baron Hotham, sanctioned 
 by the House of Lords, and followed up in practice, there 
 seems to be no ground to fear that a different rule will be 
 establis^ied. The point has been decided by the Lord 
 Chancellor since the above observations were written, in 
 favor of the execution of the power(o), and the point, 
 therefore, is now at rest. 
 
 H. The purposes for which estates are vested in trustees 
 for sale, are generally either for the benefit of creditors ; 
 of individuals sui juris; or persons not sui juris; and we 
 are now to consider in what manner trustees may become 
 purchasers of estates vested in them for those several 
 purposes, without being liable to be called to account for 
 so doing. 
 
 Of purchases by trustees or other prohibited persons in 
 general, it must previously be remarked, that the Court 
 will not permit them to give up their office, and to bid, 
 as it would lead to infinite mischief. The cestuis que 
 trust themselves, as we shall see, can decide this ; and no 
 Court can say ab ante they will permit it : for circum- 
 
 (g-) Howard v. Ducaiie, 1 Turn. 81 ; see Groverr. Hugell, 3 Russ. 
 
 428. 
 
 (*119)
 
 136 
 
 or THE PERSONS INCAPABLE 
 
 Stances may exist at the time of the second sale that the 
 Court cannot know(/0' 
 
 1. With respect to a trustee for creditors purchasing 
 the estate himself. 
 
 In Whelpdale v. Cookson(i), where a trustee for credi- 
 tors purchased part of the estate himself, Lord Hardwicke 
 said, if the majority of the creditors agreed to allow it, 
 he should not be afraid of making the precedent(337). 
 
 But in a late case(A;), Lord Eldon said, he doubted the 
 (*)authority of that case ; for if the trustee is a trustee 
 for all the creditors, he is a trustee for them all in the ar- 
 ticle of selling to others ; and if the jealousy of the Court 
 arose from the difficulty of the cestui que trust duly in- 
 forming himself what is most or least for his advantage, 
 he had considerable doubt whether the majority could in 
 that article bind the minority. 
 
 It seems tJoubtful, therefore, whether the purchase can 
 be supported unless all the creditors consent, although 
 convenience, and the general rule of transactions by a 
 body of persons, are strongly in favor of Lord Hard- 
 wicke's opinion. 
 
 2. With respect to a trustee for a person sui juris 
 becoming the purchaser of the estate. 
 
 If a trustee even for a person sui juris purchase in the 
 name of another person, the sale will be set aside, as that 
 very circumstance carries fraud on the face of it(/)(338). 
 
 {h) Ex parte James, 8 Ves. jun. 352. 
 (i) 1 Ves. 9 ; 5 Ves. jun. 682, n. 
 
 (A:) See 6 Ves. jun. 628. See ex parte Bage, 4 Madd. 459. 
 (Z) Lord Hardwicke v. Vernon, 4 Ves. jun. 411 ; 14 Ves. jun. 504 ; 
 and see 2 Bro. C. C. 410, n. 
 
 (337) See Davoue v. Fanning, 2 Johns. Ch. Rep. 259. See also, 
 1 Yeates, 312, 313. 
 
 (338) See 1 Peters' Rep. 368. M^Guire v. M'Gowen, 4 Des. 486. 
 Moodifs Les. v. Vandyke, 4 Binn. 43. Corhin v. Waller, 2 Hayw. 
 108. 
 
 (*120)
 
 OF PURCHASING. Jg-y 
 
 But it must not be understood that a trustee cannot 
 buy from his cestui que trust ; the rule is, that he cannot 
 buy from himself (m). If, therefore, the cestui que trust 
 clearly discharges the trustee from the trust, and consi- 
 ders him as an indifferent person, there is no rule which 
 says that he may not purchase of him, although the Court 
 will look with a very jealous eye on a transaction of that 
 nature(w) : and to be supported, it must clearly appear, 
 that the purchaser, at the time of the purchase, had 
 shaken off his confidential character, by the consent of 
 the cestui que trust freely given, after full information, 
 and bargained for the right to purchase(o)(339J. 
 
 So an attorney is not incapable of contracting with his 
 client, but the relation must be in some way dissolved, or, 
 (*)if not, the parties must be pxit so much at arm's length, 
 that they agree to take the character of purchaser and 
 vendor ; and you must examine whether all the duties of 
 those characters have been performed. If an attorney 
 deal with his client, he should require him to get another 
 attorney to advise with him as to the value, or, if he will 
 not, then out of that state of circumstances, this clear 
 duty results from the rule of equity, and throws upon 
 him the whole onus of the case ; that if he will mix with 
 the character of attorney that of vendor, he shall, if the 
 propriety of the contract comes in question, manifest that 
 he had given his client all that reasonable advice against 
 himself that he would have given him against a third 
 person(/?). So if an attorney be employed as agent in 
 
 (m) 10 Ves. jun. 246 ; and see AylifTe i-. Murray, 2 Atk. 58 ; Crowe 
 V. Ballard, 3 Bro. C. C. 117; \ Ves. jun. 215. 
 
 (n) See 6 Ves. jun. 627. 
 
 (o) See 8 Ves. jun. 353. 
 
 (p) Gibson V. Jeyes, 6 Vet^ jun. 266 ; sec p. 277, 278, per Lord 
 Eldon, C. ; Wood v. Downes, 18 Ves. jun. 120 ; Montesquieu v, San- 
 dys, ibid. 302. 
 
 (339) See Davoue v. Fanning, 2 Johns. Ch. Rep. 259, 260. 
 
 vol., II. 18 (*121)
 
 |Og OF THE PERSONS INCAPAbLG 
 
 the management of a landed estate, he- cannot deal with 
 his principal for that estate without honestly communi- 
 cating to the principal all the knowledge respecting its 
 value which he had acquired as his agent, and unless 
 he do this, the. contract, if questioned, cannot be sup- 
 ported (9-) . 
 
 And the same circumstances that will authorize a trus- 
 tee to contract for himself will enable him to purchase as 
 the agent of another(r). 
 
 3. With respect to a trustee for a person not sui juris 
 buying the estate himself. 
 
 The only mode by which this can be effected, so as to 
 protect the purchaser, is, if he sees that it is absolutely 
 necessary the estate should be sold, and he is ready to 
 give more than any one else, that a bill should be filed, 
 and he should apply to the Court by motion to let him be 
 the purchaser. This is the only way he can protect him- 
 self; (*)and Lord Alvanley said there are cases in which 
 the court would permit it ; as if only 5001. was offered^ 
 and the trustee will give 1,000/(5). 
 
 I 
 
 III. It remains to consider what remedy the cestui que 
 trust has, where his trustee has purchased the trust-estate 
 in a manner not authorized by the rules of the Court. It 
 may be premised, that this remedy goes precisely to the 
 same persons who were entitled to the estate before the 
 sale. Therefore, a man having a legal or equitable mort- 
 gage on the estate, which was not satisfied by the money 
 produced by the sale, may pursue the remedy afforded by 
 equity against the trustee. And the circumstance of the 
 mortgagee having been present at the sale, where he bid 
 
 (9) Cane v. Lord Allen, 2 Dow, 289, per Lord Eldon, C 
 (r) See 9 Ves. jun. 248. 
 
 («) Campbell v. Walker, 6 Ves. jun. 678 ; 13 Ves. jun. 601 ; see 
 1 Ball & Beatty, 418. 
 (*122)
 
 OF PURCHASING. ]39 
 
 for the estate, is no objection to his claim against the 
 owner of the estate, where he (the owner) has himself set 
 aside the sale and derived any advantage from itp). 
 
 If the trustee has not sold the estate, the cestui que 
 trust may insist on the purchase being avoided, and may 
 reclaim his estate(t«) ; for it need not be shown that the 
 trustee has made an advantage(.x). 
 
 If the cestui que trust require a re-conveyance of the 
 estate, he must repay to the trustee the original price of 
 the estate, and also all sums laid out for permanent benefit 
 and improvement of the estate, and interest thereon from 
 the times they were actually disbursed ; and, on the other 
 hand, the trustee must pay and allow all the rents re- 
 ceived by him, and the yearly value of such parts as have 
 (*)been in his own occupation, and all sums received by 
 the sale of timber or other parts of the inheritance, and 
 interest thereon, from the times of their being received. 
 This was decided in the great case of York-Buildings 
 Company v. Mackenzie, in the House of Lords(?/) ; and 
 it appears that the House allowed him the value of im- 
 provements of all kinds, even in the instance of a man- 
 sion-house erected, and plantations of shrubs, ikc(z). 
 
 And where the cestui que trust is not desirous to take 
 back the estate, he may require it to be put up to sale 
 again at the price. at which it was bought by the trustee : 
 and that if any one bid more^ the trustee shall not have 
 
 [t) Ex parte Lacey, 6 Yes. jun. 625; 12 Ves. jun. 8; ex parte 
 Morgan, 12 Ves. jun. 6. 
 
 (m) See 6 Ves. jun. 627; York B. C. v. Mackenzie, 8 Bro. P. C. 
 42 ; Lord Hardwicke v. Vernon, 4 Yes. jun. 411 ; Randall v. Erring- 
 ton, 10 Ves. jun. 423. 
 
 (x) See 8 Ves. jun. 348 ; 10 Ves. jun. 385, 393. 
 
 (y) 8 Bro. P. C. 42. 
 
 (z) See 6 Ves. jun. 624. This must have been decided in some of 
 the subsequent appeals ; See 8 Bro. P. C. 71, note. 
 
 (*123)
 
 I fcQ OF THE PERSONS INCAPABLE 
 
 the estate : but if not, that lie may be compelled to keep 
 
 it(«). 
 
 If, however, the cestui que trust be desirous to have 
 
 the estate put up in lots, and it was bought by the trustee 
 in one lot, he must either repay the trustee the purchase- 
 money with such interest as he would have been liable 
 to pay upon his bargain, he accounting for the rents 
 received, or paying an occupation-rent for the estate, if 
 he personally occupied it : or the cestui que trust must 
 consent to have tiie estate put up in one lot on the terms 
 before mentioned(6). 
 
 The trustee will, in case of a resale, be allowed any 
 money bona fi le laid out, not only in substantial repairs 
 and improvements, but also in such as have a tendency 
 to bring the estate to a better sale ; which will be added 
 to the amount of the purchase-money, and the estate 
 will be put up at the aggregate sum ; deductings how- 
 ever, (*)an allowance for acts that deteriorate the value 
 of the estate(c)(340). 
 
 If any old buildings have been pulled down by the 
 purchaser, and new ones erected, the old buildings, if 
 incapable of repair, will be valued as old materials, but 
 otherwise as buildings standing(^i). 
 
 But no allowance will be made him for any loss he 
 may sustain by a fall in the funds(e). 
 
 Formerly where a purchase by a trustee was set aside, 
 
 (a) E.r pa>-/e Reynolds, 5 Ves. jun. 707 ; ex parte Hughes, ex par- 
 te Lacey, and Lister v. Lister, 6 Ves. jun. 617, 625, 631. 
 (6) Ex parte James, 8 Yes. jun. 337. 
 
 (c) Ex parte Hughes, 6 Ves. jun. 617; ex parte Bennet, 10 Ves. 
 jun. 381. 
 
 (d) 6 Madd. 2. 
 
 (c) Ex parte James, ubi sup. 
 
 (340) See Dilworth v. Smderling, 1 Binn. 488, 495. Green v. 
 Winter, 1 Johns. Ch. Rep. 39, 40. Methodist Episcopal Church v. 
 Jaques, 1 Johns. Ch. Rep. 450. Southgate v. Taylor, 5 Munf. 420. 
 
 (*124)
 
 OF PURCHASING. 
 
 141 
 
 the rule was^ to put up the estate again to be sold to the 
 best bidder ; the trustee accounting for the profits, and 
 being allowed his principal money and interest at 4 per 
 cent(f). 
 
 If the trustee has actually sold the estate, the cestui 
 que trust may compel the trustee to pay him what he may 
 have received above the original purchase-money (^)(341). 
 
 Where a trustee buys the trust-estate at a fair price, 
 the sale is seldom called in question, unless he afterwards 
 sell it to advantage ; and then the cestui que trust is of 
 course only desirous that the money gained by the trustee 
 on the resale should be paid to him. 
 
 Owing to this circumstance, a purchaser of a trust- 
 estate from a trustee who had previously sold to himself, 
 is seldom implicated in the suit ; but it seems clear that 
 a person purchasing with notice of the previous trans- 
 action would be liable to the same equity as the trustee 
 was subject to(342). In the late case of Randall v. Er- 
 rington(A), a purchaser from a trustee who had purchas- 
 ed in the name of a trustee was made a defendant, and the 
 (*)prayer of the bill was, that if he purchased without 
 notice, the trustee might account for the money gained by 
 the resale ; but as the equity against the purchaser was 
 not noticed either by the counsel or the court, it must be 
 presumed that no notice was proved. A different rule 
 would, to use the expression of a great man, blow up like 
 gunpowder this branch of equitable jurisdiction. It is 
 
 (/) See Whelpdale v. Cookson, 1 Ves. 9; 5 Ves. jun. 682, n. 
 ( 0-) Fox V. Macreth, 2 Bro. C. C. 400 ; ex parte Reynolds, 5 Ves. 
 jun. 707. 
 
 (/i) 10 Ves. jun. 423. 
 
 (341) " No profit, gain, or advantage, shall be derived to the trustee, 
 from his use of the trust funds. All the gain must go the cestui que 
 trust." Per KENT, Schieffelin v. Steivart, 1 Johns. Ch. Rep. 625. 
 See Brown v. Rickets, 4 Johns. Cb. Rep. 303. 
 
 (342) See Murray v. Ballou, 1 Johns. Ch. Rep. 574, 575. 
 
 (*125)
 
 1^2 OF THE PERSONS INCAPABLE 
 
 indeed true, that in the case in the House of Lords, the 
 proceedings in the Court of Sessions were reversed with- 
 out prejudice to the titles and interests of the lessees and 
 others who might have contracted with the defendant 
 bona fide, and before the dependence of the process(I). 
 But this may be satisfactorily accounted for on two 
 grounds : the one, that no notice was charged on the 
 lessees, nor were the leases attempted to be impeached ; 
 the other, that the relief sought had been delayed for 
 many years, and the point established by the House of 
 Lords was, to say the least, a new doctrine with reference 
 to Scotland. But this equity is now well established. 
 No person, therefore, can be advised to become the pur- 
 chaser of an estate so circumstanced, unless xhQ cestui que 
 trust will join ; nor would a court of equity, on any other 
 terms, enforce a specific performance of such a contract. 
 But this doctrine cannot be extended to the mere case of 
 a purchase by a trustee in his own name, from his cestui 
 que trust, which may or may not be binding, according to 
 circumstances, unless the purchaser have also notice that 
 the sale was not such as could.be supported in equity. 
 
 Before closing this chapter it must be remarked, that if 
 a cestui que trust acquiesce for a long time in an improper 
 purchase by his trustee, equity will not assist him to set 
 (*)aside the sale(2). In Price v. Byrn(A^), Lord Alvanley 
 
 («) See ex parte James, 8 Ves. jun. 337; Hall v. Noyes, 3 Yes. 
 jun. 748, cited ; and see 11 Ves. jun. 226 ; Morse v. Royal, 12 Ves. 
 jun. 356; Medlicott v. O'Donel, 1 Ball & Beatty, 156 ; Champion r. 
 Rigby, 1 Russ. & Myl. 539. 
 
 (A-) 5 Ves. jun. 681, cited ; and see Noriis r. Neve, 3 Atk. 26 ; 
 Gregory v. Gregory, Coop. 201. 
 
 (I) And see the same rule as to under-leases of a charity-estate, 
 where the original lease is set aside as improvident. Attorney-General 
 V. Griffith, 13 Ves. jun. 565 ; Attorney-General v. Backhouse, 17 Ves. 
 jun. 283. 
 
 (*126)
 
 OF PURCHASING. 
 
 143 
 
 refused the aid of the Court, because the bill had been 
 delayed twenty years(I)(343). 
 
 But laches do not apply to a body of creditors, who 
 may, therefore, claim the aid of equity at a much more 
 distant period after the sale than an individual can(/). 
 
 And although acquiescence may have the same effect 
 as original agreement, and may bar such a remedy as 
 this, yet the question as to acquiescence cannot arise 
 until it is previously ascertained that the cestui que trust 
 knew his trustee had become the purchaser : for, while 
 the cestui que trust continued ignorant of that fact, there 
 is no laches in not quarrelling with the sale upon that 
 special ground (w). 
 
 A purchase by a trustee from his cestui que trust is 
 merely malum prohibitum, and not malum in se. It is one 
 of those contracts which admit of confirmation by the 
 injured party. But to give effect to a confirmation in 
 a case like this, the party confirming must not be under 
 the control of the person whose title is to be confirmed, 
 and he must have a full knowledge of all the circumstan- 
 ces, and of his power to set aside the former transaction (7^). 
 
 (/) Whichcote v. Lawrence, 3 Ves. jun. 740 ; and a case before the 
 Court of Exchequer, 6 Ves. jun. 632, cited ; York-Buildings Company 
 V. Mackenzie, 8 Bro. P. C. by Tomhns, 42. 
 
 (i») Per Sir William Grant, 10 Ves. jun. 427 ; and see 2 Ball & 
 Beatty, ]29. 
 
 (n) Morse v. Royal, 12 Ves. jun. 355 ; Murray v. Palmer, 2 Scho. 
 & Lef. 474; Roche v. O'Brien, 1 Ball & Beatty, 330; Wood v. 
 Downes, 18 Ves. jun. 120; Dunbar v. Tredennick, 2 Ball & Beatty, 
 304. Vide supra. Vol. 1, p. 265; Cockerell v. Cholmeley, 1 Russ. & 
 Myl. 418; Small r. Attwood, 1 Yo. Rep. 407. 
 
 (I) See now 3 & 4 Will. 4, c. 27, s. 24, 25, 26, 27. 
 
 (343) See Bergen v. Bennett, 1 Gaines' Cas. in Error, 1. Jackson 
 V. Walsh, 14 Johns. Rep. 407.
 
 [ 144 ] 
 
 (*)CHAPTER XV. 
 
 OF JOINT purchases; purchases in the names of 
 
 THIRD PERSONS ; AND PURCHASES WITH TRUST-MO- 
 NEY : AND OF THE PERFORMANCE OF A COVENANT TO 
 PURCHASE AND SETTLE AN ESTATE. 
 
 SECTION I. 
 Of Joint Purchases. 
 
 Where two or more persons purchase lands, and ad- 
 vance the money in equal proportions, and take a con- 
 veyance to them and their heirs, this is a joint tenancy, 
 that is, a purchase by them jointly of the chance of sur- 
 vivorship, which may happen to the one of them as well 
 as to the other(a)(I)(344), but where the proportions of 
 
 (a) See Moyse v. Gyles, 2 Vern. 385 ; York v. Eaton, 2 Freem. 23 ; 
 Thicknesse v. Vernon, 2 Frecm. 84 ; Anon. Carth. 15 ; and see 3 Atk. 
 735 ; 2 Ves. 258 ; Rea v. Williams, MS. Appendix, No. 23 ; Aveling 
 D. Knipe, 19 Ves. jun. 441. 
 
 (344) See Caines v. Grants^ Les. 5 Binn. 119. Cuyler v. Bradt, 
 2 Caines' Cas. in Error, 326. Higbee v. Rice, 5 Mass. Rep. 344, 350. 
 JWqrtin v. Smith, 5 Binn. 16. 
 
 (I) This distinction has not been thought satisfactory. A writer, to 
 whom the Profession is under great obligation, observes, that if the ad- 
 vance of consideration, generally, will not prevent the legal right, the 
 mere inequality of proportion, which may naturally be attributed to the, 
 
 (*127)
 
 OF JOINT PURCHASES. 
 
 145 
 
 the (*)fnoncy are not equal, and this appears in the deed 
 itself, this makes them in the nature of partners(6) ; and 
 however the legal estate may survive, jet the survivor shall 
 be considered but as a trustee for the others in propor- 
 tion to the sums advanced by each of them. So if two 
 or more make a joint purchase, and afterwards one of 
 them lays out a considerable sum of money in repairs or 
 improvements, and dies, this shall be a lien on the land, 
 and a trust for the representative of him who advanced 
 it(c). 
 
 And where the money is advanced in equal proportions, 
 so that the purchasers are joint tenants in equity as well 
 as at law, a conveyance by the purchasers to a trustee 
 without any consideration, and without any express intent 
 to sever the joint tenancy, will not have that effect ; but 
 the trust estate will go to the survivor in the same manner 
 as the legal estate would have done(d). 
 
 In all cases of a joint undertaking, or partnership, 
 although the estate will survive at law, yet the survivor 
 will in equity be a trustee for the representative of the 
 deceased partner(345). 
 
 (b) See 2 Ves. 258. 
 
 (c) Per Master of tlie Rolls, in causa Luke r. Gibson, 1 Eq. Ca. 
 Abr. 290, pi. 3. 
 
 (d) Rea v. Williams, MS. Appendix, No. 21. 
 
 (345) See Duncan v. Forrer, 6 Binn. 193, 196. 
 
 relative value of the lives, cannot have that effect. See 9 Ves. jun. 597, 
 n. (b). The distinction, however, seems founded on rational grounds. 
 Where the parties advance the money equally, it may -be fairly presum- 
 ed that they purchased with a view to the benefit of survivorship ; but 
 where the money is advanced in unequal proportions, and no express in- 
 tention appears to benefit the one advancing the smaller proportion, it is 
 fair to presume that no such intention existed ; the inequality of propor- 
 tion can scarcely be attributed to the relative value of the lives, because 
 neither of the parties can be supposed not to know, that the other may, 
 immediately after the purchase, compel a legal partition of the estate, or 
 may even sever the joint-tenancy by a clandestine act. 
 
 VOL. II. . " 19 (*128)
 
 146 
 
 OF JOINT PURCHASES. 
 
 Thus, in a case(e) where five persons purchased hin ds 
 in fee of the commissioners of sewers, and in order to 
 improve and cultivate these lands afterwards entered into 
 articles, whereby thej agreed to be equally concerned as 
 to profit and loss, and to advance each of them such a 
 (*)sum, to be laid out in the manurance and improvement 
 of the land, it was held by the Master of the Rolls that 
 they were tenants in common, and not joint tenants, as 
 to the beneficial interest, and that the survivor should not 
 go away with the whole ; for then it might happen that 
 some might have paid or laid out their share of the 
 money, and others, who had laid out nothing, go away 
 with the whole. And the decree was affirmed by Lord 
 Chancellor Km^(f). 
 
 So where two persons took a building-lease, and laid 
 out money in erecting houses, they v^ere held to be part- 
 ners with respect to this property : and the survivor was 
 decreed to be a trustee of a moiety for the representatives 
 of the deceased(^). 
 
 But as the lands will survive a-t law, equity, on the 
 general rule that he who seeks equity shall do equity, 
 will not relieve, unless the person seeking relief will do 
 what he equitably ought to do. 
 
 Thus, in the first-mentioned case, the ancestor of the 
 party seeking relief had quitted the concern for many 
 years ; since which time the other proprietors, to enable 
 them to carry on their design, had purchased some other 
 estates, which proved a losing concern ; and the plaintiff 
 was only relieved on contributing his share of the pur- 
 
 (c) Lake r. Gibson, ubi sup. and see Hays v. Kingdome, 1 Vein. 
 33 ; Jeffereys v. Small, 1 Vern. 217. 
 
 (/) Lake v. Craddock, 3 P. Wms. 158 ; S. C. MS. ; Morris r. Bar- 
 rett, 3 You. & Jerv. 384. 
 
 (g-) Lyster v. Dolland, 1 Yes. jun. 431. See 2 Yes. juii. 631 •, and 
 Elliot V. Brown, 9 Yes. jun. 697, cited. 
 
 (*129)
 
 OF JOINT PURCHASES. j Ay 
 
 cliase-monej of the estates so bought, with interest from 
 the time the money ought to have been paid(/j). 
 
 Lord Chancellor King said, that this was plainly a 
 tenancy in common in equity, though otherwise at law ; 
 and the defendant Craddock having only a title in equity, 
 that he must do equity ; and that this was equitable in all 
 j (*)its branches ; for he had his election to drop all claim, 
 or to take it on the same foot with the rest of the part- 
 ners ; and that it was not reasonable that he should be let 
 into the account of the profits or loss of the undertaking 
 until he had made his election(i). 
 
 If it be doubtful whether the purchasers bought the 
 property to carry on trade, an inquiry will be directed 
 before the Master to ascertain the fact(y)(I). 
 
 Where two or more persons agree for the purchase of 
 an estate in moieties between them, subject to incum- 
 brances, which are to be discharged out of the purchase- 
 money, the purchase is in equity considered to be made 
 for their equal benefit, and on a mutual trust betiveen them ; 
 and therefore, although one of them may have abatements 
 made to him by some of the incumbrancers, of sums due 
 for interest or. otherwise, in consideration of services and 
 friendship, jftid^it is expressly agreed to be to his own 
 use, yet equity wifl compel him to account to the other 
 for the benefit of these advantages(^'), 
 
 So a new lease obtained by one partner shall enure to 
 
 {h) And see Senhouse r. Christian, 19 Ves. 167, cited. 
 
 (t) MS. The judgment is nut stated in any other printed book. 
 
 (j) See 1 Ves. jun. 435. 
 
 {k) Carter v. Home, 1 Eq Ca. Abr. 7, pi. 13. 
 
 (I) Whether the property as between the representatives shall be 
 
 deemed real or personal, see Bell v. Phyn, 7 Ves. jun. 453 ; Batemaa 
 
 r. Shore, 9 Ves. jun. 500 ; Mackintosh v. Townsend, 1 Mont. Partn. 
 
 notes, 97 ; Sclkrig v. Davies, 2 Dow. 231. 
 
 (*J30;
 
 148 
 
 OF JOINT PURCHASES. 
 
 both(/), although he obtained it clandestinely and on his 
 own account(wi). 
 
 If two persons purchase au estate subject to a mortgage, 
 and the mortgage-money is apportioned between them, 
 and each of them covenants with the other to pay his 
 share of the money, and to indemnify the other from it, 
 (*)they do not by those means make their personal estate, 
 as between their real and personal representatives, the 
 primary fund for payment of tlie mortgHge-money(w). 
 
 It seems that wiiere two or more persons purchase an 
 estate, and one, for instance, pays all the money, and the 
 estate is conveyed to them both, the one who paid the 
 money cannot call upon those who paid no part of it to 
 repay him their shares of the purchase-money, or to con- 
 vey their shares of the estate to him : for by payment of 
 all the money he gains neither a lien nor a mortgage, 
 because there is no contract for either ; nor can it be 
 construed a resulting trust, as such a trust cannot arise at 
 an after-period ; and perhaps the only remedy he has, is 
 to file a bill against them for a contribution(o). When- 
 ever, therefore, two persons agree to purchase an estate, 
 it should be stipulated in the agreement, that if by the 
 default of either of them the other sHSl be compelled 
 to pay the whole, or greater part of tlie purchase-money, 
 the estate shall be conveyed to him, and he shall hold the 
 entirety against the other and his heirs, unlc'ss he or they 
 shall, within a stated time, repay the ^um advanced on 
 their account, with interest in the mean time. 
 
 (/) Burroughs v. Elton, 11 Ves. jun. 29. 
 
 (m) Featherstonhaugh v. Fenvvick, 17 Ves. jun. 298. 
 
 (n) Forrester v. Lord Leigh, Ambl. 171. Vide supra, vol. ], p. 188. 
 
 (o) See Wood v. Birch, and Wood v. Norman, Rolls, 7 and 8 March 
 1804 ; the decree in which case does not, however, authorize the ob- 
 servation, but the author conceives it to follow, from what fell from the 
 Master of the Rolls at the hearing. 
 
 (*131)
 
 OF JOINT PURCHASES. |49 
 
 But it has been held, that if one of two joint tenants of 
 a lease renew, at his own expense, and the other party 
 reap the full benefit of it, the one advancing the money 
 shall have a charge on the other moiety of the estate, for 
 a moiety of his advances on account of the fines, although 
 such other moiety of the estate be in strict settlement 
 at the time of the renewal. The case was considered to 
 (*)fall within the principle upon which mortgagees who re- 
 new leasehold interests have been decreed entitled to 
 charge the amount upon the lands(/?). 
 
 Where two or more persons purchase an estate, and 
 the conveyance is taken in the name of one of them, the 
 trust may be proved by letters written subsequently to the 
 purchase ; for the statute of frauds(9) does not require 
 that a trust shall be created by a writing(r)(346) ; but 
 that it shall be manifested and proved by writing, which 
 means that there should be evidence in writing, proving 
 that there was such a trust(5)(347). 
 
 But although two persons enter into a treaty for the 
 purchase of afi estate, and one of them desists, and per- 
 mits the other to go on with the intended purchase, on 
 his promising, by parol, to let him have the part of the 
 estate he desired, yet it seems that this agreement cannot 
 be enforced on account of the statute of frauds(348). 
 
 In Lamas v. Baily(?), which was a case of this nature, 
 the plaintiff obtained a decree at the Rolls, it being in- 
 
 {p) Hamilton w. Denny, 1 Ball & Beatty, 199. 
 {q) 29 Car. 2, c. 3, s. 7. 
 
 {r) See n. (1) to the last edit, of Gilb. on Uses, p. 111. 
 (») Forster v. Hale, 3 Yes. jun. 696 ; 5 Ves. jun. 308 ; Randall v. 
 Morgan, 12 Ves. jun. 67. 
 
 {t) 2 Vern. 627 ; and see Riddle v. Emerson, 1 Vern. 106. 
 
 (346) See Boijd v. M'Lean, 1 Johns. Ch. Rep. 582. Botsford v. 
 Burr, 2 Johns. Ch. Rep. 405, 409. 
 
 (347) See JMovaii v. Hays, 1 Johns. Ch. Rep. 339. 
 
 (348) See Henderson v, Hudson, 1 Munf. 610. 
 
 (*132)
 
 150 
 
 OF JOINT PURCHASES. 
 
 sisted, that although it was an agreement parol, yet it u as 
 in part executed by the plaintiff's desisting from prose- 
 cuting his purchase, who otherwise might have purchased 
 for himself, or at least have enhanced the price the de- 
 fendant was to pay, so that the defendant had a benefit 
 by it ; and besides, it was a fraud(M), and like the case j 
 where a man agreed to purchase as agent for another, ' 
 and would afterwards retain the purchase to himself. But 
 upon an appeal to the Lord Chancellor, the decree was |j 
 (*)reversed, as being a parol agreement within the pro- 
 vision of the statute against frauds. 
 
 Mr. Powell(a:) refers to an anonymous case in Viner(y), 
 which he conceives to be another report of the case of I 
 Lamas v. Baily, where the Lord Chancellor dismissed 
 the bill because there was no absolute and positive agree- i 
 ment ; but the words were ambiguous and uncertain, 
 and the statute intended to oust as well all such ambi- 
 guous agreements, as to prevent perjuries, &lc., and this 
 agreement would not bind, unless it were in writing. 
 And Mr. Powell, therefore, conceives thai* the Judgment 
 turned on there being no absolute or positive agreement, 
 the words being ambiguous and uncertain ; and not on 
 t1ie ground that the forbearing by agreement to do an act 
 might not be a part performance, and raise as strong an i 
 equity to have the benefit stipulated in return, as an act i 
 done. I 
 
 In the later case of Atkins v. Rowe(2:), some i^ersons 
 desirous of obtaining a lease of three houses, agreed that 
 one of them should bid for all the houses, but that the 
 lease should be for their joint benefit. Accordingly he 
 bid, and a lease was made to him ; and to a bill filed by 
 
 («) See Thynn v. Thynn, 1 Vera 296. 
 {x) 1 Powell on Contracts, 310. 
 
 (i/) 5 Yin. Abr. 621, pi. 32. Note, the case of Lamas v. Baily is 
 stated in the same page. 
 
 (s) Mose. 39 ; and see Crop v. Norton, stated infra. 
 (*133) 
 
 
 \ 
 
 I
 
 OF JOINT PURCHASES. 
 
 151 
 
 the others to have the benefit of the lease, and that the 
 purchaser might be decreed a trustee, he pleaded the 
 statute of frauds in bar both to the discovery and relief. 
 But the Lord Chancellor seemed of opinion, that the 
 agreement, although by parol, was not within the statute, 
 and ordered the plea to stand for an answer, with liberty 
 to except, and the benefit of the plea to be saved to the 
 hearing. Thus the case is reported in Moseley. It ap- 
 pears from the cases in the House of Lords(«), that the 
 (*)defendant by his answer denied the agreement, and the 
 cause being at issue, several witnesses were examined on 
 both sides. There was a contrariety of evidence, but the 
 plaintiff proved the agreement by one positive witness, 
 corroborated by circumstances. But the Chancellor dis- 
 missed the bill without costs, and his decree was affirmed 
 by the House of Lords. 
 
 Upon the whole, therefore, the better opinion perhaps 
 is, that an agreement of this nature cannot be enforced, 
 although certainly it does not appear that the precise 
 point has ever been decided upon an absolute agreement 
 clearly and undeniably proved. 
 
 From the case of Smith, treasurer of the West-India 
 Dock Company v. the Mayor and Corporation of Lon- 
 don(6), it should seem, that where two persons agree to 
 purchase an estate, and one of them, by agreement be- 
 tween them, completes the purchase, and pays the money, 
 the other must agree to accept the title, and pay his share 
 of the purchase-money, before he can call for an inspec- 
 tion of the title-deeds, in order to investigate the title; 
 unless the one who purchased can be charged with such 
 gross negligence, or wilful default, as will strip an agent, 
 as such, of the protection w hich that character gives him 
 
 (a) Cases, Dom Proc. 1730. 
 
 (b) Ch. Dec. 16, 1801, and many previous days, MS. 
 
 (*134)
 
 152 
 
 OF PURCHASES IN THE 
 
 in all transactions in which he duly acts according to his 
 agency : and in case any such gross negligence or wilful 
 default can be proved, the injured party will have a re- 
 medy in equity, although he may have paid his share of 
 the purchase-money. 
 
 SECTION II. 
 
 Of Purchases in the Names of Third Persons. 
 
 I. If a man purchase an estate, and do not take the 
 conveyance in his own name only, the clear result of all 
 (*)the cases, without a single exception, is, that the trust 
 of the legal estate, whether freehold, copyhold or lease- 
 hold ; whether taken in the name of the purchaser and 
 others jointly, or in the names of others, without that of 
 the purchaser ; whether in one name or several ; whether 
 jointly or successive, results to the man who advances the 
 purchase-money(c)(349), unless such a resulting trust 
 would break in upon the policy of an act of parliament(c?). 
 And although the person in whose name the conveyance 
 is taken executes no declaration of trust, yet a trust will 
 result for the person who paid the money by operation of 
 
 (r) Per Lord C. B. Eyre, in Dyer v. Dyer, stated infra. 
 (d) See ex parte Houghton, 17 Ves.jun. 261 ; and see Redington v. 
 Redington, 3 Ridg. P. C. 106. 
 
 (349) See Boijd v. JSPLeati, 1 Johns. Ch. Rep. 582, 586. Bots- 
 ford V. Burr, 2 Johns. Ch. Rep. 406. Cox v. Grant, 1 Yeates, 166. 
 Foote V. Colvin, 3 Johns. Rep 216. Les. of Ge^inan v. Gahbald, 3 
 Binn. 302. 
 
 (*135) 
 
 ( 
 
 i
 
 NAMES OF STRANGERS. 
 
 153 
 
 law ; this species of trust l)ein<^ expressly excepted out of 
 the statute of frauds(6')(I)(o50). 
 
 But, unless the trust arise on the face of the deed itself, 
 the proofs must be very c\cm'(fJ(3o\) : and however clear 
 
 (c) 21 Car. 2, c b', s. S. See Hungate v Hungate, Toth. 184 ; 
 Gascoigne v. Thwing, 1 Vern. 365 ; Howe v. Howe, 1 Vern. 415 ; 
 Anon. 2 Ventr. 361, n. (3) ; O'Hara v. O'Nei!, 21 Vin. Abr. 497, n. ; 
 2 Bro. P. C. 39 ; Pelly v. Maddin, 21 Vin. Abr. 498, pi. 15 ; Sir Darcy 
 Lever i'. Andrews, 7 Bro. P. C. by Tomlins, 288 ; Ambrose v. Am- 
 brose, 1 P. Wms. 32^1 ; ex parte Vernon, 2 P. Wms. 549 : Smith v. 
 Baker, 1 Atk. 385 ; Lloyd v. Spillet, 2 Atk. 148 ; Withers v. Withers, 
 Ambl. 15 ; Lade v. Lade, 1 Wils. 21 ; Smith v. Lord Camelford,-2 
 Ves. jiin. 713 ; Riderr. Kidder, 10 Ves. jun. 360. 
 
 (/) Gascoigne v. Thwing, 1 Vern. 366 ; Newton v. Preston, Prec. 
 Cha. 103; Willis i'. Willis, 2 Atk. 71 ; and see 1 Atk. 60; Ambl. 
 414; Acheriev v. Acheriey, 4 Bro. P. C. 67 ; and Smith r. Wilkinson, 
 o Ves. jun. 705, cited ; and 1 Dick. 328 ; and see Lench v. Lench, 10 
 Ves. jun. 511 ; Groves v. (Proves, 3 You. & Jerv. 163. 
 
 il) See 1 Will- c. 60, s. 16, for a provision against the infant heir-at- 
 law of a nominal purchaser; and supra, vol. 1, p, 132. 
 
 (350) See Boyd v. JSP Lean, Botsford v. Burr, Germany. Gabbald, 
 and Foote v. Colvin, ut supra. Jackson v. Sternbergh, 1 Johns. Cas. 
 153. Jackson V. Mafsdorf, 11 Johns. Rep. 91. Jackson v. JVlills, 
 13 Johns. Rep. 463. Jackson v. Morse, 16 Johns. Rep. 197, 199. 
 Wallace v. Duffield, 2 Ecrg. & Rawle, 526. JS'PGuire v. M'Goiven, 4 
 Des. 486. 
 
 In Seward v. Jackson, 8 Cowen, 406. (in error,) where E. sold two 
 acres of land to S., on his own credit, taking his bond for the purchase 
 money ; but S. subsequently paid the bond ; held, that this did not 
 raise a resulting trust. (Per Spencer, Senator). So, in Botsford r. 
 Burr, 2 J. Ch. R. 409. Ch. Kent, in respect to such a question says, 
 " nor would a subsequent advance of money to the purchaser, after the 
 purchase is complete and ended, alter the case. It might be evidence 
 of a new loan, or be the ground of some new agreement ; but it would 
 not attach by relation, a trust to the original purchase ; for the trust 
 arises out of the circumstance, that the monies of the r6al, not the no- 
 minal purchaser, formed, at the thnc, the consideration of that purchase, 
 and became converted into the land."' 
 
 (331) See Boyd v. M'Lean, ut supra. SntUing v. Utterback, 1 
 
 VOL. II. 20
 
 154 
 
 or PURCHASES IN THE 
 
 they may be, it seems doubtful whether parol evidence is 
 admissible against the answer of the trustee denying the 
 (*)trust(^)(352). And in cases of this nature the claim- 
 
 (g) Skett V. Whitmore, 2 Freem. 289 ; Newton v. Preston, Prec. 
 Cba. 103. See Cottington v. Fletcher, 2 Atk. 155 ; Bartlett v. Pick- 
 ersgill, 4 East, 577, n. (6). 
 
 Bibb, 609. Foote v. Colvin, 3 Johns. Rep. 222. Bolsford v. Burr^ 
 2 Johns. Ch. Rep. 409. Wallace v. Duffield, 2 Serg. & Rawle, 527. 
 
 (352) Held to be admissible, in Boijd v. JSV Lean, 1 Johns. Ch. Rep. 
 682. ; and Snelling v. Utlerback, 1 Bibb, 609. But in such case, pa- 
 rol evidence is to be received with great caution. Boyd v. JVl^Lean, ut 
 supra. 
 
 By the principles of the common law there was no process but against 
 legal estates, so that uses and trusts, and equities -of redemption, and 
 all merely equitable interests in lands or personal property, were con- 
 sidered only as creatures of equity, and were not liable to be taken and 
 sold on execution. Equitable interests are only to be reached by re- 
 sorting to a court of equity ; and where it is clothed with suflScient pow- 
 ers to grant relief in all cases, creditors cannot be prejudiced. But 
 this defect of the common law, cannot be supplied in all cases by the 
 limited powers of this court in equity. Per Wilde, J. in Russel v. Lew- 
 is, 8 Pick, 508, where it was decided that the interest of a cestui qu& 
 trust was not liable to be extended by execution ; because in Massa- 
 chusetts there is no statute making trust estates chargeable with the 
 debts of the cestui que trust. The estate in question had been set off 
 to the demandant to satisfy an execution ; but it appeared that the de- 
 mandant was only a nominal plaintiff in the action ; one B. being iu 
 equity entitled to the fruits of the judgment. " This, said the same 
 learned judge in delivering the judgment of the court, was not a trust 
 or use executed by the statute of uses, (27 Hen. 8, c. 10,) but a trust 
 according to the understanding of the term since the passing of the 
 statute. In the present case relief may probably be had, if the tenant 
 can show himself entitled to relief by the rules of equity, as the dec- 
 laration of trust was made by deed. By the 10th section of the Eng. 
 St. of frauds (29 Car. 2. c. 3.) trust estates were made liable to exe- 
 cution for the debts of the cestui que trust, but this statute did not ex- 
 tend to the provinces nor was it ever adopted in this State. The case 
 of Smith V. Lane et al. 3 Pick. 205. decided that a trust could only be 
 skown by writing; parol evidence was not admissible. But where an 
 absolute conveyance was made upon the loan of money and the grantee 
 subsequently executed a bond to the grantor to reconvey on payment of 
 
 (*136)
 
 NAMES OF STRANGERS. -i er 
 
 ant, in opposition to the legal title, should not delay as- 
 serting his right, as a stale claim would meet with little 
 attention(^). 
 
 (A) Delane v. Delane, 7 Bro. P. C. by Tomlins, 279. 
 
 the money ; a creditor of the grantee having sued out a foreign attach- 
 • ment against the grantor was declared to be entitled to recover ; the 
 latter having sold the land for a larger amount than the loan. He held 
 the land until the sale, and the proceeds afterwards, as the trustee of the 
 principal, for the payment of the debt to himself and such expenses as 
 he had a right to charge, and for the use of the principal as to any sur- 
 plus! Richards v. Allen et al. 8 Pick. 405. So, in Arms v. Ashley, 
 4 ib. 71, where the rents and profits of land were levied on to satisfy 
 an execution ; and the judgment creditor signed a writing engaginor to 
 pay the plaintiff the surplus rent after payment of his demand : held, 
 that the plaintiff was entitled to recover the surplus money out of the 
 hands of the defendant, who held the land under color of descent ; the 
 writing though nit under seal is a sufficient declaration of a trast within 
 our statute, agreeably to the decision in Barrell u. Joy, 16 Mass. 221. 
 where certain expressions used by Joy in a pamphlet which he publish- 
 ed in reply to one previously published by the complainants, were consid- 
 ered as amounting to an acknowledgment that the estates and property, 
 which he received from Barrell, were entrusted to him for certain pur- 
 poses ; and that he was accountable to the latter for a just distribution 
 of them ; and for any balance remaining after the purposes of the trust 
 were fully answered. Letters and other papers, any declaration in 
 writing however informal, made by the grantee or assignee of property, 
 at any time after the conveyance, is competent to show a trust accord- 
 ing to the terms of such a declaration. 
 
 In Harrison i'. M'Mennomy et al. 2 Edw. Ch. R. 251, where a trust 
 was created for the benefit of certain children merely by a deposit of 
 money in the hands of a third person ; and the latter executed his bond 
 and mortgage to the children : held that this money notwithstanding re- 
 mained the property of the persun depositing it ; and subject to her be- 
 quest. The V. Ch. observed that " parol evidence is admissible to 
 prove a trust in opposition to an absolute deed or written instrument : 
 but it must be evidence of so positive a character as to leave no doubt 
 of the fact, and, at the same time, so clearly define the trust as that the 
 Court may see what is requisite for its due execution. There can be 
 no doubt a trust was created for the benefit of the children upon placing 
 (he money in the hands of the defendant : for it was not a loan of mo-
 
 156 
 
 OF PUllCHAfSES IN TilK 
 
 It has been said(/), that if the conisideration-money is 
 expressed in the deed to be paid by the person in whose 
 name the conveyance is take n, and nothing appears in 
 such a conveyance to create a presumption that the pur- 
 chase-money belonf2;ed to another, then parol proof can- 
 not be admitted, after the death of the nominal purchaser, 
 to prove a resuhing trust ; for that u ould be contrary to 
 the statute of frauds and peijuries(3o3). 
 
 This proposition has been adopted by another \vriter(A;), 
 who says, that it should seem, that even the confession of 
 the trust by the nominal purchaser, to countervail a de- 
 claration in writing, and create a trust for the party 
 advancing the money, cannot be established by a third 
 person, but must be made under a judicial examination 
 upon oath^ or by the pari if s own answer in equity. This, 
 lie adds, seems understood both in the case of Ambrose 
 
 (i) See Mr. Sanders's note to Lloyd v. Spillet, 2 Atk. 150; and see 
 his Essay on Uses, I. 123 ; and see the 3d edit, of that work, (). 259, 
 260. 
 
 (it) Roh. on Stat, of Frauds, 99. 
 
 ney to be repaid by him as borrower, bnt the same was a special depo- 
 sit for the purposes of investment and accumulation — ^the fund not beinjr 
 distributable until the youngest child attained the age of twenty-one 
 years. The number of parts into which the fimd was then to be divid- 
 ed is left uncertain by the parol evidence. The trust restricting the 
 distribution of the fund to the survivors is not made out ; and the act 
 of the defendant, in executing a mortgage payable as mentioned, is evi- 
 dence to the contrary. In order more clearly to show that the trust was 
 not as is asserted by the defendant, the complainants have produced the 
 will of H. : and it has been made one of the points, that even admit- 
 ting the money to have been confided to defendant as stated by him, 
 still the subsequent will of the testatrix must alter and control the dis- 
 position of it. I think this correct. The money was still her money ; 
 and she might declare the trusts, and fix the distribution as to time, 
 and designate the persons or classes of persons to take. All which she 
 has done by her will. 
 
 (353) See Gregory v. Setter, 1 Dall. 193. Thompson's Les. v. 
 White, 1 Dall 424. Botjd v. M'Lean, 1 John."^. Ch. Rep. 586. 
 
 I
 
 NAMES OF STRANGERS. 
 
 157 
 
 V. Ambrose, and Ryall v. Ryall ; and appears to flow from 
 the proposition before stated ; for, during the life of the 
 nominal purchaser, no proof can be received of his parol 
 confession, as not being the best existing evidence ; and 
 after his death, it is mere parol evidence contradicting 
 the deed, and not of strength to raise a resulting trust. 
 
 In the first edition of this work the author submitted it 
 as his opinion, that the proposition, that parol proof could 
 (*)not be admitted after the death of the nominal purchas- 
 er, was not warranted by the aijhorities referred to in 
 support of it(/), and that the statute is not more broken in 
 upon by admitting parol proof after the death of the nomi- 
 nal purchaser, tban it is by allowing such proof in his life- 
 time(354). And this opinion seems to be confirmed by 
 the case of Lench v. Lench(m). The question there was, 
 whether a purchase by the late husband of the plaintiff 
 of an estate was made with some trust-money of hers, of 
 which he had obtained possession. Parol evidence was ad- 
 mitted of conversations with the husband, in order to prove 
 the fact. Sir Wm. Grant, Master of the Rolls, after pre- 
 mising that there was not only no covenant by the husband 
 to purchase land, but no stipulation in the settlement that 
 land should be purchased, but merely a proviso, that the 
 trustees, with the wife's consent alone, might invest the 
 money in land, said, that as to the ground that the pur- 
 chase was made with the trust-money, all depended upon 
 the proof of the fact, for whatever doubts might have been 
 formerlij entertained on this subject, it is now settled, that 
 
 {I) Kirk V. Webb, Prec. Cha. 84 ; Waller de Chirton's case, cited 
 i/>. ; Newton v. Preston, Prec. Cha. 133; Gascoigne v. Thwing, 1 
 Yern. 366 : Hooper v. Eyles, 2 Vera. 480 ; Crop v. Norton, 2 Atk. 74. 
 
 (?n) See Lench v- Lencli, 10 Ves. jun. 511. The point, I am told, 
 was lately decided the same way in Ireland. 
 
 (354) See commentary, per KENT, upon the text, in Boijd v. 
 »\i'Z<cff/i, 1 Johns. Ch. Rep. 586. el scq. 
 
 (*J37;
 
 158 ^^ PURCHASES IN THE 
 
 money may in this manner be followed into the land in which 
 it is invested ; and a claim of this sort may be supported by 
 parol evidence. — His Honor then examined the weight of 
 the testimony, which he held to be too contradictory and 
 uncertain to be depended upon. So, in Sir John Peachy's 
 case(n), Sir Thomas Clarke, Master of the Rolls, laid it 
 down, that frauds were out of the statute of frauds, for 
 that the Judges had resolved it was absurd that a statute 
 which was made to prevent frauds should be made a 
 handle to support them(S55). And therefore, if A. sold an 
 estate to C, and the consideration was expressed to be 
 paid by B., and the conveyance made to B., the Court 
 would allow parol evidence to prove the money paid 
 byC. 
 
 Where the evidence is merely parol, although it is 
 clearly admissible, yet it will be received with great 
 caution. Evidence of naked declarations made by the 
 purchaser himself is, as Sir William Grant observed, in 
 all cases, most unsatisfactory evidence, on account of the 
 facility with which it may be fabricated, and the impossi- 
 bility of contradicting it. Besides, the slightest mistake* 
 or failure of recollection may totally alter the eflfect of 
 the declaration. 
 
 So Lord Hardwicke laid it down that parol evidence 
 might be admitted to show the trust, from the mean cir- 
 cumstances of the pretended owner of the real estate or 
 inheritance which makes it impossible for him to be the 
 purchaser (o) (356) . 
 
 (»0 Rolls, E. T. 1759, MS. 
 (o) Willis V. Willis, 2 Atk. 71 ; and see Ryall r. Ryall, 1 Atk. 59 ; "* 
 Ambl. 413 ; and Lench r. Lench, 10 Ves. jun. 511. 
 
 (355) .Smt7/i v. Patton, 1 Serg. & Rawle, 83. See 2 Serg. & Rawie, 
 527. 
 
 (356) In Massachusetts, by st. 1783, c. 37, s. 3, all declarations or 
 creations of trusts or conlidenccs of any lauds, tenements, or heredita- 
 
 (*138) 
 
 I 
 
 i 
 
 i 
 
 i
 
 NAMES OF STRANGERS. | eg 
 
 In the late case of Lemau v. Whitley, it was held that 
 where an estate is conveyed by the owner to another as 
 
 ments are required to be in writing signed by the party, who is by law 
 enabled to grant, assign, or to declare such trust, or by his last will in 
 writing. 
 
 It cannot, therefore, be shown by parol evidence that a deed, abso- 
 lute on the face of it, was made as a security for a debt, upon an agree- 
 ment to reconvey, &c. Flint v. Sheldon, 13 Mass. 448. And the 
 statute applies to every species of trust, except such as arise by impli- 
 cation of law. 
 
 And the court will not allow of the admissifjn of parol evidence for 
 the purpose of showing that the consideration was paid by a person not 
 named in the conveyance, thereby raising a resulting trust. Goodwin 
 V. Hubbard, 15 Mass. 218 ; Runey i'. Edmands, 15 ib. 294. 
 
 In the case last cited a portion of an intestate estate was assigned 
 by the probate court, to a married daughter, she paying a sum of money ; 
 and her husband paid the sum out of his own money ; held, that this 
 created no trust to him in the estate so assigned to his wife, because 
 there was no record or deed from which the trust could be raised, ib. 
 
 In Flint V. Sheldon, supra, Jackson, J. observed — ' The tenant offers 
 parol proof that the conveyance, although absolute on the face of it, was 
 not in truth an absolute conveyance ; that the contract or agreement, 
 upon which the deed was made, was not an agreement for the purchase 
 and sale of land, but for the loan and re-payment of a sum of money ; 
 and that the deed was made upon the express condition, that it should 
 be void, or that the grantee should reconvey the granted premises, upon 
 the re-payment of the money within a certain time. On stating the 
 point in this manner, no one could doubt that such evidence is inad- 
 missible. An agreement to that effect even if made in writing and 
 signed by the grantee, would nut, unless it was under seal, operate as 
 a defeasance of the deed, nor in any manner affect the absolute title, 
 which the grantee had acquired in the land. But such an agreement, 
 if not reduced to writing, would have no effect whatever. The admis- 
 sion of such evidence would violate the fundamental principle recog- 
 nized by this court in Stackpole r. Arnold, 1 1 Mass. 27, ♦ that deeds 
 and specialties cannot be explained, or varied in their signification, by 
 parol evidence, if the t-erms made use of in the instrument are capable 
 of a sensible explanation of themselves.' The case of Reading v. 
 Weston, 8 Conn. R. 117, is to the same point. 
 
 In Bullard r. Briggs, 7 Pick. 533, where one Bates conveyed in 
 mortgage ; and a creditor of Bates levied upon his right to redeem 
 and sold the same to the demandant. The tenant claimed under a deed
 
 1 (JO OF PURCHASES IN THE 
 
 a purchaser, although he is really only a trustee, the 
 nominal seller cannot by parol evidence alone make out 
 
 from Bates whereby the latter conveyed the equity of redemption. Pa- 
 rol evidence was admitted to show that the true consideration was the 
 release of the wife's dower ; but the deed to the tenant expressed 
 no trust; and the consideration mentioned in the deed was $1500. 
 Parker, C. J. in delivering the judgment of the court says — ' Several 
 points arise out of this state of the question, which we have considered 
 with much attention. 1st. Is it competent to this tenant to avail her- 
 self of the facts proposed to be proved, in order to give validity to the 
 deed to her, on which she relies for her defence ? 
 
 The consideration proposed to be proved is different from that which 
 is expressed in the deed, and it is objected that the deed is conclusive 
 upon this point ; but we think it has been reasonably settled, that this 
 matter is open to evidence. More or less than is expressed in a deed 
 may be proved by parol evidence as the consideration, and even a diffe- 
 rent consideration, if valuable, may be proved. A deed is valid in law 
 with any valuable consideration, however small ; but as inadequateness 
 of consideration may be relied on as evidence of fraud, the party claim- 
 ing under it may show that another and a greater consideration was 
 given than that which is expressed ; and this is done to rebut the pre- 
 sumption of fraud, which might arise from the apparent consideration in 
 the deed. Cases of this sort are of frequent occurrence in the investi- 
 gation of conveyances alleged to be fraudulent. 
 
 And it is not necessary that the consideration should pass immediate- 
 ly from the grantee to the grantor. If v'^. bargains for land with B., and 
 pays the agreed price, and at «5's. request the deed is made to C, with- 
 out any fraudulent intent, C. may maintain his title to the land by prov- 
 ing the consideration so paid. And if even the design of the convey- 
 ance were, that C. should hold the land in trust for A., but he has exe- 
 cuted no writing by which that trust can be legally proved, still the title 
 of C. cannot be impeached by a creditor of B. on that account, for a 
 declaration of trust may at any time afterwards be executed, or A. may 
 confide in the integrity of C, and it is a matter only between A. and C. 
 whether the trust be executed or not. In the case supposed, B. has 
 obtained the value of his land, and his creditors are not necessarily in- 
 jured. It would be for a jury, on trial, to determine whether the trans- 
 action was bona fide, and for sufficient consideration, or a contrivance 
 to cover the property from the creditors of B. ; and on this question the 
 value of the land, compared with the amount of the consideration, would 
 be an important ingredient. 
 
 It is undoubtedly clear, that a mere voluntary settlement made by a
 
 NAMES OF STRANGERS. 
 
 161 
 
 
 a trust for himself, but he will have a lien on the estate 
 for the purchase-money(/?). 
 
 (p) 4 Russ. 423 ; Cripps v. Jee, 4 Bro. C. C. 472, sed qu. 
 
 husband upon his wife, during the marriage, he being in debt, is void 
 against creditors ; but it is equally clear, that a conveyance made in 
 trust for the wife, after marriage, upon the transfer made to him by the 
 wife of an equivalent out of her property, will be established, both in 
 equity and at law ; and it ought to be so, for the case supposes, that 
 whatever is taken from the fimds of the husband, whereby he might sat- 
 isfy his creditors, is replaced by an equal amount from the funds of the 
 wife, which his creditors could nnt otherwise roach. Post-nuptial con- 
 tracts are sanctioned upon this principle, and the convenience and inte- 
 rest of families frequently require such exchanges. If they are honest, 
 they ought to be supported ; if feigned or pretended, they will be un- 
 covered and defeated. 
 
 The consideration for this intended settlement on the wife, was her 
 right of dower in the estate which the husband was about to mortgage. 
 Without her relinquishment, he could not raise the money wanted for 
 his support and his debts. Her interest was a valuable interest, which 
 is frequently the subject of contract and bargain ; it was an interest 
 which the law recognizes as the subject of conveyance by tine in Eng- 
 land, and by deed with us. It may be denominated a contingent inte- 
 rest. Now if we find that the surrender or conveyance by the wife, of 
 a contingent interest in property, is a sufficient consideration for the 
 settlement of property by the husband upon her, then the default should 
 be taken off. The weight of authority is clearly with the affirmative. 
 The case of Dolin v. Coltman, 1 Vern. 294, in which a conveyance 
 to the wife, of the whole equity of redemption in land which the hus- 
 band had mortgaged and in which she had relinquished her right of 
 dower, was set aside in favor of two subsequent mortgagees of the hus- 
 band. They, however, were subsequent purchasers, not creditors, and 
 a distinction exists in favor of purchasers by st. 27 Eliz. which does 
 not hold in favor of creditors under the 13th of the same queen, for there 
 must be fraud in the latter case to avoid the conveyance. 
 
 A late writer on marriage settlements, Atherley, (p. 162,) who ap- 
 pears to have thoroughly considered the subject, and has reviewed all 
 the authorities, says, ' This case is but shortly reported, and the reasons 
 for the opinion do not very clearly appear. The reason, most probably, 
 was, that the settlement was more than a reasonable equivalent for the 
 interest the wife had parted with, and if so that case in no wise affects 
 the position that parting with a right of dower will support a settlement 
 vol.. II. 21
 
 ^ f*t2 OF PURCHASES IN THE 
 
 An express trust, although by parol only, will prevent 
 the resulting trust(9)(357) ; because resulting trusts are 
 left by the statute of frauds and perjuries as they were be- 
 fore ; and, previously to the act, a bare declaration by parol 
 would prevent any resulting trust. Besides, an equitable 
 (*)presumption maybe rebutted by parol evidence(/)(358); 
 for, as Lord Mansfield has observed, an equitable pre- 
 sumption is only a kind of arbitrary implication raised, to 
 stand until some reasonable proof brought to the contrary. 
 
 {q) LadyBellasis v. Compton, 2 Vein. 294. See Lord Altham r. 
 the Earl of Anglesea, Gilb. Eq. Rep. 16 ; Roe r. Popliam, Doiigl. 25. 
 
 (r) Langfielde v. Hodges, Lofft, 2.30; Rider r. Kidder, 10 Ves. 
 jun. 360. 
 
 of marriage.' This writer also supports the position, taken in this 
 opinion, that the consideration need not be expressed in the deed ; for 
 he says, if the settlement, on the face of it, appears to be purely vol- 
 untary, no notice being taken of the wife having released her jointure, 
 &c. ; yet if the fact of her having done so can be shown to have taken 
 place about the same time that the settlement was made, the court will 
 presume the settlement to have been made for that consideration. Ibid. 
 164. The case of Ward v. Shallet, 2 Ves- sen. 16, shows that there 
 is no distinction between contingent and vested interests in this respect ; 
 and the case of Lavender r. Blackstone, 2 Lev. 146, at law, decided 
 that a jointured wife may, by renouncing her present provision, become 
 a purchaser for a valuable consideration from her husband, of an ample 
 provision for herself. Chancellor Kent, vol. 2. p. 139. 145. in his Com- 
 mentaries, cites these authorities, and advances the position, that post- 
 nuptial contracts founded on the transfer by the wife, of a contingent 
 interest only, are valid against creditors. 
 
 We think, then, there is ample authority for adopting the principle, 
 that a relinquishment of dower by the wife, living the husband, is a 
 good and valuable consideration for a conveyance by the husband to 
 the wife, of property which may be considered but a fair equivalent, and 
 that such a conveyance will be valid or otherwise, according as it shall 
 appear on the trial that it was fair or fraudulent, like conveyances by the 
 husband to other persons. The only point of inquiry is, whether the 
 settler has received a fair and reasonable consideration for the thing set- 
 tled, so as to repel the presumption of fraud. 
 
 (357) See M'Guire v. M'Gotcen, 4 Des. 491. 
 
 (358) See Botsford v. Burr, 2 Johns. Ch. Rep. 416. 
 (*139)
 
 NAMES OF STRANGERS. 
 
 163 
 
 Therefore parol evidence will be admitted to prove the 
 purchaser's intention, that the person to whom the con- 
 veyance was made should take beneficially ; and if satis- 
 factory, he will be entitled to the estate(5) ; but the proof 
 rests upon him to show, that the man from w^hom the con- 
 sideration moved did not mean to purchase in trust for 
 himself, but intended a gift to the stranger(i). 
 
 Where a man merely employs another person by parol, 
 as an agent to buy an estate, who buys it accordingly 
 but denies the trust, and no part of the purchase-^noney 
 is jjaid by the principal-, and there is no written agree- 
 ment, he cannot compel the agent to convey the estate 
 to him, as that would be directly in the teeth of the 
 statute of frauds(w)(359). 
 
 And although the agent be afterwards convicted of 
 perjury in^denying the trust, yet that will not enable the 
 Court to decree a performance in specie(v) ; and, there- 
 fore, as the principal cannot avail himself, in any civil 
 proceeding, of the conviction of the agent, he is a com- 
 petent witness to prove the perjury(.r). 
 
 (s) Taj'lor v. Alston, cited in Dyer v. Dyer, Watk. Copyh. 216 ; S. 
 C. MS. ; Goodright v. Hodges, ibid. 227 ; Lofft, 230 ; 2 East, 534, 
 n. ; Maddison v. Andrews, 1 Ves. 57. 
 
 {I) See 3 Ridg. P. C. 178. 
 
 (tt) Bartlett v. Pickersgill, Burr. 2255 ; 4 East, 577, n. (6). See 
 Rastel V. Hutchinson, 1 Dick. 44. 
 
 {v) Bartlett v. Pickersgill, uhi sup. 
 
 (x) The King v. Boston, 4 East, 572. See Fell v. Chamberlain, 2 
 
 (359) See Botsford v. Burr, 2 Johns. Ch. Rep. 409. and see Hughes 
 V. JMoore, 7 Cranch, 176. But if a part only of the purchase money 
 be paid by the cestui que trust, the land will be charged with the money 
 advanced, |)ro tatito. Botsford v. Burr, 2 Johns. Ch. Rep. 410. The 
 payment or advance of money after the purchase is c ompleted, will not 
 raise a resulting trust. Botsford v. Burr, 2 Johns. Rep. 414. There- 
 fore, to raise a trust by implication or operation of law, an actual pay- 
 ment, or loan of money by the cestui que trust, at the time of the pur- 
 chase, must be shown. Steere v. Steere, 5 Johns. Ch. Rep. 1.
 
 164 
 
 OF rUKCHASES IN THE 
 
 In Crop V. Norton(//), Lord Hardvvicke appears to have 
 ('*)been of opinion, that this doctrine of resulting trust 
 onlj extended to cases where the whole consideration is 
 paid by one person, and the conveyance taken in the name 
 of the other. He said, " this is where the whole con- 
 sideration moves from such person ; but I never knew it 
 where the consideration moved from several persons ; for 
 this would introduce all the mischief which the statute of 
 frauds was intended to prevent. Suppose several persons 
 agree to purchase an estate in the name of one, and the 
 purchase-money appears to be paid by him only, I do not 
 know any case where such persons sliall come into this 
 Court, and say they paid the purchase-money ; but it is 
 expected there should be a declaration of trust." 
 
 In the case of Wray v. Steel, the point called for a de- 
 cision, and Sir Thomas Plumer, Vice-Chancellor, fol- 
 lowing the true principle, decided in favor of the result- 
 ing trust. What, his Honor asked, is there applicable to 
 . an advance by a single individual that is not equally ap- 
 plicable to a joint advance under similar circumstan- 
 ces(2)(360)? * 
 
 II. Before the statute of uses, if a father made a feoff- 
 ment to a stranger without any consideration, the law 
 raised an use by implication to himself; but if he made 
 a feoffment to his son, no use arose to the father by im- 
 plication ; because the blood, which is a sufficient con- 
 sideration, fixed and settled the estate in the son. And 
 herein the law of trusts doth (as it ought to do) agree 
 with the law of uses before the statute of H. 8. (a). 
 
 Dick. 484, supra, vol. 1, p. 114 ; and see the King v. Dalby, Peake's 
 Ca. 12, and Ihe cases cited in the note. 
 
 (y) 9 Mod. 233. 
 
 (z) 2 Ves. &. Beam. 388, 
 
 (a) See Rep. /. Finch, 341. 
 
 (360) See Eofsford v. Bun; 2 Johns. Ch. Rep. 410. 
 C*^140)
 
 NAMES OF STRANGERS. 
 
 165 
 
 Therefore, if a father purchase in the name of a child, 
 although illegitimate(6), who is without a provision(c), 
 (*)or in the joint names of such a child and of another per- 
 son(rf), it will not be deemed a resulting trust for the 
 father but a gift or advancement for thechild(e) ; because 
 a father is under an obligation of duty and conscience to 
 provide for his child in such case. And if the father die 
 without having paid all the purchase-money, his personal 
 estate must pay it for the benefit of his child(y)(361). 
 
 Where, by the custom of a manor, copyholds are granted 
 for lives successive, it has been holden, that if the father 
 pay the fine, a grant to children, as nominees, shall not be 
 an advancement for them, but a trust for the father(g"), 
 and there seems some ground to support this distinction ; 
 because the fathef could not have taken the whole estate 
 in his own name. 
 
 But this decision has been over-ruled, and it is now 
 settled, that such a purchase is, upon the general rule, 
 an advancement for the children, and not a trust for the 
 father(/i), where the grant is immediate to the children, 
 or even to the father for their lives, if they can, according 
 to the custom of the manor, take at law under such a 
 
 (6) Beckford v. Beckford, Lofft, 490 ; Fearne's Posthuma, 327 ; 
 Fonblanque's n. (1) to 2 Trea. Eq. 127, 2d edit. 
 
 (c) Eiriot V. Elliot, 2 Cha. Ca. 231 ; and see Rep. i. Finch, 341. 
 . (d) Laniplugh v. Lamplugh, 1 P. Wms. 112. 
 
 (c) Lady Gorge's case, 3 Cro. 550, cited ; Lord Grey v. Lady Grey, 
 1 Cha. Ca. 296 ; 2 Svvanst. 594-, Mumma v. Mumma, 2 Vern. 19 ; 
 Shales v. Shales, 2 Freem. 252 ; 1 Eq. Ca. Abr. 382, pi. 9 ; Anon. 2 
 Freem. 128, pi. 151 ; Taylor r. Taylor, 1 Atk. 386. 
 
 (/) Redington u. Redington, 3 Ridgway'sP. C. 106. See Reding- 
 ton r. Redington, 9th July 1805, printed case House of Lords. 
 
 (g) Dickenson i'. Shaw, cited in Dyer v. Dyer, Watk. Copyh. 216 ; 
 S. C. MS. 
 
 (h) Dyer v. Dyei-, nhi sup. ; and see Swift v. Davis, 8 East, 364, n. 
 
 (361) See Jackson v. JMatsdorf, 11 Johns. Rep. 96. Sampson v. 
 Sampson, 4 Serg. & Rawle, 333. 
 
 (*141)
 
 |gg OF PURCHASES IN THE 
 
 grant(^) : nor is it material that the purchase is of a re- 
 version expectant upon the death of a stranger(j). 
 
 A purchase by a papist incapable of purchasing, in the 
 name of a protestant son, was considered a stronger case 
 for an advancement than a purchase by a protestant 
 (*)parent ; because otherwise a constructive trust prohi- 
 bited by statute would have been raised(A;). 
 
 It has already been observed, that to make it an 
 advancement, the child must be unadvanced ; but an ad- 
 vancement in part is not material(/) ; and a child having 
 only a reversion expectant upon a life-estate, will be con- 
 sidered as unadvanced(wi) ; and even if the child be 
 advanced, yet if the father consider him unadvanced, that 
 will be sufl5cient(w). 
 
 If the child is already provided for, and the father did 
 not consider him unadvanced(o), or if the father con- 
 sidered the child, from the first, as a trustee for him, he 
 will be held to be so( p) ; but the proof of this lies on the 
 side of the person wishing to defeat the child's claim ; 
 and it seems, that although parol evidence of verbal de- 
 claration is admissible in support of the deed, it is inad- 
 missible to create a trust against it(g'). 
 
 (t) See Right v. Bawden, 3 East, 260 ; Smartle v. Penhallow, Lord 
 Raym. 994. 
 
 (j) Finch V. Finch, 15 Ves. jun. 43. 
 
 (fc) Redington v. Redington, 3 Ridg. P. C 106. See ex parte 
 Houghton, 17 Ves. jun. 251. 10 Geo. 4. 
 
 (/) See Rep. t. Finch, 326. 
 
 (m) Lamplugh v. Lamplugh, 1 P. Wms. 111. 
 
 (») Redington v. Redington, ubi sup. . * 
 
 (o) Elliot V. Elliot, 2 Cha. Ca. 231. 
 
 (p) Woodman v. Morrell, 2 Freem. 32 ; Swift r, Davis, 8 East, 
 3S4, n. See Murless v. Franklin, 1 Swanst. 13. 
 
 {q) Shales v. Shales, 2 Freem. 252 ; Lamplugh v. Lamplugh, 1 P. 
 Wms. Ill ; Taylor r. Taylor, 1 Atk. 386; Redington v. Redington, 
 3 Ridg. P. C. 106 ; Finch v. Finch, 15 Ves. jun. 43. 
 
 (*142)
 
 NAMES OF STRANGERS. |g7 
 
 In Swift V. Davis(r), where a father was the sole pur- 
 chaser of an estate for three lives, who would take succes- 
 sive, and put in the lives of himself and his two Sons ; and 
 at the same court obtained a license from the lord to him- 
 self and his mother (who had her widowhood-right in the 
 copyhold) to lease for seventy years, Lord Kenyon laid it 
 down, that in such a case, if the father afterwards grant a 
 lease by way of mortgage pursuant to such license to lease, 
 and there be a custom in the manor for the first taker to 
 (*)dispose of the estate as against the other lives, such cus- 
 tom may so far operate as to divest the legal estate of the 
 lives in reversion, and give it to the lessee. Or, if there 
 were any doubt of that, or if the license of the lord might 
 be construed to extend only to the first taker of the new 
 copy jom^/// with his mother, and the first taker alone exe- 
 cuted such license after her death, yet a court of equity 
 (even if the surviving life (the son) succeeded at law on 
 his strict legal title) would make the son, the surviving 
 life, convey to his father's lessee, and pay all the costs in 
 law and equity. 
 
 So a surrender by the father to the use of his will 
 immediately after the grant makes the son a trustee for 
 the father(5). 
 
 Possession by the father, during the infancy of his 
 child(i), will not be deemed subversive of the child's 
 claim ; for it cannot be supposed the parent would have 
 named a youth as a trustee ; and therefore his taking the 
 profits must be intended to have been done by him as 
 guardian to the son. In an early case(M), indeed, the 
 
 (>•) 8 East, 354, n. 
 
 («) Prankerd v. Prankeid, 1 Sim. & Stu. 1. 
 
 {t) See Finch, 340, 341 ; Lainplugh v. Lamplugh, 1 P. Wms. 
 112; Mumma V. Mumma, 2 Vern. 19; Redington v. Redington, 3 
 Ridg. P. C 106. Note, the case of the Attorney-general r. Bagg, 
 Hard. 135, turned on fraud. 
 
 (u) Sir George Binion v. Stone, Nels. Cha. Rep. 68 ; 2 Freem. 169. 
 See King r. Denison, 1 Ves. & Bea. 260. 
 
 (*143)
 
 Jgg OF PURCHASES IN THE 
 
 tender years of the child was considered as evidence that 
 the father did not purchase for his benefit, because he was 
 too joung to need an advancement. 
 
 A distinction has been drawn where the parent has 
 taken the profit after the child's coming of age, and when 
 of discretion to claim his right(?;) ; in which case, it is 
 said, the child shall be a trustee for the father. But this 
 cannot be depended on. It seldom happens that the 
 (*)father gives the son possession during his life ; and yet, 
 as the Court observed in the case of Lord Grey v. Lady 
 Grey(.T), in all cases whatsoever, where a trust shall be 
 between the father and son, contrary to the consideration 
 and operation of law, the same ought to appear upon very 
 plain and coherent and binding evidence, and not by any 
 argument or inference from the father's continuin^: in 
 possession, and receiving the profits, which sometimes 
 the son may not in good manners contradict, especially 
 where he is advanced but in part. 
 
 So the circumstance of the parent laying out money 
 in repairs and improvements will not make the child 
 a trustee(y). \ ' 
 
 A declaration of trust by the father, subsequently to the 
 conveyance, will not divest the gift to the child(z) ; and 
 therefore a devise by him of the estate will be inopera- 
 tive (a). 
 
 It is, however, quite clear, that according to the gene- 
 ral rule of equity, if the father devise to another the estate 
 
 («) Lloyd V. Read, 1 P. Wms. 608 ; and see Gilb. Lex Praetoria, 
 27L 
 
 {x) Rep. /. Finch, 340. 
 
 (j/) Shales v. Shales, 2 Freem. 252 ; Mumma v. Mumma, 2 Vera. 
 19. 
 
 {z) Woodman v. Morrell, 2 Freem. 32 ; Elliot v. Elliot, 2 Cha. Ca. 
 231. See Redington v. Redington, 3 Ridgw. P. C. 106. 
 
 (a) Mumma v. Mumma, 2 Vern. 19 ; Dyer r. Dyer, Watk. Copyh. 
 216; S. C. MS. 
 
 (*144)
 
 NAMES OF CHILDREN. 
 
 169 
 
 bought in the name of the child, and make other provision 
 for the child by his will, he would at this daj be put 
 to his election; although in the early case of Shales i;. 
 Shales(6), where these circumstances occurred, the child 
 was not put to his election. 
 
 If the conveyance of the fee to a son is proved to be 
 for a particular purpose, as to sever a joint-tenancy, the 
 child will be a trustee for the father(c). 
 
 A purchasp by a father, in the joint names of himself 
 (*)and son, will be considered as an advancement for the 
 child, if he is unprovided for ; and consequently equity 
 will not assist to defeat his legal claim(J). 
 
 But a purchase in the names of father and son, as joint- 
 tenants, has not been considered so strong a case for an 
 advancement as it formerly was ; it is said, that it does 
 not answer the purpose of an advancement, for it entitles 
 the father to the possession of the whole till a division, 
 and to a moiety absolutely even after a division, besides the 
 father's taking a chance to himself of being a survivor of 
 the other moiety : nay, if the son dies during his minority, 
 the father would be entitled to the whole by virtue of the 
 survivorship, and the son could not have prevented it by 
 severance, he being an infant (e). And accordingly, in 
 a case(/) where a father purchased an estate in the names 
 of himself and son, and had no other estate to which a judg- 
 ment-creditor could resort, the creditor was relieved in 
 equity against the survivorship at law ; the settlement 
 being considered as voluntary and fraudulent against cre- 
 ditors(^). 
 
 {h) 2 Freem. 252. 
 
 (c) Baylis v. Newton, 2 Vein. 28 ; and see Birch r. Biagrave, Ambl. 
 264 ; Sir Walter Raleigh's case, Hard. 497, cited. 
 
 (rf) Scroope r. Scroope, 1 Clia. Ca. 27.- 
 
 (e) Per Lord Hardwicke, 2 Atk. 480 ; and see Pole r. Pole, 1 Ves. 
 76. 
 
 (/) Stileman r. Ashdown, 2 Atk. 477. 
 
 (g-) vSee 13 Eliz. c. 5. 
 VOL. II 22 (*146)
 
 J-^Q OF PURCHASES IN THE 
 
 But there does not appear to be much weight in the 
 reasons above stated. It is evident that a moiety of some 
 estates may be a much better provision than the entirety of 
 others. The chance of survivorship which the father takes 
 is an incident to the tenancy, and extends equally to the 
 son, who, after he attains his majority, may sever the joint- 
 tenancy. If he die during his minority, it is as well 
 that the estate should survive to the father, who paid the 
 purchase-money, and perhaps took the convHynnoo to him 
 self and son as joint tenants, with the express view of 
 advancing him only in the event of his attaining that age 
 (*)at which the law considers a man capable of nianaging 
 his fortune. During the son's minority and the life of his 
 father, upon whom should he be dependent if not upon his 
 own parent ? If the father die during the son's minority, 
 the estate will survive to him ; so that, perhaps, it is im- 
 possible to contend with success, that a purchase by 
 a parent in the name of himself and child, as joint tenants, 
 is not as strong a case for an advancement as a purchase 
 in the name of the child solely. Fraud is of course an 
 exception to every rule. 
 
 A purchase in the name of a child solely, or jointly with 
 the parent's name, is not, however, w ithin the 27 Eliz.(A). 
 And therefore a subsequent purchaser, although bona fide, 
 will not be relieved against it(2). 
 
 But such a purchase fell expressly within the letter of 
 the 21st of James \.{j) if the father was a trader at the 
 time ; and his being solvent would not protect the pur- 
 chase(/c). But if the purchase was made before the 
 father engaged in trade, and without any fraudulent pur- 
 pose of becoming a bankrupt, it would have been good, 
 
 (A) C. 4. 
 
 (»') Lady Gorge's case, 3 Cro. 550, cited, 
 (j) C. 15, s. 5. See Walker r. Burrows, 1 Atk. 93. 
 {k) Fryer r. Flood, 1 Bro. C. C. 160 : Glaister r. Hewer, 8 Ves. 
 jun. 195. 
 (*146) 
 
 .1 
 
 I
 
 NAjMES OF CHILDREN. J-^J 
 
 although the father afterwards commenced tradesman, 
 and was made a bankrupt(/). 
 
 The law was partially altered by the 6 Geo. 4, c. 16, 
 s. 73, which only gives to the creditors the benefit of the 
 purchase, where the bankrupt is at the time insolvent. It. 
 deserves serious consideration whether the law should not 
 be restored. 
 
 If the father be dead, a purchase by the grandfather, 
 in the name of his grandchild, is subject to the same rules 
 as govern a purchase by a father in the name of his cliild ; 
 (*)for on the death of the father, the grandchild, is under the 
 protection of the grandfather(m) ; but in Lloyd v. Read(w) 
 this distinction does not seem to have been attended to. 
 The case, however, depended upon its own peculiar cir- 
 cumstances. 
 
 So a purchase by a husband in the name of his wife 
 is also deemed an advancement and provision for her(oj. 
 But if a purchase in the name of wife or child be after 
 marriage, and voluntary, it may perhaps be fraudulent as 
 against creditors(/7), in like manner as if the settlement 
 was of property actually vested in the husband, in even 
 which case it seems that the husband must be proved to 
 have been indebted at the time of the settlement to the 
 extent of insolvency, in order to affect the settlement(9). 
 It has, however, been strenuously argued, that a purchase 
 is not within the operation of the statute of 13 Eliz. ; for, 
 as the purchaser may give the money to the object of his 
 bounty to purchase the estate for himself, he may by the 
 same reason direct a conveyance to be made to him ; and 
 
 (/) Crisp V. Pratt, Cro. Car. 548 ; Lilly v. Osboni, 3 P. Wms. 298 ; 
 and see 8 Ves. jun. 200, 204. 
 
 (•«{,) Ebrand v. Dancer, 2 Cha. Ca. 26. 
 
 (u) 1 P. Wms. 608. 
 
 (o) Kingdome v. Bridges, Back r. Andrews, 2 Vern. 67, 120. 
 
 ip) Christ's Hospital. I). Biidgin, 2 Vern. 683. 
 
 iq) See Lusih v. Wiikin.son, 5 Ves. jun. 384. 
 
 (*J47)
 
 172 
 
 OF PURCHASES IN THE NAMES OF CHILDREN. 
 
 this seems to be the better oj)inion, where the case is clear 
 of actual fraucl(r). 
 
 A purchase by a trader in the name of his wife seems 
 subject to the same rules as a purchase by a trader in the 
 name of his child(5). But a purchase by a trader of the 
 land-tax on his wife's estate, for her benefit(i)5 or of an 
 enfranchisement of his wife's copyhold estate, or money 
 laid out by him in building on her estate, being mere 
 (*)voluntary expenditure, cannot be made a ground of 
 charge against her or her estate by his creditors, although 
 he was insolvent at the time(w). 
 
 On this subject it remains only to remark, that Lord 
 Chief Baron Gilbert observes(a;), that a difference is taken 
 between a purchase in the name of a son and of a daugh- 
 ter; for though sons are often provided for by settlement 
 of lands, yet daughters seldom are, therefore the presump- 
 tion is not so strong. The learned author does not, how- 
 ever, refer to any case in support of his position; and in 
 Lady Gorge's case she appears to have enjoyed an estate 
 purchased by her father, the Earl of Lincoln, in her 
 name(?/). Indeed, admitting the general rule, as to pro- 
 viding for daughters by settlement of lands, ivhere there is 
 a son ; yet, in the case under consideration, the purchase 
 itself is strong evidence of tlie intent, more especially as a 
 woman is an unfit trustee of a real estate. 
 
 (r) See Fletcher i\ Sidley, 2 Vern. 490 ; Proctor v. Warren, Sel. 
 Cha. Ca. 78; and 8 Ves. jun. 199. 
 
 («) See Glaister t?. Hewer, 8 Ves. jun. 195; 9 Ves. jun. 12; 11 
 Ves. jun. 377. 
 
 (t) Burrough's case, 17 Ves. jun. 267, cited. 
 
 («) Campion D. Cotton, 17 Ves. jun. 263. 
 
 (.c) Lex Prsetoria, 272. 
 
 (i/) Lady Gorge's case, 3 Cro. 550, cited. 
 
 (*148)
 
 OF PURCHASES WITH TRUST MONEY. | -73 
 
 SECTION 111. 
 Of Purchases with Trust Money. 
 
 If a trustee, or executor, purchase estates with his trust- 
 money or assets, and take the conveyance in his own 
 name, without the trust appearing on the face of the 
 deeds, the estates will not be liable to the trusts, although 
 he die insolvent, unless the application of the purchase- 
 money can be clearly proved. And the same principle 
 applies to a purchase by a husband with trust-money be- 
 longing to his wife, of which he may have obtained pos- 
 session from the trustee, whether with or witfiout the wife's 
 (*)consent(362) ; or to a purchase by an agent or steward 
 with hionies remitted to him by his principal(z). 
 
 (z) Bennet v. Mayhew, 1 Bro. C. C. 232 ; 2 Bro. C. C. 287, cited. 
 
 (362) See J\Iethodist Epis. Church v. Jaques, 1 Johns. Ch. Rep. 450. 
 
 Where the executor, or a trustee, becomes the purchaser, he takes it 
 clothed with the same trusts as it was liable to in his hands previous to 
 the sale. Thus, in Bruch v. Lantz, 2 Rawle's R. 392, where in a sale 
 made by the executors of the will, one of the executors, became a joint 
 purchaser, and afterwards became the sole owner of the estate ; held, 
 that the sale was voidable : for the power in the will constituted the 
 executors trustees for the devisees and heirs ; the general law-, with the 
 devise, trustees for the benefit of the creditors. Where, then, the ex- 
 ecutor becomes the purchaser, he takes it clothed with the same trusts 
 as it was liable to in his hands previous to the sale ; and though ratified 
 by the devisees and heirs, the creditors may nevertheless take the land 
 to satisfy their executions. Rogers, J. observed, that " this did not 
 contravene the principle of Grant r. Hook, 13 S. & R., 359, that where 
 the teftator authorized his executors to sell as much of his real estate 
 as should be necessary to pay his debts and educate his minor children, 
 the executors had power to sell the real estate of the testator free from 
 
 (*149)
 
 174 
 
 OF PURCHASES WITH TRUST MONEY. 
 
 Jn the old cases(«) the courts of equity were much more 
 Strict in the proof they admitted of the application of the 
 
 (a) Kirk v. Webb, Prec. Cha. 84 ; Heron v. Heron, Prec. Cha. 
 163 ; Halcot v. Markant, Prec. Cha. 168 ; Kendar v. Milward, 2 Vern. 
 440 ; Prec. Cha. 171. See Cox v. Bateman, 2 Yes. 19. 
 
 the incumbrance of his debts, and the purchaser was not bound to see 
 to the application of the purchase money. And this is doubtless the law, 
 taken with the qualification, that the purchaser is not buyer and seller ; 
 for the purchaser, who is a stranger, is not answerable for the miscon- 
 duct of the executor, arising from a misapplication of the purchase mo- 
 ney. The law regards the executor as a fraudulent trustee, as having 
 acted in contravention of public policy. 
 
 It seems immaterial whether the executor or administrator uses his 
 own money ; for it is the relation, the office and trust which alone are 
 regarded. Dmves, Judge, &c. v. Boylsion, Oct. T. 1812, 9 Mass. 
 337. 
 
 Debt on bond, to plaintiff, as judge of Probate, by defendant as ad- 
 ministrator de bonis «o/i with a copy of the will of Thomas Boylston, 
 late o{ London, be annexed pursuant to statute of 1785, c. 12. 
 
 The action was prosecuted for the benefit of the inhabitants of Bos- 
 ton, named as residuary legatees in said will. 
 
 Seivall, J. — The general question is, whether the judgment recovered 
 by the defendant, as administrator against one G. in this state, so far as 
 satisfaction has been had, is to be inventoried and accounted for by 
 defendant, according to the condition of this bond. — The defendant re- 
 lies upon an assignment to himself of the judgment by the assignees of 
 said Thomas B., &c. bankrupts. 
 
 The following points were decided. 1. That the assignees of a 
 bankrupt in England, cannot recover, in our courts, a debt due to the 
 bankrupt, in their own names. 2. The assignment of a chose in action 
 is not defeated by the death of the assignor ; but the assignor may use 
 the name of the executor or administrator ; and where the assignee 
 himself becomes afterwards the administrator, he may recover the same, 
 as administrator, to his own use. 
 
 3. If the assignees of a bankrupt deceased, assign the property of the 
 deceased, to his administrator ctim leslamento annexo, for his own use 
 and benefit, he is nevertheless accountable to the creditors and others 
 entitled under the will. Seicall, J. in delivering the opinion of the Wourt, 
 said — Upon the whole, if it was competent for defendant to purchase the 
 property in question to his use, there is sufficient evidence of the in- 
 
 I
 
 OF PURCHASES WITH TRUST MONEY. 
 
 175 
 
 money than they now are ; but it was always very clear, 
 that upon sufficient proof of the trust-money having been 
 
 tention of the assignees to sell, and of the defendant to purchase to his 
 own use ; and their contract must avail accordingly. 
 
 But the demands assigned were not recoverable at the time of the 
 assignment, but, by the intervention of an administrator in this jurisdic- 
 tion, where the debts were due, and the debtor was then living ; — nor 
 could the assignees themselves have recovered the demands to the ex- 
 clusion of the creditors of the deceased bankrupt here. (Doug. 170). 
 The trusts and purposes, for which these demands had been vested in 
 the assignees were then nearly fulfilled ; and the sufficiency of the ef- 
 fects to respond the claims were then capable of being ascertained ; 
 and for the surplus property they were in effect the trustees of the de- 
 ceased, and of his representatives afterwards. The defendant as admin- 
 istrator had authority to enforce the execution of their trust ; and it had 
 become his duty to exercise this authority for the use and benefit of the 
 creditors and legatees of the deceased testator. Indeed the rights of the 
 deceased resulting upon the limitations upon the property in (he hands 
 'of the assignees, and from their covenants to rcconvey when the trusts 
 in favor of the creditors had been fulfilled, were in the nature of c/ioses 
 in action, which had vested in the defendant as administrator. His ac- 
 ceptance of the assignment, operated as a discharge of the assignees. 
 But it is said that a remedy in a case of trust can be enforced only in 
 Chancery. It should be recollected that executors and administrators 
 are trustees, and amenable as such in courts of law, as well as in Chan- 
 cery. The rules and principles respecting (he office and duty of exec- 
 utors and administrators are, with a few alterations, the same here as in 
 England. The personal estate of a testator or intestate vests in his ex- 
 ecutor or administrator, including his bonds, contracts, promises, and 
 other clioses in action, as well as his goods and chattels. If they release 
 a debt or contract, by which his testator or intestate was entitled to a 
 sum of money or other advantage, the release is in his own w.'-ong, and 
 he is chargeable for the amount or value. If he compounds debts or 
 mortgages, and buy them in for less than is due upon them, the execu- 
 tor or administrator is not to have the advantage to himself; but it be- 
 longs to the creditors or legatees, or party entitled to the surplus. So, 
 if he redeems a pledge of the testatjr, it shall be assets in his hands 
 to pay debts and legacies. 
 
 The principle in the authorities for these positions is, (hat executors, 
 &c., are trustees, who are incompetent, without the approval of the 
 jurisdiction to which they are accountable, to make to themselves any 
 part of the property in trust.
 
 176 
 
 OF PURCHASES WITH TRUST MONEY. 
 
 laid out in the purchase of the estate, a trust would result 
 and be decreed accordingly(6)(363). Parol evidence is, 
 in these cases, admissible either in the life-time, or after 
 the decease of the trustee : but unless there are corro- 
 borating circumstances, as a writing under the trustee's 
 hand, stating the application of the money, or the inabili- 
 ty of the trustee to make the purchase with other funds(c), 
 mere parol evidence of declarations supposed to be made 
 by the purchaser will be received with great caution(364). 
 
 (6) Anon. Sel. Cha. Ca. 57 ; Lane v. Dighton, Ambl. 409 ; Balg- 
 ney v. Haoiilton, cited ibid. ; Ryall v. Ryall, 1 Atk. 59 ; Ambl. 413; 
 and see Earl of Plymouth v. Hickman, 2 Vern. 167. 
 
 (c) See Lench v. Lench, 10 Ves. jun. 511 ; Wilson v. Foreman, 2 
 Dick. 693, as corrected by the Master of the Rolls, 10 Ves. jun. 519 ; 
 and see Anon. Sel. Cha. Ca. 67. 
 
 It is immaterial whether the executor or administrator used in the 
 purchase his own money : it is the relation, the office and trust, 
 which alone are to be regarded. The transaction if confirmed, would 
 be in itself a devastavit. To sanction the claim of the defendant, would 
 be to sanction a breach of trust. 
 
 The law has wisely forbidden trustees from acting in the double ca- 
 pacity of buyers and sellers. But their acts are not void ; but voidable 
 by the cestui que trust. Thus, in Den v. Knight, 6 Hals. R. 385, 2 ib. 
 175, where a deed of conveyance was made by executors, who were 
 authorized to make sale of the real estate ; and they sold to a third per- 
 son ; but with the intent that the purchaser should reconvey to them ; 
 the Court considered the conveyance voidable ; but strangers, and par- 
 ties to the deed or those claiming under them, cannot make the objec- 
 tion. To the same effect is the case of Banks v. Judah, 8 Conn. 145, 
 which related to the sale of the capital stock of a manufacturing corpo- 
 ration : A majority in interest agreed to sell ; and by their agent sold, 
 and through an agent the same proprietors purchased ; and with the pro- 
 ceeds formed a new company : held, that the sale might be avoided by 
 such of the parties in interest as were not concerned in the transaction. 
 Relief, however was not granted in that case on account of the length 
 of time which had elapsed. 
 
 (363) See JSIelhodist Epis. Church v. Jaques, 1 Johns. Ch- Rep. 
 457. See also Wallace v. Duffield, 2 Serg. & Rawle, 529. 
 
 (364) See Botsford v. Burr, 2 Johns. Ch. Rep. 412. and see 2 Serg. 
 & Rawle, 527.
 
 OF PURCHASES WITH TRUST MONEY. 
 
 177 
 
 Where a trustee or agent is bound hy the trust to lay 
 out the money in land, if he lay it out accordingly, it will 
 be presumed to have been done in execution of the 
 trust(c^): 
 
 But if a trustee has considered himself entitled to the 
 trust-money for his own benefit, no presumption can be 
 raised in opposition to this fact, that he intended any 
 lands he may have bought with the trust^money to be 
 subject to the trust(e). 
 
 (*)Here we may introduce a case, where a man, on his 
 marriage, contracted to assure all such personal estate as 
 he should, during the joint lives of himand his wife, be 
 possessed of, upon certain trusts. He purchased a real 
 estate, for which he paid partly out of his own monies, 
 and partly out of monies borrowed on his personal se- 
 curity. It was insisted, that the real estate was bound 
 by the trusts : but Lord Eldon determined, that it be- 
 longed to the heir, but chai*ged for the benefit of the per- 
 sons claiming under the trust, with the purchase-money 
 paid by the husband out of his own funds and lasting 
 improvements on the estate ; and also with the money 
 borrowed, which he in his life-time paid off out of his 
 personal estate, and the estate was held the primary fund 
 for payment of the money borrowed. In this case it will 
 be seen that the application of the settled fund was 
 clearly traced, for all the husband's personal estate was 
 bound by the settlement ; and the only question was, 
 whether the cestui que trust should have the estate, or the 
 trust-fund laid out in the purchase of it(f). 
 
 {d) See the cases in Sect. 4, infra. 
 
 (e) Perry v. Phelips, 4 Ves. jun. lOS ; 17 Ves. jiin. 173 ; and see 
 Cox V. Paxton, 17 Ves. jun. 329 ; Savage v. Carroll, 1 Ball & Beatty, 
 265 ; supruy Vol. 1, p. 180. 
 
 (/) Lewis r. Madocks, 8 Ves. jun. 150; 17 Ves. jun. 48. See 
 Denton i-. Davies, 18 Ves. 499. 
 
 VOL. M. 23 (^l.'iO)
 
 178 
 
 OF THE PERFORMANCE OF COVENANTS 
 
 SECTION IV. 
 
 Of the performance of a Covenant to purchase and settle 
 
 an estate. 
 
 Where a man covenants to purchase and settle, or, 
 having no real estate, to convey and settle lands, and after- 
 wards accordingly purchases lands of equal or greater 
 value, but neglects to settle them, yet they shall be held 
 to have been purchased with an intent to perform the 
 (*)covenant, and shall accordingly go in performance of 
 it(^), and the heir must give up the estate, although he is 
 not the person entitled to the benefit of the covenant(/i). 
 
 It is even a general rule in equity, that where a man 
 covenants to do an act, and he does that which may pro 
 tanto be converted to a completion of the covenant, he 
 shall be presumed to have done it with such intention(i). 
 Therefore, where the covenantor has purchased lands, but 
 not of sufficient amount to wholly perform the covenant, 
 yet they shall go in performance of it as far as they will 
 extend(A:). It may not be possible to lay out all the 
 money in one purchase ; but that is not a sufficient reason 
 why the estates actually purchased should descend to the 
 heir at law for his own benefit, to the entire ruin, perhaps, 
 of the rest of the family. 
 
 (g-) Wilcocks V. Wilcocks, 2 Vein. 558 ; Deacon v. Smith, 3 Atk. 
 323. 
 
 Qi) Garthshore v. Chalie, 10 Ves.' jun. 9. 
 
 (j) See Sowden v. Sowden, Cox's n. 3 P. Wms. 228. 
 
 \k) Lechmeret). Earl of Carlisle, 3 P. Wms. 211; For. 80; MS. 
 App. No. 24, a fuller note of this part of Lord Talbot's judgment ; 
 Whorwood v. Whorwood, 1 Ves. 540 ; Sowden v. Sowden, 3 P. Wms. 
 228, n. ; 1 Bro. C. C. 682. See 4 Ves. jun. 116, 117; 10 Ves. jim. 
 9. 516 ; Gardner v. Lord Townsend, Coop. 301. 
 (*151)
 
 TO PURCHASE ESTATES. i «q 
 
 The like principle has been extended to a case where 
 the covenantor was io pay the money to trustees, to be by 
 them laid out in the purchase of estates(/). 
 
 It is not material in these cases, that the purchase was 
 to be made with the consent of persons whose consent 
 was never even applied for(m), or. within a limited time, 
 and the purchase was not made till after the expiration of 
 the time appoint ed(w). Nor is it important that there 
 was a subsisting mortgage on the estate, upon which the 
 covenantor took up money from another person in order 
 to enable him to complete the purchase(o). And it will 
 ('*)not vary the case, that the covenantor had an option to 
 settle a rentcharge instead of the lands themselves, unless 
 he have shown an intention to avail himself of his right 
 to elect(y;). 
 
 But where a clear intent appears to lay out the entire 
 sum in the future purchase of lands, estates of which the 
 covenantor was seised at the time of the covenant, and 
 which he permitted to descend, cannot go in performance 
 of the agreement, because such clearly could not have 
 been his intention(9). 
 
 And, to enure as a performance, the property purchased 
 must be such as will answer the intent of the settle- 
 ment(r). Therefore, under a covenant to purchase fee- 
 simple lands in possession, estates in reversion, expectant 
 upon lives will not go in performance(s), unless, perhaps, 
 
 (/) Sowden v. Sowden, 1 Bro. C. C. 582. 
 
 (m) Lechmere v. Earl of Carlisle, ubi sup. 
 
 In) S. C. ; and see 3 Atk. 329. 
 
 (o) Deacon v. Smith, 3 Atk. 323. 
 
 (;}) Deacon v. Smith, 3 Atk. 323. 
 
 (q) Lechmere v. Earl of Carlisle, For. 80, el ubi sup. See Davys 
 V. Howard, 5 Bro. P. C. 552, 
 
 (>•) See Lewes v. Hill, 1 Ves. 274. 
 
 (s) Lechmere v. Earl of Carlisle, 3 P. Wms. 211 ; Deacon v. Smith, 
 3 Atk. 323 ; Whorwood v. Whorwood, 1 Ves. 540. 
 
 (*152)
 
 180 
 
 OF THE PERFORMANCE OF COVENANTS 
 
 they fall into possession in the covenantor's life-time ; 
 neither will leaseholds for lives, nor terms of years, even 
 with covenants to purchase the fee, go in performance, as 
 they cannot descend to the heir(/). 
 
 So a moiety of a house would not be considered a kind 
 of property within a covenant to purchase lands of inherit- 
 ance : nor would lands, having a different descent, as 
 borough English lands, which descend to the youngest son, 
 instead of lands descendible to the eldest son, according to 
 the course of the common law(w). Neither will copyhold 
 estates go in part performance of a covenant to purchase 
 freehold lands, where the nature of the tenure would pre- 
 vent compliance with the terms of the settlement, as where 
 the estate is to be settled on one for life without impeach- 
 ment (*)of waste(x). But where this circumstance does 
 not occur, copyhold estates may, it should seem, go in 
 part performance of a covenant to purchase real es- 
 tates(?/), although Lord Hardwicke seems to have doubt- 
 ed whether copyhold lands could go in performance, as 
 they are liable to different tenures and to forfeiture(2). 
 
 Where the purchase was made bona fide with an intent 
 to perform the covenant, the lands must, it is conceived, 
 in most cases be taken at the price paid for them(«), or 
 at least at their value at that time. This construction, 
 however, is not made to the prejudice of purchasers, for 
 if the covenantor sell the estates, it will be evidence of his 
 intention that they should not be bound by the settlement, 
 and therefore they could not be followed in the hands of 
 
 {I) Lechmere v. Earl of Carlisle, ubi sup. 
 
 («) Pennill v. Hallett, Ambl. 106. 
 
 {x) Pennill v. Hallett, Ambl. 106. 
 
 (j/) Wilks V. Wilks, 5 Vin. Abr. 293, tbl. 39. Note, the covenant 
 was generally to purchase lauds. 
 
 {z) Whorwood v. Whorwood, 1 Vcs. 540. 
 
 (o) Lechmere v. Earl of Carlisle, For. 80. See and consider Pen- 
 nill r. Hallett, Ambl. 106. 
 
 (*163)
 
 TO PURCHASE ESTATES. |g| 
 
 the purchaser(6). But it is no objection in these cases 
 that the arrangement will affect specialty creditors, for it 
 is in the power of the owner of the estate to prefer one 
 specialty creditor to another, because none of them have 
 any specific lien on the lands(c). 
 
 It may be considered as a general rule, although it may 
 , not hold universally true, that a covenant to convey and 
 s settle lands, will not be a specific lien on the lands of the 
 covenantor, but the covenantee will be a creditor by spe- 
 cialty. In one case, where a man gave a bond, before 
 marriage, to convey sufficient freehold or copyhold estates, 
 to raise 600/. per annum, for his intended wife, in bar 
 of dower, she was decreed to be a creditor, by specialty of 
 her husband, and to be entitled to be paid the arrears 
 of her annuity out of his personal estate, in a course of 
 administration ; and if the same should not be sufficient, 
 (*)then out of the real estates of which he died seised in 
 fee-simple, and if those should not be sufficient, then out of 
 the real estates in settlement of which he was tenant in tail, 
 provided such deficiencies did not exceed the amount of the 
 dower which she would have been entitled to thereout, 
 in case she had not accepted the annuity for her life, as 
 (tforesaid(d). Lord Thurlow, in a subsequent stage of 
 the cause, said, that the Court had charged the real, in 
 aid of the personal, by a very subtle equity, because, if 
 she had not made a contract of forbearance of dower, 
 the entailed estate would have been liable to her dow- 
 er(366). 
 
 {h) Smith V. Deacon, 3 Atk. 323. 
 
 (c) S. C. 
 
 (d) Forster v. Forster, 3d Feb. 1787, MS. See 3 Bro. C. C. 490. 
 Consider now the operation of the 3 & 4 Will. 4, c. 106. 
 
 (366) The husband, by an ante-nuptial agreement, in consideration of 
 his intended wife's fortune, covenanted to charge his whole estate with 
 a certain sum, as a settlement on her and the children of the marriage ; 
 
 (*164)
 
 182 °^ "^^^ PERFORMANCE OF COVENANTS, &c. 
 
 — He received her fortune, and died insolvent ; — Afterwards, an addi- 
 tional part of her fortune, unexpectedly, came into the hands of his ex- 
 ecutors ; — In such case, as the husband would have been entitled to 
 the monies in the hands of the executors, had he been alive, a court of 
 equity will protect the rights of the wife acquired by virtue of the agree- 
 ment, against the claims of creditors ; and direct, that the funds thus 
 in the hands of the executors, be first applied to make up the sum 
 charged on the husband's estate, for the benefit of the wife. Games 
 v. Smith, 2 Des. 299.
 
 [ 183 ] 
 
 (*)CHAPTER XVI. 
 
 or THE PROTECTION AND RELIEF AFFORDED TO PUR- 
 CHASERS BY STATUTES, AND BY THE RULES OF 
 EQUITY. 
 
 In the former chapters an attempt has been made to trace 
 the purchase from its inception by contract, to its comple- 
 tion by conveyance ; the subjects which may be said to 
 arise out of the conveyance have been treated of; and it 
 has been considered who are incapable of purchasing 
 estates. Let us now suppose the purchase to be com- 
 pleted, and proceed to inquire to what protection and 
 relief purchasers are entitled. The protection and relief 
 afforded to purchasers appear to arise either from positive 
 statutes, or from the rules of equity. The common law 
 hath, indeed, done all which, from its peculiar nature, it 
 can do in support of the claims of bona fide purchasers ; 
 for we are told, that the maxims of the common law, 
 which refer to descents, discontinuances, non-claims, and 
 to collateral warranties, are only the wise arts and intentions 
 of the law to protect the possession, and strengthen the 
 rights of purchasers(«). Lord Mansfield indeed held, that 
 in every case between purchasers for valuable considera- 
 tion, a court of equity must follow^ and not lead the law. 
 And the rules of equity were, in his time, pretty generally 
 adopted in the courts of law(6). It could not long escape 
 
 (a) Finch, 104. See Bac. on Uses, 36. They are now mostly 
 allered by the late statutes. 
 
 (t) Keech^ r. Hall, Dougl. 22 ; Weakley v. Bucknell, Cowp. 473. 
 This practice did not escape the inquiring eye of Junius ; see vol. 2. 
 41, 384. 
 
 (*155)
 
 OF PROTECTION FROM 
 
 184 
 
 observation, that from the peculiar constitution of this 
 (*)country, the rules of law and equity ought ever to con- 
 tinue distinct ; and accordingly all the great Judges who 
 have succeeded Lord Mansfield have determined that the 
 legal estate must prevail at law(c). We need, therefore, 
 only consider, first, the statutes which have been passed 
 for the protection or relief of purchasers : and, secondly, 
 the rules of equity in favor of purchasers. 
 
 SECTION T. 
 
 Of fraudulent and voluntary Settlements, and Settlements ■ ^ 
 with Powers of Revocation. 
 
 I. First then. By 27 Eliz. c. 4.(f/) it is enacted, that 
 all conveyances, grants, &c. out of any lands, tenements, 
 or other hereditaments, to be had or made for the intent 
 and of purpose to defraud and deceive such persons as 
 shall purchase the same lands, tenements, or other here- 
 ditaments, so formerly conveyed, granted, Sic. or any rent, 
 profit or commodity, in or out of the same, shall be deemed 
 and taken only as against such persons and their repre- 
 sentatives as should so purchase for money or other good 
 consideration, the same lands, tenements, or other here- 
 ditaments, or any rents, profits, or commodity in or out 
 of the same, to be utterly void. 
 
 But it is provided, that the act shall not extend to make 
 
 (c) See 5 East, 138 ; 6 Ves. jun. 174 ; 3 Bos. & Pull. 162 ; and 
 1 Scho. & Lef. 66 ; Doe r. Morris, 1 Taunt. 62. 
 
 (d) Made perpetual by 30 Eliz. 18, s. 3. 
 (*156) 

 
 VOLUNTARY ^SETTLEMENTS. 
 
 185 
 
 void anj conveyance, &c. to he made for good considera- 
 tion, and bona fine, to any person. 
 
 And it is also enacted, that if any person shall make 
 any conveyance, &c. of any lands, tenements or heredita- 
 ments, with any clause of revocation or alteration at his 
 (*)pleasure of such conveyance, &c. and shall afterwards 
 sell the same to any person or persons for money or other 
 good consideration paid or given (the said first conveyance, 
 &c. not being revoked according to the power reserved 
 by the said secret conveyance, &c.), then the said first con- 
 veyance, &:c., as touching the lands, tenements, and here- 
 ditaments so after sold, against the vendees, &c. shall be 
 deemed and be void, and of none effect ; provided that 
 no bona fide mortgage should be affected by the Act. 
 
 To take advantage of this statute, a person must have 
 purchased bona fide and for a valuable consideration(367), 
 but the Court will not enter into the adequacy of the con- 
 sideration, unless it was so small as to be palpably fraudu- 
 lent(e)(3t)8). Whatever consideration would be sufficient 
 to support an original settlement will be sufficient to avoid 
 a prior voluntary one. The subject of the sale must, 
 however, be an existing lawful interest. Thus in a case 
 
 (e) Upton V. Bassett, Cro. Eliz. 444 ; Doe v. Routledge, Cowp. 
 705 ; Needham v. Beaumont, 3 Rep. 83, b ; 2 And. 233 ; Doe v. 
 Routiedge, Cowp. 705. See Bullock f. Sadlier, Ambl. 764 ; Hill v. 
 bishop of Exeter,'2 Taunt. 69 ; Doe v. James, 16 East, 212. See 1 
 Ves. & Beam. 184; Treatise of Powers, 4th edit. p. 418. 
 
 (367) See Jackson v. Henry, 10 Johns. Rep. 185, 197. Anderson 
 V. Roberts, on appeal, 18 Johns. Rep. 515. Contra, S. C. 3 Johns. 
 Ch. Rep. 371. Preston v. Crofut, 1 Conn. Rep. 527, in note. Sler- 
 ry V. Arden, 1 Johns. Ch. Rep. 261, 267 ; and see Anon. 2 Des. 304. 
 Taylor v. Heriot, 4 Des. 227, 232. See also, Jackson v. Ham, 15 
 Johns. Rep. 263. Seiton v. Whcaton, 8 Wheat. 229. 
 
 (368) See Hildreth v. Hands, 2 Johns. Ch. Rep. 35. S. C. on ap- 
 peal, 14 Johns. Rep. 493. Boijd v. Dunlap, 1 Johns. Ch. Rep. 478. 
 Sterry v. Arden, 1 Johns. Ch. Rep. 267. S. C. on appeal, 12 Johns. 
 Rep. 536. 
 
 VOL. II. 24 (*157}
 
 186 
 
 OF PROTECTION FROM 
 
 mentioned by Sir Edward Coke, in his commentary on 
 Littleton (/), A. had a lease of certain lands for sixty 
 years, if he lived so long, and forged a lease for ninety 
 years absolutely, and he by indenture reciting the forged 
 lease, for valuable consideration, bargained and sold the 
 forged lease, and all his interest in the land to B. Sir 
 Edward Coke adds, that it seemed to him that B. was no 
 purchaser within the statute of 27 Eliz., for he contracted 
 not for the true and lawful interest, for that was not known 
 to him ; for then perhaps he would not have dealt for it. 
 and the visible and known term was forged ; and although 
 by general words the true interest passed, notwithstand- 
 ing he gave no valuable consideration, nor contracted for 
 (*)it. And of this opinion were all the Judges in Sergeant's 
 Inn. It is, however, a very narrow construction. 
 
 In the construction of this Act it hath been holden, that 
 although the fraudulent conveyance is not made by the 
 vendor himself, yet it is void against a purchaser. There- 
 fore, if a father make a fraudulent lease, and then die, and 
 the person claiming under him sell the estate, the pur- 
 chaser shall avoid the lease, whether the vendor did or 
 did not know of its existence(^). 
 
 And the statute being general, and made to suppress 
 fraud, extends to fraudulent conveyances to the King. 
 Therefore, in the case of Magdalen College(/i), it was 
 resolved by Lord C. J. Coke, that if tenant in tail be seised 
 of land, the remainder over in tail or in fee, and he in re- 
 mainder knowing the tenant in tail will alien the land, and 
 by recovery bar his remainder, to the intent to deprive the 
 tenant in tail of his birthright, and the power which the 
 law gives him to bar the remainder, and on purpose and 
 with intent to deceive the purchaser, grants his remainder 
 
 (/) Co. Litt. 3, b. See Hatton v. Jones, Bull. N. P„ 90. 
 (g) Burrell's case, 6 Rep. 72 ; Jones v. Groobham, Co. Litt. 3 b. ; 
 Warburton v. Loveland, 1 Dow. & Clark, 497. 
 (/») 11 Rep. 66, 
 (*168) 

 
 VOLUNTARY SETTLEMENTS. 1017 
 
 to the Queen by deed enrolled, and afterwards tenant in 
 tail, for a valuable consideration, aliens the land by a 
 common recovery, and dies without issue, the purchaser 
 shall enjoy the lease against the Queen, by the statute of 
 Elizabeth. And of such opinion was Popham, C. J. open- 
 ly in the Exchequer Chamber. This is a very important 
 resolution, and shows in the strongest view, how liberal a 
 construction this statute hath received, for the Queen was 
 not a party to the fraud, and by her prerogative at com- 
 mon law the reversion in her could not be affected by a 
 common recovery(z). 
 
 (*)It hath been determined(/c), that notice to a pur- 
 chaser of a fraudulent conveyance is of no consequence, 
 for the statute makes it absolutely void(369). 
 
 A conveyance for payment of debts generally, to which 
 no creditor is a party, nor any particular debts expressed, 
 is a fraudulent conveyance within this statute, against a 
 subsequent purchaser for valuable consideration(/). 
 
 But if the conveyance were made with an honest intent, 
 and the purchaser had notice of the trust, it seems that 
 he will not be relieved against it(»i). And upon the 
 whole, as Mr. Roberts justly remarks(w), these are cases 
 of such danger to purchasers, that a prudent adviser can 
 hardly recommend a title which has been at all the sub- 
 ject of arrangements for the payment of debts remaining 
 unsatisfied(370). 
 
 (i) See "Wiseman's case, and Chomley's case, 2 Rep. 15.50; and 
 see 2 Ro. Abr. 393, T. Recoverie Common ; see 3 & 4 Will. 4, c. 74. 
 
 (fc) Gooch's case, 5 Co. 60, a. 
 
 {I) Leech v. Leech, 1 Cha. Ca. 249. See Wallwyn v. Coutts, 3 
 Mer. 707. 
 
 (m) Langton r. Tracy, 2 Cha. Rep. 16. See Stevenson v. Hay- 
 ward, Prec. Cha. 310. 
 
 (n) Vol. Conv. 335. 
 
 (369) See Sterry v. Arden, 1 Johns. Ch. Rep. 268-. 
 
 (370) Sec Dey v. Dunham, 2 Johns. Ch. Rep. 189, et seq. 
 
 (*159)
 
 188 
 
 OF PROTECTION FROM 
 
 II. It has in numerous crises been holden, that volun- 
 tary setlements are within the meaning of the Act, al- 
 thon"h the purchaser had direct notice of the settlement 
 at the time of his purchase. This doctrine has, however, 
 been frequently questioned, but appears to have been in- 
 controvertibly settled by the case of Taylor v. Stile(o), 
 which arose in Yorkshire(371). 
 
 In that case, A. settled lands, after his marriage, on his 
 wife for life, and then sold the lands to 5., who had notice 
 of the wife's estate for life, and took counsel's opinion on 
 the point. A. died, and his wife brought her bill to be 
 let into her life estate. Lord Northington held the law to 
 be clear, that a subsequent purchaser for a valuable con- 
 sideration, (*)though with notice, should set aside a volun- 
 tary settlement; but it being suggested that there was no 
 valuable consideration, an issue w^as directed to try that 
 fact, which coming on before Mr. Justice Bathurst, at 
 York, he suffered the counsel to enter into the equity ; 
 and after hearing the argument, said, he knew Lord Hard- 
 wicke had determined, in twenty instances, in the same 
 manner as Lord Northington. The consideration was 
 proved, and the case came on to be heard before the 
 Chancellor on the equity reserved, who thereupon dis- 
 missed the bill. 
 
 And in a recent case. Lord Chief Justice Mansfield 
 held, that the Court could not, without overturning the 
 settled and decided law, hold that the prior voluntary con- 
 veyance could defeat a conveyance to a purchaser for a 
 valuable consideration(/?). The point has been recently 
 decided the same way by the Court of Exchequer(9), and 
 
 (o) Chancery, 1763, MS. ; and see Evelyn v. Templar, 2 Bro.. C. 
 C. 148. 
 
 (p) Doe V. Martyr, 1 New Rep. 332. 
 {q) Doe t'. Hopkins, 9 East, 70, cited. 
 
 (371) See Sterry v. ^rde.n, 1 .Johns. Ch. Rep. 270. S. C. on ap- 
 peal, 12 Johns. Rep. 536.. 
 f*]60>
 
 VOLUNTARY SETTLEMENTS. ] g9 
 
 since that, bj the Court of King's Bench(r), although in 
 the last case the purchaser had notice of the settlement ; 
 and upon a trial at nisi prius, Mr. Justice Heath attached 
 some importance to the circumstance of notice, and the 
 jury found for the defendants claiming under the settle- 
 ment, conceiving, as I am told, the settlement not to be 
 ! fraudulent within the statute, though voluntary. In a still 
 \ later case, the rule was again confirmed by the Court of 
 Common Pleas(5). Nor will a purchaser be affected by a 
 covenant in the settlement, that the purchase-money should 
 be paid to trustees, to be laid out by them in other lands 
 to be settled to the same uses(0. 
 
 But a deposit of the title-deeds by a settler after a 
 (*)voluntary settlement, will not prevail at law against 
 the settlement ; trover may be maintained for the deeds. 
 The Court, in the case(M) in which this point arose, ob- 
 served, that upon the deposit of the deeds the defendants 
 required no more than a right to go into a Court of 
 Equity to compel a legal conveyance. The language of 
 the statute clearly specifies a purchaser ; and how could 
 they say that, upon a mere deposit of deeds entitling 
 the party perhaps to apply to a Court of Equity, he be- 
 comes, in the language of the act, a purchaser either in 
 fee-simple, fee-tail for life, lives or years ? 
 
 Here it will be proper to consider, what is a voluntary 
 settlement, and what will be deemed a valuable consi- 
 deration within the act, so as to protect a settlement 
 against subsequent purchasers. 
 
 Any conveyance executed by a husband in favor of 
 
 ()•) Doe V. Manning, 9 East, 59. 
 
 («) Hill V. Bishop of Exeter, 2 Taunt. 69 ; and see 18 Ves. jun. 
 \4l,per Sir Wm. Grant ; and see Gully v. Bishop of Exeter, 10 Barn. 
 & Cress. 601. 
 
 {t) Eveiyn v. Templar, 2 Bro. C. C. 148. See 18 Ves. jun. 91. 
 93. 112. 
 
 (u) Kerrison r. Dorricn, 9 Bingh. 76 ; 2 Moo. & Scott, 114. 
 
 (*161;
 
 190 "^ PROTECTION FROM 
 
 l)is wife or children, after marriage, which rests wholly 
 on the moral duty of a husband or parent to provide for 
 his wife and issue, is voluntary, and void against pur- 
 chasers by force of the ?ict(v)(372). 
 
 But a purchase in the name of a wife or child is not 
 within the intention of the act, and consequently cannot 
 be defeated by a subsequent purchaser(a;)(373) : and on 
 the ground of policy, it seems that a settlement by a wid- 
 ow, previously to her second marriage, of her estate on 
 the children of the first marriage, will not be deemed 
 fraudulent(?/)(374). 
 
 And a settlement made on a wife or children, prior to 
 marriage, is a conveyance for valuable consideration, by 
 reason of the marriage itself(2), but a settlement after a 
 (*)marriage in Scotland, will not be deemed a settlement 
 upon valuable consideration, although, subsequently to it, 
 the marriage is re-celebrated in England(a)(375). 
 
 (D)Woodie's case, cited in Colvile v. Parker, Cro. Jac. 158 ; Good- 
 right tJ. Moses, 2 Blackst. 1019; Chapman v. Emery, Cowp. 278; 
 Evelyn v. Templar, 2 Bro. C. C. 148. See Parker v. Serjeant, Finch, 
 146. 
 
 {x) Sitpra, ch. 15, s. 2, div. 11. 
 
 {y) Newstead v. Searles, 1 Atk. 2G5. See Cowp. 280 ; Cotton v. 
 King, 2 P. Wms. 674. 
 
 (z) Colvile V. Parker, Cro. Jac. 158 ; Douglass v. Ward, 1 Cha. Ca. 
 99 : Brown v. Jones, 1 Atk. 188. 
 
 (a) Ex parte Hall, 1 Ves. & Beam. 112. 
 
 (372) See Rundle v. Murgatroyd's Ass. 4 Da^l. 304. ; and note, p. 
 305. Reade v. Livingston, 3 Johns. Ch. Rep- 488. Bayard v. Hoff- 
 man, 4 Johns. Ch. Rep. 450. But a settlement after marriage, made 
 in pursuance of a valid ante-nuptial agreement, is good. Reade v. Liv- 
 ingston, ut supra. 
 
 (373) See Livingston v. Livingston, 2 Johns. Ch. Rep. 539, et seq. 
 
 (374) See Pledger v. David's Admrs. 4 Des. 264. 
 
 (375) See Slerry V. Arden, 1 Johns. Ch. Rep. 261. Verplank v. 
 Sterry, on appeal, 14 Johns. Ch. Rep. 536. Bradish v. Gibbs, 3 Johns. 
 Ch. Rep. 550. Tunno v. Trezevant, 2 Des. 264, 269, The case of 
 Greenhoio v. Coutts, 4 Hen. & Munf. 486, is an exception to the gen- 
 eral rule. 
 
 - (*162)
 
 VOLUNTARY SETTLEMENTS. 
 
 191 
 
 The marriage consideration runs through the whole set- 
 tlement, as far as it relates to the husband, and wife, and 
 issue(6). Whether the marriage consideration will extend 
 to remainders to collateral relations, so as to support them 
 aginst a subsequent sale to a bona fide purchaser, is a 
 subject which has been frequently discussed(c). 
 
 In a case in Lane(^), it is stated to have been held, that 
 "if a man doth, in consideration that his son shall marry 
 the daughter of B., covenant to stand seised to the use of 
 the son, for life, and after to the use of other his sons, in 
 reversion or remainder ; these uses, thus limited in remain- 
 der, are fraudulent against a purchaser, though the first 
 be upon good consideration, viz. marriage." — In this case, 
 therefore, although the settler was under a moral obliga- 
 tion to provide for his sons, yet the remainders were not 
 held good. They were, it will be observed, to take effect 
 after a vested estate for life only. The case of Jenkins v. 
 Keymis(e) has sometimes been considered a case, where 
 the consideration of a marriage, and marriage portion, was 
 held to run through all the estates raised by the settle- 
 ment on the marriage, though the marriage was not 
 concerned in them(f). The point, however, was not 
 decided. It was merely the inclination of Hale's opinion. 
 It was not necessary to decide the point, for Sir Nicholas 
 was tenant for life, and Charles tenant in tail, with remain- 
 ders over ; the concurrence of both, therefore, was essen- 
 tial to give effect to the settlement, which brings it within 
 (*)the rule laid down in Roe v. Mitton(^,g'J. Besides, the 
 son paid to his father the portion which he received with 
 
 (6) Nairn v. Prowse, 6 Ves. jun. 752. 
 (c) See 6 Ves. jun. 750 ; 18 Ves. jun. 92. 
 
 (rf) Lane, 22 ; and see 2 Ro. Rep. 306 ; Jason v. Jervis, 1 Vern. 
 286. 
 
 (e) 1 Lev; 150. 237 ; 1 Cha. Ca. 105. 
 
 (/) See 9 East, 69. 
 
 [g) Vide infra, and 18 Ves. jun. 92. 
 
 (*163)
 
 192 
 
 OF PROTECTION FROM 
 
 his wire(/<). Lord Keeper Bridgman is also reported, by 
 Levinz, to have agreed with Hale, that the marriage 
 and portion of the first wife would extend to the issue 
 of the second ; but this opinion was extra-judicial, inas- 
 much as he relieved against the defective execution of the 
 power(i) ; and it is observable, that no such opinion is 
 stated in the report in Chancery(A;). The case of White 
 and Stringer(/) does appear to be an authority for such 
 limitations, after a vested estate-tail ; the remoteness of the 
 remainder was much relied upon in its favor. But even 
 in that case there were special circumstances ; the remain- 
 der was excepted in the purchase deed, and the purchaser 
 took a collateral security against it. It may be thought, 
 therefore, that he only purchased the reversion in fee 
 which was in the settler from whom he bought. The case 
 of Osgood V. Strode(m), like Jenkins and Keymis, de- 
 pends on the circumstance, that the father and son had 
 each an interest in the estate, and One could not make the 
 settlement without the other. Lord Macclesfield, how- 
 ever, considered the marriage portion not to go beyond 
 the limitations to the husband, and wife, and issue ; and 
 his subsequent observations are addressed to creditors, 
 and not to picrchasers. The case of Roe and Mitton(n) 
 depends on the same principle, and is so far an authority 
 against the validity of the remainders, that the marriage 
 consideration alone, was not considered sufficient to sup- 
 port limitations to the brothers. Lord Eldon has ob- 
 served(o), that in the case of a father, tenant for life, with 
 (*)remainder to his son in tail, they may agree, upon the 
 
 (h) See 1 Cha. Ca. 103. 
 
 (i) See 1 Lev. 237. 
 
 (fc) See 1 Cha. Ca. 106. 
 
 (/) 2 Lev. 105. See 2 P. Wms. 265. 
 
 (»») 2 P. Wms. 245. 
 
 (») 2 Wils. 356. 
 
 (o) 18 Ves. jun. 92. 
 
 (*164)
 
 VOLUNTARY SETTLEMENTS. 
 
 193 
 
 marriage, of the son, to settle, not only upon his issue, but 
 upon the brothers and uncles of that son : and the ques- 
 tion would be, whetlier they, though not within the consi- 
 deration of the marriage, are not within the contract be- 
 tween the father and son, both having a right to insist 
 upon a provident provision for uncles, brothers, sisters, 
 and other relations, and to say to each other, " I will not 
 agree unless you will so settle." The Court, his Lord- 
 ship added, has held such a claim not to be that of a 
 mere volunteer, but as falling within the range of the 
 consideration. The case of Goring v. Nash(^;9j, does not 
 apply to the case under consideration. It was a question 
 upon the specific execution of articles, and the rule of 
 equity cannot weaken the effect of the statute. 
 
 This hasty view of the authorities seem to show, that 
 the question was still open. A case lately occurred which 
 seemed to call for a clear decision upon the point(9). A 
 man, previously to his marriage, settled an estate to the 
 use of himself, for life ; remainder to trustees, in the 
 usual way, to preserve ; remainder to the first and other 
 sons of the marriage, successively in tail male ; remainder 
 to the first and other sons of the husband by any after- 
 taken wife, successively in tail male ; remainder to the 
 daughters of the intended marriage, as tenants in common 
 in tail, with cross remainders between them in tail, with 
 reversion to himself in fee. The marriage took elfect, 
 and the wife died in her husband's life-time, without 
 issue. The husband, not having been married again, 
 mortgaged the estate. The legal estate was outstanding, 
 and the question was, whether it was to be conveyed to 
 the mortgagee or not. A case was directed to the King's 
 Bench, in which the settlement was stated as a legal set- 
 tlement : (*)and it was stated, that the settler had sold 
 
 (p) 3 Aik. 186. 
 
 (q) Clayton r. Lord Wiltun, betoro Lord Eldon, Ch. 
 
 25 (*i6r>)
 
 194 
 
 OF PROTECTION FROM 
 
 for a full and valuable considoratioii. Tlie question for 
 the opinion of the Court was, whether the conveyance to 
 the purchaser was a good and valid conveyance for a val- 
 uable consideration, against the issue of the plaintiff's 
 second marriage. Lord Ellenborough, and the other 
 Judges of B. R.(r), certified their opinion, that the con- 
 veyance, by the plaintiff, to the purchaser, was not a good 
 and valid conveyance against the issue of the plaintiff's 
 second marriage. 
 
 In the above case, therefore, the limitations to the col- 
 laterals were supported : but it is observable, that in order 
 to support the limitations to the daughters of the first 
 marriage, it was necessary to support the remainders to 
 the sons of the second marriage. That was of itself a 
 sufficient ground to support the remainders. It has, on 
 the same principle, been considered, that an estate to a 
 stranger may be supported, under a covenant to stand 
 seised, if required to give effect to subsequent limitations 
 within the consideration. 
 
 The same circumstances precisely, however, appear to 
 have occurred in Roe v. Mitton, but this ground does 
 not appear to have been urged in its support. It was 
 decided upon the ground before mentioned : and Lord 
 C. J. Wilmot said, that the whole of the question turned 
 upon that. It is scarcely possible to suppose that the 
 question was not discussed at the bar. 
 
 In a recent case in Ireland(5), the precise point seems 
 to arise, although the facts are very numerous. In a set- 
 tlement, previous to marriage, after the limitations to the 
 issue of the marriage, which failed, remainders to the 
 collateral relations of the settler were added, under which 
 the grandson of an uncle of the settler claimed. The 
 
 (r) On the 31st May 1S13. 
 
 (s) Fairfield v. Birch. The special verdict is shortly staled in Ap- 
 pendix, No. 26,
 
 VOLUNTARY .SETTLEMENTS. ^rtt 
 
 (*)settler sold the estate to a purchaser, with full notice 
 of the settlement. Upon a trial in the Court of Common 
 Pleas, in Ireland, Lord Norbury, C. J. and Mr. Justice 
 Mayne, were in favor of the defendant ; and Mr. Justice 
 Fox, and Mr. Justice Fletcher, in favor of the plaintiff. 
 The latter, pro forma, aUowed his opinion to be entered 
 up for the defendant, and a writ of error was accordingly 
 brought; but the author has not learned how the point 
 was finally decided. 
 
 Since the above observations were written, the case 
 of Johnson v. Legard has oci^urred, in which the abstract 
 point was stated for the opinion of the Court of King's 
 Bench. In that case, the wife had only a rent-charge, 
 and therefore it might be supposed, that she stipulated 
 for the settlement of the estate in remainder, on her hus- 
 band's brothers, in order that the family dignity might be 
 maintained, and her annuity be regularly paid. The 
 Court of King's Bench certified their opinion, that none 
 of the limitations to the collaterals was a good and valid 
 limitation, as against the purchaser ; and the Vice- 
 Chancellor, without hearing any argument on this point, 
 confirmed the certificate(^). That decree, however, has 
 upon the circumstances been reversed by the Lord Chan- 
 cellor on appeal, but still the point in question was not 
 settled(?i). 
 
 If an agreement be entered into before the marriage for 
 a settlement of the estate(i;)(376), or the husband receive 
 
 (0 Ch. 20, July 1818, MS. ; 3 Wadd. 2S3 ; 6 Madd. 60 ; vide in- 
 fra. 
 
 («) 1 Turn. & Rims. 281. 
 
 (r) Griffin v. Stanhope, Cr- ^ar- ^^^ ? ^'' ^"^P^ ^o^'^'s case. 1 
 
 Ventr. 193 ; but qu. wh^-^ the agrecmot before the n.arnage .s by 
 
 parol See Ra»da'.' r- Morgan, 12 Ves. jun. 74 ; Battersbee v. Far- 
 
 . 1 o o,v,i 706; 1 Wils. 88; and see Treat, of Powers, 4th 
 nngton, 1 fcovap^i- '""' 
 
 edit. p. 49^' 
 
 376) See Reads v. Livingston, 3 Johns. Ch. Rep. 481, 488. But 
 
 (*166)
 
 -jOp OF PROTECTION FROM 
 
 an additional portion with his \\ife{iv)(311), the sutthniient, 
 (*)although made after meirriage, will be deemed valuable. 
 So, even an agreement to pay the husband a sum of 
 money as a portion, will su|)port a settlement made after 
 marriage, if the money is paid according to the agree- 
 ment (a;) (37 8). And where a woman has been married 
 indiscreetly, and a trustee of a sum of money which the 
 husband is entitled to in right of his wife, will not pay 
 it unless he make a settlement on his wife, and a settle- 
 ment is accordingly made, the settlement will equally be 
 supported as if a bill had been brought against the hus- 
 band to make a provision for his wife(^)(379). 
 
 So the concurrence of the wife in destroying an exist- 
 ing settlement on her for the benefit of the husband, is 
 a sufficient consideration for a new settlement, although 
 much more valuable than the former(2:). And the better 
 
 (iv) Colvile f. Parker, do- Jac. 158; Jones v. Marsh, For. 64; 
 Stileman v. Ashdown, 2 Atk. 477 ; Ramsden v. Hylton, 2 Ves. 304. 
 
 (x) Brown v. Jones, 1 Atk. 188. 
 
 (y) Ibid. 
 
 (z) Scott r. Bell, 2. Lev. 70; Bail r. Bumford, Free. Cha. 113; 1 
 E<1. Ca. Abr. 354, pi. 5. See Clerk v. Nettleship, 2 Lev. 148. 
 
 a settlertx^nt after marriage, in pursuance of a parol agreement entered 
 into before marriage, is not valid. S. C. p. 488. Nor, as it seems, 
 will svjch settlement be valid against creditv>rs, though the deed recite 
 the ante-huptial parol agreement. S. C. p. 491.; and see Scott v. 
 Gibbon, 6 Munf. 86. 
 
 (377) See Games v. Smith, 2 Des. 299. 
 
 (378) And H parol promise by a father to his daughter's husband be- 
 fore marriage, to give him a tract of knd, if he would marry his daugh- 
 ter, is a sufficient consideration to sustain a written agreement made 
 after the marriage, .rh-genhrlghi v. Campbell, 3 Hen. & Munf. 144. 
 See Rundle v. Murgatroyd^s Ass. 4 L>a,,. 305, and the note. See also, 
 St&rry v. Arden, 1 Johns. Ch. Rep. 2b 1. 
 
 (379) See Howard v. Moffat, 2 Johns. Ch. Rep. 206. The courts 
 of Pennsijhania have no authority to direct a proviaiun * f • th T 
 when the husband applies for her personal property. Yoke,, » . / 
 1 Binn. 358, 365. ' *' "* ' 
 
 in67) 
 
 .*ti
 
 VOLUNTARY SETTLEMENTS'. jgy 
 
 opinion, as well upon principle as in point of authority, 
 seems to be, that the wife joining in barring her dower, 
 for the benefit of her husband, will be a sufficient consi- 
 deration for a settlement on her(«). It has been decided, 
 that the wife parting with her jointure is a sufficient con- 
 sideration. Now, if that which comes in lieu of dower is 
 a valuable consideration, surely the dower itself must be 
 equally valuable. Besides, where a woman is entitled to 
 dower, the estate cannot be sold to advantage without 
 her concurrence ; she is a necessary party to any arrange- 
 ment respecting the estate, and that alone seems a suffi- 
 cient ground to support a settlement on her. 
 
 But if an unreasonable settlement be made upon a wife 
 in consideration of her releasing her dower, it seems that 
 equity in favor of subsequent purchasers will restrain her 
 (*)to her dower(6). These are points, however, which 
 will not frequently arise, now that dower is placed under 
 the husband's control(c). 
 
 If, upon a separation the husband settle an estate upon 
 his wife, and a friend of her's covenant to indemnify the 
 husband against any debts which she may contract, this 
 will be a sufficient consideration to uphold a settlement 
 as valuable, and not within the statute(c?). Indeed, the 
 Courts will anxiously endeavor to support a fair settle- 
 ment, and nearly any consideration will be sufficient for 
 that purpose. Therefore, if a person, whose concurrence 
 the parties think essential, join in a settlement, his con- 
 
 (o) Lavender I'. Blackstone, 2 Lev. 146. See and consider Evelyn 
 V. Templar, 2 Bro. C. C. 148; 18 Yes. juu. 91 ; Pulvertoft v. Pulver- 
 toft, 18 Ves. 84. 
 
 (6) Dolin V. Coltman, 1 Vern. 294. 
 
 (c) 3 & 4 Will. 4, c. 105. 
 
 (d) Stephens v. Olive, 2 Bro. C. C. 90 ; King v. Brewer, ibid. 93, 
 n. See however Lord Eldon's argument in Lord St. John v. Lady St. 
 
 John, 11 Ves. jun. 526; Worrall r. Jacob, 3 Mer. 266. 
 
 (*168)
 
 193 
 
 OF PitOTECTION FROM 
 
 currence will be deemed a valuable consideration, althoujrh 
 he did not substantially jrart with any thing(e). 
 
 It may be observed, that the statute of Elizabeth does 
 not affect settlements of personal estate(y). Equity will 
 not assist a mere stranger in making good a voluntary 
 settlement upon him, unless the property was so trans- 
 ferred as to create the relation of trustee and cestui que 
 trust. In a late case, however, a voluntary assio;nment 
 of an equitable reversionary interest to trustees, for a 
 stranger, was established, although as the settlement was 
 merely equitable, the person claiming under it of course 
 had not any right to the property at law(o-). This deci- 
 sion (*)is of great importance. The principle upon which 
 it was decided should be applied with great caution to 
 other cases. 
 
 III. We have seen what will be deemed a fraudulent 
 or voluntary conveyance ,* but although a deed be merely 
 voluntary or fraudulent in its creation, and voidable by a 
 purchaser (i. e. would become void by a person purchasing 
 the estate), yet it may become good by matter ex post 
 facto : as if a man make a feoffment by covin, or without 
 any valuable consideration, and the feoffee make a feoff- 
 ment for valuable consideration, and then the first feoffor 
 enter and make a feoff'ment for valuable consideration, 
 the feoffee of the first feoffee shall hold the lands, and not 
 the feoflfee of the first feoffor : for although the estate of 
 
 (c) Roe V. Mitton, 2 Wils. 356. See Myddleton v. Lord Kenyon, 
 2 Ves. jun. 391 ; Hill v. Bishop of Exeter, 2 Taunt. 69 ; and 18 Ves. 
 jnn. 92 ; Gully v. Bishop of Exeter, 5 Bingh. 171 ; 2 Moo. & P. 105, 
 266, 276. 
 
 if) Per Sir W. Grant, in the case of Sloane v. Cadogan, infra; 
 Jones V. Croucher, 1 Sim. & Stu. 315. 
 
 (g) Sloane v. Cadogan, Rolls, Dec. 1808, MS. Appendix, No. 26. 
 This case involved an important question upon the execution of a pow- 
 er. See ex parte Pye, 18 Ves. 140 ; Fenner v. Taylor, 2 Russ. & 
 
 Myl. 195. 
 (*169)
 
 VOLUNTARY SETTLEMENTS. 
 
 199 
 
 the first feoffee was in its creation covinous, or voluntary, 
 and therefore voidable, yet when he enfeoffed a person 
 for valuable consideration, such person shall be preferred 
 before the last(/i)(381). 
 
 Lord Eldon hasj applied this rule to persons having 
 only equitable rights. For where a person who had an 
 absolute power of appointment over a sum of money to 
 be raised under a trust-term, divocted part of it to be 
 raised in favor of a volunteer, who afterwards mortgaged 
 such part, although the money appointed was deemed 
 assets as between the creditors of the appointor and the 
 appointee, yet the claim of the purchaser was preferred to 
 that of the creditors : he having a preferable equity(z). 
 
 If a voluntary grantee gain credit by the conveyance to 
 him, and a person is induced to inarry him on account of 
 (*)such provision, the deed, though void in its creation as 
 to purchasers, will, on the marriage being solemnized, no 
 longer remain voluntary, as it was in its creation, but will be 
 considered as made upon valuable consideration(y)(382). 
 
 (h) Prodgers v. Langham, 1 Sid. 133; Andrew Newport's case, 
 Skin. 423 ; Wilson v. Wormal, Godb. 161, pi. 226 ; Doe v. Martyr, 1 
 New. Rep. 332 ; and see Parr v. Eliason, 1 East, 92. See also Lady 
 Burg's case, Mo. 602 ; and 3 Atk. 377. 
 
 (t) George r. Milbank, 9 Yes. jnn. 190. See 1 Mer. 638. 
 
 (jj Prodgers v. Langham, 1 Sid. 133 ; Kirk v. Clark, Prec. Cha. 
 276 ; S. C. by the name of Heisier v. Clark, 2 Eq. Ca. Abr. 46, pi. 
 13; Doe r. Routledge, Cowp. 705; East India Company r. Clavell, 
 Gilb. Eq Rep. 37; Prec. Cha. 377 ; and see 9Ves. jun. 193 ; O'Gor- 
 man v. Comyn, 2 Scho. & Lef. 147 ; Crofton r. Ornisby, ibid. 683. 
 
 (381) See Jackson v. Henry, 10 Johns. Rep. 186, 197. Fletcher v. 
 Feck, 6 Crunch, 133. Bnmpus v. F'alner, 1 Johns. Ch. Rep. 213, 219. 
 Aslor V Wells, 4 Wheat. 466, 487, 488. Roberts v. Anderson, 3 Johns. 
 Ch. Rep. 377. et se<]. S. C. on appeal, 18 Johns. Rep. 515. Frost v. 
 Beckman, 1 Johns. Ch. Rep. 288, 300. 
 
 (382) See Sterry v. Jirden, 1 Johns. Ch. Rep. 261. And it makes 
 no difference whether any particular marriage was in contemplation, at 
 the time of the voluntary settlement or not. Id. See also, .ii-genbriglii 
 V. Campbell, 3 Hen. & Munf. 144. 
 
 (*170)
 
 200 ^^ PROTECTION FROM 
 
 And it is to be inferred from a late decision(A;), that 
 though it does not appear, that the friends of the wife 
 did speculate upon the provision, and take it into consid- 
 eration, jet it must be presumed that they did act upon 
 it ; and it cannot afterwards be disturbed. In the case 
 alluded to, the question was, whether the husband, who 
 was tenant for life, with remainder to his sons in strict 
 settlement, had any equity to be relieved against the set- 
 tlement, as made under an undue influence of parental 
 authority ; and it was determined, that the husband could 
 not disturb it by reason of his subsequent marriage, al- 
 though it did not appear that the friends of his wife took 
 the settlement into consideration. The same principle 
 applies to the case under consideration. 
 
 Notwithstanding the decisions as to voluntary settle- 
 ments, it is seldom that a purchaser can be advised to ac- 
 cept a title where there is a prior settlement ; for although 
 apparently voluntary, yet if a valuable consideration were 
 paid or given, parol evidence would be admissible of the 
 transaction, in order to support the deed, and rebut the 
 supposed fraud. This seems to be admitted by all the 
 cases(/)(383). And in Ferrars v. Cherry(m), it was 
 even holden, that although a settlement was apparently 
 voluntary^ and made after marriage, yet if the purchaser 
 (*)had notice of the settlement, and it prove to have been 
 made in pursuance of articles before marriage, he would 
 be bound by it, and could not protect himself by a prior 
 legal estate, as he ought to have inquired of the wife's 
 relations, who were parties to the deed, whether it was 
 voluntary, or made pursuant to an agreement before mar- 
 riage. Lord Hardwicke, indeed, has said, that he inclined 
 
 (fc) Brown v. Carter, 5 Ves. jun. 862. 
 
 (I) See particularly Chapman v. Emery, Cowp. 278. 
 
 (m) 2 Vern. 384. 
 
 (383) See Sterry v. Arden, 1 Johns. Ch. Rep. 271. 
 (*171)
 
 VOLUNTARY SETTLEMENTS. 
 
 201 
 
 to ihink it *vas in this case left uncertain on tlie face of 
 the settlement, whether it was made before marriage or 
 not ; and he denied the authority of the case(/i). 
 
 This opinion of Lord Hardwicke's cannot be safely 
 relied on. Indeed, if notice of a settlement apparently 
 voluntary, but which turns out to be made on valuable 
 consideration; slwuld not be deemed notice to a purchaser 
 of the consideration, yet, unless he has a prior legal 
 estate, he cannot protect himself against the settlement. 
 Both parties being purchasers, equity must stand neuter, 
 and the person claiming under the conveyance must re- 
 cover at law. 
 
 There are but few cases on the effect of an agreement 
 by the settler to sell an estate after a voluntary settlement 
 of it. In Leach v. Dean(o), the plaintiff's suit was to be 
 relieved upon articles of agreement for the purchase of 
 lands from the defendant, who before the articles had by 
 deed conveyed the estate to his son, and the Court made 
 the decree as prayed ; " but as to the voluntary convey- 
 ance, the same is not hereby impeached, as between the 
 father and son for any advancement, or any other thing 
 thereby settled on the son, other than making good the 
 articles of agreement ; but the trustees to be paid their 
 debts and engagements out of the purchase-money." It 
 does not appear that the purchaser had notice of the set- 
 tlement (*)at the time he contracted. It was altogether 
 a voluntary settlement. So. in Douglasse v. Ward(|?), the 
 settlement was after the settler's first marriage on himself 
 for life, remainder to his first and other sons in tail, and 
 was therefore voluntary throughout. Previously to his 
 second marriage, in consideration of a portion, he agreed 
 to settle a jointure on his second wife, out of the settled 
 
 (n) Senhouse v. Earle, Ambi. 285. See 2 Yes. 60, n. 
 
 (o) 1 Cha. Rep. 78. 
 
 {p) 1 Cha. Ca. 99. 
 
 VOL. II. 26 (*172)
 
 ^iqo of protection from 
 
 estate, and she was relieved against her ow-n issue, who 
 claimed under the settlement. It does not appear that 
 she had notice of the settlement, and at the time of her 
 articles there was no person m esse entitled under the 
 settlement, and the settler himself could have destroyed 
 the contingent remainders. Parry v. Carvvarden(</), was 
 also a suit by a purchaser, who had no notice of the settle- 
 ment, and there the settler herself filed a hill to set aside 
 the settlement, but died before the cause was at issue. 
 
 The cases, therefore, do not carry the doctrine very far. 
 They were all cases in which i\\e purchaser «as plaintiff, 
 and in none of them had he notice of the settlement. It 
 is now settled, after a great struggle, that a purchaser 
 under a conveyance may avoid a voluntary settlement, 
 although he had notice of it, but that decision ought not 
 to induce equity to consider Leach v. Dean, and that line 
 of cases, as authorities, for decreeing a specific perform- 
 ance where the purchaser has notice. If a construction 
 of a statute be made, which is too late to overrule, but 
 which, it is admitted, ought never to have been esta- 
 blished, the principle of the rule should not be pushed to 
 its greatest extent, but the rule should rather be confined 
 strictly to the very circumstances under which it was 
 established. 
 
 In Bennet v. Musgrove(r), Lord Hardwicke said, the 
 distinction in equity was, that where a subsequent pur- 
 chaser (*)for a valuable consideration would recover the 
 estate, and set aside or get the better of a precedent vo- 
 luntary conveyance, if that conveyance was fairly made, 
 without actual fraud, the Court will say, Take your re- 
 medy at law ; but wherever the conveyance is attended 
 with actual fraud, though they might go to law by eject- 
 ment, and recover the possession, they may come into this 
 
 (9) Dick. 544. 
 (r) 2 Ves. 51. 
 (*173)
 
 VOLUNTARY SETTLEMENTS. 
 
 203 
 
 Court to set aside that conveyance ; which is a distinction 
 between actual and presumed fraud, from its being merely 
 a conveyance ; and he adhered to the same rule in Oxley 
 V. Lee(5). 
 
 From this it might be inferred, that equity would not 
 compel a specific performance in favor of a purchaser 
 ! who bought ivith notice of a prior voluntary conveyance 
 i made without fraud. But in a recent case, where, after 
 a voluntary settlement, the settler entered into a contract 
 to sell the settled estate to a person with full notice of 
 the settlement. Sir Wm. Grant, Master of the Rolls, on 
 mature consideration, decreed a specific performance 
 against the parties claiming under the voluntary settle- 
 ment(/)(384) ; and Lord Eldon appears to have approved 
 of the decision(i<), but he was not called upon to consid- 
 er the point. It is certainly a very strong decision. The 
 construction that a bona fide voluntary settlement was 
 void under, the statute against a subsequent purchaser, 
 who bought with notice, was not established without great 
 opposition, and has always been considered a harsh inter- 
 pretation. But the statute only operates where the pur- 
 chaser acquires the estate under a conveyance. Equity 
 generally follows the law ; and therefore a sale of an 
 equitable estate must, like a sale of a legal estate, operate 
 to defeat a prior voluntary settlement ; but that rule does 
 (*)not seem to apply to this case, where the contracting 
 party has all his legal right, and the question is not in 
 what channel an equitable interest actually in esse shall 
 go, but whether the purchaser has any equitable interest, 
 or, in other words, whether the Court will lend him its 
 extraordinary aid, in order to carry the contract into a 
 
 (s) 1 Atk. 625. 
 
 (/) Buckle V, Mitchell, 18 Ves. jun. 101. 
 
 (k) Metcalfe v. Pulvertoft, 1 Ves. & Beam. 180. 
 
 (384) See Sternj v. Arden, I .fohns. Ch. Re|>. 271. 
 
 (M74)
 
 204 
 
 OF PROTECTION FROM 
 
 specific execution, instead of leaving him to his remedy 
 at law. It were difficult to maintain, that the statute 
 requires, by implication, equity to interpose, or that the 
 interposition of the Court is called for by analogy to the 
 legal rule ; and unless that could be established, the plain- 
 tiff in such a suit might, with propriety, be told that he 
 did not come there with clean hands. He knew that 
 the seller had already settled the estate on another, and 
 that he could not break through the settlement unless 
 by the circuitous route of a sale. This was a purpose 
 to which the plaintiff ought not to have lent himself, and 
 at least he could not complain that he was left to his 
 legal right, and that equity, who would not suffer the 
 settler to break through the settlement for his own be- 
 nefit, would not assist even a purchaser in defeating it 
 where he bought with notice. The act relieves a man 
 who has actually bought and paid for the estate, and 
 obtained a conveyance of it; but it does not -provide for 
 the case, where not having completed his contract, he 
 would not be damnified by the settlement ; but would 
 have his legal remedy against the vendor for breach of 
 contract. Such a case did not call for any legislative re- 
 medy, and equity, it may be thought, ought to stand neuter. 
 
 In Buckle v. Mitchell, however, the settlement was 
 subject to all the specialty and simple contract debts then 
 due, 01' to be due, from the settler. The bill was filed after 
 the seller's death, but that circumstance does not appear 
 to have received much consideration. 
 
 (*)In the case of Burke v. Dawson(a;J, Sir Wm. Grant, 
 I am told, seemed to be of opinion, that although a pu?- 
 chaser, subsequently to a voluntary conveyance, might 
 compel a specific performance, yet the vendor could not 
 enforce the execution of the contract against an unwilling 
 contractor. Indeed this seems to flow from the rule, that 
 
 [x) Rolls, March 1805, MS. 
 
 (*175)
 
 VOLUNTARY SETTLEMENTS. 205 
 
 the voluntary conveyance is binding on the settler him- 
 self; and the statute of Elizabeth was passed to protect 
 purchasers, and not to enable persons to break through 
 bona fide settlements, although made voluntarily, and 
 without consideration. 
 
 In the later case of Smith and Garland(y) the very 
 point arose. The bill was filed by the seller, who made 
 the voluntary settlement. The defendant, the purchaser, 
 bought without notice. He raised the objection to the 
 title on account of the settlement by his answer, but sub- 
 mitted to perform the contract if a good title could be 
 made. Sir Wm. Grant, Master of the Rolls, in a judgment 
 which will long be remembered by those who heard it, 
 expressly distinguished the case from his former decision 
 in Buckle and Mitchell, and decided that the settler 
 cannot maintain a bill for a specific performance. For 
 the settlement was binding on him, and he had no right 
 to disturb it. 
 
 In the more recent case of Johnson v. Legard, the settle- 
 ment was in consideration of a marriage, and was not 
 voluntary throughout. By an agreement in writing, in 
 October 1807, Sir John Legard, the settler, agreed to sell 
 and convey the estate to Mr. Watt, before the 6th of April 
 1808. And Mr. Watt agreed to secure, by mortgage of 
 the estate and his bond, the purchase-money with interest ; 
 which principal sum was to remain upon the security at 
 interest during the life of Sir John Legard, and for twelve 
 (*)calendar months afterwards. And it was agreed, that 
 if W att, his heirs or assigns, should be evicted from or de- 
 prived of the possession of the estate by any issue male of 
 Sir John Legard, or by any other person claiming or deriv- 
 ing title under him, then the sums laid out in improve- 
 ments or necessary alterations were to be repaid with in- 
 terest, and also the purchase-money ; and the security for 
 
 (y) Smith l- Garland, 2 Mer. 123. 
 
 (*176)
 
 206 
 
 OF PROTECTION FROM 
 
 any part unpaid was to be void. Sir John Legard died. 
 His creditors filed a bill against the remainder-men under 
 the settlement, and against Watt, praying a specific per- 
 formance. Watt by his answer objected to the title on 
 account of the settlement, but submitted to perform the 
 agreement on having a good title. By the decree it was 
 ordered, that a case should be made for the opinion of the 
 Judges of the King's Bench, and that such case should 
 state, that a conveyance was actually made of the estate in 
 question for a valuable consideration, by Sir John Legard, 
 in his lifetime ; and that the question should be, whether 
 the limitations to the col^aterals were good against the pur- 
 chaser ; and further directions were reserved. The result 
 of the case before the King's Bench has already been stated. 
 The cause came on before Sir John Leach, Vice-Chancel- 
 lor, on further directions(2:). The counsel for the remain- 
 der-men relied upon the case of Smith v. Garland, which 
 had been decided since the case was directed to the King's 
 Bench. The Vice-Chancellor held that that case was not 
 an authority to be followed. It was however, argued, L 
 That the statute of Elizabeth only applied to purchasers 
 under actual conveyances, and that equity ought not to in- 
 terfere. It never could be contended, that at law a pur- 
 chaser having a mere right of action under a contract, and 
 not having paid his purchase-money, could avoid a volunta- 
 ry settleme4it, and it would be difficult to draw any line. 
 (*)2. That the agreement was a mere irick to set aside the 
 settlement, without placing the purchaser in any danger. 
 He never stood in the situation of a purchaser who could 
 be deceived ; and the second point in White v. Stringer 
 was strongly relied upon(a). 3. That the creditors had 
 not any right to file a bill. The settlement was binding 
 
 (z) 17 July 1818, MS. ; 3 Madd. 283, a short note ; Sutton v. 
 Chetwynd, 3 Mer. 249. 
 (a) 2 Lev. 105. 
 C*177}
 
 VOLUNTARY SETTLEMENTS. 207 
 
 on the settler, and unless he placed a purchaser in a 
 situation to avoid the settlement, the estate of the remain- 
 der-men could not be impeached after his death : there 
 was no equity against them. 4. That Smith and Gar- 
 land was a great authority, and a stronger case than that 
 before the Court. There, as well as in this case, the 
 purchaser submitted to perform the contract if a good 
 title could be made. The Vice-Chancellor expressed an 
 opinion that the creditors might file a bill although the 
 settler could not, as there was a moral obligation on him 
 to provide for his debts, and that the Court could make 
 a decree between the co-defendants. For the remainder- 
 men it was insisted, that the settler having solemnly on 
 his marriage settled the estate, in default of his own issue, 
 on the person who would succeed to his title, had already 
 performed a moral obligation, and exhausted his power 
 over the estate. The settlement was binding on him, 
 and his creditors could not, claiming under him, have any 
 rights to which he was not entitled. They did not at- 
 tempt to impeach the settlement under the 13 Eliz. It 
 was also submitted, that it would be an act of injustice to 
 extend the rule as to decreeing relief between co-defend- 
 ants to this case, because it at once took the estate from the 
 remainder-men without any consideration. It did not fol- 
 low that Watt the purchaser would file a bill ; and if he 
 did, the co-defendants might shape their defence in away 
 which they had not by the present bill been called upon 
 to do. The Vice-Chancellor held, that the statute of 27 
 (*)Elizabeth did not confine the relief to a purchaser by 
 conveyance, but the act supposed there may be a purchaser 
 by contract. The purchaser's right follows as against the 
 representatives of the vendor. His Honor thought that 
 the creditors would have a right to insist upon a specific 
 performance, though the vendor had not ; but that point 
 did not arise, for Mr. Watt says he is ready to take the 
 
 (*178)
 
 208 OF PROTECTION FROM 
 
 estate if a good title can be made. Besides, the former 
 decree concluded every question now raised. The de- 
 fendants, the remainder-men, have appealed to the Lord 
 Chancellor against this decision. Sul)sequentlj to tlie 
 publication of the above observation, the appeal was heard 
 and the decree below reversed(6). 
 
 In Cormick v. Trapaud(6-), the settler was tenant in 
 tail, with remainders to his brothers in tail, he agreed to 
 settle the estate previously to his marriage, but did not 
 extend the limitations to his brothers ; he after marriage 
 settled the estate with remainders to his brothers for life, 
 and their issue in strict settlement, and afterwards suffer- 
 ed a recovery. It was held that the limitations to the 
 brothers were voluntary limitations, although the settler 
 was only tenant in tail. 
 
 If a trust be created by a voluntary settlement, the par- 
 ties entitled under it may file a bill to have the trust car- 
 ried into execution ; but an injunction will not be granted 
 restraining the settler from defeating the settlement by 
 a sale(c^) ; nor will the pendency of the suit prevent the 
 settler from 'selling the property, or the purchaser from 
 filing a bill in order to enforce his rights under the 
 contract(e). 
 
 (*)IV. It remains to consider the construction which 
 the part of the statute relating to conveyances with pow- 
 er of revocation has received. And first it is to be ob- 
 served, that the statute does not extend to particular pow- 
 ers, as a power to charge 2,000/. on an estate of consid- 
 erable value, for such a power is not a power within the 
 
 (6) It is now lepoiled, 1 Turn. & Russ. 281. 
 
 (c) 6 Dow, 60. 
 
 ((Z) Pulvertoft v. Pulvertoft, IS Ves. 84. 
 
 (e) Metcalf v. Pulvertoft, 1 Ves. & Bea. 180. The widow pleaded 
 lis pendens, and the plea was over-ruled by the Vice- Chancellor on the 
 10th August 1813. See 2 Ves. & Bea. 200. 
 
 (*179) 
 
 »
 
 VOLUNTARY SETrLEMEXTS. OnO 
 
 u'orIs of the staliUo (bein^ for a particular sum) to re- 
 voke, deteriiiine, or alter the estateC/^. 
 
 But it is of course quite clear, that a settlement by 
 which a power of revocation, or a power tantamount to it, 
 is reserved to the grantor, is void against a subsequent 
 purchaser(s^)(385), and no artifice of ilie parties can pro- 
 ' tect the settlement. Thcrelbre, although the power is 
 > conditional, that the settler shall only revoke on payment 
 of a trifling sum to a third person(A), or with the consent 
 of any third person who is merely appointed by the 
 grantor(i), in these and the like cases the condition will 
 be deemed colorable, and the settlement will be void 
 against a subsequent purcliaser. 
 
 But if a settlement is made with a power to the settler 
 to revoke, so as that the money be paid to trustees to be 
 invested in the purchase of other estates(/c), or to revoke 
 with the consent of a stranger bona fide appointed by the 
 parties, and his consent is made requisite, not as a mere 
 color, but for the benefit of all parties, the settlement 
 will be valid, and cannot be impeached by a subsequent 
 purchaser(/). This was determined in the case of Buller 
 V. Waterhouse(wi), which, however, Mr. Powell thought, 
 did not settle the point, because all the claimants under 
 {*)tlie conveyance were purchasers for a valuable consider- 
 ation(n). But it seems quite immaterial whether the set- 
 
 {/) Jenkins v. Keymis, 1 Lev. 150. 
 
 (gj Cross tj. Fauateaditoh, Cro. J.ic. 130; Tarback v. Marbury, 2 
 Vein. 610. See Lane, 22. 
 
 {k) Griffin c. Stanhope, Cro. Jac loi. 
 
 (i) See 3 Rep. 82, b. ; Luvendcr v. Blacltston, 3 Keh. 526. 
 
 {k) Doe V. Martin, 4 Term Rep. 39. 
 
 (l) See Leigh v. Winter, 1 Jo. 411 ; and see Lane, 22. 
 
 (»h) 2 Jo. 94; 3 Keb. 751 ; and .see ace. Hungerford r. Earle, 2 
 Freem. 120 ; Lane, 22. 
 
 (n) Pow. on Powers, 330. 
 
 (386) See Riggs v. Murray, 2 Johns. Ch. Hep. 579, 580. 
 VOL. II. 27 (*180)
 
 210 
 
 OF PROTECTION FROM SETTLEMENTS. 
 
 tlement itself is merely voluntary, or upon valuable consi- 
 deration(o). The statute says, that all conveyances which 
 the grantor has power to revoke shall be void against 
 subsequent purchasers ; and therefore, if parties giving a 
 valuable consideration for a settlement choose to permit 
 the grantor to reserve a power to revoke the settlement, 
 they must suffer for their folly. The grantor, by virtue of 
 the power, may revoke the settlement ; and if he sell the 
 estate without revoking it, the statute makes it void. In 
 fact, if we hold, that settlements made upon valuable con- 
 sideration are not within this provision, we must at the 
 same time admit, that the Legislature did not intend to 
 affect voluntary settlements,, unless they were actually 
 fraudulent ; for voluntary settlements are void against 
 purchasers under the second section of the act, which has 
 already been discussed. This clause therefore would, 
 under the construction put upon it by Mr. Powell, have 
 scarcely any operation(386). 
 
 (o) See acct. Rob. on Vol. Conv. 637. 
 
 (386) The Courts, in carrying into effect the statute against fraudu- 
 lent conveyances and giving to it a proper interpretation, have not felt 
 warranted in proceeding upon any broader ground, than this : that they 
 are voidable only as to creditors or pvuchasers who may think proper 
 to impeach them and are not utterly void. Thus, as against a fr<MKlu- 
 lent grantor, the conveyance is effectual to pass the title, and he and his 
 representatives are nol at liberty to set up a claim in opposition to it : 
 Osborn v. Moss, 7 J. R. 161 ; and for all the purposes of a valid title 
 in a bona fide purchaser under a fraudulent grantee, such grantee is, in 
 contemplation of law, vested with a legal estate. The title vest.<5, in the 
 grantee, subject to be devested whenever the creditors or persons ag- 
 grieved think proper to call in question the validity of the transaction. 
 When the conveyance is proved to be fraudulent, the judgment or de- 
 cree of the court declares the deed of conveyance void in tofo, as re- 
 spects those who have impeached it ; but not as to others This prin- 
 ciple was settled in Anderson v. Roberts, 18 J. R. 515. and Mackie and 
 Cairns, 5 Cowen, 547. One reason assigned in the latter case, why 
 the judgment, which had been confessed by the assignor to the assignees
 
 WITH POWER OF REVOCATION. 
 
 2\\ 
 
 If a man having a power at a future day to revoke a 
 settlement made by him, sell the estate before the day 
 
 subsequent to the assignment, was held to be ineffectual for any pur- 
 pose was, that the assignment, ahhotigh fraudulent as to creditors, was 
 valid as between the parties, and, therefore, no lien could attach upon 
 the property, assigned by means of the judgment. So, in Murray v. 
 Riggs, 15 J. R. 571, where a deed fraudulent as to creditors, might be 
 made good by subsequent acts between the grantor and the grantees 
 before steps were taken to impeach it. These principles were stated 
 by the Vice Chancellor in the late case of Henriques v. Hone, 2 Edw. 
 Ch. R. 120, where Moffat assigned his property to H. & S. in trust 
 for his creditors. Afterwards upon the application of judgment credi- 
 tors, the assignment was decreed to be void on the ground of fraud. 
 The complainant in this suit was then appointed receiver ; and the as- 
 signees were ordered to deliver to him the trust property. Previously, 
 however, to this decree a part of the property had been delivered to 
 the defendant, who was an auctioneer ; and he had sold the same and 
 rendered an account thereof not knowing the true state of the property. 
 When required to pay the receiver the proceeds of the property, the 
 defendant refused on the ground that Moffat the debtor owed him a 
 larger amount. But the V. Ch. held, that in no vievv of the cause had 
 the defendant any right to retain or make the set off; and accordingly 
 made a decree for the payment of the same, with interest and costs. 
 " The effect of the decree was only to divest the assignees of their 
 right and control over the property by virtue of the assignment, so as to 
 have the property applied to lawful purposes, viz. to such of the credi- 
 tors, who pursued their legal remedies and thereby acquired preferen- 
 ces over others. And this court then takes the property under its own 
 charge through its officer, a receiver, and appropriates it accordingly. 
 
 " In practice, continued the V. Ch., it is usual to direct a release of 
 the right of a party under a deed which is set aside as constructively 
 fraudulent. Doy i". Dimhain, 2 J. C. R. 194.' But it would not be 
 necessary to direct a release or reconveyance where a deed is declared 
 an absolute nullity from fraud or imposition in the manner of obtaining 
 it, except ex ahimdanti cuulela. Livingston v. ilubbs, 2 J. C. R. 5-12, 
 S. P. 2 Ves. jr. 294. The practice upon a decree of requiring a re- 
 lease or conveyance by a person holding under u voidable deed upon 
 setting it aside, shows that the legal title, at least, remains in him, and 
 does not return and revest in the original grantor. Hence, the propriety 
 of requiring H. & S. (the assignees) to execute to the receiver a re- 
 lease or transfer of the property and its proceeds. It follows, that the 
 receiver must be deemed dc jure as well as dc facto the assignee of H.
 
 212 ^^ PliOTECTION FKO\f 8i: riLEMENTS, 
 
 arrive, the settlement will be void against the purchaser 
 at the time when the vendor, according to the terms of 
 the power, might have revokc^d the settiementf/^J. 
 
 And a settlement made with power of revocation, will 
 be void against a subsequent purchaser, although the 
 grantor release or extinguish the power previously to the 
 sale ; otherwise the vendor might secretly release or de- 
 stroy the power, and then show to the purchaser the con- 
 veyance containing the power of revocation, and so 
 induce him to buy the land(^). In the case, however, in 
 which this was decided, the settlement appears to have 
 (*)been voluntary, and the purchaser had not notice of 
 the power being destroyed. But if a settlement should 
 be made for valuable consideration, with a power of revo- 
 cation, and the vendor should afterwards release the pow- 
 er for a valuable consideration, it is conceived that a pur- 
 chaser, subsequently to the destruction of the power, 
 could not prevail over the settlement. 
 
 The statute, as we have seen, operates conditionally, that 
 is, where the first conveyance is not revoked according to 
 the power. The act has no effect until the donee of the 
 power sell the estate without revoking the first conveyance 
 by virtue of his power. Suppose, then, a vendor professes 
 to execute his power, but it is informally exercised, will 
 the defect be cured by the statute ? The Legislature in- 
 tended to protect purchasers against fraudulent settle- 
 ments, with powers of revocation, for it is essential, to 
 bring a case within the act, that the estate should be sold, 
 and the first convevance not be revoked according to the 
 
 (;)) 3To. 618 ; 3 Rep. 62 b ; Bridg. 23. 
 (?) Bullock r. Thoi-ne, Mo. 615. 
 
 & S. and deriving in and through them title, and not immediately from 
 ^Moffat. Were it otherwise, as between Moflat and H. & S. the as- 
 signment wa? gond : and Hone could not retain the property to pay 
 hi6 own debt.
 
 WITH POWER OF REVOCATION. 
 
 213 
 
 power reserved to the grantor by such secret conveyance. 
 The non-execution of the power is the fraud which the 
 statute intended to avoid. The conveyances against 
 which the act was intended to operate were presumed to 
 be secret. It was not meant to relieve any man who 
 was aware of the existence of the power, and might have 
 required it to be exercised. The statute was not intend- 
 ed to operate as a mode of conveyance. But without in- 
 sisting that where a purchaser is aware of the settlement, 
 he must require the power to be executed, it may be 
 urged, that where a purchaser does rest his title on the 
 execution of the power, he rejects the aid of the Leg- 
 islature, and takes his title under and not in opposition to 
 the settlement ; and can, therefore, only stand in the 
 same situation as any other purchaser who has unfortu- 
 nately taken an estate under a power defectively executed. 
 The purchaser can scarcely be held lo have a good legal 
 (*)title, unless the vendor not only attempted to execute 
 the power, but actually conveyed the estate to him. 
 
 SECTION ir. 
 Of Protection from Charitable Uses. 
 
 In the statute of charitable uses(/) is a proviso, that no 
 person who shall purchase or obtain, upon valuable con- 
 sideration of money or land, any estate or interest of 
 or in any lands, 8ic. that shall be given to any of the 
 charitable uses mentioned in the statute, without fraud 
 or covin (having no notice of the same charitable uses), 
 
 r) 43 Eliz. c. 4.
 
 214 ^*' PROTECTION FROM CHARITABLE USES. 
 
 shall be impeached by any decrees of the commissioners 
 therein mentioned. 
 
 A purchaser who hath bought for an inadequate con- 
 sideration is not within this proviso ; and the adequacy 
 of the consideration is measured according to the rule of 
 the civil law ; but if one purchase lands under half the 
 value, and sell to another upon good consideration bona 
 Jide, the fraud is purged(5). 
 
 If a rent-charge be granted out of land to a charitable 
 use, and the land is afterwards sold for valuable consi- 
 deration to one who has no notice, it has been said the 
 rent remains ; because the purchase was of another thing 
 that was not given to the charitable use(^) : but in 
 Tothil(M), the same case is referred to as an authority, 
 that a purchaser coming in without notice of a rent- 
 charge shall not be chargeable therewith, although given 
 to a charitable use. The correct distinction seems to be, 
 (*)that where the rent-charge is legal, it must, like every 
 other legal incumbrance, bind the purchaser, although 
 he purchased witiiout notice ; but that where it is a mere 
 equitable charge, the commissioners shall not make any 
 decree for payment of it against the purchase r, if he 
 purchased without notice. 
 
 If the first purchaser gave a valuable consideration, and 
 yet had notice, all that claim in privity under his estate 
 and title, whether they have notice or not, will be bound 
 by the decrees of the commissioners(.r). 
 
 This rule, as we shall hereafter see, differs from the 
 general rule of equity in this respect — a subsequent pur- 
 chaser without notice not being affected by notice in the 
 person of whom he purchased. 
 
 (s) Vide supra. Vol. 1, p. 272 ; Duke, 177. 
 
 [t) East Greenstead's case, Duke, 64 ; and see Peacock v. Thewer, 
 Duke, 82. 
 
 (m) Toth. 226. 
 
 (r) East Greenstead's case, Duke, 64 ; and see ibid. 173. 
 *183)
 
 OF PROTECTION FROM ACTS OF BANKRUPTCY. 
 
 215 
 
 With this exception, however, the same rules seem to 
 prevail in the construction of the act, with respect to no- 
 tice, as are generally adopted by eqiiity(?/). 
 
 SECTION HI. 
 Of Protection from Acts of Bankruptcy. 
 
 I. By the statute 13 Eliz. c. 7, a purchaser would be 
 defeated, although there should be forty years after an act 
 of bankruptcy, and before a commission ; and although 
 the purchaser had no notice ; for the words of the statute 
 are general after bankruptcy^ and the proviso in the end 
 of the statute makes it still plainer, viz. : That assurances 
 made by a bankrupt before bankruptcy, and bona Me, shall 
 not be defeated. — This was hard doctrine against fair pur- 
 chasers without notice ; but so the law was(2:). 
 
 With a view to prevent this injustice, and at the same 
 time to preserve to creditors their just rights, and perhaps 
 (*)in analogy to the statute of fines, it was by the 21 Jac. 
 l,c. 19, s. 14, enacted, that no purchase for good and valu- 
 able consderation should be impeached by virtue of that 
 act, or any other act theretofore made against bankrupts, 
 unless the commission to prove him a bankrupt should be 
 sued forth against such bankrupt within five years after 
 he should become a bankrupt. 
 
 But even after this provision it was dangerous to pur- 
 chase an estate from a trader ; for an act of bankruptcy 
 
 iy) Ibid. 
 
 (?) See For. 66, 67. 
 
 (*184)
 
 216 OF PROTECTION FROM 
 
 might -have been committed within five years before, 
 which would reach the estate(ft). 
 
 It has been decided, that if a purchaser have notice of 
 the act of bankruptcy, he is not a purchaser within the 
 meaning of the statute, and consequently is not entitled 
 to the benefit of it(6) : but if the act of bankruptcy arise 
 by the execution of a fraudulent deed, notice of the deed, 
 without notice of the fraud, will not be deemed notice of 
 the bankruptcy(c). This is a point which frequently 
 occurs in practice ; a deed appears upon an abstract, by 
 which the owner, being subject to the bankrupt laws, 
 conveys all his estate for the benefit of his creditors, and 
 to which all the creditors are stated to be parties(J). 
 Now, supposing the title to be so circumstanced, that the 
 purchaser could not be affected by an act of bankruptcy, 
 unless he had notice of it, the question at once arises, 
 whether notice of the deed is notice of any creditor not 
 having executed it, in which case the deed would be 
 fraudulent, and an act of bankruptcy. This is a very 
 important question, as it is impossible to give evidence of 
 all the creditors having executed. But it seems to follow 
 from the decision in Read v. Ward, that the purchaser 
 (*)would not be held to have had notice that all the credi- 
 tors were hot parties to the deed ; and this opinion ap- 
 pears to be adopted in practice. 
 
 To avoid a purchase, the act of bankruptcy must be 
 committed within five years before the commission(e). 
 The five years are, however, computed from the last act 
 of bankruptcy preceding the sale ; for the words of the 
 statute are not after he shall first be a bankrupt, but only 
 
 (a) See 4 Ves. jun. 39S. 
 
 (6) Read v. Ward, 2 Eq. Ca. Abr. 119 ; 7 Vin. Abr. 119 ; Mount- 
 ford V. Ponten, 1 Mont. 79. 
 (c) S. C. 
 
 (rf) See now 6 Geo. 4, ch. 16, s. 4, post. 
 (c) Radford v. Bloodworth, 1 Lev. 13. 
 (*185)
 
 ACTS OF BANKRUPTCY. 
 
 217 
 
 after becoming bankrupt generally(/) ; and, therefore, if 
 after several acts of bankruptcy an estate is sold by the 
 bankrupt, and a commission issues within five years from 
 the last act, the sale will be avoided(o-). But no act of 
 bankruptcy after the sale will aft'ect the purchaser ; and 
 consequently his title will not be impeached by any com- 
 mission issued after five years from the act of bankruptcy 
 immediately preceding the sale(/i). 
 
 II. Thus the law stood until Romilly's act for amend- 
 ing the laws relating to bankrupts(/), by which, after 
 reciting that great inconveniences and injustice had been 
 occasioned by reason of the fair and honest dealings and 
 transactions of and with traders being defeated by secret 
 acts of bankruptcy, in cases not already provided for, or 
 not sufficiently provided for by law, it was enacted, that 
 in all cases of commissions iher e after , to be issued, all 
 conveyances by, all payments by and to, and all contracts 
 and other dealings and transactions by and with, any 
 bankrupt bona fide made or entered into more than two 
 calendar months before the date of such commission, 
 (*)should, notwithstanding any prior act of bankruptcy 
 committed by such bankrupt, be good and effectual to all 
 intents and purposes whatsoever, in like manner as if no 
 such prior act of bankruptcy had been committed, pro- 
 vided the person or persons so dealing with such bank- 
 rupt had not at the time of such conveyance, payment, 
 contract, dealing or transaction, any notice of any prior 
 act of bankruptcy by such bankrupt committed, or that 
 he was insolvent, or had stopped payment. And it is 
 
 (/) Spencer r. Venacre, 1 Keb. 722 ; 1 Lev. 14. 
 
 {g) Jelliffr. Horn, 1 Keb. 12, cited ; Radford r. Bloodworth, 1 Lev. 
 13; 1 Keb. 11. 
 
 {h) Spencer v. Venacre, 1 Keb. 722 ; and see Cnllen's B. L. 241. 
 
 (t) 46 Geo. 3, c. 135, extended to executions juid atlacbmcnts by 
 49 Geo. 3, c 121, s. 2. 
 
 VOL. 11. 28 {*1S6)
 
 218 OF PROTECTION FROM 
 
 provided, that the issuing of a commission of bankruptcy 
 against such bankrupt, although such commission shall 
 afterwards be superseded, or the striking of a docket for 
 the purpose of issuing a commission against such bank- 
 rupt, whether any commission shall have actually issued 
 thereupon or not, shall be deemed notice of a prior act of 
 bankruptcy for the purposes of the act ; if it shall appear 
 that an act of bankruptcy had been actually committed at 
 the time of the issuing such commission, or striking such 
 docket. 
 
 The better opinion appears to be, that neither an act of 
 bankruptcy, nor a commission of bankruptcy, is of itself 
 notice to a purchaser ; and that notwithstanding the sta- 
 tute of James, a purchaser who has got in a prior legal 
 estate without notice of a commission or act of bank- 
 ruptcy, may protect himself against it(A;). But under 
 Romilly's act, a purchaser cannot avail himself of a prior 
 legal estate if a commission was actually issued, or a 
 docket struck previously to his purchase, although he had 
 not actual notice of the issuing of the commission or strik- 
 ing of the docket, because the statute expressly makes 
 those acts constructive notice. 
 
 It should seem, however, that the provision in the 
 statute of James, in favor of purchasers, is not repealed 
 by the late act. If it be not, then a purchaser will not 
 (*)be bound by the constructive notice established by the 
 late act, where he does not claim the benefit of it. Thus, 
 if it should appear that a commission had been issued or 
 a docket struck prior to the purchase, the purchaser could 
 not claim the benefit of the late act, although he had not 
 actual notice of the commission or docket ; but if more 
 than five years had elapsed since the purchase, and a new 
 commission were then to issue, it should seem that he may 
 insist upon the benefit of the act of James. So where a 
 
 {k) See this considered, Mi/)a, Ch. 17. 
 (*187)
 
 ACTS OF BANKRUPTCY. 2] 9 
 
 purchaser bona fide, and without notice, has a prior legal 
 estate, he may, notwithstanding either of the acts, make 
 use of it as a protection against the assignees. The 
 grounds of tliis opinion upon the late act are, that it was 
 passed in favor of purchasers ; that it does not say 
 affirmatively, that a commission issued two months after 
 a conveyance shall bind where a commission has been 
 issued, or a docket struck prior to the purchase, but 
 merely enacts negatively, that a commission issued after 
 that time shall not bind, unless a commission was issued 
 or a docket struck before the purchase. 
 
 The exp<'ess enactment, that the striking a docket or 
 issuing a commission shall operate as a constructive 
 notice to purchasers, seems to exclude all othe*- kinds of 
 constructive notice, so far as any aid is sought from this 
 statute : the Legislature having expressly declared that 
 these two particular acts shall be deemed constructive 
 notice, it must be inferred that they intended no other act 
 should have that effect. Therefore there is ground to 
 contend, that if a commission has not been issued or a 
 docket struck, a purchaser may avail himself of the sta- 
 tute, although, for instance, his solicitor had express 
 notice that the vendor had committed an act of bank- 
 ruptcy. Against this construction, it might, perhaps, be 
 argued, that as neither the striking of a docket, nor the 
 issuing of a commission, was prior to the statute of itself 
 (*)notice to a purchaser, the intention must have been to 
 make those acts constructive notice, in addition to the 
 acts which equity already deemed tantamount to actual 
 notice. Cases of actual notice will entirely deprive the 
 purchaser of the benefit of the act. 
 
 The provision which makes the striking of a docket 
 notice, in all events, was not approved of(/). It was not 
 originally in the act, and has since been repealed(/«). 
 
 (/) Rex I'. Bullock, 1 Taunt. 71 ; 14 Ves. jun. 462. 
 [m) 49 Geo. 3, c. 121. 
 
 (*188)
 
 220 O^ PROTECTION FROM 
 
 It is, as we have seen, also provided, that to claim the 
 benefit of the act, the purchaser must not have notice that 
 the bankrupt was insolvent, or had stopped payment. If 
 it should be thought that insolvency and stopping pay- 
 ment do not mean the same thing, considerable difficulty 
 must frequently arise on this provision. Insolvency of 
 itself appears to include not merely a stoppage of pay- 
 ment, but an inability to pay ; unless, however, the 
 evidence of insolvency be confined to an actual stoppage, 
 it would not be easy to say what shall be deemed notice 
 of it. 
 
 Since the above observations were written, it has been 
 decided, that the insolvency mentioned in the statute, 
 means a general inability in the bankrupt to answer his 
 engagements(n). 
 
 In a late case(o), Mr. Justice Le Blanc said, that he 
 took insolvency, as it respects a trader, to mean that he is 
 not in a situation to make his payments as usual, and 
 that it does not follow that he is not insolvent because he 
 may ultimately have a surplus upon the winding up of 
 his affairs ; and Mr. Justice Bayley agreed, that insol- 
 vency means that a trader is not able to keep his general 
 (*)days of payment, and that he is not to be considered 
 as solvent because possibly his affairs may come round. 
 
 The provision, that the issuing of a commission shall 
 be notice, although such commission shall afterwards be 
 superseded, extends even to a commission which has 
 been superseded, without being opened, although it was 
 contended, that the Legislature must have meant a com- 
 mission opened, and acted upon, though afterwards su- 
 perseded (jt?), 
 
 (n) Anon. 1 Camp. Ca. 491, n. See Abrahams. George, 11 Price, 
 423 ; Spralt v. Hobhouse, 4 Bing. 173 ; 12 Moo. 395, S. C. 
 (o) Bayly v. Schofield, 1 Mau. & Selw. 338. 
 (jo) Watkins v. Maund, 3 Camp. Ca. 308. 
 (*lfi9)
 
 ACTS OF BANKRUPTCY. 221 
 
 III. The law has again been altered by the act of the 
 6th of the late King. The observations already made 
 show how the law stood before that act, which is still 
 necessary to be known, and therefore those observations 
 are retained. 
 
 The act referred to contains the following provisions 
 relating to purchasers : 
 
 1. By the 81st section(9) it is enacted, that all con- 
 veyances by, and all contracts and other dealings and 
 transactions by and with, any bankrupt bona fide made 
 and entered into more than two calendar months before 
 the date and issuing of the commission against, and all 
 executions and attachments against, the lands and tene- 
 ments or goods and chattels of such bankrupt, bona fide 
 executed or levied more than two calendar months before 
 the issuing of such commission, shall be valid, notwith- 
 standing any prior act of bankruptcy by him committed, 
 provided the person or persons so dealing with such 
 bankrupt, or at whose suit, or on whose account, such 
 execution or attachment shall have issued, had not at the 
 time of such conveyance, contract, dealing or transaction, 
 (*)or at the time of executing or levying such execution 
 or attachment, notice(r) of any prior act of bankruptcy by 
 him committed(5) ; provided also, that where a commis- 
 sion has been superseded, if any other commission shall 
 issue against any person or persons comprised in such 
 first commission within two calendar months next after it 
 shall have been superseded, no such conveyance, con- 
 tract, dealing or transaction, execution or attachment, 
 shall be valid, unless made, entered into, executed or 
 levied more than two calendar months before the issuing 
 the first commission, 
 
 (9) 6 Geo. 4, c. 16 ; see 1 & 2 Will..4, c. 66 ; 3 & 4 Will. 4, c. 47. 
 (r) That he was insolvent or had stopped payment onnitled. 
 (s) 46 Geo. 3, c. 135, s. 1, and 49 Geo. 3, c. 121, s. 2. 
 
 (*190)
 
 2^ OF PROTECTION FROM 
 
 2. And by section 83 it is enacted, that the issuing of 
 a commission shall be deemed notice of a prior act of 
 bankruptcy (if an act of bankruptcy had been actually 
 committed before the issuing of the commission), if the 
 adjudication of the person or persons against whom such 
 commission has issued shall have been notified in the 
 London Gazette, and the person or persons to be affected 
 by such notice may reasonably be presumed to have seen 
 the same(i). 
 
 3. And by s. 85 it is enacted, that if any accredited 
 agent of any body corporate or public company shall have 
 had notice of any act of bankruptcy, such body corporate 
 or company shall be thereby deemed to have had such 
 notice(w). 
 
 4. And by the 86th section it is enacted, that no pur- 
 chase from any bankrupt, bona jide and for valuable con- 
 sideration, where the purchaser had notice at the time of 
 such purchase of an act of bankruptcy, by such bankrupt 
 committed, shall be impeached by reason thereof, unless 
 (*)the commission against such bankrupt shall have been 
 sued out within twelve calendar months(«;) after such act 
 of bankruptcy (?<?). 
 
 5. And by the 87th section it is enacted, that no title 
 to any real or personal estate sold under any commission, 
 or under any order in bankruptcy, shall be impeached by 
 the bankrupt, or any person claiming under him, in- 
 respect of any defect in the suing out of the commission, 
 or in any of the proceedings under the same, unless the 
 bankrupt shall have commenced proceedings to supersede 
 the said commission, and duly prosecuted the same within 
 twelve calendar months from the issuing thereof. But 
 
 {I) See Spratt v. Hobhouse, 4 Bing. 173 ; 12 Moo. 396, S. C. 
 
 [v) Ibid, , 
 
 (u) Instead of five years. 
 
 (t») 21 Jac. l,c. 19, s. 14. 
 
 (*191)
 
 ACTS OF BANKRUPTCY. 223 
 
 this provision does not protect a purchaser against the 
 claim of an assignee under a subsequent commission, 
 after the first commission under which he purchased has 
 been superseded (a:). 
 
 6. And it is enacted by section 4, that where any 
 trader within the act, shall, after the act shall have come 
 into effect, execute any conveyance or assignment by 
 ' deed to a trustee or trustees of all his estate and effects 
 for the benefit of all the creditors of such trader, the exe- 
 cution of such deed shall not be deemed an act of bank- 
 ruptcy, unless a commission issue against such trader 
 within six calendar months from the execution thereof by 
 such trader ; provided that such deed shall be executed 
 by every such trustee within fifteen days after the execu- 
 tion thereof by the said trader ; and that the execution bv 
 such trader, and by every such trustee, be attested by an 
 attorney or solicitor ; and that notice be given within two 
 months after the execution thereof by such trader, in case 
 such trader reside in London, or within forty miles thereof, 
 (*)in the London Gazette, and also in two London daily 
 newspapers ; and in case such trader does not reside 
 within forty miles of London, then in the London Gazette, 
 and also in one London daily newspaper, and one pro- 
 vincial newspaper published near to such trader's resi- 
 dence, and such notice shall contain the date and execu- 
 tion of such deed, and the name and place of abode 
 respectively of every such trustee, and of such attorney 
 or solicitor. 
 
 (x) Gould V. Shoyer, 6 Bing. 738 ; 4 Moo. & P. 636, S. C. 
 
 (*192)
 
 224 
 
 OF PROTECTION FROM JUDGMENTS. 
 
 SECTION IV. 
 Of Protection from Judgments and Recognizances. 
 
 ■fe 
 
 I. By a fiction in law, all judgments were supposed to 
 be judgments of the first day of the term in which they 
 were obtained ; and therefore a purchaser might have his 
 estate incumbered by a judgment acknowledged subse- 
 quently to his purchase(?/). 
 
 To obviate this injustice, it was enacted (2), that any 
 judge or officer of any of His Majesty's Courts of West- 
 minster, that should sign any judgments, should, at the 
 signing of the same, set down the day of the month and 
 year of his so doing, upon the paper book, docket or 
 record, which he should sign ; which day of the month 
 and year should also be entered on the margin of the roll 
 of the record where the said judgment should be entered, 
 and such judgments, as against purchasers bona fide for 
 valuable considerations of lands, tenements or heredita- 
 ments, (*)to be charged thereby, should in consideration 
 of law be judgments only from such time as they should 
 be so signed, and should not relate to the first day of the 
 term whereof they were entered, or the day of the return 
 of the original, or filing the bail. And this provision has 
 been since extended to the Courts of Great Session in 
 Wales, and to the Courts of Session in the counties pala- 
 tine of Chester, Lancaster and Durham(a). 
 
 {y) Vide supra, Vol. 1, p. 539, as to judgments, 
 (s) 29 Car. 2, c. 3, s. 14, 15. 
 (a) 8 Geo. 1, c. 25, s. 6. 
 (*193)
 
 OF PROTECTION FROM JUDGMENTS. 
 
 225 
 
 But tliough this settled all dilTerences respecting the 
 fiction of law, whereby judgments were supposed to be all 
 of the first dav of the term, by compelling the party to set 
 down the particular period when the judgment was signed, 
 and declaring that, as against purchasers bona fide for a 
 valuable consideration, the lands, tenements and heredi- 
 taments lo be charged thereby, should be charged only 
 from such time as the judgment was signed ; yet, inas- 
 much as it did not compel the plaintiff to carry in the 
 judgment roll, purchasers and others were rendered 
 almost incapable of discovering what judgments were. 
 recovered(6j. 
 
 And, therefore, by another statute(c) it was enacted, 
 that the clerk of the essoigns of the Court of C. B., the 
 clerk of the doggets of the Court of B. R. and the master of 
 the office o/ pleas in the Court of Exchequer, should make 
 and put into an alphabetical dogget, by the defendants 
 names, of all the judgments entered in their respective 
 Courts of Michaelmas and Hilary terms, before the last 
 day of the ensuing terms ; and of the judgments of Easter 
 and Trinity terms, before the last day of Michaelmas 
 term ; and that no judgments should affect lands or tene- 
 ments as to bona fide purchasers for valuable considera- 
 tion, (*)unless docketed and entered according to the act; 
 and it is directed that every dogget shall be put into and 
 kept in books in parchment, to be searched by all persons, 
 at reasonable times, paying fourpence for searching every 
 term. 
 
 " Dockets or indexes to judgments were in use long 
 before this statute. They were invented by the Courts 
 for their own ease, and the security of purchasers, to avoid 
 the trouble and. inconvenience of turning over the rolls at 
 
 (6) Robinson v. Harrington, 1 Pow. Mort. 618, 4th edit. S. C. MS. 
 (e) 4 & 5 W. & M. c. 20, made perpetual by 7 and S W. 3, c. 36, 
 s. 3. 
 
 VOL. II. 29 (*194;
 
 22Q OF PROTECTION FROM JUDGMENTS. 
 
 large. The statute of William and Mary did not super- 
 sede the former practice of docketing the judgment in 
 parchment or paper, which is still necessary to be done by 
 the attornies on entering and bringing in the rolls ; but 
 was intended to operate in addition to that practice, by 
 requiring the dockets to be entered in alphabetical order 
 by the officers of the Court(f/)." 
 
 Now, upon the provisions of this act it has been ob- 
 served, that judgments cannot be docketed after the time 
 mentioned in the act ; and the practice of the clerks in 
 docketing them after that time is only an abuse for the 
 sake of their fees, and ineffectual to the party(e). And 
 as the object of the act is to enable purchasers to discover 
 judgments by the names of the persons against whom 
 they are entered, if the name of a defendant be falsely 
 entered, as Compton for Crompton, the judgment will be 
 void against purchasers, and the Court will not amend 
 the record (/). 
 
 If it is wished to enter a judgment as of a term, it must 
 be actually entered before the essoign-day of the succeed- 
 ing term ; and Lord C. J. Holt has said, that if judgment 
 be signed in a term, and in the subsequent vacation the 
 (*)defendant sells lands, and before the essoigns of the 
 next term the plaintiff enter his judgment, it shall affect 
 the lands in the hands of the purchaser(,§-). And alihough 
 this has been doubted(/i), yet it seems to be correct, as 
 the judgment is not affected by the act of Charles 2, or 
 that of William and Mary. The judgment binds only 
 according to the letter of the stalute of Charles ; and it is 
 not required to be docketed by the act of William and 
 
 {d) Tidd's Pract. 858. 860. 3.1 edit; Gilb. C. P. 140. 
 (e) Per Master of the Rolls, in Forshall r. Coles, Appendix, No. 20, 
 sed qti. 
 
 if) Sale V. Crompton, 1 Wils. 61 ; 2 Sfr. 1209. 
 ig) Hodges V. Templar. 6 Mod. 191. 
 
 (h) Tidd's Pract. 857; Bac. Abr. by Gwiil. tit. Execution (I) n. 
 (*196)
 
 OF PROTECTION FRO.M JUDGMENTS. 22? 
 
 Mary, till before the last day of the subsequent term. 
 And there is no inconvenience in this rule, for I find, upon 
 inquiry, that the practice is to index judgments as soon 
 as they are signed, in order to enable purchasers to search 
 for them with facility. But this practice is wholly inde- 
 pendent of the directions of the act by which judgments 
 are required to be docketed. 
 
 Although a judgment is not duly docketed, and there- 
 fore void against a purchaser, yet if the purchaser has 
 notice of it, and did not pay the value of the estate, it 
 will be presumed that he agreed to pay off the judgment, 
 and equity will compel him to pay it(i). 
 
 The general rule of equity would warrant an assertion, 
 that the case would be the same although no agreement 
 were made. In the case of Forshall v.. Coles(A;), how- 
 ever, it appears that the Master of the Rolls held decid- 
 edly that notice of a judgment not docketed was not 
 material. But this decision cannot be relied on : the 
 effect of it would be to overrule all the decisions on the 
 statutes for registry(/). They were passed for precisely 
 the same purpose as the act of William and Mary, viz. to 
 enable purchasers readily to discover incumbrances ; and 
 (*)therefore, if a purchaser has notice of any judgment, 
 the statute does not in equity extend to him, as he is 
 already in possession of what the Legislature intended to 
 furnish him with. This point, upon which a considerable 
 difference of opinion recently prevailed in the Profession, 
 has lately been decided by Lord Lldon in favor of the 
 judgment creditor. The case of Forshall v. Coles is 
 therefore overruled(?7t). 
 
 (0 Thomas v. Pledwell, 7 Yin. Abr. 53, pi. 5 ; 2 Eq. Ca. Abr. 684, 
 pi. 7. 
 
 (k) 7 Vin. Abr. 54, pi. 6 ; 2 Eq. Ca. Abr. 692, pi. 8 ; S. C. MS. 
 a better note, Appendix, No. 20. 
 
 (/) Vide infra, sect. 5. 
 
 (m) Davis r. Earl of-Strathmore, 16 Ves. jun. 419. 
 
 (*196)
 
 o^Q OF PROTECTION FROM JUDGMEiNTS. 
 
 The Statute of 21 Jac. l(w), for the better division of 
 the estates of bankrupts, enacted, that all creditors by 
 judo-ment, whereof execution was not served and executed 
 before the bankruptcy, should only come in rateably wilh 
 the other creditors ; and this is carried still farther by 
 the late act(o). In general, therefore, judgments against 
 a bankrupt are not material where the estate is sold by his 
 assignees. In a late case(p), a man sold a freehold estate, 
 and the conveyance was executed by all the material 
 parties ; but no part of the money was paid, and the con- 
 veyance remained in the seller's hands. In this stage he 
 became a bankrupt, and a commission issued against him ; 
 and it appeared that judgments were entered up against 
 him previous to the bankruptcy. The purchaser required 
 satisfaction to be entered up on the judgments. This 
 was resisted on the ground that, by the statute of James 
 1, the judgment debts were reduced to a level with the 
 simple contract debts, for the object of that statute was 
 to put all the creditors on an equality(7). Now, it was 
 clear that the seller had an equitable lien on the land for 
 its whole value, and that the money would go to the as- 
 signees : and, consequently, if the judgment creditors 
 could execute their judgments against the purchaser, they 
 (*)would obtain a preference over the other creditors ; for, 
 of course, the purchaser was not to pay his money, and 
 also be liable to the judgments. The case of Orlebar 
 V. Fletcher(r), appeared to be a stronger case against the 
 judgment creditors than the present, for there the pur- 
 chaser had paid the greater part of the purchase-money 
 before the bankruptcy ; and although, in the present case, 
 
 (n) Ch. 19, s. 9. 
 
 (o) 6 Geo. 4, c. 16, s. 108. 
 
 (p) Sloper V. Fish, Rolls, 29th July 1813 ; 2 Ves. & Bea. 145. 
 
 iq) Lee Newland v. , 1 P. Wms. 92. 
 
 (r) 1 P. Wms. 737. 
 (*197) 
 
 .J
 
 OF PROTECTION FROM JUDGMENTS. 
 
 229 
 
 the conveyance was executed, yet it was not delivered, 
 and therefore might be considered as an escrow(5) ; and 
 even if it operated to vest the legal estate in the purchaser, 
 yet the case was within the spirit and meaning of the act 
 of James ; because the estate in effect formed part of the 
 property to be distributed. Upon these grounds the 
 assignees filed a bill against the purchaser for a specific 
 performance ; but the Master of the Rolls thought the 
 title too doubtful to enable him to force it on the pur- 
 chaser. 
 
 In a later case, however(^), where a man agreed to 
 sell his estate, and became a bankrupt before the convey- 
 ance was executed, the same learned Judge held that the 
 assignees of the seller could make a title without the con- 
 currence of judgment creditors whose judgments were 
 duly docketed before the bankruptcy. 
 
 The 21 Jac. 1, c. 24, which enables persons to have 
 new execution against the property of debtors dying in 
 execution, provides, that the act shall not extend to give 
 liberty to any person or persons, their executors or admi- 
 nistrators, at whose suit or suits any such party shall be in 
 execution, and die in execution, to have or take any new 
 execution against any the lands, tenements or he'redita- 
 ments (*)of such party dying in execution, which shall at 
 any time after the said judgment or judgments be by him 
 sold bona fide for the payment of any of his creditors, and 
 the money which shall be paid for the lands so sold either 
 paid or secured to be paid to any of his creditors, with 
 their privity and consent, in discharge of his or their due 
 debts, or of some part thereof. 
 
 (s) Derby Canal Company v. Wilmot, 8 East, 360. See O'Dell v. 
 Wake, 3 Camp. 394, where the deed was in the possession of the pur- 
 chaser's solicitor. 
 
 (/) Sharpe v. Roahde, 2 Rose, 192. 
 
 (*]98)
 
 230 ^^ PROTECTION FROM JUDGMENTS. 
 
 II. Formerly, if goods had been sold during long 
 vacation, a fieri facias tested the preceding term would 
 have over-reached the sale, although issued subsequently 
 to it(M). 
 
 To remedy this inconvenience, it was enacted(a;), that 
 no writ oi jitri facias, or other writ of execution, should 
 bind the properly of goods against whom such writ of 
 execution was sued forth, but from the time that such writ 
 should be delivered to the sheriff, under-sheriff or coroners, 
 to be executed ; and for the better manifestation of the 
 said time, the sheriff, under-sheriff and coroners, their 
 deputies and agents, should upon the receipt of any such 
 writ, without fee for doing the same, indorse upon the 
 back thereof the day of the month or year whereon he or 
 they received the same(I). 
 
 It has been said(?/), that the whole intention of this 
 provision was to secure purchasers, under a second exe- 
 cution, against any former writ which might- have been 
 delivered to the sheriff. But a purchaser under a second 
 execution was always protected against any prior writ of 
 (*)which he had no notice, by the rule of law, independ- 
 ently of the statute of frauds(2) ; and the reason already 
 given appears to be the correct one. 
 
 It has been doubted whether the word " goods," in 
 the act referred to, extends to leasehold estates ; and it 
 
 («) Houghton V. Rushley, Skin. 257 ; and see Comb. 145 ; 2 
 Ventr. 218. 
 
 {x) 29 Car. 2, c. 3, s. 16. 
 
 {y) Per Ashhurst, J. in casii Hutchinson v. Johnson, 1 Term Rep. 
 731. 
 
 (2) See Smallcomb v. Buckingham, 1 Lord Ray m. 251 ; Carlh. 419 ; 
 Payne v. Drewe, 4 East, 523. 
 
 (I) This statute only operates in favor of purchasers. It was not 
 passed for the benefit of the debtor. Houghton v. Rushley, sup. and 
 Norden v. Needham, Pasch. 3 W. & M. B. R. MS. In this last case 
 it was held that deeds and writings could not be taken in execution. 
 
 (■*199)
 
 OF PROTECTION Fr,OM JUDGMENTS. ' 231 
 
 appears by two opinions published in Mr. Rigge's Obser- 
 vations on Registry, that Mr. Serjeant Hill thought it did 
 not include leaseholds, but that they might be extended 
 on a writ of elegit ; and consequently were bound from 
 the time the judgment was duly entered and docketed ; 
 and that, on the other hand, Mr. Butler thought the word 
 " goods" did comprise leaseholds, which therefore w ere 
 not bound until delivery to the sheriff of the writ of 
 execution. 
 
 It must be admitted, that a leasehold for years may be 
 extended on an elegit, if it is in the possession of the de- 
 fendant at the time execution is awarded(«). It was, 
 however, settled long before the statute of Charles 2, 
 that a sale of chattels was good after judgment, although 
 not after execution awarded(6) ; so that as to a term of 
 years the command to the sheriff in an elegit does not 
 overreach the sale in the same manner as it does in the 
 case of a freehold estate. This distinction appears to 
 have been expressly taken in Fleetwood's case. 
 
 With respect to judgments, the statute of frauds hath 
 two branches : the one relating to judgments against real 
 estate ; the other relating to executions on judgments 
 against goods or personal estate. The act being a remedial 
 (*)one, the mode of discovering whether leaseholds are 
 bound by the last provision, seems to be, first, an inquiry 
 whether purchasejrs of leaseholds were within the mis- 
 chief the Legislature intended to guard against ; and if 
 they were, then an inquiry w^hether the word " goods" is 
 sufficiently comprehensive to effectuate the intention of 
 (he act. 
 
 (a) Sir Gerard Fleetwood's case, 8 Co. 171 ; and see and consider 
 31 Ass. p. 6 ; 38 Ass. p. 4 ; and see 2 Inst. 395 ; Gilb. Ex. 33. 35. 
 
 (b) Sir Qerard Fleetwood's case, 8 Co. 171 ; and see 1 Fitz. Abr. 
 tit. Execution, pi. 108; 2 Ro. Abr. 167; Wilson r. Wormol, Godb. 
 161, pi. 226 ; Shirley v. Watts, 3 Atk. 200. 
 
 (*200)
 
 232 ^^ PROTECTION TROM JUDGMENTS. 
 
 First, the act was passed for the quiet and in favor 
 of purchasers ; and admitting that leaseholds were only 
 bound from the award of execution, it is evident that the 
 first provision in the act does not apply to leaseholds ; 
 w^hich are, therefore, clearly within the mischief intended 
 to be guarded against by the second provision, as a sale 
 of them is liable to be overturned by a writ awarded in 
 vacation, and tested in the preceding term ; and if we do 
 not hold leaseholds to be within the operation of this 
 branch of the act, purchasers of them are still liable to 
 the danger which the statute intended to guard them 
 against. 
 
 Assuming that leaseholds are within the meaning, it 
 remains to inquire whether they are within the words of 
 the act. This depends upon the construction which the 
 word " goods," in the act, ought to receive. 
 
 Biens, bona, Sir Edward Coke says(c), includes all 
 chattels, as well real as personal. Chattels, he adds, is a 
 'French word, and signifies goods, which by a word of 
 art we call catalla. And this, as Sir Wm. Blackstone 
 observes(J), is true if understood of the Norman dialect 
 for in the Grand Coiistumier(e), we find the word chat- 
 tels used and set in opposition to a fief or feud, so that 
 not only goods, but whatever was not a feud, were 
 (*)accounted chattels ; and the learned commentator is of 
 opinion that our law adopts it in tlip same large, ex- 
 tended, negative sense. 
 
 This opinion appears to be correct, if confined to 
 the word chattels; but it must not be extended to the 
 word goods, which, in our law, has a more confined 
 operation. 
 
 By the civil law, however, bona includes all chattels, 
 as well personal as real ; and therefore a general bequest 
 
 (c) Co. Litt. 118. b. {d) 2 Com. 385, 7th edit. (c) C. 87. 
 (*201)
 
 OF PROTECTION FROM JUDGMENTS. 233 
 
 of all one's goods will pass a leasehold estate(/), because 
 the civil law guides the construction of bequests of per- 
 sonalty ; but it seems clear, that in an assignment, which 
 must be construed according to the rules of the common 
 law, a leasehold estate will not pass under the word 
 goods(l). 
 
 It appears, therefore, that in some cases that word 
 will include leaseholds, while in others it will not ; and 
 the true rule to discover what sense was affixed to it in 
 the statute of frauds seems to be, an investigation of the 
 meaning usually attached to the same word in acts of 
 parliament passed before that statute. 
 
 By the statute of West. 2. (,«-), it is enacted, that where, 
 (*)upon the death of any person intestate and indebted, 
 the goods (bona) shall come to the ordinary, he shall be 
 bound to pay the debts so far as the goods (bona) will ex- 
 tend, in the like manner as executors would have been if 
 he had left a will. And in the 31st Edw. 3.(/i), for the 
 commitment of administration, the word goods (biens) 
 only is used. 
 
 In both these statutes, therefore, the word goods was 
 considered as denoting personalty in general. It may 
 
 (/■) Poitman v. Willis, Cro. Eliz. 3S6. 
 (g-) 1.3 Ed. 1, c. 19. 
 {h) Stat. 1, c. 11. 
 
 (I) This was decided in 4 Edw. 6 ; but in Portman v. Willis, m5« sup. 
 Gawdy was of opinion, against Popham and Clench, that a grapt of 
 omnia bona mobilia el immobilia, would pass leases for years ; and so, 
 he said, would a grant of omnia bona in general ; for 39 H. 6, 35, was, 
 that a man had rent for years, and granted omnia bona sua ; and it was 
 held that this rent passed ; and he vouched 4 Hen. 4, as another autho- 
 rity, because an executor shall have an ejeclione firmce by the equity of 
 the statute of 4 Ed. 3, de bonis asporlatis. 
 
 On examination, it appears that the authorities cited by Gawdy do 
 
 not apply. The grant was of omnia bona et catalla, tarn viva quam 
 
 morlua; and in the statute of 4 Edw. 3, the words biens el chaletix 
 
 are used. 
 
 VOL. II. 30 (*202)
 
 OQA OF PROTECTION FROM JUDGMENTS. 
 
 indeed be objected, that terms for years were not then 
 much in use ; but allowing this, later acts place the point 
 still more out of doubt. 
 
 Thus the 21st Hen. 8, c. 5, after directing how 
 administration shall be granted in certain cases of the 
 " goods" of intestates, contains a direction, that surety 
 shall be taken of the administrators for the administra- 
 tion of the " goods, chattels and debts," which they 
 should be authorized to minister(i). 
 
 In this statute, the word " goods" was used as sy- 
 nonymous to " goods, chattels and debts ;" and the point 
 seems to be placed beyond controversy by the same sense 
 being attached to that word in a statute passed but a feu- 
 years previously to that upon which the present question 
 arises. 
 
 The statute to which I allude is the 22d and 23d Car. 2, 
 c. 10, which, after giving power to commit administration 
 of the " goods" of intestates, directs bonds to be taken, 
 with a condition for (amongst other things) making an 
 inventory of the " goods, chattels and credits" of the 
 deceased ; which words are used througiiout the condi- 
 tion. In fact, the words " goods," " goods, chattels and 
 credits," and " estate," have one and the same meaning 
 attached to them throughout the statute(A;). 
 
 (*)It remains to remark, that Lord Hardwicke seems to 
 have considered leaseholds as within the operation of the 
 16th section of the statute of frauds, and consequently as 
 not bound until the delivery of the writ of execution to 
 the sheriff. 
 
 For in Burdon v. Kennedy(/), his Lordship said, 
 where an execution by elegit, or fieri facias is lodged in 
 
 (i) And see 43 Eliz. c. 8. 
 (k) And see 29 Car. 2, c. 3, s. 25. 
 
 (/) 3 Atk. 739 ; and see Jeanes v. Wilkins, 1 Ves. 195 ; Foifh v. 
 Duke of Norfolk, 4 Madd. 503. 
 (*203)
 
 OF PROTECTION PROM UNREGISTERED DEEDS, &c. ^35 
 
 a sheriff's hands, it binds goods from that time, except in 
 the case of the Crown, and a leasehold estate is also affect- 
 ed from thai time ; and if the debtor, subsequent to this, 
 makes an assignment of the leasehold estate, the judg- 
 ment creditor need not bring a suit in ejectment to come 
 at the leasehold estate, by setting aside the assignment, 
 but may proceed at law to sell the term, and the vendee, 
 who is generally a friend to the plaintiff, will be entitled 
 at law to the possession, notwithstanding such assign- 
 ment(I). 
 
 ill. There is still another provision in the act of 
 Charles 2. in favor of purchasers. It is enacted, that the 
 day of the month and year of enrolment of recognizances 
 shall be set down in the margin of the roll ; and that no 
 recognizance shall bind any lands, &c. in the hands of any 
 purchaser, bona fide and for valuable consideration, but 
 from the time of such enrolment(m). 
 
 9ei^e 
 
 (*)SECTION V. 
 OJ Protection from unregistered Deeds, ^c. 
 
 Bv several acts of parliament, all deeds and wills con- 
 cerning estates within the nortli(/i), east(o), or west(p) 
 ridings of the county of York ; or within the town and 
 
 (m) 29 Cha. 2, c. 3, s. 18. (a) 8 Geo. 2, c. 6. 
 
 (0) 6 Anne, c. 35. (p) 2 & 3 Anne, c. 4 ; 6 Anne, c. 18. 
 
 (1) Note, if the judgment-creditor tamper with the sheriff to have 
 the estate sold at an undervalue, equity will relieve against the sale. 
 Gascoign r. Stut, 3 Cha. Rep. 32. See Dillon v. Byrn, Irish Term 
 
 Rep. 600. 
 
 (*204)
 
 236 ^*' PROTECTION FROM 
 
 county of Kingston-iipon-Hull(^) ; or within the county 
 of Middlesex(r), are directed to be registered. 
 
 And it is enacted, that all such deeds shall be adjudged 
 fraudulent and void against any subsequent purchaser, or 
 mortgagee, for valuable consideration, unless a memorial 
 thereof be registered in the manner thereby prescribed, 
 before the registering of the memorial of the deed under 
 which such subsequent purchaser or mortgagee shall claim. 
 
 And that all devises by will shall be adjudged fraudu- 
 lent and void against subsequent purchasers or mortga- 
 gees, unless a memorial of such will be registered within 
 the space of six months after the death of the devisor, 
 or testatrix, dying within Great Britain ; or within the 
 space of three years after his or her death, dying upon the 
 sea, or in parts beyond the seas. Wills registered within 
 the time allowed by the act will prevail over even a prior 
 registered conveyance ; but no time is limited by the act 
 within which a memorial of a will must be registered. It 
 may therefore be registered at any time \a here there is no 
 adverse title under a prior registered conveyance ; and 
 there is no weight in an objection which has lately been 
 (*)made, that the estate descends to the heir at law, if 
 the will be not registered within the periods above speci- 
 fied. 
 
 This provision is the same in all the acts, but different 
 provisions are made by the several acts in the case of 
 wills contested or suppressed. 
 
 If the devisee of an estate within any of the three rid- 
 ings of the county of York, or the town of Kingston- 
 upon-Hull, be disabled to exhibit a memorial within the 
 time limited, by the suppression of the will, or other in- 
 evitable difficulty, then a memorial entered of such im- 
 pediment within six months after the death of such devi- 
 sor or testatrix, who shall die within Great Britain, or 
 
 ((/) 6 Auno, c. 35. (>•) 7 Anne, c. 20.
 
 UNREGISTERED DEEDS, &c. 237 
 
 within three years after the desease of such person who 
 shall die upon the sea, or beyond the seas ; and a memorial 
 of such will, also registered within six months after the 
 removal of such impediment, will protect the devisees 
 against any purchaser subsequently to the will. 
 
 But as to the estates in the north riding of York, it is 
 enacted, that in case of the concealment or suppression 
 of any will or devise, any purchaser shall not be disturbed 
 or defeated in his purchase, unless the will be actually 
 registered within three years after the death of the de- 
 visor. 
 
 As to estates in the county of Middlesex, it is provided, 
 that an entry of the impediment within two years after 
 the death of any devisor or testatrix who shall die in 
 Great Britain, or within four years after the decease of 
 such person who shall die upon the sea or beyond the 
 seas ; and the registry of a memorial of the will within 
 six months after the removal of the impediment, shall be 
 good. But no concealed will is to affect a purchaser, 
 unless it be registered within five years after the death 
 of the testator. 
 
 None of the acts extend to copyhold estates, or to leases 
 at rack-rents, or not exceeding twenty-one years, where 
 (*)the actual possession and occupation go along with the 
 lease. And the act for the county of Middlesex does not 
 extend to any of the chambers in Serjeants Inn, the Inns 
 of Court, or Inns of Chancery. 
 
 And it is by the same acts further provided, that no 
 judgment, statute or recognizance (other than such as 
 shall be entered into in the name and upon the proper 
 account of the king, his heirs and successors) shall bind 
 any such estates as aforesaid, but only from the time that 
 a memorial thereof shall be duly entered. 
 
 This clause is general as to estates in Middlesex ; but 
 as to estates in the east and west ridings of York and 
 
 (*206)
 
 23S 
 
 OF PROTECTION FROM 
 
 Kingstoii-upon-Hull, it is enacted, that the registry of 
 judgments, statutes or recognizances within thirty days 
 after the acknowledging or signing thereof, shall bind 
 all the lands of the defendant at the time of such acknow- 
 ledgment or signing ; and the same provision is made as 
 to estates in the north riding of York, only that the time 
 is limited to twenty days. 
 
 In commenting on these important acts, I propose to 
 consider, first, the memorial required by the acts ; 
 secondly, what instruments must be registered ; thirdly, 
 the exceptions in the acts ; and fourthly, the equitable 
 doctrine on these statutes in regard to notice. 
 
 I. And first, every memoral of a deed or conveyance 
 is directed by the acts to be under the hand and seal of 
 some or one of the grantors or grantees, his or their heirs, 
 executors or administrators, guardians or trustees, attest- 
 ed by two witnesses, one whereof to be one of the wit- 
 nesses to the execution of the deed ; which witness shall, 
 upon his oath before the registrar, prove the signing and 
 sealing of the memorial and the execution of the deed 
 mentioned in such memorial, 
 
 (*)A line by mistake omitted in the act for the North 
 Riding of York ; the memorial is required to be attested 
 " by two witnesses to the execution of such deed, which 
 witness" is directed to prove the execution of the memorial 
 and the deed. It is evident, that the words in the other 
 acts "one whereof to be one of the witnesses" are omit- 
 ted after the word " witnesses," and before the words 
 " to the execution of such deed." By this act the person 
 signing the memorial may acknowledge it, and the exe- 
 cution of the deed. 
 
 The intention of the Legislature clearly was, that no 
 deed should be memorialized, the execution of which by 
 the granting party was not proved on oath by one of the 
 witnesses to it ; for although the memorial may be cxe- 
 
 (*207)
 
 UNREGISTERED DEEDS, &c. 239 
 
 cuted either by the grantor or grantee, yet one of the 
 witnesses to it must be a witness to the execution of the 
 deed, and this must be understood to mean not merely 
 the execution by an unnecessary party, as the grantee, 
 but the execution by the party from whom the estate 
 moves. 
 
 It is however observed, in the Observations on Regis- 
 try(5), that if a considerable time has elapsed from the 
 date of a deed intended to be registered, and all the wit- 
 nesses are dead, or the testimony of any of them not easily 
 obtained, no further delay need originate from either 
 cause ; as the re-execution of such deed by any one of the 
 parties in the presence of a new loitness, will be sufficient 
 to effectuate the registry. 
 
 Now there seems great reason to contend, that such a 
 memorial would be wholly inoperative under the register- 
 ing acts. A witness to the execution of a deed, which is 
 intended to be registered, was required for the purpose of 
 authenticating the original execution of it, and to prevent 
 (*)forged deeds from being put on the register(^). The 
 requisition of the act is not even substantially complied 
 with by an execution, which is totally inoperative, and 
 whicli, if it had any operation, would be a fraud upon the 
 revenue. 
 
 It seems that the direction in the act, by which the 
 heirs, executors or administrators, guardians or trustees 
 of some or one of the grantors or grantees, are authorized 
 to execute the memorial, has been thought not to convey 
 a very clear idea of the manner in which the registry by 
 such representative is to be effected ; and therefore the 
 register requires the instrument to be registered, to be 
 sealed and delivered by the person requiring the registry, 
 as if he was a party in his own right(M). 
 
 (s) Rigge on Reg. p. 76, n. (d) ; Precedent, No. 32, p. 143. 
 (0 Sec Hobhouse r. Hamilton, 1 Scho. & Lef. 207. 
 
 (") Rigge, 74, n. (b) ; Precedent, No. 31, p. 142. 
 
 (*208)
 
 240 
 
 OF PROTECTION FROM 
 
 But it seems quite clear, that no such execution is ne- 
 cessary. The representative need execute the memorial 
 only in the presence of two witnesses, " one whereof to be 
 one of the witnesses to the execution of such deed or con- 
 veyance," which witness will then, according to the very 
 words of the act, prove the signing and sealing of the 
 memorial, and the execution of the deed or conveyance 
 mentioned in such memorial. 
 
 So it seems, that where a lease or any other deed is 
 from a corporation, who of course affix merely a seal 
 without any signature, the lessee is required to execute 
 the deed for the conveniency of registry(a:)(39]). 
 
 This practice is open to the observation just made ; for 
 it is clear, upon principle as well as authority(2/), that a 
 corporation affixing their seal is tantamount to a signing 
 and sealing by an individual. And it is to be observed, 
 that in this and the preceding cases it is indispensably 
 (*)requisite that one of the witnesses to the original exe- 
 cution of the instrument intended to be memorialized 
 should be a witness to the memorial. 
 
 It appears also, that the registrars are in the habit of re- 
 ceiving and registering certificates of writs of execution (2), 
 decrees or orders from the courts of equity, or rules of the 
 courts of law(«), office copies of wills(6), and certificates 
 of the discharge of judgments(c), none of which are 
 authorized to be registered, or can be legally received. 
 And it therefore seems clear, that the registry of such 
 instruments is wholly nugatory, so far as any priority or 
 
 (x) Rigge, 106, 107. (a) Id. 83, n. (h). 
 
 iy) Doe V. Hogg, 1 New Rep. 306. (6) Id. 96, n. (s). 
 
 {z) Rigge, Precedent, 35, p. 148. (c) Rigge, Precedent,87, n. 
 
 (391) See Jackson v. Walsh, 3 Johns. Rep. 228. See ako, Taft 
 V. Brewster, 9 Johns. Rep. 334. Colcock v. Garvey, 1 Nott & M'Cord, 
 231. Frankfort Bank v. Anderson, 3 Marsh. Ken. Rep. 1. Bank oj 
 Columbia v. Patterson^s Admr., 7 Cranch, 299, 305. 
 
 (*209)
 
 UJJREGISTERED DEEDS, &c. 211 
 
 effect is attempted to be given to them by force of 
 the act. 
 
 In regard to the contents of the memorial — the anxiety 
 of the Legislature not wantonly to compel the disclosure 
 of the concerns of individuals, induced them simply to 
 require that every memorial should contain, first, the day 
 of the month and year when the deed, fcc. bears date, 
 and the names and additions of all the parties to it, and 
 of the devisor or testatrix of a will, and of all the witnesses 
 to such deed, &.c. and the places of their abode ; and 
 secondly, the honors, manors, lands, tenements and here- 
 ditaments contained in such deed, &c. and the names of 
 the parishes, &;c. where any such estates lie that are com- 
 prised in or affected by such deed, &c. in such manner as 
 the same are expressed or mentioned in such deed, &c. oc 
 to the same effect(r/). A memorial, therefore, to the 
 following effect would fully comply with the requisitions 
 of the act : " A memorial to be enrolled pursuant to act 
 of parliament, of an indenture. It bears date the 14th 
 day of June 1806. It is made between A., of, &c. [here 
 insert the description], of the one part, and B., of, &c. 
 (*)[here insert the description], of the other part. It com- 
 prises all that manor, &c. [here insert the parcel ; the ge- 
 neral words need not be inserted, but, instead thereof, say, 
 " with their rights, members and appurtenances."] And 
 the said indenture, as to the execution thereof by the 
 said A. and B., is witnessed by C, of, &;c. [here insert his 
 description], and Z)., of, &,c. [here insert his description]. 
 And the said indenture is hereby required to be registered 
 by the said B., as witness his hand and seal this 14th day 
 of June 1806. Signed and sealed in the presence of C. 
 or D. [one of them must attest the memorial], and E., of, 
 &c." It. seems, however, advisable to go a step farther, 
 and to state to whom the estate is conveyed, as this, 
 
 (d) 7 Anne, c. 20, s. 6. 
 
 VOL. II. 31 (*210)
 
 nh0 OF PROTECTION FROM 
 
 where there are more than two parties, will facilitate 
 a search for incumbrances on the estate ; but no good 
 reason can be given why the parties should be put to ex- 
 pense by stating the instrument more fully. When a 
 purchaser discovers what deeds were executed, he will of 
 course require the production of them ; and so no mischief 
 can arise by a strict adherence to the letter of the act. 
 
 With respect to the parcels it is provided, that where 
 there are more writings than one for making or perfecting 
 any conveyance or security which concerns the same es- 
 tates, it shall be a sufficient memorial thereof, if all the 
 estates are only once named in the memorial of any one 
 of the deeds or writings, and the dates of the rest of the 
 deeds or writings, witli the names and additions of the 
 parties and witnesses, and the places of their abodes, are 
 only set down in the memorials of the same, with a refer- 
 ence to the deed or writing whereof the memorial is so 
 registered, that contains the parcels mentioned in all the 
 deeds, and directions how to find the registering of the 
 same(e). 
 
 This provision has been extended in practice. It is 
 (*)usual, for instance, in a memorial of an assignment of 
 a lease, to refer for the parcels to the prior registry of the 
 lease, although a separate and distinct transaction. This, 
 however, is very incorrect. The statute only au^ihorizes 
 such a reference where several writings are executed to 
 perfect the name conveyance or security. And where the 
 memorial does not comply Avith the directions of the act, 
 the person claiming under the deed defectively registered 
 cannot insist on the benefit of the statute against a subse- 
 quent purchaser without notice, whose conveyance is duly 
 registered. 
 
 II. We are to consider what deeds ought to be regis- 
 
 (e) 7 Anne, c. 20, s. 7. 
 (*211)
 
 UNREGISTERED DEEDS, &c. ^A^Z 
 
 lered. It is not easy to conceive thaft any doubt could 
 arise on this head ; but, nevertheless, two questions have 
 been agitated. 
 
 First, it has been contended, that a deed of appoint- 
 ment under a power need not be registered ; because 
 upon the execution of a power the interest limited by it 
 arises under the deed creating the power. But to this 
 it was answered, that the deed was within the mischief 
 intended to be guarded against by the act, as a purchaser 
 could not otherwise discover whether the power was ex- 
 ercised ; and it was accordingly decreed, that deeds of 
 appointment must be registered(y^. 
 
 The other question was, whether the non-registry of a 
 lease was cured by registering an assignment in which the 
 lease was recited ; and it was very properly decided, that 
 It was not(g)(392) ; for the intention of the Legislature 
 was, that the register should contain such information as 
 might enable purchasers to ascertain whether estates were 
 or were not subject to incumbrances ; for which purpose 
 it is necessary, that the register should contain a regular 
 (*)chain of title. If one link is broken, the object of the 
 Legislature is defeated. 
 
 In Warburton v. Loveland(/i), which depended upon 
 the Irish act, a new question arose. An unmarried 
 woman being possessed of land in Ireland for a long term 
 of years, and about to marry, assigned the term by a 
 deed, executed also by the intended husband, to trustees, 
 upon trust to permit the husband, after marriage, to re- 
 ceive the rents for life ; then the wife for life, then the 
 
 (/) Scraflon v. Quincey, 2 Tcs. 413. 
 (o-) Honeycomb v. Waldron, 2 Str. 1064. 
 
 (h) 2 Dow & Clark, 480- The observations of the Judges are so 
 important, that they are stated at some length. 
 
 (392) See Jackson v. JVcc/i/, 10 Johns. Rep. 376. Carrey's Les. v. 
 
 Caxton, i Binn. 140. 
 
 (•*212)
 
 OF PROTECTION FROM 
 
 244 
 
 first son of the marriage, if any, with remainder over. 
 The marriage took effect ; the husband entered into pos- 
 session, and received the rents and profits, and then made 
 a lease for years for part of the term, rendering rent ; the 
 lessees entered and received the rents and profits, and 
 then assigned the lease for a valuable consideration. 
 The marriage settlement was not registered ; the lease 
 by the husband was registered ; the assignment of the 
 lease was supposed not to have been registered. The 
 wife, surviving her husband, obtain edpossession of the 
 lands ; the assignees of the lease brought an ejectment 
 against her to recover the possession. 
 
 The questions were, 1st, which title is to be preferred, 
 that of the assignees of the lease, or of the uidow, or the 
 trustees under the settlement ? 
 
 2d. Supposing the assignment of the lease not to have 
 been registered, will the construction be the same ? 
 
 Upon the first of these questions, the Judges who were 
 summoned were of opinion that, regard being had to the 
 true construction of the Irish Register Act, the title of 
 the assignees of the lease, under the circumstances above 
 stated, is to be preferred to that of the widow, and also 
 to that of the trustees under the settlement ; and upon 
 the second question, they were of opinion, that, supposing 
 (*)the assignment of the lease not to have been register- 
 ed, the construction of the statute remained the same, and 
 the House of Loi-ds decided accordingly. In deliver- 
 ing the opinion of the Judges, Tindall, C. J., observed, 
 upon the facts of this case, Mr. Warburton, who granted 
 the lease of 1800, was at the time of granting it in 
 possession of the premises; and as the marriage settle- 
 ment of 1779 was never put upon the register, he must 
 have appeared to the public, and amongst the rest, to the 
 lessees taking under the lease of 1800, to be in posses- 
 sion of the premises either in his own right or in right 
 of his wife, in either of which cases he would have had 
 
 (*213)
 
 UNREGISTERED DEEDS, &c. 245 
 
 the undoubted right to grant a valid term by the lease of 
 1800, unless the unregistered settlement of 1779 stood 
 in the way. Now, it was not disputed on the part of the 
 plaintiff in error, that if Mr. Warburton had been the 
 party who conveyed the term by the unregistered settlement 
 of 1779, and had afterwards made the lease which was 
 registered, such lessees, being purchasers for a valuable 
 consideration, might have availed themselves of the fifth 
 section of the registry act, and that the prior settlement 
 €ou]d have been held fraudulent and void as against the 
 lease. Such a case was admitted to fall within the letter 
 as well as the spirit of the act. But it was contended 
 by the plaintiff in error, that the operation of the Irish 
 Registry Act extended no further, but was. confined to 
 cases in which both the earlier and the subsequent con- 
 veyances are the deeds of the same grantor ; and whether 
 such was the case, or, on the contrary, the act extended to 
 give a preference to the subsequent deed when registered 
 against the prior unregistered deed, notwithstanding the 
 same was executed by a former owner of the estate, was, 
 in substance, the question now proposed for considera- 
 tion. No case could be found either upon the English 
 registry acts or upon the Irish act, in which this precise 
 (*)question had been decided by a court of law. It must, 
 therefore, be determined upon principle, not upon autho- 
 rity ; and the only principle of decision that was applica- 
 ble to it, was the fair construction of the statute itself, 
 to be made out by a careful examination of the terms in 
 which it was framed, and by a reference in all cases 
 where a doubt arises to the object which the Legislature 
 had in view when the statute was passed. Where the 
 language of the act was clear and explicit, they must give 
 effect to it, whatever might be the consequences ; for in 
 that case the words of the statute spoke the intention of 
 the Legislature. If in any case a doubt arose upon the 
 words themselves, the Judges must endeavor to solve that
 
 246 
 
 OF PROTECTION FROM 
 
 doubt, by discovering the object which the Legislature 
 intended to accomplish by passing the act. After exam- 
 ining the provisions of the act, the learned Judge conclud- 
 ed that the statute meant to afford an effectual remedy 
 against the mischief arising to purchasers for a valuable 
 consideration, from the subsequent discovery of secret or 
 concealed conveyances, or secret or concealed charges 
 upon the estate. Now, it was obvious that no more 
 effectual remedy could be devised than by requiring that 
 every deed by which any interests in lands or tenements 
 was transferred, or any charge created thereon, should be 
 put upon the register under the peril, that if it was not 
 found thereon, the subsequent purchaser for a valuable 
 consideration, and without notice, should gain the priority 
 over the former conveyance by the earlier registration of 
 his subsequent deed. 
 
 The miscliief to the purchasers was the same whether 
 the secret conveyance or charge arose from the deed of 
 his immediate grantor, or that of a former owner of the 
 estate. If the words of the statute will comprehend 
 both, why was he to be protected against a secret deed 
 in the one case, and not in the other? What just ground 
 (*)of complaint could be urged against such a construction 
 by the grantee under the unregistered deed executed by 
 a former owner of the estate ? The deed, if it was a real 
 and a bona fide transaction, must have been, or ought to 
 have been, in his custody or power from the time of its 
 delivery. What cause could be assigned for its non- 
 appearance upon the register, except either collusion 
 with the grantor, or carelessness and neglect in himself, 
 or mere accident ? In neither case would he complain of 
 the construction of the statute by which his own fraud, 
 or his own w^ant of due caution, or an accident which 
 befel himself, was not allowed to operate to the prejudice 
 of the rights of the more diligent purchaser. Suppose 
 a ' man to settle his property upon his youngest son's 
 
 f^215)
 
 UNREGISTERED DEEDS, &c. 247 
 
 marriage, on himself for life, remainder to his eldest 
 son for life, remainder to the younger son, his wife and 
 children, in strict settlement ; remainder over in fee ; the 
 settlement is not registered, and the settler dies, his 
 eldest son enters, and supposing himself to have the fee 
 conveys to a purchaser for a valuable consideration, 
 shall it be allowed that the younger son, his widow or 
 his children, shall enter and evict the purchaser? Or 
 suppose a like settlement and a like concealment, and 
 the father devises all his lands in trust to sell, and to 
 apply the money to debts and portions, or other pur- 
 poses : after the estate is sold, and the money distributed, 
 can the construction of this act be such that the pur- 
 chaser shall be turned out by the claimants under this 
 settlement ? Or, in the particular case then before them, 
 where Mrs. Warburton before her marriage might have 
 registered the deed, and the trustees after the marriage 
 were bound in duty to do so if the settlement came to 
 their knowledge, could the proper construction of the 
 act allow Mrs. Warburton to avail herself of her own 
 carelessness or of the breach of duty of her trustees, by 
 (*)establishing her unregistered deed against a registered 
 lease made by her husband, upon no other ground than 
 that the settlement and the lease were not conveyances 
 by the same person ? If there was no provision in the 
 act to prevent this inconvenience, it must be submitted 
 to through necessity ; but if there were words in the 
 act capable of such an interpretation as would prevent 
 the inconvenience, they thought themselves bound upon 
 every consideration to give them such an effect. How 
 much more then where the words themselves and their 
 strict grammatical construction appeared to require such 
 a sense ? That in all the cases above supposed a great 
 injustice would be worked if the act supplied no remedy, 
 no one can deny ; to allow the act to authorize such 
 mischief, would not only be injustice, but would be 
 
 (*216)
 
 248 ^^ PROTECTION FROM 
 
 against law. The language of the act throughout, seemed 
 to establish this to have been its leading object, that as 
 far as deeds were concerned the register should give 
 complete information, and that any necessity of looking 
 further for deeds than into the register itself should be 
 superseded ; and it was manifest that no construction of 
 the act was so well calculated to carry into effect this 
 its avowed object as that which forced all transfers and 
 dispositions of every kind, and by whomsoever made, to 
 be put upon the face of the register so as to be open to 
 the inspection of all parties who might at any time claim 
 an interest therein. 
 
 It had been further argued that the effect of the 
 marriage settlement was to prevent the husband from 
 having any right to grant the lease of 1800 at the time 
 it was made, for that the wife's right was effectually 
 conveyed as between her husband and herself by the 
 deed of 1779; that she had no interest in her at the 
 time she married ; that she could therefore pass no in- 
 terest to her husband by the marriage ; that the husband 
 (*)consequently never had any right, and therefore could 
 convey none to the lessee. Now, it might be admitted 
 that as against the husband, who was party to the deed 
 of 1779, that deed was valid; it might be admitted also 
 that he could not of right exercise any power over the 
 property inconsistent with that deed ; but as by the non- 
 registration of that deed the grantees suffered him, as 
 to the world at large, to have the appearance of right, 
 neither they, nor any claiming under them, were at 
 liberty to set up the deed in opposition to the persons 
 who had been deluded by the appearance of right in 
 the husband. This argument, therefore, which would be 
 good against the husband himself, could not be heard 
 from the parties claiming under the settlement against 
 his grantee for a valuable consideration. 
 
 (*217) 
 
 ^
 
 UNREGISTERED DEEDS, &c. 249 
 
 III. We come to the exceptions in the acts. 
 The first exception is of copjiiold estates. This ex- 
 ception is general ; and it may be thought that no deed 
 relating to a copyhold estate need be registered. No 
 effectual lien can be created on the land without its ap- 
 pearing on the court-rolls. A lease, indeed, once created 
 by license is a common-law interest, and may be assigned 
 ' without the assignment appearing in the court books ; 
 but this is a very inconsiderable mischief, as the license 
 must appear on the court-rolls. Indeed, in some few 
 manors, copyhold tenants may lease without license, and 
 ; this is a good custom. But still in all cases, although 
 ' the interest granted by the lease is a common-law interest, 
 yet the estate remains copyhold, and appears to be within 
 the exception in the act. However, it is certainly ad- 
 visable to register such leases of copyhold estates as, if 
 the estate were freehold, would require registry. 
 
 (*)The next exception is of leases at rack-rent. It fre- 
 quently happens, that a lease originally at rack-rent be- 
 comes of some value in the course of a few years. When 
 the lease is sold for a valuable consideration, the question 
 arises, whether it continues within the exception, or ought 
 to be registered (?'). On the one side it may be urged, 
 that the property being valuable, the lease is within the 
 spirit of the statutes, as a purchaser of it might otherwise 
 be defeated by a prior secret assignment. But, on the 
 other hand, it may be said, that the next exception shows 
 the Legislature did not intend every species of property 
 to be subject to the acts, although it may be a saleable 
 interest. And it may be insisted, that the lease, at the 
 time it was granted, having been within the exception, 
 cannot be effected by any matter ex post facto, for then 
 one day -it may be within the exception, and another it 
 may be subject to the directions of the act, just as the 
 
 (t) See Rigge, 88, n. (n). 
 VOL. Ti. 32 (*218)
 
 2 en OF PROTECTION FROM 
 
 property may rise or fall in value. Perhaps, therefore, 
 the better opinion is, that a lease priginally at rack-rent, 
 and within the exception in the acts, continues so during 
 the term, although it may become a valuable and saleable 
 interest. 
 
 The next exception is of leases not exceeding twenty- 
 one years, where the actual possession and occupation go 
 alonff with the lease. And it has been said, that wiiere 
 such a lease becomes assigned for a valuable considera- 
 tion, its registry ought always to be recommended, and 
 particularly when such assignment is by way of mortgage, 
 for then it is clearly out of the exemption, the possession 
 and occupation (mentioned conjunctively) being di- 
 vided(y). The latter part of this observation is correct; 
 and it is always usual in practice to require a beneficial 
 (*)lease, not exceeding twenty-one years, to be registered 
 where it is assigned by way of mortgage. And, indeed, 
 the acts seem cautiously worded, so as not to exempt the 
 lease in that event. But it is impossible to contend, that 
 the assignment of the lease for a valuable consideration 
 can take it out of the exception. It still remains clearly 
 within, as well the spirit as the words of the exception. 
 While the possession and occupation go along with the 
 lease no one can be deceived, and the lease still continues 
 " a lease not exceeding twenty-one years, where the pos- 
 session and occupation go along with the lease." 
 
 The last exception requiring notice is of the ciiambers 
 in Serjeants Inn, which is certainly within the city ; and 
 it therefore seems to have been doubted, whether the 
 Legislature did not intend the act of 7 Anne to include in 
 its operation the whole metropolis, except the borough of 
 Southwark(A;). But there is not the least ground for this 
 doubt. It is not surprising that the mistake should have 
 been made, and it is impossible to nrgue, that such an 
 
 U) lb. 88, n. (o). {Ic) Rigge, SS, n. (p). 
 
 (*219)
 
 UNREGISTERED D£EDS, &c. oti 
 
 error shall make an act passed relating to lands " in the 
 county of Middlesex," upon the petition of the "justices 
 of the peace, and grand jury of the county of Middlesex," 
 extend to the city of London. This construction would 
 invalidate some thousands of leases, as the general opin- 
 ion of the Profession is, that the act does not extend to 
 the city. 
 
 IV. The fourth division of this subject remains to be 
 discussed. The questions on this head are simply three, 
 viz. 
 
 First, Whether a person having the legal estate, as a 
 mortgagee, and advancing more money without notice of 
 a second mortgage duly registered, shall hold against the 
 second mortgage till he is satisfied all the money he 
 (*)has advanced ? And it hath been adjudged that he 
 shall(/)(I)(394). 
 
 The decision was made upon this ground : that though 
 the statute avoids deeds not registered, as against pur- 
 chasers, yet it gives no greater efficacy to deeds that are 
 registered than they had before ; and the constant rule of 
 equity is, that if a first mortgagee lends a further sum of 
 money without notice of the second mortgage, his whole 
 
 (i) Bedford r. Backhouse, 2 Eq. Ca. Abr. 615, |>I. 12; 2 Kel. in 
 (.'ha. 5 ; Wrightson r. Hudson, 2 Eq. Ca. Abr. 609, pi. 7. 
 
 (I) Lord Redesdale has determined differently on the Irish register- 
 ing act, because the act declares that every deed shall be effectual 
 according to the priorilu of (he lime of registry. There appears to have 
 been cout-iderable dilliculty in the way of this decision. Bushell v. 
 Bushel!, Latouche r. Lord Dunsany, 1 Scho. & Lef. 90. 137. 
 
 (394) See Berry v. J[Iutuallns. Co. 2 Johns. Ch. Rep. 603. John- 
 son v. Stagg, 2 Johns. Rep. 510. Evans v. Jones, 1 Yeates, 174.; 
 and see Shirras v. Caig, 7 Cranch, 34, 50. Colquhoun v. Atkinsons, 6 
 Munf. 650. ^ Huges v. Worley, 1 Bibb, 290. Hendricks v. Robinson, 
 2 Johns Ch. Rep. 309. Brinkerlwffv. »'\/arf m, 6 Johns. Ch. Rep. 
 326. Jarvis v. Rogers, 15 Mass. Rep. 389, 397. James v. John- 
 son, 6 JoJins. Ch. Rep. 428. ct scq. 
 
 (^220)
 
 252 
 
 OF PROTECTION FROM 
 
 money shall be paid in the first place. By the establish- 
 ment of the register, the second mortgagee has the best 
 possible means of discovering whether the estate is in- 
 cumbered, and who the incumbrancer is ; and if he has 
 not searched the register, or, having searched the regis- 
 ter, has neglected, in. compliance with the .general rule 
 of equity to give the prior incumbrancer notice of the 
 second mortgage, he is not considered a proper object for 
 the extraordinary protection of a court of equity ; for 
 even the rule of law is vigilantibus non dormientibus ser- 
 vat lex. 
 
 This principle extends to a mortgagor paying off mort- 
 gage-money to a mortgagee, without notice of his hav- 
 ing transferred the mortgage, which is a valid payment, 
 although the transfer of the mortgage is duly register- 
 ed(m)(395). 
 
 And it is conceived, that the rule would apply to a 
 mortgagee lending a further sum of money to the mortga- 
 gor, without notice of the sale of the equity of redemption ; 
 and therefore a purchaser of an equity of redemption 
 (*)of an estate should, immediately after the sale, give no- 
 tice of it to the mortgagee, although the estate is in a re- 
 gister county, and his conveyance is duly registered. In- 
 deed a purchase of an equity of redemption should never 
 be completed without the concurrence of the mortgagee, 
 for if the mortgagee have another mortgage made to him 
 by the seller, although of a distinct estate for a distinct 
 debt, yet the purchaser of one estate cannot redeem one 
 mortgage w^ithout redeeming the other(/i)(396). 
 
 And here it may be remarked, that an assignment 
 should not in any case be taken of a mortgage vt'ithout 
 
 (m) Williams v. Sorrell, 4 Ves. jun. 389. 
 {n) Ireson v. Denn, 2 Cox, 425. 
 
 (395) See James v. Johnson, 6 Johns. Ch. Rep. 417. 
 
 (396) See Phdps v. Ellsivorth, 3 Day, 397, 401. 
 (*221)
 
 UNREGISTERED DEEDS, &c. 253 
 
 the privity of the mortgagor as to the sum really due ; 
 for although it undoubtedly is not necessary to give 
 notice to the mortgagor that the mortgage has been as- 
 signed(o), yet the assignee takes subject to the account 
 between the mortgagor and mortgagee, although no 
 receipt be endorsed on the mortgage-deed for any part 
 of the mortgage-money which has been actually paid 
 off(p)(397). 
 
 The second question is, Whether a person purchasing 
 without notice, and obtaining the legal estate, shall be 
 prejudiced by a prior equitable incumbrance, which was 
 duly registered previously to his purchase ? It was de- 
 cided by Lord Camden, in the case of Morecock v. 
 Dickens(9'), that he shall not(398) ; and Lord Redesdale 
 has expressed his opinion to be, that the registry of an 
 equitable incumbrance is not notice to any subsequeiit pur- 
 chaser. His Lordship admitted, that if a man searches 
 the register, he will be deemed to have notice, and that 
 no person thinks of purchasing an estate without search- 
 ing the registry ; but he thought it could not be consi- 
 dered (*)as notice to all intents, on account of the mis^chiefs 
 that would arise from such a decision. For if it is taken 
 as constructive notice, it must be taken as notice of every 
 thing that is contained in the memorial : if the memorial 
 contains a recital of another instrument, it is notice of that 
 instrument ; if a fact, it is notice of that fact(r). So, if 
 it be notice, it must be notice whether the deed be duly 
 
 (o) See 9 Ves. jun. 410. 
 
 (p) Matthews v. Wallvvyn, 4 Ves. jun. 118. See 9 Ves. jun. 264. 
 (g) Ambl. 678. 
 
 (r) Bushell v. Bushell, 1 Scho. & Lef. 103 ; and see Pentland v. 
 Stokes,^ 2 Ball & Beatty, 68. 
 
 (397) See Clule v. Robison, on appeal, 2 Johns. Rep. 595, 612. 
 
 (398) See Parkisl v. .^lexauder, 1 Johns. Ch. Rep. 398, 399, 400. 
 
 (*222)
 
 254 ^^ PROTECTION FROM 
 
 registered or not ; it may be unduly registered, and if it 
 be SO, the act does not give it a preference ; and thus tlus 
 construction would avoid all the provisions in the act for 
 complying with its requisites(5)(399). 
 
 The third and last question is, Whether a person buy- 
 ing an estate with notice of a prior incumbrance not 
 registered shall in equity be bound by such incumbrance, 
 although he hath at law obtained a priority by regis- 
 tering his deed ? And it hath been holden that he 
 shall(0(400). 
 
 This decision is consistent with the general principles 
 of equity. The intention of the act was to secure sub- 
 sequent purchasers and mortgagees against prior secret 
 conveyances and fraudulent incumbrances ; and, therefore, 
 
 (s) Latouche v. Lord Dunsany, 1 Scho. & Lef. 157 ; and see Un- 
 derwood V. Lord Courtown, 2 Scho, & Lef. 64. 
 
 (/) Lord Forbes v. Deniston, 4 Bro. P. C. 189 ; 2 Eq. Ca. Abr. 
 482, pi. 19; 3 Atk. 653, cited ; Chi vail v. NichoUs, Str. 664 ; Beat- 
 nifl'r. Smith, 1 Eq. Ca. Abr. 357, pi. 11 ; Blades v. Blades, 1 Eq. Ca. 
 Abr. 358, pi. 12 ; Hine v. Dodd, 2 Atk. 275 ; Le Neve v. he Neve, 3 
 Atk. 646 ; Sheldon v. Cox, Anibl. 624 ; and Jolland v. Stainbridge, 3 
 Yes. jun. 478; and see Cowp. 712; 1 Burr. 474 ^ 1 Scho. & Lef. 
 Rep. 102 ; Biddulph v. St. John, 2 Scho. & Lef. 521 ; Eyre v. Dol- 
 phin, 2 Ball & Beat. 290. 
 
 (399) See Heister^s Les. v. Foriney, 2 Binn. 40, 44. Hodgson v. 
 Bulls, 3 Cranch, 165. Shnon^s Les. v. Brown, 3 Yeates, 187. 
 Moore's Exr. v. The Auditor, 3 Hen. & Munf. 232. Frost v. Beck- 
 man, 1 Johns. Rep. 288,* 300. 
 
 (400) See Berrij v. Mutual Ins. Co., 2 Johns. Ch. Rep. 603, 607, 
 et seq. Jackson v. Sharp, 9 Johns. Rep. 162, 168. Jackson v. Burgotl, 
 10 Johns. Rep. 457, 460, et seq. Lambert v. JVancy, 2 Munf. 196. 
 Blair \. Owles, 1 Munf. 38. Hoover v. Donalhj, 3 Hen. & Munf. 316. 
 Roberts v. Staunton, 2 Munf. 129, 136. Farnsworth v. Childs, 4 
 Mass. Rep. 637, 639. Marshall v. Fisk, 6 Mass. Rep. 24, 30. 
 Stroud V. Lockart, 4 Dall. 153. Henry's Les. v. Morgan, 2 Binn. 
 497, 501. Dey v. Dunham, 2 Johns. Ch. Rep. 182. S. C. on aooeal, 
 15 Johns. Rep. 556.
 
 UNREGISTERED DEEDS, &r. 255 
 
 where a person has notice of a prior conveyance, it is not 
 a secret conveyance by which he can be prejudiced ; for 
 he can be in no danger where he knows of another in- 
 cumbrance ; (*)because he might then have stopped his 
 liand from proceeding, and therefore is not a person whom 
 the statutes meant to veYw.xe(ii) (4>Ql). But of course 
 notice of a prior unregistered instrument is unimportant 
 at law. The first registered instrument must prevail at 
 law(a-)(402). 
 
 It will occur to the learned reader, that although the 
 prior purchaser would, in a case of this nature, be re- 
 lieved against the subsequent sale, yet tiie legal estate 
 will be vested in the subsequent purchaser by force of 
 the statute. 
 
 From the foregoing decisions, it is evident that a pur- 
 chaser may be bound by a judgment(?/) or a deed, 
 although not registered ; but it is equally clear, that it 
 must be satisfactorily proved that the person who registers 
 the subsequent deed must have known exactly the situa- 
 tions of the persons having the prior deed ; and knowing 
 that registered, in order to defraud them of that title he 
 knew at the time was in them(2)(403). Apparent fraud, 
 
 («) Le Neve, 3 Atk. 64C. 
 
 (x) Tunstall V. Trappes, 3 Sim. 301. 
 
 {y) Doe V. Allsop, 5 Barn. ik. Aid. 142. 
 
 (2) See 3 Yes. jun. 485. 
 
 (401) See Frost v. Beekman, 1 Johns. Ch. Rep. 288, 301. 
 
 (402) Roberts v. Stanton, 2 Munf. 129. Jackson v. Burgotl, 'iO 
 Johns. Rep. 457, 462. Jackson v. Hubbard, 1 Caines' Rep. 82. 
 Jackson V. Given, S Johns. Rep. 105, 2d edit. 
 
 (403) See JS^orcross v. Widgenj, 2 Mass. Rep. 506. 
 
 " A person who takes a conveyance of land, with the knowledge that 
 the grantor had previously conveyed it to another, cannot hold it against 
 the first purchaser, even though the first conveyance is not recorded. 
 It would l;e fi-audulent in him to attempt thus to deprive the purchaser 
 of the fruits of his contract. If the grantor can be considered as hav- 
 ing any title or estate after the first conveyance, it is merely the legal 
 
 (*223)
 
 256 ^^ PROTECTION FROM 
 
 or clear and undoubted notice, would be a proper ground 
 of relief; but suspicion of notice, though a strong suspi- 
 
 estate, which he holds in trust for the first purchaser ; and the second 
 purchasing with knowledge of the trust, shall hold subject to (he same 
 trust. But if the second purchaser procures his deed to be recorded be- 
 fore the other, and then sells the land honn fide, and for a valuable consid- 
 eration, to a person wholly ignorant of those circumstances, the latter will 
 hold the land against the first purchaser. If this were not so, our laws, 
 which require the registering of deeds, would be useless, if not worse : 
 because a purchaser, after the most thorough examination in the registry 
 of deeds, and finding a succession of conveyances, all in legal form 
 and in perfect order, might still be evicted upon proof of a secret trust, 
 or a fraud, on the part of some former owner. Per Jackson, J. in 
 The State of Connecticut v. Bradish, 14 Mass. R. 296, where the de- 
 mandants sued a writ of entry su? disseizin ; and gave in evidence a 
 mortgage dated Feb. 1802, and which was duly recorded ; and also 
 another mortgage, executed in 1S07 to secure the same debt ; but not 
 recorded until 1808. It appeared (hat Thurber, who executed the last 
 mortgage, subsequently executed a mortgage to the Dwights ; and this 
 last mortgage was executed and recorded before the recording of the 
 previous mortgage. Seven days after the Dwights assigned their 
 mortgage to the defendant ; and which was afterwards recorded. It 
 appeared that the Dwights knew of the previous mortgage when they 
 received their deed. The jury were instructed accordingly that the 
 demandants were entitled to a verdict ; for the tenant was in no better 
 condition than the Dwights. The Court granted a new trial ; and 
 Jackson, J. observed — " if the money expressed in the notes is due and 
 payable to Bradish by virtue of the assignment, the question, whether he 
 shall hold the land as security for that money, must be decided like any 
 other question, relating to the same land. Walley v. Walley & al. in 1 
 Vern. 484, was cited in the argument and is cited by Powell on Mort- 
 gages, as showing that the assignee of a mortgage will be affected by 
 notice to the assignor, of an outstanding title to the land mortgaged, 
 and will take subject to that title. — The case furnishes no authority to 
 that point. The assignee there had actual notice. If from legal evi- 
 dence the jury should find that Bradish did know the fact of the pre- 
 vious mortgage, his title would be void as against the demandants : 
 or rather his mortgage would be postponed to theirs. But we certain- 
 ly cannot say that he shall be presumed from the circumstance that 
 the demandant's deed was registered before the assignment to Bradish, 
 although after the conveyance to the Dwights, to know of the prior 
 conveyance. When a purchaser is examining his title in the registry
 
 UNREGISTERED DEEDS, &c. 257 
 
 cion, is not sufficient to justify the Court in breaking in 
 
 of deeds, and finds a good conveyance to his grantor, he is not expect- 
 ed to look further, Bradish it is true had only to look to the registry 
 for the next day, and perhaps only to the next page, to discover this 
 prior conveyance to the demandants. But he is not required to look 
 one day or one page beyond. 
 
 The case of Trull r. Bigclow, 16 Mass. 406, where, although the de- 
 mandant when he took his deed from Judd, knew that Judd's grantor, 
 Caldwell, had knowledge of the conveyance to Bosworth ; which preced- 
 ed his in point of time : and the question was, whether the knowledge of 
 this fact alone would defeat the estate in his hands, which was valid in 
 the hands of Judd 1 " Had the demandant with the knowledge of the 
 facts, purchased directly of Caldwell, he would have taken nothing by 
 his deed. But the estate was in Judd indefeasible, except by his own 
 act : Bosworth had lost all right by omitting to register his deed. The 
 demandant knows the title was once defective, in one of the persons 
 under whom he claims ; but he also knows that the defect was cured, 
 and the stain upon the title effaced. He is a bonajide purchaser of 
 him who had an unimpeachable title ; and he must have judgment." 
 
 There is not a single case, at law or equity, where a bona Jidt pur- 
 chaser has been deprived of his title by the proof of fraud practfsed by 
 his grantor upon the person of whom he purchased ; unless it be 1 
 Conn. R. 527. Per Parker, C. J. in Somes r. Brewer, 2 Pick. R. 
 184. The demandant in this case made an assignment of a mortgage 
 to one Skinner, who entered into possession ; and subsequently as- 
 signed the mortgaged estate to the defendant. Somes also conveyed 
 another tract of land to Skinner. But the ground upon which the de- 
 mandant rested his argument was, that the deeds from Somes to Skin- 
 ner were absolutehj void. The Chief Justice observed. Upon the 
 most careful examination of the cases cited by the demandant's coun- 
 sel, I do not perceive, that, in any instance, a deed of a party compe- 
 tent to contract has been deemed void or a nullity on account of its be- 
 ing obtained by the fraud or imposition of the grantee. Such a deed 
 passes the estate, and is only voidable by showing under a special plea 
 the circumstances which go to defeat it. In the only case to be found 
 in our own reports, in relation to the effect of fi-aud upon deeds, (Bliss 
 V. Thompson, 4 Mass. 492), Chief Justice Parsons, with his usual ac- 
 curacy and precision, says, *' It is generally true that a man shall not 
 be received to aver against his own deed. But the case of fraud is 
 always an exception, which vitiates every transaction ; and a deed ob- 
 tained by fraud is to be considered as a void contract as to the fraud- 
 ulent party." This has always been understood to be the law in re- 
 voL. II. 33
 
 258 
 
 OF PROTECTION FROM 
 
 gard to fraudulent conveyances, both of real and personal estate, viz. 
 that deeds made to defraud or delay creditors, are void as against such 
 creditors ; but are nevertheless good between the grantor and grantee 
 and persons claiming under them, other than creditors, and will sup- 
 port a title in a purchaser of such fraudulent grantee, for valuable con- 
 sideration, without notice. The case of Preston v. Crofat, (1 Conn. R. 
 627, note), in which the absolute nullity of deeds fraudulent against 
 creditors, evea as against a bona fide purchaser from the fraudulent 
 grantee, without notice, is maintained by a majority of the judges ; and 
 their opinion is approved and sanctioned by Mr. Chancellor Kent. 
 Still as their decision runs counter to all our practical notions and to 
 many judicial decisions in this state ; as it was combated with great 
 force by a very eminent member of the Connecticut bench ; and as 
 the decree of the Chancellor of New-York was reversed in the Court 
 of Errors; we cannot think it will be adopted beyond the jurisdiction 
 of Connecticut. The point was settled before Parsons, C. J. in the 
 case of Sutton v. Lord, 1 Dane's Abr. 631. Pothier, in his treatise on 
 obligations, says, " when a party has been drawn into a contract by 
 the fraud of another, the contract is not absolutely and essentially null 
 because a consent, although obtained by surprise, is nevertheless a 
 conser<> ; but the contract is vicious, and the party who has been sur- 
 prised, may cause it to be rescinded, because it is against the good faith 
 which ought to regulate contracts." Poth. on Oblig. Pt. 1. c. 1, s. 1, 
 art. 3, no. 29. 
 
 Broion on Sales, 396, states the Scotch law to be the same in regard 
 to fraud ; " and although in a question between the vendor and (he 
 vendee, such a contract may be set aside, and restitution given on the 
 head of fraud, yet, until the contract is so set aside, the vendee, having 
 the property of the subject vested in him by delivery, upon a habile 
 (defeasible) title, is able to transfer the property to another ; and there- 
 fore a second sale, made by him to a bona fide purchaser, will be effect- 
 ual, and his fraud cannot be made the title of such a purchaser." 
 " The grand^istinction taken, is between the case of a sale by consent 
 of the vendor, though unlawfully obtained, and an apparent sale by 
 means of violence, such as theft or forgery, in which case there is no 
 consent of any kind ; and it is held, that a sale resulting from the act 
 and consent of the vendor conveys a title, which is defeasible only 
 while the thing remains in the hands of the vendee. And the learned 
 Chief Justice added, " The English law is undoubtedly the same, 
 though as such cases are generally disposed of in Chancery, there are 
 not many decisions to be found in the reports of the common law." 
 He cites Parker v. Patrick, 6 Term 175. Baron Gilbert's History and 
 Practice of the High Court of Chancery, p. 287.
 
 UNREGISTERED DEEDS, &c. 259 
 
 Marshall, C. J. in Fletcher v. Peck, 6 Cranch, 133, is to the same 
 point. 
 
 " The case of a forged deed set up as the basis of a title, or the 
 deed of an unlettered person to whom it was not read, or was read wrong 
 by fraud, may be different in principle from the case we have been con- 
 sidering, (Homes V. Brewer, supra.) the law perhaps deeming acts like 
 these as having no effect at all upon the rights of the parties. But 
 
 ■ the man who voluntarily signs and seals a deed knowing its contents, 
 'i though cheated into the act, may choose, nevertheless, to let the deed 
 
 stand ; and if he does until an honest purchaser contiding in his act, 
 and who is never apprized by him of any defect, pays his price and en- 
 ters into possession, all the principles of justice forbid him from avoid- 
 
 ■ ing the title." (Parker, C.J. 2 Pick. p. 204.) 
 
 ,i) In xinderson v. Roberts, 14 Johns. 515, the Court thinks the case 
 ; in Connecticut was decided on the peculiar structure of the statute 
 in that state. He observed, p. 522, " I must be understood, as quali- 
 fying the right of the purchaser from the fraudulent vendee : it must be 
 prior, in point of time, to a sale for a valuable consideration, by the 
 fraudulent grantor ; and it must, also, be prior to a sale on execution, 
 at the suit of the creditor." Although, in Jackson v. Tracy, the sale 
 under the judgment was prior to the deed from the fraudulent grantee, 
 yet, in that case, the registry of the latter deed first took place, and 
 the transaction happened in a county where deeds are required to be 
 registered. 
 
 Where a creditor on the 18th December, 1820, made an attachment, 
 he then knowing that a conveyance had been made on the 11th of the 
 same month : it was held, thiU the effect is the same, under the con- 
 struction which has be«n given to the statute, in relation to such credi- 
 tor, as it would be in relation to a second purchaser under like circum- 
 stances. " Nothing was wanting to make good the title under the 
 conveyance against all the world, but public notice of the very fact of 
 which he had personal knowledge." Priest v. Rice, 1 Pick. 164. S. 
 P. 4 Mass. 641 ; 6 ib. 487 ; 10 ib. 60 ; 11 ib. 158. 
 
 But to determine what notice is sufficient of a prior registry is more 
 difficult. Generally an open possession of the first purchaser will 
 raise a legal presumption of notice. The notice of an unregistered 
 deed, must be a necessary inference from facts proved. M'Mechan 
 V. Grifling, 3 ib. 149. 
 
 The same principle does not apply in (he case of a prior attachment 
 as in the case of a prior unrecorded deed ; for " all creditors who are 
 in pursuit of satisfaction of their debts by means of attachment, are 
 considered as running a race on equal ground, and each is entitled to 
 take advantage of defects in the proceedings of the others." Cushing
 
 2gQ OF PROTEC riOxN FROM 
 
 upon an act of parlianient(«)(404). A lis pendens is not 
 deemed notice for that pnrpose(6)(405). 
 
 I have brought to a conclusion the observations which 
 I proposed to offer on the registering acts. If I might be 
 allowed to express a general opinion on the provisions in 
 these acts, explained as they are by the decided cases, 
 1 should be tempted to observe that they might be im- 
 
 (o) See 2 Atk. 276 ; and Irons v. Kidwell, 1 Yes. 69, cited . Wyat 
 V. Burwell, 19 Ves. jun. 435. 
 (h) 19 Ves. jun. 439. 
 
 I 
 
 V. Hurd, 4 Pick. 253 ; 5 M'Gregoi v. Brown, 170. The doctrine of 
 constructive notice is denied by Lord Redesdale in Bushell v. Bushel!, 
 1 Scho. & Lef. 90, but his decision rests on the construction of the 
 Irish registry acts, which differ from those of England, and from ours. 
 He denies that searching the records is conclusive notice. But in 
 Shaw V. Poor, 6 Pick. 86, where a deed executed by two was acknow- 
 ledged only by one, the registry was held to be sufficient : and it makes 
 no difference in this respect whether the grantors were seised as tenants 
 in common of the whole land conveyed, or are separately seised of dis- 
 tinct parts. The case of Heister v. Fortner, 2 Binn. 40, was different ; 
 the question there arose on a deed which had not been regularly re- 
 corded ; the publicity required by statute had not been given ; and no 
 one was bound to take notice of a deed defectively proved, and not 
 regularly registered. 
 
 A bond and deed executed separately but amounting to a mortgage, 
 the recording the mortgage alone, may be sufficient, if the purchaser or 
 creditor knows it to be a mortgage. " By the record the title was in 
 the judgment debtor ; the bond was in the pocket of the grantor : the 
 knowledge that a bond was given by the grantee to the grantor, without 
 any knowledge of its effect, would be no proof of fraud in a subse- 
 quent purchaser or attaching creditor." To be effectual notice, it must 
 be known to constitute a mortgage, Newhallr. Burt, et al 7 Pick. 157. 
 
 (404) See Detj v. Dunham, 2 Johns. Ch. Rep. 182, 190. S. C. on 
 appeal, 15 Johns. Rep. 655. Taylor v. Heriot, 4 Des. 227, 238, 239. 
 
 (405) As to the question whether a lis pendfiis, in chancery, shall be 
 deemed notice to a subsequent purchaser, or not, see J\Iurray v. Bal- 
 lon, 1 .Johns. Ch. Rep. 566. Murray v. Lylburn, 2 Johns. Ch. Rep. 
 441. .Murray v. Finsler, 2 Johns. Ch. Rep. 166, 158. Green v. 
 Slaijter, 4 Johns. Ch. Rep. 38.
 
 UNREGISTERED DEEDS, &c. 261 
 
 proved. 1 approve rather of the act for Ireland, though 
 not to the extent to which it has been carried by the 
 (*)decisions of Lord Redesdale. I would by no means 
 give an equitable charge the etfect of a legal conveyance 
 by the mere act of registry ; at the same time that I would 
 insure the priority of the charge as an equitable charge, 
 by making the registry of an instrument notice to all 
 subsequent [nirchasers. The rule, that notice of an un- 
 registered incumbrance shall affect the conscience of a 
 subsequent purchaser, I would not disturb, contemplating 
 the present temper of the Courts to confine this doctrine 
 to cases of clear notice. 
 
 V. 1 cannot now dismiss this subject without offering 
 a few cursory observations on the bill which the House 
 of Commons rejected for establishing a general register, 
 as fresh attempts will no doubt be made to carry that 
 measure. 1 may premise, that if such a bill passes, it 
 will form an addition to this work, but will not call for 
 any alteration of the law in the text, inasmuch as its 
 provisions will be prospective, and will leave titles in 
 register counties to depend for the time past upon the 
 law as it now stands. 
 
 ft should be borne in mind, that the establishment of 
 a register upon the best plan that could be devised, 
 would not refieve the present titles. To preserve 
 them, the present legal estates must be retained and 
 the present registers resorted to. Some rules should be 
 introduced to relieve titles as they now stand : — 1. the 
 representation to terms of years should be facilitated ; 
 2. the liens acquired by judgments, &c. should be regu- 
 lated or removed as against bona fide purchasers ; for 
 example, it might be required, in order to bind a pur- 
 chaser, that the description of the person against whom 
 a judgment is to operate should be entered up : 3. the law 
 of priorities as between mortgagees should be altered ; 
 4. the doctrine of notice should be restrained ; and, 
 
 (*224)
 
 262 
 
 OF PROTECTION FROM 
 
 lastly, all the present registers, including judgments, he. 
 (*)should be revised and rendered accessible and useful. 
 Such alterations would assist titles as they now stand, 
 and future purchasers under them. A new register would 
 not operate beneficially on titles 'for many years to come. 
 There is therefore no hurry. And a general measure 
 should follow, and not precede or include the proposed 
 alterations. The present expense in regard to titles is, 
 in forty-nine cases out of fifty, suj)erfluous ; but as every 
 one may be in danger, all are guarded against it. This 
 precaution has very much increased within the last thirty 
 years, but not from any increased danger. 
 
 The present registers have led to much litigation, and 
 have occasioned great expense. In one case, in Ireland, 
 the costs of a search wexe enormous ; in several instances 
 in both countries they amounted to 40/. or 50/. The 
 officers themselves admit that even their searches were 
 frequently insufficient, and that they missed registered 
 documents. Probably not one-twentieth part of the 
 searches is effectual, or could be safely relied upon. 
 Great numbers of instruments have been registered in a 
 manner directly contrary to the provisions of the acts, and 
 therefore ineffectually in law. The slightest mistake iwdy 
 be fatal. If a man's name be Crompton, and it is written 
 Compton in the register, he would lose his estate in a 
 competition with another, although later claimant, in 
 whose registry there was no error. 
 
 The proposed system is a complicated one. It is often 
 almost impossible to ascertain, after a deliberate consid- 
 eration of the deeds, under which of several titles an 
 estate is held ; and a mistake in that particular, or a fraud 
 committed by the seller or mortgagor, would defeat the 
 title. Great difficulty will arise from the necessity of 
 opening new titles with new symbols, connected with the 
 old ones. No one will take the trouble to make these 
 (*)what they should be, with a view to future purchasers. 
 
 (*225) (*226)
 
 UNREGISTERED DEEDS, &c. 263 
 
 Every one will content himself with such an entry as he 
 thinks will secure his own title. The officers cannot he 
 depended upon. The trouble will be immediate, and the 
 danger altogether remote and problematical. 
 
 The index merely refers to the deed ; so that recourse 
 must always be had to a copy of the deed, particularly 
 for the parcels. In how many cases, from lassitude 
 or want of ability, will the search be improperly con- 
 ducted ? After some lapse of time, it will require con- 
 siderable legal ability to make a perfect search ; and by 
 and by, every man must resort to the registry for copies of 
 his deeds. The system of symbols cannot be carried 
 throughout : therefore there must be two systems and 
 many indexes, at least four. 
 
 1. General documents, which may be mixed up with 
 other classes and other symbols. 
 
 2. Wills, alphabetically. 
 
 3. Commissions of bankrupt, alphabetically. 
 
 4. Judgments and Crown debts, in the same manner. 
 And all the deeds must be referred to and read. The 
 purchaser will be answerable for a registry under the 
 proper symbol ; and if he make.a mistake in the root of 
 his title, or be deceived in it, he will lose his estate. 
 Should a purchaser be exposed to such a hazard ? Great 
 knowledge and care are requisite in the officers, and that 
 in all times cannot be dej)ended upon. The term sym- 
 bol has been withdrawn, but the system has not been al- 
 tered. 
 
 The greater number of frauds is committed in the sale 
 to different persons of a reversionary interest in stock, 
 but no provision is made for registering instruments 
 affecting such property. 
 
 Disclosure is now considered as highly desirable ; but 
 in the early consideration of the subject the Report 
 (*)itself suggested a mode of avoiding a disclosure by 
 vesting the estate in a trustee as owner, and taking a 
 
 (*227)
 
 264 ^'^ PROTECTION FROM 
 
 separate deed of trust from him not registered. And the 
 Report said, that in many cases, such as that of an ap- 
 pointment of a reversionary interest, or of portions in 
 favor of children, the registration might be safely de- 
 layed ; so that secret trusts were to be resorted to, and 
 one title appear on the register, and another off it. If 
 appointments should be withheld from the register, a man 
 might biiy a child's portion, as in default of appointment, 
 or the estate as not charged with portions, although the 
 child's interest might have been varied or defeated, or the 
 estate burthened with heavy portions. The register would 
 not be a safe guide. 
 
 In order to render the register effectual, it was in the 
 first instance proposed, that the operation of general 
 words in the parcels should be cut down ; but this was 
 a violent method of giving an effect to the registry, which 
 would not have been endured. Alterations in these 
 respects have been made, to remove the objections to the 
 system, but they are inherent in it. 
 
 The expense to which a register may lead, is proved 
 by the evidence of Messrs. Wimburn and Collett, who sent 
 a clerk down to York ta search the register, and remain 
 there searching from day to day until the transaction was 
 closed. The establishment of one register for all Eng- 
 land and Wales would lead to many journeys to the 
 metropolis, at the expense of purchasers. 
 
 The only ground upon which a general registry can be 
 supported is the safety of honest purchasers. But fre- 
 quently by the negligence of agents, attornies, clerks, 
 sometimes by frauds, even for the value of the fees which 
 have often been charged, although the deeds have not 
 been registered ; and at times by the negligence, delay, 
 or want of skill of the officers, or by oversights from which 
 (*)the most vigilant are not always exempt, heavy losses 
 have, under such a protective measure, fallen on bonajide 
 
 (*228)
 
 UNREGISTERED DEEDS, &r. 
 
 265 
 
 purchasers, \vlio liav^e themselves been diligent. The 
 class, therefore, to that extent, are sufferers. It is in vain 
 to hope th'it the registry will save the class from an equal 
 degree of loss by protecting them against concealed 
 intiumbrances to the same amount, for ignorance, sloth, 
 accident, petty frauds, are more likely to occur than 
 a great and direct fraud on a purchaser or mortgagee by 
 suppressing an incumbrance, and yet the slightest inatten- 
 tion or accident may be more fatal to a purchaser, with 
 the benefit of the Act of Parliament, than the vilest 
 fraud without that protection. No law can impart acti- 
 vity and intelligence to idle and ignorant persons, and 
 many have been ruined without any neglect of their own, 
 by the operation of the register acts. 
 
 The Committee of the House of Commons thousrht that 
 if it were made the law of the land that registration of 
 the conveyance should be as essential to the safety of the 
 purchaser as enrolment now is to the validity of a bargain 
 and sale, men would shape their course accordingly. It 
 was not, they said, to be presumed, that the performance 
 of so essential an act would be neglected in the one case 
 more than the other. In making these remarks, the 
 Committee were of course not aware that the instances 
 are numberless in which bargains and sales have not 
 been enrolled, although they become inoperative if not 
 enrolled within six months ; and in very many cases the 
 validity of recoveries depends upon the enrolment. 
 Hundreds of new recoveries have been suffered at a vast 
 expense in consequences of the neglect to enrol bargains 
 and sales, making the tenant to the prcecipe. 
 
 This question must be looked at as one of profit and 
 loss to the class : for even the existing statutes have not 
 the merit of giving a priority to an honest purchaser over 
 (*)a dishonest one ; but it is always a question between 
 two honest purchasers ; one must suffer ; and the loss is 
 simply transferred from one of the class to another of the 
 
 VOL. II. 34 (*229;
 
 2gg OF PROTECTION FROM 
 
 same class. Whether the proposed act would have 
 aggravated the evils, we shall presently consider. Pro- 
 bably few persons have seen more titles than the Avriter 
 of these remarks, and the cases within his knowledge of 
 suppressed incumbrances are very few indeed ; but he 
 believes he never saw a single title in a register county 
 in which important deeds had not been omitted to be 
 registered. 
 
 Such a general measure, if established, should be at- 
 tended w ith small expense ; for if expensive, its benefits 
 would be purchased too dearly ; and if they must be 
 bought, small purchases and trifling mortgages would 
 be diminished, to the great injury of the little farmer and 
 the middle classes of society generally, and, therefore, of 
 the country at large. If the rate of insurance be too 
 high, the mariner prefers encountering the perils of the 
 sea. Such a measure is of little use to small pm'chasers, 
 for they, as experience has shown, are seldom exposed 
 to danger from fraud. The registry would be as ex- 
 pensive upon a purchase of 300/. as upon one for 3,000?. 
 The expense, therefore, should not exceed what a small 
 purchase could fairly bear. Indeed, the measure is pro- 
 posed to embrace small transactions, not for their protec- 
 tion, but to render the plan itself perfect. The office 
 should be accessible, and therefore it should be local. 
 The plan should be simple ; otherwise the chance of a 
 miscarriage would far outbalance any possible good. No 
 man's rights should be unnecessarily, much less wan- 
 tonly, broken in upon. Therefore of course, no man's 
 title-deeds should be taken from him ; and it would not 
 obviate the objection to a provision requiring the deposit 
 of the deeds, that a duplicate copy might be deposited in 
 (*)lieu of the original ; for the rich ought not to be put to 
 the expense, and the poor could not avail themselves of 
 the option, but must deposit their deeds. A man whose 
 deeds were thus deposited^ would be prevented from 
 
 C*230)
 
 UNREGISTERED DEEDS, &c. 
 
 267 
 
 indorsing any deed upon a prior one; by which, in thou- 
 sands of cases, great expense is avoided, and he would 
 not be able to raise money by a deposit of the deeds 
 themselves. The first men in the city assert, that in 
 moments of panic the want of such a power might be 
 fatal. An Englishman likes to have his " sheep skins" 
 in his own box in " his own castle." A deposit in London 
 of all deeds would require a transmission of deeds from 
 every part of England and Wales, and would expose 
 every man's title-deeds to be lost or defaced. Besides, 
 a collection in London of all the title-deeds of all the 
 property in England and Wales would, in times of con- 
 fusion and revolution, probably invite the Jirst blow. They 
 who approve of Spencean principles would doubtless 
 consider it a considerable step towards an equal division 
 of property, that no man could show a separate title to 
 any given portion of it. The risk of fire; the dangers to 
 be apprehended from the sudden ebullition of a mob ; the 
 dishonesty of inferior officers in purloining the old parch- 
 ments for sale, and the like, may be added to the cata- 
 logue. The plan, moreover, would open a fine harvest 
 to a legitimate government for taxation, and to an illegi- 
 timate government for confiscation. The State would 
 possess, in one building, all the title-deeds to all the pro- 
 perty in England and Wales. If the curse of civil war 
 were to fall upon England, few would like the opposite 
 faction to be in possession of their title-deeds. The 
 Crown would have uninterrupted access to all the docu- 
 ments of any individual whose estate it should seek to 
 recover. 
 
 It would be a poor bribe to offer to the present holders 
 of property, that they may retain the deeds they have. 
 (*)If we legislate for the future, we should not impose 
 burdens which we would ourselves reject. Besides, the 
 measure would affect every man's future title-deeds : so
 
 2gQ OF PROTECTION FROM 
 
 that in a short time we should have only some of our 
 own title-deeds in our own possession. 
 
 Such a plan should of course compel a man to no 
 unnecessary disclosure of his dealings. The only legiti- 
 mate object is notice to future contractors ; for that pur- 
 pose it is not necessary that the whole of the transaction 
 should be disclosed. It is in vain to ask commercial men 
 whether such disclosures are mischievous. No man 
 desires to make his private affairs public, and the public 
 have no right to pry into his affairs except for some legi- 
 timate object, and this case presents none. But if all the 
 dealings of men of property, and all their title-deeds were 
 to be disclosed to the world, the misbhiefs would be 
 obvious ; immediate ruin would not unfrequently be 
 occasioned ; flaws in titles would be readily discovered ; 
 for the plan will not add to the learning or sagacity of 
 real property lawyers ; and Jews would have an opportu- 
 nity of ascertaining to what extent they could safely 
 supply the demands of an improvident heir. Many a 
 young man has been saved from ruin because he had not 
 the means of proving to money-lenders what his interest 
 was in the family property. 
 
 Such a plan, moreover, whilst it gave protection to the 
 diligent should not prefer a dishonest to an honest incum- 
 brancer. As the only legitimate object of such a register 
 is to impart knowledge, its object would be equally ac- 
 complished if the subsequent purchaser or mortgagee, 
 although his deed was first registered, had clear notice of 
 the prior deed. The plan, therefore, should leave the 
 present rule of equity to operate, which would postpone 
 the man who bought or advanced his money with notice 
 of a prior right, although obviously express notice should 
 (*)in such a case be required ; and it would be proper to 
 , make registry of itself notice, so as to make equitable 
 estates as such binding, if registered. As a purchaser 
 or mortgagee must employ an attorney, if a register be 
 
 (*232)
 
 UNREGISTERED DEEDS, &c. 269 
 
 established, the latter should be answerable to his em- 
 ployer for neglecting to search the register, or performing 
 that duty in a perfunctory manner. The officer himself 
 should be responsible to the suffering party in damages, 
 for neglect, carelessness or misconduct. 
 
 Of course such an office should not be a Government 
 one ; nor be made a source of revenue. Taxation, the 
 registries would not long escape ; they offer an irresist- 
 ible temptation to a Chancellor of the Exchequer, and if 
 he acted cautiously they might in time be made a sure 
 foundation for a new land-tax. 
 
 The existing statutes adhered pretty closely to the 
 rules above mentioned. The offices were local, domestic, 
 and readily accessible. No man was required to dis- 
 close any more of his deed than would identify it and its 
 general nature, and show the property which it affected ; 
 and of course no one was compelled to give up the deeds 
 themselves, or furnish duplicate copies of them. No un- 
 necessary expense was created. The acts legalized no 
 fraud, but left equity to interfere where a man, with 
 notice of another's right, attempted to avail himself of 
 the register as an engine of fraud. They left also every 
 man's attorney to his common law liability for negli- 
 gence, and rendered the registering officer himself liable 
 for neglect. Government had nothing to do with the 
 office. The register was appointed by the lord lieute- 
 nant, and the clerks by the chief officer. These acts led 
 to no ext{3nsive mischief, because the persons who knew 
 that certain deeds were not registered, of course must 
 have had notice of the deeds themselves ; and the rule 
 of equity, which the acts did not interfere with, forbad 
 (*)such a person to take advantage of the want of regis- 
 try ; and therefore it was indeed seldom that a title was 
 defeated by the prior registry of a subsequent title. The 
 system, however, does not work well ; because it is ex- 
 
 (*233)
 
 270 ^^" PROTECTION FROM 
 
 pensive to make a long search, and almost impossible to 
 make an efifectual one. 
 
 Now the proposed act was to extend the system, and 
 to have only one office in the metropolis for all England 
 and Wales ; to vest the appointment of a registrar-general 
 in the Crown, and of the inferior officers in the Treasury. 
 It is hard upon a government thus to have patronage forced 
 upon it. If it be desirable to extend registration over the 
 whole of the country, yet experience has shown that the 
 plan of registration may not answer. The existing offices 
 afforded the means of trying the new plan upon a limit- 
 ed scale ; but instead of availing themselves of this oppor- 
 tunity, the proposers at once established the new system 
 over the whole of England and Wales. Compensation 
 was to have been given to the present holders of office ; 
 and however ill the new plan might have worked, it would 
 with difficulty have been abolished, and certainly not 
 without more compensations. 
 
 In all material respects the principles of the existing 
 law were departed from. There was to be one great 
 office in London. Men were to be compelled to deposit 
 their deeds, or duplicates of them ; and even this had 
 not the merit of rendering it Unnecessary to send other 
 particulars with the deeds ; so that the nevv provisions 
 had all the inconveniences of the old, and imposed the 
 additional necessity of depositing the deed, or a duplicate 
 of it ; indeed the incanveniences of the existing acts 
 were aggravated, for- they once and for all prescribed 
 what was to be furnished, whilst the new bill rendered 
 it necessary to send such particulars as the registrar- 
 general, after certain Gazette announcements, should 
 (*)from time to time require. The deeds were to be 
 written as the officer should direct, or a fine was to be paid. 
 Of course this plan exposed to public view every man's 
 disposition of his property. Certain checks were intro- 
 
 (■*234)
 
 UNREGISTERED DEEDS, &c. 271 
 
 duced in order to prevent improper inspections ; but they 
 were worse than useless, for they appeared to give a pro- 
 tection which in reality they never could have afforded. 
 It is said that men w ill not search from curiosity ; that 
 wills are not inspected from that motive. But the fact is, 
 that wills are constantly resorted to by persons who have 
 no interest in the property. Besides, dead men's wills 
 cannot be compared with living men's deeds. It is one 
 thing to know what property a man takes under his 
 father's will, and another how he has himself disposed of 
 it. With a view to attack men's titles, daily resort will 
 be had to the registry. Stratagems of all sorts : — pur- 
 chases of a lot at an auction ; bribes to agents or clerks, 
 are now resorted to in order to obtain from a man's muni- 
 ment chest the materials for an impeachment of his title. 
 But it is urged, why is not this done as to copyholds? 
 The answer is, that it frequently is, as far as the nature of 
 the court rolls will admit. The writer has known several 
 instances in which court rolls have furnished evidence for 
 an action against the owner of copyholds, whilst none 
 could be obtained for an attack upon his title to freeholds, 
 although equally subject to the f^aw^ 
 
 The Committee of the House of Commons, in their 
 Report, appear to suppose that all titles are in future to 
 be free from flaws. They say, " that no present deed is 
 " to be registered, and that the purchaser will take care 
 " that his deed is effectual to give him the estate for which 
 " he has contracted ; and it can in no wise prejudice 
 " him to show to the world that he has really become the 
 " owner of that which he intended to make his by pur- 
 " chase. No defect patent upon deeds ought to be con- 
 " cealed. (*)These deeds ought to be disclosed in such 
 " a manner as to preclude or defeat all persons who have 
 " no interest, and to let in the rightful owner. An expo- 
 " sure of this kind, and with this view, cannot be too open ; 
 " it is the very object and chief aim of registration. No 
 
 (*235)
 
 272 °^ PROTECTION FROM 
 
 *1 
 
 "flaw need be disclosed in old deeds not registered ; and vl 
 " if the title appearing on the register is bad, defective or ftj 
 " doubtful, justice will be done, and the right established, 
 " by an appeal to judicial decisions." This new view of 
 the object of registration ought not to be lost sight of. We 
 will protect you, say they, from putting on the register 
 your present deeds, so as to guard against your exposing 
 any defects in your title. But how is this reconcilable with 
 the moral precepts which follow ? Why are present defects 
 to be concealed, and future ones exposed ? But surely 
 it is a duty of imperfect obligation to expose one's title- 
 deeds to the world in order that any defects in them may 
 be detected, and that a man may be stripped of all his 
 property. The law of England acknowledges no such 
 obligation ; and few indeed are the cases in which an 
 honest purchaser or mortgagee is compelled to produce 
 his deeds. The Committee observe, in a strain of playful 
 irony, that a purchaser will take care to have an effectual 
 title. But with this view it may be prudent to enact, 
 that conveyancers and solicitors shall in future commit 
 no blunders. 
 
 The registry of the deeds themselves, we are told, will 
 protect persons from the loss of them. Now, is this a 
 legitimate object of legislation ? Why not insure every 
 man's house, stock and cattle for him, and charge him 
 with the premium ? Why not register his ledger and 
 day-book, and his annual balances ? Speaking generally, 
 men should be left, under wise laws, to take care of 
 themselves and their property. 
 
 By the proposed system title-deeds would have been 
 (*)exposed to danger, in being transmitted to London from 
 all parts of the country ; and this was not obviated by 
 the channel of transmission being through the Post-office. 
 The Postmaster-general had no doubt provided athletic 
 postmen to carry the daily burdens ; and for the mails, 
 doubtless, light vans would have been substituted. 
 
 (*236)
 
 UNREGISTERED DEEDS, &c; 273 
 
 As the great object of the act was to make registration 
 binding in every event, a subsequent purchaser or mort- 
 gagee, although he had notice of the prior conveyance, 
 was not to be bound by it, if he got his own deed first upon 
 the registry. And even in like circumstances a subsequent 
 equitable title was to be made good against the prior 
 ' purchaser or 6o;i«^(/e owner. This indeed would have led 
 > to the introduction of infinitely greater mischief than 
 that which was proposed to be remedied by the act ; 
 for here was an express invitation to roguery. An agent 
 might, although not avowedly, have a direct interest in neg- 
 lecting to register the deed of his principal. And every 
 profligate owner of an estate would be endeavoring to 
 raise money upon it at the expense of a bona fide incum- 
 brancer or purchaser, whose confidence, or the careless- 
 ness ?)r misconduct of whose agent, had led to an omission 
 to register his deed. Abolish the equitable operation of 
 notice in these cases, and the most revolting frauds 
 might be practised, which equity would not be able to 
 relieve against. If the rule of equity, which is universal, 
 is a bad one, correct or annul it, but do not in this par- 
 I ticular case alter it, whilst you leave it thus stigmatized, 
 to have its full bearing upon all other cases. 
 
 The Committee of the House of Commons thought 
 that a subsequent deed registered ought to prevail over 
 a prior deed unregistered, although the party who regis- 
 tered the subsequent deed had notice at the time that the 
 prior deed had been executed ; but that if it could be 
 proved that the subsequent deed had been obtained by 
 (*)fraud, and proof of this is altogether independent of 
 notice, registration certainly ought not to give that deed 
 validity ; and they conceived that the registration of a' 
 fraudulent deed would not prevent a court of equity from 
 giving tfiat relief which the justice of the case requires. 
 The proposed act therefore provided that priority should 
 not be taken away by equity in consequence of notice, 
 
 vol.. II. 35 (*237)
 
 274 
 
 OF PROTECTION FROM 
 
 and that where priority was given to any person claim- 
 ing for valuable consideration under a subsequent assur- 
 ance an equitable estate or interest, such priority should 
 be enforced, althougli the person claiming under such 
 subsequent assurance should have been affected with 
 notice. Nothing can be more opposed than these pro- 
 visions are to the principles of equity as administered in 
 this country for centuries. Our rules of equity have had 
 a powerful tendency to establish fair dealing between 
 man and man in contracts. Let the Legislature beware 
 how it wantonly disturbs those rules. Equity knows no 
 higher fraud than a man's purchasing an estate which 
 he is aware has already been sold and conveyed to an- 
 other, with an intent to take advantage of a slip in the 
 formalities of the registry of the first purchaser's con- 
 veyance, or perhaps of an omission to register it*alto- 
 gether. According to the new rule, a man may contract 
 for the purchase of an estate and pay for it — of course he 
 would take care to have a good bargain — although he 
 knows that it has already been conveyed to a prior pur- 
 chaser whose deed is not registered, and may then compe! 
 the first, the honest purchaser, to convey the estate to him. 
 A court of iniquity should be established, to give perfec- 
 tion to such base transactions. In the first attempts by 
 the Commissioners at legislation, although notice was 
 made inoperative against a registered deed, yet rights 
 of action were given to counterbalance the operation of 
 the rule. This was an indirect and absurd mode of 
 (*)giving effect to notice. It was necessarily withdrawn ; 
 but the clause abolishing the operation of notice ought 
 to have been withdrawn with the compensation clause. 
 
 In order to guard the purchaser against loss, it was at 
 first suggested that the purchase-money might be depo- 
 sited in the hands of a third person until the deed was 
 registered. But might not the purchaser or seller disap- 
 prove of this ? It would lead to great evils. The money 
 
 (*238)
 
 UNREGISTERED DEEDS, &c. 275 
 
 might be lost by the dishonesty or failure of the deposita- 
 ry. The provisions of the act would have exposed every 
 man's purchase or mortgage to such imminent hazard, 
 that hov^'ever remote might be his residence from the 
 metropolis, his only safety would be in completing his 
 purchase on the threshold of the metropolitan office, and 
 then rushing into it with the deed for registration. 
 Country solicitors would not allow all the business to be 
 transacted by London solicitors. They would frequently 
 send their clerks to town, or go themselves, to make 
 the searches. The caveat which the act authorized to 
 be entered in certain cases, only exhibited the danger 
 of the system. The caution could not have been given 
 in many cases, and in all would have been so troublesome 
 and costly, such a clog upon contracts, that few would 
 have had recourse to it unless it had become an ordinary 
 mode of inflaming the agent's bill. Upon a registry 
 there may, in every case, be a race, and the race should 
 be to the swift. A man should not be allowed to give 
 perfection to an imperfect transaction by a caveat which 
 \^ ould operate against a prior perfect instrument. 
 
 But whatever might have been the diligence of the 
 purchaser or incumbrancer, yet he might lose his estate 
 or money through the carelessness, dishonesty or want of 
 skill in the officers of the establishment. The system was 
 a new one, and however excellent, it might have been 
 found difficult to follow it literally, and the slightest 
 (*)blunder might have defeated the title, or the smallest 
 delay might have proved fatal. There was little prospect 
 of a man's recovering damages for any loss occasioned 
 by the neglect, ignorance or misconduct of the officers. 
 For the registrar-general was empowered to require such 
 statements from time to time as he should think proper, 
 to be sent with the assurances for regulating the entries, 
 and in case no statement should have been sent conform- 
 ably with such order, the purchaser or incumbrancer was 
 
 (*239)
 
 276 ^^ PROTECTION FROM UNREGISTERED DEEDS, &c. 
 
 to be without remedy on account of any omission, delay 
 or error in the entry. The remedy would practically 
 have been .nominal. The purchaser's own solicitor was 
 improperly exonerated, if he directed an office search, and 
 obtained a certificate of the result. If any loss was 
 sustained by any omission, mistake or misfeasance of any 
 officer, and the pu7xhaser could maintain an action, the 
 damages were to be paid out of the consolidated fund. 
 Some Chancellor of the Exchequer would have started at 
 an item of 100,000/. for damages, occasioned by a clerk's 
 writing " Compton" for " Crompton" ! 
 
 The plan would probably have given great counte- 
 nance for a time to forged deeds. In the many instances 
 in which confidential agents have forged deeds, they have 
 always given sufficient publicity to them. The registry 
 of a forged deed would not be more likely to bring it to 
 the knowledge of the person whose name was forged, than 
 the delivery of the deed to a purchaser or mortgagee ; 
 but the registry of such a deed would nevertheless induce 
 others to place more confidence in it. The plan did not 
 require deeds to be authenticated before they were reg- 
 istered. In that instance also, the existing rule was de- 
 parted from. 
 
 It was no part of the plan to improve men's present 
 titles; they were to remain subject to their original infir- 
 mities. The expense of erecting a building — of course 
 (*)a national ornament — and of the establishment, would 
 have been large, but still such a m.easure should not have 
 been made a source of revenue, or in other words, of 
 taxation, and therefore, if ever the plan be adopted, pro- 
 vision should be made for reducing the fees to a level 
 with the expenditure. The act exempted memorials from 
 stamp duty. But as has already been remarked, the 
 temptation would be too great for a Chancellor of the 
 Exchequer long to resist ; they would inevitably be sub- 
 jected to a heavy duty, and thus the landed interest would 
 
 (^^240)
 
 OF PROTECTION FROM ACTS OF PAPISTRY. 
 
 277 
 
 be taxed for a security which the act would in vaiu 
 affect to afford to them. For these reasons, the writer 
 has always been averse to the extension of the system 
 of registration ; and an examination of the proposed 
 measure, after all the amendments it received, has satisfi- 
 ed him that its certain operation, if it had passed into a 
 law, would have been to create great expense, and cause 
 much vexation ; but that it was more than doubtful, 
 whether to the general class of honest purchasers, the 
 loss it would occasion would not have preponderated 
 over the profit. 
 
 The act has been framed with ability, and the scheme 
 of registration is a great improvement upon its predeces- 
 sors ; but the fault is in the system, which never can 
 afford the security which it affects to give whilst it intro- 
 duces dangers and difficulties that no talents can obviate. 
 The examples aff()rded by the registers of Ireland and 
 Scotland, offer no temptation to Enland to imitate them. 
 In a few years, a general register would be destroyed by 
 its own enormous weight. 
 
 (*)SECTrON VI. 
 
 Of Protection from Acts of Papistry. 
 
 By the 11 fc 12 Will. 3, c. 4, it was enacted, that 
 papists who should not, within six months after attaining 
 eighteen, take the oaths and subscribe the declaration 
 therein -mentioned, should, but as to himself or herself 
 only, be incapable to take by descent, devise or limitation ; 
 and the estate should be enjoyed by the next of kin, being 
 
 (*241)
 
 278 ^^ PROTECTION FROM 
 
 a piotestant, during the life, or until the conformity of 
 such papist. And by this act papists were rendered in- 
 capable of purchasing lands, either in their own names, 
 or in the names of trustees ; and all estates made to them 
 were declared to be utterly void and of none effect, to all 
 intents, constructions and purposes whatsoever. 
 
 To remedy the inconveniences arising from this provi- 
 sion, it was by a modern statute(c) enacted, that no sale 
 for a full and valuable consideration by a papist, of any 
 lands, or of any interest therein theretofore made, or 
 thereafter to be made, to a protestant purchaser, should 
 be impeached by reason of any disability of the vendor, 
 or of any persons under whom he claimed, in consequence 
 of the 11 & 12 Will. 3(d) ; unless the person taking ad- 
 vantage^ of such disability should have recovered before 
 the sale, or given notice of his claim to the purchaser, or 
 before the contract for sale should have entered his claim 
 at the quarter-sessions, and bona fide pursued his remedy. 
 But it was expressly provided, that the clause in 11 & 
 (*)12 Will. 3, disabling papists from purchasing, should 
 remain in full force. 
 
 In the case of Fairclaim v. Newland(e), the Court of 
 King's Bench expressed an extra-judicial opinion, that 
 the statute of Geo. 1. did not in every case authorize a 
 sale by a papist to a protestant purchaser. They consi- 
 dered the statute of Will. 3. as having different pro- 
 visions for persons of different ages, viz. as to those 
 under eighteen, estates limited to them were vested for 
 the benefit of their posterity, and these were intended to 
 he able to convey to protestants; but as to others above 
 eighteen, they are absolutely disabled from taking any 
 estate by purchase, and the statute of George never 
 intended to enable them to convey what they had not. 
 
 (c) 3 Geo. 1, c. 18. See 29 Geo. 3, c. 36, s. 4. 
 
 (d) Vide supra, vol. 2, p. 108. 
 
 (e) 8 Vin. Abr. 73, pi. 4. 
 (*242)
 
 ACTS OF PAPISTRY. 27Q 
 
 In a case before Lord Hardwicke, two years afterwards, 
 it was insisted that the proviso in the act of George 
 restrained the enacting part to a statute of James recited 
 in the act of George ; and that the statute of William, by 
 the express words of the proviso, remained in full force. 
 Lord Hardwicke, however, said "that the statute of 
 William was to be sure made to prevent papists from 
 acquiring new estates. Then came the statute of 
 Geo. .1, and this statute, and the proviso in it, had a 
 seeming repugnancy, and he would take notice, that the 
 statute in this respect had always been doubtful ; some 
 people had thought that the proviso restrained the statute, 
 and it was certainly a very odd provisp. But he thought 
 the meaning of the j)roviso was only ex ubundanti cautela 
 against papists, and was not designed to affect pur- 
 chasers ; for if it were otherwise, the security to protes- 
 tant purchasers, under the statute, would be a most 
 doubtful security." And he considered the enacting part 
 of the statutes as in full force for the benefit of a protes- 
 tant (*)purchaser, although it was not necessary to decide 
 the point(y). 
 
 ' Mr. Wilbraham was one of the counsel for the plain- 
 tiff in the last case, and in an opinion given by him on 
 this point a few years afterwards, he thought that the act 
 of Geo. \. authorized a sale by a papist purchaser to a 
 protestant purchaser, and was not in that respect con- 
 trolled by the proviso. He stated, that as the opinion of 
 the eminent conveyancers, from the time of passing the 
 act in 1717, till about the year 1740, had been, that 
 popish purchasers might sell ; and as it was the opinion of 
 the present Chancellor, and several eminent lawyers, they 
 might sell, he was of the same opinion, though the Court 
 of King's Bench seemed to be of a contrary opinion in 
 
 (/) Wildigos V. Keeble, 8 Vin. Abr. 73, pi. 5. See S. C. cited, 1 
 Atk. 635 ; 2 Yes. 392, nom. Wildgoose v. Moore. 
 
 (*243)
 
 OOQ OF PROTECTION FROM 
 
 atrial at bar, in the year 1741, between Fairchild and 
 Nevvland(o-). Indeed it seems surprising that any doubt 
 should have arisen on this point, as the act was passed 
 for the express purpose of encouraging Roman catholics 
 to sell their estates to protestants, however they might 
 have acquired them ; and the Legislature was only 
 anxious that Roman catholics should not derive any power 
 from the act to purchase and hold estates. A different 
 construction would deprive the act of nearly all operation. 
 It has now, however, long been thought the better 
 opinion, that the proviso does not defeat the enacting 
 part in favor of protestant purchasers, and on the autho- 
 rity of it many purchases of considerable consequence 
 have been made(A-). 
 
 The act requires the sale to be " for a full and valu- 
 able (*)consideration ;" but the purchase will be protected 
 bv the statute, although a year's purchase more might 
 have been obtained for the estate, the consideration being 
 only evidence of the reality of the purchase(i). 
 
 And although a purchase from a papist was made 
 under suspicious circumstances, yet if the purchaser has 
 paid any part of the purchase-money, he may plead 
 the statute of Will. 3, in bar to a bill for a discovery 
 from him, whether the vendor was a papist ; for by his 
 discovery the estate might perhaps be recovered at law, 
 and then he would lose the money he had paid(A:). 
 
 On this statute it remains to observe, that a purchaser 
 having notice of the vendor being a papist, and under 
 
 (g-) 2 Vol. Cas. and Opin. 60 ; and see several other opinions, ih. 
 54 to 71. 
 
 {h) See Mr. Butlers's learned note to Co. Litt. 391, a, s. 3. See also 
 43 Geo. 3, c. 30 ; and see O'Fallon v. Dillon, 2 Scho. & Lef. 13, for 
 the construction of popery acts. 
 
 (t) Wildgoosev. Moore, 1 Atk. 535 ; 2 Ves. 392, cited ; vide supra; 
 2 Atk. 210 : Barnard Rep. Cha. 455 ; Smith v. Read, 1 Atk. 526. 
 
 {k) Harrison v. Southcote, 1 Atk. 528 ; 2 Ves. 389. 
 
 (*244)
 
 OF PROTECTION FROAl DEFECTS IN RECOVERIES. 
 
 281 
 
 a disability to hold, is immaterial, unless it was given 
 to him by the person taking advantage of the disability 
 according to the act of Geo. 1. 
 
 I have allowed this section to remain, as it is short, and 
 possibly a knowledge of its contents may be required ; 
 but by the 10 Geo. 4, c. 7, s. 23, it is enacted, that after 
 the passing of that act no oath or oaths shall be tendered 
 to or required to be taken by his Majesty's subjects pro- 
 fessing the Roman catholic religion, for enabling them to 
 hold or enjoy any real or. personal property, other than 
 such as may by law be tendered to and required to be 
 taken by his Majesty's other subjects. 
 
 (*)SECTION VIK 
 Of Protection from Defects in Recoveries, 
 
 Here may be mentioned the 4th section of the 14 Geo. 
 2, c. 20, for which the Profession is indebted to the late 
 Mr. Pigot ; whereby, after reciting, that by the default 
 or neglect of persons employed in suffering common re- 
 coveries, it has happened, and may happen, that such re- 
 coveries are not entered on record, whereby purchasers 
 for a valuable consideration may be defeated of their just 
 rights ; it is enacted, " that where any person or persons 
 hath or have purchased, or shall purchase for a valuable 
 consideration, any estate or estates, in lands, tenements 
 or hereditaments, whereof a recovery or recoveries is, are 
 or were necessary to be suffered, in order to complete the 
 title, such person and persons, and all claiming under 
 him, her or them, hamng been inpossession of the purchased 
 estate or estates from the time of such purchase, shall and 
 
 VOL. II. 36 C*245;
 
 282 
 
 OF PROTECTION FROM 
 
 may, after the end of twenty years from the time of such 
 purchase, produce in evidence the deed or deeds making 
 a tenant to the writ or writs of entry, or other writs for 
 suffering a common recovery or recoveries ; and declar- 
 ing the uses of a recovery or recoveries ; and the deed 
 or deeds so produced (the execution thereof being duly 
 proved) shall, in all courts of law and equity, be deemed 
 and taken as a good and suf6cient evidence for such 
 purchaser and purchasers, and those claiming under him, 
 her or them, that such recovery or recoveries was or were 
 duly suffered and perfected, according to the purport of 
 such deed or deeds, in case no record can be found of 
 such recovery or recoveries, or the same shall appear not 
 to be regularly entered on record : provided always, that 
 the person or persons making such deed or deeds as 
 (*)aforesaid, and declaring the uses of a common recovery 
 or recoveries, had a sufficient estate and power to make 
 a tenant to such writ or writs as aforesaid, and to suffer 
 such common recovery or recoveries." 
 
 This clause will still operate upon existing titles ; but 
 its further operation is now at an end, for by the 3 & 
 4 Will. 4, c. 74(/), fines and recoveries are abolished. 
 This last act contains several provisions in favor of 
 purchasers. By s. 38, it is enacted, that when a tenant 
 in tail of lands under a settlement shall have already 
 created, or shall hereafter create in such lands, or any of 
 them, a voidable estate in favor of a purchaser for valua- 
 ble consideration, and shall afterwards under that act, by 
 any assurance other than a lease not requiring enrolment, 
 make a disposition of the lands in which such voidable 
 estate shall be created, or any of them, such disposition, 
 whatever its object may be, and whatever may be the ex- 
 tent of the estate intended to be thereby created, shall, 
 if made by the tenant in tail with the consent of the pro- 
 
 (/) Supra, vol. 1. p. 380. 
 (*246)
 
 DEFECTS IN RECOVERIES. 
 
 283 
 
 tector, if any, of the settlement, or by the tenant in tail 
 alone, if there shall be no such protector, have the effect 
 of confirming such voidable estate in the lands thereby 
 disposed of to its full extent, as against all persons ex- 
 cept those whose rights are saved by the act ; but if at 
 the time of making the disposition there shall be a pro- 
 tector of the settlement, and sucn protector shall not con- 
 sent to the disposition, and the tenant in tail shall not 
 without such consent be capable under this act of con- 
 firming the voidable estate to its full extent, then such 
 disposition shall have the effect of confirming such void- 
 able estate, so far as such tenant in tail would then be 
 capable under the act oi' confirming the same without 
 such consent, provided that if such disposition shall be 
 made to a purchaser for valuable consideration, who shall 
 (*)not have express notice of the voidable estate, then the 
 voidable estate shall not be confirmed as against such 
 purchaser and the persons claiming under him. 
 
 And by s. 6% it is enacted, that where an actual tenant 
 in tail of lands of any tenure, or a tenant in tail entitled 
 to a base fee in lands of any tenure, shall have already 
 created, or shall hereafter create in such lands, or any of 
 them, a voidable estate in favor of a purchaser for 
 valuable consideration, and such actual tenant in tail, or 
 tenant in tail so entitled as aforesaid, shall be adjudged 
 a bankrupt under a fiat, and the commissioner acting 
 in the execution of such fiat shall make any disposition, 
 under the act, of the lands in which such voidable estate 
 shall be created, or any of them, then, if there shall be 
 no protector of the settlement by which the estate tail of 
 the actual tenant in tail, or the estate tail converted into a 
 base fee, as the case may be, was created, or being such 
 protector, he shall consent to the disposition by such com- 
 missioner as aforesaid, whether such commissioner may 
 have made under the act a previous disposition of such 
 
 (*247)
 
 984 ^^ PROTECTION FROM DEFECTS IS RECOVERIES. 
 
 lands or not, or whether a prior sale or conveyance of the 
 same lands shall have been made or not under the acts of 
 6 Geo. 4. and the 1 & 2 Will. 4, or either of them, or any 
 other acts hereafter to be passed concerning bankrupts, the 
 disposition by such commissioner shall have the effect 
 of confirming such voidable estate in the lands thereby 
 disposed of to its full extent, as against all persons except 
 those whose rights are saved by that act ; and if at the 
 time of the disposition by such commissioner, in the case 
 of an actual tenant in tail, there shall be a protector, and 
 such protector shall not consent to the disposition by 
 such commissioner, and such actual tenant in tail, if he 
 had not been adjudged a bankrupt, would not without 
 such consent have been capable under the act of con- 
 firming the voidable estate to its full extent, then and in 
 (*)such case such disposition shall have the effect of con- 
 firming such voidable estate, so far as such actual tenant 
 in tail, if he had not been adjudged a bankrupt, could at 
 the time of such disposition have been capable under the 
 act of confirming the same without such consent ; and if 
 at any time after the disposition of such lands by such 
 commissioner, and while only a base fee shall be sub- 
 sisting in such lands, there shall cease to be a protector 
 of such settlement, and such protector shall not have 
 consented to the disposition by such commissioner, then 
 such voidable estate, so far as the same may not have 
 been previously confirmed, shall be confirmed to its full 
 extent, as against all persons except those whose rights 
 are saved by the act ; provided that if the disposition by 
 any such commissioner as aforesaid shall be made to 
 a purchaser for valuable consideration, who shall not 
 have express notice of the voidable estate, then the 
 voidable estate shall not be confirmed against such pur- 
 chaser and the persons claiming under him. 
 
 But by s. 47 it is enacted, thai m cases of dispositions
 
 OF PROTECTION FROM DEFECTS IN RECOVERIES. 285 
 
 of lands under the act by tenants in tail thereof, and 
 also in cases of consents by ^protectors of settlements to 
 dispositions of lands under this act, by tenants in tail 
 thereof, the jurisdiction of courts of equity shall be 
 altogether excluded, either on the behalf of a person 
 claimins: for a valuable or meritorious consideration or 
 not, in regard to the specific performance of contracts 
 and the supplying of defects in the execution either of 
 the powers of disposition given by the act to tenants in 
 tail, or of the powers of consent given by the act to 
 protectors of settlements, and the supplying under any 
 circumstances of the want of execution of such powers of 
 disposition and consent respectively, and in regard to 
 giving effect in any other manner to any act or deed by 
 a tenant in tail, or protector of a settlement, which in 
 (*)a court of law would not be an effectual disposition or 
 consent under the Act ; and that no disposition of lands 
 under the act by a tenant in tail thereof in equity, and no 
 consent by a protector of a settlement to a disposition of 
 lands under the act by a tenant in tail thereof in equity, 
 shall be of any force unless such disposition or consent 
 w^ould in case of an estate tail at law be an effectual dis- 
 position or consent under the act in a court of law. 
 
 SECTION VIII. 
 Of Protection from Defects in Sales for Land- Tax, 
 
 We may here notice the 12th section of the 54 Geo. 3, 
 c. 173, vvhereby, after reciting that for the purpose of re- 
 deeming land-tax, or of raising money for reimbursing the 
 
 (*249)
 
 236 ^^ PROTECTION FROM 
 
 Stock or money previously transferred or paid as the con- 
 sideration for redeeming land-tax charged on lands and 
 other hereditaments belonging to persons for the time 
 being seised or possessed, or entitled beneficially in pos- 
 session to the rents and profits of, but not having the ab- 
 solute estate or interest in, such lands or other heredita- 
 ments, or for some other purposes for which lands and 
 hereditaments are authorized to be sold by such persons 
 under the powers and provisions of the said act of 
 the 42d of Geo. 3, or of some subsequent act relating 
 to the redemption and sale of the land-tax, some sales of 
 lands and other hereditaments may have been or may be 
 made by persons so seised or entitled, not strictly autho- 
 rized to sell by such powers and provisions without some 
 further assurance in the law, or by reason that all the 
 lands and other hereditaments of or to which the persons 
 making such sales were respectively so seised or entitled, 
 (*)did not at the times of such sales stand limited and 
 settled, and subject to or for the same uses, trusts, intents 
 and purposes, or by reason that a greater quantity of an 
 estate has been sold than may have been necessary 
 to be sold for the authorized purposes, or by reason of 
 some other mistake or inadvertence ; It is enacted, that 
 all sales so made as aforesaid, and all conveyances exe- 
 cuted of the lands or other hereditaments so sold, pro- 
 vided the same have been respectively made and executed 
 bona fide and for valuable consideration, and shall appear 
 to have been made and executed under the authority and 
 with the consent and approbation of the commissioners, as 
 required by the said acts or any of them, in cases of sales 
 under the powers of the said acts, shall be and the same 
 are thereby ratified and confirmed from the respective 
 periods at which such sales and conveyances were res- 
 pectively made and executed, and shall be from such 
 respective periods as valid and effectual • in the law 
 as if such sales and conveyances had been made and 
 
 (*250)
 
 DEFECTS IN SALES FOR LAND-TAX. 
 
 287 
 
 executed in strict conformity to the powers and pro- 
 visions under which the same were intended to have 
 effect, any thing in the said act of the 42d of Geo. 3, or 
 of any such subsequent act, as aforesaid, to the contrary 
 notwithstanding. But this provision is qualified by a 
 proviso, that every person injured or prejudiced by any 
 sales thereby confirmed shall be entitled to relief, either 
 by the decree of a court of equity on a bill filed, or by a 
 summary application to a court of equity by petition, and 
 by the usual proceedings before the Master or other 
 proper officer of the court, on such petition, and an order 
 thereupon ; and shall, under such decree or order, have 
 an annual rent-charge to such an amount, and for and 
 during such term or estate, and charged upon such lands 
 or other hereditaments as such-court shall order or direct; 
 and the said court shall have full power to adjust the 
 (*)proportion and terms of such annual rent-charge be- 
 tween different claimants, and to direct the settlement of 
 such annual rent-charge in such manner as the said court 
 shall, under the circumstances of the case, in its discre- 
 tion, think proper ; and shall also have power to make 
 such order respecting the costs of the parties as the said 
 court shall think fit. 
 
 By the 57th of Geo. 3, c. 100, s. 22, after reciting that 
 it a[)peared that some deeds of sale, which previous to 
 the revocation of the commissions theretofore granted 
 under the royal sign-manual, enabling the persons therein 
 named to be commissioners for the redemption and sale 
 of the land-tax, were intended to have been executed by 
 and under the authority of the persons named in such 
 commissions, had been executed by the tenants for life, 
 or other persons having authority, with the consent of 
 such commissioners to make such sales, but had not been 
 executed by such commissioners, and difficulties had in 
 some instances arisen as to the mode of confirmina: titles 
 under such imperfect conveyances, and that it was expe- 
 
 (*251)
 
 288 °^ PROTECTION FROM 
 
 client that a discretionary power should be given to tiie 
 commissioners for the affairs of taxes of confirming the 
 same, and also any deed of mortgage or grant that might 
 for the same cause be found imperfect, it was therefore 
 enacted, that upon production to the commissioners for 
 the affairs of taxes, or any two of them, of any deeds of 
 sale, mortgage or grant, that had been executed by any 
 tenant or tenants for life, or other person or persons 
 having authority under the land-tax redemption-acts for 
 the time being, to make any such sale, mortgage or 
 grant, with the consent and approbation of two or more 
 of the commissioners for the time being, appointed by 
 and under the royal sign-manual, but which deeds of 
 sale, mortgage or grant had not been executed by the 
 commissioners whose consent was necessary to the vali- 
 dity (*)thereof respectively, it should be lawful for the said 
 commissioners for the affairs of taxes, or any two of them, 
 on their being satisfied that such deeds of sale, mortgage 
 or grant would have been authorized and available under 
 the powers and provisions of the said acts, or some of 
 them, if two of the commissioners for the time being, 
 acting by virtue of the royal sign-manual, had been par- 
 ties to and executed the same, to sign and seal such deeds 
 of sale, mortgage and grant, and to cause such indorse- 
 ments to be made on such deeds respectively, as the said 
 commissioners for the affairs of taxes might, under the 
 circumstances of the case, think necessary or proper for 
 showing their assent to and confirmation of such sales, 
 mortgages or grants ; and all such deeds of sale, mortgage 
 or grant, which should be so signed and sealed by the said 
 commissioners for the affairs of taxes, or any two of them, 
 and upon which any such indorsement should be made, 
 should be and the same were thereby respectively ratified 
 and confirmed from the respective periods at which such 
 sales, mortgages or grants were respectively intended to 
 take effect, and the same should be from such respective 
 
 C*252)
 
 DEFECTS IN SALES OF LAND-TAX. ooq 
 
 periods as valid and effectual in the law, and be consi- 
 dered as conferring upon the respective purchasers or 
 mortgagees of the lands and hereditaments therein respec- 
 tively comprised, or upon the respective grantees of any 
 rent-charges, and all persons claiming by, from, through, 
 under or in trust for them respectively, as good a title to 
 the lands or hereditaments sold or mortgaged, or to the 
 rent-charges granted, as if two of the commissioners for 
 the time being, acting under the royal sign-manual, and 
 who would have been competent under the acts for the 
 time being to consent to such sales, mortgages or grants 
 respectively, had approved of and consented thereto 
 respectively, by signing and sealing such deeds respec- 
 tively ; and no deeds of sale, mortgage or grant, so to be 
 (*)confirmed, should require any stamp-duty by reason of 
 any execution thereof by the commissioners for the affairs 
 of taxes, or by reason of any such indorsement to be made 
 thereon, as aforesaid. 
 
 And it was further enacted(m), that where any con- 
 tract should have been entered into for the redemption of 
 any land-tax, and any contract should have been entered 
 into for sale of any lands or other hereditaments for the 
 purpose of raising money to complete the contract for 
 the redemption of such land-tax, and it should appear 
 that such contract for sale could not, under the powers 
 and authorities of the land-tax redemption-acts, or any of 
 them, or by reason of some defect in the title to the lands 
 or other hereditaments comprised in such contracts for 
 sale, be completed, it should be lawful for the commis- 
 sioners for the affairs of taxes, or any two of them, to 
 rescind and declare void such contract for redemption of 
 land-tax, and thereupon it should be lawful for the said 
 coiDmissioners to make such orders, and give such direc- 
 tions, as they should think proper for the re-transfer of 
 
 (m) Sec. 23. 
 VOL. II. 37 (*253)
 
 290 
 
 OF PROTECTION FROM 
 
 any stock, or the re-pajment of any money that miglit 
 have been previously transferred or paid in pursuance of 
 such rescinded contract ; and the governor and company 
 of the Bank of England, the commissioners for the reduc- 
 tion of the national debt, and the several receivers-general 
 in England and collectors in Scotland, to whom the same 
 might respectively appertain, should, upon a certificate of 
 such contract being so rescinded, make, and they are 
 hereby respectively required to make, such re-transfer or 
 re-payment accordingly. 
 
 And after reciting that it was expedient to make pro- 
 vision for the enrolment and register of deeds, which had 
 not been duly enrolled or registered pursuant to the 
 directions of the several acts passed relating to the re- 
 demption (*)of the land-tax, it was enacted(/z), that all 
 deeds required by the said acts, or any of them, to be 
 enrolled or registered, should be valid and effectual, al- 
 though the same should not have been or should not be 
 enrolled or registered within the periods prescribed by 
 the said acts respectively, provided the same should have 
 been enrolled or registered before the passing of the said 
 act, or should be enrolled or registered within twelve 
 calendar months after the passing thereof; and that in 
 any case such deeds should not be enrolled or registered 
 within twelve calendar months after the passing of the 
 said act, or any deeds thereafter to be executed under 
 the powers of the said acts, or any of them, or of this 
 present act, should not be enrolled or registered within 
 six calendar months after the execution thereof respec- 
 tively, it should be lawful for any two or more of the 
 commissioners for the time being for the redemption and 
 sale of the land-tax, if they should think fit, upon the 
 production of any such deeds, to order the same to be 
 
 (n) Sec. 24. 
 (*254) 
 
 I
 
 DEFECTS IN SALES FOR LAND-TAX. 291 
 
 enrolled or registered ; and that all deeds to be enrolled 
 or registered pursuant to any such order should be as 
 valid and effectual as if the same had been enrolled or 
 registered within the periods prescribed by the said acts, 
 or by this present act : and that all conveyances made 
 subsequent to any deeds already enrolled or registered, 
 or to be enrolled or registered under this act, and de- 
 pending in point of title on such deeds, should be of 
 the same effect as if such deeds had been enrolled or 
 registered on the day of the date thereof: nevertheless, 
 without prejudice to the validity of any assurances there- 
 tofore made, or thereafter to be made, to correct or supply 
 any defects arising from the want of such enrolment or 
 registry. 
 
 And after reciting that for the purpose of redeeming or 
 (*)purchasing land-tax, or of raising money for reimbursing 
 the^ stock or money previously transferred or paid as the 
 consideration for redeeming land-tax, or "for purchasing 
 assignments of land-tax, or for some other purposes for 
 which lands and hereditaments were authorized to be 
 sold under the powers and provisions of the acts thereto- 
 fore passed, relating to. the redemption and sale of the 
 land-tax or some of them, some sales of lands and other 
 hereditaments had been made, the title to which, as 
 derived under such sales, might be considered void or 
 voidable, or liable to be impeached at law or in equity, 
 or be liable to objections calculated to impede the free 
 alienation thereof, it was further enacted(o), that all sales 
 made, and all conveyances executed, of lands or other 
 hereditaments sold for the purpose of redeeming or pur- 
 chasing land-tax, or for raising money as thereinbefore 
 was mentioned, provided such conveyances should appear 
 to have been executed under the authority and with the 
 consent and approbation of the respective commissioners 
 
 (o) Sec. 25.. 
 
 (*2o5)
 
 ^292 ^^ PROTECTION FROM 
 
 for the time being authoihzed to consent to sales made 
 under the powers of the said acts respectively, or any of 
 them, should be and the sam<^ were thereby ratified and 
 confirmed from the respective periods at which such sales 
 and conveyances were respectively made and executed, 
 and the same should be from such respected periods valid 
 and effectual, and be considered as conferring upon the 
 respective purchasers of the lands and hereditaments 
 therein respectively comprised, and all persons claiming 
 by, from, through, under or in trust for them respectively, 
 a good and valid title, both at law and in equity, to such 
 lands and hereditaments, to all intents and purposes 
 whatsoever ; any thing in the said acts, or any law or 
 custom to the contrarv notwithstanding;. 
 
 (*)And it was further enacted(/?), that every person 
 who might conceive himself or herself injured or prejudic- 
 ed by any sales thereby confirmed, should at any time within 
 five years aftep the passing of the said act, if such persons 
 should not be under any legal disability, but if he or she 
 should be under any legal disability, then within five 
 years next after such disability should be removed, be 
 entitled to relief either by the decree of a court of equity, 
 on a bill filed, or by a summary application to a court of 
 equity by petition, and by the usual proceedings before 
 the Master or other proper officer of the court on such 
 petition, and an order thereupon, and should under such 
 decree or order have an annual rent-charge to such 
 amount, and for and during such term or estate, and 
 charged upon such lands or other hereditaments, as such 
 court should order or direct; and the said court should 
 have full power to adjust the proportion and terms of such 
 annual rent-charge between different claimants, and to 
 direct the settlement of such annual rent-charge in such 
 manner as the said court should, under the circumstances 
 
 (p) Sec. 26. 
 (*256) 
 
 I
 
 OF PROTECTION FROM CROWN DEBTS. 
 
 293 
 
 of the case, in its discretion, think proper ; and should 
 also have power to make such order respecting the costs 
 of the parties as the court should think lit. 
 
 SECTION IX. 
 Of Protection from Crown Debts. 
 
 Formerly, where the seller was a debtor or accountant 
 to the Crown, the title was not good until a quietus was 
 entered up on record. And a purchaser could* not be com- 
 pelled to take the title, although the Crown consented to 
 (*)the payment of the purchase-money into the Exchequer 
 on account of the deht(q). 
 
 To obviate this difficulty, it was by the 10th section 
 of an act of the 1st and 2d year of Geo. 4, c. 121, 
 intituled, " An act to alter and abolish certain forms 
 and proceedings in the exchequer and audit-office rela- 
 tive to public accounrants, and for making further provi- 
 sions for the purpose of facilitating and expediting the 
 passing of public accounts in Great Britain, and to render 
 perpetual and amend an act, passed in the 54th year of 
 his late Majesty, for the effectual examination of the 
 accounts of certain colonial revenues," enacted, that 
 in all cases where any estate belonging to a public 
 accountant shall be sold under any writ of extent, or 
 any decree or order of the Courts of Chancery or Ex- 
 chequer, and the purchaser or purchasers thereof or of 
 any. part thereof shall have paid his, her or their pur- 
 chase-money into the receipt of his Majesty's Exchequer, 
 
 (9) Brakespear v. Innes, V. C. Master of the Rollo, MS. 
 
 (*257)
 
 294 ^^ PROTECTION FROM CROWN DEBTS. 
 
 an entry of such payment shall be made by the com- 
 missioners for auditing the public accounts in the de- 
 clared account of such public accountant, and from and 
 after such payment and entry as aforesaid, such pur- 
 chaser or purchasers, his, her and their heirs and assigns, 
 shall be wholly exonerated and discharged from all fur- 
 ther claims of his Majesty, his heirs or successors, for or 
 in respect of any debt arising upon such declared ac- 
 count, although his, her or their purchase-money shall 
 not be sufficient in amount to discharge the whole of the 
 said debt. 
 
 This provision was made to meet a particular case, and 
 is therefore by no means a general remedy. In the case 
 alluded to, the debtor was dead, and there was a declared 
 account against him, which, as he was dead, could not 
 be increased by further receipts. Upon a petition by the 
 (*)seller after the act. Sir Thomas Plumer, Master of the 
 Rolls, ordered the seller to pay the costs of the petition, 
 and of the payment into the Exchequer, and of the entry 
 being made by the commissioners. The purchaser 
 claimed an abatement for dilapidations, and it was sub- 
 mitted whether the payment of the balance would satisfy 
 the act. The Master of the Rolls held that it would. 
 
 With respect to the general operation statutes passed 
 in favor of purchasers, it may be laid down as a rule, 
 that equity will not permit them to be taken advantage of 
 where the purchasers have notice of the incumbrance or 
 deceit which the statutes were intended to guard them 
 against, because qui scit se decipi non decipitur, and the 
 resolutions respecting voluntary settlements must be con- 
 sidered anomalous. 
 
 (*268)
 
 OF EQUITABLE RELIEF AND PROTECTION. C)Q^ 
 
 SECTION X. 
 
 Of Equitable Relief and Protection. 
 
 1. Thus have we taken a cuisorj view of the several 
 statutes passed for the relief or protection of purchasers. 
 The relief and protection afforded to purchasers by the 
 rules of equity form the next branch of our inquiry. 
 
 A court of equity acts upon the conscience, and as it 
 is impossible to attach any demand upon the conscience 
 of a man vvho has purchased for a valuable* consideration 
 bojia fide, and without notice of any claim on the estate, 
 such a man is entitled to the peculiar favor and protec- 
 tion of a court of equity. 
 
 And it has been laid down as a general rule, that 
 a purchaser bona fide, and for a valuable consideration, 
 without notice of any defect in his title at the time he 
 made his purchase, may buy or get in a statute, mortgage, 
 (*)or any other incumbrance (and that although it is 
 satisfied) ; and if he can defend himself at law by any 
 such incumbrance, his adversary shall never be aided in 
 a court of equity for setting aside such incumbrance ; for 
 equity will not disarm a purchaser, but assist him ; and 
 precedents of this nature are very ancient and numerous, 
 viz. where the Court hath refused to give any assistance 
 against a purchaser, either to an heir, or to a vendor, or 
 to the fatherless, or to creditors, or even to one purchaser 
 against another(r)(407). 
 
 (r) Basset v. Nosworthy, Finch, 102; Jerrard v. Saunders, 2 Ves. 
 jun. 454. See Anon. 2 Cha. Ca. 208 ; Hithcox v. Sedgwick, 2 Vern. 
 156 ; JGoleborn v. Alcock, 2 Sim. 662. ' 
 
 (407) See Fitzsimmons v. Ogden, 7 Crancb, 2. Duvall v. Bibb, 4 
 Hen. & Munf. 113. 
 
 (*259)
 
 296 ^^ EQUITABLE RELIEF 
 
 And the favor and protection of a court of equity is 
 extended to a purchaser, not only where he has a prior 
 legal estate, but also where he has a better right to call 
 for the legal estate than any other person(5)(408). 
 
 A purchaser cannot, however, protect himself by taking 
 a conveyance or assignment of a legal estate from a trus- 
 ^e in whom it was vested upon express trusts(i)(409). 
 
 The Court of Chancery will not supersede a commission 
 of bankruptcy even for a fraud, where there have been pur- 
 chasers under it(M) ; for a commission being superseded, 
 all falls with h(x). So equity will not relieve against 
 a bona fide purchaser without notice, although the remedy 
 be gone by accident(2/), nor will it compel him to dis- 
 cover any writings which may weaken his title(2) ; or 
 (*)take any advantage from him by which he may protect 
 
 («) See 2 Vern. 600 ; Willoughby r. Willoughby, 1 Term Rep. 
 763; Blake v. Sir Edward Hungerford, Prec. Cha. 158; Charlton v. 
 Low, 3 P. Wms. 328. Ex parte Knott, 11 Ves. jun. 609; Shine v. 
 Gough, 1 Ball & Beatty, 436. 
 
 {i) Saunders v. Dehew, 2 Vern. 271 ; 2 Freeni. 123. 
 
 («) Ei: parte Edwards, 10 Ves. jun. 104 ; ex parte I.eman, 13 Ves. 
 jun, 271 ; ej? paWe Rawson, 1 Ves. & Bea. 160; ex parte Lautour, 1 
 Mont. «fc Bligh. 89. 
 
 {x) See 1 Ves. & Bea. 66. 
 
 {y) Harvy v. Woodhouse, Sel. Cha. Ca. 80 ; Bell v. Cundall, Ambl. 
 101. 
 
 (2) Bishop of Worcester v. Parker, 2 Vern. 255 ; Hall v. Adkin- 
 son, 2 Vern. 463 ; 1 Eq. Ca. Abr. 333, pi. 64 ; Millard's case, 2 
 Freem. 43 ; Sir John Burlace v. Cook, 2 Freem. 24 ; Jerrard v. Saun- 
 ders, 2 Ves. jun. 454. 
 
 (408) Of two equitable incumbrancers, she who hath the preferable 
 right to call for the legal estate, is entitled to preference ; though he 
 hath not actually got it in, nor obtained an assignment, nor even posses- 
 sion of the deed conveying the outstanding legal title ; and though his 
 lien is subsequent in date to the other incumbrance. Williamson v. 
 Gordon's Exrs. 6 Munf. 257. 
 
 (409) See Murray v. Ballou, 1 Johns. Ch. Rep. 566, 674, 676. 
 (*260)
 
 AND PROTECTION. qq^ 
 
 himself at law, or obtain terms of his antagonist(«) ; 
 neither will equity give any person an advantage over(6) 
 a purchaser, or any assistance against him(c) ; and his 
 having taken a collateral security for the title will not 
 make his case worse(//)(I), unless the purchase by the 
 vendor was fraudulent, in which case it would have con- 
 siderable weight with a court of equity(e). 
 
 The rules on this subject have gone so far, that a pur- 
 chaser bona fide, for valuable consideration, and without 
 notice, has been allowed to take advantage of a deed 
 which he stole out of a window by means of a ladder(X), 
 and of a deed obtained by a third person without consi- 
 deration, and by fraud(o-). 
 
 If a man purchase for valuable consideration, without 
 notice from a disseisor, and the disseisee is a trustee for 
 another, although the general rule is, that a trustee is 
 bound to convey, upon request, to his cestui que trust, 
 yet if in this case the trustee refuse to convey the legal 
 (*)estate to the cestui que trust, or to suffer the latter to 
 bring an ejectment in his (the trustee's) name, a court of 
 
 (c) Walwynn r. Lee, 9 Yes. jun. 24. 
 
 (b) BechinuU v. Arnold, 1 Vern. 354. 
 
 (c) See Graham v. Graham, 1 Ves. 262. 
 
 (tZ) Lowther r. Carleton, For. 187, S. C. MS. See, however, White 
 V. Stringer, 2 Lev. 105 ; Jennings v. Selleck, 1 Vern. 467. 
 
 (e) How V. "VVeldon, 2 Ves. 516. 
 
 (/) See a case cited in Sanders v. Dehgne, 2 Freem. 123 ; and 
 Siddon r. Charnells, Bunv. 298 ; and see Fagg's case, cited 1 Vern. 
 52, and reported in 1 Cha. Ca. 68, nomine Sherly r. Fagg, where the 
 circumstance of theft does not appear. 
 
 {g) Harcourt v. Knowel, 2 Vern. 159, cited. 
 
 (I) In Lowther v. Carleton, the bond of indemnity was given by the 
 executors of the first purchaser who bought without notice to the 
 second purchaser, who bought of them with notice, and he was allow- 
 ed to avail himself of the want of notice in the first purchaser. 
 
 VOL. Ti. 38 (*261)
 
 rtQO OF EQUITABLE RELIEF 
 
 equity will not compel the trustee to do so, because it 
 would in effect be granting relief against a purchaser(/0. 
 This case strongly marks the favor shown to a bo7ia fide 
 purchaser. 
 
 Equity will relieve a bona fide purchaser without notice 
 from ancient statutes, if there be no direct proof on either 
 side, and will decree them to be cancelled(/). 
 
 And this rule extends to mortgages, and all incum- 
 brances which have lain dormant for a long time, and no 
 demand made in respect thereof (A;)(410). 
 
 So equity will relieve a purchaser for valuable con- 
 sideration against a defective execution of a power, in 
 the same manner as he will be relieved against a defective 
 surrender of copyholds(/)(411). 
 
 But if a devisee, having an estate for life, with a power 
 to dispose of the inheritance hy loill, sell the estate in his 
 life-time, equity cannot relieve the purchaser, although 
 by the effect of accident he has got the legal estate in 
 fee-simple; for, in a case like this, the testator cannot 
 be understood to mean that the devisee should so execute 
 the power. The intention is, that he should give by 
 will, or not at all ; and it is impossible to hold, that the 
 execution of an instrument or deed, which, if it availed to 
 
 {h) Turner v. Back, 22 Vin. p. 21, pi. 5, where the cestui que fnisf 
 claimed under a voluntary settlement. 
 
 (i) Burgh V. Wolf, Toth. 226 ; Smith v. Rosewell, ibid. 247 ; and 
 see ibid. 224. 
 
 {k) See Abdy v. Loveday, Finch, 260 ; Sibson v. Fletcher, 1 Cha. 
 Rep. 32. 
 
 (4) Vide infra ; and see Chapman v. Gibson, 3 Bro. C. C. 229 ; 
 Treat, of Powers, ch. 6. 
 
 (410) See Reigal v. Wood, 1 Johns. Ch. Rep. 406, et seq. In this 
 case, however, there was fraud, in addition to the staleness of the 
 claim. 
 
 (411) See Roberts V. Stanton, 2 Mimf. 129.
 
 AND PROTECTION. OQQ 
 
 m^y purpose, must avail to the destruction of that power 
 the testator meant to remain capable of execution to the 
 moment of the devisee's death, can be considered, in 
 (*)equity, an attempt in or towards the execution of . the 
 povver(m). 
 
 The mistake or ignorance of any of the parties to a 
 conveyance of their rights in the estate will not turn to 
 the prejudice of a bona fide purchaser for a valuable con- 
 side rat ion (?i). 
 
 If, however, upon a purchase, any person is required to 
 join to obviate an objection to the title, and the objection 
 is stated in such a manner as not to convey full informa- 
 tion, the purchaser cannot avail himself of the instrument 
 iigainst the person executing it(o). 
 
 But if a person having only a general statement that 
 there are objections to a title which his concurrence will 
 obviate, upon that communication executes an instrument 
 and conveys, there is nothing to affect the conscience of 
 the purchaser, so that the person conveying could ever 
 get the estate back. If he does not ask the nature of the 
 objections, he determines against himself as to any ques- 
 tion between him and the purchaser, if the deed does not 
 show that the objections were withheld from him(p). 
 
 If a person having a right to an estate permit or en- 
 courage a purchaser to buy it of another, the purchaser 
 
 (m) Per Lord Eldon ; Reid v. Shergold, 10 Ves. jun. 370. The 
 opinions of several eminent lawyers were taken on this case, before it 
 went into court, and they all agreed that the case was desperate. In 
 fact, it was owing to those discussions that the plaintiff in this cause 
 knew of his claim, and recovered the estate. Vide supra, vol. i. p. 12. 
 
 («) Maiden v. Menill, 2 Atk. 8. 
 
 (o) Lord Braybroke v. Inskip, 8 Ves. jun. 417. 
 
 (/)) Lord Braybroke v. Inskip, ubi sup. See 3 Swanst. 73. 
 
 (*262)
 
 QQQ OP EQUITABLE RELIEF 
 
 shall hold it against the person who has the r\ght(q)(M2), 
 although covert(r), or under age(.?). 
 
 C*)And the same rule prevails even where the represen- 
 tation is made through a mistake, if the person making 
 it might have had notice of his right(/)(I). 
 
 So where a person, intending to buy an estate, inquires 
 of another whether he has any incumbrance on the estate, 
 and states his intention to buy it, if the person of whom 
 the inquiry is made deny the fact, equity will relieve the 
 purchaser against the incumbrance(w). Again, where 
 a purchaser of an equitable right inquires of the trustee 
 of the legal estate, whether he knows of any incumbrance, 
 and he answers in the negative, if it turn out that he had 
 notice of any charge, he will be answerable to the pur- 
 chaser, although he plead forgetfulness in excuse(.r). 
 
 But a person having an incum[)rance upon an estate is 
 
 (q) Hobs V. Norton, 2 Cha. Ca. 128; Hanning- «. Ferrers, 2 Eq. 
 Ca. Abr. 356, pi. 20 ; and see 1 Freem. 310 ; 16 Yes. jun. 253. 
 
 (r) Savage v. Forster, 9 Mod. 35 ; and see Evans v. Bicknell, 6 
 Ves. jun. 174. 
 
 (s) Watts V. Creswell, 9 Vin. 415; 9 Mod. 38. 96, 97 ; 4 Bro. C. 
 C. 607, n. ; Clare v. Earl of Bedford, 13 Vin. 536 ; and see 3 Cha. 
 Ca. 85. 123 ; Cory v. Gerteken, 2 Madd. 46. 
 
 (t) Pearson v. Morgan, 2 Bro. C. C. 388* ; see also Teasdale v. 
 Teasdale, Sel. Cha. Ca. 59 ; but observe the circumstances of that case. 
 
 (m) Supra, vol. i. p. 9. 
 
 (a?) Burrowes v. Lock, 10 Ves. jun. 470 ; supra, vol. i. p. 5. 
 
 (I) Sed qu. this as a general rule, unless there be fraud ? See Hay- 
 croft V. Creasy, 2 East, 92 ; Tapp v. Lee, 3 Bos. & Pull. 367 ; and 
 see Holmes «. Custance, 12 Ves. jun. 279. 
 
 (412) See Green v. Price, 1 Munf. 449. Taijlor v. Cole, 4 Munf. 
 351 ; and see Pollard v. Carhvright, 2 Hen. &. Munf. 116. JJooe ^J- 
 Harrison v. Pierce, 1 Wash. 217. Applehtiry v. ^tithony's Exrs. 1 
 Wash. 289. JViven v. Belknap, on appeal, 2 Johns. Rep. 673. 
 Livingston v. Byrne, on appeal, 1 1 Johns. Rep. 555. See also, Brinck- 
 erhoff v. Lansing, 4 Johns. Ch. Rep. 65, Stoors v. Barker, 6 Johns. 
 Ch. Rep. 166. See Wend^ell v. Rensselaer, 1 Johns. Ch. Rep. 344. 
 
 (*263) 
 
 II
 
 AND PROTECTION. 
 
 301 
 
 not bound to give notice of it to any person whom he 
 knows to be in treaty for the purchase of tl>e estate(»/). 
 
 If a purchaser take a defective conveyance from the 
 vendor, equity will compel the vendor and Jiis heirs, and 
 all other persons claiming under him by act of law, as 
 assignees of a bankrupt, althoiigli without notice^ and 
 even persons claiming as purchasers for valuable con- 
 sideration, if with notice, to make good the convey- 
 ance(2)(413). 
 
 (y) Osborn v. Lea, 9 Mod. 96. 
 
 (2) Jaques v. Huntly, 1 Cha. Rep. 5, cited ; Taylor v. V.'heeler, 2 
 Yern. 564 ; Morse v. Faulkner, 1 Anstr. 11 ; and see 2 Ves. jun. 151 ; 
 6 Ves. jun. 745 ; 11 Ves, jun. 625. See vol. ii. 103, supra. 
 
 (4\Z) See Somerville v. Trueman, 4 Har. & M'Hen. 43. J^P Wil- 
 liams V. JVtsley, 2 Serg. & Rawle, 515. 
 
 In the language of Chief Justice Tilghman " when articles of agree- 
 ment are entered into, by which a conveyance is covenanted to be 
 made, and afterwards a conveyance is made, and accepted, which differs 
 in some respects from the articles, the deed of conveyance, which is 
 the consummation of the agreement, shall be taken for the ultimate 
 intent of the parties, and prevail over the articles. But if the deed is 
 accepted under a misapprehension, occasioned by the fault of the plain- 
 tiff", however strict the law might be, they would be entitled to relief in 
 equity," Crotzer r. Russell, 9 S. & R. 78. But in Brown v. Moorhead, 
 8 ib. 569, where the article of agreement stipulated for the conveyance 
 of a tract of land, and also to convey " all the right, title, claim and in- 
 terest of other persons in another tract of land ; held, that in an action 
 lor the purchase money, the defendant might show by the ai tides what 
 th<s agreeinent was, although a deed had been given and accepted of 
 the hi>st tract; because that was but a fulfilment in part of what the 
 vendor ha<3 covenanted to do by the articles." Without this evidence, 
 the Court and ^ury would be unable to decide, what would be the equity 
 of the case between the parties. 
 
 So, in Frederick v. Campbell, 14 S. & R. 293, which was an action 
 on a bond given for the consideration of land contracted for by articles, 
 which was stipulated to contain 225 acres ; and the deed subsequently 
 executed described the land by boundaries, culling it 226 acres ; held, 
 that it was competent for the defendant to show In evidence any decep- 
 tion practised in the outset of the transaction. He was admitted to 
 prove that at the execution of the articles, the plaintiff'asserted that the 
 land contained 225 acres, and said he would make his assertion good.
 
 gQQ OF EQUITABLE RELIEF 
 
 (*)So a purchaser, by a defective conveyance, will 
 be rebeved against persons who did not consider the hind 
 as their original or primary security ; although they may 
 have obtained an advantage at law(a). 
 
 And if a man sell an estate to which he has no title, 
 and after the conveyance acquire the title, he will be 
 compelled to convey it to the purchaser. 
 
 But it seems to have been considered that this is 
 a personal equity attaching on the conscience of the 
 party, and not descending with the land ; and therefore, 
 that if the vendor do not in his life-time confirm the title, 
 and the estate descend to the heir at law, he will not be 
 bound by his ancestor's contract(6). This opinion, how- 
 ever, deserves great consideration. 
 
 Where the conveyance is not perfected with the so- 
 lemnities positively required by an act of parliament, as 
 in the case of the ship-registry acts, equity cannot relieve, 
 as it would be against the policy of the acts, unless per- 
 haps there were direct fraud, in which case it should 
 seem that equity would relieve(c)(414). 
 
 It has been said, that every person who takes an assign- 
 ment of a chose in action gives personal confidence that 
 there is no lien upon it(flf). Upon the purchase of a chose 
 in action, or of any equitable right, it is the invariable 
 practice of the Profession to require notice of the sale to 
 be given to the trustee. This of course binds his con- 
 
 («) Burgh r. Francis, Finch, 28 ; and see Gilb. For. Rom. -^^S- 
 (6) Morse v. Faulkner, 1 Anstr. 11 ; Carleton v. LeigKon, 3 Mer. 
 p. 667. See Bensley v. Burdon, 2 Sim. & Stu. &^Q, upon appeal 
 affirmed ; but the principal point upon estoppel has since been properly 
 overruled. 
 
 (c) Speldfr. Lechmere, 13 Ves. jun. 588: tx parte Yallop, 15 Ves. 
 jun. 60. See ex parte Wright, 1 Rose, 308. 
 
 (d) Per Lord Thurlow, in casu Davies v. Austen, 1 Ves. jun. 247. 
 
 (414) See Astor v. Wells, 4 Wheat. 466. 
 (*264)
 
 AND PROTECTION. 
 
 303 
 
 science. And notwithstanding the general rule that, 
 with respect to equitable rights, qui prior est tempore 
 (*)potior est jure(e}, it seems probable that equity would 
 prefer a subsequent purchaser who had given a proper 
 notice to the trustee to a prior purchaser who had neg- 
 lected to do so. At least there is a case(/) which seems, 
 in some measure, to authorize this conclusion(415). 
 
 Since these observations weve published, this point has 
 been elaborately discussed in several cases. Sir Thomas 
 Plumer held that priority in time must prevail, and that 
 mere neglect of notice was not sufficient to postpone a 
 purchaser. In order to deprive him of his priority, it 
 was necessary that there should be such laches as in a 
 court of equity amounted to fraud(g). This decision the 
 learned Judge forgot (and the bar was not aware of it) 
 upon the discussion in two subsequent cases(^), in which 
 the same learned Judge decided that the purchaser who 
 had alone made inquiry, and given notice, was to be pre- 
 ferred over the prior purchaser, although he had simply 
 neglected to give notice. And these decisions were 
 affirmed upon appeal by the Lord Chancellor ; so that 
 a prior purchaser who has not given notice will be post- 
 poned to a subsequent purchaser who has. 
 
 It may be laid down as a general rule, that a purchaser 
 of a chose in action(/)(416), or of any equitable Ut\e(k) 
 
 (e) See Tourville v. Naish, 3 P. Wms. 307 ; and see 2 P. Wms. 
 495 ; 15 Ves. jun. 354 ; 2 Taunt. 415. 
 
 (/) Stanhope v. Earl Verney, Butler's n. (1) to Co. Litt. 290, b. ; 
 and see 1 Ves. 367 ; 9 Yes. jun, 410 ; but see Frere v. Moore, S Pri. 
 475, the facts of which do not appear to have been ascertained. 
 
 (g) Cooper V. Tynman, 3 Russ. 60. 
 
 (/i) Dearie v. Hall, Loveridge v. Cooper, 3 Russ. 1. 
 
 (i) Davies v. Austen, nbi sup. ; Turton v. Benson, 2 Vern. 764 ; 
 Priddy v. Rose, 3 Mer. 86 ; Hamilton r. Stokes, 4 Price, 161. 
 
 {k) Whitfield v. Fausset, 1 Ves. 387. 
 
 (415) See Berry \. Mutual Ins. Co. 2 Johns. Ch. Rep. 603, 608. 
 
 (416) See Murray v. Sylburn, 2 Johns. Ch. Rep. 443. JS^orton v. 
 
 (*266)
 
 gn^ OF EQUITABLE RELIEF 
 
 (417), must always abide by the case of the person from 
 whom he buys, and will be entitled to all the remedies of 
 the seller(/). And yet as we have seen(m), there may be 
 (*)a case in which a purchaser of a chose in action, mere- 
 ly by sustaining that character,. will be in a better situa- 
 tion than the person was of whom he bought. And it 
 seems, that where a person purchases a specific legacy, de- 
 livered to the legatee by the executor, if there is a defi- 
 ciency of assets, the creditors must follow their demand 
 in reasonable time, or equity will not assist them, other- 
 wise legacies would be eternally locked up, and creditors 
 encouraged in their laches, and to call on purchasers of 
 legacies to refund at a great length of time(w). 
 
 So if trustees suffer a tenant for life of a renewable 
 leasehold to enjoy all the profits in breach of a trust 
 reposed in them to renew out of the rents and profits, the 
 assets of the tenant for life will be applicable in the first 
 instance to their indemnity, and a purchaser from the 
 tenant for life of his life-interest, will also, it seems, be 
 answerable to the person for whose benefit the renewal 
 ought to have been made. But, as between the trustees 
 and the purchaser, the latter is not primarily answerable. 
 
 (/) See ex parte Lloyd, 17 Ves. jun. 245. 
 
 (m) George v. Milbanke, 9 Ves. jun. 190 ; supra, vol. ii. p. 169. 
 
 (n) Cholmondley v. Orford, Ch. H. T. 1 58, MS. 
 
 Rose, 2 Wash. 233, 254. Wheeler v. Hughes, 1 Dall. 28. See also, 
 2 Yeates, 23. Livingston v. Dean, 2 Johns. Ch. Rep. 479. Clule v. 
 Robinson, on appeal, 2 Johns. Rep. 595. Livingston v. Hubbs, 2 
 Johns. Ch. Rep. 512. Rodriguez v. Haffernan, 5 Johns. Ch. Rep. 
 417; And see Chamberlain v. Gorham, 20 Johns. Rep. 144. Bank 
 of JViagara v. M'Cracken, 18 Johns. Rep. 493. Furman v. Haskin, 
 2 Caines' Rep. 369. But an assignee will not be subject to any latent 
 equity residing in a stranger, against the assignor. Murray v. Syl- 
 burn ; and Livingston v. Dean, ut supra. See Wilcox v. Calloumy, 1 
 Wash. Rep. 41. 
 
 (417) See Porter v. Breckenridge, Hardin, 21. Murray v. Gou- 
 verncur, 2 Johns. Cas. 438. 
 
 (*266)
 
 AND PROTECTION. ^/^r 
 
 Ifthej permit the tenant for life to apply to his own use 
 all the rents and profits, and abstain from performing the 
 trust, they cannot contend that it was the purchaser's 
 duty to withhold any part of the rents and profits, or the 
 consideration that came in place of theni(o). 
 
 Wiiere a purchaser, after th(i conveyance, or even he- 
 fore the conveyance, in prospect of the articles for sale 
 being carried into execution, has laid out money in last- 
 ing improvements, there are but few cases in which he 
 will not be allowed for them, in case the aid of a court of 
 equity is required to relieve against the purchaseQ?)(418). 
 
 And even supposing the Court to be unwilling to make 
 (*)an allowance for repairs and improvements, yet if an 
 account of rents and profits is to be taken, and the plaintiff 
 will not accept the account, according to the value of the 
 estate when the purchaser entered, but insists to have the 
 account taken according to the present value, the Court 
 will compel him to make an allowance for repairs and 
 improvements(^). 
 
 li, however, a man has acted fraudulently, and is con- 
 scious of a defect in his title, and with that conviction in 
 his mind expends a sum of money in improvements, he 
 is not entitled to avail himself of it(419). If a different 
 rule should prevail, it would certainly, as Lord Clare re- 
 
 (o) Ld. Montford v. Ld. Cadogan, 17 Ves. jun. 485. 
 
 (p) Edlin r. Batalay, 2 Lev. 152; Peterson v. Hickman, 1 Cha. 
 Rep. 3, cited ; Whalley v. Whalley, 1 Yern. 484 ; Savage v. Taylor, 
 For. 234 ; Baugh v. Price, 1 Wils. 320 ; ex parte Hughes, 6 Ves. jun. 
 617; ex parle James, 8 Ves. jun. 337; Browner. Odea, 1 Scho. & 
 Lef. 115; and see 9 Mod. 412; Barnard. Cha. Rep. 460; 1 Yern. 
 1.59; Shine v. Gough, 1 Ball & Beatty, 444. 
 
 {q) Thomlinson r. Smith, Finch, 378. 
 
 (418) See Witherspoon v. Andersons Exis. 3 Des. 245. See Parlr- 
 urst V. Fan Cortlandt, 1 Johns. Ch. Rep. 273. S. C on appeal, 14 
 Johns. Rep. 15. Benedict v. Ltjnch, 1 Johns. Ch. Rep. 370. 
 ■ (419) See Gillespie v. .Moon, 2 Johns. Ch- Rep- 5^5, 602. 
 VOL. II. 39 (*267)
 
 QQg» OF EQUITABLE RELIET 
 
 marked, fully justify a proposition once stated at the bar 
 of the Court of Chancery in Ireland, that it was a com- 
 mon equity to improve the right owner out of the posses- 
 sion of his estate. However, if the sums are large, that 
 circumstance may influence the Court in decreeing an 
 account from the time of filing the bill only, and not 
 from the time of taking possession(r). 
 
 But if the aid of a court of equity is not required, and 
 a person can recover the estate at law, equity, unless 
 there be fraud, cannot, it is conceived, relieve the pur- 
 chaser on account of money laid out in repairs and 
 improvements ; but must dismiss a bill for that purpose 
 with costs(5). 
 
 Where a person purchases with notice of an incum- 
 brance, although he pay off some to which that in- 
 cumbrance was posterior, yet he lets it in as the first 
 (*)incumbrance on the estate, and cannot, as against that 
 incumbrance, claim the benefit of the prior incumbrances 
 which he has paid off(t). 
 
 And if a mortgagee would avail himself of prior 
 incumbrances which he pays off against subsequent sub- 
 sisting ones, he should actually keep on foot those which 
 he pays off, and not allow them to be extinguished(i(). 
 The distinction is a very subtle one. 
 
 It seems, that where two persons claim a reversion, 
 to which only one can be entitled, a bill will lie to per- 
 
 (r) Kenny v. Browne, 3 Ridgw. P. C. 518. 
 
 (s) See Needier v. Wright, Nels. Clia. Rep. 57 ; but see Peterson 
 V. Hickman, 1 Cha. Rep. 3, cited. This case, probably, turned on the 
 fraud in the wife standing by while the improvements were made, with- 
 out giving notice of her claim to the tenant. 
 
 {t) Toulmin v. Steere, 3 Mer. 210, This case was appealed from ; 
 but the appeal was stopped by a relation of the appellants, who chose to 
 pay off the incumbrance. 
 
 («) Parry v. Wright, 1 Sim. & Stu. 369 ; affirmed upon appeal by 
 the L. C, 6 Russ. 142, sed qu. 
 
 (*268)
 
 AND PROTECTION. OQ-y 
 
 petuate testimony, although both of them are purchasers, 
 or only one of them is a purchaser(.'r) ; for such a bill 
 calls for no discovery from the defendant, but merely 
 prays to secure that testimony, which might be had at 
 that time if the circumstances called for it(I), 
 
 n. Thus have we seen how peculiarly a bona fide 
 purchaser without notice is favored and protected by 
 equity. But if a purchaser have notice of any claim, or 
 incumbrance, his conscience is affected ; and a court of 
 equity will then not only refuse to interfere in his favor, 
 but will assist the claimant or incumbrancer in esta- 
 blishing his claims against him ; his having given a con- 
 sideration will not avail him ; for, as Lord Hardwicke 
 observes, he throws away his money voluntarily, and of 
 his own free will(y)(420). And it may be laid down as 
 (*)a general rule, that a purchaser with notice is in equity 
 bound to the same extent, and in the same manner, as the 
 person was of whom he purchased(z)(421). Thus, sup- 
 
 {x) See Lord Duisley v. Fitzhaidinge, 6 Ves. jun. 251. 
 
 < y) See 3 Atk. 238 ; Fitz. T. Subpoena, pi. 2. 
 
 {z) Winged v. Lefeburj, 1 Eq. Ca. Abr, 32, pi. 43 ; Jackson's 
 ■case, Lane, 60 ; Gore r. Wiglesworth, cited, ibid ; Earl Brook v. 
 Bulkeley, 2 Ves. 498 ; Taylor v. Stibbeii, 2 Vcs. jun. 437; Lord 
 Verney v. Carding, 1 Scho. & Lef. 345, cited ; Crofton v. Ormsby, 2 
 Scho. & Lef. 583 ; Dunbar v. Tredennick, 2 Ball & Beat. 304. 
 
 (I) But note, the point was not settled , and it does not seem quite 
 clear what determination it would receive ; as retaining such a bill is 
 evidently granting relief against a purchaser. 
 
 (420) See Murrmj v. Finsler, 2 Johns. Ch. Rep. 155, 157. 
 
 (421) See Frost v. Beekman, 1 Johns. Ch. Rep. 288, 301. J\Iuy~ 
 ray v. Ballon, 1 Johns. Ch. Rep. 556. Champion v. Broicn, 6 Johns. 
 Ch. Rep. 398, 403. Shepard v. M'Evers, 4 Johns. Ch. Rep. 136. 
 Simoii's Les. v. Gibson, 1 Yeates, 291. Davison v. Waite, 2 Munf. 
 527. And see JVillis^ Les. v. Bucher, 2 Binn. 455. Cuyler v. Bradt, 
 2 Caines' Cas. in Error, 32G. fVilcox v. Calloway, 1 Wash. Rep. 41. 
 
 (*269)
 
 QQO OF EQUITABLE UELIEF 
 
 pose trustees (ov preserving contingent remainders to join 
 in destroying then), and to convey the estate to a pur- 
 chaser, if the purchaser buy for a valuable consideration, 
 and without notice, he cannot be affected. But if he buy 
 with notice of the trust, although for a valuable consider- 
 ation, he must convey the estate to the uses of the settle- 
 ment(a)(422). 
 
 But we may here observe, that it is at last settled, that 
 trustees joining in a recovery after the first tenant in tail 
 is of age, is not a breach of trust, and therefore a pur- 
 chaser may safely buy under the title acquired by tlie 
 recovery(6). This point cannot arise upon new titles, 
 for, as we have seen, lines and recoveries are abolished, 
 and the protector of a settlement cannot commit a breach 
 of trust in joining with the tenant in tail iu barring the 
 remainders(c). 
 
 A purchaser will be bound, even at law, by a parol 
 agreement for a lease not within the statute of frauds, the 
 granting of which constituted part of the consideration, 
 although it be not mentioned in the agreement for pur- 
 chase, and the rent be not fixed(c^). 
 
 But where the consent of a person is essential to the 
 validity of a lease agreed to be granted, and he himself 
 purchases the inheritance, although with full notice, yet 
 he will not be bound by the agreement. 
 
 (*)This was decided in a recent case, where a copy- 
 holder granted a lease to one Luffkin for a year, and so 
 from year to year, if the lord would give a licence. The 
 
 (o) Mansell v. Mansell, 2 P. Wms. 678. 
 
 (6) Biscoe r. Perkins, 1 Ves. & Bea. 485. The Lord Chancellor 
 has since decided the same point in the same way. 
 
 (c) 3 & 4 W. 4, c. 74 ; stipra, vol. i. 193, 194, 356, 359, 380; li. 
 246. 
 
 (d) Dean v. Cartwright, 4 East, 29. 
 
 (422) See Murrmj v. Finsfer, 2 Johns. Ch. Rep. 155. 
 
 (*270)
 
 I 
 
 AND PROTECTION. oqq 
 
 lord of the manor purchased the reversion himself, and 
 took a surrender in the name of a trustee. The terms of 
 the demise were correctly stated in the abstract of the 
 title ; the agreement contained an exception of all subsist- 
 ing leases (if any there were), and in a deed from the ven- 
 dor to the purchaser's trustee, theie was an exception in 
 the covenant against incumbrances " of the several and 
 respective subsisting lease or leases, or agreements for 
 leases, under which the present tenants now hold the 
 premises." After the purchase, the lord gave notice to 
 his trustee, that he would not grant any licence to any 
 copyholder of his manor to demise. The trustee then 
 gave notice to Luifkin to quit, and brought an ejectment, 
 in which he recovered, the Court of King's Bench being 
 of opinion that the lease did not operate as a lease for 
 fourteen years(e). Then Luffkin tiled a bill against the 
 trustee and the lord for a specific performance, on the 
 ground of the lord having notice of the lease, and of its 
 being excepted in the contract, &c. A case was directed 
 to the Court of Common Pleas, who held, first, that the 
 lease was not a lease for fourteen years ; and secondly, 
 that the tenant had no remedy on the covenant in the 
 lease for quiet enjoyment(/j. The cause then came on 
 upon the equity reserved, and was fully argued by 
 Komilly for the plaintiff, and by Hoilist and liosanquet 
 for the defendants. And Lord Eldon, after taking a day 
 to consider, pronounced judgment shortly, that there was 
 not equity sufficient to support the bill(^^). 
 
 This decision demands particular attention. It seems 
 founded on great principles of equity, although the pur- 
 chaser had voluntarily placed himself in a situation in 
 (*)which it was his interest to refuse his consent, without 
 
 (e) Doe V. Luffkin, 4 East, 221. 
 
 (/) 1 New Rep. 163. 
 
 {g) Ch. 15th July 1805. S. C. 11 Ves.JLin. 170. 
 
 (*271)
 
 31 Q OF EQUITABLE RELIEF 
 
 which the lease could not be sustained. We cannot fail 
 to distinguish this case from that where a man, having a 
 partial interest in an estate, agrees to grant a lease which 
 his interest does not enable him to grant ; and then joins 
 with the remainder-man in selling the estate to a pur- 
 chaser, with full notice of the agreement. There equity 
 rightly holds the purchaser bound by the agreement. 
 The vendor was bound to grant the lease, or to answer in 
 damages for non-performance of the agreement ; and as 
 the purchaser had notice of the contract, and takes an 
 estate which enables him to perform it, it is but just that 
 he should be compelled to do so, in order to exonerate 
 the vendor from an action for breach of the contract. 
 And on this ground it should seem, that if in the case of 
 Luffkin V. Nunn, Luffkin could have recovered on the 
 covenant for quiet enjoyment, the lord would have been 
 compelled to perform the agreement. If this had not 
 been Lord Eldon's opinion, he would not have asked the 
 Court of Common Pleas, whether Lufifkin could recover 
 on the covenant for quiet enjoyment in case he were 
 evicted. Lord Redesdale appears to have overlooked 
 this distinction, when in a late case he found fault with 
 one point in the case of Taylor v. Stibbert, viz. that he 
 thought the purchaser had a right to say, that having 
 purchased from the son as well as the father, and the 
 covenant not being binding on the son\s estate, he should 
 not be bound further than as he purchased an estate 
 which was bound, and therefore that notice, or no notice, 
 was of no consequence to him(A). The doctrine, how- 
 ever, can only apply to cases where the purchaser ought 
 to indemnify the seller against the agreement. 
 
 Where a purchaser buys a reversion expectant upon 
 (*)a particular estate, as, subject to the life-estate of/. S., 
 although it turn out that no such estate is in existence, 
 
 {h) See 2 Scho. & Lef. 699. 
 (*272)
 
 AND PROTECTION. 01 1 
 
 yet/. *S. will be decreed to hold the estate during his 
 life, against the purchaser(/). 
 
 There was a case decided in Ireland, where the pur- 
 chaser set aside the leases subsisting at the time of the 
 sale, and he was decreed to be a trustee for the vendor(A:). 
 And it was treated as clear, that if an estate be sold sub- 
 ject to existing leases, and the vendor discover that the 
 leases he had granted were obtained from him by fraud, 
 he would be entitled to set them aside, and to hold the 
 estate during the continuance of such leases, paying the 
 rents to the purchaser thereby reserved, and performing 
 the covenants in the leases(/). And upon this principle, 
 where a devisee in fee, subject to an executory devise 
 over in fee, suffered a recovery, and sold the estate, and 
 received all the money, and he and the devisee over 
 joined in the conveyance (which of course operated as a 
 release of the executory interest), subject to leases grant- 
 ed by the first devisee, it was decided that the devisee 
 over (the event having happened upon which it was to 
 arise) was entitled to impeach the leases for his own be- 
 nefit, securing to the purchaser the rents and the benefits 
 of the agreements(m). 
 
 But all these points are of great importance, and will 
 require, it is apprehended, much further consideration 
 before they can be adopted as binding rules. 
 
 Although whilst lines operated a purchaser with notice 
 had to strengthen his estate, levied a fine, and five years 
 had passed without a claim, yet the fine and nonclaim 
 would have been inoperative ; for as he purchased with 
 
 (t) Walton V. Stanford, 2 Vern. 279. See Doe v. Archer, 1 Bos. 
 & Pull. 531. 
 
 (fc) 2 Ball & Beat. 548. 
 
 (0 2 Ball & Beat. 547. 
 
 (m) Maguire v. Armstrong, 2 Ball & Beat. 638 ; see Blakeney v. 
 Bagott, 3 Bligh, N. S. 248.
 
 012 ^^ EQUITABLE RELIEF 
 
 (*) notice, notwithstanding any consideration paid by him 
 he was but a tiustee, and so the estate not being dis- 
 placed, the fine could not l)ar(n) ; so, although a man 
 purchase under a decree in equity, yet, if the decree was 
 obtained by fraud, he cannot protect himself (o). 
 
 But where it was a mere legal title, and a man had 
 purchased an estate which he saw himself had a defect 
 upon the face of the deeds, yet the fine would have been 
 a bar, and not affect him with notice, so as to make him 
 a trustee for the person who had the right, because this 
 would be carrying it much too far, for the defect upon 
 the face of the deeds was often the occasion of the fine 
 being levied. This was laid down by Lord Hardwicke(/?). 
 And it was resolved in Termor's cRse(q), that if A. pur- 
 chases land of B., and afterwards perceiving that B. had 
 but defeasible title, and that C. had a right to it, A.(l) 
 levies a fine with proclamations to a stranger, or takes 
 a fine from another with proclamations, with the intent to 
 bar the right of C. ; this fine, so levied by consent, should 
 bind, for nothing was done in this case which was not 
 lawful. Fines cannot in future be levied ; but still with 
 reference to existing titles, it is necessary to know what 
 the rule was. The accepting a release of a right is in 
 no case an acknowledgment that a right existed. If it 
 were an admission of right, it must always be liable to 
 objections, because the consideration for the release is 
 always much less than the value of the thing demanded ; 
 but in truth, the consideration given being less than 
 the value of the thing demanded, the transaction 
 
 (n) 1 Vern, 149 ; 2 Atk. 631 ; Kennedy v. Daly, 1 Scho. & Lef. 
 365. 
 
 (o) Kennedy v. Daly, 1 Scho. & Lef. 335 ; Giffard v. Horf, ib. 386. 
 ip) 2 Atk. 631 ; and see ib. 390. 
 iq) 3 Rep. 79, a. 
 
 (I) B. is by mistake inserted in the report for A. 
 
 (*273)
 
 AND PROTECTION-. «,« 
 
 (*)amounts to a denial of the right, instead of an acknovv- 
 ledgment(/). 
 
 Notice, before actual })ajineiit of all the money, 
 although it be becured(6)(423), and the conveyance actu- 
 ally executed(/)(424), or before the execution of the con- 
 veyance, notwithstanding that the money be paid(M)(425j, 
 is equivalent to notice before the contract. 
 
 But if the conveyance be executed, and the money 
 paid, a purchaser \>ill not be affected by notice of an 
 incumbrance, although a prior incumbrance, intended to 
 be discharged, is not paid off (r). 
 
 And notice at the time of getting in a j)recedent 
 incumbrance, as a protection against mesne charges, is 
 not material, so that he had not notice at the time of the 
 purchase(?t;)(426). Indeed, after a conveyance is execut- 
 ed, it is seldom that a purchaser thinks of procuring a 
 prior legal estate, unless he discovers some incumbrance on 
 the estate, against which he is anxious to protect himself. 
 
 But although a purchaser has notice of an equitable 
 claim by which his conscience is affected, yet a person 
 purchasing from him bonajule, and without notice of the 
 right, will not be bound by it(a;)(427). 
 
 (r) Underwood r. Lord Couitown, 2 Scho. & Let". 68. 
 (») Tourville v. Naish, 3 P. Wms. 307 ; Story v. Ld. Winsor, 2 Atk. 
 630 ; More v. Mayhevv, 1 Cha Ca. 34 ; 2 Freem. 175, pi. 235. 
 (/) Jones V. Stanley, 2 Eq. Ca. Abr. 685, pi. 9. 
 (u) Wigg V. Wigg, 1 Atk. 364. 
 (r) Meynell v. Garraway, Nels. Cha. Rep. 63. 
 (tp) Cockes V. Sherman, 2 Freem. 13 ; and see 2 Ves. 574. 
 (x) Ferrars v. Cherry, 2 Vern. 384 ; Merlins r. Joliffe, Ambl. 313 ; 
 
 (423) See Frost v. Beckman, 1 Johns. Ch. Rep. 288. 301. Blair 
 V. Owles, 1 Munf. 38. And See Lewis v. J^Iaddisoiis, 1 Munf. 303. 
 Jewell V. Pabnev, 7 Johns. Ch. Rep. 65. 
 
 (424) See Hoover v. Donally, 3 Hen. & Munf. 316. 
 
 (425) See Wilcox v. Calloicaij, 1 Wash. Rep. 41. 
 
 (426) See Jackson v. Giveiis, 8 Johns. Rep. 105. 2d edit. 
 
 (427) See Demarest \. fVinkoop, 3 John?. Ch. Rop. 147. Jackson 
 VOL. II. 40 (*274;
 
 ^1^ OF EQUITABLE RELIEF AND PROTECTION. 
 
 So, on the other hand, a person with notice of an equi- 
 table claim, may safelj purchase of a person who bought 
 bona Jide, and without notice of ix(y) ; although this 
 (*)circumstance may influence the Court witli respect 
 to costs(z)(I). This rule is consistent with the others ; 
 it is not in favor of the purchaser with notice, but of the 
 purchaser without notice. If a different rule prevailed, 
 he might not be able to sell the estate(428). 
 
 It still remains to show what will be deemed sufficient 
 notice to a purchaser; but the importance of this subject 
 seems to demand a separate chapter. 
 
 Lowther r. Carleton, MS. Barnard. Rep. Cha. 358 ; Forrester, 187 ; 
 2 Atk. 242. See Pitts r. Edelph, Toth. 284. 
 
 (y) Harrison v. Forth, Prec. Cha. 51 ; 1 Eq. Ca. Abr. 331, pi. 6; 
 Brandling v. Ord, 1 Atk. 571 ; Sweet i'. Southcote, 2 Bro. C. C. 66 ; 
 2 Dick. 671 ; Lowther v. Carleton, 2 Atk. 242 ; Andrew v. Wrigley, 
 4 Bro. C. C. 125. 
 
 (2) Andrew v. Wrigley, 4 Bro. C. C. 125. 
 
 (I) In Grounds and Rudiments of Law and Equity, p. 275, tit. 377, 
 Lord Talbot is erroneously stated to have held in Lowther v. Carleton, 
 that where a purchaser with notice conveys to anolher without notice, 
 the second sale was vicious, because of the former conveyance being, 
 with notice ; and the author of that book warmly espouses the doc- 
 trine. 
 
 V. Given, 8 Johns. Rep. 105. 2d edit. Bebee v. Bank of JYew-Yorky 
 1 Johns. Rep. 573, 574. See also Lacey v. Wilson, 4 Munf 313. 
 Jackson v. Heni-y, 10 Johns. Rep. 185. 
 
 (428) See Bumpus v. Plainer, 1 Johns. Cb. Rep. 213, 219. Mex- 
 ander v. Pendleton, 8 Cranch, 462. 
 
 (*276)
 
 [ 315 ] 
 
 OCHAFTER XVII. 
 
 OF NOTICE. 
 
 Notice is either actual or constructive ; but there is 
 no difference bet-ween actual and constructive notice in 
 its consequences(«). 
 
 I. Of actual notice little can be said. It requires no 
 definition, and it need only be remarked, that, to con- 
 stitute a binding notice, it must be given by a person 
 interested in the proj3erty, and in the course of the 
 treaty for the purchase(429). Vague reports from persons 
 not interested in the property, will not affect the purchas- 
 er's conscience ; nor will he be bound by notice in a pre- 
 vious transaction which he may have forgotten. 
 
 That vague reports from strangers are not notice, was 
 decided in the case of Wildgoose v. Weyland(6), where 
 one man came to a person about to buy a house, and told 
 him to take heed how he bought it, for the vendor had 
 nothing in ii, but upon trust for A. : and another person 
 came to him, and told him it was not so, for the vendor 
 was seised of the land absolutely. The information of 
 the first proved correct, yet the purchaser was held not 
 to have notice : because such flying reports were many 
 times fables, and not truth ; and if it should be admitted 
 for a sufQcient notice, then the inheritance of every man 
 might easily be slandered. 
 
 (a) See Ambl. 626. 
 
 (fe) Goulds, 147, pi. 67 ; and Cornvvallis's case, Toth. 254. 
 
 (429) See ^irgenbrischt v. Campbell, 3 Hen. & Munf. 144. 
 
 (*276)
 
 316 
 
 OF NOTICE. 
 
 And not only a more assertion, that some other person 
 claims a title is not suflicient, but, ])erhaps, a general 
 (*)claiin is not sufiicient to affect a purchaser with notice 
 of a deed, of whicii he does not appear to have had 
 knovvledge(c). 
 
 However, no person could be advised to accept a title 
 concerning which there were any such reports, or asser- 
 tions, without having them elucidated ; because what one 
 Judge might think a flying, vague report, or a mere asser- 
 tion, another might deem a good notice. For instance, 
 in Fry v. Porter(c?), Hale, C. B. in speaking of the point 
 of notice in that case (which, however, did not relate to 
 a purchaser), said, " here are several circumstances that 
 seem to show there might be notice, and a public voice in 
 the house, or an accidental intimation, &c. may possibly 
 be sufficient notice"(430). 
 
 (c) See Jolland v. Staiiibiidge, 3 Yes. jun. 478. 
 
 {(l) 1 Mod. 300. See Butcher v. Stapely, 1 Vern. 363. 
 
 (430) See Cwrrens V. //arf. Harden, 37. 
 
 " There may be circumstances which throw a duty on the tenant in 
 possession ; such for instance as are alleged in this case ; a sale of the 
 land by the sheriff, as the property of Procter, whose tenant Covert 
 was said to be, Covert standing by, and not contradicting it. And if 
 Covert did so stand by, knowing that he was represented as Procter's 
 tenant, and not contradicting it, he could not afterwards contest the title 
 of Procter with the parchaser." (Per Tilghman, C. J. in Covert et al. 
 V. Irwin et al. 3 S. & R. 289.) 
 
 In Plumer v. Robertson et al. 6 ib. 179., where the defendant Ro- 
 bertson having a mortgage on an estate, entered into articles for the 
 purchase of the premises ; and entered into possession. The mort- 
 gagee soon after left the country ; and the plaintiff having received a 
 deed from the mortgagee, the question arose whether Robertson's claim 
 under the articles ought to be postponed lo that of the plaintiff. There 
 were two points on v.hich the cause turned. 1. Had the plaintiff no- 
 tice of the defendant's agreement ; and the charge to the jury was that 
 the possession of R. amounted to constructive notice of the agreement. 
 2. Were the articles rescinded by his proceedings on scire facias de- 
 claring that he held under the mortgage 1 The Court granted a new 
 (*277)
 
 OF NOTICE. 
 
 317 
 
 That the notice to the purchaser must be in the same 
 transaction, seems to have been settled in a case(e), upon 
 
 (e) See East Crreenstead's case, Duke, 64 ; and the cases infya, as 
 to notice to an agent. See 1 Ves. jun. 425. 
 
 trial on the ground of error in the charge in respect to construciive no- 
 tice. The possession, was a circumstance for the jury, but was not 
 ipso facto, a legal presumption of notice. The point on which the cause 
 should have been submitted to the jury, was, whether actual notice of 
 the articles of agreement was given to the plaintiff. Tf the plaintiff 
 knew that fact, which amounted in equity, to a sale to Robertson, he 
 should not have purchased : if he went on with notice to purchase, it 
 was at his peril. 
 
 If the second purchaser has notice of the first conveyance, his pur- 
 chase is a fraudulent act. This notice may be express or it may be 
 implied from the first purchaser being in the open and exclusive pos- 
 session of the estate. 2 Mass. 506. The notice to affect a purcha- 
 ser, should be actual, circumstantial, in the transaction, by the party in 
 interest ; for there can be no implied notice : the clear notice required 
 by the law, is actual, has a real form, to be established by direct proof. 
 A purchaser of the legal title cannot be affected by any latent equity 
 of which he has not actual notice, or which does not appear on some 
 deed necessary to the deduction of his title. 1 Wash. 4. The strong- 
 est case which can be put, is that of a conveyance registered in the 
 proper county without due proof ; yet this is not notice, nor to be left 
 to a jury from which to imply notice. Heister r. Fortner, 2 Binn. 40. 
 It must be proved that he knew exactly the state of the party having 
 the equity, and knowing that, acquired the legal estate. The evidence 
 of notice ought to amount to actual fraud, and must be very clearly prov- 
 ed. The true ground in cases of notice, is, that in itself it is a species of 
 fraud, and takes the bona fides of the purchaser, and puts him in mala 
 fide. In Peebles v. Reading, 8 S. & R. 484, in which these principles 
 were recognized, the case was thus : Reading sued in ejectment for 
 76 acres of land of which he had been the owner. The land in question 
 was sold by the sheriff to Turner for 71 dollars, when it was worth 
 eight or ten dollars by the acre. The next year Turner moved on to 
 the land ; and in the subsequent year Reading moved off. Turner 
 erected buildings, made improvements, and in about six years sold the 
 land to Peebles for twenty dollars per acre, who entered into posses- 
 sion. Turner, the purchaser declared before and after the sheriff's 
 sale, that he had bought for Reading, and would let him have back the 
 estate, if he paid him the money. Peebles, however, never made any
 
 318 
 
 OF NOTKUV 
 
 the statute of charitable iises(/), the tacts of which were, 
 that land given to charitable uses was intended to be 
 
 (/) Supra, vol. 2. p. IS2. 
 
 such declaration. The jury under instructions from the court returned 
 a verdict for the plaintiff, the Court in error reversed the judgment and 
 o-ranted a new trial. The Court, Duncan, J. " That the act for the 
 prevention of frauds and perjuries, though copied from the English 
 statute, omits the 7th section respecting trusts. And from the cases 
 of German v. Gabbald, 3 Binn. 304, and Wallace et al. 2 S. & R. 521, 
 it would seem, that the act did not prevent any declaration of trust be- 
 ing made by parol. The provisions of the act, seemed rather to apply 
 to legal than trust estates, and there was nothing to prevent parol proof 
 by which a trust might be inferred ; and even did the statute apply in 
 cases of fraud, and where transactions have been carried on mrt/a^de, 
 there is a resulting trust by operation of law. This is not a resulting, 
 within the English statute ; for if a man employs another, by parol, as 
 his agent to buy an estate for him, and the agent buys and pays for Tt 
 with his own money, and takes the conveyance in his own name, 
 it would not be a resulting trust. Bartlett v. Pickersgill, 4 Burr. 
 2255. In Botsford v. Burr, 2 Johns. Ch. R. 405, resembles this, 
 where it was held that one who sets up such a trust, on a sale of his 
 property on a mortgage, unless he has paid part of the considera- 
 tion money, will not be allowed to shew by parol, that the purchase was 
 made for his benetit. Though parol evidence is admissible in this 
 state ; yet it should be received with caution. But the length of time 
 would amount to a waiver had there been an agreement in writing to 
 reconvey. In Youst v. Martin, 3 S. & R. 429, it is truly said, that 
 a court of equity will not force a man to give up his possession under 
 circumstances of long acquiescence, without reimbursing the money he 
 has paid; or if the improvements be expensive, or the lapse of time 
 great, would he be compelled to give it up at all. Peebles is a pur- 
 chaser six years after sheriff's deed acknowledged, five years after 
 possession delivered to Turner, with improvements made to five times 
 the amount of the original purchase ; and having paid more than seven 
 times the amount of the original purchase money. This trust neither 
 appeared by any writing, nor did the possession continue in the cestui 
 que trust. No notice that is conclusive. And as relief could be grant- 
 ed only on account of Peebles' fraud, and that fraud consisting of a 
 purchase with notice of the trust, it must be made out by clear proof 
 of actual notice. A mere knowledge or report that Turner had declar- 
 ed he had bought for Reading will not do after this lapse of time.
 
 OF NOTICE. c>.q 
 
 sold bj act of parliament, and when the bill was read in 
 parliament, it was declared, that the land was chargeable 
 with a charitable use, and an offer was made to other- 
 wise assure the charitable use. The bill, however, did 
 not pass, and the land was afterwards sold to one of the 
 members of the House, who spoke in the debate on the 
 bill ; yet this notice was held not to be sufficient notice, 
 because it was not known to the purchaser, except as 
 a member of parliament. 
 
 It may be here proper to mention, that an action on the 
 case for slander of the vendor's title will not lie against 
 a person for giving notice of his claim upon an estate, 
 either by himself or his attorney, at a public auction, or 
 (*)to any person about to buy the estate ; although the 
 sale be thereby prevented(^^) ; and to sustain the action, 
 malice in the defendant must be proved(/i). 
 
 (o) Hargrave v. Le Breton, 4 Burr. 2422. 
 
 (/i) Smith V. Spooner, 3 Taunt. 246. See Rowe v. Roach, 1 Mau. 
 
 In Jackson v. ValUenburgh, 8 Cowen, 260, the inquiry was how 
 particular and certain the notice must be, which should be deemed 
 equivalent to a registry ? The case there was that the attorney who had 
 directions to obtain an assignment of u mortgage had been informed 
 generally bf a prior mortgage : but could tind no registry, except the 
 registry of an assignment of the mortgagor's interest in book of deeds, 
 the Supreme Court held, that this was not sufficient notice. That fact 
 alone was not enough to put a party on inquiry. Woodworth, J. said. 
 The notice may have answered to put a person on inquiry, in a case 
 where that species of notice is sufficient; but to supply the place of a 
 registry, the law proceeds a step farther ; for if the second mortgage is 
 not registered as bona fide, because, in consequence of notice, it is 
 tainted with frand, that imputation must be supported by clear evidence. 
 The registry of an absolute conveyance which the attorney found was 
 not sufficient, because here the claim is in the nature of a mortgage, 
 in consequence of the defeasance that accompanied it. It was therefore 
 not sufficient notice of a mortgage. Jolland r. Stainbridge, 3 Yes. 478 ; 
 Hine v. Dodd, 2 Atk. 276. The case of Jackson v. Burgott, 10 Johns. 
 457, proceeds on the same ground. Actual notice was held neces- 
 sary. So also in Dunham v. Dey, 18 ib. 556. 
 
 (*278)
 
 320 
 
 OF NOTICE. 
 
 Nor will the action lie against the attorney, although 
 he do not deliver the precise message of his principal, 
 provided it be to the same eftect. 
 
 II. Constructive notice, in its nature, is no more than 
 evidence of notice, the presumptions of which are so vio- 
 lent, that the Court will not allow even of its being con- 
 trovert ed (2) (431) ; but it is difficult to say what will 
 amount to constructive notice. The following rules may, 
 perhaps, assist the learned reader in his researches. 
 
 1. Notice to the counsel, attorney, or agent of the pur- 
 chaser, is notice to him(/c)(432) ; for otherwise, as Lord 
 Talbot observed, a man who had a mind to get another's 
 estate, might shut his own eyes, and employ another to 
 treat for him who had notice of a former title ; which 
 would be a manifest cheat(/). And the same rule pre- 
 vails, although the counsel, attorney or agent, be the ven- 
 dor(m)(433), or be concerned for both vendor and pur- 
 chaser(n). 
 
 So notice to the town agent of the purchaser's attorney 
 in the country, is also notice to the purchaser(o). 
 
 and Selw. 304 ; Pitt r. Donovan, ib. 639 ; Robertson v. M'Doiigall, 
 4 Bingh. 670. 
 
 (t) See 2 An.str. 438 ; jjer Eyre, C. B. 
 
 (k) Newslead v. Searles, 1 Atk. 265 ; Le Neve v. Le Neve, 3 Atk. 
 646; iVes. 64; Brotherton v. Hatt, 2 Vern. 574 ; Ashley v. Baillie, 
 2 Ves. 368 ; Maddox v. Maddox, 1 Yes. 61 ; and see 3 Cha. Ca. tlO ; 
 Tunstall v. Trappes, 3 Sim. 301. 
 
 (0 Attorney-General r. Gower, 2 Eq. Ca. Abr. 685, pi. 11. See 
 Ambl. 626. 
 
 (m) Sheldon v. Cox, Ambl. 624. 
 
 {n) Le Neve v. Le Neve, 3 Atk. 646. 
 
 (o) Norris v. Le Neve^ 3 Atk. 26. 
 
 (431) See Billington v. Welsh, 5 Binn. 132. 
 
 (432) See Jistor v. Wells, 4 Wheat. 466, 487. Jackson v. Sharp, 9 
 Johns. Rep. 162, 168, 169. and see Blair v. Owles, 1 Munf. 38. 
 
 (433) See Blair v. Oxvles, ut supra.
 
 OF NOTICE. o^i 
 
 And it is immaterial that the purchase is made under 
 (*)the direction of a court of equity ; and infants are 
 equally bound u ith adults(/;). 
 
 And if a person, with notice of any claim, purchase an 
 estate in the name of another, without his consent, yet if 
 he afterwards assent to it, lie is bound by tiie notice to his 
 agent(^). So a man cannot elude the effect of having 
 notice, by procuring the conveyance to be made to a third 
 person (r). 
 
 But although, if a man purchase an estate which is 
 subject to an equity only, of which he or his agent has 
 notice, it is a fraud ; yet, if an instrument is signed by all 
 parties, the intention cannot be interpreted, contrary to 
 such instrument, by notice to an agent, that some of the 
 parties had such intention(5). 
 
 Although the counsel, attorney or agent, be employed 
 only in part, and not throughout the transaction, the pur- 
 chaser is equally affected by the notice. This was doubted 
 in the case of Vane v. Lord Barnard (i) ; but in the later 
 case of Burv v- Bury, before Lord Hardwicke(w), he said, 
 " where an agent has been employed for a person in 
 part and not throughout, yet that affects the person with 
 
 notice." 
 
 The notice to the counsel, attorney or agent, must, how- 
 ever, be in the same transaction ; because he may very 
 
 (p) Toulmin v. Steere, 3 Mer. 210. A petition for rehearing was 
 presented, which was afterwards withdrawn under circumstances not 
 connected with the legal points in the case. 
 
 (g) Merry V. Abney, 1 Cha. Ca. 38 ; 1 Eq. Ca. Abr. 330 ; 2 Freem. 
 161 ; Nels. Cha. Rep. 69 ; Jennings v. Moore, 2 Vern. 609 ; 1 Bro. 
 P. C. 244. 
 
 (r) Coote V. Mammon, 5 Bro. P. C. by Tomlins, 365. 
 
 (s) See 1 Bro. C. C. 351. 
 
 (<) Gilb. Eq. Rep. 6. See 2 Pow. Mort. 597, 598, 4th edit. 
 
 (u) Chan. 11th July 1748, Ms. Appendix, No. 27. 
 
 41 (*279)
 
 ^22 ^^ NOTICK. 
 
 easily have forgotten \t(v) ; and if this were not t!ie rule 
 (*)of the Court, it would be of dangerous consequence, as 
 it would be an objection against tlie most able counsel, 
 because of course they would be more liable than others 
 of less eminence to have notice, as they are engaged in a 
 great number of affairs of tliis kind(,i). The same rule of 
 course applies to the purchaser himself. If a man pur- 
 chases an estate, under a deed, which happens to relate 
 also to other lands not comprised in that purchase, and 
 afterwards purchases the other lands to which an apparent 
 title is made, independent of that deed, the former notice 
 of the deed will not of itself affect him in the second 
 transaction, for he was not bound to carry in his recol- 
 lection those parts of a deed which had no relation to 
 the particular purchase he was then about, nor to take 
 notice of more of the deed than affected his then pur- 
 chase (y) (434). 
 
 2. A public act of parliament binds all mankind ; but a 
 private act of parliament is not, of itself, notice to a pur- 
 chaser(2). And it is conceived, that an a^t of parliament 
 of a private nature, but made a public act(I), in order that 
 it might be judicially taken notice of, instead of beino- 
 
 (r) Preston V. Tubbin, 1 Vern. 286; Fitzgerald v. Faucnnberije, 
 Fitzgib. 297 ; 2 Eq. Ca. Abr. 682, (D.) n (b.) ; Warwick v. War- 
 wick, 3 Atk. 291 ; Worsley v. Eail of Scarborough, 3 Atk. 392; Steed 
 V. Whitaker, Barnard. Cha. Kep. 220 ; Hine v. Dodd, 2 Atk. 275 ; 
 Lowther v. Carleton,2 Atk. 242, S. C. MS. ; AA\\ey v. Baillie, 2 Vts. 
 368. See 1 Yes. 435. 
 
 {x) Per Lord Hardwicke, 2 Atk. 242. 
 
 (y) Hamilton v. Royse, 2 Scho. & Lef. 327. Per Lord Uedesdale ; 
 Mountford v. Scott, 3 Madd. 34. 
 
 (z) See 2 Ves. 480. 
 
 (I) This will not happen in future, for it has been resolved that a 
 private act shall not be made a public act ; but it may be enacted, that 
 the act shall be printed by the king's printer, and that a printed copy of 
 it shall be evidence. 
 
 (434) See Murray v. Ballon, 1 Johns. Ch. Rep. 5Q6, 574. 
 (*280)
 
 OF NOTICE. ooo 
 
 Specially pleaded, and to save the expense of an attested 
 copy, would not be deemed such a public act as to be, of 
 itself, notice to a purchaser(a). 
 
 (*)3. Lis pendens is of itself notice to a purchaser(6), 
 unless it be collusive, in which case it will not bind 
 him(c)(435), but it is not of itself notice for the purpose 
 of postponing a registered deed(</)(436). 
 
 (a) See 3 Bos. & Pull. 578. 
 
 (6) See Toth. 4-5 ; Yeavely r. Yeavely, Toth. 227 ; 3 Cha. Rep. 
 25^ Digs V. Boys, Toth. 254 ; Culpepper v. Ashton, 2 Cha. Ca. 116. 
 233 ; Barns v. Canning, 1 Cha. Co. 300 ; Sorrell v. Carpenter, 2 P. 
 Wms. 4S2 ; and see 3 P; Wins. 117 ; Garth v. Ward, 2 Atk. 174 ; 3 
 Barnard. Rep. Cha, 450 ; Worslej v. Earl of Scarborough, 3 Atk. 392 ; 
 Walker I'. Smahvood, Ambl. 676 ; 5 Co. 47, b. ; Hill v. Worsley, Hard. 
 320 ; Goldson v. Gardiner, 1 Yern. 459, cited ; the Bishop of Win- 
 chester V. Pame, 11 Yes. jun. 194. 
 
 (c) 2 Cha. Ca. 116. 
 
 [d) 19 Yes. jun. 439. 
 
 (435) See JVIiirray v. Ballon, 1 Johns. Ch. Rep. 566. JVItirray v. 
 Finst'er, 2 Johns. Ch. Rep. 155. Hcatley v. Finsler, 2 Johns. Ch. 
 Rep. 15S. Green v. Slayter, 4 Johns. Ch. Rep. 38. Walker v. Butz, 
 
 1 Yeates, 574. And see Watlington v. Hoioley, 1 Des. 170, in note. 
 
 (436) See J\'lurray v. Ballon, 1 Johns. Ch. Rep. 576. 
 
 " In a court of equity, a judgment which is only a general and not 
 a specific lien upon the real estate of the debtor, will be so controlled 
 as to protect the prior equitable rights of third persons against the legal 
 lien of the judgments, and also against purchasers under an execution 
 thereon, chargeable with either actual or constructive notice of such equi- 
 table rights. Ex parte 'Howe, 1 Paige's R. 125. Hampson r. Edelen, 
 
 2 H. & J. 64. 1 Atkinson on Cov. 512. Where the vendee of the 
 judgment is in the actual possession of the premises, under a contract to 
 purchase, executed prior to the docketing of the judgment, the pur- 
 chaser at the sheriff's sale will be chargeable with constructive notice of 
 the equitable rights of such vendee, and will take the legal title, subject 
 to the same. Tuttle t'. Jackson, 6 Wend. R. 213 ; Buck v. Hallow- 
 way's Devises, 2 J. J. Marsh. R. 189 ; Chesterman v. Gardner, 5 J. 
 Ch. R. 33 ; and in such a case, if the whole of the purchase money 
 had been paid at the time of the recovery of the judgment, or had 
 been specifically appropriated to the payment of prior incumbran- 
 ces on the premises, there could be no doubt that the purchaser at 
 
 (^281)
 
 Q24 ^^ NOTICE. 
 
 A subpoena served, is not, however, a sufficient lis pen- 
 dens unless a bill be filed(e) ; but when the bill is filed, the 
 
 (e) Anon. 1 Vern. 318. 
 
 the sheriff's sale would be considered in equity as holding the legal 
 title in trust for the original vendee ; and upon a proper applica- 
 tion to the court of chancery, he would be restrained from" prosecu- 
 ting a suit at law against such vendee, or his assigns to recover* the 
 possession of the property. Per the Chancellor in Parks v. Jack- 
 son, 1 1 Wend. R. 442, where it appeared that before the bill in chan- 
 cery was filed, the persons under whom Parks holds, had made con- 
 tracts with the owner of the premises, entered into possession and 
 made improvements ; but the deeds were executed pendente lite. The 
 question was whether the deeds of conveyance were void on the ground 
 of the lis pendens. The Supreme Court considered the question as 
 settled in the case of Jackson v. Andrews et al. 7 Wend. 152 : and 
 that a party not only cannot purchase after the lis pendens ; but he can- 
 not carry into effect a purchase made but unexecuted at the time of 
 the filing the bill. The Chancellor also in the Court of Errors voted to 
 affirm the judgment ' upon the legal merits of the case, and considering 
 that the equitable rights of the parties cannot be decided in an ejectment 
 suit.' He remarked that ' as the legal title alone is in question in this 
 suit, it is not necessary to express any definite opinion as to the legal 
 lien of a judgment recovered against the vendor in a prior contract of 
 ssXq upon the unpaid purchase money. In Pennsylvania, where every 
 equitable as well as legal interest in land is settled by action at law, it 
 has been decided that judgment against a vendor who has contracted 
 to sell but has not received the whole purchase money, is a lien on the 
 vendor's interest ; and that a purchaser under such judgment will 
 stand in the place of the vendor, and will be entitled to the unpaid pur- 
 chase money ; and upon payment of the same, nvill be bound to make 
 a deed to the vendee, according to the original agreement. Fasholt 
 V. Reed, 16 S. & R. 267. In Maryland, on the contrary, it appears to 
 have been held, that the vendee who, subsequently to the recovery of a 
 judgment against his vendor, but without any actual notice thereof, had 
 paid over a balance of the purchase money, and taken a conveyance 
 from such judgment debtor, was in equity entitled to protection against 
 the claim on the part of the judgment creditor, to a legal lien on the 
 premises. Hampson v. Edelen, 2 H. & J. R. 64. The last case, 
 however, shows that a subsequent conveyance from the judgment 
 debtor, in pursuance of his contract, does not at law overreach the 
 judgment by relation, and that the vendee must resort to a court of
 
 OF NOTICE. 
 
 325 
 
 lis pendens begins from the service of the subpceiia(4S7). 
 And the question must relate to the estate, and not merely 
 
 equity to protect himself against a sale under the judgment, which 
 would render the conveyance from his vendor, subsequent to the dock- 
 eting of the judgment, inoperative in a court of law. This was also 
 expressly decided in Butts v. Chinn, in the Court of Appeals in Ken- 
 tucky, 4 J. J. Marsh. R. 641, where the purchaser at the sheriff's 
 sale was permitted to recover in ejectment, on the ground that the con- 
 veyance from the vendor, which was executed after the lien of the judg- 
 ment attached, although in pursuance of a previous contract, was at law 
 overreached by the subsequent sale under the judgment.' He consid- 
 ered a judgment a legal as well as an equitable lien upon lands con- 
 tracted to be sold, to the extent of the unpaid purchase money : And 
 that the commencement of a suit in chancery, which is duly prosecuted 
 to a decree, is constructive notice to every person who acquires an in- 
 terest from the defendant in the subject matter of the suit pendente lite, 
 of the legal and equitable rights of the plaintiff as charged in the bill 
 and established by the decree. Murray v. Ballou, 1 J. Ch. R. 556. 
 Notwithstanding, the judgment of the Supreme Court was reversed : 
 All the Court excepting the Chancellor, voting in favor of the reversal. 
 The rule that any interest acquired in the subject matter of a suit pend- 
 ing the suit, is so far considered a nullity that it cannot avail against the 
 plaintiff's title, was considered inapplicable to the case at bar ;' for the 
 reason of the rule was, that if it were not applied, there would be no 
 end to any suit, the justice of the court would be evaded, and great 
 hardship and inconvenience to the suitor be introduced. Murray r. 
 Lilburn, 2 J. Ch. 444. 2 Ball. & B. 167 : Murray v. Ballou, supra. 
 In the latter case Chancellor Kent says ' to bring home to every pur- 
 chaser, the charge of actual notice of the suit must, from the very 
 nature of the case, be impracticable.' But ' this reason has no ap- 
 plication to a third person, whose interest subsisted before the suit 
 was commenced, and who might have been made a party.' 4 Cowen, 
 678. The persons in possession had such an interest ; for possession 
 itself is such an interest ; and entitles the party to a day in court. 
 Senator Seward in delivering his opinion showed the rule and the rea- 
 sons upon which it was founded : and that no case had been cited, ' in 
 which the.rule of lis pendens had been applied to a person who purchases 
 by contract, and enters into possession and in part performs his contract 
 before suit commenced, and then pendente lite without actual notice fulfils 
 his contract and takes a deed for the land.' 
 
 (437) See Murray v. Ballou, 1 Johns. Ch. Rep. 676. Jackeon v. 
 Dickenson, 16 Johns. Rep. 315.
 
 326 
 
 OF NOTICE. 
 
 to money secured upon it(f); but a bill to perpetuate 
 the testimony of witnesses and to establish a Avill, is a 
 sufficient lis p end ens(g) (4^38). 
 
 To affect a purchaser, it has been said that there ought 
 to be a close and continued prosecution of the lis pen- 
 (lens(Ji), and this is required by Lord Bacon's rule. In a 
 late case(z), the Master of the Rolls cited the following 
 passage from Lord Nottingham's prolegomena of equity : 
 "The Lord Bacon, in his 12th rule, seems to direct, that 
 if a purchase is made pendente lite, after some long inter- 
 mission, this case shall differ from the common case. 
 But the rule, though reasonable, is not always observed ; 
 for in Martin v. Stiles, 1663, the bill filed in 1640, abated 
 by the death in 1648 : a bill of revivor was filed in 1662 ; 
 and the purchase was in 1651 ; and yet the purchaser was 
 bound, because now, by relation of the bill of revivor, it 
 (*)wdis pendetite lite : y^er Clarendon, Chancellor." This 
 passage was cited as an authority, that a purchaser during 
 the abatement of the suit is bound in like manner as if the 
 suit was in full prosecution. But the learned Judge by 
 whom it was quoted, treated this as a case of great dif- 
 ficulty, notwithstanding the authority of Lord Notting- 
 ham. Indeed, the case referred to seems to depend too 
 much on its own circumstances and the times in which it 
 occurred, to serve as a precedent. The Lord Keeper ex- 
 pressly said, that the war and infancy excused the laches. 
 Besides, it appears that the person who came in pendente 
 lite did not claim by purchase for money, but under the 
 will of the person against whom the original bill was 
 
 (/) Worsley v. Earl of Scarborough, 3 Atk. 392. 
 ig) Garth v. Wafd, 2 Atk. 174. 
 (h) Preston v. Tubbin, 1 Vern. 286. 
 
 (t) Bishop of Winchester V. Paine, 11 Ves. jun. 194; see Kinsman 
 V. Kinsman, 1 Taml. 399. 
 
 (438) See .Alexander v. Pendleton, 8 Crunch, 469. 
 (*282)
 
 OF NOTICE. cycyn 
 
 filedC^'). If the point should over call for a decision, it 
 will probahly turn on the question, whether the plaintift' 
 was guilty of laches in reviving the suit. 
 
 Lord Redesdale appears to have held, that although 
 a bill is dismissed, jet a party, purchasing after the dis- 
 missal, was a purchaser pendente lite, if an appeal was 
 afterwards brought in the House of Lords, since it was 
 still a question whether the bill was r/o-A?/// dismissed, and 
 the parties thus having notice, must take subject to all the 
 legal and equitable consequences ; but it was not neces- 
 sary to decide whether such a purchase was by force of 
 the supposed lis pendens made with implied notice of the 
 adverse title(/). 
 
 A purchaser pendente lite, on filing his supplemental 
 bill, goes into the Court jjro bono et 'mcdo, and will be 
 liable to all the costs in the proceedings, from the begin- 
 ning to the end of the suit(wj) ; and he will not be admit- 
 ted to examine the justice of a former decree, but will be 
 bound by the prior proceedings(n). 
 
 (*)Relief being sought against a bona fide purchaser who 
 bought pendente lite, without actual notice, is, however, 
 considered a hard case in equity ; and although the Court 
 cannot refuse its aid against him, yet the plaintiff is by 
 no means a favorite ; and therefore if he make a slip in 
 his proceedings, the Court will not assist him to rectify 
 the mistake(o). 
 
 The mere pendency of a suit will not prevent the de- 
 fendant from selling the property, the subject of the suit, 
 but the purchase will, in no manner, affect the right of 
 the plaintiff, except so far as it may be necessary to go 
 against the purchaser, if he obtain a transfer of the legal 
 
 {k) Style V. Martin, 1 Cha. Ca. 150. 
 
 {I) 1 Dow, 31. 
 
 (w) See 1 Atk. 89; and Gaskell v. Durdin, 2 Ball & Beatty, 167. 
 
 (n) Finch V. Newnham, 2 Vern. 216. 
 
 ffi) Sorreil v. Carpenter, 2 P. Wms. 482. 
 
 (*283)
 
 328 ^^ NOTICE. 
 
 estate(;?)(439). If, however, the plaintiff have only 
 a defeasible estate, the defendant may exercise his right 
 to put an end to it, notwithstanding the pendency of the 
 suit. — Therefore, if a man make a voluntary settlement, 
 and the person claiming under it file a bill against the set- 
 tlor, to have the trusts performed, yet the defendant may 
 defeat the plaintiff's right by selling the estate to a pur- 
 chaser during the pendency of the suit. The same ob- 
 servation applies to a settlement with a power of re- 
 vocation. The settlor, the defendant, may revoke the 
 settlement, although a suit is depending for carrying it 
 into execution(9'). 
 
 4. Decrees of the courts of equity are not of themselves 
 notice to a purchaser(r)(440). 
 
 This was expressly decided in Worsley v. the Earl of 
 Scarborough(5) ; in which case it appears, by a manuscript 
 (*)note of the late Mr. Coxe's to the case of Preston v. 
 Tubbin, in his copy of Vernon, in Lincoln's-Inn Library, 
 that Lord Hardwicke held most decidedly, that decrees 
 were not notice. He said there was no such doctrine, 
 that men were to take notice of the decrees of this Court, 
 though they were to take notice of a lis pendens. In 
 Sorrel v. Carpenter(i), it was said by Lord Chancellor 
 King, that the Court will oblige all to take notice of its 
 
 (p) Metcalfe v. Pulvertoft, before the Vice-Chancellor, 10th August 
 1813. See 1 Ves. & Beam. 180 ; 2 Ves. & Beam. 200. 
 
 {q) S. C. 
 
 {r) See Toth. 45 ; Prac. Reg. Cha. 125 ; and see Sir Thomas 
 Harvey v. Montague, 1 Vern. 57. 122. 
 
 (s) 3 Atk. 392 ; and see Rivers v. Steele, Lib. Reg. U. 128 ; temp. 
 Lord Hardwicke, referred to by Mr. Coxe. Note, owing to the ge- 
 nerality of the reference, I could not find this case in the register's book. 
 
 (0 2 P. Wms. 482. 
 
 (439) See Murray v. Lilburn, 2 Johns. Ch. Rep. 441, 442, 444. 
 
 (440) But see Watlington v. Hotvley, 1 Des. 170. Monell v. Law- 
 rence, on appeal, 12 Johns. Rep. 521. 
 
 (*284)
 
 OF NOTICE. CJ29 
 
 decrees as much as of judgments. This dictum is fre- 
 quently quoted as an authoritj to prove that the decrees 
 of equity are notice to purchasers ; but it was only an 
 obiter dictum ; and, indeed, as judgments are not of them- 
 selves notice to a purchaser, it does not appear to affect 
 the question. At first sight, the case of Wortley v. Birk- 
 head(z/), seems to militate against the doctrine, but on 
 examination, it will be found not to disturb it; that case 
 having only settled, that after a decree, and directions to 
 settle the priority of the demands, a puisne incumbrancer 
 cannot take the first incumbrance, and thereby gain a pre- 
 ference to the second : as it would lay a foundation for the 
 greatest collusion and contrivance between the parties to 
 exclude each other. 
 
 Decrees, however, w hich do not put an end to the suit, 
 as decrees to account, are of themselves notice to a pur- 
 chaser(i?) ; because the lites pendentes are not thereby 
 terminated(441). 
 
 In Kinsman v. Kinsrnan(a;), a testator, who died in 
 1780, devised one estate to William for life, remainder to 
 his son, an infant, in tail, and another estate to Simon for 
 life, remainder to his sons in tail. By a decree in 1792, 
 in a creditor's suit, it was directed, that if the personal 
 estate were insufficient for the payment of the debts, 
 (*)the tivo estates should contribute thereto in proportion 
 to their respective value ; and in 1798, upon further direc- 
 tions, the two estates were ordered to be sold. William's 
 estate was sold, but Simon concealed the title-deeds of 
 the estate devised to him, and consequently it could not 
 be sold for want of a title. In 1798, upon a second set 
 of further directions, the debts were paid out of the pur- 
 
 (tt) 2 Ves. 571. 
 
 (r) Worsley v. Earl of Scarborough, 3 Atk. 392. 
 
 (x) 1 Russ. & Myl. 617. 
 
 (441) See Mondl v. Lawrence, on appeal, 12 Johns. Rep. 521. 
 VOL. II. 42 (*286)
 
 q^Q OF NOTICE. 
 
 chase-money for William's estate, and the Master re- 
 ported what proportion of the debts and costs ought to 
 be borne by Simon's estate. William, who was a day- 
 laborer, took no further step, and died in 1825. Simon 
 being left in possession of the estate devised to him, he 
 and his son sold it in 1824 to a bona fide purchaser, 
 without notice. William's son, shortly after his father's 
 death, filed a supplemental bill, to make the estate sold 
 by Simon bear its share of the burden. The Master of 
 the Rolls made a decree accordingly, stating that at the 
 time of the sale there was plainly a lis pendens, which 
 amounted to an equitable charge. Upon an appeal from 
 this decree by the purchaser from Simon, it was reversed 
 by the present Lord Chancellor, who held that there was 
 not such a litis pendentia at the time when the purchase 
 was made as the purchaser was bound to take notice of. 
 
 5. The docketing of judgments is not of itself notice 
 to a purchaser(2/) ; for, as Lord Talbot observed, judg- 
 ments are infinite(z). 
 
 6. Registration of deeds is not of itself notice to a pur- 
 chaser who was seised of a legal estate at the time of the 
 purchase. 
 
 If a man search the register he will be deemed to have 
 notice(f«) ; but if a search is made for a particular period, 
 (*)the purchaser will not by the search be deemed to have 
 notice of any instrument not registered within that period. 
 This was decided in Hodsgon v. Dean (6), where a mort- 
 gagee directed a search to be made by the deputy- reo^ister 
 for York from 1794, and .the plaintiff's claim to an equi- 
 
 (y) Snelling v. Squint, 2 Cha. Ca. 47 ; Gresvvold v. Marshain, 2 
 Cha. Ca. 170. See Arnbl. 154 ; Churchill v. Grove, 1 Cha. Ca. 37 ; 
 2 Freem. 176. 
 
 (s) 2 Eq. Ca. Abr. 682, (D.) n. (b). 
 
 (a) Bushell v. Bushell, 1 Sch. & Lef. 103. 
 
 (6) 2 Sim. & Stu. 221, affirmed by the Lord Chancellor, July 1825 
 MS. 
 
 (*286)
 
 OP NOTICE. 001 
 
 table estate arose under a settlement of 1755, registered 
 in that year ; and it was held that the limited search ex- 
 cluded the presumption of a general search, and that the 
 mortgagee was not bound by constructive notice of the 
 registered deed. 
 
 , 7. Neither an act of bankruptcy(c), nor a commission 
 of bankruptcy(f/), is notice to a purchaser. 
 
 Indeed, a decision, that an act of bankruptcy was of 
 itself notice to a purchaser, would have operated as a 
 repeal of the provision in the statute of James, in favor 
 of jjurchasers from bankrupts. For, as we have already 
 seen, a purchaser, with notice of the act of bankruptcy, 
 cannot take advantage of the statute(e)(I). 
 
 Upon the general rule in equity in favor of purchasers, 
 and upon the ground that an act of bankruptcy is not of 
 itself notice to a purchaser, Lord Talbot, in the case of 
 Collet V, De Go\s(f)^ decided, that if a mortgage of a 
 legal estate be made before an act of bankruptcy, and the 
 mortgagee make further advances cifter the act of bank- 
 ruptcy, (*)but without notice, the assignees cannot com- 
 pel a redemption without payment of all the money ad- 
 vanced, that is, that the mortgagee not having had notice, 
 may make use of his prior legal estate as a protection 
 against the commission of bankruptcy. Upon the same 
 principle Lord Mansiield laid it down, that if an estate 
 
 (c) Wilker i-. Bodington, 2 Vern. 599 ; Anon. 2 Cha. Ca. 136 ; Col- 
 let r. De Gols, For. 65; and see 4 Burr. 2425; ex jjcirte Knott, 11 
 Ves. jun. 609 ; but see p. 581. 
 
 (d) Plitlicox r. Sedgwick, 2 Vern. 156 ; reversed in Dnm Proc. See 
 Journals of the House of Lords, vol. xiv. p. 601 ; and sec 7 East, 161. 
 See also Sowerby v. Brooks, 4 Barn. & Aid. 523, where the Court was 
 not aware of the reversal in D. P. of Hithcox v. Sedgwick. 
 
 (e) Vide stipra, vol. 2, p. 184 ; and see now 6 Geo. 4, c. 16, s. 81. 
 83. 85, 86 ; supra, vol. 2. p. 186. 
 
 (/) For. 65. 
 
 (I) Vide supra, s. 3, which states the acts of Parliament. 
 
 (*287)
 
 QQ2 OF NOTICE. 
 
 be purchased without notice of an act of bankruptcy, the 
 purchaser may protect himself by a satisfied term prior 
 to the act of bankruptcy still standing out(^). 
 
 In a case, however, before Lord Redesdale, in which 
 Collet and De Gois was incidentally mentioned, he is said 
 to have observed, that it is now the constant practice for 
 the assignees to compel a redemption on payment only of 
 what was advanced before the bankruptcy. He did not, 
 however, express any opijiion on the point(A). In a late 
 case before Lord Eldon(/), in whicii this question was 
 discussed, but did not call for a decision, his Lordship, in 
 the course of the argument, said, " the case of Collet v. 
 De Gols proves that money advanced after an act of 
 bankruptcy may be tacked and charged upon the estate, 
 notwithstanding the property is taken out of the bankrupt ; 
 and it was urged there, that he had nothing to convey 
 by the second mortgage, yet it was held, that though the 
 legal effect of the second mortgage is nothing, the Court 
 will consider it a second incumbrance. The distinction 
 was taken, that a secret act of bankruptcy does not prevent 
 tacking, as a commission issued actually does, that being 
 notice to all the world." In delivering judgment, he 
 observed, " that it was said, the act divests the bank- 
 rupt of all his interest, and when the commission follows, 
 it operates by relation from the time the act of bankruptcy 
 was committed : unquestionably it does ; and then the 
 person taking the second security really takes nothinp- • 
 (*)no interest passing from the bankrupt, and therefore 
 shall not tack. All the cases show that this objection will 
 not do, for then it would have been in vain to discuss 
 whether there is a difference between securities after an 
 act of bankruptcy, and after a commission issued. It fol- 
 lows of necessity that the law {qu. effecf] is the same in 
 
 ig) 4 Burr. 2426. (/i) i Scho. & Lef. 152. 
 
 (i) Ex parte KnoU, 11 Yes. jun. 609. 
 
 (*288)
 
 OF NOTICE. 
 
 333 
 
 both cases, for the operation of the commission is in 
 either case precisely the same, reducing to dust and ashes 
 the second security." 
 
 From these observations Lord Eldon's opinion appears 
 to be, that Collet v. De Gols is still a binding authority. 
 If it should be thought difficult to reconcile the last sen- 
 tence with what precedes it, that must give way to what 
 is before so clearly expressed. Perhaps, however. Lord 
 Eldon intended merely to say, that though the law is 
 different in these cases, yet the effect of the commission 
 is the same whether it issued previously to the second 
 mortgage, or subsequently to it, but upon a prior act of 
 bankruptcy. 
 
 A case came before Lord Erskine, in which the precise 
 point called for a decision. His Lordship considered 
 Lord Eldon and Lord Redesdale as having both expressed 
 their opinion against Collet v. De Gols, and he accord- 
 ingly overruled it, and decided that a mortgagee could 
 not tack advances subsequent to an act of bankruptcy, 
 although made without notice, and the mortgagee had 
 a prior legal estate(A;). 
 
 This decision must, it should seem, prevent a purchaser 
 who buys without notice of an act of bankruptcy, from 
 availing himself of a prior legal estate as a protection 
 against the commission ; and yet it has always been con- 
 sidered clear, that a purchaser could not in such a case 
 be disturbed. The cases, however, cannot be distin- 
 guished. The mortgagee was a purchaser /;ro tanto, and 
 (*)he, like a purchaser out and out, relied on his legal es- 
 tate prior to the act of bankruptcy as a protection against 
 the subsequent commission. But we have seen that it 
 was taken from him. 
 
 The decision is open to much observation. It entirely 
 subverts the established rule of equity, that a purchaser 
 
 (A;) Ex parte Herbert, 13 Yes. jun. 183. 
 
 (*289)
 
 334 
 
 OF NOTICE. 
 
 without notice shall not be relieved against, and an act 
 of bankruj)tcy is not of itself notice. It proceeded, too, 
 partly on an opinion attributed to Lord Eldon, but which, 
 it should seem, he never entertained ; and it escaped 
 observation, that, as we shall shortly see, it had been 
 decided in the House of Lords, that a mortgage without 
 notice may tack advances subsequently even to a commis- 
 sion of bankruptcy. That case must of necessity overf ule 
 all others, and the case of Collet V. De Gols may, there- 
 fore, be still thought to be a binding authority. 
 
 But where a purchaser claimed the benefit of Sir Samuel 
 Romilly's act(/), a commission issued, although after- 
 wards superseded, or a docket struck, would, by force of 
 the statute, have been constructive notice to him of any 
 prior act of bankruptcy. And now by the 6 Geo. 4, c. 16, 
 s. 83(m), the issuing of a commission shall be deemed 
 notice of a prior act of bankruptcy (provided an act of 
 bankruptcy has been actually committed before the issuing 
 of the commission), if the adjudication shall have been 
 notified in the Gazette, and the person to be affected by 
 such notice may reasonablj* be presumed to have seen 
 the same. 
 
 With respect to a commission of bankruptcy, it was, 
 in Hithcox v. Sedgwick, held by Lords Commissioners 
 Trevor and Hutchins, against Lord Commissioner Raw- 
 linson, (*)that a commission of bankruptcy was notice to 
 a purchaser ; and that case is considered by the Pro- 
 fession as having settled that a commission of bankruptcy 
 is of itself notice(w). 
 
 But it appears, that upon appeal to the House of Lords 
 
 (/) Vide supra, vol. 2. p. 186. 
 
 (ju) And see s. 85, 86 ; and supra, vol. 2. p. 190. 
 
 (n) See For. 70 ; 9 Ves. jun. 28 ; 1 Pow. Mortg. 663, 4th edit. ; 
 Cooke's B. L. 628, 2d edit. ; Cullen's B. L. 235 : 2 Cruise's Dig. 
 260; ex parte Knott, 11 Ves. jun. 609. 
 
 (*290) 
 
 1
 
 OF NOTICE. 
 
 335 
 
 the decree against Sedgwick was reversed, and the estate 
 ordered to be sold, and Sedgwick to be paid the 2,200/. 
 (the money advanced after the commission issued), with 
 interest, costs and charges, as mortgagees are usually 
 allowed ; which was of course deciding that a commis- 
 sion of bankruptcy is not of itself notice to a purchaser, 
 and that advances made without notice subsequently to 
 the commission may be tacked to the prior mortgage. In 
 the late Mr. Coxe's copy of Vernon, in Lincoln's-Inn 
 Library, is a note to the case of Hithcox v. Sedgwick 
 (which must have been written before the publication of 
 the Lords Journals), in which he states, that Mr. I. Ord 
 had told him the decree was reversed on appeal to the 
 House of Lords as against Sedgwick, and that he (Ord) 
 found it so said in a note of this case, taken by Lord 
 Trevor, in which he says, the decree was so reversed ; and 
 that he was counsel on the appeal for Sedgwick. 
 
 8. What is sufficient to put a purchaser upon an in- 
 quiry is good notice(o) ; that is, where a man has suffi- 
 cient information to lead him to a fact he shall be deem- 
 ed conusant of it(441«). Therefore, if a man knows that 
 
 (o) Smith V. Low, 1 Atk 4S9 ; Taylor t'. Baker, 1 Dan. 71. 
 
 (44lo) See Green v. Slaijler, 4 Johns. Ch. Rep. 38. Stei'ry v. Arden^ 
 1 Johns. Ch. Rep. 267. Willis v. Bucher, 2 Binn. 466 ; And see 
 Dey V. Dunham, 2 Johns. Ch. Rep. 182. S. C. on appeal, 15 Johns. 
 Rep. 565. 
 
 In Farnsworth v. Childs, 4 Mass. 637, where a second purchaser 
 had read a prior deed of conveyance for the purpose of giving his opin- 
 ion as to the form of it, the court considered that they were bound to 
 consider him as having knowledge of all the contents of the deed, not 
 being at liberty, as a jury was, to make a different inference. But 
 where the deed had lain by unrecorded for two years, without any ap- 
 parent change of possession or occupation, the defendant had no reason 
 to presume that the plaintiff's estate remained in him. The cre- 
 ditor's debt was bona fide, and the lands of the grantor were liable to 
 satisfy it. The grantee does not put his deed on record, and for per- 
 sonal reasons, he permits the visible possession and occupation to re- 
 main in the grantor : And no reason is assigned why the deed is not
 
 ggg OF NOTICE. 
 
 the legal estate is in a third person at the time he pur- 
 chases, he is bound to take notice what the trust is(p). 
 
 (p) Anon. 2 Freem. 137, pi. 711. 
 
 [ 
 
 recorded. If the grantee had entered into possession, the notice of the 
 prior conveyance would have been a continuing notice. But when the 
 wrantor remains in possession for a long time, during which the grantee 
 might have recorded his deed, hut does not do it ; it would be unrea- 
 sonable to defeat the subsequent title of a judgment creditor by imput- 
 ing to him a fraud ; because he might well presume, from the length of 
 time that the deed had remained unrecorded, either that it was not bona 
 fide, or that it had been cancelled, or that the estate had been recon- 
 veyed ; and if the first purchaser suffers, it is owing entirely to his own 
 neglect. If the grantee had taken visible possession of the estate be- 
 fore the levy or the second purchase^ the case would rest on different 
 principles, and would receive a different decision. 
 
 Generally the open and notorious possession of the first purchaser 
 under his deed would be sufficient to raise a legal presumption of no- 
 tice. But where the grantee of a part of a lot of land ; he being before 
 owner of the residue, only repaired the fences, put some cattle into the 
 lot and also cut and sold some trees from the part he had purchased ; 
 held, that these facts were not sufficient to imply notice. The repairing 
 the fence, setting aside the deed, would have been neither a disseisin 
 nor a trespass. Nor was the depasturing the small strip of improved 
 land ; for the tenant had a right to turn his cattle into his own pasture : 
 And as to the cutting the trees, it was but a mere trespass. The deed 
 was not followed by any apparent change in the possession. The pos- 
 session therefore was hardly sufficient to put a party on inquiry, and is 
 very slight ground for implied notice of a prior deed. M'Mechan v. 
 Griffing, 3 Pick. 149. 
 
 A deed was executed and delivered ; but befbre it was recorded, the 
 tenant attached the land : the deed having been executed on the 8th and 
 recorded early in the next morning : held, that the attachment had pri- 
 ority. Parker, C. J. "It is agreed that the attachment was made be- 
 fore the deed was recorded, but not until it was executed and delivered. 
 The case then turns upon the knowledge of the tenant of a title in the 
 demandant, when he caused his attachment to be made. If when he 
 set out to make this attachment, the title to the land had passed from 
 Cushing to the demandant by an actual delivery of the deed, then to in- 
 tercept him by an attachment before he could, with all due diligence, 
 procure a registry of his deed, might according to the case of Priest v.
 
 OF NOTICE. «g_ 
 
 So notice that tlie title-deeds are in another man's pos- 
 session may be held to be notice of any equitable claim 
 (*)which he may have on the estate, and as a security for 
 which he held the deeds(9)(442). 
 
 This doctrine has been carried so far, that notice that 
 j)art of the estate was in possession of a tenant hath been 
 holden to be notice of a lease, althougli the purchaser 
 took it for granted that the tenant was only so from year 
 to year(r)(443). And if the tenant has even changed his 
 
 iq) Hiein I". Mill, 13 Ves. jun. 114. 
 
 (r) See 2 Ves. jun. 440 ; 13 Ves. jun. 121. 
 
 Rice, 1 Pick. 168, be fraudulent, and his attachment would fail. But 
 here the deed was only about being made, and this fact the tenant knew. 
 He had a right to try his speed in this case, as much as if the demand- 
 ant had been about obtaining his security by attachment, and while his 
 writ was preparing, the tenant had procured the first attachment. The 
 principle which is -to govern this case, was settled in Warden v. Adams, 
 15 Mass. 233. It is not the knowledge of an intent to convey or at- 
 tach, which will prevent the legal effect of an attachment by another 
 creditor, which gets to be first in point of time, but a knowledge of an 
 actual passing the title, which is complete against every one with notice, 
 whether by registry or personal. The reasonable time to get a deed 
 recorded, is applicable only to cases of constructive fraud which may 
 be rebutted by such laches as would give ground to believe the bargain 
 had been rescinded, there being no regi.stry of the deed, and no change 
 of possession in the land conveyed. There is nothing in the position 
 against subsequently attaching creditors, or subsequent purchasers, with- 
 out notice." Gushing v. Hurd, 4 Pick 253. 
 
 (442) The mere circumstance of leaving the title deeds in the hands 
 of the mortgagor, is not, of itself, sufficient evidence of fraud, so as to 
 postpone the first mortgagee, to a second mortgagee, who has taken the 
 title deeds, without notice of the first mortgage. Beri^y v. Mutual Ins. 
 Co. 2 Johns. Ch. Rep 603. So, where a demise is made of a leasehold 
 estate, by way of mortgage, it is unnecessary to deliver the lease itself 
 to the mortgagee ; and the possession of it by the mortgagor is no evi- 
 dence of fraud ; because the registry act requiring the registry of mort- 
 gages, effectually secures the rights of subsequent purchasers" and mort- 
 gagees, against fraud. Johnson v. Siagg, on appeal, 2 Johns. Rep. 
 510. 
 
 (443) See Chesierman v. Gardner, 5 Johns. Ch. Rep. 29. 
 
 43 (*291)
 
 ggQ OF NOTICE. 
 
 character by having agreed to purchase the estate, yet 
 his possession amounts to notice of his equitable title as 
 purchaser(5) ; and consequently a subsequent purchaser, 
 although without actual notice, will be considered as a 
 purchaser of the seller's title, subject to the equity of the 
 tenant, the iirst purchaser, to have the estate conveyed to 
 him at the price which he had stipulated to pay to the 
 seller. In such a case, therefore, a specific performance 
 will be decreed in favor of the tenant against the seller, 
 and the second purchaser, and they will be left to settle 
 their rights between themselves(^). The cases have gone 
 so far, that a purchaser cannot be advised to complete 
 a contract for an estate not in the seller's own occupation 
 without a communication with the tenants, in order to 
 ascertain what their interests really are. So where a 
 tenant had an interest under an agreement posterior to 
 the lease under which he held, the purchaser was held 
 to be bound by it, although he had not notice of it(w}. 
 But a purchaser, where the possession is vacant, is not 
 bound to inquire of the late occupier what was the nature 
 of his title, and therefore would not be held to have 
 (*)implied notice of the information which he might have 
 obtained by inquiry(v). 
 
 Where a man had made an equitable mortgage to J.y 
 and upon afterwards giving a security to another person^ 
 stated that he had given a judgment or warrant of attor- 
 ney to A, for money borrowed of him, this was held to be 
 notice of the mortgage (a;). 
 
 In a late case, where a charity-lease was sought to 
 
 («) Daniels v. Davison, 16 Ves. 249 ; and see Crofton v. Ormsby, 2 
 Scho. & Lef. 683 ; Meux v. Maltby, 2 Swan^t. 181 ; Powell r. Dillon, 
 2 Ball & Beatt. 416. 
 
 (t) 17 Ves. jun. 433. 
 
 (u) Allen V. Anthony, 1 Mer. 282. 
 
 (v) Miles V. Langley, 1 Russ. & Myl. 39. 
 
 (x) Taylor v. Baker, 5 Price, 306. 
 
 (*292)
 
 OP NOTICE. cyan 
 
 be set aside as improvidentlj made, upon the common 
 equity, and it appeared that some of the parties stood 
 in the character of purchasers, Lord Eldon said, though 
 the purchaser of a lease has never been considered as a 
 purchaser for valuable consideration, without notice, to 
 the extent of not being bound to know from whom the 
 lessor derived his title, he (Lord Eldon) was not aware 
 of any case that had gone the length that the purchaser 
 was to take notice of all those circumstances under which 
 the lessor derived that title. Therefore, although the 
 parties before the court must be understood at least to 
 have notice that the lessors were trustees for a charitj, 
 yet he could not go the length that the purchasers had 
 notice that the lease was bad ; that depending on a Jium- 
 ber of circumstances dehors the lease(?/). 
 
 But this of course, as in all other cases of notice, only 
 prevails in equity ; for although a purchaser has actual 
 notice of a lease, yet if it be invalid, he may at law 
 recover the possession from the lessee(z). 
 
 Notice of a tenancy will not, it seems, affect a purchaser 
 with constructive notice of the lessor's title. Therefore, if 
 a person equitably entitled to an estate let it to a tenant 
 (*)who takes possession, and then the person having the 
 legal estate sells to a person who purchases bonajide and 
 without note of the equitable claim, the purchaser must 
 hold against the equitable owner, although he had notice 
 of the tenant being in possession. 
 
 So a purchaser bona Jide and Avithout notice cannot 
 be affected by the mere circumstance of the vendor 
 having been out of possession many years. Thus, in a 
 
 (y) Attorney-General v. Backhouse, 17 Ves. jun. 293. See 3 Ridg. 
 P. C. 512. 
 
 (z) Doe V. LufTkin, 4 East, 221. 
 
 (*293)
 
 340 '''' '''''''''''^■ 
 
 case(«)(I), where A. covenanted to surrender lands to 
 uses, which were enjoyed accordingly, although no sur- 
 render was made; and ^4., thirteen years afterwards, sur- 
 rendered the same lands to B. for valuable consideration, 
 without notice of the covenant, B. was holden to be en- 
 titled to the lands, and the covenantees were left to their 
 remedy at law. 
 
 In all cases where a purchaser cannot make out a title 
 but by a deed which leads him to another fact, whether 
 by description of the parties, recital or otherwise, he will 
 be deemed conusant thereof; for h was crassa negligentia 
 that he sought not after it(6)(444) ; and for the same rea- 
 son, if a purchaser has notice of a deed he is bound by all 
 its c«utents(c)(445). 
 
 (a) Oxwith V. Plummer, Bac. Abr. T. Mortgage, (E.) s. 3 ; 2 
 Vern, 636, S. C. 
 
 [h) Bisco V. Earl of Banbury, 1 Cha. C. 287 ; Moore v. Bennett, 2 
 Cha. Ca. 246 ; Ferrars v. Cherry, 2 Vern. 384 ; Drapers' Company 
 V. Yardley, 2 Vern. 662 ; Mertins v. Joliffe, Ambl. 313 ; Bury r. Bury, 
 Chancery, llth July 1748, MS. Appendix, No. 27; and Coppin v. 
 Fernyhough, 2 Bro. C, C. 291 ; S. P. per Lord Keeper Henley, in 
 Howarth v. Powell, T. Vac. 1758, MS. ; 1 Eden, 51, nom Howorlh 
 V. Deem ; Malpas v. Ackland, 3 Russ 273. 
 
 (c) Tanner v. Florence, 1 Cha. Ca. 259 ; Taylor v. Slibbert, 2 
 Ves. jun. 437 ; Hall v. Smith, MS. S. C. ; 14 Ves. jun. 426 ; Daniels 
 V. Davison, 16 V-es. jun. 249 ; which have overruled Phillips v. Redhel, 
 
 (I) From the report in Vernon, it seems that Lord Cowper thought 
 there was no specific agreement to surrender the copyhold to Oxwith ; 
 but the report in Bacon is very full and circumstantial. 
 
 (444) See Willis v. Bucher, 2 Binn. 466. A conveyance, with a 
 recital of the intent of the purchase, is a conveyance with notice, and the 
 grantee will take the estate subject to the trusts implied, as well as ex- 
 pressed. Cuyler v. Bradt, 2 Caines' Cas. in Error, 326. But a pur- 
 chaser of A., a trustee, is not chargeable with notice of a trust, by 
 means of the registry of a deed from B. to C, reciting, that A, had ex- 
 ecuted a declaration of the trust. Murray v. Ballou, 1 Johns. Ch. 
 Rep. 566. 
 
 (445) See Irvine v. Campbell, 6 Binn. 119,
 
 OF NOTICE. 
 
 341 
 
 (*)Ifa man agrees to purchase under limitations in a 
 deed, which makes it necessary upon that transaction for 
 him to look into that deed, and that deed contains recitals 
 of judgments affecting the lands he has so agreed to pur- 
 chase, he is bound by those judgments, for he had a right 
 to see the whole deed under which he purchased, and 
 therefore must be taken to have seen the whole, and must 
 consequently be presumed to have taken notice of every 
 thing contained in it affecting his purchase(</)(446). 
 
 So if an estate be subject to incumbrances, and be given 
 by the owner in consideration of another estate given to 
 him, the latter estate is subject in equity to the incum- 
 brances charged at law on the former, and a purchaser, 
 with notice of the transaction, is liable to the incum- 
 brances although he had not notice of them. This was 
 decided by Lord Redesdale, w ho considered it sufficient 
 that the purchaser, by notice of the deeds, had notice of 
 the equity, although he had not notice of the particular 
 incumbrance. This he said was an equity of which every 
 purchaser under a settlement must have notice ; for it is 
 a clear rule, that a man cannot claim under a deed, and 
 avoid the deed ; he must submit to the whole ; and he has 
 notice of every thing of which the vendor had notice, so 
 far as concerns that deed(e). This, it may be observed, 
 was an opinion not intended to decide the case, although 
 it was acquiesced in. It carries the rule much farther, it 
 is apprehended, than is warranted by either principle or 
 authority. 
 
 2 Vern. 160, cited ; where tenant for life sold as tenant in fee, and the 
 very settlement at the time of the purchase was delivered to the pur- 
 chaser himself, yet the Court would not atfect the purchaser with the 
 presumptive notice, but dismissed the bill. 
 
 (d) Hamilton v. Royse, 2 Scho. & I^ef. 326, per Lord Redesdale. 
 
 (e) Hamilton v. Royse, 2 Scho. & Lef. 315. 
 
 (446) See Morris v. Vanderen, 1 Dall. 64. 67. 
 
 (*294)
 
 342 "^ NOTICE. 
 
 But wliore a husband has not performed a marriage 
 agreement on his part, lie is not entitled to claim the be- 
 nefit of \x(f)i and a purchaser from him of the considera- 
 tion (*)for the settlement by the wife, with notice af the 
 deed, will be bound bj the same equity as the husband 
 was(^). 
 
 But the recital in a deed of a fact, which may or may 
 not, according to circumstances, be held in a court of 
 equity to amount to a fraud, will not, it seems, affect a 
 purchaser for valuable consideration denying actual notice 
 of the fraud(/i). Nor will circumstances amounting to a 
 mere suspicion of fraud be deemed notice thereof to a pur- 
 chaser. This question constantly arises in practice, on 
 sales by tenant for life, and a child to whom he has 
 appointed the estate under an exclusive power of appaint- 
 ment amongst his children. If there was any underhand 
 agreement between the father and son, the power would 
 be deemed fraudulently executed, and the other children 
 might be relieved against it. The difficulty on the part 
 of a purchaser is to ascertain what circumstances, inde- 
 pendently of a direct statement of the fact, are sufficient 
 to fix the purchaser with presumptive notice of fraud. 
 Lord Eldon has greatly relieved this difficulty by de- 
 ciding, that the mere circumstance of the father first con- 
 tracting to sell the estate, and then appointing to one 
 child, who joins in the sale, will not affect the purchaser 
 where the contract appears to have been fair, and the 
 purchase-money to have been paid to all the parties, and 
 there is nothing to show that the son was not to receive 
 a due proportion of the money(^). 
 
 (/) Mitford V. Mitford, 9 Ves. jun. 87. See Bascoi v. Serra, 14 
 Ves. jun. 313. 
 
 {g) Harvey v. Ashley, 2 Scho. & Lef. 328, cited. 
 
 (h) Kenny r. Browne, 3 Ridge. P. C. 512 .See 17 Ves. jun. 293. 
 
 (i) M'Queeu v. Farquhar, 11 Ves. jun. 467; vide supra, vol. 1. p. 
 363. 
 
 (*296)
 
 OF NOTICE. oua 
 
 Although a term assigned generally in trust to attend 
 the inheritance is equally char;^ed with the inheritance 
 itself, yet such a trust is not of itself notice to a purchaser 
 of any incumbrances; for it is notice of nothing but that 
 (*)there is an inheritance to be protected, and that the 
 term is attendant. It therefore gives notice to a purchaser 
 of nothing but what he had notice of by the deeds making 
 out the title to the fee. 
 
 But if in an assignment it be declared that the term is 
 assigned to attend the inheritance, as limited or settled by 
 such a deed, or to protect the uses of such a settlement, as 
 is sometimes done, that will be notice of the deed or set- 
 tlement, and consequently of all the uses of it, and the 
 purchaser is bound to find them out at his peril(/(:). 
 
 It has been said that the court-rolls are the title-deeds 
 of copyholds, and a purchaser is affected with notice of 
 the court-rolls, as far back as a search is necessary for 
 the security of the title(/). But this does not accord 
 with the general rule as to judgments, registered deeds, 
 and the like, and would lead to great inconvenience in 
 practice. It frequentfy happens that purchasers of pro- 
 perty of small value accept the title of a great family 
 under the last settlement, and it would be impossible to 
 hold that they were bound by notice of the contents of 
 th(^ early deeds if not referred to by the settlement. A 
 purchaser of a copyhold estate is furnished with aa 
 abstract of the surrenders and admissions, and requires 
 copies of the material ones ; but, in point of fact, the 
 court-rolls are scarcely ever searched by a purchaser, and 
 it has always been understood, in practice, that he is not 
 bound by notice of their contents. 
 
 9. The better opinion seems to be, that being a witness 
 to the execution of a deed will not of itself be notioe ; for 
 
 (k) Willoiighby v. Willoughby, 1 T. Rep. 763 ; 1 Col. Jurid. 337. 
 (/) Pearce v. IVewlyn, 3 Madd. 186. 
 
 (*296)
 
 344 ^^ NOTICE. 
 
 a witness, in practice, is not privy to the contents of the 
 deed(w). 
 
 (*)This question has hitherto only occurred between a 
 first mortgagee, who witnessed a second mortgage, and 
 the second mortgagee ; but it might arise between a pur- 
 chaser who had, previously to his purchase, attested the 
 execution of a deed relating; to the estate, and the persoii 
 in whose favor the deed was executed. 
 
 Lastly, it remains to consider, whether a purchaser is 
 bound to take notice of the mere construction of words 
 which are uncertain in themselves, and often depend on 
 the locality of them for the interpretation which they may 
 receive. 
 
 This question arises where a settlement is made in 
 pursuance of articles ; but the estate is, contrary to the 
 intention of the parties, limited so as to enable the 
 parent to dispose of it. It is clear that .the Court will 
 rectify the settlement according to the intention, in favor 
 of the issue, as between themselves, or as between them- 
 selves and persons claiming under the parent without 
 consideration ; but this has never yet been done against 
 a purchaser(7i). 
 
 In Senhouse v. Earle(o), Lord Hardwicke drew a dis- 
 tinction between ancient articles of this sort and modern 
 ones, and expressed his opinion, that in the case of 
 ancient articles the purchaser should not be disturbed, 
 because modern methods of conveyancing were not to 
 be construed to affect ancient notions of equity ; but in 
 
 (m) Mocatta v. Murgatroyd, 1 P. Wms. 393 ; Editor's and Cox's 
 notes, ibid. ; Welford v. Beezley, 1 Ves. 6 ; Beckett v. Cordley, 1 
 Bro. C. C. 367. See 1 Ves. jun. 55 ; and see Harding v. Crethorn, 1 
 Esp. Ca. 56 ; Holnnes v. Custance, 12 A'^es. jun. 279; Biddulph v. St. 
 John, 2 Scho. & Lef. 521 ; Reed v. Williams, 5 Taunt. 257; 6 Dow, 
 224. 
 
 (n) Warrick v. Warrick, 3 Atk. 291. 
 
 (o) Ambl. 285. 
 
 (*297)
 
 OF NOTICE. 3^^ 
 
 case of notice of modern 'drticles, he thought the Court 
 ought to carry them into execution against a purchaser. 
 But in a later case(;9), Lord Northington seemed rather of 
 opinion that no relief should be granted against a pur- 
 chaser ; (*jbut this case is not satisfactory, as the lan- 
 guage attributed to the Chancellor, on the principal ques- 
 tion in that case, is by no means consistent u ith the prior 
 cases on the subject. 
 
 Under these circumstances, a purchaser cannot be 
 advised to accept a title depending on a settlement made 
 in pursuance of articles, but not framed according to the 
 general rules of equity(^) ; and, certainly, a court of 
 equity would not enforce a purchaser to take such a title, 
 although no relief might be granted to his prejudice if he 
 actually had purchased. 
 
 III. Having endeavored to show what will be deemed 
 notice, either actual or constructive, we are now to inquire 
 what will be sufficient proof of such notice. 
 
 It seems that the counsel, attorney or agent of the 
 purchaser, cannot be admitted to prove notice(447). 
 
 In Maddox v. Maddox(r), the reading of the deposition 
 
 (p) Cordwell v. Mackrill, Ambl. 515 ; and see Hardy v. Reeves, 4 
 Ves. jun. 466 ; 5 Ves. jun. 426 ; Parker i'. Brooke, 9 Ves. jun. 683 ; 
 and Matthews v. Jones, 2 Anstr. 596. 
 
 {q) See Fearne's Posth. 315. 
 
 (r) 1 Ves. 62 ; and see Bishop of Winchester r. Foumier, 2 Ves. 
 445. 
 
 (447) See Blair v. Oivles, 1 Munf. 38. contra. Every agent is a 
 competent witness, ex necessitate. Mackay v. Rliinclander, 1 Johns. 
 Cas. 408. Jones v. Hake, 2 Johns, Cas. 60. Abbot v. Sebor, 3 
 Johns. Cas. 47. Steivart v. Kip, 5 Johns. Rep. 256. Cortes v. Bil- 
 lin<rs, 1 Johns. Cas. 270. Alston v. Jones, 1 Murph. 45. Ried v. 
 Colcock, 1 Nott & M'Cord, 592. Connelly v. C/ij7es, 2 Marsh. Ken. 
 Rep. 242. Kirkpatrick v. Cisna, 3 Bibb, 244. Alexander v. Emerson, 
 2 Litt. 27. Phillips v. Bridge, 1 1 Mass. Rep. 242. 
 
 44 (*298) 
 
 VOL. II. ^* ^ '
 
 Q tg OF NOTICE. 
 
 of the agent of the purchaser, who swore, in proof of 
 notice, that the deeds were laid before counsel, who made 
 objections about the plaintiff's title, was objected to ; but 
 Lord Hardwicke said, that though an attorney or counsel 
 concerned for one of the parties may, if he pleases, demur 
 to his being examined as a witness, yet if he consents, 
 the Court will not refuse the reading his deposition. This 
 objection, he added, had often been made ; and though 
 some particular Judges had doubted, it was then always 
 over-ruled. And, on investigation, it will, I believe, be 
 found that Lord Hardwicke invariably adhered to this 
 opinion. But it was settled before Lord Hardwicke's 
 time(5), and has been the observed rule of the Courts 
 (*)eversince(i), that counsel and attornies ought not to be 
 permitted to discover the secrets of their clients, though 
 they offer themselves for that purpose, and this is the 
 privilege of the client, not of the counsel or attorney(I) ; 
 for it is contrary to the policy of the law to permit any 
 person to betray a secret with which the law has intrusted 
 him (448). 
 
 But a communication by mistake to a person not ac- 
 tually an attorney, although considered so by the person 
 making it, is not protected(w)(449) ; and an attorney may 
 
 (s) Lord Say and Seal's case, 10 Mod. 41. See Lee v. Markham, 
 Toth. 110 ; and Anon. Skin. 404. 
 
 {t) Lindsay v. Talbot, Bull. N. P. 284 ; Wilson v. Rastall, 4 Term 
 Rep. 753 ; and see 2 Esp. N. P. 716 ; Wright v, Mayer, 6 Ves. jun. 
 280 ; Sloman v. Heme, 2 Esp. Ca. 695 ; Robson v. Kemp, 5 Esp. Ca. 
 52; Brand v. Ackerman, ib. 119; Rex v. Withers, 2 Camp. 57S ; 
 Parkhurst v. Lowten, 2 Swanst. 194. 
 
 (tt) Fountain v. Young, 6 Esp. Ca. 113. 
 
 (I) This was insisted upon in the reasons in Radcliffe v. Fursman, 
 in the year 1730. See printed cases, Dom. Proc. 
 
 (448) See Mills v. Griswold, 1 Root, 383. Riggs v. Denniston, 3 
 Johns. Cas. 198, 202 ; et seq. And see Clay v. Williams, 2 Munf. 
 105. 
 
 (449) See Andrews v. Solomon, 1 Peters' Rep. 369. 
 (*299)
 
 OF NOTICE. oA^-y 
 
 give evidence of the time of executing a deed, for a thing 
 of such a nature cannot be called the secret of his client, it 
 is a thing he may come to the knowledge of without his 
 client's acquainting him, and is of that nature that an 
 attorney concerned, or any body else, may inform the 
 Court of(i;)(450). 
 
 So, if an attorney put his name to an instrument as a 
 witness, he makes himself thereby a public man, and no 
 longer clothed with the character of an attorney ; his sig- 
 nature binds him to disclose all that passed at the time 
 respecting the execution of the instrument ; but not what 
 took place in the preparation of the deed, or at any other 
 lime, and not connected with the execution of it. Every 
 person who claims an interest in the property, has a right 
 to call upon the attorney, as being the attesting wit- 
 iiess(a') ; nor does this privilege extend to communica- 
 tions (*)from collateral quarters, although made to him in 
 consequence of his character of attorney ; the privilege 
 is restricted to communications, whether oral or written, 
 from the client to his attorney(?/), but it is not necessary 
 that a cause should have commenced(z)(451). 
 
 If notice be only proved by one witness, a positive and 
 express denial by the answer will prevent the Court from 
 decreeing against the answer(a)(452) : for in equity the 
 
 (v) Lord Say an J Seal's case, 10 Mod. 41. 
 
 (x) Kobson V. Kemp, 5 Esp. Ca. 52 ; Doe v. Andrews, Cowp. 846. 
 
 (u) Spcnceley v. Schulenburgh, 7 East, 357. 
 
 (») Clark V. Clark, 2 Mood. & Malk. 3. 
 
 (a) Alam v. Jourdon, 1 Verri. 161 ; 3 Cha. Ca. 123 ; Kingdorae v. 
 Boakes, Prec. Cha. 19; Mortimer r. Orchard, 2 Ves. jun. 243; and 
 see Evans v. Bickneli, 6 Ves. jun. 174 ; 3 Cha. Ca. 123 ; Dawson v. 
 Massey, 1 Ball & Beatty, 234 ; Cooke v. Clayworth, 18 Ves. 12. 
 
 (450) See Baker v. Arnold, 1 Caines' Rep. 258. ; and note a. 
 
 (451) See Hoffman v. Smith, 1 Caines' Rep. 157. 
 
 (452) See Smith v. Brush, 1 Johns. Ch. Rep. 459, 461, 462. 
 BnghVs heir v. Hufcgin, Hardin, 536. Heffner v. Miller, 2 Munf. 43. 
 
 (*300)
 
 o^o OF NOTICE. 
 
 general rule is, that if the answer contains a positive denial 
 of the case stated in the bill, and it is contradicted by 
 one witness only, there cannot be a decree against the 
 defendant, unless the circumstances so preponderate, that 
 greater credit, upon the testimonies of both being fairly 
 balanced, must be given to the depositions of the witness 
 than to the answer of the defendant ; laying aside all 
 recollection that the oath of one of the parties is that of 
 an interested person (6). 
 
 But w^here it is not a positive denial of the same fact, 
 but admits of a difference, that it is only a denial with 
 respect to himself, whereas in other respects it will 
 equally affect him, there are several cases where the 
 Court, on one undoubted witness, would decree against 
 the answer ; for instance, a person denying only personal 
 notice is a negative pregnant, that still there may be no- 
 tice to his agent, which is a fact equally material(c)(453). 
 
 And where the answer is not ad idem, the charge being 
 positive, and the answer only to belief, which is not snffi- 
 
 {b) Per Lord Eldon, East India Company v. Donald, 9 Ves. jun. 
 275 ; 1 Smith, 213. 
 
 (c) See 1 Ves. 66 ; 3 Atk. 650. 
 
 Maupin v. Whiting, 1 Call, 224. Pryorv. Adams, 1 Call, 390. Beatly 
 V. Smith, 2 Hen. & Munf. 395. See also 9 Cranch, 160. Sullivan v. 
 Bates, 1 Litt. 42. MBowel v. Teasdale, I Des. 459. JYeufville v. 
 Mitchell, 1 Des. 480. Clark's Admrs. v. Van Reimsdijk, 9 Cranch, 153, 
 156. Clason \, Morris, on appeal, 10 Johns. Rep. 524. Zijlstrav. 
 Keith, 2 Des. 140. But an answer, though in form responsive to a 
 question put in the bill, is not evidence, where it asserts a right affirma- 
 tively, iu opposition to the plaintiff's demand ; but the defendant is as 
 much bound to establish such assertion by independent testimony, as the 
 plaintiff is to sustain his bill. Paynes v. Coles, 1 Munf. 373. See Hart 
 V. Ten Eyck, 2 Johns. Ch- Rep. 62. See also, 1 Johns. Dig. 225. pi. 
 514. And see note a. in Hart v. Ten Eycf.; 2 Johns. Ch. Rep. 91. 
 
 (453) An evasive answer, though no exception be taken, will be out- 
 weighed by the testimony of one witness, connected with corroborative 
 circumstances. Wilkins v. Woodfin, 6 Munf. 183.
 
 OF NOTICE. o vq 
 
 cient (*)to contradict what is positively sworn, a single 
 witness will be sufficient(f/). 
 
 So where there are a great many concurring circum- 
 stances, that strengthen and support the depositions of a 
 single witness, his evidence alone will enable the Court 
 to decree against the answer(e)(454). 
 
 If the evidence is not clear enough to enable the Court 
 to make a satisfactory decree, it will be sent to law to be 
 tried(y), unless the value of the property will not admit 
 ofit(o-)(455). 
 
 But the same rule that would absolutely prevent a de- 
 cree from being made will restrain the Court from direct- 
 ing an issue(/i) ; for the matter is only referred to law, to 
 know what a court of equity ought to do(i) ; and sending 
 it to law to be tried, where the jury will certainly find it 
 on the testimony of one witness, and then decreeing it on 
 that verdict, is the same thing as decreeing on one wit- 
 ness, without trying it at all(A:). 
 
 Formerly, an issue used to be directed, although upon 
 the evidence a decree could not be made(/), and in such 
 
 (d) See 1 Ves. 97 ; and see Pilling v. Arraitage, 12 Yes. jun. 78. 
 
 (e) Walton v. Hobbs, 2 Atk. 19 ; Anon. 3 Atk. 270 ; Only v. AValker, 
 3 Atk. 407 ; Pember v. Mathers, 1 Bro. C. C. 52 ; East 1. C. v. 
 Donald, 9 Ves. jun. 275 ; 1 Smith, 213 ; and see 6 Ves. jun. 40 ; 
 Biddulph r. St. John, 2 Scho. & Lef. 521. 
 
 (f) Arnot V. Biscoe, 1 Ves. 95. 
 
 (g) JoUand v. Stainbridge, 3 Ves. jun. 478. 
 {h) Pember v. Mathers, 1 Bro. C. C. 52. 
 
 (t) See 1 Bro. C. C. 53, 54 ; 9 Ves. jun. 284 ; 1 Smith's Rep. 219. 
 
 (A;) See 1 Eq. Ca. Abr. 229, pi. 13. 
 
 (Z) Stadd V. Cason, Toth. 230 ; Ibbotson v. Rhodes, 2 Vern. 554 ; 
 1 Eq. Ca. Abr. 229, pi. 13, S. C. ; Cant v. Lord Beauclerk, 3 Atk. 
 408, cited ; sed vide Christ College v. Widdingtou, 2 Vern. 283. 
 
 (454) See Ilart v. Ten Eyck, 2 Johns. Ch. Rep. 92. 
 
 (455) See JVaters v. Travis, 9 Johns. Rep. 450, 457. 
 
 (*301)
 
 350 ^^ NOTICE. 
 
 cases the defendant's answer was to be read at the trial, 
 not as evidence, for that could not be, nor was it to be 
 admitted to be true, but to be sworn, so that the defend- 
 ant might have the benefit of his oath at law as well as 
 (*)\n equity, if it would have any weight with the jury. 
 But this could only be done where it was merely oath 
 against oath(m) ; and as an issue would not now be di- 
 rected in such a case, the answer of the defendant cannot, 
 it should seem, at the present day, be directed to be read 
 at a trial at law. But if a bill is filed for a discovery only, 
 the answer of the defendant may of course be read on the 
 trial(n). 
 
 It must be remarked, that if the notice arise by con- 
 struction of equity on a deed which is in the possession 
 of the purchaser(o), and he contend that it did not come 
 into his custody till after the completion of his purchase, 
 the proof thereof will lie on him(p). 
 
 In one case(q), however, although the only evidence 
 of the deed being in tin) possession of the defendant was 
 the discovery in his answer, and on the deed being pro- 
 duced the counsel offered to read the answer, to show 
 that it had not been delivered to him till lately, and long 
 after he had purchased the estate. Lord Hardwicke re- 
 fused it, although it was argued to be very hard ; because 
 the only account of the delivery of the deed was in the 
 answer ; and by its not being permitted to be read the 
 deed must be taken to be in his custody at the time of 
 the purchase, ten years before it actually was. 
 
 But it seems, that the defendant had sufficient notice, 
 
 (w) Only V. Walker, 3 Atk. 407. 
 
 (») See 9 Ves. jun. 282 ; 1 Smith, 218. 
 
 (oj See 1 Ves. 392. 
 
 ip) See 2 Ves. 486. 
 
 (q) Mertins r. Joliffe, Ambl. 311. 
 
 (*302)
 
 OF NOTICE. 
 
 351 
 
 besides the mere custody of the deed. His conveyance 
 recited all the former deeds ; and therefore reading the 
 answer, to prove when the deed in question came into 
 his custody, was perfectly unnecessary. This case, 
 therefore, cannot be deemed subversive of the general 
 rule.
 
 [ 352 ] 
 
 nCHAPTER XVIII. 
 
 OF PLEADING A PURCHASE. 
 
 " Supposing a plaintiff to have a full title to the relief 
 he prays, and the defendant can set up no defence in bar 
 of that title, yet if the defendant has an equal claim to 
 the protection of a court of equity to defend his posses- 
 sion, as the plaintiff has to the assistance of the Court to 
 assert his right, -the Court will not interfere on either 
 side. This is the case where the defendant claims under 
 a purchase for valuable consideration, without notice of 
 the plaintiff's title, which he may plead in bar of the 
 suit"(«). 
 
 The principle of this plea, Lord Eldon observes, is 
 this : " I have honestly and bona fide paid for this estate, 
 in order to make myself the owner of it ; and you shall 
 have no information from me as to the perfection or im- 
 perfection of my title until you deliver me from the peril 
 in which you state I have placed myself in the article of 
 purchasing bona fide^^(b). 
 
 This plea is a peremptory plea, and must be sworn by 
 the pleader(c)(456). It must be put in ante litem con- 
 testatam, because it is a plea why an answer should not 
 be put in ; and, therefore, if a defendant answers to any 
 
 (a) Mitford on Pleading, 2d edit. p. 215 ; Gough r. Stedman, Finch, 
 208. 
 
 (6) See Wallwyn v. Lee, 9 Ves. jun. 24. 
 (c) Marshall v. Frank, Free. Cha. 480. 
 
 (456) See Snelgrove v. Snelgrove, 4 Des. 286. 
 (*303) 
 
 I 

 
 OF PLEADING A PURCHASE. ©r,* 
 
 thing to whicli he may plead, he over-rules his plea(rf)(457) 
 but he (*)may answer any thing in subsidhun of his plea, 
 as he may deny notice in his answer, which he may deny 
 also in his plea ; because that is not putting any thing to 
 issue which he should cover by his plea from being put in 
 issue, but it is adding, by way of answer, that which will 
 support his plea, and not an answer to a charge in the bill, 
 which by the plea he would decline(e). 
 
 But the purchaser must protect himself by plea, for if 
 he answer, he is bound to answer fully. 
 
 The plea must state the deeds of purchase, setting 
 forth the dates, parties and contents briefly, a?id the time 
 of their €xecution(\), for that is the peremptory matter in 
 barr/;(II)(458). 
 
 It must aver that the vendor was seised, or pretended to 
 be seised at the time he executed the conveyance(^)(459). 
 
 {d) Richardson v. Mitchell, Sel. Cha. Ca. 51 ; Blacket v. Langlands, 
 1 Anstr. 14. 
 
 (e) Gilb. For. Ronx. 58. See Hoare v. Parker, 1 Bro. C. C. 573. 
 
 (/) See Gilb. For. Rom. 58 ; Aston v. Aston, 3 Atk. 302; and 2 
 Ves. 107. 396 ; and see Wallwyn v. Lee, 9 Ves. jun. 24. 
 
 {g) Story V. Lord Windsor, 2 Atk. 630 ; Head v. Egerton, 3 P. 
 Wms. 279; and see 17 Ves. jun. 290; Jackson r. Rowe, 4 Russ. 
 614. 
 
 (I) Qu. this, as the plaintiff might thereby be enabled to proceed 
 against the defendant at law. See Anon, 2 Cha. Ca. 161. In Day r. 
 Arundel, Hard. 510, it was expressly held that the time of the purchase 
 need not be stated in the plea. 
 
 (II) It seems, that the practice formerly was, to extend the plea 
 to the discovery even of the purchase-deeds ; and in Watkins v. 
 Hatchet, 1 Eq. Ca. Abr. 33, pi. 3, although the purchaser improvi- 
 dently offered to produce his purchase-deeds, yet the Court would not 
 bind him to do so. 
 
 (457) See Snelgrove v. Snelgrove, ut supra. 
 
 (468) See Snelgrove v. Snelgrove, 4 Des. 286, 
 
 (469) See 4 Des. 287. 
 
 vol.. II. 45 (*304)
 
 3^^ OF PLEADING A PURCHASE. 
 
 In Carter v. Pritchard(/i) it was held, that the plea of 
 a purchase without notice must aver the defendant's belief 
 that the person from whom he purchased was seised in 
 fee. If it be charged in the bill that the vendor was only 
 tenant for life, or tenant in tail, and a discovery of the 
 (*}title be prayed, such a discovery cannot be covered, 
 unless a seisin is sworn in the manner already mentioned, 
 or that such fines and recoveries were levied and suffered 
 as would bar an entail if the vendor was tenant in tail ; 
 for if a purchase by lease and release should be set forth, 
 which would pass no more from the tenant in tail than it 
 lawfully may pass, and that is only an estate for the life 
 of the tenant in tail(I), then there is no bar against the 
 issue(i). Where, however, a fine is pleaded, the plea 
 must aver an actual seisin of a freehold in the vendor, and 
 not that he was seised, or pretended to be seised(/c). 
 
 If the conveyance pleaded be of an estate in posses- 
 sion, the plea must aver that the vendor was in possession 
 at the time of the execution of the conveyance(/). And 
 if it be of a particular estate, and not in possession, it 
 must set out how the vendor became entitled to the rever- 
 sion(m). But although a bill be brought by an heir, 
 
 {h) Michael. Term, 12 Geo. 2, 1739 ; 2 Vivian's MS. Rep. GO, in 
 Lincoln's Inn Library ; see Jackson v. Rowe, 4 Russ. 514. 
 
 (i) Gilb. For. Rom. 57, 
 
 {h) Story v. Lord Windsor, 2 Atk. 630 ; and see Paige v. Lever, 
 2*Ves. jun. 450 ; Dobson v. Leadbeater, 13 Ves. jun. 230. 
 
 (/) Trevanian v. Mosse, 1 Vern. 246 ; and see 3 Ves. jun. 226 ; and 
 3 Ves. jun. 32. 
 
 (m) Hughes v. Garlh, Ambl. 421. 
 
 (I) This is the doctrine of Littleton, with which, it seems, Gilbert 
 agrees ; but since Littleton's time it has-been held, that the releasee 
 has a base fee determinable by the entry or action of the issue. See 
 Butler's n. (1) to Co. Litt. 331, a. and the authorities there referred to. 
 But now estates tail may be barred by deed, 3 & 4 Will. 4, c. 74. 
 
 (*306)
 
 OF PLEADING A PURCHASE. 
 
 356 
 
 the plea need not, on that account, aver the purchase to 
 be from the plaintiff's ancestor(w). 
 
 The plea must also distinctly aver that the considera- 
 tion-money mentioned in the deed was bona Jide 'and truly 
 paid(o)(460), independently of the recital of the purchase- 
 
 («) Seymour v. Nosworth, 2 Freeni. 12S ; 5 Ch. Rep. 23 ; Nels. 
 Cha. Rep. 135. 
 
 (o) Moor V. Mayhow, 1 Cha. Ca. 34. See 2 Atk. 241. 
 
 (460) See 4 Des. 2S7. 
 
 The point decided in Wilkinson v. Scott, 17 Mass. 249, was, that 
 an action would lie in favor of the grantor against the grantee to re- 
 cover a part of the consideration, although he expressly acknowledged 
 in the deed that he had received the consideration : on the ground that 
 to consider the acknowledgment as conclusive evidence of the fact, in- 
 justice might be done. The case did not show an intent to contradict 
 the deed, but merely to shew a mistake in giving security for the con- 
 sideration. The consideration is known to be arbitrary and is frequent- 
 ly difierent from the real consideration of the bargain. (14 Johns. 
 210.) ' It is so, we think also with regard to the acknowledgment of 
 payment. It is but a receipt which is always open to explanation, 
 though under seal.' 
 
 In the subsequent case of Griswold v. Messenger, 6 Pick. 617, where 
 the case was very similar ; except in the latter case the parol evidence 
 was offered to show that the true consideration was a promise on the 
 part of the defendant to convey the same land to a third person ; and 
 upon his refusal so to do, the action was sued to recover the value : the 
 court overruled the evidence and rendered judgment for the defendant. 
 
 The distinction therefore, would seem to be, that where a particular 
 consideration is expressed, no other consideration can be averred, but 
 any consideration not inconsistent with that expressed in the deed may 
 be averred, and the true consideration shown, when the object is not to 
 invahdate the deed. Morse v. Shattuck, 4 n. H. R. 229 ; Jackson r. 
 Pike, 9 Cowen, 69. S. P. A party is precluded denying any consider- 
 ation, but not the amount or nature of it. Belden v, Seymour et al., 
 6 Conn. R- 304. 
 
 Whether the consideration expressed in a deed is conclusive and 
 not to be controverted by parol evidence has been the subject of some 
 diversity of decision. In Jackson r. Howell. 4 Cowen, 427, Savage, 
 C. J. said ' it is settled that where there is a consideration stated in a 
 deed, and it is not said for other considerations, you cannot enter into
 
 556 
 
 OF PLEADING A PURCHASE. 
 
 proof of any other, for that would be contrary to the deed ' And Rich- 
 ardson, C. J. (4 N. H. R. 229) 'It is well settled as a general rule 
 that in a court of law, when a consideration is expressed to have been 
 paid in la deed made for the purpose of conveying land, the law will 
 permit no averment to the contrary. When a particular consideration is 
 expressed, no other consideration can be averred, but any consideration 
 not inconsistent with that expressed in the deed may be averred, and the 
 true consideration shown, when the object is not to invalidate the deed.' 
 • And parol proof is admissible, when it is in corrobonition of the con- 
 sideration.' Per Savage, C. J. 9 Cowen, 69. And Tilghman, C. J. 
 in 10 S. 6t R*. 329. ' It is clear, beyond doubt, that any consideration, 
 not contradictory of that which is mentioned in the deed, may be averred, 
 and proved by parol evidence. Where a conveyance is made by deed 
 of bargain and sale, for a consideration of money, it may be averred, 
 that there was also a consideration of natural love and aiiection, in con- 
 sequence of which, the deed may operate by way of covenant to stand 
 seised. In the case before us, where the deed is, in form a bargain and 
 sale, in consideration of money, the land passes by bargain and sale, 
 and parol evidence would be inadmissible for the purpose of showing, 
 that there was no consideration of money. That would be in direct 
 contradiction of the deed, and would defeat its operation. But, that be- 
 sides the consideration of money, there was a consideration of advance- 
 ment to the daughter of the bargainer, and that the true intent of the 
 parties was, to convey to the husband, several tracts of land, valued 
 altogether at $1000, for which he was to pay but $200, after the death 
 of the father, and the remaining $S00, was to be considered as an ad- 
 vancement to the daughter ' And Johnson, J. in Garrett v. Stewart, 1 
 M'Cord, 614, ' Legitimate considerations are either good or valuable 
 and after some attention to the subject my mind inclines to the conclu- 
 sion that the distinction is, that where one of these is expressed, parol 
 evidence cannot at law be permitted to show the other, but that it may 
 be admitted to show a greater or less of the same character. This is 
 different from the principle laid down in Hyne's Representative v. Camp- 
 bell, 6 Munroe's R,. 286, where the court say some authorities have gone 
 so far ; where consideration alone is stated, as to allow averment and 
 proof of another additional consideration. Whether this last position is 
 tenable, is by some decisions rendered questionable. But the additional 
 consideration proved must be of a difterent character or quality, and 
 not a mere increase ; such as when the conveyance said one dollar, to 
 add thereto by inferior proof one thousand. 
 
 The better opinion, however, is, timt a further or larger consideration 
 than the one expressed in the deed may be proved by parol evidence.
 
 OF PLEADING A PURCHASE. 
 
 Sol 
 
 deed(/;)(461) ; for if the money be not paid, the plea will 
 be (*)overruled((/)(462), as the purchaser is entitled to 
 relief against payment of it(?)(463). The particular con- 
 sideration must, it should seem, be stated(5), although this 
 
 (p) Mtiilland v. Wilson, 3 Atk. 8M. 
 (q) Hardingham v. Nicholls, 3 Atk. 304. 
 (?) See siipia, vol. i. p. 654. 
 
 (s) Millard's case, 2 Freem. 43 ; and Snag's case, cited ibid. ; and 
 see WagstafFr. Read, 2 C'ha. Ca. 156. 
 
 Thus, in Belden v. Seymour, 8 Conn. R. 304, which was covenant in 
 
 respect to a conveyance of land : and the consideration acknowledged 
 in the deed was $1800. The plaintiM" proposed to prove that the consi- 
 deration was in fact $2800 ; but the evidence was not admitted at the 
 trial. But upon a motion for a new trial, Daggett, Peters & Williams, 
 Justices considered that the evidence was admissible. The former 
 judge commented upon the cases cited from Johnson's Reports, viz. 1 
 Johns. 139 ; 3 ib. 606 ; 7 ib. 341 ; and the cases of Bradley et al. v. 
 Biodgelt, Kiiby's R. 22 ; Northorp r. Speary, 1 Day's R. 23 ; and 
 concluded ' that the purpose of the acknowledgment and receipt in a 
 deed is to prevent a resulting trust in the grantor ; and that it is merely 
 nominal.' The Chief Justice dissented, considering the consideration 
 expressed in the deed to be conclusive. 
 
 In Shepherd r. Little, 14 Johns. 210, it was held, that assumpsit 
 would lie to recover the consideration money of land sold. And where 
 the payment or the amount of the consideration becomes a material in- 
 quiry ; parol evidence is admissible to show that it has not been paid. 
 Bowen V. Bel), 20 Johns. 338. ' When one species of consideration is 
 expressed, another, or different one, cannot be proved, neither can parol 
 proof be admitted substantially to vary or contradict a written contract;' 
 Per Wood worth, J. ibid. But the Court, Parker, C. J. in Bullard r. 
 Briggs, 7 Pick. p. 537, says, ' The consideration proposed to be proved 
 is different from that which is expressed in the deed, and it is objected 
 that the deed is conclusive upon this point ; but wo (hinU it has been 
 reasonably settled, that this matter is open to evidence. More or less 
 than is expressed in a deed may be proved by parol evidence as the 
 consideration, and even a different consideration, if valuable, may be 
 proved.' 
 
 (461) See 4 Des. 287. 
 
 (462) See 4 Des. 287 ; and see Murray v. Fiusler, 2 Johns. Ch. 
 Rep. 157. 
 
 (463) See 4 Des. 287. 
 
 (*306)
 
 358 
 
 OF PLEADING A PURCHASE. 
 
 point has been decided othervvise(i)(464). There can, 
 however, be no objection to slate the consideration, as, if 
 it be vahiabh'*, the plea will not be invalidated bj mere 
 inadequacy(w)(465). The question is not whether the 
 consideration is adequate, but whether it is valuable. For 
 if it be such a consideration as will not be deemed fraudu- 
 lent within the statute of 27th Elizabeth, or is not merely 
 nominal(a;), or the purchase is such a one as would hin- 
 der a puisne purchase from overturning it, it ou^ht not 
 to be impeached in equity. 
 
 The plea must also deny notice of the plaintiff's title 
 or claim(?/)(466) previously to the execution of the deeds 
 and payment of the purchase-money (2:) ; for till then the 
 transaction is not complete ; and, therefore, if the pur- 
 chaser have notice previously to that time he will be 
 bound by it(«). And the notice so denied must be 
 notice of the existence of the plaintiff's title, and not 
 merely notice of the existence of a person who could 
 claim under that title(6). But a denial of notice at the 
 time of making the purchase, and paying the purchase- 
 money, (*)is good(467) ; and notice before the purchase 
 
 {I) Mooru. Mayhow, 1 Cha. Ca. 34 ; Day v. Arundell, Hard. 610. 
 
 («) Basset v. Nosworthy, Finch, 102; Ambl. 767; Mildmay v. 
 Mildmay, Ambl. 767, cited ; Bullock v. Sadlier, Ambl. 764. 
 
 {x) See Moor v. Mayhow, 1 Cha Ca. 34 ; Wagstaff*. Read, 2 
 Cha. Ca. 156. 
 
 (j/) Lady Bodmin v. Vendebendy, 1 Vern. 179 ; Anon. 2 Ventr. 361, 
 No. 2. 
 
 {z) Moor r. Mayhow, 1 Cha. Ca. 34 ; Story v. Lord Windsor, 2 
 Atk. 630; Attorney-General v. Gower, 2 Eq. Ca. Abr. 686, pi. 11. 
 
 (a) Vide supra, vol. ii. p. 274. 
 
 (6) Kelsall v. Bennett, 1 Atk. 622 ; which has overruled Bramton v. 
 Barker, 2 Vern. 159, cited. 
 
 (464) See 4 Des. 287. 
 
 (465) See 4 Des. 287. 
 
 (466) See 4 Des. 287. 
 
 (467) See 4 Des. 287. Murray v. Finster, 2 Johns. Ch. Rep. 155, 
 157. 4 Des. 287. 
 
 (*307)
 
 OF PLEADING A PLRCHASE. 
 
 359 
 
 need not be denied, because notice before is notice at the 
 time of the purchase, and the party will, in such case, on 
 its being made appear that he had notice before, be liable 
 to be convicted of perjury (c). 
 
 The notice must be positively and not evasively deni- 
 ed(d), and must be denied, whether it be or be not charg- 
 ed by the bill(e)(468). If particular instances of no- 
 tice, or circumstances of fraud, are charged, the facts 
 from which they are inferred must be denied as special- 
 ly and particularly as charged(y)(469). 
 
 But he need only by this plea deny notice generally(^), 
 unless where facts are specially charged in the bill as evi- 
 dence of notice(/i). 
 
 Notice must also be denied by answer, for that is mat- 
 ter of fraud, and cannot be covered with the plea, be- 
 cause the plaintiff must have an opportunity to except to 
 its sufficiency if he think fit(r)(470) ; but it must also 
 be denied by the plea, because otherwise there is not 
 a complete plea in court on which the plaintiff may take 
 issue(^')(471). 
 
 (c) Jones I". Thomas, 3 P. Wms. 243. 
 
 (d) Cason v. Round, Prec. Cha. 226 ; and see 2 Eq. Ca. Abr. 682, 
 (D.) n. (b). 
 
 (e) Aston v. Curzon, and Weston r. Berkely, 3 P. Wms. 244, n. 
 (/) ; and see the 6th lesol. in Brace r. Duke of Marlborough, 2 P. 
 Wms. 491. 
 
 (f) Meder v. Bii t, Gilb. Eq. Rep. 185 ; Radford v. Wilson, 3 Atk. 
 815; and see Jerrard v. Saunders, 2 Ves. jun. 187; 4 Bro. C. C. 
 322 ; 6 Dow. 230. 
 
 («•) Ovey r. Leighton, 2 Sim. & Stu. 234. 
 
 (/i) Pennington v. Beechey, 2 Sim. & Stu. 282 ; Thring r. Kdgar, 
 2 Sim. & Stu. 274. 
 
 (i) Anon. 2 Cha. Ca. 161 ; Price r. Price, 1 Vern. 185. 
 
 <h) Harris i'. Ingledew, 3 P. Wms. 91 ; Meads v. Duchess of King- 
 ston, Mitf. on Plead. 2d edit. 216, n. 
 
 (468; See Snelgrove v. Snelgrove, 4 Des. 287. 
 
 (469) See 4 Des. 288. 
 
 (470) See 4 Des. 288. 
 
 (471) See 4. Des. 288.
 
 360 
 
 OF PLEADING A PURCHASE. 
 
 Althougli a purchaser omit to deny notice by answer, 
 he will be allowed to put in the point of notice by way 
 of answer(/), and the omission will not invalidate his 
 (*)plea, if it is denied by that(m). If notice is omitted 
 to be denied by the plea, and the plaintiff reply to it, the 
 defendant has then only to prove his purchase, and it is 
 not material if the. plaintitf do prove notice, as he has 
 waved setting down the plea for argument, in which case 
 it would have been overruled(?i). If, however, a bill is 
 exhibited against a j)urchaser, and he plead his purchase, 
 and the bill is thereupon dismissed, a new bill will lie 
 charging notice, if the point of notice was not charged in 
 the former bill, or examined to ; and the former proceed- 
 ings cannot be pleaded in bar(o). But if notice is 
 neither alleged by the bill nor proved, and the defendant 
 by his answer deny notice, an inquiry will not be granted 
 for the purpose of affecting him with noiice(j9). 
 
 A plea of a purchase for valuable consideration with- 
 out notice, will not be allowed where the purchaser might 
 by due diligence have ascertained the real state of the 
 th\e(q). 
 
 If a purchaser's plea of valuable consideration without 
 notice be falsified by a verdict at law, and thereupon 
 a decree is made against the purchaser, and he then 
 carries an appeal to the House of Lords, it will be dis- 
 missed, and the decree affirmed without further in- 
 quiry(r)(472). 
 
 {I) Anon. 2 Ch. Ca. 161. 
 
 (m) Coke v. Wilcocks, Mose. 73. 
 
 (n) Harris v. Ingledew, 3 P. Wms. 91 ; Eyre v. Dolphin, 2 Ball & 
 Beat. 302. 
 
 (o) Williams v. Williams, 1 Cha. Ca. 262. 
 
 {p) Hardy tJ. Reeves, 5 Ves. jun. 426. 
 
 (q) Jackson v. Rowc, 2 Sim. & Stu. 472. See and consider the 
 case. It has been heard upon appeal before the Lord Chancellor. 
 
 (r) Lewes v. Fielding, Colles's P. C. 361. 
 
 (472) See Snelgrove v. Snelgrove, 4 Des. 288. 
 (*308)
 
 OF PLEADING A PURCHASE. Qgi 
 
 The title of a purchaser for valuable consideration 
 without notice is a shield to defend the possession of the 
 (*)purchaser(5), not a sword to attack the possession of 
 others(i)(473). It is clear that it will protect his posses- 
 sion from an equitable title, although even that has been 
 sometimes questioned(M) ; whether it will avail against a 
 legal title is perhaps doubtful(474). 
 
 In Burlase v. Cooke(a), Lord Nottingham held the 
 plea to be good against a legal estate ; but in the subse- 
 quent case of Rogers v. Seale(?/), he is reported to have 
 been of a different opinion, and to have decreed accord- 
 ingly. But unfortunately both these cases appear to be 
 very ill reported (475). 
 
 In Parker v. Blythmore(2), the Master of the Rolls 
 thought the plea good against a legal estate(476). 
 
 But in Williams v. Lambe(a), upon a bill filed by 
 a dowress against a bona fide purchaser, without notice of 
 the marriage, Lord Thurlow overruled the plea. He said 
 that the only question was, whether a plea of purchase 
 without notice would lie against a bill to set out dower ; 
 that he thought where the party is pursuing a legal title, 
 as dower is, the plea did not apply, it being only a bar 
 to an equitable, not to a legal claim(477). 
 
 In a later case(6), Lord Rosslyn considered it impos- 
 
 (s) Patterson v. Slaughter, Ambl. 292. 
 
 [t) See 3 Ves. jun. 225. 
 
 (h) See 1 Ball & Beatty, 171. 
 
 (x) 2 Freem. 24. 
 
 (y) 2 Freem. 84. 
 
 {z) 2 Eq. Ga. Abr. 79, pi. 1. 
 
 (a) 3 Bro. C. C. 264. 
 
 (6) Jerrard v. Saunders, 2 Ves. jun. 454. 
 
 (473) See 4 Des. 288. 
 
 (474) See 4 Des. 288. 
 
 (475) See 4 Des. 288. 
 
 (476) See 4 Des. 288. 
 
 (477) See Snelgrove v. Sncls;rov€, 4 Des. 288.
 
 3g2 ^^ PLEADING A PURCHASE. 
 
 sible that Rogers v. Seale could be the decision of Lord 
 Nottingham, and decreed that the plea could stand 
 against a legal as well as an equitable title. 
 
 Lord Rossljn did not, however, mention the case of 
 Williams v. Lambe, which is against the doctrine he laid 
 down ; nor, indeed, did he notice the case of Parker v. 
 Blythmore, which is in favor of it. It is much to be la- 
 mented that all the authorities were not considered. 
 
 (*)To argue from principle, it seems clear that the plea 
 is a protection against a legal as well as an equitable 
 claim ; and as the authorities in favor of that doctrine cer- 
 tainly preponderate, we may, perhaps, venture to assert 
 that it will protect against both. But in a very late case, 
 the Master of the Rolls followed the case of Williams v. 
 Lambe, and was of opinion that the defence was of no 
 avail against a legal title(c)(478). 
 
 (c) Collins V. Archer, 1 Russ. & Myl. 284. 
 
 (478) In Snelgrove v. Snelgrove, 4 Des. 289, wherein most of the 
 learning contained in this chapter is examined, DESAUSSURE, Chan- 
 cellor, in allusion to the text, says, " I am not entirely satisfied, that this 
 is a correct conclusion. The inclination of my mind is the other way. 
 It should be remembered, that the plea protects, by the court refusing 
 to aid the complainant in setting up a title. Now, when the title at- 
 tempted to be set up, is an equitable one, it seems very reasonable (hat 
 the court should forbear to give its assistance in setting up such equita- 
 ble title against another title set up by a fair purchaser. But when the 
 complainant comes with a legal title, I do not perceive how he caii be 
 refused the aid of the court." 
 
 (*310)
 
 APPENDIX. 
 
 No. I. 
 
 JVotice by the owner and his Agent, of the Agenfs intention to 
 
 hid{a). 
 
 Sir, 
 
 I, THE undersigned A, of owner of the estates 
 
 intended to be sold by you at by public auction, on 
 
 the day of next, do hereby give you notice, that 
 
 I have appointed the undersigned jB., of, &c. to bid on my behalf, 
 or formy use, at the same sale. And I, the above-named J?., do 
 hereby give you notice, that I have accordingly agreed to bid at guch 
 sale, for the use of the said A. 
 
 To Mr. Auctioneer. 
 
 No. II. 
 
 JVotice by the Agent of his intention to bid{b). 
 
 Sir, 
 
 I, the undersigned A. of, &c. agent of B. of, &c. owner of the 
 estates intended to be sold by you at by public auction, 
 
 on the day of next, do hereby give you notice, 
 
 that I intend to bid at the same sale, on the behalf, or for the use of the 
 above-named B. 
 
 To Mr. Auctioneer. 
 
 (a) Vide supra, vol. i. p. 18. 
 
 (b) Vide tupra, vol. i. p. 19. 
 
 (*311)
 
 364 APPENDIX. 
 
 No. III. 
 
 JVolice by the Agent, and the Person appointed bij him, of such Per- 
 son'' s intention to bid{c). 
 
 Sir, 
 
 I, the undersigned A., of, &:c. agent of B, of, &c. owner of the 
 estates intended to be sold by you at by public auction, 
 
 (*)on the day of next, do hereby "give you notice, 
 
 that I have appointed the undersigned C. of, &c. to bid at the same 
 sale, on the behalf, or for the use of the above-named B. And I, the 
 said C, do hereby give you notice, that 1 have accordingly agreed to 
 bid at such sale, for the use of the said B. 
 
 To Mr. Auctioneer. 
 
 No. IV. 
 Conditions of Sale {d). 
 
 I. That the highest bidder shall be the buyer : and if any dispute 
 arise as to the last or best bidder, the lot in dispute shall be put up at a 
 former bidding. 
 
 II. That no person shall advance less at any bidding than ... /.(I) ; 
 or retract his or her bidding(e). 
 
 III. That every purchaser shall immediately pay down a deposit, in 
 the proportion of . • . . /. for every 100/. of his or her purchase-money, 
 into the hands of the auctioneer (II) ; and sign an agreement for pay- 
 ment of the remainder to the proprietor, on the day of next, 
 at at which time and place the purchases are to be completed, 
 and the respective purchasers are then to have the actual possession of 
 their respective lots ; all outgoings to that time being cleared by the 
 vendor. 
 
 IV. That within from the day of the sale, the vendor shall, 
 at his own expense, prepare and deliver an abstract of his title to each 
 
 (c) Vide supra, vol. i. p. 19. 
 
 (d) Vide svpra, vol. i. p. 30. 
 
 (e) Payne v. Cave, 6 Term Rep. 148. Vide supra, vol, i. p. 43. This has now become an 
 usual condition. 
 
 (I) Or thus, " than such sum shall be named by the auctioneer at the time." 
 
 (II) This is scarcely ever done in the country ; but the deposits are paid to the agent of 
 the vendor. 
 
 (*312)
 
 APPENDIX. 365 
 
 purchaser, or his or her solicitor; and shall deduce a good title (I) to 
 the lots sold. 
 
 V. That upon payment of the remainder of the purchase-money at 
 the time above mentioned, the vendoc shall convey the lots to the respec- 
 tive purchasers : each purchaser, at his or her own expense, to prepare 
 the conveyance to him or her ; and to (*)teuder or leave the same at 
 
 for execution hy the vendor (/). 
 
 VI. That the auction-duty of 7d. in the pound shall, immediately af- 
 ter the sale, be paid to the auctioneer by the vendor and purchaser, in 
 equal moieties (g-) (II). 
 
 VII. That if any of the purchasers shall neglect or fail to comply with 
 the above conditions, his or her deposit-money shall be actually forfeit- 
 ed to the vendor, who shall be at full liberty to re-sell the lot or lots 
 bought by him or her, either by public auction or private contract ; and 
 the deticiency (if any) occasioned by such second sale, together with all 
 expenses attending the same, shall immediately after the same sale, be 
 made good to the vendor by the defaulter at this present sale : and in 
 case of the nonpayment of the same, the whole thereof shall be recover- 
 able by the vendor, as and for liquidated damages(/t), and it shall not be 
 necessary to previously tender a conveyance to the purchaser. 
 
 Lastly, That if any mistake be made in the description of the premi- 
 ses, or any other error whatever shall appear in the particulars of the 
 estate, such mistake or error shall not annul the sale, but a compen- 
 sation or equivalent shall be given or taken, as the case may require(j). 
 Such compensation or equivalent to be settled by two referees, or their 
 umpire ; each party within ten days after the discovery of the error, and 
 notice thereof given to the other party, to appoint one referee by writing ; 
 and in case either party shall neglect or refuse to nominate a referee 
 within the time appointed, the referee of the other party alone may make 
 a final decision. If two referees are appointed, they are to nominate 
 an umpire before they enter upon business, and the decision of such 
 referees or umpire (as the case may be) shall be final. 
 
 Condition to be inserted where the Title-deeds cannot be delivered 
 That as the title-deed:^ which concern this estate relate to other estates 
 
 (/) Ftde»upra, vol. i. p. 39. (g) Vide supra, \o\.\. \>. ■ii. 
 
 {h) Vide supra, \o\. 1. p. 40. («) Vide suprii, vol. i. p. 41. 
 
 (k) Vide supra, vol. i. p. 38. 
 
 (I) Where the estate is leasehold, and the vendor cannot produce the lessor's title, this 
 condition should go on thus : " to the lease granted of the premises ; but the purchaser shall 
 not be entitled to require, or call for the title of the lessor." Vide supra, vol. i. |>. 38. 
 
 (II) This condition should be omitted where the estate is sold by assignees of a bankrupt. 
 Vide supra, vol. i. p. 13, 14. 
 
 (*313)
 
 366 APPENDIX. 
 
 of greater value, the vendor shall retain the same in his custody, and en- 
 ter into the usual covenants (to be prepared {*)hy his solicitor, and at his 
 expense) for the production of them to the respective purchasers : but 
 all attested copies which may be required of such deeds shall be had and 
 made at the expense of the person requiring the same. « 
 
 fVliere an Estate is intended to be sold in Tjots, and the Title-deeds 
 are to be delivered up, the follotoing Condition may ht inserted : 
 
 That as the aforesaid lots are holden under the same title, the pur- 
 chaser of the greater part in value of the said estate shall have the cus- 
 tody of the title-deeds, upon his entering into the usual covenants for the 
 production thereof to the purchaser or purchasers of the remaining or 
 other lots: If the largest portion in value of the estate shall remain 
 unsold, the seller shall be entitled to retain the deeds upon entering into 
 such covenants as aforesaid ; all such covenants to be prepared by and 
 at the expense of the person or persons requiring the same ; who may 
 have attested copies of such deeds at his, her or their own expense. 
 
 Or this : 
 
 That the title-deeds shall be retained by the vendor, until all the es- 
 tates now offered for sale shall be sold, when they shall be delivered 
 over to the largest purchaser, upon his entering into the usual covenants 
 for the production thereof to the other purchasers ; such covenants to 
 be prepared by and at the expense of the person or persons requiring 
 the same. Whilst the deeds remain in the seller's hands, he shall pro- 
 duce them to the several purchasers when required, and every purchaser 
 may at any time have attested copies of the deeds at his own expense. 
 
 Where the Property is considerable, it may be advisable to make a 
 stipulation as to the expense of the attested copies, according to 
 the value of the lots. As, for instance : 
 
 That all attested copies of the title-deeds shall be made and delivered 
 at the expense of the person requiring the same, unless his or her pur- 
 chase-money exceeds . . . /. but does not amount to - . . /. ; in which 
 case the vendor shall furnish the attested copies of all such deeds and 
 writings as shall be deemed necessary, according to professional usage, 
 at the joint expense of him and the purchaser ; and if the purchase-mo- 
 ney exceeds .... Z. the vendor shall furnish the same at his own ex- 
 pense. 
 
 (*314)
 
 APPENDIX. 367 
 
 (*)No. V. 
 
 Agreements to be signed by the Vendor and Purchaser after Sales by 
 
 Auctionil). 
 
 It seems aduisable to have tii}o sets of Conditions, at the end of one 
 of ichich may be printed an Jigreement for the JJiictioneer, or Jigent of 
 the Vendor, to sign ; and at the end of the other may be printed an 
 Agreement for the Purchaser to sign. 
 
 The Agreement to be signed by the Auctioneer, or Agent of the Vendor, 
 
 may be thus . 
 
 I do hereby acknowledge, that has been this day declared the 
 
 purchaser of lot of the estates mentioned in the above-written 
 
 particulars, at the sum of . . . /. ; and that he has paid into my hands 
 ... Z. as a deposit, and in part payment of the said purchase-money ; 
 and I do hereby agree, that the vendor shall, in all respects, fulfil on his 
 part the above-written conditions of sale. As witness my hand, this 
 day of 
 Purchase-money - - - - £ . 
 Deposit-money - - - - 
 
 Remainder unpaid - - £ . 
 Witness, 
 
 The Piirchuser may sign the folloiving Agreement : 
 
 I do hereby acknowledge, that I have this day purchased by public 
 auction, lot of the estates mentioned in the above-written particu- 
 
 lars, for the sum of ..../. ; and have paid into the hands of 
 the sum of . . . . /. as a deposit and in part payment of the said pur- 
 chase-money ; and I do hereby agree to pay the remaining sum of 
 ..../. unto at on or before the day of and 
 
 in all other respects, on my part, to fulfil the above-written conditions 
 of sale. As \vitness my hand, this day of 
 
 Purchase-money - - - ' £> . 
 
 Deposit-money - - - . 
 
 Reniainder unpaid - - £,. 
 Witness. 
 
 (/) Ft<<€ «i/pr« vol. I. p. 52. 
 
 (*315)
 
 368 APPENDIX. 
 
 (*)No. \l. 
 
 Agreement for Sale of an Estate by Private Contract{m) . 
 
 Articles of agreement made and entered into this day of 
 
 between A., of, &c. for himself, his heirs, executors and 
 
 administrators, of the one part, and B., of, &c. for himself, his 
 
 heirs, executors and administrators, of the other part, as follow : 
 
 viz. 
 
 ■ The said Jl. doth hereby agree with the said B. to sell to him the mes- 
 suages, &c. (parcels) with their appurtenances, at or for the price or 
 sum of ..../. ; and that he the said A. w.ill within one month from 
 the date hereof, at his own expense, make and deliver unto the said B. 
 or his solicitor, an abstract of the title of him the said Jl. to the said 
 messuages and premises ; and will also, at his own expense, deduce a 
 clear title thereto. And also that the said A., or his heirs, and all other 
 necessary parties, shall and will, on or before the day of 
 
 next, on receiving of and from the said B., his executors or administra- 
 tors, the said sum of ..../. at the costs and charges of him the said 
 B; his heirs, executors, administrators or assigns, execute a proper con- 
 veyance, for conveying and assuring the fee-simple and inheritance of 
 and in all the said messuages and premises, with their appurtenances, 
 unto the said B.., his heirs or assigns, free from all incumbrances. 
 
 And the said B. hereby agrees with the said A., that he the said B., 
 his heirs, executors, administrators or assigns, shall and will, on the 
 execution of such conveyance as aforesaid, pay the sum of . . . /. unto 
 the said A., his executors or administrators. 
 
 And it is hereby further agreed by and between the said A. and B. as 
 follows : viz. 
 
 That the conveyance shall be prepared by and at the expense of the 
 said B,f and that the same shall be settled and approved of on the parts 
 of the said A. and B. by their respective counsel ; and that each of them, 
 the said Ji. and B., shall pay the fees of his own counsel. 
 
 And. that all rates, taxes and outgoings, payable for or in respect of 
 the premises to the day of shall be paid anJ discharged by 
 
 the said A., his executors or administrators. 
 
 And lastly, that if the said A. shall not deliver an abstract of his 
 title to the said B., or his solicitor, before the expiration of (*)one ca- 
 lendar month from the date hereof, or shall not deduce a good and 
 marketable title to the said messuages and premises, before the said 
 
 (m) Vide supra, vol. i. p. 63. 
 (*316) (*317)
 
 APPENDIX. 
 
 369 
 
 day of then and in either of the mid cases, immediately 
 
 after the expiration of the said one calendar month, or the said 
 day of (as the case may be), this present agreement shall be 
 
 utterly void to all intents and purposes whatsoever, and the jurisdiction 
 of equity wholly barred ; it being the true intent and meaning of the 
 parties hereto, that in the event aforesaid execution of this agreement 
 shall not be enforced by any court of equity, notwithstanding, any rule 
 (if such there be) that time cannot be made the essence of a contract, 
 or any other rule or maxim whatsoever(?i). In witness, &c. 
 
 A provision may also be inserted in agreements, making time the es- 
 sence of the contract, in case the purchase-money is not paid at the day 
 appointed ; but clauses making agreements void if a title is not made, 
 or the purchase-money paid by a slated time, should never be inserted un- 
 less it be the express intention of the parties. Where time is not deemed 
 material, clauses to the following effect should be inserted : 
 
 That the said B. and his heirs shall \l■^ve, receive and take the rents 
 and profits of the said messuages and premises, from the day 
 
 of next, for his and their proper use. 
 
 And that if the said conveyance shall not be executed by the neces- 
 sary parties, and the said purchase-money paid on or before the said 
 day of then and in such case the said E., his heirs, ex- 
 
 ecutors or administrators, shall l>om the same day of 
 
 pay interest for the said purchase-money unto the said Jl., his executors 
 or administrators, after the rate of ])er cent, per ami. 
 
 No. VII. 
 
 Bratt V. Ellis[o), C B. Mich, and Hil. Terms, 45 Geo. HI. 
 
 John Goodwin being indebted to Ellis, the defendant, an auctioneer, 
 deposited the title-deeds of some housc3 with him, as a security ; and 
 gave him a written authority to sell them by auction, at any time before 
 Midsummer 1803. They were (*)accordingly put up at Garraway's ; 
 and not fetching the sum expected, they were bought in by Goodwin. 
 Ellis not being paid, put up the houses again in September 1804, undeV 
 the usual conditions. The plaintiff was declared the highest bidder at 
 315/. ; paid a deposit of 75/. and signed an agreement to complete the 
 contract. The defendant delivered possession to the plaintifT, who ex- 
 pended about 10/. in repairs ; and the defendant sent the deeds to the 
 
 (h) Fide »upro, ch. 8, sect. 2, vol. I. p. 441. (o) ViHe $iipra,vo\. i. p. 45. 
 
 vou. II. 47 (*31S)
 
 370 . APPENDIX. 
 
 plaintiff's attorney, who approved of the title, and prepared a convey- 
 ance ; and the defendant undertook to procure Goodwin to attend and 
 execute the deed. Goodwin, however, upon being applied to, refused 
 to complete the contract, which was made without his authority. The 
 plaintiff brought the present actien to recover the depqsit-money and 
 interest, and the expense of perusing the abstract, preparing the convey- 
 ance, &c. ; and the damages the plaintiff had sustained by losing such 
 a good bargain. The plaintiff gave 315/. for the houses, and a survey- 
 or, examined on his behalf, proved that they were worth 761/. The de- 
 fendant suffered judgment to go by default. Upon the execution of the 
 writ of inquiry of damages, the defendant's counsel admitted, that he 
 was liable to repay the deposit, with interest, and fair expenses incurred 
 in investigating the title, &c. But as it appeared by the declaration 
 that the defendant was only an auctioneer, and Goodwin was the owner, 
 he insisted that the defendant was not answerable for the difference of 
 value. The sheriff, in his charge to the jury (which was specially sum- 
 moned), said, it was admitted on all hands, that the deposit and interest, 
 and expenses, must be paid to the plaintiff. AVith respect to the de- 
 mand for the loss of the bargain, he thought that the demand was re- 
 coverable ; for the defendant had admitted that he had sold the property 
 without authority ; but the amount of the damages was in their discretion. 
 They would consider whether it would have sold for 751/. If they be- 
 lieve the surveyor, it would, be quite competent to give the whole, or 
 what they pleased. The jury returned a verdict for 350/. being up- 
 wards of 250/. as damages for loss of the bargain. The Court of 
 Common Pleas, however, granted a rule to show cause why the writ of 
 inquiry should not be set aside, and the defendant let in to plead in the 
 action, upon paying into Couit the deposit-money, and interest, and 
 on payment by the defendant to the plaintiff of his costs occasioned 
 thereby, together with his costs of the present application. Upon 
 showing cause, the Court made the rule absolute ; on(*)payment to the 
 plaintiff of the deposit, wi(h interest, the costs of investigating the title, 
 and the costs of the action, as behveen atlorney and client. 
 
 I 
 
 No. vm. 
 
 Jones v. Dyke and o1hers{p). Hereford Svmmer ,3ssizcs, cor. 
 Macclonald, C. JB. 
 
 The circumstances of the case were shortly these. Some estates in 
 
 ( p) Vide supra, vol. i. p. 45. 
 (*319)
 
 APPENDIX. 371 
 
 Wales having been advertised for sale, the plaintiff came to town, and 
 after some treaty with the defendants, who were the auctioneers em- 
 ployed, he agreed to purchase the estate in question, at 975/. ; and it 
 was agreed that he was to pay the deposit in nine days, and to give his 
 note for it at that date, which he accordingly did. Tuchin, one of the 
 defendants, by the desire of his partner Dyke, gave the plaintiff a re- 
 ceipt for the deposit, and signed a printed particular, which together 
 amounted to an agreement in writing. 
 
 In a few hours after this transaction, Dyke and Tuchin called on a 
 friend of the plaintiff's to acquaint him that (hey had just received a let- 
 ter from Wales, stating that the estates were sold for more money, and 
 requesting the particular and receipt to be returned ; and the plaintiff 
 refusing to relinquish the agreement, and having immediately returned 
 to Wales, they by the next post sent to him his note of hand, and a par- 
 ticular signed by him, both of which he instantly returned. 
 
 The 100/. was tendered in payment of the note, and refused : the 
 residue of the purchase-money was prepared in time, and deposited at 
 a banker's. 
 
 The plaintiff filed a bill in equity against the owner of the estate, 
 and his trustees for sale, who denied the authority of the defendants to 
 sell, in consequence of which the plaintiff was advised to dismiss his 
 bill.. 
 
 The plaintiff then brought an action against the defendants, in which 
 he proved by two witnesses that the estate purchased was worth 2,117/. 
 10s. so that he lost upwards of 1,140/. by breach of the agreement. 
 
 It appearing that the defendants had no authority to sell, the plaintiff 
 had a verdict by consent, for 261/. the Judge thinking (*)the items 
 of which that sum was composed reasonable, but the plaintiff did not 
 obtain any damages for the loss of his bargain. 
 
 The sum of 261/. was thus made up : M . s. d. 
 
 Costs of the plaintiff's solicitor ----r--- 47 194 
 
 Costs of the trustees in equity, about ------30 - - 
 
 Interest of 975/. from April 1804 to April 1807 - - - 146 6 - 
 Journies to London and Llandilo, about 20 days, ^ 
 
 } 
 
 horse-hire and travelling expenses - - 
 Journey to London - 16 16- 
 
 £. 260 19 4 
 
 (*320)
 
 372 AITE.NDIX. 
 
 No. IX. 
 
 JVyatl V. Alleniq), Reg. Llg. B. 1771, fol. 576. 
 
 The bill was filed by ^\ yatt, charging that he, as agent for the de- 
 fendant Allan, purchased an estate by auction, but that the defendant 
 having denied the commission, he himself was forced to complete the 
 purchase. The purchase-money was 435/. The defendant by his an- 
 swer denied that he employed the plaintiff to purchase the estate. 
 
 The Chancellor directed an issue to try the fact, and that if the jury 
 found that an authority was given by Allan, they should indorse on the 
 postea to what amount such authority extended. The jury found that 
 Allan did give an authority to the extent of 400/. Upon the cause 
 coming back on the equity reserved, the defendant was ordered to pay 
 the plaintiff the 400/. and ihe plaintiff was to assign the estate, and the 
 defendant was to pay the costs both at law and in equity. 
 
 No. X. 
 
 Sir John JVlorshcad and others v. Frederick{r) and others. Ck. 
 20th February 1 806. 
 
 Certain estates of the late Sir John Frederick were devised to 
 trustees upon trust, by mortgage or sale thereof, to raise 34,000/. 
 for the benefit of his two daughters, Lady Morshead and Miss 
 Thistlethwayte. Part of his estate consisted of a house in the 
 (*) occupation of Smith, Payne and Smith, the bankers. In 1751, a 
 ground lease of this house was granted for sixty-one years, at 56/. a 
 year. The representative of the lessee assigned the lease to Smith and 
 Company, subject not only to the original ground rent of 56/. a year, 
 but also to an additional rent of 210/. A bill was filed for carrying the 
 trusts of Sir John Frederick's will into execution. With the approba- 
 tion of all parties, the house in question was offered for sale, and rep- 
 resented as subject to the ground lease at 56/. a year. Smith and Com- 
 pany employed an auctioneer to enter into a treaty with the plaintiffs' 
 solicitors for the purchase of the house, and he was informed by them 
 that it was subject to the lease at 56/. a year. The auctioneer valued 
 the house as being subject to the lease, and to no other rent, charge 
 
 {q) FiV^ wpra, vol. i. p. 46 (r) Vide !>upra.yo\. i. p.72. 
 
 (*321)
 
 APPENDIX. 373 
 
 or incumbrance, at 6,150/. and verbally agreed with the plaintifTs' soli- 
 citors for the purchase by Smith and Company of the house at that 
 sum : the contract was referred to the Master, who approved of it, and 
 by an order in the cause, Smith and Company were directed to pay the 
 pui chase-money into Court, to the credit of the cause, and it was or- 
 dered that they should be let into receipt of the rents from the last 
 quarter day. The title was approved of en behalf of the purchasers, 
 and the money was paid into the Bank according to the order. A few 
 months afterwards, and before the conveyance was executed, applica- 
 tion was made to Smith and Company for payment of the rent of 210/. 
 to the person entitled to it. Upon this, Smith and Company insisted 
 upon an abatement in the purchase-money, which the plaintiffs would 
 not accede to. A motion was then made to the Court by Smith and 
 Company, that the money paid into the Bank might be repaid to them, 
 and the contract for the purchase of the house rescinded. In support 
 of this motion, the auctioneer swore, that he valued the house as sub- 
 ject to the 56/. a year only, and that he was ignorant of its being sub- 
 ject to any other rent or outgoing. The solicitor for Smith and Com- 
 pany swore, that no notice was taken in the abstract of the lease, by 
 which the 210/. a year was reserved. One of the bankers swore, that 
 when the money was paid into the Bank, and when the valuation was 
 made, he and his partners believed that the auctioneer had been made 
 fully acquainted with all the charges, whether consisting of rents or 
 otherwise, which in anywise affected the house ; and that his not being 
 made acquainted with the rent of 210/. was occasioned by some un- 
 designed omission or mistake. 
 
 {*)In opposition to these affidavits, the solicitor of the plaintifis 
 swore, that he had been in receipt of the rent of 66/. a year nearly 
 thirty years, which had been paid by Smith and Company since 1797, 
 and that he had never heard that the house was ever granted by any 
 under lease, or was made subject to any other rent than the rent of 56/. 
 until long after the sale to the bankers. And that upon inquiry he 
 found, //la/ //le ren/ o/ 210/. had been paid bij the bankers themselves 
 ever since they purchased the lease. 
 
 The motion came on before Lord Eldon, who expressed an opinion 
 in favor of the purchaser's right to rescind the contract, but did not 
 decide the point. It afterwards came before liOrd Erskine, who held 
 this to be a proper case for the interference of equity, on the ground of 
 mistake, and accordingly granted the motion. The circumstance of 
 both rents being payable by the purchasers, his Lordship thought im- 
 material, ^as it appeared that they had not communicated that circum- 
 stance to their broker, and the magnitude of their concerns might easily 
 account for the omission. It could not be imagined, that any man 
 
 (*322)
 
 374 APPENDIX. 
 
 would willingly conceal such a fact from a broker employed by him to 
 value any property he wished to purchase : and it was equally absurd 
 to suppose, that if a broker, in valuing any property, was ignorant of 
 the existence of an additional rent of 200/. no relief lay against such a 
 mistake in a court of equity. 
 
 No. XI. 
 
 A Bill for extending the Provisions of the Statute of Frauds[s). 
 
 Whereas by an act passed in the twenty-ninth year of his Majesty 
 Charles the Second, entitled " An Act for the Prevention of Frauds 
 and Perjuries," it is enacted, that no action shall be brought whereby 
 to charge any person upon any contract or sale of lands, tenements or 
 hereditaments, or any interest in or concerning them, unless the agree- 
 ment upon which such action shall be brought, or some memorandum 
 or note thereof, shall be in writing, and signed by the party to be charg- 
 ed therewith, or some other person by him lawfully authorized : And 
 whereas a similar (*)enactment is contained in an act passed in Ireland, 
 in the seventh year of the reign of King William the Third : And 
 whereas it has been held that an agreement signed by one party, or his 
 agent, is binding upon him, and that it is not necessary for a party or 
 his agent tb subscribe his name to the agreement for the purpose of 
 authenticating it, where the name is introduced, in the agreement itself; 
 and in some cases concluded contracts have been allowed to be col- 
 lected and made out from receipts for purchase-money, letters, cor- 
 respondence or proposals, or the like, not assuming the ordinary shape 
 of an agreement or a memorandum, or a note thereof: And whereas 
 courts of equity have, on the ground of part performance, held certain 
 cases of parol agreements not to fall within the mischief of the enact- 
 ments aforesaid : And whereas it is expedient to alter and amend the 
 law as it is at present administered under the said statutes in the respects 
 aforesaid ; Be it therefore enacted, that no action or suit shall be 
 brought or maintained whereby 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 the same is brought, 
 or some memorandum or note thereof, shall be in writing, and signed 
 by the parties to be charged therewith, or some other persons by them 
 lawfully authorized at the foot (hereof, in the usual manner of subscrib- 
 ing regular agreements. 
 
 And be it further enacted, that letters or correspondence passing 
 
 (5) Vide supra, vul. I, i>. 86. 
 (*323)
 
 APPENDIX. 375 
 
 between the parties or their authorized agents, or an offer in writing' by 
 the one party, and acceptance in writing by the other, shall not be deem- 
 ed in any case to amount to an agreement upon which an action or suit 
 may be brought or maintained under the provisions of the said recited 
 acts or of this act. 
 
 And be it further enacted, that neither delivery of possession of the 
 estate which is the subject of the contract, nor payment of the pur- 
 chase-money or rent agreed to be paid for the estate, or expenditure of 
 money by any of the parties on the estate, or any other act whatsoever, 
 shall be deemed to amount to a part performance of any agreement 
 made upon any contract or sale of lands, tenements or hereditaments, 
 or any interest in or concerning them, so as to enable a court of equity 
 to decree a specific performance of any such agreement, where the same 
 is not signed in the same manner required by this act. 
 
 Provided always, and be it enacted, that where any agreement shall 
 be bond Jide made upon any contract or sale of lands, (*, tenements or 
 hereditaments, or any interest in or concerning the same, and the same 
 ghall not be signed in the manner by this act required, to enable an ac. 
 tion or suit to be brought or maintained thereupon, but where it is upon 
 a sale, the seller, upon the faith and footing of such contract, shall have 
 let the purchaser into possession of the property sold, or the purchaser, 
 upon the faith and footing of such contract, shall have paid to the seller 
 the purchase-money, or any part thereof, or having been let into posses- 
 sion of the property, shall, with the acquiescence of the seller, have 
 made any substantial repairs or lasting improvements upon such pro- 
 perty, and where in any such case either of the parties to such contract 
 shall refuse to perforin the same on his part, the other of the said parties 
 shall or may maintain an action against the party so refusing for the re- 
 covery of the damage sustained by him by the payment of any such pur- 
 chase-money, or by the expenditure in such repairs or improvements, or 
 by the loss of the rents and profits or possession of the property sold, 
 as the case may be ; and in every such action brought by a seller, the 
 defendant, the purchaser shall be at liberty to set-off' against the plain- 
 tift''s demand the amount of any purchase-money paid to the plaintiff" 
 by the defendant, with interest thereon, at the rate of four pounds per 
 centum per annum, and the amount, of any monies actually expended 
 by the defendant in substantial repairs or lasting improvements on the 
 estate of the plaintiff, with his acquiescence ; and in every such action 
 brought by a purchaser, the defendant, the seller shall be at liberty to 
 set off against the plaintiff' 's demand the amount of any rents and pro- 
 fits of the property sold which shall have been received by the purcha- 
 ser, or an occupation-rent for the property sold, where it shall Jiave 
 been in the plaintiff's own possession, as shall be just ; and where 
 
 (*324)
 
 376 APPENDIX. 
 
 any such agreement as last aforesairl is upon a letting, and the in- 
 tended tenant having been let into possession by the intended landlord 
 (the other contracting party), shall, upon the faith and footing of such 
 contract, with the acquiescence of the landlord, have made any substan- 
 tial repairs or lasting improvements on such property, and the landlord 
 shall afterwards refuse to perform the agreement, in any such case the 
 tenant may maintain an action against the party so refusing for recovery of 
 the damages sustained by the expenditure in such repairs or improve- 
 ments ; and in such action, the defendant shall be allowed such set-off as 
 shall be just ; and the amount of the damages recovered in any such action 
 by (*)a purchaser or tenant shall be and be deemed an equitable lien on 
 the estate contracted to be sold or let, as and from the day on which 
 such contract was entered into, and shall carry interest from the time 
 the verdict is given ; and in every such case as aforesaid, where a lien 
 is to be established on the estate contracted to be sold or let, or where 
 an account is to be taken between the parties, either party may file a 
 bill in equity against the other for the purpose of enforcing the rights 
 hereby given. 
 
 And whereas by the said Act of the twenty-ninth year of his late 
 Majesty King Charles the Second, it is enacted, that no leases, estates 
 or interests, either of freehold, of terms of years, or any uncertain in- 
 terest, not being copyhold or customary interest, of, in, to or out of any 
 messuages, manors, lands, tenements or hereditaments, shall at any 
 time after the four-and-twentieth day of June therein mentioned, be as- 
 signed, granted or surrendered, unless it be by deed or note in writing, 
 signed by the parly so assigning, granting or surrendering the same, or 
 their agents thereunto lawfully authorized by writing or by act and ope- 
 ration of law : And whereas it is expedient that assignments and sur- 
 renders of leases, estates or interests, of, in, to or out of any messua- 
 ges, manors, lands, tenements or hereditaments which do not exceed the 
 term of three years from the making thereof, may hereafter be made 
 without any deed or note in writing ; Be it therefore enacted, that from 
 and after the all leases of, in, to or out of any manors, 
 
 messuages, lands, tenements or hereditaments, not exceeding the term 
 of three years from the making thereof, whereupon the rent reserved to 
 the landlord during such term amounted at the time of the creation 
 thereof to three-fourth parts at the least of the full improved value of 
 the subject demised, may be assigned or surrendered without any deed 
 or note in writing. 
 
 And whereas by the said recited acts it is further enacted, that all de- 
 vises of lands, devisable either by the statute of wills or by custom, 
 shall be in writing signed by the party devising, or by some other in his 
 presence and by his express directions, and shall be attested and sub- 
 
 (*326)
 
 APPENDIX. 377 
 
 scribed in the presence of the devisor by three or four credible witness- 
 es, or else they shall be void : And whereas it is expedient to alter and 
 amend the law as it is ad.ninistered under the said statutes, in the re- 
 spect last aforesaid ; Be it therefore further enacted, that where any 
 such devise as aforesaid in writing, shall, without fraud, bo attested and 
 subscribed by three or four credible witnesses, as part of the transaction 
 which they are called upon to witness, and before (*)they depart from 
 the house or place wherein or whereat the will was signed by the testa- 
 tor, the same shall be deemed an effectual attestation within the said 
 statutes, although not subscribed in the actual presence of the devisor, 
 or where he might see the witnesses subscribe the same. 
 
 And be it further enacted, that this act shall operate on all such 
 agreements and deposits as aforesaid only as shall be made after the 
 passing of this act, and upon all such devises as aforesaid only where 
 the devisors making the same shall die after the passing of this act. 
 
 No. XII. 
 Ex parte Tomkhis(t), L. I. Hall, '2'dd Jiugiisl 181G. 
 
 A mortgagee obtained an order for sale of the estates under a bank- 
 ruptcy. The assignees, without leave of the Court, appointed several 
 puffers to bid, and two lots were knocked down to then). Lord Eldon 
 determined that they must be held to their bargain, although they swore 
 that they believed there was no real bidder. And in answer to an ap- 
 plication, that if there should prove to be a real bidder, the assignees 
 might only be compelled to pay the price which he bid, the Lord Chan- 
 cellor, said, that although it was a hard case, they must pay the sum 
 at which the lots were knocked down. The order was for a sale, and 
 they were not authorized to buy the estate in ; their biddings might 
 have prevented the estate" from selling to a bond fide bidder, and it 
 was impossible for the Court to say that (he estate would not have 
 fetched more than the last real bidding, if the putfer appointed by the 
 assignees had not afterwards bid. A majority of the creditors in such 
 a case could not bind the rest, and if assignees choose to act, they 
 ought to procure i\\\ indemnity from the creditors. 
 
 (t) Vide supra, vol. 1, p. 73. 
 
 VOL. 11. 48 (*326)
 
 378 APPENDIX. 
 
 No. XIII. 
 
 Observations on the Jinnuily Act{u). 
 
 To this passage a note was added in a former edition, in which it was 
 contended that the 17 Geo. III. c. 26, commonly called (*)the Annuity 
 Act, extended to money considerations only, notwithstanding the case 
 of Crosly V. Arkwright, 2 Term Rep. 603. The authorities relied on, 
 were Crespigny v. Wittenoom, 4 Term Rep. 790 ; Hutton v. Lewis, 5 
 Term Rep. 639 ; Ex parte Fallon, 5 Term Rep. 283 ; and Horn v. 
 Horn, 7 East, 529 ; to which might be added Doe v. Philips, 1 Taunt. 
 356. But the point is not now of much importance. The decisions 
 under the Annuity Act had gone far beyond the letter, and in many 
 cases even beyond the spirit of the law-: and perhaps there was not any 
 act in the statute-book on which so many cases had been decided within 
 any thing like the same space of time. The expense of the memorial 
 was very considerable, and the effect of the decisions, by increasing the 
 risk of the transaction, drove fair purchasers out of the market, and 
 lowered the price of life annuities ; first, because the number of buyers 
 was small ; and secondly, because the purchasers required to be paid 
 not only the common rate of annuity interest, but also the value of the 
 risk of the transaction being void under the act. The Atinuity Act, 
 after having been thirty-five years in operation, was repealed by the 53 
 Geo. III. c. 141, except as to annuities granted before the passing of 
 the repealing statute ; and other provisions were substituted in lieu 
 thereof. 
 
 The first section repeals the old act. 
 
 The second section requires, that within thirty (in the old act it was 
 twenty) days after the execution of every deed, bond, instrument, or 
 other assurance, whereby any annuity or rent-charge shall, from and 
 after the passing of the act, be granted for one or more life or lives, or 
 for any term of years, or greater estate determinable on one or more 
 life or lives, a memorial of the date of every such deed, bond, instru- 
 ment or other assurance, of the names of all the parties, and of all the 
 witnesses thereto, and of the person or persons for whose life or lives 
 such annuity or rent-charge shall be granted, and of the person or per- 
 sons by whom the same is to be beneficially received, the pecuniary 
 consideration or considerations for granting the same, and the aimual 
 sum or sums to be paid, .shall be enrolled in the High Court of Chan- 
 cery, in the form or to the effect following, with such alterations therein 
 as the nature and circumstances of any particular case may reasonably 
 require : otherwise every such deed, bond, instrument or other assur- 
 ance, shall be null and void to all intents and purposes. 
 
 (u) Vide supra, vol. I, p. 281. 
 (*327)
 
 APPENDIX. 
 
 379 
 
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 (*328)
 
 380 AITENDIX. 
 
 (^'■) The "great object of this provision was to give publicity to (he 
 transaction, and at the same time (o avoid unnecessary expense to the 
 grantor ; and by the simplicity of the memorial to avoid, if possible, fu- 
 ture litigation. As the act passed the House of Commons, the memo- 
 rial was required to contain only four things, viz. 1. the date of the 
 grant ; 2. tlie name of the grantor ; 3. the name of the person by 
 whom the annuity was to be beneficially received ; and 4. the amount 
 of the annuity. The statement of the consideration was omitted, lest 
 it should open a door to the mischiefs which the act was intended to 
 guard against. The schedule stands as it was amended in the House 
 of Lords. The nature of the instrument is required to be stated, to 
 which there can be no particular objection, although it is not mentioned 
 in the body of the act. The next amendment substitutes the names of 
 the parties for the name of tlie grantor. This seems open to objection, 
 for in many cases it may not appear who is the grantor : for example, 
 if Richard is possessed of a lease in trust for Edward, and Edward 
 sells an annuity to Frederick, the deed would, in the ordinary course, 
 be made between Richard of the first part, Edward of the second part, 
 and Frederick of the third part, and thus the memorial would stand ; 
 from which it would be inferred that Richard and not Edward was the 
 grantor. The provision in the act, as it passed the House of Commons, 
 was not open to this objection. The third column requires the names 
 of the parties simply to be stated, and does not seem to require their 
 additions to be inserted, but in the next column where the names of the 
 witnesses are required, a blank is left in the example, manifestly fur the 
 addition, " E. F. of ." In complying with both these 
 
 requisitions, the additions of the persons should be inserted, and this is 
 expressly required in the latter instance. This fourth coliiiTiii was an 
 amendment in the Lords. In thf lale case of Darwin v. Lincoln, 5 
 Barn. & Aid. 444, it was held that a witness described in the memorial 
 as the clerk of the attorney was not well described, because his place of 
 abode was not stated. This led to the passing of another Act of 
 Parliament, which will presently be noticed. 
 
 The memorial must contain the Christian name of the subscribing wit- 
 ness to the securities. The initial of the Christian name is not suffi- 
 cient. Cheek v. JefTries, 2 Barn. & Cress. 1, and this has been follow- 
 ed in a late decision upon an annuity granted by Lord Strathmore. It 
 would be prudent to state (*)which of the several executions the wit- 
 nesses attested. It is sufficient to state, that the annuity was granted 
 for the lives of Ji. B. &c. without stating more than their names, or 
 adding that the annuity was granted for their joint lives, or the life of 
 the survivor, or fur a term of years determinable on those lives. Bar- 
 ber r. Gamson, 4 Barn. & Aid. 281. Another amendment requires 
 
 (*329) (*330}
 
 APPENDIX. 3S1 
 
 the statement of the consideration and how paid. The latter words it 
 was at tirst thojight might be understood, in ivhat manner, which would 
 lead to all the inconveniences intended to be remedied, but it now seems 
 agreed, thnt the words are not open to that construction : the meaning 
 i.s, that the amount of the consideration shall be stated, and whether paid 
 in money, note.^, bills, ^:c. This is clear from the explanation in the 
 act ; it need not therefore be stated by or to whom the money was paid, 
 and there is now no exception to the rule that a payment by an agent is a 
 payment by the principal. It is observable that the amendment requires 
 the pecuniary consideration or considerations to be stated. Perhaps it 
 escaped observation, that the act extends as well to annuities granted 
 for money's worth, as for money ; but as the act stands, it is clear that 
 none but money considerations need be stated in the memorial. It has 
 been decided in James v. James, 2 Brod. & Bing. 702, (and see Blake 
 V. Attersoll, 2 Barn. & Cress. 875 ; Tetley v. Tetley, 4 Bing. 214,) 
 that an annuity granted in consideration of a conveyance of a life in- 
 terest in land does not require enrolment. The Court said that the 
 words in the tenth section, declaring that the act shall not extend " to 
 any voluntary annuity granted without regard to pecuniary considera- 
 tion or money's worth," import that money's worth may, in certain 
 cases, be "a pecuniary consideration" within the meaning of the act ; 
 as where the grantee pays for the annuity in part, or in whole, by goods 
 or merchandize, with a nominal or perhaps real value imposed upon 
 them, to be converted into money by the grantor, and where the object 
 of the grantor was to raise money, and such appears to be the real na- 
 ture of the transaction, however it may be disguised. But considerinor 
 the second and tenth sections together, and the intent of the Legisla- 
 ture as it is to be collected therefrom, the Court was of opinion that 
 the act does not extend to cases of fair and bond fide sale of landed 
 property, whether freehold for life or leasehold for term of years, where 
 the consideration in part or in whole may be an annuity to be paid to 
 the vendor. In sucb cases, the consideration for granting the annuity, 
 being (*)an estate in land bona fide sold and conveyed, did not appear 
 to the Court to be a pecuniary consideration or money's worth within 
 the meaning of the statute. 
 
 A description in the memorial of an underlease of leaseholds as an as- 
 signment, is a sufficient compliance with the act, which is satisfied by a 
 description of the instrument in popular language, although that be not 
 according to its strictly legal effect. Butler v. Capel, 2 Barn. & Cress. 
 251. 
 
 The form of the memorial is the only part of the act in which any 
 substantial amendment was made in the House of Lords. 
 
 It has been decided, that the memorial need not state that the annuity 
 
 (*331)
 
 382 APPENDIX. 
 
 is redeemable That clause does not come within the schedule, and as 
 Abbott, C. J. remarked, if any thing not specified in the schedule be 
 necessary, the schedule itself would be worse than useless. The name 
 of the party in whose favor a warrant of attorney is given need not be 
 stated in the memorial ; Yems v. Smith, 3 Barn. & Aid. 206 ; nor is it 
 necessary to state for what penal sum it authorizes a confession of judg- 
 ment. Barber v. Gamson, 4 Barn. & Aid. 281. 
 
 The third section provides, that if any such annuity shall be granted 
 by, or to or for the benefit of any company exceeding in number ten per- 
 sons, which company shall be formed for the purpose of granting or pur- 
 chasing annuities, it shall be sutficientin any such memorial to describe 
 such company by the usual firm or name of trade. 
 
 The fourth section enacts, that in every deed, bond, instrument or 
 other assurance, whereby any annuity or rent charge shall, from and 
 after passing of this act, be granted or attempted to be granted, for one 
 or more life or lives, or for any term of years, or greater estate determi- 
 nable on one or more life or lives, where the person or persons to whom 
 such annuity shall be granted or secured to be paid, shall not be entitled 
 thereto beneficially, the name or names of the person or persons who is 
 or are intented to take the annuity beneficially, shall be described in 
 such or the like manner as is hereinbefore required in the enrolment ; 
 otherwise every such deed, instrument or other assurance shall be null 
 and void. 
 
 The object of this provision was to prevent one person from secretly 
 buying an annuity in the name of another. It was thought right that the 
 grantor should know with whom he was dealing : in all other respects 
 an annuity deed is now placed on the same footing with other deeds. 
 This is a great point (*)gained. If the consideration is money, it must 
 be correctly stated under the last stamp act ; if it is stated as a money 
 consideration, and any part is paid in goods, the annuity, as we shall 
 presently see, may be set aside. 
 
 The fifth section enables the grantor to obtain a copy of the deeds 
 by a Judge's summons. 
 
 The sixth section enacts, that if any part of the consideration for the 
 purchase of any such annuity or rent-charge shall be returned to the 
 person advancing the same, or in case such consideration, or any part 
 of il, shall be paid in notes, if any of the notes, with the privity and 
 consent of the person advancing the same, shall not be paid when due, 
 or shall be cancelled or destroyed without being first paid ; or if such 
 consideration is expressed to be paid in money, but the same or any part 
 of it shall be paid in goods ; or if the consideration or any part of it 
 shall be retained, on pretence of answering the fiiture payments of the 
 annuity or rent-charge, or any other pretence ; in all and every the 
 
 (*332)
 
 APPENDIX. 383 
 
 aforesaid cases it shall be lawful for the person by whom the annuity or 
 rent-charge is made payable, or loliosepropertij is liable to be charged or 
 affected thereby, to apply to the Court in which any action shall be 
 brought for payment of the annuity or rent-charge, or judgment entered, 
 by motion, to stay proceedings on the action or judgment, and if it 
 shall appear to the Court that such practices as aforesaid, or any of 
 them, have been used, it shall and may be lawful for the Court to order 
 every deed, bond, instrument or other assurance, whereby the annuity or 
 rent-charge is secured, to be cancelled, and the judgment, if any has 
 been entered, to be vacated. See Barber v. Gamson, 4 Barn. & Aid. 
 281. • 
 
 This is siaiilar to a provision in the old act, with the addition of the 
 words in italics, and the power is enlarged to cancel every security for 
 the annuity. 
 
 The seventh section provides, that a book shall be kept for the enrol- 
 ment of the memorials, 20s. to be paid for the entry of the memorial. Is. 
 for every certificate of entry and copy, and Is. for every search. 
 
 The eighth section renders void contracts with infants, and the ninth 
 punishes brokers taking beyond 10s. per cent for brokerage. These 
 provisions are copied from the old act. 
 
 The tenth and last section enacts, that the act shall not extend to 
 iicotland or Ireland, nor to any annuity or rent-charge given by will or 
 by marriage settlement, or for the advancement (*)ofachild, nor to any 
 annuity or rent-charge secured upon freeholds or copyhold or customary 
 lands, in Great Britain or Ireland, or in any of His JMaj est y^s posses 
 sions beyond the seas, of equal or greater annual value than the said an- 
 nuity, ovir and above any other annuity, and the interest of any princi- 
 pal &vm charged or secured thereon, of which the grantee had notice at 
 the time of the grant, whereof the grantor is seised in fee simple or fee 
 tail in possession, or the fee simple whereof in possession, the grantor is 
 enabled to charge at the time of the grant, or secured by the actual 
 transfer of stock in any of the public funds, the dividends whereof are 
 of equal or greater annual value than the said annuity ; nor to any vo- 
 luntary annuity or rent-charge granted without regard to pecuniary 
 consideration or moncifs worth ;^ nor to any annuity or rent-charge grant- 
 ed by any body corporate, or under any authority or trust created by 
 act of parliament. 
 
 This is copied from the old act, with the additions in italics ; the 
 additions require no explanation, and, I believe, meet all the questions 
 which arose on the provision in the repealed act. The provision in the 
 old act, which excepted out of its provisions annuities not exceeding 
 10/. was not inserted in the new one. The practice with professed mo- 
 ney lenders was to split the consideration into several parts, and make 
 
 (*333)
 
 3S4 APPENDIX. 
 
 the man wanting the money grant 10/. annuities to difleient persons, to 
 the amount agreed upon. By this plan they increased the expenses of 
 the grantor to a considerable amount, and at the same time avoided giv- 
 ing publicity to the transaction. 
 
 In considering the operation of the new act, it will be necessary for 
 the reader to keep in view the circumstance, that it extends to annui- 
 ties, although not exceeding 10/., and also embraces annuities granted 
 for money's worth. As to the latter, see James v. James, before cited. 
 In consequence of the decision before referred to in Darwin v. Lin- 
 coln, the act of the 3 Geo. IV. c. 92, was passed. By that act, after 
 recitinf the second section of the act of the 53d of Geo. 3, and tnat the 
 form or effect to which such enactment refers is expressed in several 
 columns, at the head of one of which are the words " Nam.es of witness- 
 es," and underneath, as applicable to indentures of lease and release, the 
 letters and words, " E. F. of " " G. H. of ," and as 
 
 applicable to a bond and warrant of attorney to confess judgment, the 
 letters " -E. F." " G. H." without the word "of;" and reciting, that 
 the words of enactment referring to such form express only that a 
 (*)memorial of the names of all the witnesses to every such deed, 
 bond, instrument or other assurance as therein mentioned, should be 
 enrolled as directed by the said Act, without providing that any descrip- 
 tion of the witnesses should be given in such memorial, except as such 
 form is thereby referred to ; and such form does not provide that any 
 description should be added to such names except by the addition of 
 the word, " of" to the letters " E. F." and " G. H." as aforesaid, as 
 applicable to indentures of lease and release ; and reciting, that in con- 
 sequence of such indistinct enactment it might be doubtful whether it 
 was the intention of the Legislature to require any, or if any, what de- 
 scription to be added to the names of witnesses in the memorial of any 
 deed, instrument or assurance, to be enrolled as aforesaid ; and reciting 
 that a very great number of memorials of grants of annuities had since 
 the passing of the said act been enrolled, in which the names of the wit- 
 nesses to the deeds, instruments or assurances specified in such memori- 
 als, had been inserted without the addition of the place of abode of such 
 witnesses, and it has been inferred from the use of the word " of" after 
 such letters " E. F." and after such letters " G. H." as aforesaid, that 
 it was necessary to describe each of such witnesses in such memorial 
 as of some place, and in consequence thereof some grants of annuities 
 made since the passing of the said act had been, in proceedings in sum- 
 mary applications to courts of justice which could not be reviewed in 
 any superior court, deemed null and void, on the ground that no de- 
 scription of the place of abode of the witnesses to some or one of the 
 deeds, instruments or assurances by which such grants of annuities had 
 (*334)
 
 APPENDrx. 385 
 
 been made, had been inserted in tlie memorials or memorial thereof en- 
 rolled as directed by the said act ; and also reciting, that doubts had 
 been entertained whether the construction so put on the said act is the 
 true construction thereof, more especially as the same is so far penal as 
 renders deeds, instruments and assurances, of which memorials had not 
 been enrolled in pursuance of the said act, null and void ; and the provi- 
 sions in the said act are not so clear and explicit as the same ought to 
 have been under such circumstances, and the parties claiming under grants 
 of annuities might have been thereby misled and induced to conceive 
 that it was not necessary, under the provisions of the said act, to insert 
 in the memorial of any deed, instrument or assurance, to be enrolled 
 as aforesaid, the place or places of abode of the witness or witnesses to 
 such deed, instrument or assurance, or any more than the name or names 
 of such witness or witnesses, there (*) being no words in the said act 
 expressly requiring any more to be so inserted, nor any words from 
 which it could be inferred that any more was required to be inserted, 
 except the word " of" after the letters " E. F." and " G. H." respec- 
 tively, with reference to one species of assurance, inserted in the form 
 of memorial before mentioned, and that it was expedient to remove all 
 doubts touching the construction of the said act with respect to so much 
 of the memorials required by the said act to be enrolled as relates to 
 any description of the witness or witnesses to any deed, instrument or 
 assurance ; it is enacted, that by the said act of the 63d year of the 
 reign of his said Majesty Geo. 3, no further or other description of 
 the subscribing witness or witnesses to any deed, bond, instrument oi 
 other assurance, whereby any annuity or rent-charge is or may be 
 granted, is required in the memorial thereof, besides the names of ail 
 such witnesses ; and so the said act shall be deemed, construed and 
 taken. .See St. John v. Champneys, 1 Bingham, 77. And by the 
 same act(.r), after reciting that doubts had also arisen whether under 
 the said act of the 53d year of the reign of his said Majesty Geo. 3, 
 the omission to enrol a memorial of any of the assurances for securing 
 any annuity or rent-charge did not vitiate the whole transaction, not- 
 withstanding the enrolment of a memorial of another deed, bond, instru- 
 ment or other assurance granting the same(I) ; and that it was also ex- 
 pedient to remove such doubts, it was enacted and declared that every 
 deed, bond, instrument or other assurance granting any annuity or rent- 
 charge, and of which a memorial shall have been or shall be duly en- 
 rolled pursuant to the said act, notwithstanding the omission to enrol 
 
 (x) Sect. 2. 
 
 (I) This is singular ; for the former act expressly authorizes every secnrily to be can- 
 celled. 
 
 vol.. It. 49 (-335)
 
 386 APPENDIX. 
 
 any other de. -, ^ou- , '.nstrument or assurance for securing such annuity 
 or rent-charge, shall be valid and effectual according to the intent, mean- 
 in"- and true effect thereof, notwithstanding a memorial of any other 
 deed, bond, instrument or assurance for securing the same annuity, 
 shall not have been duly enrolled pursuant to the said act. 
 
 And by the same act it is provided (y) and enacted, that nothing in 
 the said act contained shall extend to give any other force or validity to 
 any deed, bond, instrument or other assurance of which a memorial 
 shall have been duly enrolled as aforesaid, than such deed, bond, in- 
 strument or other assurance would have had if any deed, bond, instru- 
 ment or other assurance for securing (*)the same annuity, of which a 
 memorial shall not have been duly enrolled, had never been executed. 
 
 And by the said act it is also provided (z) and further enacted, that 
 the said act shall not extend or be construed to extend to revive or 
 give effect to any deed, bond, instrument or other assurance, whereby 
 any annuity or rent-charge hath been already granted, so far as the same 
 hath been adjudged, declared, treated or deemed void by any judgment, 
 decree, action, suit or proceeding at law or in equity, or by any act or 
 deeds of the parties thereto, or by any other legal or equitable means 
 whatsoever ; nor shall the said act affect or prejudice any suit or pro- 
 ceeding at law or in equity commenced on or before the 31st day of 
 May 1822, and now depending, upon the ground of an alleged defect 
 in the memorial thereof in not describing the witnesses thereto other- 
 wise than by his, her or their name or names, for avoiding any such 
 deed, bond, instrument or other assurance. 
 
 The current of judgment is now altered, and a fair and liberal con- 
 struction is put upon the acts in favor of bond fide transactions. See 
 Faircloth v. Gurney, 9 Bing. 622. 
 
 No. XIV. 
 
 Coiissmaker V. Ssxvell{a)y Ch. Ath May, 1791. 
 
 In this cause it was referred to Master Greaves to see if a good thle 
 could be made to the estate in question. An abstract was delivered. 
 It appeared by it, that William Perkins, an ancestor of the vendor, had 
 made a settlement of his estate in the year 1705 ; but neither the set- 
 tlement itself, nor any copy or abstract of it, could be produced, and 
 the contents of it were totall3punknown. In 1751 a fine was levied by 
 Mr. Perkins and his eldest son ; and in 1763 a recovery was suffered, 
 in which Mr. Perkins and his second son (the eldest son being then 
 
 (y) Sect. 3. (z) Sect. 4. (a) Vide supra, \o\. I, p. 356. 
 
 (*336)
 
 APPENDIX. 387 
 
 dead) joined in making a tenant to the praecipe, and the second sou 
 was vouched. The estate was mortgaged in 1759, and the title was 
 then approved of by Mr. Serjeant Hill ; and from the wording of his 
 opinion, it was collected, that the settlement of 1705 was then before 
 him. Supposing the limitations in the settlement of 1705 to have beea 
 to the sons of that marriage successively in tail male, those estates-tail» 
 and the remainders expectant upon them (if any) were completely 
 barred by tlie tine and recovery. 
 
 (*)The counsel for the purchaser objected to the title, on the ground 
 that the deed of 1705 was not produced, and that it might contain limi- 
 tations which were not barred by the fine and recovery ; and might have 
 created charges to which the estate still continued subject. 
 
 These objections were laid before the Master ; and the vendor not 
 acquiescing in them, they were argued before him. The counsel for 
 the purchaser avowed his client to be an unwilling purchaser, and stated 
 his objections with great perspicuity and ability, and required of the 
 Master, that if he did not think the title such as a court of equity was 
 warranted to force on an unwilling purchaser, he should not report in fa- 
 vor of it. The original opinion of Mr. Sergeant Hill could not be pro- 
 duced, and the serjeant had not that recollection of what was before him 
 at the time he gave the opinion, as enabled him to say that he had seen 
 the settlement. Much stress was not, therefore, laid upon the opinion. 
 On the 21st February 1791, the Master made his report, in which he 
 stated that he had seen the opinions given by Mr. Sergeant Hill and by 
 Mr. Shadwell, the purchaser's counsel ; and that, considering the circum- 
 stances of the case, and the length of the possession since the recovery, 
 he was of opinion a good title might be made. To this report the purcha- 
 ser excepted, and the exceptions were argued before the Chancellor on 
 the 4th May 1791, by Sir John Scott, with great earnestness ; but the 
 Chancellor over-ruled them, and the report was confirmed. 
 
 No. XV. 
 
 Clay V. Sharjoe, Ch. Mich. Term, 1802 (e). 
 
 By indenture, bearing date the 28th of November 1798, and made 
 between Thomas Wardell of the first part, George Taylor and Ann his 
 wife of the second part, E. Day of the third part, and William Sharpe 
 of the fourth part, certain leasehold estates were assigned unto the said 
 Edward Day, his executors, administrators and assigns, subject to a pro- 
 viso or condition for redemption, upon WardcU's transfering into the name 
 
 (e) Fide swpro, vol. 1, p. 358. (■*337\
 
 388 APPENDIX. 
 
 of Day, his executors, adiiiinistiators or assigns, 2,0C0/. 3 per cent, con- 
 solidated Bank annuities. And it was by the indenture agreed, that if de- 
 fault should be made contrary to the proviso or condition (*)of redemp- 
 tion ,it should be lawful for the said defendant, Edward Bay, to sell the 
 said leasehold pren)ises for the best price that could be reasonably gotten 
 for the same ; and to reimburse himself the costs, charges and expenses 
 relatin" to such sale ; and afterwards to re-purchase the said 2,000/. 3 
 per cent, consolidated Bank annuities, or such part thereof as should re- 
 main due or untransferred ; and the overplus of the monies to arise by 
 the said sale, if any, to pay to the said Thomas Wardell, his executors, 
 administrators or assigns. And the said Thomas Wardell did, by the 
 said indenture, covenant, that in case of any sale pursuant to the power 
 aforesaid, he the said Thomas Wardell, his executors or administrators, 
 would join and concur therein, and execute any assignment to the pur- 
 chaser or purchasers of the said premises, with the usual covenants for 
 the title thereto ; or do any reasonable act confirming such sale. But 
 that, nevertheless, it should not be necessary that the joining of the said 
 Thomas Wardell in any such sale or conveyance, should be essential to 
 perfect the title, the same being intended only for satisfaction of such 
 purchaser or purchasers. 
 
 Default was made in transferring the stock, and Day, who was a 
 trustee, by Sharpe's directions, put up the premises for sale by public 
 auction, at which sale the plaintiff became the purchaser. 
 
 The plaintif}"'s attorney prepared a draft of the assignment, in which 
 he made Day the mortgagee, Sharpe the cestui que trust, and Wardell 
 the mortgagor, parties ; but Wardell the mortgagor having refused to 
 execute the assignment, the plaintiff filed his bill against Day, Sharpe 
 and Wardell, for a specific performance of the contract for sale. 
 
 To this bill the defendants put in their answers, and Wardell stated 
 that he resisted the sale, as having been made without his consent, and 
 at an undervalue ; but before any proceedings were had, Wardell be- 
 came a bankrupt, and in consequence thereof a supplemental bill was 
 filed against his assignees. 
 
 The cause coming on to be heard the 15th of November 1802, the 
 Chancellor decreed that the plaintiff's bills should be dismissed as 
 against the defendants, Thomas Wardell, and his assignees, ivitli costs, 
 to be taxed by the Master. And it was also decreed, that the agree- 
 ment entered into by the plaintiff with the defendants William Sharpe 
 and Edward Day, for the purchase of the premises in question, should 
 be carried into execution. And that upon the plaintiff paying unto the 
 said defendants (*)William Sharpe and Edward Day, the residue of the 
 purchase-money for the premises, the said defendants should execute 
 an assignment of the lease of the said premises to the plaintiff, or as he 
 
 {*33S) (*339;
 
 APPENDIX. 389 
 
 should appoint. And that the defendants Sharpe and Day should pay 
 to the plaintiff' his costs of the said suit, so far as the bills were not dis- 
 missed, as thereinbefore directed, to be taxed by the Master, in case 
 the parties differed about the same. 
 
 No. XVI. 
 Belch V. Hai-vey (f), Cli. Mich. 9 Geo. II. 
 
 This cause was very long and intricate ; but the chief question was, 
 what length of time would bar an equity of redemption ? And as to 
 that point, Talbot, Lord Chancellor, said that courts of equity had of 
 late years generally adhered to the time laid down in the statute of limi- 
 tations with regard to ejectments, and that it was certainly right to have 
 fixed rules in equity as well as law, that people might know how far 
 their property extended, and where it was bound ; and that he did not 
 know any more reasonable rule in general than what the Legislature 
 had prescribed for such possessory actions. The person claiming the 
 equity of redemption offered some proof out of the Ecclesiastical 
 Court to show she was an infant at the time of her marriage, which 
 was not allowed to be read, and other proof that the marriage continued 
 for many years, both which, taken together, would excuse the non-re- 
 demption for a long time ; but my Lord Chancellor gave her liberty to 
 file an interrogatory to prove her infancy at the time of her marriage, if 
 she could ; and said, he would then consider whether equity had also 
 followed the statute of limitations in allowing only ten years for infants 
 and /ernes coreW to commence their suits after the imperfections removed, 
 for he did not remember the Court had pursued that part of the statute ; 
 and Mr. Verney, king's counsel, cited the case of Brewer and Baker- 
 straiv, which he believed to be about five years ago, where the father 
 mortgaged some chambers in Gray's Inn, and died, leaving his son an 
 infant, during which time many years were saved ; and yet nineteen 
 years after he was come of age he was permitted to redeem. But to 
 this Mr. Fazakerly answered, there was as much reason for observing it 
 in the one (*)case as the other ; and that, in the present case, thirteen 
 years had passed between the death of the husband and the bill filed for 
 a redemption. This was on a supposition she could prove her infancy 
 at the time of her marriage ; for if she was then of full ago, my Lord 
 Chancellor said, the time would attach and run out against her, notwith- 
 standing the subsequent marriage, and then she would be put ofl* from 
 
 (/) Vide supra, vol. 1. p. 395. 
 
 (*340)
 
 390 APPENDIX. 
 
 all possibility of relief, for there would be near forty years possession 
 against her unaccounted for. By statute 21 Jac. 1. c. 16, persons hav- 
 ing any right or title of entry must enter within twenty years after titles 
 accrued ; but the title of infants, /emes covert, &c. are saved, so as they 
 commence their suits within ten years after the imperfection removed? 
 
 This cause coming on again the same term, was ended by consent of 
 the parties : but Lord Chancellor Talbot spoke, however, in this case 
 to this effect : A peaceable and quiet possession for a long time weighs 
 greatly whh me in all cases. The foundation which the Court goes on 
 in cases of the like nature with the present, is not any presumption, 
 that after a long space of time the party has deserted his right ; but to 
 quiet and secure men's possession, which is very reasonable to be done 
 after twenty years time, without some very particular circumstances : 
 and for this cause a court of equity has generally acted in conformity 
 to the statute of limitations. Whether the present plaintiff was an in- 
 fant at the time of her marriage is to me very doubtful ; but taking it 
 she was then an infant, as the Court has not in general thought proper 
 to exceed twenty years, where there was no disability, in imitation of 
 the first clauses of the statute, so if I had been forced to have made a 
 decree in the present case, I should have been of opinion, that after the 
 disability removed, the time fixed for prosecuting in the proviso, which 
 is ten years, should also have been observed : for the proviso contain- 
 ing an exception of several cases out of the purview of the statute, if 
 the parties at law should avail themselves by the proviso, they must 
 take it under such restrictions as the Legislature hath annexed to it, 
 and that is, to sue within ten years after the impedinient ceases, ^^hy 
 should not the same rule govern in equity 1 I think there is great rea- 
 son that it should. The persons who are the subject of the proviso are 
 not disabled from suing, they are only excused from the necessity of 
 doing it during the continuance of a legal impediment ; therefore when 
 that difficulty is removed, and nobody can say (*)how long it may last, 
 the time allowed after such impediment removed for their further pro- 
 ceedings should be shortened. If they would excuse a neglect under 
 the first part of the proviso, should they not do it upon the terms such 
 excuse is given ? If I had given my opinion on this case, I should have 
 dismissed the bill. 
 
 (*341)
 
 APPENDIX. 391 
 
 No. XVII. 
 
 The King against John Smith, Esq. {a), Serjeants'' Inn Hall, JMarch 2, 
 1804. — The judgment of the Court, as delivered bij the Lord Chief 
 Baron. 
 
 This case of the King against Smith has occupied a great deal of the 
 attention of the Court, and that in a great degree owing to the prodi- 
 giously extensive consequences that it may have according as it is de- 
 cided in the one way or the other. We were therefore anxious to 
 search in order to find out what materials existed on the subject. After 
 all the pains we could take, we find them to be but few. We have 
 found no decision or authority similar in its terms to the present case ; 
 and the consequence of that is, where we can find principles laid 
 down, we must be governed by them in the absence of every direct 
 precedent on the subject. The magnitude of the question is very con- 
 siderable, because, on the one hand, from some instances of persons in 
 the service of government, and who have been intrusted with the pub- 
 lic money, I have experience enough to say, that the ingenuity exer- 
 cised by them may be such as not to make it very difficult to avail 
 themselves of their situation, and to render it no easy matter to make 
 them responsible ; on the other hand, it puts those who make purcha- 
 ses from persons in such a situation in a very unpleasant and precarious 
 situation, if the lands or goods so purchased may be extended. In this 
 view the question is of very great importance. The stake in the pre- 
 sent instance is next to nothing ; but the decision will be such as will 
 govern multitudes of cases that exist, and I believe many to exist of the 
 same sort. 
 
 This case arises on an extent that was issued against John Montre- 
 sor, Esq. late engineer in the service of government, in North America, 
 who owed vast sums to government. It was found that a great ba- 
 lance remained in his hands which he had not accounted for. The ex- 
 tent issued to the sheriff of Kent — that you diligently inquire what lands 
 and tenements, and of (*)what yearly value, the said John Montresor 
 had in your bailiwick on the 28th of September, in the eighteenth year 
 of our reign, when the said John Montresor first became indebted to us 
 in the said money, or at any time after ; in the cominon language. 
 
 An inquisition is returned of course, and in the inquisition it is stated 
 that the sheriff seised, &c. 
 
 Without going minutely into all the circumstances of this case, I be- 
 lieve I can state from memory, the leading facts upon which the ques- 
 tion depends. The property now in question, which consists of a small 
 
 (a) Vide supra, vol. 1. p. 511, 512. n. 514, 515. 
 
 (*342)
 
 392 APPENDIX. 
 
 messuage, and of some closes of land, originally belonged to a Mr. 
 Thompson. He being seised of this property demised it for the full 
 term of five hundred years ; the residue of this term was afterwards as- 
 signed to Ann Carter ; and last of all to John Smith, the present de- 
 fendant, in trust. And in ITQ.^, Mr. Smith purchased the reversion of 
 General Montresor, he being then seised of this property in his demesne 
 as of fee subject to this term of five hundred years ; and at the time of 
 the purchase Mr. Smith had no notice of any debt that had been incur- 
 red by John Montresor to the King. 
 
 This is the short state of the case, and I believe it is all that is neces- 
 sary : and the question then is, whether this outstanding term, which is 
 held in trust for Mr. Smith, does or does not protect him against the 
 claim of the Crown ? 
 
 The argument on behalf of Mr. Smith turned almost entirely on the 
 statute of uses in courts of equity, and besides that on the doctrine laid 
 down in Willoughby against Willoughby, which has never been shaken, 
 and which I hope never will. I take that now to be a leading decision, 
 never to be departed from in cases between subject and subject. 
 
 In answer to this case, made on the part of the defendant, irrefragable 
 as between subject and subject, in answer to this case, it was argued, 
 that the case of the Crown is essentially different from that of the sub- 
 ject ; and as far as we are furnished with light on this subject, it does 
 seem that the case of the Crown is essentially different. 
 
 In the first place, we find from a variety of authorities, that lands or 
 goods in the hands of debtors or accountants to the Crown, or in the 
 hands of those who are debtors to the debtors of the Crown, or which are 
 held in trust for them, or to their use, are most clearly the subject of an 
 extent. 
 
 Further, we find in PI. Com. 321, in the great case of the mines in 
 the hands of the Crown, there was a great number of (*)the King's debt- 
 ors brought into the Court of Exchequer, and there the Court held, 
 that lands which had belonged to the king's debtors, which had been 
 their property after they had so become debtors to the Crown, were 
 subject to the seizure of the king, into whatever hands they afterwards 
 came, whether by descent, purchase or otherwise. Among other cases 
 there cited, is that of Sir Wm. Seyntloo, who married the widow of Sir 
 Wm. Cavendish, who was treasurer of the household. Sir Wm. Seynt- 
 loo and his lady were returned terre-tenants, in right of the wife, of 
 certain land which was Sir William Cavendish's, and were called into 
 the Court of Exchequer, and made accountable for the arrears due to 
 the queen for Sir William's office. See Dyer, 224 and 226. It ap- 
 pears from the case, that after Sir William Cavendish became indebted 
 to the Crown, he purchased divers lands, and afterwards aliened them, 
 
 (*343)
 
 APPENDIX. 393 
 
 and took bick an estate therein lo himself and his wife, and afterwards 
 died without rendering any account, and the terre-tenants (as I have 
 ju>-t slated) of the land were charged to answer to Queen Elizabeth for 
 the arrears. Tlic^e lands might have been seized in the hands of Sir 
 William, and for the same reason they nvght be seized in the hands of 
 every one who came under him. 
 
 In 2 Roll. Ab. 156, the difibrence is stated between the effect of a 
 sale of land by a debtor to the Crown, when that sale took place before 
 he became a debtor, and a sale afterwards. In Dyer, 160, there is the 
 case of one Thomas Favell, who was a collector of the fifteenth and 
 tenth. He was indebted to the Crown, and being seised of certain 
 lands in fee simple, and having divers goods and chattels, die intromis- 
 sionis de coUectione el levatione, of the fifteenth and tenth aforesaid, 
 in extremity of illness aliened his tenements, goods and chattels, to 
 divers persons, and died without heir or executor, and process was is- 
 sued against the terre-tenants, and possessors of the goods and chattels, 
 to account for the collection aforesaid, and to answer and satisfy the 
 king thereof, &c. ; and this by the advice of the Chancellor of Eng- 
 land, and the Chief Justice of England, and the other Judges of either 
 bench. It is therefore clear, beyond all doubt, that the land itself may 
 be extended, into whatever hands that land mav have been aliened. 
 
 The next step which we find in a matter of this kind, is the doctrine 
 which is laid down in Sir Edward Coke's cnse, and which is mentioned 
 afterwards by Lord Hale in deciding another case, which I shall state 
 by and by. This case of Sir Edward (*)Coke being of great conse- 
 quence, the Master of the Court of AVards was assisted by four of the 
 Judges in the hearing and debating of it ; and after many arguments at 
 the bar, the said four Judges argued the same in court, viz. Dodderidge, 
 one of the Justices of the King's Bench ; Taufield, Lord Chief Barou 
 of the Exchequer; Hobart, Lord Chief Justice of the Court of Com- 
 mon Pleas ; and Ley, Lord Chief Justice of his Majesty's Court of 
 King's Bench- 
 First of all, I would draw your attention to this point, that this is an 
 infinhely stronger case than a*iy of those I have stated. In general, 
 the debtor to the Crown was at one time in possession of the laud him- 
 self; but in this case the king's account never had the land in him, the 
 land and debt never centered in the accountant to the Crown. 
 
 The case in effect was this : — Qtieen Elizabeth, by her letters patent, 
 did grant to Sir Christopher Hatton the ofncc of remembrancer and 
 collector of the first fruits, for his life, habendum to him after the death 
 or surrender of one Godfrey, who held the said office, then in posses- 
 sion : Sir Christopher Hatton being thus estatcd in the said office in 
 reversion, and being soisrd in tVe siinp'.c of divers manors, lands and 
 voj.. ,i. 50 (*344)
 
 394 APPENDIX. 
 
 tenements, did covenant to stand seised of his lands, &c. unto the 
 use of himself for life, and afterwards to the use of J. Hatton, his 
 son, in tail, and so to his other sons in tail, with remainder to the 
 rio^ht heirs of J. Hatton in fee, with proviso of revocation, at his plea- 
 sure, during his life. Godfrey, the officer in possession, died, and Sir 
 Christopher Hatton became officer, and was possessed of the office, and 
 afterwards he became indebted to the queen by reason of the said of- 
 fice ; and the question in this great cause was, whether the manors and 
 lands which were so conveyed and settled by Sir Christopher Hatton, 
 might be extended for the said debt due to the queen, by reason of the 
 proviso and revocation in the said conveyance of assurance of the said 
 manors and lands. The debt due to the queen was assigned over, and 
 the lands were extended, and the extent came to Sir Edward Coke; 
 and the heir of John Hatton sued in the Court of Wards to make void 
 the extent ; and it was agreed by the said four Justices, and so it was 
 afterwards decreed by Cranfield, Master of the Court of Wards, and 
 the whole Court, that the said manors and lands were liable to the said 
 extent 
 
 The Judges on that occasion cite a great number of cases, and some 
 of them go a great deal farther than 1 could have well (*) expected. 
 I shall just mention two or three of them, and it will be unnecessary to 
 state more. One of the cases there cited is, that of fValter de Cliirton^ 
 customer, who was indebted to the king 18,000/. for the customs, 
 and purchased lands with the king's money, and caused the feoflbr of the 
 lands to enfeoff certain of his friends, with an intent to defraud and de- 
 ceive the king ; and notwithstanding he himself took the profits of the 
 land to his own use, and those lands upon an inquisition were found, 
 and the value of them, and returned into the Exchequer, and there, by 
 judgment given by the Court, the lands were seized into the king's 
 hands, to remain there till he was satisfied the debt due to him ; and yet 
 the estate was never in him ; but because he had a power (to wit), by 
 subpoena in chancery, to compel his friends to settle the estate of the 
 lands upon him, therefore they were chargeable to the debt. See Dyer, 
 160. Walter de Chirton, in that case? never was seised of the said 
 lands ; Chirton had no remedy in law to have the lands, but his remedy 
 was only in a court of equity. 
 
 Another case is that of Philip Butler, w ho was sheriff of a county ; and 
 being indebted to the king, his feoffees were chargeable to the kii>g*s 
 debt by force of the word habuit, tor liabnil the lands in his power. In 
 Morgan's case, it was adjudged, that lands purchased in the names of 
 his friends to his use, were extendable for a debt due by him to the king. 
 There are several other cases cited in Sir Edw. Coke's case, and 
 which are also mentioned by Eord Hale in the case to which I have nl- 
 (*346}
 
 APPENDIX. 395 
 
 ready alluded. In a great many of these cases, the lands that were 
 seized for the payment of debts due to the Crown had been held in trust 
 for the king's debtors ; and it was no objection that the legal estate was 
 not in them. The ground of decision there was, that they, by an act of 
 their own, might at any time reduce it into possession ; they had it in 
 their power, viz. by a subpoena in chancery, &c. to compel their friends 
 to settle the estate of the lands upon them, snd therefore they were made 
 chargeable to the debt. 
 
 This being an outstanding term held in trust, it is analogous to all 
 the cases of uses and trusts. It was held there to be no objection, that 
 the legal estate was not in him, because it was in his power, by an act 
 of his own, to reduce it into possession. 
 
 But the case that comes nearest to the present is that of the Attorney- 
 general against Sir George Sands. 
 
 Upon an information exhibited here, and proceedings upon (*)it, a case 
 was made and stated, which was to this efi'ect, viz. Sir R. Freeman pur- 
 chased lands for the term of ninety-nine years, in his own name, and 
 afterwards purchased the inheritance of the same lands in trust, and then 
 by his will disposed of these lands to the sons of Sir George Sands, his 
 grand-children, born, or which should be born in his life-time, and direct- 
 ed conveyances to be made accordingly by his trustees, and died. At 
 that time Sir George Sands had two sons. Freeman and George, and 
 Freeman died ; and after the death of Sir Ralph, Sir George had anoth- 
 er son. Freeman, who lulled his brother George, for which he was attaint- 
 ed and executed, and no conveyances were made by the trustees, pur- 
 suant to Sir Ralph Freeman's will ; and the questions hereupon were 
 two : 1st, Whether, as this case is, the term for years was forfeited? 
 2dly, Whether or no the inheritance in trust was forfeited ? 
 
 The result in this case was^ that, inasmuch as there did not appear to 
 be a tenure, there could be no forfeiture for the felony ; because to a 
 forfeiture for felony, and to an escheat, a tenure is requisite, and there- 
 fore judgment was afterwards given quod dejhuhns eat hide sine die. 
 
 This case of Sir George Sands is reported in Hardres, 488, and also 
 in Freeman. I mention this case with greater confidence, because, 
 though Lord Mansfield, in the case of Burgess against Wheate, 1 
 Blackst. Rep. 123, observes, in delivering his judgment, that it was a 
 family business, and that the circumstances of Sir Geo. Sands' case 
 were compassionate ; yet I have the authority of Lord Keeper Henley 
 for saying it was decided on great principles of law. — Haying this au- 
 thority with me at this great distance of time, I conceive it gives it the 
 description I have now mentioned. 
 
 Hale, Chief Baron, says, there is no question concerning the forfeit- 
 
 (*346)
 
 396 APPENDIX. 
 
 ure of the fee simple in trust, for that must arise by escheat, and there 
 can be no escheat, but pro defcclu imentis. But here is a tenant in esse. 
 If the offence committed had been treason, then there might have 
 been a question, whether the inheritance in this case should be for- 
 feited, in respect that the rent and tenure have a continuance. 
 But vk'hether Sir George Sands shall hold the land discharged of 
 the lease, or that the king shall have the term, is the sole doubt. 
 The king does not gain an interest in a trust by forfeiture, as he does 
 in debt ; for there the interest of the bond passes to the king, and 
 process lies to execute it in the king's own name. And it is question- 
 able, (*)\vhether the king can have this in point of prerogative, in case 
 of felony ; though perhaps more might be said, if the case had been 
 treason. It is the intention of the party that creates and governs uses 
 and trusts ; and therefore a lease shall be deemed to attend the inheri- 
 tance, if it appears the parties intended it should do so, as here it does ; 
 and then it is no more than a shadow, an accessary to it, for otherwise 
 it would not be attendant on it. And then it cannot, in this case, go to 
 the felon, but to the admistrator of George, the son. And here they are 
 consolidated by the intention of the will, which directs that the trustees 
 shall make conveyances accordingly. Nor is it kept on foot, but only 
 to avoid mesne incumbrances, which might affect the inheritance. And 
 this appears to have been the intention of the parties, when the fee was 
 purchased, and therefore the lease ought to go with the fee ; and in the 
 cases of leases for years in trust, that have been forfeited, fraud was the 
 ground of it in the cases that have been cited. 
 
 Lord Bale says on another occasion, (^for this case was twice spoken 
 to by the Court,) I agree, that in the case of the king's debtor, lands in 
 trust for him in fee simple are liable to the king's debt by the common 
 law, per curstfm scaccarii, which makes the law in such cases ; and this 
 appears by precedents temjy. Henry YI. ; and before 4 Henry VII. a 
 trust or use was liable to a statute ; and that is the reason of Chirton's 
 case in 50 Ass. And it was held, in Sir Edward Coke's case, in 
 Curia Wardorum, that if the king's debtors have a power of revocation, 
 that makes them liable to the king's debt ; and that was the reason of 
 Babington's case, in Curia Wardortim, in 30 Car. ; and of Head's case, 
 in Pasch. 4 Jac. where lands in trust for a recusant were subjected 
 to the debt of 20/. per mensem: so, in 41 Eliz., Babington's case, a 
 trust liable to a debt imprest, because cestui que trust has a profit by it, 
 but that is a. special case, and grounded on a special course in the Ex- 
 chequer. He proceeds to state many other cases, which I think it 
 unnecesary to mention. 
 
 If you take the converse of this case, I think it will make it still more 
 
 (*347)
 
 APPENDIX. 397 
 
 clear. The reason why the term was not lurfeited, was, because the 
 inheritance thereof was not forfeited ; but if the iniieritance had been 
 forfeited, th%term must have been forfeited. In deciding according to 
 the course of the common hiw, I therefore think it clear that an out- 
 standing term cannot defeat the king's process by extent. In courts of 
 equity, it has been said that a purchaser without notice is a person fa- 
 vored by (*)that Court. Perhaps it may be a sufficient answer to say, 
 that in the present instance we are not in a court of equity. The ques- 
 tion is. What ought to be our decision according to the common law ? 
 This question could not be decided in a court of equity : they could not 
 sue for a decree. When a court of equity is resorted to, and this is the 
 situation of the parties, the Court does nothing but stand neuter between 
 such parties, and leaves them to make the most of it. 
 
 Now, therefore, Lihink, on the whole, in the first place, the land is 
 chargeable that has been in the hands of the king's debtors; and from 
 the cases that have been decided, it is sufficiently clear that the term is ; 
 it is the whole interest in the land, whether it be divided or not: and so 
 likewise in uses and trusts ; and from what is said by Lord Hale, I in- 
 fer the same doctrine is applicable to the actual case now before us. 
 
 It was hinted, that the 33 Hen. VIII c. 39, sect. 50, 53, and 74, puts 
 the king's debts on the same footing as a statute staph ; but we find the 
 same difficulty again recurs, for the 33d of Hen. VIII. does not alter 
 the subject out of which the thing is to be paid. If I suppose, in 
 the present instance, they are put on the same footing with statutes 
 staple, the question would return ; supposing the king has a debt upon 
 bond, which is to be treated as a statute staple, I do not find the act 
 meddles with the subject out of which he is to compel the payment 
 of his debt, but the act relates singly to the mode by which he is to do 
 it ; and if the king were to put it on the footing of a statute staple, it 
 would deprive him of no remedy which the common law gave him. 
 The subject is not at all touched by the statute, but merely the manner 
 in which he is to proceed, which perhaps gives the subject rather more 
 advantages than he had before, though I do not see very clearly in what 
 respect the situation of the king's accountant is altered. 
 
 Now that being so, it should seem to be the result of what one rinds in 
 the books, that of the king's common-law remedy it is impossible to 
 doubt ; and that remedy is given in every case where the party who 
 is indebted to the Crown has a present beneficial interest, as well as a 
 reversion : both of these are considered as chargeable fi)r the debt of 
 the Crown ; the lands of the king's debtor may be extended by the 
 Crown, in whatever hands they may be found, and therefore, upon the 
 whole, the judgment of the court in this case must be for the Crown. 
 
 Judgment for the King. 
 (*348;
 
 398 APPENDIX. 
 
 (*)No. XVIII. 
 
 The Allorneij-General v. Lockleij and others[h). Chalt. JSIich. 9 
 
 Geo. 11. 
 
 This was an information brought to secure a charity, and the case 
 was thus : John Radford, and Anne his wife, were seised in fee, and 
 conveyed the premises by fine and deeds, declaring the uses thereof, to 
 their trustees and their heirs, to the use of them and their heirs, in trust 
 for John Radford and his wife, and the survivor of them, and the heirs 
 of the survivor, with power for the wife, in case the husband survived 
 her, to charge the estate with 400/. The wife died first, and executed 
 her power for charitable uses ; John enjoyed the estate during his life ; 
 and by will, dated 25th Jan. 1723, he devised the premises in fee to Tu- 
 der Lockley. • Now this estate was to be sold for discharging the charity 
 and payment of mortgages made by Tuder Lockley : and the question 
 was, whether the sale should be subject to the dower of Tuder Lockley's 
 wife, in case she survived her husband. It was argued by JVoe/ in favor 
 of dower, and by Verney against it ; and the following cases were cited : 
 Preced. Cane. 241, 250 ; Banks and StUton at the Rolls, March 1733 ; 
 Preced. Cane. 336; Chan. Rep. 369; Show. Ill; Preced. Cane. 
 65 ; Cro. Car. 901 ; Ambrose and Ambrose, determined in the year 1717, 
 in the House of Lords(I). 
 
 Talbot, Lord Chancellor. — This is a considerable point, and should 
 be settled some way or other ; in the first place with regard to the wife, 
 her demand is properly a legal one, and it has been hinted at, as if the 
 legal estate was executed in Mr. Tuder Lockley ; but there is no foun- 
 dation for that, as the estate is limited to trustees and their heirs ; there- 
 fore it is a legal estate absolutely executed in the trustees, for there can- 
 not be a use limited on a use. Then the question will be, whether Tu- 
 der Lockley's (*)wife is entitled to dower of an equitable estate of in- 
 heritance vested in her husband ; for at present the husband is living, 
 and if the wife died before him, then this question never can arise. As 
 dower is a legal demand, so clearly, with regard to a use, a wife was 
 not dowable of it before the stat. Hen. VIII. Vernon's case, 4 Co. 
 1. Then how can she be dowable of a trust after that statute 1 For is 
 
 (6) Vide supra, vol. 1. p. 517, n. 
 
 (I) This is the case in 1 P. Wms. 321. The case was that the deceased husband bought 
 an estate in the name of a third person. The Court considered it clear that the wife was not 
 dowable of the trust estate. It appears by the report, that the decree was affirmed in the 
 House of Lords. I find by the Journals of the House of Lords, that the wife prayed that the 
 estate might be deemed part of the personal estate of her husband, or at least that she might 
 be entitled to her dower out of it. See Journ. Doni. Proc. vol. 20, p. 456. 
 
 (*349) (*350)
 
 I 
 
 APPEISDIX. Scg 
 
 there any solid distinction between a use before a statute and a trust 
 after it ? What was a use but a right to receive the rents and protit? 
 of lands of which the legal estate was in another 1 And a trust is 
 the very same now : and if before the statute the right of the wife 
 was considered strictly as a legal right, so that the equitable interest 
 was not affected by it, the reason holds equally strong since the statute? 
 that courts of equity should follow what was the rule before the stat- 
 ute with regard to those estates. How there came to be a differ- 
 ence as to estates by curtesy, I cannot tell ; nor how it came to be ex- 
 tended to estates by curtesy, and yet not to dower, I cannot tell. I do 
 not see, on this general question, whether a wife shall be endowed 
 of a trust estate of inheritance, that there is one case, from the time 
 of the statute H. YIII. to this time, that is directly in point, except 
 the case of Fletcher and Robinson, Prcced. in Cane. 250. That 
 case is extremely short ; and the reason given for it is, whether it be 
 a good one or no I shall not say, that the conveyance was consider- 
 ed as fraudulent, being done w ith an intent to prevent a forfeiture ; 
 and therefore, in that case, the Court seems to have disregarded it, 
 which shows it was not determined simply on this point, but on 
 other matters, which do not fall in with this case. The case of Banks 
 and Sutton seems to have been determined on this, that the time 
 of the conveyance was come, and the husband had a right to call 
 for it ; and then the Court, upon considering that as done which 
 ought to have been done, micht properly assist the wife in that 
 case. The case of Boltoniley v. Fairfax, Preced. in Cane. 336, before 
 my Lord Harcourt, is an express authority that a wife is not dowable of 
 a trust estate of inheritance ; and to this it may also be added, that it is 
 the general received opinion of every one who has attended this bar con- 
 stantly, that they are not ; and it is the practice to make purchases in the 
 name of the purchaser and trustee — but to what intent or purpose 1 Only 
 to prevent dower, that by there being a survivor to the purchaser, his 
 wife might not be entitled to it. But if it should be ruled, that a 
 wife is entitled to a dower of a titist estate of inheritance, provisions 
 (*)of this kind would be overthrown. I mention this, because it is 
 hinted at, as if the practice of conveyancers was not of great weight ; 
 and truly it is not in their power to alter the law : but when there is a 
 received opinion, and conformity of contracts and settlements thereon, 
 it is extremely dangerous to shake it, which would disturb the posses- 
 sion of many who are very quiet, and think themselves very secure ; 
 therefore it ought to be done only on the clearest and plainest ground. 
 In the present case I cannot say they are mistaken, because they have 
 gone on this ground, that trusts are now what uses were at the common 
 law, where a wife was not dowable of a use. There are other cases 
 
 (*351)
 
 400 APPENPIX. 
 
 where terms for years have been carved out, and the inheritance re- 
 mains in (he husband, and as to those there is no difficulty. Where 
 the'term is created for particular purposes, and the inheritance remains 
 in the husband, and descends to his heir, which term is not a bar at law 
 of dower, but only prevents the execution of it till (he term is expired, 
 there the term may be redeemed ; and that was the case of my Lady 
 Dudley, Preced in Cane. 241. There the express limitation of the term 
 was to the owner of the freehold after the trust expired. As to those 
 cases where the inheritance is sold for a valuable consideration, (Preced. 
 in Cane. 65,) which was the case of Lady Radnor, and the purchaser 
 took an assignment of the term, if it was without notice, there could be 
 no difficulty ; but whether that case was so or not, I do not remember. 
 But the present case is not that of a wife entitled to dower with a cessat 
 execiitio ; for the question here is, whether the wife is dowable of an 
 equitable estate of inheritance in fee simple ? As to what is said, that 
 this is to be considered as a contract on the part of the wife, therefore 
 equity should supply it ; the answer is, equity, where there is a valuable 
 consideration, will supply form. But hath she contracted for this par- 
 ticular estate ? No, for nothing but what the marriage implies, which is^ 
 that she shall have dower of what she is dowable by law : and then the 
 question comes to this, whether she is dowable by law of a trust ? Here 
 she could have nothing of this in contemplation at the time of her mar- 
 riage : for the equitable interest was left to her husband, long after the 
 time of her marriage, which was in 1713 ; and the equitable estate was 
 not given him till 1723. Therefore the decree must be, that the land 
 shall be sold and enjoyed, discharged of any claim of dower. 
 
 In another manuscript note of this case, Lord Talbot is (*) reported 
 to have said that trust estates, since the statute of uses, ought to be 
 considered as uses, before the statute, of which estate a woman could 
 not be endowed ; that the case of Boltomley and Lord Fairfax was 
 express in point ; that, as this method of conveying on purpose to pre- 
 vent dower, had been used for so many years, a court of equity ought 
 not to make a decree which would overturn such a number of settle- 
 ments. And the reason of the decree in the case of Banks and Sutton 
 (which he stated) was different : for there the direction of the will was, 
 that the legal estate should be conveyed to Sutton ; and the wife mar- 
 ried him on the expectation of that estate, and it was a fraud in the hus- 
 band not to call for the settlement. The other cases of dower of trust 
 estates are, where terms are created for particular purposes, and the in- 
 heritance remains in the husband : in these cases she has a title of dow- 
 er, and so she may come into this Court and redeem the term, which is 
 the case of Lady Dudley. 
 
 (*352)
 
 Arpr.NDix. 401 
 
 No. XIX. 
 
 firt^l V. Sawbridgeniul olhcrs[r-j. Jhfore the J^Iaster of the Rolls. 
 
 Sir John Wroth was seised in fee of the lands in disputi', and mort- 
 gaged the same for one thousand years to Francis Hill, as a security 
 for 1,100/., which, by several mesne assignments and further char<^es, 
 to the amount of 2,400/. in the whole, came to Richard Watson, in 
 trust for Sir Edward Bret; and Brewster (who assigned the same to 
 Watson), covenanted that Sir John Wroth, or his heirs, should convey 
 the inheritance to Sir Edward Bret : and Sir Edward Bret, reciting by 
 his will, that he had purchased of Brewster the residue of the said term 
 of one thousand years, and that there was a covenant in the purchase 
 deed from Brewster as aforesaid, but that Sir John Wroth dying before 
 the conveyances were executed, and leaving an infant of eight years old, 
 his heir at law, it was then impossible to have the fee conveyed : there- 
 fore Sir Edward Bret declared it to be his will, that when the heirs of 
 Sir John Wroth should attain the age of twenty-one, a conveyance 
 Bhould be executed according to the settlement in tail after mentioned ; 
 and he devised the same to John Bret Fisher for life, remainder 
 (*)to trustees, to preserve contingent remainders; remainder to his first 
 and every other son in tail male successively ; remainder to Nathaniel 
 Fisher for life, and in the very same manner ; and so to Edward Fish- 
 er ; remainder to the right heirs of Stephen Beckingham and Richard 
 Watson (the trustees of the term}, whom he made his executors ; and 
 then he directed the remainder of the term should remain, and be atten- 
 dant on the inheritance, according to the limitations above mentioned : 
 and all other his real and personal estate he devised to John Bret Fish- 
 er, Nathaniel and Edward Fisher. Upon the death of Sir Edward Bret, 
 the executors proved the will ; and afterwards Nathaniel and Edward 
 Fisher died intestate, without ever having any issue ; and John their 
 brother took out administration to them. John Bret Fisher, thinking 
 the limitations over to the right heira of Beckingham and Watson void, 
 took himself to be absolute owner of the term, as co-residuary legatee, and 
 representative of the other two his brothers, in case he should ever die 
 without having issue, and mortgaged the residue of the term for one thou- 
 sand years to the defendant Sawbridge, as a security for 350/. One 
 Newland purchased the reversion, and the equity of redemption, from the 
 right heirs of Sir John Wroth, for one hundred broad pieces ; but before 
 the purchase, he promised John Bict Fisher should have the benefit of 
 it, if he would pay him the purchase-money, his expenses, and a small 
 
 (c) Vide supra. vtA. 1. p. .ISe. 
 
 VOL. II. 61 (*853)
 
 402 APPENDIX. 
 
 gratuity : however, Joha Brat Fisher, a lung time after the purchase 
 was completed, neglected to comply with the terms, and so it was sold 
 to the defendant Sawbridge. John Bret Fisher, by his will, devised all 
 his real and personal estate to the defendant Sawbridge, and made him 
 his executor, and afterwards died without ever having issue. 
 
 The plaintiff filed his bill, to have the estate conveyed to him ac- 
 cording to the will of Sir Edward Bret, all the precedent limitations 
 being spent, and to have an account of the rents and profits, he being 
 heir at law, and also representative of the personal estate of Richard 
 Watson, who died in the life-time of John Bret Fisher : but Stephen 
 Beckingham is still alive, and made a defendant in this cause. 
 
 Sir Joseph Jekyll, Master of the Rolls, after argument on both sides, 
 and time taken to consider of it, delivered his opinion to the efTect 
 following : The plaintifT in this case does not want to have the term 
 assigned to him, because he has the legal interest of it in him, as rep- 
 resentative of Richard Watson, who was a (*) trustee of the same for 
 Sir Edward Bret. Then the point to be determined is with regard to the 
 account of the rents and profits. Though Brewster covenanted that 
 Sir John Wroth, or his heirs, should convey the inheritance to Sir Ed- 
 ward Bret and his heirs, yet it does not appear that Sir John Wroth was 
 under any obligation to convey the same ; for he was no party to the 
 conveyance to Sir Edward Bret, nor did any thing to show his agree- 
 ment thereto : but the covenant of I'rewster to Sir Edward Bret, being 
 before the statute of frauds, there might be a parol agreement by Sir 
 John Wroth that he would convey, and it would be good ; otherwise it 
 would be difficult to account why Brewster should enter into such a 
 covenant. However, Sir Edward Bret, by his will, desiring the heirs 
 of Sir John Wroth to convey the inheritance, and directing the limita- 
 tions of the same, and that the term should be attendant on it, did in- 
 tend to devise the inheritance, and not the term in gross. But it is 
 said, though the inheritance cannot pass, the term may, according to 
 the limitations in the will of Sir Edward Bret. It is not necessary now 
 to enter into the question how far limitations of terms are good, or whe- 
 ther, by such limitations as those in the present case, all the prior de- 
 visees dying without having had issue, the remainder of this term could 
 vest in the plaintifT as to one moiety. But if I was to deliver my opin- 
 ion about it, I should be under great difficulty : for on this point there 
 is the opinion of one Lord Chancellor against another ; my Lord Cow- 
 per, in the case of Higgins and Dowler, 2 Vern. 600, and Salk. 156^ 
 held such remainder of a term to be good, all the parties dying without 
 ever having any issue : and by the present Lord Chancellor, there have 
 been two cases determined, Clare and Clare, P. 7. G. IL Saberton and 
 Saberton, 8 G. IL In one of them it may be taken, there was an estate 
 
 (*354)
 
 APPENDIX. 403 
 
 tail in the first taker ; but in the other it seems not to be so ; but in both 
 of them my Lord Chancellor held such limitations of estates tail, though 
 to persons not in being, and never vesting, to be too remote, and so deli- 
 vered his opinion. Higgins and Dowler, as it appears to me, was not 
 clearly stated and urged, but was taken as it is reported in Salk. and 
 Vern., which my Lord Chancellor said was incorrectly done in both of 
 them : but I have a complete report of it by two gentlemen ; and in 
 the case of Stanley and Lee, M. 8. G. IL, T looked into the pleadings 
 and the Register's book ; and on the whole matter I find the judgment 
 of my Lord Cowper was, that such limitations never having been in 
 (*)es*e, and so not vesting, the limitation over might be good. There 
 is one case I did not mention, when I gave my opinion in Stanley and 
 Lee, and that is Massenburgh and Ashe, Chan. Rep. 275, in which 
 the Judges were of opinion, tliat the limitation of a trust of term 
 must be considered as limitations of a term at law ; and that case is 
 stronger for allowing limitations over than this, though that was on a 
 deed, and this is on a will, which has a more favorable construction. 
 But I must leave this point of the limitations of a term for future 
 consideration, if ever it comes before the Court, for this case will 
 turn on a ditferent point(I). Here Sir Edward Bret thought he was 
 
 (I) It is very satisfactory to find that Sir Joseph Jekyll did not give up his opinion in Stan- 
 ley V. Lee. The doctrine in the case of Stanley v. Lee (2 P. Wms. S. C. MS.) is now 
 vvpII established, and the case of Clare v. Clare (For. 21, S, C. MS.) is overruled by a series 
 of authorities. See Sabbarlon i\ SaLliarlon For. 55. 245. S. C. MS.; Ki.ight «. Ellis, 2 
 Bro. C. C. 570 ; Phipps v. Lord Mulgrave, 3 Ves. jun. 516. The rule, as now settled, is ac- 
 curately stated by Mr. Fearne — Whatever number of liniitalions there may be after the first 
 executory devise of the v. hole interest, any one of them, which is so limited that it must take 
 effect (if at all) within twenty-one years after the period of a life then in being, may be good 
 in event, if no one of the preceding executory limitations, which could carry the whole interest, 
 happens to vest ; but wheu once any preceding executory limitation, which carries the whole 
 interest, happens to take place, that instant all the subsequent limitations become void, and 
 the whole interest is then become vested. Exec. Dev. 4th edit. 415. 
 
 In a former edition of this work a discussion was introduced, in this place, on the question, 
 whether the term of twenty-one years, after a life in being, could be taken as a term in gross 
 in the case of an executory devise. This will now be found in n. (2) to the last edition of 
 Gilbert on Uses, p. 260. The case of Beard and Westcott, there mentioned, was fully argued 
 before the Master of the Rolls, upon the certificate being returned; and on the 17th Dec. 1811, 
 the Master of the Rolls gave the following judgment : — "This case stood over in consequence 
 ofa suggestion, that the certificate of the Court of Common Pleas involved in it the decision of 
 a new question, which had not undergone any particular discussion, or received any particular 
 consideration in that Court: namely, how far the validity ofa limitation over, by way of execu- 
 tory devise, is affected by the circumstance that the period of 21 years, after the duration of 
 an estate for life, has not any connection whatever with the minority of any person taking an in- 
 terest under the preceding limitations. Now I do understand, that the question certainly did not 
 receive any particular consideration in the Court of Common Pleas, it being taken for granted^ 
 that the rule upon this subject stood as it is commonly laid duwn in the books: namely, that thu 
 executory devise falls within the allowed limits, if the event upon which it is to take place must 
 happen within a period of 21 years affcr the life or lives in being. I am not aware, however, 
 that the point has been directly decided ; and Lord Alvanley's doctrine in the case of Thellus- 
 
 (*355)
 
 404 API'LNUIX. 
 
 (*)entitled to the trust of the inheritance, and did not intend to devise 
 the term in gross, but intended to devise the inheritance, and (*)that 
 it should attract the term; Whitechurch v. Idem. 10th Feb. G. I. 
 A man being seised of a reversion in fee, and having the trust for a 
 term for years to attend it, made a will of his own hand-writing, and 
 thereby carved out several limitations of the land and premises, not un- 
 
 son and Woodford, is against the addition of 21 years, except by way of provision for the 
 circumstance of the devisee being under age, or in ventre sa mere at the expiration of the 
 life or lives in being. — And as the question has now been raised, and as there is that degree 
 of sanction to the doubt, it does seem to me desirable, that it should be set at rest by the deci- 
 sion of a court of law; so, therefore, I propose to send the case back again to the Court 
 of Common Pleas, to call their attention to the point, that they may have an opportuni- 
 ty of pronouncing an explicit opinion upon it. I have received this information from 
 some of the Judges." — The case was accf rdingly sent back to the Court of Common 
 Pleas, who refused to hear ■ it argued, until the point upon which their opinion was re- 
 quired was stated. Thereupon, the following queslipn, with the approbation of the Mas- 
 ter of the Rolls, was stated to be the question for the opinion of the Court: " How far 
 the limitations over, in the event of there being no son or sons of John James Beard, 
 nor issue male of such son or sons living at the death of the said John James Beard' 
 or there being such issue male at that time, they shall all die before they attain their 
 respective ages of twenty-one years, without lawful issue male, are affected by the circum- 
 stance, that they are to take effect at the end of an absolute term of twenty-one years, after 
 a life in being at the death of the testator, without reference to the infancy of the person 
 intended to take, or by the circumstance, that there may be issue of John James living at 
 his death, to whom the estate is given by the will (but who would be incapable of tak- 
 ing according to the above certificate), for whose death, under twenty-one, the limita- 
 tion over, in the event before mentioned, must await." — The case has since been argued 
 before the Judges of the Court of Common "Pkas, and they certified, that the limitations over, 
 in the event of there being no son or sons of John James Beard, nor issue male of sucii son 
 or sons living at the death of John James Beard, or there being such issue male at that time, 
 they shall all die before they attain their respective ages of twenty-one years, without lawful 
 issue male, are not affected by the circumstance, that they are to take effect at the end of an 
 absolute term of twenty-one years, after a life in being at the death of the testator, without 
 reference to the infancy of the person intended to take, nor by the circumstance that there 
 may be issue of John James Beard living at his death, to whom the estate is given by the will, 
 but who would be incapable of taking according to the former certificate from the Judges of 
 this Court, for whose death, under twenty-one, the limitation over, in the event before men- 
 tioned, must await. The case is now reported in 5 Taunt, p. 393. It has been argued be- 
 fore the Lord Chancellor, who sent the case to the Court of King's Bench. It was argued 
 in that Court, and the Judges certified, that John James Beard, the grandson and heir at law 
 of James Beard the testator, took, under the said testator's will, an estate for ninety-nine 
 years, determinable with his life, in the freehold estates devised to him in the first instance, 
 and also in the leasehold estates, if they should so long continue ; and that upon his death, 
 leaving one or more sons, his first son will take an estate for ninety-nine years, determinable 
 with his life, in the freehold estates, and what shall then remain of the terms for which the 
 leasehold estates are held. And that all the limitations, subsequent and expectant upon the 
 limitation to the first son of John James Beard, arc void ; 5 Barn. & Aid. 801 ; and thatcCT-- 
 tificate has been confirmed by the Lord Chancellor, 1 Turn. p. 25. The point has again been 
 agitated in the case of Bengough v. EJridge, which now stands for judgment, and will be 
 carried to the House of Lords. In that House it has been decided that the limit is a life or 
 lives in being and twenty-one years afterwards, without reference to the infancy of any per- 
 son whatsoever ; but that is the limit, and the period of gestation is to be allowed in those 
 cases only in which the gestation exists. Bengough v. Edridge, 1 Sim. 173. Cadell v. Pal- 
 mer, 10 Bing. 140. 
 (*366) (*367}
 
 APPENDIX. 405 
 
 like those now in question ; but did not publish it in the presence of wit- 
 nesses ; and the doubt was about the limitations of the term ; for the 
 will could not pass the inheritance, being not executed according to the 
 statute of frauds. But it was insisted, it might carry the term as the 
 personal estate, upon which the opinion of the Court was taken. But 
 it was determined, it should not pass, because the devisor intended to 
 pass an inheritance, and the writing under the testator's own hand was 
 looked on as an inchoate act to pass the inheritance, and therefore 
 could not operate on the term. Besides, the testator in that case hav- 
 ing prepared a writing which was intended to be executed according to 
 the statute, there was no notice taken of any terra that should be attend- 
 ant on the inheritance, as there is in the present case, which makes it 
 stronger against the plaintiff than it was in that case. That case looks 
 like an authority that must govern the present case ; for though Sir 
 Edward Bret was not entitled to the trust of the inheritance, yet he 
 thought Sir John Wroth was bound to convey, and on that assurance 
 and persuasion made his will and intended to pass it as an inheritance. 
 There are several cases where a man intended to pass something, and 
 yet the law will not allow it ; as in case of a devise, where there is an 
 uncertainty either of the person or the thing, a fortiori here it should be 
 void, because the testator intended to pass what he had not, for he in- 
 tended to pass the inheritance when he had it not ; and there is a great 
 difference between real and personal estates, as to being assets or not, 
 and also as to the course of succession to whom the same shall go after 
 the death of the owner ; and there is likewise a difference where a will 
 is made as to the limitations of the one and of the other ; therefore 
 when the testator intended (*')to pass an inheritance and had it not, there 
 is no reason to suppose he designed to pass a term in gross ; for he says 
 the term shall be attendant on the inheritance according to the limita- 
 tions mentioned in the will ; and so, as to passing the term, the testator 
 had not animum teslandi : therefore I conceive the bill must be dis- 
 missed. 
 
 No. XX. 
 
 Forshall v. Cole and Short (d), Ch, 27ih JVo«. 1733. • 
 The JMaster of the Rolls sitting for the Chancellor. 
 
 Bill was brought to have a bond delivered up, and proceedings at law 
 upon it to be stayed. The bond was entered into on this occasion : 
 one Durant, in 1728, made a mortgage to plaintiff, but, before this, had 
 given a bond to Cole for 200/. Cole, in 1725, obtained judgment upon 
 
 (d) Vide supra, vol. 1. p. 562. 
 
 (*368)
 
 4 06 APPENDIX. 
 
 his bond, and afterwards, since the date of the mortgage, took out an 
 elegit, and extended the mortgaged premises towards satisfaction of his 
 judgment ; upon this, plaintiff, to save expense and discharge the lands, 
 gave Cole a bond for the 200/. and interest ; but it was agreed between 
 them, that the bond should be deposited in Short's hands, and only to 
 be made use of if Cole's judgment was entered so as to affect the 
 lands precedent to plaintiff's mortgage. The judgment was signed in 
 1725, but not docketed, secundum stat. 4 & 5 W. & M. c. 20, till 28th 
 January 1730. 
 
 Upon reading the statute, the Master of the Rolls was of opinion that 
 judgments cannot be docketed after the time mentioned in the act, viz. 
 the last day of the subsequent term in which they are entered, and that 
 the practice of the clerk's docketing them after that time is only an abuse 
 for the sake of their fees, and ineffectual to the party ; and he said he 
 would speak to the Judges about it 
 
 Solicitor-General. — It is proved in the cause, that the mortgagee had 
 notice of the judgment at the time of the mortgage. 
 
 Master of the Rolls. — Notice is not material,- the statute not making 
 a difference between a mortgagee with notice or without ; and besides, 
 the notice which the act requires is the docketing, which by the act is 
 become a constructive notice ; and therefore he decreed the bond to be 
 delivered up and cancelled, and that the plaintiff should have his costs 
 both at law and in (*)this Court, and that the 10/. which plaintiff had 
 paid upon the bond, should be returned, which he said the attorney 
 concerned in entering the judgment ought to pay out of his own pocket; 
 and that he believed an action on the case would lie against him, for he 
 believed it was owing to his negligence that the judgment was not 
 rightly entered : and the defendant Short having delivered up the bond 
 to Cole, and permitted him to proceed at law upon it, contrary to his 
 trust, he decreed costs as against him likewise. 
 
 No. XXI. 
 
 Burton and others v. Todd. 
 Todd V. Gee and others (e). 
 
 3lst March 1818. Judgment by Sir Thomas Plumcr, Master of the 
 
 Rolls. 
 
 These two causes are now to be disposed of. The first cause was 
 instituted in May 1804, by Messrs. Gee and" Osborne, and Mrs. Bur- 
 ton, the trustees under the will of Mr. Burton, against Mr. Todd, for a 
 
 (e) Vide supra vol. ii. p. 10. 
 (*369)
 
 APPENDIX. 407 
 
 specific performance of an agreement to purchase an estate ; which 
 agreement was entered into in August 1802. 
 
 In June 1806, the common order for a reference to the Master, 
 whether a good title could be made to the estate, was obtained by the 
 plaintiffs in this suit. 
 
 In Dec. 1807, the Master made his report that a good tit!e could not 
 be made. To this report the plaintiffs took an exception, which was 
 overruled in May 1809 ; no further proceedings have been taken in this 
 suit. 
 
 In October 1808, Mr. Todd instituted a suit against Messrs. Gee 
 and Osborne, the trustees, and against the persons interested in taking 
 the accounts under the will of Mr. Burton, to have the necessary ac- 
 counts taken, and for a specific performance of the agreement, and for 
 a compensation as to the two hundred and twenty-seven acres in the 
 agreement mentioned to be tithe-free, or subject to a very triffing 
 modus. 
 
 In December 1813, a decree was made in this cause, whereby it was 
 referred to Mr. Steele to take the necessary accounts and inquiries, in 
 order to ascertain whether a good title could be (*)made to the estate 
 in question; and to state whether a good title could be made thereto. 
 
 In December 1816, the Master made his report ; stating, that a good 
 title could be made to the estate in question, except as to the two hun- 
 dred and twenty-seven acres in the agreement mentioned to be tithe- 
 free, or subject only to a very trifling modus, and which the Master re- 
 ported not tithe-free, or subject to a very trifling modus. 
 
 The decree, therefore, in the second suit is nearly of course. The 
 plaintiff", Mr. Todd, is entitled to a specific performance, and to a com- 
 pensation for the tithes of the two hundred and twenty-seven acres. 
 The only questions are, 1st. As to the principle on which the account 
 must be taken : and 2dly, As to the costs. 
 
 By the agreement in August 1802, it was stipulated that the pur- 
 chase-money should be paid by instalments, one-third on the 10th Oc- 
 tober 1802 ; one-third on the 5th January 1803 ; and the remaining 
 one-third on the 5th April 1803, on a good title to the estate being then 
 made. 
 
 The purchaser paid the first instalment, amounting to 5,333/. 6s. 8d. 
 on the 10th October 1802, and the vendors have ever since had the 
 same in their possession, and have also received all the rents and profits 
 of the premises ; the plaintiff, Mr. Todd, never having been let into 
 possession of any part of the premises. An abstract was delivered in 
 April 1803, and was returned by Mr. Todd, with the objections of 
 counsel, before May 1803 ; and the principal objection taken to the 
 title was, that the title could not be approved unless the necessary ac- 
 
 (*360)
 
 408 APPENDIX. 
 
 counts were taken in a court of equity. The vendors insisted that the 
 purchaser was not entitled to have the accounts taken ; and instituted 
 their suit in May 1804, to compel the purchaser to take the estate with- 
 out having the accounts taken ; they failed in that attempt, and Mr. 
 Todd having subsequently instituted the second suit for the purpose of 
 having the accounts taken, was resisted by the vendors, but succeeded. 
 The vendors then having been uniformly wrong, and the purchaser 
 uniformly right, and the vendors having been in possession of one-third 
 of the purchase-money, and in the receipt of all the rents and profits of 
 the estate for upwards of fifteen years; the question is, upon what prin- 
 ciple are the accounts to be taken 1 The usual rule is, that the purchaser 
 is to have the rents, and to pay 4/. per cent, for his purchase-money. This 
 rule (*)is rather hard where the delay is not caused by the purchaser. 
 The rents seldom yield 4/. per cent. ; and the purchaser having been 
 kept out of the enjoyment of the estate, receives it at last in a worse 
 condition. In the present case, fifteen and a half years' delay has been 
 caused by the resistance of the vendors ; during that time they have had 
 the enjoyment of nearly 6,000/. of the purchase-money (which in that 
 period would be doubled) ; and have also received all the rents : to de- 
 cree the usual accounts, would be to give the party who is wrong, all the 
 advantage of the delay occasioned by himself : it would be to reward 
 the party who has done wrong, and to give him a double benefit, and to 
 work injustice to the party who has been uniformly correct. The cause 
 is novel, there is no precedent. It may be said, that Mr. Todd might 
 have applied to have the 5,333/. 6s. Sd. or the rents and profits, brought 
 into Court and laid out, but he has not done so, and the vendors have 
 reaped the benefit of his not doing so. — Under these circumstances, the 
 vendors must account, not only for the rents and profits of the estate 
 from October 1802, but also for interest, after the rate of 4/. per cent. 
 upon one-third of the rents and profits. 
 
 As to costs. The original bill must be dismissed with costs, because 
 the vendors, apprised of the olyection, instituted an improper suit. As 
 to the second suit. The vendors took no steps to amend the original 
 bill, and to frame it properly to obviate the objection to the title. Mr. 
 Todd had therefore no means of obtaining a specific performance of 
 the agreement, but by the institution of the second suit ; the vendors 
 resisted and failed ; Mr. Todd succeeded, and a specific performance 
 was decreed. There was no inconsistency on the part of Mr. Todd. 
 The will of Mr. Burton rendered it necessary that the accounts should 
 be taken. All the parties to the second suit were interested in the ac- 
 counts. The vendors must be at the expense of clearing the title, by 
 taking the accounts ; and, therefore, Mr. Todd is entitled also to the 
 costs of the second suit. 
 (*361)
 
 APPENDIX. 
 
 409 
 
 No. XXII. (/) 
 Duke of Bedford v. Tnislees of the British Museum. 
 
 Mr. Shadwellthus slated the case to the Lord Chancellor.— The nature 
 of the case is this ; 1 can state it very shortly : Lady Rachael Vaughan, 
 prior to her marriage with liorc! William (*) Russell, was seised in fee 
 of the land on which the Museum now stands, which was parcel of 
 another portion of land called Longfield and Babersfield ; and she made 
 a conveyance, by which she vested the legal estate of the whole of those 
 lands in trustees, and also the legal estate of Southampton House, which 
 was her own inheritance, in trust for her. She then married Lord Wil- 
 liam Russell, and by a deed dated 1675, to which she was a party as 
 well as Lord William Russell and the trustees of the legal estate were 
 parties, she and Lord William Russell and the trustees together were 
 empowered by the deed to grant and convey the ground on which the 
 Museum stood. By that conveyance to Ralph Montagu, Ralph Monta- 
 gu covenanted, among other things in a general way, that he would not 
 erect buildings on the ground which was conveyed to him, to the north- 
 ward of the line of Southampton House. The covenant he made was a 
 covenant not with the trustees in whom the legal estate was, but it was 
 with Lady Rachael Vaughan and her heirs and assigns. That is the 
 general nature of the case. After that Lord William Russell died, and 
 the legal estate in the remainder of the land which had not been con- 
 veyed to Ralph Montagu, was re-conveyed by Lady Rachael Vaughan, 
 and then by assignments and descents the legal estate of the land in the 
 adjacent land, the Museum garden, has descended and become vested 
 in the present Duke of Bedford. By the deed, which was a conveyance 
 to Ralph Montagu, a rent was reserved of 5/. annually, which has 
 been paid by the present Duke of Bedford ; and besides that, there 
 was also a reservation of a rent of 3Z. per day, in case any build- 
 ings should be erected in contravention of the covenant ; and that 
 rental of 3/. a day is secured by a power of entry and distress. 
 
 The question now arises Avhether, inasmuch as Southampton House 
 has been pulled down and demolished, but on the site of it and on the 
 land adjacent to the Museum gardens, houses have been built by the 
 Duke of Bedford and his tenants, whether or not he has a right in 
 eiquity to restrain the trustees of the British Museum from makmg 
 buildings in the Museum gardens, contrary to the letter of the covenant 
 which was made- by Ralph Montagu with Lady Rachael Vaughan ? 
 That is the general nature of the case. When the case was heard be- 
 
 (/) Vide nupra, vol. ii. |>. 81. 
 
 VOL. n. 52 (*362)
 
 410 APPENDIX. 
 
 fore the Vice Chancellor, this difficulty occurred in his Honor's mind : 
 he thought that the covenant was not a covenant which ran along with 
 the land ; that is, that inasmuch as the rent of (*)5/., which was the an- 
 nual rent, was only reserved out of the land granted to Ralph Montagu ; 
 and inapmuch as the rent of 3/. per day in the event of buildings being 
 made, was only reserved out of the land granted to Ralph Montagu, that 
 it could not be said that the covenant nol to build on the land granted 
 to Ralph Montagii, vpas a covenant that ran with the land which was not 
 granted to Ralph Montagu ; and therefore his Honor thought, that in- 
 asmuch as the covenant could not at all be said to run with the land, so 
 that no action at law could be sustainable. He thought that a court of 
 equity could not interfere to give the parties a more beneficial remedy 
 and a more beneficial right than had been reserved to themselves by the 
 form of the conveyance. 
 
 The Vice Chancellor gave the following judgment : — This is an ap- 
 plication to me on the part of the Duke of Bedfonl to grant an injunc- 
 tion to restrain the trustees of the British Museum from building on the 
 land which they hold in that character to the northward of the ancient 
 line of Southampton House ; and the foundation of the application 
 rests upon the grant which was made by the trustees of Lady Rachael 
 Russell, and by her appointment to Mr. Ralph Montagu, \C'ho originally 
 built Montagu House ; and it is then said, that Ralph Montagu is to 
 be taken to have covenanted with Lady Rachael RusselU her heirs 
 and assigns, that he never would build to the northward of that par- 
 ticular line. Then that the trustees are about to infringe that covenant, 
 and that this Court will interfere to restrain that infringement. The po- 
 licy of the law of England does not allow that the owner of land, when 
 he thinks fit to part with it, is to impose any captious restraint upon the 
 lawful enjoyment of the land ; and those who seek to enforce a cove- 
 nant which affects to restrain a particular lawful use and enjoyment of 
 land, must, according to the acknowledged principle of the law of Eng- 
 land, show that they have some interest in that restraint, and that it 
 is not for a captious or arbitrary purpose. The covenant is in terms 
 made with Lady Rachael Russell and her heirs and assigns simply. 
 In terms, therefore, it is a mere personal covenant. It is a covenant 
 with Lady Rachael Russell and those who in all times after her should 
 become entitled to receive the rent of 51. a-year, which is one of the 
 conditions of the grant in fee : and looking at the cov< nant according 
 to those terms, the question would be, is the interest of the Duke of 
 Bedford, as the heir or assign of Lady Rachael Russell in that 5/. a 
 year, to be materially affected by the erection of these intended build- 
 ings (*)to the northward of the line of Southampton House 1 The 
 question is, if the Duke of Bedford, as the heir or assign, was treating 
 
 (*363) (*364;
 
 APPENDIX. 
 
 411 
 
 Simply in that character, could he establish in a court of justice that his 
 interest in this perpetual rent of 51. a year will be injured by the build- 
 ings now sought to be erected, because if he is entitled to an action at 
 law for damages, he is necessarily entitled to the injunction of this 
 Court to restrain that breach of covenant ? It is not, however, con- 
 tended in argument, that it is possible fur the Duke of Bedford and for 
 his counsel here to represent that his interest in this ol. a year will be 
 in any manner lessened by the buildings now sought to be erected, but 
 on the contrary, it is perfectly plain that the erection of additional build- 
 ings would give an additional security, as it would give more value to 
 the land, and of course not diminish the legal interest of the Duke of 
 Bedford in that rent, and if it rested there, it certainly would not be con- 
 tended here that it would be possible to call for the interference of this 
 Court by way of injunction. 
 
 It is, however, said, that according to the true eftect of this instru- 
 ment, it is plain that the agreement of these parties with respect to these 
 cove ants was made not for the purpose of affording additional security 
 for the rent of ol. a year, but for the purpose of preventing such a use 
 of this land, as should tend to diminish either the valuable or pleasura- 
 ble enjoyment of the land adjoining — the valuable and pleasurable en- 
 joyment of the land upon which Southampton House was built, and 
 that the law will permit those restraints ; so that I who am possessed 
 of a particular property of which I have the personal enjoyment, that I 
 have a right so to deal with land which belonged to me, and which is 
 contiguous to mine ; that I have a right so to deal with it, if I think fit 
 to alienate it, as to restiain any use which may tend either to diminish 
 the pleasure or the profit of the land which I retain. 
 
 The question, therefore, is, whether upon the whole of this deed it 
 does appear that these covenants have been so framed as to aflbrd evi- 
 dence of an agreement that Mr. Ralph 3Iontagu entered into with 
 Lady Rachael Russell and those who represent her, as being the own- 
 ners of Southampton House and the land adjoining, that he would 
 never use this land but in the manner prescribed, ei:her to the prejudice 
 of the profit or pleasure of Southampton House ? If this deed does 
 afford evidence of such an intention to the parties to the instrument, 
 there is a (*)clear remedy at law against the act which is now sought 
 to be enforced, and, as I before observed, a clear remedy in a court of 
 equity by way of injunction to restrain the commission of that act. 
 
 The consideration, therefore, is, as I first suggested to the bar, as to 
 what would ultimately appear to be the real question between the par- 
 ties, whether this deed does or does not afford evidence of an agree- 
 ment not between Lady Rachael Russell and Mr. 3Iontagu personally, 
 but between Mr. Montagu and those who claim under him the sub- 
 
 (*366)
 
 412 APPENDIX. 
 
 ject of the grant, and between Lady Rachiel Russell and those who 
 claim under her Southampton House and the site of that house. 
 It did appear to me the first moment the case was opened, that such 
 ultimately must be the question in this case. It has been argued 
 with all the ability and ingenuity which the bar could afford — af- 
 ter all the research that the authority of the Court could afford, but 
 I confess the principle remains untouched in my mind. If. thi^ deed 
 does afford evidence at law that such was the agreement of these par- 
 ties, then this Court will follow the law, and will act upon the same 
 agreement, and will interfere to prevent the commission of the act. But 
 if a court of law declares that this deed affords no evidence of such an 
 agreement, I cannot admit the principle that a court of equity can read 
 this instrument to have a different effect than a court of law. A court 
 of equity cannot say, that although a court of law has declared that the 
 instrument affords no evidence of an agreement, that it will, upon the 
 facts stated, collect tlv>t the intention of the parties was to that effect, or 
 act upon the facts thus specified. My opinion is, that a court of equity, 
 in the construction of an agreement, must follow the law ; and if at law 
 the construction is the same as in equity, its powers will be given for a 
 different purpose, namely, for the purpose of restraining injury, and not 
 of giving damages. I must, therefore, according to my view of the case, 
 send the question to a court of law to determine what the intention of 
 the parties really was ; but I will relieve the parties from any disability 
 or obstruction they ma^ receive in a court of law in respect of the form 
 of this covenant ; and whatever the parties may feel will facilitate the 
 real decision of ihe question at law, I will take care to afford them. I 
 will take care that they shall have every facility to enable a court of 
 law to decide the actual question that is meant to be submitted. 
 
 (*)Lord Eldon ultimately decided, that under the circumstances, the 
 acts of the parties, the alteration of tl^ property, &c. the right to relief 
 in equity was at an end. 
 
 No. XXIII. 
 
 Rea V. Wiiliams, {Exch.)(g). 
 
 The plaintiff Rea and one Pritchard purchased jointly a lefise mtide 
 by the Duke of Beaufort for the life of another person, and they jointly 
 took the profits of it for some time ; but afterwards they conveyed the 
 estate to the defendant Williams, in consideration of 300/., as was ex- 
 pressed in the conveyance, though no part of the money was ever paid, 
 and Williams acknowledged by his answer, that he was a mere trustee 
 
 (g) Vide supra, vol. ii. p. 127. 129. 
 
 (*366)
 
 APPENDIX. 413 
 
 for the parties ; but no declaration of trust was ever executed, nor did 
 it any way appear with what view the estate was vested in the defend- 
 ant, any further than it was beUeved it was done to screen it from ex- 
 ecution, they being both of them much indebted. Afterwards Pritch- 
 ard died intestate, and the defendant WilHams took out administration 
 to him, but there was not assets enough to pay all his debts. This 
 cause came on to a hearing on the bill and answer, and the question was, 
 whether the trusts of the estate belonged to Rea the survivor, as the 
 whole estate indisputably would, if the legal estate had continued in the 
 two purchasers'? To prove the trust would survive, were cited 1 Vern. 
 217 ; Eq. Cas. Abr. 291 ; 2 Vern. 566, 683. 
 
 Mr. Wilbraham, to show this trust did not survive, took a distinction 
 between 2 Vern. 556, and the present case ; for there, he said, was an 
 express limitation of the trust to the two daughters, so they might take 
 jointly ; but this is a resulting trust only, and no express limitation ; 
 and equity, which discourages joint tenancies, may construe that to be a 
 tenancy in^common ; Salk. 158. If a joint tenant for years mortgages 
 his part of the term, this is a severance of the joint tenancy, 2 Vern. 
 683. 
 
 Reynolds, Chief Baron. — I think the joint tenancy of the trust in 
 this case was not severed : every one who has an estate has two rights 
 in him, a legal estate and an equitable interest ; nothing passed by the 
 conveyance to the defendant but the legal estate, and the equitable inte- 
 rest resided in the two purchasers, and (*) remained as it originally was, 
 the consequence of which is, that it must go to the plaintiff by survivor- 
 ship. Carter, Thompson and Fortescue were of the same opinion ; 
 and Fortescue said, he saw no difference between an express and an 
 implied trust. • » 
 
 No. XXIV. 
 
 Lechvure v. Lechmere{h), Ch. E. T. Geo. II. 
 
 This case was elaborately argued upon the appeal. The argument 
 lasted four days. Upon the first question Lord Talbot delivered his 
 opinion at considerable length. Upon the second question he pro- 
 nounced the following judgment : 
 
 The second question is as to the satisfaction, whether what descend- 
 ed to the heir at law is to be considered as a satisfaction of what he is 
 entitled to under this covenant. As to questions of satisfactions where 
 they are properly so, they have always been between debtor and credi- 
 tor or their representatives. As to Mr. Lechmere / do not consider 
 
 (h) Vide supra vol. il. p. 151, 152, 153. 
 
 (*367)
 
 414 APPENDIX. 
 
 him as a creditor, but as standing in the place of his ancestor, and 
 thereby entitled to what would have vested in his ancestor. A con- 
 structive satisfaction depends on the intention of the party, to be collect- 
 ed from circumstances. But then the thing given must be of the same 
 kind, and of the same or a greater value. The r-eason is plain, for a man 
 may be bountiful as well as just ; and if the sum given be less than the 
 debt, it cannot be intended as a satisfaction, but may be considered as 
 a bounty ; and if the thing given is of a different nature, then, also, as the 
 intention of the party is not plain, it must be considered as a bounty. 
 But I do not think the question of satisfaction properly falls within this 
 case, for here it turns on what was the intention of my Lord Lech- 
 mere in the purchases made after the articles, for as to all the estates 
 purchased precedent to the articles, there is no color to say, they can be 
 intended in performance of the articles ; and as to the leasehold for 
 life, and the reversion in fee expectant on the estates for life, it cannot 
 be taken they were purchased in pursuance of the articles, because 
 they could not answer the end of them. But as to the other purchases 
 (in fee simple, in possession, &c.) though considered as a satisfaction 
 to a creditor, yet they do not answer, because they are (*)not of equal 
 or greater value. Yet why may they not be intended as bought by him 
 with a view to make good the articles ] The Lord Lechmere waa- 
 bound to lay out the money with the liking of the trustees, but there 
 was no obligation to lay it out all at once, nor .was it hardly possible to 
 meet with such a purchase as would exactly tally with it. Parts of the 
 land purchased are in fee simple, in possession, in the south part of Great 
 Britain, and near to the family estate. But it is said they are not 
 bought with the liking of the trustees. The intention of naming trustees 
 was to prevent unreasonable purchases, aq^ the want of this circum- 
 stance, if the purchases are agreeable in other respects, isno reason to 
 hinder why they should not be bought in performance of the articles. 
 It is objected, that the articles say the land shall 4)e conveyed immedi- 
 ately. It is not necessary that every parcel should be conveyed so soon 
 as bought, but after the whole was purchased, for it never could be in- 
 tended that there should be several settlements under the same articles. 
 Whoever is entitled to a performance of the covenant, the personal es- 
 tate must be first applied so far as it will go, and if the covenant is per- 
 formed in part, it must make good the deficiency. But where a man 
 is under an obligation to lay out 30,000/. in lands, and he lays out part 
 as he can find purchases which are attended with all material circum- 
 stances, it is more natural to suppose these purchases made with re- 
 gard to the covenant than without it. When a man lies under an ob- 
 ligation to do a thing, it is more natural to ascribe it to the obligation he 
 lies under, than to a voluntary act, independent of the obligation. Then 
 (*368)
 
 APPENDIX. 415 
 
 as to all the cases of satisfaction, though these purchases are not strict- 
 ly a satisfaction, yet they may be taken as a step towards performance 
 and that seems to me rather his intention than to enlarge his real estate. 
 The case of Wilcox and Idem, 2 Vern. 558, though there are some 
 circumstances that are not here, yet it has a good deal of weight with 
 me. There the covenant was not performed, for the estate was to be 
 settled, but the land was left to descend, and a bill was brought to have 
 the articles made good out of the personal estate ; to which it was 
 answered, that the 2001. per annum was bought, which descended to 
 you. It is true a settlement hath not been made, but they were bouoht 
 with an intention to make a settlement, and you can make one. The 
 same will hold as strong in the present case, that these lands were 
 bought to answer the purposes of the articles, and fall within that com- 
 pass(*; and it is not an objection, to say they are of unequal value, for 
 a covenant may be executed in part, though it is not so in satisfaction ; 
 and in this particular I differ from the J\Iaster of the Rolls. There 
 must be an account of what lands in fee simple in possession were pur- 
 chased after the articles entered into, and so much as the purchase-mo- 
 ney of such lands amounts to must be looked on in part of satisfaction 
 of the 30,000/. to be laid out in land under the articles, and the residue 
 of the 30,000/. must be made good out of the personal estate. 
 
 No. XXV. 
 
 Abstract of the Special Verdict, in Fairfield v. Birch{i). 
 
 Edmond Kelly, being seised in fee in 1747, made a settlement before 
 his intended marriage, in consideration of the wife's porti«»n, as to part to 
 trustees in fee, in trust to sell and pay off incumbrances which aniouut- 
 ed to 4,000/. As to the residue, to himself for life, remainder to trus- 
 tees in the usual way, to preserve remainders ; remainder to the use 
 that the wife might receive a jointure rent-charge, in bar of dower; 
 subject thereto, to the first and other sons of the marriage successively 
 in tail-male ; remainder to the first and other sons of Edmond Kelly, 
 by any other wife, successively in tail-male ; remainder to two brothers 
 of the settler and their issue male in strict settlement; remainder to 
 Ignatius Kelly, the uncle of the settler for life ; remainder (after a limi- 
 tation to trustees to preserve) to his first and other sons successively in 
 tail-male, with 'the reversion to the settler's right heirs. Power to the 
 settler if he survived his wife, having issue by her a son, to jointure any 
 after-taken wife, to the extent of 60/. a year ; and if no issue male, of 
 
 (i) Vide supra, vol. li. p. 16i. 
 
 (*369)
 
 416 APPENDIX. 
 
 I 
 
 100/. a year; and if no issue, 150/. a year, and 2,000/. for younger 
 children's portions. Covenants for title and further assurance. Power 
 to the settler to charge 5007. but not to affect the jointure. Proviso, 
 that if the settler and his brother should die without issue, the estates 
 should stand charged with 2,000/. for the sisters of the settler, or their 
 issue. 
 
 The lands vested in the trustees in fee, were sold to Robert Birch, 
 under a decree for the payment of the incumbrances, which were ac- 
 cordingly paid out of the purchase-mone^. 
 
 (*)Robert Birch had notice of the settlement of 1747, in the year 
 1755. 
 
 Ann Kelly died in the lifetime of Edmond, previous to the 2d May 
 1758, without having had issue. 
 
 Edmond, on the 2d of May 1758, on his marriage with Harriet 
 Hihcks, in consideration of a portion of 2,500/., settled the estates to 
 himself for life, remainder to trustees to preserve, remainder to the 
 intent that the intended wife might receive a jointure rent-charge of 
 300/. per annum, if there should be issue, and subject thereto, to the 
 first and other sons of the marriage successively in tail-male ; remain- 
 der to Edmond the settler in fee. 
 
 15th July 1761, Edmond, for a valuable consideration, conveyed to 
 Robert Birch the settled estates in fee. Part of the consideration 
 the jury found to be the debts for which the estates under the decree 
 had been sold. 
 
 The brothers of Edmond died in his lifetime unmarried, and without 
 issue. 
 
 The lessor of the plaintiff was the grandson of Ignatius, the tincle. 
 
 Edmond, the settler, died in 1768, without ever having had issue. 
 
 The lessor of the plaintiff claimed under her father, Robert Birch's 
 will, and was entitled to a portion under a term of years, created by his 
 marriage settlement, which was made in consideration of his intended 
 wife's portion. 
 
 No. XXVI. 
 
 Sloane v. Cadogan, 
 Rolls, December 1808(A;). 
 
 Under a settlement made previously to the marriage of Earl Cadogan 
 and Frances, his wife, the sum of 20,000/. was assigned to trustees 
 upon certain trusts, under which, William Bromley Cadogan, one of 
 
 (k) Vide supra, vol. ii. p. 168. 
 (*370)
 
 APPENDIX. 4jiy 
 
 the children of the marriage, became entitled, subject to his father Lord 
 Cadogan's life interest therein, to one fourth share of the 20,000/., which 
 sum was afterwards invested in the 3 per cent, reduced annuities, in 
 the trustees (*) names. By an indenture, bearing date the 26th May 
 1788, William Bromley Cadogan assigned to "William Rose, William 
 Bulkley, Duncan Stewart, and Alexander Graham, their executors, ad- 
 ministrators and assigns, all such part, share or proportion, as he the said 
 William Bromley Cadogan was entitled to as aforesaid, expectant on 
 the decease of the Earl, his father, of and in the said sum of 20,000/., 
 and all the interest which after the decease of the Earl should become 
 due in respect of such share, To hold the same immediately after the 
 death of the said Earl, and subject to his life estate or interest therein, 
 in the mean time, unto the sai^ William Rose, William Bulkly, Duncan 
 Stewart, and Alexander Graham, their executors, administrators and as- 
 signs, upon trust, immediately after the decease of Lord Cadogan, %y 
 and out of the first monies which should be received by, or come to 
 their hands, by virtue of the same indenture, to pay 1,000/. to such per- 
 son or persons, and for such uses, intents and purposes, as he the said 
 William Bromley Cadogan should, by any writing or writings under his 
 hand, direct or appoint ; and, in default of such direction or appoint- 
 ment, then to pay the said sum of 1,000/. unto the said William Brom- 
 ley Cadogan, of his assigns, to and for his and their own use and bene- 
 fit. And upon trust, to place out or invest the residue or surplus of the 
 said monies and premises, as soon as might be, after the same should 
 be received by them the said trustees, in such stocks, funds, or securi- 
 ties as therein mentioned ; and to stand possessed of all the said resi- 
 due of the said trust monies which should remain after payment of the 
 said sum of 1,000/. and of the said stocks, funds or securitis ; upon 
 trust to pay unto or authorize the said William Bromley Cadogan and 
 his assigns, to receive the interest, dividends, and annual produce, for 
 life ; and after his decease, and in case his wife, the plaintiff, should be 
 then living, upon trust to pay unto or authorize her and her assigns to 
 receive the interest, dividends, and annual produce thereof for her life, 
 for her and their own use and benefit, the same to be in lieu of dower ; 
 and immediately after the decease of the survivor of the said William 
 Bromley Cadogan and plaintiff, upon trust to pay, assign and transfer the 
 said residuum, and the stocks, funds, or securities for the same, in such 
 manner for the benefit of the issue of the marriage between them the 
 said William Bromley Cadogan and plaintifl', as therein mentioned ; and 
 *' for default of such issue, (*')upon trust to pay, assign and transfer the 
 same to such person or persons, and upon such trusts, for such uses, 
 intents and purposes, and by, with, under and subject to such powers, 
 provisos, charges, conditions, and limitations over, as he the said Wil- 
 voL. II. 53 (*371) (*372)
 
 418 APPENDIX. 
 
 liam Bromley Cadogan, at any time or times during his life, by any deed 
 or deeds, writing or writings, with or without power of revocation, to 
 be sealed and delivered in the presence of, and attested by two or more 
 credible witnesses, or by his last will and testament in writing, or any 
 writing in the nature of, or purporting to be his last will and testament, 
 to be by him signed and published, in the presence of, and attested by 
 such and the like number of witnessess, should direct, limit or appoint ; 
 and in default of such direction or appointment, or in case of any 
 such, and the same should not be a complete disposition thereof, then 
 upon trust to pay, assign and transfer the said residue, and the stocks, 
 funds or securities for the same, or so much thereof whereto any such di- 
 rection or appointment as aforesaid should not extend, to the said Earl 
 Cadogan (his father), his executors, administrators and assigns, to and for 
 his and their own use and benefit. And, in the same indenture is con- 
 tafhed a proviso empowering the said William Eromley Cadogan and his 
 wife, the plaintiff, at any time during their joint lives, to revoke the said 
 trusts, or any of them, and to appoint or limit new or other trusts in the 
 manner therein mentioned. The 3 per cents, were sold, and the pro- 
 duce lent to the Earl in 17S6, upon real security, by-way of mortgage- 
 William Bromly Cadogan, on the 11th May 1789, made his will, 
 which was signed and published by him in the presence of and attested 
 by two credible witnesses, and thereby directed his executrix to sell a 
 leasehold estate at Reading ; " and as to the money arising from the 
 sale thereof, I give the same to my executrix ; and as to all the rest 
 and residue of my estate and effects whatsoever, I give and bequeath 
 the same to my dear wife Jane Cadogan." And he appointed her his 
 sole executrix. And the said testator shortly afterwards made a codicil 
 to his will, which was not attested, in the words following : Whereas, 
 by marriage settlement, I have given to my dear wife Jane Cadogan 
 for her life, the whole interest of the moiety of my mother's fortune 
 which was settled upon me, as will appear by the settlement itself, re- 
 serving to myself 1000/. for my own private use. And whereas I bor- 
 rowed at Midsummer 1789, of Mr. (*) William May, of Bingfield Mill, 
 the sum of 600/. at4| per cent, interest, and gave as security for the 
 same the joint bond of myself, the Rev. Mr. Bulkley, and Mr. William 
 Simmonds Higgs, of Pangbourn-lane, Reading ; 1 hereby direct, that 
 the above-mentioned 1,000/. be appropriated to the discharge and pay- 
 ment of the said bond ; and if it should be convenient to my dear and 
 honored father, the Right honorable Lord Cadogan, to pay the said sum 
 of 600/. to the aforesaid Mr. May, of Bingfield, and to take to himself 
 the 4| per cent, interest, and deduct the whole principal and interest out 
 of the moiety of my mother^s fortune, which comes to me and my heirs 
 at his decease, I shall esteem it a great favor added to the many I have 
 (*373)
 
 APPENDIX. 419 
 
 received from him before. And the testator afterwards made a codicil 
 to his will, also not attested, in the words following : In November 1790, 
 Lord Cadogan was so kind as to pay the above-mentioned 600/. for me 
 to Mr. May, of Bingfield, by the which fatherly act of goodness, add- 
 ed to many others of the same kind, I am freed from all debts and 
 incumbrances whatever, excepting an annuity of 10/. a year, which I am 
 engaged to pay to Mrs. Warsand, Mrs. Cadogan's aunt, now living at 
 Paradise-row, Chelsea, for her life ; and also to pay the expenses of 
 her funeral. 
 
 There was no child of the marriage between the testator and his wife. 
 The testator did not, in his lifetime, in any manner, execute his general 
 power of appointment in the indenture of 26th May 1783, or his power 
 of appointment of the said sum of 1,000/. unless by his will ; nor did he, 
 together with the plaintiff, execute their joint power of revocation there- 
 in contained. 
 
 The plaintiff claimed to be entitled to one fourth part of the 20,000/., 
 and the bill was filed against the executors of the Earl of Cadogan, to 
 establish her right. 
 
 The defendants, in their answer, stated, that the Earl paid off the 
 600/. and interest, mentioned in the codicils, and they submitted, that 
 they became entitled to be repaid such sum out of the 1,000/. ; and they 
 claimed to be entitled to the whole of the fourth share of the said Wil- 
 liam Bromley Cadogan, subject to the plaintiff's right to the interest for 
 her life (save and except the aforesaid 1,000/. part thereof,) under the 
 indenture of 26th of May 1783. 
 
 Mr. Richards, Mr. Stephen, Mr. Bowdler, and Mr. Sugden, for the 
 plaintiff. The argument of the latter, which in a great (*)measure was 
 a repetition of the arguments before urged, is the only one of which he 
 is enabled to give the reader a full note. 
 
 It was to the following effect : — 
 
 The first question is as to the 600/. The defendants might as well 
 contend that they are entitled to an account of every sum advanced by 
 the Earl to his son. In every case, between a father and child, a provi- 
 sion by the father is deemed an advancement for the child, on account of 
 the connection of blood. If a father purchase in the name of a child, 
 prima facte, it is an advancement for the child, and the evidence to rebut 
 this lies on the father ; whereas, if a purchase be made in the name of a 
 stranger, the presumption is otherwise, and the evidence to rebut it lies 
 on the stranger. Besides, if the question here was between strangers, 
 payment might be pleaded although twenty years have not yet elapsed. 
 Lord Mansfield laid it down that sixteen, eighteen or nineteen years 
 were sufficient whereupon to found the presumption of payment (Mayor 
 of Hull V. Horner, Cowp. 109 ; Oswald r. Leigb- 1 T. Rep. 270), ami 
 
 (*374)
 
 420 APPENDIX. 
 
 Lord Erskine so considered the rule (Hillary v. Waller, 12 Ves. 266). 
 And even if payment would not be presumed, yet a jury would, in this 
 case, be directed to find a release. (Washington v. Brymer, App. to 
 Peake's Evid.) — [This point was given up by the defendants.] 
 
 The principal question, however, is, whether the power is executed ; 
 and first, whether it is executed by the will alone ? I must admit, that 
 in general a sweeping disposition, however unlimited in terms, will not 
 include property over which the testator has merely a power, unless an 
 intention to execute the power can be inferred from the will. But great 
 Judges have disapproved of this rule. Lord Alvanley, in Langham v. 
 Nenny, 3 Ves. jun. 467, wished that the rule had been otherwise, and 
 that it had been held that a general disposition would operate as an exe- 
 cution of the power ; and in Hannock v. Horton, 7 Ves. jun. 391, Lord 
 Eldon said, that he was not sure that the rule, as now established, did 
 not defeat the intention nine times out of ten. In favor of the rule it 
 has been said, that to overturn it would be to destroy the distinction be- 
 tween power and property. That I deny. The marked and only mate- 
 rial distinction between power and property is, that in the case of abso- 
 lute property, although the party make no disposition of it, yet it will de- 
 scend to his representatives ; whereas a person must actually execute 
 (*)his power, or the fund will go over to the person to whom it is given 
 in default of appointment. But why should not the same words operate 
 as an execution of the power which would pass the absolute interest 1 
 Where is the distinction as to the purposes of disposition between a 
 general power like this and the absolute interest? If the solemnities 
 required by the power are adhered to, it would startle a man of common 
 sense not versed in legal subtleties to understand so refined a distinc- 
 tion. As therefore the rule stands upon no principle, and has been re- 
 gretted by great Judges, the Court will be anxious to distinguish cases, 
 and not to consider every case as within this geneml rule. Now there 
 not a single case in the books which governs the present. Ours is 
 a peculiarly strong case. The gift to the Earl in default of ap- 
 pointment was without consideration, and the parties had a power of 
 revocation. The persons who prepared the settlement did not under- 
 stand the distinction between power and property. They gave the 
 1,000/. to such persons as Mr. C should appoint, and in default of ap- 
 pointment to him and his assigns. There the power was merely nuga- 
 tory : it was not larger than the gift, nor differed from it in effect. 
 Besides, here the property moved from IMv. Cadogan ; the settlement 
 as to the Earl was merely voluntary, and the power was part of 
 Mr. Cadogan's old dominion, and consequently the execution of it 
 must receive a favorable interpetation. In this respect all the cases are 
 distinguishable. MonUon v. Hutchinson, 1 Atk. 558 ; Andrews v. 
 
 (*375) 
 
 I
 
 APPENDIX. 421 
 
 Emmott, 2 Rro. C. C. 297 ; Buckland v. Barton, 2 H. Blackstone, 
 130 ; Croft v. Slee, 4 Ves. jun. 60 ; Nannock v. Horton, 7 Ves. 391 ; 
 and Bradley v. Westcott, 13 Ves. 445, are all cases where the power 
 was given by one person to another, and cannot be compared to our case, 
 where the power was reserved by the party over his own property. 
 There are two cases, I must admit, where nearly the same circumstances 
 did occur. Ex parle Caswall, 1 Atk. 559 ; Bennel v. Aburrow, 8 Ves. 
 609. But the first case came on merely upon a petition ; and Lord 
 Hardwicke said he would not say what his opinion would be if it came 
 on upon bill and answer. Besides, Lord Hardwicke overruled this 
 case by a later determination, as I shall presently show. In the last case 
 the property in default of appointment was given to the next of kin, which 
 may be thought to distinguish it from ours. But if there is no authority 
 against the plaintiff, there are two very considerable cases in her favor. 
 The first is (*)Maddison v. Andrews, 1 Ves. 57. There a man made a 
 settlement, reserving to himself power to charge, Hmit, or appoint the 
 estate with any sum not exceeding 1,000/. By his will, without making 
 the slightest reference to his power, he gave some legacies, and then 
 charged all his estate with the payment of his dftbts and legacies. Lord 
 Hardwicke held that the power was part of the old ownership ; and that 
 it was but a shadow of difference that he had charged all his estate ; 
 whereas this was before setded to uses, for these powers to the owner 
 were to be considered as part of the property. Now this is precisely 
 our case, and to decree against the plaintiff your Honor must overrule 
 Lord Hardwicke's decision. The other case is Standen v. Standen, 
 which has been already so justly relied on. It is impossible to read 
 that case without seeing that Lord Rosslyn would have decided it on 
 the ground of the power being equivalent to the ownership, even if tfie 
 circumstance had not occurred to which the decision is generally refer- 
 red — that the testatrix had no real estate except what was subject to the 
 power. And yet in that case the power was a gift by a will from a hus- 
 band to his wife, and was not, as in our case, a part of the donee's old 
 dominion. 
 
 But if the will of itself is not an execution of the power, that and the 
 codicil taken together certainly are. The operation of a codicil even in 
 respect of real estate is to republish the will, and pass after-purchased es- 
 tates, although not noticed, if executed according to the statute of frauds. 
 Piggott V. Waller, 7 Ves. jun. 98. And where, as in our case, new mat- 
 ter is introduced, it forms an integral part of the will, in the same manner 
 as if it had actually been inserted in the will at the time of its execution. 
 And on this ground a codicil may explain a doubtful expression in the will, 
 or may give an estate by implication, where the testator refers to what he 
 supposes he has done by his will, although the disposition in the will is 
 
 (*376)
 
 422 APPENDIX. 
 
 not what he states it to be. Hayes v. Foorde, 2 Blackst. 698 ; Beable 
 V. Dodd, 1 T. Rep. 193. In our case the words in the will are suffi- 
 cient, if an intention appeared to execute the power, and as such 
 an intention does appear by the codicil which forms part of the 
 will, they both together amount to an execution of the power. It is im- 
 possible to misunderstand the words in the codicil, " which comes to 
 me and my heirs at his decease." They admit of but three construc- 
 tions : — 1st. He considered the fund as having (*)passed to his de- 
 visee, who was his h(zres f actus : or 2d, he adverted to its going to his 
 hizres natus, or child under the settlement : or 3d, he looked to the 
 event of its going to his father, the Earl, in default of appointment. 
 The 2d cannot be the right construction ; for if there was issue to take 
 the fund, their right would prevail over the testator's, and the Earl could 
 not retain his debt out of a fund which would in that event belong to 
 them. The last construction is absurd : it would amount to a request, 
 as has been already shown, to a man to pay himself a debt out of his 
 own money. — But he considered the property as having passed to his 
 wife ; and as he knew that it was in the hands of his father, who had a 
 life-interest in it, he requested him to retain the money out of it, and 
 not to let his wife be troubled for it till the property given to her fell into 
 possession. This then clearly establishes the first construction. Our 
 case must not be compared to Holmes v. Coghill, 7 Ves. 429, 12 Yes. 
 206 ; for there the power executed by the will was discharged before 
 the execution of the codicil. 
 
 It will, however, I suppose, be objected, that the codicil is not attest- 
 ed, and consequently cannot be deemed an execution of the power. 
 But it is sufficient where a power is executed by several instruments, 
 that the principal one is duly executed. Earl of Leicester's case, 1 
 Ventr. 278. The will and codicil amount together to an execution of 
 the power. But I need not insist upon this, because the plaintiff being 
 a wife is entitled to have the defect in the execution supplied ; and it is 
 not material that she is in part provided for, because the husband is the 
 judge of the quantum of provision ; nor is it material that the provision 
 was made after marriage, although to constitute a good settlement of re- 
 alty, as against a purchaser, a settlement after marriage is merely vo- 
 luntary. Fothergill v. Fothergill, 2 Freem. 256 ; Hervey v. Hervey, 
 1 Atk. 661 ; Churchman v. Harvey, Ambl. 335. 
 
 But strong as these gronnd^ are, they are not the only ones upon which 
 the plaintiff's case may be rested. I mean to contend, that the suppos- 
 ed settlement of Mr. Cadogan was merely tantamount to articles, that 
 the gift to the Earl was voluntary, and consequently, cannot be enforced 
 by this Court, and that it is immaterial that the funds are now actually 
 vested in the executors of the Earl. I may admit, that if we asked the 
 (*377)
 
 APPENDIX. 423 
 
 Court to execute the articles they must be executed in toto. But we (*)do 
 not require the aid of the settlement to support our title ; we are content 
 to take this fund as part of Mr. Cadogan's property discharged from this 
 settlement. To constitute an actual settlement, so as to enable a volun- 
 teer to claim the benefit of it, it is absolutely necessary that the relation 
 of trustee and cestui que trust should be established. Here Mr. C. did 
 all he could ; but that is not enough. He could not make an actual 
 transfer. The trustees in whom it was vested would not have been autho- 
 rized in transferring it of their own authority to the trustees of Mr. C.'s 
 settlement. If a man is seised of the legal estate, and agree to make a vol- 
 untary settlement, it cannot be enforced. Can it make any difference that 
 the legal estate happens to he outstanding ? Certainly not. As the set- 
 tlement therefore was not completely perfected, the Earl could not en- 
 force it. It will not be pretended that there is any consideration as be- 
 tween a child and father, which will call for the interference of this Court. 
 The father is as a mere stranger. It was so as to covenants to stand seis- 
 ed ; and this Court does not even advert to every consideration which is 
 sufficient to raise a use under a covenant to stand seised. In Stevens v. 
 Trueman, 1 Ves. 73, where an agreement by a child, to settle an es- 
 tate in the events which had happened on her father, was enforced, it 
 was not even hinted that there was any consideration as between the 
 child and father ; but the decision was grounded on the gift by the 
 father of 500/. the child. And in all the cases on this subject, it will 
 be found that the decisions proceeded on the ground of some conside- 
 ration given for the settlement on the strangers. Goring v. Nash, 3 Atk. 
 186, was the mere case of a settlement by a father on his younger 
 daughter. Osgood v. Strode, 2 P. Wms. 245, was an actual purchase 
 by the grandfather of the limitations to his grand-children. Vernon and 
 Vernon, in the same book, 594, turned upon someting like a moral con- 
 sideration. Lord Chancellor King did not consider it a voluntary con- 
 veyance, 2 Kel. Cha. Ca. 10. Besides, there the Court relied upon 
 the covenant which might be enforced at law ; and, therefore, to prevent 
 circuity, they enforced a performance in specie. But even that doctrine 
 is now overruled ; Hale's case, Ch. 1764 ; and in our case there is no 
 covenant. The general doctrine in these cases is recognized in Colman 
 V. Sarrell, 1 Ves. jun. 50 ; followed by Ellison v. Ellison, 6 Ves. jun. 
 656. In this case, it is not material that the fund is actually vested in 
 (*)the defendants ; because it is vested in them in a different right. — This 
 Court will never permit a mortgagor under a settlement to claim the 
 fund in a different character. In Ellison i'. ElHson, Lord Eldon con- 
 sidered, that when the relation of trustee and cestui que trust was act- 
 ually raised, although the settlement was voluntary, it was not material 
 that the fund had, by the effect of accident, got back to the settler, as if 
 
 (*378) (*379)
 
 424 APPENDIX. 
 
 the trustee of stock should make the settler his executor. Now, .the 
 converse of this proposition must equally hold good, and that is our 
 case. — It is like a late case before your Honor, where a legacy was 
 given to a married woman by a will, and the husband was made exe- 
 cutor, and received the legacy ; and your Honor held, that he had not 
 reduced it into possession, so as to prevent his wife's right by survivor- 
 ship. And why 1 Because he had received it as executor, and not in 
 his marital right. The characters were totally distinct. That decision 
 must govern our case. 
 
 Sir Samuel Romilly and Mr. Raithby for the defendants : — 
 
 To hold the will to be an execution of the power would be to overrule 
 all the cases on residuary bequests. The case of Madison v. Andrew 
 decides nothing more than that where a man has a general power of 
 appointment, the fund shall be subject to his debts, which has long 
 been the law of this Court. [Master of the Rolls. — But there, as in 
 this case, the estate was settled subject to the power.] At any rate that 
 case is not now an authority. As to the codicil, it is said, that the de- 
 fect may be supplied ; and so it may in common cases, but here it cannot 
 be looked at, as it is not attested ; because, here no intention appears 
 to execute the power on the face of the instrument." A clear intention 
 must appear, before the Court can aid the defect. The codicil is against 
 the plaintiff. It shows that he forgot there was any power. He 
 thought, in default of issue, the property would revert to him. And, if 
 he forgot his power, the Court cannot hold that this will pass under a 
 bequest of property. The plaintiff admits (hat the will of itself would 
 not be an execution of the power, and the codicil amounts to nothing ; 
 for this is the case of a non-execution, and not of a defective execu- 
 tion. As to the point upon the settlement being voluntary, if it be cor- 
 rect, it cannot be acted upon in this case, because the plaintiff states the 
 settlement, and grounds .her title upon it. The question is not made 
 by the bill, and (*) cannot now be gone into, even admitting that the 
 law is as stated ; whereas, here the fund is actually assigned, and the 
 defendants do not require the assistance of the Court to defend their 
 title. 
 
 Mr. Richards in reply : — 
 
 The limitation to the Earl of Cadogan was merely voluntary ; it was 
 a mark of respect to him ; but, in point of law, he was a mere stranger. 
 He could not have required a subpoena against our trustees. And, in 
 fact, the defendants are asking relief, as they want to retain the fund, 
 although they are bound to re-assign it in their character of mortgagors. 
 [Master of the Rolls. — Lord Cadogan could not have come here, re- 
 quiring Mr. Cadogan to give him a better security for the money. 
 But here did Lord C. stand in need of any other aid ? The assignment 
 
 (*380) 

 
 APPENDIX. 425 
 
 was as good an assignment as could be made of this reversionary in- 
 terest. You may be a trustee for a volunteer.] Upon the will and 
 codicil taken together, there can be no doubt but that this power was 
 duly executed. The words in the codicil admit of no other meaning 
 than that the property was ^iven to his wife by his will. 
 
 Master of the Rolls having taken time to consider : — 
 
 Two points were made on the part of the plaintiff; 1st, that it was 
 necessary that the husband should execute the power. But, 2dly, if 
 it was, that his will did amount to an execution of it. As to the first, it 
 was said that the gift to Lord Cadogan was merely voluntary, and 
 Lord C. could not have had any assistance from this Court : that the 
 question is the same as if the representatives were parties seeking re- 
 lief, as the circumstance of his executors having the money makes no 
 difference, and I think that that circumstance is immaterial. But, as 
 against the party himself, and his representatives, a voluntary settlement 
 is binding. The Court will not interfere to give perfection to the in- 
 strument, but you may constitute one a trustee for a volunteer. Here 
 the fund was vested in trustees : Mr. W. Cadogan had an equitable re- 
 versionary interest in that fund, and he has assigned it to certain trus- 
 tees, and then the first trustees are trustees for his assigns, and they 
 may come here, for when the trust is created no consideration is essen- 
 tial, and the Court will execute it though voluntary. 
 
 Then the question is as to the power. The will, it was hardly contend- 
 ed, although attested, would amount to an execution of (*)the power. 
 The circumstance of the attestation has been held not to be material, 
 and it is now settled that a general disposition will not include property 
 over which the party has only a power, unless an intention appear. But 
 it is said, here is a codicil which will amount to %n execution. For 
 this no authority was cited ; and I am not aware that the conception 
 of the testator, of his power over his property, is ever referred to, 
 except for the purpose of election. But here the question is upon 
 an execution of a power. This point, however, is immaterial, as the 
 codicil does not establish the testator's intention ; he uses expressions 
 descriptive only of the interests which his mother's settlement gave him 
 in the fund, but that does not show that he meant to exercise the power. 
 It is quite evident that he had not forgot his power. Here he remem- 
 bered the settlement, and states that he had an absolute power over the 
 1,000/. The request is not evidence that he might not consider that 
 Lord C. would not, in some event, become entitled to the property. 
 But here he meant only that the money should be deducted out of the 
 1,000/. The codicil does not show that he considered all the property 
 was his, which is necessary ; and I should conclude the contrary. The 
 bill must be dismissed as to this fund. 
 
 VOL. II. 54 (*381)
 
 42G APPENDIX. 
 
 Tso. XXVII. 
 
 Bury V. Bury {I), Ch. 11 //t July 1748. 
 
 Sir Thomas Bury being seised of a freehold estate, and also possess- 
 ed of a leasehold estate, on the marriage of his son, Thomas Bury, by 
 lease and release, 3d and 4th January 1725, settled the freehold estate 
 on himself for life ; remainder to his wife for life ; remainder to Thomas, 
 his son, for life ; remainder to his intended wife for life ; remainder to 
 his first and other sons in tail-male, with remainder to plaintiff for 
 life, with remainder to his first and other sons in tail-male ; with re- 
 mainder over : and the leasehold premises were assigned to trustees, 
 to raise money to renew the lease, then to pay the rents to Thomas, the 
 son, for his life ; remainder to his intended wife for her life ; remainder 
 to his first and other sons ; remainder to the trustees, to pay the rents 
 plaintiff for his life ; remainder to his first and other sons, with remain- 
 der over. 
 
 (*)The marriage took effect ; the wife died without leaving any issue 
 male. Sir Thomas died. 
 
 Thomas Bury, on his second marriage with the defendant, havuig 
 renewed the lease, by indenture, dated 31st Dec. 1736, settled the lease- 
 hold premises to himself for life, remainder to his second wife, the defend- 
 ant, for life, with remainders over ; and therein taking notice, that the 
 said Thomas Bury teas seised for the term of his natural life ivith the 
 •power of jointuring in the said freehold lands, did, for enlarging the 
 jointure, grant the same to her, for life, with remainders over. 
 
 The marriage tc*k effect. Thomas Bury died without leaving any 
 i.ssue male, either by his first or second wife ; so that the plaintiff be- 
 came entitled to the leasehold premises, by virtue of the settlement 
 made on Thomas Bury's first marriage.. The bill was brought against 
 the second wife for an account of the rents and profits of the leasehold 
 premises, and to have all deeds and writings j|"elating thereto delivered up. 
 
 The defendant denied that she had any notice of the deeds 3d and 
 4th Jan. 1725, or that there was any settlement of the leasehold premi- 
 ses, or that any such deed was delivered to her with the rest of the writ- 
 ings. There was only one witness who had- proved he had been em- 
 ployed to look over the title for Thomas Bury and defendant; and 
 that amongst the papers he had seen a foul draft of the former set- 
 tlement, and that there was no power of jointuring in the leasehold 
 premises, which he told Thomas Bury of. 
 
 Lord Chancellor. — There are two questions : 1st, Whether she had 
 
 {/) Vide supra, vol. ii. p. 279, 293. 
 (*382)
 
 APPENDIX. 427 
 
 notice 1 2dly, if no notice, Whether she can protect herself under the 
 lease renewed by her husband ? 
 
 As to the 1st, there is no positive evidence of notice : she denied it 
 by her answer, and there being only one witness against that answer, 
 a decree cannot be made upon that one witness's testimony. Where 
 an agent has been employed for a person in part, and not throughout, 
 yet that affects the person with notice : here the recital in the deed of 
 the power of jointuring was sufficient to have made defendant have 
 inquired into it, and therefore shall affect her. In Le Neve v. Le 
 Neve she admitted Norton was her agent ; and so that differs from this 
 case. 
 
 As to the 2d, There was no surrender of the former lease, for the 
 legal estate was in trustees, and therefore the Court is to (*)judge only 
 as between cestui que trust ; and though the lease was renewed by T. 
 Bury, yet it must follow the trust of the whole term, and he can have 
 no contribution for what he paid, for he enjoyed it during his life. If a 
 lease or deed is wrongfully given up or destroyed, you may give 
 evidence of the purport of the deed, or have a discovery from the 
 granters. — Decreed, that no alteration was made in the former trusts 
 by Thomas's renewal of the lease. 
 
 (*383)
 
 i 
 
 r
 
 INDEX. 
 
 In order to avoid repetition, the points have been arranged under the heads to which they 
 appeared principally to belong, and references have been made to the principal heads from 
 every other title to which it was thought a reader would refer for any particular pomt. 
 To give an instance, under the head, Bankruptcy, Act of, the reader is referred to 
 " Notice," where he will find, whether or not an act of bankruptcy is notice to a purchaser. 
 
 [^The figures refer io the original pages as numbered al the bottonu^ 
 
 Pago 
 
 ABSTRACTS, 
 
 what should be attended to in examining them 9, n. 
 
 if the abstract be not ready at the day, the vendor cannot 
 enforce the contract at law 419, 425 
 
 but if the purchaser do not call for the abstract in suf- 
 ficient time to complete, or receive it after the day 
 fixed, equity will relieve the vendor 426 
 
 must be furnished by the vendor, at his own expense 447 
 
 should mention every incumbrance ib. 
 
 is considered complete, when ib. 
 
 for what purposes delivered ib. 
 
 to whom the property of it belongs ib. 
 
 purchaser may maintain trover for it, pending the contract, 
 if retained by the seller ib. 
 
 See Time. 
 ACRES, 
 
 what shall be deemed customary, and what statute 324, 325 
 ACT OF PARLIAMENT. See Notice. 
 ACT OF BANKRUPTCY. See Bankruptcy, act of. 
 ACTION, 
 
 a party entitled to recover a penalty, where 213. 215 
 
 may be brought by a purchaser for breach of contract, 
 
 where 216 
 
 may be brought by a purchaser for damages in case of fraud, 
 
 although he hzis paid the money under a decree 233 
 
 purchaser bringing an action for his deposit on account ot 
 a defect in title, must prove it bad 234
 
 430 
 
 ACTION— contimied. 
 
 purchaser may either bring an action for non-performance, 
 
 or for money had and received, in what cases 234 
 
 purchaser will obtain nominal damages only where the ven- 
 dor, withoat fraud, cannot make a title 235 
 or where an agent, without fraud, has sold without a 
 proper authority ib. 
 purchaser bringing an action, must give the vendor a par- 
 ticular, of what 239 
 a vendor bringing an action must show his title to the es- 
 tate 240 
 where a vendor brings an action for the purchase-money, a 
 court of law may enter into equitable objections, senible, 242 
 so if a purchaser brings an action 243 
 on breach of contract, cannot be brought by a purchaser 
 
 without tendering the conveyance and purchase-money 246 
 unless the vendor's title is bad, or he has incapacitat- 
 ed himself to perform the agreement 248 
 cannot be brought by a vendor, without having executed the 
 conveyance, or otTered to do so 245, 246 
 See Abstract. Auctioneer. Covenants for 
 Title. Damages. Interest. Purchaser. 
 Title. Title-Deeds. Vendor. 
 ADVANCEMENT, 
 
 purchase by a father in the name of his child, although ille- 
 gitimate, is an advancement ii. 140, 141 
 so a grant of copyholds, successive, to children as 
 
 nominees ii. 141 
 
 if the father be a papist, incapable of purchasing, the 
 
 case is stronger ib. 
 
 but the child must be unprovided for ii. 142 
 
 or must be considered by the parent as unprovided 
 for ib. 
 
 possession by the father, during the child's infancy, is im- 
 material ii. 143 
 so even where the child is adult, semble ii. 143 
 the parent laying out money in repairs, &c. is immaterial ii. 144 
 so a declaration of a trust, or devise by the father, 
 
 subsequently to the conveyance ib. 
 
 but if a conveyance to a son is for a particular 
 purpose, a trust will result to the father ib. 
 
 or the child may be put to his election ib. 
 
 purchase by a father in the joint names of himself and child.
 
 INDEX. 431 
 
 Pane 
 
 ADVANCEMENT— coH/imtetZ 
 
 although an advancement, is not so strong a case as the 
 other, qu. ii. 144, 145 
 
 where the father is dead, a purchase by the grandfather in 
 
 the name of the granchild is an advancement ii. 146 
 
 purchase by a husband in the name of his wife is an ad- 
 vancement ii- 147 
 purchase by a father in the name of his wife or child is void- 
 able by creditors, where ib. 
 See Evidence. Purchaser. Resulting 
 Trust. 
 ADVOVVSON, 
 
 statement in the particulars of, that a voidance was likely 
 to occur soon, not binding 3, 4 
 
 AGENT, 
 
 the extent of his authority 46 
 
 where agency established, the agent will be compelled to 
 
 transfer the benefit of the contract to his principal ib. 
 
 if the seller, for a valuable consideration, direct his agent 
 to pay over the proceeds of the sale to a third person, he 
 cannot revoke the order 47 
 
 where an agent for sale of an estate is to be paid a percent- 
 age on the sum obtained, he cannot recover his commis- 
 sion until the money is received by the principal 54 
 cannot buy the estate of his principal ii. 109, 110 
 employed by parol to buy an estate, and paying all the 
 money, cannot be compelled to convey it to his prin- 
 cipal ii- 132, 133, 139 
 but if he deny the agreement, the principal is a competent 
 
 witness to prove the perjury »- 139 
 
 who is a sufficient agent within the statute of frauds 103 
 
 estates bought by an agent with his principal's money may 
 
 be followed, where "• ^^® 
 
 purchaser must not pay money to the agent of the vendor 
 
 before the time appointed ^ * 
 
 his authority may be revoked, when 105 
 
 when not 
 effect of his evidence against his signature as agent 105 
 
 107 
 must be a third person 
 
 payment of deposit by an agent tor a purchaser, may be re- 
 covered by the latter, where 
 
 See Attorney. Auctionfeh. Evidence. 
 Notice.
 
 432 INDEX. 
 
 Page 
 
 AGREEMENTS, 
 
 where parties compelled to produce them 241 
 
 where not necessary to prove the execution by the sub- 
 scribing witness 242 
 will be enforced in equity, 
 
 against the heir at law of a vendor 191 
 
 will be enforced in equity, &c. 
 
 against equitable issue in tail, where there has been 
 
 a decree in the ancestor's life-time, semble 193 
 
 a widow entitled to free bench, where 196 
 
 the survivor of joint tenants, where 197 
 
 a husband who has covenanted to sell his wife's 
 
 estate, where 198 
 
 a person becoming lunatic after the contract, 
 
 where 200, 201 
 
 a person entitled, in default of execution of a po- 
 wer of sale, where a legal contract has been 
 made under the power, and the power is extin- 
 guished by the deaths of parties 201 
 although the agreement is by parol, where, and where 
 
 not 108. 125 
 
 the court reluctant to carry parol agreements into execu- 
 tion, on the ground of part performance, where the 
 terms do not distinctly appear 130 
 
 the vendor or vendee become bankrupt 171 
 
 the vendor or vendee be dead 172 
 
 the purchaser is a nominal contractor, where, and 
 
 where not 210 
 
 void at law, where, and where not 212, 213 
 
 a penalty be imposed 214, 216 
 
 the estate is destroyed, where 277 
 
 the consideration, being contingent, has failed, where 279 
 the vendor has not the interest which he pretended 
 to sell, or a title to the whole estate, where, and 
 where not 287. 301 
 
 the purchaser knew that the seller could not grant 
 
 the whole interest sold, semble 299 
 
 the estate is freehold, and was sold as copyhold, 
 
 where 298 
 
 the estate be defective, where, and where not 307 
 
 will not be enforced in equity 
 
 against issue in tail, where no fine or recoverv 391 
 
 I
 
 INDEX. 433 
 
 AGREEMENTS-con/«med. ^^^^ 
 
 a widow entitled to dower 196 
 
 a feme covert ib. 
 
 an infant 201. 208 
 
 where an agent has sold the estate in a manner not au- 
 thorized by his authority 206 
 an agent has committed a gross breach of trust to 
 his principal in the sale ib. 
 so of a trustee 206 
 when made in a state of intoxication 203 
 where the seller has turned the purchaser out of posses- 
 sion given according to the contract ib. 
 where it would be particularly hard on the party against 
 
 whom it should be decreed 204 
 
 there has been suppressio veri or suggeslio falsi 205 
 there has been a surprise ib. 
 
 a bad title is shown, even after the right to call 
 
 for the title is waived 225 
 
 a vendor has industriously concealed a patent 
 defect 2. 318 
 
 or not disclosed a latent defect 2. 313 
 
 or was not bondjide owner of the estate at 
 
 the time of the contract 207 
 
 or although a bond fide contractor, yet can- 
 not make a title 208 
 the remedy is not mutual ib. 
 the purchaser can obtain only an undivided part 
 
 of the estate contracted for 297 
 
 the estate is leasehold or copyhold, and the pur- 
 chaser contracted for freehold 298 
 general rules by which equity is guided in granting 
 
 a specific performance 201 
 
 to purchase and settle an estate, what is a perform- 
 ance "• ISO 
 to grant a lease, where binding on a purchaser ii. 270, 271 
 to provide a purchaser for an estate, how performed 53 
 in the hands of one party may be obtained by the other 
 
 to stamp it ^^^ 
 
 where there is only one part of the agreement executed, 
 
 it must be produced on an action 'b- 
 
 a contract for purchase not altered by a stipulation 
 that the purchaser shall be deemed a tenant to the 
 VOL. II. 55
 
 434 INDEX. 
 
 Page 
 
 AGREEMENTS— coNiiwwed 
 
 seller at a rent equal to the interest of the purchase- 
 money, and the seller has power to distrain 216 
 See Consideration. Covenants. Pur- 
 chaser. Statute of Frauds. Time. 
 Title. Vendor. Voluntary Convey- 
 ance. 
 
 ALIEN, 
 
 can only purchase for the benefit of the king ii. 106 
 
 unless he be made a denizen ib. 
 
 AMBIGUITIES, 
 
 may be explained by parol evidence, where, and where 
 not 161, 162. 160 
 
 ANNUITY, 
 
 grantor of, not bound to lay open all the circumstances of 
 
 his situation to the interested grantee 8 
 
 estate sold for an annuity must be secured, how, where no 
 
 agreement 250 
 
 estate sold for a life annuity must be conveyed to the pur- 
 chaser, although the annuitant dies before the convey- 
 ance, where 280 
 life, sold, price must be paid, although the annuitant be 
 
 dead 284 
 
 an agreement for, during three lives, will be enforced, 
 though the lives were not named, if the seller occasion- 
 ed the delay 212 
 act considered ii. 226 
 lands charged with annuities continue liable in the hands of 
 
 a purchaser ii. 39 
 
 purchaser of, from what time to receive it ii. 9 
 
 See Incumbrances. 
 APPOINTMENT, 
 
 must be registered under the registry act ii. 211 
 
 See Power. 
 APPRAISEMENTS, 
 
 duties on 54 
 
 ASSETS. See Executor. Purchase Money. 
 
 freehold and copyhold estates made, for payment of simple 
 contract debts 528 
 
 ASSIGNEES OF BANKRUPTS, 
 
 a mere attempt to sell a lease by auction, will not make 
 them chargeable as assignees 52
 
 INDEX. 435 
 
 ASSltiNEES OF BANKRUPTS— con/muerf. ^*^^ 
 
 their acceptance of a lease relieves the bankrupt 52 
 
 buying in an estate without authority, are personally 
 
 bound -73 
 
 must make the same title as vendors sui juris 367, 368 
 
 must make good a covenant for further assurance, although 
 the bankrupt was tenant in tail, and did not suffer a 
 recovery ii. 103 
 
 cannot purchase the bankrupt's estate ii. 109 
 
 and such a purchase is a sufficient cause of re- 
 moval ib. n. 
 assignee permitting his co-assignee to buy the estate, 
 f- is a sufficient cause of removal ib. n. 
 
 See Auction. Lien. Time, Title. 
 ASSIGNMENTS OF TERMS. See Terms of Years. 
 ATTESTED COPIES, 
 
 the expense of them should be provided for on sales 38 
 
 should be taken of the parcels, where the estate is sold in 
 
 lots 53 
 
 what attested copies must be furnished to the purchaser 
 
 by the vendor 529 
 
 semble, that an agreement to produce the title-deeds will 
 
 not bar the purchaser of his claim to attested copies ib. 
 
 vendor must, at his own expense, furnish the purchaser with 
 a covenant to produce the deeds ib. 
 
 and a purchaser is entitled to see the deeds ib. 
 
 purchaser obtaining possession of the deeds, may re- 
 tain them, where 631 
 purchaser will be obliged to take copies if the deeds 
 are lost, where ib. 
 ATTORNEY, 
 
 if an attorney sell an incumbered estate without disclosing 
 
 the incumbrance, he is responsible to the purchaser 7 
 
 the vendor's attorney should not be employed by the pur- 
 chaser 8 
 tlie attorney of the grantor of an annuity employed by the 
 grantee to prepare the deeds, not bound to do more 
 than his principal ib. 
 should attend to what, in examining abstracts 9, n. 
 bidding beyond his authority will himself be liable 46 
 but not unless he be limited as to price ib. 
 has what remedy where the principal denies the autliority ib.
 
 436 INDEX. 
 
 Page 
 
 ATTORNEY— co«/im(e£/. 
 
 buying in an estate witliont authority is personally bound 72 
 
 cannot buy from his client whilst the relation subsists ii. 112 
 but he is not incapable of contracting with his 
 client ii. 120, 121 
 
 how he should execute an agreement for sale of the prin- 
 cipal's estate 63 
 
 is answerable to his client in case of neglect 552 
 
 purchaser not bound to take a conveyance executed by 
 attorney 461 
 
 vendor not compellable to execute by attorney ib. 
 
 to a commission of bankruptcy cannot purchase the bank- 
 rupt's estate ii. 109, 110 
 where he cannot give evidence against his client ii. 298, 299 
 See Agent. Evidence. 
 AUCTIONEER, 
 
 ought not to prepare particulars of sale 12 
 
 may deduct auction duty out of money received, or, other- 
 wise, recover it by action 18 
 
 must pay the duty himself if he undertake to give proper 
 notices, &c. and neglect it 21 
 
 not permitted to make verbal declarations in the auction 
 room, contrary to the printed conditions of sale 31 
 
 may demand payment of the duty from the purchaser, 
 where payable by him 44 
 
 cannot give credit for the purchase-money 46 
 
 should keep the deposit till the contract be completed 47 
 
 an action will lie against him for recovery of the deposit ib. 
 
 so, for damages on breach of contract, unless he dis- 
 close the name of his principal ib, 
 
 may file a bill of interpleader, and pray an injunction, if 
 both parties claim the deposit ib. 
 
 is not, generally, liable to pay interest on a deposit 49. ii. 14 
 
 liable to damages on breach of contract, unless he disclose 
 the name of his principal 49 
 
 if interest is recovered from him, and he is not in fault, he 
 may recover from the vendor ii. 14 
 
 is not liable to expenses of investigating title 2 59 
 
 is not entitled to compensation for his services, if he omit 
 usual clauses in the conditions of sale, whereby the sale 
 is defeated 49 
 
 may safely pay the proceeds of the sale to his principal,
 
 INDEX. 437 
 
 AVCTlONiZER— Continued. ''°° 
 
 although the latter is to his knowledge in insolvent cir- 
 cumstances 49 
 is an agent for the vendor and purchaser within the statute 
 of frauds 105 
 although the purchaser bid by an agent 107 
 his clerk is an agent for both parties ib. 
 cannot buy the estate himself ii. 109, 110 
 See Auction. Auction Duty. Bidding. 
 Damages. Deposit. Interest. 
 AUCTION DUTY, 
 
 of seven pence in the pound is payable in respect of monies 
 
 produced by sale of estates by auction 13 
 
 not payable in respect of what estates 13, 14, 15 
 
 not payable if estate be bought in, by, or by the order 
 
 of the vendor 18 
 
 or by, or by the order of his agent ib. 
 
 but proper notices must be given • 19 
 
 payable although the sale is not by regular auction ib. 
 
 whenever the highest bidder is to be the purchaser ib. 
 
 will be allowed, if the vendor's title prove bad 22 
 
 where commissioners of excise bound to put a liberal inter- 
 pretation on the act ib. 
 and the purchaser can recover the duty he has paid from 
 
 the vendor, if the title be bad 45 
 
 vendor may stipulate that the duty shall be paid by the pur- 
 chaser 44 
 payment of duty, not a part performance of a parol agree- 
 ment 124, 125 
 where purchaser will be compelled to pay interest upon it, ii. 7 
 See Auctioneer. Bidding. Conditions 
 OF Sale. 
 AUCTION, 
 
 Dutch, how conducted 25, n. 
 
 sales by, vitiated by the employment of puffers 27, 28 
 
 estate advertised to be sold by auction, should not be sold 
 by private contract, without sufficient notice can be given 
 to the public 45 
 
 putting up an estate by auction, will not charge assignees 
 
 of a bankrupt as owners of it 61, 52 
 
 sales of estates by auction are within the statute of frauds 
 
 108, 109 
 contra of goods, semble ib.
 
 438 INDEX. 
 
 Page 
 
 AUCTION— co»/mMed. 
 
 See Assignees of Bankrupts. Condi- 
 tions OF Sale. Deposit. 
 BANKRUPT, 
 
 sales of bankrupts' estates not liable to auction duty 15 
 
 where purchaser, cannot compel a performance of the es- 
 tate to him 343 
 where vendor, cannot compel the purchaser to take the 
 
 title ib. 
 
 purchase by, in the name of a wife or child, is within the 
 statute of James ii. 146, 147 
 
 See Agreements. Assignees or Bank- 
 rupts. Commissioners of Bankrupts. 
 Covenants, Judgments. Titles. 
 BANKRUPTCY, ACT OF, 
 
 will not discharge a contract for a sale 171 
 
 nor an action for Breach of covenant for title ii. 104 
 
 will prevefft the execution of an agreement if no commis- 
 sion is issued 172. 343 
 will affect a purchaser, where ii. 183. 185. 189 
 See Assignees of Bankrupts. Notice. 
 BANKRUPTCY, COMMISSION OF. See Attorney. Notice. 
 BANKRUPT, ASSIGNEES OF. See Assignees of Bankrupts. 
 BANKRUPTS, COMMISSIONERS OF. See Commissioners of 
 
 Bankrupts. 
 BARON AND FEME, 
 
 estates purchased by husband with the wife's separate mo- 
 ney, may be followed, where ii. 148, 149 
 what is a good consideration for a settlement on a 
 
 wife ii. 161 
 
 purchase by a trader for his wife, where fraudulent against 
 
 creditors ii. 145 
 
 husband must perform the marriage agreement before he 
 can claim the benefit of it ii. 294 
 
 purchaser of the consideration for the settlement by 
 
 the wife is bound also ii. 295 
 
 See Advancements. Agreements. 
 BIDDING, 
 
 dumb bidding is within the auction-duty acts 20 
 
 semble, putting up an estate and no person bidding, 
 is not 20, 21 
 
 of so much per cent, more thau has been oflered is binding 20
 
 • INDEX. 439 
 
 Page 
 BWBING— continued, 
 
 private bidding on the part of the owner, not fraudulent 
 
 where there are real bidders 26. 29 
 
 unless more than one bidder is employed, semble, 27, 28 
 
 qu. if appointment of one puffer is in any case good 28 
 
 if the advertisements state that the estate will be sold loith- 
 
 out reserve, the sale will be void if a puffer bid 29 
 
 meaning of the words " without reserve" ib. 
 
 may be countermanded before the lot is knocked down 43 
 
 by a purchaser void, unless he pay the auction duty when 
 payable by him 44 
 
 See Attorney. Auction Duty. Sales 
 BEFOKE A Master. 
 BILL OF EXCHANGE, 
 
 for purchase-money given by a purchaser at a day certain 
 must be paid, although the seller refuse to convey 246 
 
 BREACH OF CONTRACT, 
 
 remedies for '216 
 
 notice of intention to rescind contract, when to be given ib. 
 
 CAVEAT EMPTOR, 
 
 where the rule applies 30L 307. 313 
 
 CHANCERY. See Sales before a Master. 
 CHAMPERTY, 
 
 what is not 562 
 
 CHARITABLE USES, 
 
 will not affect a purchaser, without notice ii. 182 
 
 unless he bought of a person who had notice ib. 
 
 CHARITY. See Devise. 
 CHOSE IN ACTION, 
 
 purchaser of, must abide by the case of his vendor ii. 264 
 
 semble, that a purchaser of a chose in action, or of any 
 equitable right, giving notice to the trustee, will be pre- 
 ferred to a prior purchaser, who gave no notice 11. ii. 264 
 CHURCHWARDENS, 
 
 can purchase a workhouse ii. 105, 106 
 
 " CLEAR" YEARLY RENT, 
 
 what it is 37 
 
 COLLATERAL SECURITY, 
 
 purchaser not affected by taking it, unless the first purchase 
 was fraudulent ii. 260 
 
 COMMISSIONERS OF BANKRUPTS, 
 
 cannot buy the bankrupt's estate ii. 109
 
 440 INDEX. • 
 
 Page 
 
 COMMISSION OF BANKRUPTCY, 
 
 if superseded, a purchaser's deposit will be returned on 
 
 petition "73 
 
 not superseded even for fraud, where there are purchasers 
 under it 724 
 
 COMPENSATION, 
 
 an agreement will be decreed to be performed pro tanio 
 
 with a compensation, in what cases 287. 291. 300. 319 
 
 for a reversion outstanding, impossible 290 
 
 a right of sporting reserved over an estate not a subject 
 
 for 300 
 
 purchaser entitled to, for a deficiency in quantity, in what 
 
 cases 318 
 
 bill for, will not lie after purchase-money paid 565 
 
 CONCEALMENT, 
 
 where it amounts to a fraud 205. 260. 307. 564 
 
 CONDITIONS OF SALE, 
 
 cannot be verbally contradicted 31 
 
 estate cannot be too minutely described in 34 
 
 although the purchaser bind himself to abide by the dec- 
 larations made at the sale 32 
 unless the purchaser have personal information given to 
 him 33 
 how construed 30 
 pasted up in sight, will bind a purchaser, where 33 
 what provision should be inserted therein 34 
 statement that the property is in lease, binds the purchaser 
 
 to the covenants in the lease 36 
 
 if misrepresentation, purchaser entitled to a compensation 37 
 condition that any mistake in the description of the estate, 
 &c. shall not annul the sale, will only guard against unin- 
 tentional errors. 41, 42 
 See AusTioN. Auctioneer. Auction Duty. 
 Bidding. Mistake. 
 CONFIRMATION, 
 
 what requisite to make it binding ii. 126 
 
 CONSIDERATION, 
 
 unreasonable, no ground to refuse the aid of equity 257, 258 
 inadequate, where a bar to the aid of the court, and where 
 
 not, when the contract is executory 259 
 
 inadequate, a ground of relief when the conveyance is exe- 
 cuted, in what cases 261
 
 7 
 
 I 
 
 I N n E X. 44 1 
 
 Page 
 CONSIDERATION— ro«/«iMerf. 
 
 inadequate, a ground for relief, where the vendor is an heir, 
 
 selling an expectancy 263 
 
 the rule as to the consideration on sale of reversions does 
 not extend to a sale by auction 272 
 
 nor to a sale by tenant for life and remainder-man ib. 
 
 contingent, agreed for, the estate belongs to the purchaser, 
 
 although the consideration fails before the conveyance 277 
 the rule does not extend to evidence of the title to the 
 
 property 278 
 
 what is deemed valuable to support a settlement against a 
 
 subsequent purchaser ii. 161 
 
 price fixed by a referee, good, where 274 
 
 agreed to be fixed by valuation generally will be enforced, 
 although no valuation be made ib. 
 
 but where particular persons are appointed, the agree- 
 ment is void, unless they act 275 
 and equity cannot relieve, although one of the 
 parties die before the award ib. 
 how payment thereof must be pleaded ii. 305 
 See Agreement. Annuity. Mahriage 
 Consideration. Purchaser. Volunta- 
 ry Conveyance. 
 CONSTRUCTION OF THE PARTIES, 
 
 not admissible to explain an instrument 166 
 
 CONTINGENT REMAINDERS, 
 
 destruction of, discountenanced by equity 355 
 
 but title depending on, good ib. 
 
 CONTRACT, 
 
 the equitable consequences of it 171. 197. 261. 274. 277 
 
 for sale of an estate, converts it into personalty in equity 186 
 although the election to purchase rests with the pur- 
 chaser ^^"^ 
 unless a title cannot be made, or equity will not per- 
 form the contract 189 
 when deemed complete 1^* 
 See Devise. Purchaser. 
 CONVEYANCE, 
 
 it should be stipulated on a sale, that the conveyance shall 
 be prepared by and at the expense of the purchaser 39. 40. 
 
 247 
 
 must be prepared and tendered by the purchaser, although 
 
 VOL. II. 66
 
 442 INDEX. 
 
 Pag*' 
 
 CONVEYANCE— coHYm«e(L 
 
 not bound to prepare it by the agreement, semble, 247. 447 
 but although required to prepare the conveyance, need 
 not do so if title is bad 248 
 
 the expense attending the execution of the conveyance falls 
 on the vendor 460 
 
 if the estate be copyhold, the purchaser must pay for 
 
 both surrender and admission ib. 
 
 the vendor is not bound to pay the fine although he 
 covenant to surrender and assure the copyholds at 
 his own expense ib. 
 
 the vendor must himself execute the conveyance or 
 
 surrender the copyhold 450 
 
 the vendor is not compellable to convey by attorney 451 
 of an estate in a register county should be registered 
 
 immediately 452 
 
 purchaser will be relieved against a defective convey- 
 ance, where ii. 264 
 See Terms of Years. 
 COPYHOLDS, 
 
 contracted for, devisable before surrender 174 
 
 pass under a general devise, if surrendered, although bought 
 
 after the will which is not republished 182 
 
 sold as freehold, cannot be forced on a purchaser 298 
 
 sold with a stipulation to avoid the sale, if they prove free- 
 hold, must be proved to be copyhold ibi. 
 the contents of the court rolls not notice ii. 296 
 See Conveyance. 
 CORPORATIONS, 
 
 cannot purchase for their own benefit without licence ii. 106 
 sealing by them is equivalent to signing and sealing ii, 208 
 COSTS, 
 
 by whom payable in equity ii. 23 
 
 COVENANTS, 
 
 in an agreeement for purchase, are construed dependent 244 
 to purchase and settle an estate, what amounts to a per- 
 formance of it 
 not a specific lien on the covenantor's lands 
 in a lease, enure to the benefit of a purchaser 
 COVENANTS FOR TITLE, 
 purchaser is entitled to what 
 
 run with the land, where, and where not 
 general, do not extend to tortious evictions 
 
 ii. 
 
 160 
 
 ii. 
 
 163 
 
 
 252 
 
 
 533 
 
 77 
 
 . 81 
 
 ii 
 
 . 82
 
 1 N D E X. 443 
 
 COVENANTS FOR TITLE— Conlimied. ^'^° 
 
 unless the wrong-doer is named in the covenant ii. 82 
 
 or the covenantor himself is the wrong-doer ib. 
 
 or the covenant is against dM pretending to claim ii. 84 
 
 will not be restrained on slight grounds ii. 92 
 
 may, on the ground of mistake, be rectified in 
 equity ii. 102 
 
 covenant for right to convey, extends to the capacity of 
 
 the grantor u. 85 
 
 limitcd,ho\v construed ii. 85. 91 
 
 restrictive icords in the first of several covenants, having 
 the same object, extend to them all ii. 93 
 
 but where the first covenant is unlimited, it will not, 
 in general, be restrained by a subsequent limited 
 covenant ii. 98 
 
 nor will a preceding general covenant enlarge a sub- 
 sequent limited covenant ii. 100, 101 
 and where the covenants concern different things, they 
 will not be controlled by restrictive words added to 
 one ii. 101 
 purchaser is entitled to what remedy under covenants for 
 
 title ii. 102 
 
 action for breach of, does not lie against devisee, under 
 
 the statute of fraudulent devises ii. 104 
 
 remedied by the 1 Will. 4, c. 47 ib, 
 
 purchaser not bound to give notice of an adverse suit to 
 the covenantor ib. 
 
 CREDITORS, 
 
 consulted as to the mode of sale, cannot buy the property 
 
 themselves , ii. 109, 110 
 
 having taken out execution, may buy the estate sold under 
 
 the execution ii. HI 
 
 guilty of laches, caimot follow specific legacy in the hands 
 of a purchaser »»• 26G 
 
 See Advancement. Purchase Money. 
 Trustees. 
 CROSS BILL, 
 
 where dispensed with 230 
 
 CROWN DEBTS, 
 
 whether a purchaser can protect himself agamst them by 
 
 a prior legal term ^^^ 
 
 simple contract crown debts do not bind ^ bond fide pm-
 
 444 INDEX. 
 
 Page 
 CROWN DEBTa—conlimied. 
 
 chaser without notice 511 ii. 
 
 of protection from, under 1 & 2 Geo. 4, c. 121 ii. 256 
 
 DAMAGES, 
 
 nominal only, can be recovered for breach of contract, 
 where the vendor cannot, without fraud, make a title 235 
 
 so even where an auctioneer sells an estate, after his 
 authority has expired, and the principal will not per- 
 form the contract ib. 
 sed qn. as a general rule ib. 
 DECLARATION OF USES. See Fines. 
 DECREES OF EQUITY, 
 
 obtained by fraud, reUeved against 66. ii. 267 
 
 where notice to a purchaser ii. 284 
 
 See Notice. 
 DEFECTIVE CONVEYANCE. See Conveyance. 
 DEFECTIVE EXECUTION. See Power. 
 DEMURRER, 
 
 lies to a bill for a specific performance against distinct pur- 
 chasers , 229 
 DENIZEN. See Alien. 
 DEPOSIT, 
 
 should be retained by the auctioneer till the contract is 
 
 completed 47 
 
 if ordered to be paid into court, it will be after deducting 
 
 the auctioneer's expenses ib. 
 
 is a part payment 49 
 
 lost by the insolvency of the auctioneer, who shall bear the 
 
 loss 48 
 
 purchaser may forfeit his deposit, and abandon the con- 
 tract, where 71 
 an investment of a deposit in the funds will be binding on 
 
 a vendor or purchaser, where 50 
 
 if a vendor accept less than the deposit, he cannot after- 
 wards object to it 51 
 purchaser will be relieved against a forfeiture, where ib. 
 if a purchaser's bill for specific performance be dismissed, 
 
 the court cannot order the deposit to be returned ib. 
 
 but if the seller's bill be dismissed, the court will compel 
 
 him to repay the deposit and with interest, where proper ib. 
 where the purchaser not allowed to recover the deposit, al- 
 though the title had not been made out 64
 
 INDEX. 445 
 
 DEPOSIT — continued. 
 
 paid by an agent for a purchaser, may be recovered by the 
 
 latter, where 234 
 
 a purchaser is entitled to interest on his deposit 238 
 
 of the title-deeds by a settler after a voluntary settlement, 
 J will not prevail at law against the settlement ii. 160, 161 
 
 See Action. Auctioneer. Interest. 
 i Sales before a Master. 
 
 DESCENT, 
 
 alteration in the law of, how effected by stat. 3 & 4 Will. 4, 
 c. 106 370, 371 
 
 DESCRIPTION OF AN ESTATE, 
 
 false 310 
 
 DEVISEE, 
 
 of an estate contracted for, not entitled to the estate, or the 
 purchase-money, if a title cannot be made 188 
 
 contra, if an estate, not contracted for, is by a will 
 directed to be bought 190 
 
 not liable to an action of covenant under the statute of 
 fraudulent devises ii, 104 
 
 DEVISE, 
 
 estates contracted for may be devised, whether freehold 
 copyhold 174 
 
 will pass by will, where 176 
 
 will not pass, where ib. 
 
 of an estate under a contract for sale to be sold for a 
 
 charity, valid 173 
 
 of an estate contracted to be sold, by a will made subse- 
 quent to the contract, gives what interest to the devisee 186 
 of a term is revoked by the purchase of the fee 175, 176 
 
 of an equitable estate, not revoked by a subsequent con- 
 veyance to the devisor 176, 176 
 unless to different uses 179 
 and then, although the contract was by parol ib. 
 revoked by a contract for sale 183 
 unless equity will not perform the contract, semblc 184 
 where the agreement is abandoned, qu. 185 
 See Will. 
 DEVISE, EXECUTORY, 
 
 its utmost limits App. n. ii. 365 
 
 DILAPIDATIONS, 
 
 where purchaser entitled to allowance for ii. 23
 
 446 INDEX. 
 
 DISCOVERY, "^' 
 
 purchaser will not be compelled to discover writings, ii. 260 
 DISTRESS, 
 
 lies for rent reserved upon a lease of freehold or leasehold, 
 where there is a reversion 252 n. 
 
 DOWER, 
 
 how affected by statute 3 & 4 Will. 4, c. 105 364 
 
 a purchaser is entitled to a fine in respect of it, where, and 
 
 where not 358 
 
 not barred by a jointure made without the wife's privity 359 
 equitable bar of, what is 262 
 
 bar of d'jwer no bar of thirds ib. 
 
 purchaser can protect himself against dower by a prior 
 legal term 618 
 
 unless it was privately created just before marriage 520 
 wife joining in barring her dower, is a valuable consideration 
 for a settlement on her ii. 167 
 
 EJECTMENT. See Mortgage. 
 ELECTION. See Advancement. Heir at Law. 
 ELEGIT, 
 
 leasehold estates may be extended on an ii. 199 
 
 EXTENT, 
 
 sale under, where a good title cannot be made 73 
 
 EQUITY, 
 
 after a bill for a specific performance is filed, the court will 
 enjoin either party not to do any act to the injury of the 
 other 217 
 
 and agents to the parties, if such agents are parties to the 
 suit ib. 
 
 not otherwise ib. 
 
 will give a purchaser compensation for breach of the agree- 
 ment, where 230, 231 
 protects purchasers bona fide and without notice ii. 268 
 See Sales before a Master, and passim. 
 EQUITY OF REDExMPTION. See Mortgage. 
 ESCHEAT. See Terms of Years. 
 ESCROW vide note p. 256. 
 EVIDENCE, PAROL, 
 admissible, where : 
 
 to prove a consideration consistent with the deed 132 
 
 so, as a defence to a bill seeking a specific performance 
 on the ground of fraud, mistake or surprise 137 
 
 or to explain latent ambiguities 152
 
 INDEX. 447 
 
 EVIDENCE, PAROL— continued. ^*^^ 
 
 or the meaning of ancient instruments 167 
 
 or to show what is parcel or not, of the thing conveyed 152 
 
 or to explain a mistake, where, and where not 158. 165 
 
 or on the ground of fraud 167 
 
 or to correct a settlement made contrary to the intention 
 
 of the parties, merely to prevent a forfeiture 165, 166 
 
 to prove a resulting trust ii. 135 
 
 even after the death of the nominal purchaser ii. 136 
 
 to rebut a resulting trust, or any equitable presumption 
 
 ii. 138, 139 
 ' not admissible, where : 
 
 to disannul or vary a written agreement 132 
 
 nor to correct printed conditions of sale 134. 136 
 
 ■the rules are the same in equity 135 
 
 not even as a defence to a specific performance, if the 
 
 agreement was, at the time, correctly reduced to writing 142 
 nor of collateral matters, although not mentioned in the 
 
 agreement 143. 145 
 
 nor of the variation of an agreement ib. 
 
 nor of the discharge of a written agreement, except as a 
 defence in equity 146. 151 
 
 unless the parol agreement has been in part performed ib. 
 nor to explain a patent ambiguity 162 
 
 as the meaning of a word in a deed ib. 
 
 or act of parliament 163 
 
 nor to restrain general words 165 
 
 nor of the construction of the parties 167 
 
 nor where parties have omitted a provision, deeming it 
 illegal 166 
 
 where a man purchases in the name of a stranger, the evi- 
 dence to rebut the resulting trust lies on the nominal pur- 
 chaser ii. 138 
 contra, where the purchase is in the name of a child ii. 141 
 principal is a good witness to prove the perjury of his agent, 
 
 Mhere ii. 139 
 
 agent not a good witness against the principal ii- 298 
 
 what is sufficient evidence of notice in equity ib. 
 
 See Witness. 
 EXECUTION. See Judgments. 
 EXECUTOR, 
 
 cannot mortgage the assets for hi^ private debt ii. 64
 
 448 INDEX. 
 
 Page 
 
 EXECUTOR— coniinned. 
 
 his receipt is a discharge for the purchase-money of lease- 
 hold estates ii. 51 
 estates bought by an executor with the assets, cannot be 
 followed, unless the trust appear on the deed, or the ap- 
 plication of the money is clearly proved ii. 148 
 See Purchase-Money. 
 EXPENSES, 
 
 of investigating a title, &c. may be recovered where the 
 
 vendor cannot make a title 238 
 
 of the conveyance fall on the purchaser, who prepares it 450 
 attending the execution of the conveyance, always borne 
 by the vendor ib. 
 
 but not the costs of the purchaser's attorney ib. 
 
 FALSE DESCRIPTION. See Fraud. Value. 
 FATHER AND CHILD. See Advancement. 
 FELONS, 
 
 can purchase, but not hold ii. 106 
 
 See Terms of Years. 
 FEME COVERT, 
 
 can only purchase sub modo ii. 107 
 
 unless authorized by her husband ib. 
 
 is answerable in equity for a fraud ii. 262 
 
 FINES, 
 
 abolished by stat. 3 & 4 Will. 4, c. 74 380. ii. 273 
 
 terms of years barred by, where 453 
 
 See Copyholds. Dower. Power. Title. 
 FIRE, 
 
 loss by, after the contract, must be borne by the purchaser 277 
 contra, where the estate is sold before a master, and 
 the report is not absolutely confirmed 278 
 
 FIXTURES, 
 
 purchaser where entitled to 38 
 
 FRAUD, 
 
 if persons, having a right to an estate, encourage a pur- 
 chaser to buy it, they will be bound by the sale ii. 262 
 if even a stranger make a false representation to a purcha- 
 ser of value, &c. an action will lie against him 5 
 mere suspicion of, will not enable a purchaser to reject the 
 
 title 352 
 
 in a written agreement relieved against, according to parol 
 evidence 169
 
 INDEX. 449 
 
 FRAUD — continved. 
 
 See Concealment. Dower. Evidence. 
 Incumbrances. Statute of Frauds. 
 FRAUDULENT CONVEYANCE, 
 
 settlement with general power of revocation, void against a 
 purchaser ii. 180 
 
 See Voluntary Conveyance. 
 GOODS. See Leasehold Estates. 
 
 GRANDFATHER AND GRANDCHILD. See Advancement. 
 GUARDIAN, 
 
 cannot purchase his ward's estate on his coming of age, 
 serable ii. 116 
 
 HEIR, 
 
 relieved against a sale, for an inadequate consideration 263 
 
 HEIR AT LAW, 
 
 bound by his ancestor's contraot, although he die before 
 the time limited for completing it 171 
 
 unless the devisee permit the heir to take the estate for 
 a long time 177 
 
 what should be attended to in purchasing an estate of an 
 heir at law, conveyed or surrendered to his ancestor 
 after his will 1S2 
 
 will be entitled to lands contracted for by his ancestor, 
 
 where 179. 189 
 
 wrongfully applying the personal estate in paying the 
 purchase-money, gives the persons entitled a charge on 
 the land ISO, 181 
 
 may be put to his election, although the testator had not 
 
 the estates at the time of his will 181 
 
 whether an infant heir at law was a trustee within the 
 7 Anne for a purchaser, under a contract by the an- 
 cestor ^f^ 
 alteration of the law by 1 Will. 4, c. 60 ib. 
 purchaser will be compelled to take a title, although a will 
 is not proved against the heir at law 369, 370 
 See Agreements. 
 HUSBAND AND WIFE. See Bakon and Feme. 
 IDIOTS, 
 
 can only purchase sub modo "• 1^' 
 
 IMPROVEMENTS, 
 
 purchaser will be relieved in respect thereof, m what 
 
 ii. 266, 267 
 cases ' 
 
 INADEQUATE CONSIDERATION. See Consideration. 
 
 VOL. II. ^'^
 
 460 INDEX. 
 
 Page 
 
 INCLQSURE, 
 
 title under an, before the award 342 
 
 commissioners cannot purchase until five years after the 
 award ii. 110 n. 
 
 INCUMBRANCES, 
 
 should be disclosed to a purchaser 6 
 
 a person having an incumbrance, and denying it to a pur- 
 chaser, will be relieved against 9. ii. 263 
 a person having an incumbrance is not bound to give notice 
 
 of it to a purchaser ib. 
 
 purchaser will be relieved against dormant incumbrances ii. 261 
 judgments should be searched for on behalf of a purchaser 539 
 although the estate is leasehold 647 
 
 purchaser will be bound by judgments of which he has 
 notice, although the vendor has only an equity- of redemp- 
 tion , 541 
 qu. where the seller has only a trust estate 543 
 but where the estate is in trustees for sale, whose re- 
 ceipt is a discharge, he may pay to them 544 
 purchaser will be relieved against, where 553 
 need not be searched for, in what cases 541. 549 
 where the estate is in a register county, the register should 
 
 be searched 549 
 
 register need not be searched, in what cases 650 
 
 if the estate is leasehold, the register, and also the proper 
 
 courts, should be searched for judgments 551 
 
 annuities should be searched for ib. 
 
 solicitor is personally responsible, if he neglect to search 
 
 for incumbrances 552 
 
 officers neglecting to enter up judgments, &c. are liable to 
 
 a purchaser sutlering by the neglect ib. 
 
 purchaser may retain or recover purchase-money in respect 
 of incumbrances, or defects in the title, where, and 
 where not 653. 564 
 
 purchaser buying up incumbrances, can, as against the 
 
 vendor, only charge what he actually paid 567 
 
 where two persons purchase an incumbered estate, and an 
 allowance is made to one, it enures to both ii. 130 
 
 See Attorney. Purchaser. Purchase 
 Money. Vendor. 
 INDEMNITY, 
 
 to a purchaser will not weaken his title in equity ii. 260
 
 INDEX. 451 
 
 INDEMNITY— continued. ^^^ 
 
 vendor or purchaser will be compelled to give or accept an 
 
 indemnity, in what cases 251. 288. 304. 344 
 
 an agreement to give a real security, as an indemnity, must 
 be specifically performed 251 
 
 IJVFANTS, 
 
 can only purchase sub modo ii. 107 
 
 are answerable in equity for a fraud ii. 262 
 
 See Heir at Law. Uower. 
 INJUNCTION, 
 
 in what cases granted 216, 217 
 
 will not be dissolved without the Master's report on title, 
 where the action is for want of title 232, 233 
 
 INSOLVENCY, 
 
 loss by the insolvency of the auctioneer falls on the seller, 
 
 semble 48 
 
 what is ii. 188 
 
 INTEREST, 
 
 must be paid by a purchaser from the time the contract 
 ought to be completed ii. 1 
 
 unless the money has lain dead, and the purchaser 
 gave the vendor notice of the fact, and the delay 
 be occasioned by the vendor ii. 2 
 
 where a purchaser takes possession and agrees to pay inte- 
 rest, he may rescind the agreement, if it appear that a 
 long time must elapse before a title can be made, unless 
 he acquiesce in the delay ii. 5 
 
 is not to be paid by a purchaser after the conveyance is 
 
 delivered to the vendor's attorney for execution ii. 7 
 
 on timber, runs only from the valuation ii. 8 
 
 must be paid by a purchaser of a reversion, from what 
 
 time ii. 18 
 
 must be paid by a purchaser of a leasehold estate, although 
 he has not received the rents, and the vendor must pay a 
 
 rent for the estate ii. 9 
 
 must be paid in respect of a sum deposited with a purchas- 
 er to pay off incumbrances ii. 13 
 an agreement to pay interest, although signed by the vendor 
 
 only, will bind, where ii. 9 
 
 a purchaser never pays interest on the deposit ii. 13 
 
 can be recovered by a purchaser on a deposit paid either 
 
 to a principal, or to an auctioneer 238. ii. 16 
 
 is not recoverable against an auctioneer, unless under par- 
 ticular circumstances •'• 1-1
 
 452 INDEX. 
 
 INTEREST— eon /m?/e(/. 
 
 if recovered against an auctioneer he may recover it from 
 
 the vendor ii. 1 6 
 
 whether it can be recovered in an action for money had and 
 
 received, qu. 238, 239 
 
 must be paid by a vendor where he cannot make a title, if 
 the purchase-money has lain dead ii. 16 
 
 so by a person opening biddings ii. 18 
 
 must be allowed to a trustee where a purchase by him of 
 
 trust property is set aside ii. 19 
 
 an agreement by a purchaser to pay a rent exceeding legal 
 
 interest is not usurious, where ib. 
 
 what rate of interest is payable ii. 20, 21 
 
 in what cases payable under the stat. 3 & 4 W. 4, c. 42 ii. 18 
 See Lessee. 
 JOINT PURCHASERS, 
 
 their rights and liabilities ii. 127 
 
 JOINT TENANCY. See Agreements. 
 JOINTURE. See Dower. 
 JUDGMENTS, 
 
 should be searched for 539 
 
 entered up after the purchase-money is paid will not bind in 
 
 equity ib. 
 
 against bankrupts are reduced to a level with simple con- 
 tract debts, in what cases ii. 196 
 bind an equity of redemption in the hands of a purchaser 
 with notice 542 
 qu. as to trust estate 642, 543 
 bind after-purchased estates 547 
 do not bind leasehold estates till when 547. ii. 198 
 do not affect an equity of redemption of a term 548 
 do not bind real estates until entered and docketed ii. 193 
 cannot be docketed after the time appointed by the act ii. 194 
 in what cases they bind purchasers although not duly 
 
 docketed ii. 195 
 
 may be defeated by a purchaser without notice, who has a 
 
 prior legal estate 541 
 
 where a purchaser shall have contribution in respect of 
 . execution 548 
 
 See Incumbrances. Notice. Register. 
 LACHES. See Time. Trustees. 
 LAND TAX, 
 
 of protection from defects in sales for redemption of land 
 tax ii. 249
 
 INDEX. 453 
 
 LEASE, *'*"° 
 
 misrepresented, purchaser will be entitled to compensation, 
 
 in what cases 289, 290. 
 
 what is notice of, to a purchaser ii. 291 
 
 should be seen by a purchaser before he completes ib. 
 
 underlease will not be decreed under an agreement to 
 
 assign 289, 290 
 
 agreement to grant a, where binding on a purchaser, 
 
 ii. 269, 270 
 See Assignees of Bankrupts. Covenants. 
 Purchasers. Register. Terms 
 FOR Years. 
 LEASEHOLD ESTATES, 
 
 renewable, what is a sufficient title to 338 
 
 where assignments of, will be presumed ib. 
 
 may pass in a will under the word " goods" ii. 202 
 
 but cannot pass in an assignment under that word ib. n. 
 See Incumbrances. Interests. Judgments. 
 Purchaser. Title. Vendor. 
 LEGATEE. See Marshalling. 
 LESSEE, 
 
 purchasing, the tenantcy is determined 173 
 
 on conveyance of the inheritance, the covenants between 
 
 him and the lessor are determined 176 
 
 with an option to purchase, rent ceases upon declaring the 
 
 option, and interest runs ii. 110 
 
 his possession is notice of his title ii. 292 
 
 but not of the lessor's title ii, 293 
 
 LETTERS, 
 
 are agreements within the statute of frauds, where 87. 89 
 
 LIEN, 
 
 whether any exist for money received by vendor who 
 is entitled to retain the estate by the death of the pur- 
 chaser without heirs 284 
 purchaser has a lien on the estate for money paid, if vendor 
 
 cannot make a title ii. 57 
 
 purchaser has not a lien on the purchase-money, in respect 
 of a concealed incumbrance, afler the money is appro- 
 priated by the vendor 665 
 vendor has a lien on the estate for purchase money un- 
 paid ii. 57 
 even where the agreement provides for the security 
 of the purchase money during the purchaser's life ii. 57
 
 464 INDEX. 
 
 Page 
 
 LIEN — conlinued. 
 
 unless he be a papist incapable of purchasing ii. 69 
 
 or take a distinct security for the money ib. 
 
 a bond, and a mortgage of part of the estate exclude 
 the lien over the rest of the estate ii. 61 
 
 but taking a bond or note will not discharge the 
 lien ib. 
 
 the lien extends to whom ii. 67 
 
 prevails against whom ii. 74 
 
 semble, that it cannot prevail against an equitable 
 mortgage by deposit of title-deeds ii. 76 
 
 LIMITATION OF TIME. See Statute of Limitations. 
 LIS PENDENS, 
 
 the effect of it ii. 223. 281, 282, 283 
 
 See Notice. 
 LOTS, 
 
 estates sold in, a distinct contract arises upon each 293 
 
 purchaser of several lots will be compelled to take those 
 to which a title can be made, in what cases 29 1 
 
 See Stamps. 
 LUNATICS, 
 
 can only purchase sub modo ii. 107 
 
 See Agreements. 
 MARRIAGE CONSIDERATION, 
 
 valuable ii. 161, 162 
 
 whether it extends to collaterals ii. 162 
 
 MARSHALLING, 
 
 the vendor's lien, and the personal estate of the purchaser, 
 will be marshalled in favor of a legatee, where and where 
 not ii. 69, 70 
 
 assets marshalled against the devisee in favor of simple 
 contract creditors ii. 73 
 
 MASTER IN CHANCERY. See Reference. Sales before 
 
 A Master. 
 MEMORIAL, 
 
 of deeds to be registered must be executed in the presence 
 
 of what witnesses ii. 206 
 
 deeds cannot be re-executed for the purpose of registry, 
 
 semble ii, 207 
 
 sealed by a corporation is equivalent to signing and seal- 
 ing ii. 208 
 should contain what ib.
 
 INDEX. 455 
 
 Pafe 
 
 MEMORIAL — continued. 
 
 of giants of life annuities App. No. 12. ii. 326 
 
 See Register. 
 MERGER, 
 
 of terms for years in the tee 460 
 
 MISREPRESENTATION. See Concealment. 
 
 compensation given to purchasers, where 37. .564 
 
 MISTAKE, 
 
 if a person buy his own estate he will be relieved 253 
 
 a defence against a specific performance 138 
 
 in written instruments corrected by equity according to pa- 
 rol evidence, where and where not 158 
 not to the prejudice of a purchaser without notice 170 
 of parties to a conveyance of their rights will not affect a 
 
 purchaser ii. 262 
 
 condition that mistakes shall not affect the sale, will only 
 
 cover unintentional errors 41, 42 
 
 mutual, equity will not assist either party 205 
 
 agreement will be presumed to be executed under a mis- 
 take where the purchaser knew the seller could not make 
 a title 305 
 
 of the seller as to the operation of his purchase, no bar to a 
 
 specific performance 308 
 
 of a party of the legal construction of words, immaterial 309 
 See Evidence. Sales before a Master. 
 Title. Will. 
 MORTGAGE, 
 
 purchaser of an estate in mortgage makes his personal 
 estate the primary fund for payment of it, where 188 
 
 so joint purchasers, where ii. 130, 131 
 
 purchaser must indemnify the vendor against the mortgage 
 
 money 251 
 
 proceedings in ejectment will not be stopped, where mort- 
 gagee has agreed to purchase the estate 252 
 equitable mortgage will prevail over a lien for purchase 
 
 money, semble ii. 75, 76 
 
 deposit of title-deeds, by a simple contract debtor of the 
 
 crown, binds the crown as an equitable mortgage ii. 76 
 
 purchaser of an equity of redemption should give notice of 
 
 the sale to the mortgagee ii- 220, 221 
 
 purchaser of a mortgage should not buy without the privity 
 of the mortgagor ib«
 
 456 INDEX. 
 
 P.age 
 
 MORTGAGE— coH/m«e(/. 
 
 purchase will be deemed a mortgage, where 255 
 
 power of sale in a mortgage without the assent of the mort- 
 gagor, is valid 357, 358 
 possession without title will not give a right to redeem 396 
 mortgagee may purchase from the mortgagor ii. Ill 
 See Auction Duty. 
 NE EXEAT REGNO, 
 
 lies against a purchaser for purchase-money unpaid, where, 249 
 NOTICE, 
 
 of an act of bankruptcy deprives a purchaser of the benefit 
 of the statute of James ii. 186 
 
 what is not notice of an act of bankruptcy ii, 187 
 
 of a judgment not duly docketed binds a purchaser ib. 
 
 so of deeds not duly registered ii. 221 
 
 but notice of an unregistered deed is unimportant at 
 law ii. 223 
 
 purchaser with notice is bound in the same manner as the 
 person was of whom he purchased ii. 268 
 
 unless his consent was necessary to the validity of the 
 
 incumbrance ii. 269 
 
 and a fine and non-claim will not improve his title, ii. 272 
 
 unless it is a mere legal title ii, 273 
 
 to be binding must be had, when ii. 274 
 
 purchaser without notice is not affected by notice in his 
 
 vendor ib. 
 
 purchaser with notice will not be affected if his vendor 
 
 bought without notice ib. 
 
 not material, as to notice, that the purchase was made 
 
 under the direction of the court ii. 278, 279 
 
 infants are bound by ib. 
 
 is either actual or constructive ii. 276 
 
 actual will not bind unless given by a person interested 
 
 in the property during the treaty ib. 
 
 what is constructive notice : 
 
 notice to the counsel, agent, &c. of the purchaser ii. 278 
 
 but it must be in the same transaction ii. 279 
 
 a public act of parliament ii. 280 
 
 lis pendens ii, 281 
 
 but not for the purpose of postponing a registered 
 
 deed ib. 
 
 what is not a sufficient lis pendens ib.
 
 I 
 
 INDEX. 457 
 
 Page 
 
 NOTICE— continued. 
 
 registration of deeds where the purchaser is not seis- 
 ed of the legal estate before the purchase, qu. ii. 285 
 whatever is sufficient to put a purchaser upon in- 
 quiry, as possession by a tenant, description in 
 a deed, &c. ii. 290 
 
 when the possession is vacant, notice not implied, ii. 291 
 so notice of a judgment held notice of an equitable 
 mortgage ii. 292 
 
 what is not constructive notice : 
 
 a private act of parliament ii. 280 
 
 a public act of a private nature, semble ib. 
 
 decrees of equity ii. 283 
 
 unless they are decrees to account ii. 285 
 
 an act of bankruptcy ii. 286 
 
 unless the purchaser claim the benefit of 46 
 Geo. 3 ii. 186, 187 
 
 a commission of bankruptcy ii. 286. 290 
 
 unless the purchaser claim the benefit of 46 
 Geo. 3 ii. 186, 187 
 
 docketing of judgments ii. 285 
 
 registration of deeds, where the purchaser is seised 
 
 of the legal estate before the purchase 
 the vendor being out of possession 
 mere suspicion of fraud 
 the contents of court rolls 
 witnessing of deeds 
 equitable construction of words 
 what is sufficient evidence of notice 
 how denial of notice should be pleaded 
 
 See Judgments. Register. 
 Conveyance. 
 OPINION. 
 
 on abstract, to whom it belongs 448 
 
 of counsel approving the title, no waver of reasonable ob- 
 jections on the part of the person consulting him 330 
 OPTION, 
 
 to purchase, its effect 167, 188 
 
 PAPISTS, 
 
 who have not taken the proper oaths can only purchase sub 
 modo "• lOS 
 
 but protestants may safely purchase of such papists, in 
 whit cases »• 241. 244 
 
 VOL. Al. 68 
 
 e 
 
 
 ib. 
 
 
 ii. 
 
 293 
 
 
 ii. 
 
 295 
 
 
 ii. 
 
 296 
 ib. 
 
 
 ii. 
 
 298 
 ib. 
 
 
 ii. 
 
 307 
 
 VOLUN 
 
 TART 

 
 4£8 INDEX. 
 
 Page 
 
 VAVISTS— continued. 
 
 See Advancement. Lien. 
 PARISHIONERS, 
 
 cannot purchase ii. 105 
 
 PARLIAMENT, ACT OF. See Notice. 
 PAROL AGREEMENT, 
 
 for a lease will bind a purchaser, where ii. 269 
 
 See Evidence. Statute of Frauds. 
 PART PERFORMANCE. See Statute of Frauds. 
 PARTIAL EXECUTION OF A CONTRACT, 
 
 where it will be enforced 2S7. 301 
 
 PARTICULARS OF SALE. See Auctioneer. Conditions 
 
 OF Sale. Statute of Frauds. 
 PENALTY. See Action. Agreements. 
 PERFORMANCE, 
 
 of an agreement to purchase and settle an estate ii. 160 
 
 PERJURY, 
 
 if a defendant deny a parol agreement, he may be tried for 
 
 perjury 114 
 
 and the plaintiff is a competent witness to prove the perjury, ib> 
 PLEADING. See Purchase. 
 POLICY OF ASSURANCE, 
 
 on a life sold by auction, when after purchase completed 
 the purchaser could not recover damages for fraud 255 
 
 POSSESSION, 
 
 the taking of, may be considered as a waver of objections 10 
 delivery of, in general a part performance of a parol agree- 
 ment US 
 delivered to a purchaser, the effect of it 249 
 may be determined ib. 
 where possession was delivered, but the fact of purchase 
 was disputed, an issue was directed 131 
 See Purchaser. 
 POWER, 
 
 reserved by purchaser, to appoint purchase-money, it is 
 
 still assets 172 173 
 
 a power to re-purchase given upon condition, cannot be 
 
 enforced unless the condition has been complied with 256 
 where a party, under a power given by an act of parliament, 
 gives notice to purchase, he cannot withdraw from it, but 
 must take the estate j^,^ 
 
 general power of revocation in a settlement makes • it void 
 against a purchaser ji 179 
 
 although the power is only conditional * ib.
 
 INDEX. 459 
 
 Paee 
 VO\YER—con(inued. 
 
 unless the condition be bond fide 179 
 
 or although the time of revocation has not arrived ii. 180 
 the power has been released ib. 
 
 See Mortgage. 
 purchaser will be relieve against a defective execution of 
 a power ii. 261 
 
 unless the sale was not within the compass of the, power ib. 
 POWER OF ATTORNEY, 
 
 given for valuable consideration cannot be revoked 451 
 
 PRE-EMPTION, 
 
 right of ■ 187, n. 
 
 PRETENDED TITLE, 
 
 a sale by a person entitled under an agreement before an 
 actual conveyance to him, is not within the statute 32 
 Hen. 8, c. 9 560, 561 
 
 PRAEMUNIRE, 
 
 persons guilty of this ofience can purchase, but not hold, ii. 106 
 PRESUMPTION, 
 
 legal estate will be presumed to have been conveyed, 
 where 338. 360 
 
 PRINTED NAME, 
 
 a sufficient signature within the statute of frauds 100 
 
 PROFITS. See Rents. 
 PROTECTOR, 
 
 of settlements, &c. under stat. 3 & 4 Will. 4, c. 74 382 
 
 PUFFER. See Bidding. 
 PURCHASE, 
 
 how it should be pleaded ii- 303 
 
 for a valuable consideration, is a protection, in equity, 
 against legal as well as equitable estates, semble, ii. 308, 309 
 PURCHASER, 
 
 who cannot be ii- 106 
 
 cannot be relieved in respect of patent defects in an estate, 307 
 but otherwise of latent defects of which the vendor 
 was aware 2. 313 
 
 should not trust to any statements of the vendor respect- 
 ing value 3 
 but may rely on a statement as to rent 4 
 should not employ the vendor's attorney 7 
 should not take possession of the estate where the title is 
 doubtful ^^ 
 but may take possession when contract is entered into 1 1
 
 460 I N D KX. 
 
 Page 
 
 PURCHASER— conimfiecZ. 
 
 where a purchaser in possession of the estate will be or- 
 dered to pay his purchase-inoney into co\irt, and where 
 not 22i5 
 
 entitled to recover his deposit with interest, and the ex - 
 penses of investigating the title, where 239 
 
 does not become tenant to the seller upon being let into 
 possession 249 
 
 such possession may be determined ib. 
 
 is not bound to acquaint a vendor with any latent advan- 
 tage in the estate 6 
 
 may misrepresent the seller's chance of sale ib. 
 
 having notice of a lease should see the covenants 9. ii. 291 
 
 what inquiry should be made, where an equitable right, 
 not in possession, is purchased 11 
 
 of a leasehold estate, must indemnify the vendor against 
 the rent, &c. 38. 261 
 
 not where the assignees of a bankrupt are vendors 38 
 
 entering into possession, even with consent of the parties 
 in a cause, will be compelled to pay the money into 
 court 62 
 
 of an equity of redemption must indemnify the vendor 
 against the mortgage-money 251 
 
 selhng before actual conveyance entitled to indemnity 
 from sub-purchaser against costs of proceedings for his 
 benefit ib. 
 
 may sell or devise an estate contracted for before the 
 conveyance 173 
 
 must bear any loss happening to the estate by fire or 
 otherwise, before the conveyance, and is entitled to any 
 benefit accruing to it in the interim ib. 
 
 will be compelled to take a part of the estate, where 287. 299 
 
 , of two-sevenths of an estate allowed to rescind the con- 
 tract, the title to one proving bad 297 
 
 may insist upon a part performance, where 301 
 
 will be relieved in respect of a defect in .the quality or 
 quantity of the estate, where and where not 307. 317 
 
 buying an interest which did not exist, relieved 254 
 
 may insist that the vendor's title shall be sifted 218 
 
 length of title a purchaser may require 329 
 
 of a policy of assurance not entitled to recover damages 
 for fraud, where 255 
 
 under a power given by act of parliament, cannot withdraw, 
 after notice-, where 256
 
 INDEX. 461 
 
 • Paue 
 
 PURCHASER— co7i/tViMed. 
 
 is entitled to what relief under covenants for title ii. 102 
 
 of an heir at law or devisee not bound by specialty debts 
 
 of the ancestor or testator ii. 31, n. 
 
 joint-purchasers will in equity take as tenants in common, 
 
 where ii. 127. 130 
 
 where two persons purchase an estate, and one pays the 
 money, he can only file a bill against the other for a con- 
 tribution ii. 131 
 a purchase by two in the name of one, the trust may be 
 
 proved, how ii. 132 
 
 parol agreement by two, and the conveyance taken in the 
 name of one, is taken out of the statute of frauds, 
 where >b. 
 
 taking a conveyance in the name of a stranger, the trust re- 
 sults to him ii. 134 
 taking a conveyance in the name of his child is an advance- 
 ment »<• 140 
 without notice of an act of bankruptcy will not be affect- 
 ed by any commission of bankruptcy unless issued, 
 when "• 184. 187, 188 
 buying an equity of redemption should immediately give 
 notice to the mortgagee ii- 220 
 and should declare whether his personal estate shall or 
 shall not as between his representatives be the pri- 
 mary fund for payment of the mortgage 188 
 will be relieved and protected in equity, in what cases, ii. 258 
 paying off prior incumbrances lets in a subsequent one of 
 which he had notice "• 267 
 See Action. Agent. Advancement. Agree- 
 ment. Attested Copies. Auctioneer. 
 Bidding. Charitable Uses. Chose in 
 Action. Conveyance. Consideration. 
 Covenants. Deposit. Devise. Fraud. 
 Improvements. Incumbrances. Judg- 
 ments. Lessee. Mistake. Mortgage. 
 Ne Exeat Regno. Notice. Papists. 
 Power. Purchase Money. Register. 
 Recoveries. Resulting Trust. Re- 
 version. Sales before a Master. 
 Terms of Years. Time. Title. Trus- 
 tees. Voluntary Conveyance.
 
 462 INDEX. 
 
 Page 
 
 PURCHASE MONEY, 
 
 a deposit is part payment of 49 
 
 payment of, is not a part performance of a parol agreement, 
 semble 118. 124 
 
 secured by a purchaser at a day certain, must be paid, al- 
 though the seller break his agreement 246, 246 
 
 purchaser is a trustee of, for the vendor, from the time of 
 the contract 171 
 
 is always assets of the vendor 172 
 
 may be required to be paid into court, if the purchaser is 
 in possession 62 
 
 where a purchaser in possession of the estate will, upon 
 motion, be ordered to pay his purchase-money into court, 
 and where not 226 
 
 where purchase-money is large, a long day will be al- 
 lowed 228 
 
 under proper circumstances the time will be enlarged ib. 
 
 may be retained or recovered by a purchaser in respect of 
 incumbrances or defects in the title, where, and where 
 not 653, 664 
 
 purchaser has no lien on it, after it is appropriated, even 
 in case of fraud 565 
 
 paid to a creditor having two securities, shall be taken in 
 satisfaction of the security affecting the estate 566 
 
 equity in favor of creditors will prevent payntient of pur- 
 chase money to an heir or devisee ii. 31, n. 
 
 and in favor of simple contract creditors under 47 G. 3, 
 and under 3 & 4 Will. 4, c. 104 ib. 
 
 purchaser must see to the application of purchase-money 
 of r^al estates 
 where the trust is for payment of specified debts or le- 
 gacies ii. 32, 33, 34 
 the debts are ascertained by a decree ii. 34 
 
 is not bound to do so, 
 
 where the first or only trust is for payment of debts 
 
 generally ii. 33 
 
 the cestuis que trust are infants or unborn ii. 34 
 
 the cestuis que trust are abroad, semble ii. 44, 45 
 
 the trusts require time and discretion ii. 36 
 
 is not bound to ascertain the deficiency, although the trust 
 be for payment of such debts as the personal estate 
 
 shall be insufficient to pay ii. 47 
 
 but he is bound to do so where only a power is given, ii. 48 
 is equally bound, although there is onJy a charge of
 
 INDEX. 4G3 
 
 PURCHASE MOlSlEY—contimteiL ^''^^ 
 
 debts, &c. il 37, 38. 
 
 may be discharged from seeing to the application, how, ii. 49 
 
 the receipts of what trustees will be discharges ii. 60 
 
 new trustees appointed by the court have the same power 
 
 to give receipts as the original trustees had ii. 51 
 
 purchaser of leasehold estates not bound to see to the appli- 
 cation of the money ii. 52 
 unless there be fraud, Sic. ii. 55 
 vendor's lien on the estate sold for the purchase-money, if 
 
 not paid, what ii. 67 
 
 how payment of should be pleaded ii. 305 
 
 See Agent. Lien. 
 QUALITY OF AN ESTATE, 
 
 false description of 307 
 
 QUANTITY OF AN ESTATE, 
 
 false description of 318 
 
 RECEIPTS FOR PURCHASE MONEY, 
 
 are agreements within the statute of frauds, where 87 
 
 by trustees are discharges, where ii. 35 
 
 are conclusive, where ii. 62 
 
 RECOVERIES, 
 
 equitable, good, although the equitable tenant to the pre- 
 cipe has the legal estate for life 375 
 purchaser may after twenty years produce the deed, making 
 a tenant to the proecipe, as evidence that a recovery was 
 duly suffered, although no record can be found thereof, ii. 245 
 where a purchaser is entitled to a recovery 355, 356 
 abolished by stat. 3 c: 4 Will. 4, c. 74 380. ii. 246 
 See Fines. 
 REFERENCE TO A MASTER, 
 
 as to the title 217, 218 
 
 general practice in making inquiries under 224 
 
 REGISTER, 
 
 title deeds should be registered before a purchaser completes, 549 
 what need not be registered ib. 
 
 what cannot be registered ii, 211. 217 
 
 semble, that writs of execution on judgments intended to 
 
 affect leasehold estates need not be registered 551 
 
 effect of registry and non-registry of wills within the period 
 
 prescribed by the acts ii. 204 
 
 of the execution, contents, &c. of the memorial ii. 209 
 
 deeds should be registered immediately after their execu- 
 tion 462
 
 464 I N n E X. 
 
 Pa;;c 
 
 REGISTER— conthiued. 
 
 deeds, &c. are void against a purchaser unless registered ii. 204 
 deed of appointment under a power must be registered ii. 211 
 registry of an assignment which recites a lease is not a 
 
 sufficient registry of the lease ib. 
 
 of the exceptions in the acts ii. 217 
 
 registry of deeds is not notice to a person seised of the 
 legal estate ii. 221 
 
 but it is notice to a person not seised of the legal 
 estate, semble ii. 222 
 
 - purchaser buying with notice of a prior incumbrance not 
 
 registered will be bound by it ii. 223 
 
 observations on a general register ii. 224 
 
 See Incumbrances. Memorial. Notice. 
 RELEASE, 
 
 acceptance of, no admission of right ii. 273 
 
 RENTS, 
 
 purchaser entitled to, from what time 61, 62. ii. I 
 
 may be recovered by a purchaser, where 252 
 
 REPAIRS. See Advancement. Improvement. 
 REPUBLICATION, 
 
 of a will, what amounts to 181 
 
 RESULTING TRUST, 
 
 purchaser taking a conveyance in the name of a stranger, 
 
 a trust results ii. 134, 135 
 
 but even a parol declaration will prevent a resulting 
 trust ii. 138 
 
 See Advancement. Evidence. 
 REVERSION, 
 
 qu. if a bill will lie against a purchaser of a reversion to 
 perpetuate testimony ii. 26S 
 
 See Time. Title. 
 REVOCATION, POWER OF. See Power. 
 ROMAN CATHOLICS. See Papists. 
 SALES BEFORE A MASTER, 
 
 the advertisements are prepared, by whom 55 
 
 conducted, how 56 
 
 in a proper case the court will order a bidding to be 
 
 reserved 55 
 
 if the purchaser resell at a profit behind the back of the 
 court, the second purchaser must pay the additional 
 price into court for the benefit of the estate 67
 
 I 
 
 INDEX. 466 
 
 SALES BEFORE A MASTER— con/intied. **'^' 
 
 the purchaser must procure a report of his being the best 
 
 bidder gg 
 
 is entitled to a conveyance, when 61 
 
 the conveyance to be drawn, by whom 62 
 
 biddings will be opened, where 65, 66. 69 
 
 practice with respect to opening biddings 69 
 
 purchaser will be compelled to complete, when 60 
 
 will be discharged, upon what terms 67 
 
 will not be hurt by any irregularity in a decree ib. 
 
 may abandon the contract, and forfeit his deposit, 
 
 where 71 
 
 may be discharged from his contract, where he has, 
 by mistake, given an unreasonable price for the 
 estate ib, 
 
 purchaser is entitled to possession, from what time 61 
 
 purchaser dying before the absolute confirmation of the 
 
 report, the court will order a conveyance to his devisees 64 
 joint purchasers must pay their money together 61 
 
 incumbrance not appearing upon the report may be paid 
 
 oft', when 61 
 
 estate directed to be sold before a master cannot be sold 
 
 otherwise 64 
 
 are not within the statute of frauds ib. 
 
 although an agent's authority could not be proved, un- 
 less there be fraud 65 
 See Auction. Fire. Interest. Title. 
 SELLER. See Vendor. 
 
 SIGNATURE. See Corporation. Statute of Frauds. 
 SLANDER OF TITLE. ii. 277 
 
 SOLICITOR. See Attorney. 
 SPECIFIC PERFORMANCE. See Agreements. 
 STAMPS, 
 
 either party may obtain the agreement from the other to 
 stamp it 241 
 
 STATUTE OF FRAUDS, 
 
 no action can be brought upon any contract for sale of 
 lands unless in writing, and signed by the person to be 
 charged 74 
 
 whether a licence is within the act 79 
 
 agreement by tenant, in consideration of improvements by 
 landlord, to pay an additional sum per annum, is not 
 within the statute 81 
 
 VOL. II. 69
 
 466 INDEX. 
 
 Page 
 
 STATUTE OF FRAJJDS—eontinued. 
 
 an agreement for an assignment is within the act ib. 
 
 so is a sale of a standing crop- of grass 82 
 
 but timber growing upon the land is not ib. 
 
 nor potatoes in the ground to be taken immediately 83 
 
 want of the signature to the agreement of the parly seeking 
 
 to enforce it, fraud, where 85 
 
 agreement void as to part is void in toto 84 
 
 the signature of the party to be charged is sufficient 85 
 
 . a letter or receipt is a sufficient writing 87 
 
 but it must be stamped ib. 
 
 and prove the agreement set up 94 
 
 and it must specify all the terms 89 
 
 for the most trifling omission will be fatal 91 
 
 but if it refers to a writing which contains the 
 whole agueement, although not signed, that is 
 sufficient 92 
 
 whether an entry by an auctioneer in his books will do 94 
 
 a letter written to a third person, containing directions to 
 
 execute the agreement, will do 95 
 
 rent rolls, &c. will not be deemed an agreement although 
 
 signed 96 
 
 the sending a sufficient agreement as instruction to prepare 
 
 a technical agreement is immaterial 98 
 
 what is a sufficient signature 99. 102 
 
 agent may be authorized to contract by parol 103 
 
 but his clerk cannot act without a special authority 104 
 
 an auctioneer is an agent for both parties within the 
 
 statute 105 
 
 sales by auction of estates are within the statute 109 
 
 contra of goods, semble ib. 
 
 sales before a master not within the statute ib. 
 
 or under the authority of the court ib. 
 
 or where the agreement is confessed by the answer, 110, 
 
 111 
 unless the defendant plead the statute 112 
 
 which he cannot do by an answer to an amended 
 bill, where he has admitted the agreement by 
 his original answer 114 
 
 sales not within the statute where it would protect fraud, as 
 where the agreement is express to reduce the con- 
 tract into writing, and it is prevented by fraud 1 14 
 or an agreement partly performed 116
 
 INDEX. 467 
 
 Pae« 
 
 STATUTE OF FRAUDS— continued. 
 
 delivery of possession is in general a part per- 
 formance 116 
 whether where two are in treaty for an estate, and 
 one desists, qu. ii« 132 
 t but ancillary acts are not 115 
 where the payment of additional rent by tenant in 
 possession, or expending money by him on the 
 estate, will take an agreement for renewal out of 
 the statute 117 
 acts done to the defendant's own prejudice not part 
 
 performance 125 
 
 nor payment of purchase-money, semble 1 18 
 
 auction duty 125 
 
 part performance as to one lot does not extend to 
 
 other lots sold under distinct particulars ib. 
 
 where the agreement is in part performed, the court 
 will endeavor to ascertain the terms 125, 126. 130 
 
 resulting trusts are exempted out of the statute ii. 134, 135 
 
 the statute only extends to clear and simple trusts for the 
 benefit of the debtor 544 
 
 See Advancement. Agent. Auction. Evi- 
 dence. Fines. Perjury. Printed Name. 
 Purchaser. Resulting Trust. Sales 
 before a Master. 
 STATUTES OF LIMITATIONS, 
 
 their operation and effect 388. 397. 412. 415 
 
 STEWARD. See Agent. 
 STEWARD OF A MANOR, 
 
 appointed for life, is not aft'ected by a sale of the manor 256 
 STOCK, 
 
 purchaser of life interest in, entitled to the first dividend 
 that falls due 62 
 
 STYLE, NEW. See Time. 
 SURPRISE. See Agreements. Evidence. 
 SURRENDER, 
 
 purchaser not compellable to take a surrender of copy- 
 holds by attorney 460, 461 
 TENANT FOR LIFE, 
 
 may purchase the settled estates, although his consent is 
 required to the sale, semble "• ^^^ 
 
 See Power.
 
 468 INDEX. 
 
 Page 
 
 TENANT IN TAIL. See AGREEME^T8. Assignees of 
 
 Bankrupts. 
 TENDER, 
 
 conveyance must be tendered by the purchaser, where 247 
 
 TERMS OF YEARS, 
 
 bequest of, revoked by the purchase of the fee 175 
 
 purchaser may require an assignment of what 453 
 
 cease by force of a proviso in the deed creating them, where 454 
 merge by an union with the fee, where 460 
 
 title to must be deduced at the expense of the vendor 465 
 
 the expense of the assignment to attend must be borne by 
 
 the vendor or purchaser, where ib* 
 
 an assignment of n)ay be dispensed with, where, and where 
 
 not 466,4 67 
 
 the doctrine of presuming a surrender of terms assigned to 
 
 attend the inheritance 470. 610 
 
 an attendant term cannot be taken in execution, semble 492, n. 
 a man having an actual assignment may prevail over one 
 
 having all the deeds and a declaration of trust of the term, 467 
 a person having the deeds and a declaration of trust will 
 
 prevail over one having only a declaration of trust ib. 
 
 purchaser may protect himself by a term assigned in trust 
 
 for him, against what 511. 520 
 
 should be assigned by a separate deed where they do not 
 
 appear on the conveyance 469 
 
 what recitals are necessary in an assignment of 520, 521 
 
 shall attend the inheritance without an express declaration, 
 
 where 521 
 
 attendant, are not forfeited by felony, but follow an escheat 525 
 are personal assets, where 527, 528 
 
 trustees should be satisfied of what, before they sever the 
 
 term from the inheritance 520, et seq. 
 
 gn assignment of, carries notice of incumbrances on the 
 
 inheritance, where ii. 295 
 
 See Will. 
 TESTIMONY, 
 
 whether a bill lies to perpetuate it against a purchaser, qu., ii. 268 
 TIMBER, 
 
 what is considered so 37 
 
 purchaser will be restrained from cutting, before he has 
 
 paid for the estate 173 
 
 sold with an option, personal estate after the seller's death 187, 
 
 188 
 See Interest.
 
 INDEX. 469 
 
 Pag9 
 
 TIME, 
 
 fixed for completing the contract is at law of the essence 
 of the contract ^^^ 
 
 so in equity where either party has not shown himself 
 
 ready to perform the agreement 425 
 
 and if the vendor take no steps, although in time urged 
 
 to do so, equity will not relieve him 426 
 
 but a vendor will be relieved after the day appointed, 
 
 if he has not been guilty of gross negligence 427 
 
 or the purchaser has waved the time 426 
 
 is more particularly attended to in sales of reversions 429 
 
 delays occasioned by defects in the title will not be a bar to 
 the aid of equity where the time is not material ib. 
 
 so where no time is fixed, if no application has been 
 made for the title, a vendor may recover at law 
 although he did not obtain a title till after an action 
 brought 430 
 
 but if a defective title be produced, a purchaser will 
 recover at law, although the vendor has a title at 
 the time of the trial ^^^ 
 
 equity will allow a vendor time to procure a title where the 
 purchaser at the time of the contract was aware of the 
 
 u- *■ 436 
 
 objections 
 
 a dormant treaty will be enforced if the contract is not 
 
 ^ A A 437 
 
 abandoned 
 
 where by the death or bankruptcy of the purchaser the 
 purchase-money cannot be paid, the vendor may rescind 
 
 u . . 438 
 
 the contract 
 
 may be made of the essence of a contract, semble 440. 444 
 the effect of delay where no time is appointed 445 
 
 must be reckoned according to the new style ^ 135 
 
 but in a parol demise evidence may be admitted ol the 
 intention 
 
 TITLE, 
 
 where it should be inspected before sale 
 
 where it is doubtful, a purchaser should not 'ake possession 10 
 purchaser may take the title such as it is 209 
 
 will be referred back to the master af\er a confirmation of 
 his report in favor of a title, if a new fact eftecting the 
 
 title appear 
 will be referred to the master before the answer, &c. where, 222 
 rules as to reference to the master ^2 
 
 if exceptions to a report in favor of the title are overruled. 
 
 other objections cannot be taken
 
 470 INDEX. 
 
 Pace 
 
 TlThi:— continued. 
 
 contra, when the exceptions are allowed 22 1 
 
 purchaser objecting to a title must prove it bad 234 
 
 a vendor bringing an action, must show his title to the estate 240 
 court of law can enter into equitable objections, where, 
 
 and where not 242 
 
 a purchaser of an existing lease is not bound to take a new 
 
 lease instead of the old one 299 
 
 length of title a purchaser can require 329 
 
 semble, that a purchaser of a lessee can require the pro- 
 duction of the lessors's title 331. 334 
 a lessee cannot as plaintifl' require a specific performance, 
 
 without showing a good title to the freehold 334, 335 
 
 a purchaser of a bishop's lease cannot call for the lessor's 
 
 title 337, 338 
 
 a purchaser cannot be compelled to take a doubtful or an 
 
 equitable title 340 
 
 but he will be compelled to take an equitable title where 
 
 the sale was under a decree of a court of equity 347 
 and cannot object to a title on account of a mere pro- 
 bability 351 
 a purchaser is entitled to a fine from a vendor's wife in 
 
 order to bar her dower, where, and where not 358. 367 
 
 a purchaser is entitled to the same title from assignees of 
 
 bankrupts as from vendors sui juris 367 
 
 a purchaser will be compelled to take a title, although a 
 
 will is not proved against the heir at law 369 
 
 purchaser being defendant may have the title referred to 
 
 the master 218 
 
 where a purchaser takes a defective title relying on the 
 
 vendor's covenants, the agreement should be recited 534 
 
 will be held to have accepted the title, where 224 
 
 purchaser is entitled to what relief in case the vendor 
 cannot make a title 231 
 
 where he has purchased a defective title 553. 664 
 
 where he has taken a defective conveyance ii. 264 
 
 person joining upon a purchase to obviate an objection to 
 the title, will not be bound unless the objection is fully 
 stated ii. 262 
 
 but if a person join upon a general statement, he will 
 be bound ib. 
 
 slander of ii. 277 
 
 sale of pretended title • 660
 
 INDEX. 471 
 
 Page 
 
 TlTh^— continued. 
 
 See Action. Auction Duty. Contract. 
 Devisee. Inclosure. Mortgage. Power. 
 Statutes of Limitation. Time. 
 TITLE-DEEDS, 
 
 if lost, the contents and the due execution must be shown 338 
 may be recovered by the purchaser 468 
 
 execution of, need not be proved in action for breach of 
 
 contract 240 
 
 must be produced in order that the abstract may be com- 
 pared with them 449 
 See Attested Copies. 
 TREASON, 
 
 persons who have committed, can purchase, but not hold, ii. 106 
 TROVER. See Abstract. 
 
 TRUST. See Resulting Trust. Statute of Frauds. 
 TRUSTEES, 
 
 for payment of debts will not be restrained from selling 250 
 their receipts are discharges for purchase-money, where, 
 
 and where not ii. 35 
 
 new trustees appointed by the court have the same power 
 to give receipts as the original trustees had ii. 51 
 
 every trustee who has accepted the trust, must join in 
 
 the receipt, although he has released ii. 60 
 
 but not if he renounced ii. 51 
 
 cannot buy the trust estate ii. 109 
 
 unless they be clearly discharged from the trust ii. 120 
 
 semble, that trustees for creditors cannot buy without 
 the consent of all the creditors ib. 
 
 trustees for persons not siii juris cannot buy with- 
 out the sanction of a court of equity ii. 121 
 purchase by a trustee, without the knowledge of his 
 cestui que trusty may be confirmed under particular 
 circumstances ii. 115 
 purchaser being a relation of the trustee is imma- 
 terial, unless fraud be proved ii. 116 
 cestui que trust has what reniedv against a trustee 
 who has sold to himself, and who may pursue the 
 remedy ii. 122 
 cestui que trust may bar his equity to set aside the 
 purchase by laches ii. 126 
 or by confirmation ib. 
 estates bought by a trustee with trust money cannot be
 
 472 INDEX. 
 
 Pilg9 
 
 TRUSTEES— coH/«i«e(/. 
 
 followed, unless the trust appear on the deed, or the ap- 
 plication of the purchase-money is clearly proved ii. 148 
 but where a trustee is bound to buy estates, it will be 
 presumed he acted in execution of the trust ii. 149 
 unless he considered himself entitled to the purchase- 
 money ib. 
 may join with tenant in tail, if of age, in a recovery ii. 269 
 are answerable to a purchaser for a false representation as 
 to incumbrances 1 1 
 See Heir at Law. Incumbrances. Interest. 
 Purchase Money. Terms of Years. 
 UNREASONABLE CONSIDERATION. See Consideration. 
 USES, DECLARATION OF. See Fines. 
 USES. See Charitable Uses. 
 USURY, 
 
 what is not, upon a contract ii. 19 
 
 VALUATIONS. See Appraisements. Consideration. 
 VALUE, 
 
 false affirmation of 3 
 
 covenants as to ii. 102 
 
 VENDOR, 
 
 not answerable for defects in the estate of which he was 
 
 ignorant 2 
 
 not bound to disclose patent defects ib. 
 
 but must not industriously conceal even a patent defect ib. 
 and is bound to disclose latent defects 2. 313. 564 
 
 cannot be relieved against for false affirmation of value 3 
 
 but otherwise for false affirmation of rent 4 
 
 or of a valuation ib. 
 
 must not conceal incumbrances 6 
 
 may stipulate to sell an estate with such title only as he 
 may have 368 
 
 but such a stipulation is to be viewed with jealousy ib. 
 of leasehold estates can require covenants of indemnity 
 against the rent and covenants in the lease from the 
 purchaser, where 39 
 
 is a trustee of the estate sold for the purchaser, from the 
 
 time of the contract 171 
 
 will be restrained from conveying away the legal estate 
 after a bill filed 217 
 
 but on a bill for a specific performance the court 
 will not take from a seller the disposition of his 
 property SI'''
 
 INDEX. 473 
 
 Page 
 
 VENDOR— con^wuerf. 
 
 may in general bring his action at law, although his bill for 
 
 specific performance be dismissed 248 
 
 will be relieved where he has conveyed more lands than 
 
 were agreed for, where, and where not 324 
 
 must in what case make an allowance for the deterioration 
 
 of the estate 124 
 
 where a person having a right to an estate, purchase it of 
 another, in ignorance of his own title, the vendor must 
 refund the purcha§e-money, with interest 254 
 
 vendor's lien on the estate sold for the purchase-money, if 
 
 not paid, what ii. 57 
 
 vendor, and those claiming under him, must make good 
 a defective conveyance, in what cases ii. 263 
 
 See Action. Agreement. Annuity. At- 
 tested Copies. Conveyance. Purchas£r. 
 Time. Title. Trustees. 
 VOLUNTARY CONVEYANCE, 
 
 fraudulent and voluntary conveyances void against pur- 
 chasers ii. 156 
 purchase by a father, in the name of his child, is not 
 
 voluntary ii. 146 
 
 a conveyance for payment of debts is voluntary, where, 
 
 and where not ii. 159 
 
 notice to a purchaser of a fraudulent or voluntary con- 
 veyance, is immaterial, where he has a conveyance ib. 
 may become good by matter ex post facto ii. 169 
 what is a fraudulent or voluntary settlement, and what is 
 
 a good consideration ii. 161. 168 
 
 whether consideration of marriage extends to collaterals, ii. 161 
 parol evidence is admissible in support of a deed apparently 
 
 voluntary ii- 170 
 
 purchaser having notice of, cannot be advised to complete, ib. 
 and a specific performance would not be enforced 
 against him, whether he bought with or without 
 notice »• 174 
 
 whether a specific performance would be enforced in 
 his favor if he bought with notice, qu. ii. 173 
 
 will be aided by equity, in what cases ii. 168 
 
 voluntary settler will not be restrained from selling the 
 estate >>• 178 
 
 See Fraudulent Conveyance. 
 WARD. See Guardian. 
 VOL. II. 60
 
 474 INDEX. 
 
 Page 
 
 WAVER, 
 
 by parol of a written agreement 145. 148 
 
 of objections, what amounts to 10. 224 
 
 See Opinion. 
 
 WILL, 
 
 mistakes in, corrected, where evident 168, n. 
 
 unless the supplying of the words would defeat the 
 testator's intention 169 
 
 republication of, what amounts to ^ 181 
 
 purchaser cannot require a will to be proved 369 
 
 but he can insist upon its production 370 
 
 terms of years attendant on the inheritance will not pass 
 by a will not attes(ed according to the statute of frauds 626 
 and where the inheritance is intended to pass, but does 
 not, the term shall not 626 
 
 See Contract. Register. 
 WITNESS, 
 
 may look at a paper if he can afterwards swear from 
 memory 10 
 
 See Notice. Perjury.
 
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