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 CHAS 
 
 Convictions 
 
 dition. By W. If. M 
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 ion. 9th Eld 
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 nal Law. 
 
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 nl Public . tVr. By James 
 
 Digests.— i upon 
 
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 .on Law during 
 
 In the Equi 
 
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 Easements. 
 
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 mber of 1 1 
 
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 Elections. — Cunningham's (J.) J 
 
 Petitions. With an ''I such 
 
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 Introduction, Si 
 
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 l%_ and' Third Editi 
 
 J— JJ
 
 CONCISE PRACTICAL TREATISE 
 
 ON THE 
 
 LAW OF PROPERTY. 
 
 BY 
 
 H. W. BOYD MAGKAY, ESQ., LL.B. 
 
 OF THE MIDDLE TEMPLE AND THE KINGS INNS, BARR1STER-AT-LAW, 
 
 FIRST PRIZEMAN IN FEUDAL AND ENGLISH LAW T.C. D., (1863). 
 
 AUTHOR OF "AN APOLOGY FOR THE PRESENT SYSTEM OF CONVEYANCING" (1870). 
 
 LONDON: 
 
 H. SWEET, 8, CHANCERY LANE, W.C. 
 Hato 3SooftsfUcv anU ^uliltaljtr. 
 
 1882.
 
 W. J. J. NORTON, PRINTER, 185, ST. SIDWXLl/S, 
 EXETER. 
 
 rite' \
 
 I 
 
 TO THE 
 
 RT. HON. THE EARL CAIRNS, P.C., D.C.L., LL.D., 
 
 chancellor of the university of dublin, 
 late lord high chancellor of great britain. 
 
 My Lord, 
 
 When I reflect on the rare ability which, within a 
 period unprecedentedly short, raised your Lordship to the 
 highest professional, and all but the highest political, eminence, 
 I cannot but feel impressed by the greatness of the honor 
 which you have conferred on this, my first serious published 
 effort, in permitting me to dedicate it to you: — nor have I 
 ventured to solicit such a favour without endeavouring, so 
 far as prolonged reflection and unwearied diligence could 
 ensure that object, to render the work in some measure 
 worthy of your patronage. 
 
 I am, My Lord, 
 Your most obliged and humble servant, 
 
 THE AUTHOR. 

 
 PEEEACE. 
 
 The mould into which the present work has been 
 cast differs somewhat from that usual in the case of legal 
 treatises, and this fact entitles the reader to an explanation. 
 
 The field traversed has been so wide that abridge- 
 ments of the cases cited would have increased the bulk of 
 the volume many-fold, unless they had been restricted to the 
 leading authorities, and then the work would have been of 
 little value, for not the canons of the law but their 
 exceptions and qualifications are the source of legal difficul- 
 ties ; — nor can I think a text-book in which the reader is 
 presented with a statement of facts from which to deduce 
 the point established by the decision pronounced upon 
 them so perfect as one in which that point is stated in its 
 proper place with a reference to the report (and, when 
 necessary, to the precise page and line of the report) by 
 examination of which the statement may be verified. 
 
 But the desire for compression has prompted a further 
 divergence from preceding models in the omission of 
 discussions respecting the mode in which doubtful points 
 ought to be decided, and it has been thought sufficient to 
 indicate the character of questionable propositions by 
 inserting the word "perhaps," or some similar expression, 
 or by contrasting the cases in which they are supported 
 with those of a contrary tendency; while strenuous efforts 
 have been made to hit off in the fewest possible words the
 
 VI 
 
 exact point involved in each decision or dictum, and to 
 carry condensation to its extreme limit by the free use of 
 parentheses and by punctuating the whole work with 
 extraordinary care ; and by these means, and by grouping 
 together points of kindred character, that saving of the 
 reader's time has (it is believed) been effected which should 
 always form one of the chief aims of a text writer. 
 
 The minor features of the work may be best 
 discovered by inspection, but even of these two may here 
 be noticed: — the use of Technical terms has been reduced 
 to a minimum (those which seemed essential to precision 
 being denned), — and the great majority of the cases cited 
 have been repeatedly examined in the original reports, 
 although in some instances, in which the points involved 
 seemed simple, and the statements in the digests or text 
 books clear, those statements have been relied on. 
 
 All the above observations must however, as regards 
 the earlier chapters, be somewhat qualified, for it was 
 originally intended that the work should be a mere sketch, 
 and this intention was not abandoned until some of the 
 earlier chapters were in type, though even these will, 
 as general statements of the law, be found to possess pro- 
 portionate utility. 
 
 No further observations upon the nature of this parti- 
 cular work seem necessary, but some general remarks 
 respecting the condition of the law of this country will not 
 be out of place here. 
 
 Our law has not kept pace with our civilization. In 
 the latter there has been (as in the civilization of every
 
 Vll 
 
 intelligent nation there must be) a progressive growth. 
 And, as the national civilization approaches manhood, the 
 dress which it wore in infancy becomes inappropriate. 
 But the efforts of parliament and of the courts have been 
 rather in the direction of patching the dress of the boy than 
 in that of preparing a new one for the man, and hence 
 the most conspicuous feature of our law is its patchwork 
 character. Decisions which can be traced to inaccuracy of 
 thought, and rules which, though salutary when framed, are 
 not adapted to the altered state of society, have been 
 treated negligently or not at all. Some of them 
 parliament has abrogated in those instances in which they 
 were most frequently applicable but has left untouched as 
 regards cases of rarer occurrence, — to others the courts have 
 created exceptions on the ground of circumstances which 
 happen not to have occurred in the cases in which the 
 rules were respectively established, but which are, in 
 themselves, immaterial, — while others, again, are still 
 administered in all their rigour. Hence a great need has 
 been left unsatisfied; and this has been to a great extent 
 supplied by private enterprise, for a great system of Con- 
 veyancing has arisen, by which parties are enabled, on 
 each occasion on which they enter into any of the ordinary 
 relations of life, to subject those relations to other rules 
 than those offered by an inadequate law. The rules thus 
 adopted, and known as "common forms," are simply a 
 species of private and unauthorized legislation ; and would, 
 in any adequate Code, be enacted as rules of law applicable 
 in the various cases in which parties are now obliged to 
 stipulate for them, — a consummation which is, indeed,
 
 Vlll 
 
 approached by several recent acts of parliament, and 
 particularly, by Ld. Cairns's and Ld. Cranworth's Acts. 
 
 A good code is, indeed, greatly to be desired ; for the 
 time now occupied in searching for authorities and in 
 comparing cases is very great. But a mere outline code, 
 for the elucidation of which reports and commentaries 
 would be necessary, would be almost useless. If a code is 
 to be of appreciable value, it must formulate and arrange, 
 somewhat in the manner adopted in this work, the points 
 involved in the statutory enactments the decided cases and 
 the common forms; abrogating those which are puerile 
 and solving those which are doubtful : and, if it is to be r>er- 
 feet, it must set forth the various rules in alphabetical order, 
 and must connect each, by top and bottom references, with 
 the rule from which it is derived and the rules which 
 it generates, tracing all up to the principle of the 
 greatest happiness of the greatest number, at which Law 
 may be supposed to aim. I spent some years towards 
 preparing such a code, but I fear it will never see the light 
 until the efforts of text-writers are more liberally appreciated 
 than at present; and I cannot conclude without pointing 
 out that a vast improvement in the quality of text books, 
 and consequent saving of the time now spent by practi- 
 tioners in searching out authorities, would result, if this 
 department could be made an independent branch of the 
 profession. 
 
 H. W. Boyd Mackay, 
 
 Post Office Buildings, Exeter, 
 
 M.T., 1 88 1.
 
 (») 
 
 TABLE OF CONTENTS. 
 
 List of Statutes cited. 
 List of Cases cited. 
 Addenda et Corrigenda. 
 
 Chap. I. Subjects of Property. Page 
 
 Ownership defined . . . . . . . . . . . . . . . . l 
 
 Kinds of Property . . . . . . . . . . . . . . . . \ 
 
 Distinction between Tenements and Chattels . . . . . . . . l 
 
 Distinction between Corporeal and Incorporeal subjects . . . . . . 2 
 
 Distinction between Profits in prender and Easements . . . . . . 2 
 
 Characteristics of Easements . . . . . . . . . . . . . . 2 
 
 Distinguished from natural rigbts . . . . . . . . . . . . 2 
 
 Distinguished from benefits lying in covenant . . . . . . . . 2 
 
 Profits in render and choses in action defined . . . . . . . . 3 
 
 Law applicable to tenements contrasted with that applicable to chattels . . 3 
 
 Leading distinctions respecting chattels and profits &c. . . . . . . 4 
 
 When tenements are treated as chattels . . . . . . . . „ . 4 
 
 Terms of years &c. . . . . . . . . . . . . . . • • 4 
 
 Emblements . . . . . . . . . . . . . . . . . . 5 
 
 When chattels are treated as tenements .. .. .. . . .. 5 
 
 Fixttu - es . . . . . . . . . . . . . . . . . . 5 
 
 Heirlooms . . . . . . . . . . . . . . . . . . 6 
 
 Title Deeds 6 
 
 Technicalities respecting the constitution of profits in render .. .. 7 
 
 Technicalities respecting the constitution of profits in prender and easements 7 
 
 Meanings of the word "Easement" .. .. .. .. .. .. 8 
 
 Distinction between easements in restriction and easements in user. . . . 9 
 
 Kinds of incorporeal personal chattels . . . . . . . . . . . . 9 
 
 Advowsons .. .. .. .. .. .. .. .. .. 10 
 
 Seignories .. .. .. .. .. .. .. .. .. 10 
 
 Lord's Interest in Copyholds .. .. .. .. .. .. .. 10 
 
 Chap. II. Creation and termination of subjects of property. 
 
 Corporeal subjects .. .. .. .. .. .. .. .. 12 
 
 Incorporeal subjects . . . . . . . . . . . . . . . . 12 
 
 How generally originated .. .. .. .. .. .. .. 12 
 
 By grant .. 12 
 
 By adverse enjoyment .. .. .. .. .. .. .. 12 
 
 By tenure and custom . . . . . . . . . . . . . . 12 
 
 As incident to estates .. .. .. .. .. .. .. 13 
 
 As naturally incident to property. . .. .. .. . .. 13 
 
 By implied grant .. .. •• .. .. .. .. .. 16 
 
 Distinction between profits of, and against, " common right " . . . . 17 
 
 How terminated .. .. .. .. .. .. .. .. 17 
 
 ii.
 
 X. 
 
 TABLE OF CONTENTS. 
 
 Generally . • • • . . 
 
 By Release 
 Tenements 
 
 By unity of ownership 
 
 By release or unity of ownership as to part 
 Chattels 
 
 By satisfaction 
 
 By Release of Co-debtor 
 
 Chap. III. Commencement of Title. 
 
 How a new Title commences 
 How the rightful title is barred 
 General principle 
 Diversity of the doctrines prevailing on their head 
 
 By the Statute of Limitations . . . . 
 
 Subjects to which it applies 
 When time begins to run 
 In special cases 
 In general 
 How long time must run 
 
 Right as well as remedy taken away 
 Regular period 
 Periods in exceptional cases 
 Exceptions to the whole Statute 
 By Prescription 
 
 What advantage in another's land the public &c. may have 
 Prescription at Common Law explained 
 By Delay 
 
 Especially in enforcing Contract . . 
 By the prescription Act 
 Generally 
 As to Light 
 By non-existing grant 
 
 As to other negative easements . . 
 By Occupancy — an instance of it abolished 
 
 Chap. IV. Devolution of Chattels on death. 
 
 Devolution of a Joint estate . • . . . . . . . . - . . . 33 
 
 Devolution of a Chattel in other cases . . . . . . . . . . . . 33 
 
 Beneficial interest to next of kin . . . . . . . . . . . . 34 
 
 Legal estate &c. to the Executor &c. . . . . . . . . . . 35 
 
 Limited Administrations . . . . . . . . . . . . . . 36 
 
 Devolution of Executorship &c. . . . • - • . . . . . . 36 
 
 Liability of Executor &c. . . . . . . . • . . . . . . 36 
 
 His right to reimbursement . . . . . . . . . . . . . . 37 
 
 How disentitled to enforce it . . . . . . . . . . . . . . 37 
 
 Creditors' rights . . . . . . . . . . . . . . . . 37 
 
 Purchase from Legatee &c. . . . . . . . . . . . . . . 38 
 
 Powers of Executor and purchase from him. . .. .. .. .. 38 
 
 How precluded from exercising them . . . . . . . . . . 39 
 
 Duty of Executor &c. in exercising his powers of disposition . . . . 39 
 
 Kinds of Legacies . . . . . . . . . . . . . . . . 40 
 
 Order in which assets liable to debts .. .. .. .. 41 & note 
 
 Purchaser from Executor &c, when bound to inquire . . . . 42 & note
 
 TABLE OF CONTENTS. XI. 
 
 Page 
 Chap. V. Devolution op hereditaments on death. 
 
 Devolution of a Joint-estate . . . . . . . . • • . . . . 43 
 
 Devolution of an Hereditament in other cases . . . . . . . . 43 
 
 Dower.. .. .. .. .. .. .. •• .. .. 43 
 
 Curtesy . . . . . . . . . . . . . . . . . . 44 
 
 Dower forfeited . . . . . . . . . . . . . . . . 44 
 
 Heirship .. .. .. .. .. .. .. .. . . 45 
 
 Inheritance act . . . . . ~ . . . . . . . . . . 45 
 
 Stock of descent . . . . . . . . . . . . . . . . 45 
 
 Course of descent . . . • . . . . . . . . . . . . 46 
 
 Bastardy . . . . . . . . . . . . - . . . . . 48 
 
 Descent restricted to issue . . . . . . . . . . . . 48 
 
 Principle of continuing considerations . . . . . . . . . . 48 
 
 On a gift to a Corporation . . . . . . . . . . . . 48 
 
 On a gift in Fee-conditioual . . . . . . . . . . . . 48 
 
 Alienation of estates to which this principle applies . . . . . . 49 
 
 Estates tail . . . . . . . . 49 
 
 Descent of estates in fee-conditional or -in-tail . . . . . . . . 50 
 
 Barring entails .. .. .. .. .. .. .. .. 51 
 
 Protector . . . . . . . . . . . . . . . . . . 51 
 
 Bar for a limited purpose . • .. .. .. .. .. .. 51 
 
 Fines and Recoveries Act commented on . . . . . . . . 52 
 
 " Bare trustee" . . . . . . . . . . . . . . . . 52 
 
 <3«asi-entails of estates pur autre vie . . . . . . . . . . 53 
 
 <2«as/-entails of estates for years . . . . . . . . . . . . 53 
 
 Estate of a " bare trustee " . . . . . . . . . . . . . . 53 
 
 Estate of a Mortgagee . . . . . . . . . . . . . . 53 
 
 Chap. VI. Transmission on Marriage. 
 
 Generally . . . . . . . • . . . . . . . . . . 54 
 
 Early law . . . . . . . . . . . . . . . . . . 54 
 
 As to Tenements . . . . . . . . . . . . . . . . 54 
 
 As to Chattels personal and corporeal .. .. .. .. .. 55 
 
 As to Choses in action .. .. .. .. .. .. .. 55 
 
 As to terms of Years . . . . . . . . . . . . . . 56 
 
 Alterations in these doctrines . . . . . . . . . . . . . . 56 
 
 As to Dower . . . . . . . . . . . . . . . . . . 56 
 
 As to terms of Years . . . . . . . . . . . . . . . . 57 
 
 As to Money-funds (and how reduced into possession) . . . . . . 57 
 
 New doctrines . . . . . . . . . . . . . . . . . 59 
 
 Separate Use . • . • • . . • . . . • . . . . . . 59 
 
 Equity to a Settlement . . . . . . . . . . . . . . 60 
 
 Chap. VII. Conveyancing modifications op the law as to devo- 
 lution on Death or Marriage. 
 
 Generally 62 
 
 Marriage-Settlements . . . . . . . . . . . . . . . . 62 
 
 Their purposes . . . . . . . . . . . . . . . . 62 
 
 Their kinds • • 63 
 
 Strict settlements of freeholds . . . . . . . . . . . . 63 
 
 Their purposes . . . . . . . . . . . . . . . . 63 
 
 Their main clauses . . . . . . . . . . . . . . 63 
 
 Their subordinate clauses . . . . . . . . . . . . . . 65 
 
 Strict settlements of chattels .. •• .. .. .. .. 55 
 
 Settlement in equal shares . . . . . • . . . . . . . . 66 
 
 Its earlier limitations . . . . . . . . . . . . . . 66
 
 Xll. TABLE OF CONTENTS. 
 
 Page 
 
 Its subordinate clauses .. .. .. <• .. •• •• 66 
 
 Its ultimate limitations . . . . . • • • • • . • • • 67 
 
 Wills 67 
 
 Chap. VIII. Transmission on other events than marriage. 
 
 Transmission on Divorce . . . . • • . • • • • • • 69 
 
 Transmission on Conviction for Treason or Felony . . . . . . . . 69 
 
 Transmission on Bankruptcy . . . . . . • • . • • • • • 70 
 
 When it operates .. .. .. .. •• •• .. .. 70 
 
 What passes on bankruptcy . . . . . . . . . • - . . . 70 
 
 What passes on liquidation .. .. .. .. .. .. .. 71 
 
 Transmission on close of Bankruptcy . . . . . . . . . . . . 73 
 
 Transmission by Judicial decision . . . . . . . . • . . . 73 
 
 (Lis pendens) . . . . . . . . . . . . . . • • • • 73 
 
 Chap. IX. Nature of Contracts, Representations, and Dispositions. 
 
 Distinction between Contracts and Dispositions .. .. .. .. 75 
 
 Contract — its operation . . . . . . . . . . . . . . 75 
 
 On the Legal estate . . . . . . . . . . . . . . . . 75 
 
 On the Beneficial estate . . . . . . . . . . . . . . 75 . 
 
 On the Use 76 
 
 Disposition of an estate which the disponor has . . . . . . . . 76 
 
 Disposition of an estate which the disponor has not at the time . . . . 77 
 
 As to the Beneficial Interest . . . . . . . . . . . . 77 
 
 As to Damages .. •• .. .. .. .. .. .. 77 
 
 As to the Legal Estate by Estoppel .. .. .. .. ... 77 
 
 Representation explained . . . . . . . . . . . . . . 78 
 
 Representation of Fact . • . . . . . . . . . . . . 79 
 
 As to the Beneficial Interest . . . . . . . . . . . . 79 
 
 As to the Legal Estate by Estoppel . . . . . . . . . . 80 
 
 Representation of Intention . . .. .. .. .. .. .. 81 
 
 Testamentaiy Dispositions . . . . . . . . . . . . . . 82 
 
 Definition . . . . . . . . . . . . . . . . . . 82 
 
 Kinds 82 
 
 Wills and Codicils 83 
 
 JDonationes mortis causa . . • • . . . . . . . . . . 83 
 
 Contracts beneficial to third persons . . . . . . . . . . 83 
 
 Ghap. X. The Effect of a Contract, &c, to dispose of Property. 
 
 Generally 
 
 Firstly: — It binds the estate 
 Hence Accretions belong to 
 Windfalls .. 
 Losses by Fire 
 Bonuses 
 
 Not Copyhold Fines 
 Secondly : — It transfers right to 
 on proof of title 
 
 84 
 
 84 
 
 and Losses fall on the Purchaser, as : — . . 84 
 
 Purchase-money and property, conditionally 
 
 84 
 84 
 84 
 84 
 
 84 
 
 (Kight to possession at what time) . . . . . . . . . . . . 85 
 
 Thirdly: — It entitles to intermediate Income and Interest . . . . . 86 
 
 Exception as to Interest . . • . . . . . • • . . . . 86 
 
 Condition of sale entitling vendor to interest . . • . . . . . 87 
 
 Time for paying Interest and Income . . . . . • . . . . 87 
 
 Time from which to compute them .. .. .. .. .. .. 87 
 
 If time fixed for completion — as from that time . • .. •• .. 88 
 
 Except on sale of Stock . . . . . . . . . . . . 88
 
 TABLE OF CONTENTS. 
 
 If no time fixed and estate possessory — as from time when purchaser 
 
 could enter 
 If no time fixed and estate reversionary — as from date of contract 
 
 But on sale under court from 8th day after certificate 
 On contract for preemption 
 Definition of time when purchaser could have entered 
 Whence Interest and Income are calculated 
 When purchaser enters prematurely 
 When purchaser neglects to enter 
 Fourthly: — It transfers the liability to outgoings &c. 
 Supplementary remarks 
 Rate of Interest 
 
 Vendor's liabilities while in possession 
 Effects of Rescision 
 
 Page 
 
 Chap. XI. Completion of the mental act, as affecting the val- 
 idity of contracts. 
 
 General principles . . . . 
 
 First essential : Intention 
 Consequences of its necessity 
 Qualifications of this rule 
 Second essential : Definitiveness 
 What promise is deemed definitive . . 
 
 When a formal contract is stipulated for 
 
 When the wording of the promise itself is ambiguous . . 
 
 When the promise was made on honour 
 Disposition definitive as to legal but not as to beneficial estate 
 Definitiveness, whetber necessary to Revocation or to Bequest 
 Precatory trust 
 Trust-deed for creditors 
 
 Indefinitive as to beneficial estate 
 
 Definitive as to legal estate 
 Acts in reliance on indefinitive promise make it binding • . 
 
 Acquiescence by creditor in trust-deed 
 Third essential : Completeness 
 Examples 
 
 As to Vendor's name 
 
 As to other terms 
 
 As to Purchase-money, in case of Notice to Treat 
 Exception in favour of Charity 
 Evidence as to completeness of Contract by Letters 
 Qualification by implying terms 
 
 Conditions implied 
 
 Consequently purchaser cannot recover damages for loss of bargai 
 when title bad 
 Acts in reliance on incomplete promise make it binding 
 
 Even though contract not specifically enforcible 
 
 Payment of money not such an act 
 Fourth essential: Intelligibility 
 
 Unless words capable of construction 
 
 Extrinsic evidence how far received to construe words 
 
 Circumstances 
 
 Intention 
 
 Subsequent conduct . • • • • • • • 
 
 Contemporanea exposilio 
 Misleading contract not specifically enforcible 
 Construction against the promisor . .
 
 XIV. 
 
 TABLE OF CONTENTS. 
 
 Part performance 
 Fifth essential: Communication of offer 
 Sixth Essential: Acceptance of offer 
 Must be manifested . . 
 May be implied 
 
 Acceptance implies a counter-promise 
 Acceptance unnecessary 
 
 When promise &c. gratuitous 
 
 And as to the Legal estate 
 
 Especially when disposition operates under the statute of Uses 
 
 And in case of compulsory purchase 
 How acceptance invalidated 
 
 Retraction 
 
 Rejection 
 
 Bankruptcy 
 
 Death 
 
 Disclaimer 
 Qualified acceptance 
 
 Operates not as acceptance 
 
 But as Rejection 
 
 And as counter-offer 
 Election for or against an Instrument 
 
 Rule 
 
 Exception 
 How made 
 
 Conditions of obligation to make 
 Election by Widow between Devise from husband and Dower 
 
 Chap. XII. Adequacy of the Mental act in general, as affecting 
 
 THE VALIDITY OF CONTRACTS &C. 
 
 Inadequacy of the assent of a party to a contract exonerates him 
 
 Until he be precluded from avoiding it 
 
 And as regards a contract made in Infancy he cannot be thus precluded 
 It does not exonerate the opposite party 
 
 Until the former avoids it 
 Confirmation and avoidance preclude each other 
 Contracts sometimes voidable by either party 
 How far this principle applies to dispositions . . 
 
 Whether it makes them void or voidable . . 
 Classification of invalidating circumstances . . 
 
 Chap. XIII. Ability to perform the mental act, as affecting 
 the validity of contracts &c. v 
 
 Insanity, as affecting — 
 
 Contracts with or to those ignorant of it 
 Contracts with or to those cognizant of it 
 Gratuitous Dispositions 
 Infancy, as affecting — 
 Contracts 
 Rescissions 
 Dispositions 
 
 Invalid except in certain cases 
 When void and when voidable 
 Confirmation and avoidance during Infancy 
 Expedients for obviating the difficulties arising from Infant's inability to 
 make a settlement 
 
 119
 
 TABLE OF CONTENTS. 
 
 XV. 
 
 TOK MENTAL ACT, AS AF- 
 
 Gift to infant 
 
 Fraud 
 
 Drunkenness 
 
 Chap. XIV. Deliberation in performing 
 
 FECTINO THE VALIDITY OF CONTRACTS. 
 
 Surprise 
 Failure to understand the terms 
 (Extreme case on Surprise) 
 Formalities for ensuring deliberation 
 Generally 
 
 (Observation as to formalities for passing the legal estate) 
 What formalities necessary to an ordinary contract or disposition 
 As to every kind of property 
 On disposition &c. for value 
 On gratuitous disposition 
 Testamentary 
 Non-testamentary 
 By Declaration of Trust . . 
 
 By direction to and Attornment fiom existing trustee 
 Bv Transfer of Legal estate or direction to agent to transfer it 
 
 By Deed 
 
 By formalities for passing the legal estate 
 By Delivery 
 As to certain chattels 
 
 By Donatio mortio causa .. 
 What formalities necessary to a disposition for barring entails 
 What formalities necessary to a Disclaimer 
 
 Chap. XV. Freedom of Judgment, as affecting the validity of 
 
 CONTRACTS &C. 
 
 Generally 
 
 Unusually framed deed of gift invalid in some cases . . 
 
 Omission of Power of Revocation 
 Unconscionable bargain respecting a reversion &c. is invalid 
 
 Unconscionableness presumed from harshness and from reversionary 
 character of subject 
 
 What stipulations deemed harsh 
 
 Confirmation of an unconscionable bargain . . 
 Undue Influence invalidates a transaction 
 
 Except (in some cases) a Family arrangement 
 
 And except a testamentary disposition 
 
 And except (it seems) a disposition to one ignorant of the facts implying 
 influence 
 
 Presumptions as to Undue influence .. .. .. . . 
 
 Other Unfair Dealing 
 
 Fear of the consequences of refusal 
 
 (Example — fear that a son will be prosecuted) 
 Duress 
 
 Mortmain acts restraining gifts to Charities 
 Disabilities of Married Women.. .. .. 
 
 Their Appointments under Powers 
 
 Their dispositions of Separate property 
 
 Their contracts respecting (or on credit of) Separate property 
 
 Their contracts as affecting property appointed under a Power . . 
 
 Other instances in which they can dispose of property as if unmarried 
 
 Restraint on Anticipation 
 
 Vuge 
 
 119 
 119 
 119 
 
 121 
 121 
 121 
 122 
 122 
 122 
 123 
 123 
 123 
 123 
 123 
 123 
 124 
 124 
 124 
 125 
 125 
 125 
 126 
 126 
 126 
 127 
 
 128 
 128 
 128 
 128 
 
 129 
 130 
 131 
 132 
 133 
 133 
 
 133 
 133 
 133 
 134 
 134 
 134 
 135 
 136 
 136 
 137 
 137 
 137 
 138 
 138
 
 TABLE OF CONTENTS. 
 
 Page 
 
 Their Testamentary dispositions in cases not above specified .. .. 139 
 
 Their Non-testamentary dispositions in cases not above specified .. 140 
 
 Their contracts in cases not above specified .. •• .. ..141 
 
 Attestation by Solicitor necessary to Bills of Sale and Warrants to confess 
 
 Judgment .. •• •• •• •• •• •• •• •• 141 
 
 Chap. XVI. Valuable Consideration, as affecting the Validity 
 of contracts &c. 
 
 Valuable consideration defined . . . . ' • • • • • 1 42 
 
 When necessary . . . . . . • • • • • • • • • • 142 
 
 To a Contract 142 
 
 To a Disposition . . . . . . . . • • • • • • • • 143 
 
 What deemed sufficient • • •• • • •• •• ■• •• 143 
 
 Generally 143 
 
 In certain cases .. •• .. •• •• •• •• •• 144 
 
 For Composition .. .. .. .. •• • • •• ..144 
 
 For Compromise .. .. •• •• •• • . •• •• 144 
 
 Adequacy when necessary . . . . . . • • • • • • 145 
 
 Moderation in amount of consideration .. .. .. •• .. 145 
 
 From whom consideration must move . . • • • • • • 145 
 
 Mutuality of right necessary to a contract .. .. .. .. .. 146 
 
 Generally . . . . . . . . . . • • • • • • • • 146 
 
 On contracts by letter . . . . . . . . • • • • • . 146 
 
 When part of consideration already rendered .. .. .. ..148 
 
 When contract voidable .. .. •• •• •• •• ..148 
 
 When contract to validity of which signature is necessary has been signed 
 
 by one party only .. .. .. .. •• .. .. .. 148 
 
 Mutuality of remedy .. .. .. .. .. .. .. .. 149 
 
 Failure of Consideration and cognate doctrines, (continuous considerations &c.) 149 
 
 Conditions of specific performance . . . . . . . . . . 1 50 
 
 Pretium affectionis .. .. .. .. .. .. .. ..150 
 
 Sale of Land .. .. .. .. .. .. .. ..150 
 
 Mortgage .. .. .. .. .. .. .. .. 151 
 
 Unique chattel .. .. .. .. .. .. .• ..151 
 
 No standard for assessing damages .. .. .. .. .. .. 151 
 
 Chap. XVII. Who mat sue on a contract as being (or deriving 
 title to it under) the promissee. 
 
 Promissee himself .. •• •• .. .. .. .. ..152 
 
 Executors &c. . . . . . . . . . . . . . . . . . . 152 
 
 Heir 153 
 
 Assign .. .. .. •• •• •• •• •• .. .. 154 
 
 1. By Novation .. .. .. .. .. .. .. ..154 
 
 2. By Assignment without novation .. .. .. .. ..154 
 
 How far subject to counterclaims .. .. .. .. ..154 
 
 In general .. .. .. .. .. .. .. .. 154 
 
 If specifically enforcing .. .. .. .. .. ..154 
 
 When entitled to proceed against the promisor directly . . . . 155 
 
 3. By Negotiation .. .. .. .. .. •• .. .. 156 
 
 Chap. XVIII. Who mat sue on a contract as deriving title to 
 
 AN ESTATE TO WHICH IT IS INCIDENT. 
 
 Transferee of an estate with which a covenant "runs" may recover Dama- 
 ge;; for breach of it . . . . . . . . . . . . . . ..157 
 
 When he obtains the legal estate . . . . . . .... 157 
 
 When he merely obtains the beneficial estate . . . . . . 1 58
 
 TABLE OF CONTENTS. XVU. 
 
 Page 
 
 After premature termination of the estate .. . • .• .. ..158 
 
 Transferee of an estate to which a covenant is incident may enforce it 
 specifically 
 Generally 
 
 (As to Building plots &c.) 
 When covenant made after he became such transferee 
 (As to Building plots &c.) .. .. 
 
 159 
 lo9 
 160 
 161 
 161 
 
 Chap. XIX. Who mat sue on a contract by which he was inten- 
 ded TO BE BENEFITED THOUGH HE BE A STRANGER TO IT. 
 
 Third person cannot sue on a contract though made for his benefit . . 162 
 
 (Amount recoverable for breach of it) .. •• •• •• •• 162 
 
 Third persons cannot prevent rescission &c. by the parties . . . . . . 163 
 
 Third person may sue after rescission has become impossible . . . . 163 
 
 At least if the promissor was not merely entitled, but bound to the prom- 
 
 issee, to confer the benefit on the third person .. .. .. .. 164 
 
 And certainly if the contract was made in consideration of a marriage, and 
 was to settle property on the issue thereof of whom the third person 
 
 was one .. .. •• •• •'• •• •• • • •• 164 
 
 And if the promise was fraudulently made by an expectant heir &c. .. 165 
 
 And under the doctrine in exp. Waring . . .. .. .. .. 165 
 
 Reason for thus favouring a third person .. .. .. .. ..166 
 
 One from whom consideration moved must be plaintiff . • . . • - 166 
 
 Except perhaps on purchase in the name of another . . . . . . 166 
 
 Chap. XX. Who is liable on a contract. 
 
 Who is liable on a contract as being or deriving under the promissor . . 168 
 
 Promissor himself, Executors, &c. . . .. .. ,» . . •• 168 
 
 Heir and Devisee .. .. .. .. .. .. •. ..168 
 
 (But estates freed by alienation) . . .. .. .. .. .. 169 
 
 Assignee, if contract be enforcible .. .. .. .. •• .. 169 
 
 In general .. .. . . .. .. .. .. •• ..169 
 
 Contract to purchase &c. property . . . . . . . • • • 1G9 
 
 Who is liable on a contract as deriving title to an estate on which it is 
 burthensome .. .. .. .. .. .. .. •• •• 170 
 
 Transferee of an estate with which covenant runs must pay damages for 
 the breach of it .. .. .. •• .. •- •• ..170 
 
 Rule 170 
 
 Conditions of Rule .. .. •• .. •• •• •♦ 171 
 
 Exceptions .. .. .. .. .• •• •• ..173 
 
 Transferee of estate with which covenant runs must perform it specifically 173 
 
 Rule 173 
 
 Conditions of Rule .. .. .. .. •• •• •• 174 
 
 Exceptions .. .- .. .. •• •• •• ..175 
 
 When Assignment -relieves original promissor .. .. •• •• 175 
 
 Who is liable on a contract of which he takes advantage though he be a 
 stranger to it .. .. .. .. .. •• •• •• 175 
 
 Rule 175 
 
 Conditions of the Rule .. .. .. •• •• •• ..177 
 
 Effect of the Rule 177 
 
 Chap. XXI. Formalities for evidencing a contract. 
 
 Purpose and effect of these formalities .. .. •• •• ..178 
 
 Consequent admissibility of Oral evidence to diminish the effect of such 
 a contract &c. .. .. .. .. .. .. •• ..178 
 
 When these formalities are requisite .. .. .. •• •• ..178 
 
 ill.
 
 TABLE OF CONTENTS. 
 
 To a Contract 
 To a Representation 
 To a Rescission 
 To a Disposition 
 
 If Testamentary 
 
 If Non-testamentary 
 To an Authority 
 What these formalities consist of 
 Firstly: Writing 
 
 When a written record made after the transaction is sufficient 
 
 What the writing must contain 
 Secondly : either Signature 
 
 In what position and with what purpose 
 
 By whom 
 As Party 
 As Agent 
 
 At what time 
 
 : or (sometimes) Sealing and Delivery .. 
 Thirdly: Attestation. Requisite only to a Will .. 
 Addendum as to Contracts for sale of Bank Shares . . 
 
 Chap. XXII. Exceptions to the Statute op Frauds. 
 
 Acts of Part Performance &c. . . 
 
 Though not strictly a partial performance 
 
 Only if the remedy sought be specific 
 
 Unless performance complete on one side and damages definite 
 
 Only if burthen some to the doer 
 
 And within the purview of the parties 
 
 And evidentiary 
 
 Except in cases of fraudulent inducement 
 
 Not if consisting of execution of instruments 
 
 Nor if of Payment 
 
 Nor if of Preliminaries 
 
 Nor if of Marriage 
 
 (Reasoning from the effect of these acts on informality to their effect on 
 other defects, and conversely) 
 Fraud 
 
 Certain Judicial Sales 
 Deposit of Deeds 
 Admission by pleading 
 
 be 
 
 Chap. XXIII. Conflict between Duty and Interest as affecting 
 
 THE VALIDITY OF CONTRACTS &C. 
 
 Reason of the rules on this subject 
 
 Witness to will incapacitated from taking under it .. .* 
 
 Principle generally confined to the beneficial estate . . . . 
 
 Fiduciary may not place himself in a position in which Interest would 
 opposed to Duty 
 Fiduciary may not sell to himself 
 Fiduciary may not purchase from himself 
 Life-tenant may purchase from fiduciary 
 Fiduciary may not sell to or purchase from beneficiary . . 
 Unless he disclose all material circumstances 
 Nor may Life-tenant 
 What circumstances are material 
 Intending Fiduciary may purchase with intent to sell to beneficiary
 
 TABLE OF CONTENTS. xix. 
 
 Page 
 Rules apply to entire transaction though fiduciary acted jointly with 
 
 ■another person .. .. .. .. .. .. .. .. 194 
 
 Fiduciary &c. may not receive gift from heneficiary . . . . . . 194 
 
 Beneficiary is entitled to whatever fiduciary has (as such) acquired . . 194 
 
 (Exceptions) .. .. .. .. .. .. .. .. 196 
 
 Life-tenant is (in at least some cases) within this rule . . . . . . 196 
 
 Therefore Beneficiary is entitled to profit by the purchase (made by 
 
 the Fiduciary &c.) of an Incumbrance at an Undervalue .. .. 197 
 
 Beneficiary taking advantage of these rules is bound to reimburse fiduciary, 
 
 and the latter has a Lien .. .. .. .. .. .. .. 197 
 
 Remainderman &c. entitled to benefit by Release of Right obtained by a 
 Life-tenant .. . • .. .. •■ .. .. .. ..198 
 
 Chap. XXIV. Unlawfulness and Immorality as affecting the 
 
 VALIDITY OF CONTRACTS &C. 
 
 Effect of unlawful Purpose .. .. .. .. .. .. .. 199 
 
 On a Contract .. •. .. .. .. .. .. .. 199 
 
 On a Disposition .. .. .. .. .. .. .. .. 199 
 
 On a Revocation . . . . . . . . . . . . . . . . 200 
 
 What purpose is deemed unlawful &c. . . . . . . . . . . . . 200 
 
 In general . . . . . . . . . . . . . . . . . . 200 
 
 Restraint on change of Religion . . . . . . . . . . . . 200 
 
 Restraint on Marriage . . . . . . . . . . . . . . 201 
 
 Unchasti'ty (Gift to future Illegitimate offspring) .. .. .. ..201 
 
 Inquiry into paternity of Bastard . . . . . . . . . . . . 203 
 
 Not inquiry into maternity of bastard .. .. .. .. .. 203 
 
 Nor inquiry into reputation of paternity of bastard . . . . . . 203 
 
 Simony . . . . . . . . . . . . . . . . . . 204 
 
 In general . . . . . . . . . . . . . . . . . . 204 
 
 Resignation bonds . . . . . . . . . . . . . . . . 204 
 
 Purchase of Right to Present . . . . . . . . . . . . 205 
 
 Restraint of Trade . . . . . . . . . . . . . . . . 206 
 
 Encouragement of Litigation . . . . . . . . . . . . 206 
 
 Champerty . . . . . . . . . . . . . . . . 206 
 
 Maintenance . . . . . . . . . . . . . . . . 207 
 
 Sale &c. of right of Action for wrong . . . . . . . . . . 207 
 
 Contract to sell &c. property to which such right is incident - . . . 207 
 
 Sale &c. of Legal estate in a Right of action for breach of a contract . . 207 
 
 Transfer of Condition . . . . . . . . . . . . . . 208 
 
 Prodigality . . . . . . - . . . . . . . . . 208 
 
 Rule .. .. .. .. .. .. .. .. .. 208 
 
 (Attempts to restrict the rule) .. .. .. .. .. .. 209 
 
 Conditions of the rule .. .. .. .. .. .. .. 210 
 
 Prodigality presumed from harshness, and from reversionary character 
 
 of subject .. •• •• .. .. .. .. .. 210 
 
 What stipulations deemed harsh . . .. .. .. .. ..210 
 
 Chap. XXV. Technical rules as effecting the validity of dispo- 
 sitions &c. 
 
 Generally 211 
 
 Their origin .. •• •• •• •• •• .. .. ..211 
 
 How they should be abrogated . • . . . . . . . . ..211 
 
 Springing limitation : when void .. .. .. .. .. .. 212 
 
 Vested Remainder after an estate which fails: when void . . . . . . 213 
 
 Who entitled on failure of preceding estate: (when remainder accelerated) . . 213 
 
 Shifting limitation when void 214
 
 TABLE OF CONTENTS. 
 
 Limitation other than a Condition . . . . . 
 
 Condition subsequent 
 
 (How a condition subsequent may be taken advantage of) 
 Limitation over of a chattel : when void 
 
 (i roposed extension of the rule discussed) 
 Limitation of a chattel for ji terminable period 
 Contingent Remainder: when void 
 Condition of Enlargement 
 
 Limitation to a person unborn or unascertained: when void 
 Limitation by Indenture to one who is not a party: w~ 
 Limitation over after an estate in fee: when void 
 Terminable fee: whether allowed 
 Limitation varying course of Devolution void 
 
 Though only operative on one occasion 
 Double possibility 
 
 Child of Unborn person 
 
 Chap. XXVI. Rules favouring early vesting. 
 
 Reasons for these rules 
 
 Preliminary explanation 
 
 Meanings of Technical Terms 
 
 Executory and Contingent Interests are disponable and transmissible 
 
 General rule of favouring vesting 
 
 Member of a Class is only entitled if born before the falling into possession 
 of whichever share first falls into possession 
 
 Member of a Class the amount bequeathed to whom depends on their num- 
 ber, is only entitled if born before the testator's deatli 
 
 Condition expressed as precedent construed as subsequent 
 
 Limitation over expressed as contingent construed as vested 
 
 Class when ascertained.. 
 
 Class partly ascertained before the period of Distribution 
 
 Alternative limitations to one and his issue .. 
 
 Shifting clause: when construed as only meant to operate before the period 
 of Distribution . . 
 
 
 . 214 
 
 
 . 215 
 
 of) '.' 
 
 215 
 
 
 . 215 
 
 . . 
 
 216 
 
 
 217 
 
 
 217 
 
 
 218 
 
 1 .. 
 
 218 
 
 rokl 
 
 219 
 
 
 . 220 
 
 , 
 
 220 
 
 
 221 
 
 
 221 
 
 
 223 
 
 
 223 
 
 
 224 
 
 
 224 
 
 
 224 
 
 225 
 
 225 
 
 227 
 227 
 227 
 228 
 229 
 229 
 
 229 
 
 Chap. XXVII. The Rule in Shelley's case. 
 
 Generally 
 Statement 
 Original effect 
 Circumstances insufficient to preclude the rule 
 To what modes of Disposition it applies 
 To what Subjects and Tenure 
 To what Estate it applies 
 
 Legal or Beneficial 
 
 Joint or Several 
 
 Implied 
 
 Duration 
 
 Contingent 
 
 Lapsed 
 To what modes of expression it applies 
 
 When "Heirs" unnecessary 
 Conditions of the Iiule .. 
 
 When "Heirs" necessaiy 
 Exceptions 
 
 As to the mode of limitation 
 
 Shifting clause 
 
 231 
 231 
 231 
 232 
 232 
 232 
 232 
 232 
 232 
 233 
 233 
 233 
 233 
 233 
 233 
 234 
 234 
 235 
 235 
 M5
 
 TABLE OF CONTENTS. XXI. 
 
 Page 
 
 Legal or Beneficial . . . . . • • • . . . . . • 235 
 
 Freehold or Chattel 236 
 
 As to the number of Instruments used .. - . .. .. .. 235 
 
 (Power ami Appointment) .• •• •• •• .. •• 236 
 
 As to the Stock of Descent . . • • • • • • • • . . • • 236 
 
 Generally . . . . . • . . . . . . • . . . • . 236 
 
 When the first " Heir" is to be Stock of Descent . . . . . . 236 
 
 Consequence of his being so .. .. .. r. .. .. 236 
 
 How it is ascertained whether he is so. . .. .. .. .. 237 
 
 In general . . . . . . . . . . . . . . . . 237 
 
 When ''Heir" used in singular .. .. .. .. .. 237 
 
 When "Heir" used in plural .. .. .. .. .. 238 
 
 When " Heirs" directed to take in shares .. .. .. . . 238 
 
 When " Heirs" to take only on attaining age . . . . . . 238 
 
 When "Issue" directed to take in shares .. .. .. .. 239 
 
 When the question arises on a Contract or Executory Trust . . 239 
 
 To settle on Marriage 239 
 
 To settle otherwise. . .. .. .. .- .. .. 240 
 
 Extension of Rule (Gift to donor's heirs) . . . . . . . . . 240 
 
 Chap. XXVIII. The Cy pkes Doctrine. 
 
 Generally 241 
 
 Rule Introduced .. .. .. .. -• .. •• ..241 
 
 Rulestated.. 241 
 
 As applicable to gifts for Charity .. .. .. .. .. ..241 
 
 As applicable to Limitations to a person and his issue . . . . . . 241 
 
 To one for life and (from his deathj to his descendants successively, 
 
 (each taking for life) '.243 
 
 To one for life and (from his death) to his children in concurrent shares 
 
 for their lives; and, as to the share of each, to his children in shares &c. 243 
 To one, and (from his death) to his children in tail, under a Power not 
 
 authorizing the latter limitation . . . . . . . . . . . . 244 
 
 Chap. XXIX. Restraints on Alienation. 
 
 General principle . . • • • • • • . • . • . . . . 245 
 
 Clause merely prohibiting alienation: void .. .. .. .. .. 245 
 
 (Mode of evading this rule) .. . . .. .. .. .. 246 
 
 Clause cutting short a perpetual estate on alienation, void . . . . . . 246 
 
 Rule 246 
 
 (What deemed alienation) . . . . . . . . . . 246 n. (in) 
 
 (Definitions of terms denoting theclauses by which estates are limited over) 247 
 
 Exceptions . . . . . . . . . . . . .... . . 248 
 
 Cases falling outside, the terms of the Rule. . . . . . - . . 249 
 
 Restraints overriding terminable estates . . . . . . . . . . 249 
 
 Conditions precedent .. .. .. .. .. •• .. 250 
 
 Clause cutting short an estate-tail on alienation : void . . . . . . 250 
 
 Chap. XXX. The Rule against Perpetuities. 
 
 Introductory observations . . . . . . . . . . . . . . 252 
 
 Rule stated 252 
 
 Circumstances insufficient to preclude the Rule . . . . . . . . 252 
 
 To what subjects &c. it applies . . . . . . . . . . . 253 
 
 To what modes of Disposition . . . . . . . . . . . . 253 
 
 To what modes of Limitation . . . . . . . . . . . . 253 
 
 To what Contingencies . . . . . . . . . . . . . . 253 
 
 Generally . . . . . . . . . • . . . . . . . . 253
 
 XX11. 
 
 TABLE OF CONTENTS. 
 
 Alternative 
 
 Limitations under Trusts and Special Powers . . 
 
 To directions for Accumulation 
 
 To Antient dispositions 
 
 To Trusts imposed as consideration for the disposition 
 
 To limitations to a Class 
 
 To Charitable uses (when) 
 
 To Restraints on Anticipation 
 
 Perhaps to Accruer-clauses 
 Exceptions . . . • 
 
 Perhaps Accruer-clauses 
 
 Child in the womb (in part) 
 
 Charitable trust 
 
 Power or Trust 
 
 Appointment under Trust or Special Power *. 
 
 Testamentary disposition (unless from death) 
 
 Appointment under general power 
 
 Exercise of Powers in Mortgages &c. 
 
 Estate &c. behind estate-tail 
 
 Possibility of Reverter 
 
 Escheat 
 
 Reversion 
 
 Vested Remainder 
 
 Contingent Remainder (in part) 
 
 Condition 
 
 Lease 
 
 Creation of profit or easement 
 Qualifications 
 
 Executory Interests 
 
 Disabilities 
 
 Partial Interests 
 
 Settlements of Life-holds &c. 
 
 Limitation for Life &c. 
 
 Limitation following void Limitation 
 
 Renewable Leasehold 
 
 Executory Trusts 
 
 Page 
 254 
 255 
 256 
 256 
 257 
 257 
 257 
 257 
 258 
 258 
 258 
 258 
 258 
 259 
 259 
 259 
 259 
 260 
 260 
 261 
 261 
 261 
 262 
 263 
 263 
 265 
 265 
 265 
 265 
 265 
 265 
 265 
 266 
 266 
 267 
 267 
 
 Chap. XXXI. Points bearing on the Rule against Perpetuities. 
 
 How far rule may be evaded by construction. . . . . . . . . . 268 
 
 Whether invalidity of Shifting clause prevents preceding estate from ceasing 268 
 
 Duration of Powers . . . . . . . . . . . . . . . . 269 
 
 Chap. XXXII. The Thelluson Act against Accumulation. 
 
 Accumulations invalidated by this Act . . . . . . . . . . 272 
 
 Accumulations invalidated by the Rule against Perpetuities . . . . 272 
 
 "Who entitled to Income ineffectually directed to be accumulated . . . . 273 
 
 Construction of directions for Accumulation . . . . . . . . . . 273 
 
 Chap. XXXIII. Laws against dispositions, in Mortmain, or for 
 other purposes of a permanent character. 
 
 Introductory remark .. .. .. .. .. .. .. .. 274 
 
 Trust for durable purpose : void .. .. .. .. .. ..274 
 
 Rule 274 
 
 Exceptions .. .. .. .. .. .. .. .. .. 274 
 
 Purposes falling under the 1st exception as conducive to the public welfare 274 
 
 Trusts for certain Religious purposes, void . . . . . . . . . . 275
 
 XX111. TABLE OF CONTENTS. 
 
 Page 
 Co-owners entitled each to dispose of his share without the concurrence of 
 
 the others .. .. .. .. .. .. .. .. .. 276 
 
 Communities and Associations not recognized as corporations, except in 
 
 certain cases .. .. .. .. .. .. .. .. .. 277 
 
 Corporations forfeit tenements acquired by them .. .. .. ..278 
 
 Limitation of chattel interest to child of tinhorn person: valid . . . . 279 
 
 Right to nominate Master : alienahle .. .. .. .. ... .. 279 
 
 Chap. XXXIV. Mistaken Belief as affecting the validity of 
 
 CONTRACTS &C. 
 
 Definition of the kind of Mistake here discussed . . . . . . . . 280 
 
 Mistake invalidates a contract &c. . . . . . . . . . . . . 280 
 
 Rule (Mistake of Fact) 280 
 
 Exceptions ..... . . . . . . . . . . . . . . 282 
 
 Mistake in law . . . . . . .... . . . . . . 282 
 
 Mistake in Calculation . . . . . . . . . . . . . . 282 
 
 Objection stipulated against . . . . . . . . . . . . 282 
 
 Sale under the court . . . . . . . . . . . . . 282 
 
 Death of the mistaken party . . . . . . . . . . . . 282 
 
 Part performance . . . . . . . . . . . . . . . . 282 
 
 Legal estate . . . . . . • • . . . . . . . . 284 
 
 Mistake prevents an Implication of Intention . . . . . . . . 284 
 
 Mistake does not entitle the party to remodel the contract . . . . . . 284 
 
 Chap. XXXV. Misrepresentation and Concealment as affecting 
 
 THE VALIDITY OF CONTRACTS, &C. 
 
 Representee is entitled to divers kinds of relief under similar circumstances 285 
 Representee is entitled to Damages, Specific realization, and the Beneficial 
 
 estate, as a promisee would be . . . . . . • • . . . . 285 
 
 Exceptions . . . . . . . . . . . . . . . . . . 286 
 
 (As to Matter of Law) 287 
 
 (As to a Married Woman) 287 
 
 Representee, induced by a misrepresentation to contract, is entitled to the 
 
 consideration for which he would (if aware of the truth) have contracted 287 
 
 Representee, induced by misrepresentation to contract, is exonerated . . 288 
 
 From liability to Damages for breach of the contract . . . . . . 288 
 
 From liability to perform it . . . . . . . . . . . . . . 288 
 
 Representee is entitled to Restitution . . . . . . . . . . . . 289 
 
 Concealment is often tantamount to misrepresentation . . . . . . 291 
 
 Chap. XXXVI. Conditions precedent, and essential terms in 
 
 CONTRACTS. 
 
 Introductory remarks . . . . . . . . . . . . . . . . 294 
 
 Rule that breach of a stipulation exonerates the opposite party . . . . 294 
 
 (In distinct contracts) . . . . . . . . . . . . . . 295 
 
 Particular examination of some of the conditions of the rule . . . . 296 
 
 Breach of a stipulation forming the sole consideration .. .. .. 296 
 
 Breach of a stipulation without which the consideration moving from the 
 
 promissor could not be enjoyed . . . . . . . . . . . . 297 
 
 Breach of a stipulation but for which the opposite party would not have 
 
 contracted . . . . . . • . • • • • • • • • • • 297 
 
 Breach of a stipulation the performance of which was intended to facilitate 
 
 that of the opposite party • . . • • • • • • • . . • . 298 
 
 Breach of a stipulation which forms the consideration for the relinquish- 
 ment of a Right 298 
 
 Essential terms distinguished .. . . .. .. .. ..299
 
 Time essential if so agreed 
 Time essential if substituted 
 Time when not essential 
 
 TABLE QF CONTENTS. XXIV. 
 
 Page 
 
 Essentiality of Time 299 
 
 Time is essential: — 
 
 When delay would frustrate the purpose . . . . . . ... 299 
 
 If time fixed to ensure expedition . . . . . . . . . . 299 
 
 If stipulation meant to facilitate the opposite party's performance 299 
 
 If delay unfair 300 
 
 Leaseholds . . . . . . . . . . . . . . 300 
 
 Reversions . . . . . . . . . . . . . . 300 
 
 If the advantage depends on the time of performance . . . . 300 
 
 If the persons to be benefited depend thereon . . . . . . 300 
 
 When the party cannot complete . . . . . . . . . . 300 
 
 Exception : Vendor may shew title after commencement of action 300 
 Time hastened by Notice .. .. •• •• •• ..301 
 
 301 
 
 302 
 
 302 
 
 When time for sending in requisitions begins to run . . . . . . 302 
 
 Long delay precludes from enforcing contract . • . . . . 303 
 
 Preclusion from insisting on essentiality of time . . . . . . 303 
 
 Essentiality of other terms .. .. .. •• .. •• 303 
 
 In general . . . . . . . . . . • • . . . • 303 
 
 Breach which frustrates the purpose . . . . . . . . . . 304 
 
 Breach in a point necessary to the full enjoyment . . . . . . 304 
 
 Breach the damages from which cannot be estimated . . . . 305 
 
 Breach on points not essential . . . . . . . . . . '. • 306 
 
 Breach of independent stipulations .. .. .. .. .. .. 306 
 
 Preclusion from taking advantage of breach .. .. .. .. .. 307 
 
 Compensation allowed for breach of non-essential term or independent 
 
 stipulation .. - . •• . • •• -• •• .. •• 308 
 
 Chap. XXXVII. IJelief against Penalties and Forfeitures. 
 
 Excuse for breach of conditition as to legal (as well as beneficial) estate . . 310 
 Condition Subsequent . . . . . . . . . . . . . . 310 
 
 Condition Precedent .. .. .. .. .. .. ..311 
 
 Relief on equitable grounds against breach of condition by which the dispo- 
 nee was to retain or obtain the estate .. .. .. .. ..311 
 
 Conditions Subsequent .. .. .. .. .. .. .. 311 
 
 Conditions Precedent .. .. .. .. .. .. .. 314 
 
 Relief on equitable grounds against breach of a condition by performing 
 which the disponor was to Redeem &c. the estate . . . . . . 315 
 
 When the disponee may not compel performance . . . . . . . . 315 
 
 When he may .. .. .. .. .. ..315 
 
 If foreclosure has not been decreed .. .. .. .. ..315 
 
 If it has 316 
 
 Miscellaneous points .. .. .. .. .. .. .. .. 316 
 
 Increase of Interest on Debts .. .. .. .. .. ..316 
 
 Lunatic's tenant relieved .. .. .. .. .. .. ..317 
 
 Concealment of Mortgage from second Mortgagee . . .. .. .. 317 
 
 Condition implies agreement to perform .. .. .. .. ..317 
 
 Chap. XXXVIII. Right op purchaser to enforce what he can re- 
 quire, WITH ABATEMENT FOR THE REST; AND HIS LIABILITY TO COM- 
 PENSATE THE VENDOR FOR EXCESS. 
 
 Generally . . . . . . . . . . . . . . . . . . 318 
 
 Purchaser who cannot obtain all may enforce practicable part . . . . 318
 
 TABLE OF CONTENTS. XXV. 
 
 Page 
 
 With abatement .. .. •• •• •• • . •• .. 319 
 
 Or (in some cases) with Indemnity . . .. .. . . .. .. 320 
 
 Or may (in some cases) Rescind .. •• •• •• • . .. 321 
 
 Vendor of property greater than agreed for is bound to perform only if pur- 
 chaser allow compensation .. .. .. .. •• .. ..321 
 
 Vendor of property burthened is bound to perform only if purchaser cove- 
 nant to indemnify .. .. .. <• •• •• .. .. 321 
 
 Chap. XXXIX. Resulting and Constructive Uses and Trusts. 
 
 Rule : A Disposition to another, or a Purchase in his name, does not necess- 
 arily give him the beneficial estate . . • • • • • • . . . . 322 
 
 Corollary: The redemption of a Charge does not necessarily extinguish it 323 
 
 Particular discussion of some of the circumstances by which the distination 
 
 of the beneficial estate is affected . . . . . . . . . . . . 324 
 
 Intention expressed in the disposition . . . . . . . . . . 324 
 
 Intention shewn apart from the disposition . . . . . . . . . . 324 
 
 Testamentary character of the disposition . . . . . . . . . . 324 
 
 Valuable consideration stated in the disposition . . . . . . . . 325 
 
 Relationship implying obligation to provide . . . . . . . . 325 
 
 Extension of the rule by the statute of Uses to the Legal estate . . . . 326 
 
 Chap. XL. Liens (including Consolidation op Mortgages.) 
 
 Liens depending on the principle of dependent promises . . . . . . 328 
 
 Vendor's Lien 328 
 
 Purchaser's Lien for Abatement &c. . . . . . . . . . . 329 
 
 Purchaser's Lien in case of Restitution . . . . . . . . . . 329 
 
 Beneficiary's Lien on Settled funds . . . . . . . . . . 330 
 
 Wife's Lien on property passing by the marriage . . . . . . . . 330 
 
 Manager's Lien on Business . . . . . • • • . . . . . . 330 
 
 Trustee's Lien on interest of beneficiary who has reaped the advantage of 
 
 a Breach of Trust 33l> 
 
 Mortgage extended to the Mortgagor's interest in the money . . . . 331 
 
 Liens depending on the principle of Substitution .. .. .. .. 331 
 
 Following of Trust-funds .. .. .. .. .. .. .. 331 
 
 When permitted .. .. .. .. .. .. .. .. 331 
 
 How worked out . . . . . . . . . . . . . . . . 332 
 
 Liens for expenditure . . • . . . . . . . . . . . 332 
 
 Lien depending on the principle of taking cum onere .. ., . . . . 333 
 
 Liens for Debts . . . . . . . . . . . . . . . . 334 
 
 Crown-debts 334 
 
 Judgments . . . . . . . . . . . . . . . . . . 334 
 
 Succession-duty and other claims . . . . . . . . . . . . 335 
 
 Bankruptcy-trustee's Lien .. .. .. .. .. .. .. 335 
 
 Solicitor's Liens . . . . . . . . . . . . . . . . 335 
 
 Consolidation of Mortgages . . . . . . . . . . . . . . 336 
 
 Banker's Lien . . . . . . . . . . . . . . . . . . 339 
 
 Chap. XLI. Priorities in general, (including lis pendens.) 
 
 Inconsistent claims: when equally favoured .. .. .. .. .. 340 
 
 Inconsistent claims : when unequally favoured . . . . . . . . 340 
 
 Generally 340 
 
 Reversal of priorities . . . . . . . . . . . . , . .-. 341 
 
 Exceptions common to all the rules respecting priorities . . . . . . 341 
 
 Force and Fraud .. .. •• -. .. .. .. .. 341 
 
 Lis pendens .. . . . . . . . . . . . . . . . . 342
 
 XXvi. TABLE OF CONTENTS. 
 
 Page 
 
 Re-acquisition by Trustee . . . . . • . • . . • . 344 
 
 Act done after fund becomes distributable . . . . . . . . 344 
 
 Chap. XLII. Priority by Precedence in Time. 
 
 Statement of the doctrine . . . . . . . . . . . . . . 345 
 
 Consequences of the doctrine . . . . . . . . . . . . . . 346 
 
 Creditor's Lien preferred to Legacy .. .. .. .. .. 346 
 
 Lessor, when preferred to those who derive under the lessee . . . . 348 
 
 Assignee of chose in action is subject to its equities . . . . . . 348 
 
 Extensions of the doctrine .. .'. .. .. •- .. .. 349 
 
 Mortgagee may consolidate against assignees of equity of redemption .. 349 
 Disposition under a Power does not displace a preceding interest derived 
 
 under the disponor . . . . . . . . . . . . . . . . 350 
 
 Promissee is entitled to avoid certain dispositions made to evade the promise 354 
 
 Kining an entail confirms the preceding disposition .. .. .. 354 
 
 Qualification of the rule: Paying off an Incumbrance lets in subsequent 
 
 incumbrances . . . . . . . . . . . . . . . . . . 354 
 
 Chap. XLIII. Priority defending on Intention. 
 
 General statement . . . . . . - . . . . . . . . . 358 
 
 Rule 358 
 
 Examples . . . . . . . • . . . . . . . . . . 358 
 
 Shifting clause . • . . . . . . . . . . . . - - 358 
 
 Power 358 
 
 (" Power of Revocation" and " Power of Appointment" defined) .. 358 
 
 Testamentary disposition . . . . . . . . . . . . . . 358 
 
 Entry for breach of condition . . . . . . . . . . . . 358 
 
 Qualification: Sale subject to void transaction .. .. .. .. 358 
 
 Detailed statement respecting the relative priority of a limitation made under 
 a Power and the limitations made by (or under the authority of) the dispo- 
 sition by which it was conferred . . . . . . . . . . . . 359 
 
 Preference of a limitation which would probably stand first in the settlement 359 
 Preference of a limitation under a Power, over a limitation under a settle- 
 ment or under a power subsequently exercised . . . . . . . . 360 
 
 Chap. XLIV. Priohity by positive Law. 
 
 Enumeration of powers conferred by Law .. .. .. .- •• 363 
 
 Priority of dispositions under powers conferred by Law . . • • • • 370 
 
 Chap. XLV. Priority by barring entails &c. 
 
 Nature of the l-ight to bar au entail &c. 
 Bar of Fee-conditional 
 Bar of Entail 
 
 Generally 
 
 When made for a limited purpose 
 
 Chap. XLVI. Priority depending on Certainty. General view. 
 
 372 
 372 
 372 
 372 
 374 
 
 Certainty in general .. .. .. .. .. •• .. .. 375 
 
 Legal distinguished from Beneficial Interest . . . . . . . . . . 375 
 
 Usefulness of the distinction, since by it a purchaser with the legal estate is 
 freed from secret claims .. .. .. .. .. .. .. 377 
 
 Substitute (in case of choses in action) for the legal estate . . . . 378 
 
 Question whether the reason of the rule by which a purchaser having the 
 legal estate gains priority extends to a purchaser having some other advan- 
 tage 379
 
 TABLE OF CONTENTS. XXV11. 
 
 Present uncertainty of titles 
 Statement 
 
 -lies proposed . . 
 gestion by Ld. St. Leonards 
 Indisputable titles . . 
 rded titles 
 Miscellaneous points 
 
 Page 
 381 
 381 
 383 
 383 
 383 
 385 
 385 
 
 Contents of the following chapters on Priority depending ou certainty . . 386 
 
 Chap. XLVII. Priority by tue Legal estate and similar means. 
 
 Rule 388 
 
 Immaterial circumstances . . . . . . . . . . . . . . 388 
 
 Persons protected . • . . . . . . . . . . . . . . 388 
 
 Subject-matter . • . . . . . . . . . . . . . . 388 
 
 Interests postponed . . . . . . . . . . . . . . . . 389 
 
 Adverse circumstances .. .. .. .. .. .. .. 390 
 
 As to the Legal estate . . . . . . . . . . . . . . 390 
 
 Time of acquiring it . . . . . . . . . . . . . . 390 
 
 Purpose of acquiring it . . . • . • . . . . . . 390 
 
 Nature of it . . . . . . . . . . . . . . . . 390 
 
 Other circumstances connected with it . . . . . . . . . . 390 
 
 As to the protected Interest . . .. .. .. .. .. ..391 
 
 As to the rival Interest .. .. .. .. .. .. ..391 
 
 As to other matters . . . . . . . . . . . . . . . . 393 
 
 Conditions of the rule . . . . . - . . . . . . . . . . 393 
 
 Verba de prcesenti . . . . . . . . . . . . . . . . 393 
 
 Rightful nature of the transfer of the legal estate . . . . . . . . 394 
 
 Possession . . . . . . . . . . . . . . . . . . 395 
 
 Value 395 
 
 Union of the legal estate with the protected Interest . . . . . . 395 
 
 Condition appropriate to a chose in action . . .. . . . . . . 395 
 
 Exceptions . . . . . . . . • . . . . . . . . . 395 
 
 In respect of Locality (Ireland) . . . . . . . . . . . . 395 
 
 In respect of Subject-matter.. .. .. .. .. .. .. 396 
 
 In respect of the means by which priority is gained . . . . . . 396 
 
 By the legal estate . . . . . . . . . . . . . . 396 
 
 Chain of title to it . . . . . . . . . . . . . . 396 
 
 Mode of getting it in . . . . . . . . . . . . 397 
 
 By the circumstances appropriate to a chose in action .. .. . - 397 
 
 In respect of the protected Interest . . . . . . . . . . . . 399 
 
 In respect of the postponed Interest . . . . . . . . . . 400 
 
 In respect of subsequent events . . . . . . . . . . . . 400 
 
 In respect of notice when acquiring the legal estate . . . . . . 401 
 
 In respect of notice when acquiring the beneficial interest . . . . 402 
 
 In respect of general creditors . . . . . . . . . . . . 402 
 
 Cases outside the rule . . . . . . . . . . . . . . . . 402 
 
 Solicitor's Lien . . . . . . . . . . . . . . . . 402 
 
 Disposition of all the disponor's property . . . . . . . . . . 403 
 
 Remarks upon the rule. . .. .. .. .. .. .. .. 403 
 
 Attendant Terms . . . . . . . . . . . . . . . . 403 
 
 Compelling Trustee to recover trust property .. .. .. .. 403 
 
 Consequences of the rule in case of — 
 
 — disposition of the chattels of a deceased person . . . . . . . . 404 
 
 — payment of a debt . . . . • • . - . . . . . . . . 404 
 
 Extension of the rule . . . . . . . . . . . . . . . . 404 
 
 Chap. XLVIII. Priority by Registration of Deeds. 
 
 Rule .. .. .. .. .. .. .. .. .. ., 405
 
 TABLE OF CONTENTS. 
 
 Applicability of the Rule 
 
 Inspecting the preferred disposition 
 
 Title to it 
 
 Value 
 
 Notice 
 
 Lease 
 Respecting the postponed transaction 
 
 Testamentary disposition . . 
 
 Contract 
 
 Transmission 
 
 Grant under the Land Improvement Acts 
 
 Locality 
 
 Legal estate 
 
 Time of Registration 
 
 Pending Action 
 Conditions of the Rule .. 
 
 Form of Registration 
 
 Value 
 Exceptions 
 Tenure 
 
 Respecting preferred transaction 
 Respecting postponed Interest 
 
 Crown 
 
 Testamentary disposition . . 
 
 Occupation &c. lease 
 
 Charge 
 
 Indisputable title 
 
 Oral disposition 
 
 Transmission 
 
 Earlier Registration 
 
 Priority by another rule . . 
 
 Notice 
 Extensions of the principle 
 
 Landlord recovering in ejectment 
 Registrations by which priority is not affected 
 
 Chap. XLIX. Notice disentitling a purchaser to priority 
 
 General principle (" Actual Notice " and " Constructive Notice " defined) 
 Applicability of the rule 
 
 (Time of Notice ) 
 Conditions of the rule 
 
 Exceptions (including the point respecting Doubtful Equities) 
 ■Notice prevented by counter-evidence 
 Security on Contract to purchase 
 
 Chap. L. Formalities for acquiring the Legal estate or its 
 equivalent. 
 
 Contents of this chapter 
 
 Formalities for acquiring the legal estate 
 
 Irrespectively of a Power .. 
 
 In a Tenement 
 
 In an Annuity 
 
 In a Chose in action 
 
 In a Corporeal personal chattel 
 By a disposition made under a Power 
 Formalities for Disclaiming the legal estate 
 
 Page 
 405 
 405 
 405 
 407 
 407 
 407 
 407 
 407 
 407 
 407 
 408 
 408 
 409 
 40? 
 409 
 40'J 
 409 
 409 
 409 
 409 
 409 
 410 
 410 
 410 
 411 
 412 
 412 
 412 
 412 
 413 
 413 
 413 
 414 
 414 
 414 
 
 416 
 417 
 418 
 419 
 420 
 422 
 422 
 
 423 
 423 
 423 
 423 
 425 
 425 
 427 
 429 
 
 43a
 
 TABLE OF CONTENTS. 
 
 XXIX. 
 
 Circumstances conferring the best right to call for the legal estate 
 Mode of Registering Deeds 
 
 Circumstances under which a disponee of a chose in action &c. is entitled 
 to priority as if he had the legal estate 
 
 Generally : 
 
 W hat circumstances are requisite 
 
 Whose knowledge is required when knowledge is the requisite circumstance 
 
 Chap. LI. Transfer of the Legal estate by operation of law. 
 
 Contents of this chapter 
 By the Statute of Uses 
 
 Rule and reason of it 
 
 Applicability of the rule 
 (Resulting Uses) .. 
 
 Conditions of the rule ■ . . 
 
 Exceptions 
 
 Transfer of covenant 
 By transmission of the legal estate to certain functionaries 
 By Vesting Order under the Trustee Acts 
 By Miscellaneous Statutes 
 
 Page 
 430 
 431 
 
 432 
 432 
 432 
 435 
 
 437 
 437 
 
 437; 
 
 437 
 438 
 439 
 440 
 441 
 441 
 441 
 442 
 
 Chap. LII. What constitutes Notice. 
 
 General rule with exception 
 
 First derivative rule: (Knowlege is Actual Notice) .. 
 Second derivative rule: (Means of knowledge are Constructive notice) 
 Rule 
 
 Conditions of the rule 
 Exception 
 
 First consequence of this rule: (Circumstances raising presumption are 
 notice) 
 Statement 
 Examples .. 
 Notification 
 
 Knowledge of circumstances affording presumption of law . . 
 Knowledge of circumstances affording presumption of fact - . 
 Knowledge of alternative 
 Qualification of this consequence: (Circumstances raising suspicion are 
 not notice) 
 Second consequence of this rule (Negligence is Constructive notice) 
 Statement 
 Examples .. 
 
 Inquiry from occupier 
 Inquiry who has Title-deeds 
 Inquiry from him who has Title-deeds 
 Scrutiny of the Deeds 
 
 Investigation of the Documents through which title is traced 
 Investigation of other Documents affecting the property 
 Inquiry whether rival dispositions were attended by validating cir 
 cumstances 
 Inquiry whether known Incumbrances are the only ones 
 Inquiry from Incumbrancers as to details 
 Inquiry from Trustees as to Trusts 
 
 Inquiry from one presumptively entitled to revocable benefit 
 Inquiry from Conveying parties 
 Attention to Register on searching it . .. 
 Inquiry iuto Local Customs 
 
 443 
 443 
 444 
 444 
 445 
 445 
 
 445 
 445 
 445 
 445 
 446 
 446 
 446 
 
 447 
 448 
 448 
 448 
 448 
 449 
 449 
 450 
 450 
 452 
 
 452 
 452 
 452 
 452 
 453 
 453 
 453 
 453
 
 XXX. TABLE OF CONTENTS. 
 
 Page 
 
 Qualification of this second consequence: (Circumstances under which 
 
 negligence is not notice). . •• •• •• •• •• •• 454 
 
 Consequence of the above-stated exception: (Representations &c. to the 
 
 contrary prevent the effect of notice) . • • • . . . . . . 454 
 
 Examples . . . . . . • • • • • • • • • • • • 454 
 
 Statement by Occupier.. .. .. .. 454 
 
 Excuse for non-production of Deeds . . . . . . . . . • 454 
 
 Receipt for purchase-money . . . . . . . . . . . . 455 
 
 Release of Incumbrances .. .. .. .. .- ..455 
 
 Acts of ownership over incumbered property . . . . . . . . 455 
 
 Employment of Valuator . - . . . . . . . . . . 455 
 
 Inaccurate description . . . . . . . . . . . . . • 456 
 
 Qualifications of this exception . . . . . . . . . . . . 456 
 
 Omission to inquire from one known to be interested . . . • 456 
 
 Release, of a nature ordinarily conditional . . . . . • . • 456 
 
 Termination, not non-existence, of the rival interest represented . . 456 
 
 Chap. LIII. Imputative Notice. 
 
 Reason of the rule .. .. •• .. .. .. .. •• 458 
 
 Rule 458 
 
 Applicability of the rule . . . . • . . . . . . . • • 458 
 
 To what transactions . . . . • • . . . . . . . • 458 
 
 In other respects . . . . . . • • . . . . . . • • 459 
 
 Conditions of the rule . . . . . . • • . . • • • • • 460 
 
 Communication of Notice .. .. .. .. .. .. •• 460 
 
 Nature of Notice . . . . . . . . . . . . . . • • 460 
 
 Nature of the Agency .. .. .• .. .. .. •• 460 
 
 Time of Notice . . . . . . . . . . . • . . • • 460 
 
 Exceptions to the rule .- .. .. .. .. -• .. •• 461 
 
 Who is deemed Agent . . . . . . . . . . . . . . • • 462 
 
 Chap. LIV. Priority over Judgments, Crown-debts, Annuities, 
 
 AND DlSENTAILMENTS. 
 
 Judgments .. .• •• .. .. -. •• •• •• 463 
 
 Crown-debts .. .. .. .. .. .. .. •• •• 465 
 
 Annuities . . . . . • . . . . . . . . . . • • 465 
 
 Judgments, Crown-debts, &c .. -.466 
 
 Disentailing Deeds .. .. .. .. .. .. .. .. 466 
 
 Chap. LV. Indisputable Titles. 
 
 Generally . • . • . . . . . . . . . . . . . . 467 
 
 Stocks and Shares . . . . . . . . . . . . . . . . 467 
 
 Transfer of the Legal estate . . . . . . . . . . . . 467 
 
 Non-registration of Beneficial Interests . . . . . . • . . . 468 
 
 Consequent position of Purchaser .. .. .. .. .. .. 468 
 
 Protection ot the Beneficial owner .. .. .- .. .. •• 469 
 
 Registration of Transmissions . . . . . . . . . • • • 469 
 
 Transfers by Married Women . . . . . . . . . • • • 470 
 
 Law Reform .. .. .. .. .. .. .. .. •• 470 
 
 Patent-rights 470 
 
 British Ships 470 
 
 Generally . . . . . . . . . . . . . . . . . . 470 
 
 What Interests are to he registered . . .. .. .. •• •• 470 
 
 Facilities for dealings at a distance from the register . . . • . . 471 
 
 Holder's powers of disposition .. .. .. .. •• •• 472 
 
 Priority of registered disposition .. .. .. .. •• •• 472
 
 TABLE OF CONTENTS. 
 
 XXXI. 
 
 Landed-Estates' Court (Ireland) 
 Generally 
 
 Priority of Landed Estates Conveyance 
 Record of Title (Ireland) 
 Generally 
 
 Mode of recording title 
 Opening and closing of the record 
 Recording of Transmissions 
 Mode of Disposition .. 
 Recording of dispositions . . . . . . 
 
 Protection of unregistered interests 
 Rights of recorded holders .. 
 Subsidiary clauses 
 Priority of recorded transactions 
 
 Recorded dealings generally 
 
 Recorded Charges amongst themselves 
 
 Land-Debentures 
 Old Land-Transfer (England) Act 
 Who may register under it, and how 
 Removal to a new register 
 Power of registered holder to dispose 
 
 When registered as Indefeasibly entitled. . 
 
 When registered simply as entitled 
 Powers of persons interested to apply for a sale with indefeasible 
 Declaration of title (England).. 
 Who may ask for 
 When the Court may grant it 
 When the Court may annul it 
 
 Effect of it 
 
 New Land-Transfer (England) Act 
 
 Who may ask for registration and in respect of what property 
 
 Under what circumstances 
 
 Subject to what Interests 
 
 Mode of Registration 
 
 Subsidiary Clauses 
 
 Tiansmission on the register 
 
 Dealings on the register 
 
 Generally 
 
 By persons under disability 
 Protection of unregistered interests 
 Priority of registered transactions 
 
 Ownership and transfer of it 
 
 Charges 
 
 Transfer of them 
 
 title 
 
 Page 
 474 
 474 
 475 
 478 
 478 
 478 
 478 
 479 
 480 
 480 
 480 
 481 
 481 
 481 
 482 
 483 
 483 
 484 
 484 
 485 
 485 
 485 
 485 
 486 
 486 
 486 
 486 
 486 
 487 
 487 
 487 
 488 
 488 
 489 
 489 
 490 
 491 
 491 
 491 
 491 
 492 
 492 
 494 
 494 
 
 Chap. LVI. Enabling a person to cause loss to another. 
 
 Plan of this and the three following chapters 
 
 Foundation of the rule 
 
 Rule, with exceptions &c. 
 
 Corollary applicable to property-law, with exceptions &c. . . 
 
 Details of the rule as regards each badge of ownership 
 
 The Legal estate 
 
 Seeming continuance of Beneficial ownership 
 
 Seeming Freedom from Incumbrances 
 
 Possession 
 
 Title-Deeds 
 
 Registration .. .. .. .. .. 
 
 495 
 
 495 
 495 
 
 496 
 497 
 497 
 497 
 498 
 498 
 500 
 503
 
 XXxii. TABLE OF CONTENTS. 
 
 Page 
 
 Memorandum on Title-deeds • . . • . . . •• . . . . 504 
 
 Written authority . . . . . . . . . . . . . . . . 504 
 
 Symbolical authority . . . . . . . . . . . . . . 504 
 
 Transfer in blank . . . . . . . . . . . . . . . 505 
 
 Actual concurrence . • • • • - • • • • . . . . . . 505 
 
 Acknowledgement that earlier inconsistent rights have ceased . . . . 505 
 
 General exception to the rule: when he to whom the indicia of ownership 
 
 are committed is Trustee . . . . . . . . . . . . . . 505 
 
 Chap. LVII. The Factors' Acts. 509 
 
 Chap. LVIII. The Bills' of Sale Acts. 
 
 Rule 512 
 
 Applicability of the rule 
 
 Conditions of the rule 
 Exceptions to the rule . . 
 Oases lying outside the rule 
 
 512 
 515 
 516 
 520 
 
 Chap. LIX. The Order and Disposition Clause. 
 
 Rule 521 
 
 Applicability of the rule . . . . . . . . . . . . ..521 
 
 Subject-matter .. .. .. .. .. .. .. ..521 
 
 Interest 522 
 
 Time of enjoyment . - . • . • . . . . . . . . . . 522 
 
 Custody .. .. 523 
 
 Various other circumstances.. .. .. .. .. .. .. 523 
 
 Conditions of the rule . . . . . . .* . . . - . . . . 524 
 
 Trading 524 
 
 Reputation of ownership &c. . . . . . . . . . . . . 524 
 
 Consent of the true owner . . . . . . . . . . . . . . 524 
 
 Exceptions . . . . . . . . . . . . . • ■ . . . 525 
 
 Winding-up .. .. .. .. .. .. .. .. .. 525 
 
 Distress . . . . . . . . . • . . . • • • . . 525 
 
 Subject-matter . . . • • • • ■ • • . . • • • • 525 
 
 Fixtures . . . . . . . . . . . . . . . . . . 525 
 
 Ship 526 
 
 Chose in action .. .. .. .. .. .. .. .. 526 
 
 Goods on Shipboard .. -. .. .. .. .. .. 526 
 
 Notoriety . . . . . . . . . . . - . . . • . . 526 
 
 Usage 527 
 
 Wife's Furniture . . . . . . . . . . . . . . . . 527 
 
 Manufacture . . . . . . . . . . . . . • . • . . 527 
 
 Hire or Loan . . . . . . . . . . . . . . . . . . 528 
 
 Right of Restitution . . . • . . . . . . . . . . . . 528 
 
 Fiduciary Possession . . . . . . . . . . . . . . . . 528 
 
 Possession conformable to title . . . . . . . . . . . . 530 
 
 Registration under the Bills of Sale Act . . . . . • • • . • 530 
 
 Withdrawal of possession or of consent . . . . . . • • . • 530 
 
 Fraudulent prevention of withdrawal of possession . . . . . . 532 
 
 Notice to and knowledge of the holder, in cases of chose in action . . 532 
 
 Supplementary matters .. .. .. .. .. .. .- -. 534 
 
 Evidence of Reputation of ownership . . . . . . • ■ . • 534 
 
 Evidence of Consent, and of withdrawal of it . • • • • • • • 534 
 
 Bills of Exchange &c. . . . . . . . . . . • • • • 535 
 
 Chap. LX. Priority depending on fraud in the disponor; Generally. 537
 
 TABLE OF CONTENTS. XXxiii. 
 
 Chap. LXI. Priority op Creditors &c. over Fraudulent 
 Conveyances. 
 
 Fraud upon Creditors and Transmittees in general . . . . . , . . 539 
 
 Rule 539 
 
 Applicability of the rule . . . . . . . . . . . . . . 539 
 
 Conditions of the rule . . . . . . . . . . . . . . 542 
 
 Exceptions to the rule . . . . . . . . . . . . . , 542 
 
 Value given for the impugned dealing . . . . . . • • . . 543 
 
 Acts done in reliance on the impugned dealing, and Value given for a 
 
 disposition derived under it . . . . . . . . . . . . 545 
 
 Meritorious consideration supporting the impugned dealing . . . . 545 
 
 Natural affection . . . . . . . . . . . . . . 546 
 
 In general . . . . . . . • . . . . . . . . 546 
 
 In case of a Policy . . ... .. .. .. .. .. 546 
 
 Charitable purpose . . . . . . . . . . . . . . 546 
 
 Preference of a particular creditor . . . . , . . . . . 546 
 
 Limitation followed by a valid limitation . . . . . . . . 547 
 
 Expenditure on the subject of a valid dealing .. .. .. .. 547 
 
 Assent to the dealing . . . . . . . . . . . . . . 548 
 
 Principles subordinate to the rule .. .. .. .. .. .. 548 
 
 Circumstances evidentiary or not of intention &c. to embarrass creditors 548 
 
 Generally . . . . . . . . . . . . . . . . 548 
 
 Presumptive . . . . . . . . . . . . . . . . 548 
 
 Excess of the debts above the assets .. .. ... .. 548 
 
 Large indebtedness . . . . . . . . . . . , . . 549 
 
 Contemplated Indebtedness or Trading . . . . . . . . 549 
 
 Limitation, to cease on seizure by creditor . . . . . . . . 550 
 
 Subsequent dissipation of the debtor's remaining assets .. . , 550 
 
 Continuance in possession . . . . . . . . . . . . 550 
 
 Tendency to defraud purchasers .. .. .. .. ..551 
 
 Inadequacy of consideration .. .. .. .. .. 551 
 
 Excessive amount of the subject of settlement .. .. .. 551 
 
 Not presumptive .. .. .. .. .. .. .. 551 
 
 Retention of Title deeds .. .. .. .. ..... 551 
 
 Reservation of maintenance depending on trustee's discretion .. 551 
 Slight indebtedness .. .. .. .. .. .. ..551 
 
 Circumstances evidentiary of complicity in a design to defraud creditors 552 
 Nature and sufficiency of Value, in questions relating to the priority of 
 
 creditors and purchasers . . . . . . . . . . . . 552 
 
 In general .. .. .. .. .. .. .. ... 552 
 
 In particular . . . . . . . . . . . . . . . . 553 
 
 Presumption of stipulation for limitation to strangers or collaterals in a 
 
 settlement . . . . . . . . . „ . . . . . . 556 
 
 Generally .. .. .. .. .. .. ... .. 556 
 
 On Mutual dealings . . . . . . . . . . . . . . 556 
 
 Limitation in consideration of Marriage only . . . . . . . . 558 
 
 Separation deed . . . . . . . . . . . . . . 560 
 
 Limitation inserted by Mistake . . . . . . . . . . 560 
 
 Frauds upon Particular kinds of Transmittees .. .. .. .. 561 
 
 On Marital rights • 561 
 
 On Solicitor's lien .. .. .. .. .. .. .. .. 561 
 
 On Landlord, by Execution-creditor .. .. .. .. ..562 
 
 On Ecclesiastic claiming for Dilapidations .. .. .. .. 562 
 
 On Surety . . . . . . . . . . . . . . . . . . 562 
 
 On creditors of Tradesman in Ireland . . . . . . . . . . 562 
 
 On creditors by Judgment &c. .. 562 
 
 V.
 
 XXXIV, TABLE OF CONTENTS. 
 
 POffi 
 
 On creditors of Banker . . .. .. .. .. .. .. 562 
 
 On Execution-creditors and Sequestrators in Ireland . . . . . . 563 
 
 Chap. LXII. Priority of Bankruptcy- Liquidation- and Winding- 
 up- -creditors. 
 
 Introductory .. .. •• •• •• . . ». •• •• 564 
 
 Canons . . • • • • . • • . • • • • • • • • 564 
 
 First Canon: Bankruptcy- &c- creditors displace dealings unfairly preju- 
 
 dicial to them . . • . . . . . . • . . . . • • 564 
 
 Second Canon: Bankruptcy- &c- creditors overreach by relation all 
 
 transactions subsequent to some specified occurrence . . • • • • 565 
 
 Statement of the canon . . . . . . . . . . . . . • 565 
 
 Generally . . . . . • . . • • . . • . . • 565 
 
 As applicable to bankruptcy- and liquidation- creditors .. .- 565 
 
 As applicable to winding-up-creditors . • . . - . . • 567 
 
 Subordinate points . . . . . . . . . . . . . . 568 
 
 Acts of Bankruptcy specified .. .. .. .. .. . . 568 
 
 Claim of bankruptcy- &c- creditors upon proceeds of Execution . . 569 
 
 Exceptions to the above canons .. .. .. .. .. .. 571 
 
 First: The King disponee .. .. .. .. .. .. ..571 
 
 Second: Value rendered for the transaction .. .. ... ..571 
 
 In general . . •• •• .. .. . • .. .. ..571 
 
 In case of a Ship . . . . . . . . . . . . . . . . 574 
 
 Digression: Notice of an act of bankruptcy .. .. .. .. 574 
 
 What constitutes it .. .. .. .. .. .. .. 574 
 
 From whom it is imputed .. .. .. .. .. .. 575 
 
 Third: Carrying on of the debtor's business, the purpose of the dealing 575 
 
 Fourth: Distress for rent .. .. .. .. .. .. .. 579 
 
 Fifth : Assent to, or acquiescence in, the act of bankruptcy . . . . 580 
 
 Sixth : Omission to register the Certificate . . . . . . . . 580 
 
 Last: Composition-resolutions .. .. .. .. .. ..581 
 
 Subordinate rules : Bankruptcy- &c. -creditors are entitled to priority over . . 581 
 First: Trust-disposition lor creditors generally .. .. .. ..581 
 
 Second : Disposition in fraud of bankruptcy-creditors . . . . . . 582 
 
 Rule &c 582 
 
 Presumptions of such fraud .. .. .. .. .. .. 583 
 
 Third: Cessio bonorum .. .. ... .. .. .. .. 585 
 
 Fourth: Limitation over on bankruptcy .. .. .. .. 587 
 
 Fifth: Attornment clause; and power to distrain .- .. .. 589 
 
 Sixth: Fraudulent preference .. .. .. .. .. .. 590 
 
 Rule &c 590 
 
 Digression as to spontaneity . . . . . . . . . . . . 595 
 
 Seventh: Voluntary settlement . . .. . .. .. .. 597 
 
 Eighth : Contract to settle on wife or children . . . . . . . . 598 
 
 Ninth: Judgment .. .. .. .. .. .. .. .. 598 
 
 Tenth : Quasi-Partnership . . . . . . . . . . . . . . 600 
 
 Eleventh: Extent, in Ireland .. .. .. .. .. .. 600 
 
 Twelfth: Defect in the proceedings, in Ireland .. .. .. .. 600 
 
 Last: Grounds of priority discussed in previous chapters .. .. 600 
 
 Chap. LXIII. Priority of Purchasers &c. over fraudulent con- 
 veyances. 
 
 Rule 601 
 
 Applicability of the rule .. .. .. .. .. .. .. 601 
 
 Remedy sought 601
 
 TABLE OF CONTENTS. 
 
 XXXI - 
 
 Tenure 
 
 Disponor's Interest 
 
 Disponor's Status 
 
 Nature of preferred dealing 
 
 Proportion of property comprised in it 
 
 Nature of preferred property 
 
 Nature of preferred interest 
 
 Preferred Interest acquired from a trustee . . 
 
 Notice affecting the preferred disponeo 
 
 Action pending 
 
 Nature of the impugned dealing 
 
 Impugned disponee .. 
 Conditions of the rule 
 
 Subject matter 
 
 Nature of the preferred dealing 
 
 Nature of the impugned interest 
 Fradulent 
 Gratuitous 
 Revocable 
 Exceptions to the rule 
 
 Interest which the disponor had not 
 
 Transmission 
 
 Deposit 
 
 Value 
 
 Meritorious consideration 
 
 Assent to the dealing 
 Points subordinate to the rule 
 
 Circumstances evidentiary of intention &c. to defraud purchasers &c. 
 
 Circumstances under which a disposition is displaceable because 
 gratuitous 
 
 Circumstances under which a disposition is displaceable because 
 revocable 
 
 Page 
 601 
 601 
 601 
 601 
 602 
 692 
 602 
 603 
 603 
 603 
 603 
 604 
 604 
 604 
 604 
 605 
 605 
 605 
 605 
 605 
 605 
 605 
 605 
 606 
 606 
 606 
 606 
 606 
 
 607 
 
 607 
 
 Apfendix. Personal equities as operating on indefeasible titles. 
 
 Injustice of granting indefeasible titles 
 Generally 
 
 Exemplified by cases 
 Anon. 
 
 Tottenham's estate 
 Cases compared 
 Section of the Landed Estates (Ir.) Act by which indefeasible titles 
 granted 
 Its wording 
 Its effect 
 Generally.. 
 
 What claims against the land are barred by it 
 Generally 
 Rights 
 
 Titles 
 
 Charges 
 Incumbrances . 
 What claims against the person are barred by 
 Nature of these claims 
 They form a ground of equitable relief 
 (I.) Against the person 
 
 Ap. 
 
 VI 
 
 vi 
 
 vii 
 vii 
 viii 
 viii 
 viii 
 x 
 
 Xll 
 
 xii
 
 XXXVi. TABLE OF CONTENTS. 
 
 Page 
 
 (2.) Through the person against the land .. .. .. xiv 
 
 Decisions on this subject in general . . • • • • • • • • xv 
 
 Result of these decisions . . . • • • . • • • . . xix 
 
 Decisions on this subject arising under the Landed Estates Act . . xx 
 
 Result of these decisions . . • . . . . • • • . . xx 
 
 Section of the Landed Estates (Ir.) Act by which informalities are cured xx 
 
 Its wording . . . . . . . . . . . • . . . . . . xxi 
 
 Its effect xxi 
 
 Decisions on this section . . . . . . . . • • . . . . xxii 
 
 Result of these decisions.. .. .. .. .. .. .. xxiv
 
 (xxxvii.) 
 
 LIST OF STATUTES CITED. 
 
 [In this table "110,-2 "means "110 and 112"; and " 110-2 " means " 110 to 112" that is "110. 
 Ill, and 112"; and so in like cascB.] 
 
 
 
 Page 
 
 
 Page 
 
 9 Hen. Ill, c. 16 
 
 . Ad ; 
 
 s. 5 
 
 . . 543, -4 
 
 7 Ed. I. st. 2 
 
 
 278 
 
 c. 7 
 
 392 
 
 13 Ed. I., o. 1 
 
 
 49 
 
 c. 10, s. 3 
 
 562 
 
 c. 32 
 
 
 278 
 
 c. 14 .. 
 
 365 
 
 c. 34 
 
 
 44-5 
 
 18 EL, c. 6 .. 
 
 27 EL, c. 3, s. 1, 2, .. 
 
 370 
 363 
 
 2L Ed. Ill, c. 5 
 
 
 273 
 
 4, .. 
 
 343, 554, -6 
 
 28 Ed. Ill, c. 11 
 
 
 206 
 
 s. 1 
 
 ..-601-4,-7 
 
 31 Ed. Ill, c. 1, s. 11 
 
 
 152 
 
 s. 2 
 
 . . 602-4, -7 
 
 15 Rich. II, c. 5 
 
 
 278 
 
 s. 4 
 s. 5 
 
 543, 605,-6 
 608-9 
 
 1 Hen. IV, c. 6 
 
 
 369 
 
 s. 6 
 
 603,-5,-6,-8 
 
 2 Hen. IV, c. 2 
 
 
 369 
 
 s. 12 .. 
 
 601 
 
 6 Hen. IV, c. 14 
 
 
 369 
 
 31 EL, c. 6, s. 6 -8, 10 
 39 EL, c. 5 .. 
 
 204 
 279 
 
 1 Rich. Ill, c. 7 
 
 
 352 
 
 s. 1 (5).. 
 43 EL, c. 4 .. 
 
 277 
 275 
 
 4 Hen. VII, c. 14 .. 
 
 
 369 
 
 1 Ja. I., c. 15 
 
 392 
 
 4 Hen. VIII, c. 24 . . 
 
 
 352 
 
 7 Ja. I., c. 15 
 
 . . Ad. 208 
 
 6 Hen. VIII, c. 15 .. 
 
 
 369 
 
 21 Ja. I., c. 1 
 
 279 
 
 21 Hen. VIII, c. 10, s. 2 . 
 
 
 275 
 
 c. 16 
 
 25 
 
 s. 4, 5. 
 
 
 276 
 
 c. 19 
 
 410 
 
 27 Hen. VIII, c. 10 preambl 
 
 e 
 
 373 
 
 s. 11 
 
 .. 392, 521 
 
 c. 10 76, 109.-58, 
 
 213, 
 
 
 
 326, 437, Ai 
 
 . XV. 
 
 10 Cha. I. (Ir.) sess. 2, c 
 
 1 .. 375,-94 
 
 s. 1 
 
 437, 
 
 -8,-9 
 
 c. 3 
 
 539, -40,-56 
 
 s. 2 
 
 
 439 
 
 s 1 
 
 601-4 
 
 s. 3 
 
 . 437,-8 
 
 8. 3 
 
 543, 605,-6 
 
 c. 16 .. 
 
 . 76 
 
 394 
 
 s. 4 
 
 608-9 
 
 28 Hen. VIII, c. 11, s. 7, 8 . 
 
 
 369 
 
 8. 5 
 
 .. 603,-5,-8 
 
 29 Hen. VIII, c. 39, s. 75-6 
 
 '. Ad 
 
 169 
 
 s. 10 .. 
 
 539, -40, -42 
 
 31 Hen. VIII, c. 1 .. 
 
 . 276 
 
 365 
 
 s. 14 .. 
 
 .. 543,-4 
 
 32 Hen. VIII, c. 2 . . 
 
 
 25 
 
 15 Cha. II, c. 7, s. 8.. 
 
 415 
 
 c. 9, s. 2 
 
 
 207 
 
 22-3 Cha. II, c. 10, s. 5, 
 
 6 .. 34 
 
 s. 3 
 
 
 206 
 
 s. 7 
 
 34-5 
 
 s. 4 
 
 
 207 
 
 29 Cha. II, c. 3 
 
 125 
 
 c. 15 .. 
 
 
 232 
 
 s. 1 
 
 180, -2, -3 
 
 c. 28 .. 
 
 
 368 
 
 3. 2 
 
 180, 424 
 
 s. 4, 8 . 
 
 
 369 
 
 s. 3 
 
 180-4, 424 
 
 c. 32 .. 
 
 . 276 
 
 ,365 
 
 s. 4 
 
 178-83, 189 
 
 c. 34 .. 157,- 
 
 -70,-2 
 
 208 
 
 8. 5 
 
 179, 183 
 
 c. 39 . . 
 
 
 350 
 
 s. 7 
 
 124, -80,- 
 
 34-5 Hen. VIII, c. 5, s. 14 . 
 
 
 139 
 
 s. 8 
 s. 9 
 
 124,-3 J 
 
 .. 180-3 
 
 5 EL, c. 26 
 
 
 394 
 
 s. 10 
 
 429 
 
 13 EL, c. 4 
 
 . 335 
 
 ,-63 
 
 s. 12 
 
 213 
 
 s. 1 
 
 
 371 
 
 s. 16 .. 
 
 .. Ad. 334 
 
 c. 5 ..514, -22, -6, -39, -4C 
 
 ,-56 
 
 s. 17 .. 
 
 179, -80, -3 
 
 s 2 
 
 .39,40,-2 
 
 s. 18 .. 
 
 465
 
 XXXV111. 
 
 LIST OF STATUTES CITED. 
 
 s. 25 
 
 1 Ja. II, c. 17, s. 7 .. 
 
 1 Wm. & M., c. 16 -. 
 
 7 Wm. IV., (Ir.\ c. 12, s 
 7-8 Wm. Ill, c. 37 .. 
 12-3 Wm. Ill, c. 13 .. 
 1 Ann. c. 1, s. 5 
 
 st. 2, c. 7, s. 5 
 2-3 Ann. c. 4 
 
 s. 1 
 
 8. 7, 8, 12 
 
 s. 16 
 
 s. 17, 18 
 
 s. 20, 21 
 C 11, s. 4, 5 
 c. 20, s. 4, 5 
 3-4 Ann. c. 8, 9 
 5 Ann. c. 18 . . 
 
 s. 1, 3 
 
 S. 4 
 
 s. 5, 9 
 
 s. 10 
 
 Page 
 34 
 
 35 
 
 205 
 
 7 420 
 278 
 279, 368 
 369 
 369 
 405 
 
 .. 407, -9 
 432 
 
 409,-11,-2 
 432 
 411 
 279 
 279 
 
 .. 156, 425 
 
 394, 405, Ad. 414 
 
 432 
 
 .. 408, -10 
 
 432 
 
 432, Ad. 414 
 
 6 Ann. (Ir.), c. 2, s. 4 396, 405, -9, 562 
 
 6 Ann. c. 20 
 
 6 Ann. c. 35 
 
 s. 5 . . . . 409 
 s. 14 .. .. 411 
 s. 6,7, 15 .. 431 
 394, Ad. 414 
 s. 1, 3, 5, 9 .. 432 
 s. 10 .. 432, Ad. 414 
 405 
 
 s. 1 . . . . 407,-9 
 s.2, 10-3, 16-8,20-2,27, 
 
 31,34 
 s. 14,-5 .. 
 s. 19 
 s. 29 
 
 s. 34 .. 
 c. 62 
 s. 1 
 
 s. 2, 10-13 
 6. 14-5 .. 
 s. 19 
 
 s. 20-2 . . 
 s. 27 
 s. 29 
 s.31 
 s. 34 
 7 Ann. c. 18 .. 
 
 c. 20, s. 1 .. 
 s. 5-7 . . 
 s. 8, 10 .. 
 s. 16 .. 
 s. 17 .. 
 s. 18 .. 
 
 432, Ad. 414 
 
 411 
 
 .. 408,-10 
 
 409-11,-2 
 
 . . 405,-8 
 
 405 
 
 . . 407,-9 
 
 432 
 
 411 
 
 .. 408,-10 
 
 432 
 
 432, Ad 414 
 
 ..409,-1,-2 
 
 432 
 
 .. 405,-8 
 
 365 
 
 . . 405,-7,-9 
 
 432 
 
 411 
 
 432, Ad. 414 
 
 409,-11,-2 
 
 408,-10,-32 
 
 Page 
 
 s. 19 .. .. 432 
 
 8 Ann. (Ir.), c. 10, s. 1, 2, 3, 431 
 
 8 Ann. c. 14, s. 1 .. .. 562 
 
 c. 18, s. 1 .. .. 662 
 
 10 Ann. c. 18 369 
 
 c. 28 . . . . 369 
 
 13 Ann. c. 12, s. 2 .. .. 204,-5 
 
 1 Geo. I st. 2, c. 10, s. 13 .. 364 
 
 8 Geo. I (Ir.), c. 15, s. 3 .. 414,-31 
 
 562 
 5 .. 414 
 
 405,-7-10, 562 
 
 18-25 432 
 
 411 
 
 .. Ad. 414 
 
 408 
 
 409,-11,-2 
 
 432 
 
 274 
 
 135 
 
 136 
 
 539 
 
 279 
 
 52 
 
 213 
 
 12 .. 279 
 
 191 
 
 ..279, 368 
 
 279 
 
 s. 2, 3 562,-3 
 
 563 
 
 5 Geo. Ill, c. 17 .. .. 369 
 
 9 Geo. Ill, c. 16, s. 1 .. 24 
 12 Geo. Ill, c. 67, s. 1 .. 279 
 15 Geo. Ill, c. 24, s. 1 .. 279 
 18 Geo. Ill, c. 29 .. .. 369 
 25 Geo. Ill, c. 35 .. .. Ad. 169 
 
 c. 47, s. 2.. .. 431 
 
 31 Geo. Ill, c. 32, s. 17 .. 275,-8 
 
 39-40 Geo. Ill, c. 38 . . 369 
 
 c. 98 .. .. 273 
 
 s. 1 .. .. 272,-3 
 
 s. 2, 4 .. .. 272 
 
 43 Geo. Ill, c. 107 .. .. 136 
 
 s.2 .. .. 364 
 
 46 Geo. Ill, c. 71 .. .. 368 
 
 46 Geo. Ill, c. 135 .. .. 392 
 
 48 Geo. Ill, c. 113 .. .. 365 
 
 c. 135 .. .. 392 
 
 50 Geo. Ill, c. 33 .. .. 368 
 
 53 Geo. Ill, c. 79 .. .. 368- 
 
 c. 92 .. .. 369 
 
 c. 127, s. 5 .. 24 
 
 55 Geo. Ill, c. 184, s. 37 .. 37 
 
 5 Geo. 
 
 II, 
 
 c. 4, s 
 
 10 
 
 8 Geo. 
 
 II (Ir), c. 
 
 2, s. 
 
 8 Geo. 
 
 II, 
 
 c. 6, s. 
 
 1 
 
 
 
 s. 2, 
 
 11-4, 
 
 
 
 s. 15, 
 
 17 
 
 
 
 s. 32 
 
 
 
 
 s. 33 
 
 
 
 
 s. 34 
 
 
 
 
 s. 36 
 
 
 9 Geo. 
 
 II, 
 
 C. 26 
 
 
 
 c. 36, s 
 
 1-3 
 
 
 
 s. 4, 
 
 5 .. 
 
 11 Geo 
 
 II, 
 
 c. 19, 
 
 s. 1 
 
 13 Geo 
 
 II, 
 
 c. 29 
 
 
 14 Geo 
 
 II, 
 
 C. 20 
 
 s. 9 
 
 
 18 Geo 
 
 II, 
 
 c. 15, 
 
 s. 1, 
 
 25 Geo 
 
 II, 
 
 c. 6, s 
 
 . 1 
 
 
 c 
 
 . 42 
 
 
 26 Geo 
 
 II, 
 
 c. 22, 
 
 s. 14 
 
 33 Geo 
 
 II 
 
 (Ir.), c 
 s. 6 
 
 14,
 
 LIST OF STATUTES CITED. 
 
 XXXIX. 
 
 
 Page 
 
 c. 192, s. 1 
 
 423 
 
 58 Geo. Ill, c. 45, s. 34-6 
 
 368 
 
 s. 51 
 
 363 
 
 59 Geo. Ill, c. 135, s. 34 
 
 363 
 
 3 Geo. IV, c. 39, s. 1, 2 
 
 599 
 
 c. 63, s. 12-3 
 
 369 
 
 s. 34 
 
 363 
 
 c.116 
 
 431 
 
 s. 6 
 
 405 
 
 4 Geo. IV, c. 82, s. 2 
 
 396 
 
 c. 86, a. 10 
 
 368 
 
 5 Geo. IV, c. 39, s. 3 
 
 279 
 
 c. 103, s. 14 
 
 441 
 
 6 Geo. IV, c. 16, s. 72 
 
 521 
 
 c. 18 
 
 369 
 
 c. 83 
 
 509 
 
 s. 1 
 
 .. 509,-11 
 
 c. 94, s. 1 . . 
 
 509,-10,-1 
 
 s. 2, 4 
 
 .. 509,-10 
 
 s. 5 .. 396, 509,-10 
 
 c. 105, s. 5 
 
 363 
 
 s. 13 
 
 334 
 
 c. 106, s. 7 
 
 334 
 
 7 Geo. IV, c. 57, s. 1 1 
 
 392 
 
 s. 30 
 
 392 
 
 9 Geo. IV, c. 14, s. 1 
 
 179 
 
 c. 24 
 
 .. 156,425 
 
 c. 39, s. 1, 3 
 
 599 
 
 c. 85 
 
 135 
 
 c. 94 
 
 205 
 
 10 Geo. IV, c. 50 .. 
 
 369 
 
 s. 45 
 
 368 
 
 11 Geo. IV & 1 Wm. IV, c. 
 
 47 168,-9, 
 
 
 365 
 
 s. 2 
 
 168 
 
 s. 6, 7, 8, 
 
 .. 168,-9 
 
 s. 9 
 
 168 
 
 o. 65 
 
 365 
 
 S. 11 sqq. 
 
 367 
 
 2-3 Wm. IV, c. 57, s. 3 
 
 441 
 
 C. 71, s. 1-4 
 
 .. 25, 31 
 
 s. 4 sqq. 
 
 25 
 
 s. 5 
 
 31 
 
 s. 6 
 
 30 
 
 s. 7 
 
 31 
 
 c. 87, s. 29 
 
 431 
 
 c. 100 
 
 24 
 
 3-4 Wm.IV, c. 9, s. 1, 2 
 
 279 
 
 c. 27, s. 1, 2 
 
 25 
 
 s. 3-6 . . 
 
 25,-7 
 
 s. 7, 8 .. 
 
 25,-6 
 
 s 9-11, .. 
 
 25 
 
 s. 12, 13, 
 
 25,-6 
 
 s. 14-24.. 
 
 25 
 
 s. 25.. 
 
 25 Ad. 28 
 
 26, 27 
 28 .. 
 
 32 
 
 s. 
 s 29 
 
 s. 30 
 s. 31 
 
 s. 33 .. 
 
 s. 34 
 
 s. 39 
 
 s. 40 
 . 42, s. 5.. 
 .74, s. 1.. 
 
 s. 2 
 
 s. 14 
 
 8. 15, 50-2, 
 
 s. 16, 18 
 
 s. 19 
 
 8.20 .. 
 
 s. 21 
 
 s. 22 
 
 8. 23-33.. 
 
 8. 24-32.. 
 
 s. 34 
 
 s. 35 
 
 s. 36 
 
 s. 37 
 
 s. 38 
 
 s.39 
 
 s. 40 
 
 s.41 
 
 s. 43 
 
 s. 44-6 . 
 
 b. 47, 48 
 
 s. 49 
 
 s. 50 . 
 
 s. 54 . 
 
 s. 55 . 
 
 s. 56 . 
 
 6. 57 . 
 
 s. 58 
 
 s. 59 
 
 S. 60, 61 
 
 s. 62 
 
 s. 63 
 
 s. 64, 65 
 
 s. 66, 69 
 
 s. 71 . 
 
 s. 72 
 
 s. 73 . 
 
 s. 74 . 
 
 s. 75 
 
 s. 77 . 
 
 s. 78 . 
 
 8. 79-83. 
 
 s. 84 . 
 
 s. 90-1 . 
 
 50, 
 
 Page 
 
 25 
 
 26 
 
 24 Ad. 28 
 
 28 
 
 25 
 
 .. 25, 474 
 
 25 
 
 ..232,382 
 
 26 
 
 179 
 
 .. 52,372 
 
 .. 351,-82 
 
 . . 232, 382 
 
 251,-60, 372,-3 
 
 373 
 
 .. 52,372 
 
 52 
 
 .. 51,373 
 
 51, 126, 373 
 
 .. 51, 373 
 
 51 
 
 .. 51, 373 
 
 373 
 
 .. 196, 373 
 
 ..•124, 373 
 
 52, 354,-72,-3 
 
 .. 51, 373 
 
 127, 261, 373 
 
 .. 251, 373 
 
 50, 127, 373 
 
 .. 127, 373 
 
 .. 126, 373 
 
 .. 127, 373 
 
 . . 372,-3 
 
 .. 127, 373 
 
 372 
 
 . . 372,-3 
 
 372 
 
 .. 126, 373 
 
 .. 127, 373 
 
 373 
 
 .. 354,373 
 
 564 
 
 373 
 
 .. 127, 373 
 
 .. 127,372 
 
 . . 372,-3 
 
 373 
 
 127 
 
 466 
 
 140 
 
 52 
 
 140 
 
 141 
 
 140
 
 xl. 
 
 LIST OF STATUTES CITED. 
 
 c. 104 
 
 c. 105 
 
 8. 2 
 
 s. 3 
 
 s. 4, 5, 11 
 c. 106 
 
 s. 2 
 
 s. 3 
 
 s. 5 
 
 s. G-10 .. 
 
 s. 14 .. 
 1-5 Wm. IV, c. 92, s. 63 
 
 s. 64 
 
 s 65 .. 
 
 s. 66 
 
 s. 69 J . 
 5-6 Wm. IV, c. 17 .. 
 c. 55 
 
 c. 69, s. 7.. 
 c. 76 
 
 s. 94 . . 
 
 s. 139 .. 
 6-7 Wm. IV, c. 20 
 
 c. 32, s. 5 . . 
 c. 77, s. 1 .. 
 
 s. 26 
 c. 104, s. 2 
 
 s. 3 
 c. 115, s. 30, 31 
 7 Wm. IV-1 Vic. c. 26, s. I 
 
 Parje 
 
 168 
 
 43 
 
 45 
 
 43 
 
 57 
 
 45 
 
 45,-6 
 
 45, 240 
 
 57 
 
 47 
 
 57 
 
 372 
 
 372,-3 
 
 373 
 
 466 
 
 52 
 
 367 
 
 Ad. 169 
 
 278 
 
 274 
 
 369 
 
 3G3 
 
 369 
 
 442 
 
 278 
 
 363 
 
 369 
 
 363 
 
 364 
 
 423 
 
 s. 3 
 
 s. 6 
 s. 8 
 s. 9 
 s. 10 
 s. 11 . 
 s. 14 . 
 s. 15 
 s. 21 . 
 s. 28 . 
 s. 32 . 
 s. 33 . 
 s. 34, 35 
 c. 28 
 
 123, 207,-25, 
 
 -32,-64, 423,-8 
 
 .. 32, 213 
 
 139 
 
 .123,-79,-80,-3 r 4 
 
 123,-79, 430 
 
 179 
 
 123 
 
 101 
 
 123 
 
 239 
 
 82 n. (i) 
 
 68, 82 n. (i) 
 
 123 
 
 26 
 
 1-2 Vic, c. 31 .. •• 363 
 
 c. 95, s. 4 . . . . 369 
 
 c. 107, s. 8, 9 . . 368 
 
 c. 110, s. 11 334,-5,-90,464 
 
 s. 12 .. .. 541 
 
 s. 13 . . 335,-8,-53,-96, 
 
 420,-64,-99 
 
 s. 14 .. ..335,419 
 
 s. 16 .. .. 335,464 
 
 s. 18 .. 334,463,-4 
 
 335 
 
 s. 19, 21 
 s. 21, 22 
 
 8.113 .. 
 
 2-3 Vic, c. 11, s. 2, 3, 4 
 
 s. 5 
 
 s 6 
 
 s. 7 
 
 s. 8 
 c. 35, s. 22 
 C. 49, s. 15,-6, &c 
 c. 60 
 
 s.19 .. 
 3-4 Vic, c 82, s. 1 . . 
 
 s. 2 
 C. 93, s. 10 
 c 96, s. 13 
 
 s. 67 
 c. 105, s. 12 
 
 s.13 .. 
 
 s. 19 .. 
 
 s. 20 .. 
 
 s. 21 .. 
 
 s. 22 
 
 s 25 .. 
 
 s.27 .. 
 
 s. 28 
 
 s. 30 .. 
 c. 108 
 0. 113, s. 49 
 
 s. 69 
 
 s. 70 
 4-5 Vic, c. 35, s. 81, 82, 
 
 s. 97 
 c 38 
 
 s.14 .. 
 
 s.19 -. 
 c 39, s. 4 . . 
 
 s.13 .. 
 
 s.17 .. 
 
 s. 18 .. 
 
 s. 21-6, 29 
 c 96, s. 100 
 5 Vic, c 22 . . 
 6-6 Vic, c 18 
 c 22 
 c 26, s. 1 . . 
 
 s. 3 
 
 s. 7 
 
 8.12 .. 
 
 s.13 .. 
 c. 27 
 c. 39 
 
 s. 1 
 
 s. 2, 3 
 
 s. 4 
 c. 45, s. 13,-4,22. 
 c. 89 
 
 rat/c 
 463 
 334 
 361 
 463 
 420, 464 
 465 
 74, 343 
 465 
 465 
 364 
 
 168, 365 
 363 
 335 
 
 417,463 
 546 
 
 Ad. 365 
 599 
 599 
 
 334,464 
 541 
 
 169, 464 
 , 420,-64 
 
 464 
 
 334, 463,-4 
 
 463 
 
 334, 463 
 
 369, 441 
 
 441 
 
 366,-8,-70 
 
 366,-70 
 
 18 
 
 369 
 
 368 
 
 366 
 
 363 
 
 441 
 
 279 
 
 441 
 
 369 
 
 369 
 
 389 
 
 365 
 
 366 
 
 365 
 
 369 
 
 363,-4 
 
 369 
 
 368 
 
 363,-4 
 
 364 
 
 509 
 
 510,-1 
 
 511 
 
 509,-10,-1 
 
 426 
 
 47.6, Ap. vii
 
 LIST OF STATUTES CITED. 
 
 Xli. 
 
 
 Page 
 
 
 
 Page 
 
 s. 24 
 
 426 
 
 11-2 Vic. 
 
 c 4, s. 5 
 
 408 
 
 c. 98 
 
 368 
 
 
 c. 13 
 
 3C8 
 
 c. 108 
 
 . . 364,-9 
 
 
 0. 45, s. 29, 68 
 c. 87 
 
 408 
 365 
 
 6-7 Vic, c. 54, s. 3 . . 
 
 24,-5 
 
 
 c 99, s. 6-8 
 
 368 
 
 c. 66 
 
 .. 141, 599 
 
 
 c 120, s. 12 
 
 343 
 
 c. 93, 6. 9 . . 
 
 369 
 
 
 s. 13 .. 
 8.14 .. 
 
 465 
 276 
 
 7 Vic, c. 12, s. 8, 9,.. 
 
 426 
 
 
 
 
 
 
 12-3 Vic. 
 
 c 49 
 
 368 
 
 7-8 Vic, c. 37 
 
 368 
 
 
 c. 59, s. 5 . . 
 
 414 
 
 c. 65, s. 26 
 
 368 
 
 
 c 77, s. 27, 
 
 . . 475.-6,-7 
 
 c. 90 
 
 599 
 
 
 s. 28 
 
 476 
 
 s. 2, 3, 4, 7, 
 
 463 
 
 
 s. 43-7 . . 
 
 475 
 
 s. 8 
 
 . . 463,-4 
 
 
 s. 49 
 
 476 
 
 s. 9 
 
 468 
 
 
 c. 95 
 
 . . 335, 420 
 
 s. 10 .. 
 
 . . 343,-4 
 
 
 s. 2 
 
 464 
 
 c. 96 
 
 566 
 
 
 s. 7, 8 .. 
 
 463 
 
 c. 97, s. 14, 15 
 
 465 
 
 
 c. 100 
 
 369 
 
 s. 16 .. 
 
 415 
 
 
 s. 10, .. 
 
 370 
 
 c. 101, s. 73 
 
 136 
 
 
 s. 11 
 
 370 
 
 c. 105, s. 71 sqq 
 
 24 
 
 
 s. 13 .. 
 s. 14 .. 
 
 370 
 
 370, 408,-14 
 
 8-9 Vic, c 10 
 
 Ap. x 
 
 
 c. 104, s. 17-8 
 
 463 
 
 c. 15, s. 8.. 
 
 465 
 
 
 c. 105 
 
 .. 369, 475 
 
 c. 16, 6. 14, 15, 
 
 426 
 
 
 c 106 
 
 .. 566,-82 
 
 s. 18 .. 
 
 469 
 
 
 s.125 .. 
 
 392 
 
 s. 20 
 
 468 
 
 
 s. 135 . . 
 
 599 
 
 c. 18 
 
 370 
 
 
 s. 229-34 
 
 582 
 
 s. 15 .. 
 
 369 
 
 
 s. 141-2 
 
 392 
 
 s. 127 . . 
 
 366 
 
 
 8. 143 . . 
 
 . . 407,-8 
 
 c. 56, s. 6.. 
 
 370 
 
 
 
 
 c. 70, 8. 13 
 
 441 
 
 13-4 Vic 
 
 , C 21, s. 4 
 
 573 
 
 c. 106, s. 2 
 
 .. 423,-4 
 
 
 c 29, s. 1 . . 
 
 335, 408,-64 
 
 8.3 
 
 424 
 
 
 8.2 
 
 . . 335, 408 
 
 s. 4 
 
 78, 149, 352 
 
 
 8. 3 
 
 464 
 
 s. 5 
 
 215 
 
 
 s. 5 
 
 . . 343, 408 
 
 s. 6 
 
 140, 207,-25, 
 
 
 s. 6 . . 334,-5 408,-20 
 
 
 382, 424 
 
 
 s. 7 
 
 .. 335,-20 
 
 s. 8 
 
 ..263, 382 
 
 
 s. 8 
 
 602 
 
 s. 9 
 
 ..159, 208 
 
 
 s. 9 
 
 414 
 
 0. 112, 
 
 382, 403,-42 
 
 
 6.10 .. 
 
 . . 334, 408 
 
 c. 118, s. 134-6, 142-4,.. 364 
 
 
 s. 12 .. 
 
 465, Ad. 335 
 
 
 
 
 c. 35, s. 17 
 
 342 
 
 9-10 Vic, c. 3, s. 31-50 
 
 368 
 
 
 c. 43, s. 12 
 
 370 
 
 s.51 .. 
 
 . . 365,-8 
 
 
 c. 60 
 
 441 
 
 C. 4, s. 1 
 
 370 
 
 
 s. 15 .. 
 
 261 
 
 c. 80, s. 5 . . 
 
 365 
 
 
 s. 45 .. 
 s. 46, 47 
 
 441 
 
 261 
 
 10-11 Vic, c. 11, s. 9 
 
 426 
 
 
 c 72 
 
 405 
 
 c. 32 
 
 476, Ap. vii 
 
 
 c. 83, s. 27 
 
 366 
 
 s. 21 .. 
 
 414 
 
 
 c. 94, s. 6 . . 
 
 441 
 
 s. 22 
 
 369 
 
 
 
 
 6.35 .. 
 
 370 
 
 14-5 Vic 
 
 , c 7 
 
 368 
 
 c. 34 
 
 370 
 
 
 c 24 
 
 368 
 
 C.46 
 
 369 
 
 I 
 
 c. 25, s. 3 . . 
 
 6 
 
 VI.
 
 xlii. 
 
 LIST OF STATUTES CITED. 
 
 
 Page 
 
 
 
 Page 
 
 c. 42 
 
 441 
 
 c 82, s. 11 
 
 . 
 
 441 
 
 o. 57, s. 89 
 
 .. 408,-14 
 
 8.13 .. 
 
 . 
 
 370 
 
 o. 70 
 
 370 
 
 c 90 
 
 . 
 
 131 
 
 c. 97, s. 28 
 
 441 
 
 o. 104, s. 2 
 s. 18 .. 
 
 • 
 
 470 
 . 471,-2 
 
 15 Vic, c. 25, s. 1 .. 
 
 5 
 
 8.19 .. 
 s. 30-6 . . 
 
 • 
 
 . 384, 470 
 471 
 
 15.6 Vic, c. 12 
 
 426 
 
 s. 37 
 
 . 
 
 470 
 
 o. 16, s. 207 
 
 74 
 
 6. 38-40.. 
 
 . 
 
 471 
 
 c. 24 
 
 123,-82,-4 
 
 8. 43 
 
 179, 
 
 216, 427, 
 
 C 51, s. 42 
 
 .. 353,-9 
 
 
 
 -48,-70,-2 
 
 s. 45, 48 
 
 18 
 
 s. 55 66, 
 
 179 
 
 216, 427, 
 
 c. 55 
 
 441 
 
 
 
 -48,-71,-2 
 
 c. 76, 8. 210 
 
 314 
 
 s. 56-81.. 
 
 . 
 
 471 
 
 c 79, a. 4, 11, 
 
 12, 364 
 
 s. 57 .. 
 
 , 
 
 427 
 
 8.17 .. 
 
 276 
 
 s. 57 (2) 
 
 . 
 
 470 
 
 s. 19, 35 
 
 364 
 
 s. 60 
 
 , 
 
 471 
 
 0. 83, s. 35 
 
 426 
 
 s. 62,-3 . . 
 
 . 
 
 472 
 
 c 85, s. 24 
 
 278 
 
 s. 66 
 
 . 
 
 427 
 
 c. 86, 8. 61 
 
 380 
 
 s. 68 
 s. 71 
 
 • 
 
 442 
 . 422,-72 
 
 16-7 Vic, c. 21 
 
 366 
 
 8. 72 
 
 , 
 
 . 526,-65 
 
 c 24-6 . . 
 
 366 
 
 s. 73 . . 
 
 . 
 
 . 427,-72 
 
 c. 51 
 
 335 
 
 s. 80 (4) 
 s. 81 (4) 
 
 
 574 
 
 s. 52 .. 
 
 386 
 
 . 
 
 574 
 
 c 64, b. 3 . . 
 
 475 
 
 3. 81 (12) 
 
 
 472 
 
 c. 70, s. 108-47 
 
 367 
 
 s.83 .. 
 
 
 472 
 
 c 78, s. 6 . . 
 
 431 
 
 s.84-91.. 
 
 
 469,-71,-2 
 
 0. 113, s. 136 
 
 563 
 
 s.200 .. 
 
 179 
 
 , 216, 448 
 
 s. 225 . . 
 
 74 
 
 s. 546 . . 
 
 
 303 
 
 c. 134, s. 7 
 
 278 
 
 c 112 
 
 
 368 
 
 0. 137, s. 27 
 
 278 
 
 c. 113 
 
 
 42n. 
 
 s. 49, 65 
 
 441 
 
 c. 125, s. 78 
 s. 93 
 
 
 379 
 74 
 
 17-8 Vic, c 36 
 
 . . 350, 512 
 
 
 
 
 preamble 
 
 515 
 
 18-9 Vic, c. 13 
 
 
 367 
 
 s. 1 
 
 512,-5,-7,-8 
 
 0. 15, s. 1, 2 
 
 
 463 
 
 8.2 
 
 519 
 
 8. 3 
 
 
 . 343, 463 
 
 6.3 
 
 615 
 
 8.4 
 
 
 . 417, 463 
 
 8.4 (1).. 
 
 513,-4,-6,-7 
 
 s. 5, 6, 7, 
 
 
 463 
 
 6.4 (2).. 
 
 .. 515,-6 
 
 8.11 .. 
 
 
 465 
 
 s.4(3).. 
 
 .. 512,-4 
 
 6.12 .. 
 
 
 . 465,-6 
 
 8.5 
 
 516 
 
 8. 14 
 
 
 466 
 
 s. 6 
 
 513 
 
 c 39 
 
 
 368 
 
 s. 7 
 
 516 
 
 c 43 
 
 
 118 
 
 8.7(1).. 
 
 512,-3,-6,-7 
 
 c, 91, s. 10 
 
 
 . 441,-71 
 
 8.7(2).. 
 
 ..512,-5,-7 
 
 8.11 .. 
 
 
 471 
 
 8.7(3) .. 
 
 512 
 
 8.12 .. 
 
 
 . 471,-2 
 
 8.8 
 
 515,-7,-8,-9 
 
 s. 15 
 
 
 471 
 
 s. 9, 10.. 
 
 .. 515,-20 
 
 c ill 
 
 
 . 158,-71 
 
 s.ll, .. 
 
 520 
 
 8. 1 
 
 
 389 
 
 17-8 Vic, o. 55; each sec. 
 
 is cited 
 
 c 120, s. 42, 
 
 ■3 
 
 279 
 
 in the same pages as the 
 
 corres- 
 
 c. 124, s. 29-34 
 
 366 
 
 ponding sees, of the 17-8 Vic, 
 
 s. 35 . . 
 
 
 . 278, 366 
 
 c. 36. 
 
 
 s. 36-9 . . 
 
 
 366 
 
 17-8 Vic, c. 75 
 
 140 
 
 s. 41 
 
 
 278
 
 LIST OF STATUTES CITED. 
 
 xliii. 
 
 
 Page 
 
 
 
 Page 
 
 c. 131 
 
 366 
 
 
 s. 32 
 
 s. 33,-4,-5 
 
 471 
 
 475 
 
 19-20 Vic, c. 55 .. 
 
 363 
 
 
 s. 39, 40 
 
 478 
 
 c. 88 
 
 370 
 
 
 s. 43, . . 
 
 384 
 
 s. 51 
 
 279 
 
 
 s. 45, . . 
 
 478 
 
 c. 97, s. 1 .. 
 
 348,-89, 401,- 
 
 
 s. 46,-9 
 
 475 
 
 
 17, Ad. 334 
 
 
 B. 51 .. 
 
 412,-4,-75 
 
 s. 2 
 
 379 
 
 
 s. 52 
 
 412 
 
 s. 3 
 
 179 
 
 
 s. 53,-4,-7, 
 
 60 .. 475 
 
 s. 5 
 
 21 
 
 
 s. 61.. 412, 
 
 •75-7, Ap. vi 
 
 c. 102, s. 94 
 
 95 .. 74 
 
 
 8. 62 
 
 .. 476,-7 
 
 c. 108, b. 73 
 
 140 
 
 
 s. 64 .. 
 s. 66,-7 . . 
 
 384 
 441 
 
 20-1 Vic, c 25, b. 4 
 
 279 
 
 
 s. 68 
 
 478 
 
 c. 37, s. 4 . 
 
 141 
 
 
 B. 69 
 
 . . 475,-8 
 
 c 44, 
 
 368 
 
 
 s. 72 
 
 478 
 
 c 57, 8. 1.. 
 
 .. 138, 140 
 
 
 s. 73 . . 
 
 475 
 
 c 60 
 
 564 
 
 
 s. 79-83.. 
 
 364-6, 475 
 
 s. 8 
 
 599 
 
 
 s. 84 
 
 364-6 
 
 3. 51 
 
 525 
 
 
 s. 85 
 
 364-6,-86, 412 
 
 s. 90 
 
 570 
 
 
 
 -4, Ap. xx 
 
 e. 269 . . 
 
 407,-70,-1,- 512 
 -81 
 
 
 s. 92 
 
 591 
 
 B. 313 .. 
 
 459, 521,-4,-5, 
 
 21-2 Vic. 
 
 c. 94, b. 41 &c. .. 369 
 
 
 -6,-31 
 
 
 c 95, s. 19 
 
 441 
 
 8.314 .. 
 
 598 
 
 
 c 105, s. 1 
 
 431 
 
 s. 315 .. 
 
 600 
 
 
 B. 2 
 
 ..386, 431 
 
 6. 321 . . 
 
 580 
 
 
 s. 3, 4 
 
 431 
 
 S. 323 . . 
 
 600 
 
 
 8. 5 
 
 .. 414,-42 
 
 8.328, .. 
 
 515,-32,-71-4 
 
 
 
 
 s. 329 . . 
 
 .. 515,-32 
 
 22 Vic, ( 
 
 (.27 
 
 136 
 
 8. 330 . . 
 
 515 
 
 
 
 
 e. 331 . . 
 
 ..515, 599 
 
 22-3 Vic 
 
 , c 31 
 
 441 
 
 8. 332 . . 
 
 .. 515,-73 
 
 
 C 35, s. 1, 2 
 
 250 
 
 6. 333 . . 
 
 600 
 
 
 8.3 
 
 208 
 
 8. 334 . . 
 
 599 
 
 
 8. 10, 11 
 
 20 
 
 8. 335 . . 
 
 599 
 
 
 B. 12, 
 
 126 
 
 & 336 .. 
 
 599 
 
 
 6. 14-18, 
 
 366 
 
 8. 338 . . 
 
 591 
 
 
 B. 19 
 
 46 
 
 8. 340 . . 
 
 . . 372,-3 
 
 
 8. 23 
 
 367 
 
 s. 343-8 . . 
 
 521 
 
 
 8. 27, 28, 
 
 37 
 
 s. 349 . . 
 
 407, 521, Ad. 71 
 
 
 C. 43, 8. 11 
 
 276 
 
 s. 350-6 . . 
 
 521 
 
 
 c 61, s. 5 
 
 69 
 
 0. 77, s. 73 
 
 34,-5 
 
 
 
 
 8.76 . 
 
 39 
 
 23-4 Vic 
 
 , c. 16, s. 3-5 
 
 8, 9 369 
 
 s. 116, 117, .. 369 
 
 
 c 35, s. 4-9 
 
 314 
 
 C 85, B. 25 
 
 .. 34, 70 
 
 
 C 38, 8. 1 
 
 463-4 
 
 8.45 . 
 
 69 
 
 
 8. 4 
 
 8.5 
 
 334 
 
 463 
 
 21-2 Vic, 0. 36, s. 2 
 
 279 
 
 
 s. 6 
 
 250 
 
 0.44 
 
 .. 368,-70 
 
 
 6.7 
 
 439 
 
 c 57 
 
 369 
 
 
 c. 46, s. 32 5^. .. 368 
 
 c 72 
 
 .. 73, 384 
 
 
 e. 54, s. 1 . . 
 
 24 
 
 s. 1 
 
 475 
 
 
 c. 59 
 
 .. 368,-70 
 
 s. 2, 22,- 
 
 3,-4 . . 478 
 
 
 s. 3, 7, &c 
 
 368 
 
 s. 31 . 
 
 475 
 
 
 s. 7-10 .. 
 
 366
 
 xliv. 
 
 LIST OF STATUTES CITED. 
 
 
 Page I 
 
 
 Page 
 
 c. 71 
 
 370 
 
 s. 25 (6) 
 
 486 
 
 c. 82 
 
 73 
 
 8. 26, 27 
 
 484,-5 
 
 c. 83 
 
 118 
 
 8. 29 
 
 484,-7 
 
 c. 102 
 
 425 
 
 8.31 
 
 484 
 
 c. 106 
 
 370 
 
 s. 33 
 
 486 
 
 c. 115, s. 2 
 
 343 
 
 s. 34 
 
 485 
 
 c. 124, s. 2 
 
 441 
 
 8. 35-40 
 
 486,-7 
 
 s. 8 
 
 . . 363,-9 
 
 8.41 .- 
 
 486 
 
 s. 22-3 . 
 
 369 
 
 s. 42-52 
 
 486 
 
 8. 35-7 . 
 
 336 
 
 s. 49 
 
 486 
 
 s. 41 . 
 
 369 
 
 8.50 .. 
 
 484 
 
 c. 126 
 
 314 
 
 s. 58 
 
 485 
 
 c 127, s. 18 .. 336 
 
 s.59 .. 
 
 486 
 
 s. 28 
 
 561 
 
 s.63 .. 
 
 424,-86 
 
 c. 134, s. 1 
 
 ,2, .. 136 
 
 s. 63 (3) . . 
 
 472 
 
 s. 3 
 
 135 
 
 s. 64 .. 
 
 424 
 
 s. 5 
 
 136 
 
 s. 104 .. 
 
 412 
 
 c. 144, s. 6 
 
 69 
 
 s. 140 .. 
 
 486 
 
 C. 145 
 
 370 
 
 c. 61, s. 9 .. 
 
 279 
 
 s. 1-7 . 
 
 367 
 
 s. 36 . . 
 
 369 
 
 s. 8-10 
 
 . . 366,-7 
 
 . 63, s. 3 . . 
 
 470,-3,-4 
 
 s. 11-6, i 
 
 24, . . 367 
 
 8. 6 
 
 473 
 
 s. 26 
 
 67 
 
 c 67 
 
 73 
 
 s. 29 
 
 367 
 
 s. 1, 3, 4, 6, 15 
 
 486 
 
 s. 31 
 
 352 
 
 s. 16, 20 
 
 487 
 
 s. 33 
 
 . . 352,-70 
 
 s. 22, 24 
 
 489 
 
 c. 153 
 
 368,-9,-70 
 
 s. 25-7, 31-2, . 
 
 487 
 
 s. 20 
 
 414 
 
 s.39, 48, 49 . 
 
 486 
 
 24 Vic, c. 9 .. 
 
 135 
 
 25-6 Vic, c 86, s. 12-7 
 
 367 
 
 s. 2, 4, 
 
 6, .. 136 
 
 c 88. s. 20-2 
 
 366 
 
 c. 10 
 
 135 
 
 c 89 
 
 277,-8 
 
 c. 46, s. 26-30 . • 369 
 
 8. 2 
 
 408 
 
 c. 62 
 
 24 
 
 s. 24 
 
 468 
 
 c. 105 
 
 . . 364,-9 
 
 s. 30 
 
 467 
 
 c. 114 
 
 123 
 
 s. 84 .. 
 
 567 
 
 c. 133 
 
 279 
 
 s. 85, 87 
 
 568 
 
 pt. 1 
 
 .. 365,-70 
 
 s. 130 .. 
 
 567 
 
 c. 134,8. 192-200.. 
 
 s. 153 .. 
 
 564,-7,-8 
 
 
 
 s. 163 .. 564,-7,-8,-9 
 
 25-6 Vic, o. 7 
 
 425 
 
 s. 164 564,-7, 
 
 581,-2,-90 
 
 c 17 
 
 135 
 
 s. 201 . . 
 
 568 
 
 c. 42, s. 1 
 
 380 
 
 s. 205,-6 
 
 408 
 
 o. 46, s. 3 
 
 380 
 
 Table A, (12-5) . 
 
 469 
 
 c. 52 
 
 364-9 
 
 c 108 
 
 367 
 
 c.53 
 
 . . 73, 484 
 
 s. 2 
 
 366 
 
 s. 1 
 
 . . 484,-6 
 
 
 
 s. 2-6 
 
 484 
 
 26-7 Vic, c 13, s. 3 
 
 135 
 
 8.7 
 
 484-5 
 
 0. 49, s. 36 
 
 368 
 
 8.8 
 
 484 
 
 c. 73 
 
 425 
 
 s. 9 
 
 485 
 
 c. 65 
 
 368 
 
 s. 10-3 
 
 484 
 
 c 88, s. 44,-5,-8,-9 
 
 370 
 
 s. 14 
 
 . . 484-5 
 
 c 89, s. 22,-4, 31, 
 
 425 
 
 s. 16, 1£ 
 
 484 
 
 c 106 
 
 135 
 
 s.20, 21 
 
 485 
 
 c 120 
 
 365 
 
 s. 22-5 
 
 484 
 

 
 LIST OF STATUTES CITED. 
 
 xlv. 
 
 27-8 Vic, c. 13, s. 1-4, 
 c. 43, s. 11 
 c. 71 
 
 c. 76, s. 1-6 
 c. 99, s. 24 
 
 Page 
 135 
 396 
 370 
 431 
 563 
 
 c. 112, s. 1 334,-5, 420 
 
 s. 2, 3, .. .. 463,-4 
 
 s. 4 .. .. 335 
 
 c. 114 .. .. 368 
 
 S. 51 .. .. 369 
 
 s. 56 .. .. 408,-14 
 
 s. 59 .. .. 370 
 
 s. 65 .. .. 425 
 
 s. 78-9 . . . . 369 
 
 28-9 Vic, c 52, s. 4 . . 370 
 
 C.57 .. .. 369 
 
 c. 72 .. .. 179 
 
 c. 75 . . . . 365 
 
 c. 78 . . . . 366 
 
 c. 86, s. i; 4, 5, .. 600 
 
 c. 88 . . . 73, 484 
 
 s. 1 .. .. 484,-6 
 
 s. 2 . . . . 479,-82 
 
 s. 3 . . . . 478 
 
 s. 4 .. .. 478,-84 
 
 s. 5 .. .. 475 
 
 s.6 .. .. 478 
 
 s. 7 . . . . 478,-84 
 
 s.8 .. .. 478 
 
 s. 9, 10, .. 481 
 
 s. 11, .. .. 481,-4 
 
 s. 12, 13, .. 482,-4 
 
 s. 14 .. .. 480,-3 
 
 8.16 .. .. 412 
 
 8.17 .. •• 480 
 s. 18, 19, 20 .. 481,-4 
 8.21 .. .. 480 
 8.25 .. .. 481,-3 
 8. 26 . . 424, 480-3 
 s. 27, 31,-3,-4, .. 480 
 8. 35 . . . . 479,-82 
 s. 36-8, . . . • 479 
 8. 39 . . . . 482 
 s. 40 . . . . 479 
 s.41 .. .. 480 
 s. 42 . . 343, 466-79 
 s.43 ..343,466,473-9, 
 
 482,-3 
 
 s. 44 . . . . 480,-2,-3 
 
 8.46 .... 480 
 
 s.47 .. .. 480,-1 
 
 s.48 .. .. 480 
 
 8 49 .. .. 479 
 
 8.50 .. .. 483 
 
 8.51 .. .. 478 
 s. 52-6 . . . . 481 
 s.57 .. .. 481,-3 
 
 s. 58, 9 
 s. 60,-1 
 s. 62-8 
 s. 69 
 s. 70 
 
 Page 
 481 
 478,-81 
 481 
 473 
 481 
 
 s.72,80,(l, 4, 5), 81 (2,4) 
 
 ..473 
 
 c. 89, s. 42 
 
 s. 43 
 
 8. 44 
 C. 99, s. 1 (5), 10. 
 C. 101, s. 4, 5, . 
 
 s. 7, 13 .. 
 
 C. 104 
 
 s. 50 
 c. 126 
 
 s. 44-7 . . 
 29 Vic, c. 26, s. I, 2 
 
 s. 3 
 29-30 Vic, c 27 
 
 c 39, s. 42 
 c. 40, s. 4, 6 
 c.57 
 
 0. 96, s. 4.. 
 c 99 
 
 o. Ill, s. 2 
 c 122 
 30-1 Vic, 0. 29, s. 1.. 
 c. 44, s. 3 . . 
 
 s. 127 . . 
 c 47, s. 2 .. 
 c. 48, s. 7 . . 
 c. 54 
 c 69 
 
 c 113, s. 4 
 c 114 
 c. 127, s. 31 
 
 8.36 .. 
 c. 129, s. 47,-9, 
 c 131, s. 27 
 
 s. 28 
 c. 133 
 
 8.4 
 
 s. 5 
 
 s. 6 
 c. 144 
 
 s. 1, 2 .. 
 
 s. 5 
 31 Vic, c. 4 .. 
 31-2 Vic, c 40 
 
 s. 7 
 c 42, s. 9 . . 
 c. 44 
 c 47 
 c. 54 
 C.61 
 o. 62 
 
 279 
 136 
 279, 369 
 441 
 483 
 425 
 465 
 
 . . Ad. 169 
 368 
 365 
 483 
 477 
 370 
 465 
 370 
 135 
 520 
 73 
 363 
 136 
 184 
 
 . . 433,-4 
 342 
 343 
 282 
 366 
 153 
 365 
 463 
 366 
 370 
 463 
 467 
 468 
 
 . 275, 368 
 136 
 
 . 136, 368 
 368 
 388 
 
 . 396, 427 
 427 
 
 130,-1,-45 
 
 . 276, 365 
 441 
 386 
 136 
 368 
 463 
 369 
 475 
 
 Vij.
 
 xlvi. 
 
 LIST OF STATUTES CITED. 
 
 
 Page 
 
 
 Page 
 
 c. 70 
 
 370 
 
 c. 35 
 
 91 
 
 c. 86, s. 1 . . 
 
 396 
 
 c. 46 
 
 .. 368,477 
 
 c. 89 
 
 368 
 
 s. 35 
 
 . . 475,-7 
 
 8. 2 
 
 370 
 
 8. 36 
 
 477 
 
 c. 114, s. 6, 
 
 13, .. 441 
 
 C 56 
 
 369 
 
 c. 129 
 
 471 
 
 c. 71, s. 3.. 
 
 467 
 
 32-3 Vie, o. 10, s. 12 
 
 366 
 
 s. 4 
 
 4 
 
 c. 18, s. 3.. 
 
 370 
 
 s. 8 
 
 469 
 
 c. 28 
 
 370 
 
 8. 22 
 
 .. 425,-67 
 
 c. 42, s. 32 
 
 364 
 
 s. 23 
 
 .. 425,-69 
 
 c. 62, s. 2.. 
 
 599 
 
 6.24-5 .. 
 
 425 
 
 s. 24 .. 
 
 141 
 
 s. 26 .. 
 
 .. 425,-67 
 
 s. 26-7 .. 
 
 599 
 
 s. 27-9 . . 
 
 425 
 
 c. 71 
 
 564 
 
 s. 30 
 
 . . 425,-68 
 
 8.3 
 
 . . 593-4 
 
 8.31 
 
 425 
 
 s. 6 
 
 ..70,87-90 
 
 s. 32 
 
 . . 425,-6 
 
 8.6(1).. 
 
 .. 581,-5 
 
 s. 32 (1, 3), 
 
 467 
 
 s.6(2).. 
 
 . . 582,-5 
 
 8. 32 (4) 
 
 469 
 
 8.11 .. 
 
 70-1, 87-90 
 
 s. 33-50.. 
 
 425 
 
 8.15 .. 
 
 71, 392, 521 
 
 s. 73 .. 
 
 469 
 
 8. 15 (1) 
 
 .. 71, 346 
 
 0. 75, s. 20-1 
 
 368 
 
 s. 15 (2, 3) 70, 87-90 
 
 c 76, s. 3 .. 
 
 591 
 
 s. 15 (4) 
 
 70,-1,87-90,521 
 
 0. 84 
 
 369 
 
 8. 15(5) 
 
 71, 459, 521,-4, 
 
 0. 93, s. 1, 2, 
 
 60 
 
 
 -6, 531 
 
 8. 3, 4 
 
 .. 60, 470 
 
 8.17 .. 
 
 441 
 
 8. 5, 7, 8 
 
 60 
 
 s. 21 (1) 
 
 577 
 
 8.10 .. 
 
 .. 60, 597 
 
 8. 23, 24 
 
 72 
 
 0. 112, s. 6 
 
 371 
 
 >. 25 . 
 
 . . 372,-3 
 
 34 Vic, o. 22 
 
 367 
 
 8.31 .. 
 
 .. 73, 571 
 
 0. 24, s. 17 
 
 366 
 
 8. 32 (4) 
 
 470 
 
 34-5 Vic, o. 13 
 
 .. 134,275 
 
 B. 34 
 
 580 
 
 C. 22, s. 60, 87 
 
 367 
 
 8. 83 (3) 
 S. 83 (6) 
 
 512 
 
 s. 88 . . 
 
 441 
 
 441 
 
 8. 89-96, 107 
 
 367 
 
 8. 83 (8) 
 
 407,-70-2, 581 
 
 0. 40, s. 9 . . 
 
 441 
 
 s.87 .. 
 
 .. 569,-70 
 
 c. 72, s. 2 . . 
 
 343 
 
 8. 88 
 
 .. 566,-71 
 
 s. 10-2, . . 
 
 465 
 
 8.91 .. 
 
 .. 594,-7,-8 
 
 8.21 
 
 343 
 
 s.92 .. 
 
 .. 590,-3-5 
 
 0. 86, s. 17 
 
 368 
 
 s. 94 453, 515,-32,-71-3 
 
 0. 100, s. 4 
 
 471 
 
 8.95 453,515,-32,-71,-3,-4 
 
 s.5 
 
 ..371,471 
 
 8.117 .. 
 
 441 
 
 8.8 
 
 405 
 
 s. 119 .. 
 
 599 
 
 s. 9 
 
 .. 371,405 
 
 8. 125 (5) 
 
 71,441,521,-66, 
 
 8.13 .. 
 
 405 
 
 -71, 
 
 -80-2,-4,-90,-7-8 
 
 c 109, s. 4 
 
 365 
 
 s. 125 (6) 
 
 407,441,581 
 
 35-6 Vic, c. 6 
 
 379 
 
 s. 125 (7) 
 
 .. 441,564 
 
 c 24, s. 13 
 
 .. 135,278 
 
 sch. I 
 
 .. 597-8 
 
 c. 41, s. 4 .. 
 
 567 
 
 c. 72 
 
 370 
 
 C. 58 
 
 564 
 
 c. 83, s. 2.. 
 
 597 
 
 s. 3 
 
 593,-4,-7,-8 
 
 s. 20 
 
 .. 597,564 
 
 s. 5 
 
 564 
 
 c. 86 
 
 368 
 
 s. 17 .. 
 
 
 c. 107 
 
 136 
 
 s. 21 
 
 568 
 
 33 Vic, c. 14, s. 2 .. 
 
 47 
 
 8.21 (1) 
 
 568,-81,-5 
 
 33-4 Vic, c. 20 
 
 366 
 
 s. 21 (2) 568 
 
 ,-82,-3,-5,-6 
 
 c 23 
 
 70 
 
 s. 50 . . 
 
 372-3 
 
 c. 34 
 
 278 ' 
 
 s. 52 
 
 .. 597-8
 
 LIST OF STATUTES CITED. 
 
 xlvii. 
 
 
 Page 
 
 b. 53 
 
 590-1,-3-5 
 
 s. 54 
 
 .. 569,-70 
 
 s. 55 
 
 .. 515,-73 
 
 s. 91 .. 
 
 441 
 
 s. 121 (5) 
 
 441 
 
 s. 121 (7) 
 
 407,-70,581 
 
 36-7 Vic, c. 43 
 
 . . Ad. 365 
 
 0. 50 
 
 136, 275, 368 
 
 c. 64 
 
 25, 91, Ad. 223 
 
 c. 66, s. 24 
 
 (3, 6) 297 
 
 s. 25 (6) 
 
 162, 378, 396 
 
 s. 40(6) 
 
 .. Ad. 427 
 
 C. 85, s. 3-6 
 
 471 
 
 c. 86, s. 15 
 
 368 
 
 37-8 Vic, c 32, s. S 
 
 370 
 
 c. 37, s. 1 . . 
 
 367 
 
 c. 42, s. 42 
 
 442 
 
 c. 52, s. 7 . . 
 
 26 
 
 c. 57, s. 1.. 
 
 28 
 
 s. 2 
 
 . . Ad. 29 
 
 s. 8 
 
 26 
 
 s. 10 
 
 26-9 
 
 s. 25 
 
 29 
 
 0. 59 
 
 363 
 
 0. 62, s. 1 . . 
 
 117 
 
 s. 2 
 
 .. 114,-7 
 
 s. 3 
 
 386 
 
 c 78, s. 1 . . 
 
 382 
 
 8.2(1).. 
 
 451, Ad. 450 
 
 8.6 
 
 .. 137,-8 
 
 s. 8 
 
 .. 407,-11 
 
 c. 79, 8.7-. 
 
 395, Ad. 389 
 
 c. 83, s. 2.. 
 
 162 
 
 c. 84 
 
 441 
 
 c. 93, s. 9 . . 
 
 441 
 
 s. 27-31.. 
 
 365 
 
 8. 40-1 .. 
 
 368 
 
 s. 66 
 
 365 
 
 38-9 Vic, c. 11 
 
 368 
 
 c. 36, s. 20 
 
 371 
 
 C. 55 
 
 
 s. 7 
 
 279 
 
 s. 12 
 
 441 
 
 s. 63 
 
 366 
 
 s. 175-8.. 
 
 365 
 
 S. 233-4.. 
 
 368 
 
 c. 60, s. 16 
 
 . . 369, 442 
 
 c. 68 
 
 136, 279, 368 
 
 c. 77, s. 10 
 
 .. 176, 520 
 
 c. 87 
 
 .. 73, 485 
 
 s. 1 
 
 48 
 
 s. 2 
 
 . . 395, 487 
 
 s. 3 
 
 484 
 
 s. 4 .? 
 
 .. 52, 487 
 
 s. 5 
 
 .. 487-9 
 
 s. 6 
 
 488 
 
 8. 7 
 
 492-4 
 
 8.8 
 
 493 
 
 8.9 
 
 s. 10 .. 
 
 8. 11 .. 
 
 8.12 .. 
 
 8.13 .. 
 
 8.14 .. 
 
 8.15 .. 
 
 8.16 .. 
 
 8.17 .. 
 
 8.18 .. 
 
 s. 19, 20 
 
 8. 22 
 
 8. 24 
 
 8. 25 
 
 s. 26,-7.. 
 
 s. 28 .. 
 
 s. 29 
 
 6.30 .. 
 
 s. 31-3 .. 
 
 8.34 .. 
 
 s. 35-8 . . 
 
 8. 39 
 
 8.40 .. 
 
 s. 41-5 .. 
 
 8. 46 
 
 8. 47 
 
 8.48 .. 
 
 s. 49 
 
 s. 50,-1,.. 
 
 s. 52 
 
 B. 54-6 .. 
 
 s. 57-9 . . 
 
 s. 60-4 .. 
 
 s. 66 
 
 s. 68 
 
 s. 69 
 
 s.70-1 .. 
 
 s. 72 .. 
 s. 73-7 .. 
 
 s. 78-80.. 
 
 s.81 
 8. 82 
 
 s. 83 .. 
 s. 83 (1) 
 
 s. 83 (2) 
 S. 83 (3, 4) 
 s. 83 (5) 
 s. 83 (7) 
 s. 83 (8) 
 s. 84 
 s. 85 
 s. 87,-8 
 s. 89-91.. 
 s. 92 . . 
 s. 93,-4 . . 
 8. 95-6 .. 
 s. 97 .. 
 s. 98 
 
 Page 
 
 . . 488,-93 
 
 490 
 
 . . 487,-8 
 
 488 
 
 487,-92,-3 
 
 487,-91,-3 
 
 487 
 
 490 
 
 . . 488,-9 
 
 489,-92,-3 
 
 489 
 
 489,-90,-4 
 
 .. 489,-90 
 
 490 
 
 .. 367,490 
 
 489,-90,-4 
 
 ..488-91,-3 
 
 492-4 
 
 492-3 
 
 . . 490,-1 
 
 . . 492,-3 
 
 490 
 
 . . 491,-4 
 
 490 
 
 491-3 
 
 489 
 
 .. Ad. 53 
 
 .. 424,-91 
 
 491-2 
 
 491 
 
 492 
 
 491 
 
 492 
 
 . 488,-9 
 
 . 487,-9 
 
 488 
 
 489 
 
 488-9 
 
 489 
 
 490 
 
 491 
 
 .487,-92-3 
 
 488-9 
 
 488-9 
 
 488 
 
 491 
 
 489 
 
 488 
 
 489 
 
 489 
 
 . 441,-89 
 
 491 
 
 489 
 
 492 
 
 489 
 
 . 489,-94 
 
 489 
 
 494
 
 xlviii. 
 
 LIST OF STATUTES CITED. 
 
 
 Paqe 
 
 
 
 Page 
 
 s. 99-103 
 
 489 
 
 
 s. 39 
 
 364-5 
 
 s. 104 . . 
 
 490 
 
 
 s. 74 
 
 431 
 
 s. 105 .. 
 
 492 
 
 
 s. 79 
 
 . . Ad. 223 
 
 s. 118 .. 
 
 490 
 
 
 c 59, s. 4 . . 
 
 467 
 
 s. 125 .. 
 
 484 
 
 
 8.4(1) .. 
 
 425 
 
 s. 126 .. 
 
 485 
 
 
 s. 4 (3, 4) 
 
 469 
 
 s. 127 .. 
 
 412 
 
 
 s. 7 
 
 . . 425,-6 
 
 s. 129 .. 
 
 . Ad. 389 
 
 
 s. 7 (1, 3) 
 
 467 
 
 38-9 Vic, c. 89, s. 7, 8 
 
 441 
 
 
 s. 10 .. 
 
 425 
 
 s. 18 
 
 371 
 
 
 8.11 .. 
 
 .. 425-67 
 
 s. 20 
 
 441 
 
 
 s. 14 
 
 470 
 
 s. 129 .. 
 
 395 
 
 
 8.15 .. 
 
 468 
 
 c. 92, s. 45-7 
 
 369 
 
 
 s. 26 (3) . . 
 
 .. 425,-67 
 
 s. 48 
 
 . 364,-9 
 
 41 Vic, c 
 
 .23.. 
 
 140 
 
 s. 49 
 
 364 
 
 41-2 Vic. 
 
 c 31 
 
 512 
 
 39-40 Vic, c. 17 . . 2'< 
 
 6, 365,-86 
 
 
 s. 2 
 
 530 
 
 c. 31, s. 7 .. 
 
 371 
 
 
 8.3 
 
 . . 512,-30 
 
 c. 44, s. 3 . . 
 
 561 
 
 
 s. 4 (1, 2, 
 
 3) .. 512 
 
 c 45, s. 12 
 
 369 
 
 
 8.8 
 
 .. 369, 512 
 
 s. 12 (8, 9) 
 
 442 
 
 
 s. 10 
 
 .. 141, 512 
 
 c. 62 
 
 366 
 
 
 s. 20 
 
 530 
 
 c. 74 
 
 363 
 
 
 s. 22 
 
 .. 515,-8 
 
 s. 125 .. 
 
 73 
 
 42-3 Vic 
 
 , c 25 
 
 . . Ad. 368 
 
 c. 81 
 
 425 
 
 
 c 50 Same pages as the 
 
 40-1 Vic, c. 18 
 
 . 365,-71 
 
 
 corresponding sections 
 
 s.2(l).. 
 
 . 171,504 
 
 
 of the 41-2 Vic... 31 
 
 s. 33 
 
 504 
 
 
 c. 76, s. 3.. 
 
 277 
 
 s. 39 .. 
 
 171 
 
 43-4 Vic. 
 
 c 18, s. 2 
 
 470 
 
 s. 40 
 
 371 
 
 44-5 Vic. 
 
 c. 20 
 
 . . Ad. 365 
 
 s. 45 .. 
 
 475 
 
 
 c. 34,-5, . . 
 
 .. Ad. 368 
 
 s. 46,-7, 
 
 . 368,-71 
 
 
 c. 41, s. 4.. 
 
 . . Ad. 53 
 
 s. 48,-9 . . 
 
 368 
 
 
 s. 5 (1, 2) 
 
 . . Ad. 365 
 
 8.54 .. 
 
 . 363,-8 
 
 
 s. 10 
 
 Ad. 157-8, 208 
 
 s.57 .. 
 
 371 
 
 
 s. 11 .. 
 
 Ad. 170-3, 208 
 
 C. 21,s.33-4 
 
 365 
 
 
 s. 12 
 
 . . Ad. 208 
 
 s. 48 
 
 441 
 
 
 s. 14 .. 
 
 ..Ad. 31,-6 
 
 c. 26, s. 6.. 
 
 279 
 
 
 8.17 .. 
 
 .. Ad. 337 
 
 c. 31 
 
 . 350, 512 
 
 
 s. 18-20,-3, 
 
 •4, .. Ad. 367 
 
 s. 8 
 
 369 
 
 
 s. 25 
 
 .. Ad. 365 
 
 s. 20 
 
 530 
 
 
 s 30 .. 
 
 . . Ad. 53 
 
 c. 33 
 
 263 
 
 
 s. 31, 33-6 
 
 .. Ad. 367 
 
 c. 35 
 
 279 
 
 
 s.39 .. 
 
 Ad. 139, 365 
 
 c. 39 
 
 509 
 
 
 s. 40 
 
 Ad. 118, 138 
 
 s. 1, 2 .. 
 
 510 
 
 
 8. 41 
 
 .. Ad. 365 
 
 8.3 
 
 . 509,-1 
 
 
 s. 44(4),-5,-7,.. Ad. 369 
 
 8.4 
 
 510 
 
 
 s. 51 .. 
 
 .. Ad. 234 
 
 s. 5 
 
 511 
 
 
 s. 54 
 
 . . Ad. 505 
 
 s. 6 
 
 510 
 
 
 s. 55 
 
 .. Ad. 455 
 
 c. 48, s. 52-5 
 
 370 
 
 
 s. 59 
 
 Ad. 169, 334 
 
 s. 60 
 
 279 
 
 
 s. 62 
 
 . . Ad. 440 
 
 s. 61 
 
 370 
 
 
 s. 65 
 
 . . Ad. 5,34 
 
 c. 51, s. 5 .. 
 
 426 
 
 
 s. 70 (1) 
 
 ... Ad. 365 
 
 s. 9 
 
 425 
 
 
 s. 73 
 
 Ad. 53, 389 
 
 C. 56, s. 33,-4, 40, 
 
 441 
 
 
 C. 49, s. 22 
 
 . . Ad. 200 
 
 c. 57, s. 7 . . 
 
 364-5 
 
 
 s. 23, 25 
 
 . . Ad. 368 
 
 a. 21 (7) 
 
 364-5 
 
 
 s. 24, 26-31 
 
 ,-5,-7, Ad. 364 
 
 s. 27 (6) 
 
 380 
 
 
 c 65 
 
 . . Ad. 368 
 
 3.28(6)378,-95,4 
 
 27,Ad,223 
 
 
 c. 71 
 
 .. Ad. 364
 
 xlix-li. 
 
 LIST OF CASES CITED. 
 
 [For brevity, as the number of cases cited is large, each has iwith rare exceptions) been 
 indexed only once, viz.: in the name of the plaintiff or petitioner.] 
 
 [In regulating the Alphabetical arrangement, the letter "v" for versus, "r" for re, Sec- 
 have been taken into account.] 
 
 
 
 Page 
 
 
 Page 
 
 
 
 .. 118 
 
 Alderson v. Middison82, Ad. 
 
 99, 188,-9 
 
 v. xitinucccK 
 
 Abbls v. Burney Ad. 
 
 36, 218,-53,-63 
 
 v. Temple 
 
 558,-90 
 
 Abbott, exp. 
 
 
 . . 570 
 
 Aldred v. Constable 
 
 .. 593 
 
 v. St ratten 
 
 
 .. 400 
 
 Alexander v. Mills 
 
 .. 353 
 
 v. Sworden 
 
 
 .. 145 
 
 Alison, r. 
 
 Ad. 26 
 
 Abbot v. Burbage. . 
 
 
 .. 584 
 
 Allard r. Simons 
 
 499, 500 
 
 v. Middleton 
 
 
 .. 107 
 
 Allday v. Fletcher 
 
 55,-8 
 
 v. Pom fret . . 
 
 
 .. 595 
 
 Allen, ex. 
 
 Ad. 393 
 
 v. Stratten . . 
 
 
 .. 400 
 
 's estate 
 
 .. 407 
 
 Aberaman I. Co. v. "Wickens 93, 155, 
 
 v. Allen . . 53 
 
 118, 234 
 
 
 290, 
 
 303-5,-50 
 
 v. Anthony 
 
 448,-9 
 
 Aberdeen Town Council v. A. Univer- 
 
 v. Bonnett 542,-68,-76 
 
 -8,-81,-3, 
 
 sity 
 
 
 194-6 
 
 
 -90 
 
 Abingdon v. Butler 
 
 
 .. 287 
 
 v. Jackson 
 
 .. 201 
 
 Acherley v. Acherley 
 
 
 .. 182 
 
 v. Knight 
 
 401, 503 
 
 Ackroyd v. Smith . . 
 
 
 .. 8n. 
 
 v. Nash 
 
 .. 219 
 
 Acraman v. Bates . . 
 
 
 526,-35 
 
 v. Richardson 
 
 283, 309 
 
 v. Corbet 
 
 
 .. 548 
 
 Alliance Bk. v. Brown . . 
 
 .. 141 
 
 Adames v. Hallett. . 
 
 
 143, 539 
 
 Allsop v. Wheatcroft 
 
 .. 206 
 
 Adamson v. Evitt . . 
 
 
 .. 293 
 
 Alsop v. Rees 
 
 .. 580 
 
 Adams v. Angell . . 
 
 
 355,-7 
 
 Alston v. Atlay 
 
 .. 205 
 
 v. Linsell . . 
 
 
 .. 148 
 
 Alton v. Harrison 
 
 543,-51 
 
 v. t. of Savage 
 
 
 .. 323 
 
 Alvanley v. Kinnaird 
 
 .. 319 
 
 Adderley v. Dixon . . 
 
 
 149-51 
 
 Amcotts v. Catherick 
 
 .. 44 
 
 Addison v. Cox 
 
 
 .. 435 
 
 Amherst's trusts 
 
 .. 247 
 
 Adney v. Field 
 
 
 .. 608 
 
 Amiss v. Witt 
 
 .. 126 
 
 Adsetts v. Hives . . 
 
 
 .. 497 
 
 Ancona v. Rogers 
 
 514,-8 
 
 Agra Bk. v. Barry . . 
 
 413, 
 
 -44,-8,-51 
 
 Anderson's case 
 
 Ad. 292 
 
 Agra &c. Bk. v. Asiatic Bk. 
 
 Co. 154-6 
 
 v. Anderson 
 
 ,. 238 
 
 v. Leighton 
 
 149, 407 
 
 v. Pignet 
 
 .. 262 
 
 v. Worces 
 
 ter 
 
 532-33 
 
 Andrew's trusts 
 
 .. 598 
 
 Aislabie v. Rice 
 
 
 310,-1 
 
 Andrews v. Partington 
 
 226,-7 
 
 Albany's case 
 
 
 350,-2 
 
 Andrew v. Andrew 
 
 .. 227 
 
 Albion Steel Wire Co. v 
 
 . Martini 92, -6 
 
 Andsell v. Andsell 
 
 Ad. 69
 
 Hi. 
 
 LIST OF CASES CITED. 
 
 Anglo Indian Bank v. Davies . . 334 
 
 Angus v. Dalton 13-5, 29-32, 102, Ad. 
 
 8,-15,-6,-31 
 
 Anon (15 H. VII). . 
 
 (3 A. & E. 868). 
 
 (Ld. Ray, 737). 
 
 (12 Mos. 513). 
 
 (Ms.) 384, App. 
 
 (9 W. R. 199) 
 Antrim v. Grey 
 
 Antrobus v. Smitli 
 Appleby v. Myers . . 
 Arbouin, e . . 
 Archer's case 
 Archer v. Hudson . . 
 Arden v. Goodacre 
 Argentina 
 
 Arkwright v. Mewbold 
 Armistead r. Dilworth 
 Armitage v. Wilson 
 Armstrong's trusts 
 Armstrong v. Armstron 
 Arnold v. Cheque Bk. 
 v. Woodhams 
 Arton v. Booth 
 Ashburnham v. Bradshaw 
 Ashley v. Ashley . . 
 
 v. Bailey 
 Ashton v. Blackshaw 
 Ashwell v. Lomi . . 
 Ashworth v. Outram 
 Aspden v. Seddon . . 
 Astley v. Micklethwaite 
 
 v. Miller 
 Aston v. Wood 
 Athenaeum &c. v. Pooley 
 Atkinson 
 
 v. Br'ndall 
 
 v. Maling 
 
 v. Smith. . 
 
 r. Wise 
 
 v. Longvill 
 Atkyns v. Kinnear 
 Attenborough v. Attenborouijh . . 259 
 Atterbury v. Wallis 449,-58-62 
 
 Atf.-Gen. v. Biphosphated Co. 443,-4 
 
 .. 353 
 .. 199 
 .. 212 
 .. 260 
 
 , iii., v., vi. 
 576,-7 
 .. 478 
 .. 126 
 . . 103 
 .. 523 
 .. 237 
 133, 446 
 244,-5 
 377, 389 
 
 d. 286, 292 
 
 535-,6 
 
 .. 227 
 
 .. 84 
 
 33, 474 
 
 495,-6 
 
 .. 138 
 
 .. 22 
 
 .. 358 
 
 .. 38 
 
 458,-9,-61 
 
 517,-8,-23 
 
 .. 133 
 
 Ad. 60 
 
 .. 102 
 
 Ad. 217,-8 
 .. 323 
 .. 102 
 .. 154 
 392, 453 
 .. 593 
 .. 551 
 .. 557 
 535,-6 
 327, 440 
 .. 313 
 
 v. Brentwood 
 i Catherine Hall 
 r. Chvistchurch. . 
 ■'. Day . . 
 f. Eastlake 
 '. Gowei 
 
 279 
 324 
 91 
 189 
 275 
 48, 418 
 
 v. Greenhill 
 v. Hall . . 
 v. Newcastle 
 v. Pargeter 
 v. Sidney 
 v. Stephens 
 v. Wilkins 
 
 Attorney's Act, r. . . 
 
 Attwater, ex. 
 
 r. Turner 
 v. Attwater 
 
 Attwood v. Chichester 
 v. Maule. . 
 v. Small . . 
 v. Taylor . . 
 
 Aubin v. Daly 
 
 Austen v. Taylor . . 
 
 Austin v. Amhurst 
 v. Mead 
 
 Australia <&c. Co., . . 
 
 Aveline v. Melhuish 
 
 Aveling v. Knipe . . 
 
 Avei all v. Wade . . 
 
 Avern v. Lloyd 
 
 Avery v. Griffin 
 
 Ayerst v. Jenkins . . 
 
 A\lesford v. Morris 
 
 Ayles's trusts 
 v. Cox 
 
 Aylett v. Ashton . . 
 
 Aynsley v. Glover . . 
 
 Babcock v. Lawson 
 
 Baber's trusts 
 
 Badcock, r. . . 
 
 Baddeley v. Baddeley 
 
 Badger v. Tefferies 
 
 Badham v. Mee 
 
 Bagallay v. Petitt . . 
 
 Bagnall v. Andrews 
 v. Carlton . . 
 
 Bahia v. S. F. R. Co. 
 
 Baile v. Baile 
 
 Badey r. Barrell . . 
 
 Bailey v. Collet 
 v. Croft 
 v. Fermor . . 
 v. Piper 
 v. Richardson I 
 v. Stephens. . 
 v. Tennant . . 
 
 Bailie v. Trehame . . 
 
 Pas;e 
 
 255,-57 
 
 .. 450 
 
 .. 604 
 
 .. 443 
 
 .. 106 
 
 .. 454 
 
 381,-91 
 
 .. 206 
 
 ... 514 
 
 .. 574 
 
 .. 248 
 
 .. 137 
 
 App. xiv. 
 
 287,-9,-91 
 
 296,-8 
 
 .. 425 
 
 .. 240 
 
 29, Ad. 12 
 
 Ad. 126 
 
 .. 567 
 
 . . 331 
 
 .. 33 
 
 Ap. xvi. 
 
 .. 258 
 
 .. 141 
 
 .. 199 
 
 208-10 
 
 .. 202 
 
 303,-5 
 
 .. 321 
 
 .. 31 
 
 389, 95 
 
 100, 316 
 
 109 
 
 124 
 
 530 
 
 350 
 
 296 
 
 572 
 
 196,-8 
 
 .. 506 
 
 Ad. 336 
 
 582,-4 
 
 86,-9 
 
 .. 142 
 
 500,-1 
 
 .. 318 
 
 448,-49,-54 
 
 .. 8n. 
 
 .. 360 
 
 Ad. 33
 
 LIST OF CASES CITED. 
 
 liii. 
 
 Baily's trusts 
 Bainbridge r. 
 
 v. Kannaird 
 Bainbrigg v. Brown Ad. 1 
 Bain v. Brand 
 
 v. Fothergill . . 
 Baker v. Brooke . . 
 
 v. Farmer . . 
 
 v. Gray 
 
 v. Harris 
 
 v. Morgans . . 
 
 V. Moseley 
 
 v. Rogers . . 
 
 v. Wind 
 Balburnie 
 Balch v. Symes 
 Baldwin v. Rogers 
 Balfour v. Weston 
 Ballard v. Shutt . . 
 Ball v. Coggs 
 
 v. Mannin 
 Balmanno v. Lumley 
 Balme v. Iiutton . . 
 Balmerin v. Pyke . . 
 Bam field v. Newport 
 Banbury's case 
 
 v. White . . 
 Banco d. Lima, see ' 
 Bankhart v. Bowers 
 v. Tennant 
 Bankes v. Holme . . 
 B inkhead's trusts . . 
 Banner v. B^rridge 
 
 v. Johnstone 
 B nmster, r. 
 Barter, r. 
 Barber's settled estates, 
 
 v. Meyerstin 
 Barclay v. Joyce . . 
 v. Messenger 
 Barham v. Clarendon 
 Bargent v. Thompson 
 
 Barker, r 69, 
 
 v. Barker . . 
 
 v. Cox 
 
 v. Keate 
 Barkworth v. Harrison 
 
 v. Young 
 Barling v. Bishopp 
 Bat low v. Rhodes . . 
 Barnard v. Godscall 
 Barned's Bg. Co 
 
 Page 
 
 Ad. 335 
 
 . . 525 
 
 319, 321 
 
 ,-3, 446,-56 
 
 .. 516 
 
 90, 103-4 
 
 . . 425 
 
 .. 42 
 
 .. 349 
 
 . . 399 
 
 .. 391 
 
 .. 97 
 
 . . 205 
 
 .. 316 
 
 389, 564 
 
 .. 336 
 
 . . 228 
 
 .. 150 
 
 Ad. 89 
 
 .. 151 
 
 114,-7 
 
 .. 321 
 
 .. 584 
 
 76, 327 
 
 .. 513 
 
 452, 608,-9 
 
 .. 519 
 
 296,-8 
 
 99, Ad. 82 
 
 253,-4,-61 
 
 528,-9 
 
 Ad. 28,-9 
 
 165,-77 
 
 .. 292 
 
 .. 5S 
 
 215 
 
 427-8 
 
 .. 516 
 
 .. 302 
 
 559,-60 
 
 311,-3 
 
 553,-5, 603,-8 
 
 .. 329 
 
 .. 318 
 
 , . 3-27 
 
 535,-6 
 
 . 181 
 
 540,-1 
 
 . 18 
 
 . 175 
 
 165, 176-7, 343 
 
 Lim 
 
 A 
 
 hields 
 h 
 
 Barnes v. Wood 
 Barnett, ex. 
 
 v. Moxon 
 
 v. Reay 
 
 v. Sheffield 
 
 v. Weston . 
 Ban hardt v. Greens 
 Barrack v. McCullo 
 Bairand v. Cochrane 
 
 v. McCulloch 
 Barratt v. Hartley 
 
 v. Wyatt . . 
 Barraud v. Archer.. 
 Ban ell v. Parnell . . 
 
 v. Sabine . . 
 Barrington's case . . 
 Barrow v. Andrews 
 
 's case 
 
 V. Bell 
 Ban's trusts 
 Barry r. Fox 
 
 v. Croskey . . 
 Bartlett v. Bartlett 
 v. Salmon 
 Barton v. Barton . . 
 
 v. Gainer . . 
 
 v. Vanheythysen 
 
 v. Williams 
 Barwell v. Barwell . . 
 v. Ward . . 
 Barwick's case 
 Basevi v. Sena 
 Ba^kcombe v. Beckwith 
 Basket v. Nosworthy 
 Bastin v. Bidwell . . 
 Bateman v. Bateman 
 v. Gray . . 
 Bates v. Bonner 
 
 v. Johnson 
 Bathe v. Bk. Fngland 
 Bath's (Bo. of) case 
 Bats tone v. Salter . . 
 Batthyani v. Bouch 
 Bauman v. James . . 
 Bawdes v. Amherst 
 Bayley v. Morris . . 
 Baylis v. Newton . . 
 Bayspoole v. Collins 
 Baxendale v. Bennett 
 Baxter v. Portsmouth 
 
 v. Pritchard 
 Beale v. Symonds . . 
 
 Page 
 ..318 
 531,-5 
 ..442 
 ..526 
 ..330 
 395,-9, 500,-1 
 
 . . 44S 
 .. 604 
 .. 517 
 540,-1 
 .. 132 
 .. :i31 
 
 296, 320 
 .. 312 
 .. 315 
 .. 8n 
 
 Ad. 590 
 
 . 341, 421 
 
 523,-31 
 
 . 392, 572 
 
 .. 526 
 
 . 99, 286,-9 
 
 522,-3,-33,-4 
 
 . . 306 
 
 221,-2 
 
 .. 429 
 
 . 541 , 604 
 
 .. 55 
 
 .. 197 
 
 Ap. xiv. 
 .. 212 
 
 Ad. 296 
 .. 292 
 381,-2 
 
 Ad. 298 
 
 .. 326 
 
 ..227 
 
 Ad. 89 
 
 391,-4, 401,-17 
 
 ..469 
 
 .. 212 
 
 ..324 
 
 ..474 
 
 ..181 
 
 ..109 
 
 .. 237 
 
 323,-5 
 
 .. 543,-52,-3 
 
 ..496 
 
 116,-7 
 
 .. 58,-79,-87 
 
 . . 47
 
 Hv. 
 
 LIST OF CASES CITED. 
 
 
 Pave 
 
 
 Page 
 
 Beardman v. Wilson 
 
 . 158, 173 
 
 Bentick v. Portland 
 
 .. 257 
 
 Bear v. Stevenson . . 
 
 . Ad. 286 
 
 Bentley v. Mackay 
 
 124,-5 
 
 Beasley v. Magrath 
 
 .. 121 
 
 Benyon v. Cook 
 
 128-30 
 
 Beattie v. Ebury . . 
 
 .. 287 
 
 Berkeley's will 
 
 333,-4 
 
 Beauchamp v. Winn 
 
 . 281,-2,-3 
 
 Bernard v. Draught 
 
 .. 413 
 
 Beaudley v. Brook. . 
 
 .. 4-10 
 
 Bcrney v. Vyner . . 
 
 .. 587 
 
 Beaufort v. Patrick 
 
 417-43 
 
 Berrington v. Scott 
 
 .. 374 
 
 Beaumont 
 
 .. 367 
 
 Berry, exp. 
 
 .. 534 
 
 v. Dukes 
 
 .. 289 
 
 v. Berry 
 
 .. 440 
 
 v. Needham 
 
 .. 604 
 
 v. Gibbons . . 
 
 . 38,-9, 343 
 
 v. Oliveira 
 
 .. 275 
 
 v. Gibson 
 
 Ad. 344 
 
 Beavan v. McDonnell 
 
 .. 116 
 
 v. Young 
 
 .. 301 
 
 v. Oxford . . 
 
 463, 605 
 
 Berty v. Faulkland 
 
 .. 314 
 
 Beckett v. Buckley 
 
 Ad. 335 
 
 Besant v. Cox 
 
 . . 230 
 
 v. Cordley. . 
 
 .. 505 
 
 Besley v. Besley 
 
 77, 80 
 
 Beckford v. Beckford 
 
 .. 326 
 
 Bessy v. Windham 
 
 .. 542 
 
 Beckwith's case 
 
 .. 438 
 
 Best v. Hamand 
 
 .. 282 
 
 Bedford v. British Museun 
 
 l .. 175 
 
 Betts v. G.E.R. Co. 
 
 .. 366 
 
 Beech v. Keep 
 
 .. 126 
 
 Bettesworth D. St. Paul' 
 
 5 ..318 
 
 Beevor v. Luck 
 
 337,-8,-49 
 
 Betts v. Burch 
 
 311,-12 
 
 Begbie v. Fenwick . . 
 
 .. 516 
 
 Beyfus v. Bullock . . 
 
 .. 343 
 
 v. Phosphate, &c. 
 
 Zo. .. 199 
 
 Bibbins v. Potter . . 
 
 Ad. 222 
 
 Behn v, Kembie . . 
 
 .. 287 
 
 Bickley v. Guest 
 
 .. 350 
 
 Beioley v. Carter . . 
 
 .. 106 
 
 Billson v. Crofts 
 
 .. 247 
 
 Belcher, ex . . 
 
 .. 526 
 
 Bills v. Smith 
 
 . . 594 
 
 v.Bellamy.. 
 
 .. 535 
 
 Bindon v. Suffolk ... 
 
 .. 226 
 
 v. Campbell 
 
 528,-9 
 
 Bingham v. Bingham 
 
 .. 281 
 
 v. Jones 
 
 . . 596 
 
 Binks v. Rokeby . . 
 
 91, 306 
 
 v. Magnay. . 
 
 .. 572 
 
 Bird, re 
 
 . . Ad. 234 
 
 v. Prittie 
 
 595,-6 
 
 Birds v. Askey 
 
 331,-2 
 
 Belchier v. Butler . . 
 
 .. 401 
 
 v. Bass 
 
 . . 575 
 
 Belding v. Read . . 
 
 Ad. 212 
 
 Bird v. Blyth 
 
 • 392, 436 
 
 Bellairs v. Bellairs. . 
 
 .. 201 
 
 v. Christopher 
 
 .. 352 
 
 Bellamy v. Sabine.. 
 
 74, 342 
 
 v. Ellames 
 
 ..417 
 
 Bell, ex 
 
 .. 532 
 
 Birkenhead &c. R. Co., v 
 
 . Pilcher 113 
 
 gds 
 
 Ad. 35 
 
 Birkett. r 
 
 .. 275 
 
 Bellingham v. Alsop 
 
 .. 33 
 
 Birmingham r. Adams 
 
 .. 569 
 
 Bell v. Blyth 
 
 .. 473 
 
 Canal Co. v. Cartwright 265 
 
 v. Cundall 
 
 .. 389 
 
 Birt 
 
 .. 527 
 
 v. Simpson 
 
 .. 568 
 
 Bisco v. Banbury . . 
 
 .. 450 
 
 Bence v. Gilpin 
 
 .. 110 
 
 Bishop v. Cuitis 
 
 .. 425 
 
 Bendyshe, ex 
 
 .. 140 
 
 v. Tonnies . . 
 
 .. 598 
 
 Benet College v. Cary 
 
 .. 301 
 
 v. Wall 
 
 .. 137 
 
 Bengough v. Echidge 
 
 .. 265 
 
 Bittleston v. Cook . . 
 
 576-8 
 
 Benham v. Keane 408,-1'' 
 
 >,-17,-20,-63 
 
 Bjorneborg r. KLullberg . 
 
 528,-9 
 
 Bennet 
 
 .. 314 
 
 Blackborough v. Davis 
 
 .. 34 
 
 s trusts 
 
 .. 228 
 
 Blackburn v. Cheeseboiou 
 
 gh 593,-5 
 
 Bennett v. Bennett 
 
 325,-26, 556 
 
 v. Stables 
 
 .. 240 
 
 v. Fowler . . 
 
 .. 320 
 
 Blackett v. Bates . . 
 
 .. 149 
 
 v. Lowe . . 
 
 .. 262 
 
 Blackwell v. Nash . . 
 
 . 296 
 
 v. Tankerville 
 
 .. 238 
 
 Black v. Homersham 
 
 .. 88 
 
 Bensley v. Burdon 
 
 .. 77 
 
 Blackwood v. London C. 
 
 Bk. .. 343
 
 LIST OF CASES CITED. 
 
 lv. 
 
 Page 
 
 Blagden v. Bradbear . . . . 189 
 
 Blakeney v. Brady .. .. 125,-6 
 
 v. Ordnance Co. Ad. 156 
 
 Blake v. Hungerford 388, 430,-31 
 
 v. Peters 317 
 
 Bland v. Middleton .. .. 315 
 
 Blann v. Bell . . .. 41.-2 
 
 Blanshard, ex. . . . . . . 527 
 
 Blenkarne v. Jennens . . 458,-9 
 
 Blenkinsopp v. Blenkinsopp . . 539 
 Bloodwell v. Edwards . . 201,-19 
 Bloomer v. Spittle.. .. 280,376 
 
 Blosse v. Clanmorris . . . . 383 
 
 Blondell v. Brettargh . . Ad. 109 
 Blundell's trusts . . . . • • 275 
 
 Board v. Board .. .. Ad. 27 
 
 Boast v. Filth 150 
 
 Boddam v. Taylor 589 
 
 Bodkyn's estate . . . . Ap. xx 
 
 Boldero v. London,&c. Co. 175, -43,-6,-7 
 
 Bolland v. Cherry .. ..592,-3,-5,-6 
 
 v. Clint . . . . 544,-98 
 
 v. Dysart 490 
 
 r. Porter . . . . 528,-9 
 
 r. Price .. .. 583,-5-, 7 
 
 Bolton v. Lancashire, &c. Co. 528 
 
 Bond, re 97 
 
 r. Forster . . . . . . 536 
 
 v. Pollard 326 
 
 Bonomi v. Backhouse .. .. 15 
 
 Bony v. Taylor . . . . . . 237 
 
 Boone v. Eyre . . . . . . 296 
 
 Boon v. Boon . . . . . . 595 
 
 Boothbey v. Sowden . . . . 141 
 
 Booth v. Turle 178 
 
 Bos v. Helsham 309 
 
 Boswell v. Mendham . . . . 446 
 
 Botcherley v. Lancaster . . . . 581 
 
 Bothamley v. Sherson . . 40 
 
 Bottle v. Knocker . . . . 97 
 
 Bott v. Smith . . 540,-4 
 
 Bouchard v. Mooren . . . . 566 
 
 Boughton v. Boughton . . . . 604 
 
 v. Sandilands . . 284, 383 
 Boulton v. Sketchley . . . . 462 
 
 Bould v. Wynston. . .. .. 3:7 
 
 Bourne v. Fosbrooke . . . . 429 
 
 v. Mason . . . . . . 166 
 
 Boursot v. Savage 443, 458,-1, Ad. 340 
 
 Bouts v. Ellis 126 
 
 Bovey v. Skip with. . . .' .. 385 
 
 Bowen v. Cobb . . . . . . 505 
 
 Page 
 
 v. Evans . . . . . . 291 
 
 Bowers v. Heaps .. .. .. 129 
 
 Bower v. Foreign, Sec. Co. . . 339 
 
 Bowes v. Goslett .. .. 221,-2 
 
 Bowles v. Round . . . . . . 288 
 
 v. Stewart 293 
 
 Bowron exp. Bailey . . . . 109 
 
 Bowyer v. Bright . . .. 304,-5 
 
 Boxon v. Williams .. .. 450 
 
 Boydell v. McMichsel . . . . .526 
 
 Boyd v. Dickson . . . . . . 292 
 
 v. Hind 144 
 
 Boyle r. Collett ._ 595 
 
 Boyse v. Rossborough . . . . 133 
 
 Boyson v. Gibson . . . . . . 472 
 
 Boys v. Ayerst . . . . . . 149 
 
 Bracebridge v. Buckley .. .. 313 
 
 Brace v. D. Marlborough. . 396,-9 
 
 Bracewell v. Williams . . . . 144 
 
 Brackenbury v. Gibbon . . . . 217 
 
 Bradley v. Cartwright . . 234,-9 
 
 v. Peixoto . . 246,-8 
 
 v. Riches338, 413, -58-60,500-8 
 
 Bradshaw v. Hunter . . . . 361 
 
 v. Lancashire, &c.R. Co. 152 
 Brake, gds. of . . Fur. Ad. 105 
 
 Bramwell v. Eglington 
 
 .. 532 
 
 Brandling v. Plummer 
 
 318,-20 
 
 Brandon v. Robinson 
 
 .. 245 
 
 Brantom v. Griffits 
 
 515,-7 
 
 Bratt v. Ellis 
 
 . . 103 
 
 Braybrooke v. Att.-Gen. . 
 
 .. 359 
 
 Brealey v. Andrews 
 
 .. 142 
 
 Brearcliffe v. Dorrington . 
 
 . . 391 
 
 Brecon v. Seymour 
 
 .. .39 
 
 Breed's will 
 
 .. 66 
 
 Brentwood, &c. Co. 
 
 .. 329 
 
 Brereton v. Cowper 
 
 .. 288 
 
 v. Jones . . 
 
 . 399, 400 
 
 Breton's estate 
 
 Ad. 124 
 
 Brettle, r 
 
 . 139 
 
 Brett v. Beckwith . . 
 
 528,-9 
 
 v. Clawser 
 
 Ad. 309 
 
 Brewin v. Briscoe . . 
 
 .. 575 
 
 v. Short 
 
 .. 572 
 
 Brewster v. Kitchen 
 
 .. 172 
 
 Brice v. Bannister . . 
 
 154, 4^7 
 
 Bridger, r. . 
 
 Ad. 36 
 
 Bridge v. Beadon . . 
 
 .. 435 
 
 v. Bridge . . 
 
 124,-6 
 
 Brigg's case 
 
 .. 103 
 
 Briggs, e 
 
 .. 291
 
 lvi. 
 
 LIST OF CASKS CITED. 
 
 
 Pa«e 
 
 
 Page 
 
 v. Jones . . 
 
 . . 503 
 
 Bruce v. Bruce 
 
 .. 123 
 
 v. Oxford . . 
 
 .. 260 
 
 v. Warwick 
 
 .. 148 
 
 Bright's settlement 
 
 .. M92 
 
 Brudenell v. Elwes 
 
 242,-67 
 
 r. Smith 
 
 528,-9 
 
 Brumfitt v. Roberts 
 
 .. 8n. 
 
 's trusts 
 
 433,-56 
 
 Brunton's case 
 
 .. 154 
 
 Brighton v. Gdns. Brighto 
 
 i Ad. 24,-5 
 
 Bryan, r. 
 
 Ad. 60 
 
 Brignall v. Cohen . . 
 
 517,-8 
 
 v. Child 
 
 .. 600 
 
 Bringloe v. Goodson 
 
 350-2,-61 
 
 Bryant v. Foot 
 
 29, 30 
 
 Bristol v. Hungerford 
 
 .. 400 
 
 v. Lefever . . 2, 
 
 !, 9, -.13,-4 
 
 Bristowe v. Ward . . 
 
 242,-4 
 
 Bryne & Co. v. Leon & Co 
 
 Ad. 147 
 
 Bristow v. Boothbv 
 
 . . 225 
 
 Brysen v. Wylie 
 
 .. 528 
 
 Britain v. Brown . . 
 
 575, Ad. 70 
 
 Bubb v. Padwick 
 
 Add. 223 
 
 v. Rossiter 178,-8 
 
 5, App. xiv. 
 
 Buchanan v. Findley 
 
 Ad. 98 
 
 British &c. Co. v. Coulson 
 
 .. 147 
 
 Buckhurst peerage 
 
 .. 213 
 
 British M. I. Co., v. Smar 
 
 t 169, 330, 
 
 Buckinghamshire r. Hobart 
 
 .. 284 
 
 
 -2,-347 
 
 Buckle v. Michell 
 
 601,-3 
 
 Broadbert v. Barlow 
 
 . . 455 
 
 Buckley v. Lanauze 
 
 .. 410 
 
 Broad v. Alunton . . 
 
 .. 292 
 
 Buckmaster v. Harrop 
 
 185,-8 
 
 Brogden v. Metropolitan 
 
 R. Co. 96, 
 
 Buckton v. Hay (see Ridley) 
 
 
 -107,-8,-47 
 
 Budd, r. 
 
 .. 37 
 
 Bromley v. Holland 
 
 .. 315 
 
 Bugden v. Bighold ; 
 
 592,-8,-452 
 
 v. Smith . . 
 
 . . 209 
 
 Buller v. Waterhouse 
 
 558, 608,-9 
 
 Brooke 
 
 .. 561 
 
 Bulley v. Bulley 
 
 .. 336 
 
 r. Hassall . . 
 
 .. 98 
 
 Bullock v. Sadleir 
 
 .. 604 
 
 v. Pearson . . 
 
 .. 589 
 
 r. Thorne 
 
 608,-9 
 
 r. Roberts . . 
 
 6, 72, 110 
 
 Bull v. Hutchens 
 
 .. 344 
 
 Brookes v. Haynes 
 
 .. 35 
 
 Buhner v. Hunter 
 
 552,-8 
 
 v. Harrison 
 
 Ad. 340 
 
 Bunn, r. 
 
 Ad. 225 
 
 Brooke v. Rounthwaite . 
 
 .. 305 
 
 Bunting v. Sargent 
 
 Ad. 28 
 
 Brook v. Turner 
 
 .. 139 
 
 Burchell v. Clarke 
 
 389, 447 
 
 Brothers v. Bence . . 
 
 .. 444 
 
 Burchmore, gds. of 
 
 .. 36 
 
 Broughton's trusts. . 
 
 139,-51 
 
 Burden v. Neil 
 
 Ad. 316 
 
 Broughton v. Att.-Gen. . 
 
 . . 400 
 
 Burgess's case 
 
 Ad. 291 
 
 v. Davis 
 
 .. 76 
 
 Burgess v. Robinson 
 
 .. 314 
 
 v. Knight 
 
 116,-17 
 
 Burgh v. Francis 
 
 .. 399 
 
 Brown e. Sibly's contract 
 
 253-,5-,69 
 
 Burgoyne v. Hatton 
 
 .. 452 
 
 Bayley & Dixon 
 
 Ad. 567 
 
 Burlace v. Cooke 
 
 .. 380 
 
 Browne, r. . . 
 
 .. 463 
 
 Burlton v. Humfrey 
 
 .. 314 
 
 v. McClintock . 
 
 30, 291 
 
 Burmester, r. 
 
 ... 460 
 
 v. Savage. . 
 
 434-6 
 
 Burnes v. Pennell 
 
 .. 290 
 
 Brown r. Reed 
 
 516,-26 
 
 Burnham v. Bennett 
 
 .. 58 
 
 's settlement 
 
 270, 359 
 
 Burn v. Carvalho 
 
 .. 525 
 
 's will 
 
 Ad. 314 
 
 BurrelPs case 
 
 .. 602 
 
 v. Bamford . . 
 
 .. 138 
 
 Burrell v. E. Egremont . . 
 
 .. 323 
 
 v. Bateman . . 
 
 51. 571 
 
 r. Robinson 500, 
 
 -64,-78,-81 
 
 v. Brown 
 
 .. 119 
 
 B urrou "h ^ v 
 
 .. 547 
 
 
 v. Kempton 
 
 .. 595 
 
 v. Oaklev 
 
 .. 308 
 
 v. London . . 
 
 .. 310 
 
 Burrows v. Ellison 
 
 .. 28 
 
 v. Alonck 
 
 .. 153 
 
 Burton v. Sturgeon 
 
 .. 69 
 
 v. Raindle . . 
 
 .. 33 
 
 v. Tunstall 
 
 579,-5,-6 
 
 v. Stead 
 
 .. 355 
 
 Burt v. Stonard 
 
 .. 42 
 
 v. Stenson . . 
 
 .. 308 
 
 Bushell v. Bushell 
 
 .. 453
 
 LIST OF CASKS CITED. 
 
 lvii. 
 
 Butcher r. Mellor . . 
 v. Stead . . 
 Butler & Baker's case 
 v. Cumpston 
 v. Hobson . . 
 v. Mulvihill 
 Butt r. Mapleback 
 Butterfield v. Heath 
 Buxton v. Hay 
 
 r. Muller . . 
 v. Rust 
 Byerley v. Prevost . . 
 
 Page 
 
 528,-9 
 591,-5 
 
 108,-10, 430 
 .. 334 
 552,-5 
 .. 119 
 565,-7 
 .. 554, 
 .. 246 
 
 . Ad. 171 
 .. 181 
 .. 513 
 
 Byrne v. Van Tienhoven . . Ad. 109 
 Caballero v. Henty . . 295, 44S 
 
 Cadell v. Palmer 63, 252,-8,-63,-8,-79 
 383, Ad. 223 
 Cadman v. Horner .. 288,-9 
 
 Cadogan v. Kennett .. 539,-51 
 Calcraft v. Roebuck . . . . 306 
 
 Caldecott v. Browne . . . . 333 
 
 Callard v. Callard 212 
 
 Caldwell v. Currie.. . 523,-33 
 
 v. Fellowes . . Ad. 33 
 
 Calisher v. Forbes. . 344,-97,-433 
 
 Callow v. Lawrence . . . . 156 
 
 Campbell v. French . . . . 281 
 
 v. Holyland . . . . 316 
 
 v. Hooper . . . . 116 
 
 v. Liverpool . . . , 101 
 
 Campion v. Cotton 544,-47,-54,-7 
 
 Candy v. Campbell . . . . 269 
 
 Cane v. Allen .. .. Ad. 192 
 
 Cann v. Cann . . . . . . 309 
 
 Cape v. Scott . . . . 16 
 
 Capper v. Spottiswoode . . . . 329 
 
 Cardross's settlement 118, Ad. 119 
 Carey v. Stafford 77, 80,104 App. xvii. 
 Carleton v. Leighton . . Ap. xix. 
 Carling's case .. .. .. 195 
 
 Carlisle v. Blamire .. 172,-3 
 
 Came v. Long . . . . . . 275 
 
 v. Mitchell . . . . 77, 80 
 
 Carpenter v. Blandford .. ..311 
 
 v. Cresswell . . . . 307 
 
 Carrodus v. Sharp . . . . 85,-6,-9,-92 
 
 Carrow v. Ferrier .. .. ..116 
 
 Carr's trusts . . . . 60 
 
 Carr v. Acraman . . . . . . 565 
 
 v. Burdiss 578 
 
 v. Foster . . .. 31 
 
 v. Livingstone . . . . 109 
 
 v. London 8c N.W.R.Co. 495,-6 
 
 Carter v. Carter 341,-60,-90,-7,-451,- 
 
 500,-1 
 v. Cropley . . . . . . 275 
 
 v. D'Ely 300 
 
 v. Sanders 333 
 
 v. Scargill . . 
 Carter v. Threapleton 
 Cartwright v. Miller 
 Case v. Drozier 
 
 v. James 
 Casey's trust 
 Castle, e. 
 
 v. Wilkinson 
 Cathcart 
 
 Cathrow v. Eade . . 
 Catling v. King 
 Caton v. Caton 
 
 v. Dixon 
 Cator v. Cooley 
 Cattlin v. Brown ... 
 Cavander v. Bulteel 
 Cavendish v. Greaves 
 Cave v. Cave 
 
 v. Hastings ... 
 
 Page 
 .. 307 
 .. 519 
 95, 103 
 .. 260 
 .. 391 
 .. 587 
 
 ,. 522,-3,-30 
 .. 319 
 .. 474 
 .. 410 
 .. 182 
 
 99, 182,-6-9 
 
 .. 296 
 
 .. 453 
 
 252,-63,5,-9 
 
 448-9 
 
 ... 348 
 
 461 
 
 .. Ad. 181 
 
 Cawardine v. Cawardine ... ... 439 
 
 Cazenove v. Clayton . ... 473 
 
 Chadwick v. Turner ...406,-13,-4 
 
 Challinor v. Rogers ... ... 519 
 
 Chalmers v. Brailsford ... ... 324 
 
 Chalmers v. Lanion ... ... 349 
 
 Chamberlain v. Lee ... ... 301 
 
 v. Wilkinson ... 152 
 
 Chamberlayne v. Brockett 257-8 
 
 v. Chamberlayne ... 237 
 
 Chambers v. Griffith 298 
 
 v. Smith 246 
 
 Champernowne v. Brook ... ... 86 
 
 Champneys v. Burland ... Ad. 335 
 Champney v. Davey ... Ad. 136 
 
 Cham v. Dover . . 386 
 
 Chapman v. Bradley . . . . 516 
 
 v. Cotterell . . . . 425 
 
 v. Emery . . . . 603 
 
 v Knight . . . . 519 
 
 Champney v. Burland . . 463,-4 
 
 Charlton v. Durham . . 39 
 
 Charter v. Charter . , . . . . 105 
 
 Chartered Bk. v. Henderson . . 391 
 Chasemore v. Richards . . . . 9 
 
 Chaston r Ad. 223 
 
 v. Seago Ad. 223 
 
 Chatham v. Tothill . . . . 266 
 
 Chatterton v. Watney . . Ad. 335 
 Cheale v. Ken ward , . 145,-51 
 
 Chedington's case . . . . 2i3-4 
 
 Cherry v. Heming . . .. .. 184 
 
 Chesterfield v. Janssen . . 130,-2 
 
 Chesterman v. Mann . . 298-9 
 
 Chesworth v. Hunt . . 338,-50 
 
 Chick r. Meredith . . . . . . 566 
 
 Child v. Coniber 189 
 
 v. Monins 37 
 
 viii.
 
 lviii. 
 
 T.IST OF CASES CITED. 
 
 Chilton v. London . . . . . . 277 
 
 China St. Co. v. Mackenzie . . 348 
 
 Chinnock v. Ely 308 
 
 Chipps v. Anglesey . . . . 340 
 
 Cholmondeley v. Clinton., .. 282 
 
 Chomley's case . . . . . . 223 
 
 Chovvne v. Baylis . . . . 546,-7 
 
 Christie v. Borelly 295 
 
 v. Ovington . . . . 53 
 
 Christ's Hospital v. Grainger . . 259 
 Christy v. Courtenay . . . . 326 
 
 Chudlei<di's case . . . . 220, 434 
 
 Churchill v. Marks . . . . 250 
 
 Churchman v. Harvey . . . . 360 
 
 Church's estate . . . . . . 409 
 
 Chute v. Brady . . . . . . 477 
 
 Citizen's Bk. v. First National, &c. 79, 
 
 82, 95, 285 
 
 City Bk. v. Barrow . . . . 509 
 
 City of Glasgow R. Co. v. Caledonian 
 
 R- Co 366 
 
 Clack v. Holland . . . . . . 395 
 
 v. Royle . . . . . . 329 
 
 Clare v. Lamb .. .. 77,150 
 
 v. Maynard . . . . . . 103 
 
 Clarke's trusts . . . . . . 102 
 
 Clarke v. Armstrong .. ..412 
 
 v. Batters . . . . . 473 
 
 v. Chamberlaine . . Ad. 374 
 
 v. Dickson 113 
 
 v. Faux 308 
 
 v. Hoskins . . 291,-3 
 
 v. Macintosh . . . . 289 
 
 v. Malpas 94, 95, 115,-21,-33, 
 
 383 
 
 v. Parker 314 
 
 v. Spence . . . . . . 527 
 
 v. Willott . . . - . . 602 
 
 v.Wright.. 545,-6,-52,-6,-60 
 
 Clark v. Ormond . . . . 39 
 
 Clayton v. Wilson. . .. .. 545 
 
 Clay v. Rufford . . . . 301 
 
 v. Willis 142 
 
 Cleary v. Fitzgerald .. 405,-9 
 
 Clegg v. Rowland. . .. ..37 
 
 Clements v. Wells. . . . 175, 450-1 
 
 Clemow v. Geach . . . . 79 
 
 Clere's case. . .. .. 438,-9 
 
 Clerke v. Clerke . . . . Ad. 30 
 
 Clermont v. Tasburgh . . . . 288 
 
 Clever v. Kirkman .. 105,178 
 
 Clinan v. Cooke . . . . . . 189 
 
 Clever v. Adams .. .. Ad. 336 
 
 Clough v. London & N. W. R. Co. 
 
 289,-90,377 
 
 Clutton v. Lee . . . . . . 343 
 
 Coape v. Arnold . . . . . . 235 
 
 Page 
 Cochrane v. Rymil . . . . 498 
 
 v. Willis . . 279,-81,-82 
 
 Cockburn v. Edwards Ad. .. 128 
 
 Cockell v. Taylor, . . . . . . 505 
 
 Cocks v. Manners . . . . . . 274 
 
 Coggs v. Bernard . . . . . . 377 
 
 Codrington v. Codrington 111, 119 
 Cofri.i v. Cooper .. .. .. 301 
 
 Cogent v. Gibson . . . . . . 151 
 
 Cohen r. Sparke .. .. 535,-79 
 
 Cokes v. Mascal . . . . . . 187 
 
 Colborne v. Strawbridge . . , . 425 
 
 Colchester v. Lowton .. .. 274 
 
 Coleman v. Jarroin . . . . 226 
 
 v. Sarel 126 
 
 Colemere, r. 458, 568,-75,-9,-87 
 
 Coles v. Coles . . . . . . 500 
 
 v. Hawes . . . . 97 
 
 v. Trecothick . . . . 145 
 
 Cole v. Bishop 288 
 
 v. Coles, . . . . 503,-4 
 
 v. North Western Bank 496, 
 
 503,-9 
 
 v. Sewell . . . . 63, 263 
 
 v. Sims 159 
 
 Colkett v. Freeman . . . . 569 
 
 Colleson v. Lettsom . . . . 157 
 
 Collett v. Collett . . . . .311 
 
 v. Dickenson . . , . 137 
 
 Collier v. Jenkins . . . , . . 305 
 
 v. Alason . . . . . . 145 
 
 v. Mc.Bean . . . . 85 
 
 v. Walters . . . . . . 232 
 
 Colhnson, r. . . . Ad. 223 
 
 v. Cave . . . . 287 
 
 v. Lister417,-9,-458-9,-6,-i 
 Collins v. Cave . . . . . . 145 
 
 v. Collins (No. 2) . . . . 328 
 
 Evans 287 
 
 v. Gibbs . . . . . , 296 
 
 v. Lee 519 
 
 v. Locke 206 
 
 v. Plummer . . . . 245 
 
 v. Wakeham . . . . 325 
 
 Collis's estate . Ap.xx.,477 
 
 Collyer v. Mason . . . . . . 260 
 
 Colemere, r. . . 458, 568,-75-9 
 
 Colmer v. Ede . . , . . . 336 
 
 Colonial &c. Co. . . . . . 433 
 
 Columbine v. Penhall 544,-52,-85,-6 
 Colyear v. Musgrave .. .. 163 
 
 Colyer v. Finch . . 291, 380, 500,-1 
 Combe v. Hughes . . . . 33 
 
 Commercial Bk. &c.( Wilson's case)114 
 Cummins v. Scott . . . . . . 182 
 
 Commrs. P.Wks. v. Harby 433,-4,-6 
 Commissioners of Sewers v. Glass 16
 
 LIST OF CASES CITED. 
 
 lix. 
 
 
 
 Paoe 
 
 Compton v. Oxendean 
 
 
 . . 357 
 
 Conington v. Gilliatt 
 
 
 Ad. 61 
 
 Conelly v. Steer 
 
 
 .. 516 
 
 Consolidated I. Co. v. 
 
 Pilley 
 
 393, 522 
 
 Cooch v. Walden . . 
 
 
 .. 364 ! 
 
 Cook, e. 
 
 
 .. 588 
 
 r. Straclian . . 
 
 
 331,-2 
 
 's contract . . 
 
 
 271, 393 
 
 v. Chilcott . . 
 
 159 
 
 -61,-70,-4 
 
 v. Hemming 
 
 7 
 
 1, 523,-32 
 
 v. Oxley 
 
 
 .. 146 
 
 v. Sholl 
 
 
 .. 73 
 
 v. Wilton . . 
 
 
 . 394 
 
 Cookson v. Lee 
 
 
 .. 446 
 
 Cook v. Caldecott. . 
 
 . '. 568 : 
 
 v. Herle 
 
 
 .. 441 
 
 Coombes v. Coombs 
 
 
 .. 36 
 
 v. Mansfield 
 
 
 .. 474 
 
 Cooper & Allen's contract 
 
 .. 456 
 
 Cooper, gels, of 
 
 
 Ad. 139 
 
 r. Baum 144, 
 
 514,- 
 
 73,-8,-5,-6 
 
 r. Zucco 
 
 
 .. 593 
 
 v. Cooper . . 
 
 '.'. Ill 
 
 v. France 
 
 
 .. 47 
 
 v. Franklin . 
 
 
 220, 44U 
 
 v. Hood 
 
 
 .. 182 
 
 v. Jarman . . 
 
 
 .. 153 
 
 v. Johnson . . 
 
 
 .. 524 
 
 v. Kynoch . . 
 
 
 232, 440 
 
 v. Laroche . . 
 
 
 Ad. 257 
 
 v. Macdonald 
 
 
 44, 139 
 
 v. Phibbs . . 
 
 
 281-2, 443 
 
 v. Trewby . . 
 
 
 .. 92 
 
 v. Willomat 
 
 
 506,-7 
 
 v. Wormald 
 
 , . 
 
 .. 543 
 
 v. Zucco 
 
 
 .. 593 
 
 Coope v. Creswell . . 
 
 
 .. 168 
 
 Coore v. Todd 
 
 
 .. 360 
 
 Coote v. Jecks 
 
 
 .. 516 
 
 v. Mammon 
 
 
 458,-9 
 
 Cope, r. 
 
 
 Ad. 36 
 
 Copland v. Davies . . 
 
 
 562-3 
 
 Coppin v. Fernyhough 
 
 
 .. 450 
 
 Cooth v. Jackson . . 
 
 
 .. 189 
 
 Corbet's case 
 
 
 .. 250 
 
 Corbett v. Hall 
 
 
 1 
 
 v. Stone 
 
 
 215,-6 
 
 Corbis, r. 
 
 
 .. 433 
 
 Cordel v. Clifton (Westmore 
 
 land's 
 
 case) 
 
 
 .. 390 
 
 Corder v. Morgan . . 
 
 
 Ad. 160 
 
 Cordingley v. Cheesebrough 
 
 318, 320 
 
 Cordwell v. Mackrill 
 
 
 . . 420 
 
 Corker v. Ennys 
 
 
 .. 354 
 
 Cork v. Russell 
 
 
 Ad. 335 
 
 Corlass, re. . . 
 
 
 .. 226 
 
 Corless v. Spurling 
 
 
 476,-8 
 
 Corley v. Stafford . . 
 
 .. 61 
 
 Cormick v. Trapaud 
 
 601,-7 
 
 Cornfoot v. Brown . . 
 
 Ad. 254 
 
 v. Fowke . . 
 
 286,-8 
 
 Cornish v. Clarke . . 
 
 541,-4,-8,-55 
 
 Cornwall v. Hawkins 
 
 .. 113 
 
 Corrigan v. Woods 
 
 .. 186 
 
 Corser v. Cartwright 
 
 . . 42 
 
 Cory v. Eyre 
 
 394, 506,-8 
 
 Cosens v. Bagnor . . 
 
 .. 328 
 
 Coslake v. Till 
 
 .. 300 
 
 Cosser v. Collinge . . 
 
 443,-56 
 
 Cosnahan v. Grice . . 
 
 .. 126 
 
 Cotham v. Sydenham 
 
 .. 452 
 
 Cottam v. Eastern Cos. R.C 
 
 :. 426,-68, 506 
 
 Cotterell v. Homer. . 
 
 .. 560 
 
 Cotton, r. 
 
 .. 67 
 
 v. Barrymore 
 
 ... 290 
 
 Coulson v. Allison. . 
 
 Ad. 132 
 
 Coultwas v. Swan . , 
 
 Ad. 94 
 
 Coutts v. Ackworth 
 
 .. 128 
 
 Coventry v. Smith . . 
 
 .. 428 
 
 Coward, gds. of 
 
 .. 138 
 
 Cowles v. Gale 
 
 .. 300 
 
 Cowper v. Cowper. . 
 
 .. 376 
 
 Cowx v. Foster 
 
 .. 555 
 
 Coxhead v. Mullis . . 
 
 .. 114 
 
 Cox, r. 
 
 . 136, 527 
 
 v. Bishop 
 
 • • 172 
 
 v. Conventon . . 
 
 Ad. 339 
 
 v. Davie 
 
 .. 136 
 
 v. Leigh 
 
 . . 562 
 
 v. Pritchard . . 
 
 .. 592 
 
 v. Reed 
 
 .. 543 
 
 v. Troy 
 
 .. 425 
 
 Cracknall v. Janson 337, -S 
 
 , 553,-5, 606 
 
 Crampton v. Varna, &c. . 
 
 .. 185 
 
 Craven r. Craven . . 
 
 .. 593 
 
 v. Brady 
 
 .. 246 
 
 v. Fickett . . 
 
 .. 306 
 
 Crawcour v. Salter 
 
 Ad. 530 
 
 Crawford v. Toogood 
 
 .. 301 
 
 Crayctaft 
 
 .. 570 
 
 Credit Co. v. Pott . . 
 
 .. 519 
 
 Credland v. Potter 
 
 .. 407 
 
 Crickmore v. Freeston 
 
 .. 338 
 
 Crisp v. Crisp 
 
 .. 69 
 
 Crofton v. Ormsby 
 
 299, 456 
 
 Crofts v. Wilkinson 
 
 416,-7 
 
 Croft v. Graham . . 
 
 209,-10 
 
 v. Lumley 
 
 .. 311 
 
 Croker v. Martin . . 
 
 548,-58, 604 
 
 Cromwell's case 
 
 .. 440 
 
 Crookes v Whitworth 
 
 Ad. 138 
 
 Crooke v. Hill 
 
 202,-26 
 
 Crook v. Seaford . . 
 
 Ad. 82
 
 lx. 
 
 LIST OK CASES CITED. 
 
 Page 
 Crook v. Stephens . . . . 22 
 
 Croome v. Lediard . . . . 298 
 
 Crop v. Norton . . . . . . 103 
 
 Crosbie r. Bedell 573 
 
 Crosse v. Elworthy 539,-48,-9,-50,-55 
 v. Lawrence . . . . 320 
 
 Crossley v. City of Glasgow 393,-6,404 
 
 542 
 Cross v. Barnes . . . . . . 516 
 
 v. Faustenditch . . 327, (03,-9 
 
 v. Keene 320 
 
 Crouch v. Credit Foncier. . Ad. 156 
 Crowe . . . . . . . . 442 
 
 Crow v. Pettingill 323 
 
 v. Rogers . . . . . . 166 
 
 Croxton v. May bl 
 
 Crozier v. Crozier . . . . . . 239 
 
 Crumlin &c. Co., re .. 520,-5 
 
 Cuddee v. Rutter . . . . . . 151 
 
 Cuddon v. Tite . . . . 84 
 
 Cullen v. Thompson's trust . . 286 
 
 Culpepper v. Aston . . . . 342 
 
 Cuming v. Biown .. .. .. 417 
 
 Cumming v. Baily . . . . . . 569 
 
 v. Forrester 28^,-91, Ad. Ill 
 Cummins v. Fletcher 338, Ad. 338 
 
 Cundy v. Lindsav 95, 377,-82,-9,-95, 
 
 400 
 Cunliffe v. Brancher .. .. 217 
 
 Cunnigham's settlement . . . . 258 
 
 Antrobus . . 58 
 
 Cunynghame v. Thurlow . . 350,-2 
 Cuppledike's case . . . . . . 261 
 
 Curnick v. Turner . . . . 98 
 
 Currant v. Jago . . . . . . 326 
 
 Currie v. Goold 282 
 
 v. Kind 546,-54,-5,-7,601,-3,-7 
 Curson v. Bilworthy . . . . 121 
 
 Curteis' trusts . . . . 323,-4 
 
 Curtis v. Lukin . . . . 252,-3 
 
 v. Price 233 
 
 Cusack v. Hud? on . . . . . . 475 
 
 Cutler v. Bowyer 307 
 
 Cutts, exp 189 
 
 Dacre v. Gorges . , . . . . 284 
 
 Dagenham v. T. D. Co., e. Hulse 313 
 
 Dnglish v. Wilde 516 
 
 Daking v. Whimper . . . . 601 
 
 Dalby v. Pullen 305 
 
 Dale & Co Ad. 332 
 
 Dale, e 525 
 
 Dalgleish's' 442 
 
 Dalston v. Reeve 297 
 
 Dalton v. Angus, see Angus v. D. 
 Dance v. Goldingham . . . . 394 
 
 D'Angibaur. .. Ad. 118,-43,-63 
 
 Daniell v. Sinclair.. .. Ad. 482 
 
 Daniels v. Davidson 
 Daniel v. Russell . . 
 
 v. Stepney . 
 
 v. Ubley 
 Dann r. Parker 
 Darby v. Smith 
 D'Arcy v. Blake . . 
 v. Chambers 
 Darley v. Langworth 
 Darnley v. L. N. W. R. Co 
 Darville v. Terry 
 
 Page 
 
 448,-9 
 
 ..388 
 
 .. Ad. 173 
 
 . . 138, 248 
 
 576,-8,-9,-85-6 
 
 ..532 
 
 . . 43 
 
 ..410 
 
 ..310 
 
 .. 314 
 
 541,-43 
 
 Dashwood v. Jermyns . . Ad. 99 
 
 Daun v. City of London B. Co. . . 418 
 
 Davenport r. Leech . . 530-1 
 
 v. Bishopp . . . . 559 
 
 v. Walker . . Ad. 303 
 Davies v. Davies . . . . . . 421 
 
 v. Games . . . . Ad. 33 
 
 v. Morgan . . . . 142,-66 
 
 v. Sear . . . . . . 18 
 
 v. Speed . . . . 17 
 
 v. Thomas 395, 418,-47,-50,-1 
 Davis, r. . . . . . . . . 171 
 
 v. Bk. England . . 426,-68 
 v. Goodman . . Ad. 141 
 
 v. Strathmore 413-18, Ap. xvii. 
 v. Thomas . . . . . . 316 
 
 Dawe's case . . . . . . 567 
 
 trusts 228 
 
 Dawes v. Harness . . . . . . 113 
 
 Dawkins v. Penhryn . . . . 245 
 
 Dawson v. Bk. of Whitehaven 391,446 
 
 597,-8 
 
 .. 142 
 
 236, 314 
 
 389, 454 
 
 532-4 
 
 .. 144 
 
 .. 121 
 
 -9,498 
 
 528,-9 
 
 195,-6 
 
 585,-6 
 
 155, 207, 544 
 
 224,-9 
 
 .. 95 
 
 Ad. 29 
 
 . 561 
 
 . 17 
 
 . 236 
 
 4, 304 
 
 198 
 
 137 
 
 158 
 
 575 
 
 103 
 
 379,-5 
 
 v. Dawson 
 
 v. Keai ton 
 
 v. Olver-Massey 
 
 v. Prince . . 
 Day v. Day 
 Deacon v. Gridley 
 Deane v. Raston . . 
 Dearie v. Hall 
 Dear r. White 
 De Bussche v. Alt. . 
 Defries r. Myers 
 De Hoghton v. Money 
 Deighton's estate . . 
 De la Touche's settlement 
 De la Warr v. Miles 
 De Mandeville v. Crompton 
 Dennett v. Pass 
 Denn v. Gillett 
 
 Denny v. Hancock 280-1, 292, 
 Denton v. Donner 
 De Pradel, gds. of . . 
 Derisley v. Custance 
 Devas v. Venables.. 
 Deverell v. Bolton. . 
 
 De Vesci v. O'Kelly 
 
 475,-7,-8
 
 LIST OF CASES CITED, 
 
 lxi. 
 
 
 Page 
 
 
 Page 
 
 De Visme v. De V 
 
 isme . . 86,-7 
 
 v. Polgrean . . 
 
 . . 55 
 
 Devoy v. Devoy 
 
 326 
 
 v. Pott.. 
 
 A]>. xxiv 
 
 Dewar v. Mrutland 
 
 Ill 
 
 v. Robinson . . 
 
 ..234 
 
 Devvhurst v. Vanlo 
 
 ke . . Ad. 70 
 
 v. Kolfe 
 
 .. 561,601 
 
 De Windt v. De V 
 
 /indt . . . . 234 
 
 v. Routledge . . 
 
 ..604 
 
 D'Eyncourt v. Gre 
 
 gory . . . . 5 
 
 v. Rucastle 
 
 .. 239 
 
 Dicconson, r. 
 
 . . Ad. 367 
 
 v. Rusham 
 
 602,-4 
 
 v. Talb 
 
 Dt . . 192-4, 292 
 
 v. Scarborough 
 
 ..260 
 
 Dickenson v. Burn 
 
 ;11 155, 207, 544 
 
 v. Sheffield . . 
 
 ..226 
 
 v. Dodc 
 
 Is .. ..146 
 
 v. Smith 
 
 234,-8 
 
 Dicker v. Jackson 
 
 296,-7 
 
 v. Stanion 
 
 ..103 
 
 Digge's case 
 
 350-2 
 
 v. Steward 
 
 ..56-7 
 
 Dilkes v. Broadmead 169, 347,-89, 
 
 v. Tatchell 
 
 ..75 
 
 
 404,-55,-60 
 
 v. Terry 
 
 ..438 
 
 Dillon, r. 
 
 478 
 
 v. Thomas 
 
 . . 354,-9,-61 
 
 v. Coppin 
 
 77 
 
 v. Watt 
 
 ..311 
 
 Dilrow v. Bane 
 
 . . Ad. 234 
 
 v. Webber 
 
 .. 424 
 
 Dimmock v. HaUel 
 
 .. 288 
 
 v. Welford 
 
 .. 233 
 
 Dimock v. Bastock 
 
 ..226 
 
 v. Whittaker . . 
 
 ..424 
 
 Dixon v. Astley 
 
 308 
 
 v. Whittingham 
 
 326,-7 
 
 v. Gay fere 
 
 328-9 
 
 v. Williams 
 
 26, 327 
 
 v. Mucklestc 
 
 )n . . 496, 500-1 
 
 v. Wilson 
 
 .. 216 
 
 v. Swansea 
 
 &c. Co... Ad. 156 
 
 v. Wroot 
 
 . . 424 
 
 v. Yates 
 
 377 
 
 Dolling v. Evans . . 
 
 ..101 
 
 Dobell v. Hutchins 
 
 on . . 303-4 
 
 Doloret v. Rothschild 
 
 .. 300 
 
 Doble v. Doble 
 
 553,-97 
 
 Dolphin v. Aylvvard 
 
 401, 602,-4,-5 
 
 Dodds v. Hills 39 
 
 4, 401,-16,-8,-47,-8, 
 
 Donaldson v. Gillot 426,-68, 503,-4 
 
 
 -68,-9 
 
 Doncaster v. Doncaster 
 
 269-70 
 
 Dodd v. Acklom 
 
 180 
 
 Donne v. Hart 
 
 .. 225 
 
 Doe v. Alsopp 
 
 413,-7 
 
 Dorin v. Dorin 
 
 .. 202 
 
 v. Archer 
 
 358 
 
 Dorman r. Lake 
 
 525,-72 
 
 v. Biggs 
 
 . . ... 440 
 
 Douglasse v. Waad 
 
 . . 554, 607 
 
 v. Blackburn 
 
 47 
 
 Douglas v. Douglas 
 
 .. Ill 
 
 v. Bottriell 
 
 601 
 
 v. Russell 
 
 .. 522 
 
 v. Britain 
 
 350,-3 
 
 v. Watson 
 
 .. 429 
 
 v. Clark 
 
 48-9 
 
 Douty v. Bowman. . 
 
 .. 171 
 
 v. Collier 
 
 260 
 
 Dover r. Popple 
 
 .. 527 
 
 v. Crisp 
 
 424 
 
 Dowle v. Saunders 
 
 .. 503 
 
 v. Davies 
 
 327 
 
 Dowling, exp. Banks 
 
 .. 70 
 
 v. Eyre 
 
 268 
 
 Downes v. Power . . 
 
 . 458,-9,-60 
 
 v. Featherston 
 
 e . . 232,-8 
 
 Draper's Co. v. Yardley 
 
 .. 450 
 
 v. Gallini 
 
 241-3 
 
 Dressier r. Solomon 72 
 
 171, Ad. 72 
 
 v. Grubb 
 
 25 
 
 Drewe v. Corp 
 
 .. 306 
 
 v. Harborough 
 
 . . 25 
 
 v. Hanson . . 
 
 .. 3<)5 
 
 v. Harvey 
 
 238 
 
 Drew v. Martin 
 
 167, 322, 604 
 
 v. Hawke 
 
 249, Ad. 247 
 
 v. Norbury 
 
 342,-3, 407 
 
 v. James 
 
 601 
 
 Drinkwater v. Coombe 
 
 .. 323 
 
 v. Jauncy 
 
 25 
 
 Dryden v. Frost 
 
 . 458,-60'-l 
 
 v. Jones 
 
 351, 361, 603 
 
 Drysdale v. Mace . . 
 
 .. 292 
 
 v. Lewis 
 
 545,-61, 602,-5 
 
 Dubber v. Trollope 
 
 .. 237 
 
 v. Maberley . 
 
 75 
 
 Duberley v. Day . . 
 
 ..56-7 
 
 v. Manning 
 
 603,-7 
 
 Dudley v. Vaughan 
 
 .. 569 
 
 v. Martin 
 
 608,-9 
 
 Dudson 
 
 .. 374 
 
 v. Martyn 
 
 . . 233, 545 
 
 Duffleld v. Duffield 
 
 .. 224 
 
 v, Morgan 
 
 217 
 
 v. Hicks . . 
 
 .. 326 
 
 v. Passingham 
 
 ..440 
 
 Duignan v. Bissell . . 
 
 566, Ad. 71 
 
 v. Phillips 
 
 25 
 
 Dunbar v. Tredennick 
 
 ., 446
 
 lxii. 
 
 LIST OF CASES CITED. 
 
 Duncuft v. Albrecht 
 Dungannon v. Smith 
 Dunk v. Fenner 
 Dunlop v. Higgins 
 Dunnage v. White 
 Dunster v. Glengall 
 Durham v. Legard 
 Durrani v. Eec. < ommis 
 Dutton, re . . 
 
 v. Poole 
 Duvergier v. Fellowes 
 Dyer v. Dyer 
 
 v. Hargreave 
 
 v. Pulteney . . 
 Dyke's estate 
 
 v. Blake 
 Dyson v. Hornbury 
 Eager v. Furnival . . 
 Eaglesfield v. Londonderry 
 
 Eames v. Hacon 
 Easterby v. Sampson 
 East Grinstead case 
 East India Co. v. Clabell . . 
 Eastwood v. Kenyon 
 Eaton v. Watts 
 Ebrand v. Dancer 
 Eccleshill L. Bd. 
 Ecclesiastical Com 
 Eddel's trusts 
 Ede v. Knowles 
 Edey v. Cuthbertson 
 Edmonds v. Best 
 Edmunds v.Povey. 
 Edmondson's estate 
 Edwards v. Cooper 
 v. Edwards 
 
 v. English 
 v. Fidel . . 
 v. Hancher 
 v. Harben 
 v. Jones . . 
 v. Martin . . 
 v. Reginam 
 v. Scott . . 
 v. Slater . . 
 v. West . . 
 v. Wick war 
 
 Page 
 
 . . 151 
 
 250,-4 
 
 .. 238 
 
 107,-47 
 
 281, 324 
 
 .. 464 
 
 318,-20 
 
 Ad. 280 
 
 ■ • 274 
 
 .. 1(35 
 
 .. 199 
 
 .. 325 
 
 91,-300,5,-6 
 
 155,-6 
 
 .. 123 
 
 .. 297 
 
 86-7 
 
 Ad. 44 
 
 282,-7, 
 
 Ad. 280 
 Ad. 35 
 157,-71 
 .. 421 
 .. 54.5 
 
 • • 142 
 
 • • 97 
 .. 326 
 Ad. 89 
 
 v. Rowe Ad. 24,-3 
 
 • 218 
 •■ 541,-603 
 • ■ 521,-3,-3! 
 
 . . 521 
 ..341 
 •^27,-69 
 .. 575 
 229, 393, 414, 
 513,-5, 
 . 5i6 
 
 ..3 2 3 
 -.581 
 
 539,-40,-50,-1 
 • •124 
 ..533 
 ..571 
 533,-4 
 
 .. 350,-1,-4 
 76,90 
 106, 292 
 
 Edwards-Wood v. Marjoribanks 
 Egerton v. Brownlow 
 Eland v. Eland 
 Elborough v. Ayres 
 Elder v. Maclean . . 
 Eley v. Positive &c. Co. 
 Ellcock v. Mapp . . 
 Elliott v. Collier . . 
 
 306 
 200 
 
 452 
 
 y 
 
 ?34 
 
 „62 
 
 3 24 
 
 3-1 
 
 Page 
 Ellison v. Ellison . . . . . . 125 
 
 Ellis r. Ellis . . . . 576,-7,-8 
 
 Ellis's trusts I38 
 
 Ellis v. Houston . . . . . . 2o2 
 
 v. Manchester Carr. Co 18.-9 
 
 v. .Maxwell . . . . . . 272 
 
 v. Nimmo . . . . . . 559 
 
 Elmer r. Colson . . . . 527,-8 
 
 Elsey v. Lutyens . . . . 407,-18 
 
 Emden v. Carte .. ., Ad. 70,-1 
 
 Emerson r. Hawkins .. ... 127 
 
 Emery v. Wase . . . . . . 455 
 
 Emilien Marie, the 389,-91, 447 
 
 Emmerson's case . . . . . . 567 
 
 Emmett's estate .. .. Ad. 226 
 
 Empress, the . . 473, Ad. 162 
 
 Engelback v. Nixon . . . . 499 
 
 England, Bk. of, v. Parsons . . 468 
 v. Downes . . . . 561 
 
 English, &c, Co. v. Arduin . . 100 
 E ns worth v. Griffith .. ..315 
 
 Erskine r. Adeane. . . . 99 
 
 Esdaile v. Stephenson . . . . 306 
 
 Eslick, r 516,-35 
 
 Espin v. Pemberton 418,-49.-54,-8,-9, 
 
 -62 
 Essex v. Baugh .. .. 407-18 
 
 v. Daniell . . . . . . ,312 
 
 Eton v. Sanxter . . . . 353,-61 
 
 Etty v. Bridges 434 
 
 European Bk. e. Oriental &c. Bk. 3f8 
 
 Evans r. Watkins 
 v. Bickley 
 v. Cheshire . . 
 v. Hallam 
 v. Hillier 
 v. Hooper . . 
 v. Llewellin . . 
 v. Rosser 
 v. Thomas . . 
 
 Evelyn v. Templar 
 
 Everitt v. Everitt . . 
 
 Evers v. Challis 
 
 Evestaff v. Austin . . 
 
 Ewen v. Bannerman 
 
 Ewer v. Corbett 
 
 Exham Mg. Co. 
 
 Exton v. Scott 
 
 Eyles v. Edwards . . 
 
 Eyres v. Faukland. . 
 
 Eyre v. Burmester. . 
 v. Dolphin . . 
 v. Marsden . . 
 v. McDowell 
 
 Eyston v. Thockmorton 
 
 Fagg'scase.. 
 
 Fairclaim v. Shakleton 
 
 334, Ad. 335 
 500,-8 
 .. 209 
 .. 575 
 272-3 
 .. 166 
 .. 121 
 . . 201 
 .. 212 
 555, 605 
 .. 128 
 255,-63 
 .. 214 
 292-3 
 .. 42 
 .. 568 
 .. 543 
 Ad. 71 
 220, Ad. 221 
 348 
 335,-46, 400 
 42 
 
 335,-46,-400 
 249 
 342 
 25
 
 LIST OF CASES CITED. 
 
 lxiii. 
 
 Page 
 
 Fairclough v. Marshall . . 159-60 
 
 v. Pavia . . . . 343 
 
 Fail lie v. Denton .. .. 154,-75 
 
 Faithful v. Ewen . . . . . . 1 1 ; S 
 
 Falcke v, Gray . . . . . . 151 
 
 Fane(exp.) . .' 139 
 
 v. Kane .. .. 281. 289 
 
 Fafebrother v. Gibson .. .. 304 
 
 v. Wodehouse 337,-49,-91 
 
 Farhall v. Farhall \d. 38 
 
 Farquharson v. Floyer . . 42 
 
 Farrar v. fohnson . . . . . . 437 
 
 Fairer v. S. Catherine College . . 105 
 
 Farrow v. Rees 354,-55,-56,452,500,-1 
 
 Fawcett v. Fearne. . 
 
 Feltham v. Clarke . . 
 
 Fenwick v. Bulman 
 
 Feret v. Hill 
 
 Ferguson v. redman 
 
 Ferrarrl v. Wilson . . 
 
 Ferrars v. Cherry . . 
 
 Ferrers v. Stafford. . 
 
 Ferry v. Williams . . 
 
 Feversham v. Watson 
 
 Fielden v Slater . . 
 
 Field v. Evans 
 
 v. Lonsdale . . 
 
 v. Moore 
 Fildes v. Hooker . . 
 Filmer v. (iott 
 Finch v. Shaw 
 
 v. Winchelsea 
 Finden v. Parker . . 
 Fisher r. Ash 
 
 v. Boucher . . 
 
 v. Brierley . . 
 
 v. Webster . . 
 Fitzer v. Fitzer 
 Fitzgerald v. Chapman 
 
 v. Faucon beige 
 Fitzgibbon v. Blake 
 Fitzmaurice v. Waugh 
 Fleet v. Perrins 
 Fleetwood 
 Fleming v. Neville 
 Fletcher r. Henley 
 v. Fletcher 
 v. Sondes 
 v. Manning 
 Flight v. Bolland . . 
 Flower v. Buller . . 
 Floyd v. Buckland 
 Floyer v. Bankes . . 
 Fludyer v. Cocker 
 Flureau v. Thornhill 
 Flyn, ex 
 Foley v. Burnell 
 
 573 
 
 393,-8 
 
 .. 155 
 
 291, 383 
 
 .. 303 
 
 .. 265 
 
 452,-7.544 
 
 .. 329 
 
 . . 29(3 
 
 .. 314 
 
 450,-51 
 
 .. 138 
 
 94, 322 
 
 .. 118 
 
 .. 305 
 
 .. 145 
 
 .. 449 
 
 .. 559 
 
 .. 207 
 
 .. 579 
 
 .. 569 
 
 .. 323 
 
 .. 266 
 
 .. 553 
 
 .. 69 
 
 400.-60 
 
 .. 139 
 
 .. 118 
 
 .. 55 
 
 Ad. 189 
 
 .. 412 
 
 .. 604 
 
 517,-8,-31 
 
 .. 2(14 
 
 528,-30,-2 
 
 148,-9 
 
 Ad. 137 
 
 .. 187 
 
 260, 333 
 
 .. 91 
 
 90, 103 
 
 .. 527 
 
 .. 75 
 
 
 Page 
 
 Follet v. Delaney . . 
 
 ..474 
 
 Forbes's claim 
 
 ..288 
 
 v. Deniston . . 
 
 413. 453. -60 
 
 v. Moffatt .. 
 
 .. 35 i 
 
 v. Watt 
 
 ..106 
 
 Ford r. Caighey . . 
 
 . . 499, 524 
 
 v. Beech 
 
 ..21 
 
 v. Cotesworth 
 
 .. 1D2 
 
 v. Grey 
 
 ..33 
 
 v. Older 
 
 ..574 
 
 v. Tynte 
 
 . . 338, 349 
 
 v. White 
 
 414,-33 
 
 Forrer v. Nash 
 
 .. 301 
 
 Forrest v. Prescott . . 
 
 . . 42 
 
 Forsbrook v. F orsbrook 
 
 242,-3 
 
 Forster v. Patterson 
 
 Ad. 28 
 
 Fortescue v. Barnett 
 
 .. 125 
 
 Forth v. Norfolk . . 
 
 ..417 
 
 Foss r. Baldwin 
 
 530,-2 
 
 Foster Si Lister, r. . . 
 
 554.-7 
 
 v. Bk. England 
 
 ..426 
 
 v. Charles . . 
 
 285,-6 
 
 v. Cockerell 338 
 
 -9,-93,-8,-432 
 
 Fourth city, &c, r (Mars 
 
 on v. Cox) 442 
 
 Fowkes v. Pascoe . . 
 
 .. 324 
 
 Fowler v. Foster . . 
 
 ..517 
 
 Foxcroft v. Wood . . 
 
 .. 330 
 
 Foxley v. Nurse 
 
 579,-82,-4-6 
 
 Fox v. Buckley 
 
 .. 3^0 
 
 v. Bp. Chester 
 
 .. 205 
 
 v. Fisher 
 
 .. 522,-5.-30 
 
 v. Hawkes 
 
 .. 503 
 
 v. Mackreth 
 
 ..191 
 
 v. Prickwood . . 
 
 ..358 
 
 Foy v. Hinde 
 
 . . 250 
 
 Frail v. Ellis 
 
 ..443 
 
 Frame v. Dawson . . 
 
 .. 18S 
 
 Franco v. Alvares . . 
 
 ..314 
 
 Franks v. Martin . . 
 
 ..107 
 
 Fraser v. Murdoch 
 
 Ad. 332 
 
 v. Swansea Co 
 
 .. 525 
 
 Frazer v. Thompson 
 
 . . 566 
 
 Frederick v. Frederick 
 
 218-19 
 
 Freeman v. Cooke 143, ' 
 
 185, 377, 495-6 
 
 v. Jefferies 
 
 . . 2S3 
 
 v. Pope ' 
 
 539,-40,-2,-8 
 
 Freere v. Hope 
 
 .. 421 
 
 v. Moore 
 
 ..431 
 
 Freke v. Carbery 
 
 272 
 
 French v. French . . 
 
 539.-41 
 
 Frere r. Sykes 
 
 535-6 
 
 Freshfield's trusts . . 
 
 ..391 
 
 Freshney v. Carrick 
 
 522,-3,-5 
 
 Frith, e. 
 
 ..469 
 
 v. Cartland . . 
 
 S31,-2 
 
 Frogmorton v. Wharry 
 
 233,-6 
 
 Fryer v. Morland . . 
 
 ..350
 
 lxiv. 
 
 LIST OF CASES CITED. 
 
 
 Page 
 
 
 Page 
 
 Fry v. Fish 
 
 ..359 
 
 v. Muskett . . 
 
 .. 593 
 
 Fuller v. Bennett . . 
 
 458-60 
 
 v. Overbury 
 
 . 432, 531 
 
 v. Chamier . . 
 
 231,-3,-4,-7 
 
 v. Spurrier. . 
 
 .. 298 
 
 v. Wilson . . 
 
 .. 285,-6.-8 
 
 Gilbertson v. Richards 
 
 .. 265 
 
 Funtes v. Montis . . 
 
 ..509 
 
 Gilbert v. Guignan, . 
 
 .. 428 
 
 Furber r. Pellew 515,-9, 
 
 -66,-7,-9,-82.-3- 
 
 v. Overton 
 
 . 125 
 
 
 Ad. 71 
 
 Gilbey r. Bedell . . 
 
 .. 573 
 
 v. Finlayson 
 
 ..518 
 
 v. Copley . . 
 
 .. 219 
 
 Fury v. Smith 
 
 407,-10 
 
 Giles v. Grover 
 
 .. 400 
 
 Gabarrowv. Mason 
 
 .. 423 
 
 Gillam v. Taylor . . 
 
 .. 275 
 
 Gale v. Gale 
 
 .. 164,-56,-8 
 
 Gill v. Downing 
 
 333-4 
 
 v. Lewis 
 
 458-9,-62, 522 
 
 Gilmour v. Supple. . 
 
 .. 429 
 
 v. Williamson 
 
 ..543 
 
 Gimblett v. Purton 
 
 226-7 
 
 Galsworthy v. Stnitt 
 Games r. Bamford . . 
 
 ..513 
 
 Girling v. Lowther 
 
 .. 605 
 
 543,-53,-83,-6 
 
 Gladstone v. Gladstone 
 
 . . 69 
 
 Garbut v. Hilton . . 
 
 ..311< 
 
 v. Had wen 
 
 .. 528 
 
 Garden v. Ingram . . 
 
 Ad. 196 
 
 v. Pad wick 
 
 . . 348 
 
 Gardiner v. Blessington 
 
 ..412 
 
 Glazebrook v. Woodrow . 
 
 .. 296 
 
 v. Painter 
 
 ..421 
 
 Glegg v. Rees 
 
 . 94,-9, 126 
 
 v. Tate . . 
 
 291-2 
 
 Glenorchy v. Bosville 
 
 .. 240 
 
 Gardner, e. . . 
 
 ..303 
 
 Glover v. Cope 
 
 .. 157 
 
 v. Cowles 
 
 ..441 
 
 v. Moore 
 
 . 399,-535 
 
 v. Lachlan 
 
 . . 435, 532,-3 
 
 Goddard v. Compton 
 
 . . 390 
 
 v. Savil . . 
 
 ..138 
 
 v. Snow . . 
 
 .. 561 
 
 Garland v. Brown . . 
 
 ..258 
 
 Godden v. Crowhurst 
 
 .. 246 
 
 v. Mead . . 
 
 . . 423 
 
 Goldney v. Crabb . . 
 
 .. 235 
 
 Gamett v. Acton . . 
 
 109,-53 
 
 Goldsmith v. Russell 
 
 512,-55 
 
 Garrard v. Lauderdale 
 
 ..98 
 
 Goleborn v. Alcock 
 
 . 391,-5, 401 
 
 Garratt v. Weeks . . 
 
 . . 226 
 
 Gomersall, re 
 
 .. 197 
 
 Garrett v. Wilkinson 
 
 .. 325 
 
 Gooche's case 
 
 .. 603 
 
 Garth v. Cotton 
 
 . . 326, 438 
 
 Gooch v. Gooch 
 
 . 258,-61,-5 
 
 v. Enfield 
 
 602,-5 
 
 Goodchild v. Dougal 
 
 .. 140 
 
 Gaskell v. Gaskell . . 
 
 .. 322 
 
 Goodier v. Clarke . . 
 
 .. 265 
 
 Gaslight I. Co. v. Terrell. . 595,-6 
 
 v. Johnson 
 
 Ad. 223 
 
 Gatenhy v. Morgan 
 
 .. 222 
 
 Goodill v. Brigham 
 
 .. 137 
 
 Gawan, r. . . 
 
 . . 526 
 
 Goodison v. Nunn . . 
 
 .. 296 
 
 Geary v. Phisic 
 
 ..425 
 
 Goodman's trusts . . 
 
 Ad. 35 
 
 Geaves r. Stahan . . 
 
 528,-9 
 
 v. Grierson 
 
 .. 315 
 
 Gedge v. Montrose 
 
 . . 3i>9 
 
 Goodricke v. Taylor, 540,- 
 
 55,-68,-85,-7 
 
 Gee v. Pearse 
 
 ..300 
 
 Goodright v. Cator 
 
 220,-2 
 
 General Estates Co. 
 
 Ad. 156 
 
 v. Mead . . 
 
 .. 251 
 
 Furnishing Co. 
 
 v. Venn 516 
 
 v. Moses 
 
 . 554, 603 
 
 Meat Co. v. Bourfler . . 607 
 
 v. Wells.. 
 
 . Ap. xxiv. 
 
 S. Am. Co. 
 
 .. 346, 503,-4 
 
 v. Wright 
 
 .. 233 
 
 S. T. Co. v. Chapman . . 336 
 
 Goodtitle v. Morgan 
 
 .. 500 
 
 George v. Milbanke 
 
 545, 603 
 
 v. Petto . . 
 
 .. 327 
 
 Gerhard t v. Bates . . 
 
 . . 82, 285,-7 
 
 Goodwin v. Fielding 
 
 .. 145 
 
 German v. Chapman 
 
 .. 174 
 
 v. Francis 
 
 .. 183 
 
 v. Ascot . . 
 
 . . 250 
 
 v. Robarts 156 
 
 , 424,-95,507 
 
 Gerrard v. O'Reilly 
 
 .. 458,-9,-61 
 
 Goold's estate 
 
 Ap. xx 
 
 Giacometti v. Willows 
 
 ..61 
 
 Gordon 
 
 .. 430 
 
 Gibson gds. of 
 
 . . 35 
 
 v. E. I. Co. 
 
 .. 524 
 
 Gibson 
 
 590-2 
 
 v. Gordon . . 
 
 105, 202,-81 
 
 r. Bolland . . 
 
 ..579 
 
 Gore v. Gibson 
 
 .. 120 
 
 v. Boutts . . 
 
 .. 592 
 
 v. McDermott 
 
 .. 476 
 
 v. Goldsmid 
 
 .. 306,-7,-37 
 
 Gorge's case 
 
 .. 604 
 
 v. Ingle 
 
 ..445 
 
 Goring v. Nash 
 
 . 266, 559
 
 LIST OF CASES CITED. 
 
 Ixv. 
 
 Page 
 
 Gossage v. Taylor . . . , . . 236 
 
 Gough v. Everard . . . 512,-8 
 
 Gourlay . . . . . . . . 370 
 
 Gover's case .. .. ..194 
 
 Gowan, r. . . . . . . Ad. 61 
 
 v. Tighe . . . . Ad. 89 
 
 Gowland v. De Faria . . 129, -32 
 
 Grady 346 
 
 Graham, r . . . . 335 
 
 v. Candy . . . . . . 595 
 
 v. Champion . . . . 579 
 
 v. Furber. . . . . . 541 
 
 v. Johnson . . Ad. 156 
 
 v. Oliver .. .. 301,-19 
 
 v. Wilcockson . . . . 513 
 
 Grange v. White .. .. Ad. 138 
 
 Grant, e 530,-2 
 
 Grantham v. Hawley .. ..212 
 
 Grant v. Grant .. .. 105, 124 
 
 v. Mills 328 
 
 Grey v. Warner . . . . . . 1 93 
 
 Great Eastern Co. v. Turner 528,- 
 
 9, Ad. 71 
 
 Northern R. Co.v.Withaml46,-8 
 
 Western R. Co. v. May 
 
 v. S 
 Greaves v. Tofield . . 
 Greener r. Vane 
 Greening v. Clarke 
 Greenslade v. Dare 
 Green v. Beckford 
 v. Carhill 
 v. Home 
 v. Ingham . . 379, 
 v. King 
 v. Low 
 v. Pulsford 
 v. Saddington 
 v. Sevin 
 Greenwood, ex. 
 Greenwood v. B. London 
 v. Churchill 
 v. Tyler 
 Greer, re 
 Gregg v. Wells 
 Gregory v. Mighell . . 
 Greig v. Somerville 
 Gresty v. Gibson . . 
 Greswold v. Marsh am 
 Gretton v. Diggles . . 
 
 v. Mees 
 
 Greysbrooke v. Fox 
 
 Grey v. Cutbertson 
 
 v. Friar 
 
 v. Grey 
 
 v. Montague . . 
 v. Pearson . . 
 
 366 
 mith 348,-58 
 46:3,-6 
 
 56 
 521 
 
 Ad. 
 
 546 
 
 76,-9 
 -30,-1 
 . 380 
 . 434 
 . 59 
 107 
 23, Ad. 381 
 33 
 307 
 447 
 185 
 301 
 567 
 205 
 455,-87 
 . 220 
 53,-6 
 , 508 
 . 104 
 . 38 
 . 219 
 . 355 
 , 1?1 
 . 108 
 . 39 
 . 171 
 Ad. 298 
 325,-26 
 253,-4 
 .. 107 
 
 Page 
 Grice v. Richardson 149, 377, Ad. 328 
 Griffin v. Stanhope . . . . 008 
 
 Griffiths v. Jones 282 
 
 v. Vere 272 
 
 Griggs v. Gibson .. .. ..Ill 
 
 v. Straplee 121 
 
 Grimson v. Downing . . . . 238 
 
 Gross, r. . . . . . . . . 593 
 
 Groves v. Perkins . . . . . . 292 
 
 Grove v. Bastard . . . . . . 447 
 
 Gubbins v. Gubbins . . . . 405 
 
 Guest v. Covvbridge R. Co. . . 335 
 
 v. Homfray . . . . . . 306 
 
 v. Smythe . . . . Ad. 282 
 
 Gulliver v. Ashbv . . . . 260,-1 
 
 v. Vaux .. .. 221,-2 
 
 Gunn's Case . . . . . . 107 
 
 Gunn v. Bolckow . . . . . . 428 
 
 Gunter v. Halsey . . . . . . 190 
 
 Gurney, ex. . . . . . . . . 530 
 
 Gurr v. Rutton 534 
 
 Gwynne, exp. . . . . . . 328 
 
 v. Heaton .. ..129 
 
 Habersham's case . . . . . . 596 
 
 Hackney Boro' of N. Co. Ad. Ap. i 
 Hadley v. Baxendale . . . . 103 
 
 Haigh v. Kaye . . . . 178-9 
 
 Haille v. Smith 428 
 
 Hakin v. Kilburn 41 
 
 Hale r. Binns .. .. 579.-80 
 
 v. Allnutt 584 
 
 v. Hale 257 
 
 v. Pew .. 242,-4,-55,-6 
 
 v. Webb . . . . Ap. xiv- 
 
 Hall, e 544 
 
 Hallett's estate .. .. Ad. 332 
 
 Hallett v. Mallet . . . . Ad. 330 
 
 Halliday r. Liebert. . 582,-4,-90,-2 
 
 Hallifax, e Ad. 448 
 
 Hailing v. Haydon. . .. 569,-70 
 
 Hall r. Townsend . . . . 542,-51,-65 
 
 r. Whitting . . . . Ad. 182,-9 
 
 v. Betty .. 85, Ad. 104 
 
 v. Carter . . . . . . 360 
 
 v. Day 527 
 
 v.Hall 128,133 
 
 v. Hallet\ .. .. 191,-2 
 
 v. Nottingham . . . . 29 
 
 v. Smith • . . ., . . 446 
 
 v. Wallace \. .. 571,-87 
 
 v. Warren . . . . . . lol 
 
 Halsey v. Grant . . . . 305, 306 
 
 Hamer v. Giles . . . . Ad. 336 
 
 Hamilton, re . . . . . . 406 
 
 Hamilton's W. I. W. e. Pitman. . 371 
 
 Hamilton v. Denny . . 333-34 
 
 v. Bell . . . . . . 527 
 
 ix.
 
 lxvi. 
 
 LIST OF CASES CITED. 
 
 
 Page 
 
 
 Page 
 
 Hamilton v. Chaine 
 
 .. Ad. 519 
 
 Harryman v. Collins 
 
 ..443 
 
 v. Mills 1 .. 
 
 .. 55 
 
 Harry v. Davey 
 
 ..155 
 
 v. Musgrove 
 
 477,-8 
 
 Hartley v. O'Flaherly 
 
 ..403 
 
 v. Royse 416,-21, 
 
 -43,-6,450,-2 
 
 v. Wilkinson 
 
 ..181 
 
 v. Wright 
 
 .. 191 
 
 Hart v. Hart 
 
 Ad. 104, 282 
 
 Ilamlyn v. Betteley 
 
 ..519 
 
 v. Swaine . . 93, 
 
 114, 289, 305 
 
 Hammersley v. De Beil 
 
 99, 108, 187 
 
 Harvey v. Cooke . . 
 
 .. 281,-2,-92 
 
 Hammond, gds. of. . 
 
 Ad. 36 
 
 v. Ramsbottom 
 
 . . 569 
 
 Ham i onds v. Barrett 
 
 .. 588 
 
 v. Smith . . 
 
 448,-9 
 
 Hampson v. Fellow 
 
 . Ad. 119 
 .. 262 
 .. 454 
 
 5:15,-6 
 
 Harvy v. Aston 
 Harwood v. Bartlett 
 
 .. 314 
 .. 579 
 
 Hampton v. Holman 
 Hanbury v. Lichfield 
 Hankey, r. Douglas 
 
 Haselford's estate . . 
 Hassall v. Wright. . 
 Hastie v. Couturier 
 
 ..338 
 . . 426 
 .. 103 
 
 Hannah v. Hodgson 
 
 . . 446 
 
 v. Hastie . . 
 
 ..330 
 
 Hansard v. Hardy . . 
 
 ..457 
 
 Hastings, gds. of . . 
 
 Ad. 36 
 
 Hanslip v. Padwick 
 
 Ad. 104 
 
 Hatchell v. Cremorne 
 
 305 
 
 Hanson v. Keating 
 
 ..337 
 
 Hatfield v. Minet . . 
 
 .. 34 
 
 v. Stevenson 
 
 ..171 
 
 Hatton, re . . 
 
 . . bl4 
 
 Harbin v. Masterman 
 
 .. 273 
 
 gds. of 
 
 Fur. ad. 184 
 
 Harcourt v. Knowel 
 
 ..391 
 
 's case 
 
 ..397 
 
 Hardcastle v. Hardcastle 
 
 ..266 
 
 v. May 
 
 ..249 
 
 Hardey v. Green . . 
 
 ..551 
 
 v. Neale 
 
 ..604 
 
 Harding (gds. of) . . 
 
 . . 55 
 
 Havergill v. Hare . . 
 
 ..437 
 
 Hardingham v. Nicholls 
 
 ..418 
 
 Hawes v. Leader . . 
 
 ..542 
 
 Harding r. Fairbrother 
 
 521,-2,-30 
 
 Hawker r. Keely . . 
 
 585-6 
 
 v. Harding 
 
 ..153 
 
 Hawkes v. Hubback 
 
 ..59 
 
 v. Knott . . 
 
 253,-4 
 
 Hawkins v. Holman 
 
 ..189 
 
 Hardman v. Johnson 
 
 ..197 
 
 v. Holmes 
 
 ..183 
 
 Hardwick v. Hardwick 
 
 .. 105 
 
 Hawthorne v. Newcastle R. Co. 522,-4 
 
 Hardy 
 
 ..450 
 
 Hawtry v. Butlin . . 
 
 ..516 
 
 v. Reeves . . 
 
 ..421 
 
 Haydon v. Kirkpatrick 
 
 ..35g 
 
 Hare v. Burges 
 
 ..267 
 
 Hayes v. Foorde . . 
 
 .. 232,-6,-45 
 
 Hargreaves v. Rothwell, 
 
 458,-9,-60,-1 
 
 v. Hayes 
 
 ..262 
 
 Harley v. King 
 
 ..170 
 
 v. Kingdome 
 
 322,-5 
 
 Harlock v. Ashberry 
 
 Ad. 26 
 
 Haygarth v. Wearing 
 
 288,-9, 376 
 
 Harman v. Fishar . . 
 
 ..596 
 
 Hayman v. Pulsford 
 
 ..525 
 
 v. Richards 
 
 ..554 
 
 v. Cooper 
 
 ..402 
 
 Harmer v. Johnson 
 
 ..599 
 
 Haynes, r. . . 
 
 ..519 
 
 Harnett v. Baker . . 
 
 ..292 
 
 Hayward v. Angel 
 
 ..315 
 
 v. Yielding 
 
 103, 151, 319 
 
 v. Cope . . 
 
 ..308 
 
 Harper v. Faulder . . 
 
 500,-1 
 
 Head v. Egerton . . 
 
 ..501 
 
 Hanington v. Harrington 
 
 ..259 
 
 Heap v. Tonge 
 
 ..553 
 
 v. Price, 379, 
 
 500, Ad. 381 
 
 Heard v. Wadham 
 
 ..296 
 
 Harrison r. Betts . . 
 
 Ad. 119 
 
 Heartley v. Nicholson 
 
 . . 124 
 
 v. Austin. . 
 
 ..327 
 
 Heaseman v. Pearse 
 
 .. 260,-1,-8 
 
 v. Cohen . . 
 
 576,-7 
 
 Heathcote, ex. 
 
 ..532 
 
 v. Forth . . 
 
 .. 391,421 
 
 Heath v. Cochrane 
 
 576-8 
 
 v. M. Southampton . . 275 
 
 v. Crealock . . 77-8 
 
 . 341, 379, 381 
 
 Harris's case 
 
 .. 107,-9, 147 
 
 v. Pugh 
 
 Ad. 26 
 
 Harris v. Barnes . . 
 
 ..235 
 
 Heaven 
 
 ..567 
 
 v. James 
 
 . . 357 
 
 Hebb's case 
 
 . . 107 
 
 v. Kemble . . 
 
 288-9 
 
 Heilbutv. Nevil 1 . . 
 
 ..594 
 
 v. Mott 
 
 ..137 
 
 Heinrich (the) 
 
 .. 561 
 
 v. Mulkern . . 
 
 ..74 
 
 Helsham v. Barnett 
 
 Ad. 128 
 
 v. Pepperell 
 
 94,282 
 
 Henderson v. C. d'E. d. 
 
 Paris . . 450 
 
 Harrop v. Fisher . . 
 
 ..425 
 
 v. Compton 
 
 ..446
 
 LIST OF CASES CITED. 
 
 lxvii. 
 
 
 Paoe 
 
 Henley 
 
 . 371 
 
 v. Phillips 
 
 . l:»9 
 
 Hcnnesy 
 
 . 462 
 
 Henry v. Armstrong . . Ad. 15 
 
 ! tep worth v. Hepworth . . 
 
 . 325 
 
 1 [erbert v. Salisbury . . 87, 
 
 313,-6 
 
 v. Sayer . . . . Ad. 70 
 
 v. Webster . . Ad. 258 
 
 v. Winchelsea 
 
 . 559 
 
 Hercules I. C. v. Brunton 
 
 . 433 
 
 Herman v. Hodges 
 
 . 151 
 
 ilenick v. Franklin 
 
 . 232 
 
 Hesentine v. Siggers 
 
 . 426 
 
 Hesse v. Stevenson 
 
 . 392 
 
 Heslop v. Baker . . 
 
 . 71 
 
 Hewison v. Negus. . 
 
 . 557 
 
 Hewitt v. Loosemore 388,-454 
 
 -61,-2 
 
 Heydon v. Thompson . . 15 
 
 6, 425 
 
 Hiatt v. Hillman 
 
 . 367 
 
 Hibernian Jt. Stk. Co. Bk. 
 
 . 590 
 
 Hickey, ex. . . 
 
 . 535 
 
 Hickley v. Hickley 
 
 . 192 
 
 Hick v. Phillips 
 
 . 305 
 
 Hidden v. Hooper. , 
 
 523,-7 
 
 Hide v. Man 
 
 . 217 
 
 Hiern v. Mill 
 
 . 449 
 
 Higinbotham v. Holmes . . 
 
 587-9 
 
 Higginson v. Clowes 
 
 . 292 
 
 v. Kelly 
 
 . 588 
 
 Higgins v. Northern &c. Co. A 
 
 d. 156 
 
 v. York Bg. Co. . . 
 
 . 420 
 
 Higgs v. Northern A. Co. 
 
 . 348 
 
 Hilliard v. Fulford . . 3 
 
 7, 282 
 
 Hillman v. Pumfrey 
 
 . 597 
 
 Hills v. Hills 
 
 . 429 
 
 Hill v. Ballard 
 
 . 326 
 
 v. Barclay 
 
 . 313 
 
 v. Boyle 
 
 . 207 
 
 v. Browne 
 
 . 197 
 
 v. Buckley 
 
 . 318 
 
 v. Crook 
 
 201,-2 
 
 v. Exeter (Bp.) 
 
 . 553 
 
 v. Gomme 
 
 . 163 
 
 v. Pritchard 26 
 
 0, 354 
 
 v. Roberts 
 
 . 580 
 
 v. Tupper 
 
 . 8n. 
 
 v. Wilson 
 
 . 108 
 
 v. Wormsley 
 
 . 42 
 
 Hilton v. Woods 
 
 . 206 
 
 Hine v. Dodd 
 
 . 460 
 
 Hinks 
 
 . 570 
 
 Hirton v. Sparkes 
 
 . 312 
 
 Hiorns v. Holtum 
 
 . 497 
 
 Hipkins v. Amery.. .. 4 
 
 49,-50 
 
 Hipwell v. Knight 
 
 . 302 
 
 Hirst v. Tolson . . 150, A 
 
 p. xiv. 
 
 Hitchcock v. Gidding 
 
 280-1 
 
 Page 
 
 Hitchcox v. Sedgwick .. 392,458 
 Hoare v. Walton .. .. .. 573 
 
 v. Dresser . . . . Ap. xix 
 
 v. Osborne 275 
 
 Hobartv. C. Suffolk .. ..325 
 
 Hobbs v. Hull 553 
 
 Hobby v. Collins . . . . 59 
 
 Hobson v. Wilson . . . . 402 
 
 Hocking v. Acraman .. .. 575 
 
 HoddeJ v. Pugh 153 
 
 Hoodgkin r. Softley 565,-90-1,-3,-5 
 Hodgkinson v. Cooper . . . . 450 
 
 Hodgson . . . . . . . . 442 
 
 v. E. Bective . . . . 324 
 
 v. Dean . . . . . . 453 
 
 v. Halford .. 200,-55,-69 
 
 v. Murray 396, Ad. 348,-96 
 
 Hogarth v. Phillips . . . . 555 
 
 Hoggard v. Mackenzie . . . . 523 
 
 Ho^ton v. Money . . . . . . 207 
 
 Hoi bird v. Anderson . . . . 543 
 
 Holden v. Hayn . . . . . . 175 
 
 Holderness v. Lamport . . 473,-4 
 
 v. Rankin . . . , 527 
 
 Hole v. Escot . . . . . . 353 
 
 Hoi ford v. Hatch 173 
 
 Holland v. Hodgson . .516, Ad. 5 
 
 Holliday v. Atkinson . . . . 142 
 
 Hollingsworth v. White . . . . 516 
 
 Holloway v. Millbard . . . . 542 
 
 v. Pollard . . . . 440 
 
 Holman v. Loynes. . .. ... 192 
 
 Holmes v. Blogg ... .. .. I17 
 
 v. Godson . . . . 221,-2,-69 
 
 v. Kidd . . . . . . 348 
 
 v. Penney 539-,42,-4,-9,-50,-l,- 
 87,-9 
 
 v. Powell 448 
 
 Holroyd v. Marshall 76, i21,-55, 212, 
 
 513,-71 
 
 Holt v. Dewell 435 
 
 v. Everall „. . 597 
 
 Homan v. Broadbent . . 515,-7,-23 
 v. Vining . . . . . . 514 
 
 Home v. Pillans 230 
 
 Honeycomb v. Waldron 406,-10 
 
 Honevman v. Marryat . . 110, 301 
 
 Hood' v. Phillips 323 
 
 Hook v. Kinnear . . . . Ad. 162 
 
 Hooper, e 188 
 
 v. Bourne . . . . 366 
 
 v.Clark .. .. 157,-70 
 
 v. Gumm 340, 474,504, Ad. 416 
 
 v.Smart 38,318,-9,-46,-7,-98,498 
 
 Hope v. Gloucester . . 257,-67 
 
 v. Hope . . . . 69 
 
 v. Liddell 456
 
 lxviii. 
 
 LIST OF CASES CITED. 
 
 
 Page 
 
 Hopgood v. Ernest 340, 449, 
 
 -58,-9,-60 
 
 Hopkinson v. Rolt 
 
 .. 418 
 
 Hopper v. Conyers 
 
 331,-2 
 
 Horlock, the, 
 
 .. 472 
 
 Horlock v. Priestley 396 
 
 -7,-401,-9 
 
 24,- 
 
 54,-503,-4 
 
 Horner r. Flintoff 
 
 311-3 
 
 v. Swann 
 
 350-2 
 
 Home v. Hughes 
 
 .. 520 
 
 v. Lymington RCo., 
 
 .. 366 
 
 Horniblow v. Shirley 
 
 .. 305 
 
 Hornsby v. Miller ... 
 
 522,-3 
 
 Horn v. Baker 
 
 .. 526 
 
 Honocks v. Rigby 
 
 318,-9 
 
 Horsey v. Graham 
 
 .. 179 
 
 Horsley's Patent 
 
 .. 470 
 
 Horton v. Smith 
 
 357,-89 
 
 Horwood, r. 
 
 528-30 
 
 Hoskiffls v. Gundry 
 
 Ad. 554 
 
 Hotton v. Play wood 
 
 Ad. 335 
 
 Houlditch v. Wallace 
 
 .. 395 
 
 Houlsworth v. City of Glasgow Ad. 237 
 
 Household &c Co. v. Grant 
 
 107,-9,-47 
 
 Howard v. Bk. England 
 
 .. 470 
 
 v. Norfolk 
 
 . 266 
 
 Howarth v. Dixon 
 
 .. 452 
 
 v. Mills 
 
 .. 202 
 
 Howell v. Coupland 
 
 .. 150 
 
 v. Kelly- 
 
 .. 406 
 
 Howes v. Young 
 
 569,-70 
 
 Howland v. Norris. . 
 
 86, 306 
 
 Howlin v. Sheppard 
 
 .. 27 
 
 Howton v. P rearton 
 
 .. 16 
 
 How v. Weldon . . 400, Ad. 129 
 
 Hoy v. Smithies 
 
 .. 106 
 
 Hubbard v. Bagshawe 
 
 526,-27 
 
 v. Jackson 
 
 .. 425 
 
 v. Johnstone 
 
 .. 427 
 
 v. Lees 
 
 .. 123 
 
 Huddleston v. Briscoe 
 
 96, 181 
 
 I ludson v. Stewart . . 
 
 .. 184 
 
 v. Temple. . 
 
 300,-2 
 
 Hughes 
 
 .. 393 
 
 v. Kearney 
 
 329 
 
 v. Lumley 
 
 408, 522 
 
 v. Morris 
 
 189, 474 
 
 Huguelin v. Baseley 
 
 .. 128 
 
 Hulkes v. Day 
 
 .. 434 
 
 Hulse v. Hulse 
 
 143,-S 
 
 Huraberstone v. Chase 
 
 .. 468 
 
 Humberston v. Humberston 
 
 241-3 
 
 Humlock v. Blacklow 
 
 .. 307 
 
 Humphrey v. Bullen 
 
 .. 34 
 
 v. Pratt 
 
 .. 287 
 
 Hunter v. Walters . . 
 
 452-97 
 
 Hunt-Foulston v. Furrier. . 
 
 .. 249 
 
 Hunt v. Bishop 
 
 3, App. x 
 
 Hunt v. Elmes 
 
 v. Mortimer . . 
 v. Remnant . . 
 
 Hurst v. Hurst 
 
 v. Jennings . . 
 
 Hussey v. Horne-Payne 
 
 Hutchinson v. Tennant 
 
 Hutley v. Hutley 
 
 Hutton v. Crutwell 
 
 Huxtable v. Conibeer 
 
 Hyde v. Wrench 
 
 Ibbetson v. Moore. . 
 
 Iddesley v. Naish 
 
 Ihler (goods of) 
 
 Imperial Bk. v. London &c, 
 
 Discount Co. . . 
 Imperial Ld. Co. e. 
 Inchiquin v. Burnell 
 Ingham v. Primrose 
 Ingle v. Richards . . 
 Ingram v. Soutten.. 
 Inman v. Soutten 
 
 Page 
 
 500,-1 
 
 ..594 
 
 . . 3, App. x. 
 
 313,-50-2, 452 
 
 ..599 
 
 95, 102,-47, 
 
 -78,-81 
 
 .. 98 
 206-7 
 676,-8 
 597 
 110 
 526 
 418 
 36 
 
 427-8 
 
 Larking 197, 444 
 
 Ad. 249 
 
 ..503 
 
 ..192 
 
 ..229 
 
 114 
 
 International Pulp Co. App. i, Ad.Ap.i 
 
 Irby v. Irby 
 Iredell v. Iredell . 
 Ireland (Bk. ol) v. 
 
 Iron v. Gorton 
 Irvine v. Sullivan . . 
 Isaac v. Hughes 
 Isaac v. Wall 
 Isitt v. Beeston 
 Izaid v. Cook 
 Jackson r. Bowes . . 
 
 i- Hall . . 
 
 v. Calvert 
 
 v. Cator . . 
 
 v. Irvin . . 
 
 v. Langford 
 
 v. Laycock 
 
 v. Oglander 
 
 v. Rowe . . 
 Jacques v. Millar . . 
 James, exp. 
 Jameson v. Brick &c. 
 James v. Condon . , 
 v. Lichfield . . 
 v. Whitbread 
 Jarman 
 
 Jarrett v. Aldams . . 
 
 Jay r. Blenkhorn 514, 524, Ad. 514,-5 
 
 r. Hammond . . . . 587-8 
 
 r. Powis 566 
 
 Jeakes v. White 185 
 
 Jee v. Audley . . . . . . 253 
 
 Jeffery 562 
 
 339-56 
 
 .. 227 
 
 Evans's Chanties 
 
 496, 505 
 
 ..150 
 
 ..165 
 
 ..143, 350-2 
 
 197-8, 333,-4 
 
 ..583 
 
 576,-8 
 
 .. 525,-89-90 
 
 576-8 
 
 234-5 
 
 . . 99 
 
 .. 523,-28,-9 
 
 ..390 
 
 . . 399, 40Q 
 
 ..181 
 
 450,-1 
 
 . . 85, 90, 92 
 
 .. 191,-2,-7 
 
 , Co. Ad. 70 
 
 569,-70, Ad. 282 
 
 ..319 
 
 . . 543,-6,-7 
 
 .. 336 
 
 113
 
 LIST OF CASES CITED. 
 
 lxix. 
 
 
 Page 
 
 Jefferys v. Jeffeiys 
 
 125,-4:!, 559 
 
 Jenkins v. Hiles 
 
 ..301 
 
 v. Keymiss 
 
 ..545,-6, 608 
 
 v. Monis . . 
 
 Ad. 116 
 
 v. Young . . 
 
 .. -110 
 
 Jcnkyn v. Vaughan 
 
 541,-8 
 
 Jennens, r. . . 
 
 Ad. 27 
 
 Jenner v. Turner . . 
 
 Ad. 201 
 
 Jennings, r. . . 
 
 .. 412 
 
 v. Broughton 
 
 290-1 
 
 v. Jordan . . 
 
 . . Ad. 349 
 
 v. Selleck 
 
 603,-7 
 
 Jersey, Briton Ferry Co. 
 
 .. 329 
 
 Jervis v. Wolferstan 
 
 37, 168 
 
 Jesson v. Wright . . 
 
 .. 238 
 
 Jeston v. Kay 
 
 544, Ad. 306 
 
 Joel v. Mills 
 
 .. 249 
 
 Johnson, r. . . 
 
 Ad. 38 
 
 v. Burgess 
 
 Ad. 335 
 
 v. Credit &c. Co 
 
 496, 509 
 
 v. Crook . . 
 
 Ad. -J -J 3 
 
 v. Fezemayer 
 
 593.-5 
 
 v. Gallaher 
 
 .. 137 
 
 v. Holdsworth 
 
 Ap. xvii 
 
 v. Johnson 
 
 .. 318 
 
 v. Legard . . 
 
 .. 560, 6<1 
 
 v. Renton 
 
 .. 426 
 
 v. Smart . . 
 
 .. 304 
 
 Johnstone v. Cox . . 
 
 Ad. 383, 433 
 
 Johns v. James 
 
 98, 100 
 
 Jolland v. Stainbridge 
 
 .. 407 
 
 Jolly v. Arbuthnot 
 
 .. 525 
 
 Jombart v. Woollett 
 
 535-6 
 
 Jones v. Badley 
 
 ..188 
 
 v. Clifford . . 106, 
 
 v. Croucher 
 
 .. 604 
 
 v. Dwyer 
 
 .. 532 
 
 v. Dyke 
 
 .. 103 
 
 v. Evans 
 
 .. 318 
 
 v. Farrell . . 
 
 .. 318 
 
 v. Frost 
 
 . Ad. 336 
 
 v. Gibbons 398, 
 
 410, 526,-35 
 
 v. Gordon 389, 539,-40,-42,-4,- 
 
 
 50,-65,-79 
 
 v. Harber 
 
 . . 566,-83,-6 
 
 v. Jones . . 117 
 
 -42, 201, 398 
 
 v. King 
 
 .. 153 
 
 v. Lock 
 
 .. 123 
 
 v. Mitchell . . 
 
 .. 324 
 
 v. Powles . . 
 
 391,-5 
 
 v. Rimmer . . 
 
 Ad. 292 
 
 v. Smith .. 442,-7,-8,-52,-5 
 
 v, Stanley . . 
 
 .. 418 
 
 v. Stohwasser, 
 
 504, Ad. 38 
 
 v. Victoria &c. Co. 
 
 .. 182 
 
 v. Whittaker 
 
 .. 602 
 
 v. Williams 448,-52, Ad. App. i 
 
 Page 
 
 Johnston v. Crooke . . Ad. 223 
 
 Jonston v. Renton . . . . . . 408 
 
 Jordan v. Adams .. .. .. 233 
 
 Jorden v. Money 81,-2, 99,108,-45, 235 
 Jourdain v. Wilson .. .. 157 
 
 Joyce v. d.Moleyns .. 37'.', -so 
 
 Joy v. Birch .. .. 88,315 
 
 v. Campbell . . . . 528,-9 
 
 Jthell v. Beane . . . . 545,-6 
 
 Judd v. Green .. . Ad. 129 
 
 Judson v. Bowden.. .. .. 307 
 
 Jull v. Jacobs . , . . 213,-4, 228 
 
 Justice v. Wynne . . . . . . 395 
 
 Karet v. Kosher M. Ass. . . 519,-20 
 Ka\ v. Johnston . . . . . . 333 
 
 v. Smith . . . . us 
 
 Keane, r 335 
 
 Kearley v. Clayton's Contract . . 564 
 Kearns v. Darrell . . . . . . 144 
 
 Kearsley v. Oxley .. .. .. 171 
 
 v. Woodcock . . . . 250 
 
 Keats v. Sparrow . . . . . . 312 
 
 v. Cadogan . . . . . , 293 
 
 v. Lyon 160 
 
 Keate v. Phillips Ad. 80, 346,-97 
 
 Keech v. Sandford. . . . . . 194 
 
 Keeling v. Morris .. .. .. 171 
 
 Keene v. Beard . . . . . . 425 
 
 Keer v. Brown . . . . 53 
 
 Keith v. Burrows . . . . 445,-96,- 
 
 503,-4 
 Kekewich v. Manning 77, 12?, -5, 560 
 
 Kellett v. Kellet 324 
 
 Kelly v. Hutton . . . . . , 348 
 
 v. Smith Fleming & Co. . . 594 
 v. Webster . . 185, Ap. xiv 
 
 Kelsall, e 535 
 
 Kelsall v. Bennett. . .. ., 456 
 
 Kelson v. Kelson . . . . . , 544 
 
 Kemble v. Farren.. .. .. 313 
 
 v. Mills 296 
 
 Kemeys v. Procter .. 183-,4 
 
 Kemp r. Fastnedge . . . . 526 
 
 Kempson v. Ashbee . . 113,-32,-3 
 
 Kennard v. Futvoye .. .. 317 
 
 v. Kennard , . 77, 123 
 
 Kennedy v. Green 445, -6,-50,-8,-9, -60,- 
 
 1,-2,-97 
 
 Kennedy v. Lee .. .. HO, 1 47 
 
 v. Woods . . , . 477 
 
 Kenneys v. Hansard . . 12 1 
 
 Kennys v. Summervell . . . . 446 
 
 Kenny v. Brown . . . , 447 
 
 Kensington, ex .. ., 528,-9 
 
 Kensington v. Bouverie . . , . 323 
 
 Kent v. Freehold Sec, Co. . . 567 
 
 v. Riley . . . . 542,-51
 
 Ixx. 
 
 LIST OF CASES CITED. 
 
 
 Page 
 
 
 Page 
 
 Keppell v. Bailey . . 
 
 2, 172 
 
 Kusel v. Watson . . 
 
 .. 104 
 
 Kerrison v. Dorrien 
 
 .. 605 
 
 Lacey, exp. . . 
 
 .. 191 
 
 Kerr's trusts 
 
 .. 202 
 
 ' v. Hill 
 
 461.-2 
 
 Kershaw v. Kershaw 
 
 86-7 
 
 v. Ingle 
 
 .. Iii2 
 
 Koran r. Maw.son . . 
 
 576-8 
 
 Lachlan v. Reynolds 
 
 .. 301 
 
 v. Crawford 544,. 5S 
 
 ,-4,-8,-94,-5 
 
 Lacon v. Liffen 151,473, 
 
 530,-1,-78, 9 
 
 Kevern v. Williams 
 
 . . 226 
 
 Ladbrook v. Lee . . 
 
 . 445,-52,-6 
 
 Key r. Skinner 
 
 569-70 
 
 Lallv v. Concannon 
 
 .. 476 
 
 Kiddill v. Farnell . . 
 
 .. 144 
 
 Lama re v. Dixon . . 
 
 .. 289 
 
 Kidson v. Dilworth 
 
 .. 416 
 
 Lamas v. Bayly 
 
 .. 151 
 
 Kiggil v. Player . . 
 
 . . 566 
 
 Lambert v. Overton 
 
 .. 124 
 
 Kilner, e. . . 
 
 .. 580 
 
 Lambes v. Eames . . 
 
 .. 87 
 
 r. Barker 
 
 . . 579 
 
 Lambe v. Orton 
 
 124,-5 
 
 Kilpin v. Kilpin . . 
 
 .. 32(3 
 
 Lampet's Case 
 
 . 378 
 
 Kinderley v. Jervis 
 
 .. 399 
 
 Lampleigh v. Braithwaite 
 
 142,-3 
 
 King.. .. 
 
 Ad. 104, --.'4 
 
 v. Lampleigh 
 
 .. 325 
 
 Kingdon v. Nottle.. 
 
 .. 158 
 
 Lanccster Canal Co. 
 
 522,-38 
 
 King r. Harpier 
 
 .. 3! 4 
 
 Landowners Sec. Co. v. 
 
 Ash ford 
 
 r. King 
 
 576-8,-85,-6 
 
 
 519, Ad. 333 
 
 Kingsman v. Kingsman . 
 
 . Ad. 117 
 
 Lane 
 
 .. 460 
 
 Kingston v. Gross . . 
 
 .. 339 
 
 v. Jackson . . 380,-92, it 
 
 Kingswell's Case . . 
 
 .. 212 
 
 Langford v. Pitt 
 
 .. 301 
 
 King v. Boxford . . 
 
 ... 204 
 
 Langham v. Nenny 
 
 .. 323 
 
 v. Boys 
 
 .-. 440 
 
 Langley v. Hammond 
 
 .. 18 
 
 v. Burchell . . 
 
 .. 250 
 
 Langton v. Horton 
 
 . 393,-98,-9 
 
 v. Cotton 
 
 . . 561 
 
 Lanham v. Pirie 
 
 .. 400 
 
 v. Denison . . 
 
 .. 324 
 
 Landsdown v. Landsdowi 
 
 .. 282 
 
 v. Hamlet . . 129 
 
 ,-32, 209,-10 
 
 Lantsbery v. Collier 
 
 255, -7i 
 
 v. Hornchurch 
 
 .. 424 
 
 Larges's Case 
 
 .. 250 
 
 v. King 
 
 .. 186 
 
 Latimer v. Batson . . 
 
 .. 550 
 
 v. Lambe 
 
 .. 400 
 
 Latsuche v. Dunsany 
 
 410,-53 
 
 v. Melling . . . 
 
 350-2 
 
 Lavender v. Blackstone 
 
 .. 608 
 
 v. Oundle 
 
 212,-5 
 
 Lawes v. Gibson 
 
 .. 91 
 
 v. Smith 
 
 .. 400 
 
 Lawless v. Kenny . . 
 
 410,-3 
 
 v. Wightman 
 
 . . 308 
 
 Lawrence v. Fletcher 
 
 .. 336 
 
 v. Wilson 
 
 .. 318 
 
 v. Hitch. . 
 
 29, 30 
 
 Kinsman v. Kinsman 
 
 . Ad. 342 
 
 v. Twentiman 
 
 .. 310 
 
 v. Rouse 
 
 Ad. 28 
 
 Lawton v. Swetenham 
 
 .. 361 
 
 Kirkham v. Smith 
 
 324,-4 
 
 Layard v. Maud 
 
 .. 502 
 
 Kirk v. Clark 
 
 545,-54 
 
 Lay v. Mottram 
 
 . . 95 
 
 Kirtland v. Founsell 
 
 .. 103 
 
 Lazarus v. Andrade 
 
 Ad. 212 
 
 Kitchen v. Ibbetson 
 
 .. 530 
 
 Leake v. Young 
 
 .. 578 
 
 v. Hawkins 
 
 .. 282 
 
 Leaman v. Barrand 
 
 .. 341 
 
 Knapman, r. 
 
 Ad. 333 
 
 Lear v. Ash well 
 
 .. 604 
 
 Knapping v. Tomlinson . 
 
 .. 269 
 
 Leask v. Scott 
 
 377,-90 
 
 Knatchbull v. Greuber 
 
 .. 304 
 
 Leather Cloth Co., v. Loi 
 
 sont . . 206 
 
 Knights v. Wifl'en.. 
 
 .. 377 
 
 Lea v. Whitaker . . 
 
 . . 312 
 
 Knight v. Boughton 
 
 .. 97 
 
 Lechmere v. Lloyd 
 
 Ad. 218 
 
 v. Bowyer. . 
 
 .. 448 
 
 v. Brasier 
 
 .. 301 
 
 v. Gould . . 
 
 .. 226 
 
 Leech v. Leech 
 
 503 
 
 v. Knight . . 
 
 . Ad. 61 
 
 v. Schweder 
 
 .. 150 
 
 v. Peacock 
 
 .. 383 
 
 Leese v. Martin 
 
 339 
 
 Knott, exp 
 
 . 391,-2, 431 
 
 Lees v. Whiteley . . 
 
 . . 524 
 
 Knowles v. Horsfall 
 
 523,-7 
 
 Lee v. Armstrong . . 
 
 . . 441 
 
 Knowlman v. Bluett 
 
 .. 185 
 
 v. Clutton 
 
 407 
 
 Knox v. Turner 
 
 315,-6 
 
 v. Colshill 
 
 608,-9 
 
 Kronheim v. Johnson 
 
 .. 183 
 
 v. Green 
 
 463,-4
 
 LIST OF CASES CITED. 
 
 
 Page 
 
 v. Hart 
 
 . . 579 
 
 v. Hewlett 
 
 393,-8 
 
 v. Lee 
 
 . . 95 
 
 v. Olditig 
 
 ..361 
 
 Legge v. Croker . . 
 
 285-7,-9 309 
 
 Leggott v. Metr. R. Co. 
 
 ..92 
 
 Lehman v. Me Arthur 
 
 30, 303 
 
 Leigh v. Antrobus . . 
 
 .. 350 
 
 v. Ashburton 
 
 ..353 
 
 v. Jack, 
 
 Ad. 27 
 
 v. Leigh 
 
 . . 125, 462 
 
 v. Lloyd 
 
 .. 14ii 
 
 Le Marchant v. Le Marchant . . 98 
 
 Lempriere v. Lange 
 
 . . 289 
 
 Lenehan v. ile Cabe 
 
 ..461 
 
 Le Neve v. Le Neve 405 
 
 -13,-7,-58-61 
 
 Leonard v. Bacon . . 
 
 ..539 
 
 Lepine v. Perrard . . 
 
 . . 253,-4,-63 
 
 Leroux v. Brown . . 
 
 .. 180 
 
 Leslie v. Fitzpatrick 
 
 ..117 
 
 Leslie v. Tempson 
 
 306,-21 
 
 Lester v. Foxcroft . . 
 
 .. 185 
 
 v. Garland . , 
 
 ..588 
 
 Levy v. Creighton . . 
 
 ..544 
 
 Lewer v. Wilkes . . 
 
 ..433 
 
 Lewis r. 
 
 ..564 
 
 r. Henderson 
 
 ..518 
 
 v. Brass 
 
 . . 96 
 
 v. Campbell 
 
 ..157 
 
 v. Henderson 
 
 ..514 
 
 v. Hopkins . . 
 
 .. 235 
 
 v. Lechmere 
 
 ..300 
 
 v. Ross 
 
 ..602 
 
 Leyland v. Illingworth 
 
 . . 304 
 
 v. Stewart . . 
 
 Ad. 180 
 
 Lickbarrow v. Mason 
 
 ..377 
 
 Liddon v. Ellison . . 
 
 ..268 
 
 Life Association, &c., v. 
 
 Siddal . 330 
 
 Lightburn v. Gill . . 
 
 221-2 
 
 Lightfoot v. Heron 
 
 ..119 
 
 Lima Banco d. v. Anglo-Peruvian 
 
 Bk 377, 425,-8,-60 
 
 Lincoln v. Wright. . . . 178, 188-9 
 
 Lindon v. Sharp .. ., 575,-8,-9 
 
 Lindsay v. Gibbs . . . . . . 472 
 
 Lindsay Petroleum Co. v. Hurd . . 93 
 Line v. Hall .. .. 241,-2,-4 
 
 Lingard v. Messiter . . 526,-7,-33 
 
 Lingham v. Biggs. . . . . . 528 
 
 Linton v. Bartlett 590 
 
 Lister v. Tidd . . . . 391,-8 
 
 v. Turner . . . . . . 603 
 
 Lithgow v. Fenton . . . 570 
 
 Littledale v. Pears . . . . 535 
 
 Liverpool Borough Bank v. Turner 
 
 151, 472, 528-9 
 Liverpool Loan Co. r. Bullen 569-70 
 
 Page 
 
 Liverpool Marine Credit Co. v. Wilson 
 472Ad. 398 
 Livesay v. Hood . . 
 Livesey v. Harding 
 Lloyds v. Harper . 
 Lloyd v. Attwood . . 
 
 v. Banks 
 
 v. Heathcote 
 
 v. Lloyd 
 
 ..523 
 
 .. 391 
 
 .. Ad. 162 
 
 395, 460, 606 
 
 379, 432,-3,-6 
 
 .. 569 
 
 .. 544 
 
 .. 326 
 
 .. 575 
 
 525,-8 
 
 .. 26 
 
 .. 296 
 
 179,-89 
 
 . . 55-6 
 
 104, 354 
 
 .. 325 
 
 576,-7.-8,-85-7 
 
 325 
 
 139 
 
 Ad. 
 
 Puoh 
 
 Loader v. Hiscock. 
 Load v. Green 
 Locking v. Parker . 
 Lock v. Wright 
 Loftus v. Maw 
 Loftus's case 
 Logan v. Weinholt 
 Lomas v. Wright . 
 Lomax v. Buxton 
 
 v. Whitley. 
 London Sec, Bank v. Bogl 
 London & Co. Bk. v. Ratcliffe Ad. 345, 
 
 418 
 London Chartered Bk. v. Lemprierel37 
 v. White . . 339 
 London &c. Co. . . 401,-26,-42,-69 
 London Guarantee Co. v. Fearnley 
 Ad. 305 
 London, Bp., v. Ffytche . . . . 204 
 
 London v. Milford . . . . 303 
 
 Longbottom v. Berry . . . . 516 
 
 Longhead v. Phelps . . . . 266 
 
 Longley v. Longley . . . . 324 
 
 Long v. Blackball . . . . . . 252 
 
 v. : : lllar . . . . Ad. 181 
 
 v. Rankin . . . . 351,-3,-4 
 
 Lord v. Bunn . . . . . . 246 
 
 v. Colvin . . . . . , 534. 
 
 v. Stephens 308 
 
 Lougher v. Williams . . . . 153 
 
 Loveday v. Winter . . . . 424 
 
 Lovell v. Newton . . . . Ad. 60 
 
 Loveridge v. Cooper . . 388,-9,-93 
 
 Lovering r. Jones .. .. 521,-8 
 
 Lovesyv. Smith .. ..Ad. 94, 1 21 
 
 Lovie's case . . . . 221,-62 
 
 Lowrey v. Barker . . . . Ad. 72 
 
 Lowther v. Carleton . , . . 460 
 
 Lucas 393 
 
 v. Dicker 530 
 
 v. Dorrien . . . . . . 575 
 
 Luffkin v. Nunn . . . . . . 421 
 
 Luff v. Lord 193 
 
 Luker v. Dennis . . . . . . 174 
 
 Lukey v. Higgs . . . . 321 
 
 Lumsden v. Frazer . . 88 
 
 Lunn v. Thornton. . .. .. 212
 
 lxxii. 
 
 LIST OF CASES CITED. 
 
 Lush's trusts 
 
 Lyde v. Mynn 
 
 Lyle v. Richards . . 
 
 Lynall's trusts 
 
 Lyons v. Tucker 516,-7, 
 
 Lyon v. Fishmonger's Co 
 
 v. Home 
 
 v. Reed 
 
 v. Weldon . . 
 Maas v. Sheffield . . 
 Macarthur r. Ramsden 
 Macbryde v. Weeks 
 Macdona v. Swiney 
 Mackay v. Commercial Bank 
 
 .. 285 
 
 .. 225 
 
 .. 105 
 
 Ad. 135 
 
 Ad. 514,-6,-7 
 
 16 
 
 2 SI I 
 
 133 
 180 
 524 
 139 
 600 
 300 
 . 550 
 285-6 
 
 v. Douglas 539,-41,-2,-8,-9,-55 
 Jeavons 393, 513,-87,-8 
 
 r. Wright 
 Mackenzie v. Bent 
 Mackett v. Mackett 
 Mackintosh v. Barber 
 Mackrell v. Hunt . . 
 Mackreth v. Symmons 
 Macleay 
 
 Macqueen v. Farquhar 
 Maddeford v. Austwick 
 Maddox, exp. 
 
 v. Maddox 
 Magawley's trusts 
 Magdalen College Case 
 
 .. 526 
 
 579,-95,-6 
 
 .. 97 
 
 .. 191 
 
 89,90 
 
 329, 416 
 
 247,-8 
 
 304, 447 
 
 . . i45 
 
 .. 91 
 
 458,-9,-60 
 
 .. 540 
 
 410, 644 
 
 Hospital v. Knotts 27, 114,-5 
 
 Magee v. Lavell 
 Magennis v. Fallon 
 Magrane v. Archibald 
 Main v. Melbourne 
 Mainwaring v. Baxter 
 Maitland v. Backhouse 
 Malcolm v. Chai lesworth . 
 
 v. Taylor. . 
 Malpas v. Ackland 
 Manby v. Cremonini 
 Mangles v. Dixon 
 Manners v. Johnson 
 Mannington v. Tolman 
 Manson v. Thacker 
 
 Manton v. Moore . . 
 Mapleback 
 March v. March 
 
 v. Russell . . 
 Margaret Mitchell, the . 
 Marine &c, Co. r. . . 
 Marjoribanks, 
 
 311,-13 
 76, 84, 304 
 317 
 189 
 250 
 446 
 412 
 252,-4,-63,-6 
 450,-2 
 .. 296 
 .. 427 
 159,-61 
 506,-8 
 77, 285, 
 9,-95, 309 
 .. 521 
 576,-8 
 .. 69 
 Ad. 38 
 .. 474 
 .. 520 
 .. 591 
 
 Hovenden 418,58,-9.-61 
 Marks v. Feldman . . 566,-8,-90,-2 
 
 Markwich v. Hardingham . . Ad. 26 
 Marlborough v. Godolphin . . 360 
 
 Marrable r. Brown . . . . 527 
 
 Marsden v. Meadow 
 v. Moore 
 
 Marshall, r 
 
 v. Collett 
 v. Crutwell 
 v. Lamb 
 
 Marsh v. Brace 
 v. Lee 
 
 Marson v. Cox 
 
 Martin, e. . . 
 
 Martinez, 
 
 v. Cooper 
 
 Martin v. Gale 
 
 Page 
 
 Ad. 515 
 
 ..296 
 
 ..528 
 
 ..389 
 
 ..326 
 
 590-2 
 
 ..175 
 
 376,-88,-90,-3,-4 
 
 ..442 
 
 .. 530 
 
 ..442 
 
 ..502 
 
 118 
 
 v. Martin 223, Ap. xvi, 603 
 Maiylebone &c, exp Edwards 95,-109 
 
 Mason & Taylor r Ad. 335 
 
 re 102 
 
 v. Mason . . . . . . 441 
 
 v. Armitage .. ..Ad. 121 
 
 v. Shaftesbury, &c 31 
 
 Massey, ex. . . .. ... .. 525 
 
 Masters v. Ibberson . . . . 421 
 
 Master v. Hansard . . 160, 161 
 
 Maston v. Willoughby 311,-4,-5 
 
 Mather v. Frazer 516,-76-8,-84 
 
 Matthews v. Antrobus . . 339, 350 
 v. Baxter 113,-4,-9,-120 
 
 v. Feaver . . . . 551 
 
 v. Gabb .. 434,-6, 533 
 
 v. Jeffry . . Ad. 45 
 
 v. Keble . . 272 -3 
 
 Matthew v. Gt. Northern A. Co. I54 
 
 Mattock v. Kinglake . . 296-7 
 
 Maundrell v. Maundrell . . . . 431 
 
 Maudsley v. Maudsley . . . . 69 
 
 Maunsell v. White 79, 82, 95, 99, 285 
 Mavor v. Croome . . . . . . 594 
 
 Maw v. T .pham . . . . 318-20 
 
 Maxwell v. Burton 394, 401,-18,-449 
 Maychell, gds. of, . . . . Ad. 36 
 
 Mayd v. Field 137 
 
 Mayo's case . . . . . . 467 
 
 Mayouv. Edwards- Wood 549,.50-,82,-4 
 
 May v. May 316 
 
 McBurnie . . . . . . 544,-51 
 
 McCalmont v. Rankin . . . . 474 
 
 McCarthy 442 
 
 v. Decaix . . . . 292 
 
 McCormick v. Grogan 165,-88, Ad. 189 
 McCulloeh v. McCulloch. . . . 566 
 
 McDonagh's estate . . . . 407 
 
 McDonegal v. Grey ... . 358 
 
 McDonnell v. McKinty . . . . 27 
 
 McKay's case . . . . . . 195 
 
 McKenzie v. British &c.Co.496,Ad.287 
 v. Hesketh . . . . 318 
 
 McKewan v. Sanderson . . . . 590
 
 LIST OF CASES CITED. 
 
 Ixxiii. 
 
 
 
 
 Pnge. 
 
 
 
 
 Page. 
 
 McKinney's estate 
 
 . . 
 
 
 406 
 
 Mills v. Seward 
 
 
 
 238 
 
 McLean v. McKay 
 
 . , 
 
 169, 
 
 160 
 
 Mill v. Hill 
 
 396, 
 
 405J 
 
 406 
 
 McLeod v. Buchanan 
 
 a a 
 
 p , 
 
 434 
 
 Milnes v. Branch . . 
 
 
 
 158 
 
 McManus v. Bark 
 
 1 1 
 
 
 144 
 
 Milroy v. Lord 
 
 
 
 124 
 
 Mc Murray v. Spicer 
 
 .. 
 
 
 301 
 
 Minister r. Price 
 
 
 
 518 
 
 McNeill v. Cahill 405, 
 
 414 
 
 , Ad. 
 
 343 
 
 Minors v. Battison 
 
 
 
 223 
 
 McPherson v. Watt 
 
 
 192, 
 
 194 
 
 Minshull v. Oakes 
 
 . . 
 
 171, 
 
 172 
 
 McQueen v Farquhar 
 
 
 306, 
 
 419 
 
 Mitchell v. Reynolds 
 
 
 
 206 
 
 Meade v. Webb 
 
 
 . , 
 
 292 
 
 Mocatta v. Bell 
 
 
 
 341 
 
 Mead r. 
 
 
 Ad. 
 
 26 
 
 v. Murgatroyd 
 
 
 
 356 
 
 Meagban r. 
 
 
 588, 
 
 589 
 
 Moens v. Heyworth 
 
 285, 
 
 286, 
 
 290 
 
 Measure v. Gee 
 
 
 
 233 
 
 Moldaut r. Hunter 
 
 
 528, 
 
 529 
 
 Medley v. Horton 
 
 354, 
 
 355, 
 
 356 
 
 Molony v. Kennedy 
 
 
 
 59 
 
 Meek v. Kettlewell 
 
 
 124, 
 
 125 
 
 v. Kernan 
 
 . . 
 
 418, 
 
 446 
 
 Meggison v. Foster 
 
 
 
 545 
 
 Molton v. Camroux 
 
 . , 
 
 113, 
 
 116 
 
 Meggy v. Imperial Disct 
 
 *Co 
 
 71, 
 
 
 Moneypenny v. Dering 
 
 214, 
 
 223, 
 
 
 498, 499, 
 
 521 
 
 Ad. 
 
 70 
 
 228 
 
 ,242 
 
 255, 
 
 267 
 
 Megson v. Hindle 
 
 
 Ad. 
 
 202 
 
 v. Moneypt 
 
 jnny 
 
 
 168 
 
 Meller v. Spateman 
 
 
 
 8 
 
 Monsell v. Armstrong 
 
 . . 
 
 
 36 
 
 Menzies v. Ligbtfoot 
 
 
 
 418 
 
 Montacue v. Maxwell 
 
 . , 
 
 81, 
 
 1U8 
 
 Mercer v. Peterson. . 576-9, 
 
 583, 
 
 585 
 
 Montague r. O'Brien 
 
 , , 
 
 535, 
 
 572 
 
 Meredith's trusts . . 
 
 
 
 228 
 
 Montetiore v. Behrens 
 
 
 247, 
 
 588 
 
 Meredith v. Heneage 
 
 
 97 
 
 , 98 
 
 v. Browne 
 
 , , 
 
 
 456 
 
 v. Jones 
 
 
 
 640 
 
 Moody v. Steggles 
 
 
 Ad 
 
 . 6 
 
 Merrick's trusts 
 
 
 
 229 
 
 Moore &c. Bg. Co. v. Armytage . . 
 
 516 
 
 Merrill v. Merton . . 
 
 
 Ad. 
 
 105 
 
 Moore v. Clench . . 
 
 . , 
 
 Ad. 
 
 196 
 
 Merry v. Abney 
 
 
 458, 
 
 459 
 
 v. Crofton . . 
 
 
 
 554 
 
 Mertins v. Jolliffe 
 
 
 
 450 
 
 v. Culverhouse 
 
 
 , , 
 
 406 
 
 Messenger e. Calvert 
 
 
 
 336 
 
 v. Darton 
 
 
 . . 
 
 179 
 
 Mestaer v. Gillespie 
 
 
 , , 
 
 318 
 
 v. Hall 
 
 
 
 31 
 
 Metcalf v. Fowler 
 
 
 Ad. 
 
 104 
 
 v. Mahon 
 
 
 
 413 
 
 v. Pulvertoft 
 
 
 343, 
 
 603 
 
 v. Moore 
 
 
 124, 
 
 126 
 
 Metham v. Devon 
 
 
 201, 
 
 203 
 
 v. Morris 
 
 
 
 59 
 
 Metropolitan Bk. v. Heiron 
 
 Ad. 
 
 27 
 
 Moor v. Hawkins . . 
 
 - . 
 
 
 225 
 
 Metropolitan D. B,. Co. r. 
 
 Cosh .. 
 
 366 
 
 Morecock v. Dickins 
 
 
 
 392 
 
 Metropolitan R. Co. v. Defries 
 
 
 91 
 
 More v. Mayhow . . 
 
 
 
 418 
 
 Meux, e. 
 
 
 
 502 
 
 More wood v. South Yorkshire R.Co 
 
 545 
 
 Meux v. Bell 
 
 432, 
 
 433, 
 
 436 
 
 Morgan, r. Ad. 37 
 
 345, 
 
 380 
 
 v. Jacobs 
 
 5, 
 
 393, 
 
 516 
 
 Morgan v. Brundrett 
 
 
 
 593 
 
 Meynell v. Garraway 
 
 
 
 419 
 
 v. Elford 
 
 
 
 195 
 
 v. Surtees 
 
 
 
 109 
 
 v. Griffith 
 
 
 
 99 
 
 Michael v. Fripp . . 
 
 
 
 119 
 
 v. Griffiths 
 
 
 
 82 
 
 Michellmore v. Mudge 
 
 
 
 58 
 
 v. Gronow 
 
 
 255, 
 
 259 
 
 Michell's trusts 
 
 
 , t 
 
 275 
 
 v. Holford 
 
 . , 
 
 
 181 
 
 Middlemore v. Goodale 
 
 
 22, 
 
 157 
 
 v. Knight 
 
 
 Ad 
 
 70 
 
 Middleton v. Clarence 
 
 
 , , 
 
 478 
 
 v. Malleson 
 
 
 
 124 
 
 v. Greenwood 
 
 
 
 318 
 
 v. Minett 
 
 
 
 194 
 
 v.Pollock 332, 543 
 
 ,'-V 
 
 7,-52 
 
 ,-90 
 
 v. Simpson 
 
 
 Ad. 
 
 78 
 
 Mildmay's case 221, 
 
 248, 
 
 250, 
 
 327 
 
 v. Swansea 
 
 
 
 53 
 
 Mildred v. Austin 
 
 
 Ad. 
 
 335 
 
 Morley v. Morley 
 
 
 . , 
 
 323 
 
 Miles v. Harford . . 
 
 m # 
 
 254, 
 
 267 
 
 Morrett v. Paske 
 
 390 
 
 395, 
 
 401 
 
 v. Langley . . 
 
 # t 
 
 
 449 
 
 Moms v. Cannan . . 
 
 
 530 
 
 531 
 
 Miller v. Cook 
 
 208, 
 
 209, 
 
 210 
 
 v. Lee 
 
 . t 
 
 
 142 
 
 Milligan v. Cooke 
 
 
 
 321 
 
 v. Livie 
 
 
 
 330 
 
 Mills v. Haywood 30 
 
 ; 3i, 
 
 303, 
 
 314 
 
 Morse v. Faulkner 
 
 Ap. 
 
 xvi, xviii. 
 
 v. Jennings . . 
 
 
 349 
 
 383 
 
 v. Merest . . 
 
 # 
 
 % # 
 
 300 
 
 v. Morris 
 
 
 
 227 
 
 Morsham v. Hunter 
 
 
 . . 
 
 18
 
 LIST OF CASES CITED. 
 
 
 Page. 
 
 
 
 Pane. 
 
 Mortimore v. Mortimore . . 
 
 
 228 
 
 New Brunswick Co. v.Conybeare 285,289 
 
 Mortlock v. Buller 2G9, 
 
 270, 
 
 286 
 
 v. Mu 
 
 jjgeridge 151 
 
 Morton v. Tewart 
 
 
 108 
 
 Newcastle r. 
 
 
 .. 334 
 
 v. Woods 
 
 
 590 
 
 v. Att.-Gen. 
 
 
 .. 246 
 
 Morwan v. Thompson 
 
 
 137 
 
 v. Padwick 
 
 
 Ad. 335 
 
 Moscley v. Moseley 
 
 
 360 
 
 Newill v. Newill . . 
 
 
 . 33 
 
 Mosley's trusts 
 
 253, 
 
 257 
 
 Newington L B. v. Eldridge 
 
 .. 336 
 
 Moss r. 
 
 
 336 
 
 Newitt v. Garrud . . 
 
 
 513, 524 
 
 v. Cooper 
 
 Ad. 
 
 189 
 
 Newland v. Paynter 
 
 
 .. 399 
 
 Mostyn v. West Mostyn, &c.C 
 
 o. . . 
 
 77 
 
 Newman v. Newman 
 
 
 .. 199 
 
 Moulton v. Camroux 
 
 113, 
 
 116 
 
 Newmarch r. 
 
 
 .. 42 
 
 v. Edwards 
 
 
 301 
 
 v. Storr . . 
 
 
 .. 42 
 
 Mount v. Mount 
 
 
 139 
 
 Newport's case 
 
 
 .. 545 
 
 Mowbray, ex. 
 
 
 531 
 
 Newport v. Hollins 
 
 
 .. 528 
 
 Moxon v. Payne 
 
 113, 
 
 133 
 
 Newsham v. Wood. . 
 
 
 .. 512 
 
 Moyce v. Newington 388, 
 
 389, 
 
 395 
 
 New Sombrero Co. v. Erlangei 
 
 192, 194 
 
 Moynan v. Moynan 
 
 
 367 
 
 Newstead v. Searles 
 
 164, 
 
 545, 546 
 
 Muggleton v. Barnett 
 
 , . 
 
 45 
 
 Newton 
 
 . , 
 
 .. 523 
 
 Muir v. Jolly 
 
 
 328 
 
 r. Bunyard 
 
 . . 
 
 Ad. 389 
 
 Mullet v. Green 
 
 
 527 
 
 v. Allen 
 
 , . 
 
 .. 297 
 
 Mulliner v. Midland R. Co. 
 
 366 
 
 370 
 
 v. Chorlton 
 
 
 .. 391 
 
 Mullins v. Guilfoyle 
 
 545 
 
 546 
 
 v. Marsden 
 
 , . 
 
 .. 201 
 
 v. Howell 
 
 Ad. 
 
 281 
 
 v. Rouse . . 
 
 
 App. xiv. 
 
 Mumford v. Stohwasser 394,401,402, 
 
 v. Sherry . . 
 
 
 37, 38 
 
 Mundy v. Joliffe 
 
 
 185 
 
 New Zealand R. Co. v. Watson Ad. 331 
 
 Muiiess v. Franklin 
 
 
 326 
 
 Nicholles v. Nicholles 
 
 
 App. ix. 
 
 Murphy r. . . 
 
 587 
 
 588 
 
 Nicholl v. Jones 
 
 
 .. 123 
 
 Murragh v. Tisdall. . 
 
 
 410 
 
 Nicholson v. Anderson 
 
 499 
 
 512, 514 
 
 Murray v, Pinkett . .331, 332, 
 
 395, 
 
 432 
 
 v. Drury 
 
 
 .. 58 
 
 Murthwaite v. Jenkinson . . 
 
 234 
 
 235 
 
 v. Tutin 
 
 # . 
 
 .. 100 
 
 Muskett v. Eaton .. 
 
 
 227 
 
 Nicoll v. Chambers 
 
 
 .. 303 
 
 Musket v. Hill 
 
 
 8n. 
 
 Nightingale v. Ferrers 
 
 , % 
 
 .. 323 
 
 Myeock v. Beatson.. 323, 330 
 
 , Ad. 
 
 330 
 
 Nives v. Nives 
 
 
 Ad. 328 
 
 Nail v. Punter . . . . 
 
 
 381 
 
 Nixon v. Darley 
 
 
 .. 406 
 
 Nairn v. Prowse 
 
 
 558 
 
 v. Jenkins . . 
 
 
 .. 594 
 
 Nant-y-glo, &c. Co. v. Tamplin . . 
 
 348 
 
 Noble v. Brett 37, 3 S 
 
 , 347 
 
 346, 455 
 
 Nash v. Allen 
 
 
 438 
 
 v. Edwards . . 
 
 
 .. 382 
 
 v. Derby 
 
 
 312 
 
 v. Ward 
 
 
 .. 179 
 
 v. Smith 
 
 
 325 
 
 Noel v. Bewley 
 
 
 77, 80 
 
 Natal Investment Co. 348 
 
 , Ad. 
 
 156 
 
 v. Henley 
 
 
 .. 350 
 
 Nathan v. Giles 
 
 427 
 
 428 
 
 v. Robinson . . 
 
 
 .. 37 
 
 National Ass. Co. r. Francis, 
 
 514, 
 
 
 Nokes v. Kilmorley 
 
 
 .. 302 
 
 518,-30,-32 
 
 , Ad. 
 
 511 
 
 Norfolk's case 
 
 
 215, 216 
 
 National Bk., ex 
 
 
 338 
 
 Norfolk v. Browne. . 
 
 
 .. 322 
 
 National, &c. Bk. v. Haynes 
 
 Ad. 
 
 141 
 
 v. Sanders . . 
 
 
 .. 43 
 
 v. Hampson 
 
 449, 
 
 520 
 
 Norrish v. Marshall 
 
 
 .. 497 
 
 National Provincial Bk.v. Har 
 
 eAd 
 
 427 
 
 Norris v. Jackson . . 
 
 
 Ad. 104 
 
 Native Iron Ore Co. r . 
 
 App. i. 
 
 v. Frazer 
 
 
 165, 188 
 
 Naylor v. Winch 
 
 
 282 
 
 v. Le Neve . . 
 
 
 .. 458 
 
 Nelthorpe v. Holgate 318, 
 
 319 
 
 323 
 
 v. Stuart 
 
 
 .. 342 
 
 Nene Valley v. Dunckley . . 
 
 
 181 
 
 Nortcliffe v. Warburton 
 
 
 .. 342 
 
 Neo v. Neo 
 
 
 275 
 
 Northam v. Hurley 
 
 
 .. 265 
 
 Ness v. Armstrong 
 
 
 168 
 
 Northcote v. Duke. . 
 
 
 .. 311 
 
 Neve v. Flood 
 
 
 408 
 
 North Eastern R. Co. v. 
 
 Spar 
 
 £ .. 512 
 
 v. Pennell 349, 405, 406, 
 
 409, 
 
 413 
 
 Northern R. Co. 
 
 
 .. 348 
 
 Nevill v. Snelling Ad. 
 
 208, 
 
 209 
 
 North v. Butts 
 
 
 .. 439 
 
 v. Wilkinson 
 
 
 285 
 
 V. Martin 
 
 
 .. 238
 
 LIST OF CASES CITED. 
 
 lxxv. 
 
 
 
 
 
 Page. 
 
 
 
 
 "Page. 
 
 North Western Co. r. Slee 
 
 , . 
 
 517 
 
 Page v. Way 
 
 
 
 589 
 
 National Mercantile Bk. v. Hampsoi 
 
 520 
 
 Pain's case 
 
 
 
 44 
 
 Norton v. Golden 
 
 
 . . 
 
 594 
 
 Painter v. Newby 
 
 
 
 318 
 
 v. London & N. 
 
 W." E 
 
 . Co. 
 
 366 
 
 Pain v. Coombs 
 
 
 
 185 
 
 v. Wood. 
 
 
 
 96 
 
 Palmer's case 
 
 
 
 8n. 
 
 Nottidge v. Prince 
 
 
 , , 
 
 132 
 
 Palmer v. Edwards 
 
 
 
 158 
 
 Nott v. Riccard 
 
 
 
 301 
 
 v. Locke . . 
 
 
 
 447 
 
 Nunes v. Carter 
 
 
 565, 
 
 590 
 
 v. Wheeler 
 
 
 
 447' 
 
 Nnnn v. Fabian 
 
 
 185, 
 
 189 
 
 Papillon v. Voice . . 
 
 
 
 240 
 
 v. Wilsmore 
 
 553 
 
 548, 
 
 555 
 
 Pares 
 
 
 
 372 
 
 Oakden v. Pike 
 
 
 . . 
 
 299 
 
 Parfitt v. Chambre ; e. D' A 
 
 Iteyrac 
 
 313 
 
 Oakes v. Turquand 
 
 113, 
 
 115, 
 
 291 
 
 v. Hember . . 
 
 
 241, 
 
 243 
 
 O'Brien v. Brodie 
 
 % m 
 
 
 573 
 
 v. Lawless . . 
 
 
 132, 
 
 133 
 
 v. O'Brien 
 
 
 . . 
 
 331 
 
 Parken v. Whitby 
 
 
 
 145 
 
 O'Callaghan v. Cooper 
 
 
 
 315 
 
 Parker r 519, j 
 
 Ld. 
 
 225, 
 
 229 
 
 Occleston v. Fullalove 
 
 
 200 
 
 -203 
 
 v. Carter . . 
 
 
 
 602 
 
 Oceanic S. N. Co. v. Sutherbei 
 
 ry Ad. 38 
 
 v. Lechmere 
 
 
 Ad E 
 
 Ockenden v. Henly 
 
 
 
 312 
 
 v. Serjeant 
 
 
 
 554 
 
 O'Connor v. Bernard 
 
 
 
 606 
 
 v. Taswell . 
 
 
 
 77 
 
 v. Stephens 
 
 . , 
 
 406, 
 
 413 
 
 v. White . . A 
 
 50, 
 
 451, 
 
 5.57 
 
 Oddie v. Brown 
 
 
 
 256 
 
 Parkes 
 
 
 
 329 
 
 Odell r. Walden . . 
 
 
 512 
 
 513 
 
 Parkinson v. Hanbury 
 
 
 
 93 
 
 O'Donnell 
 
 
 
 442 
 
 Parkin v. Thorokl 
 
 
 
 302 
 
 v. Ryan 
 
 
 # # 
 
 476 
 
 Parnall v. Parnall 
 
 
 
 98 
 
 O'Donovan v. Rodgers 
 
 
 
 606 
 
 Parnham's trusts . . 
 
 
 
 249 
 
 Ogden v. Fossick . . 
 
 
 
 298 
 
 Parr v. Applebee . . 
 
 
 
 474 
 
 Ogg v. Shuter 
 
 
 149, 
 
 377 
 
 Parry v. Great S. Co. Ld. 
 
 
 
 568 
 
 Ogilvie v. Foljambe 
 
 
 308, 
 
 381 
 
 v. Wright 
 
 
 35*4-3* 
 
 v. Jeaifreson 
 
 
 391, 
 
 395 
 
 Partington's case . . 
 
 
 
 221 
 
 0' Gorman v. Corny n 
 
 
 
 558 
 
 Pasley v. Freeman 
 
 79, 
 
 285, 
 
 287 
 
 Okill v. Whittaker 
 
 
 
 
 284 
 
 Patch v. Ward 
 
 
 
 316 
 
 Oldham v. Oldham 
 
 
 
 
 246 
 
 Patent File Co., r. .. 
 
 
 578 
 
 594 
 
 Olivant v. Wright 
 
 
 
 , 
 
 229 
 
 Paterson v. Long . . 
 
 
 444 
 
 456 
 
 Oliver v. Oliver 
 
 
 
 
 61 
 
 Patman v. Harland 
 
 U. 
 
 450 
 
 455 
 
 Olliver v. King 
 
 
 
 
 548 
 
 Paton v. Brebner . . 
 
 
 
 321 
 
 O'Mahoney v. Burdett 
 
 
 
 
 229 
 
 v. Rogers 
 
 
 
 301 
 
 O'Reilly v. Thompson 
 
 
 
 
 188 
 
 Patrick v. Milner . . 
 
 
 
 302 
 
 Orlabar v. Harwarr 
 
 
 
 
 542 
 
 Patterson r. Murphy 
 
 
 
 124 
 
 Orme v. Broughton 
 
 
 
 
 152 
 
 Paul see " St. Paul" 
 
 
 
 
 Ormond v. Anderson 
 
 
 
 
 300 
 
 Panli v. Trye 
 
 
 528 
 
 529 
 
 O'Rorke v. Bolingbroke, 
 
 128, 
 
 130, 
 
 
 Paul v. Compton . . 
 
 
 
 97 
 
 
 131, 
 
 208, 
 
 210 
 
 v. Paul 
 
 
 541 
 
 560 
 
 On - v. Dickenson . . 
 
 
 
 473 
 
 Pauncefoot v. Blunt 
 
 
 
 539 
 
 Ortigosa v. Brown 42-5 
 
 , 431, 
 
 506, 
 
 507 
 
 Pawson v. Brown . . 
 
 
 Ad. 
 
 199 
 
 Osborne 
 
 
 
 442 
 
 Payne r. Cross 341, 514, 5 
 
 16, 
 
 574, 
 
 
 Osgood v. Strode 
 
 163, 
 
 557*, 
 
 558 
 
 578, 585, 590, 
 
 591 
 
 Ad. 
 
 571 
 
 Otter v. Ld. Vaux 
 
 , . 
 
 354, 
 
 355 
 
 v. Compton 
 
 
 Ad. 
 
 381 
 
 Outram v. Maude . . 
 
 
 Ad. 
 
 31 
 
 v. Fern 
 
 
 
 520 
 
 Overend r. Swan . 
 
 
 
 349 
 
 v. Mortimer 
 
 
 
 545 
 
 Overton v. Bannister 
 
 
 
 144 
 
 Pay's case 
 
 
 
 212 
 
 Owen v. Body 
 
 . . 
 
 
 547 
 
 Peachy v. Somerset 
 
 
 
 312 
 
 Owen v. De Beau voir 
 
 , # 
 
 , . 
 
 7 
 
 Peacock's trusts 
 
 
 
 59 
 
 
 
 
 589 
 
 Peacock v. Burt 
 
 
 
 390 
 
 Oxford (Earldom of) 
 
 
 437, 
 
 440 
 
 v. Eastland 
 
 
 108 
 
 109 
 
 Oxwick v. Plumer 
 
 , # 
 
 m u 
 
 394 
 
 v. Pentland 
 
 
 
 318 
 
 Paget' s case 
 
 
 
 213 
 
 Pearce v. Brooks . . 
 
 
 
 199 
 
 Page v. Hayward . . 
 
 
 2C 
 
 
 
 201 
 
 v. Morris . . 
 
 
 
 155
 
 lxxvi. 
 
 LIST OF CASES CITED. 
 
 Pearce v. Newlyn . 
 v. Watts . 
 Pearks v. Moseley . 
 Pearl v. Deacon 
 Pearson, e. 
 
 Page. 
 .. 453 
 ..100 
 Ad. 257, 268 
 ..391 
 ..549 
 r. Mortimer 569, 573, 582, 
 
 584, 585, 590, 591 
 r. Stephens . . . . 60 1 
 
 v. Moon 578 
 
 v. Spencer . . . . 16 
 
 Pease, e 535, 536 
 
 v.Jackson .. .. .. 357 
 
 Peat's trusts 397 
 
 Peek v. Gurney . . 107, Ad. 292 
 
 Peggv. Wisden .. .. 301,303 
 
 Pemberton, e. . . . . . . 336 
 
 Pembroke v. Thorpe .. ..189 
 
 Penhall v. Edwin 555 
 
 Pennant's case . . . . . . 215 
 
 Pennell v. Deffell 331, 332, 576,Ad. 332 
 
 v. Fox 534 
 
 v. Reynolds 568, 573, 577 
 
 579, 582, 583 
 v. Stephens 
 Penner v. Jemmet 
 
 Penny v. Watts 
 
 Pentelow's case 
 
 Pepperell 
 
 Perkins v. Bradley 
 v. Ede 
 Fladgate , 
 
 Penin v. Blake 
 
 575 
 
 500, 501 
 
 448, 452, 453 
 
 .. 110 
 
 Ad. 191 
 
 446, 546, 547 
 
 ..298 
 
 ..103 
 
 ..231 
 
 Perry-Hen ick v. Attwood 502, 508, 606 
 Perrv v. Holl . . . . 451, 462 
 
 " v. Phillips 331 
 
 Peter v.Lewes .. Ad. 259, 271 
 
 v. Nieholls . . . . . . 601 
 
 v. Russell . . . . 502, 503 
 
 Petitt's estate .. .. .. 73 
 
 Petitt v. Houghton . . . . 397 
 
 Peto v. Hammond 449, 450, 455 
 
 Pewterer's Co. v. Christ's Hospital 250 
 
 Peytoe's case 
 Phayre v. Peree 
 Phene v. Popplewell 
 Phillips v. Alderton 
 v. Gutteridge 
 v. Homfray 
 v. Jones 
 Phillips v. Miller . . 
 v. Mullings 
 v. Phillips 
 
 310 
 
 . . 331,332 
 ..180 
 .. 186 
 ..356 
 ..292 
 .. 381 
 . . 320, 448 
 ..128 
 143, 380, 381 
 
 v. Silvester 76, 85, 86, 91,93, 328 
 
 Phillpott's v. St. George's Hospital 136 
 
 Philps v. Homstedt377, 576-8, 585, 586 
 
 v. Moore . . . . Ad. 70 
 
 Phipps v. Ennismore . . 650, 607 
 
 Page. 
 
 v. Lovegrove . . . . 436 
 
 Picard v. Hine .. .. .. 137 
 
 v.- Sears 285 
 
 Pickard v. Marriage 514, 518, 519 
 
 Picken v. Matthews . . . . 226 
 
 Pickergill v. Rodger . . ..Ill 
 
 Pickering v. Buck . . . . . . 496 
 
 v. Ilfracombe R. Co. . . 400 
 Pickersgill v. Grey . . 263 
 
 Pickett v. Packham . . . . 397 
 
 Piers' estate . . . . . . 466 
 
 Pierson v. Vickers . . . . 238 
 
 Pigott, ex ..434 
 
 v. Great Western R. Co. Ad. 109 
 
 Pike v. Fitzgibbon Ad. 137, 138 
 
 v. Stephens . . . . . . 575 
 
 v. White 212 
 
 Pilcher v. Arden, r. Brook . . 336 
 
 v. Rawlins 169, 341, 376, 
 
 388, 389, 402, 451 
 Fillers r. Curtoys.. .. 572,573 
 
 Pimb's case . . . . . . 440 
 
 Pimm v. Insall .. .. 168, 169 
 
 Pine (gds. ot) . . . . 36 
 
 Pitcher v. Tovey 170 
 
 Pitt v. Jackson . . 241, 242, 244 
 
 Plant v. Pearman . . . . . . 342 
 
 Piatt v. Powles . . . . 233, 236 
 
 Plessington's case .. .. .. 218 
 
 Plumb v. Fluitt . . . . 389, 454 
 
 Pocock v. Att. Gen. . . . . 102 
 
 v. Reddington .. 331, 332 
 
 Polhill v. Walter 287 
 
 Pollard v. ClaUon . 31 '3 
 
 Pomfret v. Windsor 392, 402, 430 
 
 Ponsford v. Walton . . .581 
 
 Poole Jackson & White's case . . 596 
 
 Poole v. Adams 328 
 
 v. Hill . . . . 86, 296 
 v. Shergold 84, 304, 305 
 
 Pooley r, Atkinson . . 532, 533 
 
 v. Bosanquet . . . . 343 
 
 v. Quilter . . . . 193, 194 
 
 Pope v. Garland 305 
 
 Popham v. Baldwin . . 407, 449 
 
 v. Bampfield .. 311,313 
 
 v. Eyre 189 
 
 Pordage v. Coles . . . . 296, 297 
 
 Port Canning L. Co. v. Smith . . 110 
 Porter's trusts . . . . . . 221 
 
 Porter v. Porter 33 
 
 Portington's case 245, 247, 250 
 
 Portman v. Mill . . . 303, 305 
 
 Port m ore v. Bunn .. .. 170 
 
 Portsmouth v. Effingham 396, 397, 454 
 Postlethwaite v. Lewthwaite . . 197 
 Postmaster-gen. r. Bonham 566, 571
 
 LIST OF CASES CITED. 
 
 lxxvii. 
 
 Potter v. Dufficld . 
 v. Sanders . 
 Pott v. Todhunter 
 Powell's trusts 
 Powell v. Boggis . 
 
 v. Dillon 
 
 v. Elliott . . 
 
 v. Graham 
 
 v. Kelly . . 
 
 v. Matthews 
 
 v. Mouchett 
 
 v. Pleydell 
 
 v. Riley 
 
 v. Smith 
 
 v. Thomas 
 Powers v. Fowler 
 Power ^. Keeves Ap. 
 Powis v. Dynevor 
 Powles v. Hargreaves 
 Pradel see " de Pradel " 
 Prankerd v. Prankerd 
 Pratt v. Harvey . . 
 v. Matthew . . 
 Prees v. Cook 
 Prendergast v. Eyre 
 Preston v. Neale 
 Price 
 
 v. Berrington 
 v. Easton 
 
 Page. 
 ..182 
 .. 147 
 ..543 
 .. 259 
 247, 248, 250 
 .. 448,449 
 . . 308, 309 
 ..37 
 .412 
 ..527 
 ..281 
 ..448 
 40, 42 
 ..282 
 ..104 
 . . 182 
 384, 476 
 Ad. 303 
 165, 176 
 
 .. 326 
 
 .. 136 
 
 .. 203 
 
 .. 132 
 
 393, 
 
 Gibbs 
 Green 
 Griffith 
 Jenkins 
 
 v. Macaul ay . 
 Pride v. Bubb 
 Priestly v. Pratt 
 Pritchard v. Roberts 
 Priddy v. Rose 
 Printing &c. Co. 
 Prismall v. Lovegrove 
 Proctor v. Cooper . . 
 Prodgers v. Langham 
 Prole v. Soady 
 
 Ad. 89 
 315, 316 
 526, 531 
 380 
 166 
 523 
 313 
 319 
 
 545, 546, 553, 556, 
 560, 601 
 
 304, 305 
 .. 137 
 
 444, 
 
 Prosser v. Phipps 
 
 v. Rice 
 Protector &c. Co. 
 
 Proudley v. Fielder 
 Pulvertoft v. Pulvertoft 
 601 
 Punchard's gds. 
 Punnett r. Kitchin 
 Purdew v. Jackson 
 Pusey v. Desbouvrie 
 v. Pusey 
 
 527 
 
 336 
 
 330 
 
 569 
 
 528 
 
 453 
 
 545 
 
 . 58, 69, 99, 108, 
 
 187, Ad. 99 
 
 . . 436, 454 
 
 ..401 
 
 Grice 311, 312, 
 
 Ad. 311, 312, 314 
 
 .59 
 
 548, 555, 
 
 602, 604, 607 
 
 ..34 
 
 525, 580, 590 
 
 ..225 
 
 ..282 
 
 .. 151 
 
 Pye, e. 
 
 Pyer v. Carter 
 Queen v. Ellis 
 v. Lord 
 v. Shaw 
 v. Vaughan 
 Quested v. Michell 
 Rabbidge v. Pooley 
 Rackham v. Siddall 
 Radnor v. Vandebendy 
 Raggett's v. "Williams 
 
 Page. 
 
 124, 326 
 .. 18 
 .. 350 
 .. 117 
 .. 116 
 .. 92 
 .. 225 
 
 404, 572 
 .. 331 
 
 389, 421 
 Ad. 33S, 339 
 
 Railway Steel Co. r. Taylor 567, 569 
 Rains v. Buxton . . . . Ad. 27 
 
 Raleigh's case . . . .539 
 
 Ram Coomar &c. v. Chundee Canto 206 
 
 Ramsden v. Dyson 79, 82, 96, 99 
 
 v. Hurst .. ..318 
 
 v. Lupton . . . . 515 
 
 Ramsgate &c. Co v. Montifiore . . 109 
 Ram>ay v. Eaton . . . . . . 575 
 
 Raneliffe v. Parkyns . . . . 395 
 
 Randall v. Russell . . . . 197 
 
 Randoll v. Roe 227 
 
 Rand v. Cartwright . . . . 606 
 
 Ranelagh v. Melton . . 314 
 
 Rankin v. "Weguelin . . . . 126 
 
 Rann v. Hughes . . . . 37 
 
 Ratcliffe v. Barnard . . 451, 454 
 
 Ravell v. Blake 570 
 
 Rawbone's trust . . . . 524, 525 
 
 Rawley v. Holland . . . . 324 
 
 Rawling v. Coal Commrs. Ass. . . 199 
 Rawlins v. Birkett . . . . 58 
 
 v. Wickham . . 289, 290 
 Rayner v. Preston Ad. 84, 196 
 
 Rayv. Pung .. 57,353,361 
 
 v. Ray 530 
 
 Reader r. Wrigley . 596 
 
 Read v. Ward 448 
 
 Redding v. Wilkes .. ..189 
 
 Rede v. Farr 215 
 
 Redfern v. Ball .. .. 517,518 
 
 Redington v. Redington 167, 323, 326 
 Reed & Steele v. Tweddetl 576, 578, 579 
 Reed v. Harvey . . . . Ad. 72 
 
 Reese River M. Co. v. Atwell . . 539 
 
 Reese River M. Co. v. Smith . . 114, 
 
 286, 289, 291 
 
 Reeves v. Capper . . . . . . 429 
 
 . Regents Canal &c. Co. v. Grissell 346 
 
 Regent's U.S.S 567 
 
 Regina v. Crease .. .. .. 520 
 
 v. Gen. Cemetery Co. . . 468 
 
 v. Lord 117 
 
 v. Mann . . .. . . 571 
 
 v. Shaw . . . . . . 116 
 
 v. Thomas . . . . . . 517
 
 lxxviii. 
 
 LIST OF CASES CITED. 
 
 Page. 
 Regina v. Vaughan . . 92 
 
 Reid v. Keid 268 
 
 Reilly V. Garnet . . 406, 409, 412 
 
 Renals v. Cowlishaw .. 160, 161 
 Rennick v. Armstrong .. ..410 
 
 Ren v. Bulkeley . . . . . . 353 
 
 Reuss v. Picksley . . 149, 183 
 
 Rex, see King 
 
 Reya r. Salinger . . . . . . 570 
 
 Reynard v. Arnold .. . 102 
 
 Reynolds v. Bowley 33, 525, 527-9 
 
 v. Hall 526 
 
 v. Meyrick , . .300 
 
 Rhys v. Dare Valley R. Co. . . 92 
 
 Rice v. Gordon . . . 38 
 
 v. Rice . . 455, 500, 505 
 
 Richards, r. . . . . . . 520 
 
 Richardson, ex. . . 532, 533 
 
 Richardson v. Du Bois . . . . 116 
 
 v.Richardson .. 124 
 
 v. Silvester . . . . 82 
 
 v. Smallwood . . 548 
 
 Richards v. Delbridge .. .. 124 
 
 v. Gledstanes . . . . 535 
 
 v. James 516, Ad. 341 
 
 v. Revitt . . 174, 206 
 
 Richard v. North Ln. R. Co. . . 109 
 
 Rickard v. Robson . . . . 275 
 
 Riddel v. Riddel . . . . 158 
 
 Rider v. Kidder . . . . 322, 542 
 
 Ridgway v. Gray . . . . . . 320 
 
 v. Wharton . . 181, 190 
 Ridley, re . . . . 246, 258, Ad. 258 
 
 Ridout v. Lloyd . . . . 530, 531 
 
 Righton v. Righton .. .101 
 
 Right i . Bucknell . . . . 78 
 
 Rlmington v. Canon . . . . 27 
 
 Rimini v. Van Pragh . . 142, 143 
 Riordan v. Banon .. Ad. 189 
 
 Rishton v. Whatmore . . . . 84 
 
 Rivers, Ld., v. Adams . . . . 29 
 
 Rivett's case . . . . 44 
 
 Roach v. Wadham . . 172, 173 
 
 Robbin 476 
 
 Robertson v. Skelton 84, 89, Ad. 84 
 
 v. Wait .. ..162 
 
 Roberts, r. . . . . . . . . 6 
 
 v. Berry 302 
 
 v. Brett 295 
 
 v. Croft . . . . 500, 501 
 
 v. Gordon . . . . 430 
 
 v. Roberts . . . . 124 
 
 v. Williams . . . . 604 
 
 Robinson v. Collingwood . . 519 
 
 v. Briggs .. 446, 518 
 
 v. Dickenson 280, 281, 283 
 
 v. Grey . 438, 439 
 
 
 Page. 
 
 Robinson v. Hardcastle 
 
 .. 242 
 
 v. McDonell 
 
 ...551 
 
 v. Nesbitt 
 
 .. 400 
 
 v. Norris 
 
 .. 54 
 
 v. Pickering 
 
 Ad. 137 
 
 v. Robinson 
 
 .. 234 
 
 v. Wheelright . . 
 
 .. 138 
 
 Robins v. Evans 
 
 .. 304 
 
 Roche v. Morgell . . 
 
 .. 143 
 
 Rochford v. Hackman 226, 245, 249 
 Rockwood's case . . . . . . 165 
 
 Roddy v. Fitzgerald . . 107, 244 
 
 Rodger v. C. d'E. d. Paris 389, 391, 428 
 Rodger v. Tuthill . . . . 405 
 
 Roe v. Bedford 233 
 
 v. Galliers . . . . 521 
 
 v. Jeffery 266 
 
 v. Loveless . . . . . . 424 
 
 v. Mitton . . 556, 557 
 
 v. Newman . . . . . . 424 
 
 v. Tranmarr . . . . 212, 327 
 
 Rogers, e. . . . . . . 434 
 
 r. Selley . . . . 532, 533 
 
 v. Bowles . . . . . . 342 
 
 v. Humphreys . . 359, 361 
 v. Ingham . . . . ,. 282 
 
 v. Jones . . .. . . Ill 
 
 v. Mutch 227 
 
 v. Seale 380 
 
 Rolfe v. Chester 339 
 
 Rolland v. Harte 413, 458, 459, 460 
 Rollason v. Leon . . . . 77 
 
 Rolle v. Osborne . . . . . . 441 
 
 Rooper v. Harrison 397, 398, 430 
 
 Roper v. Halifax 260 
 
 v. Roper 340 
 
 Rorke 462 
 
 v. Errington 384, 476, Ap. xxiii. 
 Roscarla v. Thomas . . . . 143 
 
 Rose, the . . . . .. . . 474 
 
 v. Haycock . . . . . . 576 
 
 v. Poulton 297 
 
 v. Rose 299 
 
 v. Watson . . . . 93, 330 
 
 Rosher v. Williams . . 552, 555 
 
 Rossiter v. Miller . . 96, 101, 182 
 
 Ross's trusts . . . . 34 
 
 Rolheram v. Green . . 17, 20 
 
 Rothwell v. Timbrell . . . . 575 
 
 Rouch v. Great Western R. Co. . . 566 
 
 Roussillon v. Roussillon . . Ad. 206 
 
 Routledge v. Donil 242, 255, 267 
 
 v. Grant . . . . 109 
 
 Row v. Row . . . . . . 41 
 
 Roxburgbe v. Cox . . Ad. 398 
 
 Roy v. Sillence .. .. .. 523 
 
 Rudkin v. Dolman . . 94
 
 
 LIST OS CASKS CITED. 
 
 
 lxxix. 
 
 
 
 Ptu/e. 
 
 
 
 Page. 
 
 Rufford v. Bishop 
 
 
 .. 527 
 
 Seaman v. Warman 
 
 1 9 
 
 .. 322 
 
 Rumball v. Metropolitan Bk. 
 
 426, 507 
 
 v. Willock 
 
 
 .. 242 
 
 v. Wright 
 
 
 .. 186 
 
 Searlo v. Law 
 
 
 .. 426 
 
 Rummens v. Hare 
 
 
 .. 429 
 
 Seear v. Lawson . . 
 
 
 Ad. 207 
 
 Rush 
 
 334 
 
 , Ad. 335 
 
 See, gds. of 
 
 
 Ad. 36 
 
 Russell, r. 
 
 
 .. 436 
 
 Selby v. Nettlefold 
 
 , , 
 
 .. 442 
 
 r. Winn . . 
 
 
 .. 449 
 
 v. Pomfret 337, 
 
 339, 
 
 349, 392 
 
 Russell Road &c. trustees 
 
 
 .. 386 
 
 v. Whittaker 
 
 
 224, 229 
 
 Russell's trusts 
 
 
 392, 572 
 
 Selsey v. Rhoades 
 
 
 .. 291 
 
 Russell v. Russell . . 
 
 
 .. 190 
 
 Senhouse v. Earle 420, 
 
 421, 
 
 544, 555 
 
 Rutledge v. Hood . 
 
 
 .. 476 
 
 Seton v. Seton 
 
 
 .. 142 
 
 Ryall v. Rowles 
 
 322, 
 
 523, 526 
 
 v. Slade 
 
 
 149, 155 
 
 Ryde v. Wombwell 
 
 , , 
 
 .. 117 
 
 Sevier v. Greenway 
 
 
 .. 316 
 
 Saffrey v. Brenner 
 
 
 .. 510 
 
 Sexton v. McGrath 
 
 
 .. 477 
 
 Saffron-Walden B.S. v. Ravner 433, 
 
 Seymour's case 
 
 220, 
 
 437, 438 
 
 444, 458, 
 
 462 
 
 , Ad. 255 
 
 Shadwell v. Shadwell 
 
 
 .. 142 
 
 Saint. For names so begi 
 
 nnir 
 
 g see St. 
 
 Sharington v. Strotton 
 
 
 .. 143 
 
 Saltash v. Goodman 
 
 Ad. 1! 
 
 Shardlow v. Cottercll 
 
 
 Ad. 182 
 
 Salt v. Cooper 
 
 
 .. 574 
 
 Sharman v. Brandt 
 
 
 .. 183 
 
 Samme's case 
 
 
 438, 439 
 
 Sharpe v. Foy 
 
 
 418, 461 
 
 Samner v. Force 
 
 
 .. 390 
 
 Sharpies v. Adams 
 
 
 394, 401 
 
 Samuel v. Samuel . . 
 
 Ad 
 
 250, 251 
 
 Sharp v. Foy 285 
 
 401 
 
 , Ad. 141 
 
 Sanders v. Dehew . . 
 
 
 401, 601 
 
 v. Lush 
 
 
 .. 37 
 
 v. Deligne 
 
 
 391, 394 
 
 v. Milligan . . 
 
 
 .. 303 
 
 v. Pope 
 
 
 20, 311 
 
 Sharshaw v. Gibbs 
 
 
 500, 502 
 
 Sandford v. Keech 
 
 
 .. 195 
 
 Shar v. Pilch (or Pilck) 
 
 
 .. 429 
 
 Sand v. Hempston 
 
 
 .. 390 
 
 Shattock v. Shattock 
 
 
 .. 148 
 
 Sandys v. Sandys . . 
 
 
 .. 360 
 
 Shaw 
 
 
 .. 515 
 
 Sanger v. Sanger . . 
 
 
 .. 189 
 
 Shaw's case 
 
 
 .. 43 
 
 Sansom v. Rhodes 
 
 
 .. 83 
 
 Shaw v. Fisher 
 
 
 .. 151 
 
 Sargeant r. Burroughs 
 
 
 535, 536 
 
 v. Ford 
 
 
 220, 222 
 
 Sargent, e. . . 
 
 
 .. 426 
 
 v. Foster 
 
 
 154, 155 
 
 Saunders's estate . . 
 
 
 .. 539 
 
 v. Jones- Ford 
 
 222, 
 
 223, 431 
 
 Saunders v. Dehew 
 
 
 401, 601 
 
 v. Neale 
 
 
 418, 463 
 
 Savage v. Humble 
 
 
 .. 42 
 
 v. Standish 
 
 
 .. 554 
 
 Savery v. King 
 
 
 .. 113 
 
 v. Thackrey 
 
 
 .. 120 
 
 Savile v. Blacket . . 
 
 
 350, 352 
 
 v. Thomson . . 
 
 
 .. 275 
 
 Sayre v. Hughes . . 
 
 
 .. 325 
 
 Shearman v. British Empi 
 
 re Co 
 
 . 333, 334 
 
 Scholefield v. Templar 
 
 
 289, 291 
 
 Sheen r. Winstanley 
 
 
 576, 578 
 
 Schroeder v. Mendl 
 
 
 286, 287 
 
 Sheffield r. Austin 
 
 
 .. 73 
 
 Schulte r. Mantanle < 
 
 )73, 
 
 574, 575 
 
 v. Eden . . 
 
 
 .. 336 
 
 Schwertzfeger, gds. of 
 
 
 .. 376 
 
 Sheffield Nickel Co. v Unwin 
 
 .. 291 
 
 Scotson v. Pegg 
 
 
 .. 144 
 
 Shekleton v. Sutcliffe 
 
 
 .. 297 
 
 Scott r. 
 
 
 .. 410 
 
 Sheldon v. Handbury 
 
 
 .. 609 
 
 v. Bell 
 
 
 .. 554 
 
 v. Barnes 
 
 
 .. 324 
 
 v. Cumberland 
 
 
 41, 42 
 
 v. Cox 413, 458 
 
 459, 
 
 460, 461 
 
 v. Hanson 
 
 
 .. 304 
 
 Shelley's case 
 
 211, 
 
 231, 232 
 
 v. Heisch 
 
 
 .. 442 
 
 Shelley v. Shelley . . 
 
 
 6 
 
 v. Surnam 
 
 
 528, 529 
 
 Shepheard's estate 
 
 
 .. 371 
 
 v. Tyler 
 
 
 38, 201 
 
 Shepheards v. Beltham 
 
 
 Ad. 328 
 
 Scrafton v. Quincey 
 
 
 .. 410 
 
 Shepheard v. Walker 
 
 
 Ad. 303 
 
 Scrope v. Offley 
 
 
 .. 350 
 
 v. Wilson 
 
 81, 
 
 152, 303 
 
 Scudamore v. Crossing 
 
 
 .. 327 
 
 Shepherd v. Clapham 
 
 
 .. 529 
 
 v. Vandenstene 
 
 
 . . 220 
 
 v. Harris 
 
 
 .. 428 
 
 Sculthorpe v. Burgess 
 
 
 322, 325 
 
 v. Harrison 
 
 
 .. 377 
 
 Seagram v. Tuck . . . 
 
 # 
 
 Ad. 28 
 
 v. Titley 390, 
 
 399, 
 
 400, 414 
 
 Seal v. Claridge 
 
 Ad 
 
 514,518 
 
 Sheridan 
 
 
 .. 547
 
 lxxx. 
 
 LIST OF CASES CITED. 
 
 
 
 
 Page. 
 
 
 Sheridan v. McCartney 
 
 
 , , 
 
 517 
 
 Smith v. Cherrill . . 
 
 Sheriff v. Morlock 
 
 , . 
 
 
 314 
 
 v. Currie 
 
 Sherwin v . Shakespear 
 
 
 
 87 
 
 v. Dale 
 
 Sherwood v. Robins 
 
 
 333 
 
 305 
 
 v. Death 
 
 Shipley v. Chappel 
 
 
 
 310 
 
 v. Dix 
 
 Shipway v. Ball 
 
 
 Ad. 
 
 119 
 
 v. Evans 
 
 Shower v. Pilch (or Pilck) 
 
 
 429 
 
 v. Garland . . 
 
 Shropshire &c. Co. v. Queen 
 
 
 418, 
 
 v. Houblon 
 
 469, 505, 507 Ad 
 
 401 
 
 v. Hudson . . 
 
 Shrubsole v. Sussams 
 
 
 528, 
 
 529 
 
 v. Hughes . . 
 
 Shute r. Shute 
 
 
 
 589 
 
 v. Kay 
 
 Shuttleworth, e. 
 
 
 
 532 
 
 v. King 
 
 v. Hernam 
 
 t'.n 
 
 522, 
 
 523 
 
 v. Lloyd 
 
 v. Le Fleming 
 
 
 8n. 
 
 v. Lucas 
 
 Sibbald v. Hill 
 
 
 
 228 
 
 v Matthews 
 
 Sibthorpe v. Brunei 
 
 . m 
 
 296 
 
 2*7 
 
 v. Moon 
 
 Siddon v. Charnells 
 
 
 
 391 
 
 v. Osborn 
 
 Siggers v. Evans 91 
 
 C*99 
 
 108 
 
 543 
 
 v. Osborne . . 
 
 Simmonds v. Great E. R. 
 
 Co. 
 
 t ( 
 
 336 
 
 v. Phillips . . 
 
 Simmons v. Edwards 
 
 
 
 527 
 
 v. Pilgrim . . 
 
 v. Pitt . . 
 
 . , 
 
 
 273 
 
 v. Power 
 
 Simons v. Patchett 
 
 , , 
 
 
 103 
 
 v. Risley 
 
 Simpson r. Hunt . . 
 
 
 m m 
 
 593 
 
 v. Smith 119, 331, 
 
 v. Bathurst 
 
 
 
 353 
 
 
 v. Clayton 
 
 
 
 157 
 
 v. Thackerah 
 
 v. Morley 
 
 
 
 463 
 
 v. Tibbett . . 
 
 v. Sothern 
 
 
 
 212 
 
 v. Timms 
 
 Simson v. Jones 
 
 
 
 119 
 
 v. Tolcher . . 
 
 Sims r. Grubb 
 
 
 9 t 
 
 570 
 
 v. Wall 
 
 Sinclar v. Stevenson 
 
 
 
 528 
 
 v. Watts 
 
 Singer M. Co. v. Clark 
 
 
 
 506 
 
 v. White 
 
 Singer's trusts 
 
 
 u . 
 
 257 
 
 v. Widlake . . 
 
 Singleton v. Gilbert 
 
 t 
 
 
 226 
 
 v. Winter 
 
 Skarf v. Soulby 
 
 
 
 551 
 
 v. Woodhouse 
 
 Skeate v. Beale 
 
 
 
 134 
 
 Sneezum r. . . 
 
 Skeats v. Skeats 
 
 
 
 326 
 
 e. Davis . . 
 
 Skeeles r. Shearley 
 
 # , 
 
 353 
 
 368 
 
 Snigge v. Shirton . . 
 
 Stidmore v. Bradford 
 
 167 
 
 322, 
 
 324 
 
 Snowball r. Douglas 445, 
 
 Shilbeck v. Hilton 
 
 
 
 283 
 
 572, 575, 578, 
 
 Slark v. Dakyns . . 
 
 
 
 259 
 
 Soar v. Foster 
 
 Slater's trusts .. 
 
 129, 
 
 130, 
 
 131 
 
 Sodman v. Warman 
 
 Slater v. Jones 
 
 
 
 144 
 
 Somerset v. Cox 
 
 Slator v. Brady 
 
 
 118 
 
 119 
 
 Sonday's case . . 
 
 Sleap v. Newman 
 
 . , 
 
 .. 
 
 168 
 
 Soprani v. Skurrs . . 
 
 Slee's case 
 
 , , 
 
 
 509 
 
 South 
 
 Sloconibe v. Gubbs 
 
 n B 
 
 
 561 
 
 Southam 
 
 Smallev v. Hardinge 
 
 . , 
 
 Ad. 
 
 73 
 
 Southampton v. Hertford 
 
 Small v. Attwood . . 
 
 
 285, 
 
 286 
 
 Southby v. Stonehouse 
 
 Smee v. Smee .. 
 
 
 Ad. 
 
 117 
 
 Southcombe v. B. Exeter 
 
 Smith 
 
 Add 11 
 
 140 
 
 South Durham I. Co. 
 
 Smithson v. Thompson 
 
 
 , , 
 
 400 
 
 South Essex R. Co. 
 
 Smith's trusts 
 
 
 
 226 
 
 Southey v. Somerville 
 
 Smith's will 
 
 Ad. 
 
 119, 
 
 138 
 
 South v. Iliffe 
 
 Smith v. Allsop 
 
 
 
 282 
 
 Sowerby v. Brooks . . 
 
 v. Bakewell 
 
 
 
 531 
 
 Spackman v. Miller 
 
 v. Cannan 505, 
 
 582, 
 
 584, 
 
 587 
 
 v. Timbrell 38, 
 
 v. Capron . . 
 
 
 Ad. 
 
 103 
 
 Spaight v. Cowne . . 
 
 Page. 
 
 546, 548, 560 
 
 ..569 
 
 Ad. 330, 346 
 
 . . 350, 352 
 
 ..181 
 
 .505 
 
 ..601 
 
 ..350 
 
 . . 525, 528 
 
 .. 281,293 
 
 . . 288, 289 
 
 26, 324 
 
 ..27 
 
 Ad. 119, 137 
 
 180, 181 
 
 ..569 
 
 ..575 
 
 ..77 
 
 354-357 
 
 592, 595, 596 
 
 .. 535,536 
 
 ..327 
 
 423,426, 
 
 429, 533 
 
 ..15 
 
 .. 116,117 
 
 .. 584 
 
 .. 3U5 
 
 .. 518 
 
 .. 289 
 
 .. 199 
 
 ..358 
 
 Ad. 336 
 
 ..297 
 
 ..73 
 
 .. 72 
 
 . . 26 
 
 565, 566, 
 
 582, 583, 584 
 
 ..326 
 
 327 
 
 .'.' 433,435 
 
 .. 250 
 
 ..183 
 
 Ad. 335 
 
 .. 519 
 
 ..256 
 
 ..360 
 
 ..303 
 
 re 80, App. i. 
 
 Ad. 156 
 
 .. 266 
 
 .. 95 
 
 .. 575 
 
 522, 523 
 
 , 347, 404, 455 
 
 458, 459
 
 LIST OF CASES CITED. 
 
 lxxxi. 
 
 
 Page. 
 
 
 
 Page. 
 
 Spalding v. Thompson 
 
 ..338 
 
 Stevens v. Austen . . 
 
 
 . . 446 
 
 Sparrow v. Fowke . . 
 
 . . 579, 583 
 
 v. Stevens . . 
 
 
 . . 502 
 
 Spencer's case 
 
 .. 171 
 
 Stewart, gds. of 
 
 .. 
 
 .. 36 
 
 Spencer v. Clarke 38S, 
 
 393, 410, 
 
 r. Shelley . . 
 
 433, 
 
 434, 436 
 
 
 427, 449, 455 
 
 v. Alliston . . 
 
 
 .. 289 
 
 v. Pearson 
 
 ..391 
 
 St. George's Estate 399, 
 
 400, 
 
 Ad. 351 
 
 v. Slater . . 
 
 .. 547 
 
 St. George v. Wake 
 
 
 .. 561 
 
 v. Topham 
 
 ..193 
 
 Stileman v. Ashdown 
 
 
 549, 555 
 
 Spicor v. Allmitt . . 
 
 .. 526 
 
 Stiles v. Att. Gen. 
 
 
 .. 554 
 
 Spirett v. Willows . . 61 
 
 , 542, 549, 550 
 
 Stilwell v. Wilkins 
 
 
 .. 145 
 
 Spirit of the Ocean . 
 
 .. 427,474 
 
 Stitz v. Furlie 
 
 
 .. 22 
 
 Spittle v. Davies 
 
 . . 248, 251 
 
 Stockdale v. South Sea Cc 
 
 ). 
 
 .. 446 
 
 Spode v. Smith 
 
 ..37 
 
 Stocks v. Booth 
 
 
 .. 8n. 
 
 Spradbevy's mortgage 
 
 Ad. 53 
 
 v. Dobson . . 
 
 .. 
 
 .. 432 
 
 Sprange v. Smith . . 
 
 .. 315 
 
 Stockton Iron Co. . . 512 
 
 ,525 
 
 , 587-590 
 
 Spratt v. Hobhouse 
 
 ..574 
 
 Stock v. Holland . . 
 
 
 Ad. 282 
 
 Sprange, exp. 
 
 ..524 
 
 v. McAvoy . . 
 
 
 325, 326 
 
 Springett v. Jennings 
 
 165, 188 
 
 Stokes v. Russell . . 
 
 
 .. 158 
 
 Spurrier v. Hancock 
 
 88, 190 
 
 Stokoe v. Cowan . . 
 
 565 
 
 Ad. 542 
 
 Stackhouse v. Jersey 
 
 506, 507, 508 
 
 Stones v. Dowler . . 
 
 
 .. no 
 
 Stack v. Royse 
 
 . . 551 
 
 Stone v. Grnbham . . 
 
 
 .. 550 
 
 Stafl'ordshire Canal Co. v 
 
 Birming- 
 
 Vanheythuysen 
 
 539, 
 
 602, 604 
 
 
 ham C. C. 31 
 
 Stover v. Hunter 
 
 
 .. 527 
 
 Stafford v. Buckley 
 
 .. 179 
 
 Story v. Windsor . . 
 
 
 .. 418 
 
 Stafford v. Clarke . . 
 
 . . 528, 529 
 
 Stourton v. Meeres 
 
 
 .. 301 
 
 Stafford v. Selby . . 
 
 ..317 
 
 Stowell v. Robinson 
 
 
 .. 301 
 
 Stains v. Morris 
 
 .. 175 
 
 St. Paul v. Dudley 
 
 323, 
 
 324, 333 
 
 St. Albans v. Shore 
 
 .. 304 
 
 Strathmove v. Bowes 
 
 
 .. 561 
 
 Standen v. Christmas 
 
 .. 158 
 
 Stray v. Stvay 
 
 
 .. 580 
 
 Standering v. Hall . . 
 
 ..138 
 
 Stringer's estate 
 
 
 222, 223 
 
 Stanfeld v. Cubbitt 
 
 . . 530 
 
 Strode v. Blackburne 
 
 
 379, 380 
 
 Stanhope v. Verney 
 
 .. 397,430 
 
 Strong v. Strong . . 
 
 
 540, 541 
 
 Stanley v. Stanley . . 
 
 .. 138, 287 
 
 St. Saviouv's v. Smith 
 
 
 .. 170 
 
 Stanton v. Tattersall 
 
 . . 288, 304 
 
 Stuart r. Shelley . . 
 
 
 532, 533 
 
 Stapleton v. Haymen 
 
 ..427 
 
 v. Cockerell . . 
 
 
 229, 533 
 
 Stapylton v. Scott . . 
 
 .304 
 
 v. Fergusson 
 
 
 .. 405 
 
 Steadman v. Powell 
 
 ..139 
 
 Stubbins v. Wilkinson 56fe 
 
 ,' m 
 
 , 593-595 
 
 Stead v. Mellor 
 
 ..98 
 
 Sturges v. Bridgeman 
 
 
 Ad. 29 
 
 v. Newman . . 
 
 ..137 
 
 Sturge v. Starr 
 
 
 .. 389 
 
 Steedman v. Price .. 
 
 ..420 
 
 Sturtevant v. Ford. . 
 
 
 .. 349 
 
 Steele v. Liverpool . . 
 
 95, 109 
 
 Sty an, exp. 
 
 . . 
 
 533, 534 
 
 v. McKinley 
 
 Ad. 178 
 
 Suffield v. Brown .. 
 
 
 .. 18 
 
 Steelman v. Poole . . 
 
 .. 450,451 
 
 Suggit's trusts 
 
 
 .. 61 
 
 Steel v. Parry 
 
 .. 548 
 
 Sulger v. Chinn 
 
 . ., 
 
 572, 573 
 
 Stephen's case 
 
 ..220 
 
 Sumpter v. Cooper. . 
 
 
 406, 412 
 
 estate 
 
 . . 406, 4U9 
 
 Sutton v. Chetwynd 
 
 
 164, 560 
 
 Stephenson v. Royce 
 
 ..456 
 
 Swainston v. Clay . . 
 
 
 516, 527 
 
 Stephens r. Lavies 
 
 ..72 
 
 Swan 
 
 
 .. 377 
 
 v. Ollive 
 
 ..560 
 
 v. Barber 
 
 
 Ad. 328 
 
 v. Trueman 
 
 .. 559 
 
 v. Nth. British &c 
 
 .*Co 
 
 426, 
 
 v. Venables , . 
 
 389, 435 
 
 
 
 496, 512 
 
 Stephen v. De Medina 
 
 . . 85 
 
 S wayne's case 
 
 . . 
 
 .. 390 
 
 Sterne v. Beck 
 
 ..299 
 
 Swayne v. Swayne 
 
 
 398, 434 
 
 Stevenson v. Lambert 
 
 ..170 
 
 Sweet v. Anderson 
 
 
 . . 314 
 
 v. Liverpool 
 
 ..39 
 
 Swift v. Jewsbury . . 
 
 
 Ad. 179 
 
 v. McLean 
 
 Ad. 110, 147 
 
 Swindon W. Wks. v. 
 
 wilt 
 
 3 &C 
 
 v. Newnham 
 
 . . 566, 568 
 
 Canal Co . . 
 
 
 10
 
 Ixxxii. 
 
 LIST OF CASES CITED. 
 
 
 
 
 Page. 
 
 
 
 Page. 
 
 Swinfen v. Swinfeu 
 
 
 , 
 
 323 
 
 Tenham's case 
 
 
 603, 607 
 
 Swire v. Francis . . 
 
 
 289 
 
 290 
 
 Tennant v. Trenchard 
 
 
 .. 191 
 
 Syke's case . . 
 
 
 
 596 
 
 Terry, r. 
 
 
 .. 527 
 
 Sykes exp. . 
 
 
 
 526 
 
 Thackrah v. Fergusson 
 
 
 .. 510 
 
 Sykes v. Beadon 
 
 
 
 199 
 
 Thackthwaite v. Cock 
 
 
 .. 527 
 
 v. Sykes 
 
 ' G9 
 
 260 
 
 262 
 
 Tharp, gds. of 
 
 
 .. 137 
 
 Symes v. Hughes . . 
 
 
 
 200 
 
 Thayer v. Lister 
 
 
 .. 595 
 
 Symonds v. Synionds 
 
 
 
 69 
 
 Thelluson v. Woodford 
 
 
 .. 273 
 
 Symons r. Jordan . . 
 
 
 
 518 
 
 Thiedman v. Goldschmit . 
 
 
 .. 389 
 
 Tabor v. Cunningham 
 
 
 
 446 
 
 Thockmorton, r. . . 
 
 
 .. 249 
 
 Taite v. Gosling 
 
 
 
 157 
 
 Thomas v. Buxton 
 
 
 91, 329 
 
 v. Leithead . . 
 
 
 
 124 
 
 v. Dering . . 
 
 
 .. 319 
 
 v. Swinstead 
 
 
 270 
 
 271 
 
 v. Hayward 
 
 
 .. 157 
 
 v. "Williamson 
 
 
 
 292 
 
 v. Howell 
 
 
 .. 310 
 
 Talbot v. Frere 
 
 
 338 
 
 339 
 
 v. Jones . . 
 
 
 Ad. 225 
 
 v. Gulmartin 
 
 
 407 
 
 417 
 
 v. Kemish 
 
 
 .. 357 
 
 v. Tipper 
 
 354 
 
 359 
 
 361 
 
 v. Patent L. Co. 
 
 
 567, 580 
 
 Tamplin v. James . . 
 
 
 Ad. 
 
 281 
 
 v. Powell 102, 275 
 
 273, 309 
 
 Tanner v. Radford . . 
 
 
 
 323 
 
 v. Thomas 
 
 
 .. 339 
 
 Tapner v. Merlott . . 
 
 
 
 235 
 
 Thompson v. Burra 
 
 
 .. 112 
 
 Tarback v. Marbury 
 
 548 
 
 605 
 
 608 
 
 v. Cohen 
 
 
 515, 517 
 
 Tarleton v. Jiddell . . 540 
 
 ,553 
 
 554, 
 
 601 
 
 v. Eastwood . 
 
 
 281-282 
 
 Tasker v. Small 
 
 
 
 155 
 
 v. Giles 
 
 
 535, 536 
 
 Tassell v. Smith 
 
 
 337, 
 
 338 
 
 a . Hudson 299 
 
 301, 
 
 Tate v. Hibbert . . 
 
 
 
 126 
 
 
 
 314, 316 
 
 Taunton v. Morris. 
 
 " 61, J 
 
 . 60 
 
 v. Leach 
 
 
 .. 108 
 
 Taylor e. 
 
 
 
 522 
 
 v. Miles 
 
 
 .. 301 
 
 r. Eckersley 512, 
 
 517, 
 
 519, 
 
 
 Thomson v. Cartwright . 
 
 
 .. 461 
 
 
 
 530, 
 
 531 
 
 v. Fisher 
 
 
 .. 240 
 
 r. Taylor . . 
 
 
 
 583 
 
 Thompson v. Shakespear 
 
 
 .. 275 
 
 v. Ashton . . 
 
 
 
 287 
 
 v. Simpson 
 
 
 .. 421 
 
 v. Baker 
 
 
 
 452 
 
 v. Speirs 
 
 
 532, 533 
 
 v. Baring . . 
 
 
 
 292 
 
 v. Tomkins 
 
 
 434-436 
 
 v. Bowers 
 
 94, 
 
 200, 
 
 377 
 
 v. "Webster 
 
 
 543, 553 
 
 v. Burrows 
 
 
 113, 
 
 117 
 
 Thorndike v. Hunt 
 
 
 391, 425 
 
 v. Chester .. 
 
 
 
 199 
 
 Thorneycroft v. Crockett . 
 
 
 .. 338 
 
 v. Coenen 539, 
 
 541, 
 
 548, 
 
 
 Thornton v. Howe 
 
 
 .. 275 
 
 
 
 549, 
 
 555 
 
 Thorn v. Commrs. of P. W 
 
 ks. 
 
 .. 151 
 
 v. Frobisher 
 
 , , 
 
 
 269 
 
 Thorpe v. Holdsworth 379 
 
 381, 395, 
 
 v. Grange . . 
 
 
 
 365 
 
 
 
 500, 502 
 
 v. Horde . . 
 
 
 
 351 
 
 Threlfall, ex. _ . . 1 
 
 25 
 
 580, 590 
 
 v. Jones 
 
 
 
 604 
 
 v. "Williamson . 
 
 
 576, 578 
 
 v. Manners 
 
 
 
 144 
 
 Thrustout v. Peake 
 
 
 324, 326 
 
 v. McKeand 
 
 
 498, 
 
 499 
 
 Thynne v. Glengal 
 
 
 .. 109 
 
 v. Plumer 331, 
 
 528, 
 
 529, 
 
 536 
 
 Tierney v. Wood . . 
 
 
 .. 124 
 
 v. Pugh 
 
 
 
 561 
 
 Till, e 
 
 
 .. 580 
 
 v. St. Helens 
 
 
 , , 
 
 107 
 
 Tilley v. Thomas . . 
 
 
 .. 299 
 
 v. Stibbert 
 
 352, 
 
 448, 
 
 449 
 
 Tilney v. Norris . . 
 
 
 .. 171 
 
 v. Taylor . . 
 
 
 
 335 
 
 Timson v. Ramsbottom 3 
 
 37, 
 
 432, 
 
 v. Wheeler 
 
 
 
 399 
 
 
 
 434, 436 
 
 Taylour v. Rochfort 
 
 
 Ad. 
 
 129 
 
 Tippin v. Coson . . 
 
 
 .. 235 
 
 Teague's settlement 
 
 
 # . 
 
 258 
 
 Tipton Green &c. v. Tiptor 
 
 i Moat &c. 
 
 Teague v. Wharton 
 
 
 
 36 
 
 
 
 333, 334 
 
 Teasdale v. Braithwaite 
 
 554, 
 
 557, 
 
 560 
 
 Titley v. Davies . . 
 
 
 . 349 
 
 Tebb v. Hodge 
 
 
 
 526 
 
 Todd v. Moorhouse 
 
 
 333, 334 
 
 Tempest r. Craven 
 
 591 
 
 593 
 
 595 
 
 Todhunter r. Norton 
 
 573, 
 
 Tench v. Cheese . . 
 
 
 
 272 
 
 Tollemache v. Coventry . 
 
 
 252-254
 
 LIST OF CASES CITED. 
 
 lxxxiii. 
 
 Piige. 
 Toller v. Attwood . . . . 238-239 
 
 Tomkins v. Colthurst . . . . 12 
 
 v. Saffery 585, 586, 591, 
 
 592, 594, 595, 597 
 Tomson v. Judge .. ..194 
 
 Tone Conservators v. Ash . . 277 
 
 Tope v. Hockins . . . . . . 580 
 
 Topham r. Walter 591, 593, 595, 59(5 
 Topping v. Keysell . . . . 579 
 
 Torrance v. Bolton 106, 280, 292 
 
 Tothill v. Pitt 232 
 
 Tottenham's estate 384, 475, 476, 
 
 App i., iii. vi. 
 Toulmin v. Steere 354, 356, 419, 
 
 458, 459 
 Tourle v. Rand .. .. 500,501 
 
 Tourret v. Crippe 182 
 
 Tourville v. Naish.. .. . 418 
 
 Toussaint v. Hartop . . . . 532 
 
 Towle v. Topham 182 
 
 Townend v. Toker 543, 544, 556, 601 
 Townsend v. Westacott . . . . 549 
 
 Townson v. Tickell 108, 109, 430 
 
 Traders North S. Co 567 
 
 Traill v. Baring . . . . 289, 292 
 
 v. Ellis 328 
 
 Travis v. Milne . . . . 458, 459 
 
 Trecarram v. Friendship . . 219, 220 
 Tregonwell v. Sydenham 255, 256, 
 
 259, 324 
 Tremere v. Morrison ., ..168 
 
 Trethewy v. Helyar . . 41, 42 
 
 Trethowan re. . .514, 516, 522, 526 
 
 Trimmer v. Danby . . . . 429 
 
 Trollope v. Linton . . . . ..119 
 
 Troughton v. Gitley . . . . 499 
 
 Trowell v. Shenton 113, 555, 607 
 
 Trower v. Knightley .. 270, 271 
 Truell, e. . . . . Ap. xx. 
 
 Trumper v. Trumper .. ..197 
 
 Tucker v. Barrow 326 
 
 v. Hernaman . . . 499 
 
 v. Inman . . . . . . 139 
 
 v. Laing . . . . , . 144 
 
 Tuffnell v. Borrell 374 
 
 Tulk v. Moxhay . . . . 174, 175 
 
 Tullet v. Armstrong . . . . 138 
 
 Tunstall v. Trappes 353, 361, 408, 
 
 417, 420 
 
 v. Trappes 408, 417, 418, 420 
 
 Turner & Skelton r. . . . . 309 
 
 v. Back 403 
 
 v. Collins . 30, 132, 133 
 
 v. Hardcastle . . 570, 579 
 
 v. Marriott . . . . 93, 330 
 
 Turpin r. Brown . . . Ad. 330 
 
 v. Chambers . . . . 320 
 
 Page. 
 Turvin v. Newcome 256, 260, 265 
 
 Tweddle v. Atkinson .. ..162 
 
 Tweedale v. Tweedale . . 337. 349 
 Twynam v. Hudson . . Ad. 229 
 
 v. Pickard . . . . 157 
 
 Twyne's case . .539, 550, 555, 608 
 
 Tylee v. Webb . . 449, 460, 464 
 
 Tyler v. Thomas 342 
 
 v.Yates .. .. 208-210 
 
 Tyrrel's case . . . . . . 322 
 
 Tyrrel v. Marsh 353 
 
 Tyrringham's case.. .. .. 17 
 
 Tyrwhitt v. Tyrwhitt . . . . 323 
 
 Udal v. Walton 575 
 
 Udell v. Atherton . . 288, Ap. vi. 
 
 Underhill v. Horwood . . . . 145 
 
 v. Roden 228, 234, 440 
 
 Underwood v. Courtewn . . . . 453 
 
 Ungley v. Ungley . . .. 186, 187 
 
 Union Bk. r. Jackson . . . . 526 
 
 v. Ingram . . Ad. 316 
 
 v. Lenanton 428, 470, 
 
 516, 522, 523 
 Unity &c. Ass., r. King . . . . 119 
 
 Universal L.A. Co., exp. . . . . 154 
 
 Universal Nontariff Co 288 
 
 Upperton v. Nickolson . . . . 303 
 
 Upton v. Basset . . . . 603-605 
 
 Urquhart v. Macpherson 113,115, 291 
 Vale r. Bannister . . . . 569, 573 
 
 Valpy v. Chaplin . . . . Ap. i. 
 
 Vancouver v. Bliss. . 301, 308, 383 
 
 Vanderplank v. King .. 241-243 
 Vane, E. v. Rigden . . . . 38 
 
 Vaughan v. Edridge . . 313, 317 
 
 Vaughton v.Noble.. .. 132,194 
 
 Vaux r. Couston . . . . 527, 534 
 
 Veale v. Veale 126 
 
 Veness r. Gwynn . . . . 572, 573 
 
 Vere, ex 589 
 
 Verner v. Winstanley . . . . 316 
 
 Vernon's case .. .. 310,311 
 
 Vernon v. Vernon 97, 163, 164, 
 
 557, 558, 560 
 Vertue v. Jewell . . . . . . 417 
 
 Vicarino v. Hollingsworth 514 
 
 Vickers v. Hand . . . . 87 
 
 v. Hertz . . . . 509, 510 
 
 Vigers v. D. St. Pauls . . . . 278 
 
 v. Pike .. .. 288, 291 
 
 Villars r. Rogers . . . . . . 566 
 
 Villiers r. Rogers . . . . . . 570 
 
 v. Beaumont . . . . 604 
 
 Vincent v. Ennys . . . . . 354 
 
 Viner v. Cadell 525 
 
 Vine r. Wilson .. .. .. 71 
 
 Viney v. Chaplin . . . . . . 507
 
 LIST OF CASES CITED. 
 
 
 Page. 
 
 Vint v. Padget 
 
 .. 349, 389 
 
 Voller v. Carter 
 
 . . 234 
 
 Vorley v. Cooke 
 
 379, Ad. 291 
 
 Vyvyan v. Arthur . . 
 
 .. 158 
 
 Waddle v. Wolfe . . 
 
 ..106 
 
 Wadling v. Oliphant 
 
 ..71 
 
 Wain ford v. Hayle 
 
 ..137 
 
 Wakefield v. Gibbon 
 
 .. 557,558 
 
 Waldron v. Sloper . . 
 
 .. 503 
 
 Waldy v. Gray 
 
 .. 461 
 
 Walford v. Grey 
 
 165,558 
 
 Walker v. Clay 
 
 ..499 
 
 v. Reeve . . 
 
 ..170 
 
 Wallace v. Auldjo . 
 
 ..61 
 
 v. Donegal 
 
 . . 407, 409 
 
 Wallingford v. Mutual Society Ad. 316 
 Wallis v. Crimes . . . . . . 315 
 
 V. Portland 207 
 
 Wallop v. Shaftesbury .. ..315 
 
 Walmesley v. Butterworth . . 353 
 
 v. Pilkington . . 262, 267 
 
 Walmsley v. Foxhall . . Ad. 33 
 
 Walsh ' 476 
 
 v. Lincoln . . . . . . 205 
 
 v. Wason . . . . 61 
 
 Walters v. Woodbridge . , . . 333 
 
 Walton r. Levy .. .. Ad. 62 
 
 Walton's case 390 
 
 Walton v. Stamford . . . . 358 
 
 Walwyn v. Lee . . . . 379-381 
 
 Warburton v. Farn . . . . 353 
 
 v. Hill 416, 419, 434, 
 
 436, 469 
 v. Loveland . . . . 406 
 
 Warden r. Williams .. 582,284 
 
 v. Jones 543, 545, 546 
 
 Warde v. Dixon . . 299, 302, 446 
 
 Ward v. Audley . . . . . . 126 
 
 v. Beck . . . . 472, 474 
 
 v. Day 311 
 
 v. Dyas 323 
 
 v. Hobbs 293 
 
 v. Seedman . . . . 327 
 
 v. Turner . . . . • 124 
 
 v. Ward . . 33, Ad. 60 
 
 Ware v. Cann . . . . 247, 248 
 
 v. Egniont . . . . . 447 
 
 v. Gardner .. 541, 549, 550 
 
 v. Polhill . . 255, 256, 270 
 
 Waring, e 165, 176, 177 
 
 v. Coventry 260, 261, 330 
 Warner v. Willington .. 149,183 
 Warrick v. Warrick 458, 460, 461 
 Warriner v. Rogers .. ..124 
 Waters v. Bailey . . . . 197 
 Watkins r. Couston . . 527, 534 
 v. Birch 527 
 
 Watkins v. Reinagale . . . . 521 
 
 Watson r. Love 515, 516, 522, 523 
 
 r. Roberts . . Ad. 70 
 
 v. Marston . . . . 280 
 
 v. Midwales R. Co. . . 154 
 
 v. Peach 527 
 
 v. Rod well .. ..132 
 
 Watts v. Ainsworth . . . . 149 
 
 v. Crook . . . . 35 
 
 v. Kelson . . . . 18 
 
 v. Porter 400 
 
 v. Stubbs . . . . 288, 289 
 V. Symes 337-339, 356, 357 
 
 v. Watts 179 
 
 Waugh, r. 518, 571, 572, 574, 588 
 
 Way's trusts .. .. .. 125 
 
 Webb v. England . . . . Ap. xiv. 
 
 v.Hughes .. .. 301-303 
 
 v. Maxwell 301 
 
 v. Russell 158 
 
 v. Whinney .. 530, 531 
 
 Webster v. Cook .. .. 130,209 
 
 v. Webster . . . . 389 
 
 Weekly v. Wildman . . . . 8 n. 
 
 Weeton v. Woodcock . . . . 6 
 
 Weguelin v. Cellier . . . . 348 
 
 Weir v- Bell 286 
 
 Welcome v. Upton . . . . 8 n. 
 
 Weller v. Ker 352 
 
 Wellington v. Wellington Ad. 221 
 
 Welman v. Welman . . Ad. 94 
 
 Wensley r. Wensley 568, 582, 584 
 
 Wescot's case .. .. ..33 
 
 Westbrook v. Blythe 408, 420, 464 
 
 Western Bk. v. Addie . . . . 286 
 
 Western v. McDermott 159, 161, 174 
 
 v. Russell .. 145, 318 
 
 Westmacott v. Robins . . . . 321 
 
 Weston's case . . . . . . 567 
 
 Weston v. Collins 314 
 
 West v. Baker 399 
 
 v. Berney . . . . 350-352 
 
 v. Houghton . . . . 162 
 
 v. Reid . . . . 447, 451 
 
 v. Shuttleworth . . . . 275 
 
 Wetherall v. Thornburgh . . 273 
 
 Wetherby v. Dixon . . . . 326 
 
 Whaley Br. &c. Co. v. Green Ad. 195 
 
 Whaley v. Bagenal .. 116,189 
 
 Wheate v.Hall .. .. 269, 270 
 
 Wheatley v. Slade . .. 319,320 
 
 Wheeler Ad. 138 
 
 v. Duke 234 
 
 v. Warner . . . . 315 
 
 Whicker v. Hume . . . . . . 275 
 
 Whincup v. Hughes . . . . 150 
 
 Whitbread v. Jordan . . . . 449
 
 LIST OF CASES CITED. 
 
 lxxxv. 
 
 Page. 
 Whitbread v. Smith . . 654, 555 
 
 White & Hindle's contract 232-235 
 
 ex 569 
 
 v. Bradshaw . . 288, 304 
 
 v. Cox 117 
 
 v. Cudden .. 286, 306, 319 
 
 v. Hillacre 338 
 
 v. Hunt .. .. Ad. 108 
 
 v. Morris .. . . . . 542 
 
 v. Muller 522 
 
 V. Sansome . . . . . . 557 
 
 V. Stringer . . . . 603, 607 
 
 v. Wakefield 329, 454, 498, 505 
 v. Warner . . . . . . 314 
 
 v. West 261 
 
 Whitfield v. Brand . . 528, 529 
 
 v. Fausset .. 451, 501 
 
 Whitmarsh v. Robertson . . . . 353 
 
 Whitmore v. Claridge .. 576,578 
 
 v. Empson . . . . 526 
 
 v. Mason . . 587, 588 
 
 v. Turquand 100, 315, 316 
 
 Whittaker v. Shakleton . . .293 
 
 Whittemore v. Whittemore 303,318,319 
 
 Whittingham v. Jennings . . 540 
 
 Whitton v. Peacock .. 158,171 
 
 Whitworth v. Gaugain . . 346, 400 
 
 v. Rhodes . . . . 338 
 
 Wicks r. Wicks . . . . Ad. 70 
 
 Widgery v. Tepper . . 3, 55 
 
 Wier v. Wier .. .. 566, 567 
 
 Wigg v. Wigg 418 
 
 Wiggens, ex. . . . . . . 528 
 
 Wight's Mortgage-trust .. .. 407 
 
 Wigsell v. Wigsell . . 323, 324 
 
 Wilbraham v. Livesey . . . . 446 
 
 Wilcoeks, e. . . . . . . 323 
 
 Wilcocks's settlement 221, 222, 269 
 
 Wilde t. Foit 301 
 
 v. Gibson . . 290, 305, 460 
 
 Wild's case .. .. 231, 234 
 
 Wilkerv. Bodington 402, 419, 430, 453 
 Wilkes v. Greenhill . . 434, 436 
 
 Wilkinson 367, 434 
 
 's gds Ad 182 
 
 v. Hartley . . . . 301 
 
 v. Joughin . . 292, 293 
 v. Lingren .. . . 275 
 
 v. Wilkinson . . . . 200 
 
 Wilkins, r Ad. 223 
 
 Willan v. Willan 121 
 
 Willats v. Busby 601 
 
 Willes v. Greenhill .. 434,436 
 
 Willet v. Clarke 88 
 
 Williams, e. . . 334, 528, 529 
 
 r. Thompson . . 5S7-590 
 
 Williamson v. Barbour . . . . 461 
 
 Page. 
 
 Williamson v. Clements .. ..142 
 
 v. Wooton .. . . 102 
 
 Williams r. Thompson . . . . 525 
 
 v. Allen 3S1 
 
 v. Bay ley .. ..134 
 
 v. Bosanquet .. 170-172 
 v.Chambers .. Ad. 71 
 v. Earle .. ..170 
 
 v. Evans . . . . 185 
 
 v. Glenton . . . . 87 
 
 v. Kershaw . . 94 
 
 v. Lewis . . 253, 255, 272 
 
 v. Mostyn 299, 314-316 
 
 v. Owen . . 315, 316, 391 
 
 v. Sorrell.. .. 453, 497 
 
 v. Teale . 241-242, 252, 259 
 v. Thorp . . . . 432, 436 
 
 v. Waters . . 438, 439 
 
 v. WLUiams 99, 187, 553, 
 
 Ad. 433 
 Willis v. Brown . . . . . . 415 
 
 v. Hiscox . . . . . . 247 
 
 v. Shorral . . . . . . 352 
 
 Willmot v. Barber.. .. Ad. 99 
 
 Willock v. Noble .. .. 137-139 
 
 Willoughby v.Willoughby 400,402, 431 
 
 Wills v. Stradling 185 
 
 Wilmot v. Pike 390, 394, 398, 430, 431 
 
 Wilson, r 519, 551 
 
 Wilson's case .. .. .. 114 
 
 Wilson v. Church . . . . Ad. 330 
 
 v. Finch-Hatton . . 77 
 
 v. Greenwood . . . 587 
 
 v. Harte 174-175, 450, 451 
 
 v. Keating . . . . . . 455 
 
 v. Thornbury . . ..Ill 
 
 v. Wiilani .. Ad. 72, 127 
 
 v. Wilson . . 272, 472, 531 
 
 Wiltshire Iron Co. . . .. .. 567 
 
 Wiltshire v. Rabbits . . 393, 398 
 
 Windham v. Richardson . . . . 430 
 
 Windsor's case .. .. ..171 
 
 Wingfield r. Florence . . . . 524 
 
 W r ing v. Tottenham Ry. Co. . . 328 
 Winter, ex. . . . . . . 485 
 
 Winterbottom v. Ingham . . . . 186 
 
 Winter r. Softley 516 
 
 v. Anson 328, 329, 458, 
 
 459, 461 
 
 v. Blades . . . . 86, 87 
 
 v. Winter . . . . . 429 
 
 Wiseman v. Beake . . .. 130,132 
 
 v. Westland .. 452, 501 
 
 Wise v. Wise . . . . .435 
 
 Withernsea Brickwors . . . . 569 
 
 Withington v. Tate . . .497 
 
 Wollaston v. King . . . Ill, 255
 
 lxxxvi. 
 
 LIST OF CASES CITED. 
 
 
 
 
 Page. 
 
 "Wollaston v. Tribe 
 
 , # 
 
 128, 
 
 546 
 
 Wolley v. Jenkins . . 
 
 
 269, 
 
 270 
 
 Wolverhampton B. Co. v 
 
 Marston 
 
 
 
 
 546 
 
 547 
 
 Woodgate v. Godfrey 
 
 
 513 
 
 -515 
 
 Woodhouse v. Murray 
 
 
 
 578 
 
 Woodman v. Blake 
 
 311 
 
 Ad. 
 
 311 
 
 Woodr. 116, 564, 568, 
 
 581 
 
 583, 
 
 
 
 585, 
 
 586, 
 
 605 
 
 v. Abrey 
 
 
 
 121 
 
 v. Drew 
 
 
 
 265 
 
 v. Griffiths . . 
 
 
 305, 
 
 318 
 
 Woodyatt v. Gresley 
 
 
 
 416 
 
 Worcester G. E. Co. 
 
 458, 
 
 459, 
 
 462 
 
 AVordall v. Smith . . 
 
 
 
 515 
 
 Wormald v. Maitland 
 
 
 
 407 
 
 Wormsley's estate . . 
 
 
 
 42 
 
 Worrall v. Jacob . . 
 
 
 553, 
 
 560 
 
 Worseley v. d. Mattos 
 
 
 582, 
 
 584 
 
 v. Scarborough 
 
 
 
 460 
 
 v. Worseley 
 
 
 
 69 
 
 Worthington v. Curtis 
 
 
 
 326 
 
 v. Evans 
 
 
 . m 
 
 315 
 
 v. Morgan 
 
 
 449, 
 
 450 
 
 Wotton v. Cooke . . 
 
 
 , . 
 
 153 
 
 Wragge's case 
 
 
 
 436 
 
 Wray v. Steele 
 
 
 
 322 
 
 Wren v. Kirton 
 
 
 Ad. 
 
 89 
 
 Wright, r., 532, 572, 
 
 574 
 
 575 
 
 591 
 
 AVrightson v. Hudson 
 
 
 
 453 
 
 Wright v. Crookes . 
 
 
 285, 
 
 286 
 
 V. Howard 
 
 
 
 298 
 
 Wright v. Stanfield 
 v. Wilkin . . 
 Wrout v. Dawes 
 Wyatt's & Wild's case 
 Wyatt v. Barwell . . 
 Wydown's case 
 Wyllie v. Pollen 
 Wynch,- e. . . 
 
 v.Packington 
 Wynn 
 
 Wynn Hall C. Co. . . 
 Wynn v. Morgan 
 Wythes v. Lee 
 Wythe v. Henniker 
 Wyvill v. Bp. of Exeter . , 
 Talden v. Austin . . 
 Yale v. Yale 
 Yelverton v. Yelverton 
 Yem v. Edwards . . 
 Young, ex. 
 
 Younghusband v. Gisborne 
 Young r. Lark 
 
 v. Fletcher 
 
 v. Glover 
 
 v. Grote 
 
 v. Kitchen . , 
 
 v. Lambert . . 
 
 v. Peachy . . 
 
 v. Smith 
 
 v. Young 
 
 v. Waud 
 Zouch v. Parsons . . 
 
 154, 
 
 389, 
 
 Page. 
 .. 406 
 .. 315 
 .. 327 
 .. 20 
 
 407, 409 
 .. 569 
 
 460, 462 
 .. 235 
 .. 325 
 .. 367 
 Ap. i. 
 .. 301 
 .. 330 
 .. 454 
 .. 88 
 
 325, 326 
 .. 199 
 
 212, 439 
 .. 198 
 .. 333 
 
 246, 247 
 .. 588 
 
 582, 583 
 .. 425 
 .. 503 
 
 348, 427 
 
 .. 428 
 
 322 
 
 .. 95 
 
 391, 395 
 
 582, 584 
 .. 118
 
 ADDENDA ET CORRIGENDA. 
 
 [These will be found at the end of the work 
 immediately before the Index. They commence 
 at p. App. xxv].
 
 CONCISE PRACTICAL TREATISE 
 
 ON THE 
 
 LAW of PEOPEETY. 
 
 CHAPTER I. 
 
 SUBJECTS OF PROPERTY. 
 
 The law of property is founded on the idea of ownership 
 by which some individual (or some company of individuals) 
 is (or are) authorized to enjoy (to the exclusion of all other 
 persons) the advantages derivable from some particular 
 subject, or some one or more of those advantages. 
 
 The most important division of the subjects of property (at 
 least in English Law) is into Tenements and Chattels, or, 
 as they would be termed in other legal systems, moveable 
 and immoveable property. 
 
 The best definition which I can frame of the word "tene- 
 ment" is that it denotes a definite space appropriated to 
 individual ownership. Land is said to be a "tenement." 
 But when earth, sand, or minerals, are removed from their 
 adherence to the general body of the ground they are 
 deemed chattels, whereas all that grows out of or is fixed 
 to the land is considered (so long as it continues thus 
 fixed or growing) to be a tenement ; and though air is 
 not susceptible of permanent ownership, yet the space 
 which it fills and through which it travels belongs so com- 
 pletely to the owner of the land below that he may main- 
 tain an action against anyone passing through (or perhaps 
 over (a)) the land without his permission, or even against 
 anyone whose buildings project over it (b). Within this 
 space all subjects existing in situ are regarded as tenements, 
 and are subject to the same laws as land, and indeed are 
 
 («) See this curious question raised ering v. Rudd, 4 Camp. 220. 
 in Kenyon v. Hart, 6 B. & S. 249 ; Pick. (b) See Corbett y.Hall, L.R. 9 Eq. 671. 
 
 Ownership 
 defined. 
 
 Kinds of 
 property. 
 
 Distinction 
 between tene- 
 ments and 
 chattels.
 
 SUBJECTS OF PROPERTY. 
 
 Distinction 
 between 
 Corporeal and 
 Incorporeal 
 subjects. 
 
 Distinction 
 between 
 Profits in 
 prender and 
 Easements. 
 
 Characteristics 
 of Easements. 
 Distinguished 
 from natural 
 rights. 
 
 Distinguished 
 from benefits 
 lying in 
 covenant. 
 
 comprehended under the term "land" in its legal sense, 
 even though they consist not only of earth, but also of 
 metals, stones, sand, trees, shrubs, and underwood (a). 
 But when they have been detached (though still lying on 
 the surface) they fall under the same laws which govern 
 articles of human manufacture and all kinds of moveable 
 property, and are like them termed "chattels." 
 
 Again both tenements and chattels are divided into 
 subjects Corporeal and Incorporeal. For when a man is 
 interested in any subject of property, he may be entitled to 
 enjoy either all the benefits derivable from it or some of them 
 only; and although in the case of a chattel the latter modi- 
 fied ownership is of so little value that it is not found to 
 occur in practice, yet in case of a tenement it is of frequent 
 occurrence, one man being entitled, (for example,) to depas- 
 ture his cattle on another's land, or to walk through it, or to 
 drain water through it. Such latter ownership when it is 
 of a nature authorizing the party entitled to it to take away 
 something (as in case of a right of pasturage) is called 
 a " Profit in prender;" when it is not of this character it is 
 generally termed an "Easement." But this latter name is 
 not considered appropriate to such rights of this character 
 as are given by law without any agreement of the parties (b), 
 (as for example the right to have for one's land such a degree 
 of support from one's neighbour's land as will maintain the 
 former in its natural state); nor is it held to be applicable 
 to all such as arise from agreement or grant, but to those 
 only which belong to certain specified classes which alone 
 can be clothed with the legal estate, the others being 
 capable of beneficial ownership only (c). The Judges have 
 not (that I am aware of) expressly stated any reason for 
 refusing the protection of the legal estate to the numerous 
 rights of this nature which are nevertheless allowed to 
 originate in covenant and exist beneficially, but the reason 
 
 (a) Co. Litt., 4a. [172. 
 
 (6) Bryant v.Lefever, L. R. 4, C. P. D. 
 
 (c) Keppelv. Baiky, 2 M. & Ke. 538.
 
 SUBJECTS OF PROPERTY. 
 
 3 
 
 seems to be that they are less easily discernible than 
 those which are allowed to be clothed with it, and that an 
 intending purchaser of the servient tenement is there- 
 fore more likely to be deceived in respect to them. There 
 is also a species of right which the law for convenience 
 reckons as a subject of property, viz. the right to receive 
 money, or some other chattel of a specified kind, but not of 
 specific identity (i), from some person who has himself con- 
 ceded (or who derives under one who has conceded) one's 
 claim to it, (a circumstance which distinguishes the right 
 from a right of action against an adverse claimant, which 
 latter is in our law more strictly termed a " right") (a.) The 
 former kind of right (the right to receive money &c. from 
 some person who has conceded or who derives under some 
 one who has conceded one's claim) is called a "profit in 
 render," when it entitles one to receive money &c. from 
 whomsoever may for the time being be owner of some 
 particular tenement, but a "chose in action" when it 
 entitles one to receive money &c. from an individual. 
 
 Probably there is no system of law in which exactly the 
 same rules are applicable to tenements (or immoveables) as 
 to chattels (or moveables) ; but in our system some of the 
 leading rules are extremely dissimilar, owing to the fact that 
 rules of law which, when the feudal system flourished, were 
 invented for its maintenance, have never on these points 
 been altered by Parliament, although they are wholly 
 unsuited to the circumstances of modern society, and we 
 in general (either by the express provisions of some 
 disposition or contract, or by separating the legal from the 
 beneficial interest,) prevent, as far as we can, their practical 
 operation. At the same time the tendency of modern 
 legislation and decision is to unify the rules applicable to 
 
 (i) If I am correct in this definition, the distinction between corporeal and 
 incorporeal chattels does not depend on whether the chattel he in the custody 
 of the owner or of a third person. See on this point Widgery v. Tepper, L. R., 
 7 Ch. D. 423. 
 
 (a N Hunt v. Bishop, 8 Ex. 675. Hunt v. Remnant, 9 Ex. 635. 
 
 Profits in 
 render and 
 choses in action 
 defined. 
 
 Law applicable 
 to tenements 
 contrasted with 
 that applicable 
 to chattels.
 
 4 SUBJECTS OF PROPERTY. 
 
 these two kinds of property, and to do away (though too 
 
 slowly) with the preposterous technicalities which now 
 
 attend on the doctrine of the Legal estate. 
 
 Leading To enumerate the different kinds of profits and easements 
 
 respecting 3 would be almost as useless a task as to attempt to 
 
 chattels and enumerate all the different kinds of chattel property, but 
 
 TDrOIltS cCG 
 
 there are a number of leading distinctions affecting both 
 classes of property which have a serious legal import. 
 When All such interests in tenements as cannot exceed in 
 
 treated as duration a particular time (whether or not they are also 
 
 chattels. terminable on a contingency which may happen before the 
 
 Terms of years, effluxion f t Hat time,) and all interests therein held at will, 
 and the beneficial estate in all securities for money, and 
 even the legal estate in such as are merely in the nature 
 of a lien or charge, are governed by the laws applicable to 
 chattel property. In case of securities for money the 
 reason of this is obvious: — it is a mere application of the 
 maxim accessovium sequitur swum principale. In the case of 
 interests which cannot endure beyond a fixed period, it is 
 an example of one of the imperfections of judiciary law, viz: 
 that of the tendency to extend a rule of law beyond the 
 limits prescribed by its reason. The rule was originally 
 applied only to short terms held by tenant farmers who 
 used the land merely as a means of commercial profit, and 
 was established at a time when long terms of years were 
 never granted ; but when these became common it was held 
 that the reason for treating this particular interest in land 
 as a chattel was, not that it was used for the purpose of 
 making money, but that it was limited in duration by an 
 ascertained period, and the doctrine was therefore extended 
 to all interests which cannot exceed in duration a term of 
 years, even though they may have originated in a mortgage 
 by which the absolute owner has conveyed the land for 
 iooo years to the mortgagee and he has afterwards fore- 
 closed, or in a marriage settlement by which the land may
 
 SUBJECTS OF PROPERTY. 
 
 have been limited to the husband for ioo years if he shall 
 so long live, so that an uninstructed person might suppose 
 the limitation would be substantially the same as an 
 ordinary life estate. From this doctrine a practical result 
 follows, which is worth attending to in these days when the 
 propriety of the law of primogeniture is being called in 
 question, viz., that any landowner who desires to per- 
 manently abrogate that law as to his own property can 
 do so by simply conveying his estate to a trustee, and then 
 causing the trustee to let it to him for a million (or any 
 other number) of years, without impeachment of waste, 
 with covenant for perpetual renewal ; and in doing this he 
 may (by reserving to himself a power of appointment) 
 continue competent (without the concurrence of the trustee) 
 to dispose of the fee-simple. 
 
 Emblements too (that is growing crops) may be reaped 
 by the executors of an occupier whose interest terminates 
 by the happening of a contingency, (i) and thus they in 
 some degree partake of the chattel character. 
 
 Then again there are three different circumstances under 
 which chattel property is treated as subject to the law 
 which governs the tenement, or real estate. These are 
 when it is (a) a fixture, (b) an heirloom (strictly so called,) 
 or (c) a muniment of the title to any other than a chattel 
 interest. 
 
 As regards fixtures, many intricate questions no doubt 
 come before the Courts as to what will change a chattel 
 from its ordinary character to that of a fixture, and how 
 far the law of real property is applicable to fixtures under 
 particular circumstances, for it does not govern them 
 equally under all. (d) But these details are quite beyond 
 the province of the present work. Suffice it to say that, 
 
 Consequently 
 real estate may 
 be made to 
 devolve like a 
 chattel. 
 
 Emblements. 
 
 When Chattels 
 are treated as 
 tenements. 
 
 Fixtures. 
 
 (i) As to tenants at rack rent this is altered by the 15 Vic. o. 25, s. 1. 
 (a) See Meux v. Jacobs, L. R , 7 H. L. (6) Co. Litt. 8a. 
 490; D'Eynecourl v. Gregory, L. R. 329 (c) 19, H. 3. 
 382. (d) Meux v. Jacobs, L.R., 7 H. L. 490.
 
 6 SUBJECTS OF PROPERTY. 
 
 as a general rule, whatever is attached to the solid ground, 
 or to anything built thereon, is treated as part of it, (i) but 
 that for the purpose of encouraging trade (a) and agriculture 
 
 (b) the judges have made an exception to this rule in cases 
 where a tenant before the expiration of his lease (or within 
 a reasonable period afterwards while he retains possession) 
 
 (c) removes fixtures which he may have affixed for either 
 of these purposes; and as the whole doctrine which 
 forbids a man to remove from property that which he 
 had fixed during his occupation of it is unjust, the judges 
 have not always been logical in endeavouring to evade it (d.) 
 We must therefore class this branch of the law amongst 
 those (alas too numerous) which from a similar cause 
 bristle with subtile and unnecessary refinements. 
 
 Heirlooms. The term "heirloom" is sometimes used to denote a 
 
 chattel (e) which has been conveyed upon trust to permit 
 it to be enjoyed along with land so long as the rules of law 
 and equity will permit, but such an heirloom still remains 
 a chattel. The heirlooms of which I am speaking are the 
 wild (/) animals which are preserved or dwell upon 
 one's land (as, deer in one's park, rabbits in one's warren, 
 bees, &c.) In these only a qualified property can be 
 acquired, and this qualified property is in the owner for the 
 time being of the land. 
 
 Title deeds. Documents of title again (though they are so far chattels 
 
 that they may be the subject of detinue,) (g) are nevertheless 
 the property of the owner for the time being of the land to 
 which they relate, or the principal portion of it, and it 
 would even seem from Co. Litt. (A) that they may (separ- 
 ately from the land) be entailed and otherwise dealt with as 
 real estate. 
 
 (i) The maximis quicquid plantalur solo, solo accedit. 
 
 (a) Grady on Fixtures, cli. 4, s. 2. (d) See Grady, cli. 4, s. 4. 
 
 (b) St. 14 and 15 Vic., c. 25, S. 3. (e) Shelley v. Shelley, L. R., 6 Eq.540. 
 
 (c) Weetonv. Woodcock, 7 M. andW., (f) Co. Litt. 8a. 185b., 1 Vera. 273. 
 14, 19; Exp. Brookic Roberts, L. B., 10 (g) Co. Litt, ib., & 286b. 
 
 C. P. D. 100. (A) Co. Litt., 20a. citing 19 H. 8 3.
 
 SUBJECTS OF PROPERTY. 7 
 
 As regards profits in render, an attempt is made by the Technicalities 
 
 ... . , ,.....«,. _. respecting the 
 
 old writers to introduce technicalities into the law respect- constitution of 
 
 ing them by declaring that a Rent must be certain and Pro p s ni 
 
 annual ; but nothing is more certain than that rent need not 
 
 be uniform, for a rent of a peppercorn during each of the 
 
 first three years and a specified sum of money afterwards 
 
 is quite valid; nor need it be annual, for a weekly rent is 
 
 very usual, and Baron Parke (afterwards Lord Wensley- 
 
 dale), in one of those finished judgments (a) for which he 
 
 was distinguished has intimated that a rent accruing but 
 
 once in twenty years would be equally so. 
 
 The law as to Profits in prender and Easements is difficult Technicalities 
 
 of access from the circumstance that most of the cases in constitution of 
 
 which their validity has been inquired into have been cases Profits in 
 
 . . r prender and 
 
 in which the question was whether the profit or easement Easements. 
 
 claimed could be acquired by prescription. It does not 
 
 follow that because a profit, &c, cannot be acquired by 
 
 prescription it cannot be acquired by an express grant (b) 
 
 really made, — for although it is a technicality of English 
 
 law that nothing can be claimed by prescription unless it 
 
 might have been granted, nor until the Court has found 
 
 that it was anciently granted, yet it does not follow that 
 
 the Court will make this fiction in every instance in which 
 
 enjoyment is proved, and a grant consistent with it is 
 
 shewn to have been possible. The Court will only do so 
 
 when the enjoyment appears to be of a reasonable 
 
 character (c), (that is such as not to subject the owner of the 
 
 servient tenement to an indefinite burthen). We are here 
 
 concerned not with the question what kind of profit or 
 
 easement may be prescribed for, but with the question what 
 
 kind may by any means exist in law, and we therefore are not 
 
 entitled to say that (for example) a right of Pasturage for 
 
 an unlimited number of beasts cannot exist, though it 
 
 (a) Owen v. De Beauvoir, 16 M. &\V. (c) Angus y. Dalton, L. R., 4 Q. B. 
 566. D. 174-5. 
 
 (6) Bryant v. Lefever, L. R. 4 C. P. 
 D. 117, /. 6.
 
 8 SUBJECTS OF PROPERTY. 
 
 cannot be claimed by prescription (a). It has been laid down 
 that an easement cannot (though a profit clearly may) be 
 owned by anyone except as appurtenant to land which (or 
 the occupier of which) is benefitted by it. But this 
 doctrine, which is an importation from the Roman law, 
 cannot yet be considered as fully established amongst us (i) 
 
 Meanings of 
 the word 
 " Easement." 
 
 (i) Great difficulty in framing an accurate statement on this subject arises 
 from the poverty of our language. The word "easement" is sometimes used 
 to mean any portion of the ownership separated from the rest, and in this sense 
 includes a profit in prender — sometimes to mean any portion so separated but 
 without profit, and in this sense includes a natural right — sometimes to mean 
 any portion so separated but without profit and originating in the act of the 
 parties, and in this sense includes a right conferred on one, his heirs and assigns, 
 whether or not appurtenant to a dominant tenement — sometimes to mean any 
 portion so separated but without profit originating in the act of the parties and 
 annexed to some dominant tenement, and in this sense (in which alone the 
 word is used in Mr. Goddard's work) ft is true, indeed, that there cannot be an 
 easement in gross, but true only by virtue of the definition, not by virtue of any 
 rule of law. It is difficult to conceive a right of water-course not beneficial to 
 (and therefore necessarily incident to) land, and the same holds good with 
 respect to many other easements. It is clear however that a right of way may 
 exist in gross, though it cannot be assigned over nor (it seems) descend (6). 
 It is also clear that a right to use pleasure boats for hire can be created in gross, 
 though, (for the reason already (c) given), it cannot be clothed with the legal 
 estate (dj. Still, a Pew-right cannot be granted in gross (e) unless by special 
 enactment (f). 
 
 It may therefore be a general rule that an Easement (without profit) can only 
 bo created as appurtenant to Land. But a Profit in prender may be granted 
 without any such restriction whether it be a right to take trees (g), or minerals 
 (A), or fish (i), or to depasture (exclusively of the occupier of the land) an unlimi- 
 ted number of cattle (j). And such a profit in gross may be assigned over (£). 
 And an easement may be appurtenant to a profit of this character. Thus, an 
 Authority to enclose a wood in which the grantee is to take trees may be made 
 appurtenant to the right to take the trees (/). However, a right in gross to de- 
 pasture an unlimited number of cattle in common with the occupier cannot be 
 granted over (m) ; but this is because if this were allowed the charge upon the 
 occupier might bo increased so that he might not have enough pasture for his 
 own cattle. 
 
 And a profit or easement cannot be joined as appurtenant to specified land 
 unless it be beneficial to that land (n). 
 
 The most valuable of the cases cited here are Bailey v. Stevens, aud (as to 
 the argument) Shuttleworth v. Le Fleming. 
 
 (a) Mellor v. Spateman, 1 Saund. 345. (<?) Barrington's Case, 8 Co. 186b. 
 
 (b) Ackroyd v. Smith, 10 C. B. 164, (A) Sd. Bailey v. Stevens, L. J. 31 C. 
 in which however the only point for P. 228a; sd. Musket v. Hill, 5 Bing. 694. 
 
 decision was whether a right of way 
 unconnected with the enjoyment of a 
 specified tenement can be annexed to 
 that tenement. 
 
 (c) Ante, p. 3. 
 
 (d) Hill v. Tupper, 2 H. & C. 121. 
 
 (e) Stocks v. Booth, 1 T. R. 432. 
 
 (f) Brumfitt v. Roberts, L. R. 5 C. P. 
 224. 
 
 (t) Shuttleworth v. Le Fleming, 19 C. 
 B. N. S. 709 fin. 
 
 (j) Welcome v. Upton, 6 M. & W. 536. 
 
 (k) Palmer's Case, 6 Co. 25 ; Muskett 
 v. Hill, Welcome v. Upton. 
 
 (I) Burrington's Case, 8 Co. 136b. 
 
 (m) Sd. Weekly y. Wildman, 1 Ld. 
 Ray. 407. ISmith. 
 
 (n) Bailey y. Stevens; Ackroyd v.
 
 SUBJECTS OF PROPERTY. 
 
 However, it seems to be clear that an easement must have 
 a certain definite area, and that therefore I cannot claim 
 even under an express grant all such currents of air as may 
 come from a given direction over my neighbour's land, or all 
 such water as may percolate to me under his soil, (a) it being 
 considered contrary to public policy to allow a landowner 
 to deprive himself so completely of the power of rendering 
 his property productive to himself and to the community, 
 as by conferring such a right he would do. The right 
 to light may seem to be an exception to this rule, but it is 
 restricted by the size and position of the window through 
 which the light has access, and the owner of the servient 
 tenement may erect buildings, &c, at some distance from 
 the window, provided these do not diminish the supply of 
 light below that which has been wont to be enjoyed; 
 and piobably, if the question were to arise, the law as 
 to the right to currents of air and the right to percolation 
 of water would be held to be founded on similar prin- 
 ciples (b.) 
 
 Easements which merely entitle one to restrict the owner 
 of adjoining land from altering its natural condition are 
 worth distinguishing from easements which entitle one to do 
 something upon the adjoining land, for, though the former 
 are less easily interrupted (and might therefore be thought 
 to be less easily acquired in any other way than by express 
 and actual grant), they are nevertheless more favoured in 
 law on account of the damage which would accrue to the 
 owner of the alleged dominant tenement if he were held not 
 to be entitled to them. Some of these easements, indeed, are 
 conferred by the law itself, and are then, as we have seen, 
 not termed "easements" but "natural rights" (c.) 
 
 With respect to incorporeal personal chattels, they are 
 of two totally different kinds — those which consist in a 
 
 Distinction 
 between ease- 
 ments lying in 
 restriction and 
 easements 
 lying in user. 
 
 Kinds of incc 
 poreal persoi 
 chattels. 
 
 (a) Chasemore v. Richards, 7 H. L., (c) See the observations of James, 
 C. 349. [D. 172. L. J., in L. R. 6, Ch. 292, Supra p. 2, 
 
 (6) Bryant v. Lefever, L. R., 4 C. P. Infra p. 13.
 
 10 
 
 SUBJECTS OF PROPERTY. 
 
 Advowsons 
 and peculiar 
 chattel interest 
 in them. 
 
 Seignories 
 described. 
 
 Lord's interest 
 in copyhold. 
 
 right to a periodical render, and differ no otherwise from a 
 rent than in the fact that they are not charged on real 
 estate, and those which consist of right to receive some- 
 thing once for all. To the former class belong personal 
 Annuities and Stocks and Shares. To the latter, Debts, 
 Money secured by Policies of Insurance, &c. 
 
 An adyowson, or right to present to an ecclesiastical 
 benefice, is worth mentioning, because it admits of a pecu- 
 liar kind of chattel interest ; for if the next presentation or 
 any definite number of presentations be dealt with apart 
 from the rest of the advowson, they are deemed to be a 
 chattel real by analogy to a term of years (a.) 
 
 This would be all I should think it necessary to say by 
 way of defining the different kinds of property if it were 
 not that the relics of the feudal system still remaining with 
 us make necessary a short reference to another incorporeal 
 hereditament — the Seignory. It is well known that for the 
 purpose of maintaining the military organization which 
 then prevailed, all the land in England was deemed to 
 belong to the king, and was held of him subject to a rent 
 or to some other obligation (such as that of providing 
 soldiers,) but yet was held for an estate descendible to the 
 heks, and durable (unless forfeited) so long as any heirs 
 (lineal or collateral) remained. In early times those who 
 thus held of the King used themselves to enfeoff others on 
 similar terms, and the right to crown or quit rent, and the 
 other services which those who were thus enfeoffed were 
 bound to render, together with the contingent right to have 
 the land again upon a failure of heirs, is termed a seignory. 
 The rights of the lord of a copyhold are virtually a seignory ; 
 but, owing to the fact that anciently copyhold tenants 
 were serfs of their lords, the latter were deemed to be the 
 owners of the land itself as well as of the feudal rights over 
 it. These rights (as is well known) include (in general) a 
 
 («) 3 Cruise's Digest, (Ed. of 1807) 10.
 
 SUBJECTS OF PROPERTY. 11 
 
 rent, a fine on death or alienation, and the right to the 
 land in case heirs to the tenant should fail or none should 
 appear to claim the land after the tenant's death, &c, and 
 (in many manors) a heriot or beast on the death of each 
 tenant, and are subject to a right for the copyholder to 
 depasture on the waste lands of the manor his cattle 
 maintainable on the copyhold tenement, and to the obli- 
 gation not to enclose so much of the waste as would 
 materially interfere with this right.
 
 ( 12 ) 
 
 CHAPTER II. 
 
 THE CREATION AND TERMINATION OF SUBJECTS OF PROPERTY. 
 
 Corporeal 
 
 subjects. 
 
 Incorporeal 
 subjects. 
 
 Profits and 
 easements in 
 general. 
 
 How generally 
 originated — 
 By grant. 
 
 By adverse 
 enjoyment. 
 
 By tenure and 
 custom. 
 
 Respecting corporeal subjects, it is unneccessary to say 
 anything under this head. 
 
 Respecting incorporeal subjects, a few points worthy of 
 notice occur. 
 
 As to profits in prender and easements — as they consist 
 of parts of the enjoyment of landed property separate from 
 the rest, they are of course created by such separation of 
 the ownership, and terminated by reunion. 
 
 Their separation is most regularly effected by a grant 
 from the owner of the land, from which they are to be 
 detached; but as the validity of such a grant depends on 
 the same principles as the disposition of an estate in 
 property already subsisting, I will content myself by 
 referring to the chapter on such dispositions. The separ- 
 ation can also be effected by adverse enjoyment of the 
 profit or easement, in which case the law (for what reason 
 is a mystery) feigns that a grant was made ; but although 
 the rules which regulate the acquisition by adverse 
 possession of profits and easements shew some important 
 peculiarities, yet they depend upon the same principles as 
 those which regulate the acquisition by similar means of 
 subjects already subsisting, and I will therefore treat of 
 them along with these. 
 
 There are, however, some other modes in which profits 
 and easements can be acquired, and these must be 
 mentioned here: 
 
 First, then, the tenants of a manor are entitled (as part 
 of the return made to them for their rents and services) to 
 those privileges which are determined by immemorial
 
 THE CREATION AND TERMINATION OF SUBJECTS, &C. 13 
 
 custom as being those which the original pact between the 
 Lord and his tenants prescribed. These rights (the general 
 nature of which I have already explained) are to be enjoyed 
 in common with the Lord and the other tenants, and are 
 therefore called commonable rights ; and from the circum- 
 stances that they are enjoyed upon the waste it is termed 
 a " common." These privileges generally come in question 
 in the case of copyhold tenants, but are also often shared 
 by the freehold tenants of a manor. Privileges of this kind, 
 as they were conferred in consideration of tenure, cease 
 when the tenure ceases, that is when the tenement and the 
 seignory (or the copyhold tenement and its freehold) 
 become united in the same owner, which of course occurs 
 in case of enfranchisement. Such at least is the common 
 law rule, but the modern statutes which facilitate enfran- 
 chisement contain special provisions upon this head (a.) 
 
 Again, tenants for life, &c, are entitled to what are called 
 estovers or botes — that is the right to cut down and ^ incident to 
 appropriate sufficient wood growing on the tenement to 
 provide fences, agricultural implements, and repairs for 
 buildings, and sufficient wood and turf to provide fuel to 
 be burnt on the premises (b.) And these rights of course 
 terminate with the tenancy. 
 
 Again, the law confers upon every owner of land certain 
 
 rights which are of the same nature as easements, but As natura % 
 
 . t • incident to 
 
 which (in order to distinguish them from those acquired by property- 
 grant or adverse enjoyment) are not called by that name support)* 
 but are termed "natural rights" (c.) The chief of these is 
 the right to such support from the adjoining land as may 
 be sufficient to maintain in its natural state the land whose 
 owner is deemed entitled to the right (d.) Much difficulty, 
 however, has arisen from the restriction which the Courts 
 
 (a) See below. (d) Bryant v. Lefever, L. R., 4 C. P. 
 
 (b) Co. Litt., 41 b. D. 172. Angus v. Dalton, L. R.4 Q. B. 
 
 (c) See tlie obs. of James, L. J. in D. 162. 
 L. R., 6 Ch., 292.
 
 14 THE CREATION AND TERMINATION OF SUBJECTS, &C. 
 
 have placed upon this doctrine of the natural right. They 
 have held that it does not extend to such a degree of 
 support as may be necessary for the buildings which may 
 from time to time be erected on the dominant tenement. 
 The reason given for this restriction is that the Courts of 
 Law ought not, in the absence of grant and adverse enjoy- 
 ment and legislative provision, to recognize any further 
 right than a right to have one's property maintained in 
 that state in which nature gave it (a.) But it would 
 surely have been open to the Courts to hold, that as 
 nature has given land to be used for (amongst other 
 purposes) the erection of buildings, any removal by my 
 neighbour of the support necessary to maintain such build- 
 ings as I may have erected on my land must be considered 
 as an invasion of my natural right, unless such removal 
 was itself made in the use of the land for a proper purpose, 
 and even then, unless my neighbour has either himself 
 used every reasonable precaution for the maintenance of my 
 buildings, or given me authority to do so. Departure from 
 this common-sense view of the matter has led to much liti- 
 gation and many anomalies and refinements, so that in the 
 recent case of Angus v. Dalton, the Lords Justices declared 
 (b) that even to them the question presented almost insu- 
 perable difficulty. It has however been in effect determined, 
 that when buildings are first erected on land the neigh- 
 bouring occupier is entitled to dig a trench in his own land 
 for the purpose of causing them to fall, provided he does not 
 thereby remove the amount of support which would have 
 been necessary to maintain his neighbour's land supposing 
 it had been unbuilt upon ; but that (c) if he removes the 
 support which would have been necessary to support the 
 land as unbuilt upon, (a question which it must often be 
 impossible to decide with accuracy), then he must pay not 
 only the damages which would have been suffered by the 
 
 (a) See Angus v. Dalian, L. R., 4 Q. (6) p. 167. 
 
 B. D. 162. Bryant v. U-fever, L. R. 4, (c) See p. 176, sqcj. 
 
 C. P. D. 172.
 
 THE CREATION AND TERMINATION OF SUBJECTS, &C. 15 
 
 subsidence of the land if it had been unbuilt upon, but also 
 the damage occasioned by the loss of the buildings (a) ; but if 
 he neglects for twenty years to dig such trench and thereby 
 to cause the fall of the buildings, then the owner of the 
 buildings acquires a right not merely to prevent him from 
 removing their support wantonly or unreasonably, but also 
 to prevent him from removing it for any purpose however 
 necessary. And though he may excavate his land upon 
 the terms of shoring up the land on which the buildings 
 are, yet he must himself bear all the expense of this pre- 
 caution; and if the precaution should (though without any 
 fault on his part) be unsuccessful, he must pay damages in 
 the same manner as if he had never made use of it. But 
 yet, by a further refinement, this doctrine as to the 
 acquisition of the right by twenty years' enjoyment is 
 subject to exception in case it be proved that no grant could 
 have been made of the right in question until after the 
 commencement of the twenty years ; and also (according 
 to some opinions) if it be proved that no such grant was 
 made (while others maintain that no exception will be 
 made even though it be proved — not only that no such 
 grant was made, but also (b) that when the buildings were 
 about to be erected the owner (against whom the easement 
 was sought to be acquired) expressly warned the landowner 
 who was about to erect them that he must not understand 
 that he would thereby gain any right to their support. The 
 doctrine that an important right of property like this can 
 be acquired subject to be defeated by the accident that 
 some one can be produced to prove that no grant was 
 made must, if it prevail, introduce great uncertainty into 
 titles. I have entered upon the above statement of the 
 mode in which this right can be acquired to show that, 
 
 (a) Bonomi v. Backhouse, 9 H. L. C. natural state, Smilh v. Thackerah. L. R. 
 
 503. But only if this digging be such 4 C. P. 566. 
 
 as would have caused damage if the (</) The Lords Justices differed on 
 
 dominant tenement had been in its this point in Angus v. Ballon.
 
 16 THE CREATION AND TERMINATION OF SUBJECTS, &C. 
 
 (Subjacent 
 support.) 
 
 (Use of water.) 
 
 (Navigation, 
 &c.) 
 
 By implied 
 grant. — 
 (Way of 
 necessity.) 
 
 (Common of 
 vicinage.) 
 
 from its nature, it ought to be deemed a natural right, and 
 that the Courts (having once denied it that character) are 
 now anxious to retrace their steps by the aid of subtile 
 refinements. 
 
 Another natural right is that of support from subjacent 
 strata, which may occur when a landowner has granted 
 away the surface of his land while retaining the minerals 
 beneath it, (in which case the surface is entitled to a right 
 of support exactly similar to the lateral support which I 
 mentioned,) or when the owner of a house grants away the 
 upper storeys retaining the lower. 
 
 Other natural rights are those of a riparian proprietor to 
 use the water of the stream as it flows past for any purpose 
 not injurious to the other riparian proprietors, and to 
 prevent them from using it for any purpose injurious to 
 him, and to permanently take a moderate quantity of the 
 water, and to prevent others from abstracting an immoderate 
 quantity of it (a). 
 
 Another natural right, of a different character, is that of 
 the public to navigate navigable rivers (b). We may also 
 refer to their right to use highways on land. 
 
 Another right given by law (or perhaps rather implied 
 by law as intended by the parties) is the right of one to 
 whom a disposition is made of land, access to which can 
 only be obtained through other land belonging to the 
 grantor, to have a way through such other land. This is 
 technically termed a way of necessity (c.) 
 
 Another right given by law, under the name of common 
 pur cause de vicinage, is the right of adjoining owners of 
 pasture lands, so long as there is no fence dividing the 
 lands, to continue a custom of depasturing their cattle each 
 upon the other's land as well as his own (d.) 
 
 (a) Swindon W. Works v. Wilts fyc. 
 Canal Co., L. R., 7 H. L. 697. 
 
 (6) Lyon v. Fishmongers' Co., L. R., 
 1 App. Ca. 662. 
 
 (c) Pearson v. Spencer, 3 B. & S. 761 ; 
 
 Houston v. Frearson, 8 T. R. 50. 
 
 ((/) See Commrs. of Sewers y. Glasse, 
 L. R, 19 Eq. 134; Cape\. Scott, L. R., 
 Q. B. 269.
 
 " common 
 right." 
 
 THE CREATION AND TERMINATION OF SUBJECTS, &C. 17 
 
 Such are the most remarkable profits in prender and 
 easements given by law, independently of the agreement 
 of the parties ; but profits in render are also to some extent 
 thus given. This leads me to explain the distinction Distinction 
 between profits of common right and profits against f a.n& against 
 common right, the practical importance of which will appear 
 when I come to treat of the mode in which profits and 
 easements can be terminated. A profit was said to be of 
 common right when it was given by the rules of law, but 
 against common right when it originated in the agreement 
 of the parties, an agreement being of necessity in derogation 
 of the legal right, — but the incidents of tenure (such as 
 commonable rights of the tenants of a manor on the Lord's 
 waste, and the right of a Lord to rents reliefs and other 
 services, and the similar rights of an ordinary landlord) 
 were considered so necessary to the maintenance of the 
 feudal system, (which was probably at its zenith when the 
 rules founded on the distinction in question originated,) 
 that they were treated as given by law, (their exact amount 
 and other details being the only points which were regulated 
 by the agreement of the parties) (a). 
 
 The modes in which the existence of incorporeal subjects Incorporeal 
 
 is terminated is analogous to that by which they are created, terminated. 
 
 A release of them to the person liable is the most obvious ; By release. 
 
 but in addition to this, the law, for the sake of simplicity, (Tenements.) 
 
 By unity of 
 ceases to recognize as having a separate existence any ownership. 
 
 profit or easement which has once become the property of 
 
 the same owner as the land subject to it. It may indeed 
 
 be granted afresh to a stranger, but until so granted it is 
 
 as though it had never been. In case of easements 
 
 misunderstandings often arise in the application of this 
 
 doctrine from a supposition on the part of a purchaser that 
 
 he is entitled to have, or on that of a vendor that he is 
 
 entitled to retain, whatever advantages have been used in 
 
 (a) Dennett v. Pass, 1 Bing. N. C, Jtotheram v. Green, Cro. El. 593; 
 396, citing Gilbert on Rents, 151; Tyrringhams Case, 4 Co^ 36.
 
 18 THE CREATION AND TERMINATION OF SUBJECTS, &C. 
 
 (Particularly 
 on union of the 
 Lord's with 
 the tenant's 
 interest in a 
 copyhold.) 
 
 By release 
 or unity of 
 ownership as to 
 part of the 
 servient 
 tenement. 
 
 connexion with the subject of the purchase or sale while 
 it remained in the vendor's possession (a.) 
 
 Another peculiarity in the application of the doctrine of 
 the extinguishment of incorporeal tenements by unity of 
 ownership occurs in the grant of a seignory to the land- 
 owner, or in the enfranchisement of a copyhold. The 
 effect of such grant or enfranchisement (except in case of 
 enfranchisement under the Copyhold Enfranchisement 
 Acts, which contain special provisions on this subject) (b) 
 is that all the services to which the Lord was entitled, and 
 all the commonable profits to which the tenant was 
 entitled upon the waste, are alike extinguished (c). 
 
 But a more recondite doctrine still remains to be 
 disclosed, and one which was of great importance in the 
 palmy days when Coke upon Lyttleton was the chief 
 clue to guide the practitioner through the labyrinth of law, 
 and which it is necessary even now to have some 
 acquaintance with. I mean that dependent on the 
 distinction already explained between profits of common 
 right and profits against common right. It is plain that a 
 man who has made an agreement in derogation of his legal 
 rights cannot be required to give up more of these rights 
 than his agreement warrants. This proposition was 
 anciently expressed by saying that an agreement is 
 "entire," (that is constitutes an integral whole, so that the 
 liability of each party is conditional on the observance of 
 all the promises for which he has stipulated with the other). 
 This doctrine of the "entirety" of contract can scarcely be 
 said to exist at the present day. It assumes that every 
 man who makes a contract fully understands what he is to 
 
 (a) Ellis v. Manchester Carr. Co., L.R., 
 2 C. P. D. 13, (where the particular 
 easement in question was a right to 
 light,) Barlow v. Rhodes, 1 C. & M. 
 439 ; Suffieldv. Brown, 33 L.J., Ch. 249 ; 
 unless it he easements of a continuous 
 nature, Pijer v. Carter, 1 H. & N. 9 1 6, 
 (approved in Watts v. Kelson, L. K., 
 
 6 Ch., 171;) Langley v. Hammond, L. 
 
 R., 3 Ex. 168; and unless the doctrine 
 of implied (or other) representation, 
 with acts in reliance on it apply, Davies 
 V. Sear, L. R., 7 Eq. 427. 
 
 (b) 15 & 16, Vict., c. 51, s. 45, s. 
 48; 4 & 5 Vict., c. 35, s. 81, s. 82. 
 
 (c) Marsham v. Hunter, Cro. Ja. 253.
 
 the creation and termination of subjects, &c. 19 
 
 do, and inserts provisions for every possible contingency. 
 It does not take into account the imperfections of the 
 human mind; and it has therefore been found so unworkable 
 in practice, that it has been frittered away by the modern 
 doctrine of dependent and independent covenants and 
 promises, (a very different doctrine from that which passed 
 under the same name in Lord Holt's time), and its sister 
 doctrines— that some terms are not of the essence in 
 equity, and that abatement and compensation may be 
 allowed for unimportant misdescriptions, and the particular 
 applications of these doctrines under the forms of the 
 doctrines of relief against penalties and forfeitures, of 
 implied conditions, of implied covenants, and of actions 
 for the use and occupation of land, and for quantum valeat 
 and quantum meruit, (for all these are merely different 
 manifestations of the same principle, as will appear 
 further on), until there is now little if any of the ancient 
 principle remaining. But in the olden time the law 
 founded on this distinction some very important rules 
 respecting the termination of profits and easements. — If 
 the owner of a profit or easement of common right released 
 (or became entitled (a) to) part of the land out of which it 
 issued, he continued entitled to a part of the profit, &c, 
 bearing the same proportion to the whole as the value of 
 the rest of the land did to that of the whole of the land 
 originally liable. But if the owner of a rent orignating in 
 grant or devise had released from it part of the land, and 
 afterwards attempted to recover a fair share out of the rest 
 of the land, the law told him that every part of the rent, 
 including the part which he was attempting to recover, 
 was by the terms of the original grant to issue out of not 
 merely the portion of the land out of which he was 
 attempting to recover it, but also the portion which he had 
 released, and that therefore if he were to recover any part 
 
 (a) See on this subject Co. Litt., Co., L. R. 2 C. P. D. 13. 
 147a to 149b; Ellis v. Manchester Carr.
 
 20 THE CREATION AND TERMINATION OF SUBJECTS, &C. 
 
 of it, however small, out of the land remaining unreleased, 
 the occupier of that land would be entitled to contribution 
 from the owner of the part released, and this would be 
 contrary to the terms of the release and therefore could not 
 be allowed, and consequently the whole of the land must 
 be treated as discharged, and the whole of the rent-charge 
 as extinguished. And the same rule was applied even when 
 the mode in which part of the land became exonerated 
 from the rent was not by release but by unity of possession, 
 though when this was so exceptions were established 
 whenever the application of the rule would have contra- 
 vened any maxim of law, as, when the unity of ownership 
 was produced by a descent, in which case the application 
 of the rule would have contravened the maxim actus legis 
 nemini facit injuviam (a.) And the doctrine applied not 
 merely to rents but to all profits lying in render, and also 
 to profits in prender, and perhaps to easements, though I 
 am not aware of any case in which it has been applied to 
 easements, nor do they seem from their nature altogether 
 obnoxious to it. But if, for example, I have a right of pas- 
 turage on twenty acres for so many cattle as my farm will 
 feed in winter, and I release ten of these acres, I should 
 not be entitled to depasture a proportionate number of 
 cattle on the remaining ten acres (b) unless my right of 
 pasture were an incident of tenure (c.) 
 
 The doctrine however has been recently restricted by a 
 
 statute, the passing of which was secured by the late Lord 
 
 (Restriction of St. Leonards (d). By this statute a release from a rent- 
 
 St. Leonard's charge of part of the land subject to it shall not prevent 
 
 • A - Ct -) the recovery of a proportionate part of the rent-charge 
 
 from the residue of the land. But this act does not touch 
 
 the case of extinguishment by unity of possession, nor the 
 
 case of profits in prender, nor that of easements; and 
 
 (a) Exceptions were also sometimes (f) Wyalt's 8f Wild's Case, 8 Co. 78. 
 made on equitable grounds, Mosel 257. (rf) 22 & 23 Vic, c. 35, ss. 10 & 11. 
 
 (b) Rotheram v. Green, Cro. El. 593.
 
 THE CREATION AND TERMINATION OF SUBJECTS, &C. 21 
 
 besides the wording of the final clause in the section, which 
 preserves the rights of persons who are not parties to the 
 release, seems likely to give rise to some difficulty. 
 However, in all cases in which the rule still applies, I 
 think it may be got rid of by substituting for a release a 
 covenant not to distrain upon or sue in respect of the part 
 of the land desired to be exonerated, though I am aware 
 that doubts as to the safety of this course were expressed 
 in an old case (in Noy), and that in consequence convey- 
 ancers have been in the habit of considering its safety as 
 not sufficiently clear to warrant them in advising a releasor 
 who has nothing to gain by it to adopt it. The doctrine 
 has not been applied to the case of releasing part of the 
 land from a mortgage; and incumbrances of this nature 
 are really not within the scope of the rule. 
 
 Incorporeal chattels, when they are not (like annuities) (Chattels)— 
 of a continuing nature, can, of course, be terminated by 
 satisfaction or payment ; and it was formerly the law that 
 satisfaction of a debt by a surety extinguished it as 
 completely as a satisfaction by the debtor himself, and 
 therefore that the surety, after satisfying a debt due on bond, 
 could not derive any advantage from having the bond 
 assigned to him; but this has been corrected by the 
 Mercantile Law Amendment Act (a.) 
 
 When two persons are co-debtors, and the creditor By release of 
 
 co-debtor, 
 releases one of them, the other is held to be also exonerated 
 
 for a reason similar (b) to that giving rise to the doctrine 
 
 that a rent is extinguished by a release of part of the land ; 
 
 but, as regards debts at least, the doctrine does not extend 
 
 to cases in which a covenant not to sue is substituted for a 
 
 release, but on the contrary a release expressly reserving the 
 
 right to sue a co-debtor is construed as a covenant not to 
 
 sue (c), in order that the provision reserving such right may 
 
 (a) 19 & 20 Vic, c. 97, s. 5. (g) (/')• an< l as to &e general principle 
 
 (6) Addison Contr., 977 (&.) involved see Ford v. Beech, 11 Q. B. 
 
 (c) See amongst numerous other 871, and in equity 7 Hare 208. 
 cases those referred to in Addison, 977
 
 22 THE CREATION AND TERMINATION OF SUBJECTS, &C. 
 
 be effectual. On the other hand, a release by one of two 
 joint creditors is held to bar the other (a), though there 
 is no similar doctrine applicable (b) to the case of real 
 estate. And although none of the textbooks state the 
 reason of this destruction, I succeeded in tracing it out in 
 an old case, in which it is laid down that it is because the 
 procedure which was in force when the rule originated 
 required that when two persons were jointly entitled to a 
 right of action, whichever brought the action should bring 
 it in the name of both, and if the defendant pleaded a 
 release by one, and the subject sought to be recovered was 
 real estate, the other party might have been summoned 
 and severed, after which the action might have proceeded 
 in the name of the remaining plaintiff alone, but no such 
 severance was allowed in the case of purely personal action, 
 and consequently the plea of release by any plaintiff was a 
 bar to such an action. At present the Courts endeavourto 
 evade this rule unless the co-plaintiffs are executors or 
 administrators, in which case, as one has authority (c) to 
 deal with the assets without the concurrence of the rest, 
 the release of a debt by one works an effectual extinguish- 
 ment of it. I do not enter here upon the peculiar privileges 
 of sureties, which do not strictly belong to the subject 
 matter of this work. 
 
 (a) Arton v. Booth. 4 Moo. 192; some curious doctrine was laid down. 
 
 Crook v. Stephens, 5 Bing , N C. 688, (b) 47 Ass. 3, 4, Stitz v.Furlie, in B. 
 
 Viner Ab., Release (D. a ;) Middle- R.), Tr. 4 Ja. I. 
 
 more v. Goodale, Cro. Car. 503, where (c) Williams on Executors, 885 (c.)
 
 ( 23 ) 
 
 CHAPTER III. 
 
 THE COMMENCEMENT OF TITLE. 
 
 The commencement of the title to property is a totally How a new or 
 distinct thing, both from the commencement of the subject commences 
 of property itself, and from the transmission or disposition 
 of the ownership. Land has existed ever since the world 
 was, but some person may find it unoccupied and take pos- 
 session of it, or may find it occupied and by force or fraud 
 take it to himself. In such cases his title to it commences. 
 And in the same way if land is burthened with a profit 
 or easement, a man who is not really entitled to the latter 
 may nevertheless claim to be so, and (by usurping the enjoy- 
 ment) may commence a new title to it. And again, a man 
 may take possession of one of the advantages derivable from 
 the occupation of land, and may thus sever it from the rest, 
 and at once erect it into a profit or easement and commence 
 a new title thereto, in which case not only a new title but 
 a new subject of property commences. It is however a 
 great mistake to treat (as Gains does) a gift as a means 
 of commencing a new ownership. A gift merely disposes 
 to another of an ownership which already exists. 
 
 Although the acquisition of property hitherto unoccupied jj ow t jj e r] vht- 
 
 affords a convenient starting point in the investigation of a f ul tlt , le 1S 
 
 ° _ barred, 
 
 title, yet the forcible or fraudulent acquisition of property General 
 
 which rightfully belonged to another could never exonerate priDcl P e - 
 
 us from investigating its previous history, with the view of 
 
 ascertaining who is lawfully entitled to it, if it were not 
 
 that the law (from a desire that the person who appears to 
 
 be owner of property should be really so, and that persons 
 
 who deal with him as being what he appears to be should 
 
 not be disappointed, and also, probably, as regards those
 
 24 THE COMMENCEMENT OF TITLE. 
 
 rules of law which were founded in the Middle Ages from a 
 consideration of the disturbance to the public peace which 
 was likely to result from an attempt to wrest the possession 
 of land from one who had obtained it, and from a desire 
 also to prevent rights being called in question after the lapse 
 of so long a period from their first origin that it may be 
 •difficult to rebut evidence which maybe brought forward 
 to make a prima facie case against them), has in most cases 
 provided that after property has been enjoyed for a con- 
 siderable period, the right of those who are really entitled 
 to it shall be taken away, while, in the meantime, the 
 wrongful claimant having, as we have seen, commenced a 
 new title, is protected in the enjoyment of the property 
 against all but those who have really the right to it, and 
 against any forcible entry even on their part. 
 
 Diversity of And here indeed we come to a mass of technicality and 
 
 the doctrines 1 • i_ ■- i_ i_ i j j.i i • i j 
 
 prevalimr on anomaly which has perplexed even the most accomplished 
 
 this head. Judges. If a comprehensive system of Land Registry were 
 
 adopted, the Legislature might (probably without any evil 
 
 result) enact that no one should be entitled to acquire 
 
 any kind of property by adverse possession. In the absence 
 
 of such a system a simple definite rule ought to be laid 
 
 down and adhered to. But the state in which the law 
 
 actually exists is this — The rights of the Crown are 
 
 governed by one set of enactments (a), those of ecclesiastical 
 
 corporations sole (b) by another — those of the rest by 
 
 public by others dependent on the nature of the subject 
 
 matter. For land and profits in render fall under one set 
 
 (a) 9 Geo. 3, c. 16, s. 1 as to here- Vic., c. 62. 
 ditaments other than liberties or fran- (6) As to tithes, 53 Geo. 3, c. 127, 
 
 chises, (limit 60 years.) Extended to s. 5; 2 & 3 Wm. 4, c. 100. As to 
 
 the Duchy of Cornwall by the 23 & actions by Bishops to recover benefices, 
 
 24 Vic, c. 54, s. !; and as to certain 6 & 7 Vic, c. 54, s. 3. Actions by 
 
 cases 7 & 8 Vic, c 105, s. 71, sqq. — spiritual or eleemosynary corporations 
 
 especially 71-87. Certain technicalities sole to recover hereditaments such as 
 
 as to the Crown being entitled to a below referred to, 3 & 4 Win. 4, c. 27, 
 
 fresh right when the lands have been s. 29. 
 in charge are removed by 24 & 25,
 
 THE COMMENCEMENT OF TITLE. 
 
 25 
 
 of rules (a), advowsons under another (b), profits in prender 
 under another (c), easements lying in restriction under 
 another (d), and easements lying in user under another (e) ; 
 and even any one of these systems taken by itself is not 
 homogenous. 
 The chief enactment on the subject is the Statute of 
 Limitations of 3 and 4 W. IV — an Act which is probably 
 the worst drawn of all our badly drawn Acts of Parliament, 
 and forms a marked contrast in this respect to the almost 
 contemporaneous statute for the abolition of fines and 
 recoveries. 
 
 The Statute of Limitations begins by defining the 
 subjects to which it applies, namely, corporeal heredit- 
 aments, profits in render (except tolls and the like), and 
 tithes (other than tithes belonging to a spiritual or 
 eleemosynary corporation sole). 
 
 In subsequent (though not in the immediately following) 
 sections it gives some explanations as to the mode in which 
 the new title may be acquired. Previously to this Act 
 there were several cases in which the law presumed that a 
 person holding possession of property of which he was not 
 owner did so on the owner's behalf, and this presumption 
 could only be rebutted by evidence that he had turned the 
 true owner out or held possession in defiance of him (/). 
 These cases were — where one of several co-owners held 
 possession of the entirety (g) — where the person holding 
 the possession was a near relative of the owner (h) — and 
 where he was a tenant of the owner and merely holding 
 
 By the 
 
 Statute of 
 Limitations. 
 
 Subjects to 
 which it 
 applies. 
 
 When time 
 begins to run. 
 (In special 
 cases.) 
 
 (a) As to corporeal hereditaments, 
 tithes not belonging to a spiritual or 
 eleemosynary corporation sole, rents, 
 heriots, services or suits for which a 
 distress may be made, annuities and 
 periodical payments charged on land 
 (except moduses and compositions 
 belonging to a spiritual or eleemosynary 
 corporation sole), 3 & 4 W. IV, c. 27, 
 s. 1—27, 34 sqq.- 37 & 38 Vic, c. 57; 
 32 H. VIII, c. 2; 21 Jac. I, c. 16. 
 
 (6) 6 & 7 Vic. 54, s. 3, 3 & 4 W. IV, 
 C. 27, s. 31 to 34 sqq. 
 
 (c) 2 & 3 W. IV, c. 71, s. 1, 4, sqq. 
 
 (d) 2 & 3 W. IV, c. 71, s. 3, 4, sqq. 
 
 (e) 2 & 3 W. IV, c. 71, s. 2, 4, sqq. 
 (/) See Doe v.Jauncy, 8 Carr.&P. 99. 
 (<7) Fairclaim v. Shacklelon, 2 Bla. 
 
 690; Doe v. Phillips, 3 B. & Ad. 753. 
 (A) Doe v. Harborough, 1 N. & M. 
 422; Doe v. Grubb, 10 B. & C. 816.
 
 26 THE COMMENCEMENT OF TITLE. 
 
 over after the expiration of his tenancy (a). The statute 
 abolishes this presumption (b) ; and the fact that it does so 
 is commonly expressed by saying that it has abolished the 
 doctrine of non-adverse possession. But the statute goes 
 further — It directs, in effect, that a rightful possession 
 shall be deemed a wrongful one in certain cases, for a 
 tenant at will after occupying for a year is to be treated as 
 thenceforward holding the property for his own benefit 
 (c), and a tenant from year to year after occupying for a 
 like period and discontinuing the payment of rent is to be 
 similarly treated unless he resume such payment (d). The 
 statute also has the effect of providing that a mortgagor 
 remaining in possession after the time appointed for 
 payment of the mortgage debt is to be treated as holding 
 adversely to the mortgagee, unless he gives him a written 
 acknowledgment (e) or makes a payment on account, (/) 
 and even in that case is to be treated as so holding from 
 the time when such acknowledgment or payment (or the 
 latest of such acknowledgments or payments if more than 
 one) is given (g); and that a mortgagee who enters into 
 possession is to betreated as holding adversely to the mort- 
 gagor, from the time when he so enters unless he gives 
 him a written acknowledgment and in that case is to be 
 treated as so holding from the time when such acknow- 
 ledgment (or the latest of such acknowledgments if more 
 than one) is given. And a trust for sale for the purpose of 
 securing money is treated as a mortgage within this rule (h). 
 Legacies, whether or not charged upon land, and trusts 
 (as well as charges) for payment of legacies, have been also 
 brought by statutory enactment under similar regulations 
 (i). In case of a concealed fraud, the statutory period 
 
 (a) See Snigge v. Shirton, do. Ja. (/) 7 W. TV & 1 Vic, c. 28. 
 
 199; Smith v. King, 16 Ex. 283. (g) 3 & 4 W. IV, c. 27, s. 28; 37 & 
 
 (6) 3 & 4 W. 4. c. 27, s. 12, 13, 8, 7. 38 Vic., c. 52, s. 7. 
 
 (c) s. 7. (/i) Locking v. Parker, L.R. 8, Cli. 30. 
 
 (rf) s. 8. (*) 3 & 4 W. IV, c. 27, s. 40; 37 & 
 
 (e) s. 14; Doev. Williams, 5 Ad. & 38 Vic, c. 57, s. 8 10. 
 Ell. 291.
 
 THE COMMENCEMENT OF TITLE. 27 
 
 does not begin to run until discovery of the fraud (a). Such 
 
 are the provisions in the statutes as to when (in special 
 
 cases) the adverse possession shall be deemed to have 
 
 commenced, but they also contain clauses by which the (In general.) 
 
 framer endeavours to define the exact moment when in 
 
 general the possession becomes adverse, and these have 
 
 given rise to much perplexity (b). The statute contains 
 
 words adapted to express that when the owner of land has 
 
 abandoned the possession of it, and after an interval 
 
 another person has entered, the latter should be treated as . 
 
 if he had acquired the property at the moment when the 
 
 former left it, or at least should have to remain in possession 
 
 for a period shorter by that interval of vacancy than would 
 
 have been otherwise necessary to enable him to acquire 
 
 the right (c); but this construction has not been adopted 
 
 (d). It also provides for cases in which rent is wrongfully 
 
 received or withheld. If the rival owner be dead when the 
 
 adverse possession commences, and the estate in dispute 
 
 be a chattel interest', though there be no executor, and no 
 
 administrator have been appointed at the commencement of 
 
 the adverse possession, the period will run from the death, 
 
 and not as under former legislation, from the time of the 
 
 appointment of the administrator (e). In case of forfeiture 
 
 of a lease by breach of condition, the tenant's possession is 
 
 adverse to the landlord's right to enter for the forfeiture 
 
 from the moment when such forfeiture occured, but is not 
 
 adverse to his right to enter in reversion until the lease has 
 
 terminated (/). The law respecting the commencement of 
 
 adverse possession on the part of a person who has 
 
 obtained a void or voidable lease has recently received 
 
 elucidation in the House of Lords (g). 
 
 (a) 3 & 4 W. IV, c. 27, s. 26. v. Sheppard, 19 W. R. 253. 
 
 (6) 3 & 4, W. IV, c. 27, s. 3, 4, 5, 6. (e) 3 & 4 Wm. IV, c. 27, s. 6. 
 
 (O s. 3 a. (f) s. 4. 
 
 (d) Smith v. Lloyd, 9 Ex. 562; Mc. (<j) Governors of Magdalen Hospital 
 
 Donnellv. Mc. Kinty, 10 Ir., L. R. 514; v. Knolts, 27 W. R. 602, rvg. S. C, L. R. 
 
 Rimingtou v. Canon, 12 C. B. 1 ; Howlin 8 Cli. D. 709, 5 Cli. D. 175.
 
 28 
 
 THE COMMENCEMENT OF TITLE. 
 
 How long 
 time must run. 
 
 Right as ■well 
 as remedy 
 taken away. 
 
 Regular period. 
 
 Periods in 
 
 exceptional 
 
 cases. 
 
 Exceptions to 
 the whole 
 statute. 
 
 Supposing however that the adverse possession has 
 commenced, the question arises how long a period must 
 elapse before the right of the true owner is taken away. 
 Before the statute it was a maxim of Law that jus moritur 
 mtuquam. The power of recovering possession was taken 
 away; but if the property got back into the possession of 
 the former owner, he held it in his old right; and great 
 perplexity was thus introduced into titles. But the 
 enactment of 3 & 4 Wm. IV (a) takes away the right at the 
 same moment with the remedy; and if the owner after his 
 right has been barred were again to acquire the property, 
 he would not be remitted, but a conveyance to him from 
 the adverse claimant (now become legal owner) would be 
 necessary. The period which must elapse before the right 
 is barred is twelve years, (b) except that in case of an 
 advowson the period is 100 years, (c) when the three 
 incumbencies which immediately follow the commencement 
 of the adverse possession exceed 100 years — is three 
 incumbencies when they exceed sixty but not 100 years — 
 and is sixty years when they amount to less than that 
 period (d); — and except that when the subject is not an 
 advowson, and the question does not arise between 
 mortgagor and mortgagee, and the rightful owner is under 
 disability at the commencement of the period, he is allowed 
 six years from the termination of his disabilities unless the 
 whole period as thus extended exceed thirty years (e). If 
 he once becomes free from disability he cannot take 
 advantage of a second disability ensuing, after however 
 short an interval (/). All the provisions of the statute of 
 limitations are subject to exception in case of express trusts 
 
 (a) 3 & 4 W. IV, c. 27, s. 34. (c) 37 & 38 Vic , c. 57, s. 3 5. 
 
 (6) 37 & 38 Vic. c. 57, s. 1 ; only (/) See as to successive disabilities 
 
 six from the termination of a previous in different persons 3 & 4 W. IV, c. 27, 
 
 particular estate if the occupier of such s. 18; see as to successive disabilities 
 
 particular estate was himself barred, s. 2. in the same person without interval, 
 
 (c) 3 & 4 W. IV, c. 27, s. 33. Burrows v. Ellison, L. R. 6 Ex. 128. 
 
 (d) 3 & 4 W. IV, c. 27, s 30 31.
 
 THE COMMENCEMENT OF TITLE. 
 
 29 
 
 (not being trusts for payment of money out of land (a), nor 
 trusts for sale to secure money, and thus answer the 
 purpose of a mortgage (b). 
 
 Such being the law of limitation as to corporeal and 
 certain incorporeal hereditaments, we pass on to find still 
 greater technicalities prevailing in the law relative to 
 profits in prender and easements. 
 
 We have seen that the public in general, or a fluctuating 
 section of the public, cannot acquire a profit in prender. 
 They may however acquire an easement, (or at least a 
 right to which the term "easement" would be applied if it 
 belonged to a private individual), but only if immemorial 
 user be proved (c). 
 
 In the case of a claim made by a private individual to a 
 profit or easement, or to a right to toll or the like, it is the 
 general rule that he is entitled to it if he can prove that he 
 or those under whom he claims have enjoyed it from and 
 for some time after the coronation of Richard I, (d) for 
 from proof of such enjoyment the law will infer that it was 
 rightful and that it originated in a grant. But the claim is 
 taken out of this rule if it be proved that at any time since 
 that period there has been an interruption in the right. It 
 is not necessary that the enjoyment should have been 
 uninterrupted ; but if the right have been interrupted — that 
 is if the profit or easement have ever been released, (or 
 what is the same thing belonged to the same person as the 
 servient tenement), the claim cannot be maintained. For 
 example, if a right of way be claimed, though it may be 
 proved that it was enjoyed from and since the coronation 
 of Richard I (e); yet if at any time during that long period a 
 
 (a) 37 & 38 Vic, c. 57, s. 10. 
 
 (b) s. 25. 
 
 (e) Lord Rivers v. Adams, L. R. 3 
 Ex. D. 361; Austin v. Amhurst, L R. 
 7 Ch. D. 689. 
 
 (d) Hall v. Nottingham, L. R. 1 Ex. 
 D. 1. 
 
 (e) See on these points Shelford, R. 
 P. 29, and the following recent cases — 
 
 Bryant v. Foot, L. R., 3 Q. B. 497; 
 Lawrence v. Hitch, L. R., 3 Q. B. 521 ; 
 Angus v. Dalton, L. R., 4 Q. B. D. 162. 
 As the points here stated are well 
 known, I do not think it necessary to 
 refer to any further authority for them, 
 my object being merely to state them 
 with simplicity and clearness. 
 
 By prescrip- 
 tion. 
 
 What advan- 
 tage in 
 
 another's land 
 the public, &c. 
 may have. 
 
 Prescription a 
 common law 
 explained.
 
 30 
 
 THE COMMENCEMENT OF TITLE. 
 
 By delay. 
 
 Especially in 
 
 enforcing 
 
 contract. 
 
 person who was entitled to enjoy it was himself the owner 
 of the land over which it was to be enjoyed, (and not 
 merely entitled to the occupation of that land for a 
 terminable period), the claim cannot be maintained. But 
 in practice it is not possible to prove that enjoyment has 
 commenced before or at the coronation of Richard I, 
 and therefore the law accepts proof that the enjoyment 
 has existed for twenty (in some cases thirty) (a) years before 
 the suit as raising a presumption that the right has existed 
 ever since that remote time. This presumption can be 
 rebutted by evidence that the enjoyment commenced at a 
 later time, or by shewing, from a consideration of the 
 nature of the advantage claimed, that it must have so 
 commenced, as when what is claimed is a right to support 
 for a house which house it is evident is not so old as the 
 time of Richard I, (b) or where the subject of claim is a 
 right to receive a fee or toll of an amount which (having 
 regard to the then value of money) cannot be reasonably 
 supposed to have been payable in the time of Richard 
 I (c). And of course even if the presumption be not 
 rebutted, yet a proof of unity of ownership would be as 
 fatal to a claim resting on the presumption that the enjoyment 
 had commenced before Richard I's time as to a claim 
 resting on a proof that it had. Mere delay (independently 
 of any statutory enactment) in many cases deprives a party 
 of specific (or equitable) relief (d), and deprives a party who 
 has not the legal estate of his right to the beneficial 
 interest (e). This is particularly the case when the delay 
 is accompanied by conduct calculated to lead the other 
 party to suppose that no action will be taken. In an action 
 for specific performance it is necessary (as Lord Alvanley 
 
 (a) 2 & 3 Wm. IV, c. 71, s. 6. 
 
 (b) Angus v. Dallon, L. R., 4 Q. B. 
 D. 162. 
 
 (c) Bryant v Foot, L. R., 3 Q. B. 497, 
 ■which is scarcely reconcileable with 
 Lawrence v. Hitch, ib. 521. 
 
 (rf) Mills v. Hayivard, L. R., 6 Ch. D. 
 196; Lehman v. Mc. Arthur, L. R.,3 C. 
 D. 496. As to delay before knowledge 
 of a fraud, Browne v. Mc, Clintock, L. 
 R., 6 H. L. 4^56. 
 
 (e) Turner v. Collins, L.R., 7 Ch. 329.
 
 THE COMMENCEMENT OF TITLE. 
 
 said) that the plaintiff should shew himself "ready — 
 desirous — prompt — eager." (a) But if he has obtained pos- (Unless in 
 session of property which he was to acquire under the P ossession ) 
 contract, delay in suing for conveyance is allowed (p.) 
 
 Another ground on which a claim to a profit in prender, By the pre- 
 
 scriRiion let 
 
 or an easement lying in user, may be rested is the Pre- (Generally.) 
 
 scription Act — for if the profit have been enjoyed (c) for 
 
 thirty or the easement for twenty (d) years, exclusive of the 
 
 time when the person entitled to dispute the claim was a 
 
 life tenant (e), and if it be proved that the enjoyment was 
 
 "as of right" (/), (that is neither forcible, secret, nor by 
 
 request), and be not proved that it was interrupted at any 
 
 time within the period of thirty (or twenty years) next 
 
 preceding the action, or (if it was so interrupted) be at least 
 
 shown that the interruption was not acquiesced in for a 
 
 year (g), the enjoyment, not the right, being that which 
 
 under this enactment must not have been interrupted) (h), 
 
 the law will secure the adverse claimant, and establish 
 
 him as owner of the profit or easement. 
 
 As regards easements lying in restriction, special pro- 
 vision is made by the Prescription Act for the case of light (As to light.) 
 (/). If the occupier or successive occupiers of a building 
 have a window, and have used the light coming through it 
 for twenty years, the adjoining landowner becomes dis- 
 entitled to so build on his own land as to block up the 
 window or diminish the supply of light used, unless he can 
 show that the enjoyment originated under some writing (J). 
 
 (a) Milward v. E. Thatiet, 5 V. 720 n. 
 
 (6) Shepherd v. Walker, L. R., 20 Eq. 
 659, (that is supposing the possession 
 was referrihle to the contract, Miller 
 v. Haywood, L. R., 6 Ch. D. 196.) 
 
 (c) 2 & 3W. IV, c. 71, s. 1. 
 
 (d) 2 & 3 W. IV, c. 71, s. 2. It would 
 seem from Aynsley v. Glover, L. R., 10 
 Ch. Ap. 283. 
 
 (e)2 & 3 W. IV., c. 71, s. 7. 
 
 (/) s. 5, Staffordshire Canal Compy. v. 
 
 Birmingham Canal Compy., L. R., 1 H. 
 
 L. 278; Mason v. Shrewsbury fy C. Co., 
 L. R., 6 Q. B. 584. 
 
 (g) s. 4, Angus v. Dallon, L. R., 4 Q. 
 B. D. 162. 
 
 (ft) Carr v. Foster, 3 Q B. 581; 
 Aynsley v. Glover, LR, 10 Ch Ap. 283. 
 
 (i) s 3. But the Common Law 
 Prescription continues in force even as 
 regards light, Aynsley v. Glover, L. R., 
 10 Ch. Ap 283. 
 
 (j) s. 3, fin, Moore v. Hall, 47 L. 
 J. Ch. 334.
 
 32 
 
 THE COMMENCEMENT OF TITLE. 
 
 By non-exist- 
 ing grant. 
 (As to other 
 negative 
 easements.) 
 
 By occupancy 
 — an instance 
 of it abolished. 
 
 Even other negative easements are not incapable of 
 being acquired, although it be proved that they were 
 united in ownership with the land at some time since the 
 Coronation of Richard I. If such an easement has been 
 enjoyed twenty years, the law will (as we have already seen) 
 generally treat it as valid (a). 
 
 One instance in which a terminable interest could for- 
 merly be acquired by occupancy no longer exists. I mean 
 the case of the death intestate of a man holding an estate 
 for the life of another which had been conveyed or devised 
 to him without mention of his heirs, or the death intestate, 
 and without heirs of a man holding such an estate which 
 had been conveyed or devised to him "and his heirs." In 
 these cases such estates now devolve like personal property 
 
 (a) Supra p. 15, Angus v. Dalton, L. 
 R..4Q. B. D. 162. 
 
 (6) 7 W. IV & 1 Vic, c. 26, s. 6.
 
 ( 33 ) 
 
 CHAPTER IV. 
 
 DEVOLUTION OF CHATTELS ON DEATH. 
 
 When the deceased was entitled jointly with another Devolution of 
 
 a joint estate, 
 person, the latter succeeds to the whole; and the rules 
 
 which I am about to state must be understood as applying 
 only where the deceased was entitled either solely or in 
 some other mode of co-ownership than that which is techni- 
 cally known as joint tenancy. When we come however 
 to enquire what "joint" tenancy is, and in what respects 
 it differs from other forms of co-ownership, we are driven to 
 confess that the term "joint tenancy" is simply used to 
 indicate the rule of law that an estate in co-ownership, 
 created by a disposition which does not state that the 
 parties are to hold in distinct shares, will, on the death of 
 any co-owner, pass to the survivors. I have endeavoured to 
 make in the note a sound selection of the authorities relating 
 to this doctrine [i] (a). 
 
 The most intelligible branch of the law relative to Devolution of 
 succession (and that which I shall first discuss, and to 
 which the law respecting other kinds of property will 
 
 [i] A marked improvement lias been made in this branch of the law by the 
 New York Code, s. 179. 
 
 (a) Reynolds t. Bowtey, L. R., 2 Q. unless enrolled before death, Cro. Jac. 
 
 B. 474. 52; but a surrender of copyhold suffi- 
 
 See as to what creates joint ten- cieut without admittance, Porter v. 
 
 ancy in the beneficial estate, Aveling Porter, Cro. Jac. 100; not severed by 
 
 v.Knipe, 19Vez. 441; between mother marriage of a female, Armstrong v. 
 
 and children, Newilt v. Newill, L. R., 7 Armstrong, L. R., 7 Eq. 518; as to ten- 
 
 Ch. 253; Coombe v. Hughes, L. R., 14 ancy by entireties which is a kind of 
 
 Eq. 415; by disseizin, Ward v. Ward, joint-tenancy existing between husband 
 
 L. R., 6 Ch. 789. and wife, Green v. King, 2 Bla 1211; 
 
 As to what severs joint-tenancy: In as to the nature of a joint-tenant's 
 
 equity, Brown v. Raindle, 3 Vez. J. 257; estate with reference to order and dis- 
 
 by purchase of a reversion, Wescot's position clauses, see Reynolds v. Bowley, 
 
 Case, 2 Co. 60b., Ford v. Grey, 6 Mod. L. R., 2 Q. B. 474; as to survivorship 
 
 45, Bellinghamv.Alsop, Cro.Ja.5 2 ;a bar- in case of partnership, Anon. 1 1, Mod. 
 
 gain & sale of freehold ineffectual to sever 223.
 
 34 DEVOLUTION OF CHATTELS ON DEATH. 
 
 probably be assimilated) is the law which regulates the 
 devolution of chattels whether corporeal or incorporeal, 
 excepting annuities limited to the heirs, but including many 
 kinds of annuities with respect to which Acls of Parliament 
 have declared that they are to devolve like chattels, and 
 including terms of years and other chattel interests in 
 tenements. — In these the beneficial ownership devolves 
 upon the relatives of the deceased ; but certain powers of 
 disposition (and the legal estate the precise nature of which 
 I will explain in the chapter on priorities) devolve to those 
 whom he has appointed (a) executors, or failing such to 
 the person whom the law appoints to be administrator (b). 
 Beneficial As to the beneficial interest. — If the deceased leave a 
 
 next e of kin. * w ^ e anc * issue, the wife takes one-third (c). If he leave a 
 wife but no issue, the wife takes a half (d). If the deceased 
 leave a husband, he takes the whole (e) [i]. 
 
 The estate, except such parts (if any) as a wife or 
 husband would under the above rules be entitled to, 
 devolves as follows: 
 
 If the deceased leave children or remoter descendants it 
 passes to them, except those among them whose parents 
 also survive (/) ; and they take equally, except that when 
 issue in different degrees of descent (such as children and 
 grandchildren) are to share, those who stand in the remoter 
 degrees take only what their deceased parents would have 
 taken if alive (g). If he leave no issue but leave a father, 
 the father takes all (h). If he leave no issue nor father, 
 
 [i] A judicial separation is an express exception to this by 20 & 2 1 Vic, c. 85, 
 s. 25, and of course either judicial separation or divorce are implied exceptions 
 to all these rules. 
 
 (a) Even by implication, Goods of being (in each case) per stripes however 
 Punehard, L. R., 2 P. & M. 369. remote the degree of descent, re Ross's 
 
 (b) 20 & 21 Vic, C 77, s. 73. trusls, L. R., 13 Eq., 285, overruling the 
 
 (c) 22 & 23 Car. 2, c. 10, s. 5. doctrine in Williams on Exors, 1385 
 
 (d) s. 6. (6) (c) ; advancements by a father to 
 
 (e) 29 Car. 2, C. 3, 8. 25, Elliott v. be brought into hotchpot, s. 5, Hatfield 
 Collier, 1 Vez. Sr. 15, Humphrey v. v. Minet, L. R., 8 Ch. D. 136; except 
 Bullen, 1 Atk. 458. advancements to the heir, s. 5, Wms.', 
 
 (/) 22 & 23 Car. 2, c. 10, s. 5, 7. 1386 to 1392. 
 
 (g) The division among each class (A) Blackboroughv. Davis, 1 P.W. 51.
 
 DEVOLUTION OF CHATTELS ON DEATH. 35 
 
 but leave mother, brother, or sister, the mother, brothers, 
 and sisters take equally, the mother (a) not taking more nor 
 less than a single brother or sister, and half-brothers and 
 half-sisters being reckoned as equally near with full 
 brothers and full sisters (b), and the children (but not 
 the grandchildren nor remoter descendants) of deceased 
 brothers and sisters being entitled to the share which their 
 parents would have taken if alive (c). 
 
 If he leave none of the above relations, those persons 
 who (surviving him) were at the moment of his death most 
 nearly of kin to him (d) according to the rules of the 
 Roman law (e) (which reckons step by step up to the 
 common ancestor and down again) are entitled and in 
 equal shares if more than one (/). But if any of those who 
 would have occupied this position should die before the 
 intestate and leave issue, that issue may not share with 
 those who are equally near of kin with their parent so dying. 
 But if all who were equally near of kin with him have also 
 died in the intestate's lifetime, so that no nearer kin than 
 such issue are surviving, such issue may take. 
 
 If the intestate leave no legitimate relations, the Crown 
 takes all (g) except (when he leaves a widow or widower) 
 so much as such widow or widower may be entitled to. 
 
 If the Deceased by a testamentary instrument appoint an Legal estate, 
 executor, and such executor either prove the will or act in p ''^ & c 
 the administration (A), he is entrusted with the winding up 
 of the testator's affairs. But if, before acting or proving, he 
 renounce the office, or if no executor be appointed, the 
 Court will appoint a suitable person as administrator (i). 
 As a general rule, the person who has the largest beneficial 
 (J) interest in the estate of the intestate is appointed 
 
 (a) I Jac.II,c. 17, s.7;Wms., 1393-4. (g) Wins.' Exors ,1401 (r) (s). 
 
 (6) Watts v. Crook, Show P. C. 103. (A) Brookes v. Haynes, L. R., 6 Eq.25 ; 
 
 (c) 22 & 23 Car. 2, c. 10, s. 7. Goods of Gibson, L. R., 1 P. & M. 105. 
 
 (/) Wms.'Exors., 1397, (*)(«/)(*) (a). (i) 20 & 21 Vic., c. 77, s. 73. 
 
 (e) Wins'. Exors, 403 (d) 405 (*). (;') Wrns'. Exors., 403 (6) 398 (c). 
 CO Wms.' Exors., 1397 ,(*) (y) (*) («>
 
 36 
 
 DEVOLUTION OF CHATTELS ON DEATH. 
 
 Limited ad- 
 ministrations. 
 
 Devolution of 
 executorship, 
 &c. 
 
 Liability of 
 executor, &c. 
 
 administrator; and it therefore often happens that when 
 the estate is insolvent, a creditor is appointed (a). When, 
 however, several persons are interested, the Court 
 generally inclines to commit the administration to one 
 only (Z>), and rules have been laid down prescribing who, 
 amongst several claimants, is to be preferred (c). 
 
 In addition to ordinary administrations, there are also 
 limited administrations granted whether an executor exists 
 or not, such as an administratorship durante minor e cetate (d), 
 granted when the executor or the person entitled to be 
 appointed administrator is under twenty-one years of age, 
 and continuing in force until he attains that age ; Adminis- 
 tratorship ad colligenda bona (e) granted when the executor, 
 or the administrator, or the person entitled to be adminis- 
 trator, is not in this Country, to authorize the person to 
 whom it is granted to collect the goods of the deceased and 
 transmit them to the executor or administrator, or hold 
 them for him. An administrator in respect of a particular 
 portion of the assets is also sometimes appointed (/). 
 
 On the death of an executor his office devolves on his 
 executor (if any), but not on his administrator — On ' the 
 death of an administrator his office does not devolve (g) — 
 When an executorship or administratorship comes to an 
 end by death, before the whole of the estate has been 
 administered, the Court will appoint a new administrator, 
 who is termed an administrator de bonis non administratis (k). 
 An executor or administrator is primarily bound to satisfy 
 
 («) Coombs v. Coombs, L. R., 1 P. & 
 M. 218. 
 
 (6) And not to a mere nominee of 
 them all, Teague v. Wharton, L. R., 2 
 P. & M. 360, unless special circum- 
 stances intervene, (as, if the next of kin 
 themselves be infants), Goods of 
 Burchmore, L. R., 3 P. & M. 139; see 
 as to granting it to a widow judicially 
 separated by her own fault, Goods of 
 Ihler, L. R., 3 P. & M., 50; as to 
 granting it to the nominee of a married 
 
 woman, Goods of Pine, L. R., 1 P. & 
 M. 388. 
 
 (c)2i H.VIII c.5, s. 3; Wins.' Exors., 
 403 sqq. 
 
 (d) See Monsell v. Armstrong, L. R., 
 14 Eq. 423. 
 
 (e) See Goods of Stewart, L. R., 1 P. 
 & M. 727, Goods of Schwertzfeger, L. R., 
 1 P. D. 424. 
 
 (/) Wms.' Exors, 503 504. 
 (3) Wms.' Exors , 244 to 275, 298, 
 244, 255. 
 
 (h) Wms.' Exors., 455.
 
 DEVOLUTION OF CHATTELS ON DEATH. 37 
 
 to the extent of the assets (a), and (even without assets) to 
 the extern to which he may have by writing promised to do 
 so, the (b) funeral and testamentary expenses (c), and 
 the expenses of administering the estate of the deceased, 
 and the other liabilities attaching on that estate, and the 
 
 debts of the deceased (d); but the law (to reimburse him His>ightto 
 
 . reimbursement 
 
 for this outlay) gives him a hen upon the assets in his 
 
 hands (e), which lien, if he so desire, he can enforce by 
 
 commencing an action for the administration of the estate 
 
 (/). If he assent to a bequest (that is express himself How disen- 
 
 satisfied that the subject of it is not required for the purpose en f orce it. 
 
 of satisfying the liabilities of the estate) he becomes 
 
 disentitled (g) to enforce this lien against that legacy (or 
 
 against any other except those which in the course of 
 
 administration would be liable to exonerate the one in 
 
 question) in respect to any liability of which he was then 
 
 aware (h); and if the assent was accompanied by a 
 
 transfer out of his own possession and control (i), he 
 
 becomes disentitled to enforce his lien as above, even in 
 
 respect of liabilites of which he was then ignorant. In this 
 
 case, therefore, he must meet the liability out of his own 
 
 means (/), unless he has by proper advertizements (k), or 
 
 by procuring the administration to be made in Court (I), 
 
 become protected from this liability. In those cases, Creditor's 
 
 rights. 
 however, in which an executor has lost his lien and 
 
 become exonerated from his liability, the law transfers that 
 
 (a) Powell v. Graham, 7 Taunt. 580. (g) Noel v. Robinson, 2 Ventris 358 ; 
 
 (b) Rann v. Hughes. 4 B. P. C. 27; Hilliard v. Fulford, L. R., 4 C. D. 394. 
 Child v. Motrins, 2 B. Sj- B. 460. (Ji) Unless as regards any debt which 
 
 (c) Wras.' Exors., 906, citing 3 Inst at the time of distribution had not yet 
 202; 55 Geo. Ill, c. 184, s. 37. As to arisen, and perhaps might never arise, 
 what are executorship expenses, see Jervis v. Wolfersian, L. R., 18 Eq. 25, 
 Sharp v. Lush, L. R., 10 C. D. 468. and even in this case he can only 
 
 (d) Rann v. Hughes, 4 B. P. C. 27; recover capital, not income, ib. p. 27. 
 unless protected by advertisements, (i) See Noble v. Brett, 24 Bea. 499, 
 Clegg v. Rowland, L. R., 3 Eq. 368, 510,511 but. 519. 
 
 Newton v. Sherry, L. R., 1 C. P.D. 246. (j) Spode v. Smith, 3 Russ. 511. 
 
 (e) Re Budd, L. R., 16 Eq. 203, (fc) Clegg v. Rowland, L. R., 3 Eq. 
 Jervis v. Wolferstan, L. R., 18 Eq. 18. 368; Neivton v. Sherry, L. R., 1 C. P. 
 
 (/) Wins.' Exors., 1759 to 1 762. D. 246. 
 
 (/) Noel v. Robinson, 2 Ventris 358.
 
 38 
 
 DEVOLUTION OF CHATTELS ON DEATH. 
 
 Powers of 
 executor, <$-c, 
 and purchase 
 from him. 
 
 Purchase from lien to the creditors, (a) from which it follows that the fact 
 of an executor having assented to a bequest is not sufficient 
 to shew that the title of the legatee is a clear one (b), 
 however strong a probability to that effect it may raise. 
 But if a legatee or distributee has for some years acted as 
 owner without being interfered with, the Court will protect 
 a purchaser from him against the demands of creditors 
 &c. (£);'and the same result follows when the executor, &c. 
 is himself the person thus entitled and acts in this way (d). 
 In addition however to the right of enforcing their liens 
 by administration-action, (which both the creditor and 
 executor possess,) the law (for the avoidance of unnecessary 
 expense) authorizes the latter to sell or mortgage the assets 
 himself (e), and to give a discharge to the purchaser, &c. 
 He is bound to do this only for the purpose of securing the 
 debts, &c, and for that of obtaining money to satisfy the 
 lien in question (/) or the debts, &c, or the claims of 
 such legatees (if any) as are entitled to priority over 
 those interested in the asset disposed of; and if the 
 purchaser, &c, be aware that he is making the disposition 
 for any other purpose, his purchase is postponed to the 
 claims of those interested in the asset in question (g). If 
 however the purchaser have no notice of this, he is not 
 bound to enquire (h). The executor, &c, can thus dispose 
 of both the legal and the beneficial interest against those 
 
 (a) Greig v. Somerville, 1 R. 4" M., 
 338; so (a fortiori) when the executor 
 has lost his lien without becoming 
 exonerated, Davies v. Nicholson, 2 D. 
 G. & J. 693 ; Noble v. Brett, 24 Bea. 
 499, especially p. 505, where the prin- 
 ciple is explained. See Ashley v. Ashley, 
 L. R. 4 Ch. D. 757. 
 
 (6) Noble v. Brett, 24 Boa., 499; 
 Hooper v. S7nart, L. R. 1 CD. 90, (both 
 cases of choses in action). 
 
 (c) Spack/nan v. Timbrell, 8 Sim. 260. 
 But this does not apply to choses in 
 action, because the doctrine which pro- 
 tects a purchaser without notice does 
 
 not apply to them; see Hooper v. Smart 
 4" Newto?i v. Sherry, (both above cited). 
 
 (rf) Spackmanv. Timbrell, 8 Sim. 260. 
 
 (e) Even to secure an antecedent 
 debt E. Vane v. Rigden, L. R., 5 C. D. 
 663, though an administration suit be 
 pending Spackman v. Timbrell, 8 Sim. 
 260, Berry v. Gibbons, L. R., 8 Ch.747. 
 
 (/) E. Vane v. Rigden, L. R., 5 C. 
 D. 663. 
 
 (g) Rice v. Gordon, 11 Bea, 265, St. 
 43 EI., c. 8, s. 2. 
 
 (/j) Wrns.' Exors., 874 citing Scott v. 
 Tyler 2 Dick. 725.
 
 DEVOLUTION OF CHATTELS ON DEATH. 39 
 
 deriving under the deceased; and it seems that if an 
 administration should turn out to have been conferred on 
 the wrong person, any disposition made by the adminis- 
 trator before revocation of his appointment will remain 
 valid, (certainly it will if made in a due course of 
 administration (a)) — nor is it now material by what Court, 
 &c, the letters of administration have been granted (b). 
 And an executor, &c, can continue to exercise these powers 
 though an action for the administration of the estate under 
 the Court have been commenced, and a decree in it made, 
 and the suit registered as a lis pendens (c). And one executor 
 or administrator can exercise the powers of all, (d) from 
 which it follows that if two make inconsistent dispositions, 
 the priority of these must be tested by the same rules as if 
 they had both been made by the same person. But an How precluded 
 executor, &c, is precluded from exercising these powers [v 0m exerclsin S 
 in respect to the subject of a bequest by assenting to that 
 bequest, and in respect to an undisposed of portion of the 
 personal estate, by allotting it to the person who would be 
 entitled in case the estate were fully administered, for such 
 assent or distribution transfers the legal estate (e), and 
 precludes the executor from again calling for it. The case 
 of debts afterwards discovered, and that of possibilities 
 afterwards ripening into claims, are exceptions as to this 
 rule, for they entitle the executor (as we have already seen) 
 to call upon the legatee to refund. The executor &c. is Dutyofexecu- 
 
 bound (when he finds it necessary to dispose of the assets) tor ' & . c ."' m , . 
 
 J *■ ' exercising his 
 
 to do so in the following order (/), unless the necessity of powers of 
 satisfying the claims upon the estate, or some other lspos ' 
 sufficient cause, occur to the contrary, in which case the 
 proceeds of a disposition made out of the prescribed order 
 
 (a) Greysbrookev.Fox, Plowd. 281-2. (d) Wms.' Exors., 8S5-6. And as to 
 As to payments to administrators be- a receipt by a single executor, Charlton 
 fore revocation, see 20 & 21 Vic, c. 77, v. E. Durham, L. R., 4 Ch. 433. 
 
 S. 78. (e) Stevenson v. M. Liverpool, L. R., 
 
 (b) 20 & 21 Vic, o. 77, s. 76. 10 Q. B. 81 . 
 
 (c) Berry v. Gordon, L. R., 8 Ch. 747. (/) Clarke v. Ormond, Jac. 108.
 
 40 DEVOLUTION OF CHATTELS ON DEATH. 
 
 will be applied to reimburse those who would otherwise be 
 damnified by the irregularity, istly — The portion which 
 does not fall under any disposition contained in the will 
 (or codicil), or merely falls under a sweeping clause 
 purporting to comprehend whatever may not have been 
 otherwise disposed of. 2ndly — Whatever is not otherwise 
 disposed of nor charged by the will, but is merely required 
 to make up (or to raise the money for the purpose of making 
 up) some legacy which the will &c. specifies by amount or 
 value only. 3 idly — Whatever is charged by the will 
 (or a codicil), in priority to any other portion of the assets, 
 with the payment of some specified sum or amount 
 given by it. 4thly — Whatever is so disposed of by the 
 will or codicil as t'o shew an intention on the part of the 
 testator that the legatee should have that particular 
 article (a). 
 
 And he is bound to apply the money thus raised to the 
 satisfaction of the claims which as executor he is bound 
 to satisfy, or to the reimbursement of himself for those 
 which he has satisfied; and if there be any surplus, to 
 expend it in satisfying the bequests, taking care that those 
 to whom specified property has been bequeathed shall be 
 first reimbursed for such of it as he has found it necessary 
 to dispose of and that those legacies which were charged 
 upon any specified part of the assets which he may have 
 sold are next reimbursed to the extent of the value of that 
 part of the assets; and that those to whom a legacy of a 
 specified amount or value (not a specified article) was 
 bequeathed are satisfied before those receive anything who 
 merely claim under a sweeping clause of the kind to which 
 Kinds ot I have alluded. Chattels bequeathed in these four modes 
 
 are respectively termed Specific (b), Demonstrative, Gen- 
 . eral and Residuary legacies. 
 
 (a) See Wms.' Exors. 1076 sqq., see Bothamley v. Sherson, L. R., 20 Eq 
 1270-1. 304; Powell v. Riley, L. R., 12 Eq. 175 
 
 (6) As to what is a specific legacy, (both important cases.)
 
 DEVOLUTION OF CHATTELS ON DEATH. 41 
 
 That the executor's duty is as above stated, will appear Order in 
 
 which sissots 
 from a consideration of the order in which the different liable to debts, 
 
 kinds of property of a deceased person are liable to the c * 
 satisfaction of his debts and testamentary expences. This 
 is stated in White & Tudor's Leading Cases in effect as 
 follows, those which are first mentioned being the earliest 
 liable (a). 
 
 I. — Personal estate not specifically bequeathed, unless 
 plainly exonerated, excepting so much as is necessary 
 to satisfy general and demonstrative legacies. 
 II. — Real estates directed to be sold for payment of debts, 
 
 and not merely charged with the payment of debts. 
 III. — Real estates descended. 
 IV. — Real estates devised charged with the payment of 
 
 debts. 
 V. — Personal estate necessary to satisfy general and 
 
 demonstrative legacies. 
 VI. — Real estate devised without being charged with 
 the debts (whether the devise be in form specific or 
 residuary,) and personal estate specifically bequeathed, 
 and so much of the personal estate charged with a 
 demonstrative legacy as is necessary to satisfy such 
 legacy (if any) — all these being liable in equal priority 
 unless the testator have otherwise directed. 
 In the note (i) I append references to the most recent 
 cases on this subject, which appears still to occasion consi- 
 derable difficulty. 
 
 (a) 2 Wh. & T. L. C. 137-9 (edition of 1872.) 
 
 (i) Residuary personal estate (including annuities, Hakin v. Kilburn, L. R., 2 
 Ch. D. 628), and shares of residue which fall to the next of kin, (as by reason 
 of death of the legatee before the testator, Trethewy v. Helyar, L. R., 4 C. D. 
 53); and real estate which descends to the heir (as when the devise fails under 
 the Mortmain Act, Blann v. Bell, 47 L. J. N. S. Ch. 120, or by death of the 
 devisee before the testator, Scott v. Cumberland, L. R., 18 Eq. 578), must exon- 
 erate personal chattels specifically bequeathed and the bequest of which takes 
 effect. 
 
 Real estate descended (as when a devise of it was void for uncertainty, Row v. 
 Row, L. R., 7 Eq. 414, where however there were peculiar circumstances), must 
 exonerate real estate specifically and effectually devised.
 
 42 
 
 DEVOLUTION OF CHATTELS ON DEATH. 
 
 Purchaser 
 from executor, 
 &c, when 
 bound to 
 inquire. 
 
 If a purchaser from an executor should be aware that 
 the debts and expences have been satisfied so that only 
 legacies remain unpaid, he may be bound to ascertain that 
 the subject of sale is being disposed of in its proper order (i). 
 
 [Order in Pecuniary legacies must exonerate real estate devised whether specifically or 
 
 which assets residuarily, Tomkins v. Colihurst, L. R., 1 C. D. 626 ; Farquharson v. Floyer, L. R., 
 liable, &c] 3 C. D. 109. 
 
 Residuary legacies must exonerate general legacies, Baker v. Farmer, L. R., 3 
 Ch. 537. 
 
 Personal estate bequeathed specifically, or bequeathed in terms as a whole and 
 not as a residue, is liable rateably with real estate devised specifically or other- 
 wise, Powell v. Riley, L. R., 12 Eq. 175. 
 
 General personal estate (that is personal estate devolving or residuary) 
 must exonerate real estate charged with debts (said Scott v. Cumberland, p. 583), 
 unless it be exclusively so charged, Forrest v. Prescott, L. R., 10 Eq. 545. 
 
 An elaborate discussion occurs in Scott v. Cumberland, L. R., 18 Eq. 578; and 
 a decision is there given that a lapsed share of real or personal estate must 
 exonerate residuary personal estate, but the Court seems not to have adverted 
 to the fact that it was residuary, and the decision has been in this respect over- 
 ruled in Trethewy v. Helyar, L. R., 4 C. D. 53, and Blann v. Bell, L. R, 47 L. J. 
 Ch. 120. It was also there held, that in general a lapsed legacy will be treated 
 as undisposed of, but it was also held (on the authority of Eyre v. Marsden, 4 M. 
 & Cr. 231,) that it will not be treated as meant to be included under the words 
 "undisposed of" as used in the will, (for example, in a direction that "undis- 
 posed of" estates shall be primarily charged), and this seems to have been the 
 principle of the decision in Blann v. Bell, 47 L. J., Ch. 120. 
 
 Mortgaged hereditaments must exonerate other property from the Mortgage 
 Debt, (17 & 18 Vic, c. 113,) unless either a contrary intention appear, (as to 
 which see re Newmarch, Newmarch v. Storr, L.R. 9 C. D. 12), or the testator's 
 estate in the hereditament be a mere chattel interest, (Hill v. Wormsley, 
 re Wormsley's Estate, L. R., 4 C. D. 665). 
 
 (i) So stated in Ewer v. Corbett, 2 P. W. 149, and Burt v. Stonard, ib. 150. 
 This seems also to have been the ground of decision in Savage v. Humble, 3 B. 
 P. C. 5, in which case the mortgagee from the executor no doubt knew that 
 an administration suit was pending in which the debts had been paid. See as 
 to a purchase of real estate from a devisee of it who is also executor, when 
 the will has charged the debts upon such real estate, Corser v. Cartwright, L. 
 R., 7 H. L. 731.
 
 (43) 
 
 CHAPTER V. 
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 
 
 an heredita- 
 ment generally. 
 
 The observations respecting joint tenancy which I made Devolution of 
 at the commencement of the chapter on the devolution of a J0int estate - 
 chattels on death apply equally to "hereditaments" — that is 
 tenements and such annuities as are limited to the "heirs" 
 of the original annuitant or to some class of them. 
 
 In other respects the devolution of these species of Devolution of 
 property is regulated by quite different principles from 
 those enunciated in the preceding chapter, for that of an 
 annuity limited to the heirs (a) (although it is only a 
 personal chattel) is regulated by substantially the same 
 rules as that of a tenement. 
 
 If the deceased leave a wife, she is entitled during her Dower 
 life (b) to one-third of her husband's tenements, whether 
 entailed (c) or not, excepting those which from their nature 
 do not admit of division (i). But she is not entitled to any 
 interest in a chattel annuity (d) ; nor in the case of copy- 
 holds is she thus entitled unless the custom so prescribe (e) ; 
 and in no case is she entitled if her husband's estate was 
 merely for the life of some person even though the estate 
 be renewable for ever. Nor does she take anything against 
 a surviving joint tenant; nor does she take if the husband's 
 only interest was substantially (/) (as well as technically) 
 a future one down to the close of the coverture (g). 
 
 (i) But even of these she is endowed by obtaining an alternative benefit unless 
 it be that such endowment would be injurious to some third person (/t). 
 
 (a) Co. Litt. 20a., 3 & 4 W. IV., c. 
 106, s. 1. 
 
 (6) 3 & 4 W. IV, c. 105. 
 
 (c) Litt., s. 36, 52; Co. Litt, 29b. 
 
 (d) Co. Litt. 32a. 
 
 (e) Shaw's Case, 4 Co., 30b. pi. 92; 
 
 Norfolk v. Sanders, 3 Doug. 303. 
 
 (/) 3 & 4 Wm. IV, c. 105, s. 3. 
 
 ( 9 ) D'Arctj v. Blake, 2 S. & L. 387, 
 Co. Litt., 32a. 
 
 (A) Co. Litt., 32a.
 
 44 
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 
 
 Curtesy. 
 
 (Out of separ- 
 ate estate.) 
 
 Dower for- 
 feited. 
 
 If the deceased leave a husband, (i) he is entitled for life 
 to the whole of his wife's tenements (a), whether entailed 
 or not (b), but not to her chattel annuities, nor to estates 
 which she held for the life (c) of any person (d) ; and in the 
 case of a copyhold, only if the custom so prescribe (e). 
 And in every case he is only entitled upon the condition 
 that he has had by his wife a child born (/) alive (g), which 
 might by possibility (h) have inherited the estate as heir to 
 the wife (i) ; and in the case of a corporeal tenement, on 
 the further condition that he has, by himself, or his servant 
 or agent, obtained possession of it (_/), and the husband, 
 like the wife, is excluded from estates in reversion (k), and 
 from estates surviving to a joint tenant (I). Much contro- 
 versy has arisen (m) as to whether, when the wife has 
 merely a beneficial interest limited to her separate use, the 
 husband is entitled to this estate (termed an estate by the 
 curtesy) in it, and the tendency of decision is to the effecl: 
 that he is. The Courts do not appear to have thought of 
 testing the question by considering whether he (or his wife) 
 is to receive the income, or whether trustees are to pay it 
 to her, but as regards corporeal tenements it is arguable 
 that in the former and not in the latter case, the husband 
 has obtained that possession which is necessary to entitle 
 him to an estate by the curtesy. 
 
 A wife who has left her husband and lived with an 
 adulterer was barred of dower (n) ; but whether this is not 
 impliedly repealed by the affirmative language of the Dower 
 
 (i) But in some respects the law treats this estate as commencing during the 
 coverture, Co. Litt., 30a. 
 
 (a) Co. Litt., 30a. 
 (6) Amcotts v. Catherick, Cro. Jac. 
 615; Litt. 36, 52; Co. Litt., 29b. 
 
 (c) 18 Edw. Ill, 44b.; 22 Edw. Ill, 
 19b. Ro. Ab. Dower, G. 2. 
 
 (d) See Litt, s. 35. 
 
 (e) Rivet? s Case, 4 Co. 22b. [34. 
 (/) Co. Litt. 29b. ; Pains Case, 8 Co. 
 (<7) Litt. s. 35. 
 
 (A) Co. Litt., 40a. 
 (i) Co. Litt., 40a. 29b. 
 
 (j) Co. Litt., 29a. 
 
 {Ic) Co. Litt., 29a. 
 
 (/) But the marriage of a female 
 joint tenant has been held to sever the 
 joint tenancy, 7 Edw. Ill, 6. But Co. 
 Litt., 188a. imports the contrary. 
 
 (m) See especially the dicta of Jesse, 
 M. R., in Cooper v. Macdonald, L. R., 
 4 C. D. 289, which case was appealed 
 and decided on another point. 
 
 (n) 13 Edw. I, c. 34.
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 45 
 
 Act (a) may be a question. At all events, if he receive her 
 
 back again, this restores her to her right (b). Parliament 
 
 has not inflicted on the husband a similar penalty. 
 
 The hereditaments of the deceased pass (subject to the Heirship. 
 
 rights of the husband or wife, if any) to the heir, that is to 
 
 the relative who, in the days when the feudal system 
 
 nourished, was considered to combine as far as practicable 
 
 the claims of kinship with those of policy. 
 
 The rules which determine who shall be heir have been Inheritance 
 
 Act 
 symmetrised by a modern act (c) of Parliament as regards 
 
 descents occurring since the 31st December, 1833, and 
 
 such alone I think it necessary to consider. This act 
 
 applies to copyholds &c, except where a special custom of 
 
 descent is proved, but does not override such special 
 
 custom (d). 
 
 Descent is traced from the person to whose heirs the Stock of 
 
 estate was limited by the last instrument of disposition 
 
 other than some such partition or enclosure as shall have 
 
 made the property part of (or descendible like) some other 
 
 hereditament acquired by descent. For example, if land be 
 
 devised to the heirs of A without anything being given to 
 
 A himself, the descent will be traced from A (e), and the 
 
 person who, at the testator's death, is heir of A will first 
 
 take; and so in the ordinary case of a gift to A and his 
 
 heirs, the descent will also be always traced from A (/), 
 
 even though not only he, but his heirs for many generations, 
 
 may have successively held the property and died intestate 
 
 (g). This rule is an alteration on the old law. If the 
 
 property was given by an instrument in which the word 
 
 "heirs" is not required by law to be used, and is not used, 
 
 the descent is traced from the person to whom it was so 
 
 given. If it was acquired by an escheat rendering it part 
 
 C<0 3 & 4 Wm. IV, c. 105, s. 2. Ex. 125. 
 
 (6) 13 Edw. I, c. 34. 00 3 & 4, Wm. IV, c. 106, s. 1-4. 
 
 (c) 3 & 4 Wm. IV, c. 106. (/) 3 & 4 Wm. IV, c. 106, s. 4. 
 
 (d) Muggleton v. Burnett, L. J., 37 (3) B. 2 (clause 1), s. 3.
 
 46 DEVOLUTION OF HEREDITAMENTS ON DEATH. 
 
 of (or descendible like) some other property the descent is 
 traced accordingly. If it was acquired by an escheat not 
 having this effect, or by wrongful possession, and has 
 never been since disposed of, the descent is traced from 
 the person who so acquired it. But to prevent unnecessary 
 expense, the person who was last entitled is to be 
 presumed, until the contrary be proved, (a) to have filled 
 the character which would entitle him to be the stock of 
 descent ; and if the contrary be proved, but it cannot be 
 ascertained who is heir to the stock whom the rule 
 prescribes, the person who was last entitled will be treated 
 as the stock of descent (b). 
 
 If an heir were to enter on the land of his deceased 
 ancestor, and hold it for the period prescribed by the 
 Statute of Limitations, and then die intestate, and it were 
 afterwards to be discovered that the ancestor had left a will 
 devising it away from the heir, an interesting question 
 would arise as to whether descent should be traced from 
 the heir who so entered and died, (on the ground that his 
 entry was, though he did not know it, the commencement 
 of an adverse title), or from his ancestor, (on the ground 
 that he claimed merely as heir). 
 Course of If at the death of the deceased the eldest son of the 
 
 person from whom descent is to be traced be alive, he is 
 heir; if he be dead, but have left issue, his lineal heir is 
 heir; if he be dead without issue, the next son or his lineal 
 heir is heir, and so on through the sons and their 
 descendants; if no son (nor descendant of a son) of the 
 stock of descent be living, but one or more daughters be so, 
 the daughter or daughters are heir (or coheiresses) ; but if 
 in addition to such daughter or daughters there be also 
 issue of a deceased daughter, the share which such 
 deceased daughter would have taken if alive will go to her 
 
 (a) 3 & 4 Wm. IV, c. 106, s. 2. (6) 22 & 23 Vic, c. 35, s. 19. 
 
 descent.
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 47 
 
 lineal heir (a) as if she were the stock of descent. If no 
 descendant of the stock of descent be alive, but his father 
 be, he will take (b). If the father be not alive, but some 
 issue of his be so, the lineal heir of the father will take (c). 
 If no issue of the father be alive, the father's father and 
 his issue will be resorted to (d). If no ancestor from whom 
 the stock of descent can trace his lineage in the direct male 
 line nor any descendant of such an ancestor be alive, the 
 mother of the most remote ancestor of this class is admitted; 
 and failing her, her lineal heir (e) ; and failing such, the 
 descent will be traced amongst her ancestors and their 
 issue; and failing these, the mother of the next most 
 remote till we come down to the mother of the stock of 
 descent himself and her heirs, including if necessary her 
 ancestors and their issue; after which our enquiry ends. 
 Half-blood are admitted on failure of whole blood (/) in the 
 same degree, but in preference to whole blood of a remoter 
 degree, of relationship. If no heir can be found, (a result 
 which can only occur when we can trace up the descent to 
 bastardy (g), attainder, (that is sentence of death for 
 crime (h)) or (under some circumstances) alienage (i), the 
 property passes to the Lord of whom it is held, or perhaps 
 more correctly to the person now holding the interest of 
 the person of whom (as Lord) it was (when the feudal 
 system nourished) held (/); and if no one can prove his 
 claim to be regarded as such, it passes to the Crown ; but 
 an equitable estate does not thus "escheat," as it is called, 
 either to the Lord or to the Crown, but goes to the trustee (k). 
 
 (a) Cooper v. France, 19 L. J., Ch. the attainder of a person dying before 
 
 313. the descent takes place is immaterial, 
 
 (6) 3 & 4 Wm. IV, c. 106, s. 6. 3 & 4 Wm. IV, c. 106, s. 10. 
 
 (c) s. 6. («) Since the 12th May, 1870, the 
 
 (d) s. 6-7. disability of alienage is removed except 
 
 (e) s. 8. as to dispositions and devolutions oc- 
 (/) s. 9. curring before thatdate, 33 Vic.,c. 14,s.2. 
 (ji) As in Doe v. Blackburn, 1 Mood. (j) Doe v. Blackburn, 1 Moo. & Rob. 
 
 & R. 647. 547. 
 
 (h) But since the 1st January, 1834, (fc) Beale v. Symonds, 16 Bea. 406.
 
 48 
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 
 
 Bastardy. 
 
 Descent 
 restricted to 
 issue. 
 
 Principle of 
 
 continuing 
 
 considerations. 
 
 On gift to a 
 corporation. 
 
 On gift in fee 
 conditional. 
 
 Bastards are not, in general, capable of inheriting, but if 
 the parents of a bastard who if he were legitimate would 
 be his father's heir marry after his birth, and then his 
 father die intestate, and he enter claiming as heir, and 
 hold possession during his whole life without disturbance 
 from the legal heir (a); or if the parents of a bastard 
 daughter who if she were legitimate would be one of her 
 father's co-heiresses marry after her birth, and her father 
 die intestate, and she enter along with her sisters as one 
 of his co-heiresses, and her sisters do not object but make 
 partition with her (b) ; in either case the defect in the birth 
 is cured. 
 
 Peculiar rules govern the descent to property limited to 
 the heirs of the body of a person, or to a class of them, 
 (such as the heirs male, the heirs female, the heirs by a 
 specified wife, the heirs descended from a specified 
 ancestor). 
 
 It is a principle of law, of pretty general application, 
 that when two parties contract, and each has to pay a 
 consideration of a continuous character, and the consider- 
 ation payable by the one afterwards fails, the other also 
 may cease to render the consideration moving from him. 
 
 Sometimes the purpose of a gift is treated as in this 
 respect resembling a consideration. This principle has 
 two applications in the law of descent. 
 
 First : when a tenement is given to a Corporation, the 
 law holds that the purpose of the donor is to promote the 
 purposes for which the Corporation was founded; and if 
 the Corporation be dissolved, the law makes the estate 
 devolve not on the Lord of whom it is held, but on the 
 donor or his heir (c). 
 
 Secondly: when an annuity (d), or a copyhold held of a 
 manor in which there is no custom to entail (e), is limited 
 
 (a) Co. Litt., 3b. (</) Co. Litt., 19b. 20a. 
 
 (b) Co. Litt., 170b. (e) Doe v. Clark, 5 B. & Aid. 458. 
 
 (c) Co. Litt., 13b., Att-Gen.v. Lord Co. Litt., 19a. 
 Gower, 9 Mod. 226.
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 
 
 49 
 
 to a person, and to the heirs of his body (or some class of 
 
 them), the law considers that the purpose of the gift was 
 
 to provide for the aggrandizement of the donee's family; 
 
 and therefore if he never has any lineal descendants, or 
 
 never has any of the specified class (a), or if they fail, the 
 
 law gives back the estate, not to the lord of the fee, but to 
 
 the donor or his heir. Such an estate is called a Conditional 
 
 fee (b). 
 
 But, in order to avoid unnecessary restrictions on the Alienation of 
 
 estates to 
 freedom of alienation, the law, in both these cases, 
 
 authorizes the donee to dispose of the estate and thus 
 defeat the donor's "possibility of reverter," (c) provided 
 that, in case of a limitation to the heirs of the body, he 
 makes the alienation at some time when there is a 
 probability of the purpose being fulfilled, that is at some 
 time when he has issue living and capable of inheriting the 
 estate under the limitation [d). 
 
 Before Edward I's reign limitations to the heirs of the 
 body in freehold tenements were also governed by the above 
 principles; but in that reign the law was altered by the 
 Statute of Conditional Gifts (e), which invalidated all alien- 
 ations by which persons entitled to such estates might seek 
 to disherit their issue, and also by implication authorized 
 the donors to prescribe, by the same or a subsequent dispo- 
 sition, who should take the estate on a failure of inheritable 
 issue (/). Such an estate as the statute prohibits the alien- 
 ation of is called an Estate Tail (g). 
 
 which this 
 
 principle 
 
 applies. 
 
 (a) Co. Litt., 20a. ; though according 
 to the cases cited In Rolle Ab. 841, 
 descendants not belonging to the class 
 specified were inheritable if those who 
 belonged to the class failed. 
 
 (6) See (for the general law as to 
 conditional fees) Co. Litt., 19a., 19b., 
 Doe v. Clark, 5 B. & Aid. 458. 
 
 (c) As to conditional fees, Co. Litt., 
 19a. As to grants to Corporations, 
 Rolle Ab. Eschete A. 1,2, (which is cited 
 by Hargreave (n. 2 to Co. Litt., 13b.) 
 as denying the existence of the possi- 
 bility of reverter, whereas in pi. 3, 4, 
 
 Rolle expressly asserts it. Rolle sug- 
 gests that an advowson in gross must 
 also (on death of the owner intestate 
 and without heirs) pass to the person 
 from whom it was last granted or his 
 heirs, and failing him and them, to the 
 King; ib. pi. 6. 
 
 (d) ib. 
 
 (e) 13 Edw. I, c. 1. 
 
 (/) See 2 Thomas's Co. Litt., chap, 
 on Remainders. 
 
 (<7) From " taillee," because it is an 
 inheritance cut short. 
 
 Estates tail.
 
 50 
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 
 
 Descent of 
 estates in fee 
 conditional or 
 in tail. 
 
 Barring of 
 entails. 
 
 Protector. 
 
 The devolution of an estate tail, and that of a conditional 
 fee when it is not restricted to any particular class of issue, 
 is the same as that of an estate in fee-simple, except that 
 it terminates upon failure of lineal heirs. When it is 
 restricted to heirs male, it descends exclusively to males 
 claiming through males. When it is restricted to heirs 
 female, it descends exclusively to females claiming through 
 females. It may also be restricted in almost any other 
 manner (a). On failure of issue of the class specified, the 
 descent of an estate tail stops (b) ; but that of a fee condi- 
 tional continues, according to Rolle (c), to the other des- 
 cendants. 
 
 I conceive that the operation of the enactment which 
 invalidates alienations by which issue would be disherited 
 may be prevented by a clause in the instrument creating 
 the entail, for the statute merely directs that the will of the 
 donor shall be observed. It may also, after the creation of 
 the entail, be obviated by a disposition accompanied by 
 peculiar formalities, the nature of which will be discussed 
 in a later chapter (i). 
 
 Although, however, a disposition accompanied by the (d) 
 prescribed formalities is sufficient to bar the entail (e), and 
 is also (speaking as a general rule and not entering into all 
 the details, which are set forth with great clearness in the 
 Statute,) sufficient (when the estate tail is an estate in 
 possession, or is expectant only on the termination of a 
 
 Whether inten- (i) I have known the question to arise in practice whether a deed purporting 
 tion to bar be to convey land in fee will bar an estate tail in tbe land when the grantor who 
 necessary. executed the deed supposed that he was entitled in fee, and that the estate tail 
 
 (if he knew it had ever existed) had been defeated by a previous appointment 
 under a power, and he accordingly did not entertain, nor by the deed express, 
 any intention to bar the entail which was afterwards found to be still subsisting, 
 the grantor having at the time such an estate as would have enabled him to bar 
 the entail, and the discovery having been made by the purchaser's solicitor in 
 time to enrol the deed, which he immediately did without communicating with 
 the grantor. 
 
 (a) Litt., s. 21-2; Co. Litt., 24a. &c. 
 
 (&) Co. Litt., 19a. to 27b. 
 
 (c) 1 Ro. Ab.841. Harg's. Notes to 
 
 Co. Litt., 19a.; Contra Co. Litt., 20a. 
 
 (d) 3 &4 Wm. IV, c. 74, s. 41. 
 
 (e) s. 15.
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 
 
 51 
 
 lease at a rent (a) or on that of an estate for years not 
 terminable on the dropping of any life or lives (&),) to bar 
 the estates lying behind the estate tail; yet, when the estate 
 tail is expectant on the termination of any other estate than 
 those- which I have mentioned, the law recognizes a 
 protector of the settlement (c), whose consent is necessary 
 to the barring of the estates lying behind the estate tail (d), 
 unless either those estates become the property of the 
 persons who derive under the disposition by which it was 
 attempted to bar them (e), or the disposition by which it 
 was attempted to bar them was made for valuable 
 consideration, and the tenant in tail afterwards makes some 
 effectual disposition with the consent of the protector or 
 at a time when there is no protector. 
 
 When a disentailing disposition is made merely for a Bar for a lirni- 
 limited purpose, (such as that of raising money), the bar 
 (whether as to the entail or as to the estates lying behind 
 it) does not operate to any further extent than that required 
 for the accomplishment of that purpose, unless an estate 
 of inheritance, or for the life of the grantee, be limited by 
 the disposition; but in that case the bar extends to the 
 whole period embraced by such estate, so that after the 
 fulfilment of the purpose, (for example, after the redemption 
 of the mortgage &c. created by the instrument), the estate 
 which was created by wa) - of security becomes the property 
 of the tenant in tail (/). In neither case does any decla- 
 ration to the contrary prevail ; nor I apprehend would any 
 form of limitation to the contrary prevail, unless contained 
 in a distinct instrument, though this last point has excited 
 some difference of opinion. 
 
 The statute which cast the rules applicable to the barring 
 of entails into their present form, and which abolished 
 
 Fines and Ee- 
 coveries Act 
 commented on. 
 
 (a) 3 & 4 Win. IV, c. 74, s. 26. (d) s. 34. 
 
 (6) s. 22. (e) s. 39. 
 
 (c) ss. 22 to 32, where the question (/) s. 21. 
 who shall be protector is answered.
 
 52 DEVOLUTION OF HEREDITAMENTS ON DEATH. 
 
 Fines and Recoveries, was the work of Mr. Peter Broclie, 
 and is the best drawn of all our statutes, contrasting most 
 favourably with the awkward clauses of the Statute of 
 Limitations ; and as it is easy of access and presents but 
 few difficulties, I do not propose here to dwell upon it; but 
 I may mention that in the corresponding Irish Act words 
 have been inserted with a view to prevent the very few 
 questions which it was thought might possibly have been 
 raised (a) as to its meaning, and that one at least of its 
 provisions (that which prohibits lessees at a rent from 
 acting as protectors) is not new, but merely repeats mutatis 
 mutandis the provisions of an earlier Act; (b) respecting 
 Common Recoveries, and that the learning of Fines and 
 Recoveries, which were the means employed before the 
 statute for (amongst other purposes) the barring of entails 
 and estates lying behind estates tail, is to be found in Mr. 
 Cruise's works on those subjects, and almost as fully in his 
 "Digest" (c). 
 "Bare I must also mention, that as no human work is perfect, 
 
 so in the statute for the Abolition of Fines and Recoveries 
 there is one flaw, — the use (without defining it) of the 
 expression "bare trustee." The same expression occurs 
 in a more recent statute (d), and has received in respect of 
 that statute very recent elucidation. The most recent 
 definition is that suggested by the present Master of the 
 Rolls (tf)_"a trustee without any beneficial interest." Others 
 (/) have thought that a trustee without active duties to 
 perform ; or a trustee who has but one beneficiary and who 
 could be compelled by that beneficiary to convey to him ; or 
 a trustee having several beneficiaries who are all competent 
 to concur in requiring a conveyance and have required 
 
 (a) 3 & 4 Wm. IV, g. 74, ss. 1 (c) Vol. 5. 
 
 ("estate"), 20, 38, 78; 4 & 5 Wm. IV, (d) 38 & 39 Vic, c. 87, s. 48. 
 
 C. 92, ss. 1 ("estate"), 17, 36, 69. (e) Morgan v. Swansea, S. A., L. R. 
 
 Differences also occur in ss. 15 (Ir. 9 C. D. 582, 584. 
 12), 19 (Ir. 16), Ir. 22. (/) Sec Christie v. Ovington, L. R. 1 
 
 (b) 14 Geo. II, c. 20. C. D. 281.
 
 DEVOLUTION OF HEREDITAMENTS ON DEATH. 53 
 
 it; is a "bare trustee." The clause in the Fines and 
 Recoveries Act respecting a bare trustee is that which 
 provides that he shall not, except in certain cases, be 
 protector. Under this section also, the question has come 
 before the Courts (a), but the question merely was whether 
 the 31st section should be overridden by the 24th. 
 
 Dispositions by which estates are limited to one and the Q uasi entails of 
 heirs of his body during the life of another do not fall under autre „; e . 
 the above rules, even when they are perpetually renewable. 
 Practically, however, the law respecting them is almost 
 the same as that stated above. The learning respecting 
 them is elaborately discussed in the case referred to in the 
 note (b). 
 
 The limitation of a term of years to one and the heirs of Quasi entails 
 
 1-111 1 rr r %••.,• i • 1 • of estates for 
 
 his body has the enect ot a limitation to him his executors years. 
 &c. absolutely; but the entailing of such estates can be 
 very nearly effected by the use of a peculiar, and highly 
 technical, form of limitation, which I will explain in a later 
 page. 
 
 On the death intestate, since 31st December 1875, of a 
 bare trustee of a fee simple estate in a hereditament (c), and 
 on the death, between 7th August 1874 an d 1st January Estate of a 
 
 "Bsrc Trustee " 
 
 1876, of a bare trustee of any estate in a hereditament (d), 
 
 the legal estate held by him devolves like a chattel ; and 
 
 since 7th August, 1874, the legal personal representative of 
 
 a mortgagee of a freehold (or of a copyhold to which the 
 
 mortgagee has been admitted) may convey or surrender the 
 
 estate on payment of all sums secured by the mortgage (c). Estate of a 
 J r\ Mortgagee. 
 
 But he cannot transfer the estate to a new trustee of the 
 
 mortgage (/), nor is it clear whether he can convey on sale 
 
 under a power even when the purchase money is sufficient 
 
 to satisfy the mortgage debt. 
 
 (a) Keer v. Brown, Johns, 138. (d) 37 & 38 Vic., c. 78, s. 5. 
 
 (6) Allen v. Allen, 2 Dr. & War. 307. (e) 37 & 38 Vic, c. 78, s. 4. 
 (c) 38 & 39 Vic, c. S7, s. 4S. (/) Re Biook, 23 W. R. 841.
 
 ( 54 ) 
 
 CHAPTER VI. 
 
 TRANSMISSION ON MARRIAGE. 
 
 Generally. 
 
 Early law. 
 
 As to Tene- 
 ments. 
 
 As regards transmission on marriage, our present law is 
 very one-sided, being unduly favourable to the husband; 
 but this partiality is the result of accident, and can best be 
 understood by sketching the history of the law on this 
 subject. 
 
 Tenements were, anciently, the only kind of property of 
 much importance or value, and the law respecting them 
 was settled in an equitable manner. Marriage entitled the 
 wife, on the death of her husband, (against everyone but 
 a joint tenant surviving him), to one-third of his tenements 
 during her life, and this right could not be defeated by the 
 husband, nor could it be defeated by the wife herself except 
 under those safeguards which the law had provided to 
 prevent undue influence being exerted by her husband, and 
 which will be referred to in a subsequent chapter. On the 
 other hand marriage entitled (as it still entitles) the 
 husband to an estate in his wife's tenements for the joint 
 lifetime of both (b), and under certain circumstances it 
 further entitled him, as we have seen, to an estate during 
 his own life (c). The husband was thus secured in the 
 position of head of the family (and perhaps had some undue 
 advantages), but still he was not entitled to absolutely 
 confiscate his wife's property, nor yet to make away with 
 his own and leave her destitute. But neither the husband 
 nor the wife was or is entitled to the estates we have been 
 describing except out of an estate of inheritance. Whether 
 the estate was held in fee-simple or in tail was and is 
 immaterial. 
 
 (a) Co. Litt, 30b. to 40a. (c) Ante p. 44. 
 
 (6) Robertson v. Xorris, 11 Q. B. 917
 
 TRANSMISSION ON MARRIAGE. 55 
 
 As regards corporeal (a) personal chattels, the husband As to Chattels 
 •11/1 -ii • v i • -r , n i • personal and 
 
 was entitled (as he still is) to his wife s as well as to his corporeal. 
 
 own, they passing upon the marriage (b). But the cor- 
 poreal personal chattels which then existed were but of 
 small value and importance, and the rule was probably a 
 politic one, having for its object to preserve that unity of 
 interest which ought to exist in the marriage state from 
 being lightly disturbed. 
 
 The wife's personal rights of action the husband could As to Choses in 
 (as he still can) enforce in their joint names; and such as 
 arose on contracts made after marriage, and also such as 
 arose on negotiable instruments, he could (as he still can) 
 sue on in his own name alone if he preferred to do so (c), but 
 of course when the cause of action is an injury to a cor- 
 poreal chattel which the marriage has transferred to the 
 husband, the injury is done to him alone and he alone can 
 sue. And as he can sue on her rights of action, so he can 
 receive and give a valid discharge for the money (d) or 
 other chattel (e) for which such action might be brought, 
 whenever such money or chattel is paid or rendered to 
 himself (/) or to any other person (unconnected with the 
 wife) at his request (g), or to his assignee (h), or is 
 continued in the custody and possession of some one to 
 whom he transfers (i) his right of action. On her death in 
 her husband's lifetime her rights of action passed to him (J), 
 and this rule also still continues in force. This doctrine 
 respecting rights of action, in the days when rights to 
 recover debts or damages were the only incorporeal chattels 
 
 (a) As to what constitutes the dis- (e) Widgery v. Tepper, L. R. 7, C. D. 
 tinction between a corporeal chattel 423. 
 
 and a chose in action see Ante, p.3n.(i). (/) See the authorities cited in Doe 
 
 (b) Fleet v. Perrins, L. R. 3, Q. B. v. Pokrean, ] H. Bl. 538, and see 
 541, 542. Loftuss Case, Cro. El. 279. 
 
 (c) See on this subject Dicey on (g) Hamilton v. Mills, (well discussed) 
 Parties, Ch. 8 and Ch. 22, where it is 29 Bea. 193. 
 
 admirably discussed. (ft) Allday v. Fletcher, 2 D. J. S. 82, 
 
 (d) Hamilton v. Mills, 29 Bea. 193, Burton v. Williams, L. R. 5 C. D. 655. 
 and see the authorities cited in Doe v. (i) See Widgery v. Tepper, L. R. 7, 
 Pokrean, 1 H. Bl. 538. C. D. 423. 
 
 0') Gds. of Harding, 2 P. & M. 394.
 
 5G 
 
 TRANSMISSION ON MARRIAGE. 
 
 As to Terms of 
 years. 
 
 Alterations in 
 these doctrines. 
 
 As to Dower. 
 
 known, stood on the same foundation with the doctrine 
 respecting corporeal personal chattels, and is little more 
 than a deduction from it. 
 
 Estates for years, even in tenements, follow nearly the 
 same rules, and for the same reason. The only estates of 
 this nature which were in existence at the time when the 
 rule arose were very short, and merely intended for farming 
 purposes (a) ; but I am not aware that the law respecting 
 them ever differed from that now in force, viz : that the hus- 
 band continues solely entitled to his own and becomes tenant 
 by entireties (that is, substantially, joint tenant) with his wife 
 of hers, which accordingly pass on the death of one of the 
 pair to the survivor (b), while he is entitled (c) besides, to 
 dispose at his pleasure (but not by will) (d) of such of his 
 wife's as have vested, or possibly might have vested, during 
 the coverture (e), and to make what use he pleases of them 
 while undisposed of (/). 
 
 Such was the ancient law, and it was reasonably equit- 
 able under the circumstances under which it arose. 
 
 But the wife's right to dower (that is to a life estate in one- 
 third of her husband's estates of inheritance) was felt (when 
 land gradually became an article of commerce) to be an 
 intolerable clog on alienation (g); and although the evil was, 
 even in ancient times, mitigated by the wife's power to bar 
 this (as well as to dispose of all her other interests) by the 
 peculiar and expensive mode which the law had provided 
 for her protection and which will be described in its proper 
 place, and was, in more recent times, generally obviated 
 by a form of limitation invented for the purpose by which 
 
 (a) Ante, p. 4. 
 
 (J) 1 Ro. Ab. Baron & Feme, H., A A. 
 
 (c) See the authorities cited in Doe 
 v. Polciean, I H. Bl. 538, and see as to 
 leases Loftus's Case, Cro. El. 279. 
 
 (d) Co. Litt., 351a. 
 
 (e) Duberley v. Day, (which read) 5 
 H. L. C. 388, affg. S. C. 1 6 Bea. 33 ; Doe 
 v. Steioard, I Ad. and E. 300. 
 
 (/) 1 Ro. Ab. Baron & Feme, F. 5, 
 G. 16. 
 
 (<7) Real Property Commissioner's 
 Report : — in which the old law on the 
 subject and the devices for avoiding it 
 are stated in a readable form. Much 
 of this report is copied into Shelford's 
 R. P., Stats, p. 417.
 
 TRANSMISSION ON MARRIAGE. 57 
 
 technical doctrines were so taken advantage of as to prevent 
 the right from attaching at all to any estate which was 
 conveyed to the husband by this peculiar and cabalistic 
 form of expression (a) (which is so well known as well as so 
 obsolete that I do not intend to describe it), the right still 
 pressed sorely on purchasers until the year 1833, when a 
 statute (b) was passed which provided as regards women 
 married since that year that every right to dower should be 
 subject to any disposition by the husband (c). This removes 
 the difficulties in the way of the free alienation of property, 
 but it leaves the wife in a somewhat unfair position. The 
 husband's right to a life interest in his wife's real estate, 
 (which is termed an estate by the law (or curtesy) of Eng- 
 land, from an erroneous (d) impression that it was peculiar 
 to England (e)), remains unaffected by legislation. Both 
 these rights hold good against issue in tail (/) as well as 
 against the heirs of a fee-simple. 
 
 As regards terms of years, the law has never been altered, As to terms 
 although terms so long as to amount practically to owner- 
 ship have in modern times been frequently created, so that 
 the very fact that the law has remained unaltered in form 
 has altered it completely in effect, and the lands of the wife, 
 when they happen to be held for a term of years, are placed 
 in her husband's power in a way which the founders of our 
 law never intended. But the wife is somewhat protected 
 by the rule (which appears to be of modern introduction (g) 
 that estates which cannot possibly vest (h) even in interest 
 (/) during the coverture cannot be dealt with by him, and 
 that therefore if the wife's leasehold is only to vest in her in 
 case she survives the husband he acquires no interest in it. 
 
 Personal chattels have become of much greater value As to Money 
 and variety than formerly and Incorporeal Funds are now 
 
 (a) Ray v. Pung, 5 B. & Aid. 561. (/) Litt., s. 36, 52; Co. Litt., 29b. 
 
 (6) 3 & 4 Wm. IV, c. 105, s. 14. (g) Duberleyv.Day, (well discussed) 
 
 (c) s. 4, s. 5. 5 H. L. C. 388 a%, S. C. 16 Bea. 33; 
 
 (cf) Co, Litt., 30a.; 1 Thomas's Co. Doe v. Steward, 1 Ad. & El. 300. 
 
 Litt., 556n. (A) Duberley v. Bay, Doe v. Steward. 
 
 (e) Litt., s. 35. (i) Doe v. Polgrean, 1 H. Bl. 535.
 
 58 TRANSMISSION ON MARRIAGE. 
 
 frequently as important as fee-simple estates, yet the hus- 
 (Howafund band is held entitled to them — as choses in action; but by 
 is reduced into ana i gy to the rule which requires the husband to receive 
 or sue for a debt owing to his wife before he can become 
 absolute owner of it, his right to her money funds is condi- 
 tional on some such act being done as shall "give the 
 husband, for some moment of time, absolute dominion over 
 the property without any concurrence of the wife" (a), or 
 shall give such control to his assignee (b) — or shall 
 rightfully change the fund into a sum or chattel in pos- 
 session in the hands of the husband or his assignee, as when 
 the former has covenanted to make to one who already 
 holds it on trust for the wife an assignment upon new 
 trusts, and the pre-existing trusts make it the duty of the 
 disponee to sell the fund, and he does sell it accordingly (c). 
 Consequently, a transfer into the name of the husband or 
 his assignee (d), or a receipt by the joint agent of husband 
 and wife (e) is sufficient — but not a transfer into the joint 
 names of the husband and wife (/) — nor a mortgage when 
 the fund remains in the joint names of the husband and 
 wife subject only to a stop order by the assignee (g). 
 
 On principle, as well as according to the opinion of the 
 Lord Chancellor in one of the best recent cases on this 
 subject (A), there is no distinction between a sale by the 
 husband and a mortgage by him. And it is not necessary 
 to the validity of a reduction into possession that the 
 husband should himself make or request it — reduction by 
 his assignee is sufficient (?'). But if a wife's interest be 
 reversionary, or be only for her own life, her husband 
 
 (a) Nicholson v. Drury B. E. Co., L. (e) Re Barber, L. R. 1 1 C. D. 442. 
 
 R. 7 C. D. 55. (/) Nicholson v. Drury B. E. Co., L 
 
 (6) Allday v. Fletcher, 1 D. G. & J. R. 7, Ch. 48. 
 
 82. GO Prole v. Soady, L. R. 3 C. D. 225. 
 
 ( c) Rawlins v. Birkett, L. J. 25, Ch. (A) A llday v. Fletcher, 1 D. G. & J. 9 1 . 
 837. (i) Cunningham v. Antrobus, 16 Sim. 
 
 (d) Cunningham v. Antrobus, 16 Sim. 436. As to reduction into possession 
 436 ; Burnham v. Bennett, 2 Coll. C. C. of the wife's equitable mortgage see 
 254. Michelmore v. Mudge, 2 Giff. 183.
 
 TRANSMISSION ON MARRIAGE. 
 
 59 
 
 Separate use: — 
 Its nature. 
 
 How termin- 
 ated. 
 
 cannot reduce it into possession (a), except as regards the 
 income to accrue during the subsistence of the marriage (b), 
 nor can she deprive herself of such an interest (a), even it 
 seems though the fund be charged upon land (c), except in 
 certain cases (d). 
 
 The wife's interests have also been protected by two New doctrines 
 modern doctrines, invented by the Courts of Equity. 
 
 The first of these is that any person in giving any kind 
 of property to a woman may provide that the beneficial 
 interest sha'll be held free from the rights and control of 
 any husband (e) to whom she may be married, or who may 
 afterwards marry her, or that it shall be free from those of 
 some specified husband or husbands (/). Such a direction 
 does not in any way impair the woman's power of dispo- 
 sition, and she therefore may get rid of the "separate use 
 clause," as it is called, by disposing of the fund to her 
 husband, or even by making a disposition to herself to hold 
 subject to her husband's rights; but in the absence of any 
 such disposition by her the clause effectually precludes 
 her husband's rights and control, whether she be married or 
 not at the time when the gift is made to her, and disentitles 
 him (if it be a fund, or other chose in action), from accru- 
 ing it by reducing it into possession (g). But he con- 
 tinues entitled to her personal estate on her decease (/*), 
 and probably also to an estate by the curtesy (i). An 
 intention that a woman shall take to her separate use may 
 be implied (J) (i). 
 
 Husband's 
 succession to. 
 
 May be 
 implied. 
 
 (i) The ancillary rule that a married woman can be restrained from alien- 
 ation does not fall under this head, but will be discussed further on. 
 
 (a) See Lewin on Trusts, (5th. Ed.) 
 532, where the subject is explained. 
 (6) Lewin on Trusts,(5th Ed.) 523 (/) 
 
 (c) Hobby v. Collins, 4 D. G. S. 289. 
 
 (d) 20 & 21 Vic, c. 57. 
 
 (e) Hawkes v. Hubback, L.R. II Eq.5. 
 
 (f) Moore v. Morris, 4 Drew. 33. 
 
 (g) Greeny. Carhill, L. R. 4 C.D.882. 
 (A) Authorities that the husband on 
 
 the death of the wife is entitled to her 
 personal chattels, whether in possession 
 or action, though settled to her separ- 
 ate use, Molony v. Kennedy ,10 Sim. 254; 
 Proudley v. Fielder, 2 M. & K. 57. 
 (i) Ante p. 44. 
 
 (j) Peacock's Trusts, L. R. 10 C. D. 
 490.
 
 CO 
 
 TRANSMISSION ON MARRIAGE. 
 
 When given by 
 ]a\v. 
 
 Equity to a 
 settlement. 
 
 Who can 
 enforce it. 
 
 How the 
 
 amount 
 
 determined. 
 
 And by law a married woman's earnings (a), her Savings 
 Bank Deposits (b), her Postal Annuities (c), her Consols (rf), 
 her Joint Stock Shares (e), and her Shares in a Friendly or 
 similar Society (/), if held in her own name, are to be hers 
 as if she were sole. And personal property of whatever 
 amount coming to her under an intestacy (g), and personal 
 property not exceeding ^"200 coming to her under a deed or 
 will (//), are to be for her separate use if they come to her 
 during the marriage, unless she was married before the 
 9th August, 1S70. And the income of rear property 
 descending (/) to her on an intestacy occurring after that 
 day is to be for her separate use, unless she was married 
 before that day. And Policies of Insurance upon her own 
 or her husband's life effected by her, and expressed on the 
 face of them to be for her separate use, are to take effect 
 accordingly (J). And Policies of Insurance effected by her 
 husband and expressed to be for the benefit of her and his 
 children, or any of them, are to take effect accordingly, and 
 her interest in them is to be for her separate use (/). 
 
 The second doctrine is that when a chose in action, a fund, 
 a life estate, or a chattel interest in a tenement, belongs 
 beneficially to a married woman, but is vested in trustees, 
 either she or they may require that such property, or a 
 reasonable part of it (according to the provision which may 
 otherwise exist for the wife and family) shall be settled 
 upon the wife and the issue of the marriage. If however 
 the wife dies without any such settlement having been 
 made, or required to be made, the issue themselves cannot 
 insist upon it (k). If the parties interested cannot agree, or 
 
 (a) 33 & 34 Vic, c. 93, s. 1. 
 
 (5) s. 2. 
 
 (0 8. 2. 
 
 (rf) s. 3. 
 
 (e) s. 4. 
 
 (/) s. 5. 
 
 GO s. 7. 
 
 (A) s. 7. 
 
 (i) s. 8. 
 
 0*) s. 10. 
 
 (*) As to the question what prop- 
 erty should be settled, see Lewin on 
 Trusts, (5th Ed.), 529 {b) (g) 530 (a), 
 531 CO 00 (/«), 533 (rf) 0) CO, 534 
 (A), 535, 536 (6) to (e). And as to 
 arrears of income Carr's Trusts, L. R. 
 12 Eq. 609. For a discussion of the 
 principles on which the doctrine is
 
 TRANSMISSION ON MARRIAGE. Gl 
 
 are legally incompetent to agree upon the precise propor- 
 tion of the fund to be so settled an equity suit is necessary 
 to determine it, but the issue of the marriage are not 
 considered in this sense interested (a); and as the trustees 
 are not bound to insist on the wife's "equity to a settle- 
 ment" (as it is called) unless she requires them to do so, it 
 follows that if the husband or those deriving under him can 
 agree with the wife and the trustees upon a proper propor- 
 tion, the matter may be arranged notwithstanding the 
 
 wife's disability of coverture. As the form of the settlement Form of the 
 .... . . T . settlement. 
 
 in this case is an important conveyancing question, 1 have 
 
 thought it desirable to collect the recent cases on that 
 
 subject (b). 
 
 founded see Lewin, 529 to 53G. As to (a) Wallace v. Auldjo, 1 D. G. J. S. 
 
 the proportion to be settled — that one- G43. 
 
 half will generally he settled, see Spirett (6) Oliver v. Oliver, L. R. 10 C. D. 
 
 v. Willows, L. R.l Ch. 520; when the 765; Spirett v. Willows, L. R. 4 Ch. 
 
 whole will be settled, see Taunton v. 407, and on another point L. R. 1, Ch. 
 
 Morris, 48 L. J. Ch. 408; Re Suggit's 520; Saggit's Trusts, L. R. 3 Ch. 215; 
 
 Trusts, L. R. 3 Ch. 315; when none Croxton v. May, L. R.9 Eq. 404; Walsh 
 
 will be settled, Giacometliv. Willows, L. v. Wason, L. R. 8 Ch. 482; Corky v. 
 
 R. 1 Ch. 520. Stafford, 1 D. G. & J. 238.
 
 ( 62 ) 
 
 CHAPTER VII. 
 
 CONVEYANCING MODIFICATIONS OF THE LAW AS TO 
 
 DEVOLUTION ON DEATH OR MARRIAGE. 
 
 Generally. 
 
 Marriage 
 settlements — 
 Their purposes. 
 
 It seems unnecessary to say more respecting the rules of 
 law as to the devolution of property on death or marriage. 
 I will shortly glance at those deviations from them by 
 special agreement, which the practice of Conveyancers 
 (founding itself on the necessities of mankind) has sanct- 
 ioned; for it is a remarkable feature of English Jurispru- 
 dence (and in the magnitude which the system has attained 
 is probably peculiar to it) that (as the alterations in our 
 law have not kept pace with the changes in our social 
 condition) our lawyers have taken upon themselves to 
 suggest (for the adoption by special agreement of parties 
 entering into any of the complicated relationships necessary 
 in civilized life) those rules which ought to be formulated 
 once for that by an Act of Parliament, and rendered, by 
 legislation, universally binding (a). 
 
 On an intended marriage it is usual for the property of 
 the intending husband and wife, or a competent part of it, 
 to be settled, and that with two objects — first, to secure 
 the property so that neither the parties themselves nor 
 their creditors may be able to deprive them or their chil- 
 dren of it — secondly, to attach to it those incidents, and 
 make it devolve in that manner which the exigencies of 
 modern society require. The policy of the law in permit- 
 ting the partial accomplishment of the former of these 
 objects, and the extent to which it is permitted, will be 
 discussed when I come to treat of priorities. We are now 
 concerned only with the latter. 
 
 (a) See Preface.
 
 CONVEYANCING MODIFICATIONS OF THE LAW, &C. C3 
 
 And here we are at once met by the broad distinction Their kinds, 
 between the settlement of an estate which it is desired to 
 keep together for the purpose of maintaining the dignity of 
 a family, and which therefore must be made to devolve in 
 a course of entail, and the settlement of an estate which is 
 being settled without any such object, and in which, 
 therefore, the preference of the elder son over the younger, 
 and of males over females, is inappropriate. Those of the Strict settle- 
 former class are termed "strict settlements." It is necessary f ree holds: 
 to the full accomplishment of their object that the property Their P ur P<> ses 
 should be perpetually preserved in the male line by means 
 of an unbarrable entail, or what is practically the same 
 thing, a perpetual succession of life estates ; but as the law, 
 for reasons which will be discussed when we come to treat 
 of restraints on alienation, authorizes the barring of entails 
 and of estates lying behind an estate tail, and treats as 
 void all limitations by which vesting is suspended for a 
 period longer than twenty-one years after the death of some 
 specified person (or of the survivor of some specified 
 persons, all of whom were alive when the disposition was 
 made) (a), the draughtsman must endeavour to accomplish 
 as much of the object of the parties as he can without 
 running counter to these rules of law. With this object he Their main 
 must ascertain who is to be the ancestor upon whom the c auses- 
 settlement is to be made, and who amongst the descen- 
 dants of that ancestor are already born or (what the law 
 for this purpose treats as the same thing) begotten (b) ; and 
 the simplest method of framing the settlement would be to 
 arrange these in the order in which they would take if a 
 limitation were made to the ancestor in tail male, and then 
 to give them successive life estates in that order, appending 
 to each life estate a limitation to the first and other sons of 
 the life-tenant successively in tail-male, and of course taking 
 care when anyone's life estate is followed by life estates 
 
 (a) Cadell v. Palmer, 1 C. & Fin, 372 ; (6) Cadell v. Palmer, 1 C. & Fin. 272. 
 Cole v. Sewell, 2 H. L. C. 232.
 
 64 CONVEYANCING MODIFICATIONS OF THE LAW, &C. 
 
 Difficulties in 
 deciding how 
 to frame them. 
 
 How difficul- 
 ties may be 
 obviated by 
 alteration in 
 the law. 
 
 to his sons to insert limitations in tail to their issue before 
 those to his issue. But if only this were done, neither 
 females, nor males claiming through females, could become 
 entitled, while if these were to be admitted in the same 
 manner as if they were inheriting under an entail the estate 
 would become divisible into shares amongst co-heiresses 
 and their descendants, and one object of the settlor would 
 be defeated. To gain that object the draughtsman sometimes 
 inserts a clause («) requiring every person who may become 
 entitled in possession under the settlement, or may marry 
 a female so entitled, to assume the name and arms of the 
 first life tenant. This puts females substantially in the 
 position of males, and estates in tail male can then be 
 limited to them in priority to the heirs general of the body 
 of males ; but preference is still given to the male line, and 
 accordingly the estates in tail^ male are limited to the 
 younger males of any given branch in preference to the 
 elder females. After all the estates in tail male have thus 
 been exhausted, estates in tail general are limited to the 
 same persons and in the same order. To this form of 
 limitation it has been objected that it may carry the estate 
 backwards and forwards from one branch of the family to 
 another, as from the son to the daughter and from her to 
 the son's daughter (b), and it has been therefore advised 
 that the limitations in tail general to the sons should 
 precede the limitations in tail male to the daughters. But 
 this objection lies equally against the practice of limiting 
 to the younger son in tail male before limiting to the elder 
 son in tail general. However, this objection is considered 
 by Davidson sufficient to guide the framing of his prece- 
 dents. These difficulties could be obviated by a slight 
 alteration of the law as to the descent of estates tail, which 
 might with great propriety be assimilated to the law 
 
 (a) 2 Prideaux's Conv., (9th Ed.) 496 ; 
 3 Davidson's Conv., (3rd Ed.) 1141-3. 
 
 (6) 3 Davidson's Conv., 328-9.
 
 CONVEYANCING MODIFICATIONS OF THE LAW, &C. 65 
 
 already subsisting respecting the descent of the Crown (a). 
 
 In framing these settlements provision must also be made T . neir subor- 
 dinate clauses, 
 for the maintenance of the wife and for portioning those 
 
 children who do not obtain estates in the settled property. 
 Instead of giving the wife a right analogous to her common 
 law right of dower it is found convenient to limit to her a 
 rent-charge to commence at her husband's death and con- 
 tinue during her life; and the persons entitled after the 
 death of the first life-tenant are required to pay specified 
 sums as portions to such of his children as do not derive 
 estates under the settlement; and powers are inserted 
 authorizing those who may be from time to time in posses- 
 sion as life tenants to grant similar jointures to their own 
 wives and similar portions to their children. To secure (Suggestions 
 the payment of the jointure and portions it would be proper tne method of 
 
 to authorize the parties interested or the trustees to sell or secur ing 
 
 portions.) 
 mortgage the estates, or a competent part of the property, 
 
 to raise these sums; but the practice is, not to confer a 
 simple power, but to seek the same end by the more clumsy 
 expedient of limiting a term of years to the trustees. This 
 no doubt gives them an authority to enter and receive the 
 amount out of the income, as well as a power to sell or 
 mortgage; but this authority also, if it be of sufficient 
 importance, might be conferred by express provision, by 
 which the fiction of an outstanding legal estate would be 
 rendered altogether unnecessary. 
 
 When it is desired to make a strict settlement of a chattel, Strict settle- 
 as for example a long term of years in land, or an ancestral ^^^ls 
 portrait, the law does not permit an entail, but the object 
 can be very nearly gained by vesting the legal estate in 
 trustees and limiting in the beneficial estate the same life 
 interests as one would do on the settlement of an estate in 
 fee-simple, appending after each, not a limitation in tail, 
 but a limitation to whichever of the sons of the life-tenant 
 
 (a) Co. Litt. 15b.
 
 66 CONVEYANCING MODIFICATIONS OF THE LAW, &C. 
 
 Settlement in 
 equal shares. 
 
 Its earlier 
 limitations. 
 
 shall first, either attain the age of twenty-one years, or die 
 under it survived by issue of his own but not by issue of an 
 elder brother nor by an elder brother who shall after- 
 wards attain twenty-one or leave issue. More generally 
 however property of this nature is settled in the same deed 
 with a fee-simple estate, and when this is so it is usual 
 simply to provide that the beneficial interest shall go along 
 with the freehold estate so far as the rules of law and 
 equity will permit (a). 
 
 When the object is to settle a fund or lands which it is 
 not desired to preserve for the aggrandizement of a family 
 the frame of the settlement is quite different (b). After the 
 life estate to the original ancestor a life estate is generally 
 limited to his wife (or if such ancestor be a woman, to her 
 husband). This is followed by a limitation to such of the 
 issue of the marriage and in such manner as the parents 
 may by deed appoint, and subject thereto as the survivor 
 may by deed or will appoint, and (subject to any appoint- 
 ment of either kind) to such of the children of the marriage 
 as shall attain twenty-one (or if female marry under that 
 age) equally, (which last limitation of course applies to 
 children who die in the lifetime of their parents as well as 
 to children who survive them — the representatives or 
 alienees of the latter taking, and they themselves having 
 Its subordinate a reversionary interest in their lifetime). A qualification is 
 added that in calculating the share to be taken by each 
 child, the amount (if any) which that child or any of his 
 issue may have acquired under an appointment shall be 
 taken into account unless the appointment directed the 
 contrary, and clauses are subjoined authorizing the trustees, 
 with the consent of the life-tenants or the survivor of them, 
 (and after the death of such survivor at their own discretion), 
 to raise and apply for the advancement (c) in life of the 
 
 (a) 2 Prideaux's Conv (9th Ed.) 504- &c; 3 Davidson's Conv., 714. 
 5; 3 Davidson's Conv., 1 179-80, 1224. (c) See re Breed's Will. L. R. 1 C. D. 
 
 (6) 2 Prideaux's Conv. (9th Ed.) 201 226.
 
 CONVEYANCING MODIFICATIONS OF THE LAW, &C. 67 
 
 issue any proportion not exceeding one-half of the amount 
 
 which such issue may be presumptively entitled to. A 
 
 clause authorizing the application of the income to the 
 
 maintenance of the infant issue was formerly inserted, but 
 
 this is one of the few clauses which have been formulated 
 
 by legislation (a). In case there should be no issue who Its ultimate 
 
 should acquire a vested interest, the estate is given to the imi atl0OS • 
 
 person who would have been entitled if the settlement had 
 
 not been made; but if that person be a married woman or 
 
 be the woman whose marriage is contemplated by the 
 
 settlement, it is necessary for technical reasons to limit it 
 
 not to her wholly and simply, but to such persons as she 
 
 may appoint (b), and in default of appointment to herself 
 
 if she survive her husband, but if not, then to the persons 
 
 who would have been entitled if she at her death had been 
 
 absolutely entitled and had died intestate without ever 
 
 having been married (c). 
 
 Wills also have for their object to correct the imper- Wills, 
 fections of the law respecting the devolution of property, 
 and when a testator is owner of a considerable estate it is 
 also part of his object to effect the purposes of a settlement ; 
 but in a will it is usual (and when no power to appoint is 
 conferred on the life-tenant it is necessary, as it also is 
 when any of the children are dead at the date of the will 
 and have left issue, and when the event of any of them dying 
 in the testator's lifetime and leaving issue is meant to be 
 provided for by the will rather than by a codicil,) to limit 
 the estate not merely to the children but also to the issue 
 living at testator's decease of such children as shall then be 
 dead ; but when the class to whom the bequest &c. is made 
 are children or descendants of the testator himself, the 
 shares of such of them as die in his lifetime but leave issue 
 who survive him will not lapse, but will be treated as part 
 
 (a) 23 & 24 Vic, c. 145, s. 26; Re (c) See as to the exact form of these 
 Cotton, L. R. 1 C. D. 232. [580. limitatious,2Prideaux'sConv.(9thEd.) 
 
 (b) See Willocks v. Noble, L. R. 7 H. L. 208 ; 3 Davidson's Conv., 184, 188.
 
 68 CONVEYANCING MODIFICATIONS OF THE LAW, &C. 
 
 of the estate of such deceased children {a). But as to 
 those children who survive the testator but die before the 
 period of distribution, it is usual to limit their shares to 
 themselves rather than to their issue, so that they may be 
 entitled to reversionary interests, which they can, if they 
 find it necessary, dispose of without being hampered by the 
 condition that they must survive that period. The death of 
 the life-tenant is, of course, the usual period of distribution. 
 
 (a) 7 Wm. IV & 1 Vic, c. 26, s. 33.
 
 ( 69) 
 
 CHAPTER VIII. 
 
 TRANSMISSION ON OTHER EVENTS THAN MARRIAGE. 
 
 As to transmission on Dissolution of Marriage or Judicial Transmission 
 
 . . on Divorce. 
 
 Separation. — The High Court (Probate &c. division) is Powers of 
 
 authorized to settle the property of an adulterous wife on ourt ' 
 the innocent party and the children (a), and on any disso- 
 lution of marriage it may make such orders as to how 
 the property comprised in any settlement (b) shall be applied 
 for the benefit of the parties to the marriage and their 
 children as it shall think fit (c) ; and though the Act leaves 
 the precise modifications to the discretion of the Court, yet 
 some general rules have been laid down by the Court for 
 its own guidance (d). But the Court is not authorized to 
 modify the ancillary provisions of the settlement (such as 
 the power to appoint new trustees (e) ), nor to make varia- 
 tions which cannot tend to the benefit of the children of 
 the marriage or their parents (/), nor to deprive the children 
 of any interest. 
 
 In the absence of modifications made by the Court under Operation of 
 ,,.,._ . , dissolution. 
 
 the above statutes the dissolution of a marriage makes no 
 
 difference in the rights of the parties under the settlement 
 
 (h), except that by the dissolution the wife becomes sole, 
 
 and consequently the husband cannot afterwards reduce 
 
 her choses in action into possession (i). But the rule was 
 
 not thus settled until after several discordant decisions. 
 
 (o) 21 & 22 Vic, c. 85, s. 45, amend- P. & M. 447, and other but less impor- 
 
 ed by 23 & 24 Vic, c. 144, s. 6. tant cases. 
 
 (6) As to what is a settlement Wor- (e) Hope v. Hope, L.R.3 P.& M. 226. 
 seley v. Worseley, L. R. 1 P. & M. 648. (/) Sykesv.Sykes,L.R.2 P.&M.163. 
 
 (c) 22 & 23 Vic, c. 61, s. 5, amended (g) Crisp v. Crisp, L. R. 2 P. & M. 426. 
 by 41 Vic, c 19, S. 3. (h) Fitzgerald v. Chapman, L. R. 1 C. 
 
 (d) Gladstone v. Gladstone, L. R. 1 P. D. 563; Burton v. Sturgeon, L. R. 2 C. 
 D. 442; Maudsley v. Maudsley, L. R. 2 D. 318. 
 
 P. D. 256 ; March v. March, L. R. 1 P. (i) Prole v. Soady, L. R. 3 Ch. 220. 
 & M. 440 ; Symondt v. Symonds, L. R. 2
 
 TRANSMISSION ON OTHER EVENTS, &C. 
 
 70 
 
 Operation of 
 judicial separ- 
 ation, &c. 
 
 Transmission 
 on conviction 
 of Treason or 
 Felony. 
 Transmission 
 on Bankruptcy 
 
 When it 
 operates. 
 
 What passes on 
 bankruptcy. 
 
 On a Judicial Separation (a), or Protection Order (b), the 
 wife becomes entitled to her property free from her 
 husband's control and engagements, and continues so even 
 after a return to cohabitation, but she becomes so only in 
 respect to property which she may acquire or which may 
 "come to or devolve upon her," expressions which literally 
 do not include property which she already has at the time 
 of the separation (c). 
 
 Transmission on conviction for Treason or Felony is regu- 
 lated by a recent and elaborate statute (d). 
 
 Transmission on Bankruptcy has for its object to insure 
 that the property of an insolvent shall be distributed equally 
 amongst his creditors. But, to prevent the necessity of a 
 complicated investigation into his insolvency in each par- 
 ticular case, the law has determined that certain acts 
 indicative of insolvency shall be necessary and sufficient to 
 ground an Adjudication of Bankruptcy (e). It is not 
 necessary here to enumerate all these acts. The convey- 
 ance of his property upon trust for his creditors is one (/). 
 A fraudulent conveyance (g), (that is a disposition over 
 which bankruptcy-creditors would, as explained in the 
 chapters on Priorities, be entitled to priority) is another (h). 
 
 Upon the bankruptcy, all property to which the bankrupt 
 is, or since the time to which the bankruptcy relates (i) was 
 entitled, passes (subject to exceptions discussed in the 
 chapters on Priorities) to the Bankruptcy-trustee on trust 
 for the benefit of the bankruptcy-creditors. This includes 
 beneficial interests in property of which the legal estate is 
 outstanding (J) ; but rights to present to ecclesiastical bene- 
 fices (k) are excepted, and so are certain tools, bedding, and 
 wearing apparel (/), and so by judiciary law are such sums 
 
 (a) 21 & 22 Vic, c. 85, s. 25. 
 
 (b) 21 & 22 Vic, c. 85, s. 21 fin, 41 
 Vic, c 19, s. 4. 
 
 (c) 21 & 22 Vic, c 85, s. 25. 
 
 (d) 33 & 34 Vic, c 23. 
 (e)32 & 33 Vic, C. 71, S. 6. 
 (/) lb- 
 
 0)32 & 33 Vic, c. 71, s. 6 (1). 
 
 (h) s. 6 (2). 
 
 (i) s. 11. 
 
 (j) s. 15 (3), ss. 87, 88, 89, 90. 
 
 (fc)s. 15 (4). 
 
 (/) s. 15 (2).
 
 TRANSMISSION ON OTHER EVENTS, &C. 71 
 
 earned by the bankrupt as may be necessary for the main- 
 tenance of himself or his family (a), and so is the legal 
 estate in all property in which any other person besides the 
 bankrupt is interested (b). The authority to exercise all 
 powers exercisable by the bankrupt except fiduciary ones 
 
 (c) also passes, and in the case of bankrupts who are traders 
 
 (d) all corporeal personal chattels, and all debts due to the 
 bankrupt in the course of his business (e) pass, no matter 
 to whom they may belong, if the true owner has permitted 
 them to remain until the adjudication, or until the time to 
 which it relates (/), in the possession, order, or disposition 
 of the bankrupt under circumstances enabling him to 
 appear as the owner, or as authorized to dispose of them, 
 (g) except when the title of the true owner himself is derived 
 under a disposition made to him by the bankrupt, and regis- 
 tered under the Bills of Sale Act, 1878, (h). Liquidation by What passes on 
 arrangement passes the bankrupt's property in the same 1<lm a 10n ' 
 way as bankruptcy (i) does, but whether it also transfers 
 
 chattels belonging to some other person, but which are in 
 the bankrupt's possession, order, or disposition, has been 
 considered doubtful. The statute does not expressly enact 
 that they shall pass, for it only provides that the property 
 of the bankrupt shall pass on a liquidation ; but in the first 
 of the two cases cited in the note (J) it seems to have been 
 assumed that these also pass while the second indicates the 
 contrary. If the bankrupt had originally been owner of 
 the goods and had ceased to be so by disposing of them to 
 the person who is now the true owner, they would probably 
 pass under a later clause (k) in the section. It is always 
 
 (a) See re Doxvling exp. Bunks, L. R. C. P. 334. 
 
 4 C. D. 689 ; Wadling v. Oliphant, L. R. (J) 32 & 33 Vic, c. 7, ss. 15, 11. 
 
 1 Q. B. D. 145. (j»)s. 15. 
 
 (6) 32 & 33 Vic, c. 71, s. 15 (1). (A) 41 & 42 Vic, c 31, s. 20. 
 
 (c) s. 15 (4). (0 32 & 33 Vic, c. 71, s. 125 (5). 
 
 (rf) s. 15 (5). 0) Meggy v. Imperial Disct. Co., L. 
 
 (e) As to how these can he in his R. 3 Q. B. D. 711; Heslop v. Baker, 6 
 
 order or disposition while belonging to Ex. 740. 
 
 another, see Cooke v. Hemming, L. R. 3 (it) 32 & 33 Vic, c 71, s. 125 (5).
 
 72 TRANSMISSION ON OTHER EVENTS, &C. 
 
 possible that a bankrupt may be owner of property 
 burthened in a way which may render the ownership of it 
 a loss rather than a benefit — for example, a lease at an 
 excessive rent, or a contract of which the part still unper- 
 formed is more beneficial to the opposite party than to the 
 bankrupt's estate. The bankruptcy-trustee is entitled to 
 disclaim (a) all such property at any time, even after he 
 has taken possession of it and exercised acts of ownership 
 and endeavoured to sell it, unless the party interested in 
 the performance of the burthensome duties requires him to 
 decide whether he will disclaim or not and he neglects for 
 twenty-eight days (or such further time as the Court may 
 allow) to make his decision, in which case he becomes 
 precluded from afterwards disclaiming (&). The effect of 
 the disclaimer is to deprive the trustee of the rights (c) to 
 which he would be entitled, as well as to exonerate him 
 from the liabilities to which he would be subject, if he 
 retained the property, and also to put an end to the 
 property in question, or the bankrupt's interest in it, as 
 from the date of the order of adjudication (d). As a rule, 
 the only remedy of the party entitled to the burthens is to 
 prove under the bankruptcy for the damages he has 
 sustained, and this is in particular the case when the 
 subject in question is a contract the performance of which 
 afterwards ceases to be beneficial to the estate (e); but 
 when the property in question is a distinct subject (such as 
 a leasehold estate), and the bankruptcy trustee has entered 
 upon it, his omission to disclaim binds him personally (/), 
 entitling him of course, in cases where his act was a proper 
 one, to reimbursement out of the bankrupt's estate. Until 
 he enters he is not personally liable (g), though he is 
 
 (a) 32 & 33 Vic , c. 71, s. 23. (e) Re Sneexum exp. Davis, L. R. 3 
 
 (6) 32 & 33 Vic, c. 71, s. 24. C. D. 463. 
 
 (c) Exp. Brook re Roberts, L. R. 10 (/) Exp. Dressier re Solomon, L. R. 
 
 C. D. 100; Exp. Stephens re Lavks, L. 9 C. D. 252. 
 
 R. 7 C. D. 127. (sr) Impliedly said, Exp. Dressier, 
 
 (<0 32 & 33 Vic., c. 71, s. 23. L. R. 9 C. D. 255.
 
 TRANSMISSION ON OTHER EVENTS, &C. 
 
 73 
 
 Transmission 
 on close of 
 Bankruptcy. 
 
 precluded from disclaiming (a), in the same cases as if he 
 had entered. In such a case the landlord &c. appears to 
 be entitled to prove in the bankruptcy but to no other 
 remedy. 
 
 The Close of a Bankruptcy revests in the debtor so 
 much (if any) of his property as may not have been 
 required for the purpose of satisfying his debts and the 
 costs of the bankruptcy. But the possibility of any surplus 
 remaining has been held not to give him such an interest 
 in the estate as to entitle him to take proceedings for its 
 protection (b). The close of the bankruptcy also prevents 
 the bankruptcy-trustee from acquiring any property which 
 may afterwards accrue to the bankrupt, even though the 
 latter may not have obtained his order of discharge (c). 
 
 Judicial decisions respecting the ownership of property 
 also transmit it to the person in whose favour they were 
 pronounced ; but it was a maxim of the Common Law that 
 jus moritur nunquam, and the idea of a transfer of ownership 
 valid as against all mankind was unknown to that law, 
 though admitted in the case of Ships by the Court of 
 Admiralty (d), and in Condemnations by the Court of 
 Exchequer (e). In recent times the Land Judges (/) in 
 Ireland and the Land Office in England (g) have been 
 authorized to give a title of this character by proceedings 
 of a quasi judicial nature. In other cases a judicial decision 
 merely transfers the interests of those who are parties to 
 the suit, or who (by whatever mode of procedure may be 
 usual in the Court in which the case arises) are made 
 cognizant of the suit, and thus enabled to defend their 
 rights, and those who by some disposition or transmission Lis pendens 
 
 Transmission 
 by Judicial 
 decision. 
 
 (a) 32 & 33 Vic, c. 71, s. 31; Re 
 Sneezum, L. R. 3 C. D. 463. 
 
 (6) Exp. Sheffield re Austin, L. R. 10 
 C. D. 434. 
 
 (c) Re Petitt's Estate, L. R. 1 C. D. 
 478. 
 
 (0 2 Sm. L. C. 455. 
 
 (e) Cooke v. Sholl, 5 T. R. 255. 
 
 (/) 2 1 & 22 Vic, c 72 ; 23 & 24 Vic, 
 c 82 ; 28 & 29 Vic, c. 88 ; 29 & 30 Vic, 
 c.99;40 & 41 Vic, c 57, esp. s. 7. 
 
 (<7) Under the Land Transfer Act 
 38 & 39 Vic, c 87 ; and under the Land 
 Registry Acts 25 & 26 Vic, c 53; 25 
 & 26 Vic, c. 67 j and see 38 & 39 Vic, 
 c 87, s. 125.
 
 74 
 
 TRANSMISSION ON OTHER EVENTS, &C. 
 
 When they 
 
 bind 
 
 purchasers. 
 
 occurring since the commencement of the suit, but before 
 its termination, derive title to the subject of it under one or 
 some of such parties &c. (a) ; and even these are not bound 
 by a judgment in Ejectment, because in that action the 
 only point in controversy is the right to the immediate (and 
 it may be quite temporary) possession of the land (b), but 
 they are bound by the judgment in (probably) all actions 
 in which the beneficial interest only is affected, whether or 
 not accompanied by an order for the conveyance of the 
 legal estate; and I apprehend that they are also bound in 
 actions in which the right to dower, or the right to present 
 to an ecclesiastical benefice, or a right of way, or the like, is 
 in question. But the rule has an important exception. 
 For those who acquire the property for valuable consider- 
 ation in ignorance of the fact that the title to it is in 
 controversy in a pending action are not bound by the 
 result of that action unless it has (before they acquired the 
 property) been registered as a lis pendens (c). But regis- 
 tration as lis pendens does not confer a right. It merely pre- 
 vents such right as may already exist from being defeated 
 by a sale or mortgage. 
 
 (a) Bellamy v. Sabine, 1 D. G. & J. Vic, a 125, s. 93; and as to Ireland 16 
 
 566 (a leading case). & 17 Vic, c 113, s. 225; 19 & 20 Vic, 
 
 (6) Harris v. Mulkern, L. R. 1 Ex. D. c 102, ss. 94, 95. 
 31; 15 & 16 Vic, c 16, s.207; 17 & 18 (c) 2 & 3 Vic. c 11, s. 7.
 
 ( 75 ) 
 
 CHAPTER IX. 
 
 NATURE OF CONTRACTS, REPRESENTATIONS, AND DISPOSITIONS. 
 
 In English law the distinction between a disposition of Distinction 
 
 between 
 property and a contract to dispose of it is very nearly Contracts and 
 
 obliterated. This is due primarily to historical causes. Dis P 0Sltl0ns - 
 
 The common law, as is well known, required verba de Contract— its 
 ' * operation on 
 
 prcescnti {a) and appropriate formalities, — in some cases the Legal 
 
 writing under seal (b), in others a public ceremony (c), in 
 
 others an entry into possession (d), — as necessary to the 
 
 disposition of an estate, though in the case of terms of 
 
 years formalities were dispensed with to a considerable 
 
 extent (e) on account of the then small importance of such 
 
 interests. A mere executory contract had (at law) no 
 
 further effect than to entitle the promisee to pecuniary 
 
 damages (/) against the promisor, and an executory 
 
 contract not embodied in a deed had not even that effect 
 
 until the idea occurred to some sage of the law that a 
 
 breach of promise was a sort of trespass, and might 
 
 therefore be remedied by an action of trespass on the 
 
 case for fraudulently contriving to deceive and defraud 
 
 the promisee by making and breaking the promise (g). 
 
 The Courts of equity, however, (regarding more the Contract— its 
 
 obligations of conscience than the simplicity of titles), ^Beneficial 
 
 considered (and still consider) the parties as having the Interest. 
 
 same rights as if all had been done which ought to have 
 
 (a) See Sugd. Pow.8, pi. 11 J?n;Harg. Foley v. Burnell, 4 B. P. C. 34; Doe v. 
 
 Note 5 to Co. Litt. 48a. Maberley, 6 Carr. & P. 126; Doe v. 
 
 (6) Co. Litt. 9b. Tatchell, 3 B. & Ad. 675; Stevenson v. 
 
 (c) Co. Litt. 49a., Litt. s. 59. M. Liverpool. L. R. 10 Q. B. 81. 
 
 (<0 Co. Litt. 270a. (/) Fonb. Eq. Bk. I ch. 1, s. 5. 
 
 (p) As to assignments 4 Cru. Dig. (y) Authorities are to be found in 
 
 160-1. As to assents by executors Coke's Entries and Spence on Equity.
 
 76 THE NATURE OF CONTRACTS, REPRESENTATIONS, &C. 
 
 Contract — its 
 operation on 
 the Use. 
 
 Covenant to 
 stand seized 
 and Bargain 
 and Sale. 
 
 Disposition of 
 an estate 
 which the 
 disponor has. 
 
 been done (a), and therefore treated (and still treat) a 
 contract (when it is specifically enforcible (b)) as tantamount 
 to a disposition of the beneficial interest binding not only 
 the parties but through them the estate. Consequently a 
 contract, (and of course a binding representation and a 
 defective disposition fall under the same rule,) has, (if it 
 be specifically enforcible (c)), the effect of passing as from 
 the moment of its execution (d) the beneficial property to 
 the purchaser, save that when the contract merely is that 
 a party shall have an option to purchase it does not pass the 
 property until such option is exercised (e). But this rule 
 holds good only with respect to the beneficial interest, and 
 does not prevail against those who, by reason of having 
 obtained the legal estate (/), or otherwise (g), are entitled 
 to priority over the purchaser in question. Still though a 
 contract to convey the property can never pass the legal 
 estate (h), yet if a covenant to "stand seized," (that is a 
 covenant to be trustee for another or to permit him to 
 enjoy the property as if one had conveyed it to him,) be 
 made for the benefit of the wife, son, &c, of the covenantor, 
 or for value, in which latter case it is termed a " bargain 
 and sale" (i), the law (i) will transfer the legal estate to 
 the covenantee. 
 
 And, as a contmel is treated substantially as a disposition 
 of the beneficial interest, so an instrument intended to 
 operate as a disposition, (but which by reason of the absence 
 
 (i) And therefore requires enrolment under the 27 II. VIII, c. 16. 
 
 (a) I Fonhl. Eq. 619; Sugd. V. P. 
 175 (i); 1 Franc. Max. 13. 
 
 (6) Holroyd v. Marshall, 10 H. L. C. 
 191. And see Phillips v. Silvester, L. 
 R. 8 Ch. 176. 
 
 (r) Holroyd v. Marshall, 10 H. L. C. 
 191. And see Phillips v. Silvester, L. 
 R. 8 Ch. 176. 
 
 (</) Magennis v. Fallon, 2 Moll. 588 
 (aleadingcaseon the law of Vendor and 
 Purchaser), and the cases cited further 
 on as to the right to accretions. 
 
 (e) Edwards v. West, L. R. 7 C. D. 
 858. 
 
 (/) See below in the chapters on 
 Priorities. 
 
 (g) As by reason of the prerogative, 
 see Broughton v. Davis, 1 Pri. 216, and 
 the cases there cited. 
 
 (ft) Sugd. Pow. (8th Ed.) 26. 
 
 (»') 27 H. VIII, c. 10. Ace. Bal- 
 merin v. Pyke, 11 Mod. 277, which 
 decision may be depended on as to this 
 point though erroneous as to another.
 
 THE NATURE OF CONTRACTS, REPRESENTATIONS, &C. 77 
 
 of the necessary formalities or otherwise cannot have that 
 operation), will be treated, (at least for most purposes), as 
 a contract, (or as implying a contract,) to make a perfect 
 disposition to the effect intended (a). But of course a 
 gratuitous informal disposition cannot (i) (b) be made 
 available any more than a gratuitous contract, except in 
 case of a defective execution of a power (c), as to which the 
 law was settled before the modern doctrine as to the 
 necessity of valuable consideration became rooted. And Disposition of 
 in like manner an instrument purporting to dispose of an *j,ich the 
 estate to which the disponor is not entitled, or disposing of disponor has 
 
 ... . .... r r not at the time. 
 
 an estate his interest in which is afterwards defeated (a), AstotheBene- 
 .will, if he afterwards acquires or re-acquires an interest in ficial Interest - 
 it, operate, so far as specific enforcement is concerned (e), 
 as a contract to dispose of the interest so acquired; and 
 will, if he do not acquire such an interest, or if the property 
 do not exist, be treated as binding him to convey other 
 property of equal value (/). But in general such a defective As to Damages, 
 disposition will not entitle the disappointed party to 
 pecuniary damages, for a conveyance does not in our law 
 imply any covenant for title (g); and if the property do 
 not exist, even an express covenant for title is void (h). 
 But if the disposition contain a statement that the disponor As to the Legal 
 is already owner of the estate (*); or if it be a lease, and Estoppel), 
 the lessee have entered (J) ; or probably if it be a feoffment, Jf^^f"* 
 
 (i) By an "informal" disposition the reader is to understand a disposition 
 which the disponor could have made perfectly formal (fc). This subject will 
 be more fully discussed in a subsequent chapter. 
 
 (a) As to specific performance, Par- (g) Clare v. Lamb, L. R. 10 C. P. 334; 
 
 Jfcerv. Tasivell, 2 D. G. & J. 559; Cases Sugd. V. P. 429 (/) (g) qualified by 
 
 cited in Sugd. V. P. 744 (A) (i) 745 (/); ib. (r) (rf); and see Manson v. Thacker, 
 
 Came v. Mitchell, 10 Jur. 912; As to L. R. 7 C. D. 620; and Besley v. Bestey, 
 
 pecuniary damages, Rollason v. Leon, 7 L. R. 9 C. D. 103. But a lease does, 
 
 H. & N. 73. Mostyn v. West Mostyn, Sfc. Co., L. R. 1 
 
 (6) Dillon v. Coppin, 4 M. & Cr. 647. C. P. D. 145 ; Wilsonv. Finch Hatton, L. 
 
 (c) Sugd. Pow., 8th Ed., 533 (/) 534- R. 2 Ex. D. 336. 
 
 5, Kennard v. Kennard, L. R. 8 Ch. 227. (h) Carey v. Stafford, 3 Swan. 427n. 
 
 (rf) Noel v. Beicley, 3 Sim. 103. (t) Bensley v. Burdon, 2 S. & St. 516, 
 
 (c) Conceded Smith v. Osborne, 6 H. Heath v. Crealock, L. R. 10 C. D. 30. 
 
 L. C. 376, where an important qualifi- (j) Co. Litt. 47b. 
 
 cation of the rule was established. (k) Kekewich v. Manning 1 D. G. M. 
 
 (/) Carey v. Stafford, 3 Swau. 427n. G. 176. 
 
 described.
 
 78 THE NATURE OF CONTRACTS, REPRESENTATIONS, &C. 
 
 Whom estoppel 
 binds. 
 
 Operative 
 words will not 
 bind (by estop- 
 pel) the Legal 
 Estate. 
 
 Representation 
 explained. 
 
 (that is a conveyance of an estate of freehold,) and be 
 accompanied by livery of seizin, (that is by actual entry 
 upon the premises and delivery of possession of them — no 
 one who denies the validity of the livery being on the 
 premises, — or by presence within sight of the premises and 
 delivery there of possession and subsequent entry by the 
 original feoffee in the lifetime of the feoffor (a) (i), and if, 
 (in each case), the parties are mutually bound, it will 
 preclude them from denying that the estate has passed; 
 and consequently will, so far as the rights of the one party 
 against the other are concerned, retroactively pass not 
 only the beneficial but the legal estate if the vendor should 
 afterwards acquire it. And it will thus preclude not only 
 the parties, but all who derive under either of them, 
 including those who derive for valuable consideration (b), 
 and who were ignorant of and had no means of knowing of 
 the disposition which thus operates by estoppel (c) — a point 
 in which estoppel affecting the legal estate differs from 
 contract. But persons who claim by a title which neither 
 of the parties to the estoppel was entitled to defeat are at 
 liberty to treat the conveyance as inoperative (c). And the 
 operative words in a mere deed of conveyance, whether it 
 be a release (d) or a grant (e), cannot have this peculiar 
 operation (n). The mention of this peculiar operation of an 
 
 (i) This effect is unquestionably produced by a feoffment with livery made 
 before 1st October, 1845. Whether it is produced by one made since then 
 depends on whether the 8 & 9 Vic, c. 106, s. 4, which prevents a feoffment 
 from operating wrongfully has also by implication the effect of preventing it 
 from operating by estoppel, a question on which there is no authority. 
 
 (n) It is clear from Litt, s. 466, that a release of claims cannot operate by 
 estoppel. It was decided in Right v. Bucknell, that the operative words of a 
 release by enlargement will not thus operate, and in Heath v. Crealock, that the 
 operative words of a grant will not thus operate. These decisions establish 
 the rule that the operative words in a deed, even though it be indented and 
 
 («) Co. Litt. 48a. sqq. 352a. not at hand. 
 
 (b~) General Finance Co. v. Liberator, (c) Co. Litt. 352a. 
 
 #c. Co., L. R. 10 C. D. 15. For a dis- 
 cussion of thisdoctrinesee also Co. Litt., 
 352a; 2 Smith, L. C. 462; and some 
 excellent articles in the Jurist (Miscell- 
 aneous) the reference to which I have 
 
 (rf) Sugd. V. P. 739 (i); Right v. 
 Bucknell, 2 B. & Ad. 278. 
 
 (e) Heath v. Crealock, L. R. 10 Ch. 
 22 ; General Finance Co. v. Liberator, Sfc. 
 Co., L. R. 10 C. D. 15.
 
 THE NATURE OF CONTRACTS, REPRESENTATIONS, &C. 79 
 
 instrument by precluding the parties, and those who derive 
 under them from denying its validity, brings me to notice a 
 third mode of dealing, different alike from a Disposition 
 and a Contract — I mean a Representation. No doctrine 
 of equity has given rise to so much seeming difference of 
 opinion (a), nor seemed so imperfectly understood even by 
 great Judges, as the doctrine of Representation. It is Representation 
 admitted on all sides (&) that if one party falsely represents AstotheBene- 
 a faCt (c) to another, and the latter, in reliance on such ficial interes t- 
 representation, acts in a way which would be to his detri- 
 ment if the representation were not made good, the former 
 must make the representation good if possible, and if not 
 must compensate the latter ; and that therefore if one party Representation 
 represent to another that the latter is owner of specified CX pe n ds V m oney 
 property which really belongs to the former, (or, what is on Representa- 
 
 • ii- • tors ^ an( ^- 
 
 the same thing, if one party conceal his ownership from 
 
 the other), while the latter to the knowledge of the former 
 
 is under the impression that he is himself owner {d), and 
 
 made between both parties, cannot operate by estoppel. If therefore the oper- 
 ative words in an Indenture of Lease thus operate, the case of such an Indenture 
 must be exceptional ; but in Littleton's time a lease was not considered to acquire 
 full validity until perfected by entry, (nor does it now except by virtue of the 
 Statute of Uses); and probably when he spoke of an Indenture of Lease operating 
 by estoppel, he meant to refer to the entry following upon it as thus operating. 
 This is quite consistent with the doctrine that a lease, though perfected by entry, 
 cannot thus operate wiless it be made by Indenture (see Co. Litt.47b), because in 
 a Lease the lessee as well as the lessor renders a valuable consideration, and 
 therefore must be bound; and no doubt in case of a fee-farm grant the same 
 rule would hold. The true doctrine seems to be that a Lease by Indenture will 
 authorize the lessee to enter if and as soon as the lessor acquires an interest; 
 and will, on, but not until, such entry, operate by estoppel — and this seems to 
 have been the opinion of Lord Hatherley, C., in Clemow v. Geach, L. R. 6 Ch. 
 151. But this doctrine is throughout consistent with the rule, (fully estab- 
 lished in modern times), that if either a lessee or anyone else, whether claiming 
 under a deed poll or otherwise, enters by permission of another, he cannot dis- 
 pute the latter's title until after he has retired again from the possession. 
 However on the wording of Co. Litt. 352a it is quite open to argument that 
 Coke considered that any Indenture, except a release or confirmation, might 
 operate by estoppel. 
 
 (a) See my essay on Representations (6) Citizens' Bk. Sfc. v. First National 
 
 of Intention, &c, in 28 Law Magazine #c, L. R. 6 H. L. 352, 360; Maunsell v. 
 1 85, (Aug. 1869) which 1 had the satis- While, 1 H. L. C. 1 055 ; Pasley v. Free- 
 faction of seeing favourably reviewed, I man, 2 Sim. L. C. 55. 
 know not by whom, in the Law Journal (c) See below as to Fraud, 
 for Aug. 13th, 1869. (d) Ramsden v. Dyson, L. R. 1 H. L. 129.
 
 80 THE NATURE OF CONTRACTS, REPRESENTATIONS, &C. 
 
 To intending 
 purchaser as to 
 incumbrances. 
 
 V>y neglect of 
 Director, &c. 
 to register an 
 incumbrance 
 which he has 
 on the Com- 
 pany's assets. 
 
 By selling 
 property under 
 the pretence 
 that one is 
 owner. 
 
 As to the Legal 
 Estate by 
 estoppel. 
 
 is expending money on the property in this belief), the 
 former will not be permitted to assert his ownership, but 
 his interest will pass to the latter; and that, in like manner, 
 if one party, knowing that another is about to purchase 
 specified property, represents to him that it is free from 
 incumbrances, and he purchases it in that belief, the 
 former will not afterwards be permitted to enforce against 
 (a) it any incumbrances to which he may be entitled. And, 
 as an implied representation has the same effect as an 
 express one, it is, no doubt, on this principle, that the 
 much disputed doctrine depends, by which a Director (or 
 other officer) of a Company, who has acquired an incum- 
 brance upon the property of the Company, is not permitted 
 to set it up against one purchasing from the Company, 
 unless he, (the director &c.,) has done his duty as to 
 registering it (b) ; and, by parity of reasoning, if one party, 
 by representing himself as owner of property, induce 
 another to purchase it from him, any beneficial interest 
 which he may afterwards acquire in it must (I conceive) 
 pass to the purchaser (c); and if the property does not 
 exist, he can be compelled to convey other property of 
 equal value (d); and if he acquire the legal estate, it will 
 pass, provided the representation be precisely expressed 
 and be contained in the instrument (e), but it will not pass 
 unless this be the case (/), probably because it is considered 
 important that titles should be kept clear, and should not 
 depend on investigations of doubtful questions of fact ; and 
 no doubt it is for the same reason that the insertion of such 
 
 (a) Sugd. V. P. 7 (/). 
 
 (6) See as a leading case on this 
 subject, re South Durham I. Co., 48 L. 
 J. Ch. 480. 
 
 (c) See Came v. Mitchell, L.J. 15 Ch. 
 287 ; Noel v. Betvley, 3 Sim. 1 03 ; and the 
 dicta in General Finance Co. v. Liberator 
 4-c. Co., L. R. 10 C. D. 15. 
 
 (d) Carey v. Stafford, 3 Swan. 427n. 
 But probably the decision on another 
 
 point involved in this case would not 
 now be followed, namely, that when no 
 remedy by damages exists for a tech- 
 nical reason, a specific remedy may be 
 had even where the covenant is gra- 
 tuitous. 
 
 (e) Bensley v. Burdon, 2 Sim. & Stu. 
 516. 
 
 (/) General Finance Co. v. Liberator 
 8fc. Co., L. R. 10 C. D. 15.
 
 THE NATURE OF CONTRACTS, REPRESENTATIONS, &C. 81 
 
 a representation will pass the legal estate even though the 
 person to whom it passes was not in fact deceived (a) ; and 
 by this means the party to whom the legal estate passes 
 gains the beneficial interest, and priority over inconsistent 
 claims, under the same circumstances, and to the same 
 extent, as he would have done if the legal estate had passed 
 by virtue of an ordinary disposition. But if a representation Representation 
 be, not that a fa6t exists, but that the representor intends 
 to convey some estate or interest to the representee, or to 
 confer some benefit upon him, and the representee acts in 
 reliance on this representation, great difference of opinion 
 has existed as to whether the representor can be required 
 to make the representation good. If no intention really 
 existed in the mind of the representor the case might, 
 perhaps, be brought within the decisions as to represen- 
 tations of faCt; but it can rarely, if ever, be possible to 
 prove that no such intention existed; and, in a case in 
 which the question arose, the Judge who thought the repre- 
 sentation binding conceded (b) that it did exist at the time, 
 and that the question always is whether, when the intention 
 afterwards changes, the representation is to bind. The 
 earliest case on this subject, was, I believe, Montacue v. 
 Maxwell. When that case originally came before the Court, 
 the question was (c) whether an oral promise to settle 
 property, made in consideration of an intended marriage 
 which had been afterwards solemnized, was binding; and 
 it was decided, in accordance with what we shall hereafter 
 see was clearly law, that it was not. But it was afterwards 
 decided that if that promise was accompanied by an 
 earnest endeavour to induce (d) the promisee to rely on it 
 without requiring it to be reduced into writing, and if the 
 promisee contracted the marriage in such reliance, the 
 
 (a) Implied by the doctrine, in Hayes' (c) Montacue v. Maxwell, 1 P.W.617, 
 Conv. (3rd Ed.) 181. 620. 
 
 (b) h\Jordenv-Money,5 H.L.C. 1S5, (d) S. C on Amended Bill 1 Stra. 
 Lord St. Leonards expressly conceded 235; Pre. Ch. 526; I Eq. A6. 19 pi. 4. 
 this.
 
 82 THE NATURE OF CONTRACTS, REPRESENTATIONS, &C. 
 
 Testamentary- 
 dispositions. 
 Definition. 
 
 Kinds. 
 
 promise was binding, not as a promise, (for an oral promise 
 in consideration only of a marriage is void though the 
 marriage be solemnized), but as a fraudulent representation. 
 And in an action to recover damages a similar dis- 
 tinction has been taken (a). Since that time there have 
 been strong ditto, (b) to the effect that a Representation of 
 Intention is not binding, and decisions have repeatedly 
 been pronounced in the House of Lords upon cases more 
 or less involving this question ; but the decisions establish no 
 more than this — that a mere Representation of Intention, 
 without any urgent endeavour to induce the representee 
 to act on it, is not binding; and I have formed the opinion, 
 after a careful and searching examination of the cases (c), 
 that the doctrine established in Moutacue v. Maxwell is law 
 to this day, and that the dicta to which I have referred 
 were merely meant to correct a tendency (which for a time 
 existed), to go far beyond the principle established in that 
 case. Before leaving this subject it is necessary, in order 
 that the chapter may be complete, that we should endea- 
 vour to distinguish between testamentary and other 
 dispositions. A disposition is said to be testamentary 
 when it is meant to operate only after the disponor's death, 
 (i) and only on property belonging to him at his death, and 
 only so far as not revoked or altered by him. Testamentary 
 dispositions are distinguished into wills, codicils, and 
 
 (i) It follows from this, (and from the general rule of law that a disposition is 
 only valid if when it is made the disponee is either in existence or capable 
 of coming into existence), that the death of the devisee or legatee (before that 
 of the testator) invalidates the devise or bequest. Exceptions in case of a devise in 
 tail or a devise or bequest to the testator's issue, have been created by the 7 
 Wm. I, & 1 Vic, c. 26, ss. 32, 33. 
 
 (a) Gerhardt v. Bates, 2 E. & B. 476. 
 
 See also as to the recovery of damages 
 for mere representations of intention, 
 Moryan v. Griffiths, L. R. 6 Ex. 70; 
 Richardson v. Silvester, L. R. 9 Q. B 36 ; 
 (6) In Citizens' Bank, Src. v. First 
 National, $c, L. R. 6 H. L. 352, 360; 
 
 Ramsden v. Dyson, 1 H. L. 129; Maun- 
 sell v. White, 1 H. L. C. 1055; Jorden v. 
 Money, 5 H. L. C. 185; and other cases. 
 (c) See my Essay on Representations 
 of Intention above alluded to, and my 
 Essay on Personal Equities in the Law 
 Magazine for August, 1870.
 
 THE NATURE OF CONTRACTS, REPRESENTATIONS, &C. 83 
 
 donationes mortis causa ; but the distinction between the two 
 former is, in our law, merely nominal, — a later instrument Wills and 
 being termed a "codicil" when it is supplementary to an lCi s ' 
 earlier " will." In the Roman Law, from which the distinc- 
 tion is taken, an instrument by which an hares (that is an 
 executor) was appointed was called a "testament," and the 
 term "codicil" was used to distinguish a supplementary 
 instrument by which this hares was further directed how to 
 dispose of the property which by the testament had been 
 vested in him. A donatio mortis causa is simply a testa- Donationes 
 mentary disposition accompanied by delivery instead of by 
 writing as its appropriate formality. The learning of 
 donationes mortis causa consists simply in the consideration 
 of the question what kinds of property may be the sub- 
 jects of such an unwritten testamentary disposition, and 
 under what circumstances, and what other formalities 
 must in such cases be substituted. It therefore falls for 
 discussion under a later chapter. When I come to Contracts bene- 
 treat of Privity of Contract, I will state my reasons for 
 thinking that a contract: by the performance of which a 
 third person would be benefitted operates, if not rescinded 
 during the life of the contracting parties, as a testamentary 
 disposition to that third person of the rights derivable 
 under it. 
 
 persons.
 
 ( 84 ) 
 
 CHAPTER X. 
 
 THE EFFECT OF CONTRACTS, &C, TO DISPOSE OF PROPERTY. 
 
 Generally. 
 
 Firstly— it 
 binds the 
 estate. 
 
 Hence Accre- 
 tions belong 
 to and Losses 
 fall on the 
 purchaser. 
 
 As Windfalls. 
 Losses by Fire. 
 Bonuses. 
 
 Not copyhold 
 
 Fines. 
 
 Secondly — it 
 transfers right 
 to Purchase 
 Money and 
 Property con- 
 ditionally on 
 Proof of Title. 
 
 A contract or representation, if specifically enforcible, 
 produces three effects : — 
 
 First : it binds the estate as from the moment when it was 
 made. Consequently on a Contract of Sale the purchaser is 
 entitled to any benefits, and is bound to bear any loss, 
 which may accrue (in the nature of capital) to the property 
 after that time. For example, trees cut down by the vendor 
 (a) (i) or blown down (b) belong to the purchaser, and the 
 destruction of the premises by fire falls on him (c). And a 
 reversionary bonus on stock belongs to the purchaser of a 
 reversionary interest in the stock, though the bonus be 
 declared before such interest falls into possession (d). But 
 fines on the admission of tenants to a copyhold are consi- 
 dered (between a vendor and purchaser of the manor) as 
 mere income, and therefore as not falling under this rule (e). 
 
 Secondly, it transfers to the vendor a right to receive 
 the purchase money, and to the purchaser a right to enter 
 into possession of the property or receipt of the rents and 
 profits of it. But neither the vendor nor the purchaser 
 can exercise his right in this respect until either the vendor 
 has proved that he possesses a perfect title (or as perfect a 
 title as the purchaser is by the contract entitled to) or the 
 purchaser has waived any defects, — not the vendor, because 
 
 (i) That is if the trees are not such that the cutting of them entitles the 
 purchaser to rescind the contract, or if he does not rescind it, Mageimis v. Fallon, 
 2 Moll. 589. 
 
 (a) Magennis y. Fallon, 2 Moll. 587, 
 a very leading case on the law of Ven- 
 dor and Purchaser. 
 
 (6) Poole v. Shergoli, 1 Cox. 273. 
 
 (<•) Robertson v. Skelton, 12 Bea. 260. 
 
 (d) Re Armstrong's Trusts, 3 K. & J. 
 486, which however was not a contract 
 per verba de futuro but an assignment of 
 the beneficial interest. 
 
 («) Cmidon v. Tite, 1 Giff. 395.
 
 THE EFFECT OF CONTRACTS, &C. 85 
 
 the purchaser's promise is subject to the condition that 
 
 the vendor shall do this (a), — not the purchaser, because if 
 
 he seek specific performance he necessarily accepts the 
 
 title, and if he seek to recover damages the law, on the 
 
 ground that the vendor's contract is simply to execute any 
 
 proper conveyance which the purchaser may tender to him, 
 
 (b) requires that he (the purchaser) before he brings his 
 
 action should tender a conveyance (c), though the vendor, as 
 
 we shall see, is not under a similar restriction. But the (Right to Pos- 
 
 purchaser is entitled to the possession (or to the receipt of Time). 
 
 the rents &c.) as soon as he has accepted the title, (unless 
 
 of course the interest be reversionary, and unless a time 
 
 was stipulated for completion and had not arrived when he 
 
 accepted the title) ; such (at least) appears to me to be the 
 
 doctrine implied in the cases cited in the note (d), under 
 
 the latter of which the Court (as a reason for treating the 
 
 vendor as a mortgagee in possession) expressly declared 
 
 that his continuance in possession was a retention of 
 
 property which by the contract belonged to the purchaser, 
 
 and that therefore his possession must be referred to his 
 
 lien as an unpaid vendor, which lien of course would remain 
 
 after possession should be handed over to the purchaser (e). 
 
 If this be so, it follows that when the purchaser is either 
 
 willing or by contract bound to accept whatever title the 
 
 vendor may have, and no time has been stipulated for 
 
 completion, he is entitled to possession immediately on the 
 
 execution of the contract. This seems to be the case, for 
 
 it has been decided that when an agreement for a lease is 
 
 made without mentioning any time at which it is to 
 
 commence, the lessee is thus entitled (/). And of course 
 
 (a) Ball v Betty, 4 M. & Gr. 410; repair to the extent which its full value 
 
 Colliery. Mr. Bean, L. R 1 Ch. 81. will bear, unless he offer to yield pos- 
 
 (6) Said 4 Q. B. 429. session to the purchaser, and to reserve 
 
 (c) Stephens v. De Medina, 4 Q. B.422. only his lien for the purchase-money. 
 
 (rf) Carrodus v. Sharp, 20 Bea. 16; (e) So expressly declared in Phillips 
 
 Phillips v. Silvester, L. R. 8 Ch. 173, v. Silvester, L. R. 8 Ch. 173. 
 which also decides that the vendor is (/) Jaques v. Millar, L. R. 6 C. D. 
 
 bound to keep the property iu proper 153.
 
 86 
 
 THE EFFECT OF CONTRACTS, &C. 
 
 Thirdly— it 
 entitles to 
 intermediate 
 Interest and 
 Income. 
 
 Exception as 
 to Interest. 
 
 when the purchaser enters into possession the vendor 
 becomes entitled to payment of the purchase money, even 
 (it is now held) though he do not tender a conveyance (a), 
 but yet only if he be ready and willing to tender one (a). 
 
 Thirdly: it entitles the vendor to interest (b) on the 
 purchase money until paid, whether the estate sold be 
 reversionary or not; and entitles the purchaser to the 
 income (c) of the property until possession be delivered to 
 him, unless the estate sold be reversionary, in which case 
 the effluxion of time (by which the reversionary interest 
 increases in value) is considered equivalent (d). But if the 
 delay arise on the vendor's part, and the purchaser speci- 
 fically appropriates a sufficient sum as purchase money, he 
 is thenceforward exonerated from paying interest, even 
 though he retain the purchase money under his own 
 control, as by keeping it in his own name at his banker's 
 (d) — a circumstance which seems to show that this rule is 
 not founded on the principle that the purchaser makes 
 himself trustee of a specific fund for the vendor, and 
 thereby protects the latter from the risk of loss. If however 
 he merely keeps up his general balance, he is exonerated 
 from interest on a portion only of the purchase money 
 equal to the amount by which his average balance during 
 the period in question exceeded his usual average balance 
 (/). But it is in every case necessary that the purchaser 
 should give notice (i) to the vendor that the money is lying 
 idle, and until he gives such notice the interest will 
 continue to run ; and perhaps he must also give notice that 
 
 (i) As to what form of notice is sufficient, see the form stated in 4 D. G. 
 & S. 483. 
 
 (a) Poole v. Hill, 6 M. & W. 835. 
 
 (6) Phillips v. Silvester, L. R. 8 Ch. 
 173; De Visme y. De Visme, 1 Macn. & 
 G. 346; Carrodus v. Sharp, 20 Bea. 56. 
 
 (c) De Visme v. De Visme, 1 Macn. 
 & G. 346. 
 
 (d) Champernowne v. Brook, 9 Bli. N. 
 S. 199; Bailey v. Collet, 18 Bea. 179, 182. 
 
 (e) Howlund v. Norris, 1 Cox, 59; 
 
 Winter v. Blades, 2 S. & S. 393; Ker- 
 shaw v. Kershaw, L. R. 9 Eq. 56; Dyson 
 v. Hornbury, 4 D. G. & S. 481 ; over- 
 ruling De Visme v. De Visme, in which 
 it was held that delay on the vendor's 
 part would both exonerate the purchaser 
 from interest and disentitle him to 
 rents and profits. 
 
 (/) Winter v. Blades, 2 S. & S. 393.
 
 THE EFFECT OF CONTRACTS, &C. 87 
 
 he is ready to invest it as the vendor may require (a), but it 
 
 seems this will be implied. It seems to be also necessary 
 
 to the application of the rule that the purchaser should 
 
 thus appropriate a sum equal to the whole purchase money 
 
 unless some special circumstances occur. But when the 
 
 sum appropriated was less only by -^th of the proper sum, 
 
 and there were reasons for thinking that the deficiency 
 
 was due to oversight and the vendor did not call attention 
 
 to it, such special circumstances were held to exist (b), 
 
 and he was accordingly exonerated from interest on so 
 
 much of the purchase money as was thus appropriated (b). 
 
 In these cases a vendor is entitled to whatever interest the 
 
 Bank allows (c), but as a vendor is often unable without 
 
 inconvenience to complete by the time appointed, it is usual 
 
 on Sales by Auction (on which an intending purchaser is Condition of 
 
 obliged to either accept the vendor's conditions or do with- ^endor'to 1 ^ 
 
 out the property) to stipulate that the purchaser shall pay Interest. 
 
 interest from the time appointed for completion until actual 
 
 payment, no matter from what cause (d) the completion may 
 
 be delayed. Such a stipulation is not binding as against Its effect. 
 
 any wilful delay by the vendor (e) ; but when the delay is 
 
 not wilful the condition effectually binds the purchaser to 
 
 pay interest, even when the delay arises on the vendor's (/) 
 
 part. 
 
 The time at which the interest or income is to be actually Time for 
 
 paying Interest 
 paid appears to be the same as that at which the possession and Income. 
 
 is to be delivered or purchase money paid respectively. 
 
 The time from which the income has to be calculated is Time from 
 
 the same as that from which the interest is to be calculated, w ^° j^Jg ™" 
 
 unless the contrary be stipulated ; and even when a stipu- and Income. 
 
 lation is inserted which at first sight seems to have this 
 
 (a) See Winterv.Blades,2S.8cS. 393. (/) Williams v. Glenton, L. R. 1 Ch. 
 
 [b)Ker$haw v. Kershaw,L. R.9 Eq. 56. 200, 206; Sherwin v. Shakespear, 5 D. 
 
 (c) S. C, p. 58. Dyson v. Hornby, 4 G. M. G. 517, over-ruling Be Visme v. 
 D. G. & S. 485. He Visme, 1 Macn. & G. 346. As to 
 
 (d) 1 Prid. Conv., (9th Ed.) 32 ; 1 Dav. a stipulation for a high rate of interest 
 Conv. (4th Ed.), 613. see Herbert v. Salisbury, fyc, 11. Co., L. 
 
 (e) Vickers v. Hand, 26 Bea. 630. R. 2 Eq. 221.
 
 88 
 
 THE EFFECT OF CONTRACTS, &C. 
 
 If time fixed 
 for completion. 
 As from that 
 time. 
 
 Except on 
 Sale of Stock. 
 
 If no time fixed 
 and estate pos- 
 sessory : As 
 from time when 
 purchaser could 
 enter. 
 
 meaning, the Court will, if the wording will at all admit of 
 it, understand it in some other sense (a); and when the 
 stipulation is so worded that it cannot be otherwise inter- 
 preted than as meaning that the interest is to be calculated 
 as from a different time from the income, it will often be 
 considered as fraudulent and void (a). 
 
 The time as from which the income and interest are to be 
 calculated is whatever time has been by the Agreement 
 expressly fixed for completion (a) ; and accordingly if the 
 vendor die before that time, his heir, not his executor, is 
 entitled to the income accruing up to that moment (b). 
 But an exception occurs when the subject of sale is stock, 
 in which case, by the custom of the Stock Exchange, all 
 dividends which accrue after the making of the eontradi go 
 to the purchaser (c). If no time has been expressly fixed, 
 strict: principle would require that the time which in such 
 cases the law understands the parties to have implied 
 (namely whatever time may under the circumstances of the 
 case turn out to be reasonable (d)) should be substituted, 
 and this rule is actually applied for the purpose of deter- 
 mining whether a party has by his delay become liable to 
 pay damages. But if the same principle were applied to 
 ascertain the time as from which the vendor shall be 
 entitled to interest and the purchaser to income, it would 
 be necessary in every action for specific performance to 
 enter upon the inquiry what under the circumstances of 
 the particular case would be a reasonable time, and also 
 to calculate the amount of income derivable from the 
 property from that time (since from it the account would 
 commence) until completion. To obviate the expense of 
 the first, and in many cases that of the second, inquiry, 
 
 (a) Joy v. Birch, 3 H. L. C. 565. 
 (6) Lumsden v. Frazer, 12 Sim. 263. 
 
 (c ) Black v. Homersham, L. R. 4 Ex. 
 D. 24. 
 
 (d) Sansom v. Rhodes, 6 Bing. N. C. 
 261 ; Wiltett v. Clarke, 10 Pri. 207; and 
 
 as to reversions Spurrier v. Hancock, 4 
 Vez. 667 ; and as to advowsons Wyvill 
 v. Bp of Exeter, 1 Pri. 296. As to the 
 time within which conditions are to he 
 performed, see Co. Litt. 208a. to 210a.
 
 THE EFFECT OF CONTRACTS, &C. 89 
 
 the law has (on this point) departed from stri<5t theoretical 
 
 propriety, and determined that in the case of a sale of a 
 
 present interest the time when the purchaser enters (a) 
 
 into possession (or receipt of income), or the time when he 
 
 might prudently do so (b), whichever first arrives, shall be 
 
 the moment as from which the purchaser shall be entitled 
 
 to the income and the vendor to interest on the purchase 
 
 money. But when the estate sold is reversionary, the If no time 
 
 purchase money must be supposed to have been estimated es tate rever- 
 
 with reference to this fact, and therefore the effluxion of sionary: As 
 
 from date of 
 time by which the moment when the estate shall fall into contract. 
 
 possession is accelerated stands in the place of the enjoy- 
 ment of the income by the purchaser, and as this is going 
 on from the moment when the contract is entered into the 
 vendor is as from that moment entitled to interest (c). 
 When the sale is made under the Court, the parties were But on sale un- 
 
 under the old procedure bound as from the time when the for Court, from 
 
 r eighth day 
 
 report was absolutely confirmed. Under the present after certificate. 
 
 system the end of eight days from the Chief Clerk's Certi- 
 ficate is equivalent to this, and therefore we must suppose 
 that from that time the right to interest on the sale of a 
 reversionary interest will now begin to run, and it will be 
 the same on a sale under the Court of an interest in 
 possession if the purchaser pays in his money before the 
 next quarter-day (e). But on a sale under the Court of an 
 interest in possession, when the purchase money is not 
 paid before the next quarter day, the time when it was 
 actually paid is for convenience deemed to be the time as 
 from which the purchaser is to be entitled to the rents and 
 profits, and so the calculation of interest is altogether 
 avoided (/). And this holds good even though the subject 
 be a house, and therefore liable to wear(/), so that the income 
 
 (a) 2 Tud. L. C. Eq. (4th Ed.) 534. (e) Sugd. V. P. 632 (/). 
 
 (b) Carrudus v. Sharp, 20 Bea. 56. (/) Mackrell v. Bunt, 2 Madd. 34n. 
 
 (c) Bailey v. Collet, 18 Bea. 179, 182. And as it was before the Apportionment 
 
 (d) Robertson v.Skelton, 12 Bea. 260; Act the purchaser was entitled to the 
 Daniell's Ch. Pr. 1 1 62 (Jfc) to (o), 1 1 7 1 («) ; then accruing gale. 
 
 Sugd. V. P. 631 (e), 632 (j) 805.
 
 90 
 
 THE EFFECT OF CONTRACTS, &C. 
 
 On Contract 
 for Preemption. 
 
 Definition of 
 time when 
 Purchaser 
 could have 
 entered. 
 
 derivable from it would not, like the interest on unpaid 
 purchase money, continue for ever. When the contract is 
 merely that the party shall have an option to purchase, an 
 intention appears that the one party shall not be clothed 
 with the character of vendor nor the other with that of 
 purchaser until the option is exercised, and therefore the 
 income or interest will not be calculated save as from that 
 time {a). 
 
 I have said that the time when the purchaser entered, or 
 the time when he could have prudently done so, is, in the 
 case of an interest in possession, the moment as from which 
 the income and interest are to be calculated. When it is 
 necessary to investigate the vendor's title (as it always is 
 on a sale unless the parties stipulate the contrary) the 
 time when the purchaser admits or when the vendor first 
 proves (i) (b) (or as against him the time when he is first in 
 a position to prove) that the title is good is held to be 
 (within the meaning of this rule) the time when the 
 purchaser could prudently have entered. But when it is 
 not necessary to show a title, the time when "the contract is 
 executed would probably be so deemed, and on an agree- 
 ment to make a lease in which no time was specified for 
 the commencement of the term or for the performance of 
 the agreement, is was decided that the purchaser might 
 recover from the vendor as compensation for delay the sum 
 which he might have earned by occupying the premises 
 from the date when the agreement was entered into (c). 
 On a sale under the Court of an interest in possession, the 
 purchaser has been held entitled to the rents as from the 
 quarter-day next preceding the day on which he paid his 
 money (d) ; but I apprehend that since the Apportionment 
 
 (i) So a purchaser cannot recover damages bej T ond the expenses to which he has 
 been put unless either the vendor can prove that the title is good, or the pur- 
 chaser is willing to accept it, Bain v. Fothergill, L. R. 7 H. L. 159; Flureau v. 
 Thornhill, 2 Bl. 1078. 
 
 (a) Edwardsv. West, L.R. 7 CD. 858. (c)Jaquesv. Millar, L.R. 6 CD. 153. 
 (6) Carrodus v. Sharp, 20 Bea. 56. ((/) Mackrell v. Hunt, 2 Madd. 34a.
 
 THE EFFECT OF CONTRACTS, &C. 
 
 91 
 
 Act (a) he would only be entitled to a proportionate part as 
 from the latter day; and the doctrine would, I apprehend, 
 be the same when the sale is not under the Court. It is 
 now usual expressly to stipulate that the rents and profits 
 and outgoings shall be apportioned (b). 
 
 If the purchaser obtains possession at an earlier time 
 than that fixed (c), or than that at which he might have 
 prudently entered (d), he is bound to compensate for the 
 income by paying interest as from the time when he so 
 obtains possession (i). 
 
 If a purchaser omits to take possession until after the 
 time fixed, or at which he might have prudently entered, 
 he will not be therefore exonerated from the interest (e). 
 Consequently, unless he be entitled to the income during 
 that period he will suffer loss. It seems that he always 
 will be entitled to this income in respect of so much of the 
 premises as were not in hand (/), and that he will in general 
 be entitled to an occupation rent in respect of so much of 
 them as was in hand. At least he is so entitled when the 
 subject in question is a farm (g), and the delay is caused by 
 objections which (though ultimately held to be untenable) 
 are yet such that the law as to their invalidity is not clear 
 (h); and it is especially the case when the vendor keeps the 
 purchaser out of possession (*), or where the agreement 
 stipulates that he is to have the "rents and profits" (/). 
 
 Whence Inter- 
 est and Income 
 calculated 
 when purchaser 
 enters 
 prematurely. 
 
 Whence Inter- 
 est and Income 
 calculated 
 when purchaser 
 neglects to 
 enter. 
 
 (i) But it must he remembered that as a rule entry into possession accepts 
 the title, and so brings to pass the time when the purchaser might prudently 
 have entered. 
 
 (a) 33 & 34 Vic, c. 35, and see Lawes 
 v. Gibson, L. R. 1 Eq. 135, which decides 
 that rent payable out of property is to 
 he apportioned. 
 
 (6) 1 Prideaux Conv. (9th Ed.) 33; 1 
 Davidson Couv. (4th Ed.), 613. 
 
 (c) Fludyer v. Cocker, (1st lot), 12 
 Vez. 25. 
 
 ((f) Att.-Gen. v. Christchurch, Exp. 
 Maddox, 13 Sim 214; Binks v. Lord 
 Robeby, 2 Swan. 226. 
 
 (e) Carrodus v. Sharp, 20 Bea. 56. 
 
 (/) See Dart 576 (e). But there 
 does not seem to be a case exactly in 
 point. 
 
 (g) Dyer v. Hargreave, 10 Vez. 509. 
 
 (Ji) Cases commented on and ex- 
 plained iu Phillips v. Silvester, L. R. 8 
 C. D. 173. Accordingly Carrodus v. 
 Sharp, 20 Bea. 56 (where the subject 
 was a mill). 
 
 (i) Thomas v. Buxton, L.R.8 Eq.120. 
 
 (j) Metropolitan R. Co. v. Defries, L. 
 R. 2 Q. B. D. 387.
 
 92 
 
 THE EFFECT OF CONTRACTS, &C. 
 
 Fourthly — it 
 transfers the 
 Liability to 
 Outgoings, &c, 
 
 Supplementary 
 remarks. 
 Rate of 
 Interest. 
 
 Vendor's 
 Liabilities 
 ■while in 
 Possession. 
 
 And if the circumstances are such that the purchaser if he 
 had been in possession could have made more by using the 
 premises for the purpose contemplated between him and 
 the vendor than an occupation rent would be worth, he is 
 entitled to recover, instead of an occupation rent, damages 
 to the amount which he could have so made (a), unless, of 
 course, any such circumstances occur as would disentitle 
 him to an occupation rent. But if the vendor offers the 
 possession to the purchaser, and the purchaser neglects to 
 take it, he is disentitled to any occupation rent or other in- 
 come in respect of so much of the premises as is in hand (a), 
 and so he is in respect of any premises on which the vendor 
 was carrying on a trade — this indulgence being allowed to 
 the vendor to compensate him for the loss which must 
 always ensue when a trade is carried on on premises which 
 the trader may have to leave at a moment's notice (b). But 
 though a vendor is freed from occupation rent, in this case 
 he is not entitled to compensation for depreciation in the 
 value of his occupation continuing after he might have 
 abandoned the possession to the purchaser (c). 
 
 Fourthly: it transfers to the purchaser the liability to 
 bear the outgoings by which the property is burthened, and 
 that from the same time as from which he is to be entitled 
 to the possession — the vendor being bound to discharge 
 them until that moment (d) ; and accordingly the purchaser 
 of a reversionary interest is bound to bear the Succession 
 Duty payable in respect of it (e). 
 
 The rate of interest (when interest is payable) is £\ pev 
 cent. (/) unless the contrary be stipulated. But it is gen- 
 erally stipulated that it shall be £5 per cent. 
 
 If the vendor withholds possession from the purchaser 
 (or even it seems if he does not offer it him) the vendor's 
 
 (a) J agues v. Millar. L. R. 6 C. D. 1 53. 
 
 (6) Leggott v. Metropolitan R. Co., L. 
 R. 5Ch. 719. 
 
 (c) Queen v. Vaughan, L. R. 4 Q. B. 
 190. 
 
 (d) Carrodus v. Sharp, 20 Bea. 56. 
 
 (e) Cooper v. Trewby, 21 Bea. 194. 
 
 (f) Hart v. Swaine, L.R.7 CD. 173; 
 Rhys v. Dare Valley R. Co., L. R. 19 Eq. 
 93.
 
 THE EFFECT OF CONTRACTS, &C. 
 
 93 
 
 possession (as from the time appointed for completion or 
 as from the time when the purchaser might prudently have 
 entered) will be referred to his title under his lien for the 
 purchase money, and he will therefore be accountable to 
 the purchaser to the same extent as a mortgagee in pos- 
 session would be, and consequentiy will be bound to make 
 good to the purchaser all losses which may have occurred 
 to the property during such possession, (except those which 
 the vendor could not have prevented or which he did his 
 best to prevent), and all sums which the vendor might but 
 for his wilful default have received (0), and accordingly he 
 is liable when the subject of sale is a farm of land to com- 
 pensate the purchaser for the injury caused by his (the 
 vendor's) neglect to procure a successor to an outgoing (b) 
 tenant and for deterioration (c). 
 
 When a Contract for Sale is rescinded after the pur- Effects of 
 chaser has been in possession, the vendor is entitled to R ecission. 
 receive from him a sum equal to the rents and profits which 
 he has received (d), but not a further sum equal to those 
 which he might but for his wilful default have received (e). 
 So when it is rescinded after the purchase-money has been 
 paid, the vendor is bound not only to repay it but to pay 
 interest on it (/), and the purchaser is entitled to a lien on 
 the property which he has to restore for the purchase-money 
 which he is to receive, just as the vendor is when the 
 contract is to go on (g). And as the deposit is part of the As to Deposit, 
 purchase money he is also entitled to interest (h) on it, and 
 to a lien on the property for the same (h). And by conse- 
 quence a sub-purchaser has a lien upon the lien of the 
 original purchaser (*). 
 
 (a) Phillips v. Silvester, L. R. 8 Ch. 
 173. But of course this does not apply 
 to the vendor's possession prior to com- 
 pletion of the title and of its evidence, 
 Shervoin v. Shakspear, 5 D. G. M. G. 531. 
 (6) E. Egmonlv. Smith, L. R. 6 C. D. 469 
 (c) Thomas v. Buxton, L. R. 8Eq. 120; 
 Phillips v.Silvester, L. R. 8 Ch. 173. 
 
 (rf) Hart v. Swaine, L. R. 7 C. D. 47. 
 
 (e) Parkinsonv. Hanbury, L.R.2 H.L. 1. 
 
 (/) Hartv. Swaine; Lindsay Petroleum 
 Co. v. Hurd, L. R. 5 P. C. 245. 
 
 (g) Rose v. Watson, 10 H. L. C. 672. 
 
 (h) Turner v.Marriott,L.R.3 Eq.744. 
 
 (i) Aberaman Ironworks Co. v. Wickens 
 L. R. 4Ch. 110.
 
 ( 94 ) 
 
 CHAPTER XI. 
 
 COMPLETION OF THE MENTAL ACT J AS AFFECTING THE 
 VALIDITY OF CONTRACTS, &C. 
 
 General 
 Principles. 
 
 First essential: 
 Intention. 
 Consequences 
 of its necessity. 
 
 Every dealing, in order to amount to a Contract, Dispo- 
 sition, or Representation, must involve certain mental 
 acts. If these be less than the law prescribes, it is a mere 
 nullity, and cannot entitle either party to any remedy, 
 though if they be sufficient the Contract is not necessarily 
 valid, but may still be open to one of the objections 
 discussed in the following chapters. A disposition may be 
 a nullity as to the beneficial and yet valid as to the legal 
 estate (a). 
 
 The first essential is an Intention to promise, or to dispose, 
 or to represent a fact or intention. Consequently, when an 
 instrument purports to convey property so described therein 
 (whether by words or map (b)) as to include more than 
 the disponor intended, it will no* operate on the beneficial 
 estate (b), unless some circumstances have occurred to bind 
 the disponor (c) ; and if a disposition be made for a specified 
 purpose which cannot be legally carried out (whether malum 
 prohibitum (d), or malum in se (e), — or be made on a trust, 
 which is not stated (/) or is void (g), it will be inoper- 
 ative as to the beneficial interest. And if a formal instru- 
 ment purports to convey a money fund in a manner 
 different from that intended, and the Court has to distribute 
 
 (a) Involved in the principle of 
 Glegg v. Rees, L. R. 6 Ch. 71; see also 
 Clarke v. Malpas, L. J. 31 Ch. 696. 
 
 (6) Harris v. Pepperell, L. R. 5 Eq. 1. 
 
 (c) Conceded Harris v. Pepperell. 
 
 (d) Field v. Lonsdale, 13 Bea. 78. 
 
 (e) Taylor v. Bowers, L. R. 1 Q. B. 
 D. 291. 
 
 (/) Rudkin v. Dolman, 35 L. T. N. S. 
 791, where startling consequences 
 were deduced from this doctrine. 
 
 (g) And see Lewin on Trusts, 
 1 1 9 (i) 1 20 (a) (b) ■ Williams v. Kershaw, 
 5C.&F. 111.
 
 COMPLETION OF THE MENTAL ACT. 95 
 
 the fund, it will act upon the intention not on the formal 
 
 instrument (a) ; but when the subject of the instrument is 
 
 property which must continue in existence and may be 
 
 dealt with, and the legal estate has been conveyed contrary 
 
 to the intention, the Court will direct a Reconveyance of it 
 
 (b) for reasons which will be explained when we come to 
 
 treat of Priorities ; and by parity of reasoning, an intention 
 
 to transfer property to one person will not transfer it to 
 
 another, though the latter have assumed the 'character of 
 
 the former — a (c) rule which, at least in the case of chattels, 
 
 applies to the legal as well as the beneficial estate. How- Qualifications 
 
 ever a Notice to Treat for the purchase of lands, &c, under 
 
 the Lands' Clauses' Act is equivalent to an offer to purchase 
 
 (d), and an assent to a promise by another respecting one's 
 
 property is equivalent to a promise by oneself (e) ; but a 
 
 statement in a deed that the parties have agreed to it is 
 
 not equivalent to concurrence by them all in a disposing 
 
 clause in which some only have actually concurred: it merely 
 
 affords evidence that the deed ought to be reformed (/). 
 
 The second essential is that the intention should be Second 
 definitive, that is the promisor or disponor must not merely Definith-eness 
 contemplate the binding of himself or his property, but 
 must mean to bind them by the very transaction in 
 question (g). Consequently a promise, &c. when open to 
 this objection is a nullity (h) in itself, though it is capable 
 of being validated by acts done in reliance on it, as I shall 
 hereafter show. The term "Representation of Intention" "Representa- 
 means simply "an indefinitive promise." tion"° defined" 
 
 («) Re De La Touches Settlement, L. but a 'recital sometimes amount to a 
 
 R. 10 Eq. 599 ; South v. Wffe, L. R. 20 covenant, Lay v. Mottram, 19 C. B. 113, 
 
 Eq. 666. [696. 479. 
 
 (6) See Clarlcev.Malpas, L. J. 31 Ch. (g) Carlwright v. Miller, 36 L. T. N. 
 
 (c) Cundy v. Lindsay, L.R. 3 Ap. 459. S. 398 ; Hussey v. Home Payne, L. R. 4 
 
 id) Steele v. M. Liverpool, 7 B. & S. H. L. 311. 
 
 261: re Marylebone <5"c, exp. Edwards, (A) Citizen s Bk., Sf-c.v. First National 
 
 L. R. 12 Eq. 389. Sf-c, L. R. 6 H. L. 352; said Maunsell v. 
 
 (e) Lee v. Lee, L. R. 4 C. D. 175. White, 1 H. L. C. 1055; cases cited 
 
 (J) Young v. Smith, L. R. 1 Eq. 180; below.
 
 96 
 
 COMPLETION OF THE MENTAL ACT. 
 
 What promise 
 is deemed 
 definitive. 
 When a formal 
 contract is 
 stipulated for. 
 
 When wording 
 of promise itself 
 ambiguous. 
 
 When promise 
 made on 
 honour. 
 
 Disposition 
 definitive as to 
 legal but not 
 as to beneficial 
 
 estate. 
 
 If the terms of the agreement have not yet been exactly 
 and fully agreed upon, but the parties have left them to be 
 settled by a subsequent formal instrument, the intention is 
 indefinitive and the transaction not binding; but if the 
 parties have agreed upon all the terms, a stipulation that 
 the agreement shall be afterwards embodied in a formal 
 contract (which is sometimes done to prevent mistakes) 
 will not prevent them being bound even though the formal 
 contract be never prepared (a). Considerable litigation 
 has arisen to determine under what circumstances the one, 
 and under what circumstances the other, of these intentions 
 shall be understood to be meant by a stipulation that a 
 formal agreement shall be prepared. The tendency of 
 decision was at one time in favour of holding the informal 
 agreement binding, but it afterwards set strongly in an 
 opposite direction (b), and now (c) there appears to be little 
 inclination to prefer either view. 
 
 An expression of intention made in writing for valuable 
 consideration will be generally construed as a promise (d). 
 But an agreement worded so as to leave it doubtful whether 
 the intention be definite is not specifically enforcible (e) 
 unless under the circumstances which would make it so if 
 clearly indefinitive (/). On the other hand it has been 
 judicially laid down that the mere fact that a promise is 
 made "upon honour" will prevent it binding (g); but 
 though a promise "upon honour" will not be more binding 
 than any other promise, it would be highly unreasonable to 
 treat it as less so. 
 
 A disposition, may be effectual as to the legal estate and 
 yet be deemed indefinitive as to the beneficial estate. This 
 
 (a ) Rossiter v. Miller , L. R. 3 Ap. 11 24 ; 
 Lewis v. Brass, L. R. 3 Q. B. D. 667. 
 
 (6) Ridgway v. Wharton, 6 H. L. C. 
 238, and subsequent cases, Winn v. 
 Bull, L. R. 7 C. D. 29. 
 
 (c) Rossiterv. Miller, L. R. 3 Ap. 1 124 ; 
 Brogden v. Metropolitan Ry. Co., L. R. 
 2 Ap. 672; Lewis v. Brass, L. R. 3 Q. 
 
 B. D. 667. 
 
 (d) Norton v. Wood, 1 R. & M. 178. 
 
 (e) Said Huddleston v. Briscoe, 1 1 
 Vez. 592. 
 
 (/) Below. 
 
 (g) p. Lord Wensleydale, Ramsden 
 v. Dyson, L. R. 1 H. L. 170.
 
 COMPLETION OF THE MENTAL ACT. 97 
 
 occurs when the disposition is made for the donor's own 
 purposes (a). In this case a trust is said to "result." 
 
 Definitiveness has been held unnecessary to the revo- Definitiveness: 
 cation of a disposition in making which the disponor had sary t0 revoca . 
 reserved a power to revoke it (b), and it does not seem * l0n or t0 
 
 D6C[U.GSti. 
 
 perfectly clear whether it is necessary to a bequest of 
 personal estate (c). 
 
 And a great multitude of cases have been decided upon Precatory 
 the question whether a trust imposed by words not 
 importing a definitive intention (such as words of request) 
 are binding. At one time the rule was established that 
 every expression distinctly pointing out the person to be 
 benefitted and the property by which he was to be bene- 
 fitted is binding {d), but later Judges, while professing to 
 cite this rule with approbation, changed the whole meaning 
 of it by substituting for it the proposition that every 
 expression not distinctly pointing these out is not binding 
 (e) : while in the case in which both are distinctly pointed 
 out, they still in almost every instance decided that the 
 trust was not binding on the ground that the intention of 
 the settlor or testator was not sufficiently definitive. 
 
 It may perhaps be still open to argument whether an 
 expression of reliance on the justice (/) of the disponee is 
 not sufficient to bind him when subject and object are 
 defined; but it is clearly settled that a mere request, or an 
 expression of reliance on his generosity, will not be suffi- 
 cient. But the words "trust" (g) and its derivatives (and 
 
 (a) Bottle v. Knocker, 4 6 L.J. Ch. 159. 513; Aco. p. Lord Eldon, Meredith v. 
 
 (6) Vernon v. Vernon, Amb. 1; but Heanage, 1 Sim. 542; as to uncertainty 
 
 probably tbis was so held only because of the subject matter, re Bond, L. R. 4 
 
 the language was considered sufficient C. D. 238; as to the question whether 
 
 to create a trust. a direction to expend in the mainte- 
 
 (c) Wra's, Exors., 63-9, 103, where nance of children be definitive, Mackett 
 
 n(y)isnot to be relied on in the present v. Mackett, L. R. 14 Eq. 49; Lambe v. 
 
 state of thelaw, therulebeingnow what Eaines, L. R. 6 C. D. 597. 
 
 he states as the exception. (/) Re Bond, Cole v. Hawes, L. R. 4 
 
 (rf) Per Lord Eldon, Paul v. Comp- C. D. 238; Eaton v. Watts, L. R. 4 Eq. 
 
 ton, SVez. 29. 151. 
 
 (e) Knight v. Broughton, 11 C. & F. (g) Baker v. Moseley, 12 Jur. 740. 
 
 13
 
 98 
 
 COMPLETION OF THE MENTAL ACT. 
 
 perhaps "confide" (a) and its derivatives) will bind because 
 they are considered to be technical terms, and therefore to 
 express definitive intention. It may therefore now be taken 
 as a settled rule that unless the testator or settlor intended 
 to impose an obligation (b) upon the legatee, &c, the latter 
 will take beneficially. At one time the doctrine was dis- 
 tinctly established the other way, namely, that when a 
 testator to avoid wounding the feelings of his relative by 
 seeming to doubt his honour, abstains from imposing an 
 absolute obligation, and the relative afterwards shows 
 himself unworthy of the confidence thus reposed in him 
 by acting contrary to the wishes of the testator, he shall be 
 bound as if an intention to bind him had existed ; but this 
 doctrine is overruled. 
 
 A trust for payment of the creditors in general of the 
 disponor is not considered as manifesting a definitive 
 intention to pass any interest (except to a creditor who is 
 trustee of the deed (c)), but merely as authorizing the dis- 
 ponee (as agent of the disponor) to raise money for the 
 purpose in question ; and therefore if the disponor die or 
 revoke his authority the express trusts come to an end 
 (though what has been already done under them remains 
 valid), and the beneficial interest all along remains in the 
 Definitive as to disponor. But of course the legal estate cannot be taken 
 out of the disponee by any revocation (d). However such 
 a deed implies an intention by the disponor that the legal 
 estate shall be vested in the trustee for the purpose of 
 carrying out the disponor's directions; and consequently 
 the trustee under the deed is as fully competent as the 
 disponor himself would be to call for a conveyance of the 
 
 Trust deed for 
 Creditors. 
 Indefinitive as 
 to beneficial 
 estate. 
 
 legal estate. 
 
 (a) Binding Curnick v. Turner, L. R. 
 1 7 Eq. 322 ; Le Marchant v. Le Marchant, 
 L. R. 18 Eq. 414; not binding, re Hutch- 
 inson Sr Tennant, L. R 8 C. D. 540. 
 
 (b ) Stead v Mellor, L. R. 5 C. D. 225 ; 
 Parnall v. Parnall, L. R. 9 C. D. 96; per 
 Lord Eldon, Meredith v. Heanage, 1 
 Sim. 542. 
 
 (c) Siggers v. Evans, 5 E & B. 367, 
 as explained in L. R. 8 C. D. 753-4, 
 though the dicta in Siggers v. Evans 
 went further. 
 
 (rf) On all these points Johns v. James, 
 L. R. 8 C. D. 744; Garrard v. Lord 
 Lauderdale, 2 R. & M. 451.
 
 COMPLETION OF THE MENTAL ACT. 99 
 
 legal estate from any person in whom it is vested (a) ; and, 
 
 of course, when the disponor has the legal estate in him, 
 
 and purports to pass it, his intention to pass it will not be 
 
 deemed indefinitive, but will be effectual (b). 
 
 Ads in reliance on an indefinitive disposition, or promise, Actsinreliance 
 , , r . . .... . . on Indefinitive 
 
 or representation ot tact or ot intention, will in my opinion promise make 
 
 render it binding, but only if they be ads which were lfc bindill S- 
 within the purview of the parties in making the represen- 
 tation (c), and were induced by the efforts of the repre- 
 sentor, &c. (d). It is true that the decisions that such ads 
 will render an informal agreement binding do not touch this 
 question, for though an agreement be void as informal, it 
 still exists ip fad ; whereas in the case I am now consi- 
 dering there is in fad no agreement ; and much may be said 
 against my view on the authority of the cases in the note 
 (e); but I think those cases distinguishable, and the dida 
 in them meant to be understood with reference to their 
 circumstances. It has been settled (/) in opposition to the 
 repeated dicta of the Law Lords in these cases that a 
 refusal to insert a stipulation in the written instrument will 
 not after inducement and part performance prevent it 
 binding ; and there are dicta (g) favourable and decisions (h) 
 which have been treated as favourable to my view. I admit 
 that this opinion is hardly pressed by Caton v. Caton, but in 
 that case the question of fraudulent inducement was not 
 distinctly alluded to in either the arguments or the judg- 
 
 (a) Glegg v. Rees, L. R. 7 Ch. 71. (e) Caton v. Caton, L. R. 2 H. L. 127; 
 
 (6) Siggers v. Evans, 5 E. & B. 367, Bankart v. Tennant, L. R. 10 Eq. 
 
 and the principle of Glegg v. Rees. 141, [Where the intention was subject 
 
 (c) Jordenv. Money, 5 H. L. C. 185, to conditions stated at p. 148, / 16, 
 (as regards the house in India). That which had ceased to exist, otherwise 
 a similar restriction holds as to Repre- relief would have been given p. 147 / 
 6entations of fact from which the 17]; Maunsell v. White, l H. L. C. 1055; 
 argument to those of intention is a Ramsden v. Dyson, L. R. 1 H. L. 129. 
 fortiori,seeBarryx.Croskey,2 J. &H 21. (/) Erskine v. Adeane, L. R. 8 Ch. 
 
 (d) Jorden v. Money, 5 H. L. C. 185, 756; Morgan v. Griffith, L. R. 6 Ex. 70. 
 as regards Wm. Money's marriage (<?) Per Lord Kingsdown in Rams- 
 which Miss Marsall did not encourage den v. Dyson, L. R. I H. L. 129. 
 
 but disapproved of. On this ground {h) Hammersley v. De Biel, 12 C. & 
 
 only is Jorden v. Money distinguishable F. 45, (so treated by Lord St. 
 
 from Prole v. Soady, 2 Giff. 1 ; and from Leonards in Jorden v. Money, 5 H. L. 
 
 Williams v. Williams, L. J. 37 Ch. 854. C. 185); Jackson v. Cator, 5 Vez. 687.
 
 100 
 
 COMPLETION OF THE MENTAL ACT. 
 
 Acquiescence 
 
 by creditor in 
 Trust-deed. 
 
 Third 
 
 essential: 
 
 Completeness. 
 
 ments, and the Lords did not state that they intended to 
 overrule Montacue v. Maxwell, though it was cited before them. 
 
 Acquiescence by a creditor in the terms of an Agency 
 Trust Deed, taking place after the existence of such a deed 
 has been communicated {a) to him, or still more after he 
 has become trustee of it (b), or has executed it as a party 
 (c), will on the above ground entitle him to the benefits 
 purported to be conferred by the deed, and will thus pre- 
 clude the debtor from revoking the trusts of the deed as 
 regards that particular creditor, but the debtor will still 
 continue owner subject: to the claims of any creditor thus 
 entitled (i) ; and though the deed purports to be only for 
 the benefit of executing creditors, a creditor who acts on 
 it without executing will acquire the same rights (e) ; but 
 •the mere communication of the -deed to the creditor without 
 any action by him in reliance on it will not confer on him 
 these rights, although it will entitle him, at any time before 
 he has done anything contrary to the terms of the deed or 
 dissented from it, to accede and thus obtain the benefit of it 
 (/). And I take the ground of the whole doctrine to be 
 that the communication of the deed to the creditor is a 
 representation of intention to pay him in the mode pre- 
 scribed by it, and that his action on the faith of this 
 representation renders it binding". In this case however 
 no special inducement is necessary. 
 
 The third essential is Completeness, or a definition of 
 what it is that is promised. The question whether the 
 terms of the contract are thus defined must not be con- 
 founded with the question whether they are adequately 
 expressed in ivviting, (a question which will be discussed 
 
 (rt) Re Baler's Trust, L. R. 10 Eq. 
 554; Whitmore v. Turquand, 3 D. G. F. 
 & J. 107. 
 
 (t) Siggers v. Evans, 5 E. & B. 367. 
 
 (c) S'ichohon v. Tutin, 2 K. & J. 18. 
 
 \d) Johns v. James, L. R. 8 C. D.744; 
 partially overruling some dicta in 
 Siggers v. Evans, 5 E. & B. 367, as to 
 
 the case of a deed executed by the 
 trustee. 
 
 («) Whitmore v. Turquand, 3 D. G. 
 F. J. 107; re Baler's Trusts, L. R. 10 
 Eq. 554. 
 
 (/) Whitmore v. Turquand, 3 D. G. 
 F. J. 107; re Baler's Trusts, L. R. 10 
 Eq. 554.
 
 COMPLETION OF THE MENTAL ACT. 101 
 
 when I come to treat of Formalities). But it must be con- 
 sidered simultaneously with the question whether they are 
 in some way manifested by the expression (whether orally or 
 in writing) of the contract or disposition. 
 
 The Identity of the vendor is on a sale by auction often Examples 
 
 us to Vendor's 
 
 left in doubt ; and it would be a salutary rule that every identity, 
 contract should so far designate the party against whom an 
 action for breach of it may be brought as to admit of his 
 being identified by the investigation of questions of fact 
 without the necessity of investigating questions of law also, 
 and consequently, such designations as the "proprietor" or 
 "mortgagee" of specified property might be considered 
 insufficient on the ground that it cannot be known who is 
 proprietor or mortgagee except by investigating the title, 
 and in many cases solving points of lav/: But the rule has 
 been settled otherwise (a). Still the description must not 
 be equally applicable to several persons (b). Again, it often As to other 
 happens that the Property (if any) which is the subject of a 
 contract or disposition, or the duration of the estate (d), or 
 some other term is not exactly determined on, or that 
 it is uncertain whether it be determined on or not (c). 
 When this is the case the contract or disposition is in itself 
 a nullity unless a mode for determining the omitted terms 
 is prescribed by it, (as that of leaving them to the arbitration 
 of a third person), and even then unless they are after- 
 wards determined by this mode, in which case the deter- 
 mination being made under the authority of the parties has 
 the same effect as if made by themselves. Until the terms 
 are thus determined the contract is incomplete, and conse- 
 quently a Notice to treat for the purchase of lands under As to purchase 
 ., x j ' -,, a o i i ,-, -1 money in case 
 
 the Lands Clauses Act does not operate as a contract until of notice to 
 
 the price has been determined (d) ; and an agreement so trcatl 
 worded as to leave it doubtful whether its terms were thus 
 
 (a)Jiossiterv. Miller, L. R. 3 Ap. 1124. (e) Rigkton v. High ton. 36 L J. Ch. 
 
 lb) Hossiter v. Miller, L. R.3Ap,1141. 61; Campbell v. M. Liverpool, L. R. 9 
 
 (c) Pearcey. Watts, L. J. 44 Ch.492. Eq. 579. 
 Id) Ddlingy. Evans, L. J. 36 Ch. 474.
 
 102 
 
 COMPLETION OF THE MENTAL ACT. 
 
 Exception in 
 favour of 
 Charity. 
 
 Evidence as to 
 completeness 
 of contract by 
 Letters. 
 
 Qualification 
 by implying 
 terms. 
 
 determined, is not, it seems, specifically enforcible (a), unless 
 under the circumstances which would make it so if clearly- 
 incomplete. 
 
 A very singular exception to this rule has been estab- 
 lished where a general intention exists in the disponor's 
 mind that his property shall go for a Public Charitable 
 purpose, and he gives it to Charity without defining exactly 
 what Charity. In this case the Court will devote it to such 
 Public (b) Charitable purposes as appear most nearly to 
 accord with his probable intention (c). Friendly Societies 
 are not deemed Charities within this rule (d). 
 
 And if it be a question whether all the terms were agreed 
 upon, and Letters are adduced as containing or evidencing 
 the contract, circumstances orally proved and other later 
 letters will be accepted as evidence that at the time when 
 the Letters were written which are relied on as constituting 
 the contract there were some terms not agreed on, and that 
 therefore there was no contract (e). 
 
 But every contract is considered as meant to imply 
 certain terms when no substitute for them is expressed, 
 and these terms are not considered as omitted within the 
 rule under consideration. Thus, it is generally implied 
 that the contract shall be performed within a reasonable 
 period (/), and at whatever place the promisee may be then 
 in England (g), that the promisor will perform whatever is 
 necessary to give full effect to his promise (h), and that by 
 the disposition there shall pass to the disponee all such 
 rights as are necessary to enable him effectually to derive 
 full advantage from the subject expressly disposed of (i). 
 
 (n) Williamson v. Wooton, 3 Drew. 210. 
 
 (b) Thomas v. Howell,L. R. 18 Eq. 198. 
 
 (c) Pocock v. Att.-Gen., L. R 3 C. D. 
 342; See A slon v. Wood, L.R.6Eq 419. 
 
 (d) Re Clark's Trusts, L. R. 1 C. D. 497. 
 
 (e) Uussey v. Home Payne, L. R. 4 H. 
 L. 317. 
 
 (/) Ford v. Cotesworth, 9 B. & S. 559; 
 Addison on Contr. (6th Ed.), 942 (i) to 
 
 43 (c), 90 (rf) («), 127 CO (d), 186 (a) 
 &c. ; and as to Conditions, Co. Litt., 208. 
 
 (g) As to Conditions, Co. Litt, 210-11. 
 
 (A) Reynard v. Arnold, L. R. 10 Ch. 
 386; Aspden v. Seddon, L. R. 1 Ex. D. 
 504-5-7. 
 
 (i) Said Angus v. Dalton, L. R. 3 Q. 
 
 B. D. 1 16 1. 27-32; re Mason, L. R. 8 
 
 C. D. 411.
 
 COMPLETION OF THE MENTAL ACT. 
 
 103 
 
 And an agreement to grant a lease without stating from 
 what time has been held (a) to imply that it is to commence 
 from the date of the agreement. Again, terms are often 
 implied from the context (b). 
 
 So an agreement which can only be fulfilled in case 
 some state of circumstances or some subject of property 
 continues to exist does not amount to a guarantee that it 
 shall continue, but is conditional on its continuance (c) ; 
 and on a principle similar to this last it is held that a 
 contract to sell or purchase property the title to which 
 depends on documentary evidence (for example land) is 
 conditional (d) on the vendor having and being able (i) to 
 prove that he has, either a perfect title, or as perfect a 
 title as the purchaser is under the contract entitled to, or as 
 perfect a title as the purchaser shall require (for a pur- 
 chaser is entitled to dispense with the title if he will (e). 
 It follows that the vendor is not entitled to enforce (/) 
 performance, nor recover damages, unless he (g) can fulfil 
 this condition, and that the purchaser is not entitled to 
 enforce (h) nor recover damages (i) unless he accepts the 
 title ; but according to the language of the decisions (j), it 
 would seem (for I have not found that the question has 
 
 (i) Unwillingness is not considered equivalent to inability, Engell v. Fitch, L. 
 R. 4 Q. B. 659. 
 
 (a) Jaques v. Miller, L. R. 6 C. D. 
 1 53, contra Cartwright v. Miller, 36 L. T. 
 N. S. 398. 
 
 (6) Perkins v. Fladgate,L. R. 14 Eq. 54. 
 
 ( c) Appleby v. Myers, L. R. 2 C. P. 
 D. 651. 
 
 (d) Per Blackstone, J., Flureau v. 
 Thomhill- Approved by the Judges and 
 Lords (except Lord Hatherley) in 
 Bain v. Fothergill, L. R. 7 H. L. 158, 
 but disapproved by him for the reason 
 stated in the text. A similar rule is 
 applied to a contract to purchase a 
 cargo, the title to which depends on 
 the bill of lading, Hastie v. Couturier, 
 5 H. L. C. 673. 
 
 (e) Accordingly said L. R.7 H.L.210. 
 
 (f) Doe v. S (anion, 1 M. & W. 701. 
 
 Conditions 
 implied. 
 
 Consequently, 
 purchaser 
 cannot recover 
 damages for 
 loss of bargain 
 when title bad. 
 
 (i) Bain v. Fothergill, L. R. 7 H. L. 
 158. 
 
 (j) According to Bain v. Fothergill, 
 L. R. 7 H. L. 174 (/ 1, 2) 177, 206; 
 Sugden, V. P. assumes the same, and 
 cites the following cases, but of these 
 Brigg"s Case, Pal. 364, and Harnett v. 
 Yeilding, 2 S. & L. 549, were cases of 
 agreements to grant leases. Hartley v. 
 Baxendale, L. J. 23 Ex. 179, Clare v. 
 Maynard, 6 A. & E. 5 1 9, and Simons v. 
 Patchett, 7 E. & B. 568, merely allude 
 incidentally to the rule that damages 
 for loss of the bargain cannot be recov- 
 ered, but do not touch the question 
 whether expenses can. In Bratt v. 
 Ellis, Sugd. V. P. 8 1 2, and Jones v. Dyke, 
 Sugd. V. P. 813, the expences were 
 
 813 
 
 (g) Deverellv. Lord Bolton, 17 Vez. 514. conceded, the only question was as to 
 
 (h) Cropy. Norton, 9 Mod. 233; see damages for loss of the bargain. In 
 
 also ante p. 84-5. Kirtland v. Pounsett, 2 Tau. 145, the
 
 104 
 
 COMPLETION OF THE MENTAL ACT. 
 
 Acts in reliance 
 on Incomplete 
 promise make 
 it binding. 
 
 Even though 
 contract not 
 specifically 
 enforcible. 
 
 been litigated) that he is entitled to some damages — namely 
 to sufficient to reimburse him for the expences which 
 he has incurred. I cannot however think of any other 
 reason on which the rule that he cannot recover for the 
 loss of his bargain can be founded except the reason given, 
 that his promise is conditional, and if this reason be correct 
 it necessarily follows that the breach of the condition 
 makes the promise a nullity, and thence that he cannot 
 recover any damages at all. To prevent this consequence 
 Lord Hatherley maintained (a) that the implication of a 
 condition was not the real ground of the rule. 
 
 But acts done by the promisee or disponee in reliance on 
 the promise or disposition will cure the defect of Incom- 
 pleteness, even though it be certain that the terms were 
 not determined on, and even though this part performance 
 was not the result of any inducement on the promisor's 
 part except so far as the promise itself may be considered 
 an inducement. Such at least is the deduction which 
 (with some doubt as to whether they would be adhered to) 
 I make from the judicial decisions on the subject — in one 
 of which the duration of the estate (b), in another the price 
 (c), in another the rent (d) was left thus undetermined. And 
 I apprehend that even in case of a contract incapable of 
 being specifically enforced, damages might have been 
 recovered in equity, and may now be recovered on equitable 
 grounds, just as equitable considerations were taken into 
 account in determining in equity the sum payable for a 
 fraudulent breach of agreement (e) ; but the Court prefers 
 to enforce specific performance of something as nearly as 
 practicable resembling that agreed upon (/) rather than to 
 give pecuniary damages. 
 
 question was not alluded to, but the 
 report states that at an earlier point in 
 the case expences had been recovered 
 as money had and received. Sugden refers 
 to Wilde v. East, 4 Tau. 334 as sup- 
 porting the view advocated in the text. 
 
 (a) Bain v. Fothergill, L. R. 7 H. L 210. 
 (6) Knsel v. Watson, L. J. 48 Ch. 4 13. 
 
 (c) Powell v. Thomas, G Ha. 300. 
 
 (d) Gregory v. Mighell, 18 Vez. 328. 
 \e) Logan v. Weinholt, 1 C. & F. 611. 
 (/) Carey v. Stafford, 3 Swan. 427.
 
 COMPLETION OF THE MENTAL ACT. 
 
 105 
 
 But I apprehend that the payment of -money in reliance on 
 a promise would not be sufficient to validate a promise void 
 on this ground, as it certainly is not (a) to validate one void 
 on the ground of Informality; but I apprehend (though 
 there is no decision in point) that such money might be 
 recovered back on the ground of failure of consideration. 
 
 Intelligibility is also in some degree necessary, for if the 
 Court cannot possibly find a meaning for an instrument, 
 or for some of the terms in an instrument, such instrument 
 must be void; but if the Court can possibly, by application 
 of the rules of construction or otherwise, attribute a fair 
 meaning to the words used, it will do so, even though the 
 Judge may not believe that the party who used those words 
 had a distinct meaning in his mind, or may be able only to 
 guess what his meaning really was. And if words on the 
 face of them ambiguous cannot be interpreted without 
 taking into consideration the circumstances under which 
 they were used, the Court will take those circumstances 
 into consideration and admit oral evidence of them (6), espe- 
 cially if the question be whether a writing appearing to be 
 an offer was meant as such, or was merely meant to indicate 
 the terms on which an offer might possibly be made (c) ; 
 and evidence not only of extrinsic facts (d), but also of the 
 disponor's intentions (e), may be received to Identify the 
 person or thing meant where a description fits more than 
 one (/), or does not fit any one accurately, but not where 
 a name accurately fits one(g-) though a description may be 
 superadded to it which fits another (h) only; and this rule 
 applies to a Map {i) as well as to a written description. But 
 
 Payment of 
 money not 
 
 such an act. 
 
 Fourth 
 
 essential: 
 Intelligibility. 
 
 Unless words 
 capable of 
 
 construction. 
 
 Extrinsic 
 evidence: 
 How far 
 
 received to 
 construe words 
 Circumstances. 
 
 Intention: (as 
 to Subject and 
 Object). 
 
 (a) See Chapter on Exceptions to 
 Statute of Frauds. 
 
 (6) Charter v. Charter, L. R. 7 H. L. 
 364 (a Leading case); Gordon v. Gor- 
 don, L. R. 5 H. L. 255. 
 
 (c) Clever v. Kirkman, 33 L. T. N. 
 S. 672. [364. 
 
 (d) Charter v. Charter, L. R. 7 11. L. 
 
 (e) Hardwick v. Hardwick, L. R. 16 
 
 Eq. 175. 
 
 (/) Grant v. Grant, L. R. 
 8, L. R. 5 C. P. 727, (a leadi 
 
 (3) Hardwick v. Hardwick, 
 Eq. 175, (a leading case). 
 
 (ft) Fairer v. St. Catherine 
 L. R. 16 Lq. 19. 
 
 (») Lyle v. Richards, L.R. 1 
 
 2P.&M. 
 
 ng case). 
 
 L. R. 16 
 
 's College, 
 
 H.L.222. 
 
 14
 
 106 
 
 COMPLETION OF THE MENTAL ACT. 
 
 Subsequent 
 conduct. 
 
 Contemporanea 
 expositio. 
 
 Misleading 
 contract not 
 specifically 
 enforcible. 
 
 Construction 
 against the 
 promisor in 
 case of Condi- 
 tions of Sale. 
 
 Not in other 
 cases. 
 
 while by the Roman Law and the Law of Scotland the 
 subsequent acts of the parties may be taken into consider- 
 ation (a) ; they are (according to the better opinion) in 
 English Law wholly excluded (b), except as shewing the 
 interpretation of a Charitable (or perhaps of any) trust, so 
 as to establish for example that a trustee in the construction 
 he has put upon it has not committed a breach of trust (c). 
 
 The questions how far in other respects oral and extrinsic 
 evidence is admissible to interpret a written instrument, 
 and what meaning is to be attributed to different expres- 
 sions, are unsuited to a work like the present, and could 
 not be adequately dealt with in any moderate compass. I 
 therefore do not propose further to advert to them. 
 
 But the fact that the Court can put a meaning on a 
 contract will not entitle either of the parties to enforce it 
 specifically against another party who may probably have 
 been misled by some ambiguity in it (d) (as by a misleading 
 map) ; and if circumstances occur which if the misleading 
 clause were absent would disentitle the vendor even to 
 damages, he will be equally disentitled notwithstanding its 
 presence (e) ; while in other cases it would seem that he 
 may recover damages, though he be precluded by a mis- 
 leading condition from enforcing the contract specifically. 
 
 And even when a stipulation cannot be fairly described 
 as misleading, yet when it occurs in Conditions of Sale at 
 an Auction it will be interpreted as strongly as possible 
 against the vendor because he has prepared them at leisure, 
 while the purchaser is required suddenly and irrevocably 
 to decide whether to accept them or not (/). In other cases 
 the rule which formerly prevailed that words should be 
 
 (a) Ace. Forbes v. Walt, L. R. 2 Sc. 
 Ap. 214. 
 
 (6) 2 Dart, 884 (</) (r). 
 
 (o A It-Gen. v. Sidney, S. C, L. R. 
 4 Ch. 732. 
 
 118; Beioley v. Carter, L. R. 4 Ch. 230. 
 
 («) Torrance v. Bolton, L. R. 8 Ch. 1 1 8. 
 
 (/) Jones v. Clifford, L. R. 3 C. D. 
 779; Edwards v. Wkhuar, L. R. 1 Eq. 
 68; Waddle v. Woolfe. L. R.9 Q.B. 515; 
 
 (d) Torrance v. Bolton, L. R. 8 Ch. Hoy v. Smithies, 22 Bea. 510
 
 COMPLETION OF THE MENTAL ACT. 
 
 107 
 
 construed most strongly against the party using them has 
 been held to be overruled (a). 
 
 Part performance must on principle cure the defect 
 arising from the unintelligibility of some of the terms in a 
 contract or disposition, as well as that arising from their 
 not having been determined at all; but when the whole 
 contract or disposition in unintelligible, of course part 
 performance cannot avail (b). 
 
 No doubt the offer must be communicated to the promisee, 
 by or with the concurrence of the promisor ; and this applies 
 as well to a representation (c) as to a promise, and (it seems) 
 to a covenant though made by a deed poll (d), but not to a 
 disposition (e). 
 
 The acceptance of a right or interest by a person on 
 whom it is proposed to confer it would, on principle, be as 
 necessary to the transfer as is the action of the promisor or 
 disponor; and this is the general rule(/); and an accept- 
 ance in the mind of the acceptor will not be sufficient, 
 although on the other hand if the promisor points out the 
 act to be done as manifesting acceptance (or if his offer 
 implies as much) the doing of such an act is sufficient 
 though unknown to the offeror (g) ; and when the offer is 
 made by letter it is understood to imply that the acceptance 
 is to be returned by letter, so that the acceptance will 
 operate from the moment of posting it, even though it 
 never reaches the offeror (h). So when the promise or 
 
 Part perform- 
 ance. 
 
 Fifth essential : 
 Communica- 
 tion of offer. 
 
 Sixth essential : 
 Acceptance of 
 offer. 
 
 Must be 
 manifested. 
 
 May be implied 
 
 (a) Per Jessel, M. R., in Taylor v. 
 St.Helens, 8fc, L. R. 6 C. D. 270, citing 
 Grey v. Pearson, 6 H. L. C. 61, Roddy 
 v. Fitzgerald, 6 H. L. C. 823, and Abbot 
 v. Middleton, 7 H. L. C. 68. 
 
 (6) Franks v. Martin, 5 B. P. C. 151, 
 affg. S. C. 1 Eden. 309. 
 
 (c) Peek v. Gurney, L. R. 6 H. L. 377, 
 399, 400, 402, 412, 413. 
 
 (rf) See Green v. Home, 1 Salk. 197. 
 
 (e) See the cases cited below respect- 
 ing the validity of a disposition not 
 accepted by the disponee. 
 
 (/) Dunlopv.Higgins, lH.L. C.381; 
 
 Gunns Case, L. R. 3 Ch. 40-3-4 (a 
 leading case). 
 
 (g) On all these points, Brogden v. 
 Metropolitan R. Co , L. R. 2 Ap. 691-2, 
 and though Hebbs Case, L. R. 4 Eq. 9, 
 has been cited as militating against this 
 rule, it really depended on the opinion 
 of the Court that the Directors did 
 not intend their act to be an irrecov- 
 able acceptance. 
 
 (h) Dunlop v. Biggins, 1 H. L. C. 
 311; Household, fyc. Co. v. Grant, L. R. 
 4 Ex. D. 216; Harris's Case, L. R. 7 
 Ch. 589.
 
 108 
 
 COMPLETION OF THE MENTAL ACT. 
 
 Acceptance 
 implies a 
 counter 
 promise. 
 
 Acceptance 
 unnecessary 
 when promise, 
 &c. gratuitous. 
 
 And as to the 
 legal estate. 
 
 disposition is made on the terms that the promisee, &c. 
 shall render a valuable consideration for it, his acceptance 
 is considered to be sufficiently implied by his acting as 
 owner of the interest proposed to be conferred on him,- or 
 rendering a part of the stipulated consideration (a), or in 
 case of a representation, doing valuable acts in reliance on 
 it (b). But this only holds good when the acts done were 
 those which the promisor or representator contemplated as 
 the consideration of his promise or representation (c). 
 
 Acceptance by the offeree is held to be equivalent to a 
 promise on his part to render the stipulated consideration, 
 and binds him accordingly (d). 
 
 When a covenant or disposition is gratuitous, and the 
 right or interest conferred is not subject to any burthen 
 which could be onerous on the promisee or disponee, an 
 acceptance by the latter is unnecessary (e); and even when 
 it is thus burthensome, convenience requires that a dispo- 
 sition of the legal estate should operate without any 
 acceptance by the disponee, because otherwise difficulties 
 might occur in investigating titles, and this I conceive is 
 settled law (e), though the contrary has been sometimes 
 held (/) (i). 
 
 (i) In Hill v. Wilson, L. R. 8 Ch. 896, it was laid down that acceptance is 
 necessary to the validity of a gift, and was on this ground held that a sum of 
 money sent as a gift but received as a loan must be deemed a loan. I do not 
 however see how the principle laid down could conduce to that decision, for 
 both parties on a loan of money intend that the particular coins advanced shall 
 become the absolute property of the borrower — as to those coins a loan is the 
 same as a gift; the only difference between a loan and a gift of money is that 
 in case of the loan another sum of equal value must be repaid as consideration, 
 whereas in case of a gift this is not necessary, and on principle the consent of 
 both would be necessary to vest the right to this consideration in the lender. 
 Still the decision in Hill v. Wilson, so far as it goes, is adverse to the doctrine 
 in the text. 
 
 Evans, 5 E. & B. 380-1; Butler $ 
 Baker's Case, (a leading case),3 Co. 25a. 
 (/) Especially by Lord Romilly in 
 Peacock v. Eastland, L. R. 16 Eq. 20, 
 (a case of great practical importance but 
 one in which the M. R. cited as an 
 authority that decision in Thompson v. 
 Leach, 2 Vent. 198, which the House 
 of Lords afterwards reversed) and by 
 the dicta of the Q. B. in Townson v. 
 Tickell, 3B. & A. 31. 
 
 (a) Said Brogden v. Metropolitan It. 
 Co., L. R. 2 Ap. 691. 
 
 (6) Hammersley v. Be Beil, 12 C. & 
 F. 45; Prole v. Soady, 2 Giff. 1 ; Morton 
 v. Tewart. 2 Y. & C. C. C. 87 ; Montacue 
 v. Maxwell, I Str. 235. 
 
 (c) Jorden v. Money, (as to the house 
 at Midnapore), 5 H. L. C. 185. 
 
 (rf) Grettonv. Mees, L. R. 7 C. D. 839. 
 
 (e) Thompson v. Leach, Show. P. C. 
 297 rvg S. C. 2 "Vent. 198; Siggers v.
 
 COMPLETION OF THE MENTAL ACT. 
 
 109 
 
 And this principle which renders an acceptance unne- 
 cessary is peculiarly applicable to dispositions on trust 
 when the trust is expressed under such circumstances that 
 the law will immediately transfer the legal estate from 
 the person to whom it is granted to him on trust for whom 
 he is directed to hold (a), and accordingly even those who 
 have questioned its applicability in other cases acknow- 
 ledge it in this (b). 
 
 When the offeror has a legal power to bind the offeree, 
 an acceptance is unnecessary even to a contract, as when 
 the offer consists in a notice to treat for a compulsory pur- 
 chase under the Lands Clauses Act (c). 
 
 A Retraction of the offer, when communicated to the 
 offeree or his agent or dropped into the Post, makes void an 
 acceptance (or act equivalent thereto) occurring after such 
 communication (d) or (e) posting. A Rejection by the 
 offeree, or neglect on his part for an unreasonable period 
 (/) to decide whether he will accept (g) or not, the Bank- 
 rutpcy (g) or Death (Zs) of the offeror, and also, I conceive, 
 the Bankruptcy, certainly the Death, of the offeree will 
 make void any subsequent acceptance. A disposition of 
 the legal estate, though it be effectual without acceptance, 
 can be rendered ineffectual by a Disclaimer, which not 
 only transfers it back to the grantor, but also places his 
 rights and those of the grantee on the same footing as if 
 the disposition had never been made (/), except so far 
 as the rights of third persons are concerned (J), and it is 
 
 Especially 
 when disposi- 
 tion operates 
 under the 
 Statute of 
 Uses. 
 
 And in case of 
 
 compulsory 
 
 purchase. 
 
 How accept- 
 ance invali- 
 dated. 
 Retraction. 
 
 Rejection, &c. 
 
 Bankruptcy. 
 Death. 
 
 Disclaimer. 
 
 (a) 27 H. VIII, c. 10; Sugd. Power 
 (8th Ed.), p. 8, pi. 11. 
 
 (6) p. Lord Romiixy, Peacock v. 
 Eastland, L. R. 10 Eq. 20. 
 
 (c) Steel v. M. Liverpool, 7 B. & S. 
 261; re Marylebom, fyc, exp. Edwards, 
 L. R. 12 Eq. 389. 
 
 (<f) lioutledge v. Grant, 4 Bing. 653. 
 
 (e) See Harris's Case, L. R- 7 Ch. 589. 
 
 (/) Re Bowron exp. Bailey, L. R. 3 
 Ch. 595; Ramsgate, Sfc. Co. V. Montefiore, 
 L. R. 1 Ex. 1 09 ; Meynell v. Surtees, 25 L. 
 J. Ch. 257; Household Co. v. Grant, L. 
 
 R. 4 Ex. 216. 
 
 (<;) Meynell v. Surtees, 25 L. J. Ch. 
 257; Richard v. North Ln. R., L. R. 5 
 Eq. 358. 
 
 (/i) Carr v. Livingtane, 35 Bea. 41 ; 
 said Garnett v. Acton, 28 Bea. 333; and 
 that the death of the representor ter- 
 minates the representation, Thynne v. 
 E. Glengal, 2 H. L. C. 153, Bawdes v. 
 Amherst Pre. Ch. 402. 
 
 (i) Butler Sf Baker's Case, 3 Co. 25a; 
 Townsend v. Tukell, 3 B. & A. 31. 
 
 (j) Butler # Baker's Case, 3 Co. 25a; 
 especially 28b to 29b.
 
 110 COMPLETION OF THE MENTAL ACT. 
 
 this exception which alone distinguishes the Disclaimer 
 from a Rejection. Acts of ownership exercised over the 
 subject of a disposition preclude the disponee from after- 
 wards disclaiming it (a) ; but an oral acceptance does not 
 (b). Possibly an acceptance made by deed might have that 
 effect. 
 Qualified A qualified acceptance, that is one which accepts some- 
 
 Ope?ates°not as thin & differing (though only by addition (c)) from what was 
 acceptance, proposed, is void as an acceptance unless the term which it 
 adds be merely one which the law would imply id) ; and if 
 the promise be to dispose of specified property, and the 
 offeree supposes it to refer to other property and accepts it 
 as so referring, his acceptee is held to be thus qualified (e) ; 
 but if there be a fair ambiguity in an acceptance the Court 
 B ut as inclines to treat it as unqualified (/). But a qualified 
 
 rejection of acceptance, though void as an acceptance, is held to imply 
 a rejection of the offer so as to disentitle the party who 
 makes it from afterwards binding the promisor by accepting 
 And as counter his offer (g) ; but it operates as a new offer on the terms of 
 offer. ^g or jg{ na i offer as qualified (h), and as such the original 
 
 offeror may accept it (?'). 
 Election for or The doctrine of Election seems to me to be more of kin to 
 
 against instru- th e branch of the law now under discussion than to any 
 
 ment. 
 
 Rule. other. It is this — that an attempt to dispose of another's 
 
 property, contained in an instrument which also confers 
 
 benefits upon him, implies that these benefits are conferred 
 
 on the condition that he shall either give effect to the 
 
 attempted disposition, or pay to those who (if it had been 
 
 effectual) would have been interested under it pecuniary 
 
 (n) Butler Sf Baker's Case, 3 Co. 26a; (e) Kennedy v. Lee, 3 Mer. 448 I 5, 
 
 exp. Brook re Roberts, L. R. 10 C. D. as qualified by S. C. 451, 1. 14, 17. 
 
 100. (f) English, q-c.Co.v.Arduin, L. R. 5 
 
 (6) Bence v. Gilpin, L. R. 3 Ex. 76. H. L. 64. 
 
 (c) Pentelows Case, L. R. 4 Ch. 178; (g) Hyde v. Wrench, 3 Bea. 334. 
 Honeyman v. Marryat, 6 H. L. C. 112. (A) Stonesv. Dowler, 29 L.J. Ex. 122. 
 
 (d) Port Canning L. Co, v. Smith, L. (i) Stones v. Dowler, ib. 
 R. 5 P. C. 114.
 
 COMPLETION OF THE MENTAL ACT. Ill 
 
 compensation, not exceeding the value of the benefits so 
 
 conferred, or that of the interests which they would have 
 
 been entitled to under the disposition, whichever shall be 
 
 least (a) ; and the rule applies even though the party 
 
 conferring the benefits did not know that the property 
 
 which he attempted to dispose of belonged to the person on 
 
 whom the benefits were conferred, and even though it did 
 
 not in fact then belong to him, but he afterwards became 
 
 the owner of it by operation of law, or I apprehend by any 
 
 gratuitous disposition (b) : but the rule does not hold when Exception. 
 
 it is by the same instrument which confers the benefits 
 
 that the subject attempted to be disposed of becomes the 
 
 property of the person on whom they are conferred; as 
 
 when one, having a power to appoint property to any of the 
 
 children of A confers a benefit on a child of A, and by the 
 
 same instrument which confers it appoints the property to 
 
 the same child and superadds a condition or trust for some 
 
 person who is not an object of the power which condition 
 
 or trust is therefore void (c). Acceptance of the benefits How made. 
 
 by the party on whom they were conferred does not 
 
 preclude him from afterwards restoring them and refusing 
 
 to give effect to the disposition (d) ; but if he restore them 
 
 he must restore also the income which he derived from 
 
 them and the value of the other advantages (if any) which 
 
 he so derived (d). To preclude him, it is necessary that he 
 
 should have at least manifested a choice (e), as for example 
 
 by acquiescing in attempts made to sell under the trusts of 
 
 the attempted disposition (/). Before being required to Conditions of 
 
 elea, he is entitled to have full information to enable him ma k S e ation to 
 
 to judge which course is most for his interest (g) ; and if the 
 
 (n) Cooper v. Cooper, L. R. 7 H.L. 53; (c) Wollaston v. King, L. R.8Eq. 165. 
 
 Rogers v. Jones, L. R. 3 C. D. 688 ; (rf) Codrington v. Codrington, L. R. 7 
 
 (both leading cases); Piikersgillv. Rod- H. L. 868, 8 Ch. 594. 
 
 ger, L. R. 5 C. D. 163; and for some- (e) Wilson v. Thornbury, L. R. 10 Ch. 
 
 what elaborate minutes of decree in a 239. 
 
 complicated case, see Griggs v. Gibson, (/) Deuiarv. Maitland, L. R. 2 Eq. 834. 
 
 L. R. 1 Eq. 692-3. (</) Douglas v. Douglas, L: R. 12 Eq. 
 
 (b) Coopery. Cooper, 7 H. L. 70-1. 617; Wilson v. Thornbury, L.R. 10 Ch. 239.
 
 112 
 
 COMPLETION OF THE MENTAL ACT. 
 
 Election by 
 widow between 
 Devise from 
 husband and 
 Dower. 
 
 party be under any disability (even that of coverture (a)) 
 the Court will make the election. 
 
 A widow is on similar grounds required to elect between 
 benefits conferred on her by her husband's will and her 
 right to Dower or Freebench out of his estates, provided the 
 benefits are such as (in the eye of the law) imply an inten- 
 tion that she shall be excluded from dower (b). 
 
 (a) Cooper v. Cooper, L. R. 7 H. L. (6) 3 & 4 Wm. IV, c. 104, ss. 9 10; 
 67-8. Thompson v. Burra, L. R. 16 Eq. 592.
 
 ( 113 ) 
 
 CHAPTER XII. 
 
 ADEQUACY OF THE MENTAL ACT IN GENERAL AS AFFECTING 
 THE VALIDITY OF CONTRACTS, &C. 
 
 In the last chapter I considered whether the Mental Act 
 of contracting was performed at all or not, and I pointed 
 out that if it be not performed at all neither party can be 
 bound, unless the circumstances are sufficient to fasten 
 upon him the guilt of unfair dealing. In the following 
 chapters I will consider whether it has been performed 
 adequately, and will point out that if either party performs 
 it inadequately he is not bound until either some third 
 person has acquired an interest under the contract (a), or 
 he himself has (under circumstances which render the 
 performance of it (the mental act) adequate (b), and 
 with knowledge of the invalidity of the former transac- 
 tion (c) ) confirmed it (d), or (what is the same thing) 
 continued to act (e) under it or to take the benefit of it (e), 
 or has become incapable (/) of restoring the benefits which 
 he had derived under it, or (in case he is defending himself 
 against an action for damages) has neglected to actually 
 restore them (g) (i), or (perhaps) has (since the Judicature 
 
 (i) In the cases here referred to Fraud was the cause of invalidity, and 
 the injured party was therefore able to recover damages for the injury. 
 The reasons given for the rule would apply also to cases in which other cir- 
 cumstances were the cause of invalidity, but whether the rule itself extends to 
 these seems doubtful for in them there seems to be no remedy but rescission. 
 The rule was established in an action for damages, and in a question as to the 
 validity of a release, and it may be a question whether it applies at all in an 
 action for specific restitution. 
 
 (a) As to Fraud, Oakes v. Turquand, 
 L. R. 2 H. L. 325 ; as to Lunacy, Motion 
 V. Camroux, 4 Ex. 17. 
 
 (6) Moxon v. Payne, L. R. 8 Ch. 881. 
 
 (c) Kempson v. Ashbee, L. R. 10 Ch. 
 15; Savery v. King, 5 H. L. C. 607. 
 
 (d) Matthews v. Baxter, L. R. 8 Ex. 
 132 ; as to what shall be deemed a con- 
 firmation, Trowell v. Shenton, L. R. 8 C. 
 D. 318. 
 
 Inadequacy of 
 the assent of 
 party to a 
 contract exon- 
 erates him. 
 Until he be 
 precluded from 
 avoiding it. 
 
 («) Dawes v. Harness, L. R. 10 C.P. 
 166 ; Jarrett v.Aldams, L R. 9 Eq. 463 ; 
 Cornwall v. Hawkins, L. J. 41 Ch. 435. 
 
 (f) Urquhatt v. Macpkerson, L. R. 3 
 Ap. 83 1 ; Clarke v. Dickson, E. B. & E. 148. 
 
 (g) Infancy exp. Taylor re Burrows, 
 8 D. G. M. G. 254; Birkenhead, $r. R. 
 Co. v. Pitcher, 5 Ex. 121 ; said Clarke v. 
 Dickson, E. B. & E. 150-1. 
 
 15
 
 114 ADEQUACY OF THE MENTAL ACT IN GENERAL, &C. 
 
 And as regards 
 a contract 
 made in infancy- 
 he cannot be 
 thus precluded. 
 It does not 
 exonerate the 
 opposite party. 
 Unless the 
 former avoids 
 it. 
 
 Confirmation 
 and avoidance 
 preclude each 
 other. 
 
 Contracts 
 sometimes 
 voidable by 
 either party. 
 
 How far this 
 principle 
 applies to 
 Dispositions. 
 
 Acts) filed a counter-claim for rescission offering to restore 
 them: while a contract made during Infancy is subject in 
 this respect to special legislation, for no confirmation of it 
 is valid, and even the repetition of a promise to pay a debt 
 contracted during infancy is void (a). But the opposite 
 party who has adequately performed the mental act is in 
 general (b) bound unless and until the former party either 
 acts in a manner inconsistent with the contract, &c, as by 
 otherwise disposing of property which passed from Kim 
 under it (c), or by taking legal proceedings to recover such 
 property from the opposite party (d), or refuses (e) to perform 
 the contract &c, or declares it at an end (/). Of course 
 when, under circumstances rendering adequate the mental 
 act, the party who was not originally bound confirms the 
 contract, or does any act equivalent to confirming it, he can- 
 not afterwards avoid it ; and when he avoids it he cannot 
 afterwards confirm it. The efecl of Rescission has already 
 been explained (g). In some instances Rescission on 
 the ground of fraud and Damages for the fraud have been 
 granted in the same action (h). 
 
 In general such contracts are voidable by one party 
 only, but instances may occur in which both parties are 
 incapable of adequately contracting. 
 
 Circumstances sufficient to invalidate a contract invali- 
 date a disposition also, as regards the beneficial interest ; 
 and such of them as are easily detected (for example 
 Lunacy) invalidate it even as regards the legal estate (i) ; 
 but those whose existence cannot be determined without 
 
 (a) 37 & 38 Vic, c. 62, s. 2 ; Coxhead 
 v, Mullis, L. R. 3 C. P. D. 439. 
 
 (6) Said Matthews v. Baxter, L. R. 8 
 Ex. 138; for a qualification see Symons' 
 Case, L. R. 5 Ch. 298. 
 (c) Inman v. Inman, L. R. 15 Eq. 265. 
 
 (d) Magdalen H. v. Knotts, L. R. 8 C. 
 D. 726, a case which on further appeal 
 was decided on another point. 
 
 (e) Re Commercial Bank, Sfc. Wilsons 
 
 Case, L. R. 8 Eq. 240. 
 
 (f) Reese River M. Co. v. Smith, L. R. 
 4 H. L. 74. 
 
 (g) Ante p. 93. 
 
 (/t) Hart v. Sivaine, L. R. 7 C. D. 42, 
 which also decides that damages may 
 be recovered for a misstatement made 
 by mistake as if it had been made by 
 fraud (but qu). 
 
 (i) Bally. Mannin, 3 Bli. N. S. 1.
 
 ADEQUACY OF THE MENTAL ACT IN GENERAL, &C. 115 
 
 inquiring into complicated circumstances, nor perhaps at 
 all with certainty, (as for example Undue Influence) are 
 not allowed to have this latter effect lest (a) the deduction 
 of titles should become too difficult, but merely entitle the 
 disponor to require the other party to reconvey the legal 
 estate to him (b). 
 
 The circumstances about to be discussed do not in Whether it 
 general render a contract or disposition void, but merely ^a'or ^ 
 entitle the party who has inadequately performed the mental voidable, 
 act to make it so (c) ; but this does not imply that any 
 act or word is necessary to enable him on the ground of 
 its invalidity to take or resist legal proceedings, for his taking 
 or resisting them is itself a sufficient avoidance (d). 
 
 The circumstances which are necessary to render the classification 
 
 mental act adequate may be distributed into three classes °f validating 
 
 circumstances. 
 — Ability, Deliberation, and Independence of Judgment. 
 
 (a) Clarkev.Malpas, L.J. 31 Ch.696. Ap. 831. 
 
 (b) Clarke v. Malpas. (<f) Said Magdalen H. v. Knotts, L. 
 
 (c) Oakes v. Tarquand, L. R. 2 H. L. R. 8 C. D. 726, decided by the Lords 
 346 ; Urquhart v. Macpherson, L. R. 3 on another point.
 
 ( 116 ) 
 
 CHAPTER XIII. 
 
 ABILITY TO PERFORM THE MENTAL ACT, AS AFFECTING THE 
 VALIDITY OF CONTRACTS, &C 
 
 Insanity: As 
 affecting 
 
 Contracts, &c. 
 ■with or to those 
 ignorant of it. 
 
 Contracts, &c. 
 ■with or to those 
 cognizant of it. 
 
 Insanity (whether amounting to Idiocy (a), or to Lunacy, 
 (b), or falling short of both (c)) invalidates dealings by the 
 insane party in certain cases; but as to the precise extent 
 of this doctrine the law is unsettled. 
 
 A Contract (d) or Disposition (e) made for valuable 
 consideration with or to a person ignorant of the Insanity 
 is not void but voidable. This appears from the decisions 
 that if a lunatic wholly (/) or partly (g) performs such a 
 contract while the other party still continues ignorant (h) 
 neither the lunatic (i) nor his representatives (/) can 
 recover back what was so rendered, but they are permitted 
 to affirm the whole contract, (k), which of course they could 
 not do if it had been originally void. But it would seem 
 (though not yet decided) that such a contract is voidable 
 by the lunatic at any time before it has been partly per- 
 formed, and afterwards if he will forfeit the part so 
 performed (/). A lunatic's promise to pay for necessaries 
 is valid (in). 
 
 A Contract or Disposition made for valuable consideration 
 
 (a) For a definition of Idiocy see 
 Ball v. Mannin, 3 Bli. N. S. 1. 
 
 (b) For a definition of Lunacy see 
 Smith v. Tibbett, L. R. 1 P. & M. 398 ; 
 Queen v. Shaw, L. R. 1 C. C. R. 145; 
 Broughton v. Knight, L. R.3P.& M. 64. 
 The duties of the Committee of a Lun- 
 atic's estate are considered in Carrow v. 
 Ferrier, L. R. 3 Ch. 719. 
 
 (c) Ball v. Mannin, 3 Bli. N. S. 1. 
 
 (d) Molton v. Camroux, 4 Ex. 17; 
 Beavan v. Mc. Donnell, 9 Ex. 309. 
 
 (e) Campbellw. Hooper, 3 S.& G. 153. 
 
 (f) Molton v. Camroux, 4 Ex. 17. 
 
 (g) Beavan v. Mc. Donnell, 9 Ex. 309. 
 (h) This occurred in the cases cited, 
 
 hut it is not clear that it was considered 
 necessary. 
 
 (i) Beavan v. Mc. Donnell. 
 
 (j) Molton v. Camroux. 
 
 (fc) Beavan v. Mc. Donnell. 
 
 (£) But this is doubted in Baxter v. 
 L. Portsmouth, 5 B. & C. 173. 
 
 (»n) Re Wood, 1 D. G. J. S. 465, 
 qualified by Richardson v. Du Bois, L. R. 
 5 Q. B. 51.
 
 ABILITY TO PERFORM THE MENTAL ACT, &C. 117 
 
 with or to a person cognizant of the insanity would seem 
 from the language of the above cases to be deemed fraudu- 
 lent on the part of the party so cognizant (a), and 
 to be voidable like other fraudulent contracts, so that an 
 insane party can recover back anything he had rendered 
 by way of part performance upon the terms of his restoring 
 anything he has obtained. 
 
 Gratuitous Dispositions by an insane person are void Gratuitous 
 
 Dispositions, 
 even as to the legal estate (b), whether they be testamentary 
 
 (c) or not (d); and though in the cases which have occurred 
 
 of non-testamentary dispositions the other party has known 
 
 of the insanity, such knowledge does not seem to be 
 
 necessary. 
 
 Infancy under twenty-one years makes void all such stip- In fancy: As 
 
 ulations made during the infancy as cannot turn out for the Contracts. 
 
 infant's advantage (e) ; and all contracts made on or after 7th 
 
 August, 1874 (/_) for the repayment of money lent or goods 
 
 (not being necessaries) supplied or to be supplied, and all 
 
 contracts made after the cessation of the infancy to pay 
 
 debts contracted during the infancy (g). It makes voidable 
 
 all such contracts as may or may not be for his benefit (h). 
 
 And it does not affect such contracts as are unmistake- 
 
 ably for his benefit (»), nor contracts to pay for necessaries 
 
 Rescission by an infant of a contract under which he has Rescission. 
 both received and rendered consideration does not entitle 
 him to recover back any of the consideration which he has 
 rendered (k), and it has been even said that if he pays 
 money without consideration he cannot recover it back (/). 
 
 (a) See Baxter v. L. Portsmouth, 5 (g) s. 2. 
 
 B. & C. 172. (h) White v. Cox, L. R. 2 C. D. 387. 
 
 (6) Ball v. Mannin, 3 Bli. N. S. 1. (i) Leslie v. Fitzpatrick, L. R. 3 Q. 
 
 (c) Smith v. Tibbett, L. R. 1 P. & M. B. D. 229. 
 
 398 ; Broughton v. Knight, L. R. 3 P. & (j) Ryde v. Wombwell, L. R. 4 Ex. 32. 
 
 M. 64. (it) Exp. Taylor re Surroics, 8 D. G. 
 
 (d) Ball v. Mannin, 3 Bli. N. S. 1. M. G.254; Holmesv.Blogg, 2 Moo.552. 
 
 (e) Regina y. Lord, 12 C. B. 757. (/) Holmes v. £logg. 
 
 (f) 37 & 38 Vic, c. 62, s. 1.
 
 118 ABILITY TO PERFORM THE MENTAL ACT, &C. 
 
 Dispositions. 
 Invalid, 
 
 Except certain 
 Feoffments. 
 
 Appointments 
 
 And Settle- 
 ments. 
 
 When void and 
 when voidable. 
 If made by- 
 deed or 
 delivery. 
 
 Conveyance by- 
 Infant Trustee. 
 
 If made 
 neither by- 
 deed nor by- 
 delivery. 
 
 Confirmation 
 and Avoidance 
 during Infancy. 
 
 A Disposition by an infant is at least voidable, though it 
 be given to secure payment for necessaries (a) unless it be 
 a Feoffment of lands situate in a locality where a custom 
 prevails that an infant may convey them by feoffment (6), 
 or be an Appointment under a power technically con- 
 ferred by a previous instrument and expressing or implying 
 that the donee may exercise it during his infancy (c) 
 (i), or be a Marriage Settlement made under the authority^ 
 of the High Court and under the conditions prescribed by 
 the Statutes applicable to that subject (d). 
 
 But it is confirmable if it be made by deed (e), or by 
 delivery (/), though it be by way of security (g), unless 
 perhaps circumstances occur rendering it more for the 
 infant's benefit that he should be incapable of affirming it 
 (A). Consequently a conveyance of the legal estate by an 
 infant trustee is only voidable, and the Court will restrain 
 him from avoiding it (i) ; but still, if he were to avoid it, 
 though the act would be wrongful it would be effectual, and 
 therefore a title cannot be safely taken under such a con- 
 veyance (_;). A Disposition by an infant not made by deed 
 nor by delivery is void or voidable, whichever tends most to 
 promote the interest of the infant (k). A Testamentary 
 Disposition by an infant is void (/). 
 
 An infant cannot either avoid (m) or confirm (n) avoidable 
 
 (i) Consequently anyone in disposing of property can as to that property 
 practically do away with the disability of the infancy of anyone to whom he 
 gives it provided the rules which prevent undue restrictions on alienation be 
 not violated. 
 
 (n) Yet a Plaintiff suing for the consideration of a disposition made during 
 infancy, and thus affirming the disposition, will be presumed to have attained 
 full age unless the contrary be proved, Fitxmaurice v. Waugh, 3 D. & R. 273. 
 
 (a) Martin v. Gale, L. R 4 CD. 428. 
 (6) 2 Davidson's Conv. 224. 
 
 (c) Cardross's Settlement, L. R. 7 C. 
 D. 728. 
 
 (d) 18 & 19 Vic, c.43; 23 & 24 Vic, 
 c. 83: See Field v. Moore, 7 D. G. M. 
 G. 691. 
 
 (e) Lewin on Trusts (5th Ed.) 32, 
 and especially Zouch v. Parsons, 1 Bl. 
 575, approved Allen v. Allen, 2 D. & 
 War. 307. 
 
 (f) Lewin Supra. 
 
 (g) Kay v. Smith, 21 Bea. 522. 
 
 (h) Said Zouch v. Parsons, 1 Bl. 578. 
 
 (i) v. Handcock, 17 Vez. 383. 
 
 (i) Said Allen v. Allen, 2 D. & War. 
 339. 
 
 (it) Lewin on Trusts (5th Ed.), 33 (6). 
 
 (/) 7 Wm. IV and 1 Vic, c.26, s. 7. 
 
 (m) Zouch v. Parsons, 1 Bl. 578; 
 Slator v. Brady, 14 Ir. C. L. 61.
 
 ABILITY TO PERFORM THE MENTAL ACT, &C. 119 
 
 disposition made by him until he has attained 21, and an 
 act inconsistent with his disposition but not communicated 
 to the disponee will not be a sufficient avoidance of the 
 disposition, at least if the disposition be a lease under 
 which the lessee is in possession (a). 
 
 The inconvenience arising from the inability of an infant 
 to make a marriage settlement otherwise than under the 
 Statute above alluded to is sometimes practically obviated 
 by the rule that the husband if of full age can bind such of 
 his wife's chattels as by law pass to him on the marriage 
 (b); and though a settlement purport to be made by an 
 infant the other parties to it will be bound as having 
 assented under the doctrine already explained (c) ; and if the 
 settlement confers benefits on the infant, and also purports 
 to dispose of such infant's property, the infant will under 
 the doctrine of election (d) be bound to choose between 
 relinquishing the benefits and effectuating the disposition, 
 or compensating the intended disponees (e). And some if 
 these inconveniences are obviated by the powers of the 
 guardian (/). 
 
 Of course a gift to an infant is as irrevocable as a gift to 
 any other person (g). 
 
 Infancy is no defence against fraud (h). 
 
 Slight Drunkenness does not invalidate a contract (*), but 
 drunkenness sufficient to prevent the party knowing what 
 he is about renders a contract (j) or disposition (k) by 
 him not void but voidable even as to the legal estate (i). 
 
 Expedients for 
 obviating the 
 difficulties 
 arising from 
 Infant's inabi- 
 lity to make a 
 Settlement. 
 
 Gift to Infant. 
 
 Fraud. 
 Drunkenness. 
 
 (1) Qu. If non est factum can be pleaded to an action on the deed, the legal 
 estate cannot have passed. 
 
 («) Slator v. Brady, 14 Ir. C. L. 61. 
 
 (b) Simson v. Jones, 2 R. & M, 376; 
 Trollope v. Linton, I S. & St. 485. As 
 to what cbattels thus pass see ante. p. 55. 
 
 (c) Ante. p. 95 (e). 
 
 (d) Ante p. 110. 
 
 (c) Brown v. Brown, L. R. 2 Eq. 481 ; 
 and see Codrington v. Codrington, L. R. 
 7 H. L. 854. 
 
 (f) Michael v. Fripp, L. R. 7 Eq. 95. 
 
 (g) Smith v. Smith, 7 C. & P. 401. 
 (Ji) Exp. Unity, fyc. Association re 
 King, 3 D. G. J. 63. 
 
 (i) Lightfoot v. Heron, 3 Y. & C. Ex. 
 586. 
 
 0) Matthews v. Baxter, L. R. 8 Ex. 
 132. 
 
 (k) Butler v.MidvihiUl Bli. 137, where 
 rights derived under the Lease were 
 supported.
 
 120 ABILITY TO PERFORM THE MENTAL ACT, &C. 
 
 So a destruction (a) of the party's intellect by excessive 
 drinking invalidates his contracts and dispositions, but the 
 impairing of it does not (a). 
 
 Whether there can be a degree of drunkenness so 
 extreme as to make a contract &c. absolutely void is still 
 doubtful (b); the latest case is against such a doctrine (c). 
 
 (a) Said Shaw v. Thaclcray, 1 S. & Gore v. Gibson, 13 M. & W. 623. 
 
 M. 540. (c) Matthews v. Baxter, L. R. 8 Ex. 
 
 (b) See Notes in 1 Bli. 161, and 132, commenting on Gore v. Gibson.
 
 ( 121 ) 
 
 CHAPTER XIV. 
 
 DELIBERATION IN PERFORMING THE MENTAL ACT AS AFFECTING 
 THE VALIDITY OF CONTRACTS, &C. 
 
 Surprise (which occurs when a party is hurried into a Surprise, 
 contract or disposition before he has had time to consult 
 his natural or legal advisers or to give the matter adequate 
 thought) entitles him to avoid the contract or disposition [a), 
 at least if he has been so hurried by the contrivance of the 
 opposite party (b). But surprise never makes a contract or 
 disposition void (c); and since it is preeminently a circum- 
 stance depending on the judge's appreciation of the fads, 
 it never makes a disposition even voidable as regards the 
 legal estate (c), though it entitles the party who avoids the 
 disposition as to the beneficial estate to require a reconvey- 
 ance of the legal (c). Improbability that the party under- Failure to 
 stood the transaction may also be a ground of invalidity, terms# 
 and this also has been termed "Surprise" (d). 
 
 The furthest extent to which the doctrine of surprise has (Extreme case 
 ever been carried was in the following case (e), which on bur P nse > 
 seems to me to go so much beyond the limit which principle 
 warrants that I would not allude to it but that it has 
 recently been cited by Lord Hatherley (/) in the House of 
 Lords: — A man who was in poor circumstances, and 
 working as a journeyman at a trade, was entitled as heir of 
 his deceased sister to a fee-simple estate worth £i,joo, and 
 his sister's husband was in possession claiming under her 
 
 (<x) Griggs v. Staplee, 2 D. G. S. 586; 
 Clarke v. Malpas, L.J. 31 Ch.690; Wood 
 v. Abrty, 3 Madd. 417; Kerneysv. Han- 
 sard, Coop. 125; Beasley v. Magrath, 2 
 S. & L.31 ; Deane v. Rastron, 1 Anst. 64; 
 and see Curson v. Bilworthy, 3 H. L. C. 
 742. 
 
 (.&) Occurred in above cases. That 
 
 absence of advice does not invalidate 
 unless contrived by the disponee is 
 decided in Harrison v. Guest, 6 D. M. 
 G. 433. 
 
 (c) Clarke v. Malpas, L. J. 31 Ch. 690. 
 
 (d) Willan v. Willan, 16 Vez. 72. 
 
 (e) Evans v. Llewellin, 1 Cox. 333. 
 (/) L. R. 2 App. 823. 
 
 16
 
 122 DELIBERATION IN PERFORMING THE MENTAL ACT, &C. 
 
 will, which will was invalid, but yet plainly indicated her 
 intention, and was invalid only because she was a married 
 woman. The husband or those acting on his behalf 
 explained these circumstances to the brother, and requested 
 him to carry out his sister's intention by releasing his right, 
 and offered to pay him £200 if he would do so, but advised 
 him to consult his wife and friends before deciding. He at 
 once consented to give a release, and after a few days he 
 actually gave it. Yet Lord Kenyon set aside the release 
 on the ground that sufficient time had not been allowed to 
 the man to consult his friends, and that the sum of £100 
 (which the learned Lord treated as a price for the release . 
 but which was in reality a douceur) was less than the value 
 of the land. The object of the transaction was to enable 
 the husband to make a good title to a person to whom he 
 had agreed to sell. The interviews took place at a tavern 
 into which the parties interested invited the brother for 
 that purpose. Lord Kenyon said that if the man had in 
 fact gone back and consulted his friends he would not have 
 set aside the transaction (a). 
 .... f For the purpose of ensuring Deliberation, and affording 
 
 ensuring a simple test of its existence, the law prescribes certain 
 
 Generally. ' Formalities as generally necessary to the validity of 
 contracts and dispositions made gratuitously or for the 
 purpose of barring an entail. 
 
 The question what formalities are necessary for the 
 tofoJSwes" disposition of the Legal estate falls for discussion under the 
 for passing the chapters on Priorities, for the regulation of Priorities is the 
 eg es a e;. ^^ office subserved by the Legal estate, and the ascertain- 
 ment of title is the primary object of the formalities 
 prescribed for its transfer, although it must, I think, be 
 considered an universal rule that whatever formalities are 
 sufficient in any given case for the ascertainment of title 
 by the disposition of the legal estate are also sufficient for 
 ensuring deliberation (b). 
 
 (a) 1 Cox 341. (6) Below p. 125.
 
 DELIBERATION IN PERFORMING THE MENTAL ACT, &C. 123 
 
 The Formalities for ensuring Deliberation in case of a 
 gratuitous contract or disposition (for a gratuitous repre- 
 sentation would be a nullity) consist in general of a Deed 
 (a); but this simple rule is by no means universal, for 
 partly from historical and partly from other causes the 
 same complexity is found in this as in other branches of 
 our law. To pass to details : — 
 
 The beneficial estate in every kind of property can be 
 transferred for valuable consideration without any other 
 formalities than those (if any) which are prescribed for 
 evidencing the transaction, and that either per verba de 
 prcesenti ox per verba de futnw — but only if the transaction be 
 such as equity will specifically enforce (b). And this 
 applies to dispositions under powers authorizing the donee 
 to dispose of the property, though they may prescribe 
 other formalities (c) except perhaps when made by a 
 married woman (d). And in the case of a disposition under 
 a power, certain relationships between the disponee and 
 disponor are deemed equivalent to valuable consideration (e). 
 
 The beneficial interest in every kind of property can be 
 transferred testamentarily (/) by a writing signed and 
 attested as the Wills Act prescribes (g), or as regards 
 personal estate executed and attested as the law of either 
 the place where it is made, or the testator's then domicil, or 
 his domicil of origin prescribes (h). And the former mode 
 at least extends to dispositions under powers prescribing 
 other formalities (i). 
 
 The beneficial interest in every kind of property can be 
 gratuitously transferred non-testamentarily without any 
 other formalities (J) than those prescribed for evidencing 
 
 (e) Ante p. 77 (c); Kennard v. Ken- 
 nard, L. R. 8 Ch. 227; Bruce v. Bruce, 
 L. R. 11 Eq. 371. 
 
 (f) 7 Wm. IV & 1 Vic, c. 26, s. 3. 
 
 (g) 7 Wm. IV & 1 Vic, c. 26, ss. 9, 
 14, 21, 34-5; 15 & 16 Vic, c 24. 
 
 (A)24&25Vic,cll4(6thAng.-61). 
 (i) 7 Win. IV & 1 Vic, c. 26, s. 10; 
 Hubbard v. Lees, L. R. 1 Ex. 255. 
 (j) Said Jones v. Loch, L. R. 1 Ch. 25. 
 
 What formali- 
 ties necessary 
 to an ordinary 
 Contract or 
 Disposition. 
 
 As to every 
 
 kind of 
 
 Property. 
 
 On Disposition, 
 
 &c 
 
 for Valuable 
 
 Consideration. 
 
 (a) Kekewich v. Manning, I D. G. M. 
 G. 187. 
 
 (6) Hotroyd v. Marshall, 10 H. L. C 
 19 i and the other authorities referred 
 to above pp. 76-7. 
 
 (c) Dyke's Estate, L. R. 7 Eq 337; 
 Sugd. Pow. (8th Ed.), 552. 
 
 (d) See Sugd. Pow. (8th Ed.), 536-7; 
 and as to her contracts generally, see 
 Sicholt v. Jones, L. R. 3 Eq. 696. 
 
 On Gratuitous 
 
 Disposition. 
 
 Testamentarily 
 
 Non-testamen- 
 tarily.
 
 124 DELIBERATION IN PERFORMING THE MENTAL ACT, &C. 
 
 By Declaration 
 of Trust. 
 
 By Direction to 
 and Attorn- 
 ment from 
 existing 
 Trustee. 
 
 By transfer of 
 legal estate or 
 direction to 
 agent to 
 transfer it. 
 
 the transaction (a), provided the disposition declare that 
 the donor is to hold the property for the intended bene- 
 ficiary so as to impose a fiduciary relationship on the 
 former (b) ; or if he direct one who already holds it for him 
 to hold it henceforward for the intended beneficiary (c), and 
 the trustee so holding it assents (i). But this does not seem 
 to extend to a disposition made under a power which 
 prescribes other formalities. And a mere disposition will 
 not be deemed equivalent to a declaration of trust (d), unless 
 perhaps when the disponor is the husband of the disponee, 
 in which case some laxity seems to be allowed on account of 
 the theoretical impossibility of changing the possession (e). 
 The beneficial interest in every kind of property can be 
 transferred by transferring the legal estate, or by directing 
 another to transfer it as one's agent and sending him the 
 necessary authority, though he neglect to act on that 
 authority (/). 
 
 (i) It will be seen from the statements in the text that when the donor is to 
 hold for the donee, or when a disposition is made by deed or by formalities suffi- 
 cient to transfer the legal estate or is accompanied by delivery of the subject of 
 it, no assent by am r other person is necessary; but when none of these circum- 
 stances is present I apprehend that for the purpose of securing deliberation, and 
 by analogy to the rule as to the disposition of the legal estate in chattels in the 
 hands of a bailee, the attornment or assent of the trustee (if any) in whom the 
 legal estate may be outstanding is necessary; and in several cases (<;) this has 
 been enumerated as being so. But in a later case (A) the contrary has been 
 held. 
 
 («) 29 Car. II, c. 3, ss. 7, 8. 
 
 (6) Richards v. DAbridge, L. R. 18 
 Eq. 11; Heartley v. Nicholson, L. R. 19 
 Eq. 233; Warriner v. Rogers, L. R. 16 
 Eq. 340. 
 
 (c) Bentley v. Mackay, 15 Bea. 12; 
 Tierney v. Wood, 19 Bea. 330; Lambe v. 
 Orion', 1 D. & Sm. 125. 
 
 (d) Milroy v. Lord, 4 D. G. F. J. 
 274; Richards v. Delbridge, L. R. 18 Eq. 
 11; Heartley v. Nicholson, L. R. 19 Eq. 
 233 ; Warriner v. Rogers, L. R. 1 6 Eq. 
 340; over-ruling Morgan v. Malleson, 
 L. R. 10 Eq. 475; and Richardson v. 
 Richardson, L. R. 3 Eq. 686. 
 
 (e) Baddeley v. Baddeley, L. R. 9 Ch. 
 113; Grant v. Grant, 34 Bea. 623-5; 
 But Moore v. Moore, L. R. 18 Eq. 474 
 is somewhat contrary. 
 
 (/) Exp. Pyere Dubnst, 18 Vez. 150; 
 Kiddill v. Farnell, 26 L. J. Ch. 818; 
 Roberts v. Roberts, 15 L. T. N. S. 260, 
 
 as qualified by Milroy v. Lord, 4 D. G. 
 F. J. 274; but this only holds when 
 the authority is such that it is in the 
 party's power to act upon it without 
 any further act of the disponor, Lam- 
 bert v. Overton, 1 1 L. T. N. S. 503. 
 
 (g) Meek v. Kettlewell, below 1 Hare 
 471; Bentley v. Mackay, 15 Bea. 20; 
 Lambe v. Orton, 1 D. & S. 128; Bridge 
 v. Bridge, 16 Bea. 322, (where however 
 it was suggested that notice to the 
 trustee might be equivalent to assent 
 by him); and the decisions in Patterson 
 Murphy, 1 1 Hare 9 1 , and Taite v. Lett- 
 head, Kay 658, that communication to 
 the disponee is not necessary, seems to 
 imply that assent by the trustee is, for 
 it could scarcely be doubted that the 
 absence of both must invalidate the 
 disposition. 
 
 (A) Tierney v. Wood, 19 Bea. 330.
 
 DELIBERATION IN PERFORMING THE MENTAL ACT, &C. 125 
 
 Every beneficial interest, except perhaps a hope of By Deed, 
 succession (a), can in every (b) kind of property be gratui- 
 tously transferred non-testamentarily by deed (c), even 
 though the disponor retain the deed in his own possession 
 and destroy it without communicating it to any person (d), 
 and though the legal estate be in trustees who never 
 become aware of the disposition (d) ; or by such formalities By formalities 
 as would be sufficient to transfer the legal estate (e); or Legal^s'tate 
 it seems (at least as regards choses in action) by delivery of Bv delivery. 
 that which gives the title (i) to it ; or perhaps by change 
 of possession (n), though unaccompanied by any formalities 
 save those prescribed for evidencing the transaction (/); but 
 it is necessary that the disposition (in order to be valid by 
 this rule) should be made per verba de prcesenti (g), and that 
 the legal estate should be in another either exclusively of 
 the disponor (h) or jointly with him (i), or else that the 
 property should be such that the legal estate in it cannot 
 be legally transferred (j) ; and when the property is such 
 
 (i) Delivery of a Bond, with an assignment of it and of the money due under 
 it endorsed and signed, but not sealed, has been held insufficient to transfer 
 the beneficial interest in the money (A:). But this decision is not recon- 
 cilable on principle with the decision at law that payment to the assignor made 
 after notice of the assignment may not be pleaded (/), nor with the later 
 decisions in equity (m). 
 
 (n) Alteration of the possession would probably be insufficient in the case of 
 property which (like a tenement) is held by documentary evidence, because to 
 admit it as sufficient would cast further doubt on titles; but would in the case of 
 corporeal personal chattels be in most cases sufficient to transfer the legal 
 estate, and for that reason to transfer the beneficial estate also. In the case 
 of chases in action the question could scarcely arise except when the trustee 
 or holder of the fund assents to and acts on the transfer, and in that case it 
 is sufficient according to the dicta already referred to (n). 
 
 (a) Meek v. Kelllewell, 1 Ph. 342. Said Kekewich v. Manning, 1 D. G. M. 
 
 (6) Kekewich v. Manning, 1 D. M. G. G. 187. 
 186-7. ('0 Ellison v. Ellison, 6 Vez. 656. 
 
 (c)Kekewichv. Manning, 1 D. M.G. 176 
 (d) Ways Trusts, 2 D. G. J. S. 365. 
 
 M. 
 
 (e) This is at least so on principle, 
 both because equity follows the law and 
 because the contrary rule might fre- 
 quently invalidate a disposition by one 
 supposed to have the legal estate, on 
 the mere ground that that estate was 
 afterwards found to be outstanding, as 
 observed in Gilbert v. Overton, 2 H. & 
 M. 117; Sugd. V. P. (14th Ed.), 719. 
 
 (f) 29 Car. II, c. 3. 
 
 (g) Jefferys v. Jefferys, Cr. & Ph. 1 38 ; 
 
 (i) Kekewich v. Manning, 1 D. G. 
 G. 189. 
 
 (j) Fortescue v. Burnett, 3 M. & K. 
 36 ; Blakeney v. Brady, 2 Dr. & Wal. 311. 
 
 (k) Edwards v. Jones, 1 M. & Cr. 226. 
 
 (7) Leigh v. Leigh, 1 B. & P. 447. 
 
 (/«) See the below cases, and espe- 
 cially the observations in Blakeney v. 
 Brady, 2 D. & Wal. 311. 
 
 («) See Meek v. Kettlewell, 1 Hare 
 471; Bentley v. Mackay, 15 Bea. 20; 
 Lambe v. Orton, 1 Dr. & S. 128, &c; 
 ante p. 124, n. (i).
 
 126 DELIBERATION IN PERFORMING THE MENTAL ACT, &C. 
 
 As to certain 
 chattels. 
 By Donatio 
 Mortis Causa. 
 
 What formali- 
 ties necessary 
 to a Disposition 
 for Barring 
 Entails. 
 
 that the legal estate can be transferred, there is ground for 
 contending that a right on the part of the disponor to 
 require the immediate transfer of the legal estate will 
 constitute an exception (a) ; and when the property is such 
 that the legal estate cannot be transferred, but the disponor 
 is competent to deliver a document by which it was created 
 (as a bond when a bond debt is the subject of disposition 
 (b)) it may be that his doing so will be necessary (c) ; and 
 when the subject of disposition is a chose in action secured 
 by a legal estate (as a debt secured by a legal mortgage) 
 the transfer of that legal estate may be necessary (d). 
 Dispositions under powers by which specified formalities 
 are prescribed may be made either by the formalities so 
 prescribed, or by deed with two witnesses (e). 
 
 The beneficial interest in a chose in action evidenced 
 by a written document as (for example) a Mortgage (/), 
 Bond (§■), Policy of Insurance (h), Bill of Exchange (z), or 
 the like (_/), or a Cheque if cashed in time (k), can be testa- 
 mentarily transferred by delivery (/) of the document made 
 when the disponor believes himself to be dying (/); but 
 funds which pass by transfer on a register cannot be thus 
 dealt with (m). 
 
 To ensure deliberation in the barring of Entails, and of 
 estates lying behind estates tail, special consents (») and 
 
 (a) See the comments in 1 D. G. M. 
 G. 193, on Antrobus v. Smith, 12 Vez. 
 39, and on Coleman v. Sarel; Perhaps 
 Bridge v. Bridge. 16 Bea. 315 may be 
 referred to this ground. But in Glegg 
 v. Rees, L. R. 7 Ch. 71, an assignee of 
 property on trust for creditors was held 
 entitled to call for the legal estate as 
 fully as his disponor might have done. 
 In Beech v. Keep, 18 Bea. 285, the dis- 
 ponor himself had power to transfer the 
 legal estate, not merely to call for it. 
 
 (6) See below in the chapters 
 which treat of the disposition of the 
 legal estate. 
 
 (r) See the dicta in Blalceley v. Brady, 
 2 Dr. & Wal. 311. 
 
 (d) Ward v. Audley, 8 Bea. 201. 
 
 (e) 22 & 23 Vic, c. 35, s. 12. 
 
 (/) Duffieldv. Hicks. 1 Bli. N. S. 497. 
 
 (g) Said Duffield v. Hicks. 
 
 (A) Amiss v. Witt. 33 Bea. 619. 
 
 (i) Rankin v- Weguelin, 27 Bea. 309. 
 
 (j) Vealv. Veal, 27 Bea. 303; Bouts 
 v. Ellis. 4 D. G. M. G. 249. 
 
 (Jfc) Tatev. Hibhert, 2 V. J. 1 1 1 ; Rolls 
 v. Pearce. L. R. 5 C. D. 730: Beak v. 
 Beak, L. R. 13 Kq. 489. 
 
 (/) Tale v. Hibbert, 2 V. S. Ill; 
 Cosnahan v. Grice. 15 Moo. P. C. 215. 
 
 (m) Ward v. Turner, 2 V. S. 431; 
 Moore v. Moore, L. R. 18 Eq. 483. 
 
 O) 3 & 4 Wm. IV, c. 74, ss 22, 37, 
 44, 47, 48, 58.
 
 127 DELIBERATION IN PERFORMING THE MENTAL ACT, &C. 
 
 formalities (a) have been prescribed as necessary to the 
 passing of either the legal or the beneficial estate; but as 
 these have been already (b) alluded to, and are very clearly 
 set forth in the statute, I do not think anything would be 
 gained by treating further of them here. 
 
 The beneficial interest may I conceive be disclaimed 
 orally or by implication (c). 
 
 (a) 3&4 Wm. IV, c. 74, ss. 40, 43, Priorities, where the formalities neces- 
 45,46,49,54,59,66,69,71,74. sary for the disclaimer of the legal 
 
 (b) Ante pp. 50-2. estate are treated of. 
 
 (c) See below in the Chapters on 
 
 What formali- 
 ties necessary 
 to a Disclaimer.
 
 ( 128 ) 
 
 CHAPTER XV. 
 
 FREEDOM OF JUDGMENT AS AFFECTING THE VALIDITY OF 
 CONTRACTS, &C. 
 
 Generally. 
 
 Unusually- 
 framed Deed of 
 Gift invalid in 
 some cases. 
 
 Omission of 
 power of 
 Revocation. 
 
 Unconscion- 
 able bargain 
 respecting a 
 Reversion, &c, 
 is invalid. 
 
 Freedom of Judgment on the part of the promisor or 
 disponer is necessary to the validity of a promise or dispo- 
 sition, and no doubt it is equally necessary to that of a 
 representation ; but in the case of a representation it can 
 scarcely be absent, because a representation of intention 
 is only binding when accompanied by Inducement which 
 implies freedom of judgment, and a representation of fact is 
 generally a wilful or careless falsehood which also implies it. 
 
 A gratuitous disposition, containing any unusual or 
 unreasonable or omitting any proper clause is, as regards 
 the beneficial (a) interest, voidable (b) by the disponor, 
 unless his attention was called to this clause before he 
 signed the deed; and if the circumstances be such that 
 the disposition would be improvident if it were irrevocable 
 (c), the omission of a power to revoke it will be deemed an 
 omission of a proper clause; but of course when the dispo- 
 sition is a settlement by a prodigal on his own family, the 
 omission of such a power will not have this effect (d). 
 
 Poverty on the part of one who is disposing (or promising 
 to dispose) of a reversionary interest by way of sale for (e) 
 or as security for (/) a present advance, or who is giving 
 for a present consideration a promise to be fulfilled in 
 
 (a) See the cases cited in the fol- 
 lowing notes, and Huguenin v. Baseley, 
 2 W. T. L. C. (4th Ed.), 575. 
 
 (6) Wollaston v. Tribe, L. R. 9 Eq. 
 50 1. 25. 
 
 (c) Everitl v. Everitt. L. R. 10 Eq. 
 405 ; Couttsy. Ackworth, L. R.8 Eq. 558 ; 
 
 Wollaston v. Tribe, L. R. 9 Eq. 44 ; said 
 Hall v. Hall, L. R. 8 Ch. 440. 
 
 (d) Phillips v. Mulling*, L. R. 7 Ch. 
 244. 
 
 (e) Conceded O'Rorke v. Bolingbroke, 
 L. R. 2 Ap. 836. 
 
 (/) Benyon v. Cook, L. R. 10 Ch. 389.
 
 FREEDOM OF JUDGMENT, &C. 
 
 129 
 
 future (a), prevents him from exercising an independent 
 judgment, and therefore invalidates (b) the transaction, 
 subject to a lien on the part of the other party for the (How far) 
 consideration (b) rendered by him or its value, and for 
 simple (c) interest at 5 (d) per cent, not the ordinary court 
 rate of 4, in consequence of which when the transaction is 
 a mortgage the invalidity is confined to any harsh provi- 
 sions in it (e) (1). 
 
 Poverty will invalidate such a transaction as I have 
 described, even though the contracting party be of mature 
 age (/) and in the possession of all his faculties (/), and 
 require the money for perfectly proper purposes (/), and 
 though the transaction commenced in answer to adver- 
 tisements from him (g), and though he had made offers to 
 many persons (g), " for that only shews the distress of the 
 borrower" ( g) ; but not if the transaction was a contri- 
 vance between the necessitous person and his father, to 
 enable him to obtain the advance without troubling the 
 latter who might have assisted him (li). 
 
 The mere harshness of the terms on which the contract 
 
 Even in 
 extreme 
 cases. 
 
 (1) Prodigals as well as necessitous persons are relieved from contracts and 
 dispositions of the nature adverted to in the test, but from the nature of the 
 case lack of independence of judgment cannot be in their case the reason of the 
 rule, because such dealings on the part of Prodigals are in general consistent 
 with their own interest. The Judges, probably from unwillingness to use 
 harsh terms, have generally referred to the rule as depending, even in these 
 cases, on lack of judgment; but I have in the text referred it to Public Policy, 
 and have pointed out a few distinctions in effect between the two classes of cases. 
 The rule has generally been laid down broadly that any dealing with a rever- 
 sionary interest is invalid as regards any hard terms imposed by it; but I have 
 restricted it to cases of poverty and cases of prodigality, and I think correctly, 
 for it cannot be supposed that a mortgage of a reversionary interest made by a 
 man in easy circumstances for good commercial reasons and without any inten- 
 tion to make an improper use of the money thus raised would be invalidated by 
 the circumstance that it contained stipulations giving an advantage of the 
 lender. 
 
 Unconscion- 
 ableness 
 presumed 
 from Harshness 
 and from 
 Reversionary 
 Character of 
 subject. 
 
 (a) This follows from the cases on 
 postobits referred to below, where I dis- 
 cuss the rule as applicable to the case 
 of Prodigals. 
 
 (6) Slater's Trusts, L. R. 11 C. D. 
 227; Benyon v. Cook, and the other 
 cases cited below. 
 
 (c) Gowland v. De Faria, 17 Vcz. 26; 
 
 Slater's Trusts. 
 
 (d) Slater s Trusts; Benyon v. Cook; 
 and the other cases cited below. 
 
 (e) See all the cases cited. 
 
 (/) Benyon v. Cook, L. R. 10Ch.389. 
 (</) Gwynne v. Heaton, 1 B. C. C. 1; 
 Bowers v. Heaps, 3 V. & B. 117. 
 
 (h) King y. Hamlet, 2 M. & Ke. 462. 
 
 17
 
 130 
 
 FREEDOM OF JUDGMENT, &C. 
 
 From Rever- 
 sionary 
 character of 
 estate. 
 
 What stipu- 
 lations deemed 
 harsh. 
 
 or disposition is made is considered as raising a presump- 
 tion that either poverty or prodigality exists (a), at least 
 if the interest dealt with is reversionary (b)(i), even though 
 the vendor be a professional man (c) of mature age (c). 
 And it seems that on a sale the mere fact that the subject 
 is reversionary will raise it (d). However, if the purchaser 
 even of a Reversion can rebut the presumption, he need 
 not further prove the price to be adequate (e). 
 
 What stipulations shall be deemed harsh is a point 
 difficult to define, but I apprehend that those which are 
 less favourable to the promisor or disponor than their 
 consideration is to the promisee, &c. will be so deemed, 
 and that those which would but for his necessitous circum- 
 stances be less favourable to the promisor &c. than their 
 consideration is to the promisee will be so deemed unless 
 the promisee acted in the matter under the advice of 
 competent persons. Certainly stipulations of the latter 
 class will not be deemed harsh (/) when assented to under 
 such advice: and the father of the promisor &c. will be con- 
 sidered a competent adviser (/) unless some circumstance 
 disqualifies him (/). The circumstance that the value of 
 the subject depends on the father's health (as when it is 
 a reversion expectant on his decease (/) ) disqualifies him 
 if (but only if) the advice of others be obtainable by the 
 promisor, &c. (/). In the case in which these points were 
 decided there was no question of prodigality. 
 
 Whether 
 
 doctrine 
 
 confined to 
 
 strictly 
 
 Reversionary 
 
 Interest. 
 
 (i) The fact that the subject of disposition was an estate in possession was 
 held in one case (<?) to prevent the application of the rule, although the estate 
 was subject to terminable annuities of an amount great in proportion to the 
 annual income; but in this case the disponor was not a necessitous person but 
 a prodigal. The case cannot, I think, be relied on, except as showing that the 
 Court considers the fact that the estate is reversionary as strengthening the 
 evidence of unconscionableness. 
 
 (a) Chesterfield v. Jan&sen, 1 W. T. L. 
 C. (4th Ed.), 587, and the cases cited 
 below. 
 
 (b) Benyonv. Cook, L.R. 10 Ch.391n 
 (Col. 2), where also the kinds of rever- 
 sionary interests to which the rule 
 applies are defined. 
 
 (c) See Wiseman v. Beake, 2 Vera. 121. 
 
 (d) See O'Rorke v. Bolingbroke, L. R. 
 2 Ap. 822-3. 
 
 (e) 31 Vic, c. 4. 
 
 (f) O'liorke v. Bolingbroke, L. R. 2 
 Ap. 823. 
 
 (g) Webster v. Cook, L. R. 2 Ch. 542.
 
 FREEDOM OF JUDGMENT, &C. 131 
 
 The question whether terms are harsh seems partly to 
 depend on whether the interest dealt with is liable to be 
 lost or subject to a contingency. Thus, when the subject 
 of disposition was a sum payable at a future time and 
 secured by bond, the fact that the obligor was solvent (a) — 
 and when it was an estate in reversion the fact that it was 
 vested (b)— was relied on. It seems therefore fairly arguable 
 that (while some clauses would be deemed harsh in any 
 case) many stipulations which would be deemed harsh if 
 contained in a disposition of a vested reversionary interest 
 will not be so deemed if contained in a disposition of a contin- 
 gent one. (I refer to the case of a necessitous person, for in 
 that of a prodigal the fact that the subject of disposition is 
 contingent or is a mere hope of succession only makes the 
 matter worse (c)). 
 
 A promise in a mortgage to repay a greater sum than 
 that actually advanced (though it be not greater than that 
 acknowledged to be advanced) will be a harsh stipulation 
 within this rule (d); for an acknowledgment that a specified 
 amount was advanced will not be binding on the mortgagor 
 (d), but on the contrary will invalidate an agreement to 
 pay more than ^"5 per cent, interest (d) ; and, in a mortgage, 
 clauses conferring on the mortgagee powers of an unusual 
 character, such as would if put in force ruin the mortgagor 
 will also be deemed harsh stipulations. But inadequacy 
 of price (e) and exorbitancy of interest (/) will not alone be 
 deemed harsh stipulations. 
 
 Confirmation and acquiescence will preclude the party Confirmation, 
 
 &c. of an 
 («) Benyon v. Cook, L. R. 10 Ch. Janssen, I \V. & T. L. C. (4th Ed.), Unconscion- 
 39 In (Col. 2), where also the kinds of 588-9. aDle Dar S ain - 
 
 reversionary interests to which the rule (d) Slater's Trusts, L. R. 11 C. D. 
 applies are defined. 227, and many other cases. 
 
 (b) Slater's Trusts, L. R. 1 1 C. D. 239. (e) 31 Vic, c. 4. 
 
 (c) See below and E. Chesterfield v. (/) 17 & 18 Vic, c. 90.
 
 132 
 
 FREEDOM OF JUDGMENT, &C. 
 
 Undue 
 Influence 
 invalidates a 
 transaction. 
 
 from obtaining relief (a) if they occur after the distress has 
 ceased, unless perhaps the interest dealt with be still 
 reversionary (b). And when the consideration consists not 
 of money but of specific articles, the fact that the necessi- 
 tous person, after the pressure has ceased, renders himself 
 unable to restore them in specie, disentitles him to relief (c). 
 Any Influence by which a person standing towards 
 another in a position of superiority or vantage induces 
 that other gratuitously to make a disposition (d) or under- 
 take an obligation (e) renders such disposition &c. voidable 
 as to the beneficial interest, even though it be made to or 
 undertaken towards a third person who renders a valuable 
 consideration for it to the party who induces it (as when a 
 father on borrowing money induces his son or daughter to 
 guarantee or secure its re-payment (e)); but I apprehend 
 this would not hold if the third person were ignorant of 
 the circumstances from which the law presumes undue 
 influence, as, if he were ignorant of the relationship between 
 the parties. Even the influence of love is undue within 
 this rule (/), and much more that of spiritual or temporal 
 fear — and a father (g), a husband (g), a pastor (h), a physi- 
 cian (?'), a guardian (i), and a solicitor (/), are considered as 
 standing in positions of superiority; — and a fiduciary, of 
 whatever kind, is considered as occupying a position of 
 vantage with regard to the trust property (k), and with 
 regard to gifts made to him in respect of his administration 
 of it (/). 
 
 (a) Chesterfield v. Janssen, 1 W. T. 
 L. C. (4th Ed.), 541. 
 
 (b) Wiseman v. Bedke, 2 Vern. 121; 
 Gowlandv. Be Faria, 17 Vez. 20. 
 
 (c) King v. Hamlet, 2 M. & Ke. 474. 
 Id) Turner v. Coffins, L. R. 7 Ch.329. 
 
 (e) Kempson v. Ashbee, L. R. 10 Ch. 
 15. 
 
 (f) Turner v. Collins. 
 
 (j) Kempson v. Ashbee; said Pat fit t v. 
 Lawless, L. R. 2 P. & M. 468. 
 
 (A) Parfitt v. Lawless, L. R. 2 P. & M. 
 462 ; and see Nottidgev. Prince, 2 Giff. 216. 
 
 (0 Said Parfitt y. Lawless, Li R. 2 P. 
 & M. 468. 
 
 0) Said Parfitt v. Lawless; Watson 
 v. llodwell, L. R. 11 C. D. 150, (a case 
 of re-opening a settled account). Prees 
 v. Cook, L. R. 6 Ch. 645. 
 
 (fc) Barrett v. Hartley, L. R. 2 Eq. 
 789; Prees v. Cook, L. R. 6 Ch. 645. 
 
 (/) Vaughton v. Noble, 30 Bea. 39.
 
 FREEDOM OF JUDGMENT, &C. 
 
 133 
 
 But this doctrine does not extend to the exercise of 
 parental influence for the purpose of obtaining the re-set- 
 tlement of family estates under which the son himself 
 takes a fair share (a). Nor does the doctrine apply to 
 testamentary dispositions. As to them, influence of a 
 lawful nature such as Love, Persuasion (though through 
 religious sentiment (£)), &c, may be used (c), although such 
 influence as amounts to Coercion, or overbears (d) the 
 freewill of the testator, will invalidate even a will, and so 
 it seems will Importunity so great as to show that the 
 testamentary disposition was made only to escape from it 
 (e) ; and it may be gathered from the language of the Court 
 (/) that every disposition or obligation made or undertaken 
 without the knowledge of the party who occupies the 
 position of superiority &c. falls under the same rule as a 
 testamentary one. 
 
 Proof of the existence of the position of superiority or 
 vantage raises a presumption as against the party filling it 
 that undue influence was exercised (g), but he may by proof 
 rebut this presumption (h) ; and proof that the party bene- 
 fitted was ignorant of the transaction shifts the presumption 
 (i); and proof that independent advice was obtained by the 
 donor is generally sufficient to rebut it (/). In case of a 
 testamentary disposition, the undue influence necessary to 
 invalidate it is not presumed (k). 
 
 Again, Inducing a person who is in a state unfit for the 
 transaction of business (as from advanced age, infirmity, 
 and lack of education or of advice (/),) to sell at an under- 
 
 (a) Said Turner v. Collins, L. R. 7 
 Ch. 329. 
 
 (b) ParfM v. Laivless, L. R. 2 P. & 
 M. 474. 
 
 (c) S. C. L. R. 2 P. & M. 472. 
 
 (<f) Hall v. Hall, L. R. 1 P. & M. 481. 
 
 (e) On all these points Parfitt v. 
 Lawless, L. R. 2 P. M. 472, which case 
 seems to overrule Ashwell v. Lomi, id. 
 477. 
 
 (/) In Parfitt v. Lawless. 
 
 (g) Turner v. Collins, L. R. 7 Ch. 339 ; 
 Lyon v. Home, L. R. 6 Eq. 655; said 
 
 Parfitt v. Lawless, L. R. 2 P. & M. 462. 
 
 (h) Turner v. Collins, L. R. 7 Ch. 339 ; 
 Archer v. Hudson, 7 Bea. 551. 
 
 (j) Implied in the dicta in Parfitt v. 
 Lawless. 
 
 (j) See Turner v. Collins, L. R. 7 Ch. 
 329; Kempson v. Ashbee, L. R. 10 Ch. 
 15; but it was not sufficient to rebut it 
 in Moxon v. Payne, L. R. 8 Ch. 881. 
 
 (k) Parfitt v. Laivless, L. R. 2 P. & 
 M. 468; Boyse v. Rossborough, 6 H. L. 
 C. 49. 
 
 (0 Clarke v. Malpas, L. J. 31 Ch. 696. 
 
 Except (in 
 some cases} a 
 Family 
 arrangement. 
 
 And except a 
 Testamentary 
 Disposition. 
 
 And except (it 
 seems) a dis- 
 position to one 
 ignorant of 
 the facts im- 
 plying 
 influence. 
 
 Presumptions 
 as to Undue 
 Influence. 
 
 Other Unfair 
 Dealing.
 
 134 
 
 FREEDOM OF JUDGMENT, &C. 
 
 Fear of the 
 consequences 
 of Refusal. 
 
 Example — fear 
 that a son will 
 be prosecuted. 
 
 Duress. 
 
 value any estate, whether in possession or reversion, 
 invalidates the sale as regards the beneficial interest. 
 
 Fear of the consequences of refusing to make a contract 
 or disposition is a motive which, when excited by the 
 opposite party, will invalidate the contract or disposition (a), 
 even though that party may not occupy any position of 
 superiority, and though the promise be merely to compen- 
 sate him for or indemnify him against some injury inflicted 
 by a third person {a), and even though that third person 
 be a son of the party thus influenced (a), and even though 
 no one expressly puts forward this fear as a motive (a), 
 but the party who is to be indemnified looks upon the 
 matter as simply a matter of business, and is careful not to 
 use any words which can be taken hold of as showing that 
 he is aware of the motive in question (a), for the Court will 
 "read between the lines," as it is called, and will infer 
 from the circumstances what all parties must have known 
 to be the really influencing motive (a). 
 
 Fear that one's son will be prosecuted for a forgery of 
 which he is probably guilty is a fear creating an undue 
 motive within this rule (a), and so is fear that he will be 
 prosecuted for a crime of lesser (b) magnitude, but not fear 
 that he will be civilly sued (c) unless the party uttering the 
 threat occupy a fiduciary position towards the other (c). 
 
 Duress, (that is undue influence arising from physical 
 fear or constraint), has a greater effect than the other forms 
 of undue influence, for its invalidating effect extends even 
 to the legal estate (i). 
 
 (1) As to what constitutes Duress, the decisions are so contradictory that 
 I must refer the reader to Viner Ah. "Duress"; Co. 2 Inst. 483; 5 Co. 119a; 
 Sh. Touchstone, 61; Br. Ab. "Duress"; and Slccate v. Beak, 11 A. & E. 983, 
 which decides that the seizure of goods is not sufficient. Questions of duress 
 in the present settled state of society scarcely ever ai'ise, and it is very desir- 
 able that a disposition should not be avoided as to the legal estate for any 
 cause not apparent on the instrument. 
 
 (a) Williams v. Bayley, L. R. 1 H. L. (h) Cases cited in Williams v. Bayley. 
 200; for a statement of the principle (c) Said Williams v. Bayley, L. R. 1 
 seep. 216. H. L. 209.
 
 FREEDOM OF JUDGMENT, &C. 135 
 
 To prevent the exercise of undue influence in case of Mortmain 
 dispositions for Public Charities, the Statute Law renders ing Gifts to 
 all such void even as to the legal estate, so far as they Chanties - 
 affect any hereditament (a) (except a copyhold (b)), or any 
 money or chattel which (not being stock in the public funds 
 (c)) is given to be expended in the purchase of an interest 
 in an hereditament (r), unless such disposition be made by 
 a deed (d) attested by two witnesses (e), and (within six 
 months of its execution (e), or else before the 17th May, 
 1866 (/)) enrolled in Chancery, and even then unless the 
 disponor live a year after (g). And it invalidates all 
 dispositions of stock in the funds to be expended in the 
 purchase of an interest in an hereditament for the benefit 
 of a Public Charity unless it be made by transfer (g), and 
 even then unless the disponor live six months after (g). 
 And it avoids dispositions of all the above classes even 
 as to copyholds, unless they be made to take effect 
 in possession for the Charitable purpose intended, and 
 even then if any power of revocation or any benefit be 
 reserved for the grantor, or for anyone deriving under him 
 (g), except benefits falling under the provisions of the 
 Amending Acts (h). But the condition that the disponor Exceptional 
 must survive the disposition does not apply when a full 
 and valuable consideration is actually paid for the dispo- 
 sition at or before the conveyance or transfer (i). And 
 enrolment is not required when the conveyance is for 
 valuable consideration and otherwise conformable to the 
 act, and was executed before 25th July, 1828 (j). Nor is 
 the act at all applicable when the subject of gift is money 
 
 (a) 9 Geo. II, c. .36, ss. 1,3. c. 57; 35 & 36 Vic, c. 24, s. 13. And 
 
 (6) 24 Vic, c 9, s. 1. as to Roman Catholic Charities see 
 
 (c) 9 Geo. II, c. 36, ss. 1,3. 23 & 24 Vic, c. 134, s. 3. 
 
 (d) 9 Geo. II, 0. 36, ss. 1, 3, qualified (g) 9 Geo. II, c 36, s. 1, qualified as 
 by 24 Vic, c. 9, s. 1. to Leases by 26 & 27 Vic, c 106. 
 
 (c) 9 Geo. II, 0. 36, ss. 1, 3. (A) 24 Vic, c 10, ss. 1, 3, 5; 9 Geo. 
 
 (f) 24 Vic, c. 9, s. 3; 25 & 26 Vic, IV, c. 85; 25 & 26 Vic., c. 17, ss. 2, 5; 
 
 c. 17, ss. 1, 3, 4; 27 & 28 Vic, c 13, ss. 27 & 28 Vic, c. 13, s. 4. 
 
 1, 2; further qualified if deed lost, by (i) 9 Geo. II, c 36, s 2. 
 
 26 & 28 Vic, c. 13, s. 3; 29 & 30 Vic, (j) 9 Geo. IV, c. 85, s. 1.
 
 13G 
 
 FREEDOM OF JUDGMENT, &C. 
 
 Effect of the 
 Acts on 
 Testamentary 
 Dispositions. 
 
 Exemptions 
 from these 
 Acts. 
 
 Disabilities of 
 
 Married 
 
 Women. 
 
 Their Appoint- 
 ments under 
 Powers. 
 
 &c. to be expended only on an hereditament which has 
 already been conveyed by a duly enrolled instrument to a 
 Charity, and which still belongs to such Charity (a). And 
 when the hereditaments are conveyed by one deed and the 
 trusts of them declared by another, the enrolment of the 
 latter is sufficient without that of the former (b). The 
 effect of the above enactments is of course to invalidate 
 testamentary dispositions to Public Charitable purposes 
 except so far as their subject is pure personality, and 
 except when the hereditament is already (under a duly 
 enrolled instrument) the property of a Charity. The enact- 
 ments are qualified as to their application to Roman 
 Catholic Charities (c), and they except gifts made before 
 15th August, 1832 for Roman Catholic Charities (d), and 
 gifts for the Universities and Colleges at Oxford, Cam- 
 bridge, Eton, Winchester, and Westminster (e), and for 
 Greenwich Hospital (/), and certain gifts for Queen Anne's 
 Bounty (g), and for purposes of Religion (h), Education (i), 
 Literature (j), Art (J), Science (7), Public Recreation (k), 
 and the like, and for Work-houses and Asylums (I). 
 
 To preserve Married Women from undue influence on 
 the part of their husbands, the law in many cases invali- 
 dates dispositions made by them, and in other instances 
 requires such dispositions to be accompanied by appro- 
 priate formalities. 
 
 By any instrument dealing with property a married 
 
 («) Philpotts v. St. Georges Hospital, 
 6 II. L. C. 338 ; Pratt v. Harvey, L. R. 
 12 Eq. 544, qualified by re Cox, Cox v. 
 Davie, L. R. 7 C. D. 204. 
 
 (6) 24 Vic., c. 9, 3. 2,4. 
 
 (c) 23 & 24 Vic, c. 134, ss. 1, 5. 
 
 (rf) 23 & 24 Vic, c 134, s. 2. 
 
 (e) 9 Geo. II, 0. 36, ss. 4, 5; 24 Vic, 
 c. 9, s. 6. 
 
 (f) 28 Sc 29 Vic, c. 89, s. 43. 
 (y) 43 Geo. Ill, c. 107. 
 
 (A) 30 & 31 Vic, c 133, ss. 4, 5; 31 
 & 32 Vic, c 44; 3G & 37 Vic, c 50. 
 
 The numerous Statutes contained in 
 the Government Index under " Mort- 
 main" (p. 659) may also be referred to. 
 
 (i) 31 &32 Vic, c. 44; 34 & 35 Vic, 
 c 13. 
 
 0') 31 & 32 Vic, c. 44; 38 & 39 
 Vic, c 68. 
 
 (*) 34 & 35 Vic, c 13; 22 Vic, c. 
 27 ; and as to Metropolitan Commons, 
 29 & 30 Vic, c. 122, 32 & 33, Vic, 
 c. 107. 
 
 (/) 7 & 8 Vic, c 101, s. 73.
 
 FREEDOM OF JUDGMENT, &C. 187 
 
 woman may be expressly authorized to dispose of it, and 
 
 any disposition made by her in conformity as regards 
 
 formalities with the rules already (a) stated, and as regards 
 
 other matters with such power will be as valid (b), as if she 
 
 were unmarried, whether the property be real or personal, 
 
 and whether the disposition be testamentary or not. But 
 
 a power to make a disposition after the husband's death 
 
 does not validate a disposition made before it, although 
 
 adhered to after, unless it be re-executed after the death 
 
 (c). Again, when property is disposed of to a woman the Their disposi- 
 
 disponor may direct that it shall be for her separate use tlons of Se P a ~ 
 _ J * rate property. 
 
 (d), in which case, as also in the cases in which the law directs 
 
 (e) that she shall hold property to her separate use (or as if 
 
 she were unmarried), her dispositions (/)(i) and contracts (g^ Their contracts 
 
 respecting it will be as valid as if she were unmarried; res P?ctingoron 
 
 r ° credit of 
 
 and it will besides be liable to be sold for the satisfaction separate 
 
 of damages for breach of her contracts (Ji) made for val- proper y " 
 uable consideration rendered or promised on the credit of 
 such property («'); (and in general her contracts will be pre- 
 sumed to have been thus entered into), but not for that of 
 damages for wrongs (J) committed irrespectively of the 
 property. So the exercise of a power authorising a married Their contracts 
 woman to dispose of the property to anyone she pleases as affect i D g 
 
 renders it at least in some cases liable to her debts (&), appointed 
 
 under a Power, 
 (i) That is as regards the beneficial estate. And possibly, since 7th August 
 1874, as regards the legal (/). 
 
 (a) Ante p. 77 (c), 123 (,c) (d) (e), L. R. 3 C. D. 197. 
 126 (e). (g) Steady. Nelson, 2 Bea. 245; unless 
 
 (6) Sugd. Pow. (8th Ed.) 153 (6); influenced by her husband, Harris v. 
 
 conceded Willock v. Noble, L. R. 7 H. Molt, 14 Bea. 169. 
 L. 590 /. 4; and as to wills of person- (A) London Chartered Bk. v. Lempriere, 
 
 ality, Goods of De Pradel, L. R. 1 P. & L. R. 4 P. C. 572 ; Picard v. Hine, L. 
 
 M. 454. Qualified by Goodill v. Brig- R. 5 Ch. 278; Collett v. Dickenson, L. R. 
 
 ham, 1 B & P. 192. 11 CD. 687; and see as to the necessity 
 
 (c) Willock v. Noble, L. R. 7 H. L. of making the trustees defendants to 
 580, overruling Morwan v. Thompson, 3 these suits, Attwood v. Chichester, L. R. 
 Hag. 239. 3 Q. B D. 722. 
 
 (d) Ante p. 59. (i) Said Wainford v. Hayle, L. R.20 
 
 (e) Ante p. 60. Eq. 324. 
 
 (J) Testamentary and non-testa- (j) \Vainfordv.Hayle,L.R.20Eq.32l. 
 mentary dispositions of real estate Pride (fc) Mayd v. Field, L. R. 3 C. D. 587; 
 
 v. Bubb, L. R. 7 Ch. 64; testamentary Johnson v. Gallaher, 30 L. J. Ch. 309. 
 dispositions of personal estate, Goods of (/) See 37 & 38 Vic, C. 78, s. 6. 
 Tharp, L. R. 3 P. D. 76 ; Bishop v. Wall, 18
 
 138 
 
 FREEDOM OF JUDGMENT, &C. 
 
 Other instances 
 in which they 
 can dispose of 
 property as if 
 unmarried. 
 
 Restraint on 
 Anticipation. 
 
 as such an appointment would do if made by a man. 
 The wife of a convict has probably the same disposing 
 powers as an unmarried woman (a). A married woman 
 can as effectually consent to the exercise of a power of dis- 
 position as if she were unmarried (b); and can, if a bare 
 trustee, dispose of the legal estate as if unmarried (c); and 
 can dispose of an estate though legal if it has been conveyed 
 to her upon condition that she shall do so (d); and can, if 
 executrix, continue the chain of representation (e); and can, 
 if entitled to the proceeds to arise from the sale of property 
 which is held on trust to sell it, elect (/), or concur with 
 others interested in electing, whether it shall be sold or not, 
 but in thus electing she must separately state (/) her choice 
 in Court. And as regards property disposable by her deed, 
 she can in effect elect by the same means by which she 
 might dispose (g) of it. She cannot elect whether to take 
 under or against an instrument, but the Court will make 
 such election on her behalf (A). 
 
 A clause, contained in a disposition of property to a 
 woman, and prohibiting her from disposing of it, is effectual 
 (i), even to the extent of exonerating the property from 
 liability for her debts or contracts, and from dispositions by 
 which she fraudulently (J) obtains an advantage, and 
 generally from the liability to make good her misrepresen- 
 tations (k). But it is only effectual if the property be 
 limited to her separate use (I) or to her appointment (m), and 
 only while she is married (n), and only as regards property 
 productive of income (o) (under which gross sums imme- 
 
 («) Goods of Coward, 4 S. & Tr. 46. 
 (6) Gardner v. Savil, 2 Ro. 178. 
 (c) 37 & 38 Vic, c. 78, s. 6. 
 (rf) Daniel v. Ublry, W.Jo. 138. 
 
 (e) Conceded W illock v. Noble, L. R. 
 7 H. L. 589-90. [652. 
 
 (f) Slandering v. Hall, L. R. 11 C. D. 
 
 (g) Below p. 140. 
 
 (A) Cooper v. Cooper, L. R. 7 H. L. 53. 
 
 (i) Tullett v. Armstrong, 4 M. & Cr. 
 
 390; Brown \. Bamford, 1 Ph. 620; 
 
 Robinson v. Wheelwright, 6 D. G. M. G. 
 535; notwithstanding 20 & 21 Vic, c. 
 57 (see that Act, s. 1). [589. 
 
 (j) Stanley v. Stanley, L. R. 7 C. D. 
 
 (*) Arnold v. Woodhams, L. R. 16 Eq. 
 29. 
 
 (/) Accordingly 2 Mer. 487-8; Tullett 
 v. Armstrong, 4 M. & Cr. 393-4. 
 
 (m) Field v. Evans, 15 Sim. 375. 
 
 (n) Tullett v. A rmstrong, 4 M & Cr. 390. 
 
 (o) Ellis's Trusts, L. R. 17 Eq.409.
 
 FREEDOM OF JUDGMENT, &C. 
 
 139 
 
 diately payable (a) are not included though they be standing 
 in Court (b)). And it is not effectual as regards income 
 already accrued (c), nor does it extend to dispositions to 
 herself made for the purpose of barring entails id). And it 
 does not exonerate the property from liability to debts &c. 
 contracted at the time when she was owner of the property 
 without any such restraint or was unmarried (e). 
 
 In the cases not above specified a married woman can 
 make no testamentary disposition (/), even (it seems) 
 as regards choses in action which continue such at her death 
 (g), except that if her husband survive her (h), and, 
 after her death (h), being himself executor of her will, prove 
 it (*), or not being himself executor, assent to its being 
 proved (j), or otherwise act on it, as by delivering the 
 goods to the executor (k), such will becomes valid against 
 him as respects personal estate comprised in it (/). And 
 if he have for valuable consideration agreed that she may 
 bequeath such property the same result follows (m). But 
 his death in her lifetime does not validate her will (»), even 
 though she declare that she adheres to it (w), and a power 
 authorizing her to make in the event of her dying first a 
 disposition of the property by will will not give any force 
 to her will if she survives him («). Consequently a power 
 of disposition conferred by a settlement should be so 
 
 (a) Mount v. Mount, L. R. 8 C. D. 460. 
 
 (6) Re Broughtoris Trusts, L. R. 8 C. 
 D. 460. 
 
 (c) According to Fitzgibbon v. Blake, 
 3 Ir. Ch. 328; qualified by re Brettle, 2 
 D. G. J. S. 79 
 
 (rf) Cooper v. Macdonald, L. R. 7 0. 
 D. 288. 
 
 (e) London Sfc. Bk. v. Bogle, L. R. 7 
 C. D. 773; Sanger v. Sanger, L. R. 11 
 Eq. 470. 
 
 (f) Willock v. Noble, L. R. 7 H. L. 
 580; 34 & 35 Hen., c. 5, s. 14; 7 Wm. 
 IV & 1 Vic, c. 26, s. 8. But see Harg. 
 n. 4 to Co. Litt. 1 1 lb. 
 
 (j}) So assumed in Steadmany. Powell, 
 
 Their Testa- 
 mentary 
 Dispositions 
 in cases not 
 above specified. 
 
 (Consequent 
 caution as to 
 Framing 
 Settlements). 
 
 c. t. Lee 58. But the contrary opinion 
 is expressed, and fortified by ancient 
 authorities, in Swinburne on Wills 89 
 (13). 
 
 (A) Willock v. Noble, L. R. 7 H. L. 
 59 1-7. 
 
 (i) Exp. Fane, 16 Sim. 406. 
 
 (j) At the time Henley v. Phillips, 2 
 Atk. 69; Brooke v. Turner, 2 Mod. 170; 
 Bro. Ab." Devise "p. 34. 
 
 (k) Maas v. Sheffield, 1 Robert 364. 
 
 (/) See Willcock v. Noble; Exp. Fane; 
 Henley v. Phillips; Brooke v. Turner; 
 Maas v. Sheffield. 
 (wi) Sd. Tucker v. Inman, 4 M. &Gr . 1077. 
 
 (n) Willock v. Noble, L. R. 7 H. L. 580.
 
 140 
 
 FREEDOM OF JUDGMENT, &C. 
 
 Their Non- 
 testamentary 
 Dispositions 
 in cases not 
 above specified. 
 
 (By deed 
 
 acknowledged, 
 
 &c.) 
 
 framed as to be exercisable whether she or her husband 
 lives the longer. 
 
 A married woman's non-testamentary dispositions are 
 void (a), except in the cases already mentioned (b), and 
 except, (as regards the legal, with or without the beneficial, 
 estate in a copyhold held of a manor by the custom of 
 which a surrender is sufficient), when made by such a sur- 
 render (c), and except when the disposition is made by 
 deed (d) and either the Court has (for the reasons specified 
 in the act) dispensed with her husband's concurrence^), or 
 he has concurred (/) and she apart from him (g) acknow- 
 ledged her intention before a judge (h) or two commissioners 
 (h). And even when these requisites are complied with 
 the disposition is only valid as regards interests in tene- 
 ments (i), or in money to be expended in the purchase of 
 an interest in a tenement (*), and as regards reversionary 
 interests in personal estate (j), and as a release of her right 
 to a settlement (j) out of property otherwise liable to it 
 (&). But in respect to corporeal chattels it is not necessary 
 that she should have a disposing power, because these 
 belong to the husband (/), and in respect to present 
 interests in money funds a disposition by the husband 
 would carry the income (w) during the coverture, and 
 would thus change her interest to a mere reversionary one, 
 which I apprehend she could dispose of under the act. 
 Her power to dispose (even with these formalities) of 
 personal estate is confined to such as she derives under a 
 disposition made since 1857 («), and does not extend to 
 
 (a) 4 Crug. Dig. 20. 
 
 (b) Ante p. 136, 139. 
 
 (c) 3 & 4 Wra. IV, c. 74, ss. 77, 90. 
 
 (d) 3 & 4 Wm. IV, c. 74, s. 77. 
 
 (e) 3 & 4 Wm. IV, c. 74, s. 91. 
 
 (f) 3 & 4 Wm. IV, c. 74, s. 77. 
 
 (g) Re Bendyshe, L. J. 26 Cb. 814. 
 (n) 3 & 4 Wm. IV, c. 74, ss. 77, 79, 
 
 -83; 17 & 18 Vic, c. 75; 19 & 20 Vic, 
 c. 108, s. 73; that this is unnecessary 
 when his concurrence has been dis- 
 
 pensed with, Goodckild v. Dotigal, L. R. 
 3 C. D. 650. 
 
 (0 3 & 4 Wm. IV, c. 74, s. 77; and 
 as to Disclaimer 8 & 9 Vic, c. 106, s. 6. 
 As to Ireland see (besides the Analo- 
 gous Acts) 4 1 Vic, c. 23. 
 
 (j) 20 & 21 Vic, c. 57, s. 1. 
 
 (i) See Ante p. 60-1. 
 
 (/) Ante p. 55. 
 
 (w) Ante p. 59 (6). 
 
 («) 20 & 21 Vic, c. 57, s. 1.
 
 FREEDOM OF JUDGMENT, &C. 
 
 Ml 
 
 such as was settled on her marriage (a). A certificate of 
 her acknowledgment must in all the above cases be filed 
 in the Common Pleas Division (b). Before the above 
 enactments she could dispose of her interests in tenements 
 by the elaborate fictions known as Fines and Recoveries (c). 
 
 It follows from the above that a contract made by a 
 married woman to dispose of property not being her 
 separate estate cannot be enforced unless it amount to an 
 exercise of a power (d) ; and it has been held that a trust 
 to sell does not for this purpose imply a power to contract 
 to sell (d). 
 
 To prevent the exercise of undue influence in procuring 
 dispositions of personal chattels from persons who retain 
 possession (e) of them, and in obtaining warrants of 
 attorney to confess judgment (/), the law requires an 
 explanation and attestation by a Solicitor; but in the 
 former case this is not necessary as between the parties 
 but only as respects priorities. 
 
 Their 
 
 Contracts in 
 cases not 
 above specified. 
 
 Attestation by 
 Solicitor 
 necessary to 
 Bills of Sale 
 and Warrants 
 to confess 
 Judgment. 
 
 (a) 20 & 21 Vic, c. 37, s. 4. 
 
 (6) 3 & 4 Wm. IV, c. 74, s. 84. 
 
 (c) 5 Cru. Dig., 71, 89, 172-3; Co. 
 Litt. 353b; Cruise on Fines; Cruise on 
 Recoveries. 
 
 (rf) Avery v. Griffin, L. R. 6 Eq. 606. 
 
 (e) 41 & 42 Vic, c-31, s. 10; seethe 
 Chapters on Priorities. 
 
 (f) 3 Geo. IV, c. 39 ; 6 & 7 Vic, C. 
 66; 32 & 33 Vic, c. 62, s. 24.
 
 ( 142 ) 
 
 CHAPTER XVI. 
 
 VALUABLE CONSIDERATION &C. AS AFFECTING THE VALIDITY 
 OF CONTRACTS, &C. 
 
 Valuable Con- 
 sideration 
 Defined. 
 
 When neces- 
 sary. 
 To a Contract. 
 
 Valuable consideration — that is a return rendered or 
 undertaken by the promisee or disponee and consisting of 
 something burthensome (a) to him or to those for whom he 
 undertakes (b) or beneficial to the promisor (c) or to some 
 one for whom he seeks it (d) (i), is necessary to the validity 
 of a promise (e), even though the thing promised be no more 
 than the promisor was already morally bound to do (n), 
 and even though the promise was merely to remunerate 
 the promisee for benefits conferred by him upon the prom- 
 isor (/) (unless conferred at the previous request of the 
 promisor (g) ), and even though the promise in question be 
 that contained in a Bill of Exchange (A), (I mean asbetwen 
 the original parties (?')). But consideration is not necessary 
 when the promise was accompanied by the Formalities 
 
 (i) A mere detriment to the promisee was said by the dissentient Judge in 
 Shadwell v. Shadwell, 9 C. B. N. S. 177, not to be sufficient unless some request 
 for it antecedent to and independent of the promise had been made by the 
 promisor. Thus he thought a promise 'I will give you £100 a year while 
 you continue in your present chambers," would be void for lack of consideration. 
 
 (n) This has been so laid down and generally understood; but it has been 
 held (j) that a Promissory Note (securing the amount agreed upon as the 
 consideration of a promise to convey land, which promise was invalid because 
 not in writing) is valid, and that a Promissory Note (i) given in renewal of 
 another which had been given to a child gratuitously from affection is valid 
 after the maker's death against his assets, though still held by the original 
 payee. But the latter was postponed to the claims of Creditors for value. 
 
 (a) Williamsonv. Clements, 1 Tau. 523. 
 (6) Bailey v. Croft, 4 Tau. 611. 
 
 (c) Davies v. Morgan, 4 B. & C. 8. 
 
 (d) Bailey v. Croft, 4 Tau 611. 
 
 (e) Brealey v. Andrew, 7 A. & E. 108; 
 Clay v. Willis, 1 B. & C. 364. 
 
 (/) Eastwood v. Kenyon, 1 1 A. & E. 
 438. 
 
 (j) Lampleiyk v. Braithwaite, I Sm. 
 L. C. 67. 
 
 (h) Rimini v. Van Pragh. L. R. 8 C. 
 P. 1 ; Holliday v. Atkinson, 5. B. & C. 501. 
 
 (i)Aformv.Z-ee, Bay ley on Bills, 397. 
 
 (j) Jones v. Jones, 6 M. & W. 84. 
 
 (i) Dawsonv. Kearton, 3 S.&-G. 186; 
 Seton v. Seton, 2 B. C. C. 610.
 
 VALUABLE CONSIDERATION, &C. 143 
 
 which the law has prescribed for ensuring Deliberation (a), 
 (namely a Deed whether Bond (b) or Covenant (c)) unless 
 the remedy sought be a specific one (d), (that is, unless . 
 some other remedy than pecuniary damages is sought); 
 nor is it necessary when the promise was merely to remun- 
 erate the promisee for something which he had done at the 
 promisor's request (e); nor when it is merely to do some- 
 thing which he was once legally bound to do (as to pay a 
 debt barred by the Statute of Limitations (/), or by a 
 Certificate in Bankruptcy (g)), or when it is to perform a 
 voidable promise of which that in question may be treated 
 as confirmatory (h). 
 
 A consideration is not necessary to support a disposition To a Di S po_ 
 of the Legal estate (i), nor to support a disposition accom- sition. 
 panied by the formalities necessary for ensuring deliberation 
 (J), unless it be a Release of claims (k), (that is consideration 
 is not as between the parties necessary in these cases, 
 though its absence often affects priorities (/)); but the 
 meaning of saying it is necessary to a release of claims 
 probably is, not that such a release will be invalid as to the 
 legal right of action, but merely that, as between the parties, 
 it will be voidable if gratuitous, unless proved to have been 
 fairly obtained. 
 
 In determining what shall be deemed a Valuable Con- What deemed 
 
 11-11- sufficient 
 sideration the Courts have been extremely liberal in Consideration. 
 
 considering trivial matters as amounting to such, and they Generally. 
 will generally imply an undertaking on the part of a 
 
 (a) Ante p. 123 sqq. (/) Phillips v. Phillips, 3 Hare 299. 
 
 (6)^ dames v. Hallett, L. R. 6 Eq. 468. (g) Rimini v. Van Pragh, L. R. 8 Q. 
 
 (c)Sharinglonv.Strotton, Plow. 308-9. B. I. 
 
 (d) Jefferysv.Jefferys, Cr.& Ph. 138; (h) See ante p. 113. 
 
 qualified as to Releases of Powers by («') See below in the Chapters on 
 Isaac v. Hughes, L. R. 9 Eq. 191. Priorities. 
 
 (e) Lampleigh v. Braithwaite., 1 Sm. (j) Ante v . 122, 127. 
 
 L. C. 67 ; but I cannot reconcile Hulse (*) Roche v. Morgell, 2 S. & L. 727. 
 
 v. Hulse, 17 C. B. 711 with this prin- (/) See below in the Chapters on 
 
 ciple, and it is qualified by Roscorla v. Priorities. 
 Thomas, 3 Q. B. 234.
 
 VALUABLE CONSIDERATION, &C. 
 
 144 
 
 la certain 
 cases. 
 
 For Compo- 
 sition. 
 
 For Com- 
 promise. 
 
 creditor to allow time to his debtor as a consideration for a 
 promise by the latter to give additional security (a). But 
 the definition of consideration is so clear, and the question 
 as to its sufficiency arises so rarely, that I need advert to 
 none but a few salient points respecting it, especially as — 
 owing to the doubtfulness of the question whether the 
 decisions respecting its sufficiency for the purpose of 
 affecting priorities are applicable as between the parties — I 
 intend to postpone the consideration of those decisions 
 until I come to treat of Priorities. 
 
 The doing of or agreeing to do that which one is legally 
 Bound to do is no consideration for a promise by the party 
 to whom one is so bound (b), unless one claims and has 
 some colour for claiming that one is not bound (c), (although 
 it may be sufficient consideration to support a promise by 
 a person to whom one is not thus bound (d)) ; and conse- 
 quently an agreement to pay part of a debt is no consider- 
 ation for a release of the rest (e), even though similar 
 agreements be entered into with all one's creditors (/), 
 unless some new advantage be conferred on the creditor 
 (for example an additional security) ; but if two or more 
 creditors are parties to one and the same agreement, by 
 which each in consideration of payment of part of his debt 
 relinquishes his right to the residue, the relinquishment 
 of part of his rights by one creditor will be a sufficient 
 consideration to support the similar relinquishment by each 
 of the others (g). The abandonment of a doubtful claim is 
 in general sufficient consideration (h) for a compromise, 
 but not if the claim was unfounded in law (i) unless the 
 
 (a) A lliance Bank v. Brown, 2 D. & 
 S. 289; Exp. Cooper re Baum, L. R. 10 
 C. D. 324. 
 
 (6) liracewell v. Williams, L. R. 2 C. 
 P. 196; Tucker v. Laing, 2 K. & J. 745; 
 Deacon v. Gridley, 15 C. B. 295. 
 
 (c) Kearns v. Darrell, 6 C. B. 596. 
 
 (d) Scotson v. Pegg, 6 II. & N. 295. 
 
 (e) Mc. Manus v. Bark, L. R. 5 Ex. 
 65; Overton v. Bannister, 3 Hare 503; 
 
 Thomson v. Eastwood, L. R. 2 Ap. 234, 
 well stated in Boothbey v. Sowden, 3 
 Camp. 175. 
 
 (f) Boyd v. Hind, 1 H. & N. 938. 
 
 (g) Slater v. Jones, L. R. 8 Ex. 186; 
 qualified by Taylor v. Manners, L. R. 1 
 Ch. 48- 
 
 (A) 2 W. & T. L. C. (4th Ed.), 835,sqq. 
 (t) Thomson v. Eastwood, L. R. 2 Ap. 
 215, 234.
 
 VALUABLE CONSIDERATION, &C. 
 
 145 
 
 point was open to some reasonable doubt. An agreement 
 to accept property in respect of which the transferor is 
 liable to burthens and to indemnify him against them is 
 sufficient consideration for an agreement to transfer it (a). 
 Acts done in reliance on a contract or representation are 
 sufficient consideration to support it in the cases of which 
 I have treated above (b), but only if the ads be such as 
 were in the contemplation of the promisor or representor 
 (c), and, in case of a representation, only if the representor 
 induced the representee to perform them in reliance on the 
 representation (i). 
 
 Adequacy of consideration is not necessary (e), even on 
 the sale of a Reversion (/), unless the vendor be a Fiduciary 
 (g), or the inadequacy be so great as to shock the consci- 
 ence (A), but still inadequacy may always be taken into 
 account along with other circumstances as Evidence of 
 Fraud (i) or of some other Invalidating Circumstance (/), or 
 (when the price was determined by arbitration) as shewing 
 that the Arbitrator probably proceeded on erroneous 
 principles, or without due care, and therefore as a sufficient 
 ground for refusing specific performance (k). 
 
 Nor is Moderation in the amount of consideration neces- 
 sary even on specifically enforcing a contract (/), except in 
 the like cases (m). 
 
 The question who is entitled to sue when the consider- 
 ation is rendered (or undertaken for) by one person and the 
 promise made to another will be discussed along with the 
 
 Adequacy 
 when necessary 
 
 Moderation in 
 amount of 
 Consideration. 
 
 From whom 
 consideration 
 must move. 
 
 (a) Cheale v. Kenward, 3 D. G. J. 27. 
 
 (b) Ante p. 99, 104, 107- 
 
 (c) As to Representations of Fact, 
 Freeman v. Cooke, 2 Ex. 654, Collins v. 
 Cave, 6 H. & JV. 131; as to Represen- 
 tations of Intention, forden v. Money, 
 (as to the house in India) 5 H. L. C. 
 185. 
 
 (d) Ante p. 99. 
 
 (e) Collier v. Mason, 25 Bea. 200; 
 Western v. Russell, 3 V. & B. 187 ; Co les 
 V. Trecolhick, 9 Vez. 246. 
 
 (f) 31 Vic, c. 4. 
 
 (g) Goodwin v. Fielding, 4 D. G. M. 
 G.90. 
 
 (h) Stillwell v. Wilkins, 1 Jac. 282; 
 Underhill v. Horwood, 14 Vez. 28. 
 
 (i) Filmer v. Gotl, 4 B. P. C. 230; 
 Maddeford v. AuUwick, 2 M. & Ke.279. 
 
 (j) See Ante as to Undue Influence, 
 p. 130, 131. 
 
 (fc) See Emery v. Wase, 5 Vez. 848; 
 Parken v. Whitby, T. & R. 366. 
 
 (I) Abbott v. Sworder, 4 D. G. S. 448. 
 
 (m) Intimated Abbott v. Sworder. 
 
 19
 
 14G 
 
 VALUABLE CONSIDERATION, &C. 
 
 Mutuality of 
 Right neces- 
 sary to a 
 Contract. 
 Generally. 
 
 On Contracts 
 by Letter. 
 
 doctrine of Privity of Contract, because I think it is from 
 that principle that our technical rule on this subject is 
 derived (a). 
 
 From the principle that a contract not under seal must 
 be binding on both parties our Courts infer that both must 
 contract simultaneously, so that the acceptance (to be valid) 
 must follow immediately on the offer, even though the 
 contrary be expressly stipulated. For example, if I offer 
 to sell property to A on specified terms, and allow him an 
 hour to make up his mind, the transaction is void, even 
 though he accept my offer within the time, at least if I in the 
 meantime do anything to show that I no longer intended 
 the offer to be open (as by selling to another person (b)), 
 and the fact of my so doing becomes known to A before he 
 accepts my offer. I say "at least if" these additional 
 circumstances concur, because they did concur (and were 
 somewhat relied on by the Court) in the most recent decision 
 on the subject, but I rather infer from the language of the 
 Court that the Judges meant to approve of a decision 
 pronounced in 1790, according to which these additional 
 circumstances are not necessary (c) (1). However I con- 
 ceive that if it could be proved (or perhaps presumed) that 
 my assent continued until acceptance, the contract would 
 not be invalidated by the mere fact that I did not expressly 
 repeat it. And, as the rule can only be complied with when 
 the parties or their agents are personally present together, 
 it is modified in respect to contracts by Letter, for the 
 acceptance of an offer made by letter is effectual if the 
 acceptance be expressed in an answering letter written 
 
 (1) I cannot reconcile this decision (c) with the reasons given for a later 
 one (rf), although I think the latter might be supported on the ground that the 
 plaintiffs had undertaken not to purchase goods of the kind in question from 
 anyone but the defendant. 
 
 (a) Below Chap. XVII. 
 (6) Dickenson v. Bodds, L. R. 2 C. 
 D. 463. 
 
 (c) Cooke v. Oxley, 3 T. R. 653. 
 
 (d) Great Northern R. Co. v. Witham, 
 L. R. 9 C. P. 16.
 
 VALUABLE CONSIDERATION, &C. 147 
 
 within a reasonable (a) period after receipt of the offer, 
 and either the offeror acquiesces in the acceptance (b), or 
 the offer itself was accompanied by a representation that 
 he would hold himself bound as soon as it should be 
 accepted (c), or the nature of the contract shows that it 
 would be unfair towards the offeree that the offeror should 
 not be thus bound (in which case such a representation is 
 held to be implied (c)). An answer posted on the day on 
 which the offer was received is held to be within reasonable 
 time, though it be not sent by the next post (d), unless the 
 custom of the place or other circumstances show this 
 period to be unreasonable (i). Acquiescence by the offeror 
 will be presumed unless he manifest his dissent (as by 
 writing again to suggest other terms (e)); and in case of a 
 mercantile contract of a simple character, it is held to be 
 unfair that the offeror should not be bound by the accept- 
 ance (/), and consequently a retraction of the offer, made 
 after the letter accepting it has been posted, is too late (g), 
 and he is bound though he never received the letter (h). 
 In contracts requiring the arrangement of numerous details 
 the Courts wisely adopt the opposite view (i) ; and contracts 
 for the sale of land (J) are held (on account of the harsh- 
 ness of the rules of law towards vendors) to fall under this 
 class. An Offeror can in some measure protect himself 
 against delay by stipulating that the answer must be sent 
 by return of post; but such a stipulation is construed as 
 
 (a) Dunlop v. Higqins, 1 H. L. C. 331; L. R. 4 Ex. D. 216, overruling 
 
 Kennedy v. Lee, 3 Mer. 454-5. British <^c. Co. v. Colson, L. R. 6 Ex. 
 
 (6) Kennedy v. Lee, 3 Mer. 455, 1 1-3-, 108. As this point excites great differ- 
 
 Hussey v Home-Payne, L. R. 4 Ap. 317. ence of opinion, the decision will prob- 
 
 (c) Said Brogden v. Metropolitan R. ably be further appealed from. 
 
 Co., L. R. 2 Ap. 691. (») Hussey v. Home-Payne, L. R. 4 
 
 (rf) See Dunlop v. Higgins, 1 IT. L. Ap. 3 1 7, a case which virtually narrows 
 
 C. 381. the decision in Potter v. Sanders, 6 
 
 (e) Hussey v. Home-Payne, L. R. 4 Hare 1, to cases in which merely 
 Ap. 317. the price, and not the details of the 
 
 (f) Dunlop v. Higgins, 1 II. L. C. 381. contract, are in dispute. 
 
 (g) Harris's Case, L. R. 7 Ch. 587. 0') Hussey v. Home- Payne. 
 (A) Household Fire Sfc. Co. v. Grant,
 
 148 
 
 VALUABLE CONSIDERATION, &C. 
 
 When part of 
 consideration 
 already- 
 rendered. 
 
 When Contract 
 Voidable. 
 
 When Contract 
 (to the validity 
 of which Sig- 
 nature is 
 necessary") has 
 been signed by 
 one party only. 
 
 meaning "by the post next after my letter actually arrives," 
 and therefore does not protect him if his letter be delayed 
 in transmission (a). 
 
 The render of part of the consideration for an offer 
 which was made on the condition that the whole should be 
 rendered seems to create an exception to this rule, and to 
 prevent the plaintiff from retracting till the whole be ren- 
 dered, after which, of course, there is no room for the 
 application of the rule (b). 
 
 And when a Contract is voidable only it may, as we have 
 seen (c), bind one party and not the other: but in this case 
 the exception is generally more apparent than real, for, if 
 the invalidating circumstance be Mistake neither party is 
 bound ; if it be Fraud or the like the guilty party is aware 
 of it and might inform the other, and if he did so any sub- 
 sequent action on it would confirm it and bind both ; if it 
 be Undue Influence there has not, I believe, been any 
 decision that the party who is not bound can (before he 
 is in a position to confirm the transaction) sue for a part of 
 the consideration still unpaid; if it be Insanity, it would be 
 impossible for the Lunatic to sue until he has recovered 
 his sanity and so become able to confirm it : I conclude 
 therefore that a contract or disposition made for valuable 
 consideration can scarcely ever be binding on one party 
 until something occurs to make it binding on both, unless 
 Infancy be the invalidating circumstance. An Infant may 
 indeed, while still under age, recover damages (d) for breach 
 of a voidable contract made by him, but he cannot enforce 
 it specifically (e). 
 
 We shall hereafter (/) see that writing signed by the 
 
 (n) Adams v. Lidsell, 1 B. & A. 681. 
 
 (6) Shadwell v. Shadwell, 9 C. B. N. 
 S. 159; Said Great Northern R. Co. v, 
 Witham, L. R. 9 C. P. 16; but I cannot 
 reconcile Hulse v. Hulse, 17 C. B. 711 
 with this principle unless it be sup- 
 ported on the ground that the period 
 during which the future services were 
 
 there to be rendered ought to have 
 been defined. 
 
 (c) AnteQh. XII. 
 
 (rf) Bruce v. Warwick, 6 Tau. 1 1 7. 
 
 (e) Flight v. Bolland, 4 Russ. 298. 
 
 (/) Post, Chapter on Formalities 
 for evidencing a Contract, &c.
 
 VALUABLE CONSIDERATION, &C. 
 
 140 
 
 "party (i) to be charged" is necessary to the validity of 
 certain contracts. In such a case, Signature by one party 
 only would obviously not entitle him to maintain an action 
 against the party who has not signed, and therefore if the 
 doctrine under consideration were strictly applied would not 
 entitle that party to maintain an action against the former; 
 but it is nevertheless held so to entitle him whether the 
 action be to recover damages (a) or to enforce the contract 
 specifically (b), unless the party who signed has required 
 the other to sign within a reasonable time on pain of avoid- 
 ance of the contract, and he has neglected to do so (c). 
 
 The doctrine just discussed is termed the doctrine of 
 Mutuality; and I will therefore here advert to another 
 doctrine (passing by the same name) viz: "that the Court 
 does not grant specific performance unless it can give full 
 relief to both parties" (d): It was on this ground that the 
 rule entitling an Infant (even while he continues such) to 
 sue on a voidable contract was held not to extend to a suit 
 for specific performance (e). 
 
 Failure of Consideration entitles the promisor to avoid 
 the contract (/), and the cessation of a continuous con- 
 sideration terminates the benefit of which it formed the 
 consideration in many instances, as, formerly an Exchange 
 (g) or Partition (g) of Lands, and even now a Sale of 
 Goods while still undelivered (h), and a lease of lands 
 which are afterwards rendered worthless by the en- 
 croachment of the sea (*), although the like rule has 
 
 Mutuality of 
 Remedy. 
 
 Failure of 
 
 Consideration 
 
 and Cognate 
 
 Doctrines; 
 
 (Continuous 
 
 Considerations, 
 
 &c). 
 
 (i) As to some Contracts, the Statute uses the expression "parties to he 
 charged" in the plural, hut the observations in the text apply to these also (j). 
 
 (a) Reuss v. Picksley, L. R. 1 Ex. 342. 
 
 (6) Seton v. Slade, 7 Vez. 275; Said 
 (in Boys v. Ayersl, 6 Madd. 323 ; and in 
 Warner v. Willing ton, 3 Drew. 523) to 
 be settled. 
 
 (c) Said Warner v. Willington, 3 
 Drew. 531 / 26. 
 
 (<f) Blackett v. Bates, L. R. 1 Ch. 124 ; 
 Adderley v. Dixon, 1 S. & St. 612. 
 
 (e) Flight v. Bolland, 4 Russ. 298. 
 
 (/) Agra §c. Bk. v. Leighton, L. R. 
 2 Ex. 56; Benjamin on Sales (2nd Ed.) 
 331-2. [s. 4. 
 
 (<7) Abolished by 8 & 9 Vic, c. 106, 
 
 (h) See Grice v. Richardson, L. R. 3 
 Ap. 319; Ogg v. Shuler, L. R. 1 C. P. 
 D. 47. 
 
 (i) 1 Ro Ab. 236. 
 
 (j) Watts v. Ainsworth, 1 H. & C. 87.
 
 150 
 
 VALUABLE CONSIDERATION, &C. 
 
 not been extended to the destruction of buildings upon the 
 land, even when they constitute the most valuable part of 
 the thing demised (a). On similar principles depend the 
 doctrine that such a work or service as from its nature can 
 only be carried out so long as certain conditions continue 
 is conditional on their continuance (b), and the doctrine 
 that on the Bankruptcy or Death of a master his apprentice 
 might recover in equity a proportion of the premium (c), 
 and the doctrine respecting Fees Conditional explained in a 
 former chapter (d), and the doctrine of equitable liens which 
 I reserve to a later one. The failure by eviction or other- 
 wise of an estate in a tenement does not entitle the 
 purchaser to recover back, on the ground of failure of 
 consideration, the purchase money from the vendor (e). 
 
 Amongst the circumstances necessary to entitle a prom- 
 isee to enforce the contract specifically, there is one so 
 nearly akin to consideration that I propose to discuss it in 
 this chapter — I mean the existence of circumstances 
 shewing that specific performance is necessary to the accom- 
 plishment of his purpose (/). Money is generally sufficient 
 to compensate a party for the breach of a mercantile 
 contract or a contract for the sale of personal chattels, and 
 consequently such contracts cannot be in general specifi- 
 (Sale of Land), cally enforced ; but when a man agrees to purchase Land 
 &c. there is generally something in that particular piece of 
 land which suits him better than another; and when a 
 man agrees to sell land he is generally anxious to get rid of 
 the burthens attaching to its possession, and to receive not 
 merely a compensation for the loss which he may suffer 
 but the full sum for which he agreed to sell. Consequently 
 in agreements to sell or buy any interest in a tenement 
 
 Conditions of 
 specific 
 performance. 
 Pret'tum 
 Affectionis (or 
 inefficiency of 
 pecuniary 
 damages). 
 
 O) 2 Ld. Ray. 1477, 2 Saund. 422; 
 Balfour v. Weston, 1 T. R. 310; Iron v. 
 Gorton, 5 Bing. N. C. 501. 
 
 (6) Boast v. Firth, L. R. 4 C. P. 1 ; 
 Iloicell v. Coupland, I,. R. 9 Q. B. 462. 
 
 378-9; Hirst v. Tolson, 2 Macn. & G. 
 134; disapproved and not followed at 
 law Wklncup v. Hughes, L. R. 6 C. P. 78. 
 
 (J) Ante p. 48-9. 
 
 (0 Clare v. Lamb, L. R 10 C. P. 334. 
 
 Qc) Story Eq. Jur. (2nd Ed.), 83-9, (/) Adderley v. Dixon, 1 S.& St. G10.
 
 VALUABLE CONSIDERATION, &C. 
 
 151 
 
 the requirement in question is held to be fulfilled (a) ; and 
 so it is in case of an agreement to give a mortgage where 
 the money has been paid and the borrower is not prepared 
 to pay it off (b); or an agreement to sell a personal chattel 
 having a value individual to itself (c) (and a ship falls under 
 this corollary, for though formerly specific performance of 
 an unregistered agreement to deal with a ship was pre- 
 vented by express legislation (d) this is so no longer (<?)); 
 or an agreement to sell a patent right (/) ; or an agreement 
 to sell shares in a particular Company, because it may not 
 be practicable to obtain other shares of a similar kind in 
 the market (g); much more an agreement to accept shares 
 when originally issued (h). But an agreement for the 
 transfer of such stock or shares as are certain to be readily 
 obtainable in the market is not specifically enforcible (/) 
 unless (it seems) some burthen or liability attaches to them 
 
 Again, the absence of any standard by which damages 
 could (until long after the first breach) be assessed fulfils 
 this requirement, and so renders the contract specifically 
 enforcible (k). In considering the cases cited in the notes 
 it must be remembered that whatever contract can be 
 enforced specifically at the suit of one party can be also at 
 that of the other (/). 
 
 (Mortgage). 
 
 (Unique 
 chattel). 
 (Ship). 
 
 (Patent). 
 (Shares, 
 
 unless readily- 
 obtainable in 
 the market). 
 
 No standard 
 for assessing 
 Damages. 
 
 (a) Hall v. Warren, 9 Vez. 608; 
 Harnett v. Yielding, 2 S. & L. 553. 
 
 (6) Herman v. Hodges, L. II. ! 6 Eq. 1 8. 
 
 (c) Thorn v. Commissioner of P. W., 
 32 Bea. 490; Ptisey v. Pusey, 1 Vern. 
 273, approved Falcke v. Gray, 4 Drew. 
 651 ; Adderley v. Dixon, 1 S. & St. 607. 
 
 (rf) Liverpool Borough Bk. v. Turner, 
 2 D. G. F. J. 502. 
 
 (c) Lacon v. Liffen, 1 Giff. 75. 
 
 (f) Cogent v. Gibson, 33 Bea. 557. 
 
 (g) Duncuft y.Albrecht, 12 Sim. 199, 
 
 proved Cheale v. Kenward, 3 D. G. J. 
 30; Shaw v. Fisher, 5 D. G. M. G. 596. 
 
 (A) Sew Brunswick fyc. Co v. Mug- 
 geridge, 4 Drew. 686. 
 
 (»') Cuddee v. Rutter, 1 W. T. L. C. 
 (4th Ed.), 786. 
 
 (j) See Cheale v. Kenward, 3 D. G. 
 J. 27. 
 
 (Jb) Ball v. Coggs, 1 B. P. C 140; 
 Adderley v. Dixon, 1 S. & St. 61 1-12. 
 
 (/) Ante p. 149 (d) («)•
 
 ( 152 ) 
 
 CHAPTER XVII. 
 
 WHO MAY SUE ON A CONTRACT AS DERIVING TITLE TO IT 
 UNDER THE PROMISEE. 
 
 Promisee 
 himself. 
 
 Executors, &c. 
 
 Injury of a personal, as distinguished from a pecuniary, 
 character, resulting from the breach of a promise, entitles 
 only the promisee himself during his life, not his represen- 
 tatives after his death, to sue for the breach (a). 
 
 Injury of a pecuniary character (b), or injury to his 
 personal estate {c), entitles not only the promisee himself, 
 but his executors or administrators (d) after his death, to 
 recover damages, (which when recovered will of course be 
 part of his personal estate) ; while the beneficial tendency 
 to his personal estate of performance of the contract; entitles 
 them to either recover damages for breach of it, or, (in cases 
 in which he himself might have done so,) to specifically 
 enforce it (e). An injury resulting in his lifetime, even to 
 his inheritable estate, entitles his executors &c, not his 
 heir, to recover damages ; because what was vested in him 
 at his death was a right to pecuniary damages, and this, of 
 course, goes to the executors ; and accordingly, the breach 
 of a contract not under seal to pay to the purchaser of an 
 inheritance the expenses which he has had to incur in 
 consequence of the sale going off through a defect in the 
 vendor's title entitles his executors &c, not his heir, to 
 sue (/). So a promise to purchase an inheritance may be 
 enforced by the executor, not by the heir, of the vendor, 
 because the purchase money is part of the personal 
 
 (a) Chamberlain v. Wilkinson, 2 M. & 
 S. 408. 
 
 (6) Bradshaw v. Lancashire R% Co., 
 L. R. 10 C. P. 189. 
 
 (c) 1 Saund. 216a n(l). 
 
 (d) 31 Ed. Ill, c. 1,b. 11. 
 («) Shepheardv. Walker, L.R. 20 Eq. 
 659. 
 (f) Or me v. Uroughton, 10 Bing. 531.
 
 WHO MAY SUE ON A CONTRACT, &C. 153 
 
 estate (a); but the executor, to obtain the legal estate, 
 must make the heir or other holder of it a defendant. 
 
 Injury to the promisee's inheritable estate, resulting Heir, 
 after his death, from the breach (either befox - e (b) or after it) 
 of the promise, entitles his heir to recover damages, if the 
 promise was made by deed (c), and in language showing 
 that it was intended to continue in force after the death (as 
 when it is expressed to be with him and his heirs or with 
 him and his executors (d)). This includes a covenant with 
 him and his heirs to convey lands to him and them (<?). 
 And the beneficial tendency of performance to the inheri- 
 tance entitles alike the heir and devisee to specifically 
 enforce (/) the promise as fully as the promisee (g) himself 
 might have done, even though it be not (g) made by deed 
 (g), nor expressed to be made with the heirs (g). A 
 promise to sell an inheritance falls (g) under this head. 
 The heir of the purchaser is entitled to specifically enforce 
 the contract, even though the purchaser himself had not 
 accepted the title (h), and though at the purchaser's death 
 there were estates outstanding (h) ; but only if the vendor 
 was then entitled, or could (by payment of money or doing 
 some other a<£t in his power) have entitled himself (i), to 
 require the holders of outstanding estates to convey them 
 (i); and only if the title was then in other respects perfect 
 (/'). Under such circumstances the heir or devisee ought, 
 on principle, to have the same right to make the executor 
 pay the purchase money out of the personal estate, as the 
 executor would to make the heir convey the hereditaments, 
 and by judiciary law he had this right (k), but it has been 
 taken away by statute (I). 
 
 (a) Hoddel v. Pugh, 33 Bea. 489. (&) Garnettv. Acton, 28 Bea. 333, 337. 
 
 (6) Jones v. King, 4 M. & S. 188. (i) Brown v. Monck, 10 Vez. 597. 
 
 (c) 2 Saund. 181c. n (c). (j) Garnett v. Acton. 28 Bea. 338-9. 
 
 (d) Lougher v. Williams, 2 Lev. 92. (k) Harding v. Harding, L. R. 13 Eq. 
 
 (e) Wotton v. Cook, 1 And. 53. 493. 
 
 (/; Cooper v. Jarman, L. R. 3 Eq. 98. (/) 30 & 31 Vic, C. 69 ; 40 & 4 1 Yic. , 
 («7) Garnett v. Acton, 28 Bea. 333. c. 34. 
 
 SO
 
 154 
 
 WHO MAY SUE ON A CONTRACT, &C. 
 
 Assign. 
 1. By Nova- 
 tion. 
 
 2. By Assign, 
 ment without 
 Novation. 
 
 How far 
 subject to 
 counter claims. 
 In general. 
 
 If contract 
 specifically 
 enforcible and 
 assignee 
 seeking to 
 enforce it. 
 
 A Novation, (that is a new agreement by the promisor 
 with a third person, that, in consideration of the latter 
 procuring the extinguishment of the original promise, the 
 former shall be bound to him as he previously was to the 
 original promisee), is, (when the original promisee 
 concurs so as to extinguish the original promise), an 
 effectual transfer of the promise (a). 
 
 A mere Assignment of the promise, (without the con- 
 currence of the original promisor), entitles the assignee to 
 the same damages as the original promisee (b), if it be 
 made in the manner prescribed by law (b), and followed 
 by notice to the promisor (b) or his representatives (i). 
 But such an assignment is subject to all counter-claims 
 which, if the assignment had not been made, would have 
 been valid against the assignor, so far as they arose from 
 transactions occurring before (c) the notice whether before 
 or after the assignment (d), unless either the party liable be 
 precluded from setting them up, (and if the contract be a 
 bond from a Company, slight circumstances are sufficient 
 thus to preclude him (e)), or the terms of the contract show 
 that it was meant to be assignable free from such counter- 
 claims (/). But a mere assignment of a specifically enforcible 
 contract entitles the assignee, (after notifying (g) the 
 promisor,) to enforce it (Ji) without (it would seem) being 
 liable to any counterclaim arising from transactions between 
 
 (i) If there are conflicting claims, the party liable may pay the amoiint 
 recoverable into Court under the Trustee Relief Act, (£) unless the assignment 
 was made before the coming into operation of the Judicature Act (J). 
 
 («) Fairlie v. Denton, 8 B. & C. 395. Pooky, 3 D. G. J. 294. 
 
 (6) 36 & 37 Vic, c. 66, s. 40 (6). 
 
 (c) Watson v. Mid Wales By. Co., L. 
 R. 2 C P. 593. 
 
 (c/) Brice v. Bannister, L. R. 3 Q. B. 
 D. 569 (where the Lords Justices dif- 
 fered as to whether the payment which 
 was pleaded as a defence was made 
 under an equity arising out of the ori- 
 ginal transaction, and therefore prior 
 to the notice, or not); Young v. Kitchen, 
 L. R. 3 Ex. D. 127; Atkenaum $c. v. 
 
 0) Brunton's Case, L. R. 19 Eq. 302; 
 Exp. Universal L. A. Co., L. R. 10 Eq. 
 458. 
 
 (J) See below p. 156 n(/); Re 
 Agra Src. Bk. exp. Asiatic Bg. Co.. L. R. 
 2 Ch. 391. 
 
 O) Shaw v. Foster, L. R. 5 H.L.321. 
 
 (h) Said Shaw v. Foster. 
 
 (t) 36 & 37 Vic, c. 66, s. 40 (6). 
 
 (j) Matthew v. Gl. Northern A. Co., 
 L. R. 9 C. D. 80.
 
 WHO MAY SUE ON A CONTRACT, &C. 
 
 155 
 
 the promisor and promisee since the date of the assign- 
 ment, even though they have arisen from transactions 
 occurring before the notice, because the assignee of a 
 specifically enforcible contract is, as against the original 
 contracting parties and those deriving under them (a), 
 treated as assignee of the property itself (b), and may there-' 
 fore (as against any counterclaims arising since his assign- 
 ment) take advantage of the rule qui prior est tempore potior 
 est in jure. 
 
 But it is only as against the original contracting parties 
 and those deriving under them that a contract transfers the 
 property. One consequence of this is that an assignee of 
 a contract cannot before obtaining his conveyance (c), 
 (though he may afterwards (d),) set aside a disposition or 
 charge, which, before the date of his contract, had been 
 obtained by fraud or unfair dealing from his vendor. 
 Another is that persons who claim in derogation of the 
 vendor's estate are not proper parties to a specific-perform- 
 ance action by a purchaser, but their claims must be inves- 
 tigated on the reference as to title (e). This latter suggests 
 a question which is often important as regards the paying 
 off of mortgages. If A contracts to sell an estate to B but 
 continues entitled to his lien for unpaid purchase money, 
 or if A obtains a mortgage from B, and if (in either case) 
 B afterwards deals with the estate in favor of C, can C 
 enforce his rights against A. or can he merely, in B's name, 
 pay off A, and then proceed against B and require him to 
 get in A's estate by calling upon A for a conveyance or by 
 taking proceedings against A for specific performance or 
 for redemption? The cases (/) are difficult to explain, but 
 
 (a) Ante p. 76 (6). 
 
 (6) Holroyd v. Marshall, 10 H. L. C. 
 191 ; Seton v. Slade, 2 W. T. L. C. (4th 
 Ed.) 513. 
 
 (c) De Hoghlon v. Money, L. R. 2 Ch. 
 164, where however there was a fur- 
 ther corroborative circumstance. [337. 
 
 (d) Dickenson v. Bnrrell, L. R. 1 Eq. 
 
 (e) Tasker v. Small, 3 M. & Cr. 63; 
 
 When entitled 
 to proceed 
 against the 
 promisor 
 directly, and 
 when merely 
 through the 
 promisee who 
 made the 
 assignment. 
 
 Harry v. Davey, L. R. 2 C. D. 721. " 
 
 (f) Dyer v. Pulteney, Barnadiston 
 Ch. 160; Tasker v. Small, 3 M. & Cr. 
 63; Pearce v. Morris, L. R. 5 Ch. 227; 
 dictum in Aberaman I. Co. v. Wickens, 
 L. R. 4 Ch. 101 ; Femcich v. Bulman, L. 
 R. 9 Eq. 165; Harry v. Davey, L. R. 2 
 C. D. 721 ; and especially Shaw v. Fos- 
 ter, L. R. 5 H. L. 321.
 
 15G 
 
 WHO MAY SUE ON A CONTRACT, &C. 
 
 3. By Nego- 
 tiation of Bill, 
 Note, Scrip, 
 Debenture, &c. 
 
 Is not subject 
 to counter 
 claims. 
 
 I think that when B has assigned the benefit of his contract 
 to C per verba de proesenti, (or, what is the same thing, has 
 purported, in making his sub-contract with C, to act as 
 A's agent, stipulating that A shall convey (a)), C, (after 
 notifying these facts to A), will be considered as standing 
 in B's place, and so be entitled to proceed directly against 
 A ; but that when B has merely contracted with C per verba 
 de futuro, then, as A is not in privity with this contract, C 
 will be restricted to his remedy against B, especially if 
 some condition (such as proof of the sufficiency of the title) 
 is yet to be fulfilled before C can be held bound. 
 
 The indorsee of a Bill of Exchange (b) or promissory 
 note (c), or of such scrip as, by the custom of the stock 
 market, can pass by indorsement (d), and the assignee 
 (though only under an oral disposition) of securities which 
 pass by delivery (d), and the assignee of any chose in action 
 the purpose of which could not be answered unless it were 
 assignable free from the counterclaims of the party liable 
 (e) (i), is entitled to still greater privileges, for he is 
 regarded as not merely an assignee of the right of action, 
 but a transferee of the legal estate therein, and is conse- 
 quently free from all counter-claims of which he, when 
 purchasing, had no notice, even though they may have 
 arisen before the date of the transfer to him. 
 
 (i) In the case referred to the assignee is not in name, but yet is practically, 
 assignee of the legal estate. In other words, such a contract is negotiable. Only 
 the counter-claims of the party liable came in question in the case cited (e) 
 but the reasons given for the decision -would entitle a purchaser without notice 
 to priority over the rights of intermediate holders also. 
 
 (a)Dyerv.Pulteney, Barnad.Ch. 160. (d) Goodwin v. Robarts, L. R. 1 Ap. 
 
 (6) Callow v. Lawrence, 3 M. & S. 95; 476. 
 
 Heydon v. Thomson, 1 A. & E. 210. (e) Re Agra t)-c. Bk. exp. Asiatic Bg. 
 
 (c) 3 & 4 Ann. c. 8 ; 9 Geo. IV., c. 24. Co. L. R. 2 Ch. 39 1.
 
 ( 157 ) 
 
 CHAPTER XVIII. 
 
 WHO MAY SUE ON A CONTRACT AS DERIVING TITLE TO AN 
 ESTATE TO WHICH IT IS INCIDENT. 
 
 runs may 
 recover Dam- 
 ages for breach 
 of it. 
 
 When he 
 obtains Legal 
 Estate. 
 
 A disposition of the legal estate in property to which the Transferee of 
 . . . estate with 
 
 performance of an existing promise would be beneficial (a) which a 
 
 entitles the disponee to recover damages for breach of it, ( 
 whether such breach occur before (b) or after such disposi- 
 tion, and whether the promise was, (on the occasion of a 
 Lease of the premises to which it is beneficial) made by the 
 lessee with the lessor (c) or by the lessor with the lessee (d), 
 or was, (on a grant of a terminable (e), or no doubt a 
 perpetual, Profit or Easement out of such property) made 
 by the grantee with the grantor (e), or, (on the grant of such 
 property being itself a Profit or Easement,) by the grantor 
 with the grantee (/), or was, (on a Disposition by one of 
 his whole estate in the property to which it is beneficial,) 
 entered into by him with the disponee (g) (whether the 
 interest so disposed of was leasehold (h) or not); and it 
 passes equally to the disponee of part (?) as to the disponee 
 of the whole of the property, and to a disponee of a share 
 as to a disponee of the entirety (j), and equally (save as 
 below stated (k)) to a Lessee (/) as to a disponee of the 
 
 (a) As to what is so deemed see 
 Thomas v. Hayward, L. R. 4 Ex. 311; 
 Easterly v. Sampson, 6 Bing. 644; and 
 that a right of preemption is not, Colle- 
 sonv.Lettsom, 6 Tau. 224; below p. 159 
 n(6). 
 
 (6) At least in case of a covenant by 
 the lessee with the lessor, Glover v. 
 Cope, 4 Mod. 81. 
 
 (r) 32 H. VIII, c. 34; Twynam v. 
 Pickard, 2 B. & Aid. 105. 
 
 (d) Jourdain v. Wilson, 4 B. & Aid. 266. 
 
 (e) Hooper v. Clark, L. R. 2 Q. B. 200. 
 
 (f) Implied Hooper v. Clark, L. R. 2 
 Q. B. 200. 
 
 (<7) Middlemorev. Goodale, Cro. Car. 503. 
 
 (ft) Lewis v. Campbell, 3 B. & Aid. 392. 
 
 Qi) Twynam v. Pickard, 2 B. & Aid. 
 105. 
 
 (J) Simpson v. Clayton, 4 Bing. N. C. 
 780-1. 
 
 (fr) Below p. 1 58 n(i). 
 
 (/) Decided in Taite v. Gosling, L. J. 
 48 Ch. 397 as to specific performance, 
 but on the ground that the same 
 would hold in an action for damages. 
 The fact that the covenant was ex- 
 pressly made with "assigns" was 
 somewhat relied on but does not seem 
 essential.
 
 158 
 
 WHO MAY SUE ON A CONTRACT, &C. 
 
 When he 
 merely obtains 
 beneficial 
 estate. 
 
 After prema- 
 ture termina- 
 tion of the 
 estate. 
 
 whole of the disponor's estate, and whether the disposition 
 with which it passes be Testamentary (a) or -not, and it 
 passes equally on a transfer of a legal estate by act of law (&) 
 as on a Disposition of it, though, as we shall see, it must 
 have been originally entered into on a disposition. But it is 
 essential that the property to be benefitted be a tenement, 
 (or in case of a stipulation contained in a bill of lading the 
 cargo which is the subject thereof (d)), and (as regards a 
 tenement) that the promise have been made by deed (e), 
 and made on a Disposition of the Legal estate from the 
 covenantor to the covenantee (/) or from the covenantee 
 to the covenantor and not merely on a disposition by the 
 covenantee's mortgagee (g), nor on a disposition by one of 
 the parties to a third person to the use of the other (h) because 
 the transfer of the Legal estate is under such a disposition 
 effected by the act of the Law («'). And the benefit of the 
 covenant will not pass to a sub-lessee (i) as against the 
 original lessor; and I apprehend that all the circumstances 
 which are necessary to transfer the right to specifically 
 enforce a covenant are a fortiori necessary to transfer the 
 right to recover damages for breach of it. 
 
 A disposition of a mere Beneficial interest in the premises 
 would, I apprehend, entitle the disponee to sue, (either in 
 his own or his disponor's name,) in the same cases in 
 which the latter would be entitled so to do (j). 
 
 The termination of the estate or interest to which the 
 covenant is incident (occuring by surrender or otherwise 
 
 (i) That is if the sub-lessor reserve an intermediate reversion: but if he 
 demise the whole of his interest, (though he reserve a rent and covenants), the 
 benefit (like the burthen) of his covenants will pass to his demisee (k). 
 
 (a) Vyvyan v. Arthur, 1 B. Sc C. 410. Bing. N. C. 412. 
 
 (b) Verishy v. Cmlance, 4 T. R. 75; 
 anil as to Conditions, Co. Litt. 2l5a-b. 
 
 (c) Miines v. Branch, 5 Mau.& S. 411. 
 
 (d) 18 & 19 Vic, c. 111. 
 
 (e) See Standen v. Christmas, 10 Q. 
 B. 135. 
 
 (/) As in Kingdon v. Nottle, 4 Mau. 
 & S. 53. See Whilton v. Peacock, 2 
 
 (g) Webb v. Russell, 3 T. R. 393; 
 Stokes v. Russell, 3 T. R. 678. 
 
 (/;) Miines v. Branch, 5 Mau.& S.411. 
 
 («) 27 H. VIII, c. 10. 
 
 ( j) Accordingly Riddell v. Riddell, 7 
 Sim. 529. 
 
 (k) Beardman v. Wilson, L. R. 4 C. P. 
 57; Palmer v. Edwards, 1 Dougl. 87n.
 
 WHO MAY SUE ON A CONTRACT, &C. 159 
 
 independently of the terms of its creation) does not prevent 
 subsequent breaches being sued upon by the owner of the 
 next following estate or interest (a). 
 
 A disposition of property to which the performance of an Transferee of 
 
 existing promise would be beneficial (b) entitles the ^Covenant!? 1 
 
 disponee to specifically enfore it as fully as his disponor incident^ may 
 
 enforce it 
 
 might have done, even though the circumstances techni- specifically. 
 cally necessary to entitle him to recover damages be Geuerall y- 
 absent, and I apprehend that circumstances which are 
 insufficent to disentitle him to recover damages must a 
 fortiori be insufficient to disentitle him to enforce specifi- 
 cally (c). And he is equally entitled though the promise 
 was contained not in the conveyance itself, but in a prelim- 
 inary deed by which the vendor covenanted to convey (d), 
 and was intended to benefit, not the property in its existing 
 state, but a building intended to be erected on it (e), and 
 though the performance of the promise involved the doing 
 of an act on the promissee's land (/), and though no 
 substantial damage arose from the breach (g), and though 
 the promisee has omitted to object to previous breaches of 
 an unimportant character (h), and though the promise was 
 entered into on a disposition of the beneficial estate only 
 (i), and though the person who is enforcing it has the 
 beneficial estate only (as when the legal is in his mortgagee 
 (i) ), and though the plaintiff be sub-lessee and the 
 promisor be head-lessor of the dominant tenement (j). But 
 it seems to be essential that the property to which the 
 
 (a) 8 & 9 Vic, c. 106, s. 9. (f) Cooke v. Chilcott, L. R. 3 C. D. 
 
 (6) As to what is deemed beneficial 699 / 6. 
 see Ante p. 157 n(a), and Cook v. Chil- (#) Western v. Mc. Dermott, L. R. 2 
 
 cott, L. R. 3 C. D. 695-7, 700-2; that Ch. 72; Leech v. Schweder, L. R. 9 Ch. 
 
 it is necessary it should be beneficial, 463; Ld. Manners v. Johnson, L. R. 1 C. 
 
 but not necessary that it should be D. 680. 
 
 stated to be so, Mc. Lean v. Mc. Kay, (h) Western v. Mc. Dermott. 
 L. R. 5 P. C. 335. (i) Fairclough v. Marshall, L. R. 4 
 
 (c) Ante p. 157-8. Ex. D. 37. 
 
 (d) Cole v. Sims, 5 D. G. M. G. 1. (j) Accordingly Leech v. Schweder, 
 
 (e) Cookev. Chilcott, L.R.3C.D.694. L. R. 9 Ch. 463.
 
 160 WHO MAY SUE ON A CONTRACT, &C. 
 
 observance of the promise is beneficial should be a tene- 
 ment, and that the promise should have been entered into 
 on some sale (or other disposition) of the estate (i), made 
 either by the promisee to the promisor {a) or by the 
 promisor to the promisee (&), and it is essential (c) that 
 either the promisor should have intended the promisee to 
 understand that the assigns of the latter were to have the 
 benefit of the promise (c), or that the latter should (when 
 he disposes of the dominant tenement to the person who 
 afterwards seeks to enforce the promise) either assign the 
 benefit of the promise also to him (d), or contract with him 
 that he shall have the benefit of it (d) ; and it is not quite 
 clear that the promisor's intention is sufficient, unless, on 
 the subsequent disposition, the promise be brought to the 
 knowledge of the disponee (e). The intention of the 
 promisor, however, need not be expressed, but will be 
 CAstoB 'ld'ne implied from circumstances, and in particular from the 
 Plots, &c.) circumstance that the purchase on the occasion of which 
 the promise was made was one of several made in pursu- 
 ance of a scheme, the carrying out of which was meant to 
 be ensured by them, (as for example, a purchase of one of 
 several building lots (/)) : it will also, no doubt, be implied 
 from the circumstance that the covenant was entered into 
 with the covenantee and his "assigns," unless the covenant 
 be contained in a lease so that the word "assigns" may be 
 understood to referring to the assigns of the reversion 
 rather than to those of the neighbouring land (g), but even 
 
 (i) Qu. This circumstance is not necessary to the incidence of the burthen 
 
 of specifically performing the covenant as we shall see below. 
 
 (a) As in Fairclough v. Marshall, L. this Contract appears on the Convey- 
 
 R. 4 Ex. D. 37. ance. 
 
 (6) As in Mc. Lean v. Mc. Kay, L. (e) Master v. Hansard, L. R. 4 C. D. 
 
 R. 5 P. C. 335. 722. 
 
 (c) Renals v. Cowlishaw, L. R. 9 C. (f) Cooke v. Chilcott, L. R. 3 C D. 
 D. 125; Master v. Hansard, L. R. 4 C. 694; said Renals v. Cowlishaw, L. R. 9 
 D.718; Keatesv. Lyon.L. R. 4 Ch. 218. CD. 129. 
 
 (d) Said (in Renals v. Cowlishaw, L. (g) Masters v. Mansard, L. R. 4 C. 
 R. 9 C. D. 130) to he sufficient when D. 718.
 
 WHO MAY SUE ON A CONTRACT, &C. 161 
 
 when the covenant is not contained in a lease the word 
 "assigns" will not be understood as embracing a subsequent 
 disponee of part of the dominant tenement (a). An assign- 
 ment of the covenant, or a contract to give the benefit of it 
 to the subsequent purchaser, may also be implied from 
 circumstances, and in particular from those alluded to as 
 sufficient to indicate the requisite intention on the part of 
 the original covenantor (b). But it is doubtful whether, on 
 a sale &c. of part, even an express assignment of the cove- 
 nant is sufficient, unless an intention on the part of the 
 original covenantor appears by the conveyance containing 
 the covenant to have existed when he entered into it that 
 a disponee of part (or of the particular part in question) 
 should have the benefit of it (c). However the covenantor 
 will become bound to an intending purchaser of the domi- 
 nant tenement (or of part of it) by representing himself to 
 the latter as bound, and thus inducing him to purchase (d). 
 
 On the other hand, a contract by a vendor with his ^^q cove . 
 
 purchaser that the latter shall be entitled to the benefit of nant made after 
 
 • he became 
 
 any covenant (beneficial to the property then being sold) SU ch transferee 
 
 which the vendor may afterwards obtain from a subsequent 
 purchaser of other property, will, as soon as such subse- 
 quent covenant is obtained, vest the benefical interest in it 
 in such previous purchaser, at least if circumstances exist 
 showing an intention to that effect on the part of the subse- 
 quent covenantor. And both the contract by the vendor 
 with the former purchaser, and the intention by the subse- 
 quent covenantor, will be implied from the circumstance ca s to Building- 
 that the former purchase and the purchase which the Plots, &c.) 
 covenant accompanied were two of several made in pur- 
 suance of a scheme, the carrying out of which was meant 
 to be ensured by the covenant, as for example, a purchase 
 of building lots (e). 
 
 (a) Renals v. Cowlishaw, L. R. 9 C. preted in Renals v. Cowlishaw, L. R. 9 
 
 D. 125. C. D. 130. 
 
 ' (6) Id. Manners v. Johnson, L. R. 1 (d) Cooke v Chilcott, L.R. 3C. D.7Q3 
 
 C. D. 681 ; sd. Renals v. Cowlishaw, L. (« ) Western v. Mc. Dermott, L. R. 2 
 
 R. 9 C. D. 129. Cli. 72; said Renals v. Cowlishaw, L. R. 
 
 (c) p. Bramweix L. J., Master v. 9 C. D. 129. 
 Hansard, L. R. 4 C. D. 724, as inter- 
 
 21
 
 ( 162 ) 
 
 Third person 
 cannot sue on 
 a contract, 
 though made 
 for his benent. 
 
 (Amount 
 recoverable for 
 breach of it). 
 
 CHAPTER XIX. 
 
 WHO MAY SUE ON A CONTRACT BY WHICH HE WAS INTENDED 
 TO BE BENEFITED, THOUGH HE BE A STRANGER TO IT. 
 
 A third person cannot, in general, specifically enforce a 
 contract. Much less can he recover damages for breach 
 of it (a), though it expressly declare that he may sue on it 
 (b), and be entered into for his benefit (&), in consideration 
 of his marrying the daughter of the promisor (b), and 
 though he himself be the son of the promisee (b) ; unless it 
 has been assigned to him (in which case he, of course, 
 stands in the same position as any other assignee) ; and it 
 may be that, if a contract were accompanied by the formal- 
 ities and other circumstances prescribed by law (c) for the 
 assignment of a chose in action and were expressed to be 
 made for the benefit of the person in question, it would be 
 treated as embodying an assignment to him. 
 
 The amount of damages recoverable for breach of a 
 promise beneficial only to a third person, is the sum suffi- 
 cient to compensate for the injury suffered by the original 
 promisee, (that is nominal damages only (d)), unless the 
 circumstances under which the promise was originally 
 made entitled the third person to require the promisee to 
 sue on his behalf, in which case the damages suffered by 
 the third person may be recovered (e). A mere assignment 
 of the right of action to the third person cannot, on prin- 
 ciple, entitle him to recover the damages he has suffered, 
 because res inter alios atta nihil operatur. 
 
 (a) Tweddley. A tkinson, 1 B. & S. S93 ; 37 & 38 Vic, c. 83, s. 2. 
 Eleyv. Positiveifc. Co., L.R. lEx.D.88. (d) West v. Houghton, L. R. 4 C. P. 
 
 (6) Tweddle v. Atkinson. D. 197. 
 (r) 36 & 37 Vic, C. 66, s. 25 (6); (e) Robertson v, Wait, 8 Ex. 299.
 
 WHO MAV SUE ON A CONTRACT, &C. 
 
 163 
 
 It follows from the first of the above principles that a 
 Rescission by the promisor and promisee (a), or a Release 
 by the latter, or a Bequest (b) by him to the former of all 
 his property (which necessarily includes the right of action 
 in question), will put an end to any chance which the 
 third person might have had of deriving advantage from 
 the promise, unless the third person had acquired a right 
 to require the promisee to enforce it. 
 
 It is a question whether an event which makes rescis- 
 sion impossible, or which vests the right to concur in 
 rescinding in some one to whom the performance of the 
 promise is immaterial, (such an event for example as the 
 death of the promisee,) will not vest in the third person a 
 right to specifically enforce the promise. That it has this 
 effect seems to me to be affirmed by the decision of the 
 House of Lords, in a case (c) in which T, in consideration 
 of his intended marriage and also (though perhaps not 
 expressly) in consideration of his father concurring in the 
 articles, covenanted with a trustee, that he (T) would pur- 
 chase an estate, and settle it on trusts for himself and his 
 intended wife and issue, and, (these failing,) for his brother 
 G, (on whose behalf their father was presumed to have 
 stipulated that T should be not merely at liberty but bound 
 to make the settlement). G was not privy to the articles, 
 yet after T's death he was held entitled to enforce them. 
 The only corroborative circumstance was, that one of T's 
 reasons for making the covenants in question was to make 
 amends for his neglect of a void limitation contained in a 
 will under which he derived some property subject to the 
 void limitation, but this circumstance seems immaterial. 
 In another case (d), precisely similar except that both 
 contracting parties were dead and that the corroborative 
 
 (a) Hill v. Gomm, 5 M. & Cr. 250, in and see my Essay on " Marriage Arti- 
 
 which case the rescission was implicit, cles and Privity of Contract" in 3 Law 
 
 (6) Culyear v. Cs. Musgrove, 2 Ke. 81. Mag. (4th Series) 468 (August 1878). 
 (c) Vernon v. Vernon, 1 B. P. C. 2G7, (<0 Osgood v. Strode., 2 P. W. 245. 
 
 Third persons 
 cannot prevent 
 Rescission &c. 
 by the Parties. 
 
 Third person 
 may sue after 
 Rescission has 
 become 
 impossible.
 
 164 
 
 WHO MAY SUE ON A CONTRACT, &C. 
 
 At least if the 
 promisor was 
 not merely 
 entitled, but 
 
 hound to the 
 
 promisee, to 
 confer the 
 benefit on the 
 third person. 
 
 And certainly 
 if the Contract 
 was made in 
 consideration 
 of a marriage 
 to settle 
 property on 
 the issue 
 thereof of ' 
 Whom the 
 third person 
 was one. 
 
 circumstance above referred to was absent, two successive 
 Chancellors arrived at a similar conclusion. If the fathers 
 of the third persons had not been parties to the articles in 
 these cases no presumption that anyone was stipulating on 
 their behalf could have been raised, and therefore, in the 
 absence of proof that someone had done so, the contract 
 must have been construed as meaning that the promisor 
 should be entitled (not that he should be bound) to insert in 
 the proposed settlement the limitations in favour of the 
 third person (a). In a recent case, in which a contract by 
 a woman (in consideration of her second marriage) to 
 settle property for her own separate use for life and after- 
 wards for the benefit of her children by her first marriage 
 was presumed (contrary to Sutton v. Chetwynd and to the 
 obvious fact) to have been stipulated for by her husband, 
 and was therefore construed as meaning that she was to be 
 bound (not merely entitled) to make the settlement on those 
 children, it was also held that, after her death, those chil- 
 dren might enforce the contract (b), but it is fair to mention 
 that the Court decided the case on the ground that there 
 was something peculiar in the relationship of these children, 
 — not on the broad ground that any third person may 
 enforce such a contract after the death of one of the 
 parties. 
 
 However, even assuming that this exception to the prin- 
 ciple of Privity of Contract is not of general application, it 
 unquestionably holds in the following instances. A contract 
 made, in consideration of a marriage, to settle property on 
 
 (a) Sutton v. Cheticynd, Sugd. H. L. 
 153, where Ld. St. Leonards, (though 
 himself thinking that the promisor was 
 meant to be bound,') seems to have 
 thought that the House was of a con- 
 trary opinion. Indeed if they were 
 not the case would be irreconcilable 
 with Vernon v. Vernon, which was 
 cited in Sutton v. Chetwynd. 
 
 (6) Gale v. Gale, L. R. 6 C. D. 144, 
 
 where the Judge professed to follow 
 Newstead v. Searte, 1 Atk. 265, (which 
 I have shewn in 3 Law Mag. 469 to 
 have been probably a case of Disposi- 
 tion, not of Contract, and a case in 
 which, accordingly, a consideration 
 was only held necessary for the purpose 
 of preventing a subsequent purchaser 
 from obtaining priority).
 
 WHO MAY SUE ON A CONTRACT, &C. 
 
 165 
 
 the issue of that marriage, may be enforced by them, 
 probably because by the marriage the wife passes under 
 disability, and so becomes incapable of rescinding the 
 contract, (and much more may it be enforced after the 
 death of one of the parties to the contract (a)). And a 
 promise (i) that, in consideration of the promisee leaving 
 specified property by his will (b) to the promisor, or per- 
 mitting it to descend (c) to or devolve upon him, the prom- 
 isor will hold it wholly {d) or partly (e) for the benefit of a 
 third person (n), maybe enforced by the latter after the 
 death of the promisee. And a contract by a debtor with 
 his surety, entitling the latter, by sale of a specified subject, 
 which the debtor then mortgages to or pledges with him, 
 to satisfy the liability for which he is surety, (being a 
 contract by the performance of which the creditor would 
 be benefited,) may, if the principal and surety be- 
 come bankrupt (/) or die (g) insolvent so that the 
 contract cannot be rescinded (m), be taken advantage 
 
 And if the 
 promise was 
 fraudulently 
 made by an 
 expectant heir, 
 &c. 
 
 And under the 
 Doctrine in 
 exp. Waring. 
 
 (i) Mere silence, (on the part of the devisee, or legatee, or heir apparent or 
 presumptive, or distributee,) when the intending testator or intestate communi- 
 cates his intentions to him, is held to imply a promise within this rule (ft); and 
 even a married woman (t ) seems to be bound by such a promise, because the 
 breach of such a promise is held to he a fraud. 
 
 (n) In this case the third person may not only enforce the Contract, but 
 recover damages for breach of it 0'). 
 
 (in) If the surety alone were to become insolvent it would still be in the 
 principal's power to redeem, and if he did the Contract would stand rescinded. 
 Consequently, on the Bankruptcy of the surety alone the rule does not apply 
 (fc). If only the principal become bankrupt, the surety may, of course, release 
 the pledge; but if he do not he must apply it for the benefit of the creditor. In 
 the cases which have arisen, the debt and suretyship arose on Bills of Exchange, 
 but this circumstance cannot be essential. 
 
 (a) Walford v. Gray, 13 W. R. 761. 
 
 (6) Irvine v. Sullivan, L. R. 8 Eq. 673; 
 Nor r is v. Frazer, L. R. 15 Eq. 318. 
 
 (c) Said in Mc. Cormick v. Grogan, 
 L. R. 4 H. L. 88, in which case this 
 doctrine ~is fully acknowledged, al- 
 though no promise was considered to 
 have been there made. 
 
 (rf) Harris v. Borwill, Gilb. Eq. 11. 
 
 (e) iV orris v. Frazer, L. R. 15 Eq.318. 
 
 (f) Exp. Waring, 13 Vez. 345; Bar- 
 ned's Bg. Co., L. R. 10 Ch. 198, affg. S. 
 
 C. 19 Eq. 1. 
 
 (g ) Powles v. Hargreaves, 3 D. G. M. 
 G. 430. 
 
 (ft) Springeli v. Jennings, L.R. 10 Eq. 
 418; slightly qualified by Mc. Cormick 
 v. Grogan, L. R. 4 H. L. 82 (especially 
 p. 99). 
 
 (i) Norrisv. Frazer, L.R. 15 Eq.318. 
 
 (j) Dulton v. Poole, T. Raym. 302; 
 Rockwood^s Case, Cro. El. 164. 
 
 (£) Banner v. Johnstone, L. R. 4 H. 
 L. 157.
 
 166 
 
 WHO MAY SUE ON A CONTRACT, &C. 
 
 Reason for 
 thus favouring 
 a third person. 
 
 One from 
 whom Consid- 
 eration moved 
 must be 
 plaintiff. 
 
 Except 
 perhaps on 
 Purchase in 
 the name of 
 Another. 
 
 of by the creditor. Nor do I see any reason for restricting 
 the exception to these particular instances. The chief 
 reason for allowing it at all, (namely, that if the stridt rule 
 were followed the option of enforcing the contract would 
 rest with the promisee's representatives who have no 
 interest in it, and that the promisee cannot have intended 
 this to be so but must have meant that if he should die 
 without rescinding the contract the benefit of it should pass, 
 as if by a testamentary disposition, to the person whom 
 performance of it would benefit,) applies equally in every 
 case. 
 
 From the rule that a person who is not (and does not 
 derive under) the promisee cannot in general sue though 
 he be the person on whose behalf the contract was entered 
 into, our Courts deduce this further rule — that a person 
 other than he who has rendered or bound himself to 
 render the consideration for such a promise as requires 
 consideration cannot sue upon it. For example — if A and 
 B contract that, for a consideration to be rendered by C, 
 B shall do some specified thing, then, although the prom- 
 ise was made to A at his request, yet he cannot sue for 
 breach of it (a), unless he guarantee that C shall render the 
 consideration, (in which case the guarantee constitutes a 
 consideration moving from A because it binds him to pay 
 damages in the event of C's neglect or refusal (b).) But the 
 circumstances concerning which I have tried to show that 
 they create an exception to the rule which prohibits a third 
 person from suing on a contract appear also to create an 
 exception to the rule now under consideration. For, when 
 a contract for the purchase of property is made by one who 
 pays a consideration, for the benefit and in the name of one 
 who does not, the vendor is entitled to enforce the contract, 
 
 (a) Evans v. Hooper, L. R. 1 C. P. been made to the plaintiff, and even in 
 
 D. 45; but in Price v. Easton, 4 B. & Bourne v. Mason, 1 Vent., it is not clear 
 
 Ad. 433, and in Crow v. Rogers, 1 Stra. that it was so. 
 
 592 the promise does not seem to have (6) See Davie v. Morgan, 4 B. & C. 8.
 
 WHO MAY SUE ON A CONTRACT, &C. 167 
 
 and yet is not bound to convey it seems (at least after the 
 death of the party who pays the consideration), to any but 
 the party intended to be benefited (a) ; but the cases do not 
 go so far as to say whether the latter could himself enforce 
 the contract. If not, it follows that the purchaser's heir 
 could authorize the vendor to retain the estate. However 
 if the third person signs the contract he thereby guarantees 
 the payment of the consideration, and is therefore entitled 
 to enforce it (b). 
 
 (a) Drew v. Martin, 2 H. & M. 132; (6) Skidmore v. Bradford, L. R. 8 Eq. 
 and see Redington v. Redington, 3 Ridg. 134. 
 P. C. 106.
 
 ( 168 ) 
 
 CHAPTER XX. 
 
 WHO IS LIABLE ON A CONTRACT. 
 
 Who is liable 
 on a Contract 
 as being or 
 deriving 
 under the 
 Promisor. 
 Promisor 
 himself. 
 Executors &c. 
 
 Heir and 
 Devisee. 
 
 Breach of a contract of any kind (i) binds, not only the 
 promisor, but after his death his executors or adminis- 
 trators (a) (if they have assets (b) and subject to their usual 
 right to reimbursement (c) (n)), to pay damages, whether 
 the breach occurred before the death (d) or after it (e), and 
 even though the promise may concern the inheritance, (/) 
 and may have been made by deed (g), expressly binding 
 the heirs (g) and omitting expressly to bind the executors 
 (g). And a specifically enforcible contract can, of course, 
 be enforced against them if money is to be paid or personal 
 estate assigned in pursuance of it. 
 
 The breach of a promise binds the heir (h) and devisee 
 (i) of the promisor (if they have assets (_/')) to pay damages, 
 whether the breach occurred before the death or after (k) 
 it; and the creditor may either proceed against them 
 directly (I), or seek from the Court a sale (m) or mortgage 
 («) of the estates descended from or devised by the prom- 
 
 (i) I do not make any reference to contracts to perform works of skill, 
 promises to marry, &c, respecting which there are several distinctions. 
 
 (n) An Executor or Administrator who has entered into possession of pro- 
 perty which is burthened with a covenant binding on the assigns becomes liable 
 as assign, whether or not he has sufficient assets (h), but with the right (in 
 proper cases) to reimbursement. 
 
 (a) Wms'. Exors., 1590 sqq. 
 
 (6) Wms'. Exors., 1804. 
 
 (c) Ante p. 37. 
 
 (rf) Tremeere v. Morison, 1 Bing. N. 
 C. 89; Sleap v. Newman, 12 C. B. N. 
 S. 1 1 6 •, qualified as to shares in a Com- 
 pany by Ness v. Armstrong, 4 Ex. 21. 
 
 (e) Jervis v. Woljerstan, L. R. 18 Eq. 
 18. 
 
 (f) Wms'. Exors., 1615-16. 
 
 (jr) Moneypenny v. Moneypenny, 9 H. 
 L. C. 114. 
 
 (A) Wms'. Exors., 1559. 
 
 (i) 11 Geo. IV & Wm. IV, c. 47; 
 3 & 4 Wm. IV, c. 104. 
 
 (j) 11 Geo. IV & 1 Wm. IV, c. 47, 
 s. 6, 7, 8; 3 & 4 Wm. IV, c. 104. 
 
 (jfc) Coope v. Cresswell, L. R. 2 Ch. 112. 
 
 (0 Wms'. Exors., 1559; 11 Geo. IV 
 & 1 Wm. IV, c. 47. 
 
 (m) 1 1 Geo. IV & 1 Wm. IV, c. 47, s. 
 2, 9; 3 & 4, Wm. IV, c 104; Pimm v. 
 Insall, 1 Macn. & G. 458, 459. 
 
 (») 2 & 3 Vic, c. 60.
 
 WHO IS LIABLE ON A CONTRACT. 
 
 169 
 
 isor; but he can only do the former if his claim is founded 
 on a deed (a) professing to bind the heirs (a), and even this 
 liability is restricted to the value (b) of the assets descended 
 or devised to the particular heir or devisee who is proceeded 
 against. Any disposition made by the heir or devisee 
 exonerates the interest so disposed of (c), even though such 
 disposition only affects the beneficial estate and leaves the 
 legal one in the heir or devisee (d), but only if the dispo- 
 sition be made in good faith (e), and for valuable consider- 
 ation (/), before the commencement of an action by the 
 creditor to realise his demand (g). 
 
 Whether one who claims to be entitled (under the 
 promisee) to the benefit of a specifically enforcible contract 
 be bound to the promisor to render the consideration and 
 perform the other stipulations which were binding on the 
 promisee depends on the same grounds as the answer to 
 the question whether he is entitled to enforce the promise 
 against the promisor. If, therefore, the opinion expressed 
 above (h) be correct, he is thus bound when the promisee 
 has assigned to him the benefit of the contract ; but, when 
 the promisee has merely contracted with him, is liable at the 
 suit of the promisee only, while the promisor can compel 
 the promisee to take any proceedings against him which 
 may be necessary. 
 
 One who acquires property under a party who has agreed 
 to dispose of it as the consideration for a specifically enfor- 
 cible contract entered into with him, is, of course, subject 
 to the contract (i), unless he acquires the property for 
 valuable consideration without notice of the contract (/). 
 
 (But estates 
 freed by 
 Alienation). 
 
 Assignee if 
 the contract 
 be enforcible. 
 In general. 
 
 Contract to 
 purchase, &c, 
 property. 
 
 (a) Wms\ Exors , 1559; 11 Geo. IV 
 & 1 Wm. IV, c. 47. 
 
 (6) 11 Geo. IV & 1 Wm. IV, c. 47, 
 s. 7. 
 
 (c) 11 Geo. IV & 1 Wm. IV, c. 47, 
 s. 6, 8. 
 
 (d) British M. I. Co. v. Smart, L. R. 
 10 Ch. 567. [s. 6, 8. 
 
 (e) 11 Geo. IV & 1 Wm. IV, c. 47, 
 
 (/) Said Dilkes v. Broadmead, 2 Giff. 
 116; Marriage is sufficient, ib. 
 
 (</) Said to be probably necessary, 
 Pimm v. Insall, 1 Macn. & G. 458. 
 
 (ft) Ante p. 154(A), 156(a). 
 
 (i) Dart 711-12. 
 
 (j) See the Chapters on Priorities 
 and Pitcher v. Rawlins, L. R. 7 Ch. 259. 
 
 22
 
 170 
 
 WHO IS LIABLE ON A CONTRACT. 
 
 Who is liable 
 on a Contract 
 as deriving 
 title to an 
 estate on 
 which it is 
 Burthensome. 
 Transferee of 
 estate with 
 which cove- 
 nant "runs" 
 must pay 
 Damages for 
 the breach of it. 
 (Rule). 
 
 The acquisition of the legal estate in property to which 
 the performance of an existing promise would be burthen- 
 some (a), or in property which has been acquired in 
 consideration of a promise to pay a continuing consider- 
 ation (such as rent (b) ) for it, binds the party acquiring it 
 to pay damages for a breach, occurring after (c) such 
 acquisition and before he has assigned over (d) (i) ; whether 
 the promise was (on a lease of the premises to which it is 
 burthensome) made by the lessee with the lessor (e) (n), or by 
 the lessor with the lessee (/) ; or was (on the grant of a profit 
 in prender or easement out of such premises for a termin- 
 able (g) period,) made by the grantee with the grantor (g), 
 or by the grantor with the grantee (h) (i); or was, (on a 
 disposition of the whole estate of the disponor in the pro- 
 perty to which it is burthensome, or on the grant of a profit 
 in render or of a perpetual profit in prender or easement,) 
 entered into by the disponee with the disponor (i). And 
 the burthen attaches equally against one who acquires part 
 (J) of the premises (so far as a breach in respect of that 
 
 (i) But of course the Action need not be brought before he has assigned (k). 
 
 (11) The difference of wording between the 1st & 2nd Sections of the 32 Hen. 
 VIII, c. 34, is very noteworthy. The former gives to the assignee of the Rever- 
 sion the same remedies against the lessee and his assigns as the lessor himself 
 had; but does not give, either to them or to the lessor, any further rights against 
 the assigns of the lessee than such, (if any,) as the lessor, by judiciary law, had. 
 The latter gives to the assignee of the lessee,- and to the lessee himself, the 
 same remedies against the lessor and his assigns as the lessee previously had 
 against the lessor only. In other words, both sections make the benefit run, but 
 the latter alone extends the previous law as regards the running of the burthen. 
 
 (m) This does not hold on a grant of a profit in render, (nor probably on a 
 grant in fee of any profit &c,) for the reason stated below (/), unless something 
 be reserved to the covenantor. 
 
 (a) As to what covenants are deemed 
 burthensome see Williams v. Earle, L. 
 R. 3 Q. B. 739. [238. 
 
 (6) Williams v. Bosanquet, 1 B. & B. 
 
 (c) St. Saviours v. Smith, 1 Bl. 351. 
 
 (d) Pitcher v. Tovey, 12 Mod. 23; 
 Walker v. Reeve, 3 Doug. 19. [739. 
 
 (e) Williams v. Earle, L. R. 3 Q. B. 
 (J) 32 H. VIII, c. 34, s. 2. 
 
 (<;) Said E. Porlmore v. Bum, 1 B. 
 & C. 694. 
 
 (Ji) For it is decided by E. Porlmore 
 v. Bunn, and by Hooper v. Clark, L. R. 
 2 Q. B. 200, that such dispositions 
 are within the equity of the 32 Hen. 
 VIII, c. 34. 
 
 (j) Said (as to a disposition of the 
 property itself), in Cooke v. Chilcott, L. 
 R 3 C. D. 694. 
 
 (j) Stevenson v. Lombard, 2 Ea. 575. 
 
 (k) Harley v. King, 2 C. M. & R. 18. 
 
 CO P- 172 (c).
 
 WHO IS LIABLE ON A CONTRACT. 171 
 
 part is concerned) as against one who acquires the whole : 
 
 and equally against one who acquires the premises by act 
 
 of law, (for example a bankruptcy trustee (a) if he have 
 
 entered (b), or an executor (c) or administrator (d) if he 
 
 have entered (e) (i)), as against one who acquires them by 
 
 means of a disposition : and equally against a disponee on 
 
 Trust (/) or Mortgage (g) even before he has entered (g): 
 
 And it attaches though the covenant did not purport to 
 
 bind " assigns" (h); and though it related to a house &c. to 
 
 be afterwards built on the land demised (/), and in addition 
 
 did not purport to bind "assigns" (i) (n), unless it be on the 
 
 reversion that it was burthensome (/). 
 
 But it has been assumed in all the cases that the burthen /r , ■,.,. . - 
 
 (Conditions of 
 
 of a promise will only run if it be contained in a deed ; and Kule). 
 only if the subject of property be a tenement, except that 
 the doctrine has recently been so far extended as to make 
 promises contained in Bills of Lading run with the Cargo 
 (k). And it seems essential that the covenant should have 
 been contained in a document under which title to the 
 Legal estate in the servient tenement is derived, or which 
 is likely to be preserved with the Title Deeds of that estate, 
 because otherwise subsequent purchasers of that estate 
 would often be ignorant of the covenant, and yet would be 
 
 (l) I am here speaking of the liability of the executor or administrator as 
 assignee. In his representative capacity he is liable without having entered. 
 
 (n) A comparison of Spencer's Case with the other old authorities leads to a 
 question whether what was meant by the resolutions in the former was not, that 
 in order to make assigns liable to build a new wall &c, the covenant must state 
 that they are to build it, rather than that it must state that they are covenanted for. 
 
 (a) Exp. Dressier re Solomon, L. R. (i) Minshull v. Oakes, (where there 
 
 9 C. D. 252; Hanson v. Stevenson, 1 B. was a slight peculiarity of circum- 
 
 & A. 303, 307. stances) 2 H. & N. 793; and the cases 
 
 (6) Re Davis, L. R. 3 C. D. 463. there cited as overruling the second 
 
 (c) Tilney v. Norris, Ld. Kaym. 553. resolution in Spencer's Case, (5 Co. 16a) 
 
 (d) Keeling v. Morris, 12 Mod. 371. which latter, however, was somewhat 
 
 (e) Keursley v. Oxleij, 2 H. & C. 896. sanctioned by Easterby v. Sampson, (6 
 
 (f) Grettonv. Diggles, 4 Tau. 766. Bing. 652) and in Grey v. Cuthbertson, 
 
 (g) IVilliams v. Bosanquet, 1 B. & B. 4 Dougl. 351. 
 
 238. (j) Doughty v. Bowman, 1 1 Q. B. 444. 
 
 (ft) Windsor's Case, 5 Co. 24a. (*) 18 & 19 Vic, c. Ill, s. 1.
 
 172 WHO IS LIABLE ON A CONTRACT. 
 
 liable, conformably to a fundamental principle of English 
 law, (originating from the distinction which formerly existed 
 between law and equity,) namely, that one who is in other 
 respects bound to pay damages for breach of a covenant 
 cannot defend himself by pleading that he is a purchaser 
 without notice. Consequently, it seems essential that the 
 covenant should have been made on a disposition of the 
 Legal estate (a) by the covenantee to the covenantor (b) (i) 
 or, (when some benefit, for example a rent, is reserved to, 
 and a counterpart is retained by, the disponor,) on a depo- 
 sition of the legal estate by the covenantor to the cove- 
 nantee (b). Accordingly, it has never been decided that an 
 assignee of the servient tenement will be liable to damages 
 in any other case, and it has been decided that he will not 
 be thus liable if the covenant be to pay a rent then granted 
 (c), a decision which, if founded on the reason I here refer 
 it to, cannot extend to a covenant, made on a purchase of 
 land, to pay a rent in consideration thereof (n). To the same 
 principle are referrible the decisions that only certain kinds 
 of easements, (namely those easily discoverable by a pur- 
 chaser of the servient tenement,) can be clothed with the 
 legal estate (i), and a decision of Ld. Brougham (e), which is 
 still an authority on a very similar point, although, so far 
 as it decides that even the obligation to specifically per- 
 
 (i) The question what covenants run with the Reversion was said in one 
 case (f) to be different from the question what covenants run with the lease- 
 hold estate; but the nature of the difference was not stated, nor does it appear 
 from 1 Wins'. Sand. 24 ld. there referred to. 
 
 (n) For the assignee of a lessee is liable on such a covenant (</), and the 
 reason must be, either that the Statute (/i) renders him liable, or that the fact 
 that the rent is the consideration of the lease renders him so. The former is 
 not correct (i). Therefore the latter must be the reason. This seems to have 
 been assumed in one case (j). 
 
 (a) See W hitton v. Peacock, 2 Bing. (f) Minshullv. Oakes, 2 H.& N.793. 
 
 N. C. 412; M. Carlisle v. Manure, 8 (g) Williams v. Bosanquet, 1 B. & 
 
 Ed. 487. B. 238. 
 
 (6) See Ante p. 170, n. (i). (A) 32 Hen. VIII, c. 34. 
 
 (c) Brewster v. Kitchen, Ld. Raym.317. (0 Ante p. 170, n. (n). 
 
 (d) Ante p. 2, 3. (j) Roach v. Wadham , 6 Ea. 288. 
 
 (e) Keppel v. Bailey, 2 M. & Ke. 56.
 
 WHO IS LIABLE ON A CONTRACT. 
 
 173 
 
 form the covenant will not bind the assignee, it has been 
 overruled, because in an action for specific performance 
 the defence "of " purchaser without notice" is available. 
 And of course the transfer with which the covenant is to 
 run must be a transfer of the same estate which was origi- 
 nally burthened by it: Thus, if land be conveyed to one 
 for life and after his death to another, and only the'former 
 enter into the covenant, an assignee~of the latter cannot be 
 bound ; and if land be conveyed to the use of one until he 
 shall appoint the use to another and whenever he shall do 
 so to that other, and the former enter into the covenant 
 and then make the appointment, the appointee is on this 
 ground held not to be bound (a). 
 
 The liability to pay damages, however, does not fall on (Exceptions). 
 the assignee of a merely beneficial estate (b). And. as we 
 have seen (c), the burthen of a covenant to pay a rent- 
 charge, entered into on the grant thereof, does not run. 
 And when one whose estate is liable to a covenant makes 
 a lease for a shorter (i) period than that for which he 
 himself holds, his lessee will not be liable to it (d), — a rule 
 which is often taken advantage of in Trust-deeds and 
 Mortgages (e), which, when the settlor or mortgagor holds 
 under a lease, are often made for a day (or some days) less 
 than that .for which he holds, and, when he holds in fee 
 subject to burthensome covenants, ought to be made by a 
 lease for a long term of years. 
 
 And, on the same principle, a disposition of property to 
 which the performance of a specifically enforcible promise 
 is burthensome, binds the disponee to specifically perform 
 
 (i) This does not apply where he purports to "lease" for a term equal to his 
 own (f). 
 
 Transferee of 
 estate with 
 which cove- 
 nant "runs" 
 must perform 
 it specifically. 
 (Rule). 
 
 (a) Roach v. Wadham, 6 Ea. 288. 
 (6) M. Carlisle v. Blamire, 8 Ea.487; 
 Cox v. Bishop, 8 D G. M. G. 815. 
 
 (c) Ante p. 172 (c). 
 
 (d) Holford v. Hatch, 1 Doug. 183. 
 
 (e) 1 Pridcaux Conv. (9th Ed.) 461, 
 538; 2 Davidson Conv. (3rd Ed.) 668, 
 971. 
 
 (/) Eeardman v. Wilson, L. R. 4 C. 
 T. 57.
 
 174 WHO IS LIABLE ON A CONTRACT. 
 
 the promise, even though the circumstances technically 
 necessary to bind him to pay damages for the breach of it 
 be absent (a); and though valuable consideration was 
 rendered by him (b) ; and though he be a mere tenant from 
 year to year under an assignee of the burthened estate (c) ; 
 and though the covenant was burthensome, not on the 
 tenement in its existing state, but on buildings intended to 
 be erected on it (d); and though the covenant did not 
 profess to bind "assigns" (c); and though the performance 
 of the covenant involves the doing of acts on the land of 
 the covenantee (d) ; and perhaps even though it be not bene- 
 ficial to any dominant tenement (i) ; and though the cove- 
 nant was not made on the occasion of a disposition of either 
 (e) the dominant or the servient tenement; much more 
 when the only objection is that the deed by. which it was 
 entered into was not one of the documents through which 
 title to flie burthened property is to be deduced (/) ; and 
 though no substantial damage was suffered from the breach 
 (/) ; and even (in some cases) though the covenant was one 
 of several identical covenants entered into by different 
 purchasers in pursuance of a single scheme, and the cove- 
 nantee had authorized one of the covenantors, not being 
 the one whose assign is now proceeded against, to violate 
 the covenant (g) ; and even though the covenantor himself 
 was bound by one of these covenants, and had violated it 
 in points comparatively unimportant (A). 
 
 (Conditions of But the disponee is only bound if, when he acquired the 
 Rule). 
 
 (i) At least a covenant not to take beer from any but a specified Brewer will 
 run with a Public-house, even though it be not entered into upon the occasion 
 of the lease of the Public-house, and though the Brewer in question be not the 
 Landlord of the Public-house (t). 
 
 (a) Lukerv. Dennis, L.R. 7 C. D. 227; 224; Western v. Mc. Dermolt, L. R. 2 
 
 Wilson v. Hart, L. R. I Ch. 463; Tulk Ch. 72. 
 
 v. Moxhay, 2 Ph. 774. (g) German v. Chapman, L. R. 7 C. 
 
 (6) Cooke v.Chilcott, L.R. 3 C. D. 694. D. 271. 
 
 (c) Wilson v. Hart, L. R. 1 Ch. 463. (A) Western v. Mc. Dermolt, L. R. 2 
 
 {d) Cooke v. Chilcott, L. R. 3 C. D. 694. Ch. 72. 
 
 (e) Luker v. Dennis, L. R. 7 C. D. 227. (i) Luker v. Dennis, L. R. 7 C. D. 227. 
 
 (/) Richards v. Revitt, L. R. 7 C. D.
 
 WHO IS LIABLE ON A CONTRACT. 175 
 
 property, circumstances existed sufficient, under the doc- 
 trines relative to priorities, to affect him with notice of the 
 covenant (a); or, perhaps, if he acquired the property 
 gratuitously, or omitted to acquire the legal estate; or, 
 perhaps, if the circumstances were such that damages 
 might be recovered against him. 
 
 And the covenant will not be enforced if it was part of a (Exceptions), 
 general scheme for the benefit of a great number of persons, 
 and (either by permission or acquiescence or by a long 
 chain of things) the property has been changed (either 
 entirely or to substantially as that the whole character of 
 the place or neighbourhood has been altered) so "that the 
 whole object for which the covenant was originally entered 
 into must be considered to be at an end" (/;). 
 
 In conclusion : — the assignment of property burthened When assign- 
 
 with a covenant does not relieve the covenantor from dam- !? ent ? e } ie * es 
 
 the original 
 
 ages, even for a breach subsequent to the assignment (c), promisor. 
 
 unless the party entitled to recover them have accepted 
 
 the assignee by way of novation (d); but it does relieve 
 
 him from liability to an action for specific performance of 
 
 the covenant (e) ; although an alienation of property which 
 
 has been contracted to be dealt with does not relieve the 
 
 promisor from liability to an action for specifically enforcing 
 
 that contract (/), unless the party entitled to bring it have 
 
 accepted the alienee (g) as a substitute. 
 
 I have already (Ji) explained one branch of the doctrine Who is liable 
 
 of exp. Waring {i) ; — that a creditor may take advantage of of which^' 
 
 a contract of pledge, made by the principal debtor with the takes advan- 
 tage, though he 
 be a stranger 
 
 (a) Tulkv. Moxhay, 2 Ph. 777; and Barnard v. Godscall, Cro. Jac. 309; t ° lt - . 
 
 most of the later cases which I have qualified by Marsh v. Brace, Cro. Jac. ^ vU e '* 
 
 cited as bearing on the liability of an 334. 
 
 assignee to perform the covenant; espe- (d) Fairlie v. Denton, 8 B. & C. 395. 
 cially Wilson v. Hart, L. R. I Ch. 463. (e) Clements?. Welles.L. R. 1 Eq.200. 
 
 (6) D. Bedford v. T. British Museum, (f) 1 Daniel Ch. Pr. (14th Ed,) 203. 
 2 M. & Ke. 152, as explained in L. R. (g) Holden v. Hayn, 1 Mer. 47. 
 7 C. D. 279. (A) Ante?. 165 (/). 
 
 (c) Staines v. Morris, 1 V. & B. 9; (i) 19 Vez. 345.
 
 17G WHO IS LIABLE ON A CONTRACT. 
 
 surety for the latter's indemnity, if such contract be no 
 longer capable of rescission. There is another branch of 
 the doctrine which falls under the present head. It is this: 
 — A creditor who takes advantage of a contract of pledge, 
 made by the principal debtor with the surety for the latter's 
 indemnity, is bound to submit to the same conditions as 
 the surety would have been (a). And for that reason the 
 creditor must, in the administration of the principal 
 debtor's estate (b), and for a somewhat different reason he 
 must, in the administration of the surety's estate (c), accept 
 the position of a secured creditor. And when there are two 
 sureties in different degrees, one guaranteeing payment by 
 the principal and the other guaranteeing that if the prin- 
 cipal should fail the former surety shall pay, then, (so far 
 as this rule is concerned,) the latter surety stands to the 
 former and to the principal in the position of a creditor (d), 
 and the former surety stands to the latter and to the 
 creditor in the position of a principal debtor (e). 
 
 And the rule applies whether the estate is being admin- 
 istered in Bankruptcy (/), or on Death (g), or in Winding 
 up (*'); and whether the application of the amount which 
 arose from the realization of the pledge was made under 
 the order of the Court (k) or otherwise (i) ; and even though 
 the circumstances which would have rendered the former 
 branch of the doctrine applicable, (so as to entitle the 
 creditor to insist on taking advantage of the pledge,) be 
 
 (a) Exp. Waring, 19 Vez. 345; Re (<;) 38 & 39 Vic, c. 77, s. 10. On 
 Barned's Bg. Co., L. R. 10 Cb. 198, affg. principle this would not have been so 
 S. C. 19 Eq. 192 (where the doctrine before that act. In Powles v. Mar- 
 is elaborately discussed). greaves, 3 D. G. M. G. 430, the question 
 
 (6) Exp. Waririg, 19 Vez. 345, whether more than the balance could 
 
 (shortly stated in L. R. 19 Eq. 8-9). have been proved for against the Insol- 
 
 (c) Re Barned's Bg. Co. (as to the vent Estate of the deceased principal 
 "Lady Rowena" and the "Gambia"); Debtor does not seem to have been 
 Powlesv. Hargreaves, 3 D G. M.G. 430. discussed. 
 
 (d) Re Barned's Bg. Co. (A) Re Barned's Bg. Co., (as to the 
 (c) Re Barned's Bg. Co., (as to the " Juventa"). 
 
 "Lady Rowena.") (i) Re Barned's Bg. Co., (as to the 
 
 (/) Exp. Waring ■ Re Barned's Bg. Co. " Gt. Victoria").
 
 WHO IS LIABLE ON A CONTRACT. 177 
 
 absent, and the privilege is merely being conceded to him 
 by the parties for their own convenience (a). 
 
 But it only applies when the payment is made out of the (Conditions of 
 proceeds of the pledge, (not when it is made by a third e e '* 
 person (£),) and in the cases this further circumstance 
 occurred, — that the relation of debtor, creditor, and surety 
 had arisen on Bills of Exchange to which the creditor and 
 the insolvents were parties, — but this cannot, on principle, 
 be essential. 
 
 t The practical effect of the rule is that the creditor is (Effect of the 
 restricted to dividends on the balance which remains after 
 the debt has been reduced by application of the proceeds 
 of the pledge, instead of being entitled to dividends on the 
 original debt ; and if dividends on the whole sum originally 
 due have been paid to the creditor he is bound to refund 
 the difference between them and the amount to which the 
 rule admits him to be entitled (c). 
 
 (a) Banner v.Johnson, L.R. 5H.L. 157. (c) Exp. Wari?ig (explained in re 
 (6) Said Re Bamed's Bg. Co., L. R. Bamed's Bg. Co., L. R. 19 Eq. 9, 14). 
 19 Eq. 13. 
 
 ««
 
 ( 178 ) 
 
 CHAPTER XXI. 
 
 FORMALITIES FOR EVIDENCING A CONTRACT, &C. 
 
 Purpose and 
 effect of these 
 Formalities. 
 
 Consequent 
 admissibility of 
 Oral Evidence 
 to diminish the 
 effect of such 
 a Contract, &c. 
 
 When these 
 formalities are 
 Requisite. 
 To a Contract. 
 
 In addition to the formalities necessary for ensuring 
 Deliberation, which have already (a) been discussed, certain 
 Formalities are required for Evidencing a Contract, Dispo- 
 sition, &c, in certain cases. But these Formalities cannot 
 confer validity on a contract &c. which before they were 
 required would not have possessed it. Consequently, the 
 signing of a document attended by these formalities and 
 containing terms which appear to be all that were agreed 
 upon, will not be sufficient if, in reality, other terms also 
 were agreed upon (b), nor if the parties did not intend 
 finally to bind themselves (b)\ and oral evidence of these 
 circumstances is admissible (b). And so a disposition will 
 be held to pass only the legal estate (c), or to pass the 
 estate by way only of mortgage (d), if such be the intention ; 
 and this intention may be proved by oral (e) evidence. 
 
 Evidentiary Formalities are necessary on (i) a promise 
 by an Executor or Administrator to answer damages out of 
 his own estate (/) ; (2) a promise to answer for the debt, 
 default, or miscarriage of Another person (/); (3) a promise 
 made in consideration of Marriage (/), (not being a promise 
 to marry) ; (4) an agreement which, in the ordinary course 
 of things, would not be performed within a Year from the 
 time of making it (g) ; (5) an acknowledgment of (or promise 
 
 (a) Ante?- 122-127. 
 
 (b) As to Specific Performance see 
 Ilusseyv. Horm-Payne, L. R.4 Ap. 323; 
 As to Damages, Clever v. Kirkman, 24 
 \V. R. 159. 
 
 (c) Haigh v. Kaye, L. R. 7 Ch. 469; 
 Booth v. Turk, L. R. 16 Eq. 182. 
 
 (d) Lincoln v. Wright, 4 D. G. J. 16. 
 
 (e) Haigh v. Kaye- Booth v. Turk, 
 Lincoln v. Wright. 
 
 (f) 29 Car. II, c. 3, s. 4. 
 
 (o) 29 Car. II, c. 3, s. 4, explained 
 by Britain v.Rossiter, L. J. 48 Ex. 362.
 
 FORMALITIES FOR EVIDENCING A CONTRACT, &C. 179 
 
 to pay) a debt barred by any Statute of Limitations (a) ; (6) 
 a contract for the Sale of Wares exceeding ^"io in value (b), 
 unless part of the wares be accepted, or an earnest given, 
 or part payment made (c); and (7) (which I have reserved 
 to the last because it is the point which we are here chiefly 
 concerned with) any (d) contract (except a compulsory 
 purchase under such a power (e) as that given by the 
 Lands Clauses Acts) respecting any interest in any here- 
 ditament (/): and, as personal Annuities granted to one 
 and his heirs are hereditaments, I apprehend that they 
 are within the above enactment, although they are not 
 within that part of the Statute which treats of Wills (g) 
 because in that part (h) the word "hereditaments" is not 
 used. 
 
 A Representation is equally effectual without these for- 
 malities, except a representation that another person is 
 solvent (i). 
 
 A Rescission of a Contract does not appear to require To a Rescission 
 any formalities (j), even though the contract itself requires 
 them (j), unless the rescission be contained in another 
 contract (j) of such a nature as to require them, in which 
 case its validity is held to be conditional on that of the 
 substitutionary contract (k). 
 
 A Testamentary Disposition requires these formalities (/), T 
 whether it be made by appointment (m) or not (n), except Disposition. 
 (in certain cases) the Will of a Soldier or Seaman (0) and tary. 
 except a Donatio mortis causa (p). 
 
 To a Repre- 
 sentation. 
 
 (a) 9 Geo. IV, c. 14, s. 1 ; 3 & 4 W. 
 IV, c. 42, s. 5. 
 
 (6) 9 Geo. IV, c. 14. 
 
 (c) 29 Car. II, c. 3, s. 17. 
 
 (rf ) Horsey v. Graham, L. R. 5 C. P. 
 9 ; Lamas v. Bayly, 2 Vern. 627. 
 
 (e) Watts v. Walts, L.R. 17 Eq. 217. 
 
 (f) 29 Car. II, c. 3, s. 4. 
 
 (g) E. Stafford v. Buckley, 2 V. S. 177. 
 (h) 29 Car. II, c. 3, s. 5. 
 
 (i) 9 Geo. IV, c. 14, qualified by 19 
 & 20 Vic., c. 97, s. 3. 
 
 0') Cora. Dig. "Actions on case 
 assumpsit" (G) cited (with some cases 
 wliicli appear to me to turn on other 
 points) in argument in L. R. 2 Ex. 135. 
 
 (k) Noble v. Ward, L. R. 2 Ex. 135. 
 
 (7) 7 Win. IV &. I Vic, c. 26, s. 9, 10. 
 
 (m) s. 9. 
 
 («) s. 10. 
 
 (o) s. 1 1 ; 28 & 29 Vic, c. 72 ; 1 7 & 
 18 Vic, c. 104, s. 200. 
 
 O) Moore v. Darton, 4 D. G. S. 517
 
 180 FORMALITIES FOR EVIDENCING A CONTRACT, &C. 
 
 If Non-testa- 
 mentary. 
 
 (Qualification 
 of Rule). 
 
 To an 
 
 Authority. 
 
 "What these 
 Formalities 
 consist of. 
 Firstly: 
 Writing. 
 When a 
 written Record 
 made after the 
 tiansaction is 
 sufficient. 
 
 A Non-testamentary Disposition of any interest, whether 
 legal (a) or merely beneficial (a), in any hereditament (a) 
 also requires them, unless it be a surrender of copyhold 
 (b) or a lease for a term not exceeding three years from the 
 making of it whereupon the rent reserved to the landlord 
 amounts to at least two-thirds of the full improved value 
 (c), or a surrender of a leasehold interest made symbolically 
 (d) or by change of possession (e) (i): but a lease made by 
 one entitled to any sufficient estate will, (as will also any 
 disposition made by one who has a fee-simple,) create a 
 Tenancy at Will (/), even though it be unaccompanied by 
 these formalities. 
 
 An Authority to make such a non-testamentary dispo- 
 sition affecting a hereditament as requires these formalities 
 must itself be accompanied b)' them (g), but an authority 
 to make a contract need not (h). 
 
 The fact that an agreement which this Statute would 
 invalidate was made abroad, does not entitle a party to 
 sue upon it in this country (/). 
 
 The first formality prescribed for evidencing the trans- 
 action is Writing. A Disposition of a merely beneficial 
 interest in a hereditament, when made by declaration of 
 trust, (that is when the disponor is to hold the property for 
 the disponee,) need merely be proved by writing (_/') ; but 
 when made by a direct disposition it must, (and so must 
 every disposition of a legal interest,) be made by writing (k). 
 
 (i) The Act excepts "Surrenders by operation of law." Under this expres- 
 sion are included Surrenders made in either of the modes mentioned in the 
 text, and also certain transmissions (/), which, not being dispositions at all, do 
 not fall within the terms of the rule stated in the text, and therefore do not 
 require to be mentioned there as exceptions. It also excepts (m) Trusts arising 
 by operation of law which also are not dispositions but transmissions. 
 
 (a) 29 Car. II, c. 3, s. 1,3, 7, 9. 
 (6) s 3. 
 
 (c) s. 2. 
 
 (d) 29 Car. II, c. 3, s. 1, as inter- 
 preted by Dodd v. Acklom, 6 M. & G. 
 673. 
 
 (e) Phene v. Popplewell, 12 C. B. N. 
 S. 334. 
 
 (J) 29 Car. II, c. 3, s. 2. 
 (?) s. 1, 2. 
 
 (h) 29 Car. II, c. 3, s. 4, 17. 
 
 (i ) Leroux v. Brown, 12 C. B. 801. 
 
 0') 29 Car. II, c. 3, s. 7; Smith v. 
 Matthews, 3 D. G. F. J. 139. 
 
 (£) 29 Car. 1 1, c. 3, s. 1, 3, 9-, and 
 as to Wills, 7 Wm. IV & 1 Vic, c. 26, 
 s. 9. 
 
 (/) 29 Car. II, c. 3, s. 1 ; Lyon v. Reed, 
 13 M. & W. 285. 
 
 (m) 29 Car. II, c. 3, s. 8.
 
 FORMALITIES FOR EVIDENCING A CONTRACT, &C. 181 
 
 A Contract must be made or recorded (a) by writing (b), and a 
 memorandum recording it is not insufficient merely because 
 it disputes the correctness of the meaning assigned by the 
 opposite party to an unsigned paper to which it refers as 
 containing the terms of the contract (c). Letters (d) are a 
 sufficient written embodiment of the contract, and a slight 
 expression of reference in one letter is sufficient to connect 
 it with the rest, or with other documents (e). But a Plead- 
 ing which insists that a specified oral agreement is not 
 binding is not a sufficient memorandum thereof, though it 
 acknowledge that it was made (/). 
 
 A contract or disposition is not deemed to be in writing What the 
 
 unless all its terms are embodied in the written document lvn ' n !& must 
 
 contain. 
 
 or in some paper referred to (g) therein ; but oral evidence 
 is admissible to show what paper is thus referred to (h), 
 and a mere reference to the details of the contract as 
 "agreed upon" sufficiently indicates that there is some 
 paper embodying them to admit oral evidence of the 
 existence and identity of that paper, so that the paper, 
 though itself unsigned, becomes incorporated into the 
 signed document which contains the reference, at least if 
 the latter be a letter (i). Consequently, (in cases in which 
 evidentiary formalities are required,) all those terms 
 which a contract must necessarily contain must be put into 
 writing, and to this principle a Declaration of Trust is no 
 exception (_/). The contracting parties, the subject-matter 
 of the contract, and its consideration, are amongst these 
 
 (a) Barkworth v. Young, 4 Drew. 1. (f) Jackson v. Oglander, 2 H. & M. 
 
 (6) 29 Car. II, c.3, ss. 4, 17. 465. 
 
 (c) Buxton v. Rust, L. R. 7 Ex. 279. (g) Smith v. Dix, 3 Jur. 770. 
 
 (d) Huddleslon v. Briscoe, 1 1 Vez. (/i) Ridgway v. Wharton, 6 H. L. C. 
 583; said Hussey v. Home-Payne, L. 238; see also as to what is a sufficient 
 R. 4 Ap. 323; though expressed in the incorporation, Nene Valley Sec. v.Dunck- 
 third person, Hartley v. Wilkinson, 1 ley, L. R. 4 C. D. 1; Morgan v.Holford, 
 Ridg. L. & S. 357; Baumann v. James, 1 S. & G. 101. 
 
 L. R. 3 Ch. 508. (i) Baumannv. James, L.R.3Ch.508. 
 
 (e) Notes (9) (/«) (i) in this page. (j) Smith v. Matthews, 3 D. G. F. J. 
 
 139.
 
 182 FORMALITIES FOR EVIDENCING A CONTRACT, &C. 
 
 Secondly: 
 Either Signa- 
 ture. 
 In what 
 position and 
 with what 
 purpose. 
 
 terms. The question how far it is necessary that their 
 Identity should be present to the mind of each party has 
 been already considered (a), — that now under consideration 
 is how far it is necessary that the means of ascertaining 
 that identity should be committed to writing, — but the 
 same answer which was given to the former question is 
 applicable also to this, and I need do no more here than 
 refer to the recent cases on the subject (b). Terms which 
 are implied (c) need not be mentioned in the writing, and 
 to this exception must be referred the decision that a 
 written declaration by one who acquires an estate, that he 
 holds it on trust for another, implies that he will also hold 
 on the same trust any other interest which he may after- 
 wards acquire under circumstances making it a graft on 
 the former (d). 
 
 The second Formality is Signature (e), which, in case of 
 an instrument not testamentary, is sufficient, though not 
 meant to give effect to the instrument as a contract (/) &c, 
 or as evidencing such, and though not placed in the usual 
 position of a signature (g), but yet only if meant to give for 
 some purpose authenticity to the document (/*); while in case 
 of a testamentary instrument the signature need not be 
 exactly at the foot or end of the will («'), but must be so 
 placed (i) as to show an intention to give effect to the docu- 
 ment as a testamentary disposition (i), and cannot validate 
 anything underneath or following it (i), nor anything written 
 after it was appended {i). 
 
 (a) Ante p. 101. 
 
 (6) Sufficient descriptions: "Propri- 
 etors" Rossiter v. Millrr, L. R. 3 Ap. 
 1124; "Trustee selling under a Trust 
 for Sale" Catling v. King, L. R. 5 C. 
 D. 660; "Company in possession" Com- 
 mins v. Scott, L. R. 20 Eq. 1 1 ; "Legal 
 personal representative of A " (though 
 ne did not then as yet fill that Office) 
 Towle v. Topham, 37 L. T. N. S. 308. 
 Insufficient description: "Vendor" Pot- 
 lar v. Duffield, L. R. 18 Eq. 4. 
 
 (c) Anle^. 102, 103; and as to consi- 
 
 deration see Powers v. Fowler, 4 E. & 
 B. 511; And for a discussion of the 
 doctrine of Implied terms, Cooper v. 
 Hood, 26 Bea. 293. 
 
 (d) Acherley, v. Acherley, 7 B. P. C. 
 273. As to Grafting see Chap. XXV. 
 
 (e) 29 Car. II, c. 3, ss. 1, 3, 4, 17. 
 (/) Jones v. Victoria fyc. Co., L. R. 
 
 2 Q. B. 323. 
 
 (</) Tourret v. Cripps, L. J. 48 Ch. 567. 
 Q/i) Catonv.Caton, L. R.2 H. L. 127. 
 (i) 15 & 16 Vic, c. 24.
 
 FORMALITIES FOR EVIDENCING A CONTRACT, &C. 183 
 
 The signature of the disponor (a) or promisor (b) is By whom, 
 necessary even though the disposition be made to one as 
 trustee, and consequently a declaration of trust signed by 
 the latter only is a nullity (c). And even if a vendor exe- 
 cutes and registers the conveyance, yet, if the purchaser 
 have not signed anything he (the purchaser) is not bound 
 (d). But the signature of the disponee or promisee is 
 unnecessary even when valuable consideration from him is 
 stipulated for (e), unless the vesting in the promisor of an 
 estate which could not pass to him without the promisee's 
 signature be a condition precedent to the promisor's liability 
 (/). And the memorandum need not even purport to express 
 the assent of both parties, for an offer signed by one party 
 and afterwards orally accepted (or by conduct acquiesced 
 in) by the other is sufficient on an action by the latter (g), 
 though it seems the party who signed can avoid the contract 
 unless the other will sign within a reasonable period after 
 request (h). But the signature of any person authorized (i) As Agent. 
 by the disponor or promisor is equivalent to that of the 
 disponor &d himself, unless the person so authorized be 
 also a party (J) to the contract, except when the disposition 
 is a declaration of trust (k), or is what the act. calls "an 
 assignment of a trust" (which seems to include every 
 disposition of a merely beneficial interest (I)), and provided 
 that when the disposition is testamentary the agent must 
 sign in the presence and by the direction of the testator (m). 
 And the sending of an offer or acceptance by telegraph is 
 held to impliedly authorize the telegraph clerks to sign the 
 sender's name (n) ; and the employment (o) of any person 
 
 (a) 29 Car. II, c. 3, ss. 1, 3, 7, 9. 3 Drew. 531 I 25. 
 
 (6) 29 Car. II, c. 3, s. 4, 17. («) 29 Car. II, c. 3, ss. 1, 3, 4, 17. 
 
 (c) Kronheim v. Johnson, L. R. 7 C. (j) Sharman v. Brandt, L. R. 6 Q. 
 D. CO. B. 720. 
 
 (d) Hawkins v. Holmes, 1 P. W. 770. (it) 29 Car. II, C. 3, S. 7. 
 
 (e) Ante p. 148-9. (0 s. 9. 
 
 (f) Soprani v. Skurro, Yelv. 18. (m) 7 Wm. IV & 1 Vic, c. 26, S. 9. 
 (jr) Heuss v. Picksley, L. R. 1 Ex. (n) Goodwin v. Francis, L. R. 5 C. 
 
 342; Warner v. Willinglon, 3 Drew. 523. P. 302. 
 
 (ft) Said in effect Warner v. Willington, (o) Kemeys y. Procter, 3 V.& B. 57.
 
 184 FORMALITIES FOR EVIDENCING A CONTRACT, &C. 
 
 At what time. 
 
 Or (sometimes) 
 Sealing and 
 Delivery. 
 
 Thirdly: 
 Attestation. 
 Requisite only 
 to a Will. 
 How made. 
 
 Addendum as 
 to Contracts 
 for Sale of 
 Bank Shares. 
 
 as auctioneer, or the bidding (a) at an auction, is held to 
 imply an authority to the auctioneer to sign the party's 
 name, but only on the condition of incorporating the 
 conditions of sale (b). . 
 
 An acknowledgment after the document has been finally 
 revised, of a signature appended before, is sufficient (c), 
 except in case of a testamentary disposition (d). 
 
 And sealing and delivery may be substituted for signature 
 in case of a non-testamentary disposition of a subsisting 
 legal interest less than a fee-simple (e), and (probably) on 
 any non-testamentary disposition (/) or contract (/). 
 
 The third and last formality, (which however is only 
 necessary to a will or codicil,) is Attestation, which must 
 be made by the signature, in the testator's presence, of 
 two persons, in whose simultaneous presence his signature 
 has been either made or acknowledged, but no particular 
 form of attestation is necessary (g). 
 
 Contracts for the sale of shares &c. in banks, must, 
 (though for reasons different from those on which the 
 doctrine the subject of this chapter is founded,) designate 
 the shares &c. by their registered number, or if none, by 
 the name of the registered proprietor (h). 
 
 (n) Kemeys v. Procter, 3 V. 8c, B. 57. 
 
 (6) Rishto7i v. Whatmore, L. R. 8 C. 
 D. 467. 
 
 (c) Hudson v. Stewart, L. R. 9 C. P. 
 311. 
 
 (rf) 15 & 16 Vic, c. 24. 
 
 (e) 29 Car. II, c. 3, s. 3. 
 
 (/) Cherry v. Heming, 4 Ex. 631. 
 
 (g) 7 Win, IV & 1 Vic, c. 26, s. 9. 
 
 (A) 30 & 31 Vic, c. 29, s. 1.
 
 ( 135 ) 
 
 CHAPTER XXII. 
 
 EXCEPTIONS TO THE STATUTE OF FRAUDS. 
 
 As acts in reliance on an incomplete (a), or perhaps even 
 an indefinitive (b), contract or disposition render it binding, 
 so, much more, do acts in reliance on a contract which 
 exists in fad:, and is invalid merely for want of evidentiary 
 formalities. Such acts are termed acts of Part Perform- 
 ance, and the rule which attributes efficacy to them, 
 (unlike the corresponding rule respecting contracts incom- 
 plete or indefinitive) is perfectly unquestionable. 
 
 Acts in reliance on a contract cure this kind of inform- 
 ality whether they be strictly a partial performance of its 
 stipulations, (as a change of the possession in pursuance 
 of a contract to sell (c) or lease (d),) or not, (as expenditure 
 (e) by the promised purchaser or lessee on property the 
 subject of the contract, of which he, before the contract, 
 held possession as tenant or otherwise, and upon which, 
 therefore, he did not require to enter). But such acts will 
 only cure this defect if the contract be specifically enforcible 
 (/); and then only when a specific remedy (as distinguished 
 from damages) is sought (g). Yet even in actions for 
 damages complete performance on one side will in some 
 cases render the prescribed formalities unnecessary if the 
 damages be merely sought for the withholding of a definite 
 sum of money received or paid (h). 
 
 Acts of Part 
 Performance 
 &c. 
 
 Though not 
 strictly a 
 partial 
 Performance. 
 
 Only if the 
 Remedy 
 sought be 
 specific. 
 
 Unless per- 
 formance 
 complete on 
 one side and 
 damages 
 definite. 
 
 (a) Ante j). 104. 
 
 (6) Ante p. 99. 
 
 (c) Buckmasterv. Harrop, 13 Vez. 494. 
 
 ((f) Pain v. Coombs, 1 D. G. J. 34. 
 
 (e) Williams v. Evans, L. R. 19 Eq. 
 547; Mundy v. Joliffe, 5 M. & Cr. 167; 
 Nunn v. Fabian, L. R. 1 Ch. 35, (where 
 there was also part payment of the pur- 
 chase money) ; Wills v. Stradling, 3 Vez. 
 378; much more entry and expenditure 
 
 together Lester v. Foxcrqft, 1 W. T. L. 
 C. (4th Ed.) 768. [362. 
 
 (/) Britain v. Rossiler, L. J. 48 Ex. 
 
 (g) Kelly v. Webster, 12 C. B. 283. 
 
 (A) Crampton v. Varna fyc, L. R. 7 
 Ch. 562; and see Knowlman v. Bluett, 
 L. R. 9 Ex. 307 ; Green v. Saddington, 7 
 E. & B. 503; Jeakes v. White, 6 Ex. 873, 
 qualified by Kelly v. Webster, 12 C. B. 
 283. 
 
 24
 
 186 EXCEPTIONS TO THE STATUTE OF FRAUDS. 
 
 Only if And these acts will only cure this defect if they are such 
 
 to^n^doer™ 5 as » in case tne contract were not carried out (a),) would 
 damage the party who did them. Consequently, circum- 
 stances merely evidentiary of a contract are not sufficient, 
 however strong the evidence which they afford may be, — as, 
 that the vendor, (to prevent a writ of elegit which had been 
 issued against him from being executed upon the property,) 
 gave evidence to show that the estate belonged to the 
 promised purchaser, or that, when applied to for permis- 
 sion to cut timber upon it, he referred the applicant to the 
 promised purchaser (b). Yet a change of the possession is 
 held to entitle not only the vendor or lessor, but also the 
 purchaser or lessee, to enforce the contract. In the case 
 of a lease this appears reasonable, because burthens are 
 attached to the lease, and the promised lessee, by entering, 
 subjects himself to them; but on an ordinary purchase, in 
 which the purchaser can derive only advantage from the 
 occupation, the reason must (I think) be sought in the 
 rule that every contract specifically enforcible by one party 
 is so by the other (c). Lord Redesdale, indeed, gave 
 another reason, that if the contract were held void the 
 purchaser would be subject to an action of trespass (d)-, 
 but this would not be so, for he might plead the vendor's 
 leave and licence (i). However, in the latest case on the 
 subject (e), in which a man, in consideration of his daugh- 
 ter's intended marriage, agreed with her and her intended 
 husband to give them a house, and they contracted the 
 marriage, and entered with his assent into possession, the 
 
 (i) Nor is he liable to an action for use and occupation (/), even though he 
 reject the vendor's title (g), though in that case he must account for the income 
 received, less by equitable deductions (A). 
 
 (a) Said 1 S. & L. 41 ; id. 130; Caton (f) Corrigan v. Woods, I. R. 1 C. L. 
 V.Caton; Phillips v.Alderton, 24W.R.8. 73; Kumball v. Wright, 1 C. & P. 590. 
 
 (b) Whaley v. Bagenal, 1 B. P. C. 345. (g) Winterbottom v. Ingham, 7 Q. B. 
 
 (c) Ante p. 149. 611. 
 
 (d) 1 S. & L. 41. (h) King v. King, 1 M. & K. 442, 
 
 (e) Ungky v. Ungley, L. R. 5 C. D. approved 22 Bea. 365. 
 887.
 
 EXCEPTIONS TO THE STATUTE OF FRAUDS. 187 
 
 Court held the contract valid on the ground of part perfor- 
 mance, although no burthens were attached to the posses- 
 sion of the house, and although there was nothing left for 
 the father to enforce, because the marriage, which was the 
 only consideration to be rendered by the promisee, had 
 already taken place. It is not however clear that the 
 Court meant to treat the entry and possession as sufficient 
 acts in reliance on the contract. They considered them 
 as evidentiary of the existence of a contract, (and there- 
 fore as fulfilling the condition about to be stated that 
 the acts in reliance on the contract or some other acts 
 accompanying them must be evidentiary of the existence of 
 a contract,) and their view may have been that the 
 marriage was a sufficient act in reliance on the contract. 
 Such a view would be quite consistent with the doctrine 
 (about to be stated) that a marriage alone, without any 
 other act evidentiary of a contract, is not a sufficient part 
 performance. Or they may have been led to decide as 
 they did by the consideration that acquiescence by a father 
 in the marriage of his daughter implies inducement, and 
 therefore entitles a promisee or representee to enforce 
 either a promise or representation of intention though there 
 be no other part performance than the marriage (a). They, 
 however, did not profess to be influenced by this last 
 consideration, and it is difficult to attribute to them the 
 former view, because marriage is not a sufficient act, even 
 when accompanied by the evidentiary circumstance that 
 the promisor, in pursuance of the promise, (which was to 
 make his will in a specified way and abstain from revoking 
 it,) did make it accordingly (b). 
 
 And these acts will only cure this defect if they be such And within the 
 as were within the contemplation of the parties when j^^fj of the 
 contracting (c). 
 
 (a) Hammersley v. Be Biel, 12 CI. & Mascal, 2 Vern. 34. 
 F. 4 5 ; Prole v. Soady, 2 Giff. 1 ; Williams (b) Caton v. Caton, L. R. 2 H. L. 1 27. 
 v. Williams, L. J. 37 Ch. 854 ; Cokes v. (c) Floyd v. Buckland, 2 Free. 268.
 
 188 
 
 EXCEPTIONS TO THE STATUTE OF FRAUDS. 
 
 And Eviden- 
 tiary. 
 
 Except in cases 
 of Fraudulent 
 Inducement. 
 
 Not if consist- 
 ing of Execu- 
 tion of 
 Instruments. 
 
 And only if they, or some acts accompanying them, be 
 of a character not readily explicable on any other assump- 
 tion than that some contract exists between the parties (a). 
 Entry into possession (b) is held to be of this character; 
 and so is expenditure (c)\ but continuance in an occupation 
 which existed before the contract is not alone sufficient (d); 
 nor are trifling acts (such as re-building a party wall (e)); 
 nor is making a will containing a specified bequest (the 
 promise being to make such will and always abstain from 
 revoking it (/)) ; nor is procuring (even for valuable consi- 
 deration) a release of a claim, the contract being to make, 
 (in consideration of the procurement of the release,) a 
 conveyance of specified property (g) ; nor is the payment 
 of Auction Duty, since it is equally necessary whether 
 there is a valid sale or not (A). However, Fraudulent 
 Inducement renders evidentiary circumstances unnecessary 
 in certain cases, and consequently the death of the promisee 
 without leaving the property away from the promisor (when 
 the latter is the person to whom it would pass by his death), 
 or without revoking a will by which he has left the property 
 to the promisor, cures the defect of Informality in respect 
 of an engagement by the promisor to deal with the property 
 for the benefit of a third person. An oral or implied agree- 
 ment of this nature is therefore as valid (*) as if in writing 
 and signed. 
 
 But acts of part performance are not sufficient if they 
 consist merely in the execution of legal instruments, — 
 even the execution and registration of the conveyance does 
 
 (a) Exp.Z/ooper, 19Vez.497; Ungley 
 V. Ungley, L. R. 5 Ch. 887. 
 
 (6) Cases cited Ante p. 185 (c)(rf). 
 
 (c) Cases cited Ante p. 185 (e). 
 
 (d) Conceded Lincoln v. Wright, 4 D. 
 G. J. 20; Williams v. Evans, L. R. 19 
 Eq. 547. 
 
 (e) Frame v. Dawson, 14 Vez. 384. 
 
 (f) Caton v. Caton, L. R. 2 H. L. 127. 
 
 (g) O'Reilly v. Thompson, 2 Cox. 271. 
 
 (h) Buckmaster v. Harrop, 13 Vez. 
 465-6. 
 
 (i) Springettv. Jennings, L. R. 10 Eq. 
 488; Norris v. Frazer, L. R. 15 Eq. 
 318; As to the amount of evidence 
 sufficient to establish such a promise, 
 6ee Mc, Cormick v. Grogan, L. R. 4 H. 
 L. 82, and Jones v. Badley, L. R. 3 Ch. 
 362.
 
 EXCEPTIONS TO THE STATUTE OF FRAUDS. 
 
 189 
 
 not entitle the vendor to enforce the contract against a 
 purchaser who never signed anything (a); nor if they con- 
 sist merely of the payment of money (b), (though this may 
 be relied as strengthening the force of acts of expenditure 
 (c);) nor if they consist wholly of preliminaries (d), except 
 under special circumstances (e). 
 
 And Marriage is not a sufficient act of part performance 
 (/) even when it forms the consideration of the promise (/), 
 because the statute contains a distinct clause (g) invalida- 
 ting oral agreements made in consideration of marriage. 
 And although an exception of cases in which the marriage 
 has been solemnized would not be strictly co-extensive with 
 the rule (which would still apply to the agreements in 
 consideration of a promise to marry until that promise had 
 been performed), yet it would practically be nearly so. 
 
 A Decision that a specified act of part performance is not 
 sufficient to validate an informal contract proves a fortiori 
 that it is not sufficient to validate an incomplete or inde- 
 finitive one, and a decision that such an act is sufficient to 
 validate an incomplete or indefinitve one proves a fortiori 
 that it is sufficient to validate an informal one. 
 
 The above doctrine is founded on the principle that a 
 statute made to prevent fraud shall not be used to support 
 fraud, and any new circumstances falling within the same 
 principle will also render Formalities for ensuring evidence 
 unnecessary in a specific performance action, though I 
 have shown (h) that the cases (i) decided on this point are 
 explicable on another ground. 
 
 Nor of 
 Payment. 
 
 Nor of 
 Preliminaries. 
 
 Nor of 
 Marriage. 
 
 (Reasoning 
 from the effect 
 of these acts 
 on Informality 
 to their effect 
 on other defects 
 and conversely. 
 
 Fraud. 
 
 (a) Hawkins v. Holman, 1 P. W. 769, 
 (where the purchaser did not attend at, 
 nor agree tot the execution). 
 
 (6) Clinan v. Cooke, 1 S. & L.40; said 
 Hughes v. Morris, 2 D. G. M. G. 356; 
 Contra, said Main v. Melbourne, 4 Vez. 
 720. 
 
 (c) Nunn v. Fabian, L. R. 1 Ch. 35. 
 
 (d) Whaley v. Bagpial, 1 B. P. C. 
 345; Popham v. Eyre, Lofft. 808; Pem- 
 
 broke v. Thorpe, 3 Swan. 422; Cooth v. 
 Jackson, 6 Vez. 4 1 ; Redding v. Wilkes, 
 1 B. C. C. 400. 
 
 (e) Child v. Coniber, 3 Swan. 427. 
 
 (/) Caton v. Caton, L. R. 2 H. L. 127. 
 
 (g) 29 Car. II, c. 3, s. 4. 
 
 (ft) Ante p. 178. 
 
 (i) Eaigh v. Kaye, L. R. 7 Ch. 469; 
 Lincoln v. Wright, 4 D. G. J. 23.
 
 190 
 
 EXCEPTIONS TO THE STATUTE OF FRAUDS. 
 
 Certain 
 Judicial Sales. 
 
 Deposit of 
 Deeds. 
 
 Admission by 
 pleading. 
 
 A sale under the Chancery division (a), but not (b) a sale 
 in bankruptcy may be enforced notwithstanding the 
 absence of the prescribed formalities. 
 
 A deposit of Title Deeds as security for money (c), 
 (which implies an agreement to mortgage the property 
 contained in them,) is likewise an exception, not only to 
 the extent to preventing the depositor from recovering 
 back the parchments, but to that of specifically binding 
 the estate. This doctrine originated in the view that the 
 Title Deeds could not be required without payment, but is 
 now extended to the land itself, 
 
 And as " quilibet potest remmciare juri pro se introducto" an 
 oral agreement will be enforced if the defendant admit it 
 and do not insist upon the Statute (d). 
 
 (a) See Blagden v. Bradbear, 12 Vez. (4th Ed.) 674. 
 
 466, 477; Atl-Gen. v. Bay, 1 Vez. 218. (d) Gunter v. Hdlsey, Amb. 586; 
 
 (6) Said Exp. Cutts, 3 Dea. 267. Spurrier v. Fitzgerald, 6 Vez. 548; said 
 
 (f) Russell v. Russell, 1 W. T. L. C. Ridgway v. Wharton, 3 D. G. M. G. 689.
 
 ( 191 ) 
 
 CHAPTER XXIII. 
 
 CONFLICT BETWEEN DUTY AND INTEREST AS AFFECTING 
 THE VALIDITY OF CONTRACTS, &C. 
 
 Duty conflicting with interest is likely to be neglected, 
 and several rules of law have been established to prevent 
 this result. 
 
 For this reason a witness attesting a will is not (nor is 
 the husband or wife of such witness) entitled to any gift 
 contained in the will, and any such gift is void even as to 
 the legal estate, and not merely voidable (a). 
 
 But in general this principle operates only (b) on the 
 beneficial estate, and merely renders a disposition voidable 
 (c). One fundamental principle derived from it is that a 
 fiduciary is not entitled to place himself in a position in 
 which his interest would be opposed to his duty (d), as, (it 
 seems,) by foreclosing a mortgage which he holds on the 
 trsut estate (d), or, (in general), by bidding at a sale of the 
 trust property (d), though such sale be made by auction 
 under the Court (d). 
 
 Consequently, a fiduciary selling property in pursuance 
 of his trust is not authorized to sell it to himself (e) ; and 
 any such sale will be voidable (/) by the beneficiary or his 
 representatives, whether the fiduciary in question be 
 trustee (g), executor, (h) administrator, or otherwise (i); 
 and a bankruptcy trustee (_/), and a solicitor in a bank- 
 ruptcy (;'), are deemed to be (in respect: to the estate) fidu- 
 
 (a) 25 Geo. II, c. 6, s. 1 ; 26 Wm. 
 IV & 1 Vic.,c. 26, s. 15. 
 
 (b) Hamilton v. Wright, 9 C. & F. 
 123; Mackintosh v. Barber, 1 Bing. 50. 
 
 (c) Exp. James, 8 Vez. 352. 
 
 (d) Tennant v. Trenchard,'h. R. 4 Ch. 
 5S7. 
 
 (e) Fox v. Mackreth, 1 W. & T. L. 
 C. (4th Ed.) 115; Exp. Lacey, 6 Vez. 
 
 625, in which the doctrine is well 
 defined. 
 
 (f) Exp. James, 8 Vez. 352. 
 
 (g) Fox v. Mackreth, 1 W. & T. L. 
 C. 115. 
 
 (A) Hall v. Hallett, 1 Cox. 134. 
 (i) Lewin on Trusts (5th Ed.) 364- 
 5; Dart on Vendors, c 1, s. 4. 
 (J) Exp. James, 8 Vez. 345-6. 
 
 Reason of the 
 Rules on this 
 subject. 
 
 Witness to Will 
 incapacitated 
 from taking 
 under it. 
 
 Principle gen- 
 erally confined 
 to beneficial 
 estate. 
 
 Fiduciarymay 
 not place 
 himself in a 
 position in 
 which Interest 
 would be 
 opposed to 
 Duty. 
 
 Fiduciary may 
 not sell to 
 himself.
 
 192 CONFLICT BETWEEN DUTY AND INTEREST, &C. 
 
 Fiduciary may 
 not purchase 
 from himself. 
 
 Life-tenant 
 may purchase 
 from fiduciary. 
 
 ciaries within this rule, because the creditors on whose 
 behalf they are acting cannot personally interfere, although 
 a solicitor carrying out a sale on behalf of a vendor (a) who 
 himself superintends it is not so deemed; but a solicitor 
 conducting a litigation (b) respecting property is deemed 
 such in respect to that property. The rule holds though 
 there be no unfair dealing in the particular case (c), and 
 though an auction be the mode of sale adopted (d) (i). 
 
 So a fiduciary purchasing 'property pursuant to his trust 
 is not authorized to purchase it from himself (e), nor is he 
 authorized to purchase it from one whose creature he is 
 (/) unless he disclosed the facts from which that circum- 
 stance appears (such as the fact that it was this vendor 
 who selected him for the fiduciary office (/)) ; but the rule 
 does not extend to a case in which there are several pur- 
 chasing fiduciaries and the majority of them are indepen- 
 dent, though the minority be vendors or under the control 
 of the vendors (g), for in this case the disinterested fiduci- 
 aries are considered sufficient representatives of the bene- 
 ficiary, so that the case falls under the same rules as if the 
 purchase were being effected by the beneficiary himself (h). 
 
 A Life-tenant whose consent is requisite to a sale of the 
 settled property is however entitled to purchase it himself (i). 
 
 (i) In a recent friendly suit (j), in which Exp. James was cited, a sale by 
 auction was held not to fall within the rule, and a purchase by the trustee 
 from himself was upheld, he having acted correctly in the particular case; but, 
 as this was only the decision of a Vice-Chancellor, and Exp. James that of a 
 Lord Chancellor, I have stated the law conformably to Exp. James. It is a 
 mistake to say that the purchase in Exp. James was not held void. The Lord 
 Chancellor said he would not set it aside if all the parties interested chose to 
 confirm it. 
 
 (a) Said Mc. Pherson v. Watt, L. R. 
 3 Ap. 266, 270, qualified in p. 271, 
 where Holman v. Loynes, 4 D. G. M. G. 
 278 is cited. 
 
 (b) Hall v. Hallet, 1 Cox. 134. 
 
 (c) Exp. James, 8 Vez. 345, 347, 351-2. 
 id) Exp. James, 8 Vez. 337, 348-9; 
 
 Ingle v. Richards, (No. 1) 28 Bea. 361. 
 (e) Said A Ibion Steel Sfc. Co. v. Mar- 
 
 tin, L. R. 1 C. D. 585. 
 
 (/) New Sombrero Co. v. Erlanger, 
 L. R. 5 C. D. 73. 
 
 (</) Implied by the reasoning in New 
 Sombrero Co. v. Erlanger. 
 
 (A) See below. 
 
 (i) Dicconson v. Talbot, L. R. 6 Ch. 
 37-8. 
 
 (j) Hickley v. Hickley, L. R. 2 Ch. 190.
 
 CONFLICT BETWEEN DUTY AND INTEREST, &C. 
 
 193 
 
 A fiduciary's purchase from, or sale to, a beneficiary 
 who himself takes an active part in the contract is equally 
 invalid as a general rule (a) ; and the rule extends to all 
 who occupy confidential relations, though they be not 
 strictly fiduciaries (b). 
 
 But a disclosure by the fiduciary to the beneficiary of all 
 circumstances known to the former (c) and unknown to the 
 latter and likely to influence (d) the judgment of the latter 
 in deciding whether and on what terms to sell &c, made 
 before the conclusion of the contract, creates an exception 
 to this rule, though, of course, invalidity may, notwith- 
 standing, arise from other causes, as, for example, from 
 the presumption of undue influence (e). 
 
 A Life-tenant seems to stand on the same footing as a 
 fiduciary so far as regards his liability when dealing with 
 the settled property to disclose any circumstances known 
 to him respecting it (/). 
 
 On a sale by a fiduciary to his beneficiary the circum- 
 stance that the former had (a few days before) purchased 
 the property at half the price at which he is endeavouring to 
 sell it must be disclosed to bring the case within this 
 exception (g); and on either a sale (h) or purchase (i) 
 effected not by the fiduciary himself but by another on his 
 behalf the fact that the latter is acting on behalf of the 
 fiduciary must be equally so. 
 
 Notwithstanding the above rules, a person who is seek- 
 ing to obtain a valuable appointment as fiduciary, (for 
 
 (a) Pooky v. Quilter, 2 D. G. J. 
 337 ; Mc. P her sen v. Watt, L. R. 3 Ap. 
 254. 
 
 (b) Mc. Pherson v. Walt, L. R. 3 Ap. 
 254. 
 
 (c) Luff v. Lord, 34 Bea. 227; Den- 
 ton v. Bonner, 23 Bea. 220; Spencer v. 
 Topham, 22 Bea. 580-1 ; and see Pooky 
 v. Quilter, 2 D. G. J. 344, 350, and 8 
 Vez. 352. 
 
 (d) Mc. Pherson v. Watt, L. R. 3 Ap. 
 266, 271 ; New Sombrero Co.v. Erlanger, 
 
 L. R. 5 CD. 118. 
 
 (e) Gray v. Warner, L. R. 16 Eq. 
 577; Luff v. Lord, 34 Bea. 227; Ante 
 p. 132-3. 
 
 (f) Said Dicconson v. Talbot, L. R. 6 
 Cli. 37-8. 
 
 (jr) A r eio Sombrero Co. v. Erlanger, L. 
 R. 5 C. D. 118. 
 
 (A) Neio Sombrero Co. v. Erlanger, L. 
 R. 5 C. D. 120. 
 
 (0 Mc. Pherson v. Watt, L. R. 3 Ap. 
 272. 
 
 Fiduciary may 
 not sell to or 
 purchase from 
 Beneficiary. 
 
 Unless he 
 Disclose all 
 material 
 circumstances. 
 
 Nor may Life- 
 tenant. 
 
 What circum- 
 stances are 
 material. 
 
 Intending 
 fiduciary may 
 purchase with 
 intent to sell 
 to beneficiary. 
 
 85
 
 194 CONFLICT BETWEEN DUTY AND INTEREST, &C 
 
 Rules apply to 
 entire trans- 
 action though 
 Fiduciary- 
 acted jointly 
 with another 
 person. 
 
 Fiduciary &c. 
 may not 
 receive Gift 
 from benefi- 
 ciary. 
 
 Beneficiary is 
 entitled to 
 whatever 
 Fiduciary has 
 (as such) 
 acquired. 
 
 example, a promoter of a company seeking to obtain the 
 appointment of director,) is entitled to engage with a third 
 person, that, if he obtain it, he will purchase specified 
 property from that third person (a) with the purpose of 
 afterwards selling it at a profit to the beneficiaries, but 
 whether he can fulfil this engagement will depend upon 
 whether he takes care that some independent person takes 
 the active part as purchaser, and that all material circum- 
 stances are disclosed (b). 
 
 The avoidance of any contract which was entered into 
 by the fiduciary and another person jointly will extend to 
 the rights of the other person as well as to those of the 
 fiduciary (c), because it cannot be known whether either 
 the other person or the beneficiary would have been willing 
 to be bound if they had not supposed the fiduciary to be so. 
 
 Again, a capacity of receiving gifts is considered likely 
 to induce a party filling a confidential relationship to 
 neglect the duties attached to it except when stimulated by 
 gifts, and consequently the existence of such a relationship 
 invalidates any gift which the party who reposes confidence 
 may have made to the party in whom he reposed it (d), 
 even though the relationship be not strictly that of a 
 fiduciary but that (for example) of a solicitor (e), and 
 though no fraud or misrepresentation has been practised 
 or is suspected (/) ; but not if the relationship be severed 
 before the gift is made (g). 
 
 From the same reasons the law deduces this further 
 consequence — that a beneficiary is entitled to everything 
 of pecuniary value which his fiduciary has by means of 
 his fiduciary position acquired (h); for example, the Renewal 
 
 (a) Gover's Case, L. R. I C D. 182. 
 (6) New Sombrero Co. v. Erlanger, L. 
 R. 5 C. D. 118. 
 
 (c) Mc, Pherson v. Watt, H. L. 3 Ap. 
 276; Pooley v. Quitter, 2 D. G. J. 343-4. 
 
 (d) Sd. Vaughtonv. Noble, 30 Bea. 39. 
 
 (e) Morgan v. Minett, L. R. 6 C. D. 
 
 638 ; citing Tomson y. Judge, 3 Drew. 
 606, as containing an elaborate review 
 of the cases. 
 
 (f) Morgan v. Minett. 
 
 (g) Said Morgan v. Minett. 
 
 (ft) Aberdeen Town Council v. Aber- 
 deen University, L. R. 2 Ap. 554-5.
 
 CONFLICT BETWEEN DUTY AND INTEREST, &C. 195 
 
 of a Lease (a), Fishing Rights granted to him from a belief 
 that he is owner (&), Shares in a company obtained as a 
 consideration for becoming a director of it (c), or a profit 
 or douceur given to the fiduciary by one who is purchasing 
 from him on a sale made pursuant to his trust or authority 
 (d); and this applies whether the fiduciary in question be 
 a trustee (e), a factor (/), an executor (/), an executor 
 of his own wrong (/), a director (g) or promoter (A) of a 
 company (when the company is the beneficiary), a mort- 
 gagee (/), a devisee subject to charges (/) (when the char- 
 geantisthe beneficiary), a joint-tenant (/), a partner (/), or 
 an agent for sale (/) (at least if he possesses knowledge of 
 the property &c. beyond what would be necessarily 
 possessed by anyone living in the neighbourhood (/)); and 
 whether the beneficiary be an individual (k), a company (I), 
 a charity (m), or otherwise; and whether the transaction 
 by which the benefit was acquired be a bargain by which 
 risk is incurred («), or a gift (p); and whether the benefit 
 which the beneficiary seeks to recover be that which the 
 trustee &c. originally acquired by means of his fiduciary 
 position (p), or be something which he acquired indirectly 
 by (for example) trading with that (q); and though any 
 period however long has elapsed since the benefit was 
 acquired before the beneficiary commenced proceedings to 
 
 (a) Sandford v. Keech, (or Keech v. 286, qualified by Morgan v. Elford, L. 
 
 Sandford), 1 W. T. L. C. (4th Ed.) 44. R. 4 C. D. 322. 
 
 (6) Aberdeen Town Council v. Aber- (J) See L. R. 4. C. D. 384. 
 deen University, L. R. 2 Ap. 554-5. (k) SandJordv.Keech, 1 W.T.L.C.44. 
 
 (c) Said Carting's Case, L. R. C. D. (/) Curling's Case; Mc. Kay's Case. 
 128 fin. (m) Aberdeen Town Council v. Aber- 
 
 (d) Conceded as the general rule, deen University, L. R. 2 Ap. 544. 
 Morgan v. Elford, L. R. 4 C. D. 352. (»«) De Bussche v. Alt, L. R. 8 C. D. 
 
 (e) Sandford v. Keech, 1 W. T.L. C. 286. 
 
 (4th Ed.) 44; Aberdeen Town Council v. (o) Mc. Kay's Case, L. R. 2 C. D. 1, 
 
 Aberdeen University, L. R. 2 Ap. 544. where a bargain which the trustee had 
 
 (/) Lewin on Trusts (5th Ed.) 147-8, negotiated on his beneficiary's behalf, 
 
 1 53. was the motive of the gift. 
 
 (jO Carling's Case, L. R. 1 CD. (p) Aberdeen Toivn Council v. Aber- 
 
 128/h. deen University, L. R. 2 Ap. 544. 
 
 (/j) Mc. Kay's Case, L. R. 2 C. D. 1. (q) Sd. Carling's Case, L. R. 1 C. D. 
 
 (i) De Bussche v. Alt, L. R. 8 C. D. 126, /28.
 
 196 CONFLICT BETWEEN DUTY AND INTEREST, &C. 
 
 Exceptions. 
 
 Life-tenant i 
 (in at least 
 some cases) 
 witliin this 
 rule. 
 
 obtain it (a) (i); and though some device may have been 
 resorted to for evading the rule, (for example, a sale by 
 the fiduciary to a trustee for himself (a)) ; and though the 
 beneficiary has given to the party from whom the trustee 
 received the profit in question a release from any right 
 which he (the beneficiary) may have had to upset a tran- 
 saction in respect of which it was received (b) ; and though 
 the fiduciary incurred some risk in discharging his duties 
 as such, for which risk the benefit in question might be 
 considered a compensation (c); and even though a local 
 usage exist to the effect that the fiduciary may retain 
 such a benefit (d). But the protector of a settlement is not 
 deemed a fiduciary (e). And a fiduciary is not thus bound 
 to give to his beneficiary the profits derivable from a 
 business contract entered into by him on his own behalf 
 with another fiduciary on behalf of the beneficiary, at least 
 if the latter was also personally interested to an extent 
 sufficient to insure his exercising his judgment in good 
 faith (/). 
 
 A Life-tenant is not in general deemed a fiduciary for 
 the persons entitled under the settlement (g); consequently 
 he would not be so on principle within this rule, and there- 
 fore, if the owner of a leasehold settle it on one for life and 
 after his death for another, and the former obtain a 
 renewal, the estate, after the termination of the period 
 during which the original lease would (if unsurrendered) 
 have endured, ought to belong to the life-tenant and his 
 
 (i) In tliis case the period was 169 years, and the beneficiary was a corpo- 
 ration holding for a charity. But if an individual beneficiary and bis heirs 
 were, for an equal period, ignorant of the benefit acquired by the trustee, or 
 (though cognizant of it) unwilling to confirm it, the same rule would apply. 
 
 (a) Aberdeen Town Council v. Aber- 
 deen University, L. R. 2 Ap 544. 
 
 (6) Baynall v. Carlton, L. R. 6 C. D. 
 399-400. 
 
 (c) De Bussche v. Alt, L. R. 8 C. D. 
 286. 
 
 Of) L. R. 8 C. D. p. 317. 
 
 (e) 3 & 4 Wm. IV, c. 74, s. 36. 
 
 (/) Albion Steel Sfc. Co. v. Martin, L. 
 R. 1 C. D 580. 
 
 (</) Accordingly Dirconson v. Talbot, 
 L. R. 6. Ch. 34, 39, / 1-3.
 
 CONFLICT BETWEEN DUTY AND INTEREST, &C. 197 
 
 representatives, unless either he was also a fiduciary, (as 
 when the estate is conveyed to him upon trust for himself 
 during his life and afterwards for another, or when the 
 leasehold comes to him as executor of the settlor,) or the 
 settlor had a right to renewal (a), (in which case every 
 renewed lease, by whomsoever obtained, must be the 
 property of the original settlor and those deriving under 
 him); but instead of this the life-tenant of a leasehold who 
 obtains a renewal of it is held bound as universally as if he 
 were a trustee (b). But this has not been extended to the 
 case of a life-tenant of a leasehold purchasing the fee-simple 
 (c), though the lease was held under a corporation (d), 
 unless he be also trustee (e). 
 
 A corollary of this rule is that a fiduciary (/), and it 
 seems a life-tenant also (g), purchasing an incumbrance on 
 the trust property, is not entitled to recover, on account 
 thereof, more than he paid for it, although the amount of 
 the incumbrance may be more; but it is a general rule 
 that everyone may hold his legal rights as security for 
 his beneficial rights, and therefore such a fiduciary is 
 entitled to prove in the bankruptcy (h), or winding up (i), 
 of his beneficiary, for the whole amount (i), and to draw 
 dividends up to the amount which he has actually paid (i). 
 
 However, (by an extension of the principle that a third 
 person who adopts a contract is subject to the liabilities 
 attaching on it) the beneficiary is only entitled to take 
 advantage of the above rules on the terms of reimbursing 
 the fiduciary for the consideration he paid for the benefit 
 so acquired by him (a), and for the expenses which he 
 
 (a) Trumpet v. Trumper, L. R. 14 
 Eq. 296. 
 
 (6) Watersy. Bailey, 2Y. & C.Ch.219. 
 
 (c) Randall v. Russell, 3 Mer. 190. 
 
 (d) Hardman v. Johnson, 3 Mer. 347. 
 
 (e) Isaac v. Wall, L. R. 6 C. D. 706. 
 
 (f) Lewin on Trusts (5th Ed.) 227 
 (c)(d), 229 (c) (/«); and see Exp. James, 
 8 Vez. 337. 
 
 (<j) Hill v. Browne, Drur. 433. 
 
 (/») Cases referred to in re Gomersall, 
 L. R. 1 C. D. 141-2. 
 
 (») Re Imperial Land Co. exp. Lar- 
 king, L. R. 4 C. D. 566, was compro- 
 mised on these terms, hut the point was 
 not decided. 
 
 (j) Postlethwaite v. Lewthwaile, 2 J. 
 & H. 237 ; see also Harwell v. Barwell, 
 34 Bea. 371. 
 
 Therefore 
 Beneficiary 
 entitled to 
 profit by the 
 purchase 
 (made by the 
 Fiduciary &c.) 
 of an Incum- 
 brance at an 
 Under-value. 
 
 Beneficiary 
 taking advan- 
 tage of these 
 rules is 
 bound to 
 reimburse 
 Fiduciary and 
 the latter has 
 a lien.
 
 198 CONFLICT BETWEEN DUTY AND INTEREST, &C. 
 
 incurred in acquiring it (a); and the fiduciary is entitled, 
 
 pursuant to the principles discussed in a later chapter, to 
 
 a lien upon it for these sums (b). 
 
 Remaindermen There is a further Rule deduced from the same general 
 
 benefit by° ° P rmc ip^ e — namely that a release of an outstanding Right, 
 
 Release of obtained by a life-tenant (c), or by the party entitled after 
 
 Right obtained J w ■,,,,, 
 
 by a Life- his death (d), will, alike as regards the legal (c), and the 
 
 beneficial, estate (e), operate for the benefit (according to 
 
 their interests) of all who are interested in the property. 
 
 (a) BagnaU v. Carleton, L. R. 6 C. (c) Litt., s. 453. 
 
 D. 371; Lewin on Trusts (5th Ed.) (</) Litt., s. 452. 
 
 150 (c) to 151 (c). (e) Yem v. Edwards, 1 D. G. J. 598. 
 
 (6) Isaac v. Wall, L. R. 6 C. D. 706. 
 
 tenant.
 
 ( 199 ) 
 
 CHAPTER XXIV. 
 
 UNLAWFULNESS AND IMMORALITY AS AFFECTING THE 
 VALIDITY OF CONTRACTS, &C. 
 
 An unlawful or immoral purpose renders void a contract Effect of 
 
 entered into to promote it (a), even though the unlawfulness unlawful 
 r ^ ' ° purpose. 
 
 be only created by statute, and though the party who On a Contract. 
 
 is suing on the contract was himself indifferent to the 
 
 purpose, and merely actuated by the desire of gain, but 
 
 aware that the other party intended (and would by the 
 
 contract be enabled) to carry out the objectionable purpose 
 
 (b), and though the contract be supported by valuable 
 
 consideration of an unobjectionable character (b), or be 
 
 made by deed (c) and so require no consideration, and 
 
 though it be made both by deed and in consideration of a 
 
 valid disposition which, however, was itself intended for the 
 
 furtherance of the objectionable purpose (d). 
 
 An unlawful or immoral purpose renders void a disposition On a Dispo- 
 made to promote it (e) if the intention (as disclosed by the Sltl0n - 
 disposition), be that the estate shall not pass until some- 
 thing has been done for the accomplishment of the purpose 
 (e) ; but not if the intention be that the estate shall pass, 
 and that the purpose shall afterwards be accomplished, 
 although in this latter case any clause directing the accom- 
 plishment of the purpose (/), or directing that in the event 
 
 (a) Sykes v. Beadon, L. R. 1 1 C. D. 
 170; Raiding v. Coal Commrs. Ass., 43 
 L. J. M. C. Ill; Smith v. White, L. R. 
 1 Eq. 626; Pearce v. Brooks, L. R. 1 Ex. 
 213; Begbie v. Phosphate Sfc. Co., L. R. 
 10 Q. B. 491. 
 
 (6) Pearce v. Brooks. 
 
 (c) Anon. 3 A. & E. 868; Duvergier 
 v. Fellowes, 1 C. & F. 39, qualified by 
 
 Yak v. Rex, 6 B. P. C. 31, and by 
 Newman v. Newman, 4 M. & S. 66. 
 
 (d) Smith v. White, L. R. 1 Eq. 626. 
 
 (e) Re Mapleback exp. Caldecott, L. 
 R. 4 C. D. 150; Ayerst v. Jenkins, L. 
 R. 16 Eq. 275; Taylor v. Chester, L. R. 
 4 Q. B. 309. 
 
 (f) Ante p. 94.
 
 200 UNLAWFULNESS AND IMMORALITY, &C. 
 
 of it not being accomplished the estate shall return to the 
 disponor (a) or pass to another person (b), will be void. 
 But in applying this rule the legal and the beneficial estate 
 must be separately considered, for the intention may be 
 that the legal estate shall pass to the disponee in order to 
 enable him to accomplish the purpose, and yet that the 
 beneficial estate shall continue in the disponor unless and 
 until it be drawn out of him by the accomplishment of the 
 purpose, — in other words, that the estate shall be held on 
 trust to accomplish the purpose, and, subject thereto, for 
 the disponor, — and in such a case the disposition will be 
 quite valid as regards the Legal estate (c) but will be 
 inoperative on the Beneficial estate (c), and the disponor 
 will therefore be entitled, (as an incident of his continuing 
 beneficial estate,) to require a re-conveyance of the legal 
 estate (c): and this holds good though the subject be a 
 personal chattel {d), except that in this case the legal 
 "right of possession" occupies the place of the "legal 
 estate," and the legal "right of property" that of the 
 "beneficial estate" (d), a distinction which is probably one 
 of nomenclature only. 
 On a Revo- An unlawful or immoral purpose will not, (it has been 
 
 cation. thought,) invalidate a revocation (made to promote it) of a 
 
 will (e). 
 "What purpose Unlawful and immoral purposes are so numerous that I 
 rfeemed unlawful propose to define only those which are of a somewhat 
 In general. technical character, and the impropriety of which would 
 therefore not be clear if it were not established by decision. 
 Restraint on A purpose to restrain a person from following the 
 
 Religion. dictates of his conscience in the choice of a religion has 
 
 been recently (/) held lawful. 
 
 (a) Co. Litt. 206. And see generally (d) Taylor v. Bowers, L. R. 1 Q. B. 
 
 as to conditions subsequent, the leading D. 291. 
 
 case of Egerton r. L. Urownlow, 4 H. L. 1. (e) Occleston v. Fullalove, L. R. 9 Ch. 
 
 (6) Wilkinson v. Wilkinson, L. R. 12 162. 
 
 Eq. 604. (f) Hodgson v. Halford, L. R. 1 1 C. D. 
 
 (c) Symes v. Hughes, L. R. 9 Eq. 475. 959.
 
 UNLAWFULNESS AND IMMORALITY, &C. 
 
 201 
 
 Restraint on 
 Marriage. 
 
 But a purpose to Restrain Marriage was formerly consi- 
 dered to be objectionable. This doctrine is said to have been 
 introduced by the Ecclesiastical Courts, which had cogni- 
 zance of bequests of personal estate (a), and to have been 
 copied by them from the Roman Law, which, (on account 
 of the peculiar state of society prevailing under the 
 Empire,) endeavoured to encourage matrimony (b). In 
 modern times the tendency of decision has been to consider 
 such a purpose lawful, and it has been decided, that a 
 purpose to prevent the marriage of a Widow (c) or Widower 
 (d) is unobjectionable, and that a condition against even a 
 first marriage is unobjectionable when annexed to such a 
 gift as never came under the Ecclesiastical Jurisdiction, 
 (for example a gift of an estate of freehold (e),) unless it 
 appear that the prevention of marriage was the very objeCt 
 of the donor (e) and not merely the obvious consequence of 
 the condition attached by him. In other cases the validity 
 of such a purpose depends (/) on distinctions of a technical 
 character, which admittedly rest on no grounds of reason, 
 but simply (in each case) on the question whether its circum- 
 stances render it indistinguishable from those cases which 
 were decided at the time when restraints on marriage were 
 considered a substantial evil. A legacy of money to arise 
 from the sale of freeholds directed to be sold is considered 
 as falling under the rules applicable to bequests of which 
 the Ecclesiastical Courts had cognizance (g). 
 
 With a view to remove temptations to unchastity, the Unchastity: 
 law invalidates every gift, (whether by settlement or will or a? e lf ; t S° ate™* 
 otherwise,) made to future Illegitimate offspring (h) even offspring). 
 
 (a) Bellairs v., Bellairs, L. R. 18 Eq. 
 514-15. [510. 
 
 (b) Rellairs v. Bellairs L R. 18 Kq. 
 
 (c) Evans v. Rosser, 2 H. & M. 190; 
 Newton v. Marsden, 2 J. & H. 356; said 
 Allen v. Jackson L. R. 1 C. D. 399. 
 
 (d) Allenv Jackson L. R. 1 C. D. 399. 
 
 (e) Jones v Jones, 1 Q. B. D. 279. 
 
 (f) Scott v. Tyler, 1 W. T.L.C. (4th 
 Ed.) 144, aud notes, and see statement 
 
 of the decisions in Theobald on Wills, 
 311-15; and in 1 Smith's Real and 
 Personal. Chap. V. [510. 
 
 (<;) Bellairs v. Bellairs, L. R. 18 Eq. 
 
 (h) Said Occleston v. Fullalove, L. R. 
 9 Ch. 166, 177; said Hill v. Crook. L. 
 R. 6 H. L 278 / 18-19, 280 / 6; Blood- 
 well v. Edwards, Cro. El. 509 ; Metham 
 v. D. Devon, 1 P. W. 529, hoth approved 
 L. R. 9 Ch. 166, 171. 
 
 86
 
 202 UNLAWFULNESS AND IMMORALITY, &C. 
 
 though the parents may have contracted an invalid marriage 
 (a) and though affinity may be the only cause of its inva- 
 lidity (as in the case of marriage with a Deceased Wife's 
 Sister (a)). But it is not yet clear that the rule is not 
 confined to cases in which the gift in question tends to 
 induce the unchaste intercourse (as when it is communicated 
 to one of the intended parents not being the donor (b)). And 
 the rule does not invalidate a gift to offspring conceived 
 before the disposition is made (i), or, (in the case of a 
 revocable gift such as a bequest (c) (i)) conceived before 
 the gift becomes irrevocable, even though they be still 
 unborn (i); nor consequently a bequest to the testator's 
 own offspring (i), although such a gift may sometimes fail 
 of effect owing to the technical rule of construction, that, 
 in general, illegitimate offspring will not be included in a 
 gift to "children" unless the words express that they are 
 meant to be included (d), or owing to the rule next to be 
 stated. A gift which the rule invalidates as to some illegi- 
 timate offspring may be valid as to others, even though it 
 be given to them collectively as members of a single 
 class (e). 
 
 (i) The position in the text is, I think, home out by the dicta in a recent 
 appeal case (/), in which the Court disapproved of a decision (g) that a gift to 
 a child which could only take if born before the disposition became irrecovable 
 was invalidated by the fact that the child was not begotten until after the dis- 
 position had been made-, but the decisions only prove that the rule does not 
 invalidate a gift to a child born before the gift is made (h) though the gift be 
 not testamentary (h), or to a child begotten before the gift is made whether 
 born before {i) or after (j) it becomes irrevocable. The gift was testamentary 
 in the cases cited in note (A;) and the father was donor in those cited in note (/). 
 
 («) Occleston v. Fullalove, L. R. 9 Ch. (/) Occleston v. Fullalove, L. R. 9 Ch. 
 
 147; Crook v. Hill, L. R. 3 C. D. 773. 160-2, 171-3. 
 
 (b) Consistent with cases cited. (g) Howarlhv. Mills, L. R. 2 Eq.389. 
 
 (c) Crook v. Hill, L. R. 3 C. D. 773; (h) Metham v.D Devon, 1 P. W 529. 
 Occleston v. Fullalove, L. R 9 Ch. 160-7. (i) Gordon v. Gordon, 1 Mer. 1 4 1 -, 
 
 (d) Vurin v. Dorin, L. R. 7 H. L. 568; Occleston v. Fullalove, L. R. 9 Ch. 147. 
 Hill v. Crook, L. R. 6 H. L. 265; re (j) Crook v. Hill, L. R. 3 C. D. 773. 
 Aye's Trusts, L. R. 1 C. D. 282; Ellis {k) Occleston v. Fullalove; Gordon v. 
 v. Houston, L. R. 10 C. D. 236 ; re .Kerr's Gordon; Crook v. Bill. 
 
 Trusts, L. R. 4 C. D. 600. (/) Occleston v. Fullalove; Gordon v. 
 
 (e) Crook v. Hill, L. R. 3 C. D. 773; Gordon, 
 re Kerr's Trusts, L. R. 4 C. D. 600.
 
 UNLAWFULNESS AND IMMORALITY, &C. 
 
 203 
 
 The question who is the father of a Bastard is not per- 
 mitted to be made a subject of either direct or circumstan- 
 tial evidence (a), unless the unchaste intercourse be the 
 chief object of inquiry, as in cases of adultery, seduction, 
 or affiliation. Consequently a gift to a bastard conditionally 
 on his being the offspring of a specified man is void (b) ; 
 and a gift to such illegitimate offspring as a specified 
 woman may bear to a specified man is considered as thus 
 conditional (b) ; but a description of the object of a gift as the 
 child of a specified man is not construed as a condition when 
 the object is otherwise named or described sufficiently to 
 show who is meant, — in other words, such a gift will take 
 effect all the same though it should be found that the object 
 was not in fact the child of the person so specified; and 
 consequently a gift to a bastard, naming or identifying 
 him, is not invalidated by the circumstance that it adds a 
 description of him as the child of a specified man (c). 
 
 No analogous rule prohibits the investigation of the 
 question who is the mother of a Bastard (d). 
 
 But the question whether a Bastard has acquired the 
 reputation of being the offspring of even a specified man is 
 allowed to be inquired into: consequently a gift to a Bas- 
 tard or class of Bastards conditionally on his or their having 
 acquired such reputation is not necessarily invalid (e). 
 
 But the Rumour of the neighbourhood does not seem to 
 be admissible to prove this (/). Acknowledgment by the 
 man and his conduct in life are however sufficient (g), if, 
 (but only if,) occurring after the birth (h) of the child, or 
 at least after the father knew of its conception (h), and only 
 
 Inquiry into 
 Paternity of 
 Bastard. 
 
 Not enquiry 
 into Maternity 
 of Bastard. 
 Not enquiry 
 into the 
 Reputation of 
 the Paternity 
 of Bastard. 
 
 (a) Said Occleston v. Fullalove, L. R. 
 9 Ch. 163-4, where a reason, (which 
 however is not applicable to cases of 
 acknowledged concubinage,) is given. 
 
 (6) Said Occleston v. Fullalove. L. R. 
 9 Ch. 163-4, 167; Pratt v. Matthew, 22 
 Bea. 328, cited L. R. 9 Ch. 173. 
 
 (c) Thomson v. Eastwood, L. R. 2 Ap. 
 215. 
 
 (d) Said Occleston v. Fullalove, L. R. 
 9 Ch. 170-1. 174. 
 
 ( e) Occleston v. Fullalove, L. R. 9 Ch. 
 147- 
 
 (f) Suggested L. R. 9 Ch. 165. 
 
 (<7 ) Occleston v. Fullalove, L. R. 9 
 Ch. 165. 
 
 (Ji) Said Metham v. D. Devon, 1 P. 
 W. 529; suggested L. R. 9 Ch. 158-9.
 
 204 
 
 UNLAWFULNESS AND IMMORALITY, &C. 
 
 Simony. 
 In general. 
 
 Resignation 
 Bonds. 
 
 if occurring before or when the disposition becomes irrevo- 
 cable (a); but it is sufficient if the reputation be acquired 
 at any time before that moment, — (for example, in the case 
 of a testamentary disposition, at any time before the death 
 of the testator (&);) and when this acknowledgment and 
 conducl go the length of public Cohabitation with the 
 mother, and Registration of the infant as their offspring, 
 they are (it seems) too strong to be rebutted by a rumour 
 that some one else was the father (c) ; but the reputation of 
 paternity may be rebutted by proof that the child was born 
 during cohabitation of the woman with some other man (d). 
 Simony, or a corrupt presentation to an Ecclesiastical 
 Benefice, is, in some of its forms, illegal. It is illegal by 
 Statute to Admit for profit (other than the usual fees) any 
 person to any ecclesiastical benefice (e) ; or to corruptly 
 Resign or Exchange any living of which one is incumbent 
 (/); or, when any clergyman obtains ordination by paying 
 for it, to present him to a living within seven years there- 
 after (g) ; or to accept for profit the next presentation to a 
 living and be thereupon presented or collated (A), whether 
 one accepts it in one's own or in another's name (h). And 
 any engagement to Resign a living is (i) void ; unless it be 
 an engagement to resign in order that one person (or one 
 of two persons) specially agreed upon may be presented, 
 and be made after the 28th July 1828, but before presen- 
 tation of the contracting party, and be made in good faith, 
 and the persons specified (when there are to be two) be, 
 either by blood or marriage, related to the beneficial patron 
 (or to one of the beneficial patrons) as either uncle, son, 
 grandson, brother, nephew, or grandnephew, and the 
 
 (a) Said Occleston v. Fullalove, L. R. 
 9 Ch 171, /7 
 
 (b) Occleston v. Fullalove, L. R. 9 
 Ch. 147. 
 
 (r) Suggested L. R. 9 Ch. 164. 
 (ri) SaidL. R. 9 Ch. 168. 
 (e) 31 El., c. 6, s. 6, 7; King v. Box- 
 ford,-7 Ea 600. 
 
 (/) 31 El., c. 6, s. 8. 
 
 (<7)s. 10. 
 
 (A) 12 Ann. st. 2 (or 13 Ann.) c. 12, 
 s. 2. 
 
 (i) Fletcher v. Ld. Sondes, 1 Bli. N. 
 S. 144; B London v. Ffytche, 23 Han- 
 sard's Pari. Debates 876.
 
 UNLAWFULNESS AND IMMORALITY, &C. 205 
 
 agreement be in writing, and specially name or describe 
 the person or persons intended to be presented, and be 
 deposited with the Registrar of the Diocese &c. within two 
 months of its date (a). Such an agreement is specifically 
 enforcible (a). 
 
 An intention of presenting a particular person on the Purchase of 
 next avoidance does not appear to invalidate a purchase, Present, 
 nor to disentitle the purchaser to present that person, even 
 though the purchaser be a Clergyman intending to present 
 himself. At least a presentation of himself by a purchaser 
 who does not appear to have purchased with that intention 
 is valid, though he only purchased an interest for the life of 
 some other person (b), or even (it would seem) for his own 
 life (c) : but not if he purchased the next presentation (d) 
 only, or (it seems) any definite number of next presenta- 
 tions (e), or all such as should fall within a definite number 
 of years (e). 
 
 And, on account of the probability of simony, a purchase 
 of an advowson when there is no incumbent (/), or after 
 the incumbent has accepted another living (g) (although he 
 have not been instituted thereto (g), is void as regards the 
 next presentation (h), though valid as to the subsequent 
 presentations (»"); but a purchase while the incumbent is in 
 a dying state is not therefore invalid (/) even though both 
 parties are aware of it (_/). However, simony affecting the 
 presentation of a Clergyman does not invalidate a Lease 
 made by him unless the lessee knew of the simony when he 
 took the lease (k). 
 
 (a) 9 Geo. IV, c. 94. B. Lincoln, L. R. 10 C. P. 518. 
 (6) Walsh v. B. Lincoln, L. R. 10 C. (/") Baker v. Rogers, Cro. El. 788. 
 P. 518. (g) Alston v. Allay, 7 A. & E. 289. 
 
 (c) See the reasons for Walsh v. B. (h) Baker v. Rogers; Alston v. Atlay. 
 Lincoln, L. R. 10 C. P. 518. (0 Greenwood v. B. London, 5 Tau. 
 
 (d) 13 Ann., c. 12, s. 2. 727. 
 
 (e) Implied in the reasons given hy (i) Fox v. B. Chester, 1 D. & CI. 416. 
 the Court for its decision in Walsh v. 0) 1 Wm - & M -> c - 16 -
 
 206 
 
 UNLAWFULNESS AND IMMORALITY, &C. 
 
 Restraint of 
 Trade. 
 
 Encourage- 
 ment of 
 
 Litigation. 
 
 Champerty. 
 
 Covenants in restraint of trade are void when unneces- 
 sarily extensive. This doctrine is explained in the cases in 
 the note (a), and often comes under the notice of the 
 Property-lawyer, inasmuch as such covenants are often 
 annexed to land and buildings (b). 
 
 In the Middle Ages (c) great strictness was used in pre- 
 venting everything having a tendency to increase Liti- 
 gation, and in particular the transfer of Rights of Action ; 
 and a portion of this strictness still continues. 
 
 Champerty, that is, a sharing of the fruits of litigation 
 with those who have advanced money for, or assisted in, 
 the litigation, is so far contrary to the policy of the law 
 that an agreement beforehand to share them with such a 
 person is void (as tending to encourage litigation); whether 
 the agreement be, to give a share in the property expected 
 to be recovered (d), or an incumbrance upon it (e), or even, 
 (it seems,) to make a payment proportionate to the value 
 of the property (/) ; and even though the person who is to 
 share the fruits &c. be the Solicitor who is employed to 
 carry on the litigation (g), or be a Relative of the litigant 
 (h), or Interested in the suit (Ji); and especially if it be 
 agreed that the promisee is to procure evidence, for this 
 tends strongly to subornation of perjury (z). But it is 
 probable that the rule will not be extended, for the Privy 
 Council considers it is going beyond what the principles of 
 enlightened jurisprudence warrant, and therefore refuses to 
 incorporate it into the law of Colonies not governed by the 
 law of England, except in cases in which some improper 
 motive is shewn to have existed (j). 
 
 (a) Collins v. Locke, L. R. 4 Ap. 674. 
 Leather Cloth Co. v. Lorsont, L. R. 
 9 Eq. 345; Allsop v. Wheatcroft, L. R. 
 15 Eq. 59; and the leading case of 
 Mitchell v. Reynolds, 1 P. W. 182. 
 
 (6) Richards v. Revitt, L. R. 7 C. D. 
 224. 
 
 (c) Co. Litt., 214a. 
 
 (rf) 28 Ed. Ill, c. 1 1 ; 32 Hen. VIII, 
 c. 9, s. 3 ; H ilton v. Woods, L. R. 4 Eq. 432. 
 
 (e) Ram Coomar Src.v. Chunder Canto 
 #c, L. R. 2 Ap. 186. 
 
 (/) Re Attorney's &c. Act, L. R. 1 
 C. D. 573. 
 
 (</) Hilton v. Woods, L. R. 4 Eq. 432. 
 
 (h) Hutley v. Hutley, L. R. 8 Q. B. 1 12. 
 
 (i) See L. R. 8 Q. B. 115. 
 
 (j) Ram Coomar §c. v. Chunder Canto 
 #c, L. R. 2 Ap. 186.
 
 UNLAWFULNESS AND IMMORALITY, &C. 
 
 207 
 
 For a similar reason an agreement to furnish funds for 
 Litigation is generally void (a), unless the litigant be a near 
 Relative (b), or in some cases a Servant (c), of the party so 
 agreeing, or be Interested (d) in the litigation. 
 
 A disposition of, or agreement to dispose of, a right to 
 redress (by legal proceedings) a Wrongful act, is void, even 
 though the act in question be merely a fraud (e), or breach 
 of trust (/). But, by Statute, exceptions have been made 
 in case of a disposition (whether testamentary (g) or other- 
 wise (h)) of a right to recover a tenement from one who 
 has wrongfully entered on it: this however may be con- 
 sidered as not repealing an earlier enactment (i) which 
 makes it unlawful to buy or sell, get or have, any Pretenced 
 Right or Title, except from one who has been, (or who 
 claims under title consistent with some one who has been,) 
 in possession for the preceding year. 
 
 On similar grounds, an agreement to purchase property, 
 made for the purpose of acquiring a right to set aside (on 
 the ground of fraud, surprise, or undue influence) a charge 
 which the promised vendor could have set aside on those 
 grounds, is void (/) ; although a disposition actually made 
 with that object will (it seems) enable the purchaser to 
 do so (/r). And the legal- estate in a Right to bring an 
 Action even for breach of contract, could not, in ancient 
 times, be assigned; but, (partly by statute, and partly by 
 judiciary law,) so many exceptions have been made to this 
 rule, that the only trace of it which now exists is the rule 
 that the Assignee of, an ordinary chose in action is (in 
 
 Maintenance. 
 
 Sale &c. of 
 right of action 
 for Wrong. 
 
 Contract to sell 
 &c. property 
 to which such 
 right is 
 incident. 
 
 Sale &c. of 
 legal estate in 
 Right of action 
 for breach of 
 contract. 
 
 (a) Wallis v. D. Portland, 3 Vez. 
 494, 502; 32 Hen. VIII, c. 9, ss. 2, 4; 
 qualified by Findon v. Parker, 1 1 M. & 
 W. 675. 
 
 (6) Hutleyv. Hutley, L. R. 8 Q. B. 1 12. 
 
 (c) See Eiborough v. Ay res, L. R. 10 
 Eq. 367. 
 
 (rf) See Findon v. Parker, 1 1 M. & 
 W. 675 ; and 2 Ro. Ab. 115, cited there, 
 p. 678-9. [Ch. 164. 
 
 (e) De Hoghton v. Money, L. R. 2 
 
 (/) Hill v. Boyle, L. R. 4 Eq. 260. 
 
 (<;) 7 Wm. IV & 1 Vic, c. 26, s. 3. 
 
 (A) 8 & 9 Vic, c. 106, s. 6. 
 
 (i) 32 Hen. VIII, c 9, s. 2. 
 
 ( j) De Hoghton v. Money, L. R. 2 
 Ch. 164. 
 
 (k) See Dicconson v. Burrell, L. R. 1 
 Eq. 337, where, however, it does not 
 appear that this was the object of the 
 purchase.
 
 208 
 
 UNLAWFULNESS AND IMMORALITY, &C. 
 
 Transfer of 
 Condition. 
 
 Prodigality. 
 
 Rule. 
 
 general) subject to any Counter-claims which, at the time 
 when the party liable received notice of the assignment (a), 
 were subsisting in him against the assignor. 
 
 On similar grounds, a disposition of a Condition, though 
 unbroken, is, by judiciary law, ineffectual to vest it in the 
 disponee (b), but effectual to pass it out of the disponor 
 (b), so that the effect is to put an end to the condition (b); 
 but, by Statutedaw, the only conditions which are of fre- 
 quent occurrence, viz: those which are contained in Leases 
 and therefore annexed to reversions, will pass with the 
 Reversion (c) ; whether the disposition of the reversion 
 comprise the whole, or only the immediate part (d), of the 
 reversioner's interest, and whether it comprise the whole, 
 or only part (e), of the tenement. And if the reversioner's 
 interest itself be terminable, its union with the next later 
 estate in the property will not put an end to the condition 
 (/). And conditions of any kind can be testamentarily 
 disposed of (g). 
 
 The law, while unwilling to fetter the liberty of the sub- 
 ject as regards the expenditure of money, yet endeavours 
 to impose some check upon Prodigality (A), by drying up 
 the sources from which its funds are supplied. 
 
 Prodigality, therefore, on the part of one who is disposing 
 (or promising to dispose) of a Reversionary interest, for 
 (i), or as security for (_/*), a present advance, or is borrowing 
 money under circumstances which make it improbable 
 that he can repay it until the death of someone from whom 
 he has expectations (k), entitles the Prodigal, and after his 
 
 (a) Ante p. 154 (6), 156 Jin. 
 O) Litt 347. 
 
 (c) 32 H. VIII, c. 34. 
 
 (d) Co. Litt , 2 1 5a. 
 
 (e) 22 & 23 Vic, c. 35, s. 3. 
 
 (f) 8 & 9 Vic, c 106, s. 9. 
 
 (j») 7 Wm IV & 1 Vic, c 26. s. 3. 
 
 (/*) As to the Reason of the rule, see 
 Aylesfurd v. Morris, L. R. 8 Ch. 488, 
 492, 499. 
 
 («) See O'liorke v. liolingbroke, L. R. 
 
 2 Ap. 814, from the judgments in 
 which it appears that the cases on 
 unconscionable bargains with necessi- 
 tous persons are precedents as to those 
 with prodigals. And as to the former, 
 see Ante, p. 128 (/), 132 (c). 
 
 ( j) Miller v Cook, L. R. 10 Eq. 641. 
 
 (*) E Aylesford v Morris, L. R. 8 
 Ch. 484 ; Tyler v. Yates, L. R. 6 Ch. 
 665, where, however, there were also 
 mortgages on reversions.
 
 Rule). 
 
 UNLAWFULNESS AND IMMORALITY, &C. 209 
 
 death his heir (a), to avoid the transaction, even though the 
 prodigal be of mature age (b), and be a man of the world 
 fully understanding his own interest (b), and though it was 
 himself (not the other party) who first commenced the 
 negotiation (c), and though he had in vain applied to others 
 (d), and though he urgently entreated that the advance 
 might be made (e), and though accounts have been settled 
 on the assumption that the transaction was valid (/). 
 
 And the rule will be peculiarly applicable when the 
 reversionary interest is Contingent (i) ; or when it is a mere 
 Hope of Succession ; or when the Prodigal gives his Per- 
 sonal security only (g), (at least if he have great expec- 
 tations (g)). 
 
 Lord Cottenham disapproved of the rule (h) and (Attempts to 
 endeavoured to restrict it to cases in which the estate R^ 10 * the 
 dealt with was technically, as well as substantially, rever- 
 sionary; but this decision cannot be relied on (i). Lord 
 Brougham, as we have seen (/), qualified (k) in some 
 degree the corresponding rule respecting necessitous per- 
 sons, but the qualification which he introduced seems 
 inapplicable to the case of a prodigal. His decision has, 
 however, been thought to imply that fraud on the parent 
 &c. from whom the necessitous person or prodigal expects 
 to derive the property which he is dealing with or on which 
 his creditor relies is the ground of the rule, and therefore, 
 that if the former be cognizant of the transaction the rule 
 
 (i) In Miller v. Cook. L. R. 10 Eq. 641, the Prodigal seems to have heen 
 deceived into believing that his estate or Interest was contingent, though in fact 
 it was not so. 
 
 (a) Evans v. Cheshire, Hov. Sup. to (d) E. Aylesford v. Morris, L. R. 8 
 
 Vez. 300. Ch. 496. 
 
 (6) Bromley v. Smith, 26 Bea. 661, (e) Croft v. Graham, 2 D.G.J. S. 156. 
 
 663-4. (f) Croft v. Graham, 2 D. G.J. S. 155. 
 
 (c - ) E. Aylesford v. Morris, L. R. 8 (g) As in E. Aylt-sford v. Morris, L. 
 
 Ch. 484. and see Tyler v. Yates, L. R. R. 8 Ch. 484. 
 
 6 Ch. 665; where, however, the Court (A) Webster v. Cook, L.R. 2 Ch. 542. 
 
 said that the Prodigal had been "brought (i) Ante, p. 130, n.(i). 
 
 as a victim," p. 669; and see the cases (j) Ante, p. 129 (ft), 
 
 deciding this as regards necessitous (k) King v. Hamlet, 2 M. & Ke. 456. 
 persons, Ante p. 129 (</). 
 
 27
 
 210 
 
 UNLAWFULNESS AND IMMORALITY, &C. 
 
 Conditions of 
 the Rule. 
 
 Prodigality 
 presumed from 
 Harshness and 
 from Rever- 
 sionary 
 character of 
 Subject. 
 
 What stipula- 
 tions deemed 
 harsh. 
 
 is inapplicable. Such a doctrine has since been disap- 
 proved (a), and, if correct, would establish, not that the 
 mortgage by the prodigal is void, but that the gift from 
 the parent to the prodigal is so. 
 
 When advantage is taken of the rule the lender or 
 purchaser is entitled to a lien for the sum advanced (b) and 
 for simple interest at the rate of 5 (c) per cent. Conse- 
 quently, when the transaction is a mortgage, the invalidity 
 is confined to any harsh provisions in it, and even a sale 
 would probably not be set aside if full value were given 
 unless the vendor had a special affection for the particular 
 property in question, because, as the consideration would 
 have to be returned, the relief would be practically useless. 
 
 The mere Harshness of the terms on which money is 
 paid for, or advanced on the security of, a Reversionary 
 Interest, seems to be considered sufficient proof of prodi- 
 gality (d), but corroborative circumstances have in general 
 occurred, such as, Youth (e), Recourse to a professional 
 Money-lender (/), Concealment from the borrower's Father 
 (g), or the probability that a larger sum might have been 
 obtained in the open Market (h). 
 
 The terms which will be deemed harsh seem to be the 
 same as in the case of a disposition made by a necessitous 
 person (7), except that the obtaining of Advice will not 
 prevent terms from being deemed harsh which would other- 
 wise have been so deemed, but yet it will be admissible as 
 some evidence that prodigality does not in fact exist (/). 
 
 (a) E. Ayles/ord v. Morris, L. R. 8 
 Ch. 491; Sugd. V. P. (11th Ed.) 316; 
 Id. (14th Ed.) 277; Sugd. H. L. 70; 
 O'Rorke v. Bolingbroke, L.R.2 Ap.828- 
 9, 830. 
 
 (6) E. Ayhsford v. Morris, Tyler v. 
 Yates. 
 
 (c) E. Ayles/ord v. Morris, L. R. 8 
 Ch. 485, 487; Tyler v. Yates, L. R. 6 
 Ch. 667. 671. 
 
 (rf) E, Ayles/ord v. Morris, Tyler v. 
 Yates, Miller y. Cook. 
 
 (e) E. Ayles/ord v. Morris, L. R. 8 
 Ch. 484; Tyler v. Yates, L. R. 6 Ch. 
 
 663; Miller v. Cook, L. R. 10 Eq. 641 ; 
 Cro/t v. Graham, 2 D. G. J. S. 155. 
 
 (f) Tyler v. Yates; Cro/t v. Middleton; 
 Miller v. Cook, E. Ayles/ord v. Morris. 
 
 (g) E. Ayles/ord v. Morris, L. R. 8 
 Ch. 484; Tyler v. Yates; Cro/t v. Mid- 
 dleton. 
 
 (h) Tyler v. Yates, L. R. 6 Ch. 670-1. 
 
 (i) Ante. p. 130. 
 
 O") p. Ld. Selborke in Ayles/ord v. 
 Morris, L. R. 8 Ch. 491-2. 
 
 (ifc) King v. Hamlet, 2 M. & Ke. 456, 
 as interpreted in O'Rorke v. Boling- 
 broke, L. R. 2 Ap. 828.
 
 ( 211 ) 
 
 CHAPTER XXV. 
 
 TECHNICAL RULES AS AFFECTING THE VALIDITY OF 
 DISPOSITIONS, &C. 
 
 In (probably) every system of Law there exist rules which Generally. 
 are not founded on any reasons applicable in the present Tueir origin. 
 state of Society. Some of these rules originated in a 
 different state of Society, in which reasons for them did 
 exist ; others arose from a misunderstanding on trie part of 
 later Judges of the decisions of their predecessors; others 
 from lack of foresight on the part of earlier Judges and the 
 consequent establishment by them of rules which, though 
 not productive of any ill consequences in the cases in 
 which they were first applied, yet, when applied in other 
 cases, (as later Judges thought themselves bound to apply 
 them,) proved equally unjust and unreasonable; and others 
 again from causes of which we are now ignorant, as for 
 for example, the "Rule in Shelly's Case" (i), the origin of 
 which may be considered the "Homeric Question" of law, 
 so many are the learned Judges and Text-writers who have 
 thought it necessary to search for it, and so fruitless have 
 been their efforts. 
 
 Such Rules, having been once established, are very How they 
 properly retained by the Courts, because judiciary legis- aW-ated 
 lation is necessarily retroactive, and retroactive legislation 
 in such a case would transfer estates which have been 
 dealt with in accordance with these Rules to other persons 
 than those who heretofore were the owners ; but the legis- 
 lature which refrains from abrogating them cannot be 
 exonerated from the charge of a grave dereliction of duty. 
 
 (i) So called because discussed in Shelley's Case, 1 Co. 93 b. It is explained 
 below in Chap. XXVII.
 
 212 TECHNICAL RULES, &C. 
 
 Ignorance of them may, however, be in part the cause of 
 this seeming supineness, and I have tried to make the 
 following statement intelligible to laymen, in the hope that 
 a Science which nature has already sufficiently incumbered 
 with luxuriance of detail may be freed from these wanton 
 and unnecessary additions. 
 Springing One of the rules in question is, that a limitation of the 
 
 whenVoid legal estate as from a Future time, not preceded by any 
 
 other limitation, is void (a). This rule applies to Chattels 
 not yet in existence (b), or not yet belonging to the disponor 
 (b), (unless they be the Fruit of property already belonging 
 to him (c),) and to Copyholds (d), and to Incorporeal tene- 
 ments (e), but not to Chattels already owned by the 
 disponor (/), nor to Chattel Interests in tenements unless 
 the time from which the disposition is to take effect be 
 uncertain (/), nor then if the period during which it is to 
 continue be certain (g), nor to dispositions by which a new 
 Chattel interest in a tenement is carved out (h), nor to 
 dispositions by which a new Incorporeal hereditament is 
 created (/), nor to dispositions affecting only the Beneficial 
 estate though so framed that the law will immediately 
 transfer the legal estate to it (J), nor to Testamentary dis- 
 positions (k). And, in the application of this rule to 
 limitations of a tenement, chattel interests, subsisting 
 therein or carved out by the disposition which contains 
 
 (a) Roe v. Tranmarr, Willes 632; surrender to such uses as he shall ap- 
 
 Callard v. Callard, Cro. El. 344; Bar- point King v. Oundle, 1 A. & E. 283. 
 
 wick's Case, 5 Co. 93h. (e) 44 Ed. Ill, 144, cited in Evans v. 
 
 ^b) Lunn v. Thornton, 1 C. B. 379; Thomas, Cro J. 172; 27 H. VIII, 16, 28. 
 
 sd. Hotroyd v. Marshall, 10 H. L. 191; (/) Kingswell's Case, Anderson 122. 
 
 Wentworth's Office of Executor 28. (j/) Anon. Ld Kaym. 737. 
 
 (c) Grantham v. Haicley, Hob. 172-, (A) Bp. Bath's Case, 6 Co. 34b; Bar- 
 Authorities cited in Lunn v. Thornton, ivick's Case, 5 Co. 93b. As to what a 
 and in 14 Vin. Ab. 50, 72, sqq. Chattel Interest is, see Ante p. 4, 10. 
 
 (rf) Litt. Rep. 26; Simpson v. Sothem, (i) 8 H. VII, 2, cited 14 Vin. Ab. 
 
 2 Buls.272; the opinionin Calth. Read- 50 pi. 5; sd. Fearne C. R. 520. 
 
 ing cited in 6 Vin. Ab. 59 must have (j) 1 Sand. Us. 136-7; Koe v. Tran- 
 sferred to a condition subsequent. A marr, Willes 682; qualified by Yelverton 
 surrender to the use of the surrenderor's v. Yelverton, Cro. El. 401. 
 will was an exception, Pike v. While, (fc) Pay's Case, Cro. El. 878. 
 
 3 13. C. C. 286, and so it seems is a
 
 TECHNICAL RULES, &C. 218 
 
 the limitations, are left out of account (a), so that, if I limit 
 the legal estate to A for years and subject thereto to B 
 upon contingency, the limitation to B is void (a) unless it 
 be for a Chattel interest (b). But if the limitation to B be 
 not contingent, the law says that the freehold is already 
 in him (c), from which it seems to follow that if the pre- 
 vious limitation should turn out to be void or should come 
 to an end B would immediately become entitled in pos- 
 session. But it must not be inferred that this result 
 follows when the previous limitation is not a chattel 
 interest (d). 
 The law deduces from the rule now under discussion Vested 
 
 this corollary, — that a limitation of the legal estate after a K ® rnau,der 
 
 J ° after an estate 
 
 previous void limitation is itself void (d), unless one of the which fails 
 
 circumstances which create an exception to the rule occurs, 
 
 as that the disposition is Testamentary (e). Nor does this 
 
 corollary hold when the subsequent limitation affects only 
 
 the Beneficial estate (though it be so framed that the law (/) 
 
 will transfer the legal estate to it (g). But the fact that the 
 
 previous limitation comes to an end prematurely (h), or 
 
 even that it is made by one who merely holds possession 
 
 wrongfully (i) and is therefore void as to the right, does 
 
 not invalidate the subsequent limitation. 
 
 When the previous limitation is wrongful the property Who entitled 
 
 is to be held during its continuance by the rightful owner } eT fail " re 
 ° j b of preceding 
 
 (i). When it ends prematurely, and the disposition affects estate. 
 .111 i • i (When Re- 
 
 tne legal estate, and is not testamentary, the property, as mainder accel- 
 
 long as it would have continued, belongs, if the estate be erated )- 
 
 for a life, to the representatives of the holder (j), if not, 
 
 when the subject is corporeal, to the person who first enters 
 
 (a) Fearne C. R. 23-4, qualified by (/) 27 H. VIII, c. 10. 
 
 id. 21-3, 24. (g) Cases in Vin. "Remainder" (C). 
 
 (6) Fearne C. R. 285 sgq. (A) Jull v. Jacobs, L. R. 3 C. D. 703. 
 
 (c) Litt., s. 60. (i) Co. Litt. 298a. 
 
 (rf) See below p. 214 n. (i). (J) 7 Wm. IV & 1 Vic, c. 2C, s. 6; 
 
 (e) Sd. Paget's Case, 1 Leo. 197, 14 Geo. II, c 20, s. 9; 29 Car. II, c. 3, 
 
 cited Chedington's Case, 1 Co. 153a. s. 12.
 
 214 
 
 TECHNICAL RULES, &C. 
 
 Shifting 
 limitation 
 when void. 
 Limitation 
 other than 
 Condition. 
 
 into possession (i), and when it is incorporeal, to the 
 person out of whose land it issues (a). But if the dispo- 
 sition affects the Beneficial estate only, (though under such 
 circumstances that the law will transfer the legal estate to 
 it,) the grantor is to hold till the subsequent limitation 
 takes effect (b), unless the legal estate has been transferred 
 to the use of the party to whom the beneficial limitation is 
 made, in which case (b), as also when the disposition even 
 of the legal estate is Testamentary (c), the subsequent 
 limitation is accelerated. The rule that on failure of a 
 previous limitation the subsequent one is accelerated 
 extends to a testamentary disposition of a Chattel (d), or of 
 a Chattel interest (d), owned by the testator, and must, on 
 principle, (as we have already (/) seen,) extend to a non-tes- 
 tamentary disposition of the legal estate, by which one who 
 has a freehold carves out a chattel interest and subject 
 thereto limits the remainder. 
 
 Another rule is, that a limitation of the legal estate as 
 from a future time to one person, preceded by a limitation 
 of it to another, but so framed as to cut short that prece- 
 ding limitation before the time when it would otherwise 
 have expired, is void, so that a limitation to A and his heirs 
 (g), or to A for life (/?), provided that on a specified event 
 the estate shall shift to B, operates as if the proviso had 
 
 (i) This was the rule before the Statutes when one who held for another's 
 life an estate not transmissible to his representatives died intestate A like rule 
 whenever the previous limitation ends prematurely would accord with the rule 
 that when the previous limitation is void the subsequent one though vested is also 
 void. Nor can I find any trace of a contrary doctrine. 1 he question can very 
 rarely arise, but Coke gives an instance of it, namely, when the previous 
 limitation is to an Infant, who refuses after full age. He cites no case from 
 which a solution of the difficulty might be sought. 
 
 (a) Co. Litt., 298a. 
 
 (6) SA.Chediny ton's Case, 1 Co. 153a. 
 
 (c) Jull v. Jacobs, L. R. 3 C. D. 703; 
 
 is void as too remote. 
 
 (d) Co. Litt, 298. 
 
 (e) Chedingtoris Case, 1 Co. 155; 
 yet in Moneypenny v. Dering, 2 D. G. M. Eveslaff v. Austin, 19 Bea. 591 ; Jull v. 
 G. 170, it was held that a Remainder Jacobs, L. R. 3 C. D. 703. 
 
 after an estate tail is not accelerated by (f) A ute, p. 2 1 3 (rf). 
 the invalidity of the estate tail though (g) Sandars' Uses, 144. 
 it be limited by will and though the (h) Sandars' Uses, 150. 
 consequence of the decision be that it
 
 TECHNICAL RULES, &C. 
 
 215 
 
 been left out. This rule applies to Chattels (a), to Chattel 
 interests (a), and to Incorporeal hereditaments even on 
 their creation (b) ; but it does not apply to Copyholds (at 
 least when the shifting clause is to operate only on the 
 appointment of some person (c)), nor to limitations carving 
 out Chattel interests (i), nor to dispositions affecting only 
 the Beneficial estate (though so framed that the law will 
 transfer the legal estate to it (d)), nor to Testamentary 
 dispositions (e), nor to clauses defeating the whole dispo- 
 sition and thus revesting the property in the disponor 
 himself or his representatives (/) (which are termed "Con- 
 ditions subsequent"). And it is doubtful whether it applies 
 to dispositions made by Indenture since ist October, 
 
 i8 4 5, (g). 
 
 A Condition subsequent can only be taken advantage of 
 by Re-entry (h), except in a few cases in which re-entry 
 is impossible (z), and except when the estate to be 
 defeated is a chattel interest (j). 
 
 Another rule is that a Limitation over of the legal estate 
 in a Chattel (k), (or in a Chattel interest which the dispo- 
 nor has in a tenement (/)), following a prior limitation of it 
 contained in the same disposition, is void, even though the 
 subsequent limitation be not intended to cut short the 
 prior one but to await its natural expiration. This rule 
 
 Condition 
 subsequent. 
 
 (IIow a 
 Condition 
 
 subsequent 
 may be taken 
 advantage of.) 
 
 Limitation over 
 of a Chattel, 
 when void. 
 
 (1) This seems clear, for if one having the freehold limits the estate to A for 
 years, and subject thereto to B for years, these are two distinct terms of years 
 (m), and if a proviso be inserted to terminate the former prematurely it is valid 
 (n), and the latter may then begin. 
 
 (a) See next rule. 
 
 (6) Buckhurst Peerage, L. R. 2 Ap. 1 ; 
 Gilbert on Rents, 60. 
 
 (c) King v. Oundle, 1 A. & E. 383. 
 
 (d) 1 Sand. Uses, 144. 
 
 (e) Fearne Ex. D. 386 sqq. 
 
 (f) Co. Litt., 201 sqq.; See also 
 Fearne, C. R. 270 sqq. 
 
 (g) 8 & 9 Vic, c. 106, s. 5, whicli 
 uses the word "Condition" as well as 
 " Covenant." 
 
 (h) Co. Litt., 218a. 
 
 (;') Co. Litt., 218a sqq. 
 
 (j ) Pennant's Case, 3 Co. 65a modified 
 by Rede v. Farr, 6 M. & S. 121. 
 
 (it) Fearne C. R. 404; D. Norfolk's 
 Case, 3 Ch. Ca. 32. 
 
 (/) Smith, R. & P. 324. 
 
 (m) Corbet v. Stone, Raym. 140, 150. 
 151. 
 
 (n) Pennant's Case, 3 Co. 65a.
 
 21G 
 
 TECHNICAL RULES, &C. 
 
 (Proposed 
 extension of 
 the rule 
 discussed). 
 
 applies to Ships (a) and to Stock though both are held by 
 documentary title, but it seems to be confined to cases in 
 which the prior limitation is vested or depends on a con- 
 tingency which afterwards happens, and it does not apply 
 to a disposition of the Beneficial estate (b), nor to a Testa- 
 mentary disposition of a chattel interest in a tenement (c), 
 nor does it extend to limitations by which new Chattel 
 interests in a tenement are carved out, for each of such 
 limitation is considered as creating a distinct estate (d), nor 
 is there any corresponding rule respecting estates (not 
 being chattel interests) in a Copyhold (e). Some Law 
 Reformers think it desirable that this rule should be exten- 
 ded to every limitation of the legal estate in any kind of 
 property, as they consider that a Register of title could 
 then be more easily worked and sales &c. be facilitated, 
 but I cannot see that so technical a rule is necessary to 
 secure this advantage. I rather think that every limitation 
 should be as valid in respect to the legal estate as in respect 
 to the beneficial except in certain cases of moveable 
 chattels, and that if a record of title be requisite the owner 
 should be permitted to register the most complicated limi- 
 tations, but should, whenever their complexity rendered 
 the registration unduly expensive, have the option of regis- 
 tering the perpetual estate in the name of a trustee. Such 
 a law would not place the slightest difficulty in the way of 
 alienation, for if the persons whose names appeared upon 
 the Registry were able to convey they could do so as 
 effectually as a single trustee, and if they were not the 
 impediment would be no greater than that which exists 
 when stock is vested in a trustee, who dare not sell unless 
 he either is authorized to do so by the terms of his trust 
 (which he might equally be though the trusts appeared on 
 
 (a) 17 & 18 Vic, c. 104, s. 43, 55. 
 
 (6) See D. Norfork's Case, 3 Ch. Ca. 
 32, and as to a testamentary disposition, 
 see Fearne, C. R. 402, 404. 
 
 (c) Fearne, C. R., 402; D. Norfolk's 
 Case. 
 
 (d) Corbet v. Stone, Raym. 140, 150, 
 151. 
 
 (e) Doe v. Wilson, 4 B. & A. 303.
 
 TECHNICAL RULES, &C. 217 
 
 the register,) or is satisfied that the beneficiaries are 
 competent and willing to confer this authority. Indeed 
 the plan I suggest would, if the record conferred an inde- 
 feasible title, render investigation of the title as unnecessary 
 on the purchase of a partial interest as it now is in the 
 ordinary case of a purchase of stock from the absolute 
 owner. 
 
 Another rule seems to be that the legal estate in a per- Limitation of a 
 sonal Chattel cannot be limited for a terminable period (a), terminable 
 
 Another rule, (founded on some peculiarities which, when P eriod - 
 
 ... Contingent 
 
 the rule arose, existed in the procedure of the Courts, and Remainder, 
 
 would but for the rule have made it difficult for one who when voicL 
 was wrongfully deprived of his property to recover it,) is, 
 that a Contingent Remainder, (that is, a limitation intended 
 to take effect only if a specified event should happen and 
 only after the expiration of the period which, by a Clause 
 in the same disposition limiting a preceding estate other 
 than a Chattel interest, is prescribed for the duration of 
 that preceding estate, — a point which distinguishes it from 
 a Shifting Clause (b),) will become void unless the event 
 happen before the preceding estate terminates {c). This 
 rule applies to Testamentary dispositions (d), and to limi- 
 tations of the Beneficial estate when so framed that the 
 law will immediately transfer the legal estate to it (e), 
 and it applies though the remainder depends on an 
 event certain to happen at some time (/), and probably 
 though it depends on the arrival of a specified time (as 
 when the limitation is to B from ten years hence but not 
 to fall into possession until the termination of a previous 
 life estate limited by the disposition), for a limitation which 
 can be construed as a contingent remainder is never to be 
 construed as a shifting clause (g). But it does not apply 
 
 (a) Sd. Hide v. Man, Cro. Car. 505. (e) Sugd. Pow. (8th Ed.), 17 pi. 24; 
 (6) See the definition, Fearne, C. R. 3. Davies v. Speed, Show., P. C., 104. 
 
 (c) Fearne, C. R., 307, 312; Cunliffe (f) Fearne, C. R., 8. 
 
 v. Brancker, L. R. 3 C. D. 393; Brack- (g) See Fearne, C. R., 386, 395; 
 enfordv. Gibbons, L. R. 2 C. D. 419. Brackenford v. Gibbons, L. R. 2 C. D. Q q 
 
 (d) Doe v. Morgan, 3 T. R. 763. 419.
 
 218 TECHNICAL RULES, &C. 
 
 to a limitation of the Beneficial estate when not so framed 
 as above mentioned (a), nor to a limitation contained in a 
 non-testamentary disposition executed or in a testamentary 
 disposition executed or republished after the 2nd August 
 1877, and which would, but for the existence of a previous 
 estate, have been valid as an executory limitation (b), — a 
 qualification which leaves the rule in force as to limitations 
 of the legal estate made by a non-testamentary disposition 
 except when made through the medium of uses, and as to 
 testamentary dispositions made before 2nd August 1877 
 by one who dies after that day. 
 
 Condition of Technical rules also exist with respect to legal conditions 
 
 Enlargement. r t^ 1 1. 1 \ 
 
 & of Enlargement {c). 
 
 Limitation to a Another rule is generally understood to be, that a limita- 
 
 orunascer-° rn ^ on °^ tne earuest legal estate conferred by the disposition, 
 
 tamed, when to a person who is not born and ascertained at the time 
 void. .',..,, 
 
 when the disposition is made, is void, unless testamentary. 
 
 A standard author, indeed, states (d) that he "confidently 
 presumes" that no such doctrine exists, but I can- as confi- 
 dently assert that it would never occur to a conveyancer to 
 frame such a limitation as this rule would invalidate. Nor 
 is the rule un vouched by authority, — for Coke (e) enume- 
 rates as one of the requisites of every deed "a party able to 
 be contracted with," and a still older dictum (/) impliedly 
 recognizes the rule, while a later one declares it applicable 
 to uses on the ground that it is applicable to legal limitations 
 (g). And though these authorities seem meagre, it must be 
 remembered that the question could scarcely ever arise. 
 For in most cases the limitations which it forbids would be 
 invalidated by one of the rules already discussed; and 
 besides, — if the disposition were made by a Feoffment (h) 
 
 (a) Lewin on Trusts (5th Ed.), 67-8 ; (d) Lewis' Perp., 603. 
 Eddel's Trusts, L. R. 11 C. D. 559. (e) Co. Litt., 35b. 
 
 (6) 40 & 41 Vic, c. 33. (f) Lib. Ass. I pi. 1 1. 
 
 (c) Fearne, C. R., 279-80, 338-9; 1 (g) Frederick v. Frederick, Cro. El. 
 
 Co. 84; Plessinglon's Case, 6 Rich. II, 334. 
 referred to below. (A) See 4 Leo., 21, 188.
 
 TECHNICAL RULES, &C. 219 
 
 Fine or Recovery the formalities used would insure that 
 the disponee should be born and ascertained ; if it were a 
 Partition or Exchange both parties must have been dispo- 
 nors ; a Release (a) operated for the benefit of all, according 
 to their interests, who held the property, and of these the 
 first who held any other than a Chattel interest was neces- 
 sarily born and ascertained, for if not his estate would have 
 been a contingent remainder without any preceding freehold 
 estate and therefore void as we have seen (b) ; a Chattel 
 interest in possession was scarcely ever limited to any but 
 one who intended to Farm the land ; a Surrender brought 
 to an end the estate surrendered, and thus, under the rule 
 already stated (b), made void all estates (except chattel 
 interests) intervening between it and the earliest of those 
 limitations which were free from contingency ; a Confirm- 
 ation (when not made by Indenture) may have been an 
 exception, but it merely precluded the confirmor from 
 disturbing an existing estate. There is authority that the 
 rule applies to a grant (c) or surrender (d) of a Copyhold, 
 and to a Lease (e). But the rule does not extend to a 
 disposition affecting merely the Beneficial estate (unless so 
 framed that the law will transfer the legal estate to it (/),) 
 nor to a Testamentary disposition (g). 
 
 And not only is the above rule supported by considerable Limitation by 
 
 authority, but another which seems to be derived from it Inden ' ur< r t0 
 
 J ' one who is not 
 
 is unquestionable, viz : that a Limitation of the legal a party, when 
 estate, made, by a deed in which two or more persons are 
 named or referred to (i) as parties of different parts, to any 
 one who is not so named or referred (h) (i), or who, though 
 
 (i) It was sufficient that they should be referred to (t) though this point has 
 even recently been much discussed (j). 
 
 (a) Litt., 452. (7) Bacon on Uses, 42 . 60 ; sd. Blood- 
 lb) Ante, p. 217 (c"). well v. Edwards, Mo. 402 (Ca. 602); 
 
 (c) Coke's C. Copyholder, 49, fo. 35. Frederick v. Frederick, Cro. El. 334. 
 
 (d) Allen v. Nash, Brownlow, 127; (g) Fearne, C. R., 429n. 
 
 and see Coke, C. C. 49, fo. 35, and (h) Sd. Gilbey v. Copley, 3 Lev. 139. 
 
 Supplement 67, fo. 1. (i) Trecarram v. Friendship, 4 Lev. 64. 
 
 (*) Sd. 3 Lev. 32, (Ca. L.) \j) Gresty v. Gibson, L. R. 1 Ex. 112.
 
 220 
 
 TECHNICAL RULES, &C. 
 
 Limitation 
 over after 
 an estate 
 in Fee, when 
 void. 
 
 Terminable 
 Fee, whether 
 allowed. 
 
 so referred to, is not then born (a) and ascertained (b), is 
 void, if it be the first (c) limitation in the deed. This rule 
 never extended to deeds describing only one person, or 
 several in the same interest, as party (d), nor does it apply 
 to a disposition of a hereditament by any deed executed 
 since ist October 1845 (e), but I state it here as affording 
 evidence of the existence of the rule from which I think it 
 was derived. Both were probably meant to prevent pro- 
 perty from continuing too long inalienable or of uncertain 
 Ownership, and we shall see further on that a knowledge 
 of them is requisite to a discussion of the extent of the rule 
 against Perpetuities. 
 
 Another rule is, that a Limitation of the legal estate, to 
 take effect on the expiration of a preceding limitation of 
 the Fee in it, is void (/), whether the preceding limitation 
 be in Fee-simple (g) or in Fee Conditional (h). This rule 
 applies though the previous limitation (i ) be so framed that 
 it must terminate on the happening of a specified event; 
 but not if it be so framed that it must terminate on the 
 death of a specified person, or at a specified time, (for then 
 it is not deemed a fee-simple at all but an estate for life (j) 
 or a chattel interest (k) as the case may be;) nor to a 
 limitation of the Beneficial estate (7) (though so framed 
 that the law will transfer the legal estate to it (tn)), nor 
 when the disposition is Testamentary (m). Nor does the 
 rule extend to a limitation to take effecl on the expiration 
 of a limitation in tail («). 
 
 Another rule has been sometimes alleged to be, that 
 
 (a) Stephens's Case, Owen 152. 
 (6) Sd. Trecarram v. Friendship, 4 
 Lev. 64. 
 
 (c) Greenwood v. Tyler, Cro. J. 563. 
 
 (d) Seudamore v. Vandenstene, 29 El. 
 B. R., cited by Viner. 
 
 (e) 8 & 9 Vic, c. 106, s. 5. 
 (/) Fearne, C. R., 37 In. 
 
 (jr) Fearne, C. R., 37 In; Eyres v. 
 Faulkland, 1 Salk. 31, pi. 9. 
 
 (h) Lewin on Trusts (5th Ed.), 38. 
 
 (i) Sd. Seymour's Case, 10 Co. 97b; 
 Cooper v.Franklin, 3 Buls. 184. 
 
 (j) Sd. Chudleigh's Case, 1 Co. 140b, 
 citing older authorities 
 
 (jfc) Fearne, C. R., 461-5; Leonard 
 Lovie's Case, 10 Co. 87a. 
 
 (/) Lewin on Trusts, ( 5th Ed.), 67(6). 
 
 (m) Fearne, C. R., 373. 
 
 («) Fearne, C. R., 37 In.
 
 TECHNICAL RULES, &C. 
 
 221 
 
 words providing that a limitation of a legal estate in fee 
 shall only continue until a specified uncertain event is void, 
 but Butler (a) does not seem to be of this opinion, and the 
 authority (b) which has been supposed to establish it does 
 not bear on the question, but merely states that a rent, 
 granted to one and his heirs so long as A shall hold a 
 specified manor, is a freehold, which of course it must be 
 whether the restrictive limitation be effectual or not. The 
 rule was never supposed to extend to Testamentary dispo- 
 sitions (c). 
 
 Another rule is that a limitation purporting to vary the Limitation 
 
 - „ . . . varying course 
 
 course of Devolution prescribed by law is void (d), but of devolution 
 
 this is somewhat relaxed in limitations of Estates tail (e). v 
 
 This rule is pushed so far that a clause purporting to Though only 
 
 cut short a previous limitation and to carry the property operative on 
 
 . one occasion. 
 
 over to another person an event on which it would by law 
 
 devolve from the object of the previous limitation, (for 
 
 example on his Death Intestate,) is void (/), whether the 
 
 property be a Tenement (g) or a Chattel (h) ; and whether, 
 
 (in the former case,) the disponor's estate be a Chattel 
 
 interest (i) or not (g); and whether the disposition be 
 
 Testamentary (j) or not(£); and whether the clause provide 
 
 that the estate itself shall go over (/), or that it shall be 
 
 sold and the proceeds shall go over (m), or that a charge 
 
 (a) Fearne, C. R. 13, n. (A). 
 
 (6) 1 1 Ass. 8 referring to the reports 
 of Trinity Term, 11 Ed. II, where, 
 however, I cannot find anything on 
 the subject. 
 
 (c) See Fearne, C. R., 450 n. (6). 
 
 (d) SeeWms. Exors, 1031; re Por- 
 ter's Trusts, 4 K. & J. 188; Sacheverell 
 v. Froggatt, 2 Keb. 839, 1 Vent. 161; 
 And see Mary Partington's Case, 10 Co. 
 38, Mildmay's Case, 6 Co. 41a. 
 
 (e) Co. Litt, 18b to 22a. 
 
 (f) Lightburne v. Gill, 3 B. P.C. 250; 
 Holmes v. Godson, 8 D. G. M. G. 152; 
 Gulliver v. Vaux, 8 D. G. M. G. 167; 
 Barton v. Barton, 3 K. & J. 512; Wil- 
 cocks' Settlement, L. R. 1 C. D. 229; 
 
 Shaw v. Ford, L. R. 7 C. D. 669, (in 
 which the limitation was complicated) ; 
 Bowes v. Goslett, 27 L. J. Ch. 249. 
 
 (g) Holmes v. Godson; Gulliver v. 
 Vaux; Barton v. Barton; Shaw v. Ford. 
 
 (A) Lightburne v. Gill; Barton v. Bar- 
 ton, Wilcocks' Settlement. 
 
 (i) Barton v. Barton; Bowes v. Gos- 
 lett. 
 
 (j) Lightburne v. Gill; Holmes v. 
 Godson; Gulliver v. Vaux; Barton v. 
 Barton; Shaw v. Ford; Bowes v. Goslett. 
 
 (Jfc) Wilcocks' Settlement. 
 
 (/) Lightburne v. Gill; Gulliver v. 
 Vaux; Barton v. Barton; Wilcocks'' Set- 
 tlement; Shaw v. Ford. 
 
 (m)Holmesv. Godson, Bowes v. Goslett.
 
 222 TECHNICAL RULES, &C. 
 
 shall attach upon it (a); and even though the Beneficial 
 interest only be affected by the clause (b); and though the 
 clause be framed to operate (c) on one devolution only and 
 that within the Perpetuity period (d) ; and though the pre- 
 vious limitation itself be Contingent on an event which 
 cannot happen until the moment of devolution so that the 
 previous limitation and the clause are to take place at the 
 same moment in Alternative contingencies (e), (at least if 
 the clause overrides not merely the previous limitation in 
 question but also the other limitations in the instrument of 
 disposition (e)); and though the clause be so framed as only 
 to operate if a specified person, (as the Crown (e),) should be 
 about to take under the devolution, or if the objects of the 
 previous limitation should omit to Partition the property 
 (/), or if the object of the previous limitation should Die 
 without Issue (g). But the rule does not apply when the 
 clause is intended to operate against the disponees of the 
 person to whom the previous estate was limited, (in other 
 words it only applies when so much only is meant to go 
 over as he may leave undisposed of (h)). And this 
 restriction holds though this intention is only collected by 
 inference from the whole tenor of the disposition and is 
 contrary to its literal wording (i). And the rule does not 
 apply to cases in which the previous limitation must, (by 
 virtue of its own wording and irrespectively of the shifting 
 clause,) terminate at the moment when the devolution 
 would take place (?'), (even though this appears merely by 
 inference from the whole tenor of the disposition (*'),) nor 
 
 (<i) Gulliver v Vaux. (f) Shaw v. Ford, 
 
 (6) Lighlburne v. Gill; Holmes v. (3) Gulliver v. Vaux. 
 
 Godson; Wilcocks' Settlement. (A) Stringer's Estate (Shaw v. Jones. 
 
 (c) Lighthurne v. Gill; Holmes v. Ford ). L. R. 6 C. D. L ; Gatenby v. Morgan, 
 Godson; Wilcocks' Settlement; Barton v. L. R. 1 Q. B. D. 685; implied in the 
 Barton; Shaw v. Ford, Bowes v. Goslelt. assumption in Barton v. Barton, that 
 
 (d) Lighthurne v. Gill; Holmes v. the limitation to the (laughter there 
 Godson; Gulliver v. Vaux; Wilcocks' was valid; and consistent with all the 
 Settlement; Barton v. Barton; Shaw v. cases. 
 
 Ford; Bowes v. Goslett. (t) Stringer's Estate. 
 
 (e) Wilcocks' Settlement,
 
 TECHNICAL RULES, &C. 
 
 223 
 
 does it apply when the previous limitation fails to come into 
 existence at all (as when it is contained in a Will and the 
 object of it dies before the Testator (a) (i)). 
 
 Again, as contingency in the right to property renders Double 
 the owner uncertain as to his pecuniary position, it was possl ' lty ' 
 once laid down that a limitation to take effect on the con- 
 currence of two contingent events of such a nature that one 
 of them is necessary to the existence of the other and yet 
 not necessarily followed by it is void (b). But this doctrine 
 has many unquestionable exceptions (c), and is generally 
 considered as overruled (d) except so far as it invalidates Child of 
 a limitation to one who is not born when the disposition is un orn peiS01 
 made, or if testamentary takes effect, nor described as the 
 child of a person then born. Such a limitation is gene- 
 rally considered void (e), at least if the estate limited be a 
 legal one, and be not a chattel interest, and the limitation 
 be preceded by a limitation to the unborn parent for his 
 life (/); but some authorities consider such a limitation 
 valid if restrained within the Perpetuity period (g). 
 
 (1) A Clause, contained in a disposition of property to Trustees upon trust 
 to sell it and distribute the proceeds amongst specified persons, and providing 
 tbat if tbe death of any of these should occur before the Trustees shall have 
 discharged their duty by making the sale and distribution his share shall pass 
 to another person, is void (A). 
 
 (a) Sd. (by the Appeal Court in 
 Stringer's Estate,) to be probably law. 
 
 (6) Fearne, C. R., 251 ; Lewis Perp., 
 601 sqq.- sd. Cholmley's Case, 2 Co. 51b 
 sqq. 
 
 (c) Butler's Note to Fearne, C. R. 251. 
 
 (d) Lewis' Perp., 419, 602 •, Real Pro- 
 perty Commrs., 3d. Rep. 29; Preston on 
 Abstracts, 128-9. 
 
 (f) Moneypenny v. Dering, 2 D. G.M. 
 G. 170; authorities cited in Lewis's 
 Perp., 421 (rf), and (as to limitation to 
 heirs of an unborn person), in Bac. Ab. 
 "Remainder" (D). 
 
 (g) See Theobald on Wills, 290 sqq. 
 (fc) Martin v. Martin, L. R. 2 Eq. 404 ; 
 
 sd. Minors v. Batlison, L. R. 1 Ap. 437, 
 451-2.
 
 ( 224 ) 
 
 CHAPTER XXVI. 
 
 RULES FAVOURING EARLY VESTING. 
 
 Reasons for 
 these Rules. 
 Preliminary 
 explanation. 
 
 Meanings of 
 
 Technical 
 
 Terms. 
 
 'Vested." 
 
 " Contingent." 
 
 " Condition 
 Precedent." 
 
 "Executory." 
 
 The reason (a) already given for the supposed rule 
 against Double Possibilities, and the conviction that any 
 testator who leaves property amongst the members of a 
 family as from a future time must intend that such of them 
 as may die before that time should be able to leave such 
 property to his family (b), have led the Courts to frame 
 several Rules to prevent the right to future property from 
 remaining too long in doubt; but a short explanation is 
 necessary to render the cases which treat of this subject 
 intelligible. 
 
 An estate or interest, meant to take effect in possession 
 as soon as the disposition containing it is made, (or if testa- 
 mentary comes into operation,) or as soon as the previous 
 estates (if any) shall come to an end, is said to be "Vested" 
 (c). An estate or interest which is not meant, under any 
 circumstances, to take effect in possession until a specified 
 event which (d), or the time of which (e), is uncertain, is 
 said to be " Contingent," and the limitation conferring it is 
 called a "Condition Precedent" (/). An estate or interest 
 which is not meant to take effect in possession until some 
 specified time is said to be "Executory" (g). 
 
 An estate or interest which is cut short by a clause 
 (contained in the disposition which limits it) before the 
 time when (but for this clase) it would expire, is said to be 
 
 (a) For other reasons, see Smith on 
 Executory Interests (Companion Vol. 
 to Fearne), s. 200-9; Duffieldv.Duffield, 
 
 1 Dow. & CI. 310. 
 
 (6) Deighton's Settled Estates, L. R. 
 
 2 C. D. 783; Selby v. Whittaker, L. R. 
 6 C. D. 239. 
 
 (c) Fearne, C. R., 216. 
 
 (d) Fearne, C. R., 3. 
 
 (e) Fearne, C. R., 5 (3rd sort'of 
 Contingent Remainders). 
 
 (f) See Co. Litt., 218a. 
 
 (g) See Hawkins on Wills, 222.
 
 RULES FAVOURING EARLY VESTING. 
 
 225 
 
 "Defeasible" (a) or "Vested the subject to be divested" 
 (a)), and the clause, if meant to carry back the property to 
 the Disponor or his Representatives and to defeat not only 
 the estate or interest first referred to but every limitation 
 subsequent to it contained in the disposition, is termed a 
 "Condition Subsequent" (b), and, in every other case, is 
 termed a "Shifting Clause." 
 
 An Executory or Contingent estate or interest is as 
 freely Disponable, testamentarily (c) and non-testamen- 
 tarily (d); and as freely Transmissible, on Death (e), on 
 Bankruptcy (/), and (in some cases) on Marriage (g), as if 
 it were vested ; though the person to whom it was limited be 
 not yet born or ascertained (h). But, if a limitation be con- 
 ditional on the object of it living to a specified time, or attain- 
 ing a specified age, it will, if he die before that time or age, 
 come to an end on his death, and consequently not be trans- 
 mitted to his representatives; this consideration explains 
 some of the cases in which the words "Vested" and 
 "Transmissible" have been used to imply that the limi- 
 tation is not conditional on such an event. 
 
 The rules by which vesting is favoured may be summed 
 up in this general principle; that a limitation shall be 
 construed as meant to vest at the earliest moment consistent 
 (so far as appears from the words) with what may have 
 been the intention of the disponor (i). 
 
 Hence any Member of a Class, (the objects of a testa- 
 mentary gift), who comes into existence after the time 
 
 "Defeasible." 
 " Vested sub- 
 ject to be 
 Divested " 
 
 " Condition 
 Subsequent." 
 " Shifting 
 Clause." 
 Executory and 
 Contingent 
 Interests are 
 disponable and 
 transmissible. 
 
 (a) See Hawkins on Wills, 231, 
 (6) Fearne, C R. 270-1. 
 
 (c) 7 Win. IV & 1 Vic, c. 26, s. 3; 
 Moot v. Hawkins, 2 Eden. 342. 
 
 (d) By deed 8 & 9 Vic., c. 106, s. 6; 
 and before tbat time by Fine or Recov- 
 ery, Fearne, C. R., 366, 551-2; or, by 
 Indenture with false Recitals, 4 Jarm. 
 Con v., 124; and as to the Beneficial 
 interest by Contract, Lyde v. Mynn, 1 
 M. & K. 683. 
 
 (e) Smith's Executory Interests, s. 743. 
 (f) Cases cited in Yate Lee on 
 
 Bankruptcy, 78, 80. 
 
 (g) See, as to Estates of Inheritance 
 in Tenements, Co. Litt., 29a.; as to 
 Chattel Interests in Tenements, Ante 
 p. 57, Donne v. Hart, 2 R. & M. 355; 
 as to Money Funds. Ante p. 57-8, Pur- 
 dew v. Jackson, I Russ. 1. 
 
 (A) 7 Wm. IV & 1 Vic, c. 26, s. 3; 8 
 & 9 Vic, c 106, s. 6; 3 & 4 Wm. IV, 
 c. 1 06, s. 1 ; Lyde v. Mynn ; Higden v. 
 Williamson 3 P. W. 132. 
 
 (»') See 2 Buls. 131 ; Cro. El. 269. 
 
 29 
 
 General rule 
 of favouring 
 Vesting. 
 
 Member of a 
 Class is only 
 entitled if born 
 by the falling 
 into possession 
 of whichever 
 share first falls 
 into possession.
 
 226 RULES FAVOURING EARLY VESTING. 
 
 appointed for the falling into possession of whichever 
 share first falls into possession, is excluded from partici- 
 pating (a) (i), whether the property be a tenement (b), 
 or a chattel (c), through he be an Infant in the womb 
 at the time in question (d), (unless the class be denoted 
 by some word indicative of lineal relationship such as 
 the word "children" (e), in which case those who are 
 conceived are treated as born (e),) and though the gift 
 affect only the beneficial estste (/), and though the Capital 
 fund is not to be realized until a time later than that at 
 which the right to the income falls into possession {g), and 
 though the condition prescribed for the share of the 
 member whom the rule excludes be different from that 
 prescribed for the share of the member whose share first 
 vests (h), and though these two members belong to different 
 sections of the Class which were described by different 
 appellations (h) (at least if the language contains no word 
 common to both, as when the class consisted of "Brothers 
 and Sisters" (A),) and though there be a clause authorizing 
 Advancement and Maintenance (i), and though it expressly 
 
 (i) In this case, as in all (j) cases in which some members of a class 
 are excluded, the other members (if any) take the shares of the excluded 
 members, though the class be one which was necessarily ascertained before the 
 disposition was made (£). But, (as regards cases in which the members were 
 in existence when the disposition was made,) this does not hold if the members 
 were specified as Individuals (/), or by name (m), unless they are to take in an 
 official capacity, for example, as Executors (n). 
 
 (a) Andrews v. Partington, 3 B. C. C. v. Matthews. 
 401; Garratt v. Weeks, L. R. 20 Eq. (g) Kevern v. Williams, 5 Sim. 172; 
 627; Dawson v. Oliver -Massey, L. R. 2 Rochford v. Hackman, 9 Hare 475. 
 C. D. 753; Picken v. Matthews, L. R. 10 (/«) Garratt v. Weeks. 
 
 C. D. 264; Singleton v. Gilbert, 1 Cox. (i) Gimblelt v. Purton. 
 
 68 ; Gimblettv. Purton, L. R. 12 Eq. 427 ; ( j) Coleman v. farrom, L. R. 4 C. D. 
 
 and, for a defence of the rule, ib. p. 430; 165, and cases there cited; Garratt v. 
 and see the observations in L. R. 1 Eq. Weeks; Dawson v. Oliver -Massey. 
 557. And see Theobald on Wills, 142, (k) Dimond v. Bostock, L. R. 10 Ch. 
 sgq. 358. 
 
 (fc) Singleton v. Gilbert; Picken v. (/) Doe v. Sheffield, 13 Ea. 526; and 
 Matthews. assumed in E. Bindon v. E. Suffolk, 4 
 
 (c) Dawson v. Oliver-Massey; Garratt B. P. C. 574. 
 
 V. Weeks; Picken v. Matthews. (m) Re Smith's Trusts, L. R. 9 C. D. 
 
 (d) Garratt v. Weeks. 117. 
 
 (e) Crook v. Bill, L. R. 3 C. D. 773, (n) Knight v. Gould, 3 M. & K. 295, 
 qualified by re Corlass.L.R. 1 C. D. 460. explained L. R. 9 C. D. 121. 
 
 (f) Dawson v. Oliver-Massey; Picken
 
 RULES FAVOURING EARLY VESTING. 
 
 227 
 
 extend to the period subsequent to the time when the first 
 share shall fall into possession (a). But the rule does not 
 apply when an expression plainly indicative of a contrary 
 intention is inserted (b), for example, a limitation to another 
 on failure of all the members of the class (c), nor does the rule 
 apply to limitations in a Marriage Settlement (d) (as the 
 nature of such an Instrument indicates that all the children 
 are to take), nor perhaps to any non-testamentary dispo- 
 sition (e). A Member of a Class amongst whom a bequest, 
 the amount of which depends on their number, has been 
 given, is only entitled if existing and ascertained at the 
 Testator's death (e), though there be none then existing 
 and the effect consequently be to invalidate the whole 
 bequest (/), and though a time subsequent to the death 
 was fixed for the distribution of the fund (g). 
 
 A Condition introduced by a Clause subsequent to that 
 which gave the estate, is construed as Subsequent, though 
 expressed as if Precedent, at least in some cases, especially 
 when the attainment of a specified age is the condition in 
 question (h). 
 
 Consequently a clause directing that a limitation shall not 
 "vest" until the object of it attain a specified age is often 
 construed as meaning that he shall take it (whether at once 
 or immediately on the expiration of previous limitations) 
 but shall lose it if he die before attaining the specified 
 age (i). 
 
 A Limitation over, on failure of a previous gift from the 
 only cause presumably contemplated by the Disponor, is 
 
 Member of a 
 Class (the 
 amount be- 
 queathed to 
 whom depends 
 on their 
 number) is 
 only entitled if 
 born before the 
 testator's 
 death. 
 Condition 
 expressed as 
 Precedent 
 construed as 
 Subsequent. 
 
 (a) Sd. Gimblett v. Purlon, professing 
 to overrule Bateman v. Gray, L. R. 6 
 Eq. 215, and Iredell v. Iredell, 25 Bea. 
 485. 
 
 (b) Smith's Ex. Int., 232-4. 
 
 (c) Mills v. Norris, 5 Vez. 355. 
 
 (d) Sd. Andrews v. Partington, B. C. 
 C. 404. 
 
 (e) All the cases cited were cases of 
 Wills. 
 
 (/) Rogersv. Mulch, L.R. 10 C . D. 25. 
 
 (g) Said Rogers v. Mutch. 
 
 (A) Armytage v. Wilson, L. R. 3 Ap. 
 372; Andrew v. Andrew, L. R. 3 C. D. 
 410, (in which there were other cir- 
 cumstances necessitating the decision, 
 and in whichthe Court construed "shall 
 have attained" as meaning "shall at- 
 tain ") ; Randall v. Doe, 5 Dow. 202 ; Mns- 
 kett v. Eaton, L. R. 1 C. D. 435, quali- 
 fied Dnffield v. Duffield, 1 Dow. N.S.268. 
 
 (i) Edmonson's Estate, L. R. 5 Eq. 389. 
 
 Limitation over 
 expressed as 
 Contingent 
 construed as 
 Vested.
 
 228 RULES FAVOURING EARLY VESTING. 
 
 construed as meant to operate on failure of it from any 
 cause: — thus, a disposition made under a Power and 
 purporting to give the property in a specified event to a 
 person to whom the power does not authorize it to be given, 
 but in the absence of that event to one to whom it does 
 authorize it to be given, will operate for the benefit of the 
 latter in either event (a); and a limitation over on the 
 Marriage of one to whom a previous life estate is limited 
 will operate also on his death (b), and a limitation over 
 on the death of a person to whom a previous estate is given 
 which is to endure until either he shall die or a specified 
 period far exceeding the probable duration of his life shall 
 expire, is construed as meant to operate, not only on his 
 death, but also on the termination of his estate by any 
 other means, as by his surviving the specified period (c); 
 and much more is a limitation over "on the death" of A, 
 following a limitation to A for life, construed as meant to 
 operate on the premature termination of A's estate as well 
 as on its termination by his death (d) (i). 
 Class— -when p^ description of a Class of disponees is often understood 
 
 usccrtiinsd* 
 
 as meant to refer to those who answer the description at 
 the time when the disposition is made or (if testamentary) 
 takes effect, even though the limitation is to take effect at 
 a future time so that it might be supposed that those who 
 should answer the description at that future time were 
 meant : for example, a bequest to one for life, and on his 
 death to Children (e) or, Cousins (/), or Next of Kin (g) 
 refers to those who answered that description at the Death 
 of the testator, not those who answered it at that of the 
 
 (i) This is not clear as regards non-testamentary limitations of the legal 
 estate directly (A) ; and it has been qualified as to limitations following void 
 limitations (i). 
 
 (a) Meredith's Trusts, L. R. 3 C. D. (/) Baldwin v. Rogers, 3 D. G. M. 
 757. G. 649. 
 
 (6) Underbill v. Roden, L. R. 2 C. D. (g) Mortimore v. Mortimore, L. R. 4 
 494; Fearne, C. R. 238-40. Ap. 448; Dawe's Trusts, L. R. 4 C. D. 
 
 (c) Fearne, C. R ., 22. 210. 
 
 (d) Ante p. 313-14, eg. Jull v. Jacobs, (A) Ante, p. 314. 
 
 (e) Rennet's Trusts, 3 K. & J. 280. (i) Monypenny v. Bering, 2 D. G. M. 
 
 G. 174-80.
 
 RULES FAVOURING EARLY VESTING. 
 
 229 
 
 life-tenant. But this does not hold if there be a clear 
 indication of a contrary intention, such as a limitation to 
 some one else in case there should not at the specified time 
 be any person answering the description (a), which of course 
 implies that if there should then be any such person he shall 
 be entitled. 
 
 From the latter of the two reasons stated above (b) the 
 Courts infer that the Representatives &c. of such Members 
 of a Class (amongst whom property was directed to be 
 distributed) as die before the time appointed for distribution 
 are entitled to share, unless all such of their issue as shall sur- 
 vive that time are amongst the objects of the limitation (c). 
 
 So, a gift, to take effect at a future time in favour of a 
 specified person if he be then alive "and" (or "or") in 
 favour of his issue " if he be then dead," entitles those issue 
 to share who survive him but die before the appointed 
 time, and consequently the question who are to take is 
 solved at the death of the person referred to (d). 
 
 But there is no rule that a Clause, by which, in a certain 
 contingency, a Vested limitation is cut short, shall only 
 operate if the contingency happen before the vested 
 limitation falls into possession (<?). Yet a direction that 
 trustees (to whom the legal estate is limited) shall, (when 
 the vested limitation falls into possession,) transfer the 
 legal estate and give up the possession to the person to 
 whom the vested limitation was made is held to imply this 
 (at least when there are several such persons constituting 
 a Class). And so is the fact that the clause, if literally 
 construed, would operate in favour of persons who could 
 not be ascertained till after the time when it is meant to 
 operate ; as, when the vested limitation is in favour of a 
 
 (a) Stuart v. Cocker ell, L. R. 5 Ch. 
 714. 
 
 (6) Ante p. 224. 
 
 (c) Deightoti's Settled Estates, L. R. 2 
 C. D. 785; Selby v. Whittaker, L. R. 6 
 C. D. 239. 
 
 (d) Merrick's Trusts, L. R. 1. E<j. 55 1 . 
 
 (e) O'Mahoney v. Burdett, L. R. 7 H. 
 L 388; Ingram v. Soutteti, Id. 408; 
 overruling the 4th Rule in Edwards v. 
 Edwards, 15 Bea. 357. 
 
 (/) Olivant v. Wright, L. R. 1 C. D. 
 346, Edwards v. Edwards, L. R. 7 H. 
 L. 394. 
 
 Class partly 
 ascertained 
 before the 
 period of 
 Distribution. 
 
 Alternative 
 Limitations to 
 one and his 
 Issue. 
 
 Shifting 
 Clause; 'when 
 construed as 
 only meant to 
 operate before 
 the period of 
 Distribution.
 
 230 RULES FAVOURING EARLY VESTING. 
 
 Class, and the Clause is one by which, on the death with- 
 out issue of any member of the Class, the estate of such 
 member is cut short in favour of those members who 
 survive him and afterwards die leaving issue (a). And so is 
 the fact that any other construction would render it (in 
 some events) impossible for the issue of the person to whom 
 the vested limitation was made to derive either directly or 
 through that person an interest in the property (b). 
 
 (a) Besant v. Cox, L. R. 6 C. D. 604. explained L. R. 7 H. L. 397-8. 
 (6) Home v. Pillans, 2 M. & K. 15,
 
 ( 231 ) 
 
 CHAPTER XXVII. 
 
 THE RULE IN SHELLEY'S CASE. 
 
 Another technical rule, which, indeed, does not deprive Generally. 
 
 Statement. 
 a limitation of all effect, but makes it produce a different 
 
 effect from that intended, is, the "Rule in Shelby's Case" 
 (a) which is, that a disposition of a tenement to a person 
 for a terminable period (not being a chattel interest (b) ), 
 followed by an expression of intention that after his death 
 the property shall pass to those who would have been 
 entitled if he had died intestate, and had, at his death, owned 
 the property in fee, or held an estate tail in it, does not give 
 to the ancestor a mere terminable estate and to his heir a 
 fee-simple estate (or estate-tail) as the intention would 
 require, but gives to the ancestor himself an estate in fee 
 or in tail, as the case may be. The practical difference is 
 that if the intention were carried out the property would 
 not be subject to the debts or dispositions of the Ancestor, 
 whereas by the rule it is subjected to both, though, in the 
 case of an estate-tail, only to the same extent as in the 
 case of any other estate-tail. 
 
 At the time when the rule arose it produced but little Original Effect 
 effect, because testamentary dispositions of inheritable 
 estates were not allowed (c), and non-testamentary dispo- 
 sitions were always accompanied by a warranty, the effect 
 of which was to bar the heirs of the disponor even when he 
 himself had only a Life-estate (d). Now Testamentary 
 
 (a) Shelley's Case, 1 Co. 93b; Perrin see above p. 4. 
 v. Blake, 4 Burr. 2579, 1 Harg. L. Tr. (c) Sd. Wild's Case, 6 Co. 168. 
 490. Reasons for it are given in Fuller (d) Co. Litt., 371, 599, especially 
 
 v. Chamier, L. R. 2 Eq. 684-5. Litt. 711, 712. 
 
 (6) As to what is a " Chattel Interest,"
 
 232 
 
 THE RULE IN SHELLEY S CASE. 
 
 Circumstances 
 insufficient 
 to preclude the 
 Rule. 
 To what 
 modes of 
 disposition it 
 applies. 
 To what 
 Subjects and 
 Tenure. 
 To what 
 Estate it 
 applies. 
 Legal or 
 Beneficial. 
 
 Joint or 
 Several. 
 
 dispositions are allowed (a), and Warranty no longer bars 
 the heir (b), but the rule continues in full vigour. 
 
 The Rule applies whether its effect be to give the 
 ancestor an estate in fee (c) or in tail (d) ; and it applies 
 even though the disposition be Testamentary (e) and though 
 the subject disposed of be a Chattel (/); and though the 
 Disponor's estate be a Chattel interest in a tenement ; and, 
 (it seems,) though the property be a Copyhold (g); and 
 though the Beneficial estate only be dealt with (h); and 
 though the limitation to the Ancestor be so framed that it 
 would have carried the Legal estate if the disponor had 
 had that estate, and the limitation to the heirs be not so 
 framed (z)(i); or (no doubt)conversely; and though the earlier 
 limitation be made to trustees upon an active trust for the 
 Ancestor, while the limitation to the heirs carries the bene- 
 ficial interest without being subject to any active trust (_/); 
 or (no doubt) conversely ; and (probably) though the limi- 
 tation to the ancestor carries only the Legal estate and 
 that to the heirs both the Legal and Beneficial estates (k) ; 
 and though the earlier limitation be to two or more persons 
 Jointly and the subsequent limitation be to the heirs of one 
 of them only (/) (n) ; and, (much more,) when both limita- 
 
 (i) In consequence of this, and the doctrine stated below that both or neither 
 of the estates must be legal, it cannot be known whether the rule applies to 
 limitations in a disposition, until the title long anterior to that disposition be 
 investigated. 
 
 (n) The converse of this does not hold (m). 
 
 (a) 32 H. VIII, c. 15; 7 Wm. IV & "heirs," were meant to decide that the 
 
 1 Vic, c. 26, s. 3. 
 (6) 3 & 4 Wm. IV, c. 27, s. 39; 3 
 
 6 4 Wm. IV, c. 74, s. 14. 
 
 (c) Cooper v. Kynock, L. R. 7 Ch. 398. 
 (cf) Shelley's Case; Collier v. Wallers, 
 L. R. 17 Eq. 252. 
 (e) White If H indie's Contract, L. R. 
 
 7 C. D. 201. 
 
 (/) Tothill v. Pitt, 7 B. P. C. 453; 
 contra Herrick v. Franklin, L. R. 6 Eq. 
 593, (which decision was founded on 
 the assumption that the cases cited 
 below as deciding that the word 
 "Issue," used respecting personal estate, 
 will not be construed as meaning 
 
 rule does not apply to chattels or chat- 
 tel interests even when the word 
 "heirs" is used. 
 
 (g) Fearne, C. R., 60. 
 
 (A) Cooper v. Kynock, L. R. 7 Ch. 
 398; White %■ Hindle's Contract, L. R. 
 7 C D. 201. 
 
 (t) White If Hindle's Contract, L. R. 
 7 C. D. 201. 
 
 (j) Cooper v. Kynock, L. R. 7 Ch. 398. 
 
 (Jfc) Preston's View, 58; Butler's 
 Note (p) to Fearne, C. R. 35 ; contra 
 Fearne, C. R., 34-5. [944. 
 
 (/) Doe v. Featherstone, 1 B. & Ad. 
 
 (m) Hayes v. Foorde, 2 Bl. 698. 

 
 THE RULE IN SHELLEY S CASE. 
 
 233 
 
 tions are joint (a); and though the earlier limitation be 
 merely Implied (b) ; and though the estate limited to the 
 ancestor is only to endure until some specified event which 
 possibly may happen in his lifetime (c); and though the 
 estate limited to the ancestor is to commence on the 
 expiration of a previous estate (d); and though another 
 limitation intervenes between the expiration of the estate 
 limited to the ancestor and the commencement of that 
 limited to the heirs (e) (i); and though words be added 
 which clearly show that the ancestor was meant to take 
 only a life interest (/) ; and though the Clauses be contained 
 in a Will, and the earlier limitation be to the Wife of the 
 testator and the later one be to the heirs of her body 
 begotten by the Testator, and he die childless, so that she 
 can only take what is technically called an "estate tail 
 after the possibility of issue extinct" (g); and even (it 
 seems) though the limitation to the heirs be subject to 
 some further contingency than the uncertainty who shall 
 be heir (h); and even though the limitation to the ancestor 
 fails, (as for example when it is contained in a Will and 
 the ancestor dies before the Testator (i) ) ; and though (in 
 certain cases in which the law does not permit an estate 
 of inheritance to pass unless some words indicative of an 
 intention that the estate shall continue beyond the life of 
 the disponee be used) the word used to describe those who 
 are to take under the subsequent limitation be, not the 
 correct legal word "Heirs," but some other word which 
 
 Implied. 
 Duration. 
 
 Contingency. 
 
 Lapse. 
 
 To what 
 modes of 
 expression it 
 applies. 
 When "Heirs" 
 unnecessary. 
 
 (i) Of course in this case the rule does not invalidate the intermediate 
 limitation, but the effect of the limitation to the heirs is to confer a subsequent 
 estate on the ancestor (j). 
 
 (a) Fearne, C. R. 35. 
 
 (6) Frogmorton v. Wharrey, 2 Bl. 728; 
 3 Wills 144; Fearne, C. R., 41. 
 
 (c) Curtis v. Price, 12 Vez. 89; 
 Fearne, C. R., 30. 
 
 (rf) Measure v. Gee, 5 B. & A. 910. 
 
 (e) Doe v. Martyn, 2 B. & C. 487; 
 Measure v. Gee, 5 B. & A. 910. 
 
 (f) Jordan v. Adams, 9 C. B. N. S. 
 
 497-9; Roe v. Bedford, 4 M. & S. 362; 
 and see Fuller v. Chamier, L. R. 2 Eq. 
 685. 
 
 (g) Plait v. Poivles, 2 M. & S. 65. 
 For a description of this kind of Estate, 
 see Co. Litt., 276-286. 
 
 (A) Fearne, C. R , 34. 
 
 (i) Goodrigltt v. Wright, 1 P. W.397. 
 
 0) Doe v. Welford, 12 A. & E. 61. 
 
 30
 
 234 
 
 THE RULE IN SHELLEY S CASE. 
 
 the testator is held to have used in the same sense (a), an 
 extension which was founded on the principle that, by 
 construing some other word as meaning "heirs," (for 
 example by construing the word "Issue" as meaning 
 "Heirs of the body,") the intention to pass an inheritable 
 estate was effectuated, and which is therefore applicable to 
 non-testamentary dispositions of any merely Beneficial 
 estate (b) (except a chattel interest) in a tenement, and to 
 Testamentary dispositions of any estate, legal or beneficial, 
 (except as aforesaid,) therein, at least if made before 1838, 
 for in wills &c. made &c. since 1837 (1), expressions indi- 
 cative of an intention to pass an inheritable estate are not 
 Conditions of required. But, in cases in which the word "Heirs" is 
 When "Heirs" requisite to pass an inheritance the Rule only applies 
 necessary. when that word is used; and this extends to all non- 
 
 testamentary limitations (c) of a legal inheritable estate, 
 because, in the few instances (d) in which the word 
 "heirs" is not necessary to such a limitation, no question 
 as to the Rule in Shelley's case can arise. And in cases 
 in which the law assumes an intention to pass the perpetual 
 interest, and consequently does not require either the word 
 "heirs" or any other expression to denote it, there is no 
 reason why any other word should be presumed to mean 
 "heirs;" and either the use of the word "heirs," or some 
 clear indication of an intention to use some other word 
 in that sense (e), becomes necessary to the application of 
 
 (1) That this extension is not applicable to these seems to he implied by a 
 decision (g) that the fact that the ancestor had no children at the testator's 
 death would, under another rule {h), cause "issue" to he thus construed. 
 
 (a) As "Heir" (in the singular), wright, L. R. 2 C. P. 511; which com- 
 
 Fuller v. Chamier, L. R. 2 Eq. 682; 
 "Son," Robinson y. Hobinson, 5 B. P. 
 C. 180, affirming S. C. 1 Burr. 38; 
 "Children", V oiler v. Carter, 4 E. & 
 B. 173; "Issue" Murlhwaitev. Jenkinson, 
 (an extreme case), Sugd. H. L. 258; 
 Roddy v. Fitzgerald, 6 H. L. 823. 
 An instance in which the word "Sons" 
 •was held not to mean "heirs" oc- 
 curs in Be Windt v. De Windt, 1 H. 
 L. 37. A well reasoned decision on 
 the word "Issue" is Bradley v. Cart- 
 
 pare with Doe v. Smith, 7 T. R. 531. 
 
 (6) Lewin on Trusts (5th Ed.), 86 
 (a), 87 (6). 
 
 (c) Co. Litt., la, 8b, 9a; Wheeler v. 
 Duke, 1 C. & M. 210; 1 Saunders on 
 Uses, 122; Doe v. Robinson, 2 M. & R. 
 249, approved in Allen v. Allen, 2 Dru. 
 & War. 327. 
 
 (rf) Co. Litt., 9b, 10a. 
 
 (e) Jackson v. Calvert, 1 J. & H. 235. 
 
 lg) Underhillv. Roden 2 L. R. C. D. 494. 
 
 (A) The Rule in Wild's Case, 6 Co. 17.
 
 THE RULE IN SHELLEY S CASE. 
 
 235 
 
 the Rule, and this embraces all cases in which the subject 
 is a Chattel (a) or the estate a Chattel interest (a), and all 
 cases of contracts or directions to make any disposition 
 (for example a settlement) (b). 
 
 The rule does not apply when, by the limitation to the 
 heirs, some estate intervening betweeen it and that limited 
 to the ancestor is to be cut short, (or when by some such 
 intervening limitation the estate of the ancestor is to be cut 
 short,) before the period which its own Clause of limitation 
 prescribed (c) (i); nor when the limitation to the ancestor 
 carries the Legal estate (with (d) or without the beneficial 
 estate), and that to the heirs carries the Beneficial estate 
 only (nor conversely (e) ) though the later limitation be to 
 the "heirs and assigns" of the ancestor (/) which might be 
 thought to imply that he should take the whole estate so 
 as to be able to assign it ; nor when the limitation to the 
 ancestor is a mere Chattel interest (g), even though the 
 later limitation be to the "heirs and assigns" of the ancestor 
 (Ji) ; nor when the limitation to the ancestor is contained in 
 one Disposition and that to the heirs in another (i), 
 whether the instrument containing the limitation to the 
 heirs be the earlier (i) or the later one (z), and even 
 though both be made by the same disponor (z), unless 
 
 (i) The cases cited in a good recent text-book as shewing that the Rule does 
 not apply in this case, nor when the limitation to the heirs is framed as an 
 alternative contingent remainder, do not bear out the Author, but merely show 
 that the estates which there intervened between the limitation to the ancestor 
 and that to the heirs were not invalidated by the rule. 
 
 (a) Murthwaite v. Jenkinson, Sugd. H. v. Coson,4 Mod. 330, Comb. 312, Carth. 
 L. 258; Exp. Wynch, 5 D. G. M. G. 188; 272, Holt 731 ; Contra said White $ 
 
 Jackson v. Calvert; Goldney v. Crahb 19 
 Bea. 333; decisions with which Lewis 
 v. Hopkins, 3 Drew. 668, is consistent 
 for it was decided on the ground that 
 though the rule in Shelley's Case did 
 not apply the cj/pres doctrine (discussed 
 below) produced the same effect. As 
 to what is meant by a " Chattel Inter- 
 
 Hindle's Contract, L. R. 7 C D. 201. 
 (rf) Fearne, C. R., 57. 
 
 (e) Exp. Wynch, 5 D. G. M. G. 188; 
 Fearne. C R., 52. 
 
 (f) Quested v. Michell, L. J. 24 Ch. 
 722. 
 
 (<;) Harris v. Barnes, 1 Bl 643; Coape 
 v.Amold, 4 D. G. M. G. 574; though 
 
 est" see Ante p. 4, 5. As to the con- disponor's interest a chattel, Ware v. 
 
 struction of other words as meaning Bradley, 2 Vera. 23. For definition of 
 
 "heirs," see above p. 234, n. (a). "Chattel Interest," Ante, p. 4, 5. 
 
 (6) See below p. 239-40. O) Tapner v. Merlott, Willes 177. 
 
 (c) Said Fearne, C. R., 276; Tippin (i) Fearne, C. R., 71-3. 
 
 Exceptions. 
 As to the mode 
 of Limitation. 
 Shifting Clause 
 
 Legal or 
 Beneficial. 
 
 Freehold or 
 Chattel. 
 
 As to the 
 
 Number 
 
 of Instruments 
 
 used.
 
 236 
 
 THE RULE IN SHELLEY S CASE. 
 
 (Power and 
 Appointment). 
 
 As to the 
 Stock of 
 Descent. 
 Generally. 
 
 ("On" and 
 "of"). 
 
 When the First 
 Heir is to be 
 the Stock of 
 Descent. 
 Consequence 
 of his being so. 
 
 either the one was incorporated into the other by reference 
 {a), or (I presume) both are testamentary dispositions by 
 the same Testator, or the limitation to the ancestor be 
 contained in a disposition which confers on some person 
 a Power to dispose of the property subject to the ancestor's 
 estate and the limitation to the heirs be contained in a 
 disposition made in exercise of that power (b), or (I 
 apprehend) conversely. Nor does the rule apply when 
 the heirs referred to are not those of the ancestor alone, 
 but those of him and another person jointly (c), unless 
 the earlier limitation has been made to both ancestors (d). 
 Consequently a limitation to a Woman for life and after 
 her death to the heirs of the bodies of herself and her husband 
 gives her an estate for life and her children after her death 
 an estate tail (e), whereas a limitation to her for life and 
 after her death to the heirs of her body would give her an 
 estate tail (/), and a limitation to a Woman for life and 
 after her death to the heirs on her body by her husband 
 begotten indicates that the heirs are to take as heirs to 
 both, and therefore makes both the stock of descent, and 
 gives the estate to her for life and then to her children in 
 tail (g), whereas the substitution of "of" for "on" would 
 indicate that she was to be the stock of descent and so 
 she would take an estate tail (g). Much less then does 
 the rule apply when, though the word "heirs" was used, 
 yet the disponor's intention was, not that the estate should 
 (so long as undisposed of) pass in a course of devolution 
 to all who should be heirs (or heirs of the specified class) 
 of the ancestor, but that it should pass only to the par- 
 ticular person who should happen to be heir at the 
 ancestor's death, or to that person and on his death to 
 
 (a) Hayes v. Foorde, 2 Bl. 698. 
 (6) Sugd Povv. (8th Ed.) 472. 
 (c) Frogmorton v. Wharrey, 2 Bl. 728, 
 3 Wils. 144. 
 
 (rf) Ante, p. 232-3. 
 
 («) Gossage v. Taylor, 2 T. R. 435. 
 
 (f) Piatt v. Powles, 2 M. & S. 65. 
 
 (g) Denn v. Gilklt, 2 T. R. 431.
 
 THE RULE IN SHELLEY'S CASE. 237 
 
 his heirs making him the stock of descent (a) and con- 
 sequently carrying the descent in a somewhat different 
 channel from that in which it would have devolved if 
 traced from the Ancestor. The question which of these How it is 
 intentions exists is in general solved pursuant to the ^g^ rhe is so 
 ordinary rules of construction, but some peculiar rules ln general. 
 have been adopted with reference to this special question, 
 and these are so inapt to the ascertainment of the real 
 intention of the disponor that they must be considered 
 as partaking of the character of rules of law and may be 
 properly stated here. 
 
 The use of the word Heir (b), (or, much more, any when "Heir' 
 
 other word,) in the singular number in the subsequent u . sed \ n 
 
 . ... singular, 
 
 limitation, is construed as indicating that whoever shall, 
 
 at the death of the ancestor, be his heir, is to be the stock 
 of descent, and so prevents the application of the rule. 
 But in dispositions in which the law permits an inheritance 
 to be limited without the use of the plural word "heirs," 
 an added reference to the heirs of such heir is necessary 
 to this construction, even a statement that the "heir" is 
 to take "for ever" (c) being considered insufficient, and 
 this embraces every limitation of an Estate-Tail even in 
 a Deed (d), or of any Estate in a Will (e); whereas, in 
 dispositions in which the plural word is required to the 
 passing of an inheritance, the singular is necessarily con- 
 strued as denoting the person to take, so that he takes a 
 life estate only unless his heirs be referred to, and this 
 embraces every limitation in Fee of the legal estate in a 
 Deed (f). 
 
 (a) See the explanation of Archer's trary, in 1 Ro. Ab. 842, I 37, is not 
 
 Case in Fuller v. Chamier, L. R. 2 Eq. borne out by the case there cited. But 
 
 684-5. Fearne, C. R., 179, cites dicta from 
 
 (6) Archer's Case, 1 Co. 66b ex- Vubber v. Trollope, (Amb. 453), in 
 
 plained L. R. 2 Eq. 684, 686; Cham- which an attempt is made to confound 
 
 berlayne v. Chamber layne, 6 E. & B. 625. the limitation of a fee with that of an 
 
 (c) Fuller v. Chamier, L. R.2 Eq 686. estate-tail. The reason why the strict 
 
 (d) Bony v. Taylor, 2 Ro. Ab. 253. rule is not applied to the latter is be- 
 
 (e) Fuller v. Chamier. cause the Statute de donis directs that 
 (/) Bayley v. Morris, 4 Vez. 794; the intention of the donor shall be 
 
 Co. Litt., 8b; the assertion to the con- observed.
 
 238 
 
 THE RULE IN SHELLEY S CASE. 
 
 When "Heirs" 
 used in plural. 
 
 When " Heirs" 
 directed to 
 take in Shares. 
 
 When Heirs 
 to take only 
 on attaining 
 age. 
 
 But the plural "Heirs" does not make the heir the stock 
 of descent, even though a reference to the heirs of such 
 heirs be added (a), unless the latter words specify a dif- 
 ferent class of heirs from those who would take under the 
 former (a). 
 
 A direction that the heirs (b), (or some class of them (c)), 
 shall take concurrently in shares, will not cause the word 
 "heirs" (b), or the expression "heirs of the body" (c), to mean 
 " children," even though the disposition be testamentary (d)', 
 and though there be sufficient words to give to the "heirs" 
 (when so construed) a perpetual estate (e) ; and though 
 there be no direction that on failure of heirs the estate 
 shall pass to another person, which (if inserted) might 
 imply that the estate should not pass over until the heirs 
 should fail, and that, therefore, the ancestor must take an 
 estate of inheritance (/) ; and though a power to appoint 
 amongst the "heirs" be conferred (g), and it be added that 
 if there be only one "child" the estate shall go to that one 
 "child" (h); and (perhaps) though the meaning of "heirs" 
 be explained by the addition of the words "whether sons 
 or daughters" (z). 
 
 A direction that only such heirs (or heirs of the body (J) ) 
 shall take as shall attain a specified age does not prevent 
 the word "heirs" being construed in its technical sense (_/'), 
 even in a will (/), if there be also a direction that the 
 estate shall pass to another person in the event of there 
 
 (a) Fearne, C. R., 181 ; Smith, C. R., 
 S. 472 sqq. 
 
 (b) Dunk v. Fenner, 2 R. & M. 557. 
 
 (c) Due v. Smith, 7 T R. 531; Ben- 
 nett v. E. Tanker ville, 19Vez. 170; Doe 
 v. Featherstone, 1 B. & Ad. 944; Jesson 
 v. Wright, 2 Bli. 1; Doe v. Harvey, 4 
 B. & C. 610; Pierson v. Vickers, 5 Ea. 
 548 ; A nderson v. A nderson, 30 Bea. 209 ; 
 Mills v. Seward, 1 J . & H. 733; Grim- 
 son v. Downing, 4 Dr. 125. 
 
 (d) Dunk v. Fenner; Doe v. Smith; 
 Bennett v. E. Tankerville; Jesson v. 
 Wright; Doe, v. Harvey; Pierson v. Vic- 
 kers; Anderson v. Anderson; Mills v. 
 
 Seward; Grimson v. Downing; Toller v. 
 Allwood; Doe v. Featherstone. 
 
 (e) Due v. Smith; Mills v. Seward; 
 Grimson v. Downing. 
 
 (/) Doe v. Featherstone; Mills v. 
 Seward. 
 
 (g) Jesson v. Wright. 
 
 (h) Dunk v. Fenner; Jesson v. Wright, 
 which seems to overrule North v. Mar- 
 tin, 6 Sim. 271. 
 
 (t) So held in Pierson v. Vickers and 
 Grimson v. Downing, bnt contradicted 
 by the numerous authorities referred to 
 in 9 C. B. N. S. 500-1. 
 
 0) Toller v. Attwood, 15 Q. B. 929.
 
 THE RULE IN SHELLEY S CASE. 
 
 239 
 
 being no "heirs" or their all dying under the age without 
 leaving issue (a), for this direction shows that the testator 
 did not intend the estate to go over if the heirs should die 
 under the age leaving issue, which it would do if "heirs" 
 were construed "children" (a). 
 
 A direction that "Issue" shall take concurrently in 
 shares will cause the word "issue" to be construed as 
 meaning "children" (b), though there be a direction that 
 on default of issue the estate shall go over, and it be so 
 framed that it would, in general, be construed as meaning 
 that the estate shall not go over until the failure, (whether 
 before or after the ancestor's death,) of his descendants (b). 
 But this only holds if the words be sufficient to give to the 
 "issue," when construed as meaning "children," a per- 
 petual estate (c); because, either the ancestor must take 
 an estate of inheritance which can descend to his issue, 
 or the issue themselves must take such an estate, lest the 
 intention, which the Courts feel sure the testator must have 
 had, should be disappointed ; but the issue cannot take it 
 unless there be some words to manifest an intention to 
 that effect, because if they were allowed to do so the 
 decisions which had been pronounced before this question 
 of construction arose would be overruled ; therefore in the 
 absence of such words the ancestor himself must take it (d). 
 However if the will was made or republished since 1837 an 
 intention to give a perpetual estate to the "issue" is pre- 
 sumed (e). And in a deed the word "issue," however con- 
 strued, is insufficient (/) to give an estate of inheritance, 
 except (g) in certain cases. 
 
 Contracts to settle are not construed on the same prin- 
 ciples as actual settlements. When, in consideration of 
 marriage, a contract is made to settle property on the heirs 
 
 When "Issue" 
 directed to 
 take in Shares. 
 
 (a) Toller v. Aitioood, 15 Q. B. 929. 
 (6) Bradley v. Cartwright, L. R. 2 C. 
 P. 511. 
 
 (c) Doe v. Rucastle, 8 C. B. 876. 
 
 (d) Crozier v. Crozier, 2 D. & War. 38 1. 
 
 (e) 7 Wm. IV & 1 Vic, c. 26, s. 28. 
 (/) Ante, p. 234 (c). 
 (g) Ante, p. 234 (ft), (d), and see 
 235 (a), (b). 
 
 When the 
 question arises 
 on a Contract 
 or Executory- 
 Trust. 
 To settle on 
 marriage.
 
 240 
 
 THE RULE IN SHELLEY S CASE. 
 
 To settle 
 otherwise. 
 
 Extension of 
 
 rule. 
 
 (Gift to donor's 
 
 heirs). 
 
 of the body of the intended spouses, the purpose of the 
 contract renders it probable that the children were 
 intended to take estates, and therefore that such expressions 
 as "heirs of the body" were not used in their strict sense 
 but as meaning "children" (a), and they are construed 
 accordingly (b), unless the contract be so framed as to 
 show that the parties understood the Rule in Shelley's Case 
 and meant it to apply (c). Other contracts, as well as 
 directions to trustees to settle property, are interpreted 
 pursuant to the ordinary rules of construction (d), except 
 that words showing that the ancestor was only meant to 
 take for life will here prevent the application of the Rule 
 (e), unless the limitations which are to be inserted in the 
 contemplated settlement are specified almost word for 
 word (/). 
 
 By an extension of this Rule, a gift by one to the use of 
 his own heirs would formerly (g) have passed the estate to 
 himself, but this is so no longer (h). 
 
 (a) Blackburn v. Stables, 2 V. & B. 
 369. 
 
 (6)1 W.& T. L. C. (4th Ed.), 21-23. 
 
 (c) Id. 23-4. 
 
 (J) Ld. Glenorchy v. Bosville, 1 W. T. 
 L. C. 1, 27, 33; Thompson v. Fisher, L. 
 R. 10 Eq. 207. 
 
 (e) 1 W. & T. L. C. 29 ; Papillon v. 
 Voice, 2 P. W. 471. 
 
 (f) Id. 30; Austen v. Taylor, 1 
 Eden. 361. 
 
 (g) Shelford, R. P. S. 447, 451. 
 (6) 3 & 4 Wm. IV, c. 106, s. 3.
 
 ( 241 ) 
 
 CHAPTER XXVIII. 
 
 THE CY PRES DOCTRINE. 
 
 The following rule, like that discussed in the preceding 
 chapter, gives to a limitation a different effect from that 
 intended; but, unlike it, assists rather than defeats the 
 Intention of the disponor. It is called the Cy pres doctrine 
 (a):- 
 
 A limitation which cannot, or cannot lawfully, produce 
 the effect intended, will produce the nearest effect thereto 
 which is lawfully possible. 
 
 From this is deduced the rule already (b) alluded to, that 
 property held on trust for a Charitable purpose to which it 
 cannot (or cannot lawfully) be applied, shall be applied to 
 some charitable purpose resembling it. 
 
 And from the same principle is deduced the rule that a 
 Limitation to any person and his issue (or some of them), 
 which cannot (or cannot lawfully) take effect as framed, 
 shall operate in a manner as near to the intention as is 
 lawfully possible (c); whether the disponor's estate be a 
 Chattel interest (d) or otherwise (e); and whether the 
 limitation be Legal (/), or merely Beneficial (g); and 
 whether, (in the latter case,) it be such that the law will 
 transfer the legal estate to it (h), or not (i) ; and whether 
 
 (a) From Cy pres (in modern French 
 sipres), "as near [as possible]". 
 
 (6) Ante, p. 102 (&)-(<0- 
 
 (c) Humberston v. Humberston, 1 P. 
 W. 332 ; Doe v. Gallini, 3 A. & E. 340 ; 
 Parfilt v. Member, L. R. 4 Eq. 443; 
 Vanderplank v. King, 4 Hare 1, (in 
 which the doctrine is well explained ) ; 
 Pitt v. Jackson, 2 B. C. C. 51, further 
 stated 2 Vez. J. 348; Line v. Hall, 43 
 L. J. Ch. 107; Williams v. Teak, 6 
 Hare 239. 
 
 Generally. 
 Rule intro- 
 duced. 
 
 Rule stated. 
 
 As applicable 
 to gifts for 
 Charity. 
 
 As applicable 
 to Limitations 
 to a person and 
 his issue. 
 
 (d) Said Williams v. Teale. 
 
 (e) Humberston v. Humberston; Doe 
 v. Gallini; Parfilt v. Hember; Vander- 
 plank v. King; Line v. Hall; Williams 
 v. Teale. 
 
 (f) Vanderplank v. King, p. 12-13; 
 Line v. Hall. 
 
 (<7) Parfitt v. Hember; Pitt v. Jack' 
 son; Williams v. Teale. 
 (A) Doe v. Gallini. 
 (i) Parfitt v. Hember; Pitt v. Jackson. 
 
 31 

 
 242 THE CV PRES DOCTRINE. 
 
 the disponor merely directs trustees to settle the property 
 (a), or himself settles it by the disposition in question (£); 
 and whether the property belonged to him (c), or was 
 merely directed by him to be purchased (d) ; and whether 
 the invalidity of the limitation be caused by the Rule 
 against Perpetuities (e), or by the fact that it is made under 
 a Power which did not authorize it (/) ; but only (it seems) 
 when the disposition is Testamentary (i), (including, how- 
 ever, a testamentary disposition made in exercise of a Power 
 conferred by a deed) (g), and only (A) if an intention be 
 manifested that the succession shall go on for ever, or for 
 so long as the first taker has issue, and (perhaps) only if 
 the invalid limitation be in Tail, or be such as, in a free- 
 hold, would create an entail (n), and not if the subject be 
 a Chattel (i), (unless it be directed to be expended in the 
 purchase of an estate in a tenement (j), or be, itself, a 
 Chattel interest in a tenement (k),) nor when the effect 
 would be that persons would be inheritable whom the 
 testator had not meant to include in the line of succession 
 
 (i) So held in a case (m) in which the cause of the invalidity was that the dispo- 
 sition was made under a Power which did not authorize it, hut the contrary 
 was implied in the reason given for the decision in a case (o) in which Rule 
 against Perpetuities was the cause. It was testamentary in all the cases cited. 
 
 (n) This restriction is absurd on principle, but two authorities are generally 
 vouched for it. In one (p) the question did not arise, for all the limitations 
 created were valid. In the other (9) the cause of the invalidity of the limita- 
 tion to the issue was that it was made under the Power which did not autho- 
 rize it. 
 
 (re) Humberston v. Humberston; Pitt (K) Seamen v. Willock, 5 Ea. 198. 
 ■v.Jackson; Williams v. Teale. (i) As in Forsbrook v. Forsbrook and 
 
 (6) Parfitt v. Member Doe v. Gallini. 
 
 (c) Humberston v. Humberston; Doe (J) Routledge v. Dorril, 2 Vez. J. 356. 
 v. Gallini ; Parfitt v. Hember ; Vander- ( k) Pitt v. Jackson. 
 
 plank v. King; Line v. Hall; Williams (/) Said Williams v. Teale. 
 
 v. Teale. (m) Monypenney v. Dering, 1 6 M. & 
 
 (d) Pitt v. Jackson. W. 430-1, 2 D. G. M. G. 174-5. 
 
 (e) Humberston v. Humberston; Doe (n) Brudenell v. Elwes, 1 Ea. 442. qu. 
 v. Gallini; Parfitt v. Hember; Vander- (0) Routledgev. Dorril, 2 Vez. J. 356. 
 plank v. King; Williams v. Teale. (p) Hale v. Pew, 25 Bea. 335. 
 
 (f) Pitt v. Jackson; Line v. Hall. (9) Brisiowe v. Ward, 2 Vez. J. 336. 
 
 (g) Robinson v. Hardcastk, 2 T. R. 
 241.
 
 THE CY PRES DOCTRINE. 243 
 
 The details of the rule are worked out thus.: — 
 
 A Limitation by will, to one for life, and from his death To one for life, 
 
 to his first and other sons, with intervening limitations to Jeath)™™his S 
 
 their sons (and sons' sons and so on) successively, each for descendants 
 
 succGSsivsl V 
 his life, operates as a limitation to those objects who are ^^ taking' 
 
 born in the testator's lifetime according to its terms, and for life * 
 to those who are born after his death in tail male (a) ; and 
 (of course) if "children" or "daughters" were substituted 
 for "sons," estates in tail, or in tail female, would be sub- 
 stituted for. estates in tail male. 
 
 A Limitation to one for life, and (from his death) to his To one for life, 
 •1 i . r ■ i- j and (from his 
 
 children in concurrent shares lor their lives, and, as to the death) to his 
 
 share of each, after his death, to his children in shares, children in con- 
 
 ' current shares 
 
 and so on, operates as a limitation to those objects who are for their lives, 
 
 born in the testator's lifetime according to its terms, and, share of each, 
 
 after the death of each, to his children in tail in concurrent *° 7 " s children 
 
 in shares &c. 
 shares (b), with cross limitations of each share (on the 
 
 expiration of the estate tail therein) to and amongst those 
 entitled to the other shares (c), and, (on the expiration of 
 the estates tail in all the shares,) to the life-tenant (whose 
 children took the estates tail) in tail (d) (i); except that 
 Chattel interests go absolutely to the person who, under 
 this rule, would be first tenant in tail (e), and the subse- 
 quent remainders in such interests are void (e), (though 
 perhaps a limitation over whenever any such absolute 
 taker should die under age without leaving issue would be 
 implied.) 
 
 (i) It is true that limitations in tail to all the issue when valid leave nothing 
 to he inherited under the limitation to the ancestor, but the latter will, never- 
 theless, be implied, because it may be that some of the limitations to the issue 
 may lapse (</). 
 
 (n) Humberston v. Humberston. R. 5 C. D. 193-4; and see Forsbrook 
 
 (6) Doe v. Gallini; Parfittv. Hembcr; v. Forsbrook, L. R. 3 C. D. 93; contra 
 
 Vanderplank v. King; Williams v. Teak, suggested in Williams v. Teak, 6 Hare 
 
 (c) Parjitt v. Member, Vanderplank 253. 
 
 V. King ; Williams v. Teak. (e) Said in effect, Williams v. Teale. 
 
 (d) Said Doe v. Gallini, approved L. 

 
 244 
 
 THE CY PRES DOCTRINE. 
 
 To one, and 
 from his death 
 to his children 
 in tail; under a 
 Power not 
 authorizing the 
 latter limita- 
 tion. 
 
 So, a Limitation to one, and from his death to his 
 children in tail, made in professed exercise of a Power 
 which authorizes the limitation to him but not that to his 
 children, will operate as a limitation to him in tail (a), even 
 though it comprises other property also as to which it is 
 valid and to which consequently the rule is not applied (b); 
 and though the limitation to the children be in concurrent 
 shares (c), whereas, by the construction adopted, the elder 
 male line must be preferred; especially if the person to 
 whom the limitation for life is made would (in the absence 
 of any exercise of the power) be entitled to the property in 
 fee (d) or in tail (e) ; but only, (according to one authority 
 (/),) if the limitation to the children be in tail; and not, 
 (I apprehend (/),) if they are the persons who (in the 
 absence of any exercise of the power) would be entitled 
 to the property (g). 
 
 (a) P ilt v. Jackson • Line v. Hall. 
 (6) Line v. Hall. 
 
 (c) Filt v. Jackson. 
 
 (d) As in Line v. Hall. 
 
 (e) As in Pitt v. Jackson. This was 
 thought material in Bristowe v. Ward, 
 2 Vez. J. 348. 
 
 (f) Bristowe v. Ward, 2 Vez. J. 348-9. 
 That Hale v. Feiv, does not support 
 this restriction see Ante p. 242 (j)). 
 
 (<?) See accordingly, Lord West- 
 bury 's observations in Roddy v. Fitz- 
 gerald, 6 H. L. 823.
 
 ( 245 ) 
 
 CHAPTER XXIX. 
 
 RESTRAINTS ON ALIENATION. 
 
 Restrictions on the disposing power of owners of property General 
 are discouraged for the highest political reason, namely, P riDC1 P le - 
 that if the acquisition of property were not freely permit- 
 ted, Anarchy would probably result. 
 
 Consequently any clause which (if valid) would entitle clause merely 
 
 the owner of property or his representatives to retain it P r . omD1 . tln g 
 , . . alienation , 
 
 against one deriving under him, is void; whether the void. 
 
 latter derive by a Disposition (made in bar of an entail (a) 
 or otherwise (b)), or by a Transmission, (by Bankruptcy 
 (c), Death Intestate (d), Dower (e), Courtesy (e), or other- 
 wise) ; and whether the restriction to be in the form of a 
 Condition (/), a Trust (g), a Covenant (h), or otherwise (i) ; 
 and whether the estate be terminable (/), or not; and 
 though the subject be a Life Annuity (k); and though the 
 restriction be confined to property which the party seeking 
 to impose it is disposing of to him upon whom he seeks to 
 impose it (I) ; and though the restraint be framed to operate 
 only until some time or event which falls within the 
 Perpetuity period (m), (as when the estate which it over- 
 rides is merely for the life of a person born before the 
 disposition is made (m) and though the fund be subjected 
 to a trust to apply it for the "maintenance" of the bene- 
 
 (/i) Dawkins v. Lord Fenrhyn, L. R. 
 4 Ap. 51. 
 
 (6) Said Sochfordv. Hackman, 9 Hare 
 380. 
 
 (c) Brandon v. Robinson, 18 Vez.429. 
 
 (rf) Ante p. 221 (/). 
 
 (e) Said Fortinglons Case, 10 Co. 
 48b, 39a. 
 
 (f) Brandon v. Robinson, 18 Vez. 429. 
 
 (g) Dawkins y. Lord Fenrhyn, L. R. 
 4 Ap. 51. 
 
 (h) Collins v. Hummer, 2 Vern. C35. 
 
 (i) Hayes v. Foorde, 1 Bl. 698. 
 
 (j) Brandon v. Robinson. 
 
 (fc) See Arden v. Goodacre, 11 C. B. 
 883. 
 
 (/) So in all the authorities cited. 
 
 (m) Brandon v. Robinson; Arden v. 
 Goodacre. For an explanation of what 
 this period is see the discussion of the 
 Rule against Perpetuities in next 
 Chapter.
 
 246 
 
 RESTRAINTS ON ALIENATION. 
 
 (Mode of eva- 
 ding this Rule.) 
 
 Clause cutting 
 short a perpet- 
 ual estate on 
 alienation, 
 void. 
 Rule. 
 
 (What deemed 
 Alienation). 
 
 ficiary (i) (a); but not if the clause merely entitle a Married 
 Woman to retain the beneficial estate against her husband 
 (b) ; nor if it merely prohibit such dispositions as may be 
 made by a Woman, when Married, of the beneficial, 
 (with or without the legal,) estate, in the capital, or subse- 
 quent income, of property productive of income, held for 
 her Separate Use (c), unless (perhaps) the clause be such 
 that the restraint might exceed the Perpetuity period (d) ; 
 nor if it be contained in a private (e) or other Act of 
 Parliament. 
 
 But this rule can be (in part) evaded by directing that so 
 much only of the fund as some third person, (for example, 
 a trustee,) may think proper, shall be expended for the 
 benefit of the donee (/). And the balance may be given 
 for his family (g) (if any). 
 
 Again, a restriction contained in the limitation of a 
 perpetual (n) Estate, and providing (in) that if the holder 
 
 (i) The ground of the latest decision on this point (a Scotch case (A)) seems 
 to have been merely that the commencement of an action by creditors cannot 
 pi-eclude the trustees from exercising an authority (conferred on them by the 
 trust-deed) to change the income into an alimentary provision. The question 
 whether creditors can take an alimentary provision was not raised because it is 
 clear that by the law of Scotland they cannot ( i). It does not follow that by 
 the law of England they cannot do so. On that question I am unable to 
 reconcile the cases in the note (J), There are no cases since the 5th Ed. of 
 Lewin on Trusts except Chambers v. Smith. 
 
 (u) Tbe term "perpetual" as here used includes, when the Disponor's estate 
 is a Chattel Interest, a limitation for the whole period embraced bv that Interest 
 
 (m) Although questions of Construction do not fall within the scheme of 
 this work, I will add, that a clause restraining alienation, and expressed in 
 general terms, has been held to extend to a disposition binding only in honour 
 (/), to a charge (m), to the marriage of a (n) female (even as regards an estate 
 of freehold (n) in which of course the husband's interest is limited (o)) and to 
 
 («) Younghusband v. Gisbome, 1 Coll. 
 400; as to trusts for maintenance 
 generally see Sandersim's Trust, 3 K. 
 & J. 497. 
 
 (6) Ante, p. 59. 
 
 (c) Ante, p. 138-9. 
 
 {d) Re Ridley, Buxton v. Hay, L. 
 R. 1 1 C. D. 645. [98. 
 
 (e) E. Lincoln v. Archdecktie, 1 Coll. 
 
 (f) Chambers v. Smith, L. R. 3 A p. 
 795. 
 
 (g) Lord v. Bwm, 2 Y. & C. C. C. 
 98. 
 
 (/j) Chambers v. Smith, L. R. 3 Ap. 
 795. 
 
 (j) Stair's Institutions, (4th Ed.) 424, 
 429, 437. 
 
 (j) Goddenv. Crowhurst, 10 Sim. 657; 
 Younghusband v. Gisbonie, 1 Coll. 400. 
 
 (k) Co. Litt 223a; Powell v. Boggis; 
 Bradley v. Peixoto, [404. 
 
 (/) Oldham v. Oldham, L. R. 3 Eq. 
 
 (m) Montefiore v. Behrens, L. R. 1 Eq. 
 171. [296. 
 
 (n) Craven v. Brady, L. R. 4 Ch. 
 
 (u) Ante, p. 44, 55.
 
 RESTRAINTS ON ALIENATION. 
 
 247 
 
 of such estate should dispose (a) of it, (or that if he should 
 (b) attempt to do so,) his interest shall cease, is void, and 
 he continues entitled, whether the subject be a Tenement 
 (c), or a Chattel (d); and whether it be Corporeal (e), or 
 Incorporeal (/"); and whether, (in case of a tenement,) 
 the disponor's estate be a Chattel interest (g), or not (h); 
 and whether the restraint extend to all kinds of alienations 
 (*'), or to specified kinds only (J) ; and whether the restrict- 
 ion be a Condition (k) that the estate shall be forfeited to the 
 Disponor or his Representatives, or an Accruer clause (I) 
 that it shall pass to the other members of a class to whom 
 it is being given; or a Clause of Cesser (m) that it shall pass 
 to the person next entitled under the limitations, or a 
 Shifting Clause (n) that i£ shall pass to some other person, 
 or a Limitation {o) that it shall only continue until 
 alienation ; and whether the disposition be Testamentary 
 (P), or not (q) ; and though the restraint be confined to a 
 
 (Definitions of 
 
 terms denoting 
 
 the clauses by 
 
 which estates 
 
 are limited 
 
 over. 
 
 "Condition". 
 
 " Accruer 
 
 clause". 
 
 "Clause of 
 
 Cesser". 
 
 "Shifting 
 
 Clause". 
 
 " Limitation"). 
 
 a liquidation Petition (r). And a clause restraining composition with Creditors 
 has been held to extend to a Trust Deed for creditors in which inability to pay 
 the debts was recited (s). But of course much depends on the wording of each 
 particular clause. 
 
 (a) 33 Ass. 11; Powell v. Boggis, 35 
 L. J. Ch. 472 ; Willis v. Hiscox, 4 M. 
 & C. 201 fin. 
 
 (6) Bradley v. Peixoto, 3 Vez. 325; 
 Ware v. Cann, 10 B. & C. 433. 
 
 (c) Co. Litt. 233a; Powell v. Boggis, 
 (in which, though the Court decided 
 that the proviso was void even if it 
 applied to tenements, it seems to have 
 been intended to apply to chattels 
 only); Willis v. Hiscox; Ware v. Cann. 
 
 (d) Co. Litt. 223a; Powell v. Boggis, 
 Bradley v. Peixoto. In the case of a 
 corporeal personal chattel the rule is 
 peculiarly applicable, because the title 
 to such a chattel is ordinarily proved 
 by the possession of it. This is pointed 
 out in the 2 T. R. 139. 
 
 (e) Co. Litt. 223a; Corporeal Tene- 
 ment, Powell v. Boggis; Wilis v. Hiscox. 
 
 (f) Co. Litt. 223a; Incorporeal Chat- 
 tels, Powell v. Boggis; Bradley v. Peixoto. 
 
 GO Co. Litt. 223a; Powell v. Boggis; 
 
 Bradley v. Peixoto. 
 
 (h) Co. Litt. 223a; Powell v. Boggis. 
 
 (i) Powell v. Boggis, (in which the 
 words were "sale and disposition"; 
 Bradley v. Peixoto. 
 
 (;') Ware v. Cann, questioned (in 
 principle) in re Macleay, L. R. 20 Eq. 
 189. 
 
 (*) 33 Ass. 11; Co. Litt. 223a; 
 Powell v. Boggis. 
 
 (/) Bradley v. Heixoto. 
 
 (in) Willis v. Hiscox. 
 
 («) Ware v. Cann. 
 
 (o) Said Partington's Case, 10 Co. 
 39a / 6; Said 13 H. VII, p. 24, 1. 6, 7. 
 
 (p) Co. Litt. 223a; Powell v. Boggis; 
 Willis v. Hiscox; Ware v. Cann; Brad- 
 ley v. Peixoto. 
 
 (q) Co. Litt. 223a. 
 
 (r) Amherst's Trusts, L. R. 13 Eq. 
 464. 
 
 (s) Billson v. Crofts, L. R. 15 Eq. 
 314.
 
 248 RESTRAINTS ON ALIENATION. 
 
 limited period (i) falling within the perpetuity period, (for 
 example, the Lifetime of the disponee (a), or, perhaps, the 
 duration of a Life estate preceding his (b)); and though 
 the restraint be (by the disposition) declared to be a para- 
 mount consideration with the disponor (c), and though the 
 estate to which it is annexed be limited to continue only 
 until some specified event (d). 
 Exceptions. ^g ru i e does no t apply when alienation to persons 
 
 belonging to a specified class (e), or even (it seems) to one 
 specified Individual, is allowed (/), much less when the 
 disponee is (by the condition) bound to dispose of the prop- 
 erty to a specified person (g), (although I apprehend it 
 would extend to a prohibition of alienation by any other 
 mode than sale to a specified person (h), and to a prohibi- 
 tion practically restraining all alienation {i))\ nor does it 
 apply to a restraint imposed by a grant from the King (/) ; 
 nor to such alienations by a Married Woman of property 
 settled to her separate Use as are referred to above (k); 
 nor to restraints on ineffectual alienations (/), such as, an 
 alienation by a Married Woman otherwise than by Deed 
 Acknowledged (m) of property not settled to her separate 
 use, or an alienation by an Infant before attaining twenty- 
 one (m) ; and a restraint when expressed as if extending to 
 
 (i) This was somewhat questioned in one case (n), and is contrary to one 
 explanation of another (o), but a restraint unlimited as to time would (indepen- 
 dently of this rule) be void under the Rule against Perpetuities (p), except 
 perhaps in case of a Condition strictly so called (9). 
 
 (a) Warev. Cann; Bradley v. Peixoto. (i) Said L. R. 20 Eq. 188-9. 
 
 (6) Powell v. Boggis, (but see below (j) 21 H. VIII, 8. 
 
 note (0)- (*) An te, p. 246(c), andsee p. 138-9). 
 
 (c) Bradley v. Peixoto. (/) Co. Litt. 223b. 
 
 Id) Said 13 H. VIII, p. 24. I. 6. (m) Said Mildmay's Case, 6 Co. 41b. 
 
 (e) Re Macleay, L. R. 20 Eq. 186, (n) Re Macleay, L. R. 20 Eq. 189- 
 overruling Attwater v. Attwater, 18 90. 
 
 Bea. 330. (o) Spittle v. Davies, Owen 8, 55. 
 
 (f) See re Macleay, L. R. 20 Eq. 188. (p) L. R. 20 Eq. p. 190. 
 
 (g) Daniel v. Ubley, Jo. 137. {q) See the Chapter on the Rule 
 (/*) Probably this was what the against Perpetuities. 
 
 Court really meant in Attwater t. 
 Attwater.
 
 RESTRAINTS ON ALIENATION. 
 
 249 
 
 all alienation will operate upon any ineffectual one (a), and 
 perhaps upon any alienation falling within the exceptions 
 to the Rule. 
 
 Nor does the rule apply when the disponor's estate is 
 terminable, (as, a leasehold for years (b) (i);) nor when the 
 limitation subjected to the restraint is terminable (c), (or is 
 a terminable Annuity (d)) ; whether the subject be a Tene- 
 ment (e), or a Chattel (/); and whether the disponor's 
 estate be Legal (g), or merely Beneficial (h); and whether 
 the limitation subjected to the restraint be Legal (i), or 
 Beneficial (/); and whether the restraint be (k) a Condition 
 (I), a Clause of Cessev (;;t), a Shifting Clause (»), or a Limitation 
 (o) ; and whether the disposition be Testamentary (p), or 
 otherwise: but in case of an Annuity the exception will only 
 hold if the restraint be imposed by the instrument which 
 creates the annuity as distinguished from the instrument 
 which directs that it shall be purchased (q), a distinction 
 which was probably introduced to prevent purchasers of 
 the annuity from being imposed upon. And even before it 
 was established that terminable estates might be subjected 
 to such a restraint it was (as it still is) clear that a Lease- 
 hold may, on its creation, be subjected to a Condition 
 
 Cases falling 
 outside the 
 terms of the 
 Rule. 
 Restraints 
 overriding 
 terminable 
 estates. 
 
 (i) In the case in the note (6) the shifting clause was to operate if the party 
 should cease to live on the premises, but this shows that a limitation over on 
 alienation would have been equally valid, because, when a man has alienated 
 premises, he cannot insist on living there. 
 
 (a) Co. Litt. 224a; said 6 Co. 41b. 
 (6) Doe v. Hawke, 2 Ea. 481. 
 
 (c) Joel v. Milts, 3 K. & J. 458; Roch- 
 ford \. Hackman, 9 Hare 475; Parnharris 
 
 Trusts. L. R. 13 Eq. 413. 
 
 (d) Exp. Eyshm re Thockmorton, L. 
 R. 7 C. D. 145; and see Hatton v. May, 
 L. R. 3 C. D. 148. 
 
 (e) Joel v. Mills ; Doe v. Hawke. 
 
 (f) Rochford v. Hackman. 
 
 (p) Doe v. Hawke; Rochford v. Hack- 
 man. 
 
 (h) Joell v. Mills . 
 (i) Doe v. Hawke. 
 
 (j) Rochford v. Hackman. 
 
 (*) For a definition of the italicised 
 words see ante, p. 776-7. 
 
 (7) Joel v. Mills. 
 
 (m) Rochford v. Hackman; EyslonxQ 
 Thockmorton; Hatton y. May. 
 
 (n) Doe v. Hawke. 
 
 (o) Conceded Joel v. Mills; Rochford 
 v. Hackman. 
 
 (p) Joel v. Mills; Doev. Hawke; Roch- 
 ford v. Hackman. 
 
 (q) Hunt-Foulston v. Furrier; L. R. 3 
 C. D. 285. 
 
 33
 
 250 
 
 RESTRAINTS ON ALIENATION. 
 
 Conditions 
 Precedent. 
 
 Clause cutting 
 short an estate- 
 tail on alien- 
 ation, void. 
 
 restraining alienation (a). Nor does the rule extend to a 
 Condition Precedent (b), and consequently a condition that 
 a future interest shall only vest if, at the time when it 
 falls into possession, it is still undisposed of, is valid (c). 
 And a Condition defeating an estate in the event of the 
 disponee disposing of other property seems to be valid (d). 
 
 Again, a restriction contained in the limitation of an 
 Estate Tail, and providing that if the tenant-in-tail shall 
 bar the entail (e) or the estates lying behind it (/), (or that 
 if he shall attempt (g) or conclude (h) to do so,) his 
 estate tail, (or his individual interest in it (i),) shall cease, 
 is void, and the tenant-in-tail and his issue continue 
 entitled, whether the restriction (J) be a Condition (k), a 
 Clause of Cesser (I), a Shifting Clause (m) (i), a Limitation (n), 
 or a Charge (o) ; though it be confined to the first tenant-in- 
 tail (p). And there is no reason to doubt that the circum- 
 
 (i) Such a clause will not operate even after the expiration of the entail (m). 
 
 (a) Roe v. Galliers, 2 T. R. 133; and 
 see 22 & 23 Vic, c. 35, s. 1, 2; 23 & 
 24 Vic, c. 38, s. 6. 
 
 (6) For definition of this term see 
 ante, p. 224. 
 
 (c) Churchill v. Marks, 1 Coll. 441; 
 Kearsley v. Woodcock, 3 Hare 185, (in 
 ■which, moreover, most of the income 
 was given to the party until the time 
 when his estate in the corpus was to 
 fall into possession) ; admitted, Large's 
 Case, 2 Leo. 182; in Powell v. Boggis, 
 a contrary decision was pronounced, 
 on the ground that the condition in 
 that case was subsequent while that in 
 Churchill v. Marks was precedent. 
 But the distinction between conditions 
 subsequent and precedent seems to me 
 to evanesce when the condition must 
 he broken or fulfilled before the estate 
 falls into possession. In Powell v. 
 Bogglt, there was no gift over. In 
 Churchill v. Marks, the gift was to a 
 class, and there was an accruer clause. 
 In Keartley v Woodcock, there was, and 
 in Large's Case, there was not, a limi- 
 tation over. 
 
 (rf) Co. Litt. 223a, states it to he so, 
 
 but Coke's opinion on this and similar 
 points has been doubted by modern 
 text-writers. 
 
 (e) Germin v. Ascot, Moo. 364. 
 
 (f) Sonday's Case, 9 Co. 40; Foy v. 
 Hynde, Cro. J. 697. 
 
 (g) Mildmay's Case, 6 Co. 40 ; Corbet's 
 Case, 1 Co. 83. 
 
 (A) Mary Partington's Case, 10 Co. 36. 
 Germin v. Ascot, Moo. 364. 
 
 ( i ) For definitions of these italicised 
 words see ante, p. 776-7. 
 
 (j) Touchstone, 133. 
 
 Ik) Co. Litt. 223-4. 
 
 (/) Mary Partington's Case; Sonday's 
 Case. 
 
 (m) Pewterer's Co.\. Christ's Hospital, 
 1 Vern. 161. 
 
 (n) Foy v. Hynde, Cro. J. 697. 
 
 (o) King v. Burchell, 1 Amb. 379; 
 Mainwaring v. Baxter, 5 Vez. 557; in 
 both which cases the restriction was 
 framed to apply to alienations either 
 within or beyond the perpetuity period, 
 but in the former only of which the 
 alienation was made within that period. 
 
 (/>) Pewterer's Co, v. Christ's Hospital.
 
 RESTRAINTS ON ALIENATION. 251 
 
 stances which affect the application of the rule respecting 
 the alienation of fee simple estates, affect equally that of 
 the rule now under consideration. Accordingly this rule 
 does not apply to a restraint on an ineffectual alienation, (as, 
 a disposition by a tenant-in-tail made before 1834 without 
 Fine or Recovery (a), or, (I infer,) made since 1833 without 
 deed, or by a deed which for six months continues unen- 
 rolled (b), and not being such a lease as is effectual without 
 these formalities (c),) even though an estate in fee, to 
 commence on the expiration of the estate tail, be limited 
 by the same disposition and to the same person as the 
 estate tail (d). And a Shifting Clause (e) to operate on any 
 alienation by the tenant-in-tail or any of his issue while 
 under thirty years of age has been held effectual to carry 
 over the estate upon a Lease for three years made by the 
 original tenant-in-tail while under thirty (f), although such 
 lease was at least confirmable (g), and, if conformable to the 
 statute (h) (1), was valid: but whether the decision was 
 grounded on the limited duration of the Condition, or on the 
 possibly ineffectual nature of the Lease, does not appear. 
 
 (1) Whether it was so is not stated. 
 
 (a) Litt. 362, explained in Mary (d) 13 H. VII, E. T. pi. 9. 
 
 Partington's Case, 10 Co. 39a. (e) For definition of Shifting Clause, 
 
 (6) See 3 & 4 Wm. IV, c. 74, end see ante, p. 777. 
 
 of s. 15. (f) Spittle v. Davies, Owen 8, 55. 
 
 (c) 6 Co. 43a; contra Co Litt., 223b; (g) Co. Litt., 45b. 
 
 see 3 & 4 Wm. IV, c. 74, s. 41. (h) 38 Hen. VIII, c. 28.
 
 ( 252 ) 
 
 CHAPTER XXX. 
 
 THE RULE AGAINST PERPETUITIES. 
 
 Introductory 
 observations. 
 
 Rule stated. 
 
 Circumstances 
 insufficient to 
 preclude the 
 rule. 
 
 In the preceding Chapter I explained the Rules by which 
 the Disponor of property is prevented from unduly re- 
 stricting his Disponee's power to alienate it. I have now 
 to explain that by which he is prevented from so limiting it, 
 as, (for too long a period,) to make alienation impossible or 
 difficult, — I add "or difficult," because the rule invalidates 
 many interests which, though not readily saleable, might, 
 if valid, be legally disposed of from the moment when they 
 are conferred (a). 
 
 The rule is that a Limitation, contingent on an event 
 which may (b) happen after the lapse of twenty-one years 
 from the death of some person, (or of the survivor of some 
 persons (c),) — born (d) (or conceived (e)) at the time when (in 
 case of a limitation under a trust (f) or special power (f),) 
 the disposition containing the trust or power was made, (or 
 if testamentary became irrevocable (g),) or when, (in case 
 of any other limitation (h)) the limitation itself was made (h), 
 (or if testamentary became irrevocable (g)) ; — and referred 
 to (i) in the disposition containing the power or trust, or in 
 that containing the limitation, — or, (if no such person be 
 therein referred to,) then within twenty-one years from 
 the said time (j), is void (k); whether the subjec~t.be a 
 
 (a) See below p. 253 (o) (p) (q). 
 
 (b) Below p. 253 (m). 
 
 (c) Cadell v. Palmer, (in which there 
 were 28 arbitrarily chosen lives,) 1 C. 
 & F. 372. 
 
 (d) Cadell v. Palmer, Tollemache v. 
 Coventry, 2 C. & F. 611. [Vez. 406. 
 
 (e) Long v. Blackall, 7 T. R. 100, 3 
 
 (f) See below p. 255. 
 
 (g) See below, citing Lord Dungannon 
 v. Smith and Williams v. Teale, 
 
 (/j) Cadell v. Palmer- Tollemache v. 
 Coventry. 
 
 (i) The only instances in which this 
 part of the Rule presents any difficul- 
 ties is that of the exercise of powers. 
 As to this see below p. 255, n. (i). 
 
 (j) Said Cadell v. Palmer, 1 C. & F. 
 372; accordingly Curtis v. Lutein, 5 
 Bea. 147. 
 
 (fc) Cadell v. Palmer; Cattlinv. Brown, 
 11 Hare 372; (both leading cases).
 
 THE RULE AGAINST PERPETUITIES. 
 
 253 
 
 Tenement (a) or a Chattel (b) ; and whether, (in the for- 
 mer case,) the Disponor's estate be a Chattel Interest 
 (c) or not (d); and whether the disposition be testamentary 
 (e) or not (f); and whether the limitation so affect the 
 Beneficial estate that the law will transfer the legal 
 estate to it (g), or affect it simply (A), or affect the Legal 
 estate (i); and though the Contingency affect only the 
 Amount to which the party is to be entitled (j), especially 
 if even a minimum cannot be ascertained within the period 
 (£)•; and though the contingency ultimately happen within 
 the perpetuity period (/) ; and though the limitation be for 
 persons who must be Born (m) and Ascertained (m), (and 
 therefore capable of disposing of the interest limited to 
 them (n),) within that period or not at all, or even for 
 persons born (o) and ascertained (o), (and therefore capable 
 of disposing of it («),) when the limitation is made (p), (or 
 authorized to be made (q);) and though (even under such 
 circumstances) the subject be one held by documentary 
 evidence the perusal of which would enable an intending 
 purchaser to discover the limitation over, (as, a Tenement 
 
 (a) Bankes v. Holme, Sugd. H. L.353. 
 
 (6) L. Tollemachev. Coventry, 2 C. & 
 F. 611 ; Malcolm v. Taylor, 2 R. & M. 
 416; Lepine v. Ferard, 2 R. & M. 378. 
 
 (c) Ld. Dungannon v. Smith; Williams 
 V. Lewis. 
 
 (d) Bankes v. Holme. 
 
 (e) Ld. Dungannon v. Smith, 12 C. & 
 F. 546; Williams v. Lewis, 6 H.L.1013. 
 
 (f) See 3 Dav. Conv. 154. 
 
 (g) Brown $■ Sibly's Contract, L. R. 3 C. 
 D. 156. 
 
 (A) Ld. Dungannon v. Smith, 12 C. & 
 F. 546; Williams v. Lewis, 6 H. L. 1013. 
 
 (i) Harding v. Nott, 7 E. & B. 650; 
 Bankes v. Holme, 1 Russ. 394 n. 
 
 (j) Curtis v. Lukin, 5 Bea. 147. 
 
 (k) As in Curtis v. Lukin. See on 
 this point Moseley^s Trusts, L. R. 11 C. 
 D. 555. 
 
 (/) Harding v. Nott, 7 E. & B. 650; 
 Ld. Dwigannonv. Smith,12 C. & F. 546; 
 L Tollemache, v. L. Coventry, 2 C. & F. 
 611, a case which shows that the 
 Draughtsman ought, whenever practi- 
 
 cable, to specify as individuals the 
 persons who are intended to take, 
 rather than t© refer to them by a class 
 description, since, if the latter mode be 
 adopted, and there be any possibility 
 that the description may not be an- 
 swered within the perpetuity period, 
 the limitation will be void. 
 
 (m) Brown Sf Sibley's Contract, L. R. 3 
 C. D. 156, (a case decided since contin- 
 gent legal estates became disponable 
 without Estoppel); Jeev. Audley, 1 Cox 
 324; contra, said, Gooch v. Gooch, 3 D. 
 G. M. G. 384. 
 
 (n) Ante, p. 225, (c), (d). 
 
 (o) Grey v. Montagu, 3 B. P. C. 314; 
 Harding v. Nott, 7 E. & B. 650; Mai- 
 colm v. Taylor, 2 R. & M. 416 (as to 
 the plate) ; Lepine v. Ferard, 2 R. & M. 
 378; contra, said, Jee v. Audley, 1 Cox. 
 326. 
 
 ( p) Grey v. Montagu, (an appointment 
 under a general power); Malcolm v. Tay- 
 lor; Lepine v. Ferard. 
 
 {q) This follows on principle. 
 
 To what 
 Subjects, &c. 
 it applies. 
 
 To what 
 modes of 
 Disposition. 
 To what 
 modes of 
 Limitation. 
 
 To what 
 
 Contingencies. 
 
 Generally.
 
 254 THE RULE AGAINST PERPETUITIES. 
 
 (a) or Fund (b)) ; and though the contingency coincide with 
 the time prescribed by a preceding limitation for the expi- 
 ration of an estate thereby limited (c) (i), or be capable of 
 happening before it so that the limitation in question will 
 cut short such preceding estate (d) ; and though the contin- 
 gency merely be that some heir of a specified person may 
 attain twenty-one (e) ; and though the contingency be that 
 a party may become entitled to another property under a 
 disposition his right under which might have been barred 
 as lying behind an Estate Tail (f) ; and though the contin- 
 Alternative. gency comprise two Alternatives, of which one can, while 
 the other cannot, happen after the perpetuity period (g), 
 (as, on a limitation to such member of a series as shall first 
 fulfil a specified condition capable of being fulfilled by one 
 of them within and by the others either within or beyond 
 the perpetuity-period (g)) (n), and the latter be the one which 
 ultimately happens (g), (unless there be a preceding limita- 
 tion, which would commence within, but terminate beyond, 
 the perpetuity line, and the alternative which happens be 
 
 (i) A gift of any tenement (except an unentailable copyhold), to one so long 
 as his descendants may continue, and on their failure to another, confers a vested 
 estate (A) on the latter, and therefore falls within one of the exceptions to the 
 Perpetuity Rule stated below; and the subsequent limitation in such a gift of 
 any hereditament is barrable, and therefore falls under another of these excep- 
 tions. But such subsequent limitation of a Chattel not inheritable, is, (for 
 historical reasons,) classified differently, and therefore falls under that Rule (c). 
 
 (II ) The expression of the latter alternative has been recently (i) held to make 
 the rule inapplicable to it : but this would preclude us from determining at the 
 time when the limitation is made whether it be valid or not, and would enable 
 us to do by express words what we cannot by implication, and seems besides 
 inconsistent with the decisions (g) just cited. Nor do previous authorities 
 seem to attribute any further force to the double phraseology than that of shew- 
 ing, in the case excepted in the text, that the testator &c. did not intend the 
 subsequent limitation to await the time when the preceding one would (if valid) 
 have expired. 
 
 (a) Harding v. Nott. (e) Lord Dungannon v. Smith, 12 C. 
 
 (b) Grew. Montagu; Lepinev. Ferard. & F. 446. 
 
 (c) Malcolmv. Taylor, 3 R. & M. 454 (f) Harding v. Nott, 7 E. & B. 657. 
 (as to the gift to M. Taylor for life and (g) Ld. Dungannon v. Smith, 12 C. & 
 after failure of her issue to another, F. 546; Tollemache v. Coventry, 2 C. & 
 which was construed as a gift to her so F. 611. 
 
 long as herdescendants should continue (h) Ante, p. 49 (c), 50-1. 
 
 and then to the other person); Lepine (i) Miles v. Harford, L. R. 12 C. D. 
 
 v. Ferard. 702-3. 
 
 (d) Harding v. Nott.
 
 THE RULE AGAINST PERPETUITIES. 
 
 255 
 
 that it shall never commence, the other alternative being 
 that it shall terminate (a)) ; and though, (when the limita- Limitations 
 tion is made under a Power conferred (b), or Trust imposed "° £ r ecta / US 
 (c), by a previous disposition,) the contingency be inca- Powers, 
 pable of happening after the perpetuity period reckon- 
 ing from the time when the limitation was made, provided 
 that it be capable of falling beyond that period as reckoned 
 from the time when the disposition creating the power or 
 trust was made (d), (or being testamentary took effect (e) 
 (i),) and that the Power or Trust either only authorized a 
 limitation depending on such a contingency (f), or only 
 authorized a limitation to a specified Person (g) or Class, 
 (as, "Issue" (h) (n), or "Children" (*'), or "Kindred" (_/),) 
 or by a specified kind of disposition, (as, a Will (£),) or for 
 
 (r) As to what lives are deemed, for the purpose of this rule, to be referred 
 to in the limitation : it seems that the life of every person who, being alive when 
 the disposition creating the power or trust was made (I) (or if testamentary 
 became irrevocable (/) ), is by it authorized to exercise the power (/) or trust, 
 or to hold any estate (m), interest, or authority, in or respecting the property, 
 is so deemed. 
 
 (n) That is, " Children or remoter descendants." 
 
 (a) Williams v. Lewis, 6 H. L. 1013; 
 Monypenney v. Dering, 2 D. G. M. G. 183- 
 4; Hodgson v. Halford, L. R. 1 1 C. D. 
 959, (as to Julius's share). The ground 
 of the decision in Evers v. Challis, 1 H. 
 L. 531, was different, namely, that the 
 limitation was a Contingent Remainder 
 as defined, ante p. 217. 
 
 (6) Morgan v. Gronow (as to the limi- 
 tations to take effect on marriage), L. 
 R. 16 Eq. 1 ; Routledge v. Dorril, 2 Vez. 
 J. 356; Brown v. Sibly's Contract, L. R. 
 3 C. D. 156; Hodgson v. Halford, 11 C. 
 D. 959; Ware v. Polhill, 2 Vez. 259. 
 
 (c; Tregonwell v. Sydenhum, 3 Dow. 
 195; An. -Gen. v. Greenhill, 33 Bea. 193; 
 Hale v. Pew, 25 Bea. 337. 
 
 (d) Morgan v. Gronow; Routledge v. 
 Dorrill; Brown v. Sibly's Contract. 
 
 (c) Hodgson v. Halford; Ware v. Pol- 
 hill; Tregonwell v. Sydenham; Att.-Gen. 
 V. Greenhill; Hale v. Pew. 
 
 (f) Bristowv. Boothby, 2 S.& St. 465; 
 this point seems also to be involved in 
 Morgan v. Gronow, for the power author- 
 izing A to appoint amongsthis children, 
 and the exercise of it by him in favour 
 of such limitations (to take effect from 
 
 his daughter's marriage) as she should 
 appoint, were together equivalent to an 
 original power authorizing her to make 
 such limitations, to take effect from her 
 marriage, as she should think proper; 
 and it was held thatall such limitations 
 must be void, because her marriage 
 might have taken place after the per- 
 petuity period, reckoning from the 
 date of the original power. 
 
 (<7) Tregonwell v. Sydenham. 
 
 (A) Routledge v. Dorril; Brown Sf Sib- 
 ly's Contract. [Halford. 
 
 (i) Morgan v. Gronow; Hodgson v. 
 
 (/) Att.-Gen. v. Greenhill. 
 
 (k) Morgan v. Gronow, (as to the de- 
 rivative power authorizing the daughter 
 to dispose by Will, which, when consid- 
 ered in combination with the original 
 power under the authority of which it 
 was conferred, was equivalent to an 
 original power authorizing her so to 
 dispose) ; Wollaston v. King, L. R. 8 Eq. 
 165. 
 
 (/) See Lewis on Perpetuity, 554. 
 Light is cast on this question by Pow- 
 nall v. Graham, 33 Bea. 245. 
 
 (m) Lantsbery v. Collier, 2 K. & J. 709.
 
 25G 
 
 THE RULE AGAINST PERPETUITIES. 
 
 To directions 
 for Accumu- 
 lation. 
 
 To Ancient 
 dispositions. 
 
 valuable consideration, (as, in case of a power to Sell (a), 
 or Lease (b), or a trust to Purchase and Settle (c),) unless 
 the case falls, (as indeed sales under powers generally do,) 
 under one of the exceptions stated further on; and though 
 the Clause which the rule invalidates be a power (d) or trust 
 (e) to Accumulate the income until an event which possibly 
 may, (though it ultimately does not (d), happen beyond the 
 perpetuity period, unless the purpose of the accumulation 
 be to pay debts (e), or be to purchase property and to settle 
 it upon such persons as may answer a description which 
 necessitates their being born and ascertained, and all con- 
 tingencies (except that of the accumulated amount being 
 sufficient for the purchase) resolved, within the perpetuity 
 period, reckoning from the time when the trust is imposed, 
 (in which case the rule is inapplicable even to purchases 
 which, because the amount was insufficient, could not 
 consistently with the trust, have been made within the 
 period, — a qualification which is probably founded on and 
 restricted by the right of the person on whom the fee was 
 to be settled to stop, within the period, all further accumu- 
 lations, and insist upon having the income (e)). But when 
 the accumulation is directed to take place during every 
 successive minority, the fact that its object is to purchase 
 and settle property does not avail to preclude the rule (/), 
 even though such accumulation be more than the Court 
 itself would direct (/) ; nay, in this case, the trust has been 
 held invalid even as regards accumulations made within 
 the perpetuity period (/). The rule applies to a disposition 
 
 (a) Ware v. Polkill; Lewis on Per- 
 petuities, 655-6. But Ware v. Polhill 
 has been distinguished on other grounds 
 in 3 Dav. Conv. 570-1 and in Lewis 
 on Perpetuity, 514, 579. And iu Hale 
 v. Pew, the Trust for Sale was not to 
 arise until the perpetuity period was 
 passed. But in Ware v. Polhill, the life- 
 tenant had died and 21 years had 
 elapsed when the sale was made. 
 
 (d) Said in effect, Tregomvell v. 
 Sydenham, 3 Dow. 194. But this seems 
 contrary to one of the points in Lord 
 Southampton v. M. Hertford, 2 V. & B. 
 54. It would seem, from Oddie v. 
 Brown, 4 D. G. J. 186-7, that when an 
 accumulation for the benefit of several 
 person is directed, each one may, as 
 soon as his interest vests, stop the ac- 
 cumulation as to his own share with- 
 
 (b)See Tregonwellv. Sydenham, p 207. out the consent of the others. 
 
 (c) Turvin v. S'ewcome,3 K. & J. 16. (e) Turvin v. Sewcome,3 K. & J. 16.
 
 THE RULE AGAINST PERPETUITIES. 
 
 257 
 
 made before it arose, (as, in 1539 (a),) even though pos- 
 session has ever since been held under such disposition (a), 
 and though that possession has been confirmed by Judicial 
 Decision (a), unless (perhaps) the question of perpetuity- 
 was raised (b), or those interested in disputing it were 
 represented {b). And it applies though the clause invali- 
 dated by it be a Trust imposed as a Consideration for a 
 gift of the property on which it was imposed, as, a Trust to 
 grant Leases to the testator's relatives, attached to a gift 
 by the testator to a College (c). And the rule invalidates a 
 gift to a Class (1) as regards any share whose maximum 
 amount may remain contingent beyond the perpetuity 
 period (d), although such gift be so framed that the mini- 
 mum amount of the share is necessarily ascertainable, and 
 all other contingencies affecting it are necessarily resolved, 
 within that period (d). Consequently it invalidates as to 
 all the shares, a gift to a class so framed that one of the 
 shares may remain contingent beyond the perpetuity period 
 (d), unless the amount of each share be independent of the 
 number of members (e), (as is the case when ^50 is given 
 to each member of the class, instead of ^"1000 amongst all 
 (e)). And it applies to a limitation for one of those purposes 
 which the law terms "Charitable Uses" (/), unless another 
 limitation for such a purpose (g) immediately follow. 
 
 And the rule invalidates a Clause restricting a Married 
 Woman from alienating property given for her Separate 
 Use when the restraint if valid would continue in operation 
 
 To Trusts 
 imposed as 
 Consideration 
 for the 
 Disposition. 
 
 To Limita- 
 tions to a 
 Class. 
 
 To Charitable 
 Uses (when). 
 
 To Restraints 
 on Anticipa- 
 tion. 
 
 (ij When the class designated were, the "Children" of a specified woman, 
 who, when the limitation was made, was past Child-bearing, the Court refused 
 to take this fact into account for the purpose of construing "Children" as 
 meaning "Children already born" (A). 
 
 (a) Hope v. C. Gloucester, 7 D. G. M. 
 G. 647. 
 
 (b) Consistent with Hope v. C. Glou- 
 cester, 7 D. G. M. G. 647. 
 
 (c) Att.-Gen. v. Greenhill, 33 Bea. 193. 
 
 (d) Moseley's Trusts, L. R. 1 1 Ch. 553, 
 qualified by Benl'uk v. D. Portland, L. 
 R. 7 C. D. 693. The doctrine is ex- 
 
 plained in Hale v. Hale, L. R. 3 C. D. 
 643. 
 
 0) Said Bentick v. D. Portland. 
 
 (f) Said Chamberlayne v. Brockett, L. 
 R. 8 Ch. 211. For a statement of these 
 purposes see below Chap. XXXIII. 
 
 (</) Chamberlayne v. Brockett. 
 
 (h) Singer's Trusts, L. R. 6 Eq. 319. 
 
 33
 
 258 
 
 THE RULE AGAINST PERPETUITIES. 
 
 Perhaps to 
 
 Accruer 
 
 Clauses. 
 
 Exceptions. 
 Child in the 
 Womh.J 
 
 Charitable 
 trust. 
 
 beyond the perpetuity period (a). And it invalidates it even 
 as regards an alienation made within that period (a). And 
 it has been held to invalidate (as to all the Married Women 
 who are members of a Class so denned that Married 
 Women capable of outliving the perpetuity period might 
 have become members of it), a clause restraining them 
 from disposing of their shares (which were given for their 
 separate use), although, in the event, no one capable of 
 outliving that period did become a member (b). But the 
 correctness of the extension of the rule to any clause for 
 restraining alienation has been judicially questioned (b). 
 When the rule invalidates a restraint on alienation the gift 
 which was subject to that restraint continues valid (c). 
 
 The Rule has in one case been held applicable (d), in 
 another inapplicable (e), to an Accruer Clause (capable of 
 operating beyond the perpetuity-period) to the survivors of a 
 class so described that the limitation to it must vest (if at 
 all) within that period. The reason given for holding it 
 inapplicable is that the members of the Class can convey 
 the estate within the period, but this reason would prove 
 that no limitation to a person of age and ascertained within 
 the period is invalidated by the rule. 
 
 The rule does not apply when the only contingency cap- 
 able of happening after the perpetuity-period is that the 
 description of the person to whom the limitation is made 
 may be answered by a person bom after the perpetuity- 
 period, unless it can also be answered by a person begotten 
 after that period (/"); Nor does the rule apply to a Clause 
 changing the mode of application (g) of a Charitable gift, 
 
 (a) Re Teague's Settlement, L. R. 10 
 Eq. 564; re Cunningham's Settlement, L. 
 R. 11 Eq. 324. 
 
 (6) Re Ridley, Buckton v. Hay, L. R. 
 11 C. D. 645. 
 
 (c) Re TeaguSs Sett.ement; re Ridley. 
 
 (d) Garland v. Brown, 10 L. T. N. S. 
 292. 
 
 (e) Avern v. Lloyd, L. R. 5 Eq. 383; 
 said Gooch v. Gooch, 3 D. G. M. G. 383. 
 
 (/) Said Cadell v. Palmer, 1 C. & 
 F. 372. 
 
 (g) Chamber layue v. Brockett, L. R. 
 8 C. D. 211.
 
 THE RULE AGAINST PERPETUITIES. 259 
 
 nor to a limitation following or cutting short a limitation 
 
 for a Charitable purpose (a) at least if such subsequent 
 
 limitation be itself for such a purpose (b) ; nor to a Power Power or 
 
 (c) or Trust (i); to dispose of property (i); nor to a limi- A Jp 8 ^ tment 
 
 tation free from contingency, or depending on a contin- " nder TrU8t or 
 , . , , ' , . . , Special Power, 
 
 gency which cannot happen alter the perpetuity-period, 
 
 though such limitation be made under a Power or Trust so 
 
 framed as to authorize limitations (e) which would be 
 
 invalidated by the rule, or be combined in one expression 
 
 with other Limitations which would be invalidated by it 
 
 (so that an expression referring to a series of limitations and 
 
 providing that if any person who may become entitled 
 
 under those limitations should die under twenty-one the 
 
 estate shall pass to the next in succession is not invalidated 
 
 as to those the description of whom requires that they 
 
 should be born twenty-one years before the expiration of 
 
 the perpetuity-period, although the description of others 
 
 amongst those who are to take admits of their being born 
 
 later (/)). Nor does the rule invalidate a testamentary Testamentary 
 
 limitation expending on a contingency which cannot hap- deposition 
 c ° . unless from 
 
 pen after the perpetuity-period reckoning from the death, death. 
 
 though it be capable of falling beyond that period reckoning 
 
 from the date of the Will (g); nor a limitation under a Appointment 
 
 Power authorizing the donee of the power to limit gratui- " nder General 
 
 tously (h) at any time (i) and to any person (J) he pleases, 
 
 (i) But it applies to a Power to Manage property, and invalidates an exercise 
 of such a power even within the perpetuity-period (f). 
 
 (a) By the terms "Charitable gift," (e) Slark v. Dakyns; Attenboroughv. 
 
 "Limitation for a Charitable purpose," Attenborough; said Tregonwell v. Syden- 
 
 I mean a limitation for such a purpose ham. 
 
 as is (in Chap. XXXIII) described as (/) C. Harington v. E. Harington, L. 
 
 falling under the exemption of "Char- R. 5 H. L. 87. 
 
 itable uses" from the laws against (g) Williams v. Teale, 6 Hare 239. 
 
 Remoteness. (h) Ant«, p. 256 (a) (b) (c). 
 
 (6) Christ" i Hospital v. Grainger, 1 (•) See ante p. 255 (/) (fc). This 
 
 Macn & G. 460. distinction is taken in Powell's Trusts, 
 
 (c) Slark v. Dakynt, L. R. 10 Ch. 35; 39 L. J. Ch. 188, and in Morgan v. 
 
 Attenborough v. Attenboi ough, 1 K. & J. Gronow. L. R. 16 Eq 1. 
 
 296. (/) See ante, p. 255 (<?) (/i) Q 0); 
 
 (<f) Said Tregonwell v. Sydenham, 3 Sugd. Pow. (8th Ed.) 394-6; Lewis'f 
 
 Dow. 194. Perp. 483-4.
 
 260 
 
 THE RULE AGAINST PERPETUITIES. 
 
 Exercise of 
 Powers in 
 Mortgages, &c. 
 
 Estate &c. 
 behind estate 
 tail. 
 
 though the limitation depend on a contingency falling 
 beyond the perpetuity-period reckoning from the time 
 when the power was conferred, unless it fall beyond it 
 reckoning from the time when the limitation was made (a), 
 and this is often taken advantage of in Settling property on 
 a Woman so as to give her an absolute power of dispo- 
 sition and yet not entitle her husband to any interest 
 in the event of her dying intestate (b). Nor does the rule 
 apply to a limitation always capable of being Redeemed 
 (as by the payment of money), for example, a trust to 
 Accumulate income for the payment of incumbrances by 
 which the property is burthened (c), or a Sale under a 
 Power in a Mortgage (d). Nor does it invalidate a limi- 
 tation which is (e), (or but for belonging to the Crown 
 would be (/),) barrable by a Disentailing Deed (g) (i), 
 
 (i) Estates, Interests, &c, limited to commence after the commencement of an 
 Estate-tail, can be thus barred (A), whether they are to commence before (i), at 
 (j), or after, its expiration; and whether limited by (;'), or under the authority 
 of (fc), the dispostion which created the entail; unless they be trusts declared of 
 an estate which itself precedes the estate-tail (/), (in which case they cannot be 
 barred even though not exercisable until the estate-tail shall have fallen into 
 possession (/)). But a Shifting Clause framed to operate before the estate-tail 
 falls into possession cannot be barred (»«). Nor can a limitation which, before 
 the estate-tail falls into possession, is made under the authority of a power con- 
 ferred by the disposition which created the entail; at least if the power was so 
 framed as not to be exercisable after the estate-tail should have fallen into pos- 
 session (n). Nor does it seem clear that a power vested in Trustees can be 
 barred (o), although the authorities which decide that a Power simply Colla- 
 
 (a) See ante, p. 255 (9) (/<) (i) (j); 
 Sugd. Pow. (8th Ed.) 394-6-, Lewis's 
 Perp. 483-4. 
 
 (6) See ante, p. 67 (6) (c). 
 
 (c) Briggs v. E. Oxford, 1 D. G. M. 
 G. 363, in which the power (if literally 
 construed) extended to incumbrances 
 which should afterwards be, (as well 
 as to those which already were,) upon 
 the property. 
 
 (d) Lewis's Perp. 560 sqq. 
 
 (e) Heasemanv. Pearse, L. R. 7 Ch. 275 ; 
 Goodwin v. Clark, 1 Lev. 35, 1 Keb. 73; 
 Waring v. Coventry, 1 M. & K. 252; 
 Page v. Hayward, Pigot on Recoveries; 
 176; Gulliver v. Ashby, 4 Burr. 1929. 
 
 (f) Lewis's Perp. 710 sqq. 
 
 (jj) For a modification of this doctrine 
 
 see ante. p. 254 (/) and n. (1). 
 
 (h) 3 & 4 Wm. IV, c. 74, s. 15; Doe 
 V. E. Scarborough, 3 A. & E. 897; Coll- 
 ycr v. Mason, 2 B. & B. 685 (in which 
 the shares to be taken by each tenant 
 in tail were to be afterwards determined). 
 
 (i) Said Doe v. E. Scarborough. 
 
 (J) Doe v. Collier, 11 Ea 337; and 
 as to a Rent-charge Anon, 12 Mod. 513. 
 
 (i) Waringv. Coventry, 1 M.& Ke.252. 
 
 (/) Case v. Droxier, 5 M. & Cr. 246 ; 
 Sykes v. Sykes, L. R. 13 Eq. 56; Floyer 
 v. Banks. L. R. 8 Eq. 115. 
 
 (m) Doe v. E. Scarborough, 3 A. & E. 
 897. 
 
 (n) Roper v. Halifax. 8 Tau. 845; 
 Hill v. Pritchard, Kay. 394. 
 
 (0) Turvin v. Newcome, 3 K. & J. 18.
 
 THE RULE AGAINST PERPETUITIES. 
 
 261 
 
 Possibility of 
 Reverter. 
 
 whether such limitation be made under a Power (a) or not 
 (b), and whether it be framed to fall into possession before 
 (c) or at (d) or (I assume) after (e) the termination of the 
 Estate-tail, unless the limitation depend on a contingency 
 capable of happening after the perpetuity-period as reck- 
 oned from the expiration of the estate-tail (e), or (perhaps) 
 capable of happening after the perpetuity-period considered 
 as made up partly of the estates preceding and partly of 
 the period following the Estate-tail. Nor does the rule 
 apply to a Possibility of Reverter, because it also can be 
 barred (/), and because before the rule arose such possibil- 
 ities were allowed though they always necessarily depend on 
 contingencies capable of happening after the perpetuity- 
 period. Nor does it apply to a possibility of Escheat, Escheat, 
 because Escheat only occurs when the last holder of the 
 legal estate (g) (not the original feudatory) dies intestate 
 without heirs, and is therefore merely a kind of devolution 
 on intestacy, and because before the rule arose such 
 possibilities were allowed. Nor does it apply to a Rever- R eTer8 i n. 
 sion (h), (that is the portion of ownership which remains in 
 the owner after he has parted with a terminable interest in 
 the property,) for if the terminable interest be a fee Condi- 
 tional (i) a mere possibility of reverter remains, if it be an 
 Estail-Tail the case falls under the exception just discussed 
 (J), if a Life-interest the cases which establish the validity 
 
 teral cannot be released or extinguished by the Donee of it have no bearing on 
 this question. Nor can a Profit or Easement, (for example, a Rent (k),) be 
 barred unless it was derived out of some estate which the disentailing deed bars 
 (1). When a Husband and Wife are tenants in tail by entireties they must 
 join in the disentailing deed (m). 
 
 (a) Waring v. Coventry, 1 M- & K. 252. II Ch. 12; 13 & 14 Vic, a 60, s. 15, 
 
 (6) Heaseman v Pearse, L. R. 7 Ch. 
 275; Goodwin v. Clark, 1 Lev. 35; Page 
 v. Hayward, Pig. Rec. 176; Gulliver v. 
 Ashby, 4 Burr. 1929. 
 
 (c) Page v. Hayward; Gulliver v. 
 Ashby. [Clark. 
 
 (d) Heaseman v. Pearse, Goodwin v. 
 ^e) Involved in the discussion of 
 
 Bankes v. Holme, Sugd. H. L. 351. 
 (f) Ante, p. 49 (c) (d). 
 (</) Stephens's Commrs. Bk. II, pt. 
 
 46; and as^to the Beneficial estate see 
 Lewin on Trusts, 583; 13 & 14 14 Vic, 
 c 60, s. 47. 
 
 (A) Sugd. H. L. 351, pi. 10; said 
 Gooch v. Gooch, 3 D. G. M. G. 383. 
 
 (i) In the sense defined, ante,pA9 (6). 
 
 (j) Ante, p. 260 (g). 
 
 (Jfc) White v. West, Cro. El. 792. 
 
 (0 Said White v. West. 
 
 (m) Cuppledike's Case, 3 Co. 5b.; 3 
 & 4 Wm. IV, c. 74, s. 40.
 
 262 THE RULE AGAINST PERPETUITIES. 
 
 of a life-interest capable of lasting beyond the perpetuity- 
 period (a) shew that the rule does not apply, if it be such 
 an Estate for years as must end at a fixed time there is no 
 contingency (/>), if it be an Estate for Years terminable 
 with the death of a person in existence when the dispo- 
 sition is made (c) or to commence on the death of such a 
 person (d) there can be no contingency except during the 
 perpetuity-period, if it be a Term of Years terminable by 
 performance of some act (for example payment of money) 
 (e) it falls within another exception (/) to the rule, and 
 even if it be for years terminable on some other event its 
 validity has never I believe been doubted though it has 
 been thought that the limitation of a tenement to one for 
 years to cease when his descendants fail will nevertheless 
 not cease until the years have expired (g). These limi- 
 tations also were allowed before the Rule arose. Nor does 
 Vested the rule invalidate a limitation which, when made (h), is, 
 
 (or, it seems, is certain within the perpetuity-period, to be 
 (i)) free from all contingency except as to the time of 
 falling into possession, and which is intended to fall into 
 possession whenever a preceding interest, limited by the 
 same disposition, shall either come to an end or turn out to 
 be void; whether such preceding interest be an Estate-Tail 
 (in which case the exception already (;') stated applies), or 
 a Life-interest (k), or a Chattel Interest (/). But the rule 
 applies if the preceding interest be a Fee (m), or be carved 
 out of a Chattel Interest (m), besides which if it be a non- 
 
 («) Especially Hampton v. Holman, (h) As in Bennett v. Lowe, 7 Bing. 
 
 L. R. 5 C. D. 189, overruling Hayes v. 535. 
 
 Hayes, 4 Russ. 311. (i) See Walmesley v. Pilkington, 35 
 
 (6) See below, citing Wood v. Drew, Bea. 3C2, in which the duration of the 
 
 33 Bea. 610. subsequent limitation was not, though 
 
 (c) Accordingly, Fearne C. R. 22. its commencement was, certain when 
 
 (rf) Accordingly, Sykes v. Sykes, L. the disposition was made. 
 
 R. 13 Eq. 56. (j) Ante, p. 260 (g). 
 
 («) Accordingly, Anderson v. Pignet, (k) Bennett v. Lowe; involved also in 
 
 L. R. 8 Ch. 180. Walmesley v. Pilkington. 
 
 (f) Ante, p. 260 (c) (d). (/) For the reasons stated respecting 
 
 (g) See 5 Frazer's Coke's Reports, a Reversion in p. 262 (6) (g). 
 404, n. F. (Lovie's Case); Butler's note (m) Smith C. R. s. 126. 
 
 to Fearne C. R. 460.
 
 THE RULE AGAINST PERPETUITIES. 
 
 263 
 
 testamentary limitation of the legal estate directly (a) it is 
 void by other Rules (b). Nor does the perpetuity-rule Contingent 
 apply to such a Contingent Remainder as is, and until emaiD 
 either the contingency happens or the remainder becomes 
 void must continue to be, barrable. Therefore it does 
 not apply to a remainder of the class above (c) described 
 if the contingency happened before ist October 1845 (d), 
 nor if the remainder immediately followed an Estate-Tail 
 (c), or a life interest limited to a person who was alive 
 when the remainder was created (/). But the recent 
 enactment (g) which protects contingent remainders limited 
 since 2nd August 1877 against the technical rule already 
 (h) stated does not extend to those which, if they were 
 shifting clauses, would be invalidated by the rule against 
 perpetuities. And that rule is generally considered appli- 
 cable to Contingent Remainders even of the above class, 
 when preceded by a limitation of a Life interest to an 
 Unborn person (»'). At all events, a contingent limitation 
 to the child of an unborn person, so framed as to offend 
 against this rule, will be void either by it or by the rule 
 against double possibilities (/). And the Rule against Per- 
 petuities applies to Contingent Remainders affecting merely 
 the Beneficial interest (k). Nor can the Rule (on principle) Condition, 
 invalidate the avoidance (within the perpetuity-period) of 
 an estate by force of a Condition (/), even though the 
 Condition purport to be operative also beyond that period 
 
 (a) As to chattels, Malcolm v. Taylor, 
 2 R . & M. 445; Lepine v. Ferrard, 2 R. 
 & M. 378. 
 
 (b) Stated ante, p. 215 (i) 220 (/). 
 
 (<•) p. 217 ; Pickersgill v. Grey, 30 Bea. 
 352. 
 
 (d) See 8 & 9 Vic, c. 106, s. 8. 
 
 (e) Cole v. Sewell, 2 H. L. C. 186. 
 (/) Evers v. Challis, 7 H. L. 531. 
 (#) 40 & 41 Vic, c 33. 
 
 (h) Ante, p. 217. 
 
 (i) Assumed in Cattlin v. Brown, 11 
 Hare 3 (which also decides that these 
 remainders need not vest when thefirst 
 but only when the next preceding limi- 
 
 tation terminates). And see the dis- 
 cussion of the question in Theobald on 
 Wills, 288 sqq. 
 
 (j) Ante, p. 223; Theobald 290 sqq. 
 In Cadett T. Palmer, 1 C. & F 372, 
 Contingent limitations to the Children 
 of Unborn persons were held valid, but 
 they were not contingent remainders 
 of the above class, and they were so 
 framed as to exclude children born 
 after the perpetuity-period. 
 
 (Jfc) Theobald 292. 
 
 (/) For definition of a condition, see 
 ante, p. 247 (*).
 
 264 THE RULE AGAINST PERPETUITIES. 
 
 (a), nor the avoidance (at any time) of an estate by force 
 of a condition requiring performance of specified acts (b), 
 such as the payment of mortgage money (c), or of rent (d), 
 or other Annual Sum (e), or the performance of husbandry 
 covenants in leases (/")). Nor does the rule seem to invali- 
 date an avoidance, (even after the perpetuity-period,) of 
 an estate by force of any condition, when the original 
 disponor, (or his heirs, executors, or administrators,) is the 
 party avoiding it, for such conditions were usual before 
 the rule arose, and, being reserved to persons known and 
 ascertained, are only in part within the reason of the rule 
 (g). Nor does it seem to invalidate the avoidance of an 
 estate by force of a Condition annexed to a Reversion, 
 though the Assignee of the reversion be the party avoiding 
 it (h). However, only Conditions that Rent shall be paid 
 and Covenants proper to Leases performed will pass with 
 the reversion (i), except testamentarily (/). If the above 
 reasons for holding the rule inapplicable to Conditions in 
 Leases, respecting the mode of using the demised premises, 
 be thought insufficient, yet the importance to the common- 
 wealth of securing the performance of such covenants may 
 be thought sufficient to warrant the exception ; and this is 
 the only ground on which reentry by an assignee of the 
 reversion who was unborn when the lease was made can 
 be supported. And indeed the validity of conditions is 
 implied in the validity of conditional Covenants for the 
 perpetual Renewal of Leases (k). Nor does the rule seem 
 
 (a) By analogy to the rule respect- years (substituting the word "heirs" 
 
 ing powers stated, ante, p. 259 (e). for the word " Executors"), no doubt 
 
 (6) By analogy to the rule respecting of the validity of the conditions is 
 
 Powers of Sale redeemable by the entertained. Nor in England is any 
 
 payment of money, ante, p. 260 (c) (J), doubt entertained as to the validity of 
 
 (c) See Litt, s. 334, 336. conditions reserved in Leases for terms 
 
 (d) Litt., s. 337 (as to a reentry exceeding 21 years. 
 
 until the amount be levied). (g) See Lewis's Perp., 599, 614. 
 
 (e) Litt., s. 345. (/t) Ante, p. 208 (c) (</). 
 
 (f) In the North of Ireland, where (i) Co. Litt., 215b, pi. 12. 
 Fee-form Grants subject to such con- (j) 7 Wm. IV & 1 Vic, c. 26, s. 3. 
 ditions are very common, and are (£) See below. 
 
 drawn on the precedents of Leases for
 
 THE RULE AGAINST PERPETUITIES. 
 
 265 
 
 to apply to a Lease for years to a Born and Ascertained 
 person (a); nor to a creation, in favour of such a person, of 
 an Incorporeal hereditament, (for example, a Rent-Charge 
 (b), or a Right to Purchase Minerals (c)); nor does it pre- 
 vent the creation of an Easement enjoyable at specified 
 times only, (as the first ten days in each month (d)). 
 
 A Limitation which is free from contingency cannot (e) 
 transgress the rule merely because it is Executory (/) ; nor 
 can any limitation transgress it, merely because, by giving 
 interests to Infants (g), Lunatics, &c, it prevents alienation ; 
 or because it splits up the property into terminable or 
 partial interests (A); nor can a limitation of a Share which 
 must necessarily be ascertainable within the perpetuity- 
 period (i) transgress the rule merely because it forms part 
 of a limitation to a Class, the shares of some of whose 
 members may not be ascertained until after that period (ij) 
 nor can any limitation transgress the rule if the disponor's 
 interest be such as must terminate within the perpetuity- 
 period (/), (as, when it is a Leasehold for Lives in being 
 (k), or for twenty-one Years,) unless, either he has a right 
 to Renewal (/) (in which case his beneficial interest is per- 
 petual), or the lease &c. is actually renewed and thecontin- 
 
 Lease. 
 
 Creation of 
 Profit or 
 Easement. 
 
 Qualifications. 
 Executory 
 Interest. 
 Disabilities. 
 
 Partial 
 Interests. 
 
 Settlements 
 of Lifeholds, 
 &c. 
 
 («) Goodier v. Clarke, 1 Ke. 73, 78, 
 169, 246, 462, Sid. 102, where the Lease 
 was held valid. It was not however 
 on the ground of perpetuity that its 
 validity was impugned ; Lewis Perp. 6 1 3. 
 
 (b) Gilbertson v. Richards, 4 H. & N. 
 277, afterwards appealed, and, in 5 H. 
 & N. 453, affirmed on the ground that 
 the limitation was redeemable and 
 therefore fell within the principle 
 stated above p. 260, (&)(<-). But the Ap- 
 pellate Court thought there was some 
 ground for the position in the text and 
 it has been unequivocally approved in 
 Birmingham Canal Co. v. Cartwrighl, L. 
 R. 11 C. D. 421. 
 
 (c) Birmingham C. Co. v. Cartwright. 
 
 (d) Norlham v. Hurley, 1 E. & B.665. 
 («) See rule stated ante, p. 252. 
 (/) Wood v. Drew, 33 Bea. 610; for 
 
 definition of "Executory" see ante, p. 
 224. 
 
 (g) Said Ferrard v. Wilson, 4 Hare 
 374-5 ; Turvin v. Sewcome, 3 K. & J. 19. 
 
 (h) Said Gooch v. Gooch, 3 D. G. M. 
 G. 333-4; and many of the cases cited 
 in this Chapter. 
 
 (i) Cuttiut v. Brown, 11 Hare 372. 
 
 (j) Involved in Cadell v. Palmer, 1 
 C. & F. 372, explained, under the 
 name of Bengough v. Edridge, in Lewis 
 Perp. 678. These questions are dis- 
 cussed in Lewis Perp. 673-687, and I 
 have not found any later authority 
 except the affirmation of Bengough v. 
 Edridge. The rules stated in the text, 
 though clear on principle, seem doubt- 
 ful as to authority. 
 
 (k) Butler's Note to Fearne, C. R. 
 500. [502. 
 
 (/) Butler's Note to Fearne, C. R. 
 
 34
 
 2GG 
 
 THE RULE AGAINST PERPETUITIES, 
 
 Limitation for 
 Life, &c. 
 
 Limitation 
 following void 
 Limitation. 
 
 gency in question does not happen within the period to 
 which the original lease &c. would have endured ; nor can 
 a Limitation (a) incapable of lasting beyond the perpetuity- 
 period transgress the rule though it be incapable of com- 
 mencing until an event which may happen after that 
 period, because, if the event does not happen within the 
 period, the limitation &c. cannot commence at all. But 
 when a Chattel (corporeal (b) or incorporeal (c)), or a 
 Chattel Interest (c), is limited to one for life, to commence 
 on the dying out of the descendants of one to whom a 
 preceding estate therein is limited, such limitation for life 
 is void, for what reason it is impossible to say. But this is 
 confined to cases in which the words conferring the pre- 
 ceding estate are such as would have conferred an estate 
 tail if the subject had been a tenement and the disponor 
 had been owner in fee (d), and does not hold if the limi- 
 tation for life is to commence within the life of some other 
 person already in existence when the limitation is made, or, 
 being testamentary, takes effecl (e). Nor can a limitation 
 be held to transgress the rule merely because it follows one 
 which the rule invalidates (/), unless this fact leads the 
 Court to construe the limitation in question as meant to 
 take effecl only when the preceding limitation would, if 
 valid, have expired (g). But a limitation to a 3'ounger 
 Child, following (in course of Settlement) a prior limitation 
 to an elder or his issue, is construed as contingent on the 
 event which would terminate the prior limitation if that 
 
 (a) Boe v. Jeffery, 7 T. R. 589, as 
 interpreted in L. R. 7 Eq. 367. The 
 doctrine in the text is contradicted by 
 the head note of Fisher v. Webster, L. 
 R. 14 Eq. 283, hut not by that case 
 itself (for S was dead before the ques- 
 tion arose), nor by Hardcastle v. Hard- 
 castle, 1 H. & M. 405, (where the word 
 "conclude" in the head note should be 
 "commence." 
 
 (Jb) Malcolm v. Taylor, 2 R. & M. 
 444-5. 
 
 (c) E. Chatham v. Tothill, 7 B. P. C. 
 453. 
 
 (rf) Soutlwy v. Somervilk, 1 3 Vez. 493, 
 as to the plate, which was to go to J. 
 S. for life on either branch of a contin- 
 gency, one branch of wliich might have 
 happened after the perpetuity-period. 
 
 (e) Howard v. D. Norfolk, 2 Swan. 454. 
 
 (f) Goring v. .\as/i, 16 Sim. 395, and 
 see Longhead v. Phelps, 2 Bl. 704. 
 
 (g) Ante, p. 254 (<7), (A), (n); 255 (a).
 
 THE RULE AGAINST PERPETUITIES. 267 
 
 limitation were valid (a). Consequently such following 
 limitation may fail (b) by force either of this rule, or of that 
 already (c) stated respecting Legal Contingent Remainders 
 (d). Nor does the Perpetuity-rule invalidate a Covenant (in Renewable 
 a Lease) to perpetually Renew it to those who, when each 
 renewal is made, would, if the lease subsisted, be entitled 
 to the leasehold estate (c), for such a Covenant is equiva- 
 lent to a fee-farm grant of the beneficial estate. But it 
 invalidates a Covenant to renew to any other person (/). 
 A covenant to renew for a limited number of times is not a 
 perpetual estate, and its validity, perhaps, depends on the 
 same principles as that of a succession of remainders. It is 
 not invalidated by the perpetuity-rule, at least when con- 
 fined to one renewal (g). Nor does the rule invalidate a Executory 
 direction to settle estates as nearly pursuant as may be to a 
 course of devolution referred to, though this course be 
 expressed as comprising limitations forbidden by the Rule, 
 for such direction will be understood as meaning that the 
 Settlement is to be as near the course prescribed as the rule 
 will permit (h); and this holds even when the direction to 
 settle is merely implied (/z). 
 
 (a) Monypenny v. Derwg, 2 D. G. M. (e) Hare v. Surges, 4 K. & J. 57, L 
 
 G. 182; Brudenellv. Eiwes, 1 Ea. 442; 11-15. 
 
 Roulledge v. Dorril, 2 Vez. J. 356; case (f) Hope v. C. Gloucester, 7 D. G. M. 
 
 cited in Note to 2 Bl. 705. G. 047. 
 
 (6) Monyiienny v. Dering- Roulledge (</") Walmeshy v. Pilk'wgton, 35 Bca. 
 
 v. Dorril. 362. 
 
 (c) Brudenellv. Elwes. (h) Miles v. Harford, L. R. 12 G. D. 
 
 Id) Ante, p. 217. 691. 
 
 Trust.
 
 ( 268 ) 
 
 CHAPTER XXXI. 
 
 POINTS BEARING ON THE RULE AGAINST PEPETUITIES. 
 
 How far Rule It has been argued that the law ought to be administered 
 
 b^c f on the assumption that every one is cognizant of it, and 
 
 tion. that, therefore, a Clause must be considered as meant so 
 
 to operate that the Perpetuity Rule shall not invalidate it. 
 
 But it is, (on the contrary,) settled, that even an ambiguous 
 
 limitation must be construed in exactly the same way as if 
 
 the rule were unknown to the Draftsman (a). But this does 
 
 not prevent the application of the various rules of law or 
 
 construction which for other reasons so mould the effect of a 
 
 limitation as to make the perpetuity rule inapplicable ; nor 
 
 does it prevent that of the Cy pres doctrine, which assumes 
 
 that a limitation has been so Construed as to be invalidated 
 
 by the perpetuity rule, and then restores its validity by 
 
 making it operate in a different way from that which was 
 
 (admittedly) intended (b). 
 
 Whether A limitation by which an attempt is made to cut short 
 
 Sh'ftin^lause ( on a s P e °i ne d event) a preceding estate limited by the 
 
 prevents pre- same disposition is construed as indicating an intention 
 
 from ceasing, that the preceding estate shall cease on the event even 
 
 though the limitation prove invalid. This intention the 
 
 law carries into effect in cases in which the disponor was 
 
 entitled to make some limitation to take effect on the event 
 
 in question, as, when the cause of the invalidity of the 
 
 limitation is that it is made under a Power which (indeed) 
 
 authorized a limitation to be made on the event, but not to 
 
 the person designated (c). But the law makes the prece- 
 
 (a) JTeaseman v. Fearse, L. R. 7 Ch. v. Ellison, 19 Bea. 565. 
 283. (c) Doe v. Eyre, 5 C. B. 713; Beid v. 
 
 (6) Ante, p. 241 (c), 243 (e); Liddon Rtid, 25 Bea. 469.
 
 POINTS BEARING ON THE RULE, &C. 269 
 
 ding estate continue as if there had been no intention to cut 
 it short in cases in which the disponor was not thus entitled ; 
 as, when the event was one which might have happened after 
 the perpetuity-period (a), or when it was the same event on 
 which the property would have devolved by operation of 
 law (so that the limitation is void (b) under the rule 
 explained above (c)). And this holds good whether the 
 disposition be testamentary (d) or not (e); and, (at least if 
 the invalidity arises from the Perpetuity Rule,) though the 
 words plainly indicate an intention that the earlier estate 
 shall cease (/); or the effect be to give to some members of 
 a Class what was meant for all, (as, when a limitation to the 
 members of a Class to vest in each on the happening with 
 respect to him of an event capable of happening after the 
 perpetuity-period, is construed as a limitation to them all, 
 with proviso, that if any of them shall die before the hap- 
 pening as to him of the specified event, his share shall pass 
 over to the others (g). 
 
 Some of the cases which seem to bear on the question Duration of 
 whether the perpetuity rule invalidates a limitation under Powers - 
 a Power, cannot be understood without a knowledge of the 
 rule that a Power, conferred by a disposition which limits 
 undivided shares or a terminable estate, or which limits an 
 estate to a person under disability, is construed as meant 
 to be exercisable only while it is necessary for the purposes 
 of the disposition (h), and is held to become unnecessary 
 when the fee or perpetual interest falls into possession (*'). 
 That rule holds good whether the power be to Sell (/), or 
 
 («) Sugd. Pow. (8th Ed.) 514; Candy (f) Hodgson v. Hal ford. 
 
 V. Campbell, 2 C. & F. 421 ; Hodgson v. (g) Re Edmonson's Trusts, L. R. 5 Eq. 
 
 Halford, L. R. 11 C. D. 963; Brown $ 389 , Taylor v. Frobisher, 5 D. G. S. 201 ; 
 
 Sibly's Contract, L. R. 3 C D. 156. Knapping v Tomlinson, L. R. 3 Ch. 2; 
 
 (6) Holmes v. Godson, 8 D. G. M. G. Cult m v. Brown, II Hare 372. 
 
 152; Wilcocks's Settlement, L. R. 1 C. D. O) Doncaster v. Doncaster, 3 K. & J. 
 
 229. 38. 
 
 (c) Ante. p. 221 (/). (») Wolley v. Jenkins, 23 Bea. 53; 
 
 (d) Candy v. Campbell; Hodgson v. Wheate v. Hall. 17 Vez 86; conceded 
 Haljord; Holmes v. Godson. Mortlock v. Buller, In Vez. 314, /. 21-25. 
 
 (e) Brown $ Sibly's Contract; Wil- (j) As in Mortlock v. Buller; Wolley 
 cocks 's Settlement. v. Jenkins; Wheate v. Hall.
 
 270 POINTS BEARING ON THE RULE, &C. 
 
 Exchange (a), to Lease (b), to Elect (c), or otherwise; and 
 whether the disposition by which it is conferred be Testa- 
 mentary (d), or not (e) ; and though the power would not, 
 even independently of this rule, be exercisable after the 
 perpetuity-period (/) ; and though there be still subsisting 
 in the property a Jointure rent-charge (g), or a Charge (h) 
 (if it can be conveniently realized without the exercise of 
 the power (?')), or a Term of years securing such a charge 
 (/); or a Term "Attendant'' (a) (that is in trust for the 
 persons who would be entitled if there were no such term); 
 or a limitation in trust to preserve Contingent Remainders 
 (k)'; and though (when the disponor's estate was a Chattel 
 Interest) the limitation (by the falling into possession of 
 which the power is terminated) be such as (in a freehold) 
 would create an Estate-Tail (I) and would (therefore) not 
 put an end to the power (in); and though the power be 
 Fiduciary (n) ; and though the person entitled to the per- 
 petual interest desires that the power may be exercised (0) 
 (so that the doctrine is strictly one of construction, and does 
 not depend on the principle that the exercise of the power 
 without the consent of the party so entitled would be a 
 breach of trust). But this rule does not (1) apply while any 
 
 (1) The Court indeed said (p) that this was not generally so; hut probably 
 what the Court meant was, that, notwithstanding the subsistence of undivided 
 Shares, the power could not be exercised after the perpetuity-period. For (on 
 principle) there is as much reason why the power should continue exercisable 
 so long as two persons own the property concurrently as there is why it should 
 continue exercisable so long as two persons own it successively. 
 
 (a) As in Mortlock v. Buller; Wolley (g) Wolley v. Jenkins. 
 
 V. Jenkins ■ Wheate v. Hall. (/t) Wolley v. Jenkins ; Wheate v. Hall. 
 
 (b) Hinted in Trower v. Knightley, 6 (i) In Wolley v. Jenkins (23 Bea. 58) 
 Madd. 134. this was said to he essential. 
 
 (c) Doncaster v. Doncaster. (j) Wolley v. Jenkins. [292. 
 (rf) As in Trower v. Knightley. (k) As in Mortlock v. Buller, 10 Vez. 
 (e) As in Mortlock v. Buller; Wolley (/) Doncaster v. Doncaster, 3 K. & 
 
 V. Jenkins; Wheate v. Hall. J. 26; Ware v. Polhitl, 11 Vez. 283, as 
 
 (7) As in Mortlock v. Buller, 10 Vez. explained in 1 D. G. M. G. 370, and 
 
 292; Wheate v. Hall; Wolley v. Jenkins, in Sugd. Pow. (8th Ed.) 847, pi. 30. 
 
 p. 61. That a power of Sale is invali- (in) See below p. 271 (A). 
 
 dated by the perpetuity rule if not (n) All the cases cited. 
 
 accompanied by limitations for life or (o) Involved in Wolley]v. Jenkins, 23 
 
 otherwise restricted is laid down in Bea. 58-9. 
 
 Take v. Swinstead, 26 Bea. 529. (p) Taite v. Swinstead, 26 Bea. 529.
 
 POINTS BEARING ON THE RULE, &C. 271 
 
 undivided share subsists in the property (a) (at least if 
 a life estate still subsists in one of the shares (b), and espe- 
 cially if the disposition contained a clause directing the 
 donee of the power to divide the property amongst the 
 parties entitled (c)); nor while any terminable interest 
 subsists (d) (whether created by (s) or under the authority 
 of (/) the disposition by which the power was conferred, 
 and though being an estate-tail (g)); nor while any person 
 entitled by {a) the disposition by which the power was 
 conferred continues under Disability. Nor does it seem to 
 extend to powers which the donee may at any time, and 
 without the consent of any other person, exercise in his 
 own favour (h) ; nor to authorities which the parties upon 
 whom they are conferred are bound to exercise. 
 
 (a) Cooke's Contract, L. R. 4 C. D. (e) As in Lantsbery v. Collier. 
 
 454; Trower v. Knightley (in which (J) Browns Settlement, L. R. 10 Eq. 
 
 Minors were interested in one share), 353. 
 
 6 Madd. 134. (g) Said Lantsbery v. Collier, 2 K. & 
 
 (6) Taite v. Swinstead, 26 Bea. 552; J. 722; and the cases cited ahove p. 260 
 
 Trower v. Knightley. (e) sqq. 
 
 (c) Cooke's Contract. (Ji) Ante, p. 259 (A); 260. 
 
 \d) Lantsbery v. Collier, 2 K. & J. 709.
 
 ( 272 
 
 CHAPTER XXXII. 
 
 THE THELLUSON ACT AGAINST ACCUMULATION. 
 
 Accumulations 
 invalidated by 
 this Act. 
 
 Accumulations 
 invalidated by 
 the rule 
 against 
 Perpetuities. 
 
 A trust for the Accumulation of income is void (a), 
 whether the property be a Tenement (a) or a Chattel (a), 
 and whether the trust be imposed Testamentarily (a) or not 
 (a), if it was imposed since 28th July 1800 (a), or by a 
 testator who was alive and of sound mind after 28th July 
 1801 (b), and the subject was a Tenement situate in England 
 or Wales (c), or a Chattel (1) belonging to a person there 
 domiciled (c). But the rule does not apply to an accumu- 
 lation confined to {d) one of the following periods, namely, 
 the Life of the disponor (a), 21 years from his death (a), 
 and the minority of any person who, at his death, is already 
 born (a) or begotten (a), or who would, (if of full age,) be 
 entitled under the disposition to such income (a); nor 
 does it apply to so much of the accumulation (directed 
 for a period including but exceeding one of these) as may 
 take place within the period so included (e); nor to accumu- 
 lation for payment of any Debts of any person (/); or for 
 raising Portions for any child of the disponor (g); or of any 
 person taking an interest under the disposition (g); nor to 
 any accumulation of the produce of Timber (h) or Wood (h). 
 
 Such directions for Accumulation as are not invalidated 
 
 (1) Chattel interests in tenements are not in this sense chattels (c). 
 
 (a) 39 & 40 Geo. Ill, c. 98, s. I, 
 explained by Tench v. Cheese, 6 D. G. 
 M. G. 453. 
 
 (6) s. 4. 
 
 (c) Ellis v. Maxwell, 12 Bea. 104; 
 discussed in Freke v. L. Carbery, L. R. 
 16 Eq. 461. 
 
 (d) Wilsonv. Wilson, 1 Sim. N.S. 288 
 
 (e) Griffiths v. Vere, 9 Vez. 127, ex- 
 
 H. L. 
 
 tended by Williams v. Lewis, 6 
 1013. 
 
 (/) s. 2, explained by Matthews v 
 Keble, L' R. 3 Ch. 69 1 ; Tench v. Cheese, 
 6 D. G. M. G. 453. 
 
 (g) s. 2, explained by Matthews v. 
 Keble; Tench v. Cheese; Evans v. Hillier, 
 5 C. & F. 126; Theobald on Wills, 
 306-7. 
 
 (A) 8. 2.
 
 THE THELLUSON ACT AGAINST ACCUMULATION. 
 
 273 
 
 by the above enactment are nevertheless restrained by the 
 Rule against Perpetuities to the period allowed by that 
 rule (a), and that rule is, in such cases, the only restriction 
 upon Accumulation (b). 
 
 The income directed to be accumulated, but the accumu- 
 lation of which this enactment forbids, belongs to the person 
 who would have been entitled to it if the disposition had 
 not been made (c). 
 
 A direction for accumulation is construed in the same 
 sense as if the above enactment (d) had not been passed, 
 although it might be thought that the Testator must have 
 meant to direct such an accumulation as the Act would not 
 invalidate (e), the principle being similar to that adopted 
 respecting the Perpetuity Rule (/). 
 
 Who entitled 
 to income 
 ineffectually 
 directed to be 
 accumulated. 
 
 Construction of 
 directions for 
 Accumulation. 
 
 (a) Ante, p. 256; Theobald on Wills, 
 304, I. 1. 
 
 (6) Thellusonv. Woodford , 1 1 Vez.812. 
 
 (c) 39 & 40 Geo. Ill, c. 98, s. 1, ex- 
 plained by Weatherall v. Thornburgh, L. 
 R. 8 C. D. 261; Harbin v. Masterman, 
 
 L. R. 12 Eq. 559; Matthews v. Keble, 
 L. R. 3 Ch. 69 1 ; Simmons v. Pitt, L. R. 
 8 Ch. 978. 
 
 (rf)39 & 40 Geo. Ill, c. 98. 
 
 0) Evans v. Hillier, 5 C. & F. 113. 
 
 (f) Ante, p. 268 (a) (6). 
 
 35
 
 ( 274 ) 
 
 CHAPTER XXXIII. 
 
 LAWS AGAINST DISPOSITIONS IN MORTMAIN OR FOR OTHER 
 PURPOSES OF A PERMANENT CHARACTER. 
 
 Introductory 
 remark. 
 
 Trust for 
 durable pur- 
 pose void. 
 Rule. 
 Exceptions. 
 
 Purposes fall- 
 ing under the 
 1st exception 
 as Conducive 
 to the Public 
 ■welfare. 
 
 The Rules discussed in the two preceding Chapters 
 invalidate limitations which, for too long a period, remain 
 Contingent, but dispositions are sometimes made for pur- 
 poses whose nature precludes alienation, and it is to the 
 rules framed to keep these within bounds that we must 
 now direct our attention. 
 
 A trust to apply income to a purpose of a durable 
 character is void (a) if so framed that it might endure 
 beyond the Perpetuity-period (b); but not if the purpose 
 be one which the law favours as conducing more to the 
 public welfare than does the power of alienation (c) ; nor if 
 it be merely a gift to a Corporation for its corporate 
 purposes (d) (i), which indeed is not strictly a trust (e) 
 except in case of a Municipal Corporation (/). And of 
 course a gift to the persons who happen at the Donor's 
 death to compose a specified Community will not fall under 
 the rule unless burthened with a trust for their official 
 purposes (n). 
 
 The purposes which the law favours comprise "purposes 
 
 (i) Other rules however, (which are stated below,) exist for keeping these 
 forms of Perpetuity within bounds. 
 
 (n) A gift to a Convent, the inmates of which did not undertake the active 
 administration of Charity, was construed in this sense, although the gift pur- 
 ported to be simply to the "D. Convent" (<?); but in the same case a gift to 
 another Convent, the inmates of which were bound to perform words of Charity, 
 ■was construed as therefore given upon a Charitable Trust, and consequently 
 falling under the provisions of the Act (A) discussed in a former page (»)• 
 Money seems to have been the subject of both gifts, though some of it was 
 charged upon Land. 
 
 (a) Re Dutton, L. R. 4 Ex. D. 54. 
 (6) Suggested, re Dutton. 
 
 (c) See below. 
 
 (d) Lewin on Trusts, (5th Ed.,) 28- 
 9 ; Vin. Ab. " Corporation " G. 6. 
 
 (e) See Colchester v. Lowton, 1 V. & 
 B. 226. 
 
 (f) 5 & 6 Wm. IV. c. 76. 
 
 (g) Cocks v. Manners, L. R. 1 2 Eq. 574. 
 (ft) 9 Geo. II., c. 26. 
 
 (i) Ante, p. 135.
 
 LAWS AGAINST DISPOSITIONS IN MORTMAIN, &C. 275 
 
 useful and beneficial to the Public, and which, in the wide 
 sense of the term, are called Charitable Uses" (a); namely, 
 Public Charities (b); the promotion of Religion (c), or 
 Learning (d); Public Works (e); and the like; and, in par- 
 ticular, certain grants for Churches (/), Churchyards (/), 
 Parsonages (/), Glebes (/), or certain other Religious (g) 
 or similar purposes (g) ; or for certain Parks (//), Schools (A), 
 Museums (h), or Libraries (h); and, (it seems,) the settle- 
 ment of an Advowson upon trust to present such Clergyman 
 as the trustees, or as some elective body, may determine (i), 
 and the printing and publishing of Writings advocating 
 the tenets of a seel, (such as the writings of Joanna 
 Southcote (/);) but not the saying of Masses for the Dead 
 (k); nor the repairing of Private Tombs (/), or Private Burial 
 Places (m); nor, save so far as the above Acts apply, the 
 maintenance of a Library («); nor the preservation of a great 
 man's former residence as a Museum in his memory (o). 
 
 Some of the trusts which fall under the above rule fall Trusts for 
 
 also under a stricter statutory one ; for a trust (p) for a c ? rtain Reh " 
 
 J z ' gious purposes 
 
 Church or Brotherhood, or to pay for Religious Services, void. 
 
 (a) Said Neo v. Neo, L. R. 6 P. C. (/<) 34 & 35 Vic , c. 13. 
 
 394; and see 43 El., c. 4, by analogy (i) TLis subject is discussed in Lewis 
 
 to which the Courts have been guided Perp. 094-707. But the Court seems 
 
 in deciding what are such; and for a to have thought in Carter v. Cropley, 
 
 list of such purposes Bee Lewis on Per- 26 L. J.Ch. 240, and in Shaw v. Thom- 
 
 petuity, 692-3. son, L. R. 3 C. D. 233, that such limi- 
 
 (6) As to what are so deemed see the tations are valid, 
 
 extreme case of Gillam v. Taylor, L. R. (J) Thornton v. Howe, 31 Bea. 14. 
 
 16 Eq. 581; qualified by Thomas v. (it) West v. Shultleworth, 2 M. & Kg. 
 
 Howell, 43 L. J. Ch. 799. 684; re BlundeWs Trusts, 30 Bea. 360. 
 
 (c) West v. Shutlleworth, 2 M. & Ke. (/) Rickard v. Eobson, 31 Bea. 234; 
 
 684; Hoare v. Osborne, L. R. 1 Eq. 585; re Birkelt, L. R. 9 C. D 576. 
 
 Beaumont v. Oliveira, L. R. 4 Ch. 309; (m) A'eo v. Neo, L. R. 6 P. C. 395. 
 
 Wilkinson v. Lingren, L. R. 5 Ch. 570; (m) Came v. Long, 2 D. G. F. J. 75 
 
 re Michel's Trusts (Judaism), 28 Bea. 39. (decided in 1853, 16 Vic.) The limits 
 
 (tf) Whicker v. Hume, 1 D. G. M. G. of this doctrine are discussed in Har- 
 
 506. rison v. M . Southampton, 2 S. & G. 387. 
 
 (e) Att. -General v. Eastlake, 11 Hare (o) Thomson v. Shakespear, 1 D. G. 
 
 205. F. J. 399 
 
 (/) Statutes cited in the Govern- (/>) 23 II. VIII, c. 10, s. 2. not affec- 
 
 ment Index (4th Ed.) 659. ted by the Act for relief of Roman 
 
 (g) 30 & 31 Vic, c. 133, 36 & 37 Catholics, 31 Geo. Ill, c. 32, s. 17. 
 Vic, c 50.
 
 276 LAWS AGAINST DISPOSITIONS IN MORTMAIN, &C. 
 
 Co-owners 
 entitled each 
 to dispose of 
 his share 
 ■without the 
 concurrence of 
 the others. 
 
 or the like (i), or anything done to evade this enactment (a), 
 is void, though within the perpetuity-period, if so framed as 
 to exceed twenty years from its commencement (b), unless 
 it be created by Will and relate to tenements situate in a 
 locality where the Custom of making such testamentary 
 gifts has immemorially prevailed (b). 
 
 Co-owners are permitted freely to dispose each of his 
 share without the consent of the other (c), and to require 
 that the property thus owned be sold (d) (n) or partitioned 
 (e) (m); and they have these rights whatever the technical 
 nature of the ownership may be (/); except that when it 
 exists between Husband and Wife the concurrence of 
 both is necessary (g) subject to the husband's rights 
 as stated in a former chapter (h); and except that Part- 
 ners cannot dispose of the Partnership property while 
 the Partnership continues (i) unless all concur, but any 
 single partner can at his pleasure compel a Dissolution 
 (J), unless the contrary was provided by the Partnership 
 articles (k), and the death of any Partner creates a Disso- 
 lution (/), though, if the Executors of the deceased Partner 
 be willing to sell his share to the survivors (m), the latter 
 often form a renewed Partnership. It is however doubtful 
 (n) whether the death or retirement of one (or some) 
 
 (l) The Statute is expressed as applying only to trusts declared by the Trus- 
 tees, but, as the word "by" then meant "by means of we must understand it 
 as applying to trusts which the settlor directs to be carried out by means of 
 trustees. 
 
 (n) That is as a Rule, bur he Court has a discretion (o). 
 
 (in) That is, except when a Sale is granted under note (o). 
 
 (a) 23 H. VIII, c. 10, s. 4. 
 (6) s. 5. 
 
 (c) Joint Tenants — Wiscofs Case, 2 
 Co. 60b. 
 
 (d) 31 & 32 Vic, c. 40, amended in 
 detail by 39 & 40 Vic, c 17. 
 
 (e)3l H. VIII, c 1; 32 H. VIII, c. 
 32. And as to partitions by the aid of 
 the Inclosure Commissioners see the 
 acts stated in the Government Index 
 (4th Ed.), "Inclosure," especially the 
 11 & 12 Vic, c 99. s. 13, 14; the 15 
 & 16 Vic, c 79, s. 17; and the 22 & 
 
 23 Vic. c 43, s. 11. 
 
 (/) Authorities cited in the three 
 preceding notes. 
 
 (#) Smith, Real and Personal, 240 (o). 
 
 (A) Ante, p. 54-59. 
 
 (i) 1 Lindley on Partnership, (4th 
 Ed.) 58 pi. 3, /. 4. 
 
 O") 1 Lindley 218,220-1. 
 
 (ifc) 1 Lindley 218. 
 
 (/) 1 Lindley 231-2; 2 Lindley 1044. 
 
 (m 2 Lindley 1046. 
 
 (n) 1 Lindley 232-4.
 
 LAWS AGAINST DISPOSITIONS IN MORTMAIN, &C. 277 
 
 of the partners in an unincorporated Company will 
 cause its dissolution (so that any continuance of it shall 
 be deemed a new Partnership), or whether the advantages 
 derivable by the public from the existence of such Com- 
 panies will not outweigh the advantages derivable from a 
 strict application of the rules devised to prevent Partner- 
 ships being so managed as to create a perpetuity (regard 
 being had to the fact that each share in such a Company is 
 freely disponable). And Companies formed under the 
 Companies Acts (a) are Corporations (b), and therefore fall 
 under an entirely different rule. 
 
 A number of persons associated together for a lawful Communities 
 purpose can accomplish that purpose much more effect- snd As ^ocia- 
 
 . tions not 
 
 ually when the purpose is, itself, regarded as a person, recognized as 
 acting by the Association as its representatives, and such exce'Tin 01 * 8 
 an Association, when the law thus regards their purpose, certain cases, 
 is called a "Corporation." It is usual for Partners, Reli- 
 gious communities, and others, to regard themselves as 
 thus incorporated, and to keep their accounts on that 
 principle, but our law, (lest perpetuities should be thus 
 created,) refuses to recognize any such incorporation except 
 when some Act of Parliament, or Royal Charter (c), or 
 Crown-grant (d), has sanctioned it, in which case the law 
 infers that the benefits derivable from the purpose for 
 which the Corporation has been formed outweigh the evils 
 of perpetuity. The Legislature has authorized any person 
 having a fee-simple estate to found and incorporate an 
 Hospital, or Abiding place, or House of Correction, for 
 the Poor (e) ; and any seven or more persons, associated for 
 a lawful purpose, may incorporate themselves by comply- 
 ing with the Companies' Acts 1862 to 1879 (/). It does not 
 
 (a) 25 & 26 Vic, c. 89, and the Vin. Ab. "Corporation" B 1,3. 
 other acts specified in the 42 & 43 Vic. (rf) Tone Conservators v. Ash, 10 B. 
 C. 76, s. 3. & C. 349; said Chilton v. C. London, L. 
 
 (b) 25 & 26 Vic, c. 89, s. 6. R. 7 C. D. 735. 
 
 (c) 1 Lindley on Partnership (4th («) 39 El., c. 5, s. 1 (5). 
 Ed.) 4, and see an extreme case in (f) 25 & 26 Vic, c. 89, s. 6.
 
 278 LAWS AGAINST DISPOSITIONS IN MORTMAIN, &C. 
 
 Corporations 
 forfeit Tene- 
 ments acquired 
 by them. 
 
 however follow that when a Corporation has been formed, 
 and thus enabled to acquire property, it will be allowed to 
 hold it as freely as an individual. Chattels Personal, 
 indeed, it may, but as regards interests in Tenements, a 
 number of Statutes have seriously impaired this right. 
 
 A Corporate body (i) forfeits any tenement (which it may 
 have acquired) to the Lord of whom that tenement is held 
 (a) (n), if he enter (b) within a year (a), and to the Lord of 
 whom he holds if the former neglect to enter for a year and 
 the latter enter within a half-year following (a), and so on 
 (a), and in case of slackness on the part of the Lords (a), or 
 if the property be not held of any Lord (as in case of an 
 Incorporeal tenement (c)), the King may have it, but must, 
 in case of land, give it to some private person to hold of 
 the former lord (a); in addition to which the King himself 
 is presumed to be the lord of whom it is holden till the 
 contrary appears (d). And these rules apply (as far as 
 their nature admits) though the estate of the Corporation 
 be merely Beneficial (e) ; but they do not apply to property 
 which the Crown has Licensed the donor to grant, or the 
 corporation to acquire or hold (/), nor to certain cases in 
 which certain corporations are, to a greater or less extent, 
 authorized by statute to hold lands. These include Com- 
 panies (g); the Ecclesiastical Commissioners (h); Poor-law 
 Guardians (*); Burial Boards (/); Charity Trustees (k); the 
 
 (i) Literally, the tenements which the Statute subjects to forfeiture are those 
 conveyed to a "dead hand," that is, a hand incapable of performing feudal 
 services. The Statute specially mentions gifts to Monasteries. 
 
 (n) The reason why these Statutes were passed was to prevent the feudal 
 Lords being cheated of their services; but the reason they are retained on the 
 Statute Book is, I think, to prevent Perpetuity. 
 
 («) 7 Ed. I, st. 2; 13 Ed. I, c. 32; 
 explained by 15 R. II, c. 5; 31 Geo. 
 Ill, c. 32, s. 17. 
 
 (6) See Vigers v. D.St. Paul's, 19 
 L. J. Q. B. 86-7. 
 
 (<•) 21 Ed. Ill, 5. 
 
 (<0 Wms\ R. P. (6th Ed.) 115. 
 
 (0 15 R. II, c. 5. 
 
 (/) 7 & 8 Win. Ill, c. 37. 
 
 ig) Especially 25 & 26 Vic, c. 89, 
 s. 18, 21, 191. 
 
 (h) 6 & 7 Wm. IV, c. 77, s 1. 
 
 (i) 5 & 6 Wm. IV, c. 69, s. 7. 
 
 O") 15 & 16 Vic, c. 85, s. 24; 16 & 
 17 Vic, c 134, s 7. 
 
 (*) 33 & 31 Vic, c 34; 16 & 17 
 Vic.,c. 137, s. 27; 18 & 19 Vic, c. 124, 
 s. 35, 41; 35 & 36 Vic, c. 24.
 
 LAWS AGAINST DISPOSITIONS IN MORTMAIN, &C. 279 
 
 Board of Works (a); Universities (b) and Colleges (b); 
 
 Drainage Boards (c); Highway Boards (d); Local Boards 
 
 (e); Sanitary Authorities (/); the Prison Commissioners (g); 
 
 the Foundling Hospital (h); the Surgeons' and Barbers' 
 
 Company (*); the British Museum (_/"); the Marine Society 
 
 (A); the Clergymen's and Widows' Association (I); the 
 
 Seamen's Hospital (in); Greenwich Hospital (»); the 
 
 Science & Art Department (o); Queen Anne's Bounty (p); 
 
 and Hospitals, Abiding Places, or Houses of Correction, 
 
 for the Poor (q). 
 
 There is no rule prohibiting a series of limitations to one, Limitation of 
 
 and his son, his son's son, and so on, each to take a chattel interests to 
 
 interest terminable with his death (r). ChildofUnbom 
 
 . ^ r ^ • r i ^ person valid. 
 
 As an example of the anxiety ot the Courts to ensure Right to 
 
 that every kind of property shall be alienable, I might add, No ™ lnate . 
 
 that even the right which the founder of an Institution able. 
 
 reserves to himself and his heirs, to nominate the Master of 
 
 it, may be disposed of by him or his heirs (s), or their 
 
 assigns (s). 
 
 (a) 18 & 19 Vic, c. 120, s. 42-43; (*) 12 Geo. Ill, c. 67, s. 1. 
 
 40 & 41 Vic, c. 35. (/) 15 Geo. Ill, c. 24, s. 1. 
 
 (6) 19 & 20 Vic, c. 88, s. 51; 20 & (»«) 3 & 4 Wm. IV, c. 9, s. 1, 2. 
 
 21 Vic, c.25, s. 4; 40 & 41 Vic, c. 48, («) 28 & 29 Vic, c 89, s. 42, 44; 12 
 
 s. 60; 4 & 5 Vic, c 39, s. 13. & 13 Wm. Ill, c 13; 25 Geo. II, c 42. 
 
 (c) 24 & 25 Vic, c. 133, s. 66. (o) 38 & 39 Vic, C 68; 21 & 22 
 
 (</) 25 & 26 Vic, c. 61, s. 9. Vic, c 36, s. 2. 
 
 (e) 38 & 39 Vic, c. 55, s. 7. (p) 2 & 3 Ami., c 20, (in Ruffhead 
 
 (/) 39 & 40 Vic, o. 56, s. 8. 0. 11,) s. 4, 5. 
 
 (g) 40 & 41 Vic, c 26, s. 6. (y) 39 El., c 5, made perpetual by 
 
 (/«) 13 Geo. II, c. 29. 21 Ja. I c. 1. 
 
 (0 18 Geo. II, o. 15, s. 1, 12. (r) Cadell v. Palmer, 1 C. & F. 372. 
 
 0) 26 Geo. II, C. 22, S. 14; 5 Geo. (s) Att-Gen. v. M. Brentwood School, 
 
 IV, c. 39, s. 3. 3 B. & Ad. 59.
 
 ( 280 ) 
 
 CHAPTER XXXIV. 
 
 MISTAKEN BELIEF AS AFFECTING THE VALIDITY OF 
 CONTRACTS, &C. 
 
 Definition of 
 the kind of 
 Mistake here 
 discussed. 
 
 Mistake 
 
 invalidates the 
 Contract, &c. 
 Rule. 
 
 Mistake of 
 Fact. 
 
 In this Chapter we have not to deal with the cases in 
 which dispositions are rectified because at variance with 
 the intention, for that is an enquiry subordinate to the rule 
 already (a) discussed respecting the necessity of an inten- 
 tion to dispose to the validity of the disposition (i). Nor 
 are we here concerned with that kind of mistake which 
 occurs, when two contracting parties, by the same words, 
 understand different things, so that there is in fact no 
 contract. We have here to deal only with Ignorance or 
 Mistaken belief as to facts or law; and even this, when 
 arising from misrepresentation, will form the subject of a 
 distinct chapter, in which several cases of mistake induced 
 (intentionally or otherwise) by the conduct of the opposite 
 party are discussed, as being instances in^ which conceal- 
 ment of the truth, with conduct substantially amounting to 
 misrepresentation, was the efficient cause in invalidating 
 the Contract (b). 
 
 A Mistaken belief (or Ignorance), such as makes a contract 
 (c) or disposition (d) appear more advantageous to a con- 
 tracting or disposing party than it really is, entitles him to 
 
 (i) It appears however that even in case of mistake of this kind the party 
 benefitted by the mistake may give rescission instead of rectification if he prefers 
 it (e); and so the insertion in a contract of a clause not intended will disentitle 
 the party favoured by it to specifically enforce the contract (/). 
 
 (a) Ante, -p. 94. 
 
 (6) See especially Denny v. Hancock, 
 Torrance v. Bolton, fyc., as cited in 
 the next Chapter, where I treat of 
 Concealment. 
 
 (c) Jones v. Clifford, L. R. 3 C. D. 
 779; Cochrane v. Willis, L. R. 1 Ch 58; 
 
 Robinson v. Dickenson, 3 Russ. 399, 412. 
 
 (</) Hitchcock v. Giddings, 4 Pri. 135; 
 Robinson v. Dickenson. 3 Russ. 413-14. 
 
 (e) Bloomer v. Spittle, L. R. 17 Eq. 
 427. 
 
 (/) Watson v . Marston, 4 D. G. M. 
 G. 230.
 
 MISTAKEN BELIEF AS AFFECTING VALIDITY, &C. 281 
 
 treat it as void and obtain Restitution; for example, 
 Ignorance of a fact by force of which all that the party 
 could obtain under the Contract is already his (a), or of a 
 fad which renders invalid a marriage which forms the 
 consideration for the disposition in question (by And this 
 holds, though the party seeking rescission has some Colla- 
 teral motive (c) ; and though the disposition affected by the 
 mistake be Testamentary (d), (at least if the mistake appear 
 on the face of it (d)); and though the disposition be a 
 Family Settlement (e), (at least if the opposite party 
 caused the mistake (<?); and though the mistaken party 
 could have discovered the truth by examining his own 
 Title Deeds (/), (at least if they be old ones (/)); and 
 though a Long period elapsed before discovery of the 
 mistake (g) ; but only if either the transaction was Gratui- 
 tous (A), or the mistake was Common to both parties (i) (i), 
 or (when one of them acted through an Agent) common to 
 that agent and the other party (J), or the mistake was caused 
 (intentionally or otherwise) by the party who seeks to treat 
 the agreement as valid (k) (for it is not sufficient that he 
 knew of the other's mistake (I)), or the mistake consisted in 
 
 (i) The reason of this seems to be, that the Contract or disposition is consi- 
 dered conditional on the correctness of the belief under which it is made (m). 
 
 (a) Jones v. Clifford; Cochrane v. Willis, mistake was Common to both in Rob- 
 (6) Robinson v. Dickenson. inson v. Dickenson; Jones v. Clifford; 
 
 (c) Denny v. Hancock, L. R 6 Ch. 1. Hitchcock v. Giddings; E. Beauchamp 
 
 (d) Campbell v. French, 3 Vez. 321. v. Winn (see p. 233); Cooper v. Phibbs, 
 The so called mistake in Powell v. L.R. 2 H.L. 149; and Davies v. Morier, 
 Mouchett, 6 Madd. 216, and in some 2 Coll. 303. 
 
 similar cases, consisted in the omission (J) Cochrane v. Willis, L. R. 1 Ch. 58. 
 
 of something which the Testator had (k) Said E. Beauchamp v. Winn, L. R. 
 
 intended to include, and therefore falls 6 H. L. 233. This was the case in 
 
 under a different rule. Bingham v. Bingham, Hov. Sup. to Vez. 
 
 (e) Fane v- Fane, L. R. 20 Eq. 698; 81; Fane v. Fane, L. R. 20 Eq. 698; 
 Gordon v. Gordon, 3 Swan. 467. Harvey v. Cooke, 4 Russ. 34; Thompson 
 
 (f) Said E. Beauchamp v. Winn, L. R. v. Eastwood, L. R. 2 Ap. 231-2; and 
 6 H. L. 233-4, the Court seems to have also considered 
 
 (</) S. C. 232. it the case in Dunnage v. White, 1 Swan. 
 
 (/i) Campbell v. French, (Testamen- 151; Gordon v. Gordon, 3 Swan. 467. 
 tary disposition), 3 Vez. 32 1 . (/) Smithv. Hughes, L. R. 6 Q. B. 597. 
 
 (i) Said E. Beauchamp v. Winn, L. R. (m) Cochrane v. Willis, L. R. 1 Ch. 
 
 6 H. L. 233, citing several cases. The 63, /. 29-30; see also ante, p. 150 (6). 
 
 36
 
 282 MISTAKEN BELIEF AS AFFECTING VALIDITY, &C. 
 
 Exceptions. 
 Mistake in Law 
 
 Mistake in 
 Calculation. 
 Objection 
 stipulated 
 
 aajainst. 
 
 Sale under 
 tbe Court. 
 
 Death of the 
 
 mistaken 
 
 party. 
 
 Tart Perform- 
 ance. 
 
 ignorance by a party of his rights, or of a plain Rule of Law 
 by which those rights were conferred (a) (i); and not if the 
 point mistaken be a matter of Law (b), (or even the interpre- 
 tation of a written document (c)), unless it be a clear 
 simple point (d), or be as to a Private Right (e) (especially 
 when depending on the interpretation of a document (/) ), 
 or was made by a Fiduciary in his own favour against his 
 beneficiary (g) (n); nor (it seems) if the mistake be on a 
 matter of Calculation (k); nor if the Contract preclude the 
 party who seeks relief from objecting on a ground which 
 includes the point as to which the parties were mistaken (i), 
 unless the fact (if known) would have shewn that all which 
 that party could obtain under the Contract was already his 
 (/'). Nor does mistake now form a ground for Opening the 
 Biddings on a Sale under the Court (k). 
 
 Nor (it seems) does mistake afford a ground for relief 
 after the death of the mistaken party, unless he would 
 probably have sought the relief if he had been alive (/) ; nor 
 (of course) if the circumstances be such that even a mis- 
 representation would not entitle the deceived party to relief 
 (m). A mistaken party seems to be precluded from resisting 
 
 (i) It must not be inferred that these restrictions extend to mistakes in the 
 framing of legal documents (»). 
 
 (n) A Fiduciary also wbo neglects to take proper professional advice, 
 and consequently mistakes the legal rights of the beneficiaries, is bound to 
 compensate those injured thereby (o), though he is not entitled to reimburse- 
 ment (o). 
 
 (a) Pusey v.Desbouvrie, 3 P. W. 316. 
 
 (6) Eaglesfield v. M. Londonderry, 
 (Purchase of Shares) L. R. 4 C D. 693; 
 Rogers v. Ingham (Payment), L. R. 3 C. 
 D. 351 ; Kitchin v. Hawkins (Acceptance 
 of Composition), L. R. 2 C.P. 22 ;Cur- 
 rie v. Goold (payment of taxes by a Fi- 
 duciary) 2 Madd. 163. In Smith v. 
 Allsop, 13 Pri. 823, the mistake was 
 one of fact. 
 
 (c) Powell v. Smith, L. R. 14 Eq. 85. 
 
 (d) Thompson v. Eastwood, L. R. 2 
 Ap. 231-2; Pusey v.Desbouvrie, 3 P. W. 
 316; Lansdown v. Lansdown, Mos. 364; 
 said Naylor v. Winch, 1 S. & St. 564. 
 
 (e) Cooper v. Phibbs, (Executory 
 Agreement), L. R. 2 H. L. 149; Pusey 
 v. Desbouvrie, (Release), (the case was 
 
 afterwards compromised), 3 P. W. 316. 
 
 (f) E. Beauchamp v. Winn, 6 H. L. 
 231-2; Earvey v. Cooke, 4 Russ. 34. 
 
 (g) Davies v. Morier, 2 Coll. 303. 
 (h) See Griffiths v. Jones, L. R. 15 
 
 Eq. 279. 
 
 (i) Best v. Hamand, L. R. 12 C. D. 1. 
 
 (j) Jones v. Clifford, L. R. 3 C. D. 
 779; Cochrane v. Willis, L. R. 1 Ch. 58. 
 
 (fc) 30 & 31 Vic, c. 48, s. 7; Griffiths 
 V. Jones. 
 
 (?) Said Cholmondeley v. Clinton, 1 Bli. 
 101-2. 
 
 (m) This follows a fortiori. As to 
 such cases see next Chapter. 
 
 (n) Harris v. Pepperell, L. R. 5 Eq. 1. 
 
 (o) Hilliard v. Fulford, L. R. 4 C. D. 
 389.
 
 MISTAKEN BELIEF AS AFFECTING VALIDITY, &C. 283 
 
 (on the ground of the mistake) an Action for damages (for 
 breach of the Contract induced by the mistake) by the 
 fact that he has accepted a Part Performance of it (a). And 
 a purchaser is precluded by Conveyance from resisting on 
 on the ground of mistake as to the title (i) &c, an action 
 for Specific Performance (b), at least if the purchase money 
 has been paid, (though only by a cheque afterwards stopped 
 (c), or by payment into Court before appropriation (d)). And 
 the inability to restore what be acquired under the mistake, 
 (as, by reason of his having sold it,) precludes him even 
 from restitution (e), at least if the sale was subsequent to 
 the discovery of the mistake (e), unless the Crown be the 
 mistaken party (/), or the parts which cannot be restored 
 are trivial (g), or (it seems) are capable of being compen- 
 sated for by money (g). 
 
 Yet when parties who intended to intermarry, (but who 
 were ignorant of a fact which rendered a consent necessary 
 to the marriage), made a settlement in consideration of the 
 marriage, and married without the consent, the Settlement 
 was held to be invalidated by the mistake, although cohab- 
 itation had taken place, and although the settlement con- 
 ferred interests on such children as might be born (h). 
 However, in that case both the parties agreed to rescind 
 the settlement, and no children had then been born (so 
 that no third person interested under the settlement had 
 come into being, though the parties afterwards solemnized 
 
 (i) A mistake on a question of Private Right stands on the same ground as 
 one of Fact (i). It has been held (c) that a conveyance which purports to give 
 the Purchaser all that he expected to obtain may be rectified at the Vendor's 
 suit, and that the purchaser is as fully precluded by accepting it as by accept- 
 ing a conveyance giving him merely what was comprised in the contract. 
 
 (<j) See discussion in Freeman v. Jef- ance of a Fraud. 
 
 fries, L. R. 4 Ex. 189. (f) Said Cummitigv. Forrester, 2 J. 
 
 (6) Allen v. Richardson, 41 L. T. N. & W. 348. 
 
 S. 615; Thomas v. Powell, 2 Cox 394. (g) Said in effect Beauchamp v. Winn, 
 
 (c) Alen v. Richardson. L. R. 6 H. L. 232 med. 
 
 (<f) Thomas v. Powell. (h) Kobinsonv. Dickenson, 3Russ.413. 
 
 (e) Skilbeck v. Hilton, L. R .2 Eq. 587, («') Ante. p. 282 (e). 
 where the mistake consisted in ignor-
 
 284 MISTAKEN BELIEF AS AFFECTING VALIDITY, &C. 
 
 Legal estate. 
 
 Mistake pre- 
 vents an 
 implication 
 of intention. 
 
 Mistake does 
 not entitle the 
 party to re- 
 model the 
 Contract. 
 
 a valid marriage and issue were born). And compensation 
 has been granted for a mistake discovered after restitution 
 had become impossible (a). 
 
 But of course the mistake does not re-transfer the Legal 
 estate without re-conveyance (b). 
 
 Again, a mistaken supposition by a Tenant-in-tail who 
 has satisfied a Charge that he is the Owner in fee will 
 prevent the implication of an intention to perpetually 
 extinguish the charge (c). 
 
 Of course a party induced by mistake to contract cannot 
 (without the consent of the other party) substitute for the 
 actual contract such a contract as he would have made but 
 for the mistake. For example, a vendor, selling under the 
 belief that the extent (d) of the subject, or the duration (d) 
 of his interest in it, is greater than it really is, is not 
 entitled to recover back the excess, nor (e) to enforce the 
 contract as it would have stood supposing the excess had 
 been omitted (d). He can at most require that specific 
 enforcement by the purchaser shall be conditional on his 
 allowing a compensation for the excess (/). 
 
 (a) Dacre v Gorges, 2 S. & St. 454. 
 (6) Boughton v. Sandilands, 3 Taunt. 
 376. 
 
 (c) E. Buckinghamshire v. Hohart, 3 
 
 Swan. 186. 
 
 (d) Okill v. Whittaker, 2 Ph. 338. 
 
 (e) Said Okill v. Whittaker. 
 
 (f) See Chapter XXXVIII..
 
 ( 285 ) 
 
 CHAPTER XXXV. 
 
 MISREPRESENTATION AND CONCBALMENT AS AFFECTING THE 
 VALIDITY OF CONTRACTS, &C. 
 
 Misrepresentation entitles the Representee to relief in 
 several different ways, and I will discuss these separately, 
 but I must premise that each would probably be held in all 
 cases (except where I state the contrary) to entitle him to 
 relief of one kind under the same circumstances under 
 which it will entitle him to Relief of another (a). 
 
 When a Representation amounts to a Contract it is 
 binding under the same circumstances as other contracts 
 (b). In other cases it is subject to its own peculiar rules 
 which have been already (c) alluded to and must now be 
 more carefully considered. A Representation is, in effect, 
 a contract that the facts are as represented, and conse- 
 quently the representee is entitled to Damages (d) and 
 Specific Performance (e) (or realization), and (of course) to 
 the beneficial interest (/), in the same cases in which a 
 promisee would be. And this holds whether the represen- 
 tation be expressed (g) or implied (h); and though it be 
 made to the Public generally and not particularly to the 
 
 (a) See accordingly the dicta in 
 Small v. Atlwood, 6 C. & F. 232, and in 
 Fuller v. Wilson, 3 Q. B. 58. 
 
 (6) Manson v. Thacker, L. R. 7 C. D. 
 620. 
 
 (c) See Chap. XI. 
 
 (d) Mackay v. Commercial Bank, L. R. 
 5 P. C. 394; Gerhard v. Bates (2nd 
 Count), 2 E. & B. 476; Foster v. Char- 
 les, 9 Bing. 396, 7 Bing. 105; Fuller v. 
 Wilson, 2 G. & D. 460; Wright v. 
 Crookes, 1 Sc. N. R. 685; Pasley v. 
 Freeman, 3 T.R. 51 ; Mansony. Thacker, 
 L. R 7 C. D. 620 ; Legge v. Croker, (as 
 regards the inquiry q. d.) 1 Ba. & B. 5 1 3 ; 
 Moens v. Heyworth, 10 M. & W. 147. 
 
 Representatec 
 entitled to 
 divers kinds of 
 relief under 
 similar 
 circumstances. 
 
 Representatee 
 is entitled to 
 Damages, 
 Specific reali- 
 zation, and the 
 Beneficial 
 estate, as a 
 promisee 
 would be. 
 
 (e) Neville v. Wilkinson, 1 B. C. C. 
 543; New Brunswick Co. v. Conybeare, 
 9 H. L. 711; re Lush's Trusts, L. R. 4 
 Ch. 591 ; Sharp v. Foy, L. R. 4 Ch. 35; 
 Freeman v. Cookf, 2 Ex. 654 ; qualifying 
 Picard v. Sears, 6 A. & E. 469 ; and 
 dicta in Jorden v. Money, 5 H. L. 213- 
 15; and in Maunsell v. White, 5 H. L. 
 1055; and in Citizens' Bank v. First 
 National, L. R. 6 H. L. 352. 
 
 (f) Cases in preceding Note; and 
 Ante, Chap/X. 
 
 (<?) See the Cases cited in this chap- 
 ter on Representation. 
 
 (h) See the Cases cited in this chap, 
 tcr on Concealment.
 
 286 MISREPRESENTATION AND CONCEALMENT, &C. 
 
 individual deceived by it (a); and though there was no 
 malicious intention (b) ; and though the representor believed 
 the representation to be true (c) (if he had the means of 
 ascertaining the truth (d)); and though it was true literally 
 (e); and though the object of the representation was to 
 induce the representee to enter into a Written contract 
 (which he accordingly did) whereas the representation 
 itself was Oral (/); and though no Benefit to the repre- 
 sentor accrue from the transaction (g); and though the 
 representation was made by an Agent without any conni- 
 vance by the principal, (because the authorization of an 
 agent implies an undertaking that he shall act without 
 fraud (h) ), and this whether the Agent believed the repre- 
 sentation (*) or not (j), at least if the pricipal derived from 
 the transaction a benefit exceeding the damages sought 
 against him (k). But trustees do not seem to fall under 
 the same rule as agents. At least the opposite party, when 
 specifically enforcing the contract against trustees, is not 
 entitled to be compensated out of the trust fund for the 
 misrepresentation (/). However, the Agent (m) and Trustee 
 ( n) alike are liable personally to pay damages ; although an 
 intermediate Agent is not (0). 
 
 The doubts which exist respecting the binding force of a 
 Representation of Intention do not extend to a Represen- 
 
 (a) Gerhard v. Bates. foot v. Fowke, 6 M. & W. 358 ; but Ful- 
 
 (6) Foster v. Charles. ler v. Wilson was reversed on another 
 
 (c) Reese River Mg. Co., L. R. 4 H. point, 3 Q. B. 78. 
 
 L. 67, 79-80, as qualified bv the dicta (j) Mackay v. Commercial Bank, L. 
 
 in Small y. Attwood, 6 C. & F. 232,395, R. 5 P. C. 393; qualified by Western 
 
 444. Bank y. Addie, L. R. 1 Sc. 145, as ex- 
 
 (</) As in Reese River Mg. Co. That plained in L. R. 5 P. C. 413; said Weir 
 
 this is essential appears from Legge v. v. Bell. 
 
 Croker, as regards the issue q. d. (k) As in Fuller v. Wilson; Mackay 
 
 (e) Moens y. Heyworth, 10 M. & W. v. Commercial Bank. 
 
 158-9. (0 White v. Cuddon, 8 C. & F. 766. 
 
 (f) Wright v. Crookes. (m) See Morllock v. Buller, 10 Vez. 
 (g~) Pasley v. Freeman. 304, 312, approved 2 Dow. 513. 
 
 (h) Said Weir y. Bell, L. R. 3 Ex. (;t) Said Cullen v. Thompsons Trustees, 
 
 D. 245. 4 Macq. 424 ; qualified by Weir y. Bell. 
 
 (i) Fuller v. Wilson, over-ruling Corn- (o) Weir y. Bell.
 
 MISREPRESENTATION AND CONCEALMENT, &C. 287 
 
 tation of Fact (a) ; but such a representation is only binding 
 if either it be false to the Knowledge (b) or Belief (c) of the 
 representor (gross Negligence being insufficient (c)), or the 
 representor had the means of ascertaining the truth (d), or 
 the acts done in reliance on it were acts which if it had been 
 true the representee would have been legally bound to do 
 (e) ; and only if acts in reliance on the representation have 
 been done either by the representee (/), or by some person 
 whom the representor meant to act upon it (g), or (in case 
 of a representation addressed to the Public generally) by 
 any person (h) ; and only (in case of a representation made 
 to the Public generally or made to one person but acted on 
 by another) if the Damage sued for be the Immediate 
 Consequence of the representation («*). 
 
 And a misrepresentation of a matter of Law is (/) not 
 binding, except I suppose in those cases in which a mistake 
 in law is sufficient to invalidate a Contract (k). And even 
 fraud does not entitle to relief against Separate estate of a 
 Married Woman which she is Restrained from anticipating 
 
 A Representee from whom property has been obtained 
 for a less sum than it could have been obtained for if he 
 had known the truth has been held to be entitled to the 
 sum for which, if he had known the truth, he would pre- 
 sumably have parted with it, if he prefer this to Specific 
 Restitution (m). 
 
 (a) House of Lords' Cases cited p. 
 285 (f). 
 
 (6) Mci7ison v. Thacker, L. R. 7 C D. 
 620; Collins v. Evans, 5 Q. B. 805 ; Pas- 
 ley v. Freeman, 3 T. R. 51 ; said Taylor 
 v. Ashston, 11 M. & W. 401; Behn v. 
 Kemble, 7 C. B. N. S. 260. 
 
 (c) Taylor v. Asliton. 
 
 (d) As in Reese River Mg. Co. That 
 this is necessary appears from Legge v. 
 Croker, (as regards the inquiry q. d.) 
 
 («) Humphrey v. Pratt, 5 Bli. N. S. 154. 
 (/) Said Attwood v. Small, 6 C. & F. 
 444; Barry v. Croskey, 2 J. & H. 21. 
 (c?) Behn v. Kemble, 7 C. B. N. S. 260 ; 
 
 said Barry v. Croskey, 2 J. & H. 21, 
 qualified hy Polhill v. Walter, 3 B. & 
 A. 114. 
 
 (ft) Gerhard v. Bates, 2 E. & B. 476. 
 
 (i) Collinson v. Cave, 6 H. & N. 131 ; 
 and cases cited ahove in n. (g). 
 
 (j) Beatlie v. Ebury, (Specific En- 
 forcement), L. R. 7 Ch. 777; Eaglesfield 
 v. M. Londonderry, (Specific Enforce- 
 ment and Damages), L. R. 4 C. D. 693. 
 
 (i) See Ante, p. 282. 
 
 (/) Stanley v. Stanley, L. R. 7 C. D. 
 589. 
 
 (m) E. Abingdon v. Butler, 1 Vez. J, 
 206. 
 
 Exceptions. 
 (As to matter 
 of Law). 
 (As to a Mar- 
 ried Woman). 
 
 Representee, 
 induced by 
 misrepresenta- 
 tion to contract, 
 is entitled to 
 the consider- 
 ation for which 
 he would, if 
 aware of truth, 
 have contract- 
 ed.
 
 283 
 
 MISREPRESENTATION AND CONCEALMENT, &C. 
 
 Representee, 
 induced by- 
 misrepresen- 
 tation to 
 contract, is 
 exonerated : — 
 From liability 
 to Damages 
 for breach of 
 the Contract. 
 
 From liability 
 to Perform it. 
 
 A Representee induced by the representation to enter 
 into a Contracft is exonerated from paying Damages for 
 breach thereof (a) ; but only if the representation was Ma- 
 terial (even when knowingly untrue (b) ) ; and not (it seems) 
 if it was made by an Agent who believed it to be true (c), 
 unless authorized by a principal who knew it to be untrue 
 (d) ; and not after the representee has accepted Part Per- 
 formance (e), unless he obtains restitution (/), which how- 
 ever he can now do by counterclaim. 
 
 And he is also exonerated from Specific Performance (g) 
 of any part (h) of the contract, even though the representor 
 was ignorant of the truth (i) ; or, (he being aware of it,) the 
 representation was immaterial (j) ; and though the matter 
 misrepresented was an object of sense (_/); and though the 
 representation was true literally (k) ; and though it was made 
 some time before the Contract: was entered into (/); and 
 though the point misrepresented was one admitting of pecu- 
 niary compensation, as when the Income (m) or Value (») 
 of the subject of sale, or the value assigned to it by compe- 
 tent judges (o), was overstated (i), (at least if the truth was 
 within the Knowledge of the representor and not within 
 
 (i) This does not seem to exonerate him from liability to pay Damages (o); 
 and does not entitle him, (after performance,) to Restitution (p). 
 
 (a) Fuller v. Wilson, 2 G. & D. 460. 
 
 (6) Re Universal Nontariff Co. (Forbes' 
 Claim), L. R. 19 Eq. 485. 
 
 (c) Cornfoot v. Fowke, 6 M. & W. 358, 
 afterwards overruled by Fuller v. Wil- 
 son, 3 Q. B. 58, which, however, was an 
 action to recover Damages for the mis- 
 representation,a,nd was, besides, appealed 
 and reversed on another point, the Ap- 
 peal Court being eilent on this question. 
 In Udell v. Atherton, 7 H. & N. 172, 
 which was also an action to recover 
 Damages for the misrepresentation the 
 Court was equally divided. 
 
 (rf) Conceded Cornfoot v. Fowke. 
 
 (e) Cole v. Bishop, E. B. & E. 151; 
 and cases cited there, pp. 150-1. 
 
 (/) Dimmock v. Hallet, L. R. 2 Ch, 21. 
 
 (g) Clermont v. Tasburgh, U. & W. 1 1 2. 
 
 (h) See dicta in Heese River Mg. Co. 
 L. R. 4 H. L. 79, 80. 
 
 (i) Harris v. Kemble, 5 Bli. N. S. 730. 
 
 (j) Stanton v. Tattersall, 1 S. & G. 
 529. That this does not extend to mere 
 silence implying absence of a defect see 
 Bowles v. Round, 5 Vez. J. 508 (disap- 
 proved 1 Ba. & B. 249-50); White v. 
 Bradshaw, 16 Jur. 738. 
 
 (fc) Dimmock v. Hallett. 
 
 (0 Smith v. Kay, 7 H. L. 750. 
 
 (m) Brereton v. Cowper, 1 B. P. C. 2 1 1. 
 
 O) Watts v. Stubbs, 1 Mad. 80; Hay- 
 garth v. Wearing, L. R. 12 Eq. 320; 
 Cadman v. Homer, 18 Vez. 10. 
 
 (o) Sibbald v. Hill, 2 Dow. 262, 266. 
 
 (/}) See remarks in Cadman v. Hor- 
 ner, 18 Vez. 11. 
 
 (a) Sd. Vigersv. Pike, 8 C. & F. 562.
 
 MISREPRESENTATION AND CONCEALMENT, &C. 289 
 
 that of the Representee (a); and though the Contract 
 provided that misstatements should not annul it but be 
 compensated for (b)- (this being understood is confined to 
 unintentional misstatements); and though the Represen- 
 tation be one of Intention only (c) and be not such as the 
 Court would enforce nor as would exonerate the representee 
 from paying damages for breach of the contract induced by 
 it (c); and though he has Accepted Benefits under the 
 contract after having access to the means of discovering 
 the fraud though without having actually discovered it (d) ; 
 but not if he inquired into the matter for himself (e) ; nor if 
 (in case of a matter depending on opinion) he had the 
 means of enquiring (/); and not if he has, with knowledge 
 of fraud, required the opposite party to proceed with the 
 Contract (g). 
 
 The representee is also entitled to Restitution of what- Representee is 
 ever part of the contract he may have performed (h), and j^i^on 
 to Repayment of whatever money he may have paid under 
 it (i), though the representor was an Infant (j) ; and though 
 (even when the disposition induced was a Family Arrange- 
 ment (k) ) he was ignorant of the truth (I), and known to the 
 representee to be so (?«), (if he had the means of ascertain- 
 ing it («) ) ; and though the misrepresentation was only 
 made by an Agent, and the principal was innocent (o), and 
 
 (a) Walls v. Stubbs, 1 Mad. 80; Hay- Fane, L. R. 20 Eq. 698; Clough v. Lon- 
 
 garlh v. Wearing, L. R. 12 Eq. 320; don <J- N. W. Ry. Co., L. R. 7 Ex. 26. 
 
 Cadman v. Horner, 18 Vez. 10. (i) Swire v. Francis, L. R. 3 Ap. 106. 
 
 (6) Stewart v. Alliston, I Mer. 26. 0) Lemprierev. Lange. 
 
 (c) Lamare v. Dixon, L. R. 6 H. L. (fc) Fnne v. Fane. 
 
 428; Trail v. Baring, 4 Giff. 485; Beau- (I) Hart v. Swaine; Reese River Mg. 
 
 mont v. Dukes, 1 Jac. 422. Co., L. R. 4 H. L. 79-80; Fane v. Fane. 
 
 (d) H arris v.Kemble, 5 Bli. N. S.730. (m) Rawlins v. Wickham, 3 D. G. J. 
 
 (e) Clarke v. Macintosh, 4 Giff. 134. 304. 
 
 (f) Smith v. Watts, 4 Drew. 338 («) Manson v. Thacker, L. R. 7 C. D. 
 
 (g) Macbrydev. Weeks 22 Bea. 533. 620; Legge v. Croker, 1 Ba. & B. 513; 
 (h) Lempriere v. Lange, L. R. 12 C. Attwood v. Small, 6 C. & F. 444, com- 
 
 D. 675; Barry v. Croskey, 1 J. & H. 1 ; pared with Hart v. Swaine, aud with 
 
 Reese River Mg. Co., L. R. 4 H. L. 64; Reese River Mg. Co. 
 Legge v. Croker, 1 Ba. & B. 506; Hart (o) Swire v. Francis; Sew Brunswick 
 
 v. Swaine, L. R. 7 C. D. 42; Scholefield Sfc. Co. v. Conybtare, 9 H. L. 711. 
 v. Templar, 4 D. G. J. 429; Fane v. 
 
 37
 
 290 MISREPRESENTATION AND CONCEALMENT, &C. 
 
 the agent misappropriated the advantages derived under it 
 so that the principal obtained no benefit (a), (if it was 
 within the scope of the agency (&)); and though the matter 
 misrepresented admitted of pecuniary compensation, (as, 
 when the Income of the subject (c), or the amount of 
 Incumbrances charged upon it (d), was misstated); and 
 though the representee has some Collateral object in seek- 
 ing for rescission (e); and though the Contract provided 
 that specified deeds should be accepted as Conclusive 
 Evidence on the point misrepresented, (namely, Acreage 
 (e)); and though, (in a case in which Two persons are 
 liable,) the representee has recovered damages against one 
 of them, the other being dead (c), (in which case, however, 
 any net sum recovered must be allowed in account (e); and 
 though an implied Representation of Intention to perform 
 .the Contract, when no such intention really existed, be the 
 only misrepresentation in question (/) ; and though a Long 
 period has elapsed during which the representee had the 
 means of ascertaining the truth (g), if he did not ascertain 
 it (g). And restitution is granted even after an unsuccessful 
 Action for that purpose, if fresh Evidence has been obtained 
 (h) ; and even against a Third Person who has acquired an 
 interest under the representor (i), unless he acquired it for 
 Valuable Consideration (i), in ignorance of the fraud (i). 
 But Restitution is only granted if the Representation was 
 Material (J); and not if it was obviously merely conjectural 
 (k) ; nor if the representee was aware of the truth (I) ; or 
 
 (a) Swire v. Francis. short period, A beraman Ironworks Co. 
 
 (b) Burnes v. Pennell, 2 H. L. 497. V. YVickens. 
 
 (c) Dicta in Moens v. Heyworlh, 10 (h) Cotter v. E. Barrymore, 3 B. P. 
 M. & W. 156. C. 203. 
 
 (d) Rawling v. Wickham, 3 D. G. J. Q») Schohjield v. Templar, 4 D. G. J. 
 304. 429. 
 
 (e) Aberaman Iron Works Co. v. 0') Jennings v. Broughton, 5 D. G. M. 
 Wickens, L R. 4 Ch. 101. G. 130, qualified by Smith v. Kay, 7 H. 
 
 (f) Clough v. London 8f N. W. %. L. 750. 
 
 Co., L. R. 7 Ex. 26. CO Jennings v. Broughton, 5 D. G. M. 
 
 (q\ Rawlinq v. Wickham; and, as to a G. 136, I. 26 28. 
 KJJ (0 S. C, p. 131.
 
 MISREPRESENTATION AND CONCEALMENT, &C. 
 
 291 
 
 used means by which he might have become so (a) ; nor if 
 the representor believed the representation on reasonable 
 grounds (b), unless he had the means of ascertaining the 
 truth (c) ; (though in these three last cases it does not seem 
 clear that the representee would be exonerated from paying 
 Damages for breach of the Contract induced by the misrepre- 
 sentation (d)); nor after the Representor has become 
 unable to restore what he had acquired under it (e) nor 
 after rights in what he had derived under the Contract 
 have been acquired by Innocent Persons (/) for Valuable 
 Consideration (g), unless the representee claimed resti- 
 tution before they were so acquired (h); nor after the 
 representee has long Acted on the fraudulent contract (?) 
 with Knowledge of the fraud (J) ; or has Attempted, with 
 such Knowledge, to exercise rights which he is only entitled 
 to exercise if the transaction be valid (k). But these 
 circumstances do not preclude the Croivn from obtaining 
 restitution (I) on this, (or, probably, on any allowable,) 
 ground. Of course the exercise of the right to restitution 
 does not revest the Legal Estate without Reconveyance (in). 
 Concealment of a fact is equivalent to a representation 
 that it does not exist, alike for the purpose of entitling the 
 party from whom it is concealed to recover Damages for representation 
 fraud (n), to resist an action for Damages for breach of a 
 contract induced by it (0), or for Specific Performance of 
 
 Concealment is 
 often tanta- 
 mount to mis- 
 
 Co) Attwood v. Small, 6 C. & F. 232. 
 (6) Jennings v. Broughton, 5 D. G. M. 
 G. 132-3. 
 
 (c) Ante, p. 14, n. (a). 
 
 (d) Jennings v. Broughton, 5 D. G. M. 
 G. 132-3. 
 
 (e) Urquhart v. Macpherson, L. R. 3 
 Ap. 838, qualified by the dicta in Alt- 
 ivood\. Small, You. 407, which however 
 was appealed, and was, on another 
 point, reversed. 
 
 (f) Oakes v. Turquand, L. R. 2 H. L. 
 325; Sheffield Nichel Co. v. Unwin, L. R. 
 2 Q. B. D. 223. 
 
 (g) This is essential. Scholefield v. 
 Templar, 4 D. G. J. 429. 
 
 (/i) Reese River Mg. Co. v. Smith, L. 
 R. 4 H. L. 64. 
 
 (0 Selsey v. Rhoades, 1 Bli. N. S. 1 ; 
 Viger.7 v. Pike, 8 C. & F. 652. 
 
 (j) This is essential, Brown v. Me. 
 Clintock, L. R. 6 H. L. 456; Bowen v. 
 Evans, 2 H. L. 237 ; and see Colyer v. 
 Finch, 5 H. L. 905. 
 
 (*) Exp. Briggs, L. R. 1 Eq. 483. 
 
 (/) Said dimming v. Forrester, 2 J. <Sc 
 W. 342. 
 
 (m) Feret v. Hill, 15 C. B. 207. 
 
 («) Clarke v. Hoskins, 37 L. J. Ch. 56 1. 
 
 (o) Gardiner v. Tate, Ir. R. 10 C. L. 
 460.
 
 292 MISREPRESENTATION AND CONCEALMENT, &C. 
 
 such a Contract (a), and to obtain Restitution (b), or to Set 
 aside a disposition induced by it (c). But this only holds if 
 either the concealment be Active (d) ; or be accompanied by 
 a Rental (e), a Plan (/) or a Stipulation (g), implying 
 (intentionally or otherwise) that the fact concealed does 
 not exist, (in which latter case however it does not hold if 
 the party who concealed the truth is able and willing, by an 
 appropriate stipulation, to put the other in the same posi- 
 tion as if the fact had been as he supposed (h) ) ; or the 
 representor be a Fiduciary and the representee his benefi- 
 ciary (/) (or perhaps a Life tenant and the representee a 
 party interested under the settlement (J)) ; or, (on a sale,) 
 a defect in the Title be the matter concealed (k), and the 
 Conditions of Sale imply that it does not exist, and preclude 
 the purchaser from enquiries by which he might discover it 
 (I); or that which is concealed be a Wrong which the 
 party who conceals it had done to the other (m) ; or be an 
 alteration of the circumstances from what he had previously, 
 (perhaps truthfully,) represented (n) ; or, (in the case of a 
 Gratuitous disposition,) the disponee be the party guilty 
 of concealment, and the subject of the concealment be 
 Information which he, (but not the latter), possesses 
 affecting the value of the property (o) ; or if the conceal- 
 
 («) Phillips v. Homfray, L. R. 6 Ch. and the cases cited in the preceding 
 
 770; Harnett v. Bakrr, L. R. 20 Eq. 50; Note. 
 
 Boyd v. Dickson, Ir. R. 10 Eq. 239; (d) Meade v. Webb. 
 
 Edwards v. Wickwar, L. R. 1 Eq. 68 ; (e) Benny v. Hancock. 
 
 Denny v. Hancock, L. R. 6 Ch. 1 ; Har- (f) Harvey v. Cooke, 
 
 vey v. Cooke, 4 Russ. 34; Drysdale v. (</) Torrance v. Bolton; Drysdale v. 
 
 Mace, 5 D. G. M. G. 103; Baskcombe v. Mace; Baskcombe v. Beckwith; Higgin- 
 
 V. Beckwith L. R. 8 Eq. 100; Higginson son v. Clowes. 
 
 v. Ct'owes, 15 Vez. 516; and (in effect) (/t) Baskcombe v. Beckwith. 
 
 re Bannister, [Broad v. Munton), L. R. (i) Tait v. Williamson. 
 
 12 C. D. 131. (J) See the remark in Dicconson v. 
 
 (6) Meade v. Webb, 1 B. P. C. 314; Talbot, L. R. 6 Ch. 38 I. 2-5. 
 Take v. Williamson, L. R. 2 Ch. 55; (k) Re Bannister; Harnett v. Baker; 
 Taylor v. Baring, 4 Giff. 485; Grovesv. Boyd v. Dickson; Gardiner v. Tate; Ed- 
 Perkins, 6 Sim. 576; Torrance v. Bol- wards v. Wickwar. 
 
 ton, L. R. 8 Ch. 1 18; Ewen v. Banner- (I) Bhillips v. Homfray, L. R. 6 Ch. 
 
 man, 2 Dow. & C. 74; in effect Mc. 770. 
 
 Carthy v. Decaix, 2 R. & M. 614. (m) Traill v. Baring. 
 
 (c) Wilkinson v. Joughin, L. R. 2 Eq. (n) Mc. Carthy v. Decaix; Groves v. 
 
 3 1 9, (a case of invalidating a Bequest) ; Perkins.
 
 MISREPRESENTATION AND CONCEALMENT, &C. 293 
 
 ment be accompanied by conduct which would only be 
 proper in case the concealed fact did not exist (a); or if the 
 thing concealed be a right or interest, and that which is 
 obtained by the concealment be a Release so framed as to 
 include that right or interest (b). But mere silence does 
 not, except in these cases, and, perhaps, in a few other 
 exceptional ones, afford any ground for relief, (whether in 
 Damages for the fraud (c), or in the exoneration from 
 Damages for breach of a contract induced by it (d), or from 
 Specific Performance thereof (e), or by restitution (/), or 
 otherwise) ; even when it was observed by a Vendor with 
 reference to the quality of the goods he was selling (/), 
 and with Knowledge of the Purchaser's misapprehension 
 (/), unless (perhaps) the latter's belief on the point was what 
 led him to enter into the contract (g) ; nor even when it was 
 a violation of a Public duty (Ji), at least if the party stated 
 that he did not mean to Warrant anything (k). And even 
 when concealment would otherwise be considered fraudu- 
 lent it seems that it will not be considered so when the 
 person guilty of it is merely an Agent (i), at least if Resti- 
 tution be the relief sought (i). 
 
 (a) Wilkinson v. Joughin; Clarke v. (a") Smith v. Hughes, L. R. 6 Q. B. 
 
 Hoskins; and said in effect as to resti- 597. 
 
 tution in Whitlnker re Shackleton, L. R. (e) Bowles v. Stewart, 1 S. & L. 209 ; 
 
 10 Ch. 446. Wilde v. Gibson, 1 H. L. 605. 
 
 (6) Ewen v. Bannerman. (f) Smithy. Hughes; Keats v. Cadogan. 
 
 (c) Adamson v. Evitt, 2 R. & M. 66; (p) Hinted in Keats v. Cadogan. 
 
 Ward v. Hobbs, L. R. 3 Q. B. D. 150; (A) Ward v. Hobbs. 
 
 Keats v. Cadogan, 10 C. B. 591. (»') Said Wilde v. Gibson, 1 H. L 605.
 
 ( 294 
 
 CHAPTER XXXVI. 
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, IN CONTRACTS. 
 
 Introductory 
 remarks. 
 
 Two problems form the chief subject of the present 
 chapter, — the question whether a stipulation is such that 
 breach of some part of it will exonerate the opposite party, 
 and the question what part is thus "essential." Of these 
 questions the former generally arises in connection with 
 Merchant Shipping and therefore will not be fully discussed 
 here, and, while I will try to give the best statement of it 
 which the cases bearing at all on Conveyancing admit, I 
 must warn the reader that there is scarcely any branch of 
 the law in which the older decisions are, at the present 
 day, so little reliable as in this. The latter question, (which 
 more frequently comes before the Conveyancer,) is not open 
 to this observation. 
 
 The breach of a Contract (a) or binding Representation 
 (b) (i) by one of the parties, exonerates the other from 
 exonerates the liability to perform (c), or pay damages for not performing 
 oppoBi e par y. ^ ^ e stipulations of which it formed a consideration or 
 inducement, and entitles him to restitution (e) of anything 
 given in performance of it ; and this, though he may have 
 some collateral object in taking advantage of the rule (/); 
 and though, (in case of a Representation,) it was innocently 
 made (g) and (as regards restitution) the truth was not dis- 
 covered until the contract had been performed (g) (unless it 
 
 (i) A misleading stipulation in Conditions of Sale seems to be considered, at 
 the Vendor's option, either a warranty or a fraud (A ). 
 
 Rule that 
 breach of a 
 stipulation 
 
 (a) As in the cases below marked C. 
 
 (6) As in the cases below marked R. 
 (those in which the representation was 
 definitive and part of a contract being 
 marked — if express R.c, — if implied 
 R.ic.) 
 
 (c) As in the cases below marked P. 
 
 (d) As in the cases below marked D. 
 
 (e~) As in the cases below marked Res. 
 
 (f) Denny v. Hancock, (R. P.) L. R. 
 6 Ch. 1. 
 
 (g) Hart v. Swaine, (R. Res. D.) L. 
 R. 7 C. D. 42. 
 
 (K) Leyland v. Illingworfh, L. J. 29 
 Ch. 611.
 
 contracts). 
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 295 
 
 was merely implied (a)), and though, (when the breach con- 
 sists in inability to make good a misstatement,) he knew cir- 
 cumstances suggestive of the truth (b). And this doctrine is (In distinct 
 extended even to cases in which the stipulation broken is 
 contained in one Contract and that from which the breach 
 exonerates is in another, if both were made by the same 
 party, on the same occasion, for the sale of different lots in 
 the same or adjoining property (c). But the rule only holds 
 when the intention disclosed by the contract is considered 
 accordant with it (d). It is generally so considered if the 
 stipulation broken was the only consideration for the oppo- 
 site party's engagement which was beneficial to him (e), or 
 was something without such consideration could not be 
 enjoyed (/), or but for which he would probably not have 
 contracted (g), or was that the party guilty of the breach 
 should give security for the performance of his part of the 
 contract (/*), (save that in this case it does not exonerate 
 the opposite party from a similar engagement on his part 
 (/*),) or if the loss accruing from the breach cannot he esti- 
 mated (i), or if the stipulation broken was intended to 
 facilitate the performance of the stipulation from which its 
 breach is held to exonerate (i); or if the engagement from 
 which the breach is held to exonerate be an undertaking 
 not to enforce an existing right (J). And the rule only 
 applies if the breach occurred in an "Essential" (that 
 is an important) point (k), unless that from which the other 
 party is exonerated be an agreement not to enforce an 
 existing right, in which case every part of the consideration 
 
 (i) In this case the distinction between the breach of a stipulation and that 
 of an essential part of a stipulation seems to evanese, and as the cases on this 
 point arose in specific performance suits, I have ranged them where I treat of 
 the essential parts of stipulations further on in this chapter. 
 
 («) Manson v.Thacker, (R.i.c. D. M.) L. 0) Below p. 295. 
 
 R. 7 C. D. 620. (f) Below p. 296. 
 
 (6) Caballero M.Eenly, (R.i.c. P.) L. R. (g) Below p. 297. 
 
 9 Ch. 447. (A) Roberts v. Brett, (C. D ), 1 1 H. 
 
 (c) Cases cited below p. 297 (d) (e). L. 337. 
 
 (d) Christie v. Borelly, (C. D.) 7 C. B. (i) Below p. 297. 
 N. S. 567. And see the note on this (j) Below p. 298. 
 subject in Willes, 157. \k) Below p. 293, sqq.
 
 296 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 
 
 Particular 
 examination of 
 some of the 
 conditions of 
 the rule. 
 Breach of a 
 stipulation 
 forming the 
 sole consider- 
 ation. 
 
 is considered essential (a). And even then it does not 
 apply when the defect is an Incumbrance imposed by Law 
 and the purchaser knew of the facts which give rise to it (b). 
 
 And of course breach of a Contract will not be imputed 
 to a party until the time for its performance has arrived, if 
 he has throughout the interval been Ready and Willing 
 and able to perform it (c). 
 
 Since Breach of a stipulation which formed the only part, 
 beneficial to the other party, of the consideration for his 
 promise, exonerates him (d), — the Breach of a stipulation to 
 make a Conveyance (e) or Release (/) exonerates the pur- 
 chaser (e) or relesee (g) from damages (A) or penalty (i) for 
 withholding or delaying payment of the purchase money: 
 but this only holds if the purchaser prepares the convey- 
 ance in the usual way (J), and has been held not to apply 
 if the agreement was by deed (k) (i) (in which case a total 
 
 (i) The statement in the text is the most accurate of which the cases admit, 
 hut the principles on which they were decided are inconsistent with each other 
 so that the question must still be considered open (m). In one case (n) the 
 Court relied on the distinct frame of the agreement to sell, but in another (o) 
 this was disregarded. 
 
 (a) Atlwood v. Taylor, (C. D.), 1 M. & 
 G. 279. And see other cases cited 
 below p. 298, n. (a). 
 
 (6) Barraud v. Archer, 2 Sim. 433. 
 
 (c) Kemble v. Mills, (C D.), 1 M. & 
 Gr. 757; Ferry v. Williams, (C D.), 8 
 Tau. 62; Dicker v. Jackson, (C D.), 6 
 C. B. 103; Pordage v. Coles, (C. D.), I 
 Sand. 319; Mattock v. Kinglake, (C D.) 
 10 A. & E. 50; Blackwell v. Nash, (C 
 D.), 8 Mod. 105; Bankart v. Bowers, (C 
 D.), L. R. 1 C. P. 484. That Readiness 
 and Willingness are essential, see the 
 cases in the next note and Bankart v. 
 Bowers. 
 
 (d) Said Boone v. Eyre, 1 H. Bl. 273n. 
 This also appears from the rule giving 
 the vendor a lien on the subject of sale, 
 as stated in Chap. XXXIX. 
 
 (e) Marsden v. Moore, (C. D.), 4 H. 
 & N 500; Glazebrook v. Woodroto, (C. 
 D.), 8 T. R. 366 ; Heard v. Wadham, (C 
 D.), 1 Ea. 619; Manby v. Cremonini, 
 (CD.), 6 Ex. 808; Goodison v. Nwm, 
 (C D.), 4 T. R. 761; Lock v. Wright, 
 
 (C. D.), 8 Mod. 40. Generally, Willes 
 157n. 
 
 (7) Collins v. Gibbs, (C. D.), 2 Burr. 
 900. 
 
 (<;) Marsden v. Moore; Glazebrook v. 
 Woodrow; Heard v. Wadham; Manby v. 
 Cremonini. 
 
 \Ji) Goodison v. Simn. 
 
 (i) Poole v. Hill, (in which the agree- 
 ment was by deed but this was not a 
 ground of decision), (C. D.), 6 M. & 
 W. 835. 
 
 O) Catonv. Dixon, (C. D.), 1 Ro. Ab. 
 415 pi. 8; Pordage v. Cole, (C. D.), 1 
 Sand. 319, especially p. 320; Mattock 
 v. Kinglake. (CD.), 10 A. & E. 50; 
 Sibthorpe v. Brunei, (C D.), 3 Ex. 826. 
 
 (A) In Bagallay v. Petitt, (C D.), 5 
 C B. N. S. 637, (in which the agree- 
 ment was not by deed,) the Court con- 
 sidered the question open, and thought 
 the pleadings did not raise it. The 
 marginal note is incorrect. 
 
 (/) Sibthorp v. Brunei. 
 
 (m) Mattock v. Kinglake.
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 297 
 
 failure of consideration docs not seem in general to exon- 
 erate a party (a)), though the purchaser's covenant be 
 expressly "in consideration of" the Vendor's (b), and the 
 Vendor be not competent to perform the latter (c): However 
 some of these cases seem rather to depend on the princi- 
 ple that a time was fixed for payment and no time or a 
 later one for conveyance (d) (so that Readiness and Wil- 
 lingness were equivalent to performance), or that the 
 Conveyance was to be made "upon" payment (e). But no 
 doubt a purchaser may now in such cases make a counter- 
 claim (/). And an agreement to give a Release of Claims 
 in consideration of a sum assessed as the value of those 
 claims is construed as meaning that the release need not 
 be given until the payment has been made (g). 
 
 Since breach of a stipulation without fulfilment of which 
 the main consideration moving from the promissor could 
 not be enjoyed exonerates the promisee, the breach of a 
 Lessor's covenant for Quiet enjoyment (A) (unlike the 
 breach of his other covenants (i)) exonerates the Lessee 
 from his covenant to pay rent; and the stipulation, (always 
 implied on a sale of land for building,) that it is free from 
 rights of way, water, or the like, exonerates the purchaser 
 from his contract as to both that (j), and an adjoining 
 lot (k). 
 
 Since the breach of a stipulation but for which the 
 opposite party would probably not have contracted exon- 
 erates him, the breach of an undertaking to purchase from 
 
 Breach of a 
 stipulation 
 without which 
 the consider- 
 ation moving 
 from the 
 promissor could 
 not be enjoyed. 
 
 (a) See in Rose v. Poulton, (C. D.), 
 2 B. & Ad. 822 ; and contra in Pordage 
 v. Cole, 1 Sand, 319-20. 
 
 (6) Pordage v. Coles; Mattock v. King- 
 lake ; Sibthorpe v. Brunei. 
 
 (c) Sibthorpe v. Brunei. 
 
 (d) Dicker v. Jackson, (C. D.), 6 C. 
 B. 103; Pordage v. Cole; Mattock v. 
 Kinglake; Sibthorpe v. Brunei; ante, p, 
 236, (c). 
 
 (e) Sibthorpe v. Brunei. 
 
 (f) 36 & 37 Vic, c. 66, s. 24 (3); G. 
 0. XIX, Rule 3. 
 
 (g) Smith v. Woodhouse, (C. D.), 2 N. 
 R. 233. 
 
 (Ji) Dalslon v. Reeve, 1 Ld. Ray. 77. 
 
 (i) See Newton v. Allen, 1 G. & D. 
 44, where, however, the eviction was 
 only partial. 
 
 (j) Sheckleton v. Sutcliffe, (R.c P. M.), 
 1 D. G. S. 609. 
 
 (Jfc) Uykes v. Blake, (R.c. Res.) 4Bing., 
 N. C. 463. 
 
 Breach of a 
 Stipulation but 
 for which the 
 opposite party 
 would not 
 have con- 
 tracted. 
 
 38
 
 298 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 
 
 him whatever coals the promissor may require, exonerates 
 him from engagement, in consideration thereof, to purchase 
 from that promissor certain coal mines (a) ; and the breach 
 of an undertaking to employ him as manager of a specified 
 wharf, exonerates him from an engagement to let that 
 wharf to the promissor (b) ; and the inability of a vendor, 
 (who has contracted to sell two lots to the same purchaser,) 
 to convey one which is essential to the enjoyment of the 
 other, exonerates the purchaser from his purchase as to 
 both (c); and his inability to convey a strip of land sold 
 with a house and lying between the house and the high- 
 way (d), or to convey an unqualified fee-simple to one who 
 has purchased for a purpose only capable of being carried 
 out by such an estate (e), exonerates the purchaser. How- 
 ever breach of an agreement to sell an estate does not 
 exonerate the vendor from an engagement to purchase 
 from the purchaser another estate (/), though both estates 
 be situate in the same manor (/), and both agreements be 
 on the same writing (/), (whence it was argued that the 
 transaction was an exchange (/), ) unless the former is 
 necessary to the enjoyment of the latter (g). 
 Breach of a Since breach of a stipulation the performance of which 
 
 performance of was tended to facilitate the performance of a stipulation 
 
 which was n the part of the opposite party exonerates him, the 
 
 intended to . . 
 
 facilitate that breach ot a stipulation by an underlessee to contribute to 
 
 ot the oppo- ^g £ nes anc j expenses of the renewal of the superior lease 
 site party. r r 
 
 seems to exonerate the middleman from a covenant to 
 
 renew the underlease (h). 
 
 Breach of a The rule that breach of any stipulation exonerates the 
 
 Stipulation 
 
 which forms 
 
 the consider- («) Bankart v. Bowers, (C. D.), L. R. (e) Wright v. Howard, (C. P.), 1 S. & 
 
 ation for the I C. P. 484. St. 190. 
 
 relinquishment <J>) Ogden v. Fossick, (C. P.), L. J. 32 (f) Croome v. Lediard, (C P.), 2 M- 
 
 of a Right. Ch. 73. & K. 251. 
 
 (c) Chambers v. Griffiths, (C. Res.), 1 (g) Ante, n. (c). 
 
 Esp. 150; Gibson v. Spurrier, (C. Res.), (A) See Chesterman v. Mann, (C. P.) 
 
 Peake's Add. Ca. 49, confirmed in 9 Hare 206, in which it was expressly 
 
 part by Dykes v. Blake. [193. conditional. 
 
 (d) Perkins v. JSrfe. (C. P.), 16 Bea.
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 299 
 
 opposite party from an engagement to forego an existing 
 right (a) only extends to stipulations by the party liable, 
 not stipulations made by another for his sake (b). 
 
 Since breach of a stipulation only exonerates the opposite 
 party if it occur in an essential point we must now consider 
 the meaning of that term and what parts of a stipulation 
 are deemed "essential." It is not accurate to say that an 
 "essential*' term is one which the law considers as not 
 having been really intended; it is merely one which it 
 regards as a proper subject of compensation. Consequently 
 the general rule is that a term but for which the opposite 
 party would probably not have contracted is essential. 
 
 The Time appointed for performance is essential if the 
 purpose of the opposite party would be frustrated by delay, 
 as, the time for giving possession of a house bought &c. 
 for immediate Residence (c) ; or that for advancing money 
 to disincumber an estate (d). 
 
 A Time fixed to ensure expedition is essential, as, the 
 time for sending in Requisitions on Title (i) (e) if it be 
 added that requisitions not sent in within the time will be 
 deemed waived (e), or the time for taking advantage of an 
 offer by one to pay the debts of his relative (/). 
 
 The Time for performing a stipulation meant to enable 
 the Promissee to perform his part is essential, as, that for 
 performing a covenant by an underlessee to contribute 
 within a reasonable period after demand to the expenses of 
 Renewing the headlease; consequently delay exonerates the 
 Sublessor from a covenant to renew the Underlease (g). 
 
 (i) As to what •will be deemed a waiver of such a stipulation see the case in 
 the note (e). This time only runs as to each requisition from the delivery of 
 an Abstract capable of suggesting it (A). 
 
 O) Atlwond v. Taylor. (C. D.), 1 M. sby, 2 S. & L. 603-4. 
 
 Essential 
 
 terms 
 distinguished. 
 
 Essentiality of 
 time. 
 
 Time is essen- 
 tial when 
 delay would 
 frustrate the 
 purpose. 
 
 Time essential 
 if fixed to 
 ensure expe- 
 dition. 
 
 Time essential 
 of stipulation 
 made to facili- 
 tate opposite 
 party's 
 performance. 
 
 & Gr. 279; see Thompson v. Hudson, (C. 
 D. P.), L. R. 4 H. L. 15; and Sterne v. 
 Beck, (C. D.), 1 D. G. J. S. 595, in 
 which it was expressly conditional. 
 
 (b) Hose v. Rose, (C. P.), Amb. 331. 
 
 (c) Tilley v. Thomas, (in which also 
 the house was leasehold), L. R. 3 Ch. 6 1 . 
 
 ((/) The cases cited in Crofton v. Orm- 
 
 («) Oakdenv.Fike, 12 L. T. N. S. 527. 
 
 (/) Williams v. Mostyn, 9 L. T. N. S. 
 476. 
 
 (g) See Chesterman v. Mann, 9 Hare 
 206, in which the lessor's covenant was 
 expressly conditional on the Lessee's. 
 
 (h) Warde v. Dixon, L. J. 28 Ch. 315.
 
 300 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 
 
 Time essential 
 if delay unfair. 
 
 Leaseholds. 
 
 Reversions. 
 
 Time essential 
 if the ad van • 
 tage depends 
 on the time of 
 performance. 
 
 Time essential 
 if the persons 
 to he benefitted 
 depend thereon. 
 
 Time essential 
 •when party 
 cannot com- 
 plete. 
 
 Exception : 
 Vendor may 
 shew title after 
 commencement 
 of action. 
 
 The time for performance of a stipulation delay in which 
 would injure the Promissee more than the promissor is 
 essential, as, the time for sale of a Terminable interest (a), 
 (the income of which would not last so long, nor, therefore, 
 be presumably as valuable, as the interest on the purchase 
 money); or for sale of a Reversionary interest (b), (the 
 income from which would not begin so soon and there- 
 fore, presumably, not be so valuable). 
 
 The Time for performance of a stipulation the advantage 
 derivable from which depends on the time of performance 
 is essential, as, the time for making a Valuation (c); or com- 
 pleting the purchase of a subject of Fluctuating value (d), 
 or the sale of a subject which is to be paid for out of a 
 Fluctuating fund (e) ; or the sale (/) or purchase (g) of a 
 Business as a going concern ; or of a Mining enterprise (h). 
 
 The Time for performance of a stipulation the persons 
 benefitted by which depend on the time of performance is 
 essential, as, an agreement to take a Lease at a fine from a 
 body so constituted that those who happen to be members 
 at the time of performance are legally entitled to the con- 
 sideration (/). 
 
 The Time for performing a stipulation which the party is 
 unable to perform seems to be essential. At least a pur- 
 chaser who gives untenable reasons for delay when his 
 true reason is inability to procure the purchase money is 
 thereby precluded from specifically enforcing the Contract 
 (_/). But a Vendor of property held by documentary evi- 
 dence (as land), who obtains a Title before the certificate 
 
 (a) Ormondv. Anderson, 2 Ba. & B. 
 370; Hudsony. Temple, 29 Bea. 543; as 
 to the effect when a time is not agreed 
 on, and the plaintiff does not seem to 
 have been guilty of delay, Dyer v. Har- 
 greave, 10 Vez. 510. 
 
 (b) Cases cited in L. R. 2 C. P. D. 
 345; sd. ib. 348. 
 
 (c) Morse v. Merest, 6 Mad. 26. 
 
 (d) Doloret v. Rothschild, 1 S. & St. 
 590. 
 
 (e) Lewis v. Lechmere, 10 Mod. 502. 
 
 (f) Cowles v. Gale, L. R. 7 Ch. 12. 
 
 (g) Coslake v. Till, 1 Russ. 376. 
 
 (A) Macbryde v. Weekes, (in which 
 the agreement was to grant a lease) 22 
 Bea. 533. 
 
 (i) Carter v. D. Ely, 7 Sim. 211. 
 
 0) Gee v. Pearse, 2 D. G. S. 325.
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 301 
 
 of the result of the enquiry as to title (a) is given, (pending 
 which a reasonable time for curing defects will be allowed 
 (b), especially if the defers arc confined to a small portion 
 of the property (c), and even sometimes though an Act of 
 Parliament be necessary (d) ) ; much more a Vendor who 
 obtains one before the enquiry is directed (e), or before the 
 hearing (/); is as fully entitled to enforce the contract (save 
 as to costs (g)) as if he had obtained it before the Contract;: 
 but this doctrine is not to be extended (h), and does not 
 apply when the defect arose from error in a decree under 
 which the purchaser bought (h), nor when the appointed 
 time was essential (?), nor when the Vendor delays unrea- 
 sonably (j), nor (probably) if the property is in possession 
 of an adverse claimant (k); nor is a Vendor entitled to 
 damages unless he can shew a title by the time fixed for 
 completion (/), or, (if no time was fixed,) the time when the 
 purchaser demands completion (in), unless the defect be the 
 absence of a license to assign («). 
 
 The time fixed by a Notice from one party to the other Time hastened 
 
 dv Notice 
 calling on him to complete on pain of rescission is essential 
 
 (o), if the period be adequate (/>), or the dilatory party 
 
 refuse to proceed (q). 
 
 Finally: Time is essential when the parties agree (r) even Time essential 
 
 if so agreed. 
 
 (a) Sd. Jenkins v. Hiles, 6 Vez. 655; in effect in the cases which establish 
 
 and as to evidence of Title Vancouver v. that time is sometimes essential. 
 Bliss, 11 Vez. 458; said Clay v. Ruf- (j) Wynn v. Morgan, 7 Vez. 205-6; 
 
 ford 5 D. G. S. 784, qualified by Forrer C»ffin v. Cooper. 
 
 V. Nash, 35 Bea. 167. In Benet College {k) See Lachlanv. Reynolds, Kay. 52. 
 v. Carey, 3 B. C. C. 390n, and Graham (I) Wilde v. Fort, 4 Tau. 334; Berry 
 
 V.Oliver, 3 Bea. 124, the purchaser was v. Young, 2 Esp. 640n. 
 plaintiff. (m) Thompson v. Miles, 1 Esp. 184. 
 
 (6) Paton v. Rogers, 6 Madd. 256. (n) Slowell v. Robinson, 3 Bing N. C. 
 
 Moulton v. Edwards, 6 Jur. N. S. 305; 928. 
 
 Stourlon v. Meeres, stated 2 P. W. 630- (o) Noll v. Riccard, 22 Bea. 307; Sd. 
 1; Coffin v. Cooper, 14 Vez. 205. Webb v. Hughes, L. R. 10 Eq. 286; 
 
 (c) Chamberlain v. Lee, 10 Sim. 444. Pegg v. Wisden, 16 Bea. 239. 
 
 (d) Stourtonv. Meeres, stated as above, (p) Webb v. Maxwell, 32 Bea. 408; 
 and explained in 5 D. G. S. 784. Me. Murray v. Spicer, L. R. 5 Eq. 527; 
 
 (e) Sd. Langfordv. Pitt, 2 P. W. 630. Crawfordv. Toogood, L. R. 13 C. D. 153. 
 
 (f) Wynn v. Morgan, 7 Vez. 202. (9) Nott v. Riccard. 
 
 (g) Wilkinson v. Hartley, 15 Bea. 183, (r) Thompson v. Hudson, L. R. 4 II. 
 and the cases cited in 2 P. W. 630 (a). L. 31 ; said Honeyman v. Marryat, 21 
 
 (K)Lechmerev.Brasier, 2J.&W.289. Bea. 14. 
 (») Sd. Wynn y. Morgan, and decided
 
 302 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 
 
 Time essential 
 if substituted. 
 
 Time when 
 not essential. 
 
 When time for 
 sending in 
 Requisitions 
 begins to run. 
 
 orally (a), that it shall be so(b), for " modus et conventio vincunt 
 legem." And a stipulation that forfeiture of the rights under 
 a contract, or of money paid under it, shall follow delay, is 
 considered equivalent to such an agreement (c). 
 
 The essentiality of the time for performing a stipulation 
 on which another is expressly conditional depends on the 
 doctrine stated in Chap. XXXVII as to Relief against 
 forfeiture. 
 
 And a time substituted for that originally agreed upon 
 is as essential as that originally agreed upon (d), even 
 under extreme circumstances (d). 
 
 In cases other than those above stated the time for 
 performing a contract is not essential (e). And even in the 
 cases above stated, time is not (except perhaps by agreement) 
 essential as to the clearing of a point in the Title which 
 the purchaser, when contracting, knew could not be cleared 
 within the stipulated time (/), nor if the Contract prescribed 
 what should be done in case of delay (g) ; nor does a stipu- 
 lation that time shall be essential extend to delay by the 
 Vendor in Stamping and Registering a deed, and conse- 
 quently a purchaser who abandons the contract on the 
 ground of such delay is guilty of breach of contract (g). 
 
 And a time prescribed for the delivery of Requisitions 
 does not begin to run until an abstract sufficient to suggest 
 them is sent (h) ; and the omission to send one within the 
 prescribed time exonerates the purchaser from a stipu- 
 
 (a) Nokes v. Kilmorley, 1 D. G. S. 458. 
 
 (6) Barclay v. Messenger, 43 L. J. Ch. 
 449; Hudson v. Temple, 29 Bea. 536, 
 (the ordinary condition); qualified as 
 the time for sending in requisitions by 
 the cases cited below this page, n. (h), 
 and in next page, n. («). 
 
 (c) Nukes v. L. Kilmorley, 1 D. G. S. 
 444; Barclay v. Messenger, L. J. 43 
 Ch. 449, overruling a dictum in Parkin 
 v. Thorold, 16 Bea. 76. 
 
 (d) Hipwell v. Knight, 1 Y. & C. 401. 
 
 (e) Patrick v. Milner, L. R. 2 C. P. D. 
 342; Webb v. Hughes, L. R. 10 Eq. 281. 
 
 (X) Roberts v. Berry, 3 D. G. M. G. 
 
 284; Parkin v. Thorold, 16 Bea. 59, 65 
 (overruling Parkin v. Thorold, 2 Sim. N. 
 S. 1); extended to an action for 
 damages by 36 & 37 Vic, c. 66, s. 25, 
 (7), as qualified by 38 & 39 Vic , c. 77, 
 s. 2, before which every point was 
 treated in an action for damages as 
 essential, Noble v. Edwards, L. R. 5 C. 
 D. 378. 
 
 (17) Hudson v. Temple, (in which the 
 Vendor (and not as the marginal note 
 has it — the purchaser,) annulled the 
 Contract), 29 Bea. 536. 
 
 (h) Warde v. Dixon, 28 L. J. Ch. 3 1 5.
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 803 
 
 lation as to the time of sending in requisitions, and does 
 not merely enlarge that time, though it was, and the time 
 for sending the Abstract was not, to be essential (a). 
 
 But a party is not entitled to enforce a contract after long 
 Delay and conduct founded on the assumption that the 
 contract is nonexistent (b), though time was not essential 
 (b), and though the dilatory party (being purchaser) has 
 retained a possession which he had taken as tenant (i); nor 
 after long Neglect to compel the opposite party to observe 
 the contract (c) (while he treats it as nonexistent (d)), 
 though accompanied by requests to him to proceed (e), at 
 least if the time be from the nature of the contract essential 
 (/), unless the defendant (being purchaser) was in posses- 
 sion (g) (even as tenant (g)); but (of course) delay is imma- 
 terial when the parties have throughout acted on the 
 contract (A). 
 
 On the other hand the essentiality of time cannot be 
 relied on after a Request to the dilatory party to proceed 
 (*'), or continued performance on one's own part (J), or 
 negotiation with a view to it (k), occurring after the time 
 has passed (/). 
 
 Points other than time are essential or otherwise on the 
 same principles. And a Misdescription is not the less 
 essential by reason of a stipulation that Misdescriptions 
 shall not annul the contract but be compensated for (m), 
 (for such a stipulation is understood to refer to unessential 
 misdescriptions only (vi)); nor because the representee 
 
 (a) Upperton v. Nickolson, L. R. 6 Ch. 
 443. 
 
 (6) Mills v. Haywood, L. R. 6 C. D. 
 196. 
 
 (c) Southcomb v. B. Exeter, 6 Hare 2 1 3. 
 
 (d) Pollard y. Clayton, 1 K. & J. 462; 
 C. London v. Milford (covenant for per- 
 petual renewal), 14 Vez. 42. 
 
 (e) Lehman v. Mc. Arthur, L. R. 3 Ch. 
 496. 
 
 (f) As in Pollard v. Clayton; Lehman 
 v. Mc. Arthur; probably C. London v. 
 M it ford. [659. 
 
 (g) Shepheard v. Walker, L. R. 20 Eq. 
 
 Long Delay 
 precludes from 
 enforcing 
 contract. 
 
 Preclusion 
 from insisting 
 on Essentiality 
 of Time. 
 
 Essentiality of 
 other terms in 
 general. 
 
 (ft) Sharp v. Milligan, 22 Bea. 606. 
 
 (i) Pegg v. Wisden, 16 Bea. 329. 
 
 0") Exp. Gardner, 4 Y. & C. 503. 
 
 (ifc) Webbv. Hughes, L.R. 10 Eq.286. 
 
 (/) Pegg v. Wisden; exp. Gardner; 
 Webb v. Hughes. 
 
 (»«) Aberaman I. Co. v. Wickens, L. R. 
 6 Ch. 106; Sherwood v. Robins, 3 C. & 
 P. 339 ; Whitle more v. Whittemore, L. R. 
 8 Eq. 603; Dobell v. Hutchinson, 3 A. & 
 E. 356; Portman v. Mill, 2 Russ. 570; 
 Ayles v. Cat, 16 Bea. 23; Sherwood v. 
 Robins, 3 C. P. 339 ; all qualified by 
 Sicoll v. Chambers, 1 1 C. B. 996.
 
 304 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 
 
 Breach which 
 frustrates the 
 purpose. 
 
 Breach in a 
 
 had the means of ascertaining the truth (a) ; but is void if he 
 knew the truth (b) ; or if the point misrepresented be Matter 
 of Opinion (c), (as that Watermeadow is "rich" (d)). To 
 come to details: — 
 
 A breach such as frustrates (e) the opposite party's 
 Purpose exonerates him, (as, inability to convey that part 
 of the subjecft of sale which constituted the purchaser's 
 Chief Inducement (/)), or, (on sale of Water-rates,) to con- 
 vey a perpetual right to use the water-pipes (g). 
 
 Breach in a point necessary to the Full Enjoyment (h) 
 irfun n eDJo S y- ry of the main suD J ec ^ contracted for exonerates the opposite 
 ment. party, whether in case of a Sale (i), Exchange (/), Parti- 
 
 tion (k), or otherwise; and whether the point be the 
 Existence of something thus necessary, (as, Ornamental 
 Trees described as existing on a residential property the 
 subject of sale (I), or a power to Distrain for a "Rent" the 
 subject of sale (m) (i), or frontage to the Street (described as 
 belonging to a house the subject of sale (n)), or Ability to 
 convey something thus necessary, (as, (in some cases) a part 
 of the property (o), or (on sale of a residence) a belt of 
 shrubs with Ornamental Trees (n) described as part of it 
 (p), or the Entirety of the property contracted for (the 
 
 (i) The word "rent," as used in a contract, implies this (m). 
 (n) Ordinary trees were also (q) essential in an action for damages before 
 the Judicature Act; but this, I apprehend, would not now be so. 
 
 (a) Aberaman I. W. Co. v. Wickens, 
 L. R. 4 Ch. 101. 
 
 (6) Farebrother v. Gibson, 1 D. G. J. 
 602. 
 
 (c) Scott v. Hanson, 1 R. & M. 128; 
 said Leyland v. Illingworth, L. J. 29 Ch. 
 615 a-b; and, as to the meaning of the 
 words "Substantial and Convenient," 
 see Johnson v. Smart, 2 Giff. 151. 
 
 (d) Scott v. Hanson. 
 
 (e) As to breach of an entire stipu- 
 lation of this character see ante, p. 
 
 (f) Said Staptjlton v. Scott, 13 Vez. 
 426. [339. 
 
 (g) Price v. Macaulay, 2 D. G. M. G. 
 (A) See p. 297, n. (A). 
 
 («) Cases cited below. 
 
 0') Bowyer v. Bright, 13 Pri. 698. 
 
 (k) Poole v. Shergold, 1 Cox. 273. 
 
 (/) Impliedly said Magennis v. Fallon, 
 2 Moll. 590. 
 
 (m) Robins v. Evans, 2 H. & C. 410. 
 
 (n) Stanton v. Tattersall, 1 Sm. & G. 
 529 ; qualified by W lute v. Bradshaw, 1 6 
 Jur. 738, which latter would probably 
 not now be followed. 
 
 (o) Sd- Knatchbull v. Grueber, 3 Mer. 
 145; sd. Poole v. Shergold, I Cox. 273, 
 Macqueen v. Farquhar, 11 Vez. 467; 
 Dubell v. Hutchinson, 3 A. & E. 356; 
 extended in Bowyer v. Bright, 13 Pri. 
 693. 
 
 (p) Denny v. Hancock, L. R. 6 Ch. 1. 
 
 (q) D. St. Albans v. Shore, 1 H. Bl. 
 270.
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 305 
 
 vendor having only a Share (a)), or Ability to free pro- 
 perty from something ivhich prevents this full enjoyment, as, Incum- 
 brances freedom from which formed a chief inducement (b), 
 or which are of large amount (b) (unless the vendor gives 
 an adequate Indemnity against them (c)), or considerable 
 partial interests, (as Leases for years at low rents (d),) or 
 an Easement entitling some one to project something over 
 the property (e), or a Condition of Reentry capable of being 
 broken by some one else than the intending purchaser (/), 
 (in which case the latter will not be required to accept an 
 Indemnity (/),) or great deficiency in the size of the property, 
 (as when it is ^ (g) or, ^ (h) of that stated,) (though it be 
 stipulated that the Quantities stated shall be accepted as 
 correct more or less (g) (i)). 
 
 A breach such that there is no means of guaging the sum Breach the 
 
 c -, i • i damages from 
 
 proper to compensate tor it exonerates him, as, when w b.ich cannot 
 
 Copyhold is sold as freehold (*"), or conversely (_/'), or when he estimated, 
 an Estate for Years is sold as a Fee-simple (k) (which 
 differs in legal incidents), or when a conditional estate is 
 sold as absolute {I), or when property is sold as lying within 
 a Ring-fence but does not (m), or when Trees are sold as 
 being of a specified average size (n) unless their number be 
 stated («), (especially if the foliage prevents the ascertain- 
 ment of the number (n)). But the damage suffered by a 
 misstatement of the Age of a life-tenant &c. is held to be 
 capable of estimation (o). 
 
 (i) As to the effect of the words "more or less" in disentitling a purchaser 
 to compensation, see Dart. V. P., Ch. XIII, s. 4. 
 
 (a) Sd. Dalby v. Pullen, 3 Sim. 29, in 
 which, however, the ground of decision 
 was wilful Concealment. 
 
 (b) Smith v Tolcher, 4 Russ. 302. 
 
 (c) Halseyv. Grant, 13 Vez.73; Hor- 
 niblow v. Shirley, 13 Vez. 81. 
 
 (d) Collier v. Jenkins, 1 You. 295. 
 
 (e) Pope v. Garland, 4 Y. & C. 394. 
 (/) Fildes v. Hooker, 3 Madd. 193. 
 (g) Bowyer v. Bright, 13 Pri. 698; 
 
 sd. Portman v. Mill, 2 Russ 570 . 
 
 (K) Aberaman I. Co. v. Wickens, L. R. 
 4Ch. 101. 
 
 
 (i) Hart v. Sioaine, L. R. 7 C. D. 42; 
 Hick v. Phillips, Pre. Ch. 575; slightly 
 qualified by Price v. Macaulay, 2 D. G. 
 M. G. 344. 
 
 \J) Ayles v. Cox. 16 Bea. 23. 
 
 (fc) Wood v. Griffith, 1 Swan. 54. 
 
 (0 Sherwood v. Robins, 3 C. & P. 339. 
 
 (hi) Sd. Dyer v. Hargreave, 10 Vcz. 
 505; Drewe v.Hanson, 6 Vez. 675; and 
 see 3 Mer. 145. 
 
 (n) L. Brooke v. Eounthwaite, 5 Hare 
 298. [339. 
 
 (o) Sd. Sherwood v. Robins, 3 C. & P. 
 
 39
 
 306 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 
 
 Breach on 
 points not 
 essential. 
 
 Breach of 
 
 Independent 
 
 stipulations. 
 
 Points not falling under any of the above conditions are 
 not in general essential. Thus, ability to convey the whole 
 of the property stipulated for is only (a) so if the part 
 which cannot be conveyed is great (b), or is necessary to 
 the enjoyment of the rest (c) ; and a slight deficiency in size 
 is not an essential breach (d), (as -^ (e), especially if Misde- 
 scriptions were not to annul the sale but to be compensated 
 for (e); nor is a slight deficiency in duration (/), (unless it 
 makes a difference in legal incidents (g)); nor is a short 
 residue of a Lease (h) to which the property turns out to be 
 subject, (though the property be a farm (h), unless imme- 
 diate possession be necessary (h)); nor are trifling Ease- 
 ments^'); nor small Incumbrances (J)(i); nor Incumbrances 
 against which the vendor gives an adequate Indemnity (k); 
 nor slight defects in repair (I) or cultivation (/) when a 
 house or land is the subject of sale ; nor slight deviations 
 from a Building Plan (in). And an Implied misstatement, 
 (as, that a house held by underlease is held by lease,) 
 has been held insufficient to entitle the purchaser to rescis- 
 sion, and it was intimated that it would probably be insuffi- 
 cient to disentitle the vendor to damages against the 
 purchaser for refusing to complete («). 
 
 Since breach of a stipulation does not, in other cases, 
 exonerate the opposite (p) party, the breach of an under- 
 
 (i) An Incumbrance on an Ecclesiastical Benefice is not considered as an 
 incumbrance on the Advowson at all, nor, therefore, as entitling the purchaser 
 of the latter even to compensation (p). 
 
 (a) Calcraftv. Roebuck, 1 Vez. J. 221 ; 
 Poole v. Shergold (Properties in different 
 lots), I Cox. 273; Mc. Queen v. Farqu- 
 har, 11 Vez. 467. 
 
 (6) Ante, p. 305 (g) (ft). 
 
 (c) Ante, p. 304 (o). 
 
 (d) This follows from the cases just 
 cited. 
 
 (e) Leslie v. Tompson, 9 Hare. 263. 
 (/) Drewe v. Corp, 9 Vez. 368, ap- 
 proved 13 Vez. 78. 
 
 (5) Ante, p. 304 (0). 
 
 (A) Sd. Halsey v. Grant, 13 Vez 77. 
 
 (t) Wilde v. Gibson, Sugd. H. L. 614. 
 
 0) Sd. Guest v. Homfray, 5 Vez. 818; 
 Howland v. Norris, 1 Cox. 59; Esdaile 
 v, Stephenson, 1 S. & St. 122; Binks v. 
 L. Rokeby, 2 Swan. 222. 
 
 (Jfc) Ante, p. 305 (c). 
 
 (/) Dyer v. Hargreave, 10 Vez. 505. 
 
 (m) Craven v. Fickett, 1 Vez. J. 60. 
 
 (n) Bartlett v. Salmon, 6 D. G. M. G. 
 33. [757. 
 
 (0) Gibson v.Goldsmid, 5 D. G.M. G. 
 
 (p) Edwards- Wood v. Marjoribanks, 30 
 L. J. Ch. 176.
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 307 
 
 taking to indemnify against partnership liabilities does not, 
 (even as regards specific performance,) exonerate the 
 promisee from liability on his stipulation to complete a 
 transfer of shares (a); nor does breach of engagement by a 
 vendor to not interfere with the subject of sale (b), or to not 
 carry on a specified trade (c), exonerate the purchaser from 
 his undertaking to pay an Annuity as purchase money; nor 
 does breach of an engagement by the vendor of a Goodwill 
 to introduce the purchaser to his patients (d), nor absence 
 of Title on the part of a vendor (c), exonerate a purchaser 
 from liability to pay the purchase money by Instalments; 
 nor does a misstatement by a vendor of a Manor that the 
 fines are "arbitrary" seem to exonerate the purchaser (/). 
 And of course the breach by a Lessee of covenants bene- 
 ficial to the reversion cannot exonerate the lessor from a 
 covenant to give him an Option of Purchase (g), for the 
 lessee takes upon himself (by the purchase) all loss which 
 may accrue from such breach. 
 
 A promissor is (it seems) precluded from taking advan- Preclusion 
 tage of a breach by the opposite party as exonerating him "", om * akin g 
 from damages, by the same circumstances by which he breach, 
 would be precluded from taking advantage of a fraud (//) 
 as exonerating him. And Entry into possession by a 
 purchaser prevents his being exonerated by breach of an 
 essential stipulation (i) on the vendor's part, (or even of an 
 express Condition Precedent (h),) from liability to pay 
 Damages, except when complete restitution is granted. 
 The circumstances under which it will preclude him from 
 restitution, and prevent his being exonei-ated from liability 
 to specific performance, are probably the same as those 
 under which it will prevent him being exonerated therefrom 
 
 (a) Gibson v. Goldsmid, 5 D. G. M. 
 G. 757. 
 
 (b) Carpenters. Cresswell, 4 Bing.409. 
 
 (c) Humlock v. Blacklow, 1 Mod. 64. 
 (rf) Judson v. limcden, 1 Ex. 162. 
 (e) Cutler v. Bowye.r, 1 1 Q. B. 973. 
 
 (f) White v. Cuddon, 8 C & F. 766. 
 
 (g) Green v. Low, 22 Bea. 625. 
 
 (A) See ante, pp. 288 (e), 289 (£), 
 291 ie-T). 
 
 (i) Carter v. Scargill, L. R. 10 Q. B. 
 564.
 
 308 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 
 
 Compensation 
 allowed for 
 breach of non- 
 essential term 
 or independent 
 stipulation. 
 
 by lack of title in the Vendor, although the right to Title is 
 given not by the contract but by law (a). Entry into 
 possession (b) precludes a purchaser from insisting on 
 objections to title suggested by an abstract then already 
 delivered, unless it be authorized by the contract (c), or 
 (under circumstances) by the vendor (d), or be required by 
 the nature of the transaction (as on a Mining lease (e)). 
 But Continuance in a possession originally taken otherwise 
 than as purchaser has not (it seems) this effect (/). 
 
 Of course a breach which does not (as well as one which 
 does) exonerate a party from his contract entitles him to 
 Damages, or, (as it is called when given along with partial 
 specific performance to a purchaser,) Abatement (g), except 
 in some cases, (discussed in chapter XXXVIII,) in which 
 he specifically enforces part, and the rest is impossible. 
 When the only breach is in respect of Time he obtains 
 compensation for, delay by the ordinary rule (h) that each 
 contracting party is entitled to the consideration moving 
 from the other, and to the income of it as from the time 
 appointed for completion. But a party who waives his 
 right to be exonerated on account of delay by the opposite 
 party, or who has no such right, is not entitled to further 
 compensation for the delay (i), unless he has suffered 
 special damage, as, by Deterioration in the value of the 
 property (/), by Outlay (k), by the effluxion of Time (/) on 
 the sale or lease of a terminable interest, or by other special 
 circumstances (into the existence of which the Court will 
 
 (a) Ogilvie v. Foljambe, 3 Mer. 53. 
 
 (b) Brown v. Stenson, 24 Bea. 631; 
 Ogilvie v. Foljambe. 
 
 (c) Dixon v. A st ley, 1 Mer. 134; Clarke 
 V. Faux, 3 Russ. 320. 
 
 (d) Vancouver v. Bliss, 11 Vez. 464; 
 Burroughs v. Oakley, 3 Swan. 169. 
 
 (e) Hayward v. Cope, 25 Bea. 140. 
 
 (f) Dart, V. P. (4th Ed), 401. 
 
 (</) Accordingly Powell y. Elliott, L. 
 R. 10 Cli. 424. 
 
 (h) Ante, p. 86, sqq. 
 
 (£) Chinnock v. M. Ely, 11 L. T. N. 
 S. 537a. 
 
 (J) Sd. Chinnock v. M. Ely; Lord v. 
 Stephens, 1 Y. & C. 222; Ferguson v. 
 Tedman, 1 Sim. 530. 
 
 (Jt) Sd. Chinnock v. M. Ely. 
 
 (/) Sd. Chinnock v. M.Ely. But this 
 compensation must not be sought under 
 the name of abatement from the pur- 
 chase money, King v. Wightman, 1 Ans. 
 80.
 
 CONDITIONS PRECEDENT, AND ESSENTIAL TERMS, &C. 30'J 
 
 inquire if the contract provided that possession should be 
 given at a specified time (a)). But abatement is not 
 allowed for a misstatement of a matter of opinion, (for 
 example, the Value (g), as distinguished from the data on 
 which it might be calculated). And (as far as can be 
 ascertained in the present confused state of the authorities) 
 a purchaser is not entitled to abatement (c) or rescission (d) 
 on the ground of Implied Misdescription after he has ac- 
 cepted a Conveyance of what the vendor has, though there 
 was a stipulation in the contract that misdescriptions should 
 be compensated for (e), at least if the purchase money has 
 been paid (though only into Court and not yet distributed 
 (/), or only by cheque afterwards stopped (e)). But he is 
 entitled to abatement (g) on the ground of Express Misde- 
 scription (//) even though he has accepted Possession (/) 
 and Conveyance (/), at least if such a stipulation as just 
 mentioned was in the contract (/). And the same rule 
 seems to apply to other breaches by the vendor. The 
 Judges differ as to whether a purchaser is entitled, before 
 completion, to ascertain whether the property tallies with 
 the description (k). 
 
 («) Gedge v. D. Montrose, 26 Bea. 45. (»') Cann v. Cann; Bos v. Helsham; 
 
 (b) Powell v. Elliott, (R. P.), L. R. 10 and probably re Turner & Skelton. 
 Ch., 428-9, in which the principles on (j) Re Turner §• Skelton; Bos v. Hel- 
 which the amount of abatement for sham; this also occurred in Cann v. Cann, 
 overstatement of income is to be esti- but the ground of the decision there 
 mated are discussed. [620. was, that the misrepresentation was a 
 
 (c) Manson v. Thacker, L. R. 7 C. D. fraud for which an action at law would 
 
 (d) Leggev. Croker, 1 Ba. & B. 514-15. lie, but that, as the sale was made by 
 re) Manson v. Thacker. the Court of Chancery, that Court 
 
 (f) Thomas v. Powell, 3 Cox. 394, as would consider such an action as an act 
 explained L. R. 7 C. D. 623. of contempt towards it, and would, 
 
 (g) Re Turner <$• Skelton, L. R. 13 C. therefore prohibit it, and would, conse- 
 D. 130; Cann v. Cann, 3 Sim. 447; Bos quently, give the purchaser the sum 
 v. Helsham, L. R. 2 Ex. 72. which he, by such an action, might 
 
 (A) Re Turner 4' Skelton, contrasted have recovei'ed. 
 
 with Allen v. Richardson, 41 L. T. N S. (*) Re Turner $ Skelton, L. R. 13 C. 
 
 621b, the latter of which, however, was D. 133; contrasted with Allen v. Rich- 
 
 the case of a mistake, and therefore ardson, 41 L. T. N. S. 621b. 
 does not bear on the point discussed 
 here, see 283 (6) (c) (i).
 
 (310) 
 
 CHAPTER XXXVII. 
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 Excuse for 
 Breach of 
 Condition as to 
 the Legal (as 
 well as bene- 
 ficial) Estate. 
 Condition 
 Subsequent. 
 
 The Impossibility of performing a Condition Subsequent (a) 
 is equivalent to performance of it, even as regards the Legal 
 estate (b), if caused by the act of God(c), or of the Law (d), 
 or (probably) of the Queen's Enemies, or of the party 
 entitled to the forfeiture (e), or of him to whom it is to be 
 performed (/); but only so far as the impossibility extends 
 (g) ; and not if it was caused by the act of a stranger (d), or 
 of the party bound (d); nor if the condition is in the nature 
 of a Consideration (h), or Trust («'), or Charge (J); nor if it 
 be that a sum of money shall be forfeited on non-perform- 
 ance, unless it appear that the obligor or promissor was 
 not understood to be taking the risk upon himself (k). Cir- 
 cumstances making the performance dangerous to life seem 
 to have the same effect (/) as Impossibility. A Release (m) 
 is also equivalent to performance. And so is a Confir- 
 mation (m). And so is Acceptance of anything in Satis- 
 faction when the subject is a Chattel («) or the conditional 
 estate a chattel interest (»), but not if it be freehold (0) 
 because of the "importance of preserving the title clear, a 
 reason equally applicable to chattel interests, but, from a 
 
 (a) For definition of this term see 
 ante, p. 225. 
 
 (6) Authorities cited in n. (c) and (rf). 
 
 (c) Thomas v. Howell, 1 Salk. 170; 
 sd. Br. Ab. Conditions, 127; Aislabie v. 
 Rice, 3 Madd. 256. 
 
 (d) Sd. Br. Ab. snpra. 
 
 (e) Dor ley v. Langworthy , (beneficial 
 estate only), 3 B. P. C. 359; Vin. Ab. 
 "Condition" M.c. N.c. O.c; sd. Br. Ab. 
 supra. 
 
 (f) Authorities cited in 2 Cru. Dig. 28, 
 
 (g) Shipley v. Chappel, 3 Mod. 232. 
 (h) 5 Ed. II, Annuity, 44; 19 Hen. 
 
 VI, 67, 73. 76. 
 
 (i) Lewin on Trusts, (5th Ed.), 112 
 
 (7)- 
 
 (j) Authorities cited in Vin. Ab. 
 Condition, L., c. 3, 4, qualified by ib. 5. 
 
 (fc) This seems to be the principle to 
 be extracted from the decisions in 
 Vin. Ab. Condition H. c, I. c, 1, and 
 Brown v. C. London, 13 C. B. N. S. 828. 
 
 (/) As to a covenant see Lawrence v. 
 Twentiman, Vin. Ab. Condition G. C. 10. 
 
 (m) Sd. Vernon s Case, 4 Co. 1. 
 
 (u) Peytoe's Case, 9 Co. 77b. 
 
 (o) Sd. Peytoe's Case.
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 311 
 
 misapplication of precedents, not applied to them. Waiver 
 has the same effect (a) save that it does not preclude the 
 party from compelling by other means the performance of 
 that which constituted the condition. It is held to arise 
 from action on the assumption that there has been no 
 forfeiture (a) with knowledge of the forfeiture. Waiver 
 of the time of performance arises also from omission to 
 object When informed by the opposite party that he cannot 
 be punctual (b). On the other hand nothing (c) will be 
 considered equivalent to performance of a Condition Prece- 
 dent (d) unless performance was prevented by the party 
 entitled to take advantage of the breach. 
 
 Breach of a Condition is relieved against (e), (a recon- 
 veyance of the legal estate being compelled if it has passed 
 (i),) alike in respect of time (/), and otherwise (g); whether 
 the condition was contained in a Will (h), Lease (i), or 
 other (j) disposition, an Award m an action (k), a Bond (/) 
 or a Contract (m) ; and whether the condition was to Marry 
 with consent (n), to Settle property (o), to Repair (p), to 
 abstain from Subleasing (q), to Pay money (r), to Transfer 
 property (s), to perform Work (t), or otherwise (w); and 
 whether the conditional right was the retention of a Lease- 
 
 Condition 
 Precedent. 
 
 Relief on 
 Equitable 
 grounds against 
 breach of 
 Condition by 
 which disponee 
 was to retain 
 or obtain the 
 estate. 
 Condition 
 Subsequent. 
 
 (i) The mere Breach however, of a condition subsequent, does not transfer the 
 Legal estate to the party to whom the forfeiture accrues, but only entitles bim, 
 (by a reentry and in some cases by some other act), to transfer it to himself. 
 
 (a) Conceded, Vernon's Case, 4 Co. 2. 
 As to Conditions in Leases (which are 
 the only cases in which such questions 
 nOw arise) see Cioft v. Lumley, 6 H. L. 
 672 ; Ward v. Day, 5 B. & S. 359 ; Doe 
 T. Watt, 8 B. & C. 308. 
 
 (6) Carpenter v. Blandford, 8 B. & C. 
 575. 
 
 (c) See Sugd.Pow. (8th Ed.), 851 sqq. 
 
 (d) For definition of this term, ante, 
 p. 224. 
 
 (e) Popham v. Bampfield, (g.hc.o.) 1 
 Vern. 79, 169; Sanders v. Pope, (f.ip. 
 u.) 1 2 Vez. 282 ; Woodman v. Blake, (g. 
 h.r.c.) 2 Vern. 222 (which contrast 
 with Maston v. Wilhughby, cited be- 
 
 low) ; Bargent v. Thompson, (fj.p.a.) 
 (Time for Lessee's repairs under Special 
 circumstances) 4 Giff. 473. (Relief 
 was also, but on special grounds, given 
 in Northcote v. Duke, (g.i.q.a.) 2 Eden. 
 319); Aislabie v. Rice, (g.h.n.cd.'), 3 
 Madd. 256 ; ColUtt v. Collett, (g.h.n.cd.), 
 L. R. 2 Eq. 203; JBetts v. Burch, (g.m. 
 r.b.) 4 H. & N. 506; Magee v. Lavell, 
 (g.m.r.b.), L. R. 9 C. P. 107; Horner y. 
 Flintof, (f.g.m.r.s.b.), 9 M. & W. 679. 
 Protector Sfc. Co. v. Grice, (/.u.6.), L. 
 R. 5 Q. B.D. 121. 
 
 (/to v) Cases cited in the last note 
 and marked with these letters respec- 
 tively.
 
 312 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 hold (a), or of a sum which would otherwise be forfeited (b), 
 or the acquisition of real (c) or personal (d) property ; espe- 
 cially if the same forfeiture is to follow on a partial as on a 
 complete breach (e), though it was Stipulated that the sum 
 to be paid on breach should be deemed not a penalty but 
 Liquidated damages (/), unless the amount was deposited 
 with the party (g) (i), or with a stakeholder (h), or other 
 special circumstances occurred (i). But relief is only 
 granted if either the liability to forfeiture was imposed by a 
 contract or disposition (as distinguished from the rules of 
 law whether statutory (/), customary (k), or judiciary), or 
 it was imposed merely to secure payment of money (7), or 
 the breach was inadvertent (m), or some circumstances 
 occurred to preclude the party to whom the forfeiture 
 accrued from taking advantage of it («) ; and only if, (when 
 the condition does not bear a value in money's worth,) it is 
 fulfilled as nearly as circumstances admit, (as, when it 
 requires Consent to a Marriage (o)); and only if (in cases 
 in which the breach, so far as relieved against, does involve 
 
 (i) Perhaps, however, this decision (g) depended on the fact that the sum 
 there deposited was a part of the purchase money. The vendor is entitled, 
 (irrespectively of conditions of sale,) to the deposit if the purchaser wholly 
 repudiate the contract (g), hut not (it seems) if he break it in part only (p); 
 but he seems entitled to retain the deposit (p), though not any otber sum (q), 
 on even a partial default, if he has expressly stipulated that it shall be for- 
 feited (r). His right under the usual condition of sale, (which contains such a 
 stipulation,) is to recover, 1 — The deposit if unpaid (p), 2 — The amount (if 
 any) by which the deficiency on an actual resale exceeds the deposit (s), 3 — 
 The expenses attending on a resale (*) or attempted resale (f). 
 
 (a to d) Cases so marked in p. 31 1, (m) Nash v. C. Derby, 2 Vern. 537. 
 n. (e). (n) Conceded Peachy v. D. Somerset, 
 
 (e) Magee v. Lavell; Horner v. Flin- p. 988. 
 
 toff- Protector Sfc. Co. v. Grice. (o) As in the cases to whose names 
 
 (f) Magee v. Lavell; Horner v. Flintoff. I have added the letter n. 
 
 (g) Exp. Barrellre Parnell (g.m.r.b."), (p)Hinion v.Sparkes, (g.m.r.b.~), L.R. 
 L. R. 10 Ch. 512. 3 C. P. 161. 
 
 (h) Lea v. Whitaker, (g.m.s b.), L. R. (9) Betts v. Burch, 4 H. & N. 506. 
 8 C. P. 70. (r) As in Hinton v. Sparkes; and Betts 
 
 (t) Hinted in L. R. 9 C. P. 116. v. Burch. 
 
 (j~) Keating v. Sparrmo, 1 Ba. & B. (*) Ockenden v. Henly, (g.m.r.b.), E. B. 
 
 367. & E. 485. 
 
 (k) Peachy v. D. Somerset, 2 W. T. (<) Essex v. Daniel, (g.m.r.b.), L. R. 
 
 L. C. Eq. (3rd Ed.) 987. 10 C. P. 538. 
 
 (/) Conceded Peachy v. D. Somerset.
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 313 
 
 a loss to the party to whom the forfeiture accrued (a),) a 
 sufficient equivalent has been (b) or is to be (c) given, speci- 
 fically (b) or pecuniarily (c), (the amount of pecuniary 
 compensation being the sum sufficient to compensate for 
 the loss really suffered (d), rather than a sum bearing the 
 same proportion to it as the value of the thing forfeited 
 bears to the loss which would have been suffered from 
 breach of all the conditions); and (in cases in which pecu- 
 niary compensation is required) only if that compensation 
 be capable of estimation (e); and (in case of forfeiture of a 
 Lease) not if the breach be wilful (/), (but this exception 
 does not seem to extend to any other case (g)) ; and not if 
 such circumstances occur as would exonerate from an 
 engagement entered into in consideration of a stipulation to 
 the same effect as the Condition; nor (therefore) if there be 
 but one condition the performance of which was meant to be 
 secured (h) (though the penalty far exceed the damage suf- 
 fered (h)), unless the condition be divisible, (as, a condition 
 to pay money («')); nor if the part of the condition which was 
 broken was secured by a distinct portion of the penalty (j) 
 (even though such part admit of further subdivision, as, 
 when the condition is that ^"6oo shall be forfeited for each 
 month during which work remains unperformed (7)); nor 
 (on principle) if the condition be that the party shall give 
 security for the performance of his stipulations, (for which 
 
 (a) As in cases cited in this Chapter (g~) Kemble v. Farren, (/.m.i.a.) 6 
 except those in the next two notes. Bing. 141. 
 
 (b) As in Popkamv. Bampfield, Vern. (h) Price v. Green, (g.m.u.b.) 16 M. & 
 79, 167. W. 346; Atkyns v. Kinnier (g.m.ub.) 4 
 
 (cl Magee v. Lavell, L. R. 9 C. P. 107 ; Ex. 776; Galsworthy v Slrult, (g.m.u.b.) 
 
 Hornery. Flintoff, 9 M. & W. 679; Exp. 1 Ex.659 ; as to Pleadings, Hursty. Hurst, 
 
 Vaughan re Edridge, (J.ip.a.) T. & R 4 Ex. 579. 
 
 434; Dagenham T. D. Co. exp. Hulse, (i) Re Dagenham8fc , L. R. 8 Ch. 1022, 
 
 (f.m.r.c.) L. R. 8 Ch. 1022. (which I cannot reconcile with Bar- 
 id) Sd. Kemble r. Farren, (g.m r.b.) clay v. Messenger, L. J. 43 Ch. 449); 
 
 6 Bing. 148. and the cases on the Redemption of 
 
 («) Essential. Bracebridge v. Buckley, Mortgages. 
 
 (f.Lp.a.) 2 Pr. 200. (j) ParJitlv.Chambre, exp D'Alley- 
 
 (f) Bracebridge v. Buckley; Hill v. rac. (fk.i.b) L. R. 15 Eq. 36; Herbert 
 
 Barclay, (j fi p a.), 18 Vez. 56; sd. Bar- v. Salisbury $c. JR. Co., (f.m.i.b.) L. R. 
 
 gent v. Thompson, (f.i.p.a.) 4 Giff. 473. 2 Eq. 221. 
 
 40
 
 314 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 and other reasons the breach of a condition that a Lessee 
 shall insure was not relievable (a) until made so by statute 
 (&)); nor if the condition be for payment of the Rent reser- 
 ved by a Lease containing it (c), unless relief be sought within 
 Conditions six months after eviction (c). Nor is breach of a Condition 
 
 Precedent (d) relieved against, either in respect of Time (e) 
 or otherwise (/) ; whether it be contained in a Testamentary 
 (g) or other (h) Disposition or in a Contract (*); nor whether 
 it be to make an Award (j), to Settle property (k), to Marry 
 a specified person (I), or with a specified Consent (m), to 
 pay money (n), to give notice or request (0), or otherwise (p); 
 nor whether the conditional right be the making of Works 
 (q), Preemption (r), the acquisition of real (5) or personal 
 (t) property, the retention (u) or Redemption (u) of it, exon- 
 eration from debt (v), payment by one's debtor's Relative 
 of a Composition on the debt (iv), or otherwise (#), unless 
 either the conditional gift be a legacy of pure(j/) (1) person- 
 ality (z) in bequeathing which the testator regarded the 
 purpose of the legacy more than the condition (z), or the 
 condition practically operate as if subsequent [ai), or the 
 
 (1) " Pure Personalty" means a Chattel not charged upon, nor being an 
 interest in, nor raisable by dealing with, a tenement. 
 
 («) While v. Warner 2 Mer. 459. Finch 445; Thompson y. Hudson, (e.i.n. 
 
 (6) 22 & 23 Vic, c. 35, s. 4-9 ; 23 & p.v.) L. R. 4 II. L. 1 ; sd. exp. Bennet, (p. 
 
 24 Vic, c. 126. in.v.) 2 Atk. 527; re Button, (e.i.n.v.) 
 
 (c) 15 & 16 Vic, c. 76, s. 210. L. R. 7 Ch. 723; qualified by exp. King 
 
 (d) Sweet v. Anderson, 2 B. P. C. 256; re Harpier, (e.i.n.v.) L. R. 17 Eq. 332; 
 Daruley v. L. N. Jr. li. Co., Q-.i.j.q.) Williams v. Mostyn, (e.i.p.w.) (in which 
 L. R. 2 H. L. 43; Ranelagh v. Mellon, there were words making time essential 
 (ei.n.r.) 2 Dr. & S. 278; Weston v. but the Court did not rely on them) L. 
 Collins, (e.i.n.r.) 12 L.T.N. S 4; Mas- J. 33 Ch. 54, qualified by Franco v. 
 ion v. Willoughhy, (eg.n.r.) Vin. Ab. Alvares, (e.i.pw.) 3 Atk. 342, for defi- 
 Condition T. 3 12; (those marked (r) nition of "Condition Precedent" see 
 being qualified by Mills v. Haywood, (e. ante, p. 224. 
 
 i.n.r.) Li. R. 6 C. D. 196); Berty v. (e-x) Such of the above cases as are 
 
 Faulkland, ( fgl.s.) 12 Mod. 182, (com- so marked respectively. 
 
 promised on appeal); Clarke v. Parker, (y) Essential, Sheriff v. Morlock, W. 
 
 Xf.g.m.s.) 19 Vez. 1 (an extreme case); Kel. 24. 
 
 Harvy v. Aston, (f.g.m.t.') Cornyns 726 (z) Daicson v. Oliver-Massey, (f.g.m. 
 
 and see 19 Vez. 14; Atkins v. Hiccocks, /.) (in which the personalty estate 
 
 (f.g m.t.) 1 Atk. 500; Garbut v. Hilton, only wasin question), L. R. 2 C. D. 753. 
 
 (fg.tn.t.) 9 Mod. 410; Burgess v. Robin- («1) Burleton y.Humfrey, (/.jr.m.s.) 1 
 
 son, (eg.o.t.) 3 Mer. 7; Feversham v. Amb. 259. 
 
 Watson, (e.t. [Marriage Articles], i.w.)
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 315 
 
 beneficial estate passes immediately so that the condition 
 is precedent to the legal estate only (a); or the condition be 
 merely to release some right which the party has never 
 enforced (b); or the party to whom the forfeiture would 
 accrue dispensed with performance (c); or a third person 
 was to perform (d) or see to the performance of (e) the 
 condition, and he, for a reason personal to himself (/), or 
 negligently (e), or inequitably (g), omitted to do so. And (as 
 every condition subsequent by which property is divested 
 is pi'ecedent to the revesting of it, and may therefore be 
 considered a condition precedent whenever it has to be 
 performed by the Disponor) relief is not granted on breach 
 by the disponor of a condition by fulfilment of which he 
 might Redeem <Ji) or Repurchase (i) the property, whether 
 he (by the disposition) created that property (_/), sold it {h), 
 or released an existing right to redeem it (I) ; and though 
 the condition has become impossible by Act of God (m) ; 
 unless either the disposition was voidable on repayment of 
 the consideration (n); or the condition is construed as a 
 Charge (o), (which seems to be the case whenever it is to 
 pay money (p) and the right of redemption is reserved to a 
 third person, except when the condition confers a right of 
 Preemption (q)) ; or the disponee is to be entitled meanwhile 
 to compel redemption (r) or repurchase (s), (in which case 
 
 Relief on 
 Equitable 
 grounds against 
 breach of a 
 Condition by 
 performing 
 which the 
 disponor was to 
 Redeem, &c, 
 the estate. 
 When the 
 disponee may 
 not compel 
 performance. 
 
 When he may 
 — if Foreclo- 
 sure has not 
 been decreed. 
 
 (a) Wallop v. Shaftesbury, (e.h.k.s.') 
 Vin. "Condition" T. 3, 1. 
 
 (b) Haywardv. Angel, (e g.p t.) Vern. 
 222. 
 
 (c) To this may be referred, Wheeler 
 V. Warner, {fg.m () 1 S. & St. 310. 
 
 (d) Sd. Wotthington v. Evans, (f.g.m. 
 t.~) 1 S. & St. 172; Sprange v. Smith, 
 (f.h.m.s.) Amb. 263. 
 
 (e~) O'Callaghan v. Cooper, (e.g.k.t.) 5 
 Vez. 117. 
 
 (f) Sd. Worthington v. Evans. 
 
 (?) Sprange v. Smith. 
 
 (h) Barrell v. Sabine, (e.ft.n.u.) 1 Vern. 
 268. 
 
 (t) Williams v. Owen, (e.h.n.u..') 5 M. 
 & Cr. 303 ; Goodman v. Grierson, (e.ft.n. 
 «.) 2 Ba. & B. 275. 
 
 (j) Accordingly Preston v. Neele, [h. 
 n.u.) L. R. 12 C. D. 760; Joy v. Birch, 
 {h.n u ) 10 Bli. N. S. 200; Knox v. Tur- 
 ner, (h.n.u.) L. R. 5 Ch. 515. 
 (fc) Barrell v. Sabine. 
 (/) Ensworth v. Griffith, (e.l.n.u.) 5 B. 
 P. C. 184. 
 
 (in) Co. Litt. 206. 
 
 (n) Bromley v. Holland, (e.l.n.u.) 7 
 Vez 3. 
 
 (o) Bland y.Middlelon. (e.gn .*.) 2 Ch. 
 Ca. 1 ; Wallis v. Crimes, (e././j.w.*.) 1 Ch. 
 Ca. 90. 
 
 (p) Cases cited in n. (o); Wright v. 
 Wilkin, 2 B. & S. 232; Att.-Gen. v. 
 Wax Chandlers' Co., L. R. 6 H. L. 1. 
 (9) Masion v. Willoughby, (e.g.n.s.) 
 
 Vin. Ab. "Condition," T. 3, 12.
 
 316 
 
 RELIEF AGAINST PENALTIBS AND FORFEITURES. 
 
 — if it has. 
 
 Miscellaneous 
 Points. 
 Increase of 
 Interest on 
 debt. 
 
 it is held that the disposition is a security and that the 
 beneficial estate continues in the disponor till breach, so that 
 the doctrine of relief against forfeitures becomes applicable 
 in his favour), as, when he conditionally offers to vest in 
 a Creditor the right to participate in a Trust-deed {a), or 
 when he disposes of property in consideration of a sum 
 which he binds (b) himself or is bound (c) to repay, (in which 
 case the breach is equally relievable though the disposition 
 be absolute in form id) and stipulate that the time for 
 redemption shall be essential (e), and such stipulation is 
 therefore void (e) ). And the Court may authorize redemp- 
 tion even after the time prescribed for it by a Foreclosure 
 decree, importing that the foreclosure shall (on failure to 
 pay punctually) become absolute (/); and it generally does 
 authorize this (even after the mortgagee has sold the estate 
 (/) ) if the value of the estate be much greater than the 
 amount of the mortgage-money (g), or the property be 
 specially prized by the mortgagor (/), unless the mortgagor 
 has long delayed (g). But the Foreclosure cannot be 
 opened as to one party without being opened as to all (A). 
 
 But relief against an agreement in a Mortgage to pay 
 additional Interest whenever the interest may be in arrear 
 seems to depend on the wording of the clause (i). 
 
 And the doctrine of relief is inapplicable when the for- 
 feiture is to be occasioned by an act to be done by the party 
 who made the conditional disposition, for then a dispensation 
 with the terms of the condition would cause, (not prevent,) 
 a forfeiture (J). 
 
 (a) Sd. Williams y. Mostyn, (p.i.h.v.*) 
 L. J. 33 Ch.54; Whitmore v. Turquand, 
 (p.ih.v.) 3 D. G. F. G. 107; Re Babers 
 Trusts, (p.i.h.v.) L. R. 10 Eq. 554. 
 
 (b) Accordingly Fernery. Winstanley, 
 (A.n.u.x.) 2S.& L.393; implied in Knox 
 y. Turner; Preston y. Neele; Fisher on 
 Mortgages (2nd Ed.), 14-15; Williams 
 V. Owen (e.h.n.u.) 5 M. & Cr. 307-8. 
 
 (c) Sd. Thompson y. Hudson, (e./t.i.n. 
 *.) L. R. 4 H. L. 15. 
 
 (d) Sevier y. Greenway, (ph.n.u.) 19 
 Vez. 413; Baker y, Wind, (no time pre- 
 
 scribed) 1 Vez. 160; and see May v. 
 May, 33 Bea. 81. 
 
 (e) Sd. Davis v. Thomas, 1 R. & M. 
 513. 
 
 (f) Campbell y. Holyland, L. R. 7 C. 
 D. 166. 
 
 (<;) Campbell y. Holyland. 
 
 (A) Patch v. Ward, 4 Giff. 96. 
 
 (i) 2 Dav. Con. (,3rd Ed.), 592-3; cee 
 Herbert v. Salisbury T. Co., L. R. 2 Eq. 
 221. 
 
 (i) Co. Litt. 206a, Vin. Ab. Con- 
 dition I, c. 15.
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 317 
 
 The Judges having Jurisdiction in Lunacy relieve a Tenant 
 whose landlord is lunatic from forfeiture of his lease 
 in cases in which the Judges think such a course prudent 
 (a). 
 
 Concealment of a Mortgage from an intended second 
 mortgagee disentitles the mortgagor to redeem the latter (b) 
 if his mortgage was honestly obtained (c). 
 
 And an agreement to forfeit a sum in case of breach of a 
 condition is held to imply an agreement to perform that 
 condition, for breach of which agreement damages may be 
 recovered if preferred (d). 
 
 Lunatic's 
 
 Tenant 
 
 relieved. 
 
 Concealment 
 
 of Mortgage 
 from Second 
 Mortgagee. 
 
 Condition 
 implies agree- 
 ment to 
 perform. 
 
 (a) Exp. Vaughan re Edridge, T. & 
 R. 434. 
 
 (6) 4 W. & M. c. 16, interpreted by 
 Kennardv. Futvoije, 2 Giff. 81. 
 
 (c) Stafford y. Selby, 2 Vera. 589. 
 
 (d) Blake v. Peters, 1 D. G. J. S. 345 ; 
 Fonblanque on Equity 153 (d), qualifi- 
 ed by Magrane v. Archibold, 1 Dow. 
 107.
 
 ( 318 ) 
 
 CHAPTER XXXVIII. 
 
 RIGHT OF PURCHASER, &C. TO ENFORCE WHAT HE CAN REQUIRE 
 
 WITH ABATEMENT FOR THE REST; AND HIS LIABILITY TO 
 
 COMPENSATE THE VENDOR FOR EXCESS. 
 
 Generally. 
 
 Purchaser who 
 cannot obtain 
 all may enforce 
 practicable 
 part. 
 
 These rights are so nearly akin in their effects to those 
 discussed in Chap. XXXVI, that, although dependent on 
 widely different principles, they must find a place here: 
 
 A party entitled to specifically enforce a Contract part 
 of which is impracticable may enforce the rest (a), whether 
 the Contract was to Sell (b), or Lease (c) ; and whether the 
 performance of the omitted part is impossible (d), or unen- 
 forceable (e), or becomes unlawful (/); and whether the 
 deficiency is that the Vendor is only entitled to part of the 
 agreed subject (g), or to a share in it (A), or that its size is 
 less (?'), or that the interest dealt with is shorter (/), or will 
 commence later (k), than was supposed, or that the property 
 is subject to incumbrances (/), or to an easement, (as, a 
 right to work coal mines under it (m), or to live rent free in 
 Cottages on it (n), or that the Vendor cannot make agreed 
 improvements on it (o) or on adjoining land (p). 
 
 This Rule is peculiarly applicable if the Contract provide 
 that Misdecriptions shall be compensated for (q) ; but does 
 
 Griffith, (b.d.j.z.), 1 Swan 54; Painter v. 
 Newby, (b.d.j.q.z.), 11 Hare 26; Barker 
 t. Cox, (b.d.k.z.) L. R. 4 C. D. 464; Net- 
 thorpe v. Holgate, (b.cl.k.z.) 1 Coll. 203; 
 Ramsden v. Hurst, (b.djn.z.) L. J. 27 Ch. 
 482; Brandling y. Plummer, (b.d.n. and 
 in effect z.), 2 Drew. 427; Peacock v. 
 Penson, (b.e.p.q.z.) 11 Bea. 355; Mc. 
 Kenzie y. Hesketh, (c.d.i.t.) L. R. 7 C. 
 D. 675; Bettesworth y. D. St. Paul's, (c. 
 fj.) 1 B. P. C 240; Middletony. Green- 
 wood, (c.e.o.z.) 2 D. G. J. S. 142. But 
 Johnson v. Johnson, 3 B. & P. 162 turns 
 on another point. 
 (b-q) Cases so marked in note (a). 
 
 (a) Sd. Mestaer v. Gillespie, 11 Vez. 
 640; TPhittemorev. Whittemore,(b.d.g.z.) 
 L. R. 8 Eq.603; Westerny. Bussell, (6. 
 d.g,) 3 V. & B. 192 ; Maw v. Topham, \b. 
 d.h.) 19 Bea. 576; Hooper v. Smart or 
 Bailey v. Piper, {b.d.h.z.) L. R. 18 Eq. 
 683; Jones v. Emus, (b.dh z.) L. J. 17 
 Ch. 460; Horrocks v. Bigby, {b.d.lul.z.) 
 L. R. 9 CD. 180; Cordingley v. Cheese- 
 brough, (b.d.i.) 3 Giff. 496; Durham v. 
 Legard, [b.d.i.) 13 L. T. N. S. 82; Hill 
 v. Buckley, {b.d.i. z.) circumstances spe- 
 cial,) 17 Vez. 394; King v. Wilson, (6. 
 d.i.z.) 6 Bea. 124; Barnes v. Wood, (b, 
 d.j.z.) L. R. 8 Eq. 424; sd. Wood v.
 
 ment. 
 
 RIGHT OF PURCHASER TO ENFORCE WITH ABATEMENT. 319 
 
 not apply if the effect would be to leave on the Vendor's 
 hands such a portion of (a), or partial interest in (b), the 
 property, as cannot be fully enjoyed apart from that portion 
 or interest which the Purchaser would acquire; nor if the 
 sale of that portion without the rest would be a breach of 
 trust (c), or be otherwise prejudicial to a third person (d) ; 
 nor if the Purchaser knew (e) of the defect (it being serious) 
 when he contracted (e), (as, if there were two Vendors, and 
 the purchaser knew that one had no definitive intention (/), 
 or was under disability (g), or that his share would not be 
 bound,) but this does not extend to mere knowledge of 
 circumstances suggestive of the defect, (as, that the property 
 was occupied by a person who turned out to have an im- 
 portant interest in it (h) ). 
 
 A party entitled under the above rule to enforce part of With Abate- 
 a contract is also entitled to abatement in respect of the 
 rest (i), though it was stipulated that Misdescriptions should 
 not be compensated for (/) (unless the deficiency be small 
 (/)) ; and especially if it was stipulated that they should (k) ; 
 but only (it seems) if there be some standard by which to 
 estimate the compensation (/), (and therefore not if the 
 deficiency be lack of title to such Mines as may be under 
 the property (m), or be an Incumbrance on a benefice the 
 Advowson of which is the subject of sale («), or be that 
 
 (a) Sugd. V. P. (14th Ed.) 316, pi. 8. (g) Castle v. Wilkinson. 
 
 (b) Sd. Wheatley v. Slade, (bdh) 14 (A) Xelthorpey. Holgate- Brandling v. 
 Sim. 126, as modified by the criticism Plummer; James v. Lichfield (b.d k.) L. R. 
 in Sugd. V. P. 317. But it is doubtful 9 Eq. 51, (in which it was held that ho 
 whether the Court there meant to de- was not entitled to compensation, as to 
 cide more than that compensation which see below). That a vendor can* 
 should not be allowed. Nothing was not enforce in this case see p. 295 (.b). 
 left on the vendor's hands in Hooper v. («') Cases marked z in n. (a). 
 Smart. (J) Whillemore v. Whitiemore. 
 
 (c) Said Maw v. Topham. (k) Cases marked q in n. (a). 
 (J) Thomas v. Bering, (b.dj i.) 1 Ke. (/) See White v. Cuddon, 8 C. & F. 
 
 729;Grahamv. Oliver, {b.dg.) 2, Bea 124. 766; and Bainbridge v. Kinnaird, 32 
 
 (e) Harnett v. Yielding, (c.dg.) 2 S. & Bea. 346 
 L. 549; Price v. Griffith, (c.d.h.) 1 D. G. (m) Alvanley v. Kinnaird, (be.) 2 M. 
 M. G. 80; Castle v. Wilkinson, (b.d.h) L. & G.' 1. 
 
 R. 5 Ch. 534. Knowledge is essential, («) Edwards-Wood v. Marjoribanks, 
 
 Horrocks v. Jiigby. [b.e.) 7 H. L 806. 
 
 (f) Price v. Griffith.
 
 320 RIGHT OF PURCHASER TO ENFORCE WITH ABATEMENT. 
 
 property, described as subject to a lease to two persons, is 
 really subject to a Lease made to another person and now 
 vested in one of the two specified (a)); and not, (it has been 
 held,) if the purchaser knew all the circumstances suggestive 
 of the defect, (as, that the property is occupied by one who 
 turns out to have an interest in it (b)); nor in respect of 
 incumbrances imposed by law, as Taxes (c) ; nor if the defi- 
 ciency be an incumbrance which the purchase money would 
 be insufficient to discharge (d) ; nor (it seems) in any case 
 in which the defect is essential in the sense already (e) 
 defined; nor (therefore) if it be that the Size of the property 
 is much less than (/), or its Tenure different from (g), that 
 stipulated for, (though it was agreed that Misdescriptions 
 should be compensated for (h), and especially if it was 
 agreed that they should not (*) ) ; nor if the property would 
 not answer the purpose for which it was purchased, (as, 
 Sporting (;')); nor in respect of Timber to which the Vendor 
 cannot show title, the land being Copyhold (k), (though it 
 had been agreed that the purchaser should pay a distinct 
 price for the timber and was argued that he should be 
 exempt at least from this (k), and though land was partly 
 freehold and partly copyhold, and the vendor was not to 
 show which was which (/)). 
 
 And in some A purchaser is entitled to accept an imperfect title (m) ; 
 
 cases Indem- 
 
 nl ^' (a) Ridgeway v. Gray, (b.e.) 1 M. & the ground of decision was that stated 
 G. 109. ' in the text); sd. Wheatley v. Slade, 4 
 {!>) James v. Lichfield, approved by Sim. 127; contra sd. Cordingley v. 
 one Judge in Phillips v. Miller, L. R. 10 Cheeseborough, 3 Giff. 504. 
 C. P. 427. But Melthorpe v. Uolqate, (g) Sd. Durham v. Legard. 
 (in -which the occupier was also the (h) For in Durham v. Legard, it was 
 freeholder), and Brandling v. P.ummer, agreed that all usual stipulations 
 (iu which the decree for compensation should be inserted in the formal con- 
 was postponed until enquiry should be tract. 
 made), are contrary. (i) As in Cordingley v. Cheesebrough. 
 
 (c) Barraudv. Archer, (b) 2 Sim. 433. (j) Durham v. Legard. 
 
 (d) Maw v. Topham: But ought he (k) Crosse v. Lawrence, (b g.) 9 Hare. 
 not to be entitled, after paying off the 462. 
 
 incumbrance, to deduct the balance as (/) Crowe v. Keene, (b.g.) 9 Hare. 469. 
 
 an abatement. ("') Ante, p. 103 (e) ; Tut pin v. Cham- 
 
 (e) Ante, p. 299. bers, 29 Bea, 104; Bennett t. Fowler, 2 
 ("/) Durham v. Legard, (in which Bea 302. 
 
 the income was correctly stated, and
 
 LIABILITY OF PURCHASER TO COMPENSATE VENDOR. 321 
 
 but he is never entitled to an Indemnity against a defect in 
 the title (a); nor against the chance that an incumbrance, 
 by which other property of the Vendor is also bound, may 
 be levied upon the subject of sale (b); unless he has 
 stipulated for such indemnity (c). But a purchaser who 
 stipulated for an indemnity which it is afterwards found 
 cannot be given is entitled to another indemnity instead (d), 
 
 A Purchaser, entitled under the rule above discussed to Or may (in 
 
 so mo CEISGE^ 
 
 an abatement, but the amount of the abatement due to R esc i n d, 
 whom cannot be ascertained, is entitled to rescind and to 
 recover back any purchase money he may have paid (/). 
 
 Excess in the Quantity, Duration, &c, of the subject of Vendor of 
 sale, over what the parties contemplated, seems to make the g re ater*than 
 purchaser's right to specific performance conditional on his £S ree( l for is 
 proportionately increasing the price (g) ; especially if the perform only 
 contract stipulated that excess should be compensated alfowVompen- 
 for; but even such a stipulation only applies when the sation. 
 excess is moderate (as fths (h) of the whole), and probably 
 cannot even then be enforced against a purchaser who 
 prefers rescission (z). 
 
 So, a purchaser of property subject to burthensome Vendor of 
 
 covenants is only entitled to specific performance if he burthened is 
 
 covenants to indemnify the vendor against subsequent tound t0 
 
 J perform only if 
 
 breaches. And this holds though he was not aware of the purchaser 
 
 , i , , rv ; j / -\ covenant to 
 
 covenants when he contracted (j). indemnify. 
 
 (a) Balmanno v. Lttmley, 1 V. & B. (g) From Dart on Vendors, (4th Ed.), 
 
 224; approved I'atonv. Brebner, 1 Bli. 592-3, 595 (o), it appears that that 
 
 67. great Lawyer has not found any daci- 
 
 (b)Bainbridgev. Kinnaird,o2T5ea. 346. sion establishing this right; nor have 
 
 (c) Conceded, Aijktt v. Ashton, 1 M. I, on a search through the digests alike 
 
 & Cr. 1 14. earlier and later than the date of his 
 
 (</) Milligan v. Cooke, 16 Vez. 1. 4th Edition. 
 
 («) Lukey v Higgs. 24 L. J. Ch. 495. (h) Leslie v. Tompson, 9 Hare. 268. 
 
 (f) Westmacott v. Rcbins, 4 D. G. F. («) Dart, 593-4. 
 
 J. 390. 0) Luke y v - iJi 99 s , L - J - 24 Ch. 495. 
 
 41
 
 ( 822 ) 
 
 CHAPTER XXXIX. 
 
 RESULTING AND CONSTRUCTIVE USES AND TRUSTS. 
 
 Eule: A 
 
 Disposition to 
 another, or a 
 Purchase in 
 his name, does 
 not necessarily 
 give him the 
 Beneficial 
 estate. 
 
 Owing to the frequency of dispositions made merely to 
 vest fiduciary powers in the disponee, or to evade the 
 technical rules already (a) discussed as affecting the legal 
 estate, a Disposition or dealing made without any special 
 indication of an intention to affect the Beneficial estate 
 merely transfers the Legal estate or the power of calling 
 for it, or confers fiduciary powers, whether it be a dispo- 
 sition (directly (b) or through the custodian of the fund (c)) 
 to the party, or a purchase (d) (i) &c. in his name; and 
 whether it gives a perfect title, (as, a transfer of Stock does 
 (e)), or not (/); and whether the subject be a tenement (g) r 
 or a fund (h); and though the purpose be to violate the law 
 (i ) ; and though the transaction be a mere contract to pur- 
 chase (j), (unless the vendor be seeking specific enforcement 
 (k), or the person intended to be benefitted have given 
 some valuable consideration (/)); and the rule especially 
 holds if the disponee was not informed (in) of the dispo- 
 
 (i) The cases on purchase in another's name, and those on dispositions made 
 for the disponor's use, depend on the same principle, and are here treated 
 together. 
 
 (a) Ch. XXV, p. 211. In former 
 times there were other motives, which 
 are discussed in the introductions to the 
 text-books on Uses and Trusts. See 
 also ante, p. 94-95. 
 
 (b) Cases cited in Lewin on Trusts 
 (5th Ed ), 1 16. {b.)(c \andcasescitedin 
 p. 326 as to the Statute of I'ses. But 
 the doctrine is denied in other author- 
 ities, cited in Lewin, which, however, 
 probably meant no more than that the 
 ordinary declaration of use is sufficient 
 to prevent a Resulting trust 
 
 (c) Gasketl v. Gaskell. 2 Y. & J. 502. 
 
 (d) Wray v. Steele, 2 V. & B. 338 ; 
 Rider v. Kidder 10 Vez. 360; Young v. 
 Peachy, 2 Atk. 256. 
 
 (e) Rider v. Kidder; Field v. Lonsdale; 
 Sculthorp v. Burg.ss, cited in Lewin. 
 
 (f) D. Norfolk v. Browne; Gaskell v. 
 Gaskell; Wray v. Steele; Field v. Lons- 
 dale; L. Tyrrell's Case, and Hayes v. 
 Kingdome, both cited in Lewin. 
 
 (<7) D. Norfolk v. Browne; Ga;kellv. 
 Gaskell; Wray v. Steele; Rider v. Kidder; 
 Seaman v. Warman, cited in Lewin. 
 
 (h) Sculthorp v. Burgess; L. Tyrrell's 
 Case. 
 
 (i) Field v Lonsdale, 13 Bea. 78. 
 
 (j ) Skidmore v. Bradford, L. 11. 8 Eq. 
 136; Drew v. Martin, 2 H. & M. 130. 
 
 (Jfc) Drew v. Martin. 
 
 (J) Skidmore v. Bradford. 
 
 (m) Norfolk v. Brown*, Pre. Ch. 80; 
 Gaskell v. Gaskell.
 
 RESULTING AND CONSTRUCTIVE USES AND TRUSTS. 323 
 
 sition or if a partial trust was declared (a) ; but does not 
 apply if an Intention to pass the beneficial estate be ex- 
 pressed in the disposition (b), or proved (c), or probable 
 (d); nor if the disposition be Testamentary (e); or be a 
 settlement and the limitation in question be one which is 
 usually beneficial in settlements (/) ; nor if it be made for 
 Value (g), or state that it is so (h) ; nor if the disponor be so 
 related to the disponee that the law considers him under 
 a Moral Obligation to provide for him (*), or (perhaps) 
 so related that an intention to provide for him is prob- 
 able (»'); nor if the property be held of a manor by the 
 custom of which the rule is not to be applied (/); unless, 
 (in each of these cases,) some of the countervailing circum- 
 stances which I am about to state be present. And the rule 
 does not extend to the operation of a disposition in barring 
 an entail (k). 
 
 On the same principle, a parly who pays off an incum- corollary: 
 
 brance is held to become entitled to it by way of transfer (/), Tlie Redemp- 
 
 . rr i tion of a Charge 
 
 though he have an interest in the estate affected by it, (as, does not 
 
 when he is Life-tenant (m), or owner subject to a Shifting JJSTSh'it 
 Clause (n), or purchaser entitled to rescind (<?)); but only if 
 the incumbrance be specific (p) ; and not if his intention ap- 
 pear to be to extinguish it (q) ; nor if he was absolute owner 
 (r) (unless his intention appear to have been to become 
 transferree (s) ; nor if he was entitled to acquire the owner- 
 
 (a) Cases on Creditor's deeds, cited 
 above, p. 98 (c). Ward v. Uyas, 1 LI. 
 & G. 117; Langham v. Nenny, 3 Vez. 
 467; qualified by Fisher v. Brierley, 10 
 H. L. 159. 
 
 (6) Below p. 324 (f.)-{h.) 
 
 (c) Below p. 324 (*)-(/.) 
 
 (d) Curteis' Trusts, L. R. 14 Eq. 220. 
 
 (e) Below p. 324 (m). 
 
 (/) Bay lis v. Newtown, 2 Vern. 28. 
 
 (g) Exp. Wilcocks, 44 L. J. Bank. 12. 
 
 (/>) Below p. 325 (/)-(*.) 
 
 (i) Below p. 325 (/.) sqq. 
 
 (j) Edwards v. Fidel, 3 Mad. 237. 
 
 (ik) Tanner v. Radford, 6 Sim. 21. 
 And, as to the resulting use on the 
 barring of a legal entail see Nightingale 
 Y. Ferrers, 3 P. W. 206. 
 
 (/) Crow v. Petlingill, L. J. 33 Ch. 
 186. 
 
 (m) Redinglon v. Redington, 1 Ba. & 
 B. 131; sd. St. Faul y. V. Dudley, 15 
 Vez. 172-3. 
 
 (n) Drinhwater v. Combe, 2 S. & St. 
 340. 
 
 (o) Mycock v. Beatson, L. R. 13 C. 
 D. 384. 
 
 (p) Morhy v. Morley, L. J. 25 Ch. 7. 
 
 (q) Astley v. Miller, 1 Sim. 298; 
 and see Burrell v. B. Egremont, 7 Vez. 
 206; Tyrwhitt v. Tyrwhilt, 32 Bea. 244. 
 
 (r) Hood v. Phillips, 3 Bea. 513; and 
 see Swinfen v. Swinfen, 29 Bea. 199. 
 
 (s) Wigsell v. Wigsell, 2 S. &. St. 364 ; 
 Kirkham y. Smith, 1 Vez. 521.
 
 32-1 RESULTING AND CONSTRUCTIVE USES AND TRUSTS. 
 
 Particular 
 discussion of 
 some of the 
 circumstances 
 which affect 
 the beneficial 
 estate. 
 Intention 
 expressed in 
 the disposi- 
 tion. 
 
 Intention 
 6hewn apart 
 from the 
 disposition. 
 
 Testamentary 
 character of 
 the disposition. 
 
 ship by barring an Entail (a), or, I assume, by exercising a 
 power, (unless either his intention appear to have been as 
 last-mentioned (b), or he supposed himself to be owner (c)); 
 and not as to any amount by which the interest on the 
 incumbrance exceeded the income of the property (though 
 he was life-tenant (d)), unless his intention appear (e). 
 
 A direction that the beneficial estate shall pass is (of 
 course) operative, and is implied from a direction that a 
 part of it shall not pass (/), and also from the use of the 
 word "charge" rather than "trust" in imposing a void 
 incumbrance (g), and a mere declaration that the dispo- 
 sition is "to the use of" the disponee seems to be sufficient 
 to entitle him to the estate if there be no countervailing 
 circumstances (h). 
 
 An intention to pass the beneficial estate may be proved 
 by direct testimony (i), or by evidence of circumstances (_/); 
 especially if the transaction be the only means by which 
 it could be transferred without writing (k) , or if, on purchase 
 in another's name, he was named in the contract as a 
 party, and it was signed by him (/). 
 
 A testamentary disposition, being outside thereason of the 
 rule, generally transfers the beneficial estate (m). But not 
 if declared to be on trust («), or for a special purpose (<?); 
 though the trust be but partial (p) or fail, (whether because 
 
 (a) Wigsell v. Wigsell, 2 S. & St. 364; 
 Kirkham v. Smith, 1 Vez. 521. 
 
 (i) Sd. St. Paul v. V. Dudley, 15 
 Vez. 173. 
 
 (0 Ante, p. 284 (c). 
 
 (d) L. Kensington v. JBouverie, 7 H. L. 
 557. 
 
 (e) Hinted, L. Kensington v. Bouverie. 
 
 (f) Adams v. /. of Savage, Ld. Raym. 
 854. Rowley v. Holland, Vin. Ab. F. 1 1. 
 
 (g) King v. Denison, 1 V. & B. 260, 
 qualified as to Wills made before 1837 
 by Jones v. Mitchell, 1 S. & St. 290. 
 
 (/i) Consistent with the cases cited in 
 Lewin 116. 
 
 (i)Fowkesy. Pascoe,h. R. 10 Ch. 343. 
 
 0) Curteiss Trusts, L. R. 14 Eq. 217; 
 Patstone v. Salter, L. R. 10 Ch. 431; 
 
 Fowkes v. Pascoe, (in which there was 
 also slight testimony); So, as to uses, 
 Thrustout v. Peake, 1 Stra. 17. 
 
 (k) B at stone v. Salter. 
 
 {I) Skidnwre v. Bradford, L. R. 8 Eq. 
 134. 
 
 (m) Cases in following notes. 
 
 (o) Kellett v. KelLtt, 3 Dow. 248; 
 qualified by A tt.-Gen. v. Catherine Hall, 
 1 Jac. 331. 
 
 (p) Ellcock v. Mapp, 3 H. L. 492; 
 Longley v. Long ley, L. R. 13 Eq. 133; 
 Tregonwell v. Sydenham, 3 Dow. 194; 
 Dunnage v. White, 1 J. & W. 583; Chal- 
 mers v. Brailsford, 1 8 Vez. 368 ; Hodgson 
 v E. Bective, 1 H. & M. 376, qualified 
 by Smith v. King, 16 Ea. 283.
 
 RESULTING AND CONSTRUCTIVE USES AND TRUSTS. 325 
 
 not stated (a), or because uncertain (b), or because illegal (c), 
 or by lapse (d), or by breach of condition (e)); and though 
 the Will direct that the person to whom the estate would 
 devolve on intestacy shall not be entitled (/) (for such a 
 direction is only (/) effectual when the Will shows who is 
 to take) ; and though the devisee be the testator's Wife (g), 
 or relative (h). But the imposition of a charge does not pre- 
 vent the beneficial estate passing (i). 
 
 A statement in the disposition that it is for Valuable 
 consideration makes it carry the beneficial estate (7), though 
 it be really gratuitous (/); but not if the consideration 
 named be absurdly small (k), (for then the statement is 
 understood to be inserted merely to make the disposition 
 operate on the legal estate, which otherwise it would only 
 under some circumstances do). 
 
 A Relationship of the disponor to the disponee, placing 
 the former under an obligation to provide for the latter (I), 
 or (perhaps) rendering it probable that he means to do so 
 (m), makes the disposition carry the beneficial estate, 
 though the disponee be already fully Advanced (11); and 
 though important rebutting circumstances occur (0) ; and 
 especially if partial interests be limited by the disposition 
 (p) ; but not if, when the disposition was made, the disponee 
 held a Confidential relation to the disponor (q); nor if the 
 
 Valuable 
 consideration 
 stated in the 
 disposition. 
 
 Relationship 
 implying 
 obligation to 
 provide. 
 
 (a) Collins v. Wakeham, 2 Vez. 683; 
 Sheldon v. Barnes, 2 Vez. J. 447 ; Lewin 
 119, (/>«.)• 
 
 (6) Lewin, 119 (h). 
 
 (c) Lomas v. Wright, 2 M. & K.779; 
 Tregontcell v. Sydenham, 3 Dow. 194. 
 
 (rf) Lewin, 120 (6). 
 
 (e) Lomas v. Wright, 2 M. & K. 779. 
 
 (f) Nash v. Smith, 17 Vez. 29. 
 
 (jg) Wych v. Packington, 3 B. P. C. 
 44. 
 
 (h) Hobart v. C. Suffolk, 2 Vera. 644. 
 
 (i) Theobald on Wills, 448-9, Lewin, 
 118 (a). 
 
 (j) Lomax y. Whitley, 4 Russ. 423. 
 
 (Jfc) Sd. Sculthorpe v. Burgess, 1 Vez. 
 J. 92 ; Hayes v. Kingdome, 1 Vera. 33. 
 
 (I) Cases cited below. And see note 
 in 1 Coll. 265. 
 
 (m) Sayrev. Hughes, L. R.5 Eq. 380; 
 Contra, sd. Bennett v. Bennett, L. R. 10 
 C. D. 477. 
 
 (n) Hepworth v. Heptvorth, L. R. 11 
 Eq. 10, qualified by note (m) below. 
 
 (o) Grey v. Grey, 2 Swan. 594, Finch 
 338, 1 Ca. Ch. 295, Lewin on Trusts 
 143; Dyer v. Dyer, 2 Cox. 92, approved, 
 1 5 Vez. 43-50 j Taylor v. Taylor, 1 Atk. 
 386; Lampteigh v. Lampleigh, 1 P. W. 
 Ill; Contra. Slock v. Afc. Avoy, L. R. 
 15 Eq 28. 
 
 (/)) Baylis v. Newton, 2 Vera. 28. 
 
 {q) Garrett v. Wilkinson, 2 D. Q. S. 
 244.
 
 826 RESULTING AND CONSTRUCTIVE USES AND TRUSTS. 
 
 Extension of 
 the rule (by 
 the Statute of 
 Uses) to the 
 Legal estate. 
 
 transaction consists in payment by a Husband into his 
 Wife's name at a banker's, (because the right of action is 
 in him alone (a)); nor if the disponor's Intention at the time 
 (b) was to continue owner (c), in proof of which the then 
 surrounding circumstances (d), his then declarations (e) 
 (though oral (e)), and his testimony at the trial (/), are 
 admissible, and (amongst the first) previous Advancement 
 is material (g). The relationships by which this obligation 
 is imposed are, those of lawful (h) Husband (i), lawful (J) 
 or putative (k) Father, Grandfather (/) if father dead (/), and 
 (perhaps) near legitimate Relation who has taken upon 
 himself the duty of providing (in) ; but not those of Wife, 
 Mother («), Grand-parent (o) during the parent's life (<?), or 
 remoter Relative except when standing in loco parentis 
 (which however is not sufficient without legitimate relation- 
 ship (p)). 
 
 The Statute of Uses (q), (which was passed to prevent 
 the unnecessary severance of the legal from the beneficial 
 estate and will be discussed further on,) renders dispositions 
 as inoperative (r) on the legal estate as upon the beneficial, 
 
 (a) Lloyd v. Puyh, L. R. 8 Ch. 83; 
 Marshall v. Crutwell, L. R. 20 Eq. 328. 
 
 (6) Essential, Murless v. Franklin, I 
 Swan. 133; Bateman v. Bateman, 2 Vern. 
 436. 
 
 (c) Cases in next three notes. And 
 see discussion in L. R. 1 C. D. 419. 
 
 (d) Bone v. Pollard, 24 Bea. 283; 
 Prankerd v. Prankerd, 1 S. & St. 1 ; 
 Stock v. Mc.Avoy, L. R. 15 Eq. 55. 
 
 (e) Marshall v. Crutwell, L. R. 20 Eq. 
 328; and see 2 H. & M. 526. 
 
 (/; Devoy v. Devoy, 3 S. & G. 403; 
 and see Worthington v. Curtis, L. R. I 
 C. D. 423. 
 
 (</) Sd. Redington v. Kedington, 3 
 Ridgew. P. C. 179; sd. Kilpin v. Kilpin, 
 1 M. & K. 542. 
 
 (A) Essential, Soar v. Foster, 4 K. J. 
 162. 
 
 (i) Sd. Soar v. Foster, 1 58, sqq. 
 
 0) Grey v. Grey ; Redington v. Reding- 
 ton; Eilly. Ballard, 1 Vez. 77; Christy 
 
 v. Courteuay , 1 3 Bea. 9 6 ; Skeats v. Skeals, 
 2, Y. C. C. C. 9. 
 
 (*) Sd. Kilpin v. Kilpin, 1 M. & K. 
 542; si. Beckford v. Beckford, Lofft.490; 
 hut doubted in 4 K. & J. 157, and 
 opposed (in principle) to Wetherhy v. 
 Dixon, 19 Vez. 407, and to exp. Pye, 
 18 Vez. 140. 
 
 (/) Ebrand v. Dancer, 2 Ca. Ch. 26, 
 explained, 4 K. & J. 1 57-8, 2 Ca. Ch.26. 
 
 (m) See Currant v. Jago, 1 Coll. 261. 
 
 (n) Bennett v. Bennett, L. R. 10 C. D. 
 474-80. 
 
 (o) Intimated, 4 K. & J. 157-8. 
 
 (p) Tucker v. Burrow, 2 H. & M.526. 
 
 (q) 27 H. VIII, c. 10. 
 
 (r) 14 H. VIII, 4; Vin. Ab., Uses, 
 Y. a.; Garth v.Cotton, 3 Atk. 756; Dos 
 v. Whittingham, 4 Tau. 20, qualified by 
 Thrustout v. Peake, 1 Stra. 17, which 
 seems irreconcilable with the Statute 
 of Uses.
 
 RESULTING AND CONSTRUCTIVE USES AND TRUSTS. 327 
 
 if the circumstances (a) concur which would transfer the 
 legal estate to the beneficial. But this docs not hold if the 
 disposition be expressed to be to the use of the disponee (b). 
 Nor does it hold if the disposition be made for valuable 
 consideration, (whether pecuniary (c) or not (d), and how- 
 ever small (e), especially a subsequent Marriage (/)); nor 
 (it seems) if it be (g) made to a lawful (Ji) Wife (i), Child (/'), 
 Brother (k), Nephew (/), or perhaps other (m) Relative (u), 
 (unless a mere power of disposition be conferred (o)); nor 
 (perhaps) if the Crown be the disponor (p). Nor does it 
 hold if the subject be a Rent (q) or other profit (r) or 
 easement (r) ; nor if a tenure (5) or reversion (s) be reserved. 
 So, on a purchase in the Name of another, the legal estate 
 (if the formalities observed be sufficient) will pass to the 
 purchaser (t) rather than to the other, even (it has been 
 held) when the purchase is in the name of the purchaser's 
 wife (t). 
 
 (a) Stated where I discussed the (0 Roe v. Tranmarr; Harrison v. 
 
 Statute. Austin. 
 
 (6) Anon. And. 37, pi. 95. (m) Ward v. Sudman. 
 
 (c) Badmerin v. Fyke, 11 Mod. 377; (n) Essential, Smith v. Risley, Cro. 
 
 Fox's Case, 8 Co. 93b. Car. 529; Vin. Ab., Uses, H, 4-8, 10- 
 
 ((f) Ward v. Sudman, Moo. 683; 13, and asto relations -in-law H. 12; I, 
 
 Barker v. Keate, 1 Mod. 263, Vin. Ab. 1, 3; K. 2, 9, L.; and Bouldv. Wynston, 
 
 Uees, F. 7, 8. Harrison v. Austin, and Ward v. Sud- 
 
 (e) Badmerin v. Fyke; Barker v. 
 
 man. 
 
 Keate. (o) Goodtitler. Petto, 2 Barn. 10, 90, 
 
 (f) Doe v. Williams, 5 B. & Ad. 783; 142; Crossv. Faustenditch,Cro.Jnc. 180; 
 Doe v. Vavies, 2 M. & W. 503; Bould Mildmay's Case. 
 
 V. Wynston, Cro. Jac.168. (f») Sd.Atkinsv. Longvile, Cro. Jac.50. 
 
 (g) Harrison v. Austin, 3 Mod. 237. (q) M T. 14 H VIII, 5. 
 
 (A) Essential, Vin. Ab. Uses, K. 4, 5. (r) 14 H. VIII, 4; and see Vin. Ab. 
 
 (t) Mildmay's Ca^e, 1 Co. 175a. Uses, D. a. 
 
 (J) Doe v. Whittingham ; Scudamore (») Vin. Ab. Uses, F. 5, 6; contra, as 
 
 V. Crossing, 1 Mod. 175. to Trusts, sd. Sodman v. Warman, Free, 
 
 (fc) Roe v. Tranmarr, Willes, 682. 308. 
 
 w (0 Vin. Ab. Uses, F. 9.
 
 ( 328 ) 
 
 CHAPTER XL. 
 
 LIENS, (INCLUDING THE CONSOLIDATION OF MORTGAGES). 
 
 Liens depend- 
 ing on the 
 principle of 
 dependent 
 promises. 
 
 Vendor's Lien. 
 
 The same reasons which render the liability of one 
 contracting party dependent in certain cases on performance 
 by the other entitle the former, in similar cases, to resti- 
 tution against the latter upon his default. 
 
 On this ground a Vendor unpaid is entitled to what is 
 termed a "Lien" on the estate, that is, he is entitled to 
 require its restoration in case payment be not made, or, in 
 other words, to sue for foreclosure (a), whether the subject 
 be a tenement, (as, Land (b), or a (c) House,) or a Fund, 
 (as, a Debt due from an estate under an administration (d)) ; 
 and though it be a Copyhold (e) ; and though the purchase 
 money be payable by Instalments (/) ; and though the 
 contract provide that Security for the price shall be given 
 (g) and it be given accordingly (g); and even as regards a 
 part of the price which the vendor (being a trustee) 
 allowed the purchaser for fair (but not binding) reasons to 
 deduct (h) ; and even after Possession has been delivered («), 
 and the Legal estate conveyed (j) ; and though a Receipt 
 be contained (k) in or endorsed (/) on the conveyance. 
 But he is not entitled to such a lien on Corporeal Chattels 
 (m), except while he retains possession (»). Nor is he 
 
 (a) Wing v. Tottenham Ey. Co., (6) L. 
 R. 3 Ch. 740; Cosens v. Sognor, (6) L. 
 R. 1 Ch. 594 ; Phillips v. Silvester, (b) 
 L.R. 8 Ch. 173; Collins v. Collins, (No. 
 2) (6) 31 Bea. 346. 
 
 (b-d) Cases so marked. 
 
 (e) Winter v. Anson, (b) 3 Rus. 493. 
 
 (f) Collins v. Collins, (No. 2). 
 
 (g) Collins v. Collins, (No. 2); Trail 
 T. Ellis, 16 Bea. 350; Grant v. Mills, (b) 
 2 V. & B. 306. 
 
 (/«) Toole v. Adams, (c) 33 L. J. Ch. 
 693. 
 
 (i) Wing v. Tottenham Ry, Co. 
 
 (j) Cosens v. Bognor. 
 
 ( it) Sd. Dixon v. Gay/ere, (b) 1 D. G. 
 J 655, qualified by Muir v. Jolly, 26 
 Bea. 143. 
 
 (/) Wrout v. Dawes, (b) 25 Bea. 369; 
 Winter v. Anson, qualified by Muir v. 
 Jolly. The rights of a Sub-purchaser 
 who relies on the receipt will be dis- 
 cussed further on. 
 
 (m) Exp. Gwywie, 12 Vez. 379; Ben- 
 jamin on Sales (2nd Ed.), 658-9, 660-1, 
 662 in., qualified by id. 667, /. 5, 615, /. 
 1, 2, 702 /. 2. 
 
 (n) Benjamin 656, /. 1,2, 6S5, /. 3.
 
 LIENS, (INCLUDING CONSOLIDATION OF MORTGAGES). 329 
 
 entitled to a lien on either tenements or chattels if the 
 consideration stipulated for consists of a Security (a), (that 
 is, if I rightly understand the decision, he is not so entitled 
 if the payment is to be conditional on a specified Security 
 turning out effectual); nor if the consideration consists in 
 Covenants (b) (though contained in the purchase-deed (b)) ; 
 nor if the circumstances shew that a lien would be so 
 inconvenient as probably not to have been intended (c), 
 (unless countervailing circumstances exist {d)) f and there- 
 fore not generally (d) if the consideration consist of an 
 irredeemable (e) Annuity (/;; and not if the vendor accept 
 an express security on part of the property sold (g) ; nor if 
 he permits a purchaser whom he knows to be a trustee 
 to retain the purchase-money in his own hands (h). The 
 lien does not extend to Costs payable by a purchaser for the 
 assessing of the purchase-money (i); nor is a Legatee 
 whose Legacy is conditional on his conveying land to" the 
 Executor entitled to a lien for the legacy on the land 
 which he so conveys (j). But the exceptional circum- 
 stances which prevent the lien are not presumed (k). 
 
 On the same principle a Purchaser whose Purchase- Purchaser's 
 money has become a specific fund (as when it was paid into Abatement &c. 
 Court) is entitled to a lien on it for any sums which may 
 be coming to him from the vendor (/). 
 
 So a party entitled to Restitution is entitled to a lien on Purchaser's 
 the consideration which ought to be restored to him. Thus, Restitution, 
 a Purchaser rescinding is entitled to a lien on the subject 
 
 (a) Re Brentwood fc Co., L. R. 4 C. 
 D. 56. 
 
 (b) Clarke y. Hoyle, 3 Sim. 499. 
 
 (c) Dixon v. Gayfere, 1 D. G. J. 655, 
 (in principle overruling on this point 
 Winter v. L. Anson, 3 Kuss. 488); Exp. 
 Tarkes, 1 Gl. & J. 223. 
 
 (d) As in the cases cited in Dixon v. 
 Gayfere. 
 
 (e) Essential according to the reasons 
 given in Dixo?i v. Gayfere. 
 
 (f) Dixon v. Gayfere; E. Jersey v. 
 Briton Ferry tfc. Co., L. R. 7 Eq. 409. 
 
 (<7) Capper v. Spottiswoode, 1 Taml. 
 
 21 ; qualified as to a mortgage of another 
 estate in 2 Ba. & B. 515. 
 
 (A) While v. Wakefield, 7 Sim. 401. 
 
 (i) E. Ferrers v. Stafford fyc. R. Co., 
 L. R. 7 Eq. 409. . 
 
 (j) Barker v. Barker, L.R. 10Eq.439. 
 
 (fc) Mackreth v. Symmons, 15 Vez. 
 329; Hughes v. Kearney, I S. & L. 132. 
 See also, as to what will exclude the 
 lien, re Brentwood $c. Co., 36 L. T. N. S. 
 343. 
 
 (/) Thomas v. Buxton, L. R.8 Eq. 120; 
 Barker v. Cox, L. R. 4 C. D. 464. 
 
 42
 
 380 LIEN6, (INCLUDING CONSOLIDATION OF MORTGAGES). 
 
 Beneficiary's 
 Lien on Settled 
 Funds. 
 
 Wife's Lien on 
 property 
 passing by the 
 marriage. 
 
 Manager's Lien 
 on Business. 
 
 Trustee's Lien 
 on Interest of 
 beneficiary who 
 ■who has 
 reaped the 
 advantage of a 
 Breach of 
 Trust. 
 
 of sale for any purchase-money paid by him (a), (for exam- 
 ple his Deposit (»)) and a Sub-purchaser is entitled to a 
 similar lien on the lien of the original purchaser (c). 
 
 And, by an extension of this principle, a person interested 
 under a Settlement (d) in a fund which another beneficiary 
 has abstracted is entitled to a lien on the interest of the 
 latter thereunder for the compensation which he may be 
 entitled to recover from him (e), whether the abstraction 
 consisted in misappropriation (/), abuse of fiduciary powers 
 (g), or breach of a Covenant to settle (h); and whether the 
 wrongdoer was (i), (or was acting as ( j) Trustee, or not (k)) ; 
 but not if his beneficial interest was clothed with the Legal 
 estate (I); and not if he abstracted the Income only (m), 
 unless the trust required that it should pass through his 
 hands («); and not (it seems) against an interest which he 
 afterwards acquires from those interested in the fund (m). 
 
 So a Wife (entitled to compensation from her husband 
 for malversation of property settled on her marriage) is 
 entitled to a lien for it on property passing to him by the 
 marriage (0). 
 
 So the Manager of a Business (entitled to indemnification 
 from the owner for liabilities incurred respecting it) is 
 entitled to a lien for the same on the profits of the busi- 
 ness (p). 
 
 And even a Trustee who has permitted one of the bene- 
 ficiaries to have the trust fund, and who is consequently 
 
 (a) Rose v. Watson, 10 H. L. 672; 
 Mycoclc v. Beatson, L. R. 13 C. D. 384; 
 Turner v. Marriott, L. R 3 Eq. 744; 
 and see Parkinson v. Hanbury, L. R. 2 
 H. L. 1. 
 
 (6) Turner v. Marriott, L. R. 3 Eq. 
 744; Wythes v. Lee, 3 Drew. 396. 
 
 (c) Abtraman I. Co. v. Wickens, L. 
 R. 4 Ch. 101. 
 
 (d) Under the term "Settlement" I 
 here include any trust-disposition in 
 favour of several persons, whether tes- 
 tamentary or not. 
 
 (e) Morris v. Livie, (/.*.) I Y. C. C. 
 
 C. 380; Barnelt v. Sheffield, (f.i.) 1 D. G. 
 M. G. 371; Waring v. Coventry, (g.k.) 
 
 2 M. & K. 406; Priddy v. Rose, (h.k.) 
 
 3 Mer. 86. 
 
 (f-k) Cases so marked. 
 
 (/) Fox v. Buckley, L. R. 3 C. D. 508, 
 qualified by Waring v. Coventry. 
 
 (in) British Mutual I. Co, v. Smart, 
 L. R. 10 Ch. 576-7. 
 
 («) Life Association fyc.y. Siddall, (a9 
 to the set off) (but there were special 
 circumstances) (f.j.) 3 D. G. F. J. 58. 
 
 (p) Hastiev.Hastie, L.R.2 C. D.304. 
 
 (j>) Foxcroft v. Wood, 4 Rubs. 487.
 
 HENS, (INCLUDING CONSOLIDATION OF MORTGAGES). 331 
 
 bound to replace it, is entitled to a lien for its value on the 
 interest which that beneficiary derived under the same 
 settlement (a), and continues so after ceasing to be trustee 
 (b). But he is not thus entitled against the interest of a 
 Married Woman (c), though limited to her separate use (c) 
 at least if settled on her marriage (c). 
 
 And a mortgage to secure a sum in which the mortgagor 
 has a beneficial interest is held to affect that interest, so 
 that any deficiency which may exist after realization of the 
 security may be raised thereout (d). 
 
 The same principles which lead the law (when it exon- 
 erates an executor from liability to a Creditor) to confer on 
 the Creditor that lien upon the assets which the executor 
 would otherwise have had (e), leads it also (when it exon- 
 erates from the Claims of the beneficiaries a person who 
 for valuable consideration acquires trust property by a 
 transaction inconsistent with the trust) to appropriate that 
 consideration for the satisfaction of those claims (/), 
 whether the transaction be a sale (g), mortgage (h), &c, or 
 purchase (i), a loan secured (/) or unsecured (k), or a tem- 
 porary blending with his own monies honestly meant (I)', 
 and whether the wrongdoer who received the consideration 
 was the trustee (#») or other custodian (») of the fund, or a 
 broker (o) &c. employed by him, or one of the beneficiaries 
 (p), or some other person (q); but only if it was the trust 
 fund which was misapplied (r); and not if the wrongdoer 
 believed that he was acting within his authority and re- 
 places the trust fund (s). 
 
 (a) Rackham v. Siddall, 1 Macn. & G. 
 607; Barratlv. Wyatt, Bea. 442; Wil- 
 liams v. Allen, (No. 2), 32 Bea. 650; ac- 
 cordingly Aveline v. Melhuish, 2 D. G. 
 J. S. 228. 
 
 (6) Barralt v. Wyatt. 
 
 (c) Sail v. Punter, 5 Sim. 555. 
 
 (d) Smith v. Smith, 1 Y. & C. 338. 
 
 (e) Ante, p. 37-8. 
 
 (f) Phayre v. Peree, [i.m.p. [as to the 
 lease], q.) 3 Dow. 116; Murray v. Pin- 
 kett, (g.m.) 12 C. & F. 764; Pocock y. 
 
 Mortgage 
 extended to 
 the mortgagor's 
 interest in the 
 money. 
 
 Liens depend- 
 ing on the 
 principle of 
 Substitution. 
 Following of 
 trust-funds. 
 When permit- 
 ted. 
 
 Reddington, (g.k.) 5 Vez. 794; Hopper v. 
 Conyers, (ft.i.m.) L. R. 2 Eq. 549; Birds 
 v. Askey, (No. 2), (i.p.), 24 Bea. 618; 
 Taylor v. Plumer, (in.) 3 M. & S. 562; 
 Cooke re Strachan, (l.o.) L. R. 4 C. D. 
 123; Frith v. Cartland, (g.n.) 2 H. & M. 
 417; Pennell v. Defell, (k.m.) 4 D. G. M. 
 G. 372. 
 
 (g-q) Cases so marked. 
 
 (r) Perry v. Philips, 17 Vez. 173. 
 
 (*) O'Brien v. O'Brien, 1 Moll. 533. 

 
 332 LIENS, (including consolidation of mortgages). 
 
 How worked 
 out. 
 
 Liens for 
 expenditure. 
 
 Pursuant to this rule, the injured beneficiary may claim 
 the money or property for which the trust-fund was ex- 
 changed (a) (though its value has increased (b)) ; or a lien 
 (c) on the whole (d) of it (through the trust fund formed but 
 part of what was given for it (d)) ; or may claim his pro- 
 portion of funds of the same kind with which the trustee &c. 
 may have inextricably mixed the trust funds (e) ; and he may 
 treat that portion of the mass which remains after the 
 wrongdoer has abstracted part, as comprising the portion 
 originally belonging to the trust-fund (/). And even when 
 the trustee has inextricably blended it with his general 
 moneys, a subsequent appropriation by him of a specified 
 fund, or of a part (though undefined (g)) of specified funds, 
 to answer it, will be effectual (g); and the rights of the 
 injured beneficiary extend to property purchased &c. with 
 that which was purchased with the trust-fund (h), and so on 
 through any number of transformations (h) : but when the 
 trustee has lent the trust-monies and his own on a single 
 account, and sums have been from time to time repaid, (as, 
 when he paid both into the same Banking Account (*'),) the 
 'beneficiary is only entitled to that portion which is (by the 
 ordinary doctrine respecting the Appropriation of Payments) 
 ascertained to belong to the trust. 
 
 On this principle a Fiduciary or Partial owner who has 
 been compelled to expend money on behalf of the benefi- 
 ciaries or other partial owners is entitled to a lien for it on 
 their interests. 
 
 Hence, one authorized by law to represent the beneficial 
 owners, and incurring Costs in defending their interests, is 
 
 (a) Phayre v. Peree; Murray v. Pin- 
 kett • Pocock v. Reddington. 
 
 (6) Phayre v. Peree; Pocock v. Bed- 
 dington. 
 
 (c) Hopper v. Congers; Birds v. Askey. 
 
 (d) Frith v. Cartland. 
 
 («) Cooke r. Strachan; Frith v. Cart- 
 land. 
 
 (f) Murray v. Pinkett; Cooke r. Stra- 
 chan; Frith v. Cartland, p. 421. 
 
 (g) Middleton v. Pollock, (i.n.) 35 L. 
 T. N. S. 608. 
 
 (A) Hopper r. Congers; Frith v. Cart- 
 land. 
 (i) Pennell v. Deffell, 4 D. G. M. G. 372. 
 
 »
 
 LIENS, (INCLUDING CONSOLIDATION OF MORTGAGES). 333 
 
 entitled to a lien for reimbursement on those interests (a). 
 
 But this is confined to obligatory expenditure ; and there- 
 fore a Tenant-in-Common whose co-tenant has taken the 
 income of both is not entitled to a lien for reimbursement 
 on the share of the latter (b) ; nor is a Co-owner who has 
 advanced money to his companion to be expended in 
 improving the property entitled to a lien for any of it on his 
 companion's interest (c), though it has been so expended 
 (c) ; nor is a Co-owner who incurs liability respecting the 
 property entitled to lien on his companion's interest (d); 
 unless (in each case) they be Partners (e). 
 
 And so, a Life-tenant who has expended money on 
 improvement is not entitled to a lien for reimbursement on 
 a remainder-man's interest (/), though he expended it under 
 an order of the Court (/) at the making of which the 
 remainder-man was represented (g). 
 
 But a Mortgagee in possession is entitled to a lien for 
 improvements in some cases (h). 
 
 The same principle which subjects a third person taking Lien depending 
 advantage of a contract to the obligation imposed by it (?) on the principle 
 binds persons interested in property and taking advantage mere. 
 of the results of expenditure upon it to repay him who 
 incurs that expenditure, and entitles the latter to a lien for 
 the expenditure (_/), whether it was necessary for the pre- 
 servation of the property, (as, by Defending the Title (k), 
 
 (<z) Re Berkeley* Will, L. R. 10 Ch. $c, L. R. 7 C D. 192. 
 
 57. (0 Ante, Ch.XX, especially p. 175-6. 
 
 (6) British Mutual I. Co. v. Smart, L. O) Isaac v. Wall, L. R. 6 C. D. 706, 
 
 R. 10 Ch. 576-7, 579, overruling on this (which seems inconsistent with some of 
 
 point Carter v. Sanders, 2 Drew. 248. the dicta in St. Paul v. V. Dudley, 15 
 
 (c) Kay v. Johnston. 21 Bea. 536. Vez. 173); Todd v. Moorhouse, L. R. 19 
 
 (d) Exp. Young, 2 V. & B. 242. Eq. 69; Berkeley's Will, (as to the ex- 
 
 (e) See exp. Young and Kay v. John- penses of the purchase) L. R. 10 Ch. 57; 
 ston. Walters v. Woodbridge, L. R. 7 C. D. 
 
 (f)Floyerv. Banket, L. R. 8 Eq. 115; 504; Tipton Green $c. v. Tipton Moat 
 
 Berkeley's Will, L. R. 10 Ch. 57; Calde- SfC, L. R. 7 C. D. 192; Gill v. Downing, 
 
 cott v. Browne, 2 Hare. 144, in which L. R. 14 Eq. 316; Shearman v. British 
 
 a qualification is suggested. E. 4*c Co., L. R. 14 Eq.4; Hamilton v. 
 
 (g) Floyer v. Bankes. Denny, 1 Ba. & B. 199. 
 
 (ft) Tipton Green $c, r. Tipton Moat (i) Walters v. Woodbridge, (an ex- 
 treme case) ; Todd v. Moorhoust.
 
 334 LIENS, (including consolidation of mortgages). 
 
 Liens for debts. 
 Crown-debts. 
 
 Judgments. 
 
 by making Repairs (a), or by paying Calls on Shares (b) or 
 Premiums on a Policy (c)); or for its perpetuation, (as, by 
 Renewing a Lease (d) or by Purchasing the Reversion (<?)); 
 or for the discharge of duties which those who incurred the 
 expenditure owed towards the property (/) ; and whether 
 he who incurs the expenditure is a Tenant-in-Common (g), 
 Life-tenant (h), Fiduciary (/), or Mortgagee («'). So, a fidu- 
 ciary entitled to reimbursement for a payment made on 
 account of the trust fund is entitled to a lien for it (_/). 
 The question when a partial owner paying off an incum- 
 brance is to be treated as extinguishing it has been dis- 
 cussed as part of the doctrine of Constructive Trusts (k). 
 
 The Crown is entitled to a lien on the lands of its debtors 
 and accountants (/). 
 
 A Judgment-Creditor is entitled to have his debtor's 
 Chattels and Chattel interests sold under a fi fa (m), but 
 execution confers a lien on him only conditionally on his 
 seizing them while still in the bailiwick of the Sheriff to 
 whom the writ was directed (n). 
 
 A Judgment-&c. -creditor (o) is entitled to obtain in Exe- 
 cution ( p) the Hereditaments which (since the j udgment) the 
 debtor was owner of or entitled to dispose of as owner (q), 
 whether the debtor hold the legal estate or not (o) ; and to 
 a Charge on any interest in an Hereditament which (since 
 
 (a) Tipton Green fyc. v. Tipton Moat 
 Sj-c. ; see also Gill v. Downing and Shear- 
 man v. British E. Co, 
 
 (6) Todd v. Moorhouse. [E. Co. 
 
 (c) Gill v. Downing- Shearman v. B. 
 
 (d) Hamilton v. Denny. 
 
 (e) Isaac v. Wall. 
 
 (f) Berkeley's Will. 
 (<;) Hamilton v. Denny. 
 
 (h) Isaac v- Wall; Todd v. Moorhouse. 
 
 (i) Tipton Green Sfc. y. Tipton Moat 
 SfC ; Gill v. Downing; Shearman v. B. E. 
 Co. 
 
 (J) Butler v. Cumpston, L. R. 7 Eq. 16. 
 
 (*) Ante, p. 323 (/)— 324 (e). 
 
 (0 13 El. c. 4; 6 Geo. IV, c. 105, s. 
 13; 6 Geo. IV, c. 106, s. 7. 
 
 (m) Lewin on Trusts (5th Ed.), 557, 
 
 558, and (/); preserved as to Ireland, 
 13 & 14 Vic,c. 29, s. 10. 
 
 (n) Exp. Williams, L. R. 7 Ch. 314; 
 see 8 C. D. 330. 
 
 (o) For what is included under 
 the " &c." see 1 & 2 Vic, c. 1 10, s. 18, 
 21,22; 23 & 24 Vic , c. 38, s. 4; 27 & 
 28 Vic, o. 1 12, s. 1 ; and as to Ireland, 
 13 & 14, Vic, c. 29, s 6; 3 & 4 Vic, 
 0. 105, s. 27, 30. 
 
 (p) As to what constitutes Execu- 
 tion, see Evans r. Watkins, L. R. 13 
 C. D. 252; Anglo-Italian Bk. v. Davies, 
 L. R. 9 C. D. 275; r. Rush, L. R. 
 10 Eq. 442; r. Duke of Newcastle, L. R. 
 8 Eq. 700. 
 
 (?) 1 & 2 Vic, c. 110, s. 11; 3&4 
 Vic, C. 105, s. 19.
 
 LIENS, (INCLUDING CONSOLIDATION OF MORTGAGES). 335 
 
 the judgment) the debtor was the owner of, or entitled 
 without the consent of any other person to acquire by 
 making a disposition under a power, or by barring an 
 entail (a); and to an Order charging the interest of the 
 debtor in any Stock &c. (b). These rules apply whatever 
 the date of the judgment (c) ; but not (as regards English 
 judgments entered since 29th July 1864 (d)) until the here- 
 ditaments have been delivered in execution (d); and not 
 after arrest of the debtor at the creditor's suit (e) ; and not 
 (as regards Irish judgments entered up between 1st August 
 1849 and 15th July 1850 (/)) until the writ has been deli- 
 vered to the Sheriff (/) unless the judgment was for over 
 £ l 5° (/)"> an d not to Irish judgments entered up since 15th 
 July 1850 (g); nor to tenements in Ireland purchased after 
 that date (h). But an Irish Judgment-&c. -creditor is entitled 
 to register an affidavit that he believes his debtor to have 
 (or to be entitled without the consent of any person to dis- 
 pose of) a beneficial interest in specified hereditaments, and 
 thereupon the creditor becomes Mortgagee (i) thereof (j). 
 
 Other incumbrances have been imposed by the Succes- Succession 
 sion Duty Act, (which is too elaborate for outline treatment, d . ut 7 and otljer 
 and too well illustrated in a recent text-book (I) to need it), 
 and by other Statutes (*»). 
 
 But a Bankruptcy-trustee seems not to have a lien on the Bankruptcy- 
 
 Trustee's Lien 
 
 estate or on the documents relating to it for his expenses (»). 
 
 A Solicitor is entitled to a lien for all costs incurred by Solicitor's 
 his client upon all documents prepared by him for that iens ' 
 
 (a) 1 & 2 Vic, c. 110, s. 13; 27 & 
 28 Vic, c 1 12, s. 4; as to Ireland, 3 & 
 4 Vic, c 105, s. 22. 
 
 (6) 1 & 2 Vic, c. 110, 8. 14; 3 & 4 
 Vic.c 82, s. 1. 
 
 (c) 1 & 2 Vic, c 110, 3. 11, 13, 14. 
 
 (d) 27 & 28 Vic, c 112, s. 1 ; Guest 
 V. Cotebridge R. Co., L. R. 6 Eq. 619. 
 
 («) 1 & 2 Vice 110, s. 16. 
 (f) 12 & 13 Vic, c. 95. 
 (3) 13 & 14 Vic, o. 29, B. 1. 
 
 (h) 13 & 14 Vic, c 29, s. 2. 
 
 (i) 13 & 14 Vic, c. 29, s. 6, 7. 
 
 (j) Eyre v. McDowell, 9 H. L. 619. 
 
 (Jfc) 16 & 17 Vic, o. 51. 
 
 (/) Hanson on Probate &c. Duties 
 (Stevens & Haynes, 1870). 
 
 (m) 2 Dav. Conv. (3rd Ed.). 752 sqq. 
 
 (n) Bankruptcy Rules of 1870, r. 49; 
 exp. Graham, 2 M. D. D. G. 290; exp. 
 Yalden v. Austin, L. R. 4 C. D. 129.
 
 336 LIENS, (including consolidation of mortgages). 
 
 client (a), and upon all documents which his client commits 
 to his custody (b) and permits to remain there after the con- 
 clusion of the matter for which they were so committed (c) ; 
 and the lien extends to the purchase money received from 
 realization of the property (d) ; and prevails though one of 
 the members of the firm of solicitors (who is also the client) 
 becomes bankrupt (e) ; but ceases if the solicitor deserts the 
 client (/), or becomes custodian of the documents in a 
 different character from that of solicitor (g). 
 
 A Solicitor by whom property has been recovered or 
 preserved in legal proceedings is entitled to a lien thereon 
 for his taxed Costs (h), though the client be an Infant (?'); 
 or be a Married Woman to whose separate use the pro- 
 perty has been settled (even with restraint on anticipation 
 
 Consolidation A Creditor may be thought to be entitled in strict justice 
 
 of Mortgages. to mortgage-rights over all the property of his debtor; but. 
 such a rule would so hamper the dealings of the latter that 
 our law has only adopted it to the limited extent already 
 stated, and in the rule now to be mentioned, — a rule which 
 marvellously exemplifies those aberrations of intellect with 
 which legal studies make us but too familiar. One would 
 think that if there were any debt from which the debtor's 
 property should be unburthened it would be that for which 
 the creditor has accepted a specific security, and that the 
 remedy of such a creditor for any deficiency should not be 
 greater than that of a creditor who has lent money on the 
 
 (a) Exp. Yalden v. Austen, L. R. 4 C. S. T. Co v. Chapman, L. R. 1 C. P. D. 
 
 D. 129; r. Messenger e. Calvert, L. R 3C. 771. 
 
 D. 317; r. Jarman, L. R. 4 C. D. 835; («) Re Moss, L. R. 2 Eq. 345. 
 
 Nevoingtim L. B. v. Eldridge, L. R. 12 (f) Cases cited in L. R. 2 Eq. 347. 
 
 C. D. 349, qualified by Lawrence v. (g) Sheffield v. Eden, L. R. 10 CD. 
 
 Fletcher, L. R. 12 C. D. 858, and by 291. 
 
 Simmonds v. Great E. R. Co., L. R. 3 Ch. (h) 23 & 24 Vic, c. 127, s. 18; Bui- 
 
 797, and by Balch v. Symes, T. & R. 87. ley v. Bulky, L. R 8 C. D. 479 ; Pilchtr 
 
 (6) Oolmer v. Ede, 4 L. J. Ch. 184. V. Arden r. Brook, L. R. 7 C. D. 318. 
 
 (c) Exp. Pemberton, 11 Vez. 282. (t) Pritchard v. Roberts, L. R. 17 Eq. 
 
 (d) Re Messenger v. Calvert; General 222. 
 
 0) Re Keane, L R. 12 Eq. 115.
 
 LIEN.S, (INCLUDING CONSOLIDATION OF MORTGAGES). 337 
 
 general credit of the assets. But it is customary to insert in 
 contracts stringent clauses which are not intended to be 
 acted (a) on ; and mortgages, in particular, are generally so 
 framed as to entitle the mortgagee to foreclose if the debt 
 be not paid on a specified day; and, though the courts 
 allow redemption afterwards (b), they do so as a concession. 
 Now it is a maxim that "he who seeks equity must do 
 equity (<)'" and therefore, in Lord Hardwicke's time, 
 the Courts refused to allow this concession to the mortgagor 
 except on the terms that he should also pay all other 
 mortgage-debts payable by him to the mortgagee (d). 
 It was next established that he who refrains from doing 
 equity infringes thereby upon the rights of another (e), and 
 therefore that if the Mortgagor can only redeem by satisfy- 
 ing other debts than that immediately in question it must 
 be because the mortgagee has a right to hold the mortgaged 
 property as security for both. The injustice produced by 
 this doctrine will appear when I come to treat of priorities. 
 Meanwhile I will state the rule in its present form. 
 
 Every security on property operates to secure (in addition 
 to the stipulated amount) all other sums for which the same 
 mortgagor (&c.) has given (/), is giving (g), or may after- 
 wards give (/), another security which may then or after- 
 wards be held by the same person, whether both were 
 originally held by the same person or not (h) ; and whether 
 they are held by the incumbrancer himself, or by 
 Trustees for him (i) (at least if the mortgagor was 
 aware of the trusts (i)) ; and though one (j) or both (/) of 
 
 (a) See ante p. 294-309. (h~) Cracknall v. Jansr.n, 40 L. T. N. 
 
 (6) See ante p. 316 (e). S. 640; Neeve v. Pennell, 2 H. & M. 
 
 (c) See Hanson v. Keating, 4 Hare 4. 170; Selby v. Pom/ret, 3 D.G. F.J. 595; 
 
 («f) See Beevor v. Luck, L. R. 4 Eq. Beevor v. Luck, L. R. 4 Eq. 545; Ticeedale 
 
 544-5. v. Tweedale, 23 Bea. 341. But in all 
 
 (<•) 4 Hare 5-7, and cases cited in p. these cases the incumbrancer who con- 
 
 7 ; Gibson v. Goldsmid, 5 D. G. M. G. solidated his securities was original 
 
 763, 765-8. mortgagee under at least one of them. 
 
 (f) Watts v.Symes,l D. G. M. G. 240. (*) Tassell v. Smith, 2 D. G. J. 713. 
 
 (g) Farebrother v. Wodehouse, 23 (j) Cracknall v. Janson, (in ■which it 
 Bea. 18. appears from 39 L. T. N. S. 34 a), that 
 
 43
 
 338 LIENS, (including consolidation of mortgages.) 
 
 the incumbrances was not (strictly) a mortgage, but a 
 trust for sale (a) or other security (k); and though neither 
 was accompanied by the Legal estate (/>); and though the 
 incumbrancer has sold either of the properties under a power 
 conferred by his security (c) ; and though the mortgagor 
 became bankrupt before the incumbrancer bought in the 
 second incumbrance (d)\ and though the second incum- 
 brance was given only by a surety (e) ; or was acquired only 
 by exercising a right of redemption (/) ; but only if both 
 incumbrances ;were created by the same person (g), (this 
 being essential even where the subjects of them were shares 
 in the same property (h)); and only as regards such part 
 of or interest in the property as was originally mortgaged 
 by the same person (i) ; and not if the legal estate revests 
 without reconveyance by force of the original contract, (as 
 in case of a Bailment of title deeds to secure repayment at 
 any time (j) ; nor if the incumbrance is redeemed at the time 
 appointed (k), nor if the debt to which the incumbrance is 
 sought to be extended is itself unsecured (/), or secured 
 only by the charge which the law (m) gives to judgment 
 Creditors (n) ; nor if the incumbrance which is sought 
 to he extended was cleared off before that to which it 
 is sought to be extended had been effectually made 
 
 each mortgage was extended to all the Luck, L. R. 4 Eq. 545; as to which 
 
 Slims, a feature which also occured in latter see 28 W. K. 773.6. 
 
 the other cases); Tioeedale v. Tiveedale, (/i) Thorveycroft v. Crockett. 
 
 23 Bea. 341. ' (i) Fisher on Mortgages, (2nd Ed.) 
 
 (a) Watts v. Symes, 1 D. G. M. G. page 684. 
 
 240, in which the latter security had 0) Crickmore v. Freeston, L. J. 40 
 
 this form. Ch. 137. 
 
 (b) Watts v. Symes. (k) Cummins v. Fletcher, 28 W. R. 
 
 (c) Cracknall v. Janson, L. R. 1 1 C.D. 772, Sd. Chesworlh v. Hunt, L. R. 5 
 1 ; Selby v. Pomfret, 3 D. G. F. J. 595. Q. B. D. 27 J , /. 15-17. 
 
 (d) Selby v. Pomfret. (/) Talbot v. Frere, L. R. 9 C. D. 568, 
 
 (e) Tassell v. Smith, 2 D. G. J. 713. overruling re Hastlford's estate L. R. 13 
 
 (f) Bratlley v. Riches, 39 L. T. 78. Eq. 327 Spalding v. Thomson, 26 Bea. 
 ((/) Thorneycroft v. Crockett, 2 H. L. 637 and Exp. National Bk. L. R. 14 
 
 239; Cummins v. Fletcher, (2d. point) Eq. 507. 
 
 28 W. R. 772; Whitworth v. Rhodes, 20 (in) 1 & 2 Vic c. 110, s. 13. 
 L. J. Ch. 105; White v. Hillacre, 3 Y. (n) Ford v. Tynle, L. J. 41 Ch. 758, 
 & C. 597, as explained in Beevor v. which also seems to overrule Spalding 
 
 V. Thompsom.
 
 LIENS, (INCLUDING CONSOLIDATION OF MORTGAGES.) 339 
 
 (a), even though the satisfied incumbrancer retains the legal 
 estate {a) and title deeds (a); nor (it seems) if the right 
 arises during a suit to which the person affected by it 
 is a party (b) (i). 
 
 The holder of the incumbrances can enforce this equity 
 though the opposite party be not seeking to redeem him (c). 
 
 An incumbrancer is entitled to extend his incumbrance 
 after the death of his mortgagor to any sum owing to him 
 by the deceased so far as that sum is payable by the person 
 against whom he so extends it (d) but not further (e), and 
 therefore only against representatives of the deceased who 
 have assets applicable to it (e). 
 
 Finally a Banker is entitled to a general Lien on all Banker's Lien, 
 securities deposited with him (/). 
 
 (i) As to the instances in which the right to consolidate holds against those 
 who derive under the mortgagor, see below in next Chapter. 
 
 (a) Brecon v. Seymour, 26 Bea. 548. (e) Irby v. Irby, 22 Bea. 217; Talbot 
 
 (6) See Matthews v. Antrobus, 49 L. v. Frere L. R. 9 CD. 568. 
 
 J. Ch. 80 and the discussions in this (f) London Chartered Bk. v. White, L. 
 
 work of the doctrines of Lis pendens and R. 4 Ap. 413, modified by Bower v. 
 
 Fraudulent Preference. Foreign fyc. Co., 22 W. R. 740; Leese 
 
 (c) Watts v. Symes; Selby v. Pomfret; v. Martin, L. R. 17 Eq. 224, and as to 
 overruling dictum in 23 Bea. 24. trust accounts by Kingston v. Gross, 
 
 (d) Holfe v. Chester, 20 Bea. 610; L. R. 6 Ch. 632. 
 Thomas v. Thomas, 22 Bea. 341.
 
 ( 340 ) 
 
 Inconsistent 
 claims, when 
 equally- 
 favoured. 
 
 Inconsistent 
 claims, when 
 unequally 
 favoured. 
 Generally. 
 
 CHAPTER XLI. 
 
 PRIORITIES IN GENERAL, (INCLUDING LIS PENDENS.) 
 
 It might be supposed that when two persons claim the 
 same property under inconsistent titles their claims would 
 be regarded with equal favour; and this is the case in the 
 only instances in which no reason can be suggested for 
 preferring the one to the other, for inconsistent dispositions 
 in different Wills by the same Testator are void (a) ; and 
 inconsistent dispositions in the same Will (b) or (it has been 
 held) by different contemporaneous Deeds (c) operate each 
 on a share of the property; and an Annuity under a 
 will is not preferred to a Legacy when both are charged on 
 the same land, though the annuity has powers of distress 
 and entry incident to it by implication (d). 
 
 In every other case the law treats some circumstances, 
 (often trivial ones,) as giving to the one party a better title 
 than the other. This is the case when both titles are incon- 
 sistent from their commencement, — a subject already (e) 
 discussed; — and it is the case when the two titles (although 
 the same down to a certain point) afterwards diverge, — (as, 
 when the owner of property sells to A, and then, repre- 
 senting himself as still owner, sells it to B. In such cases 
 the property is transferred by the earlier disposition (assu- 
 ming that not to be invalid for any of the causes already 
 mentioned (/)), and when the later one is made the dis- 
 ponor has nothing for it to operate on ; but, whenever the 
 title of the earlier disponee is considered less just (§■), or less 
 
 (a) Chipps v. E. Anglesey, 7 B. P. C 
 
 443. [304. 
 
 (6) Authorities cited in L. R. 6 C. P. 
 
 (c) Hopgoodv. Ernest, rvd.on another 
 point in 3 D. G. J. S. 116, 13 W. R. 
 1004. 
 
 (d) Roper v. Roper, L. R. 3 C. D. 714. 
 
 (e) Ante p. 23-32. 
 
 (f) Ante pp. 94-151, 178-184, 191- 
 223, 246-293. 
 
 (g) As to what Country it is by whose 
 law priorities respecting chattels are 
 regulated see Hooper v. Gumm, L. R. 
 2 Ch. 282.
 
 PRIORITIES IN GENERAL, (INCLUDING LIS PENDENS.) 341 
 
 accordant with the public welfare, than that of the later 
 one, the law, (effecting what the Disponor could not do,) 
 transfers the property to the latter from the former (a). It, 
 however, any portion of the Ownership comprised in the 
 earlier disposition was excluded from the later it continues 
 in the earlier disponee; (and, consequently, a mortgage by 
 one who has previously sold the property, made under 
 circumstances entitling the mortgagee to priority, leaves 
 the property still in the purchaser subject to the mortgage;) 
 and, of course, one of two contemporaneous disponees is 
 entitled to priority over the other under the same circum- 
 stances under which he would be so if he were later in time. 
 
 But a Transferee, entitled to priority over another, is not 
 therefore entitled to priority over every disposition to 
 which that other would be preferred. For example, 
 Bankruptcy Creditors, taking priority over a disposition, 
 are not therefore entitled to priority over a later disposition 
 which, while effectual against them, would, but for the 
 bankruptcy, have been postponed to the earlier one (b). 
 
 Such are the general principles of the doctrine of 
 Priority. Before proceeding to a consideration of its parti- 
 cular rules, I will prefix a statement of the exceptions 
 which are common to them all. 
 
 Force or Fraud, exercised in bringing about the circum- 
 stances by which priority would otherwise be obtained, 
 would probably prevent that priority (c) ; but it has been 
 held that the forcible or fraudulent acquisition of Title 
 Deeds will not induce a court of equity to compel their 
 production when the party who so acquired them would, 
 
 Reversal of 
 Priorities. 
 
 Exceptions 
 common to all 
 the Rules 
 respecting 
 Priorities. 
 
 Force and 
 Fraud. 
 
 (a) Dolphin v. Aylward, L. R. 4 H. 
 L. 500 /. 1-4. 
 
 (6) Ex. Payne r. Cross, L. R. 11 C. 
 D. 553, Leaman r. Barrand, L. R. 4 C. 
 D. 23. 
 
 (c) See the remarks in Heath v. 
 Crealock, L. R 10 C. D. 33 fin (which 
 however were meant to apply to a case 
 in which the disposition itself was frau- 
 dulent on the part of the vendor); Carter 
 
 V. Carter, 3 K. & J. 636-7, (the decision 
 in which was overruled in Pitcher v. 
 Rawlins, L. R. 7 Ch. 259); and the 
 doubtful dictum in Edmunds v. Povey, 1 
 Vern. 187. In Mocatta v. Bell, 24 
 Bea. 585, the equities were not equal, 
 and the expressions in Gilbert's Lex. 
 Pr. 248, and Doct. and St'. 164, are too 
 general to touch this case.
 
 342 PRIORITIES IN GENERAL, (INCLUDING LIS PENDENS.) 
 
 (as having purchased for value and in good faith the 
 property evidenced by them without notice of the interest 
 of the party seeking their production,) be entitled, if he 
 had obtained them fairly, to refuse to produce them (a). 
 Lis pendens. Again, a Litigant establishing his title to some property 
 
 or advantage cannot be (b) postponed by a disposition 
 which his adversary has made since the commencement (c) 
 but before the close (d) of the litigation (i); whether that 
 litigation be an Action (e) or a Special Case (/) (appeared 
 to (/)); and whether its object be to affect the property (e), 
 or to perpetuate Testimony concerning it (g) ; and even 
 though the litigant be Defendant in the Suit (h)\ and even 
 as regards his lien for Costs (i) ; and though the declaration 
 of his rights be Interlocutory (J); and though the Legal 
 estate be transferred by the disposition and untouched by 
 the decree (k). But the Doctrine is confined to claims 
 submitted for adjudication in the litigation in question (/) ; 
 and does not extend to Collusive suits (in); nor to 
 Bankruptcies (n), (n) or Windings up (o); nor does it 
 
 (I) This is expressed hy the maxim "lite pendente nil movetur". I have 
 already (p) had to consider this doctrine. I now omit several decisions by 
 which purchasers who had bo notice of a suit were therefore (under special 
 circumstances') exempted from its operation, but which preceded Bellamy v. 
 Sabine, and seem to me inconsistent with its principle. " Lis pendens" has been 
 held to mean "a Suit whose object would be defeated by a sale of the 
 property" (g). 
 
 (II) But the principle seems to hold against one acquiring from a creditor 
 of the Bankrupt a right to prove in the Bankruptcy (r). 
 
 (a) Cases cited in 2 Vern. 169, (of (g) Sugd. V. P. 758 (n). 
 
 which only Fagg's case seems to be (/«) Tyler v. Thomas, 25 Bea. 47. 
 
 reported.) (t) Sugd. V. P. 759 ; (s t) and see (r). 
 
 (6) Bellamy v. Sabine, 1 D. G. J. 566; (j) See Sugd. V P. 760 (6). 
 
 Ante, p. 73-4; Fisher on Mortgages (fc) As in most of the cases. 
 
 (2d. Ed.) 1158, 1160-1167; Sugd. V. {I) Bellamy v. Sabine. 
 
 P. (14th ed.) 758 (g). (m) Culpeper v. Aston, 2 Ch. Ca. 116, 
 
 (c) See Sugd. V. P. 758 (it); modified 223. 
 
 by Norris v. L. D. Stuart, 16 Bea. 359. (w) Fisher, par. 1 167. 
 
 And see Fisher par: 1 165. (o) Lindley on Partnership (4th Ed.) 
 
 (d) Kinsman v. Kinsman, 1 R. & M. 1270, citing 30-1 Vic. C. 47, which, 
 617; Fisher par. 1163; Nortcliffe v. however, merely repeals the preceding 
 Warburton, 8 Jur. N. S. 854; Sugd. Statute on the subject and remits the 
 V. P. 760 (6); Brew v. E. Norbury, 3 matter to judiciary law. 
 
 J. & L. 267 ; Bellamy v. Sabine. (p) Ante p. 73-4. 
 
 (e) As in almost all the cases. (5) Plant v. Pearman, 20 W. R. 314. 
 
 (f) 13-14 Vic. c. 35, (Eng.) s 17; (r) Rogers v. Bowles, Buck, 490. 
 30-1 Vic. c. 44, (Ir.)*. 127.
 
 PRIORITIES IN GENERAL, (INCLUDING LIS PENDENS.) 343 
 
 prevent the postponement of general Creditors by a 
 disposition made by an Executor during an Administration 
 suit (i) (a); nor did it, (even when it applied to Windings- 
 up,) prevent their postponement to a disposition by a 
 Shareholder (b); nor does it apply if the claim is raised by 
 an amendment which, after the making of the disposition, 
 has been made in the pleadings (c); nor if the litigant has 
 long allowed the litigation to lie dormant (d); nor if the 
 disponee was entitled to acquire priority before the litigation 
 commenced (e); nor, (as regards property in which priority 
 can be gained by registration,) if the disposition has been 
 registered (/), (unless the claim of the litigant arose under a 
 document previously registered) ; nor if the interest of him 
 who relies on this doctrine was, by some settlement &c. 
 under which both litigants claim made liable to be 
 displaced by the other (g); nor even when it is by law (h) 
 made thus liable, (as, when an interest acquired gratuitously 
 is made liable to be displaced by a subsequent disposition 
 for value (h)) ; nor if the disposition was to "a Purchaser 
 or Mortgagee "(/), unless either the litigation was known (i) 
 to the disponee or to his agent, or a memorandum of it was 
 Registered (?) (n) or Re-registered (•/) as prescribed (/) 
 
 (i) The appointment of a receiver, or an Injunction against dealing with 
 the property, seems, however to bind a purchaser (a). 
 
 (n) Chancery Actions seem to be the only ones whose registration is effectual, 
 for the act requires that the name of the Court of" Equity" shall be mentioned 
 on the Register (in). The Court may in proper cases order that a Registration 
 be vacated (n). 
 
 (a) Berry v. Gibbons, L. R. 8 Ch. 747, Vic. c 15. (Palatinates) s. 3; 13-14 
 which compare with Drew v. E. Nor- Vic. c. 29 (Ir.) s. 5; 7-8 Vic. c. 90 
 bury, 3 J. & L. 267, 282, 293, 305. (Ir.) s. 10; Sugd. V. P. 761 (e), 543 
 
 (6) Barned's Bg. Co. L. R. 2 Ch. (k). As to the necessity of express 
 
 (c) Sugd. V. P. 759 (w). [171. notice Sugd. V. P. 542, 761, (c); 
 
 (rf) Sugd. V. P. 758 (o). Osborn on Judgments in Ireland 43. 
 
 (e) See Blackwood v. London C. Bk. (j) Authorities in preceding note; 
 L. R. 5 P. C. 92. and 11-12 Vic. c. 120 (Jr.) s. 12; 34-5 
 
 (/) Said 19 Vez. 439; but qu. Vic. c. 72. (Ir.) s. 2; Sugd. V. P. 
 whether this can be supported since 542-3; and as to recorded land in 
 Bellamu v. Sabine. Ireland, 28-9 Vic. c. 88, s. 42-3. 
 
 (g) Said Sugd. V. P. 759, pi. 14. (*) Berry v. •Gibbons, L. R. 8 Ch. 750. 
 
 (fi) Melcalfv. Pulvertoft, 1 V. & B. (7) Authorities cited in n. (j). 
 180. And see Beyfus v. Bullock, L. R. («) 23-4 Vic. c. 115, (E.) s. 2; 30-1 
 7 Eq.. 391. As to the circumstances Vic. c. 47, (E.) s. 2; 34-5 Vic. c. 72, 
 under which such an interest is thus (1.) s. 21; Pooley v. Bosanquet, L. R. 7 
 affected see below, especially when I C. D. 54 1 ; Clutlon v. Lee, L. R. 7 C. 
 refer to St. 27 El. c. 4. D. 541. 
 
 (i) 2-3 Vic. c. 11 (E.) s. 7; 18-19
 
 344 PRIORITIES IN GENERAL, (INCLUDING LIS PENDENS.) 
 
 within 5 years (but as regards dispositions, of tenements in 
 Ireland made before ist November, 1844, 20 years (a)) before 
 the disposition, or the disposition was made before the 4th 
 June, 1839 (/) (Eng.) or 15th July, 1850 (i) (Ir.). But of 
 course registration cannot strengthen the litigant's right (b). 
 Practically, therefore, this doctrine, (apart from regis- 
 tration) seems to be that a Lis pendens is equivalent to 
 Notice (c). 
 Re acquisition Again, one whose property is fraudulently, or in breach 
 
 ^y ius ee, f trust, so disposed as to entitle the disponee to priority, 
 but is afterwards reacquired by the disponor, is restored to 
 his former interest (d). 
 Act done after And, finally, an act done after a fund has become distri- 
 
 fund becomes butable cannot (it seems) alter the priorities of incum- 
 distnbutable. v ' r 
 
 brances upon it (e). 
 
 (a) 7-8 Vic. 90, s. 10. (d) Barrow's Case L. R. C. D. 445; 
 
 (b) Bull v. Hutchens, 52 Bea. 615. and see L. R. 1 1 C. D. 334 /. 22-30. 
 
 (c) As to the effect of Notice in (e) Calisher v. Forbes, L. R. 7 Ch. 
 postponing a Legal estate see below. 109.
 
 ( 345 ) 
 
 CHAPTER XLII. 
 
 PRIORITY BY PRECEDENCE IN TIME. 
 
 The simple rule that Priority is conferred by Precedence Statement of 
 in Time (a), that is, that a Dealing with property by, r^ 00 '™ 6 * 
 or transmission of it from, a person, cannot displace an 
 interest which previously passed from him, or to which he 
 was never entitled, prevails (b), though (when the later 
 disposition &c. does not affect the legal estate) it was made 
 for value to a person without Notice of the preceding 
 interest (c) ; and though (when it does not affect the legal 
 estate) the party could by transferring that estate have 
 barred the preceding interest (d) ; and though the preceding 
 interest be merely a right to set aside a disposition for a 
 default by the disponor (e) or for a reason of which he had 
 notice (/); and though (when the subject is an ordinary 
 Chose in action (g)) the preceding interest is merely the right 
 of the Debtor &c. to credit for Payment or part payment 
 (h) ; and though the preceding interest is merely an inchoate 
 right, (as, that of a Debtor to credit for such Payments as 
 he may make after (i) and without notice of the disposition 
 (/), or that of a Trustee to a Lien for such money as he may 
 expend after (j) and without notice of it (k), or that of a 
 Beneficiary to a Lien for any debt which the trustee may 
 afterwards incur to the trust fund (I), or that of an Incum- 
 
 (a) See this rule well explained in ell's Mortgage); D. v. C. 
 
 Cory v. Eyre, 1 D. G. J. S. 167-8, (f) P. v. C, which compare with 
 
 approved Dixon v. Mnckhston, L. R. 8 Phillips v. Phillips, 31 L. J. Ch. 326b 
 
 Ch. 1 55. / 25-33. 
 
 (6) Ante p. 340(f). (g) For definition of this term see 
 
 (c) Thome v.Holdsworth, L. R. 7 Eq. ante, p. 3. 
 
 139, and cases there cited. Barnard v. (h) Below p. 348 (e)— 349 (c). 
 
 Hunter, 2 Jur. N. S. 1213; Cockell v. (i) Cases cited in Lewin on Trusts, 
 
 Taylor, 15 Bea. 117-120; Daubeny v. 497 (»)• 
 
 Cockburn, 1 Mer. 638 ; Parker v. Clarke, (j) Prosser v. Phipps, L. R. 1 6 Eq. 
 
 30 Bea. 54. 88, in which, however, the trustee had 
 
 (d) Shropshire 8fc. Co. v. Reg. L. R. the Legal estate. 
 
 7 H. L. 496. (i) Sd. Prosser v. Phipps. 
 
 (e) C. v. T. (which qu as to Cock- (/) Cases cited in Lewin Tr. 497 («). 44
 
 346 
 
 PRIORITY BY PRECEDENCE IN TIME. 
 
 Exception. 
 
 Qualification. 
 
 Consequences 
 of the Doctrine. 
 Creditor's Lien 
 preferred to 
 Legacy. 
 
 brancer to extend his Incumbrance (under the doctrine 
 already (a) discussed) to other property on which he may 
 afterwards (b) acquire an incumbrance) ; and though (when 
 the preceding interest was a Mortgage) the subsequent deal- 
 ing was intended to improve the value of the property (c) ; 
 and though that dealing was sanctioned by the Court (c) ; and 
 though the subsequent transaction is a disposition under a 
 Power by which the preceding interest was overridden (d), 
 or is a consent to such disposition (d), (so that a Sale of the 
 fee-simple made by a Life-tenant under the authority of a 
 proviso in the settlement is ineffectual against a previous 
 disponee of his life interest) ; and (in some cases) though 
 the contract by which the preceding interest was parted 
 with did not literally include it (d) ; and (generally) though 
 the common disponor was Tenant-in-tail, and the later 
 disposition only was adequate to bar the Entail (d) ; and 
 though (when the later transaction was a transmission, as, 
 by Bankruptcy (e), by Judgment (/), or even (in Ireland) by 
 Judgment-Mortgage (g),) it carried the Legal while the 
 earlier was confined to the beneficial interest. But the 
 rule does not apply if the earlier interest was a charge 
 imposed by law on the party's property in general, while 
 the later transaction dealt with specified property (h). 
 
 And it is trenched upon by the doctrine (i) that the 
 release of an incumbrance lets in subsequent incum- 
 brances. 
 
 In consequence of this principle the Creditor of a 
 deceased person is entitled to priority (in respect of his 
 lien (/) on the assets (k) over one who derives under the 
 
 (a) Ante, p. 336-9. 
 
 (6) See discussion of these points 
 further on in this chapter. 
 
 (c) Regent's Canal Sfc. Co. v. Grissell, 
 L. R. 3 C. D. 419-21. 
 
 (<f) See these points discussed further 
 on in this Chapter 
 
 («) 32-3 Vic, c. 71 (E.), s. 15 (1). 
 As to the older Acts and the Irish 
 Acts, see Yate Lee on Bankruptcy, 
 72-77. 
 
 (f) Wltitworth v. Gaugain, 1 Ph. 728; 
 Fisher, Mort. par. 1291-7, 1300. 
 
 (g) Eyre v. Mc. Dowell, 9 H. L. C. 
 619. 
 
 (A) General S. Am. Co., L. R. 2 C. 
 D. 337; Grady. 13 Ir. Ch. 154. 
 
 (i) Discussed at close of this Chap- 
 ter. 
 
 (j) Explained ante, p. 38 (a). 
 
 (*) Hooper v. Smart, L. R. 1 CD. 
 90; Soble v. Brett, 24 Bea. 499.
 
 PRIORITY BY PRECEDENCE IN TIME. 347 
 
 Legatees, even by a Purchase for value (a) without notice 
 (a) and accompanied by the formalities prescribed for 
 acquiring priority over any previous disposition by them 
 (a); and this holds though the delay by the Creditor in 
 proving his debt has been great (a) (he having been 
 ignorant of his rights (a)) ; and though an Administration- 
 action has been instituted, and all debts certified therein 
 have been paid (a), and the assets in question consisted of 
 a fund lodged in Court to provide for an Annuity (b) ; and 
 though the owners of the rest of the assets were not 
 purchasers for value (a) ; and though the debt arose after 
 the purchase and consisted in Damages for breach, (after 
 the purchase), of a covenant made by the Testator in his 
 lifetime (c). But the rule seems confined to property 
 which vests in the Executor as such (d), unless proceedings 
 for the recovery of the debt had been commenced before 
 the purchase (e)\ and is inapplicable if the purchaser has 
 acquired the Legal estate (/) (i) in good faith (/) for 
 value (/), (whether the consideration be capable of being 
 applied to satisfy the lien, as Money (g), or not, as Mar- 
 riage (/)), unless Notice of the debt affected the purchaser 
 (/). And a Creditor is even entitled to priority (in respect of 
 so much of his demand as could be enforced against a par- 
 ticular legacy) over a purchaser of that Legacy (h), and 
 consequently, to priority (in respect of his whole demand) 
 over a purchaser of part of the Residuary estate (/?). 
 
 (l) In one of these cases (i) it was said that a Purchaser without notice, to whom 
 the proceeds of selling out the fund had been actually paid, would not be com- 
 pelled to refund, and the reason of this must be that such a payment extinguishes 
 (in the purchaser's favour) the Legal estate. 
 
 (a) Hooper v. Smart, L. R. 1 C. D. Sfc Co. v. Smart, L. R. 10 C. D. 567; 
 
 90; Noble v. Brett, 24 Bea. 499. Spackman v. Timbrel, (1st point), 8 Sim. 
 
 (6) Hooper v. Smart, 45 L. J. Ch. 253. 
 
 100a, / 45. (/) Dilkesv. Broadmead; Spackman v. 
 
 (c) Dilkes v. Broadmead, 2 D. G. F. J. Timbrell, 8 Sim. 260. 
 566. (g) Sd. Noble v. Brett. 
 
 (d) See ante, p. 37-8. (A) Hooper v. Smart. 
 
 (e) Ante, p. 169 (c-#); British Mutual (i) Noble v. Brett.
 
 348 
 
 PRIORITY BY PRECEDENCE IN TIME. 
 
 Lessor, when 
 preferred to 
 those who 
 derive under 
 the Lessee. 
 Assignee of 
 c hose in action 
 is subject to 
 its equities. 
 
 Again, a Lessor entering for a Forfeiture is entitled to 
 priority over those deriving under the Lessee (a);, but a 
 Lessor entering under a Surrender of the Lease is not (b). 
 
 The application of the rule to an ordinary Chose in action 
 (c) has been already (d) discussed, so far as it relates to the 
 promisee's rights under a contract; and I need here add 
 only that a preceding interest takes priority though it 
 merely consists in the right of the Promissor to set aside 
 the Contract as not binding on him (e), (unless its perfor- 
 mance was secured by Mortgage (/")); or to have credit for 
 part Payment, or performance, of it (g), (though it be so 
 secured (A)) unless the debtor has become precluded from 
 relying on this right (i) ; or (in some (J) but not in other 
 (k) cases) to Set-off counter demands; and though the 
 promise consist of an overdue Bill of Exchange or Pro- 
 missory Note (I), (but not, of course, if, when it became 
 due, the then holder was entitled to priority over the bene- 
 ficial interest in question {in) (i), nor in respect of equitable 
 rights collateral to the Bill, such as Set-off («), nor (it 
 seems) in respect of a right to set it aside as having been 
 
 (1) This depends on the rule that the Legal estate in a Bill or Note may be 
 transferred before (o), but cannot be transferred after (o), it becomes due ; and 
 the whole doctrine that priority can be gained by precedence in time is subject 
 to the doctrine, (treated of in a subsequent chapter), that the Legal estate is 
 preferred. 
 
 (a) Sd. Great Western By. Co. v. 
 Smith, L. R. 2 C. D. 235. 
 (6) G. W. R. Co. v. Smith. 
 
 (c) Defined ante, p. 3. 
 
 (d) Ante, p. 154-5; and as to a 
 Partnership-share, Kellu v. Hutton, L. 
 R. 3 Ch. 703. 
 
 (e) Natal Investment Co., L. R. 3 Ch. 
 355. 
 
 (/) Nant-y-glo tyc. Co. v. Tamplin, 35 
 L. T. 125, (a point not touched by 
 Eyre v. Burmester, 10 H. L. C. 90.) 
 
 ((7) Sd. Northern $c. Co. L. R. 10 Eq. 
 458 ; cases cited in Lewin, Tr. 497 (h-i). 
 
 (h) Authorities in 2 Davidson's Conv. 
 (3rd Ed.), 814. 
 
 (i) Northern S/c. Co.; Higgs v. Nor- 
 thern A. Co., L. R. 4 Eq. 387. 
 
 (J) Cavendish v. Greaves, 24 Bea. 173; 
 China St. Co. e. Mackenzie, L. R. 7 Eq. 
 240; Young v. Kitchen, L. R. 3 Ex. D. 
 127. 
 
 (it) Weguelin v. Cellier, L. R. 6 H. 
 L. 286; below p. 349(a). 
 
 (/) European Bk. e. Oriental fyc. Bk., 
 L. R. 5 Ch. 358; Holmes v.JKidd, 3 H. 
 & N. 891. 
 
 (m) Fairclough v. Pavia, 9 Ex. 695. 
 
 (n) Overend Sj-c. r. Swan, L. R. 6 Eq. 
 344, approved L. R. 3 Ch. 362 /. 8. 
 
 (0) See subsequent Chapters as to 
 the transfer of the Legal estate.
 
 PRIORITY BY PRECEDENCE IN TIME. 
 
 349 
 
 given gratuitously (a), or obtained by fraud, mistake, &c. (b) (i). 
 
 And (to pass from the consequences of the rule to 
 instances in which it has been extended beyond its reason 
 and fair interpretation): — 
 
 An incumbrancer is entitled to extend, (under the doctrine 
 already (c) explained,) his incumbrance to other property, 
 (on which he has, or acquires, another incumbrance,) even 
 against a Surety who exercises his right to purchase a trans- 
 fer of the latter incumbrance (d) ; and even against those 
 who derive for value under the creator of the incumbrances, 
 whether as Bankruptcy-Creditors (e), Purchasers (/), or 
 Mortgagees (g), and who had no means of guessing the 
 existence of the incumbrance thus extended (h), and had 
 acquired the property before the incumbrances came 
 together (h) ; and though the incumbrances were brought 
 together by a transfer to one who knew that the creator of 
 the incumbrances had transferred the property for value 
 (*); or by the exercise of a right of Redemption (_/'); but 
 not against those who acquired the property for value 
 before the later incumbrance was created (k), (especially if 
 it was but a Judgment-charge (/),) unless it was entitled to 
 priority under the Registry Acts (m), or, perhaps, other- 
 wise; nor if the application of the rule would violate the 
 
 Extensions of 
 the doctrine. 
 
 Mortgagee may 
 Consolidate 
 against as- 
 signees of 
 equity of 
 redemption. 
 
 (i) Probably however, all that was meant was, that if the holder was enti- 
 tled, when the Bill or note became over-due, to priority over these claims, the 
 transferee of it after it became due was equally so. 
 
 (a) Sturtevant v. Ford, 4 M. & Gr. 
 101 ; and see the discussion in Byles 
 on Bills, (11th Ed.,) 166, and n. («.) 
 
 (6) See Overend r. Swan; see Chalmers 
 v. Lanion, 1 Camp 383. 
 
 (c)^n(ep. 366-9. 
 
 (d) Farebrother v. Wodehouse, 23 Bea. 
 18. 
 
 (e) Selby v. Pomfret, 3 D. G. F. J. 
 595. 
 
 (f) Beevor v. Luck, L. R 4 Eq. 537. 
 (?) Vint v. Padget, 2 D. G. J. 611; 
 
 Tweedale v. Tweedale, 23 Bea. 341. 
 
 (K) Selby v. Pomfret; Beevor v. Luck; 
 Vint v. Padget. 
 
 (i) Selby v. Pomfret; Beevor v. Luck. 
 
 (j) Titley v. Davies, 2 Y. & C. C. C. 
 399 ; Tweedale v. Tweedale. 
 
 (i) Mills v. Jennings, L. R. 13 C. D. 
 639 ; overruling Tassell v. Smith, 2 D. 
 G. J. 713, unless the latter can be 
 distinguished on the ground stated in 
 Baker v. Gray, L. R. 1 C. D. 495. 
 
 (/) Ford v. Tynle, 41 L. J. Ch. 758. 
 
 (m) Neve v. Pennell, 2 H. & M. 17a
 
 350 
 
 PRIORITY BY PRECEDENCE IN TIMB> 
 
 A disposition 
 under a Power 
 does not 
 displace a 
 preceding 
 interest derived 
 under the 
 disponor. 
 
 Policy of the law (a) ; nor, therefore against those who are 
 entitled by the Bills-of- Sale- Act (b) to priority in respect of 
 one of the properties (a); nor (it seems) against a Litigant 
 who commenced his action before the incumbrances came 
 together (c), and who is therefore protected by the rule 
 lite pendente nil movetur (d). 
 
 A Disposition (e), (or Consent to a disposition (/),) made 
 in exercise of a Power, cannot operate on a previous 
 interest derived from the disposing or consenting party (g) 
 (i), or derived from others under a disposition in which he 
 concurred (h), or exonerated by his Release (i) or enforcible 
 Agreement (/) ; and this holds (in the first case) whether 
 he was entitled to (k), or merely authorized to dispose of (/), 
 the interest in question ; and though he merely dealt with 
 it by giving a Crown Bond (in) (which operates as an 
 Incumbrance («)); or, (being Tenant-in-Tail,) dealt with it 
 by Fine (o), or Recovery (p), so as to bar the entail; and 
 
 (i) In one of the cases (g) the Court held that a Lease under a power by 
 which only Leases in possession were authorized, was not less valid, although a 
 previous lease by the same Lessor was then subsisting; and yet the Court 
 admitted that this previous Lease would take priority over the Lease under 
 the Power. But qu. 
 
 (a) Chesworth v. Hunt, L. R. 5 Q. B. 
 D. 271. 
 
 (6) 4 1 -2 Vic. c. 3 1 , ( Eng) ; 42-3 Vic. 
 c. 50, (Ir.); 17-18 Vic. c.36: discussed 
 in a subsequent Chapter. 
 
 (c) Matthews v. Antrobus, 49 L. J. 
 Ch. 80. 
 
 (d) Discussed above p. 73-4, and 
 below. See also a subsequent Chapter 
 as to Fraudulent Preference. 
 
 (e) Albany's Case, 1 Co. 272; Bad- 
 ham v. Met, 7 Bing 695; Biclcley v. 
 Guest, 1 R. & M. 440; (sd. Bringloe v. 
 Goodson, 4 Bing. N. R. 726;) Cunyng- 
 hame v. Thurlow, 1 R. & M. 436; Digge's 
 Case, 1 Co. 408 ; Doe v. Britain, 2 B. & 
 A. 93; Edwards v. Slater, Hard. 410; 
 (sd. Fryer y. Morland, L. R. 3 C. D. 
 680 I. 33-5;) Goodright v. Cator, Dougl. 
 460; Horner v. Swann, 1 T. & R. 430; 
 Hurst v. Hurst. 16 Bea. 372; Isaac v. 
 Hughes, L. R. 9 Eq. 191 ; King v. Mel- 
 ling, 1 Vent. 225 (rvd. on anotherpoint 
 2 Lev. 61;) (see Leigh v. Ashburton, 11 
 
 Bea. 470); Noel v. Henley, Mc. CI. & 
 Y. 302; Queen v. Ellis, 19 L. J. Ex. 77; 
 Suvile v. Blacket, 1 P. W. 777; Serope 
 v. Off ley, 4 B P. C. 237 ; Smith v. Death, 
 5 Mad. 371; Smith v. Houblon, 26 Bea. 
 482; West v. Berney, 1 R. & M. 431. 
 
 (f)SeeL.y.A. 
 
 (g)G.v.C; N.v.H. 
 
 (A) W. v. B. (p. 434-5); S.y. B.; S. 
 v.D.; H.y.S. 
 
 (i) A's Case- C. v. T. (Personalty). 
 But N. v. H . was a case of personalty 
 on which the decision merely was that 
 the life-tenant could not displace the 
 interest derived under himself. 
 
 O) (Covenant) H. v. R., S. v. O. 
 
 (fc) So in almost all the cases. 
 
 (0 E. v. S. 
 
 (m) <?. v. E. 
 
 (n) 33 H. VIII, c. 39. 
 
 (o) D'*. Case; B. v. G.; S. V. D. 
 
 Q>) K. v. M. 
 
 (?) B. v. G.
 
 PRIORITY BY PRECEDENCE IN TIME. 351 
 
 (in the third case) though the Release be gratuitous (a); 
 and in the second (b) (i) and third (c) cases though the 
 interest in question was not (at least since the creation of 
 the power) derived through him ; and (in every case) though 
 it was derived by a wrongful (e) (n) disposition; and 
 though the disposing or consenting party himself derived 
 under the disposition by which the power was conferred 
 (/) (so that it might be supposed that the parties understood 
 that the preceding interest was to terminate upon exercise 
 of the power); and though the power merely authorized a 
 Sale (g) or Exchange for money or property to be held 
 under the same limitations to which the property sold or 
 exchanged was subject, and the preceding interest was but 
 an incumbrance, which might have been equally answered 
 out of such money or property so acquired; and though 
 
 (i) This is a violation of principle, for there is no more reason why an 
 exercise of the power should not operate on an interest derived under another 
 hy a disposition in which the party exercising the power concurs, than there is 
 why it should not operate (as it does not) on an interest derived under a dispo- 
 sition in which he does not concur, or under a disposition made by himself but 
 ineffectual to displace the interests of those who are entitled (A). 
 
 (11) Wrongful; that is such as to displace the interests of those who are 
 entitled, and yet leave in them a right to regain those interests by Entry or 
 Action (t). A Tenant-in-tail can do this by any deed of disposition (j), and a 
 Life-tenant, or any freeholder, can do it by feoffment (t) made before 1st 
 October, 1845 (/), or by fine or recovery commenced before 31st Dec. 
 1833 (Eng.) (m), or 31st Oct. 1834 (Ir.) (n). The reason for including a 
 wrongful disposition was, either because these interests were displaced by it, 
 or because (o) by it the life-tenant forfeited his life estate (p) while the power 
 was considered to be given conditionally on his retaining that estate (q) (a 
 construction now overruled (r)). 
 
 (a) I. v. 27". («) See this subject explained in 
 
 (A) W. v. B.; K. v. M,; B. v. G.\ S. Taylor v. Horde, Burr. 105 sqq. 
 
 V. B.\ S. v. D.; H. v. S.; but in H. v. (j) Goodright v. Mead, 3 Burr. 1704. 
 
 H. it was only to the extent of the life (Jfc) For explanation of Feoffment see 
 
 interest that the power was held to be ante, p. 77-8. 
 
 suspended. (/) 8^9 Vic, c. 106, s. 4. 
 
 (c) A's Case; C. v. T. (m) 3-4 Wm. IV, c. 74, s. 2. 
 
 (J) Cases cited in (a) and (b). (»*) 4-5 Wm- IV, c. 92, s. 2. 
 
 (e) B. v. G. (Fine); D's. Case (Fine); (o) S. v. D., (p. 374, /. 5-10); W. v. 
 S. v. D. (Recovery); K. v. M. (Re- B., (p. 435, /. 10-23, p. 436, I. 15-17); 
 covery). K. v. Af , (p. 228, /. 27-30); and see 
 
 (f) So in all the cases. D's Case, (fo. 173b- 174a); audi?, v. S. 
 
 (g) G. v. C, explained Sugd. Pow. (p) W. v. B., (p. 435, /. 10-23, p. 436, 
 869 (e). /. 15-17). 
 
 (A) E. v. S., and cases cited in Sug. (q) K. v. M. (p. 226, /. 26-30). 
 Pow. Ch. Ill, s. 4 (2). (r) Long v. Rankin, Sug. Pow. 899.
 
 352 PRIORITY BY PRECEDENCE IN TIME. 
 
 the exercise of the power carried the Legal estate (a) to 
 a disponee for value (a) without Notice (i) of the preceding 
 disposition or release (unless the preceding interest was 
 merely beneficial, — in which case it would be, by another 
 rule (b), postponed to that made in exercise of the power) ; 
 and though the power was not exercisable for the benefit of 
 the party exercising or consenting to it (c), (unless he was 
 bound to exercise or consent to it (d)); and though the 
 preceding interest had passed from him gratuitously (e); 
 and though the power be one of those conferred by 
 Lord Cranworth's Act (/). 
 
 But this rule (when the preceding interest was acquired 
 with the party's concurrence or exonerated by his release) 
 only applies if he had, (besides his power) some interest in 
 the property (g) (i i) at the time when the preceding interest 
 was so acquired; and (when it was exonerated by his 
 release) if the power was one which he himself (h) (or 
 perhaps some other person (i)) had conferred on him for 
 his own benefit; and, (when the power was confined to 
 the beneficial estate,) only if the preceding interest was 
 
 (i) This follows from the extension of the doctrine to dispositions of the 
 Legal estate under powers. It is however to be regretted that the doctrine was 
 not confined to the beneficial estate, so that purchasers for value in good faith 
 without notice of the preceding interest might obtain that title which, on 
 strict reasoning, they would have, namely, a title free from all interests which 
 were overridden by the power. But of course Notice is necessary when the 
 preceding interest is not legal (j). 
 
 (n) In this case a Fine, (whether levied by the party himself (£), or by an- 
 other (/),) did not shorten the period within which any one deriving under the 
 power, (as it did the period within which others whose interests were displaced 
 by the fine (m),) must have claimed the property. 
 
 (a) K. v. M. ; G. v. C. ; S. v. B. Moo. 605; Farwell on Powers, 10, 11 ; 
 
 (b) See the Chapter on "Priority by Sug. Pow., Ch. Ill, s. 1 (1). 
 
 the Legal estate and similar means." (h)A's. Case, Birdv. Christopher, Stiles 
 
 (c) S. v. D.; W. v. B.; B. v. G.; C. 389; Sug. Pow. 50 /. 8-10; and see 1 R. 
 v. T.; K. v. M.;H. v. S.; H. v. if.; G. & M. 435 /. 3-9. 
 
 v. C; S. v. B.; I. v. E.; S. v. H. (in (»*) Sug. Pow., Ch. Ill, s. 1 (3). 
 
 which he derived an indirect benefit). (j) Taylor v. Stibbert, 2 Vez. J. 437. 
 
 (d) Weller v. Ker (same as English (k) Sd. Digge's Case, 1 Co. 1 74a, pi. 
 Law) L. R. 1 Sc. 14. 5, and notes (b) & (e) in Thomas & 
 
 (e) C. v. T.; B. v. G. (p. 442 /. 26- Frazer's Edition. 
 
 7;) K. v. M. (/) Willis v. Shorral, 1 Atk. 474. 
 
 (f) 23-4 Vic, c. 145, s. 31, 33. (m) 34 Ed. Ill, c. 16; 1 Rich. Ill, c. 
 (#) Sd. Digge's Case, 1 Co. 157a, 7 ; 4 Hen. VII, c. 24.
 
 PRIORITY BY PRECEDENCE IN TIME. 353 
 
 beneficial (a); and it does not seem to apply if his concur- 
 rence in the preceding disposition was merely as Protector 
 of a Settlement (b). And it does not apply if the preceding 
 interest was derived by a Transmission from him (c), 
 whether the power was exercisable for his own benefit (c), 
 or not (d); and whether the transmission was by Marriage 
 (c), — by Judgment (/), unless it either was a charge (g), (the 
 power being exercisable by him alone for his own benefit 
 (h)), or, perhaps, was confessed by him (i), — by statute- 
 charge for Succession-duty (j) (when the power is one of 
 Sale, Exchange, or Partition (J)), — or, probably, by any 
 other means, — except Bankruptcy and Liquidation (which 
 preclude the party from exercising a power (k) even when 
 it is only exercisable for the benefit of others (/)). Nor 
 does it apply if the power be exercised with the consent of 
 the party entitled to the preceding interest (;/?) ; or pursuant 
 to a right reserved against him when that interest was 
 transferred to him (»); nor, therefore, if the power was 
 created by the same disposition by which that interest was 
 transferred to him (p)\ nor if the nature of the power and 
 of the preceding interest shews that it was probably under- 
 stood that it might still be exercised, — as, when the power 
 is an ordinary Leasing one, and the preceding interest is a 
 
 (a) Anon. 15 Hen. VII, Sug. Pow.893. («') This is consistent with the cases, 
 
 (6) Sug. Pow. 91-2. For definition in none of which does the judgment 
 
 of Protector see Ch. XLV. seem to have been thus confessed. And 
 
 (c) Ray v. Pung, 5 B. & A. 561 ; 5 see above, p. 350 (m). 
 Madd. 310; cases cited below in n. (/). (j) 15-16 Vic, c. 51, s. 42. 
 
 (d) Whitmarsh v. Robertson, 1 Coll. (*) Doe v. Britain, 2 B. & A. 93; 
 N. C. 570. Hole v. Escol, 4 M. & Cr. 187. 
 
 (e) Ray v. Pung, (as to Dower, but (/) H. v. E. 
 
 the report does not clearly state that (m) Long v. Rankin, Sug. Pow. 898, 
 
 the disposition of the preceding interest / 43-4"; Alexander v. Mills, L. R. 6 Ch. 
 
 was after the marriage) ; Whitmarsh v. 125, and cases there cited; Simpson v. 
 
 Robertson, (as to Marital rights.) Bathurst, L. R. 5 Ch. 200-1 ; WalmesUy 
 
 (f) Dot v. Jones, 10 B. & C. 459; v. Butterworth, Sug. Pow. 62-4; see L. 
 Turnstall t. Trappes, 3 Sim. 300; Eton R. 3 C. D. 680, /33-5; Tyrrell v. Marsh, 
 v. Sanxter, 6 Sim. 517; Skeeles v. Shear- 3 Bing. 35, I 5-6. 
 
 ley, 3 M. & Cr. 112; solving the doubt (») l^ong v. Rankin, and Warburton 
 
 in Leigh v. Ashburton, 11 Bea. 470. v. Farn, as interpreted in Sug Pow. 
 
 (S) By the 1-2 Vic, c. 110, s. 13. 65 (/), 66 (n). 
 
 (A) Because the Act provides that (o) Warburton v. Farn, 16 Sim. 625; 
 
 the charge shall extend to property over and cases cited in Sug. Pow. 484 (*-<*). 
 which he has such a power. 45
 
 354 
 
 PRIORITY BY PRECEDENCE IN TIME. 
 
 Promisee is 
 entitled to 
 avoid certain 
 dispositions 
 made to evade 
 the promise. 
 
 Bar of entail 
 confirms 
 preceding 
 disposition. 
 
 Qualification 
 of the Rule. 
 Paying off an 
 Incumbrance 
 lets in 
 subsequent 
 Incumbrances. 
 
 Mortgage- (a), or Trust-, estate (b), (unless the Mortgagee or 
 Trustee has taken Possession or disposed of the estate before 
 the making of the Lease (c), — or as when the power is a power 
 of Sale and the preceding disposition a Disentailment (d). 
 And the rule that Priority is conferred by Precedence 
 in Time is carried so far that a Disposition &c. for 
 value takes priority, not only over those subsequent dispo- 
 sitions which are inconsistent with its literal sense, but 
 also over those which are inconsistent with the expectations 
 in reliance on which the consideration was rendered; or at 
 least, one who is entitled to enforce a promise to leave by 
 will a specified proportion of the promissor's estate is 
 entitled to treat as void any subsequent gratuitous dispo- 
 sition by which the promissor has reserved a life interest (e). 
 And finally, a disposition made by a Tenant-in-tail (/) or 
 former tenant-in-tail (/) or by the Trustee in his Bank- 
 ruptcy (g) in bar of the entail does not displace, but 
 confirms, a preceding disposition for value made by him, 
 and that to the full extent to which it could have been 
 confirmed by express words in the later disposition, though 
 this may exceed the extent of the interest comprised therein 
 (/) ; but not if the later disposition was a mere Lease (not 
 requiring enrolment (/)) ; nor if it was made for value to a 
 disponee in good faith, unless either he had express notice 
 of the preceding interest (/), or (as regards estates in 
 Ireland) the earlier disposition was registered before the 
 later one was made (/). But a disposition made under a 
 Power has not a corresponding effect (h). 
 
 However the rule that precedence in Time confers pri- 
 ority is trenched upon by the rule that An Incumbrancer («'), 
 
 («) Ren v. Bulkeley, Doug. 293 ; Long 
 v. Rankin, Sug. Pow. 901. Ld. Mans- 
 field's opinion that the lease is valid 
 against the mortgagee is denied in Sug. 
 Pow. 67, which seems contrary to Sug. 
 Pow. 56 /20-2, and to Vincent v. Ennys, 
 3 Vin. Ab. 432, and Corker v. Ennys, ib. 
 
 (6) Doe v. Thomas, 9 B. & C. 288; 
 Talbot v. Tipper, Salk. 427. 
 
 (c) Said in effect,!), v. T. 
 
 (d) Hill v. Prilcluird, 1 Kay. 394. 
 
 (e) Logan v. Weinholt, 7 Bli. N. S. 1. 
 
 (f) 3-4 Wm. IV, c. 74 (E.), s. 38; 4- 
 5 Wm: IV, c 92 (I), s. 1. 
 
 (g) E., s. 62; (Ds. 55. 
 
 (h) Edwards v. Slater, Hard. 410. 
 
 (i) Farroio v. Rees, 4 Bea. 18; Medley 
 ■v.Horton, 14 Sim. 226; Otterv.L. Vaux, 
 2 K. & J. 650; Parry v. Wright, 5 Russ. 
 142; Smithy. Phillips, 1 Ke. 694; TouU
 
 PRIORITY BY PRECEDENCE IN TIME. 355 
 
 Leaseholder (a), &c., upon an estate which, when he 
 became such, was subject to, but has since been exonerated 
 from (b), or united in ownership with (c), a prior incum- 
 brance, is entitled to enforce his own Security on the 
 estate as exonerated, without allowing credit for the value 
 of the prior incumbrance, and this whether the subject be 
 an hereditament (d), a fund (e), or otherwise; and whether 
 the union of the estate with (or its exoneration from) the 
 incumbrance took place in the mortgagor (/), or in one 
 who derives under him (g); and whether by Release, by 
 Transfer of the incumbrance to the disponee of the estate 
 ( h), by Transfer of the estate to the incumbrancer (i), by 
 Transfer of both to the same person (j), or, (when the 
 original mortgagor continues to own the estate), by his 
 Purchase through a power conferred in the mortgage (k). 
 This Rule, when the mortgagor obtained the advance 
 from a second incumbrancer by representing the estate to 
 be unincumbered, is but an application of one already (/) 
 stated, and, when this is not so (m), seems as unreasonable 
 as a rule by which an incumbrance on a life interest should 
 be extended to the reversion; and the Courts are already 
 (n) expressing disapprobation of it as applied against 
 purchasers. But still it is held applicable: — against the 
 Mortgagor, though he has, (by taking distinct transfers (o) 
 or otherwise (o)), indicated a contrary intention; — against 
 those deriving under him by Transmission or Gift, if they, by any 
 
 min v. Steere, 3 Mer. 210, (as to which (h) P. v. W. 
 
 see 5 Russ. 448, / 11-14). But Brown (i)Conceded Adamsv. Angell (below); 
 
 v. Stead, 5 Sim. 535, and Greswold r. S. v. P. ; B. v. S. 
 
 Marsham, Dart. (4thEd.),839,depeuded 0') P. v. W ; T. v. 8.; Af. v. H. 
 
 upon an expressed intention that the (fc) O. v. V. 
 
 purchaser should he liable. (0 Ante, p. 285 (/). 
 
 (m )The only cases which I can find 
 
 la) S, v. P. in which the subsequent incumbrance 
 
 (6) O. v. V. [v. S. was let in, while yet it is clear from the 
 
 (c) Af. v. H.; P. v. IF.; S. v. P.; T. report that there was no misrepresen- 
 
 (J) F. v. R ; O. v. V.;P.v. W.; S. tation, are, 0. v. V.; S. v. P.; and T. 
 
 v. P. • T. t. S. v. S. The reports are silent as to Af. 
 
 ' (e)F. v. R.; M. v. R. v. H., and P. v. W. 
 
 (f) O v V. («) See observations in Adams v. 
 
 (g) B/v'. S. ; Af. v. H. ; P. y. W. ; S. Angell, L. R. 5 C. D. 642, 645. 
 v. P.; T. v. S. 0) Said 0. v. V. (p. 657).
 
 35G PRIORITY BY PRECEDENCE IN TIME. 
 
 dealing with the property, declare that the earlier incum- 
 brance shall become extinct {a), but not otherwise (b); — 
 and against those deriving under him by a means to which they 
 are parties (i) (as Purchase (c) or Mortgage (d)), even though 
 they express no intention (e ) ; and (perhaps) though they 
 had no notice (n) of the later incumbrance (/), unless they 
 obtained the Legal estate, (in which case a different rule 
 would come in (g)); — but as against any one (except 
 perhaps the mortgagor himself (h)), only if he has (i), or 
 can acquire (_/), the full interest affected by the incum- 
 brance (unless he indicate an intention that the incum- 
 brance shall become extinct (k)); — and as against Purchasers 
 &*c, not if they will (by resale to their vendor) restore mat- 
 ters to their former condition (I) ; nor if they indicate by the 
 purchase deed (m), or extrinsically (w), an intention to keep 
 the incumbrance on foot ; nor if a release was made to the 
 mortgagor upon payment by the intending purchaser &c, 
 
 (i) This ground of decision is not satisfactory, and was probably not intended. 
 If the acceptance of a devise to the incumbrancer does not extinguish the 
 incumbrances, neither should his purchase; for he can declare an intention to 
 keep it on foot in the one case as well as in the other. 
 
 (n) In some of these cases the purchaser (o), or his agent (/>), knew (q), of 
 the intermediate incumbrance. In others (r) it does not appear whether they 
 had any notice (*) either actual (s) or constructive (»). 
 
 (a) F. t. R. see, as to cases without competing in- 
 
 (6) Forbes y. Mofatt, 18 Vez. 384; cumbrances, Lewin, 521 (6). 
 
 Most of the cases in Lewin (5th Ed.), (J) See for Cases in which there was no 
 
 520 (c-m). competing incumbrance, Lewin, 521(A). 
 
 (c) P.v. W.\ S.v. P.; T.v.S.; cases (i) Cases in Lewin 521 (g). 
 which, however, are scarcely recon- (/) Mocatta v. Murgatroyd (2nd part), 
 cilable with Irby v. Irby, 25 Bea. 632, 1 P. W. 393; Haydon v. Kirkpatrick, (a 
 or even with Phillips t. Gutteridge, 4 D. comical case), 34 Bea. 645, (see 649 fin). 
 G. J. 536. (m) Phillips v. Gutteridge, 4 D. G. J. 
 
 (d) M. v. H. 531 ; Irby v. Irby, 25 Bea. 632; Bailey 
 00 M. v. H.; P. v. W.; S. v. P.; T. v. Richardson, 9 Hare 736; Adams v. 
 
 v. S. Angell, L. R. 5 C. D. 634. 
 
 (/) I cannot ascertain from any of («) Watts r. Symes, 1 D. G. M. G. 
 
 the cases whether this was so. 240; Adams v. Angell, L. R. 5 C. D. 
 
 (<7) See below in the chapter on 642 fin. 
 Priority by the Legal estate &c. (o) P. v. W. 
 
 (A) Cases in Lewin, 521 (e-g), 522 (p) T.v.S. 
 («-c), and see above p. 323 (/), 324 (e), (g) P. v. W. ; T. v. 5. 
 77(e). (r) M. v. H., W.v.S. 
 
 (0 F. v. M. ; M. v. H. ; T. y. S. ; and (») Defined in a subsequent Chapter
 
 PRIORITY BY PRECEDENCE IN TIME. 357 
 
 and for the purpose of enabling the mortgagor to convey to 
 him free from incumbrances (a); nor if the mortgagor was 
 bankrupt (b), the property insufficient for both incum- 
 brances (b), and the purchaser aware of these facts (b). 
 
 When the rights of subsequent incumbrancers do not 
 intervene, and no intention is declared, the incumbrance is 
 extinguished (c), without regard to the interests of the repre- 
 sentatives of the mortgagor (d), unless, (but not if,) its 
 separate existence is beneficial to the mortgagor himself (e). 
 
 (a) Watts ▼. Symes, Pease v. Jackson, 634; Harris r James, L. R. 19 Eq. 253, 
 
 L. R. 3 Ch. 576 (a receipt from a overruling S. v. P. 
 
 Building Society). In the latter, and (c) Thomas v. Kemish, 2 Vera. 348 ; 
 
 probably in tbe former, of these cases, Horton v. Smith, 4 K. & J. 630. 
 
 the purchaser was without notice of the (rf) L. Compion v. Oxenden, 2 Vez. J. 
 
 intermediate incumbrance; but this 264. 
 
 seems immaterial. (e) Cases in Lewin, 520(c)— 522 (e). 
 
 (6) Adams v. Angell, L. R. 5 C. D.
 
 ( 358 ) 
 
 CHAPTER XLIII. 
 
 PRIORITY DEPENDING ON INTENTION. 
 
 General 
 
 Statement. 
 
 Rule. 
 
 Examples: — 
 
 Shifting 
 
 Clause. 
 
 Power. 
 
 (" Power of 
 Revocation " 
 defined.) 
 
 (" Power of 
 
 Appointment" 
 
 defined.) 
 
 Testamentary 
 disposition. 
 
 Entry for 
 breach of 
 Condition. 
 
 Qualification : 
 Sale subject to 
 void trans- 
 action. 
 
 The priority of limitations contained in a disposition is 
 of course accordant with any conditions prescribed by it, 
 for each claimant can take only what is given to him. 
 Thus, the limitations in an ordinary Shifting clause take 
 priority over the interests which the shifting clause over- 
 rides; and it is on the same principle that a limitation 
 under a Power, conferred by a disposition on the disponor 
 or any other person, to shift the estate to the limitations 
 previously affecting it (which is called a "Power of Revoca- 
 tion)," or to new limitations (which is called a " Power of 
 Appointment"), generally displaces the limitations pre- 
 scribed by the disposition (a) ; and that any disposition or 
 transmission from a Testator in his lifetime takes priority 
 over the limitations in his Will (b); and that a Lessor &c. 
 entering for breach of Condition takes priority over those 
 who derive under the lessee &c, though when entering 
 upon a Surrender he is postponed to them (c). 
 
 But a sale &c. "subject to" a previous dealing with the 
 property does not validate (d) it save so far as is necessary 
 for the protection of the vendor (e), nor, therefore, post- 
 pone the purchaser to it any further (d) (i). 
 
 (i) The doctrine in Sugden on Vendors (/) seems to be contrary to that in 
 the case cited in the text, but I cannot see that the cases cited by Lord St. 
 Leonards bear him out. Indeed two (</) establish the contrary proposition to 
 that for which they are cited. But the marginal note to one of these (h) is mis- 
 leading, for it is not the point decided in that case, but its contradictory, which 
 counsel there alleged to have been decided in an earlier case. 
 
 (a) Below, next paragraph but one. 
 
 (b) See Ashbumham v. Bradshaw, (3rd 
 and following judgments), 7 Mod. 239. 
 
 (c) Great Western R. Co. v. Smith, 
 L. R. 2 C. D. 235, ante, p. 348 (a-b). 
 
 {d) Smith v. Widlake, L. R. 3 C. P. 
 D. 10. 
 
 (e) Sd. S. v. W. ; and see Mc. Donegal 
 v. Grey, 13 Ir. Eq. 12. 
 
 (f) Sug. V. P., (14th Ed ), 751, 752. 
 
 (g) Walton v. Stanford, 2 Vera. 279; 
 Doe v. Archer, 1 B. & P. 531. 
 
 (h) IF. v. S.
 
 PRIORITY DEPENDING ON INTENTION. 
 
 359 
 
 The chief difficulty under this head is, to determine in 
 what case a limitation under a Power conferred by a dispo- 
 sition, will displace a limitation made by (or under the 
 authority of) that disposition. 
 
 The general principle is that a Limitation under a Power 
 displaces those interests which, if it had been inserted in 
 the disposition by which the power was conferred, would 
 probably have been subject to it ; — that is those belonging 
 to persons for whose benefit the power was conferred (a) ; 
 unless the rule (b) by which priority belongs to a previous 
 disposition by him who exercises the power be applicable. 
 Hence a disposition made under such a Power for the 
 common benefit of those interested under a Family Settle- 
 ment (testamentary or otherwise), (for example, a Lease 
 Sale Exchange or Partition), takes priority over a Jointure, 
 a Charge for Portions or Mortgage to secure them, an 
 Estate Tail, or the like, whether these be limited by the 
 settlement itself, or under another power contained in it 
 (c) ; and also over Succession duty (d) ; but not over inter- 
 ests limited by the settlement in precedence of those 
 thereby limited to him on whom the power was conferred 
 (e), unless the power be to Lease (/)). And hence a Sale 
 under a power is effectual notwithstanding a previous dis- 
 tribution of the interests in the property under another 
 power (g), unless the latter is extinguished by the former, 
 under the doctrine already (h) explained. And it has been 
 even questioned (i) whether a sale under a power for pay- 
 ment of Debts (i) will not displace a sale previously 
 
 (i) As a sale under an Implied Power, or under a Charge, displaces the 
 limitations as completely as a sale under an express power, the question whe- 
 ther a sale can be made under such a Power or Charge has often to be 
 considered. It is discussed in the authorities in the note (j). 
 
 (a) See Braybrookey. Att.-Gen., 9 H. 
 L. 150. 
 
 (6) Ante, p. 350 («), sqq. [14). 
 
 (c) Sug. Pow., Ch. IX, s. 4, (10, 13, 
 \d) 15 & 16 Vic,c. 51, s. 42. 
 
 (e) Fry v. Fish, Cro. Car. 331; Fox 
 v. Prickwood, Cro. Jac. 347. 
 
 (f) JDoev. Thomas, 9 B. & C. 288; 
 Talbot v. Tipper, Salk. 427; Rogers v. 
 
 Humphreys, 4 A. & E. 299. 
 
 (g) Brown's Settlement, L. R. 10 Eq. 
 349. 
 
 (A) A nte, p. 269, " Duration of Powers." 
 
 (i) Farwell on Powers, 11-13; Dart, 
 568-9. 
 
 0") Farwell, 5 1-66 ; Sug. Pow. Ch. IV, 
 s. 1 (33-69) ; Shelford, R. P. (8th Ed.), 
 467,484-9; Theobald on Wills, 234-8; 
 469. 
 
 Detailed 
 statement 
 respecting the 
 relative prior- 
 ity of a Limi- 
 tation under 
 Power and 
 limitations 
 made by (or 
 under the 
 authority of) 
 the disposition 
 by which it 
 was conferred. 
 Preference of 
 a limitation 
 which would 
 probably stand 
 first in the 
 Settlement.
 
 360 
 
 PRIORITY DEPENDING ON INTENTION. 
 
 Preference of a 
 Limitation 
 under a power 
 over a Limi- 
 tation under 
 the settlement 
 or under a 
 power 
 
 subsequently 
 exercised. 
 
 completed under a power conferred for the benefit of those 
 interested under the settlement. And a jointure limited by 
 a Settlement &c. (a), or under a power conferred by it, 
 takes priority over (b) an Estate Tail limited by it to the 
 issue (c); over Legacies (d) and Portions (e) limited by it 
 (even to the children of a previous marriage (f)) ; and over 
 a term for securing them (/); — and this last even against 
 one who purchased the term before the jointure was limited 
 (g); especially if, (in each case), the jointure might consist 
 of (A), or be secured by (i), a legal estate in the premises. 
 But whether these rules apply against Portions limited 
 under a power is doubtful (j). 
 
 And even a Jointure-rent-Charge limited under a power 
 abates equally with other rents-charges limited by the 
 settlement (k). And Portions charged under a power do 
 not take priority over the life interest of the elder brother 
 of the portionist's father (I) : and yet they have, (on account 
 of the wording of the settlement) been allowed priority over 
 other portions charged by the settlement for the younger 
 children of the portionist's grandfather (in). 
 
 When the limitations are such that usage &c. does not 
 afford a guide to their probable position in the settlement 
 the rule is that a Limitation under a Power takes priority 
 (as from the time when the power is exercised (»)) over the 
 limitations contained in (or afterwards made under the 
 authority of) the disposition by which the power was 
 conferred, including those which have vested (o) since it 
 was conferred (p) ; and this — even as against those to whom 
 
 (a) Sd. Hall v. Carter, 2 Atk. 354. 
 
 (6) Carter v. Carter, Mos. 365; Rey- 
 nolds v. Meyrick, (strong case), 1 Eden. 
 48; Churchman v. Harvey, Amb. 335; 
 Hall v. Carter, 2 Atk. 354; Bailey v. 
 Tennant, 11 Ex. 776; Sandys v. Sandys, 
 1 P. W. 706. 
 
 (c) C. v. C. 
 
 (d) R. v. M. 
 
 (e) C.v. H.; H.v. C. 
 
 (f) B. v. T.-S.y.S. 
 (9) S. v. S. 
 
 (A) R. v. Af.i C. v. H.; H. v. C- B. 
 (i) B. v. T. [v. T. 
 
 (j) Sug. Pow., 486 sqq. 
 
 (*) Coore v. Todd, 7 D. G. M.G.520. 
 
 (/) Lawton v. Swetenham, 18 Bea. 98. 
 
 (m) Moseley v. Moseley, 5 Vez. 248. 
 
 (n) D. Marlborough v. Godolphin, 2 
 Vez. 6 1 ; and see Southby v. Stonehouse, 
 ib. 610. 
 
 (o) For the meaning of this word see 
 ante, p. 224 (c). 
 
 (p) Sug. Pow., ch. XIII, pi. 12.
 
 PRIORITY DEPENDING ON INTENTION. 361 
 
 the interests so contained have passed by operation of law, 
 as, a Judgment-Creditor (a) (i), a Dowress (b), or a Bank- 
 ruptcy-trustee (c), (even, in this last case, though the 
 power be exercised in favour of the bankrupt and his 
 creditors be thus defeated (c)) ; and against those to whom 
 these interests have been disposed of for value (d). Hence 
 an incumbrance which a life-tenant creates under a power 
 takes priority even over his Wife's Jointure (e), save that 
 when the incumbrance is in his own favour his Wife has a 
 lien on it to the extent of her jointure for any sum which 
 he may have undertaken to settle (/). Anc^a Lease under 
 a power displaces even those limitations which precede the 
 interest limited to the Lessor by the settlement (g); and 
 this, though no rent be reserved by the lease (h) (the power 
 not requiring any (k)), and though the limitations displaced 
 had been made for value (»). But it does not displace a 
 limitation previously made under another power in the set- 
 tlement (/), unless that limitation was made upon trusts the 
 carrying out of which had not commenced when the lease 
 was made (k). So a Lease under a power takes priority 
 over a sale (I) or mortgage (m) afterwards made under 
 another power (/) ; a Sale over a Lease afterwards made 
 under a power (/); and a Sale, Exchange, or Lease, over 
 a Jointure or Portion limited by the settlement (/), (which 
 
 (i) But these have, under certain circumstances, a charge on the interests 
 limited under the power (n). 
 
 (a) Doe v. Jones, 10 B. & C. 459; (g) Doe v. Thomas, 9 B. & C. 288; 
 
 Turnstallv. Trapses, 3 Sim. 300; Eaton Talbot v. Tipper, Salk. 427; Rogers v. 
 
 v. Sanxter, 6 Sim. 517; Skeeles v. Shearly, Humphreys, 4 A. & E. 299. 
 
 3 M. & Cr. 112. (h) T. v. T. 
 
 (6) Ray v. Pung, 5 B. & A. 561, 5 (i) R. v. H. 
 
 Mad. 310. (J) Admitted (in effect) D. v. T., 
 
 (c) Lee v. Olding, 2 Jur. N. S. 850; (p. 294 / 2-5). 
 
 Sug. Pow. 78. {*) D. v. 7\; T. v. T. 
 
 (d) Sd. Briugloe v. Goodson, 4 Bing. (I) Sug. Pow. 489. 
 
 N. R. 726. (m) Bringloe v. Goodson, 4 Bing. N 
 
 (e) Authorities in Sug. Pow. 488 (k). R. 726; Sug. Pow. 54. 
 
 (f) Sd. Bradshaw v. Hunter, 3 Vez. (h) 1-2 Vic, c. 110, s. 13; ante, p. 
 189, interpreted with reference toib.260. 335 (a). 
 
 46
 
 362 PRIORITY DEPENDING ON INTENTION. 
 
 however attach on the Rent, Purchase money, or Property 
 acquired (a) (i)). 
 
 But even this rule is precluded by that (b) which prefers 
 a previous disposition from him who exercises the power. 
 
 (i) This is by the rule discussed above (c). 
 
 (a) Sug. Pow. 483. (c) Ante, p. 331 (e)-332 (»> 
 
 (6) Ante, p. 350. 
 
 *
 
 ( 303 ) 
 
 CHAPTER XUV. 
 
 PRIORITY BY POSITIVE LAW. 
 
 Many powers of disposition have been conferred by law, Enumeration 
 and I propose (before considering in what cases limitations conferred by 
 under them displace those subsisting in the property) to Law * 
 insert a very short, but I trust, exhaustive, statement of 
 them. 
 
 Several persons and bodies are authorized by the legis- 
 lature to dispose, under certain circumstances, of property 
 in which they have no interest, or but a limited interest, or 
 which they hold in trust, or of property which they are, by 
 disabilities, incapacitated for otherwise disposing of. — 
 Thus : — 
 
 The Crown is entitled to sell the lands of an Accountant 
 to the crown (a), even after his death (b), for the satisfaction 
 of arrears ; but not as against a purchaser for value in good 
 faith (c) becoming such before the commencement of the ac- 
 countancy (d). 
 
 Municipal Corporations are authorized to dispose of 
 lands for Sailors' Homes (e) ; and (in England) for Working- 
 men's Dwellings (/) ; and for other purposes (g) ; and (in 
 England) to sell Advowsons (h). 
 
 The Ecclesiastical Commissioners for England (i) are 
 authorized to make certain dispositions, especially Leases. 
 
 (a) 13 EL, c. 4, s. 1,4,8, 10, 11, 12, 
 (Ruff. 1, 5, 10, 13, 14, 15); 25 Geo. Ill, 
 c. 35, (Eng.); repealed as to Receivers 
 of Customs, 6 Geo. IV, c. 105, s. 5. 
 
 (b) 27 EL, c. 3, s. 1, 2. 
 
 (c) s. 4. 
 
 (d) Authorities cited Sug. V. P. 
 (14th Ed.) 544 (u-x). 
 
 (0 17-18 Vic , c. 104, s. 546. 
 CO 37-8 Vic, c. 59 (Eng ) 
 (</) Below p. 3G8, 309. 
 
 (A) 1-2 Vic, c. 31 (E.) ; 5-6 Wm. IV, 
 c. 76 (E.J, s. 139; 6-7 Wm. IV, c. 77 
 (E.), s. 26; c. 104, s. 3. 
 
 (i) 23-4 Vic, 124 (Bishop's Lease), 
 s. 8 ; 29-30 Vic, c. 1 1 1 (No. of Com- 
 missioners), s. 2 ; 19-20 Vic, c. 55; 
 58 Geo. Ill, c. 45 (superfluous lands), 
 s. 51 ; 59 Geo. Ill, c. 134 (same), s. 34; 
 3 Geo. IV, c. 72, s. 34 ; 3-4 Vic, c. 60 
 (same), s. 19; 4-5 Vic, c. 38 (same), s. 
 19.
 
 364 PRIORITY BY POSITIVE LAW. 
 
 The property and powers of the Ecclesiastical Commis- 
 sioners for Ireland are transferred to the Irish Church 
 Commissioners, and the law (a) on the subject seems to be 
 still in force. 
 
 Ecclesiastical persons and Charity Trustees are author- 
 ized to exercise, with certain consents, the powers of the 
 Agricultural Holdings Act (b). 
 
 An Incumbent (c) (and during vacancy the Bishop (c)) 
 is authorized to sell mortgage or exchange a Parsonage or 
 Glebe. 
 
 Life tenants (d), Corporations (e) (Ecclesiastical or Lay), 
 and other Ecclesiastical persons (/) are authorized to make 
 Leases. 
 
 The sale of Tithe Rent Charge in Ireland to the owner 
 of the lands charged therewith is (g) authorized. 
 
 The Governors of Queen Ann's Bounty are authorized to 
 Sell Superfluous lands (h), and to Exchange lands (i). 
 
 The Inclosure Commissioners are authorized to Parti- 
 tion (/) or Exchange (j) lands in England, transferring 
 the limitations and incumbrances (except Land-tax (k)) of 
 the share or land given to that taken in partition (j) or 
 exchange (j). The Land Judges in Ireland are authorized 
 to do the same as to lands in Ireland (/). 
 
 Local Inclosure Commissioners are authorized to make 
 certain Mortgages (m), Leases (m), Sales (n) and Ex- 
 changes (0). 
 
 («) Contained in the Statutes in the (g) 32-3 Vic, c. 42, s. 32; 35-6 Vic, 
 
 Government Index (4th Ed.) at foot c. 90. 
 
 of page 430. (h) 2-3 Vic, 0. 49, s. 15, 16, &c 
 
 (b) 38-9 Vic, c. 92, s. 48-50; 39-40 (i) 1 Geo. I (st. 2), c 10, s. 13; 43 
 Vic. c. 74. Geo. Ill, 0. 107, s. 2. 
 
 (c) Stats, in Govt. Index (4th Ed.) (j) Government Index p. 568 "Inclo- 
 p. 377 ; and see 5-6 Vic, c. 26, s. 3, 13. sure" 3 «. 
 
 (d) 40-1 Vic, c 18, s. 46-9, 54. (k) Cooch v. Walden, 46 L.J. Ch. 639. 
 (c) Stats, in Govt. Index, p. 605 (/) 21-2 Vic, c 72, s. 79-85; 40-1 
 
 (E.) , 606 (Ir.) Vic, 0. 57, s. 7, 21 (7), 39. 
 
 (/) 5-6 Vic, c 27 (E.); 6-7 Wm. IV. (m) 6-7 Wm. IV, c 1 15, s. 30, 31. 
 0. 115 (E.), s. 31; 24-5 Vic, c. 105 (n) s. 46, 47; 8-9 Vic C. 118, s. 
 (E.) ; 25-6 Vic, 0. 52 (E.); 5-6 Vic, c 134-6, 142-4; 15-16 Vic., c 79, s. 4, 
 108 (E). 11, 12, 19. 
 
 (o) s. 35.
 
 PRIORITY BY POSITIVE LAW. 365 
 
 Sanitary Authorities are authorized to Purchase and Let 
 lands (a). 
 
 The Sewers Commissioners (b), and the governing bodies 
 of Towns in Ireland (c), are authorized to purchase lands. 
 
 The Masters of Hospitals are authorized to grant 
 Leases (d). 
 
 The Harbour Commissioners in Ireland are authorized 
 to let lands there for Fishery purposes (e). 
 
 Prison authorities in England are authorized to purchase 
 land there for Prisons (/), and to sell unnecessary 
 prisons (g). 
 
 Grand Juries in Ireland are authorized to sell or exchange 
 old Court-houses, Jails, &c, there (h). 
 
 The Lord Chancellor is authorized to sell certain 
 Advowsons (i). 
 
 The Chancery Division is authorized to deal with 
 property in many cases (J): — for example, to sell (k) or 
 mortgage (I) an Intestate's property for payment of his 
 debts; to authorize (m), and in some cases to effect (m), 
 Leases (m) and Sales (in) of Settled Estates under circum- 
 stances too clearly set forth in the act to need repetition 
 here; to authorize or direct certain dispositions of the 
 estates of persons under disability (n); and to sell (o) or 
 partition (p) land held in undivided shares, unless there be 
 a trust overriding the entirety (q). 
 
 (a) 38-9 Vic, c. 55 (E.), s. 175-8; and "Chancery Court, Ireland" in the 
 
 28-9 Vic, c. 75 (Ir.), s. 7; 30-1 Vic, Government Index, 
 
 c. 113,s.4; 37-8 Vic, c. 93 (Ir.), s. 27- (*) 11 Geo. IV- Wm. IV, c 47; 11- 
 
 31, 66. 12 Vic, c. 87. 
 
 (6) 24-5 Vic, c 133 (pt. 1). (/) 2-3 Vic, c. 60. 
 
 (c) 34-5 Vic, c. 109, s. 4. (m) 40-1 Vic, c 18. 
 
 (d) 14 EL, o. 14 (E.) And see, as («) 1 Geo. IV-1 Wm. IV, c 65. As 
 to leases by corporations in general, to Ireland, same and 5 Vic, c. 22; and 
 below p. 368 (p). as to Renewals in Ireland, 1-2 Vic, c 
 
 (e) 9-10 Vic, c 3 (Ir.), s. 51 ; c. 80 62. 
 
 (Ir.), s. 5. (o) 31-2 Vic, c. 40; 39-40 Vic, c. 
 
 (f) 28-9 Vic, c. 126, s. 44-5. 17; 21-2 Vic, c. 72 (Ir.), s. 79-85; 40- 
 (0) 28-9 Vic , c. 126, s. 46-7; 40-1 1 Vic, c. 57 (Ir.), i. 7, 21 (7), 39. 
 
 Vic, c. 21, s. 33-4. G>) 31 H. VIII, c 1 ; 32 H. VIII, c. 
 
 (A) 48 Geo. Ill, c. 113. 32, 7 Ann., c. 18. 
 
 • (i) 26-7 Vic, 0. 120. (?) Taylor v. Grange, L. R. 13 C. D. 
 
 (j) See "Chancery Court, England" 223.
 
 366 PRIORITY BY POSITIVE LAW. 
 
 The Landed Estates Court (Ireland) has similar powers 
 (ii). 
 
 Certain Universities (b) and Colleges (b) are authorized 
 to sell advowsons. 
 
 Companies who have purchased lands are authorized to 
 sell Superfluous lands (c). 
 
 Companies are authorized to issue mortgage-debentures 
 on lands in England (d). 
 
 Waterworks Companies are authorized to sell and lease 
 lands in England to Sanitary authorities (e). 
 
 Railway Companies are authorized to sell the lands of 
 an abandoned undertaking (/). 
 
 Drainage Boards in Ireland are authorized to purchase 
 lands there and to sell superfluous lands (g). 
 
 Parishes are allowed to deal with parish property (h), 
 and with lands appropriated for the supply of materials for 
 roads (*). 
 
 The trustees of the Presbyterian Church in Ireland are 
 authorized to dispose of superfluous lands (j). 
 
 Trustees and others interested in lands held under 
 Ecclesiastical Corporations are authorized to sell (k) or 
 mortgage (k) ; Chanty Trustees (I) and Trustees of Schools 
 (m) to sell &c; Fiduciaries of persons under disability to 
 
 (a) 21-2 Vic, c. 72, s. 79-85. (d) 28-9 Vic, c 78; 33-4 Vic, c.20. 
 
 (6) 3-4 Vic, c 113, s. 69, 70; 23-4 (e) 38-9 Vic, c 55, s. 63. 
 
 Vic, c 59, s. 7-10. If) 13-14 Vic, c 83, s. 27; 30-1 
 
 (c) 8 Vic, c 18, s. 127. As to what Vic, c 127, s. 31. 
 
 lands are deemed superfluous see Metro- (g) 26-7 Vic, c 88, s. 20-2 
 
 politan D. R. Co. r. Cosh, L. K. 13 C D. (h) 5-6 Vic, c 18. 
 
 607 ; Norton v. London <$• N. W. R. Co., (t) 39-40 Vic, c 62. 
 
 L. R. 13 C. D. 268; Mulliner v. Midland (J) 34 Vic, c 24, s. 17. 
 
 R. Co., L. R. 11 C. D. 611 ; lietts v. (*) 23-4 Vic, c 124, s. 35-7. 
 
 G. E. R. Co., L. R. 3 Ex. D. 182; (/) 16-17 Vic., c 137 (E.), s. 21 24- 
 
 Hooper v. Bourne, L. R.3 Q. B. D. 358; 6 (consents); 18-19 Vic, c 124 (E.), 
 
 Great Wn. Co. v. May, L. R. 7 H. L. s. 29-39; 30-1 Vic, c 54 (Ir.); 32-3 
 
 283; Borne v. Lymington R. Co., (as to Vic, c 110 (E.), s. 12. 
 
 land to which the act does not apply), (m) 4-5 Vic, c 38 (E.), s. 14; 18-19 
 
 31 L. T. 167 ; City of Glasgow R. Co. v. Vic, 0. 131 (E.). 
 Caledonian R. Co., (same), L. R. 2 Sc. 
 160.
 
 PRIORITY BY POSITIVE LAW. 367 
 
 renew (and accept renewals of) Leases (a), and otherwise 
 to act on behalf (a) of such persons; Trustees and 
 Executors to sell (b), mortgage (b), or lease (b), land 
 charged by will with debts legacies &c. ; Trustees of 
 renewable leaseholds to obtain renewals (c); Trustees in 
 general to give receipts (d) ; Mortgagees of hereditaments 
 to scll(f); Trustees having a power of sale or exchange (/), 
 and Mortgagees selling (g), to exercise subsidiary authorities 
 (some of which (h) extend to other dispositions as well as 
 to sales); Trustees &c. exercising a power of exchange to 
 mortgage for the purpose of raising money for equality of 
 exchange (*) ; and Trustees (/) and Mortgagees (k) having 
 power to sell lands to include minerals in such sales. 
 
 Committees of Lunatics' Estates are authorized to deal 
 with and dispose of their property (/), and the Chancery 
 Division to direct such dispositions (/); and Guardians 
 appointed to weakminded persons in Ireland have received 
 some similar powers (m). 
 
 The Personal representative of a Mortgagor is authorized 
 to reconvey under circumstances (»). 
 
 Persons authorized to dispose of property amongst the 
 members of a class may exclude some of them (o). 
 
 Certain Public Bodies are authorized to Charge heredit- 
 
 (o) 1 1 Geo. IV- 1 Wm. IV, c. 65 (E.), s. (</) 23-4 Vic, c. 145, s. 1 1 - 1 6 , 24 ; 
 
 11, sqq., partially repealed by 34 Vic, 25-6 Vic, c 108, s. 2. 
 
 c. 22, (in the Schedule to which the (K) Those conferred by 25-6 Vic, 
 
 word "except" seems to be mistakenly c 108, s. 2. 
 
 inserted) ; 5-6 Wm. IV, c. 17(1), intended (i) 23-4 Vic , c. 145, s. 9. 
 
 toberepealedby34 Vic, c 22, but (by (j) 25-6 Vic, c. 108; extended, 
 
 wrong framing of the Schedule) not Wynn, L. R. 16 Eq. 237. 
 
 effectually repealed. (i) Wilkinson, L. R. 13 Eq. 634; 
 
 (6) 22-3 Vic, c. 35, s. 14-18. Beaumont, L. R. 12 Eq. 86. 
 
 (c) 23-4 Vic, c. 145, s. 8-10. (0 16-17 Vic, o. 70 (E.), s. 108- 
 
 (d) 22-3 Vic, c 35, s. 14-18, 23; 147; 18-19 Vic, c 13 (E ); 25-6 Vic, 
 23-4 Vic, c 145, s. 12, 29. c 86 (E.), s. 12-17; 34-5 Vic, c. 22 
 
 («) 23-4 Vic, c. 145, s. 11; 38-9 (Ir.), s 60-96. 
 
 Vic, c. 87, s. 26-7. As to mortgages (m) 34-5 Vic, c. 22 (I.), s. 107. 
 
 by underlease Eiatl v. Hillman, 19 W. (n) Ante, p. 53 («-#). 
 
 R. 694. (o) 37-8 Vic, c. 37, s. 1 ; not retro- 
 
 (f) 23-4 Vic, C. 145, S. 1-7, 10; 38- active Moynan v. Moynan, L. R. 1 C. 
 
 9 Vic, c 87, s. 26-7 ; 25-6 Vic, c. 108, D. 382. 
 s. 2.
 
 3G8 
 
 PRIORITY BY POSITIVE LAW. 
 
 aments with advances made by them (a); and, on default 
 of payment, to sell or sometimes mortgage, the same {a). 
 
 Partial owners, and in some cases persons under 
 Disability, Fiduciaries, Corporations, &c, are authorized 
 to make grants for Burial places &c. (b), Churches (c), 
 Parsonages (d), and various Ecclesiastical purposes (d), for 
 Literary (e), Scientific (/), Educational (g) and similar (h), 
 purposes; for the War Department (i), for ranges for the 
 Volunteer forces in England (j), for the Yeomanry (k), for 
 Greenwich Hospital (/), and for Harbour authorities in 
 Ireland (m); to procure the Sale or Mortgage of allotments 
 in which they are interested under local Inclosures (n) ; to 
 Lease lands (o) ; to sell lands in Ireland (p) to the Tenants 
 
 (a) 11-12 Vic, c. 99, s. 6-8, (Inclo- 
 sure rates) ; 23-4 Vic, c 59 , s. 3, 7, &c ; 
 3-4 Vic, c. 113, s. 69, 70; 21-2 Vic, 
 c. 44; 23-4 Vic, c. 59; 31-2 Vic, c. 89, 
 s. 2; 33-4 Vic, c 46 (Public Works 
 in Ireland), s. 48 ; 5-6 Vic, c. 98 (Loans 
 for Prisons); 28-9 Vic, c. 126 (same). 
 38-9 Vic, o. 55 (rates by Sani- 
 tary authority), s. 233-4; 37-8 Vic, c 
 93 (same in Ireland), s.40-1 ; 27-8 Vic, 
 c. 114; See also the following heads in 
 the Government Index " Drainage of 
 land," "Drainage of land (Ireland)," 
 "Labourers," "Labourers (Ireland)," 
 " Local authority," " Local Board," 
 "Lunatic (Ireland) "(charge of estates 
 of Lunatics), " Manufacturing districts," 
 "Metropolis (p. 652), ''Midland Great 
 Western R. Co.," " National debt," 
 "Public Works loans," " Queen Ann's 
 Bounty," " Railway" (l,b.) "Reforma- 
 tory." " Sewers Commissioners," "Suc- 
 cession duty (as to which see ante, p. 
 335 t-m)" "School-boards" (borrowing 
 powers), "Land-tax" (p 603). 
 
 (6) By the Crown 10 Geo. IV, c 50, 
 s. 45; By the Duke of Cornwall, 26-7 
 Vic, c 49, s. 36; 7-8 Vic, c. 65, s. 26; 
 By others 30-1 Vic, c. 133, s. 5-6; 31-2 
 Vic, c 47; 36-7 Vic, c 50 (E.). 
 
 (c) By the Crown 1 Geo. IV, c. 50, 
 s. 45; By the Duke of Cornwall, 1-2 
 Vic, c. 107, s. 8-9; 26-7 Vic, c. 49, s. 
 36; 7-8 Vic, c 65, s. 26; By others 
 36-7 Vic, o. 50 (E.) 36-7 Vic, c 50 
 (E.) ; By Crown, Duchy, and others, 58 
 
 Geo. Ill, c.45 (E.), s.34-6; 3 Geo. IV, 
 o. 72 (E.), s. 1-2. 
 
 (d) 5-6 Vic, C 26 (E.), s. 12; 36-7 
 Vic, c 50 (E.); 18-19 Vic, c. 39 (I.) 
 (Leases); 38-9 Vic, c. 1 1 (I.) (Leases); 
 36-7 Vic, o. 50 (E.) 
 
 (e) 17-18 Vic, c. 112. 
 
 (/) 17-18 Vic, c 112; 26-7 Vic, c 
 65, s. 32-3; and for the Science and 
 Art department, 38-9 Vic, c. 68. 
 
 (9) 17-18 Vic, c. 112. Schools in 
 England 4-5 Vic, c. 38; 7-8 Vic, c. 
 37; 12-13 Vic,c49; 14-15 Vic, c. 24. 
 Schools in the United Kingdom, 33-4 
 Vic, c 75, s. 20-1 ; 36-7 Vic, c. 86, s. 
 15. Ireland only, 50 Geo. Ill, 0. 33; 
 4 Geo. IV, c. 86, s. 10; 53 Gee III, 
 c 79. 
 
 (h) 17-18 Vic, c. 112. 
 
 (i) Government Index, head " War 
 Department." [s. 17. 
 
 (j) 26-7 Vic, c. 65; 32-3 Vic, 0. 86, 
 
 (k) 34-5 Vic, c 86, s. 17. 
 
 (0 25 Geo. II, c. 42; By the Crown 
 12-13 Wm. Ill, c 13. 
 
 (m) 9-10 Vic, c. 3, s. 31-51. 
 
 (n) Ante, p. 364 (m-n) 
 
 (0) 40-1 Vic, c 18, 8. 46-9, 54; 23- 
 4 Vic, c. 153 (I.); 33-4 Vic, c.46 (I ), 
 s. 26-30 ; Leases by Tenants in Tail, 
 32 Hen. VIII, c 28 ; Leases for Mills 
 in Ireland, 14-15 Vic, c. 7; Leases of 
 Mines there 46 Geo. Ill, 0. 71 ; 11-12 
 Vic, o. 13. 
 
 (p) 23-4 Vic, c 46 (I.), s. 32 sqq.
 
 PRIORITY BY POSITIVE LAW. 
 
 3G9 
 
 thereof; to agree with them respecting compensation for 
 disturbance (a) &c. ; to make Leases (a) to them; to make 
 Fee-farm-Grants to them in substitution for perpetually 
 renewable leases for lives (b); and to impose charges on 
 land in England or Ireland for its Improvement {c), for 
 erecting Mansion houses (d), for erecting or subscribing to 
 Waterworks (e), and for Canals (/), and Railways (/). 
 
 Regulations which, though expressed in the form of 
 restrictions, might be more aptly formulated as powers and 
 preceded by a general clause invalidating dispositions made 
 otherwise than in exercise of those powers, have been 
 imposed upon dispositions made by the Crown (g); the 
 Duke of Cornwall (h); Corporations, (Municipal (*), or 
 Ecclesiastical (_/)), especially as to leases (k); the Doctors 
 of Civil Law (/) ; Bishops (m) ; Greenwich Hospital (n) ; In- 
 dustrial and Provident Societies (0) ; Friendly Societies (p) ; 
 
 (a) 23-4 Vic, c. 46 (I.), s. 26-30. 
 (6) 12-13 Vic, c. 105 (I.); 31-2 Vic, 
 C. 61 (I.). 
 
 (c) By Rent- charge before 29 July 
 1864, 12-13 Vic, c 100; by Reut- 
 charge since that day 27-8 Vic, c. 1 14, 
 s. 51. As to Ireland same Acts, and 
 also 10-11 Vic, o. 32, s. 22, c. 46; 23- 
 4 Vic, c 153. 
 
 (d) 33-4 Vic , c. 56; 34-5 Vic, C.84. 
 («)40-l Vic, o. 31, 8. 8. 
 
 (f) 27-8 Vic ,c 114, s. 78-89. 
 
 (?) 1 Hen. IV, c 6; 2 Hen. IV, c. 
 2; 6 Hen. IV, c. 2; 18 Hen. VI, c 6; 
 4 Hen. VII, c 14; 6 Hen. VIII, c. 15; 
 1 Ann, c 1 (Ruff. St. 2, c. 7), s. 5; 10 
 Ann., c 28 (Ruff., c 18); 10 Geo. IV, 
 c 50; 1-2 Vic, c. 95, s. 4; 3 Geo. IV, 
 c 63 (I.), s. 12-13; and, as to enfran- 
 chising Copyholds 4-5 Vic, c 35 (E.), 
 s. 97; 21-2 Vic, c 94 (E.), s. 41, &c; 
 and the head " Woods and Forests" in 
 the Government Index; and, as to the 
 Duchy of Lancaster, the Government 
 Index, p. 597-823; 39-40 Geo. Ill, c. 
 38; 3 Geo. IV, c 63 (I.), s. 12, 13; 6 
 Geo. IV, c 18; and, as to the enfran- 
 chisement of Copvholds, 4-5 Vic, c 35 
 (E.), s. 97; 21-2 Vic, c 94 (E ), s. 41, 
 &c; 25-6 Vic, c 61, s. 36; 38-9 Vic, 
 c 92 (Agricultural Holdings), s. 45-7. 
 
 (K) Acts in Govt. Index, App. Ill, p. 
 822; 38-9 Vic, c. 92 (Agricultural 
 Holdings), s. 45-7. 
 
 (i) 5-6 Wm. IV, c 76 (E.), s. 94; 6- 
 7 Wm. IV, c J 04 (E), s 2; 8-9 Vic, 
 C. 18, s. 15; 23-4 Vic, c 16, S. 3, 4, 5, 
 8, 9; 3-4 Vic, c 108 (I.); 6-7 Vic, c. 
 93 (I.), s. 9 i purchase). 
 
 (J) As to England: Stats, in Govt 
 Index, (4th Ed.), p. 449. As to Ireland: 
 Stats there foot of p. 422. 
 
 (A) 28 Hen. VIII, c 1 1, s. 7, 8; 32 
 Hen. VIII, o. 28, s. 4, 8; 5 Geo. Ill, c 
 17; 4-5 Vic, c. 39 (E.), s. 18,21-6,29; 
 5-6 Vic, c 26 (seemingly E.) s. 7; 5- 
 6 Vic, c. 1 08 ( E.) ; 2 1 -2 Vic, c 57 (E.) ; 
 23-4 Vic, c 124 (E.), s. 8, 22-3, 41; 
 24-5 Vic, c 105 (E.); 25-6 Vic, c 52 
 (E.); 28-9 Vic, c 57 (E.); 6-7 Wm. 
 IV, c 20 (E.); 53 Geo. Ill, c 92 (I.); 
 and some of the other stats, in the Govt. 
 Index , p. 605-6. 
 
 (/) 20-1 Vic, c 77, s. 116-117. 
 
 (m) 23-4 Vic, c 124 (Lease), s. 8; 
 38-9 Vic, c.92 (Landlord and Tenant), 
 s. 48; 5-6 Vic, c.26 (Residence), s. 1. 
 
 (n) 18 Geo. Ill, c 29 (Lease); 28-9 
 Vic, c 89 (Advowsons), s. 44. 
 
 (o) 39-40 Vic, c 45, s. 12. 
 (i>)38-9 Vic, c. 60, s. 16. 
 
 47
 
 370 
 
 PRIORITY BY POSITIVE LAW. 
 
 Priority of 
 dispositions 
 under powers 
 conferred by 
 law. 
 
 the Universities in England (a)\ and Companies (b). 
 
 The compulsory purchase of land is authorized for 
 Railways (c) and similar undertakings (c); and, (under 
 circumstances,) for the Improvement of Towns (d); for the 
 War Department (e) ; and for the Sewers Commissioners (/). 
 
 The purchase of land in Ireland for Parks (g), and the 
 sale of superfluous land so purchased (k), are also provided 
 for. 
 
 The power of barring entails, and the power of certain 
 courts and offices to confer perfect Titles, might be also 
 enumerated; but these I reserve for a separate examin- 
 ation (h). 
 
 The priority of limitations under a Power conferred by 
 law is regulated by the same principles (*') with that of 
 limitations under a power conferred by a disposition. The 
 general principle is that they displace the interests of those 
 for whose benefit the power was conferred (i), and some 
 statutes contain special provisions on the subject. Thus: 
 Trustees and Mortgagees exercising the powers conferred 
 by Lord Cranworth's act (j) displace those interests only 
 which the settlor or mortgagor could have authorized them 
 to displace (k). And Rent-charges and other charges for 
 securing the repayment of advances made by Trustees, 
 Partial Owners, or Incumbrancers {I), or out of Private (m), 
 or Public (n), Moneys, for the Improvement of land; and 
 
 (h) Next Chapter. 
 (i) Ante, Ch. XLIII. 
 
 (a) 3-4 Vic, c. 113, s. 69-70; 23-4 
 Vic, c. 59; 21-2 Vic, 0. 44; 31-2 Vic, 
 c. 89, s.2; 19-20 Vic.c. 88 (Cambridge); 
 40-1 Vic, c 48 (Cambridge), s. 52-5, 
 61; 18 El., c 6 (Leases). 
 
 (6) See Mullintr v. Midland R.Co., L. 
 R. 11 CD. 611. 
 
 (c) 8-9 Vic, c 18; 23-4 Vic, c 106; 
 30-1 Vic, c 127, s. 36; 32-3 Vic, c 
 18 (Westminster), s. 3; 13-14 Vic, c 
 43 (Lancaster), s. 12; 17-18 Vic, c.82 
 (same), s. 13; 14-15 Vic, c. 70; 23-4 
 Vic, 71; 27-8 Vic, c 71; 31-2 Vic, 
 c. 70. 
 
 (d) 10-11 Vic, c. 34. 
 
 (e) See Government Index, head 
 " War Department." 
 
 (f) 24-5 Vic, c. 133, pt. 1. 
 
 \g) 32-3 Vic, c 28; 35-6 Vic, c. 6. 
 
 (j) 23-4 Vic, c. 145. 
 
 (Jfc) s. 33.' 
 
 (0 8-9 Vic, c 56, s. 6. 
 
 (m) As to advances before 29th July 
 1864:— 12-13 Vic, c. 100,8.10,11,13, 
 14. As to advances since that day : — 
 27-8 Vic, c. 114, s. 59. 
 
 (jO 8-9 Vic, c. 56, s. 6; As to Ire- 
 land (besides the above act), 9-10 Vic, 
 c. 4, s. 1; 10-11 Vic, c. 32, s.38; 23-4 
 Vic, c. 153; 26-7 Vic, c 88, s.44, 45, 
 48, 49; 29-30 Vic, c 27 (Recorded 
 Land); 29-30 Vic, c. 40, s. 4, 6; 32-3 
 Vic, c. 72, s. 5; 37-8 Vic, c 32, s. 3; 
 28-9 Vic, c. 52, s. 4; 32-3 Vic, c. 72, 
 extended by 37-8 Vic, c. 32, s. 3.
 
 PRIORITY BY POSITIVE LAW. 371 
 
 loans made by the Public Works Loan Commissioners (a) 
 for various purposes, (and amongst others for Glebe Lands 
 in Ireland (b)); take priority over other charges except 
 certain specified ones. But the powers conferred by the 
 Settled Estates act (c) displace all inconsistent interests (d), 
 except those of the Crown (e) and except unbarrable entails 
 (/) ; and except that Leases made by partial owners without 
 application to the court (g) displace only the interests 
 derived under the statute (h) disposition (h) or agreement (h) 
 by which such partial interests were carved out (&'), and 
 these only if the settlement was made since November, 
 1856 (/); and that a Lease made by a Husband displaces 
 only his Wife's estate (i), and that perhaps only if the mar- 
 riage took place since that day (k). However the court is 
 directed (I) not to authorize any further disposition than the 
 settlor might have authorized. 
 
 A loan to a Company, made on the security of specific 
 assets for the purpose of keeping the company afloat, takes 
 priority over a mortgage of the general undertaking (m); 
 and the dedication of land for Artizans' or Labourers' 
 Dwellings under the acts relating thereto bars all ease- 
 ments (11) inconsistent with it (o). 
 
 And finally: the Crown is entitled, in respect of its lien 
 (p) on the lands of its Accountants (p), to priority over a 
 disposition made after the commencement of the account- 
 ancy, though before the debt is contracted (q). 
 
 («) 38-9 Vic, c. 89, s: 18; 39-40 (A) 40-1 Vic, c. 18, s. 2 (I). 
 
 Vic, c. 31, s. 7. (i) s. 47. 
 
 (6)33-4 Vic, c 112, s. 6; 34-5 Vic, (j) s. 57, proviso, 
 
 c. 100, s. 5, 9. (*) See the proviso after s. 57. 
 
 (c) 40-1 Vic, c 18. (/) s. 39. 
 
 (d) s. 40 restricting s. 39; ShephearcTs (m) Re Hamilton's W.I. W. e. Pit- 
 Estate, L. R. 8 Eq. 571. man, L. R. 12 C. D. 707. 
 
 («) This follows from the principle (n) For definition of "Easement," 
 
 of re Henley, L. R. 9 C. D. 481 ; 6 ante, p. 8, n. (1). 
 
 Thomas & Frazer's Coke's Rep. 141, (0) 38-9 Vic,c 36, s. 20. 
 
 138 n. (E.) unless the contrary he in- (p) Ante, p. 334 (/). 
 
 ferred from the last clause in s. 55. (7) 13 EL, 0. 4, s. 1, interpreted by 
 
 (f) s. 55. the authorities cited in Sug. V. P. 544 
 
 (9) Under s. 46. («*-*•)•
 
 ( 372 ) 
 
 CHAPTER XLV. 
 
 PRIORITY BY BARRING ENTAILS, &C. 
 
 Nature of the 
 right to bar an 
 entail, &c. 
 
 Bar of Fee 
 Conditional. 
 
 Bar of Entail. 
 Generally. 
 
 The right to bar the interests lying behind a Fee Con- 
 ditional (a) or an Entail (b) involves ability to dispose of 
 interests not vested in the disponor, and might, therefore, 
 be fitly included amongst Powers of disposition, but, as it is 
 not commonly so termed, I have reserved it for separate 
 consideration. 
 
 A disposition of property held in Fee-conditional bars 
 the disponor's Issue (c). It also bars the Possibility of 
 Reverter (c), if issue inheritable have been (c) or are 
 afterwards (c) born. 
 
 A disposition of property held in Tail displaces the estate 
 tail (d) and interests &c. lying behind it (d) ; whether the 
 subject be a Tenement already entailed (e), or Money 
 bound by contract or trust to be spent in purchasing a 
 tenement to be entailed (/), or a tenement bound to be 
 sold for money to be so expended (/); and whether the 
 disponor be a tenant-in-tail (g) or former tenant-in-tail (h), 
 or the trustee in the Bankruptcy or liquidation of a tenant- 
 in-tail (i) or former tenant-in-tail (;'), or the committee 
 (acting under the Court (k)) of a Lunatic tenant-in-tail (/) 
 or former tenant-in-tail (m); and though the disponor be 
 
 (a) For definition of this term see 
 ante, p. 49 in. 
 
 (6) For definition see ante, p. 49 fin. 
 
 (c) 1 Cru. Digest 28, 29; authorities 
 cited ante, p. 49, (r, d). 
 
 (d) England. 3-4 Wm. IV, c. 74, s. 
 15; Ireland, 4-5 Wm. IV, c. 92, s. 12. 
 For what interests &c. are deemed 
 to lie behind it see ante, p. 260 n. (i). 
 
 (e) E., s. 1, 15, 19, 38, 50, 55; I., s. 
 1, 12, 16, 36, 49, 50. 
 
 {f) E., s. 7 1 ; I., s. 63. And, as to 
 Bankrupts, also E., s. 72; I., s. 64. 
 (iO E.,s. 15; I.,s., 12. 
 (h) E., s. 19; I., s. 16. 
 
 (i) E., s. 56, (modified by 32-3 Vic, 
 c. 71, s 25 (4), and s. 125 (7)); I., s. 
 49, (modified by 20-1 Vic, c 60, s.340, 
 and by 35-6 Vic, c. 58, s. 50). 
 
 (j) E., s. 57 (modified as above); I., 
 s. 50 (modified as above). 
 
 (*) Re Fares, L. R. 12 C. D. 333; 
 where the principles on which the 
 Court acts are explained. 
 
 (0 E., s. 15, (extended by the deci- 
 sion in re Pares); I., s 12, (extended 
 by same). 
 
 (m) E., s. 19, (extended by same); 
 I., s. 16 (extended by same).
 
 PRIORITY BY BARRING ENTAILS, &C. 373 
 
 Bankrupt (a) (but subject to the claims of those deriving 
 under the Bankruptcy (#)); and though (when the Bank- 
 ruptcy-trustee is disponor) the Bankrupt is dead at the 
 time of the disposition (b), unless there was a protector of 
 the settlement (c) at the time of his death (b), and even 
 then if such protector consents (b) and issue inheritable 
 are living when he consents (b); and though (when the 
 Bankruptcy-trustee is disponor) the Bankruptcy be in 
 England and the tenement in Ireland (d), or conversely (e). 
 And even the interests of the Crown in tenements in 
 England (/), and some of its interests in tenements in 
 Ireland (g), may be thus displaced. But the disposition is 
 (after the death of the tenant-in-tail) only effectual if 
 (except as to certain leases (h)) the prescribed formalities 
 (i) be observed in respect of it (h), or (under circumstances 
 already (j) stated) in respect of some earlier disposition (k). 
 And a disposition by one whose estate tail was only 
 descendible to issue of a specified husband or wife, who, 
 before the disposition was made, had died without issue, is 
 not thus effectual (/). And certain interests derived by 
 Married Women in England under settlements made before 
 23rd August 1833 (m), or in Ireland under settlements made 
 before 15th August 1834 («), and certain interests of the 
 Crown in tenements in Ireland (0), and such interests in 
 tenements in England as are protected by other statutes (p), 
 .are exempt from being barred. And all interests &c. lying 
 behind (q) the estate tail are thus exempt, (whether a 
 tenant-in-tail (r) or former tenant-in-tail (s) or trustee-in- 
 
 (n) E., s. 64; I., s. 57. ante, p. 126-7. 
 
 (b) E., s. 65; I., s. 58. (j) Ante, p. 354 (/). 
 
 (c) For definition of " Protector," see (i) E., s. 38, 50, 62; I., s. 36, 55. 
 authorities cited below p. 374 (b). (/) E., s. 18; I., s. 15. 
 
 (d) E., s. 60, (modified by s. 69, 72). (m) E., s. 16, 17. 
 
 (e) I , s. 60, (modified by s. 61, 64). («) I , s. 13, 14. 
 (f)E.,s. 15. (o)I.,s. 12. 
 (g) I., s. 12. (p) E., s. 18. 
 
 (A) E., s. 41 ; I., s. 39. (q) As to what are deemed to lio be- 
 
 (i) E., s. 40-54, 56, 59, 73; I., s. 38- hind it see ante, p. 260 n. (i). 
 
 47, 49-52, 65, (in which sections these (r) E., s. 34-37; I, s. 32-5. 
 
 formalities are specified). See also, (*) E., s. 35-7 ; I., s. 33-5.
 
 374 
 
 PRIORITY BY BARRING ENTAILS, &C. 
 
 When made 
 for a limited 
 purpose. 
 
 Bankruptcy or liquidation of a tenant-in-tail (a) or former 
 tenant-in-tail (a) is disponor,) if there be a protector (b) of 
 the same (c) settlement at the time of the disposition, unless, 
 either that protector consent (d) with the prescribed formal- 
 ities (e), or the interest derived under the disposition and 
 the ultimate fee-simple (or perpetual interest) become 
 vested in the same person without any interest (incum- 
 brance or otherwise) intervening between (/), or, (in case 
 of dispositions in Bankruptcy or Liquidation) a time comes 
 during the life of the tenant-in-tail &c, or during contin- 
 uance of his inheritable issue, when there is no longer a 
 protector (g). 
 
 And a disposition made for a limited purpose bars the 
 issue, and the estates lying behind the entail, as effectually 
 as if it were made for the disponee's absolute benefit, 
 (vesting of course the beneficial fee-simple, so far as not 
 covered by the disposition, in the tenant-in-tail, or in those 
 deriving under him (h)); even though an intention to the 
 contrary be expressed (h) ; but only if it purport to dispose 
 of the whole fee-simple for the purpose (h) ; and (when a 
 Bankruptcy-Trustee is disponor,) only if made for value (i). 
 
 (a) E., s. 58 (modified by 32-3 Vic, 
 c 71, s. 25 (4), 125 (7)); L, s. 51, 
 (modified by 20-1 Vic, c 60, s. 340, 
 and 35-6 Vic, c 58, s. 50). 
 
 (6) For definition of " Protector" see 
 E., s. 22-33; I., s. 19-31, re Dudson, L. 
 R. 8 C. D. 628 ; Tufnell v. Borrell, (as 
 to undivided shares), L. R. 20 Eq. 194; 
 ante, p. 50. 
 
 (c) Berrington v. Scott, 32 L. T. 125. 
 
 (d) E., s. 34; I., s. 32. 
 
 (e) E., s. 59; I., a. 51. 
 f/jE.,s.39; I.,s. 37. 
 
 (g) E., s. 60, 61; I., s. 53, 54. 
 
 (ft) E., s. 21; I., s. 18. 
 
 (i) E., s. 58-9, 66; I., s. 51-2.
 
 ( 375 ) 
 
 CHAPTER XLVI. 
 
 PRIORITY DEPENDING ON CERTAINTY. GENERAL VIEW. 
 
 Certainty in the ownership of property is so far regarded Certainty in 
 
 tTfiTI ftTftl 
 
 that he who can trace his title through a clear chain of 
 dispositions and transmissions is, under some circumstances, 
 preferred to an inconsistent claimant, whose title is less 
 certain, or less notorious ; and this preference is generally 
 the result of the acquisition of the Legal estate, which I 
 have already been often obliged to mention, and the nature 
 of which I will now explain. 
 
 The distinction between the Legal and Beneficial estate Legal, distin- 
 arose in this way. Our ancient law, to ensure certainty, Beneficial° m 
 required the observance of certain formalities in the transfer Interest. 
 of tenements (a) : — the only kind of property then important 
 (b). Afterwards (c) the Chancellors began to compel 
 everyone who had (for value) agreed to transfer his estate 
 to another (d), or had admitted himself to be trustee for 
 another (e), or was bound by the high standard of commer- 
 cial morality which the Court of Chancery maintained 
 (and from which it derived its title of "Court of Equity") 
 to admit that another had a better right than himself to 
 the property (/), to recognize that other as owner, and to 
 transfer the estate to him (g), or otherwise deal with it as 
 he might direct (g). But the Courts of Law did not 
 recognize this innovation. They still (h) considered him as 
 
 (a) Co. Litt., 10a; Preamble in 27 {d) Ante, p. 75-6; Fonblanque on 
 
 Hen. VIII, c. 10 (E.), 10 Char. I, sess. Equity (5th Ed.), Bk. 1 Ch. 1, s. 5 (a). 
 
 2, c. 1 (I.); A nte, p. 75 (a-d). Fordes- («) Ante, p. 124(a); 1 Sanders on 
 
 cription of the formalities now in use Uses (4th Ed.), Ch. I, s. 3. 
 
 see below Ch. LI. (f) Fonb. Bk. I., Ch. 2; 1 Fonb. 13. 
 
 (6) Smith's Mercantile Law (8th Ed.), (g) Lewin Tr., 2 (6) ; 1 Sand. Us. 2-3. 
 
 3, 8, 13-14; Lewin on Trusts (5th Ed.), (h) Authorities cited in note in 5 
 
 4. Ea. 139. 
 
 (c) Lewin Tr., 1.
 
 ?>7C> PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 
 
 owner who would have been such if no contract or trust or 
 fraud had existed; and he was therefore distinguished as 
 the holder of the "Legal estate," while the person whose 
 ownership the Chancellor compelled him to admit had the 
 Beneficial or "Equitable" interest (i). But when the Courts 
 of Equity sanctioned this informal method of transferring 
 the ownership, they did not profess to overturn the rules of 
 law, but merely to prevent individuals from using them 
 unjustly (a) and therefore whenever it was impossible to 
 treat the holder of the Legal estate as bound (even by the 
 high standard which these courts had established) to hold 
 it for the benefit of another, they permitted him to retain 
 it. This was the case when he purchased the property 
 and acquired the legal estate from a former owner, without 
 knowing, or having any means of knowing, of a sale &c. to 
 another, which that owner had effected, but which he had 
 never completed by a transfer of the legal estate. The 
 later transferee was then under no conscientious obligation 
 towards the earlier one, and the Court of Equity refused to 
 interfere with him (b), and the result was that he retained 
 the legal and had acquired the Beneficial estate, and so 
 took priority over his competitor. But this statement 
 must, as regards personal chattels, be qualified, at least in 
 point of terminology. Personal Chattels were but of small 
 importance in early times (c), and few decisions were then 
 pronounced respecting them (c). Consequently, after the 
 transition from the feudal to the commercial age, the Courts 
 
 (i) I prefer to speak of him who is deprived of an estate by fraud as having 
 the Beneficial interest, rather than as having a mere right to recover it, because, 
 on recovering it, he is entitled to mesne rates (or intermediate profits (d)); 
 whereas, against an Adverse possessor (holding in good faith), he seems to be 
 entitled to them only from the time when he demands possession (e), or from 
 the time when he commences his action (e). 
 
 (6) 1 Fonb 15, 23-4, especially Cow- (d) Ante, p. 93 (d-g), 280-1, 289 
 
 per v. Cowper, 2 P. W. 753. (h-m), Haygarth v. Wearing, L. R. 12 
 
 (c) Marsh v. Lee, 1 W. T. L. C. (4th Eq. 330; and see Bloomer v. Spittle, L. 
 
 Ed.), 611; Pilcher v. Rawlins, L. R. 7 R. 13 Eq. 431, /S2-3. 
 Ch. 259. («) Lewin Tr. 642 (c-d). 
 
 (c) Ante, p. 375, (b).
 
 PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 377 
 
 of Law found themselves comparatively untrammelled by 
 precedent (a), and therefore adopted into their system 
 many of those principles (i) which, in respect to tenements, 
 could only be admitted by Courts of Equity. This has 
 been borne in mind whenever cases respecting corporeal 
 personal Chattels have been referred to in this work, and 
 must be borne in mind by the student when referring to 
 them ; but it will be sufficient here to say, that when the 
 "property" in a chattel is said to "pass," the meaning 
 seems to be that the Legal estate passes (b); and when 
 "special" is distinguished from "general" "property," the 
 former term seems to denote the Legal estate, and the 
 latter the right, upon performing specified conditions, to 
 call for it (c). 
 
 But the rule that priority can be gained by means of the 
 
 (i) Amongst these may be enumerated the duties of Bailees (d) (some kinds of 
 whom are, virtually, trustees of chattels); the distinction between the Special 
 property (c) (or Legal estate) in a pawn and the General property or right of 
 redemption (<•)); The passing of property by means of a mere Contract (e); 
 Estoppel by conductor representation (/); Avoidance of a disposition for Fraud 
 (<?), Mistake (A), &c (/»); the distinction between a Purchaser for Value without 
 notice and a gratuitous disponee or purchaser with notice, alike in case of a 
 Bill of Exchange (i), Goods comprised in a Bill of Lading (j), and other Goods 
 (fc); the recognition of the Beneficial interests affecting an overdue Bill of Ex- 
 change (/); the separation of the Power of disposition from the ownership (m); 
 the Vendor's Lien for unpaid purchase-money (n)- and his right to retake the 
 goods in the hands of a carrier before they have reached the purchaser, techni- 
 cally called his "right of Stoppage in transitu" (o). 
 
 (a) Ante, p. 375 (6). 
 (6) Ante, p. 20C. 
 
 (c) See Benjamin on Sales (2nd Ed.), 
 2 (i) ( 2 ); 2 Stephens's Commentaries 
 (7th Ed.), 10-11 , 82-3; 1 Sm. L. C. 
 100a; Banco d. Lima v. Anglo- Peruvian 
 Bk., L.R. 8 CD. 170; Shepherd v. Har- 
 rison, L. R. 5 H. L. 116. 
 
 (d) Coggs v. Bernard, 1 Sm. L. C. 
 (3rd Ed.), 82. And see Sir W. Jones 
 on Bailments. 
 
 (e) Benj., 229, 232, &c; Dixon v. 
 Yates, 5 B. & Ad. 340; Shepherd v. 
 Harrison. 
 
 (f) Freeman v. Cooke, 2 Ex. 654; 
 Knights v. Wiffen, L. R. 5 Q. B. 660; 2 
 Sm. L. C. 458. 
 
 (g) Clough v. L. Sp N. W . R. Co., L. 
 R. 7 Ex.26; Benjamin on Sales, Bk. III. 
 
 (A) Taylor v. Bowers, L. R. 1 Q. B. 
 
 ( :i Special 
 Property"). 
 
 (" General 
 Property"). 
 
 Usefulness of 
 the distinction, 
 since by it a 
 Purchaser 
 with the legal 
 estate is freed 
 from secret 
 claims. 
 
 D. 291; Ante, p. 200 (d); Benjamin, 
 Bk. III. 
 
 (i) Byles on Bills (11th Ed.), 162-3; 
 1 Sm. L. C. 262-3. 
 
 {j) See Emilien Mark, L. J. 44 Ad. 
 l4a-16; see A rgentina, L. R. 1 Ad.& Ec. 
 376-7; 1 Sm. L. C. 434a; see Rodger v. 
 C. d'E. d. Paris, L. R. 2 P. C. 405-6. 
 
 (fc) Sd. Cundy v. Lindsay, L. R. 3 Ap. 
 464. 
 
 (/) See Authorities cited in Ex. 
 Swan, L. R. 6 Eq. 359. 
 
 (m) Ogg v. Shuter, L. R. 1 C. P. D. 
 47; Assumed also in Phelps v. Horn- 
 stedt, L. R. 8 Ex. 26, 1 Ex. D. 62. 
 
 (n) Grice v. Richardson, L. R. 3 Ap. 
 319. 
 
 (o) Lickbarrow v. Mason, 1 Sm. L. 
 C. 388. 
 
 43 

 
 378 PRIORITY DEPENDING ON CERTAINTY. GENERAL VIEW. 
 
 Substitute, (in 
 case of choies 
 in action,) foi 
 the legal 
 estate. 
 
 Legal estate, though it originated in accident, is neces- 
 sary with respect to property for whose transfer no registry 
 has been provided. The acquisition of the Legal estate is 
 the only means by which a purchaser or mortgagee of lands 
 in England can have any higher security than the honesty 
 of those with whom he is contracting, unless the lands be 
 in Yorkshire (a) or Middlesex (a), or be Copyhold (b), or 
 have been recorded under the Land Transfer Ads {c). 
 But by acquiring the Legal estate he bars secret claims 
 almost as completely as if he had entered his conveyance 
 on a register. The Legal estate can be almost as surely 
 discovered as a registered estate, because it is (in general) 
 transferred by formal documents (b), any imitation and 
 forgery of which is difficult, and their suppositition improb- 
 able. Indeed the transfer of the legal estate is a more 
 private, and, (at least in the case of a complicated settle- 
 ment,) a cheaper and easier method, than that of Regis- 
 tration, though the doctrine has great defects (many of them 
 remediable (i)) which will appear further on (d). 
 
 But the transfer of the Legal estate in ordinary clwses in 
 action (n) was not allowed (e) until the Judicature acts (/), 
 and is not allowed now, to influence priorities further than 
 that a release from an assignee will effectually extinguish it 
 (/); and yet there is no registry for dispositions of these 
 choses in action, and, consequently, all the uncertainty to 
 which I have alluded would have affected every purchaser 
 of such a chose in action if the Courts of Equity had not 
 determined to confer, under appropriate circumstances, the 
 same priority (in respect of these) which (in respect to tene- 
 
 (i) See my Pamphlet, "An Apology for the present System of Conveyancing," 
 (Longmans, 1870). 
 
 (n) Annuities, Bills of Exchange, and Promissory notes, were excepted ; and 
 other exceptions have since been introduced by statutes (g). 
 
 (a) See below, Ch. XLVIII. eery Pr. (3rd Ed.), 686 sqq.; Lampet's 
 
 (b) See below, Ch. L. Case, 10 Co. 40. 
 
 (c) See below, Ch. LV. (f) 36-7 Vic, c. 66 (E.), s. 25 (6); 
 (rf) See especially, Ch. LI. See also 40-1 Vic, c 57 (I.), s. 28 (6). 
 
 Chh. XXV, XLV11, L, LII, LIII. 
 (e) Ante, 207-8; 1 Maddock's Chan- 
 
 (g) See Ch. L.
 
 PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 379 
 
 ments) they allowed to the holder of the Legal estate (a). 
 Anxious to fix on circumstances analogous to those deemed 
 material in the case of other kinds of property, and finding 
 that the possession of corporeal personal Chattels was (b) 
 a means by which the Legal estate in them could be 
 acquired and priority gained, they determined that know- 
 ledge (c) by the person bound to pay, or having control 
 over, the fund, (or, in certain cases, other appropriate 
 formalities (Z>),) should, as analogous to possession, be equi- 
 valent to the acquisition of the legal estate by him whose 
 claim was first known or accompanied by the prescribed 
 formalities, and should entitle him to priority accordingly (i). 
 
 The question has been much agitated whether the prin- Question:— 
 ciple on which the holder of the legal estate is entitled to reason of the 
 
 priority be, that Equity will not deprive a disponee (for rule b ^ wnicn 
 
 n. purcn&SGrj 
 value and in good faith) of the legal estate to give it to one having the 
 
 of whose claim he had no notice; or, that it will not g e J|ns priority, 
 
 deprive him of any advantage for that purpose. It is clear, extends to a 
 
 • i i i t i- r ii 7-i purchaser 
 
 indeed, that 11 two disponees tor value have equal equity, the having some 
 
 earlier must prevail (e), though the later had no notice of °* h ® r advan " 
 his claim (/), unless the later has acquired some advantage, 
 (as, the Legal estate (g), Possession of the Deeds (i), or 
 Possession (n) of the property,) but the question is, whether, 
 
 (i) Priority as regards the custody of the Deeds is conferred by possession of 
 them (A). An attempt has recently (i) been made to quibble out of this doc- 
 trine, which is now important only as regards discovery, because all other relief 
 can now be obtained (j) without recourse to the principles of Equity jurispru- 
 dence. In one case (fc) before the fusion of law and equity, a purchaser who 
 was in possession of a deed, but not of the property to which it related, was 
 compelled to deliver it up, but in that case the Plaintiff was able to identify 
 the deed, so that the relief administered was perhaps rather concurrent with 
 than auxiliary to that afforded at law. 
 
 (n) Before the Judicature Acts it was laid down that the Courts of Equity 
 
 (a) See next Chapter. and Joyce v. De Moleyus, 2 J. & L. 374, 
 
 (6) See Ch. L. and overruling Strode v. Blackburne, 3 
 
 (c) Lloyd v. Banks, L. R. 3 Ch. 490. Vez. 222. [148. 
 
 (d) Dearie v. Hall, 3 Russ. 12, 23, (i) Thorpe v. Holdsworth, L. R. 7 Eq. 
 48. (j) 17-18 Vic, c. 125, s. 78; 19-20 
 
 (e) See ante, Ch. XLII. Vic, c 97, s. 2; Gen.-Ord. XLII, R. 4; 
 (f)Ante, p. 345 (c). Harrington v. Price, 3 B. & Ad. 170; 
 (g) See next Chapter cases cited in Copinger on Title-deeds 
 (A) Heath v. Crealock, L. R. 10 Ch. 2; Green v. Ingham, L. R. 2 C. P. 525. 
 
 22, following Walwyn v. Lee, 9 Vez. 24, (k) Vorley v. Cooke, 1 Giff. 230.
 
 380 PRIORITY DEPENDING ON CERTAINTY. GENERAL VIEW. 
 
 if he has obtained an advantage other than the legal 
 estate, he will be deprived of it. On this question Lord St. 
 Leonards (a) differed from Lord Westbury (b), and Lord 
 Eldon (c) from Lord Rosslyn (d), while Lord Nottingham 
 (the Father (e) of Equity,) differed, (if the reports (i) may 
 be believed,) even from himself. But, according to the 
 latest case (b), the Legal estate is the only advantage of 
 which a party will not be deprived in favour of an earlier 
 
 would probably not interfere against a purchaser who had been in possession 
 for many years under a Conveyance professing to transfer the legal estate, but 
 which, for reasons unknown to the purchaser, might perhaps not have passed 
 it (/). This distinction seems immaterial since the Judicatnre Acts (y). It is 
 at least clear that the Court will, even against a purchaser for value without 
 notice and having possession, prohibit any injury to (A), or dealing with, the 
 property, until the rights of the parties can be determined ; and will also foreclose 
 a purchaser from any right he may have to relief in equity (i). There is but 
 one decision to the effect that priority is conferred by the mere possession of the 
 property, (viz: a case (j) in which the Court refused to enforce a Judgment- 
 lien against the purchaser of an Equity of redemption). But that doctrine was 
 the expressed ground of the decisions as to title-deeds in two cases (k) always 
 referred to on this question, and was admitted in a more recent one (d) (in 
 which the discovery and delivery of Title-deeds were held to be the right of 
 the party in possession). However, the contrary has more recently (6) been 
 held, in a case which, however, was decided mainly on another ground. 
 In the cases cited ante, p. 345 (c) the purchaser does not seem to have been in 
 possession, but I have not access to Barnard v. Hunter. In the other cases which 
 hare arisen on the subject the purchasers were not in possession. In most of 
 them they were mortgagees. 
 
 (i) He states in one case (0 that the Court will only compel the production 
 of documents to one who has an equitable title, and in another (m) that it will 
 only do so when the Plaintiff has a title at law. But probably the meaning is, 
 that the legal estate is necessary, but not sufficient, to enable the Court to com- 
 pel a purchaser to produce deeds. 
 
 (a) Sug. V. P. (14th Ed.), 795-8; and (as to Lancashire) with 25-6 Vic, 
 Joyce v. De Moleyns, 2 J. & L. 374 c. 42, s. 1 ; 40-1 Vic, o. 57 (I ), s. 27. 
 
 (b) Phillips v. I'hillips, 4 D. G. F. J. (6), compd. with 25-6 Vic, c. 46, S. 3. 
 208. (h) Greenslade v. Dare. 
 
 (c) Walwyn v. Lee, 9 Vez. 24. (i) Colyer v. Finch, 5 H. L. 905, in 
 
 (d) Strode v. Blackbume, 3 Vez. 222. which the principle of decision was 
 
 (e) Lewin Tr. 8 (d). general, though the purchaser there 
 
 (f) Price v. Berrington, 3 Macn & was not in possession. 
 
 G. 486; Greenslade v. Dare, 17 Bea. (j) Lane v. Jackson, 20 Bea. 535. 
 
 502. ( *) W. v. L ; J. v. de M. 
 
 (g) 36-7 Vic , c. 66 (E.), s. 24 (6), (/) Burlace v. Cooke, Freem. 24. 
 compd. with 15-16 Vic, c 86, s. 61, (»») Rogers v. Seale, Freem. 84.
 
 PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 381 
 
 claim (i), unless either the relief sought is merely auxiliary 
 (a), (as, when discovery of Title-deeds and consequent 
 delivery of them is sought (b), because at law their delivery 
 could only be required when the Plaintiff could describe 
 them (c) and not then if the Defendant would pay damages 
 (d)), or the right asserted is a right to set aside a dispo- 
 sition as not binding on the person who made it (e) (n). 
 And it is there added that he will be deprived even of the 
 protection of the legal estate in cases in which equity only 
 assumes concurrent jurisdiction, on the ground, for example, 
 that there is fraud (/), or that the procedure at law is 
 inadequate (g), a point immaterial since the judicature acts. 
 
 It may be inferred from the preceding remarks that, Present 
 until recent (which has also been partial) legislation (h) no fu^I am 5 ° 
 means existed by which a purchaser could be certain that Statement. 
 no one would take the property from him as having a better 
 title than his Vendor. This was so except in two instances, 
 the purchase of a Ship under the Admiralty Court («'), and 
 
 (1) The reason given for this decision (j) was that all dispositions of equitable 
 interests are " innocent conveyances," that is, do not displace estates as wrong- 
 ful conveyances (k) formerly did. But this reason is inapposite, for priority is 
 as frequently conferred by an innocent as by a wrongful Conveyance. However 
 the judgment in (J) is an elaborate one. 
 
 (u) Lord Westburt (/) states (without citing authorities) that the defence 
 of purchaser for value without notice is available when the purchaser has got 
 the legal estate, and when the claim against him is merely a right to avoid a 
 disposition; thus implying that the defence is, in the latter case, available even 
 by one who has no legal estate. But in that case it is not (m) available for 
 one who is not in possession of the property even though he has the legal 
 estate (n). 
 
 (a) Admitted in Phillips v. Phillips, (e) See, as to the nature of this right, 
 
 L. J. 31 Ch. 326a, in which Basset v. ante, p. 199-200. 
 Nosworthy, 2 W. T. L. C. (4th Ed.) 1, (f) 1 Fonb. 12-13 (notes), 
 and Walwyn v. Lee. 9 Vez. 24, were (g) Fonb. Bk, I. Ch. 1, s. 3 (notes), 
 
 referred to this principle. Alt. -Gen. (h) Stated below where I discuss In- 
 
 v. Wilkins, 17 Bea. 285 seems also re- disputable Titles, 
 ferrible to it. (i) Ante. p. 73 (d). [208. 
 
 (6) As in B. v. N.; W. v. L.; Heath (j) Phillips v. Phillips, 4 D. G F. J. 
 v. Crealock. A very unreliable decision (*) Explained ante, p. 351 n. (u). 
 was made on this point in Thorpe v. (/) Phillips v. Phillips, 31 L. J. 
 
 Holdsworth, L. R. 7 Eq. 148. 326b. 
 
 (c) 2 Wms'. Sand. 74b; 15-16 Vic, (m) Ante, p. 345 (e). 
 
 c. 76, form 29. («) In next Chapter, citing Oyilvie v. 
 
 (d) Phillips v. Jones, 15 Q. B. 859. Jeaffreson, 2 Giff. 378.
 
 382 PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 
 
 the purchase of goods in open Market (a) or in London (b). 
 In other cases a purchaser had, and in general still has, 
 to trace back his vendor's title, step by step, testing the 
 validity of each link in the chain, and to continue this 
 process until an epoch so remote that he is willing to run 
 the risk of any adverse claims having arisen still earlier. 
 Formerly, indeed, numerous doctrines existed, (well known 
 to every property lawyer but the statement of which would 
 be a useless parade of learning (c)), by which adverse claims 
 might be barred (d) or an adequate compensation secured 
 (e). But these methods (some of which were but legalized 
 frauds) have been abolished (/), and we are now obliged to 
 investigate titles without any further protection than that 
 afforded by the Statutes of Limitations (g) and other simi- 
 lar laws (g), and the laws relating to Priorities (h). Conse- 
 quently, since the limitation period does not commence 
 against reversionary interests until they fall into possession 
 (i), a purchaser can never be perfectly safe. But yet the 
 law requires him to accept a title traced through 40 (j) 
 years as satisfactory unless some ground for suspicion 
 appears upon the investigation of it (k) ; and his advisers 
 are sometimes content to accept the fact that the title has 
 been, on some former occasion, investigated by a compe- 
 tent conveyancer, as affording a presumption that it was 
 good down to that point, provided that it appear that there 
 
 (a) Sd. Cundy v. Lindsay, L. R. 3 Ap. IV, c. 74, s. 2, in Ireland by 4-5 Wm. 
 
 464b. 1-3. IV, c. 92, s. 2; Warranty as to the 
 
 (6) Chitty on Contracts, (3rd Ed.), heir by 3-4 Wm. IV, c. 27, s. 39, and 
 
 385 (/), 889. 3-4 Wm. IV, c. 74, s. 14; Wrongful 
 
 (c) Some of them are stated in Bus- operation of Feoffments by 8-9 Vic, 
 setv.Nosworthy, 2 W. T. L.C. 1. (See c. 106, s. 6; Power of Life-tenant to 
 also ante, 231 (d), and, as to attendant bar Contingent Remainders, by same, 
 terms, below, next Cbapter.) s. 8; protection by assignment of 
 
 (d) As, by nonclaim on a fine, ante, Attendant Terms, by 8-9 Vic, c. 112. 
 p. 351 n. (n), 352 n..(n); 1 Cruise's (g) Ante, pp. 23-32. 
 
 Digest, 179, 226, 494; 2 same, 110, (/«) Discussed in the following Chap- 
 
 122, 361; 4 same, 334-7; 5 same, 150- ters. 
 
 173, 255, 372. (t) Ante, p. 25-27. 
 
 (e) As, by Warranty. (j) 37-8 Vic, o. 78, s. 1. 
 (/) Fines in England by 3-4 Wm. (*) lb.; Sugd. V. P. 366.
 
 PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 383 
 
 was then no special agreement precluding the then pur- 
 chaser from requiring a perfect title, nor circumstances 
 rendering it probable that he did not require one. But a 
 previous investigation cannot be relied on if the then 
 disposition was made in satisfaction of, or as security for, 
 a then existing debt ; nor even if it was made as security 
 for a fresh advance (for in such a case a title to an adequate 
 part of the property would be sufficient). A previous sale 
 under the Court or by a company is, however, generally 
 treated as raising a presumption that the title was then 
 satisfactory, although even the former does not bar the 
 rights of adverse claimants (a) unless they are bound as 
 parties to the suit (b), nor then as to the legal estate (c); 
 nor does it guard the purchaser against the peril that, since 
 such preceding investigation, the law may have been retro- 
 actively altered by judicial decision (d), a peril which 
 however is not so serious as it would otherwise be, because 
 the Courts are generally very unwilling to overrule decisions 
 on property law for this very reason (e). 
 
 To remedy this uncertainty Lord St. Leonards (/) once Remedies, 
 suggested that after 20 years had elapsed since a purchase Suggestion by 
 the only remedy of an adverse claimant should be against Leonards. 
 the purchase money in the hands of the Vendor unless the 
 purchaser had when he purchased some reason to believe 
 that such claim existed. 
 
 Since then Statutes (g) have been passed by which i n dj spu table 
 Courts and Public Functionaries have been authorized to Tltles - 
 investigate titles, and to bar such adverse claims as they 
 
 (a) Blosse v. Clanmorris, 3 Bli. 62 ; 
 Vancouver v. Bliss, 1 1 Vez. 465 ; see 1 
 J. & W. 568; Knight v. Peacock, 24 
 Bea. 436. 
 
 (6) Sug. V. P. 111. 
 
 (c) Clarke v. Malpat, L. J. 31 Ch. 
 696; Ferety Hill, 15 C B.207; Bough- 
 ton v. Sandilands, 3 Tau. 376. 
 
 (d) See Mills v. Jennings, L. R. 13 C. 
 D. 639, as one of the latest instances 
 of this, -which is very common. 
 
 (e) The earlier authorities on this 
 point are arranged in Ram on the 
 Science of Legal Judgment. Later 
 observations to the same effect fre- 
 quently recur but are not preserved in 
 the Digests. See however Cadell v. 
 Palmer, 1 CI. & Fin. 372. 
 
 (f) Sug. V. P. 809. 
 
 (g) Stated below, where I treat of 
 Priority by Indisputable Title.
 
 384 PRIORITY DEPENDING ON CERTAINTY.— ^GENERAL VIEW. 
 
 consider untenable; and provisions have been made to 
 enable adverse claimants to appear and defend their rights. 
 But schemes of this kind labour under the serious disad- 
 vantages that the land-owner is expected to bear the 
 exceptional expense (i) of this mode of investigating the 
 title, while yet he derives very little compensatory advan- 
 tage; and that, even under the most cautious system, mis- 
 takes sometimes occur (a), so that adverse claimants are 
 barred without an opportunity of defending their rights (b) ; 
 while forgotten claims, depending sometimes upon a tech- 
 nical quibble, are stirred up to the injury of the apparent 
 proprietor. There is, however, one scheme in which the 
 first of these objections has been, with scant regard to 
 justice, evaded, — I mean that of the Landed-Estates 
 Courts Ireland (c) ; by which a Mortgagee can set the Court 
 in motion (d), while the costs of working its elaborate 
 machinery fall on the Mortgagor {e). And there are some 
 classes of property to which this difficulty does not apply, 
 those namely — which, being the product of human inge- 
 nuity, are registered from the first moment of their 
 existence, as, a Ship (/) or Stocks and Shares. 
 
 (i) It is believed to be for tins reason that the Acts for conferring perfect 
 titles have remained almost dead letters. If registration really be necessary 
 the only really feasible plan would be to enable any person to register a decla- 
 ration that he believes specified land to be subject to specified limitations, (no 
 other conditions being required than that the party registering should appear to 
 be interested under the limitations so stated, and that he should give security 
 for the payment of damages to any one injured by his act,) and to give to this 
 registration the effect of vesting the property according to the limitations so 
 stated, subject to the right of anyone interested in the property to require, 
 within 20 years after the first registration, a registered conveyance from those 
 appearing on the register to be entitled to it, the expense of this to be borne by 
 the party who first registered, and to be covered by the security which he must 
 give when he registers. See however an alternative scheme in my pamphlet, 
 "An Apology for the present System of Conveyancing," Longmans, 1870. 
 
 (u) See especially Tottenham's Estate, (b) As in Tottenham's Estate. 
 
 3 Ir. R. Eq. 528, below, p. App. i, iii- (c) 21-2 Vic , c. 72. 
 
 vi; Anon, below, p. App.ii-iii,v-vi; Power (d) s. 43. 
 
 v. Reeves, 10 H. L 645, below, p. App. (e) s. 64. 
 
 xxii; Rorke v. Errington, 7 H. L. 617, (/) 17-18 Vic, c. 104, s. 19. 
 below p. App. xxiii.
 
 PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 385 
 
 Another proposal is that all titles should be recorded Recorded 
 and that the recorded "proprietor" should be authorized 
 to bar by disposition all unregistered claims (i), but this is 
 open to the objection (which seems to me a serious one, at 
 least as regards property the value of which is factitious, as 
 Land, or Ships,) that the complicated interests necessary 
 in a Family Settlement, and on a grant of Easements (so 
 usual in manufacturing districts), cannot be readily stated 
 on a register. There are, however, many law-reformers 
 who do not feel pressed by this objection, and who not 
 only advocate the proposal just referred to, but insist that 
 no interests short of the perpetual fee should exist in the 
 legal estate, or be entered on the register, (a course which 
 has actually been adopted with respect to Ships and Stock); 
 and there are others who go the length of advocating the 
 prohibition of life-interests and complicated limitations 
 even in the beneficial estate, — a course which would involve 
 a grave economic error, since, as applied to Family Settle- 
 ments, it would be opposed to the fundamental principle 
 that the means of subsistence should be appropriated for 
 the increasing population, while, as applied to Easements, 
 it would be commercially disastrous. The objection, as- 
 suming it to be a sound one, might be partially obviated 
 by registering the property as subject to the limitations of 
 a specified Deed, — a method simpler in principle than, and 
 I think as simple in working as, that of caveats, which ne- 
 cessarily imply a suspicion of the honesty of the registered 
 "proprietor," and the removal of which must generally 
 necessitate the investigation of the unregistered title. 
 
 A person obtaining a grant to hold by Copy of Court- Miscellaneous 
 roll is not entitled to priority over an incumbrance created P omts ' 
 by the lord, though the land &c. has been immemoriably so 
 
 (i) It must be remembered tbat a Settlor or Testator can, even by an un- 
 registered disposition, confer the amplest powers of disposition on trustees or 
 life-tenants, if he desires to do so. 
 
 49
 
 386 PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 
 
 Contents of 
 following 
 Chapters on 
 Priority 
 depending on 
 Certainty. 
 
 granted (a) (unless (b) the incumbrance was on the whole 
 manor. The contrary statement in Cruise's Digest (c) 
 cannot (a), I think, be supported. 
 
 Finally, a Purchaser of property liable to Succession 
 Duty is free from that liability (d) unless the facts giving 
 rise to it are (or perhaps might have been) known to him 
 (d) ; and Purchasers under certain statutes are entitled to 
 priority over the claims of persons bound by the sale (e), 
 and over claims founded on Informalities (/"), or mistakes of 
 Account (g). 
 
 In considering these subjects I propose to discuss in 
 ch. xlvii the circumstances under which priority is 
 conferred by the Legal estate or equivalent circumstances; 
 in ch. xlviii the circumstances under which it is con- 
 ferred by Registration under the Irish or County Registry 
 Acts; in ch. xlix the exact circumstances under which 
 one of the exceptions to the rules stated in the preceding 
 chapters (but one which can only be cursorily alluded to 
 in them) applies, — I mean the exception which arises when 
 a purchaser &c. has Notice of the interest over which he 
 would otherwise gain priority; in ch. l, the Formalities 
 by which the Legal estate is transferred, and the circum- 
 stances equivalent to a transfer of it, (but the question what 
 constitutes Registration, depending as it does on the plain 
 language of the Statutes, and presenting but little difficulty, 
 will be merely referred to (h)); in ch. li the Transfer of 
 the Legal estate by Operation of Law; in ch. lii the 
 circumstances which constitute Notice; in ch. liii, 
 
 (a) Cordel v. Clifton, {Westmoreland's 
 Case), 2 Leo. 152, 3 Leo. 59; Swayne's 
 Case, 8 Co. 63a , Cham v. Dover, 1 Leo. 
 16; Walton's Case, Dy. 270b; Samnerv. 
 Force, Brownlow 208. 
 
 (6) Sands v. Hempston, 2 Leo. 109, 
 rvg. <S. C. 2 Leo. 152, 3 Leo. 59; see 
 also Samner v. Force. 
 
 (c) 1 Cruise's Digest 263, 279. 
 
 (d) 16-17 Vic, c. 51, s. 52. 
 
 (c) As under the Partition Acts 39- 
 40 Vic., c 17; 31-2 Vic, c. 42, s. 9. 
 
 (f) As under the Landed Estates (Ir.) 
 Act 21-2 Vic, 0. 72, s. 85; under the 
 Judgment (Ir.) Acts 21-2 Vic, c. 105, 
 s. 2; or on sales by Eton College, 37-8 
 Vic, o. 62, s. 3. 
 
 (g) As under the Succession Duty 
 Act, 16-17 Vic, c. 51, s. 52. 
 
 (h) Ch. L, (near end).
 
 PRIORITY DEPENDING ON CERTAINTY. — GENERAL VIEW. 387 
 
 the circumstances under which notice in an Agent 
 is imputed to his principal; in ch. liv, the circum- 
 stances under which purchasers &c. are entitled to 
 priority over Annuities, Judgments, and other charges, 
 unless the latter be registered. There will then, so far as 
 the Subject of Priority depending on Certainty is con- 
 cerned, remain only a discussion of the means by which 
 (under some circumstances) all adverse claims may be 
 barred and an indisputable title acquired; whether by pur- 
 chase in open Market, by Registration of Stock, or of Ships, 
 by conveyance of tenements in Ireland from the Landed 
 Estates Court, by subsequent Recording of the title to 
 tenements so conveyed, or by Registration of tenements in 
 England under the Declaration of Title Act or under the 
 Transfer of Land Act. 

 
 ( 388 ) 
 
 CHAPTER XLVII. 
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 
 
 Rule. 
 
 Immaterial 
 Circumstances. 
 Persons 
 protected. 
 
 Subject 
 matter. 
 
 Priority is gained (a) by means of the Formalities (b) 
 prescribed for transferring the Legal (c) (i) estate, — by (d) 
 the circumstances (e) under which the Best Right to Call 
 for it arises, — and, lacking both, by (/) (some (g) have 
 thought) the Possession (h) of the property {h), — and, (in 
 the case of a Chose in action (z), when the legal estate cannot 
 be transferred (/),) by (k) (ii) equivalent circumstances (/). 
 
 Priority can (by each of these means) be gained, alike 
 (m) for the party who acquires these advantages (m), for 
 his beneficiaries (n), and for those who derive under him 
 (»); and that, whether the subject be a Tenement (o); or a 
 
 (i) The question whether priority over a present interest is conferred hy a 
 reversionary legal estate was recently (p) argued but not determined. However, 
 the rule is that priority is gained during the period for which the legal estate 
 continues. 
 
 (11) It has been recently held (q) that a purchaser cannot, by these circum- 
 stances, gain priority over one who has obtained the title deeds, though he 
 makes such inquiries after them as would, if he had the legal estate, exonerate 
 him from notice (r) ; unless he be entitled to priority by some statute (*). 
 
 (in) The doctrine as applied to mortgages is termed " Tacking." 
 
 (a) Pihher v. Rawlins, L. R. 7 Ch. 
 259 ; Marsh v. Lee, 1 W. T. L. C. (4th 
 Ed.), 611. 
 
 (6) Stated below, ch. L. 
 
 (c) Defined ante, p. 376 /3. 
 
 (</) Sugden V. P. 738 (e) ; below, ch. L. 
 
 (e) Stated Ch. L. 
 
 (f) Ante, p. 379(e)-381(jr). 
 
 (g) Ante, p. 380(acrfe). 
 (A) Ante, p. 379 (n). 
 
 (») Defined, ante, p. 3. For an exact 
 statement of the kinds of property to 
 which these circumstances apply see 
 further on in this ch. 
 
 (J) As explained ante, p. 207-8, 154- 
 6. For statement of choses the legal 
 
 estate in which can be transferred see 
 ante, p. 156, below, Ch. L. 
 
 (i) Foster v. Cockerelt, 9 Bli. N. S. 
 332; Dearie v. Hall, 3 Russ. 1; Love- 
 ridge v. Cooper, ib. 
 
 (I) Stated in Ch. L. 
 
 (m) Authorities in note (c). 
 
 (n) Blake v. Hungerford, Pre. Ch. 158. 
 
 (o) Pitcher v. Rawlins, L. R. 7 Ch. 
 259; Marsh v. Lee, 1 W. T. L. C. 611. 
 
 (p) Russell Road, &c, L. R 12 Eq. 
 78. 
 
 (q) Spencer v. Clarke, L. R. 9 C. D. 
 137. 
 
 (r) Hewitt v. Loosemore, 9 Hare 499. 
 
 (s) As by the 30-1 Vic , c. 144.
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 389 
 
 Chattel, corporeal (a) (including a Cargo (b)), or incor- 
 poreal (c) (including a Bill (d) or Draft (e) of Exchange): 
 and whether the postponed interest be strictly an Estate Interests 
 (/); or an inchoate right to acquire one, (as, a right to pos pone 
 Dower (g)); or an Incumbrance (h) (including a Vendor's 
 lien (*) and his right to stop in transitu (/)); or a right to 
 acquire one, (as, a right to consolidate Mortgages (k), or to 
 levy Execution (/)); or the lien of a Covenant («/) (though 
 attended with a legal right of action (/«)); or a right to set 
 aside the present (n) or a previous (o) disposition on a 
 ground of which the purchaser is innocent, as Fraud (p), 
 False pretences (q), (though the purchaser knew that a 
 prosecution was pending (/) and though conviction follows 
 (s), but not if conviction preceded (t),) or Mistake (w), (but 
 not Theft (v) unless perhaps the purchase was in open 
 market (w)); or, (when the subject is a chose in action,) a 
 right to Set-off or the like (x). 
 
 (a) Babcock v. Lawson, L. It. 2 4 Q. 
 
 B. D. 394 ; Moyce v. Newington, ib. 32 ; 
 Daniel v. Russell, 14 Vez. 393. 
 
 (b) Leash v. Scott, L. R. 2 Q. B. D. 
 376; Argentina, L. R. 1 Ad. & Ec. 370; 
 Emilien Marie, 44 L. J. Ad .9; Rod- 
 ger v. C. <TE. d. Tarts, L. R. 2 P. C. 
 393, and modified by 18- 19 Vic, c. Ill, 
 
 8. 1. 
 
 (c) Foster v. Cockerell, 9 Bli. N. S. 
 332 ; Dearie v. Hall, 3 Russ. I ; Love- 
 ridge v. Cooper, ib. 
 
 (</) Dawson v. Prince, 2 D. G. J. 41; 
 sd. Jones v. Gordon, L. R. 2 Ap. 627-8. 
 
 (e) Thiedman v. Goldschmit, 1 D. G. 
 F. J. 4. 
 
 (f) Young v. Young, L. R. 3 Eq. 801. 
 
 (g) Radnor v. Vandebendy, Show. P. 
 
 C. 69. 
 
 (fc) Plumb v. Fluitt, 2 Ans. 432. 
 
 (i) Sug. V. P., 681 (/)• 
 
 (J) Leash y. Scott, L. R. 2 Q. B. D. 
 376. 
 
 (A) Bovey v. Skipwith, 1 Ch. Ca. 201 ; 
 Vint v. Padget, 2 D. G. J. 611. For 
 explanation of this see ante, p. 337 
 (/>339(6). 
 
 (0 See 19-20 Vic, c. 97, s. 1, (by 
 •which however the right to priority is 
 not confined to those who have ac- 
 
 quired the legal estate or other advan- 
 tages specified in the text), interpreted 
 re Balburnie, L. R. 3 C. D. 493. 
 
 (m) Dilkes v. Broadmead, 2 D. G. J. 
 566. 
 
 (n) Marshall v. Collett, 1 Y. & C. Ex. 
 238; Sturgev. Starr, 2 M. & K. 195. 
 
 (o) Babcoch v. Lawson, L. R. 4 Q. B. 
 D. 394; Bell v. Cundall, Amb. 101; 
 Burchell v. Clarke, L. R. 1 C. P. D. 602 
 (rvd. on another point); Sd.as to chat- 
 tels Candy v. Lindsay, L. R. 3 Ap. 464 ; 
 Moyce v. Newington, L. R. 4 Q. B. D. 
 32. 
 
 (p) Sd. C.V.L.; S.v.S. 
 
 (</) B.x.L.; M.y. N. 
 
 (r) According -to the principle in 
 Harwoodv. Smith, 2 T. R. 750, in which 
 (the sale having been made in open 
 market) there was a temporary title 
 even in respect of stolen goods. 
 
 (s) M. v. N. 
 
 (0 4-5 Vic, c 96, s. 100. 
 
 (u) Bell v. C; Burchell v. C; M. v. 
 C. 
 
 (v) Addison on Wrongs (3rd Ed.), 328. 
 
 (hj) Id. 327. 
 
 (*) Webster v. Webster, 31 Bea. 393; 
 Stephens v. Venables, 30 Bea. 625.
 
 390 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 
 
 Adverse Cir- 
 cumstances. 
 As to Legal 
 estate 
 Time of 
 acquiring it. 
 
 Purpose of 
 acquiring it. 
 
 Nature of it. 
 
 Other Circum- 
 stances con- 
 nected with it. 
 
 And priority can thus be gained though the formalities 
 accompanied not the protected disposition but some other 
 transaction by which the Legal estate was acquired which 
 is afterwards used (under the doctrine already [a) explained) 
 to protect (during its continuance) that disposition, and 
 whether (in that case) that legal estate was obtained before 
 (b) with (c) or after (d) the protected interest: and though 
 it was obtained for the very purpose of barring the rival 
 interest (d): or even for that of protecting another interest 
 which the party who afterwards becomes the rival com- 
 petitor then had in the property (e): and though it be a 
 .general lien (/) (as a Statute-merchant or -staple (g), or 
 Judgment (h) (i), though recovered (h) or bought in (i) after 
 notice, and though not put in execution till then (g) ) : and 
 though he who transferred it was aware of the postponed 
 interest before the protected disposition was made (/); or 
 was a mortgagee part of whose money had been advanced 
 after he had been notified of such interest (_/) : and though 
 the title to it has passed through a document by which the 
 interest now postponed was disclosed (k), (unless that 
 document was a link in the apparent title to the protected 
 interest (/), in which case the purchaser &c. thereof would 
 be postponed as having constructive notice (I)): and though 
 that purchaser &c. was (when he acquired the legal estate) 
 
 (i) It has been said (m) that priority cannot now be gained by means of a 
 judgment, since the execution Creditor has been rendered liable (n) to account 
 in the Court out of which execution issued. But (o) he seems to be, by the 
 execution, invested with the same legal estate as under the old law (o). 
 
 (a) Ante, p. 377-9. 
 
 (6) Morret v. Paske, 2 Atk. 52. 
 
 (c) Pilcherv. Rawlins, L. R. 7 Ch.251. 
 
 (d) Marsh v. Lee, 1 W. T. L. C. 611. 
 
 (e) Wilmot v. Pike, 5 Hare 14. 
 
 (f) M. v. L.\ Goddard v. Compton, I 
 Ch. Ca. 119. 
 
 (g) M. v. L. For description of 
 these securities see 1 Jos. B. Smith R. 
 P. (4th Ed.), 420-1; Burton's Comp. 
 pi. 868. 
 
 (h) Shepherd v. Titley, 2 Atk. 348; 
 Jackson v. Langford, 2 Vez. 662. 
 
 (i) M. v. L. ; S. v. T. 
 
 (j) Peacock v. Burt, Coote on Mort- 
 gages 569, 572; 4 L. J. N. S. 33. 
 
 (Jfc) Pikher v. Rawlins, L. R. 7 Ch. 259, 
 overruling Carter v. Carter, 3 K. & J. 6 1 7. 
 
 (/) See ch. LII for authorities shew- 
 ing this to be so, ch. XLIX and LIU for 
 a definition of constructive notice. 
 
 (m) Coote Mor. (3rd Ed ), 406. 
 
 (n) 1-2 Vic, c. 110, s. 11. 
 
 (o) See 1 Sm. R. & P. 422.
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 891 
 
 aware of the postponed interest (a): and though the pos- 
 session (b), or perhaps (i) the legal estate (c), was irregu- 
 larly, (perhaps inequitably,) acquired: and though the 
 subject (being a fund) has, since the circumstances which 
 are equivalent to the legal estate occurred, been transferred 
 to the general credit of all who might have incumbrances 
 on it (d); or been so dealt with as to make circumstances 
 of a different kind appropriate (e) : and though the pro- As to the 
 tected interest was acquired in satisfaction of (/), or as interest, 
 security for (g), an antecedent debt; or in satisfaction 
 (even without bargain) of a liability, (as, by the act of 
 trustees applying the funds of one trust to satisfy their 
 liability to another for which latter the legal estate 
 afterwards comes to be exclusively held (h)) ; or from one 
 who derives (i), or claims (J), under him who made the 
 rival disposition ; or from one who purchased with know- 
 ledge of, and was therefore subject to, the rival interest (k). 
 And priority for his further advances can be thus 
 gained by a Mortgagee over the right of redemption 
 which a Surety for the mortgage-debt has (I) (n). And 
 
 (i) Perhaps the sound view is that a reconveyance of the legal estate must he 
 obtained by independent proceedi ngs before the priority gained by it can be set aside. 
 
 (n) This must be so on principle, unless the mortgagee who is seeking 
 priority had notice of the Suretyship. But in fact he always has notice, and 
 it is probably on this ground that this application of the doctrine has been 
 disapproved of. 
 
 As to the rival 
 Interest. 
 
 (a) Bates v. Johnson, John. 304; 2 
 Fish. Mor. 661-2. 
 
 (6) Baker v. Morgans, 2 Dow. 526. 
 
 (c) So held in Sanders v. Deligne, 
 Free. 123; and in Harcourt v. Knowel, 
 cited 2 Vern. 159; and see Siddon v. 
 Charnells, Bunb. 298. 
 
 (d) Lister v. Tidd, L. R. 4 Eq. 462. 
 See on a kindred point the authorities 
 in 2 Fish. Mor. 690 (r). 
 
 (e) Brearcliffe v. Dorrington, 4 D. G. 
 S. 122; Livesey v. Harding, 23 Bea. 141. 
 
 (f) Emilien Marie, 32 L. T. 435. 
 
 (g) Spencer v. Pearson, 24 Bea. 266; 
 Ex. Knott, 1 1 Vez. 618; Leask v. Scott, 
 L. R. 2 Q. B. D. 376, expressly over- 
 ruling Rodger v. C. d'E. d. Paris, L. R. 
 2 P. C. 393. See also Chartered Bank 
 v. Henderson, L. R. 5 P. C. 50. 
 
 ( K) Thorndike v. Hunt, 3 D. G. J. 563 ; 
 Case v. James, 3 D. G. F. J. 256. 
 
 (i) As to achose in action, Freshfield's 
 Trusts, L. R. 11 C. D. 198. 
 
 (_/') Goleborn v. Alcock, 2 Sim. 552; 
 Jones v. Powles, 3 M. & Ke. 581; 
 Young v. Young, L. R. 3 Eq. 801. But 
 see below where I cite Ogilvie v. Jeffre- 
 son. 
 
 (k) Harrison v. Forth, Pre. Ch. 51; 
 Att.-Gen v. Wilkins, 17 Bea. 293. 
 
 (/) Williams v. Owen, 1 Sim. 597; 
 Farebrother v. Wodehouse, 23 Bea. 18; 
 disapproved in Dawson v. Bk. of White- 
 haven, L. R. 4 C. D. 049 (which was 
 rvd. on another point) and in Newton 
 v. Chorlton, 10 Hare 662, and, (in effect) 
 in Pearl v. Deacon, 24 Bea. 186.
 
 392 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 
 
 priority can be thus gained over an interest acquired by 
 transmission, as that of a Judgment-Creditor (a); or of 
 Bankruptcy- (b) or Insolvency- (c) creditors (whether they 
 derived by assignment (d), or by enactment (e)), and 
 though there was a reputed ownership clause (/) in 
 the Bankruptcy Act, and especially if the favoured 
 disposition was merely confirmatory of a transfer of an 
 incumbrance created before the bankruptcy (e), but not if 
 this mode of acquiring priority over Bankruptcy-creditors 
 is prohibited by the Act, as it is in the case of chattels (g), 
 but not of tenements (A), by the act of 1849(2), and possibly 
 by that of 1869 (/) (1). And priority can thus gained over 
 an interest mentioned in an Act of Parliament passed before 
 the making of the protected disposition (k), (at least if the 
 act was of a private nature (£)): and over an interest 
 acquired for value (/): and over a Judgment registered {in), 
 — a disposition of property in a Registry County (11) 
 registered (»), — or a disposition of a Copyhold (0) enrolled 
 (p), — before the making of the protected disposition, (unless 
 the disponee under the latter had searched, in which case 
 he is postponed as having notice (q)). 
 
 (I) This lacks the negative words at the end of the Section of the other act. 
 
 (II) Yorkshire or Middlesex (r). This does not extend to Ireland (r). 
 
 (a) Lane v. Jackson. 20 Bea. 595. (f) As in the 7 Geo. IV, c. 57, s. 30; 
 
 (6) Ex. Knott, (priority by Legal 21 Ja. I., c. 19, s. 11; 12-13 Vic, o. 
 
 estate), 11 Vez. 619; Hitchcox v. Sedg- 106, s. 125. 
 
 tact (same), 14 Lds. Journals 601, rvg. (g) Brighfs Settlement, L. R. 13 C. 
 
 S. C. 2 Vern. 156, as stated 3 M. & K. D. 413. 
 
 59 1 ; Selby v. Pomfret (decided under (A) Selby v. Pom fret, 3 D. G. F. J. 
 
 act of 1849 respecting the right to con- 595. 
 
 solidate), 3 D. G. F. J. 595; Barr's (t) 12-13 Vic., c. 106, s. 141. 
 
 Trusts (priority in Chose in action, de- (./') 32-3 Vic , c. 71, s. 15. 
 
 cided on the 13 El. c. 7, 1 Ja. I. c. 15, (it) Pomfret v. Windsor, 2 Vez. 480; 
 
 and 46 Geo. Ill, c. 135), 4 K. & J. 223, and see Hesse v. Stevenson, 3 B. & P. 
 
 229 ; Russell's Trusts (same, decided on 578. 
 
 the 12-13 Vic, c 106, s. 141-2,) L. R. (/) In almost all the cases. 
 
 15 Eq. 26. (m) Lane v. Jackson, 20 Bea. 595. 
 
 (c) Re Atkinson (priority in Choses in (n) Morecock v. Dickins, Amb. 678. 
 action, decided on the 7th Geo. IV, c. (o) Described ante, p. 10-1 1. 
 
 57, s. 11), 2 D. G. M. G. 140. (p) Bugden v. Bignold, 2 Y. C. Ch. 
 
 (d) Barr's Trusts; Re Atkinson; BM 377. 
 
 v. Blyth, 24 W. R. 356. (q) See Ch. LII. 
 
 (e) Russell's Trusts. (r) See Ch. XL VIII.
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 393 
 
 And priority can be gained though a Redemption action As to other 
 by the postponed party was pending when the legal estate 
 was acquired (a). 
 
 And priority can be, by means of the circumstances appro- 
 priate to cJwses in action, gained, even though the subse- 
 quent and favoured disponee had made no inquiry from the 
 holder of the fund as to the existence of earlier incum- 
 brances (b); and though the subject be a fund in which the 
 legal estate is transferable, as Stock (c) (provided that 
 estate is outstanding (c)); and though it be Money to arise 
 from sale of (d), or perhaps even Money charged on, Land 
 (i); and (perhaps) though it be a Corporeal Chattel (n). 
 
 But priority by means of the legal estate (e), or under Conditions of 
 the recent Policies of Insurance Acts (f), can only be gained ytrbade 
 if the protected interest be acquired by a disposition (not prasenti. 
 a contract or representation). However an agreement to 
 
 (i) A Charge on land does not, perhaps, stand in the same position as money 
 to arise from sale of land. The rule has been held (y) inapplicable to the dispo- 
 sition of an Annuity charged on land; but this has since been condemned (A), 
 and it has been held (i) that a gross sum charged on land, can, by the appro- 
 priate circumstances, be taken out of the Order and Disposition (j) of a Bank- 
 rupt disponor. 
 
 (n) A leading textwriter (k) so states on the authority of cases (/) which do 
 not seem to me to bear him out. In one (m) of them the question was whether 
 the disposition was effectual against the disponor and his judgment-creditor. 
 In another («) the rule was held inapplicable ; and, though this decision may have 
 been founded on exceptional circumstances, yet it may have proceeded on the 
 ground that the rule does not apply to corporeal chattels. In another (o) the 
 question was, whether the chattel was, by the circumstances, taken out of the 
 order and disposition of the disponor; and it was held that it was not. In all 
 these cases the subject matter was a Cargo. 
 
 (a) Marsh v. Lett, I W. T.L. C. 611. 
 
 {b) Meux v. Bell, 1 Hare 73. 
 
 (c) Loveridgev. Cooper, 3 Russ. 1, 31. 
 
 Id) Foster v. Cockerell, 9 Bli. N. S. 
 376, modified in Lee v. Howlett, 2 K. & 
 J. 531. 
 
 (a) Ante, p. 75 (a). 
 
 (f) Spencer v. Clarke, L. R. 9 C D. 
 137; Crossley v. City of Glasgow Sf-c. Co., 
 L. R. 4 C. D. 421. As to the difference 
 between the meaning of " assignment" 
 in a Statute by which priority is con- 
 ferred, and its meaning is one by which 
 priority is taken away, compare these 
 cases with Mackay r. Jeavons, L. R. 8 
 
 Ch. 648, and Edwards r. Edwards, L. 
 R. 2 C. D. 291. 
 
 (g) Wiltshire v. Rabbits, 14 Sim. 76. 
 
 (A) Re Hughes, 2 H. & M. 89. 
 
 (i) Consolidated I. Co. v. Riley, 1 
 Gitf. 376 /3. 
 
 (j) Explained below, Ch. LIX. 
 
 (Jfc) Fish. Mort. 586. 
 
 (/) Langton v. Horton, 1 Hare 549; 
 Feltham v. Clark, 1 D. G. S. 307 ; Re 
 Lucas, 3 D. G. J. 113. 
 
 (w») L.v. H. 
 
 (n) F. v. C. 
 
 (o) Re L. 
 
 50
 
 394 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 
 
 hold an interest in a tenement for a party's benefit is a 
 sufficient disposition (if made by deed (a)), for value (b), 
 and enrolled (a) ; or for the considerations specified above 
 (c); or if it be a Lease (d); and so is an executor's assent to 
 a Legacy (e) : and the legal estate can be testamentarily 
 transferred by words purporting to confer such powers as 
 only one holding that estate could exercise (f). 
 Rightful And it has been held (i) that priority can be thus gained 
 
 "ransfe of ' on ^Y ^ ne wno transferred the legal estate either was entitled 
 Legal estate. ^ t do so, (as, when he held it as mortgagee (h)) ; or 
 believed himself so entitled (i); or had, before the rival 
 disposition was made, agreed to transfer it (j) (n); or 
 received value for the transfer (k) ; and therefore not if he 
 held it as trustee (/) (in), and had so declared himself (?«), 
 or had active duties to perform (m) ; nor if he, being the 
 common disponor («), had contracted to transfer it to the 
 rival competitor (o) ; unless (in either case) he transferred it 
 with the beneficial estate (p), 
 
 (i) All that is clear on this point is that the rule does not apply if the 
 Transferee of the legal estate had notice that the Transferor was not entitled to 
 transfer it (</). 
 
 (n) If in this case the protected interest was as great as the legal estate it 
 woiild have priority on the further ground of precedence in time (r). 
 
 (m) Hence one whose trustee is about to transfer the legal estate contrary to 
 the trust is entitled to restrain him (s). 
 
 (a) 27 Hen. VIII (E.), c. 16, modi- M. v. S., p. 563, / 16-17; consistent 
 
 fled by 5 EL, c. 26, and by 6 Ann., c. with the other cases. 
 
 20; 10 Cha. I, st. 2 (I.), c. 1. (/) Sd. in M. v. S., p. 562-3, to be 
 
 (fc) Sugden on Powers (8th Ed.), 6. probably law, and seemingly held with 
 
 (c) Ante, p. 327 (/-«). respect to the possession of deeds in 
 
 (d) Woodfall, L. & T., (10th Ed.), Cory v. Eyre, 1 D. G. J. S. 170. 
 
 86, / 7. ('") 2 Dart on Vendors, (4th Ed.), 
 
 (e) Williams on Executors (6th Ed.), 759. 
 
 1378 ('-*)• [454. (») Sd. Sharpies v. Adams, 32 Bea. 
 
 (/) Cooke's Contracts, L.K.4C.D, 214; sd. Maxwell v. Burton, L. R. 17 
 
 (g) Sandersv.Deligne, Free. Ch. 123. Eq. 20. 
 
 (h) As in Marsh v. Lee, 1 W. T. L. (o) This limitation was thought ne- 
 
 C. 611. cessary in M. v. B.; but the doctrine, 
 
 (?) According to Wilmot v. Pike, even when thus limited, seems contrary 
 
 (2nd point, not in marginal note), 5 to Oxwick v. Plumer, Bac. Ab. " Mort- 
 
 Hare 21; supported in Bates v. John- gage" E. 3. 
 
 son, Johns. 316, I 6; and Mumford v. (j>) Dodds v. Hills. 
 
 Stohwasser, L. R. 18 Eq. 563, / 16. (q) See Ch. XLIX. 
 
 (j) Cooke v. Wilton, 29 Bea. 100. (r) Ante, p. 345-357. [902. 
 
 (fc) Dodds v. Hills, 2 H. & M.421 ; sd. (*) Dance v. Goldingham, L. R. 8 Ch.
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 395 
 
 And, when the rival right is a right to set aside a dispo- 
 sition, priority can be only gained if the disponor has 
 transferred (besides the legal estate) the possession to the 
 disponee (a), (not necessarily for the purpose of the dispo- 
 sition {b) (i)). And when he who made the favoured dispo- 
 sition would not, even in the absence of the rival disposition, 
 have been entitled to the property, but merely professed to 
 derive under him who made the rival disposition, priority 
 can only (c) be gained if he delivered possession to the 
 favoured disponee (d), and also purported to transfer the 
 legal estate to him (e). unless he already had it (f). 
 
 And priority, whether by the legal estate (g) or (in case 
 of a chose in action) by equivalent circumstances (h)), can 
 only be gained if the favoured disposition was made for 
 value (i). And priority by the legal estate can only be 
 gained if the protected interest belongs beneficially to the 
 same person who or whose trustee holds that legal estate 
 (?) or has the best right to call for it. And priority by the 
 circumstances appropriate to a chose in action can only be 
 gained when the disponor really has a beneficial interest (_/). 
 
 But priority by means of the Legal estate cannot be gained 
 over a disposition of a tenement in Ireland if the dispo- 
 sition was made since 7th August 1874 (^)> or was registered 
 
 Possession. 
 
 Value. 
 
 Union of Legal 
 estate with 
 protected 
 Interest. 
 Condition 
 appropriate to 
 a chose in 
 action. 
 Exceptions. 
 In respect of 
 Locality 
 (Ireland). 
 
 (1) Forbearance of an antecedent debt is sufficient value (/"), and so is 
 marriage (m), and sometimes re-settlement (n), 
 
 (a) Ogilvie v. Jeaffreson, (tenement), 
 2 Giff. 378 ; Cundy v. Lindsay, (chattel), 
 L. R. 3 Ap. 457; consistent also with 
 Babcock v. Lawsnn, L. R. 4 Q. B. D. 394, 
 and Moyce v. Newington, ib. 32. 
 
 (6) A fortiori from cases cited above 
 p. 3910). 
 
 (c) As in Ogilvie v. Jeafferson, 2 Giff. 
 380. 
 
 (rf) As in G. v. A.; J. v. P.; Y. v. 
 Y. ; all cited above p. 39 1 (J). In Lloyd 
 v. Attwood, 3 D. G. J. 656, the fraud 
 related to the deeds and the favoured 
 Claimant had possession of them. 
 
 (e) As in G. v. A . and /. v. P. 
 
 if) As in Y. v. Y. 
 
 (g) Lewin on Trusts, (5th Ed.), 
 615 (b). 
 
 (A) Justice v. Wynne, 12 Ir. Ch. 289. 
 
 (i) Barnett v. Weston, 12 Vez. 130; 
 sd. Morrelt v. Paske, 2 Atk. 52. 
 
 (j) Murray v. Pinkett, 12 C. & F. 
 764, explained Clack v. Holland, 19 Bea. 
 275 /. 5-8. 
 
 (it) 37-8 Vic, c. 79, «. 7, the repeal 
 of which, in the 38-9 Vic, c 87, s. 129, 
 is confined to England by that Act, s. 2. 
 
 (/) Ante, p. 391 (/). 
 
 (m) Rancliffev. Paikyns, 6 Dow. 149: 
 Davies v. Thomas, 2 Y. & C. 234. 
 
 (») Honlditch v. Wallace. 5 C. & F. 
 629.
 
 In respect of 
 
 Subject 
 
 matter. 
 
 In respect of 
 the Means by 
 ■which priority 
 is gained. 
 By the Legal 
 estate. 
 
 Chain of title 
 to it. 
 
 396 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS, 
 
 before the registration of the disposition for which priority 
 is sought (a). 
 
 Nor can priority be thus gained over a registered dispo- 
 sition of a British Ship (the law respecting which and 
 respecting stock is discussed further on (b)) ; nor over a 
 deposit of a Bill of Lading (c); nor for those advantages 
 upon the land of another which (as already (d) stated). can- 
 not be clothed with the legal estate; nor for a disposition 
 of a chose in action (though made under the Judicature (e) 
 Acts or Policy of Insurance Acts ffj), unless to a limited 
 extent (g); nor for an overdue Bill of Exchange &c. (h). 
 
 Nor can priority be gained by that means if the trans- 
 feror's title is necessarily deduced through a disposition 
 destitute of the legal formalities (i); or through a trans- 
 mission of the mere beneficial interest (as a judgment- 
 charge (/)) ; nor if the legal estate had been parted with 
 before the professed transfer of it was made (/), These 
 exceptions, which depend on the historical reason that the 
 absence of a link in the chain of title to the legal estate 
 prevents it passing, and which, therefore, cannot apply to 
 the other means by which priority is, even under the present 
 rule, attainable, would render the legal estate almost 
 useless, if it were not that a new legal title can be 
 commenced (k), which, though wrongful (/) at first, 
 
 (i) Hence a debtor is not bound to pay the debt of a Claimant whose title 13 
 necessarily thus deduced (m). 
 
 
 (a) 6 Ann., c. 2 (Ir.), s. 4; Mill v. 
 Hill, 3 H. L. 828; Authorities in Mad- 
 den on Registration, (Magee, Dublin), 
 233, 231. 
 
 (b) Ch. LV. 
 
 (c) 4 Geo. IV, c. 82, s. 2; 6 Geo IV, 
 c. 94, s. 5. 
 
 (d) Ante, p. 2-3. 
 
 (e) 36-7 Vic, c. 66, (K.), s. 25 (6), 
 (passage in parenthesis); 40-1 Vic, c 
 57, (Ir.), s. 28 (6). 
 
 (f) 30-1 Vic, c. 144, (Life Policies), 
 s. 1, 2; 27-8 Vic, c. 43, s. 11; 31-2 
 Vic, c 86, (Marine Policies), s. 1, (Pro- 
 viso). See also as to Policies, Crossley 
 
 v. City of Glasgow $c. Co., L. R. 4 C. D. 
 21. 
 
 (g) Authorities cited ante, p. 154 (c-e). 
 
 (h) Hodgson v. Murray, 2 Sim. 515; 
 Ante, p. 348 (/). 
 
 (i) Under the 1-2 Vic, c 110, s. 13. 
 
 (j) Brace v. D. Marlborough, 2 P. 
 W. 495; Thorpe v. Holdsworth, (2nd 
 point), L. R. 7 Eq. 139; Horlock v. 
 Priestly, 2 Sim. 75. 
 
 (k) Ante, p. 23. See remarks in 
 Portsmouth v. Effingham, 1 Vez 435. 
 
 (0 Defined ante, p. 351, n. (n). 
 
 (m) Crossley v. Citu of Glasgow L, A, 
 Co., L. R. 4 C. D. 421.
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 897 
 
 becomes rightful as adverse claims are barred through 
 time (a), and that one who has been long in possession is 
 presumed to have acquired the legal estate by some dispo- 
 sition since lost (b), Nor can priority be so gained as 
 regards any portion of the ownership which is covered by 
 a legal interest in the rival claimant, though that interest 
 be but a lien, (as, by Crown debt (c) or judgment (c)); nor 
 can priority thus gained continue after the termination of 
 the legal estate by means of which it was gained (d). 
 
 Nor probably, can priority be thus gained if such legal Mode of get- 
 estate was acquired unlawfully (e), or fraudulently (e); or ting li in " 
 was acquired subject to a trust, (though it be but a trust 
 to sell and to satisfy the protected incumbrances out of the 
 proceeds and to pay the surplus to the disponor (/)); or 
 was disposed of under a power by the terms of which the 
 proceeds were to be so applied (as under the usual power 
 in a mortgage (g)); nor can priority be gained by mere 
 endeavours to obtain the legal estate {h) ; nor by means of 
 the best right to call for the legal estate when the rival 
 competitor has the legal estate itself (i). 
 
 Nor can priority be gained by the circumstances appro- By the Cir- 
 priate to the transfer of a chose in action (/), if the rival appropriate to a 
 disposition was previously, or simultaneously (k), or (at CAose m action, 
 least when a stop order was the appropriate circumstance) 
 subsequently on the same day (I), attended by such circum- 
 stance; nor, (some have thought) if compliance with the 
 
 (a) Ante, p. 23. See remarks in 
 Portsmouth v. Effingham, 1 Vez. 435. 
 
 (6) See feat's Trusts, L. R. 7 Eq. 302; 
 Authorities in Sug. V. P. 399 (/ m »), 
 418 (i-Jt), and (as to Attendant terms) 
 621 (r-«), (11th Ed.) App. No. 26. But 
 the presumption was not made in Pic- 
 kett v. Packham. L. K. 4 Ch. 190. 
 
 (c) Haltons Case, 10 Co. 55b. 
 
 (d) See Fish. Mort. 651 pi. 1200. 
 
 (e) See Carter v. Carter, 3 K. & J. 
 636, 637. 
 
 (f) Petitt v. Houqhton, 2 M. D. & D. 
 G. 47. 
 
 (g) Hooper v. Harrison, 2 K. & J. 
 107-8. 
 
 (/») Horlock v. Priestley, 2 Sim. 75. 
 
 (i) Stanhope v. Verney, 2 Eden. 81. 
 
 (j) As to the effect of a simultaneous 
 transfer of the legal estate to both the 
 rival competitors, see ante, p 340 {a-c). 
 
 (*) Calisherv. Forbes, L. R. 7 Ch. 109 
 
 (/) Timson v. Ramsbottom, 2 Ke. 35.
 
 398 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 
 
 circumstances would be very difficult (a); nor against 
 interests paramount to the title of the common disponor 
 (&); nor if the subject matter be a Tenement (c), though 
 the disponor have merely a chattel interest therein (d), and 
 though he had previously parted with (e) or never had (/) 
 the legal estate therein, and though the property be liable 
 to be sold under a Power (g) (unless the power be impera- 
 tive (h) in which case the money to arise from its exercise 
 is what is really dealt with (i)); nor, perhaps, if the subject 
 be an Annuity secured on a tenement (j); nor if it be a 
 Debt secured on one (k), (unless, perhaps, by a Charge 
 (k)); nor if the disponor be competent to transfer the legal 
 estate, nor, therefore, (in the cases (I) which have arisen), 
 to a Bill of Exchange. Nor is it clear that the priority of 
 a disposition of a Fund in Court can be preserved by the 
 appropriate circumstances against a subsequent disposition 
 also attended by them and made after the fund has been 
 transferred to a different credit from that to which it stood 
 when the earlier disposition was made (m), unless that 
 credit be for the interested parties according to their 
 subsisting priorities (n). Nor can priority be thus gained 
 if he who claims it has afterwards paid the fund into Court 
 without doing anything to preserve his lien {o). 
 
 (a) Fish. Mor. citing Feltham v. bits, 14 Sim. 76. 
 Clarke, 1 D. G. S. 307, (which seems (rf) W. v. R. 
 rather to have been decided on the (e) /. v. /. ; W. t. P. 
 ground that these circumstances are (/) L.v. H.; W.v.R. 
 inapplicable to corporeal chattels,) and (g) R. v. H. 
 
 Langton v. Horlon, I Hare 549, (which (h) Foster v. Cockerel!, 9 Bli. N. S. 
 
 merely decides that consent to a Bank- 376, modified in Lee v. Howlett. 
 
 rupt's order and disposition of a fund (i) Ante, p. 75-6; Lewin, Tr. 129, 
 
 may be withdrawn without giving 676, 685. 
 
 notice to the holder when the giving of (j) See ante, p. 393 n. (i). 
 
 that notice would be difficult). {k) Sd. Jones v. Gibbons, 9 Vez. 410- 
 
 (b) Hooper v. Smart, L. R. 1 C. D. 90. 11. 
 
 (c) Bugden v. Bignold, 2 Y. C. Ch. (/) Decided as to Order and Dispo- 
 392 17; Jones v. Jones, 8 Sim. 633; Lee sition in re Price, 3 M. D. D. G. 586. 
 v. Howlett, 2 K. & J. 531; Rooper v. (m) See Lister v. Tidd, L. R.4Eq.462. 
 Harrison, 2 K. & J. 100, 103; Wilmot (n) L. r. T. 
 
 v. Pike, 5 Hare 14; Wiltshire v. Rab- (o) Swaynev. Swayne, 11 Bea. 463.
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 899 
 
 Nor can priority be gained by means of the legal estate In respect of 
 if the interest for which protection is sought came to the interest, 
 party in a different capacity from that in which he held 
 that estate (a). Nor, (since the law transfers those interests 
 only which the party may lawfully dispose of (b) (i)), can 
 any interest acquired by Transmission (n) be protected under 
 this rule, whether it was acquired by Survivorship (c); 
 Dower (d); Bankruptcy (e) (in); Liquidation (/); Judg- 
 ment-lien recovered adversely (g) or perhaps with consent 
 (/}), (unless one who already had a specific incumbrance 
 on the property recovered such judgment with (i) or 
 
 (i) The maxim is "actus teyis nemini facit injuriam." 
 
 (n) Hence a judgment against or transmission from a tenant-in-tail is inef- 
 fectual against one deriving under him by a deed though unenrolled (j). But 
 an interest acquired by disposition may be protected by a legal estate obtained 
 by transmission (k). 
 
 (in) But Bankruptcy-Creditors ate entitled under another rule (/) to priority 
 over certain chattels in the reputed ownership of the bankrupt (including those 
 which he once was owner of but has since disposed of), unless the true owner 
 has withdrawn his consent to the Bankrupt's reputed ownership, which he can, 
 (in the case of a chose in action,) do by giving (/), or attempting (»i) to give, 
 notice to the holder; and, as such notice is one (n) of the circumstances equi- 
 valent to the transfer of the legal estate, some discrimination is necessary lest 
 the student should confound cases on reputed ownership with those on the rule 
 now under discussion, for, in the earlier Bankruptcy acts (o), the doctrine of 
 reputed ownership applied to choses in action generally (]>). 
 
 (a) Bamett v. Weston, 12 Vez. 130. 
 (6) See West v. Baker, L. R. 1 Ex. 
 D. 44. 
 
 (c) Sug. V. P. 205 (s-t). 
 
 (d) Sug. V. P. 205 (m-9). 
 
 (e) 1 W. T. L. C. 329b; Yate Lee on 
 Bankruptcy, 7 1 (6), 73 ; Taylor v. Wheeler, 
 2 Vern. 564. 
 
 (f) Yate Lee 467 (»«), 473 (m). _ 
 
 (g) Brace v. Marlboro., (2nd point), 
 2 P. W. 491; sd. Burgh v. Francis, 1 
 Eq. Ab. 320; sd. Jackson v. Laycock, 
 2 Vez. 661 ; Breerton v. Jones, (Land), 
 1 Eq. Ab. 325-6; Langton v. Horton, 
 (Chattels,) 1 Hare 549; Kinderley v. 
 Jervis, 22 Bea. 30-4 ; Newiand v. Payn- 
 
 ter (Chattels), 4 M. & Cr. 408. 
 
 (ft) For no distinction is expressed in 
 the cases. 
 
 (i) Brace v. Marlboro., (4th point), 2 
 P. W. 494 : Shepherd v. Titley, 2 Atk. 
 352; Baker v. Harris, 16 Vez. 397. 
 
 (j) Ante, p. 351 (j). St. George's 
 Estate, 3 L. R. Ir. 277. 
 
 (k) Ante, p. 390, (g, h~). 
 
 (0 See below, Ch. LVIII. 
 
 (m) Same, citing Glover v. Moore, 2 1 
 L. T. 815b &c. 
 
 (n) Below Ch. L. 
 
 (o) Enumerated, Ante, p. 392 (b-j). 
 
 (p) Yate Lee, Ba. 151.
 
 400 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 
 O 
 
 In respect of 
 the Postponed 
 Interest. 
 
 In respect of 
 
 Subsequent 
 
 Events. 
 
 i haps without (a) the debtor's authority, or purchased it 
 
 Mli (b) or perhaps without (c) his consent (i); Judgment- 
 charge (d); Irish Judgment-Mortgage (e); Crown debt (/); 
 triage (g); or otherwise. Nor can an interest acquired 
 i transaction involving bad faith as regards either it (h) 
 or any other interest (h) be protected. 
 
 Nor can priority be gained against a Crown-debt owing 
 by one who is entitled as owner, (not merely as mortgagee) 
 to the beneficial interest (i). 
 
 Nor (it seems) can priority by means of the circumstances 
 appropriate to a chose in action be gained against Creditors 
 claiming under a Bankruptcy which occurred before 
 the beneficial interest (whose priority is claimed) was 
 acquired (_/). 
 
 Nor can priority by means of the legal estate be gained 
 if, before that estate is acquired, a Decree settling 
 priorities has been made in an action (k); nor if, before 
 the interest whose protection is sought was acquired, an 
 
 (i) The distinction between a judgment confessed or purchased with consent 
 and a judgment recovered or purchased without consent is that the former (at 
 least when obtained for a fresh advance) is a security given by act of the party, 
 while the latter arises from the act of law. 
 
 A case sometimes (/) referred to on this subject does not seem to me to 
 establish more than that equitable relief will not be given against a purchaser 
 without notice, though the party seeking it has a legal title to other relief. 
 
 (a) For no distinction is made in the 
 language of the Court in Shepherd v. 
 Titley or Jackson v. Laycock, 2 Vez. 661, 
 and I believe the opinion of the profes- 
 sion coincides with this. 
 
 (b) Sd., in Breereton v. Jones, 1 Eq. 
 Ab. 326, that it must be with his con- 
 sent. 
 
 (c) This is, I believe, the common 
 opinion. 
 
 (d) Whilworlh v. Gaugain, (Tene- 
 ment), 1 Ph. 728; Abbot v. Slratten, 
 (Tenement), 3 J. & L. 603; Pickering 
 v. Ilfracombe Ry. Co., (Chose in action), 
 L. R. 3 C. P. 235 ; Robinson v. Nesbitt, 
 (same), ib. 264; overruling Watts v. 
 Porter there cited. 
 
 (c) Eyre t. Mc. Dowell, 9 H. L. 619; 
 
 St. George's Estate. 3 L. R. Ir. 277. 
 
 (f) Fitzgerald v. Fauconberge, Fitz. 
 212; Authorities in Giles v. Grover, 6 
 Bli. N. S. 292, overruling those in 
 Broughton v. Att-Gen , 1 Pri. 220n. 
 
 (g) See Lanham v. Pirie, 28 L. T. O. 
 S 12 
 
 (h) Wiltoughbyv.Willoughby, 1 T.R. 
 774; How v. Weldon, 2 Vez. 518; said, 
 as to a Purchaser of Chattels, Cundy v. 
 Lindsay, L. R. 3 Ap. 493. 
 
 (i) King v. Smith, 3 Sug. V. P. (10th 
 Ed.), App. 36, qualified by King v. 
 Lambe, 13 Pri. 649. 
 
 (j) Ante, p. 392 (b-j). 
 
 (Jfc) Bristol v. Hungerford, 2 Vera. 
 524; Sd. Exp. Knott, 11 Vez. 619. 
 
 (/) Smithson v. Thompson, 1 Atk. 520.
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 401 
 
 action in which such a decree might be (and afterwards 
 
 was) made was pending (a) (i), and registered as lis pendens 
 
 (b) ; nor over an execution levied against goods before the 
 
 purchase (c). 
 
 Nor can priority be gained by a transfer of the legal In respect of 
 ., . , , , , , x . , , Notice when 
 
 estate if the transieree had then (11) notice that the 
 
 transferor was not entitled to part with it, as, when he 
 knew him to be the person from whom the rival claimant 
 derived by contract (d) or disposition (<?) (in), or to be 
 trustee in that person's bankruptcy (e), or to be trustee (/) 
 (iv) for the rival claimant (g) (especially if active duties 
 were annexed to the trust (h)): but this exception does 
 not extend to cases in which the transferee could alone 
 complete so much of the transfer as was incomplete at 
 the time of the notice (i) (v) or in which the matter 
 
 (i) Pendency before acquisition of the legal estate is not sufficient (k.) 
 
 (n) That is, at the time of obtaining the legal estate. Notice of the existence 
 of the rival claim, when unaccompanied by the circumstances stated in the 
 text, is only effectual if it affected the purchaser when he paid the purchase- 
 money &c, or when the formal disposition to him was made (&), by which (of 
 course) the legal estate would not pass unless the disponor had it (/). 
 
 (in) In one of the cases (m) an example is put, to the effect that one to whom 
 the common disponor afterwards transfers the legal estate cannot thereby ac- 
 quire priority though he had then no notice, but this has since (n) been 
 doubted unless the common disponor had previously contracted to transfer that 
 estate to the rival claimant (o). Another case (p) sometimes referred to on this 
 question does not affect it because in it the husband alone signed the covenant 
 and so the wife's interest was not bound and consequently the party who had 
 the legal estate had also the earlier beneficial one. 
 
 (iv) A satisfied (9) incumbrancer is, perhaps, in this sense, a trustee for those 
 beneficiaries of whose interests he had notice (r). 
 
 (v) A parallel case (s) on the law of Copyholds was, however, decided on the 
 ground that the legal estate had, in a manner, passed. 
 
 acquiring the 
 Legal Estate. 
 
 (a) Monet v. Paske, 2 Atk. 53. 
 (6) Ante, p. 343-4. 
 
 (c) 19-20 Vic, c. 97, s. 1. Where the 
 levy precedes, see Ante, p. 389 (/). 
 
 (d) Mumfordv. Stohwasser, L. R. 18 
 Eq. 564. 
 
 0) Allen v. Knight, 5 Hare 272. 
 
 (f) As to who is deemed a trustee 
 see Bates v. Joktison, John. 315. 
 
 (g) Sanders v. Dehew, 2 Vern. 271; 
 sd. Mumfordv. Stohwasser, L. R. 18 Eq. 
 562-3, in which authorities are referred 
 to. 
 
 {h) See Prosser v. Rice, 28 Bea. 74 /. 
 24-5. 
 
 (i) Dodds v. Hilts, 2 H. & M. 424, 
 
 which compare with London Sfc. Co., L. 
 R. 9 Eq. 653. 
 
 (j) Belchierv. Butler, (extreme case), 
 1 Eden. 522. 
 
 (*) Below Ch. XLIX. 
 
 (I) Ante, p. 396, (1, i, j). 
 
 (m) Sharpies v. Adams, 32 Bea. 216, 
 /5-13. 
 
 (n) In Maxwell v. Burton, L. R. 17 
 Eq. 19. 
 
 (o) Sd. Mum/ord v. Stohwasser, L. R. 
 18 Eq. 562-4. 
 
 (p) Sharpe v. Foy, L. R. 4 C. D. 35. 
 
 lq) Defined below, p. 403 (11 ). 
 
 (r) Sd. Bates t. Johnson, Johns. 316. 
 
 \s) Horloch v. Priestly, 2 Sim. 73. 
 
 51
 
 402 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 
 
 In respect of 
 Notice when 
 acquiring the 
 Beneficial 
 interest. 
 
 In respect of 
 
 General 
 
 Creditors. 
 
 Cases outside 
 the Rule. 
 Solicitor's 
 Lien. 
 
 notified is merely that the transferor is trustee for whom- 
 soever may be entitled (a), or even for a specific person 
 (though that happens to be the very person under whom 
 both competitors claim (b) (i)). 
 
 Nor can priority be gained by one who, when he com- 
 pleted (c) the acquisition of the interest for which he 
 claims priority, had notice (n) of the rival interest; 
 nor by one who then had notice of another interest 
 the owner of which could be compelled to redeem the 
 rival claim (d). 
 
 Nor (it has been held) can general creditors gain priority 
 in respect of a disposition for their benefit, for in such case 
 knowledge in the disponor is held equivalent to knowledge 
 in the disponee (e). 
 
 And a Solicitor's lien on a fund in court is not considered 
 to be derived through his client (f), and therefore cannot 
 be displaced by a disposition from the client, though 
 accompanied by circumstances equivalent to the legal 
 estate (g). 
 
 (i) This seems to he the rule established by the cases respecting attendant 
 terms (b). But see above (h). 
 
 (n) When a man lends money on the security of the purchase-money which 
 is to be paid under a Contract of sale, he lends on the security of so much as 
 shall be payable to his mortgagor, that is so much as shall remain after satis- 
 fying any incumbrances on the property; and therefore his claim is necessarily 
 subject to all incumbrances, whether he has or has not notice of them (i). 
 
 (a) Goleborn v. Alcock, 2 Sim. 552; 
 a fortiori from Wilker v. Bodington, 2 
 Vern. 599, 600, approved 1 T. R. 768. 
 Upon this distinction I think we may 
 explain the numerous cases in 1 Vern. 
 187, 2 Vern. 159 (/ 1) 81, 30, 159 (/ 1), 
 279, and 6 Vez. 184. 
 
 (b) Elaborately laid down in Wil- 
 loughby v. Willoughby, 1 T. R. 763. But 
 in Pilcher v. Rawlins, L. R. 7 Ch. 268 
 (/ 24-27), and Mumford v. Stohwasser, 
 L. R. 18 Eq. 562-3, an opinion is ex- 
 pressed that the contrary decision 
 would have been better. The cases 
 cited below in Ch. L, as showing that 
 under these or other circumstances a 
 purchaser is entitled to priority as 
 having the best right to call for the 
 
 legal estate, establish also that he is 
 not, under such circumstances, pre- 
 cluded, on the ground of notice, from 
 that priority. These cases therefore 
 may be referred to under this head 
 also. 
 
 (c) As to when he is deemed to have 
 completed this see below, Ch. XLIX. 
 
 (d) Pomfret v. Windsor, 2 Vez. 486. 
 
 (e) So held, interpreting the Mercan- 
 tile Law Amendment Act, in Hobson v. 
 
 Thelluson, L. R. 2 Q. B. 649. 
 
 (f) Haymes v. Cooper, 33 Bea. 431. 
 See Ante, p. 336 (A). 
 
 (g) Ante, p. 398 (6). 
 (h) Ante, p. 394 (g-q). 
 
 (i) Lacey v. Ingle, 2 Ph. 413.
 
 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 403 
 
 And a disponee of all the debtor's property cannot gain 
 priority under this rule because "all" would not include 
 any which had been already disposed of. 
 
 And there are instances in which (a) a legal estate cannot 
 now be acquired though it formerly could. For Attendant 
 Terms (i) which had been satisfied (n) before 31st Decem- 
 ber 1845, ceased on that day (a); and Attendant Terms 
 which have since become, or shall hereafter be, satisfied, 
 cease on becoming so (a) ; but those which were, on that 
 day, attendant by express declaration continue to afford 
 the same protection to purchasers as if they still subsisted 
 but had not been since dealt with (a). On the other hand 
 the legal estate in a Right can now (b) be transferred ; but 
 formerly (c) it could not and consequently priority could 
 not be conferred by an attempt to transfer it (d). 
 
 On the other hand: the court has refused to compel a 
 trustee to bring, at the instance of his beneficiary, an 
 action for the recovery of land against one who had pur- 
 chased it without notice from one who had taken possession 
 of it wrongfully and adversely to the trustee and benefi- 
 ciary (e). 
 
 (I) That is, leases, (or limitations for years) held on trust for such persons as 
 would have heen entitled to the property if no such lease or limitation had heen 
 made, or for a specific person (who claims the freehold) and for all who may 
 derive under him. Such terms have often been carved out by way of mort- 
 gage. When a mortgage is made in this way the term (subject to the rights of 
 the mortgagee) is held upon these trusts, and it was usual, before the recent 
 statute (a) for anyone purchasing the property, and at the same time paying off 
 the mortgage, (by which payment the term became "satisfied"), to cause the 
 term to be assigned to a trustee for himself, instead of being united with the 
 fee (and so put an end to), because, by these means, he gained priority (under 
 the rule discussed in this chapter) over all persons to whom the Vendor or his 
 predecessors in title might have made dispositions since the carving-out 
 of the term but before the sale, except those in which the trustee of the term 
 concurred, or for which he had specially declared himself trustee. The bene- 
 ficial interest in these terms descended to the heir like the freehold itself, and 
 was, in all respects, governed by the law applicable to freehold, not by that 
 applicable to leasehold, estates. 
 
 (II) That is, the Mortgage-debt paid, so that the term is held on trust simply 
 for the persons interested in the freehold. 
 
 Disposition of 
 All disponor's 
 property. 
 
 (a) 8-9 Vic , c. 1 12. 
 (6) Ante, p. 207 (g, h). 
 (c) Ante, p. 397 (A). 
 
 (rf) Authorities Sug. V. P. 788 (/). 
 (e) Turner v.Back, 22 Vin. Ab. 21, pi. 
 5. See also Hartly v. 0' Flaherty, Beat. 6 1. 
 
 Remarks upon 
 the Rule. 
 
 Attendant 
 
 Terms. 
 
 Compelling 
 Trustee to 
 Recover trust 
 property.
 
 404 PRIORITY BY THE LEGAL ESTATE AND SIMILAR MEANS. 
 
 Consequence 
 of the Rule. 
 Disposition of 
 the chattels of 
 a deceased 
 person. 
 
 Payment of 
 Debt. 
 
 Extension of 
 the rule. 
 
 Under the rule discussed in this chapter a disponee 
 for value of the chattels (a) or chattel interests (a) of a 
 deceased person is entitled (b) to priority over the claims 
 of the creditors for their debt, and of the personal repre- 
 sentatives for their lien (c), whether an indisputable title 
 can, (as in the case of stock (d)), or cannot, (as in that of 
 leaseholds (e), be conferred by a transfer of the legal estate; 
 and even though marriage be the only consideration (/), 
 provided that the legal estate has been transferred (/), 
 and that he is free from notice of the debts (/). And 
 again, a debtor is not obliged to pay one who derives 
 under his creditor by a disposition unaccompanied by the 
 prescribed formalities, lest a rightful claimant entitled to 
 priority under the rule should afterwards appear (g). 
 
 And, by an extension of the rule, a Debtor, whose 
 Creditor has disposed of the amount, but who has paid 
 him without knowing this, is exonerated from any claim 
 by the disponee (h). 
 
 (a) Defined Ante, p. 2,4. 
 
 (b) S pacinian v. Timbrell, (No. 2), 8 
 Sim. 260; Vilkes v. Broadmead, 2 D. G. 
 J. 566. 
 
 (c) Explained Ante, p. 37 («). 
 
 (d) D. v. B. 
 
 (e) S. t. T,, (No. 2). 
 
 (/) As in S. v. T. and D. v. B. 
 
 (g) Crossley v. City of Glasgow 4fc. 
 Co., L. R. 4 CD. 421. 
 
 (h) Authorities cited in Rabbidge v. 
 Pooley, L. R. 8 C. D. 367, in which 
 case an important qualification of this 
 doctrine is established.
 
 ( 405 ) 
 
 CHAPTER XLVIII. 
 
 PRIORITY BY REGISTRATION OP DEEDS. 
 
 A registered transaction affecting an interest in a tene- Rule, 
 ment in Ireland (a) (i) Yorkshire (b) or Middlesex (c) 
 has priority over an inconsistent interest therein, alike as 
 regards the legal estate (supposing the registered trans- 
 action to be one by which it would have passed (d)), and 
 the beneficial (e) ; and this even though the common prede- Applicability 
 cessor derived under a registrable but unregistered dispo- R eS p ect ing the 
 
 sition (f): and though the disposition first registered preferred 
 
 w ' ' to \ ° disposition, 
 
 affected, not the same interest as its rival, but an interest Title to it. 
 
 upon which the latter is grafted (g) under the doctrine 
 already (h) explained; and though the disposition first 
 registered comprised the property under a General De- 
 scription only, (as, "all after acquired property" (?')); 
 and was a mere Contract (/') ; and was without seal (k), (as, 
 
 (i) The law of Ireland on this subject -would he revolutionized if a recent 
 statute (/) were called into operation (m ) ; but I am informed, by the courtesy 
 of the Registrar of Deeds in Dublin under date of 11th January 1881, that 
 this has not yet heen done. 
 
 (a) 6 Ann., c. 2, (Ir.), (25th Nov. 
 1708). s. 4, explained 6 Bli. N. S. 32), 
 s. 5; 3" Geo. IV, c. 116, s. 6; 34-5 Vic, 
 c. 100, s. 8, 9, 13. 
 
 ( b) West Riding 2-3 Ann., c. 4, (29th 
 Sep. 1704), extended by 6 Ann., c. 62, 
 s. 34, and, as to Bargains and Sales, 5 
 Ann., c. 18: East Riding and Hull, 6 
 Ann., c. 62, (in Ruffhead, c. 35), (29th 
 Sep. 1708), extended by s. 34: North 
 Riding, 8 Geo. II, c. 6, (20th Sept. 
 1836), s. 1. 
 
 (c) 7 Ann., c. 20, (29th Sept. 1709), 
 s. 1. 
 
 (d) See Le Neve v. Le Neve, 2 W. T. 
 L.C., (4th Ed.), 41,/ 16-17. 
 
 (e) Neve v. Pennell, (E.), 2 H. & M. 
 170; Mill v. Hill, (Ir.), 3 H. L. 828; 
 
 Authorities (Ir.) in Madden on Regis- 
 tration, (Mc.Gee, Dublin, Simpkin 
 Marshall & Co, London), 18. 
 
 (f) Mill v. Hill, (Ir.), 8 H. L. 829; 
 Stuart v. Ferguson, (Ir.), Hayes 452. 
 
 (g) Eyre v. Dolphin, (Ir.), 2 Ba. & B. 
 290; sd. Millv. Hill, 3 H. L. 853. 
 
 (/») Ante, p. 195. 
 
 (i) Chary v. Fitzgerald, (2nd point), 
 5 L. R. Ir. 351 ; Gubbins v. Gubbins, 1 
 Dr. & Wal. 161n; Rodger v. Tuthill, 
 Madden on Registration, 205; Madden 
 23; questioned Madden 206, 265. 
 
 (j) McNeill v. Cahill, 2 Bli. 228; 
 Authorities in note (g). 
 
 (Jfc) Neve v. Pennell, 2 H. & M. 170. 
 
 (/) 13-14 Vic, c 72. 
 
 (m) Under the provisions of s. 3.
 
 406 PRIORITY BY REGISTRATION OF DEEDS. 
 
 a memorandum of Deposit (a) ) ; and affected the beneficial 
 interest only (b); and though the preferred claimant had 
 neither possession (c), nor the legal estate (c), (especially if 
 he had contracted for a transfer of the legal estate (c)): and 
 though he who made the disposition first registered was 
 not the person who made the postponed disposition, but 
 one deriving the estate (d), or a power to dispose of it (e), 
 under him by (i) an unregistrable transmission, (whether 
 by Death (d), Marriage (e), or Levy of Execution (/)) ; or, (it 
 seems), by a registrable transmission (g) (unless the enact- 
 ment by which the registration of it is directed expressly 
 require such registration to prevent its postponement); 
 or, perhaps, by an unregistrable disposition (n), as, an 
 oral agreement with Deposit (h), a Surrender by operation 
 of law (i), Part Performance (/), &c; but not by a regis- 
 
 (i) That is, a registered disposition has the same priority as if all the unregis- 
 trable and most of the registrable transmissions, and probably the unregistrable 
 dispositions, through which title to it is traced, had been registrable, and had, 
 ■when they occurred, been registered. Mr. Madden infers (/) that it has also 
 the same priority as if all registrable dispositions through which title is traced 
 had been registered when it itself actually was so; but he admits that this is 
 contrary to the earlier decisions (m), one (m) of which however merely decided 
 that it has not the same priority as if such preceding disposition had been 
 registered when made. Under this head dispositions made under powers 
 conferred by law must be included. 
 
 (n) This is contrary to principle, for, whether the Registration Acts were 
 meant to punish the negligent purchaser, or to assist the subsequent ignorant 
 one, their purpose requires that a registered disposition should take priority 
 over a deposit &c, unless a memorandum of the latter has been put into 
 writing and registered, and a memorial of an oral contract can be as readily 
 framed as a memorial of a written one. 
 
 (a) Moorev. Culverhouse, 27 Bea. 639, (/t) So held in Sumpter v. Cooper, 2 
 (overruling Wright v. Stanfield, ib. 8); B. & Ad. 223; Stephens 1 Estate, I. R. 10 
 re Hamilton, 9 Ir. Ch. 512. Eq. 282; Nixon v. Darley, I. R. 2 C. L. 
 
 (b) Authorities in Madden, 18; Mill 467; contra Mc. Kinney's Estate, I. R. 6 
 v. Bill, 3 H. L. 828. Eq. 445. 
 
 (c) Neve v. Pennell. («') Howell v. Kelly, 10 Ir. L. 192; 
 
 (d) Chadwick v. Turner, (E.), L. R. 1 For explanation of such a disposition 
 Ch. 310; sd. (in effect) Warhurton v. see Ante, p. 180 (i.) 
 
 Loveland, (Ir.), 6 Bli. N. S. 31. (j) Reilly v. Garnet, I. R. 7 Eq. 18. 
 
 (e) W. v. L., 6 Bli. N. S. 1. (k) Madden 187. 
 
 If) O' Connor v. Stephens, 13 Ir. CI. 63. (/) Honeycomb v. Waldron, Stra. 
 (g) These are enumerated at the end 1063. 
 of this Chapter.
 
 PRIORITY BY REGISTRATION OF DEEDS. 
 
 407 
 
 trable disposition (a), (unless (i) it was testamentary (&), 
 and the first registered disposition was registered since 7th 
 August 1874 (£)); and though the registered disposition was 
 gratuitous while the postponed one was for value, provided 
 priority is only sought to the extent of a disposition for 
 value derived under the former (c); and though the pre- 
 ferred disponee has Constructive Notice (d) or vague 
 Information (e) (unless perhaps believed (/)) of the rival 
 interest; and though he would have been informed of it if 
 he had asked the known custodian of the deeds whether 
 any rival interest existed (g) (unless his abstinence from 
 inquiry was fraudulent (h)); and though he had even 
 actual (i) notice of it when he registered (j) ; and though the 
 preferred interest is such (k) a Lease as is exempt from 
 registration (/) ; and though the postponed transaction be 
 (as to Yorkshire (m) or Middlesex (»)) a Testamentary dis- 
 position ; and though it be a Contract (0), (except in certain 
 cases (p))', and (it seems) though it be a Transmission by 
 Bankruptcy (q), Liquidation (r), or Arrangement (s) (11), 
 
 (I) That is, in Yorkshire (b) or Middlesex (b), for in Ireland an unregis- 
 tered will has the same priority as if it were registered (p). 
 
 (II) Some (<) of the enactments seem to imply that Bankruptcy-creditors 
 can gain priority by registration. 
 
 (a) Below, cited, Fury y. Smith, and 
 other cases. 
 
 (6) 37-8 Vic, c. 78, s. 8. 
 
 (c) Drew v. Norbury, (I.), 3 J. & L. 
 303-4; and see 13 Ir. Ch. 314; Mc. 
 Donagh's Estate, 3 L. R. Ir. 408. 
 
 (<f) Popham v. Baldwin, (I.), 2 Jo. 
 320 ; Wallace v. Donegal, (I), 1 Dr. & 
 Wal. 461 ; sd. (at least as to some kinds 
 of notice) Agra. Bk. v. Barry, (I.), L. 
 R. 7 H. L. 149, (disapproving Wormald 
 v. Maitland, (E.), 35 L. J. Ch. 69); and 
 therefore, by implication, Allen's Estate, 
 I. R. 1 Eq. 455); and see Credland v. 
 Potter, (E.), L. R. 10 Ch.8. In Wyatt 
 v. Barwell, (E.), 19 Vez. 439 there was 
 no notice of any kind. 
 For a definition of Constructive Notice 
 see below, Ch. LII. [478. 
 
 («) Jolland v. Stainbridge, (E.), 3 Vez. 
 
 (f) See tenor of judgment in /. v. S. 
 
 (g) Lee v. Clutton, 46 L. J. Ch. 48. 
 (A) Sd. Lee v. Clutton, 45 L. J. Ch. 47a. 
 
 (i) See below in this chapter, — ex- 
 ception as to actual notice. 
 
 (j) Elsey v. Lutyens, 8 Hare 159; 
 Essex v. Baugh, 1 Y. & C. Ch. 620. 
 
 (fr) As to what leases belong to 
 these classes, see below, in this Ch. 
 
 (/) Talbot v. Gulmartin, 3 Ir. Jur. 171. 
 
 (m) West Riding, 2-3 Ann., c. 4, s. 
 1, (East Riding and Hull); 6 Ann. c. 
 62, (in Ruffhead, c. 35), s. 1; North 
 Riding, 8 Geo. II, c. 6, s. 1. 
 
 (n) 7 Ann., c. 20, s. 1. 
 
 (o) Wight's Mortgage-trust, (E.), L. 
 R. 16 Eq. 41. 
 
 (p) See below, in this chapter. 
 
 ( ? ) 32-3 Vic, c. 71 (E.), s. 83 (8 J; 
 35-6 Vic, (I), c 58, s. 121 (7); 20-1 
 Vic, c 60 (I.), s. 269; 12-13 Vic, c. 
 106 (E.), s. 143. 
 
 (r) 32-3 Vic, c 71 (E.), s. 125 (6). 
 
 (5) 20-1 Vic, c 60(1), s. 269. 
 
 (0 20-1 Vic, o. 60 (I), s. 269, 349; 
 
 Value. 
 
 Notice. 
 
 Lease. 
 
 Respecting the 
 
 postponed 
 
 transaction. 
 
 Testamentary. 
 
 Contract. 
 
 Transmission.
 
 408 
 
 PRIORITY BY REGISTRATION OF DEEDS. 
 
 Grant under 
 Land Improve- 
 ment acts. 
 
 Locality. 
 
 (unless, in cases falling under the earlier statutes (a), the 
 Bankruptcy &c. was registered within 2 months &c, or 
 the disposition first registered was, obtained gratuitously 
 or with notice of the Bankruptcy &c.,) Winding-up (b) 
 before 2nd November 1862 (c), Civil bill decree on eject- 
 ment against a tenant in Ireland (d) (at least to a con- 
 siderable extent (d)), or Judgment, (under which is 
 included, — as regards any interest in a tenement in 
 Ireland (e) except a chattel interest (/), any judgment 
 entered on or since 15th July 1850 (e), — as regards any 
 interest in a tenement there acquired for value on or since 
 that day (g), except a chattel interest (/), any judgment 
 whenever entered, — and, as regards Yorkshire (h) and 
 Middlesex (i), any judgment (J) (1), except a Crown 
 judgment (k), and except, as regards the North Riding, a 
 judgment registered within 20 days after being entered (I)); 
 and though the postponed disposition was a grant of a 
 rent-charge before 29th July 1864, under the improvement 
 of Land Acts (m) ; and though the postponed transaction 
 occurred outside the registry country (n) or county (11); 
 
 (I) Unregistered Judgments are postponed to purchasers of tenements in the 
 North Riding (0), and the enactments respecting the East (p) and West (q) 
 Ridings and Middlesex (r) are construed (s) as meaning no more, though they 
 purport to deprive judgments of all effect against such tenements until registra- 
 tion. 
 
 (II) This is but an application of the maxim lex loci rei sitae fyc. 
 
 12-13 Vic, c. 106 (E.), s. 143; 11-12 (j) Westbrook v. Blythe, 2 E. & B. 
 
 Vic, c. 4, s. 5, 29. See also below in 
 this Ch. where I cite Cathrow v. Eade. 
 
 (a) 12-13 Vic, c 106 (E.), s. 143; 
 20-1 Vic, 0. 60 (I.), s. 269. 
 
 (6) 11-12 Vic, c. 45, s. 29, and see 
 s. 68. 
 
 (c) 25-6 Vic, c. 89, s. 2, 205, 206; 
 As to Windings-up since that day see 
 Lindley (4th Ed.), 1270. 
 
 (d) 14-15 Vic, c 57, s. 89. 
 
 (e) 13-14 Vic, c. 29, s. 1, 6. 
 
 (f) s. 10. 
 (9) s- 2. 
 
 (h) West Riding, East Riding, and 
 Hull, 6 Ann., c. 62 (Ruff., c 35), s. 19, 
 34. 
 
 (s) 7 Ann., c. 20, s. 18. 
 
 737 ; Hughes v. Lumley, 4 E. & B. 274; 
 Benham v. Keane, 3 D. G. F. J. 318; 
 Neve v. Flood, 23 Bea. 666. 
 
 (k) Authorities in notes (d, e). The 
 Crown is. not expressly excepted in the 
 Irish Act. 
 
 (/) 8 Geo. II, c. 6, s. 33. 
 
 (m) 12-13 Vic, c 100, s. 14. But 
 the 27-8 Vic, c 1 14, s. 56, coutains no 
 corresponding provision. 
 
 (») Battersby v. Roch/ort, 2 J. & L. 
 431. 
 
 (o) 8 Geo. II, c. 6, s. I. 
 
 (p) 6 Ana, c. 62, (Ruff., c. 35), s. 19. 
 
 (q) 5-6 Ann., c. 18, s. 4. 
 
 (r) 7 Ann., c 20, s. 18. 
 
 (.v) Tunsiall v. Trappes, 3 Sim. 307.
 
 PRIORITY BY REGISTRATION OF DEEDS. 
 
 409 
 
 and though the postponed disposition was a further charge 
 to a Mortgagee who already had the legal estate (a) ; and 
 though (as to Ireland) the postponed disponee acquired the 
 legal estate for value before (b), or without notice of (c), the 
 registered disposition, while the latter affected the bene- 
 ficial interest only (c); and though the postponed dispo- 
 sition was registered on the same day as the preferred one 
 (d), and though an action for the enforcement of the rival 
 claim is pending (e). 
 
 But the rule only applies if the registration of the 
 preferred disposition accords with the provisions of the acts 
 (f) (i); and in favour only of property mentioned (g) or 
 referred to (h) in the Memorial; and only if (when the 
 property is in Yorkshire (*), or Middlesex (j), or, unless 
 (k) the contest arises between two registered dispositions, 
 Ireland (/)) the disposition first registered (m), or a later 
 disposition through which also the preferred interest is 
 derived (n), was made for value (n). 
 
 And the rule does not apply to Copyholds (in) in York- 
 shire (o) or Middlesex (p). Nor is priority conferred by it 
 
 (i) This lias been somewhat modified (<j). 
 
 (11) The purchase of the position of one who derives gratuitously (r) under 
 the original dispouor is not, for this purpose, treated as made for value. 
 
 (in) The Court Rolls constitute in effect a register of Copyholds (s). 
 
 Legal estate. 
 
 O) Credlaiidv. Potter, (E.), L. R. 10 
 Ch. 8. 
 
 (6) 6 Ann., c. 2 (Ir.), s. 4. 
 
 (c) Ante, p. 396 (a). 
 
 (d) Neve v. Pennel, 2 H. & M. 187-9. 
 
 (e) Wallace v. Donegal, (I), 1 Dr. & 
 Wal. 461; sd. Wyatt v. Barwell, (E)., 
 19 Vez. 439. 
 
 (f) Sug.V.P. 731 pi. 9 (fin) ; Stephens' 
 Estate, I. R. 10 Eq. 284; Church's Es- 
 tate, 1 L. R. Ir. 255. 
 
 (g) See Madden 43-4. 
 
 (A) Madden 54-5, modified in Clearv 
 v. Fitzgerald, 5 L. R. Ir. 351. 
 
 (») West Riding 2-3 Ann., c 4. s. 1 ; 
 East Riding and Hull, 6 Ann., c. 62 
 (Ruff., c. 35), s 1 ; North Riding, 8 Geo. 
 
 II, c. 6, s. 1. 
 
 (j) 7 Ann., c. 20, s. 1. 
 
 (fc) 6 Ann., (Ir.), c. 2, s. 4. 
 
 (0 s. 5 ; Reilly v. Garnett, I. R. 7 Eq. 
 27. 
 
 (hi) Authorities in notes (g-l). 
 
 (n) Authorities in p. 407, (c). 
 
 (o) West Riding 2-3 Ann., c. 4, s. 16; 
 East Rg. and Hull, 6 Ann., c. 62 (Ruff, 
 c. 35), s. 29 ; North Rg., 8 Geo. II, c. 6, 
 s. 34. See Sug. V. P., 732 /. I, 2. 
 
 (p) 7 Ann., c. 20, s. 17. 
 
 (q) See Madden, 46-82. 
 
 (r) Reilly v. Garnett, I. R. 7 Eq. 27. 
 
 (s) See below Ch. L. But see also 
 Horlock v. Priestly, 2 Sim. 75. 
 
 52 
 
 Time of 
 
 Registration. 
 
 Pending 
 action. 
 
 Conditions of 
 the Rule. 
 Form of the 
 Registration. 
 
 Value. 
 
 Exceptions. 
 Tenure. 
 Respecting the 
 preferred 
 transaction.
 
 410 
 
 PRIORITY BY REGISTRATION OF DEEDS. 
 
 Respecting the 
 
 postponed 
 
 interest. 
 
 Crown. 
 
 Testamentary 
 
 disposition. 
 
 on a disposition made by one who, by a registrable (a) 
 disposition, derives under the common disponor (b), though 
 he derives also through a subsequent unregistrable trans- 
 mission (c), unless the earlier registrable disposition was 
 itself registered before (d), or otherwise entitled to priority 
 over (e), its rival, or else falls within the exceptions stated 
 further on (in this chapter) respecting testamentary dispo- 
 sitions. Nor is priority conferred by it on a transmission, 
 whether registrable, (as, by Judgment-lien in Yorkshire 
 (f), except the North Riding respecting which the enact- 
 ment is different (g), or in Middlesex (h),) and registered 
 (i), or unregistrable, (as by Bankruptcy under the earlier 
 statutes (j), or by Judgment-lien in Ireland (&),) unless, 
 perhaps, the transmission was substantially a disposition, 
 (as, a Judgment confessed (I),) or was a Judgment in Ireland 
 paramount to some registered disposition which itself had 
 priority over the unregistered disposition in question [in). 
 
 Nor does the rule apply against the Crown (w), at least 
 as to crown-judgments affecting tenements in Yorkshire (o) 
 or Middlesex (p) ; nor against a Testamentary disposition 
 affecting tenements in Ireland (<?); nor against a Testa- 
 mentary disposition affecting tenements in Yorkshire or 
 
 (a) See above, p. 406 (A). 
 
 (b) Fury v. Smith, (I.), S. & B., 134; 
 Rennick v. Armstrong, (I.), S. & B., 152 ; 
 Scrqfton v. Quincey, (E.), 2 Vez. 413; 
 and see Honeycomb v. Waldron, Stra. 
 1063, and the authorities- cited in Mad- 
 den 189. 
 
 (c) F. v. S. 
 
 (d) Authorities in p. 405, (a), . 
 
 (e) Involved in the principle of the 
 decisions. 
 
 (f) West Riding, 5-6 Ann., c. 18, s. 
 4; East Riding and Hull, 6 Ann., c. 62, 
 (Ruff., c. 35), s. 19. 
 
 (g) 8 Geo. II, c. 6, s. 1. 
 (A) 7 Ann., c. 20, s. 18. 
 
 (t) Cathrow v. Eade, (Middlesex), 1 
 Sm. & G. 423. See however above p. 
 407, n. (Q. 
 
 (j) Jonts v. Gibbons, (decided on the 
 West India, Registry Acts, and on the 
 
 21 Ja. I, c. 19), 9 Vez. 411. 
 
 (i) Murtagh v. Tisdall, 3 Ir. Eq. 35, 
 97; Re Scott, 14 Ir. Ch. 57; Lawless v. 
 Kenny, 1 H. & B. 377; D'Arcy v. 
 Chambers, 1 S. & L. 467. 
 
 (/) See Benham v. Keane, 1 H. & M. 
 703, 3D. G.F.J. 322 (fin). 
 
 (m) Latouche v. Dunsany, 1 S. & L. 
 137; Authorities in Madden, 241-2; 
 interpreting 6 Ann., (Ir.), c. 2, s. 5. 
 
 (n) For the Crown is not mentioned. 
 See Ante, p. 371 (e), Magdalen College 
 Case, 1 1 Co. 66. 
 
 (o) West Riding, 5-6 Ann., c. 18, s. 
 4; East Riding and Hull, 6 Ann., c. 62, 
 (Ruff., c. 35,) s. 19; North Riding, 8 
 Geo. II, c. 6, s. 1 . 
 
 (/>) 7 Ann., c. 20, s. 18. 
 
 (q) Madden 1 1 ; Buckley v. Lanauxe, 
 L. & G. t. PI. 341.
 
 &c. Lease. 
 
 PRIORITY BY REGISTRATION OF DEEDS. 411 
 
 Middlesex and registered within the period prescribed (a) 
 (i), or within the prescribed extension of it (i) unless in 
 the latter case the transaction first registered was a 
 purchase &c. for value of or a judgment leviable upon a 
 tenement in the North Riding (b), or in Middlesex (c), 
 and three (b) or five (c) years respectively [with the further 
 period if any to the date of the transaction (n)] elapse 
 without registration of the will; nor against a disposition 
 for value (d) (in) derived under a testamentary disposition 
 and registered since 7th August, 1874, but before registra- 
 tion of its rival (d) ; nor does it apply against (e) a Lease for Occupation 
 years, where the actual possession and occupation (iv) go 
 along with the lease (/) (v), unless the years exceed (e), 
 
 (I) Registration within that period operates as if made at the testator's death 
 (a). The prescribed period from the testator's death is. 6 months if the testator 
 died (as to tenements in the West Riding (g) ) in England, or, (as to the East 
 Riding (A) Hull (A) the North Riding (t) and Middlesex (j) ) in Great Britain; 
 or 3 years (fc), if he died elsewhere. But, if a person interested under a Will 
 be disabled "by the contest " (/) (in Middlesex "the contest, concealment, or 
 suppression" ("»)) "of the Will," or other inevitable difficulty (n), without 
 wilful neglect or default («), from exhibiting a memorial within the period, then 
 6 months after the attainment of the will or probate, or removal of the impedi- 
 ment is sufficient (o) if (as to the East (p) and North (9) Ridings and Hull (p) 
 and Middlesex (»«)) a memorial of the impediment be registered within the pre- 
 scribed period from the death, (namely, 6 months as to Yorkshire and 2 years 
 as to Middlesex, when the death takes place in Great Britain, but 3 years as to 
 Yorkshire and 4 as to Middlesex when it takes place elsewhere). 
 
 (II) The words in square brackets must be implied; otherwise each enactment 
 will be contrary to its preceding section. 
 
 (III) The act mentions only " Purchasers" and " Mortgagees", hut I assume 
 that the former term includes all disponees for value. 
 
 (iv) The words "and occupation" are omitted in the Irish act, but there are 
 authorities to show that they are implied (r). 
 
 (v) These words are, (I believe,) understood to prevent the postponement of 
 
 (a) West Riding 2-3 Ann., c. 4, s. 20; (g) 2-3 Ann., c. 4, s. 20. 
 
 East Riding and Hull, 6 Ann., c. 62, (A) 6 Ann., c. 62, (Ruff. c. 35), s. 14. 
 
 (Ruff., c. 35), s. 14; North Riding, 8 («') 8 Geo. II, c 6, s. 15. 
 
 Geo. II, c. 6, s. 15; Middlesex, 7 Ann,, (/) 7 Ann., c. 20, s. 8. 
 
 c. 20, s. 8. (i) Authorities in n. (g-j). 
 
 (6) 8 Geo. II, c 6, s. 17. (0 West Riding, 2-3 Ann., c. 4, s. 
 
 (c) 7 Ann., c. 20, s. 10. 21; East Riding and Hull, 6 Ann., c. 
 
 (d) 37-8 Vic, c. 78, s. 8. 62, s. 15; North Riding, 8 Geo. II, c. 6, 
 
 (e) See however, ante, p. 407 (k, /). s. 15. 
 (/; West Riding, 2-3 Ann.,c. 4,s. 16; (m) 7 Ann., c. 20, s. 9. 
 
 East Riding and Hull, 6 Ann., c. 62, (n) Authorities in n. (l-m). 
 
 (Ruff., c. 35), s. 29; North Riding, 8 (o) 2-3 Ann., c. 4, s. 21. 
 
 Geo. II, c. 6, s. 34; Middlesex, 7 Ann., {p) 6 Ann., c. 62, s. 15. 
 
 c. 20, s. 17 ; Ireland, 6 Ann , (Ir), c. 2, (q) 8 Geo. II, c. 6, s. 15. 
 
 s. 14. (r) Madden, 16.
 
 412 
 
 PRIORITY BY REGISTRATION OF DEEDS, 
 
 Charge. 
 
 Indisputable 
 
 title. 
 
 Oral 
 disposition. 
 
 Transmission. 
 
 or be of right renewable for a period exceeding (a), twenty- 
 one years; nor against a Lease at rackrent of tene- 
 ments in Yorkshire (b) or Middlesex (c); nor (it has been 
 held) does it apply between rival claimants on a Charge 
 for money (d) unless secured by at least an agreement to 
 mortgage (e), or (perhaps) a term of years (/) ; nor against 
 a title derived under the Declaration of title (g), or Land 
 transfer (h), act; or, perhaps, (i) under the Landed estates 
 (*), or Record of title (/), act ; nor (it is (k) held) against a 
 disposition made without writing (n), as, a mortgage by 
 Deposit without memorandum (/), or a Surrender by 
 operation of law (m); nor against a Transmission (n) (in), 
 whether by the means already (n) referred to or by a 
 
 such a lease to a disposition made by the landlord while the premises continue 
 to be occupied by the only person, or by all the persons, interested in the lease, 
 though such disposition be registered, and the lease be not registered; and 
 perhaps (o) too, to prevent the postponement of a disposition of the leasehold 
 (made while the premises continue to be occupied as above) to a later disposi- 
 tion made while they continue to be so occupied, though the later disposition 
 be registered before the earlier. But whether occupation by one or some of the 
 persons interested, and in particular whether occupation by the mortgagor after 
 a legal mortgage of the leasehold, will be sufficient for both or either of these 
 purposes, is considered doubtful (p). 
 
 (i) This is far from clear on the wording (q) of the two latter acts. All 
 these acts are considered in Ch. LV. 
 
 (n) This exception seems founded on the assumption that the object of the 
 act was to punish disponees who could have registered their dispositions but 
 would not. Its real object seems rather to have been to enable purchasers to 
 ascertain the state of the title; but even if the object was as above suggested 
 the act must also have intended to punish those who could have stipulated 
 for writing but did uot. In either view, therefore, an oral disposition ought to 
 be postponed as effectually as a written one. 
 
 (m) This covers some of the cases already (r) cited. 
 
 (a) Clarke v. Armstrong, 5 Ir. Jur. N. 
 S. 89. 
 
 (6) West Riding, 2-3 Ann., c. 4, s. 1 6 ; 
 East Riding and Hull, 6 Ann., c. 62, 
 (Ruff., c. 35), s. 29 ; North Riding, 8 
 Geo. II, c. 6, s. 34. 
 
 (c) 7 Ann., c. 20, s. 17. 
 
 (d) Malcolm v. Charhvoorth, 1 Ke. 63, 
 73. 
 
 (e) Gardiner v. Blessington, 1 Ir. Ch. 
 64, 79. 
 
 (f) See r. Jennings, 8 Ir. Ch. 421. 
 
 (g) 25-6 Vic, c. 53 (E.), s. 104. 
 \h) 38-9 Vic, c. 87 (E.), s. 127. 
 
 21-2 Vic, o. 72 (I.), s. 51, 52,61, 
 85. 
 
 (j) 28-9 Vic, c. 88 (I.), s. 16. 
 
 (ft) Powell v. Kelly, 10 Ir. L. 192; 
 Sumpter v. Cooper, 2 B. & Ad. 223; 
 Reilly v. Garnett, I. R. 7 Eq. 27. 
 
 (/) S. v. C. 
 
 (m) P. v. K. 
 
 (n) Cases cited in p. 406 (d, e). 
 
 (o) Contra, sd. Fleming v. Neville, 
 Hayes, 23. 
 
 (p) See 9 Pri. 268 /. 1-5; Madden, 
 14-17. 
 
 (g)See21-2 Vic, c.72,s.51, 52,61, 85. 
 
 (r) Antt, p. 406, (rf-«).
 
 PRIORITY BY REGISTRATION OF DEEDS. 
 
 413 
 
 Earlier 
 Registration 
 
 Priority by 
 other Rule. 
 
 Solicitor's lien (a), though a registrable but unregistered 
 disposition be the next link in the title (b) except in the 
 cases referred to above (c); nor against a transaction 
 registered before (d), or simultaneously with (e), that 
 sought to be established (i); nor against a transaction 
 entitled to priority under some other rule (/), except, (in 
 Ireland,) the rule that priority is conferred by the Legal 
 estate (g). Nor is priority as to the beneficial interest (//) Notice. 
 conferred by this rule on a disponee who (i) or whose 
 agent (j) (n) knew of the rival interest when he obtained 
 his own disposition (k), or, probably, when it was formally 
 completed (I), or the consideration rendered (I), even 
 though the disponor himself was such agent (m) and had 
 created the rival interest also for value (m), and even 
 though the rival interest was a judgment-lien (n) (but now 
 only if registered in the Common Pleas (o)), and that even 
 as to tenements in Yorkshire (/>) or Middlesex (p) unless 
 
 (i) When the memorials are denoted by numerals, that denoted by the 
 earlier one is presumed to have been first registered (9). 
 
 (11) Notice must be clearly proved for this purpose (r), as it also must for 
 that of postponing the legal estate (*). Means of knowledge do not seem to 
 postpone a registered disposition (*). 
 
 («) Bernard v. Drought, 1 Moll. 38. 
 
 (b) O'Connor v. Stephens, 13 Ir. C. L. 
 63. 
 
 (c) P. 406 (h-j), 407 (q)- 408 (n). 
 
 (d) Authorities cited above p. 405 (a-e). 
 
 (e) Moore v. Mahon, (I.), 2 Ir. Jur. N. 
 S. 221. 
 
 (f) See Authorities in Madden, 192 
 /. 26, 193 I. 24, 194 /. 9, 11. 
 
 (g) Ante, p. 395-6, 409 {b, c). 
 
 (A) Confined to that: — Doe v. Ahop, 
 
 5 B. & A. 142; Lawless v. Kenny, 1 H. 
 
 6 B. 377 ; sd. Le Neve v. Le Neve, 2 W. 
 T. L. 0. 41 /. 17. 
 
 (i) Agra Bk. v. Barry, (I.), L. R. 7 
 H. L. 148; Bradley v. Riches, (E.), L. 
 It. 9 C. D. 189; Forbes v. Deniston, (I.), 
 4 B. P. C. 1S9; Le Neve v. Le Neve, 
 (E.), 2 W. T. L. C. 35; Majoribanks v. 
 Hovenden, 6 Ir. Eq. 242; Rolland v. 
 Harte, (E.), L. R. 6 Ch. 678; Sheldon v. 
 Cox, (E.), 2 Ed. 228; Authorities in 
 
 Madden, 2 14. 
 
 (j) B. v. R. ; L. N. v. L.N; R. v. H. j 
 S. v. C; As to when an agent's 
 knowledge is equivalent to his princi- 
 pal's see Ch. LIII. 
 
 (*) As in B. v. R.; L. N. v. L. N.- 
 R. v. H. 
 
 (I) So, as to notice for postponing the 
 Legal estate, ante, p. 402 (c), below Ch. 
 XLIX. See also L. R. 7 H. L. 158/3. 
 
 (m) B. v. R,; F. v. D.; M. v. //.; R. 
 v. H.-S.v. C. 
 
 (it) Davis v. Strathmore, 16 Vez. 618. 
 
 (o) See below Ch. LIV. 
 
 (p) Ante, p. 408 (1). 
 
 (q) Neve v. Pennell, 2 H. & M. 180. 
 
 (r) Chadwick v. Turner, (E.), L. R. 1 
 Ch. 319, /. 26; Hine v. Dodd, 2 Atk. 
 275 (4th par. of judgment). 
 
 (*) See commencement of Ch. LU. 
 
 (t) See ante, p. 407 (d).
 
 414 
 
 PRIORITY BY REGISTRATION OF DEEDS. 
 
 ! Extensions of 
 the principle. 
 Landlord 
 recovering in 
 
 ejectment. 
 
 Registrations 
 by which 
 priority is not 
 affected. 
 
 the rival interest was acquired in bad faith (a), or perhaps 
 by transmission (b); nor, (it has been held (c),) on a 
 registrable disposition derived (though for value (c) and 
 without notice (c)) under such a disponee as last men-^ 
 tioned unless his disposition also has been registered (d). 
 
 Such are the rules relative to the registration of dispo- 
 sitions of tenements, and, on the same principle, Land- 
 lords ejecting tenants in Ireland are entitled, on registering 
 their ejectment-decree, to priority over all dispositions &c. 
 by the tenant (e) (i), unless the proceedings were grounded 
 on non-payment of rent (e). 
 
 There are also several transactions which the law directs 
 to be registered for the information of purchasers, but 
 which are not postponed for non-registration. These 
 include, in England, Bankruptcy (/), and some other 
 matters (g), and orders by which rents-charges are granted 
 under the Improvement of Land Acts (h) ; and, in Ireland, 
 orders by which rents-charges (h) or annuities (i) are 
 granted, or loans (;') authorized, under these acts; certifi- 
 cates of sums advanced under them (/); satisfaction of 
 mortgages (k) ; certificates of the satisfaction of Judgment- 
 Mortgages (I); Declarations of Title under the Landed 
 Estates Court {in); and orders (n) by it for Partition, 
 Exchange, or Allotment. 
 
 (i) Nor need they serve mortgagees 
 latter have registered within 6 months 
 
 (a) Necessary, Mc.Seill v. Cahill, 2 
 Bli. 228. 
 
 (b) Consider the principle of Edwards 
 v. Edwards. L. R. 2 C. D. 291. 
 
 (c) Fordv. White, (E.), 16 Bea. 120. 
 
 (d) Chadwick v. Turner, (E.), L. R. 1 
 Ch. 320. 
 
 (e) 14-15 Vic, c. 57, s. 89. 
 
 (f) As to the bankruptcy under the 
 present act, see ante. p. 407, (<?-•$)• As 
 to the previous one see 12-13 Vic, c. 
 106, s. 143. 
 
 (g) Sug. V. P. 730 (g, h. i). 
 
 (h) 27-8 Vic, c 114, (as to those 
 granted since 29th July 1864), s. 56. 
 
 or assignees of the tenant's, unless the 
 (o). 
 
 The registration of those granted pre- 
 viously was directed by the 12-13, Vic, 
 6. 100, s. 14, but it also provided for 
 their postponement, see ante, p. 408 (m). 
 
 (i) 23-4 Vic, c. 153, s 20. 
 
 (j) 10 Vic, o. 32, s. 21. Such cer- 
 tificates are abolished by 12-13 Vic, 6. 
 59, s. 5. 
 
 (fc) 8 Geo. I, (Ir.), c 15, s. 3; 8 Ann. 
 (Ir.), c 10, s. 3. 
 
 (/) 13-14 Vic , c. 29, s. 9; 21-2 Vic, 
 C. 105, s. 5. 
 
 (m) 21-2 Vic, c. 72, s. 51. 
 
 (n) s. 85 (fin). 
 
 (o) 8 Geo. II, (Ir.), c 2, s. 5.
 
 PRIORITY BY REGISTRATION OF DEEDS. 415 
 
 And, as regards Charitable gifts of tenements in Ireland, 
 registration is substituted (a), for enrolment in Chancery 
 
 As to Registration under the Bedford Level Act, see 
 the authorities in the notes (c). 
 
 (a) 7-8 Vic, c. 97, 9. 16. (c) 15 Cha. II, c. 17, s. 8; Willis r, 
 
 (b) Ante, p. 135. Brown, 10 Sim. 127.
 
 ( 416 ) 
 
 General 
 principle. 
 
 " Actual 
 
 Notice " 
 
 defined. 
 
 " Constructive 
 
 Notice" 
 
 defined. 
 
 CHAPTER XLIX. 
 
 NOTICE DISENTITLING A PURCHASER TO PRIORITY. 
 
 An intending disponee who, knowing that his disponor 
 is not fully entitled, seeks, by a legal technicality, to bar 
 the interests of others, is little better than a thief; but our 
 Courts go beyond this principle, and hold that Notice of a 
 rival interest prevents the application of the rules in the 
 two preceding chapters (a), whether it affect the disponee 
 himself (b), or his Agent (c); and whether it consist in 
 knowledge (d) (which is termed "Actual Notice"), or, 
 under certain circumstances, in the means of knowledge 
 (e), (which are then termed "Constructive Notice" Ci);) 
 and whether the subject be a Tenement (/), a Chose in 
 action (g) (including Stock (A) and, it seems, a Bill of 
 Exchange (z)), or otherwise (/); and whatever the nature 
 of the notified interest (k) ; and whether it was derived by 
 Transmission,— as, a Vendor's lien(^), a Wife's lien (m) under 
 the doctrine already (n) stated, or, probably, a right to 
 
 (i) See for judicial definitions, Sug. V. P. 782, pars. 65, 66, 67, where, how- 
 ever, Lord Beougham's definition seems to refer exclusively to imputative 
 notice. 
 
 («) Ch. XLVII, XL VIII, especially 
 pp. 388, 402 (c, rf,) 405, 407, 413. 
 
 (6) Authorities in Lewin on Trusts 
 (5th Ed.), 616 (c); and in 2 W. T. L. 
 C. (4th Ed.), 47a. 
 
 (c) Authorities helow, Ch. LIII. 
 
 (d) Below, Ch. LII; Crofts v. Wilkin- 
 son, (an extreme case), 4 Q. B. 74; 
 Shepherd v. Titley, (extreme case), 2 
 Atk. 350. 
 
 (e) Below, LII. 
 
 (J) Authorities cited or referred to 
 ahove, notes (b-e). 
 
 (g) Spencer v. Clarke, L. R. 9 Ch. 
 
 137; Warburton v. Hill, 1 Kay. 470. 
 
 (h) Warburton v. Hill, Kay. 470; 
 Assumed Dodds v. Hills, 2 H. & M. 424. 
 
 (i) See Kidson v. Dilworth, 5 Pri. 564; 
 and ante, p. 377 («, /). 
 
 0; Ante, p. 377 (j,k). 
 
 (ft) 2 White & Tudor's, L. C. Eq. 
 (4th Ed.), 47; 1 W. T. L. C. 687a. 
 
 (I) Mackreth v. Symmons, 1 W. T. L. 
 C. 289; Sug. V. P. 680 (ft). 
 
 (m) Woodyatt v. Gresley, 8 Sim. 180; 
 Hamilton v. Royse, 2 S. & L. 328. 
 
 («) Ante, p. 330 (o).
 
 of the Rule. 
 
 NOTICE DISENTITLING A PURCHASER TO PRIORITY. 417 
 
 Rectify a Settlement (a), a Judgment (b) (though to secure 
 a performance of a collateral act (c) but now in England 
 only if duly registered and re- registered (d)), an Execution 
 against goods (e) under the rule already (/) referred to, or the 
 right of Next of Kin to invalidate an improvident dispo- 
 sition of the Executor's (g) (i), (but not a right to Stop in 
 Transitu (h) unless the disponee knew of the insolvency (i)), 
 — or by Disposition (j), — including a mortgage by Deposit 
 (k), and a Declaration of Trust (/), — or by Representation 
 — (though merely an implied representation of intention 
 («/); and whether the advantage relied on was the Legal 
 estate (n), or the circumstances appropriate to choses in 
 action (0), or Registration {p) in a Register county or in 
 Ireland; and whether the disponee who seeks priority be a 
 Purchaser (q), Mortgagee, Lessee (r), Tenant from year to 
 year (s), or otherwise; and though the interest clothed Applicability 
 with the legal estate be a Further Charge to a mortgagee 
 who had, by his mortgage, acquired that estate before the 
 
 (1) An Executor has an implied power to dispose for value (<)• A purchaser 
 from him can therefore only be postponed by notice of an intention to misapply 
 the purchase-money or otherwise exercise the power improperly («). The same 
 holds as to a tenement over which the testator has expressly given his execu- 
 tors a similar power («). 
 
 («) See authorities cited in Sug. V. (j) Le Neve v. Lt Seve, 2 W. T. L. 
 
 P. 731, par. 64. C. (4th Ed), 35. 
 
 (6) Tunstall V. Trappes, 3 Sim 286; (*) Bird v. Ellames, 2 Ans. 427. 
 
 Authorities in Sug. V. P. 518 (h, (/) 2 \V. T. L. C 47b; Bales v. John- 
 
 i, k) , sd. Forth v. Sorfolk, 4 Madd. 505 ; son, Johns. 304. 
 
 and, as against a purchaser under a (m) Beaufort v. Patrick, 17 Bea. 74,78. 
 
 registered deed, Benham v. Keane, 1 J. (n) Ante, p. 416 (b-f). 
 
 & H. 685; Tunstall v. Trappes, 3 Sim. (o) Ante p. 416, (g). 
 
 301; Doe v. Allsopp, 5 B. & A. 142. (p) Ante, 413 (fc)-414 (d), modified 
 
 (r) Crofts v. Wilkinson, 4 Q B. 74. below in this Chapter; Last three 
 
 (rf) 3-4 Vic, c. 82 (E ), s. 2; 18-19 authorities cited above n. (6). 
 
 Vic, c 15 (E.), s. 4. (?) So in most of the cases cited. 
 
 (e) 19-20 Vic, c 97, 8. 1. (r) Talbot v. Gulmartin. 3 Ir. Jur. 
 
 (/; Ante, p. 389 (J). 171. 
 
 (9) Collinson v. Lister, 20 Bea. 356; (s) 2 W. T. L. C. 64. 
 
 Fisher on Mortgages, (2nd Ed), 624 (O Ante, p. 38 (<), and see addenda. 
 
 (*, f, «, x, b), 625 (e), 626 (/) ; Lewin («) Fish. Mor. 623 (r) ; 624 («,6) ; 625 
 
 Tr. 354(a)-359, Ch XVII, s. 2, par. (c, <l, f,g,h); 626 («)• 
 
 23 (at end of p. 353)-25. («) Fish Mor. 626 (m), modified ib. 
 
 (h)Cuming v. Brown, 9 Ea. 106. (»*). 
 
 (i) Vertut v. Jeuxli, 4 Camp 31. 
 
 53
 
 418 NOTICE DISENTITLING A PURCHASER TO PRIORITY. 
 
 making of the notified disposition (a), and whose mortgage 
 was expressed to cover further Advances (a) ; and though 
 the intermediate disponee knew that the mortgage was so 
 expressed (b), and took his disposition "subject to" it (c), 
 and would by a trade-usage have been entitled to priority 
 (d) ; and though (in case of a chose in action (e) the party who 
 claims priority is himself the debtor (/); and though the 
 (Time of notice commenced after Possession had been taken ( g), and 
 
 the formal Conveyance made (h), and the consideration 
 secured (i), or part paid and part secured (_/'), or even wholly 
 paid by cheque (k) (i), and the purchaser cannot escape by 
 paying the balance of the price to the claimant (/); and 
 though the Notice commenced after all the consideration 
 had been paid (m), if before the formal conveyance (») (n); 
 
 (i) In the case first cited (o) the purchaser stopped the cheque, and then 
 removed the stop, and afterwards received notice, and after that the Cheque 
 was cashed. The neat point, therefore, did not occur; hut it is difficult to see 
 how the stop could make any difference, seeing it was removed before Notice. 
 
 (n) A disposition capable of Registration is considered formally complete 
 before registration (p), but a disposition from a Married Woman to which ac- 
 knowledgment is necessary (y) is not considered complete before the certificate 
 of acknowledgment has been filed (r). Neglect to enquire after Deeds &c. 
 does not seem to postpone, unless continued to the time when the conveyance 
 is made («). 
 
 (a) Hopkinson v. Rolt, 9 H. L. C. 5 14; (k) Iddesley v. Lodge, 3 Sm. & G. 543; 
 
 Shaw v. Neale, 6 H. L. C. 581. Molony v. Kernan, 2 Dr. & War. 40. 
 
 (6) H. v. R.; Sug. V. P., 739 (nj. (I) Molony v. Kernan, 2 Dr. & War. 
 
 (c) M emits v. Lightjoot, L, R. 1 1 Eq. 41. 
 
 459. (m) Davies v. Thomas, 2 Y. & C. 234; 
 
 (rf) M. v. L.; Daun v. City of London Wiyg v. Wigg, I Atk. 384; Mumfordv. 
 
 Bk. Co , L. R. 8 Eq 155. " Stohwasser, L. R. 18 Eq. 556; Maxwell 
 
 (e) See below, end of Ch. L. v. Burton, L. R. 17 Eq. 18; admitted 
 
 (f) Jones v. Farrell, 1 D. G. J. 208. Shropshire <$c Co. v Queen, L. R. 7 H. 
 \g) Hardingham v. Nicholb, 3 Atk. L. 505 / 4-6- 
 
 304. (a) See Att-Gen v. Gower, 2 Eq. Ab. 
 
 (h) H. v. N.; Story v. Windsor, 2 685; IT. v. W. 
 
 Atk. 630; (but the case in 2 Atk. 397 (o) Iddeshy v. Lodge. 
 
 is inapplicable); Jones v. Stanley, 2 Eq. (p) Elsey v. Lutyens, (Land in Mid- 
 
 Ab. 685; Tourville v. Naish, (in which, dlesex), 8 Hare 152; and see Essex v. 
 
 however, it is not expressly stated that Baugh, (same), I Y. C. Ch. 620; Dodds 
 
 the Conveyance had been made), 3 P. v. Hills, (Shares in a Company), 2 H. & 
 
 W. 306; More v. Mayhow, 1 Ch. Ca. 34. M. 424. 
 
 For the distinction between "disposi- (g) Ante, p. 140. 
 
 tion" and "contract" see above p. 75. (r) Sharpe v. Foy, L. R. 4 Ch. 40-1. 
 
 (i) H. v. S. (s) See Espxn v. Pembtrton, 3 D. G. 
 
 O) T. v. N. J. 550.
 
 NOTICE DISENTITLING A PURCHASER TO PRIORITY. 419 
 
 and though, (when the transferee of the legal estate 
 acquired it with notice that the transferor was not entitled 
 to make the transfer) the notice commenced immediately 
 before the transfer (a) (i); and though the notice was 
 received in a different capacity from that in which the 
 legal estate &c, is relied on (b), at least if the notice was 
 actual (c) ; and though the person affected by it was under 
 a disability (as Infancy (d)), at least if he was affected 
 through a competent agent (e); and though the purchase 
 was made through the Court (/). 
 
 But Notice is only efficacious if it exist either before the Conditions of 
 formal conveyance is made (g) (n), or before the whole the Rule * 
 consideration is paid (h), (except in the case already (i) 
 referred to respecting the acquisition of the legal estate 
 from one not entitled to transfer it); and only if (when 
 the legal estate is got in from a trustee) the notice extends to 
 the fact that the vendor &c. is not the person beneficially 
 entitled (/); and only if (when the notified claim is a 
 claim to set aside a disposition as having been made under 
 a power but for an unwarranted purpose (k), or, probably 
 (I), when it depends on any facts difficult to ascertain, or 
 
 (l) A formal conveyance must be distinguished from the transfer of the 
 legal estate. When the disponor has the legal estate both are generally effected 
 together, but when he is not a long interval may elapse between them. 
 
 (n) When the protected interest is a charge acquired by a charging order on 
 Stock pursuant to a judgment («■) the making of it absolute corresponds to the 
 Formal disposition (n), but this distinction is immaterial, because it has now 
 been determined (») that a judgment-Creditor can take no more than his debtor 
 might have applied to the payment of the debt, and therefore cannot displace 
 the protected interest, even though he have no notice of it. 
 
 {a) Ante, p. 401. 769; Wilier v. Bodixgtou, 2 Vera. 599- 
 
 (6) Collinson v. Lister, 20 Bea. 369. 600. 
 
 (r) As in C v. L. For definition of (*) Mc Queen v. Farqhar, 1 1 Vez. 
 
 "Actual Notice" see ante, p. 416" 492; see Farwell on Powers 347, 350; 
 
 (rf) Toulmin v. Steere, 3 Mer. 222-3. see Sug. Tow. (8th Ed ), 616 /. 17, sqq. 
 
 («) T. v. S. (which shews that the Legal estate is 
 
 (f) T. v. S.- qualified Sug.V. P. 1 1 1. as necessary in this as in other cases). 
 
 (<;) Meynellv. Garraway, Nels C. R. (1) See below, Ch. LII, where I cite 
 
 63; ante. p. 390 (d), 391 (a), 407 (». McQ v. F. 
 
 (A) Ante, p. 418 (o). ("') Under the 1-2 Vic, c. 110, s. 14. 
 
 (i) Ante, p. 401 (d)-402 (A). (») Warburton v. Hill, Kay. 470. 
 
 {/') WilUmghby v. Willoughby, t T. R. (o) See ante, p 399 ($r) -400(a).
 
 420 NOTICE DISENTITLING A PURCHASER TO PRIORITY. 
 
 Exceptions. 
 
 (Doubtful 
 
 Equity). 
 
 when the protected disposition has been registered under a 
 relevant statute (a),) the notice was Actual (b) (in either 
 the disponee or his agent (c))', and only if the interest 
 for which priority is sought was acquired by a dealing as 
 distinguished from a transmission (for then only is there 
 any fraud); and therefore not if it was a Judgment (d) (i). 
 
 And notice of a claim depending on an ambiguous 
 document seems ineffectual (e) unless the construction of 
 
 (i) That is, a Judgment-Creditor is entitled to the same priority against 
 interests of which he has as against those of which he has not notice. But the 
 only interest oyer which he can, in either case, gain priority by means of the 
 Legal estate, is another Judgment-Lien on a heneficial interest. For he can- 
 not, even in the ahsence of notice, gain priority over an earlier interest »'« the 
 property, (though it be unaccompanied by a legal estate, and merely accrue by 
 a transmission), because he cannot take more than the Debtor might have ap- 
 plied to payment of the debt (f); nor over an earlier judgment-lien (g) re- 
 covered against one who had the legal estate, because such a lien is legal. And 
 even judgments against one for whom the legal estate is held on a simple (A) 
 trust are legal liens on the trustee's estate from the time of suing out execution 
 (i), unless it be a chattel interest (j). A judgment (t) entered up in England 
 hefore the 29 July 1864 affects tenements in the Register Counties (/) or else- 
 where (m) from the entering up but not against purchasers of tenements in a 
 Register County until registration there (»). A judgment entered up in England 
 after that day binds hereditaments from the delivery in execution (o), but not as 
 against purchasers of tenements in a Register County until registration there 
 (p). A Judgment entered up in Ireland before the 1st August 1849 and a judg- 
 ment for over £150 entered up there between that day and the 15th July 1850 
 binds hereditaments there which the debtor had acquired before the latter day 
 from entering up (g). A judgment for not exceeding £150 entered there 
 between those days binds such hereditaments from the delivery of the writ to 
 the Sheriff (r). And a judgment entered there before the 15th July 1850 binds 
 hereditaments there which the debtor acquired since that day — (while a judg- 
 ment entered there since that day affects other hereditaments there) — from the 
 registration of the prescribed Affidavit in the Registry of deeds (*). But in all 
 these cases (<) (except the last) a judgment is still, (as against a disponee for 
 value without notice of it,) a mere lien. 
 
 (a) Ante, p. 407 (d, e, g). 
 (6) Defined, ante, p. 416. 
 (r) Ante, p. 413 (;'). Below Ch. 
 LIII. [318. 
 
 (d) Benham v. Keane, 3 D. G. F. J. 
 
 (e) Sd. Cordwell v. Mackrill, 2 Eden. 
 347; Senhousew. EarU, Amb. 281. But 
 Steedmanv. Price, 9 Hare 193 seems 
 contra. 
 
 (f) Ante, p. 399 (g)-400 («). [318. 
 
 (g) Benham v. Keane, 3 D. G. F. J. 
 (A) Lewin Tr. 568 (e,f\ 
 
 (i) 29 Ch. II, c. 3 (E.). s. 10; 7 Wm. 
 Ill, c. 12 (Ir.), s. 7; Higgitu v. York 
 Bg. Co., 2 Atk. 107. 
 
 (j) Lewin Tr. 568 (d). 
 
 (i) See ante, p. 334-5. 
 
 (/) Tunstallv. Trappes, (Gosling'i Case, 
 2d point,) 3 Sim. 301. 
 
 (m) 1-2 Vic,c. 110, s. 13. 
 
 (n) Westbrook r. Blyth, 3 E. & B. 757, 
 modified in T. v. T. 
 
 (o) 27-8 Vic, c. 112, s. 1. 
 
 ( p) 27-8 Via, c. 1 12, s. 1 , interpreted 
 in Westbrook v. Blyth. 
 
 (q) 3-4 Vic, c. 105,8. 22. 
 
 (r) 12-13 Vic, c. 95. 
 
 (*) 13-14 Vic, c 29, s. 6,7. 
 
 (t) 2-3 Vic, ell, s. 5, interpreted 
 in W. v. B.
 
 NOTICE DISENTITLING A PURCHASER TO PRIORITY. 421 
 
 the document has been established by decision (a) or its 
 words are such as an unprofessional person would under- 
 stand to confer an adverse right (b); nor can notice of 
 circumstances from which a right flows preserve the 
 priority of that right when the claimant has long acqui- 
 esced in an action by which the property was (on the 
 ground that he had no such right) recovered from him (c); 
 nor as we have (d) seen can notice of a judgment prevent 
 its postponement (d) unless registered and re-registered; 
 nor could notice of a right to be endowed out of the bene- 
 ficial interest in a term attendant (e), (the only instance in 
 which a widow could be endowed out of a mere beneficial 
 interest), prevent its postponement (/); nor can notice of 
 a right depending on a condition incapable of being fulfilled 
 without the purchaser's consent prevent its postponement 
 (g) ; and notice acquired in the discharge of Parliamentary 
 duties is not effectual (h); and notice does not deprive a 
 disponee of such priority as his disponor had (i) unless the 
 disponee himself had previously held the property subject to 
 the notified claim and had disposed of it fraudulently (_/') or in 
 breach of trust (J) ; nor does notice prevent the acquisition 
 of priority on a ground (k) paramount to that of certainty, 
 — as, that the postponed disposition was fraudulent (I); 
 nor does notice in one transaction deprive a party of 
 priority in another long afterwards (m). 
 
 (a) Seuhouse v. Earle, Arab. 281. 445; Harrison v. Forth, Pre. Ch. 51'; 
 Thompson v. Simpson, 1 Dr. & War. 491. Lewin Tr. 617 {g); 2 W. T. L. C. 49. 
 
 (b) Davits v. Davies, 4 Bea. 54. And see L. R. 11 C. D. 331 / 22-30; 
 
 (c) Hardy v. Reeves, 5 Vez. 426. modified, Freerev. Hope, 1 D. G. M.G. 
 
 (d) Ante, p. 417 (<*)• 495; So as to Bills of Exchange, Mas- 
 («) Defined ante, p. 403 d). ters v. Ibberson, 8 C. B. 100. 
 
 (f) Radnor v. Vanderbendy, Show. P. (j) Admitted Barrow's Case, p. 432. 
 
 C. 69, commented on in 10 Vez. 271, (*) See the later Chapters of this 
 
 and in Butler's n. (i) to Co. Litt, 208a. work. 
 
 {g) Luffkin v. Sunn, 11 Vez. 170; (/) Gardiner v. Painter, Macn. Sel. 
 
 See Sug. V. P. 750 (*, I). ca. in Ch. 182; Sug. V. P. 714 (<)• 
 
 (A) East Grinstead Case, Duke on ( m ) Hamilton v. Royse, 2 S. & L. 315; 
 
 Charitable Uses, 639. and see 2 Hare 249. 
 
 (i) Barrow's Case, L. R. 14 C. D.
 
 422 NOTICE DISENTITLING A PURCHASER TO PRIORITY. 
 
 Notice pre- 
 vented by 
 counter- 
 evidence. 
 
 Security on 
 contract of 
 I'rireliase. 
 
 And we shall see (a) that evidence that the notified 
 interest does not exist may neutralize circumstances by 
 which a disponee would otherwise be affected with notice. 
 
 And a seeming extension of the doctrine has already (b) 
 been noticed. 
 
 (a) See below Oh. LII. 
 
 (6) Ante, p. 402 (n).
 
 ( 423 ) 
 
 CHAPTER L. 
 
 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE OR 
 ITS EQUIVALENT. 
 
 We have here to define the Formalities (i) by which the 
 legal estate can be transferred (a), and the Circumstances 
 under which a party has the best right to call for it (a) ; to 
 allude to the Mode of registering (b) deeds &c. in Ireland, 
 Yorkshire, and Middlesex, and to consider the Circum- 
 stances under which a disponee of a chose in action is 
 entitled to the same priority as if he had the legal estate 
 (a). The subjects of property to which the last-men- 
 tioned circumstances are applicable have been already (c) 
 considered. 
 
 The Legal estate in a Tenement can be transferred 
 testamentarily by Will (d) or Codicil (e), signed (/) and 
 attested (g) as already described, except that when the 
 tenement was Copyhold, and the death occurred before 12 
 July 1 815 (h), a surrender to the use of the will must have 
 preceded (*'). And it can be transferred non-testamentarily 
 by a Deed (11), except when the tenement is Copyhold, in 
 
 Contents of 
 tliis chapter. 
 
 Formalities for 
 acquiring the 
 Legal estate. 
 IrrespectiveJy 
 of a Power. 
 In a Tenement. 
 
 (I) Signature by the holder of the legal estate with an imaginary name is as 
 effectual to transfer that estate as signature with his real name, if it was in the 
 imaginary name that he acquired it (j). 
 
 (II) Alike as regards present interests in corporeal tenements since 1 Oct. 
 1845 (i), (and, in some cases (/), before that day); Remainders and reversions 
 in such tenements (m) ; Incorporeal tenements (n) ; Contingent and other future 
 
 (a) For the use of these see ante, Ch. 
 XLVII. 
 
 (6) For the use of this see ante, Ch. 
 XLVIII. [(c, /). 
 
 (c) Ante, p. 393 (c, d), (i, II); 398 
 
 (d) 7 Wm. IV- 1 Vic , c. 26, s. 3, in- 
 terpreted in Garland v. Mead, L. R. 6 
 Q. B. 441, and extending 55 Geo. Ill, 
 c. 192, s. 1. 
 
 («) 7 Wm. IV- 1 Vic, c. 26, s. 1. 
 {f) Ante, p. 182 (i). 
 
 (</) Ante, p. 184 (g). 
 
 (h) 55 Geo. Ill, c. 192, s. 1. 
 
 (i) 6 Cruise's Digest, 35. 
 
 (j) Gabarrowx. Kreeft, L. R. 10 Ex. 
 274. 
 
 (*) 8-9 Vic, c. 106, s. 2. 
 
 (/) Co. Litt, 274a (release by mitter 
 I. droit), 273b (release by m- Vestal), 
 275b (confirmation). 
 
 (m) Co. Litt, 312a. 
 
 (n) Co. Litt., 172a, 3 1 2a.
 
 424 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 
 
 which case a grant entered on the court rolls is necessary 
 (a) and sufficient {b) when the lord is granting it under 
 a custom (c) to a new tenant, and a surrender to the lord to 
 the use of the transferee is necessary (d) and sufficient (e) (i) 
 when one Copyholder is transferring to another; and except 
 when an Infant is transferring under a custom (in which 
 case livery of seisin (/) is necessary (g) and sufficient (g)). 
 But a deed is necessary to a transfer whether the latter be by 
 way of grant {h), feoffment (i), release (/), exchange (/), 
 partition (/), assignment (/), surrender (/), or lease (/); 
 except in the cases above (k) excepted, and except when 
 the transfer is a Surrender by operation of law (/), a Sur- 
 render of an interest which might have been created 
 without writing (/), a short Lease made under certain 
 circumstances {in), or the Assent of an Executor &c. to a 
 bequest (»), and except when the transfer is made under 
 the Land-Transfer (o) or the Record of Title, act (/>), in 
 which case the formalities prescribed by these acts suffice. 
 The legal estate in a rent charge under the Improvement 
 
 interests in either since 1 Oct. 1845 (</) (these having been previously trans- 
 ferable by fine or recovery (r) or by indenture with false recitals (*)); and 
 Rights since that day {q)\ and this though the property has been registered under 
 the Record of Title (<) or Land-transfer Acts («). 
 
 (1) But not against the claims of the lord (v), unless followed by admit- 
 tance. 
 
 (a) Voev. Wltittaker, 5 B. & Ad. 409. 0') Co. Litt., 265a. 
 (6) Roe v. Loveless, 2 B. & A. 453. (*) Ante, (a, d, g). 
 
 (c) Necessary Roe v. Newman, 2 Wils. (/) 8-9 Vic, c. 106, s. 3, combined 
 125; King v. Hornchurch, 2 B. & Ad. witli 29 Cha. JI, c. 3, s. 3. For de- 
 189. finition see ante, p. 180 (I). 
 
 (d) Doe v. Webber, 3 Bing. N. R. (m) 8-9 Vic, c. 106, s. 3, 29 Cha. 
 922; Doe v. Crisp, 1 P. & I). 37 ; Love- II, c 3, s. 2. 
 
 day v. Winter, 12 Mod. 147, 5 Mod. 245. (») Ante, p. 75 (-). 
 
 (e) Horlock v. Piiestly, 2 Sim 75. (o) 25-6 Vic, c. 53, s. 63-4; 38-9 
 
 (f) Described ante, p. 77-8. Vic, c 87, s. 49. 
 
 ig) 2 Davidson's Conveyancing (3d. (j>) 28-9 Vic, c 88, s. 26. 
 
 Ed.), 221 ; ante, p. 1 18 (6); 8-9 Vic, c (q) 8-9 Vic, c 106, s. 6. 
 
 106, s. 3. (r) 2 Cru. Di 333; 6 Cr. Di. 425. 
 
 (ft) 8-9 Vic, c. 106, (present inter- (s) Ante, p. 81 (a). 
 
 ests), s. 2; Co. Litt., (future interests) (<) 28-9 Vic, c 88, s. 26. 
 
 312a; Co. Litt. (incorporeal tenements) («) 25-6 Vic, c 53, s. 63; 38-9 Vic, 
 172a, 312a c. 87, s. 49. 
 
 (i) s. 3. (v) Doe v. Wroot, 5 Ea. 132.
 
 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 425 
 
 of Land Act is to be transferred by Deed notified to the 
 Commissioners (a). 
 
 The legal estate in an Annuity can be transferred testa- In an Annuity. 
 mentarily by Will or codicil (b), and nontestamentarily by 
 Deed (c). 
 
 The legal estate in any other Chose in action (d) cannot In a Chose in 
 be transferred testamentarily (e), even when the transfer 
 is supplemented by the executor's assent (e). 
 
 The legal estate in a Bill (/) or Draft (g) of Exchange, a 
 Cheque (h) (unless crossed "not negotiable" («')), a Prom- 
 issory Note (j), or a Debenture (k), can be nontesta- 
 mentarily transferred by delivery if it be payable to bearer 
 (/); and by signature on the back (;«) or face (») and 
 subsequent delivery (o) if it be payable to order (p); but 
 cannot be transferred otherwise (q). 
 
 The Legal estate in a Marketable security is generally 
 transferable in the mode usual in the stock-market; — that 
 in Government (r) or Colonial-stock (5) except while a 
 stock certificate to bearer is outstanding (t), certain East 
 India stock (u) or annuities, Funds in Court (v), and Irish 
 Land Debentures (w), by entry in the appropriate books, 
 and that in other forms of East India Stock by Deed or 
 Delivery (x). 
 
 (a) 27-8 Vic, c. 1 14, s. 65. (m) Geary v. Physic, 5 B. & C. 234. 
 
 (b) Aubin v. Daly, 4 B. & A. 60. (n) Young v. Glover, 3 Jur. N. S. 637. 
 
 (c) Ortigoia v. Brown, 38 L. T. 145; (0) Cox v. Troy, 5 B.& A. 474; Chap- 
 Arden v. Goodacre, 11 C. B. 883; Baker man v. Cotterell, 3 L. J. Ex. 186. 
 
 v. Brooke, Moore 5. (p) Authorities cited above in this 
 
 (d) Defined ante, p. 55, 58. page (J-j)\ Byles, 83. 
 
 (e) Bishop v. Curtis, 18 Q. B. 878. (?) Harrop v. Fisher, 10 C. B. N. S. 
 (/) Hubbard v. Jackson, 4 Bing. 390; 196. [50. 
 
 Heydon v. Thompson, 1 A. & E. 210. (r) 33-4 Vic, C 71, S. 22; see s. 22- 
 
 (g) Banco d. Lima v. Anglo- Peruvian (s) 40-1 Vic, c 59, s. 4 (1). For 
 
 Bk., L. R. 8 C. D. 170. definition of Colonial Stock sees.26 (3). 
 
 (A) Byles on Bills (11th Ed.J, 27; (0 33-4 Vic, c 71, s. 31; 40-1 Vic, 
 
 Keene v. Beard, 8 C. B. N. S. 372. C 59, s. 7 (3), s. 10, 11. 
 
 (») 39-40 Vic, 0. 81. <") 40-1 Vic, c 51, s. 9; 23-4 Vic, 
 
 (j) 3-4 Ann., c 8 (E.), (Ruff. c. 9); c 102; 24-5 Vic, c 3; 25-6 Vic, c.7; 
 
 9 Geo. IV, c 24 (I.) 26-7 Vic, c 73. 
 
 (i) Ex. Colborne v. Strausbridge, L. R. (v) Thorndikt v. Hunt, 3 D. G. J. 563. 
 
 11 Ec 478; see also 40-1 Vic, c 59, (w) 28-9 Vic, c 101, s. 7, 13. 
 
 t. 7. (*) Statutes in the Government Index 
 
 (0 Bylw, 147 (i); Ex. C. r. S. (4th Ed.), 570, 571. 
 
 54
 
 426 FORMALITIBS FOR ACQUIRING THE LEGAL ESTATE, &C. 
 
 The Legal estate in Stock or shares of a Company is 
 transferable in various ways according to the constitution 
 of the Company (<*); but usually by Deed or writing 
 whether the Company be governed by the Companies' 
 Acts (b), or by the Companies' Clauses Acts (c) ; and such 
 deed (d) or writing (e) is, as to priorities (d) (i) but not 
 as against the Company (/), effectual without being 
 registered; while on the other hand registration without 
 transfer is void (/). But a Bankruptcy-trustee does not 
 acquire the legal estate in stock &c. transferable by Deed 
 until he has registered (g). 
 
 The Legal estate in Scrip in a foreign government (h) or 
 a Company (i), Exchequer bills or bonds (/'), and the like 
 (j), East India debentures (k), and Government (I) or 
 Colonial (m) stock-certificates to bearer, passes by delivery. 
 
 The Legal estate in certain Copyrights («) and Patent- 
 rights (o) seems to be transferable by entry on the appro- 
 priate register (n), 
 
 The Legal estate in a Drainage certificate seems to be 
 transferable by indorsement (p). 
 
 (i) The same principle applies to Copyholds (g). Authorities on the Regis- 
 tration of Shares (r), and on the value of signature by the transferee (*), and of 
 transfers in blank (*), are cited below. 
 
 (n) An assignee of a Copyright cannot («) , but an assignee of a Patent-right 
 may (t>), maintain an action for infringement before his assignment is registered. 
 
 (a) See (for a pretty full statement) (Jfc) Under the 40-1 Vic, c. 51, 8. 5. 
 2 Lindley on Partnership (4th Ed.), (I) 33-4 Vic, c. 71, s. 32. 
 
 703-4. (m) 40-1 Vic, c 59, s. 7. 
 
 (b) 25-6 Vic, o. 89, s. 22, 24, 31. («) 5-6 Vic, o. 45, s. 13, modified by 
 
 (c) 8-9 Vic, o. 16. s. 14, 15. b. 14, 22; 7 Vic, c 12, b. 8, 9; and see 
 
 (d) Donaldson?. Gi/fof,L.R.2Eq. 274. 15-16 Vic, c 12. 
 
 («) Exp. Sargent, L. R. 17 Eq. 275. (o) 15-16 Vic , c 83, s. 35. 
 
 (/) D. y. G.; See Cottam v. Eastern (p) 10-11 Vic, c 11, s. 9. 
 
 Cos. R. Co., 1 J. & H. 243; Johnson v. (y) Ante, p. 424 (e). 
 
 Renton, L. R. 9 Eq. 181; Davis v. Bk. (r) Searh v. Law, 15 Sim. 95. 
 
 England, 3 Bing. 393. (*.) Foster?. Bk. England, 8 Q. B. 689. 
 
 {g) Ex. London $c. Co., L. R. 9 Eq. (<) Swan v. Nth British Sfc. Co., 2 H. 
 
 653. & C. 195, (observed on in L. R. 1 1 Eq. 
 
 (A) Goodwin v. Robarts, L. R. 1 Ap. 319, and in Lindley 706) ; Ex. Sargent, 
 
 476. L. R. 17 Eq. 273. 
 
 (t) Rumball v. Metropolitan Bk., L. («) Hassall v. Wright, L. R. 10 Eq. 
 
 R. 2 Q. B. D. 194. 609. 
 
 (j) Sd. Heseltint y.Siggers, 1 Ex. 861 . («) 5-6 Vic, 0. 45, 8. 24.
 
 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 427 
 
 The Legal estate in any other Chose in action than those 
 above-mentioned cannot be transferred (even nontestamen- 
 tarily) so as to give priority over beneficial rights subsisting 
 at the time of the transfer (a), unless the transfer amount to 
 a Novation (b), or the rights in question be counter-claims 
 which have arisen since notice of the transfer was given to 
 the party liable (c), and the transfer be made by absolute 
 assignment in writing (not by way of charge only (d)), 
 with express notice in writing to the party liable (d). 
 There is an earlier enactment as to Life-policies, under 
 which priority is regulated by the date of the notice 
 (e), but which, in other respects, seems covered by that 
 just stated, unless the former, which mentions "assignment 
 or other derivative title," is to be construed as extending 
 to cases in which the assignment is not absolute or is but 
 a Charge (i), in which case the right to give a discharge 
 for the money must have subsisted in the assignor at the 
 time of the assignment (/) and the notice must have been 
 served at a principal place of business of the Company (e). 
 
 The Legal estate in a registered British Ship can be In a Corporeal 
 transferred by Deed (g), which is not effectual as to ckutel. 
 priorities until it is registered (h). 
 
 The Legal estate in a Cargo or part thereof, whether on 
 board ship (*) or warehoused after landing (j) at a suffrance 
 
 (i) It does not extend to a promise to assign (i). 
 
 (a) Before the Judicature Act, Man- (f) s. 1. 
 
 glesv. Dixon, 3 H. L. 702. Since that (g) 17-18 Vic, c. 104, s. 55, 66; 
 
 act, Young v. Kitchin, L. R. 3 Ex. 127. Stapleton v. Haymen, 2 H. & C. 918; 
 
 As to what rights are deemed (in this Hubbardy. Johnstone, 3 Tau 177; Spirit 
 
 sense) to exist at the time of the trans- of the Ocean, 34 L. J. Ad. 74. 
 
 fer, see Brice v. Bannister, L. II. 3 Q. B. (A) s. 57, 66, 71, 73, 43. 
 
 D. 569. (0 Nathan y. Giles, 5 Tau. 558. 
 
 (b) Accordingly, 5 A. & E. 115-16. (j) Barber v. Meyerstein, (a leading 
 For definition of Novation, see ante, p. case), L. R. 4 H. L. 317; sd. Imperial 
 154 /. i. Bk. v. London $c. D. Co., 27 L. T. 
 
 (c) Brice v. Bannister, L. R. 3 Q. B. 234h, /. 17-18. 
 
 D. 569; ante, p. 154 (e) (/). (fc) Spe7icer v. Clarice, L. R. 9 C. D. 
 
 (d) 36-7 Vic, c.66 (E.), s. 4 (6); 40- 137. But see (especially as to the cor- 
 1 Vic, c. 57 (I.), s. 28 (6). See also responding point under the 36-7 Vic), 
 Leigh v. Leigh, 1 B. & P. 447. Brice v. Bannister, L. R. 3 Q. B. D. 
 
 («) 30-1 Vic, c 144, s. 3. 574-5.
 
 428 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 
 
 wharf (a), can be transferred testamentarily by Will (b) or 
 codicil (b) (supplemented by the executor's assent (&)), or 
 (no doubt) by Donatio mortis causa (c); and nontesta- 
 ' mentarily either by Delivery of the goods (d) (i), by (at 
 least in case of goods landed) Attornment (c), or by 
 Indorsement and Delivery of the bill of Lading (/) (at 
 least if drawn to "order or assigns" (g))', but not by giving 
 out a delivery-order nor by acceptance thereof from the 
 holder, (for a delivery-order merely transfers the right to 
 call for the legal estate conditionally on there being no 
 stop on, and having been no delivery &c. of, the goods 
 when it is presented (h)) ; and not by giving a Wharfinger's 
 certificate (i). When delivery of the Bill of Lading is the 
 means selected, the goods will, when such an intention is 
 shown by the circumstances, pass (to an indorsee for value 
 of the bill) as from the time when it is posted to him (/), 
 but subject to any condition which the transferor may 
 have imposed, though not indicated on the bill, (as, that 
 the transferee shall accept an accompanying bill of 
 exchange (&)). But a purchaser for value under an 
 indorsement and delivery of the bill of lading is entitled to 
 priority over an interest derived by a mere delivery of the 
 goods, unless he was aware of it (/). 
 The Legal estate in any other Corporeal Personal Chattel 
 
 (i) Delivery of goods can bo made even while they are in the custody of the 
 Sheriff (wi). 
 
 (a) Barber v. Meyerstein, (a leading of Lading drawn in parts see 4 H. L. 
 case), L. R. 4 H. L. 317; sd. Imperial 325, and Gilbert v. Guignan, L. R. 8 Ch. 
 Bk. v. London $c. D. Co., 27 L. T. 234b, 16. 
 
 /. 17-16. (g) Rodger v. C. d'E. d. Paris, L. R. 
 
 (b) See 7 Wm. IV- 1 Vic, c. 26, s. 3. 2 P. C. 253, 
 
 (c) See ante, p. 126; below p. 429 (6). (h) Imperial Bk. v. London tfc. D. Co. 
 
 (d) Nathan v. Giles, 5 Tau. 558. 27 L. T. 234b /. 19-22, 235a, /. 40-42. 
 
 (e) Imperial Bank v. London 8fc. D. (i) Gunn v. Bolckow, L. R. 10 Ch. 
 Co., 27 L. T. 235a, 235b {fin.), 235a J. 49. 
 
 1-5, 50-60; and see Young v. Lambert, (j) Banco d. Lima v. Anglo- Peruvian 
 
 L. R. 3 P. C. 142. Bk., L. R. 8 C. D. 170. 
 
 (f) Haille v. Smith, 1 B. & P. 564; (*) See L. R. 8 C. D. 170-1. 
 Coventry v. Gladstone, L. R. 4 Eq. 493; (/) Sd. Nathan v. Giles, 5 Tau. 558. 
 Barber v. Meyerstein, L. R. 4 H. L. 317, (m) See Union Bk. v. Lenanton, 38 L. 
 Shepherd v. Harris, L. R. 5 H. L. 116; T. 701. 
 
 sd. 26 L. T. 234b I. 17-19. As to Bills
 
 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 429 
 
 can be transferred testamentarily by Will or codicil with 
 the executor's assent (a); or by delivery when the donor 
 believes himself to be in a dying state (b) ; and nontesta- 
 mentarily by word of mouth or otherwise (c), with such (if 
 any) formalities as are applicable for evidencing the 
 transaction (d), if the disposition be for value (d); but, if 
 it be gratuitous, only by Deed (<?), or by Delivery of 
 the possession (/) or of something giving control over 
 it (g), or by an Attornment from some third person 
 who holds (h) it, or by a Change in the conduct of the 
 parties shewing that the ownership has been changed (i) (in 
 which last case it is not clear but that a continuance in 
 possession as owner may be necessary on the donee's part 
 if he already had the possession as Agent for the owner 
 (/)). Documents by which a chose in action is secured are 
 deemed chattels corporeal within this rule, (for example, 
 a Policy of Insurance (k), or a Railway Company's 
 Debenture (/);) but, of course, delivery &c. of them does not 
 pass the legal estate in the money secured by them. It 
 seems that a document of Title to a tenement is also a 
 corporeal personal chattel within this rule (in). 
 
 The foregoing part of this chapter does not refer to Formalities for 
 dispositions under Powers. These formerly required such Leealesfateb 
 formalities (w), and such only (n), as were prescribed by a disposition 
 the power; and now may, if nontestamentary, be made Power. ' 
 
 (a) 7 Wm, IY-1 Vic, c. 26, s. 3. 
 
 (6) Hills v. Hills, 8 M. & W. 401; 
 ante, p. 126. 
 
 (e) Gilmour v. Supple (sale), 1 1 Moo. 
 P. C. 551 ; sd. Reevesv. Capper (pledge), 
 5 Bing. N. C. 56. 
 
 (d) For these eee ante, 180(a-/), 
 180 (j)-184 (/). 
 
 (e) Sd. 2 Sand. 47a, n. (d). 
 
 (f) Rummens v. Hars, L. R. 1 Ex. D. 
 169; sd. Bourne v. Fosbroolce, 18 C. B. 
 N. S. 524 /. 28, 2 Sand. 47a (d). I do 
 not refer to Reeves v. Capper, because 
 (notwithstanding the marginal note) 
 it was the case of a Pledge. 
 
 (g) Smith v. Smith, 2 Stra. 975, qual- 
 
 ified by Trimmer v. Danby, L. J. 25 Ch. 
 424. 
 
 (h) Douglas t. Watson, 17 C. B. 696. 
 
 (») Sd. Winter v. Winter, 4 L. J. N. 
 S. 639, disapproving Shar (or Shower) 
 v. Pilch (or Pilck), 4 Ex. 478. 
 
 („/') This occurred in Winter v. Win' 
 ter, but does not seem to have been 
 thought essential. 
 
 (i) Rummens v. Hare, L. R. 1 Ex. D. 
 169. 
 
 (0 Barton v. Gainer, 3 H. & N. 387. 
 
 (m) Cases cited mCopinger on Title 
 Deeds 4 (d). 
 
 (n) Sugden on Powers (8th Ed.), 206,
 
 430 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 
 
 Formalities for 
 
 Disclaiming 
 the Legal 
 estate. 
 
 Circumstances 
 constituting 
 the Best Right 
 to Call for the 
 Legal estate. 
 
 either as above (a), or by Deed with two witnesses (a) ; but 
 must, if testamentary, be made in the same way (b) as 
 other testamentary dispositions (c). 
 
 The Legal estate may be Disclaimed by Deed (d) ; and, 
 according to modern authorities, even orally (e), or by 
 implication (e). The modern rule, no doubt, has been 
 introduced on account of the difficulty (on principle) of 
 compelling one into whom a legal estate has been passed 
 without his consent to execute a formal Deed of 
 Disclaimer, — but there would be nothing more unwar- 
 rantable in compelling him so to do than in compelling the 
 heir of a trustee to convey, and if the legal estate can be 
 disclaimed in any less formal manner than that in which 
 it can be conveyed titles will be less secure. Hence in 
 early times an informal disclaimer was considered void (/). 
 
 The Best right to Call (g) for the Legal estate is 
 conferred by an Agreement to transfer (h) it; or by a 
 Declaration of Trust (i) which the holder of that estate 
 has made (_/) when entitled to transfer it (&), or when 
 authorized by one who is (I), or whom he {tn) (or probably 
 even the person acquiring this right («),) believes to be, 
 entitled to direct such a transfer; especially if the holder 
 who makes this declaration is one to whom the legal estate 
 has just before been transferred at the request of the 
 person acquiring this right (o), even though that transfer 
 
 (a) 22-3 Vic, C. 35, s. 12. 
 (6) Stated ante, p. 179 (/-o), 182 (i), 
 184 (<?). 
 
 (c) 7 Wm. IV-1 Vic, c. 26, s. 10. 
 
 (d) Toxcnson v. Tickell, 3 B. & A. 31. 
 
 (e) Re Gordon, Roberts v. Gordon, L. 
 R. 6 C. D. 531. 
 
 (f) Butler fy Baker's Case, 3 Co. 26, 
 27. 
 
 (</) The effect of this on priorities is 
 explained above, Ch. XLVII, p. 388 
 sqq. 
 
 (h) Blake v. Hungerford, Pre. Ch. 
 158; Windham y. Richardson, 2 Ch. Ca. 
 213. 
 
 (i) Defined ante, p. 124 (b). 
 
 0') Sd. Wilmot v. Pike, 5 Hare 22; 
 sd. Rooper y. Harrison, 5 Hare 107; 
 Wilker v. Bodington, 2 Vern. 599. See 
 also Pomfret v. Windsor, 2 Vez. 486. 
 
 (it) As ia R. v. H. ; W. v. R. ; and B. 
 
 Y.H. 
 
 (/) Stanhope y. Verney, (in which 
 however there were other circumstances) 
 2 Eden. 81. 
 
 (m) As in the case supposed in 5 
 Hare 22. 
 
 (n) See ante, p. 394 (g), 401 (o). 
 
 (o) Blake v. Hungerford.
 
 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 431 
 
 had been made primarily for the transferee's own benefit 
 as mortgagee (a). But the best right to call for the legal 
 estate cannot be acquired by one who then knows that 
 another has a better right to do so (b) than he who purports 
 to confer it. In such a case the declaration &c. fails to 
 protect him against either the interest of that other or even 
 any interest which any third person may have in the 
 property (b), because though he is without notice he does 
 not purchase in good faith (b). Nor can such right be 
 acquired from one who fills an office to which the law has 
 annexed a trust inconsistent with the declaration (c), 
 though he has entered on behalf of the person for whom 
 he declares the trust (c), and though, in the document by 
 which he was appointed, a trust for that person was 
 ineffectually declared (c). Nor is this right conferred in 
 respect to shares by depositing a deed by which they had 
 been transferred to the depositor (d), at least if the 
 transfer had been made to him on an agreement that it 
 should not be registered (d), though the depositee had no 
 means of knowing of that agreement (d). And much less 
 is it conferred by mere notice to the trustee (e). And of 
 course it will not, as regards one incumbrance, be conferred 
 by a covenant (/) to hold on trust to protect another 
 incumbrance. But, by obtaining the deed under which 
 the trustee acquired the legal estate, a purchaser obtains 
 (g) (or did under the former practice (g) obtain) an 
 equivalent advantage, unless the rival owner could describe 
 the deed (h). 
 
 The mode of Registering Deeds in Ireland (i) Yorkshire ModeofRegis- 
 
 (n) Blake v. Hungerford, Pre. Ch. 1 58. (A) A nte, p. 38 1 (c). 
 
 (6) Willoughby v. Willoughby, 1 T. R. (i) 6 Ann. (Ir.), c. 2, s. 6, 7, 15; 8 
 
 774. As to bad faith see ante, p. 400 Ann. (Ir.), c. 10, s. 2-3; 8 Geo. I, c. 15, 
 
 (ft), s. 2, 3 ; 25 Geo. Ill, c. 47, s. 2 ; 2-3 Wm. 
 
 (c) Sd. Shaw v. Jones-Ford, L. R. 6 IV, c. 87, s. 29; 21-2 Vic, c. 105, 8. 1- 
 C. D. 12 /. 5, (rvd. on another point). 4; 27-8 Vic, c. 76, s. 1-6. 
 
 (d) Ortigosa v. Brown, 38 L. T. 145. As to taking Affidavits, 16-17 Vic, c 
 
 (e) Wilmot v. Pike, 5 Hare 22. 78, s. 6; 40-1 Vic, c 57, s. 74. 
 
 (f) Frere v. Moore, 8 Pri. 475. As to dispositions made in Great Bri- 
 
 (g) Sd. Maundrell v. Maundrell, 10 tain 8 Ann. (Ir.), c 10, s. 1 ; 3 Geo. IV, 
 Vez. 271, explained ex. Knott, 11 Vez. c. 116; 16-17 Vic, c. 78. 
 
 613. 
 
 tering Deeds.
 
 432 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 
 
 Circumstances 
 under which 
 the disponee of 
 a Chose in 
 action &c. is 
 entitled to 
 priority as if 
 he had the 
 Legal estate. 
 Generally. 
 
 What circum- 
 stances are 
 requisite. 
 
 (rt)and Middlesex (b) is so fully explained in the enactments 
 in the notes that I will not further enlarge upon it. 
 
 The circumstances under which the disponee of a chose 
 in action is, as already (c) stated, entitled to the same 
 priority as if he had the Legal estate, are those calculated 
 to enable a subsequent disponee to discover the disposition 
 attended by them (i), and, (as they were originally recog- 
 nized on the ground that he who neglects to ensure this 
 result acts unfairly towards subsequent purchasers), the 
 question whether a competitor whose disposition is at- 
 tended by them may take advantage of them when brought 
 about without effort on his part has been raised, but de- 
 cided (d) in the affirmative. Inquiry (from the holder of the 
 fund or otherwise) as to rival interests is not (e) one of 
 these circumstances; nor is the obtaining of Documents of 
 Title (/) (ii). 
 
 Knowledge (m) on the part of the person from whom an 
 
 (1) A case (g) which seems to me unconnected with this rule is sometimes (h) 
 referred to in discussions on it. The holder of shares in a Company signed a 
 declaration of trust of them and afterwards agreed to mortgage them to the Co., 
 and the beneficiary was held entitled to priority over the mortgagee, though 
 knowledge by the Company was the circumstance equivalent to the legal estate, 
 and though the Company was not aware of the declaration. But the reasons of 
 this were (i), that the shares had been purchased with trust-money, and never 
 belonged to the trustee, the title of the beneficiary being quite independent of 
 the declaration, and that the agreement was but a contract per verba defuturo. 
 
 (n) Yet they cannot be recovered back (j). 
 
 (m) The text-books (k) discuss as a single question the sufficiency of infor- 
 mation for the purpose here under consideration, and its sufficiency for that of 
 preventing the acquisition of priority by means of the legal estate &c. ; but no- 
 tice sufficient for the latter purpose is not necessarily sufficient for the former, 
 
 (a) West Riding, 2-3 Ann., c. 4, s. 7, 
 8, 12, 17, 18; 6 Ann., c. 20 (Ruff. 5 
 Ann., c. 18), s. 1, 3, 5, 9, 10; 6 Ann., 
 c. 62 (Ruff., c. 35), b. (in Ruff.) 2, 10- 
 
 13, 16-18, 20-2, 27, 31, 34. 
 
 East Riding, 6 Ann., c. 62, sections 
 above cited except s. 34. 
 North Riding, 8 Geo. II, c. 6, s. 2, 1 1- 
 
 14, 18-25, 36. 
 
 (6) 7 Ann., c. 20, s. 5-7, 16, 18, 19. 
 
 (c) Ante, p. 388 (/). 
 
 (d) Lloyd v. Banks, L. R. 3 Ch. 488. 
 (*) Foster v. Cockerell, 9 Bli. N. S. 
 
 332 (see 373 Jin.), explained Meux v. 
 Bell, 1 Hare 85 ; Timson v. Ramsbottom, 
 2 Ke. 35. 
 
 (f) Williams v. Thorp, 2 Sim. 257; 
 Stocks v. Dobson, 4 D. G. M. G. 11. 
 
 (g) Murray v. Pinkett, 12 C. & F. 
 764. 
 
 (ft) Fisher Mortgages (2d. Ed.), 693 
 
 (i) Accordingly, 19 Bea. 275 /. 5-8. 
 (j) Gibson v. Overbury, 7 M. & W. 
 555. 
 
 (k) As, Fish. Mor. 590 sqq.
 
 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 433 
 
 intending disponee would probably inquire is the circum- 
 stance generally recognized as having this effect (a), even 
 though that person be a Company exempt from recognizing 
 merely beneficial interests (b), or be himself the disponee 
 (c) (i) or transmittee (d) who relies on the circumstance 
 (unless he has signed a document in which his interest is 
 unnoticed but through which title to the subsequent dispo- 
 sition must be traced (e)); and though he acquired the 
 knowledge in a different capacity from that in which he 
 would be inquired of (/). But it seems necessary (g) that 
 he should have acquired the knowledge after he had begun 
 to fill the character of person from whom an intending 
 disponee would inquire. And Constructive notice (h) is 
 never sufficient (*). And when the subject is a Life- 
 insurance notice must be given in the prescribed (J) 
 
 nor for that of ■withdrawing consent to the continuance of a chose in action in 
 the Order and Disposition (fc) of a Bankrupt disponor (cases on which point are 
 not referred to in this chapter except when likely to elucidate the question 
 under consideration (/) ). To discussions on the adequacy of Evidence 
 to prove knowledge (m), and on the means by which it can best be communi- 
 cated (n), I need merely refer. Notification by a letter delivered at the office 
 of the addressee after business hours, is not treated as communicating know- 
 ledge until the time when it was probably read, nor therefore as conferring 
 priority over a rival interest knowledge of which was acquired at that time (o). 
 
 It is regrettable, having regard to the complication incident to this principle, 
 that there is not some public functionary, notice to whom, effected by the same 
 simple means by which notice to the holder is effected now, should be the 
 necessary and sufficient means of acquiring priority under this rule. 
 
 (i) A Company, indebted on bond, but entitled to counterclaims, has been 
 held (p) precluded, (by silence when informed of an assignment of the bond,) 
 from setting up counterclaims against the assignee. But this has not (9) been 
 extended to other cases. 
 
 («) Lloyd v. Banks, L. R. 3 C. D. 488 ; (J) 30- I Vic, c. 144, s. 3. 
 
 and see as to Order and Disposition, (k) Re Corbis, 4 Dea. & Ch. 357. 
 
 Stewart r. Shelley, 4 D. G. J. S. 543. (/) See Saffron- Watden B. S. v.Hay- 
 
 (b) Stewatt r. Shelley. ner, L. R. 14 C. D. 409-10. 
 
 (c)Leioerv. Wilkes, L. R. 4 C. D. 101. (m) 2 White & Tudor's Leading 
 
 See, for a curious result, Somerset v. Cases, Eq. {4th Ed.), 804b; and see L. 
 
 Cox, 33 Bea. 634. R. 3 Ch. 490 /. 33- i, qualified in SmUh 
 
 (d) Stephens v. Venables, 30 Bea. 625. v. Smith, 2 C. & M. 231, Fish. Mor. 
 
 (e) Commrs. P. Wks. v. Harby, 23 1093. [pi. 15. 
 Bea. 508. (") Lewin on Trusts (5th Ed.), 505 
 
 (f) Meux v. Bell, 1 Hare 88 /. 7-8. (o) Calisherv. Forbes, L.R.7 Ch. 109. 
 
 (g) Somerset v. Cox, 33 Bea. 634. (p) Hercules I. C.v.Brunton. L.R. 19 
 (/i) Defined ante, p. 416; explained Eq. 302; see also ColonialSfc. Co , 23 L. 
 
 below Ch. LII. T. N. S. 40. 
 
 (i) Bright's Trusts, 21 Bea. 430; sd. (q)Lewery. Wilkes, L. R. 4C.D. 101. 
 Lloyd v. Banks, L. R. 3 C. D. 490 /. 35.
 
 434 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 
 
 manner, at least if the priority be claimed under the Act 
 (a). And when the person whose knowledge would other- 
 wise be requisite is interested in concealing any claim 
 inconsistent with the disposition thus known to him, (as, 
 when it was he who made that disposition (b),) his 
 knowledge is insufficient (i), and a memorandum on the 
 last document through which title is traced probably 
 answers instead (c). And when the fund is in Court (d), a 
 stop order is the appropriate step, though the trustee be 
 disponee (e), at least if the Court has dealt with the fund 
 (/). And when part of the fund is in Court, either notice 
 (g) to the holder of the rest or a stop order (h) is sufficient 
 as to the whole. But notice to the Accountant-General 
 was never regarded (i) : and a Stop order is only effectual 
 as regards the charge in respect of which it is obtained : 
 and if both parties have simultaneously obtained (k) T or if 
 neither has obtained (/), a stop order, priority will still 
 depend on earlier knowledge. A stop order is granted only 
 after notice to all who have previously obtained such 
 orders (m), and not if the fund belong to a Lunatic (n). 
 In other cases, when there is no person on whom to 
 serve notice, (as, when the fund is standing in the name 
 of a deceased person whose executor has not proved (0),.) 
 a Distringas on the fund is necessary. 
 
 (1) The contrary seems to hold as to Order and Disposition (p). 
 
 (a) 30-1 Vic, c. 144, s. 3. & S. 20, /. 25-8 
 
 {b) Browne y. Savage, 4 Dr. 635; (i) Warburton v. Hill. 
 
 Willes v. Greenhill, (No. 1.), 29 Bea. (j) Mc.Leodv.Buchanan, 33 Bea. 234, 
 
 376. 10 Jar. 223. 
 
 (c) See Commrs. P. Wks. v. Harby, (&) Timson v. Ramsbottom, 2 Ke. 35. 
 
 23 Bea. 508. (/) So in cases of Order and Dispo- 
 
 (<f) Warburton v. Hill, ,Kay. 470; sition, Matthews v. Gabb, Thompson v. 
 
 Green v. Beckford, 5 Sim. 195. Tompkins. 
 
 (e) Elder v.Maclean, 3 Jur. N. S. 283; (m) Hulkes v. Day, 10 Sim. 42. 
 Swayne v. Swayne, 11 Bea. 463. (m) Re Wilkinson, L. R. 10 Ch. 73, 
 
 (f) W. v. H., p. 478 /. 27-30, which, overruling ex. Pigott, 3 Macn. & G. 
 however, seems to have been meant in 268. 
 
 another sense. (o) Elty v. Bridges, 2 Y. C. Ch. 486. 
 
 (g) Reasoning in Matthews v. Gabb, (p) Ex. Rogers, 8 D. G. M. G. 271, 
 15 Sim. 51; and in Thompson v. Tomp- modified in Willes v. Greenhill, (No. 2), 
 kins, 2 Dr. & Sm. 8. 29 Bea. 390, affd. id. p. 393n. 
 
 (A) Sd. Thompson v, Tompkins, 2 Dr.
 
 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 435 
 
 The character of "person from whom an intending Wfaweknow- 
 disponee would probably inquire" is (in the case of a chose laired when 
 
 in action) filled by the debtor (i) (a) if the common disponor knowledge is 
 
 ■ . . . the requisite 
 
 be competent to give a discharge to him (a) ; but when the circumstance. 
 
 power to do so is in a trustee, through whose hands the 
 fund and its income must pass to reach the common 
 disponor and the rival claimants, that character (it seems 
 (b)) is held to be filled by such trustee (c), whether the 
 chose be a fund (d), or a debt (e); while, of course, it 
 cannot be considered as filled by a mere agent (/). And 
 this character is also considered as filled by one to whom 
 the debtor has committed the fund for payment to the 
 common disponor or to those deriving under him (g), 
 though such custodian be responsible to the debtor him- 
 self only (g), and though his liability be still conditional 
 when knowledge is communicated to him (g) } as, when the 
 subject is part of the price of a commission in the army, 
 and is secured on a fund held by Army-agents for the 
 Crown, in which case the army-agents are considered as 
 filling the character in question (g). But such person is, 
 (in the last (h), and probably in every, case), considered as 
 filling this character only from the time when he receives 
 (or becomes entitled to call for) the fund (h), and bound to 
 pay it over (*);' and notification to him before he has 
 received it is held not to be evidence of knowledge after he 
 has done so (j). 
 
 The character of debtor or trustee is considered as 
 filled by the Executor when the subject is a Legacy (k) ; the 
 
 (i) I.e. Debtor or person who would be so if the time for payment had 
 arrived. 
 
 (a) Cases cited below (a- A). («) H. r. D. 
 
 (b) Bridge v. Beadon, L. R. 3 Eq. (f) This is fully recognized in the 
 646 seems contrary to the statement in judgment in H. v. D. 
 
 the text, but I cannot reconcile it with (g) Addison v. Cox, L. R. 8 Ch. 76; 
 
 the cases in the next note, nor were Browne v. Savage, 4 Dr. 635. 
 
 they cited in it. (A) Somerset v. Cox, (an extreme 
 
 (c) Gardner v. Lachlan, (decided as to case), 33 Bea. 634. 
 
 Order and Disposition, but sd. as to (i) Johnstone v. Cox, 43 L. T. N. S. 690. 
 
 priorities also,) 4 M. & Cr. 129; Holt (j) S v. C; /. v. C. 
 
 v. Dewell, 4 Hare 446; Wise v. Wise, 2 (*) Stephens v. Venables, 30 Bea. 625; 
 
 J. & L. 403. Thompson v. Tompkins, (Order and Dis- 
 
 (d) G. v. £.; W. v. W. position;, 2 Dr. & S. 8.
 
 436 FORMALITIES FOR ACQUIRING THE LEGAL ESTATE, &C. 
 
 Trustee when it is a Trustfund (a) ; the Insurer when it is 
 a Policy (b); the Company, or its officers, when it is a 
 Share (c) ; and the Debtor when it is a Debt (d), unless a 
 Company in liquidation be the debtor, in which case it is 
 considered as filled by the Official Liquidator (e). 
 
 When the character of him from whom an intending 
 disponee would inquire is filled by several persons, the 
 knowledge of any one of them is sufficient (/) to preserve 
 priority over a disposition made while he continues to fill 
 that character (g), even though they are trustees and he is 
 not the acting trustee (h), unless the fact thus notified was 
 a fraud to which he was a party (i). But it is not sufficient 
 to preserve priority over a disposition made after he has 
 ceased to fill that character (j) ; whereas knowledge by all 
 who simultaneously fill it is effectual even against a dispo- 
 sition made after they have all ceased to do so (k), unless 
 made to one of their successors (I) who holds the legal 
 estate (m), a rule which makes it desirable for a purchaser 
 of an interest in stock under a settlement to record his 
 purchase on the settlement. 
 
 (a) Lloyd v. Banks, L. R. 3 Ch. 488 ; 640 /. 3. 
 
 Commrs. P. Wks.y.Harby, 23 Bea. 508; (h) Decided respecting Order and 
 
 Willes v. Greenhill, (No. 1, 2d. point,) Disposition, but on the ground that the 
 
 29 Bea. 376; Same, (No. 2,) 29 Bea. decision would have been the same on 
 
 387; Matthews v. Gabb, (Order and the present point, Smith v. Smith, 2 C. 
 
 Disposition,) 15 Sim. 51. & M. 231. 
 
 (6) Williams v. Thorp, 2 Sim. 257; (») Sd. Willes v. Greenhill, (No. 2,) 
 
 Thompson v. Tomkins (Order and Dis- 29 Bea. 389. 
 
 position), 2 Dr. & S. 8. 0") Timson v. Ramsbottom, appealed 
 
 (c) Stewart r. Shelley, (0. and D.), 4 but compromised. And see Lewin Tr. 
 
 D. G. J. S. 543. And see re Russell, 21 503 (e). 
 
 W. R. 97. (*) Phipps v. Lovegrove, L. R. 16 Eq. 
 
 (d) Meus v. Bell, (Bond,) 1 Hare 73. 80. 
 
 (e) Wragge's Case, (O. and D.), L. (/) Prosser v. Phipps, L. R. 16 Eq. 
 R. 5 Eq. 284. 88. 
 
 (f) Meux v. Bell; Willes v. Greenhill, (m) As in P. v. P. This seems es- 
 (No. 2,) 29 Bea. 387 affd. 393n.; Bird sential, for the point seems to depend 
 v. Blyth, 24 W. R. 356. on the principle that priority by the 
 
 (g) Necessary, Timson v. Ramsbottom, legal estate prevails over priority by 
 2 Ke. 35 ; sd. Browne y. Savage, 4 Drow. circumstances equivalent to it.
 
 ( 437 ) 
 
 CHAPTER LI. 
 
 TRANSFER OF THE LEGAL ESTATE BY OPERATION OF LAW. 
 
 Passing now from the formalities by which the holder 
 of the legal estate can transfer it, we must consider the 
 circumstances under which the law, (if he performs certain 
 acts,) will do so. 
 
 The most important of these are those provided for by 
 the statute of Uses (a) (i), by which the legal estate is 
 transferred to those to whom a beneficial interest has been 
 professedly disposed of, — an enactment framed for the 
 purpose of rendering the beneficial ownership more easily 
 discoverable (b), and (no doubt) intended to apply to all 
 cases except when an aftive trust is imposed on the holder, 
 but which, from inaccurate wording and other causes, 
 operates only under circumstances of a technical character. 
 
 The statute operates whether the subject be a Corporeal 
 Tenement (c), a Seignory (d), Tithes (e), a Rent (/) 
 (subsisting (g) or freshly created (g)), a Stewardship (h), a 
 Liberty (i) (or Franchise (»)), an Advowson (J), a right 
 (perhaps) of Pasturage (k), or any other Tenement (/) 
 except those hereinafter excepted ; and whether the legal 
 estate given in trust was in fee (m), or in tail (») (even on 
 
 (i) The corresponding Irish Statute (o) is inoperative, because in Ireland 
 priority is no longer (p) conferred by the legal estate. 
 
 (a) 27 Hen. VIII, c. 10. 
 
 (b) s. 1 (preamble). 
 
 (c) s. 1. 
 
 (<f) See Farrar v. Johnson, Cro. El. 
 284; Sd. Earldom of Oxford, Jo. 117. 
 
 (•) 3 Cruise's Digest (3d. Ed.), 71 
 t. 3, (last Ed.), 49. 
 
 (f) 27 Hen. VIII, c. 10, esp. s. 3; 
 Havergill v. Hare, Cro. Ja. 520. 
 
 (g) Gilbert on Uses, (3d. Ed.), 192 
 [86], n. 4. 
 
 (A) Sd. Jo. 117-18. 
 
 (i) Sd. Jo. 117-18, 127. 
 
 0) Sd. Jo., 118. 
 
 (Jfc) Sd. Jo., 118; contra, sd. Jo., 127. 
 
 (0 1 Cru. Di. (last Ed.), 353. 
 
 (m) Lewin on Trusts (5th Ed.), 5 
 1.2. 
 
 (n) Seymour's Case, 10 Co. 95, 1 Cru. 
 Di. 352. 
 
 (o) 10 Cha. 1, eess. 2, c. 1. 
 
 (jj) Ante, p. 395-6. 
 
 Contents of 
 this Chap. 
 
 By Statute of 
 Uses. 
 Rule, and 
 Reason of it. 
 
 Applicability 
 of the Rule.
 
 Uses.) 
 
 TRANSFER OF THE LEGAL ESTATE BY OPERATION OF LAW. 438 
 
 its creation (a) ), or for life (b) ; and whether it was to be 
 transferred from the Disponor himself, (by bargain and 
 sale (c), covenant to stand seized (d) or, probably, decla- 
 ration of trust,) or from his transferee (e), (by Feoffment 
 (/), Release (g), Confirmation (g), or otherwise); and 
 whether the beneficial interest be conferred by the word 
 "use" (h), "trust" (i), "confidence" (h), or any other 
 words (J) ; and whether it be (expressly or impliedly) given 
 (Resulting to the disponor himself (k) (in which case the legal estate 
 
 is held to continue in him (/), and descends accordingly (/)), 
 or to another (in) ; and though it be but a Power to Distrain 
 (n) and Enter for securing a Rent charge («) ; and though 
 it be marked out not by the disposition by which the use 
 is originally declared, but by one made under a Power 
 contained therein (o) ; and though it be a Chattel interest 
 (p) ; and though it be subjected to limitations which would, 
 as already (q) stated, be void if impressed upon the legal 
 estate (r) (i), (in which case the statute at once moulds the 
 legal estate upon the limitations declared respecting the 
 
 (i) There are however technical rules by which uses themselves are invali- 
 dated as regards the legal estate (*) or otherwise (<). 
 
 (a) Bacon on Uses, 57 ; contra, Lewin id. 25 pi. 1 ; Clere's Case, (as to the Re- 
 
 Tr. (7th Ed.), 5 (a). suiting use prior to the death of the 
 
 (A) 1 Cru. Di. 352; Lewin on Trusts disponor) 6 Co. 176, Beckwith's Case, 
 
 (7th Ed.), 5. 2 Co. 56. 
 
 (c) 2 Sanders on Uses (5th Ed.), 53- (/) Sug. Pow. 20, pi. 32; Garth v. 
 4? For other definitions see id. 53, and Cotton, (objection 6th), 3 Atk. 756; 
 ante, p. 327 (c-e). Beckwith's Case, (as to feoffment by one 
 
 (d) 1 Sand. 219; For definition see seized on the part of the mother), 2 Co. 
 2 id. 96; and ante, p. 327 (/-»)• 58a; 1 Sand. (4th Ed.), 133. 
 
 (e) Sugden, Powers, 10 PI. 16. (»«) So in most of the cases. 
 (/) Sammes's Case, 13 Co. 54. (n) 26 Hen. VIII, c. 10, s. 3. 
 (g) Sd. Sammes's Case, (2d. point). (o) Sug. Pow. 30-1 , Clere's Case, 
 (h) 27 Hen. VIII, c. 10, s. 1. (p) As in the ordinary conveyance 
 («) s. 1 ; Robinson v. Grey, 9 Ea. 1; by Lease and Release. And see Gilb. 
 
 Williums v. Waters, 14 M. & W. 166; 192. 
 
 Nash v. Allen, 1 H. & C- 167; Author- (?) Ante, p. 212 (a)-215; 217 (6); 
 
 ities in Lewin 173 (/), 174 (6), modified 221 (i). See also this subject discussed 
 
 by id. 193 (m); Doe v. Terry, 11 Ea. in 1 Sand. (4th Ed.), 129 sqq. 
 
 377. (r) Sug. Pow. 32, 34; 1 Cru. Di. 363. 
 
 O') I Sand. 95 (n. 9)-96 (11. 3); Sey- (s) Ante, p. 217(e), 218(5), 219(/). 
 
 mour's Case, 10 Co. 95b. (t) Ante, p. 221 (rf)-223 (•'). 
 (fc) Sug. Pow. 20, pi. 32; extended,
 
 TRANSFER OF THE LEGAL ESTATE BY OPERATION OF LAW. 439 
 
 beneficial (a), and does not (a), as was once (b) supposed, 
 confine its operation at first to those which would have 
 been allowable on a limitation of the legal estate, and then 
 alter the other limitations as they arise (i)); and though 
 an Active trust precedes the limitations in question (c); and 
 though the limitation of the beneficial estate was Testa- 
 mentary, (whether the legal estate which was to be trans- 
 ferred to it was given by the Will (n), or by a previous 
 nontestamentary disposition (i)); and though an intention 
 be manifested that the legal estate should rest in the trustee 
 (e), (as, when the limitation is for the Separate use (/) of 
 a Married Woman (g))', and though the trustee himself 
 was one of the beneficiaries (h); or the beneficiary one of 
 the trustees (*'); and though the beneficiary be a body 
 politic (J) ; or be the Wife of the disponor (k). 
 
 But the Statute operates only on Tenements (/); and Conditions of 
 r J . v the Rule, 
 
 only on subjects already belonging to the disponor (m) ; and 
 
 can only transfer an estate commensurate with that which 
 
 the person from whom it is to be transferred holds, (so that, 
 
 (i) This latter doctrine was expressed by saying that the trustees retained a 
 scintilla juris wherewith to serve the future uses, — a distinction admittedly with- 
 out a difference. 
 
 (n) The Statute expressly extends to Wills (»), but it has been thought (o) 
 that those only are meant which might then have been made, namely, Wills 
 authorized by some local custom. More probably all Wills authorized by any 
 law which should afterwards be made are included. And even those who 
 maintain the former opinion, do not infer that on a devise to one to the use of 
 another the legal estate will remain in the former, but think that, in such a 
 devise an intention is manifested that the latter shall have that estate, and infer 
 that it will pass to him accordingly. But such an intention seems negatived by 
 the words. However, if the latter opinion be correct, the death of a devisee to 
 uses before that of the Testator ought to invalidate the devise (p). 
 
 (a) 23-4 Vic, c. 38, s. 7; 27 Hen. (h) Samme's Case, 13 Co. 54. 
 
 VIII, c. 10, s. l.J&i. («) 27 Hen. VIII, c. 10, s. 2. 
 
 (6) Chudleigh's Case, 1 Co. 120a; 1 (j) s. 1. 
 
 Sand. 112-14. (*) 1 Cru. D. 354 pi. 25. 
 
 (c) Robinson v. Grey, 9 Ea. 1. (0 North v. Butts, 3 Dy. 140, pi. 39. 
 
 {d) Clere's Case, 6 Co. 17b. (m) Yelverton v. Yelverton, Cro. El. 
 
 (e) See Williams v. Waters, 14 M. & 401. 
 
 W. 173, (modified by the authorities in (n) 27 Hen. VIII, c. 10, s. 1. 
 
 Lewin on Trusts (5th Ed), 173 (i); (o) This subject is discussed in Sug. 
 
 Cawardine v. Cawardine, 1 Eden. 36. Pow. 146-8, 197 (pi. 13 14), and in J 
 
 (f) Explained ante, p. 137 (d-j). Cru. Di. 367-70. 
 (9) W. v. W. (j>) See below.
 
 440 TRANSFER OF THE LEGAL ESTATE BY OPERATION OF LAW. 
 
 on a disposition to A for life to the use of B in fee it can 
 Exceptions. only transfer the estate for A's life (a) (i)). And it does not 
 apply to Dignities (b), &c; nor, it seems, to subjects which 
 only exist so far as they are used, as, Profits in prender and 
 Easements (c), at least not on their creation (i); nor to 
 Copyholds (e) ; nor if the legal interest which is to be trans- 
 ferred be a Chattel interest (/) ; or be an interest which is 
 expected to be acquired by forfeiture for breach of Con- 
 dition (g); nor, perhaps, if the disposition by which the 
 legal estate is limited be a Lease (h); nor, perhaps, if the 
 use be limited to shift twice (i) ; nor if the Trust be an Active 
 one (j) (n); nor if the words by which the beneficial estate 
 is limited be preceded by words purporting to limit it to 
 some one else, as upon a limitation to A upon trust for A (k), 
 [or for B], upon trust for C, (for in this case the legal estate 
 continues in, or is transferred to, the first beneficiary, not 
 the second (/)); nor if the King be (m) (or be entitled to 
 the lands of («)) the trustee on whose estate the statute 
 was to operate; nor if a Corporation be such trustee (o). 
 
 (i) Yet a gift by Will directly to the use of A passes the legal estate to him 
 (p). And it is questionable (q) whether a gift to a person who afterwards dies 
 before the testator to the use of A would not have the same effect. 
 
 (n) When words importing an active and words importing a passive trust are 
 used in the alternative, the earlier words prevail in a Deed, and the later in a 
 Will (r). 
 
 (a) Sug. Pow. 149; Cooper v. Frank- Underbill v. Roden, L. R. 2 C. D. 499, 
 lin, Cro. Ja. 400, (discussed in 1 Cru. /. 9, 10; Authorities in Lewin Tr. 173 
 Di. 352, modified (when the use is for ifl-i); 1 Sand. 241-56. 
 
 the trustee himself) by Jenkins v. (k) Doe v. Passingham, 6 B. & C. 305; 
 
 Young, Cro. Ca. 230, and Meredith v. Cooper v. Kynock, L. R. 7 Ch. 398. 
 
 Jones, Cro. Cha. 244. (/) Authorities in Lewin, 173 (c, 
 
 (b) Earldom of Oxford, Jo. 127. d); Sug. V. P. 9, pi. 14, 191-2; Au- 
 
 (c) Sd., as to Commonable rights, thorities in 6 Chitty's Statutes (4th 
 Ways in gross, Hunting, &c, Jo. 127. Ed.), 760 (»), modified in Sug. Pow. 
 Contra, as to Commons, sd. Jo. 118. 10, pi. 15. As to Powers see Sug. Pow. 
 
 (d) Beaudley v. Brook, Cro. Ja. 189. 149, 191, modified in ib. 196-7, and in 
 
 (e) Coke's Copyholder, s. 54 ; Gilbert Cromwell's Case, 2 Co. 69b. 
 
 on Tenures, 182; Cowp. 709. (m) Atkins v. Longvill, Cro. Ja. 50. 
 
 (/) Gilb. on Uses [79] ; Bac. 42, 335. (n) Pimb's Case, Moo. 190; King v. 
 
 But that the beneficial interest may be a Boys, Dy. 283. 
 
 chattel interest, aw/e, p. 438 (p). For de- (o) Bac Uses, 42-57; 1 Sand. (4th 
 
 finitionofa chattel interest, ante, p.4,10. Ed.), 59 (o), 88 (/), 89 (m). 
 
 (g) Hollowav v. Pollard, Moo. 761. (p) 2 Jarman on Wills (3d. Ed.), 
 
 (/*) Sand. (4th Ed.), 32 sqq. 268; Sug. Pow. 196-7. 
 
 (i) See Sug. Pow. 29 pi. 12. (q) 2 Jarm. 269 (c). 
 
 (;) Berry v. Berry, L. R. 7 C. D. 657; (r) Doe v. Biggs, 2 Tau. 109.
 
 TRANSFER OF THE LEGAL ESTATE BY OPERATION OF LAW. 441 
 
 The right of action for breach of a covenant (a) (" running 
 with the land" (b)) passes also to anyone to whom the legal 
 estate is transferred by statute. 
 
 By modern Acts of Parliament the legal estates of several 
 functionaries passes to their successors on appointment. 
 This is the case with Bankruptcy-trustees (c), Liquidation- 
 trustees (d), Charity-trustees (e\ certain Ecclesiastical 
 Persons (/), the Ecclesiastical Commissioners for England 
 (g), the First Charity Estates Commissioner for England 
 (h), the Judge of the Probate Division in England (/) or 
 Ireland (_/), the Commissioners of Works (as to Parks {k)), 
 the Prisons Commissioners (/), the Sanitary Authorities 
 (m), the Secretary of the Public Works Loans Commis- 
 sioners (as to securities) (n), and the Methodist Society in 
 Ireland (o). 
 
 And, when it becomes necessary that the legal estate 
 vested in private fiduciaries should be transferred to others, 
 and difficulties exist in obtaining a transfer in the ordinary 
 way, the Chancery Division (p) and County Courts (q) are 
 authorized to make it by Vesting Order (i). 
 
 Transfer of 
 Covenant. 
 
 Transmission 
 of Legal estate 
 to certain 
 Functionaries. 
 
 By Vesting 
 Order under 
 the Trustee 
 Acts. 
 
 (i) In the notes I refer to cases (upon these enactments) in which the legal 
 estate has been transferred from a Lunatic Tenant in tail (r), an Infant holding 
 on trust for himself (s), a Mortgagor of Copyholds refusing to surrender to the 
 
 (n) Sug. V. P. 578, pi. 5; Lee v. Ar- 
 nold, 4 Leo. 27; Holt v. Osborne, Mo. 
 859, contra, Cook v. Herle, 2 Mod. 138. 
 
 (b) For what Covenants run as to the 
 benefit see ante, p. 157-161. 
 
 (c) 32-3 Vic, c. 71 (E.), s. 17,83(6); 
 35-6 Vic, c. 58 (I.), s. 91, 121 (5). 
 
 (d) 32-3 Vic, c 71 (E.), s. 125, (5- 
 
 7). 
 
 («) 2-3 Wm. IV, c 57, s. 3; 13-14 
 Vic, c 60, s. 45; 16-17 Vic, c 137, s. 
 49, 65; 3-4 Vic, c. 108, s. 112, &c ; 
 13-14 Vic, 0. 60, 8. 45. 
 
 (/) 31-2 Vic, c 114,s. C, 13. 
 
 (p) 3-4 Vic, c. 113, s. 49; 4-5 Vic, 
 c. 39, s. 4, 17; 23-4 Vic, c. 124, s. 2; 
 5 Geo. IV, c 103, s. 14; 8-9 Vic, c. 70, 
 s. 13; 14-15 Vic, c. 97, s. 28. 
 
 (h) 13-14 Vic, c. 94, s. 6. 
 
 («) 21-2 Vic, c. 95,s. 19. 
 
 (j) 22-3 Vic, c 31. 
 
 (*) 14-15 Vic, c 42; 37-8 Vic, c. 84. 
 
 (/) 40-1 Vic, c. 21, s. 48. 
 
 (m) 38-9 Vic, c. 55 (E.), s. 12; 37-8 
 Vic, c 93 (I.), s. 9. 
 
 («) 38-9 Vic, o. 89, s. 7, 8, 20. 
 
 (o) 34-5 Vic, c. 40, s. 9. 
 
 (p) 13-14 Vic, c. 60; 15-16 Vic, c. 
 55; 17-18 Vic, c. 82 (E.), s. 11; 18-19 
 Vic, c 91, s. 10; 21-2 Vic, c 72 (I.), 
 s. 66, 67; 31-2 Vic, c. 40, s. 7; 32-3 
 Vic, o. 71 (E.), s. 117; 34-5 Vic, c 22 
 (I.), s. 88; 38-9 Vic, c. 87 (E.), s. 85. 
 
 (7) 28-9 Vic, c. 99 (E.), s. 1, (5), 
 10; 40-1 Vic, c 56 (I.), s. 33, 34, 40. 
 
 (r) Mason v. Mason, L. R. 7 C D. 
 707. 
 
 (*) Gardner v. Cowles, L. R. 3 C. D. 
 304. 
 
 56
 
 442 TRANSFER OF THE LEGAL ESTATE BY OPERATION OF LAW. 
 
 By miscel- So Registration of the Satisfaction of a Judgment- 
 
 laueous T . . . . - ... . 
 
 Statutes. mortgage in Ireland {a), and a receipt for the payment of 
 
 mortgage money to a Building Society established before 
 
 (b) or since (c) 2d. Nov. 1874, a Friendly Society (d), or 
 
 Industrial (e) Society, re-transfer the legal estate to (at least 
 
 in the latter case) whomsoever may have the best right to 
 
 call for it (/), whether he be the person who pays off the 
 
 mortgage, or not (/), a construction which renders the 
 
 ascertainment of the legal estate much more difficult than 
 
 if it had been held to pass to whomsoever would have been 
 
 holder of it if the mortgage had not been made, as it does 
 
 on satisfaction of the registered mortgage of a Ship (g). 
 
 Finally, the legal estate in a Satisfied Term (h) ceases (7) 
 
 on its becoming satisfied (1). 
 
 use of the mortgagee (j), a co-mortgagee outside the Jurisdiction (Jfc), or an 
 alien (/)) ; cases in which no person was holder of that estate (m) ; a case in which 
 the trustee had asked to he paid for conveying (n); a case in which Irish Stock 
 was the suhject matter (o) ; and cases in which the question arose upon these 
 enactments in comhination with the Partition act (p), or the Settled Estates 
 act (q). 
 
 (1) A Bankruptcy-Trustee does not acquire the legal estate in stock until 
 his title has been registered (r). 
 
 (a) 21-2 Vic, c. 105, s. 5. (k) Osborne, L. R. 12 Eq. 392. 
 
 (6) 6-7 Wm. IV, c. 32, s. 5. (/) Martinez, 22 L. T. N. S. 403. 
 
 (c) 37-8 Vic, c. 42, s. 42, sch. (m) Dalgleish's, L. R. 4 C. D. 143; 
 
 (J) 38-9 Vic , c. 60, s. 16 (7, 8). McCarthy, Ir. R. 1 C. D. 16. 
 
 (e) 39-40 Vic, c 45, s. 12 (8,9). (n) O'Donnell, 19 W. R. 522. 
 
 (f) Fourth City Sfc, Marson v. Cox, (o) Hodgson, L. R. 11 C. D. 888. 
 
 L. R. 14 C. D. 144 (decided on the 37- (p)Barnettv.Moxon, L.R.20 Eq.20. 
 8 Vic, C. 42). « (q) Scott v. Heisch, 33 L. T. N. S. 
 
 (g) 17-18 Vic, c 104, s. 68. 498b. 
 
 (/») Explained, ante, p. 403 (i). (r) r. London $c. Co. L. R. 9 Eq. 
 
 (t) 8-9 Vic, o. 112. 653. 
 
 (J) Crowe, L. R. 13 Eq. 26.
 
 ( 443 ) 
 
 CHAPTER LII. 
 
 WHAT CONSTITUTES NOTICE. 
 
 Broadly speaking, Knowledge of a fact, and the Means General Rule 
 of knowledge of it, alike constitute notice of it, unless JT lth Exce P~ 
 circumstances have occurred to excite a belief that it never 
 existed, or has ceased to exist (i). 
 
 Knowledge of a rival interest, and, (pursuant to the First deriva- 
 maxim " ignorantia juris non excused" (a),) knowledge of all !'^ e ", , : . 
 (b) the facts (c) or rights (d) from which a rival interest Actual Notice), 
 arises by operation of law, or even of fads by which a 
 presumption of law that such an interest exists is raised, 
 are alike reckoned Actual notice, and so is an impression 
 that some trust exists (e), unless followed up by ineffectual 
 inquiry into its nature (/). Knowledge, however, can be 
 
 (i) The term " Constructive Notice," however, is often used as meaning 
 " Knowledge in the agent, or means of knowledge in either the party himself or 
 his agent" {g). 
 
 (a) See 1 Co. 177; 4 Blackstone 
 Coram. 27; Cooper v. Pkibbs, L. R. 2 H. 
 L. 170 (corrected in the corrigenda of 
 that volume). 
 
 (6) Harry man v. Collins, 18 Vez. 11. 
 
 (c) Att.-Gen. v. Pargeter, (in which 
 the legal estate seems to have been the 
 ground of priority relied on) 6 Bea. 150; 
 Eyre v. Dolphin, (in which it appears 
 ■ from p. 294 /. 7, and p. 297 /. 2 that 
 the Irish Registry Act was the ground 
 of Priority relied on) 2 Ba. & B. 290; 
 Faithful v. Ewen, (in which however the 
 only ground on which priority was 
 claimed over the party entitled to the 
 earlier interest was that he was pre- 
 cluded by his silence from asserting his 
 claims), L. R. 7 C. D. 495; Frail v. 
 Ellis, (iu which Registration in Middle- 
 sex was relied on), 22 L. J. Ch. 4G8b, 
 16 Bea. 350; Hamilton v. lioyse, (in 
 
 which, though the lands were in Ire- 
 land, the Legal estate seems to have 
 been the only ground on which prior- 
 ity was claimed) 2 S. & L. 315 (last 
 point). This point seems also to have 
 been admitted in Att.-Gen v. Bisphos- 
 pkated Co., L. R. 11 C. D. 327. And 
 see Beaufort v. Patrick, 17 Bea. 74, 78. 
 But the extent to which the doctrine 
 has been carried was disapproved by 
 Ld. St. Leonards in LI. & G. t. Sug. 
 252, and in Sugden on Vendors (14th 
 Ed.), 776 (p). 
 
 (d) Selby v. Nettle/old, L. R. 9 Ch. 1 1 1 . 
 
 (e) lioursot v. Savage, (in which the 
 property, though situate at Islington, 
 does not appear to have been registered,) 
 L. R. 2 Eq. 141. 
 
 (f) Sd. Boursot v. Savage, p. 141 I. 5-, 
 
 (g) See L. R. 15 C. D. 643-4.
 
 444 
 
 WHAT CONSTITUTES NOTICE. 
 
 Second deriva- 
 tive Rule; 
 (Means of 
 Knowledge are 
 Constructive 
 notice). 
 Rule. 
 
 proved by presumptive evidence, and questions often arise 
 (a) respecting the sufficiency of the proof. And Knowledge 
 acquired in a former transaction is presumed to continue 
 in the later (b), although circumstances occurring in the 
 former will not generally create Constructive notice in the 
 latter {c). But knowledge is not presumed from casual 
 information (d) unless attention was called to the matter 
 (e), rumour being insufficient (e) except as against the 
 fiduciary of the party whose rights are rumoured (/). The 
 question under what circumstances knowledge is to be 
 inferred is so closely allied with the question under what 
 circumstances means of knowledge are to be considered 
 equivalent to it that both must be discussed together, al- 
 though their consequences are, in some cases (g), different. 
 Possession of the means of Knowledge is generally 
 reckoned Constructive Notice. Opinions differ as to the 
 propriety of this rule, many thinking that it is reasonable 
 only when the disponee's motive in omitting inquiries is 
 fraudulent, and all that it needs restriction and definition ; 
 but nevertheless some of its branches could not be wisely 
 dispensed with, and in all, indefiniteness is its chief evil. 
 When a man knows what precautions he is expected to take 
 for the ascertainment of preceding claims his post- 
 ponement to them is generally his own fault; but it is 
 scarcely fair to tell him that no duty is cast upon him (h), 
 but that nevertheless, if a judge should at any future time 
 infer that he has neglected the usual precautions,' or has, 
 
 (a) See Atl.-Gen. v. Biphosphaled Sfc. 
 Co., L. R. 15 C. D. 327; Cosser v. Col- 
 tinge, 3 M. & K. 283; Crojtony. Ormsby, 
 2 S. & L. 83 ; Paterson v. Long, 6 Bea. 
 590; Frocter v. Cooper. (Search of Re- 
 gistry), 2 Dr. 1 ; Perkins v. Bradley, 1 
 Hare 219; Brothers v. Bence, Fitz. 118. 
 That this is not always so appears from 
 some old cases cited in Sug. V. P. 755 
 (b). See also, as to imputing an Agent's 
 knowledge to his principal, ch. LIII. 
 
 (6) L. R. 15 C. D. 643-4. 
 
 (c) Hamilton v. Royse, 2 S. & L. 327. 
 
 (d) Saffron-Walden B. S. v. Rayner, 
 (as to Notice to the Holder), L. R. 14 
 C. D. 411-12. 
 
 (e) 2 White k Tudor L. Cases (4th 
 Ed), 51; See Sug. V. P. 755 (e). 
 
 (f) Imperial Land Co. r. Larking, L. 
 R. 4 C. D. 576. 
 
 (g) Ante, p. 407 (rf-A), 413 (A)-414 
 (rf), 419 (Jfe)-420 (c). 
 
 (h) P. Ld. Selbokne in Agra Bk. v. 
 Barry. L. R. 7 H. L. 135, approved 46 
 L. J. Ch. 48 (b).
 
 WHAT CONSTITUTES NOTICE. 
 
 445 
 
 in omitting inquiry, been actuated by a desire to continue 
 ignorant of rival interests, he shall be postponed to them 
 as effectually as if he had been aware of them ; and this 
 unfairness is more conspicuous when we consider that 
 what is sufficient to affect one person is not necessarily 
 sufficient to affect another (a), a point which must be 
 borne in mind when perusing this chapter, but which is 
 generally neutralized by the counter-rule that whatever 
 would affect a lawyer with notice will affect any other 
 person in any transaction in which a lawyer would be 
 ordinarily employed (b). But circumstances are only (i) 
 held to constitute Constructive Notice when they are 
 suggestive of Inquiries through which the rival interest 
 might be discovered ; and only if the disponee either knows 
 them to relate to the property in question (c) and ought to 
 be led by them to suspect the existence of the rival interest, 
 or neglects the precautions usual in like cases; and not if he 
 believes, on adequate grounds, that no rival claim exists. 
 
 The circumstances by which a disponee would be led to 
 presume the existence of a rival interest also afford evidence 
 that he knew of it, and it is impossible to say whether, in 
 any given case, the court has considered them as con- 
 stituting constructive, or proving actual, notice. But, on 
 one or the other ground, Notification of a fact is notice of 
 it, though neither read nor believed (d); and knowledge of 
 a transaction is notice of a stipulation by which it is 
 usually accompanied (e), though the connection be such 
 that only conveyancers are aware of it (e); and, con- 
 
 Conditions of 
 the Rule. 
 
 Exception. 
 
 First conse- 
 quence of this 
 Rule. 
 
 (Circumstances 
 raising 
 Presumption 
 are notice). 
 Statement. 
 Examples. 
 Notification. 
 
 (i) The best general statement of the law on this subject is given in the 
 authority (/) in the note. Mere lack of Caution does not constitute Construct- 
 ive Notice (g). 
 
 (a) Jones v. Smith, (a Leading Case), 
 1 Hare 55 /. 6-8. See important ob- 
 servations in 4 D. G. M. G. 471, and I 
 Hare 56 /. 4. 
 
 (6) Kennedy v. Green, 3 M. & K. 713. 
 
 (c) Said to be necessary, Jones v. 
 Smith, 1 Hare S5. 
 
 (d) Sd. Snowball r. Douglas, L. R. 7 
 
 Ch. 549 /. 21-4. 
 
 (e) Ladbrook v. Lee, 4 D. G. S. 106, 
 and see Gibson v. Ingle, 6 Hare 112, 
 (now superseded by Keith v. Burrows, 
 L. R 2 Ap. 636). 
 
 (f) 1 Hare 55. 
 
 \g) 1 Hare 56 /. 7.
 
 446 
 
 WHAT CONSTITUTES NOTICE. 
 
 Knowledge of 
 circumstances 
 affording 
 Presumption 
 of Law. 
 
 Knowledge of 
 circumstances 
 affording 
 Presumption 
 of Fact. 
 
 Knowledge of 
 alternative. 
 
 sequently, knowledge of a Mortgage is notice that it 
 contains a power of sale (a), and knowledge of a Lease (b) 
 or Settlement (c) is notice of the usual (d) clauses in it. 
 And knowledge of facts from which the law presumes a 
 right is notice of that right ; and hence, knowledge that a 
 purchaser stood in a confidential (e) or superior (/) position 
 to his vendor is notice that his purchase was voidable; and 
 knowledge that the limitations which subsisted in property 
 before it was mortgaged differ from those prescribed by 
 the proviso for redemption is notice that the latter were 
 inserted by mistake (g). And knowledge of circumstances 
 tending to prove Fraud (A), or Breach of Trust (i), or 
 (perhaps) the existence of Incumbrances (_/), are notice of 
 these facts: — thus, knowledge that the vendor had pre- 
 viously committed a similar fraud and has now signed a 
 misleading deed is notice of the first (k), and inadequacy 
 of price may be notice of any one of the three (I). And 
 knowledge that one partner has taken out a patent 
 respecting a matter with which the partnership is concerned 
 is notice that his co-partner is interested therein (m). And 
 
 (a) Leigh v. Lloyd, 2 D. G. J. S. 330. 
 
 (6) Hall v. Smith, 14 Vez. 426; Eyre 
 v. Dolphin. 
 
 (f) Eyre v. Dolphin, (even to dis- 
 placing Registration in Ireland), 2 Ba. 
 & B. 301-2. 
 
 (d) Wilbraham v.Livesey, 18 Bea.206. 
 
 (e) Cookson v. Lee, (premises in York- 
 shire, but registration not stated) 23 L. 
 J. 473; Robinson v. Briggs, 1 S. & G. 
 183, 277; Molony v. Kernan, (premises 
 in Ireland, but registration not stated), 
 2 Dr. & War. 3 1 ; Dunbar v. Tredennick, 
 (same), 2 Ba. & B. 304. And these 
 circumstances probably had weight in 
 Kennedy v. Green, 3 M, & K. 720 fin — 
 723, criticised in Sug. V. P. 769, /. 6- 
 14. As to the grounds of invalidity, 
 see ante, p. 193 (6). 
 
 (f) Tabor v. Cunningham, 24 W. R. 
 156a./j/i; Maitland v. Backhouse, 10 Jur. 
 45; See also Archer v. Hudson, 7 Bea. 
 551; And, as to purchaser's right to 
 rescind on this ground before comple- 
 
 tion, Boswellv. Mendham, 6 Madd. 373; 
 Warde v. Dixon, 28 L.J. Ch.315; And, 
 as to an attempt by the purchaser to 
 obtain the legal estate, Hannah v. 
 Hodgson, 30 Bea. 19. As to the ground* 
 of invalidity, ante, p. 128 (e)-134 (c), 
 especially 133 (</). 
 
 (g) Dawson v. Bk. of Whitehaven, L. 
 R. 4 C. D. 649 I. 33-4, as compared 
 with p. 642-3; (afterwards rvd. on a 
 different point). As to the doctrine 
 that mistake is presumed iu such cases, 
 see Sug. Pow. 277-84. 
 
 (h) Henderson v. Compton, (subject a 
 Cargo), L. J. 42 P. C. 60; Jones v. 
 Gordon, 1 L. R. 2 Ap. 622-3. 
 
 (i) Stevens v. Austen, 3 E. & E. 635. 
 
 (j) Sd. Stockdale v. South Sea Co., 
 Barn. Chanc. 367. 
 
 (it) As in H v. C. 
 
 (/) /. v. G.; S. v. A.; sd. S. v. S. A- 
 Co. 
 
 (m) Kennys v. Summer veil, 26 W. R. 
 786.
 
 WHAT CONSTITUTES NOTICE. 
 
 447 
 
 knowledge that one of two documents was meant to be 
 
 identical with the other is notice of which was the 
 
 mistaken one (a). But the knowledge of circumstances Qualification 
 
 productive merely of suspicion of a rival right or interest is quence- 
 
 not notice of it (b); and hence knowledge that Shares stood Circumstances 
 
 c . . raising Sus- 
 
 m the names of two persons is not notice that they were picion are not 
 
 held on trust (c) ; nor is knowledge that Mortgage-money notlce - 
 was advanced on a joint account notice that it is trust- 
 money (d); nor is knowledge of a Marriage notice of a 
 Settlement (e) (i) (at least if this be denied (/)); nor is 
 knowledge of grounds for suspecting that a Power of 
 disposition may have been unwarrantably exercised notice 
 that it was so (g) ; nor are grounds for suspecting that a 
 testamentary (n) disposition was obtained by Undue 
 Influence notice that it was so, at least after the contrary 
 has been once decided (A) ; nor is knowledge of some of the 
 facts necessary to found a rival claim notice of the rest, 
 (for example, knowledge that Land-tax has been redeemed 
 by persons acting without authority on behalf of an Infant 
 is not notice that the consideration came out of his personal 
 estate and that therefore his representatives are entitled to 
 a charge upon the property (/),) at least, if there are 
 circumstances tending to an opposite conclusion (i); nor 
 
 (i) Of course a purchaser must, notwithstanding this, inquire whether there 
 he a settlement, for there may be one affecting the legal estate and therefore 
 binding irrespective of notice. 
 
 (n) For there is no presumption that a testamentary disposition was so ob- 
 tained (j). 
 
 (a) Burchell v. Clarke, L. R. 2 C. P. 
 D. 88, in which the decision was prac- 
 tically as above though express allusion 
 to rectification was made only in the 
 court below. 
 
 (6) Kenny v. Brown, 3 Ridg. P. C. 
 513; West v. Reid, 2 Hare 260-2; Emi- 
 lien Marie, (3d. point), 32 L. T. 434; 
 probably the first point in Davies v. 
 Thomas, 2 Y. & C. 244, cannot be sup- 
 ported. 
 
 (c) Dodds v. Hills, 2 H. & M. 424. 
 
 (d) See 2 Davidson's Conveyancing 
 3d. Ed.), 596-7. 
 
 (e) Jones v. Smith, (leading case), 1 
 
 Hare 69 /. 26-8. 
 
 (f) J- v. S., commented on 2 Hare 
 258-60. 
 
 (9) McQueen v. Farquhar, 11 Vez. 
 479-80; Palmer v. Locke, L. R. 15 C. 
 D. 300 /. 5-18, 302 /. 11-15; Green v. 
 Pulsford, 2 Bea. 70; modified Palmer v. 
 Wheeler, 2 Ba. & B. 3 1 . 
 
 (h) Grove v. Bastard, 1 D. G. M. G. 
 69, overruling in principle S. C. 2 Ph. 
 619. 
 
 (») Ware v. L. Egmont, 3 D. G. M. 
 G. 472, /. 2. 
 
 {j) Ante, p. 133 (fc).
 
 448 
 
 WHAT CONSTITUTES NOTICE. 
 
 Second Conse- 
 quence of this 
 Rule: 
 
 (Negligence is 
 Constructive 
 Notice ). 
 Statement. 
 
 Examples. 
 Inquiry from 
 Occupier. 
 
 is Attestation of a document notice of its contents (a); and 
 of course knowledge of a deed cannot bind the purchaser 
 to inquire whether it was fairly obtained (b) and the 
 purchase-money paid (c). 
 
 The precautions neglect of which is held to amount to 
 constructive Notice are equally necessary though there be 
 no fradulent motive on the disponee's part (d) ; and they 
 consist of those which he would be led by his own interest 
 to take if he had no legal estate to rely upon (e), and (it is 
 said (/)) of those the neglect of which amounts to a wilful 
 turning away; but they are not (or at least those involving 
 an investigation of the title prior to the last registration 
 are not) necessary in case of Stock (g), or British Ships (/*). 
 
 Of these precautions the first is Inquiry from any person 
 in occupation of the subject of property (i) as to both his 
 own title («') and that of the Landlord to whom he pays rent 
 (J), — a step equally necessary whether he occupies under 
 a Lease (k), an agreement for Renewal (I), a Tenancy with 
 right to timber (m), a Purchase (n) or agreement to purchase 
 (o), a Mortgage (p), or a Partnership (q); and though the 
 
 (i) Hence some have inferred that a Purchaser is not entitled to compensa- 
 tion from his Vendor for au interest belonging to a person in possession, but 
 there is (of course) no ground for this (r). 
 
 (n) Powell v. Pleydell, 1 B. P. C. 124; 
 Fisher on Mortgages (2d. Ed.), par. 
 1133. 
 
 (6) Read v. Ward, 7 Vin. Ab. 123. 
 
 (c) Fish. Mor. 617 (A), 623 (p). 
 
 (d) Jones v. Williams, (3d. point), 24 
 Bea. 47. 
 
 (e) Sd. in effect, Agra Bk. v. Barry, 
 L. R. 7 H. L. 157, approved 46 L. J. 
 Ch. 48b. 
 
 (f) Sd. Jones v. Smith, 1 Hare 55-6. 
 (j) Dodds v. Hills, 2 H. & M. 424. 
 
 Below Ch. LV. 
 
 (A) 17-18 Vic, c. 104, s. 43; Below 
 Ch. LV. 
 
 (i) Allen v. Anthony, 1 Mer. 282; 
 Cavender v. Bulteel, L. R. 9 Ch 79; 
 Daniels v. Davidson, 16 Vez. 249; Har- 
 vey v. Smith, 1 K. & J. 394 (in which 
 another small point was also relied on) 
 22 Bea. 299; Holmes v. Powell, (pro- 
 perty in Yorkshire but whether regis- 
 tered does not appear), 8 D. G. M. G. 
 
 589 ; Poioell v. Dillon, (premises in Ire- 
 land, but whether registered does not 
 appear), 2 Ba. & B. 421; Taylor v. 
 Stibbert, 2 Vez. J. 437. See also Comb. 
 700; and for modifications of the doc- 
 trine, see the authorities in I Hare 62, 
 and Penny v. Watts, 2 D. G. S. 501 
 afterwards rvd. on another point). 
 
 (J) Bailey v. Richardson, 9 Hare 734, 
 commented on in Barnhardt v. Green- 
 shields, 9 Moo. P. C. 33, 34 ; Knight v. 
 Bowyer, 2 D. G. J. 449-51, overruling 
 dictum in 3 Sug. V. P. (10th Ed.), 10. 
 
 (k) See A. v. A. 
 
 (1) D. v. D. 
 
 (m) A. v. A. 
 
 (w) P. v. D.; T. v. S. 
 
 (o) H. v. P. 
 
 (p) B. v. R. 
 
 (a) C. v. B. 
 
 (r) See Caballero v. Henty, L. R. 9 
 Ch. 447; and Phillips t. Miller, L. R. 
 10 C. P. 427, 429.
 
 WHAT CONSTITUTES NOTICE. 449 
 
 subject be held by documentary evidence so that possession 
 is not evidence of the title to it, (as, a tenement (a)); and 
 though it be a Mine (b), or a Profit in prender (c), or an 
 Easement (d); and though his title accrued after the 
 commencement of his occupation (e); and though his 
 occupation was not visible (/); but not if the purchaser 
 derives under a Registered deed (the property being in 
 Ireland (g) or perhaps in a Register County); and not if 
 the possession was Vacant, though the last occupier may 
 have been accessible (h). 
 
 The second precaution is Inquiry as to who has each Title- inquiry who 
 Deed (*"), — and is necessary, though the property be Copy- *L as '' ltle 
 hold (/); and though it was sold in small lots and the 
 Conditions of sale were so framed as to preclude the 
 purchaser from inquiring after the deed in question (k); 
 and though that deed related to other property also (/). 
 But this precaution is not always necessary when the deed 
 is of early date (m). 
 
 The third precaution is Inquiry from the person who, (to i nq uiryfrom 
 
 the disponee's knowledge,) has («), or would (by a usage him who has the 
 
 Title-Deeds • 
 known to the purchaser) probably have (0), a Title-Deed 
 
 (p), Copy of Court-roll (q), &c, relating to the property, as 
 
 to whether he or his principal or beneficiary has any and 
 
 what interest therein. But this step is not necessary when 
 
 the disponee has become exonerated from the duty of 
 
 (a) Allen v. Anthony, 1 Mer. 282; Peto v. Hammond, 30 Bea. 495; Spencer 
 
 Bailey v. Richardson, 9 Hare 734; Ca- v. Clarke, L. R. 9 Ch. 137; Whithread 
 
 vender v. Bulled, L.R.9 Ch. 79; Daniels v. Jordan, (1st point), 1 Y. & C. 303; 
 
 V. Davidson, 16 Vez. 249; Potcell v. Worlhingtony. Morgan, 16 Sim. 547. 
 Billon, 2 Ba. & B. 421 ; Taylor v. Stib- (j) W. v. /. 
 
 bert, 2 Vez. J. 437. (*) P. v. H. 
 
 (b)Hv.P. (1) Sd. Atterbury v. W alius, (2d. 
 
 (c) A. v. A. point), 8 D. G. M. G. 454. 
 
 (d) Harvey v. Smith, 1 K. & J. 394; (m) Finch v. Shaw, 5 H. L. C. 928. 
 22 Bea. 299. (") Espin v. Pemberton, 3 D. G. J. 
 
 (e) A. v. S. 547; Hiern v. Mill, 13 Vez. 122; Max- 
 
 (f) H. v. P.; sd. A. v. A well v. Burton, L. R. 17 Eq. 15, Tyler 
 {g) Popham v. Baldwin, 2 Jones 320, v. Webb, 6 Bea 552 ; Whitbread v. Tor- 
 ched Madden, 217. dan, (1st branch), 1 Y. & C 303. 
 
 (h) Miles v.Langley, 3 Russ. & M. 626. (o) W.y.J., (2d. br), 1 Y. & C. 303. 
 (i) Hipkins v. Antery, 2 Giff. 292; (p) E v. P ; H. v. M ; M. v. B. 
 
 Hopgood v. Ernest, 3 D. G. J. S. 1 16; (v) T. v. W ; W. v. /., (1st br.) 57
 
 450 
 
 WHAT CONSTITUTES NOTICE. 
 
 ascertaining who has the deeds; nor if the custodian of the 
 deeds was (to the disponee's knowledge) entitled to the 
 custody of them on independent grounds (a) ; nor does the 
 neglect of it affect the disponee with notice of a fraud 
 committed by the party from whom the inquiry would have 
 been made (b). 
 
 The fourth precaution is Scrutiny of the Title-Deeds to 
 ascertain whether anything suggestive of fraud is on any of 
 them (c) (i). 
 
 The fifth precaution is Investigation of all documents 
 through which title (d) is traced. Neglect of this is notice 
 Title is traced. f the existence and contents of these documents (e), and 
 of all interests conferred by them (e), arising by operation 
 of law from them (/), or mentioned in them (g). This 
 doctrine extends to documents earlier than the date at 
 which the purchaser can, by contract (f) or perhaps by law 
 (h), require the abstract to commence; and earlier than the 
 last renewal of a lease under which the property is held (i), 
 if the fact that the last lease is a renewal be known, or 
 appear on it or on an earlier lease to which a chain of 
 recitals leads up (i) (n) ; and to documents forming part of 
 
 Scrutiny of the 
 Deeds. 
 
 Investigation 
 of documents 
 through which 
 
 (i) The omission of "or order and assigns" in a Bill of Lading is not con- 
 structive notice of all equities affecting the consignee (j). 
 
 (n) The fact that a Leaseholder obtains a Renewal from a different person 
 from him who granted the lease affects the leaseholder with notice of the ca- 
 pacity in which that person grants the renewal, — as, that he granted it as 
 trustee lor a Charity (i). But this seems to be on the ground of evidence of 
 knowledge. 
 
 (a) Ex. Hardy, 2 Dea. & Ch. 393; 
 Bozon v. Wilbams, 3 Y. & J. 150. 
 (6) Hipkins v. Amery, 2 Giff. 301-2. 
 
 (c) Kennedy y.Green, 3 M. & K. 721, 
 722. 
 
 (d) Extended, Mertins v. Jolliffe, I 
 Amh. 313 /. 4. 
 
 (e) Clements v Wells, L. R. 1 l'q. 200; 
 Coppin v. Fernyhough, 2 B. C. C. 291; 
 Davies v. Thomas, 2 Y. & C. 234; Dra- 
 pers' Co. v. Yardley, 2 Vern. 662; 
 Fielden v. Slater, L. R. 7 Eq. 523; 
 IJ'irlgkinson v. Cooper, 9 Bea. 304; Jack- 
 son v. Howe, 2 S. & St. 472, approved 
 1 Ph. 254; Malpas v. Ackland, 3 Russ. 
 273: Mertins v. Jolliffe, I Amh. 311; 
 
 Parker v. White, 1 H. & M. 167; Steel- 
 man v. Poole, 6 Hare 193; Wilson v. 
 Harte, L. R. 1 Ch.463; Worthington v. 
 Morgan, 1 6 Sim. 547 ; and see Bisco v. 
 Banbury, 1 Ch. Ca. 289. 
 
 (/) Peto v. Hammond, 30 Bea. 495. 
 
 (g) Hamilton v. Royse, (Ireland, but 
 whether registered does not appear), 2 
 S. & L. 327. 
 
 (h) This did not occur in any of the 
 cases, nor is there any dictum on the 
 point. 
 
 (») C. v. F. ; H.v. C. 
 
 (j) Henderson v. C. d'E. d. Paris, L. 
 R. 5 P. C. 253. 
 
 (Jb) Att.-Gen. v. Hall, 16 Bea. 388.
 
 WHAT CONSTITUTES NOTICE. 451 
 
 the title of a landlord under whom the property is held, 
 whether by lease {a), or from year to year (b), except 
 perhaps since 1874 (c). And it holds though the rival interest 
 was merely that of a Covenantee (d), and though the 
 covenant did not purport to bind assigns (d), at least if it 
 concerned the use of the premises held under a lease in 
 which the covenant was contained (c); and though the 
 transaction was one in which investigation of title is not 
 usual, as, a Lease (f), Underlease (g), Letting (/;), or 
 Marriage Settlement (i) (i). And the rule especially applies 
 when the rival interest is that of a Landlord under the 
 Covenants in a Lease (j). But it is confined to such 
 documents as are necessary links in the chain of title (k), 
 and therefore does not extend to those without which title 
 can be really (/), or seemingly (m), deduced, unless the 
 purchaser be negligent ; nor does it extend to a Power of 
 Attorney under which the vendor acts (n) ; and it has been 
 said (0) to be inapplicable when the reason for the omission 
 was the small value of the property and the notoriety of the 
 title, (a position difficult to reconcile with some of the 
 authorities cited {p))> Neglect of this precaution as regards 
 one part of the property is not notice of what would, by 
 
 (1) This is consistent with an earlier decision (q) that one who derived under 
 a Settlement was unaffected by a previous disposition, for that disposition was 
 not a link in the title; — and with a later decision (r) that a mortgagee was un-. 
 affected by a deposit of some of the deeds under which the mortgagor claimed, 
 for the mortgagee had acquired the beneficial (though not the legal) estate 
 before the deposit was made. 
 
 («) C. v. 17.; F. v. S.- P. v. W ■ S. (j) As in C. v. W.; P. v. W. 
 v. P. \k) West v. Reicl, 2 Hare 261 /. 2-4. 
 
 (b) W. v. H. (1) Pilcher v. Rawlins, L. R. 7 Ch. 259. 
 
 (c) See 37-8 Vic, c. 78, s. 2 (I). (m) Sd P. v. 11. (p. 268-74); contra, 
 
 (d) F. v. S. ; IF. v. H. sd. P. v. K.,p. 265-7 and decided Car- 
 le) As in C. v. W.; F. v. S.; P. v. ter v. Carter, 3 K. & J. 617. 
 
 W. ; S. v. P. ; W. v. H. (») Perry v. Holl, 2 D.GF.J. 53-4. 
 
 (/) F. v. S ; with corroborative cir- (o) Sug. V. P. 780, par. 60. 
 
 cumstances M. v. A. ( p) Ante, (a, b), & p. 450 (</). 
 
 (g) C. v. W.; P. v. 17.; 5. v. P. {q) Whitfield v. Fausset, 1 Vez. 392. 
 
 (/») 17. v. H. (r) Ratchffe v. Barnard, L. R. 6 Ch. 
 
 (») J. v. R.; and, under corroborative 652. 
 circumstances, D. v. T.
 
 452 
 
 WHAT CONSTITUTES NOTICE. 
 
 Investigation 
 of other 
 documents 
 affecting the 
 property. 
 
 Inquiry -whe- 
 ther rival dis- 
 positions were 
 attended by 
 validating 
 circumstances. 
 
 Inquiry whe- 
 ther known 
 incumbrances- 
 are the only 
 ones. 
 
 Inquiry from 
 Incumbrancers 
 as to details. 
 
 Inquiry from 
 Trustees as to 
 trusts. 
 
 observing it, have been discovered respecting another 
 part (a). 
 
 The sixth precaution is the Investigation of any other 
 document known to affect the property; — neglect being 
 notice alike of its provisions (b), and of the facts mentioned 
 in it (c). But whether neglect to examine a Will known to 
 have been made by the owner of the property, but not 
 known to affect it, be notice of a provision therein by which 
 the property is affected, depends on circumstances (d). 
 
 The seventh precaution is Inquiry as to whether a rival 
 disposition was not attended by all circumstances necessary 
 to its validity and priority, as, whether it was made for 
 value (e). But neglect to inquire whether a draft has ever 
 been engrossed and executed is not (f) notice that it has 
 been so. 
 
 The eighth precaution is Inquiry, on a disposition of 
 property known to be incumbered, as to whether any other 
 incumbrances exist thah those known of (g), but inquiry 
 from the disponor seems sufficient (h). 
 
 The ninth precaution is Inquiry from all known incum- 
 brancers as to what incumbrances they hold, and whether 
 those whose existence is known have been correctly 
 described («').. 
 
 The tenth is Inquiry from anyone known to hold on trust 
 an interest in the property, as to the nature of the trust (j). 
 Neglect to do this seems to postpone the negligent party to 
 an extent not exceeding that of the legal estate or fiduciary 
 powers known to be in the trustee. 
 
 (a) Hunter v. Walters, L. R. 7 Ch. 83 ; 
 sd. Hamilton v. Royse, 2 S. & L. 327 
 /. 6-7. 
 
 (b) Ladbrook v. Lee, 4 D. G. S. 1 1 1, 
 112, 120-1; Hurst v. Hurst, 16 Bea. 
 373, 376; Authorities in Sug. V. P. 
 775 (e) and in Fish. Mor. 608 (*), in 
 which, however, the rival competitor 
 seems to "have been also in possession 
 and therefore entitled to priority under 
 the rule referred to above p. 488 (b). 
 See also Fish. Mor. 616 (e,/> [235. 
 
 (c) Eland v. Eland, (2d. point), 1 Bea. 
 
 (d) Sd. Jones v. Smith, 1 Hare 60-1. 
 
 (e) Ferrars v. Cherry, 2 Vern. 384. 
 See, as to notice of revocation under a 
 power, Banbury's Case, Free. Ch. 8. 
 
 (f) Gotham x. Sydenham, 2 B. C. C. 39 1. 
 
 (g) Jones v. Williams, 24 Bea. 56 ; Far- 
 row v. liees, 4 Bea. 18. 
 
 (h) See /.v. W.; and F.y. R. 
 
 (i) Taylor v. Baker, 5 Pri. 306, ap- 
 proved 1 Macn. & G- 150. 
 
 (j) Malpas v. Ackland, 3 Russ. 273; 
 JwmFree. Ch. 137.
 
 WHAT CONSTITUTES NOTICE, 
 
 453 
 
 The eleventh precaution is Inquiry from anyone known to 
 be presumptively entitled to a revocable benefit conferred 
 from motives of gratitude, as to whether he has not since 
 acquired corresponding or substitutionary rights under a 
 binding agreement (a). 
 
 The hvelth precaution is Inquiry from the parties to the 
 formal disposition under which one is acquiring the property 
 as to what their interests are (b). 
 
 The thirteenth is attention to any statement which may 
 appear on any Register which one searches (c), whether 
 the register be that of deeds (d), or judgments (e). But 
 this, on a search proved (f) to have been only from a certain 
 date, will be confined to matters appearing since that date 
 (g). And neglect to search a register is not notice of any- 
 thing appearing thereon (h), whether it be the Registry of 
 Deeds (*'), or of Judgments (j), or the Court-rolls of a 
 Manor (k), the Bankruptcy record (/), or the Gazette as to 
 Insolvencies (tit). And consequently a Mortgagor's pay- 
 ments to the Mortgagee are good against a transferee of 
 whose transfer, though registered, he had no notice (n). 
 
 The fourteenth precaution is Inquiry into the Customs of 
 
 (a) This seems to be the point estab- 
 lished in Penny v. Watts, 1 Macn. & G. 
 150, which, however, is disapproved in 
 Sug. V. P. 766 (y). 
 
 (6) Burgoyne v. Hatton, (1st case), 
 Barn. Ch. 236, (which compare with 
 the decision in Howarth v. Dean, 1 Eden 
 355, disapproved Fish. Mor. 610 (p). 
 
 (c) Fordev. White, 16 Bea, 124 /. 20- 
 4; Procter v. Cooper, 2 Drew. 1, 2 Jur. 
 N. S. 149. 
 
 (d) F. v. W., (Middlesex). 
 0) P. v. C. 
 
 (/) See F. v. W., p. 124 /. 20-1. 
 
 (g) Hugdson v. Dean, (2d. point), 2 S. 
 & St. 221. 
 
 (A) Buqden v. Bignold, (2d. point), 2 
 Y. & C. Ch. 377; Cator v.Cooley,2 Cox 
 182; Lane v. Jackson, (3d. point), 20 
 Bea. 535; Underwood v. Courtvwn, 1 S. 
 & L. 64; Williams v. Sorrell, 4 Vez. 389; 
 Wiseman v. Westland, 1 Y. & J. 117; 
 Wrightson v. Hudson, 2 Eq. Ab. 609, pi. 
 
 7 ; and authorities in Madden on Regis- 
 tration 230-5, esp. Busheil v. Busheil, 2 
 S. & L. in which several other author- 
 ities are cited at p. 100-1, and the doc- 
 trine is explained at p. 103. 
 
 (i) C. v. G. (Middlesex); U. v. C. 
 (Ireland) ; W. v. S. (Middlesex); IV. v. 
 W. (Hull); Authorities in Madden 
 (Ireland &c.) ; And see the reasons in 
 Busheil v. Busheil, and in Latouche v. 
 Dunsany, 1 S. & L. 1 57-9. 
 
 (j) L. v. /. ; IV. v. H. ; Authorities 
 in Sug. V. P. 761 (</). 
 
 (k)Bugdenv. B., p. 390 /. 2-16, over- 
 ruling I'earce v. Newlyn, 3 Madd 186. 
 
 (/) Hitchcox v. Sedgwick, Sug. V. P. 
 (11th Ed.), 1049, rvg. S. C 2 Vern. 
 156, Wilker v. Bodington, 2 Vern. 599; 
 And see, as to the Act of 1869, 32-3 
 Vic, c. 71, s. 94, 95, and, as to that 
 1849, 12-13 Vic, c 106, s. 133. 
 
 (m) Re Atkinson, 3 D. G. M. G. 140. 
 
 (») W. v. S> 
 
 Inquiry from 
 one presump- 
 tively entitled 
 to a Revocable 
 benefit. 
 
 Inquiry from 
 
 Conveying 
 
 parties. 
 
 Attention to 
 Register when 
 searching it. 
 
 Inquiry into 
 Local Customs.
 
 454 
 
 WHAT CONSTITUTES NOTICE. 
 
 Qualifications 
 of the rule. 
 Circumstances 
 under which 
 negligence is 
 not notice. 
 
 Consequences 
 of the above (e) 
 stated excep- 
 tion. 
 
 Representa- 
 tions &c. to 
 the contrary 
 prevent the 
 effect of 
 notice. 
 Examples: 
 Statement by 
 Occupier. 
 
 Excuse for 
 non-prod uc- 
 tioH of Deeds. 
 
 any Manor of which the property in question is held. At 
 least, one who contracted for a lease for 31 years was 
 compelled to accept one for 21 years with a covenant to 
 renew for the remaining 10 because the property was in a 
 manor by whose customs leases might not exceed 21 years 
 
 But neglect by a New Trustee to inquire of his prede- 
 cessor whether the latter knows of any disposition made by 
 the beneficiaries does not affect him with notice of an}' such 
 so as to postpone any beneficial interest which he may 
 afterwards acquire under them (b). And examination of a 
 box of deeds in one's possession is perhaps not always 
 required (c) ; nor does inquiry for the last receipt for a 
 yearly payment seem necessary (d). 
 
 The fads which are considered sufficient to found a 
 belief that no rival claim exists, and thus to exonerate a 
 disponee from constructive notice, consist chiefly in state- 
 ments by any persons likely to have rival claims, and, when 
 these cannot be discovered, by the disponor. 
 
 A statement by the Occupier, as to his own interest and 
 that of the landlord to whom he pays rent, exonerates from 
 liability for not observing the first precaution (f). And a 
 statement by the negotiator of a Bill of Exchange, that an 
 endorsement purporting to be that of his wife, who is 
 beneficially interested in it, is genuine, renders inquiry 
 from her unnecessary (g). 
 
 So a reasonable excuse for the non-production of a Title- 
 Deed (A), (as, that it, being a Marriage Settlement, does 
 
 (a) Wythe v. Henniker, 2 M. & K. 
 635 ; In Horlock v. Priest.'y, 2 Sim. 75, the 
 party who had the earlier disposition 
 has also the legal estate, and the only 
 question was whether he was to be post- 
 poned as having, by his negligence, 
 enabled the mortgagor to commit a 
 fraud. [90-1. 
 
 (b) Prosser v. Phipps, L. R. 16 Eq. 
 
 (c) See Ld. Portsmouth v. Effiwjham, 
 1 Vez. 435. 
 
 (d) See Alt. -Gen. v. Stephens, 6 D. G. 
 M. G. 14?. 
 
 (e) Ante, p. 443 /. 3,4. 
 
 (f) Sd. H anbury v. Lichfield, 2 M. & 
 K. 633, modified Bailey v. Richardson, 
 9 Hare 734. 
 
 (g) Dawson v. Prince, (3d. point), 2 
 D. G. J. 41. 
 
 (A) Agra Bk. v. Barry, L. R. 7 II. L. 
 147, 154-5; Espin v. Pemberton, (last 
 point), 3 D. G.J. 547; Hewitt v. Loose- 
 more, 9 Hare 449; Plumb v. Fluitt, 2 
 Ans. 432, 434 /. 8-10; Rutcliffe v. Bar- 
 nard, L. R. 6 Ch. 652.
 
 WHAT CONSTITUTES NOTICE. 
 
 455 
 
 not affect the property,) renders unnecessary the third, the 
 fourth, and (as to the excused deed) the fifth, precaution; 
 though such excuse be stated by the disponor himself only 
 (b). But the contrary has been held (c) when priority has 
 been claimed by force of the circumstances (d) appropriate 
 to a chose in action (e). 
 
 A Receipt for purchase-money renders unnecessary 
 inquiry as to whether the vendor's lien for it has been 
 satisfied (/), though the vendor be still in possession (g). 
 But this seems only to hold when the receipt is outside the 
 body of the deed (h), and not when the vendor retains the 
 purchase-deed (*'), and, of course, not between the vendor 
 and his immediate purchaser (j). 
 
 A Release of an incumbrance renders unnecessary inquiry 
 as to whether the relessor had not assigned it to another 
 before he made the release (k). 
 
 Again, acts of ownership respecting the Chattels of a 
 Deceased person, done by one who would be entitled to 
 them if the debts were paid, render unnecessary inquiry as 
 to whether they have been paid (/) (and thus entitle a 
 disponee who derives under that person and has for value 
 acquired the legal estate to hold against the creditors (/) 
 though he knows that debts once existed (/)). But this 
 seems only to hold when the acts of ownership have been 
 acquiesced in by the executor (/), and a reasonable period, 
 (as, three years,) has elapsed since the testator's death (/). 
 And employment of a proper Valuator renders unnecessary 
 
 (a) Jones v. Smith, 1 Ph. 244, com- 
 mented on 2 Hare 257-8. 
 
 (6) As in all these cases. But as to 
 statements by interested parties in other 
 cases see Broadbent v. Barlow, 7 Jur. 
 N. S. 178. 
 
 (c) Spencer v. Clarke, L. R. 9 C. D. 
 137. 
 
 (d) Explained, ante p. 433 (fin.)-436 
 {fin). 
 
 (e) Defined, ante, p. 3. 
 
 (f) White v. Wakefield 7 Sim. 401 ; 
 
 Rice v. Rice, 2 Drew. 73. 
 
 (sO W. v. w. 
 
 (A) As in W. v. W., and in R. v. R. 
 See also Sug. V. P. 776 (l,m). 
 
 (i) Peto v. Hammond, 30 Bea. 495. 
 
 (j) Wilson v. Keating, 4 D. G. J. 588. 
 
 (k) Greenwoody. Churchill, 6 Bea. 3 14. 
 
 (/) Spackman v. Timbrell, (2d. case), 
 8 Sim. 260 ; Dilkes v. Broadmead, 2 D. 
 G. F. J. 566; see also Scble v. Brtlt, 
 24 Bea. 501. 
 
 Receipt for 
 purchase- 
 money. 
 
 Release of 
 Incumbrances. 
 
 Acts of Owner- 
 ship over 
 incumbered 
 property. 
 
 Employment 
 of Valuator.
 
 ■456 
 
 WHAT CONSTITUTES NOTICE. 
 
 Inaccurate 
 description. 
 
 Qualifications 
 of this excep- 
 tion. 
 
 Omission to 
 inquire from 
 one known to 
 be interested. 
 
 Release of a 
 nature ordinar- 
 ily conditional. 
 
 Termination 
 not non- 
 existence of 
 rival interest 
 represented. 
 
 inquiry by a purchaser from trustees of part and beneficial 
 owners of the rest of a property, as to whether the 
 proportion of purchase-money which each was to receive 
 has been fairly ascertained (a). 
 
 An inaccurate statement of a disposition seems to render 
 inquiry after it unnecessary so far as the claims of the 
 person who makes the inaccurate statement are concerned 
 (b), but not as to the claims of others (c). 
 
 But the statement of an interested party is not sufficient 
 when the person in whom the rival interest (if any) would 
 reside is known; and consequently, a statement by a 
 Judgment-debtor that the amount owing on the judgment 
 has been paid (d), or that of a Mortgage-debtor that 
 insurances which he is effecting for the disponee, are not 
 effected for the benefit also of the mortgagee (e), do net 
 obviate the necessity of inquiring from the creditor, at least 
 if such debtor be himself the disponor (/). 
 
 And again, such a Release as is ordinarily subject to a 
 secret condition does not seem to exonerate from a claim 
 founded on breach of such a condition. At least, a warrant 
 to enter satisfaction on a Judgment does not obviate the 
 necessity of inquiry as to whether it was to be satisfied 
 conditionally, and consequently does not exempt from 
 notice of an agreement that it was only to be satisfied con- 
 ditionally on the substitution of another judgment (g). And 
 a disponee of a Reversionary interest is not exonerated from 
 a preceding beneficial one by evidence that it has termin- 
 ated, as he would be by evidence that it had never existed 
 (h). Nor is a disponee of property which was liable to be 
 redeemed exonerated from this liability by evidence that 
 
 (a) Sd. Cooper If Allen's Contract, L. 
 R. 4 C. D. 815-16, 818. 
 
 (b) Bright 's Trusts, 20 Jur 301. 
 
 (c) Hope v. Liddell, 21 Bea 198/m; 
 Cosser v Colligne, 3 M. & K. 283; Crof- 
 ton v. Ormsby, S. & L. 183; Patersonv. 
 Long, 6 Bea. 590. 
 
 (rf) Montefiore v. Browne, 7 H. L. 241. 
 («) Ladbrooke v. Lee, 4 D. G. 8. 1 1 1-2. 
 
 (f) L v. L.;M.v.B. 
 
 (g) Montefiore v. Browne, 
 
 (h) Kelsall v. Bennett, 1 Atk 522; 
 Contra as to an Annuity, Stephenson v. 
 Royce, 5 Ir. Ch. 401.
 
 WHAT CONSTITUTES NOTICE. 457 
 
 the right to redeem has become unenforcible (a). And 
 much less is a purchaser &c. of property which is subject 
 to a Post-nuptial Settlement exonerated from that settle- 
 ment by the fact that it contains no statement that it was 
 made, (as it was,) for value (b). 
 
 («) Hansard v. Hardy, 18 Vez. 462. (b) Ftrrars v. Cherry, 2 Vern. 384. 
 
 58
 
 ( 458 ) 
 
 CHAPTER LIIL 
 
 IMPUTATIVE NOTICE. 
 
 Reason of the From the maxim "qui sentit commodum sentire debet et' onus" 
 (a) (i) our courts deduce the consequence (3) that a principal 
 is responsible for his agent's fraud (c); and from this again 
 the rule that Notice possessed by an Agent is imputed to 
 his principal (d) (n), alike for the purpose of preventing; 
 the acquisition of priority through the Legal estate (e), 
 
 (i) The principle of the rule is also explained in the cases cited in n. (f), and, 
 on some minor points, in those cited in n. (g). 
 
 (n) The Knowledge of the principal is not imputed to the agent (A), nor, there- 
 fore, does the fact that the disponor and disponee have the same agent occasion 
 the imputation of the knowledge of the former to the latter (i). 
 
 Rule. 
 
 Rule. 
 
 Applicability 
 of the Hule. 
 To what 
 transactions. 
 
 (a) Le Neve v. Le Neve, 2 White and 
 Tudor's Leading Cases (4th Ed.), 45 
 /. 31-3. 
 
 (b) Discussed ante, p. 286 {h-o), 289 
 (o)-290 (b), qualified in 288 (c), and 
 290 (i). 
 
 (c) Bourwt v. Savage, (Lt) L. R 2 
 Eq. 142 /. 20-2. 
 
 (d) Ashley v. Bailey,2Vez. 368, 370; 
 Atlerbury v. Wallis, 8 D. G. M. G. 454; 
 Blenkarne v. Jennens, 2 B. P. C. 278; 
 Boursot v. Savage, L. R. 2 Eq. 134; 
 Bradley v. Riches, (2d. point), L. R. 9 
 C. D. 189; Coltinsonv. Lister, 20 Beai 
 256; Covte v. Mammon, (in which how- 
 ever the party who had notice was 
 really the principal though he pur- 
 chased in another's name), 5 B. P. C. 
 355; Downes v. Power, 2 Ba. and B. 
 491; Dryden v. Frost, 3 M. & C. 670; 
 Sd. Espin v. Pemberlon, 3 D. G. J. 555; 
 Forbes v. Deniston, 4 B. P. C. 189 ; Ful- 
 ler v. Bennett, (a Leading case), 2 Hare 
 402; Gale v. Lewis, 9 Q B. 730; Ger- 
 ard v. O'Reilly, 3 Dr. & War. 414; 
 hat greaves x. Rothwell, 1 Ke. 154; Hop- 
 good v. Ernest, 3 D. G. J. S. 61 1 ; Ken- 
 nedy v. Green, (2d. point), 3 M. & K. 
 120; La Neve v. Le Neve. 2 W. T. L. 
 
 C. 55; Maddox v. Maddox, 1 Vez. 61; 
 Marjoribanks v. Hovenden, Dru. 11>; 
 Merry v. Abney, 1 Ch. Ca. 38; Norris v. 
 Le Neve, 3 Atk. 36; Holland v. Harte, 
 L. R. 6 Ch. 678; Sheldon v. Cox. 2 Ed. 
 228; sd. Saffron-Walden Sj-c. v. Rayner, 
 L. R. 14 C. D. 410, I. 28-9; Spaig'ht v. 
 Cowne, 1 H. & M. 359; Toulmin v.Steere t 
 3 Mer. 210; Travis v. Milne, 9 Hare 
 152; Warwick v. Wanoict, 3 Atk. 293 \ 
 Winter v. Anson, 3 Russ.493; R. Wor- 
 cester C. E Co, 3 D. G. M. G. 187, /. 
 9-10. 
 
 (e) Explained, ante, 375. The rule- 
 respectmg its priority is explained in 
 pp. 375-9, and is stated with its excep- 
 tions &c. in Cfu XLVII, and the for- 
 malities necessary for it in Ch. L. 
 
 (f) B. v. S. (p. 142); D. v. P. (p. 
 499); E.v. P. (p. 545-5); W. v. S. (p. 
 392). 
 
 (g) Powell on Mortgages, (6th Ed.)^ 
 558; Fisher on Mortgages, (2d. Ed.), 
 604 («, x). 
 
 (h) Re Colemere, (which, however, 
 does not go to the full extent of the- 
 proposition above,) L. R. 1 Ch. 133. 
 
 («) Lane v. Jackson, 20 Bea. 535k
 
 IMPUTATIVE NOTICE. 459 
 
 (whether in tenements (a), corporeal chattels (b), funds (c), 
 or negotiable securities (d)); through equivalent (e) circum- 
 stances (as regards other choses in action (/)); or through 
 Registration under the Irish (g) or County (h). Registry 
 acts: for that of establishing that the holder of a chose in 
 action has notice of a transfer of it (»): for that of taking 
 a chose in action (i) out of the Order and Disposition of a 
 Bankrupt (j): and for that of implying terms in a Contract 
 (k). And this rule holds good whether the agent be strictly In other 
 such {I), or be Counsel (■/«), Solicitor («), his agent (o), or clerk 
 (p), Partner (q), Secretary (r), Manager (s), or Trustee (2!) ; 
 and though he acquired the information in a different 
 capacity from that in which he was agent &c. («); and 
 though he did not communicate it to his principal (v) ; and 
 though the agency (being created by ratification) was 
 subsequent to the transaction notice of which was imputed 
 (w); and though (when the rule is applied to preclude a 
 disposition from priority) that disposition was made under 
 the Court (x), and to an Infant (x) ; and though the agent 
 in question had been recommended by the disponor (y) ; 
 
 (1) Trade-debts are the only kind of chose in action to which the 0. and D. 
 olause now applies (z). 
 
 (a) A. v. B.; A. v. W.; B. v. /.; B. v. D. ■ M. v. M. 
 ▼. S.; D. v. F; Fu v. B.; H. V. R.; (m) Sk. V. C. 
 
 Ho. v. E.;K.y.G; M. v. A/.; Me. v. (n) A. v. W.: B. v. S.; Br.v.R.; D. 
 
 A.; Sp. v. C.j T. v. S.; W. v. A. v. F. (in which Mart acted as Solici- 
 
 (b) C. v. L. tor though really only a clerk) ; E. v. 
 
 (c) T. v. M. P.- Fu. v. B.; H. v. R.; Ho. v. E.\ K. 
 
 (d) D. v. P. v. e.; L. N. v. L. N:-, M. y. H.;R. r. 
 
 (e) Explained ante, pp. 378-9. The H.; Sp. v. C; T. v. S.;W.v. A. 
 rule is stated with its exceptions in Ch. (o) ,V. v. L. N. 
 
 XLVII, and the nature of the circum- (p) See D. v. F. 
 
 stances in Ch. L. (9) T. v. M.- W. C. E. C. 
 
 (f) Defined ante, p. 3. (r) G. v. L. 
 
 (g) F. v. D., G. v. O'R. ; M. v. H. (s) C. v. L. (p. 357). 
 
 (A) Br. v. R.; E. v. P.; L. N. v. L. (t) C. v. M. (but see p. 458(«)); M*. 
 
 N. ; R. v. H. ; SA. v. C. v. A. ; fy. v. C. 
 
 (i) Authorities in Lewin on Trusts («) G. v. L. 
 
 (5th Ed ), 504 (/) . 505 (b,c,d,g) ; and in (v) B. v. R. (p. 196, in.). 
 
 Fish. Mor. par. 1117; sd. S.-W. v. R.; (w) B. v. /.; C. v. i»/.; A/e. v. .4.; 
 
 Involved in the principle of G. v. L. Sp. v. C. 
 
 (j) G. v. L. For explanation of {x) T. v. S. 
 
 Order and Disposition see Ch. LVII. (y) L. S. v. L. N. 
 
 (k) W. C. E. C. (*) 32-3 Vic, c. 71 (E.),s. lb (5 fin.); 
 
 </) 4. v. B.; B. v. /.; JD. v. P.; F. 20-1 Vic, c. 60, s. 313.
 
 460 
 
 IMPUTATIVE NOTICE. 
 
 Conditions of 
 the Rule. 
 Communi- 
 cation of 
 Notice. 
 
 Nature of 
 the Notice. 
 
 Nature of the 
 Agency. 
 
 Time of 
 Notice. 
 
 and though he was also the agent for the disponor (a) ; and 
 though he was himself the disponor (b), while the rival 
 claim was a trust (c) or executorship (d) by which he was 
 bound, or- was derived under a disposition for value from 
 him (e), and he had acquired the notice in connection with 
 such prior transaction, and is merely presumed to have 
 recollected it in the transaction in question (/); and, (it 
 seems,) though he had an interest (independently of the 
 above facts) in concealing the rival claim (g); and (in 
 general (h)) though the notice (when used to prevent the 
 acquisition of priority) was but Constructive (*). But it 
 only applies if there is either a probability that the agent 
 communicated with the principal, or a necessity on public 
 grounds that the latter should suffer the loss (/) ; and only 
 if the notice (when used to displace (in certain cases) pri- 
 ority (£)), or to establish that the holder of a chose in action 
 has notice of its transfer (/), or to affect a principal with 
 fraud (m),) was actual knowledge; and only if the agency 
 (n) or trusteeship (o) required the exercise of discretion ; 
 and only if the notice either was recollected (p) (i) in the 
 same transaction in which it was imputed, or was acquired 
 in that transaction (q), or in one so connected with 
 
 (i) The recollection must be strictly proved (r), unless in cases falling under 
 notes (5) in this, or (a) or (b) in next, page. 
 
 [a) F. v. D.; Fu. v. B.;H.v. E 
 
 N. v. L. N. ; But see below, 462 (c). 
 
 (6) Cases in the three next notes. 
 
 (c) B. v. S. 
 
 \d) C. v. L ; D. v. P. 
 
 (c) A. v. W.; B. v. S.; Br.v.R.; 
 D v. F. ; F. v. D. ; R. v. H. ; Sh. v. C. 
 
 (/) Authorities in the three preced- 
 ing notes. And see below, where I 
 state the conditions of the rule. 
 
 (</) Br. v. R. 
 
 (h) For exceptions see ante, p. 419 
 (k,l), 420 (a,b,c). 
 
 (i) H. v. E., (2d. point); K. v. G., 
 (2d. point); M. v. M. For definition 
 of "Constructive Notice" see ante, p. 
 461 (1), and Ch. LII. 
 
 (J) Sd. in effect by Ld. Brougham 
 in K. v. G., p. 719 /. 9-19. 
 
 (*) A «/e,p. 407 (</,c^);413(j),419-20. 
 
 (/) Ante, p. 433 (»). 
 
 (ro) Wilde v. Gibson, 1 H. L. 60S. 
 
 (») Wyllie v. Pollen, 32 L. J. Ch. 782. 
 
 (o) Re Burmester, 7 Ir. Ch. 41; Re 
 Lant, 5 Ir. Jur. N. S. 32. 
 
 (p) Necessary, see Tylee v. Webb, 6 
 Bea. 556. Sufficient, A. v. B.; H. v. 
 R.; G.v. O'R.; L. N. v. L. N. 
 
 (q) Necessary, Banco d. Lima v. 
 Anglo- Peruvian Bk., L. R. 8 C. D. 160; 
 Fitzgerald v. Fauconberge, Fitz. 213, 
 explained by 21 1 ; Hine v. Dodd, 2 Atk. 
 275; Lloyd v. Attwood, (last point), 3 
 D. G. J. 614; sd. Lowther v. Carleton, 
 2 Atk. 242, explained in Worseley v. 
 Scarborough, (4th point), 3 Atk. 392; 
 Warrick v. Warrick, 3 Atk. 294. 
 
 (r) Tylee v. Webb, 6 Bea. 552.
 
 IMPUTATIVE NOTICE. 
 
 461 
 
 it (a), or so recently (i) preceding it (b), as to imply such 
 recollection; and only if (in the latter case) the person 
 through whose agency it was imputed is in the present, 
 and was in such previous, transaction, the agent of 
 the disponor also (c), or himself the disponor (d), and 
 acquired his notice in that capacity (e), — circumstances 
 which are alike necessary whether he be strictly agent 
 (/), or be counsel (g), solicitor (h), solicitor's clerk (i), 
 manager (j), or otherwise; but under which notice will not 
 be the less imputed though the present disponor be but 
 the successor in title of him who created the rival claim (k), 
 (whether priority be claimed (k) by force of the legal estate 
 (/) or under the register acts (m)), and will be especially 
 imputed if the agent was trying in the previous (n) or in the 
 later (o) transaction to defraud the rival claimant. 
 
 But knowledge of the agent's wrongful act (p) ; or of an Exceptions to 
 interest derived under it (q); or of a claim which the agent, 
 by arrangement with the disponor, concealed (r) ; or which 
 he, by throwing his principal off his guard, tried to prevent 
 him from suspecting (V) ; is not imputed; unless (at least 
 in the first case It) ) the agent have constructive as well as 
 
 the Rule. 
 
 (i) Two years is too long («) . 
 
 (a) Sd. H. v. R. (p. 159). 
 (6) W. v. A., (expld. by 1 Sim. & 
 St. 435-6). 
 
 (c) Necessary, Fu. v. B. (p. 405); G. 
 v. L. ; M- v. M. 
 
 (d) Sufficient, B.v. S.;D. v. F.; M. 
 v.H.;Sh. v. C; W. v. W. 
 
 (c) Authorities in notes 461 (c, d). 
 
 (f)H. v. D.j sd. W. v S. 
 
 (g) H. v. D. ■ F. v. F. ; sd. IF. v. S. 
 
 (A) B. v. S.; D. v. F.; Fu. v. B.; H. 
 v. R.; L. v. A.; L. N. v. L. N.; Lo. v. 
 C; M. v. H.\ Sh. v. C, W. v. A.; W. 
 v. W. 
 
 (i) As in T. v. W. 
 
 (/) B. d. L. v. A. -P. B. 
 
 (Jt) As in the two next notes. 
 
 (/) As in 4. v. B.; B. v. S.; D.v.F.- 
 Fu. v.B.; W. v. A. (p. 493 fin.) • W. v. 
 W. 
 
 (m) As in L N. v. L. N.-Sh.y. C. 
 
 (») Lenehan v. Mc. Cabe, 3 Ir. Eq. 
 342. 
 
 (o) L. N. v. L. N. 
 
 (p) K. v. G. (p. 720). 
 
 (g) Cave v Cave, L. R. 15 C. D. 639; 
 Waldy v. Graii, L. R. 20 Eq. 238, sd. 
 K. v. G. (p. 720); sd. (as to agency by 
 means of Partnership) Williamson v. 
 Barbour, L. R. 9 C. D. 535-6; and see 
 Lacey v. Bill, L. R. 4 C. D. 549, qual- 
 ified in A. r. W. and in C. v. L. 
 
 (r) Sharpe v. Foy, L. R. 4 Ch. 12, 6 
 Ch. 35 ; Thomson v. Cartwrighl, 2 D. G. 
 J. S. 10. 
 
 («) Hewitt v. Loosemore, 9 Hare 455, 
 451. 
 
 (<) Ante, notes (p, g). 
 
 (ii) Tylee v. Webb, 6 Bea. 552.
 
 agent. 
 
 462 IMPUTATIVE NOTICE. 
 
 actual notice (a); and, of course, knowledge of an agent 
 through whom his principal has acquired an interest 
 admittedly paramount to the rival interest, does not post- 
 pone a subsequent interest which the principal afterwards, 
 and independently of the agent, derives in the same 
 property (b) ; and the knowledge which the agent of a firm 
 has of a fraud which one partner has committed against the 
 other is not imputed to the latter (c) ; nor is the knowledge 
 which the agent of the holder of a fund has of a disposition 
 which he makes of an interest which he has in it imputed 
 to his principal (d), though the knowledge which he has of 
 a disposition which he negotiates as solicitor is (<?). 
 Who is deemed A Partner is, within this rule, the agent of his co-partners 
 (/), unless the partnership consists in holding shares in a 
 joint-stock Company (g). A Solicitor is, of course, agent 
 for his client in a transaction which he negotiates (h), but 
 the fact that the holder of a fund is also one of his clients 
 does not make him agent to receive notice of dealings with 
 that fund (i). One who purchases in the name of another 
 is his agent in the purchase within this rule (J). 
 
 Finally, the courts presume that a disponee who employs 
 no solicitor for himself, constitutes, as his agent, the 
 solicitor of the disponor, — a presumption which, though 
 not irrebuttable (k), is practically nearly so (/) when the 
 transaction is one in which a solicitor for the disponee 
 would ordinarily be employed, unless the disponee be 
 himself a competent lawyer (m). 
 
 (a) K. v. G. (p. 722-3). For defini- 805-6. 
 tion of the kinds of notice see ante, p. (h) Authorities ante, p. 449 (n), quali- 
 
 ■416 and Ch. LII passim. fled by those in p. 460 (n-g). 
 
 (6) Wyllie v. Pollen, 32 L. J. Ch. 782. (») S. W. v. R. 
 
 (c) Lacey v. Hill, L. R. 4 C. D. esp. (j) Authorities ante, p. 459, (to). 
 549. (*) E. v. P. {p. 554-5); Perry v. 
 
 (d) Boulton r. Sketchley, I D. G. J. Holl. 2 D. G. F. J. 53; Rorke, 14 Ir. 
 163; re Hennesy, 2 Dr. & War. 555. Ch. 442. 
 
 (both decided as to Order and Disposi- (/) A . v. W. ; Hewitt v. Loosemore, 9 
 
 tion, for explanation of which see below, Ha. 454; K. v. G. (p. 712), (which, 
 
 Ch. LVIII). however, is, perhaps, overruled by B. 
 
 (e) G. v. L. v. P.; P. v. //.; and It.) 
 
 (f) T. v. Af.; W. C. E. C. (m) Sd. E. v. P. 4 Drew. 337 /. 3-8, 
 {g) Authorities in Fish. Mor. 606 (m- 3 D. G. J. 555 /. 5-7. 
 
 o) ; and in 2 W. T. L. C. (4th Ed.).
 
 (463 ) 
 
 CHAPTER LIV. 
 
 PRIORITY OVER JUDGMENTS, ANNUITIES, AND DISENTAILMENTS. 
 
 A Purchaser (a) for value of, or Incumbrancer (i) upon, Judgments 
 an hereditament, is entitled (b) to priority over a Judgment 
 &c. (c), though aware of it (d), and deriving under a pre- 
 vious purchaser who acquired the property within 5 years 
 after a memorandum of it was registered (e) ; unless such 
 a memorandum was left for Registration (/) or re-registra- 
 tion (g) within 5 years (h) before the purchase &c. in ques- 
 tion. And a Purchaser or Mortgagee is entitled to priority 
 over a Judgment &c. entered since the 23rd July, i860 (/), 
 though aware of it (i), and though it was so registered &c. 
 (»'), unless (/) execution has (i), (before conveyance (/) and 
 payment of the purchase or mortgage-money,) been issued, 
 and, (before or after its return (k),) been registered (/), and, 
 
 (i) The words in the act are " Mortgagees and Creditors," but " Incum- 
 brancers" is meant (o), and Trustees for Creditors are included (p). 
 
 (a) As to the sense in which this 18-19 Vic, c. 15, s. 4, 5. 
 word is used, see, Lee v. Green, 6 D. (e) Benham v.Keane, 1 J. & H. 685. 
 
 G. M. G. 168, re Browne, 13 Ir. Ch. (f) 1-2 Vic, c. 110 (E.), s. 19, 3. 
 
 283. (Palatinates) 21; 2-3 Vic, c 11 ( E.), 
 
 (6) 2-3 Vic, c 11 (E.), s. 4; 7-8 s. 2, 3; 3-4 Vic, c 105 (I.), s. 28; 7-8 
 
 Vic, c 90 (I.), s. 2, 3; 3-4 Vic, c 105 Vic, c 90 (I.), s. 2, 3. 
 (I.), s. 28. (g) 2-3 Vic, c 11 (E.), s. 2, 4; 18- 
 
 (c) As to what is included under this 19 Vic, c. 15 (Palatinates), s. 3; 7-8 
 term, see, 1-2 Vic, c 1 1 (Decrees and Vic, c 90 (I.), s. 3, 4, and see s. 7. 
 Orders, E.),s. 18; 23-4 Vic, c.38 (same, (A) 2-3 Vic, c 11, s. 4; 18-19 Vic r 
 E. s. 3 fin.), s. 5; 18-19 Vic, c. 15 c 15 (Palatinates), s. 3; interpreted 
 (same, E.), s. 7; 27-8 Vic, c 112, s. 2; by Shaw v. Neale. 6 H. L. 581, by liea- 
 3-4 Vic, c 105 (same, I.), s. 27; 12-13 van v. Oxford, 6 D. G. M. G. 492, and 
 Vic, c. 95 (same, I.), s. 7; 1-2 Vic , c. by 18-19 Vic, c 15, s. 6. 
 
 11 (Judgments of Inferior Courts), s. (t) 23-4 Vic, c 38, s. 1. 
 
 22; 3-4 Vic, c 105 (same, I.), s. 30; (j) Whether registration after pay- 
 
 12-13 Vic, c 104 (same, I.), s. 17, 18; ment but before Conveyance would do 
 
 30-1 Vic, c 114 (same, I.); 30-1 Vic, does not seem clear. 
 
 c. 129 (same, I.), s. 47-9; 18-19 Vic, (Jb) Chompneys v. Burland, 23 L. T. 
 
 C. 15 (same, E.), s.7; 12-13 Vic, c 95 584. 
 
 (same, I.), s. 8; 18-19 Vic, c 15 (Pal- (/) As to Mode of Registration, s. 2. 
 
 atine Courts), s. 1, 2, 3; 31-2 Vic, c. (m) Simpsonv. Morley, i K. & J. 71; 
 
 54 (Judgment in different part of the sd. Greaves v. Tofield, L. R. 14 C. D-. 
 
 U.K.) esp. 574, /. 21-37. 
 
 (d) 3-4 Vic, c. 82, s. 2, amended by (n) Lee v. Green, 6 D. G. M. G. 166.
 
 464 PRIORITY OVER JUDGMENTS, ANNUITIES, &C. 
 
 (within three months after registration,) been put in force 
 (a). These enactments are now of minor importance, 
 because a Judgment &c. (b) entered since 29th July, 1864, 
 does not (c) affect property, until delivered in Execution 
 either by return of the writ (d) or by equitable process (e). 
 Still, the writs of execution are to be registered (/). These 
 enactments do not extend to Crown-judgments, nor 
 (generally) to judgments in Ireland for under £150 (g), nor 
 to Judgments recovered in Ireland since 15th July, 1850 
 (h). Again, a Purchaser for value or Incumbrancer is 
 entitled (i) to priority over the increased rights conferred 
 on Judgment-creditors by the recent statute (_/'), and there- 
 fore over their rights against Copyholds (k), against (in 
 certain cases) estates for years (I), and against property 
 over which the debtor had merely a disposing Power (in) 
 (11); unless the purchaser &c. had notice of the judgment 
 (n), and it was registered before the purchase &c. (0). And 
 purchasers &c. of hereditaments in Ireland are exempt 
 from judgments recovered since 15th July, 1850 (p), unless 
 registered as Judgment-Mortgages (p). And Purchasers 
 &c. of lands there w T hich the .debtor acquired for value 
 since that day are entitled to priority over judgments of 
 whatever date unless so registered (q). And a Purchaser 
 or Mortgagee of hereditaments in England, completing 
 
 (1) This does not extend to Crown-debts (r). 
 
 (a) 23-4 Vic, c. 33, s. 1. (Jfc) Sug. V. P. 537 pi. 41. 
 
 (b) Defined, 27-8 Vic., c. 1 12, s. 2. (/) Sug. V. P. 520 (p), 521 (6,c). 
 
 (c) Ante, p. 335 (d h). (m) Sug. V. P. 521 (x,y, x). 
 
 id) Champneysy. Burland. 23L.T. 584. (»«) See 2-3 Vic, c 11 (E.), s. 5; 
 
 («) See authorities cited, <m(e, 335(d), 18-19 Vic, c 15 (Palatinates), s. 3; 7- 
 
 and Addenda. 8 Vic , c 90 (I.), s. 8; Westbrooke v. 
 
 (f) 27-8 Vic, c 112, s. 3. Blythe, 3 E. & B. 737. 
 
 (g) 12-13 Vic, c 95. s. 2. (o) Lee. v. Green, (E.), 6 D. G. M. G. 
 (A) 13-14 Vic, c 29, s. 1. 168; Dunster v. Glengall, (I.), 3 Ir. Ch. 
 («) 2-3 Vic, c. 1 1 (E.), s. 5; 7-8 Vic, 47. 
 
 c. 90 (I.),s. 8. (p) 13-14 Vic, c. 29, s. I fin.; As to 
 
 (j) 1-2 Vic, c 110 (E ), s. 11, 13, the nature of Judgment-Mortgages, see 
 
 (restricted by s. 16-18); 3-4 Vic, c ante, p. 335 (i J). 
 
 105 (L), s. 19. 21, 22 (restricted by s. (9) 13-14 Vic, c 29, s. 3. 
 
 25), 27; Sug. V. P. (14th Ed.), 535-6, (r) Sug. V. P. 521 (a). 
 537-8.
 
 PRIORITY OVER JUDGMENTS, ANNUITIES, &C. 465 
 
 since 26th April, 1855, is entitled to priority over Judg- 
 ments &c. and Crown debts existing against a paid-off 
 mortgagee (a). And a Judgment against an Incumbrancer 
 on a tenement in Ireland does not operate against the 
 Incumbrancer's interest (b). And of course registration 
 cannot revive an extinct judgment (c), nor render unneces- 
 sary registration on a County Register (d). 
 
 A Purchaser (e) of or Incumbrancer (/) on an heredita- Crown-debts, 
 ment is entitled to priority over a Crown-debt arising since 
 4th June 1839 in England, or 9th Aug. 1844 in Ireland, 
 though (as to England) aware of it (g) ; unless a memorandum 
 was left for Registration (e) or re-registration (h) before (e) t 
 (and in case of a purchase &c. of hereditaments in England 
 since 1859 or in Ireland since 1871 within 5 years before (A),) 
 the purchase &c. ; and, (as regards tenements in England,) 
 even then, unless either the lien attached before 2nd Nov. 
 1865, or execution was (before conveyance and payment of 
 the purchase- or mortgage-money) issued and registered (i). 
 And a Purchaser of an hereditament in England is exempt 
 from a Recognizance of the vendor, unless enrolled (J). 
 And a purchaser from an Accountant to the Crown is dis- 
 charged by payment to the Crown (k), up to the amount 
 for which the accountant is liable (k). And provision for 
 entering up the discharge of Judgments and Crown-debts 
 has been made in the acts. 
 
 A Purchaser of (/) or Incumbrancer on {I) an heredita- Annuities, fico, 
 ment in England is entitled (/) to priority over a Rent- 
 charge or Annuity charged thereon, if created since 26th 
 
 (a) 18-19 Vic, c. 15, s. 11. Vic, c. 72 (I.), s. 11, 12; see also s. 10; 
 
 (6) 13-14 Vic, c. 29, s. 12. 11-12 Vic, c. 120 (I.), s. 13; And see, 
 
 (c) 2-3 Vic, c. 1 1 (E.), s. 6; 8-9 Vic, as to Crown-debts not registered, Lewin 
 c. 15 (E.), s. 8; 7-8 Vic, c 90(1.), ».9. on Trusts (5th Ed.), 573, /. 27-32. 
 
 (d) Ante, p. 408, esp. (j). (i) 28-9 Vic, c 104 (E.), s. 48. 
 
 (e) 2-3 Vic , c. 11 (E.), a. 8; 2-3 Vic, 0) 29 Cha. II, 0. 3 s. L8. 
 
 c. 35 (E.), s. 22-3; 7-8 Vic, 0. 90 (I.), (*) 29-30 Vic, c 39 (E.), s. 42; 7-8 
 
 s. 11, 12. Vic, c 90 (I ), s. 14, modified by s. 15. 
 
 (f) See ante, p. 463 d). (0 18-19 Vic, c 15, s. 12; and, as 
 
 (g) 22-3 Vic. c 35, s. 22. to the meaning of " Incumbrancer", see 
 (A) 22-3 Vic, c 35 (E.), s. 22; 34-5 ante, p. 463 (1). 
 
 39
 
 466 
 
 PRIORITY OVER JUDGMENTS, ANNUITIES, &C. 
 
 Judgments, 
 
 Crown-debts, 
 
 &c 
 
 Disentailing 
 deeds. 
 
 April 1855 (a) and terminable on a death (a), unless it was 
 created by Marriage Settlement (a), by Will (b), by Reser- 
 vation (a), or by a disposition of which a memorandum was 
 left for Registration before the purchase &c. (a); or the 
 purchaser had actual (c), or perhaps constructive (d), 
 Notice of it. 
 
 Purchasers of a tenement the title to which has been 
 placed on one of the Records explained in Ch. LV are 
 protected against Judgments, Crown-debts, &c, under the 
 circumstances there stated (e). 
 
 And, finally, a disponee for value (/) of an Estate-Tail 
 under a deed enrolled is entitled to priority over an earlier 
 disposition (g) made by the same disponor (h), unless such 
 disposition was first enrolled (g). 
 
 (a) 18 Vic, c. 15, s. 12; and, as to 
 the meaning of "Incumbrancer" see 
 ante, p. 463 (1). 
 
 (b) 18-19 Vic, c. 15, s. 14. 
 
 (c) Greaves v. Tofield, (a Leading 
 Case), L. R. 14 C. D. 563. 
 
 (d) See L. R. 14 C. D. 572, /. 1-8 /. 
 23, 575 /. 1, and esp. 578. 
 
 («) See esp. 28-9 Vic, c 88 (I.), s. 
 42. 
 
 (f) Value reconciles this with the 
 rule in p. 354 (/). 
 
 (g) 3-4 Wm. IV, c 74 (E ), s. 75; 
 4-5 Wm. IV, o. 92 (I.), s. 66. 
 
 (h) Pier's Estate, 14 Ir. Ch. 452.
 
 ( 467 ) 
 
 CHAPTER LV. 
 
 INDISPUTABLE TITLES. 
 
 Our law provides no means by which title can be com- Generally. 
 pletely freed from incumbrances and adverse claims except 
 in the instances already (a) mentioned, but it does provide 
 means by which an approach can be made to this result, 
 and these form the subject of the present chapter. 
 
 In Stock and Shares the Legal estate is always limited Stocks and 
 to one person, or to several as joint-tenants (b) (i), and Transfer of the 
 that for the perpetual interest (i). It is transferred by Le g al estate, 
 entry on books (c) kept for that purpose, or by a document 
 (d) which may be afterwards registered (e) ; but the holder 
 of Government (/) or Colonial (g) Stock may, if he prefer, 
 obtain a stock-certificate by insertion of a name in which 
 (h), or by delivery of which before a name has been 
 inserted (»), the stock becomes transferred, while the 
 transfer of the stock in any other way during the sub- 
 sistence of the certificate is prohibited (j) ; and the holder 
 of Stock or Shares in a Company can generally obtain (k) 
 a share-warrant, by delivery of which the shares can be 
 
 (i) The Government (/) and Colonial (m) Stock Acts, however, define 
 "Stock" so as to include any share or interest in stock, and then provide for 
 the transfer of the " Stock." 
 
 (a) Ante, p 73 (d), 381 (i), 382 (a, b). 
 
 (b) See 33-4 Vic , c. 7 1 (Govt. Stock) 
 s. 22 ; 40-1 Vic, c. 59 (Colonial Stock), 
 s. 4. For definition of " Joint-tenancy " 
 see ante, p. 33 (a). 
 
 (c) 33-4 Vic, c. 71 (Govt. Stock), s. 
 22. 
 
 (d) Lindley on Partnership (4th Ed.), 
 703-4. 
 
 («) Lindley, 139-43. 
 
 (/) 33-4 Vic, C. 71, s 26, sqq. 
 
 \g) 40-1 Vic, c. 59,s. 11. 
 
 (n) 33-4 Vic, c. 71, S. 32 (3); 40-1 
 Vic, c 59, s. 11. 
 
 (i) 33-4 Vic, c 71, s. 32 (1); 40-1 
 Vic, c. 59, s. 7 (1). 
 
 (j) 33-4 Vic, C. 71, s. 32 (3); 40-1 
 Vic, o. 59, s. 7 (3), 11. 
 
 (Jfc) 30-1 Vic, c 131 (Companies 
 under the Cos.' Acts), s. 27. 
 
 (0 33-4 Vic, c 71, s. 3, " Stock." 
 
 (m) 40-1 Vic, c 59, s. 26 "Colonial 
 Stock."
 
 46.8 
 
 INDISPUTABLE TITLES. 
 
 Non-registra- 
 tion of bene- 
 ficial interests. 
 
 Consequent 
 position of 
 purchaser. 
 
 transferred (a). No beneficial nor partial interest may be 
 referred to on the books (b), the document of transfer (c), 
 or the register (d) ; and the investigation of title behind the 
 latest entry or registered transfer is not considered incum- 
 bent on a purchaser &c. (e) : Consequently, the transferee 
 of the legal estate rarely has notice of beneficial interests, 
 and, if he gives value, is exonerated from them (/) by the 
 ordinary rule (g). His chief danger arises from the possi- 
 bility that the transferor may not have had the Legal estate. 
 The fact that the Stock is standing in the latter's name is 
 generally considered sufficient evidence on this point, but 
 it is not (h) conclusive. A transferee for value of Stock 
 from a registered holder (who had himself obtained by 
 fraud a transfer of it from one who had previously trans- 
 ferred it to another) has been held (i) not to have obtained 
 the Legal estate, (because that was in the person to whom 
 the original transferor made the first transfer); and has, 
 therefore (/), been postponed to a claim by the original 
 transferor to set aside (k) the fraudulent transfer. And this 
 was so held (z) although the first transfer had never been 
 registered (*); and though the original transferor had can- 
 celled it before he made the second (i) (such cancellation 
 not being considered equivalent to a re-transfer); and 
 though the ultimate transferee for value had no notice 
 (actual or constructive) of the fraud or of any defect in the 
 title (i). Perhaps, however, a similar rule might not be 
 applied to Government Stock, for the holdey's title to it is 
 
 (a) 30-1 Vic. c. 131, s. 28. 
 
 (n) 33-4 Vic, c. 71 (Government 
 Stock Certificate), s. 30; 40-1 Vic; c. 
 59 (Colonial Stock), s 15; Maya's case 
 (Bank Stock), Lofft. 65; Bk. England 
 v. Parsons (same), 5 Vez. 665; Hum- 
 berstone v. Chase (same), 2 Y. & C.209. 
 
 (c) Beg. v. Gen. Cemetery Co.; 6 E. 
 & B. 415. 
 
 (d) 25-6 Vic, c. 89, •. 30 ; 8 Vic. , c 
 16, s. 20. 
 
 («) Dodds t. Hills, 2 H. & M. 424. 
 
 (f) Lindley 663-4; Sd. L. R. 7 H. 
 L. 505 
 
 (g) Stated ante, Ch. XLVII, p. 3S8 
 sqq. 
 
 (k) Cottam v. Eastern Cos. Co., 1 J. 
 & H. 243; Davis v. Bk. England, 2 
 Bing. 393; Donaldson v. Gillot, (Shares 
 in an East Indian Ry. Co.), L. R. 3 Eq. 
 274; Johnston v.Renton, L. R. 9 Eq.181. 
 
 (i) Donaldson v. G. 
 
 (j) Ante, p. 345 sqq. 
 
 (*) Ante, p. 289-91.
 
 INDISPUTABLE TITLES. 469 
 
 declared (a) to be indefeasible. And the legal estate does 
 not pass to a Bankruptcy-trustee till he has registered (b). 
 And, in the rare cases in which a purchaser of stock has Protection of 
 notice of a rival interest, he is postponed to it on the same owner 
 principles as if land were the subject purchased (c), and 
 this, whether the rival claim arises from a contract which 
 he has made (d), or a trust which he has accepted (e), or of 
 which he has notice (/) actual (/) or constructive (/)). 
 Hence, a purchaser of stock in a Company is subject to 
 the rights of the company (g), for the knowledge of the 
 nature of the Stock necessarily implies constructive notice 
 of them. Nor are the Beneficial owners of Stock left with- 
 out protection against an unwarrantable transfer of the 
 legal estate, for they may prevent it by Stop-order if the 
 fund be in court (A), by the prescribed Notice if it be not 
 (?'). But the latter method is objectionable as implying 
 doubt of the honesty of the trustee, and the beneficiaries 
 are generally content to rely on their trustees' liability to 
 pay the value of any stock which he may unwarrantably 
 dispose of. Provision is also made for the registration of Registration of 
 transmissions of stock &c, and transfers by the transmittees transmissions. 
 (i), whether the stock be Government (j) or other funds 
 transferable at the Bank (k), Colonial Stock (I), or stock of 
 a Company (m), and there are further provisions applicable 
 
 (1) As to transfer by a Married Co-executrix who has a Protection-order, see 
 the case in the note (n). 
 
 (a) 33-4 Vic, c. 71, s. 8. 505 (/); Fisher on Mortgages (2d Ed.), 
 
 (6) Re London $c. Co., L. R. 9 Eq. 103, 104, 690. 
 653. (»') Lewin Tr. 719-23; Judicature 
 
 (c) See ante, Ch. XLVII, XLIX, esp. Orders 0. XL VI, R. 2. Orders of Ap. 
 
 p.389(c), 391 (d, e), 393(6, c), 416 (ft). 1880. 
 
 (</) Ex. Frith, 5 D. G. S. 273. (j) 33-4 Vic, c. 71, s. 23, 32 (4). 
 
 (e) Shropshire ice. Co. v. Queen, L. B. (*) s. 73. 
 
 7 H. L. 505. (') 40-1 Vic, c. 59, s. 4 (3), (4). 
 
 (f) Warbnrlon v. Hill, Kay 470; As- (m) 25-6 Vic, c. 89 (Co's. Act), 9. 
 sumed, DodJs y. Hills, 2 H. & M. 424. 24, and Table A ( 12-15); 8-9 Vic, c. 
 
 (p) 2 Lindley, 708 (*). 16 (Co's. Clauses Act), s. 18. 
 
 (/>) See Lewin on Trusts (5th Ed.), («) Bathe v. Bk. England, 4 K. & J. 
 
 564.
 
 470 
 
 INDISPUTABLE TITLES. 
 
 Transfer by 
 
 Married 
 
 Woman. 
 
 Law reform. 
 
 Patent-rights. 
 
 British Ships. 
 Generally. 
 
 What interests 
 are to he 
 Registered. 
 
 on bankruptcy to any kind of stock (a) (i); and a Married 
 Woman, entitled to stock &c. for her separate use, may (b) 
 cause it to be transferred into her own name as so entitled. 
 Provision is also made (c) respecting the transmission of 
 Stock-certificates. 
 
 It has been proposed that the law applicable to the 
 transfer of stock should be the model for the reform in that 
 applicable to the transfer of land, but I have already (d) 
 shortly stated the objections to this suggestion. 
 
 The rules applicable to the transfer of Patent-rights seem 
 to be the same as those applicable to the transfer of stock 
 (e). The court is authorized to rectify the registry of 
 these (e). 
 
 British (/) Ships (g) are subject to enactments still more 
 stringent, though the separation and limitation of the bene- 
 ficial interest is not now (h) prohibited. 
 
 The Legal estate (i) in each ship is treated as consisting 
 of 64 shares (/), the title to each of which is treated as 
 distinct (k), and can be limited only to 1 person, or to not 
 more than 5 as joint-tenants (/), and in neither case for less 
 than the perpetual interest (m). Every holder of the legal 
 estate (i) in a British ship (except certain ships («)), or 
 share therein, may (0) be registered as such (n) in the 
 
 (1) The old enactments (p) respecting Ireland seem covered by the new (q); 
 for in no case (r) can a Bankruptcy-trustee gain (by registration) priority oyer 
 a disposition by the bankrupt, though unregistered. 
 
 (a) 32-3 Vic, e. 71 (E.), s. 83 (8); 
 35-6 Vic, c. 58 (L), s. 121 (7). 
 
 (6) 33-4 Vic, c. 93, s 3-4, interpre- 
 ted, Howard v. Bk. England, L. R. 19 
 Eq. 295. 
 
 (c) 33-4 Vic, C. 71, s. 32 (4); 40-1 
 Vic, c 69, s. 14. 
 
 (rf) Ante, p. 385; Apology for Con- 
 veyancing, p. 6, 56; and seeante, 384(i). 
 
 (e) Horsley's Patent, 39 L. J.Ch. 157. 
 
 (f) Defined 17-18 Vic, c. 104, s. 18; 
 Union Bk. v. Lenanton, L. R. 3 C. P. D. 
 243. 
 
 (</) Defined, 17-18 Vic, c 104, s. 2. 
 (A) 25-6 Vic, c 63, s. 3. [(2). 
 
 («') See, 17-18 Vic, c 104, s. 43, 57 
 
 O') 17-18 Vic, c 104, s. 37, amended 
 by 43-4 Vic,c 18, s. 2. 
 
 (i) Boyd on Merchant Shipping, 35 
 (p,q,r); 43-4 Vic, c. 18, s. 2. 
 
 (/) 17-18 Vic, c 104, s. 37 (3,4); 
 For definition &c of "Joint-tenancy" 
 see ante, p. 33 (a). 
 
 (m) In effect, s. 43. 
 
 (n) 17-18 Vic, c 104, s. 19. 
 
 (o) Sd. not to be compulsory in 
 Union Bk. v. Lenanton, L. R. 3 C. P. D. 
 247-50. 
 
 (p) 20-1 Vic, c 60 (I.), s. 269. 
 
 (q) 35-6 Vic, o. 58 (I.), s. 121 (7). 
 
 (r) Ante, p. 410 (f-k).
 
 INDISPUTABLE TITLES. 471 
 
 prescribed («) manner; and every change in the title 
 occurring by transmission (whether of the ownership (b) 
 or of a mortgage (c)), by transfer of the ownership (d), by 
 mortgage (e), or by transfer (/) or satisfaction (g) (which 
 operates as re-assignment (g)) of a mortgage, must be 
 registered; and transfers of ownership (h), and mortgages 
 (*'), are to be registered in the order in which they are 
 produced to the registrar. 
 
 And a Bankruptcy-trustee of the registered holder's 
 estate may require his own name to be registered (j). 
 
 For the convenience of holders desiring to deal with a Facilities for 
 ship at a distance (k) from her registry the registered ^Distance 
 
 holder (/) may demand a Certificate authorizing some fro ™ the 
 
 Rccrisfcrv 
 specified person or persons (m) to sell (/) the entirety (n) of, 
 
 or to mortgage (/), the ship within a specified period (o). 
 
 Such a certificate must state generally the terms on which 
 
 the power is to be exercised {p), and must enumerate any 
 
 mortgages already registered and subsisting (q) and any 
 
 certificates of mortgage or sale already granted (q). The 
 
 appointed officer must endorse on every certificate of 
 
 mortgage all mortgages made thereunder (r); and the 
 
 registrar who granted it must, on its being re-delivered to 
 
 him, cancel it, first entering on the register any unsatisfied 
 
 mortgages mentioned on the certificate (s). A certificate 
 
 of Sale expires by being exercised, and thereupon the 
 
 register of the ship must be closed (t), and if the purchaser 
 
 be qualified («) to hold British Ships the Ship must be 
 
 («) 17-18 Vic, c. 104, s. 30-40, 55- (j) 32-3 Vic, c. 71 (E.), s. 83 (8); 
 75, 84-9 1 ; 18-19 Vic, c 91, s. 10-12, 20-1 Vic, e- 60 (I.), s. 269. 
 
 15; 36-7 Vic, c 85, s. 3-6; 31-2 Vic, (*) 17-8 Vic c 104, s. 78. 
 
 c 129; 34-5 Vic, 0. 100, s. 4, 5. * (Q s. 76. 
 
 (6) 17-18 Vic, c 104, s. 60. (m) s. 77 (1). 
 
 (c) 8. 74. (n) s.81(l). 
 
 (rf) s. 55, 57. (o) s. 77 (3). 
 
 (e) s. 66, 67. (p) s. 77. 
 
 (f) s. 73, 80 (7). (?) s. 79. 
 
 (g) s. 68, and, as to Mortgages on the (r) s. 80 (2). 
 Certificate, s. 80 (7). («) ■. 80 (8). 
 
 (fc)s. 57. (0s.81(6,8,9). 
 
 (•') s. 67. ( u ) Under s. 18.
 
 472 
 
 INDISPUTABLE TITLES. 
 
 Holder's 
 Powers of 
 disposition. 
 
 Priority of 
 
 registered 
 
 disposition. 
 
 registered anew (a), any existing mortgages being entered 
 on the registry (b). A certificate of sale not acted on may 
 be cancelled (c); and a certificate of either kind may be 
 revoked (d) under certain prescribed safeguards (d). And 
 even the register itself may, as to any particular Ship, be 
 transferred from one place to another (e). 
 
 A registered owner (/) or mortgagee (g), or a mortgagee 
 under a certificate (h), or (when the person who would 
 otherwise be registered owner has acquired the ship by 
 transmission (/) and is not qualified as a British Subject (j)) 
 the nominee of the court (i), can, by deed attested (k), (or, 
 it seems, when the disponor is a mortgagee, without deed 
 (/),) dispose absolutely of the ship or shares therein 
 standing in his name (m) (or in that of the person to repre- 
 sent whom he is nominated («')), and can give receipts (m). 
 And a mortgagee can, of course, transfer his own interest («). 
 
 Every disposition of a ship or share therein, made by the 
 registered holder or other person just mentioned, takes 
 priority over all legal claims (o) (i); and over many bene- 
 ficial ones (o) (including claims to enforce an agreement to 
 mortgage the ship (p)) ; and over claims arising before the 
 last registration (q) (unless falling under those hereinafter 
 excepted), and (when made under a certificate) over claims 
 founded on the death (r), or (under circumstances) the 
 
 (i) The Registered title carries the right to freight (s). 
 
 (a) 17-8 Vic. c. 104, s. 81 (6,11). 
 
 (b) s. 81 (6, 8, 9). 
 
 (c) s. 81 (12). 
 
 (d) s. 83.' 
 
 («) s. 84-91; 18-19 Vic, c. 91, s. 12. 
 
 (f) s. 43 (latter clause). 
 
 far) s. 71. 
 
 (h) s. 80 (6). 
 
 (*) s. 62, 63. 
 
 0") Under s. 18. 
 
 (*) s. 55. 
 
 (9 s. 71. 
 
 (m) s. 43 (latter clause), C2, 71. 
 
 (n) s. 73. 
 
 (o) 17-18 Vic, tfc 104, s. 43 (last 
 clause); 25-6 Vic, c 63, s.3; Boysonr. 
 Gibson, 4 C. B. 121 ; The Horbck, L. R. 
 
 2 P. D. 243. 
 
 (p) Sd. Batthyani v. Bouch, 44 L. T. 
 N. S. 178a /. 36-40, and Ward v. Beck, 
 13 C. B. N. S. 676, holding that the rule 
 in Liverpool Blc. v. Turner, (20 D. G. F. 
 J. 502), is (so far) un affected by 25-6 
 Vio^c 63, s. 3. 
 
 (g) 17-18 Vic.c 104, s. 43. 
 
 (r) 17-18 Vic, o. 104, s. 80 (3), 81 
 (3). 
 
 (s) Wilson v. Wilson, L. R. 14 Eq. 
 32; Liverpool M. C. Co. v. Wilson, L. R. 
 7 Ch. 507; Lindsay v. Gibbs, 22 Bea. 
 522. Whether the latter part of the 
 decision in L. v. G. would hold under 
 the present act gu.,and see ante, (in this 
 page) (o).
 
 INDISPUTABLE TITLES. 473 
 
 bankruptcy (a), of the principal ; and a registered mortgagee 
 takes priority over a mortgage registered after his own 
 though made before it and known to him (b) ; and a mort- 
 gage entered on a certificate takes priority not only over 
 one subsequently entered thereon (c), (though made 
 before then and known to him (c)), but also over one 
 registered after the certificate was made (c) (i). But a 
 Transfer is subject to all rights or powers appearing by the 
 Register book to be vested in any other person (d), but, 
 when made under a Certificate, to those only which appear 
 on the Register-book previous to the date of the certificate, 
 or on the certificate previously to that of the transfer in 
 question; and (when made under a certificate) to claims 
 founded on non-observance of the terms of the certificate 
 {e)\ and to claims founded on the absence of title in the 
 transferor (/) (n) though the transferee registered in the 
 belief that the transferor was entitled (g), unless the trans- 
 feror was the registered holder (h) ; and to claims founded 
 on the pledge of a ship with possession (i) ; or on a deposit 
 of the certificates of registry (_/), or of a mortgage deed (k), 
 when the ship itself is not affected by such deposit (/); and 
 to beneficial rights and interests (m), (whether arising from 
 contract or otherwise,) except so far as these would inter- 
 fere with the powers of disposition and of giving receipts 
 conferred by the act (//), (an exception so vague as to 
 
 (i) I do not find any express provision as to the priority of sales made under 
 a certificate over sales previously made but subsequently entered. 
 
 (il) Of course a memorandum by the registrar that a registration was made 
 by mistake would not re-transfer the legal estate (o). 
 
 (a) 17-18 Vic, c.104, s. 80 (4), s. 81 (i)Cazenove v. Clayton, 2 M. &R.552. 
 
 (A), s. 72 (esp. latter clauses). (j) Clarke y. Batters, 1 K. & J. 242. 
 
 (6) s 69. (*) Lacon v. Liffen, 32 L. J. Ch. 315. 
 
 (c) s. 80 (5). (0 See I K. & J. 250 I. 1. 
 
 (d) s. 43; 25-6 Vic, c 63, s. 3. (»") Keith v. Burrows, L. R. 1 C. P. 
 
 (e) 17-18 Vic, c 104, s. 80 (1), 81 D. 722. 
 
 (2); Orr v. Dickenson, Johns. 1. («) 25-6 Vic, c 63, s. 6. 
 
 (J) Holderness v. Lamport, 29 Bea. (o) Bell v. Blyth, L. R. 4 Ch. 135, in 
 129; The Empress, Swabey 160. whichthe appellant's claim was, besides, 
 
 (g) H. v. L. subsequent in time. 
 
 (A) Ante, p. 472, (p\ 
 
 60
 
 474 
 
 INDISPUTABLE TITLES. 
 
 Landed 
 Estates Court, 
 (Ireland). 
 Generally. 
 
 necessitate judicial explanation (a) (i), but one which 
 embraces rights arising from dealings with a person whom 
 the owner has held forth as authorized to dispose of the 
 ship (b), and the enforcement of agreements to transfer it 
 (c), and equities between parties when the rights of third 
 persons are not in question (d)); and to certain beneficial 
 rights &c, whether interfering with these powers of dispo- 
 sition or not, and, amongst these, to an agreement that a 
 transfer in form absolute shall operate as a mortgage (e), to 
 a claim to set aside a transfer as made by mistake (/) or in 
 breach of trust (g), and to a trust for partners of the regis- 
 tered holder (h), and, (perhaps,) to a further charge in 
 favour of a previously registered mortgagee (*'). 
 
 The first step in modern times towards affording an 
 indisputable title to Tenements (_/') was, (if we except the 
 clauses respecting Advowsons in the statute of Limitations 
 (k),) the establishment of the Incumbered (now Landed) 
 Estates Court in Ireland, — a measure which, though at 
 first opposed by some leading members of the legislature 
 (/), was so worked out by the officials of the court as 
 eventually to gain the almost {m) unanimous approval of 
 Parliament (n). The Landed Estates Act contains provi- 
 
 (i) I omit (as no longer law) those cases (o) (negativing beneficial rights 
 and interests) which were decided before the recent act (p). But there are 
 good text-writers (9) who cite some of these cases as if still applicable. 
 
 (a) It is restricted above p. 472 (p). 
 But the restriction is confined to spe- 
 cific performance, see Keith v. Burrows, 
 L. R. 1 C. P. D. 732 I. 10-17. 
 
 (6) Hooper v. Gumm, L. R. 2 Ch. 282. 
 
 (c) Balthyani V. Bouch, 44 L. T. N. 
 S. 177. [237. 
 
 (rf) The Cathcart, 1 L. R. Ad. 314, 
 
 (e) Ward v. Beck, 13 C. B. N. S. 668, 
 and other cases in Smith's Mercantile 
 Law (8th Ed.) 186 (a). [382. 
 
 (f) The Margaret Mitchell, Swabey, 
 
 (g) Rose. L. R. 4 Adm. & E. 6. 
 
 (A) Sd. Holderness v. Lamport, 29 
 Bea. 129. [G. 585. 
 
 (i) See Parr v. Applebee, 7 D. G. M. 
 (j) Defined ante, p. 1. 
 
 (k) 3-4 Wm. IV., c. 27, s. 33. 
 (/) 104 Hansard's Parliamentary 
 Debates 901 ; 105 Hane. 346, 760, 763, 
 765-6, 1094, 1095, 1 102, 1343-51, 1359, 
 1361-6; 106 Hans. 713, 1042. 
 
 (m) 151 Hans. 1774. 
 
 (n) 1 50 Hans. 24 sqq. 
 
 (o) Hughes v. Morris, 2 D. G. M. G. 
 349; Mc.Calmont v. Rankin, 2 D. G. M. 
 G. 403, qualified by Armstrong v. Arm- 
 strong (No. 2), 21 Bea. 78; Coombes v. 
 Mansfield, 3 Drew. 193; Follet\.Delaney, 
 2 D. G. Sm. 235 See also Spirit of tht 
 Ocean, 34 L. J. Ad. 75. 
 
 (p) 25-6 Vic, c. 63, s. 3. 
 
 (q) Fisher Mort. pars. 1191-2; same 
 p. 30; Lewin Tr. 135 (h, i, k).
 
 INDISPUTABLE TITLES. 
 
 475 
 
 sions for ascertaining the boundaries of the property dealt 
 with (a), and large provisions for ascertaining and guarding 
 the rights of all persons interested (b), (which however 
 have, as we shall see, often failed to prevent injustice); 
 and the court is entrusted, (no doubt for the purpose of 
 immediately barring mere technical claims,) with a discre- 
 tion as to the persons who are to be informed of its 
 proceedings (c). 
 
 A Landed- or Incumbered-Estates-Couit- (i) Disposition Priority of 
 of a tenement (d) in Ireland, or of a rent-charge (e) or ta *° B Court 
 annuity (e) charged thereon, takes priority (/) over all Conveyance. 
 estates (g) rights (g) charges (g) and incumbrances (g) 
 inconsistent with it; whether it be a Sale (under the 
 Settled Estates Act (h) the Irish Land Act (t) or otherwise 
 (/), a Declaration of Title (k), of a Fee-Farm grant (/) 
 under the Renewable Leasehold Conversion Act (tit) (n); 
 
 (i) Though I think that the law applicable to dispositions under one of these 
 tribunals is equally so to dispositions under the other (except where I state the 
 contrary in the text), I have distinguished the enactments and decisions on the 
 one by the abbreviation "Inc." and those on the other by the abbreviation 
 " Lan." 
 
 (n) Partitions (n), Exchanges (o), and Rectifications of Boundaries (p), under 
 the Landed Estates and Incumbered Estates Acts take priority over claims 
 founded on Informality, but do not acquire an indisputable title, for the pro- 
 perty acquired under the partition &c. passes to the limitations previously 
 subsisting in that given in partition &c. 
 
 (a) As to the Landed Estates Court, 
 21-2 Vic, c. 72, s. 57. 
 
 (6) s. 31, 33-5, 49, 54, C9, 73, &c. 
 
 (c) s. 53. 
 
 (d) 2 1-2 Vic, c. 72 (Lan.), s. 61 (lat- 
 ter clause), extended by the definition 
 in s. 1; 33-4 Vic, c 46 (Lan.), s. 35; 
 12-13 Vic, c. 77 (Inc.), s 27. But in 
 the 33-4 Vic, c. 46 (Lan.), s. 35, 
 "Interests" is inserted and "Rights," 
 "Tithes," and "Charges," are omitted. 
 
 (e) 21-2 Vic, c 72 (Lan.), s. 61 (lat- 
 ter clause). 
 
 (/) Authorities in p. 470 (/) (w); 
 Cusack v. Hudson, (Lan.), 6 L. R. Ir. 
 309, modified as to the interpretation 
 of words of reference in De Vesci v. 0' 
 Kelly, (Inc.), I. R. 4 C. L 2C9. 
 
 (y) For definitions see s. 1, and the 
 
 Appendix to this work, and Tottenham's 
 Estate, (Lan.), I. R. 3 Eq. 547-8. 
 
 (/j)4()-1 Vic, c 18 (Lan.), s. 45; 21- 
 2 Vic, c 72 (Lan.), s. 46. 
 
 (i) 33-4 Vic, c. 46, s. 35. 
 
 (j) 21-2 Vic, c 72 (Lan.), s. 61. 
 
 (fc) s. 51 ; 28-9 Vic. c 88 (Lan.), s. 
 
 (/) 21-2 Vic. c 72 (Lan.), s. 60; 16- 
 17 Vic, c 64 (Inc.), s. 3, as to which 
 however it does not seem clear whethei 
 an indisputable title is conferred. 
 
 (m)viz: — 12-13 Vic, c. 105, amended 
 and extended by 31-2 Vic, c 62. 
 
 (») 21-2 Vic, c 72, (Lan.), s. 80, 62; 
 12-13 Vic, c 77, (Inc.), s. 44, 46. 
 
 (o) 21-2 Vic, c 72, (Lan.), s. 83; 12- 
 13 Vic, c 77 (Inc.), s. 47. 
 
 (;;) 21-2 Vic, c 72 (Lan.), s.79,81; 
 12-13 Vic , c. 77 (Inc.), s. 43, 45.
 
 476 INDISPUTABLE TITLES. 
 
 and this, though by the disposition a new incorporeal 
 tenement be created, (as, a Fishery («),) or a distinct 
 portion of a corporeal tenement be severed, (as, a Mine 
 (b)); and though the rights &c. barred belonged to the 
 Crown (c) (i) ; and though the contract had been made 
 subject to them (rf); and though the barring of them was 
 merely due to a mistake in the frame of the conveyance 
 made (it may be) by the officials of the court (e). 
 
 And it seems that a questionable claim may be validated 
 even by the fact that a Landed-Estates-Court-Conveyance 
 is expressly subject to it (/). And a disposition under the 
 act takes priority over all claims founded on the omission 
 of something which ought to have been done (g). And the 
 court cannot recall a conveyance once made (h). 
 
 But the disposition is subject to Rates and Taxes, (such 
 as poor-rate (i) and labour-rate (_/)); and it is subject, when 
 made by the'Incumbered Estates Court, to profits in pren- 
 der (k), and easements (k); and it is subject to Tithe-rent- 
 charge (/), Crown-rent (/), and Quit-rent (/), and to charges 
 (/) under the Drainage (m) or Improvement (n) Acts, and 
 under other acts authorizing advances of public money on 
 lands in Ireland (o), except when the court redeems these 
 
 (i) This does not seem to extend to sales under the Irish Land Act (1870) 
 (]>), for the Crown is not mentioned in that act (9). 
 
 (a) Gorev.Mc.Dermott, (Lan.), I. R. Erring ton, (Inc.), 7 H. L. 617; Power 
 1 C. L. 348. v. Reeves, (Lan.), 10 H. L. 645; Gore 
 
 (b) Sd. O'Donnel v. Ryan, (Inc.), 4 v. Mc.Dermott, (Lan.), I. R. I C. L.348. 
 Ir.C.L.67-74; Rutledgex. Hood, (Inc.), (fc) Re Walsh, (Lan.), I. R. 1 Eq. 
 3 Ir. C. L. 447. 399; Tottenham's Estate, (Lan.), I. R. 3 
 
 (c) 21-2 Vic, c. 72 (Lan.), s. 61; Eq. 547. 
 
 12-13 Vic, 0. 77 (Inc.), s. 27. («) Lally v. Concannon, (Lan.), 3 Ir. 
 
 (d) Rorke v. Errington, (Inc ), 7 H. C. L. 557. 
 
 L. 617; Tottenham's Estate, (Lan), I. (j) Re Robhin, 4 Ir. Jur. 145. 
 
 R. 3 Eq. 547. (*) 12-13 Vic, c 77 (Inc.), s. 28. 
 
 (e) R. v. E. ; 7"*. Estate; re Walsh, For definitions see ante, p. 2, 8. 
 (Lan.), I. R. 1 Eq. 399. (/) 21-2 Vic, c 72 (Lan), s. 62. 
 
 (f) Seethe cases referred to in Mad- (m) Viz: — 5-6 Vic , c. 89, and the 
 den on the Landed Estates Court 52; acts amending it. 
 
 and see Corless v. Spurling, (Inc), I. R. (n) Viz: — 10-1 1 Vic , c. 32. 
 
 9 Eq. 601. (0) 29 Vic, 0. 26. s. 3- 
 
 {g) 21-2 Vic, c 72 (Lan.), s. 85; 12- (p) 33-4 Vic, c 46 (Lan.), s. 35. 
 
 13 Vic, c 77 (Inc.), s. 49; Rorke y. (q) See Ante, p. 371 n. («).
 
 INDISPUTABLE TITLES. 477 
 
 and states the fact on the conveyance (a) ; and it is subject, 
 when made under the Irish Land act 1870 (b), to Tithe-rent- 
 charge (c), Quit-rents (c), rights of Common (c), rights of 
 Way (c), Water-courses and rights of Water (c), and other 
 Easements (c), Heriots (c), Manorial rights (c), Franchises 
 (c), Drainage charges (c), and other charges created under 
 act of parliament and to be specified in the conveyance (c), 
 and (as regards land which the landlord himself holds in 
 fee-farm) to the rents covenants and conditions affecting it 
 (c); and it is subject, when either the thing disposed of is 
 a rent-charge or annuity or the interest disposed of is less 
 than the fee-simple (d), to all interests and rights incon- 
 sistent with the title of the grantor or lessor (d), (except 
 when made under the Irish Land Act 1870 (e)), and to the 
 provisions of the lease (/), or fee-farm grant (g) ; and it is 
 subject to any Personal Equity existing against the dis- 
 ponee (h), at least if founded on a contract by him (i), or on 
 a fiduciary relation in which he stands (;), or on his fraud 
 (at least if he had carriage of the sale(£)). And, of course, 
 it is subject to interests &c. expressly excepted in it (/), 
 (amongst which tenancies rights of common and other 
 "easements" leases underleases &c. annual charges and 
 apportioned parts thereof are, as regards conveyances in 
 fee, expressly (in), and profits in prender (») are impliedly 
 (0), enumerated) and clauses of exception are liberally 
 
 (a) 21-2 Vic, c. 72 (Lan.), s. 62. lowing notes. 
 
 (6 Viz:— 33-4 Vic, c. 46. («') Sexton v. Mc.Grath, (1st point), 
 
 (c) 33-4 Vic, c. 46 (Lan.), s. 36 (Lan.), I. R. 6 Eq. 381. 
 
 \d) 21-2 Vic, c. 72 (Lan.), s. 61 (lat- (j) Chute v. Brady, (Lan ), I. R. 6 
 
 ter clause); 12-13 Vic, c. 77 (Inc.), s Eq 385. 
 27 ; Kennedy v. Woods, I. R. 2 C. L.4S6. (*) Sd. re Collis, (Inc.), 14 Ir Ch. 
 
 («) 33-4 Vic, c. 46, s. 35 fin. 511, expld. I. R. 1 Eq. 413 /. 28. And 
 
 |7")21-2 Vic, c 72 (Lan), s.61, 35- see I. R. 1 Eq. 410 /. 24. 
 6 Vic, c. 46 (Lan.), s. 36; 12-13 Vic, (/) 21-2 Vic, c 72 (Lan.), s. 61; 12- 
 
 c. 77 (Inc.), s. 27. 13 Vic, c. 77 (Inc.), s. 27. 
 
 (g) 35-6 Vic, c 46 (Lan.), s. 36. (mi) 21-2 Vic, c 72 (Lan.), s. 61 ; 
 
 (A) So contended in my essay in the De Vesci v. 0' Kelly, (Inc.). I. R. 4 C. 
 
 Law Magazine for Aug. 1870, (now in L. 269, expld. G L. R. Ir. 313. 
 the Appendix to this work); and now, (n) Defined ante, p. 2 /. 19-20. 
 to a great extent, confirmed by the (o) Hamilton v. Musgrove, (2d. point), 
 
 decisions in the cases cited in the fol- (Lan.), I. R. 6 Ea. 129.
 
 478 
 
 INDISPUTABLE TITLES. 
 
 Record of 
 
 Title(Ireland). 
 
 Generally. 
 
 Mode of 
 Recording 
 title. 
 
 Opening and 
 closing record. 
 
 construed (a), so much so that an exception of an agree- 
 ment for a lease (which would only carry the beneficial 
 estate) has been held to extend to the lease itself (which 
 carried the legal) (b), and the exception of a tenancy 
 excepts also the tenant-right (b). 
 
 The act also contains (c) subordinate provisions on the 
 apportionment of rents and other matters too detailed to 
 be noticed here. 
 
 After the intervention of acts applicable to England, 
 which will be discussed further on, the Landed-Estates 
 Act was supplemented by an adaptation of Sir R. Torrens's 
 celebrated scheme, under the name of Record of Title. 
 
 A disposition (or declaration of title) by the Landed- (d) 
 or Incumbered (e) -Estates-Court may (/) be recorded in 
 the appointed office (d), by entry in the prescribed book, 
 in which space is left after each entry for the entry of 
 subsequent transactions (g). And when any partial 
 interest or any charge is recorded the judge may have it 
 described by reference to the disposition by which it was 
 carved out (h). The parties who appear on the record to 
 be interested may have the record closed (i), and when 
 part of a recorded estate is transferred the existing record 
 is to be closed as to that part and a new one opened (/), 
 and it seems (k) that on a judicial sale a new record must 
 be opened in the name of the purchaser. So, when a 
 partial interest is limited (/), a new record may be opened 
 with respect to it (;;*), if (/) it be vested (n) in possession, or 
 
 (a) Antrim v. Gray, (Inc.), I. R. 9 as to persons under Disability, s 60-1. 
 
 Eq. 521; Hamilton v. Musyrove (Lan.), 
 I. R. 6 C. L. 129; Mtildleton v. Clarence, 
 (Lan ), I. R. 11 C. L. 505; De Vesci v. 
 O' Kelly, (Inc.), I. R. 4 C. L. 209; re 
 Dillon, (4th point), (Lan.), I. R. 9 Kq. 
 607. 
 
 (6) Corless y. Spurliny, (Inc.), I. R. 3 
 Eq. 595. [72. 
 
 (c) 21-2 Vic, c. 72 (Lan.), s. 68, 69,. 
 
 (<J) 23-9 Vic, c. 88, s. 3, 4, 6, 5 1 , and, 
 
 (e) s. 51. 
 
 (f) s. 7. 
 (9) s. 8. 
 
 (A) 21-2 Vic, c. 72, s. 1 1 fin , 40. 
 
 (i) S. 32. 
 
 (j) s. 23, 22, and see s. 24. 
 
 (Jb) s. 45. 
 
 (/) s. 2 "Settlement," 38. 
 
 (mi) s. 39. 
 
 (n) Defined ante, p. 224.
 
 INDISPUTABLE TITLES. 479 
 
 in remainder (a) after a life (b), and be disponable without 
 the consent of any other person (b), and a judge so direct 
 (b), but not if it be liable to be defeated or affected (b), 
 unless merely under a power of sale, exchange, or charge 
 (b), in which case a memorandum of such power is to be 
 entered (b). So, when a Charge (c) is created by or under 
 a disposition by which partial interests are limited (d), a 
 new record may be opened for it (e), if it be vested (e) and 
 ascertained (e), and the judge so direct (e). So, when a 
 Lease (i) is made, a new record may be opened for it (/) ; 
 and it is to be subject to the claims of any previously 
 recorded incumbrancer, unless it be made with his consent 
 (/), or be at rack-rent without fine for a term not exceeding 
 31 years and under which the tenant is in possession (g). 
 
 On transmission of a recorded estate by Death to the Recording of 
 Heir, he may be recorded as holder (h) if the interest be missl0QI 
 
 an inheritance (Ji) and six months at least have elapsed 
 since he applied to be recorded (h), and advertisements 
 have been issued to ascertain whether the deceased left a 
 will (h); and on such a transmission to the Personal repre- 
 sentative he may be recorded (?) ; but (in either case) the 
 court may appoint a special trustee to be recorded if any 
 doubt exist touching the ownership (J). On transmission 
 by Bankruptcy the Trustee (k), and on transmission by 
 Marriage of a woman she and her husband jointly (k), may 
 be recorded. And judgments &c. may be noted every five 
 years (/), and the affidavit prescribed by the Judgment- 
 Mortgage- Act is, as to recorded land, unnecessary (/). 
 
 (1) "Lease" includes an agreement for a lease, and includes any term of 
 years (m). 
 
 (a) Defined, Butler's note (e) to (9) s. 49. And see below in thit 
 Fearneon Contingent Remainders (1 Oth chapter. 
 
 Ed.), 3. (A) s. 35. 
 
 (6) 28-9 Vic, c. 88, s. 38-40. (») s. 36. 
 
 (c) Defined, s. 2. ( j) Latter clause of s. 35. 
 
 (d) s. 2 " Settlement." (*) s. 37. 
 
 (e) s. 38 (last clause), 39, 40. (/) s. 42, 43. 
 
 (f) s. 49. ("») ■. 2 "Lease."
 
 480 
 
 INDISPUTABLE TITLES. 
 
 Mode of 
 Disposition. 
 
 Recording of 
 dispositions. 
 
 Protection of 
 un-registered 
 interests. 
 
 A recorded interest or charge may be dealt with by any 
 means (except Deposit of title deeds («)); by which it 
 might have been dealt with if unrecorded (a) or by dispo- 
 sition in the prescribed form (b), or by endorsement (a) or 
 deposit (c) of the certificate or duplicate about to be men- 
 tioned. 
 
 Every disposition of recorded property is to be recorded 
 (d) as prescribed (e), whether it be a Charge (d) or not, and 
 so is every payment on account of a charge (/), but a 
 testamentary disposition only if the judge (after prelim- 
 inaries calculated to ascertain the genuineness of the Will) 
 so direct (g). The recording of a disposition is, as regards 
 priorities, complete as soon as the officer receives it (h), a 
 provision which impairs the efficiency of the Act. 
 
 Trustees with Power of sale may be recorded as joint- 
 holders (i), and any other person's name may be entered 
 as that of one whose consent is to be necessary to a sale 
 by them (i), but a judge may remove such name (i) and 
 may substitute another (i). And when persons are recorded 
 as joint-holders a note may be entered disabling them from 
 making a disposition except when they equal a specified 
 number or when the court so direct (j). And any person 
 interested may lodge a caveat (k), the effect of which is that 
 any disposition recorded within a prescribed subsequent 
 period, (or such further period as a judge, after taking 
 security from the cautioner, may direct (I),) is to be subject 
 to any claim which the cautioner may have (k). The judge, 
 too, is authorized to compel transfers of Trust estates (m), 
 and to have the record Rectified in case of (») Fraud (0), 
 or perhaps otherwise (o). 
 
 (a) 28-9 Vic, C. 
 
 88, i 
 
 I. 26. 
 
 (•) 8. 41. 
 
 (6) s. 26, 28. 
 
 
 
 O') s. 48. 
 
 (c) s. 26,21. 
 
 
 
 (*) 8. 46. 
 
 (d) 9. 14, 34. 
 
 (e) s. 27, 29, 34. 
 
 
 
 (/) s. 47. 
 
 
 
 (m) 8. 31 
 
 (f) 8. 44. 
 
 
 
 (n) s. 17. 
 
 (9) s- 34. 
 
 
 
 (o) s. 33. 
 
 (A) s. 30. 
 
 

 
 INDISPUTABLE TITLES. 
 
 481 
 
 Persons whose interests are recorded, and their solicitors 
 and agents, may inspect the record (a), and the public 
 have access to an Index shewing what estates are recorded 
 (a). The recorded holder may demand either a Duplicate 
 of the disposition or declaration which the court has made 
 to him (a) bearing a note of the fact that it is recorded (b), 
 or a Certificate descriptive of the property and of the 
 "incumbrances leases and other matters in force relating 
 to it" (c); and the recorded holder of a charge can obtain 
 a Certificate of Charge (c); and each alike may, from time 
 to time, have his certificate rectified by comparison with 
 the record (i), but renewed only if lost (e) or returned to 
 the office (f). The use of the duplicate and certificate are 
 to facilitate transfers of the property or charge (for these 
 may (g) be made by indorsement), and to insure that none 
 but the right person shall make a transfer (for no dealing 
 except a lease may be recorded until the certificate 
 be produced (h), and the owner, unless he attend and 
 sanction it, be informed (A)). And in order further to 
 facilitate dealings a special certificate of the state of the 
 title may be demanded on delivery up of the ordinary 
 certificate (i), and no dealing may then be recorded for 14 
 days without delivery up of the special certificate (i). 
 
 The act also contains subsidiary clauses (j), and, amongst 
 them, power for the judge to decide Questions of Law &c. 
 (k) ; clauses (/) placing dispositions by Married Woman in 
 almost the same position as under the ordinary law; and a 
 clause (m) enabling the Guardians and Committees of 
 Minors and Lunatics to do, with the assent of the judge, 
 anything which the minor &c. might have done. 
 
 The recorded owner for the time being, (which expression 
 
 Rights of 
 Recorded 
 holders. 
 
 («) 28-9 Vic, c. 88, s. 10. 
 (6) s. 9. 
 
 (c) s. 18, 22. 
 
 (d) ». 19. 
 
 (e) s. 25. 
 (/) s. 18. 
 (3) s.26. 
 
 (h) s. 19. 
 
 (0 8. 20. 
 
 0) s. 47 fin., 52-70. 
 
 (*)s. 11. 
 
 (/) s. 60, 61 fin. 
 
 (m)s. 61. 
 
 Subsidiary 
 clauses. 
 
 Priorty of 
 recorded trans- 
 actions. 
 
 61
 
 482 
 
 INDISPUTABLE TITLES. 
 
 Recorded 
 dealings. 
 Generally. 
 
 is in effect defined (a) as denoting the person presently- 
 entitled to the property for ever or in tail or quasi in tail, or 
 having power to dispose of the perpetual interest with or 
 without the consent of any other person, or entitled to the 
 whole interest comprised in a lease, or empowered to 
 dispose thereof, but which is not defined in any way 
 applicable to distinct records of terminable interests other 
 than leases (b),) is to be "absolutely and indefeasibly 
 entitled" (c) to the property, or to the share or interest 
 in respect of which he is recorded, and that "free from 
 all rights interests claims and demands" (c), whether in 
 the Crown or otherwise (c), except those below mentioned ; 
 and free from all unrecorded estates and interests contracts 
 and dealings (d) ; and free (when he derives under a dispo- 
 sition or contract for value) from all claims founded on 
 irregularity or informality (c) ; and free (when the recorded 
 disposition is a purchase for value or a mortgage) from 
 judgments, recognisances, crown-debts, lites pendentes, 
 acceptances of office, inquisitions, decrees, and orders, 
 (except such as were entered or re-entered on the record 
 within 5 years next before the record of the disposition (f)) ; 
 and free (when the recorded disposition is a transfer for 
 value of a mortgage) from all claims of the mortgagor to 
 credit for unrecorded part payments of principal (g), or of 
 interest due since the last preceding gale day (g) ; and free 
 (when the recorded transaction was done under the direction 
 of the court by a representative appointed by the court (h) 
 to a deceased person) from all claims of persons claiming 
 under the deceased (i). But he has these priorities only if 
 the record be regular and formal, or if he derives for value 
 (j). And he is subject to Tithe rent-charge (k), Crown- 
 
 (a) 28-9 Vic, c. 88, B. 2 "owner." (g) s. 44. 
 
 (6) Under s. 39. (A) Under s. 35. 
 
 (c) s. 12. (t) s. 35. 
 
 (d)s. 26 Jin. (j) See s. 13. 
 
 (e) s. 13. (*) s. 12, 26, fin. 
 
 (f) ». 43.
 
 INDISPUTABLE TITLES. 483 
 
 rent (a) (or quit-rent to the Crown (a)), and charges 
 imposed under any Drainage or Land- Improvement 
 (public) Act (b) (i); and to any such Lease as has been 
 already (c) described (a); and to any qualification men- 
 tioned on the Record (a) ; and to any previously " recorded 
 Charges Incumbrances Tenancies or Leases " (a); and (when 
 the recorded interest is Leasehold) to claims paramount to 
 the title of the lessor, unless the court, "having invest- 
 igated his title," directs a note to be entered that the 
 leasehold title is guaranteed (d); and (it would seem) to 
 claims of which such registered holder or his agent was 
 aware when he registered (e), except (when he is purchasing 
 or taking a mortgage) judgments and the like (f), and 
 except claims arising before the making of the Landed- or 
 Incumbered-Estates-Conveyance or -declaration (g); and 
 (when the recorded disposition is the transfer of a mortgage) 
 to any claim by the mortgagor to credit for interest due 
 before the preceding gale day (h) ; and to any Rectification 
 of the register on the ground of Mistake, Fraud, &c. (i); 
 and, (when the last record of ownership is derived under a 
 certificate or duplicate granted instead of a lost one,) to 
 claims founded on the latter (j) ; and he is not entitled to 
 any priority which he (or, unless he purchased for value 
 without notice, his predecessor in title,) obtained by Fraud 
 or falsehood (k). 
 
 Recorded Charges rank amongst themselves in the order Recorded 
 in which they are recorded (/). amongst 
 
 And Land Debentures may be granted in respect of themselves. 
 
 J & r Land Dehen- 
 
 recorded land in Ireland (m) after investigation of the title tures (Ireland). 
 
 (i) Nevertheless the Order by which the advance is authorized is to be 
 recorded («). 
 
 (a) 28-9 Vic, c. 88, s. 12, 26 fin. (f) 28-9 Vic, c. 88, s. 43 fin. 
 
 (b) s. 12, extended by 29 Vic, c. 26, (</) Ante, p. 476 (d). 
 S. 1. (h) s. 44. 
 
 (c) Ante, p. 479 (g). («') Ante, p. 480 (n) (o). 
 
 (d) s. 50. 0) s. 25. 
 
 (e) For the words of the Act are not (*) s. 57 fin. 
 much more stringent than those of the (0 s - 14 Jin. 
 
 Registry Acts, as to which see ante, p. (m) 28-9 Vic, c. 101, s. 4, 5. 
 413 (A)-414 (d). (») 29 Vic, c. 26, s. 2.
 
 484 INDISPUTABLE TITLES. 
 
 and certificate by the court (a), and are transferable by 
 
 memorandum in the books of the court (b). They take 
 
 priority over all other incumbrances (c), except quit and 
 
 crown rent, tithe rent-charge, and charges imposed by the 
 
 drainage or improvement acts (c), and to any incumbrances 
 
 specified in the certificate (cj. And Debentures on the 
 
 same land rank equally amongst themselves though differing 
 
 in date (c). Trusts affecting debentures do not affect the 
 
 land-owner (d). 
 
 Old Land- And t he same policy has been extended in a modified 
 
 transfer 
 
 (England) Act. form to England, for, from 29th July 1862 (e) to 1st January 
 
 Who may 1876 (f), any person having or capable of conferring a 
 
 how. perfect (g) title to any tenement (h) in England (i) in fee- 
 
 simple (j) or for the whole period comprised in a lease (k) 
 of the prescribed (k) character, or having obtained a 
 judicial declaration (I) or vesting order under (m) the 
 enactments about to be mentioned shewing him to have 
 such title, might have applied for registration with («), — 
 and any person who and whose predecessors had been in 
 possession as owners in fee for 10 years (0), and who could 
 prove the last link in his title (p), and could procure a 
 statutory declaration by himself or his solicitor &c. and (if 
 required) by others that the declarants believed (q) him to 
 be entitled, might have applied for registration without (r) 
 — an indefeasible title; and that, though the property was 
 subject to charges and Incumbrances (s); but not if it was 
 Copyhold (/). And, after preliminaries (u), the registration 
 might have been made (v), by entering (v), in one book a 
 
 (a) 28-9 Vic, c. 101, s. 4. (0 s. 31. 
 
 (b) s. 7, 13. (m) s. 50. 
 
 (c) s. 11. (») s. 5. 
 
 (rf) s. 18. (0) s. 25 (1). 
 
 («) 25-6 Vic, c. 53. (p) s. 25 (2). 
 
 (f) 38-9 Vic, c. 87, s. 3, 125. (q) 8. 25 (3). 
 
 (9) 25-6 Vic, 0. 53, s. 5. (r) s. 25. 
 
 (A) S. 140. (*) s. 4 fin. 
 
 (i)Bl. («)b.2. 
 
 (j) s. 4. (") s. 5-13, 22-5, 27 fin., 29. 
 
 (*) 8. 26. 00 s. 14, 7.
 
 INDISPUTABLE TITLES. 485 
 
 description of the property, in another the limitations 
 
 (except incumbrances) to which it was subject, and in a 
 
 third the incumbrances; the entries being identified by 
 
 numbering each property (a) with the same numeral in 
 
 each book. On the latter books any qualification of the 
 
 title or interests might have been either set out (b), or 
 
 described by reference to a deed (c) containing it. 
 
 Many properties have been {d) registered under this act ; Removal to 
 
 and the parties interested can remove them from the new egl8 er ' 
 
 register (e), or (without cost) transfer them (f) to that 
 
 instituted by a later Act (g) discussed below. Till this be Power of 
 
 done the persons recorded as indefeasibly entitled can, by ^ e uj lste t re<1 
 
 sale mortgage or contract, for value, transfer such interests dispose. 
 
 as they appear by the record to be entitled to transfer (//), teredos ^^ 
 
 and the transferee is entitled to the same, free (as from the ind ef e asibly 
 
 v entitled, 
 
 time specified on the register (h) and when none is specified 
 
 from that of registration (/*)) from all claims (h), including 
 those of the Crown (A), and including claims founded on 
 irregularity and informality in the proceedings (i); but 
 exclusive (j) of Mines and minerals unless expressly 
 mentioned (j) ; and subject to (k) Crown-rents, Tithe-rent- 
 charge, certain Taxes assessments and liabilities of Tenure, 
 Manorial rights, and Franchises, and to (/) Leases with 
 occupation for not exceeding 21 years (/); and to (I) quali- 
 fications mentioned on the record; and to (/) registered 
 incumbrances; and (when the title recorded is Leasehold) 
 to (in) claims paramount to the title of the lessor; and to 
 interests subsisting before the time when the title is to 
 commence («). But persons recorded simply as entitled When R eg ; g _ 
 
 continue subject to claims subsisting at the date of regis- tered simply 
 
 as entitled. 
 
 (o) 25-6 Vic, c. 53, s. 14, 7. (9) 38-9 Vic., c. 87. 
 
 (6) s. 16. (A) 25-6 Vic., c. 53, s. 20. 
 
 (c) s. 18. W s. 21. 
 
 (d) Hunt on the Land-Transfer Act, 0) 8. 9. 
 143. (*) s. 20, 27. 
 
 («) 25-6 Vic, c. 53, s. 34; And see (0 s. 27. 
 Exp. Winter, L. R. 15 Eq. 156. (w) b. 26. 
 
 (/) 38-9 Vic, c. 87, 8. 126. (») a. 58.
 
 486 
 
 INDISPUTABLE TITLES. 
 
 Powers of 
 persons inter- 
 ested to apply 
 for a sale with 
 indefeasible 
 title. 
 
 Declaration of 
 title(England). 
 Who may ask 
 for. 
 
 When the 
 Court may 
 grant it. 
 
 When the 
 Court may 
 annul it. 
 
 tration (a). Both classes however may alike (b) deal with 
 the property under a system (b) similar to that already (c) 
 described. 
 
 And any person interested in a tenement (d) in England 
 (e) about to be sold under the court (f) or belonging to one 
 of the classes of persons mentioned above (g) as authorized 
 to apply for registration of title (h), may apply to the court 
 for a sale with an indefeasible title ; and the court may (i) 
 after preliminaries (j), vest the property in the purchaser, 
 who will then be entitled to it with its appurtenances &c. 
 (*), free (as from the time specified (I) or when none is 
 specified from that of the order (k)) from all estates rights 
 incumbrances and interests (k), including those of the Crown 
 (A), but subject to (m) the interests already (n) referred to, 
 and (m) to incumbrances exceptions and qualifications 
 specified in the order; and subject to (o) interests subsisting 
 before the time from which the title is to commence. 
 
 And any person (p) or persons (q) claiming to be entitled 
 to, or to be empowered to dispose of, a corporeal tenement 
 (r) in England (s) in fee-simple in possession (p) (whether 
 subject or not to incumbrances &c. (p)), or entitled to apply 
 for registration with an indefeasible title (p), may petition 
 the court for a Declaration of Title {p) ; and the court may 
 declare him to be entitled either absolutely (t) or subject to 
 qualifications (t), but only after ascertaining that the title 
 is perfect (u) and after other preliminaries (v), and not if 
 the property be Copyhold &c. (w) ; and the court may annul 
 
 (a) 25-6 Vic, c. 53, s. 25 (6). 
 (6) s. 53, 35-40, 59, 63, sqq. 
 
 (c) Ante, p. 479 (A)-481 (/). 
 
 (d) 25-6 Vic, c. 53, s. 140. 
 
 (0 «■ 1. 
 
 (/) s. 49. 
 
 (<;) Ante, p. 483 (e-A). 
 
 (/«) 25-26 Vic, c. 53, s. 41. 
 
 («) s. 45. 
 
 (j) s. 42-45, 48, 49, 53. 
 
 (A) s. 50. 
 
 (I) s. 51. 
 
 (m) s. 45-50. 
 
 (n) Ante, p. 485 (*). 
 
 (o) 25-26 Vic, c 53, s. 52. 
 
 (p) 25-26 Vic, c. 67, s. 1. 
 
 (q) s. 3. 
 
 (r) s. 48. 
 
 (*) s. 49. 
 
 (<) s. 15. 
 
 (m) s. 6, 8. 
 
 (») s. 6, 8-15, 39. 
 
 (u>) s. 4.
 
 INDISPUTABLE TITLES. 
 
 487 
 
 or vary (a) the declaration if unjust (a), but not for irregu- 
 larity or informality (b), nor to the prejudice of a Purchaser 
 for value (c) (i). Appeals are allowed (d), and when they 
 have been decided or the time for bringing them has 
 elapsed the court may certify the fact (e). The only effect Effect of it. 
 of the declaration is that a purchaser for value from the 
 party whose title is declared is free from all claims from 
 which he would have been free if the title had been as 
 declared (f), except those already (g) referred to (h),~ But, 
 when a sale is made wrongfully, the purchase-money is to 
 be expended in purchasing lands to be limited as the lands 
 sold were (previously to the declaration) limited (/). 
 
 And now any person registered under the former (j) act, New Land- 
 — or (for his own benefit) entitled to, or capable of selling, |™[ er , 
 or under contract to buy, an estate in fee-simple (k) or fee- Who may ask 
 farm (/) or for the period comprised in a lease for or depen- anVmrespecT 
 
 dant on lives or of which 21 years are unexpired (m), in of what 
 
 ,, property, 
 
 land (n) in England (0), or in Mines or minerals there 
 
 separately owned (p), or in an Advowson there (p) or in a 
 
 Rent, Tithe-rent-charge or [similar (11)] incorporeal 
 
 hereditament there (p) (not being accessory to a dominant 
 
 tenement (p)), — may apply for the registration of himself ((7) 
 
 or his nominees (q) as holders of the estate, with (in the 
 
 case of a fee-simple) either an absolute (k) or a possessory (k) 
 
 title, and with (r) or partially with (s) or without (t) (in the 
 
 (I) The act does not expressly add " without notice." 
 
 (II) This word must be implied, pursuant to the rule (u) that general 
 words following an enumeration of particulars are meant to refer only to things 
 similar to those particularised. 
 
 (a) 25-6 Vic, c. 67, s. 31, 2. 
 
 (b) s. 20. See also s. 25-7. 
 
 (c) s. 24. 
 
 (d) s. 16-19. 
 («) s. 22. 
 (/)8.24. 
 
 (g) Ante, p. 485 (ifc). 
 
 (h) 25-6 Vic, c. 53, s. 29. 
 
 (t) s. 35. 
 
 (j) 25-6 Vic, 0. 53. 
 
 (i) 38-39 Vic, c. 87, s. 5 ; and see 
 
 68 82. 
 
 (/) s. 82, (2d. clause), 
 (m) s. 11, and sees. 68, 82. 
 (n) Sees. 4 (fin). 
 (o) s. 2, modified by s. 67. 
 (p) s. 82, (1st clause); s. 18 (d). 
 (q) s. 5, 11. 
 (r)s. 11, 13. 
 (*)s. 11, 15. 
 (0 s. 11, 14. 
 
 (u) See Theobald on Willi 88-91, 
 410.
 
 488 
 
 INDISPUTABLE TITLES. 
 
 Under what 
 circumstances. 
 
 Subject to 
 what Interests. 
 
 case of a leasehold) a guarantee of the lessor's title: and 
 several persons interested in any way may apply for joint 
 registration (a) : but no undivided share may be registered 
 (6). 
 
 The registration may be made whether the estate be 
 subject to incumbrances (c) or not (c); but only if (when 
 the applicant has merely contracted to purchase) the vendor 
 consents to the application (d) ; and only after preliminaries 
 (e), chiefly intended to insure that any defect in the title 
 shall be discovered (j) ; and only (in general) if a memor- 
 andum of registration has been so entered on the title deeds 
 as to inform a subsequent purchaser (g) ; and only if (when 
 the title is registered as absolute (h) or the property is 
 leasehold (?')) the registrar approves of the title ; and only 
 if (when the title is to be registered as possessory (h)) the 
 prescribed evidence, that the deponents know the possession 
 to be, and believe the title to be, accordant with that 
 proposed to be registered (j), and (if required) that the 
 entry on the deeds of the fact of registration will be 
 necessarily seen by a subsequent purchaser (j), be adduced ; 
 and the prescribed Notices served (h) ; and not if the pro- 
 perty be Copyhold (*); and (when the property is Leasehold) 
 not so as to contravene any restraint on alienation contained 
 in the lease (k). And provision is also made (I) for the 
 representation of the Crown, the Duke of Cornwall, and 
 public functionaries; and for the registration of land below 
 High Water-mark. 
 
 And the registration is to be made subject to any estates 
 rights and interests to be specified or referred to in the 
 register (m), except that trusts may not be entered therein (») 
 
 (a) 38-9 Vie, c. 87, s. 69. 
 
 (b) s. 83 (2). 
 
 (c) s. 5, 11. 
 
 (d) s. 5, 11, 68. 
 
 \e) s. 11, Rule 34, s. 83 (7). 
 (/) s. 66 (Notice), s. 17, 47. 
 Or) s. 72. 
 
 (h) s. 6, qualified in 8. 9. 
 
 (») s. 12. 
 
 0) Rule 6. 
 
 (*)s. U(fin). 
 
 (0 s. 66. 
 
 (m) s. 9. 
 
 O) s. 83 (1).
 
 INDISPUTABLE TITLES. 
 
 489 
 
 Mode of Regis- 
 tration. 
 
 (i). And certain entries as to the separate ownership of 
 mines (a), and as to freedom from certain claims (a), must 
 be made therein in appropriate cases; and any condition 
 legally capable of being annexed to land (as, that it shall 
 not be built on), may be entered as over-riding the regis! 
 title (b). The Registration of a Charge is not directed to 
 be made in a distinct book as under the Act of 1862 (c), but 
 is to be entered on the "register" (d), and particulars of 
 the charge are to be there stated (d), and a power of sale 
 is not implied, but must, with the particulars of it, be 
 entered on the register (d), on which also freedom from 
 certain charges must be noted (e). Satisfaction of a regis- 
 tered charge (/), or of an incumbrance notice of which was 
 entered on the first registration of the property subject to 
 it (g), and termination of "any lease of registered leasehold 
 land" (h), is to be noted on the register, and (in the first 
 case) the charge then terminates (/). The Court may 
 direct the rectification of the register by entering on it any 
 interest to which any person may be entitled (i). 
 
 The act contains subsidiary provisions (;'), especially as Subsidiary 
 to Notices &c. (k) for enabling persons interested in pre- Clauses - 
 venting registration to defend their rights, as to Evidence 
 (I), Costs (ot), the solution of doubts («), the binding of 
 parties under disability (0), the examination of Title (p), the 
 Production of Deeds (q), and Extent and Boundaries, (as to 
 which two last the register is not (r) to be conclusive). 
 
 (1) It is not clear whether all equitable interests, or merely those arising 
 from assent of the registered holder, are here referred to; nor whether all notice 
 of them is excluded, or merely such notice as would be inadmissible in respect 
 of legal limitations. 
 
 (a) 38-9 Vic, c. 87, s. 18. 
 
 (b) s. 84. 
 
 (c) Ante, p. 484 (»), 485 (a), 
 (rf) s. 22. 
 
 (e) s. 83 (8). 
 
 (/) s. 28. 
 
 (9) s. 19. 
 
 (/>) s. 20. 
 
 (i) s. 95. 
 
 0') s. 17, 47, 60 (notice), 70, 71 
 
 (production), 83, 85, 93, 97. 
 
 (A) s. 17 ( I), 66, 89-91. 
 
 (/) s. 17 (4), 47, 70-72, 74-7, 99- 
 103. 
 
 (m) s. 73, 96. 
 
 («) s. 5, 74-7, 94. 
 
 (o) s. 5, 76-7. 
 
 (j.) s. 17. 
 
 (9) s. 71. 
 
 (r) s. 83 (5). 
 
 62
 
 490 
 
 INDISPUTABLE TITLES. 
 
 Transmission 
 an the 
 Register. 
 
 And Local registers for particular districts are authorized 
 (a). A registered Charge implies suitable covenants (b),. 
 and remedies (c) T and a registered transfer of a Lease 
 implies covenants suitable to the case in which neither 
 party is trustee (d). The registered holder, and everyone 
 whom he or the court authorizes, or who is authorized by 
 General Orders, (but no other person,) may inspect the 
 register and the documents, and make copies and extracts 
 (e). And the first registered holder of a fee-simple or fee- 
 farm may demand (/) a "Land Certificate" stating that his 
 title has been registered, and whether as absolute, qualified,, 
 or possessory ; while the registered holder of a Leasehold 
 may demand an authenticated Copy of the lease (g), stating 
 whether the lessor's title has been guaranteed and how far, 
 and stating any other particulars entered on the register 
 (g); and one in whose favour a Charge has been registered 
 may demand (h) a Certificate of charge.. These certificates 
 are renewable if lost or returned (z), and are evidence (j). 
 On the Death of the recorded holder his Executor or. 
 Administrator shall, if the property be leasehold or a 
 charge (k), — and he whom the registrar may (after consid- 
 ering the beneficial interests) appoint, shall, if it be other- 
 wise (/), — (but, if the deceased was a Woman and left a 
 husband entitled to courtesy (m), jointly with that husband 
 (»)); — and on Bankruptcy or Liquidation of the holder the 
 bankruptcy &c -trustee shall (o) (i); — and on marriage of 
 a female holder her Husband may if the property be lease- 
 hold or a charge (p), but she and her husband may if it be 
 otherwise (n), (she alone being substituted if he dies before 
 
 (i) Cases in which the property does not pass to the Bankruptcy-trustee are 
 not expressly excepted. 
 
 (a) 38-9 Vic, c. 87, s. 11&. 
 
 (b) s. 24. 
 
 (c) s. 25-7. 
 
 (d) s. 39. 
 
 (e) s. 104. 
 
 (f) s. 10, 29. 
 
 (g) 8. 16, 34. 
 [h) s. 22 (fin)- 
 
 (») s. 78-9. 
 (j) s. 80. 
 (Jfc) s. 42. 
 (/) s. 41. t 
 
 (hi) Hxplained ants, p. 44\- 
 (n) s. 44. 
 (o) s. 43. 
 (p) 3. 45-
 
 INDISPUTABLE TITLES. 
 
 491 
 
 her (a)); — be substituted on the register; arid whoever is 
 thus substituted acquires the same powers as he would 
 have had if he had been a transferee for value (b), but 
 acquires no greater interest than his transferor has (b). 
 
 Interests in a registered property or in a registered charge 
 can be created and dealt with as if it had not been regis- 
 tered (c) (whether the disponor be the registered holder (c) 
 or not (c)), or by registered transfer (d), (until which the 
 transferor is deemed the holder (d)), or by deposit of the 
 land certificate (e) or (in case of leasehold) of the office copy 
 of Lease (f) ; and part of the registered land may be trans- 
 ferred on the register without the rest (g). 
 
 A married woman cannot dispense with separate examin- 
 ation (h) unless she was separately entitled (h); and 
 Committees and Guardians can act on behalf of persons 
 under other disabilities (i). 
 
 In order to protect unregistered interests the registered 
 holder may have a note entered on the register providing 
 that no dealing by him is to be registered unless some 
 specified reasonable condition be fulfilled (/); and such 
 condition may be that some person shall consent (_/), or 
 (when joint holders are registered) that at least a specified 
 number of joint holders shall be on the register (k); and 
 the court or registrar may, on the application of a party 
 interested, temporarily prohibit "any dealing with the 
 registered land or registered charge" (/). And any person 
 interested by Courtesy (m), or in Dower (m), or under a 
 Lease such as might .have been displaced by a registered 
 transfer (n) or was made subsequently to the "last transfer 
 
 Dealings on 
 the Register. 
 Generally. 
 
 By persons 
 under Disa- 
 bility. 
 
 Protection of 
 Unregistered- 
 interests. 
 
 (a) 38-9 Vic., c. 87, s. 44. 
 (6) s. 46. 
 
 (c) s. 49. 
 
 (d) s. 29 (Freehold), 34 (Leasehold), 
 40 (Charge). 
 
 («) s. 40. 
 
 r/;s.si. 
 
 (<7) s. 29. 
 
 (A) s. 83 (4), 87- 
 
 (i) s. 88. 
 
 (j) s. 58-9. 
 
 (*) s. 83 (3). 
 
 (./) s. 57. 
 
 (m) s. 52. See, for the definition of 
 Courtesy, p. 44 ; and, for that of Dower 
 p. 56. 
 
 (a) s. 50-51.
 
 492 
 
 INDISPUTABLE TITLES. 
 
 Priority of 
 registered 
 transactions. 
 Ownership 
 and Transfer 
 of it. 
 
 of land on the register" (1) (a) and which the holder 
 permits or the court directs to be notified (a), may have 
 such interest notified on the register. And any person 
 claiming an adequate interest may lodge a Caution 
 requiring that no registration of unregistered property shall 
 be made (b), or that no dealing with registered property 
 shall be registered (c), until notice has been given to him, 
 and a subsequent period (d) (which may be increased upon 
 security being given for the indemnification of any one 
 damaged by the delay (e)) has elapsed; but a person 
 lodging a caution causelessly is liable to damages (f), and 
 cautions have no further effect than is above stated (g). 
 
 The first registered holder (h), and the registered trans- 
 feree (i) or transmittee (j), of Land (A), or of a Charge (/), 
 alike become entitled to the land or charge with its rights, 
 privileges and appurtenances (k) ; and that in fee-simple (h), 
 in fee-farm (/), or for a leasehold interest (m), as the case 
 may be; free from all estates and interests (including those 
 of the Crown (»)); and from all estates and claims founded 
 on adverse possession (o) except (in the case of registration 
 with a possessory title) the claim of a person who was in 
 possession at the time of the registration (o); and (in the 
 case of a transfer for value) from all claims founded jDn 
 omission to serve notices (p); but subject to the Crown's 
 right to Forfeitures and Escheat (q) ; and to any person's 
 right (n) to Mines and minerals (r); and to certain charges 
 
 (i) The meaning of the expression "last transfer &c." does not seem clear (*). 
 
 (n) The ownership of these is however to be noted on the Register for the 
 information of Purchasers if the Registrar has satisfactory information respect- 
 ing it (t). 
 
 (a) 38-6 Vic, c. 87, s. 50, 51. 
 (6) s. 60, 61, 62. 
 
 (c) s 54, 60-1, modified by s. 64. 
 
 (d) s. 54, 62. 
 
 (e) s. 55. 
 
 (f) s. 56, 63. 
 (<7) s. 64. 
 (h) s. 7. 82. 
 (t) s. 30, 35. 
 O) s. 46. 
 
 (*) 8. 7, SO, 35. 
 
 (*) s. 82. 
 (m) s. 13, 35. 
 
 (n) s. 7 (fin), 13 (», 30-3, 35-8. 
 (o)s. 31. 
 (p) s. 92. 
 (q) s. 105. 
 
 (r) s. 7 (2), 18 (4), 13 (3), 30-3, 35-8. 
 (*) See Holt on the Land Transfer 
 Act, 87. 
 
 (<) 38-9 Vic, C. 87, s. 18 (c, d,fin).
 
 INDISPUTABLE TITLES. 4C3 
 
 originating in tenure (a) ; and to certain Taxes (a), to Tithe- 
 rent-charge (a), to Easements, to Franchises (a), and to 
 occupation Leases and tenancies for not more than 21 years 
 (a), unless (in each case) the contrary is expressed on the 
 register (b); and to (c) incumbrances previously noted on the 
 register; and (no doubt) to a transfer registered before 
 his own (if the registration of inconsistent transfers be 
 possible (d)); and (on registrations in fee or in fee-farm) to 
 claims on the register (e); and (on registrations in fee-farm) 
 to such conditions in the grant as are noted on the register 
 (f) ; and (on registration of a Leasehold) to the covenants 
 obligations and liabilities "incident" to it (g), and to such 
 of the claims affecting the lessor's title as are excepted on 
 the register (h); and, (when the lessor's title is not 
 guaranteed), to all other claims affecting it (*'); and (in the 
 case of a possessory title), to the enforcement of every 
 right &c. existing or capable of arising at the time of the 
 first registration (/); and (when the transaction is a 
 gratuitous transfer) to unregistered claims available against 
 the transferor (k) (notwithstanding which the transferee can 
 confer on a Purchaser for value the same priority as if he 
 himself had derived for value (k)); and (probably (/)) (in 
 case of any transfer) to claims of which the transferee has 
 Notice (for the act is silent on this point); and (in the case 
 of a transmission on Death or Bankruptcy) to all beneficial 
 interests derived under, or valid against, the deceased or 
 bankrupt (;«) (the transmittee however standing in other 
 respedls in the position of purchaser for value (m)); and (in 
 case of an original registration or gratuitous transfer) to 
 
 (a) 38-9 Vic, c. 87, s. 7 (2), 18, 13 (/) s. 82. 
 
 (3), 30-3, 35-8. (9) s. 13, 35. 
 
 (6) s. 7, 13 (3), 30-3, 35-8. (A) B. 36. 
 
 (c) s. 7 (1), 13 (2), 30, 35. And see, (»') s. 14, 37. 
 as to such incumbrances, ante, p. 491 (j) s. 8, 32. 
 (m-n) 492 (a). (*) S. 33, 38. 
 
 (d) See s. 29, 34. (I) Ante, p. 483 («)• 
 («) S. 9, 31. («) 8. 46.
 
 494 
 
 INDISPUTABLE TITLES. 
 
 Charges. 
 
 Transfer -of 
 item. 
 
 any right to set aside the disposition for Fraud (a); and 
 (in certain cases) to the rectification of the register (ft); and 
 to any charge registered before (or on the register expressed 
 to be Paramount to) his own (c). Registered charges rank 
 amongst themselves according to the date of their regis- 
 tration (d) unless the contrary be specified on the register 
 (e). The transfer of a charge may be made on the register 
 (f), but there is no enactment respecting its priority. 
 
 (a) 38-9 Vic, c. 87, s. 98. 
 
 (6) s. 95-6. 
 
 (c) See s. 7, 22, 28. 
 
 (rf)s. 28 (1). 
 (0 s. 22,30(1). 
 if) s. 40.
 
 495 
 
 CHAPTER LVI. 
 
 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 
 
 Dismissing now the cases in which priority is gained by Plan of this and 
 such diligence on the part of the preferred competitor as tl ? ree followin £ 
 renders his title more certain, we come to those in which 
 it is conferred owing to such negligence on the part of him 
 who is postponed as creates an appearance of continued 
 title in the common disponor, — a subject conveniently 
 divisible into four chapters, the first treating of the judic- 
 iary law on the subject, and the others of the three statu- 
 tory exceptions. 
 
 We have seen (a) that a representation, like a contract, Foundation of 
 transfers to the representee any interest which facts like e 
 those represented would shew him to be entitled to ; and 
 this holds if he either knows the representation to be 
 untrue (b), or means it to be acted on (c), or "so conducts 
 himself that a reasonable man would take the representation 
 to be true and believe that it was meant that he should act 
 upon it" (d); but (in each case) only if it actually is acted 
 on (e), for otherwise there is no valuable consideration (f) 
 to support the representation. 
 
 By an extension of this principle, — Conduct, by which Rule; with ex ~ 
 one person enables another to so act that a loss must ce P tl0D3 ' c - 
 result either to the former or to some third person, entitles 
 the third person to cast the loss on the former party (g), if, 
 
 (a) Ante, p. 79-82; and see Goodwin 
 V.Robarts, L. R. 1, Ap. 490. 
 
 (b) Carr v. L. $ N. W . R. Co, L. 
 R. 10 C. P. 316, /. 32-7. 
 
 (c) Freeman v. Co»ke, 2 Ex. 663, /. 
 23; C. v. L., 317, /. 310. 
 
 <^} F. t. C, 663, I. 25-8; C. v. L., 
 
 317, /. 11-17. 
 
 0) F v. C, C63, /. 24, 28; C. v. L., 
 316, /. 34, 317, /. 7-8, /■ 16-17. 
 
 (/•) Defined Anie, p. 142 (a). 
 
 (g) Sd. Arnold t. Cheque lik., L^ R>- 
 1 C. P. D. 587 r I. 21-30.
 
 498 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 
 
 he either authorized the act (a), or ratified it (b), or held 
 forth the party doing it as authorized (c) (even impliedly 
 (d)) to do it, or knew that the third person believed him to 
 be so (e), or acted in a manner likely to lead (and which 
 did lead) the third person to believe in some state of facts 
 (f) and to incur the loss in consequence (g), or (by the 
 conduct in question) neglected (i) a duty which he owed to 
 the third person, or to the public, or to some class to 
 which the third person belonged (h), or (by such conduct) 
 neglected a local or trade usage (»), or if the case be one 
 of those provided for by one of the statutes treated of in the 
 three following chapters. But when the ground of prefer- 
 ence is that the conduct amounts to negligence this rule 
 only holds if the negligence was the proximate cause of the 
 result (/), and "occurred in the transaction itself" (/). 
 c ,j As applied to the law of property this rule may be stated 
 
 applicable to thus: — A disponee for value of property, from one who has 
 
 with exceptions been enabled by the conduct of the owner to pretend that 
 &c. 
 
 (i) An opiuion has been judicially expressed (k) that this circumstance is not 
 sufficient when specific performance is sought: but this can scarcely be relied 
 on (I). 
 
 (a) Mc. Kenzie v. British Src. Co., L. 
 R. 6, Ap. 99. 
 
 (6) Mc. K. v. B., 99, 100, /. 4-6, 
 109. 
 
 (r) Sd. Cole v. North Western Bk., 
 L. R. 10 C. P. 362-3, 364-5. 
 
 (d) Mc, K. v. tf.,p. 100, /. 7-8. 
 
 (e) See Carr v. L. 8c N. W. R. Co., 
 L. R. 10 C P. 317, I. 11-17. 
 
 (J) Sd. in effect, in Mc. Kenzie v. 
 
 B. L. C, L. R. 6, Ap. 100, /. 3-4; in 
 Keith v. Burrows, L. R. 1 C. P. D. 734, 
 /. 30-4, and in Baxendule v. Bennett, L. 
 R. 3 Q. B. D. 532 ; and see Vixon v. 
 Muckleston, L. R. 8 Ch. 160, /. 2, Pick- 
 ering v Buck, 15 Ea. 38, and L. R. 2 
 
 C. P. 362. 
 
 (g) L. R. 6, Ap. 101, 109; L. R. 10 
 C. P. 318, /. 30-3. 
 
 (h) Dixon v. Muckleston, L. R. 8 Ch. 
 160, /. 3-8; Arnold v. Cheque Bk., L. 
 R. 1 C. P. D. 588; Carr v. L. N. W. 
 R. C, L. R. 10 C. P. 318, /. 25-33; 
 
 Sd. Swan v. North British A . Co., 2 H. 
 & C. 182, /. 17-23, (approved L. R. 1 
 C. P. D. 588, /. 4-9). As to what con- 
 stitutes a neglect of duty see the subse- 
 quent part of this chapter. It was on 
 the question what constitutes negli- 
 gence that Baxendale v. Bennett. L. R. 
 3 Q. B D. 530 turned, Johnson v Credit 
 Sfc. Co, L. R. 3 C. P. D. 42 (fin). 
 
 (i) Sd. Freeman v Cooke, 2 Ex. 
 663-4. 
 
 (» A moid v. Cheque Bk., L. R. 1 C. 
 P. D. 587, 588; Carr v. L. N. W. R. 
 C, L. R. 10 C. P. 318, / 28-30; Free- 
 man v. Cooke, 2 F.x. 654; Bk. Ireland 
 T. Evans's Charities, 5 H. L. 389. 
 
 (k) Swan v. Not th British Co. 2 H. 
 & C. 189; Johnson v. Credit ice. Co., L. 
 R. 3 C. P. D. 40 (fin). 
 
 (1) Mc. Kenzie v. British L. Co., L. 
 R. 6 Ap 100; Dixon v. Muckleston, L. 
 R. S Ch. 160.
 
 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 497 
 
 he was competent to deal with it, is entitled to priority over 
 the claims of the owner, if the conditions of the above 
 stated rule be present; but not if the conduct consist merely 
 in committing the indicia of ownership to a Trustee of the 
 property: — an exception which has led to great injustice, 
 and which seems the less reasonable when we consider 
 that the conduct to which the rule has been most frequently 
 applied has consisted in committing such indicia to the 
 person (not being a trustee) who afterwards makes the 
 disposition. 
 
 Of these indicia the most noteworthy is the Legal estate 
 (a), for a disponee obtaining a transfer of this from one to 
 whom the beneficiary has committed it is entitled to 
 priority over the claims of the latter (i) (b). And though 
 the same result generally follows from the rule (c) that a 
 transferee for value of the legal estate is entitled to priority 
 over a beneficial interest of which he has no notice, yet 
 there are instances falling within the exceptions to that 
 rule, and yet obnoxious to this. 
 
 So a seeming continuance of the beneficial ownership is 
 of weight ; for a Mortgagor, paying the mortgage-money to 
 a former holder of the mortgage who has transferred it to 
 one who has failed to inform the mortgagor of the transfer, 
 is entitled to credit against such transferee (d), though the 
 mortgage be on a tenement and therefore be not (e) one of 
 those choses in action the priority of dispositions of which 
 
 Details of the 
 rule as regards 
 each badge of 
 ownership. 
 The Legal 
 estate. 
 
 Seeming con- 
 tinuance of 
 Beneficial 
 ownership. 
 
 (i) To this head some writers have referred a case which merely decides, that 
 a transferee for value, who acquires the legal estate without notice of the fact 
 that his transferor was induced to make the transfer by the fraud of a third 
 person, is entitled to priority over a claim by the transferor to set aside the 
 transfer on account of that fraud (/). 
 
 (a) Defined ante, p. 376, /. 3. 
 
 (6) Adsetts v. Hives, 33 Bea. 52; 
 Hunter v. Walters, L R. 7 Ch. 75, in 
 which (esp. at p. 85 (in,)) the dictum 
 in Kennedy v. Green, 3 M. & Ke. 718, 
 I. 25-8, as to fraud preventing the 
 passing of the legal estate, is denied. 
 
 (e) Stated ante, p. 388-404. 
 
 Id) S or risk v. Marshall, 5 Madd. 475; 
 Williams v. Sorrell, 4 Vez. 389. But 
 in Withington v. Tate, (L. R. 4 Ch. 291) 
 the payment had been made to a per- 
 son not authorized to receive it. 
 
 (e) Ante, p. 398 (*). 
 
 (/) Hiorns v. Holtum, 16 Bea. 259. 
 
 63
 
 498 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 
 
 Seeming Free- 
 dom from 
 Incumbrances. 
 
 Possession. 
 
 depends on notice to the holder ; but this does not hold if 
 the mortgagor knew of the transfer from some other source. 
 
 And a seeming Freedom from Incumbrances is some- 
 times important ; for a Beneficiary, whose trustee has made 
 a purchase on his behalf, is exonerated from the lien (a) of 
 a Vendor who neglects to exact payment of the purchase- 
 money from the fiduciary purchaser while aware that the 
 latter is not entitled to retain it in his hands (b). 
 
 But a disponee of chattels, part of the estate of a 
 deceased debtor one of whose creditors has long delayed to 
 assert his claims, is not therefore entitled to priority over 
 those claims (c), though he gives value (c), unless (of course) 
 he purchases from the executor (d), or obtains the legal 
 estate (e) under circumstances (f) negativing the pre- 
 sumption of notice that debts exist. And amongst these 
 circumstances acquiescence by the executor seems to be 
 essential (g), for, when the subject was a fund in court (c) 
 and the disponee obtained a stop-order (a step equivalent 
 (h) to obtaining the legal estate), he was nevertheless held 
 (c) not to be entitled to any priority over the creditor's 
 claims. 
 
 And Possession of a Chattel has been said (i) to be a 
 badge of ownership, it having been on this ground that the 
 rule (j) by which the priority of disponees of choses in 
 action (k) is regulated was professedly (i) founded. But 
 this reason is not supported by the decisions ; for one who 
 derives title through an apparent owner, whom the true 
 owner has left in possession, is not therefore entitled to 
 priority over the true owner (/); though the subject be a 
 
 (a) For some account of Vendor's 
 Lien see ante, p. 328, 329. 
 
 (6) White v. Wakefield, 7 Sim. 401. 
 
 (c) Hooper v. Smart, L. R. 1 C. D. 
 90. 
 
 (d) See ante, 38 (e). 
 
 («) Under the rule stated ante, p. 388. 
 
 (/) Stated ante, p. 455 (/). 
 
 (</) Accordingly ante, p. 455, /. 25- 
 
 (A) Ante, p. 434 (e). 
 
 (i) Dearie v. Hall, 3 Russ. 22-4. 
 
 (j) Ante, p. 388 (i-l); 432 sqq. 
 
 (k) Denned ante, p. 3. 
 
 (/) Cochrane v. Rymil, 27 W. R. 776 
 a.; Meggy v. Imperial D. Co., L. R. 3 
 Q. B. D. 711 (esp. p. 716, 717, where 
 the doctrine is best stated) ; Taylor v. 
 Mc. Keand, L. R. 5 C P. D. 358.
 
 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 499 
 
 chattel (a) ; and though the later title be acquired without 
 notice (b) and for value (a) (whether by Disposition (a), or 
 otherwise); and though the true owner also derived under 
 the apparent owner (by Disposition (c) though unregistered 
 (d), Bankruptcy (e), or otherwise); unless, either the true 
 owner represented that the apparent owner was entitled to 
 act as owner (f), (an implied representation being sufficient 
 (f), especially when coupled with an express representation 
 by his trustee (f)); or the subsequent transaction is meant 
 to carry out a purpose for which the possession seems to 
 be held, (as, — when the subject of possession is a stock-in- 
 trade — a sale in due course of business of the articles 
 constituting it (g))', or the subsequent transaction is an 
 attempt to levy off the property, (in Bankruptcy (h) in 
 Administration (/) by Execution (j) or otherwise), a debt 
 contracted by the apparent owner while he was carrying 
 on business (by trading (k) or otherwise (/)) as if solvent 
 and with the consent (i) of the true owners, who were the 
 creditors under a former bankruptcy (whether entitled as 
 such (wt) or by the terms of Composition resolutions (n) (n); 
 
 (i) Negligence by the true owners does not (o) postpone them under this rule, 
 though it does (p) under the Order and Disposition clause. 
 
 (n) But subsequent creditors, claiming in a subsequent bankruptcy, are not 
 entitled to priority over (q), but only to equality with (q), creditors who might 
 have proved in a former bankruptcy, but who, instead, concurred in its being 
 annulled on the terms that they should delay 3 years and then be paid in full, 
 
 (a) Cochrane v. Rymil, 27 W. R. 776; ceded T. v. Mc.K. 
 
 Meggy v. Imperial D. Co., L. R. 3 Q. B. (h) Nicholson v. Anderson, 37 L. T. 
 
 D. 711; Taylor v. Mc. Keand, L. R. 5 N. S. 40. 
 
 C P. D. 358. (i) Troughton v. Gitley, Amb. 629; 
 
 (6) C. y. R. ; T. v. Mc.K. ; and (I sup- Tucker v. Hernaman, 4 D. G. M. G. 395. 
 
 pose) M. v. I. D. C. (j) Engelback v. Nixon, L. R. 13 C. 
 
 (c) C. v. R. (as to the mortgaged P. D. 645. 
 
 goods) ; T. v. Mc.K. (k) T. v. G. ; E. v. N. 
 
 (rf) C. v. It.; T. v. Mc.K. (0 T. v. H. 
 
 («) M. v. 1. D. C. (m) T. v. G. ; T. v. H. ; E. v. N. 
 
 (f) Bolland v. Dysart, L. R. 9 C. D. (n) N. r. A. 
 
 312. (o) Ford r. Caughey, L. R. 1 C. D. 
 
 (g) J Hard r. Simons (1st point), L. 521 overruling dictum in 3 K. & J. 485. 
 R. 16 C. D. 505; National #c. Bk. v. (p) See below, Ch. LIX. 
 Hampson, L. R. 5 Q. B. D. 1 77 ; Wal- (9) Russell r. Winn, L. R. 2 C. D. 424, 
 ker v. Clay, 49 L. J. C. L. 560; con-
 
 500 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 
 
 or the case falls under one of the enactments discussed in 
 the three following chapters. 
 Title-Deeds. So Title-deeds are an important badge of ownership ; but, 
 
 though there are diCta (a) that the lawful acquisition of 
 Title-deeds is of itself sufficient (when the equities are 
 otherwise equal) to confer priority, the more authoritative 
 decisions (b) seem to establish that this circumstance is 
 only available when combined with others. 
 
 Accordingly, a Disponee obtaining the Title-deeds from 
 his disponor, who has previously made an inconsistent 
 disposition to one who omitted to obtain them, is not 
 therefore entitled to priority over such former disponee (c); 
 though he himself gives value (c) without notice (c) ; and 
 though the property be such that its title depends on 
 documentary evidence (c), (as, a tenement (c)); and though 
 the disponor be then still in possession (c) (the previous 
 disposition having been a mortgage (c)); and though the 
 former disponee never inquired after the deeds (c); nor 
 caused any memorandum of his disposition to be noted on 
 them (c); especially (i) if, at the time of the earlier dispo- 
 
 while their fellow creditors should receive an immediate composition. Creditors 
 who accept a composition on the terms that they shall be entitled to seize their 
 debtor's goods on default are (of course) entitled to seize in priority to a person 
 to whom the debtor afterwards mortgages (d) those goods ; but such a right to 
 seize will not be implied from the fact that the creditors require a surety for 
 the last instalment only of the composition (e). 
 
 (i ) That fruud would be inferred from omission to inquire after the deeds, 
 unless one of the above or some other choumstaiices occurred to rebut this 
 inference, seems to be the opinion of an eminent text-writer (fj. 
 
 (a) Rice v. Rice, 1 Drew. 80. v. Elmes. 2 D. G. F. J. 578; Penner v. 
 
 (b) Coles v. Coles, 6 Hare 618, espe- Jemmet, 1 Fonbl. Eq. (5th Ed.), 166n.; 
 cially 523 /. 1-4; Evans v.. Bicknell, 6 Roberts v. Croft, 2 D. G. J. 1; Tourle v. 
 Vez. 183; Thorpe v. Holdsworth, L. R. Rand, 2 B. C. C. 651-2; Thorpe v. 
 7 Eq. 146-7. See also L. R. 7 H. L. Holdsworth, L. R. 7 Eq. 139. See how- 
 5 H) /. 3-16. ever Sharshaw v. Gibbs, (cited below); 
 
 (c) Bailey v. Fermor, 9 Pri. 262 (over- and, as to the Legal estate in the deeds, 
 ruling Goodtitlev. Morgan, 1 T. R. 755) ; see Harrington v. Price, 3 B. & Ad. 170; 
 Barnet v. Weston, 12 Vez. 130; Carter and the observations ante, p. 379, 380, 
 Carter, 3 K. & J. 648; Colyer v. Finch, (esp. notes (i) in those pages). 
 
 5 H. L. 928 (see esp. 19 Bea. 512); (d) Allard r. Simons, (2d point), L. 
 
 Dixon v. MucUeslon, L. R. 8 Ch. 155; R. 2 C. D. 512. [537. 
 
 sd. Kuans v. Bicknell, 6 Vez. 182-4; (e) Burrell r. Robinson, L. R. I C. D. 
 
 Farrow v. Rees, (1st point), 4 Bea. 18; (f) Fisher on Mortgages (2d. Ed.), 
 
 Harptry. Faulder, 4 Madd. 129; Hunt 848 (p, q).
 
 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 501 
 
 sition, the disponor was not (a), or was not solely (b), 
 entitled to the custody of them ; or if they related also to 
 other land then belonging to him (c); or if trust-terms and 
 charges on the property necessitated their retention (d); or 
 if the interest then disposed of did not carry a right to them 
 (e), (in which case, however, the subsequent disponee is 
 entitled to retain them (/)); or if the earlier disponee had 
 registered his disposition (g) (i); or if he had obtained some 
 of the deeds, and believed there were no others (h) ; or if 
 he had obtained enough of them to shew a title of consi- 
 derable length (as, 53 years), and had ascertained that the 
 disponor had been in possession 10 years (i), (circumstances 
 especially potent if the same solicitor negotiated the earlier 
 disposition for both parties (i)) ; or if he had obtained some 
 of them from his solicitor, and knew not that there were 
 others (j), (circumstances equally potent though that 
 solicitor was himself the disponor (j), and though the deeds 
 obtained were all early ones (j)) ; or if he had obtained a 
 parcel from his solicitor (k), and relied on a representation 
 by the solicitor that it contained "the deeds" (I), or "all 
 the deeds" {in), (circumstances equally potent though that 
 solicitor was also the disponor (k), and though the parcel 
 really contained none of the deeds (m), or only the early 
 ones (/)). But (even under the above circumstances) the 
 rule is reversed if the purpose of the earlier disponee in 
 leaving the deeds with the disponor was to enable him to 
 deal with the property, in which case priority is gained to 
 
 (1) The Court did not seem (g) to consider this material, hut possibly, in the 
 absence of other circumstances, it may be necessary lest the Court should infer 
 fraud. 
 
 (a) As in T. v. R. (Mortgaged Inter- (f) Wiseman v. Westland, I Y. & J. 
 est Reversionary). 117; Head v. Eqerton, 3 P. W. 280. 
 
 (6) As in C. v. C. (Tenant-in-com- {9) As in B. v. F. 
 
 mon). (A) As in P. v. /. 
 
 (c) As in B. v. W. (i) As in C. v. F. 
 
 (d) As in F. v. R. (./') As in R. v. C. 
 
 (e) As in H. v. F. (Annuity) ; T. v. (i) As in D. v. Jlf.j H. v. E. 
 H. (Charge) ; See observations in Whit- (/) As in D. v. M . 
 
 fitld v. Faussett, i Vez. 394. (m) A» in H. v. E.
 
 502 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 
 
 the full extent of the subsequent dealing (a), though it 
 exceed that authorized or intended (a), unless (I suppose) 
 the circumstances are such (b) as would have prevented 
 this priority if the earlier disponee had returned the deeds 
 to the disponor instead of originally leaving them with him. 
 And it has been held (c) that a disponee, lawfully acquiring 
 the Title-deeds from a disponor who holds the legal estate 
 and who has such possession (if any) as the subject is 
 capable of — (though it be an advowson not yet vacant (c) 
 (i)), is entitled, (though he do not himself obtain the legal 
 estate,) to priority over the claims of one with whom the 
 disponor (before obtaining the legal estate) had contracted 
 to deal (c) (n). And the Depositee of a Bond has been 
 held (d) entitled to priority over those on whom the obligee 
 had agreed to settle it, a doctrine which, though correct as 
 to the paper, (because the legal estate in that passes by the 
 deposit,) is questionable as to the money secured, unless 
 the parties deriving under the settlement were negligent in 
 not taking possession of the bond. 
 
 And again, a Disponee, obtaining the Title-deeds from 
 his disponor, who had previously made an inconsistent 
 disposition to one who, after receiving the deeds, had 
 returned them to the disponor, is not therefore entitled to 
 priority over such former disponee (e) ; though he himself 
 gives value (e) without notice (e) ; if the purpose for which 
 the deeds were returned was a proper one (e) : save that he 
 
 (i) The Court laid great stress on the fact that possession of the advowson 
 was in the disponor at the time of the later disposition, and this seems to imply 
 that he had presented to it. 
 
 (u) It has, however, heen said (/) that, in the case (c) cited, there was 
 " conduct amounting to acquiescence on the part of the first mortgagee," and 
 that " some act or default on the part of the first mortgagee " is a condition of 
 his being postponed. 
 
 (a) Perry-Herrick v.Attwood, 2 D. G. v. Stevens, 2 Coll. 20; Peter v. Russell, 
 
 J. 21. 2 Vern. 726; Martinez v. Cooper, (in 
 
 (6) Stated helow, next page (rf,/ ). which there were corroborative circum- 
 
 (c) Layard v. Maud, L. R. 4 Eq. 397. stances), 2 Russ. 198. 
 
 (d) Sharshaw v. Gibbs, (last point), (/) Thorpe v. Holdsworth, L. R. 7 Eq. 
 Kay. 333. 147, /. 2-3, 7-8. 
 
 («) Ex. Meux, 1 Gl. & J. 1 16 ; Stevens
 
 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 503 
 
 is so entitled if such former disponee knew that he was 
 acting wrongly in parting with them (a); or neglected to 
 require them again for a long period, (as, 3 or 4 years,) (b); 
 or purposed to enable the disponor to deal with the property 
 (in which last case priority is gained to the full extent of 
 the subsequent dealing (c), though it exceed that authorized 
 (c), unless that authorized was but a lease for the benefit of 
 all parties (d). 
 
 And much less is a disponee, obtaining the Title-deeds 
 from his disponor, who has previously made an incon- 
 sistent disposition, and who, at the time of the later 
 disposition, has possession of the deeds from some unex- 
 plained cause, entitled to priority over such earlier disponee 
 (5), though he himself give value (e) without notice (e). 
 
 And a disponee, obtaining both his disposition and the 
 Deeds through one who acts as agent for the disponor, 
 which disponor had previously, but without the agent, 
 made an inconsistent disposition to one who afterwards 
 entrusted the deeds to the agent that he might deal with 
 the property in his name, is not entitled to priority over 
 such earlier disponee (f), though he himself gives value (f) 
 without notice (f). 
 
 So, Registration is, when appropriate, a sign of ownership. Registration. 
 But a Disponee from one who has previously made an 
 inconsistent registrable disposition to one who has omitted 
 to register it, is not therefore preferred to such former 
 disponee (g); whether the register be that of ships (h), of 
 stocks (i), or of debentures (j), or the court-roll of a 
 
 (a) Dotvk v. Saunders, 2 H. & M. esp. 836. See also, as to Chattels, 
 
 242. Cole v. N. W . Bk., L. R. 10 C. P. 363. 
 
 (6) Waldronv. Sloper, 1 Drew. 193. (g) Horlock v. Priestley, i Sim. 75; 
 
 (c) Briggs v. Jones, L R. 10 Eq. 92; Cole v. Coles, 6 Hare 517; Donaldson 
 and, as to Bills of Exchange, Young v. Gillott, L. R. 3 Eq. 274; Keith v. 
 v. Grote, 4 Bing. 250; and Ingham v. Burrows, L. R. 1 C. P. D. 733; re 
 Primrose, 2 C. B. N. S. 82. Gen. South American Co., L. R. 2 C. D. 
 
 (d) Peter v. Russell, 2 Vera. 726. 337. 
 
 (e) Allen y. Knight, 16 L. J. Ch. (fc) K. v. B. 
 370, affg. S. C. 5 Hare 272. (i) D. v. G. 
 
 (/) Fox v. Hawks, L. R. 13 C. D. (;') Re G. S. A. Co.
 
 504 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 
 
 Mem. on Title- 
 Deeds. 
 
 Written 
 Authority. 
 
 Symbolical 
 authority. 
 
 manor (a), or otherwise; even though he himself gives value 
 (b) without notice (b) and registers (c) ; unless such former 
 disponee either intended, by the omission, to facilitate the 
 disponor's dealings (d); or owed, to the person dealt with, 
 or to some class to which he belonged, or to the public (e), 
 a duty to register it. 
 
 And, as we have seen (f), a Disponee from one who has 
 previously made an inconsistent disposition to one who has 
 omitted to note it on the title-deeds is not therefore entitled 
 to priority. But the court, when exercising any power 
 conferred on it by the Settled Estates Act, is to direct (g) 
 that a memorandum of the fact be entered on the "settle- 
 ment " (h), if this course seems to it practicable or expedient 
 for preventing fraud or mistake. 
 
 And a Disponee, obtaining his disposition through one 
 whom the owner had long before authorized to make the 
 disposition, and in reliance on a document by which that 
 authority had been conferred, (the owner having omitted 
 when he retracted the authority to take back the document), 
 is not (i) therefore entitled against the owner, though he 
 himself gives value (i) believing the authority to be still in 
 force (i) ; the reason probably being that the lapse of time 
 affords a presumption of revocation. 
 
 And a Disponee, obtaining his disposition through the 
 Secretary of a Company which entrusted to him their 
 Common seal, and in reliance on a power of attorney sealed 
 with that seal and attested as having been duly so sealed 
 by the Company and purporting to authorize the dispo- 
 sition (but which the secretary had really sealed without 
 
 (a) Horlock v. Priestley, 2 Sim. 75; 
 Cole v. Coles, 6 Hare 517. 
 
 (b) H. v. P.; C. v. C; Donaldson v. 
 Gillott, L. R. 3 Eq. 274; Keith v. Bur- 
 rows, L. R. 1 C. P. D. 733; re Gen. 
 South American Co., L. R. 2 C. D. 337. 
 
 (c) H. v. P.; and, in effect, D. v. G. 
 
 (d) Hooker v. Gumm, L. R. 2 Ch. 282, 
 287, 291. 
 
 (e) Cases cited in Appendix p. i ( b), 
 and cases in Addenda belonging to the 
 same. 
 
 (f) Ante, p. 500 (fin). 
 
 (g) 40-1 Vic, c. 18, s. 33. 
 (h) Defined, s. 2. 
 
 (i) Jones v. Stohwasser, L. R. 16 C. 
 D. 577.
 
 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 505 
 
 authority), is not (a) therefore entitled against the Company. 
 
 And a Transferee obtaining his transfer through the 
 Broker of the transferor, which transferor had signed it in 
 blank and entrusted it to the broker that he might transfer 
 other property for the transfer of which he represented it 
 to be necessary, is not (b) therefore entitled against the 
 transferor, though he himself gives value (b) and registers 
 (b) without notice (b). 
 
 And a Disponee from one whose concurrence as disponor 
 has been fraudulently obtained is not entitled against him 
 (c), though he himself gives value (c) without notice (c), as, 
 when the fraud is committed by one of two co-disponors 
 upon the other (c). 
 
 But a Disponee from one against whom inconsistent 
 rights had been acquired by a person who afterwards 
 signed an acknowledgement that those rights had ceased is 
 entitled to priority over those rights, if he gives value in 
 reliance on the acknowledgement. Thus, a purchaser from 
 one who himself purchased from a vendor who signed a 
 receipt for the purchase-money is entitled to priority over 
 that vendor's lien (d), unless the acknowledgement was a 
 mere conveyancing form (e). If, however, the acknow- 
 ledgement was signed in consideration of a substitutionary 
 security (even on the same property) the party who (by 
 signing it) lost one security and gained another is not 
 postponed in respect of the latter, and therefore virtually 
 retains his priority (/). 
 
 It appears from the foregoing statement that the circum- 
 stances are few under which a disponee is entitled to 
 priority over previously acquired rights on the ground that 
 
 Transfer in 
 Blank. 
 
 (a) Ireland ( Bk. of) v. Evans's Chari- 
 ties, 5 H. L. 389. 
 
 (6) Swan v. North British §c. Co., 2 
 H. & N 175. 
 
 (c) Cockell v. Taylor, 15 Bea. 103. 
 
 (d) Rice v. Rice, 2 Drew. 73, ex- 
 plained L. R. 7 H. L. 510, /.3-16; White 
 v. Wakefield, 7 Sim. 401; Smith v. 
 
 Evans, 28 Bea. 59, (see 64, /. 10.). 
 
 (e) Bowen v. Cobb, 19 W. R. 614, 
 Smith v. Evans, 28 Bea. 59; (both 
 extreme cases). 
 
 (/) Beckett v. Cordley, 1 B. & C. 357; 
 and see Hatchell v. Cremorue, L. & G. 
 t. PI. 236. 
 
 64 
 
 Actual concur- 
 rence. 
 
 Acknowledge- 
 ment that 
 earlier incon- 
 sistent rights 
 have ceased. 
 
 General excep- 
 tion to the role, 
 when he to 
 whom the 
 indicia of 
 ownership are 
 committed is 
 trustee.
 
 506 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 
 
 he who acquired them has been guilty of negligence. But, 
 even under circumstances under which he would appear 
 by that statement to be thus entitled, he will not be so 
 against a Beneficiary (a) or co-fiduciary (b) of his disponor, 
 whose negligence has consisted in committing to that 
 disponor the indicia of ownership, whether this was done 
 by putting them into his possession (c), or by permitting 
 him to acquire them by purchasing the property in his own 
 name (d), or in the names of himself and such beneficiary 
 or co-fiduciary jointly (e); and whether he be a Trustee (/) 
 a Mortgagee (g), a Bailee on hire (h), or otherwise; and 
 whether the badge of ownership committed to him be a 
 Transfer of the Legal estate (j) without disclosure of the 
 trust (i), or Possession (j) (alike of land (k) or chattels (I)), 
 or the Documents of title (m), or Registration (n) (even in 
 the case of stock (n), though the Company (i) themselves 
 were the beneficiaries (n), and could therefore have inserted 
 a notice of their rights on the register); and though the 
 indicia were committed to but a single fiduciary (o) ; and 
 though he was also solicitor to the beneficiary (p); and 
 
 (i) The Directors of a Company are entitled to permit a transfer of shares 
 to be made without production of the 6hare certificates (q). And if the 
 person mentioned on the certificate is not really the legal holder they are 
 liable to any person who purchases the stock in reliance on the certificates (r). 
 
 (a) Bradley v. Riches, (1st point), L. (g) 0. t. B. 
 
 R.9 C. D. 189; Cooper v. Willomat, 1 (A) C. v. W. 
 
 C. B. 672; Cory v. Eyre, 1 D. G. J. S. (») B. v. R.; M. v. T- S. v. /.; S. 
 
 149; Manningtonv. Toleman, 1 Coll. 670; U. C. v. Q. 
 
 Ortigoza v. Brown, 38 L. T. N. S. 145; (j) C. v. W.; M. v. T. 
 
 Shropshire Union Co., v. Queen, L. R. (k) M. v. T, 
 
 7 H. L. 505, 607 ; clearly assumed in (/) C. v. W. 
 
 Singer M. Co. v. Clark. L. R. 5 Ex. D. (m) B. v. R.; C. v. E.; C. v. E. C. 
 
 42 (med.); Storehouse v. Jersey, 1 J. & R.;M. v. T.; O. v. B. ; S. v. /.; S. U. 
 
 H. 721. C. v. Q. (p. 509). 
 
 (6) Cottam v. Eastern C. R. Co., 1 J. (n) S. U. C. v. Q. 
 
 & H. 243. (o) B. v. R.; C. v. E.- C. v. E. C. 
 
 (c) C. v. E. C. R.; C. v. W.; O. v. R.; M. v. T.; O.y. B.; S.v. J.; S. U. 
 B.; S. U. C. v. Q C. v. Q. (p. 449, 508). 
 
 (d) B. v. R.; C. v. E.; M. v. T.; S. (p) C. v. E. (p. 168); S. v. /. 
 
 v. /. (?) S. U. C. v. Q. (p. 509 /. 24-7). 
 
 (e) C. v.E.R. C (r) Re Bahia If S. F. R. Co. v. L. R., 
 
 (f) B. v. R.; C. v. E.; C. v. E C. 3 Q. B. D. 584. 
 R.; M. v. T.- S. v. /. ; S. U. C. v. <?.
 
 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 507 
 
 though the beneficiary never exercised any supervision 
 over his conduct (a) ; and though he was not originally a 
 fiduciary but made himself so by Declaration of trust (b), 
 and though he delivered to the subsequent disponee the 
 documents of title (c) (unless these contained a repre- 
 sentation that the property would pass by delivery of them 
 (d)), or the possession of the property (<?); and though 
 the Beneficiary was absolute owner (/) and free from 
 disability (/) and therefore did not need a Trustee; and 
 though the subject was one in which beneficial interests 
 are not easily discoverable, (as Stock (g) or Debentures (h) 
 or Corporeal chattels («)); and though the fiduciary had 
 previously committed a Breach of Trust (J) (of which the 
 beneficiary when he entrusted the indicia of ownership to 
 him was aware), and might therefore be presumed likely to 
 deal fraudulently with the property, (especially if he had 
 afterwards given an explanation (k)); and though the 
 subsequent disponee has no knowledge nor means of 
 knowledge of the beneficiary's rights (/) and pays full 
 value (;«) ; and though he obtains a document purporting 
 to pass the Legal estate to him, but which, (as regards the 
 signatures of all the holders except that one to whom the 
 indicia had been committed,) is a forgery (n) (i); and 
 
 (i) In this case the Court pointed out that the purchaser had assumed that 
 the vendor was authorized to represent his co-trustees. He had, however, not 
 exactly assumed this, but had treated the signatures, which afterwards turned 
 out to be forged, as proof of it; and the co-trustees had, by committing the de- 
 bentures to the vendor, enabled the latter to supply this evidence of agency. 
 A purchaser, however, is generally entitled to see his vendor sign the purchase 
 deed (o). 
 
 (a) C.v.E. (p. 169); and probably of Bailment). 
 C. t. E. C. R., and O. v. B. (g) O. v. B.; S. U. C. v. Q. 
 
 (6) Sd. C. v. E. (p. 165 I. 1-9). (/') C. v. E. C. R. 
 
 (c) B. v. R., C. v. E. (p. 170) ; C. v. («') C. v. W. 
 
 E. C.J?.; O.v.B.; S.v. J.\ S. U. C. v. (j) S. U. C. v. Q. (p. 499, 508 L 19, 
 
 Q. (Stock Certificates) . p. 509). 
 
 (d) Goodwin v. Robarts, L. R. 1 Ap. (*) S. U. C. v <?. (p. 509 /. 24-9). 
 490; Rumball v. Metropolitan Bk., L. R. (/) B. v. R.; C. v. B.; C. v. -E. C. R., 
 2 Q. B. D. 194. C. v. \V.; M. v. J'.; O. v.B.;S. U. C. 
 
 (e) C. v. W. v. Q. 
 
 (f) B. v. R. ; C. v. E. (as to a Share) ; (m) So in all these cases. 
 S. U. C. v. Q. He was also owner and (n) C. v. E. C. R. 
 
 free from disability in O. v. B. (a case (o) Viney v. Chaplin, 2 D. G. J. 468. 
 of Mortgage), and in C. v. W. (a case
 
 508 ENABLING A PERSON TO CAUSE LOSS TO ANOTHER. 
 
 though he duly Registers (a), (the Register being one 
 ordinarily supposed to confer a perfect title, as, that of 
 railway debentures (a)); and though the fiduciary, when 
 he purchased the property, professed to be purchasing it 
 on his own account (b), and did (in fact) advance part of 
 the money (c), and the beneficiary did not know on what 
 property his money had been invested (d), nor whether in 
 his own name or in that of a trustee (d), (especially if 
 his solicitor knew (e) (i), and was a party to the trans- 
 action). But the beneficiary is postponed if he be present 
 at the subsequent dealing and do not forbid it (f), or if his 
 purpose in committing the indicia of ownership to the 
 trustee was to enable the latter to deal with the property 
 (g) even in a different way from that in which he afterwards 
 does deal with it (g); and (of course) he may be postponed 
 by conduct, misrepresentations, &c, (h). 
 
 (i) The Court does not seem to have relied on the solicitor's knowledge. 
 
 (a) C. v. E. C. R. {/) Gregg v. Wells, 10 A. & E. 90. 
 
 (6) B.w.R; C.v.E.; M.v. T.; S. (g) Perry -Herrick, v. Atwood, 2 D. 
 
 v. /. G. J. 21 ; explained 1 D. G. J. S. 170. 
 
 (e) B. v. i?.; C. v. E.\ S. v. /. {h) Said, S. U. C. v. Q., (p. 506 
 
 (d) C. v. E., (p. 158 (>.);) and (it (fin), 509 (fin)); said, Evans v. Bich- 
 seems) S. v. /. nell, 6 Vez. 191 (fin). 
 
 (e) C.V.E.; S.y.J.
 
 ( 509 ) 
 
 CHAPTER LVII. 
 
 THE FACTORS' ACTS. 
 
 To remedy some of the injustice occasioned by a strict 
 adherence to the principle (a) that priority is conferred by 
 precedence in time, several acts of parliament have been 
 passed, which, though they might with propriety have 
 been inserted in the preceding chapter, can be more readfly 
 referred to and understood if grouped separately. Of these 
 I will- first take the Factors' Ads; for, though they treat 
 only of chattels, I have been induced, by the admirable 
 manner in which they illustrate principles, to give them a 
 place here. They are very involved, but seem substantially 
 to enact that, an Apparent right to dispose of goods (i) 
 entitles (b) the disponee of the person invested with it to 
 priority over the owner's claims ; if it arise from shipment 
 of the goods in the name of that person (c) (effected by 
 himself (c)) when entrusted (d) with the goods for the 
 purpose of consignment or sale, or effected by another (c) ;) 
 or from consignment (e) or entrustment (e) of the goods, or 
 entrustment and possession (f) of their documents of title 
 (g), to him; or from omission (h) by the true owner (after 
 
 (i) That is "goods wares or merchandise" (i), though not particularized (j). 
 
 (a) Ante, p. 345. v. Barrow, L. R. 5 Ap. 874, 677, 678; 
 
 (b) 6 Geo. IV, c. 83, (hereinafter Johnson v. Credit L., L. R. 3 C. P. D. 
 designated A.); 6 Geo. IV, c. 94, 43; Funtes v. Montis, L. R. 4 C. P. 93; 
 (hereinafter designated B.); 5-6 Vic. Slee's Case, L. R. 15 Eq. 69. 
 
 c. 39, (designated C); 40-1 Vic. c. (c) B. s. 4. 
 
 39, (designated D). The acts are (/) B. s. 2. 
 
 elaborately discussed in Cole v. North (g) Defined, B. s. 2; C. s. 4. 
 
 W. Bk., L. R. 10 C. P. 360-74. (A) D. s. 3. 
 
 (c) A. s. 1; B. s. 1. (») These words are repeated through- 
 («0 As to the meaning of "entrusted" out acts A. & B. 
 
 see C. s. 4, Cole v. North W. Bk., L. {j) Vickers v. Hertz, L. R 2 Sc. 113. 
 R. 10 C. P. 354; approved, City Bk.
 
 510 THE FACTORS ACTS. 
 
 he has become such by purchasing the goods) to obtain the 
 documents of title (a) from his vendor, who thus becomes 
 apparent owner (a) ; or from omission by the true owner 
 of a lien on the goods (which he has acquired by selling 
 them), to withhold the documents of title from his purchaser, 
 who thus becomes apparently free from this lien (b) of the 
 vendor. And, when the disposition is a sale since ist 
 October 1826 (c), or a pledge since 30th June, 1842 {d), 
 the doctrine applies to the case of entrustment or consign- 
 ment though the disponee knows his disponor to be but an 
 agent ; and though the entrustment was merely for comple- 
 tion of a specific contract (e) ; and though the disposition 
 (if a sale) be for an antecedent debt (j); and though (when 
 the disposition was made since 10th August, 1877 (g) by 
 an agent in possession of the goods or documents) his 
 authority had been secretly revoked (h). But, when this 
 priority is claimed on the ground of shipment in the name 
 of the apparent owner, it is conferred only on liens granted 
 by him to or for the consignee for advances in money or 
 negotiable securities (i); and, when it is claimed on the 
 ground of consignment or entrustment it is only conferred 
 on sales (j) made in the ordinary course of business (j) (1) 
 since ist October, 1826, by an agent entrusted (k) with (or 
 being consignee of) the goods (j); and on sales and dispo- 
 sitions made since that day, by a person entrusted with, 
 and in possession of, the documents of title (k); and on 
 securities given since that day by a person so entrusted 
 and in possession for fresh advances in money or negotiable 
 securities (/); and on securities given since 30th June 1842, 
 
 (1) But a sale otherwise, or a pledge, is effectual to the extent of the agent's 
 interest (m). 
 
 (a) Defined, B. s. 2; C. s. 4. (h) D. s. 1, 2. 
 
 (6) D. s. 4. (») B. s. 1. 
 
 (c) B. s. 4. (j) B. s. 4. 
 
 (d) C. s. 1. (fc) See ante, p. 509 n. (<f). 
 
 (e) Viclcers v. Hertz, L. R. 2 Sc. 116. (/) B. s. 2, (in which the documents 
 (/) Thackrah v. Fergusson, L. R. 25 of title are enumerated). 
 
 W. R. 307. (m) B. s. 5. 
 
 G?) D. s. 6.
 
 THE FACTORS' ACTS. 511 
 
 (by agents entrusted (a) since that day with the possession 
 of documents or goods (b)) for fresh or continuing advances 
 (b), or (up to its value) in substitution for some other 
 similar pledge (c); and it is not conferred, on the ground 
 of shipment, if the disponee had notice that his disponor 
 was not owner (d); nor on any other ground, if he had 
 notice that the disposition was unauthorized (e). But 
 entrustment is frequently to be presumed (f). 
 
 The extinguishment (by transfer of documents of title) 
 of a right to stop in transitu is also provided for (g). 
 
 (a) See ante, p. 509 n. (d). (e) B. s. 1, 4; C. s. 3; D. s. 3, 4. 
 
 (6) C. s. 1 ; explained by B. s. 3. (/) A. s. 1 ; B. s. 1 ; C. s. 4. 
 
 (c) C. s. 2. (9) D. s. 5. 
 
 (d) B. s. 1.
 
 ( 512 ) 
 
 CHAPTER LVIII. 
 
 THE BILLS OF SALE ACTS. 
 
 of the rule. 
 
 Rule. The next statutes to which I shall advert are the Bills of 
 
 Sale Acts (a), by which it is (in effect) enacted that a 
 Disponee (b) or Creditor, claiming against (c) corporeal 
 chattels (d) in the possession or apparent possession (e) (i) 
 of the disponor or debtor (f), or which would have been so 
 but that they were in the custody of the police (g), is 
 entitled (f) to priority over one with whom the disponor or 
 debtor (or the sheriff &c. acting under an execution against 
 him (f)) has previously dealt respecting them, and (possibly 
 
 Applicability (Ji)) even over the trustee in his Bankruptcy; and this, 
 alike as regards the property (f), and the right of a 
 possession (i), in them; and whether the postponed 
 disposition was absolute (j), or not (j); and whether a 
 Trust was imposed by it (j), or not (j); and though the 
 subjects dealt with were Abroad (k), or at Sea (k); or 
 consisted in Fixtures (/) or growing Crops (I) ; and though 
 
 (i) Entry by a Receiver puts an end to this apparent possession (m). 
 
 (a) As to dispositions before 1879 L. T. N. S. 40; Gough v. Everard, 2 
 (in Ireland 1st Nov. 1879), 17-18 Vic, H. & C. 1. 
 c. 36 (England), and c. 55 (Ireland), (/) 0. s. 1 ; N. s. 8. 
 hereinafter referred to as "0". As to (g) Newsham v. Wood, 40 L. T. N. 
 dispositions since that date, 41-2 Vic, S. 104. 
 
 c. 31 (England), and 42-3 Vic, c 50. (ft) See 32-3 Vic, c. 71 (E.) s. 83 
 
 (Ireland) hereinafter referred to as (3); 20-1 Vic, c 60(1.) s. 269. 
 
 "N". Each Irish Act seems to be an (t) O. s. 1 ; N. s. 8 ; Odell r. Walden, 
 
 exact copy of the corresponding Eng- L. R. 10 C. D. 83, /. 17-18. For the 
 
 lish one. distinction between property and right 
 
 (b) N. s. 10 (last clause). of possession (sometimes respectively 
 
 (c) O. s. 1 ; N. s. 8. termed "general property" and "special 
 
 (d) Defined ante, p. 1, 2. For a property") see ante, p. 377. 
 particular statement of the kinds (j) O. s. 1; N. s. 3. 
 affected by the Bills of Sale Acts, see (*) O. s. 7 (1); N. s. 4 (1). 
 below, in this Chapter. (/) O. s. 7 (2); N. s. 4 (2); qualified 
 
 (e) Defined O. s. 7 (3); N. s. 4 (3); below in this Chapter. 
 North E. Ry. Co. v. Spark, 37 L. T. (m) Taylor r. Eckersley, L. R. 5. C 
 N. S. 143; Nicholson v. Anderson, 37 D. 740.
 
 THE BILLS OF SALE ACTS. 513 
 
 they were only dealt with by anticipation, before the 
 disponor had acquired them (a); and though the Beneficial 
 (b) interest only in them was affected by the disposition (c) ; 
 or a mere Charge (c), Agreement (c), or Declaration of 
 trust (d), (whether intended to be followed by a formal 
 document (d), or not (d),) was created; or a Licence to 
 take Possession (d) as security for a debt (e) conferred; or 
 a power to Distrain (f) (i) as security for a debt or advance 
 (f) or for the interest thereon (f) conferred or agreed to be 
 conferred (f) ; by it ; unless (in this last case) the power 
 was conferred before 1879 (g) (in Ireland 1st November 
 1879 (£))> or was meant merely to secure a fair rent at 
 which a mortgagee in possession may have let the premises 
 (/), or was conferred &c. by a mining lease (/)); and 
 though the dealing was expressed merely in a Receipt for 
 purchase-money (h) (11), or in an Inventory with receipt 
 
 (I) This extension of the rule has been objected to on the ground that it will 
 necessitate the registration of Mortgages containing a power to distrain. But 
 this will not be necessary if the mortgaged premises afford adequate security, 
 for in that case it is unnecessary that the mortgagee should take priority in 
 respect of the chattels seized under the distress; and the Act would be incom- 
 plete without this extension, for although a creditor generally knows whether 
 the premises occupied by his debtor belong to the latter, and that if they do not 
 they are subject to the landlord's right to distrain, he does not generally know 
 whether they are in mortgage, nor whether, if they are, the mortgage contains 
 a power to distrain. 
 
 (II) But only if such Receipt formed part of the transaction of sale («), or 
 (perhaps) if the disposition was made since 1878 (in Ireland 31st Oct. 1878) 0)- 
 
 (a) Said, Holroyd v. Marshall, 10 H. it was conferred by an Attornment 
 
 L. 227. clause), L. R. 10 C. D. 352 (fin), 355 
 
 (6) Explained ante, p. 375. (fi H )j and see Keicitt v. Garrud, L. R. 
 
 (c) N. s. 4 (1); Mackay v. Jeavons, 16 C. D. 522, 533. 
 
 L. R. 8 Ch. 647; Edwards v. Edwards, (h) Odell v. Walden, L. R. 10 C. D. 
 
 L. R. 2 C. D. 291; and the authorities 76, (seemingly overruling the three 
 
 in next note. cases of Byerley y. Prevost, L. R. 6C» 
 
 (d) 0. s. 7 (I); N. s. 4 (1). P. 144, Bamfield v. Setcport, 20 W. R. 
 
 (e) Authorities in preceding note; 925, and Graham v. Wilcockson, 46 L. 
 and Newitt v. Garrud, L. R. 16 C. D. J. C. L. 55. 
 
 522, 533. (0 Woodgate v. Godfrey, L. R. 5 Ex. 
 
 (/) N. s. 6. D. 24. 
 
 (g) Stockton Iron ifc. Co., (in which (» N. s. 4 (1). 
 
 65
 
 514 THE BILES OF SALE ACTS, 
 
 attached (a); and (perhaps) even though it was oral (b); 
 and though the real possession is in the postponed 
 disponee (c) ; and though the apparent possession consists 
 merely in occupation of the place where the goods are (d), 
 or in the control of the room (at any person's house) in 
 which they are stored (e), or in the use of them at any 
 place (c) ; and though that possession is held merely through 
 a Bailiff (/) ; and though the continuance of possession in 
 the disponor is consistent with the terms of the disposition, 
 as, when that was a mortgage (g) (a point on which this 
 statute differs from that (h) by which dispositions are post- 
 poned to subsequent creditors on the ground of fraud) ; and 
 though the purpose for which possession was left with the 
 disponor was merely that he might use the chattels (they 
 being household furniture) as partial remuneration for 
 managing a business on behalf of the disponee (z); and 
 though the Consent of the postponed disponee to the 
 disponor's possession has never been gained (/), or has 
 been withdrawn (k) ; and though the possession has been 
 formally taken by the postponed disponee {I) (i); and though 
 the (m) postponed disposition falls under the Protecting 
 
 (i) A taking out of the goods to pack them in vans for removal changes the 
 apparent as well as the formal possession, and thus renders the rule inappli- 
 cable («). 
 
 (a) Cooper r. Baum, (1st appeal), L. (h) 13 El. c. 5, explained below Ch. 
 
 R. 10 C. D. 313; and (since 1879), N, LXI. 
 
 6. 4 (1). j> (i) Pickard v. Marriage, L. R. 1 Ex. 
 
 (6) Re Trethowan, (L. R. 5 Eq. 559), D. 364. 
 
 was decided on another ground as well (j) Said, and involved, in Ancona v. 
 
 as on that stated in the text, and was Rogers. 
 
 compromised on appeal, and seems (i) Ancona v. Rogers. 
 
 irreconcilable with Woodgatev. Godfrey, (/) N, s. 4 (3) ; Lewis r. Henderson, L. 
 
 L. R. 5 Ex. D. 24. See also (as to R. 6 Ch. G26; Homan v. Vining, L. R. 
 
 the principle involved), ante, p. 406 10 Eq. 63; Nicholson v. Anderson, 37 L. 
 
 (n). T. N. S. 40; modified in Vicarino v. 
 
 (c) Ex. National Sfc.A.Co.r. Francis, H oiling sworth, 20 L. T. N. S. 362. 
 
 L. R. 10 C. D. D. 408. (m) Ex. Payne r. Cross. 11 CD. 
 
 (tZ) N, s.4(3). 552-3; Ex. Attwater, L. R. 5. C. D. 
 
 (e) Ancona v. Rogers, L. R. 1 Ex. 285. 27. 
 
 (f) A . v. jR., p. 292. (») Jay v. Blenkhorn, L. R. 9 Ch. 702. 
 (<7) So in most of the cases cited.
 
 THE BILLS 01 ; SALE ACTS. 515 
 
 Clauses (a) of the Bankruptcy Acts; and though the 
 creditor (when he who seeks priority is a creditor) knew of 
 the postponed disposition before the disponor became 
 indebted to him (b). But a disposition is postponed by Conditions of 
 these acts only if it was made since 10th July (in Ireland 
 ist November) 1854 { c )> an< ^ only ^ chattels capable of 
 transfer by delivery (d), fixtures (e), or growing crops (e), 
 are its subject-matter ; and only if some interest in them, 
 legal or beneficial (/), passed by it (g); and only if the right 
 to seize and take possession (at least after a time and after 
 notice) was conferred by it (h), or flowed from it (*'); and 
 only if the possession or apparent possession continued 7 
 (_/') business (k) days, (or, in case of a disposition made 
 before 1879, in Ireland ist November, 1879, 21 (/) days,) 
 after the making of the disposition, (or, if it was one of a 
 series, after the making of the first of the series (lit) (1)); 
 and only (it seems) if the disposition was capable of regis- 
 tration, that is, was made-or evidenced by Writing (u) (11); 
 and only in favour of Bankruptcy- (0), Liquidation- (0), and 
 
 (I) Against dispositions made before 1 879 this holds in favour of Bankrnptcy- 
 (p), but not in favour of Execution- (7), creditors. 
 
 (II) The reasons already (r) urged why dispositions registered under other 
 Acts should be preferred to earlier unregistrable dispositions apply also to dispo- 
 sitions registered under this Act. Besides, if oral dispositions cannot be post- 
 poned by this act this Act may be evaded, for Certainty, (the only advantage 
 desirable from writing,) might be attained by branding the initials &c. of the 
 mortgagee on the chattels in the presence of witnesses. 
 
 (a) 32-3 Vic, c. 71 (E.), s. 94. 95; R. 7 Q. B. 533. 
 
 35-6 Vic, c. 58 (.1), s. 55; 20-1 Vic, (A) 0. s. 1 ; N. s. 3; Watson r. Live, 
 
 c. 60, s. 328-32. L. R. 5 C. D. 35. 
 
 (6) Edivardsv. Edwards, L. R. 2 C. (»') Edwards v. Edwards, L. R. 2 C. 
 
 D. 295. D., especially 294 /. 11-12. 
 
 (c) O. s. 1 ; Re Shaw, 36 L. T. N. (j) N. s. 8. 
 
 S.805; contra Wordallv. Smith, I Camp. (fc) N. s. 22. 
 
 332. (0 0. (preamble), and s. 1. 
 
 {d) 0. s. 7 (2); N. s. 4 (2). As to (m) N. s. 9. 
 
 what Chattels are tlrus capable, see, («) See, Woodijale v. Godfrey, L. R. 5 
 
 as to the Legal estate, ante, p. 428 Ex. D. 24; and Cooper r. Baum, L. It. 
 
 (d), 429 (&/), as to the beneficial, 125 10 C. D. 313. 
 
 (i), 126(0- [»• (o) O. s. 1 ; N. s. 8. 
 
 (e) Ante, p. 512 (/) below, p. 516 (/- (p) Furber v. Pellew, L. R. 6 C. D. 
 
 (f) Ante, p. 375. 181. 
 
 (#) Uranium r Griffils, L. R. 2 C. P. (</) Ramsden v. Luptoii, L. R. 9 Q. B. 
 D 214 /. 7-9; Human v. Broadbeni, L. 17. 
 R, 12 Ki|. 598; Thompson v. Cohen, L. (r) Ante, p. 412 (11).
 
 516 THE BILLS OF SALE ACTS. 
 
 Execution- (a), Creditors, Trustees for creditors generally 
 (b), and, (if the disposition was made since 1878, in Ireland 
 31st October 1879,) subsequent disponees (c); and (when 
 Used in favour of such subsequent disponee) only if a creditor 
 Exceptions to of the class just mentioned is also claiming priority (d) ; and 
 not if the subject-matter was situate in Scotland (e), or (it 
 seems) in any part of the British Empire (e) except (each as 
 regards its own register) England, Wales, and Ireland; 
 nor if it be a Fixture (f) or Growing Crop dealt with along 
 with an interest in the tenement on which it is fixed or 
 grows (g) (1), (unless it fall under the definition of Trade 
 Machinery given in the act (A)); nor if (on a disposition 
 before 1879) it be Growing Crop at all (i); nor if it be a 
 Ship or Vessel (J) (11), (though unfinished (k), and though 
 not falling under the ship-registry Acts (/)); nor if it be 
 Farm-Stock or -Produce (m), (unless it may, consistently 
 with agreement and usage, be removed (111)); nor if it be 
 
 (I) As to disposition of Fixtures before 1879, sec the cases in the note (n) 
 modified by the recent enactment (©). But, as to dispositions made before 1879 
 of Machinery, see the cases in note (p). 
 
 (II) Literally the exception is confined to transfers and assignments of a Ship 
 &c, but I conceive that every kind of disposition is included in these words. 
 
 (a) O. s. 1; N. s. 3. (0 Payne r. Cross, L. R. 11 C. D. 
 
 (6) 0. s. 1 ; N. S. 8; General Furnish- 544. 
 
 ing Co. v. Venn, 2 H. & C. 153. (j) 0. s. 7 (1) ; N. s. 4 (1). 
 
 (c) N. s. 8; As to dispositions before (it) Winter r. Softley, L. R. 20 Eq. 
 that time see Edwards v. English, 7 E. 746; Swainston v. Clay, 32 L. J., Cb. 
 & B. 564; and Richards v. James, L. R. 503. 
 
 2 Q. B. 291 (the head-note to which is (/) Union Bk. v. Lenanton, L. R. 3 
 
 imperfect); Begbie v. Fenwick, 20 W. R. C. P. D. 243. 
 
 269 ; Hollingsworth v. White, 6 L. T. N. (m) O. s. 7 (2) ; tf. s. 4 (2). 
 
 S. 604. (n) Meux v. Jacobs, L. R. 7 H. L. 
 
 (d) Lyons v. Tucker, L. R. 6 Q. B. 481; Brown r. Reed, L. R. 9 C. D.389; 
 D. 660, cmpd. with Richards v. James, Re Eslick, L. R. 4 C. D. 503; Re Treth- 
 L. R. 2 Q. B. 285, as extended by Ed- owan, L. R. 5 C. D. 559 ; Barclay v. 
 wards v. English, 7 E. & B. 364, and Joyce, L. R.9 Ch. 576; Hawtry v. But- 
 by Payne v. Cross, L. R. 11 C. D. 539. lin, L. R. 8 Q. B. 290; Daglish r. 
 
 («) Cooie v. Jecks, L. R. 13 Eq. 597; Wilde, 29 L. T. N. S. 198, Longbottom 
 
 and see ante, p. 512 (*). v. Berry, L. R. 5 Q. B. D. 290; Hoi- 
 
 (f) Defined ante, p. 5-6, and Bain v. land v. Hodgson, L. R. 7 0. P. 328: 
 
 Brand, L. R. 1 Sc. Ap. especially 733. Cross v. Barnes, 36 L. T. N. S. 693. 
 
 (3) N. s. 4 (2), 7; Moore $c. Bg. Co. (o) N. s. 7 (fin). 
 v. Armytage, L. R. 14 C. D. 379; Ma- (p) Begbie v. Fenwick, 20 W. R. 269; 
 
 ther v. Fraier, 2 K. & J. 53S. Longbottom v. Berry, 10 B. & S. 852. 
 
 (i) N. B. 5.
 
 THE BILLS OF SALE ACTS. 517 
 
 such that it would be destroyed by removal to the custody 
 of the disponee (a) ; nor if it be merely Purchase-money to 
 arise from sale of goods &c. (b); nor if a mere right to 
 Damages be conferred by the earlier transaction (c) ; or a 
 mere right to seize (d) (unless exercised before the Bank- 
 ruptcy (e) &c.) ; nor if the earlier dealing was an ante-nup- 
 tial (f) Settlement (g); or was a transfer of goods in the 
 ordinary course of any Trade or calling (h) ; or was made 
 by a document used in the ordinary course of business as 
 proof of the possession or control of goods (g), (for example, 
 a warrant or order for their delivery (g),) or as authorizing 
 the person to whom it may be endorsed or delivered to 
 transfer or receive the goods represented by it (g) ; or was 
 a Bill of Lading (g), an India Dock-Warrant (g) or a 
 Warehouse-keeper's Certificate (g); or was made for the 
 general benefit of the Creditors of the disponor (i) ; nor if a 
 mere right to distrain was conferred by it (j), (unless given 
 since 1878 by way of security (&)); nor (perhaps (/)) if it 
 was in some other respects anomalous; nor if possession 
 (m) was obtained (1) by the disponee («) (even prematurely 
 
 Shares, Government Securities and Choses in Action are also excepted in the 
 act; but of these the two first are but kinds of the third, and none fall within 
 the terms of the rule, because none are corporeal chattels. 
 
 (1) The cases cited in the notes shew when possession of Growing crops i9 
 held to be obtained (o) ; when possession of goods is held to be obtained by 
 
 (a) Brantom v. Griffits, L. R. 2 C. v. London $c. Co., L. R. 5 Ex. D. 51. 
 P. D. 212. (j) Ante, p. 513 (Ji,f) and authori- 
 
 (6) Watson r. Love, L. R. 5 C. D. 44. ties cited p. 513 (g). 
 
 (c) Homan v. Broadbent, L. R. 12 (k) Ante, p. 513 (/). 
 
 Eq. 598; Said, Brantom v. Griffits, L. (/) According to Brown y. Bateman, 
 R. 2 C. P. D. 214, /. 7-9. L. K. 2 C. P. 272. 
 
 (d) Thompson v. Cohen, L. R. 7 Q. (m) See Fletcher r. Henley, L. R. 5 
 B. 533. C. D. 809. 
 
 («) Conceded, T. v. C. (») 0. s. 1 (>fn); N. s. 8 (»; Bar. 
 
 (/) Fowler v. Foster, 5 Jur., N. S. rand v. Cochrane, L. R. 4 C D. 23; 
 
 99; Ashton v. Blackshaw, L. R. 9 Eq. Brignall v. Cohen, 21 W. R. 25; F. r. 
 
 50. H.; Lyons v. Tucker, L. R. 6 Q. B. D. 
 
 (g) 0. s. 7 (I); N. s. 4 (1). 660; Hedfern v. Ball, 19 W. R. 1,058; 
 
 (h) Same, extended by North Wes- Taylor r. Eckersley, L. R. 5 C. D. 740. 
 
 tern Co. r. Slee, L. R. 15 Eq. 69. See (o) Sheridan v. Mc. Cartney, 11 Ir. 
 
 also Reg. r. Thomas, 11 Cox. C. C. 535. C. L. 506, 5 L. T N. S. 27. 
 
 (i) O. s. 7 (1); N. i. 4 (1); Bolder*
 
 518 THE BILLS OF SALE ACTS. 
 
 (a), or, perhaps, wrongfully (b), or under such circum- 
 stances that a disposition then made would have been 
 postponed as a fraudulent preference (c)), unless (before 
 it was obtained) 7 (d) business (e) days, or, the disposition 
 being before 1879 (in Ireland 1st November, 1879), 21 (d) 
 days, since the making of the disposition, had elapsed, and 
 the act of Bankruptcy to which the bankruptcy or liquid- 
 ation relates back had occurred (f), or the seizure under 
 the execution been levied (g), or the trust disposition for 
 creditors been made (h), circumstances equally necessary 
 though the priority be claimed for a subsequent disponee 
 (i), it being insufficient that his disposition was registered 
 before possession &c. had been taken (i) ; nor if (which is 
 deemed a mode of giving possession,) the goods were left 
 on the disponee's land (j), (even to enable him to execute 
 a building contract (j)) (unless as above) ; nor if the goods 
 
 obtaining the key (with control) of the place where they are (k); when by 
 entering into a third person's house where they are (/) ; and when by entering 
 into the house, but not the room, in which they are (m) : what is deemed a 
 taking of possession when the disponee is wife of the disponor (n); what when 
 the goods are in a house deserted by the disponor (o); and what when they are 
 in the disponee's place of business managed by the disponor (p): that an Adver- 
 tising of goods for sale will not be equivalent to taking possession, unless the 
 fact that the sale is to be made under the mortgage (or "bill of sale") appears 
 on the advertisements (q): and that a proviso, in a mortgage (or " bill of sale") 
 of chattels, by which the mortgagor is authorized to continue in possession 
 until default, following a clause by which the mortgagee is authorized to take 
 possession on a specified event, is considered as merely authorizing the mort- 
 gagor to continue in possession until either default be made or the event 
 happen (r). 
 
 (a) Redfern v. Ball, 19 W. R. 1,053. (j) Re IVaugh, L. R. 4 C. D. 524. 
 (6) Suggested, Fletcher r. Henley. (k) Smith v. Wall, 18 L. T. N. S. 
 
 (c) Symotis r. Jordan, L. R. 14 C. D. 182; Gough v. Everard, 2 II. & C. 1. 
 (J93. (') Ancona v. Rogers, L. R. 1 Ex. 
 
 (d) 0. s. 1 (fin-) ; N. s. 8 (fin.) ; Brig- 285. 
 
 nail v. Cohen. (m) Furber v. Finlayson, 24 W. R. 
 
 (e) N. s. 22. 370, denied L. R. 5 C. D. 813. 
 
 (f) 0. s. 1 (fin.) ; N. s. 8 (fin.) ; B. v. C. ; (») A shton r. Blackshaw, L. R. 9 E<i. 
 F. r. //. ; R. v. B. ; T. r. E. As to the 510. 
 
 relation back of the rights of linnk- (o) Robinson v. Briggs, T,. R. 6 Ex I. 
 ruptcy-creditors, and as to Acts of (p) Pickard v. Marriage, L. R. 1 Ex. 
 Bankruptcy, see below, Ch. LXII. D. 364. 
 
 (<;) O. s. 1;N. s. 8 ; Minister r. Price, (q) Lewis r. Henderson, h. R. 6 Ch. 
 1 F. & F. 191. C2G. 
 
 (») National Guardian Co. r. Francis, 
 L. R. 10 C. D. 403. 
 
 (h) O. s. 1 (fin.): N. s. 8 (fin.) 
 (>■') B. r. C, compd. with L. v. T.
 
 THE DILLS OF SALE ACTS. 519 
 
 were sold and the proceeds paid to the disponcc (a), (unless 
 as above (/;)) ; nor if possession was taken by the sheriff, 
 whether at the suit of the creditor who seeks priority (c) or 
 at that of a stranger (d), (unless as above); nor if Regis- 
 tration (c) (and if made since 1879 &c. Attestation (f)) of 
 the document by which the disposition was made or 
 evidenced was effected in the prescribed (g) manner, and 
 every defeasance (h), Condition (A), and Declaration of 
 trust (h) for the disponor (i), and every Schedule and 
 Inventory referred to in or annexed to the disposition (j)> 
 and (since 1879) the Consideration (k) by which it was 
 supported (/), was stated in the disposition (and not (m) 
 merely by endorsement on it), and the disponor had the 
 legal estate (11) (at least if the possession which a former 
 owner hud shared with him continue apparently unchanged 
 (0) (1)), unless either the prescribed time (p) had elapsed, 
 before registration, or the priority is sought for a disposition 
 (not on trust for creditors generally (</)) registered earlier 
 than the postponed disposition (r), or the postponed 
 
 (1) Two points arose in tins case (q). On the first, which is not referred to 
 in the text, one judge held that Registration is only effectual if the disponor 
 had possession of the goods but the only remaining judge dissented. On the 
 other both agreed that it is only effectual if the disponor had the legal estate 
 
 (a) Re Wilson, 29 L. T. N. S. 860. (/) N. s. 8 ; explained Carter v. 
 
 (b) Ante, p. 518 (d-i). Threapleton, L. R. 12 C. D. 908; Chal- 
 
 (c) Banbury v. White, 2 H. & C. linor v. Rogers, L. R. 16 C. D. 260; 
 300; compd. ante, p. 512 (g). Credit Co. v. Pott, L. R. 6 Q. B. D. 
 
 (d) Saffery r. Brenner,!^. R. 16 C. D. 295; and qualified in Re Haynes, L. 
 068; Taylor v. Eckersley, L. R. 5 C. D. R. 15 C. D. 42; Re Parker, L. R. 16 
 740. C. D. 35; Challinor v. Rogers. 
 
 (e) N. s. 8; Karet v. Kosher M. Ass., See also, as casting light on this 
 L. R. 2 Q. B. D. 361. subject, Landowners Ire. Co v. Ashford, 
 
 (f) N. s. 8; Pickardv. Marriage, L. (4th point), L. R. 16 C. D. 411; and 
 R. 1 Ex. D. 364. Hamlyn v. Belteley, L. R. 5 C. P. D. 
 
 (g) N. s. 10. 327. 
 
 (A) O. s. 2; N. s. 10 (3); qualified (m) Re Parker. L. R. 16 C. D. 35. 
 Collins v. Lee, L. R. 10 Ch. 367; Re (») Chapman v. Knight, L. R. 5 C. 
 
 Southam, L. R. 17 Eq. 578; Furber v. P. D. 308, 317. 
 PelUw, L. R. 6 C. D. 187 (fin). (o) As in C. v. K. 
 
 (i) liobinson v. Collingwood, 11 L. T. (p) Ante, p. 515 (j-l). 
 
 N. S. 313. (?) I assume that this is implied in 
 
 0')N. s. 10(2). N. s. 8. 
 
 (*) Defined ante, p. 142 (in.) (r) N. s. 10 (fin).
 
 520 THE BILLS OF SALE ACTS. 
 
 disposition had been made to secure a debt already 
 secured on the same goods by an earlier disposition (a) and 
 for a further purpose than to correct a material error in that 
 disposition (a), or some period of 5 years has since the regis- 
 tration elapsed without re-registration (b); nor if the 
 disponor himself derived under a disposition conformable 
 to the above (c) rules and duly registered (d), unless either 
 
 5 years have since elapsed without registration (e), or the 
 goods have been in his, and not merely in the previous 
 
 Cases lying disponor's, possession &c. (f). And, of course, a disponee 
 outside of the j s no t entitled by this rule to priority over an unregistered 
 disposition which he has authorized; nor, therefore, is a 
 mortgagee of a Stock-in-trade entitled to priority over those 
 who, in the ordinary course of business (g), purchase the 
 articles of which it consists from his mortgagor, because a 
 mortgage of a Stock-in-Trade implies authority to make 
 such sales (h). And priority is not conferred by these Acts 
 on Creditors in a Winding-up (i); nor is the validity of a 
 disposition as between the parties to it (j) affected by them. 
 
 because a trust may be created secretly. But it is difficult to see how a trust 
 accompanied by possession can be secret. In this case, however, the beneficiary 
 was the wife of, and held possession along with, a former owner, whose posses- 
 sion had never been apparently changed, and from whom no registered dispo- 
 sition had proceeded. 
 
 (a) N. s. 9. {h) National Mercantile Bk.v. Hamp- 
 
 (6) N. s. 11; and, (as to dispositions son, L. R. 5 Q. B. D. 177. 
 
 before 1879) 29-30 Vic, c. 96, (E).s. 4. (t) Re Marine Sfc. Co., L. R. 4 Eq. 
 
 (c) Ante, p. 519 (f-m). 601. That this has not been altered 
 
 (d) N. s. 10 (fin.); Home v. Hughes, by the 38-9 Vic, c. 77, s. 10, was 
 L. R. 6 Q. B. D. 676; and see ante, p. admitted in Re Crumlin Sj-c. Co, L. R. 
 519 (<>). 11 CD. 756, and is borne out by the 
 
 (e) Karet v. Kosher fyc. Assn, (a principle of Re Richards, L. R. 11 C. 
 strong case) L. R. 2 Q. B. 361. See D. 676. 
 
 ante, in this page (6). (j) Reg. v. Crease, L. R. 2 C. C. 
 
 (f) Implied, N. s. 11 (4). 105. See, as to a kindred point ante, 
 
 (g) Necessary, Payne v. Fern, L. R. p. 517 (a). 
 
 6 Q. B. D 620.
 
 ( 521 ) 
 
 CHAPTER LIX. 
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 matter 
 
 The remaining enactment of this group is the Order and Rule. 
 disposition clause (a), by which Bankruptcy- (a), and 
 perhaps (i) Liquidation- (b) creditors become entitled to 
 such chattels (c) (n) and interests (d) in chattels, as are in 
 the possession order or (m) disposition (a) of the bankrupt 
 (iv); and this, though the chattel claimed be a share in a Applicability 
 
 of the liule. 
 
 (i) As to England, such property of the debtor as would (if he were bank- „," ,^,~ 
 rupt) vest (a) in the bankruptcy-trustee is (when he is liquidating) to vest (b) 
 in the liquidation trustee; but there is no express enactment (e) that property 
 of another person which would (if he were bankrupt) vest (under the order and 
 disposition clause) in the bankruptcy-trustee shall (when he is liquidating) vest 
 (under that clause) in the liquidation-trustee. However the courts have some- 
 times (/) assumed that it would. 
 
 As to Ireland, the order and disposition clause does not seem (g) to apply to 
 cases of Arrangement. 
 
 (n) Not (A) including chattel interests (,i) in Tenements (/'). 
 
 (m) Under the statutes (fc) in force before 1st September, 1825, Possession 
 and Order and disposition were both necessary, and a decision (/) has been 
 founded on this distinction. Consequently such of the statements in this chapter 
 (respecting the circumstances necessary to constitute or evidence possession 
 order or disposition) as depend on the interpretation of those statutes must be 
 understood as only correct so far as they did not depend, (as indeed they do not 
 seem to have depended) on this distinction. But, even under the later enact- 
 ments, a taking away of the possession from the bankrupt constitutes a taking 
 out of his order and disposition also, if the possession never appeared to be in 
 him (m). 
 
 (iv) The words "Bankrupt" aud "Bankruptcy" throughout this chapter 
 include "Liquidating debtor" and "Liquidation" if the clause be applicable to 
 liquidations. 
 
 (a) 32-3 Vic, c 71 (E)., s. 15; 20- (k) Roev. Galliers, 2 T. R. 133; and 
 
 1 Vic, o. 60 (I), s. 313. see 1 Vez. 352, 13 Vez. 122, 1 Mont. 
 
 (6) See 32-3 Vic, c 71 (E)., s. 125 240. 
 
 (5). (i) Defined ante, p. 4, 10. 
 
 (c) Defined ante, p. 2. (j) Defined ante, p. 1. 
 
 (d) Cases cited below, p. 522 {d,r). (fc) 21 Ja. I, c 19, s. II, since 
 
 (e) See Yate Lee on Bankruptcy (1st superseded by 6 Geo. IV, c. 16, s. 72, 
 Ed.) 463-4. which was followed by the acts of 
 
 (J) Lovering r. Jones, L. R. 9 Ch. 1849 & 1869. 
 
 621; Edey r. Cuthbertscn, L R. 19 Eq. (/) Greening v. Clarke, 4 B.&C.318. 
 
 264; Harding r. Fairbroiher, L. R. 15 (»•) Watkins v. lieinagle, 1 Dea. 296; 
 
 Eq. 223; Meggy v. Imperial <yc. Co., Edmonds v. Best, 7 L. T. N. S. 279: 
 
 L. R. 3 Q. B. D. 711. and see (as to the 21 Ja. I), Manton 
 
 (g) See 20-1 Vic, c 60, s. 343-56. v. Moore, 7 T. R. 67. 
 
 66
 
 522 
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 Interest. 
 
 Time of 
 enjoyment. 
 
 Canal Company (a) (if declared by statute to be personal 
 property (b)) ; or be money raisable from land (c) (though 
 no trust for sale (c)) ; and though the Interest claimed be 
 but beneficial (d) ; and though it be but that of the Creditors 
 of a Bankrupt owner (e); or that of the distributees of an 
 Intestate (f) owner who has no administrator (f), (even 
 when the bankrupt's possession commenced after the death 
 (f), at least if he whose interest is claimed could have taken 
 out administration (g)); and though it be not susceptible 
 of immediate possession (h), (as, if it be Reversionary (i), or 
 be a right under a Policy (j) t or expected Contract (£)); and 
 though it be Contingent (/); and though it be but a Mort- 
 gage (m) (whether carrying the legal estate («) or not (o), 
 and though by deposit (p), or subject to a previous mort- 
 gage (q)) ; and though it be but a lien (r) ; and though (when 
 it was derived under the bankrupt) his possession be under 
 a right which he reserved (i), whether as mortgagor until 
 (i) In this respect this enactment differs (s) from that (/) hy which Creditors 
 
 (a) Re Lancaster Canal Co., 1 D. & 
 Ch. 411. 
 
 (6) As in L. C. C. 
 
 (c) Hughes's trusts, 2 H. & M. 89 ; 
 Consolidated I. Co. v. Redly, 1 Giff. 
 376 /. 3, modified (as to partnership 
 assets) e. Taylor, Mont. 240. 
 
 (rf) Cases cited helow in notes (f, i, 
 
 J, °, »■)• 
 
 (e) Butler v. Hobson, 4 Bing. N. C. 
 290, which compare with ante, p. 499 
 (e, m,n) (ii). 
 
 (/) Foxy. Fisher, 3 B & A. 135; 
 Re Thomas, 1 Ph. 159; (but White v. 
 Muller, 6 Ex. 713, did not depend on 
 Order and disposition at all). 
 
 (g) Suggested as necessary in F. v. 
 F., but scarcely consistently with r. 
 T. 
 
 (h) Bartlett v. Bartlett, 1 D. G. J. 
 127; Ex. Castle, 3 M. D. & D. 117; 
 Freshney v. Carrick, I H. & N. 653; 
 Galew. Lewis, 9 Q. B.730; Harding 
 r. Fairbrother, L. R. 15 Eq. 223; 
 Hornsby v. Miller, 1 E. & E. 192; 
 Iiyall v.Rowles, 1 Vez. 348; Shuttle- 
 viorth v. Hernaman, 1 D. G. J. 322; 
 Spademan v. Miller, 12 C. B. N. S. 659 ; 
 Ro Trethowan, L. R. 5 C. D. 566 J. 
 
 59; Union Bk. r. Jackson, L. R. 12 Eq. 
 354, and cases there cited; said as to 
 liens Watson v. Love, L R. 5 C. D. 
 44 /. 17-28. 
 
 (/) B.v.B.; e. C. 
 
 (j) G. v. L. 
 
 (*) R. v. R., (as to the mortgage of 
 future debts to Reynels) ; and see as to 
 future freight, Douglas v. Russell, 4 
 Sim. 524. 
 
 (/) B.v.B.; e.C- G. v. L. 
 
 (m) B. v. B.; F. v. C; G. v. L.; 
 H. v. F.; H. v. M.; S. v. M.; R. v. 
 R.; T; U.B. r.J. 
 
 (n) F. v. C; H. v. F.; H. v. M.; 
 S. v. M.; R. v. R. 
 
 (o) B. v. B. ;G.v.L.,R.v.R.;T.; 
 u. n. r. /. 
 
 (p) T.; U.B. r.J. 
 
 (q) R. v. R. (as to the mortgage to 
 Reynels). 
 
 (r) S. v. H. ; Said W. v. L ■ contra 
 Hawthorne v. Newcastle R. Co., (6th 
 point) 3 Q. B. 734. 
 
 (s) Authorities in 2 Dav. Con. (3rd 
 Ed.) 698 n.; and below Ch. LXI. 
 Compe. ante, 514 (g). 
 
 (t) 13 El. c. 5, discussed below, 
 Ch. LXI.
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 523 
 
 default (a), as owner subject to a lien (b) or execution (c), 
 as Life-tenant (d), or otherwise; and though the Custody Custody, 
 of the goods is in someone else on behalf of the bankrupt 
 (e), as, in a Servant (f), Manager (g), Warehouse-keeper 
 (h), Hirer (/), or wrong-doer (such as a Sheriff authorized 
 only to seize the bankrupt's own goods (j)) t — in which case 
 however a manager acting in his own name (k), and a 
 warehouse-keeper though holding the goods in the bank- 
 rupt's name (/), but not a manager acting in the bankrupt's 
 name (g), nor a hirer (i), continues entitled to any lien he 
 may have on the property; and though the bankrupt has 
 the goods on Sale or Return only (m) ; and though (when Various other 
 the benefit of a contract made with the bankrupt and Circumstances, 
 disposed of by him is the subject in question) the disponee 
 was the person who performed the bankrupt's part (n) ; and 
 though the Documents of Title were in the possession of 
 him whose interest is claimed (o) ; and though the persons 
 residing at the place and concerned in the trade in the 
 which the goods were left in the bankrupt's possession 
 knew by rumour of the rights of him whose interest is 
 claimed ( p) ; and though (when the goods were trade-debts 
 
 are entitled to priority over dispositions as tending to defeat or delay them. 
 
 (a) F. v. C; H. v. F.; H. v. Af. 
 
 (p. 169 fin); S. v. Af. ; and (substan- 
 tially) R. v. R. ; and U. B. r. /. 
 
 H. v. F., overrules the dicta in Ashion 
 v. Blackshaw, L. R. 9 Eq. 510, and in 
 Homan v. Broadbenl, L. R. 12 Eq. 598. 
 
 (b)S. v. «.; said W. v. L. 
 
 (r) Jackson v. Irvin, 2 Camp. 48. 
 
 ((f) Ex. C. 
 
 (e) Ex. Arbouin, (2d & 3d points.) 
 D. G. 359 ; Barrow v. Bell, 5 E. & §. 
 540; Edey r. CuthberUon, L. R. 19 Eq. 
 264; Hoggard v. Mackenzie, 25 Bea. 
 493; Hornsby v. Miller, 1 E. & E. 192; 
 Jackson v. Irvin, 2 Camp. 48 ; Roy v. 
 Sillence, L. R. 7 C. D. 70. 
 
 (f) J. v. /. 
 
 (jr) Hoggard v. A/. 
 
 (fc) A. (2nd & 3rd points). 
 
 («) R. v. S. ; Hornsby v. M. 
 
 (j) B. v. B.; E. r. C, and see J. 
 v.I. 
 
 (k) Hidden r. Hooper, 3 L. T. N. S. 
 386. 
 
 (/) yl.(3rd point). 
 
 (m) Shepherd v. Clapham, 4 L. T. N. 
 S. 808 ; Livesay v. Hood, 2 Camp. 83. 
 
 (n) Cooke v. Hemming, L. R. 3 C. 
 P. 334. 
 
 (o) Caldwell v. Currie, L. R. 13 Eq. 
 188; Green v. Ingham, L. R. 2 C. P. 
 525; Price r. Gibbs, 3 M. D. & D. 
 586, not contradicted by Ex. Newton, 
 4 D. & C. 138, if understood as ex- 
 plained in 1 D.G. J. 143. 
 
 (p) Knowles v. Horsfall, 5 B. & A. 
 134.
 
 524 
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 Conditions of 
 the rule. 
 Trading. 
 
 Reputed 
 
 Ownership, 
 
 &c. 
 
 Consent of 
 true owner. 
 
 purchased from partners to whom the bankrupt is successor) 
 the change in the firm has been advertised in the gazette, 
 and the partners have directed their debtors to pay to one 
 of themselves (being the same person who is successor (a)), 
 (for notice of the change to, or knowledge of it by the 
 debtor is essential (b)) ; and though the order and dispo- 
 sition ceases before the adjudication (c). 
 
 But the enactment applies, (i) only if, at the time (d) to 
 which the bankruptcy relates back, the bankrupt was (on 
 an English (e) (n) bankruptcy) a Trader (f) ; and only if, 
 at that time, the possession order or disposition had begun 
 (g) (in), and the bankrupt was Reputed owner (A) (iv); and 
 only if Consent to (*'), or negligent acquiescence in (j), the 
 bankrupt's possession &c. had been given by him whose 
 interest is claimed (k), or by his trustee, (whether he him- 
 
 (i) There are cases (I) to the effect that the rule does not apply when the 
 bankrupt is himself the owner of the goods, subject to a partial interest claimed 
 under the clause, but almost all these cases are explicable on the several grounds 
 to which they are referred in this chapter, and the rest seem to be overruled. 
 
 (n) In Ireland this does not seem to be so (m). 
 
 (m) But a reversionary interest may pass under this clause (»). 
 
 (iv) The statute adds another alternative, that he should have taken upon 
 himself the sale or disposition as owner, but it has been decided (o) that he will 
 not be deemed to have done this unless he is also reputed owner. 
 
 (a) Ex. Sprague, 4 D. G. M. G. 
 866; Cooper v. Johnson, 1 M. D. D. 
 358. 
 
 (6) See below, especially Ex. Arbouin, 
 1 D. G. 359. 
 
 (c) Jay r. Blenkhorn, L. R. 9 Ch. 697; 
 Lees v. Whiteley, L. R. 2 Eq. 143. 
 
 (d) Defined below Ch. LXII. And 
 see ante, p. 70 (i), 71 (»), as altered 
 by the Addenda. 
 
 (e) 32-3 Vic, c.71, s. 15 (5). And 
 see 49 L. T. 0. S. 455, and as to the 
 old law Gordon v. E. /. Co., 7 T. R. 
 228. 
 
 (f) Defined 32-3 Vic, c 71, s. 4, 
 and 1st schedule. 
 
 (g) Lyon v. Weldon, 2 Bing. 334. 
 (h) 32-3 Vic c, 71 (E). s. 15 (5); 
 
 20-1 Vic. c 60, (I), s. 313; and see 
 near the end of this chapter. 
 
 (*) Explained Ford v. Caughey, L R. 
 
 1 C. D. 528, I. 35-6; Rawbone's Trusts, 
 3 K. & J. 481 (med.) 486, (in which 
 the cases are examined). Compare 
 514 (j). 
 
 (j) Said in effect; R's trusts, p. 
 483, 485. 
 
 (*) 32-3 Vic. c, 71 (E.), s. 15 (5); 
 20-1 Vic c 60 (I), s. 313; Ford r. 
 Caughey, L. R. 1 CD. 521. 
 
 (/) Hawthorne v. Newcastle R. Co., 
 (6th pt.) 3 Q. B. 734. In Newitt v. 
 Garrud, L. R. 16 CD. 534 I. 11-13, 
 the same doctrine was laid down as to 
 goods in which he whose interest was 
 claimed has not acquired any specific 
 interest. 
 
 (m) 35-6 Vic, c 58, s. 17. 
 
 (n) Ante, p. 522 (i). 
 
 (o) Wtngfield r. Florence, L. R. 10 
 C D. 591.
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 525 
 
 self be owner (a), bankruptcy-creditor (b) or administration- 
 creditor (c)); and therefore only if he was aware of the 
 circumstances constituting order and disposition (d), and 
 was able to take possession of the goods or to notify the 
 custodian of them (e), and was entitled to do so (f) (which 
 one entitled as Partner (g) (i), or perhaps other co-owner 
 (n), of the bankrupt, is not), and knew himself to be so (h), 
 and was free from disability (i) (in) (without which his 
 trustee's consent also seems unavailing (i)). But his accept- 
 ance of the property on the terms that the bankrupt may 
 retain possession for a time is (j) considered a sufficient 
 consent, though not a revokable one; while his consent to 
 the possession of one who afterwards consents to the bank- 
 rupt's possession is not sufficient (k). 
 
 And the clause does not apply in favour of Winding-up- Exceptions, 
 creditors (/) (iv); nor against one Distraining as landlord, Distresf" UP 
 mortgagee with attornment (m), or otherwise; nor does it Subject-matter 
 
 Fixtures. 
 
 (i) But of course goods may he in the order and disposition of a partnership 
 
 (n) This was expressed as the ground of decision in one case (o), but even 
 there the co-owners were partners. However, the same seems to be at least 
 the case when the co-ownership exists between husband and wife (p). 
 
 (m) The Disability in these cases was Infancy, and it is not clear whether 
 the infants had attained the age of consent. 
 
 (iv) In Ireland some Companies can still become bankrupt (q), and the clause 
 ia applicable in their bankruptcies (r). 
 
 (a) Freshney v. Car rick, 1 H. & N. 
 653; Ex. Dale, Buck 365. 
 
 (6) Butler v. Hobson, 4 Bing. N. C. 
 298-9. 
 
 (c) Fox v. Fisher, 3 B. & A. 135. 
 
 (d) Rawbone's Trusts, 3 K. & J. 476. 
 
 (e) Burn v. Carvalho, 4 M. & Cr. 
 704. 
 
 (f) See especially Reynolds v. Bow- 
 ley, L. R. 2 Q. B. 474. 
 
 (g) Reynolds v. Bowley, re Bainbridge, 
 L. R. 8 C. D. 218: Dorman r. Lake, id. 
 51. 
 
 (A) Load v. Green, 15 M. & W. 216; 
 approved Smith v. Hudson, 6 B, & S. 
 431. 
 
 (i) Viner v. Cadell, (Eldon), 3 Esp. 
 474; contra e. Dale, Buck 365. 
 
 (j) Ante, p. 523 (a-d). 
 
 (k) Fraxer v. Swansea Co , 1 A. & E. 
 354 ; Ex. Massey, 4 D. & C. 405. 
 
 (/) Re Crumlin <$• Co, L. R. 1 1 C. D. 
 755, overruling re Stockton $c. Co., L 
 R. IOC. D. 335. 
 
 (m) Punnett r. Kitchin, L. R. 16 C. 
 D. 226; e. Threlfall, L. R. 16 C. D. 274; 
 Jolly v. Arbuthnot, 4 D. G. J. 224, mod- 
 ified in Jacksonr. Bowes, L. R. 14 C. D. 
 725, and in Williams r.Thompson, L R 
 7 C. D. 138. 
 
 (n) Hayman r. Pulsford, L. R 8 C. 
 D. 23. 
 
 (o) Dorman r. Lake. 
 
 (p) See 1 Pr. Sh. Touchstone 131; 
 Watk. Con. 3 Ed. 249. 
 
 (q) 20-1 Vic,c. 60, s. 51 sqq. 
 
 (r) s. 313.
 
 526 
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 Ship. 
 
 Chose in 
 action. 
 
 Goods on 
 Shipboard. 
 
 Notoriety. 
 
 apply to Fixtures (a), though removable by the tenant (b), 
 and though derived under the bankrupt (a) who had him- 
 self affixed them (c) or had acquired them by a different 
 title (d) and for a longer period (d) than the tenement, and 
 though he whose interest is claimed had not acquired any 
 interest in the tenement (e); nor to the mortgagee's interest 
 in a Ship the mortgage of which was registered before the 
 act of bankruptcy (f) ; nor to money secured on a tenement 
 by mortgage (g); nor (as regards English bankruptcies (h)) 
 to Choses in action (»') (i) (whether Policies (j), Debentures 
 (k), or otherwise), unless they be standing on a register 
 {I) in the bankrupt's name (m), or be business-debts (n). Nor 
 does the clause apply if the goods were abroad on board a 
 ship which belongs to another than the bankrupt (o), (at 
 least if he whose interest is claimed had posted to the ship- 
 master a notification of that interest (/>), though it had 
 never reached him (q) as it might have done if posted 
 sooner (q)); nor if the rights of him whose interest is 
 claimed were known (r) to the public (5), (of which, however, 
 
 (1) Practically, Bills of Exchange do 
 plained further on in this Chapter. 
 
 («) Re Gawan (leading case), 5 D. G. 
 M. G. 403; Boydell v. Mc. Michael, 3 
 Tyr. 974; Horn v. Baker, 9 Ea. 215, 
 followed 3 B. & Ad. 804 ; Hubbard v. 
 Bagshaw, 4 Sim. 336; Tebb v. Hodge, 
 29 L. J. C. P. 56; Brown r. Reed, L. R. 
 9 Ch. especially 395 /. 27-9. 
 
 (b) Re Gawan, p. 410; B. v. M.; B. 
 v. R. ; Horn v.B.; T.v.H.; overruling 
 opinion expressed in e. Belcher, 4 D. & 
 Ch. 716. 
 
 (c) T. v. H. 
 
 (d) B. v. Mc M. ; contra, said re Tre- 
 thowan, L. R. 5 C. D.566 /. 4-10. 
 
 (e) Whitmore v. Empson, 23 Dea. 313; 
 Spicer r. Allnutt, 2 Bea. 335; doubted 
 Ex. Sykes, L. J. 18 Ba. 16. 
 
 (f) 17-18 Vie, c. 104(E.).s. 72; 20- 
 1 Vic, c. 60 (I), s. 313, which, though 
 worded differently, seems to mean the 
 same. 
 
 (g) Jones v. Gibbons, 9 Vez. 407; 
 Mackay r. Wright, 1 M. D. & D. 550 ; 
 extended, Barnett r. Reay, (4th pt ), 
 D. G. 203, but restricted by the dis- 
 tinction stated ante, p. 522 (c), which 
 
 not fall under this clause. This is ex- 
 
 corresponds to that stated ante, p. 393 
 (d) & (i). 
 
 (A) Otherwise as to Ireland, compare 
 20-1 Vic, c 60, s. 313, with Ryall y. 
 Rowles, 2 W. T. L. C. (4th Ed.), 734. 
 
 (i) 32-3 Vic, c. 71, s. 15 (5). For 
 definition see ante, p. 3. 
 
 (j) Ibbetson r. Moore, L. R. 8 C. D. 
 519. See ante, p. 522 (jj. 
 
 (k) Re Pryce, L. R 4 C. D. 685. 
 
 (/) Union Bk r. Jackson. L. R. 12 
 Eq. 354; modified in Pryce, L. R. 4 C. 
 D. 685. 
 
 (m) Necessary, Barry r. Fox, L. R. 
 17 Eq. 113. 
 
 (n) 32-3 Vic, c 71, s. 15 (5); Kemp 
 r. Fastnedge, L. R. 9 Ch. 383; re Pryce, 
 L. R. 4 C. D. 685. 
 
 (o) Acraman v. Bates, 2 E. & E. 456. 
 
 (p) As in A. v. B. 
 
 (q) Acraman v. Bates, 2 E. & E.456. 
 
 (r) Sd. e. Castle, 3 M. D. D. 123-4; 
 sd. Lingard v. Messiter, 1 B. & C. 313, 
 compare Reynolds v. Hall, 4 H. & N. 
 516 with ante, p. 518 (q). 
 
 (*) Necessary, ante, p. 523 (p).
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 527 
 
 information to one execution-creditor is presumptive evi- 
 dence (a) (i)); nor if the goods are the Stock-in-trade of a 
 business carried on through and in the name of him whose 
 interest is claimed (b); nor if the bankrupt merely occupies Usage 
 the goods under a Trade-usage (c) well known (d) to those 
 concerned in that trade (e), (though he was owner, and only 
 ceased to be so by sale to him whose interest is claimed 
 (f))\ nor if he merely occupies them along with a tene- 
 ment with which such goods are ordinarily let and used 
 (as Furniture with a house (g), or implements with a 
 Colliery (h)); nor if the owner (being his wife") and he 
 occupy them (being furniture) together (*); nor if he is 
 manufacturing (j) or has manufactured (k) them, even 
 from his own materials (/), his business being to manu- 
 
 Wife's furni- 
 ture. 
 Manufacture. 
 
 (i) It has been said (in) that a public sale has been held to create sufficient 
 notoriety, but the case (») which seems to have been alluded to depended not 
 on the order and disposition clause but on the statute (o) discussed in a subse- 
 quent chapter (p). 
 
 (a) Hall v. Day, 2 F. & F. 568. 
 
 (6) Hidden r. Hooper, 3 L. T. N. S. 
 386. See ante, p. 523 (g). 
 
 (e) Ex. Birt (Tea.) (Dock-warrants) 
 15 L T. N. S. 368; re Blaushard, (hire 
 system) L. R. 8 C. D. 601 ; Elmer r. 
 Colso/t, 13 W. R. 476; Emerson r. Haw- 
 kins, (hire-system, judicial notice),' 41 
 L. J. Ba. 20; Hamilton v. Bell, (repair- 
 ing clocks, strong case), 10 Ex. 545; 
 Poire// v. Matthews, (Hire for hotels, 
 Judicial Notice), L. R. 1 C. D. 501; 
 Priestley v. Pratt, (leaving goods with 
 seller), L. R. 2 Ex 101; re Terry, 
 (same, Farm Produce), 7 L. T. N. S. 
 370 ; Vaux r. Couston, (same, Goods in 
 Warehouse), L. R.9 Ch. 602, extending 
 Watkins r. Couston, 4 L. R. 8 Ch. 520. 
 Probably e. Flyn, 1 Atk. 185, Do- 
 ver r. Popple, 2 M. D. & D. 259, and 
 Marrable r. Brown, 1 Gl. & J. 402, also 
 depend on this principle, for otherwise 
 they seem contrary to Knowles v. Hors- 
 fall, 5 B. & A. 134, and to Lingard v. 
 Messiter, 1 B. 6i C. 313. 
 
 (rf) Necessary, Powell v. Matthews, L. 
 R. 1 C. D. 508; Thacklhwaite v. Cock, 3 
 
 Tau. 487 ; Mullet v. Green, 8 C. & P. 
 382 ; and see Priestley v. P. 
 
 (e) Sufficient, Watson v. Peach, I 
 Bing. N. C. 327. 
 
 (/) As in r. Birt; Hamilton v. B.; 
 P. v. P.; re T. 
 
 (g) Sd. Stortr v. Hunter, 3 B. & C. 
 378. 
 
 (/»") Storer v. Hunter, 3 B. & C. 368 ; 
 Rufford v. Bishop, 5 Russ. 346; Hub- 
 bard v. Bagshaw, 4 Sim. 326. 
 
 (») Cox r. Bted, L. R I C. D. 302; 
 Jannan v. Wooloton, (last point), 3 T. 
 R. 618; Simmons v. Edwards, 16 M. & 
 W. 838. 
 
 (j) Clarke v. Spence, (Ship), 4 A. & 
 E. 448; Holderness v. Rankin, (Ship), 2 
 D. G. F. J. 258; Stcanslon v. Clay, 
 (Ship), 32 L. J. Ch. 503. 
 
 (it) Carruthers v. Payne, (Carriage), 
 5 Bing. 270. 
 
 (/) As in C. t. .9. ; H. v. H. ; S. v. 
 C. ; and C. v. P. 
 
 (m) Lingard \. Messiter , 1 B. & C. 313 
 
 (h) Watkins v. Birch, 4 Tau. 823. 
 
 (o) 13 El. c. 5. 
 
 (p) Below, Ch. LXI.
 
 528 
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 Hire or Loan. 
 
 Right to 
 restitution. 
 
 Fiduciary 
 possession. 
 
 facfture such (a) ; nor if he merely has them on hire (b) or 
 loan (c), unless he either was owner until he whose interest 
 is claimed became so (d), or was using them in the exercise 
 of his calling (e) (the loan not being confined to the time 
 occupied in repairing similar goods of his own (f)); nor 
 if he has them only on approval (g); or under a dispo- 
 sition void (as, for informality (A)), or voidable (as for 
 fraud (i), or for insolvency by stoppage in Transitu (j)), 
 or displaceable (as, for contravening the bankruptcy law 
 (k)), — the interest claimed being, in each case, the 
 disponor's right of resumption (/). 
 
 Nor does the clause apply if the bankrupt's possession 
 be fiduciary (m). And this exception holds whether he be 
 Trustee (n), Promissor (o) (unless the chattel be incorporeal 
 and the contract not communicated to the holder (p)), 
 
 (a) As in some cases, H. v. R. being 
 the strongest. 
 
 (bj Ex. Wiggins, 2 D. & Ch. 269. 
 
 (c) Elmer r. Colson, 13 W. R. 476; 
 Newport v. Hollins, 3 C. & P. 223. 
 
 (d) Lingham v. Biggs, 1 B. & P. 82 ; 
 hovering r. Jones, No. 2, L. R. 9 Ch. 
 621. 
 
 (e) Brysen v. Wylie, 1 B. & P. 83n. 
 (/) As it was in N. v. H. 
 
 (g) Prismall v. Lovegrove, 6 L. T. N. 
 S. 329, modified ante, 523 (m). 
 
 (h) Smith v. Hudson. 6 B. & S. 431. 
 
 (i) Load v. Green, 15 M. & W. 21 6; 
 Gladstone v. Hadwen, 1 M. & S. 513; 
 modified, Sinclair v. Stevenson, 2 Bing. 
 517. 
 
 (j) Bolton v.Lancashire Sfc. Co., L. 
 R. 1 C. P. 439. 
 
 (Jfe) Re Marshall, D. G. 291. 
 
 (/) As in the cases cited. 
 
 (m) Bankhead's Trusts, (Policy), 2 K. 
 & J. 560; Belcher v Campbell, (Bill of 
 Exchange), 8 Q. B. 1 ; Bjorneborg r. 
 Kullberg, (Goods), 9 L. T. N. S. 460; 
 Bolland r. Porter, (Licences, Goodwill, 
 Stock in Trade, Furniture, &c ,) 24 L. 
 T. N. S.3S5; Brett v. Beck with, (Debts), 
 26 L. J. Ch. 130; Bright r. Smith, 
 (Goods), L. R. 10 C. D. 566; Butcher 
 r. Mellor, (Machinery), L. R. 13 C. D. 
 
 465; Dearr. White, (Assets in general), 
 L. R. 1 C. D. 514; Geaves r. Strahan, 
 (4th & 5th pts), (bond debts), 8 D. 
 G. M. G. 291; Gt. Eastern Co. v. Tur- 
 ner, (Jt. Stock Shares), L. R. 8 Ch. 
 149, r. Horwood (Furniture), M. & 
 M. 169; confirmed Mont. 24; Jackson 
 v. Irvin, (which was expressed as 
 depending, and is shown by Fletcher 
 v. Manning, and other cases cited below 
 to depend, on this principle) 2 Camp. 
 48; JOY v. CAMPBELL, (1st pt), 
 (Jt-Stk. Shares), 1 S. & L. 328; e. 
 Kensington (Consols), 2 V. & B. 84-5; 
 Liverpool Bk. v. Turner, (Ship), 1 J. & 
 H. 179; Moldaut r. Hunter, (Wines), 3 
 D. & Ch. 351; Paull r. Trye, (Bills of 
 Exchange), 3 Dea. 169; Reynolds v. 
 Bowky; (Stock in Trade), L. R. 2 Q. B. 
 474; Scott v.Surnam, (3dpt.), (Goods), 
 Willes400; Shrubsole v. Sussams, 16 C. 
 B. N. S. 452; Stafford v. Clark, (Stock 
 in Trade, Furniture, Bills), 1 C. & P. 
 24; Taylor v. Skinner, (Foreign Stock 
 and Bullion), 3 M. & S. 562 ; Whitfield 
 v. Brand, (Books), 16 M. & W. 286; e. 
 Williams, (Debts), 11 Vez. 6. 
 
 («) Fs. Tr. ; Ji. r. M. ; G. v. S,. (4th 
 and 5th pts.); G. E. C. v. T.- J. v. C. 
 
 (o) K. : L. B. v. T. 
 
 (.p) Ante, p. 522 (A).
 
 THE ORDER AND DISPOSITION CLAUSE. 529 
 
 Partner (winding up {a) the business or continuing it as 
 Executor (b) or otherwise (c)), Factor (d), Broker (e), 
 Bailiff (/) or Agent (/) for a specific purpose (/) (as for sale 
 (g)), hotel- (h) or business- (i) Manager, or Shopman (_/'); 
 and though he be also interested beneficially (k); and 
 though the interest claimed was derived through him (he 
 having been owner until he became trustee (/)); and though 
 (the subject-matter being a chose in action, the legal estate 
 in which was in him alone) the trust was reposed jointly in 
 him and others to whom an assignment had been made 
 which had been indirectly brought to the knowledge of the 
 holders (■;»); and though the trust merely arose from his own 
 declaration (») never communicated to the beneficiary (0), 
 or from a secret partnership (p), or constructively (q) (as 
 from his having acquired the chattel in exchange for trust 
 property (y)); and though the trust was created to enable 
 him to sell (5) (a point on which this enactment differs from 
 the corresponding judiciary rule (t)) ; and though the legal 
 ■estate has been transferred to him that he may sell in his 
 own name (u) ; and though he does sell (v) in his own name 
 (u) (unless the purchase-money was paid before the time to 
 which the bankruptcy relates back (w)). But, notwith- 
 standing the fiduciary relation, the enactment applies if 
 
 the trust was created for the puypose of concealing the true 
 
 w 
 
 (a) Ex. W. 532 (/)-534 («). 
 
 (6) B. v. M. (») lis. Tr.; G. E. C. v. T.- G. v. S. 
 
 (c) B. v. B. ; B. v. M-; D.v. W.\ R. (5th pt.), (so far as appears from p. 
 v. B.; and see ante, p. 525 (g). 297-8, 310of the report) ;X.;Z,..B. v. T. 
 
 (d) B. r. K., G. E. C. v. T.- M. r. (•) B's. Tr., G. v. S. (5th pt), so 
 H. ; P. r. T. ; S. v. S. far as appears. 
 
 (e) T. v. P. (p) B. v. B.; R. v. B.; see also ante, 
 
 (f) B. v. C; W. v. B. Ante, p. 527 p. 525 (g). 
 
 (J-/), 528 (a-f), 523 (c-j) ; 514 (/). (?) B. v. C. ; G. E. C. v. T. ; G. v. 
 
 (g) B. r. S. S. (4th pt.) ;H.;P. r. T.- T. v. P. 
 
 (A) B. x. P. ; S. v. S. (r) B. v. C. ; G. v. S. (4th pt.) ; H. ; 
 
 (i) S. v. C. P. v. T.; T. v. P. [v. P. 
 
 (j) /. v. /. (») B. r. K., P. r. T.; S. v. S. ; T. 
 
 (*)/. v. C. (0 Ante, p. 508 (g). 
 
 (/) B's. Tr. ; G. v. S. (4th & 5th pts.) ; (u) M. r. H. 
 
 seemingly K. (see p. 80-1); L. B. v. r.; (v) M. r. «. ; P. r. T. ; 5. v. S. (4th 
 
 £?. v. 5. pt.) ; T. v. P. 
 
 (m) G. v. .5. (4th pt). As to com- (u>) S. v. .9. (1st. pt.) ; doubted in T 
 
 munication with the holder, sec below, v. P.; and see M. v. U. 67
 
 530 
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 Possession 
 conformable to 
 title. 
 
 Registration 
 under Bills of 
 Sale Act. 
 
 Withdrawal of 
 possession or of 
 consent. 
 
 ownership (a), or if the bankrupt was using the property as 
 his own (b). 
 
 Nor does the clause apply if the possession &c. be held 
 by virtue of a terminable interest conformable to the title 
 of him whose interest is claimed (c), unless that title was 
 derived through the bankrupt (d) ; nor if the bankrupts be 
 partners who have recently sold the goods to a successor, 
 and the goods continue on the premises in his hands (e), 
 (though the partnership name be unchanged, and the goods 
 be part of its stock (e), at least if the change in the firm 
 has been notified in the gazette (j)). Nor does it apply if 
 the interest claimed was derived under the bankrupt by a 
 disposition made since 1879 (g) (in Ireland 1st November 
 1879 (g)) and registered (h) (and if necessary re-registered 
 (*')) under the Bills of Sale Act. Nor does the clause apply 
 if the possession (1) Order and (j) disposition of the goods (k), 
 or of something without which they cannot be dealt with 
 (I), (for example, a document by endorsement of which 
 alone they can be dealt with (/) (11), as, a Bill of Exchange 
 
 (I) Probably the conduct by which possession is changed under this enact- 
 ment is the same as that (m) by which it is changed under the Bills of Sale 
 Act, although the withdrawal of consent has an operation under this enactment 
 which it has not under that («). 
 
 (II) The case in the note (o) seems to have been decided on the ground (cor- 
 
 (a) Said L. R. 8 Ch. 154. 571 ; Foss r. Baldwin, 2 D. G. J. 176; 
 
 (b) Kitchen v. Ibbetson, L. R. 17 Eq. re Grant, 7 L. T. N. S. 536; National 
 46; Fox v. Fisher, 3 B. & A. 135, Ray Ass. Co. r. Francis, L. R. 10 C. D. 413; 
 
 v. Ray. G. Coop. 264. 
 
 (c) Ex. Martin, 19 Vez. 490; and see 
 e. Horwood, M. & M. 169, affirmed 
 Mont. 24. 
 
 (d) Ex. Castle, 3 M. D. & D. 120. 
 Ante, p. 522 (l), 523 (u-d). 
 
 (e) Ex. Gurney, 13 L. J. Ba 17. 
 
 (f) As in Ex. Gumey. 
 
 (g) 41-2 Vic , c. 31 (E.), s. 20, com- 
 pared with s. 2, 3; 42-3 Vic, C. 50 (I), 
 s. 20, compared with s. 2, 3. See as 
 to the former law Harding v. Fairbro- 
 ther, L. R. 15 Eq. 223; and Slandfeld 
 v. Cubbitt, 2 D. G J. 222; Badger v. 
 Jeffries, 29 L. J. Q B. 73. 
 
 (A) See Ante, p. 519 (e,g), 520 (d). 
 
 («) See Ante, p. 520 (b,e). 
 
 (j) See Ante, p. 521 n. (ill). 
 
 (fc) Fletcher v. Maiming, 12 M. & W. 
 
 Taylor r. Eckersley, L. R. 5 C. D. 740; 
 Webb v. Whinney, 18 L. T. N. S. 523. 
 
 (/) Davenport r. Leech, (Dock War- 
 rants), M. & Bl. 165; Greening v. 
 Clark, (same), 4 B. & C. 316; Lucas v. 
 Dorrien. 7 Tan. 278; Lacon v. Liffen, 
 (Ship- Mortgage-Deed), 4 Giff. 75; Mor- 
 ris v. Carman, (Share-Certificates), 31 
 L. J. Ch. 425 (Confirming similar de- 
 cisions in 2 M. D. & D. 625 and the 3 
 Dea. 625 and the 3 Dea. 185); Ridout 
 v. Lloyd, (transfer-ticket or Dock-Note) 
 (a case which might also have been de- 
 cided on the principle stated ante, p. 
 528 (m), Mont. 103. 
 
 (m) Ante, p. 514 (i), 517 (i). 
 
 («) See L. R. 10 C D. 413, /. 32-7; 
 L. R. 6 Ch. 631. 
 
 (o) Lacon v. Liffen.
 
 THE ORDER ANp DISPOSITION CLAUSE. 531 
 
 (a) (i) &c. tliough unendorsed (b) the amount secured by it 
 being the subject in question (a),) passes from the bank- 
 rupt to him whose interest is claimed (c), or to a receiver 
 acting on his behalf (d), or (perhaps (n)) to the sheriff (e) 
 (though acting at the suit of another (e)), or even to one to 
 whom the bankrupt has made a professing disposition of 
 them (f)\ nor if the goods be sold and the purchase-money 
 paid to him whose interest is claimed (g) &c; nor if the 
 goods be destroyed (h) (in); nor if the consent of him whose 
 interest is claimed be withdrawn (/) (iv). And each of 
 these circumstances operate whether the bankrupt him- 
 self (j) or he whose interest is claimed (k) or both (/) or 
 
 rect oi- not), that endorsement was essential to the transfer of any interest 
 (legal or beneficial) in the ship (m). But the acquisition of any document of title 
 from the bankrupt takes it (the document) out of his possession, and perhaps 
 also his order and disposition («), though it may not have that effect on the 
 fund represented by the document (o). 
 
 (i) As to whether this extends to documents by which the amounts owing on 
 the bills are further secured, see the cases in the note (p). 
 
 (n) An attempt has been made (q) to refer the cases in the note (f) to the 
 absence of the consent of him whose interest was claimed; but the court 
 professed to decide in those cases (f) that seizure takes the possession out of the 
 bankrupt, unless (as an earlier case (»') is admitted (s) to have established) the 
 seizure was so purely formal as to operate only on goods which the sheriff was 
 entitled to seize, it being a rule that a party who is not entitled to take 
 possession of goods can only do so by at least occupying the place where they 
 are (i), whereas a party who is thus entitled can do so by entering .and seizing 
 one article in the name of all («). 
 
 (in) In this case the bankruptcy-creditors have no claim on any sum for 
 which the goods may have been insured (h). 
 
 (iv) As to evidence of the withdrawal of consent, see below («). 
 
 (a) Ex. Mowbray, 1 J & W. 428; v. C. ; R. v. L.; M.; P.; B. 
 Ex. Price, (4th pt.), 3 M. D. & D. (m) See ante, p. 474. 
 
 595; Ex. Bam, It, (3rd. pt), D. G. 203. (») Gibson v. Overbury, 7 M. & W. 
 
 (b) M ; P. 555; explained in L R. 2 C. P. 530-1. 
 (c) D. v. L.; L. v. L ; M. v. C; V. (o) See L. R. 2 C. P. 530-1. 
 
 A C. r. F ; and the cases in note {a). (p) Ex. Prtre, (3rd pt.); e Barnett. 
 
 (rf) 7'. v. E. (3rd pt.) 
 
 (c) F. r B.; F. v. M ; Gr. (?) Edeyv. Cuthbertson, L. R. 19 Eq. 
 
 U) G. v. C.; \V. v. W. 266- 
 
 (r; Wikon v. Wilson, 29 L. T. N. (r) Barrow v. Bell, 5 E. & B. 540. 
 
 S, s6t). ( s ) ^ ee especially 2 D. G. J. 242. 
 
 (/j) Smith v. Bakewelt, Buck 149. (') Fletcher r. Henley, L. R. 5 C. D. 
 
 (i) 32-3 Vic, c. 72 (E.), s. 15 (5); 809; which compare with the cases 
 
 20-1 Vic , c. 60 (I.), s. 313. cited ante, p. 530 (*). 
 
 (j) IF. v. IF. (" ) Said F. r. H. 
 
 (k) N. A.C.x.F.; T. r E. («; p. 534-5. 
 
 (/) D. r. L.; G. v. C.\ L. v. L.; M.
 
 532 
 
 THE ORDER AND DISPOSITION CLAUSE, 
 
 Fraudulent 
 prevention of 
 withdrawal of 
 possession. 
 Notice to and 
 Knowledge of 
 holder, in case 
 of chose in 
 action. 
 
 some third person (a) have brought them about ; and though 
 concealed from the world (b); and though brought about 
 with intent to defeat bankruptcy-creditors (c); and though 
 the interest claimed was derived under the bankrupt (i); 
 but (when he whose interest is claimed has withdrawn the 
 possession; consent, &c.,) only if he has done so to enforce 
 his rights against the bankrupt (e). But none of these 
 circumstances operate if preceded (j) even on the same 
 day (g), by some event to which the bankruptcy relates 
 back, (unless (h) attended by such absence of notice and 
 other incidents as to bring it within the protecting clauses 
 (i)) ; nor (of course) if the possession passes merely to one 
 who is to hold it on behalf of the bankrupt (j) ; nor if it be 
 afterwards restored to the bankrupt (k) ; 
 
 Nor does the clause apply if the possession would have 
 been withdrawn but for the fraud of the bankrupt (I). Nor 
 does the clause apply (w) to such choses in action (n) as 
 fall under the rule already (o) stated respecting priorities,, 
 if knowledge (i) of the rights of him whose interest is 
 
 (i) However, absence of knowledge and of all attempt to communicate it 
 does not make it certaiu that the fund &c. is in the reputed ownership of the 
 bankrupt (p). 
 
 (a)F. v. M.;F. r.B.; Gr. 
 
 (6) N. A. C. r. F., p. 413 /. 31-4. 
 
 (c) N. A. C. r. F., p. 414 /. 2, 3; 
 Jones v. Dwyer, 15 Ea. 21 , overruling 
 in effect Darby v. Smith, 8 T. R. 82, 
 and Toussaint v. Hartop, Holt 335, ex- 
 cept so far as they are referrible to the 
 principle stated below, n. (e). 
 
 (d) As in most of the above cases. 
 
 (e) N.A. C.r.F., p. 413 /. 35-7, 414 
 /. 5-6. 
 
 (f) Authorities directed (in the ad- 
 denda) to be inserted in p. 70 (i), and 
 71 (i). 
 
 (g) Ex. Richardson, 3 Dea. 506; and 
 see as to corresponding point on the 
 Bills of Sale Act, ante, p. 514 (m), 515 
 
 (h) Re Wright, L. R. 3 C. D. 70, 
 
 modified as to the bankruptcy (under 
 the former law) of a pauper prisoner 
 for debt in Bramwell v. Eglington, L. 
 R. 1 Q. B. 494. 
 
 (0 32-3 Vic, c. 71 (E.), s. 94-5; 
 see 20-1 Vic, c. 60 (I.), s 328-9; below 
 Ch. LXII. ■ 
 
 (j) Ante, p. 523 (e). 
 
 (fc) E. Shuttleworth, 1 D. & Ch. 223. 
 
 (/) Ex. Bell, I D. G. 577. 
 
 (m) Agra Bk. r. Worcester, L. R. 3 
 Ap. 555; in which (at p. 561, / 24- 
 35) the matter is explained; Day v. 
 Day, 1 D. G. J. 144; Gardner v. Lach- 
 lan, 4 M. & C. 129; e. Richardson, 3 
 Dea. 506 ; Rogers r. Selly, 25 L. J. Ba. 
 41 ; Stuart r. Shelley, 11 Jur. N. S. 25, 
 and very many other cases. And see 
 ante, p. 432 (d). 
 
 (n) Defined, ante, p. 3. 
 
 (o) Ante, p. 388, ('), 439 sqq. 
 
 (p) Ex. Heathcote, 2 M. D. & D. 71 1 ; 
 Ex. Pooley, ib. 505, contra, sd. 3 K. & 
 J. 140, and perhaps in Cooke v. Hem- 
 ming, L. R. 3 C. P. 334, and see 
 Thompson v. Speirs, 13 Sim. 473-4.
 
 THE ORDER AND DISPOSITION CLAUSE. 533 
 
 claimed has been communicated to the person prescribed 
 by that rule (a) (i): and the clause is equally excluded 
 whether the knowledge was acquired from the bankrupt 
 (b), from the party interested (c), or otherwise (d); and 
 though the fund was likely to be broyght into court (e), and 
 was (after the time to which the bankruptcy relates back) 
 brought there (e) ; but not if the subject was a joint-stock- 
 share standing in the name of the bankrupt (f); nor if the 
 knowledge was communicated casually (g) (n) and acquired 
 outside the course of business (h); nor if some event to 
 which the bankruptcy relates back (i) happened before it 
 was acquired (j) and the circumstances which are enumer- 
 ated in the protecting clauses (k) were absent (/). But 
 knowledge in one member of a company (though unincor- 
 porated) is not deemed knowledge in the company (ni). 
 Nor perhaps («) is knowledge sufficient when the fund is in 
 court, unless (o) the concurrence of the holder, trustee, 
 &c, would be necessary to a disposition of it, but a stop- 
 order is (p) an effectual substitute. And knowledge of a 
 dealing with a debt which afterwards becomes charged 
 
 (i) The question whose knowledge is sufficient for this purpose and whose 
 for that are always discussed as one. The knowledge of a former owner is not 
 sufficient (q). ■ 
 
 (n) Whether the communication was casual is a question for the jury, and 
 this seems to be the only point decided in the case in the note (r). 
 
 (a) See ante, p. 435, sqq. (fc) Referred to ante, p. 533 (j). 
 
 (6) A . B. r. W. ; R. (0 Ex. Slyan, (2d. pt.), 2 M. D. & D. 
 
 (c) G. v. L. 219, which is not contradicted by 
 
 (rf) R. v. S.; S. v.S. Caldwell r. Currie, L. R. 13 Eq. 188, 
 
 (e) D. v. D. for there it appears to be highly pro- 
 
 (/) Ex. Lancaster C. N. Co. r. Dilworth, bable that the true owner knew of the 
 
 (2ndpt.), 1 D. & Ch.4 11, overruling (in bankruptcy. 
 
 effect), Pooley r. Atkinson, 2 M. D. & (m) Thompson v. Speirs, 13 Sim. 469. 
 
 D. 505. ( B ) See, however, 1 D. G. J. 136 /. 
 
 (g) Edivards v. Martin, L. £. 7 Eq. 1-3. 
 
 121, qualified Smith v. Smith, 2 Cr. & (o) Matthews v. Gabb, 15 Sim. 51. 
 
 M. 231. (f) Bartlett v. Bartlett, 1 D. G. J. 
 
 (A) Essential, A.B.r. W. 127; see also Stuart v. Cockerell, L. R. 
 
 («) See Authorities directed in the 8 Eq. 607, which qu. 
 
 addenda to be inserted in p. 70 (i) and (?) Bartlett v. Bartlett, 1 D. G. J. 
 
 71 (i). 135-6. 
 
 (j) Pooley r. Atkinson, 2 M. D. & D. (r) Edwards v. Scott, 1. Man. &. Gr. 
 
 505. . 962.
 
 534 
 
 THE ORDER AND DISPOSITION CLAUSE. 
 
 Supplementary 
 matters. 
 Evidence of 
 Reputation of 
 Ownership. 
 
 Evidence of 
 Consent and of 
 withdrawal of 
 it. 
 
 upon a fund in court takes the security as well as the debt 
 out of the creditor's order and dispositions (a), whether the 
 fund be in court when the dealing is made (b), or be after- 
 wards brought there (c). 
 
 Whether any, and how many, of those who gave credit 
 to the bankrupt reputed him owner of the goods cannot be 
 positively ascertained. It therefore becomes necessary to 
 fix on certain circumstances as presumptive proof that all 
 thus reputed him who knew the situation of the goods (for 
 the knowledge of others is not material (d)). The question 
 what circumstances shall be fixed on is one of law (e) ; but 
 the question what rare circumstances may have the same 
 effect (f), and by what circumstances the presumption may 
 be rebutted (g), depend on details so minute as seldom to 
 afford precedents, and are therefore treated as questions of 
 fact; although evidence of general reputation is also 
 admissible (h); and ownership once existing raises a 
 presumption that the reputation of it continues after itself 
 has ceased (i). The circumstances have already been 
 mentioned which are considered evidentiary of reputed 
 ownership (j), and of change in it (k). 
 
 So the question whether Consent (I) to the bankrupt's 
 possession has been given by him whose interest is claimed 
 can often be determined only by circumstantial evidence; 
 and the courts have decided that it may be presumed 
 though he relied on his solicitor (m) ; — and that the circum- 
 stance that the goods would be damaged by removal 
 prevents it being implied (n) ; and that its withdrawal, 
 
 (a) Day v. Day, 26 L J. Ch. 585; 
 Lord v. Colvin, 2 Dr. & Sm. 82. 
 (6) L. v. C. 
 
 (c) D. v. D. 
 
 ( d) Sd. Watkins v. Couston L. R. 8 Ch. 
 528-9; sd, Vaux r. Comton, L. R. 9 
 Ch. 605-8. 
 
 (e) Re Styan, 1 M. D. & D. 219. 
 (/) Prismall v. Lovegrove, 6 L. T. 
 
 N. S. 329. 
 
 (g) Edwards v. Scott, I M. & Gr. 962. 
 
 (h) Gurry. Rutton, Holt- 327. 
 
 (i) Lingard v. Messiter, 1 B. & C. 308. 
 
 (j) Ajite, especially p. 522 («)— 523 
 (j), 523 {m), 524 (6,o). 
 
 (A) Ante p. 524 (/), 526 (/>)-532 (/), 
 533 (n)-534 (r). 
 
 (/) As to its necessity, sec ante, p. 
 524 (», *). 
 
 (in) Bartlett v. Bartlett, (2d. pt), 1 
 1 D. G. J. 127. 
 
 («) Pennell v. For, I F. & F. 617.
 
 THE ORDER AND DISPOSITION CLAUSE. 535 
 
 (which, if it happen before the time to which the bank- 
 ruptcy relates, takes the case out of the clause as effect- 
 ually as if consent had never been given (a)), will be 
 inferred from his attempting to take possession (b), and 
 from his directing his agent to take it (c) (at least if the 
 agent begin to act (d)) ; and will, when the chattel is on 
 board ship (e), or is such a chose in action as falls under 
 the rule already (f) stated (whether it be a debt (g), shares 
 (h), proceeds of sale of a Commission (/), a Reversionary 
 interest in a fund (j) or otherwise (k)), be inferred from his 
 giving (I) or posting (in) a notice to the person by whose 
 knowledge priorities would be regulated («) or to the person 
 most nearly occupying that position (o) or. to his solicitor 
 (p); — and that posting such a notice is equally effectual 
 though it does not reach him till after the time to which 
 the bankruptcy relates (q), or at all (r) ; and though it might 
 have reached him sooner (5), or in time(t), if posted earlier. 
 The acquisition of documents of title (when such exist) is 
 not equivalent to withdrawal of the consent (u), but has 
 been said to be necessary to make notice effectual (v). 
 
 Bills of Exchange (w) and Bank Post Bills (x) which the Bills of Ex- 
 change, &c. 
 
 («) Ante, p. 531 (i). (o) G. v. M. 
 
 (b) Cohen r. Sparke, 40 L.J. Ba. 14; (p) II. v. £?.; compe. with ante, p. 
 
 Montague r. O'Brien, L. R. 1 C. D. 554. 462 («). 
 
 (O Re Eslick, L R. 4 C. D. 496. (q) A.v. B.;B. v. B. 
 
 (d) As in E. (r) A.v.B. (as to Notice). 
 
 (e) Acramanv. Bales, 2 E. & E. 456; (s) A. v. B. ; K. 
 e. Kelsall, D. G. 352. (0 A. v. B, 
 
 (/) Ante, p. 388 (/), 439, sqq. («) Ante, p. 533 (o). 
 
 (g) Belcher v. Bellamy. 2 Ex. 308. (i>) Jones v. Gibbons, 9 Vez. 410 /. 
 
 ( h) Littledale r. Pearse, 6 D. G. M. G. 13. 
 
 714. (to) Armistead r. Dilworth, 2 Gl. & 
 
 («) Glover t. Moore, 39 L. J. N. S. J. 371; Atkins r. Wise, 3 M. D. & D. 
 
 Ch. 98 108; BARKWOHTH r. HARRI- 
 
 (j) Rickardsv.Gledstones, 5 L. T. N. SO V, 2 D. G. J. 194; Frere r. Sikes, 
 
 S. 568, affirming S. C 3 Giff. 298. Mont. & M. 263; Hankey r. Douglas, 4 
 
 (k) Ex. Hickey, 10 I. R. Eq. 117. Dea. 1 ; Jombart v. Woollett, 2 M. & Cr. 
 
 (/) L. r. P.; and most of the cases 389; e. PEASE, 19 Vez. 25; Sargeant 
 
 cited ante, p. 532 (m). r. Burroughs, 1 Rose 153, explained 
 
 (m) A.v. B.;B.v. B.;K. 2 D. G. J. 205-6; Smith r. Power, 
 
 (n) See Ante, p. 533 (a), and Yate (concise), Buck. 355; Thompson v. Giles, 
 
 Lee on Bankruptcy, (1st Ed.), 154-5, 2 B. & C. 422. 
 
 and see e. Barnett, (2d. pt.), D. G. 194. (x) Atkins r. Wise.
 
 536 THE ORDER AND DISPOSITION CLAUSE. 
 
 bankrupt holds as remitted to him for any particular 
 purpose (a), especially that of collection (&), are exempted 
 from this enactment, on the ground that his possession of 
 them is fiduciary (c) ; whether the bankrupt be the .Banker 
 (d), correspondent (e) or agent (f) of the remitter. And 
 bills remitted to a banker (g) or banker's town agent (h), 
 or (under certain arrangements) to a mercantile correspon- 
 dent (z) are presumed to have been remitted for the purpose 
 of collection (j) though they be endorsed to the bankrupt 
 (k) and not entered as short (/). And this presumption is 
 very difficult to rebut (m) in case of a banker (m), but can 
 be rebutted by proof that he purchased the bills (n) in which 
 case they pass to his bankruptcy-trustee, not as in his order 
 and disposition, but as his property. Of course a bankrupt 
 receiving a bill on trust for a third person is not entitled to 
 any lien on it against the remitter (j). 
 
 Money received from sale &c. of such bills, and money 
 from time to time representing it, is subject to a 
 constructive trust for the remitter under the same circum- 
 stances as the bills themselves would be (o). 
 
 (a) Authorities cited ante, p. 535 n. (/) B. r. H.; P.; T. v. G., p. 423 /. 
 
 (toy (from foot) 6. 
 
 (b) D. r. H.; P. ; S. r. P. (m) See B. r. H. p. 201 , 202 (in) ; S. r. 
 
 (c) See ante, p. 528 (»»). B.; T. v. G., (modified ib., p. 430 /. 1- 
 
 (d) A. r. W.; F. r. S.;P.; S. v. B.; 6). 
 
 T. v. G. (n) See P., p. 44; sd., T. v. G.; p. 
 
 (e) /. v. W. ; S. r. P. 428-9. 
 
 (/) H. r. D. (o) Bond r. Forster, 1 M. D. & D. 
 
 (g) B. r. H.; T. v. G. 10, especially p. 15; and see 3 M. D. 
 
 (A) A. r. D.; P. & D. 107-8; and 19 Vez. 44 /. 14-15, 
 
 (i) J.r. W. and contra, 19 Vez. 37 /. 27-8, 46 /. 21- 
 
 (j) A.r. W.; B. r. H.- S. r. B.; T. 2. But this contrary doctrine seems 
 
 v. G. founded on the doctrine of Taylor v. 
 
 (k) A.r. W.; B. r. //.; T. v. G., p. Plainer, now overruled, see L. R. 13..C. 
 
 424 /. 4. D. 717.
 
 ( 537 ) 
 
 CHAPTER LX. 
 
 PRIORITY DPDG. ON FRAUD IN THE DISPONOR: GENERALLY. 
 
 We now (a) come to the last principle by which priorities 
 are regulated, namely, that one who acquires an interest 
 in property under a dealing by which the disponor &c. 
 designs, or which to his knowledge tends, to defeat those 
 to whom an inconsistent claim, founded on value or on 
 public policy, may afterwards, through his dealings or 
 conduct, accrue, is postponed to those claims. A more 
 reasonable rule might have been that one who acquires an 
 interest in a dealing by which he himself designs, or which 
 to his knowledge tends, to produce such a result, should 
 be thus postponed ; but the legislature has preferred to lay 
 down the other rule and then except cases in which the 
 interest is acquired for value in good faith,— probably 
 because they considered the preponderance of moral right 
 to be in favour rather of a claim founded on value or policy 
 than of a gift which (however innocently accepted) was 
 made with a fraudulent tendency or design, — or because 
 they deemed the retention of the property fraudulent after 
 knowledge that it had been bestowed with such a tendency 
 or design, and the ascertainment of the precise moment 
 when that knowledge was acquired impossible. 
 
 From the above principles flow three rules, which 
 necessarily differ somewhat in detail: — that available by 
 Creditors claiming independently of bankruptcy &c, who, 
 because their claim lies equally against all the debtor's 
 property of any given kind, and would therefore (if allowed 
 to overreach all his dealings save those made for value in 
 good faith) be too great a clog on alienation, are permitted 
 
 (a) The other principles are stated ante, p. 345, 358, 363, 375, 495. 
 
 68
 
 538 PRIORITY DPDG. ON FRAUD &C: GENERALLY. 
 
 to displace such dealings only as are fraudulently intended, 
 or likely to leave the debtor insolvent; — that available by 
 Creditors, but only on the Bankruptcy &c. of the debtor, 
 in which case they overreach such other dealings also as 
 tend unfairly to prevent the equal distribution of assets ; — 
 and that available by Purchasers &c, whose claim, confined 
 to a particular subject, prevails against all whose moral 
 right is considered inferior to their own. But the claims 
 of each of these classes are restricted in the manner about 
 to be stated.
 
 ( 539 ) 
 
 CHAPTER LXI. 
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT CONVEYANCES. 
 
 of the Rule. 
 
 The first rule deducible (a) (i) from the principle just (b) Frauds upon 
 stated has been formulated by a statute (c), which is Creditors and 
 
 J v '' I ransmittees 
 
 liberally construed to prevent fraud (d), and is said (e) to be in general. 
 
 but a declaration (f) and expansion (g) of judiciary law. 
 
 A creditor (f), even under a bond obtained without giving 
 
 value (h), is entitled, as is also (it seems) any transmittee 
 
 for value (/) (including the Crown claiming for Forfeiture 
 
 (j) or an Heir-in-Tail claiming by descent (k)), to priority 
 
 over dealings (d) or clauses in dealings (/) with the debtor's 
 
 property; whether the remedy which he seeks is to recover Applicability 
 
 Possession (k) or Damages (w), or to obtain a Declaration 
 
 of his rights («) ; or to Administer the debtor's estate, after 
 
 the latter's Death (0), or in Bankruptcy (p), or Winding-up 
 
 (q); or to Levy an Execution (r) or a Distress (11); or to 
 
 (I) Many of the questions respecting the application of this rule receive the 
 same solution respecting that of the rule (*) available by Purchasers. As re- 
 gards these, the authorities applicable to either rule are cited in this chapter, 
 but distinguished by parenthetical statements. 
 
 (II) As a landlord can distrain goods of a third person while on the premises, 
 the question whether this statute applies in favour of a Landlord distraining 
 can only arise when the goods have been removed, and in that case, a similar 
 rule applies under a later enactment (<)• 
 
 (a) Ante, p. 538. (m) Edwards v. Harben, 2 T. R. 587. 
 
 (6) Ante, p. 537. («) Mackay v. Douglas, L. R. 14 Eq. 
 
 (c) 13 El., c. 5 (E.); 10 Cha. I, sess. 106; Crossley v. Elworthy, L. R. 12 C. 
 2, c. 3 (Ir.). D. 158; Reese River M. Co. v. Atwell, 
 
 (d) Twyne's Case, 3 Co. 82a; sd.. Ca- L. R. 7 Eq. 347; see Blenkinsopp v. 
 dogan v. Kennelt, Cowp. 434, s. 11, 12. Blenkinsopp, 1 D. G. M. G. 495. 
 
 (e) 3 Co. 8b; Cowp. 434. (o) Freeman v. Pope. L. R. 5 Cli. 
 
 (f) E. [i.e. English Statute], s. 2; 538; Taylor v. Coenen, L. R. 1 C. D. 
 Ir. [i.e. Irish Statute], s. 10. 636; Saunders' Estate. 
 
 (g) Adames v. Hallett, L. R. 6 Eq. (p) Jones v. Gordon, L. R.2 Ap. 616; 
 468. [133. C. v. £.; Holmes v. Penney, 3 K. & J. 
 
 (ft) Stone v. Vanheythuysen, 11 Hare 104. 
 
 (i) The statute enumerates several. (</) Reese River §c. Co. v. Atwell, L. 
 
 (j) Pauncefoot v. Blunt, Lane 44, 45, R. 7 Eq. 347. 
 cited 3 Co. 82a; Raleigh's Case, Lane (r) Twyne's Case, 3 Co. 80b. 
 
 48; r. Saunders' Estate, 4 Giff. 149. (s) Discussed below, Ch. LXIII. 
 
 (fc) Leonard v. Bacon, Cro. El. 234. (I) 11 Geo. II, c. 19, s. I. 
 
 (0 French v. French, 6 D.G.M. G.95.
 
 540 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C, 
 
 charge the disponee (after the debtor's death) as Executor 
 in his own wrong (a): and whether the subject be a Tene- 
 ment (b), or a Chattel (b): and whether the postponed 
 dealing was a disentailing (c) (i) or other disposition, a 
 collusive (n) Suit Judgment or Execution (d), a Bill of 
 Exchange (e), Bond (d), &c, or (much more) a contract to 
 give any of these; and whether the intention or tendency 
 was to defeat (f) or merely to delay (f) (m) creditors &'c; 
 and though the subject be such as could not be taken in 
 execution at the time the act (g) was passed, if it could 
 when the dealing occurred, as, Stock (h) ; and though the 
 postponed dealing was accompanied by any pretence, 
 colour, feigned consideration, or expressing of a use (f); 
 and though it was made under a general (iv) Power (i); or 
 through the medium of a Trust (j)- r and though the 
 intention was to defeat &c. one debt only (k) whereas the 
 dealing is postponed to all (k) ; and though that debt was 
 one for which the debtor in question was but a Surety (l)' r 
 and though it was a future (m), (or even inchoate (m), as 
 a sum to be claimed for Costs (n) Alimony (u) or Damages 
 
 (i) A disposition displaced under this rule is as effectual in barring issue in 
 tail and estates lying behind estates tail as one not so displaced («). 
 
 (n) This word must be implied, because otherwise there could be no inten- 
 tion on the debtor's part, nor tendency arising from his conduct, to defeat creditors. 
 
 (in) Hence, such assets only as will be available when the debt becomes pay- 
 able are to be reckoned in determining whether the settlor was solvent (p). 
 
 (iv) That is, a Power togive the property to whomsoever the party pleases. 
 
 (a) Edwards v. Harben, (2d. point), Stone v. Vanheylhuysen, 11 Hare 133; 
 
 2 T. R. 587. Strong v. Strong, 18 Bea. 408. 
 
 (6) E. s. 2; I. s. 10. (/) Mr. Dart cites Goodrickev. Taylor, 
 
 (c) Implied in E. s. 3, and in Tarle- 2 D. G- J. S. 135, as proving this, but 
 ton v. Liddell, 17 Q. B. 415. it arose in bankruptcy, and cannot be 
 
 (d) E. s 1; I. s. 10. safely relied on in favour of any but 
 
 (e) Jones v. Gordon, L. R. 2 Ap. 616. bankruptcy-creditors, as appears espec- 
 
 (f) E. s. 2; I s. 10. ially from 2 H. & M. 387 /. 21. See 
 
 (g) 13 El. c. 5; 10 Cha. I. (Ir) sess. also Bolt v. Smith, 21 Bea. 511. 
 2 c. 3. (m) Sd. in effect, Barling v. B. 
 
 (h) Barrack v. Mc. Culloch, 3 K. & (n) Blenkinsopp v. Blmkinsopp, 1 D. 
 
 J. 110. G. M. G. 495. 
 
 (i) Whittingionv. Jennings, 6 Sim A93. (o) Tarleton v. Liddell, 17 Q. B. 415. 
 
 ij) Magawley's trusts, (Trust void (p) Freeman v. Pope, L. R. 5 Ch. 543' 
 
 agt. Creditors), 5 D. G. S. 1. /. 2-4, 545 /. 7-11. 
 
 (k) Barling v. Bishopp, 29 Bea. 417,
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 541 
 
 for a Wrong (a) or for a breach of Trust (&)); and though 
 an action to recover it was pending (c); and though the 
 debtor was too weak in mind to realize the tendency of the 
 dealing (d), (at least if all his property was disposed of by 
 it (e) and the disponees understood its nature (e)); and 
 though it consisted merely in procuring a disposition of the 
 property from some other person (f) (i); and though the 
 debtor has, by subsequent outlay, increased the value of 
 his disponee's interest, which he would not have done if 
 he had known that his creditors could displace it (g), (for 
 each outlay is a further fraudulent dealing); and though all 
 debts owing when the dealing took place were paid before 
 the commencement of proceedings to set it aside (h). 
 Even creditors becoming such after the dealing took place 
 may displace it under this rule (z). And a debtor herself 
 has been held (j) entitled to set aside, for the purpose of 
 paying her creditors, a limitation to whomsoever she might 
 appoint and (on failure to appoint before her death) to 
 those on whom it would then have devolved if she had 
 been owner. 
 
 (i) In this case the money is the only thing with which the debtor deals, un- 
 less he has, before the conveyance, acquired (by a contract) an interest in the 
 subject of purchase. Consequently, in that case only can the dealing be post- 
 poned to purchasers &c by the statute discussed below (k), and in that case 
 only could it be postponed to creditors by this statute (/) until the recent enact- 
 ment (»j) by which Sheriffs are authorized to take money in execution, since 
 which the rule now under discussion ha>s been extended (n) to money. 
 
 (a) Barling v. Bishopp, 29 Bea. 417. Gardner, L. R. 7 Eq. 317; Graham v. 
 
 (6) Strong v. Strong, 18 Bea. 408. Furber, 14 C. B. 417 (fin.); Ede v. 
 
 (c) Darville v. Terry, (Mortgage valid Knowles, 2 Y. & C. Ch. 172, (in which 
 against Creditors), 6 H. & N. 807. however the pit. seems, from p. 178, to 
 
 (d) Cornish v. Clarke, ( Settlement have succeeded not as creditor, but as 
 void against Creditors), L. R. 14 Eq. purchaser). 
 
 184. (*) Freeman v. Pope, L. R. 5 Ch. 545; 
 
 (e) As in C. v. C. Jenkyn v. Vaughan, 3 Drew. 425. 
 
 (f) Barton v. Vanheythuysen, (1st (j) Paul v. J'aul, L. R. 15 C. D. 580. 
 point) (Trust-deed void agt Creditors) (*) Ch. LXIII. 
 
 11 Hare 126; Barrack v. Mc.Culloch, (/) Sugden on Vendors (Nth Ed.), 
 
 (same), 3 K. & J. 110; French \. French, 706; Authorities cited in 3 K. & J, 
 
 (same), 6 D. G. M. G. 95. 117 (in). 
 
 (g) Taylor v. Coenen, (Settlement («) 1-2 Vie, c. 110(E.), s. 12; 3-4 
 void agt. Creditors), L. R. 1 C. D. 636. Vie, c. 105 (I.), s. 20. 
 
 (/») T. v. C, p. 640-1; Mackay v. 
 Douglas, L. R. 14 Eq. 106; Ware v.
 
 542 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 
 
 Conditions 
 the Rule. 
 
 Exceptions 
 the Rule. 
 
 of But the rule is confined to property capable of being 
 
 taken in execution (a); and only applies (b) if the 
 embarrassment of creditors &c. was either the intention (c) 
 or the obvious tendency (d) of the impugned dealing or 
 limitation, — a circumstance equally necessary though the 
 debtor may have afterwards so dissipated the assets which 
 he had when he made it as to preclude the payment of his 
 debts, some of which also existed at that time (e); and 
 (perhaps) only if either the debts then owing exceeded the 
 then available assets (exclusive of the interests parted with 
 (f)), or some debt then owing continued so till the 
 commencement of proceedings for displacing the dealing 
 (g), or the then existence of an intention (as distinguished 
 from a tendency) to defeat &c. creditors &c. is proved (h) ; 
 and of course it only applies in favour of the specified 
 classes (i), amongst whom the Crown claiming for Out- 
 lawry is not (j), nor is a mere third person (k), nor (it has 
 been held (I)) is an Administrator (even when seeking to 
 apply the subject in question to the payment of debts) 
 included. But any sum which may have been paid for the 
 postponed disposition seems to constitute a debt from the 
 disponor to the postponed disponee (m), unless the latter 
 has acted so dishonestly in the matter as to be disentitled 
 to this («). 
 
 t0 And the rule does not apply against one who gives value 
 
 (a) Rider v. Kidder, 10 Vez. 360 
 qualified ante, p. 540 (g). 
 
 (6) Suggested, Freeman v. Pope, (2d. 
 point), L. R. 5 Ch. 538; sd. Holmes v. 
 Penney, 3 K. & J. 99 (fin). 
 
 (c) E., s. 2; I, s. 10. 
 
 (rf) Sufficient, Freeman v. Pope, L. 
 R. 5 Ch. 543-4; Mackay v. Douglas, L. 
 R. 14 Eq. 121; Crossly v.Elworthy, L. 
 R. 12 Eq. 164 / 25-32. 
 
 (e) Kent v. Riley, L. R. 14 Eq. 190, 
 (which covers Holloway v. Milbard, 1 
 Madd. 414.) 
 
 (/) Sd., Holmes v. Penney, 3 K. & J. 
 99, 100; sd. Spirrett v. Willows, 3 D. G. 
 J. S. 293. 
 
 (g) See below, p. 547, where I cite 
 Lewin on Trusts 63 (/) ; H. v. P. 
 
 (A) Sd. Freeman v. Pope, L. R. 5 Ch. 
 544-5 ; Spirrett v. Willows. 
 
 (i) Ante, p. 539 (f,i,j,k). 
 
 (j) Goldsmith v. Russell, 5 D. G. M. 
 G. 557. 
 
 (Jfc) White v. Morris, 11 C. B. 1015; 
 Bessy v. Windham, 6 Q. B. 166. 
 
 (/) Hawes v. Leader, Cro. Ja. 271, 
 Yelv. 196; sd. Orlabar v. Harwarr, 
 Comb. 348. 
 
 (m) Jones v. Gordon, (Transaction 
 void agt. Creditors), L. R. 2 Ap. 616. 
 
 («) Hall r. Townsend, L. R. 14 C. D. 
 137.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 543 
 
 (a) for the impugned dealing (b), though that dealing be Value given 
 such that it would be postponed to bankruptcy-creditors p Ugn ed deal- 
 (c) as comprising all the debtor's property (d) or as a ln S- 
 fradulent preference (e); and though the debtor was 
 insolvent (j) to his own knowledge (f) and to that of the 
 preferred creditor (g) when it took place; and though he 
 continued in possession under its authority until the 
 commencement of proceedings to displace it (h); and 
 though it was not communicated to the party deriving 
 under it (A), who was his relative (*"); and though the 
 consideration was not (j), nor was the existence of 
 unspecified considerations (k), mentioned, while another 
 consideration was stated (/), provided that, in cases 
 falling under the rules (m) by which evidentiary formalities 
 are required, some exceptional circumstance («) (such as 
 partial render of the consideration (o) — marriage not being 
 sufficient {p) unless preceded by a transfer to trustees (q) — ) 
 
 (a) Defined ante, p. 142 (a). 
 
 (6) E. (Creditors), s. 5; Ir., s. 14; 27 
 EM. c. 4 (E.) (Purchasers), s. 4; Ir. s. 3; 
 exemplified, as between husband and 
 wife, Cox v. Reed, (Settlement valid agt. 
 Creditors), L. R. 1 C. D. 302. 
 
 (c) Under the doctrine stated below, 
 Ch. LXH. 
 
 (d) Alton v Harrison, (Trust-deed 
 for some Creditors valid agt. the rest), 
 L. R.4 Ch. 622, 626; Boldero v. London 
 Sec. Co., (same), L. R. 5 Ex. 47; Janes 
 v. Whitbread, (same), 11 C. B. 406; 
 Games r. Bamford, (Mortgage valid agt. 
 Creditors), L. R. 12 C. D. 314. See 
 Allen v. Bonnett, (Trust-deed for some 
 Creditors valid agt. the rest), L. R. 5 
 Ch. 577, and Siggers v. Evans, (same), 
 5 E. & B. 567, explained L. R. 8 C. 
 D. 751. 
 
 (e) A. v. H., B. v. L. $c; Darville 
 v. Terry, (Mortgage valid agt. Credi- 
 tors), 6 H. & N. 807; Exlon v. Scott, 
 (same), 6 Sim. 31 ; Holbird v. Anderson, 
 (same), (strong case), 5 T. R. 235; 
 Middleton v. Pollock, (same), L. R. 2 
 C. D. 104; and see L. R. 8 C. D. 751, 
 /. 25. 
 
 (f)A.v.H. 
 
 (g) Sd. M. v. P., p. 108, /. 27-9. 
 
 (A) M. v. P. 
 
 (i) D. v. T. 
 
 (j) Bayspooh v. Collins, (Settlement 
 valid agt. Purchaser who knew of it), 
 L. R. 6 Ch. 228; Townend v. Taker, 
 (same), L. R. 1 Ch. 459-60; Pott v. 
 Todhunter, (same), 2 Coll. 76; Thomp- 
 son v. Webster, ( Settlement valid agt. 
 Creditors), 4 D. G. J. 600. 
 
 (4) Gale v. Williamson, (Disposition 
 valid agt. Creditors), 8 M. & VV. 405; 
 T. v. T. 
 
 (/) G. v. W. ; T. v. T. ; said (with 
 regret), 31 L. T. N. S. 2-3. 
 
 (m) Ante, p. 178-184. 
 
 («) Ante, p. 185-190. 
 
 (o) This occurred in all the cases 
 cited, and seems to be necessary accor- 
 ding to Warden v. Jones, (Settlement 
 void agt. Creditors), 2 D. G. J. 76. 
 
 (p) Ante, p. 189; W. v. /.; and 
 authorities cited in Hunt on Fraudulent 
 Conveyances, 32 (g), 33 (A). 
 
 (q) Sd. Cooper v. Wormald, (Settlement 
 valid agt. Creditors), 27 Bea. 266.
 
 544 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 
 
 be proved (i), or (perhaps) the settlement be made (a), 
 though not necessarily stated to have been made (a), in 
 pursuance of a written contract for value ; and though 
 false statements were inserted in the document by which, 
 the dealing was effectuated (b); and (it seems) though a 
 great part of the consideration afterwards failed (c), (at 
 least if the rest was irrevocable, as, a Marriage (d)); unless 
 (in each of the above cases) the impugned dealing was 
 accepted in bad faith {e), that is, was acquired either by 
 fraud against the disponor (f), or on a trust for him which 
 trust was to be kept secret so as to defeat his creditors (g) ; 
 or was accepted with knowledge of an intention in the 
 disponor to defeat his creditors (h) (n) or of circumstances 
 strongly indicative of such an intention (*'), (and not 
 merely with negligence, however gross, in omitting to use 
 the means of knowledge (j)). 
 
 (i) There is a strong presumption that a settlement expressed to he in con- 
 sideration of natural affection has no other consideration (k). Even a statement 
 
 that unspecified considerations exist does not make proof of them unne- 
 cessary (/). 
 
 (n) As to what constitutes evidence of ignorance, see the cases in the 
 note (a). 
 
 (a) Ferrars v. Cherry, (2d. point), agt. Creditors), 21 Bea. 511; Colum- 
 (Settlement valid agt. Purchaser who bine v. Penhall, (same), 1 S. & G. 228, 
 knew of it), 2 Vern. 384; denied Sen- (which contrast with Campion v. Cotton, 
 house v. Eurle, Amb 288. 17 Vez. 263 a); Holmes v. Penny, 
 
 (b) Kevan v. Crawford, (Covenant in (same), 3 K. & J. 90; Jones v. Gordon, 
 a Settlement valid agt. Creditors), L. (transaction void agt. Creditors), L. 
 R. 6 C. D. 29; Campion v. Cotton, R. 3 Ap. 616; Sd. L. R. 5 Ch. 544 
 (same), 17 Vez. 263. (fin). 
 
 (c) See Lloyd v. Lloyd, 2 M. & Cr. (h) As in C. v. C. Necessary accor- 
 199, and Jeston v. Key, L. R. 6 Ch. ding to Kevan -v. Crawford, L. R. 6 C. 
 610. D. 29, and Campion v. Cotton, 17 Vez. 
 
 (rf) As in L. v. L. 263. 
 
 (e) Creditors, E. s. 5; Ir. s. 14. (i) /. v. G. ; Suggested ex. Mc. Burnie, 
 This was the case in Bolland v. Clint, ID G. M. G. 447. 
 
 (Settlement void agt. bankruptcy-cred- (j) Sd. L. R. 2 Ap. 546, /. 25. 
 
 itors), L. R. 17 Eq. 115; C. v. P.; (k) Levy v. Creiyhton, (Settlement 
 
 Cornish v. Clark. (Settlement void agt. void agt. Purchaser), 31 L. T. N. 
 
 Creditors), 42 L. J. Ch. 16. S. 1. 
 
 (f) Dickinson x. Burrell, L. R. 1 Eq. (/) Kelson v. Kelson, (Settlement 
 337, seriously qualified in de Hoghton questioned by a Purchaser), 10 Hare 
 v. Money, L. R. 2 Ch. 164. 385. 
 
 (g) Bott v. Smith, (Settlement void
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 545 
 
 Nor does the rule apply against one who does an impor- 
 tant act (a), as Marriage (b) (i), in reliance on the 
 impugned dealing, (it not being clear, however, that, if 
 the act be estimable in money, as when it consists in 
 making improvements, he is entitled to more than a lien 
 (c);) nor against one who, on the occasion of a subsequent 
 dealing, gives value for an interest derived under the 
 impugned dealing (d); unless either the claims of the 
 creditor attached on the property before the act was done 
 or value given (e); or the circumstances (f) occur which 
 have been stated as rebutting the exception founded on the 
 giving of value for the impugned dealing itself. 
 
 Nor does the rule seem (g) to apply against a limitation 
 which the debtor has made in favour of his (h) or her (i) 
 
 (i) A leading text-writer (j) carries this further; hut qu. on principle and 
 authority. 
 
 Acts done in 
 reliance on the 
 impugned 
 dealing, and 
 value given for 
 a disposition 
 derived under 
 it. 
 
 Meritorious 
 consideration 
 supporting the 
 impugned 
 dealing. 
 
 (a) East India Co. v. Clavell, (Settle- 
 ment valid agt. Creditors), Gilb. Eq. 
 37; Prodgers v. Langham, (Settlement 
 valid agt. Purchaser), (strong case), 
 Sid. 133, 1 Keb 486; Clarke v. Willott, 
 (same), L. R. 7 Ex. 313. But Ki>kv. 
 Clarke, (Pre. Ch. 275), depended on a 
 representation by the disponor to the 
 party who gave value; and in Meggison 
 v. Foster, (Settlement valid agt. Cred- 
 itors), 2 Y & C, Ch. 336, the original 
 disponor concurred in the second 
 disposition. 
 
 Contra, suggested, 3 Atk. 378. 
 
 (b) As in E. I. C. v. C. ; P. v. L. 
 
 (c) See Hunt 121, where authorities 
 are cited in which a lien was allowed 
 on the setting aside of a disposition for 
 fraud agt. one of the parties to it. 
 
 (d) Newport's case, (Mortgage valid- 
 ated by transfer for value agt. a Pur- 
 chaser), Skin. 423, Said as to Pur- 
 chasers, Sid. 134, and see authorities 
 there referred to, and 4 D. G. J. 453, 
 454; Doe v. Martyr, (Settlement 
 validated agt. a Purchaser). 1 N. R. 
 332; Morewood v. Sth. Yorkshire H. Co., 
 (Mortgage validated agt. Creditors.) 3 
 H. & N. 798; George v. Mitbanke, 
 (same), 9 Vez. 190; Meggison v. Fos- 
 
 ter, (Bond validated agt. Creditors), 2 
 Y & C, Ch. 336. See also Payne v. 
 Mortimer, 4 D. G. J. 447. 
 
 (e) East India Co. v. Clavell, (as to 
 the £2000 bond), Gilb. Eq. 37. 
 
 (f) Stated ante, p. 544 (e-j). 
 
 (g) The cases cited in support of 
 this exception are also referrible to 
 other grounds, as to which see espec- 
 ially Price v. Jenkins, L. R. 4 C. D. 
 483, and some of them were expressly 
 decided on those other grounds. In 
 support of the principle in the text see 
 Dee v. Lewis, (last point), (Settlement 
 valid agt. Purchaser), 11 C. B 1035; 
 and on the other side Sug. V. P. 717. 
 
 (h) Clayton v. Wilton, (Settlement 
 valid agt Purchaser), 6 Mau. & S. 67 
 n; Jenkins v. Keymiss, (antenuptial 
 Settlement valid agt. Purchaser), 1 
 Lev. 150, 237, 1 Ch. Rep. 275; Jthell 
 v. Beane, (same agt. Creditors), 1 Vez. 
 215. 
 
 (i) Clarke v. Wright, (Antenuptial 
 Settlement valid agt. Purchaser), 6 H. 
 & N. 849; Newstead v. Searles, (same), 
 
 1 Atk. 265; Mullinsv. Guil/oyle, (same), 
 
 2 Ir. L. R. 95. 
 
 (j) Dart, 824 (A). 
 
 69
 
 546 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 
 
 Natural af- 
 fection. 
 In general. 
 
 In case of a 
 Policy. 
 
 Charitable 
 purpose. 
 
 Preference of 
 a particular 
 Creditor. 
 
 offspring (i), whether already born (a) or begotten (b), or 
 not (c); whether legitimate (d) by a former (e) or possible 
 subsequent (c) marriage, or illegitimate (/) ; and whether 
 children (g), or remoter descendants (h); at least if the 
 other limitations in the settlement were made for value (i), 
 (as, in consideration of an intended marriage (j) or other- 
 wise (k)); unless the circumstances (/) just referred to 
 concur. But an adopted child is not (m) within this excep- 
 tion. Nor does the rule apply against the interest of a 
 Wife or Child in a Policy of Insurance effected since 8 Aug. 
 1 880 (n), except to the extent of a lien for any payments 
 obnoxious to the rule (#). Nor does it apply against any 
 dealing made for a Charitable purpose (0), at least if the 
 charity was one which the legislature favoured ( p). Nor 
 does it. apply if the dealing was meant to provide for the 
 payment of the debtor's debts (q) or any of them (r) (11), 
 even though it would be void against bankruptcy-creditors 
 
 (I) In one (s) of these cases, which may also be referred to the ground that 
 the dealing there impugned had been made for value, a method by which co- 
 owners can evade the act is shewn. 
 
 (II) A creditor accepting such a security is presumed fas we shall see) to 
 
 (a) Clarke v. W.; J. v. B.; N. v. S. (k) As in Mullins v. Guilfoyle. 
 
 (b) Clayton v. W.; Clarke v. W.; N. (/) Ante, p. 544 (e-j). 
 
 v. S. (m) Smith v Cherrill, (Settlement 
 
 (c) /. v. K.; and see Wollaslon v. void agt. Creditors), L. R. 4 Eq. 396. 
 
 Tribe, (in which, however, the settle- 
 ment was set aside on the ground of 
 Surprise), L. R. 9 Eq. 44, and r. Greer, 
 11 I. R. Eq. 502. 
 
 (d) All the cases cited, except Clarke 
 
 T. W. 
 
 (e) Clayton v. W., J. v. B.; .V. v. 5. 
 (/) Clarke v. W.;M. v. G. 
 
 (g) Clayton v. W. ; Clarke v. W.; J. 
 V. B.;J. v. K.; iV. v. S. 
 
 (h) N. v. S. 
 
 (t) As to whether this is necessary, 
 compare Chapman v. Bradley, (Settle- 
 ment impugned by Creditors), 33 Bea. 
 65 / 14-19, with Price v. Jenkins, L. R. 
 4 C. D. 483, and with Currie v. Nind, 
 (Settlement void agt. Purchasers), 1 M. 
 & Cr. 17. 
 
 C. v. B., and P. v. J. were decided 
 on other grounds on appeal. 
 
 (j) As in Clayton v. W.; Clarke v. 
 W,;J. v. B.;J. v. K , N.y.S. 
 
 (n) 3-4 Vic, c. 93, s. 10 (as to Cred- 
 itors, not as to Purchasers). And see 
 ante, p. 60 ( j). 
 
 (o) Newcastle v. Att.-Gen., (Charita- 
 ble deed valid enough to entitle the 
 Charity to the proceeds of the sale of 
 the property), 1 2 CI. & F. 402, 415, and 
 remarks in Hunt 190 (q), and in Dart 
 (4th Ed.), 815-16. 
 
 (p) As in N.v.A.-G. 
 
 (g ) Bolderov. London Sfc. Co., (Trust- 
 deed valid agt. Creditors), L. R. 5 Ex. 
 D. 47: Janes v. Wliitbread, (same), 11 
 C. B. 406; Wolverhampton B. Co. v. 
 Marston, (same), 7 H. & N. 148. 
 
 (r) Middleton v. Pollock, (Mortgage 
 valid agt. Creditors), L. R. 2 C. D. 104; 
 Perkins v. Bradley, (Mortgage valid agt. 
 Forfeiture), 1 Hare 2)9, Chowne v. 
 Bay lis (same), 31 Bea 351. 
 
 (*) Mullinsv. Guilfoyle, 2 Ir. L. R. 95.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 547 
 
 as being a fraudulent preference, and was not communi- 
 cated to the preferred creditor (a), who was, moreover, 
 related to the debtor (b), and though, when it took place, 
 the debtor was insolvent to his own knowledge (c) and to 
 that of the preferred creditor (c), and though he continued 
 in possession until the commencement of proceedings to 
 displace it (d), — unless (in each case) it either contained a 
 clause so much more beneficial to the debtor than to the 
 creditor that the latter could not be expected to accede to 
 it (e), or was meant to be acted on or not according as the 
 debtor might direct (fj. 
 
 And the rule has been thought (i) not to apply against a 
 limitation followed by one which falls within one of the 
 exceptions (g), even though such preceding limitation fails 
 of effect before the qlaims for which preference is sought 
 accrue (h). And it has been held (i) that creditors are not 
 entitled to a Lien for sums which the debtor, under circum- 
 stances bringing such expenditure within the rule, has 
 expended on the subject of a disposition which he had pre- 
 viously made under circumstances bringing it within an 
 
 grant forbearance, which constitutes value (j) ; hut the case supposed in the 
 text is that of a mortgage made to him without his knowledge (k), or when the 
 debtor was awaiting his trial for felony (/), in which cases such a presumption 
 is inadmissible, and the transaction is therefore postponed to purchasers (m), 
 but yet not (n) to creditors. 
 
 (i) Lord St. Leonards thought (o) it did not apply when the former is ne- 
 cessary to prevent the latter being invalidated by some technical rule (p). 
 
 (a) B. v. L. ; M. v P. 
 (6) M. v. P , p. 105 /. 3. 
 
 (c) Af. v. P., p. 108 I. 27-8. 
 
 (d) Middleton v. Pollock, ( Mortgage 
 valid agt. creditors), L. R. 2 C. D. 104; 
 Perkins v. Bradley, (Mortgage valid agt. 
 Forfeiture), 1 Hare 219 ; Chowne v. Bay- 
 lis, (same), 31 Bea 351. 
 
 (e) Spencer v. Slater, (Trust-deed 
 void agt. Creditors), L. R. 4 Q. B. D. 
 13, as explained in L. R. 5 Ex. D. 52; 
 Owen v. Body, (same), 5 A. & E. 28, as 
 explained in 20 L. J. C. P. 220. 
 
 (/) Authorities cited in Dart (4th 
 Ed.), 813 (r). As to such deeds see 
 ante, p. 98 (c). 
 
 (g) 2 Wils. 358tn. U1-5;L. R.4C. 
 D. 489 ; r. Sheridan, Ir. R. 1 C. D. 54. 
 
 (A) r. S. < 
 
 (i) Campion v. Cotton, (Settlement 
 valid agt. Creditors), 17 Vez. 263a. 
 
 See also Burroughs v. , cited arg. 
 
 17 Vez. 267 (fin). 
 
 (j) Below, in this chapter, where I 
 consider the question what amounts 
 (for this purpose) to value. 
 
 (fc) As in B. v. L. <$-c. Co. ; J. v. W. ; 
 W. B. C. v. M ; M. v. P. 
 
 (0 As in P. v. B. and C. v. B. 
 
 (m) Below, Ch. LXIII. 
 
 (n) Authorities cited ante, p. 546 (q, 
 
 r). 
 
 (o) Sug. V. P. 716-18. 
 (p) Ante, p. 213 ((/) ; 254 (g, A, II); 
 255 (a) ; 266 (g). 
 
 Limitation 
 followed by a 
 valid limita- 
 tion. 
 
 Expenditure 
 on the subject 
 of a valid 
 dealing.
 
 548 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 
 
 Assent to the 
 dealing. 
 
 Principles 
 subordinate to 
 the rule. 
 Circumstances 
 evidentiary of 
 intention &c. 
 to embarrass 
 creditors. 
 Generally. 
 
 Presumptive. 
 
 Excess of the 
 debts above 
 the assets. 
 
 exception to the rule. Nor does the rule apply in favour of 
 one who assented to (a) or acquiesced in (b) the impugned 
 dealing; much less in favour of the disponor himself (c). 
 
 Such is the general rule introduced by this statute, and 
 such its qualifications, — but, in applying it, several 
 subordinate questions of difficulty arise. One of these is, 
 from what circumstances (d) an intention or tendency to 
 embarrass creditors &c. (i) is presumed, for, though the 
 question whether such intention exists is one of fact (c), and 
 the question whether such tendency exists is partly so, the 
 courts, to make titles more certain, infer one or other from 
 certain circumstances, unless rebutted or explained. And, 
 in drawing this inference, the question whether the dealing 
 was made for value seems immaterial, because, if the party 
 who gave value knew of the circumstances from which the 
 inference is drawn his position is the same as if he had 
 given no value, but if he was ignorant of them he is not 
 affected by the fraud. 
 
 And first: an intention to defeat present (f), or perhaps 
 subsequent (g), creditors, is inferred (h) from the Excess 
 of the debts above the value of the assets (n) at the time of 
 
 (i) These cases are, of course, only applicable when Creditors &c. seek pri- 
 ority, not when Purchasers do so. 
 
 (il) The burthen of proving that the debtor was solvent is often thrown on the 
 disponee («')• "Assets" means (j) "property applicable to pay debts." 
 
 (a) Steel v. Parry, (2d. point), (Mort- 
 gage valid agt. assenting Creditor), I 
 Tau.38l; Freeman \.Pope, (Settlement 
 same), L. R. 5 Ch. 542 I. 3; Olliver v. 
 Kmq, (Settlement same under corrob- 
 orative circumstances), 8 D. G. M. G. 
 110, esp. 117/. 21-2, 120-1. 
 
 (6) See O. v. K., p. 120. 
 
 (r) Ante, p. 542 (i-l); Croker v. Mar- 
 tin, 1 Bli. N. S. 573; Steele y. Parry; 
 Cornish v. Clarke, (impugned by Cred- 
 itors), 42 L. J. Ch. 17a /. 8; Pulverloft 
 v.Putvertoft, (impugned by Purchaser), 
 18 Vez. 84. 
 
 (<f) Some of these are enumerated in 
 L. R. 6 C. P. 111. 
 
 («) Nunn v. Wilsmore, 8 T. R. 521. 
 
 (f) Freeman v. Pope, L. R. 5 C. D. 
 238. 
 
 (g) Taylor v. Coenen, L. R. 1 C. D. 
 636; suggested also in Richardson v. 
 Smalluood, Jac. 556. But the contrary 
 is suggested in Jenkyn v. Vaughan, 3 
 Drew. 425, and in Lewin on Trusts, 
 (5th Ed), 63 (/), and the point is dis- 
 cussed in 12 Vez. 156, n. 5 (2). 
 
 (A) F. v. P.; T. v. C; which seem 
 to cover the cases on indebtedness with 
 POWER OF REVOCATION, name- 
 ly, Acraman v. Corbet, (2d. pt.), 1 J. 
 & H. 410, and Tarbuck v. Harbury, 2 
 Vern. 510: 
 
 (i) Mackayv. Douglas, L. R. 14 Eq. 
 119, and cases there cited; Crossley v. 
 Elworlhy, L. R. 12 Eq. 164. 
 
 (j) See, for definition, Williams on 
 Executors (6th Ed.), 1529.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 549 
 
 the dealing (a), even when the calculation is made on the 
 principle of reckoning amongst the debts those then not 
 yet payable (b) and damages already incurred (c) even 
 though not yet sued for (d), and by excluding from the 
 assets the interests parted with by the dealing {e) and 
 personal ornaments though retained (f) and all property not 
 yet immediately realizable (g) and the difference between 
 the value of terminable interests and what would be their 
 value if they were certain to terminate at the earliest 
 possible moment (h), and by leaving out of consideration 
 any possible increase in the value of the assets (i); and 
 though the value of the property parted with be compara- 
 tively small (j) ; and though all debts owing at the time of 
 the dealing have since been paid (k). 
 
 Again : this intention &c. is inferred from Large Indebt- 
 edness followed by Insolvency (/): and (alike as regards 
 present (m) and subsequent yi) creditors) from the fact that Contemplated 
 the debtor, at the time of the dealing, contemplated Jj^JjS?* 
 contracting fresh debts (o) ; or contemplated commencing 
 to trade (p) (especially if in a hazardous business ('<?)), while 
 the settlement comprised a great part of his property (r) : 
 and much more from the fact that he was even then 
 incurring heavy liabilities from which insolvency might 
 
 Large Indebt- 
 edness. 
 
 (a) SeeL. R. 5 Ch. 542 /. 31. 
 (6) T. v. C. 
 
 (c) As in Crossley v. Elworthy, L. R. 
 12 Eq. 158. 
 
 (d) Sd. in C. v. E., to be probably 
 law. 
 
 (e) Freeman v. Pope, L. R. 5 Ch. 538, 
 545. 
 
 (f) Smith v. Cherrill, L. R. 4 Eq. 390. 
 
 (g) Sd. F.v. P., p. 545 I. 7-11. 
 (A) F. v. P., p. 541 (J&O, 542-3. 
 (i) F. v. P., as to the Policy. 
 0) 7'. v. C, p. 641, /. 25-7. 
 
 (Jfc) Authorities ante, p. 54 1 (A). 
 
 (/) Townsend v. Westacott, 2 Bea. 343 
 /. 24-9. 
 
 (m) Mayou r. Edwards- Wood, (which, 
 however, probably extended also to the 
 
 subsequent creditors if any,) 4 D. G. J. 
 S. 664; and see Holmes v. Penney, 3 K. 
 & J. 102. 
 
 (n) Crossley v Elworthy, L. R. 12 Eq. 
 164-5; Mackay v. Douglas, L. R. 14 Eq. 
 106; r. Pearson, L. R. 3 C. D. 807 (for 
 the true reason of which decision see p. 
 809, /. 3-5); Spirett v. Willows, 3 D. Gr. 
 J. S. 293; Slileman v. Ashdown, 2 Atk. 
 481, commented on in L. R. 14 Eq. 
 121-2; Ware v. Gardner, L. R. 7 Eq. 
 319. 
 
 (o) S. v. A., p. 481, commented on 
 in L. R. 14 Eq. 121-2. 
 
 (p) M.v. D.-P. 
 
 (q) As in M, v. D. But, that this is 
 not essential, see p. 118-19. 
 
 (r) As in M. v. D.
 
 550 PRIORITY OP CREDITORS &C. OVER FRAUDULENT &C. 
 
 (Partner). 
 
 Limitation to 
 cease on 
 seizure by 
 Creditor. 
 
 Subsequent 
 dissipation 
 of debtor's 
 remaining 
 
 assets. 
 
 Continuance 
 in Possession. 
 
 result (a) : and from the fact that all his property, present 
 and future, was disposed of by the dealing, while yet he 
 reserved a right to continue to use his stock-in-trade (b): 
 and from the fact that the subject-matter was a Partnership- 
 share (c), and the dealing a disposition of it from one 
 partner to another in consideration merely of a covenant 
 to indemnify against partnership-debts (c), so as to with- 
 draw the property from the disponor's separate creditors. 
 
 And it seems that a similar inference will be drawn from 
 a provision in the dealing that it (or some limitation in it 
 (d)) shall only operate if a creditor of the disponor seize the 
 property, at least if the latter reserves to himself the 
 interest in that property until then (d) : and from the fact 
 that the debtor, immediately after the dealing, realized all 
 his other assets and spent the proceeds (e), especially if a 
 debt was then about to become payable (e). 
 
 Again : Continuance in Possession of property implies a 
 representation to the public (f) that no such disposition of 
 it has been made as is usually accompanied by a change of 
 possession; and consequently, an intention to defeat 
 creditors &c. by a disposition of a corporeal Chattel (g), or 
 (it seems) a corporeal Hereditament (h), is inferred from 
 continuance in possession of it after having made such a 
 disposition ; and this, (it has been (i) thought), though the 
 disposition be registrable and registered, (as in case of a 
 Ship) ; and especially if the disponor parted by it with all 
 his property (j), and made it secretly (j) while an action 
 by the creditor was pending (j) ; but this inference is not 
 
 (a) C. v. E., p. 164-5, as explained 
 in L. R. 14 Eq. 119 /. 23-31. 
 (6) W. v. G. 
 
 (c) Af. v. E.-W. 
 
 (d) Suggested, H.v.P., p. 102. Tbis 
 is decided as to PURCHASERS in 
 Pkipps v. Ennismore, 4 Russ. 131. 
 
 (e) S. v. W., interpreted L. R. 5 Ch. 
 543. 
 
 (/) See ante, p. 81,96-7. 
 
 (g) Twyne's Case, 3 Co. 80a ; Edwards 
 v. Harben, 2 T. R. 587. For rebuttal 
 of this presumption see Latimer v. Bat- 
 son, 4 B. & C. 652, Macdona v. Sidney, 
 8 Ir. C. L. 73. 
 
 (A) See the dicta in Stone v. Grub- 
 ham, 2 Buls. 226. 
 
 («) Boyd on Shipping, 55 (Jfc). 
 
 (j) As in Vs. Cos:
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 551 
 
 drawn if the transfer of possession was impossible (a) ; nor 
 if continuance in possession was accordant with the terms 
 of the dealing (b), as, when it was a Mortgage (c), or a 
 Settlement on the disponor for life and thenceforward on 
 others (d); and the delivery of possession to the disponee 
 (e), or the sale of the property and delivery to him of the 
 proceeds (f), disentitles creditors &c, whether becoming 
 such before such delivery (e) or payment (/) or not, to 
 this preference, unless, previously, proceedings for 
 obtaining it have been commenced (g), or the debtor has 
 died (h). And the indicia (discussed in ch. lxiii) of an 
 intention &c. to defraud purchasers are probably equally 
 indicative of an intention to defraud creditors: while the 
 Inadequacy of Consideration (i) affords some (j), — and, the 
 Excessive amount of property comprised in (k), or money 
 payable under (/), the dealing (being a Marriage-Settlement) 
 affords perhaps presumptive, — evidence of it. 
 
 But the retention of Title-deeds does not imply any 
 representation to creditors, because it is not apparent to 
 them : nor is an intention to defeat them inferred from the 
 fact that the dealing was a disposition on trust to apply so 
 much of the income as the trustess should think fit in 
 Maintaining &c. the debtor, and the rest for his wife and 
 children (m) : nor from the facts that the debtor owed some 
 debts when the dealing took place (»), and that his assets 
 are necessarily diminished by it (0). 
 
 (a) So said in Atkinson v. Mating, 2 
 T. R. 462, which was, however, the 
 case of a Mortgage. 
 
 (6) Alton v. Harrison, L. R. 4 Ch. 
 622; Cadogan v. Kennett, Cowp. 432; 
 ante, p. 543 /. 6-8, (h), 514 (A), 522 (l). 
 
 (c) A.v. H. 
 
 (d) C. v. K. 
 
 (e) Robinson v. McDonnell, 2 B. & A. 
 134, in which, however, one of the 
 judges founded his opinion on the doc- 
 trine stated ahove (6). 
 
 (f) Re Wihon, 29 L. T. N. S. 860. 
 {g) Sd. in effect, r. W ., p. 861b /. 
 
 7-11. 
 
 (A) Edwards v. Harben, 2 T. R. 387. 
 
 (i) Defined ante, p. 142. 
 
 (j) Hall v. Townsend, L. R. 14 C. D. 
 132; Jones v. Gordon, L. R. 2 Ap. 616; 
 Matthews v. Feaver, 1 Cox 278. 
 
 (i) So held, Bolland r. Clint, (settlor 
 solvent), L. R. 17 Eq. 119; contra, 
 Hardey v. Green, (settlor insolvent), 12 
 Bea. 182. 
 
 (/) Suggested, e. Mc.Burnie, 1 D. G. 
 M. G. 446-7. See Stack v. Royse, 12 
 Ir. Ch. 246. 
 
 (m) Holmes v. Penney, 3 K. & J. 99, 
 100 (fin), qualified ib. 101-2. 
 
 (n) Skarf v. Soulby, (1st point), 1 
 Man. & Gr. 364. 
 
 (o) Kent v. Riley, L. R. 14 Eq. 190. 
 
 Tendency to 
 defraud pur- 
 chasers. 
 Inadequacy of 
 Consideration. 
 Excessive 
 amount of the 
 subject of 
 settlement. 
 
 Not presum- 
 tive. 
 
 Retention of 
 Title-deeds. 
 Reservation of 
 Maintenance 
 depending on 
 trustees' dis- 
 cretion. 
 Slight indebt- 
 edness.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 552 
 
 Circumstances 
 evidentiary of 
 Complicity in 
 a design to 
 defraud Cred- 
 itors.. 
 
 Nature and 
 sufficiency of 
 Value in 
 questions re- 
 specting the 
 priority of 
 Creditors and 
 Purchasers 
 In General. 
 
 The question by what circumstances bad faith on the 
 part of the disponee is evidenced is also important. Corrv 
 plicity of an intended wife in a design by her intending 
 husband to defraud &c. his creditors by making a settlement 
 on her is inferred from the circumstance that up to the 
 marriage she has been his concubine. But the cases (a) 
 which were decided on this ground might have been rested 
 on the fact that the wife did not stipulate (b) for the 
 settlement. 
 
 The circumstances under which a dealing is held to be 
 for Value seem to be the same, whether the question be, — 
 is it to be postponed (because gratuitous and likely to defeat 
 them) to subsequent creditors, — is it to be postponed 
 (because gratuitous) to subsequent disponees for value, — 
 is it to be exempted (because accepted in good faith for 
 value and without notice of any fraudulent intention or 
 tendency (i)) from being postponed to either class, — or, is 
 it to be preferred (because made for value) to a previous 
 fraudulent or gratuitous disposition; except, that what 
 would not in general be regarded as value, may, never- 
 theless, be so considered when the question is whether the 
 disposition (especially a family settlement) is to be post- 
 poned because gratuitous; for, as a disponee, though he 
 give no value, is apt to alter his position (c) in reliance on 
 his increasing means, modern judges have regretted (d) 
 that dispositions are liable to be postponed merely because 
 gratuitous, and have (especially in favour of family settle- 
 ments (e)) endeavoured to evade this rule by what must be 
 
 (i) Even as regards Purchasers the answer to the third question does not 
 always depend on the answer to the second; for, sometimes, a gratuitous dispo- 
 sition is afterwards validated by value given for an interest derived under it (e). 
 
 (a) Columbine v. Penhall, 1 Sm. & G. 
 228 ; Bulmer v. Hunter, L. R. 8 Eq. 46. 
 (6) See below in this Chapter. 
 
 (c) Ante, p. 545 (o). 
 
 (d) Clarke v. Wright, 6 H. & N. 870, 
 
 /. 18-27; Bayspoole v. Collins, L. R. 6 
 Ch. 232 /. 26-30; Rosherv. Williams, L. 
 R. 20 Eq. 218 /. 4-7; and numerous 
 other cases. 
 
 (e)L. R. 20 Eq. 218, /. 24-34.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 553 
 
 admitted to be but ingenious quibbling. I therefore propose 
 to discuss these questions together, merely distinguishing 
 in the notes the cases applicable to each. 
 
 A dealing is held to be for Value (i), though the In Particular, 
 consideration be Inadequate (a); or be but Trivial (b), (as, 
 a small loan (b), or the burthen of Rent and Covenants 
 which necessarily attaches on the assignee of a Leasehold 
 even when he himself does not covenant (c), or a covenant 
 to indemnify a Husband against such Debts as his Wife 
 even while living apart on a separate income may contract 
 (d)) ; or be the Forbearance of a fresh (e) or antecedent (f) 
 -Debt, (a grant of which forbearance is, from the creditor's 
 acceptance of the security, presumed (g) until disproved 
 (h) ;) or be the Compromise of a doubtful claim (z), much 
 more the relinquishment of a well-founded one (j))\ or be 
 the giving up of an interest valid between the parties but 
 displaceable under the rule, (as, a bond given gratuitously 
 
 (i) In one case (k) sometimes cited on this subject, the decision was, not that 
 the disposition by J. T. was gratuitous (which it obviously was not), but, that 
 it was intended to defeat creditors. The marginal note is inaccurate. 
 
 (a) See Bullock v. Sadlier, Amb. 767, 104; Kevun v. Crawford, (as to the 
 
 /. 7. mortgage) (Mortgage valid agt. Cred- 
 
 (6) Bayspoole v. Collins, (Settlement itors), L. R. 6 C. D. 32. 
 valid agt. Purchaser), L. R. 6 Ch. 228 ; (g) Sd., r. Barker's estate, 44 L. J. 
 
 but in Thompson v. Webster, (Settle- Ch. 490a, /. 34-5; sd., Cracknall v. 
 
 ment valid agt. Creditors) 4 L. T. N. Janson, L. R. 11 C. D. 10, /. 15-17. 
 S. 750, the question was, whether, (h) As, in the cases cited below, 
 
 assuming the settlement to have been 555 (h). 
 
 gratuitous, it tended (or was intended) (i) Heap v. Tonge, (Compromise 
 
 to defeat &c creditors. valid agt. subsequent Purchaser), 9 
 
 (c) Price v. Jenkins, (Settlement Hare 90; Hill v. Bp. Exeter, (priority 
 valid agt. Purchaser), L. R. 5 C. D. conceded to a subsequent disposition 
 €19; Doble v. Doble, (Gift valid agt. made in consideration of a Compromise), 
 Bankruptcy-creditors), 26 W. R. 407; 2 Tau. 69; See also Williams v. Witt- 
 See r. Greer, 11 I. R. Eq. 502. iams, L. R. 2 Ch. 294. 
 
 (d) Worrall v. Jacob, (Separation- (j) Hobbs v Hull, (Settlement valid 
 deed void agt. Creditors), 3 Mer. 256. agt. Creditors), 1 Cox. Eq. 445; iVwnn 
 
 (e) Games r. Bamford, (Mortgage v. Wilsmore, (same,) 8 T. R. 521; 
 valid agt. Creditors), L. R. 12 C. D. qualified Fitter v. Fitzer, (Settlement 
 314, void agt. Creditor), 2 Atk. 511. 
 
 (f) Middleton v. Pollock, (Mortgage (k) Tarleton v. Liddell, (1st point), 17 
 Valid agt. Creditors), L. R. 2 C. D. Q. B. 390. 
 
 70
 
 554 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 
 
 and with tendency to defeat creditors (a)), unless such 
 interest has been displaced (b) ; or (perhaps) be Concurrence 
 in a void transaction if a person is thereby induced to 
 complete an arrangement with him who makes the dealing 
 in question (c) ; or (perhaps) concurrence in a disposition 
 which would not have been valid without such concurrence, 
 though the concurring party does not part with anything 
 (i); or be something not estimable in money, (as, a subse- 
 quent Marriage (d)); or be something continuous, (as, a 
 Rent (e), or Partnership (f)) ; or be something the details 
 of which are not determined on till after the dealing has 
 taken place (g); and though the only evidence that the 
 dealing was stipulated for consists in the probability arising 
 from its tenor and from some other documents'_signed about 
 the same time (h). And, of course, a disposition made in 
 pursuance of a binding agreement is as much for value as 
 
 (i) This was nearly so in a case (i) in which the husband parted only with 
 the life interest (commencing at the marriage) to which he was by law fj) 
 entitled, and received instead a life-interest to commence at his wife's death. 
 The court also expressed an opinion to this effect in another case (k), disap- 
 proving (/) of an earlier one (m), in which the contrary had been decided. 
 
 (a)Ex.Berry (valid agt. Bankruptcy- Moore v. Crofton, 3 J. & Lat. 438. 
 
 creditors), 19 Vez. 218; Ex. Hookins (f) Shaw v. Standish, 2 Vern. 326. 
 
 r. Gundry, (same), 3 D. G. S. 549. (g) Scott v. Bell, (Settlement valid agt. 
 
 (6) Tarleton v. Liddell, (5th point), Purchasers), 2 Lev. 70; Townend v. 
 
 (Settlement void agt. Purchasers, p. 614- Toker, (same), L. R. 1 Ch. 459, 460; 
 
 15, and Creditors, p. 621-3, because Stiles v. A tt-Gen., (Settlement valid agt. 
 
 made in consideration of a Limitation Creditors), 2 Atk. 152. 
 
 which was wholly displaced under the (h) Whilbread v. Smith, (Settlement 
 
 27 El. c. 4), 17 Q. B. 414, 415. valid agt. Purchasers), 3 D. G. M. G. 
 
 (c) Suggested, Harman v. Richards, 739. 
 
 (Settlement valid agt. Creditors), 10 (i) Teasdale v. Braithwaite, (Settle- 
 Hare 87 /. 20-p. 88 /. 2. ment valid agt. Purchasers), L. R, 5 C. 
 
 (d) Douglasse v. Waad, (Subsequent D. 530. But in Currie y. Nind, (Set- 
 Marriage a sufficient consideration to tlement valid agt. Purchaser), 1 M. & 
 enable the wife, as Purchaser, to dis- Cr 17, expld. L. R. 6 C. D. 93, the 
 place a previous gratuitous disposition) concurrence of the husband was not 
 1 Cha. Ca 99; Campion v. Cotton, (Set- necessary. 
 
 tlement valid agt. Creditors), (a strong (j) Ante, p. 54 (b, c), 44. 
 
 case), 17 Vez. 263a; Kevanv. Crawford, (k) Re Foster fy Lister, (Settlement 
 
 (same), L. R. 6 C. D. 29 ; Kirk v. Clark, valid agt. Purchaser), L. R. 6 C. D. 87. 
 
 (2d. pt), (Settlement valid agt. Pur- (/) P. 95. 
 
 chaser), Pre. Ch. 276, modified in ex. (m) Butterfield v. Heath, (Settlement 
 
 Hall, 1 V. & B. 112, and in Parker v. void agt. Purchaser), 15 Bea. 408, fol- 
 
 Serjeant, 2 Fin. R. 146. lowing Goodright v. Moses, (same), 2 
 
 (c) Goodright v. Moses, (2d. pt.), Bl. 1019, in which, however, there 
 
 (Leaseholder entitled to displace a pre- were other considerations, which the 
 
 vious gratuitous disposition) , 2 Bl. 1 1 9 ; court ignored.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 555 
 
 that agreement itself (a). But it is not sufficient that the 
 consideration (b) be a Void limitation (c), or one which has 
 been displaced (for example, under the rules respecting 
 priorities (d))'; or a Covenant by performance of which only 
 the covenantor could be benefited, (as, that he will build 
 himself a house (c)); or a covenant that the interest 
 acquired under the dealing may, in a specified event, be 
 diminished (f). And much less is it sufficient that the 
 dealing be made in discharge of a Moral obligation, as, 
 Gratitude for something done at the disponee's request (g); 
 or security for an Antecedent Debt under circumstances 
 rebutting the presumption that the creditor grants further 
 time (h) ; or Payment of a barred Debt (i) ; or compliance 
 with an understanding (/'), or Void contract (k), or 
 confirmable contract (/) unless confirmed (/); or reparation 
 of the consequences of a Fraud (h); or provision for a 
 Wife (*»), or children (n), or both (o) (i), or (perhaps) for a 
 Charity (p). 
 (i) In another case (9), in which the wife and mother were settlors, and in 
 
 (a) See authorities for this plain pt. /. 25-32; Warden v. Jones, (same), 2 D. 
 in Dart (4th Ed.), 813 («). G.J. 76, approved in Trowellv. Shenton, 
 
 (b) Defined, ante, p. 142. (Settlement void agt. Purchaser), L. R. 
 
 (c) See Hogarth v. Phillips, 4 Drew. 8 Ch. 324, in which it was held that 
 362 /. 14. the settlement was not meant as a ful- 
 
 (d) Ante, p. 554 (6). filment of the previous contract. 
 
 (e) Rosher v. Williams, (Deed of gift (/) Impliedly intimated in T. v. S. 
 void agt. Purchaser), L. R. 20 Eq. 210. On) Taylor v. Coenen, (Settlement 
 
 (f) Cowxv. Foster, (Separation-deed void agt. Creditors), L. R. 1 CD. 636; 
 void agt Purchaser), 1 J. & H. 30. and see Twyne's Case, 3 Co. 81 a,b;and 
 
 (<7) See Senhouse v. Earle, (at the authorities cited in Sug. V. P. 715 (b), 
 
 place where the £1360 is mentioned) and in Dart (4th Ed.), 813 (s); modi- 
 
 ( Settlement void agt. Purchaser) Amb. fied, ATunnv. Wilsmore, (Deed valid agt. 
 
 285; and seel Atk. 190 (med) (inwhich Creditors), 8 T. R. 521. 
 
 the question did not really arise). That (w) Cornish v. Clarke, (Settlement 
 
 this is, perhaps, sufficient to support a void agt. Creditors), 42 L. J. Ch. 14; 
 
 promise agt. the promissor, ante, p. 143 Stileman v. Ashdown, (same), 2 Atk. 
 
 (e). 477. 
 
 (/1) Re Barker, (Mortgage void agt. (0) Crossley v. Elworthy, (Settlement 
 
 Purchaser), 44 L. J. Ch. 487; Crack- void against Creditors), L. R. 12 Eq. 
 
 nail v. Janson, (same), L. R. 1 1 C. D. I. 158 ; Mackay v. Douglas, (same), L. R. 
 
 (i) Penhall v. Elwin, (2d. pt.), (Set- 14 Eq. 106; Evelyn v. Templar, (Settle- 
 
 tlement valid agt. Creditors), 1 Sm. & ment void against Purchaser), 2 B. C. 
 
 G. 258. C. 148; Pulvertojty. Pulvertoft, (same), 
 
 (j) Goldsmith v. Russell, (Settlement 18 Vez. 84. 
 
 void agt. Creditors), 5 D. G. M. G. (p) See ante, p. 546 (o). 
 
 555 (in). (g) Currie v. AW, (Settlement void 
 
 (k) Crossley v. Elworthy, (Settlement agt. Purchasers), 1 M. & Cr. 17. 
 void agt. Creditors), L. R. 12 Eq. 164
 
 556 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C, 
 
 Presumption of 
 stipulation for 
 Limitation to 
 Strangers or 
 Collaterals in 
 a Settlement. 
 Generally. 
 
 On Mutual 
 dealings. 
 
 But the most difficult question which arises on these 
 statutes (a), is, whether a party to a disposition &c. who 
 has rendered a consideration for it, stipulated for the whole 
 of that disposition, or merely stipulated for part while the 
 other party made the rest for his own purposes. Oral and 
 extrinsic evidence is admissible to prove that he stipulated 
 for the whole (b), or to prove circumstances from which 
 this may be inferred (c); provided that (d), in cases falling 
 under the rules (e) by which evidentiary formalities are 
 required, some exceptional circumstance (f), (such as, 
 render of part of the consideration,) has occurred, as it 
 almost always has in such cases except when marriage 
 (which is not (g) a sufficient substitute for evidentiary 
 formalities) forms the only consideration (h). And if the 
 courts were content, in the absence of such evidence, to 
 draw such inferences only as the facts fairly warrant, little 
 difficulty would arise. But an assumption that the whole of 
 every settlement of which any part has been stipulated for, 
 ought, (at least if it was made on marriage,) to be supported, 
 seems to underlie many of the decisions (i). 
 
 Mutual dealings which several persons make, each in 
 
 which therefore (j) the question of moral obligation did not arise, the decision 
 was a fortiori the same. Of course a disposition for value by which a wife or 
 child is provided for stands in as good a position as any other disposition for 
 value (fc). 
 
 (a) 13 El. c. 5 (E., Creditors); 27 
 El. c. 4 (E., Purchasers); 10 Cha. 1 
 sess. 2, c. 3 (Ir., Creditors and Pur- 
 chasers). 
 
 (b) Townend v. Toker, (Settlement 
 valid agt. Purchaser), L. R. 1 Ch. 459- 
 69. 
 
 (c) Whitbread v. Smith, (Settlement 
 impugned by Purchaser), 3 D. G. M. 
 G. 739. 
 
 (d) T. v. T. 
 
 (e) Ante, p. 178-184. 
 
 (f) Ante, p. 185-190. 
 
 (g) Ante, p. 189, p. 543 (p) qualified 
 
 ib.(v). 
 
 (A) As in Warden v. Jones, (Settle- 
 
 ment valid agt. Creditors), 2 D. G. J. 
 76. See ante, p. 543 ((o, p). 
 
 (i) Accordingly, sd., Roe v. Milton, 
 (Settlement valid agt. Purchaser), 2 
 Wils. 358, /. 50-1; Clarke v. Wright, 
 (same), 6 H. & N. 870, /. 18-35, 871- 
 5; and compare Price v. Jenkins, (Set- 
 tlement valid agt. Purchaser), L. R. 5 
 C. D. 619, with r. Greer, Ir. R. 11 Eq. 
 502. Qualified, Gale v. Gale, L. R. 6 
 C. D. 144. 
 And see ante, p. 552 (e), 553 (a). 
 
 (j) See Bennett v. Bennett, L. R. 10 
 C. D. 474. 
 
 (k) Authorities in Dart (4th Ed.), 
 813-14.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 557 
 
 favour of the other (a) (i), or of the mother (b) wife (c) child 
 (d) or descendant (e) of that other, are, — but those in favour 
 of his remoter relative (f), or friend (f), are not, — presumed to 
 have been stipulated for in consideration of one another; 
 even though both be in favour of the same objects, (as, 
 when a Husband and wife settle property on their children 
 (g), or on the wife for her separate use with restraint (/;)); 
 and though but one subject is affected by the concurrence 
 of both parties (*) (they having distinct interests (j), whether 
 joint (k) or successive (/), in it); and (it seems) though one 
 of the parties parts with nothing, but concurs merely to 
 consent to a son's marriage (w), or to validate the dealing 
 (») (as, a husband in his wife's disposition (o) unless 
 effectual without his concurrence (70) > an( ^ much more 
 though one of the parties parts with nothing but that 
 interest which the law gives him in the other party's 
 property (q), or with a part thereof (r). 
 
 (i) In one (s) of these cases the dealing was made partly in consideration of 
 an intended marriage, but the decision does not seem to have been influenced by 
 that circumstance. 
 
 (a) Atkinson v. Smith, (Settlement (6") W. v. G. especially p. 410. 
 
 valid agt. Purchasers), 3 D. G. J. 186; (c) A. v. S. 
 
 r. Foster 4- Lister, (same), L. R. 6 C. (d) A. v. S.; F. v. L.; H.y N.\ P. 
 
 D. 87; Hewison v. Negus, (same), 16 v. C. ; R. v. M. ■ V. v. V. 
 
 Bea. 594; Parker v. Carter, (same), 4 (e) O. v. S. 
 
 Hare 409-10; Osgood v. Strode, (Con- (f) This follows a fortiori from the 
 
 tract to settle valid as between the cases cited below as shewing that such 
 
 parties and enforcible by the person limitations are deemed gratuitous even 
 
 contracted for, who was grandson of in an ante-nuptial settlement, 
 
 the promissee and nephew of the prom- (g) A. v. S.; F. v. L. ■ U. v. N. ; P. 
 
 issor,) 2 P. W. 245; Roe v. Mitton, v. C; T. v. B. 
 
 (Settlement valid agt. Purchaser), 2 (h) T. v. B.; W. v. G. 
 
 Wils. 356; Teasdale v. Brailhicaite. (i) A . v. S. 
 
 (same), L. R. 5 C. D. 630; Vernon v.' (j) A. v. S.; H. v. N.; P. v. C. 
 
 Vernon, (contract to settle valid as (k) A. v. S.; P. v. C. 
 
 between the parties and enforcible by (/) H. y. N.; F.v.L.- P.y.C; R.v. 
 
 the person contracted for, who was son M.; T. v. B. ; W. v. G. 
 
 of one of the parties, and brother of (m) V. v. V. 
 
 the other), 1 B. P. C. 267; Wakefield (n) P. v. C. 
 
 v. Gibbon, (Settlement valid agt. Cred- (o) P. v. C. ; and see ante, p. 140 (/). 
 
 itors), 1 Giff. 401. (p) Currie v. Sind, ( Settlor void agt. 
 
 See also the remarks in While v. Purchaser), 1 M. & Cr. 17. 
 
 Sansome, 1 Atk. 412, as to the husband (7) F. v. L. As to a Husband's 
 
 providing for his wife out of her own life-interest in his wife's property, see 
 
 estate. ante, p. 44, 54 (6, c). 
 
 See also, on cognate points, ante, p. (r) H. v. N.; T. v. B. 
 
 142-166. (s) R. v. M.
 
 558 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 
 
 Limitation in 
 consideration 
 of Marriage 
 only. 
 
 And a Limitation which, on an intended Marriage, is 
 made in favour of (a) (or of the relatives of (b)) either spouse, 
 is presumed to have been stipulated for by that spouse, 
 even when those in whose favour it was made are related 
 also to the party making it (c); and hence, a limitation 
 which either spouse makes in favour of the issue of the 
 marriage is presumed to have been stipulated for by the 
 other spouse (d), and a limitation which any third person 
 (e) (such as the mother (f) or adoptive father (g) of one 
 spouse) makes in favour of the other spouse, or of the 
 expected issue, is presumed to have been stipulated for by 
 both spouses. These questions, indeed, rarely arise, for 
 there is generally evidence of the stipulation ; but the above 
 appears to be the state of the law. However Lord Camp- 
 bell has suggested (h) reasons for presuming that both 
 spouses have stipulated for every such (i) clause in their 
 settlement as is beneficial to either, or to the issue of either 
 (i), and other cases are sometimes cited as establishing 
 
 (i) The fact that the Courts, founding themselves on an enlarged experience 
 of the necessities of mankind, have so strained the law in favour of Marriage 
 Settlements, affords an answer to those who would abolish life-interests, and 
 who would thus enable parents to dissipate the fund which ought to be kept in- 
 vested to provide for a new generation and to prepare them for an advanced 
 stage of civilization. It is not one of the least objections to such a change that 
 it would aggravate one of the chief evils of the present stage of civilization, by 
 rendering more unequal than ever the distribution of wealth. 
 
 (a) This point is too elementary to son of promissee), 1 B. P. C. 267. 
 
 require a direct authority. The near- 
 est is Campion v. Cotton, (Settlement 
 valid agt. Creditors;, 17 Vez. 263a. 
 See Buhner v. Hunter, ( Settlement void 
 agt. Creditors), L. R. 8 Eq. 46, in which 
 the Court did not consider the settlement 
 gratuitous, although there was, proba- 
 bly, no stipulation for it. 
 
 (6) See Dart 817; Walfordv. Grey, 
 (Agreement to relrain from displacing 
 an estate, enforcible by child of prom- 
 issee), L. T. N. S. 437 ; Osgood v. Strode, 
 (contract to settle, enforcible by grand- 
 son), 2 P. W. 245 ; Gale v. Gale, (con- 
 tract to permit settlement, enforcible 
 by the children, through a former mar- 
 riage, of her who was deemed promis- 
 see,) L. R. 6 C. D. 144; Vernon v. Ver- 
 non, (contract to settle, enforcible by 
 
 (c) O. v. S. ; V. v. V. ; Wakefield v. 
 Gibbon, (Settlement on mother of prom- 
 issee valid against Creditors), 1 Giff. 
 esp. 410, /. 20; Walford v. G. 
 
 (d) Kevan v. Crawford, (Settlement 
 valid agt. Creditors), L. R. 6 C. D. 29. 
 
 (e) Bullerv.Waterhouse, (Settlement 
 valid agt. Purchaser), 3 Keb. 725 I. 22; 
 Nairn v. Prowse, (Settlement valid agt. 
 Creditors), 6 Vez. 752; sd. O' Gorman v. 
 Comyn, 2 S. & L. 147. 
 
 (/) B. v. W. 
 
 (9) *. v. P. 
 
 (A) Dilkes v. Broadmead, 2 D. G. J. 
 575-6; and see ante, p. 556 (i). 
 
 («) As to the necessity of this quali- 
 fication, Croker v. Martin, 1 Dow. N S. 
 15.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 559 
 
 that view, but these, on closer examination, appear to fall 
 short of it. In one of them (a), part performance was held 
 ^sufficient to support against creditors (though it is 
 sufficient (b) to support against the promissor) an oral 
 agreement for which writing would have been regularly (c) 
 necessary ; but a further question arose whether a person 
 who was not a party to the agreement, but who would have 
 been benefited by its performance, was entitled to enforce 
 it, and, as this question depended in some degree on 
 whether the part beneficial to him had been stipulated for, 
 an impression has prevailed that the case casts light on the 
 question when such stipulation is to be presumed ; but no 
 such question arose, for there was direct evidence that his 
 mother had stipulated for it. In another (d) of these cases, 
 a collateral relative, in whose favour the impugned limi- 
 tation was made, had himself given value. In another 
 (c), the plaintiff was held to be entitled to enforce a contract 
 which contained a stipulation beneficial to her, not because 
 it contained that stipulation, but because she was heir to 
 the promissee who had given value, and also because, 
 being the daughter of the promissee, she stood (according 
 to the doctrine which then prevailed (f) but which has 
 since (g) been overruled) in the position of one who has 
 given value; and, being entitled to enforce part of the 
 contract, she was entitled to enforce the rest (h) ; but the 
 court intimated (/) that the same decision would not have 
 been pronounced against a purchaser or creditor. The 
 remaining cases usually cited are explicable on another 
 principle also, and to that I have referred them (j). And, 
 
 (a) Finch (or Herbert) v. Winchelsea, (g) Jefferys v.Jefferys, Cr. & Ph. 138. 
 
 1 B. P. C. 145. As to Creditors, 147 See ante, p. 143 (d). 
 
 (6) Ante, p. 185. [(foot). (h) G. v. N.; Davenport v. Bishopp, 1 
 
 (c) Ante, p. 178 (/), 179 (<*,/). Ph. 698. 
 
 (d) Stephens v. Trueman. 1 Vez. 73. (i) Barham v. Clarendon, 10 Hare 
 
 (e) Goring v. Nash, 3 Atk. 186. 126; D. v. B., p. 705 /. 5-10; G. v. N., 
 
 (f) See Ellis v. S'immo, LI. & G. t. p. 188 (fin). 
 
 Sug. 333. U) Ant <> P- 545 fa)" 546 (*)•
 
 560 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 
 
 Separation- 
 deed. 
 
 Limitation 
 inserted by 
 Mistake. 
 
 on the other hand, there are authorities to shew that a 
 limitation in a settlement is held not to have been stipu- 
 lated for when that spouse in favour of whom or of whose 
 relatives it was made is the very person who made it (a) (i), 
 whether he made it in his own favour (b), or in that of his 
 child by a former marriage (c) (n), his brother (d), his 
 niece (e), or otherwise (f), unless it is beneficial to the other 
 spouse, as, when a wife makes it in her own favour (g) 
 (in) or in that of her previous children (h) and thus relieves 
 the husband from maintaining her or them. 
 
 The trustees of a Separation-deed, covenanting to 
 indemnify the husband against his wife's debts, are 
 presumed to have stipulated for the deed as the consider- 
 ation for such covenant (i). 
 
 But, of course, a limitation inserted by a Mistake in 
 
 (i) In one case (j), sometimes referred to on this subject, it was not the set- 
 tlor, but his father, who was presumed to have stipulated for the limitation to 
 the settlor's brother. 
 
 (u) This case, however, falls (£) under another, though doubtful, exception. 
 
 (in) In one (/) of the cases cited, a covenant had been broken after the death 
 of the covenantor, and the decision was that the covenantee's claim to levy the 
 damages off certain assets which had passed on the death to a woman, who, on her 
 marriage, had settled it on herself, was barred by that settlement, under a doc- 
 trine already (m) stated. But a limitation which a wife makes to whomsoever 
 she may appoint, and, in default of appointment, to her next of kin, does not 
 relieve the husband from any burthen, and there is, therefore, no presumption 
 that he has stipulated for it («). 
 
 (a) See Bar ham v. Clarendon, 10 Hare 
 131 I. 15-24; Cotterellv. Homer, (Set- 
 tlement void agt. Purchaser), 13 Sim. 
 506; Johnson v. Legard, (Settlement 
 void agt. Pin-chasers), 6 Mau. & S. 60, 
 T. & R. 281; Price v. Jenkins, (after- 
 wards affirmed on another point) 
 (Settlement void agt. Purchaser), L. R. 
 4 C. D. 483; Smith v. Cherrill, (Settle- 
 ment void agt. Creditors), L. R. 4 Eq. 
 390; Sutton v. Chetwynd, (Enforcement 
 of contract refused), Sug. H. L. 153. 
 
 Contra suggested, Kekewich v. Man- 
 ning, 1 D. G. M. G. 203; and see 2 P. 
 W. 175. 
 
 (6) Sd. B. v. C. 
 
 (c) P. v. /. 
 
 (d) C. v. H.;J.v.L. 
 
 (e) Smith v. C. 
 
 (f) Sutton v. C. 
 
 {g) Sd., Dilkes v. Broadmead, (2nd 
 point), 2 D. G. F. J. 566; a fortiori from 
 Teasdale v. Braithwaite, (post-nuptial 
 Settlement for her separate use with 
 restraint, valid agt. Purchaser), L. R. 
 5 C. D. 630. 
 
 (h) Clarke v. Wright, (Settlement 
 valid agt. Purchasers), 6 H. & N. 849. 
 
 (i) Stephens v. Ollive, 2 B. C. C. 90; 
 Worrall v. Jacob, (2d. point), 3 Mer. 
 256. 
 
 (j) Vernon v. Vernon, 1 B. P. C. 267. 
 
 (k) Ante, p. 545 {g)-5l6 (*). 
 
 (/) Dilkes v. Broadmead. 
 
 (m) Ante, p. 38 (c). 
 
 (n) Paul v. Paul, (Settlement void 
 agt. Creditors), L. R. 15 C. D. 580.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 5G1 
 
 conveyancing is not presumed to have been stipulated for (a). 
 
 Cognate with the rule stated at the commencement of 
 this chapter are the following rules and enactments by 
 which also creditors and others are entitled to certain 
 priorities. 
 
 A Husband is entitled (b), in respect of the interests 
 conferred upon him by law in his wife's property (c), to 
 priority over any disposition which she may have made 
 before the marriage; but only as regards the beneficial 
 interest (d); and not if as much remains as he might fairly 
 expect (e), unless she had represented that he would have 
 more (f) ; nor if he (g), or some man whose betrothed she 
 was when she made the disposition (k), consented to (i), 
 or knew of (j), it ; nor if it was made before the marriage 
 treaty, and either without contemplation of marriage (k) 
 or publicly for the benefit of her children (/) ; nor if he had 
 previously seduced her (m) ; nor after he had confirmed it (n). 
 
 A Solicitor entitled to a Lien under the rule already (0) 
 stated, is entitled to priority over all conveyances and acts 
 done to defeat (or that would operate to defeat) that lien (p), 
 notwithstanding some delay (q), and though an order had 
 previously been made for payment out of another fund (q), 
 and the client had changed his solicitor (q). But he is 
 not thus entitled against any disponee in good faith for 
 value and without notice (p). 
 
 Frauds upon 
 particular 
 Kinds of 
 Trausmittees. 
 
 On Marital 
 rights. 
 
 On Solicitor's 
 Lien. 
 
 (a) Doe v. Rolfe, (Settlement void 
 agt. Purchaser), 8 A. & E. 650. 
 
 (6) Goddard v. Snow, 1 Russ. 485, 
 and many cases cited in 1 M. & K. 
 621-2. But in all there were special 
 circumstances. See also dicta in 1 
 Hare 613-14. 
 
 (<•) Stated ante, p. 54-9. 
 
 (d) Doe v. Lewis, 11 C. B. 1035. 
 
 (e) De Mandeville v. Crompton, 1 V. 
 & B. 354, as explained in 1 Hare 613. 
 
 (f) See England v. Downes, 2 Bea. 
 528. 
 
 (q) Slocombe v. Gubb, 2 B. C. C. 545 ; 
 St. George v. Wake, 1 M. & K. 610. 
 
 (ft) Stralhmore v. Bowes, 1 W. T. L. 
 C. 406. 
 
 (i) S. v. G.; S. x.B. 
 
 (j) St. G.v. W. 
 
 (k) England v. Downes, 2 Bea. 528. 
 
 (/) King v. Cotton, 2 P. W. 674. 
 
 (m) Taylor v. Pugh, 1 Hare 608. 
 
 (n) Authorities in W. T. L. C. (4th 
 Ed), 421 («). 
 
 (o) Ante, p. 336 (/i). 
 
 (jb) 23-4 Vic, c. 127 (E.), s. 28; 39 
 -40 Vic, c. 44 (I), s. 3; see also The 
 Heinrich. L. R. 3 Ad. 510. 
 
 ( 9 ) Ex. Brooke, L. R. 7 CD. 318, 
 319. /. 12, (for value, 26 W. R. 164, 
 /. 2), 320, /. 5-6.
 
 562 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 
 
 On Landlord 
 by Execution- 
 Creditor. 
 
 On Ecclesiastic 
 claiming for 
 dilapidations. 
 
 On Surety. 
 
 On Creditors of 
 Tradesmen in 
 Ireland. 
 
 On Creditors 
 by Judgment 
 &c. 
 
 On Creditors of 
 Banker. 
 
 A Landlord is entitled to prevent the levying of an 
 Execution upon goods on the premises for which rent is 
 owing (a); unless either the tenancy has expired (b), or the 
 creditor pays him the amount due, or a sum equal to rent 
 for one year (a), or for four of the terms (if together less 
 than a year) by which the tenement is let (c). 
 
 An Ecclesiastical person, whose predecessor has disposed 
 gratuitously of his chattels with intent &c. to defraud the 
 successor of his right to damages for dilapidations, is 
 entitled to recover against the disponee, as if the latter 
 had been executor of his disponor (d). 
 
 A Surety satisfying the debt is entitled, in respect of his 
 claim to a transfer of the securities, to priority over a right 
 in the creditor to set off, against the produce of them, 
 another debt, of which the surety had no notice (e). 
 
 A Creditor of any shopkeeper or Tradesman in Ireland, 
 who has charged any of his chattels in his custody with 
 payment, after his death, of money to his Wife or Child- 
 ren, is entitled to priority over such charge (f), unless 
 the document by which it was imposed has been registered 
 in the registry of deeds within four months after the making 
 ofitf/J. 
 
 Creditors by Judgment, Statute, or Recognizance, are 
 entitled to priority over an unregistered disposition of a 
 tenement in Ireland (g), or in the North Riding of 
 Yorkshire (h). 
 
 The Creditors of a Banker are entitled (/) to priority 
 over any disposition of any interest in any tenement in 
 Ireland which such banker (or anyone under his authority) 
 may have made since ist August, 1760 (1), even for value; 
 
 (1) There are also provisions respecting dispositions before that date. 
 
 (a) 8 Ann c. 18, (Ruff, c 14), s. 1. 
 
 (b) Cox v. Leigh, L. R. 9 Q. B. 333. 
 
 (c) 7-8 Vic, c. 96, s. 67. 
 
 (d) 13 EL, c. 10, s. 3. 
 
 (e) Re Jeffery, 20 W. R. 857. 
 
 (f) 5 Geo. II, C. 4, s. 10. 
 
 (g) 6 Ann. (Ir.), c. 2, s. 5. 
 
 (/i)8 Geo. II, c. 6, s. 1. 
 
 («') 33 Geo. II, (Ir.), c. 14, s. 2, 3, 
 explained Copland v. Davits, L. R. 5 
 H. L. 358.
 
 PRIORITY OF CREDITORS &C. OVER FRAUDULENT &C. 563 
 
 unless (a) it either was a Lease of a prescribed kind, or 
 was registered in the registry of deeds within a prescribed 
 period. They are also entitled (b) to priority over any 
 disposition of any interest in any tenement in Ireland 
 which the banker may have made since ioth May, 1760, 
 to or for his Child or grand-child, even for value; even 
 though the creditors did not become such till afterwards. 
 And a Receipt which a Banker in Ireland who stops pay- 
 ment gives for a debt due when he stopped is void ; as is 
 also any disposition which such a Banker makes after 
 stoppage concealment or abscondment (c), unless made 
 for (c) or assented to by (c) creditors generally. 
 
 There are also enactments relative to the priorities of On Execution 
 Execution-creditors in Ireland (d), and to that of Seques- Se^estraTt 
 trators there (e). in Ireland. 
 
 (a) 33 Geo. II, (Ir.), 0. 14, s. 2, (c) s. 6. 
 
 3, explained Copland v. Davies, L. K. (d) 27-8 Vic, c. 99, s. 24. 
 
 5 H. L. 358. («) 16-17 Vic, c. 113, s. 136. 
 
 (6) s. 3.
 
 ( 564 ) 
 
 Introductory. 
 
 Canons. 
 First Canon: 
 Bankruptcy- 
 &c. creditors 
 displace deal- 
 ings unfairly 
 prejudicial to 
 them. 
 
 CHAPTER LXII. 
 
 PRIORITY OF BANKRUPTCY- LIQUIDATION- AND WINDING-UP- 
 -CREDITORS (i). 
 
 The second doctrine deducible (a) from the above prin- 
 ciple (b) is founded on (c), and has been largely formulated 
 by (d), statute-law; and is, that Bankruptcy- (e) and 
 Liquidation- (f) -creditors are often, and Winding-up- (g) 
 -creditors are sometimes, entitled to priority over certain 
 transactions as tending to prevent the due distribution of' 
 assets (h); and this priority they obtain under two parallel 
 canons, each of which is subject to exceptions peculiar to 
 itself and to other exceptions common to them both ; and 
 under numerous subordinate rules, each of which is liable to 
 exceptions peculiar to itself and to most of the exceptions 
 incident to the canons from which it is derived. 
 
 The first canon is, that Bankruptcy- (e) Liquidation- (f) 
 and Winding-up- (g), but not Composition- (z), -creditors, 
 are entitled to priority over any dealing unfairly prejudicial to 
 them (*'), and over any right arising under such a dealing 
 
 (i) This chapter is mainly confined to the law applicahle to bankruptcies 
 since the recent statutes; that is, in England, since 1869; in Ireland, since 
 1872. 
 
 (<i) Ante, p. 538. 
 
 (b) Ante, p. 537. 
 
 (c) See the words "any principle or 
 rule of law" &c, in the 32-3 Vic, c. 
 83, s. 20, and in the 35-6 Vic, c. 58, 
 s. 5. 
 
 (d) As to England, 32-3 Vic, c. 71, 
 herein-after cited as"E." As to Ire- 
 land, 20-1 Vic, c 60, herein-after 
 cited as "I.", and 35-6 Vic, c. 58, 
 herein-after cited as " I. amt." 
 
 (c) See below, where the different 
 sections are referred to. And see, for 
 a discussion on the subject generally, 
 r. Wood, L. R. 7 Ch. 306-8. 
 
 (f) E., s. 125 (7), by which Liquid- 
 ation-creditors are put into the same 
 situation which Bankruptcy-creditors 
 occupy with respect to the property of 
 the Bankrupt himself. The Irish stat- 
 utes do not seem to contain any similar 
 provision with respect to Arranging 
 traders. 
 
 (<7) 25-6 Vic, c. 89, s. 153, 163, 
 164; and see below. 
 
 (h) Defined, ante, p. 548 (j). 
 
 (?) See r. Kearley Sf Clayton's contract, 
 L. R. 7 C. D. 615; Burrell r. Robinson, 
 L. R. 1 C. D. 537 ; modified in r. Lewis, 
 L. R. 3 C. D. 113, and in r. Balbirnit, 
 L. R. 3 C. D. 488.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 565 
 
 (a) ; even though the dealing be a disentailment (b) (i), or the 
 right a right to consolidate mortgages (c) under the rule 
 already (d) stated ; and though its effect be merely to delay, 
 not defeat, them (e). But they are thus entitled only if, 
 under the circumstances, one of the subordinate rules be 
 applicable; and (in all cases) subject to a right in the party 
 dealt with to prove for any sum which he may have paid 
 for, or advanced on the security of, the dealing (f), unless 
 he is, by conduct, disentitled to do so (g) ; and not if any 
 of the general exceptions occur; nor (perhaps), as regards 
 Ships, if the circumstances occurred which are mentioned 
 in the authority in the note (h). And, of course, they are 
 the only persons in whose favour a dealing or right is in- 
 validated by this doctrine (i); and are precluded by the 
 same circumstances as the debtor would be from setting a 
 transaction aside on the mere ground that it was not 
 originally binding on him (j). 
 
 The second canon (k) is, that Bankruptcy- Liqui- 
 dation- and Winding-up- -creditors are entitled to priority 
 over any transaction taking place since, (though under 
 an authority conferred before (/)), the occurrence on 
 which insolvency is presumed to have become complete. 
 But the circumstances under which bankruptcy- and liqui- 
 dation- -creditors are thus entitled differ from those under 
 which winding-up-creditors are so. 
 
 Bankruptcy- and Liquidation- -creditors overreach 
 
 (i) As to the effect of a displaced disentailment on the estate-tail and on the 
 estates lying behind it, see ante, p. 540 (i). 
 
 Second Canon : 
 Bankruptcy 
 &c. creditors 
 over-reach, by 
 relation, all 
 transactions 
 subsequent to 
 some specified 
 occurrence. 
 Statement of 
 the canon. 
 Generally. 
 
 As applicable 
 to Bankruptcy- 
 and Liquida- 
 tion- -creditors. 
 
 (a) Hodgkin r. Soflley, (last point), L. 
 R. 2 Eq. 757. 
 
 (b) 3-4 Wm. IV, c. 74 (E.), s. 63; 
 4-5 Wm. IV., c. 92 (I.), s. 56. 
 
 (c) Hodgkin r. Softley, (last point) , L. 
 R. 2 Eq. 757. 
 
 (d) Ante, p. 336-9. 
 
 (e) Smith v. Cannan, (3d. point), 2 
 E. & B. 35. 
 
 (f) Jones v. Gordon, L. R. 2 Ap. 
 616; Stokoe v. Cowan, 7 Jur. N. S. 901. 
 
 (g) Hall r. Townsend, L. R. 14 C. 
 
 D. 132. 
 
 (h) 17-8 Vic, c. 104, s. 72; ante, p. 
 526 (f). 
 
 (»') Carr v. Acraman, 11 Ex. 566. 
 
 (j) Butt r. Mapleback, 35 L. T. N. 
 S. 503. 
 
 (k) For the history and policy of this 
 doctrine see Nunes v. Carter, L. R. 1 
 P. C. 348, /. 16 -p. 349 Hi. 
 
 (/) Conceded, Snowball r. Douglas, L. 
 R. 7 Ch. 548 /. 13-15.
 
 566 PRIORITY OF BANKRTCY- AND WINDG-UP -CREDITS. 
 
 every transaction which (a), or part of which (b), constituted 
 (c), or took place at or after the completion of (a), the 
 act of bankruptcy (d) on which the adjudication is founded 
 (a), or (in England (e) but not in Ireland (f)) the earliest 
 unpurged (g) act of bankruptcy committed within the year 
 preceding the adjudication (e) (i); and this, though the 
 transaction was a settlement on Marriage (h); or (on an 
 English bankruptcy) was a Sequestration (i) issued at the 
 suit of a creditor (j) for a debt proveable in that bank- 
 ruptcy (k) : but only if debts, owing when the transaction 
 occurred and sufficient to support a bankruptcy-petition, 
 subsisted until the adjudication (b); and not against the 
 Crown (I) ; nor against a sale of the debtor's goods under 
 an execution or attachment (m), (though he was a trader 
 (m), in which case, however, they have, under circumstances 
 (n), a claim upon the proceeds) ; nor against a payment under 
 a debtor-summons (o), unless a Receiver has been appointed 
 (p); nor (it seems) against any transaction merely because it 
 
 (i) This canon was confined under previous statutes (g) to cases in which a 
 creditor, not the debtor, had presented the petition. As to its effect in over- 
 reaching rights conferred by a precedent contract, see the case in the note (r). 
 
 (a) Authorities in n. (c). And see (i) E., s. 88, and see, as to Liquida- 
 
 Kiggil v. Player, 1 Salk. 111. tions, E., s. 125 (5), in which the word 
 
 (6) Snowball r. Douglas, L. R. 7 Ch. " Proceedings " probably includes Se- 
 
 547. questrations. 
 
 (c) See esp. L. R. 9 Ch. 436 /. 27. 0') Sd. in Chick r. Meredith, L. R. 1 1 
 
 (d) Expld. a little further on. C. D. 740, in which it was decided that 
 
 (e) E. s. 11. See, as to Liquidation, the section does not apply against a 
 E. s. 125 (5), interpreted in Duignan r. trustee in another bankruptcy. 
 Bissell, L. R. 6 Ch. 605, and in Furher (k) Sd., C. r. M., p. 740, two last 
 r. Pellew, L. R. 6 C. D. 189 J. 26-9, lines. 
 
 and, impliedly, in Postmaster-gen. r. (/) Postmaster-gen. r. Bonham, L. R. 
 
 Bonham, L. R. 10 C. D. 595. And see 10 C. D. 595. [433. 
 
 ante, p. 521 (i). (m) Villars r. Rogers, L. R. 9 C. D. 
 
 (f) Mc.Culloch v. Mc.Culloch, L. R. (n) Stated below. 
 
 14 C. D. 716. On examining the sta- (o) Bouchard r. Moojen, L. R. 12 C. 
 
 tutes this appears to be true univer- D. 26. 
 
 sally. (p) Jay r. Powis, L. R. 9 Ch. 133. 
 
 (g) Greener r. Vane, 46 L. J. Ba. 78a, (g) As to 12-13 Vic, c. 106; Marks 
 qualified in Furher v. Pellew, (2d. point), v. Feldman, L. R. 5 Q. B. 275, Jones v. 
 L. R. 6 C. D. 181, which seems to be Harber, L. R. 6 Q. B. 77. As to 7-8 
 itself overruled in Wier r. Wier, L. R. Vie., c. 96, Stevenson v. Newnham, 13 C. 
 6 Ch. 880, and in Bouchard r. Moojen, B. 303-4. 
 
 L. R. 12 C. D. 28-9. [659. (r) Rouch v. Great Western R. Co., 1 
 
 (A) Prater v. Thompson, 4 D. G. J. Q. B. 51.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 567 
 
 occurred after non-payment of the sum demanded in such 
 a summons (a); nor if one of the general exceptions (b) 
 intervenes. 
 
 Winding-up creditors are entitled to overreach (i) any 
 disposition of the Company's property (c), payment of its 
 money (d), or attempt (by Attachment Sequestration or 
 Execution against its' estate or effects', (e), arrest of its 
 Ships (/), or Distress upon its land (g)), to recover from it 
 a debt proveable in the winding-up (h) ; if such disposition 
 payment or attempt was (in the case of a winding-up under 
 the court) made since the presentation of the petition (i), 
 or of the earliest petition (j) (unless dismissed (k) ) if more 
 than one, — or was (in the case of a voluntary winding-up 
 continued under supervision (/)) made since the passing 
 of the confirmatory (/) resolution (m), — on which the winding- 
 up in question (n) or one which has been superseded by it 
 (o) was founded. But this only holds when the winding-up 
 in question is under, or under the supervision of, the court 
 (p); and does not hold against a disposition which the court 
 authorized (q) or confirms (r), (and it generally confirms a 
 disposition made for value in good faith (r)) ; nor against an 
 
 As applicable 
 to Winding- 
 up-creditors. 
 
 (i) The enactment is, that the disposition or attempt shall be "void to all 
 intents," but probably this only means " void against winding-up creditors." 
 
 (a) See quotation from ex. Wier, in 
 B. r. M., L. R. 12 C. D. 28-9. 
 (6) Stated a little further on. 
 
 (c) 25-6 Vic, c. 89, s. 153. 
 
 (d) See ex. Greenwood, L. R. 9 Ch. 
 511. 
 
 (e) 25-6 Vic, c. 89, s. 163. 
 
 (f) Re Australia $c. Co., L. R. 20 Eq. 
 325. 
 
 (o) s. 163, intrepreted in ex. Heaven, 
 L. R. 6 Ch. 462, and in r. Trader's North 
 S. Co., L. R. 19 Eq. 60. 
 
 (/«) Regents' U. S. S., L. R. 8 C. D. 
 616. 
 
 (i) 25-6 Vic, c. 89, s. 163, interpre- 
 ted by s. 84, qualified 35-6 Vic, c. 41, 
 s. 4. 
 
 (j) Kent v. Freehold 4'C Co., L. R. 3 
 
 Ch. 494 /. 17. 
 
 (fc) Lindley (4th Ed.), 1269, par. 1. 
 
 (/) Weston's Case, L. R. 4 Ch. 20; 
 Dame's Case, L. R. 6 Eq. 232. 
 
 (m) 25-6 Vic, c. 89, s. 163, interpre- 
 ted by s. 130. 
 
 (n) s. 163, interpreted by s. 84 and 
 130. 
 
 (o) Thomas v. Patent L. Co., L. R. 
 17 C. D. 250. 
 
 (>) 25-6 Vic, C 89, s. 153, 163; 
 qualified, as to voluntary windings-up 
 by s. 153 (I fin.) (5). 
 
 (q ) s. 153. See Railway Steel Co. r. 
 Taylor, L. R. 8 C. D. 183, and Emmer- 
 son's Case, L. R. 2 Eq. 231. 
 
 (r) Re Wiltshire Iron Co., L. R. 3 
 Ch. 443.
 
 5G8 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 attachment which it authorized (a); nor against a dispo- 
 sition made after the winding-up order (b), to which dispo- 
 sition, however, other provisions apply (c). The court is 
 also authorized to restrain the further progress of any 
 proceeding commenced before the winding-up (d). 
 Subordinate The Acts of Bankruptcy referred to in the canons 
 
 Actfof Bank- cons i st ( e ) exclusively (/) in: (i), A disposition on trust 
 ruptcy speci- f r the debtor's creditor's generally (g): (2) A "Fraudulent 
 conveyance gift delivery or transfer of his property or any 
 part thereof" (h) made under such circumstances (i) that it 
 might be overreached under the rules hereinafter stated : 
 and, under this head are included, a dealing with his 
 property intended (or certain if enforced) to embar- 
 rass his bankruptcy-creditors (j); a disposition of all 
 (or, under circumstances, nearly all,) his property (j); a 
 dealing intended or tending, under the circumstances 
 already (k) explained, to embarrass any creditor (j), and, 
 (perhaps,) a fraudulent preference made with the expect- 
 ation that bankruptcy must necessarily result (/) ; but not 
 a dealing in fraud of purchasers (m), nor a fraudulent 
 preference made without the expectation of necessary 
 bankruptcy (it): (3.) Departure or continuance out of 
 England [Ireland] with intent to defeat or delay his 
 creditors : (4), (when a trader) Departure from his dwell- 
 
 (o) s. 87, as interpreted r.Exhall Mg. 14-19. Accordingly Baxter v. Pritch- 
 
 Co., 10 Jur. N. S. 576. ard, 1 A. & E. 456; Bell v. Simpson, 
 
 (b) s. 153. 2 H. & N. 410; Pennell v. Reynolds, 11 
 
 (c) Lindley 1271 /. 3-5. But in the C. B. N. S. 709; Cook v. Caldecotl, M. 
 statute this seems to be left to impli- & M. 522. 
 
 cation. (j) Goodricke v. Taylor, 2 D. G. J. S. 
 
 (d) s. 85, 87, 163, 201 ; and see espe- 139 (fin.). See below in this chapter, 
 cially Parry v. Great S. Co. Ld., 33 L. (k) Ante, p. 539-61. 
 
 J. Ch. 245. (/) Sd., Wensley r. Wensley, 1 D. G. 
 
 (e) E., s. 6; I. amt., s. 21. J. S.281 /. 18-22, which seems scarcely 
 
 (f) Said, 1 Bl. 442; 3 Camp. 350; 15 consistent with the authorities in note 
 Vez 462; 17 Vez. 198. (n) in this page. [9-12. 
 
 (g) E., s. 6 (1); I. amt, s. 21 (1). (m) Sd., r. Wood, L. R. 7 Ch. 307 A 
 (h) Id. (2), interpreted r. Wood, L. (w) Sd., Stubbinsv. Wilkinson, L. R. 
 
 R. 7 Ch. 306 /. 26-30. And see Allen 17 C. D. 68 /. 30; and see Alderson v. 
 
 v. Bonnett, L. R. 5 Ch. 579-80, 581 /. Temple, 4 Burr. 2239 /. 38-42, Steven- 
 
 15-21. son v. Newnham, 13 C. B. 303, and 
 
 (i) Re Colemere, L. R. 1 Ch. 134 /. Marks v. Feldman, L. R. 5 Q. B. 275.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 5G9 
 
 ing-house, or other absenting of himself, with that intent : 
 (5), Denial of himself to (a), or omission to open his place 
 of business to (b), any creditor, (technically called " Begin- 
 ning to keep house ") with that intent (c) (1) : (6), Suffer- 
 ance of Outlawry with that intent : (7), Declaration, filed 
 in the prescribed manner, of inability to pay debts (d) : 
 (8), (when a trader) Sale (e) of his goods (including delivery 
 of them at an appraisement (f)) made under a levy for 
 a sum of at least (g) £50 [in Ireland ^"20] : (9), Omission, 
 under circumstances, to comply with a Debtor-summons : 
 (10), [In Ireland] Dismissal of a petition for Arrangement : 
 (n), [In Ireland] Imprisonment, Escape, or Declaration 
 of poverty, (each under circumstances). But, in every case, 
 further circumstances, the enumeration of which scarcely 
 falls within the province of this work, are necessary ; while 
 the two first of the above acts of bankruptcy require a more 
 detailed examination, which will be found in a subsequent 
 part of this chapter. 
 
 The claim (h) which Bankruptcy (/)- and Liquidation claim of 
 0>, but not Composition (k)- nor Winding-up- (/) (11) B "S rBptey '" 
 
 (I) The enactment is punctuated as if to imply that Beginning to keep house proceeds of 
 is an act of bankruptcy even when the debtor is not a trader. Execution. 
 
 (II) A levy against a Company undergoing winding-up is void (m) unless the 
 court otherwise direct (n). As to levies made before the winding-up-order, see 
 Lindley 1277. 
 
 (a) Lloyd v. Heathcote, 2 B. & B. (h) Referred to ante, p. 566 (n). 
 388; qualified in Smith v. Currie, 3 (*) E, s. 87; I. amt. s. 54; Liver- 
 Camp. 349; Fisher v. Boucher, 10 B. pool Loan Co. r. Bullen, L. R. 7 Ch. 
 & C. 705; and Wydown's case 14 Vez. 732. 
 
 86; but extended in Smith?. Moon, M. (j) Key r. Skinner,!,. R. 10 Eq. 432; 
 
 & M. 458; Dudley v. Vaughan, 9 Ea. qualified, James r. Condon, L. R. 9 
 
 49 1 ; Harvey v. Ramsbottom, 1 B. & C. Ch. 609. 
 
 55; Colkett v. Freeman,2 T. R. 59, and Accordingly, Hailing r. Haydon, L. 
 
 the cases there cited. R. 7 C. D. 157; Howes v. Young, L. 
 
 (6) Cumming v. Baily, 6 Bing. 365. R 5 Ex. D. 146; L. L. Co. r. B. 
 
 (c) Ex. White. 3 V. & B. 129. (Jb) Birmingham r. Adams, L. R. II 
 
 Id) See also G. 0. 252; Form 106. Eq. 204. 
 
 (e) As to whether this means exclu- (I) Re Wilhernsea Brickworks, L. R. 
 sively a sale by the sheriff or like 16 C D. 337; overruling Printing £rc. 
 official, see Pearson r. Mortimer, L. Co., L. R. 8 C. D. 183. 
 
 R. 8 Ch. 672, 674. (m) 25-6 Vic, c. 89, s. 163. 
 
 (f) Vale r. Bannister, L. R. 18 C. D. («) s. 87; Railway Steel $c. Co. r. 
 137. Taylor, L. R. 8 C. D. 183. 
 
 (g) See below, p. 570 («-g), 
 
 73
 
 570 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 -creditors have upon the net (a) proceeds of goods sold under 
 an Execution or Attachment is available (b) whether the 
 levy be the act of bankruptcy relied on (c) or not (d) ; and 
 whether the bankruptcy related back (under the second 
 canon (e)) to before the seizure (f), or merely to before the 
 sale (g), or neither (h) ; and though no sale has been made 
 (i); and though an order to which the bankruptcy &c. 
 creditors were not parties has been made in favour of the 
 execution-creditor (j); and though the bankruptcy- &c- 
 trustee is not appointed till after the lapse of the below- 
 mentioned 14 days (k); but only if the debtor was a Trader 
 (I), and the purchase money was receivable by the Sheriff 
 (in) (which excludes an elegit (;«)), and the sum levied for (n) 
 (including costs (0) and fees (p)) was at least £50 (q) [in 
 Ireland ^"20 (q)~\ ; and only if Notice that a bankruptcy- or 
 liquidation- -petition has been presented against [in Ire- 
 land by or against] the debtor be served on the sheriff or 
 corresponding county court official within 14 days (q) 
 (which seems to be reckoned from his receipt of the 
 purchase-money); and only if adjudication (r) follow (q) 
 either on that petition or on some other of which the sheriff 
 &c. has notice (s); and only subject to expenses (t). 
 
 (a) See ViUars r. Rogers,!,. R. 9 Ch. ed, Ravell v. Blake, (last point), L. R. 
 437, /. 10-12; I. amt, s. 54 (fin). 8 C. D. 533, For definition of "Tra- 
 
 (b) E., s. 87; I. amt., s. 54; Liver- der" see E., sch. 1, I., s. 90. 
 
 pool Loan Co. r. Bullen, L. R. 7 Ch. (m) Re Gourlay, 50 L. J. Ch. 80; 
 
 732. ex. Abbott, L. R. 15 C. D. 447; inter- 
 
 (c) L. L. C. r. B., (as to the Bank- preted in L. R. 18 C. D. 139 med. 
 rupt partners). (n) Reya r. Salinger, L. R. 6 C. D. 
 
 (</) L. L. C. r. B., (as to the 332; r. Hmks, L. R. 7 C. D. 882. 
 
 Liquidating partner); K. r. S.; H. r. (o) L. L. C. r. B. 
 
 H.; H. v. Y. (p) H. v. Y.; extended, Lithgow r. 
 
 (e) Ant2, p. 565 (k). Fenlon, L. R. 10 C. D. 169; Sims r. 
 
 (f) L. L. C. r. B., (as to the Bank- Grubb, L. R. 5 C. D. 375. [C. r. B. 
 rupt partners). (q) E., s. 87; I. amt., s. 54; L. L. 
 
 (g) H r. H. ; H. v. Y. (r) Explained, James r. Condon, L. 
 (h) L. L.C.r.B., (as to the Liquid- R. 9 Ch. 609. 
 
 ating partner); K. r. S. (s) As to what constitutes Notice, 
 
 (i) H. v. Y. see below in this Chapter. 
 
 (j)H.r.H. (t) E., s. 87; I. amt., s. 54; See 
 
 (k) K. r. S. also, authorities cited ante, this page (», 
 
 (/) E., s. 87, I. amt., s. 54; explain- p) ; and r. Craycraft, L, R. 8 C. D. 596.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 571 
 
 The exceptions common to the two canons are as 
 follow : — 
 
 First: The King is not affected, at least by the second 
 canon (a), his rights being the same as if the property did 
 not pass from the bankrupt until the moment of adjudi- 
 cation (b). 
 
 Secondly: Value, rendered or accruing for a transaction 
 by which something passes from the debtor, disentitles his 
 Bankruptcy- (c) (i) and Liquidation- (d) -creditors to 
 displace it under these canons: whether that which passes 
 be an interest in his property, while the transaction is a 
 dealing with (e) or levy (f) or sequestration (g) upon the 
 same (the value consisting in the latter cases of exoneration 
 from the debt satisfied by the levy &c.) ; or be a right to obtain 
 or withhold something, while the transaction is a payment 
 of money to (h) delivery of goods to (*') or contract or 
 dealing with (j) him, by which that right was extinguished. 
 Under the latter head are included, a Seizure (n) of 
 materials for the purpose of satisfying a charge upon them 
 (k), and a Withdrawal of consent to the continuance of 
 
 Exceptions to 
 the above- 
 Canons. 
 
 First: The 
 King disponee. 
 
 Second: Value 
 rendered for 
 the transaction. 
 In general. 
 
 (i) The wording of the Irish Act (c) is different from that of the English (c), 
 but its meaning seems to be, and is in the text assumed to be, the same. The 
 clauses which, in the earlier statutes, corresponded with that here under dis- 
 cussion, did not extend to support a dealing which was itself the act of bank- 
 ruptcy relied on (/), but this restriction seems precluded by the wording of the 
 enactments now in force. 
 
 (n) Qu. whether the title of the chargeant was not complete without 
 seizure (in). 
 
 (a) Postmaster-Gen. v. Bonham, L. R. 
 10 C. D. 595; Edwards v. Reg,, 9 Ex. 
 628; the reasoning in which cases 
 applies to the first canon also. See 
 also authorities in Yate Lee, 136 I. 11 
 -23. 
 
 (6) Reg. v. Mann, 2 Str. 749. 
 
 (c) E., s. 94, 95; I., s. 328; see also, 
 as to debts provable, E., s. 31. 
 
 (d) Implied E., s. 125 (5). 
 (e)E., s. 95(1). 
 
 (f) E. s. 95 (2, 3). 
 
 (g) E. s. 88. 
 
 (A)E., s. 94(1, 2). 
 
 (t) E., s. 94 (2) 
 
 (j) E., s. 94 (3). 
 
 (*) Re Waugh, L. R. 4 C. D. 524; 
 explained, L. R. 14 C. D. 26, /. 25-33. 
 
 (/) Hall v. Wallace, 7 M. & W. 
 353. 
 
 (m) See Brown v. Bateman, L. R. 2 
 C. P. 281, /. 15-19, and Holroyd v. 
 Marshall, 10 H. L. 191.
 
 572 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 goods in the Order and Disposition (a) of the debtor (b), 
 but not a Transmission (c), and therefore not an Execution 
 against the debtor's property (d), nor an attachment of a 
 sum owing to him (e) (i). And value has this operation 
 though the transaction was a dealing made through an agent 
 authorized before the Act of Bankruptcy (f) ; and though 
 the bankrupt had informed the party to whom the benefit 
 was to pass of his intention to commit the act of bank- 
 ruptcy (g), and had committed it (g), and left a notice of 
 the fact at the office of that party (g), who, however, did 
 not see the notice until the transaction was complete (g) ; 
 and though that party had been informed of the act of 
 bankruptcy before he exercised any of his rights under the 
 transaction (h). But it has this operation only if the 
 transaction occurred before the date of, — in England, 
 the adjudication (i), or the liquidation-trustee's appoint- 
 ment (j), — in Ireland, the bankruptcy-petition (i); and 
 only if it was attended by good faith (i) or consisted (in an 
 English bankruptcy) of payment or delivery of the debtor's 
 money or goods to him by a depositary of them (k) ; and 
 only if (when, in an English bankruptcy, it consisted in a 
 levy,) it was, at the above-mentioned date, complete by 
 
 (i) But it is not clear that such an attachment does not fall under the former 
 head (/)• 
 
 («) Explained ante, p. 530 (fc)-532 (fc). (A) Re Waugh, L. R. 4 C. D. 531 
 
 (*) Re Wright, L. R. 3 C. D. 70; -2. 
 
 Montague v. O'Brien, L. R. 1 C. D. 554, (i) E. s. 94 (5) ; I., s. 328; Rabbidge 
 
 qualified in Dorman r. Lake, L. R. 8 v. Pooley, (a strong decision), L. R. 8 
 
 Ch. 51, and in Brewin v. Short, (last C. D. 367; modified ante, p. 392 (6), 
 
 point), 5 E. & B. 227. especially in Burr's trusts, and Rus- 
 
 (c) L. R. 17 C. D. 664, /. 7. sell's trusts- and, as to Levies, Belcher 
 
 (d) Sulger r. Chinn, L. R. 17 C. D. v. Magnay, 12 M & W. 102; and, as 
 839. to the burthen of proof, Bagnall v. 
 
 (e) Fillers v. Curtoys, L. R. 17 C. D. Andrews, 7 Bing. 217. 
 
 653. (j) Venets r. Gwynn, L. R. 10 Eq. 
 
 (f) Snowball r. Douglas, L. R. 7 Ch. 419. 
 
 548, I. 17-18; see ante, 565 (/). (*) E., s. 94 (2). 
 
 {g) Re Wright, L. R. 3 C. D. 70. (/) Ante, p. 571 (/): below p. 573 
 
 See, as to notice of intention, p. 78 (c). 
 -9.
 
 PRIORITY OF DANKRTCY- AND WINDG-UP- -CREDITS. 573 
 
 seizure of a tenement of the bankrupt (a), seizure and sale 
 (i) of goods of his (b), or (perhaps) realization of an amount 
 owing to him (c), made under an execution or attachment, 
 (the necessity for sale or realization not being excused by 
 the fact that the nature of the process did not admit of it 
 (d) or that the creditor did his best (e) ) ; and only if it was 
 really meant to transfer a beneficial interest (/). And 
 value has not this operation if Notice (g) of an Act of 
 Bankruptcy (h) which the debtor committed (i) before the 
 transaction (/), and (if the transaction be a levy) before 
 the seizure (j), and which (in the case of an English bank- 
 ruptcy &c.) was available (k) unconditionally (I) (whether 
 or not immediately (m)) for that adjudication (i) which was 
 afterwards made (n), did, at the time when the transaction 
 took place (i), (that is, in case of a levy on goods, the time 
 of sale (o)), affect him to whom the benefit passed (i) or a 
 purchaser from him (p), unless, (in the case of an Irish 
 bankruptcy), the transaction was a purchase for value in 
 good faith from the bankrupt, and six months from the act 
 of bankruptcy had elapsed (or elapse) before the filing of 
 the bankruptcy-petition (q); nor (it seems) if the debtor 
 
 (i) This seems to include a sale which the execution-creditor, with the 
 sheriff's and debtor's consent, makes after seizure (r) ; and it includes delivery 
 under an elegit (s). 
 
 (a) E. s. 95 (2, 3). That "land" 16 Eq. 425: This is expressed in the 
 (the word in the statute) means "tene- Irish statute, s. 328. 
 
 ment" see 13-4 Vic, c. 21, s. 4. (*) E., s. 94, 95. 
 
 (b) E., s. 95 (2, 3); Veness r. Gwynn, (I) Hoare r. Walton, L. R. 16 Eq. 
 L. R. 10 Eq. 424. 625; expld. L. R. 10 C. D. 318. See 
 
 (c) Suggested, on the ground that also 7 C. D. 615. 
 
 this is a kind of sale, Fillers r. Curtoys, (m) Cooper r. Baum, L. R. 10 C. D. 
 
 L. R. 17 C. D. 665, /. 3-5, 666-7. 318, /. 7-9, as explained in /. 20-3. 
 
 (d) Sulger r. Chinn, L. R. 17 C. D. (n) Gilbey r. Bedell, L. R. 8 C. D. 
 839. 248; Crosbie r. Bedell, L. R. 7 C. D. 
 
 (e) See O'Brien r. Brodie, L. R. 1 Ex. 123. 
 
 302; Veness r. Gwynn, 39 L. J. Ba. 23. (o) Schulte r. Mantanle, L. R. 9 Ch. 
 
 (f) Pennellv. Reynolds, 11 C. B. N. 409, 413, I. 22-3. Vale r. Bannister, L. 
 S. 722, /. 14-17. R. 18 C. D. 137. 
 
 (g) See below in this ch. (p) Fawcett v. Fearne, 6 Q. B. 20. 
 (A) As to what are such Acts see (g) I., s. 332. 
 
 ante, p. 568 (e)-9 (/). (r) See, as to similar words in 
 
 (i) E., s. 94, 95; I., s. 328. another section, Pearson r. Mortimer, 
 
 (j) Schulte T. Mantante, (1st point), L. R. 8 Ch. 672, contra ib. 674. 
 
 L. R. 9 Ch. 409; Roche x. Hall, L. R. (*) V. r. B. 
 
 6 Ch. 795; Todhunter r. Norton, L. R.
 
 574 PRIORITY OF DANKRTCY- AND WINDG-UP -CREDITS. 
 
 In case of a 
 Ship. 
 
 Digression : 
 Notice of an 
 Act of Bank- 
 ruptcy. 
 What consti- 
 tutes it. 
 
 initiated the transaction (a); nor if the priority which the 
 creditors claim rests on the Bills of Sale Act (b), or on the 
 ground that the benefit was meant to pass only in the event 
 of bankruptcy (c); nor (of course) if the transaction be 
 invalid against the bankrupt himself (d). Nor do those 
 cases (e) of this exception in which an interest passes from 
 the bankrupt &c. apply (/) against the claim (g) which 
 bankruptcy-creditors have upon the proceeds of seizure 
 and sale of goods, or against their right to displace a so- 
 called "Voluntary Settlement" (/;), or a Fraudulent Prefer- 
 ence (h) (although, value does support a preference under 
 special circumstances which are stated where I treat of 
 fraudulent preferences) ; nor does that case (i) in which an 
 interest passes by means of a levy apply if a bankruptcy- 
 Receiver had been appointed before the seizure (/). 
 
 Value, given for the purchase of, or advanced on mort- 
 gage of, a British-Ship, or a share in one, precludes (k) 
 the Bankruptcy- and Insolvency- (including no doubt the 
 Liquidation-) -creditors of the vendor or mortgagor from 
 overreaching it, if made in good faith, by one acting under 
 a power conferred by a Certificate, in which the place or 
 places at which, and the limit of time within which, the 
 power may be exercised, are specified ; unless, either the 
 limit of time exceed twelve months, or notice of the bank- 
 ruptcy affect the purchaser or mortgagee. 
 
 Notice of an Act of Bankruptcy (/) consists in knowledge 
 (m) (which maybe inferred (?#)), or the means of knowledge 
 
 (a) Re Wright, L. R. 3 C. D. 77, /. 
 10-13. 
 
 (6) Altwater r. Turner, (3d. point), 
 L. R. 5 C. D. 27 ; Payne r. Cross, L. 
 R. 11 C. D. 552. See, for a discussion 
 of the Bills of Sale Act, ante, p. 512- 
 20. 
 
 (c) See below, 4th and 5th subordi- 
 nate rules. 
 
 (d) Ford v. Older, L. R. 3 Eq. 461. 
 
 (e) Ante, p. 571 (e-g). 
 
 (f) E., s. 95; I., amt., s. 55; and as 
 
 to Fraudulent preference, I., s. 328 
 (fin). 
 
 (g) Ante, p. 569 (g)-70 (*). 
 
 (h) Below, in this chapter. 
 
 (i) Ante, p. 571 (f). 
 
 (j) Salt v. Cooper, L. R. 16 C D. 557. 
 
 (fc) 17-8 Vic, c. 104, s. 81 (4), 80 
 
 (4). 
 
 (/) Specified ante, p. 568 (e)-9 (f). 
 
 (m) Spratt v. Hobhouse, 4 Bing. 181, 
 /. 6-12; Schulte v. Mautanli, L. R. 9 
 Ch. 413, /. 15-25; questioned x.Waugh, 
 L. R. 4 C. D. 531.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 575 
 
 (a), that some act of bankruptcy (though unspecified (b) ), 
 or that circumstances completely (c) amounting to an acft 
 of bankruptcy, or that circumstances which would if unre- 
 butted amount thereto (d) and which are not rebutted (e), 
 or that circumstances from which any reasonable person 
 would infer an act of bankruptcy (/), have occurred, or 
 that a bankruptcy-petition has been filed (g). But Adver- 
 tizement of a notification (even in the Gazette (/*)), despatch 
 of one by Post to the party sought to be affected (»), or 
 delivery of one at his office (j), are not notice, until he sees 
 it ; nor is information of an intention to commit an act of 
 bankruptcy sufficient (k). 
 
 Notice of an Act of Bankruptcy is imputed to a Disponce 
 from notice to his Manager (d), or to a Solicitor whom he 
 employed to negotiate the notified dealing (I) and not 
 merely to settle the deed for him while acting in other 
 respects for the bankrupt (*»); and it is imputed to an 
 Execution-creditor from notice to his Solicitor (»), or (it seems) 
 to his Co-plaintiff concurring in the execution (0), but not 
 from notice to his solicitor's Clerk (p) (unless perhaps 
 authorized to act on it (q)), or to the Sheriff's officer (r). 
 
 Thirdly: The carrying on of the debtor's business is 
 considered so essential that the fact of a dealing being 
 
 (a) Devas v. Venables, 3 Bing. N. R. 
 403, /. 23-8. 
 
 (b) Udal v. Walton, 14 M. & W. 
 254; Turner v. Hardcastle, (3d. point), 
 11 C. B. N. S. 683. 
 
 (c) Necessary, Evans v. Hallam, L. 
 R. 6 Q. B. 713. 
 
 (d) Lindon v. Sharp, (2d. question), 
 6 Man. & G. 906. 
 
 (e) Re Colemere, L. R. 1 Ch. 128. 
 (/) Snowball v. Douglas, L. R. 7 Ch. 
 
 548-9; Smith v. Osborn, 1 F. & F. 267. 
 
 (g) Lucas v. Dicker, L. R. 5 C. P. D. 
 150. 
 
 (h) Sowerby v. Brooks, 4 B. & A. 
 530; Hocking v. Acraman, 12 M. & 
 W. 170. 
 
 (i) Loader v. Hiscock, 1 F. & F. 132. 
 
 (j) Birdv. Bass, 6 Man. & G. 143; 
 Pike v. Stephens, 12 Q. B. 465. 
 
 (Jfc) Re Wright, L. R. 3 C. D. 78-9; 
 and see the addenda of this work, p. 
 448 (« x ). 
 
 (/) Conceded in the case next cited. 
 
 (m) Britain v. Brown, 24 L. T. N. 
 S. 504. 
 
 (n) Rothwell v. Timbrell, 1 Dowl. N. 
 S. 778; extended, Brewin v. Briscoe, 
 28 L. J. Q. B. 329. 
 
 (o) Edwards v. Cooper, 11 Q. B. 33. 
 
 (p) Pennellv. Stephens, 7 C B. 987; 
 Pfite v. Stephens, 12 Q. B. 465. 
 
 (q) Suggested in the cases cited in 
 
 («■ 
 
 (r) Schulle r. MantanU, (3d. point), 
 
 L. R. 9 Ch. 409; Ramsay v. Eaton, 10 
 M. & W. 22. 
 
 From whom 
 it is imputed. 
 
 Third: Car- 
 rying on of 
 the debtor's 
 business, the 
 purpose of the 
 dealing.
 
 576 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 made (a), or being the outcome of a previous dealing made 
 (b), for the purpose of doing this, disentitles the Bank- 
 ruptcy- (c) and Liquidation- (d), and (perhaps) Winding- 
 up-, -creditors, to displace it as a cessio bonorum (e), or (it 
 seems) as intended (or certain if enforced) to defeat &c. 
 bankruptcy-creditors (/); and, since this purpose seems 
 incompatible with the circumstances under which a dealing 
 can be displaced under any of the other rules about to be 
 stated, this exception may, I think, be more fittingly deemed 
 a general one, than ranged under the subordinate rules 
 upon which it operates. It applies whether the means 
 procured was money, (paid for the purchase (g), or lent (h) 
 or agreed to be lent (i) on the security, of the debtor's pro- 
 perty), or goods (/) (supplied (k) or agreed to be supplied (I) 
 on credit (7) for sale (k) or use (I) in his trade), or any other 
 means (m); and whether the transaction by which it was 
 procured was the impugned dealing itself (n), or a contract 
 pursuant to which (0), or previous invalid dealing in sub- 
 
 (a) Below, in this page (n). D. 682 ; Lomax v. Buxton, L. R. 6. C. 
 
 (6) See below, (o), p. 577 (a). P. 107; Threlfall v. Williamson, 35 L. 
 
 (c) Allen v. Bonnett, L. R. 5 Ch. 577; T. N. S. 675. 
 
 Anon. 9 W. R. 199; Bittleston v. Cook, (e) The dealing was so as inmost of 
 
 6 E. & B. 296 ; Ellis r. Ellis, L. R. 2 the cases cited, and seems to have been 
 
 C. D. 797; Harrison v. Cohen, 32 L. treated as such in all except M. v. F. 
 
 T. N. S. 717: Heath v. Cochrane, 46 See as to cessiones bonorum, below in 
 
 L. J. C. L. 737 ; Hutton v. Crutwell, 1 this chapter. 
 
 E. & B. 15; Kevan r. Mawson, 24 L. (f) Contrast M. v. F., p. 556-8, with 
 
 T. N. S. 395; King r. King, L. R. 2 the remarks in L. v. B., p. 112. 
 
 C. D. 256; r. Mapleback, L. R. 4 C. D. (g) R. v. H. 
 
 150; Mather v. Frazer, 2 K. & J. 556 (h) Most of the cases cited ante, in 
 
 -8 ; Mercer v. Peterson, L. R. 3 Ex. this page (a, 6). 
 
 104; Pennell v. Reynolds, 11 C. B. N. (i) B. v. ft, R. & S. r. T- M. v. 
 
 S. 709; Philps v. Hornstedt, (some of F.; sd. Dann r. Parker, L. R. 17 C. D. 
 
 the details of which have since been 33, /. 28-9. See also K. r. K., and 
 
 disapproved), L. R. 1 Ex. D. 62; Reed M. v. P., p. 106 /. 4-5. 
 
 & Steel r. Tweddell, L. R. 14 Eq. 586: 0') S. r. W '.; T. v. W. 
 
 Rose v. Haycock, 1 A. & E. 460 n.; (k) T. v. W. 
 
 Sheen r. Winstanley, L. R. 1 C. D. 560; (/) S. r. W., (see 5th line of Ld. J. 
 
 Whitmore v. Claridge, 9 L. T. N. S. James's judgment). 
 
 451; See also explanation in Greener (m) See L. R. 2 Q. B. 640 (fin). 
 
 r. Vane, 46 L. J. Ba. 76, and in Lomax (n) B. v. ft; E. r E. ; Harrison v. 
 
 V. Buzton, L. R. 6 C. P. 112. ft; HeafA v. ft; X. v. M.; M.; M. v. 
 
 (d) Ixard v. Cooifc, (which, however, F. ; P. v. H.;R.8c S. r. 7'. ; P. v. H. ; 
 can scarcely be relied on since the S. r. W. ; L. v. B. • T. v. IF. 
 
 dicta in L. R. 13 C. D. 249), L. R. 9 (o) HuHon v. C. ; K. r. X., M. y. P.; 
 Ch. 271; Jackson r. Ha//, L. R. 4 C. /. V. ft; /. r. H.
 
 PRIORITY OF BANKRTCY- AND WINDG- -UP CREDITS. 577 
 
 stitution for which (a), that was made; and whether the 
 impugned dealing was a disposition (b), an authority (c), or 
 otherwise; and though after-acquired property was com- 
 prised in it (d); and though a false statement of the con- 
 sideration (e), facts accordant with which would have 
 rendered that dealing displaceable (f), was contained in 
 the document by which it was effected ; and though that 
 dealing was registered under the Bills of Sale Act (g) (a 
 circumstance which might be thought inconsistent with an 
 intention to continue the business); and though the parties 
 kept (h) or agree to keep (*) that dealing secret until the 
 disponee should wish to take some step necessary for 
 preventing bankruptcy-creditors from obtaining priority 
 under some other rule to which the present exception does 
 not extend, (as, Registration under the Bills of Sale Act 
 (h)), unless they were actuated by the motive referred to 
 below (j)\ and though, when an advance of money was 
 the means procured, it was comparatively small (k), or was 
 obtained from a Moneylender (/) on stringent conditions (m) 
 and at exorbitant interest (n), or was obtained on a mort- 
 gage authorizing a sale after 24 hours' notice (0), or was 
 
 (a) A.; and see /. r. H. decided before the first Bills of Sale 
 
 (6) Authorities in 576 (n), except Act, and in others the transaction did 
 
 P. v. H. not fall within it, and in others pos- 
 
 (c) P. v. H. session was taken, and in others the 
 
 (d) B. v. C; E. r. E. • Harrison v. impugned disposition was founded on 
 C.\ Heath v. C ; Hutton v. C, (p. 17- a previous agreement. As to registra- 
 8); K. v. M.; K.r. K., (p. 258, /.30-3) ; tion under these Acts see ante, p. 519 
 M. v. F.; M. v. P.; S. r. W., (below {e-j). 
 
 p. 291, /. 19-26); L. v. B. {h) J. r. H.; K. r. K.; See ante, p. 
 
 (e) B. v. C; K. v. M.; qualified, 519 {e-j). 
 Furber r. Pellew, (2d. point), L. R. 6 (i) J. r. H. 
 
 C D 1 8. (j) See, as to this motive, below, p. 
 
 '(f)B.v.C. 579 ((/-/). 
 
 (g) It was thus registered, in Harri- (k) B. v. C; E. r. E.;P. v. R.; and 
 
 son v. C; K. v. AT; M. v. F.; S. r. see J. r. H. And see below, 579 (/)• 
 
 W., (p. 291 , last line) • L. v. B.; J. r. (I) Harrison v. C; Heath v. C. 
 
 H.; and (probably) some of the other (m) Harrison v. C. 
 
 cases, as to which the reports are («) Heath v. C. 
 
 silent. But some of the cases were (o) S, r. W., p. 291, I. 31. 
 
 73
 
 578 PRIORITY OF BANKRTCY- AND WINDG- -UP CREDITS. 
 
 meant to be (a) and was (a) applied in whole (b) or in 
 part (c) to discharge a debt which the bankrupt owed to an 
 importunate third person and for which the party making 
 the advance was surety (d); and though the dealing was 
 made to secure (besides the advance) an antecedent debt 
 (e) till then unsecured (f). But it only applies if the deal- 
 ing was really intended to take effect on the beneficial 
 interest (g) ; and only if (when money was the means pro- 
 cured) the amount was sufficient to afford the debtor a 
 chance of continuing his business (h). And it does not 
 apply if the only advantage procured was a Guarantee of a 
 Composition on the debtor's debts (*"), or an agreement (j) 
 (though fulfilled (;')) to forbear an Existing debt, (much 
 less a probability (k), though realized (k), of such forbear- 
 ance), or an advance of money &c. to another as well as to 
 the debtor (including an advance for the separate benefit 
 of partners when the subject dealt with is partnership 
 property (/)), or a probability (though sought from a Ban- 
 ker (m) and afterwards realized («)) of an advance of 
 
 (a) Hutton v. C- L v. B., (except 21 ; and L. v. B., p. 112, /. 16-8. See, 
 so much as was for an antecedent however, ante, p. 577 (k). 
 
 debt); Af., (same); R. & S. r. T., (i) Leake v. Young, 5 E. & B. 955, 
 
 (same); W. v. C. ; in some of which which compare with Burrell r. Robin- 
 
 the amount so paid off was a charge on son, L. R. 1 C. D. 537. 
 the property; and which are all quali- (j) Paijne r. Cross, L. R. 11 C. D. 
 
 fied by the remarks in L. R. 1 Ch. 539; Woodhonse v. Murray, L. R. 4 Q. 
 
 132, /. 16. B. 27; contra, Philps v. Hornstedt, L. 
 
 (b) Hutton v. C; R. & S. r. T., W. R. 1 Ex. D. 62, disapproved in 10 C. 
 v. C. D 325. 
 
 (c) L. v. B.; M. (*) Cooper r. Baum, L. R. 10 G. D. 
 Id) R. & S. r. T. 315, esp. 324 and 326 (fin). 
 
 (e) A.\. B.; E. r. E.; Heath v. C; (/) Snowball r. Douglas, L. R. 7 Ch, 
 K. v. Af.; K. r. K.; M.; M. v. F.; M. 546, (last 3 lines). 
 
 v. P.; P.v.R ; (see p. 510, 7. 8); P. (m) Lacon v. Liffen, 32 L. J. Ch. 
 
 v. H.; R. & S. r. T.; S. r. W.; I. v. 315; Lindon v. Sharp, 6 Man. & G. 
 
 C; J. r. H., L. v. B.; T. v. W.; qual- 895; with which Carr v. Burdiss, 5 
 
 ified in Pearson v. Moon, 15 L. T. N. Tyr. 136, is not inconsistent (for in it 
 
 S. 444, and denied in 4 Giff. 83, /. 5- the dealing was not held to he fraudu- 
 
 11 on the authority of decisions which lent, nor to be a cessio bonorum), nor, 
 
 seem really referrible to other grounds, (perhaps) is v. Patent File. Co, 23 L. 
 
 (f) This is expressly stated in M., T. N. S. 484, (for in it the only ques- 
 and seems to have been the case in the tion discussed was that of fraudulent 
 other cases cited in note (e). preference). 
 
 (g) P. v. R., p. 722, /. 14-7. (n) Dann r. Parker, (last point), L. 
 (h) See B. v. C; E. r. E., p. 768, /. R. 17 C. D. 26; L. v. S.
 
 PRIORITY OF BANKRTCY- AND WINDG- -UP CREDITS. 579 
 
 money (a) or goods (b) to the debtor himself (whereas an 
 agreement to make such advance would be sufficient (c)). 
 And it does not apply if the parties designed to postpone 
 some step necessary for precluding bankruptcy-creditors 
 from priority under some other rule (d) (for example Regis- 
 tration under the Bills of Sale Act (d)) in order to protect 
 the debtor's credit (e), or to conceal the dealing until his 
 bankruptcy should be imminent (f) ; nor if they actually 
 postponed it until then (g) unless (h) a satisfactory explan- 
 ation be given. Nor does it apply if the purpose of the 
 dealing was really other than that of upholding the debtor's 
 business («'), and the party dealt with knew this (j); nor if 
 he knew of circumstances implying as much (k) (of which 
 extreme smallness in the amount advanced is one (I)) unless 
 there were other circumstances rebutting them (m); nor, 
 therefore, if the advantage procured was merely the relin- 
 quishment of a preexisting with substitution of a new right 
 to seize the property (;z)> or an advance which the creditor 
 was to be entitled to take back immediately (o). 
 
 Fourthly: A Distress for Rent is exempted from being Fomth: Dis- 
 tress for Rent. 
 
 (a) D. r. P. ; Foxhy r. Nurse, L. R. (f) B. r. T.; K.r.B; S. v. S. 
 
 3 Ch. 518-9; L. v. L.; L. v. S.; qual- (g) K. r. B. 
 
 ified in Mercer v. Peterson, L. R. 3 Ex. (h) Conceded, K. r. B. 
 
 106, /. 5. (i) Fisher r. Ash, L. R. 7 Ch. 644, 
 
 (6) Topping v. Keysell, 16 C. B. N. 645; Greener r. Vane, 36 L. T. N. S. 
 
 S. 258. 781. 
 
 (c) Ante, p. 576, (i-m). (j) Necessary, Baxter v. Pritchard, 
 
 (d) Burton v. Tunstall, L. R. 13 C. 1 A. & E. 456; Harwood v. Bartlett, 6 
 D. 102; Cohen r. Sparke, L. R. 7 Ch. Bing. N. R. 61; Pennell v. Reynolds, 11 
 20; Fisher r. Ash, L. R. 7 Ch. 644; C. B. N. S. 772, I. 11-p. 723, /. 5. 
 Furber v. Pellew, (in which but part (*) Cook v. Caldecott, M. & M. 522, 
 of the assets was disposed of, and which qualified, Lee v. Hart, 1 1 Ex. 880. 
 may he compared with the remarks in See Jones v. Gordon, L. R. 2 Ap. 616, 
 Mackenzie v. Bent, 28 L. T. N. S. 486 and Sparrow r. Fowke, 2 D. G. M. Gr. 
 -7), L. R. 6 C. D. 181; Gibson r. Bol- 907, which qu. 
 
 land, L. R, 8 C. D. 230; Kilner r. Bar- (/) Fisher r. Ash, L. R. 7 Ch. 644, 
 
 ker, L. R. 13 C, D. 245; Stevens r. 1. 8-14. See P. v. R., p. 722, /. 23-4. 
 
 Stevens, L. R. 20 Eq. 786; modified, But see ante. p. 577 (*). 
 
 ante, p. 577 (h-i). See ante, p. 515 (m) Re Colemere, L. R. 1 Ch. 128. 
 
 0»,) and, as to registration under this (n) Foxley r. Nurse, L. R. 3 Ch. 520, 
 
 act, 519 (e)-20 (f). I 20-9. 
 
 (e) C. r. S. ; F. r. A; F. V. P; G. (o) Graham v. Chapman, 12 C. B. 85, 
 r. B. commented on in L. R. 6 C. P. 1 12-13.
 
 580 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 Fifth: Assent 
 to, or Acqui- 
 escence in, the 
 Act of Bank • 
 ruptcy. 
 Sixth : Omis- 
 sion to Regis- 
 ter the 
 Certificate. 
 
 overreached by Bankruptcy- (a), Liquidation- (b), or (in 
 Ireland) Insolvency- (a), but not by Winding-up- (c), -cred- 
 itors; whether the person distraining be Landlord (a), 
 Mortgagee with Attornment (d), or otherwise; and whether 
 the event which the creditors overreach under the second 
 canon (e) had occurred when the distress was made, or not 
 (a), and whether the bankrupt (a), or the bankruptcy- 
 trustee (f), was in occupation when the rent was accruing; 
 and though a bankruptcy-Receiver was in possession when 
 the distress was made (b) : but (when the bankruptcy &c. 
 is English, and the event which is, under the second canon, 
 overreached, occurred before the distress was made) only 
 to the extent of one year's rent (a) ; and (when the bank- 
 ruptcy &c. is Irish, and the "act of bankruptcy" (g) had 
 occurred (a), or the imprisonment of the insolvent com- 
 menced (a), before the distress was made,) only for 6 
 months' rent, accrued due before the filing of the petition; 
 and (in any case) not if the sum distrained for was merely 
 a return for the use of some commodity (as gas (h)) ; nor 
 (perhaps) if the goods distrained belong to another than 
 the bankrupt, for the "bankrupt's" goods are alone speci- 
 fied in the section (z), although its words would probably 
 be construed, like similar words in a later one (j), as 
 including the goods of others also (k). 
 
 Fifthly: A Bankruptcy will be annulled if the petitioning 
 creditor (/) or his trustee (m) assented to, or acquiesced in, 
 the act of bankruptcy. 
 
 Sixthly: It is not clear but that omission to Register a 
 
 (a) E. ( b. 34; I., s. 321. 
 
 (6) Re Threlfall,L. R. 16 C. D. 274. 
 
 (c) Thomas v. Patent Lionite Co., L. 
 R. 17 C. D. 250. 
 
 (d) r. T.; Punnet r. Kitchen, L. R. 
 16 C. D. 226. 
 
 (e) Ante, p. 565 (&). 
 
 (/) Hale r. Binns, L. R. 1 C. D. 
 285; ex. Till, L. R. 16 Eq. 97. 
 (g) Defined ante, p. 70 (c) enumerated 
 
 p. 568 (e)-9. 
 
 (h) Hill v. Roberts, L. R. 6 C. D 63, 
 qualified ib. 68, I. 7-10. 
 
 («') E., s. 34; I., s. 321. 
 
 (j) E., s. 125 (5). 
 
 (k) Ante, p. 521 (i). 
 
 (0 Alsop r. Rees, 1 D. G. F. J. 289; 
 Stray r. Stray, L. R. 2 Ch. 374 ; Tope 
 V. Hockins, 7 B. & C. 101. 
 
 (m) Ex. Kilner, Buck. 104.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 581 
 
 Certificate of appointment of a bankruptcy-trustee may (in 
 
 some cases) affect the priority of the bankruptcy-creditors 
 
 (a). 
 Finally: By Composition-resolutions all such claims of Last: Conipo- 
 
 the bankruptcy-creditors upon the assets as are not i u ti ns. 
 
 expressly reserved are extinguished (b) conditionally on the 
 
 fulfilment of the conditions prescribed by the resolutions (c). 
 
 We now come to the rules (d) by which the precise Subordinate 
 
 limits of the canons (e) are ascertained. 
 
 And first: Bankruptcy- (f), Liquidation- (g), and Wind- First: Trust- 
 ing-up- (h) (i) -creditors, are entitled to priority over any Creditors 11 ^ 
 disposition (n) which the debtor may have made upon trust generally. 
 for the benefit of his Creditors generally, and this, whether 
 (at least in case of bankruptcy or liquidation) he made it 
 within this kingdom, or elsewhere {i)\ and (it seems) 
 though it be a mere Agency deed (j). But this rule, in 
 cases of bankruptcy and liquidation, is merely a deduction 
 from the enactment (k) that a disposition (n) for the benefit 
 of creditors is an act of bankruptcy, and consequently, 
 only applies if the disposition was, or was subsequent to, 
 the earliest transaction overreached (I) under the second 
 canon (;«); and, in cases of winding-up, only applies if the 
 
 (i) The enactment (h) respecting Winding-up provides that the disposition 
 shall he void "to all intents." 
 
 (n) " Conveyance and Assignment " only are mentioned in the statutes (fc). 
 
 (a) See, E., s. 83 (8), (extended s. 
 125 (6)); I. amt., s. 121 (7); I, s.269. 
 Ante, p. 407 (gO-408 (<0> 410 (f-k), 469 
 (6), 470 (I), 471 (j),490(o). 
 
 (6) Burrell r. Robinson, L. R. 1 C. D. 
 537. 
 
 (c) Edwards v. Hancher, L. R. 1 C. 
 P. D. 111. 
 
 (d) For an enumeration of these, see 
 r. Wood, L. R. 7 Ch. 306 /. 27-30. 
 
 00 Stated ante, p. 564 (f), 565 (*). 
 
 (f) E., s. 6 (1); L, amt. s. 21 (1); 
 that the law hefore this enactment was 
 substantially the same, see r. Wood, L. 
 R. 7 Ch. 306 /. 28-9, extended, Pons- 
 ford v. Walton, L. R. 3 C. P. 167. 
 
 (</) E., s. 125 (5). 
 
 (A) 25-6 Vic. c. 89, s. 164 (fin). But 
 see conclusion of 9th rule referring to 
 p. 408 (s), &c. 
 
 (i) E., s. 6 (1); I., amt. s. 21 (1). 
 
 (j) See Botcherley v. Lancaster, 2 A. 
 & E. 77, remarked on in 24 L. T. N. 
 S. 506a: and, for explanation of such 
 deeds, see ante, p. 98. 
 
 (fr) E., s. 6 (1)); I. amt. s. 21 (1). 
 
 (J) According to the principle invol- 
 ved in A lien v. Bonnelt, and other cases 
 cited on the corresponding point under 
 the third rule. 
 
 (m) Stated ante, p. 565 (fc)-7 (6).
 
 582 PRIORITY OF DANKRTCY- AND WINDG-UP- -CREDITS. 
 
 Second : Dis- 
 position in 
 Fraud of 
 bankruptcy 
 creditors. 
 Rule &C. 
 
 Company was formed under the act of 1862 (a) and the 
 disposition comprised all its property (a) and was for the 
 benefit of all its creditors (a). And this rule does not hold 
 against trust-deeds under the former bankruptcy acts (b). 
 Secondly: Bankruptcy- (c); and Liquidation- (d), -cred- 
 itors, are entitled to priority over any dealing on the 
 debtor's part, intended (e), or certain (f) if enforced (g), to 
 defeat [h) or delay (i) them, or to postpone some of them to 
 others to whom they would not be by law postponed (j) ; 
 and this, whether it was made within the kingdom, or 
 elsewhere (k) ; and though it comprised but part of his pro- 
 perty (k) ; and was made for value (I) (by way of sale (m), 
 mortgage (11), trust for creditors (0), or otherwise (p)) ; and 
 though it was demanded by and made for some of the cred- 
 itors (q) ; and though the party dealt with was ignorant of 
 some subordinate circumstance necessary to make up an 
 act of bankruptcy (r ) (as, formerly, that the debtor was a 
 
 (a) 25-6 Vic, C. 89, s. 164 (fin). 
 (6) 24-5 Vic, c 134 (E.), s. 192-200; 
 12-13 Vic, 0. 106 (E.), s. 229-234. 
 
 (c) E. s. 6 (2); I. arnt. s. 21 (2); in- 
 terpreted, r. Wood, L. R. 7 Cli. 307 and 
 306 I. 29-30, 307 /. 10. See also the 
 early leading case of Worsely v. d. Mat- 
 tes, 1 Burr. 467. 
 
 Accordingly, Bailey r. Barrell, 3 D. G. 
 M. G. 535; Cook v. Caldecott, M. & M. 
 522; Foxley r. Nurse, L. R. 3 Ch. 515; 
 Mayou r. Edwards- Wood, 12 L. T. N. S. 
 254; Smith v. Carman, 2 E. & B. 35; 
 Snoivball r. Douglas, L. R. 7 Ch. 546; 
 Young v. Fletcher, 3 H. & C. 722; War- 
 den r. Williams, 2 1 W. R. 5 1 ; Wensley 
 r. Wensley, 1 D. G. J. S. 273. 
 
 (d) E., s. 125 (5); interpreted in r. 
 Wood. 
 
 Accordingly, Furber r. Pellew, (3d. 
 reason,) L. R. 6 C. D. 181; Halliday r. 
 Liebert, L. R. 8 Ch. 283; Pearson r. 
 Mortimer, id. 667. 
 
 0) See B. r. B., p. 547 J. 11; C. v. 
 C; F. r. P.; H. r. £.; P. r. M.; and 
 the observations in Pennell v. Reynolds, 
 11 C. B. N. S. 722 ; and the cases in 
 Yate Lee (1st ed.), 42 J. 12-33. 
 
 (/; See esp., Y. v. F, p. 742 /, 2-3; 
 
 S. v. C, p.45 I. 19. See also, B. r. B., 
 p. 543 /. 24-p. 544 1.3; F. r. N.; M. r. 
 E.-W.; S. v. C, p. 42-3; S. r. D.; 
 Warden r. W. ; Wensley r. W. 
 
 (g) Especially, F. r. N., p. 520 /. 16- 
 20. Also the other cases cited in the 
 preceding note. 
 
 (h) Especially, F. r. N.; Y. v. F.; 
 and see r. Wood. Also B. r. B. • F. r. 
 N. ; S. v. C. : Warden r. W. ; Wensley r. 
 W.; F. r. P.; H. r. L.; P. r. M. 
 
 (i) S. v. C. 
 
 (j) M.x. E.-W.;S. r. D. 
 
 \k) E., s. 6 (2); I., amt. s. 21 (2). 
 
 (/) As in most of the cases; and see, 
 especially, Pennell v. Reynolds, 11 C. B. 
 N. S. 722 /. 17-21. 
 
 (m) C. v. C; P. r. M.; Warden v. 
 W. 
 
 (n) B. r. B.; F. r. N.- S. v. C.fS. 
 r. D. ; F. v. F. ; Warden r. W. ; F. t'P. 
 
 (e) Wensley r. W. 
 
 (p) M.r. E.-W.; H.r.L. 
 
 (g) Especially, B. r. B. Also S. v. 
 C; r. v. F; Warden r. W.; Wensley 
 r. W. 
 
 (r) Defined ante, p. 70 (e), enumera- 
 ted p. 568 («)-9.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 583 
 
 trader (a).) But this rule is merely a deduction from the 
 enactment (b) that a fraudulent conveyance gift delivery or 
 transfer of any of the debtor's property is an Act of bank- 
 ruptcy, and, therefore, (perhaps) only applies if the dealing 
 was, or was subsequent to, the earliest transaction over- 
 reached (c) under the second canon (d) ; and it only applies 
 if some interest in property was transferred by the dealing 
 (e); and only if Notice of the fraudulent intention or its 
 equivalent be brought home to the party dealt (f). And 
 it does not apply if any of the general exceptions (g) be 
 applicable ; nor is an intention or tendency to defeat &c. 
 these creditors imputed if the debtor was solvent (h) ; nor 
 is such intention &c. equalled in effect by an intention to 
 defraud purchasers (i) ; nor by an intention (though after- 
 wards carried out (j)) to pay away by way of fraudulent 
 preference the money obtained by the dealing (j). 
 
 But an intention to defeat bankruptcy- &c. -creditors is Presumptions 
 presumed from evidence of trouble, taken to avoid circum- s fraud ' 
 stances under which a ceremony involving publicity would 
 become necessary to preclude them from a priority which 
 they would otherwise obtain under some other rule, (as, 
 when a succession of equivalent dispositions are made to 
 obviate the necessity of Registration under the Bills of 
 
 (a) S. v. C , p. 39-40. (e) *»«" v. Beeston, L. R. 4 Ex. 159; 
 
 (6) E., s. 6 (2); I., amt. s. 21 (2). and see Mercer v. Peterson, L. R. 3 Ex. 
 
 (c) See Games r. Bamford, L. K. 12 105 /. 22-4. 
 
 C. D. 324 /. 9-12. The observations in (f) Pennell v. Reynolds, 11 C. B. N. 
 
 Allen v. Bonnett, (L. R. 5 Ch. 581 /. 15 S. 722 (fin); see C. v. C.\ see S. y. D., 
 
 -21), seem to refer only to frauds p. 548-9. 
 
 against the party dealt with, and (g) Stated ante, p. 571 (n)-81 (c). 
 
 against creditors generally irrespec- (A) Bolland r. Price, 4 1 L. J. Ba. 62 
 
 tively of bankruptcy. '■ 34-9 (in which however, at /. 49-51, 
 
 See, however, Taylor r. Taylor, 5 D. it was thought that, even supposing he 
 
 G. M. G., and the observations in Jones wereinsolvent, funds for carryingon the 
 
 v. Harber, L. R. 6 Q. B. 77. But the business might have been raised by 
 
 remarks in e. Sparrow, 2 D. G. M. G. sale of other property) ; Young v. Waud, 
 
 913 proceed on the assumption that the 8 Ex. 221 ; and see S. v. C, p. 41 /. 9- 
 
 dealing there was a cessio bonorum, and 12; P. r. M., p. 675-6. 
 
 are therefore contrary to the recent («) Re Wood, L. R. 7 Ch. 307 /. 10. 
 
 cases cited below. (j) Stubbins r. Wilkinson, L. R. 17 
 
 (d) Stated ante, p. 565 (fc)-8 (d). C. D. 58.
 
 584 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 Sale Act (a)). And a conclusion that they would be defeated 
 by the enforcement of the rights conferred by the dealing 
 is drawn from evidence that the debtor could not, after 
 such enforcement, continue a business by which he lives 
 (b); or that the greater part of his assets (c) were by 
 the dealing transferred to some only of his creditors (d) 
 while he was insolvent (d); or that he intended by the 
 dealing to avoid complication on his expected bankruptcy 
 {e); or (it seems) that by the dealing he committed his 
 money to one with whom it probably would not be 
 discovered (f); or that other presumptive circumstances 
 exist (g) ; unless, (in the first (Ji), or any, case,) rebutting 
 circumstances also be proved. And a conclusion that some 
 of them would be postponed by the dealing to others to 
 whom they would not be postponed by law is drawn from 
 evidence that a share in an insolvent partnership was, by 
 the dealing, mortgaged for separate debts (i), or disposed 
 of to a single partner (j), (unless the arrangement was 
 part of a scheme for carrying on the business (k)) ; or that 
 a transaction, which if completed in the usual way would 
 be an act of bankruptcy, has been completed in another 
 way for the benefit of a creditor dealt with (w), as, when a 
 
 (a) Furber r. Pellew, (in which, how- 475-6; and, for extension of the doc- 
 
 ever, a Receiver had been appointed), trine, B. r. B. p. 545 I. 8-9, 546 /. 8-9. 
 
 L. R. 6 C. D. 181 ; and, as to the cor- (c) Defined ante, p. 548 (n). 
 
 responding point respecting cessiones (d) Wcnsley r. W. 
 
 bonorum, see below in this chapter. See (e) Warden r. W. 
 
 as to Registration, ante, p. 519 (e). (f) Suggested, H. r. L. 
 
 (6) Y. v. F., and the cases cited (g) F. r. N. p. 519; S. v. C. p. 34- 
 
 there, p. 743 ; by which Smith v. Timms 45; sd., Pearson r. Mortimer, L. R. 8 
 
 1 H. & C. 849 (unless supported on Ch. 673-4. See also a statement of 
 
 the ground that the business would several evidentiary circumstances in 
 
 have stopped even if the dealing had Yate Lee on Bankruptcy (1st ed.) p. 
 
 not been made), Balme v. Hutton, 2 Y. 42 I. 12-33, qualified in M. v. F. 557 
 
 & J. 102 /. 28-30 (unless supported on /. 22-3. 
 
 the ground that the question whether (h) Young v. Waud, 8 Ex. 221. 
 
 the removal of trade-machinery must (i) S. r. D. 
 
 stop the trade was for the jury), and (j) M. r. E.-W. 
 
 Hale v. Allnutt, 18 C. B. 305, seem to (h) Abbot v. Burbage, 2 Bing. N. R. 
 
 be overruled. 444. 
 
 See Mather v. Frazer, 2 K. & J. 557 (I) P. r. M., p. 673-4. 
 
 I. 22-3; Worseley v. d. Mattos, 1 Burr. (m) Sd., P. r. M., p. 674 /. 7-12.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 585 
 
 debtor, whose goods have been seized under an execution, 
 sells them to the execution-creditor (a), (or to some one 
 colluding with him (&)), under an arrangement for the 
 discharge of the debt out of the price. 
 
 Thirdly: Bankruptcy (c)-, and Liquidation (d)-, creditors Third: Cessio 
 are entitled to priority over a cessio bononim, that is, a deal- 
 ing by which the debtor parts with all (e) that property 
 (including book-debts ffj) of his, whether at home or abroad 
 (g), which would pass to his bankruptcy-trustee (h), or with 
 so nearly all as to imply a design to evade the rule (i), or 
 with all except a portion bearing but a small proportion 
 to his unsecured liabilities (/), or (perhaps) with part in 
 pursuance of an intention that he should transfer the whole 
 (j) : and they have this priority, whether the debtor was a 
 trader (k) or not (/); and whether the dealing took place 
 within the kingdom or elsewhere (k) ; and whether it was 
 a disposition (m), an authority to make one (n), a contract 
 (o), an adhesion to a society by whose rules a specified 
 distribution of the assets in cases of insolvency is prescribed 
 (p) (for example the stock-exchange (p)), or otherwise; 
 
 (i) As to what proportion must be retained, see the authorities in the note (q). 
 
 (a) P. r. A/., p. 673-4. (h) H. r. K. 
 
 (b) Sd. P. r. M., p. 675 /. 7-12. (i) F. r. N., p. 519, /. 8-9; G. v. T. 
 
 (c) E., s. 6 (2); I. amt. s. 21 (2) ; in- (j) T. v. S., p. 234, I 22-6. 
 terpreted r. Wood, L. R. 7 Ch.302; ac- \k) E., s. 6 (1); I., amt, s. 21 (1). 
 cordingly, Columbine v. Penhail, 1 S. & (/) W ., p. 308. 
 
 G. 228; Dann r. Parker, L. R. 17 C. (m) Authorities cited below, in p. 586 
 
 D. 26; Defries r. Myers, 35 L. T. N. S. (b-c), except P. v. H. 
 
 392; Foxley r. Nurse, L. R. 3 Ch. 515; (n) Philps v. Hornstedt, L. R. 1 Ex. 
 
 Goodricke v. Taylor, 2 D. G. J. S. 135; D. 62, esp. p. 63. 
 
 Payne r. Cross, L. R. 11 C. D. 539; (o) T. v. $.; said, in effect, B. r. T., 
 
 Smith v. Cannan, 2 E. & B. 35; Tom- p. 108 /. 18-p. 109 /. 4. Consequent- 
 
 kins v. Saffery, L. R. 3 Ap. 213. lv, the remark in Mercer v. Peterson, 
 
 (d) Burton r. Tunstall, L. R. 13 C. (L. R. 3 Ex. 105, /. 22-4), must be 
 D. 102; Cooper r. Baum, L. R. 10 C. understood of such agreements only as 
 D. 313; Hawker r. Keely, L. R. 7 Ch. are not enforcible specifically. 
 
 214; King r. King, L. R. 2 C. D. 256; (p) T. v. S., p. 213, 222. 
 
 Lomax v. Buxton, L. R. 6 C. P. 107. (?) Bolland r. Price, 41 L. J. Ba. 62; 
 
 (e) As in T. v. S. and remark in King r. King, L. R. 2 
 
 (f) B. r. T. C. D. 263, /. 22-3. 
 
 0?) D. r. M. 
 
 74
 
 586 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 and whether made by way of sale (a), settlement (b), or 
 mortgage (c); and whether its purpose was to secure an 
 equal distribution (as in bankruptcy) amongst a specified 
 class of creditors (d) (i), or to secure an antecedent debt 
 (e), or otherwise (f) ; and though (at least when made on 
 the eve of bankruptcy (g)) it was not fraudulently intended 
 (h), nor displaceable as a preference (i); and though (when 
 it was a security) a substantial surplus was likely to remain 
 after realization (j), and possession was taken under it 
 before the petition was filed (k) ; and though the fact that 
 the debtor had substantially no other property was not 
 apparent on the document by which it was effected (I) nor 
 known to the party dealt with (m) ; and though the latter 
 gave value («), (even marriage (0)), and was unavoidably 
 ignorant of some subordinate circumstance necessary to 
 constitute the dealing an act of bankruptcy (p). But this 
 rule, also, is a deduction from the enactment (q) that a 
 fraudulent conveyance &c. is an act of bankruptcy, and, 
 therefore, only applies if the dealing was, or was subse- 
 quent to, the earliest transaction overreached (r) under the 
 second canon (s). And it does not apply if the debtor, 
 when he made the dealing, was able to pay all debts for 
 
 (1) Another ground of this decision (d) was that the dealing was a fraudulent 
 
 preference, one chief object of it having been to benefit the debtor himself after 
 his discharge. 
 
 (a) On principle, and by analogy to preferences are displaceable, see below 
 
 the cases cited ante, p. 582 (m). in this chapter. 
 
 (6) C. v. P. (j) S. v. C, (2d. point). 
 
 (c) D. r. P; D. r. M.; F. r. N.; G. (k) P. r. C, p. 541, /. 1-3; T. v. S. 
 v. T.; P. r. C.;P. v. H.; S. v. C; W; (/) P. r. C, p. 541, /. 1-3; admitted 
 B. r. T.; C. r. B.; H. r. K.; K. r. K.; P. v. H. 
 
 L. v. B.; T. v. S. (m) Impliedly said, P. v. H., p. 63, 
 
 (d) T. v. S., p. 222, and, in the court I. 13-15. 
 
 below, 4 C. D. 560, /. 28-38. (n) As in all the cases. 
 
 (e) K. r. K. (o) C. v. P. 
 
 (f) Sd., T. v. S., p. 222, /. 16-17. (p) S.y.C, p. 39-40. Ante,p. 383 (a). 
 (?) L. R. 4 C. D. 561, I. 25. (q) E , s. 6 (2); I., amt., s. 21 (2). 
 \h) F. r. N., p. 519, /. 28-p. 520, /. (r) Allen v. Bonnett, L. R. 5 Ch. 577; 
 
 9; S. v. C, (1st point). Games r. Bamford, L. R. 14 C. D. 324; 
 
 (i) Implied, T. v. S., p. 222, /. 13. Jones v. Barber, L. R. 6 Q. B. 77. 
 
 As to the circumstances under which (*) Stated ante, p. 565 (fc)-8 (rf).
 
 PRIORITY OF BANKRTCY- AND WINDG- -UP CREDITS. 
 
 587 
 
 which he was liable as principal (a) or surety (b) ; nor if the 
 party with whom he dealt believed him to be so (c) ; nor if 
 he retained so much of his property that he might possibly 
 have continued his business with advantage (d) (i) or raised 
 money for doing so (e) ; nor if one of the general exceptions 
 intervened (f) ; nor if circumstances presumptive of one of 
 them intervened and the dealing was for value (g), unless 
 the disponee was aware of the rebutting facts (h) ; nor if 
 the dealing was a disposition on trust, by sale or mortgage, 
 to indemnify any person who should pay, or become liable 
 for, any money on account of the debtor, and (subject 
 thereto) for the debtor (i). 
 
 Fourthly: Bankruptcy- (j), Liquidation- (k), and (it 
 seems) Insolvency- {I), and (perhaps) Winding-up- (m), 
 -creditors, are entitled to priority over a clause by which 
 the debtor provided that, on his bankruptcy &c, some 
 property or money of his should pass to another, — as, that 
 Building materials should pass to one for whom he was 
 
 Fourth : Limi- 
 tation over on 
 Bankruptcy. 
 
 (i) These authorities (rf) seem conclusive against the remarks in two earlier 
 cases (n), of which the former was founded on a decision (o) which I have re- 
 ferred (p) to a different principle, and the latter may be restricted (q) to the 
 point then before the court. A disposition by which the debtor parts with all 
 his trade property, but retains so much of his other property that he might (by 
 selling it) raise a sum sufficient to set himself up in business again, will (it 
 seems) be presumed to be displaceable as a fraudulent disposition (r), but not 
 as a cessio bonorum (»). 
 
 (a) Sd., S. v. C, p. 41, /. 9-12. 
 
 (b) G. v. T. 
 
 (c) Baxter v. Pritchard, 1 A. & E. 
 456, expld. 2 E. & B. 41, I. 9-12. 
 
 {d) Bolland r. Price, 41 L. J. Ba. 62; 
 F. v. N., 523, I 29-30; G. v. T., p. 
 141; sd., Lomax v. Buxton, L. R. 6 C. 
 P. 112, /. 15-19. See also ante, p. 
 584 (b). 
 
 (e) D. r. P., p. 34, I. 24 
 
 (f) Stated ante, p. 571 (a)-8I (c). 
 
 (g) Re Colemere L. R. 1 Oh. 128. 
 (A) Conceded r. C. 
 
 \i) Berney v. Vyner, 1 B. & B. 482 ; 
 Greenwood v. Churchill, 1 M. & K. 546. 
 
 (j) Higinbotham v. Holme, 19 Vez. 
 87; r. Murphy, 1 S. & L. 179; Whit- 
 more v. Mason, 2 J. & H. 204 ; Wilson 
 
 v. Greenwood, 1 Swan. 471. 
 
 (fc) Jay r. Hammond, L. R. 14 C. D. 
 19; Mackay r. Jeavons, (1st point), L. 
 R. 8 Ch. 643; Williams r. Thompson, L. 
 R 7 CD. 138. 
 
 (/) See Holmes v. Penney, 3 K. & J. 
 102; Casey's trust, 4 Ir. Ch. 29. 
 
 (m) See the principle involved in the 
 decision (afterwards reversed on another 
 point), in r. Stockton I. Co., L. R. 10 
 C. D. 335. 
 
 (n) C. v. P., p. 257, l 15-21; S. v. 
 C, p. 39-40. 
 
 (o) Hall v. Wallis, 7 M. & W. 353. 
 
 (p) Ante, p 571 (/)• 
 
 (g) Accordingly, ante, p. 586 (j)- 
 
 (r) Explained, ante, p. 5S2 (c)-5 {b). 
 
 (s) Explained, ante, p. 585.
 
 588 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 erecting a building (a); that a security on his property 
 should be extended (b) (for example, from half to the whole 
 of a periodical sum payable to him by the mortgagee (c); 
 that his share in a partnership should pass to his co-part- 
 ners without (d) (or, at least (e) under circumstances (f), 
 for,) an equivalent of which creditors could avail them- 
 selves; that property, which he settled on himself till bank- 
 ruptcy, should pass to his wife (g) or to any other; or that 
 he should pay a sum of money for her or otherwise (h): — 
 and this, though value (J) (even marriage (/)) was rendered. 
 But, when the clause was one by which the debtor, on 
 marrying a woman who brought him a pecuniary or funded 
 fortune (k), settled (/) secured (m) or undertook to pay (n) a 
 sum for her benefit, they are only entitled to displace the 
 amount by which that sum exceeds her pecuniary (o) or 
 funded (p) (exclusive, it seems (</), of her other,) fortune; 
 for such a clause is considered a circuitous settlement of 
 that fortune (v). And they are not entitled to this priority 
 over a clause by which the debtor provided that, bn his 
 bankruptcy &c, property &c. of his should pass to one 
 entitled to require such a settlement of it (s), or be seizable 
 under a lien already existing \t)\ or that, on some other 
 event than his bankruptcy, money or property of his should 
 
 (a) J. r. H.; qualified in r. Waugh, land, 5 Sim. 205; r. Meaghan, 1 S. & 
 L. R. 10 C. D. 524, which is explained L. 179; Young r. Lark, 3 Mad 124. 
 in 14 C. D. 26. (/) H. v. B.; L. v. G. 
 
 (b) M. r. /.; \V. r. T. (m) H. v. K. 
 
 (c) M. r. /. (w) Ex. C; r. M.; Y. r. L. 
 
 (d) W. v. M. (o) Ex. C; H. v. B.i H. v. K.\ r. 
 (e) Special circnmstancesweref/iox^ M. ; Y, r. L. 
 
 necessary in W. v. G., p. 481, /. 12. (p) L. v. G. 
 
 (f) IV. v. G. (q) See remarks in Whilmore v. Ma- 
 
 (g) H. v. H. son, 2 J. & H. 214, which seem, on 
 (h) Re Murphy. consideration of the note there, to be 
 (i) As in all the cases. questionable. 
 
 (j) As in H. v. H., and r. M. (r) See IV. v. it/., p. 214. 
 
 (fc) As in ex. Cooke, 8 Vez. 353; (s) Montefiore v. Behrens, L. R. 1 Eq. 
 
 Hammonds v. Barrett, (from her bro- 171. 
 
 ther),21 L. T. N. S. 321 ; Higginson v. (<) Cases cited in L. R. 14 C. D. 
 
 Kelly, 1 Ba. & B. 252 ; Lester y. Gar. 26.
 
 PRIORITY OF DANKRTCY- AND WINDG-UP- -CREDITS. 589 
 
 pass to another (a), (whether that event was his death (b) 
 or otherwise {c), and whether it occurred before his bank- 
 ruptcy (d) or not (e), and though bankruptcy also was 
 specified as another event on which the property &c. was 
 to pass (f))\ or that, whether or not he might become 
 bankrupt, so much of some property &c. of his as trustees 
 may think fit should belong to his wife or children or to some 
 other person (g), (an exception by which the rule can be 
 frequently evaded). And, of course, a clause in a Compo- 
 sition-deed cannot be affected by this rule, because the 
 debts, which are the subject dealt with, are the property of 
 the creditors (h). 
 
 Fifthly: Bankruptcy (/)-, Liquidation (/)-, and (it seems) fifth; Attorn- 
 
 YVinding-up (k)-, -creditors, are entitled to priority over a me , nt clause 
 ° ^ v ' f j and power t0 
 
 Distress which a Mortgagee has made on land of the Distrain, 
 debtor for a rent which forms part of his security, and the 
 amount of which is so excessive as to imply that it was 
 reserved with the intention of not enforcing it until bank- 
 ruptcy (/), and which therefore operates to increase the 
 security as from the bankruptcy (m): and this, though the 
 rent was a yearly one, created by an Attornment clause 
 (»), and reserved on a tenancy from year to year (o), to be 
 
 (a) Boddam r. Taylor, 2 D. G. F. J. 
 625; Brooke v. Pearson, 27 Bea. 181; 
 r. Meaghan, 1 S. & L. 179; e. Oxley. 1 
 Ba. & B. 257; Shute r. Shute, 1 D.& 
 C. 1. To tins doctrine Higinbotham v. 
 Holme, 19 Vez. 87, is not contrary 
 (for in it the decision was that the 
 plaintiff was not entitled to the whole 
 annuity, which decision did not neces- 
 sarily imply that she was not entitled 
 to any part of it), and r. Pearson, L. 
 R. 3 C. D. 807, is not really contrary 
 (for it depended on the principle to 
 which I have referred it, ante, p. 549 
 
 (b)B. r. T.; M.; O.; S. r. S. 
 
 (c) B.v.P.; S.r. S. 
 
 (d) B.v.P. 
 
 (e) B r. T.; M., p. 181; O., p. 259; 
 S. r. S. 
 
 (f) B. r. T.; B.v. P.; M.- O.; in 
 
 effect, S. r. S. 
 
 (g) Holmes v. Penney, (4th point), 3 
 K. & J. 90; Page v. Way, 3 Bea. 20; 
 3 Dav. Conv. (3d. ed.), p. 135, n. (p). 
 
 (h) Ex. Vere, 19 Vez. 93. 
 
 (i) Implied in the cases in the nest 
 note. 
 
 (j) Jackson v. Bowes, L. R. 14 C. D. 
 725; Williams r. Thompson, (with cor- 
 roborative circumstances), L.R. 7 CD. 
 138. 
 
 (k) Re Stockton Iron F. Co., L. R. 
 10 C. D. 335, (rvd. on another point). 
 
 (/) Necessary, see /. v. B., and W. 
 r. T. 
 
 (m) See ante, p. 588 (b). 
 
 («) That is, a clause by which the 
 mortgagor makes himself tenant to the 
 mortgagee. 
 
 (o) As in /. v. B. ; and W. r. T.
 
 590 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 paid by quarterly or half-yearly instalments on specified 
 days (a). But they are not entitled to this priority merely 
 because the rent greatly exceeds the interest on the mort- 
 gage-debt (b), and was distrained for privately (c) ; nor even 
 because it is excessive as compared with what may perhaps 
 be the value of the property, when that value is indeter- 
 minate (c): Bankruptcy- and Liquidation- -creditors need 
 rarely now resort to this rule, for they obtain, by the Bills 
 of Sale Act, priority over every Distress made under a 
 mortgage (d), unless the latter falls within one of the 
 exceptions to that Act (e); or was made of English pro- 
 perty before ist January, or of Irish before ist November, 
 1879 (f), and in none of the cases (g) cited did it fall 
 within the chief exception ; for in none was it registered. 
 Sixth: Frau- Sixthly: Bankruptcy- (h), Liquidation- (i), and Winding- 
 
 dulent Prefer- up _ (j\ (a fc u t not Administration- (k), -creditors, are 
 
 ence. 
 
 Rule &c. entitled to priority over a Preference (/) (11) of any debt to 
 
 (I) I assume that Winding-up-creditors can displace such preferences, and 
 such only, as bankruptcy-creditors can, by the law in force when tlie preference 
 is made rather than by that in force when the company's act was passed, dis- 
 place ; but this seems doubtful. 
 
 (II) The doctrine of fraudulent preference is quite distinct from the rule (m) 
 by which an agreement between a debtor and creditor that the latter shall 
 receive value for agreeing to a Composition &c. is invalidated. 
 
 (a) As in /. v. B.; and W. r. T. Bartlett, cited Cowp. 124, I. 6-7; 
 
 (6) Punnett r. Kitchin, L. R. 16 C. D. Marks v. Feldman, L. R. 5 Q. B. 275; 
 
 226; Jolly v. Arbuthnot, 4 D. G. M. G. Marshall v. Lamb, 5 Q. B. 115; Tom- 
 
 224; Morton v. Woods, L. R. 4 Q. B. kins v. Saffery. L. R. 3 Ap. 225. 
 
 293; r. Threlfall, L. R. 16 C. D. 274. (i) E., s. 125 (5); Halliday r. Lie- 
 
 (c) Re Stockton Iron F. Co., L. R. 10 bert, L. R. 8 Ch. 283; Hodgkin r. Soft- 
 C. D. 335. ley, (as to Consolidation), L. R. 20 
 
 (d) Ante, p. 513 (f). Eq. 757 (fin), Pearson r. Mortimer, 
 («) Ante, p. 516 (t/)- 20 (f), 513 (last point), L. R. 8 Ch. 667. 
 
 /. 14. (j) 25-6 Vic, c. 89, s. 164. 
 
 (f) Ante, p. 513 (g). (k) Middleton v. Pollock, L. R. 2 C. 
 
 (g) J. v. B., p. 727, /. 14; W. r. T., D. 104. 
 
 p. 141, /. 18; S I. F. C, p. 338, I. 17. (/) Defined also in Nunes v. Carter, 
 
 (A) E., s. 92; I, amt., s. 53; Alder- L. R. 1 P. C. 348, /. 4-9. As to the 
 
 son v. Temple, 4 Bun. 2235; r. Gibson, history of the doctrine see 1 Stark. 89. 
 
 (in which the bill of sale was at once a The earliest case on the subject is A. 
 
 fraudulent preference and a cessio v. T., not now very important. 
 
 bonorum), L. R. 8 C. D. 280; Harmam (m) Explained in Mc.Kewan v. San- 
 
 v. Fishar, 1 Cowp. 117; r. Hibernian derson, L. R. 15 Eq. 65, and the autho- 
 
 Jt. Stk. Bk., 14 Ir. Ch. 113; Linton v. rities there cited.
 
 PRIORITY OF BANKRTCY- AND WINDG- -UP CREDITS. 591 
 
 other debts to which it would not be by law preferred (i); 
 whether such preference consisted in payment (a), satis- 
 faction (by bills (b) goods (c) or otherwise), or security (d); 
 and whether it was given by incurring an obligation (e), 
 taking or suffering a judicial proceeding (e), inviting (per- 
 haps) the creditor to take goods on which the debt is 
 secured out of the debtor's order and disposition (f), or 
 (perhaps) selling to him (under certain circumstances) 
 goods which he has seized under an Execution (g), or 
 selling to him a right to consolidate mortgages (Ji), or 
 giving (under circumstances) in Ireland a warrant, 
 cognovit, or consent for judgment (*); and whether (when 
 consisting of satisfaction or security) it comprised all the 
 assets (j), or some only (j) ; and whether the debtor was 
 a trader (k), or not (k); and though the preference was not 
 an act of bankruptcy (I), but occurred before the earliest 
 transaction which could be overreached (m) under the 
 second canon (11) ; and though the steps which the debtor 
 took towards giving the preference were in fulfilment of an 
 agreement respecting his insolvency made before that 
 insolvency was probable (0); and though the preference 
 was effected by a document registered under the bills of 
 
 (1) I have not thought it necessary to advert, except in a few instances, to the 
 peculiarities of the law applicable to fraudulent preferences occurring in Eng- 
 land before 1870 or in Ireland before 1873. The former was all judiciary (p), 
 the latter depended also on statute (q). 
 
 (a) Sufficient, M. v. L.; T. v. S.; («') I., s. 333. 
 
 H. r. L. (j) E., s. 92; L, amt, s. 53. 
 
 (b) Sufficient, A. v. T.; H. v. F. (*) See, Topham r. Walker, L. R. 8 
 
 (c) Sufficient, L. v. B.; sd., P. r. Ch. 619, /. 11-12. 
 
 Af.; assumed, Tempest r. Craven, L. (/) A. v. T., esp. p. 2239, /. 38-42; 
 
 R. 6 Ch. 70; assumed, Topham r. Wal- M. v. F., (decided on the statute of 
 
 ker, L. R. 8 Ch. 614. 1849); and see ante, p. 568 (/-")• 
 
 (<f) Sufficient, M. y. F.; H. r. S., (m) As in M. v. F. Implied in E., 
 
 (as to consolidation). s. 92; I., amt., s. 53. 
 
 (e) E., s. 92; L, amt, s. 53. (n) Stated ante, p. 565 (/J-8 (d). 
 
 (f) Suggested, r. Wright, L. R. 3 (o) T. v. S. 
 
 C. D. 77, /. 7-11. Contrary decided, (p) Sd., Butcher v. Stead, L. R. 7 
 
 ex. Marjoribanks, 1 D. G., compare p. H. L. 846, /. 4. See A. v. T., expld. 
 
 476, /. 20-3, with p. 474, I. 23-25. in M. v. F., esp. p. 279, /. 21-2. 
 
 (g) See P. r. M. {q) I., s. 338. 
 (h) H. r. S.
 
 592 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS* 
 
 sale act (a); and though it was made after Arrest under the 
 absconding debtor's act (b); and though the creditor had 
 been importunate (c), (unless his importunity was the 
 cause of the debtor preferring him (d)); and though the 
 debtor himself commenced the bankruptcy-proceedings (e), 
 thus invalidating his own dealing (c); and though (when 
 the preference consisted in a mortgage with power of sale) 
 the creditor sold before the earliest transaction which 
 would be overreached (e) under the second canon (f), (at 
 least if the bankruptcy-trustee claims only the proceeds 
 (c)); and though (when the preference consisted in the 
 delivery of money to the creditor under circumstances 
 leaving in doubt whether it was meant to be applied to his 
 debt) he insisted on an agreement that it should be so 
 applied (g), and had previously asked for some money on 
 account (g), (for these circumstances are held not to 
 negative spontaneity); and though the creditor was a 
 specially meritorious one (h). But these creditors are thus 
 entitled only if the sole motive by which the debtor was led 
 to desire to make the preferred creditor safer than the 
 other creditors was Favouritism, towards either that creditor 
 (/), or some third persons (as, the debtor's family (j)), or 
 the debtor himself after his discharge (k); and, therefore, 
 only (in general (/)) if the preference was Spontaneous on 
 the debtor's part (7/?), and only if the intention was (#), or 
 the obvious result would be (0), that the creditor should 
 
 (a) Accordingly, r. Gibson. R. 8 Ch. 619, /. 18, 25-31 ; sd. Bolland 
 
 (b) 33-4 Vic, c. 76, s. 3. r. Cherry, L. R. 7 Ch. 26-7, compared 
 
 (c) Cox v. Pritchard, 5 Man. & G. with notes (c,/t) in this page. 
 
 329, and cases in 2 F. & F. 753, id., (j) Marshall v. Lamb, 5 Q. B. 115. 
 
 754. (k) Tomkins v. Safety, L. R. 4 C. D. 
 
 (<f) Below 593 (d). 561, /. 19. But this point was not 
 
 (e) As in M. v. F. adverted to on appeal in 3 Ap. 
 
 (O Stated ante, p. 565 (/)-8 (d). (/) See, S. v. P., p. 135, /. 21-24; and 
 
 (g) H. r. L, a little further on in this chapter. 
 
 (h) H. v. F. (m) See a little beiow. 
 
 (i) Smith y. Pilgrim, L. R. 2 C. D. (») S. v. P., p. 135, /. 20-21. 
 
 136, /. 20; Tempest r. Craven, L. R. 6 (o) Gibson v. Boutts, 3 Sc. 229. 
 
 Ch. 76, /. 11-5; Topham r. Walker, L.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 593 
 
 receive a larger per centage than the other creditors; and 
 only if (at least (i) in a bankruptcy &c. before 1870 in 
 England or 1873 m Ireland (a)) the preference was given 
 in Contemplation of Bankruptcy (b), or under circum- 
 stances under which bankruptcy was inevitable (c), or 
 was very probable (d) (as, when the debtor had resolved 
 to stop payment (<?)) ; and only if the preference was meant 
 to be binding on the debtor (f); and only if its displace- 
 ment would be beneficial to the other creditors {g)\ and 
 only if (in a bankruptcy &c. since 1869 in England or 1872 
 in Ireland (h)) the case falls within the terms of the recent 
 enactment (i), (which is considered substitutionary for, not 
 suppletory of, the former law); and only if the adjudication 
 (j) takes place within three months (k) after the giving of 
 the preference ; and only if the bankruptcy-trustee returns 
 any money or money's worth freshly given for the prefer- 
 ence (/); and only if (when the preference consists in a 
 
 (1) In a recent appeal case (»•), one of the judges quoted, with approbation, 
 an opinion expressed in an earlier case («)> that the words in the recent enact- 
 ment (o) by which displacement of a preference is made conditional on inability 
 to pay debts are the only words by which (if by any) it is made conditional on 
 contemplation of bankruptcy or on circumstances equivalent thereto. In that 
 case (n) the court seemed to think the new requirement not coextensive with 
 the old one. In another case (p) the court seems to have thought it coexten- 
 sive; but on appeal (q) the point was not adverted to, save that the court said 
 (r) that the preference which is fraudulent under the new law is the same which 
 was fraudulent under the old. 
 
 (a) E., s. 3; I., amt. s. 3. (j) According to r. Gross, 15 Sol. J. 
 
 (6) Atkinson v. Brindall, 2 Bing. N. 96. 
 R. 225; Morgan v. Brundrett, 5 B. & (k) E., s. 92; I., amt. s. 53. 
 Ad. 289; G. v. B.; qualified, Aldred v. (I) Hodgkin r. Softley, (as to the 
 
 Constable, 4 Q. B. 674. £770), L. R. 20 Eq. 757. 
 
 (c) Sd., Johnson v. Fesemeyer, 3 D. (m) Simpson r. Hunt, 1 D. G. 9. 
 
 G. J. 24 /. 23-6. (n) Topham r. Walker, L, R. 8 Ch. 
 
 (d) See authorities cited, I D. G. 17. 619; and see Holland r. Cherry, L. R. 
 («) Simpson r. Hunt, 1 D. G. 9. 7 Ch. 24. 
 
 (f) Gibson v. Muskett, (4th point), 4 (0) Blackburn r. Cheesebrough, L. R. 
 Man. & G. 160. 12 Eq. 364, esp. /. 13, 14, 16. 
 
 (g) Cooper r. Zucco, L. R. 10 Ch. (p) E., s. 92, I., amt., s. 53. 
 
 510. (9) Craven x. Craven, L. R. 10 Eq. 
 
 (K) E., s. 3; I., amt. s. 3. 648. 
 
 (i) Sd., Stubbing r. Wilkinson, L. R. (r) Norn. Tempest r. Craven, L. R. 6 
 
 17 C. D. 62 /. 14-17. Ch. 70. 
 
 (s)T. r.C, p. 75 (fin). 
 
 75
 
 594 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 disposition of some specific subject) the bankruptcy-trustee 
 has since declared an option to invalidate it (a), (as, by 
 demanding that subject (a)), unless it has been sold, and 
 he claims only the purchase-money (b). And they are not 
 thus entitled if the debtor, when he gave the preference, 
 was able, from his own moneys, to pay his debts as they 
 should become due (c); nor if the preference was a payment 
 made in the ordinary Course of Business (d) ; or with the 
 hope (e), however desperate (f), of regaining solvency, 
 (unless the creditor had then notice of an act of bankruptcy 
 previously committed (g) (i)); nor if it was a payment (h) 
 security («') or satisfaction which the debtor was bound to 
 make on that particular day (h), or on an event then 
 occurring (as, a demand then made (?')); nor if it was a 
 security given to a Banker in the hope of obtaining a 
 further advance (j), or given on a fund as security for an 
 advance but for which that fund could not have been 
 acquired (k) ; or consisted in restitution of something which 
 the debtor had stolen (I), or of a trust-fund which he had 
 abstracted wrongfully (m), or by mistake («) ; nor if (since 
 1869 in England or 1872 in Ireland (0)) the creditor had 
 
 (1) But, it' an act of bankruptcy had been committed, the transaction would 
 (in general) be Toid under the second canon (p), and if it were the question of 
 fraudulent preference could not arise. 
 
 (a) Nixon v. Jenkins, 2 H. Bl. 135, ted, Tomkitis v. Saffery, L. R. 3 Ap. 
 
 expld. in 13 C. B. 303-4, and approved 235. 
 
 in Heilbut v. Nevill, L. R. 5 C. P. 481, (f) Suggested, T. v. S.,y. 235, /. 20. 
 
 and in Marks v. Feldman, L. R. 5 Q. (g) Sd., L. R. 12 Eq. 363 (fin). 
 
 B. 281. (A) Bills v. Smith, 6 B. & S. 314. 
 
 (6) H. v. N., esp., p. 481, /. 4. (i) See Hodgkin r. Sojtley, L. R. 20 
 
 (c) E., s. 92; I., amt, s. 53; as to Eq. 755. (fin). [N. S. 484. 
 the meaning of these words see the (j) Re Patent File Co. Ld., 23 L. T. 
 somewhat similar words in s. 91, (k) Hunt v. Mortimer, 10 B. & C. 
 below. 44 ; and see Mavor v. Croome, 1 Bing. 
 
 (d) As to what is considered such, 261. 
 
 see Blackburn r. Cheesebrough, L. R. 12 (/) Sd. Stubbins r. Wilkinson, L. R. 
 
 Eq. 363, /. 29-36, and Norton v. 17 C. D. 69. 
 
 Golden, L. R. 16 Eq. 397. (m) Decided, S. r. W. 
 
 (e) Kevan r. Crawford, (\n which the (n) Kelly v. Smith Fleming fy Co., L. 
 court did not rely on the circumstances R. 11 C. D. 306. 
 
 that the creditor was ignorant of the (o) E., s. 3; I., amt., s. 3. 
 Insolvency), L. R. 9 Ch. 752; sugges- (p) Stated ante, p. 565 (k)-8 (d).
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 595 
 
 accepted the preference (a) in good faith (b), in ignorance 
 (c), not readily avoidable (d), of the fraudulent intention or 
 circumstances, unless the debt which was preferred had 
 been created gratuitously (e) (as, by bestowal of a bond or 
 covenant) ; nor even then, if he to whom the preference is 
 given, or some one under whom he derives, had, for value, 
 acquired the debt from the original creditor (f). And a 
 disposition made for value with intent to apply the proceeds 
 in making a fraudulent preference is not itself displaceable 
 as a fraudulent preference (g). And a payment which the 
 debtor made to his Surety, that the latter might hand it to 
 the creditor and thus exonerate himself (which he accor- 
 dingly did), is not recoverable from the creditor as a prefer- 
 ence (A). And (of course) persons other than the bank- 
 ruptcy-&c. -trustee cannot invalidate a preference («'), save 
 that a Company has been held (j) entitled to set aside a 
 fraudulent preference made by itself. 
 
 Spontaneity (k) in giving a preference (/), or in giving Digression as to 
 information of insolvency to the known creditor (m) (and Spontaneity 
 not merely to one whom the debtor did not know to be 
 
 (a) Butcher v. Stead, L. R. 7 H. L. (j) Gaslight I. Co. v. Terrell, L. R. 
 
 839, and authorities cited ante, 594 (e). 10 Eq. 168. 
 
 (6) So in the statute : but the words (k) Explained, Totnkins v. Saffery, 
 
 seem to mean ''in ignorance," L. R. 7 L. R. 3 Ap. 225; Johnson v. Fesemeyer, 
 
 H. L. 847, /. 6-7. 3 D. G. J. 24-26; Blackburn r. Cheese- 
 
 (c) As in Kevanv Crawford, L. R. 9 brough, L. R. 10 Eq. 363 /. 14-17; 
 Ch. 752, and Hodgkin r. Soft ley, L. R. Graham v. Candy, 3 F. & F. 206. 
 
 20 Eq. 754. Said to be necessary, (I) Belcher v. Prittie, 10 Bing. 408, 
 
 Tomkins v. Saffery, L. R. 3 Ap. 236; esp. 415 /. 10; sd. Bollandv. Cherry, L. 
 
 and Butcher v. Stead, L. R. 7 H. L. R. 7 Ch. 26-27; Boyle r. Collett, 25 L. 
 
 847, /. 6-7. T. N. S. 550; Brown v. Kempton, 19 
 
 (d) Necessary, T. v. S., p. 227, 237, L. J. C. P. 169, esp. 170 b., /. 14-16; 
 with which contrast H. v. S. J. v. F., (last point), 3 D. G. J. 13; 
 
 (e) E., s. 92; I., ami, s. 53; expld., Mackenzie v. Bent, 28 L. T. N. S. 486, 
 B. v. S., p. 847; and see T. v. S., p. esp. 487 a, /. 12-17; Smith v. Pilgrim, 
 226 /. 6, 236 /. 20-22. L. R. 2 C. D., esp. p. 134; Tempest r. 
 
 (f) E., s. 92 (fin); I., amt., s. 53 Craven, L. R. 6 Ch. 70; Topham r. 
 (fin). Walker, L. R. 8 Ch. 614; Contra,Boon 
 
 (g) Stubbins r. Wilkinson, p. 68. r. Boon, (the reasoning in which was 
 (/i) Abbot v. Pom/ret, 1 Bing. N. R. applicable rather to fraudulent dispo- 
 
 462. sition than to fraudulent preference), 
 
 («) Thayer v. Lister, 30 L. J. Ch. 41 L. T. N. S. 42. 
 433-4. ("0 Totnkins v. Saffery, L. R. 3 Ap. 
 
 225. See ante, p. 591 (/).
 
 596 PRIORITY OF BANKRTCY- AND WINTDG-UP- -CREDITS. 
 
 interested in the debt (a)), is essential to the displacement 
 of the preference (b), even though the preferred creditor 
 knew the debtor to be hopelessly insolvent (c), (unless he 
 and other creditors had agreed to postpone the considera- 
 tion of the debtor's affairs for a period unexpired when the 
 preference was given (d)); and though he had discussed the 
 latter's position with him and another creditor (c); and 
 though he was a relative of the debtor (e), (in which case, 
 indeed, a slighter request than in other cases seems suffi- 
 cient to negative spontaneity (f))', and though Favouritism 
 was one of the debtor's motives (g) ; and (it seems) though 
 the debtor was a Company, and the creditor one of its 
 Directors (h) ; and though the preference was effected by a 
 Registered document (i); and though the period from the 
 time when the preference was asked for to the time when it 
 was given was considerable (j) (unless it was so long as to 
 imply abandonment of the request (k)). But the reason for 
 holding spontaneity to be necessary seems to be merely (I) 
 because it is the usual accompaniment of favouritism, which 
 latter is the essence of preference, and therefore, pressure 
 by the creditor does not prevent the displacement of the 
 preference when favouritism (either to the creditor (w) or 
 to the debtor himself (»)) was, and the pressure was not, 
 the cause of the preference. And spontaneity is not 
 necessary if the creditor suggested a fraud by which the 
 preference was rendered possible (o); nor (perhaps) 
 
 (a) Belcher v. Jones, 2 M. & W. 258. contra, Gaslight I. Co. v. Terrell, L. R. 
 
 See also ante p. 591 (/"). 10 Eq. 168. And see Syke's case, L. 
 
 (6) Authorities cited ante, p. 595 R. 13 Eq. 255. 
 
 (k, in), and in this page (a). (i) Belcher v. Priltie, 10 Bing. 408. 
 
 (c) S. v. P., T. r. W., (last point). (j) M. v. B. 
 
 (tf) Suggested, T. r. If'., p. 621. (k) Conceded, M. v. B. 
 
 (e) B. v. P. (0 Accordingly, Bolland r. Cherry, 
 
 (f) B. v. P., p. 420, /. 11-13. L. R. 7 Ch. 24. 
 
 (g) Authorities cited ante p. 592 (i). (m) Authorities ante, p. 592 (c). 
 (/<) According to Poole's, Jackson's, & (n) Authorities cited ante, 592 (_;'). 
 
 White's case, L. R. 9 C. D. 322, and (o) Reader r. Wngley, L. R. 20 Eq 
 
 Habersham $ case, (as to the items 763. 
 sxcept the £97 10s.) L. R. 5 Eq. 287:.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 597 
 
 if the preference embraced a class of creditors (a). 
 
 Seventhly: Bankruptcy (b)-, and Liquidation (c)-, -cred- 
 itors are entitled to priority over any disposition (i) which 
 the debtor may have made, even (in cases falling under the 
 English statute) before 1870 (d); but only if, when he made 
 it, he was a Trader (e) ; and not if he made it for money or 
 money's worth to (or for) one who was (in the commercial 
 sense) a Purchaser or Incumbrancer and who acted in good 
 faith (f)\ nor if it was a Settlement on his Marriage (b); or 
 was an Insurance on his life, expressed to be for his wife 
 and children, or any of them (g); or was a disposition for 
 his wife or children of property which had, since his 
 marriage, accrued to him in right of his wife (h) ; nor if, 
 since he made it, ten years elapsed before the earliest 
 transaction which would be overreached (h) under the 
 second canon (i); nor if, when he made it, he was able (11) 
 to pay all his debts without resorting to the property 
 comprised in it (h), or to any such interest in that property 
 as he then undertook to redeem for the disponee's benefit 
 (j), and two years afterwards elapsed before the earliest 
 transaction which would be overreached (h) under the 
 second canon (*); nor if (in case of an Irish bankruptcy) it 
 was made before 1873 (k). 
 
 And a Purchaser from the Assignee in an Irish Bank- 
 
 Seventh: Vol- 
 untary Settle- 
 ment. 
 
 (I) The terra in the Act is " Settlement," hut it is defined to include " any 
 conveyance or transfer of property." 
 
 (II) The burthen of proving this ability lies (h) on those who derive under 
 the settlement. 
 
 (a) Sd., Tomkins v. Saffery, L. R. 4 
 C. D. 561, hut on appeal this point was 
 not mentioned, but expressions were 
 used importing that spontaneity would 
 be necessary. 
 
 (6) E., s. 91; I., amt., s. 52. 
 
 (c) E., s. 125 (5). 
 
 (d) 32-33 Vic.,c 83, s. 2, 20; inter- 
 preted in Dawson v. Dawson, L. R. 19' 
 Eq. 433. 
 
 (e) E., s. 91; I., amt., s. 52. For 
 the kinds of traders, see ante, E., sch. 
 
 (f) E., s. 91; I., amt., s. 52; inter- 
 preted in Hillman r. Pumfrey, L. R. 10 
 
 C. D. 622, which overrules Doble v. 
 Doble, 38 L. T. N. S. 183. 
 
 (g) 33-34 Vic, c. 93. 6. 10; inter- 
 preted in Holt v. Everall, L. R. 2 C. 
 
 D. 266. 
 
 (h) E., s. 91; L, amt., s. 52. 
 (i) Stated ante, p 566 («)-7 (b). 
 (j) Huxtable r. Conibeer, L. R. 2 C. 
 D. 54. 
 (fc) I. amt., s. 3, 52 (in),
 
 598 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 ruptcy (a) or Insolvency (a) is entitled to priority over all 
 dispositions (i) which the debtor, "when in insolvent 
 circumstances," may have made "to any of his children or 
 to any other person" (a), if the sale was directed by the court 
 (a), unless the disposition was made on the Marriage of any 
 child of the debtor (a), "or" for value (a). 
 Eighth: Con- Eighthly: Bankruptcy (b)-, and (no doubt) Liquidation 
 on aC Wi?e S or tle ip)-, -creditors, are entitled to priority over any contract to 
 Children. dispose of any money or property for his [intended?] wife 
 
 or children which the debtor may have made (b) in consi- 
 deration of a subsequent marriage (b) whether he made it 
 by deed (b) or otherwise (&) ; and though (in cases falling 
 under the English statute) he made it before 1870 (d) ; but 
 only if he was then a Trader (e) ; and not if (in cases falling 
 under the Irish statute) he made it before 1873 (f)\ and 
 not if it was a contract to pay money without reference to 
 any specific fund (g) ; and not against any interest which 
 he had in money or property when he married (b), or which 
 afterwards was (under an authority to distribute a fund 
 amongst a class of which he was one) meted out to him in 
 displacement of a commensurate interest belonging to him 
 when he married (b); or which he had (or afterwards 
 acquired) in right of his Wife (b) ; or which was paid or 
 transferred in pursuance of the contract before the earliest 
 transaction which would be overreached (b) under the 
 second canon (i). 
 Ninth: Judg" Ninthly: Bankruptcy- &c. -creditors are entitled to 
 priority over a charge created (j) by a Judgment recovered 
 
 (a) I., s. 314. the kinds of Traders, see E., sch. 1. 
 \b) E., s. 91; I. amt., s. 52. (f) I. amt., s. 3, 52. 
 
 (c) Assumed in Bishop v. Tonnies, L. (</) B. v. T. But Bolland v. Clint, 
 !R. 8 Ch. 718, hut not literally express- (ante, p. 544), was not decided on this 
 ed in E., s. 125 (5). enactment at all. 
 
 (d) Implied, Dawson r. Dawson, L. (h) Re Andrew's trusts, L. R. 7 C. 
 R. 19 Eq. 433. D. 635. 
 
 («) E., s. 91; I. amt., s. 52. For (») Stated ante, p. 565 (fc)-8 (rf). 
 
 (j) Ante, p. 335 (a). 
 
 ment.
 
 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 599 
 
 within a year before the earliest transaction which would 
 be overreached (a) under the second canon (b). 
 
 And Bankruptcy-creditors in Ireland are entitled (c) to 
 priority over a judgment-mortgage (d) registered since 
 i st November, 1857 (e), unless three months since the 
 registration elapsed before the filing of the petition (c). 
 
 And Bankruptcy (f)-, and (in Ireland) Insolvency (f)-, 
 -creditors are entitled to priority over a judgment in any 
 action when the bankruptcy is English, or any personal 
 action when it is Irish (f), if the judgment be founded on 
 a warrant (f) cognovit (g) consent-order (g) or the like (g), 
 or on a document made to evade the enactment (h), unless, 
 within 21 days after the giving of it, either the petition is 
 presented (*), or the warrant cognovit &c. or document is 
 registered (j) in the prescribed (k) manner, or (when a 
 warrant is in question) judgment on it is signed (j) or 
 execution issued (j). And Bankruptcy- and Insolvency- 
 -creditors in Ireland are entitled to priority over any judg- 
 ment in any action not founded on a warrant &c. so regis- 
 tered (/), unless, within 21 days from the entering on it, 
 either the petition is filed (I), or the judgment registered 
 in the judgment-registry (/). And now, Warrants, Cog- 
 novits, and (in England) Consent-orders, are (under 
 circumstances) void, unless registered within 21 days (ni). 
 And Warrants, Cognovits, and Consents for judgment in 
 any personal action, in Ireland, given within two months 
 before the filing of the petition, are (under circumstances) 
 
 (a) 1-2 Vic, c. 110 (E.) end of S. 13; (h) Hurst v. Jennings, 5 B. & C. 650; 
 
 3-4 Vie., c. 105 (I), s. 22. modified Harmer v. Johnson, D. & L. 
 
 (6) Stated ante, p. 565 (Jt)-8 (rf). 39, 14 M. & W. 336. 
 
 (c) I., s. 331. (») Authorities in this page (f),'mtev- 
 
 (d) Explained ante, p. 335 {i,j). preted by E., s. 119, and I., s. 8. 
 
 (e) I., s. 5, 331. (j) Authorities cited in this pagef/). 
 
 (f) 3 Geo. IV, c. 39, (confined to the (*) By 9 Geo. IV, c. 39 (E.), 3. 1 ; 
 courtsat Westminster), s. 1,2, (exten- 6-7 Vic, 0. 66 (E.); 3-4 Vic, 0. 105 
 ded by 12-13 Vic, c. 106, s. 135, (I), s. 12; and as to Cognovits &c, 
 which is since repealed); 3-4 Vic, c 7-8 Vic, c 90 (I.), incorporated in I., 
 105 (I.), s. 13, (extended or super- s. 335. 
 
 seded by I., s. 334). (0 I., s. 336. 
 
 (g) 9 Geo. IV., c 39 (E.), s. 3; I., (m) 32-33 Vic, c 62, (E.), s. 2, 26- 
 s. 335. 27; I., s. 334.
 
 600 PRIORITY OF BANKRTCY- AND WINDG-UP- -CREDITS. 
 
 Tenth: Quasi- 
 Partnership. 
 
 Eleventh: Ex- 
 tent, in Ireland. 
 
 Twelfth: De- 
 fect in the 
 Proceedings in 
 Iceland. 
 
 Last: Grounds 
 of priority dis- 
 cussed in pre- 
 vious chapters. 
 
 void (a). But "void" seems, by analogy to the decisions 
 (b) on other enactments, to mean "void against bank- 
 ruptcy- (&c.) -creditors." 
 
 Tenthly: Bankruptcy (c)-, Insolvency (c)-, Liquidation 
 (d)-, Composition (c)-, and Administration (c)-, -creditors, 
 (for value in money or money's worth) of a trader, are 
 entitled to priority over the claims of one who has lent him 
 money {c) on a written contract that the lender should 
 receive interest varying with the profits, or a share of the 
 profits (e) ; and over one from whom he has, in consideration 
 of a portion of the profits, purchased the goodwill of the 
 business (f) ; and over any security which either may have 
 on the assets for these claims (g). 
 
 Eleventhly : A Purchaser under a Bankruptcy or Insol- 
 vency in Ireland is entitled to priority over any Extent (h), 
 which, since the commencement of the bankruptcy or of 
 the insolvent's imprisonment, has been made for a debt 
 originally due from the bankrupt or insolvent upon a 
 contract made with- or in trust for some other person than 
 him who sued out the extent ; if the court ordered the sale (i). 
 
 Twelfthly: Such a Purchaser is also entitled to priority 
 over any claim by the bankrupt or insolvent, or those 
 deriving under him, founded on any Defect in the Pro- 
 ceedings (j). 
 
 Finally: Bankruptcy-, Liquidation-, and Winding-up-, 
 -creditors are entitled, under the circumstances already 
 detailed, to priority over dealings intended or tending to 
 embarrass creditors (k); over unregistered dealings with 
 corporeal personal chattels (/); and over claims to the 
 ownership of chattels in the order or disposition of the 
 debtor (n). 
 
 (&) A process for levying Crown- 
 debt. 
 
 (i) I., s. 315. 
 
 0) I., s. 323. 
 
 (*) Ante, p. 539 («)-61 (a), 
 
 (/) Ante, p. 512-20. 
 
 (m) Ante, p. 521-35. 
 
 (a) I., s. 333. 
 
 (6) See ante, p. 408 (*); Bryan v. 
 Child, 5 Ex. 369 . 
 
 (c) 28-29 Vic, c. 86, s. 5. 
 
 (d) Probably implied. 
 
 (e) 28-29 Vic, c. 86, 8. 5, 1. 
 
 (f) s. 5, 4. [Ba. 86. 
 
 (g) Mucarthur r. Ramsden, 40 L. J.
 
 601 
 
 CHAPTER LXIII. 
 
 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT CONVEYANCES. 
 
 The third and last branch of the principle stated in ch. lx 
 depends also on statute (a), namely, that one dealt with for Value 
 (b) is entitled to priority over any dealing (a) (or part thereof (c)) 
 previously made under circumstances conferring a lesser moral 
 right than his own (a) (i); and this, whether he seeks Possess- 
 ion (d), or a Declaration of his priority (e), or a Conveyance (/) ; 
 and though the property be Copyhold (g) ; and though the 
 disponor's interest be an estate-Tail {h) t or a Chattel interest (/) ; 
 and though the disponor be a Married Woman (/), or a Corp- 
 oration {k) ; and though the preferred transaction be merely a 
 Contract (/) (n), even one informally made under a Power 
 
 (i) The postponed disponee has no claim against the price received for the 
 subsequent dealing (m), though he was innocent of the fraud (m), and not- 
 withstanding the doctrine stated above (n). 
 
 (n) A Vendor cannot enforce such a contract (o) as would be preferred 
 
 (a) 27 El. c. 4 (hereinafter referred 
 to as "E.") s. 12; 10 Ch.I (Ir) sess. 2, 
 c. 3 (hereinafter referred to as " I. ") s. 1 . 
 
 (6) As to what constitutes Value 
 see ante, p. 552. 
 
 (c) A fortiori from ante. p. 539 {I). 
 
 \d) Doe v. James 16 Ea. 212. 
 
 (e) Pearson r. Stephens L. R. 3 C. 
 D. 807. 
 
 (J) Authorities below {I), 
 
 (g) Doe v. Bottriell (Settlement void 
 against Purchaser) 5 B. & Ad. 131 ; 
 approved, 1 M, & Cr. 17; and see 8 A. 
 & E, 650. 
 
 (h) Cormickv. Trapaud, 6 Dow. 60; 
 Doe v. Rolfe 8 A. & E. 650; TarUton 
 v. Lhldell 17 Q. B. 390. 
 
 (i) Saunders v. Dehew (2d point) 2 
 Vern. 272. 
 
 (j) Currie v. Nind (3d point) 1 M. 
 & Cr. 25 I. 3. 
 
 (k) E., s. 1, 2 ; I. s. 1. 
 
 (I) Buckle v. Michell 18 Vez. 101; 
 C. v. N. (1st point); WUlats v. Busby 
 5 Bea. 193 ; sd., Price v. Jenkins L. 
 R. 4 C. D. 483 (affd. on another point) ; 
 sd., Tovniend v. Tokcr L. R. 1 Ch. 446. 
 
 (m) Pukertoft v. Pulvertoft 18 Vez 
 93 ; Daking v. Whimper 26 Bea, 568 ; 
 sd., Tovmend v. Tokcr L. R. 1 Ch. 
 460-1. 
 
 (n) Ante p. 331 (/). 
 
 (o) Smith v. Garland 2 Mer. 123 ; 
 Johnson v. Legard 1 T. & R. 294 ; 
 modified, Peter v. Nieholls L. R. 11 
 Eq. 391, which qucere, having regard 
 to the doctrine in J. v. L., and in the 
 case next cited. 
 
 Rule. 
 
 Applicability 
 
 of the Rule. 
 
 Remedy 
 
 sought. 
 
 Tenure. 
 
 Disponor's 
 
 Interest. 
 
 Disponor's 
 
 Status. 
 
 Nature of the 
 
 Preferred 
 
 dealing. 
 
 76
 
 G02 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT &C. 
 
 Proportion of 
 property com- 
 prised in it. 
 Nature of 
 preferred 
 property. 
 Nature of 
 preferred 
 Interest. 
 
 (a) and deriving its efficacy from the rule (b) that non-compliance 
 with the formalities prescribed by a Power does not vitiate a dis- 
 position made under it for value; or be a Covenant for freedom 
 from Incumbrances (c) ; or be a Transmission (if by Irish Judg- 
 ment-mortgage (d), or, perhaps, by Recognizance (e)); and though 
 he who makes it derives under him who made the impugned 
 dealing (for example, as heir (/)), unless the only ground for 
 impugning the latter be that it was gratuitous (g) ; and though 
 the property comprised in the preferred dealing be described 
 (i) in general terms only (//) ; and though a new Rent Profit 
 or commodity be created by it (i) ; and though the interest 
 derived under it be terminable (as in Tail (/), or for Years (/)); 
 or be derived by way of Mortgage (/) (including Deposit 
 
 under this rule, but must repay the deposit {7c). But the courts will not 
 restrain one who has made a disposition from displacing it under this enact- 
 ment (I), though they be applied to while he is still unbound by any contract 
 to do so (m). However, a declaration in an earlier disposition, that if the 
 disponor should defeat it for value he will hold the price, &c. on trust for 
 the persons whose interest he will have displaced, would probably be 
 binding; and, by breach of a covenant not to displace it, he would become 
 liable to pay damages (n). 
 
 (i) A disposition of " all " the property of the disponor is construed (o) 
 as meant to include property which he has previously parted with by a 
 disposition displaceable under the enactment, — a construction which has 
 been disapproved (^>), but which may, in favour of a purchaser ignorant of 
 the previous disposition, be generally supported on the ground that he would 
 understand all that property to be included of which the disponor appeared 
 to be owner. 
 
 (a) Currie V. Nind (1st point) 1 M. 
 & Cr. 17. 
 
 (6) Explained, Sugden on Powers 
 (8th Ed.) 533, esp. (Te). 
 
 (c) BurrelVs case (2d. point) 6 Co. 
 72a. 
 
 (d) 13-4 Vic. c. 29, s. 8. 
 
 (e) Garth v. Enfield Sgt. Bridg. 22, 
 questioned, 6 D. G. M G. 519. 
 
 (/) B's case (1st point) 6 Co. 72a, 
 approved 6 Bli. 31. 
 
 (g) Leiuis v. JRees (2d point) (heir) 
 3 K. & J. 132 ; ParJcer v. Carter 4 
 Hare 410 I. 8-9 ; Doe v. Lewis (last 
 point) (Wife taking her chattel inter- 
 est by Survivorship) 11 C. B. 1035 ; 
 Doe v. Rusham (Devisee) 17 Q.B. 723 ; 
 
 expressly overruling (in p. 732-3) ; 
 Jones v. Whittaker (Deed of Gift) 
 Longfield & T. 141. 
 
 {h) Stone v. Yanheythuysen 11 Hare 
 126 
 
 (i) E.,s. 1-2, I., s. 1. 
 
 ( j) Dolphin v. Aylward (Settlement 
 void agt. Mortgagee) L. R. 4 H. L. 
 499. 
 
 (k) ClarJcev. Willott L. R. 7 Ex.313. 
 
 (I) Pulvertoft v. Pulvertoft, 18 Vez. 
 84. 
 
 (m) P. v. P., see p. 87. 
 
 (n) Sd., P. v. P., p. 91 I. 30. 
 
 (o) S. v. V. p. 130. 
 
 {p) Sugden on Vendors (14th Ed.) 
 713 (I), 715 (t).
 
 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT &C. COS 
 
 (a)), Lease (l>), or otherwise; and though it be legal (c), or merely 
 beneficial (d) (whether the law (e) would transfer the legal 
 estate to it (/) or not (d)) ; and though, by it, the legal estate 
 was acquired from a trustee for the postponed parties (g) 
 and with knowledge of the trust (g) ; and though the impugned 
 dealing (however honest (/i)) was known to the preferred 
 disponee (/), and was but a beneficial interest (J) (the postpone- 
 ment of which interests is generally (k) prevented by notice (/)), 
 unless an indemnity against it had been given him (?//) ; and 
 though an Action for establishing the impugned dealing was 
 pending (u) to the knowledge of the preferred disponee (o) ; 
 and though the impugned disposition was meant to provide {p) 
 (even it seems (/), by way of mortgage (i)) for the disponor's 
 debts ; and (it seems) though it was made under the Court (q) ; 
 and though the disponor did not (so far as it affected the legal 
 estate) make, but procured it (as, from one from whom he had 
 
 Preferred 
 
 interest 
 acquired from 
 Trustee. 
 
 Action 
 pending. 
 
 Nature of the 
 
 impugned 
 
 dealing. 
 
 (i) Consequently the section (?•) respecting Mortgages can only be meant 
 to shew that a right to redeem is not to be treated as a Power of Revocation. 
 See below, p. 608 (b). 
 
 (a) Edc v. Knovies (Settlement void 
 agt. Mortgagee) 2 Y. C. Ch. 172 ; see 
 Lister v. Turner (same) 5 Hare 281. 
 
 (b) E., s. 1-2 ; I., s. 1 ; Cross v. 
 Fausterditch (as to Power of Revoca- 
 tion) Cro. Ja. 1 80 ; Goodright v. Moses 
 2 Bl. 1019 ; see Upton v. Basset Cro. 
 El. 445. 
 
 (c) Doe v. James 16 Ea. 212. 
 
 (d) Buckle v. Mitchell IS Vez. 100; 
 George v. Milbanke 9 Vez. 190; see 
 1 Mer. 638-9. 
 
 (e) Ante, p. 437 (a)— 441 (I). 
 (/) E., s. 1, 2 ; I., s. 1. 
 
 (#) Currie v. Nind (4th point) 1 M. 
 & Cr. 17. 
 
 (h) Re Barker 44 L. J. Ch. 489b; 
 DOB v. MANNING 9 Ea. 58. 
 
 (i) Buckle v. Mitchell 18 Vez. 112; 
 Chapman v. Emery Cowp. 489b ; D. 
 v. M. ; Gooch's case 5 Co. 60 ; sd., r. 
 
 B. For other authorities see Sug. 
 Vend, 713 (/), 714 (t, u), 720 (a). 
 
 (j) Bv. M. p. 112. 
 
 {h) Ante, p 401-2, 416-22. 
 
 (/) Defined ante, p. 416, 443-62. 
 
 (m) Jennings v. Sclleck 1 Vera.. 
 467 ; White v. Stringer (or, Ld. 
 Tenham's case) 2 Lev. 105. 
 
 (n) Metcalf v. Pulvertoft 1 V. & B. 
 180, as expld. in 2 V. & B. 200, and 
 understood in Sug. Vend. 721 {d), see 
 ante, p. 541 (c). 
 
 (o) As in M. v. P. 
 
 (p) Sd., Leech v. Leech 1 Ch. Ca. 
 249 (an.); contra, sd., 3 Atk. 412 I. 
 20; and, as to creditors, see ante, p. 
 546 (ry)-547 (/). 
 
 (<}) See Martin v. Martin 2 R. & 
 M. 507 ; and observations thereon in 
 Hunt on Fraudulent Conveyances 189,. 
 (r) E., s. 6 ; I., s. 5.
 
 604 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT &C. 
 
 Nature of the 
 impugned 
 interest. 
 Impugned 
 disponee. 
 Conditions of 
 the rule. 
 Subject- 
 matter. 
 
 Nature of the 
 
 preferred 
 
 dealing. 
 
 contracted to purchase (a)); and though it was bolstered up by 
 any pretence, colour, feigned consideration, or expressing of a 
 use (b) ; and though it was a Disentailment (c) (i), or a Lease 
 (b) ; and though the interest derived under it was but an 
 Incumbrance (p) ; and though (at least in case of actual fraud) 
 he to whom it was made was the King (d). 
 
 But this enactment applies only to Hereditaments (e), 
 including growing Trees (/), and (perhaps) heritable Annuities 
 (g), (and therefore does not apply against dispositions which he 
 who made the preferred dealing procured by paying Money {h), 
 unless he already had the beneficial interest (/)) ; and only so 
 far as the preferred dealing extends (/), and was intended to 
 take effect (k) (of the absence of which intention inadequacy 
 of consideration affords some (k) but not conclusive (/) evi- 
 dence); and only so far (m) as it (n), and not merely some 
 dealing derived under it (o), was made for Value (the fact that 
 it was made in discharge of a moral obligation (p), or by Will (q), 
 
 (i) A "disentailing deed, displaced under this enactment, bars, never- 
 theless, the issue and those whose estates he behind the estate-tail ; or at 
 least, a Common Recovery had that effect (c). 
 
 (a) Stone v. Vanheythuysen 11 Hare 
 130. Att.-Gen. v. Newcastle 12 C. & 
 F. 402 has been referred (in Sug. 
 Vend. 719) to the same ground. See 
 ante, p. 541 (/), and (i). 
 
 (b) E.,s. 2; L, a. 1. 
 
 (c) Ante, 540 (o), 600 (A). 
 
 (d) See Magdalen coll. case 11 Co. 
 74 a-b. 
 
 (e) E., s. 1 ; I., s. 1 ; Jones v. 
 Croucher 1 S. r. St. 315 ; sd., I Hare 
 473. 
 
 (/) Hatton v.*Necde Bull. N. P. 90. 
 
 (g) I have not found any authority 
 on this point : See ante, p. 43 I. 4-5. 
 
 (h) Gorge's case, cited Cro. Cha. 
 550 ; sd., Drew v. Martin 2 H & M. 
 133 I. 10 ; Reasoning and authorities 
 in Barrack v. McCulloch 3 K. v. J. 
 116-7 ; Involved also in the reasons 
 given for the decision in Barton v. 
 Vanheythuysen 11 Hare 126. 
 
 (i) Ante in this page (a). 
 
 \j) Dolphin v. Ayhuard L. R. 4 
 H. L. 499-500 ; Puhertoft v. Pulver- 
 toft 18 Vez. 94 ; Croker v. Martin 
 1 Dow, N. S 15 ; Sug. H. L. 148. 
 
 {k) Roberts v. Williams 4 Hare 131 ; 
 Doe v. Routledge Cowp. 712; admit- 
 ted, 16 Ea. 213 {med.) 1 V. & B. 184 
 I. 6-7. 
 
 {1) Bullock v. Sadleir Amb. 767. 
 
 (m) Dolphin v. Aylward L. R. 4 
 H. L. 499-500. 
 
 (n) Upton v. Basset Cro. El. 445 ; 
 sd., Taylor v. Jones 2 Atk. 600 I. 17. 
 
 (o) Doe v. Rusham 17 Q. B. 723. 
 
 (p) Beaumont v. Needham 1 And. 
 233. 
 
 (q) Boughton v. Boughton 1 Atk. 
 625 ; Fletcher v. Fletcher 4 Hare 67 ; 
 see Lear v. Ashivell 3 Swan. 411 ; 
 Villiers v. Beaumont 1 Vern. 100.
 
 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT &C. G05 
 
 or subject to the reservation of a reversion (a), being insufficient); 
 and only against a dealing intended (b) or tending (c) to defraud 
 the subsequent disponee or subsequent disponees in general, or 
 being (under circumstances (d)) gratuitous (e) (i), or revocable 
 under a Power (u) which the disponor had, under certain 
 circumstances (d), reserved. 
 
 But the rule does not apply in favour of one who merely 
 agreed for an interest different from that which the disponor 
 really had (/). And it does not apply in favour of a trans- 
 mittee (g), whether by Bankruptcy (g), by Marriage (/*), by 
 Judgment (/) (though confessed (J) and therefore partaking of 
 the nature of a dealing {k) and though constituting a charge on 
 property (/)), or (no doubt) by any other means, save those 
 referred to above (/), unless the only ground for impugning the 
 earlier dealing be that it was subjected to a power of Revoca- 
 tion {in). And, as regards the legal estate, it does not apply 
 in favour of a mere Depositee of deeds (p), although he may 
 
 Notice of the 
 
 impugned 
 
 interest. 
 
 Exceptions to 
 the rule. 
 Interest which 
 the disponor 
 had not. 
 Transmission, 
 
 Deposit, 
 
 (i) Yet a covenant that if a hereditament be sold the Purchase-money 
 shall be paid to trustees to hold for the persons whose interest are displaced 
 by the sale is postponed as completely as the deposition itself (?i). 
 
 (n) A Power of Revocation is (independently of this statute) equivalent to 
 an actual revocation so far as to render the land of the king's debtor 
 (conveyed away subject to the power) liable for the debt (o). 
 
 (a) Upton v. Basset Cro. El. 445. 
 
 (6) E., s. 4, 6; I., s, 3, 5. For 
 circumstances evidentiary of this in- 
 tention see below, in this chapter. 
 
 (c) That this is probably suffi- 
 cient, see the analogous case, ante 
 p. 542 (d). 
 
 (d) Stated below, in this chapter. 
 
 (e) For what is deemed Value see 
 ante, p. 552-5. For the circumstances 
 under which each part of the subse- 
 quent dealing is presumed to have 
 been stipulated for see ante, p. 556 («). 
 
 (/) Co. Litt. 3 b ; Vin. Ab. Fraud 
 (i) 2 ; Sug. Pow. 651. 
 
 (g) Sd., r. Wood L. R. 7 Ch. 307, I. 
 8-11. 
 
 (h) Doe v. Lewis 11 C. B. 1035. 
 
 (i) Beavan v. Oxford (2d. case) 
 
 (2d. point) 6 D. G. M. G. 507. 
 
 (j) Dolphin v. Aylward (2d. point) 
 4 H. L. 486, which seems to overrule 
 Girling v. Lowther 2 Rep. in Ch. 136 
 expld. 11 Hare 131-2 and Garth v. 
 Enfield Sgt. Bridg. 22, expld. ib. 132, 
 unless the last can be referred to the 
 principles mentioned in this page (m). 
 
 (k) See ante, p. 399 (/t)-400 (c), 
 and 400 (i), 410 {I). 
 
 (I) Ante, p. 599 (d, e). 
 
 (m) G. v. E. (Recognizance) expld. 
 6 D. G. M. G. 528, but questioned ib. 
 519 ; Tarback v. Marbury (Judgment) 
 2 Vera. 511. 
 
 (n) Evelyn v. Templar 2 B. C. C, 
 148; 18 Vez. 91, 93, 112. 
 
 (o) Jenk., 2d. cent., ca. xix. 
 
 (p) Kcrrison v. Dorrien 9 Bing. 76,
 
 606 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT &C. 
 
 Value. 
 
 Meritorious 
 consideration. 
 
 Assent to the 
 dealing. 
 
 Points sub- 
 ordinate to the 
 rule. 
 
 Circumstances 
 evidentiary of 
 intention to 
 defraud Pur- 
 chasers, &c. 
 
 obtain the advantage of the deposit by appropriate 
 proceedings (a). And it does not apply against one who 
 gave Value for the impugned dealing (b), or who acted in 
 reliance on it (c) or gave value for an interest derived 
 under it (d) before the subsequent dealing took place (e), 
 if (in each case) the circumstances be such (f) that he 
 would be protected against the disponor's creditors, unless 
 he had notice (g) of the intention to defraud subsequent 
 disponees (h), or of circumstances from which a tendency 
 to defraud them is presumed (i). And it does not seem to 
 displace a disposition made to the disponor's Child (j) ; or 
 for a Charitable purpose (k), (at least if favoured by the 
 legislature (k)) ; and it has been thought (I) not to displace 
 a limitation followed by one which falls within the 
 exceptions ; nor can it apply in favour of one who assented 
 to (m), or acquiesced in (in), the impugned dealing; much 
 less in favour of the disponor himself (n). 
 
 The circumstances from which an intention or tendency 
 to defraud subsequent disponees for value is presumed 
 seem to be chiefly those by which a representation is 
 implied that the disponor had not made such a disposition 
 as that which is impugned (o). And such a representation 
 is implied from his retention of the Title-deeds (p), and 
 from his omission to communicate the impugned dispo- 
 sition to the party to whom it was made (q). An intention 
 to defraud purchasers is also inferred from a provision in a 
 
 (a) Authorities cited ante, p. 603 (a). 
 
 (6) E., s. 4, 6; I., s. 3; ante, p. 543 
 (a) -544 (j) ; and see, as to what con- 
 stitutes Value, ante, p. 552-555 (p). 
 
 (c) Ante, p. 545 (a-c). 
 
 (d) Ante, p 545 \d-f). 
 
 (e) O' Donovan v. Rodgers, 7 Tr. Ch. 1. 
 
 (f) Stated ante, p. 543 (a)- 545 (f). 
 
 (g) Explained ante, p. 416, 443 (g), 
 544 (h-j) and n. (i, II). 
 
 (/») E., s. 4: I., s. 3. 
 
 (i) O'Connor v. Bernard, 2 Jones 
 654; Hunt on Fraudulent Convey- 
 ances, 69, 128. 
 
 (j) Ante, p. 545 (<;)- 546 (m). 
 
 (fc) Ante, p. 546, (o, p). 
 
 (/) Ante, p. 547 (</, h, i). 
 
 (m) Ante, p. 548 (a, b). 
 
 (n) Rand v. Cartwrighl, I Ch. Ca. 
 59; and see Hunt, p. 211 (t); and 
 ante, p. 548 (c). 
 
 (o) Cracknall v. Janson, L. R. 11 C. 
 D. 22. 
 
 (p) Lloyd v. Attwood, 3 D. G. J. 622;, 
 suggested Perry-Herrick v. Attwood, 2 
 D. G. J. 21. 
 
 (?) C. v. J., p. 21, /. 28.
 
 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT &C. 607 
 
 disposition that it, or some limitation in it, shall only 
 operate if the disponor part with the property for value (a) ; 
 and (perhaps) from some of the circumstances (b) from 
 which an intention would be inferred to defeat creditors. 
 
 The fact that the impugned dealing is Gratuitous (c) 
 causes its displacement by this rule (d), though it was 
 made with honest intentions (d), or even in discharge of a 
 moral obligation (<?); and though a tenant-in-tail made it 
 in favour of those whose remainders he, at the same time, 
 barred (f) ; and though the legal estate passed by it (d) ; 
 and though the preferred disponee knew of it (g); and 
 though the circumstances occur which have been already 
 (h) mentioned as not preventing the general application of 
 the rule ; but not if the circumstances occur which have 
 been (i) mentioned as equivalent to value; nor if he who 
 made the subsequent dealing was different from, while 
 deriving under, him who made the impugned dealing (j) ; 
 nor if the subsequent disponee obtained an indemnity against 
 the impugned dealing (k) (especially if what was impugned 
 was a limitation which a tenant-in-tail could bar (I)). 
 
 In conclusion : A Revocable or alterable disposition is 
 displaceable under the enactment (m) (i) though it be alter- 
 
 (i) A power by which one person authorizes another to sell all the land of 
 the former is construed as not extending to land of which the former has already 
 made a disposition displaceable by subsequent purchasers (n). 
 
 (a) Phipps v. Ennismore, 4 Russ. 131. 
 
 (b) Stated ante, p. 548 (d)-551 (it). 
 
 (c) As to what dealings are deemed 
 gratuitous, see ante, p. 552-5 (p). 
 
 (d) 27 El. c. 4, s. 1, 2, as interpreted 
 in Doe v. Manning, 9 Ea. 59 ; Douglasse 
 v. Waad, 1 Ca. in Oh. 100 /. 32-5; 
 Trowell v. Shenton, L. R. 8 C. D. 324- 
 5; Currie v. Nind, (in which there was 
 no moral obligation or meritorious con- 
 sideration, because the wife was set- 
 tlor; and no value given by the hus- 
 band, because she wa6 empowered to 
 make the disposition without his con- 
 currence), 1 M. & Cr. 17. 
 
 («) See ante, p. 555 {g-p)- 
 
 (f) Cormick v. Trapaud, 6 Dow, 60. 
 
 Circumstances 
 under which 
 a disposition is 
 displaceable 
 because 
 Gratuitous. 
 
 Circumstances 
 under which a 
 disposition is 
 displaceable 
 because 
 Revocable. 
 
 (g) Pulvertoflv.Pulvertoft, 18Vez. 84. 
 
 (A) The circumstances which occur- 
 red in the cases of Settlements dis- 
 placed because gratuitous are those 
 discussed ante, p. 601 (d,e,f,g,h,ij,l,m), 
 602 (a,h,j,l,m,), 603 (a,b,c,d,g,h,i,j,n,o.g), 
 604 (a,c), 607 (d,ej,g). [p). 
 
 (t) Ante, p. 545 (a)-546 (m), 546 (o, 
 
 (j) Ante, p. 602 (s). 
 
 (k) White v. Stringer, (or Ld. Ten- 
 ham's Case), 2 Lev. 105; Jennings v. 
 Selleck, 1 Vera. 467. 
 
 (I) W.v.S. 
 
 (m) E., s. 5; I, s. 4. 
 
 (m) General Meat Sfc. Co. v. Bouffler, 
 40 L. T. N. S. 126. Cmpre. ante, p. 
 602 (i).
 
 608 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT &C. 
 
 able only under a power reserved to make, to an unlimited 
 extent, inconsistent partial dispositions, (as, mortgages (a), 
 or leases (b)), or (perhaps) to make slight alterations (c); 
 or be revocable only on trivial conditions (d), or on the 
 consent of some person selected for the disponor's 
 convenience (e); or only as from some future time (e); and 
 though it was made for Value (i); and though the power 
 was afterwards gratuitously (f) released or extinguished (g) 
 (for a gratuitous release has no greater effect than any other 
 gratuitous disposition (/;)). But it is only thus displaceable 
 if its revocable or alterable character arises from a power 
 reserved to the disponor (i) and exercisable at his pleasure 
 (*); and only as from the time when that power might be 
 exercised (j) ; and not if that power was merely an autho- 
 rity to charge a moderate sum (k), or to redeem (/) (unless 
 on payment of an absurdly small sum (w))» or was exer- 
 cisable only on serious conditions («), (as, that the property 
 should be sold and the proceeds be paid to trustees and 
 invested in a specified manner («)), or on the consent of a 
 person selected for the protection of the disponee (o) 
 
 (i) This seems to follow from the enactment (p) that the proviso for redemp- 
 tion in a mortgage is not to be treated as a power of revocation, and from the 
 rule (</) that a gratuitous disposition is postponed even when not revocable, and 
 was evidently the understanding of Ld. St. Leonards (r), and there is author- 
 ity indicating this («), but also authority of a contrary tendency (/). 
 
 (a) Tarbackv. Marbury, 2 Vern. 510. (i) E., 8. 5; I., s. 4. 
 
 (b) Lavender v. Blackstone, 2 Lev. 146. 0') Sd. B. y. T., Moo. 618 /. 23-5. 
 
 (c) This is so if the enactment be And see Adney v. Field, Amb. 654. 
 literally construed. (k) Jenkins v. Keymiss, 1 Lev. 150. 
 
 (d) Sd., Griffin v. Stanhope, Cro. Ja. (/) E., s.6; I.,s. 5; extended in Griffin 
 455. V. Stanhope, Cro. Ja. 454. 
 
 (e) Sd., Twyne's Case, 3 Co. 83b; (»») Sd. G. v- S.; r. Barker, 44 L. J. 
 Lavender v. Blackstone, (2d. point), 2 Ch.487. 
 
 Lev. 146, (4th point), 3 Keb. 526; sd., (n) Doe v. Martin, 4 T. R. 39. 
 
 Buller v. Waterhouse, T. Jo. 95, see (o) Banbury's Case, 2 Free. 8; Bul- 
 
 Bridg. 23. ler v. Waterhouse, T. Jo. 74. 
 
 (f) B. v. W.; Lee v. Colshill, (2d. (p) E., s. 6; I., S.5. 
 point), cited 3 Co. 83a. (q) Ante, p. 607 (d). 
 
 (g) Bullock v. Thome, (in which it (r) Sugden on Power3 (8th Ed.), 
 does not appear whether the extin- 644 pi. 5. 
 
 guishment was gratuitous) Moo. 615. («) See B. v. W. 
 
 (h) See ante, p. 607 (c). (*) 2 Lev. 147 (tin).
 
 PRIORITY OF PURCHASERS &C. OVER FRAUDULENT &C. 609 
 
 (especially if the impugned disposition was for value (a) 
 and the subsequent disponce knew this (a)); and not if, 
 before the making of the subsequent disposition, that 
 power had been validity (b), (or, perhaps, to the subse- 
 quent disponee's knowledge defectively (c)), exercised to 
 its full extent; or had been released for value (d) (unless 
 under circumstances under which the release itself would 
 be displaced (e)) ; or had expired (f) ; nor (perhaps) if the 
 subsequent disponee knew of the revocable disposition 
 
 (g) (0- 
 
 (i) In the Statute the revocable disposition is referred to as the "secret" 
 one, but in some cases (A), in which the subsequent disponee knew of it, that 
 circumstance was not relied on. 
 
 (a) Relied on in B. v. W.\ But it pressed in Sug. Pow. 645 /. 9-14; Sug 
 
 was for value in B's. Case; See Suj 
 Pow. 644 pi. 5. 
 
 (6) E., s. 5: I., s. 4; Sug. Pow. 645 
 pi. 8. 
 
 (c) See Sug. Pow. 645 pi. 8; and 
 see Cross v. Faustenditch, (2d. point), 
 Cro. Ja. 180. 
 
 (ef) According to the opinion ex- 
 
 Vend. 722 /. 4-8; and according to the 
 reasoning in Lee v. Cohhill, 3 Co. 83a. 
 (e) See ante, p. 600 (a)-607 (6), esp. 
 606 (o)-607 (6). 
 
 (f) Shelden v. Handbury, Moo. 757. 
 
 (g) Sug. Pow. 645 /. 4-5, and pi. 8. 
 (A) Bullock v. Thome, T. Jo. 94, see 
 
 /. 25-6; Doe v. Martin, 4 T. R. 39. 
 
 INxt. Shi. is App. 1.] 76|-
 
 APPENDIX. 
 
 [Being a reprint (with some verbal alterations) of an Article contributed by 
 the Author to the Law Magazine for Aug. 1870 (a). There do not appear to 
 be any later cases on the subject except the cases (6) already alluded to re- 
 specting the obligation of a Director &c. of a Company to register a Mortgage 
 made to him by the Company, and his postponement to the claims of others in 
 the event of his not doing so.] 
 
 PERSONAL EQUITIES AS OrERATING ON INDEFEASIBLE TITLES. 
 
 Very recently the flagrant injustice which may be Injustice of 
 worked by Parliamentary conveyances (that is, such con- feasftLe^tnies" 
 veyances as confer an indefeasible title) has been brought Generally, 
 prominently forward in Ireland by a decision of the Court 
 of Appeal there (c). There is reason to believe that such 
 mistakes as occurred in that case are not at all infrequent, 
 and as the violent changes which are threatened in so many 
 branches of our law render it probable that some measure 
 for conferring such titles may be introduced even into this 
 country, it is conceived that it must be highly useful to 
 discuss the doctrine which is to be found floating through 
 •our books respecting personal equities, with the view of 
 considering whether, if applied in such cases as Tottenham's 
 estate, it might not lead to a redress of the injustice there 
 committed ; not that it is conceived that any redress could 
 be had if the form of proceeding there adopted were 
 adhered to, nor that even if a Bill were filed the Court of 
 Appeal would alter the opinion which it there expressed ; 
 but that if a Bill were filed, the House of Lords would feel 
 bound — in case the line of argument which we have indi- 
 
 (a) 29 Law Mag., 210. 345; re Internalional Pulp Sf-c. Co., L. R. 
 
 (b) Valpy v. Chuplin, L. R. 7 Ch. 289 ; 6 C. D. 555 ; re South Durham I. Co., L. 
 Wynn Hall C Co., L. R. 10 Eq. 515; R. 12 C. D. 579. 
 
 re Native Iron Ore Co., L. R. 2 C. D. (c) Re Tottenham's Estate, 3lr.R. 528. 
 
 App. "I.
 
 cases. 
 Anon. 
 
 App. ii. PERSONAL EQUITIES, &C. 
 
 cated were adopted — to overrule the decision of the Court 
 below. Some time since it became the duty of the writer, 
 on being consulted in a case somewhat similar to that of 
 Tottenham's estate, to advise that his client, against whom a 
 Landed-Estates-Court-conveyance was attempted to be set 
 up, had a good ground for filing a Bill. The case was 
 afterwards settled, the other side yielding their unjust 
 claims. In the present article it is proposed, after stating 
 both cases, to consider, first, whether the claim made in each 
 was such as the Landed Estates Act was meant to bar; 
 secondly, whether, if so, that Statute might have been 
 evaded by the doctrine of personal equities ; and thirdly, how 
 far the section relative to the evidentiary effect of the con- 
 veyance affects the question. 
 Exemplified by M, the writer's client, held a farm on lease, and was in- 
 debted to N on a judgment. N turned his judgment into a 
 judgment-mortgage, pursuant (i) to the law which prevails 
 in Ireland, and then obtained a decree from the Landed- 
 Estates-Court that the lease should be sold to satisfy the 
 judgment. He (N) also obtained leave to bid at the sale — 
 a permission which the Landed-Estates-Court has power 
 to grant and does usually grant— and he was in fact the 
 only bidder at the sale, and bought the estate at a price 
 much under its value. He was enabled to do this by the 
 fact that the debtor and his friends abstained from bidding 
 at the sale, which they would have done had it not been 
 for representations made to them by the creditor of his 
 intention to hold the property merely as a security for his 
 demand, and to reconvey as soon as that should have been 
 satisfied. These were not representations of a mere floating 
 intention in his mind, but of that which he would certainly 
 
 (i) This is a peculiarity of Irish law. The judgment is not a lien or charge 
 on the land, but if an affidavit of the judgment, specifying that the creditor 
 wishes it to affect certain lands the property of the judgment-debtor, be filed 
 in the Registry of Deeds Office, such riling has the effect of mortgaging the 
 debtor's interest in the lands to the creditor, and thus gives the latter power to 
 sell in the Landed- Estates -Court; see ante, p. 335.
 
 PERSONAL EQUITIES, &C. App. iii. 
 
 do. They were made deliberately and frequently, not only 
 immediately before the sale, but long before it at a time 
 when the debtor could have found some one to buy in the 
 property for him at a much higher price than the creditor 
 paid for it, and with the intention of inducing him not to bid 
 or with the knowledge that it would have that effect. This 
 case raised two questions: (i) Whether the representation 
 was in itself binding, independently of the Landed Estates 
 Court Act: (2) Whether, if so, that Act deprived the party 
 of remedy. On the first question, the writer's opinion was, 
 that it was binding, but upon this point he will enlarge no 
 further here (a), because it is immaterial to the subject of 
 this article. The similarity between Tottenham's estate and 
 the case alluded to has reference only to the second of the 
 above questions. We shall better discuss it after stating 
 the facts of Tottenham 's estate. 
 
 In that case an estate was sold in lots in the Landed- Tottenham's 
 Estates-Court. One lot was purchased by Mrs. Reilly. Estate - 
 She, at the time of the sale, was in occupation of that lot 
 as tenant from year to year, and was, therefore, well ac- 
 quainted with its boundaries. The rental (i.e. the partic- 
 ulars) correctly stated the contents of the lot, and was in 
 other respects accurate. After the sale was over the con- 
 veyance was prepared. The description of the property 
 which it contained was framed in a manner which, in 
 England is generally condemned by conveyancers, viz., by 
 purporting to include simply such property as was, in a 
 map on the margin, coloured red. It is not uncommon to 
 insert a map on the margin of a deed, but where this is 
 done in well drawn deeds a clause is subjoined, stating 
 that in case of difference between the map and the written 
 description the latter shall prevail. Not only was this 
 omitted in the present instance, but the written description, 
 if any there were, was made subordinate to the map. Of 
 course the map was erroneous. The part therein coloured 
 
 (a) But see ante p. 81-2; 95 (sQ-lOO (f).
 
 App. iv. PERSONAL EQUITIES, &C. 
 
 red included a piece of land which belonged to an adjoining 
 proprietor. This proprietor had no opportunity of pro- 
 tecting himself, because, although the Act requires notices 
 to be served on adjoining proprietors, which had been duly 
 done, yet these notices were all correct, and did not include 
 the land in question. The mistake was made in this way. 
 Under the practice of the Court it was the duty of the 
 purchaser, by her solicitor, to have the conveyance drafted 
 with a map attached thereto, and to submit it to the officers 
 of the Court for their approval, and procure it to be exe- 
 cuted by a judge. In discharge of this duty the purchaser's 
 solicitor took the engrossment and map to the Ordnance 
 Survey Office that the map might be transcribed on the 
 engrossment. Mark what happened! The map was tran- 
 scribed by a public officer who had no interest in the 
 matter. The adjoining proprietor had not it in his power 
 to peruse the engrossment. The public officer made a 
 mistake in the boundary line and included part of the lands 
 of the neighbouring proprietor. Such mistakes (the writer 
 is informed on good authority) are frequent, and public 
 attention ought to be called to the fact, for it is seriously 
 proposed that the conveyancing of this country should be 
 conducted by means of registration with Parliamentary 
 titles. The purchaser was, at the time of the conveyance, 
 ignorant of the mistake, but long afterwards she was, as 
 one of the appellate judges expressed it, "informed of her 
 rights," and thereupon proceeded to enter upon the land 
 which, by mistake, had been conveyed to her. The ad- 
 joining proprietor brought against her an action of trespass, 
 and this was decided in her favour, on the ground that by 
 force of the Landed Estates Court Act the piece of land 
 included by mistake had become vested in her. This 
 decision has been impugned by a writer in the Solicitors' 
 Journal, but the present writer confesses he does not see 
 how it could have been different. Afterwards, on behalf of 
 the adjoining proprietor, a motion was made in the Landed
 
 PERSONAL EQUITIES, &C. App. V. 
 
 Estates Court that Mrs. Reilly might be directed to bring 
 her conveyance into Court in order that it might be recti- 
 fied. This motion was granted, and Mrs. Reilly appealed. 
 The Court of Appeal reversed the decision on the motion, 
 on the ground that when once the conveyance had been 
 executed the judge of the Landed Estates Court was fundus 
 officio, and had no power to interfere further between the 
 parties. So far the writer does not question the soundness 
 of their decision. But the question whether a Court of 
 Equity could grant relief on a bill being filed is a wholly 
 different one. It was not before the Court at the time, but 
 the appellate judges (no doubt with the laudable intention 
 of putting a stop to what they considered hopeless litiga- 
 tion) stated what their decision would have been if sitting 
 in Equity, with their reasons. They thought that the 
 indefeasible character which the Act confers on conveyances 
 from the Landed Estates Court would have precluded them 
 from giving any relief except, perhaps, in case of fraud — 
 under which term they apparently included wilful fraud 
 only, and not negligence — and that no such fraud as would 
 entitle a party to relief had been committed in this case. 
 It is here the writer feels compelled respectfully to question 
 the decision of the Court, and this brings us to the essen- 
 tial part of our discussion. 
 
 Now observe the points of resemblance between these Cases com- 
 two cases. In each there was a preliminary question, viz., P ared - 
 whether, if the conveyance had been merely an ordinary 
 conveyance from one landowner to another, there would 
 have been a remedy in Equity? In the Anonymous Case 
 the writer's opinion was that, if not on the ground of fraud, 
 yet on the ground of contract, the representation of inten- 
 tion constituted a sufficient ground for relief by way of 
 specific performance, and that the execution of the convey- 
 ance on faith of the representation was a sufficient (i) part 
 
 (i) This seems to follow from the doctrine that parol evidence is admissible 
 to prove that a deed absolute on the face of it was intended as a security for 
 money. In such cases there is a parol agreement to re-convey on repayment, and 
 the execution of the deed is a performance of the consideration.
 
 App. vi. 
 
 PERSONAL EQUITIES, &C. 
 
 Section of 
 Landed Estates 
 (Ir.) Act by 
 which Indefeas- 
 ible titles are 
 granted. 
 Its wording. 
 
 performance to take the case out of the Statute of Frauds. 
 In Tottenham s Estate, the writer cannot help thinking that 
 the negligence of the purchaser's solicitor in not seeing that 
 the map was correctly coloured was an unjust disregard of 
 the interests of the other party, and, therefore, amounted 
 to fraud, and that this fraud, having been committed by 
 the purchaser's agent, was chargeable on the purchaser 
 herself, notwithstanding the decision in Udell v.Atherton(a), 
 and that the Court might, therefore, have rectified the deed 
 on the ground of fraud. On this point, however, the writer 
 does not express any decided opinion. The question is very 
 complicated and would require an essay for itself. But 
 whether relief might have been granted on the ground of 
 fraud or not, it might have been granted on the ground of 
 mistake (b). In both cases, therefore, the preliminary 
 question : — Could Equity grant relief if there were no inde- 
 feasible title? — must be answered in the affirmative. 
 
 The remaining question in both cases is — Is the Landed- 
 Estates-Court conveyance a bar to that relief? 
 
 The provisions in the Landed Estates Act respecting the 
 sale of a fee-simple are distinct from those respecting that 
 of a lease. In the case in which the writer was consulted 
 the subject of sale was a lease; in Tottenham's Estate it was 
 the fee. As to a fee-simple the enactment [c) is that a 
 Conveyance from the Court shall be effectual to pass the 
 fee-simple, subject to such charges, &c, "as may be ex- 
 pressed or referred to therein, but, save as aforesaid and as 
 hereinafter provided, discharged from all former and other 
 estates, rights, titles, charges, and incumbrances." As re- 
 gards a leasehold, that the Conveyance shall pass the 
 estate created by the lease, so far as unexpired, subject to 
 the rent and covenants, but "save as aforesaid and as herein- 
 
 O) 7 H. & N., 172. See on this 
 subject, ante, p. 286 (A)-(o); 288(c); 
 289 (o);290 (a) (6). 
 
 (b) See on this subject, ante, p. 280-4. 
 
 (c) 21 & 22 Vic, 0. 72, s. 61.
 
 PERSONAL EQUITIES, &C, App. vii. 
 
 after provided," discharged from all rights, titles, charges, and 
 incumbrances affecling the leasehold estate. The words "save as 
 aforesaid" in this section must mean " save as regards the 
 charges, &c, referred to in, and the rents and covenants 
 provided for by, the earlier part of s. 61," for there is 
 nothing else they can refer to as far as regards the present 
 question, unless s. 37 be considered applicable. The words 
 "and as hereinafter provided," must have reference to s. 
 62, which provides that the conveyance shall not affect 
 certain charges made by virtue of certain earlier acts (a) 
 there referred to, except as therein-mentioned. We may, 
 therefore, treat the section as if these words had been left 
 out. 
 
 The question then amounts to this. Does the section its effect, 
 (omitting these words) prohibit a Court of Equit)^, in case General b'- 
 of contract, fraud, or mistake, from granting relief against 
 that very person who has made the contract, or committed 
 the fraud or mistake ; and if it does not prohibit the grant- 
 ing of every kind of relief, does it prohibit the granting of 
 that kind which consists in directing the re-conveyance of 
 the land which forms the subject of controversy? And 
 this is resoluble into these questions. (1st) — Is a claim of 
 this nature a "right, title, charge, or incumbrance" within 
 the meaning of the Statute? (2nd) — Assuming that it is, 
 is it necessarily a right affecting the land, or may it not be 
 viewed as a right affecting the person only, which Equity 
 will recognize as affecting him only, and will enforce 
 against him either by compelling him personally to recon- 
 vey the land — or, if he has already alienated it, or the 
 Court finds it impossible, or considers it undesirable, to 
 compel a re-conveyance, then by decreeing either the con- 
 veyance of other land of equal value, or the payment of a 
 pecuniary compensation ? The writer thinks both these 
 questions may be answered favourably to the injured 
 
 (a) 5 & 6 Vic, c. 89; 10 & 11 Vic, c. 32.
 
 App. viii. PERSONAL EQUITIES, &C. 
 
 claimant. He is aware that the doctrine propounded in 
 
 answering the second question will seem to some readers a 
 
 startling one, but he can only ask them to suspend their 
 
 judgment till they shall have perused the arguments he will 
 
 advance in its support. 
 
 What claims Firstly — As to the meaning of the words "right," "title," 
 
 against the "charge," and "incumbrance." The Act is of the nature 
 
 Land are bar- ° ' 
 
 red by it. of a Penal Statute, and should, therefore, be construed 
 
 strictly. It contains no recitals by which its policy can be 
 discovered, but, if we may infer this from internal evidence 
 (and no other can be admitted), we conceive it could only 
 have been to make the conveyance of the Court a good root 
 of title, and thus exonerate the purchaser from the necessity 
 of going any further back than the conveyance in his 
 investigation of the liabilities which others had attached to 
 the land, and not at all to exonerate him from the ordinary 
 legal consequences of any obligation which he himself 
 personally may have incurred. A Court, unless it violates 
 the usual principles of construction, must interpret the 
 words we have quoted in their narrowest sense, not their 
 widest. 
 
 "Rights" ^ s re g ar ds a "Right" It is true that Coke says, (a) that 
 
 a "right, in general signification, includeth not only a right 
 for which a writ of right doth lie, but also any title or claim, 
 either by force of a condition, mortmain, or the like, for 
 the which no action is given by law but only an entry," and 
 this is quoted in Toml. Law Diet. s. voc. Now, taking this 
 to be the true definition of the word, it does not extend to 
 rights against the person, though they may draw with 
 them as an incident a right to have the land, and such 
 rights are recognized as a distinct class even in Coke's 
 Reports, where (b) it is laid down that if the conusee of a 
 Statute or recognizance [who corresponds to the (i) 
 
 (i) The passage between brackets lias reference to the law in Ireland (the 
 opinion having been given in an Irish case), where the elegit and equitable 
 charge are abolished, and the judgment-creditor has no jus in re, but may by 
 filing an aflidavit acquire the position of a mortgagee. 
 
 (a) Co. Litt., 265 a. (6) 10 Co. 47 b.
 
 PERSONAL EQUITIES, &C App. IX. 
 
 judgment-creditor, not to the judgment-mortgagee, of the 
 present day] release all his right to the land, he may, never- 
 theless, sue out execution against the land, because a 
 personal right, though it may enable him to obtain the 
 land, is not itself a right to the laud. But, in truth, the 
 above definition of "right" is not a correct definition of its 
 strict sense. Coke, in giving it, was commenting on a 
 precedent of a release of right, and he meant to state its 
 most extensive (which is, probably, what he meant by 
 "general,") signification, because in a release its most 
 extensive meaning would be given to it. It is clear on 
 authority that the natural meaning of the word is "the 
 mere ownership of the land," or "that portion of the owner- 
 ship which remains in the owner after the land itself has 
 been taken possession of by an adverse claimant." In 
 Plowden (a), there is a discussion as to the meaning of this 
 word, and the doctrine stated there is quoted with approval 
 in Coke's (b) reports. A man had made a lease for life, 
 with a condition that it should, in a specified event, become 
 enlarged into a fee-simple. By Act of Parliament the 
 lessor was attainted of high treason, and his estates for- 
 feited, but the Statute contained a saving of the "rights" 
 of strangers, and one question was whether the title to have 
 fee upon performance of the condition was a "right" 
 within the meaning of the Statute. Plowden's note is that 
 "right" is a general word, and must be largely understood, 
 and is of six kinds: (i), Right of recovering; (2), Right 
 of entering; (3), Right of having; (4), Right of retaining; 
 (5), Right of receiving; (6), Right of possession ; and in a 
 saving of the "rights" of innocent third persons, the word 
 may be understood to include all these rights and many 
 others, because to take away such a right is contrary to 
 reason and justice, for which cause every reasonable man 
 will extend it to save everything which one has, or may 
 
 («) SkhoUesx.Nickolles, Plowden 487b. (&) 8 Co. 151b. 
 
 App, 2.
 
 App. X. PERSONAL EQUITIES, &C. 
 
 have, in or out of the land. The reason which Plowden 
 gives for construing the word largely in this Statute should 
 equally induce a narrow construction of it in the Landed- 
 Estates-Act; but, taking it in all the six senses, it only 
 extends to rights in re, for the "right of recovering" no 
 doubt means a right to recover in a real action, in which 
 case the party must have had a "right" in the sense in 
 which we have defined the word. Its strict interpretation 
 is thus given — "The first is of Right, and that is where 
 one has a thing which was taken from another by wrong, 
 (as, by disseisin, by ejectment, and such like); that chal- 
 lenge, or claim which he has who had the thing is termed 
 'right.'" (a). That the definition we have given of a right 
 is correct is proved by two modern (b) cases, which decide 
 that the enactment (c) that a "right" of entry may be 
 alienated does not extend to a "title" of entry for condition 
 broken. 
 
 "Titles" ^ Title is defined (d) to be "where a lawful cause is come 
 
 to one to have a thing which another has," and it is added 
 that "he has not any action (i) for this; as, a title of mort- 
 main, or of entering for condition broken." And it was 
 said that the possibility which the lessee in the case last 
 alluded to had of acquiring the fee by performance of the 
 condition was not a title. This definition seems to have 
 been laid down by the minority of the Court in delivering 
 judgment. Tomlinson defines it to be "when a man has 
 lawful cause to enter into lands whereof another is seised." 
 
 "Charges." ^ Charge has been defined as "a thing done, that bindeth 
 
 him that doth it or that which is his, to the performance 
 thereof," and accordingly, it is said that a judgment was, 
 before the modern Acts, a "charge" on land. But the 
 
 (i) That is any " Real action" technically so called. "Action" and "Inter- 
 est" are also defined iu Plowden 484. 
 
 (a) Plowden, 484a; see also Co. Litt. (c) 8 & 9 Vict., c. 10. 
 345a. (</) Pl ow d., 483a. See also Co. Litt., 
 
 (6) Hunt v. Bishop, 8 Ex. 657; Hunt 345b. 
 T. Remnant, 9 Ex. 635.
 
 PERSONAL EQUITIES, &C. App. xi. 
 
 meaning of the word has certainly much altered since this 
 definition was written. It now means an incumbrance on 
 the lands as distinguished from a claim against the person. 
 This seems proved by the authorities (a) cited in the note. 
 
 An Incumbrance is defined by the Landed-Estates-Act "Incuni- 
 itself in a way which excludes such a claim as we have 
 been discussing. 
 
 It appears, then, that on ordinary principles of con- 
 struction the words in question do not include such a claim 
 as we are considering. If it had been intended to include 
 anything more than what falls strictly within the meaning 
 of these unusual words "right, title, charge, and incum- 
 brance" it is reasonable to suppose that the draughtsman 
 would have made use of the common form used in deeds, 
 (which lay ready to his hand, and would have exactly 
 suited his purpose): "Every estate, right, title, interest, 
 claim, and demand, whether at law or in equity, in, to, or 
 concerning the premises." 
 
 Secondly. — Even if the claim in question does fall within what claims 
 the words "right, title, charge, or incumbrance," the p e a r ^ tthe 
 writer thinks it is not a right affecting the land, but one barred by it. 
 affecting the person. When a man makes a contract, or t b ese claims. 
 commits a fraud or mistake, he becomes personally liable 
 to afford redress to the other party. It may be that by his 
 contract he purports to affect (or even to entirely alienate) 
 his land, or it may be that the rules of Equity, (in conse- 
 quence of his contract, fraud, or mistake,) transfer to the 
 other party an interest in his land; but this does not relieve 
 him from his personal responsibility. True it is that the 
 injured party must choose which remedy he will have, the 
 personal or the real, but he may prefer the personal, and 
 the destruction of the real remedy does not disentitle him 
 to the personal. Now, the Landed-Estates-Act has taken 
 away the real remedy, but it does not purport to impair 
 
 (a) Sugd., V. P., 411, pi. 29; Fish., Mori, (2nd Ed.), 485, lines 8-9.
 
 App. xii. PERSONAL EQUITIES, &C. 
 
 the personal. The personal remedy, therefore, is still in 
 force. If a man agrees to sell land to me, and afterwards 
 obtains from the Landed-Estates-Court a declaration that 
 he is himself entitled to it ; or if a man by fraud procures 
 my land to be conveyed to him by that Court ; he is still 
 liable, notwithstanding the Landed-Estates-Act, to pay me 
 pecuniary damages, which I may recover by action in the 
 Common Law Courts. 
 They forma Now, there are some cases in which the Common Law 
 
 Equitable does not afford an Y remedy. The writer has, after great 
 
 relief. consideration and a perusal of all the relative cases, come 
 
 (l),Againstthe ... 
 
 person. to the conclusion that an agreement may be wanting in 
 
 some of the essential attributes of a contract, and yet, if 
 partly performed, may be enforcible in Equity; but of course 
 he is aware that this proposition is open to much dispute 
 («). But it appears from a comparison of the cases that 
 such a representation as occurred in the case (b) respecting 
 which the writer was consulted would have entitled the 
 representee to specific performance; but would, in an 
 action for damages, have been treated as void, on the 
 ground that the consideration, though within the contempla- 
 tion of the parties, consisted only of an act done in reliance 
 on the contract, and had not been agreed upon by way 
 of bargain. And, even if the negligence committed in 
 Tottenham's estate was not sufficient to support an action for 
 deceit, still it might have entitled the party to an equitable 
 remedy, and if it were insufficient to entitle him to any 
 remedy on the ground of fraud, still it might have entitled 
 him to relief on the ground of mistake — a ground on which 
 he could have no remedy at law. Whether the injured 
 party would, but for the Landed-Estates- Act, be entitled to 
 a remedy in either case is a question which, as already 
 (c) stated, would require a separate discussion, but assum- 
 
 (a) See on this subject, ante, p. 81-2 ; (b) Ante, App. p. ii. 
 95 (g)-lOQ (f). (c) Ante, App. p. vi.
 
 PERSONAL EQUITIES, &C. App. xiii. 
 
 ing that he would, and assuming (as I think we may) that 
 it is a principle of Equity (though one but imperfectly recog- 
 nised) that wherever any person is entitled to a remedy on principles 
 of natural jurisprudence, but the Common Law gives him none, 
 Equity will give him one, even though the only remedy properly ap- 
 plicable to his case be pecuniary damages or compensation, it seems to 
 follow that where Equity recognises the right, and gives a 
 real remedy against the lands, &c, and a special Statute 
 takes away that real remedy without expressly prohibiting 
 any remedy whatever, and the case is one in which the 
 Common Law gives no remedy, Equity will give a personal 
 remedy in damages or otherwise. In the cases under 
 consideration, the writer thinks that Common Law gives 
 no remedy, and that Equity would give a real remedy but 
 for the Statute, and he assumes for argument's sake that 
 the Statute has taken away the real remedy. Therefore, 
 a personal remedy remains, if the above imperfectly recog- 
 nised principle can be proved to exist in Equity. Let us 
 attempt the proof. 
 
 It seems to be sometimes thought that there is something 
 in the nature of Equity antagonistic to the idea of relief 
 by giving pecuniary damages. As applied to that kind of 
 damages in which the feelings of the injured party must 
 be taken into consideration, this is no doubt true, because 
 perhaps no two 'men would form the same estimate of the 
 compensation due to injured feelings, and hence the only 
 way to obtain an approximately correct decision is to strike 
 an average between the opinions of several different men, 
 or (in other words) to submit the case to a jury. But 
 whenever the damages are matter of calculation a Court 
 of Equity is competent to deal with the case. If, indeed, 
 a satisfactory remedy can be obtained at law Equity 
 should refuse to interfere, because its jurisdiction is 
 suppletory. But whenever three circumstances concur : — 
 (i), That on principles of general jurisprudence a remedy
 
 App. xiv. 
 
 PERSONAL EQUITIES, &C. 
 
 (2) Through 
 the person 
 against the 
 Land. 
 
 should be given; (2), That the Common Law refuses it; 
 (3), That the damages are matter of calculation:, — Equity 
 should interfere. And Equity does interfere (a). In the 
 well known cases (b) in which Equity gives compensation 
 for deficiencies in the quality and quantity of estates agreed 
 to be sold, this doctrine is exemplified. Other cases go 
 much further in the same direction. In a recent case (c), 
 a partner who had paid a premium having died, the return 
 of part of it was ordered, and precedents were adduced to 
 the same effect, and on the death or bankruptcy of masters 
 of apprentices the same jurisdiction was long exercised, by 
 directing a return (d) of a proportionate part of the appren- 
 ticeship fee. In these cases the Court did in effect give to 
 the injured party pecuniary damages for the non-perform- 
 ance by the other party of his part of the contract, which 
 his death, bankruptcy, &c, rendered him unable to 
 perform. And this principle is borne out by Carey v. Stafford 
 (cited below), and indeed it flows directly from the maxim 
 that Equity will not suffer a right to be without a remedy, 
 for in some cases the only remedy applicable is a personal 
 one. 
 
 But we go further. We maintain that not only does the 
 removal of the real remedy cause a personal remedy to 
 spring up, but that the land itself may be indirectly reached 
 by means of that personal remedy, provided it still 
 continues to belong to the defaulting party, or (according 
 to the better opinion) to his representatives. We admit 
 that when once he has alienated it beneficially, even to one 
 who pays no consideration and knows all the circumstances, 
 the only remedy which remains is to compel him to pay 
 
 (a) This doctrine must now he cor- 
 rected hy Britain v. Rossiter, L. J. 48 
 Ex. 362, and Kelly v. Webster, 12 C. B. 
 283. 
 
 (b) Ante, p. 308 (</)-309 (it); 319 (•> 
 320(0,321 ( 5 )-(i). 
 
 (c) Alwood v. Maude, Law Rep., 3 
 Ch. 369. 
 
 (d) Hirst v. Tolson, 2 McN. & G., 
 134; Hale v. Webb, 2 Bro. C.C., 78; 
 Newton v. Rowse, 1 Vera., 460; Sandby, 
 1 Atk., 149; Barvellv. Ward, 1 Atk. 
 260; Webb v. England, 7 Jur., N. S., 
 153, &C.
 
 PERSONAL EQUITIES, &C. App. XV. 
 
 compensation in money, or to convey other lands of 
 equal value, but so long as the lands to which the plaintiff 
 has a moral right remain in the other party's ownership, 
 so long (we contend) the Court will, or at least may in its 
 discretion, compel him to reconvey them. 
 
 In ancient times a use was regarded as a mere personal 
 confidence, so much so that at first a purchaser from the 
 feoffee to uses, or even (it is said) his heir, could not be 
 compelled to execute it, nor could a corporation, because 
 it had no soul, and therefore could not be guilty of a 
 breach of faith (a). But since the passing of the Statute 
 of Uses (b), the doctrines of Equity have much changed. 
 Trusts have come in place of uses, but they are not the 
 same. They are regarded (a) as the land itself, or rather 
 as an estate in it. But Courts of Equity, while thus 
 moulding the doctrines in respect to the beneficial estate 
 into conformity with the doctrine already existing in 
 respect to the legal estate, seem to have retained the 
 ancient mode of viewing the subject in regard to a class of 
 rights which a great writer (Spence) describes as those in 
 which the legal estate has not been, by way of trust, con- 
 veyed to the party in whom it is vested, but has been 
 acquired or is retained against conscience and equity. In 
 these cases, as the same writer adds, the claimant seeks to 
 enforce an equitable right, not to secure an equitable estate. 
 And this principle, it is plain, admits of the remedy being 
 enforced against the guilty party himself even when some 
 obstacle prevents its enforcement against a purchaser from 
 him, as, for example, when no specific subject, or no 
 specific part of the subject, is affected by the equity; and 
 when some rule of positive law prohibits the Court from 
 affecting the subject of property itself. 
 
 The existence of Equitable rights of this nature is Decisions on 
 acknowledged by the following cases :— this subject in 
 
 (a) Lewin on Trusts, Introd.,esp. p. 2. (6) 27 Hen. VIII, c. 10.
 
 App. xvi. PERSONAL EQUITIES, &C. 
 
 A female (a) infant, being a ward of Court, married. She 
 was entitled to an estate in Demerara. A settlement of 
 this estate was made by the direction of the Court, but the 
 settlement was void by the law of Demerara. The husband 
 and wife mortgaged the estate to a person who had full 
 notice of the settlement. It was held that the mortgagee 
 was not bound by the settlement, because it was void, but 
 the Master of the Rolls expressed an opinion that the 
 " contract of the husband" bound his person, though it 
 did not bind the estate, and that therefore the Court would 
 have made him give an equivalent. He put the following 
 case: — Suppose the husband had been the owner of two 
 estates, and had made a settlement of one, but afterwards 
 his title to it had turned out to be bad, and the true owner 
 had evicted the trustees, the husband would have been 
 compellable to settle the other estate, or so much of it as 
 might be sufficient to compensate for the evicted estate. 
 But this equity would, until Bill filed, have been personal 
 only, and would not have affected the lands. 
 
 A was (b) in possession of a copyhold estate, of which he 
 believed himself to be owner. He agreed to sell it. Before 
 the conveyance it turned out that the estate really belonged 
 to an ancestor of his who was still alive. Afterwards, 
 before any conveyance, the ancestor died, and the estate 
 descended to A. Afterwards A died, and the purchaser 
 brought a bill for specific performance against his heir. 
 The bill was dismissed on the ground of surprise, but the 
 Court expressed an opinion that the contract thus made 
 while the vendor had no estate, did not bind any estate he 
 may afterwards acquire, even in the hands of his heir, but 
 did bind himself personally. The diclum to the effect that the 
 heir is not bound has been disapproved of by Lord St. 
 Leonards (c), and, (if the writer may presume to say so) 
 
 (<0 Martin v. Martin, 2 R. & M. 507. (e) In Averall v. Wade, LI. & G. t. 
 (b) Morse v. Faulkner, 3 Swan. 429, Sugd. 252. 
 n. 1 Ans. 11.
 
 PERSONAL EQUITIES, &C. App. XviU 
 
 on good grounds, for a personal contract binds no specific 
 personal estate, but does bind the party who breaks it to 
 pay damages, and (in general) binds the executor to the 
 extent of the assets. By parity of reasoning the heir should 
 be bound by the liability in question, though merely per- 
 sonal. This does not at all imply that a disponee, although 
 taking by way of gift and knowing all the circumstances, 
 would be affected. 
 
 S procured (a) a deed to be prepared, whereby lands 
 were purported to be leased at nominal rent, with covenant 
 by the lessor for quiet enjoyment. He afterwards filled in 
 his own name as lessor, and that of his servant C as lessee, 
 and (it is to be presumed) executed the deed. He also 
 gave the deed to C. It turned out that there were no such 
 lands, and C brought a bill for a lease of other lands of 
 equal value. It was held that, as no estate passed, the 
 covenant for quiet enjoyment was void at law, because it 
 was annexed to the estate, that consequently no relief 
 could be had at Law by action on the covenant, and, there- 
 fore, that relief must be had in Equity. And it was decreed 
 that lands of equal value should be leased instead, and that 
 an account of rents and profits from the date of the deed 
 should be rendered as if such lands had really been leased 
 by it. The decision would a fortiori have been the same if 
 the contract had been made for valuable consideration, 
 and the case would then have been as strong an authority 
 on the point we cite it on as it is under the actual circum- 
 stances. Subsequent cases make it doubtful whether Equity 
 would now grant relief where valuable consideration is absent, 
 but this does not affect our position. 
 
 In another (6) case, Lord Cranworth, V. C, referring 
 to the doctrine that where a judgment, or other incum- 
 brance (c), was not registered, it should, nevertheless, bind 
 a purchaser having notice of it, said : — 
 
 (a) Carey v. Stafford, 3 Swan. 427n. S. 108. 
 
 (6) Juhnsony. Holdsworth, 1 Sim., N. (c) Davis v. Strutltmore, 16 Vez. 419. 
 
 App. 3.
 
 App. XVlii. PERSONAL EQUITIES, &C. 
 
 "All that Equity has done is this: — where a purchaser has paid 
 his money to a vendor, with notice of an unregistered judgment 
 against that vendor, there this Court has held that such a pur- 
 chaser shall not, to the prejudice of the judgment-creditor, shelter 
 himself behind the Registry Acts, which were made to protect 
 parties against charges of which they had no notice, and not 
 against those which were well known to them. . . . But the 
 equity so enforced is merely a personal equity, arising out of the 
 character of vendor and purchaser; an equity affecting the con- 
 science of a party paying money without notice." 
 
 Whether Lord Cranworth thought that the equity 
 would have affected a purchaser with notice, claiming 
 under the first such purchaser, does not appear; but, if so, 
 it must have been a fresh equity attaching on the conscience 
 of such purchaser. The case was one where the owner of 
 lands situate in a register county had mortgaged them, and 
 the mortgage had been registered, and afterwards the 
 mortgagor had confessed judgments which had never been 
 registered. The decision was that these judgment-creditors 
 had no right to redeem the mortgagee, because they had 
 no incumbrance on the land. 
 
 The well-known cases which show that an Expectancy 
 may be the subject of contract, establish the same principle 
 to a certain extent. A learned (a) writer (now a Judge) 
 observes — 
 
 "Contracts made by a person before the devolution of the estate 
 or other realisation of his expectancy, are, it seems, purely personal, 
 and only capable of being enforced against the contractor personally 
 during his (b) lifetime. In Morsev. Faulkner (c), in 1792, the Lord 
 Chief Baron, speaking of such a case, said, ' The surrenderor not 
 having any title whatever to the premises at the time of the 
 surrender, his agreement would not raise a lien upon the land, and 
 the present plaintiffs might have been relieved if they had filed 
 their bill against him in his lifetime, that is, after his title had 
 accrued, yet it does not follow that, therefore, they can be relieved 
 
 (a) Fry Sp. Perf. 40O-1. tatives" shouldbe subjoined after "life- 
 
 (6) It is submitted tbe words "or time." — V. Ante, App. pp. xvi-xvii. 
 against his real or personal represen- (o) 3 Swan. 429n., 1 Ans. 11.
 
 PERSONAL EQUITIES, &C. App. xix. 
 
 against his heirs. Neither the land itself, nor the conscience of 
 the present defendants is bound by this act of William, the surren- 
 deror.' Similar to this appears to be the doctrine of Lord Eldon 
 in (a) Carlton v. Lcighton, for though his lordship is represented 
 as saying that the expectancy of an heir could not be made the 
 subject of assignment or contract" [here the learned writer 
 subjoins "Q". for ' contvaCf read 'conveyance"'] yet the subsequent 
 sentences seem rather to show his meaning to have been, that, 
 though a contract might create a personal liability, there was no 
 such interest as could be assigned ; or as would pass by a bargain 
 and sale to assignees in bankruptcy." 
 
 There is a (b) case which seems, at first sight, to impugn 
 this doctrine, but, rightly considered, it leaves it untouched, 
 for in it there was a legal title to be impugned, and the 
 subject of the contract was one the loss of which could be 
 compensated for by damages which might have been 
 recovered in an action. 
 
 The above cases seem to prove that Equity recognises Result of these 
 the principle that a subject of property may be affected, 
 indirectly, through the person of its owner, even in cases 
 in which the plaintiff possesses no interest in the subject 
 of property itself, and that this principle will be applied 
 where a specific subject cannot be affected by a contract 
 whether because none is designated or because there is 
 none in existence, or because the subject does not, (at the 
 time of the contract,) belong to the contracting party. It 
 is merely another application of the same principle to hold 
 that a similar relief may be granted where some positive 
 enactment prohibits the Court from recognising that the 
 plaintiff possesses any interest in the subject of property, 
 and yet does not prohibit it from applying a personal 
 remedy. There have been some cases on this branch of 
 the subject also. Some of these have arisen on the Ship 
 Registry Acts, but need not be discussed because they have 
 
 (a) Carlton v. Leighton, 3 Mer. 667. • (fi) Hoarey. Dresser, 7 H. L. C. 138.
 
 App. xx. 
 
 PERSONAL EQUITIES, &C, 
 
 Decisions on 
 this subject 
 arising under 
 the Landed 
 Estates Act. 
 
 Result of these 
 decisions. 
 
 Section of 
 Landed Estates 
 (It.) Act by 
 which Infor- 
 malities are 
 cured. 
 
 turned on the peculiar language and policy of those 
 Statutes. 
 
 As regards the cases on this subject which have arisen 
 on the Incumbered and Landed Estates Acts: The true 
 principle was in one (a) of them thought to be that if, by- 
 fraud negligence or misconduct, the party having carriage 
 of the sale procures the Court to convey to him property 
 which ought not to have been conveyed, the Court has 
 jurisdiction to compel him to reconvey if the property 
 remains in his hands, and to make a pecuniary compen- 
 sation if he has sold it: It was held in another (b) that 
 where the purchase is infected with fraud the Court's 
 equitable jurisdiction will attach to restrain the purchaser 
 from profiting by his fraud: And in another (c) that the 
 Encumbered Estates Court had power to recall a deed 
 which, by mistake or by fraud on the Court, has been 
 erroneously framed, and to correct such error, but this 
 point does not seem to have been involved in the decision. 
 
 The above cases, so far as they attribute a power to the 
 Landed Estates Court to modify its conveyance, are over- 
 ruled by Tottenham's estate. But they have another aspect. 
 The reason why the judges thought they had the powers 
 mentioned was because they thought such power belonged 
 to Courts of Equity. So far we submit the cases are sound. 
 They err only in forgetting that on execution of the con- 
 veyances the judges of the Landed Estates Court cease to 
 have jurisdiction. Some light may be cast on this matter 
 by another case (d) in which the Court held that tenants 
 who suffer damage by the operation of the conveyance 
 may be awarded compensation out of the purchase-money, 
 because then the Court is not dealing with the land nor 
 infringing the conclusive effect of the conveyance. 
 
 There is another section (e) of the Act which has been 
 
 («) Re Collis's Estate, 14 Ir. Ch. 51 1 ; 
 9 Ir. Jur., N.S., 177. 
 
 (6) Re Goolds Estate, 2 Ir. Jur., N. 
 S. 387. 
 
 (c) Exp. Truell, 1 Ir. Jur., N.S., 66. 
 
 (d) Bodkyn's Estate. 3 Ir. Jur., 131. 
 
 (e) 21 & 22 Via, c. 72, s. 85.
 
 PERSONAL EQUITIES, &C. App. XXI. 
 
 so much relied on that it deserves a separate consideration. 
 It enacts that : — 
 
 " Every conveyance . . . shall for all purposes be conclu- * ts w ordin<: 
 sive evidence that every application, proceeding, consent, and act 
 whatsoever, which ought to have been made, given, and done, 
 previously to the execution of such conveyance, has been made, 
 given, and done, by the person authorised to make, give, and do, 
 the same; and no such conveyance shall be impeached, by reason 
 of any informality therein." 
 
 Now, the writer is unable to see how this section can its effect, 
 reach either of the cases under consideration. 
 
 In the case (a) respecting which the writer was consulted 
 the fact that every such application, notice, consent, and 
 act, had been made, or done, would have been consistent 
 with the existence of a representation such as existed in 
 that case, and M's rights would not have been impaired by 
 this section if they were not by the other. It is true that 
 if in Tottenham's estate an application had been made for the 
 sale of Lord Lanesborough's property, and he had con- 
 sented thereto, no fraud nor mistake could have existed, 
 and therefore, if the Statute means that this is to be 
 conclusively presumed, it means that it must be conclu- 
 sively presumed that no fraud nor mistake of the nature 
 there in question ever existed, but it is conceived that this 
 is not the true meaning of the Statute. Its meaning, (it is 
 conceived) is, that every application, &c, which would be 
 requisite for the perfect validity of the conveyance must be 
 presumed to be done. Its object was to save trouble in 
 investigating title, or in satisfying the purchaser, but it does 
 not affect the claim of one who admits that the conveyance 
 has, (as respects all the land comprised in it,) the full effi- 
 cacy given to it by the 6ist section. But for the 85th section 
 it might have been contended that if any such preliminary as 
 it there mentioned had been omitted the conveyance would 
 have been ultra vires and void. By Section 61 a certain 
 efficacy is given to conveyances made after the performance 
 
 (a) A nte, App. p. ii.
 
 App. xxii. PERSONAL EQUITIES, &C. 
 
 of certain preliminaries. By Section 85 the same effed is 
 given to conveyances executed without these preliminaries. 
 Such (it is conceived) was the object of the Legislature; 
 and if they had used weaker language there would have 
 been danger (having regard to such decisions as Davis v. 
 Strathmore) that that intention would not have been carried 
 into effect. 
 Decisions on .The case (a) which is regarded as the leading 'authority 
 
 on this section is not here in point. Lands were sold by 
 auction under the Landed-Estates-Court, and the owner 
 purchased them through a trustee who was not a solicitor. 
 There was a rule of Court that no person should purchase 
 through a trustee, unless the trustee was a solicitor ; but 
 the owner and his trustee seem to have been ignorant of this. 
 The Court pronounced an order rescinding the sale on ac- 
 count of the violation of this rule, and appointing a day 
 (distant about four weeks from that time) for a resale. Four 
 days afterwards the Court caused a notice to be served on 
 the person who had purchased on behalf of the owner, to 
 the effect that the resale was to take place on the day 
 appointed, and that (in the meantime) the owner might 
 pay into Court the sum he had bid for the estate, and apply 
 to the Court to be declared purchaser by private contract. 
 This the purchaser did not do, nor did he then appeal 
 from the order made, but on the day of the resale, just 
 before it took place, he insisted before the Court that the 
 Court had no right to rescind the purchase made by him, 
 but that he was entitled to carry it into effect. This the 
 Court disallowed. The sale proceeded, and strangers pur- 
 chased the land. Nearly a month afterwards a motion 
 (pursuant to a notice served a few days before on the 
 new purchasers) was made that the lands might be con- 
 veyed to the original purchaser (the owner). This the Court 
 refused to hear, on the ground that the owner was in con- 
 
 (a) Power v. Reeves, 10 H. L. C. 645.
 
 PERSONAL EQUITIES, &C App. xxiii. 
 
 tempt by reason of his having bid through a trustee who 
 was not a solicitor, and having not taken advantage of the 
 permission to purchase by private contract. Afterwards 
 the Court conveyed the lands to the party who had pur- 
 chased at the resale. More than a month after the resale, 
 (but whether before or after the execution of the convey- 
 ance did not appear,) the owner determined to appeal 
 from the orders rescinding the sale, and served notice of 
 that determination, both on the party having carriage of 
 the proceedings, and on the purchasers at the resale. The 
 House of Lords affirmed the orders, but on the sole 
 grounds that, as the conveyance had been executed, the 
 purchasers could not be affected, and therefore these orders 
 should not be taken out of the way ; for to take them out 
 of the way might render it easier for the owner to proceed 
 against the purchaser at a resale. The Lords did not say 
 they conceived that the removal of the orders would give a 
 ground for relief against the purchasers. If that was their 
 opinion it would be a strong argument in favour of the view 
 for which we are contending. But assuming their opinion 
 to have been (as it probably was) that the removal of the 
 orders would not give any right against the purchasers, yet 
 the case does not impugn our argument. For though the 
 owner insisted that the Court had no right to rescind the 
 contract made with him (which probably amounted to 
 asserting that the beneficial estate, or at least a title to it, 
 was vested in him), and though the purchasers had notice 
 of this assertion, yet they had also notice that the Court 
 disallowed it, and therefore their consciences could not 
 have been affected by it. And if it did not affect their 
 consciences, then the interest which the owner alleged to 
 be in himself must have been, not a claim against them, but 
 an interest in the land itself, and therefore barred by the 
 conveyance. 
 
 In another case (a), one purchased in the Landed-Estates- 
 
 (a) Rorle v. Errington, 7 H. L.C. 617.
 
 App. XXIV. PERSONAL EQUITIES, &C. 
 
 Court an estate which was subject to a lease, and was 
 described in the rental (i.e. particulars of sale) as being so. 
 The conveyance was executed, but the lease was not men- 
 tioned in it. The purchaser recovered judgment in eject- 
 ment against the lessee, and on error the House of Lords 
 affirmed that judgment. How the question, as a legal 
 question, could have been considered doubtful, seems 
 incomprehensible. And neither the Lords in their judg- 
 ment nor the judges below in theirs, nor the counsel in 
 argument, seem to have had in view the equities of the 
 case. It is true that in Ireland (a) equitable defences are 
 still (b) admissible in ejectment. But this doctrine cannot 
 go further than Lord Mansfield's doctrine as to their 
 admissibility (c), which only applied in cases of clear trusts, 
 (and therefore, the writer submits, to such equitable 
 interests only as were extendible under the Statute of 
 Frauds,) and consequently it can have had no application 
 to a personal equity like the present. 
 Result of these ^ appears, therefore, that these cases do not impugn 
 decisions. ^g ii nes f argument above advocated — lines of argument 
 
 which singularly enough never suggested themselves to the 
 counsel or judges in Tottenham's estate, but which (it is sub- 
 mitted) are the only ones by which justice is, in such 
 cases, attainable. 
 
 (a) Report of the Ch. and Com. Law "inadmissible" in the Law Mag. 
 Commissioners, (Sir J. Napier's pro- (c) Goodright v. Wells. Dougl., 746; 
 
 test). Doe v. Pott, ib., 695. This word was 
 
 (6) 1870. This word was misprinted misprinted "inadmissibility."
 
 App. XXV.) 
 
 ADDENDA ET CORRIGENDA. 
 
 [Bringing down the statutes to the end of the 41-5 Vic, and the cases to 
 the end of L.R. 6 Ap., 18 CD., 7 U.B.D., and 6 P.D.] 
 
 Add "while on the other hand some long terms in tenements may be P-*ȣ 15 
 converted into freeholds ( — a).' 1 
 
 Insert "(— a) 44-5 Vic. c. 41 s. 65." A ' ote 
 
 After " fixture " add " (c)." I 28. 
 
 Insert "(c) Esp. Holland v. Hodyson 41 L.J.C.P. 146." iW«s. 
 
 After "(bees, &c.) " add " or which are necessary to the enjoyment thereof p. 6, /. ii. 
 Insert "(/) See, Moody v. Stayylcs L.R. 12 CD. 267." Notes. 
 
 In n. (i), /. 5, after " natural right " insert " ( — a)." p. 8. 
 
 Insert "( — a) As in Balton v. Angus L.R. 6 Ap. 793,S30 i /?m." Notes. 
 
 For "chapter" read " chapters." P- 12. '■ ■*• 
 
 After " along with these " add " But the public cannot (a), nor can any /. 23. 
 fluctuating body (a), acquire, hy user or adverse enjoyment, a profit in 
 prender (b) as distinguished from an easement ; and, though a corporation 
 may acquire such a profit (c), proof that a body of persons has had such 
 enjoyment will not raise a presumption that it is incorporated (d)." 
 
 Insert " (a) M. Saltash v. Goodman (c) Sd., M.S. v. G. ; Austen v. Notes. 
 L.R. 5 C.P.D. 446,-54, andauthori- Amhurst L.R. 7 CD. 689. 
 ties there cited. (d) M.S. v. G. p. 446-7." 
 
 (b) Defined ante, p. 2. 
 
 For " But * * * refinements " substitute "And, this doctrine having p. l- r >,/. 13 p. 16. 
 come before the house of Lords, it has been decided {b), that a right to such '• 4 - 
 advantages over adjacent land as are necessary to the full enjoyment of any 
 right of ownership which the owner of the land to which it is adjacent has 
 exercised for 20 consecutive years, (for example, the advantage of such 
 verticle (b) or lateral (c) support as is necessary to the full enjoyment of a 
 building which has existed for 20 years {d), or the advantage of so much 
 light and air as is necessary to the full enjoyment of a window (e) which 
 has existed for that period,) is acquired by such exercise, even though the 
 advantage be one (/) which could not have been clothed with the legal 
 estate (</), but was of a negative character (h), and therefore could not have 
 been created by grant, but by covenant (i) ; and though no grant, covenant, 
 or the like, has been (or is found or presumed to have been) made, nor 
 acquiesence has occurred (J ) ; and though he against whom the advantage 
 is acquired was inevitably ignorant of the precise degree of enjoyment to 
 which a right was being acquired (k) (supposing at least that the acts were 
 in themselves lawful (/) and ordinary {in) and that no concealment was 
 practised {»)) ; and though (according to one judge {o) ) he was inevitably 
 ignorant of the fact that any such right was being acquired. But some of 
 the judges thought {p) that the rule only holds if he knew (or, according to 
 the ultimate decision (q), might by inquiry have ascertained,) that the enjoy- 
 ment extended to the full advantage claimed, or if this fact was manifest. 
 And the question was raised but not decided whether the right acquired is 
 
 A pp. 4.
 
 ADDENDA ET CORRIGENDA. 
 
 confined to the advantage actually enjoyed, or extends to whatever enjoyment 
 might have been had by means of the building or window subsisting (r). 
 And the right is only (s) acquired if 20 years (t) have elapsed during the 
 exercise of the right of ownership ; and only if that period has elapsed 
 since the exercise of the right of ownership began (w) to impose upon the 
 adjacent land the burthen the advantage of which is claimed, (so that the 
 right to extra adjacent support for a surface from which the immediately 
 subjacent strata have been removed, and for a house built upon that surface, 
 is only gained if the excavation as well as the house has existed for 20 years 
 (u) ). But the judges and lords conceded that a right cannot be thus gained 
 to an indefinite advantage, — such as, a prospect (t>), or such as, whatever 
 water may percolate through the soil (w), or whatever air may come from a 
 given quarter (x), — nor (save by acquiesence) to an advantage which origin- 
 ates in trespass, such as, a right of way (y) ; nor can a right be thus gained 
 against any but those who derive under him against whom the 20 years enjoy- 
 ment took place (a). And most of the lords and judges held (aa) that no dissent 
 nor interference by the owner of the servient tenement can prevent the 
 acquisition of the right unless he has occasion to interrupt the enjoyment, 
 as, by digging away the support (ab), or (which all admitted to be law) 
 abstracting the light (ac), claimed 
 
 Aoi«*. Insert " (a) Dalton v. Angus (a 
 
 very leading case) L.R. 6 Ap. 740. 
 See, for a statement of a principle 
 more reasonable than that actually 
 prevailing, p. 772, 804 ; and for the 
 principle of the existing rule, see 
 esp. 828, I. 6-12. 
 
 (b) D. v. A. p. 754, /. 27-p. 755, 
 I. 12. 
 
 (c) p. 750, /. 39— p. 751 ; 752 I. 
 11-6; 754, I. 6-8; 743, I. 20-34; 
 744, I. 10-3. 
 
 (d) Sufficient, p. 744, I. 13-6 ; 745, 
 I. 1-17 ; 760, I. 10 ; 808, I. 3-6. 
 
 e) p. 757 ; 760, I. 29-35. 
 
 /) p. 766, I. 5. 
 
 g) See ante, p. 2-3. 
 
 (h) Assumed by all the judges 
 and lords in D v. A ., though some of 
 them thought that the easement of 
 support is positive. 
 
 (i) p. 755, I. 5 ; and see p. 765, 
 771 fin. But that the right to Support, 
 Light, &c , may be granted, see p. 
 794-6. 
 
 (j) To Support, p. 748, 1. 13-749, 
 1. 9 ; 753, I. 9 ; 754, I. 17-8 ; 756 ; 
 and see 768, I. 13-5 ; 770, I. 22 ; 
 803. 
 
 To Light, p. 749, I. 26-33 ; 752, 
 I. 8-9 ; 756 ; 757-8 ; 765-6. 
 
 p. 23, 1. 19. For " Gains" substitute " Gaius." 
 
 p. 24, l. 9. After " enjoyed •' insert " ( — a)." 
 
 Xotes. Insert "( — a) As to what consti- 
 
 tutes possession, see M. Brighton v. 
 Gdns. Brighton L.R. 5 C.P.D. 368." 
 
 760, I. 20-5 : 
 
 (k) p. 751, I. 16-9 ; 744, I. 15-6, 
 27 ; 756 ; 760, 1. 13-20 ; 760-1 ; 761 ; 
 803; 828. 
 
 (I) p. 751, I. 23-6. 
 
 (m) p. 751, I. 22. 
 
 (») p. 751, I. 22; 827, last line 
 but one. 
 
 (o) p. 751, I. 16-9. 
 
 (p) p. 767, 1.5-7 
 766, I. 29-p. 767, 1. 36 ; 789, l l. 36 ; 
 807 ; 827, last line. 
 
 (q) p. 801, I. 16-22; 801-2; 
 802 ; 828, I. 22-4. 
 
 (r) p. 743, I. 2-10, 13-20, 37; 
 744, I. 4. 
 
 (s) Necessary, p. 744, I. 29-30; 
 804, I. 21-5. 
 
 (t) p. 753, I. 19-28. 
 
 («) p. 744, I. 4-7. 
 
 lv) p. 823-4. 
 
 (w) p. 759, I. 24-37 ; see 824. 
 
 (x) p. 750, I. 7-16. 
 
 (y) p. 749, I. 25-6. 
 
 (z) p. 751, I. 5-7. 
 
 (aa) p. 766, I. 18 ; 776, I. 28-9 ; 
 807,/w. ; 815, I. 32-816, 1. 16 ; 817, 
 I. 33-4. 
 
 (ab) p. 748, I. 7 ; 753, I 33 ; 759, 
 I. 13-4 ; 766, I. 19. 
 
 (ac) p. 748, /. 11 ; 753, I. 30 ; 
 766, I. 28-9 ; 824. 
 
 To n. (b) add "As to the Eccl. 
 Commrs., Eccles. Commrs. v.. Rowe 
 L.R. 5 Ap. 736."
 
 ADDENDA ET CORRIGENDA. 
 
 After "acquired" insert "This may be done even against persons p. 25, ^. 19. 
 restrained by a private statute from disposing of the property (« 1) " 
 
 Insert "(el) M. Brighton v. Gdns.of Brighton L.R. 5 C.P.D.368." Notes. 
 
 After "possession" insert "and, as these persons are considered to be p. 26, J. 4. 
 holding the property for their own use, so is an Agent who continues to 
 receive the income after the owner's bankruptcy (b 1), (for that terminates 
 the agency (bl) ). 
 
 For "he" substitute "either a foreclosure-order is made against him /. 15. 
 (d 1), or he (e), or some one whom he authorized or whose act done on his 
 behalf he adopts (e 1), or who is liable to make the payment out of some 
 part or fruit of a property which is subject to the mortgage (e 2) or to a 
 security for the same debt (« 3)," 
 
 After " when " insert " the foreclosure-order is made [d 1)." 
 
 After "into" insert " or continues in (b 1)" 
 
 After "enters" insert "or continues (b 1)" 
 
 After "given" add "but an acknowledgement given to a bankrupt 
 mortgagor is not effectual, either for bankruptcy-creditors, or for the 
 mortgagor himself in respect of his claim to any surplus in his estate (b 1)." 
 
 Insert "{b 1) Marivickv. Harding- 18 CD. 235, fin. 
 
 (e 2) H. v. A. L.R. 18 CD. 229 
 (e 3) Sd., H. v. A. p. 234-5." 
 After n. (/;) add "r. Alison {John- 
 son v. Mounsey) L.R. 11 CD. 284." 
 
 /. 18. 
 I. 20. 
 I. 22. 
 
 I. 26. 
 
 ham L.R-15 CD. 339. 
 
 (d 1) Heath v. PughL.R. 6Q.B.D. 
 345. 
 
 (e 1) See Harlock v. Ashberryh.B.. 
 
 For "discovery of the fraud (a) " substitute "the fraud has been, or 
 might have been, discovered («) (i) ; but this does not apply to concealment 
 without fraud (a 1)." 
 
 After line, add, as a new par., " One who enters, claiming under a 
 disposition by which only a partial interest was conferred upon him, 
 acquires title for himself during the continuance of that partial interest 
 only, and thenceforward for the next taker (g 1)." 
 
 To n. (a) add, "See Metropolitan L.J. Ch. 4." 
 
 p. 27, 1. 
 
 last line. 
 
 Notes. 
 
 To n (4) add, " and see Leigh v. 
 Jack L.R. 5 Q.B.D. 264." 
 
 Insert "(g 1) Board v. Board L.R. 
 9 Q.B. 48." 
 
 Bk. v. Heiron L.R. 5 Ex.D. 319." 
 
 Insert " (a 1) Bains v. Buxton 
 L.R. 14 CD. 537. And, as to conceal- 
 ment of the bastardy of one who 
 enters as heir, see r. Jennens, 50 
 
 After "necessary " insert "unless the running of the statute had been p. 28,/. 14. 
 caused by nonpayment of rent under a void lease, in which case it will 
 recommence on subsequent payment (a 1)." 
 
 After " and except " insert " that, as against a spiritual or eleemosynary ;. 21. 
 corporation sole, the period is — 60 years if that period outlast the sixth year 
 from the appointment of an incumbent on the vacancy next but one after 
 the accrual of the right, and the period ending with such sixth year if it 
 does not (d 1) ; and except." 
 
 After "mortgagee " insert " (d 1)" 
 
 After " trusts" insert " (g) " 
 
 Insert " (a 1) According to the 
 principle in Bunting v. Sargent L.R. 
 13 CD. 330, in which, however, 
 the rent seems to have been paid 
 within 21 years, so that the statute 
 could not have been running for 
 20." 
 
 To n. (b) add " explained as to 
 mortgagees, Kinsman v. Rouse L.R 
 17 CD. 104." 
 
 Insert " (d 1) 3-4 Wm. IV. c. 27, 
 s. 29, interpreted in Eccl. Commrs. 
 v. Rowe L.R 5 Ap. 736. 
 
 (d 2) Forster v. Patterson L.R. 17 
 CD. 132; Kinsman v. Rouse L.R. 
 17 C D. 104. 
 
 (0) 3-4 Wm. IV. c. 27, s. 25; 
 Banner v. Berridge L.R. 18 CD. 
 254 ; Seagram v. Tuck L.R. 18 CD. 
 296." 
 
 /. 23. 
 
 lust line. 
 Notes.
 
 ADDENDA ET CORRIGENDA. 
 
 p. 29, I. 8. 
 
 I. 17. 
 /. 18. 
 
 Notes 
 
 p. 30, 1. 10. 
 
 p. 31, I. 6. 
 
 I. 8. 
 
 I. 19. 
 
 Notes. 
 
 p. 33, Notes. 
 
 p. 34,^. 7. 
 p. 35, 2. 21. 
 
 /. 25. 
 
 Notes. 
 
 After line add, in new par., " And a person entitled to a reversionary 
 interest is barred immediately on the barring of the person entitled to the 
 preceding possessory interest if the reversionary interest was created after 
 the statute had commenced to run against the latter {b 1), and is, even in 
 other cases, barred within six years after his interest falls into possession, 
 unless the person entitled to the preceding possessory interest is in 
 possession at that time (J)." 
 
 After "enjoyed it" add "under such circumstances as to render it 
 actionable (e 1), or capable of physical interruption (c 2)." 
 
 After " (d) " insert "even though he or they did so under a claim not 
 capable of being sustained, as, that they were entitled as owners of some 
 manor (d 1), or under some decree (d 2)." 
 
 To n (b) add "And see Banner v. (c 2) Sd., S\ v. B. 
 Berridge L.R. 18 CD. 254." {d 1) Be la Warr v. Miles (last 
 
 Insert "(£ 1) 37-8, Vic. c. 57 s. 2." point) L.R. 17_CD. 584-5, 591 
 
 (c 1) Sturges v. Bridgeman L.R. 
 11 CD. 852. 
 
 (d 2) B. 1. W. v. M. p. 594." 
 
 After "time" insert "and, on the same principle, proof of lengthened 
 enjoyment of such an easement (a 1) as could not have been lawfully created 
 since some particular statute (for example, an exclusive right of fishing in a 
 navigable river, which cannot be conferred since Magna Charta (a 2) ) is 
 accepted as proof that the right has existed since before the statute (a 3). 
 
 Insert" (a 1) Defined ante, p. 8 n. (a 3) M. Saltash v. Goodman L.R. 
 
 (a 2) 9 Hen. III. c. 16, interpreted 5 CP.D. 431." 
 in Coke's 2 In. 30. 
 
 After" user" add " (b 1)." 
 
 After "easement" insert " has, imder such circumstances as to render it 
 actionable (c 1) or capable of physical interruption (c 2), been enjoyed." 
 
 Add " But of course enjoyment 
 reckoned (h 1)." 
 
 Insert "(£ 1) As to whether a right 
 to support is within this Act see 
 Ballon v. Angus L.R. 6 Ap. 798. 
 
 (c 1) Sturges v. Bridgeman L.R. 
 
 In n (a),l. 11 after " 3 Ves. J. 257" 
 insert " Baillie v. Treharne L.R. 
 17 CD., end of p. 390, citing 
 Caldwell v. Felloives, L.R. 9 Eq. 
 410. 
 
 In col. 2 I. 4 omit " not." 
 
 I. 5, after "female" insert "if it 
 be such as would, by the marriage, or 
 by that and some subsequent event, 
 become the property of the husband, 
 
 After "tenements" add "some of which can now, however, be converted 
 into freeholds ( — a)" 
 
 Insert " (— «) 44-5 Vic. c. 41 s. 65." 
 
 For "If* * * relations" substitute "In reckoning relationship 
 according to these rules, those (/ 1) and those only who are legitimate 
 by the law of the place of their birth are deemed legitimate. If there be 
 none such " 
 
 After "executor" add " (g 1)." 
 
 Insert "(/ 1) Re Goodman's Trusts 
 L.R. 17 CD. 266,296-8. 
 
 (g 1) As to what constitutes a 
 sufficient appointment, see gds. Bell 
 
 during unity of possession is not 
 
 11 CD. 852. 
 
 (c 2) Sd., S. v. B. 
 
 (h 1) Outram v. Maude L.R. 17 
 CD. 391. 
 
 Baillie v. Treharne L.R. 17 CD. 
 388; but not otherwise." 
 
 /. 6, after " 7 Eq. 518 add "Co. 
 Litt. 185 6;" 
 
 1. 13, after " Q.B. 474 " insert " as 
 to income by accrual, Walmsley v. 
 Foxhall, 40 L.J. Ch. 28." 
 
 1. 15, after "223" add " Bavies v. 
 Games L.R. 12 CD. 813." 
 
 L.R. 4 P.D. 85. 
 
 To n (h) add " As to persons dying 
 domiciled abroad, see Eames v. Macon 
 L.R. 16 CD. 407."
 
 ADDENDA ET CORRIGENDA. 
 
 After "in force " insert " with all the powers of an ordinary administrator P- 36, . 12. 
 (d 1)" 
 
 After "administrator" add (/l)." 
 To n. (a) add " gds. Hammond 
 L.R. 6 P.D. 104." 
 
 To n. {b) add " Gierke v. Clerke 
 L.R. 6 P.D. 103 ; to a Guardian, gds. 
 See L.R. 4 P.D. 86 ; to Trustees, 
 gds. Mayehell L.R. 4 P.D. 74; to a 
 Stranger, gds. Hastings L.R. 4 P.D. 
 73." 
 
 To n. (d) add " r. Cope L.R. 16 
 CD. 49." 
 
 Insert " (d 1) r. Cope." 
 
 To n. (/) add " 44-5 Vic. c. 49 
 (Irish tenancy) s. 14." 
 
 Insert " (/ 1) Gds. Bridget- L.R. 
 4 Q.B.D. 77 
 
 l. 21. 
 
 Notes. 
 
 After " (t) " insert "otherwise than by payment into court for safe p. 37, /. 18, 
 custody (i 1)" 
 
 After " however" insert " (»«)•" 
 
 Insert "(* 1) r. Knapman L.R. 
 18 CD. 305 /. 4-15 
 
 To n. (k) and 22-3 Vic. c. 35, s. 
 
 /. 25. 
 
 27-8" Notes. 
 
 Add " (m) See r. Morgan L.R. 18 
 CD. 93." 
 
 After " (a) " insert "and, when the executor is entitled to reimbursement p. 38, I. 1. 
 out of a portion only, confines them to that portion (a 1)" 
 
 After line subjoin " and also to make an underlease (e 1), but not to give I. 14. 
 an option of future purchase (<? 1)." 
 
 In n. (a) after " 338 " insert 
 "March v. Russell (extreme case) 3 
 M. & Cr. 31." And, at end of note, 
 add, " That the creditor's lien is 
 never greater than the executors, 
 Farhall v. Farhall L.R. 7 Ch. 123." 
 
 Insert " {a 1) Re Johnson L.R. 15 
 
 CD. 548." 
 
 (e 1) Oceanic S. JV Co. v. Suther- 
 buryL.R. 16 CD. 236." 
 
 To n. (/;) add " modified, Jones v. 
 Sutherbury L.R. 16 CD. 584." 
 
 To n. (/) add " modified in Farhall 
 v. Farhall." 
 
 Notes. 
 
 To n. (J) add " qualified by Eager Furnivall, in which it has been p. 44, Notes. 
 v. Furnivall L.R. 17 CD. 115." decided that he can." 
 
 To n. (m) add " and Eager v. 
 
 After "deceased " insert "including his burying place (b 1)" 
 Insert " (b 1) Matthews v. Jeffrey L.R. 6 Q.B.D. 290." 
 
 To n. (d) add " as to its meaning 7 Vic. c. 137 s. 50." 
 in case of charity trustees, see 16- 
 
 p. 45, Z. 4. 
 
 Notes. 
 
 p. 52, Notes. 
 
 For line 20 substitute " Any estate of inheritance or for life of another, p . 53, /. 20 
 in any hereditament which has been vested on trust or mortgage in one 
 who dies since 1881, devolves (as regards the legal estate and powers of dis- 
 position and the like) in the same way as a chattel (b 1). And, on the death 
 intestate between 1874 and 1882 of a " 
 
 After " 1876 " insert " [in Ireland 1881]." /_ 23 
 
 After line subjoin " on the death since 1881 of one against whose heir /' 34. 
 or devisee a contract is enforcible for the sale of a freehold interest 
 (descendible to the heirs generally) in a tenement, his personal representa- 
 tive can convey the legal estate (c 1) ; and " 
 
 Subjoin " Nor can the legal personal representative of a transferee (dying last line. 
 before 1882) of a mortgage convey or surrender as above (e 1)." 
 
 Insert " (b 1) 44-5 Vic. c. 41 s. 
 30. 
 
 (c 1) 44-5 Vic. c. 41 s. 4. 
 
 To n. (d) add " repealed as to 
 England by 38-9 Vic. c. 87 s. 48, and 
 
 as to Ireland by 44-5 Vic. c. 41 s. 
 73." 
 
 Insert "{el) Re Spradberg's 
 mortgage L.R. 14 CD. 514."
 
 ADDENDA ET CORRIGENDA. 
 
 p. 58, AWcs. 
 
 p. 60, /. 17. 
 I. 26. 
 
 Notes. 
 
 p, 61, Notes. 
 
 p. 67, 1. 11. 
 
 p. 69, Notes. 
 
 p. 70, I. 23. 
 1.25. 
 
 1.2K. 
 1.21. 
 
 1.31. 
 
 Notes. 
 
 After n. (a) "Accordingly, Parker v. Lechmere L.R. 12 CD. 257." 
 
 After " benefit " add " of her, or " 
 
 After " marriage " add " but the rule does not extend to property belong- 
 ing to the husband and wife by entireties (J 1 ) ; and if" And omit " If 
 however" 
 
 To n. (a) add " Lovell v. Newton 
 L.R. 4 C.P.D. 7, extended, Ashworth 
 v. Outram L.R. 6 CD. 759." 
 
 Insert "(J 1) Ward v. Ward L R. 
 14 CD. 506; r. Bryan L.R. 14 
 
 CD. 516." 
 
 In n. (k) I. 5, after " (e)." insert 
 ' ' And, as to life-interests, Taunton 
 v. Morris L.R. 11 CD. 779." 
 
 In I. 1 after "536" insert 
 "Knight v. Knight (which shews 
 that it is subject to any lien which 
 the disponor may have against the 
 husband) L.R. 18 Eq. 487 ; Carr's 
 
 trusts (past income) L.R. 12 Eq. 
 609." 
 
 Ton. (b) add " Coning ton v. Gilliat 
 46 L.J. Ch. 61 ; andobs. inr. Gowan 
 L.R. 17 CD. 778." 
 
 For "necessary" substitute "desirable." 
 
 Andsell L.R. 5 P.D. 138 and' 
 
 In n. (c), after "i 
 ' ' held retro-active in 
 
 5," insert 
 Andsell v. 
 
 Omit "upon the bankruptcy." 
 
 For "(subject * * * discussed" substitute "immediately on the 
 bankruptcy, and all to which he afterwards becomes entitled passes when 
 (i 1), but not until (i 2), the bankruptcy- trustees adopts the acquisition 
 (subject of course in either case to the rules stated") 
 
 Omit "to the bankruptcy-trustee." 
 
 After line subjoin " in case of the bankruptcy of Partners the separate 
 estate of each (i 3) ; and includes" 
 
 After "judiciary law " insert "allowances bestowed on the bankrupt for 
 his maintenance (m), and" 
 
 Insert " (t I) Accordingly, Meggy 
 v. Imperial D. Co. L.R. 3 Q.B.D. 
 711. 
 
 (■t 2) Morgan v. Knight 15 
 CB.N.S. 669 ; Herbert v. Sayer 5 
 Q.B. 965; Watson v. Roberts L.R. 
 12 CD. 380 ; Jameson v. Brick &c. 
 Co. Ld. L.R. 4 Q.B.D. 208. 
 Dewhurst v. Vanlohe L.R. 7 Ch. 
 
 185 ; Brittain v. Brown 24 L.T.N.S. 
 504." 
 
 (t 3) Philps v. Moore L.R. 19 Eq. 
 256. 
 
 To n. (J) add," and, as to rights of 
 action, see Etnden v. Carte L.R. 17 
 CD. 169." 
 
 Insert " (m) Wicks r. Wtcks L.R. 
 17 CD. 70." 
 
 p. 71, /. 2. 
 
 Notes. 
 
 p. 72, 1. 6 
 
 I. 10. 
 MS. 
 
 After " (a) " add "and damages which he may have recovered for a 
 personal wrong (a 1)." 
 
 In n. (a) prefix " Williams 
 Chambers 10 Q.B. 337, modified by" 
 and omit " See " and add to the note 
 " Emden v. Carte L.R. 17 CD. 
 768." 
 
 Insert " (a 1) Vine v. Wilson 
 L.R. 8 CD. 364." 
 
 To n. (b) add " see also Gt. Eastern 
 
 For "is entitled * * * property" substitute "acquires such 
 property equally with the other property of the debtor ( — o) but is entitled 
 to disclaim it (a)" 
 
 After " requires him " add " (a 1)." 
 
 After " disclaim" add " though not authorized by the court (a 1)" 
 
 $c. Co. v. Turner L.R. 6 Ch. 149. 
 
 To n. (i) add " 20-1 Vic. c. 60 s. 
 349 ; and, as to relation back Furber 
 r. Pellew L.R. 6 CD. 181 ; Eyles v. 
 Edwards L.R. 16 Eq. 99 ; Duignan 
 r. Bissell L.R. 6 Ch. 605 ; Todhunter 
 r. Norton 25 L.T.N.S. 313."
 
 ADDENDA ET CORRIGENDA. 
 
 Notes. 
 
 After " liabilities " insert " [e 1)" t. 17. 
 
 For "property * * * interest in it " substitute " the bankrupt's I. 19. 
 interest in the property (d) and that only (d 1)" 
 
 For "and the bankruptcy -trustee * * * estate" substitute " the I. 27— 33 last. 
 bankruptcy- trustee is personally liable (/), at least if he have entered (i), 
 unless he have disclaimed ; but of course he is entitled to reimbursement 
 out of the bankrupt's estate if his omission and entry were proper." 
 
 Insert " (i) This seems necessary according to a dictum in one case (/;), 
 but unnecessary according to another (i), in which, however (j), entry had 
 taken place." 
 
 ' 746. 
 
 Omit n. (g) . 
 
 Subjoin " (h) Dressier r. Solomon 
 L.R. 9 CD. 255. 
 («) W. v. W. 
 (/) W. v. W. p. 156,^. 8-9." 
 
 Wilson v. Wallani 
 
 Prefix "(- 
 L.R. 5 Ex. D. 155. 
 
 Insert " (a 1) Reed v. Harvey L.R. 
 5 Q.B.D. 184. 
 
 (c 1) Lowrey v. Barker L.R. 5 Ex. 
 D. 170. 
 
 (d 1) Walton r. Levy L.R. 17 CD. 
 
 For " precluded * * * entered " substitute " he is as fully precluded P- "3, / 1—2. 
 from disclaiming before as after entry (a)." 
 
 After (c) add "Of course a bankruptcy-trustee's disclaimer of a lease 114 
 belonging to a bankrupt who had sublet does not affect the interest of the 
 sub -lessee (c 1)" 
 
 Insert " (c 1) Smalley v. Eardinge L.R. 7 Q.B.D. 524." Notes. 
 
 For n. (g) substitute " See Coke's 
 Entries 2 b ; 1 Spence on Equity 
 242, last par. ; 2 Reeves' History of 
 
 After " so far" insert "(a 1) " 
 "Prefix (a 1) Morgan v. Simpson 
 
 the Law (2d. 
 Reeves' 182. 
 
 ed.) 508 sqq. ; 3 p. 75, Notes. 
 
 L.R. 2 CD. 72." 
 
 p. 78, 1. 10. 
 Notes. 
 
 After "(d)" add " And a Solicitor, impliedly representing that a leasehold p. 80, 1. 22. 
 which his client is mortgaging exists, and afterwards acquiring the property, 
 seems (d 1) bound to make good the representation. But a person deriving 
 under the representor is not bound by the representation, at least if he 
 derives by a dealing for value without notice of it (d 1)." 
 
 Insert " (d 1) See Keate v. (d 2) K. v. P. Notes. 
 
 Phillips L.R. 18 CD. esp. 576. 
 
 In n. (4), after " H.L.C 185" 
 insert " Alder son v. Madison L.R. 5 
 Ex. D. 293. 
 
 In n. (c) prefix " Bankart v. Ten- P- 82 > Notei - 
 nant L.R. 10 Eq. 141 ; Crook v. Sea- 
 ford L.R. 10 Eq. 678. 
 
 For " three " substitute " four (— -aV ' p. 84, l. 2. 
 
 For " and therefore * * * (e) substitute "(e), and money derivable /. 15. 
 under an insurance which the vendor has effected on the property against 
 fire is not considered incident to the property at all (e 1), and neither, 
 therefore, fall under this rule." 
 
 Prefix " ( — a) An admirable case Insert " (e 1) Rayner v. Preston Notes. 
 on this subject is Robertson v. Skel- L.R. 18 CD. 2, esp. p. 6." 
 ton 12 Bea. 260." 
 
 After "income)" insert "or begins to exercise acts of ownership (o 1), p. 89, /. 4. 
 though he derive no profit (a 1) )," 
 
 Alter "money" add "even on a compulsory purchase (b 1), in which 1.8. 
 case the moment when the jury assess the amouDt is deemed to be this 
 time (b 2)" 
 
 After " absolutely " insert " {d 1)" 1. 18.
 
 ADDENDA ET COKIUGENDA. 
 
 /. 31. 
 
 p. 90, Notes. 
 p. 98, /. 20. 
 Notes. 
 
 p. 9J, /. 21. 
 
 p. 99, /. 5. 
 I. 7. 
 „'. 10. 
 
 p. 103, Notes. 
 
 p. 104, /. 3. 
 I. 18. 
 /.JO. 
 
 After " (/)" subjoin " (i)." 
 
 Insert, " (i) Before the apportionment act a purchaser was entitled to 
 income from the next preceding quarter-day on sale of a tenement (/), or 
 the next preceding account day on sale of a business (</)." 
 
 G. t. PI. 180 ; Gowan v. lie/he ib. 
 163 ; and, as to a Mortgagee, Bates 
 v. Bonner 7 Sim. 427. 
 
 In n. (/) omit the last three lines. 
 
 Subjoin " (g) Wren v. Kirton 8 
 Vez. 5U2." 
 
 Insert " (a 1) Ballard v. Shult 
 L.R. 15 CD. 122. 
 
 (b 1) Pigott v. G. W.R. Co. L.R. 
 18 CD. 147. 
 
 (b 2) Re Eccleshill L. Bd. L.E. 
 13 CD. 365. 
 
 (d 1) Prendergast v. Eyre 1 L. & 
 
 In n. {b) prefix " Piggott&G. W.R. Co. L.R. 18 CD. 147." 
 
 After "beneficial interest" insert "and a disposition contrary to the 
 intention of the parties will be rectified (A)." 
 
 To n. (e) add " Coultivas v. Swan (in which probably the evidence 
 22 L.T.N.S. 539." would not have been thought suffi- 
 
 Subjoin " (A) Wehnan v. Welman cient but for the element of surprise) 
 L.R. 15 CD. 570 ; Lovesy v. Smith L.R. 15 CD. 655. 
 
 After " disponor" insert " and the same principle applies to a payment 
 which an execution-debtor makes to the sheriff's officer, until the creditor 
 assents to it (c 1) 
 
 L.R. 9 CD. 301." 
 
 To n. (d) add " and, as to Bills of 
 Exchange, Buchanan v. Findley 4 
 M. & R. 592." 
 
 To n. (c) add " and, when the 
 subject of the trust is a Bill of 
 Exchange, see Buchanan v. Findley 
 4 M. & R. 593. 
 
 Insert " (c 1) Brooke r. Hassall 
 
 After "reliance" add "(6 1)" 
 
 After " binding " insert " (i)" 
 
 After " (tf)" insert " and only if he intentionally disappointed them, and 
 so shewed a dishonest mind (d 1)" 
 
 Insert ' ' (i) It has been recently (i) laid down that five circumstances are 
 necessary to the enforcement of a representation. — These are substantially 
 (1) a belief in the representation ; (2) Acts in reliance (j) on it ; (3) 
 Knowledge on the representor's part that he is not bound otherwise than by 
 the representation to make good what is represented, (for " constructive 
 notice," that is, the means of knowledge, is not sufficient (k) ) ; (4) 
 Knowledge on the representor's part that the representee is deceived ; (5) 
 Inducement. It was also laid down (/) that constructive notice of the 
 untruth of the representation (being one of fact) does not preclude relief." 
 
 Insert " (b 1) Willmott v. Barber Insert" (d 1) Aldersony. Maddison 
 L.R. 15 CD. 105, I. 28-30." L.R. 7 Q.B.D. 174, compd. with 
 
 Ton. (c) add "Dashwood y.Jcrmyns 
 L.R. 12 CD. 776. 
 
 In n. (d) after " 2 Giff. 1 " insert 
 " compromised on appeal, as appears 
 from L.R. 17 CD. 365." 
 
 To n. {d) add " W. v. B., p. 106 
 /. 1. 
 
 In n. (d), I. 6, after "text," add 
 " but modified by Smith v. Capron 7 
 
 After " incurred " insert *' ( — a)" 
 After " inducement" insert " (a 1) 
 After "subject" ineert " (a 2)" 
 
 Loffus v. Maw 3 Gift'. 592. 
 
 (i) W. v. B., L.R. 15 CD. 105, 
 /. 25-p. 106, I. 7. 
 
 (j) W. v. B. p. 106 I. 21. 
 
 tk) W. v. B., p. 106, I. 26 sqq. 
 1) W. v. B., p. 106, I. 8 sqq. 
 
 Hare 191.
 
 ADDENDA ET COKRIGENDA. 
 
 Prefix " ( — a) See however on this 
 point Hall v. Betty 5 Sc. N.R. 509, 
 and the head "Executor" in 
 Fisher's Digest. And, as to the 
 amount of damages recoverable, see 
 Metcalfe v. Fowler 6 M. & W. 831, 
 and Hanslipv. Padwick 5 Ex. 615. 
 
 (a l)\Norris v. Jackson 3 Giff. 390. 
 
 [a 2) See Mart v. Mart L.R. 18 
 CD. 685, I. 15— p. 692, I. 2, and 
 the cases there cited." 
 
 To n. (b) add " And see r. King 
 L.R. 16 Eq. 521." 
 
 Notes. 
 
 To n. (A) add "L.R. 5 C.P.D. 348^.5-10." 
 
 Ton. (/) add "See Hob. 71." 
 
 Ton. (e) add " White v. Hunt 23 
 L.T.N.S. 559." 
 
 p. 107, Notes. 
 p. 108, Notes. 
 
 p. 109, (T. 14. 
 
 'but a retraction by letter does not I. 16. 
 after it is posted but before it is 
 
 Omit " or dropped into the Post " 
 
 For "or (e) posting" substitute 
 invalidate an acceptance occurring 
 delivered (e) " 
 
 For "not," substitute "not; — a new contract between the same parties 
 providing that, for the same consideration by which the previous contract 
 was supported, something of the same kind as was therein stipulated for 
 shall be rendered (g 1) and not providing that the previous contract shall 
 continue in force (g 2) ; — " 
 
 For "offeror," substitute "offeror; — " 
 
 After "offeree" subjoin " ; — " 
 
 After "acceptance" add "Hence, the death of a party to a contract 
 some of the terms of which were to be left to arbitration, occurring before 
 the award is made, terminates the contract (h 1)." 
 
 To n. (c) add " Figott # G.W.R. Insert " (g 1) Re Badeock (special 
 Co. L.R. 18 CD. 147. circumstances) L.R. 17 CD. 361. 
 
 I. 18. 
 
 U9. 
 I. 20. 
 I. 31. 
 
 Notes. 
 
 To n. (e) add " Byrne v. Van 
 Tienhoven L.R. 5 C.P.D. 344 ; contra, 
 see" 
 
 (g 2) Suggested L.R. 17 CD. 
 366, I. 17—20. [Vez. 240." 
 
 (A 1) Blundell v. Brettargh 1 
 
 p. 110, Notes. 
 
 To n. iff) add " somewhat qualified Q.B.D. 350." 
 by Stevenson v. JSfc. Lean L.R. 5 
 
 After " hold " insert " when the Crown is disponor (b 1) ; nor " P- HI. I- 10. 
 
 After " (c) " insert " Nor does it appear that a Married Woman who, as i- '9- 
 regards separate property which she is restrained from anticipating, dis- 
 affirms a covenant contained in a settlement made during her infancy, is 
 bound out of such restrained property to compensate the other parties 
 interested under the settlement (b 2)" 
 
 Insert " (b 1) Sd. Camming v. {b 2) Smith v. Lucas L.R. 18 CD. Notes. 
 Fletcher 2 J. & W. 337—45. 545—6." 
 
 After " (/) insert " unless his insanity consist merely in such delusions as P* 116 ' 
 do not impair his power of protecting his own interests (I 1)" 
 
 Insert " {1 1) Jenkinsy. Morris L.H. 14 CD. 674." Motes. 
 
 17. 
 
 To n. (c) add " and, as to the 
 kind of insanity which has this effect, 
 Smee v. Smee L.R. 5 P. D. 85." 
 
 To n. (e) add " Kingsman v. 
 
 Kingsman L.R. 6 Q.B.D. 122." p. 117, Notes. 
 
 To n. (/) add " See Jones r. Jones 
 L.R. 18 CD. 109." 
 
 For these lines substitute "or, (so far as chattels (b 1) are affected) be p- 118, J. 5-7. 
 made under a power {b 2) not exercised by will (b 3) ; or, (so far as chattels, 
 or, perhaps, other subjects (c) are affected,) be made under a power con- 
 ferred in terms indicative of an intention that it may be exercised during 
 infancy (c 1) and not exercised by will (b 3)." 
 
 App. 5.
 
 ADDENDA ET CORKIGENDA. 
 
 I. 10. 
 
 Notes. 
 
 p. 119, Z. 5. 
 
 /. 19. 
 
 I. 19-20. 
 
 Notes. 
 
 p, 121, Notes. 
 
 p. 121, I. 9. 
 
 Notes. 
 
 p. 120, Notes. 
 p. 127, Notes. 
 
 p. 128, Z. 17. 
 
 I. 18. 
 
 Notes. 
 
 p. 129, Z. 1. 
 
 Notes. 
 
 Add "or be (when the infant is a Married Woman) an authority to 
 sign &c. a deed, or do any act, on her behalf (d 1)." 
 
 To n. (i) subjoin " But Cotton L.J. dissented (n) from this doctrine, and 
 an appeal will probably be brought, unless the other ground (o) on which 
 the case was decided be thought conclusive. Besides, the doctrine will 
 probably be restricted to infants above the age of consent (p). The 
 reasoning of the court (q) is in some degree inapplicable to an unmarried 
 infant. An intention that the power should be exercisable during infancy 
 has been (r) imputed on slight grounds." 
 
 Insert " (b 1) Ee D'Angibau L.R. (d 1) 44-5 Vic. c. 41 s. 40. 
 15 CD. 244 I. 3-5, 246. (») D'A. p. 240-1. 
 
 {b 2) D'A. p. 232-5 (and else- (o) If A. p. 241-2, 243 I. 9, 246 
 where), overruling the opinion ex- I. 8. 
 
 (p) See Co. Litt. 78 b, 89 b, and 
 
 Harg. n. (6). 
 (q) D'A. p. 245. 
 (r) If A. esp. p. 235-6, 246-7. 
 
 pressed in Sugden on Powers (8th 
 ed.) 912, 178. 
 
 (b 3) 7 Win. IV- 1 Vic. c. 26, s. 7. 
 
 U> 4) Conceded, D'A., p. 235. 
 
 (c 1) Cardross's settlement ; D' A. 
 
 After line add in new par. "A married woman cannot, while under age 
 (a 1), waive her right (a 2) to a Settlement. And a married woman seems 
 (a 3) unable to disaffirm a "voidable contract made during infancy save as 
 regards her separate estate {a 4), though perhaps (a 3) her husband may do 
 so." 
 
 After " (e) " insert " and an infant may consent to a variation of invest- 
 ment by trustees {e 1)." 
 
 For "if these" substitute '' of the above." 
 
 {a 1) Shipway v. Ball L.R. 16 38L.T.N.S. 466. 
 
 Insert "(el) Cardross's settlement 
 L.R. 7 CD. 723." 
 
 To n. (h) add " See Jones r. Jones 
 L.R. 18 CD. 109." 
 
 on Surprise is Mason v. Armitaye 13 
 Ves. 25, indexed in the digests under 
 the head "Mistake." 
 
 CD. 376. 
 
 {a 2) Explained ante, p. 60." 
 
 Insert " {a 3) Smith v. lucas L.R. 
 18 CD. 544, I. 10-3. 
 
 After n. (<?) add "r. Smith's will, 
 
 To n. (a) add " lovesy v. Smith 
 L.R. 15 CD. 655." 
 
 To n. (b) add " an important case 
 
 After " not" insert " it seems." 
 
 To n. (d) add " which however To n. (e) add " And r. Breton's 
 
 seem to be set up again by r. King estate, L.R. 17 CD. 416, is also 
 
 L.R. 14 CD. 179." contrary." 
 
 To n. (i) add " Austin v. Mead Ch 30. 
 L.R. 15 CD. 651 ; r. Mead 50 L.J. To n. (k) add " see A. v. M. ; M. 
 
 To n. (c) add " as to disclaimer by Willani L.R. 5 Ex. D. 155." 
 a bankruptcy-trustee see Wilson v. 
 
 After " prodigal" insert " (d), or a person about to engage in business 
 (d I)," 
 
 Omit " (d)." 
 
 To n. (i) add " See, as to the L.R. 15 CD. 668." 
 form of the power of sale in a mort- To n. (f) add " And see Hchham 
 gage, CocJcburn v. Edwards (1st v. Burnett (a singular case) 21 W.R. 
 point) L.R. 18 CD. 449." 309." 
 
 Insert " (d 1) Henry v. Armstrong 
 
 After " (a)" insert " and Recklessness (which is presumed) on the pail 
 of a Sailor (a 1)." 
 
 Ton. (i) add "(*)."
 
 ADDENDA ET CORRIGENDA. XXXV. 
 
 Insert " (a 1) How v. Weldon 2 Add " (i) Accordingly, Judd v. 
 Vez. 518, 1. 10-1 ; Tayloi<rv.Bochfort Green 45 L.J. Ch. 108." 
 id. 281." 
 
 After " husband (g) " insert " paramour (y 1)" p. 132, 1. 21. 
 
 To n. (g) add " Bainbrigge v. Insert " (g 1) See Coulson v. Notes. 
 Browne L.R. 18 CD. 188." " Allison 2 D.G.J.F. 521." 
 
 To n. (g) add " Bainbrigge v. After n. (j) add " See Bainbrigge p. 133, Notes. 
 Browne L.R. 18 CD. 188." v. Br 
 
 After " of " insert " (c), or in paying off a charge upon (c 1)" p. 135, /. 6. 
 
 Insert "(5 2) lie LynalVs trusts L.R. 12 CD. 211." Nates. 
 
 In n. (a) after " H.L.C 338 " nation) L.R. 11 CD. 940." P- 136, Notes. 
 
 insert " Ghampncy v. Dareij (expla- 
 
 For "it" substitute "any separate property which she had when she p . 137, 1. 16. 
 made the contract (g 1) and was not prohibited from disposing of (g 1) and 
 has not disposed of (g 1)" 
 
 After " property " insert " and so she can confirm, and can as regards l. 22. 
 her separate estate disaffirm or partly affirm and partly disffirm, a voidable 
 contract which she made during infancy {j 1). But the confirmation only 
 extends to property which she could then bind by a fresh contract (j 1)." 
 
 Insert (g 1) Pike v. Fitzqibbon no specific lien accrues, Robinson v. Notes. 
 L.R. 17 CD. 454, overruling Flower Bickering L.R. 16 CD. 660." 
 v. Buller L.R. 15 CD. 665." Insert " (j 1) Smith v. Lucas (2d. 
 
 To n. (A) add " P. v. E. L.R. 14 and 3d. points) L.R. 18 CD. 531." 
 CD. 837 ; and, as to the rule that 
 
 After line add " can, whether under age or not, authorize any person to p 138) /. 3. 
 sign &c. a deed or do any act for her (« 1) ; and " 
 
 After line add " or consent to payment of the proceeds of it to her l. 12. 
 husband (/l)." 
 
 After " electing " insert " (/) or consenting (/ 1)." 1. 13. 
 
 After " in Court" add " and she may by accepting benefits under a settle- 1. 14. 
 nient become precluded from setting it aside (/ 1)." 
 
 After " of it" insert " And she may, by written (g 1) authority to her l. 16. 
 counsel (g 2), elect to have property sold under the Partition Act." 
 
 After " contracts " insert " (i 1)." I. 22. 
 
 Insert " (a 1) 44-5 Vic. c. 41 s.40. CD. 612. Notes. 
 
 {e 1) Wheeler 4 D. G.F.J. 540. (g 2) Crookes v. Whitworth L.R. 10 
 
 (/l) r. Smith's will 38 L.T.X.S. CD. 289. 
 466. (t 1) Bike v. Fitzgibbon L.R. 17 
 
 (g 1) Grange v. White L.R. 18 CD. 454." 
 
 After "(e) " add "and the court can, with her consent and for her benefit, p . 139, 1. 7. 
 bind her interests, even in property from anticipating which she is thus 
 restrained (el)" 
 
 After '• (J) " insert " or die intending to do so (t 1)," I. 14. 
 
 Insert "(el) 41-5 Vic. c. 41 s. " (i 1) Gds. of S. A. Cooler L.R. Notes. 
 39." 6 P.D. 34." 
 
 To n. (h) add " as to acknowledge- L.J.C.L. 32." p. 140, Notes. 
 
 ments abroad see r. Smith 50 
 
 After line add " But a Representation by a married woman respecting her »,. 14^ / 10 
 property binds it (d 1) though it be not settled to her separate use (d 1)." 
 
 Add " (g) " last line.
 
 ADDENDA ET CORRIGENDA. 
 
 Notes. 
 
 p. 143, Notes. 
 
 p. 147, I. 17. 
 
 Notes, 
 
 p. 156, Notes. 
 
 p. 
 
 157, 
 
 Notes. 
 
 p. 
 
 158, 
 
 1. 16 
 
 1. 
 
 25. 
 
 
 Notes. 
 
 
 P. 
 
 160, 
 
 Notes. 
 
 P. 
 
 163 Headline. 
 
 Notes. 
 
 
 p. 163, i. 15. 
 
 A T otes. 
 
 p. 169, /. 3 
 
 A'bies. 
 
 p. 170, JVotar. 
 p. 171, Notes. 
 p. 172,/. 12. 
 
 I. 16. 
 
 iVbfes. 
 
 Insert " (d 1) <S/;ar/? v. Foy L.R. 4 
 Ch. 35." 
 
 Ton. (e) add "qualified in National 
 
 In n. (d) prefix " r. 2)' Angibau 
 (2d. point) L.R. 15 CD. 241-2, 243, 
 
 After " posted " insert " (g), or arriving with the offeror after that time 
 (g 1), or not arriving with him at all (g 2) " After " too late " omit "(^)." 
 
 M. JBk. v. Hatjnes L.R 15 CD. 42." 
 Subjoin "(g) Davis v. Goodman L.R. 
 5 CP.D. 128." 
 
 246." 
 
 Insert " (g 1) Stevenson v. Me Lean 
 L.R. 5 Q.B.D. 350-2. 
 
 (g 2) Sd. L.R. 5 Q.B.D. 352, citing 
 
 To n. (e) add "South Essex, %c. 
 Co. L.R. 11 Eq. 157 ; Crouch v. 
 Credit Fonder L.R. 8 Q.B. 374. 
 See also Blaheney Ordnance Co. L.R. 
 3 Ch. 154; Gen. Estates Co. L.R. 3 
 Ch. 758 ; and Dixon v. Swansea, §c. 
 
 To n. (c) add " 44-5 Vic. c. 41 s. 10 
 which seems to be little more than 
 
 Byrne # Co. v. Leon §c. Co. 49 
 L.J.CP. 316." 
 
 Co. ; and, as modifying these, Natal 
 Investment Co. L.R. 3 Ch. 355 (criti- 
 cized in Higgins § Co. L.R. 3 Ex. 
 395) ; and, as inconsisentent with 
 them, Graham v. Johnson L.R. 8 Eq. 
 36." 
 
 an affirmance of preexisting law." 
 
 After " (i) " insert " restrictions which, however, do not extend to 
 covenants in leases made since 31st Dec. 1881 [i 1)" 
 After "(/)" add "at least in case of a Lease made 31 Dec. 1881 (i I)" 
 Insert "(i 1) 44-5 Vic. c. 41 s. 10" 
 
 To n. (c) add " Corder v. Morgan 
 (covenant by mortgagor to concur 
 
 After " XIX " add " (—a)" 
 Insert " ( — a) Hook v. Kinnear 3 
 Swan 417. 
 To n. (a) add " r. Empress, §c. Co. 
 
 in sale) 18 Vez. 344." 
 
 L.R. 16 CD. 125." 
 
 To n. (e) add "Lloyds v. Harper 
 L.R. 16 CD. 290." 
 
 After "me" insert "(i)" 
 
 Insert "(i) Since the above was written, a case (e) in which that (c) relied 
 on in the text was not cited has been decided on appeal, on two grounds, 
 both open to much doubt. The second amounts to this : — that a covenant 
 which an intending husband (in consideration of the marriage, which is 
 afterwards solemnized,) makes with his intended wife, that, if he survive 
 her, he will assign her choses in action to those who, if she had died intestate 
 absolutely entitled to it and a spinster, would have been entitled to it, cannot 
 be enforced at their suit. The court admitted that a declaration of trust to 
 the same effect would have been effectual. 
 
 Insert " (e) Re D' Angibau L.R. 15 CD. 241—2." 
 
 For "to bind the heirs (a)" substitute "(a) if made before 1881 (a 1)" 
 Insert " (a 1) 44-5 Vic. c. 41 s. 59." 
 
 To n. (e) add " 44-5 Vic. c. 41s. 11." 
 
 To n. (a) add " See Buxton v. Mutter L.R. 15 CD. 289." 
 
 After "(b) insert " save that, when it is contained in a lease made since 
 1881, the legal estate seems (b 1) unnecessary." 
 After " pay " insert "(or permit a distress for (c 1)" 
 Insert "(bl) 44-5 Vic. c. 41 s. 11" 327." 
 (c 1) Daniel v. Stepney L.R. 7 Eq.
 
 ADDENDA ET CORRIGENDA. 
 
 After "(b) insert " except it seems (b 1) when the covonant was contained P- 173 > '• 15 - 
 in a lease made since 1881." 
 
 Insert "(b 1) 44-5 Vic. c 41 s. 11." Notes. 
 
 To n. (/) add " Steele v. Mc Kinlay L.R. 5 Ap. 754." 
 
 p. 178, Notes 
 
 After " formalities" insert "(A 1)" p. 179, 1. 16. 
 
 Insert " (h 1) Loffus v. Maw 3 To n. (i) add "explained, as to Notes. 
 
 Giff. 592, and the cases which led to representation by an agent, Swift v. 
 
 the statutes cited in the next note. Jeivsbury L.R. 9 Q.B. 301." 
 
 After "Disposition" insert " of a Copyright ( — a) or" p. 180, 1. 1. 
 
 Prefix " (—a) Lei/land v. Stewart L.R. 4 Ch. 419" Aotes. 
 
 To n. (g) add "This rule was Ton. (A) add "Caw v. Hastings V- 181, Notes. 
 
 admitted,but practically contravened, L.R. 7 Q.B.D. 128." 
 
 in long v. Millar, L.R. 4 C.P.D. To n. (i) add "and see Shardlow 
 
 450." v. Cotterell L.R. 18 CD. 280." 
 
 Whittmg L.R. 10 CD. 619." p. 182 Notes. 
 
 To n. (*') add " Gds. Wilkinson 
 L.R. 6 P.D. 100." 
 
 To n. (b) add ""Property" 
 Shardlow v. Cotterell L.R. 18 CD. 
 280, and cases there cited. See also, 
 as to the consideration, Hall r. 
 
 After line, insert in new par., " And only if they be of a character not p. 188, /. 25. 
 readily explicable on any other assumption than that the contract relates to 
 the subject to which it is alleged to relate (/ 1)." 
 
 Insert "(i) Alderson v. Maddison L.R. 7 Q.B.D. 178 " Notes. 
 
 After line add, in new par., " And, by an extension of a principle already p. 189, last line, 
 (a) discussed, an informal, and even an unwritten, testamentary disposition 
 of the beneficial interest, is effectual (A), whether the intention that the 
 beneficial estate shall pass in some different way from the legal estate be 
 disclosed on the will (I) or not (mi), provided the legal estate be effectually 
 disposed of by the will (m), and the intention as regards the beneficial estate 
 be formed before the completion of the will («) and disclosed to the disponee 
 of the legal estate before the death (o) (whether before (p) or after (q) the 
 will). But it has been said (i) that in other cases part performance will not 
 take a case out of the statute of wills, and that, consequently, a partly 
 performed oral contract to leave by will is not enforcible (r), unless the acts 
 of part performance are such (s) as would cure the defect of indefinitive- 
 ness (t).~ 
 
 after " G.M.G. 356 ;" 
 r. Whitting L.R. 10 
 
 Inn. (b) 
 insert Hall 
 CD. 619." 
 
 Insert " (j) Ante, p. 165 n. (i). 
 
 (/t) Re Fleetwood L.R. 15 CD. 
 594. 
 
 (1) r. F. p. 607-8. 
 
 (m) Eiordan v. Banon 10 Ir. Eq. 
 649, and the result of the obs. in 
 McCormiek v. Grogan L.R. 4 H.L. 
 
 82. 
 
 (n) See r. F. p. 606 I. 32. 
 
 (o) McC. v. G. 
 
 (p) As in r. F., and in most of the 
 cases. 
 
 (q) Moss v. Cooper 1 J. & H. 367 
 
 (r) Alderson v. Maddison L.R. 7 
 Q.B.D. 181, I. 18-21. 
 
 (s) Loffus v. Maw 3 Giff. 592. 
 
 (t) See Ante, p. 99." 
 
 Notes. 
 
 p. 191, Notes. 
 
 To n. (i) add "And, as to a 27 "W.R. 410." 
 fiduciary's husband, see r. Pepper ell 
 
 To n. (a) add " Cane v. Allen 2 Dow 289." 
 
 Omit "or" p. 195, /. 3. 
 
 After " (d) " add "or the right to sue on an advantageous contract into t- 5 - 
 
 p. 192 Notes.
 
 ADDENDA ET CORRIGENDA. 
 
 Notes. 
 
 p. 196, /. 19. 
 
 Notes. 
 
 p. 199, Notes. 
 p. 200, I. 28. 
 Notes. 
 
 p. 201, Notes. 
 
 p. 202, Notes. 
 
 p. 206, Notes. 
 
 p. 207, Nates. 
 
 p. 203, 1. 3. 
 Notes. 
 
 p. 209, iVbtes. 
 p. 212, 2. 12. 
 
 Notes. 
 
 p. 213, iVofes. 
 p. 215, 1. 9 
 
 iYotes. 
 
 p. 217, Notes. 
 
 p. 218, Z. 11. 
 
 which he has hy his fiduciary position heen enahled to enter {d 1)" 
 Insert " (d 1) Whaky Bridge §c. Co. v. Green L.R. 5 Q.B.D. 109." 
 
 After line, subjoin, " and much less is he hound to give up a profit 
 derivable from a contract into which he had enured before he became 
 fiduciary, (as, the money on an Insurance which he effected against fire 
 before he contracted for the sale of the property to one who claims the 
 money on account of a fire which happened after the making of the contract 
 of sale (/ 1) (i), especially if it happened before the day fixed for completion 
 (/ 2), unless the money was annexed by contract to the estate, as by an 
 agreement that it should be expended in rebuilding (/3) ). 
 
 Insert " (i) A mention of the policy in the conditions of sale might be 
 held to imply a contract that the purchaser should have the benefit of it. 
 This would be consistent with (/ 1)." 
 
 Insert "(/l) Rayner v. Preston 37-8. 
 LE. 18 CD. 1, and, as to the (/3) Garden v. Ingram 23 L.J. 
 applicability of the 14 Geo. Ill c. 78 Ch. 478, explained L.R. 18 CD. 8." 
 see p. 7. To n. (g) add " Moore v. Clench 
 
 (/2) As in R. v. P. See p. 6, I. L.R. 1 CD. 447." 
 
 To n. (e) add " Pawson v. Brown L.R. 13 CD. 202." 
 
 After line add, " contracts in derogation of the Irish Land Act 1881 are, 
 in general, void (c 1)." 
 
 Ton. (c) add " Pawson v. Brown Insert " (c 1) 44-5 Vic. c. 49 s. 
 L.E. 13 CD. 202." 22." 
 
 To n. (/) add " and see Tenner v. Turner L.R 16 CD. 188." 
 
 To n. (d) add " Megson v. Hindle L.R. 15 CD. 198." 
 
 To n. (a) add " Rousillon v. Romillon L.R. 14 CD. 351." 
 
 Ton. (J) add "modified Seear v. Laivson L.R. 15 CD. 426." 
 
 To line add " So an assignment of a debt to the King is void (a 1)." 
 Insert " (« 1) 7 Ja. I. c. 15." as above." 
 
 To n. (c) add " extended 44-5 To n. (k) add " Nevill v. Snetting 
 Vic. c. 41 s. 10-2." (in which ihere were special circum- 
 
 To n. (d) and n. («) add "extended stances) L.R. 15 CD. 679." 
 
 To n. (g) add " and in NeviU v. SncUing L.R. 15 CD. 679." 
 
 After " (c) " insert " or stock-in-trade or the like coming in substitution 
 for that previously existing (e 1)." 
 
 Inn. (b) insert B 'elding v : Read 3 Andrade L.R. 14 CD. 318, with 
 H. & C 955." Leatham v. Amor 38 L.T.N.S. 785." 
 
 Insert " (c 1) compare Lazarus v. 
 
 To n. (d) add "Sugdenon Vendors (14th ed.) 717-8." 
 
 After " (e) " insert " even though the disponor's interest was but for the 
 life of another (in which case the first taker is no more entitled to bar the 
 shifting clause than he would be if the disponor had been owner in fee 
 (e 1) )." 
 
 Insert " (e 1) Re Barber's settled estates (1st point) L.R. 18 CD.624." 
 
 To n. (d) add " Astley v. Mickle- thwait L.R. 15 CD. 59." 
 
 After line add, " But it has been held (b 1), that a limitation in which 
 the alternative of the contingency happening after, as well as that of its
 
 ADDENDA ET CORRIGENDA. 
 
 happening before, the expiration of the preceding estate, is mentioned, will, 
 when the limitation is to a class, he construed as a limitation to two classes, 
 namely, those with respect to whom the contingency happens after, and 
 those with respect to whom it happens before, that expiration; and will, 
 therefore, as regards the former, be deemed a shifting clause." 
 
 Ton (a) add " Abbiss v. Bwrney Insert " (b 1) r. Lech mere § Lloyd N° ies - 
 L.R. 17 CD. 218 ; Astley v. Mickle- L.R. 18 CD. 524; contra, Bracken- 
 thwait L.R. 15 CD. 59.''' bury v. Gibbons L.R. 2 CD. 419." 
 
 To n. (a) add "It is said, in Co. 
 Litt. 27 a, n. 6, and in 1 Co. 137 b, 
 and in Eyres v. Falkland 1 Salk. 231, 
 
 to be valid. Of course it is allow- P. 221, Notes. 
 able in a Will, Wellington v. Wel- 
 lington 1 Bli. 645." 
 
 To n. ((') add " Bibbens v. Potter L.R. 10 CD. 733." 
 
 p. 222, Notes. 
 
 After line add " and it is certainly so when it is a chattel interest in a !>• 283 last hue. 
 merely beneficial estate (A). 
 
 Legal estates were also often extinguished by Merger ; but the technical 
 rules on this subject are now abolished (/)." 
 
 At end of n. (i) for " void (A)" substitute "perhaps (./) void, while the Notes. 
 difficulty is, whenever possible, evaded by construction (k). ,J 
 
 Subjoin " (h) Cadell v. Palmer 1 approved in Ghaston v. Seai/o L.R. 18 
 
 CD. 218, and in r. Wilkins id. 638, 
 but was contradicted ; and the 
 validity of the clause reestablished, 
 in Bubb v. Padwick L.R. 13 CD. 
 517. See also r. Chaston L.R. 18 
 CD. 218." 
 
 Insert (t (k) r. W." 
 
 CI. & F. 372. 
 
 (i) 36-7 Vic. c. 64 (E.) s. 25, 91 ; 
 40-1 Vic. c. 57 (I.) s. 28, 79." 
 
 Letter n. (h) as (j), and add to it 
 " contra Johnson v. Crook L.R. 12 
 CD. 639, which was acquiesced in 
 in r. CollinsonL.B,. 12 CD. 834, and 
 
 After "(#)" insert " and contingent Powers as freely exercisable (g 1) " p _ 225, 1. 11. 
 Insert "(a 1) Thomas v. Jones 1 L.R. 16 CD. 47, modified by r. Notes 
 D.G.J.S. 63. Parker id. 44." 
 
 To n. (i) add '' see also r. Burnt 
 
 Inn. (a) prefix "Emmet's Estate L.R. 13 CD. 484." 
 
 p. 2'2C, Notes. 
 
 For " members of a class " substitute " children of the testator." p. 229, 
 
 For "die * * * distribution " substitute " before the time appointed '.10. 
 
 for distribution die (c) without issue (c 1)." 
 
 Insert " (c 1) Necessary, see r. cases in the preceding note." Notes. 
 
 Parker L.R. 16 CD. 44, and the 
 
 8-9. 
 
 After " tenement" add " (/ 1)." 
 Insert "( /' 1) Comfort v. Brown, 
 L.R. 10 CD. 146, in which, how- 
 
 p. 232, 1. 7. 
 ever, the contention required the Notes. 
 same construction." 
 
 After " limitations " insert " made before 188'2." p. 234, 1. 16 
 
 For " is not necessary " substitute ''was unnecessary before. 1882, (for, I. 18. 
 
 since 1881 it has never been necessary when "fee-simple" or"feetail" is 
 
 used {d 1) )." 
 
 Ton. (b) add " Dilroiv v. Bane 3 Insert " (d 1) 44-5 Vic. c. 41 Notes. 
 
 Giff. 538 ; and see Bird L.R. 3 CD. s. 51." 
 
 214." 
 
 After " (g) " insert " (i)." p. 247, 1. G. 
 
 Insert " (i) This however may be doubtful, for a proviso contained in an Notes. 
 assignment of a leasehold, that if the assignee should cease to live on the 
 premises it should pass to another, is valid (t), though the right of residence 
 necessarily ceases on a-signment." 
 
 Insert " (t) Doe v. llawke 2 Ea. 481."
 
 xL 
 
 ADDENDA ET CORRIGENDA. 
 
 p. 249,^. 4. 
 
 I. 5. 
 Notes. 
 
 p. 250, Notes. 
 p. 252, Notes. 
 p. 253, Notes. 
 p. 254, Notes. 
 
 p. 257, /. 19. 
 
 Notes, 
 
 p. 258, /. 2. 
 J. 3-9. 
 
 iYbtes. 
 
 p. 259, Notes. 
 
 Notes. 
 
 p. 263, Notes. 
 p. 268, JVotes. 
 
 p. 269, Notes. 
 p. 270, J. 16. 
 
 After " Nor" insert " perhaps (6)" 
 
 Omit " for years (b) (i)" 
 
 Omit n. (i). 
 
 For n. (£) substitute " (b) Ante, p. 247 n. (t)." 
 
 In n. (c) prefix " Samuel v. Samuel L.R. 12 CD. 152." 
 
 In. n. (!>) for " 253 (>«) " sub- stitute " (J)"253 
 
 To n. (0 add " ^Mws v. J?i«wy L.R. 17 CD. 211." 
 
 To n. (i) add " unless it be to the parent, in which case it is construed as 
 contingent on there being no such issue (k 1)." 
 
 Insert " (k 1) Comfort v. Brown L.R. 10 CD. 146." 
 
 After " {d) " insert " (n.)" 
 
 In n. (i), 2d. and 3rd lines for " refused to take " substitute " in one case 
 (h) refused to take, and in another (i) took," After " born" omit " (h) " 
 and add " The former case (h) may however be also explained as merely 
 contradicting r. Ridley referred to in the next page, n. (£)." 
 
 Insert ' ' (n) This rule is often (j ) rendered inapplicable by a rule of 
 construction, by which a condition, worded as precedent (k), is construed as 
 subsequent (I), so that the limitation which was to take effect on breach of 
 the condition (m), and not that which was to take effect on fulfilment of it, 
 is invalid. 
 
 Wills 240 ; L.R. 5 Ap. 721,-30 
 (k) Defined ante, p. 224 (/). 
 (I) Defined ante, p. 225 (b). 
 (m) See below, 269 (a)." 
 
 end of n. (i)." 
 
 Insert " (61) Seemingly conceded, 
 H. v. W." 
 
 For n. (d) substitute " (d) Pearks 
 v. Moseley L.R. 5 Ap. 714. 
 
 Insert " (i) Cooper v. LarocheL.'R. 
 17 CD. 368. 
 
 (J) Ante,]>.227 (h,i) ; Hawkins on 
 
 For " And" substitute " But." 
 
 For these lines substitute " of course it does not (b) invalidate the 
 restraint as regards married women who are born before the settlement 
 (although merely described as members of a class so defined as to be capable 
 of including members who might be born afterwards, unless such members 
 are afterwards born (b 1) ). But the " 
 
 For n. (b) substitute ' ' (b) Herbert 
 v. Webster L.R. 15 CD. 610, over- 
 ruling, on this point, r. Ridley L.R. 
 11 CD. 645. See preceding page, 
 
 In n. (i) prefix " That is, a limitation made under a power or trust, and 
 so framed that it would be valid if contained in, the document by which the 
 power or trust was conferred or imposed, is not invalidated by the fact that 
 the power (though special) or the trust was so worded as to authorize also a 
 limitation by which the rule would have been contravened (c)." 
 
 To n. (c) add " contra, sd. Refers v. 435 I. 20-1, and implied in the cases 
 Lewis $-c. R. Co. L.R. 18 CD. cited below, p. 269 (A) -71 (*)." 
 
 Ton. (k) add " Abbiss v. Burney L.R. 17 CD. 230." 
 
 To n. (a) add Pearks v. Moseley v. Johnson (which turned on special 
 (in which a qualification is admitted) words) L.R. 18 CD. 441." 
 L.R. 5 Ap. 719 ; modified in Goodier 
 
 To n. (h, i, j) add " Peters v. sd., S. C on appeal, 18 CD. 431-3." 
 Lewes §c. R. Co. L.R. 16 CD 710, 
 
 After " (tn) " insert " and though undivided shares continue to exist in 
 the property (m 1) (i)"
 
 ADDENDA liT CORRIGENDA. 
 
 xli. 
 
 Omit " any 
 
 In n. (i) for " The * * 
 however, 
 
 To n. (e) add " Peters v. Lewes §c. 
 R. Co. L.R. 16 CD. 710." 
 
 Insert "(m 1) P. v. L. R. Co. (last 
 
 last line. 
 
 (on principle) " substitute " On principle, Notes. 
 
 point) ; and see Taite v. Swinstead 
 26 Bea. 529." 
 Omit n. (/;). 
 
 p. 271, /. 1-5. 
 I. 6. 
 
 1.7. 
 l.S. 
 
 1.9. 
 I. 10. 
 
 Omit " undivided * * * while." 
 
 For " ((/) " substitute " iii the property (a) or in any share thereof (&)." 
 And, after " whether" insert " such terminable interest." And for " («)" 
 substitute "(c)" 
 
 For " (/)" substitute " {d)" 
 
 For " being " substitute " it was." And for " (g) " substitute " (e) or a 
 feesimple, or perpetual, estate subject to a shifting clause (/) " 
 For " (a) " substitute " {g) " 
 
 After "Disability" insert "(which, of course, does not include the 
 status of a Married Woman whose separate property is in question (h). Nor 
 does it apply if the donee of the power was by the disposition directed to 
 divide the property amongst the parties entitled (;'), unless the direction was 
 presumably meant to be only in certain events (which have since become 
 impossible) made through the power (y)." 
 
 Subjoin " nor can it apply to powers which are only to arise (or which lastline 
 were conferred for a purpose which can only arise) after the fee or perpetual 
 interest has fallen into possession (k). 
 
 And another rule of corresponding character is that a power conferred 
 for fiduciary purposes is only exercisable within a reasonable period after 
 the time when it arises (#)." 
 
 contract (which, however, turned 
 partly on the opinion of the court 
 that there was a direction to sell) 
 L.R. 4 CD. 454 ; Trower v. 
 Kn ii/htley.'" 
 
 For n. (h) substitute " P. v. L R. 
 Co. 16 CD. 710, afterwards affd. on 
 different grounds," 
 
 Append " (i) Cooke's contract. 
 U) P. v. L. R.Co. 16 CD. 710 
 /. 26-7. 
 
 (k) P. v. L. R. Co. (1st point) 18 
 CD. 429." 
 
 (<*)■ 
 
 For n. (a) substitute what was n. 
 
 Notes. 
 
 For n. (b) substitute " Taite v. 
 Swinstead 26 Bea. 552 ; Trower v. 
 Knightley (in which minors were 
 interested in one share) 6 Madd. 
 134." 
 
 For n. (c, d, e) substitute what 
 were n. (<?,/, g). 
 
 For n. (/) substitute " Sd., Peters 
 v. Lewes §c. R. Co. L.R. 16 CD. 
 710 I. 26-7, and 18 CD. 433 last line 
 but two." 
 
 For n. ((/) substitute " Cooke's 
 
 For " or disposition (d) " substitute " disposition (d) or payment (d 1)." P- 280 > *■ 19 - 
 Insert " {d 1) Durrani v. Eccl. Commrs. 50 L.J. Ch. 30." ^' otes - 
 
 After " (g) " insert " and though the contract in question was made by p. 281, /. 15. 
 way of undertaking in court (g 1)." 
 
 After " knew" insert " (i) " fast line. 
 
 Insert " (i) Much less that it occurred without his knowledge, and was 
 caused solely by neglect on the part of the other party to look at the 
 description of the property (k 1)." 
 
 Insert " (g 1) Mullins v. Hoicell (k 1) Tamplin v. James L.R. 15 Notes. 
 L.R. 10 CD. 763. Ch. 215." 
 
 After "(h)" insert "or was made in favour of an officer of the law p. 232, 1. 8. 
 (as a bankruptcy-trustee (g 1) )." 
 
 App. 6.
 
 xlii. 
 
 ADDENDA ET CORRIGENDA. 
 
 Notes. 
 
 p. 285, Notes. 
 
 p. 286, 1. 20. 
 I. 22. 
 
 To (c) add " Hart v. Bart (as to 
 what covenants are usual in a separa- 
 tion-deed) L.R. 18 CD. 674-5, 
 694-6." 
 
 To (/) add " Daniell v. Sinclair 
 L.R. 6Ap. 190." 
 
 Ton. (d) add "As to representa- 
 tion arising from mistake in law see 
 
 Insert " (g 1) James r. Condon 
 L.R,. 9 Ch. 609." 
 
 To n. (k) add " but this is qualified 
 by tbe remarks in Guest v. Smythe 
 L.R. 5Ch. 551." 
 
 Saffron-Walden B.S. v. Rayner L.R. 
 14 CD. 412-3." 
 
 After " («»)" insert " (i)" 
 
 After line add " And a principal, shewing to one about to contract a 
 report from his agent, does not thereby undertake that a statement in it 
 (which for all that appears may be but supposition) is correct ( p) . And a 
 representee is entitled to damages only if the representation was, when 
 made and not merely when acted on (q), either false to the knowledge of 
 him who made it (r), or reckless («) ; and only if the representee was 
 deceived by it (t), and consequently («) acted to his own prejudice or 
 damage (v)." 
 
 Insert " (i) This does not apply to such a representation as merely 
 amounts to a contract, as, when a party, through his agent, undertakes that 
 a fact exists (w;) 
 
 To n. (e) add " Sd., Arkwright v. 
 Newbold L.R. 17 CD. 317-8." 
 
 To n. (o) add " Bear v. Stevenson 
 30 L.T.N.S. 177." 
 
 Insert "(p) Schroeder v. Mendl 
 37 L.T.N.S. 454. 
 
 (q) Sd., Arkwright v. Newbold 
 L.R. 17 CD. 329 I. 9-14; and see 
 
 ib., 325, I. 9-12. 
 
 (r) lb., p. 320, I. 19. 
 
 (s) lb., p. 320, I. 20. 
 
 (t) lb., p. 324-5, 328-9. 
 
 (w) lb., p. 328-9. 
 
 \v) lb., p. 320, I. 21-2. 
 
 (w) Eaglesfield v. Londonderry 26 
 W.R. 540. 
 
 p. 29,1,1. 7. 
 I. 20. 
 
 Notes. 
 
 p. 289, 1. 3. 
 p. 291, Notes. 
 
 p. 292, I. 5. 
 I. 12. 
 
 Notes. 
 
 After " only" insert "(e 1)" 
 
 After line add " and a member of a Company cannot recover damages 
 against the company while he remains in it (I 1 
 
 To n. (c) add " Schroeder v. Mendl 
 37 L.T.N.S., in which, at p. 454 
 fin., the doctrine is somewhat quali- 
 fied." 
 
 Insert "(cl) Accordingly McKensie 
 v. British L. Co. L.R. 6 Ap. 82." 
 
 For " is " substitute "as." 
 
 To n. (/) add Burgess's ease L.R. 
 15 CD. 5U7." 
 
 To n. (m) add ' ' But in Vorley v. 
 Cooke 1 Giff. 230 (which qu.) it was 
 held that a deed, procured from a 
 
 To n. {J) add "affd. on a some- 
 what different ground 26 W.R. 
 540." 
 
 Insert {I 1) Houldsivorth v. City of 
 Glasgow L.R. 5 Ap. 317." 
 
 man (who could read but did not 
 take the trouble to read it) by a 
 representation that its purport was 
 different from what it really was, 
 did not pass the legal estate." 
 
 After (/) " insert " an Abstract (/ 1)," 
 
 After "(/) )" insert " circumstances which (seemingly) are sufficient only 
 when the object is to invalidate a contract &c, or to obtain restitution 
 
 C/i)." 
 
 Insert "(/l) Clarke v. Hoskins 
 37 L.J. Ch. 561." 
 
 (j 1) Arkwright v. Newbold L.R. 
 17 CD. 301." 
 
 To n. (n) add " Anderson's case." 
 
 : Jones 
 
 Rimmer 
 
 To n. {a) add 
 L.R. 14 CD. 588." 
 
 Ton. (b) add "Anderson's case 
 L.R. 17 CD. 373." 
 
 To n. (e) add "Jones v. Rimmer."
 
 ADDENDA ET CORRIGENDA. 
 
 xliii. 
 
 For " But mere silence * * * afford" substitute " or perhaps in a 
 few othei exceptional cases. In other instances mere silence does not 
 afford" 
 
 After "(e)" insert " (i)." 
 
 Insert ' ' (i) The doctrine (j ) that a promisee may bo exonerated on 
 account of a representation which would not be sufficient to found a claim 
 for damages seems to refer to the point above (k) mentioned, or to a mere 
 misleading suggestion (/) as distinguished from a representation properly so 
 called." 
 
 To n. (c) add " Sd. Arkwright v. Append " (k) Ante, p. 292 (i, j 1). 
 Newbold L.R. 17 CD. 317-8, esp. {I) Ante p. 106 (d), 292 (A)." 
 329, I. 9-14." 
 
 After " (») insert " or to prevent such performance from being injurious 
 to the performer (i 1)." 
 In n. (i) for "evanese " substitute "evanesce." 
 Insert " (i 1) Below, p. 298." 
 
 p. 293, 1. 5-8. 
 I. 10. 
 
 Notes. 
 
 p. 295, /. 22. 
 
 Notes. 
 
 Ton. (c) add " But this principle In n. (d) for 
 was not acted on in Basevi v. Serra " xl." 
 14 Vez. 317." 
 
 substitute P- 29G > Notes - 
 
 After (h) add " And, since breach of a stipulation the performance of 
 which was intended to prevent a loss from resulting to the opposite party 
 exonerates him, the breach by a lessee of his coveiuvnts in the lease 
 exonerates the lessor from a covenant to renew for a term (A 1) ; 
 especially if the latter covenant be expressed as conditional on the fulfilment 
 of the former (h 2)." 
 
 Insert " (h 1) Bastin v. Bidwell 4 H.L.C. 565." 
 L.R. 18 CD. 238 ; Grey v. Friar (h 2) As in B. v. B., and G.v. F." 
 
 After " (d) " add " or to complete a contract (d i)" 
 Insert " (d 1) Twynam v. Hudson 4 D. G.F.J. 462." 
 
 For " if the period * * * proceed" substitute " if the latter have 
 shewn a disposition to delay ( p), or have refused to proceed (q), and (in the 
 former case) the time fixed be adequately distant (q 1)." 
 
 For n. (p) substitute " (p.) Green Insert " (q 1) [same as erased note 
 v. Sevin L.R. 13 CD. 599." (p), adding] G. v. 8. 
 
 After "(6)" insert "or (being intended lessee) had taken possession 
 {b 1)." 
 
 After " (ff)) " insert ", or (being intended lessee) had taken possession 
 
 Insert " (b 1) Shepheard v. Walker L.T.N.S. 940 ; Davenport v. Walker 
 L.R. 20 Eq. 659. 34 L.T.N.S. 168a, contrasting S. v. 
 
 (ff 1) Poivis v. Bynevor 35 W. 
 
 After line add " The breach of a promise whose performance is, by the 
 agreement, to be a condition precedent, exonerates him (p), though this 
 provision embraces also other promises whose performance cannot, from 
 their nature, be such (p)." 
 
 Subjoin " (;;) London Guarantee Co. v. Fearnley L.R. 5 Ap. 911." 
 
 After " party " insert " the breach of a covenant to settle property does 
 not exonerate the covenantee from a covenant by him to settle other 
 property (q) ; nor does " 
 
 Add '" (q) Jeston v. Key (in which irrevocable part of the consideration, 
 the court did not rely on the fact had been performed) L.R. 6 Ch. 
 that the marriage, which was an 610." 
 
 p. 298, 1. 28. 
 
 Notes. 
 
 p. 299, 1. 17. 
 
 p. 301, 1. 21-2. 
 
 Notes. 
 
 p. 303, 1. 8. 
 
 I. 14. 
 Notes. 
 
 p. 305 last line. 
 
 Notes. 
 
 p. 30G, last line. 
 
 Notes.
 
 xliv. 
 
 ADDENDA ET CORRIGENDA. 
 
 p. 309, I. 17. 
 
 Notes. 
 
 p. 311, Notes. 
 
 p. 312, 1. 9. 
 
 botes. 
 
 p. 314, Notes. 
 
 p. 3)6,/. 20. 
 
 Notes. 
 
 p. 327, Notes. 
 p. 328, I. 5. 
 
 I. 10. 
 iVoies. 
 
 p. 330, I. 3. 
 
 f. 13. 
 
 Notes. 
 
 After "(,/)" insert "(i)." 
 
 Insert " (i) But compensation for a representation that a right of way 
 existed, which representation an Auctioneer had (as the result of inference^ 
 made on behalf of the vendor after completion, was, refused, in a case (l) 
 in which the conditions provided against compensation for errors in the 
 particulars.'" 
 
 Add " (I) Brett v. Clowser L.R. 5 C.P.D. 386-90." 
 
 In n. (e) I. 3 for " g " substitute Endoioment L. Co. v. Griee L.R. 5 
 "/." Q.B.D. 121." 
 
 To n. (/, I, and r) add "Protector 
 
 After " granted " add " as to this rule (another applicable to leases being 
 stated further on)" 
 
 To n. (b) add Protector §c. Co. v. Grice L.E. 5 Q.B.D. 121." 
 
 To n. (d) add " The court of appeal 
 considered that Protector §c. Co. v. 
 Grice, (e, i, n, v) L.R. 5 Q.B.D. 
 592, fell under this head ; but queer e, 
 
 and see the reasoning in 5 Q.B. 121." 
 To n. (z) add "qualified, r. 
 Brown's Will (1st. point) L.R. 18 
 CD. 61." 
 
 Add " And breach of a condition in a lease or grant or underlease cannot 
 be taken advantage of until the lessor has served on the lessee a notice 
 specifying the breach complained of and requiring that it be remedied if 
 remediable and tbat compensation be paid for it, nor unless the lessee has, for 
 an unreasonable period after such notice, failed to remedy it if remediable, or 
 failed to pay compensation satisfactory to the lessor (h 1) ; and even when 
 such notice has been given and failure made the court may relieve on terms 
 (A 1). But these provisions do not apply to conditions for forfeiture on the 
 lessee becoming bankrupt, or parting with the possession, or the leasehold 
 being disposed of, underlet, or taken in execution, or (in a mining lease) for 
 forfeiture on omission to allow the lessor to make inspections and inquiries 
 (A 1)." 
 
 In n. (d) Burden r. Neil (1st 
 point, e, i, n, v) L.R. 16 CD. 675. 
 Insert "(A 1) 44-5 Vic. c. 41 s. 14 
 
 In n. (a) for "discussed" sub- 
 
 To n. (i) add Wallingford v. 
 Mutual Socy. 50 L.J.CL. 57 b, and 
 the important case of Union Bk. v. 
 Ingram L.R. 16 CD. 53." 
 
 stitute " discuss." 
 
 For "unpaid" substitute "in respect of unpaid purchase money (a) or 
 lessor in respect of an unpaid fine (a 1)" 
 " 'or a cargo (d 1)" 
 
 After line add 
 Insert " (a 1) 
 
 ham L.R. 6 CD 
 {d 1) Swan v. 
 
 D. 130." 
 
 Shepheard v. Beet- 
 597. 
 Barber L.R. 5 
 
 To n. '(/) add " Nives v. Nives 
 L.R 15 CD. 649. 
 
 To n. (n) add " Grice v. Richard- 
 son L.R. 3 Ap. 319." 
 
 Subjoin "and one who lias purchased a snare in a particular business is 
 entitled to this lien on the entirety (ol); and, of course, a lien cannot be 
 claimed for damages for breach of the contract, for that would be incon- 
 sistent with rescis>ion (c 2)." 
 
 Subjoin "and Beneficiaries, whose fiduciary is indebted to the trust-fund, 
 are entitled to a Hen for that debt upon any lien which he may have on the 
 fund, — for example, a testator's estate is entitled against an executor so 
 indebted to a lien upon that lien which the latter has for costs (m 1)." 
 
 Insert " (c 1) Mycock v. Beatson (h, k) 1 D. & Ch. 120, qualified by 
 
 L.R. 13 CD. 384. 
 
 (c 2) Wilson v. 
 CD. 2, 31. 
 
 In n. (e) insert ' 
 
 Church L.R. 13 
 Turpin r. Br<n 
 
 Jlallett v. Hallett L.R. 13 CD. 232.' 
 Insert " (»« 1) Smith v. Bale 
 L.R. 18 CD. 516."
 
 ADDENDA ET CORRIGENDA. 
 
 xlv. 
 
 After " him " insert " (not including a general subagent (o 1) )," 
 Insert " (o 1) New Zealand $c. Co. v. Watson L.R. 7 Q.B.D. 374." 
 
 For ", and his own" substitute " of two beneficiaries." 
 
 For " the " substitute " each." 
 
 Add " a rule which, however, does not hold as between one beneficiary 
 on the one hand and the trustee or his general creditors on the other (/). 
 
 Subjoin " But, if he is authorized to sever and does sever a specific part 
 of the fund from the rest, his lien for subsequent expenditure in respect of 
 that part is confined to that part (A)." 
 
 To n. (a) add " FLalletCs estate 
 
 p. 331, 1. 24. 
 Notes. 
 
 p. 332, /. 18 
 J. 20. 
 I. 23. 
 
 I. 27. 
 
 772." 
 
 (k) Frazcr v. Murdoch L.R. 6 Ap. 
 855. See, as to executors, ante, p. 
 37 (A, t)." 
 
 L.R. 13 CD. 696. 
 
 Insert " (j) MalleWs estate, over- 
 ruling on this point Fennell y.Deffell. 
 See also r. Dale # Co. L.R. 11 CD. 
 
 Add "And an Executor, who has successfully defended against the 
 tees and next of kin an action which they had brought to obtain 
 revocation of the probate and who has become entitled to his costs against 
 them, has this lien on their legacies and shares (« 1)." 
 
 Add " except as against a prior mortgagee (h 1)." 
 
 Insert " (a 1) r. Knapman L.R. 18 (h 1) Landowners §c. Co. v. Ash- 
 CD. 300.-6, I. 2-6 ; see, for the con- ford (3d. point) L.R. 16 CD. 411." 
 verse case, ante, p. 333, I. 16." 
 
 Add ' ' Crown debts, created or acknowledged by deed or by some higher 
 mode such as judgment or recognizance, are charges on all hereditaments in 
 which the debtor has an inheritance and bind the heirs and issue in tail even 
 though the heirs be not expressed to be bound (g 1)." 
 
 Insert " (g 1) 39 Hen. VIII. c. 39 3-4 Vic. c. 105 s. 21." 
 
 Notes. 
 
 I, 
 
 333, 
 18. 
 
 I. 
 
 1. 
 
 Notes. 
 
 
 
 P. 
 
 334, 
 
 1. 
 
 14. 
 
 75-6, extended by s. 80, but 
 modified by s. 78, and, as to 
 Lancaster, by s. 81. The sale is 
 regulated by 25 Geo. III. (E.) c. 35, 
 extended by 28-9 Vic. c. 104 (E.) s. 
 50, and, as to grants in custodiam in 
 Ireland, by 5-6 Win. IV c. 55. See 
 
 To n (1) add " 4 Stephen's Comm. 
 662-7." 
 
 To (m) add " The 29 Ch. II c. 3. 
 s. 16 [also numbered as 17] is 
 repealed by the 44-5 Vic. c. 59. And 
 see, as to the priority of purchasers 
 for value, 19-20 Vic. c. 97 s. 1. 
 
 Notes. 
 
 After " (/) ; insert " and not against mortgages or securities on tene- 
 ments in Ireland (/ 1) ;" 
 
 After " purchased " insert "by the debtor" 
 
 Add in new par. "A judgment- creditor who has attached a debt which 
 is secured by mortgage is not entitled to the benefit of the mortgage (Jl)." 
 
 After " for " insert " (o) and on the credit of (j»)" 
 
 To n. (d) add " Evans r. Wathvns W.R. 164) ; and compare Mildredv. 
 
 Austin L.R. 8 Eq. 200 with Baity' s 
 Trusts 38 L J. Ch. 237. 
 
 Insert "(/ 1) 13-4 Vic. c. 29 s. 
 12." 
 
 (j 1) Chatterton v. Watney L.R. 
 17 CD. 259." 
 
 Insert as (o) the note which now 
 appears in p. 336 as (a). 
 
 Insert " (p) Re Mason $ Taylor 
 L.R. 10 CD. 729." 
 
 p. 335, 1. 13, 
 
 l . 14. 
 1, 19. 
 
 last line. 
 l\otes. 
 
 L.R. 13 CD. 252 ; Champneys v. 
 Burland 23 L.T.N.S. 584; Johnson 
 v. Burgess (sequestration-creditor) 
 LR. 15 Eq, 398; which compare 
 with Bush, L.R. 10 Eq. 442; South 
 L.R. 9Ch. 369; Ration v. Haywood 
 L.R. 9 Ch. 229 ; Newcastle v. Fad- 
 wick (equitable leasehold) 39 L.J. 
 Ch. 68 ; Beckett v. Buckley (modify- 
 ing the act) L.R. 17 Eq. 435, (which 
 compare with Cork v. Bussell, 20 
 
 After line add ' ' The estate of a testator is entitled to a Hen on each p. 336, 1. 15. 
 Legacy for any sum which the legatee owes to the estate {J 1)."
 
 xlvi. 
 
 ADDENDA ET CORRIGENDA. 
 
 Notes. 
 
 p. 337, I. 17. 
 
 Notes. 
 
 p. 338, 1. 14. 
 
 I. 21. 
 
 Notes. 
 
 p. 339, I. 2 
 
 I. 4. 
 
 Notes. 
 
 p. 340, Notes. 
 
 p. 341, I. G. 
 
 Notes. 
 
 p. 342, iVotes. 
 
 p. 344, Notes. 
 p., 345, 7. 20 
 
 last line. 
 
 Notes. 
 
 p. 346, I. 3. 
 
 I. 23. 
 
 To n. (//) add " explained also in and, independently of the act, Hamer 
 
 Jones v. Frost L.R. 7 Ch. 773, v. Giles L.R. 11 CD. 942." 
 Baile v. Baile L.R. 13 Eq. 497, Insert "(Jl) Sd.,r. Knapman L.R. 
 
 Smithy. Winter L.R. 18 "W.R. 447, IB CD. 304, Z. 33-4." 
 
 After " for both " insert "This rule is, however, inapplicable to mort- 
 gages either of which has been made since 1881 (e 1)." 
 Insert " (e 1) 44-5 Vic. c. 41 s. 18." 
 
 After " (*)" insert "and only if default has been made in paying at the 
 time appointed the meney secured on the property to which the other debt 
 is sought to be extended (i 1)" 
 
 After " (»)" insert " nor if the mortgaged interest in the property from 
 which the incumbrance is sought to be extended ceased before the attempt 
 to consolidate (w 1) ;" 
 
 Ton. (g) add " extended by dictum L.R. 14 CD. 699." 
 in Cummins v. Fletcher L.R. 14 CD. (n 1) Raggett v. Williams L.R. 16 
 710, I. 9-26." CD. 117." 
 
 Insert "(i 1) Cummins v. Fletcher 
 
 After "(«);" insert "nor (it seems) if the latter mortgage is made by 
 some only of the persons who made the former, though the latter had, 
 meanwhile, become trustees for them all (a 1)." 
 
 After line subjoin "nor if purchased Landtax be the incumbrance in 
 question (b 1)." 
 
 Insert " (a 1) Sd., Raggett v. 
 Williams L.R. 16 CD. 119; see 
 ante, p. 338 («")." 
 
 To n. («) add " Boursot v. Savage 
 L.R. 2 Eq. 140." 
 
 After " disponee " insert " (a 1)," 
 
 Insert " (a 1) McNeill v. Cahill 
 
 (3d. point, as to Registration) 2 Bli. 
 
 (b 1) Cox v. Coventon 
 378." 
 
 31 Eea. 
 
 To n. (g) add "Brookes 
 Harrison 6 L.R. Ir. 332." 
 
 228, modified in Richards v. James 
 L.R. 2Q.B. 291." 
 
 To n. (b) " and see V. & B. 203, and authorities there cited, especially as 
 to real actions." 
 
 To n. (J) add " Berry v. Gibson L.R. 8 Ch. 747." 
 
 After " (k) " insert " or that of an executor (under the doctrine already 
 (k 1) stated) for costs which he may incur in defending a groundless action 
 which the legatees and distributees have brought against him (k 2)," 
 
 After " (I) " insert "or that of one who holds a security for future 
 advances to enforce it as regards advances which he makes after and without 
 notice of the disposition (»*)." 
 
 To n. (c) add "r. Morgan L.R. 18 
 CD. 93." 
 
 Insert " (k 1) Ante, p. Ad. 333." 
 
 (k 2) r. Knapman L.R. 18 CD. 
 300." 
 
 To n. {I) add " sd., i 
 L.R. 18 CD. 307, l 17-21." 
 
 To n. {m) add ' 'assumed in London 
 §-c. Bk. v. Ratcliffe L.R. 6 Ap. 722. 
 
 After " incumbrance," insert " or that of a beneficiary whose fiduciary is 
 indebted to the fund to a lien on any lien -which that fiduciary may have on 
 the fund (6 1) (i) ;" 
 
 After line subjoin " Nor does it apply to a Personal Equity, such as the 
 right of a representatee to have the representation (for example, a repre- 
 sentation that a mortgage to the representee is valid (h 1),) made good; 
 even though the means of making it good come to the representor before he
 
 ADDENDA ET COKRIGENDA. xlvii. 
 
 makes the subsequent dealing for value (A 1). And the Lord of a Manor 
 can exercise his right of enclosing part of the waste even against one to 
 whom he has granted commonable rights ; for the latter rights are, by 
 implication, subject to the former (A 2)." 
 
 Insert " (i) Consequently, Coexecutors ought to employ distinct Solicitors, Nates, 
 for, if they employ the same, and one of them becomes insolvent while 
 indebted to the testator's estate, the other must pay the costs of both, but 
 can only claim reimbursement subject (as regards half his claim) to a set-off 
 of the debt which the insolvent one owes to the fund (£)." 
 
 Insert " (b I) Smith v. Dale L.ll. (A 2) Lascelles v. Onslow L.R. 2 
 18 CD. 516. Q.B.D. 452-3. 
 
 (h 1) KeaU v. Phillips L.R. 18 (/; 1) See S. v. D. p. 518, 1.27-9." 
 CD. 560; ser ante, p. Ad. 80 (d). 
 
 To n. (I) add " Hodgson v. Murray 2 Sim. 515." p. 348, Notes. 
 
 After " even" insert " (it seems (d 1) )." P- 349, 1. 9 
 
 Insert " {<l 1) This was questioned substitute " Jennings v. Jordan (in Notes. 
 in Jennings v. Jordan L.R,. 6 Ap. which Lord Blackburn traces the 
 701, I. 28 — p. 702, I. 10." rule and cites numerous cases) L.R. 
 
 In n. (k) for " Mills * * * 639" 6 Ap. 698." 
 
 To n. (/), add " St. George's estate 3 L.R. Ir. 277 " p. 351, Notes. 
 
 In n. (i), I. 5, for "is" read "states." p. 358, Notes. 
 
 After " Commissioners " insert " and from them ( — a) to the Irish Land p. 364, 1. 3. 
 Commission ;" 
 
 After line add " The Land Commissioners in Ireland can make advances last line. 
 to tenants there, purchase, sell, and grant in fee farm (p)." 
 
 Insert "(a 1) 44-5 Vic. c. 71. 35-6." Notes. . 
 
 {p) 44-5 Vic. c. 49 s. 24, 27-31, 
 
 After line add " The Postal Authorities are authorized (a 1) to acquire p 3G5) j 2 . 
 
 and dispose of lands." 
 
 After "(w) ;" insert "to sell land freed from (« 1), or declare it free from ^_ 2 3. 
 
 (ii 2), incumbrances;" 
 After line add " and to bind (for her benefit and with her consent) the /^ /,- Me> 
 
 interest of a married woman restrained from anticipation (>")." 
 
 Insert " (a 1) 3-4 Vic. c. 96 s. 41." Notes 
 
 67 ; 26-7 Vic. c. 43 ; 44-5 Vic. c. Insert " (» 1) 44-5 Vic. c. 41 s. 5 
 
 20." (I). 
 
 To n. (£) add "44-5 Vic. c. 41. s. {n 2) s. 5 (2)." 
 
 25 ; and see s. 70 (1)." In n (?) for " 13 CD. 223 " sub- 
 
 To n. (w) add " extended to In- stitute " 15 CD. 165." 
 
 fants' estates by 44-5 Vic. c. 41 s. Add "(»•) 44-5 Vic. c. 41 s. 39." 
 
 Ton. (h) add "extended in Clover v. Adams, L.R. 6 Q.B.D. 622." 
 
 For " of hereditaments to sell («)" substitute "to sell, (e) insure, (e) ap- 
 point receivers (e), give receipts (e 1), and leases (e 2) ; and mortgagor's to 
 lease (e 1)" 
 
 After line subjoin " and various persons to appoint New Trustees (k 1). 
 
 In.n. (e) prefix " 44-5 Vic. c. 41 35-6." 
 s. 19, 20, 23-4 ;" Insert (A 1) 44-5 Vic. c. 41 s. 31, 
 
 Insert " (e I) 44-5 Vic. c. 41 s. 22. and see s. 32-4 " 
 
 (e 2) s. 18." To n. (/) add "r. Dicconson L.R. 15 
 
 To n. (/) add "44-5 Vic. c. 41 s. CD. 316." 
 
 After "(&)" insert " for open spaces in the Metropolis (k 1)," p. 368, i. 9. 
 
 p. 366, 
 
 Notes. 
 
 p. 367, 
 
 1. 6-7. 
 
 /. 13. 
 
 
 Notes. 

 
 xlviii. 
 
 ADDENDA ET CORRIGENDA. 
 
 til. 
 
 Notes. 
 
 p. 369, I. 4. 
 (7. 
 
 Notes. 
 
 p. 373, I. 16. 
 p. 374, Notes. 
 
 p. 375, Notes. 
 p. 380, iVofes 
 p. 381, Notes. 
 
 p. 389, 1. 2. 
 
 Notes. 
 
 p. 392, I. 3. 
 t 11-2. 
 
 Notes. 
 
 p. 393, J. 12. 
 
 iVbtes. 
 
 After "(w)" add "to make leases for Schools in Ireland (m I) ;" 
 
 In n. (a) I. 6, after " s. 48 " insert 5 Vic. c. 34. 
 " 42-3 Vic. c. 25 (dispensaries in (m 1) 44-5 Vic. c 65." 
 Ireland) s. 6-7." To n. (p) add "44-5 Vic. c 49 s. 
 
 Insert " (k 1) 40-1 Vic. c. 35 ; 44- 25." 
 
 After " (b) " insert " to exercise various other powers (b 1) ; " 
 
 Subjoin " And owners of Rent-charges may lease the land to a trustee to 
 raise, by sale mortgage or sublease of the leasehold interest or otherwise, the 
 charge (/ 1). And anyone interested in land which is subject to a rent may 
 redeem the rent under circumstances (/ 2). And persons acting under, or 
 dealing with those who are acting under, a power of Attorney, are under 
 circumstances, protected (/3)." 
 
 Insert " {b 1) 44-5 Vic. c-49 s. 23 (/2) s. 45. 
 25. (/3)s. 47." 
 
 (/I) 44-5 Vic. c. 41 s. 44 (4). 
 
 For "earlier" substitute " later." 
 
 In. n. (b), after " 20 Eq. 194," 16 CD. 176." 
 insert " Clarke v. Chamberlin L.R. 
 
 For " LI " substitute " L." 
 
 To n. (k) add ' ' and see r. 
 
 L.R. 18 CD. 84." 
 
 Ton. (b) add "Payne v. Compton Ad. 170-2; Green v. Ingham L.R. 
 2 Y. & C 457 ; and, as to the Legal 2 CP. 525." 
 right, Harrington v. Price 3 B. & 
 
 After line add "and whether it be situate in England (e 1) or in Ireland 
 
 (e 1)." 
 
 To n. (d) add " Newton r. Bunyard actively repealed by the 38-9 Vic. c. 
 
 L.R. 16 CD. 330." 87 (E.) s. 129, and 44-5 Vic. c. 41 
 
 (e 1) For the 37-8 Vic. c. 79 s. 7, (I.) s. 73." 
 
 which enacted the contrary, is retro- 
 After " (b) " insert " Liquidation (b 1)." 
 For " and possibly " substitute " but not (b 1)." 
 Insert " (b 1) Palmer v. Locke point. 
 
 L.R. 18 CD. 381, affd. on another 
 
 Subjoin "And priority can be thus gained though only a fraction of a 
 day intervene between the rival notifications to the holder (d l). u 
 
 To n. (II) subjoin "Another case (p) seems to imply that corporal 
 chattels are not within this, or any similar, principle." 
 
 Insert " (d 1) Sd., Johnstone v. (p) Ex. Allen L.R. 11 Eq. 211." 
 Cox 43 L.T.N. S. 692a. 
 
 p. 395, last line. Omit " made since 7th August 1874 (k), or was " 
 Notes. Omit n. (k). 
 
 p. 397, I. 14-5. For " (/) ) ; or disposed of" substitute " ( f ), — at least if, immediately 
 
 on being so acquired, it passed by estoppel ( / 1) to the party who relies on 
 it, and the beneficial interest which that party seeks to establish consisted 
 merely in a personal right to compel one who had made a representation 
 (/ 2) to him respecting the property to make it good (/3), and, so con- 
 sisting, did not bind the land in the hands of a subsequent purchaser (/3), 
 — an exception which holds even though the representee had acted in 
 reliance on the representation, and had done so in good faith and without any
 
 ADDENDA ET COKRIOENDA. 
 
 xlix. 
 
 other negligence than that he had in accordance with usage omitted on 
 purchasing a leasehold the subject of the representation to investigate the 
 title of the lessor under whom it was held, — ami though the beneficiary 
 upon trust for whom the property was acquired was himself party to and 
 bound by the representation, — and though the act done in reliance on the 
 representation consisted in advancing money on mortgage of the property, 
 the representation being that the representor was owner; — and, conse- 
 quently, while the beneficiary himself would have been bound to make good 
 the representation, a subsequent purchaser from him for value without 
 notice of it takes priority (/ 2) ). Nor probably can priority be thus gained 
 if the legal estate was acquired by a disposition made" 
 
 Insert "(/l) Explained ante, p. d 2). Notes. 
 
 78, 80. ( / 4) On all these points, Keate 
 
 if 2) Explained ante, p. 78. v. Phillips L.R. 18 CD. 560, 577, 
 
 (/ 3) See ante, Add. p. 80 (d 1, I. 28-33." 
 
 Subjoin " Nor can priority be thus gained over a right which the holder, P- 398 l,nt l ""- 
 before he knew of the transfer, had against the fund ( p) . Nor can it be 
 thus gained in respect of accruing profits, over one who, for value and with- 
 out notice, acquired the legal estate in the subject whose profits are in 
 question (y), though the profits themselves be clearly choses in action, for 
 example, freight earned by a ship which has been legally mortgaged (q)." 
 
 Add"(j») Roxburghe v. Cox L.R. L.R. 7 Ch. 507; Wilson v. Wilson Notes. 
 17 CD. 526. L.R. 14 Eq. 32" 
 
 (q) Liverpool M.C. Co. v. Wilson 
 
 To n. (g) add " admitted, Shrop- 
 shire $c. v. Queen L.R. 7 Ap. 498 n., 
 
 505, I. 4-6. 
 
 To n. (») add " And see 3 D.G.F. J. 331, I. 28-p. 332, I. 7." 
 
 p. 40 i, Notes. 
 
 p. 413, Notes. 
 
 After "(/)" insert "satisfaction of Mortgages (/ 1)." p. 414, i. 15. 
 
 Insert "(/ 1) 7 Ann c. 20 (Mid- Ann c. 62 (Ruff. c. 35) (East and -Vote, 
 dlesex) s. 16 ; 6 Ann c. 20 (Ruff 5 "West Ridings) s. 27 ; 8 Geo. II. c. 
 Ann. c. 18) (West Riding) s. 10; 6 6 (North Riding) s. 32." 
 
 After "(i) " insert "a Ship (i 1) (unless registered)," 
 Insert " (* 1) Hooper v. Gamrn L.R. 2 Ch. 290-1." 
 
 To n. (a) add, "London §c. Bk. Ad. p. 345." 
 v. Ratclijfe (1st point) cited also ante, 
 
 After " only (d) ),"' insert " nor expressly (d 1) redeemable (d 2) ) " 
 After line subjoin " circumstances equally necessary to the maintenance 
 of an action against the party liable to satisfy the chose, though the latter 
 be secured on at least the beneficial interest in a tenement, and this 
 mortgage be transferred with it {(12). But one to whom it has been thus 
 transferred seems competent (d) to so release it as to extinguish even such 
 counterclaims (<£)•" 
 
 p. 416, /. 15. 
 Notes. 
 
 p. 418, Notes. 
 
 p. 4^7, 
 '.9. 
 
 In n. (c) for " (e) (/) " substitute 
 " fe d) " 
 
 In n. (d) for " s. 4 (6) " substitute 
 u s. 25 (6)." 
 
 To n. (g) add " Johnstone v. Cox 
 L.R. 16 CD. 571." 
 
 To n. (i) add " Williams v. JJ'it/iants 
 (in which the question was whether 
 a person into whose hands money 
 
 Insert " (d 1) See L.R. 6 Q.B.D. Notes. 
 
 631. 
 
 (d 2) National Provincial 
 Harle L.R. 6 Q.B.D. 626." 
 
 Bk. v. 
 
 which he believed to belong to A had P- 433, Notes. 
 come was bound by constructive 
 notice of the fact that a predecessor 
 in title of A had assigned the money 
 to B) L.R. 17 CD. 437." 
 
 App. 7.
 
 ADDENDA ET CORRIGENDA. 
 
 p. 440,/. 6. 
 
 p. 446, Notes. 
 p. 448, I. 1. 
 
 Notes. 
 
 p. 450, /. 16. 
 
 Notes. 
 
 p. 451, 1. 2, 3. 
 /. 6. 
 
 1.1. 
 
 I. 12. 
 
 Notes. 
 
 p. 454, last line. 
 p. 455, /. 6. 
 
 /. 9-11. 
 
 Notes. 
 
 p. 456,^.8. 
 
 Notes. 
 
 p. 485, Notes. 
 p. 505, t. 22. 
 
 Notes. 
 
 After " (d) " insert " unless made since 1881 (d 1) ;" 
 Insert " (d 1) 44-5 Vic. c. 41 s.62." 
 
 In n. (/) insert " Bainbrigge v. Browne L.R. 18 CD. 188." 
 
 After " (a) " insert "nor is notice of an intention to commit an act of 
 Bankruptcy notice of the act itself, nor, therefore, of the bankruptcy- 
 trustee's title (« 1) ; " 
 
 544." 
 
 " by the enactment (g 1) precluding 
 
 Insert "(« 1) Ex.RalUfax2 M.D.D. 
 
 For ' ' perhaps by law ' ' substitute 
 inquiry into a lessor's title." 
 
 Ton. (e and y) add "Batman v. 
 Borland L.R. 17 CD. 353. 
 
 Insert " (g 1) 37-8 Vic. c. 78, s. 2 
 
 (I)-" 
 
 For n. (A) substitute "(A) B. 
 H. p. 359." 
 
 For " except perhaps " substitute " even " 
 
 After " lease " insert '' (e) or purchase-deed (e) " 
 
 After "which " insert "(e) or in a deed referred to in which (c)" And, 
 after " contained," omit "(e)." 
 
 After "But" insert "it seems {J 1) (n) to be confined to documents 
 dated within the period to which a purchaser can require the vendor to trace 
 back title ; and" 
 
 Insert " (n) It is difficult to reconcile the proposition that a document 
 dated outside the statutory period of 40 years stands on a different footing 
 from one excluded by the statutory rule that a lessor's title may not be 
 inquired into, but such seems to be the doctrine of B. v. Be." 
 
 In n. (a) after 
 B. v. BZ." 
 
 For n. (e) substitute 
 
 e: 
 
 In. d 
 
 After 
 
 F. v. S." insert 
 (c) B. v. 
 (d) after " F. v. 8." insert 
 as" insert " a statement by the vendor." 
 
 b. v. h: 
 
 Ton. (/) add " B. v. S." 
 To n. (J) add "and see B. v. .H." 
 Insert "(jl) See B. v. BZ. p. 
 355-6." 
 
 After line subjoin " and a statement by a vendor that a document (by 
 which the property is admittedly affected) does not contain some specified 
 provision (for example a restrictive covenant) is not a sufficient excuse for 
 not examining it (e 1)." 
 
 For " (g). * * * (A)," substitute " (g), and though (in case of deeds 
 made since 1881 (g 1), but not, seemingly, in that of deeds made before 
 1882 (h), the receipt be outside the body of the deed." 
 
 Insert " (e 1) Batman v. Harland (g 1) 44-5 Vic. c. 41 s. 55 ; Qu. 
 L.R. 17 CD. 356-8." the policy of this enactment. 
 
 After line add in new par. " And the action of a Solicitor, professedly on 
 behalf of a child, in a transaction by which the father is benefited, is 
 sufficient to exonerate the purchaser from notice that the father has 
 exercised undue influence (c 1), so far as that notice is founded on the pre- 
 sumption arising from the fact of fatherhood (c 2), even though the solicitor 
 was acting for the father also (c 1)." 
 
 Insert (c 1) Bainbrigge v. Browne (c 2) See p. 197-8." 
 L.R. 18 CD. esp. p. 198. 
 
 Inn. (d) for "Hunt" substitute "Holt." 
 
 After "(e)" insert " and (seemingly) though it was so, if the deed was 
 made since 1881 (e 1)." 
 
 Insert "(el) 44-5 Vic. c. 41 s. 54."
 
 ADDENDA ET COHKIOENDA. li. 
 
 For "treat only of chattels" substitute "belong to the domain of P> 509,/. 7-8, 
 
 mercantile law," 
 
 Omit " tbe possession * * * by," and, after " disponee," insert p. J09, /. 19-20. 
 " bas taken possession formally, and for the purpose of preventing removal." 
 
 After "(i)" insert "and though (when the priority is sought for a l - 2°- 
 registered over an unregistered disposition) the holder of the unregistered 
 disposition was the first to take possession after tbe registration (/ 1) ;" 
 
 To n. («) add " and see below p. insert " Jay r. Blenkhorn L.R. 9 Ch. NaUt - 
 515 {m 1), and cases there cited " 702; and, after " L.T.N. S. 40" 
 
 Omit n. (c). insert " sd., National §c. A. Co. r. 
 
 To n. (d) subjoin Seal v. Claridye Francis, L.R 10 CD. 408." 
 L.R. 7 Q.B.D. 516." Insert " (1 1) Lyons v. Tucker 
 
 In n. (I), after " 6 Ch. 626," L.R. 7 Q.B.D. 523." 
 
 After " (ft)" insert " and though the bankruptcy &c. commenced on the p. 515. 1. 4. 
 same day on which possession was taken (ft 1)." 
 
 After " it seems " insert " (i 1)" l- 17. 
 
 After " was made or " insert " contemporaneously [m 1)" h 18. 
 
 Insert " (i 1) It does not seem perfectly clear (q 1) that open and Notes. 
 notorious seizure by the sheriff &c. may not be necessary to exempt even a 
 subsequent receipt from the necessity for registration." 
 
 In n. (n) L 6, for "desirable" substitute " derivable " 
 
 Insert " (ft 1) Jay r. Blenkhorn Q.B.D. 80, 86 I. 25-30, 87 I. 9-13. 
 L.R. 9 Ch. 702. (y 1) See L.R. 7 Q.B.D. 88." 
 
 (m 1) Marsden v. Meadows L.R. 7 
 
 For "(c);* * * is also " substitute " who have registered (c), which p.^516, 1. 3-5. 
 latter are equally entitled though no creditor may be " 
 
 For n. (d) substitute " (d) Conelly v. Tucker id. 5'23, rvg. L. v. T. 6 Notes. 
 v. Steer L.R. 7 Q.B.D. 520 ; Lyons Q.B.D. 660." 
 
 In n. (») omit "Lyons * * * 660;" p. 517, Notes. 
 
 For " circumstances * * * taken (i) ;" substitute " or (no doubt) the P- ;>18 ' *■ 10 " 3 
 subsequent disposition had been registered ;" 
 
 In cross-note I. 5 after " (o)" insert " what, if they are in a house of which 
 the disponor ha? the key, but in which he does not sleep (o 1);" 
 
 To n. (g) add " Seal v. Claridye Q.B.D. 516. 
 (attestation by grantee void) L.R. 7 (o 1) Seal v. Claridye." 
 
 In n. (I), I. 5, after " 295 ", insert 319 " P- 5 l°- Wrtw. 
 
 " Hamilton v. Chaine L.R. 7 Q.B.D. 
 
 A new par. should begin at " And " P- 520 > L 10 
 
 In n. (h), 2d. col., I. 1, for " 59" substitute " 5-9 " P- 522 ' Notes - 
 
 In n. (c) insert " Craivcour v. Salter L.R. 18 CD. 30." p.587,JVWe». 
 
 To n. (y) add " Crawcour v. Salter L.R. 18 CD. 42-3." P- 530 > Notes - 
 
 To n. (;») add " Stokoe v. Cowan 7 Jur. N.S. 901." P- 543 > Notes - 
 
 Inn. (n), for "(«)" substitute "(ft)" P . 54i, Notes. 
 
 To n. («/) add " and in r. Brown, Bayley, $ Dixon L.R. 18 CD. 649.'' P- 567 > Notes - 
 
 After " canons " insert " (i 1)" _ p " 571 ' L 10 - 
 
 Insert " (i 1) But he whose right or interest is thus preserved against a Notes. 
 priority which would otherwise be, under tbe second canon, gained, is en-
 
 Hi. ADDENDA ET CORRIGENDA. 
 
 titled to the same priority over all rival claimants as the bankruptcy-creditors 
 would be, under that canon, entitled to (I 1)." 
 
 Insert "(I 1) Payne r. Cross L.It. 11 CD. 544-5." 
 
 p. 580, 1. 13, After " («)" insert " accrued due before the date of the order of adjudica- 
 
 tion (a 1) " 
 
 p. . r )90, /. 7. After " (c) " insert " nor because it is used for the recovery of principal 
 
 as well as interest (c 1) : " 
 Notes. Insert "(c 1) Harrison r. Betts To n. (m) add "extended in 
 
 L.R. 18 CD. 127, overruling Barrow r. Andrews L.R. 18 CD. 
 
 Sampson v. Felloices L.R. 6 Eq. 464; and see Hall v. Dyson L.R. 17 
 
 575." Q.B.D. 785." 
 
 p. Ap. i, Head- Last line, after " so " insert " and a recent decision already (b 1) referred 
 note. t0 ». 
 
 Notes. To n. («) add " see also Jones v. Boro 1 of Hackney N.Co. L.R. 3 CD. 
 
 Williams 24 Bea. 47, as to an 669 ; and modified by, and doubted 
 
 instance in which a merely equitable in, International Pulp §c. Co. L.R. 6 
 
 claimant is preferred to a repre- CD. 556." 
 
 sentee." Insert " (b 1) Ante, Add, p. 80 
 
 To n. (b) add "; modified by (dl,d2). u 
 
 FURTHER ADDENDA. 
 
 CONSISTING OF POINTS PUBLISHED IN L. K. 6 P.D. WHILE THE ABOVE WERE 
 IN THE PRESS. 
 
 p. 105, Notes. After n. (/) subjoin " Ods. Brake L.R. 6 P.D. 217." 
 
 p 184 i 14 After "made" insert "on the same paper as the testator's signature (/l)" 
 
 Notes'. ' Insert " (/ 1) Gds. Hatton L.R. 6 P.D. 204."
 
 (liii.l 
 
 INDEX. 
 
 [In this Index :— 
 
 A hyphen, preceding a di^it of the unit column, implies .1 repetition of Hie digits ol 
 the ten and hundred columns of the preceding numeral, and, if not preceded i y a comma, 
 further implies the intervening pages, 'thus "216,-8," means "216 and "218" but 
 " 216-3" means "216, 217 and i\s." 
 
 The roman numerals and italic letters which follow the numbers of the pages denote 
 that the point indexed Is explained' at that part of the page in which such numeral or 
 letter is placed. But when the numeral or letter is in parentheses preceded hy n. (for 
 "note") it-denotes that the point is explained in the corresponding note at the loot of 
 that page. 
 
 A colon or an aratoic numeral denotes, when it follows an italic letter, that the 
 point is discussed in that part of the addenda to the page in question in which the letter 
 occurs. But when a passage in the addenda merely confirms a statement in the text, or 
 is otherwise such as not to require a distinct line in the index, it is left unnoticed there, 
 on the assumption that the reader will, in every case, consult the addenda as well'as the 
 text]. 
 
 Pwic. 
 
 Abatement of Purchase-money ... ... ... 3(%-9./, 319i-20J 
 
 Abstract concealing a document of title ... ... ... 292/1 
 
 Acceptance of 
 
 Benefit in 
 
 Satisfaction of a condition is equivalent to performance : when... olOn, 
 Part performance of a contract precludes from 
 
 Requiring Title ... ... ... ... ... 308/ 
 
 Rescinding ... ... ... ... _ ... 2S9d,307A 
 
 Conveyance disentitles purchaser to relief for misdescription ... 'SO'.h-j 
 
 Disposition, Gift, &c, is necessary or not to its validity ... 107-!' 
 Offer 
 
 Implies counterpromise ... ... ... ... 110 
 
 Is or is imt 
 
 Implied ... ... ... ... ... 107 
 
 Necessary ... ... ... ... ... 107-!» 
 
 Valid ..." _ ... ... ... ... ... 107-!t 
 
 Must be manifested ... ... ... ••• 107 
 
 Qualified, is void as such, but operates as rejection and counter- 
 offer ... ... ... ... ... ... 110 
 
 Within what time must be made ... ... ••• 1406-8a 
 
 Accountant to the Crown : Liabilities. of .... ••• 363a-</, -71 >n,n 
 
 Accretions after contract of sale belong to the purchaser ... !S4 
 
 Accruer < Ilause 
 
 Defined ... ... ... ... ••• ••• -^ 
 
 Whether .within the perpetuity rule ... ■•• ••• 2©8a,e 
 
 Accumulation is forbidden in some cases by the 
 Perpetuity-rule ... ... ••• ••• ■•■ 256,-<3«,o 
 
 Tbelluson Act ... ... ■•• ■•• ■•• -'- 
 
 Ai. know LED'.' EM EST that right*! have ceased bars them : when. ... 505 
 
 A PP. 8.
 
 liv. INDEX. 
 
 Acquiescence by , . 
 
 Covenantee, &c., in breach of a covenant disentitles hnn to enforce 
 
 it: when ... ... ••• ■•■ ••• •■• 1 ""' ,/ ' 
 
 Creditor, in 
 
 Act of Bankruptcy precludes him and others from relying on an 
 
 adjudication founded on his petition _ ... ... ... 58fW,wi 
 
 Dealing precludes him from displacing it ... ... ... 548a,6 
 
 Trust-deed entitles him to enforce it ... _ ... ... 100 
 
 Victim, in unconscionable bargain may preclude him impunging it 131-2 
 
 Act 
 
 In reliance on a dealing precludes from objection to it as being 
 
 Fraudulent against Creditors, Purchasers, &c, ... ... 545a 
 
 Gratuitous ... ... ... ... ... 1456-d 
 
 Inadequately assented to ... ... ... ... H3e 
 
 Incomplete ... ... ... ... ... 104 
 
 Iiulefinitive (perhaps) ... ... ... ... 9'J 
 
 Voluntary ... ... ... ... ... 145&-d 
 
 Of 
 
 God, the Law, &c., excuses breach of condition ... ... 310r-k 
 
 Ownership over chattel of deceased person ... ... I' 1 ' 
 
 Action by Husband, or husband and wife ... ... ... 53 
 
 Actual Notice 
 
 Defined ... ... ... ... ... ... U6d 
 
 "What amounts to ... ... ... ... 443a-4#,-5a-8c 
 
 Adequacy of 
 
 Assent to a dealing is necessary to its validity ... ... 113 
 
 Consideration, see "Consideration." 
 
 Administration 
 
 Action for, affects Executor's powers and rights ... ... o'Jc 
 
 Creditors in action for, are entitled to priority or not over a creditor 
 who has been 
 
 Fraudulently preferred by deceased ... ... ... 590/fc 
 
 Quosi-partner with deceased ... ... ... ... b'Mi-nt, 
 
 Administrator 
 
 Duties of ... -;.. ... ... ... ... 3Gc/-/>/l 
 
 Kinds of ... ... ... ... ... ... o(>-7 
 
 Who may be ... ... ... ... 35i-6&, 36n (b) 
 
 Wrongfully appointed can act till revocation ... ... '3<J<i 
 
 Administratorship : Vacancy in does not suspend the statute of 
 
 Limitations ... ... ... ... ... ... 27 
 
 Admission of contract by pleading obviates the necessity of 
 
 writing ... ... ... ... ... ... pjo 
 
 Admittance to Copyhold: use of ... ... ... 42in (i.) 
 
 Advance of money or goods : 
 
 Bankruptcy creditors are disentitled to priority by, ... ... 576#-Z 
 
 Public Bodies may make, ... ... ... ... 367-8 
 
 Advancement 
 
 Clause ... ... ... ... ... ... g(5 c 
 
 To child, or resulting trust ... ... ... 322d-3Jfc,-5/-6p 
 
 Adverse Possession, in what sense abolished ... ... 256
 
 INDEX, 
 
 Iv. 
 
 Advertizement 
 By Executor exonerates him, &c. ,,. 
 
 ( )f Act of Bankruptcy is not notice <>f it 
 
 Advice 
 In case of Prodigality, effect of, ... 
 Rebuts presumption of undue influence 
 
 Advowson : 
 Alluded-to ... 
 
 Alienable, even when not ecclesiastical 
 Chattel interest in, 
 Elective, whether it may be 
 In gross, Devolution of on death of the owner 
 Is disponable 
 
 Purchase of, is valid : when, 
 Right to, is barred by st. of limitations : when, 
 Sale of by Corporation is authorized : when, 
 
 After-acquired property is assignable 
 Against Bankruptcy -creditors 
 In Stock-in-trade 
 
 Agency trust-deed: sec "Creditor: Trust disposition for." 
 
 
 210; 
 
 1:;:;/,/ 
 
 10 
 279s 
 10a 
 
 275i 
 
 l!ln (c) 
 
 279s 
 
 205 
 
 28 
 
 363/i 
 
 ~>77'Z 
 
 211V1 
 
 Agent 
 Binds his Principal by his fraud ... ... ... 28Qh-k,w,-90b,-Zi 
 
 Is bound to yield to his Principal any advantage he may have made 194A-6/ 
 Including the benefit of a contract ... ... ,,, r.t.Vl 
 
 Is competent to or not to 
 Purchase from or sell to his Principal ... ... ... 193 
 
 Sign for his Principal ... ... ... ... 183 
 
 Limitations, st. of, confers personal title on : when ... ... 2661 
 
 Notice is imputed from to principal : see " Imputative notice." 
 Report from to his Principal, shewn by the latter, is not a repre- 
 sentation ... 
 
 Age of Life-tenant understated by Vendor ... 
 
 Air: right to, 
 
 ALIENAGE: effect of, on Descent ... 
 
 ALIENATION : see <; Disposition " " Restraint on Alienation." 
 
 Alimentary provision : restraint on alienation of, 
 
 "All" property : priority of a disposition of, as depending on, 
 Bankruptcy ... ... ... . . 
 
 Fraud against purchaser or absence of value 
 Legal estate 
 
 Alteration of circumstances precludes from rescinding unconscion- 
 able bargain ... 
 
 286i) : 
 30."o 
 9 
 
 47n (/) 
 
 246a,h-j 
 
 585c-7i 
 403 
 
 132. 
 
 Alternative limitation 
 
 To issue, means issue living : when 
 Under Power of disposition 
 Void for perpetuity : when 
 
 22!) 
 
 228a 
 
 254j/-5«,-66/,f/ 
 
 Ancient Settlement falls under the Perpetuity-rule 
 
 256-7
 
 hi. INDEX. 
 
 Annuity 
 
 Alienation of, may be restrained,.. ... ... ... 249<f,g 
 
 Devolution of, on death ... ... ... ... 34f/i 
 
 Is n ot 
 
 Preferred to Legacy ... ... ... ... 34<W 
 
 Subject to 
 
 Husband's courtesy ... ... ... .,. 447.3 
 
 Wife'S dower ... ... ... .., ... 4','nl 
 
 Is 
 
 Postponed to Purchasers, &c, unless registered ... ... 465-6 
 
 Transferable 
 
 As to the legal estate ... ... ... ... 425fc,c 
 
 Orally,' whether, ... ... ... ... ... Vf9p,h 
 
 Antecedent bEBT ; Security for, is or is not 
 
 For Value ... ... ... ... ... ... 144a 
 
 Valid against Creditors ... ... ... ... 553/-A 
 
 Anticipation, Restraint ox 
 
 As regards Perpetuity ... ... ... 246d J -58a,6,ll 
 
 Otherwise ... ... ... ... 138i-9e,el, 2465-e, 3frV : 
 
 Appointment 
 
 Of New Trustees ... ... _ ... ... ... 3077.1 
 
 Under Power : sea "Power, of Appointment, Exercise <>f." 
 
 Apportionment of 
 
 Apprenticeship-fee ... ... ... ... ... I.*i0r- 
 
 income between Vendor and Purchaser ... ... ... S9/,90-l 
 
 Appurtenancy ... ... ... ... ... s, 8n 
 
 Arbitration to fix terms of contract ... ... ... 101 
 
 Artizans' dwellings: Grant for... ... ... 363/, 371h,o 
 
 Ascertaixment of Terms in Contract ... ... ... 101 
 
 "As of Right" ... ... ... ... ... 31/ 
 
 Assent by 
 Creditor or purchasep to disposition precludes him from displacing it ■*> lSa,h 
 ( Veditor to Act of Bankruptcy precludes him from relying on adju- 
 dication founded on his own petition ... ... ... 5S07,?n 
 
 Executor to legacy : see " Executor " 
 
 Owner of property to ;i promise which another makes respecting it 
 
 is equivalent to concurrence .. ... ... 95f, modified f 
 
 Assets 
 
 Defined ... ... ... ... ... ... 548n (n.) 
 
 Liable in what order to del its ... ... ... ... 41 
 
 As.srcxEE of 
 All the assignor's prop aty is postponed to his bankruptcy-creditors 581/-4e 
 
 Unless he furnish means for carrying on the assignor's business 506a-9o 
 Contract, is 
 
 Bound to render the consideration : when, ... ... 169A-/ 
 
 Entitled to more or less prioBity, ace. as the contract is made by 
 
 Negotiation ... ... ... ... ... 1566, c 
 
 Novation ... ... ... ... 154a 
 
 Other means ... ... ... ... ... 1544 
 
 Leasehold is not postponed to assignor's creditors ... ... 553c
 
 INDEX. Ivii. 
 
 " Assigns" 
 
 Effect of, in a limitation to tin' " heirs and assigns" of one to 
 
 whom a preceding terminable interest is limited ... ... 236/ 
 
 Is necessary or not to make a covenant run 
 
 As to the Benefit ... ... ... ... ... 160#-1« 
 
 As to the Burthen ... ... ... ... 171 and n. (u. ),-!<• 
 
 ASSUMPSIT': origin of ... ... ... ... 75 
 
 Attachment of debt is protected agst. bankruptcy creditors : when 572e,7,-3c 
 
 Attainder: effect of on descent ... ... ... ... 47 n.(/<) 
 
 Attendant teems 
 
 Defined ... _ ... ... ... ... ... 403 n.(r.) 
 
 ( 'ease when satisfied ... ... ... ... 403a,-42A,/,] 
 
 Effect of, on Priorities ... ... ... 402andn.(l.) 
 
 Attestation of 
 
 Bill of Sale... ... ... ... ... ... 141e,519/ 
 
 Document, is not notice of its contents ... ... ... 44,s,"> 
 
 Warrant to confess judgment ... ... ... ... 141f 
 
 Will ... ... ... ... 184g 
 
 Attoenet, Power of : Title under is protected ... ... 369/3 
 
 Attornment 
 
 By Trustee, when necessary to gratuitous disposition ... 124l., andn.(x.) 
 ( 'iause is protected against bankruptcy-creditors 5l2f,{ji,n.(l.),-17j,k,-80d,'^b-n 
 
 A I CTIONEER is 
 
 Authorized to sign for vendor and purchaser ... 183o,-4a, modified b 
 
 Not competent to bind his employer by a mistaken representation 30W : 
 
 Authority of Agent of disponor [see "Agent "] may be 
 
 Belied on by disponee : when ... ... ... 3Pi9_/3, 504 /,-."></ 
 
 Unwritten: when ... ... ... ... ..." ISO 
 
 ATT HE VIE: Estate pur, devolves on Executor ... ... 32?/ 
 
 A VOIDANCEOF dealing' is effected : how ... ... ... 115d 
 
 Bad Faith and Bawjes of Fraud agt. 
 
 Banliruptcy-creditors ... ... ... ... 581d-600r/, esp. 583-56 
 
 Creditors ... ... ... ... ... ... 54&Z-55& 
 
 Purchasers, &c. ... .... ... ... G01-0, esp. 606o-7& 
 
 Bailee: see "Fiduciary." 
 
 Banker : 
 Expectation of Advance from him does or does not protect a mort- 
 gage to him agt. the mortgagor's bky. -creditors ... ... 508m,?i 
 
 Fraud on his creditors, ... ... ... ... 562t-3c 
 
 Is entitled to a lien ... ... ... ... ... 339/ 
 
 Bankruptcy : 
 
 Acts of 
 
 Assent to, or acquiescence in, ... ... ... ... 5X0/,/,; 
 
 Definition of | ... ... ... ... ... 70e-h 
 
 Kinds of, ... ... ... ... ... 568«-9/i». 
 
 Notice of, ... ... ... ... 448al,574/-5c
 
 hiii. INDEX. 
 
 Adjudication, permitted in what events ... ... ... 70 
 
 Close of, revests surplus ... \ ... ... ••• 73 
 
 Composition in, extinguishes certain claims... ... ... 5816,c 
 
 Creditors under, 
 
 Are or are not 
 
 Bound to return whatever the trustee has acquired by a mis- 
 take, even of law... ... ... ... ... 282jr;l 
 
 Entitled to 
 Equality with creditors who could have proved in a previous 
 
 bankruptcy ... ... ... .. ... 499r/ 
 
 Priority 
 By means of 
 
 Legal estate ... ... ... ... 356e-99e 
 
 Registration 407g-s, t, -8a-c, and see 414/, -69?., -70n( r . ), 47 y-%; -90o, 581a 
 Over 
 
 Acts of Bankruptcy and transactions subsequent thereto 565&-7& 
 
 Assignment of all the bankrupt's property ... ... 585c-7i 
 
 Attornment clause ... ... ... 580<?,589t-i% 
 
 Bill of Sale : see " Bill of Sale Acts." 
 
 Cessio honor um ... •• ... ... 585c-7i 
 
 Contract to settle on wife or children ... ... 598 
 
 Distress ... ... 579-80i,589i-9Qj/ 
 
 Execution ... ... ... 5&9e-ff, and see 585a;b,-91g 
 
 Extent in Ireland ... ... ... ... 000//, i 
 
 Fraudulent dealing ... ... ... 5826-5c,602fli 
 
 Fraudulent preference ... ... ... 590A-7<* 
 
 Gratuitous dealing : see Bky.-crs. ...Settlement." 
 
 Judgment ... ... ... ... ... 598 
 
 Landlord distraining ... ... ... 579-80/ l ',5S9/-90// 
 
 Limitation over on bankruptcy ... ... ... 587 
 
 Proceeds of Execution ... ... ... 599A-70i 
 
 Quasi-partner ... ... •■• ••■ 000 
 
 Settlement... ... ... 58$7-%,-90&-8i, and see 571&-4J 
 
 Respecting 
 Chose in action, the rival dealing with which has been 
 
 notified to the holder... ... ... ... 400/' 
 
 Property, in the bankrupt's 
 < )rder or disposition : see " Order and disposition." 
 Ownership, whether it be 
 
 After-acquired property ... ... ... 70/-/3 
 
 Alimentary provision ... ... ... ... 70/1 
 
 Burthened property or contract ... ... ... 12 
 
 Damages for a wrong ... ... ... ... 71" 
 
 Earnings ... ... ... ... ... 70-1 
 
 Estate-tail ... ... ... ... ... 372-4 
 
 Partner's separate estate ... ... ... 70/ 
 
 Presentation, right of ... ... ... ... 10k 
 
 Power ... ... ... ... ... 71c 
 
 Subject to 
 
 Appointment afterwards made under a power ... ... 361c 
 
 Unless made by the bankrupt ... ... ... 353A',? 
 
 Creditors under previous bankruptcy... ... ... 499</ 
 
 Dealing made to obtain advance or otherwise facilitate Con- 
 tinuance of business ... ... ... ... 575/?n.-9o 
 
 Dealing for Value without notice ... ... ... 571c-44 
 
 Mortgagee's right to consolidate ... ,.. ... 349c 
 
 Protected transaction ... ... ... ... 571 '•-4/. 
 
 Registered deed ... ... ... ... 407</-/ 
 
 Being entitled to priority over a dealing, are not therefore entitled 
 to priority over every dealing to which the former would, but 
 
 for the bankruptcy, have been preferred ... ... ... 34U< 
 
 is a Lis pendens : how far ... ... ,,. ... 342«..r
 
 INDEX. Hx. 
 
 Priority over third persons of 'one who is protected against bank- 
 ruptcy-creditors ... ... ... ... ... 571/1 
 
 Purchaser under, in Ireland, is entitled to priority over certain 
 
 Claims founded on defects in proceedings... ... ... <»00 
 
 Extents ... ... ... ... ... ... 600 
 
 Settlements ... ... ... ... ... 598a 
 
 Receiver in, effect of his appointment ... ... ... 574^' 
 
 Terminates an 
 
 Agency ... ... ... ... ... ... 266 
 
 Offer ... ... ... ... ... ... 109,512?n 
 
 Trustee in 
 
 Acquires Legal estate on his appointment ... ... til 
 
 Except in Stock ... ... ... ... ... lliv 
 
 Disclaims with what formalities ... ... ... 127c: 
 
 Is or is not 
 Authorized to 
 
 Bar entails ... ... ... ... ... '67'2>J 
 
 Disclaim ... ... ... ... ... 72 
 
 Register himself as holder of 
 
 Whips ... ... ... ... ... 471 
 
 Stocks and Shares ... ... ... ... 4696-70a 
 
 Bound to pay rent and perform covenants ... ... 72f,ff,171a 
 
 Entitled to 
 
 Lien for expenses ... ... ... ... 335n 
 
 Sell to himself ... ... ... ... ... l\)]j 
 
 Bankrupt is not competent to 
 
 Displace, under a power, his creditors' interest ... ... 35Sk,l 
 
 Proceed for protection of his surplus ... ... ... 73/, 
 
 Bank shakes: Contract for sale, of must be in writing... ... 184/j, 
 
 Bare-trustee 
 
 Defined _ ... ... ... ... ... ... 52a*-3« 
 
 Devolution'from, ... ... ... ... ... 53oe 
 
 Is competent to dispose, though a married woman ... ... loiSc 
 
 Bargain and Sale ... ... ... ... ... 76,394a-& 
 
 Bar of 
 
 Dower ... .. ... ... ... ... 50-7 
 
 Entail: see "Entail: Bar of.'' 
 
 Executory limitation of an interest derived out of a life estate ... 215el 
 
 Fee-Conditional ... ... ... ... ... 49c,tf,372c 
 
 Possibility of Reverter ... ... ... ... 49c, rf, 372c 
 
 Base-fee- see "Qualified fee." 
 
 Bastard 
 
 Gift to, ... ... ... ... ... ... 201A-2J 
 
 Inheritance of, ... ... ... ... ... 48a, 6 
 
 Parentage of, may be investigated : how far ... ... 203a-id 
 
 Beer: Covenant to take, runs with the land : when ... ... 174n.(i.) 
 
 Bees: pass with the land ... ... ... ... 6 [!. 22] 
 
 Beginning to keep house is an act of bankruptcy ... 5G9«-c,n.(i.) 
 
 Beneficial Interest 
 Explained
 
 It. INDEX. 
 
 Generally ... ... ■•• ••• •■• 375 
 
 hi a Ship... •■• ••• ••• ■•• ■•• *73 
 
 Priority or : See "Legal estate," 
 
 Undisturbed by such dispositions as are construed to affect the legal 
 
 estate only..- ••• ... ••• 94&.-ac ; 98c-9&,322a-&fc ; 324/-7S 
 
 r.i:xi:i'ici.\i;v is entitled t<> a 
 
 Lien <>u settled funds, as against 
 
 Other beneficiaries ... ... ... ... ... 3.>0 
 
 Purchaser, &c, from the trustee ... .".. ... 845A 
 
 Profit made by his fiduciary ... ... ... ... l'.)lh-7c 
 
 Bequest : 
 
 Generally: Whether must be definitive, ... ... ... 07 
 
 To illegitimate offspring valid : when, ... ... ... 201A-2/ 
 
 Best right to call fob the legal estate : see " Legal estate ; best 
 right to call for." 
 
 Bn.L of Exchange and Promissory Note : 
 
 Accepted in fraud of creditors, is postponed to them ... ... 540< 
 
 Can he bequeathed by delivery or donatio mortis causa... ... VH'ti 
 
 Can be negotiated : 
 
 How ... ... ... ... ... ... 425f,ffj 
 
 When ... ... ... ... ... ... 348o 
 
 Consideration necessary for : when ... ... ... 142//-/.; 
 
 Is subject to equitable claims ; when 
 
 During currency ... ... ... ... ... HQi-j 
 
 After becoming due... ... ... ... ... 348J-96 
 
 See : '\Woring exp." 
 
 Bill OF LADING : effect of omitting " order and assigns " in ... 4o0j 
 
 Bit.t, of Sale Acts : 
 
 In general ... ... ... ... ... ... .">12 20 
 
 In particular 
 
 Attestation ... ... ... ... ... 141c,519/ 
 
 Attornment ... ... ... ... 513/,r/,n.(i),~>17./ 
 
 Consent of owner ... ... ... ... ... 514/.,A 
 
 Considerations : statement of, ... ... ... ... hl9k,l,in 
 
 Creditors' trust-deed ... ... „. ... 517'' 
 
 Distress ... ... ... ... ... 513f,g,{l.),517j 
 
 Evasion of enactment ... ... ... o77//-./',"'7'- 1 "'-/' 
 
 Inventory ... ... ... ... ... f>14« 
 
 Legal estate ... ... ... ... ... 519h,o,(i) 
 
 "Marriage settlement ... ... ... ... 517/,0 
 
 Mortgagee's right to consolidate ... ... ... 350& t a 
 
 Notice affecting pi-ef erred party ... ... ... 5156 
 
 Oral disposition ... ... ... ... 5146,515ji,(h.) 
 
 Oder and disposition ... ... ... ... "v>0 
 
 Possession ... ... 514c-t,/,(i.),517»i J «,(i.),614-5 : 518 : 
 
 Protecting clause of Bankruptcy statute ... ... ... 515a 
 
 Receipt for purchasemoney ... ... ... 513//.,'iT.),5ir>(i.) : 
 
 Registration ... ... ... ... 519e,p-r,(i. % ,52ba-b 
 
 Scheme for evading the enactment ... ... 5>77k-j,&79d-k 
 
 Situation of subject-matter ' ... ... ... ... ' 516e-f/ 
 
 Successive bills of sale ... ... 515;tt,(lJ,520a,577ft^',579a*-/« 
 
 Trade transactions ... ... ... ... 517A,</,o20//,// 
 
 Who is entitled to take advantage of the enactment... ...51oo,516a,« 
 
 Winding-up creditors ... ... ... ... 520&
 
 IN MIX. lxi. 
 
 Bishop is 
 Authorized to sell parsonage, &c ... ... ... • ;, i)' 
 
 Restricted in disposing of See lands ... ... ... 369/ft 
 
 Blank transfer of shares, committed to broker, does not always 
 
 unable him to transfer whatever shares he likes to fill in, ... 5056 
 
 Bond 
 Can he bequeathed by delivery (or donatit mortis causa)^ ... 126g 
 
 Depositee of, from one whom he believed to be owner, is preferred 
 
 to true owner ... ... ... ... ... 502'£ 
 
 Given in fraud of creditors, is postponed to them : when, ... 510c 
 
 BONUS ON STOCK, the sale of which has been contracted for, belongs 
 to the purchaser ... ... ... ... ... 81 
 
 Boundaries, defined by Landed-estates-court-cuiiveyance ... Ap. iii. 
 
 Broker : see "Blank Transfer.'' 
 
 "Brothers and Sisters" constitute a single class ... ... 220/t 
 
 Building Materials : right to seize, on bankruptcy is void against 
 bankruptcy-creditors : when, ... ... ... ... 571£,88<'j£ 
 
 BUILDING Plots: right to enforce covenants respecting them runs 
 with the land : when, ... ... ... ... ... IGOl 
 
 Buildings: support to ... ... ... ... 14-5,15 : 
 
 Burial place 
 
 Devolves to the heir ... ... ... ... ... 4561 
 
 Grant for: authorized ... ... . ... ... 3686 
 
 Trust for is void ... ... ... ... ••• 275/«, 
 
 Burthen of Proof , see " Presumption.'' 
 
 Business : 
 Lien on Manager of, ... ... ... ... ... 330p 
 
 See : " Purchase in the Course of business." 
 
 " By :" Meaning of, in old statutes ... ... ... 270n.(i.) 
 
 Cargo : Legal estate is transferable, how, ... ... ... 427t-8J 
 
 Carrying on of debtor's business protects ccssh bonwum, &c, agt. 
 bankruptcy-creditors ... ... ... ... ... blojin-'do 
 
 Case-law : see " Judiciary law." 
 
 Catching bargains: see "Unconscionable bargains." 
 
 CATHOLIC : see "Roman Catholic." 
 
 CM n?.4T under Record of Title (Ir.) Act ... ... ... 480A.J 
 
 Certainty: Priority depending on, ... ... ... 375-491 
 
 Certificates ot title and charge under the Record of Title (Ir.) 
 Act ... ... ... ... ... ... 481 
 
 A pp. 'A
 
 lxii. 
 
 IXDEX. 
 
 Cesser, clause OF : defined ... ... ... ... 247 
 
 CESS TO BONORUM is void agt. bankruptcy-creditors ... ... 585c-7i 
 
 Not if made to keep the debtor in business ... ... ... t)75firtr9o 
 
 Chancellor is authorized to sell certain advowsons ... ... 36-ji 
 
 CHANCERY Division is authorized to deal with property ... ... SG'y-q 
 
 Charge v 
 
 Defined ... ... ... ... ... ... A p. x-xi. 
 
 Rebuts Resulting Trust ... ... ... ... 324,-5i 
 
 Sale under : who may make ... ... ... ... 359n.(i.) 
 
 Charitable 
 
 Institution, is entitled to a profit made by its trustee ... ... lOom 
 
 Purpose : 
 
 Formalities necessary to trust for, ... _ ... 135a-6£,415a,6 
 
 Impossible or Illegal, a similar one is effectuated instead ... 241 
 
 Kinds of,... ... ... ... ... 102(?,275«-o 
 
 Protects dealing agt. creditors and purchasers ... ... 546o,p 
 
 Unstated, some such purpose is effectuated instead ... ... 1026, c 
 
 Use is within the perpetuity-rule : how far ... 257/,#,-8#,-9a 
 
 Charity-trustees are authorized to 
 
 Dispose of Charity-property : when ... ... ... 3(50/ 
 
 Exercise powers of Agricultural Holdings Act ... ... 3646 
 
 Chattel [and see " Chose in Action"]. 
 
 Defined _ ... ... ... ... ... ... 2[/. 4-7] 
 
 Intei-est in 
 
 Advowson, explained ... ... ... ... 10 
 
 Any Tenement 
 
 Explained ... ... ... ... ... 4 
 
 Convertible into freehold ... ,.. ... ... 34 — a: 
 
 Limitation of : see " Chattel, Validity " 
 Personal 
 
 Contract to sell is enforcible : when, ... ... ... 150,-lc-i 
 
 Kinds of Incorporeal, ... ... ... ... 'J-10 
 
 Legal Estate in, is transferable and confers priority : when ; see 
 "Ckote in action ; " " Legal estate " 
 
 Possession of, a badge of ownership, see "Possession of chattel " 
 Priority of interests in, is regulated by the law of what country ... 340n (;/) 
 ■ Real: see " Chattel Tnte rest " ■ 
 
 Treated as a tenement ... ... ... ... 5a-c 
 
 Uses, Statute of, does not apply to ... ... 438y», -0^,-40/ 
 
 Validity of limitations in, ... ... ... 2Vx(-iid,-7a 
 
 Wife's : see "Husband is entitled " 
 
 Cheque 
 
 Bequest of, by donatio mortis causa 
 Legal estate in, 
 
 Child 
 Conceived, is treated as born 
 Of unborn person : validity of limitation to... 
 Word " child " modifying " heirs " 
 
 " Children " is construed as meaning 
 
 "Heirs" ... ... ... ... _ ... _ ... 234n.(rt) 
 
 Those already born, when mother past child bearing, or otherwise 207n(i) 
 
 126* 
 
 425/;, i 
 
 22fic 
 
 223e-fir,-63n 0').-79r 
 
 238*
 
 INDEX. lxiii. 
 
 CIIOSE IN ACTION 
 
 Defined ... ■■. ••• ••• ••• _ •' 
 
 Equitable' claims affect a disponee of ... ... ••• 345/,* 
 
 Formalities for transfer of the 
 
 Beneficial interest -in, ... "... ... 125andn.(i.) 
 
 Equivalent of the legal estate in, 
 
 As regards whafckind of chattel ... ... 39$c t d,k-o,pi-8a-n 
 
 By what means 
 
 When the fund is in court... ... ... 398m-o,434d-/ 
 
 When there is no holder ... ... ... ... 434o 
 
 When the holder has an interest in the disposition ... 434/;, c. 
 In other cases ... ... ... 432n.(in.),432-3,433/„H«. 
 
 Who is deemed holder 
 
 In general ... ... ... ... ... 435a -//, t 
 
 In particular cases ... ... ... ... 43;"k/, i-Ge 
 
 When there are several ... ... ... 436/*- m 
 
 From what time he is so deeme d ... ... ... 435A 
 
 Legal estate in, ... ... ... ... ... 425 We 
 
 Negotiability of debentures, &c : see ... ... ... 433n.(i) 
 
 Priority of interests in, acquired for value by one 
 
 Having the legal estate or its equivalent, over interests of which 
 he had 
 
 Notice ... ... ... ... ... 410rt-22&,c.yj.417o 
 
 No notice and which belon ged to the 
 
 Legal or other holder ... ... ... ... 398/> : q : 
 
 Other persons ... ... ... 378c-9(/,388«.401A, esp. 388&-Z 
 
 Not having either ... ... ... ... ... 345/,/,' 
 
 Wife's, see "Husband is entitled " 
 
 Churches : grant for, ... ... ... ... ... 308c 
 
 ( 'LASS : 
 
 (lift to, is invalidated by the Perpetuity rule : when ... 257eZ,c,A,-65i 
 
 Member of, is entitled : when ... ... ... ... 225-7 
 
 Power to .dispose amongst, is exclusive ... ... ... 3G7<> 
 
 When ascertained ... ... ... ... ... 228c-9<t 
 
 Clause of Cesser : defined ... ... ... ... 247 
 
 Cr.osE op Bankrupcy revests surplus ... ... ... 73 
 
 Codicil: defined ... ... ... ... ... 83 
 
 Coercion invalidates a testamentary gift ... ... ... 133c£ 
 
 Coexecutors : Powers of , ... ... ... 39 and n. (J) 
 
 Ought to employ distinct Solicitors ... ... ... 34Gn.(i): 
 
 Collateral Motive is no objection to relief in some cases 281r,290<.'[/. 81,-4/ 
 
 Collateral Relatives : Limitations to, in a settlement ; when valid 
 
 agt. creditors and purchasers ... ... ... ... 556a-60A 
 
 Colleges are authorized to sell ad vowsons : when, ... ... SGGh 
 
 Collusive Suit or Judgment is void agt. creditors ... ... 540</ 
 
 Commencement of Lease is implied in agreement: when ... 103« 
 Commissioners : estate of certain, vests in on their appointment ... 441g,k-m
 
 lxiv. INDEX. 
 
 Commonable eights : extinguishment of ... ... ... 17 21 
 
 Common forms op Conveyancing [and see " Conveyancing.'"] ... f>2« 
 
 Common pur cause de vicinage ... ... ... ... 16rf 
 
 Common etght ... ... ... ... ... 17 
 
 Communication of 
 Disposition to disponee, is or is not necessary to its validity agt. , 
 
 Disponor himself ... ... ... ... ... 125(7 
 
 Creditors, Purchasers, &c. ... ... ... ... 6046 
 
 Offer to offeree is necessary ... ... ... .,. 107 c-e 
 
 Company (Public^ 
 
 Companies' Acts ... ... ... ... ... 277/ 
 
 Director neglecting to register incumbrances ... ... 80 
 
 Dissolution of unincorporated, ... ... ... ... 276?* 
 
 Is or is not 
 Authorized to 
 
 Dispose of property ... ... ... ... 366e-706 
 
 Issue Debentures... ... ... ... ... 366</ 
 
 Bound to pay damages to its shareholders for misrepresentation 286/1 
 Entitled to any profit made by its fiduciary (including its pro- 
 moter) ... ... ... ... 195g,h,l, modified, 194rt,6 
 
 Mortgagees of its specific property take priority over its general in- 
 cumbrancers ... ... ... ... ... 371?rt 
 
 Shares and Stock in : see " Shares and Stock." 
 
 Compensation for 
 
 Misrepresentation [and see "Misdescription."] 
 In general ... ... ... 285(/ ) -S. P V/-7/,-91>?,-2a-3t 
 
 Is not allowed out of trust-estate ... ... ... 2867 
 
 Mistake > ... ... ... ... ... ... 2S4«,e,/ 
 
 Stipulation respecting : see ... ... ... ... 2896 
 
 Completeness of agreement is necessary to its validity... ... 100-5 
 
 Composition 
 
 Consideration sufficient to support a, ... ... ... 144e-h 
 
 — Creditors 
 
 Are entitled or not to priority over 
 Dealings over which bky. -creditors would be so entitled 
 
 Generally ... ... ... ... ... 564/ 
 
 As to proceeds of execution ... ... ... 569/.' 
 
 Quosi-partners ... ... ... ... ... 600c 
 
 Bankruptcy-creditors take priority over a previous dealing by 
 which the debtor's then creditors were induced to accept a com- 
 position ... ... ... ... ... ... 578/ 
 
 — Resolutions extinguish certain claims ... ... ... 5816, c 
 
 Compromise may be supported by what consideration ... ... 144r,144-5 
 
 Compulsory purchase ... ... ... ... ... 370v-/ 
 
 Concealed fraud : 
 
 Limitations of Action for, ... ... ... ... 26-7 
 
 Remedy for, ... ... ... ... ... 291»-3]
 
 INDEX. hv, 
 
 Condition, [and see " Conditions of Sale,"] in a 
 Disposition, &c, of any kind : 
 Breach of, is 
 
 Excused: when,... ... ... ... ... 310«-1<? 
 
 Relieved: when,... ... ... 311r-7«, cy. SlSf,-4a-r,-(',hl,-7a 
 
 Defined ... ... ... ... ... ' ... 247 
 
 Enlarging estate ... ... ... ... ... 2lSr 
 
 Implied, is, in a contract ... ... ... ... 1506 
 
 Married woman is competent to dispose of an estate which she 
 
 holds on condition of doing so... ... ... ... 13$d 
 
 Precedent : in a 
 
 Contract ... ... ... ...294-9,298A2,305p :-6ff : 
 
 Disposition 
 
 Defined ... # ... ... ... 224, and see 250n.(c) 
 
 Immoral or unlawful, invalidates disposition ... ... p,i<i,, 
 
 Is construed as subsequent : when, ... ... ... 257/-/ 
 
 Performance of, cannot be excused, ... ... ... 31] ,>.,/ 
 
 Restraining 
 Alienation ... ... ...246ffl-50cf, esp. 245f-7k,-9l,q r 50b,k 
 
 Marriage ... ... ... ... ... 201 
 
 Reversion carries the benefit of, ... ... ... 2<i4/./ 
 
 Subsequent : 
 
 Defined ... ... ... ... 225, see also 250n.(r) 
 
 Immoral or unlawf id, is void ... ... ... 199/-200& 
 
 Performance of, is excused : when, ... ... ... 310a-16 
 
 Vendor is not entitled to sell, as absolute, a conditional estate 305/J7. 0] I 
 Lease : breach of condition in a, 
 
 Entry for, displaces what dealings with the leasehold ... 348a, 6 -58c 
 
 1 limitations, st. of, begins to run on, ... ... ... 27/ 
 
 Relief agt., is or is not granted when the breach is 
 
 Wilful... ... ... ... ... ... 313/ 
 
 Not wilful, and the condition is to 
 
 Insure ... ... ... ... ... 314«,6 
 
 Pay Rent ... .. ... ... ... 314c 
 
 Conditional fee, or gift : see "Fee-Conditional." 
 
 Conditions of Sale [and see the heads under which the subjects are 
 mentioned.] 
 
 In general : 
 Auctioneer selling under, must incorporate into contract ... 184/; 
 
 Construction of, ... ... ... ... ... lOfif 
 
 Misleading ... ... ... 286e,-8h r 92e-h,k,l r 94h 
 
 In particular : respecting 
 Compensation for Mistatementa ... ... 2896,306p,-9a-j' 
 
 Deeds to be evidence ... ... ... ... 290e [). 10] 
 
 Deposit and Expences ... ... ... ... 3\2p-t 
 
 Interest on Purchase-money ... ... ... ... 87<1-f 
 
 Misdescription ... ... ... ... 289fc,305r/-G<',-G/>,-9a : / 
 
 " Confidence" raises such a use as attracts the legal estate ... 4S8h 
 
 Confirmation 
 Of an 
 
 Invalid dealing ... ... ... ... ... 113-4 
 
 Unconscionable bargain ... ... ... ... 131-2 
 
 Precludes Avoidance ... ... ... ... ... 114 
 
 Consent [and see " Assent "] to 
 Marriage (when required as a condition precedent*, cannot be 
 dispensed with ... ... ... ... ... 314?n. 
 
 ( h'Wand disposition ; withdrawal of, is protected agt, bky, cr. when 5J2«
 
 lxvi. INDEX; 
 
 Consideration [and see "Act in reliance'']. 
 Adequacy of, is unnecessary agt. 
 
 Party to whom it is rendered (and exception) ... ... 145e-A 
 
 Creditors or Purchasers ... ... ... ... 553a 
 
 See "Consideration: Inadequacy" "Consideration is sufficient." 
 
 Beneficial Interest is transferred by allegation of, ... :.. 325/ 
 
 Bill of Sale : must specify, ... ... ... ... 5V&k-m 
 
 Continuous ... ... ... ... ... 48 
 
 Executed, is or is not sufficient agt. the 
 
 Promissor ... ... ... ... ... 14.V 
 
 Creditors ... ... ... ... ... 5550 
 
 Exorbitancy of, is immaterial ... ... ;.. ... 1457//; 
 
 Failure of, ... ... ... ... 149/150e,297a,555&-d 
 
 Formalities for ensuring deliberation are unnecessary when value 
 
 is rendered ... ... ... ... ... 123 
 
 From whom must move ... ... ... 166, and seel&Se : 
 
 Inadequacy of, is evidentiary of fraud agt. creditors, purchasers, 
 
 <fec. ... ... ... ... ... ...551i,6044,Z 
 
 Is or is not 
 Effectual to 
 
 Clinch an Offer, if rendered even in part, ... ... I486 
 
 Confer priority over a previous 
 
 Annuity, unless registered, ... ... ... 465£-6e 
 
 Bankruptcy, ... ... ... ... ... 571c-4ft 
 
 Crown-debt, unless registered, ... ... ... 465e-£,-6e 
 
 Disentailment, unless previously enrolled ... ... 461)/,'/ 
 
 Execution or Judgment, unless registered, ... 463a-5d!,-66e 
 Fraudulent or Gratuitous dealing, unless accepted inno- 
 cently and for value ... ... ... 539A-A,G01-9 
 
 Registrable dealing, ... ... ... ... 407c, -9i-n 
 
 Representation ... ... ... 80a"2,397/L,/2 
 
 Requisite to 
 Confer Priority (over a previous transaction) on a 
 
 Creditor ... ... ... ... ... 539A 
 
 Crown's claim for forfeiture ... ... ... 539/ 
 
 Heir-in-tail ... ... ... ... ... 539A 
 
 Purchaser, Mortgage, &c, ... ... 463a-6ff, 601-9 
 
 Registered disponee ... ... ... ... 407'', -Vi-n 
 
 Rebut presumption of fraud agt., and so prevent postpone- 
 ment to, subsequent 
 Bankruptcy-creditors seeking priority on the ground of 
 
 Cessio honor um : see ... ... ... ... 585c-7v9/7 
 
 Fraud agt. creditors ... ... ... ... 000/ 
 
 Fraudulent Preference ... ... ... ... ~>'Xui-// 
 
 Voluntary Settlement ... ... ... .. 597/, 6 
 
 Composition-creditors ... ... ... 144e-g, and see SQOm 
 
 Creditors in other cases ... ... ... ... 543«-7/ 
 
 Purchasers, Mortgages, &c, ... ... ... fiOG//-/ 
 
 Purchaser under Irish Bankruptcy, ... ... 598a, 600//, 6 
 
 Support a dealing against 
 Party, &c, whether the dealing be a 
 
 Bill of Exchange ... ... ... ... 142A,i 
 
 Contract 
 
 In general ... ... ... ... 142^-3/i! 
 
 To fulfil a duty ... ... ... ... 144 W 
 
 Disposition ... ... ... ... 143/-/ 
 
 Promise, see " C. is . . . support a Contract." 
 
 Promissory Note ... ... ... ... 142 j,h 
 
 Release of' claims, ... ... ... 143e [and 1. 18-24] 
 
 Representation ... ... ... ... 99,495 ej 
 
 Creditors and Purchasers, see " C, is ,.. rebut presumption 
 of fraud,"
 
 INDEX. lxvii. 
 
 Sufficient in its nature to 
 Support ;t dealing agt. the 
 
 Part}', &c, whether the dealing lie 
 
 In general, any dealing ... ... 112« (i.), 143jin-5iii 
 
 In particular, a 
 
 Composition ... ... ... ... 144e-a 
 
 Compromi.se ... ... ... ... 144-5 
 
 Contract to transfer burthened property ... ... 145rr, 
 
 Release of a debt ... ... ... 144c-# 
 
 Representation ... ... ... ... 1-lob-d 
 
 Creditors, whether the dealing be 
 
 In general, any dealing ... ... 552 <ncd. -61<<, 
 
 In particular, a 
 
 Promissory note ... ... ... 14'2>i (n. ),//«. 
 
 Q ims ('-partnership ... ... ... ... 000 
 
 Purchasers, Mortgagees, &c. ... ... refs. from 606b 
 
 Registered purchaser, &c. ... ... ... 40'Jr 
 
 Statement of, [and see " False statement of consideration] in a 
 
 Bill of ' Sale, is necessary and sufficient : when, ... ... 5l9k-m, 
 
 Disposition of any kind, 
 Is not necessary to prevent postponement to subsequent pur- 
 chasers, &c. ... ... ... ... ... 4576 
 
 Prevents use from resulting ... ... ... ... 327 e-f 
 
 Transfers the beneficial estate, generally, ... ... 32oj,k 
 
 Consolidation of Mortgages ... ... ... ... 330-9c 
 
 Consols, op Married Woman are separate estate : when, ... 60i 
 
 Construction : 
 
 Ambiguity may be solved by, ... ... ... ... 105 
 
 Conditions of Sale are construed agt. the vendor ... ... 100 
 
 Knowledge of the Law is not assumed in, ... ... 268 f (,b, -7 3< I, f 
 
 Perpetuity-rule may not be evaded by, ... ... ... 268 a, b 
 
 Thelluson Act may not be evaded by, ... ... ... 273d-f 
 
 Constructive Notice : 
 Agent affecting principal : " see Imputative Notice." 
 
 Chose in action : priority of, is not regulated by, ... ... 433£ 
 
 Denned ... ... ... ' ... ... ... 416n.(i.) 
 
 Explained ... ... ... ... ... 444?»erf.-62»i 
 
 Registered deed : whether affected by, ... ... ... 407 d-h 
 
 Solicitor affecting client : see " Imputative notice." 
 
 Constructive Uses and Trusts ... ... ... 322a-3A-,-24j 
 
 CONTEMPORANEA EXPOSITIO ... ... ... 100 
 
 Contingent 
 
 Defined _ ... ... ... ... ... ... 224 
 
 Interest is disponable and transmissable ... ... ... 225 
 
 Limitation is construed as vested : when, ... ... 227 »icd.-Sd,/t,b 
 
 Remainder is 
 Invalid : when, owing to 
 
 The Perpetuity-rule ... ... ... ... 203 
 
 Its own peculiar rules ... ... ... 2176-86, -03n.(i.) 
 
 Not construed as an executory or shifting clause ... ... 217// 
 
 Unless limited since 1877 ... ... ... ... 2186 
 
 Continuance in Possession is evidentiary of fraud agt. creditors 550/-l/i 
 
 Continuous considerations ... ... ... ... 4S
 
 Ixviii. CNDEX. 
 
 Contkaci [including points common to Covenants and other con- 
 tracts, but not points peculiar to the hitter, for which wee "Coven- 
 ant."! 
 Acceptance of offer is necessary to, &c. : see "Acceptance." 
 Advance on security of, is subject to Incumbrances affecting the 
 
 promisor's interest ... ... ... ... •■• 402n.(ll.) 
 
 Assent to, must be adequate ... ... ... ••• 113-5 
 
 Bankruptcy-creditors are entitled to displace, see esp. 5T7/,-88a-A,-98&-j',6OOc-0 
 
 Beneficial to a third person, is a kind of testamentary disposition 83 
 
 Binds the estate ... ... ... ... ••• 75-6i,84itt. 
 
 Conditionally on title being shewn ... ... ... 84-5 
 
 Only as between the parties ... ... ... ... 155a,6 
 
 Communication of offer is necessary to, ... ... ... 107 
 
 ( 'onstruction of : see " Construction." 
 
 Dependent on another contract ... ... ... ... 29oc 
 
 Definitiveness is necessary to : see " Definitiveness." 
 
 Effect of, on property... ... ... ... ... 84&-93£ 
 
 Evasion of, frustrated... ... ... _ ... ••• 354fi 
 
 Formal contract : stipulation fur, betokens indetinitiveness : when, 'M'xi-r. 
 
 Formalities for : see " Formalities :" esp. ... ... ... 178a-9g 
 
 Heirs are bound by : when, ... ... ... ... '169a-g,a\ 
 
 Immoral, is void ... ... ... ... ... 199a*d 
 
 Income passes to purchaser, and interest to vendor ... ... 80 
 
 In derogation of the Irish Land Act is void ... ... 200cl 
 
 Infant's, is invalid : when, ... ... ... ... 114«,117f-i 
 
 Intelligibility is necessary to, ... ... ... ... 105-7« 
 
 Intention to contract is necessary to, ... ... ... 946-5/ 
 
 Is terminated : when, by 
 
 Death ... ... ... ... ... ... 109M 
 
 New contract ... ... ... ... ... 1(%1 
 
 Letters : contract by, 
 
 ( lompleteness of, ... ... ... ... ... 102c 
 
 Mutuality in, ... ... ... ... ... 146fin.~8a 
 
 Lunatic's, is invalid : when, ... ... ... ... 116a-7«6 
 
 Married woman's, is void : when, ... ... ... 137£,141'£ 
 
 Misleading, is not specifically enforcible : when, ...286e,-87i,-92e,A,A,£,-94A 
 
 Offer must be 
 Accepted : see " Acceptance of offer.'' 
 Communicated : see " Communication of offer." 
 
 Operates as a disposition of the beneficial interest ... ... 84c 
 
 Privity of : see " Privity." 
 
 Registration of, as regards property in register-county 40r>/,A',-6<v7",/» 
 
 To settle is affected by the rule in Shelley's case : how far, ... 239-40/ 
 
 Unlawful, is void ... ... ... ... ... 199a-d 
 
 I Tpon honour ... ... ... ... ... %{/ 
 
 Value rendered for, entitles promisee to "displace preceding incon- 
 sistent gift... ... > ... ' ... ... ... 601? 
 
 Who may sue upon : see " Privity." 
 
 Convent : gift to, is void for Perpetuity : when ... ... 274n.(n.) 
 
 Conveyance : 
 
 Acceptance of, by purchaser, precludes him from 
 
 Compensation for Misdescription ... ... ... 309c-£ 
 
 Rescission on certain grounds ... ... ... ... 283i. ,b,d 
 
 Breach of Stipulation to make, exonerates purchaser ... ... 296</-7/ 
 
 Conveyancing : 
 
 Common forms of, ... ... ... ... ... *'2c 
 
 Description of person should specify his name when practicable ... 283? 
 Frame of 
 
 Married Woman's power to make a will ... ... ... 139-40
 
 INDEX. Ixix. 
 
 Mortgage of property which is burthened with covenants ... 173c 
 Settlement in 
 
 Equal shares ... ... ... ... ... G66-7c 
 
 Nature of an entail of 
 
 Chattels ... ... ... ... ... 65-6 
 
 Freeholds ... ... ... ... ... <;:',-'> 
 
 Trust of property which is burthened with covenants ... 173c 
 
 Will resembling a settlement ... ... ... ... 07 mcd.-S 
 
 Conviction: effect of, on property ... ... ... 70d 
 
 CONVICT'S wife seems competent to dispose of property ... ... 138« 
 
 Co-owner is or is not entitled to 
 
 Dispose of his share ... ... ... ... ... 270 
 
 Lien for expenditure ... ... ... ... ... 3336-c,-4y 
 
 Require Sale or Partition ... ... ... ... 270'./, e 
 
 Copyhold : 
 
 Customary rights in, ... ... ... ... ... 12-3 
 
 Enfranchisement of, ... ... ... ... ... 18 
 
 Fines accruing from, before time for completing sale of manor, 
 
 belong to vendor ... ... ... ... ... 81c 
 
 Husband is entitled to courtesy out of : when, ... ... 44c 
 
 Legal estate in, is transferable : how, ... ... ..A'23d-i,-ia-c 
 
 Lord's 
 Fines, see a little above. 
 
 Incumbrances affect : when, ... ... ... ... 3S3-6 
 
 Interest in, explained, ... ... ... ... 10 
 
 Power to appoint the use of, is valid ... ... ... 215c 
 
 Purchaser of, cannot be required to acsept freeholds instead, nor 
 
 conversely, ... ... ... ... ... 3Q5i-j 
 
 Shifting U3e affecting, seem3 valid, ... ... ... 215c 
 
 Use in, is not within the statute of uses, ... ... ... 410c 
 
 Wife is entitled to dower out of : when, ... ... ... 43e 
 
 Copyright : Legal estate in, is transferable : how, ... ... 426/1 
 
 Cornwall: Restrictions on disposition of dutchy lands... ... 369A 
 
 Corporation : 
 
 Denned ... ... ... ... ... _ ... 277 
 
 Dissolution of, revests its fe^simple estates in the donor, not in the 
 
 lord ... ... ... ... ... ... 4Sc 
 
 Formed : how, ... ... ... ... ... 277 
 
 Is 
 
 Competent to dispose of property : when... ... ... 338,-9t-706 
 
 Entitled to acquire property ... ... ... ... 277-8 
 
 Subject to forfeiture in certain cases ... ... ... 278a-9«j 
 
 Use for which it holds is not clothed with the legal estate ... 440o 
 
 Corporeal property defhi.:! 
 
 Counsel: Notioe to, is imputed to client ... ... ... 459m 
 
 Counterclaims affect assignee of contract, according as the latter i-< 
 
 Enforcible ... ... ... ... ••• •■• 153ff-5b 
 
 Negotiable ... ... ... ... ... ... 156c-e 
 
 Neither ... ... ... ... ... ... 154c-/ 
 
 COURT: Purchaser under, can be postponed by notice ... ... 410-22 
 
 App. 10.
 
 [XX. 
 
 IM.KX. 
 
 Covenant, [and see "Contract."] 
 Assignment of Leasehold, &c, exonerates from, 
 For freedom from Encumbrances takes priority over previous grat 
 uitous disposition 
 
 Is value sufficient to protect a dealing agt. subsequent creditors 
 Lease framed as, is effectual 
 Runs with the land, &c, or not, so as to 
 Bind the covenantor to 
 Damages 
 
 Specific Performance 
 Entitle the Covenantee to 
 Damages ... ... ... ... L57a-9a 
 
 Specific Performance 
 To 
 Apply Purchase-money, is postponed to subsequent dealing for 
 value 
 
 Not sue ... 
 
 Renew lease, is not binding after breach of lessee's covenants ... 
 Settle on wife or children, is void agt. bankruptcy-creditors : 
 when, 
 Stand seized 
 
 I75d-g 
 
 599c 
 
 553e,d,-5e,/ 
 
 394d 
 
 170a-3/,-3M 
 173-56 
 
 8iljl,441a,& 
 L59&-6L 
 
 605n.fi.) 
 
 2lin.J,n 
 
 298A2 
 
 595e 
 76, J38d 
 
 OnANwouiJi'-s (Ln.) Act 
 
 oo2f'-7^,'c 
 
 CeEDITOB : 
 Acquiescing in trust-deed, renders it effectual 
 Assenting to disposition, is precluded from invalidating it 
 Defined with reference to the judgment-registry acts ... 
 Forbearance by, is 
 
 Impliedly agreed for by acceptance of security ... ...lll",-">17./-« 
 
 Insufficient consideration to protect a dealing agt. bankruptcy- 
 creditors... 
 
 Sufficient perhaps agt. other creditors 
 In or under 
 
 Administration, delaying to enforce his claims is not thereby 
 barred ... 
 
 Bankruptcy : see "Bankruptcy creditors." 
 
 Execution: see " Creditor : Judgment-cr." 
 
 Winding-up : see " Winding-up-creditors." 
 
 100 
 
 548a, 6 
 
 I63n.(i.) 
 
 553eJ 
 
 i98c-h 
 
 Is 
 
 Bound by contract between the debtor (who has since become 
 bankrupt or died insolvent) and the surety ... ... 105-6 
 
 Entitled to 
 Benefit of a contract which the debtor had made with a surety : 
 when, ... ... ... ... ... 165/-6 
 
 Lien on the assets of his deceased debtor ... ... . ,: >7-8,-8« 
 
 Priority over 
 Bankruptcy-creditors' claim to chattel which they have al- 
 lowed the debtor to appear as owner of whilst lie traded ... 499#-n 
 Disponees, &c, of Chattels : see "Bill of Sale Acts." 
 Fraudulent conveyance or dealing ... ... ... 539a-61a 
 
 In respect of what debts ... 539&,-40?,«i,-la,&,i,-2f/ x ;',£ 
 
 Judgment, &c, if collusive ... ... ... 540d 
 
 Purchase of Assets of deceased debtor ... ... 346-7 
 
 Not authorized to 
 Assign his debt to the King... ... ... ... 208«1 
 
 Not entitled to 
 Alimentary provision made for the debtor (perhaps) ... 246/ 
 
 Lien for fraudulent expenditure ... ... ... 547i 
 
 Payment, unless he can release the legal right of action ... 404gr 
 
 Priority by the Legal estate ; whether he claims under 
 
 Bankruptcy, &c, ... ... ... ... 399e , ) / 
 
 Judgment,' or the like ... ... ... 399fif-A',400a-/
 
 INDEX. Ixxi. 
 
 Trust-disposition ... ... ... ... 402c 
 
 Priority over a dealing- as having been 
 
 Assented to by him ... ... ... ... 548a,6 
 
 Fraudulent against purchasers ... ... ... 005/-/// 
 
 Gratuitous ' ... ... ... ••• ■•• 548a,5 
 
 Subject to set-off though he derives by assignment from the 
 
 original creditor ... ••■ ••• •■■ M5g,k 
 
 Judgment-creditor 
 Attaching- a debt, is 
 
 Not entitled to the benefit of securities _ ... ... 335/ 1 
 
 Protected agt. subsequent bankruptcy- or winding-up-credi- 
 
 tors ... ... ... ... ••• ...5Q7e,-72d,e 
 
 Collusive, is postponed to subsequent creditors : when, ... 540r/ 
 Is 
 
 Entitled to 
 ( tharge or lien on debtor's 
 
 Chattels ... ... ... ... ... SMm,n 
 
 Hereditaments 
 
 From what time ... ... ... ... 420/; -s 
 
 _ To what extent, &c. ... ... ... 334^-5/, 420/ 
 
 Priority over 
 
 Execution in Ireland ... ... ... ... 563d 
 
 Interest of which he had Notice : when, ... ... 420d,n.(l) 
 
 Revocable disposition ... ... ... ... 605m 
 
 Sequestration in Ireland... ... ... ... 563e 
 
 Unregistered disposition of a tenement in Ireland or the 
 
 North Hiding- ... ... ... ... 502;/,/; 
 
 Protection against 
 Bankruptcy : when, 57lf,ff, -2'?, e, I, -Sa-eJ, o, r, s, -4 1, i, 59§/-600a 
 
 Purchase with Notice : when, ... ... ... 4176,/ 
 
 Not entitled to 
 
 Estates which have been displaced under a power ... 353/-/, -Girt 
 
 Money which the debtor has paid to the sheriff ... ... 98cl 
 
 Priority by 
 Legal estate ... ... ... ... M6f,g,-99g-400f 
 
 Registration ... ... ... ... ... il0f-i,k-p 
 
 Priority over a dealing- as fraudulent against purchasers, < ir 
 
 as gratuitous ... ... ... ... ... GOSi-m 
 
 Not precluded (by giving a warrant, secretly conditional, to 
 enter satisfaction) from enforcing his lien agt. a subsequent 
 
 purchaser ... ... ... ... ... 456*7 
 
 Postponed or not to 
 
 Landlord distraining ... ... ... ... 562a-c 
 
 Registered dead ... _ ... ... ... 408e-l,n (i) 
 
 Notice is imputed to execution-creditor : when, ... ... 575n-r 
 
 Purchasing goods which he had seized under an execution, 
 
 cannot hold them agt. bankruptcy-creditors of the debtor 584m-5b,-91g 
 
 Registering, is protected agt. purchasers : when, ... ... 463-5,-6 
 
 Judgment-Mortgagee in Ireland 
 Is 
 
 Entitled to priority over dealings as fraudulent agt. him ... 599c 
 
 Not entitled to priority by the Legal estate ... ... 34G;/,400c 
 
 Postponed to bankruptcy-creditors : when, ... .. 599c, d 
 
 Registering, is protected agt. purchasers, &c. ... ... 4G4/>,r/ 
 
 Registration of Satisfaction of security of, revests the estate ... 442c 
 Of 
 
 Banker, is entitled to priority over certain dealings ... ... 5G2/-3c 
 
 Deceased [and see " Cr. is entitled to Benefit."], is entitled to 
 
 Enforce his claims notwithstanding delay ... ... 498c-h 
 
 Lien on the assets... ... ... ... ... 37-8 
 
 Priority over purchaser of chattels : when, ... ... 404// 
 
 Tradesman in Ireland is entitled to priority over certain dealings 562/ 
 Trust-disposition for creditors in general : 
 
 Acquiescence in, ... ... ... ... ... 100
 
 lxxii. INDEX. 
 
 Act of Bankruptcy (is an,) ... ... .. ... 5680 
 
 Agency-deed: ... ... ... ... 98-9,323n.(a) 
 
 Bills of Sale Act does not apply to, ... ... ... ~Ali 
 
 Conditions of, must be strictly fulfilled ... ... ... 31Ga 
 
 Js not 
 
 Postponed to particular creditors ... ... ... 54Sq-7f 
 
 Protected by the legal estate ... ... ... 402c 
 
 Is or is not 
 
 Postponed to 
 
 Bankruptcy-creditors ... ... ... :<l7i-C0(j,-81k-2b,2o 
 
 Purchasers, Mortagees, &c. ... ... ... 517/,G03/j 
 
 Winding-up-creditors ... ... ... ... 581/t-2fr 
 
 Operates to confer authorities only ... ... 98-9,323n(a) 
 
 Unless acquiesced in ... ... ... ... 100 
 
 Registration as Bill of Sale is not necessary for, ... ... 51.7 i 
 
 Crops are within the Bills of Sale Act : when, ... ... 512Z 
 
 Crown : 
 
 Assignment to, of debt owing to another, is void ... ... 20Sal 
 
 Debt owing to, 
 
 Binds the heir or devisee ... ... ... ... 334<yl 
 
 Is nut 
 
 Postponed to 
 
 Bankruptcy-creditors ... ... ... ... 571a, & 
 
 Except as regards an extent in Ireland ... ... 600 
 
 Legal estate ... ... ... ... ... 400i 
 
 Protected by the Legal estate ... ... ... 400/ 
 
 Is postponed to purchaser, &c. , unless registered, ... ... 4G5,-G<? 
 
 Fraudulent conveyance to, is postponed to purchaser for value ... 004^ 
 Is 
 Entitled to 
 
 Chattels of intestate ... ... ... ... 35^/ 
 
 Levy its debts on lands of which the debtor has revocably dis- 
 posed ... ... ... ... ... ... 605n.(n.) 
 
 Lien for debts ... ... ... ... 3Ml,-63a-d,-71p,q 
 
 Priority, in respect of forfeitures, over fraudulent conveyances, 
 
 judgments, &c. ... ... ... ... ... 539/ 
 
 Is not 
 Bound by statutory enactments, as, the 
 
 Bankruptcy Acts ... ... ... ... ... 571a, 6 
 
 Settled Estates Acts ... ... ... ... 371e 
 
 St. of Uses ... ... ... ... ... 440/m,h 
 
 Unless made to remedy fraud, &c. ; as, the 
 
 St. agt. Fraudulent conveyances ... ... ... 604a 1 
 
 Competent to make certain dispositions ... ... ... 3GGa 
 
 Precluded from requiring Restitution of anything parted with by 
 
 mistake ... ... ... ... ... ... 283/ 
 
 Limitation of Actions by, ... ... ... ... 24a 
 
 Curtesy : Husband's estate by, in wife's 
 
 Ordinary property ... ... ... ... ... M,-7d,f 
 
 Separate property ... ... ... ... ... 59 
 
 Custom 
 
 Rights created by ... ... ... ... 12-3 
 
 For Public to take profit from soil is void ... ... ... 29 
 
 CY PRES doctrine 
 
 Generally ... , .. ... ... ... ••• 235a, -41-4 
 
 Is applicable to a limitation to a 
 
 Charity ... ... ... ... ... ••• 241&
 
 INDEX. 
 
 Ixxiii. 
 
 Person for life and then to his children in tail, under a power 
 authorizing a limitation to himself only ... ... ... 244 
 
 Person and his issue ... ... ... ... 241-3 
 
 Damages 
 For 
 Breach of a contract which is 
 Beneficial to a third person 
 Incomplete, but has been acted on 
 Fraud are granted along with rescission ... 
 Loss of purchaser's bargain when title bad 
 In Equity 
 Liquidated ... 
 
 Death 
 Intestate : Limitation to take effect on, is void 
 Terminates 
 
 Incomplete Contract 
 
 Offer 
 
 Bight to relief on the ground of Mistake : when, 
 
 Debenture : 
 Legal estate in, is transferable : how, 
 Priority of : see 
 Under the Land- Acts 
 
 lG2t* 
 
 104e 
 
 114/t 
 
 103-4 
 
 Ap. xiii-xiv 
 
 312c- i 
 
 221/ 
 
 10941 
 109A. 
 282^ 
 
 42&fc,?,w,-6* 
 
 433« (r,-84c,d 
 
 ... 4SSmAd 
 
 Debtor : see " Creditor " 
 
 Deceased Wife's Sister's children : gift to is void : when, 
 
 202a 
 
 Declaration of Title (England) 
 [See also " Land Transfer Act," _ Registration of Title."] 
 Court may 
 . Grant it 
 Annul or vary it 
 Effect of, 
 Who may ask f or, 
 
 Declaration of Trust 
 Explained ... 
 Formalities for ensuring deliberation are necessary to : when, 
 
 486* 
 
 487«-r' 
 
 487 
 
 486>s 
 
 1246, c 
 123-4 
 
 Deed [and see "Deposit of Title-deeds," Registration of Deeds," 
 "Title-deeds," " Disentailing-deeds."] 
 Is 
 A Formality : when 
 Necessary to the transfer of the Legal estate : ... ... 424/*-/> 
 
 Sufficient, for a 
 Gratuitous disposition ... ... ... 123a,125 and n.(e) 
 
 Transfer of the Legal estate ... ...• 423 II., andn.(n.) 
 
 Invalidated by Misrepsentation ... ... ... 291n.(mj 
 
 Of Gift, unusually or imperfectly framed, must be explained to the 
 donor ... ... ... ... ... ... 128a 
 
 Deer in Park pass with the Land 
 "Defeasible" defined... 
 Defective Disposition 
 
 6 [7.21] 
 225a 
 77b, c
 
 lxxiv. IXDKX. 
 
 Deficiency in tlio subject contracted for renders 
 Purchaser sometimes entitled to 
 
 Abatement ... ... ... ... ... 319i-20Z 
 
 Indemnity ... ... ... ... ... Z21a-d 
 
 Rescission ... ... ... ... ... 321/ 
 
 Specific performance ... ... ... 3l8a-q,-9a-h 
 
 Vendor disentitled to specific performance... ... ... 305A,-6a-m 
 
 DEFINITIONS see each word in its place in this Index. 
 
 Deeinitiveness 
 
 Defined ... ... ... ... ... ... 95,-6»'« 
 
 Deemed to exist : when, ... ... ... ... 95g-7a 
 
 Necessary to 
 
 Bequest ... ... ... ... ... S7c 
 
 Contract or Disposition ... ... ... ... 95#-6c 
 
 Revocation ... ... ... ... ... 976 
 
 Delay precludes from relief 
 
 In general ... ... ... 30de,-lb 
 
 In particular : from 
 Recovery against 
 
 Adverse possessor ... ... ... ... 28-9,30<7,e 
 
 Fiduciary who has gained an advantage by his position ... 195-6 
 
 Rescission on the ground of 
 
 Fraud, see ... ... ... ... ... 291/ J 
 
 Mistake ... ... ... ... ... 281// 
 
 Specific enforcement of contract ... ... 31a,6,303&^ 
 
 Deliberation, formalities for ensuring .., ... ... 122-7 
 
 Delivery of 
 
 Bill of Lading, in disposing of cargo ... ... ... 428/-/ 
 
 Document of Title, in disposing of chose in action ... 425g-x,-6h-m,-9k-m 
 
 Goods, in disposing of them ... ... ... 125p,428< l,e,-%bj,g 
 
 Though in Sheriff's custody ... ... ... ... 428/« 
 
 Is protected agt. Bky -creditors : when, ... ... 471 / 
 
 Dependent, &c, Covenants and Promises : 
 
 Compensation for breach of independent, ... ... 3Q8g-9k 
 
 Preclusion from rescinding on account of breach of dependent, ... 307A-8/ 
 What are 
 
 Dependent, [and see Contents, ch. XXXVI.] ... ... 294a-96 
 
 Independent, ... ... ... ... ... 306o-7.'/ 
 
 Deposit of 
 Part of purchase money, Vendor is entitled to retain : when, ... 312n.(i) 
 Title-deeds or certificates of 
 Land 
 Recorded, is valid or not as to 
 
 England ... ... ... ... ... 491f,/ 
 
 Ireland ... ... ... ... ... 480«,r- 
 
 Unrecorded 
 
 Priority of, over a previous dealing which was 
 Fraudulent or Gratuitous ... ... ... 605p,-6a 
 
 Registered ... ... ... ... ... 4067* 
 
 Writing unnecessary to ... ... ... 190*' 
 
 Ships ... ... ' ... ... ... ... 473./,A 
 
 Descent [and see " Devolution "] occurs 
 From whom ... ... ... ... ... 45f-6merf.
 
 INDEX. Ixxv. 
 
 To win mi 
 
 In general ... ... ... ... i5c,d,4G med,-8 med 
 
 Of 
 Estates-tail and Fees-conditional ... ... ... 50a-c 
 
 Resulting Uses ... ... ... ... ... 4382 
 
 Description of 
 
 Property by* map ... ... ... ... ... Ap, iii. 
 
 Property of contracting parties, is 
 
 Explicable by oral evidence..; ... ... ... 105b,i,-82e 
 
 Sufficient: when,... ... ... ... ... 182n.(6) 
 
 Deterioration in subject of contract ... ... ... 308,/ 
 
 Devisee is 
 Bound to give up to an incumbrancer, to whose charge the devise 
 is subject, the benefit <>f any advantage he obtains ... ... 195 [I. 10] 
 
 Liable to his devisor's contracts : how far, ... ... ... 168-9 
 
 Devolution, 
 
 Limitation varying the course of : is void ... ... ... 221/-3a 
 
 Of 
 
 Chattels ... ... ... ... ... 33.43 
 
 Tenements : see " Descent." 
 
 "Die leaving issue; "see ... ... ... ... 230 
 
 Director of Company is bound 
 As having represented that an 
 Incumbrance which he holds but has neglected to register does 
 not exist ... ... ... ... ... 806 
 
 Share certificate designating a person as legal holder is correct... 50(>/- 
 
 To yield to the Co. any profit he makes ... ... 195fl 
 
 Disability : 
 Dispositions of estates of persons under : 
 
 Chancery may authorize. ... ... ... ... 865«t 
 
 Fiduciaries may make, ... ... ... ... 3(i7" 
 
 Persons under, may make, ... ... ... ... 3086 
 
 Limitations, Statute of, is suspended by, ... ... 28/, undn.(f) 
 
 Discharge, see "Receipt." 
 
 Disclaimer 
 By Bankruptcy-trustee ... ... ... ... 7'2x-f 
 
 In general : 
 Nature and effect of : ... ... ... ... l'JOt-10 
 
 Formalities for, as to the 
 
 Beneficial estate ... ... ... ... ... 127c 
 
 Legal estate ... ... ... ... ... 430d-f 
 
 Is precluded : how,... ... ... ... ... 110a;6 
 
 DISCONTINUANCE of possession, as commencing a title under the Sta- 
 tute of Limitations ... ... ... ... ... 27 
 
 Disentailing deed 
 Confirms previous voidable disposition ... ... ... 354/,o 
 
 Takes priority, if for value, over a previous disposition which is 
 
 Fraudulent or Gratuitous ... ... ... ... 601A,-4c 
 
 Unenrolled ... ... ... ... ... 4<66f-h
 
 l.\\\ i. 
 
 INDEX. 
 
 Disposition 
 
 Compared with Contract 
 
 Is void or displaced 
 I n genera] 
 
 For Unlawfulness ... 
 For Informality [see " Formalities."] 
 
 Agt. particular persons : see "Bankruptcy-creditors," "Credi- 
 tor," "Purchaser," " Winding-up-creditors." 
 Under a Power : see " Power." 
 
 Of estate which the disponor has not 
 
 75 
 
 11 ii 
 199 
 
 77«-c 
 
 77<(-Sc 
 
 Distress is deemed to be 
 
 Fraudulently anticipated by Execution creditors ... ... 562«-c 
 
 Impliedly stipulated for in contract to grant a rent ... ... 'SOi/u 
 
 Valid against 
 
 Bankruptcy-creditors ... 513/,£/,n.(i.),-7.y',/>'>-79,/f«.-80A',-S66-?i 
 
 Creditors... ... ... ... 5Y3f,rj,n.{i.),-7j,k,-G2a-c 
 
 Purchasers and grantees ... ... ... ... 539n.(n.) 
 
 DISTRINGAS, as a means of gaining Priority ... ... 434o 
 
 Dividends on Stock, accruing pending contract for sale of it, belong 
 to purchaser... ... ... ... ... ... 88 
 
 Divorce as affecting property ... ... ... ... 69 
 
 Doctors of Civil Law are authorized to make dispositions ... SOW 
 
 Doctrine in EXPARTE WARING ... ... 165-6, 175/i-7c 
 
 DONATIONES MORTIS CAUSA ... ... ... ...83,126,179/) 
 
 Double Possibility ... ... ... ... ... 223, -63,/ 
 
 Doubtful Equity, whether void agt. purchaser with notice ... 417i 
 
 Dower : 
 Allowed, when 
 Bar of, 
 
 Election between it and devise from husband 
 Forfeiture of, 
 Inconvenience of, 
 Priority of, over a dealing which is 
 
 Fraudulent agt. purchasers, or Gratuitous 
 
 Legal estate, protected by the,... 
 
 Power, made under a, 
 
 Revocable 
 Uses to bar, 
 
 Drafting : see " Conveyancing." * 
 
 Drainage 
 Boards in Ireland are authorized to make dispositions . . 
 Certificate, Legal estate in is transferable : how, 
 
 Drunkenness invalidates dealings.,. 
 
 Duration of 
 
 Interest agreed for, must be stated 
 
 Unless acts have been done in reliance on the agreement 
 Power of disposition ... 
 
 43,54,57£,/,421[7. 10] 
 
 56-7 
 
 112 
 
 41-5 
 
 56 
 
 605/Y 
 ...399c?, 421c, f 
 3616 
 005/Y 
 56-7 
 
 306y 
 426jj 
 
 119-20 
 
 10b? 
 1046 
 269
 
 INDEX. lxxvii. 
 
 Dukess ... ... ... ... ... 134i.,«ncZn.(i.) 
 
 Duty 
 
 Conflicting with Interest ... ,,. ... .,. 191-8 
 
 Fulfilment of, is not sufficient to support a contract ... ... 1446-A 
 
 Easement 
 
 Barred by grant for Artizans' and Labourers' dwellings ... 371«,o 
 
 Cannot be appurtenant to land unless beneficial to it ... ... 8n.(i.) 
 
 Defined ... ... ... ... ... ... 2,8n.(l.) 
 
 Disentitles Vendor to enforce contract ... ... ... 305c, -6t 
 
 In gross ... ... ... ... ... ... 8 and n.(l.) 
 
 In restriction, dstd. fr. easement in user ... ... ... 9c 
 
 Legal estate in, is allowed : when, ... ... ... 2-3 
 
 Must be definite ... ... ... ... ... 9a,b 
 
 Of Support, is or is not within the Prescription Act ... ... 33a : 
 
 Ecclesiastical 
 Benefice : Incumbrance on, is no objection to the title to the Ad- 
 
 vowson ... ... ... ... ... ... 306n.(i.) 
 
 Commissioners, for 
 England 
 
 Are authorized to make dispositions ... ... ... 363/, -4c 
 
 Estate of, vests on appointment ... ... ... 44b/ 
 
 Ireland ... ... ... ... ... ..." 364<t 
 
 Corporation : 
 
 Limitation of actions brought by, ... ... ... 246,369./ 
 
 Trustees of lands held under, are authorized to make dispositions 366/; 
 
 Leases ... ... ... ... ... ... 364c,/ 
 
 Persons 
 Are authorized to 
 
 Exercise Powers of Agricultural Holdings Act ... ... 3646 
 
 Make Leases ... ... ... _ ... ... 364c,/ 
 
 Claiming for dilapidations, are entitled to set aside certain dis- 
 positions of chattels... «... ... ... ... 5G2d 
 
 Estate of some, vests on appointment ... ... ... 441/ 
 
 Purposes ... ... ... ... ... ... 368a" 
 
 Education : grants for, ... 
 
 Ejectment: Judgment in, does not bind the right ... ... 746 
 
 Election 
 By 
 Married Woman is 
 
 Requisite : when,... ... ... • •• ••• 1116 
 
 Valid : when, ... ... ... ... ... 138/-A 
 
 Parties deriving under the Crown, is not requisite ... ... 1116 
 
 Widow: between devise from her husband and dower ... 1126 
 
 For or agt. a disposition . ... ... ... ... 110-2 
 
 Emblements : ... ... ... ... ... 5 
 
 Enfranchisement op Copyholds... ... ... ... 18 
 
 Entail 
 
 After possibility of issue extinct ... ... ... ... 233.7 
 
 Alienation of, may be authorized (it seems) on its creation ... pQmed. 
 Bar of 
 
 Generally ... ... ... ... ... 372-4 
 
 Of Money ... ... ... ... ... 372/ 
 
 App. 11.
 
 Ixxviii. INDEX. 
 
 Particular points 
 
 Confirms preceding disposition ... ... ... 346<i[/. 16] 
 
 Extends to which of the estates lying behind the estate-tail ... 2G0n.(i.) 
 Limited in purpose, is a complete bar : when, 51/,374/(,i,540o,604n.(i.) 
 Requires what 
 
 Consent ... ... ... ... ... 51(7,3736 
 
 Formalities ... ... ... ... ... 12(3-7 
 
 Intention ... ... ... ... ... 50n.(i.) 
 
 Restraint on Married Woman's power of disposition does not 
 
 not extend to, ... ... ... ... ... 139«" 
 
 Gyprds doctrine changes life interest into, ... ... ... 243a 
 
 Defined ... ... ... ... ... ... 49 
 
 Descent of,... ... ... ... ... ... 50 
 
 Heir to, is entitled to priority over a dealing made to defraud him 539A 
 
 Is implied : when, ... ... ... ... ... 243 
 
 Limitation to the issue sometimes vests an estate-tail in the ancestor 243a 
 
 Name derived, whence, ... ... ... ... 49n.(<y) 
 
 Of 
 Annuity : see " Fee-conditional." 
 
 Copyhold in which there is no custom to entail : see ' ' Fee-condi- 
 tional." 
 
 Estate for another's life : ... ,.. ... ... 53 
 
 Estate for years : ... ... ... ... ... 53 
 
 Money: see ... ... ... ... ... 75-6,372/ 
 
 Perpetuity-rule applies or not to limitation after, ... ... 260e-le 
 
 Entirety of Contract ... ... ... 18-9, 21, 194c 
 
 Entry 
 
 For breach of condition : its effect ... ... ... 358 
 
 Pursuant to contract 
 
 Is part performance of the contract ... ... ... 185-8 
 
 Precludes a purchaser from rescission ... ... ... 307*W 
 
 Equitable 
 Defence : see " Counter-claims." 
 Interest : see " Beneficial Interest." 
 Mortgage : see "Deposit of Title-Deeds." 
 
 Principles, adopted at law ... ... ... ...377cs/'.n.(i) 
 
 Equity : 
 
 Doubtful, is or is not valid agt. Purchaser ... ... ... 417t 
 
 He who seeks, must do ... ... ... ... 337o 
 
 Looks on that as done which ought to be done ... ... 75-6 
 
 Married Woman's, to Settlement ... ... ... GOk-lb 
 
 Origin of the Name, ... ... ... ... ... 375 
 
 Professed ground of interposition of, ... ... ... 375-6 
 
 To a Settlement ... ... ... ... ... Wk-lb 
 
 Escheat 
 
 Explained:... ... ... ... ... ... 47j,lc 
 
 Perpetuity-rule does not apply to, ... ... ... 261// 
 
 Possibility of Reverter is sometimes substituted for ... ... 48c-96 
 
 Essential Term 
 
 Explained:... ... ... ... ... ... 295*-6&,-9 
 
 Time is an, when ... ... ... ... ... 299//i.,303i 
 
 Other terms are, when ... ... ... ... 303//i-6«i 
 
 Estate 
 
 At will is a chattel interest ... ... ... ... 4 
 
 By Entireties ... ... ... ... ... 33n.(«)
 
 INDEX. lxxix. 
 
 Contracted for, different from that to which title is shewn , . . 3QC>f-k 
 
 For Another's life : see "Life-interest during life of another." 
 
 For Life : see "Life-interest." 
 
 For Years : see "Terms of Years." 
 
 From year to year : see " Tenant fr. y. to y-" 
 
 In Fee : see "Fee: Estate in." 
 
 In Common : see "Co-owner." 
 
 Joint [and see " Co-owner. "] ... ... ... 33n.(«),43<H, 
 
 Pur autre vie : see "Life interest during life of another." 
 Tail : see " Entail." 
 
 Estoppel : 
 
 Bastard is enabled to inherit by, ... ... ... ... 48a,b 
 
 Binds whom ... ... ... ... ... 78 
 
 By means of 
 
 Acknowledgement that one's rights have ceased : ... ... 505 
 
 Conduct : 
 
 Common-law Courts adopt, ... ... ... ... 377/ 
 
 Priority is conferred by, ... ... ... ...495m.-536o 
 
 False Recitals : transfers the legal estate, ... ... 77<',80-l 
 
 Feoffment: ... ... ... ... ... 77-8 
 
 Judicial decision : ... ... ... ... ... 73 
 
 Lease with entry : ... ... ... ... ... 77.;' 
 
 Operative words : ... ... ... ... ... 78-9 
 
 Inheritance by, ... ... ■•• ... ... 48a,6 
 
 Priority as affected by, ... ... ... 397/,495m.-536o 
 
 Estovers ... ... ... ... ... ... 136 
 
 Evidence: see " Oral Evidence." 
 
 Eviction of Purchaser by title paramount ... ... ... 150c 
 
 Excess entitling Vendor to compensation ... ... ... 32bj-i 
 
 Exchange : 
 
 Distinguished from mutual sale ... ... ... ... 298/ 
 
 May be made under the Statutory powers of the 
 
 Governors of Queen Anne's bounty ... ... ... 364 i 
 
 Inclosure Commissioners ... ... ... ... 3G4/,o 
 
 Incumbent ... ... ... ... ... 3G4c 
 
 Land Judges in Ireland ... ... ... ... 3G4£ 
 
 Local Inclosure Commissioners ... ... ... 3G4o 
 
 Trustees exchanging have also subsidiary authorities ... ... 307/ 
 
 Exchequer Bills and Bonds : Legal estate in, is transferable : how, 420/ 
 
 Execution: see " Creditor : Judgment-cr." 
 
 Executor and Administrator : [and see "Administrator," and, as 
 to points common to him with other fiduciaries, "Fiduciary."] 
 Assenting to a bequest 
 
 Formalities : need not observe, .. . ... ... ... 424n 
 
 Precludes himself from re-imbursement thereout ... ... 37///, /l 
 
 Priorities, affects : how,2 ... ... ... ... 3'Me 
 
 Title, does not clear... ... ... ... ... 386 
 
 De son tort is bound to yield up any profit which he makes ... 195/ 
 Is 
 Authorized to 
 Convey the subject matter of a 
 
 Contract for sale ... ... ... ... 53 c l 
 
 Mortgage ... ... ... ... ... 53c, cl
 
 Ixxx. INDEX. 
 
 Deal with the assets, whether he be a 
 
 Joint executor ... ... ... ... ... 22 
 
 Sole executor or otherwise... ... ... 38c-'Je,el,4l7t-v 
 
 Realise the assets... ... ... ... ... 162e-3a 
 
 Sue for injuries ... ... ... ... ... 153d, f 
 
 Bound to 
 Administer the assets 
 
 Generally ... ... ... ... 3G-7,39/-40a 
 
 Pending an administration-suit ... ... 3i3d, modified n.(i.) 
 
 Satisfy contracts, &c, which the testator 
 
 Made ... _ ... .. ... ... lOBa-g 
 
 Was liable to as assignee ... ... ... ... lllc-c 
 
 Yield up any profit which he may have made ... ... 105/ 
 
 Entitled to 
 
 Priority in respect of his lien ... ... ... 345A-2 
 
 Reimbursement and Lien ... ... ... 37 'e-1 ',-3/(1,-0/1 
 
 Not entitled to Purchase from himself ... ... ... 191A 
 
 Legal estate of purchaser from, without notice of a claim to set a- 
 
 side the sale as improvident, protects the latter agt. it ... 417.'/ 
 
 Profit made by, belongs to beneficiaries ... ... ... 195/ 
 
 Purchaser from : see " E. Assenting," "E. Authorized to," " E. 
 Legal Estate.." 
 
 Selling, Mortgaging, or Leasing, has subsidiary authorities ... 367 <i 
 
 Trust- and Mortgage- estates devolve to ... ... ... f>361 
 
 Executory 
 
 Clause: see "Limitation." 
 
 Interests 
 
 Are disponable and transmissible ... ... ... 225 
 
 Defined ... ... ... ... ... ... 224'/ 
 
 Perpetuity-rule affects : when... ... ... ... 2C5c,/ 
 
 Trust, as affected by the 
 
 Perpetuity-rule ... ... ... ... ... 2C>7h 
 
 Rule in Shelley's case ... ... ... ... 235^,239-40 
 
 Exparte Waring doctrine ... ... ... 165-6, -75A-7c 
 
 Expectant Heir: see " Unconscionable bargain. " 
 
 Expenditure 
 
 Is or is not deemed 
 
 Fraudulent agt. Creditors ... ... ... ... Ml(i,-7i 
 
 Part performance of a contract to purchase ... ... 185c 
 
 Lien for, ... ... ... ... ... ... 332-4 
 
 Expenses must be repaid to 
 
 Purchaser, if the title be bad _ ... ... ... ... 103-4 
 
 Vendor, under the usual conditions of sale ... ... ... 3Vlt 
 
 Express Trusts form an exception to the st. of limitations ... 28-9 
 
 Extent : 
 
 L\inkruptcy-creditors in Ireland are entitled to priority over, ... GOO 
 
 Defined ... ... ... ... ... ... G00n.(/<) 
 
 Extinguishment of incorporeal hereditament... ... ... 17,18-21 
 
 Factors' 
 
 Acts ... ... ... ... ... ... 509-11 
 
 Profits belong to their employers ... ... ... 195/
 
 INDEX. lxxxi. 
 
 Failure op 
 Consideration : see "C, failure of." 
 Heirs: see " Escheat. " 
 
 Issue : A limitation dependent on, is void by the Perpetuity-rule : 
 when, ... ... ... ... ... ••• 254n.(l.) 
 
 False statement of consideration does not prove a dealing to be 
 fraudulent agt. 
 
 Bankruptcy-creditors ... ... ... ... ... 577f,/ 
 
 Creditors in general ... ... ... ... ... 5446 
 
 Purchasers, Mortagees, &c. ... ... ... ... G(% 
 
 Father is not generally entitled to accept a gift from his child ... 132c-3/" 
 Fear invalidates a contract induced by it ... ... ... 132, -4a 
 
 Fee 
 
 Conditional : 
 
 Alienation of, bars the issue and others ... .,. 49c,(7,372«,c 
 
 Defined ... ... ... ... ... ... 48-9 
 
 Descent of, ... ... ... ... 49a and n.(a),50a-c 
 
 -Farm-grant in Ireland ... ... ... ... 3(396 
 
 -Simple : 
 
 Descent of, ... ... ... ... ... 45e-8mcd 
 
 llestraint on alienation of, see " P. on A."esp. ... ... 246n.-9a 
 
 Upon a fee, is void at common law ... ... ... 220/- n 
 
 Fee : [payment of] is claimable by prescription : when,... ... 30 [/. 17] 
 
 Felony affects property : how, ... .. ... ... 7Qd 
 
 Feoffment : 
 
 Estoppel by, ... ... ... ... 7& and n.{i.) 
 
 Explanation of, ... ' ... ... ... ... 77// 
 
 Infant is competent to dispose by, ... ... ... 1886 
 
 Fiduciary 
 Is 
 Authorised to make certain dispositions of the trust-pro- 
 perty ... ... ... ... 263a-70/i,csp. 366/;, -86-9/ 
 
 Bound to 
 Compensate for mistake arising from neglect to take legal 
 advice... ... ... ... ... ... 2S2o 
 
 Kelease any incumbrance which he has bought in : if re-im- 
 bursed... ... ... ... ... ... 197/,// 
 
 Seek legal advice ... ... ... ... ... 282o 
 
 Kescind a contract with his beneficiary induced by the latter's 
 mistake ... ... _ ... ... ... 282-/ 
 
 Yield up any profit he has made ; since becoming fiduciary ; 
 if re-imbursed ... ... ... ... 194h-~>e ;-G/l-/3,-7-8 
 
 Capable (not) of conferring priority over a beneficiary who has 
 committed to him the indicia of ownership ... ... 505-8 
 
 Entitled or not, to 
 Accept a gift from his beneficiary ... ... 132(/-/,-36-c?,-94/,# 
 
 Lien for 
 
 Expenditure ... ... ... ... ... 334/J 
 
 Sum which he had advanced to a beneficiary and has to re- 
 place ... ... ... ... ... 330-1 
 
 Purchase with intent to re-sell to his beneficiary ... ... 193-4 
 
 Sell to or purchase from 
 
 Himself _ ... ... ... ... ... 191e-/t 
 
 His Beneficiary ... ... ... ... ... 193
 
 lxxxii. INDEX. 
 
 Possession and apparent ownership by, do not entitle his bankrupt" 
 cy-creditors nor those with whom he deals to priority over the 
 claims of the beneficiary ... ... ... 505-8, -28wi-306 
 
 Fine and Non-claim ... ... ... ... ... 352n:(n.) 
 
 Fine and Recovery were used to extinguish Powers ... ... 350o,w 
 
 Fire 
 Insurance does not pass to purchaser ... ... ... 84ei 
 
 Rent is not apportioned on destruction by ... ... ... 150 ft 
 
 Fixtures 
 
 Generally ... ... ... ... ... ... 5 
 
 Are within the Bills of Sale Acts : when, ... ... ... 5121 
 
 Following op trust funds ... ... ... ,.. 331<?-2i 
 
 Forbearance: see " Creditor : Forbearance by." 
 
 Foreclosure may be reopened : when, ... ... ... 31G/-A 
 
 Forfeiture : 
 Agreement to submit to, on non-performance, implies an agreement 
 to perform... ... ... ••• ... ... 317cZ 
 
 By Corporation, &c. ... ... ... ... ... 278i-9g 
 
 For breach of condition : see " Condition." 
 
 Formal Contract : Stipulation for, is evidence of lack of definitive- 
 ness ... ... ••• ••• ■•• ... 96«-c 
 
 Formalities necessary for 
 Ascertaining title by passing the Legal estate ... ... 75a-g, 433-5 
 
 [For details see the Table of Contents, ch. L.] 
 Ensuring deliberation... ... ... ... ... 122-7 
 
 [For details see Table of Contents, ch. xiv.] 
 
 Evidencing Contract ... ... ... ... ... 178-96 
 
 [For details see Table of Contents, ch. xxi., XXII.]. 
 
 Fraud 
 
 By means of misrepresentation : see "Fraudulent Representation." 
 
 Landed estates court conveyance : whether set aside for, ... Ap. vi. 
 
 Limitations (statute of) begins to run agt. victim of, when ... 27a 
 
 Of 
 Agent ... ... . ... ... 2SGh,n,-c,-9o- c M,-3i,j,458c 
 
 Co-disponor, vitiates disposition as much as fraud of disponee ... 505c 
 
 Disponor, affects priorities ... ... ... ... 537-000 
 
 [For details see Table of Contents, chh. lx.-lxiii. and numerous 
 heads in this Index.] 
 Infant ... ... ... ... ... ... 119/;, 289./ 
 
 Married Woman ... _ ... ... ... l'37j-8j,k,287l 
 
 Wife (intended) on marital right ... ... ... 5016-n 
 
 Prodigal, on his parent ... ... ... ... 209-10 
 
 On 
 Bankruptcy-creditors [see " Bky.-crs."] ... ... 564-600, csp. 582c-56 
 
 Creditors in general [see " Crs."] ... 539-Ola, csp. 534-42, -48c/-526 
 
 Marital right ... ... ... ... ... 5616-ra 
 
 Parent, (by prodigal) ... ... ... ... 209-10 
 
 Power, as affecting purchaser ... ... ... ... 447r/ 
 
 Purchasers, Mortagees, &c. ... ... ... ... 001-9 
 
 Solicitor's lien ... ... ... ... ... 561o-g
 
 INDEX. lxxxiii. 
 
 Winding-up-creditors : see " Wdg.-up.-crs." 
 Setting aside a dealing on the ground of, ... 285-90, wp. 2S9A-91»!,376 n.(l.) 
 
 Frauds: Statute of, ... ... ... ... ... 178-90 
 
 [For details see Table of Contents, ch. xxi. and xxil.l 
 
 Fraudulent 
 Contract, may be set aside in the same action in which damages are 
 obtained ... ... ... ... ... ... l\\h 
 
 Conveyance, is void agt. 
 Bankruptcy-creditors [see " Bky.-crSt"] ... ... 564-600, esp. 582c-56 
 
 Creditors in general [see " Crs."] ... 539-61a, csp. 534-42, -48<7-526 
 
 Purchasers, Mortagees, &c. ... ... ... ... 601-9 
 
 Devise ... ... ... ... ... ... 168i-9g 
 
 Gift, delivery, or transfer, is an act of bankruptcy ... ... 568A 
 
 Inducement to make a contract, makes it unnecessary that acts of 
 part performance should be evidentiary ... ... ... 188i 
 
 Preference, is void agt. 
 
 Bankruptcy-creditors .. ... ... ... 590Wfa 
 
 Notwithstanding the protection clauses... ... ... 574/i 
 
 Creditors in general .. . ... ... ... ... 547a 
 
 Winding-up-creditors ... ... ... •■• 59Q/-7a 
 
 Promise, by performance of which a third personjwould be benefited 165 
 
 Representation, [and, as to mistaken representations, see 309?.] 
 • Binds the 
 
 Legal estate so as to prevent it passing, perhaps, ... ... 29 n.'wi) : 
 
 Person, but not (after alienation) the property ... 80(7,397/1/2, Ap. i. : 
 By 
 Agent ... ... ... ... ... ... 179i : 
 
 Company to Shareholder ... ... ... ••• 28771 
 
 Covenantor to purchaser, that the latter shall have the benefit 
 of the covenant ... ... ... ••• ••• 161(7. 
 
 Father of a bride, that he intends to make a settle- 
 ment ... ... ... ... 187«, and cases cited in 81-2 
 
 Incumbrancer, that property is unincumbered ... ... 80a 
 
 Principal, that his agent's report is correct? ... ... 286/> 
 
 Solicitor for Mortagor, Vendor, &c, that his client is entitled 80ul 
 
 Vendor that he is owner ... ... ... ••• 80(71,(72 
 
 Entitles the representee to 
 
 Consideration for which he would have bargained if he had 
 known the truth ... ... ... ... ■•■ 287 »i 
 
 Damages or performance ... ... ... m 99 i, -100, 285a -7y 
 
 Exonerates the representee from a contract induced by it ... 288 
 
 Explained ... ... ... ... 78-9,997, 286?-r, -9c 
 
 Of 
 Fact ... ... ... ... ... ... 796-81a 
 
 Intention ... ... ... ... ...81-2r,95/<«.. 
 
 Entitles to restitution, if intention did not exist... _ ... 290/ 
 
 Exonerates the representee from a contract induced by it ... 289c 
 
 Purchaser with notice is affected by, ... ... •■• 417wt 
 
 Law ... ... ... ... ... ... 287j-7 
 
 Priorities as affected by, ... ... ... 397/1-/3, 417m, -95a-/ 
 
 Writing is not necessary to, ... ... ... ... 179i 
 
 Freedom op Judgment is necessary to a dealing ... ... 128-41 
 
 [For details see Table of Contents, ch. xv.] 
 
 Fresh Advance protects a cessio honorum, &c, agt. Bankruptcy- 
 creditors ... ... ... ... ... ••■ 576(/-7« 
 
 Friendly Society 
 
 Is not a charity ... ... ... ... ••• 102a 
 
 Is restricted in dealing with its property ... ... ... ^.%- 
 
 Married Women's shares in, are separate property ... ... 60/
 
 lxxxiv. INDEX. 
 
 Fund : see " Money fund." 
 
 Further charge is postponed to an Interest of which the chargeant 
 
 has notice ... ... ... ... ... ... 417-8c 
 
 General charge is postponed to specific incumbrance ... ... 34GA 
 
 Gift : 
 
 Acceptance of, 
 
 Is necessary, perhaps, ... ... ... ... 108n.(i.) 
 
 On trust, subjects the donee to the liabilities of trusteeship ... 182d 
 
 Containing unusual clauses, is voidable : when, ... ... 1286 
 
 To a 
 Fiduciary, given by 
 
 Beneficiary, is void ... ... ... ... 194d-y 
 
 Stranger, accrues to the beneficiary ... ... ... 195d,o 
 
 Infant, is not necessarily revocable ... ... ... llity 
 
 Glebe-lands in Ireland... ... ... ... ... 3716 
 
 Good faith towards creditors ... ... ... ... 5iie-j 
 
 Goods [see " Chattels."] 
 Supplied to enable the debtor to carry on business, protect, agt. 
 bankruptcy-creditors, a dealing made in consideration of such 
 
 supply ... ... ... ... ... ... 576J-1 
 
 Grand Juries in Ireland are authorized to deal with Court-houses 
 
 and Jails ... ... ... ... ... ... 365A 
 
 Grant, Lost: ... ... ... 12 [1. 14-7],15>' : 
 
 Gratuitous, see " Consideration." 
 
 Greenwich Hospital Is 
 
 Authorized to accept grants ... ... ... ... 368/; 
 
 Restricted in making dispositions ... ... ... 309 h. 
 
 Guardian is or is not entitled to accept gifts from ward... ... 132<",-3a-/ 
 
 Half-blood may inherit 
 
 Chattels ... ... ... ... ... ... 356 
 
 Tenements... ... ... ... ... ... 47/ 
 
 Harbour- Authorities are authorized to 
 
 Accept grants ... ... ... ... ... 368»i 
 
 Let lands in Ireland for fishery purposes ... ... ... 365e 
 
 Harsh Bargain : see " Unconscionable bargain." 
 
 Heir: [see "Descent," ''Fee-conditiona 1 ," "Unconscionable bar- 
 gain."] 
 Construed as meaning 
 
 Heirs ... ... ... ... ... ... 234n.(«) 
 
 Stock of Descent ... ... ... ... ... 2376-9re 
 
 Defined ... ... ... ... ... ... 45 
 
 In tail, is entitled to priority over a conveyance made in fraud of 
 
 him ... ... ... ... ... ... 539* 
 
 Is 
 
 Bound by his ancestor's contract .. ... ... 168/t-96
 
 i\i)i;.\. Ixxxv. 
 
 Entitled to sue on his ancestor's contracts for 
 Damages ... ... ... ••• ••• 15Sb-e 
 
 Specific performance ... ... ■•• ••• *&vf~J 
 
 " Hums " is 
 Construed in 
 
 Its strict sense ... ... ... ... ••• 238^-9fl 
 
 Other senses ... ... ... ... ... 239-40 
 
 Denoted by some other word ... ... ... ••• 284n.(a) 
 
 Necessary to limit a fee-simple ... ... ... 233,-7</-/,-4(/l 
 
 Of the 
 
 Body." Limitation to, ... ... ... ••• 48-9 
 
 Disponor himself : Limitation to, ... ... ... 240</,/i 
 
 Heir " is construed how, as to the rule in Shelley's case ... 2'370-Si 
 
 He who seeks EQUITY must do equity ... ... ... 337 [t. 7-8] 
 
 Honorary Engagement ... ... ... ... 96// 
 
 Hospital 
 For Poor may be founded ... ... ... ... 277'' 
 
 Master of, is authorized to make leases ... ... ... 365c< 
 
 HorsE Of' Correction for Poor may be founded ... ... 277c 
 
 Husband: [see " Convict's wife," "Dower," "Married Woman," 
 "Widow," "Widower."] 
 Covenant 
 By, to settle on his wife's relations cannot be enforced by them_ lG3e : 
 
 With, to Indemnify him agt. her debts, supports agt, his credi- 
 tors, a dealing made in consideration of it ... ... 553(/,-60i 
 
 Estate of, is liable after his death to dower : see "Dower." 
 Is 
 Competent to 
 
 Declare himself Trustee for his wife ... ... ... 124c 
 
 Deal with the estate of self and wife with her concurrence only 2G4//i, 
 
 Entitled or not [and see "Widower"] to 
 
 Accept a gift from his wife ... ... ... ... 132;/, -3«-/ 
 
 Priority, in respect of interests coming to him by the Marriage, 
 over dealings which the wife may have made in fraud of him 5616-Ji,605/t 
 Sell to his wife property which he holds on trust for sale : see 191 n.(/) 
 Wife's 
 
 Separate property ... ... ... ... 59t'-;/J 
 
 Other property, being a 
 Chattel 
 Corporeal ... ... ... ... ... 55a, & 
 
 Incorporeal... ... ... ... ...55d-6,-7-9d 
 
 Tenement held for a 
 
 Chattel Interest ... ... ... ... 56a-/,-7 
 
 Other Interest ... ... ... ... 54, -1d-f 
 
 Idiocy : see "Insanity." 
 
 Ignorance of 
 
 Fact, may invalidate a contract [and see " Mistake."] ... ... 2Slrt,& 
 
 Law, is 
 Assumed in construing ambiguous words ... ... 268a,&,-73d-/ 
 
 Not an excuse ... ... ... ... ...443«-/,-Gf-// 
 
 Illegitimate offspring: see "Bastard." 
 
 Imperfect contract or disposition ... ... ... 94-151 
 
 [For details see Table of Contents, cli. xi.-xvi.J 
 
 App.12.
 
 lxxxvi. INDEX. 
 
 Implication of estate-tail ... ... ... ... 243 
 
 Implied Terms in a contract ... ... ... ... 102/-36 
 
 Importunity invalidates a testamentary gift ... ... ... 133c 
 
 Improvement of 
 
 Land ... ... ... ... ... 369c-/,-70Z-n 
 
 Property derived under a dealing which was void agt. creditors or 
 
 purchasers validates it or confers a lien agt. them ... ... 545c 
 
 Imputative Notice of 
 
 Act of Bankruptcy ... ... ... ... ... 575d-r 
 
 Eival dealing, &c. ... ... ... ... ... 458-02 
 
 [Fur details see Table of Contents, ch. Lin,] 
 
 Inadequacy ok Consideration: [see "Consideration: Adequacy.''] 
 
 Inclosure Commissioners are authorized to deal with property ... d64j,k,m-o 
 
 Income belongs to purchaser 
 
 In what cases ... ... ... ... ... 8Qh,-7jln. 
 
 From what time ... ... ... ... ... 87-8 
 
 Inconsistent 
 
 Clause ... ... ... ... ... ... 440c 
 
 Contemporaneous dispositions ... ... ... ... 340 
 
 Words in a document ... ... ... ... ... 440r 
 
 Incorporation oe Documents into a Contract, &c. ... ... lSlh,i 
 
 Incorporeal Property 
 
 Defined ... _ ... ... ... ... ... 2 
 
 Is created and terminated : how, ... ... ... 12-22 
 
 [For details see Table of Contents, ch. n.] 
 
 Incumbent is authorized to sell Parsonage, &c, when, ... ... 3G4< 
 
 Incumbered Estates' Court: see " Landed Estates Court." 
 
 Incumbrance [and see " Incumbrancer.' - ] : . , 
 
 Defined, see ... ... ... ... ... Ap. xii. 
 
 Kept on Foot ... ... ... ... 32Sl4e,-iM,-tei-7e 
 
 Purchaser of 
 Advowson of a benefice which is subject to, is not entitled to 
 
 compensation ... ... ... ... ... 30G/) 
 
 Property subject to, must indemnify vendor agt. it ... ... 321j 
 
 Incumbrancer is 
 Entitled to 
 Priority over 
 
 Annuitant ... ... ... ... ... 4<>.V-(ir 
 
 Crown claiming a debt ... ... ... ... 465/-/; 
 
 Fraudulent or Gratuitous disponee ... ... ... 6046 
 
 Judgment-creditor ... ... ... ... 463«-5r/ 
 
 Take advantage of the release of a preceding incumbrance 323?-4e,-46(,*54/-7<' 
 
 Postponed to a Purchaser to whom lie made a misrepsentation ... 80rt 
 
 Indefeasible Titles ; see "Indisputable Titles"
 
 INDEX. 
 
 lxxxvii. 
 
 Indemnity against 
 Defect in Title : a Purchaser is not entitled to, 
 Incumbrance : a 
 Purchaser is 
 Bound to give : when, 
 Not always entitled to, 
 Vendor giving, is entitled to enforce sale : when 
 
 Indenture : who may take advantage of a limitation in, 
 
 Independent Covenants, &c. : see " Dependent, &c, covenants." 
 
 INDICIA of Ownership, committed by one person to another, some- 
 times preclude the former from asserting that the latter is not 
 authorized to deal as owner 
 In general ... 
 [For details see Table of Contents, ch. lvi.J 
 In particular : when the badge of ownership in rpiestion is 
 Acknowledgement that earlier inconsistent rights have ceased ... 
 Beneficial ownership : seeming continuance of, 
 ('(incurrence 
 
 Freedom from Incumbrances : seeming, ... 
 Legal estate 
 Possession 
 Registration 
 Symbolical authority 
 Title-deeds 
 
 Title-deeds: Mem. on, 
 Transfer in blank ... 
 Written authority ... 
 Exception, when the person to whom they were committed was 
 Trustee 
 
 321«-«* 
 
 32V 
 
 B21b-d 
 305e,-GA' 
 
 219-20 
 
 49G-508A 
 
 r>o:> 
 
 4! 17 
 505 
 498 
 497 
 498 
 503 
 
 r>04 
 
 500 
 504 
 505 
 504 
 
 505-8 
 
 381-2,467-94 
 Ap.i.-xxiv. 
 
 Industrial Societies are restricted in dealing with property ... 3690 
 
 Indisputable Titles ... 
 [For details see Table of Contents, ch. LV.] 
 Danger of, ... 
 
 Infant 
 Gift to, is not revocable 
 Is 
 Bound by his frauds 
 Competent or not to 
 Avoid a dealing ... 
 Confer authorities, if a Married woman 
 Confirm a dealing 
 Contract 
 
 Dispose of property 
 Rescind a contract 
 Settle property ... 
 Will away his property ... ... 
 
 Postponed to claims of which he has notice 
 
 Informal gratuitous disposition is operative : when, 
 
 Inheritable estate : who can sue for injuries to 
 
 ... 119.-289J 
 
 ... 118m-9« 
 
 138«1 
 
 ... 118m -9« 
 
 113n.((/):114« :U7e-t 
 
 118«-9/ : 424/// 
 
 117/. ,7 
 
 ...118c,d,-9b-f 
 
 118V 
 
 ... 419c?, -59.<: 
 
 77 b,c 
 
 152/-3 
 
 Inheritance : see "Descent."
 
 lxxxviii. INDEX. 
 
 Inquiries of what kiiuls ami when, are necessary on a purchase 
 
 Accompanied by the legal estate... ... ... ... 448</-0/ 
 
 Of a chose in action ... ... ... ... ... 3936,432'. 
 
 Insanity invalidates certain dealings ... ... ... llf>«-7</ 
 
 Insolvency op a debtor, tested with regard to the question whether 
 
 his dealings are fraudulent agt. creditors ... ... ... 540yi 
 
 Inspection of the Eecord of Title ... ... ... iSia,l 
 
 Insurance, effected 
 
 By Vendor agt. fire, does not pass to purchaser ... 84el, 196/1-/3 
 
 For Wife or Children, is 
 Her separate property ... ... ... ... 00/ 
 
 Not postponed to creditors ... ... ... ... 546m 
 
 Intelligibility is necessary to a contract, &c. ... ... 105, -6 
 
 Intention is necessary to a contract, &c. ... ... ... 946-5/ 
 
 Interest, payable 
 
 At Exhorbitant rate on a fresh advance, does not prevent the ad- 
 vance from supporting a dealing agt. Bankruptcy-crs. ... 577 n 
 
 By Prodigal when a dealing with his reversionary interest is set aside 210c' 
 
 On 
 Mortgage-money, may be agreed to be increased for unpunc- 
 tuality ... ... ... ... ,.. ... 316/J 
 
 Purchase-nii >ney, 
 
 Accrues to the vendor ... ... ... ... 86«-92«; 
 
 At what rate ... ... ... ... ... 92/ 
 
 Intermediate profits are recoverable ... ... ... 370'/, e 
 
 Intestacy : 
 Devolution on, ... ... ... ... ... 33-53 
 
 [For details see Table of Contents, ch. IV., v.] 
 Of Leaseholder, does not suspend the st. of limitations during 
 
 a vacancy of the administratorship ... ... .. 27<? 
 
 Invalidating Circumstances ... ... ... 94-151,178-223,245-91 
 
 Inventory is or is not within the Bills of Sale Act ... ... 514« 
 
 Irish 
 
 Church Commissioners ... ... ... ... 364« 
 
 Law is, as regards Indisputable Titles and the Registration of 
 Deeds, treated fully in this work and brought down to about Jan. 
 1881 ; but is, as regards other points, treated only cursorily ; and 
 is indexed under the heads applicable to each point. See esp. 
 " Landed Estates Court" "Registration of Deeds " 
 Land- 
 Act invalidates contracts derogating from it ... ... 200^1 
 
 Commissioners ... ... ... ... ... 364p: 
 
 Judges are authorized to deal with property ... ... 364/-6« 
 
 Tenants, and Limited owners ... ... ... ... 368j9,-9/r-jj 
 
 " Issue " [and see " Heirs "j 
 Construed [esp. with regard to the rule in Shelley's case) ... 2346,-96./ 
 
 Defined ... ... ... ... ... ... 255n.(u)
 
 INDEX. lxxxix, 
 
 JOINT- 
 
 Creditor, releasing the debt, bars his fellow... ... ... 22 
 
 Debtor, receiving release, exonerates his fellow ... ... 21b, c 
 
 Estate, devolves to survivor ... ... ... ... S3fr,43i'«. 
 
 Stock-shares of a Married Woman are separate property ... 60e 
 
 Tenancy : explained, ... ... ... ... ... 33a 
 
 Tenant, making a profit, is bound to share it .... ... 195/ 
 
 Jointure 
 
 Explained ... ... ... ... ... ... 65 
 
 Is secured, how ... ... ... ... ... 65 
 
 Takes priority over other clauses in the settlement ... ... 3tW«-A 
 
 Judgment 
 
 Creditor: see "Creditor: Judgment-cr." 
 
 In 
 
 Ejectment ... ... ... ... ... 746 
 
 Rtni ... ... .. ... ... ... 73<f-y 
 
 Judicial 
 
 Decision as to ownership ... ... ... ... TSdAt 
 
 Separation affects the 
 
 Devolution of chattels on death ... ... ... 34n.(i) 
 
 Husband's rights in his wife's property ... ... ... 70a-c 
 
 Judiciary. law : Imperfections of, ... ... 4 [/. 20-2], <W 
 
 Keeping on Foot Incumbrances ... ... ... 323?-4e,354i-7e 
 
 King : see " Crown " 
 
 Labourers' Dwellings ... ... ... ... 371»i-o 
 
 Laches : see "Delay" 
 
 Land-Debentures ... ... ... 483»i-4d and see 4.81c, «* 
 
 Landed-Estates-Court, and Incumbebed-Estates-Court (Ireland) 474/-8c 
 
 Apportionment of rents, and subordinate matters, ... ... 478c 
 
 Ascertainment of rights ... ... ... ... 4756,c 
 
 Authority to deal with' property ... ... ... ... 3Cti« 
 
 Boundaries... ... ... ... ... 47iw, Ap.iii 
 
 Construction of statute ... ... ... ... Ap.iii 
 
 Feesimple ... ... ... ... ... ... Ap.vi 
 
 Fraud as a ground for relief ... ... ... ... Ap.vi 
 
 "Incumbrance" defined ... ... ... ... Ap.xii 
 
 Injustice wrought by, ... ... ... ... 384c-c, Ap.i-xxiv 
 
 Leasehold ... ... ... ... ... ... Ap.vi-vii 
 
 Priority of dispositions by the, ... ... ... ... 475c-86 
 
 -Title is subject to Personal Equities ... ... Ap.xx-xxiv 
 
 Land-Judges in Ireland are authorized to deal with property ... 364a, -6a 
 
 Landlord [and see "Lease," "Partial owner "] 
 
 Accepting Surrender is subject to dealings with leasehold ... 3486 
 Being Covenantee in a lease, is entitled to relief against a 
 
 purchaser of the leasehold ... ... ... ... 451/ 
 
 Distraining, is entitled to priority over 
 
 Bankruptcy-creditors ... ... ... 579-80^,589/-°% 
 
 Execution-creditor ... ... ... ... ... 562a-c 
 
 Fraudulent disponees ... ... ... 539n.(liJ
 
 *c INDEX. 
 
 Winding-up-creditora ... ... ... 5G7f/,-80c,-9/t 
 
 Entering- for Forfeiture, is entitled to priority over persons deriv* 
 
 ing under the tenant ... ... ... ... ... 'MHa 
 
 Evicting a tenant in Ireland, is entitled, after registering, to 
 
 priority as above ... ... ... ... ... 414« 
 
 1 orfeiture of Lease makes the tenant's possession adverse ... 27/ 
 
 Land Clauses Act : Contract for sale under 
 
 Compellable ... ... ... ... ... 370c-/ 
 
 Notice to treat renders acceptance unnecessary ... .... 109c 
 
 Writing is unnecessary for, ... ... ... ... 179c 
 
 Land Transfer Act (1862) [and see " Declaration of Title."] 
 Priority of purchasers, &c, who derive under a holder registered as 
 
 Entitled ... ... ... ... ... ... 4SG«-c 
 
 Indefensibly entitled ... ... ... ... 4857<-» 
 
 Registration is made by whom, and how, ... ... ... 484y>f>c 
 
 Sale with indefeasible title may be applied for ... ... 486d-o 
 
 Land Transfer Act (1875) 
 
 Administrator ... ... ... ... ... 490k; Ah 
 
 Advowson ... ... ... ... ... ... 487y> 
 
 Bankruptcy, &c. ... ... ... ... 490o,in.'i),4916 J -3m 
 
 Beneficial Interests ... ... ... ... 488w,/*,-9n.(i) 
 
 Boundaries... ... ... ... ... ... 48;)/' 
 
 Cautions ... ... ... ... ... ... 402//-;/ 
 
 Certificates... ... ... ... ... ... 490f-j 
 
 Charge : 
 
 Generally ■ _ ... ... ... 489c-/, -906, e,-2j,-3c,Ad-f 
 
 Power of sale is implied in, ... ... ... ... 480 [/. 11] 
 
 Satisfaction of, ... ... ... ... ... 489/, r/ 
 
 Transfer of, ... ... ... ... ... 494/ 
 
 Committees of Lunatics' estates ... ... ... ... 491* 
 
 Conditions ... ... ... ... ... 4896, -91/'-/, -3/ 
 
 Costs ... ... ... ... ... ... 489/zi 
 
 Covenants implied ... ... ... ... « ... 490b-d 
 
 Curtesy ... ... ... ... » ... 490m,n,-lb,m 
 
 Dealings on the register ... ... ... ... 491c-;/ 
 
 Devolution on death ... ... ... ... 490A,»,-16,-3»i 
 
 Disabilities... ... ... ... ... " ... 489o,-91A,/' 
 
 Dower ..._ ... ... ... ... ... 491m 
 
 Easements ... ... ... ... ... ... 493a, 6 
 
 Equitable rights ... ... ... ... 489//!,/?, -9 n.(i.) 
 
 Executors ... ... ... ... ... ... 490A.-16 
 
 Extent of the property ... ... ... ... 489/' 
 
 Franchises ... ... ... ... ... ... 493^,6 
 
 Fraud ... ... ... ... ... ... 494« 
 
 Guardians of Infants ... ... ... ... ... 491 i 
 
 Husband ... ... ... ... ... 490k,m-la,b,m 
 
 Incorporeal hereditament ... ... ... ... 487/', q 
 
 Incumbrance: see"L.T.A. : Charge." 
 
 Inspection of Register... ... ... ... ... 490e 
 
 Joint Registration ... ... ... ... ... 488«,6 
 
 Land-certificate ... ... ... ... ... 490// 
 
 Lease : 
 
 Burthens attaching on, notwithstanding registration... ... 493;/-?* 
 
 Copies of, ... ... ... ... ... 490;/,/* 
 
 Expiration of, ... ... ... ... ... 489A 
 
 Protection of, agt. registered interests ... ... ... 492«,6 
 
 Registration of, ... ... ... ... ... 491??, -3ta 
 
 Transfer of, ... ... ... ... ... 490«7 
 
 I/imitations: statute of, .... ... ,.. ... 492"
 
 IBTDEX. xci 
 
 Local Registries ... ... ... ... ... 490« 
 
 Lunatics' Committees... ... ... ... ... 491i 
 
 Marriage ... ... ... ... . . ... 490/), -la, b 
 
 Married Woman ... ... ... ... 4'JQni-lb,h,»i 
 
 Mines ... ... ... ... ... 487p,-9a»-92r,-3& 
 
 Notices ... ... ... ... ... ... 493/ 
 
 Priorities ... ... ... ... ... 488c-%,-V2n-4f 
 
 Protection of unregistered interests ... ... ... 4'Jlj-'2;/ 
 
 Registration may be 
 
 Applied for : by whom, and in respect of what property ... 487j-8b 
 Made 
 In what 
 
 Manner ... ... .. ... ... 489r-i 
 
 Shares ... ... ... ... ... 4886 
 
 Under what circumstances ... ... ... ... 488c-? 
 
 With what title ... ... ... ... ... 487 k-t 
 
 Rectified.. ... ... ... ... ... 489/, -946 
 
 Rent ... ... ... ... ... ... 487p 
 
 Tithe rent charge ... ... ... ... ... 487^> 
 
 Title-deeds... ... ... ... ... ... 489p,q 
 
 Unregistered Interests ... ... ... ... 49U-2;/ 
 
 Lapse of a testamentary limitation to the use of a person who dies 
 
 before the testator ... ... ... ... ... 439:,-40'/ 
 
 Law 
 
 Is taken as known : see " Ignorance of Law." 
 
 Of what country regidates the priority of interests in chattels ... o-iOn.(y) 
 
 Reform as to 
 
 Descent of estates-tail ... ... ... ... 64-5 
 
 Life-interests ... ... ... ... 385 [/. 9-20], 558 i) 
 
 Registration ... ... ... 21Gw«/.-7,383£/-5tf/>,-84n.(i) 
 
 Title ... ... ... ... ... ... 383/-5/7/>. 
 
 Transfer of Stock ... ... ... ... ... 470</ 
 
 Learning may be promoted by means of a perpetuity ... ,.. 27bd,/i,n,o 
 
 Lease, and Leasehold [and see " Landlord "] : 
 Agreement for, 
 
 Entitles intended lessee to income from what time ... ... dOc 
 
 Implies commencement of term ... ... ... 103« 
 
 Time for performing, is essential : when,... ... ... 300;' 
 
 Alienation of, may be restrained by condition ... ... 249-50 
 
 Assignment of, is generally valid agt. purchasers, creditors, &c. ... 553c 
 
 By Corporation may be made : when ... ... ... 3G9A- 
 
 Condition in, is 
 
 Believable.: when ... _ _ ... ... ... 313/,-4a-c,-7a,316Al 
 
 Valid if Restraining alienation : ... ... ... 249-50 
 
 Covenant in, by 
 Lessee 
 
 Accrues to Assignee of reversion : when, ... 157c, 170 n. 'it.) 
 
 Binds assignee of leasehold : when, ... ... ...170<', n.(u.) 
 
 Breach of, exonerates the lessee from his covenants : when ... 298/(2,307// 
 
 Depends on lessor's covenants : when ... ... ... 297/', I 
 
 Lessor 
 
 Accrues to assignee of leasehold : when, ... ... VS7d 
 
 Binds assignee of reversion : when, ... ... ...170/, n.(n.) 
 
 Breach of, exonerates the lessee from his covenants : when 
 
 Depends on lessor's covenants : when, ... ... ... 297^,/ 
 
 Sublessee: breach of exonerates sub-lessor : when,... ... 298A 
 
 Sublessor: does not accrue to sublessee : when, ... 158i, n.(i.),-9/ 
 
 Deed is necessary for ; when, ... ... ... ... 424?«
 
 xcifc INDKX. 
 
 Destruction of subject of, exonerates from rent : when ... 149/-50« 
 Fine for renewal 
 
 Covenant to pay, depends on covenant to- renew ... ... 298/* 
 
 Lien for, is allowed... ... ... ... ... 328rrl 
 
 Fire destroying buildings on, does not exonerate from rent ... 84el,150a 
 Forfeiture of, is relieved agt : when, ... ... 313/,-4a-r,-6/il,-7« 
 
 Formalities necessary to, ... ... ... 180d,h,f,424>n 
 
 "In Possession," defined ... ... ... ... 350r/ 
 
 Option to holder of, to purchase reversion ... ... ... 307;/ 
 
 Priority of, 
 
 Generally : over fraudulent or gratuitous dealing ... ... 004 [/-3] 
 
 Under a Power : over a 
 
 Limitation in the settlement... ... ... 359rt-/,-60/>,-l;/-/ 
 
 Mortgage or Trust ... ... ... ... 354a -d 
 
 Renewal of : 
 
 Covenant for, ... ... ... ... ... 298/(2 
 
 Covenant to pay Fines for, depends one. to renew ... ... 298/< 
 
 Lien for Fines for, is allowed ... ... ... ... 328«1 
 
 Rent : 
 
 Covenant to pay, depends on c. for quiet enjoyment ... 297/*, i 
 
 Destruction of property extinguishes, when, ... ... 149/,-50re 
 
 Sale of, 
 
 Lease as freehold ... ... ... ... ... 305/; 
 
 Reversion as free from, ... ... ... ... 305(/, -6A 
 
 Underlease as lease ... ... ... ... 305/,^6/,flf 
 
 Trust to grant to a testator's relatives is void for perpetuity : 
 
 when, ... ... ... ... ... ... 257c 
 
 Under a Power 
 
 Authorizing a lease in possession ... ... ... 350^ 
 
 Conferred by 
 Disposition: see " Lease : Priority of." 
 
 Statute ... dQ3i,-4.a } d-f,m,-5a ) €,'»i,-Qa,e,-7a,,i,-8o,-9a,k,-71c-l 
 
 Writing is necessary for : when, ... ... ... 180a, b,f 
 
 Legal 
 
 Advantage (other than the 1. estate): whether it gains priority, ... 379e-81;/ 
 Covenant is transferred by the statute of uses : when, ... 441a,b 
 
 Estate : as regards 
 Best right to call lor it ... ... 388</,f,-97/,423tf,-30f/-l/i. 
 
 Bill of 
 
 Exchange : ... ... ... ... ... 348<> 
 
 Lading: ... ... ... ... ... 428/ 
 
 Breach of 
 Condition affects, how far ... ... ... 310/y,-10/-lr',-l n.(i.) 
 
 Trust in the acquisition of, does not disentitle the party acquir- 
 ing it to priority over a fraudulent or gratuitous dealing ... 003;/ 
 Chose in action : subsistute for, in case of, ... ... 378c-9/v 
 
 Defined ... ... ... ... ... ... 375«-06 
 
 Disposition of : see " Legal estate : Transfer of." 
 
 Fraud affecting the passing of, ... ... ... 291n.'m): 
 
 Lien of Legatee on, ... ... ... ... ... 330/1 
 
 Limitation of, is valid : when, see "Limitation of the Interest." 
 Priority by means of, is 
 Allowed to 
 
 Indorsee of bill of lading ... ... ... ... 4281 
 
 Purchaser, Mortagee, &c, 
 
 From one to whom the holder has entrusted it ... 497'',/ 
 
 [For details see Table of Contents, ch. xlix.] 
 Without notice 
 In general ... ... ... ... 375«-8(/,-88«-4/t 
 
 [For details see Table of Contents, ch. XLVi., xlviii.] 
 In particular, as regards a 
 Choee in action 388t-/,-936-(/, n. (i., n.),395/, -77-400//, 400/,427«-/
 
 INDEX. xciii. 
 
 Life-policy ... ... ... ... i!7<J 
 
 Ship ... ... ... ... ... 427A 
 
 Not allowed to 
 Appointee under a power exercised by him who made the 
 earlier disposition, and who, by that disposition also, 
 
 transferred a legal estate ... ... ... ... 352a-/J 
 
 Purchaser, Mortgagee, &c., with Notice ... 416a-226,esp.417» 
 
 Representee ... ... ... ... ... 31)7/1-/3 
 
 Register Acts affect : how, ... ... ... ... 400c 
 
 Representation fraudulently made prevent) the passing of: 
 
 perhaps, ... ... ... ... ... 291n.(m): 
 
 Transfer of, is or is not 
 Allowable in case of 
 
 Bill of Exchange, &c. ... ... ... ...348o,425/-g 
 
 Chose in action generally ... ... ... ... 425ce-7e 
 
 Effected by means of 
 
 Breach of condition ... ... ... ... 311n.(i) 
 
 Cancellation of Register ... ... ... ... 473a 
 
 Statute of Uses... ... ... ... ... 437tf-40r/ 
 
 Statutes in other instances ... ... ... 441c-o 
 
 Vesting order ... ... ... ... ..Ailr,s,-2j-q 
 
 Formally complete, if effected by 
 
 Dealing, or act of the party, ... 423a-32/, and see 393i-o,p: 
 
 [For details see Table of Contents, ch. L.] 
 
 Vesting-order ... ... ... ... ... iilp,q 
 
 Implied in a Will : when, ... ... ... ... 394/ 
 
 Operative on the beneficial interest ... ... ... 97*, 115a, 6 
 
 Prevented by 
 
 Absence of intention to pass the beneficial interest ... 956 
 
 Fraud, &c, ... ... ... ... ... 291m 
 
 Mistake ... ... ... ... ... 2846 
 
 Valid ... ... ... ... ... ... 114*: 
 
 Worded adequately ... ... ... ••• 393c-4/ 
 
 Usefulness of .'.. ... ... ... 375a-66,-77-8<i 
 
 Legitimacy is regulated by what law ... ... ... 35/1 
 
 Letters : Contract by, considered as regards 
 
 Completeness ... ... ... ••• ••• \d2c 
 
 Mutuality ... ... ... ... ... ... 146-Sa 
 
 Lien : 
 
 Explained ... ... ... ... ••• ... 328 e"«. 
 
 For 
 
 Crown-debt ... ... ... ••• ••• 334£ 
 
 Expenditure ... ... ... •■• ••• 332-4£ 
 
 Judgment-debt ... ... ... ... ••• 334)ft-5/ 
 
 Succession-duty ... ... ... ••• •■• 335? 
 
 Other matters ... ... ... ••• ••• 335»i 
 
 Of 
 
 Banker ... ... ... ... ... ••• 339f 
 
 Bankruptcy-trustee... ... ... ••• ■•• 33 >?» 
 
 Beneficiary ... ... ... ...330cZ-»,ml,-le-2i,-46&l 
 
 Coowner... ... ... ... ••• ■■• 3326,-4;/ 
 
 Crown ... ... ... ... ... ... 334/, -V 
 
 Executor... ... ... ... ... ••• 333M,-(y 
 
 Fiduciary ... ... ... ... 330-1,-24 :4fJ 
 
 Lessor (for fine) ... ., ... ••■ ••• 328al 
 
 Life-tenant ... ... ... ••■ ••• 333c-r/,-4/i 
 
 Manager... ... ... ... ••• ■•• 330p 
 
 Mortgagee ... ... ... ... 331<Z,-3A,ftl,-4v36-9c 
 
 Partner ... ... ... ... ... ••• 333c 
 
 App.13.
 
 xciv, INDEX. 
 
 Purchaser ... ... ... ... ... 329-30<J 
 
 .Solicitor ... ... ... ... ... ... 335-6,/ 
 
 Tenant-in-common ... ... ... ... ... 3336-4^ 
 
 Trustee ... ... ... ... ... ... 330-1,-4/-.; 
 
 Usurer, on reversionary interest reclaimed from him ... 2106, c 
 
 Vendor ... ... ... ... ... ... 328a-9jfc 
 
 Wife ... ... ... ... ... ... 330e 
 
 Life* 
 Interest, 
 During- the life of 
 
 Another than the holder : 
 
 Curtesy and Dower do not affect ... ... ... 43ftn.,-4c,d 
 
 Devolves on death of the holder : how, ... 326,213/-4«,n.(i.) 
 
 Entail of, ... ... ... ... ... 536 
 
 Occupancy of, ... ... ... ... 326,213/-4a,n.(i.) 
 
 Shif ting clause may affect, ... ... ... 213el 
 
 The holder himself : see " Life-tenant." 
 
 Policy of permitting, ... ... ... ... 55Sn.(i.) 
 
 Tenant is 
 Authorized to exercise a disposing power, even after he has parted 
 
 with his life interest ... ... ... ... 351/ 
 
 Bound or not to yield to the reversioner, &c, a corresponding 
 benefit in any 
 
 Incumbrance which he has bought in ... ... ... 197<y 
 
 Renewal (which he has obtained) of leases under which the 
 
 settled estate is held ... ... ... ... 196-7 
 
 Deemed a Fiduciary : how far, .,. ... ... 193/,-6{/-7e 
 
 Entitled to 
 
 Estovers ... ... ... ... ... 136 
 
 Lien ... ... ... ... ... ... 333/,</,-4/i 
 
 Seek to purchase the settled property ... ... ... 192t 
 
 Light : right to, whether it may be 
 
 Indefinite ... ... ... ... ... ... 96 
 
 Prescribed for ... ... ... ... ... 31i'J 
 
 Limitation of 
 Actions : 
 
 Acknowledgement to Mortgagee gives him a fresh title ... 26e,61 
 
 Advowson ... ... ... ... ... 25c 
 
 Agent receiving income after principal's bankruptcy ... 2661 
 
 Commences to run : when, ... ... ... ... 25/- 9*7 
 
 Crown is affected by, ... ... ... ... 24« 
 
 Easements ... ... ... ... ... 25c/, c 
 
 Ecclesiastical corporations or persons are affected by, ... 246,-Sc/l 
 
 Exceptions to, ... ... ... ... ... 28-96 
 
 Foreclosure-order gives a fresh title to a mortagee ... ... 26<«1 
 
 Fraud is an exception to, .. ... ... ••• 26a,al 
 
 Life tenant, &c, acquires for the reversioner : when, ... 20V/1 
 Payment gives a fresh title : whether it be 
 
 Rent to a Lessor ... ... ... ... ... 2Sal 
 
 Mortgage-money to a Mortgagee ... ... ••• 26c2-c3 
 
 Policy of, ... ... ... ... ... 24/m. 
 
 Principle on which it depends ... ... ... •■• 23-4 
 
 Profits in render ... ... ... ... ... 25a 
 
 Reform of the law respecting, ... ... ... ••• 24jin. 
 
 Reversionary interest is barred by : when ... ... 29 
 
 Right to tenements is taken away by, ... ... ... 2861 
 
 Spiritual and eleemosynary persons are affected by : how far,... 28t/l 
 Statutory prohibition of alienation does not prevent the acquisi- 
 tion of title by means of, ... ... ... ... 25cl
 
 INDEX. xcv. 
 
 Subjects to which it applies ... ... ... 25 mcd. and n. (a) 
 
 Time during which it runs ... ... ... 286-/, and n. {b,f) 
 
 Interest prescribing the 
 
 Commencement of an estate which is 
 Either present or future 
 In Indenture, to one who is not a party, is void : when ... 219/i-20c 
 Mistakenly inserted is not deemed to have been stipulated for M7g,h,o,p 
 Future 
 
 Of whatever kind, and 
 Taking effect on 
 Bankruptcy of the disponor, is void agt. his bky.-crs. ... 584<2-6a 
 
 Contingency, is construed as vested ... ... 227 -Sd 
 
 Death, means on death or effluxion of years, which ever 
 shall first happen : when ... ... ... 228c 
 
 Expiration of a feesimple, is void _ ... ... 220f-n 
 
 Marriage, means on death or marriage : when, ... 2286 
 
 Subsequent disposition for value, is void agt. such dis- 
 position ... ... ... ... ... G07« 
 
 Subsequent disposition of any kind, is void in some cases 
 see " Restraint on Alienation." 
 Being made to 
 
 Collateral Relatives in Marriage settlement, is not gener- 
 ally valid agt. creditors of or purchasers, &c, from the 
 settlor ... ... ... _ ... ... 556a-60A 
 
 Unborn or unascertained person, is void : when ... 21S<M></ 
 
 Varying the course of devolution, is void ... ... 221d-3a 
 
 Shifting the estate to another before the time which is, in 
 the clause by which the preceding interest is conferred, pre- 
 scribed for its expiration : 
 Affecting 
 Leaseholds for lives, is allowable... ... ... 215el 
 
 Legal estate directly, is void ... ... ... 21ig-6g 
 
 Certain to take effect, is not void for Perpetuity . . . 265e,/ 
 
 Defined ... ... ... ... 225 [1 7],-47»,o 
 
 Priority of, over other limitations in the settlement ... 358 [I. 4-6] 
 Puts an end to the preceding interest even though itself be 
 invalid : when ... ... ... ... 2G8e-fyy 
 
 Repugnant to the preceding interest: see "Limitation 
 varying the course," " Restraint on Alienation." 
 Rule in Shelley's case does not affect, ... ... 235c, -39-40 
 
 To take effect on 
 
 Contingency, is sometimes construed as conditional on 
 the contingency preceding the time of distribution ... 229c-306 
 Death 
 Before the fulfilment of a trust for distribution, is, 
 perhaps, void ... ... ... ... 223/t 
 
 Intestate, is void ... ... ... ... 221/-3a 
 
 Springing up at a future time is void : when, ... ... 212«-3i 
 
 Expiration of an estate 
 Prematurely, is, perhaps, void, if the estate be in fee ... 221a-c 
 
 Worded adequately : is, when, ... 223n.(/).233#».-56,-5/,/!,-Ge-40A 
 
 Liquidated Damages ... ... ... ... ... 312c-i 
 
 Liquidation : [see, for other points, " Bankruptcy-crs."] 
 Order and disposition clause : whether it applies to, ... 71 i-l; 5216-/7 
 
 -Trustee: property vests in, on appointment ... ... Hid 
 
 LIS PENDENS 
 
 Defined ... ... ... ... ... 342r/ 
 
 Doctrine explained ... ... ... ... 72-46,3426-46 
 
 Is 
 Equivalent to Notice ... ... ... ... 344c
 
 xcvi. INDEX. 
 
 Postponed to Purchaser, if it was 
 Brought to establish a fraudulent or gratuitous dealing ... 603n,o 
 
 Unregistered, unless purchaser had notice ... ... 74c,343t-4& 
 
 Preferred to a 
 Legal Estate < ... ... ... ... 342/<-,400Mc,-ln(i) 
 
 Mortgagee's right to consolidate .. ... ... c3%,-bQc,d 
 
 Literal Interpretation ... ... ... 286c, -3k, 3467. Ill 
 
 Literary Purposes : grant for, ... ... ... ... 368c 
 
 Livery of Seizin ... ... ... ... ... 78a 
 
 Loans by Public Bodies : Security for, is 
 DirectecUtQ he of what kind ... ... ... ... 3G8ei 
 
 Entitled to what priority ... ... ... ...368a, -71a, & 
 
 Local Usage cannot override the rules of law by which fair dealing 
 is secured ... ... ... ... ... ... V.)Gd 
 
 Locke King's Acts ... ... ... 42 (end of 1st note ), 153? 
 
 Lord of Manor is entitled to 
 What interests ... ... ... ... ... 10-1, 
 
 Enclose even agt. commonable rights which he has granted ... 3407(2 
 
 Lord St. Leonards' Act ... ... ... ... 20(M med 
 
 Loss pending contract of sale falls on purchaser : when, 84 in., and c,93a-c,e 
 
 Lost grant : Doctrine of, ... ... ... 12|7.4-7],15/ : 
 
 Love is an undue influence invalidating a gift : when, ... ... 132/, -3«7 
 
 Lunacy invalidates certain dealings ... ... ... 116«-7<£ 
 
 Lunatics' Committees, &c, are authorized to deal with their property: 
 how far ... ... ... ... ... ... 367/,w 
 
 Maintenance of 
 
 Actions is, unlawful ... ... ... ... ... £07 
 
 Person, being an 
 
 Infant : Clause of, is implied in a settlement ... ... 67a 
 
 Settlor : Clause for, is not necessarily fraudulent agt. creditors 551m 
 Other person : Fund for, 
 
 Alienation of, may be restrained ... ... ...24G/,r/,n,(i) 
 
 Bankruptcy-creditors are not entitled to, ... ... 7Vin 
 
 Creditors may not levy on, (perhaps),... ... ... 24Gn(i) 
 
 Management of Property : Power for, may be void for perpetuity 250/ 
 
 Manager 
 
 Is entitled to a lien ... _ ... ... ... ... 330/> 
 
 Knowledge of, is imputed to his principal ... ... ... 498s 
 
 Mansion: building of, on settled estate ... ... ... 3d9d 
 
 Map ',„ ... ... ... ... 105/, Ap. iii
 
 INDEX. 
 
 Marital eights : Fraud on, 
 
 5G26-» 
 
 Makbiage 
 
 -Articles 
 Are 
 Available or not by those who do not sign : 
 
 Issue ... ... ... ... ... 165a 
 
 Others ... ... ... ... ... 162a,6 
 
 Construed, how, as regards " heirs of the body "... ... 23!>-40 
 
 Must be Written ... ... ... ... ... 178/ 
 
 Consent to, .. . ... ... ••■ ... ... 314 
 
 Contract: see "Marriage Articles." 
 Is or is not an 
 Act in reliance on a representation, &c, so as to make it binding : 
 see most of the cases cited in respect to " Acts in reliance." 
 Consideration, sufficient to support a dealing agt. 
 Bankruptcy-creditors : when, ...517/,g',-66A,-866,o,"88^-r,976 r -8a,6 
 
 Creditors ... ... ... M5a,-51k,l,-2a,b,e,-4d,-6a-60h 
 
 Purchasers, see ... ... ... ... ... 6076 
 
 Part performance of a contract ... ... ISO, and sec 186-7 
 
 Limitation over on, sometimes operates also on death ... ... 2286 
 
 Knowledge of, is not notice that the property in question has been 
 settled ... ... ... ... ... ... 447e,/ 
 
 Power of disposition is not extinguished by, ... ... 353e 
 
 Restraint on, is lawful : how far ... ... ... 201 
 
 f-Vttlement : see " Settlement." 
 
 Transmission on, [and see "Husband," "Married woman.''] ... 54-01 
 
 Married Woman 
 Is or is not 
 Bound to 
 
 Make good her Representations ... ... ... 141e71 
 
 Pay damages or compensation for 
 
 Breach of Contracts ... ... ... ... 137/;,-S<'-/ 
 
 Election against an instrument ... ... ... 11162 
 
 Fraud ... ... ... ... 137j,-$i,/i,2$7l 
 
 Wrongs ... ... ... ... ... 137; 
 
 Competent to 
 
 Confirm authorities ... ... ... ... 13S«l,7l 
 
 Confirm or disaffirm contracts made during infancy ... 137/1 
 
 Contract ... ... ... ... ... 137 
 
 Elect ... ... ... ... ... 138/--A 
 
 Deal with property ... ... ... ... 137a-41d 
 
 Unless (the pr. being separate) she is prohibited ... 138i-9fi 
 
 Perpetuate executorship ... 138e,61,el,/l,246c,eZ,-5961, but see 365r : 
 Entitled [and see " Widow "] to 
 Lien against 
 
 Husband ... ... ... ... ... 330^ 
 
 Purchaser, &c, from husband ... ... ... 41(m 
 
 Priority (in respect of interests coming to her by the marriage) 
 
 over fraudulent or gratuitous dealings ... ... 005/i 
 
 Separate property ... ... ... ... 006-,/ 
 
 Settlement ... ... ... ... ... 00-1,00/1 
 
 Precluded from setting aside settlement ... ... 138/1 
 
 Presumed to be an accomplice in a fraudulent settlement : 
 
 when, ... ... ... ... ... 552a,6 
 
 Protected against husband's influence ... 123d, -36-7, -40^, A, -16, c 
 
 Past child - bearing, is deemed capable of having children : 
 
 whether, ... ... ... ... ... 2D7 n. (i) 
 
 's Property Act ... ... ... ... ... 006-./ 
 
 's Reversionary chose in action ... ... ... ... 140/ 
 
 MASSES) FOR the dead : Trust for, is void 
 
 275*
 
 xcviii. INDEX. 
 
 Master op School, &c. : Right to nominate, is alienable ... 279s 
 
 Maxims 
 
 Contemporanea expositio est melior expositio ... ... ... 106 
 
 He who seeks equity must do equity ... ... ... 337 
 
 Ignorantia legisnon excused ... ... ... ... 443« 
 
 Jus moritur nunquam... ... ... ... ... 28 
 
 Lite Pendente nil movctur ... ... ... 73-4,342 n.(i),-50 
 
 Potior est conditio possidentis : see ... ... ...200,379-80 
 
 Quilibet potest renuntiare juri pro se introducto ... ... VdQd 
 
 Qui prior est tempore potior est in juri [and see " Priority by Prece- 
 dence in Time."] ... ... ... ... 155, and see 345a 
 
 Qui sentit commodum scntire debet et onus ... ... 458«, and see 285-6 
 
 Res inter alios acta nihil operatw... ... ... ... 162./<?}. 
 
 Measure of Damages 
 
 Assessed on equitable grounds ... ... ... ... 104c 
 
 Recoverable for breach of a contract under which third persons 
 
 can benefit... ... ... ... ... ... 162d 
 
 Member of a Class : see " Class." 
 
 Mercantile Law Amendment Act : see List of Statutes cited, 19-20 Vic. c. 97 
 
 Merger of_ 
 Contract in 
 
 Another Contract ... ... ... ... ... 109r/l 
 
 Conveyance ... ... ... ... ... 283 i,h-d 
 
 Legal estate in a greater legal estate ... ... ... 223i 
 
 Meritorious consideration is sufficient to support a dealing agt. 
 
 Creditors ... ... ... ... 545g-7f, modified 5&5g-p, n. (i.) 
 
 Purchasers... ... ... ... ... ... 60G/t-A',-7e 
 
 Mesne rates are recoverable : when, ... ... ... 376 n. (i.) 
 
 Methodist Society in Ireland : Property of, vests in the trustees 
 
 on their appointment ... ... ... ... ... 441o 
 
 Middlesex: see "Registration." 
 
 Mine : Purchaser of, takes subject to the rights of the occupier ... 449 
 
 Misdescription : 
 
 Compensation for, after Conveyance ... ... ... 309c-/i; 
 
 Condition respecting, ... ... ... ... ... 305r/-Ge 
 
 Entry on property to ascertain, ... ... ... ... 309A: 
 
 Purchaser is exonerated by : when, ... ... 304/t-5V/,-6a-?i 
 
 Misleading contract is not enforcible ... ... ... 106 
 
 Misrepresentation : see " Fraud." 
 
 Mistake 
 
 Defined ... ... ... ... 2S0a-b 
 
 In matter of 
 
 Calculation ... ... ... ... ... 282k 
 
 Fact ... ... ... ... ... ... 280c-? 
 
 Frame of formal document ... ... ... 280i, m\d n. (i)
 
 INDEX. xcfcc. 
 
 Inference ... ... ... ... ... 30W : 
 
 Law ... ... ... ... ... 2S2a-[/,<jl,-5n. (</): 
 
 Title ... ... ... ... ... ... 281a 
 
 Is 
 Remediable 
 By 
 
 Compensation ... ... ... ... ... 28in,f 
 
 Disregard of mistaken clause ... ... .. 94b-g,-5a 
 
 Non-implication of intention ... ... ... 284c 
 
 Rectification ... ... ... ... ... 956,280a 
 
 Rescission ... ... ... ... ... 280cy,/,-l 
 
 Unless on sale under Court ... ... ... *82A: 
 
 Restitution ... ... ... ... 28(W,-1/,377A 
 
 Not by 
 
 Opening biddings ... ... ... ... 2S2k 
 
 Legal estate resulting back to disponor ... ... 2846, 377A 
 
 Remodelling contract ... ... ... ... 284c?-/ 
 
 Not after (in some cases) 
 
 Death of the mistaken party ... ... ... 282l,m 
 
 Part performance of the invalid dealing ... ... 283«-4« 
 
 Not (generally) if Unilateral ... ... ... 281i-2<t 
 
 Limitation inserted by, is not presumed to have been stipulated 
 
 for ... ... ... ... ... ... 561« 
 
 Money- 
 
 Fund : 
 
 Husband is interested in wife's : how far,... ... ... 57 -9d 
 
 Legal estate in, is transferable, how, ... ... ... 425«-7e 
 
 Lender's Purchase or security is or is not 
 
 Postponed to Bankruptcy-creditors ... ... ... 5771 
 
 Set aside... ... ... ... ... 128/-32c, 208^-1$ 
 
 Payment is not part performance ... ... ... 105a 
 
 " More OR Less : " meaning of, ... ... ... ... 305n.(i) 
 
 Mortgage [and see "Mortgagee'] 
 
 Attornment-clause is valid agt. bankruptcy-creditors ... 58GV,-8W-9Gv/ 
 By certain functionaries and public bodies ... 36ic,»i,-ol,-Ga,k,-70,-Sa,>i 
 By means of Deposit : see " Deposit of Title-deeds " 
 
 Cairns (Ld.) Act : Powers conferred by. ... ... 367c : cl c2 
 
 Consolidation : see "Mortgage is extended " 
 
 Covenant in : who may sue on, ... ... ... ... lCOn.(c): 
 
 Cranworth's (Ld.) Act : Powers conferred by, their 
 
 Nature ... ... ... ... ... ... 357^ 
 
 Priority ... ... ... ... - ... 352/,-70/,* 
 
 -Debt is 
 
 Borne after Mortgagor's death : how, ... ... 42 [end of 1st note] 
 
 Transferable gratuitously : how, ... ... ... 126/ 
 
 Devolves like a chattel ... ... ... ... 5361 
 
 Equitable, see " Deposit of Title-deeds." 
 
 Expressed as a Sale ... ... ... ... ... 178d 
 
 Further charge may be postponed by notice ... ... 417-Sc; 
 
 Is 
 Extended to any 
 Beneficial Interest which the Mortgagor has in the mortgage- 
 money ... ... ... ... ... 331d 
 
 Increment of Value arising from release of a prior incumbrance 354/-7e 
 Mortgage which the Mortgagee holds on other property : and 
 this 
 Against 
 
 Bankruptcy-creditors ... ... ... ... 349 c 
 
 Mortgagor and his estate ... ... ... 330-44
 
 c. INDEX. 
 
 Purchasers, other mortgagees, &c. ... ... 316a,b,-df-h 
 
 Sureties ... ... ... ... ... 349 1 
 
 Not if either mortgage was made since 1881 ... ... 337el 
 
 Limitations : st. of, affects, how far ... ... ... 23 
 
 Of 
 
 Contract for sale : is postponed for incumbrances ... ... 402 n. (n) 
 
 Mortgaged estate : is irredeemable unless prior mortgage be dis- 
 closed ... ... ... ... ... 31 'b,c 
 
 Property subject to a covenant : should be framed : how ... 173c 
 Re-conveyance or release of : 
 
 Executors may make, ... ... ... ... 3G7« 
 
 Lets in subsequent incumbrances ... ... 346(',-54i-7e 
 
 Redemption of, ... ... ... ... ... 315/i-Gi 
 
 Satisfaction of, is to be Registered : when ... ... 214 fl 
 
 Mortgagee [and see " Mortgage," and, as to points common to him 
 with other fiduciaries •' Fiduciary."] 
 Distraining : is protected against bankruptcy-creditors : when, SQd,8Ql-Q0g 
 Is 
 Authorized to sell : when, ... ... ... 3G7e,g,h,k,e : el,c2 
 
 Bound to damages for breach of covenants affecting the property 171/,£/-3c 
 Entitled to 
 Lien : 
 Generally ... ... ... ... ... 33ii,-Gp 
 
 If in Possession... ... ... ... ... 333/i 
 
 Priority 
 
 In respect of further advances, over a disposition made be- 
 fore they were made but after the security for them was 
 prospectively given ... ... ... ... 345;;i : 
 
 Over a rival interest 
 Being a 
 
 Charge incurred for the benefit of the property, though 
 sanctioned by the Court, ... ... ... 346c 
 
 Fraudulent or Gratuitous dealing ... ... (jG2j 
 
 Judgment or Crown debt ... ... ... 463(,-5« 
 
 Lease under a power ... ... ... ... 353a, d 
 
 Owner's claim to exoneration from previous incumbrances 354(-7e 
 Revocable disposition ... ... ... ... G02y,-7»i-9 
 
 In a 
 Patent right _ ... ... ... ... 427c72 
 
 Recorded Land in 
 
 England ... ... ... ... ... 494«*-/ 
 
 Ireland ... ... ... ... ... 482a-4d 
 
 Ship ... ... ... ... ... 472o-4i 
 
 Stock or Share ... ... ... ... 4G7-70 
 
 Postponed to Bankruptcy-creditors, so far as his security is meant 
 to arise on bankruptcy ... ... ... ... 58Sl,c 
 
 Protected against bankruptcy-creditors : when, ... ... 571cAk 
 
 Paying the original mortgagor after a transfer has been, without 
 his knowledge, made, is entitled to credit agt. the transferee ... 497c/-8 
 
 Mortmain: see "Burial places," "Charitable purposes," "Convent," 
 "Corporation," "Learning," "Museum," "Perpetuity-rule: Dura- 
 ble purpose," "Public purpose," "Religious house," "R. purpose," 
 "Tombs." 
 
 Municipal corporations are authorized to deal with property ... 30>3c-h,-9i 
 
 Museum: Validity of trust for, ... ... ... ... 275/t,o 
 
 Mutuality of the 
 Remedy ... ... .,. ,.. ... ... 149t/,c
 
 INDEX. ci. 
 
 Right .. .. .. .. .. .. U6b-9e 
 
 Natural 
 
 Affection, forming the motive of a Settlement, 
 
 Is presomed to be its only consideration : when, . . . . .544/,; 
 
 Supports it agt. creditors, purchasers, &c. ; when, 545ff-6n,-55m-o,q-6k 
 
 Rights of landlord are claimable over adjacent lands : how far .. 14-6 
 
 Negligence by one interested in property postpones him to a rival 
 interest which he has by his negligence 
 Enabled a pretending owner to confer, [and see "Bill of Sale Acts," 
 " Factors' Acts," " Order and disposition "] . . . . 49,5-508 
 
 [For details see Table of Contents, ch. lvi.] 
 Failed to discover . . . . . . . . ' . . 448d-o~l/ 
 
 [For details see Table of Contents, ch. lii.] 
 
 Negotiable Instrument [and see " Bill of Exchange," " Deben- 
 ture."] .. .. .. .. .. .. 156c-e 
 
 New Trustees .. .. .. .. .. 367/1 
 
 Next of kin of a person are 
 
 Ascertained at his death .. .. .. 228^, modified-9a 
 
 Computed : how . . . . . . . . . . 35/" 
 
 Entitled (on his death) to his chattels . . . . . . 34c-5/ 
 
 Nomination : right of, is alienable . . . . . . 279s 
 
 Note (Promissory) see " Bill of Exchange." 
 
 Notice of an Interest in property, or of a circumstance giving rise 
 thereto, 
 Arises : how, .. .. .. 38/;, 443^,-7^,-54 n.(n),-74/-5A 
 
 [For details see Table of Contents ch. lii.] 
 Defined .. .. .. .. .. .. 416, -43y 
 
 Is or is not Imputed through 
 Agent .. .. .. .. .. 558a-62m,o7od-r 
 
 Coplaintiff 
 Counsel 
 Manager 
 Partner 
 Sheriff's officer 
 Solicitor 
 Solicitor's clerk 
 Kinds of , 
 
 Precludes the party affected by it 
 From gaining priority over 
 
 Any rival claimant, by relying on 
 
 Legal estate or its equivalent ; (the thing notified being the 
 rival claim), 4Q\d-s,-2a-d,-lQ>a-22b,l75, modified 172, and see 345c 
 
 [For details see Table of Contents, ch. xlix.] 
 But only (in some cases) if the notice be actual 419/-,/,-20#,c 
 
 Registration of a deed ; (the thing notified being the rival 
 claim), .. .. .. 407d-j,-l3/i-p,r-t,-6b-d 
 
 The following rival claimants : — 
 Bankruptcy creditors, by relying on the protection-clauses ; (the 
 thingnotified being the act of bankruptcy), 573^-<?,-74[/.24], and see572g ,h 
 Creditor claiming a right to extend his security to another debt, 
 by relying on a surety's right to a transfer of the securities ; 
 (the thing notified being the right of extension), 562<',-74[/.24], 
 
 Creditor of deceased : see " Notice .. precludes .. from Legatee." 
 Disponee of a money fund, by relying on a payment to the dis- 
 ponor ; (the thing notified being the disposition), . . Z4bi-k 
 
 App. 14. 
 
 0100 
 
 459m 
 
 575d 
 
 462<7 
 
 575r 
 
 462h,i,k-m,575l-n 
 
 575»,(7 
 
 416,-43-57,574»i-5*
 
 INDEX. 
 
 Legatee or Next-of-kin, by relying on an executor's power of 
 dealing with the assets ; (thething notified being an unwanan! - 
 able intention on the executor's part),. . .. L8y,42i,n.(i) 
 
 From preserving his priority agaiust a 
 
 Creditor, &c. ; (the fact notified being that the interest whose 
 priority he seeks to preserve was conferred in fraud of 
 creditors), .. .. .. .. b4-ih-j,n.(u.) 
 
 Purchaser, Mortgagee, &c. ; (the fact notified being that the 
 interest whose priority he seeks to preserve was conferred in 
 fraud of purchasers &c), 
 Not from gaining priority over a 
 
 Bill of Sale (or dealing with corporeal personal chattels) 
 Fraudulent dealing agt. Purchasers, &c, 
 To Trustee or holder of the fund 
 
 Confers priority on the disponee of a chose in action : see " Chose in 
 
 action : Priority" 
 Is or is not necessary to the validity of a gratuitous disposition of a 
 Money fund 
 
 6C6g-i 
 
 bibb 
 603i 
 
 I2iff,h 
 
 Notice to Treat for the compulsory purchase of lands is 
 Equivalent to an offer . . 
 Equivalent, after ascertainment of the price, to a contract 
 
 Notification of a Fact is notice of it, though disbelieved . . 
 
 NovATieN of a Contract 
 
 Occupancy 
 Commerces Title 
 Of an estate for another's life 
 
 Occupation-rent is allowed to purchaser : when, 
 
 Occupier's rights are binding on purchaser 
 
 " On " and " Or" : in a limitation to a woman and the heirs 
 or "of" her body begotten .. .. ». 
 
 "On the Death" used to introduce a remainder 
 
 Open spaces : grants for, 
 
 Option of purchase : see " Preemption : right of " 
 
 Oral evidence qualifying a document is admissible to 
 Determine its 
 Finality 
 
 Intention of passing the legal estate 
 Meaning : how far 
 Add a term : how far . . 
 
 9bd 
 101tf,-9c 
 
 Ubd 
 
 154a 
 
 23 
 
 326,213-4 
 
 91/-2c 
 448i-9/i 
 
 236 
 228c,d 
 368A1 
 
 178J 
 
 178c 
 lObb-Gmed 
 I0bb-6med 
 
 Order and Disposition Clause 
 In general 
 
 [For details, see Table of Contents, ch. lix.] 
 In particular : 
 
 Abroad : property being, 
 After-acquired property : see 
 Agent : 
 
 Bankrupt holding as, 
 Of bankrupt holding the goods, 
 Approval : goods lent on, 
 Attornment clause . . . . 
 
 71/,521-36 
 
 ,b26o,p,-35e 
 bilk 
 
 529/ 
 
 b2'3e-k 
 
 528<jr 
 
 525m
 
 INDEX. 
 
 Bailiff : Bankrupt holding as, 
 Banker holding bills, .. 
 Bank -post hills 
 1 leneflcial claim 
 Bills of Exchange 
 Bills of Sale Act 
 
 Broker : bankrupt holding as, . . 
 Business-debts 
 
 Charge on property [and seo " Order and Disposition : Lien," " O. 
 and D : Mortgage 
 Chattel-interests in tenements 
 Chose in action is 
 
 Within the Clause 
 
 Withdrawn from its operation by notice to the holder 
 
 629/ 
 
 b'36a-o 
 535.S 
 622d 
 b26n(i),-3la,b,-biv,-Ga-o 
 530 
 529c 
 b2Gn 
 
 522c 
 521n (n) 
 
 Company 
 
 Consent to the order and disposition : 
 
 Giving of, calls the clause into operation ; and may bo by the 
 True owner 
 Trustee of the owner . . . . . . 525a 
 
 "Withdrawal of, 
 Is 
 
 Inferred : when, in case of 
 
 522«,J,-6t-« 
 
 52ib,-6p,q,-8p,-Z'2m- 
 
 ic,-5ft 
 
 625l,r 
 
 b2ii,/c 
 
 Choses in action 
 Other chattels .. .. 
 
 Protected against bankruptcy-creditors 
 Prevents the operation of the clause 
 Contingent Interests 
 
 Coownership between bankrupt and true owner 
 Court : Fund in, 
 
 b24b,-3be-v 
 
 535b-d 
 
 572a,b 
 
 531i-2£,-5« 
 
 5222 
 
 525?,n. (n) 
 
 533c,o-4c 
 
 Custody kept by the bankrupt's agent, servant, &c., or by the 
 sheriff [and seo " O. and D : Possession "] .. .. 523e-m 
 
 527c- h 
 
 526/fc 
 
 526w 
 
 525«',n. (in) 
 
 525m 
 
 b22>o,-2,0l,-b u,v 
 
 [and 
 Custom 
 Debentures 
 Debts 
 
 Disability of the true owner 
 Distraint 
 Documents of Title . . 
 
 Equitable Interests . . . . . . . . . • 522«* 
 
 Execution-creditor's rights . . . . . . . . 523c 
 
 Executor of Partner . . . . . . . . 5295 
 
 Factor : Bankrupt holding as, . . . . . . . . 529^ 
 
 Fiduciary possession by bankrupt .. .. 528;m-30£,-6c-o 
 
 Firm : change in, . . . . . . . . 524a-c 
 
 Fixtures .. .. .. .. . . 526a-e,-9d 
 
 Fraud .. .. .. .. .. •• 528* 
 
 Furniture .. .. .. .. .. 527,9, e 
 
 Future Interests .. .. .. . . .. b22h-l 
 
 Good Faith . . . . . . . . . . 532c,c 
 
 Goods on approval . . . . . . . . • . 528# 
 
 Goods on Shipboard .. .. .. .. 526o,j»,-35c 
 
 Hire : goods on, . . . . . . . . &28b-(/ 
 
 Hire system . . . . . . . . . . 527c 
 
 Husband and wife being coowners of the goods, one being the bank- 
 rupt and the other the true owner, . . . . ... b2bp-7i 
 
 Implements . . . . • • • • • • 527A 
 
 Infancy of the true owner .. .. .. .. 525n.(m) 
 
 Insurance-money .. .. .. .. .. 531n.(in) 
 
 Interests of a partial character . . . . . . . . 522c-3a T 
 
 Knowledge of the 
 
 True owner .. . .. •• b2bd,h 
 
 Trustee or holder of a chose in action : see " 0. and D. : Consent 
 "Withdrawal of."
 
 civ. INDEX. 
 
 Landlord distraining . . . . . . . . 525»» 
 
 Lien [and see " O. and D. : Charge," " 0. and D. : Mort- 
 gages "] .. .. .. .. 522>--3c,-4n (1) 
 
 Liquidation .. .. .. ., 5216,n(i,iv) 
 
 Loan . . . . . . . . . . . . 528c-<7 
 
 Manager : bankrupt holding as, . . . . . • 529A,« 
 
 Manufacturer . . . . . . . . . . 527l-Sa 
 
 Mortgage [and see " O. and D. : Charge," " O.andD. : Lien"] o22m-g,-Qg 
 
 Mortgagee with Attornment . . . . . . . . b2bm 
 
 Negligence equivalent to notice . . . . . . . . 524_; 
 
 Notice to Trustee or holder of a chose in action 5245 ,-Qp ,q ,-Sp , -32m-4c ,-be-t 
 
 Notoriety of the true ownership . . .. .. 523^;,-6r-7«,-7n.(i) 
 
 Order and disposition : its nature .. .. .. 521n.(m) 
 
 Partnership 
 
 Between bankrupt and true owner .. .. 52bg,-29a-c,p,-S0e,f 
 
 -Debts .. .. .. .. .. .. 52ia-b 
 
 -Goods .. .. .. .. .. .. 525n.(i) 
 
 Pauper prisoner . . . . . . . . . . 532n. fhj 
 
 Policies .. .. .. .. .. .. 522;, -6/ 
 
 Possession 
 
 Right to, temporarily in bankrupt .. .. 522i,-3rt-rf,-30e,e? 
 
 Withdrawal of , .. .. .. .. .. bWc-2k 
 
 Protecting clauses of the bankruptcy acts .. .. .. 532i-3/t,? 
 
 Receiver taking possession . . . . . . . . 531^ 
 
 Registration under the Bills of Sale Act .. .. .. 530 
 
 Relation back of bankruptcy .. .. .. 532h,-Zi,j,-5q 
 
 Reputed ownership .. .. ,. .. 524A, -32^,-4 
 
 Restitution : bankrupt holding the goods subject to a right of, . . 528A-Z 
 
 Reversionary Interest .. .. .. 522i,-3(/, -35 
 
 Sale : 
 
 Bankrupt holding on trust for, . . . . . . 529s -to 
 
 Of goods by bankrupt . . . . . . . . 531/,^ 
 
 Or Return . . . . . . . . . . 523w 
 
 Servant having custody of the goods . . . . . . 523/ 
 
 Share in a Company . . . . . . . . . . 533/" 
 
 Sheriff taking possession . . . . . . . . 531e 
 
 Ship .. .. .. .. .. .. 526/ 
 
 Shipboard .. .. .. .. ..b26o,p,-35e 
 
 Shopman : bankrupt holding as, . . . . . . . . 529/ 
 
 Stop-order . . . . . . . . . . &33p 
 
 Stoppage in transitu . . . . . . . . . . 528? 
 
 Time when the order and disposition must occur . . . . b24d,g 
 
 Title-deeds .. .. .. .. 523o,-30J,-5m,i> 
 
 Trade-debts .. .. .. .. ..524«,5,-6» 
 
 Trader: whether bankrupt must be a, .. .. .. &2Ad-f,m 
 
 Trade-usage . . . . . . . . . . b21c-h 
 
 Trustee : 
 
 Bankrupt holding as, .. .. .. 528>w-305,-5.r-6o 
 
 Consent of true owner's, to the order and disposition &2ba-c,i,-3il-n 
 
 Usage . . . . . . . . . . . . h21c-h 
 
 Utensils .. .. .. .. .. .. 627A 
 
 Void or voidable disposition .. .. .. .. 628A-Z 
 
 Wife's furniture . . . . . . . . . . 527* 
 
 Winding-up .. .. .. .. . . 525?,n.(iv) 
 
 Ornamental Trees . . . . . . . . . . 301l,p 
 
 Outgoings fall on the Purchaser : from what time, . . . . 92d,e 
 
 Ownership defined .. .. .. .. .. 1 
 
 Parish is authorized to deal with property . . ., . . 368A,i
 
 INDEX. 
 
 Parks (in Ireland) 
 
 Parliamentary Titles : see " Indisputable Titles." 
 
 Parol Evidence : see " Oral evidence." 
 
 Parsonage : Grant for, 
 
 Partial 
 
 Owners, are authorized to deal with property 
 
 Payment, or render of consideration, precludes retraction of offer 
 
 Performance of contract : see " Part Performance." 
 
 Parties to an action by a married woman 
 Partition 
 
 370^ 
 
 368c? 
 
 3685-9/ 
 I486 
 
 56 
 
 276d,f,o,Z64j-l,-bp 
 
 Partner : 
 Is or is not 
 
 Competent without the concurrence of hit copartners to deal with 
 his share as against 
 
 Bankruptcy-creditors .. .. .. 5S4i-k,-8d-f 
 
 Parties .. .. .. .. .. 276t 
 
 Entitled to 
 
 Lien .. .. .. .. .. .. 333c,rf,-4$r 
 
 Share in any profit which his copartner may have made . . 195/ 
 
 Notice to, is imputed to copartners .. .. 459q,-62f,<? 
 
 Quasi-, is postponed to bankruptcy-creditors .. .. .. 600 
 
 Partnership : 
 Is 
 Consideration sufficient to support a dealing agt. creditors, pur- 
 chasers, &c. . . . . . . . . . . 554/ 
 
 Dissoluble : how, . . . . . . . . . . 276/- 7a 
 
 Perpetuity (or too long inalienability), is prevented in case of, . . 276 
 
 Purchaser of a share in, is subject to equities . . .. .. 348n.frt^ 
 
 Part Performance affects a contract by 
 Curing the defect of 
 Incompleteness 
 Indefinitiveness 
 Informality 
 
 Ground of the rule 
 Rule 
 
 In general 
 
 When Damages are sought 
 Nature of the part performance 
 In general 
 In particular 
 
 Executing instrument 
 Marriage 
 Payment . . 
 
 Preliminaries . . 
 Signing document 
 Non-acceptance 
 Unintelligibility 
 Precluding a party from rescinding on the ground of 
 Breach of Condition precedent 
 Fraud 
 
 Misrepresentation 
 Mistake . . 
 
 . . 1045-5« 
 
 .. 99c- 100/ 
 
 185a-9t 
 
 189^.16-28] 
 
 185 in., g,h 
 183^,/t 
 
 185o*,-8«-»,9»«-* 
 
 188-9 
 
 189 
 
 189 
 
 189 
 
 188-9 
 
 107<7-8c 
 
 1075 
 
 .. 307A-8/ 
 2S8e,-9ff,-91e-l 
 288e,-9(/,-9le-l 
 
 . . 283a-4« 
 
 Party to be charged must sign contract, &c. 
 
 183a-^
 
 cvi. INDEX. 
 
 Pastor may not accept a gift, unless testamentary .. .. 132A,-3 
 
 Pasturage, right of : 
 
 Is extinguishable : how, .. .. .. .. 17-21 
 
 Unlimited, 
 May 
 
 Exist . . . . . . . . . . . . 8a 
 
 Be assigned : when . . . . . . . . 8k,m 
 
 May not be Prescribed for . . . . . . . . 7-8,8/ 
 
 Patent-rights : 
 
 Legal estate in, is transferable : how, . . . . . . 426o 
 
 Priorities of Interests in, . . . . . . . , 470 
 
 Sale of, is not enforcible . . . . . . . . 151 
 
 Paying-off of Incumbrances .. .. .. 323/-4«,-54i-7e 
 
 Payment 
 
 Does not, as part performance, cure a defect in a contract. . . . 105,-89 
 Is protected against bankruptcy -creditors : when [and see " Bank- 
 ruptcy," " Fraudulent Preference "] .. .. b7lh,-6r/,h,-9&</ 
 
 Penalty is relieved against : when, .. .. 311«-4«,-5A,-7^ 
 
 Performance of contract precludes rescission, if 
 
 Complete on one side . . . . . . . . . . 185A 
 
 Partial : see " Part Performance." 
 
 Perpetuity-rule, and similar rules 
 
 [For details see Table of Contents, ch. xxix-xxxii.] 
 Affecting 
 
 Accruer clause . . . . . . . . . . 258d,e 
 
 Accumulation of income . . . . . . . . 256 
 
 Alternative Limitations . . . . . . . . 254<7-5« 
 
 Ancient Settlement . . . . . . . . . . 2o7a,b 
 
 Charitable purpose .. .. 257/,y,-8y-9a,£-74n.(n),-5tf-o,-7/ 
 
 Class: Limitation to, . . '.. .. .. 2o7d,e,h,-8b,-65i 
 
 Community .. .. .. 274(h), and see 277c-9q 
 
 Condition . . . . . . . . . . . . 263 
 
 Contingent Remainder . . . . . . . . 263 
 
 Convent . . . . . . . . . . . . 274y 
 
 Corporation [and see " Corporation "] .. 27 ±d-f and se$ 27 &c 9q 
 
 Covenant to renew lease . . . . . . . . 2Q>7e,f 
 
 Durable purpose .. .. .. .. .. 27±a-9q 
 
 Duration of disposing Power . . . . . . . . 269-71 
 
 Entail: Limitation behind, .. .. .. .. 2%Qe-\e 
 
 Escheat .. .. .. .. .. .. 261 
 
 Executory Clause .. .. .. .. 2Q>be,f,-8c-9g 
 
 Executory Trust .". . . . . . . . . 267/* 
 
 Incorporeal hereditament : newly created . . . . . . 2&hb-d 
 
 Lease 
 
 Generally . . . . . . . . . . 265a 
 
 Renewable . . . . . . . . . . 267e,f 
 
 Trust to make, . . . . . . . . . . 257c 
 
 Life-interest . . . . . . . . . . 266a-e 
 
 Limitation 
 
 Cutting short another limitation .. .. 2Q5eJ r ,-8c-9f/ 
 
 Following one which is invalid by the rule . . . . 266 
 
 For life . . ,. .. .. .. .. 266a-e 
 
 In the Alternative .. .. .. .. .. 254<?-5# 
 
 Lying behind an estate- tail .. .. .. .. 260<?-l^ 
 
 On failure of Issue . . .. .. .. .. 254n(n) 
 
 To a Class .. .. .. .. 2b7d,e,h,-8b,-65i 
 
 Under a Trust or special Power , . . . . • 255*- 6c
 
 INDEX. wii. 
 
 Management power . . . . . . . . . . 259/ 
 
 Married Woman restrained from anticipation . . . . 25961 
 
 Possibility of Reverter . . . . . • • • 261 
 
 Power of 
 
 Disposition .. .. .. 25oc-6c,-9c-/,-9A-60rf,259c: 
 
 [See also " Perpetuity-rule affecting Duration of Powers," 
 " P.-ruleaff. Limitation under a Trust."] 
 
 Management . . . . . . . . . . 259/ 
 
 Public purpose .. .. •• .. •• 275«-o 
 
 Religious purpose .. .. .. .. 21ig,-bc,-hp-%b 
 
 Remainder 
 
 Contingent . . . . . . . . . . 263 
 
 Vested .. .. .. .. .. .. 262 
 
 Renewable leasehold . . . . . . . . . . 267e,/ 
 
 Restraint on Anticipation .. .. .. .. 257-8,-96 
 
 Reversion . . . . . . . . . . . . 261 
 
 Reverter : Possibility of, . . . . . . . . 261 
 
 Shifting clause .. .. .. .. .. 265e,/ 
 
 Testamentary disposition . . • . . • . . 259y 
 Trust 
 
 In general .. .. .. .. 255o6c,-9c-/,c : 
 
 To grant leases to testator's relatives . . . . . . 257e 
 
 Vested Remainder . . . . . . . . • . 262 
 
 Whole of a clause of which part is unquestionably invalidated by 
 
 the rule .. .. .. .. .. 2hld,e,-%a,b 
 
 Will .. .. .. .. .. .. 259^ 
 
 Evaded or not by construction . . . . 242e,o, -54n. (u) , -68a, b 
 
 Period allowed by, .. .. .. .. 252a-k,-ol,m,-&f 
 
 Qualified by doctrine respecting the duration of Powers .. .. 269-71 
 
 Personal 
 
 Contracts .. .. .. .. .. .. 152a 
 
 Property : see " Chattels." 
 
 Equities .. .. .. .. Ap. i-xxiv esp. xi-xix,346/iil 
 
 Pew-right in gross .. .. .. .. .. 8e,f 
 
 Physician may not accept a gift, unless testamentary .. ... 132J-3 
 
 Policy of 
 
 Insurance is transferable 
 
 As to the Legal estate : in effect, . . . . . . 427^,/ 
 
 By Donatio mortis causa . . . . . . . . 126A 
 
 The Law as regards 
 
 Law-reform : see " Law-reform." 
 
 Validity of cer+ain dealings, see " Positive Law," 
 
 Portions for Children are 
 
 Entitled to what Priority .. .. .. .. 361-2 
 
 Secured : how, . . . . . . . . . . 65 
 
 Positive law : see Table of Contents, ch. xxni-xxvi, xxix-xxxiii. 
 
 Possession : 
 
 Meaning of Power to lease in, .. .. .. .. 350n.(i) 
 
 Of 
 
 Chattel 
 Commitment of, to one so that he appears as owner, gives a title 
 to his 
 
 Bankruptcy-creditors : see " Order and disposition." 
 
 Disponee . . . . . . . . . . 49S/-9 
 
 Protects against bankruptcy-creditors : see " Bill of Sale Acts ; 
 Possession."
 
 CTiii. INDEX. 
 
 Property in general 
 Delivered to the disponee 
 Entitles him to Priority : -when, .. .. . . 379-81, -8h 
 
 Is a sufficient formality to validate a 
 
 Gratuitous disposition .. .. .. .. 125n.(i) 
 
 Unwritten contract .. .. .. 18bc,d,-6c,d,6-7,8b,d 
 
 Precludes from Rescission by the 
 
 Disponee on certain grounds . . . . . . . . SOUS/ 
 
 Disponor on the ground of Informality l8M,d,-6c,d,-6-l,-8b,d 
 
 Retained by the disponor is evidence of Fraud agt. Creditors .. 550/-1A 
 
 Possibility 
 Of Reverter 
 Explained .. .. .. .. .. 48c-9o* 
 
 Is 
 Ban-able : how, .. .. .. .. .. 49c,#',372c 
 
 Not within the Perpetuity-rule . . . . . . 261/ 
 
 Upon a possibility . . . . . . . . . . 223 
 
 Postal 
 Annuities of a Married woman are separate estate . . . . 60c 
 
 Authorities are authorised to deal with property . . . . 365a 
 
 POTIOR EST CONDITIO POSSIDENTIS.. .. ..200,379-80 
 
 Poverty of a seller or mortgagor of a Reversionary Interest 
 invalidates a sale, &c. : when, . . . . . . . . 128/-32c 
 
 Power of 
 Appointment or Disposition 
 Conferred 
 By Law .. .. .. .. .. 363-74 
 
 On a Married "Woman, authorizing a Will, should be framed : how, 139-40 
 Defined .. .. .. .. .. .. 358 
 
 Duration of : see " Power of Appointment : Expires." 
 Exercise of : [and see " P. of A : Kinds of ; Special "] 
 By 
 Fiduciary : must be within a reasonable period . . . . 271£3 
 
 Infant .. .. .. .. \\8c,b,dl,n.(i) 
 
 Married "Woman 
 
 Subjects her property to her debt* . . . . . . 131 k 
 
 Validity of, .. .. .. .. 137a-c 
 
 Covenant by him who exercises it does not run with the estate 173a 
 
 Defective, is aided : when, . . . . . . . . 77c 
 
 Does not confirm a previous voidable disposition . . . . 354A 
 
 Formalities for, .. .. .. 77c,124[7,6-8],429m-30c 
 
 In favour of, — on one alternative a person who is not, — and on another 
 a person who is, — an object, operates for the latter in either case 228a 
 
 Expires : when, . . . . . . . . . . 269/i-7ty 
 
 Kinds of ; 
 
 General, defined .. .. .. .. .. 540n.(rv) 
 
 Special, as regards the 
 Persons in whose favour they may be exercised 
 Effect of exercise of, in 
 
 Favour of the children of the person designated . . 244 
 
 Fraud of the power . . . . . . . . 477^ 
 
 Is 
 
 Construed as Exclusive . . . . . . 367o 
 
 Valid or not as applied to 
 Chattel .. .. ., .. .. 2,11m 
 
 Copyhold .. .. .. .. .. 215c 
 
 Purpose to be effected by : see . . . . . . 363-70 
 
 Perpetuity rule affeots, how far . . .. .. 255,-9c,c ;,c,h-60d
 
 INDEX. 
 
 Priority of a limitation under, as compared with a limitation 
 Contained in a 
 
 Di ding which ho who conferred the power had previously 
 made .. .. .. .. 3i6d,-50e-4d,*4h 
 
 actual revocation would 
 
 Disposition by which the power was conferred 
 Disposition made under the authority of that by which the 
 power was conferred 
 Subsisting when the power was conferred by 
 Settled Estates Act 
 Any other statute .. .. .. 370 
 
 Attorney: Title derived under, is protected .. 
 Management, is void under the Perpetuity-rule : when, 
 Reentry: see "Condition." 
 Revocation : 
 Defined 
 
 Is necessary in a deed of Gift : when, 
 Postpones a disposition to subsequent 
 Creditors : when. 
 Purchasers, Mortgages, &c, .. 
 Subjects land to Crown debts as fully as an 
 do 
 
 FSJEPOSITUS, (or Stock of Descent) 
 
 Precatory trust 
 
 Preclusion 
 By 
 
 Acceptance of benefit : see" Acceptance of benefit." 
 Delay: see "Delay." 
 From 
 
 Enforcing contract 
 
 Rescinding- contract on the ground of 
 
 Breach of condition precedent 
 
 Essentiality 7 of Time 
 
 Fraudulent misrepresentation 
 
 Informality 
 
 Mistake 
 
 I' in onscionable bargain 
 Setting aside a dealing (to which he who is precluded has assented) 
 on the ground that it is void agt. 
 
 Bankruptcy-creditors : see 
 
 Creditors 
 
 Purchasers, Mortgages, &c., .. 
 
 Pre-emption : Right of, 
 
 By Lessee who breaks his covenants . . . . 
 
 From what time entitles the Purchaser to Income and the Vendor to 
 Interest 
 
 Preference: see " Fraudulent Preference," "Priorities." 
 
 Preliminaries to a contract are not part performance so as to render 
 writing unnecessary 
 
 Presbyterian Church is authorized to dispose of superfluous lands 
 
 Prescription 
 
 By 
 
 Judiciary law . • . . • • 
 
 Statute law 
 Principle of, . . . . . t . . 
 
 Rights claimable by, include, or not 
 
 358a 
 
 371c-l 
 
 ■lb,Z71m-o 
 
 369/3 
 
 259/ 
 
 358 
 
 128 
 
 607m-9h 
 
 605n. (n) 
 45 
 97 
 
 3036-A 
 
 .. 307A-8/ 
 
 289d-ff,-90e,ff-i,-le-l 
 
 185-00 
 
 283ff-4?. 
 
 131-2 
 
 580Z-»» 
 
 548a, 6 
 
 307^7 
 
 307-7 
 90a 
 
 189 
 366/ 
 
 29-30 
 
 31 
 
 12,23-4 
 
 App. 15.
 
 INDEX. 
 
 Pasturage without limit , . . . 
 
 Support . . . . . . . , 
 
 Presentation to Benefice [and see " Advowson] 
 
 Presumption of 
 Fraud agt. 
 
 B ankruptcy -creditors 
 
 Creditors 
 
 Purchasers, Mortgagees, &c, 
 Solvency of Debtor 
 Undue Influence 
 
 PRETLUM AFFECTLONIS is necescary to specific performance 
 
 Price must be determined on in order to validate a contract of sale . . 
 
 Principal : see " Agent," " Mortgage," " Surety." 
 
 PRIOR EST TEMPORE [see " Precedence in Time "] 
 
 8a 
 15,15 : 
 
 lOd 
 
 583 
 
 548^-526 
 
 606o-76 
 
 548n.(n) 
 
 133 
 
 150/-U 
 101c? 
 
 155, and see 345os 
 
 Priority 
 In general 
 Is regulated by the law of what country as to chattels 
 Of dealings 
 C ontemporan eou s 
 
 Annuity and Legacy under the same will 
 Deeds : Wills 
 Not contemporaneous : Derived under titles 
 Divergent from some particular point 
 Pule and general working of it 
 Exceptions 
 
 Act done after time appointed for distribution 
 Force and fraud 
 
 Lis pendens [and see " Lis pendens "] 
 Reaequisition by Trustee or Fraudulent party. . 
 Radically distinct : [see " Limitation of Actions," "Prescrip- 
 tion"]" 
 In particular 
 By reason of 
 Appointment or disposition : see " Power of appointment : 
 priority of limitations under," 
 Bankruptcy : see " Bankruptcy creditors are entitled to priority " 
 Certainty 
 In general 
 By means of 
 Best right to call for the legal estate : see " Legal estate." 
 Copy of court-roll 
 Indisputable title 
 
 [For details, see Table of Contents, ch. lv.] 
 Legal estate : [and see " Legal estate''] .. 388-404,416-62 
 
 [For details, see Table of Contents ch. xlvii, xlix-liii] 
 Notice to the trustee or holder in case of chose in action : see 
 
 " Chose in action," " Notice to trustee." 
 Possesion of 
 Deeds .. ... .. 379n.(i),-80n.(i), 379<?-81^ 
 
 Property .. .. .. .. , v 379n.(n) 
 
 Purchase in 
 
 Admiralty Court (as to ship) . . . . . . 381i 
 
 Landed-estates-court (as to Irish Land) 475fc>-86,;«oJ//fre/Ap.xx-xxiv 
 London (as to chattel) . . . . . . . . 3826 
 
 Market overt (as to chat lei) .. .. .. 382« 
 
 Registration .. .. .. 405-22,-33-47,-58-94,512-20 
 
 340n.(</) 
 
 340^ 
 3406, c 
 
 340/- 16 
 
 344e 
 
 341c 
 
 3426-4c 
 
 3Ud 
 
 340e 
 
 375,-86-7 
 
 385-8 
 467-94
 
 INDEX. cxi. 
 
 [For details, see " Annuity," " "Bills of Sale Art," 
 "Creditor: Judgment-creditor," "Creditor: Judg- 
 ment-mortgagee," "Crown: Debl owing to," " 
 
 debenture, " " Registration," " Ship," " Shares and 
 Stock," and ch. XLviii., xi.ix, lii-iv, i.viii.] 
 Statutory enactments .. .. .. .. 386<?-<7 
 
 Succession-duty Act .. .. .. .. 386cl 
 
 Composition : see " Composition-creditors are entitled or not 
 to priority." 
 
 Fraud of the disposer against 
 Administration- creditors : [and see " Administration."] 590k, -Gi-m 
 
 Bankruptcy-creditors: [see " Bankruptcy-creditors are entitled 
 to priority "] esp. .. .. .. .. 539 
 
 Composition-creditors ; [see " Composition-creditors."] 
 
 Creditors: [see " Creditor is entitled to priority."] 530</-01<7,-62/-3c 
 
 Crown claiming for forfeiture .. .. .. 539; 
 
 Ecclesiastic claiming- for dclapidations . . . . . . 562(7 
 
 Execution-creditors : [see " Creditor : Judgment creditor."] 
 esp... .. .. .. .. .. 539r,-63(7 
 
 Heir-in-tail . . . . . . . . . . 539/.; 
 
 Husband .. .. .. .. .. 5G\b-n 
 
 Landlord, &c, distraining .. .. .. 539n.(ii),-62«-c 
 
 Purchaser, Mortgagee, &c. .. .. .. 601-9 
 
 [For details, see Table of Contents, eh. lxiii.) 
 Sequestrator in Ireland . . . . . . . . 563c 
 
 Solicitor . . . . . . . . . . 5Q\o-q 
 
 Surety . . . . . . . . . . 562c 
 
 Winding-up-creditors . . . . . . . . 539y 
 
 Intention 
 
 In general .. •• .. .. .. 358-62 
 
 [For details, see Table of Contents, ch. xliii.] 
 In particular 
 
 Appointment under Power [and see " Power of appoint- 
 ment : priority of a limitation under "] .. 358(7, -59-62 
 Condition . . . . . . . . . . 358c 
 
 Sale, " subject " to a previous invalid dealing .. .. 358«?-<? 
 
 Shifting clause . . . . . . . . 358 
 
 Negligence : pursuant to 
 
 Judiciary-law . . . . . . . . . . 495-508 
 
 Statute-law : see " Bill of Sale Act," " Factors' Acts," 
 " Order and Disposition," and Table of Contents, ch. lvii- 
 
 LIX. 
 
 Precedence in Time 
 Of 
 
 Incumbrance, over a claim to be exonerated from a redeemed 
 
 Incumbrance . . . . . . . . . . 354/ -~b 
 
 Lien of a 
 
 Beneficiary . . . . . . . . . . 345J 
 
 Creditor .. .. .. .. .. 347"-/ 
 
 Trustee .. .. .. .. .. 345/,/- 
 
 Right (though inchoate) to 
 
 Consolidate mortgages .. .. .. 346(7, -9c-50d 
 
 Credit oneself with a payment .. .. 345/7- i, -8a-k,n 
 
 Enter in case condition should be broken . . . . ' 348« 
 
 Hold under an informal disposition made bv a tenant- 
 in-tail .. .. .. .; .. ;!.->l/-// 
 
 Set aside a dealing . . . . 290/, 345c,/, -8c. f. -9a-b 
 
 Set-ofi a demand . . . . . . 318/ 1; n 
 
 Over ■" ' 
 
 Appointment made under a Power . . . . 346(7, -bOc-UJ.h 
 
 Bankruptcy [and see " Bky.-crs."] .. .. ;n;, 
 
 Consent to an appointment made under a power . . MGd 
 Dealing
 
 INDEX. 
 
 no notice of 
 
 Beneficial to all parties 
 Disappointing to the eai'lier claimant 
 Disentailment 
 
 Judgment, judgment-mortgage, &c, 
 Legal estate acquired by Transmission 
 Sale, Mortgage, &c, to one having 
 preceding interest 
 Positive law : see " Priority by reason of Statutory Enactment ' 
 Power: see " Power : Priority." 
 
 Specificality, over a disposition of all property without specifying 
 what" ' .. .. .. • .. 
 
 Statutory enactment : see, for arrangement of details, Table of 
 Contents, ch. xliv, xlv, the points stated in which consist 
 c h \efii) of instances in which priority is conferred . . 
 For the purpose of 
 
 Artizans' and Labourer's dwellings 
 Barring Entails and Conditional fees 
 Glebe lands in Ireland 
 Improving land 
 Leasing settled estates 
 Selling settled estates 
 In favour of 
 Company 
 
 Crown : see " Crown." 
 Mortgagee or Incumbrancer . . . . 
 
 Partial owner 
 
 Public-Works-Loans Commissioners 
 
 Tenant -in -tail 
 
 Trustee 
 
 Winding-up-creditors: see " Winding-up-creditors." 
 
 Prison 
 
 Autborities are authorized to make disposilions 
 Commissioners : Estate of, vests in, on appointment 
 
 Privity op Contract : 
 
 [For details, see Table of Contents, ch. xvii-xix.] 
 
 Action on a Contract 
 
 May be brought 
 
 Against the 
 
 Assignee of the 
 
 Benefit of the contract 
 
 Property on which the contract is burthensome 
 Devisee of other property of the promisor 
 Executor of the promisor 
 Heir of the promisor 
 
 Third person who takes advantage of the contract 
 By the 
 
 Assignee of the 
 
 Contract, deriving through 
 Negotiation 
 Novation 
 
 Other means . . 
 
 Property to which the contract is beneficial 
 Executor of the promisee .. 
 Heir of the promisee 
 Must be brought by him from whom the consideration moves 
 
 Probate- Judge's estate vests on his appointment 
 
 Prodigal is relieved : when, from a 
 Sale or Mortgage 
 Settlement . . . . . . . . • . 
 
 346* 
 
 354* 
 
 . . 346r/-54/ 
 
 346/,^ 
 
 346e-y 
 
 the 
 
 M5c,d,-7a-i 
 
 346A 
 
 371«,o 
 372c-i 
 3716 
 370/-;* 
 371c-/ 
 371e-/,/ 
 
 371«* 
 
 370/- 16 
 
 370/ 
 
 371« 
 
 372-4 
 
 370/,/ 
 
 365/V 
 441/ 
 
 1697* 
 
 170ff-5y 
 168// -9(/ 
 \6Sa-(/ 
 168«-9^ 
 175A-7o 
 
 15Gb -e 
 
 1546-5 
 
 154c-6e 
 
 16'2-G 
 
 l.VJ/-3o 
 
 1536-/ 
 
 166 
 
 UliJ 
 
 20S/i-lOh 
 12&J
 
 INDEX. cxiii. 
 
 Profit 
 
 Gained by a Fiduciary belongs to bis beneficiary . . . . ldih-Se 
 
 Issuing out of Land, and lying 
 In Prender 
 Defined .. .. .. .. .. 2 
 
 May not be 
 Appurtenant to land, unless beneficial to it .. .. 8n. 
 
 Owned by the public, or by anindefinite body . . . . 29c 
 
 In Bender : defined .. .. .. .. .. 3 
 
 Is 
 Acquired : how, [and see Table of Contents, cb. n.].. .. 12-6 
 
 Against common right .. .. .. .. 17 
 
 Terminated: how, .. .. .. .. 17-21 
 
 Promise : see " Contract." 
 
 Promissory Note : see " Bill of Exchange." 
 
 Promoter of Company .. .. .. .. 194«,5 
 
 Property 
 
 Defined, and kinds of . . . . . . . . . . 1 
 
 In a Chattel 
 
 General or Special . . . . . . . . . . 377 
 
 Passes : when, . . . . . . , , . . 377 b,e 
 
 Protecting 
 
 Clauses in the Bankruptcy acts : as affecting creditors who rely on the 
 
 Bankruptcy Acts . . . . . . . . . . b7lc-4k 
 
 Bills of Sale Acts .. .. .. .. .. 515a 
 
 Order : as affecting a Wife's property . . . . . . 706 
 
 Protector of the Settlement 
 
 Consent of, is necessary in the barring of an entail . . . . 373o,£,-4£,y 
 
 Is or is not 
 
 Entitled to so exercise a power as to displace a disposition made 
 
 with his consent . . . . . . . . . . 353 b 
 
 A Fiduciary . . . . . . . . . . 196c 
 
 Provident Society is authorized to deal with property . . . . 369o 
 
 Public 
 
 Charity : see •' Charitable," " Charity Trustees." 
 
 House : Covenant may run with, . . . . . . . . 174j 
 
 Is not competent to take a profit in alieno solo. . .. .. 29e 
 
 Policy : see " Law-reform," " Policy of the Law," 
 
 Purposes, may not be promoted by any means tending to a perpetuity 275e-h 
 
 Works' Loans . . . . . . . . . . 371« 
 
 Puff is or is not deemed fraudulent . . .. .. 290j,k,-Sf,30ic,d,-9(/ 
 
 Purchase-money : 
 
 Deposit of part of, may be i-etained by vendor : when, .. .. 312n.(i) 
 
 Lying dead . . . . . . . . . . . . 86e-7b 
 
 Loan on the security of, is subject to incumbrances on the property. . 402n. (n) 
 
 Return of, is not required merely because the title is bad. . . . 96e 
 
 Purchaser [and see " Purchase money," " Vendor,"] 
 Acting in the 
 
 Course of Business . . . . . . . . 449^ 
 
 Name of another 
 Acquires the beneficial (or even the legal) estate in some cases . . 322d-/c,~7t
 
 xiv. INDEX. 
 
 Affects the person in whose name he acts with notice . . 462/ 
 
 Entitles him, perhaps, to sue .. .. .. .. 166-7 
 
 Postpones him (when) to 
 
 Creditors, &c, .. .. .. .. .. 541/,d(i) 
 
 Purchasers, Mortgagees, &c, .. .. .. 604, a,/i,i 
 
 Assenting to a dealing may not afterwards set it aside . . . , 548«, b 
 Being 
 
 Company . . . . . . . . . . . . 370a 
 
 Drainage-board . . . . . . . . . . 366y 
 
 Fiduciary, is not entitled to purchase from or sell to 
 
 Himself .. .. .. .. .. 192/-A 
 
 His Beneficiary . . . . . . . . . . 193«-c 
 
 Life-tenant, is not entitled to purchase from or sell to any person 
 
 interested .. .. .. .. .. 193/ 
 
 Prison authorities . . . . . . . . . . 365/ 
 
 Sanitary authorities . . . . . . . . 365« 
 
 Sewers commissioners .. .. .. .. 3656,-70/ 
 
 Town ... .. .. .. .. .. 365*, -70«* 
 
 War department . . . . . . . . . . 370* 
 
 From an 
 
 Agent -. .. .. .. .. .. 504i, 504-5 
 
 Bankrupt is protected : when, .. .. .. 571*-*,-2/-4/ 
 
 Devisee of estates charged with debts, who is also executor . .42n.(i)/«. 
 
 Executor .. ,. .. .. .. 38,42n. 
 
 Legatee or Next of kin . . . . . . . . 38,404«-^ 
 
 Trespasser or Squatter . . . . . . . . 403* 
 
 Trustee whom he supposes to be owner -iOld-i, n. (in, \),402a,b, n (i),506«-8A 
 Holding the legal estate or some similar advantage : see " Legal 
 estate," " Possession." 
 In 
 
 Name of anotber : see " Purchaser acting in the name." 
 
 Market, is entitled to priority over adverse claims respecting chattels 382« 
 
 Possession, is not liable for wilful default . . . . . . 93* 
 
 Inquiring from supposed incumbrancer : . . . . . . 80a 
 
 Is or is not 
 Bound to 
 
 Discharge Outgoings .. .. .. .. 92d,e 
 
 Pay to the vendor income which, he, after taking possession. 
 
 Has received . . . . . . . . . . 92/ 
 
 Might have received . . . . . . . . 93* 
 
 Entitled to 
 
 Abatement for Misdescription . . . . . . . . 319i-20£ 
 
 Accept a bad title . . . . . . . . . . 103*,320/» 
 
 Compensation for Delay . . . . . . . . 92^ 
 
 Damages for expenses, defect in title, &c, . . . . 103 
 
 Examine the premises before completion . . . . . . 309/j 
 
 Income : 
 
 In what case . . . . . . . . . . 86-7./?«. 
 
 From what time . . .. .. .. .. 87-8 
 
 Indemnity .. .. .. .. .. 32la-d 
 
 Insurance against Fire .. .. .. 84*, 196/1-/3 
 
 Interest .. .. .. .. .. 86-90 
 
 Lien .. .. .. .. .. 937m, 329-30*, -30*,*2 
 
 Part of the property, when a good title cannot be made to tbe 
 
 rest .. .. .. .. .. .. 318«-9A 
 
 With (sometimes) Abatement .. .. .. 'Sl9i-20l 
 
 Possession . . . . . . ■ . .. 85 
 
 Priority: see "Priority." 
 
 Proceed directly agt. one who claims adversely to the Vendor . . 155*-6« 
 
 Reimbursement fur expenses incurred .. .. .. lOiin. 
 
 Return of the purcbase money in consequence of tbe title proving 
 
 bad .. .. .. .. .. .. 150* 
 
 Exempt from
 
 INDEX. cxv. 
 
 Certain Interests (of ■which he had no notice) in chattels .. Z77i-lc 
 Claim founded on Informalities when he takes under certain 
 
 statutes .. .. .. .. .. 386c,/ 
 
 Covenant, without notice of which he purchases .. .. 172-3 
 
 Debts ni deceased cwner of purchased estate, it being freehold .. 16! c-g 
 
 Lien of Vendor's vendor . . . . . . . , bObd-J 
 
 Lis petidens, Execution, &c, .. .. .. .. 401 
 
 Mistakes in account ., .. .. ,. 386y 
 
 Succession-duty . . . . . . . . . , 386d 
 
 Precluded from 
 
 Invalidating a dealing to which he has assented . . . . 548c/, b 
 
 Rescinding a purchase of property into possession of which he 
 
 has entered .. .. .. .. .. 307A-8/ 
 
 Stock Of Descent .. . . . . . . . . 45 
 
 Subject [and see " Purchaser with notice," " P. without 
 • notice "] to 
 
 Appointment made under a power , . . . 36L7, and sec 346<tf 
 
 Lis pendens, and Execution .. .. .. 400£-lc 
 
 Preceding Interests 
 
 . Generally .. .. .. .. Moa-Gi, oOGa-8h 
 
 Notwithstanding- Notice .. .. .. .. 345c 
 
 When the preceding interest is a 
 
 Lien .. .. .. .. Moj-l,-6j,-71 
 
 Eight to 
 
 Credit for payment .. .. ,. ., 2>ihh,i 
 
 Enter for forfeiture .. .. .. .. 348a, b 
 
 Set aside a dealing , . , . . , , . 345c,/ 
 When the subject is a 
 
 Chose inaction ,, .. ., S45f/,-8c-9b 
 
 Legacy . . . . . . . . . , 346/-7J 
 
 Of a 
 
 Chose in action, is subject to beneficial interests and rights though 
 
 without notice of them ., ,. .. 34og-7i,-8c-9b 
 
 As, a Mortgage-debt . . . . . . . . 348A 
 
 Patent-right .. .. .. ,. .. 470 
 
 Share in a business, is entitled to a lien on the entirety . . 330c 
 
 Share or stock . . . . . . . . . . 467-70 
 
 Ship [and see " Ship."] .. .. .. ., 470-74* 
 
 Taking under 
 
 Bankruptcy in Ireland .. .. .. .. GOO/i-J 
 
 Court [and'see " Landed-Estates-Court," " Priority "] 3Gok,m,p,4l9f,G03q 
 Power of 
 
 Attorney, or other authorty, is protected : when, . . 472;--36o, 572/369/3 
 Disposition : see " Power of Appointment." 
 
 With Notice . . . . . . . . . . 416-22 
 
 Without Notice : See " Purchaser " passim. 
 
 Pure Personalty " defined .. .. .. .. 314n(i) 
 
 Purpose of a disposition 
 Being other than the benefit of the disponee : the disposition does not 
 
 operate on the beneficial interest .. .. .. .. 96-7 
 
 Is treated as a condition : when, . . . . . . . . 48-9 
 
 Qualified Fee : 
 
 Base fee created by barring an estate-tail : see . . . , 373-4 
 
 Terminable : whether allowable as to the legal estate directly . . 220-1 
 
 QUASI- entail .. .. .. .. .. 53 
 
 Queen Anne's Bounty: Sale or exchange by Govenors of, .. 364/;,£ 
 
 QUILIBET POTEST RENUJS'TIARE JURI FRO SE
 
 cxvi. INDEX. 
 
 INTRODUCTO .. .. .. .. .. 190o* 
 
 QUI PRIOR EST TEMPORE POTIOR EST IN JURE [and see 
 " Priority by precedence in Time "] . . . . . . 155,345a 
 
 Q UI SENTIT COMMOD UMSENTIRE DEBET ET ONUS 458«, and see 285-6 
 
 Rabbits pass with the land . . . . . . . . 6 
 
 Railway 
 
 Company is authorised to 
 
 Purchase . . . . . . . . . . . . 370c 
 
 Sell .. .. .. .. .. .. 366/ 
 
 Partial owners of lands may charge them with contribution towards 
 making of, . . . . . . . . . . 369/ 
 
 Readiness and Willingness is equivalent to performance : when, 296c 
 
 Real Property : see " Tenement." 
 
 Reasonable time tor performance of a contract . . . . 102/ 
 
 Receipt for 
 Mortgage -money revests the estate, if the 
 
 Mortgaged subject was a Ship .. .. .. .. 442^ 
 
 Mortgagee was a Friendly or Industrial Society . . . . 442J,/ 
 
 Purchase-money 
 Protects one to whom the purchaser sells against the vendor's hen 
 
 455/-,/, 505tf\ modi fed 505e./, el 
 Requires registration as a Bill of Sale; when, 513n.(n),-5n.(il) ; 
 
 Receiver : 
 
 Entry of, takes goods out of the Bills of Sale Acts. . . . . 512m 
 
 In Bankruptcy : see " Bankruptcy : Receiver in." 
 
 Recorded title ; see " Registration of Title to Land." 
 
 Redemption of Mortgages . . . . . . . . 315/«-6i 
 
 Reduction into Possession of wife's chose in action or fund .. 55,-8a-9c 
 
 Reform : see " Law-reform." 
 
 Registration 
 In general : 
 Is 
 Badge of ownership the entrustment of which to one who is not 
 owner may entitle one with whom he, as owner, deals, to priority 
 over the true owner 
 Insufficient to affect priority in some cases . .414/ -be, 
 
 Limitations : st. of, might be rendered unnecessary by, 
 Policy of admitting complicated limitations on the register 
 Proposals respecting, . . . . . , 
 
 Search of, must be made adequately, if at all 
 Of 
 Annuity 
 
 Bankruptcy-trustee's certificate 
 Bill of Sale . . . . . . . . bl9c,p-r 
 
 Charitable gift of land &c. in 
 England 
 Ireland . . . . . . 
 
 Crown-debt .. .. .. 
 
 503/-/ -4«* 
 
 and see 508a 
 
 24 
 
 216,406n.(n) 
 
 385 
 
 453c-w 
 
 41U,-5l-6d 
 
 414/581a 
 ,n.(i),'-20a,b 
 
 135,?,/ 
 
 415a 
 
 465-6e
 
 349m 
 
 40Gn. (n),-7()./; 
 
 &12ff-4m 
 
 INDEX. cxvii. 
 
 Declaration of Title to land &c. in 
 England: seo " Land Transfer Act." 
 
 Ireland . . .. . . . . .. . . ilim 
 
 Deeds affecting land &c. in 
 
 Ireland under the proposed new system .. .. .. 405n. (i) 
 
 Ireland, Middlesex, or Yorkshire, under the present system : as 
 regards 
 
 Bankruptcy .. .. .. .. i07q-t, and n. (11) 
 
 Charge on land 
 Consolidation of Mortgages . . 
 Contract 
 Copvhold 
 Declared Titlo 
 
 Deposit of deeds hy way of mortgage .. 406A,-12?,M,nr(ll.) 
 Disposition which ono has made under whom the present disponor 
 
 derives title .. .. .. .. .. 406d,f 
 
 Equitable Moirgtage .. .. .. i06h,-l2l,n,n. (h.) 
 
 Execution . . . . . . . . . . 406/ 
 
 Graft on renewal of lease &c. .. .. ,.405a,h,l0n 
 
 Judgment .. .. 408e-!,andn.(i),-10f-m,o,p,-3)i,-4b 
 
 Judgment-Mortgage in Ireland .. .. .. 414; 
 
 Landed-estates-court Title . . . . . . . . 412/,4/»,« 
 
 Land Transfer Act . . . . . . . . 412/* 
 
 Lease .. .. .. 407,-lW",n. (j),-2a-e 
 
 Legal estate .. .. .. 392«,r,4066,e,-9«-c,-13^ 
 
 its pendens . . . . . . . . . . 409« 
 
 Mode of registration . . . . . . . . 431/-2A 
 
 Mortgage by deposit of deeds .. .. i06h,-12ln 
 
 Notices * .. .. .. .. 407,-lo,-17,<.- l^- 
 Part performance of contract .. .. 406/', and see ±121,1)1 
 
 Priority 
 
 Of unregistrable disposition or transmission .. 406f/-j, a>id n(i) 
 Under other rules competing with the enactment respecting 
 
 registration . . . . . . . . . , 413/",<7 
 
 Recorded titles .. .. .. .. .. 412/ 
 
 Solicitor's lien . . . . . . . . ,, 413« 
 
 Surrender by operation of law .. .. .. 406j.-12m 
 
 Testamentary disposition .. .. 4O7b,m,ntf>,-10q,-lla-d,n.(i) 
 
 Transfer of Land Act .. .. .. ., 412/; 
 
 Transmission by law . . . . . . . . 412 
 
 Value .. .. .. .. .. 407-9 
 
 Wills] .. .. .. 4O7b,m,n,p-10g,-ll,a-d t n.(i) 
 
 Bedford level .. .. .. .. .. 4i5 c 
 
 Disentailment . . . . . . . . . , 468ff 
 
 Ejectment-decree in Ireland . . . . . . . . 4i4 t > 
 
 Incumbrance on the property of a Company . . . . 80 
 
 Improvement-of-Land- Acts, Orders under ., .. 414/-/. 
 
 Judgment . . . . . . . . . . 463-5rt r ,6e 
 
 Judgment-mortgage, and certificates of satisfaction thereof 414l,-42a,-6ip,q 
 
 Lis pendens .. .. .. .. 74c,343»-4« 
 
 Order for Partition, Exchange, and Allotment, in Ireland . . 414n 
 
 Rent charge .. .. .. .. ,.414A,-66-6 
 
 Satisfaction . . . . . . . . , . 414/: / 
 
 Title to 
 
 Land in .. .. .. .. 385-6,475-94 
 
 England see " Land Transfer Act." 
 Ireland, as regards 
 
 Caveats .. .. .. .. .. 480/-, I 
 
 Certificates of title and charge . . . . . . 481e-« 
 
 Closing of Record . . . . . . . . 478 
 
 Debentures . . . . . . . . . . 483m-4d 
 
 Disposition made 
 
 Independently of the record . . . . . . 480#-c 
 
 App. 16.
 
 sxviii. INDEX. 
 
 On the record . . . . . . . . 480o*- h 
 
 Inspection of the record .. .. .. .. 481a 
 
 Opening of the record . . . . . . . . 478 
 
 Priority of 
 
 Land Debentures . . . . . . . . 484e,d 
 
 Recorded charges .. .. .. .. 483a, I 
 
 Recorded title .. .. .. .. 482a- Zk 
 
 Protection of unregistered interests . . . . . . 480 
 
 Transmission by 
 
 Bankruptcy . . . . . . . . . . 479& 
 
 Death .. .. .. .. .. 479 h-j 
 
 Judgment . . . . . . . . . . 4791 
 
 Mortgage .. .. .. .. .. 479A 
 
 Unregistered Interests . . . . . . . . 480a-c,i-o 
 
 Patent-rights .. .. .. .. .. 470 
 
 Ships, as regards . . . . . . . . . . 470-4* 
 
 Bankruptcy-trustee . . . . . . . . 471/ 
 
 Beneficial Interest . . . . . . . . 470A 
 
 Certificate authorizing sale or mortgage at a distance from the 
 
 register . . . . . . . . . . 47lh-2d 
 
 Change of the locality of the register . . . . . . 472e 
 
 Disposition on the register . . . . . . . . 472f,n 
 
 Legal estate . . . . . . . . . . 470» 
 
 Mode of registration . . . . . . . . 471a 
 
 Mortgage . . . . . . . . . . 47lc,e,i 
 
 Notice of rival interests . . . . . . . . 416il 
 
 Partial interests . . . . . . . . . . 47lm 
 
 Priority of registered dispositions . . . . . . 472o-4i 
 
 Satisfaction of Mortgages . . . . . . . . 471y 
 
 Shares . . . . . . . . . . 470/ 
 
 Transfers .. .. .. .. .. 471«\A 
 
 Transmission . . . . . . . . . . 4.7 Lb, c 
 
 Stocks and Shares, as regards 
 
 Bankruptcy-trustee .. .. .. 469£,-70«,i 
 
 Beneficial Interests .. .. .. 468b,f,g-9h,506n-8a 
 
 Joint ownership . . . . . . . . . . 467b 
 
 Legal estate .. .. .. .. 467b,-8i-9b 
 
 Married women . . . . . • . . . . 4706 
 
 Notice .. .. .. .. 468b-g,i,-9c-g,i 
 
 Partial Interests .. .. .. .. 467 l,m, -8b 
 
 Priority .. .. .. .. 468i-/,',-9a-i 
 
 Secret trust . . . . . . . . . . 506«-8a 
 
 Stop-order .. .. .. .. .. 469A 
 
 Transfer by 
 
 Entry on books, &c . . . . . . . . 467c-tf 
 
 Share-certificate . . . . . . . . 467&-8a 
 
 Stock-certificate .. .. .. 467f,ff-j, -70c, 506? 
 
 Trust .. .. .. .. 468bJ,(j-9h,b06n-8a 
 
 Rejection of Offer . . . . . . . . . . 109/ 
 
 Relation back in 
 
 Bankruptcy and Liquidation . . . . . . . . h%ha-7b 
 
 Winding-up -.. .. .. .. .. b§7c-8d 
 
 Release 
 
 By Co-creditors .. .. .. .. .. 22 
 
 From 
 
 Chose in action, extinguishes counter-claims . . . . 427c,d 
 
 Claims, made 
 
 For Value, is conditional on render thereof . . . . 297? 
 
 Gratuitously, is or is not valid . . . . . . 1437c 
 
 Incumbrances . . . . . . . . . . 455&
 
 INDEX. 
 
 Right : Agreement for, depends on render of the consideration for 
 
 296/^,-7^,-8-9 
 
 Of 
 
 Co-debtor 
 
 Part of land from a rent, &c. 
 
 Relief against 
 Breach of condition 
 Forfeiture and Penalties 
 
 21 
 
 18-21 
 
 31L?-17a 
 310-7a 
 
 Religion : 
 
 Change of, may be made a ground for forfeiting an estate . . 200/ 
 
 May be promoted even (in some cases) by means tending to 
 Perpetuity.. .. .. 2'JbcJ',g,i-m,p.-(!>a,b,n.(i.) 
 
 Religious 
 House : Gift to, is void for Perpetuity . . . . . . 274n. (n.) 
 
 Influence invalidates a disposition, unless testamentary .. .. 132/i, -3b 
 
 Purpose . . . . . . . . 275c,/,y,i,/,_p-6J, modified 21bk 
 
 Remainder is or is not valid 
 
 In general, if it be 
 
 Contingent .. .. .. .. .. 263 
 
 Vested .. .. .. .. .. .. 213,-62 
 
 Following after an 
 
 Entail .. .. .. .. .. .. 49/ 
 
 Fee-conditional . . . . . . . . . . 220 
 
 Trangressing the Perpetuity rule, and being 
 
 Contingent .. .. .. .. .. 263 
 
 Vested .. .. .. .. .. .. 262 
 
 Renewable Leaseholds : 
 Beneficiaries interested under the original lease are interested in a 
 renewal . . . . . . . . . . . . 195a; 
 
 Fiduciares are authorised to obtain renewals of, . . . . 367c 
 
 Obtaining of renewal from a different person from him who granted 
 the lease is notice of the capacity in which he grants it . . 450& 
 
 Perpetuity-rule affects: how f ar . . . . . . 267« 
 
 Purchaser &c. of, must inquire into the title previous to the last renewal 450i 
 
 Rent : 
 
 Covenant to pay, in grant of a new rent-charge, does not run with the 
 estat9 .. .. .. .. .. .. Y12c,-Zc 
 
 Defined .. .. .. .. .. .. 3 
 
 Is 
 
 Apportioned as to space 
 
 Consideration to support a dealing against creditors 
 
 Extinguishable : how, 
 
 Redeemable : when, 
 
 Secured : how, . . . . , . 
 
 Need not be Certain nor Annual 
 
 .. 149i,-50« 
 
 554e 
 
 17-20 
 
 366/"2 
 
 304n. (i.),-66/l 
 
 la 
 
 Omission of, in an agreement for a lease afterwards acted on, does not 
 invalidate the agreement . . . . . . . . \0ld 
 
 Rents and Profits : Purchaser is entitled to, from what time . . 84-92 
 
 Re-opening of Foreclosure .. .. .. .. 3Wi-j 
 
 Repair : "Want of, in the subject of sale, disentitles the vendor to 
 enforce the contract : when . . . . . . . . 306/ 
 
 Representation : see " Fraudulent representation.'
 
 cxx. INDEX. 
 
 Repurchase under a right reserved must be made -within the time 
 limited : whether, .. .. .. .. .. 315i,-6« 
 
 Reputed Ownership: see " Order and disposition." 
 
 Requisitions on Title : Time for sending in, . . . . 302-3 
 
 Rescission and Restitution 
 Entitles 
 
 Purchaser and subpurchaser to repayment of price and deposit, and 
 to lien . . . . . . • • • ■ • • 93/-i 
 
 Vendor to what compensation from a purchaser who has entered . . 93e 
 
 Is 
 Granted along with Damages for fraud . . . . . . 114/i 
 
 Precluded : when, if sought on the ground of 
 
 Breach of Contract .. .. .. 29ia-9k,esp.-4e 
 
 [For details, see Table of Contents, ch. xxxvi.] 
 Fraud . . . . . . . . 2S8a-91m, and sec-9\n 
 
 [For details, see Table of Contents, ch. xxxiv.] 
 Mistake .. .. .. .. .. 280c-4i 
 
 [For details, see Table of Contents ch. xxxiii.] 
 Need not be in writing . . . . . . . . . . 179 
 
 Of a contract by performance of which a third person would be 
 benefited . . . . . . . . . . • • 163 
 
 On the ground of 
 Breach of contract .. .. .. .. .. 807h-8f 
 
 Fraud .. .. .. .. .. 288e,f,-89d-(/,9le-l 
 
 Mistake .. .. .. .. .. .. 283«-4« 
 
 Reservation of Reversion is not sufficient consideration to entitle 
 the lessee (unless under rent) to priority over an earlier fraudulent or 
 gratuitous dealing . . . . . . . . . . 60o« 
 
 Res 
 
 Inter alios .. . . . . . . . . . . 162 
 
 Judicata .. . . . . . . . . . . 7M-ic 
 
 Restitution: see "Rescission." 
 
 Restoration of benefits derived under an invalid contract, &c, is 
 necessary to its rescission . . . . . . . . 113/ 
 
 Restraint on 
 
 Alienation (or disposing power) : 
 
 Contravention of . . . . . . . . . . . 246n. (in) 
 
 Evasion of, . . . . . . . . 246*-<7 and n. (i) 
 
 Is or is not valid, when imposed 
 On 
 Any person . . . . . . . . . . 245«-6e 
 
 Particular persons ; as, an 
 Absolute owner . . . . 246 n. (n., in), 7«-5(M, 249z 
 
 Infant .. .. .. .. .. 248m 
 
 Married "Woman 
 As regards the perpetuity rule .. .. 24&d,-58a,b,b,l 
 
 Otherwise .. .. .. 138»-9*,-9el,-2460-*,365»v 
 
 Tenant-in-tail.. .. .. .. .. 250c-lA 
 
 Respecting an 
 
 Annuity .. .. .. .. .. 249d,ff 
 
 Leasehold .. .. .. •. .. 250« 
 
 Marriage . . . . . . . . • • 201 
 
 Resulting Uses and Trusts .. .. 96-7,322«-3A,-4/-7*,438
 
 INDEX. cxxi. 
 
 Retraction of Offer .. .. .. 109,-47^,^1, g2,h 
 
 Reversion : 
 
 Condition passes with, . . . . . . . . . . 208c-/ 
 
 Is not 
 
 Invalidated by the perpetuity rule . . . . . . 261 
 
 Subject to 
 
 Curtesy.. .. .. .. .. .. 43 
 
 Dover .. .. .. .. . . .. 44 
 
 Of Married Woman in a chose in action .. .. .. HOj-k 
 
 Purchase of, or Usurious clause in mortgage of, is invalid, if from a 
 
 Needy person .. .. .. .. .. 128/-30c 
 
 Prodigal .. .. .. .. .. .. 20SM0/ 
 
 Vendor of, is entitled to interest as from what time . . . . 89c 
 
 Reverter : see " Possibility of Reverter." 
 
 Revocation of 
 Authority, is valid agt. a Purchaser, &c. : when, .. ., 504i, 369/3 
 
 Deed of Gift : must sometimes be authorized therein, . . . . 128c,d 
 
 Disposition 
 
 Need not perhaps be Definitive . . . . . . . . 976 
 
 Is or is not valid agt. 
 
 Creditors, &c. . . . . . . . . . . 548n. (h) 
 
 Purchasers, Mortgagees, &c., . . .. .. 605d,-7m-9h 
 
 " Rich " Watermeadow .. .. .. .. 304d 
 
 Right of 
 
 Action : 
 
 Defined and explained (whether equitable or otherwise) 3, Ap.viii-x,xv-xix 
 Is barred by the st. of limitations . . . . . . 28 
 
 Wife's, belongs (how far) to husband . . . . . . 55 
 
 Pew : see " Pew-right." 
 
 Way : see " Way-right." 
 
 Ring-fence : Land sold as lying within, . . . . . . 305m 
 
 RirARIAN-RIGHTS . . . . . . . . . . IQa 
 
 Roman Catholic purposes : Trust for, is valid : how far, \2>Qe,d,27hk,2),-6a,b 
 
 Rule 
 Against Perpetuities : see " Perpetuity-rule," 
 In cxparte Waring : see " Creditor is Bound by contract," 
 
 " Creditor is entitled to the benefit," 
 In Shelley's case : see " Shelley's case : Rule in." 
 Of positive law : see " Technical rules." 
 
 Rumour is sufficient to affect with notice in some cases . . . . 444<f-/ 
 
 Sailors 
 Are protected against the effects of their prodigality . . . . 129«1 
 
 Corporations may grant land for homes for, . . . . . . 363e 
 
 Sale [Land see " Contract," Purchase money," " Purchaser," 
 " Vendor."] 
 By 
 Court : 
 Income passes to purchaser from what time . . . . 89 
 
 Writing is generally unnecessary to, .. .. .. 190ff,J 
 
 Execution-creditor, is protected agt. bky.-crs. .. ,. 573n.(i) 
 
 Fiduciary, may not be made to
 
 INDEX. 
 
 Himself .. .. .. .. .. 19le-2d 
 
 His Beneficiary ; when .. .. .. 193a-e,g,h,-4a,b 
 
 Life tenant, may not be made to reversioner : when, . . . . 193/ 
 
 Conditions of : see " Conditions of Sale." 
 
 If subject to a previous dealing; does not confirm it . . . . 358d,e 
 
 Is authorized by Statutes in certain cases 363g,h,k,m,-4ff;h,n,p :,-bg,h,k,m,o,- 
 
 6,-7b,e-ff,j,k,-8a,n,p 
 Under Power, takes what priority, when conferred by 
 Disposition .. .. .. .. 359,esp.g-j,6ll 
 
 Law .. .. .. .. .. .. 37Qi-q 
 
 Sanitary Authorities 
 Are authorized to deal with property 
 Estate of, vests on appointment 
 
 Satisfaction of 
 Debt 
 Terms attendant 
 
 Saving's Bank deposit of Married Woman 
 
 Schools' Trustees are authorized to sell 
 
 Scientific Purposes : grants for, . . 
 
 SCINTILLA JURIS 
 
 Scrip : Legal estate in, is transferred : how, 
 
 Sealing and Delivery may be substituted for signature 
 
 Secretary : 
 Notice is imputed through, to Company 
 To Public Works' Loans Commissioners : Estate of, vests 
 ment 
 
 4.0Za,b,TL.(u) 
 
 when, 
 
 on appoint 
 
 365a 
 4£lm 
 
 21 
 
 603 
 
 366m 
 
 368/ 
 
 439n.(i) 
 
 426A,t 
 
 184*,/ 
 
 459r 
 441n 
 
 Secret 
 Disposition with power of revocation is postponed to subsequent 
 
 purchasers, &c, .. .. .. .. 6Qhd,-7m-9h 
 
 Fraud, postpones the running of the st. of limitations . . . . 27a 
 
 Trust affects purchaser, &c. ; when, . . . . . . 505-8 
 
 Securities for Money [and see "Mortgage"] are chattels .. 4 
 
 Seignory: Described .. .. .. .. .. 10 
 
 Seizure of Goods is valid agt. bankruptcy creditors .. .. 571#-2« 
 
 Separate Estate : see " Husband," " Married Woman." 
 
 Separation-deed is valid agt. husband's creditors : when, .. 553t?,60i 
 
 Sequestrator in Ireland . . . . . . . . 563e 
 
 Set-off as between 
 
 Debtor, &c, and one who derives under the creditor, &c, . . 348?-o 
 
 Executor and testator's estate . . . . . . . . 330;«1 
 
 Mortgagee and representatives of mortgagor . . . . . . 339d,e 
 
 Settlement : 
 Bankruptcy : see " Settlement : Limitation." 
 
 Beneficiary under, is entitled to a lien on the interests of the other 
 
 beneficiaries ,, ,, ,, ., . . 330e*m
 
 INDEX. cxxiii. 
 
 Breach of covenant to make, does not exonerate from similar reciprocal 
 
 covenant . . . . . . . . . . . . 306^: 
 
 By Prodigal, is not invalidated by absence of power to revoke it . . 128d 
 Creditors may be paid by settlor setting it aside [N.B. This has been 
 
 reversed in a case not reported in L.ll. 18 CD.] . . . . 541/ 
 
 Divorce affects : how far, . . . . . . . . 69a-i 
 
 Equity to, .. .. .. .. .. .. 60-1,60/1 
 
 Frame of, as regards 
 
 Entail, or strict settlement, of 
 
 Chattels .. .. .. .. .. 65-6 
 
 Freeholds .. .. .. .. .. 63-5 
 
 Equal division .. .. .. .. .. 66-7 
 
 Limitation over on bankruptcy . . . . . . . . 587 j -9k 
 
 "Wife's power to make a will . . . . . . . . 139-40 
 
 Infant can make : how far .. .. .. .. 1186,^,-9 
 
 Is or is not [and see "Marriage is or is not Consideration "] void 
 against 
 Bankruptcy-creditors.. 517/,<7, -564-600, esp. hb7j,-8g-s,-97c-Jc,-8b-i 
 
 Creditors in general .. 517/,y, -39-64, esp. bi5h-6m,-7g,h,-6a-60k,-2f,-3b 
 
 Husband . . . . . . . . . . . . 561b-n 
 
 Purchasers . . . . . . . , . . 601«-9A 
 
 Limitation in, to take effect on bankruptcy, is void . . . . b87j,-9h 
 
 Married Woman's right to, 
 
 Nature of, and details respecting .. .. 60k,-la,b,60jl 
 
 Release of, . . . . . . . . . . 140/', k 
 
 Perpetuity -rule affects a, however ancient . . . . . , 256-7 
 
 Policy of encouraging, . . . . . . . . . . 558n(i.) 
 
 Property subject to : 
 Leases of, 
 
 Are authorized . . . . . . . . . . 36om 
 
 Take what priority . . . . . . . . . . 37le-l 
 
 Lien on, . . . . . . . . . . . . 330e-m 
 
 Sales of, 
 
 Are authorized . . . . . . . . . . 365;>j 
 
 Take what priority . . .. .. .. .. 371e-j 
 
 Purposes of, . . . . . . . . . . 62-3 
 
 Right to rectify, as against purchaser with notice .. .. 617a 
 
 Sewers' Commissioners are authorized to make 
 
 Dispositions . . . . . . . . , . . , 3655 
 
 Purchases compulsorily . . . . . . . . 370/ 
 
 Shareholder can recover against Company for misrepresentation , . 287/1 
 
 Shares and Stocks : 
 
 Equities affecting an assignee of, . . . . . . . . 416A 
 
 In 
 
 Canal Company, may be chattels within the bills of sale act . , 522a,b 
 Company : see " Registration of Title to Stocks and Shares." 
 Legal estate in, 
 Passes by 
 
 Bankruptcy . . . . . . . . . . 442n, (i) 
 
 Transfer .. .. ±l8p s -2bi-u,x,-§a-g,l,m,seeb97n 
 
 Priorities in, when the Legal estate is 
 
 Transferable : see " Registration of Stocks and Shares." 
 
 Not transferable .. .. .. .. ,, 416A 
 
 Shelley's case : Rule in . . . . . . . . 239-40 
 
 Sheriff's officer: Notice of act of bankruptcy is imputed from: 
 
 when .. .. .. .. .. ., 575,. 
 
 Shifting- clavsb : see " Limitation of Interest * * * Shifting the estate."
 
 czxiv. INDEX. 
 
 Ship: 
 
 Legal estate in, is transferable : how, .. .. .. 427^, h 
 
 Priority of interests in, agst. 
 
 Bankruptcy-creditors . . . . . . . . 574/fc 
 
 Others : see " Registration of title to a Ship." 
 
 Signature is necessary : 
 
 By whom . . . , . . . . . . . . 183«-45 
 
 In what 
 
 Cases .. .. .. .. .. .. 178i-80A 
 
 Name .. .. .. .. .. .. 423/ 
 
 Position . . . . . . . . . . . . 182e-i 
 
 "With what purpose . . . . . . . . . . I82e-i 
 
 Silence 
 Implies a Promise : when . . . . . . . . 165n (i) 
 
 Is Fraudulent : when . . . . . . . . . . 291w-3i 
 
 Solemnities : See " Formalities." 
 
 Solicitor 
 Agent of : see " Solicitor : Notice." 
 Clerk of : see " Solicitor : Notice." 
 Is 
 Bound to make good a representation that an interest with which 
 his client is dealing exists . . . . . . . . 80dl 
 
 Entitled or not to 
 Accept a Gift . . . . . . . . . . 194« 
 
 Lien for Costs . . . . . . . . . . 335»-6/ 
 
 Negotiate a sale of a Client's property to himself .. .. 19lj-2d 
 
 Priority in respect of his lien . . .. .. 4:02f,ff,o61o,p 
 
 Necessary to Attest a bill of sale or a warrant to confess judgment 141^,/ 
 
 Notice to the client of, respecting an 
 Act of Bankruptcy is imputed through 
 
 Himself .. .. .. .. .. 575Z.M 
 
 His Clerk .. .. .. .. .. 575^,$- 
 
 Rival Interest is imputed through 
 
 Himself .. .. .. .. 459n,-62k-»i 
 
 His Agent .. .. .. .. .. 459o 
 
 His Clerk . . . . . . . . . . 459^ 
 
 Undue Influence is negatived by employment of, . . 138#,456el,c,2 
 
 Specific 
 
 Charge, takes priority over a general lien . . . . . . 346A 
 
 Performance is 
 Enforced : when 
 
 Generally .. .. .. .. .. 150/- 15 
 
 Of something resembling what was contracted for 80d,n(dJ ,101/ 
 
 Refused in case of 
 
 Delay .. .. .. .. .. .. 30<r/,<e 
 
 Misleading contract . . . . . . . . 106 
 
 Springing Limitation : see " Limitation of an Interest * * * Springing 
 up." 
 
 Standing by while another acts in reliance on a mistaken belief binds 
 the party who stands by to make good that belief . . 79^, and see 291m-3t 
 
 Statute : 
 Mistakes in, . . . . . • . . . . 367n(«) 
 
 Of 
 Frauds .. .. .. .. .. .. 178-90 
 
 [For details, see ch. xxi, xxn.]
 
 INDEX. 
 
 Limitations : see " Limitation of Actions." 
 Uses : see " Uses." 
 
 Stock [and see " Shares and Stock."] 
 In Trade : 
 
 After-acquired, is assignable even as to the legal estate 
 Bankruptcy- creditors priority over a dispositon of, 
 Of Descent . . 
 
 Stop-order .. 
 
 Stoppage in transitu : 
 
 Explained . . . . . . 
 
 Extinguished by transfer of documents of title 
 
 Right of, against Purchaser with notice . . . . 
 
 Sitbject and object of dealing : Identification of, 
 Is necessary 
 May be made by oral evidence 
 
 "Subject to" a previous dealing .. 
 
 Sublessee is, or is not, liable on covenant in lease .. 
 
 Sub-purchaser is entitled to lien 
 
 "Substantial and Convenient" defined .. 
 
 Succession duty is 
 Displaceable under a disposing power 
 Payable by purchaser : when 
 Secured by lien 
 
 superflous lands 
 
 Support (right to) : 
 Nature of 
 
 Adj acent, . . . . . . . . 
 
 Subjacent, .. .. .. .. 
 
 Prescription for, under 
 
 Judiciary law . . . . . . . . 
 
 Statute-law 
 
 Sltkety : 
 Contract with, may benefit or bind principal creditor : when, 
 Is or is not entitled to 
 Disappoint the principal creditor by conveying away his own 
 Priority, in respect of his right to securities, over 
 Creditor's right of set-off 
 Mortgagee's right to 
 
 Consolidate . . . , . . . . 
 
 Legal estate 
 
 Surprise invalidates a dealing . . . . . . 
 
 Surrender 
 By operation of law : may be oral , . . . . , 
 
 Is subject to incumbrances 
 Legal estate may be surrendered : how, 
 
 " Tacking " defined 
 
 Tail see " Entail." 
 
 212el 
 
 582/,-iW,-5r-7< 
 45 
 
 434/i-w 
 
 377o 
 511a 
 
 417y,/t 
 
 101 
 1056 
 
 358 
 
 173(7, -4Z-5 
 
 330c 
 
 304n^ 
 
 353, -M 
 
 .. 92e,386r7 
 335J 
 
 13,-5 : 
 15:, -6 
 
 306 
 31 : 
 
 165-6, -757; -7c 
 
 property olOl 
 
 562* 
 
 349<? 
 ..39U,n.(m) 
 
 121 
 
 180<7,*,n.(i) 
 
 3486 
 
 424i,J 
 
 .. 388n.(m) 
 
 App. 17.
 
 cxxvi. INDEX. 
 
 Telegraph : contract by, . . . . . . , . 183« 
 
 Tenant 
 
 At Will can acquire the feesimple by the statute of limitations . . 26c 
 
 For Life: see " Life-tenant." 
 From Year to Year is 
 
 Capable of acquiring an estate by the statute of limitations . . 26d 
 
 Liable to perform a covenant [and see " Sub-lessee "] . . . . 174c 
 
 In Common: see " Coowner." 
 In Tail: see "Entail." 
 
 Statute of Limitations runs in favour of, when . . . . 26c, d, -7/ 
 
 i 
 Tender of Conveyance before enforcing a contract is necessary: when 8oe,-6a 
 
 Tenement 
 
 Defined . . . . . . . . . . . . 1 
 
 Descends like a Chattel : when, . . . . . . . . 5 
 
 Is treated like a Chattel : when . . . . . . . . 4 
 
 Law of, contrasted with that of chattels . . . . . . 3 
 
 Terms 
 
 In Agreement : 
 Essentiality of, see " Essential Terms." 
 Must be 
 
 Ascertained or ascertainable . . . . . . . . 100-5 
 
 Written : when, . . . . . . . . . . 18lc/-2d 
 
 Of Years : 
 Attendant on the inheritance : see " Attendant terms." 
 Belonging to Wife .. .. .. .. .. 56,-7 
 
 Entail of, . . . . . . . . . . 53 
 
 Nature of, . . . . . . . . . . 4 
 
 Testamentary disposition [and see " Will."] 
 
 Definition and Kinds of, . , . . . . . . 82 
 
 Revocable nature of , . . . . . . . . 358 
 
 Thelluson Act against Accumulation .. .. .. 272-3 
 
 Third person is entitled to 
 
 Prevent Rescission of a contract: when .. .. 113, 290 i, -If '-h 
 
 Sue on a contract : when, see " Privity of Contract." 
 
 Time, at which 
 
 Contract is to be performed is 
 Essential 
 
 By its own nature, in case of 
 
 Advance of money . . . . . . . . 299<? 
 
 Business sold as a going concern . . . . . . 300f,ff 
 
 Expedition being necessary . . . . . . . . 299c,/ 
 
 Fluctuating body of beneficiaries . . . . . . 300i 
 
 Fluctuating fund or value . . . . . . 300d,e 
 
 Inability to perform . . . . . . , . 300/ 
 
 Inequality of the damage resulting from breach . . ■ . ZOQd 
 
 Leasehold . . . . . . . . . . 300a 
 
 Mining enterprise . . . . . . , . 300A 
 
 Money to be raised . . . . . . . . 299df,g 
 
 Purpose requiring this . . . . . . . . 299c,/ 
 
 Renewal of lease . . . . . . . . 299*7 
 
 Requisitions on Title .. .. .. .. 302/<-3« 
 
 Residence at the subject of sale &c. being intended . . 299c 
 
 Reversionary Interest . . . . . . . . 3006 
 
 Title [and see " Requisitions on title "] . . 300/-l«,-2c,/,A 
 
 Valuation .. .. .. .. ,. 300c
 
 INDEX. cxxvii. 
 
 Independently of its own nature, if it be 
 
 Agreed to be so . . . . . . . . . . 301>--2^ 
 
 Hastened by Notice . . . . . . . . SOlo-q 
 
 Prolonged unnecessarily . . . . . . . . 303 
 
 Substituted for that originally fixed . . * . . 302d 
 
 Fixed by implication : when . . - . . . . . . 88^, 102/ 
 
 Waived: when .. .. .. .. .. 303/-/ 
 
 Income and Interest accrue to vendor and purchaser respectively . . 87-92e 
 Notice of rival interest must be given to purchaser &c. 418d-s,-9a,ff-i,n. (i,ii) 
 
 Tithe kent-chakge in Ireland may be sold .. .. .. 364y 
 
 Title [and see " Indisputable Titles."] 
 Deeds : 
 Deposit of, see " Deposit." 
 
 Entail of, . . ,. . . . . . . 6h 
 
 Enquiry for, is necessary to entitle a purchaser to certain priorities 449i-52/ 
 
 Unless excuse given .. .. .. .. 454/i-5c 
 
 Memorandum on, should be made : when, . . . . 504/-A 
 
 Possession of, confers priority as regards the 
 
 Custody of them .. .. .. .. 379n.(i),381«-s 
 
 Production of them, though obtained by force or fraud 341-2, 381«-e 
 Property comprised in them 
 
 In general „. .. .. .. 43lff,k,500a-3f 
 
 Being a chose in action .. .. .. .. 388n.(n) 
 
 Retention of, implies a design to defraud purchasers, &c. . . 606p 
 
 Defined in its narrower sense . . . . . » . . Ap.x 
 
 To property 
 
 Commences : how, . . . . . . . . . . 23 
 
 Is 
 
 Investigated on a purchase . . . . . . . . 382»z-3e 
 
 Purchaser's right 
 
 Conferred by law . . . . . . . . 308a 
 
 As a condition of the contract . . . . . . 103d-4a 
 
 To be shewn 
 
 To a limited extent . . . . . . . 382j-e 
 
 "Within proper time .. .. .. 300j-ln,-2e,f,</ 
 
 If requisitions sent in within proper time . . . . 302h-3a 
 
 Not if precluded . . . . . . . . 3086-/ 
 
 Uncertain, .. .. .. 381-3, and see 3f,Jin, -4: 
 
 Tolls claimable by prescription . . . . . . . . 30<? 
 
 Tombs : Trust for, is void . . . . . . . . 21bl,m 
 
 Towns 
 
 Improvement : compulsory purchase for, . . . . . . 37M 
 
 In Ireland : governing bodies of, may make dispositions . . . . 345c 
 
 Trading on Fictitious Credit . . . . . . . . 499i-n 
 
 Transfer [and see " Annuity," " Land Transfer," "Patent Rights," 
 " Registration," " Shares," •' Ship."] 
 
 In blank entrusted to a broker . . , . . . . . 505 
 
 Treason affects property : how, . . . . . . . . 70d 
 
 Trees 
 
 Are an Hereditament . . . . . . . . . . 2[1.3] 
 
 Purchaser of, is entitled to priority over a previous fraudulent or 
 
 gratuitous dealing . . . . . . . . . . 604/" 
 
 Purchaser of property where they grow is exonerated by 
 
 Destruction of them : see . . . . . . . . 30H,jp,q
 
 cxxviii. INDEX. 
 
 Misstatement as to their Existence or Average size . . . . 304?, -5n 
 
 Title to thorn failing . . .. .. .. .. 304^,2 
 
 Trust : 
 
 Constructive, .. .. .. .. 322«-3/c,-4/ 
 
 Created by precatory words .. . . . . . . 97 
 
 Deed: see " Creditors ; Trust-deed for," 
 
 Effect of the word " trust " .. .. .. .. 97*7,438* 
 
 Estate or fund 
 Devolves, as to the estate of the 
 
 Beneficiary (on failure of heirs), to the trustee . . . . 47& 
 
 Trustees, like a chattel .. .. .. .. 5361 
 
 Is 
 
 Followed: when, .. .. .. .. .. 331e-2* 
 
 Transferable by Vesting order .. .. 441j),q, andn.(i) 
 
 Mixture of , with other funds .. .. .. .. 391/* 
 
 Executorv, construed, as to the rule in Shelley's case .. 2356,-39-40 
 
 Explained .. .. ., .. .. .. Ap. xv. 
 
 For Creditors : see "Creditor." 
 
 Imposed on a Married Woman, does not impliedly authorize her to 
 
 contract to exercise it . . . . . . . . . . \4\d 
 
 Legal estate is carried by the word " trust " when ; . . . . 438* 
 
 Limitations : statute of, does not extend to, . . 28-9, qualified 26/t 
 
 Precatory, . . . . . . . • . . . . 97 
 
 Resulting, .. .. .. .. 96-7,322«-37,-,-24/-7<,438 
 
 -Terms in a Settlement . . . . . . . . . . 65 
 
 To 
 Sell, imposed on a married woman, does not impliedly empower her 
 
 to contract to sell . . . . . . . . . . 141^ 
 
 Lease to testator's relatives, is within the perpetuity rule . . 257c 
 
 Trustee [and see " Trust," and, as to points common to him with other 
 fiduciaries, see " Fiduciary.,'] and see Creditor : Trust disposition for, " 
 Assent by, seems necessary to a gratuitous disposition .. V2ii, andn.(i),-5d 
 Bankruptcy-creditors of, are not entitled to goods in his order and 
 disposition .. .. .. .. .. 528«-306,-5-6 
 
 Bare, see " Bare Trustee," 
 
 Incumbrancer, holding a satisfied term is (perhaps) trustee of it . . 401n. (iv) 
 
 Is 
 
 Authorised to dispose of trust- estate : when, .. 352/,-66/-7/,-70y,& 
 
 Entitled to 
 
 Beneficial interest ; on failure of heirs of the beneficiary . . 47A 
 
 Lien .. .. .. .. .. .. 330-1, -4/J 
 
 Priority, in respect of his lien, over one who derives under the 
 beneficiary : when, . . . . . . . . 345*,/ 
 
 Purchase from his beneficiary . . . . . . . . 193«-e 
 
 Liable on a covenant affecting property of which he is assignee . . I71f,fl,-3d 
 Not entitled to 
 
 Assume a position in which interest would conflict with duty .. 191-8 
 
 Sell to himself .. .. .. .. .. 19b-2A 
 
 Knowledge by, is or is not necessary to a gratuitous disposition . . 125ri 
 
 Mixing together two trust-funds .. .. .. .. 391/t 
 
 Negligent entrustment of the indicia of ownership to, does not 
 postpone the beneficiary to one who deals with the trustee as 
 owner .. .. .. .. .. 497«'«-,505/?/?.-8« 
 
 New : 
 Appointment of , . . . . . . . . 367/i, 
 
 Inquiry by, from previous trustee, as to incumbrances.. .. 4546-*i 
 
 Notice is imputed from, to his beneficiary . . . . . . 459** 
 
 Policy of requiring an estate to be registered in the name of, . . 216 
 
 Wrongfully disposing of property (so as to give the disponee priority 
 over the beneficiaries), but afterwards accpiiring it again, becomes 
 again subject to the trust .. .. .. .. 344*i
 
 INDEX. 
 
 Unascertained person : Limitation to, . . . . . . 218 
 
 Unborn person : 
 Child of, see " Child of Unborn person." 
 Limitation to, . . . . . . . . , . 218 
 
 Unchastity : Rules tending to prevent, .. .. .. 201/*-4«" 
 
 Ukconscionable Bargain may be set aside subject to repayment of 
 the purchase -&c.- money with interest .. , , ., 129b-e 
 
 Under-leasehold sold as leasehold . . . . , . 306m 
 
 Undue Influence [and see " Poverty," " Prodigal "] 
 
 Invalidates a dealing . . . . . . . . , , 132f7-3& 
 
 Is negatived by employment of a Solicitor .. .. ., 456cl,c2 
 
 Unfair dealing by obtaining a bargain from an imbecile person . . 133-4 
 
 Unity of Ownership of Servient tenement and profit or easement : 
 
 Prescription is broken by, .. .^ ,. .. 36[?.21] 
 
 Terminates the profit &c. .. .. .. ,. 17b, -8 
 
 Universities are authorised to dispose of property .. .. 366£-70# 
 
 Unlawful or Immoral purpose renders void a dealing : when . . 199,200 
 
 Use and Occupation : Vendor may, after rescission, sue for, . . 186n (i) 
 
 Uses [see " Trust," " Trustee."] 
 
 Generally .. .. .. .. .. .. 437«-415 
 
 In particular, as regards 
 
 Acceptance of the grant by the grantee to uses .. .. 1095 
 
 Constructive uses .. .. .. .. ... 327t 
 
 Covenant transferred to cestui qui use .. .. .. 44 la, b 
 
 Resulting uses .. .. .. .. 326?-7<,438 
 
 Scintilla juris . . . . . . . . 439 n. (i) 
 
 Technical rules applicable to, .. .. .. .. 438s, t 
 
 "To the use of" .. .. .. .. 324A,-73 
 
 Wills .. .. .. .. .. 439<?,n.(n),40n (i) 
 
 Words sufficient to raise, . . . . i . . . 438A,y 
 
 Usurious Contract: see " Unconscionable bargain." 
 
 Value : see " Consideration." 
 
 Vendor [and see " Conditions of Sale," " Deposit," " Factors' Acts," 
 " Purchase-money," " Purchaser," " Sale," " Stoppage in transitu," 
 " Subject to." 
 
 Description of, in a contract, is sufficient : when . . 182b, and (b)n 
 
 Identity of, must be determined, in order to_the validity of the contract 101 
 
 Is or is not 
 Bound 
 As Mortgagee in possession .. .. .. . . 85<f,£,92-3 
 
 To 
 Allow abatement to the purchaser for misdescription 308^-9/.', and notes 
 Discharge outgoings from what time . . . . . . 92d 
 
 Keep premises in repair .. .. .. 85n. /?/,/, 93c 
 
 Pay 
 
 Compensation for 
 
 Losses and Deteriorations .. .. 8bd,e,\ifdJ ,92>a-c 
 
 Misdescriptions .. .. .. 308y- 9k, and notes 
 
 Damages for delay in delivering over possession . . 92a
 
 INDEX. 
 
 Interest on deposit and purchase -money, after rescission . . 93f,h 
 
 Occupation-rent until he delivers possession . . ' 91/-2c 
 
 Repay purchase -money after conveyance, in case of, 
 
 Misdescription . . . . . • • . 309e-/ 
 
 litle proving bad . .. •• •• 150* 
 
 Entitled to 
 
 Compensation for excess, from a purchaser who enforces the 
 contract .. •• •• ,.Z2lg-i, and see IMchf 
 
 Damages from purchaser .. .. .. .. 3 18s, 2 
 
 Deposit, as forfeited .. .. .. •• 313n(i) 
 
 Indemnity from purchaser -who enforces contract . . . . 321/ 
 
 Interest on purchase money 
 
 At what rate .. .. .. •• •• 92/ 
 
 In what cases . . . . . . • • • • 86b-7d 
 
 From what time . . . . . . • . • . 87Jn-9'3c 
 
 Lien for unpaid purchase money agt. 
 
 Purchaser .. .. •• •• •• 328, -77» 
 
 Beneficiaries of purchaser . . . • . . . • 4986 
 
 Sub-purchaser .. ... .. •• 416l,50bd-f 
 
 Purchase money, on what conditions . . . . . . 84-6 
 
 Specific performance of contract to sell property which he had 
 Disposed of gratuitously already .. .. 601n.(n) 
 
 Supposed to be less, or less valuable, than it was, unless he con- 
 vey the whole . . . . • • • • • • 2Md-f 
 
 Stop, in transitu, goods, the subject of sale .. .. 377o 
 
 Precluded from insisting on his 
 Contract, by 
 Breach of his 
 Engagement for 
 Conveyance . • • • • • • • 296d-7f 
 
 Freedom from such easements as would disable a purchaser 
 from fulfilling the purpose for which he purchased . . 297/,* 
 
 Other Engagements .. .. .. .. 306o-7/ 
 
 Concealment of a defect in the 
 Title .. .. •• -. .. 292&,Z 
 
 Quality of Goods . . . . . . . . 293/,^ 
 
 Inability to 
 Clear off Incumbrances, when the property is . . 
 Advowson . . • • • • 
 
 Other property . . 
 
 Convey 
 
 Property essential to the enjoyment of that sold 
 Quantum of Interest necessary for the purpose for which 
 the purchase was made . . . . 
 
 Misdescription 
 Lien against a 
 Beneficiary of the purchaser 
 Sub-purchaser .. 
 
 Verba de pbjesenti are necessary to a disposition : when 
 
 306n.(i) 
 3056-/ 
 
 29Sc,d 
 
 298* 
 . . 303m-6n,p 
 
 4986 
 Wbd-f 
 
 123J-5y,393-4 
 
 Vested 
 Defined 
 
 Remainder: see "Remainder: Vested." 
 Subject to be divested .. 
 
 Vesting 
 
 Early, is favoured 
 Order 
 
 Void and voidable [see the heads under which the different grounds 
 of invalidity are stated, and the Table of Contents, ch. xi-xvi,xxi- 
 xxv,xxvii,xxviii, and the chapters in which Priorities are treated 
 
 224 
 225 
 
 . . 224«-305 
 44lp,q, andn (i)
 
 INDEX. 
 
 of. And, as to dispositions operating on ihe beneficial but not on tbe 
 legal estate, see "Beneficial Interest: undisturbed," ,' Resulting Uses 
 and Trusts." 
 
 " Voluntary " in tbe sense of 
 Gratuitous: see" Consideration." 
 
 Settlement, &c. is postponed to Bankruptcy creditors . . . , 597 
 
 Spontaneous: see " Fraudulent Preference." 
 
 Volunteer [i.e. Recipient of a free gift] [and see " Consideration,"] 
 is not entitled to the price ■which a purchaser to 'whom he is postponed 
 has paid .. .. .. .. .. .. 601n.(i) 
 
 Volunteer Corps : Grants of land for, are authorized . . . . 368/ 
 
 "War Department : .. .. .. .. .. 368*,-70<? 
 
 "Waring, Exp. see "Creditor is bound by contract," "Creditor is 
 entitled to benefit of contract." 
 
 "Warrant to Confess Judgment : 
 Attestation of, . . . . . . . . . . 141/ 
 
 Registration and validity of, . . . . . . . . 599,600 
 
 "Water-right .. .. .. .. .. 9med.,16 
 
 Way-right 
 
 In gross, may exist, but cannot be assigned nor descend . . . . 8b 
 
 [For points common to it with other easements, see " Easement " 
 and 8n. (i.)] 
 Of Necesssity .. .. .. .. .. 16 
 
 "Who may sue on, and who is liable on, a contract . . . . 152-77 
 
 [For details, see " Privity," and Table of Contents ch. xvii-xx.] 
 
 Widow is entitled to 
 Administer to Husband's estate : see . . . . , . 86n. (b) 
 
 Dower : see " Dower." 
 Share in deceased husband's chattels and chattel interests . . 3ic,d 
 
 "Widower is entitled, how far, to his wife's 
 
 Separate estate . . . . . . . . . , 59/*, i 
 
 Other property, being 
 
 Chattels .. .. .. .. .. .. Ue,9h 
 
 Tenements .. .. .. .. 44a-/,57(?-/,9J 
 
 Wife: see "Convict's wife," "Dower," "Husband," "Married 
 Woman," " Widow," " Widower." 
 
 Wife's sister : Gift to issue of marriage with, . . . . 202a 
 
 Will [and see " Donatio mortis catisa," " Testamentary disposition," 
 " Estate at will."] 
 
 Defined . . . . . . . . . . . . 83 
 
 Formalities for, 
 
 Are necessary : when, . , . . . . . . 1791-0 
 
 Consist of 
 
 Attestation . . . . . . . . . . 184^ 
 
 Signature .. ., .. 182i,-3m,d, and see 183«-4cJ 
 
 Writing : gee . . . . . . . . • • # 180-2 
 
 Frame of , . . . . . . . . . . . . 67 
 
 Gift by, 
 
 Construction of, cy pres [and see " Cypres "] . . . . 241-4
 
 cxxxii. INDEX. 
 
 Definiteness of, seems unnecessary as regards chattels . . . . 97b,c 
 Priority of, over 
 
 Inconsistent testamentary gift .. .. .. SiOa,b,d 
 
 Preceding fraudulent or gratuitous disposition . . . . 604(7 
 
 Uses: statute of, seems to atfect, .. .. 439n(n),440n(i) 
 
 Validity of, when the testator is an 
 
 Infant .. ' .. .. .. .. .. 118? 
 
 Married Woman . . . . . , . . . . 139/-M 
 
 Windfalls, after contract of sale belong to the purchaser . . . . 84 
 
 Winding-up 
 
 -Creditors are entitled to priority over dealings unfairly prejudicial to 
 them 
 
 In general . . . . . . . . . . 564y 
 
 In particular : viz. — 
 
 Arrest of a Ship . . . . . . . . . . 567/ 
 
 Bill of Sale . . . . . . . . . . 520i 
 
 Distress .. .. ,. .. 567/7, -80c, -9k 
 
 Execution .. .. .. .. 567c, -9/, and n.(n) 
 
 Fraudulent praference . . . . . . 590/, and n. (i) 
 
 Landlord distraining .. .. .. 567ff,-80c,-9k 
 
 Limitation prescribing that property of the company shall (in case 
 
 it be wound up) pass to another person . . . . . . 587m 
 
 Transactions subsequent to presentation of petition . . . . 587c-8d 
 
 Is not a lis pendens .. . . . . . , . . 342o 
 
 Relation back in, .. ., .. .. .. 587c- 8^ 
 
 Withdrawal of Consent to the taking of goods out of the possess- 
 sion of another, as regards the 
 
 Bills of Sale Acts . . . . . . . . . . 514/fc 
 
 Order and Disposition clause 53li, and n. (i\),-2e,l,-5a-v,-72a,b 
 
 Witness to a Will is not, nor is his or her wife or husband, entitled 
 to take under it . . . . , . . . . , 191a 
 
 Woman past Childbearing .. .. 257n.(i), and see addenda 
 
 Words : 
 Defined, see each word in its place in this index 
 Of Limitation 222,n.ffJ, and see 233 fin. -5b, and 235f,h,-6c-40h 
 
 Working-men's Dwellings ; grants for, are authorised .. 363/ 
 
 Writing is necessary to a dealing : when 178-82^,-5-90, and see 123-7,423,31 
 
 [For details, see Table of Contents, ch. xrv.,xxi., xxn., l.] 
 
 Wrongful 
 
 Disposition explained . . . . . . . , . . 351n (n) 
 
 Entry, and its effect in creating a new title . . . . . . 23 
 
 Yeomanry Corps : Grants for, are authorised. . .. .. 368£ 
 
 Yorkshire : see " Registration of Deeds." 
 
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